Donington v.

31, 1894

It can hardly be questioned that if this were a case of right of footpath only, the presence of swing-gates, giving an opening of 3 feet when swung back could not be held to be an illegal obstruction. The peculiarity of this case is, that as the whole breadth of ground which formed a private road for vehicles has been held to be subject to a public right of passage on foot, the space covered by the locked gate is technically part of the ground over which the right to walk exists. Upon this ground the Sheriff-Substitute has held that the locked gates are not legal, and that the pursuer cannot demand that they be restored by those who have removed them. It is, I conceive, a well-established principle that at any place over which the public have a right to go, the owner of the solum, who is subject to this public right, cannot diminish it in however small a degree, and defend his action only by maintaining that what he has done does not practically interfere with the enjoyment of the public right. He is, as regards mere occupation, by an obstruction of any part of the solum over which there is a right to go, in the same position as if it were a public highway. If anything is put up that prevents free movement over the ground, it must be defended on other grounds than that there is plenty of space left for the traffic. This rule is well illustrated by the case of The Queen v. The Telegraph Company, referred to at the debate, in which those interested in maintaining a right of open road on a highway were held entitled to have the erection of telegraph posts stopped, although it could not be said that ample room was not left for use of the road after their erection. It is therefore, in my opinion, no answer to the defenders' contention to say that the wickets left by the pursuer are amply sufficient for the use of the road by footpassengers. I think they are so, but in my opinion that is not a sufficient answer to the defenders' contention, and if that were the only answer I should reject it.

It is quite true that a servitude road or a mere public right-of-way over the property of a citizen is not in the same position as a highway. In the case of a highway, the right to prevent any erection on the highway is absolute; whereas in the case of servitude or right-of-way it is a question of circumstances whether the right of those who possess the servitude or of the public is to have it removed. But still anything which covers up and prevents the unobstructed use of the ground, subject to the right for its exercise, must be justified by the owner. He may do so by showing that what he is doing is required for the proper working of his estate, as by dividing fields or the like, and that it is an immaterial interference with the rights of the dominant tenement in the one case or of the public in the other. The case of stiles on a footway is an illustration of this. They are obstructions, but may be put up as not interfering materially with the right, and as being requisite for the reason

able working of the owner's estate. This is well settled by decision.

The pursuer's contention in this case is that what he has done has been done to protect his property against illegal encroachments beyond the existing public right, which the leaving of the ends of the road open to free use by any traffic would give rise to, and that in doing so he has in no material way interfered with the enjoyment of the right existing over his property. If that be so, I think it is a good answer to the defenders' objection to what he has done. The questions are, Is this a true statement of the matter?-and if it is, Is it a competent answer to the defenders' objection? It appears to me that the statement is true. The pursuer is compelled to keep a road, wide enough for carriage traffic, free for the use of footpassengers, while having the right to exclude animals, horsemen, and vehicles. If he is to fence himself against the latter, he can only do so by stopping their ingress to this road, which must be accessible to the foot-passengers.

The only remaining question is, has he the right to do so by the mode which he has adopted, and which is the ordinary and reasonable mode where it does not interfere with the rights of others? This question is not by any means an easy one. The Sheriff-Substitute has expressed himself as of the opinion that it is "clearly illegal." I do not feel able to express myself with such absolute confidence, but I have on consideration come to be of a different opinion. It appears to me that the rights of a proprietor, whose private estate is burdened with a servitude road, or a public right-of-way, are to have that right exercised in the way least burdensome to him, consistently with its free exercise, and that any reasonable protection to his estate from other causes tending to restrict or injure his enjoyment, must be conceded to him, even although in a technical sense it may, at a particular point, cause those enjoying the right acquired over his property to do in some minute and immaterial particular what they would otherwise not require to do. This is well illustrated in the case already referred to, viz., the placing of stiles across a footway which is subject to a servitude or a right-of-way, which it has always been recognised is the right of a proprietor, if in utilising his property he requires to erect a fence to divide his ground. No more distinct obstruction could be placed on a way than a stile to be clambered over, yet so distinctly was the right of placing stiles across footpaths recognised in early times, that in the case of Wood in the Faculty Collection, the party, who was objecting to a swing-gate, tried to get over the argument deducible from stiles having been sanctioned by the Court, by maintaining that they improved the footpath. This extraordinary contention was disregarded by the Court, and declared to be

palpably insufficient and contrary to common sense," since, as it was expressed, "all the world knew that styles (sic) were

not an improvement of the footpath, but to a certain degree an obstruction of it."

It thus, as I hold, is established law, that a right to pass from one place to another over private property, is one which does not imply the power to prevent the proprietor from beneficial use and protection of his own property, because his mode of obtaining these things may require the right to be exercised at some particular point under some immaterial restriction, which in no true sense injures the enjoyment of the right. Applying this plainly equitable view to the present case, can it be said that there is any practical distinction between the placing of a stile for crossing an obstructing fence, and the arangement in this case. In the case of the stile, the person using the right is entitled to walk along the ground of the proprietor from one place to another. Nevertheless, he may be required at one or more places on the road, to leave the ground and climb over a fence by steps provided. In this case, at points where fences are provided, he has for a distance of 2 or 3 inches to pass along one side of the road. The cases seem to me to be quite parallel-to be in the words of the judgment in Wood's case, “an interference not material." Lastly, I do not think that a different rule is to be applied in the case of a right of public footway over private property, to that which is applied in a case of servitude road. In both cases I hold that the proprietor is entitled to all enjoyment of his property consistent with his not obstructing the exercise of the right granted, and that in this case the proprietor is not to be held to obstruct the right by the course he has taken, which practically leaves the whole road available to the foot-passenger, and only requires him at the moment of entering or leaving the private property of the pursuer to do so in such a manner as does not injure him, but enables the pursuer to protect his property from illegal trespass by other classes of road traffic.

LORD RUTHERFURD CLARK-There is a road which runs through the property of the appellant called the Hag or Lime Road. By a judgment of this Court pronounced on 23rd June 1893 it was declared "that there is a public road for foot-passengers along the road in question, and that the pursuers and all others are entitled to the free use of said road for foot-passengers."

At a subsequent period the appellant moved the Judge before whom the case depended to restrict the width of the road to four feet six inches. The motion was refused.

In these circumstances the appellant maintains that he is entitled to erect a locked gate at either end of the road with a swing gate at the side of the width of two feet nine inches. He had erected such gates at his own hand, but they were removed by the respondents or some of them. He asks the authority of the Court to their being re-erected. He explains that the road is not fenced, and he says that

while the gates will be an advantage to him both in preventing the use of the road for wheeled traffic, and the trespass of animals, they will not in any way interfere with the use of it as a foot road.

The appellant relies on the case of Suther land, in which it was held that the proprietor of lands through which a public footpath ran was entitled to put swinggates across the footpath, provided that they were not of an obstructive character. I accept that decision as an accurate statement of thelaw. But the question remains whether it will justify the action of the appellant.

I do not understand the judgment to determine more than that an easily opened swing-gate is not an obstruction to a public footpath. It applied to public footpaths the rule which had been established in the case of Wood in regard to a servitude road. Swing-gates do not prevent the full use of the footpath. They interpose no doubt a certain obstacle to its use, but one which the passenger can easily and at once remove. They are a great benefit to the proprietor, and of no disadvantage to the public, and in view of the benefit, the Court thought that the trouble of opening might be thrown out of account.

The appellant cannot bring himself within the rule of this case unless he can show that the locked gates are not an obstruction. I do not think that he can. They cannot be opened by those who are using the road. They are intended to form, and do in fact form, a permanent obstruction at two places of the road. At these two places they reduce its width to 2 feet 9 inches, and absolutely prevent the rest of it from being used. They are, in my opinion, an obstruction, and cannot be justified on the principle of the case on which the appellant relies.

But he urges that the footpath is not obstructed, inasmuch as he leaves at each gate a sufficient space for the exercise of that right. If he had only to submit to a right of public footway through his property, it might be true that the Court would cause to be laid off a footpath of sufficient breadth and no more. But we have no such case before us. It is, I think, the just meaning of the judgment which I quoted that the right of footway exists over every part of the Hag or Lime Road. The public are "entitled to the free use of said road for foot-passengers." It seems to me that the appellant is not entitled to withdraw any part of the road from the use to which it is subject, or to narrow it at any part of its course. I do not mean to say that the appellant may not erect swing gates. I give no opinion on that point. I am dealing with the locked gates only, which I hold to be an illegal interference with the rights of the public.

I confess that I have come to this opinion with reluctance. The gates would probably be of much advantage to the appellant; and I doubt if the public would suffer by their erection. But I am bound to give my decision in accordance with what I believe to be the legal rights of the parties before us.

Donington v.

31, 1894

LORD TRAYNER-The road in question in this case is situated on the property of the complainer-the solum of the road is his. But along that road the respondent and other members of the public have a rightof-way as foot-passengers, but no other or higher right. The respondents' right, however, is one of passage over every part of the road-not merely over a defined footpath or part of it. In September last the complainer, in order, as he alleges, to prevent carting, riding, and driving over said road, erected at each end of the road (I quote from the finding of the SheriffSubstitute) "two gates, one 9 feet wide and locked, the other a swing gate 2 feet 9 inches wide and unfastened." It was admitted at the bar that if the complainer was entitled to erect gates at the ends of the road at all, the swing-gate of 2 feet 9 inches wide was sufficient for the access or egress of anyone who desired to use the road. But the respondents dispute the complainer's right to erect gates at the ends of the road in question, and maintain that he is bound to leave it open and unfenced to its full breadth. The Sheriff-Substitute has sustained this contention on the part of the respondent, and in so doing has taken a view of the rights of parties in which I cannot concur.

Considered apart from strict law, in the meantime, the position taken up by the respondents is not one which can be regarded with favour. The gates complained of are, I suppose, an inch or 2 inches wide, and therefore it is only for that space at each end of the road that any obstruction is presented. Access to and egress from the road is duly provided, and after access has been obtained there is nothing to hinder the use of the road over its whole breadth. The purpose of the complainer's action is to prevent the road being used in a manner in which no one but himself has right to use it. The right of the respondents is practically left intact, and they are not subjected to any inconvenience in the exercise of their right. I cannot regard the respondents as acting otherwise than in æmulationem.

But I think the complainer is within his legal right in putting up the gates in question. Such a right seems to me to have been recognised in the case of Wood, March 9, 1809, F.C. (which was the case of a servitude road), and in the cases of Rogers, 7S. 287; Kirkpatrick, 19 D. 91; and Suther land, 3 R. 485, which were cases of public footpaths, the right to use which had been acquired by the public, as in the present case, by prescription. The differences in detail between the three cases last cited and the present, do not appear to me to affect the principle on which the cases were decided. I am therefore for recalling the judgment appealed against.

LORD YOUNG was absent.

The Court recalled the interlocutor appealed against, granted warrant to the pursuer to re-erect the gates which had been removed, with similar fastenings, and

interdicted the defenders from interfering with them.

Counsel for Appellant - H. JohnstonMaconochie. Agents-J. & F. Anderson, W.S.

Counsel for Respondents-C. ThomsonJ. Reid. Agents-Macpherson & Mackay, W.S.

Friday, June 1.

SECOND DIVISION. PLAYFAIR'S TRUSTEES v.

PLAYFAIR.

Succession - Heritable or Moveable - Conversion.

A testator whose estate consisted of moveable property to the value of £30,000 and heritage valued at about £56,000 directed his trustees to hold the residue for behoof of the whole children he might leave, share and share alike, to pay or expend for behoof of such children the interest of their shares until they attained twenty-five years of age, or in case of daughters until they were married; and on the children attaining that age, or being married if daughters, "to make payment to them of their respective shares." He declared that the shares should not become vested until the period of payment, and there was a clause in favour of survivors. The truster also gave his trustees a full and unlimited power to sell his heritable property. The deed contained no direction to sell. The trustees never exercised the power to sell.

The testator died leaving nine children. Two sons died before reaching the age of twenty-five. One of his daughters died unmarried and intestate after having attained that age. She was thus entitled to one-seventh of the residue.

Held that the whole of her share was moveable quoad succession, and belonged to her heirs in mobilibus — Advocate-General v. Blackburn's Trustees, November 27, 1847, 10 D. 166, followed.

By mortis causa trust-disposition dated 2nd September 1859, Patrick Playfair conveyed his whole estate, heritable and moveable, to trustees. After making provision for his widow he directed his trustees "to hold and apply the whole residue and remainder of my whole means and estate for behoof of my whole children whom I may leave, equally among them, share and share alike, and to pay or expend for behoof of such children respectively the interest or annual proceeds of their shares, or such part thereof as my trustees shall think necessary for their board, education, and maintenance respectively, accumulating the remainder until they shall respec

first

tively attain the age of twenty-five years complete if sons, and until they shall respectively attain that age or be married whichever of these events shall happen if daughters; and on my children respectively attaining said age of twentyfive years if sons, or attaining that age or being married if daughters, I direct my said trustees to make payment to them of their respective shares, . . Declaring that the shares of such of my children as are sons shall not become vested in them until they shall respectively attain the said age of twenty-five years, and the shares of such of my children as are daughters shall not become vested in them till they attain that age or are married, whichever of these events shall first happen; and I provide that in the event of any child or children predeceasing me, or surviving me and dying before the term of payment and vesting of their shares without leaving lawful issue, then the shares of such deceasing child or children shall accrue to and be divided equally between and among my surviving children and the lawful issue of such as may have died leaving issue equally among them per stirpes: But in the event of the deceasing child or children leaving lawful issue, such issue shall in every such case receive (if more than one equally among them share and share alike) the share or shares which would have fallen to their deceased parent or parents had he, she, or they survived." The deed also contained a clause in the following terms. "And I hereby commit to my trustees herein named or to be nominated as aforesaid, or assumed as after mentioned, full power to enter into possession of my whole means and estate, heritable and moveable, real and personal, hereinbefore conveyed and to sue for, recover, receive, and discharge the same, and the rents, interest, fruits, and profits thereof; to compound, transact, and agree to refer to arbitration any questions or differences which may arise in the course of their management of the said trust-estate; and with power to my trustees to lend the means and estate hereby conveyed, or the proceeds thereof, and the whole funds which shall from time to time form part of my trust-estate, on good and sufficient heritable security, or to invest the same in public funds or other undoubted stock (but not in any railway company or joint-stock or other banking company); to change and vary the said securities and investments from time to time, and to take other securities and investments of the same description as they shall think necessary, and to reduce the rate of interest on such securities to the current rate. And I grant full and unlimited power to my trustees from time to time, as they shall think proper, to sell and dispose of all or any part or parts of my estate and effects, heritable and moveable, real and personal, hereby conveyed, and all other estate and effects, heritable and moveable, which may at any time form part of my trust-estate by public roup or private bargain at such price or prices, and with or without advertisement as they

Mr Playfair died on 21st November 1879. The trust-estate at the time of his death included both moveable and heritable property, the latter consisting of the estate of Ardmillan, and a house in Glasgow. The trustees never exercised the power of selling any portion of the heritable property,

Nine children of Mr Playfair survived their father. Two sons died before reaching the age of twenty-five. Miss Anna Mary Playfair, one of the testator's daughters, died unmarried and intestate on 15th February 1892, after attaining the age of twenty-five on 26th June 1883. She was thus entitled to one-seventh of the residue. At her death the value of the moveable property belonging to the trust-estate was about £30,000, and the heritable property was valued at about £56,000.

Walter Playfair, the immediate younger brother of Miss Anna Mary Playfair, claimed as her heir-at-law the whole of her share of the residue, in so far as it consisted of heritable property, while her six brothers and sisters, being her heirs in mobilibus, contended that conversion had taken place so as to make the whole share moveable in a question of succession, and that it should accordingly be paid over to them.

For the decision of the point a special case was presented to the Court by (1) Mr Playfair's trustees; (2) Walter Playfair, as heir-at-law of Miss Anna Mary Playfair; and (3) the heirs in mobilibus of Miss Anna Mary Playfair.

The questions at law were as follows"(1) Are the first parties, as Mr Playfair's trustees, bound to convey or pay over the share of the trust-estate falling to the late Miss Anna Mary Playfair, so far as it consists of heritable property, to the second party, as the heir-at-law of the said Miss Playfair? or (2) Are the said trustees bound to pay over the whole share of the said Miss Anna Mary Playfair in the said trustestate to the third parties, who are her heirs in mobilibus?"

Argued for the third parties-The terms of the deed showed that the intention of the testator was that a sale of the heritage should take place. There was contained in the deed a power to sell, and it did not matter that there was no express direction to sell in the deed if it contained provisions showing that it was the intention of the testator that the power of sale should be exercised by the trustees before dividing the estate. The case was ruled by that of Advocate-General v. Blackburn's Trustees, November 27, 1847, 10 D. 166. That decision had never been overruled, and the opinion of Lord Fullerton who delivered the leading judgment, had been quoted with approval by Lord-Chancellor Westbury in Buchanan v. Angus, May 15, 1862, 4 Macq. 380. Other authorities - Fother ingham's Trustees v. Paterson, July 2, 1873, 11 Macph. 848; Baird v. Watson, December 8, 1880, 8 R. 233; Brown's Trustee's v. Brown, December 4, 1890, 18 R. 185.

Trs. v. Playfair

1, 1894

Argued for the second party-There was only a power of sale contained in the deed. That did not operate conversion. The exercise of the discretionary power of sale conferred on the trustees was not indispensable to the trust, and not having been exercised there was no conversion

Sheppard's Trustee v. Sheppard, July 2, 1885, 12 R. 1193; Aitken v. Munro, July 6, 1883, 10 R. 1097; Buchanan v. Angus, supra.

At advising

LORD RUTHERFURD CLARK-[After stating the facts]-The question which is before us is whether the share of Miss Anna Mary Playfair, in so far as it consists of the heritable property, passes to her heir-atlaw, or whether the whole share belongs to her heirs in mobilibus-in other words, whether there has been conversion.

The general law is settled by the case of Buchanan v. Angus. The rule is that a direction to sell operates conversion, but that a power to sell does not, unless it is exercised, or unless the exercise of it is "indispensably necessary to the due execution of the trust." In the latter case the power is equivalent to a direction to sell. But however clear the law may be, the cases show that the just application of it is not an easy matter.

We have seen that the whole residue is held for the children in equal shares, and that the share of each child is to be paid at a different time.

Of course I do not attach importance to the fact that the trustees are directed to pay and not to convey. The phrase in itself is not material, as the case of Buchanan shows. But we must be satisfied that the trustees may lawfully convey a share of the heritable estate to a child in part payment of his share, and that the child is bound to receive it. These are convertible propositions. For beneficiaries are bound to submit to what the trustees may do in execution of the powers committed to them.

The second party says that the trustees might execute the trust without a sale, and in this way. When the period arrived for the payment of the first share they could dispone the heritage pro indiviso to themselves and the child in the proportion of six-sevenths and one-seventh. They could convey to the next child one-sixth of their own share, one-fifth of the remainder to the third child, and so on, as the several periods of payment arrived, till the whole was exhausted. There is no warrant in the trust-deed for giving to each child successively a separate part of the heritable estate on a separate title, and it is plain that equality could not be obtained in that way. The only possible mode of equal division is by the creation of successive pro indiviso estates.

It is not likely that the trustees would aet in this manner, which I think could hardly fail to be very detrimental to the beneficiaries. It is sufficient for the second party to show that it would be lawful for them to do so. For in that case they would be acting in conformity with the powers

VOL. XXXI.

conferred on them by the truster, and a sale would not be necessary for the execu tion of the trust.

We must consider the effect of the creation of the several pro indiviso estates. The child in whose favour the first conveyance is granted becomes the joint-proprietor along with the trustees of the whole heritable property, and being jointowners only, the trustees would cease to have the exclusive management of the largest portion of the trust-estate. They could neither sell nor let without the consent of the other joint-owner, while he on his part could when he pleased force a division or a sale. The trust-management would cease and be superseded by the management of the joint-owners. The evil would obviously become greater as each child received his pro indiviso share, and indeed when a second conveyance was granted the trustees would be in a minority in a council of co-owners.

I do not think that the truster contemplated the possibility of such a state of things. He could not have meant that a stranger should be introduced into the management of a large portion of his trustestate, and I do not think that he gave any power to that effect. It may be said that the joint-owner would be one of his own children; but that would be true only so long as the pro indiviso share was not sold. But whether a child or a stranger be owner, the creation of the joint-estate is so entirely subversive of the trust-management which the truster has set up, that I cannot hold it to be within the power of the trustees. No doubt there are cases in which the trustees may convey to all the beneficiaries pro indiviso. But in doing so they are denuded of the trust, and their management

ceases.

Again, it appears to me that a child could not be compelled to take his share as joint owner with the trustees. When he reaches the specified age he is entitled to require the trustees to pay him his share. In my opinion he is entitled to demand that his share shall be separated from the trustestate and put under his own absolute control. It may well be that a conveyance to all the beneficiaries satisfies a direction to pay in equal shares. The trust is brought to an end and they are joint proprietors, not with the trustees, but with one another. Here the direction is to pay one child an equal share, leaving the rest of the estate to be held for the others. I can put no other construction on such a direction than that the share is to be separated from the trust-estate. The word "share" has here I think its natural meaning, and denotes something that is shorn off.

The share of each child is to be paid when he attains twenty-five, or in the case of daughters, when they marry. If all the children had lived there might have been nine "payments" to make, and it is certain that there must be several-each at a different time. I do not see in what manner this direction could be accomplished otherwise than by paying the shares in money, or in other words, the exercise

NO. XLIII.