No. 29. Nov. 23, 1875. As, however, a different view appears to have been entertained by the Court in previous cases I shall not put my judgment on that ground. For I am further of opinion that there has been nothing stated to bring the case under the Act of 1808. Specific days are fixed by statute within which the steps required in order to reclaim must be taken. Where an equitable remedy is sought against the strictness of legal forms it must be supported on equitable grounds. I do not say that if the reclaimer were in danger of losing a valuable right, that very fact might not form an equitable consideration to induce the Court to relieve him of the excessive penalty of his negligence. But we have no such case here. The judgment sought to be reclaimed against is only a possessory judgment. The party is not precluded from resorting to a declarator of his right. There does not seem in this case to have been any mistake or inadvertence. The cause of the reclaiming note not being lodged was mere carelessness or negligence, which is not what the statute contemplates. In these circumstances the party cannot be allowed to plead the negligence of his advisers, even if he himself deliberately intended to reclaim, and instructed his adviser accordingly. LORD NEAVES was absent. THIS interlocutor was pronounced:-"Having heard counsel on the reclaiming note for the complainers against Lord Rutherfurd Clark's interlocutor of 13th November 1875, refuse the reclaiming note, and adhere to the said interlocutor: Find the complainers liable in additional expenses," &c. W. H. COUPER, L.A.—WILLIAM PATERSON, L.A.—Agents. No. 30. Nov. 24, 1875. Alexander v. Butchart. 2D Division. WILLIAM ALEXANDER, Pursuer.-J. G. Smith-Strachan. Property Servitude-Shop Sign-Implied Grant.-A proprietor of a tene- Opinion (per Lord Gifford) that if a thing is to be made a burden upon property, without entering the titles it must be capable of being brought under one of the known servitudes. IN and prior to 1851 William Sime was proprietor of a tenement at Ld. Craighill. the corner of Overgate and Barrack Street, Dundee, consisting of a shop story, and three upper stories and attics. The shop story he occupied himself as a stationer, and continued to do so till 1860. I. In 1851 Sime made certain alterations on the front of the buildings, and inter alia enlarged the shop window upwards, and constructed two panels one over the window, and the other over the door, for the purpose No. 30. of displaying his sign. These panels extended about nine inches above the middle of the joists of the floor separating the shop story from the Alexander v. one above. In 1860 Sime let the shop story to Peter Hean junior, and again in 1863 to John Strathearn junior, and in 1869 his trustees let it to Alexander Butchart. All these tenants, including the defender, during the period of their tenancies occupied the above-mentioned panels with their names and signs. In 1870 the whole property was exposed for sale by Sime's trustees by public roup. Alexander Butchart, who was still tenant of the shop story, then purchased it and received a disposition dated 13th and recorded 16th May 1870, of "all and whole that shop and back-shop, No. 57 Overgate, Dundee, as presently occupied by the said Alexander Butchart," &c. William Alexander purchased the remainder of the property, being the three upper flats and attics. His disposition was dated 8th and registered 11th July 1870. On 20th January 1875 he raised this action against Alexander Butchart, to have it declared "that the centre of the joists is the boundary line dividing the shop No. 57 Overgate, Dundee, belonging to the defender, from the tenement above said shop belonging to pursuer, . . and that the defender is not entitled to paint or place his sign or other inscription on the panels above the window and door of said shop, or on any part thereof which is above the said boundary line," and to have the defender's sign removed, and for interdict. The defender admitted that the panels upon which his sign was placed extended partly above the middle line of the joists which divided his shop from the flat above belonging to the pursuer, and that his name was displayed on the panels. The defender pleaded;—(1) The right to use the said sign having been conveyed to the defender as part and pertinent of his shop the pursuer is not entitled to decree. (2) The defender having right to the said sign as part and pertinent of his property the action should be dismissed, with expenses. A photograph of the front of the premises was produced, and further probation was renounced. The Lord Ordinary, on 17th June 1875, pronounced this interlocutor:Repels the defences, and decerns and declares; as also decerns and ordains, and interdicts, prohibits, and discharges, in terms of the conclusions of the summons: Finds the defender liable in expenses," &c.* * "NOTE.-. A right of property in the wall higher up than the line of separation is not claimed by the defender, but he claims the right to use the said sign;' and the ground on which this right is asserted is, that, as alleged, it was 'conveyed to the defender as part and pertinent of his shop.' There is confessedly no express conveyance of the right, and as the right had not existed for the prescriptive period, it was not an accessory of such a kind as could have passed with the property, unless there was a conveyance, express or implied. The defender accordingly contends that, though there was not an express, there was an implied conveyance of the right; and several cases, particularly those of Preston's Trustees, 22 D. p. 66, and Cochrane v. Ewart, 4 Macq. p. 117, were referred to in support of his contention. The Lord Ordinary accepts the doctrine to be deduced from these authorities, but he is unable to see that the present case is one to which it can be applied. The use of the signboard in dispute is not a necessary or a natural convenience of the shop belonging to the defender. Assuming that every shop must have a sign, there is no reason, other than the caprice of the person by whom it is put up, why the sign should be so large as Nov. 24, 1875. Butchart. No. 30. Nov. 24, 1875. The defender reclaimed.1 LORD ORMIDALE. In this case the pursuer seeks to have is declared (1) that the centre of the joists is the boundary line between the shop belonging to the defender and the tenement above said shop belonging to himself, the pursuer. About that there is no dispute. And (2) that the defender "is not entitled to paint or place his sign or other inscription on the panels above the window and door of said shop, or on any part thereof, which is above the said boundary line.” It is here that the question between the parties arises. cence. The defence to the action proceeds on the assumption that the defender is entitled to the use, to some extent at least, of what is the property of the pursuer. He claims to go beyond the boundary line to a certain extent. His object in doing so is intelligible enough. The only question is, has he the right. The defender does not found on express grant, neither does he found on acquiesIn truth there could be no room for the latter plea, for, prior to 1870, the two properties belonged to a common owner. The defender rests his case entirely on implied grant, to be found, he says, in the terms of the titles, and in the circumstance that his sign required to be placed where it is for the comfortable enjoyment of the property he has acquired in the shop below. And in support of this contention he has cited the case of Cochrane v. Ewart, as decided in the House of Lords. Now, it is a little singular that this being the substantial plea on which the defender founds, he yet has renounced probation without any facts having been either admitted or disclosed to shew that the having his sign in the particular place in question was necessary for the comfortable enjoyment of his shop. He does not even make in the record any averment to that effect. He might have established it by proof, and would have been allowed an opportunity if he had desired it of doing so on a very general averment, but he has made no such averment at all. to encroach upon contiguous property. Here the dispute is only as to the size of the letters composing the sign. They may be reduced, and if they be so, the encroachment complained of by the pursuer will be avoided. The circumstance that the letters were so large as to pass beyond the boundary line was nothing but an accident, and its occurrence the Lord Ordinary thinks neither proves or even suggests that there was conveyed to the defender the right to use his neighbour's wall as if it were his own property, as part or pertinent of the premises conveyed to the defender. A disposition by implication may be sustained where the thing claimed is a necessary or natural appurtenance; but even where the claim is sustained it will be so only with hesitation, because parties are always able by their contracts to include not inferentially, but explicitly, everything which is to be conveyed. The judgment of Lord Chancellor Westbury in the case of Suffield v. Brown, 33 L. J. (Chancery), p. 249, in which prior cases were reviewed, is, as the Lord Ordinary thinks, an instructive decision. Of course it is not binding here as an authority. The views, however, on which it proceeded seem to the Lord Ordinary to be shaped by no peculiar system, but, on the contrary, to be such as should be recognised in a case like the present, whatever be the country in which the judgment is to be pronounced." 1 Authorities referred to.-Preston's Trustees v. Preston, March 7, 1844, 22 D. 366, 16 Scot. Jur. 433; Cochrane v. Ewart, March 25, 1861, 23 D. (H. of L.) 3, 4 Macq. 117, 33 Scot. Jur. 435; Gow's Trustees v. Mealls, May 28, 1875, ante, vol. ii., p. 729; Suffield v. Brown, 33 Law Journ., Chan. 249; Munro v. Jervey, Nov. 23, 1821, 1 S. 161; Buchan v. Carmichael, Nov. 25, 1823, 2 S. 526; Dickson v. Morton, Nov. 25, 1824, 3 S. 310; Bell's Prin. sec. 979. Nov. 24, 1875. We have therefore to determine on the papers before us as they now stand No. 30. whether the right claimed has been established. The defender appeals to the general understanding that a sign is a necessary adjunct to a shop. I admit Alexander v. that in the general case a sign is a necessary adjunct to a shop; but I should Butchart. require a great deal more to satisfy me that it is not an adjunct which must be confined to the property of which the shop is a part. Looking at the photograph which has been laid before us, I am not satisfied that the defender cannot perfectly well place his sign on his own property with equal advantage as on his neighbour's. And I am the more disposed to think that he ought to be content with doing so, because by encroaching upon his neighbour's property he deprives his neighbour of the opportunity of using his property for what may be necessary, in his view, for the comfortable enjoyment of it. In these circumstances the principle of decision in Cochrane v. Ewart appears to me to be inapplic able The only other point that I need notice is the contention of the defender that the implied grant on which he founds can be spelt out of the terms of his disposition, which bears that the property is disponed "as presently occupied" by the defender himself, he having been previously tenant of the shop. But I cannot come to the conclusion that the expression "as previously occupied " was intended to carry such a right as is here claimed, or to do more than merely denote the subject sold. For the reasons I have now explained, I have no difficulty or hesitation in alhering to the Lord Ordinary's interlocutor. LORD GIFFORD.-The first question is what right was conferred by Sime's trustees on the purchaser of the shop story. Did they give him a right to have or to keep his sign or name-board partly projecting upon or over the wall of the flat above? I do not think that they did, and if this had been intended it should have been expressed in the disposition. In like manner, as between Sime's trustees, had they remained proprietors of the shop story, and the pursuer, as the purchaser of the upper stories, I think such a right as the defender contends for here could not have been held to have been reserved. But we are dealing with parties who are both singular successors of Sime's trustees. In point of fact there is very little difference in the dates of their respective titles. The subjects were in the market at the same time. They were bought at nearly the same time. And it is a mere accident that the defender's title to the shop story was first granted and first registered. It was quite well known at and before the sale that the subjects were to be separated, and if the defender looked upon the use of these panels as a sign-board as in any way necessary to the beneficial occupation of the part of the tenement which he was buying he was bound to have asked an express conveyance of the right, and to have had it made plain that that privilege was conferred upon him. This he did not do, but he now says that he relied on continuing to enjoy it as an incident or pertinent of his property, or, as he puts it in argument, he considered it as implied in the grant and conveyance to him. It is true, indeed, that when certain rights are necessary for the fair and reasonable enjoyment of a subject, and are actually possessed with the subject sold, over other subjects belonging to the seller, they will be held as conveyed, and may be effectual against the seller and his successors although they do not enter the records. In all these cases, however, the purchaser of the burdened Nov. 24, 1875. No. 30. subject is held to be put on his guard by the actual exercise of the right claimed, which I think is almost always of the nature of a known servitude. But I do not think that the purchaser of the upper flats can be held to be, as opposed to the purchaser of the shop story, in that position. How could he discover the existence of any such right as that claimed by the defenders. Though he examined the front of the tenement, and saw the sign there, still on referring to the defender's disposition he would find no reference thereto, and he was entitled to trust to the conveyances just given to the defender and offered to himself, and finding no such right in favour of the defender, either conveyed or reserved, he was entitled to conclude that no such right existed. The defender, on the other hand, was bound to know that there might be many uses which the common proprietor was making of his property which must come to an end when the subjects came to be separated, and that the use which he himself had been enjoying was just one of them which he must take his chance of being allowed to continue, if he did not buy the whole property or get a special grant of the right in his conveyance. But, further, I am of opinion that the right claimed here does not come up to the definition of a right necessary for the reasonable enjoyment of the subjects. It is quite clear that the defender can do without it without much difficulty. There are several ways in which he can display his name and sign without encroaching upon his neighbour's wall above him. I am even disposed to go a little further, and say that by the law of Scotland, if a thing is to be made a burden upon property which does not enter the titles it must be capable of being brought under one or other of the known servitudes. Where such is not the case it can only be effectual if it enters the infeftment, or so far as there is a personal contract between the parties. But I prefer to confine my judgment to the first point, namely, that there is no ground here for holding that there was an implied grant to the defender. LORD RUTHERFURD CLARK.-There is no question of property here. The defender claims a right of servitude over part of the pursuer's property for the purpose of displaying his sign. It is not maintained that the alleged servitude has been made the subject of express grant; but it is said that there is an implied grant. The reason urged is this, that prior to the division of the property the wall, as the defender now claims to use it, was used for the purpose of displaying the sign of the occupant of the shop, and that this use of the wall is necessary for the comfortable enjoyment of the shop. There is neither averment nor proof to that effect, and I cannot draw the inference. It is a question whether, supposing there were an agreement for a servitude of the kind, the burden would pass against a singular successor without entering the title. I doubt it very much; but on this point I do not express an opinion. The LORD JUSTICE-CLERK and LORD NEAVES were absent. THE COURT adhered. DAVID MILNE, S.S.C.-HENRY BUCHAN, S.S.C.-Agents. |