Right to graze cow — Dispositions of several crofts disponed in scheme of reorganisation of single estate — Disponer a pro indiviso proprietor — Subpurchaser of croft and grazing land disposing of croft and share of grazing land to appellant — Whether servitude right of grazing went with the land — Whether right effectively constituted — Appeal dismissed against decision that no such servitude existed
The respondents were the proprietors of an area of land extending 99 acres and known as Cow Park at Fearnan on Loch Tay. The appellant owned a croft contiguous thereto. Prior to 1922, the Marquess of Breadalbane was the infeft proprietor of Cow Park and some 25 crofts or plots of land adjacent thereto. The marquess agreed to sell them to Henry Kennaway (“K”) and to grant conveyances with the consent of K to the subpurchasers from K on any of the plots on agreed terms. Thereafter, by a number of dispositions in 1922, the marchioness, as commissioner for the marquess, with the consent of K, disposed parts of the land in question together with a pro indiviso share in a right of grazing on Cow Park. The appellant in the present proceedings derived title from a disposition to Alexander Campbell of three separate crofts. That disposition had stated, inter alia, that it was “Together with the following rights and privileges… Together with the right in favour of the said disponee… as proprietors of the crofts… of grazing three cows on the said common grazing…”. In 1979, a number of the pro indiviso proprietors of Cow Park raised an action of division and sale, when the bid of the respondents was preferred. The disposition by the appellant to the respondents of his 1/25th share of Cow Park was executed. He averred that by that disposition “a servitude right to graze one cow was constituted over the said cow pasture as servient tenement in favour of each of the crofts thereby disponed as dominant tenements…”. He further averred that he “as the present proprietor of one of said crofts was and remains entitled to exercise the said servitude right”. The respondents sought a declaration, inter alia, that the appellant had no right of grazing in Cow Park and consequential interdict. The Lord Ordinary (Lord Davidson) decided that the appellant had the right to graze which he claimed: see 1988 SLT 817. The Court of Session (Second Division) reversed that decision 1990 SLT 704, concluding that as at the date of recording Alexander Campbell’s disposition, the marquess, being only a pro indiviso proprietor of Cow Park was not in a position to create a servitude over it: see Grant v Heriot’s Trust (1906) 8 F 647. The appellant appealed to the House of Lords.
Held The appeal was dismissed.
1. The language of the grazing clause in the context in which it appeared was not apt to create a servitude right of grazing over Cow Park in the appellant’s predecessor in title, Alexander Campbell.
2. First, the grazing right bore to be a right in common “with the whole other parties interested in said Common Grazing”. Had it been intended to create servitude rights of grazing over Cow Park in favour of the proprietors for the time being of all the other crofts or pieces of ground, one would have expected that they, rather than those parties interested in Cow Park, would have been referred to. Second, the grazing right bore to be subject to “any regulations or conditions prescribed or to be prescribed”. If those words were intended to refer to judicial regulation, they would have been unnecessary because a servitude right of pasturage, which was enjoyed by the proprietors of a plurality of dominant tenements, was always capable of regulation inter se by action. If, on the other hand, the words were intended to refer to regulations which could be imposed on the owner of the right without recourse to action and without his consent, they would be wholly inconsistent with the existence of the servitude. Third, the disposition of the pro indiviso share of Cow Park contained no reference to any other disposition of the remaining shares. Fourth, although the draftsman of the disposition used the word “servitude” on a number of occasions, he did not do so in the context of the right of grazing over Cow Park. It was particularly significant that although three separate servitude rights were created over Cow Park, there should have been no reference to any such rights of grazing. The grazing right was included in that part of the disposition dealing with rights and privileges and no reference to grazing appeared in the part dealing with burdens and servitudes. Finally, although the words “and his foresaids as proprietors of the crofts or pieces of land above disponed” in the grazing clause might have suggested that the right was intended to run with the crofts, the fact that very similar words occurred in the disposition of the pro indiviso shares of Cow Park and that right was to be held in common with the other parties interested in Cow Park rather than in the crofts somewhat blunted what might otherwise have been the effect of the words had they stood alone.
James Campbell and David Stevenson (instructed by Bates Wells & Braithwaite) appeared for the respondent proprietors; and Christopher Haddow QC and Donald Rae (instructed by Dyson Bell Martin & Co) appeared for the appellant.
