Scottish Court of Session Decisions

This was an action of declarator and removal, and alternatively of damages, at the instance of James Anderson of Hilton against the Aberdeen Agricultural Hall Company and John Catto of Catto-field. The pursuer was successor of Sir William Johnston, who was proprietor of the estate of Hilton, near Aberdeen, and who feued certain parts of the estate to Mr Catto in 1862, and another part in 1868.

In both of these feu-charters the following restrictions appeared:—“That any buildings erected on the said lands and others hereby feued shall be of a neat and suitable description, built of stone or ornamented brick and lime, and slated, and specially all tiled and thatched buildings are expressly prohibited; that with the view of securing the amenity of the feus on the lands of Hilton the superior shall be consulted in regard to the position of the houses and buildings proposed to be erected, and his approval obtained; and the said John Catto and his foresaids shall not be allowed, without the written sanction of the superior, to erect any brewery, distillery, workshop or yards for masons, wrights, smiths, coopers, weavers, or candlemakers, nor crackling-houses or slaughter-houses, nor shall he or they be allowed to carry on on the said lands and others hereby feued, without the superior's written sanction, any nauseous chemical operations, noxious or noisy manufactures, nor anything which may be a nuisance or may occasion disturbance to any of the neighbouring feuars or proprietors, nor shall the said John Catto and his foresaids or his or their tenants sell spirits or malt liquors on the said lands and others hereby feued, or allow the same to be sold, without the consent of the superior, nor shall the said John Catto and his foresaids quarry stones on said lands and others hereby feued except for the purpose of building thereon.” In 1877 Mr Catto granted to the Agricultural Hall Company of Aberdeen from his feu a subfeu of a piece of ground, and in the subfeu right he inserted or referred to all the above restrictions. The company thereupon built upon their subfeu a hall for the purpose of holding therein large sales of cattle. These sales were at first unfrequent, but gradually they became much more common. The pursuer objected to this building as being in contravention of the restrictions in three particulars—1st, that the building was not neat and suitable in the sense of the feu-charter; 2d, that the approval of the superior had not been obtained to the position of the building; 3d, that the use to which it was put was in contravention of the title. With regard to the third condition of the feu-charter it was averred—“The said use of the defender's ground or of the said building as a place for holding sales of cattle, &c., constitutes a nuisance, and occasions, and so long as carried on will continue to occasion, disturbance to the neighbouring feuars and proprietors. The adjoining lands of Hilton are well suited for feuing purposes. There are also other dwelling-houses in the immediate neighbourhood belonging to other proprietors. The quiet and amenity of the neighbourhood and of the accesses to the said dwelling-houses, including the pursuer's said house of Hilton, are and will be seriously prejudiced by periodical cattle sales on the defenders' said feu. On the days of the sales there are great concourses of cattle, horses, sheep, pigs, and other stock, as well as of cattle-dealers, cattie-drovers, and other persons interested in the trade, and there is frequently much driving of cattle, horses, sheep, and pigs on the said road leading to Hilton House, to the danger and disturbance of the neighbours.” The hall was situated within 400 yards of the Kittybrewster Railway station, where immense quantities of

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cattle were constantly arriving and being sent away.

The pursuer pleaded, inter alia—“1. The erection of the building in question is in violation of the conditions of the said feu-charter, in respect—(1) It is not a neat and suitable building in the sense of the said title; and (2) The pursuer has not been consulted in regard to the position of the said building, nor has his approval been obtained, and he objects to the same. 2. The use of the said ground for the sale of cattle, &c., in the manner condescended on is in violation of the feu-charter, as being a nuisance, and as occasioning disturbance to the neighbouring feuars and proprietors.

The Lord Ordinary ( Curriehill) assoilzied the defenders, and appended to his interlocutor a note, which, after narrating the circumstances, proceeded as follows:—“These conditions it is now necessary to examine minutely and in detail. There is no special use expressed to which the subjects are to be applied, and in particular there is no provision that the buildings are to be conform to a specified plan or style and model, or that they shall be used exclusively as dwelling-houses and the like. But there is, in the first place, a declaration that ‘any buildings erected on the said lands and others hereby feued shall be of a neat and suitable description, built of stone or ornamented brick and lime, and slated, and specially all tiled and thatched buildings are expressly prohibited.’ Now, the pursuer says that the feuars can comply with that condition only by erecting buildings which shall, in the opinion of him as the superior, be neat and suitable, taking into consideration the other parts of the estate which are retained in his hands un-feued. But I am humbly of opinion that that is not the sound construction of the clause. I think the words ‘neat and suitable’ are explained by the context, and that the buildings will within the true meaning of the clause be ‘neat and suitable’ if they are built of stone or ornamental brick and lime and slated, and are not buildings with tiled and thatched roofs. Whether a building is neat or the reverse must always be matter of opinion, and the term ‘suitable’ is a relative term to which there is here no correlative; and unless the clause is to be read as I have construed it there is really nothing in the deed to show what the parties intended. Had the intention been that the buildings should be ‘suitable’ to any special purpose, such as dwelling-houses, ornamental villas, or the like, it would have been easy to say so. But nothing of the kind has been said. All that has been said is that the buildings shall be ‘neat and suitable’ if they are built of stone or ornamental brick and lime, and are slated and not thatched or tiled. If the intention was different—if it was what the pursuer alleges it to have been—all I can say is, that the intention has not been effectively expressed, and cannot be inferred from the words employed according to their natural meaning and signification. In short, the superior, if he intended to make himself the arbiter of this question, has failed to do so by the terms which he has employed. The question of ‘neatness’ is, as I have said, a matter of taste and opinion, and so far as an opinion can be formed from the evidence, I am unable to say that the buildings are not neat, and they are undoubtedly built of stone and lime, and are slated.

“In the second place, it is provided that ‘with the view of securing the amenity of the feus on the lands of Hilton the superior shall be consulted in regard to the position of the houses and buildings proposed to be erected, and his approval obtained.’ Here I would observe that in nothing I have read either in the former clause or in this clause is there anything said in the way of restricting the feuar to any particular kind of building. ‘Houses and buildings’ are the general terms used, and unless in so far as prohibited, the feuar is entitled to erect anything he likes, provided it is of stone and lime, and slated, and is not tiled or thatched. But he is to consult the proprietor as to the position in which the building is to be placed, and he is to get approval of the position, but of nothing else. It is true that the defenders did not obtain the approval of the pursuer before the erection of the buildings complained of; and I shall afterwards consider the effect of their failure to do so. In the meantime I shall only say that as no objection has ever been stated by the pursuer to the position of the buildings, it would be most inequitable now to order the removal of the building merely because the approval of the site had not been obtained from the pursuer.

In the third place, it is provided that the said ‘John Catto and his foresaids shall not be allowed, without the written sanction of the superior, to erect any brewery, distillery, workshops or yards for masons, wrights, smiths, coopers, weavers, or candlemakers, nor crackling-houses or slaughter-houses.’ Now, these are buildings the erection of which is expressly and directly prohibited; but every other kind of building not falling under one or other of these categories the feuar is entitled, so far as this charter is concerned, to erect on the grounds feued to him. It is not contended that the building complained of is an erection of any of the prohibited classes. But then the clause goes on to say:—‘Neither shall he nor they be allowed to carry on on the said lands and others hereby feued, without the superior's written sanction, any nauseous chemical operations, noxious or noisy manufactures, or anything which may be a nuisance or which may occasion disturbance to any of the neighbouring feuars or proprietors.’ That is the second limb of the clause. The first limb was a prohibition against the erection of manufactories; this second limb prohibits the carrying on in any buildings to be erected, or on the grounds, anything of the character of nauseous chemical operations, or noxious or noisy manufacture, or anything that may be a nuisance or occasion disturbance to neighbours. Now, I am humbly of opinion that what is prohibited is the use of the lands feued in such a manner as to make them or the operations carried on in them a nuisance to the neighbours. But it is not alleged that the defenders are carrying on in their building or on the ground feued to them any of the prohibited operations. The building which they have erected is a hall or mart for the sale of cattle, horses, and pigs, the sales being generally held once a-week, and what is complained of is, not that there is any nuisance caused by these sales, or by the congregation of animals upon the grounds feued; what is complained of as being a nuisance is that the public road leading from the railway station at Kittybrewster

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to the hall is on the occasion of these weekly sales sometimes so crowded with cattle that the proprietor of a house on the opposite side of the road, not on the Hilton estate, is afraid to allow his little children to walk upon that part of the road while the cattle are going to and from the hall. But the use which is thus made of the public road is made, not by the defenders, but by the farmers and cattle-dealers who are taking their stock to the sale; and it is a use which they as well as the defenders are entitled to make of the road as members of the public, irrespective altogether of this feu-right. If the public right of the road is abused by the defenders or their customers by crowding the road with dangerous animals the pursuers or the neighbouring proprietors may have such redress as the common law will give. But there is not a tittle of evidence to show that after the cattle have left the public road and entered the defenders' hall, or so long as they are within the defenders' premises, there is any inconvenience or disturbance caused to any human being. And to say that because a gentleman living 500 yards off is afraid to let his infants go out with their nursemaid when a herd of cattle are going into market a nuisance is created within the defenders' buildings or on the ground feued to them, seems to me to be carrying the doctrine of nuisance to an extent to which I never heard it carried in this Court; so far as the proof goes, I have not heard anything that amounts to a nuisance within the sense and meaning of this feu-right. The pursuer therefore cannot, in my opinion, succeed in having the defenders' building removed, or its use as a cattle mart stopped on the ground of nuisance.

The only question remaining is, whether the defenders got the consent or approval of the superior to the position? In point of fact they did not get that consent. On the other hand, the superior, neither before he raised this action nor even in the course of this action, has ever objected to the position of this Agricultural Hall. He certainly did not object until after the whole building was finished. And it is clearly proved that he, or at all events his agent, who seems to have had full power to act for his client, was all along fully cognisant of the position of the building. It had been begun before the month of June 1877, and at the end of July it had been practically finished. The defenders appear to have been quite willing to meet the views of the superior in point of taste as to the way in which the gables fronting the road should be finished off; but that was entirely a voluntary concession on their part, and as the pursuer did not suggest any alteration the building was completed. But never from the beginning of the correspondence has the slightest objection been taken by the pursuer to the position of the building. The truth is that the pursuer has all along mistaken his powers under the feu-charter. He seems to have imagined that he was entitled to have the plans and specifications of the building submitted to him for his approval, and to veto the use of the building for the purposes contemplated by the defenders. He never had—at all events he never stated—any objection to the building being erected on its present site, and he allowed it to be completed under the notion, erroneous on his part, that he could prevent it from being used as a cattle mart. Under these circumstances, it will not do for the pursuer now to come forward and say at the end of the day—‘You erected this building’ (which cost £4000) ‘without having got my approval of its position, and therefore you must now remove it.’ The pursuer is not entitled to allow money to be expended by his feuars in that way, and then come forward and make such a demand.

As to the pursuer's claim for damages, which is alternative to his claim to have the building removed, it can be maintained only in so far as he can establish violation of the contract and injury sustained by him thereby. But, in the first place, if I am right in holding that the pursuer is not entitled to have the building removed in respect that he acquiesced in its erection on the site which it now occupies, there has been no violation of the contract. And, in the second place, even if it should be held that the strict letter of the contract has been violated by the defender, I am of opinion that the pursuer has entirely failed to prove that he has sustained any damage by the building having been erected where it now stands.

The pursuer, or rather his author, may have themselves seriously damaged the estate of Hilton by allowing the Police Commissioners to erect public slaughter-houses on the ground feued to Catto, but I have been unable to find in the proof any evidence of damage caused or likely to be caused by the erection of the defenders' hall on the site in question. It is a case of damnum absque injuria.

On the whole matter I am therefore of opinion that the defenders are entitled to be assoilzied from the action, with expenses; but as the interests of Mr Catto and the other defenders are substantially identical, I think that the expenses of the proof should be taxed on the footing that the defence after the closing of the record should have been a joint defence.”

The pursuer reclaimed.

Pursuer's authorities— Walker v. Brewster, Nov. 4, 1867, 5 L.R. (Eq.) 25; Crum Ewing v. Campbell, Nov. 23, 1877, 5 R. 230; Campbell v. Clydesdale Banking Co., June 19, 1868, 6 Macp. 943; German v. Chapman, Nov. 27, 1877, L.R. 7 Ch D 271; St Helen's Smelting Co. v. Tipping, 1865, 11 Clark's H. of L. 642.

At advising—