Scottish Court of Session Decisions

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On 30th June 1871 the City of Glasgow Bank disponed to Messrs Baird & Brown, timber merchants, Glasgow, a portion of the lands of North Woodside, situated in the west of Glasgow. The disposition contained a declaration in the following terms “And further declaring that we and our foresaids shall be bound, as we hereby bind and oblige ourselves and our foresaids, to adhere to the general feuing-plan of our said lands, and to erect on the said lands houses of the character and style indicated thereupon, a copy whereof was signed as relative to the foresaid agreement between us and our said disponees, a reduced copy whereof is hereto annexed and signed as relative hereto, and to give effect to this condition in all feu-contracts, dispositions, and other conveyances of the plots of ground shown on the said feuing-plan, and which declaration is also hereby declared to be a real lien and burden upon our said lands.” The plan annexed to the disposition was a plan of the surface. It did not indicate the character or style of the buildings by any elevation or sketch. It showed only the line of the terraces and streets. On the line of the buildings so indicated were the words “for self-contained lodgings and corner tenements.”

The Assets Company, Limited, were the singular successors of the City of Glasgow Bank. Messrs Lamb & Gibson, builders, Glasgow, acquired the land disponed from the representatives of Messrs Baird & Brown, and they disponed parts of it to Robert and James Anderson.

In June 1895 the Assets Company, Limited, raised an action against, inter alios, Messrs Lamb & Gibson and Robert and James Anderson to have it found and declared that the pursuers were entitled to erect on the lands of North Woodside “tenements of dwelling-houses or tenements of dwelling-houses and shops, or such other buildings as they think fit, provided

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that such tenements or buildings are not inferior in character and design to the houses already built upon the said subjects.”

The defenders pleaded, inter alia, that under the defenders' title the pursuers were restricted from erecting on the lands in question any buildings other than self-contained houses and corner tenements.

On 20th December 1895 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“(2) Finds that the pursuers are bound by the conditions in regard to building on the lands of North Woodside contained in the disposition granted by the pursuers' authors, the City of Glasgow Bank, in favour of Baird and Brown, dated 29th and 30th June 1871: (3) Finds that the defenders Lamb & Gibson, and Robert and James Anderson, are the singular successors of Baird and Brown, and are in right to insist on the conditions contained in said disposition: (4) Finds that the second conclusion for declarator is inconsistent with the conditions in reference to building on said lands of North Woodside contained in said disposition, and that as in a question with these defenders the pursuers are not entitled to insist on decree in terms of the said second conclusion, and that the said defenders are entitled to absolvitor from the said declaratory conclusion, and assoilzies the said defenders therefrom accordingly: Finds them entitled to expenses, and decerns.”

Note.—“This is an action relating to building restrictions affecting the lands of North Woodside in the vicinity of Glasgow. Questions of the kind have been frequently before the Court, but this action raises the question in an unusual, perhaps unprecedented form. Generally such actions have related to alleged infringements of the building restrictions by an individual feuar, and have taken the form of actions of interdict by the superior or by a cofeuar, or of appeals from judgments of a Dean of Guild Court. But this action is raised by the superior or disponer, and it seeks to have the building restrictions which restrain him defined by decree of declarator. These restrictions are usually ascertained by the feu-rights which have been granted by the superior, combined with a feuing-plan, and it seems a difficult and delicate task to gather up the conditions expressed in different words in various dispositions, and express them all in one decree of declarator.

The action in its terms relates to the whole of the lands of North Woodside which have not been feued or disponed, but the debate before me was conducted with reference to a certain part of the lands, shown conveniently on a small feuing plan, on which are laid down certain terraces and rows which are now called Doune Terrace and Doune Gardens, and Carlton Terrace and Carlton Gardens. The whole of Doune Terrace and Doune Gardens has been given out and built on, and so have the western parts of Carlton Terrace and Carlton Gardens. But the eastern portions of Carlton Terrace and Carlton Gardens are still in the hands of the superior, and the main immediate purpose of this action is to ascertain the superior's rights as to building on these portions, although the conclusions of the action relate to the whole lands of North Woodside still in the hands of the superior.

The pursuers, the Assets Company, are the singular successors of the City of Glasgow Bank, and no question has been raised about their title, neither has it been questioned on either side that they are bound by the conditions in the feu-dispositions granted by the City of Glasgow Bank, and are entitled to enforce these conditions in precisely the same manner as the City of Glasgow Bank was bound and entitled.

The defenders are all the persons who hold feu-rights of the lands of North Woodside, and they haveall lodged defences founding on their clauses in the several feu-contracts.

The conclusion is for declarator that the pursuers ‘are entitled to erect on said subjects tenements of dwelling-houses, or tenements of dwelling-houses and shops, or such other buildings as they think fit, provided that such buildings are not inferior in character and design to the houses already built on said subjects’—that is to say, it affirms that the pursuers are entitled to erect on the unfeued portions of Carlton Terrace and Carlton Gardens tenements which are not self-contained, shops, and buildings of any sort, provided they reach a certain character and design. Now, seeing that the pursuers are entitled to do what they please with their own property so far as not restricted by contract, they are, no doubt, entitled to declarator in these terms, unless they are inconsistent with the conditions in any of the defenders' titles. But if they should be shown to be inconsistent with any of the conditions of any one of the dispositions or contracts constituting the titles of the defenders, decree of declarator to that effect cannot be pronounced, unless circumstances have intervened which make these conditions inapplicable or incapable of enforcement.…

I take in the first place the case of Lamb & Gibson, including that of Robert and James Anderson, and I consider the action as if it were an action against Lamb & Gibson only.

Lamb & Gibson are singular successors of Baird and Brown, whose feudisposition from the City of Glasgow Bank is dated 29th and 30th June 1871. I understand that their feu was the earliest given off, and it consisted of about five acres at the northern extremity of the lands of North Woodside, separated from Doune Terrace and Carlton Terrace by a road called on the record Wilton Terrace Road.

This feu-disposition contains the following declaration by the City of Glasgow Bank—[ His Lordship read the declaration].

There seems to be a question in regard to the general feuing-plan here mentioned; it seems doubtful whether it is extant, and the parties are not at one about it. But there is no doubt that the plan to which this contract relates is the reduced copy appended to the disposition and signed on behalf of the bank. The clause may be read as if no other plan had been mentioned; and I think it clear that that plan is written into the deed and forms a part of it.

Now, the obligation of the superior as regards building under this clause is no more than this, that he binds himself and his successors to erect on the lands houses of the character and style indicated on the plan annexed to the feu-disposition, and I understand that these words express the only restriction on the pursuers right to build on the unfeued land contained in the disposition. The words, however, no doubt require construction, for the clause cannot mean what the words express. They express a positive obligation to erect buildings. But it is certain that that is not what the parties meant. Nobody contends that the superior was bound to build on the lands. He was free to leave them unbuilt on if and as long as he chose. The words must mean that if the superior erected buildings on the lands they should be of the character and style indicated on the plan. Unless the clause means that, it has no meaning at all, and that is what, in my opinion, the clause does mean. Now, this clause, as so interpreted, depends for its meaning on the plan; apart from the plan there is no building restriction at all.

But the plan is nothing but a plan on the surface. It does not indicate the character or style of the buildings by any elevation or sketch. It shows only the line of the terraces and streets, and it does not even require uniformity in the character and style of the buildings. On the line of the buildings so indicated there are the words ‘for self-contained lodgings and corner tenements.’ On other parts of the plan there are the same words, and on other parts the words are different. There is one space shown as a line of houses on which are the words ‘tenements and shops.’ Now, it is clear that the reference to the plan in the feu-disposition is not for identification but for obligation; and I therefore read the clause in the disposition as an obligation imposed on the superior to build no houses in Carlton Terrace or Doune Terrace except self-contained houses and corner tenements. If that be so, the question comes to be whether the declarator asked in this action is consistent with that condition or not.

I am of opinion that it is not, but is in direct contradiction of it. I think that the words ‘for self-contained lodgings’ import a prohibition of tenements not self-contained, and a prohibition of shops. I do not know that it can be said to be a settled point that a limitation to dwelling-houses implies a prohibition of shops. That was decided in the case of Greenhill v. Allan, July 6, 1823, 4 S.D. 160; but that must be regarded as a somewhat early case, having in view the nature of the question, and it is very shortly reported. In Ewing v. Hunter, January 12, 1878, 5 R. 439, a restriction to a dwelling-house was held to import a prohibition to use the house as a school. Cases were referred to in which, when detached or self-contained buildings only were permitted, operations which converted the buildings into two-flatted tenements were held not to violate the prohibitions. See Moir's Trustees v. M'Ewan, July 15, 1880, 7 R. 1141; Buchanan v. Marr, March 7, 1883, 10 R. 936; Millar v. Carmichael, July 19, 1888, 15 R. 991. But these cases fall very far short of holding that a prohibition against any buildings except self-contained lodgings can be consistent with a declaration which would sanction dwelling-houses not self-contained and shops. On the whole I think it fairly clear that there is a radical inconsistency between the clause in the feudisposition to Baird and Brown and that in the conclusions of declarator.

I am therefore of opinion that the pursuers cannot prevail against Lamb & Gibson, and that these defenders are entitled to object to the decree of declarator concluded for, and to be assoilzied from the action; and it follows that the decree of declarator concluded for against them cannot be granted.”

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The pursuers reclaimed, and argued—The words of the clause were ambiguous. They were an indication of intention, but they did not amount to a stipulation or an obligation which could be legally enforced. The plan must be used qua plan. A plan was annexed to a disposition in order to show boundaries or elevations on the line of buildings, but an obligation written on a plan could not be imported into a deed. A stipulation in order to be binding must be in the deed itself. The plan did not enter the record, so that if restrictions written on a plan were to be held as imported into the deed, a singular successor would never know what restrictions he was bound by. The plan could therefore not be founded upon as interpreting by words any restrictions on the class of buildings to be erected— Keith v. Smyth, November 7, 1884, 12 R. 66; Middleton v. Leslie, May 23, 1894, 21 R. 781. The tendency of the Court in later years was to show as little favour as possible to restrictions on property, such as restrictions with regard to the use to which a house was to be put and the like— Moir's Trustees v. M'Ewan, July 15, 1880, 7 R. 1141; Buchanan v. Marr, June 7, 1883, 10 R. 936; Miller v. Carmichael, July 18, 1888, 15 R. 991. Declarator should be pronounced as concluded for.

Argued for defenders—The deed contained a legal obligation which could be enforced against the superior. The plan was to be read into the disposition and must be held to have imported an obligation, and not merely to indicate an intention— Deas v. Magistrates of Edinburgh, April 10, 1772, 1 Pat. App. 259. It was contended that the obligations in the plan were bad because the plan did not enter the record, but one often found in deeds obligations to build houses similar to those already on the ground, and such obligations were binding. All the cases quoted by the other side went to show that the Court would not interfere with the internal use to which a man put his house, but there was no case to the effect that an obligation cannot be effectually imposed by a plan incorporated in a deed. The judgment of the Lord Ordinary was sound.

At advising—