Scottish Court of Session Decisions

By feu-contract, dated 21st and 29th April 1852, the late Sir John Maxwell of Pollok feued to William Young, manufacturer, a portion of the lands of Redds, near Pollok-shaws, extending in all to 12 acres, 9·98 poles. The tenendas and reddendo clauses of the said contract were in the following terms:—“To be holden of and under the said Sir John Maxwell, and his heirs and successors, in feu-farm, fee, and heritage for ever, for the yearly payment to him and them of the sum of £60, 4s. 10d. sterling of feu-duty at two terms in the year, Whitsunday and Martinmas; … And also the said William Young and his foresaids, paying yearly to the said Sir John Maxwell and his foresaids, besides the feu-duty above stipulated, the sum of two shillings sterling of additional feu-duty for every square pole of the said piece of ground on which buildings shall be erected, excepting an addition to the mansion-house of Auld-housefield and a porter's lodge which the said William Young and his foresaids may erect without being liable for any of the said additional feu-duty.”

In 1890 Donald M'Farlane acquired from Young a portion of the said feu, and erected thereon a public laundry, with a reservoir and bleaching-green annexed. On this being erected Sir John Maxwell Stirling Maxwell, the successor of the late Sir John Maxwell in the superiority of the lands in question, claimed the additional feu-duty, as provided by the feu-contract above quoted, not only for the ground actually covered by the laundry buildings, but also for ground utilised in the approaches to the laundry, and certain grass slopes which formed the banks of the reservoir. M'Farlane, while admitting that the additional feu-duty was exigible in respect of the ground actually covered by buildings, disputed the further claim, and accordingly Sir John Maxwell brought the present action, concluding for payment of £87, 15s, A plan was produced, on which the ground in respect of which additional feu-duty was claimed was enclosed within red lines. No claim for additional feu-duty was made for the ground used as a reservoir or as a bleaching-green.

On 11th January 1901 the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor, whereby he dismissed the action.

Opinion.—“In 1852 the late Sir John Maxwell of Pollok feued about 12 acres of his estate to one Young, at a feu-duty of £5 per acre. At that time the ground consisted of a dwelling-house and park, but evidently the parties contemplated that in course of time it might come to be used for building, and so the feu-contract contained a provision for an additional feu-duty in that event. The words which give rise to the present question are, ‘And also the said William Young and his foresaids paying yearly to the said Sir John Maxwell and his foresaids, besides the feu-duty above stipulated, the sum of two shillings sterling of additional feu-duty for every square pole of the said piece of ground on which buildings shall be erected, excepting an addition to the mansion-house of Auld-housefield and a porter's lodge, which the said William Young and his foresaids may erect without being liable for any of the said additional feu-duty, which feu-duty shall begin to run from the first term of Whitsunday or Martinmas after the erection of the buildings in respect of which the same is exigible shall have been commenced, and shall be payable along with the feu-duty above stipulated, half-yearly at Whitsunday and Martinmas by equal portions, and with penalty and interest as above specified.’

About ten years ago the defender acquired from the trustees of the original vassal a portion of these subjects, extending to about 7 3 4 acres. On part of the ground so acquired he has established a public laundry. The actual space covered by the buildings and outbuildings of the laundry is about 2 roods 9 poles, but the space enclosed within red lines on the plan produced is a little over an acre, the difference being accounted for by roads and grass

Page: 666↓

borders. The pursuer makes no claim to additional feu-duty in respect of other parts of the defender's ground, which contain a reservoir, bleaching-green, and pasture land; but he claims it in respect of the space enclosed within red lines on the plea that the whole of that space is, in the sense of the feu-contract, ground on which buildings have been erected, although to the extent of nearly one-half it is open to the sky. The defender, on the other hand, says that additional feu-duty is payable only for ground actually covered with buildings.

The question lies within narrow compass, and receives little aid from authority. Mr Craigie for the defender referred to cases on the meaning of ‘lands built upon or used for building purposes’ in section 128 of the English Lands Clauses Act (section 121 of ours). Mr Hepburn Millar for the pursuer referred to cases on the meaning of ‘part of a house’ in section 92 of the same Act (section 90 of ours). But I do not think that either class of cases helps one much in construing this contract. Certainly the cases as to ‘part of a house’ do not, because they all proceed on the principle that the word ‘house’ in the law of England includes all that would be carried by the devise of a house, and they go back to the definition given by Lord Coke, who says that it includes the ‘buildings, curtilage, orchard, and garden,’ adding that even ‘six acres of land may be parcel of a house.’ That, of course, goes much too far for the pursuer's case.

It is not an unreasonable view of the contract to say that its purpose was to keep the feu-duty at a low rate so long as the ground continued to be used for a mansion-house and park, but to increase it so soon as the ground came to be used for ordinary commercial purposes. Perhaps this view receives some support from the exception in favour of an addition to the existing house and the erection of a porter's lodge. There is also something to be said for the suggestion that, once ground has been staked out for building, it would be inconvenient to inquire too curiously whether every square yard of it is covered with stone and lime. To take the whole enclosure has the merit of simplicity.

But then comes the difficulty of knowing where to stop. One enclosure might provide for a garden of an acre in extent; another might have only a back court measuring a few square yards. Could it be said that the first of these was ground on which buildings had been erected? I think it is not too much to expect that a superior who is stipulating for an additional payment from his vassal in a certain event should define the event in unequivocal terms. If his meaning was what the pursuer suggests, a few more words would have placed it beyond doubt. Clauses of this kind do not create a restriction on the use of property, and may not therefore fall directly under the rule of construction adopted in Russell v. Cowper, 9 R. 660; but they impose a pecuniary burden, and therefore must be construed with a certain amount of strictness contra proferentem.

I do not know that the argument from inconvenience goes very far. The basis of calculation provided by the contract is two shillings for every square pole, and there can be no great difficulty in arriving at the additional feu-duty for the actual space covered by a building when the measure is no larger than that. On the whole matter I incline to think that defender's construction of the contract is preferable to the pursuer's, because it is in literal accordance with the words used. And it harmonises with the view (which is a perfectly intelligible one) that the purpose of the clause was to encourage the leaving of open spaces.”

The pursuer reclaimed, and argued that on a proper construction of the feu-contract the phrase, “a piece of ground on which buildings shall be erected,” covered not only the ground actually roofed over, but also the ground used as accessory to buildings.

Argued for the defender—The Lord Ordinary was right. The stipulation for additional feu-duty was analogous to a restriction on the right of the feuar, and it was well established that such a restriction could not be implied, but must be expressed— Russell v. Cowper, February 24, 1882, 9 R. 660. Taking the words of the feu-contract in their literal meaning, the additional feu-duty was only exigible for land actually built upon. The provision with regard to additions to the mansion-house and the porter's lodge was in favour of this construction.