Scottish Court of Session Decisions

This was an application by the tutors-nominate of the three children of the late W. M. Rankine of Dudhope for power to feu portions of that estate, in such lots and upon such conditions as the petitioners might see proper and most advantageous. The petition set forth—“That being situated within the burgh of Dundee, the said estate of Dudhope is peculiarly adapted for feuing. A considerable portion of the estate has already been feued for villas and streets of houses, and applications from time to time are made to feu portions of the estate to be so built upon. That it will be greatly for the benefit of the estate if your Lordships shall see fit to grant to the petitioners power to feu out such portions of the said lands and estate, and that in such lots and upon such conditions and provisions as your petitioners may see proper and most advantageous for the said estate from time to time; provided always that the rate of feu-duty for the portions so feued shall not be less than at the rate of £24 per acre.” It appeared from a certified rental of the estate that the gross rental amounted to £3763, 5s. 7d., and that £2562, 9s. 2d. of that rental was composed of feu-duties. It further appeared that the heir was only three years of age.

Being an appeal to the nobile officium of the Court, and not within the provisions either of the Act 20 and 21 Vict. cap. 56, sec. 4, or of the Trusts (Scotland) Act 1867, sec. 16, the petition was presented to the Inner House, and was remitted to the junior Lord Ordinary to inquire and report, Mr A. F. Adam W. S., having first been appointed curator ad litem to the three pupils, the eldest of whom was heir of provision to the estate. The Lord Ordinary ( Lee) remitted to Mr James Salmond, architect and surveyor, Dundee, to examine the subjects proposed to be feued, to inquire into the facts and circumstances set forth

Page: 707↓

in connection with that proposal, and to report. Mr Salmond's report was in these terms:—

“In obedience to the remit contained in the interlocutor, of which a copy is prefixed, the reporter has examined the subjects proposed to be feued, and inquired into the facts and circumstances set forth in the petition, and he begs leave to report as follows:—

The estate of Dudhope is wholly within both the parliamentary and municipal boundaries of the burgh of Dundee. Its extent is 382 acres imperial or thereby, and of this about 80 acres have been already feued, and that principally since the year 1869.

Previous to that date the building extension of the town consisted mainly of erections upon vacant spaces lying nearer to the centre than the estate of Dudhope, but these being almost all now built upon, the lands of Dudhope are at this present time the most centrally situated ground for feuing purposes within the burgh, and are much sought after.

Lochee, a large and prosperous suburb, being now continuously joined by buildings to Dundee proper, is immediately on the west of Dudhope, and as almost all the ground on the east of Dudhope has been taken up and built upon, the natural extension of the town has been rapidly closing-in upon Dudhope on the south, east, and west boundaries thereof… …

The ground has been feued for various purposes—the better sites for villas and self-contained houses, others for shops and workmen's houses, and a few of the sites for public works.

It is my decided opinion that it would be a very great inconvenience to the public of Dundee were this property to be withdrawn from the market for a considerable time as a feuing subject, and also a very great loss for the estate itself.

Excepting some of the southern portions of the lands, which are let at about £4 per acre, the greater portion is of a very inferior description for agricultural purposes, bringing rents of from £1 to £2 per acre, while the rates obtained for the portions feued have varied from £16 to £64 per acre, the rate of feu-duty depending upon the situation. The average rate for some of the better class villa lots nearest to the centre of the town may be stated at from £40 to £50 an acre, while in other less favourable localities a smaller rate is to be expected, varying from the minimum rate of £24 per acre upwards.”

The Lord Ordinary, holding that Mr Salmond's report showed that the case was of the class of which Alexander, June 26, 1857, 19 D. 888, and Lord Clinton, October 30, 1875, 3 R. 62, were illustrations, reported that he was of opinion that power to feu might be granted, and that the minimum rate of feu-duty should be £24 per acre per annum. His Lordship further reported that “it appears to require consideration whether the conditions and provisions should be left to the discretion of the petitioners, or whether a form of feucharter should be adjusted and approved of by the Court. The Lord Ordinary may mention that in the case of Clinton (as appears from the prayer of the petition) the Court was asked to approve of a form of feu-charter or feu-contract.”

At advising—