Macdonald v. Inverness Burgh [1917] ScotLR 197 (13 December 1917)

Macdonald v. Inverness Burgh [1917] ScotLR 197 (13 December 1917)

The majority held that the conditions attached to the servitude were only binding on the defenders so long as they exercised or retained the servitude. Upon renunciation and restoration of the subjects, the conditions ceased to be prestable by the pursuer. The terms of the deed did not warrant the pursuer's demand for continued supply or maintenance after abandonment of the servitude.

Citation
[1917] ScotLR 197
Parties
Pursuer: James Huntly Macdonald of Torbreck; Defenders: Provost, Magistrates, and Town Council of Inverness
Jurisdiction
Scotland
Judgment Date
13 December 1917
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Action dismissed as irrelevant; defenders entitled to renounce servitude and conditions cease upon renunciation (majority). Dissent by Lord Johnston.
Legal Topics
Servitude and Easements, Renunciation of Rights, Conditions Attached to Servitude, Transmission of Real Burdens, Water Supply Agreements
Property Law Servitude Law Contract Law Water Law Servitude and Easements Renunciation of Rights Conditions Attached to Servitude Transmission of Real Burdens +1 more

Case Brief

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Parties

James Huntly Macdonald of Torbreck

Pursuer

Provost, Magistrates, and Town Council of Inverness

Defenders

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the conditions attached to a servitude right to take water continue to bind the grantee after renunciation of the servitude.
  2. 2 Whether such conditions are substantive and independent obligations or merely qualify the exercise of the servitude.
  3. 3 Whether the pursuer, as a singular successor, has title to enforce the conditions.

Ratio Decidendi

The majority held that the conditions attached to the servitude were only binding on the defenders so long as they exercised or retained the servitude. Upon renunciation and restoration of the subjects, the conditions ceased to be prestable by the pursuer. The terms of the deed did not warrant the pursuer's demand for continued supply or maintenance after abandonment of the servitude.

Court Disposition

Action dismissed as irrelevant; defenders entitled to renounce servitude and conditions cease upon renunciation (majority). Dissent by Lord Johnston.

Orders

  • Case continued to allow parties to adjust rights regarding restoration, but majority view is that defenders are entitled to be assoilzied upon renunciation.