Scottish Court of Session Decisions

George Todd, wholesale hardware merchant, presented a petition to the Dean of Guild, Glasgow, for authority to make certain alterations upon subjects in Wilson Street, Glasgow, of which he was the proprietor, described as “the flat immediately above the shop No. 10 Wilson Street.”

The petitioner proposed to make a connection between the said flat and the house immediately to the east, of which he was also the proprietor, by breaking through the gable wall of the flat (which was not a mean gable, but formed part of the tenement itself) and the gable wall of the adjoining property, and making a doorway or passage between them, his intention being to occupy the flat above the shop No. 10 Wilson Street as an addition to his warehouse, which was situated in the adjoining building.

John Wilson, C.A., who, as judicial factor on the trust-estate of the deceased Thomas Forrest, rope and twine manufacturer, was proprietor of the shop No. 10 Wilson Street, lodged objections. He averred—“(Objection 2) … Access to the upper flats of the tenement was obtained by a common stair. … The flues from the fireplaces of the objector's shop passed up through the gable forming the eastern wall of the tenement. (Objection 4)The petitioner … carries on in the adjoining building the business of a hardware and fancy goods merchant. His stock is of an inflammable description. … (Objection 5) From the plans produced with the petition it appears that the petitioner proposes to break through the two gable walls separating his present warehouse from the flat above the petitioner's said shop, to insert in the opening a wide doorway or passage, to shut up the present entrance to said flat from the common stair No. 12 Wilson Street, to occupy said flat as an addition to his warehouse, and to use said passage or opening as the only means of access thereto. The result will be that forall practical purposes said flat will be part of the petitioner's warehouse, and through it the whole of the tenement will be subjected to the same risk of fire as the petitioner's warehouse. (Objection 6) The petitioner further proposes to occupy the flat for the storage of goods. … By the bye-laws enacted by the Police Commissioners on 21st November 1892 the floors of warehouses and workshops must be able to carry 224 lbs. per square foot as a safe load. The floors in question are not nearly strong enough.”

The petitioner in answer denied that the proposed alterations would lead to any increased risk of fire, and explained that his flat would be shut off from the objector's property by fireproof doors, and that the floor would be strengthened to the satisfaction of the Master of Works.

The petitioner pleaded—“(2) The petitioner being the sole proprietor of the portion of the gable through which the proposed entrance is to be formed, and said alterations being safe, he is entitled to decree as craved.”

The objector pleaded—“(1) It is incompetent for the proprietor of one flat of a tenement to connect it with the adjoining building by cutting through the intervening gables. (2) The alterations proposed being unsafe, the petition ought to be dismissed.”

Upon 9th July 1894 the Dean of Guild pronounced this interlocutor—“Finds that the petitioner is proprietor of the first flat of the tenement No. 10 Wilson Street, Glasgow, being the flat immediately above the shop in said tenement belonging to the objector: Finds that the petitioner is not entitled to cut through the east gable of the said first flat for the purpose of connecting the flat with the building belonging to him adjoining the said tenement on the east: Therefore sustains the objections and refuses the lining craved,” &c.

“ Note.—This case seems ruled by Gellatly v. Arrol, 1 Macph. 592. It is true that in that case the chimneys of the lower proprietor were interfered with, while that is not here alleged. But the interlocutor of the Court is expressed in general terms, and unless the petitioner could show that the plan of the original construction of the tenement No. 10

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Wilson Street was more favourable to allowing communication with the adjoining building than in Gellatly v. Arrol, this distinction between the cases seems not material. And the contrary is the fact, for here the tenement in question has a distinct gable from the petitioner's building adjoining, which latter, indeed, fronts to a different street, and it is said that the buildings were even formerly separated by a close. The Judges in Gellatly v. Arrol apparently all were of opinion that the intention of the builder in substance constitutes the law of such a tenement, while Lords Cowan and Neaves were also of opinion that the increased risk of fire arising from the opening of communication with the adjoining buildings, which was there founded on, as it is here, could not be disregarded. No doubt this risk of fire would be so far reduced by the fireproof doors proposed by the petitioner, though such doors are apt to be left open, but the objector seems within his legal rights in insisting on having a house or shop distinct from the others, so far as consistent with the general plan of the building, as Lord Neaves puts it in Gellatly v. Arrol. It is unnecessary to consider whether the floor of the petitioner's flat could be sufficiently strengthened for its intended use without unduly interfering with the objector's property.”

The petitioner appealed. After some delay had been allowed for inquiry, it was admitted by counsel for the objector, that the proposed operations would not interfere with, nor cause damage to, the flues from the fireplaces in his shop which passed through the gable wall of the petitioner's flat.

Argued for the petitioner—The objector had admitted that the petitioner's operations would not cause any damage to the flues of his shop; the only danger therefore against which he needed to guard were those of fire, and greater traffic by and through the common stair. With regard to the last of these, the petitioner was going to shut up the door leading to his tenement from the common stair, so that there could be no fear from that cause, and in regard to fire, it was a theoretical proposition altogether. There was no reason why a fire should break out because there was a passage between the two houses more than if the passage had not been made; there was therefore no reasonable apprehension of danger or injury which was necessary in point of law as the foundation of an objection— Gellatly Arrol, November 13, 1863, 1 Macph. 592, Lord Kinloch, 596. The objector had no right of common property in the walls of the building, but only a right of common interest, and as the petitioner's operations were entirely in suo no objection could be taken— Taylor v. Dunlop, November 1, 1872, 11 Macph. 25; Wall v. Burgess' Trustee, March 9, 1891, 18 R. 766; Calder v. Merchant Company of Edinburgh, February 26, 1886, 13 R. 623.

Argued for the objector—The true principle for the decision of this case was that the law of the tenement which was imposed upon it by the original builder regulated the rights of part-proprietors, and, as according to the original design this building was to be a tenement by itself enclosed within its own four walls, no one of the part-proprietors was entitled to alter that condition of things without the consent of the others. In this case the risk of fire was greatly increased by putting another house into connection with this one, and this risk had been considered as a valid objection to such operations as were here proposed— Gellatly v. Arrol, cited supra.

At advising—