In a house of several storeys, belonging to different proprietors, having their entry by a common passage, no alteration can be made on it without the consent of the whole.
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William Dalrymple, and others, were proprietors of the two upper storeys of a house in Prince's Street, Edinburgh, of which the sunk storey, and that above it, belonged to John Anderson. The two upper storeys entered by a stair, near the inner extremity of a common passage; at the same extremity of which, too, was the street entry to Anderson's property.
Anderson having converted a front room of his house into a shop, insisted to strike out a door to it from the passage, in a niche, or recess, which received the door, then placed on the outer extremity of it; and he applied to the Dean of Guild for liberty to do so.
This was objected to by Dalrymple, and others, and refused by the Dean of Guild.
In an advocation, reports of tradesmen were produced by both parties. These were contradictory. But that of the builder of the house bore, that, foreseeing that it might be wished to convert the front room into a shop, he had placed a dormant of wood in the wall, at the very place where Anderson meant to make the door; that the bricks below it might be removed, without any danger to the wall, and the outer door of the passage be otherwise commodiously placed.
The bill was refused.
But another having been presented and passed, the Lord Ordinary remitted to the Dean of Guild to alter the former interlocutor, and allow Anderson's operations to proceed, with special instructions as to their execution, so as to be most commodious for both parties.
In a petition by Dalrymple, and others, it was contended, That the proposed alteration was contrary to the plan, on the faith of which they had purchased, and that it could not be carried into execution, without considerable danger and inconvenience to their properties, particularly without altering the situation of the outer door on the passage, so that they were entitled to prevent it.
Anderson, on the other hand, maintained, That he lay under no prohibition, express or implied, against using the room as a shop, and that, while his property would be much improved, by having a door separated from, and nearer to the street than that of his house, no injury of any sort could hence arise to the objectors, who, therefore, had no right to complain; 3d March 1784, Robertson against Ranken, voce Servitude; 1791, Murray.*
The Court examined persons of skill in their own presence, and came to be satisfied, that the petitioners would not be hurt by the alterations objected to by them. But this notwithstanding, the general opinion was, that, as the petitioners had not merely a servitude oneris ferendi on the wall from which the door was to be opened, but a right of common property in the passage, no alteration whatever could be made on it without their consent.
The Lords “Altered the interlocutor reclaimed from, and remitted the cause simpliciter to the Dean of Guild, to refuse the original petition for John Anderson; but found no expenses due to either party.”
A reclaiming petition was refused, (9th July,) without answers.
* Not reported.—see Appendix.
Lord Ordinary, Meadowbank.For Anderson, Hope, Monypenny.Alt. Burnett.Clerk, Gordon.
Fac. Col. No 129. p. 296.
