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Cite as: [1876] SLR 13_559, [1876] ScotLR 13_559

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Wednesday, June 21. 1876.

[ Lord Rutherfurd Clark.

13 SLR 559

Naismith

v.

Cairnduff.

Subject_1Superior and Vassal
Subject_2Feu-Contract
Subject_3Condition.

Cottage.

Facts:

In the feu-contract of a portion of ground it was declared that the buildings to be erected on the feu “shall consist of cottages with suitable offices, which cottages shall not exceed four in number, and shall be built on the sites shewn on the plan” which was endorsed upon the deed. The superior further served the minerals. The vassal proceeded to put up a building to which the superior objected—firstly, that it was not a cottage; and secondly, that it was erected on a site different from any of those shewn upon the plan.— Held, after a proof, that as the building consisted of two square stones it was not a cottage, and the feu-contract had therefore been violated.

A cottage is a single-storey building, but that does not exclude the addition of apartments in the roof with Windows.

Opinion ( per the Lord President, and Lord Rutherfurd Clark, Ordinary) that under the circumstances, as the dimensions of the building areas were not inserted in the contract, it was not intended to restrict the vassal absolutely within the area specified upon the plan,
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and that it was not incorporated to that effect with the feu-contract.

Headnote:

By feu-contract, dated June 10, 1868, the pursuer James Naismith, portioner in Bothwell, sold to the defender James Wilson Cairnduff a plot of ground containing 1 acre 1 rood and 30 poles, part of the lands of South Whitelaw Park, lying in the parish of Bothwell. The consideration was a yearly feu-duty of £14, 7s. 6d. and there was the following declaration in the deed:— “Declaring that the said James Wilson Cairnduff and his foresaids shall be bound and obliged within two years to erect and finish in the plot or area of ground hereby disponed one cottage, to be occupied as a dwelling-house, yielding a yearly rent to the amount, of double the feu-duty after stipulated at least, and to maintain and uphold the said cottage, and to rebuild the same, and to maintain the same when so rebuilt, so that it shall yield the like rent in all time coming: And declaring that the buildings to be erected on the foresaid plot or area of ground shall consist of cottages with suitable offices, which cottages shall not exceed four in number, and shall be built on the sites shewn on the said plan or sketch, and shall front the north, and shall each of them be, in point of size and accommodation as well as architectural character, at least equal to either of the two cottages which have been already erected on the ground to the southward thereof, lately feued to the said William Henderson; and the outer walls of the said cottages, and also of any outhouses, coach-houses, stables, and offices, to be erected on the ground hereby disponed, shall be built of stone and lime; and the said cottages and other buildings shall be covered with slates, and shall be erected at the distance of not less than 15 feet at all points from the west side of the said Parish Road; and the front and gable walls of the said cottages shall be of polished ashlar or neatly-dressed square rubble work; and the said James Wilson Cairnduff and his foresaids shall not be at liberty at any time to erect any building upon the said plot or area of ground other than the said four cottages to be occupied as dwelling-houses, with suitable outbuildings or office-houses to be used and occupied in connection therewith.”

The minerals were reserved to the pursuer in the following terms:—“Reserving always to the said James Naismith and his heirs and successors the whole coal, ironstone, shale, metals, and minerals within the said lands and others before disponed, with full power and liberty to him and his foresaids, or others authorised by them, to search for, work, win, and carry away the same, provided this be done without breaking or entering upon the surface of the said lands, and subject always to the condition that he and his foresaids, or their tacksman of the said coal, ironstone, shale, metals, and minerals, shall be bound to pay to the said James Wilson Cairnduff and his foresaids all damage that may be done to the foresaid plot or area of ground and buildings erected or to be erected thereon by searching for, working, winning, and away-carrying of the said coal, ironstone, shale, metals, and minerals.” The pursuer brought this action of declarator, interdict, and removing, on the ground, as he averred, that the defender “is in course of erecting on his feu a building which is not a cottage, but a double villa of two square stories in height, and he is erecting the same on the site marked A B C D on the plan or sketch herewith produced, being a different site from any of those shewn on the plan or sketch which was endorsed on the said feu-contract and subscribed as relative thereto.” He further averred that the erection of such buildings seriously affected his rights of property, as they were more likely to be injuriously affected by mining operations than “cottages.” He explained that the cottages referred to in the feu-contract as having been erected on the ground feued by Henderson were single cottages of one square storey in height with attics.

The defender admitted that the building he had erected consisted of two stories, containing two separate dwellings, and averred that it was placed on the site indicated by the plan referred to. Henderson's building was a “double villa of two stories in height at the back,” and he had extended in the several cases in which he had built beyond the limits of the sites marked off on the plan endorsed on his feu-contract.

The pursuer pleaded, inter alia—“(1) The pursuer, in virtue of the titles libelled, is superior of the subjects in question, and is in virtue thereof, and of the feu-contract between him and the defender libelled, entitled to decree of declarator as concluded for. (2) The dwelling-house which the defender is in course of erecting not being a cottage, and being in various other respects a violation of the contract of parties as embodied in the feu-contract and relative sketch or plan, the pursuer is entitled to interdict, and to have the same removed and taken down, as and to the extent concluded for.”

Both parties were allowed a proof of their averments. It was proved that the buildings erected by the defender had two square stories. Mr Peddie, architect, described it as a double villa. He further deponed—“It is perhaps not possible to define the distinction between a cottage and a double villa: but a cottage is a very small residence, and, when applied to a residence for people of the middle class, it is in my experience applied to a house of one storey; or, if there is a second storey, that storey is almost wholly in the roof. When it goes beyond that it ceases to be called a cottage. Cross.—You can have a house which would fall within the proper appellation of a cottage although it extended to a full storey and another storey that was only partially upon the roof. It is quite possible to spend upon a cottage in ornamentation a great deal more than would be necessary to build a double villa.” The buildings erected by Henderson were proved to have only one story and attics. Mining engineers were brought to give evidence as to the existence of minerals in the district and the liability to damage where there are buildings of weight upon the surface.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 12 th January 1876.—The Lord Ordinary having considered the cause, Finds that the defender has violated the conditions of the feu-contract libelled by erecting a house which is not a cottage: to that extent Finds, declares, and decerns in terms of the conclusions for declarator and interdict; decerns and ordains the defender to take down the house erected or in the course of being erected by him in so far as
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it exceeds in height one square storey and attics, and that at the sight of Mr John Baird, architect in Glasgow: Finds the pursuer entitled to expenses, of which allows an account to be given in, and remits the same when lodged to the Auditor to tax and report.

Note.—The buildings of the defender are objected to, 1st, because they are not cottages; and 2d, because they are not erected on the sites specified in the plan referred to in the feu-contract.

The defender did not maintain that the house which he was erecting was a ‘cottage,’ but he contended that there was no restriction on the character of the buildings, provided that they were used as dwelling-houses, and that even if there were, the pursuer had no interest to enforce it.

The Lord Ordinary does not think that this answer is well founded. The feu-contract declares that the buildings to be erected on the feu shall be cottages; and again, that the defender shall not be entitled to erect any buildings ‘other than the said four cottages.’ These provisions are so express that, in the opinion of the Lord Ordinary, they cannot be extended by construction in the manner which the defender proposes.

The Lord Ordinary is also of opinion that the pursuer has sufficient interest to insist on the fulfilment of this condition, as the contravention of it might diminish the value of the minerals which are reserved to him.

With respect to the sites, the case is more difficult; for though the defender is not entitled to erect any houses other than cottages, he is not prohibited from building larger cottages than those referred to in the feu-contract. His obligation is to build cottages as good as those already erected on Henderson's feu; and this implies that he may erect cottages which are larger and better. But this could not be done without occupying a larger area than that shewn on the plan as the site for building. Further, it is not easy to reconcile the restriction for which the pursuer contends with the provision that the cottages and other buildings shall be erected at a distance of not less than fifteen feet from the west side of the parish road.

Considering that the restrictions on the use of property must, in order to be effectual, be expressed in the clearest manner; and besides that the pursuer has no apparent interest to object to the position on which the defender's house has been erected, the Lord Ordinary has not given effect to the objection stated by the pursuer with respect to the site.”

The defender reclaimed, and argued—The clause in the charter obliged the defender to erect buildings of at least the size of cottages. A cottage was only the minimum. The object was to secure the feu-duty, and the pursuer had no interest to require that a cottage only should be erected. The word cottage was not confined to a house of one storey.

Authority— Campbell v. The Clydesdale Banking Company, June 19, 1868, 6 Maoph. 943.

At advising—

Judgment:

Lord President—There are two questions distinctly raised in this record, and both have to be considered. The first is whether the defender in building on the ground feued under the conditions of the feu-contract of 10th June 1868 is entitled to deviate from the extent of the area shewn upon the plan as applicable to each of the four cottages. The provision of the feu-contract is that “the buildings to be erected on the foresaid plot or area of ground shall consist of cottages with suitable offices, which cottages shall not exceed four in number, and shall be built on the sites shewn on the said plan or sketch, and shall front the north, and shall each of them be in point of size and accommodation, as well as architectural character, at least equal to either of the two cottages which have been already erected on the ground to the southward thereof, lately feued to the said William Henderson.” Taking this clause as a whole, I am satisfied, with the Lord Ordinary, that it is not intended to restrict the feuar to confine himself absolutely within the area specified upon the plan. I think that is too strict a construction to put upon the clause. The kind of building is another affair, but keeping that out of view, I do not think that any deviation will make a violation of the feu-contract, except in so far as that building is to be one of small size. If it had been intended that the cottages were not to exceed the proportions they bear in the plan, as measured according to the scale, it would have been reasonable to insert the dimensions, which could be ascertained by a pair of compasses, and if it was the meaning of parties that the feuar was to be restricted to an area of 40 by 30 feet, it should have been so stipulated. I cannot read the words as incorporating the plan with its strict measurement, but merely as shewing the general way in which the cottages were to be built. So far I agree with the Lord Ordinary in refusing to sustain that ground of action.

But it is equally clear that there has been a violation of the feu-contract in another part of its provisions—I mean in regard to the style and size of the cottages so far as their height is concerned. What it was intended should be erected was four cottages in the ordinary and usual acceptation of the word, i.e., single storey houses. That is the common and popular meaning of the term, and does not exclude the building of apartments in the roof with windows. That is very common; and one might almost say there are as many cottages with windows in the roof as without them. Whether these are labourers' cottages or of a more ornate character is of no matter, because I am not disposed to exclude anything of the nature of houses with windows in the roof. There is a very good example of that kind of cottage to be found on the ground feued by Mr Henderson in 1867, adjoining the defender's feu, where there are two houses with windows in the roof.

But then the building which the defender has erected is not a cottage, but a totally different kind of building of two square stories in height. If you look at the back the windows are all under the roof, both upper and lower, and when you come to the front, where it is said that the windows run up into the roof, I think this observation may be made, that those which are not ornamental do not run up, and that the reason why the others do is for the purpose of ornamentation. That building is, in my opinion, no longer a cottage merely, where two out of the

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four windows are so constituted that the roof runs out above them.

Is the superior accordingly entitled to have the house pulled down, in so far as it exceeds the limits of a cottage? I have not the least doubt that in inserting the clauses contained in the feu-charter the superior had several objects in view. One was to have as much building as would secure his feu-duty, and that is an object provided for in all feu-contracts. Another was to provide that the buildings should be of the same general character as those in the neighbourhood, and that was for the benefit of the adjoining feus. But surely it is not out of the question to say that there is an additional reason to be found, and that is suggested by the fact that there are minerals in the district of a valuable kind. They are reserved to the superior, and he contemplates working or letting them. He undertakes to be responsible for any damage thereby caused, and has therefore a most material interest in preventing what buildings shall or shall not be erected on the ground. Surely the superior would have an obvious interest on the face of the feu-contract to prevent the erection of buildings or manufactories of a ponderous character, and to make that a real burden upon the feu. But is it not equally natural that a superior, in such a position, should desire to secure himself against the erection of buildings even of the nature of dwelling-houses. It would be awkward if these were converted into a street with buildings of three or four stories high. Therefore it is that he limits the feuar with regard to these. One is to be of a certain value to secure the feu-duty, and then there are to be three more, at least equally good as those erected by Henderson. But he has a separate clause of prohibition, which is in these terms—“And the said James Wilson Cairnduff and his foresaids shall not be at liberty at any time to erect any buildings upon the said plot or area of ground other than the said four cottages, to be occupied as dwelling-houses, with suitable out-buildings or office-houses, to be used and occupied in connection therewith.” It is said there is no restriction as to the size of the out-houses or offices. I think there is. They are to be suitable, and it would be a dangerous proceeding for this vassal to erect a coach-house of two stories. But that is a matter on the construction of the deed, and is not before us.

I think the defender is only entitled to build a house of one storey, and therefore have no hesitation in agreeing with the Lord Ordinary.

Lord Deas—The first question for consideration here is what kind of building is prohibited by this feu-contract. It prohibits, in so many words, every kind of building except “cottages.” Without going into the inquiry what is a cottage, which may be doubtful and difficult, I can have no doubt that “cottage” in this deed means a building of one storey. The only cottage mentioned is that belonging to Henderson, and the plan shews us that in speaking of “cottages” his is referred to. The next question is, why was the prohibition inserted? As your Lordship has pointed out, there are two reasons for the stipulations made in the feu-contract as to the kind of building. One is that there shall be buildings of a certain value, to secure the payment of the feu-duty. The other, that the amenity of the district should be preserved. Plainly both were in the mind of the superior, and his desire was that the cottages, so long as they stood, should possess a certain uniformity, and be of an agreeable description. But it does not follow that there may not have been another reason, and nothing is clearer on the face of this deed than that this was that the superior might be enabled to work the minerals without being involved in ruinous damages. We are told in the evidence quite distinctly that there do exist there strata of minerals of a very valuable description. The superior reserves the minerals, and that is enough to shew that he thinks he has an interest. He comes under an express obligation to pay damages done by the mining operations. It is impossible to imagine a more direct or stronger inference that the reason why he made the stipulation that the buildings should be restricted to cottages was that they might not be brought down by, and that he should not have to pay damages for, the working of the minerals. That is clear from the deed. It is said that the superior must have an interest in order to entitle him to succeed. Let that be conceded. But here we have a clear and distinct interest, and I have therefore no hesitation in coming to the same conclusion as the Lord Ordinary.

On the other point, whether the vassal was bound to keep to the sites marked on the plan, I give no opinion in favour of or against it. It might be a troublesome and difficult question.

Lord Ardmillan—I agree with the Lord Ordinary. This house is not the sort of house contemplated by the contract of feu, and it is not a cottage in the ordinary sense. I am glad to be assured on this point by referring to Richardson's Dictionary. The word “cottage” does not indeed occur in its proper place in the alphabetical order; but under the word “cote” or “cot” the word “cottage” is given, and these words are explained as “Anything which covers, shelters, or protects the human or any other body, whether applied to a place for men to dwell or rest in, or for the shelter and protection of sheep, pigeons, or other animals,”—a very general description, but including a cottage.

Chaucer and Surry are quoted as giving illustration of the word cote. Spencer says—

“But if to my cottage thou wilt resort, So as I can, I will thee comfort.”

Dryden says—

“But what plain fare her cottage did afford— A hearty welcome at a humble board— Was freely hers; and to supply the rest An honest meaning and an open breast.”

In Latham's Dictionary, published in 1866, I find the word cottage given as a “hut, mean habitation: cot, little house,” and there is a quotation from Shakespeare—

“The self-same sun that shines upon his Court Hides not his face from our cottage, but Looks on both alike.”

I cannot doubt that what is meant generally by the word cottage is a dwelling with a character of simplicity and humility. What was in this case meant was a house of one storey; and the superior had an interest to make that a condition

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as larger buildings might increase his responsibility for mineral workings. The house actually erected and now complained of is not of one storey, and is not of the style and character desired, and alone permitted, by the superior. I therefore agree with your Lordships.

Lord Mure concurred.

The Court adhered.

Counsel:

Counsel for Pursuer (Respondent)— Dean of Faculty (Watson)— J. A. Crichton. Agents — Dewar & Deas, W.S.

Counsel for Defender (Reclaimer)— Asher— J. P. B. Robertson. Agent— A. Morrison, S.S.C.
1876