Scottish Court of Session Decisions

The houses forming Buckingham Terrace, Hillhead, Glasgow, were built in 1852, and the proprietor of the ground, Andrew Gibson Corbett, disponed the several steadings on which the houses were built to the various purchasers by contracts of ground-annual, imposing on them all a similar set of restrictions. The conditions as to maintaining the front tenements and as to occupying the back-ground behind each of the steadings in the terrace were thus set forth in one of the contracts of ground annual by which three of the steadings were conveyed—“That the said tenements shall in all time coming be used and occupied solely as self-contained dwelling-houses, and for no other use or purpose whatever, and if at any time any of the said houses shall require to be rebuilt, it shall be so rebuilt of the same plan and elevation, external materials, and style of workmanship, and upon the same foundation as at present, as a component part of the said terrace, that the walls enclosing the back-ground of each of the said several steadings shall not exceed 10 feet; but it shall be competent to the said second party [disponee] and his foresaids to erect on said back-ground such offices as may be necessary for additional convenience, but such offices shall not on any account be more than 16 feet in height over the side walls, and shall not be occupied as dwelling-houses, but be used allenarly as a stable, washing-house, or other offices, by the proprietors or tenants for the time being of said respective tenements.” These conditions and restrictions were declared to be real liens and burdens on the several steadings respectively in favour of the disponer and his successors as proprietors of the remaining steadings in the said terrace, and the said remaining steadings themselves; and further, the disponer undertook that when he should come to sell or dispose of the remaining lots or steadings in the terrace he should convey each of them subject to the same conditions, and the conditions were further created real burdens on

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the remaining steadings in favour of the steadings disponed by said contract of ground-annual.

This was a petition for lining presented to the Magistrates of the burgh of Hillhead. The petitioner Mrs Murison, who was proprietor of one of the three steadings just mentioned, craved leave to erect on the ground behind her house a building consisting of a billiard-room, a lavatory, a room communicating with the billiard-room, designated in the plan by the name of a “snuggery,” and three other rooms, two of which were described as stores.

The petition was opposed by the proprietors of the other two steadings, and by other proprietors in Buckingham Terrace. They averred—“The petitioner proposes to cover over almost the entire area of the back area or vacant ground forming a washing-green behind her house. The proposed buildings are shown on the plans to be 22 feet in height, measuring from the level of the lane, which is some 5 or 6 feet higher in level than the natural level of the ground at the back walls of the tenement. The proposed buildings on the back area are not of the class contemplated in the title, and any others are prohibited which are not included in the terms ‘such offices as may be necessary for additional convenience,’ or the terms, ‘a stable, washing-house, or other offices.’ The conditions as to buildings and the use of the back-ground are declared real liens and burdens on the ground in favour of the original proprietor and his successors, as proprietors of the respective steadings. If the petitioner erected the proposed billiard-room, and what she is pleased to call a ‘snuggery,’ the light and ventilation of the properties immediately adjacent would be affected, and a violation of the conditions of the title on the part of one would entitle all the proprietors to cover over their back areas with buildings, which would be injurious to the amenity and health of the houses and their inmates.”

They pleaded that the proposed buildings not being of the nature of offices such as were allowed by the conditions of the title, decree ought to be refused.

The Magistrates pronounced this interlocutor—“( First) That the respondents have a sufficient title to enforce the restrictions regarding the height and character of the buildings to be erected on the petitioner's property contained in the title-deeds to the same; and ( second) That the said restrictions forbid the erection of buildings of the description shown in the petition and relative plans—Therefore refuse the prayer of the petition.

“ Note.—[ After stating the facts]—As regards the title of the respondents to oppose, it appears to the Magistrates that the terms of the contract of ground-annual above quoted are sufficient to confer such a title on them. Besides the obvious interest which the proprietors of neighbouring houses have in the preservation of free spaces immediately adjoining their houses, the contracts of ground-annual expressly provide that the restrictions are imposed not merely in favour of the proprietor of the whole ground, but of the remaining steadings and the successive proprietors thereof, thus meeting the requirements laid down by the House of Lords in the case of Hislop v. Macritchie's Trustees, 8 R. 95. The question of whether the restrictions in the title-deeds prevent the erection of the buildings for which authority is craved is one of greater difficulty, and it is not without some hesitation that the Magistrates have arrived at the result they have come to.

The hesitation has not arisen from doubt as to the meaning of the framers of the contract of ground-annual, but from a doubt as to whether they have been sufficiently accurate in the language which they have used to express their meaning, so as to satisfy the conditions of the law which require that clauses imposing restrictions should be strictly construed. It may with some apparent force be urged that the clause above quoted simply grants permission to erect on the back-ground buildings of a certain limited description, and that though it may have been intended that these should be the only kind of buildings permitted, yet the disponer of the ground has not been sufficiently careful to express his meaning by a clear prohibition of buildings of other descriptions. While, however, fully considering this view of the matter, the Magistrates have come to the conclusion that reading the contracts of ground-annual as a whole, the restrictions intended have been validly imposed. There is in the first place an obligation to build according to a common plan; then an absolute prohibition against walls enclosing the back-ground of a greater height than ten feet. The original plans of the houses have not been put in process, but the description of the ground in the title-deeds sufficiently indicates the authorised depth of the houses and of the back-ground, as being on the west boundary of the petitioner's feu 124 feet, and 56 feet 6 1 2 inches respectively, and the measurements of the back-ground thus given substantially agree with the plans produced by the petitioner. These restrictive clauses are followed by an exception in favour of offices which may be erected on the back-ground of a height of 16 feet to the top of the walls, and which are not to be used as dwelling-houses, but ‘allenarly as a stable, washing-house, or other offices.’ The building in question cannot be held to be included in any of the descriptions of buildings given in the words quoted, but is really an extension of the dwelling-house, so as to cover the whole area of the back-ground, and having the effect of making the enclosing walls of the back-ground more than ten feet high. The fact of the largest room in the addition being destined for a billiard-room does not appear to affect the case. Such a room is very commonly part of a dwelling-house of the size of the petitioner's, and were it permitted, there does not seem to be any principle on which apartments for sitting, dining, or sleeping might not equally be sanctioned. In the opinion of the Magistrates, the terms of the title-deeds tie the petitioner down to the usual outside offices, the character of which is indicated by the words above quoted.”

The petitioner appealed, and argued that the proposed building was “an office” of the house, and not of such a nature as to constitute a violation of the feu-contract; the respondents had no interest to object. The petitioner did not propose to make the building of greater height than 16 feet over the side walls, and would come under any condition to that effect.

At advising—