Scottish Court of Session Decisions

Robert Kirk Inches was proprietor of two shops, Nos. 87 and 88 Princes Street, with sunk area in front, the area upon which the house was built, and the back area and buildings upon it. The upper storeys and garrets above Inches' shops formed part of the Balmoral Hotel, and belonged to Archibald Arrol. At one time these properties were held under one title by the late Dr Johnston under a disposition dated 30th April 1808 by the late David Reid in his favour. In that disposition the subjects were described as “All and whole that lodging or dwelling-house, consisting of a sunk storeys, three other storeys, and garrets, erected by Alexander Reid,.… situated upon the north side of Princes Street, … with the area whereon the said house is built, … as also the back area or ground belonging to the said dwelling-house … enclosed with a stone wall, and the stable and coach-house built upon the said back area or ground, and situated behind the said dwelling-house, together with the sunk area, cellars, and pavement above the same in front of the said house.” The property was described as bounded “on the south by Princes Street, and on the north by the Meuse Lane.”

By disposition dated 10th May 1823 Dr Johnston disponed to George Mylne, “All and whole the two upper storeys and garrets, being the drawing-room, bed-room, and attic storeys of that lodging or dwelling-house, consisting of a sunk storey, three other storeys, and garrets, erected by Alexander Reid,… which house and area … are bounded as follows, viz.,… on the south by Princes Street, and on the north by the Meuse Lane;… but declaring that the said George Mylne shall have no right whatever to the diningroom storey and sunk storey of the said house, or to the area and cellars in front thereof, or to the area behind the same, or stables and other buildings erected or to be erected thereon.”

By disposition dated May 1860 the trustees of the New Club, situated immediately to the east of the property, disponed to Mr Archibald Arrol the upper storeys and garrets, which they had acquired from Mr Mylne. The description of the subjects conveyed was identical with the description in the disposition to Mr Mylne, except in that it contained this additional clause—“And the said subjects hereby disponed now consist of three storeys and attics, that is, the drawing-room storey, and two storeys and an attic storey above;” and the declaration that “the cornice at the top of the New Club buildings, and the other mouldings on the front, &c., are to be allowed to return on the front of the subjects hereby disponed.”

By charter of resignation dated 12th May 1824, following on the disposition by David Reid, the Lord Provost and Magistrates “gave, granted, and in feu-farm, fee, and heritage for ever disponed to and in favour of Henry Johnston, Esquire, surgeon in Edinburgh, and his heirs or assignees whatsoever, heritably and irredeemably, the whole of the said subjects conveyed by the foresaid disposition by David Reid;… but excepting always from the dwelling-house above described the two upper storeys and garrets, being the said drawing-room, bed-room, and attic storeys thereof, which was sold and disponed by the said Henry Johnston to George Mylne.” These subjects under the above description were conveyed through a series of titles, and ultimately in 1880 became vested in Inches.

Inches applied to the Dean of Guild in the summer of 1886 for warrant to alter his property by projecting the front of his shops, and the warrant was granted by interlocutor dated 15th July 1886.

In the same month Arrol presented a petition to the Dean of Guild for “warrant to remove the front wall and existing oriel window of the drawing-room of the Balmoral Hotel, Princes Street, Edinburgh, situated immediately above the shops Nos. 87 and 88 Princes Street, which shops belong to the respondent Robert Kirk Inches; to erect a new front and oriel window over, and resting upon, an extension of said shops, proposed to be made by said respondent, who is in course of petitioning for the authority of your Lordship to make such extension, his petition being now pending in your Lordship's Court; and to insert iron beams to support the front wall and upper floors of the petitioner's property.” He offered in the event of his proposed alteration causing expense to Inches by forcing him to make his projection stronger than would otherwise have been necessary, to pay whatever sum might be required for that purpose.

The petitioner stated that the south boundary of his property was Princes Street, and that the proposed alteration would merely extend his frontage thereto, the north side of Princes Street being demonstrated by the alterations of Inches.

Inches and the New Club lodged answers. They denied that the petitioner's southern boundary was Princes Street, that street being the boundary of the whole property with the area in front, and stated that the proposed operations would extend beyond his southern boundary, not only because the subjects disponed to him were not declared to be bounded on the south by Princes Street, but because also he was under his title (as above quoted) expressly excluded from any right to the dining-room storey and sunk storey, or to the area and cellars in front thereof. The New Club also objected on the ground that under the declaration in the petitioner's title (as above quoted) the cornice at the top of the New Club

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buildings, and the other mouldings on the front, &c., were to be allowed to return on the petitioner's buildings, and the petitioner would, if he carried out his proposed alterations, be obliged to remove part of the termination of the New Club balcony, which returned upon his property.

The petitioner pleaded—“(1) The petitioner's property being bounded on the south by Princes Street, and the proprietor of the under part of the tenement having brought forward, or being about to bring forward, the south front of his shops, the petitioner is entitled to improve his property by the alteration now proposed. (2) The proprietor of the dining-room and sunk storeys of a tenement having obtained authority to project his frontage, the proprietor of the upper storey of the same tenement is entitled to obtain authority to make a similar alteration.”

The respondent Inches pleaded, inter alia—“(1) The petition ought to be refused with expenses, in respect—1st, The operations for which warrant is craved are not confined to the petitioner's own property; and 2d, the proposed operations would encroach upon the respondent's property and rights.”

The respondents, the trustees of the New Club, pleaded—“(1) The operations in question not being confined to the petitioner's own property, et separatim, as these operations would, if executed, be injurious to the property of the respondents, warrant should be refused with expenses. (2) Both under the petitioner's title, which flowed from the respondents, and at common law, the petitioner is not entitled to execute the operations proposed, and warrant should accordingly be refused.”

The Dean of Guild found that the proposed alterations were not confined to the petitioner's own property, and would entail interference with the mouldings of the New Club buildings, and would infringe a condition of the petitioner's title. He therefore refused the warrant.

“ Note.—The petitioner craves warrant to remove the froqt wall and existing oriel window of the drawing-room of the Balmoral Hotel, Princes Street, Edinburgh, above the shops belonging to the respondent Inches; to erect a new front and oriel window over and resting upon an extension of said shops, for which warrant has been granted to the respondent Inches by this Court, and to insert iron beams to support the front wall and upper floors of the petitioner's property. The petitioner avers that the disposition in his favour describes his property as bounded by Princes Street, and that the proposed alteration will only extend his frontage to Princes Street, the north side of Princes Street he contends being demonstrated by Inches alterations. The respondent Inches denies that the petitioner's disposition describes his property, or even the tenement, as bounded by Princes Street, and he avers that it is the area in front which must be understood as ‘bounded by Princes Street.’ He avers also that by the titles the property is possessed in the following manner:—the upper flats and attics of the tenement fronting Princes Street by the petitioner, and the area and buildings thereon, except the upper storeys, by the respondent Inches.

“The respondents, the trustees for the New Club, from whom the petitioner acquired his title to the subjects in question, found on a clause in the petitioner's disposition which declares, inter alia, that the mouldings in front of the Club building are to be allowed to return on the petitioner's front, under which burden the subjects were disponed, the said burden to be inserted in the sasine following on the disposition and to be inserted in all future transmissions and sasines.

“There are two series of titles of the subjects in question, and these shew clearly the law of tenement which must be followed in this case. Under these the ownership was admitted to be as follows:—The petitioner is particularly restricted to the upper flats and attics of the tenement, and the respondent Inches possesses the whole of the area with the buildings on it, except the portions of the tenement possessed by the petitioner. As mentioned above, the respondent Inches has obtained warrant to project an extension of his property over the space originally occupied by this area, which by his titles belongs exclusively to him, and it is on this extension that the petitioner claims a right to rest his proposed new front and oriel window.

“The Dean of Guild cannot admit this claim. It might have been otherwise if he had merely proposed to make certain operations on his own property. But he does not propose only to erect a new front and oriel window for his property. He proposes further to rest these on the respondent Inches' proposed projection, and it appears to the Dean of Guild that this would impose a burden on the lower projector to which he is not bound to submit.

“It was also admitted at the debate that if the proposed alterations of the petitioner were carried out, the petitioner would be obliged to remove a portion of the mouldings of the New Club building which now returns on the front of his property. It appears to the Dean of Guild that if this were done the petitioner would infringe a condition of his title.”

The petitioner appealed, and argued—(1) The the tenement in question was identical in character with that in the case of Urquhart v. Melville, 1853, 16 D. 307, and that on the authority of that case the proprietor of the lower storeys of such a tenement who projects his frontage is bound to support the frontage projected by the proprietor of the upper storeys, so long as the former suffers no injury and the latter acts reasonably. All that the lower proprietor had was a common interest, which would not entitle him to object unless he could show some damage or injury—Stair, ii. 7, 6; Rankine on Landowner—ship, 558; Taylor v. Dunlop, November 1, 1872, 11 Macph. 25; Calder v. Merchant Company of Edinburgh, February 26, 1886, 13 R. 623 (Lord Shand's opinion). (2) The condition in the disposition by the trustees of the New Club was not violated, for the moulding still returned, although not to the same extent.

Argued for the respondents—The question fell to be decided on the titles alone. The respondent Inches, as proprietor of the projection on his own ground, had a right a centro ad cœlum, subject only to the law of the tenement, which, no doubt, would prevent him building on it so as to block up the lights of the petitioner's storeys— Graham v. Duke of Hamilton, June 30, 1868, 6 Macph. 965, July 28, 1871, 9 Macph.(H.L.) 98;

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Gellatly v. Arrol, March 13, 1863, 1 Macph. 592; Johnston v. White, May 18, 1877, 4 R. 721. Nor was there any distinction between the back and front in the question of property. There might be in a question of common interest. But property was here the de quo queritur. A proprietor had a right of property a centro ad cœlum, and therefore a right of property in the air above his house, entitling him to raise his house higher; but there was no such right laterally in the cube of air beside his house— Boswell v. Magistrates of Edinburgh, July 19, 1881, 8 R. 986; Heron v. Gray, Nov. 27, 1880, 8 R. 155. Both those case swere commented on in Dundas v. Blair, March 12, 1886, 13 R. 759. The case of Urquhart v. Melville, and Taylor v. Dunlop had no bearing on the present case. The former was distinguished by the facts that all the property was bounded by the street; that all belonged to the same person, and that it was that person who made the projection. In the latter case there was no competition as to title. It was a mere question as to the amount of the burden upon the subjacent tenement. The dictum of Lord Shand in the case of Calder v. The Merchant Company of Edinburgh ( supra) was to be read with its context, and that context deprived it of any bearing on the present question.

At advising—