Scottish Court of Session Decisions

In 1872 the City of Glasgow Bank feued out to several disponees by various contracts of ground-annual different lots of the lands of North Woodside, situated in the West of Glasgow, for the purpose of forming, inter alia, a street called Carlton Terrace. The contracts of ground-annual contained the following conditions—“( Second) The said” disponee, “the second party and his foresaids, shall, so far as not already done, be bound and obliged, within one year from and after the date hereof, to erect and finish on the said steading of ground here by disponed a good and substantial dwelling-house of stone and lime, covered with slates, and with polished ashlar fronts, and the back wall of striped ashlar, and which house shall yield a yearly rent equal to at least double the amount of the said ground-annual payable therefrom, and to maintain and uphold and, if necessary, repair and rebuild the said house, so that it shall be in such good, order and repair as will make it yield the said rent in all time coming; ( Third) The front of the house or houses to be erected on the said steading hereby disponed shall be placed upon; he building line, and in all parts and portions thereof shall be built, erected, and fnished in every respect in conformity with the design and building plans exhibited by the said Bruce Miller to Alexander Stronach, the manager of the said bank, and approved of by him, and so as not to be inferior in character or design to the plans exhibited to and approved of by the said Alexander Stronach, with reference to the steadings of ground already built upon, part of said lands, or to the houses already erected on said steadings, the first party (the City of Glasgow Bank) and their foresaids being bound, as they hereby bind and oblige themselves and their successors, to take their disponees in the other steadings fronting Carlton Terrace, already built upon or yet to be built upon, bound to observe similar conditions, and to maintain and erect houses not inferior in character and design to the houses built as aforesaid; ( Fourth) No back house or back buildings or erections of any kind shall be erected on the said steading of ground, other than a washing-house and stable and coachhouse, greenhouse, coal-cellar, and ashpit, and such buildings to be erected shall not be built higher than one storey, and shall not exceed 10 feet in height in the side walls and 15 feet in height to the ridge of the roofs, and it is hereby specially provided and declared that the smoke emanating from any of such buildings or erections and others shall be conducted and carried away by means of vents, to be constructed by and at the expense of the said disponee and his foresaids in the back or gable walls of the front tenements, and it shall not be lawful to nor in the power of the said second party and his foresaids, or of the tenants or possessors of the said subjects, to erect, build, or use upon the same any steam-engine or any sugar-house, or any buildings or works for the purposes of tanning leather, making candles, soap, or glue, singeing of muslin, or making or preparing of vitriol or cudbear, or to erect any kind of chemical works, glass-works, dye-works, foundries, or smelting-houses of iron, lead, brass, or other metals, or forges for making cast or bar iron, or for the manufacture of nails or rods, or for making bulky articles of iron or other metals, or to carry on any of these trades or occupations thereon, or in general to erect any buildings or to carry on any trade, employment, or operations on the premises which shall be hurtful to the houses belonging to the said first party or their disponees in the neighbourhood, or noisome to the proprietors or inhabitants thereof, in whose favour it is hereby declared that the foregoing provisions shall operate as servitudes upon the said plot or area of ground above disponed in all time coming; … and further, declaring that the second party and his foresaids shall be bound in building on the said steading of ground to adhere to the general feuing-plan

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of the said lands of North Woodside; … and the first party hereby bind themselves and their successors to insert in all future conveyances to be granted by them or their foresaids of their said lands of North Woodside, as shown on the said feuing-plan, similar conditions, provisions, obligations, and others as herein expressed.” The plans mentioned in article 3 of the contract showed self-contained dwelling-houses of a superior kind, and the houses erected were in conformity with these plans.

In June 1895 the Assets Company, Limited, who were the universal successors of the City of Glasgow Bank, and by the terms of the City of Glasgow Bank Liquidation Act 1882 liable for all the obligations of the said bank, raised an action against, inter alios, William Ogilvie and the other proprietors of the lots forming Carlton Terrace, for ascertainment of the building restrictions applicable to the lands of North Woodside. The pursuers concluded, inter alia, for declarator that they were entitled to erect on the lands of North Woodside, including the lots unfeued by them in Carlton Terrace “tenements of dwelling-houses, or tenements of dwelling-houses and shops, or such other buildings as they think fit, provided that such tenements or buildings are not inferior in character and design to the houses already built upon the said subjects.”

The defenders, the proprietors of the lots in Carlton Terrace, pleaded, inter alia,“3. On a sound construction of the contracts of ground-annual and dispositions above mentioned, the defenders should be assoilzied.”

On 20th December 1895 the Lord Ordinary ( Kincairney) pronounced an interlocutor containing the following findings:—“(6) Finds as regards defenders, who are feuars or disponees of portions of the said subjects in Carlton Terrace, that the pursuers are bound by the conditions and restrictions which by the rights and titles granted to the said parties the granter thereof undertook to impose on his disponees: (7) Finds that before disposing further of the action as laid against the said last-mentioned defenders, it is necessary to ascertain if possible what the general feuing-plan is which is referred to in the said rights and titles: Therefore allows the pursuers and the said last-mentioned defenders a proof with a view to the identification of the said feuing-plan, the pursuers to lead in the proof.…

Opinion.—…That leads to the consideration of the case against the feuars in Carlton Terrace, as if the action had been raised against them only. The conditions in their contracts are set forth in statement 3 for the defenders Ogilvie and others. The clause is long and rather complicated. [ His Lordship here referred to the clause quoted in the narrative.] It was argued that this clause does not restrict the superior himself in building on the ground, but only binds him to impose restrictions on his feuars. I am prepared to repel that argument, and to hold that the superior is himself bound by the restrictions which he undertakes to impose on his disponees, and it may be of use to pronounce a finding to that effect. But beyond that I am unable to go. I am not in a position to construe the clause, because parties are not agreed as to the general feuing-plan to which it refers. I cannot in this question with the Carlton Terrace feuars assume its identity with the reduced feuing-plan signed with reference to Baird and Brown's feu-disposition. There is not in this case any question about the right of a feuar to enforce conditions in other feu-rights, but only as to his right to enforce the obligations undertaken by the superior in his contract with himself.”

The pursuers presented a reclaiming-note in which they brought under review certain other findings in this interlocutor—(see 33 S.L.R. 407). They did not challenge findings (6) and (7), and these were adhered to on 6th March by the Second Division.

The necessity of leading proof with a view to the identification of the general feuing-plan was obviated by a joint-minute agreeing to a certain plan as the plan referred to in the titles. Afterwards, by interlocutor of 9th June 1896, a proof was allowed as to what the plan showed, from which it appeared that it was a general ground-plan of the lands of North Woodside and Kelvinholme, including the subjects in question, and showed the ground laid out in terraces and streets, with building lines, but indicated nothing as to the character of the houses to be erected.

On 18th July 1896 the Lord Ordinary pronounced the following interlocutor:—“Finds that the conclusions of declarator are inconsistent with the conditions and restrictions which by the rights and titles granted to the proprietors in Carlton Terrace the granter thereof undertook to impose on his disponees in the lands of North Woodside: Therefore assoilzies the defenders from the conclusions in the summons, and decerns.”

Opinion.—…“The first question is, what are the conditions which the pursuers by the title-deeds now under consideration bound themselves to impose on their disponees? It is sufficient to refer to the conditions in the Carlton Terrace titles. Now, the clause is long and complicated and confused, and as ill-drawn as possible.

The clause is divisible into two parts. By the first part it is declared (1) that the disponee shall be bound within a year from the date of the contract to erect a ‘dwelling-house’ of the character and quality described; (2) that the front of the house or houses to be erected ‘shall be placed upon the building-line, and in all parts and portions thereof shall be built … in conformity with the design and building-plans exhibited by the said Bruce Miller to Alexander Stronach, the manager of the said bank.’ It is not necessary to quote the rest of the clause about these buildings. But it proceeds ‘The first party ( i.e., the bank) and their foresaids being bound, as they hereby bind and oblige themselves and their successors, to take their disponees on the other

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steadings fronting Carlton Terrace already built upon, or yet to be built upon, bound to observe similar conditions and to maintain and erect houses not inferior in character and design to the houses built as a foresaid.’ This is a clause of restriction in reference only to Carlton Terrace, not the rest of North Woodside. This clause may perhaps not mean that the clauses in the new dispositions should be absolutely identical with those quoted; but I think that, fairly construed, it does mean that they shall be substantially the same, and that they shall at least stipulate that dwelling-houses shall be erected on the remaining stances, and that a building-line shall be preserved.

Considering that the question is merely a question between two contracting parties, I fail to see why this clause should not be binding on the pursuers if it he intelligible at all. It was their bargain—they chose to make it—that they should insert such conditions in the dispositions of the remaining stances in Carlton Terrace. I am unable to see why they should not be held to their bargain. The present defenders, who are owners of houses in Carlton Terrace, no doubt relied on it when they made their purchases. There might be a question whether one disponee could enforce the conditions against another. But where is the question whether a disponee could enforce them against the disponer? I think the clause must be held obligatory if it be intelligible. Now, it has been decided that, if the disponer obliged himself to impose these conditions on the disponees, he imposed them on himself.

Pausing at this point, the question is whether the declaratory conclusions are consistent with their conditions. I cannot see that they are. The declarator asked is extremely wide. It is really a conclusion that the pursuers are entitled to erect whatever buildings they please, provided they are not inferior in character and design to the houses already built on the subjects. Such a declarator would enable them to disregard the building-line of Carlton Terrace, and it would enable them to build shops where dwelling-houses are stipulated for. I cannot but think that it would be against the good faith of the contract with the proprietors of the houses in Carlton Terrace, to fill up the vacant stances with tenements and shops. It is true that the declarator would be quite consistent with the clause so far as I have considered it, if Carlton Terrace were excepted. But I have not been asked to pronounce a declarator excepting Carlton Terrace. The decision against Lamb and Gibson and John and James Anderson (reported March 6, 1896, 23 B. 569, and 33 S.L.R. 407) does not seem to affect this question, because of the marked difference between the provisions of the dispositions.

The clause proceeds to mention other conditions. It contains important restrictions as to back buildings on the steadings, which I take to be material to the general plan; and certain other obligations, which I need not mention specially because they seem reconcileable with the declaratory conclusions; and there is the declaration ‘that the second party and his foresaids shall be bound in building on the said steadings of ground to adhere to the general feuing-plan of North Woodside,’ and there follows the obligation to insert in all future conveyances of the lands of North Woodside, as shown on the feuing-plan, similar conditions, &c.

Now, as the obligation on the disponee in this contract measures the obligation to be imposed on other disponees, it seems to follow that the pursuers are here bound to impose on their future disponees of any part of North Woodside an obligation to adhere to the general feuing-plan, and, by force of the interlocutor already pronounced, this infers that the pursuers are themselves bound to observe the general feuing-plan.

But then it is said that it has already been decided in the question with Lamb and Gibson that an obligation to observe a feuing-plan was not binding on the pursuers, and it is argued that it follows that in this question with the terrace proprietors an obligation to observe the general feuing-plan must be held equally ineffectual. I feel that this argument is embarrassing, but it appears to be an argument from one finding in an interlocutor against another, and I think I cannot but hold that seeing that the pursuers are bound to impose this obligation on their disponees, they are bound by it themselves. I think I would contradict the finding in the previous interlocutor, which relates to the present proprietors if I did not hold that.

It is to be observed, however, that the general feuing-plan is materially different from the feuing-plan referred to in Lamb and Gibson's disposition. It shows not only the lines of the terraces and the roads and ornamental ground, but also the various stances, and it was to explain the various lines shown on the plan that the evidence was led.

I do not clearly see why, when a party binds himself to abide by a general feuingplan, he should not in a question with the person with whom he contracts, so long as the plan has not been infringed on, be held to his bargain, and looking to the differences between the contract and the plan in this part of the case, and in that relating to Lamb and Gibson, I do not think I am bound to hold—and indeed I do not think I can hold—that the pursuers are not bound by the general feuing plan.

The question remains, however, what is it that the general feuing plan indicates, and what is the obligation which an adherence to it involves? This is the subject-matter of the proof. On this point, however, I think there is little to be said. I think the proof is of no great value, and weighing the evidence on both sides, I am satisfied that the plan does not indicate with sufficient distinctness, for the imposition of a building restriction, that nothing but dwelling-houses were to be permitted on the line of Carlton Terrace and Gardens and Doune Terrace and Gardens. In particular, I am not satisfied that an obligation to adhere to the plan involves a prohibition

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against tenements of dwelling-houses or tenements of dwelling-houses with shops, and if the pursuers had asked only for a declarator that the titles did not prevent them from building tenements of dwelling-houses and tenements of dwelling-houses and shops on their lands, I do not say that that might not have been granted. Such a declarator would leave untouched all the conditions of the deed. It would only involve an interpretation of the plan. But that is not the nature of the pursuers' demand in this action. They ask a declarator which would in truth free them from the conditions of the contract altogether, and enable them to disregard the building line shown on the plan, and also all the restrictions and conditions in reference to the back buildings.

The pursuers declined to restrict their conclusions, but it was suggested that I might give decree under such qualifications as I considered imposed by the contract. But I do not think I can be called on to do that.

My view is, that while the pursuers may not be restricted from building tenements of dwelling-houses or of dwelling-houses with shops, except on Carlton Terrace, as to which there is, in my opinion, such a restriction, they are bound to adhere to the building lines shown on the plans, and to conform to the conditions as to back buildings. But I have not been asked to embody these opinions in a decreet of declarator. The result is, in my opinion, inevitable, that the present defenders are entitled to absolvitor.” …

The pursuers reclaimed, and argued—(1) As regards the obligation to build “a good and substantial dwelling-house,” this included a tenement of dwelling-houses. Building restrictions were not to be interpreted strictly. If tenements were to be prohibited, the word “self-contained” would have been inserted before dwelling-house in the title. If tenements of houses could be built, shops also could be erected as parts of the tenements. (2) As regards the third clause, this clause required the houses to be built in Carlton Terrace to be erected, “so as not to be inferior in character and design” to the houses already built. Did that clause exclude the erection of shops ? No, because there was no restriction as to the use of the houses in the contract of ground-annual, and the use of a building as a shop was primarily a question of use. There was no restriction in the titles against showing, by the structure of the tenement, that buying and selling were carried on therein. While still adhering to their demand that they were entitled to erect “tenements of dwelling-houses and shops,” they were quite willing that the decree to be pronounced should secure to the defenders any right which they might possess, to enforce any of the other conditions, provisions, and obligations imposed on them, the pursuers, by the titles granted in favour of the defenders or their authors. This could be done by the Court without any formal restriction of the conclusions of the summons being required.

Argued for the defenders—(1) The defenders were required to build a good and substantial dwelling-house. This condition was also required to be inserted by the superiors or their successors in all future conveyances of their lands of North Wood-side. A good and substantial dwelling-house meant a self-contained dwelling, and should not be held to include a tenement of dwelling-houses, and least of all a tenement of dwelling-houses and shops. (2) The superiors were taken bound not to erect houses inferior in character and design to those already built. No houses had been already built except self-contained dwelling-houses. This conclusively excluded the building of tenements and shops, as to do so would hurt the amenity of the locality, and be a total divergence from the condition in the title.

At advising—