Scottish Court of Session Decisions

On the 28th May 1858 Dr Robert Reubens Jefferiss and others, as trustees of the Queen's Theatre and Opera House, Edinburgh, which had been built on the site of the Adelphi Theatre, lately destroyed by fire, and which they held in feu off Heriot's Hospital, granted a disposition in favour of Mr John Brown of Marlie, by which they sold to him that theatre with the ground upon which it stood, and the whole pertinents, for certain onerous causes, under this express declaration—“Declaring always, as it is by the said disposition expressly provided and declared, that the subjects and others, with the pertinents above specified, were thereby disponed with and under the real burden of payment of a perpetual annuity of two pounds sterling to each of the shareholders or

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rentallers of said theatre, whose names were inserted in a list signed as relative thereto (but under the declaration and reservation after mentioned), and to the successors or assignees of the said shareholders or rentallers to whom the annuities may be transferred, in manner after mentioned, and to such other person or persons as may establish their right as shareholder or shareholders; … and which annuities are by said disposition constituted real burdens affecting the subjects and others above described, in favour of them, the said Robert Rubens Jefferiss, James Maidment, William Muir, Thomas Scott, David Smith, Peter Scott Fraser, John Ross, and James Neilson, and the acceptors or acceptor of them, … . . And also further providing and declaring that each of said shareholders or rentallers, or the assignee or successor of such share-holder or rentaller, should at all times be entitled to free admission to the audience department of said theatre, other than the present private boxes and the box then set apart for them, the first and second parties thereto, as trustees foresaid, and which box should continue to be set aside for the sole use of them, the said first and second parties, as trustees foresaid, and their successors in office; but declaring that said right of free admission should be personal to each shareholder or rentaller, and that such shareholder or rentaller should not be entitled to substitute anyone in his or her right to admission to whom the share itself should not have been transferred in manner before expressed; and further, in the event of a share being acquired by more than one individual, only one of such individuals shall be entitled in virtue thereof to free admission to said theatre as aforesaid; and also providing and declaring that the said John Brown and his foresaids should not be entitled, without the consent of the said shareholders or rentallers and their foresaids, to convert the said theatre and opera house to any other use or purpose than a theatre or opera house; and also providing and declaring that the said theatre and opera house should be kept open for performance during at least six months in each year; and in the event of the said John Brown or his foresaids letting the said theatre or opera house to the lessee or tenant for the time being of the Theatre Royal, Edinburgh, he should take such lessee or tenant bound, so long as he also continued tenant or lessee of said Theatre Royal, to give the shareholders or rentallers of the said Queen's Theatre and Opera House free admission to the said Theatre Royal during the time the former is not kept open for performance.” Mr Brown died uninfeft in July 1858 leaving a trust-disposition and settlement by which he conveyed to William Shaw Soutar, writer in Blairgowrie, his whole means and estate. The latter completed his title to the theatre by instrument of sasine in his own favour in the Particular Register of Sasines on the 5th August 1858.

In 1865 the theatre was destroyed by fire, and Mr Soutar, acting under legal advice, rebuilt the theatre at a cost of £17,000, and opened it in 1866 as the Theatre Royal. In June 1874 Mr Soutar sold the new theatre to the present defender Mr Logan for £11,000, with entry at Martinmas 1874, but before the price was paid and before any conveyance was delivered the theatre was again entirely destroyed by fire on the 6th February 1875. A dispute took place as to the application of a sum of £12,000 for which the building had been insured, and after some delay the disposition was delivered, and Mr Logan was infeft on 27th April 1875. In this disposition the subjects were disponed to Mr Logan, his heirs and assignees, subject to all burdens and privileges contained in the disposition of 1858. While in course of erection he however sold the theatre to the present defenders, the Edinburgh Theatre Royal Company (Limited), by disposition dated 25th September 1875. This conveyance was made, inter alia, “‘with and under the real burdens, conditions, provisions, declarations, and others,’ specified in the foresaid instrument of sasine in favour of Mr Soutar in 1858, and ‘with and under and subject to the whole burdens and others incumbered on me, the said William Hugh Logan, under the titles of said subjects, from and after the term of Whitsunday 1875, being the term of entry of The Edinburgh Theatre Royal Company (Limited), as after mentioned, and specially, without prejudice to the said generality, the said company shall thenceforth pay the annual sums or annuities due to the rentallers or shareholders whose names are enumerated in a schedule hereto annexed, and signed as relative hereto, and to the successors or assignees of the said rentallers or shareholders, and to such other person or persons as may establish their right as shareholder or shareholders, and allow these parties the privileges to which they are entitled; and in respect that no annuities and privileges have been asked on several shares for many years, the said Edinburgh Theatre Royal Company (Limited), shall be bound to take, as by acceptance hereof they do hereby take, on themselves and their foresaids, all liability or responsibilities now incumbent on me in respect of such shares, or of all arrears of annuities claimable in respect of these, and that whether the same may become payable before the said term of entry, or may become payable thereafter, subject always to the right of the said The Edinburgh Theatre Royal Company (Limited), and their foresaids, to plead all objections competent to me to any claim on the said shares by any party.’ The names of the shareholders or rentallers, to the number of 104, are contained in a schedule appended to the disposition, and signed as relative thereto.”

The Edinburgh Theatre Royal Company (Limited) were incorporated under the Companies Acts 1862 and 1867, and in the prospectus of the proposed company it was stated that one of the principal burdens on the property was the annual burden of £2 per share to each of 82 rentallers, who were also entitled to a single free admission.

The said theatre, which continued to be called the Theatre Royal, was opened for public performances on 27th January 1876, and the defenders James B. Howard and William Hugh Logan became the lessees under a lease from the Theatre Royal Company (Limited), dated 24th December 1875, in which the lessees were placed under the obligation of keeping the theatre open as a place for the performance of dramatic and theatrical entertainments for a period of not less than six calendar months in each year during the currency of the lease, and under the special provision and declaration that the rentallers should be entitled to all rights of admission to which they were entitled under the provisions contained

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in the disposition by Dr Jefferiss and others to Mr Brown in 1858.

After the re-erection of the existing theatre, Mr Howard, the lessee, complained that the trustees were abusing their privileges by introducing into their box large numbers of friends, and with a view to an amicable settlement of the dispute a meeting was held on 13th February 1877 between Mr Howard and the trustees, under which certain concessions were made by the latter, to subsist as long as Mr Howard should remain lessee of the theatre. Mr Logan on hearing of this maintained that Mr Howard as one of two co-lessees had no power to make such an arrangement. On 17th November 1879 the colessees refused to allow the rentallers to book seats in the theatre as formerly, only consenting to booking in the audience department other than the private boxes and the first three rows of the dress circle, and as they insisted in this demand the rentallers brought this action against them, and the Edinburgh Theatre Royal Company (Limited) as nominal defenders, seeking to have it declared that (1) they were entitled to free admission to any part of the theatre except certain of the private boxes, and to book and secure the places beforehand on all occasions on which the privilege is awarded to the public; (2) they had the sole and exclusive right to use the private box set apart for them, and to occupy the same by themselves or others to whom they may give permission to occupy it.

They pleaded—“(1) The pursuers are entitled to decree in terms of the declaratory conclusions of the summons, in respect—(1st) that on a sound construction of the disposition of 1858, and separatim, by virtue of the said deed, and of the usage which has followed upon it, the pursuers, and the other shareholders or rentallers of the Theatre Royal, have a right of free admission to all parts of the audience department of the said theatre, except the boxes corresponding to the private boxes and trustees' box as then existing, and to book or secure seats beforehand, on equal terms with the public; and (2d) that on a sound construction of the said disposition, and separatim, by virtue thereof, and of the usage which has followed upon it, the pursuers, as trustees foresaid, are entitled to the sole use of the box known as the trustees' box, and to occupy the same by themselves or others.”

The defenders on the other hand pleaded—“(1) No title to sue. (2) The right of free admission conferred upon rentallers by the disposition to Mr Brown applied only to the Queen's Theatre and Opera House, and ceased and lapsed by the destruction of that building by fire. (3) As the said disposition contained no obligation upon the disponees to rebuild the theatre which it expressly conveyed, and to which exclusively its clauses and conditions applied, no right can be held as existing in rentallers to free admission to a theatre erected on its site after its destruction. (4) The destruction of the Queen's Theatre and Opera House equally extinguished the right to the use of a theatre box, conferred by the said disposition upon the trustees therein mentioned. (5) In any view, the right to the use of a theatre box is, under the said disposition, made personal to the trustees, and is not communicable by them to their friends.”

The parties to the case put in a joint minute of admissions admitting that “the rentallers of the theatre have had free admission to all parts of the theatre other than the private boxes, and that they have been in use to book and secure seats therein beforehand without payment from the year 1857 to 1865, when the theatre was burned down, and from the time the new theatre was thereafter built, until the year 1875, when it was burned down, and since January 1876, when the present theatre was opened, down to 2d December 1879.”

The Lord Ordinary (Curriehill) found for the pursuers, subject to the qualifications (1) that none of the shareholders or rentallers of the Theatre Royal were entitled to free admission to any of the private boxes; and (2) that no trustee was on any one night entitled both to introduce friends into the trustees' box, and himself personally to have free admission to any other part of the theatre; and further, that they had the sole and exclusive right to use the private box set apart for them, subject to the qualification that not more than four persons should on any one night occupy the said box. In the note which he subjoined to his interlocutor, after narrating the history of the theatre, he added—“The rentallers or shareholders of the old Adelphi Theatre claim—and their claim has hitherto been acceded to—not only payment of their annuities of £2 per share, but the right to obtain free admission to the theatre, and to secure or book their seats beforehand on equal terms with the public. Their trustees also claim, and they have hitherto continuously exercised, the privilege of exclusive occupancy of the private box set apart for them. The defenders Messrs Howard & Logan, who are lessees of the theatre under a lease from The Edinburgh Theatre Royal Company (Limited)—to the terms of which I shall afterwards have occasion to advert—now maintain that the whole of these privileges are at an end, that the rentallers have right to nothing more than their annuities of £2 per annum each, that they are not entitled to free admission, at all events until after the rest of the public are served, and in particular that they are not entitled to secure their places by booking beforehand. It is also maintained that the trustees have no right to a private box, and that at all events, if any such right exists, it is personal to the trustees, and cannot be communicated by them to third persons.

It appeared to me to be desirable, before disposing of the legal questions raised, to ascertain precisely what the practice had been. The range of the inquiry was much narrowed by the defenders lodging a minute, in which they admitted that ‘the rentallers of the theatre have had free admission to all parts of the theatre other than the private boxes, and that they have been in use to book and secure seats therein beforehand without payment from the year 1857 to 1865, when the theatre was burned down, and from the time the new theatre was thereafter built until the year 1875, when it was burned down, and since January 1876, when the present theatre was opened, down to 2d December 1879.’ On this branch of the case I am of opinion that free admission to the theatre is a privilege accessory to the right of each rentaller to his annuity, and that the privilege subsists so long as the ground is occupied as a theatre, at all events by the existing theatre. Whether, in the event of the theatre

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being again destroyed by fire, it would be incumbent upon the proprietors to re-erect a theatre and admit the shareholders thereto is a question on which I express no opinion. I also think that ‘free admission’ means free admission to any part of the audience department of the theatre except the private boxes, including the trustees' box, and to book or secure seats beforehand on the same terms as are accorded to the public. The pursuers contend that they are entitled to admission to all the private boxes except the trustees' box, and other five, being the number in the original Adelphi Theatre. This demand I think unreasonable. There is ample space in the rest of the audience department, the dress circle being much larger than in any of the previous theatres. Decree will therefore be given in terms of the first declaratory conclusions of the summons, subject to the qualifications above indicated.

The result of the proof which has now been led as regards the trustees' box is to show that ever since 1857 the trustees have had a private box set apart for them in each of the theatres which have successively occupied the site of the old Adelphi Theatre, and that they have regularly occupied such box by themselves or by their friends, it being arranged among the trustees that each should have the use of the box for a night in rotation. It is further proved that after the re-erection of the existing theatre in 1876 Mr Howard, the lessee, complained that the trustees were abusing their right or privilege by frequently or occasionally introducing into the box large numbers of friends, sometimes as many as eight or nine. With the view of arranging matters amicably, the trustees on 13th February 1877 had a meeting with Mr Howard, which resulted in the agreement by which it was provided, inter alia (1) ‘That the private box should be set apart for the sole use of the trustees and their friends, the occupancy of which should be limited to four persons on one night.… (4) That under exceptional circumstances Mr Howard should be entitled to ask the trustees to give up the use of their box for a particular occasion; and in the event of the trustees granting this request, Mr Howard should be bound to provide another equally good private box, or four of the best unlet seats together in the dress circle for that occasion, in lieu of the box so given up. This agreement bears to be a compromise by the trustees to subsist during Mr Howard's tenancy of the theatre, under express reservation of their legal rights in any question with the present proprietor or any future proprietors or lessees.

It now turns out that at the date of this agreement the defender Mr Logan was co-lessee of the theatre with Mr Howard under the lease from the proprietors dated 24th December 1875 (to endure for fourteen years after Whitsunday 1876), by which the subjects were let to Mr Howard and Mr Logan, and the survivor of them, under an obligation to keep the theatre open as a place for the performance of dramatic and theatrical entertainments therein for a period of not less than six calendar months in each year during the currency of the lease, and under the special provision and declaration that the rentallers should be entitled to all rights of admission to which they were entitled under the provisions contained in the disposition by Dr Jefferiss and others to Mr Brown (1858). The lessees are also taken bound ‘to set apart for the sole use of the trustees of the said rentallers or shareholders, and their successors in office, in the event of the said trustees establishing their right thereto, a private box in the said Theatre Royal; and in the event of the trustees claiming right to such box, the proprietor of the theatre shall be under no obligation to challenge their right thereto; but if the lessees desire that such a right be challenged, they shall do so at their own expense, and in any proceeding which may be instituted with reference to such right they shall be entitled to use the name of the proprietors of the said theatre, they always relieving said proprietors of all expenses and liabilities that may be incurred in connection with such proceedings.’ Mr Logan now maintains that Mr Howard, as one of two colessees, had no power to make any arrangement with the trustees as to the use of the private box without the consent of his co-lessee, but I do not think he is entitled to take up that position. Not only were the trustees not aware that Mr Logan was a co-lessee, but their ignorance was attributable to Mr Logan himself, who in the public play-bills issued at the time of the agreement allowed Mr Howard to be put forward as sole lessee of the theatre. The whole of the playbills for the years 1876, 1877, and 1878 have been produced. In every one of them for the years 1876 and 1877 the name of Mr Howard, and of him alone, appears as lessee, and it was not until January 1878 that the play-bills bore the names of Mr Howard and Mr Logan as co-lessees. It seems to me, therefore, that the compromise made by the pursuers with Mr Howard in February 1877, and acted upon by both parties ever since, is binding upon Mr Logan, and cannot now be repudiated by him.

These views, however, if sound, would not lead to any judgment regarding the trustees' box, which could take effect after the termination of Mr Howard's tenancy of the theatre. It is therefore necessary to deal with the broad question of right raised by the pursuers in their summons and at the proof. The question is, I admit, not free from difficulty, but my opinion is that the right of the trustees to have the exclusive use of a private box, which was undoubtedly reserved by the disposition to Mr Brown of 1858, has been transmitted with the various conveyances, and may be exercised by the trustees, at all events so long as the present theatre exists. That the continuance of the right is in the conveyance by Mr Logan to The Edinburgh Theatre Royal Company (Limited), and in the articles of association of the company, declared to be conditional on the trustees establishing their right appears to me to be immaterial to the present question. The right was a burden in the right of Mr Logan under his own title to the subjects and the previous titles, which he was not entitled to displace without the consent of the trustees. But while I think the trustees are entitled to have a private box set apart for them in the existing theatre, I also think that their use of it must be subject to regulation. On the one hand, I do not think that their use is restricted to their own personal use. I think it was all along contemplated that they might introduce friends into their box—thus, while in the conveyance to Mr Brown the privilege of free admission was declared to be personal to the rentallers, there is no such qualification of

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the right of the trustees to use the private box. The practice from the beginning—and there is no better exponent of a doubtful title—shows that the admission of friends was contemplated, and the agreement with Mr Howard in 1877 shows very clearly his understanding of the matter. On the other hand, the right must not be nimeously exercised, and it appears to me that the arrangement made with Mr Howard that the number of persons introduced into the box on any one night should not exceed four is a reasonable one, and should be adhered to. I also think that no trustee is entitled both to fill the box with his friends and personally occupy a seat in the dress circle or other part of the theatre on one and the same night.

I need hardly say that the privilege of admitting friends to the box is one which the trustees are not entitled to use for gain, and I mention this merely for the purpose of saying that there is not the slightest ground for alleging or insinuating that any trustee has ever attempted so to abuse the privilege. Indeed, an averment to the effect that the privilege had been so abused was recklessly introduced into the original defences, but was withdrawn at the adjustment of the record. Decree of declarator will be pronounced in favour of the trustees in this branch of the case also, but with the qualifications expressed in the interlocutor.”

The defenders reclaimed.

The pursuers cited the case of Winnie v. Glasgow and South-Western Railway Company, August 3, 1857, 3 M'Queen's App. Ca. 75, in support of their plea-in-law.

At advising—