Scottish Court of Session Decisions

By the 161st section of the General Police Act 1862 (which, as well as section 162, is incorporated with the Greenock Police Act 1877 by section 372 thereof) it is, inter alia, enacted that “the commissioners [of police] may, at a meeting to be held for the purpose, resolve to acquire lands or premises within the burgh for the purpose of widening, enlarging, or otherwise improving any of the streets, and they may resell any parts of such lands or premises which shall not be required for such purposes.” The same section provides for the draining and repairing of property where there is a doubt as to the liability of the owners, and the execution of sanitary improvements in crowded districts.

By the 162d section of the General Police Act 1862 it is, inter alia, enacted that “when any house or building, any part of which projects beyond the regular line of street, or beyond the front of the house or building on either side thereof, has been taken down in order to be altered, or is to be rebuilt, the commissioners may require the same to be set backwards to or towards the line of the street or the line of the adjoining houses or buildings, in such manner as the commissioners may direct for the improvement of such street; provided always that the commissioners shall make full compensation to the owner of such house or building for any damage he thereby sustains.” …

Laurence Bennett Robertson was proprietor, conform to disposition by the trustees of Robert Cowan and Jane Cowan, his wife, executed in 1880, of Nos. 2 and 4 Hamilton Street and 10 Cathcart Square, Greenock. Hamilton Street was about 40 feet wide, and was a street of considerable length, running into Cathcart Square, and the piece of ground on which the pursuer's houses stood was at the corner of Hamilton Street and Cathcart Square, No. 2 being the corner house, bounded on the east by Cathcart Square, to which, as well as to Hamilton Street, it had a frontage. The frontage of 2 and 4 Hamilton Street to Hamilton Street was 63 feet, and the frontage of the property to both street and square was valuable. The tenement forming No. 2 Hamilton Street and 10 Cathcart Square was built on a feu acquired in 1761 by John Campbell from Lord Cathcart, and the other tenement, 4 Hamilton Street, was subsequently built on the remainder of the feu, and on ground adjoining it, acquired by Campbell in 1766, the gable-wall separating 2 and 4 Hamilton Street being the old exterior western wall of 2 Hamilton Street. For many years prior to 1878, between which year and the date of this case they stood empty, the whole of the premises belonging at the date of this action to the pursuer were entered by a single entrance from Hamilton Street, and formed shops below and dwelling-houses above. To the west of 4 Hamilton Street stood No. 6, the old Town-House of Greenock, which was built in 1765 (and therefore before No. 4), and was 4 feet back from the line of No. 4 and of 8, 10, and 12, which were in line with No. 4. In 1878, it having been determined that new municipal buildings should be erected, the town acquired 8, 10, and 12 Hamilton Street that these buildings might be erected on the site of them and of the old Town-House, No. 6, the line of the new buildings to be the same as that of the old Town-House, and therefore 4 feet back from the old line of Nos. 8, 10, and 12 and of No. 4. These houses now mentioned, as well as 14 and 16 Hamilton Street, were in the division of Hamilton Street between Taylor's Close and Cathcart Square.

In 1878 Mrs Jane Robertson (then liferentrix of the property belonging at the date of this action to the pursuer) and the pursuer Laurence Bennett Robertson, her husband, with consent of Cowan's trustees, then the feudal proprietors, presented a petition to the Dean of Guild for authority to erect, instead of the buildings on the ground 2 and 4 Hamillton Street and 10 Cathcart Square, a tenement of shops and offices. The Dean of Guild granted the authority, but pending a reclaiming petition on behalf of the town against his interlocutor the Board of Police served a requisition on Cowan's trustees and on Mr and Mrs Robertson, founding on section 162 of the General Police and Improvements (Scotland) Act 1862 above quoted, requiring them, in virtue of the powers conferred on the Board by the Act, and for the improvement of Hamilton Street, to set backwards the new building about to be erected to the line of No. 6 (the old Town-House), full compensation, to be ascertained in the statutory manner, being provided. The Dean of Guild after considering the reclaiming petition adhered to his former interlocutor, but no steps were taken by the petitioners to take down the buildings, and by the elapse of two years and the death of Mrs Robertson the warrant fell.

In 1881 the pursuer Laurence Bennett Robertson, who had in 1880, as already stated, acquired the subjects, presented to the Dean of Guild a petition for sanction for a building he proposed to erect on the site of the corner house, 2 Hamilton Street and 10 Cathcart Square. He thus proposed to take down the existing house on that site, leaving No. 4 standing. The Board of Police objected, and served a requisition requiring him, as owner “of the house or building numbered 2 and 4 Hamilton Street and 10 Cathcart Square … and which house or building, or a part thereof, is about to be taken down in order to be altered or rebuilt by you,” to set backwards the building to be erected to the line of No. 6. Compensation was also offered as before. The Dean of Guild dismissed the objections, and granted the warrant craved.

In 1881 No. 6 was taken down with a view to the erection of the new buildings on Nos. 6, 8, 10, and 12.

The requisitions by the Board of Police not having been withdrawn, this action against the Board of Police was raised by Robertson in November 1881 for declarator “that the pursuer is entitled, subject to the authority of the Dean of Guild of the burgh of Greenock, to erect a tenement or tenements of shops and offices on the ground bounded on the east by Cathcart Square, Greenock, on the west by the property of the town of Greenock, on the south by Hamilton Street, and on the north by the property of the town of Greenock, which ground is presently the site of the buildings numbers 2 and 4 Hamilton Street, and number 10 Cathcart

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Square, in Greenock; and that the pursuer, in erecting such tenement or other new building upon the said ground, or any part thereof, is not bound to set back such new building to the line of the house or building which was numbered 6 Hamilton Street, and has recently been taken down, or to any extent, but that he is entitled, subject to the authority of the Dean of Guild of the burgh of Greenock, to build with a frontage to Hamilton Street, in the line of the presently existing tenements, numbers 2 and 4 Hamilton Street, in line of street and according to stipulation of superior.” The summons also concluded for declarator that the requisitions of 1878 and 1881 were ultra vires of the defenders, for interdict against their following them forth, and for reduction of them. The pursuer averred that his property was in the old line of the street, and that Nos. 14 and 16 were still in that line.

The defenders averred that the pursuer's buildings were now the only buildings in the section or division of Hamilton Street to which they belonged ( i.e. that from Taylor's Close to Cathcart Square) which projected beyond the line of the old Town-House; that the pursuer's petition of 1881 bearing to refer only to No. 2 was intended to evade their requisition relating to the whole property of 1878; that the buildings were structurally connected so as to be all one house; that it was expedient to widen Hamilton Street, which (particularly at that part) was a very busy street.

They pleaded, inter alia—“(2) The defenders were and are acting within their statutory powers in requiring the proprietors of the subjects now vested in the pursuer to set back their new buildings in manner set forth in the requisitions of 19th July 1878 and 30th April 1881.”

After a proof the Lord Ordinary ( M'Laren) pronounced this interlocutor: —“Finds that the subjects numbers 2 and 4 Hamilton Street, Greenock, constitute one house or building in ‘the sense of the statute founded on, and that the defenders are entitled to require the pursuer to set back the front thereof towards Hamilton Street to the line of the greatest projection of the present municipal buildings, which adjoin the said subjects: Therefore assoilzies the defenders from the conclusions of the action, and decerns, &c.

“ Opinion.—This action of declarator and reduction is brought by the owner of a property in Cathcart Square and Hamilton Street, Greenock, for the purpose of having it declared, in the first place, that he is entitled to rebuild a part of that property without being under obligation to set back the front of his house towards Hamilton Street; and secondly, that two requisitions by the Police Board of Greenock, the defenders, the one dated in 1878 and the other in 1881, are not within the powers of the Police Board, and are not entitled to effect in a question as to the pursuer's right to build. The pursuer's contention is that he is the owner of two separate tenements, one of them being the corner house having a front to Cathcart Square and another front towards Hamilton Street, the other tenement being situated entirely in Hamilton Street, and adjoining the one I first described. Now, it is clearly established by the evidence that the corner tenement or corner part of the pursuer's property was erected as a detached house some time after the middle of the last century, and that what now serves the purpose of a gable or dividing wall, mutual to these two houses, was originally one of the exterior walls of the corner house which is now known as No. 2 Hamilton Street. I think that appears in various ways, because it is not a gable, but was the back wall of the house, and because traces of the harling or rough cast are found upon that site of the wall which enters into No. 4, proving that it was an exterior wall at the time it was put up. But then when the house No. 4 came to be erected advantage was taken of the existing wall for the purpose of a gable to No. 4, and it is also brought out that No. 4 is mainly built upon ground which was part of the feu of No. 2. That ground was insufficient for the erection of the new tenement, and additional ground was obtained from the superior to build the site. But in the main No. 4 was an additional building placed upon ground forming part of the subject No. 2. It is represented, I think correctly, by defenders that No. 4 is really an addition to or excrescence upon No. 2, that it never was at any time an independent house which would stand and be complete in itself without reference to another house, and was never held by a separate title. Then it is proved that at an early period both these houses came to be partly converted into shops, and about twenty years ago I think Mr Cowan, the tenant of one of these shops, added or took on lease another, and at a later period took a third, these shops being connected by internal communication. Until 1878, when the first proceedings were taken in the Dean of Guild Court for rebuilding, the whole of the ground or street floors of No. 4 and No. 2 Hamilton Street were occupied by the establishment of Mr Cowan and his partner, so that if the buildings were not separate in the beginning they did not become more so by the changes that were subsequently made. On the contrary, it appears that as regards the ground floor these two houses or buildings had come to be used as one possession. As regards the upper floors, which were occupied in separate apartments, it is proved that instead of separate stairs being maintained, access was had by one stair situated between the two houses, and with doors opening to both—another step towards the conversion of the two tenements, if I may so call them, into one. Then in 1878, before the first requisition was served, the then owners, Cowan's trustees, proceeded to take Nos. 2 and 4 down, and to rebuild a new block of buildings on the site of these two subjects. But they were stopped by a requisition from the Police Board. In 1881, the subjects having in the meantime been left vacant, the owners proposed to take down one of the subjects, the corner tenement, and to rebuild it, their agent stating to-day with perfect candour that he wished to do so in order to get the full benefit of their frontage, and that his constituents had not yet made up their minds what they would do with the other part of their property, and would not come to a decision upon that until they knew the result of this action. I do not think there is anything to be objected to in that course; it is a question of property, and the pursuers are quite entitled to try their right, and to proceed to build in that way which they think most favourable to the assertion of their right. Now, the requisition is founded upon the 162d

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section of the General Police Act, which has been incorporated with the Police Act of the burgh of Greenock. Under that section it is enacted that when any house or building, any part of which projects beyond the regular line of the street, or beyond the front of the house or building on either side thereof, has been taken down in order to be altered, or is to be rebuilt, then certain powers are given to the commissioners, and the question is whether they are within the hypothesis of the statute—whether this is a case of a house or building projecting beyond the front of the house or building on either side thereof, and about to be altered or rebuilt. The first difficulty that occurs is the interpretation of the word house or building for the purposes of the statute. House is a word of somewhat flexible meaning. It may mean—not to speak of meanings which are clearly inapplicable, such as family—it may mean either a habitation or a structure—an edifice with four walls and a roof, separated from other buildings. In statutes relating to the rights of occupiers a house is generally taken to mean a habitation; for example, in the interpretation of Acts relating to the franchise, a single room is held to be a house if it is the sole residence of the family. But in this case I think the meaning is a building or structure with foundation, walls, and roof, because the statute is here dealing with something that is to be taken down, and that, I think, would not on a fair reading be held to include a house in the more restricted sense, such as a storey or part of a storey. I think also that by the association of the word “building” with “house” I may take it as including a building that is occupied either for residence or for commercial purposes—in short, it means a tenement, using a word we frequently meet with in titles to denote what I am endeavouring to describe. That being so, am I to take it that Nos. 2 and 4 Hamilton Street constitute one tenement or two? I think they must be held to be one, because they, in the first place, have never been held as separate properties; they were one feu from the beginning, and they have continued so until the present day. Then No. 4 never was capable of maintaining a separate existence, because the wall which divides it from No. 2 is not a mutual wall, and if No. 2 were supposed to be taken out of the way, No. 4 would not be a house at all; it would only be the ruin of a house—three walls, and one side open to the air. And then, particularly, I think they are to be identified as one house, because looking to the state of possession we find that they were as much united as any double tenement could possibly be, the ground or shop floor being possessed by one tenant, and the upper portions being possessed by separate tenants, but with access from a common stair, so that if the two were not united from the beginning they certainly came, at the time when this question arose, into the position of being a double tenement in the sense in which that word “tenement” is generally used. Then, although I do not think the pursuers are to be held bound by what they attempted to do unsuccessfully in 1878, I cannot altogether overlook that their original intention was to deal with the subject as one and to rebuild it as one, especially when I am told by the witnesses that the full commercial value of the subject can only be got by pulling it down and rebuilding it as one.

That being so, I have not much difficulty in applying the statute. It is a case of a building which undoubtedly projects in front of the house or building on one of the sides thereof, and is to be altered or rebuilt. It was maintained by Mr Dickson that ‘either side’ means both sides, and that unless there are houses on both sides which have a different frontage the statute cannot be applied. I do not think that is a fair and ordinary meaning of the word ‘either,’ and at any-rate in this particular case, where there can only be a house upon one side, I think it would be defeating the plain intention of the statute to hold it to be inapplicable, because although the house immediately adjoining this on the left has a different line of frontage, there is no frontage upon the other side, that other side being open street. I think that is not a construction of the statute which could possibly be applied to the case of a corner house where there is only one adjoining house. Where there is only one adjoining house I think the statute is satisfied if that house have a different line of frontage, and there is a requisition to set back according to that line. There seems to be a doubt whether the requisition of 1881 is still subsisting, because it was given with reference to proceedings in the Dean of Guild Court, and it appears that the period within which the Dean of Guild's warrant is operative has now expired. But as I am only dealing with the conclusions of the action, and the opinion that I have come to would lead to absolvitor from these conclusions, I am not embarrassed by that difficulty. The only other question is, How far are the Commissioners entitled to set the building back? What is the line to which they are entitled to require that the building shall be set back? I think it is the line in which the adjoining building intersects the street, that is, the base of the pillars. But as there is no declarator at the instance of the Police Board I cannot give any operative finding upon that subject.

“The judgment is absolvitor with expenses.”

The pursuer reclaimed.

Argued for him—(1) On the facts—The houses formed separate tenements. In that case the statute could only be applicable to No. 2 Hamilton Street, and was consequently inoperative. Even assuming that the property formed one and the same tenement, only one part was being taken down, and that part the least important. (2) On the statute—The statute demanded as a condition of its application that “either” mean “both.” (3) There was a speciality as regards corner tenements. (4) The Commissioners ought to have proceeded under sec. 161, not under sec. 162. (5) The pursuer's buildings were in the line of Hamilton Street, taken as a whole, and the defenders were not entitled to make a single division of it the test. (6) In any view, the Commissioners could not interfere till the whole building was taken down. They acted ultra vires.

Authorities —(3) Burnet v. Bush, Nov. 13, 1849, 12 D. 44; Downie v. Grant, Nov. 8, 1872, 11 Macph. 51; Fraser v. Kennedy, Jan. 9, 1877, 4 R. 266. (6) Per Lord Selborne, Police Commissioners of Fort-William v. Kennedy, July 8, 1878, 16 S.L.R. 765.

At advising—