Scottish Court of Session Decisions

This was an appeal from the Dean of Guild Court, in the following circumstances:—

Messrs Banks & Co., printers and engravers, were proprietors of the tenement No. 10 North St David Street, Edinburgh (the house next the corner house of St David Street and Queen Street) with the back ground and certain buildings erected thereon, and Mr Walker was proprietor of the tenement No. 2 Queen Street, with the back ground. These two properties met in the back ground, and both Messrs Banks and Mr Walker held upon a singular title. Formerly these houses belonged respectively to Messrs William & George Veitch, and to Mr Gordon, and in 1777 these parties entered into a contract. This contract proceeded on the narrative that the said William and George Veitch were willing to give to the said Alexander Gordon a right to part of their ground or area behind their house, upon the terms and conditions therein mentioned; and, inter alia, on the condition— First, That the Veitchs and their successors, proprietors of the said house in St David Street, “shall have a servitude or jus prospectus 17 feet along their back wall, from the northmost point, over the said area to be given up by them to the said Alexander Gordon, and also over his own area to the extent of 10 feet further, extending in whole to 16 feet from their back wall, within which space the said Alexander Gordon should not be at liberty to erect any building or other incumbrance to interrupt the light to the back windows of the house built by the said William and George Veitch … Fourthly, That the said William and George Veitch do not mean to comprehend under the ground to be given by them to the said Alexander Gordon as aforesaid that piece of ground or area lying behind their house, extending about 5 feet along the wall adjoining to the southmost end of the said area which the said Alexander Gordon is to have right to as aforesaid, which piece of ground they reserve to themselves, and engage within four months from this date (30th January 1777) to erect a small building or cellar thereon, the whole breadth of the said piece of ground, in which they are to be at liberty to put one window looking into the said Alexander Gordon's back ground, but the said small building or cellar is only to be one storey in height. Fifthly, That the said William and George Veitch shall have right to the stones in the wall betwixt the said Alexander Gordon's area and that area which they are now to give him, which they are to make use of in erecting the said small building or cellar upon the piece of ground reserved.”

By this contract, upon the subsumption that Mr Gordon was willing to accept of the back ground from William and George Veitch upon the said terms and conditions, “the said William and George Veitch on their part, in implement of the said agreement, disponed and conveyed to the said Alexander Gordon the said northmost end of the said back ground or area behind their said house, consisting of about 17 feet in length and 6 feet in breadth;” and they also obliged themselves and their successors “within the said period of four months, to erect the said small building or cellar, not above one storey in height, upon the southmost part of the said area, the whole breadth thereof; declaring always, as it is hereby expressly provided and declared, that these presents are granted by the said William and George Veitch under the

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burden of the reservations, provisions, and conditions before-mentioned, and no otherways.”

For these causes, and on the other part, Mr Gordon not only accepted the right to the back ground, under the reservations and upon the terms and conditions before expressed, but also, in implement of his part of the said agreement, he thereby disponed and conveyed to the said William and George Veitch, and their heirs and disponees, “the said servitude or jus prospectus for 17 feet along their back wall from the northmost part, and 16 feet backwards over the said Alexander Gordon's back ground or area.” And he likewise disponed to them, “all right he has to the stones in the wall betwixt the area formerly belonging to him and that now conveyed to him by the said William and George Veitch, but which stones they are to make use of in erecting the said small building or cellar before mentioned.”

In terms of this agreement the Messrs Veitch erected a small building (about 8 feet by 5 feet), at the back of their house.

Messrs Banks & Company being desirous to convert the small building or cellar into a boiler house for the purposes of their business, found it necessary in order to carry out their scheme to build a chimney and to carry it up the back wall of their house, which was four stories in height, they therefore brought a petition before the Dean of Guild to obtain permission to do so.

The petition was opposed by Mr Gordon.

The petitioners pleaded—“(1) The petitioners are entitled to warrant as craved, in respect that the proposed operations are all within the property of the petitioners, and that the same are a lawful exercise of their right of property. (2) The respondent, Mr Walker, has neither title nor interest to oppose the erection of the smoke-flue, in respect that his titles give him no right to restrain the petitioners from making such an erection, and that the said erection does not encroach upon any right of the respondent, and is not prejudicial to his interest; and he should be found liable in expenses to the petitioners.”

The respondent pleaded—“(1) What is craved by the petitioners being in contravention of the conditions prescribed in their title, and in particular in the contract before specified, the prayer of their petition should be refused, with expenses. (2) The proposed vent or smoke-flue being an encroachment upon the respondent's rights in the premises, and its erection being prejudicial to his interests, warrant to erect the same should be refused, and the respondent found entitled to expenses.”

The Dean of Guild pronounced the following interlocutor:—

“ Edinburgh, 11 th December 1873.—The Dean of Guild having considered the closed record and productions, and heard parties' procurators, Finds that the contract between Alexander Gordon and William and George Veitch, dated 30th January 1777, does not purport to be the constitution of a servitude altius non tollendi over the piece of ground on which the petitioners’ flue or chimney stalk is intended to be erected: Finds it not proved that such a servitude was constituted; Therefore repels the respondent's pleas in law, and in respect the petitioner's plansappear to be otherwise unobjectionable, grants warrant in terms of the prayer of the petition and relative plans, and decerns: Finds the respondent liable to the petitioners in the expenses of process from the date of his appearance; and remits to the clerk of Court qua Auditor, to tax the account thereof when lodged, and to report.

Note—Referring to the condescendence and answers for an explanation of the local situation of the petitioners’ and respondent's subjects, and the state of their respective titles, it may be stated that in the argument on the closed record the respondent's objections were confined to the subject of the petitioners’ proposal to erect a chimney-stalk or flue upon the main wall at the back of his tenement in St David Street. The objection was founded on the terms of a contract between Alexander Gordon and William and George Veitch, dated 30th January 1777, whereby Messrs Veitch, the predecessors in title of the petitioners, disponed a part of the area behind their houses in St David Street to Mr Gordon, the predecessor in title of the respondent, and at the same time came under an obligation with reference to the remainder of the said area, which they reserved to themselves ‘to erect a small building or cellar thereon the whole breadth of the said piece of ground, in which they are to be at liberty to put one window looking into the said Alexander Gordon's ground, but the said small building or cellar is only to be one storey in height.’ The words quoted occur in the narrative of the deed. The words used in the obligatory clause are—'And they also oblige themselves and their foresaid, within the said period of four months, to erect the said small building or cellar, not above one storey in height, upon the said southmost part of the said area the whole breadth thereof.’ The parties are at issue as to whether the words in the first quoted passage express a continuing obligation not to build anything exceeding one storey in height; or whether they express merely a positive obligation to occupy the piece of ground by a cellar or other building of the specified description. In the view which the Court is disposed to take of the legal effect of this clause, this is a question which could only have arisen between the parties to the agreement, or their heirs. There may be cases where an obligation to erect a building of a specified description would, by implication, bind the granter and his heirs not to remove that building, or to replace it by one of greater size or altitude, but the question here is with a singular successor of the obligant, and the argument is that there is not only an implied obligation but a servitude against building higher. No authority has been cited to the effect that a servitude may be constituted by implication: that an obligation to build to a limited extent should be converted by a legal construction into a perpetual prohibition against building to a greater extent. The Court is the less disposed to entertain such a construction of the clause because it is apparent from the other clauses of the deed of 1777 that the parties were quite aware of the difference between a personal obligation and a servitude, and knew to make use of the latter word when their intention was to constitute a perpetual restriction on the use of property. See the clause of servitude at the top of page 7 of the agreement.”

The respondent appealed.

Argued for him—By the contract of 1777 a servitude non altius tollendi was established over the

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small building at the back of the petitioners’ house, and that servitude was violated if any portion of that building was raised higher than one storey. Again, the contract was that the building was to be a cellar, and the petitioners had no right to turn it to a totally different use. At all events, they had no right to turn it to a use which necessitated a violation of the servitude.

Argued for the petitioners—Even if there was a servitude altius non tollendi over this small building, the erection of a chimney was not a violation thereof, which merely prevented the whole building being raised to a greater height than one storey.

At advising—