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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sandeman and Others (SandeMan's Trustees) v. Brown and Others [1892] ScotLR 30_217 (15 December 1892)
URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0217.html
Cite as: [1892] ScotLR 30_217, [1892] SLR 30_217
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[Dean of Guild Court, Glasgow.
v.
Facts:
A contract of ground-annual of building lots in a crescent declared that the disponers should not feu or sell any part of their ground for the erection of buildings of a style or class inferior to those to be erected on the lots. The disponers conveyed another part of their ground under burden of the whole conditions contained in the contract of ground-annual, and under the further declaration that the disponees should not be entitled to erect or carry on upon the same certain specified works, “or any other works or occupation which should be considered nauseous or injurious” by the disponers and their successors or the adjoining proprietors, and although the same should not be legally deemed a nuisance.
In a question with certain proprietors of dwelling-houses in the crescent, held that the disponees of the second portion of ground were not entitled to
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erect thereon premises consisting of a four-stalled stable, loose box, office, and covered shed, with boiler-house and dung-pit, in respect they were buildings of a style and class inferior to the buildings in the crescent. Opinion ( per Lord Young and Lord Rutherfurd Clark) that the proposed premises were also in contravention of the restrictions, because open to be considered nauseous or injurious to adjoining proprietors.
The ground in Glasgow upon which two rows of residential houses, known as Holyrood Crescent and Lansdowne Crescent, were built was originally part of the Blythswood estate. It was held as one lot in 1820 by William Drury. In 1856 William Drury's trustees conveyed it to James Bunten and George Lamb as trustees for themselves, and James Bunten junior and William Lindsay Lamb. These trustees proceeded to feu out the ground now forming Holyrood Crescent, and by contract of ground-annual between them and Archibald Blair, wright and builder in Glasgow, they disponed to him two steadings marked 7 and 8 on the feuing plan. The contract was dated in June 1859 and contained the following declarations—“Declaring further that the second party and his foresaids shall be bound and obliged, as he hereby binds and obliges himself and them, to erect and finish on or before the term of Whitsunday 1860, on the said two steadings of ground hereinbefore disponed, two self-contained two-storey lodgings or dwelling-houses, conform to plans and elevations made out for the same, so that the same may be respectively capable of yielding a yearly rent equal to at least double the amount of the ground-annual respectively payable therefrom as above specified … which lodgings or dwelling-houses shall be built in a substantial manner of stone and lime, and covered with slate, and the front walls thereof shall be of polished ashlar of a white pile and of a good quality: Declaring that the second party and his foresaids shall be at liberty to put attic storeys on the said lodgings if they shall consider it expedient to do so, and it shall not be in the power of the second party or his foresaids to erect behind the said lodgings any buildings other than the usual offices necessary for the use of the tenants therein, and which offices shall in no case be built higher than one storey of 16 feet to the top of the walls, with an ordinary roof…. And it is hereby further declared that the said first parties shall not feu or sell any part of their said remaining ground, of which the subjects hereinbefore disponed form part as aforesaid, for the erection of public works or for the erection of buildings of a style or class inferior to those to be erected on the steadings hereinbefore disponed, with the exception of flatted tenements of a good class, not exceeding three square stories: Declaring further, as it is hereby provided and declared, that the said second party and his foresaids shall not be entitled to erect or carry on, in or upon the foresaid subjects above disponed, any steam engine, foundry, sugar, candle, soap, smelting, indigo dyeing, glue, or nail works, or any other works or occupation which shall be considered nauseous or injurious by the said first parties and their foresaids or the adjoining proprietors, although the same ahall not be legally deemed a nuisance, in whose favour it is hereby declared that this provision shall operate as a real lien and servitude upon the said several steadings of ground above disponed in all time coming.” Houses were erected on these lots in conformity with the said plans.
In August 1862 Bunten and Lamb deponed to Dugald and Nathaniel Miller, builders in Glasgow, a triangular piece of ground lying at the back of Holyrood Crescent, and separated from the back of Lansdowne Crescent by a meuse lane 10 feet in breadth as described upon an accompanying plan. This piece of ground was disponed under “the whole burdens, reservations, conditions, provisions, restrictions, prohibitions, clauses irritant and others specified and contained in” various deeds including the contract of ground-annual between Bunten and Lamb and Blair already cited. The deed further declared—“But declaring, as it is hereby expressly provided and declared, that these presents are granted, and the said subjects disponed with and under the further declarations that our said disponees and their successors in the said portion of ground hereby disponed, shall not be entitled to erect buildings thereon having more than two storeys, nor exceeding in height 20 feet from the level of the ground … Declaring also, as it is hereby specially provided and declared, that our said disponees and their foresaids shall not be entitled to erect or carry on, in or upon the subjects above disponed, any steam-engine, foundry, sugar, candle, soap, smelting, indigo dyeing, glue, or nail works, or any other works or occupation which shall be considered nauseous or injurious by us and our successors or the adjoining proprietors, although the same shall not be legally deemed a nuisance, in whose favour it is hereby declared that this provision shall operate as a real lien and servitude upon the said portion of ground above disponed in all time coming.” This triangular piece of ground was afterwards disponed to Archibald Sandeman and others, trustees of the deceased John Sandeman. In 1889 Sandeman's trustees made an application to the Dean of Guild Court in Glasgow for permission to erect certain buildings upon this piece of ground, but their application was refused.
In September 1892 Sandeman's trustees and James Somervell, Esq. of Sorn, Ayrshire, presented this petition in the Dean of Guild Court for a lining for proposed premises, consisting of a four-stalled stable, loose-box, office, and covered shed, with boiler-house and dung-pit. This was served upon the feuars living in Holyrood and Lansdowne Crescent, who lodged objections.
The principal objection was as follows,
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stated by the feuars in Holyrood Crescent—“10. The buildings which the petitioners propose to erect on the said piece of ground consist of a five-stalled stable, with corresponding lofts and with dwelling-houses above. There is also a washing-house, a receiving-house, a dairy, and an office shown on the said plan, it apparently being the intention of the proprietors to use the premises as a dairy and stable for cattle and horses. The said buildings do not consist of dwelling-houses, to which the ground is restricted, and they are of a height exceeding twenty feet from the level of the ground. The said buildings, if erected, would greatly darken the adjacent houses, and would obstruct the free current of air to and from the same. There is also provision in the plans for a dung-pit of considerable extent, and unpleasant odours will be emitted from said dung-pit, which will injuriously affect the amenity of the district, and be a source of discomfort to the neighbouring proprietors. The said buildings are really of the nature of ‘works or occupations,’ which the objectors consider to be nauseous to the amenity of the district, and of the nature of a nuisance within the terms of their title.” In answer it was explained that cattle were not to be kept in the buildings, that there were stables connected with the ground acquired under the original titles, and that no nuisance of any kind would be created.
The petitioner pleaded—“(2) The buildings in question not being an infringement in any way of the petitioner's title, the application ought to be granted, with expenses. (3) The buildings in question not creating a nuisance, and not being inconsistent with the use to which the whole ground is destined, the application should be granted, with expenses.”
The respondents pleaded—“(2) The present application should be refused, in respect (a) the proposed buildings exceed 20 feet in height; ( b) they are of a style or class inferior to those erected on the ground originally held by Bunten and Lamb; (c) the occupation of the premises would interfere with the amenity of the respondents' houses, and their proposed use would be of the nature of a nuisance; (d) that openings in the wall forming the west boundary of the meuse lane are prohibited. (3) The buildings proposed to be erected on the said ground being in violation of the restrictions contained in the petitioners’ title, the petition should be refused, with expenses.”
Upon 10th November 1892 the Dean of Guild ( Guthrie Smith) pronounced this interlocutor:—“Finds that the petitioners propose to build on the triangular piece of ground shown on plans produced, lying between and to the back of first-class self-contained lodgings in Holyrood and Lans-downe Crescents, erections consisting of a five-stalled stable, cow-shed, dairy, office, &c., with small dwelling-house above, for the purpose of carrying on a public dairy business: Finds that the said piece of ground was, inter alia, disponed to the petitioners' authors under the condition that no buildings were to be erected thereon of a style or class inferior to those erected on steadings No. 7 and 8 Holyrood Crescent, and under the further special provision and declaration that they should not be entitled to erect or carry on, in or upon the said triangular piece of ground, any steam-engine, foundry, sugar, candle, soap, smelting, indigo, dyeing, glue, or nail works, or any works or occupation which should be considered nauseous or injurious to the adjoining proprietors, although the same should not be legally deemed a nuisance, in whose favour it was declared that said provision should operate as a real lien and servitude upon the said triangular piece of ground in all time coming: Finds that the proposed erections are in contravention of the foresaid condition, provision, and declaration, not only in respect of their being buildings of a style and class inferior to the foresaid buildings in Holyrood Crescent, but also as being a large public stable, cow-shed, and dairy premises, which are alleged by the objectors, and clearly considered by the Dean of Guild and his liners as injurious to and affecting materially the amenity of the houses on either side thereof: Therefore refuses the craving of the petition for lining of said erections, and finds the petitioners liable in expenses to objectors A. Brown and others (Holyrood Crescent proprietors), &c.
“ Note.—The Lord Dean of Guild has personally inspected the ground proposed to be built upon, and is quite satisfied as to the injurious character of the erections proposed, and having looked at the plans in a previous application for lining before Dean of Guild Walls in 1889, which was refused by him, is of opinion that the plans in the present case are even more objectionable than those proposed in 1889.”
The petitioner appealed, and argued—It could not have been intended that the buildings to be erected upon this triangular piece of ground should be of the same kind as specified in the original feuing contract, because they were not intended to be set side by side with these steadings but to be built at the back of them, and on property bounded by meuse lanes. The original feu-contract prescribed that the buildings to be erected on all the ground were not to be inferior to those mentioned in the deed, and it allowed offices to be built at the back of the residential houses. The proposed buildings must be compared with the offices, and as they were not inferior to these they fulfilled all that was made necessary by the restrictions in the original deed. The Dean of Guild had gone beyond his province in refusing a lining to these buildings as nauseous, his duty was only to see to the healthiness and security of the structure, the question of nuisance must arise in another way— North British Railway Company v. Moore, July 1, 1891, 18 R. 1021. The use to be made of the buildings after they were erected could not be considered by the Dean of Guild, so that the question of whether the neighbouring feuars
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considered the dairy, &c., as nauseous although not legally a nuisance could not he considered at this stage— Colville v. Carrick, &c., July 19, 1883, 10 R. 1241. The ground upon which the Dean of Guild put his judgment was that this proposed building would spoil the amenity of the district, but loss of amenity was not a sufficient ground for the Dean of Guild refusing a lining— Barclay v. M'Ewen, May 27, 1880, 7 R. 792. The only things that the neighbouring feuars were entitled to look upon as nuisances were manufactories analogous to the list set forth in the deed or which were injurious to health. The respondents argued—The restrictions were quite plain. They were contained in the feu-contract granted to Blair and incorporated by reference into the appellant's title. On no part of the ground belonging to the sellers and as yet unfeued was a house to be built of an inferior character and value to the house the feuar was taken bound to build. It was not alleged that the buildings the appellant proposed to put up were of the same character and value as those in Holyrood and Lansdowne Crescent. These restrictions were incorporated in the appellant's title, and gave the neighbouring feuars a right to object to what was in violation of their rights — Morrison v. M'Lay, &c., July 1, 1874, 1 R. 1117; Robertson v. North British Railway Company, July 18, 1874, 1 R. 1213. A very small interest entitled the feuar to object to the proceedings of another— Beattie v. Ures, March 18, 1876, 3 R. 634. The feuars were unanimously of opinion that the operations proposed to be carried on here would be nauseous to them; they were supported in that opinion by the authority of the Dean of Guild, who was a practical man, and charged with the duty of seeing that only buildings proper for the city were erected; it could not therefore be said that the objection was unreasonable. If the amenity of a residential locality like the crescents in question was injured, that was sufficient to render it a nuisance to the inhabitants under the clause in this deed.
At advising—
Two objections are made. The first is an objection that under his the appellant's own title he has no right to erect the buildings in question, because they are of a style and class inferior to those to be erected at the date of the title on these streets to which I have alluded. The second objection is founded on a clause also in his title, declaring that he shall not be entitled to carry on “any works or occupation which shall be considered nauseous or injurious” by the disponers or their successors “although the same shall not be legally decerned a nuisance.”
Now, I think it unnecessary to decide the case on the latter of these objections. To begin with, I do not think the facts are sufficiently agreed on. The Dean of Guild says in his judgment that it is proposed to erect a five-stalled stable, cowshed, dairy, office, &c., with small dwelling-house above, for the purpose of carrying on a public dairy business.”
We were assured, however, that it was never intended to keep cattle at the spot in question, and I think that is important. A dairy is not necessarily a nuisance or injurious to neighbours. It may be kept without being so, although, on the other hand, it may be kept so as to be a great nuisance. And it is the same with the case of a stable.
I therefore return to the first point as that on which the case ought to be decided. I think that the clause in the appellant's title is too distinct and clear to admit of doubt that it forms a good ground for the judgment of the Dean of Guild. It is in these words—“And it is hereby further declared that the said first parties,” the respondent's predecessors, “shall not feu or sell any part of their remaining ground, of which the subjects here in before disponed form part as aforesaid, for the erection of public works, or for the erection of buildings of a class inferior to those to be erected on the steadings hereinbefore disponed, with the exception of flatted tenements of a good class not exceeding three square storeys, and excepting also from the above restriction the ground fronting the Great Western Road and Napiershall Street, which they and their foresaids shall be at liberty to use or feu or sell for the erection of dwelling-houses and shops or others.” Now, I think that that clause—which is made the more emphatic by the only two exceptions admitted by it—makes the case quite clear against the appellant. It practically means in this case that he cannot build upon this piece of ground. It is a restriction upon the appellant in favour of the proprietors in these streets.
The only important argument advanced for the appellant upon the point was that these objecting proprietors have themselves the right to build stables adjoining the meuse lane, and that the appellant is doing something of the same kind, and reference was made to the clause providing that the appellant's author should not have power to erect other than the usual offices, “which offices shall in no case be built higher than one storey of 16 feet to the top of the walls, with an ordinary roof.” But I think that the respondents' argument is a conclusive answer. They say that that clause affects height and height only, and has no bearing upon the prohibition against the “erection of buildings of a style or class inferior” to the respondents’ buildings. There is no style prescribed in the titles for the back offices, and therefore where style is spoken of, it cannot he in regard to these offices.
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On these grounds I am for affirming the Dean of Guild's judgment.
I suggested to the Dean of Faculty during the argument the question whether if such a thing had been proposed to the feuars when they took these feus they would have been willing to take them. The only answer which I obtained was that no such proposal was made, and that it is impossible to say that any feuar would have objected to the use of the ground which is now proposed if he had known of the proposed use when he took his feu. But the same answer might have been made if what was proposed had been the erection of a public slaughter-house. We must take a reasonable view of the restriction, and that leads to the result that people who have stipulated that the ground shall be occupied by dwelling-houses of a certain class did not mean and intend that the subjects should be used for purposes of trade.
I therefore agree that the judgment of the Dean of Guild should be affirmed.
I may add that I do think that there is any case here for looking upon the appellant as a subject of compassion, This triangular piece of ground is unfitted for the erection of dwelling-houses of a specified class. But when the appellant's authors divided out their ground the arrangement of it which they made was their own arrangement, and it is no hardship if they are held to it. That being sufficient for the case, I need give no opinion upon the clause declaring that the appellant's author “shall not be entitled to erect or carry on in or upon the foresaid subjects above disponed, any steam engine, foundry, sugar, candle, soap, smelting, indigo dyeing, glue or nail works, or any other works or occupation which shall be considered nauseous or injurious by the said first parties and their foresaids or the adjoining proprietors, although the same shall not be legally declared a nuisance.” I am not prepared to say that that clause might not be sufficient for the respondent's purpose. The proposed buildings are not indeed of the nature of some of the things which the conveyance has superfluously named. It is that superfluity which leads to difficulty and trouble. But I think it is a legitimate and reasonable construction that such trade buildings as are proposed might reasonably be held injurious to the adjoining proprietors within the meaning of this clause. It is to be noticed that that is the opinion of the Dean of Guild, a practical man. But it is unnecessary to decide this point.
The Court refused the appeal.
Counsel for the Appellant— D.-F. Sir C. Pearson, Q.C.— Dean Leslie. Agents— Morton, Smart, & Macdonald, W.S.
Counsel for the Respondent— Salvesen. Agents— Simpson & Marwick, W.S.