Scottish Court of Session Decisions

A feu-contract was entered into in the year 1859 between John Ross junior and Thomas Lucas Paterson, proprietors in trust for behoof of themselves and of the heirs of the deceased Robert Paterson, of the lands of Dowanhill, Glasgow, on the first part, and Robert Wylie on the second part, whereby the parties of the first part feued to Wylie a plot of ground numbered eight on the plan of a projected street called Crown Circus. Inter alia, Wylie bound himself, and his heirs, assignees, and disponees whomsoever, within a certain period from the date of his entry to the subjects, to erect and finish on the plot of ground feued a “self-contained lodging or dwelling-house, which shall be three square storeys above the surface of the ground, but not more, in height, with a half sunk storey, and shall be of a superior class,” &c. The first parties as superiors bound themselves to insert in subsequent feu-contracts similar clauses and conditions, and similar declarations and provisions to those in Wylie's contract. The other plots of ground were thereafter disposed of, plot number 2 being feued to Paterson as an individual, and the provision above quoted was duly inserted in the titles of each, with the exception of number 1 and number 12, which houses were built at right angles to and had no frontage to the circus. Number 2 was the corner house of the circus. That house and the other houses, numbers 3 to 11 inclusive, were all built of three square storeys with half a sunk storey, in terms of the provision to that effect, and on half the thickness of the front wall was built an ornamental stone balustrade.

At various times between 1861, when the majority of these houses were built, and 1880, when the operations complained of in the present case were begun, some of the houses in the circus were slightly altered by the forming of attics in the roofs of certain houses originally built without attics, and the insertion of dormer windows instead of skylights in others which had been built with attics. In particular, No. 3 had its roof raised and an addition made with the effect of causing that house to have a square storey at the back. This alteration was not objected to by any of the feuars. In 1880 Mr Paterson began to alter No. 2 by raising the front wall within the ornamental balustrade 5 1 2 feet above its previous height, with the view of adding large and commodious rooms on the attic storey. He removed so much of the balustrades as would interfere with the windows, which he formed partly in the front wall as thus raised. The effect of this alteration was to make the front walls of the attics beneath the coomb ceiling 6 feet in height instead of as formerly 3 feet 4 inches. At the back the attic storey was made by the alterations completely square, as had been previously done with No. 3 as above mentioned. The proprietors of Nos. 4, 5, 7, 9 and 10 objected to those alterations as injurious to the uniformity and amenity of the circus, and as practically consisting in the addition of a fourth square storey, or, at all events, as making the house more than three square storeys in height with a half sunk storey, in contravention of the titles, and presented this petition to the Sheriff for interdict against such alterations as would make the house “a house of four square storeys, or four square storeys above the sunk or half storey, or one of other construction or elevation than ‘of three square storeys above the surface of the ground, but not more, in height, with a half sunk storey.’” They also craved to have the defenders ordained “to restore the said house to the same condition and elevation it was in before his recent alterations, and to make the house one ‘of three square storeys above the surface of the ground, but not more, in height, with a half sunk storey.’”

The defender denied that his alterations had the effect alleged, or that they were in contravention of the titles. Further, he averred that the restrictions in the titles had never been rigidly observed, and that alterations of at least equal importance had been made by several of the other proprietors without objection.

He pleaded—“(1) The alterations made by the defender to the house in question being in no way a violation of the title thereto, or of the rights of the pursuers, the defender is entitled to absolvitor, with expenses. (3) As the alterations made by the defender do not affect the houses of the pursuers, but enrich and improve the appearance of the circus, the pursuers have no interest to insist on the conclusions of the petition.”

After a proof the Sheriff-Substitute ( Guthrie) pronounced this interlocutor;—“Finds that the pursuers and defender are proprietors of houses in Crown Circus, Dowanhill, deriving their title from the trustees of the late Robert Paterson, merchant in Glasgow: Finds that it is a condition in the titles of all the feuars in Crown Circus that each feuar should build, erect, and finish on the plot of ground ‘a self-contained lodging or dwelling-house, which should be three square storeys above the surface of the ground, but not more, in height, with a half sunk storey,’ &c, and that the pursuers have a title to insist in the conclusions of this action: Finds that the defender, in the month of July last, began, and has since completed, certain alterations upon the roof of the house No. 2 Crown Circus, of which he is proprietor, whereby the height of said house is raised 5 1 2 feet above three square storeys in front, and to a greater excess behind, in violation of the said condition: Finds that some years ago the house No. 3 Crown Circus, immediately adjoining the defender's said house, was raised behind so as to make the attic storey partly or altogether a square storey in the back, and that the pursuers did not

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object to this alteration: Finds that they are thus barred from objecting to the defender's raising the height of the back wall of his house, so far as that has been done: Quoad ultra, finds that the defender has failed to establish facts inferring abandonment by the pursuers of their right to insist on the fulfilment of the said feuing condition: Therefore, and to that extent, repels the defences, and ordains the defender, within four months from this date, to restore the house No. 2 Crown Circus, so far as the front is concerned, as craved in the second part of the prayer of the petition, and decerns: Finds the pursuers entitled to expenses from defender,” &c.

He added this note:—“It is not seriously disputed that the titles of the feuars in Crown Circus are such as to give each of them a right to enforce the condition as to the height of their houses. They are a body of disponees from a common author, who was bound to insert, and did insert, in all their titles the condition in question.

“The first position maintained by the defender is, that he has not really infringed the condition as to the height of the houses, and that if he has, he has done so to so slight an extent that the pursuers have no interest to object. I do not think that the defender would contend that if he were to put two additional storeys on his house the pursuers would have no interest to object to that, and therefore I state his argument in this qualified manner. It appears quite plain that none of the previous cases in which the construction of restrictions of this kind has turned upon the definition of square storeys and the utilisation of roof space warrant the alteration which the defender has made. M'Ewan v. Shaw Stewart, March 10, 1880, 7 R. 682, is the latest, and perhaps the strongest of these cases, but it goes no further than to allow a proprietor restricted to a certain number of square storeys to use the roof space in his tenement by opening windows in the roof, whether lying lights or storm windows, and by making an access by extending an existing outside stair. Here the erection of an upright outside wall, although it is within an ornamental stone balustrade, and is not so thick as the front wall, upon the top of which it is placed, can only be regarded as an evasion of the obligation not to build above three square storeys. That obligation in its natural meaning, or, at all events, according to the meaning the parties have put on it, by the manner in which the houses have been built, implies that there shall be a roof of the ordinary kind rising from the wall-head above the joists of the third square storey. What the defender has done is not perhaps to make an additional square storey, but to increase the square height of his house 5 1 2 feet in front beyond what it was before, and beyond the ‘three square storeys in height.’ The case of Campbell v. Allan, 18th December 1855, 18 D. 267, is a clear authority in support of this view.

“It is said that the pursuers have no substantial interest to complain. It humbly seems to me that in the argument—at least in some of the cases in which parties have been fighting against restrictions of this class—too much has been made of this plea of want of interest. It is not always possible to define very accurately what the interest of an adjoining urban proprietor to prevent operations by his neighbours is or may become, and notwithstanding the presumption in favour of liberty, I would almost be inclined to say that where, as here, the obligation is quite distinct, and the connection by vicinity and otherwise very close, it lies upon the proprietor innovating to instruct the objectors' want of interest by very clear evidence. It is enough, however, to refer on this subject to the observation of Lord Kinloch in Alexander v. Stobo, 1871, 9 Macph. 599–611, that the proprietors ‘are all interested in preserving the uniformity of the street, and preventing any unseemly contrast in the style of architecture;’ and to the decision in Beattie v. Ure, 1876, 3 R. 634; and especially in Stewart v. Bunten, 1878, 5 R. 1108. There Lord Gifford says—‘The law sustains it as a sufficient interest that a proprietor in a row of houses wishes them to be maintained so as to show a uniform or symmetrical front or elevation; and if he has aptly and sufficiently stipulated for this in all the titles, it will be given him, though his only interest may be an æsthetical one.’

Clearly there is nothing like abandonment of the right to insist on adherence to the benefit stipulated for so far as the front elevation is concerned. On the nature of acquiescence or silence inferring such abandonment, and how far its effect extends, reference may be made to the case of Stewart v. Bunten already cited, as well as to Gould v. M'Corquodale, 1869, 8 Macph. 165, and other cases mentioned at the debate.”

On appeal the Sheriff adhered.

The defender appealed to the Court of Session, and argued—This was a restriction on the use of property, and to be strictly construed. The restriction was meant to prevent there being a fourth square storey, which this was not, except indeed at the back, and that the pursuers were barred from objecting to. This was a fair use of the roof-space, as in Ewan's case, quoted by the Sheriff-Substitute. At all events, the judgment should be recalled so far as regarded that part of the house No. 2 which had its frontage in another street from the circus.

Authorities—Cases quoted by the Sheriff-Substitute.

The Court made avizandum.

At advising—