Scottish Court of Session Decisions

This was an action at the instance of William Lawson, merchant, Leith, against George Wilkie, stationer, Leith, craving for declarator, (2) “that the defender, by virtue of the provisions contained in disposition by George Lindesay of Feddinch in favour of William Thorburn, baker in Leith, dated 3rd and 11th April 1860, and recorded in the New Particular Register of Sasines for the sheriffdom of Edinburgh, &c., 10th May 1866, and of a disposition by the said George Lindesay, with consents, in favour of Francis Lindesay, wine merchant in Leith, dated 3rd and 11th April 1866, and recorded in said Particular Register of Sasines 16th May 1866, is debarred from building on the vacant ground or back-green forming part of the subjects disponed by said George Lindesay to the said William Thorburn, nearer to the north face of the wall forming the south boundary of said vacant ground or back-green than 10 feet, and that a brick wall of 12 feet or thereby in height, forming part of the buildings recently erected by the defender at the back of the premises belonging to him, facing Constitution Street, Leith, is built to the extent of 5 feet or thereby in length, and of 20 inches or thereby in depth, upon the said vacant ground, and within 10 feet from the north face of the wall forming the south boundary of the said vacant ground, or within 10 feet of the line occupied by the said north face prior to the recent partial removal by the defender of said wall, and thus constitutes a breach of the provisions contained in the said dispositions.”

There was in addition a conclusion for interdict against erecting further buildings, for removal of a brick wall already erected, and (5th) for damages in respect of the encroachments.

The pursuer was the owner of subjects entering from 33 Quality Street, Leith, and extending backwards towards Constitution Street, Leith, and the defender was owner of subjects entering by 31 and 32 Quality-Street, and also of subjects facing Constitution Street, the subjects extending from one street to the other.

Prior to the year 1866 these properties belonged to Mr Lindesay of Feddinch, who in that year disponed them to Mr Francis Lindesay and to Mr William Thorburn, from whom the pursuer and defender respectively acquired them. The original dispositions were, so far as material to the present case, expressed in identical terms.

The disposition of the defender's property was described as embracing “All and whole that tenement of four storeys, including the sunk storey, formerly number eighteen, now number forty-six, Constitution Street, Leith, with the cellars and outhouses attached and belonging to the said tenement, all as presently occupied by Messrs Cochrane, Paterson, & Company, corn merchants, and the said William Thorburn, and the area of ground on which the said tenements, cellars, and outhouses stand, and also the vacant ground situated to the north of the said area of ground and partly behind the same, and partly behind the area of ground on which the tenement number forty-four Constitution Street stands, which vacant ground is at present occupied by the said William Thorburn as a back-green.… But declaring that the subjects hereby disponed are disponed with and under the restrictions, and others underwritten, which are hereby declared to be real burdens affecting the said subjects hereby disponed—that is to say, the said William Thorburn and his foresaids shall not have power to build on the vacant ground or back-green forming part of the subjects hereby disponed nearer to the north face of the wall forming the south boundary of said vacant ground or back-green than ten feet, and any building that may be erected on said vacant ground shall not exceed, as regards the south elevation thereof, eighteen feet in height from the surface of the ground.… And further, the wall enclosing the foresaid vacant ground or back-green on the south and south-west, so far as it divides the subjects hereby disponed and the said subjects sold by me to the said Francis Lindesay, shall belong to the proprietors of both subjects mutually, and shall be upheld by them at their mutual expense, and it shall not be in the power of either proprietor, without consent of the other, to raise the said wall above its present height.”

In March 1896 the defender began to erect a brick wall on the back-green within 10 feet of the south boundary wall, as described in the summons.

The pursuer, after various procedure and correspondence, raised the present action on 22nd April 1896.

The defender averred—“Explained that the wall referred to in the disposition by George Lindesay in favour of William Thorburn is a division wall between the pursuer's and defender's properties, and that the defender has not built on the vacant ground or back-green forming part of the subjects disponed by Lindesay to Thorburn nearer than 10 feet to the north face of said wall. At the end of said wall there was formerly a gate which led down to an area belonging to the defender, and on the side of said gate there was a pillar erected for the purpose of supporting it. Said pillar formed no part of the wall in question, but was erected entirely on ground belonging to the defender, and had a considerable area of ground forming part of the defender's property on the south and east of it. Further, the ground upon which the brick wall complained of is erected was never vacant ground within the meaning of the clause in the disposition in question. Further, at the time when said disposition was granted, there had been erected, ex adverso of the gate at the end of the mutual wall, and within 8 1 2 feet or thereby of part of the north face of the wall, a toolhouse which belonged to the defender's authors. It was not intended by said disposition to affect the right to maintain the

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said building, or to erect future buildings on the space occupied by said toolhouse, or upon any space to the south and east of said toolhouse, the sole object of the servitude being to preserve light and air for the yard belonging to the pursuer on the south of the division wall in question.”

The Lord Ordinary (Low) allowed the parties a proof, the import of which sufficiently appears in his Lordship's opinion, infra.

On 4th December the Lord Ordinary found for the pursuer in terms of the second, third, and fourth conclusions of the summons.

Opinion.—“Until the year 1866 the properties now belonging to the pursuer and the defender respectively, belonged to Mr Lindesay of Feddinch, and in that year he disponed the defender's property to Mr William Thorburn, and the pursuer's property to a Mr Lindesay. The question at issue between the parties depends chiefly upon the construction of these dispositions. The dispositions, so far as material to the case, are expressed in identical terms.

“The defender's property is described as consisting of two parts, first, a tenement of four storeys, ‘with the cellars and outhouses attached and belonging to the said tenement … and the area of ground on which the said tenement, cellars, and outhouses stand;’ and secondly, ‘the vacant ground situated to the north of the said area of ground,’ and partly behind it and partly behind another property, ‘which vacant ground is at present occupied by the said William Thorburn as a back-green.’

“Looking at the plans which have been produced, there does not at first sight appear to be much doubt as to what the subjects are which are referred to in the two branches of the description. Take plan No. 46 of process, which is admitted to be a correct representation of the properties before the defender commenced to build. The vacant space or back-green is there shown as a perfectly well—defined space, surrounded on all sides by walls, and it answers the description of being partly behind the area of ground described in the first place in the disposition, and partly behind the other property there referred to. It is further not disputed that it is the ground which was occupied by Mr Thorburn as a back-green.

The clause in the disposition on which the pursuer founds is in the following terms:—‘Declaring that the said William Thorburn and his foresaids shall not have power to build on the vacant ground or back-green forming part of the subjects hereby disponed nearer to the north face of the wall forming the south boundary of said vacant ground or back-green than 10 feet, and any building that may be erected on said vacant ground shall not exceed, as regards the south elevation thereof, 18 feet in height from the surface of the ground.

Here, again, if the plan only is considered, the area over which the prohibition to build extends does not appear to be doubtful. There is a wall which forms the south boundary of the back-green, and prima facie the continuity of the wall as the boundary is not broken by the fact that there is a door through it at the east end. Nor does the fact that at the east end there is a small piece of the defender's ground on the south side of the wall render the wall at that place the less the boundary of the back-green.

But then the defender says that at the date of the dispositions there were two small buildings in the south-east corner of what is shewn upon the plan as a back-green, and that these buildings did not form part of the back-green but were outhouses ‘belonging to the tenement,’ and were among the subjects included in the first branch of the description.

These two little buildings were spoken to by the witnesses Robert and James Thorburn, who are sons of Mr Thorburn, to whom the defender's property was disponed in 1866. Mr Thorburn was tenant of the property for six years before he bought it, and his sons say that for some years after they went there the houses in the back-green were in existence. The elder brother, Robert, although he was only eleven years old when his father bought the property, has a distinct recollection of the houses, and gives a clear, and, I have no doubt, an accurate description of them. They were two little houses standing side by side, about 4 or 5 feet square, and about 10 feet high, built of stone and with a flat stone roof. The door to which I have referred in the south-east end of the boundary wall of the back-green gave entrance directly into one of the houses. At what date the houses were removed is not definitely ascertained. Both the Messrs Thorburn think that they were removed soon after their father bought the property, and when he was making some alterations upon the dwelling-house. I think that that was probably the case, but I cannot hold it to be a proved fact in the case that the houses were not removed until after the disposition to Mr Thorburn. In the view which I take of the case, however, that is not material, and I shall assume that the houses were standing at the date of the disposition. Even upon that assumption, however, I cannot regard them as being ‘outhouses attached and belonging to the tenement,’ and therefore as falling within the first branch of the description, and not included in the back-green.

The little buildings might, no doubt, be described correctly enough as outhouses, but they are not attached to the tenement, nor do I think that they could be properly described as belonging to the tenement, even assuming (what is doubtful) that it is competent to read the words ‘attached and belonging,’ as if they had been ‘attached or belonging.’

“The back-green is not only described in the titles as a separate subject from the tenement, but it is physically a separate subject. The tenement has certain outhouses attached to it, and also an open area or courtyard. The back-green in question

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is on a higher level than the ground upon which the tenement with its outhouses and courtyard stands, and access is had to it by a flight of steps which lead from the courtyard to the door in the wall to which I have referred. Further, it is difficult to imagine any purpose connected with the tenement which the little buildings could be intended to serve. When, or by whom, or for what purpose they were erected cannot be ascertained, but the description given of them by Mr Robert Thorburn, and their situation, suggest that they had been designed to serve some purpose (such, for example, as tool-houses) in connection with the back-green and not with the tenement. If it had been desired to describe the buildings as belonging to any subject, I think that they would have been described as belonging to the back-green.

But then the defender argued that if the buildings were on the back-green in 1866 it could not be described as an open space, and that therefore the open space referred to must have been the portion of the back-green on which there were no buildings. Now, no doubt, if the buildings were in existence, it was not strictly accurate to describe the whole back-green as vacant ground, although as the back-green was of considerable extent, and the buildings were very small and of no value, the inaccuracy of the description was not serious. But, further, the subjects are not only described as vacant ground but as vacant ground which ‘is at present occupied by the said William Thorburn as a back-green.’ Now, what was occupied by Mr Thorburn as a back-green was. the whole ground including the little buildings which, if used by him at all, were used as adjuncts to the back-green, and not as offices in connection with the tenement. Further, in other parts of the disposition the ground is referred to as ‘said vacant ground or back-green.’ I therefore do not think that the criticism upon the wording of the description is of much weight and I cannot doubt that the little buildings were included in the subjects described in the second place in the disposition..…

I am therefore of opinion that the prohibition extends to the south-east corner of the back-green. The defender has infringed that prohibition by the wall which he has erected. No doubt the infringement is so far very small, but it is admitted that the wall which has been erected is only one side of a proposed porch, which would constitute a substantial infringement of the prohibition. I am therefore of opinion that the pursuer is entitled to decree so far as regards the infringement.

The first conclusion of the summons is for declarator that a certain cellar belongs to the pursuer. The defender does not now and never has disputed the pursuer's right to the cellar, and to introduce the question into this action was altogether unnecessary.

The pursuer further concludes for damages. He has put in certain accounts which seem to represent extrajudicial expenses which he has incurred in certain litigations in regard to the properties which he has had with the defender. It is clear that he cannot claim the amount of these accounts as damages in this action. The pursuer further claims damages for the trouble to which he has been put in defending his rights. I never heard of such a claim, which is one which might be put forward by almost every successful litigant. The rule is that every one is entitled to maintain and defend what he believes to be his legal rights, and unless in the case of an action being brought maliciously and without probable cause, an unsuccessful litigant is liable in no further damages than the expenses of process.”

The defender reclaimed, and argued—Obviously if the buildings were in existence at the time of the disposition, the ground occupied by them could not be described as vacant ground, and accordingly the prohibition could not apply. The evidence sufficiently established that these buildings did exist, but in any case since the pursuer was claiming a right of servitude, the onus lay upon him of showing that these buildings did not exist at that time, and he bad failed to produce any evidence to support that view.

Argued for respondent—There was no real evidence as to the existence of the buildings. But even assuming their existence, a true construction of the pursuer's titles warranted his obtaining a prohibition against building now—Bell's Prin., sec. 995, which showed that at most his right would be suspended by the presence of these little buildings, to be revived on the ground being again vacant.

At advising—