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[Dean of Guild, Dundee.
Held that in conducting building operations where a question of possessory right or disputed boundaries was or might be raised or involved, the Dean of Guild Court at Dundee had a jurisdiction concurrent with that of the Police Commissioners, and that his warrant
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was necessary to enable the proposed operations to be carried on.
This was an appeal from a judgment of the Dean of Guild of Dundee, upon a petition to him at the instance of the Fiscal of Court, concluding for interdict and fine against the respondent Bradford, on the ground that he had taken down and was rebuilding a large tenement within burgh, alleged to be dangerous, without the warrant of the Court. It appeared from the record that the back wall of the respondent's warehouse was beginning to be dangerous, and be resolved to pull it down partially and re-erect it. Accordingly he got plans of his proposed operations and submitted them to the Police Commissioners, who stamped their approval on them before commencing the works. When the new building had been erected to the height of two storeys, the Procurator-Fiscal of the burgh presented a petition to the Court, craving for interdict against the respondent from proceeding further until he should obtain a warrant from the Court, and to fine him for breach of the regulations of the Court, which was served on the respondent. Before judgment was given upon this petition, the respondent presented a petition to the Burgh Court, which stated “that the petitioner ‘is proprietor of a warehouse on the south side of Baltic Street, Dundee, marked (A) on the plan herewith produced, which is bounded on the west by another warehouse belonging to him, on the north by Baltic Street, on the east by a tenement belonging to Thomas Miln, reedmaker, Dundee, and on the south by a tenement belonging to the petitioner, and another tenement belonging to Charles G. M'Nab, shuttlemaker, Dundee. The south wall of the petitioner's said warehouse having been partially swayed outwards, he resolved to take the same down in so far as faulty, and to repair and reconstruct said warehouse, carrying it to the height of three storeys, conform to said plan, which has been submitted to and approved of by the Dundee Police Commissioners. That the petitioner has accomplished the said work to the height of two storeys, but he has heard that the said Charles G. M'Nab has objections to his completing said work;’ and therefore praying for warrant of service, and to appoint the said Thomas Miln and Charles G. M'Nab to lodge answers thereto, if they any had, in the hands of the Clerk of Court within a certain short induciæ, and upon again advising the petition, with or without answers, that it might please their Honours to grant warrant to the petitioner to complete the works referred to in said petition, according to the plan therewith produced, and to find any person appearing to oppose the said application liable in expenses, or to do further or otherwise in the premises as to their Honours should seem meet. The prayer of this petition, after some procedure, in the course of which the respondent M'Nab appeared and lodged answers, was granted.
The Dean of Guild pronounced the following judgment on the petition by the Fiscal:—
“ Dundee. 20 th August 1873.—The Dean of Guild having visited the premises and considered the whole process, both parties having renounced further probation, and dispensed with any hearing, finds that this is a summary application brought by the Procurator-Fiscal of Court, concluding for interdict and fine against the respondent, on the ground that the respondent had taken down and was rebuilding a large tenement within burgh—alleged to be insufficient or dangerous—without the warrant or authority of this Court; finds it admitted by the respondent in his answers No. 3 of process, that the building in question had been recently partially pulled down, and that he was in course of re-erecting it to the height of three storeys without having applied for or obtained any such warrant or authority; finds that since this action was raised the respondent has obtained and produced the extract decree No. 8 of process, bearing to be a warrant to the respondent to build his said tenement, and that it has now been completed; finds in law that the respondent was not entitled to execute the operations complained of without having previously obtained competent judicial authority; therefore repels the whole defences and pleas of the respondent; in the circumstances, and for the reasons in the annexed note, dispenses with any fine against the respondent; finds the respondent liable to the petitioner in the expenses of process, subject to modification, and appoints an account thereof to be lodged, and remits the same when lodged to the Clerk of Court to tax and report; finds the respondent also liable in the dues of extract, to be ascertained at extracting; and decerns.”
“ Note.—The respondent contended that having got the approval or sanction of the Commissioners of Police under the ‘Dundee Police and Improvement Act, 1871,’ to his building operations, it was unnecessary for him also to obtain a warrant or decree of lining from this or any other Court; and that at all events interdict was an inappropriate remedy, the imposition of a fine being sufficient to vindicate the authority of the Court.
As is well established, however, the Dean of Guild Court of this, as well as of other royal burghs, by common law has, and constantly exercises, the sole jurisdiction in superintending the erection, pulling down, altering, and repairing of buildings within burgh; in preventing encroachments upon the property of the public, the streets, and thoroughfares; in causing the removal or repair of ruinous buildings and the like; so that without its warrant no building within burgh can be built, or demolished, or altered, either in whole or in part, and parties acting without such warrant are liable to be summarily ‘ interdicted and fined’ at the instance of the Procurator-Fiscal—4 Bankton, tit. 20; 1 Juridical Styles, 580; 1 Erskine Inst. 4, § 24; Edinburgh and Glasgow Railway v. Dymock, Nov. 27, 1847, 20 S. J. 46.
Now, as jurisdiction is neither given nor taken away by implication (see Erskine Inst. 1, 2, § 7, and Edinburgh and Glasgow Railway v. Dymock, above cited), it follows that the jurisdiction of this Court remains unaffected unless by the above Act its jurisdiction is expressly abolished. Accordingly, by that Act, while by § 75 it is enacted that ‘no new building shall be commenced until the plans and sections have been approved of by the Commissioners,’ § 183 provides that nothing contained in this Act shall prejudice or affect any jurisdiction now competent to the Dean of Guild of the Royal Burgh of Dundee; …. but where no question of possessory right, or disputed boundaries is, or may be raised or involved, …. it shall not be necessary for any proprietor or person to apply for, or to obtain any other approval or warrant than that of the Commissioners before erecting or altering any building within the burgh, or taking or using any part of any street temporarily for or in
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connection with any erection or alteration of any such building. With the exception, therefore, of the necessarily very limited class of cases to which the Act expressly applies, viz., to those exceptional instances where the adjoining heritors cannot possibly have any interest, it appears to the Dean that the sound construction of the Act is, that it superinduces or imposes an additional requisite on proprietors seeking to build or make alterations, thus making it necessary for them now in all other instances to obtain both the approval of the Commissioners for the special and limited purposes of that Act, and also a warrant of lining from this Court,—to which Court still exclusively belongs the determination and vindication of the rights of conterminous heritors and the public, as well as the protection and safety of the lieges, in connection with all building operations within burgh.
To enable the respondent, therefore, to prevail in his contention, that a warrant of lining was unnecessary in this case, it appears to the Dean that it was incumbent on the respondent clearly to show that in his operations ‘no question of possessory right or disputed boundaries is or may be raised or involved,’ and thus to bring himself within the privileged or exempted class where such warrant is rendered unnecessary by the above recited clause. But, however this may be, and upon whomsoever incumbent, it was appparent at the visitation, as well as from the statements and admissions on record, that the nature and situation of the respondent's building with reference to the conterminous heritors rendered it peculiarly and eminently a case in which a question of disputed boundaries might be raised or involved; and by the extract decree, No. 8 of process, produced by the respondent himself, it appears that not only might such a question be fairly raised, but that in fact it had actually been raised and discussed.
As the respondent appears to have acted more from misapprehension than from any intentional contempt of Court, it has not been deemed imperative to inflict a fine, and as the petitioner's allegations of danger were, in the view which the Dean has taken of the case, unnecessary, and were not substantiated, it seems a case in which only modified expenses should be awarded.”
The respondent (Bradford) appealed against this judgment.
At advising—
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I am therefore of opinion that the respondent should have obtained the decree and warrant of the Dean of Guild before proceeding with his operations—that not having done so, the Procurator-Fiscal of that Court was entitled to present the petition now complained of against him—and that there are no sufficient grounds for sustaining his appeal.
The appeal was therefore dismissed, with expenses.
Counsel for Appellant (Bradford)— Watson and Keir. Agents— Henry Buchan, S.S.C., and J. D. Grant, Dundee.
Counsel for Respondent (More)—Solicitor-General and M'Laren. Agents— David Milne, S.S.C., and More, Dundee.