Scottish Court of Session Decisions

Messrs J. & W. Elliot, builders, Edinburgh, disponed to Mrs Dudgeon the southmost shop and dwelling-house on the street and sunk flats of a tenement situated at the corner of Bellevue Place and Claremont Terrace, Edinburgh. This tenement, of which Mrs Dudgeon's property formed part, was built upon ground contained in a feu-charter in favour of John Elliot and William Elliot, and the survivor of them, as trustees for their firm of J. & W. Elliot, and of their or the survivor's heirs and assignees whomsoever, granted by the trustees of Donaldson's Hospital, whereby it was stipulated “that the east and south gables of the foresaid tenement were to be built so as to suit as mutual gables for said tenement and the tenement to be erected on the adjoining ground to the east and south thereof, and that the said gables should be built, one-half on the ground disponed, and the other half on the adjoining ground,” of which the said trustees for Donaldson's Hospital were originally proprietors. The feu-charter also stipulated that “the said John Elliot and William Elliot, as trustees foresaid, or their foresaids, who build the said mutual gables and division wall, shall be entitled to recover from the adjoining feuars half the cost of erection of the said mutual gables or division walls, as the same shall be ascertained by a surveyor mutually chosen by the feuars concerned.”

The defender Mr John Elliot junior began to build on the adjoining piece of ground, which he had acquired from the trustees of Donaldson's Hospital, taking advantage of the said mutual gable in the erection of his tenement. The pursuer Mrs Dudgeon claimed, in terms of the feu-charter, her share of the cost of erection of the said mutual gable. The defender refused payment, and maintained that the right to recover from the adjoining feuars half of the cost was limited by the feu-charter to the builders of said gables, and that the whole of the said tenement, including said gables, was erected by Messrs J. & W. Elliot. This firm was dissolved in 1879, and the business carried on by Mr John Elliot, on whose sequestrated estates a trustee was appointed in March 1880.

The defender averred that the trustee on Mr John Elliot's estate had claimed from him the cost of erection of the said, gables, and that he had arranged with him the price to be paid when the present claim by the pursuer was raised.

The Lord Ordinary remitted to Mr Watherston, valuator, to examine the mutual gable and division walls in dispute, and report his opinion on the value thereof, and thereafter decerned against the defender for the sum of £35, 4s., being the sum which the reporter held to be the value of the proportion of the gable and division walls effeiring to the defender.

The defender reclaimed, and argued—That a demand for the whole cost exigible from him in respect of his share of the said gable had been made by the trustee on Mr John Elliot's sequestrated estate. In view of this fact it was unjust to hold him responsible to Mrs Dudgeon on the same account. He asked the Court to pronounce an interlocutor which would relieve him of the responsibility of double payment in respect of this portion.