Servitus Luminum. - Servitude whether implied in a common Tenement within Burgh.
Alexander Robertson and Others, v. George Ranken
Date: 3 March 1784 Case No. No. 37.
The proprietors of the upper stories of a tenement have not an implied servitude on those below, to the effect of preventing the owners of the last from making such alterations on their respective parts of the walls as do not endanger the rest of the building.
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Mr. Robertson and others were proprietors of the upper stories of a tenement, the ground floor of which belonged to Ranken. Purposing to strike out some new doors and windows in that under part of the wall, Ranken applied for the authority of the Dean of Guild's court, which appointed a visitation of tradesmen, in order to ascertain whether the proposed alteration would be attended with any danger to the building. The other proprietors, conceiving that however innocent such an operation might be, and however advantageous to the party, yet not being justified by necessity, it was illegal without their consent, brought the Dean of Guild's sentence under review by advocation, and
Pleaded: Wherever a tenement consists of several stories, belonging to different proprietors, it is implied in the right of each, that without his consent no material alteration that is not necessary, can be lawfully made on the plan of the building in general; because that right comprehends this as well as other circumstances of his property. Thus the various owners come to have a mutual or common interest in all the different portions of the fabric; which, if it be not so extensive as the right of property, is not on that account the less entitled to protection. As having then a common interest in Mr. Ranken's part of the wall in question, the other proprietors claim the power of putting a negative on his intended proceeding, by which so great an innovation would be effected; their title to exert that authority being recognised both in the Roman law and in the law of Scotland; L. 8. L. 27. § 1. L. 40. D. De servitud. præd urban.; Bankton, vol. 1, p. 677. § 11.
Answered: That the common right which has been now supposed, cannot be a right of property, is obvious. If it existed at all, it would be of the nature of a servitude. But the servitude, oneris ferendi, is the only one the law knows in such circumstances L. 24. L. 33. D. De servitud. præd. urb. Stair, B. 2. Tit. 7. § 6.; and therefore the foundation of the opposite party's pretensions is altogether imaginary; for the authorities quoted to support them relate only to the right of common property.
The Lord Ordinary “repelled the reasons of advocation, and remitted the cause in common form.” And having advised a reclaiming petition, with answers,
The Lords “adhered to the interlocutor of the Lord Ordinary.”
Lord Ordinary, Westhall,Act. Rolland.Act. Maconochie.Clerk, Menzies.
Fol.Dic. v.4. p. 280. Fac. Coll. No. l52. p. 237.
