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Cite as: [1834] CA 13_27b

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SCOTTISH_Shaw_Court_of_Session

Page: 27↓

Donaldson

v.

Pattison No. 8.

Court of Session

1st Division

Nov. 14 1834

Ld. Corehouse, Lord President, Lord Gillies, Lord Balgray, Lord Mackenzie

James Donaldson, Advocator.— D. F. Hope— H. J. Robertson. Matthew Moncreiff Pattison and Others, Respondents.— Rutherford— Monteith.

Subject_Jurisdiction—Dean of Guild—Nuisance.—

A complaint against the proprietor of a storehouse, for loading and unloading carts close to the front wall, and raising heavy bales to the upper flats of the storehouse by cranes, so as to occasion a dangerous obstruction to the public street, held Incompetent before the Dean of Guild, in respect that it did not allege any fault in the structure of the building, and did not pray for any alteration of its structure.

Matthew Moncreiff Pattison and Others presented a petition to the Dean of Guild of Glasgow, setting forth that they were “proprietors of certain buildings situated between Mitchell Street and Buchanan Street, &c.: That, immediately adjoining the property of the petitioners to the north, in Mitchell Street, there is a large building occupied as a cotton store, belonging to James Donaldson, cotton broker in Glasgow: That the wall of the said building fronting Mitchell Street is built on the extreme western boundary of the said James Donaldson's property, and immediately adjoins the public street: That the said James Donaldson, or James Donaldson & Co., the tenants or occupiers of the said cotton store, are in the constant practice of loading and unloading their carts on the public street, and of taking their carts close in to the front wall of the said cotton store, and raising heavy bales of cotton and other goods, by means of cranes and pullies, or other tackling, into the upper flats of the said cotton store, and again lowering them into the carts in the same way: That in consequence of this the access to the property of the petitioners, along the pavement or footway, on the east side of Mitchell Street, is not only interrupted, but the lives of the passengers endangered, all to the great injury of the petitioners, whose property, as a public market and tavern, is thus much deteriorated.”

The petition prayed the Dean of Guild to “interdict, prohibit, and discharge the respondent from interrupting the passage along the pavement or footway of Mitchell Street aforesaid by his carts, and from raising his cotton bales, and other goods, from his carts into the upper flats of the said building, and again lowering them down, as aforesaid,” &c.

Donaldson objected in limine to the competency of the action before the Dean of Guild. After making up a record, and leading a proof, the following interlocutor was pronounced;—“Find, that the defender has not established the existence of any general practice or usage in the city of Glasgow and suburbs, such as to justify the construction and use of machinery in the loading and unloading of carts at his store, and the mode of loading or unloading these carts upon the public street complained of by the pursuers; find that Mitchell Street is now one of the public streets of this town; and find the defender is not entitled, for the accommodation of persons resorting to his store, to occupy the said street, and foot pavement thereof, opposite to his property, by the successive position thereon, for at least several hours daily, of carts receiving or delivering goods at his said store, to the obstruction of the passage along the said street, and of the access thereby to the premises of the pursuers, and other adjacent proprietors and possessors; nor to suspend, by tackling over the said street, heavy bales or packages of goods, in the process of loading or unloading the said carts, to the danger of the persons, and lives of the lieges: Therefore, grant interdict as craved in the original petition, and find the pursuers entitled to expenses,” &c.

The defender brought an advocation, and pleaded that the jurisdiction of the Dean of Guild properly applied to the erection, or to the regulation of buildings within burgh; that there was no complaint made against the construction of his building as being illegal, or injurious to the conterminous proprietors, or hazardous to the public; and that though it was alleged he had made an improper use of the street or pavement, in his mode of loading his carts, this was a matter which fell within the jurisdiction of the Sheriff or Magistrates.

Pattison and Others answered, that the Dean of Guild had jurisdiction not only over the architecture of a building, but also over the use to which that building was employed, if it amounted to a nuisance, as, for example, where the upper room of a house was occupied as a school for fencing. ¹ It was competent, therefore, to complain of the illegal use which was made of this building, which was such as to infer danger to passengers in the street.

_________________ Footnote _________________

¹ Fleming, Feb. 24, 1750 (13159); Proprietors of Carruber's Close, Feb. 26, 1762 (13175); Buchanan, Nov. 15, 1774 (13178); Thomson, Nov. 21, 1776 (13182); Vary, July 2, 1805 (Dict. v. Pub. Police, App., p. 4); Charity, &c., July 5, 1808 (Dict. v. Pub, Police, App., p. 6.)

The Lord Ordinary found “that the advocator is the proprietor and occupier of a cotton store in Mitchell Street, in Glasgow, adjoining to the property of the respondents: Found it proved and admitted, that the goods are raised to, and lowered from the said store, by pullies or other machinery suspending them, while so raised or lowered, in front of the building, and over the footway of the said street: Found it proved, that these operations occasion the obstruction of the footway during several hours of the day, and are also attended with danger: Found it not proved that there is any general or common practice in Glasgow of using such machinery in the public streets: Found it not proved that there is any peculiarity in the situation or circumstances of Mitchell Street, which distinguishes it from the other public streets of the city: Found, that in these circumstances, the operations of the advocator afford a legal ground of complaint to the respondents, the adjoining proprietors, and do, from their nature, as proved, fall within the cognizance of the Dean of Guild: Therefore, repelled the reasons of advocation; remitted the case simpliciter to the Dean of Guild, and decerned and found the respondents entitled to expenses.”

The advocator reclaimed.

Lord President.—I think it was not competent for the Dean of Guild to entertain a petition of the nature which was preferred against the advocator. An application to that Court must have reference to the erection or construction of some building, or to some alteration which is made on a house or building. A mere obstruction of the street or pavement, even though attended with danger, is not a matter falling within the jurisdiction of the Bean of Guild. A charge against persons for furious driving on the public streets of the town would certainly not be competent before him, and I do not conceive that the complaint, in this instance, is distinguishable from such a charge, by any principle sufficient to let in the jurisdiction.

Lord Gillies.—I am of the same opinion. It is not enough to say that this mode of loading and unloading carts created a nuisance in the public street, for, although some questions of nuisance are competent before the Dean of Guild, it is only when the subject-matter of the nuisance is such as falls within his peculiar province. If the wall of a house be impending over the street, and endangering the lives of passengers, it is unquestionably a nuisance, and the Dean of Guild has jurisdiction to remove it. But this is not merely because it is a nuisance, but because it is an architectural nuisance.

Lord Balgray considered that there were several decided cases which extended the jurisdiction of the Dean of Guild as far as to make it reach a case like that under advocation.

Lord Mackenzie.—I at first felt considerable doubt, whether the jurisdiction of the Dean of Guild was incompetent; but, after looking into all the cases, I am satisfied that it is. And as it is extremely important, in a question of jurisdiction, to explain the grounds of the judgment of this Court, I shall shortly state mine. The jurisdiction of the Dean of Guild, so far as it extends, is of an exclusive character. But it is also of limited extent; and, in order to have made this complaint competent before him, I think it would have been necessary to allege some fault in the building belonging to the advocator: The objection to the competency is no doubt narrow, but still there is completely wanting in the complaint any allegation that the structure of the building is illegal, and there is no prayer to have its structure altered or modified. Had the complaint been directed against the building and its cranes or tackle, and had there been a prayer for remodelling these, the jurisdiction would have been clear. And it would seem likely that there were facts in the case to have warranted a complaint to the Dean of Guild, had it been regularly framed; for the mode in which the storehouse was built was such as naturally, if not indeed necessarily, to lead to the nuisance complained of. And, therefore, a complaint might have been made to the Dean of Guild for having that part of the building taken down, which produced a dangerous nuisance, or at least for having its use regulated in such manner as the safety of the public required; But still it was essential to state, that the fault was in the building, for, without this, there was nothing to exclude the jurisdiction of the sheriff or the magistrates. And such a statement is wholly omitted. It is merely said that the storehouse is built on the extreme boundary of the advocator's property, and immediately adjoins the street. That does not amount to any allegation of illegality in the structure of the building. Then it is said that the advocators are in the practice “of loading and unloading their carts on the public streets, and of taking their carts close in to the front wall of the said cotton store, and raising heavy bales of cotton and other goods, by means of cranes and pullies, or other tackling, into the upper fiats of the said cotton store, and again lowering them into the carts in the same way.” And this is said to occasion a dangerous interruption on the pavement, by which the complainers have access to their property. That is the sole matter of the complaint, and it might have been equally stated against any building which had a window or other opening to the street at all. The subject-matter of the complaint is, therefore, not of the kind appropriated to the Dean of Guild, and the prayer has no reference to the structure or condition of the building. It is merely to interdict the advocator “from interrupting the passage along the pavement or footway by his carts; and from raising his cotton bales and other goods from his carts into the upper flats of said building, and again lowering them down as aforesaid.” This is just asking an interdict against an interruption of the footway. I think the Dean of Guild could not competently entertain such a complaint. It was indeed pleaded, that not merely the structure or architecture of a building, but the use of a building, within burgh, if illegal, was a fit subject for the jurisdiction of the Dean of Guild. But I think this plea admits of two answers. In the first place, I cannot see any sufficient authority for holding that this is the law; and the only precedent which seems to me to go so far, is that of Fleming, where the use of an upper flat as a fencing-room was restrained by the Dean of Guild as a nuisance. But it does not appear that the point of jurisdiction was ever raised in that case. In all the other cases, the complaint not merely stated the illegal use of a building, but also alleged some species of construction of a building which was so. I would apply that observation even to the case where the erection of a sign-board upon a house was complained of, before the Dean of Guild, as well as to the other cases referred to in the pleadings. This alone,, therefore, would suffice to dispose of the plea which has been raised as to the illegal use of this building. But, in the second place, I do not think the complaint is so framed as to make room for such a plea, even had it been well-founded. The statement is not, that the use made of the building is such as is illegal, but that the use made of the street is illegal. I concur, therefore, with the majority of your Lordships, and think that this complaint must be advocated and dismissed.

Dean of Faculty, for advocator, moved for expenses.

Lord President.—I do not think this a case in which the respondents should be subjected in expenses. The point raised was not free of difficulty, and the advocator appears to have occasioned a serious obstruction to the public way.

The Court advocated the process, and dismissed the complaint, but found no expenses due to the advocator.

Solicitors: Pearson, Wilkie, and Robertson, W.S.—W. A. G. and R. Ellis, W.S.—Agents.

SS 13 SS 27 1834