Scottish Court of Session Decisions

By disposition dated in September 1878, James Thomson Russell, hotel-keeper, Dundee, acquired from Macnaughton's trustees, inter alia, the following subjects in Dundee:—“Second, All and Whole that piece of ground … measuring 10 poles and 18 1 2 yards imperial measure or thereby, together with the buildings and erections thereon, consisting of a bakehouse lying immediately to the west of Malthouse Close, sometime occupied by Peter Anderson, baker; a billiard-room immediately to the south of said bakehouse, in connection with and communicating with the Royal Hotel” (the property of the said J. T. Russell) “by an entrance over the said Malthouse Close; and the tenement of three stories situated to the south of said billiard-room, occupied as dwelling-houses by, now or lately, James Thomson and others, tenants; which subjects are bounded as follows, viz.:—… And which subjects hereby disponed are part and portion of All and Whole the ground storey of All and Whole that tenement of land built by Alexander Robertson, merchant, and which was formerly old walls, together with the yard and bakehouse built on the said yard;… but under the declaration, so far as applicable to the said subjects secondly hereby disponed, that the said James Thomson Russell and his heirs and assignees shall not be allowed to erect any buildings on any part of the said yard so as in any way to prejudice the lights of the other storeys of the said fore-tenement, but to use the same for a garden only.”…

Russell brought this petition before the Dean of Guild of the burgh of Dundee for warrant and authority to take down two buildings, consisting of a laundry, wash-house, stock-room, and billiard-room, all standing on the said subjects so disponed to him, and on their being taken down, to erect, partly on their site and partly extending into the yard also disponed to him, buildings consisting of a laundry, washing-house, stockrooms, billiard-room, and other accommodation in connection with his hotel premises. Service of the petition was craved upon the various proprietors of subjects conterminous with the petitioner's said property. Answers were lodged for two of these, viz., Mrs Elizabeth Cowpar and Mr Crichton, who were proprietors respectively of the third and second storeys from the ground of the said tenement of land built by Alexander Robertson, of the ground storey of which the subjects disponed to Russell, the petitioner, formed part, as above narrated.

Both the petitioner and the respondents derived their title to their respective subjects from a common author, viz., the town of Dundee. In the disposition, granted in the year 1779 by the said town to William Henderson, baker in Dundee, the petitioner's predecessor, the following clause occurred:—“Declaring alwise, as it is hereby expressly provided and declared, and appointed to be engrossed in the infeftment to follow hereupon” (which infeftment duly contained the declaration), “that the said William Henderson, his heirs and assignees, shall not be allowed to erect any buildings on any part of the said yard so as in any way to prejudice the lights of the other storeys of the said tenement, but to use the same for a garden only.” And the disposition granted on the same day by the town to John Small, the objector Crichton's predecessor, contained this corresponding declaration:—“Declaring alwise, as it is hereby expressly provided and declared, that William Henderson, baker in Dundee, his heirs and assignees, to whom the lower storey of the said tenement, the yeard to the southward thereof, and bakehouse therein, is this day disponed, shall not be allowed to erect any buildings on any part of the said yeard, so as in any way to prejudice the lights of the subject hereby disponed or the other storeys, but to use the same for a garden only.”

The respondents averred—“(Stat. 3) The said yard is held by the petitioner or other proprietor thereof under, and their right and title to the same is burdened with, the condition and servitude that the said petitioner or other proprietor shall not be allowed or entitled to erect any buildings on any part of the said yard so as in any way to prejudice the lights of the subjects before prescribed belonging to the respondents, or of the other storeys of the tenement, and that the said yard shall be used for a garden only. (Stat. 4) The said condition and servitude so imposed on the said yard and proprietors thereof is conceived in favour of, and conferred as a right upon, inter alia, the subjects before described, belonging to the respondents, and the respondents, as proprietors of the said subjects, have a right and title to insist upon said condition and servitude being preserved and maintained, and to prevent any act or acts which may be in breach of, or may interfere or infringe upon, the same. (Stat. 5) The operations proposed by the petitioner will be prejudicial to the rights of the respondents' said subjects, and be an encroachment on the said yard and its use as a garden only, and said operations will also be in direct breach of, and an interference with, and an infringement upon said condition and servitude, and the said rights of the respondents as proprietors of the dominant tenement, which rights are of great value.”

The petitioner stated that his proposed operations would not prejudice the lights of the respondents' tenements, and that buildings already existed, and had for more than forty years existed, on the so-called garden ground. It appeared that the proposed new buildings would extend further into the said yard than the line of the existing buildings for a space of about 27 feet in length and 10 inches in breadth, but that the front line of the new buildings would not project so far as to be in any degree ex adverso of the respondents' property.

The Dean of Guild, after hearing parties, and having visited the premises, pronounced an interlocutor repelling the objections, and granting warrant as craved by the petitioner.

He added the following note:— [After narrating the state of titles of parties, &c.]—“The original constitution and validity of the above servitudes, which have been made real and appear in the titles of both the dominant and servient tenements, if these respondents have sufficient interest to enforce them, cannot well be disputed. But the petitioner contended that the servitudes did not apply to the ‘yard’ or ground on parts of which he intended building, or at all events that the servitudes having already been infringed

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by the erection of certain buildings on the yard and the raising of the original bakehouse, they had thereby been wholly extinguished.

Upon the first of these points, viz., the identity of the yard, there seems to be no reasonable doubt….

On the remaining point, it was manifest at the visitation, from the appearance and age of the petitioner's buildings, that a portion of one of them, viz., the original bakehouse, had been raised, and that other two buildings to the north thereof had been erected on the yard since the constitution of the servitudes in 1779; but assuming that this had been done with the respondents' knowledge or by acquiescence, which was disputed—and the fact has not been investigated—it would rather appear that while this might perhaps be a sufficient answer to any demand for removal of the alleged encroachments, it is no good reason why a further infringement of the servitudes should be permitted, nor does it appear necessarily to lead to the result contended for, viz., that by a partial infringement the servitudes have now been wholly extinguished.

But however this may be, the main questions involved appear rather to be, what is the true or correct interpretation and effect of the restrictions, and whether respondents have such an interest as to be entitled to enforce them?

That the bakehouse was situated somewhere on the restricted yard is clear enough from the description in the titles. It is there explicitly referred to as built ‘on the yard,’ and it is not open to doubt that what is now an old three-storey tenement at the southern extremity of the petitioner's subjects is the original bakehouse, which has at some remote period been heightened.

The prohibition itself is not unqualified. It does not in terms absolutely prohibit ‘all buildings,’ but is merely directed against erecting any building on any part of the yard ‘so as to prejudice the lights’ of the second and other storeys of the dominant tenement, although in addition it is declared that the yard is to be ‘used for a garden only.’

Now, the object and intention of the restriction thus apparently is the preservation of the lights of the second and other storeys of the tenement, and to this extent and effect at least the respondents, as owners of these storeys, have a clear and undoubted interest.

Dealing, therefore, with the question of light alone in the first instance, the Dean, from inspection of the plans in process and perusal of the record, as well as by judicial visitation, and from his own professional knowledge, has satisfied himself that the proposed buildings, which are not placed ex adverso of the storeys of the dominant tenement, if sanctioned, will not appreciably injure or in any way prejudice the lights of these storeys.

But there still falls to be noticed the concluding portion of the restriction, viz., the provision that the disponee shall ‘use the same’ (meaning the yard) ‘for a garden only;’ and in the view which the Dean feels himself constrained to take of the authorities it is imperative on the respondents to show, which they have not done, that they have interest to enforce the restriction, or that such restricted ‘use’ would be of advantage to the dominant tenement. The law is thus stated by Erskine, b. 2, t. 9, sec. 33:—‘As all servitudes are restraints on property, they are stricti juris, and so not to be inferred by implication. Neither does the law give them countenance unless they have some tendency to promote the advantage of the dominant tenement.’ In Heriot's Hospital v. Ferguson, 1773, M. 12, 817, affd. 3 Paton 674, the ground was allowed to be covered with buildings notwithstanding a provision in the feuright in these terms—‘That it shall not be leisom to dig for stones, coal, sand, or any other thing within the said ground, nor to use the same in any other way than by the ordinary labour of plough or spade.’ In Dennistoun v. Thomson, 22d November 1872, 11 Macph. 121, Lord Ardmillan, who delivered the judgment of the Court, observed that restrictions on the use of property cannot be easily implied nor enforced without clear and strong reasons, nor without a legitimate interest to sustain the plea for restriction.’ Reference may also be made to the prior cases of Frame v. Cameron, 21st December 1864; Gould, 24th November 1869, 8 Macph. 165; and M'Gibbon, 19th January 1871, 9 Macph. 423, as illustrating the point under consideration.

Applying the law as thus laid down, the Dean, in the whole circumstances of the case, is of opinion that the petitioner is entitled to prevail, and he has accordingly granted the warrant now sought.”…

The respondents appealed to the Court of Session, and argued—The proposed operations would be injurious to them, both as affecting their light, and as increasing the extent of building in the neighbourhood. This gave them an interest sufficient to entitle them to object— Alexander v. Stobo, March 3, 1871, 9 Macph. 599; Earl of Zetland v. Hislop, March 18, 1881, 8 R. 675; Magistrates of Edinburgh v. Macfarlane, Dec. 2, 1857, 20 D. 156. The clause of restriction was absolute in its terms, and the proposed buildings would be clearly in violation of its intention. In any view, the Dean of Guild was not in a position to decide the case without further inquiry, and before the petition could be granted a remit should be made to a man of skill to examine and report— Boswell v. Magistrates of Edinburgh, July 19, 1881, 8 R. 986.

The petitioner replied—The interest of the respondents to object was merely nominal, as the proposed buildings would not injuriously affect their light, nor appreciably encroach on the open ground. The Dean of Guild's professional opinion on this matter was of great weight. And on a construction of the titles they could be fairly read as in favour of the petitioner's contention, and the Court would never, unless of necessity, construe a title so as to restrict a proprietor's use and enjoyment of his own property— Heriot's Hospital v. Ferguson, 1773, M. 12,817, 3 Paton's App. 674 (and other cases referred to by Dean of Guild). In point of fact the ground in question had not been used as “a garden” within the memory of man.

At advising—