Scottish Court of Session Decisions

This was an action at the instance of Peter Johnston, coachbuilder, 22 Coates Crescent, Edinburgh, against the Walker Trustees—the superiors of the property—and against certain co-feuars holding feus from the same superiors, concluding for declarator that “noth withstanding the terms of the feu-charter, dated 14th, and recorded in the New Particular Register of Sasines, &c., for the sheriffdom of Edinburgh and constabularies of Haddington, &c., 16th, both days of May 1859, granted by Miss Mary Walker of Coates in favour of George John Murray, W.S., Edinburgh, the pursuer, as heritable proprietor of the subjects No. 22 Coates Crescent, Edinburgh, with the parts and pertinents thereof thereby feued, in the first place, is not bound to use the same as a dwelling-house only, and, in the second place, is entitled to possess and occupy the same as a shop or wareroom, or to convert the same into a shop or ware-room, and to possess and occupy them as such;” and for declarator “that any conditions, restrictions, or prohibitions in the said feu-charter limiting the pursuer in his use of the said subjects as a dwelling-house only, or preventing him from possessing and occupying the same as a shop or wareroom, converting the same into a shop or wareroom, and possessing and occupying them as such, have been departed from, and that the defenders and the said other parties, or any one of them, have no right or title to enforce the said conditions, restrictions, or prohibitions against the pursuer.” The pursuer's property consisted of the street and sunk flats at the corner tenement of Coates Crescent and Manor Place. Certain of the co-feuars who were called as defenders and lodged defences in the action, viz., the Misses Hofford, were proprietors of the other flats in the same house, while the others, the Misses Cook, were proprietors of the adjoining house, No. 21 Coates Crescent.

The pursuer acquired the subjects in May 1896 from Mr John Aitken, silk mercer. He held them as vassal of the defenders, the Walker Trustees, under the feu—charter, dated 14th May 1859, granted by their predecessor in favour of George John Murray, W.8., which contained the following clause—“And it is hereby expressly provided and declared that as the tenement built on the said area has been erected in strict conformity to the plan and elevation adopted for Coates Crescent and Manor Place (and the plan and elevation of the said tenement now subscribed by me and the said George John Murray as relative hereto), with balconies and iron railings on both fronts thereof, conform to the pattern adopted for said crescent and place, it shall not be in the power of the said George John Murray, or his foresaids, to convert the said dwelling-house and others hereby disponed into a shop or shops or warerooms for the sale of goods or merchandise of any description, but that they shall be bound to use the same as a dwelling-house only; and further, that it shall not be in the power of my said disponee or his foresaids to erect or make common stairs or separate tenements within the said house, nor to make any deviation from or alteration upon the plans and elevations and pattern balconies and iron railings before mentioned;

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with entry at the term of Whitsunday 1859: To be holden and to hold the said subjects before disponed conform to the foresaid plans and elevations, and not otherwise, of and under me, my heirs, successors, and assignees, as immediate lawful superiors thereof, in feu farm, fee, and heritage for ever.” The charter also bore to convey—“As also right in common with the whole other feuars from me or my predecessors or successors, of areas or stances in Coates Crescent, to the space or area of pleasure-ground in front of the street way of said crescent, now enclosed with a parapet wall and iron railing, and that as a common property of the feuars in the said crescent, on the conditions and obligations after mentioned; … but it is hereby expressly provided and declared that the foresaid dwelling-house and others, with the privileges and pertinents thereof, are hereby disponed, … as also under the burden of a proportional part of the expense, along with the other feuars, of keeping the common sewer, and the causeway, and the surface drains and gratings, in perpetual repair and order, all at the sight of the Lord Dean of Guild of the City of Edinburgh for the time being, or other competent authority; and it is also provided and declared that the foresaid area or pleasure-ground in front of the said crescent shall be used allenarly for pleasure or other accommodation of the several feuars and their families, but shall nowise be converted into a common thoroughfare, and that the said space, with the parapet-walls, railings, entries, gravel walks, trees, and grass ground shall be made, preserved, and kept in order and repair at the common and rateable expense of the whole feuars.” The tenement of which the pursuer's property formed part was built about 1825, but no charter was granted until that of 1859.

The nature of the present case is fully set out in the following extracts from a joint minute of admissions which was lodged by the parties. They admitted—“(2) That the pursuer presented a petition to the Dean of Guild Court, Edinburgh, of this date, for warrant to remove part of the centre gable and interior partitions on the basement and street flats of the subjects in question and to support the walls and partitions above on cast-iron columns and standards and steel beams, and to construct new w.c. in one of the cellars under the street pavement with new window to area, and to make certain other alterations for the purpose of enabling him to use the same as a carriage saloon or wareroom in connection with his business as a coachbuilder, all as shown on the plans relative thereto lodged in the said Dean of Guild Court; that the defenders, the Walker Trustees, the Misses Hofford, and the Misses Cook, opposed the said application; that the said Court sisted process of this date to allow of this action being raised by the pursuer to determine his rights. (3) That the titles of the compearing defenders, so far as founded upon or referred to, are correctly set forth in the answer for them respectively to the fifth article of the pursuer's condescendence; that the titles of the pursuer, of the defenders Misses Cook, and of the other proprietors in Coates Crescent of their respective properties therein, contain clauses of prohibition against the use thereof otherwise than as dwelling-houses only, and against making any deviation or alteration upon the plan and elevation adopted for Coates Crescent, and pattern balconies and iron railings in front of such subjects in terms substantially identical; that all such titles also contain provisions relative to the pleasure-ground in Coates Crescent and to the formation and maintenance of the sewers, inferring community of interest and obligation among the feuars with regard therto; that all such titles also contain a clause providing and declaring that the superior shall have power to vary or alter any of the proposed plans and streets and lanes upon the ground belonging to them and not built upon at the time of granting the respective feu-rights thereof; …. that the whole of the areas known as Coates Crescent and Manor Place was built upon” by May 1854; .… “(4) That from 1871 to 1884 No. 22 Coates Crescent was owned by Messrs Dalgleish & Bell, W.S., and occupied by them as writing chambers; that the partners of the firm occupied the subjects during the day as writing chambers; that they did not sleep on the premises; that they maintained resident caretakers (a man and his wife), who occupied the basement portion of the subjects; that the defenders, the Walker Trustees, were aware of, but did not take any steps to prevent, this use of the subjects; and that no change was made upon the house internally or externally during Messrs Dalgleish & Bell's ownership and occupancy thereof, except that upon the front door, which was kept shut, they placed a brass plate upon which was engraved, ‘Messrs Dalgleish & Bell, W.S.’ (5) That at or about Whitsunday 1884 John Aitken, mentioned on record, acquired the subjects in question from Messrs Dalgleish & Bell, and immediately thereafter began to use the same as a shop or wareroom for the sale of millinery, mantles, costumes, and other goods, which he advertised in the newspapers by the name of ‘Manor House,’ and in circulars addressed to residenters in Edinburgh as ‘Private showrooms for millinery, mantles, and costumes’; that he affixed a brass plate with the words ‘Manor House’ upon it to the inner door in the vestibule of the subjects; that he painted the words ‘Manor House Showrooms’ on the windows looking into Manor Place and Coates Crescent, and that those words also appeared on the dwarf blinds of such windows; that the said windows at first were curtained, and were not used for the display of goods; and that he used the basement floor as workrooms for the manufacture of millinery, &c., and painted the words, ‘Work rooms’ on the outside walls thereof. (6) That several of the proprietors in Coates Crescent objected to such use of the said subjects by the said John Aitken, and that two meetings of such proprietors in connection therewith

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(at the first of which the agent of the superiors was present as representing their interests) were held on 23rd December 1884 and 16th January 1885; … that thereafter a correspondence took place between Mr Aitken and his agent Mr Lockhart Thomson, S.S.C., on the one side, and a committee of proprietors in Coates Crescent and Mr Ralph Richardson, W.S., their agent, on the other, and that in respect of this correspondence no legal proceedings were then taken; and that the letter of 16th March 1885, referred to in said correspondence, was intimated, and a copy thereof sent to the defenders, the Walker Trustees.”

In the letter of the 16th March referred to, Mr Aitken wrote that while advised he was within his rights “if the objecting proprietors abstain from pressing their objections as long as I occupy and use the house as I am now doing, I bind and oblige myself that it will not afterwards be pled acquiescence on their part, and that the respective rights of parties shall be in no way prejudiced thereby. That is to say, it will be quite open to any of the proprietors to adopt whatever proceedings they may be advised to take to have their legal rights determined without my pleading that their being at present passive be construed into consent or approval.”

The said minute of admissions proceeded—“(7) That about 28th May 1885 the said John Aitken began to display goods in the east window of the subjects looking into Coates Crescent; that in consequence of his doing so the defenders Misses Cook erected an iron screen upon the westmost railing leading into the doorway of their house No. 21 Coates Crescent; that the said use of the said window by the said John Aitken was objected to by Mr Charles Cook, W.S., as acting for the defenders Misses Cook; …. (8) That after 28th May 1885 the said John Aitken continued to use the said subjects for the sale of goods as aforesaid; that he used the whole of the windows of the street floor thereof for the display of his goods; that he affixed a brass plate to the step of the outer doorway of the subjects with the words ‘Manor House’ engraved thereon; that such use of the subjects was known to the residents in the vicinity as well as to the public generally, and that the subjects during the occupation thereof by the said John Aitken were entered in the valuation roll of the burgh of Edinburgh as showrooms, and assessed as such for rating purposes accordingly. (9) That Miss Christie, the predecessor of the defenders Misses Hofford, was a customer of the said John Aitken, and that she did not take objection at any time to his use of the subjects in question. (10) That on or about 26th December 1885 the said John Aitken obtained a warrant from the Dean of Guild Court, Edinburgh, ‘to lower sills of the windows to the south, and introduce new sash and case windows in business premises No. 22 Coates Crescent, all as shewn on plan No. 29 of process,’ which is referred to; that the said warrant was obtained in absence, and without the superiors or adjacent proprietors having been called as respondents to the application therefor; that these parties were not aware of such alterations until they had been completed; that upon learning of such warrant having been obtained, and of the alterations thereunder having been made, Messrs W. & J. Cook, W.S., as agents for the defenders Misses Cook, entered into correspondence With the said John Aitken and his agent Mr Lockhart Thomson, S.S.C., relative thereto. (11) That on or about 5th January 1895 the said John Aitken presented a petition to the Dean of Guild Court for leave ‘to remove parts of the front wall in area and first flat of No. 22 Coates Crescent, Edinburgh, and insert iron standards and steel beams to carry the wall above, to open out three blind windows in Manor Place front, to extend frontage to Coates Crescent out to front area wall, to form shops one storey high above pavement, to slap internal walls, remove partitions, erect new partitions, and do other work necessary to carry out said alterations, all as shown on plan;’ that the defenders the Walker Trustees, as superiors, and the Misses Hofford and the Misses Cook as adjacent proprietors, opposed the petition; that Mr Aitken thereafter abandoned his petition on paying the said respondents' expenses, conform to interlocutor of the Dean of Guild Court of 21st March 1895, and that the said petition, with relative plan and the answers thereto for said respondents, are produced and referred to. (12) That the said John Aitken ceased to occupy the subjects in question and removed therefrom in or about February 1896. (15) That the general feuing-plan of Manor Place and Coates Orescent referred to in the titles of the pursuer and of the defenders Misses Cook and Misses Hofford has been lost. (16) That the following deviations or alterations upon the general plan in conformity with which the houses in Manor Place and Coates Crescent were originally erected have been made and have existed for many years, viz., three dormer or attic windows have been added to the roof of the tenement of which No. 22 Coates Crescent forms part; two dormer windows have been made in the roofs of the dwelling-houses Nos. 4, 6, 7, 9, 10, 13, 16, 17, 18, 19, and 20 Coates Crescent; and that in the case of the dwelling-houses Nos. 8, 14, and 15 Coates Crescent, complete storeys have been added to their front elevation, the additional storey of No. 8 consisting wholly of a stone front, and the additional storey of Nos. 14 and 15 consisting chiefly of timber fronts. (17) That the agents of the pursuer were notified previous to his purchase of said subjects by the agents of the superiors, the Walker Trustees, and by the agents of the defenders the Misses Cook, that any intended use of the subjects for trade purposes would be objected to as an infringement of the feu-charter, and that the pursuer's agents were also informed that proceedings had not been taken to prevent such occupation during Mr Aitken's time in consequence of the undertaking of 16th March 1885, but

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the pursuer's agents were not informed of the subsequent correspondence between the agents of the defenders Misses Cook and the said John Aitken, before referred to.”

The pursuer pleaded, inter alia—“(1) The restrictions condescended upon in the feu-charter referred to having been departed from by the consent or acquiescence of all parties having an interest in the enforcement thereof, the pursuer is entitled to decree of declarator as concluded for, with expenses. (2) The defenders the Walker Trustees as superiors having acquiesced in the occupation and use of the said subjects as condescended upon, are now barred by personal exception from insisting upon compliance by the pursuers with the said restrictions, and separatim having now no interest to insist upon the preservation of the said restrictions, the pursuer quoad them is entitled to decree of declarator, with expenses. (3) The said defenders having, as condescended upon, consented to or permitted material deviations from and alterations upon the general plan and elevation referred to in the said feu-charter, are not now entitled to enforce observance of the relative restrictions as to use or conversion in the pursuer's title. (5) The proprietors of adjoining properties having no jus qucesitum in the enforcement of the said restrictions against the pursuer, and even if they had such a right, the same having been lost by their acquiescence in the said conversion, or in any event by their failure to take any steps in vindication of such right, the pursuer quoad them is entitled to decree of declarator as craved.”

The defenders the Walker Trustees pleaded—“(4) The alteration on and occupation of his property proposed by the pursuer being in violation of the terms of his titles, and these defenders never having acquiesced in the abandonment on the part of their vassals of the conditions and restrictions contained in their feu-charters, are entitled to absolvitor.”

The other defenders pleaded—“(3) These defenders in virtue of their titles and in virtue of the conditions and restrictions contained in the titles of the pursuer and their other co-feuars under the Walker Trustees are entitled to insist on the fulfilment by the pursuer of the conditions and restrictions in his charter.”

The Lord Ordinary ( Kyllachy) on 7th January 1897 assoilzied the compearing defenders from the conclusions of the summons.

The pursuer reclaimed, and argued— As regards the superior—It was true that his title to defend as arising out of the feu-contract could not be disputed, but by acquiescing in the erection of the storm windows, and by permitting the use of the pursuer's own house for twenty-five years in a manner contrary to the titles, the superior had barred himself from objecting. The fact that he did not object was equivalent to his consent, and accordingly he could not now step in and lend his name to the feuars to enforce these conditions— Carron Company v. Henderson's Trustees, July 15, 1896, 23 R. 1042; German v. Chapman, 1877, L.R., 7 Ch. D. 271; Glover v. Coleman, 1874, L.R., 10 C.P. 108. Accordingly, the superior having consented to these alterations, both in structure and use, had no good grounds for resisting. 2. As regards co-feuars—The same argument applied to the question of their acquiescence, assuming that they had a good title to defend. But they had no vested right to insist in the other feuars observing conditions. In a bargain between a superior and a vassal, prima facie the contract must be taken as concerning them alone, unless it were clear that they intended that other parties should have an interest in it, i.e., that the restrictions were intended to be for the benefit of all the feuars, and not for that of the landlord. Mere identity of provisions was not enough to prove such an intention nor reference to a plan, unless it could be shown that the plan was introduced as pactional, and referred to in such a way as to make it part of the agreement. There was here no such mutuality of rights and obligations between the feuars either expressly or by implication as would give them a right to enforce the restrictions— Hislop v. MacRitchie's Trustees, June 23, 1881, 8 R. (H.L.) 95; North British Railway Company v. Moore, July 1, 1891, 18 R. 1021.

Argued for respondents—1. The superior's title was admitted. As a matter of contract he had bound himself that certain things should be done, and the only plea that could be taken against him was “no interest.” The onus lay upon the pursuer to show that the superior had lost interest by a material change in circumstances, and that he had failed to do— Earl of Zetland v. Hislop, June 12, 1882, 9 R (H.L.) 40. Assuming the storm windows to have been contraventions, at most it could only be held that the superior was barred from objecting to similar alterations of structure— Stewart v. Bunten, July 20, 1878, 5 R. 1108; Johnston v. MacRitchie, March 15, 1893, 20 R. 539. But the change here proposed being in no way similar, and being most destructive to the value of adjoining property, it was impossible to infer consent thereto. In all cases where a plea of abandonment had been given effect to, the abandonment had been quite general— Campbell v. Clydesdale Banking Company, June 19, 1868, 6 Macph. 943; Magistrates of Edinburgh v. Macfarlane, December 2, 1857, 20 D. 156. In any case, “acquiescence” was not a proper plea in this case, for in all cases where it had been admitted that there had been something done by the feuar which could not be undone— Muirhead v. Glasgow Highland Society, January 15, 1864, 2 Macph. 420. 2. As regards co-feuars—The same argument with regard to the plea of “acquiescence” applied, assuming that they had a title. Taking the feuars as a whole, they had in their charters a most clear and binding reference to a common plan of building, showing that the intention was that all should conform to it, and should have a right to complain if a co-feuar did not conform.

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There was something to show that the restrictions were imposed for the benefit of the feuars as well as the superior— Hislop v. Mac Ritchie's Trustees, supra. It was not the case that to prove this intention the superior must bind himself in so many words to insert the same obligation in every charter. It was enough if there was substantial similarity.

At advising—