Scottish Court of Session Decisions

In 1887 John Wyllie, merchant, Kilmarnock, feued a piece of the glebe situated in London Road, Kilmarnock, from the minister with consent of the heritors and presbytery. The feu-charter contained the following clause:—“That the said John Wyllie and his foresaids shall be bound, so far as not already done, within two years from the last date of these presents, to erect upon the piece of ground hereby disponed a dwelling-house, with suitable offices, agreeably to and in conformity with a plan and elevation thereof to be approved of by me or my foresaids, and to build said dwelling-house all of stone and lime and covered with slates, and which offices shall be effectually screened from the manse and garden so as to preserve the amenity of the same, and which shall for the actual erection cost at least the sum of six hundred pounds sterling: Provided always that no buildings of any other description shall be built on the ground hereby disponed, and the ground unbuilt upon shall be used exclusively as gardens or for planting or as pleasure-grounds or for ordinary agricultural purposes, except in such cases as a deviation may be specially sanctioned in writing by me or my successor in office and the said heritors and presbytery.” Mr Wyllie erected a villa and offices in terms of the feu-charter.

In 1899 Mr Wyllie proposed to making certain additions to the out-buildings, including a pony stable. He submitted a plan of the proposed extensions to the Rev. William Dunnett, the superior. The latter marked the plans as approved, but thereafter on 15th April 1899 he withdrew his consent, giving as his reason for doing so that the neighbours objected to the stable on the ground that it would occasion a nuisance.

Mr Wyllie presented a petition to the Dean of Guild of the burgh of Kilmarnock to grant a lining for the proposed erections. Mr Dunnett and various proprietors of adjoining properties, and the Master of Works, were called as respondents.

Objections were lodged to the proposed buildings so far as they included a stable, (1) by Mr Dunnett on the ground that the plan and elevation had not been approved of by him in terms of the feu-contract, and (2) by two of the adjoining proprietors—John Wilson Wallace and John Turner, on the ground that the erection would be a nuisance to them.

On the 17th May the Dean of Guild ( Gemmill) pronounced the following interlocutor:—“Sustains the objections by the respondent the Rev. William Dunnett, and refuses the prayer of the petition,” &c.

Note.—“The superior of the ground on which it is proposed to make the erections specified in the petition has lodged objections and founds upon the clause in the charter granted by him to the petitioner, which is in the following terms”—[ Clause quoted as above].

The Court are of opinion that the two years referred to in the said clause having expired, and the plan and elevation not having been approved by the superior, nor specially sanctioned in writing by him or the heritors and presbytery, the superior's objections must be sustained. In this view it is unnecessary to dispose of the objections lodged by the other respondents.”

The petitioner appealed, and argued—Under the feu-charter the petitioner was required to erect on the feu a dwelling-house with suitable offices costing a certain sum, and according to plans approved by the superior. This obligation was put upon the feuar in order to protect the feu-duty, and buildings of the nature specified had been erected. Now, after twelve years he desired to add to the offices, and there was nothing in the feu-charter to prevent his doing so. The proposed erections were of the character specified in the feu-charter, and were not in violation of any of its restrictions, and the superior had no right to object to their construction— Mair's ‘Trustees v. M'Ewan, July 15, 1880, 7 R. 1141. Even if the minister's approval of the plan was required, it had been given in writing, and he was not entitled to withdraw it. The objections of the other respondents to the petition on the ground of nuisance had not been disposed of by the Dean of Guild, but they were referred to as the reason for the superior withdrawing his consent. Objections on the ground

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of nuisance were beyond the jurisdiction of the Dean of Guild. An apprehension of nuisance if a stable were built on a feu of this kind was far-fetched, and there was no good reason in law for refusing a lining on such a ground— North British Railway Co. v. Moore, July 1, 1891, 18 R. 1021.

Argued for respondents—All three respondents were represented by counsel, but the Dean of Guild had only dealt with the superior's objection. The vassal had twelve years ago received the superior's sanction to build a dwelling-house and certain offices in accordance with a specified plan. He had done so, and thus had exhausted his right under the sanction then granted. If he wished now to make some other erections on the feu, he was not entitled to do so without receiving the superior's consent— Thom v. Chalmers June 25, 1886, 13 R. 1026. It was not a case in which a superior had no interest, because he had an interest to preserve the amenity of his own manse and garden, and also to see that the amenity of the feuing ground was not interfered with. Besides, a stable was not included in offices suitable for a villa such as the one in question. There was no stable on any of the adjoining properties, and the words of the clause in the charter were a limitation to a dwelling-house and offices suitable thereto.