In a house of several storeys, belonging to different persons, the proprietor of the upper storey and garrets cannot raise the walls and alter the shape of the roof, so as to convert the garrets into an attic storey, without consent of the inferior proprietors.
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Of a house in the city of Glasgow, consisting of three floors and garrets above the shops, Clementina Sharp, proprietress of the upper storey and garrets, (under obligation to repair the roof), proposed, by raising the walls and altering the shape of the roof, to convert the garrets into an attic storey; and applied to the Dean of Guild for liberty to make the intended alterations. The Dean of Guild, on a report of tradesmen, that the walls would not be injured, and her giving caution de damno infecto, gave her liberty to proceed.
Mathew Robertson, one of the inferior proprietors, complained by three bills of advocation, which were at first refused, but were passed, on a petition to the Court.
The averments of parties as to the prejudice or benefit which would result to the inferior proprietors from the proposed operations, by increase of pressure on the walls or otherwise, being directly opposite to each other, the Lord Ordinary had allowed a proof before answer.
In a petition for Robertson, and answers for Mrs Sharp, the relevancy of this proof was argued upon grounds not materially different from those in the reported cases, 20th June 1799, Anderson against Dalrymple, No. 41. p. 12831.; and 16th November 1799, Reid against Nicol, No. 1. supra.
The Court, upon the principle there adopted, altered the interlocutor, and gave judgment against Mrs Sharp.
Lord Ordinary, Stonefield.For Sharp, Greenshields.Alt. T. W. Baird.Clerk, Sinclair.
Fac. Coll. No. 164. p. 368.
