In 1871 A’s trustees (the first party) feued to trustees for the firm of B. and Sons (the second party), their heirs and assignees, two plots of ground forming part of the estate of Blochairn, under the ‘declaration and provision that a street shall be made’ of 60 feet width along the south boundary of the plots, and that it should be formed upon such levels as the first party or their successors in the said lands and estate ‘including any parties who have feued or who may feu or purchase the ground on the opposite side of the said street,’ and the second party or their foresaids might think fit, ‘having regard to the continuation of the same eastward so as to conveniently accommodate the portion of’ the first party’s ‘remaining lands lying . . to the east of the ground hereby feued.’ It was also declared that the second party and their foresaids should be bound ‘whenever required by the first party or their foresaids, including as aforesaid’ to make the one-half of the roadway lying next to the plots disponed to the second party. It was further declared that the first party and their foresaids should be entitled to give a right to use the said road and any others that might be formed by the second party and their foresaids on the ground disponed to their feuars in the remaining parts of the lands of Blochairn, and that the second party and their foresaids should have right of access and power to use any streets which should be formed by the first party or their feuars in the remaining portions of the lands of Blochairn, and the first party bound themselves to insert clauses sufficient to secure these objects in all future conveyances of the lands of Blochairn or parts thereof.
I 1877 A’s trustees sold and disponed part of the lands of Blochairn, lying to the east of the ground feued off in 1871, to C, with their ‘whole rights, title, and interest, present and future, there-in.’ The disposition imposed no obligation upon the disponees to construct any road or any real burden in pursuance of the superior’s obligation contained in the feucontract of 1871.
In an action by C. to compel a successor of the firm of B. and Sons to implement their obligation to make the 60 feet road contained in the feucontract of 1871, held (aff. judgment of the First Division) that the superiors having failed to implement their part of the mutual stipulations as to streets in the said feucontract, neither they nor their successors were in titulo to enforce the counter obligations undertaken by B. and Sons’ trustees.
Opinion that if the superiors under the feucontract had retained the right to enforce the said obligations, that right would have been carried to C. by the disposition of 1877, although neither ‘a successor’ of the superior in terms of the feucontract of 1871, nor vested with a jus quaesitum under that contract.
Judges:
Lord Watson (in the Chair), Lord Shand, and Lord Davey
Citations:
[1899] UKHL 946, 36 SLR 946
Links:
Jurisdiction:
Scotland
Land
Updated: 06 December 2022; Ref: scu.631840