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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crum Ewing and Others v. Hasties [1878] ScotLR 15_263 (12 January 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0263.html
Cite as: [1878] ScotLR 15_263, [1878] SLR 15_263
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
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v.
Facts:
In the feu-charter of certain subjects feued for the purpose of making a street there was this condition—that the houses to be built upon them should be “used as private dwelling-houses only in all time coming.” There was also a clause enumerating at length certain objectionable trades and manufactories to which the feu was not to be applied. Both conditions were made real burdens on the feus in favour of the whole feuars and their dis-ponees upon the lands. Where it was proposed to use one of the houses as a boarding and day-school, the proprietors themselves residing there— held ( rev. the Lord Ordinary, Curriehill) that such a use would be a contravention of the conditions of feu, and interdict granted accordingly against it at the instance of other feuars in the street.
The complainers in this action were Mr Cram Ewing and others, residents in Belhaven Terrace, West, Glasgow, a street which consisted of twelve dwelling-houses, forming a separate division, facing the Great Western Road. The situation was highly eligible, and the houses were of a superior class, being of the value of from £5000 to £7000 each. All but three belonged to the complainers severally. Two of the three were for sale, and the respondents, who were Misses Hastie, had recently purchased the third, which was No. 23 of the terrace.
The original titles of these subjects when feued out by the superior all contained the following clauses:—“( Fourth) … And it shall not be lawful to nor in the power of the second party” (feuar) “or his foresaids, or his or their tenants in the said lots of ground, to … exercise or carry on, erect, or set down upon or within the said lots of ground, or the buildings erected or to be erected thereon, any trade, businesses, process, occupation, or manufacture of brewing, distilling” (a number of different manufactories were here specified) … “or any other manufactories and works; nor shall it be lawful for them to erect on said lots of ground any inn, hotel, or public stable; and they are prohibited from carrying on therein the businesses of an inn, or hotel-keeper, or stabler, or of selling porter, ale, or spirituous liquors, from occupying any
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buildings erected or to be erected on said lots of ground as a shop, warehouse, or store; and without prejudice to the foresaid enumeration, the second party shall not carry on any trade or business whatever, though not above specified, which may be considered injurious, offensive, nauseous, or hurtful, or occasion annoyance to the neighbouring feuars and disponees upon the first party's lands, or make any other erections whatever, except such as are hereinafter provided for.” “( Ninth) The second party and their foresaids shall be bound, on or before the term of Martinmas 1873, to erect, so far as not already done, a lodging on each of said lots of ground fronting said Great Western Road, not exceeding three storeys in height above the level of the said Great Western Road, with attics, and which shall be used as private dwelling-houses only in all time coming … and declaring that before proceeding to build, the plans shall be submitted to the first party” (the superior) “or his foresaids, or his or their architect for the time being, for approval.” These clauses further were declared to be real burdens and servitudes upon the ground feued, ” “not only in favour of the first party and his foresaids, but also of the whole feuars and disponees upon the first party's lands and their successors.”
The complainers averred that the Misses Hastie, the respondents, intended to use No. 23 not as a private dwelling-house, and that they intended to transfer thither a school which they were then carrying on at another house, and which was attended by from fifty to seventy day-scholars and about twelve resident boarders. The respondents admitted that they intended to use the house for the purposes of a school, with the explanation that the house would be furnished in all respects as a private dwelling-house, that the street door would be kept closed, and that they were to reside in it themselves, with their mother, niece, and servants.
The complainers presented this note of suspension and interdict, to have them restrained from so doing, on the ground that it was a contravention of the conditions of their titles, and otherwise injurious to them.
The respondents pleaded that the complainers had no title or interest, and further that there was no contravention.
The Lord Ordinary pronounced an interlocutor containing these findings:—“(1) Finds that by the feu-contract … under which the ground upon which the houses belonging to the complainers and the respondents respectively are built is held, it is provided that said houses are to be used as private dwelling-houses only, and that there shall not be carried on upon the said ground, or in the buildings erected or to be erected thereon, any trade or business which may be considered injurious, offensive, nauseous, or hurtful, or occasion annoyance to the neighbouring feuars and disponees: (2) Finds that the complainers aver, and that the respondents admit, that the house belonging to the respondents is to be occupied by them as a dwelling-house for themselves and certain members of their family, and for twelve young ladies as resident boarders, who are to receive tuition in said house along with upwards of fifty young ladies who are to attend as day-scholars: (3) Finds that the complainers have no title or interest to complain of the proposed use and occupation of said house by the respondents, except in so far as the same may be injurious, offensive, nauseous or hurtful, or occasion annoyance to the complainers as neighbouring feuars: (4) Finds that the complainers aver that the proposed use and occupation of the respondents' house will be injurious to the complainers' property, and will occasion annoyance to the complainers as neighbouring feuars: Appoints the cause to be enrolled for further procedure, and reserves all questions of expenses.”
The complainers after obtaining leave reclaimed, relying in their argument upon the 9th clause of the feu-charter.
Authorities— Doe v. Keilling, 1 Maule and Selwyn, 95; Kemp v. Sober, 1851, 1 Simon's Chanc. Reps. 517 (N. S.); Frame v. Cameron, Dec. 21 1864, 3 Macph. 290.
Argued for the respondents—The 9th clause could not have effect without evidence of injury. The complainer must have a substantial interest, as was held necessary in Frame's case. The clauses must all be read together. Such an interpretation as would make the 9th clause restrict the use to a dwelling-house only would altogether obliterate the 4th, which was however clearly meant to define the uses of the ground and of the houses to be built upon it. Even, however, taking the 9th clause alone, they were within it. The restriction must be of the nature of a known servitude. What was the use of carefully enumerating all objectionable uses if the general clause was to be deemed capable of covering every possible objectionable use.
Authorities— Mackenzie v. M'Neill, Feb. 5, 1870, 8 Macph. 520; M'Gibbon v. Rankin, Jan. 19, 1871, 9 Macph. 423.
At advising—
It is in this state of the titles that the complainers ask to have the respondents interdicted from using, as they have intimated their intention of doing, the house No. 23 Belhaven Terrace, which they have recently bought, not as “a dwelling-house only, ” but as a boarding-school for about six resident boarders and fifty day boarders. To this application for interdict the respondents have stated as their first plea-in-law that the complainers have neither title nor interest to insist in their complaint, and the Lord Ordinary has substantially given effect to this plea.
Now, first, in regard to the pursuers' title, it is quite true that there is no direct contract between the complainers and the respondents. But it is
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Having regard to the terms in which the feu-rights of the feuars in Belhaven Terrace are expressed, as now referred to, I can have no doubt that the question of the complainers' title to insist in the present application for interdict against the respondents must be sustained, in the same way and for the same reasons as the title of a party similarly situated was sustained in the recent case of M'Gibbon v. Rankin senr. and Others, January 19, 1871, 9 Macph. 423, a case not only analagous, but, so far as the matter of titles is concerned, in all respects identical with the present. The Judges in that case, while unanimous in sustaining the pursuer's title, appear to have differed as to whether it rested on jus quæsitum tertio or implied contract. So far, however, as the parties litigants are interested, it is of little or no consequence which of the principles is the true one. For, my own part, I am inclined to hold that both of them are applicable—that while the principle of implied contract arises from the mutuality of right and obligation which is created amongst all the feuars in Belhaven Terrace by the terms of their feu-rights, a jus quæsitum tertio is also conferred by their titles on each of them. In accordance with the decision in the case of M'Gibbon, judgment was shortly afterwards pronounced in the case of Alexander and Others v. Stobo and Miller, March 3, 1871, 9 Macph. 599.
As to the complainers' interest as well as title to insist in the present application, I can have no doubt. It is impossible, I think, to say that such a school, attended by so many young persons as the respondents admit they are likely to have as residents and day-boarders, may not in many ways be disagreeable and annoying to the residenters in the neighbouring and especially in the adjoining houses. The complainers, all of whom have houses in Belhaven Terrace, and two of whom are owners of the houses adjoining the respondents, have therefore a clear and undoubted interest to prevent if they can the respondents from occupying their house as they propose and threaten to do, in respect of the noise and bustle and annoyance otherwise which such occupation would unavoidably give rise to.
Nor do I think there can be any doubt that the respondents' threatened occupation of their house would be a contravention of their as well as the complainers' feu-rights, that their houses can only be used as private dwellings. This very point, in circumstances almost identical, was recently, and since the Lord Ordinary's judgment, so determined in the Court of Appeal in England, Chancery Division— Germany v. Chapman—where, as appears from the notice of the case in the Weekly Notes, No. 49, Dec. 8, 1877, p. 243, it was held, without requiring proof, reversing a judgment of Vice-Chancellor Bacon, that the use of a house as a school for girls was a breach of a contract such as there is here, and therefore injunction was granted.
In these circumstances, I am of opinion that the Lord Ordinary's interlocutor reclaimed against ought to be recalled, and interdict granted against the respondents using their house No. 23 Belhaven Terrace as proposed by them.
The Court recalled the interlocutor reclaimed against, and granted the interdict craved.
Counsel for Complainers—(Reclaimers) Balfour—Robertson. Agent— C. S. Taylor, S.S.C.
Counsel for Respondents— Asher—Lorimer. Agents— Finlay & Wilson, S.S.C.