Scottish Court of Session Decisions

By feu-contract dated 8th September 1803, Samuel Gilmore, ropemaker in Edinburgh, disponed to James Balvaird and his spouse, in joint fee and liferent, for her liferent only, a piece of garden ground at the south side of Gilmore Street, Edinburgh. The deed contained the following mutual provisions:—“That it shall not be in the power of the said James Balvaird or his foresaids to erect any house, wall, or building of any kind upon the garden ground above disponed higher than a wall of seven and a half feet; and the said Samuel Gilmore hereby binds and obliges himself, his heirs and successors whomsoever, in like manner they shall erect no house, wall, or building of any kind upon that part of his ground which lies between the garden ground hereby conveyed and the property belonging to the Governors of James Gillespie's Hospital [higher] than ten feet on the north wall of that ground, over which ground the subjects above disponed are hereby declared to have perpetual servitude to the effect above written.” By a feu-contract in 1802 Gilmore disponed to Miss M. and Miss H. Scott another piece of ground adjoining that last-mentioned. There were similar mutual restrictions as to the height of buildings which might he erected by them, and by Mr Gilmore on the piece of ground lying between theirs and Gillespie's Hospital. By another contract of feu the Misses Scott acquired another piece of Gilmore's adjoining ground under similar mutual restrictions.

Peter Simpson, S.S.C., the pursuer of this action, acquired in 1875 these three pieces of ground feued by Gilmour. W. G. Mason, the defender, was proprietor of the ground between these pieces of ground and the Gillespie's Hospital ground. The other defender M'Rae was his tenant.

Shortly after Mr Simpson acquired the subjects he entered into negotiations with Mason with the view of removing, if possible, the restrictions existing in the feu-contract, and referred to above, and thereby rendering the lands more valuable for the purpose of building. The proposal was that the old restriction should be abandoned, and mutual new servitudes created against erecting any buildings on the ground except self-contained dwelling-houses, or dwelling—houses not inferior to those in the neighbourhood. The proposal made was embodied in a draft-letter which was to be granted by Mr Mason, and which was prepared by his agent Mr Romanes, S.S.C., and forwarded to Mr Simpson for revisal. Mr Simpson, by letter to Mr Romanes, dated 18th February 1876, agreed to the terms of said letter, and undertook to grant one in similar terms to Mr Mason. The draft-letter was in these terms:—“ Edinburgh, 7 Nelson Street, February 1876.——Dear Sir, — With reference to the mutual servitudes and restrictions over the pieces of ground at Gilmore Place and Gillespie Street, and to the south thereof, belonging to you and Mr Mason, or possessed by either of you, or to which either of you may acquire right, against building thereon beyond a certain limited height, I have to say, on the part of Mr Mason, that he is quite willing that these servitudes and restrictions should be held as mutually abandoned and departed from; and on that footing Mr Mason has no objections to the buildings which you propose to erect on your ground; it being understood that any building to be put by either party or their successors upon any part of the grounds over which the servitudes and restrictions were created are to be self-contained dwelling-houses, or dwelling-houses of a description similar or not inferior to those in the neighbourhood.

The execution of the proposed letter of agreement was delayed pending a dispute between Mason and the superior, but the pursuer, as he averred in this notion, proceeded to obtain from the superior, in consideration of an increased feu-duty, a discharge of the original servitude, and erected certain self-contained dwelling-houses on the ground belonging to him at a cost of upwards of £9000. Mason's subjects were at that time held for him by trustees till he should attain 25 years of age, which he did in 1877, but in 1876 his trustees obtained a feu-disposition from the superior, in which the superior's interest as superior in the servitude was discharged.

Mason, by lease dated 8th and 9th May 1878, let to Duncan M'Rae, joiner and builder, the lands belonging to him. The lease contained a clause ‘that the tenant shall not erect any buildings on the ground to the west of a line running south, in continuation of the line in front of the present houses in Gillespie Street, that would be in violation of the servitudes affecting the ground referred to, or parts thereof: And further, it is hereby stipulated and agreed that the said Duncan M'Rae and his foresaids shall be bound, whenever required, to remove any such buildings as may have already been, or may at any time hereafter be, erected by him in contravention of the above-written stipulation and prohibition, or in violation of the servitudes above referred to: And it is also hereby, as it was by the said missives of lease, stipulated and agreed, that the garden ground adjoining the said house No. 6 Gillespie Street, and also the separate garden before referred to, as the same existed at the date of the foresaid missives of lease, shall continue to be used and properly cultivated as garden ground during the whole currency of this lease; and the tenant shall not be entitled to use the same for any other purpose.”

On 29th March 1883 M'Rae presented a petition in Mason's name to the Dean of Guild Court, and a warrant was granted to build on the ground let to him a stable of sixteen stalls and two loose-boxes, a smithy, and a shed at the end. The petition was not served on Simpson, and the fact that warrant for the buildings had been granted was not brought to his knowledge till some time later. He at once called upon Mason to remove the buildings, and to grant a document containing a formal discharge

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of the former servitudes, and a constitution of the new one proposed in the draft-letter, that the houses to be erected should be self-contained dwelling-houses of a description not inferior to those in the neighbourhood. This was refused, on the ground that as the servitudes had not been given up at the time of M'Rae's lease, it had been stipulated therein that he should not erect anything in contravention of them, and that he ought to be ordained to remove anything he had erected in contravention of them.

Simpson accordingly raised the present action against Mason, and also against M'Rae, in which he sought to have it found and declared (1) that the pieces of ground belonging to him were free of the old servitudes restricting building above a specified limited height, and were burdened instead with a servitude restraining the building of dwelling-houses not self-contained or which were inferior to those in the neighbourhood; (2) that the defender Mason's subjects were in like manner disburdened of the old and burdened with the new servitude just mentioned; (3) Further, that the stables and shed complained of by him were a contravention of the pursuer's servitude over the ground, and that the defenders were bound to demolish and remove the same. There were alternative conclusions on the footing that the old servitudes still subsisted, and that the defenders were not entitled to erect buildings contravening them.

The pursuer averred that he would not have erected the dwelling-houses at the cost of £9000 but on the footing that the old servitudes were to be abandoned and new mutual servitudes constituted to preserve the amenity of the ground. He also alleged that the defender Mason knew he was proceeding to build in reliance on the foresaid agreement, and he allowed him to build the dwelling-houses referred to without making any objections. He further averred that the brick stables and byre erected by the defender M'Rae were in contravention of the servitude, and were causing him great loss, as the value of his houses was deteriorated, and the amenity of the ground destroyed for building purposes.

The defender Mason averred that inl876the pursuer made overtures both to his own superiors and to Mr Romanes, as agent for the proprietor of the subjects now belonging to the defender, with a view of having the servitudes discharged, but averred that no agreement was ever concluded on the matter; he admitted that he took no objection to Simpson erecting the buildings above referred to. He further alleged that his tenant M'Rae presented the petition to the Dean of Guild Court without his consent or knowledge, and that the stables thereafter erected were put up without his authority, and he admitted that they were in contravention of the provisions of the feu-contract.

The defender M'Rae averred that as Simpson was not a conterminous proprietor no service of the petition was required upon him; further, that he was under the belief that all the servitudes had been removed. He also averred that the pursuer's son-in-law lived quite close to where the buildings were being erected, and that the pursuer frequently passed the place and saw what was going on, and never informed him of the alleged servitude, or warned him against proceeding with the proposed buildings.

The pursuer pleaded—“(1) The said servitude having been validly constituted, or at any rate the agreement for the constitution thereof having been validated rei interventu, the pursuer is entitled to decree in terms of the declaratory conclusions, with expenses. (2) The erection of the said buildings being in contravention of the foresaid servitude, the defenders ought to be ordained to remove them. (3) Separatim, In the event of the foresaid servitude not having been validly constituted, the pursuer is entitled to decree in terms of the alternative declaratory conclusions, and the defenders ought to be ordained to take down the said buildings as concluded for.”

The defender Mason pleaded—“(1) The proposed agreement to discharge the original servitudes over the subjects mentioned in the summons not having been completed, the pursuer is not entitled to decree in terms of the first two declaratory conclusions of the summons.”

The defender M'Rae pleaded—“(3) The said buildings having been erected by this defender in bona fide, with the knowledge and acquiescence of the pursuer, he is not entitled to decree against the defender for the removal thereof.”

On 24th November 1883 the Lord Ordinary ( M'Laren) pronounced the following interlocutor:—“Finds (1) that it is not established that the properties of the pursuer and the principal defender are disburdened of the original servitudes against building, and are burdened with new real servitudes in the terms sought to be declared by the 1st and 2d conclusions of the summons: Finds (2) that the pursuer has, in the knowledge and with the consent of the principal defender, laid out his property for building, and has erected self-contained dwelling—houses thereon; and therefore Finds (3) that neither party is entitled, in a question with the other party, to found on the original servitudes contained in the title-deeds to the effect of restraining the erection of self-contained dwelling-houses: Finds (4) that it is not established that the said original servitudes are unconditionally discharged: and Finds (5) that the pursuer is entitled to have it ascertained by agreement or declarator what are the conditions and restrictions with reference to building which affect the estates of each of the parties in favour of the other: Appoints the case to be enrolled for further procedure under this finding: Further, finds (6) that until the institution of this action no steps were taken by either party to have the building conditions in question ascertained and reduced to writing; and that in such circumstances decree ought not to pass against the defenders for the immediate demolition of the buildings complained of, &c.

“ Opinion.—The pursuer and the principa defender are proprietors of adjacent subjects in Edinburgh, part of a property originally known by the name of Gilmore Park, and, as I understand, they hold of the same superior. By the original feu-contract, dated 8th September 1803 the pursuer's author came under an obligation to the superior not to erect any building on the garden ground thereby conveyed exceeding 7 1 2 feet in height; and the superior came under a reciprocal obligation not to erect any building exceeding 10 feet in height over a certain part of his property therein described.

By the feu-contracts set forth in the second condescendence, similar obligations were undertaken

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by the superior and fenar respectively, the limit in these oases being 10 feet for both parties. The principal defender is a singular successor of the superior in the subjects to which the superior's obligation applies; and it is admitted that it was the intention of the contracting parties to constitute servitudes altius non tollendi according to the tenor of the obligations. The second defender is the first named defender's tenant in the subjects.

Such being the relations subsisting between these adjacent estates, the pursuer and the principal defender through their agents entered into correspondence in the intention, as I conceive, on both sides to discharge the servitudes reciprocally affecting their lands, and to enter into a substituted agreement for the appropriation of these lands for the purposes of building. It is stated that the consent of the superior was given to the discharge of the servitudes so far as he was concerned. Since that consent was obtained, the pursuer has, as he states, erected dwelling-houses of a superior class upon his property, and he complains that the defender's tenant has erected stables on part of the ground originally affected by the servitude, contrary to the agreement or negotiation which took effect in 1876.

The parties having concurred in asking me to dispose of the case on the statements on record without a proof, I shall not attempt any formal review of the facts of the case, but will indicate briefly the grounds of my judgment:—

1. I find that the defender, by his own admission, is under an equitable obligation to execute a regular agreement to the effect contained in his agent's draft letter of 6th February 1876 (Cond. 4), such agreement to take effect from this date.

2. I find that the defender was not entitled to do any personal act contrary to the tenor of the said letter, knowing, as he did, that the pursuer had acted in conformity with it. But

3. I find that no real servitude has been constituted so as to affect parties deriving right from the principal defender, and therefore that his tenant, the second named defender, is not bound to remove the temporary buildings complained of.

4. I find that the omission to execute a regular agreement creating servitudes is not imputable to the defender, but was the joint act or neglect of the parties, and consequently that the principal defender ought not to be responsible in warrandice for the past acts of his tenant, but should grant warrandice against any future acts of the like kind, and should also come under an obligation to restore the ground at the termination of the current lease.

5. There are no conclusions for the execution of an agreement, but if the parties acquiesce in this judgment, I shall delay putting it in form to allow of a proper agreement being executed, and reserve my judgment on the question of expenses.”

The pursuer reclaimed, and argued—Either the original servitudes or the substituted agreement must exist. If the former, then the buildings objected to were a contravention of the original servitudes by being much too high; if the latter, then the buildings are not dwelling—houses as was contemplated. In either case the pursuer was entitled to decree. But further there was rei interventus here, for not only did the pursuer purchase a discharge of the old servitudes by an increased feu-duty, but he proceeded to erect houses at a cost of £9000 upon the faith of the agreement; and all this was known to and acquiesced in by the defenders. The effect of the Lord Ordinary's judgment would be that there would be no existing servitudes. The pursuer never acquiesced in the erection of the stable, but it was only when they approached completion that he realised their true character.

Argued for respondent Mason — Although he was most anxious that the agreement should be carried out, yet as a matter of fact it never was completed, and there was no agreement capable of being reared up by rei interventus.

Authority— Rankine v. M'Gibbon, Jan. 19, 1871, 9 Macph. 423.

Argued for respondent M'Rae — Pursuer was barred by acquiescence from insisting in his demands.

At advising —