Scottish Court of Session Decisions

In 1890 the Caledonian Railway Company, in the exercise of their statutory powers, acquired from the trustees of the late Robert Cochran a plot of ground on the east side of Finnieston Street and south side of Stobcross Street, Glasgow. The said plot of ground formed part of a larger portion of ground belonging to the same trustees.

In the same year a minute of agreement (dated 11th, 29th, and 30th September and 3rd October 1890) was entered into between the said trustees of the first part and the Railway Company of the second part, in the following terms— “Whereas [ here the sale of the plot of ground was recited], and whereas the second party intend to excavate the said plot of ground so that the level thereof will be considerably lower than the level of the remaining ground belonging to the first party, and the second party intend to construct along the southern boundary of the said plot of ground acquired by them a retaining-wall for the purpose of preventing the ground and buildings on the said remaining ground from subsiding and falling upon the said plot of ground; and it has been mutually arranged that such retaining wall shall, subject to the conditions hereinafter mentioned, be erected in such manner that it may extend throughout its entire length for a distance of 3 feet 3 inches or thereby southward from the boundary line between the said plot of ground and the said remaining ground, but so that no part of the said retaining-wall shall come above the surface of said remaining ground, and the southern side of the fence wall to be erected on the top of the said retaining-wall shall be coincident with the said boundary line: Therefore these presents witness that the parties hereto have agreed, and they hereby agree, as follows, videlicet—( First) The second

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party shall, with all reasonable despatch, construct, and thereafter maintain, the said retaining-wall as hereinbefore recited, with a recess therein for the existing cellar, which, so far as it may be interfered with by the erection of said retaining-wall, is to be restored by the second party for the use of the first party, all as more precisely shown on the plan and section prepared by Charles Forman, C.E., Glasgow, signed as relative hereto. ( Secondly) After completion of the said retaining-wall, the first party and their successors in the said remaining ground shall have right in perpetuity to make openings in the said retaining-wall, and to build upon the same, in so far as to the southward of the said boundary line, and to use such openings as cellars or for other purposes, provided that no such openings, or the use thereof, shall endanger the stability of the said retaining-wall. ( Thirdly) In the event of the first party or their fore saids at any future time excavating the said remaining ground, or any part thereof, to such a level as to render it unnecessary for the support of the said remaining ground and buildings thereon, or any part thereof, that the said retaining-wall, or any part thereof, should longer remain, the second party shall, on receiving from the first party a request so to do, remove the said retaining-wall, or the part thereof so rendered unnecessary; and failing the second party complying with such request within a reasonable time, the first party shall be at liberty, at their own expense, to remove the said retaining-wall, or the part thereof rendered unnecessary, and to appropriate as their own the materials thereof.”

In 1895 Cochran's trustees raised an action in the Sheriff Court of Lanarkshire at Glasgow to have the Caledonian Railway Company interdicted from encroaching in any way on the pursuers' property known as the Verreville Pottery, Finnieston Street, or from interfering in any way with the retaining-wall forming the northern boundary of the pursuers' property. There was a further conclusion in the petition to have the defenders ordained to restore the retaining-wall to the condition in which it was before the defenders' interference therewith, and failing their restoring the wall, for warrant to the pursuers to get the said alteration effected at the defenders' expense.

The pursuers averred— “(Cond. 2) In terms of an agreement between the pursuers and the defenders, dated 11th, 29th, and 30th days of September and 3rd days of October 1890, a retaining-wall was erected along the northern boundary of the pursuers' property for the purpose of preventing the ground and buildings on the said plot of ground belonging to the pursuers from subsiding. Under the said agreement the defenders have no right to interfere with this retaining-wall. (Cond. 3) The defenders, or those for whom they are responsible, are in course of cutting large openings or spaces in the said retaining-wall which materially weaken the wall and endanger the pursuers' property, and which under the said agreement they have no right to do.”

The defenders referred to the agreement, and in answer to condescendence 3 admitted “that the defenders formed two recesses in said retaining-wall near its western extremity, and explained that the said recesses are wholly situated on the defenders' own property, and that the formation of the said recesses has been completed without injury to the said wall or the pursuers' property. Quoad ultra denied.”

The pursuers pleaded—“(1) The operations of the defenders complained of being in direct contravention of the agreement under which the said retaining-wall was erected, and being a source of immediate danger to the pursuers' property, interdict and interim interdict should be granted as craved.”

The defenders pleaded, inter alia—“(2) Defenders' operations being entirely on their own ground and within their right, they are entitled to absolvitor.”

On 8th November 1895 the Sheriff-Substitute (SPENS) interdicted the defenders from interfering to any further extent than what they have already done with the retaining-wall in question, and on 9th December he further granted warrant to the pursuer to restore the wall to the condition in which it was previous to the interference therewith.

Note to interlocutor of 8th November 1895—“If the question above decided is to be further contested on the part of the Railway Company, I suggest that it should be appealed at once. The ground of my judgment can be stated in a few words. The retaining-wall in question is a mutual wall of great thickness. I understand it to be at least 6 feet in breadth, although this is not stated either in the condescendence or defences. Admittedly it is built partly on the ground of pursuers and partly on the ground of defenders. By the agreement produced it was built by the Railway Company, and at the expense of the Railway Company; that does not, however, affect in any way the question so far as I can see. The wall being built partly on the land of A and partly on the land of B, they have a joint property in the wall. The legal result is this, that apart from any conditions in the agreement, neither party can at their own hands interfere with the wall in question. I can find nothing in the agreement which confers upon the Railway Company a right at their own hands to interfere with the retaining-wall by cutting openings or spaces in it. Such interference as matter of law can only take place where there is mutual agreement, or by the authorisation of a Court on application of either of the parties, where, perhaps, it appears to the Court that the withholding of consent to the proposed interference is wholly unreasonable on the part of one of the parties and of material advantage to the other.”

The defenders appealed to the Sheriff (BERRY), who on 29th October 1896 adhered, and remitted to the Sheriff-Substitute for further procedure.

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Note.—“The retaining-wall, as provided for in the agreement between the parties, has been erected now for some time, and I am of opinion that the defenders, the Railway Company, are not entitled at their own hand, and without the consent of the pursuers, to alter or interfere with it.

“I think that on general principles of law they would be precluded from doing so, but independently of these I think that in the present case any such interference as is now sought to be justified would be in violation of the agreement of September 1890. Under that agreement, clause 2, a right is reserved in perpetuity to the first party—that is, the pursuers—to make openings in the wall to the southward of the boundary line, and to use such openings as cellars, or for other purposes, so long as no such openings are such as to endanger the stability of the wall. No similar power is reserved to the Railway Company, and I think that by implication they must be held to be excluded from it. It is obvious that were such openings or excavations to be made by them on their side of the boundary, it would practically prevent, or at least interfere with, the exercise of the reserved power given to the proprietors on the other side.”

After sundry further procedure in the Sheriff Court, the Sheriff-Substitute on 21st June 1897 pronounced a final interlocutor in the cause, and the defenders appealed to the Court of Session.

It was admitted at the bar that the wall was 6 feet 6 inches thick or thereby, and that the ground to the north of the wall was 25 feet lower than the ground to the south. Mr Forman's plan and section referred to in the first article of the agreement showed no vertical section of the wall.

The defenders' argument sufficiently appears from the opinions of the Court.

Argued for the pursuers—(1) Under the agreement the defenders had been guilty of a breach of contract. The pursuers were expressly entitled by the agreement to make openings in the wall, but no such power was conferred upon the defenders, who must therefore be taken to be prohibited from such operations. (2) At common law the pursuers had at the very least a joint right of property in the wall. It was a mutual wall, subject to the law of such walls in urban tenements, though not subject to the law of mutual gables. Operations on such common walls when not necessary could only be carried out by common consent—Bell's Prin., sec. 1078; Dow and Gordon v. Harvey, November 9, 1869, 8 Macph. 118; Begg v. Jack, October 26, 1875, 3 R. 35. [ Lord President—But has not the authority of Begg been seriously impugned by Grahame v. Magistrates of Kirkcaldy, July 26, 1882, 9 R. (H.L.) 91?] In any event, the pursuers here averred that the defenders' operations had weakened the retaining-wall, and they ought to be allowed a proof of these averments.