Scottish Court of Session Decisions

About the end of the eighteenth century the late David Reid, the proprietor of ground at the corner of Argyle Street and Brown Street, Glasgow, built a house of three storeys having Argyle Street as its north boundary and Brown Street as its east boundary. In disponing this house to a purchaser the said David Reid so conveyed it, “with and under the burden and reservation of full power, liberty, and privilege to him to build at any time a tenement fronting Brown Street, leaving an entry or passage from Brown Street of four and one-half feet and from ten to twelve feet high by the back or south side wall of the tenement disponed, and to use vents in the south wall of the tenement disponed, and to join these two tenements from the front of Brown Street backwards, seventeen feet wide,” being the width of the then intended tenement without the side walls where these two tenements were to join each other, and in his dispositions the said David Reid declared that the south wall of the corner tenement “so far as the said two tenements will join each other, shall be a mean and common wall to both tenements.” The said David Reid subsequently built a house in virtue of this reserved power, in which he used the south wall of the existing tenement as the north gable of the new.

By a series of conveyances the first of these houses became vested in the trustees of the late James Stark, and the second in the trustees under the antenuptial contract of marriage of Mr and Mrs Cooper. The latter body of trustees were all domiciled in England.

In 1897 Stark's trustees resolved to demolish and rebuild their property. They requested Cooper's trustees to vacate their property in order that the mutual wall might also be demolished and rebuilt. To this Cooper's trustees refused to agree. Stark's trustees thereupon proceeded to demolish their own property, leaving the mutual wall standing. On the property being demolished it appeared that the said mutual wall was in a weak and dangerous condition, and on a petition by the interim procurator-fiscal to the Dean of Guild Court, the Dean of Guild granted warrant “to take down the gable referred to.” This was accordingly done. In August 1897 Stark's trustees erected new premises together with a new south wall. This wall was built for five storeys. For three storeys it was used by Cooper's trustees as their north gable in place of the one demolished. Stark's trustees then brought the present action in the Sheriff Court of Lanarkshire against Cooper's trustees for payment of £30, 13s., 4d. being one half of the cost of erection of said wall so far as the same was mutual.

Cooper's trustees lodged defences, in which they alleged that the defective condition of the wall was due to the actings of the pursuers or their authors, and denied that the pursuers had judicial authority to pull down the whole wall. They also denied that the wall was a mutual gable.

They pleaded, inter alia—“(1) No jurisdiction. (2) The action is irrelevant. (3) The rebuilding of the wall in question not having become necessary through natural decay, the defenders are not liable for any proportion of the cost thereof. (4) The rebuilding of the wall in question having become necessary owing to the acts or default of the pursuers or their predecessors in title, the defenders are not liable for any proportion of the expense thereof. (5) The wall in question having been taken down in whole or in part by the pursuers at their own hands, and without the defenders' consent or the authority of Court, the defenders are not liable for any portion of the expense of rebuilding the same.”

On 27th July 1898 the Sheriff-Substitute ( Strachan) pronounced an interlocutor whereby he repelled the first plea-in-law for the defenders and allowed a proof.

Note.—“The defenders object to the jurisdiction of the Court in this case on the ground that they are resident in England and have no domicile in this sheriffdom. They are owners of heritable property therein, but that they say subjects them only to the jurisdiction of the Court of Session. There are two grounds on which the pursuers maintain that the Court has jurisdiction in this case. In the first place they say that it falls within section 8, sub-sec. 4, of the Sheriff Court Act of 1877, by which it is provided that “Actions relating to questions of heritable right or title or to division of commonties or division and sale of common property raised in a Sheriff Court shall be raised in the Sheriff Court of the county in which the property forming the subject in dispute is situated, and all parties against whom any such action may be brought shall be subject to the jurisdiction of the Sheriff and Sheriff-Substitute of such county.”

The defenders deny, however, that there is any question relative to heritable right or title involved in this case. The nature of the action they say must be determined by the conclusions, and in this case the conclusion

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simply is for payment of a sum of money. It is therefore, they maintain, an ordinary petitory action involving no question of heritable right or title. That the conclusion is limited to a decree for a sum of money is no doubt the case, but I am not prepared to hold that that is in itself conclusive on the subject. The nature of the action must, I think, be determined by the ground on which the claim for the sum sued for is based. If the claim sued for is based on an obligation arising out of or connected with a right or interest in a heritable subject, and involves the determination of the extent or effect of that obligation—then in my opinion the action relates to a question of heritable right or title although the conclusion may be limited to the payment of a sum of money. Now, the claim sought to be enforced in the present case is the expenses incurred by the pursuers in rebuilding or restoring a mutual wall of which it is alleged that the defenders as conterminous proprietors are taking the use or advantage, and it appears to me that an action for such a claim is in the words of the statute an action “relating to a question of heritable right or title.” The pursuers set forth in their record the titles on which they found as establishing the obligation which they seek to enforce. The titles to the subjects are indeed the very foundations of the pursuers' claim, and I do not see how it can be maintained on the face of this fact that the action in no way relates to a question of heritable right or title. If the pursuers had prefaced the petitory conclusions with a declaratory conclusion to the effect that the wall in question was a mutual wall which had been rebuilt or restored by them, and that the defenders who were taking the use or benefit thereof as conterminous proprietors were liable for a share or proportion of the expense which had been incurred, I do not think it could be possibly disputed that the action was one relating to a question of heritable right or title. But what real difference could that have made on the nature of the action. The ground of liability—the media concludendi—would be precisely the same as they are in the case as it now stands. The declaratory conclusion would be nothing more than a formal declaration of the rights and obligations of the parties which are fully set forth in the record as the basis of the pursuers' claim. But the formal declaration is in no way necessary for the determination of the question of liability which must result either in the granting or the refusal of the pursuers' claim, and its absence, therefore, can make no difference in the nature of the action. It is clear I think that the liability for that must depend to a large extent at least on the nature of the wall and the right or interest of the parties therein under their respective titles. And I am of opinion therefore that the action is of such a character as to subject the defenders to the jurisdiction of this Court.”

A proof was led, the import of which sufficiently appears from the note of the Sheriff-Substitute, infra.

On 30th March 1899 the Sheriff-Substitute pronounced the following interlocutor:—“Finds that the pursuers are proprietors of subjects at the west corner of Argyle Street and Brown Street, and the defenders are proprietors of subjects lying immediately to the south thereof—the said subjects being divided from each other to the extent of 17 feet by a mutual wall: Finds that the pursuers' subjects having become dilapidated and decayed they resolved to take down and rebuild the same, and the necessary plans for this purpose were prepared and sanctioned by the Dean of Guild: Finds that the pursuers proceeded to take down their building leaving a buttress of about 10 feet each side for the support of the mutual wall: Finds that on the pursuer's buildings being taken down it was ascertained that the floor of the basement of the pursuers' property had been excavated, and the mutual wall, which was two feet in thickness, had been underbuilt with a single row of bricks six inches thick: Finds that on this coming to the knowledge of the inspector of works he reported the matter to his superiors, who communicated with the Dean of Guild authorities, by whom a remit was made to Mr Murdoch, builder, to examine the wall in question and report: Finds that Mr Murdoch having examined the premises reported that the underbuilding was quite insufficient for the support of the wall, which was in a dangerous condition and ought at once to be taken down: Finds that the Dean of Guild thereupon granted a warrant for the said wall to be taken down, and that this was accordingly done : Finds that the said wall at the time it was demolished was in a decayed and dangerous condition and no longer could be used with safety as a mutual wall in connection with the said tenements: Finds that the defenders have failed to prove that the said wall was in any way injured or deteriorated in the course of taking down of the pursuers' buildings: Finds that in the course of the re-erection of the pursuers' building the said mutual wall was rebuilt by the pursuers and is now being taken advantage of and used by the defenders or their tenants: Finds that the defenders, as joint-owners of the said wall to the extent to which it is mutual, are liable to the pursuers in the sum of thirty pounds, thirteen shillings and four-pence sued for, being the one half of the expense of rebuilding the same: Therefore decerns against the defenders for payment of the said sum of thirty pounds, thirteen shillings and fourpence,” &c.

Note.—“There are a variety of grounds on which it is contended by the defenders that they are not liable for any part of the expense of rebuilding the wall, for the one half of which they are sued in this action. The wall in question it is maintained by them was not a mutual wall, and was not the common property of the pursuers and defenders. The right of property they say was vested entirely in the pursuers, they having only a common interest therein, which consisted in a right to build against the wall and to use the fireplaces and vents therein. That being so, it is contended

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that the expense of maintaining and the necessary expense of rebuilding the wall fell to be borne by the pursuers as the proprietors thereof, and if they chose in their own interests and to serve their own purposes to interfere with the wall, or make any alterations thereon, they were bound to do so at their own expense. In my opinion, this contention is not well founded. In the titles of the subjects the wall in question is thus referred to—‘and the said north wall in which the said vents are inserted, so far as the said two tenements will join each other, shall be a mean and common wall to both tenements.’ I have no doubt that the wall there referred to is clearly a mutual wall in the usual sense of the term, and the parties have a common right of property therein.

But assuming this to be so, it is argued by the defenders that the demolition of the wall having been caused or brought about through the fault or negligence of the pursuers, the expense of rebuilding it falls to be borne by them alone. They allege (1) that there was fault upon the part of the pursuers in depriving the wall of its natural supports without in any way supplying their place, and thereby rendering it dangerous; and (2) in weakening the foundations by lowering the floor of the basement for the purpose of getting cellar accommodation and underbuilding the wall, which was two feet in thickness, with a single row of bricks six inches thick and quite insufficient for the purpose. It is not of course disputed that the pursuers were quite entitled to take down their own tenement, but they were bound, it is said, to have taken the necessary precautions to prevent the mutual wall being injured by their doing so. In particular, after removing the joists and side wall, by which it was supported, they should have shored it up, and this they entirely failed to do. Now it is true that the wall was not shored up, but it is not proved, in my opinion, that it was thereby injuriously affected, or that the want of shoring had anything to do with the wall being taken down. Not one of the witnesses on either side, with perhaps one exception, says that the wall suffered any deterioration while being taken down. In their view, necessary supports for the wall were left, and the work of demolition was carried through in a careful and prudent manner. Even Mr Wylie, who expresses an adverse opinion, does not say that in point of fact the wall was in any way injured or gave way to any extent in consequence of its not having been shored.

Why then was the wall condemned and taken down? It was done in consequence of the report by Mr Murdoch, a builder, to whom the Dean of Guild Court made a remit to examine the wall, to the effect that the underbuilding was quite insufficient ‘to support the wall, which was in a dangerous condition, and should be taken down at once.’ Following on this report, a warrant was granted for the demolition of the gable, and this was accordingly done, But is the defective underbuilding, which was the primary cause of the demolition of the wall, an act for which the pursuers are responsible? It was maintained by the defenders that it is because it was done by their predecessors in title. This, however, has not been proved. There is not the slightest evidence as to when or by whom the work was executed—nothing but the merest conjectures. All that is known is that the peculiar kind of brick used in the underbuilding has not been in use for the last forty years. I certainly am not prepared to hold that an act done by some unknown person beyond the memory of man is either fault or negligence for which the pursuers are responsible.

It appears from the evidence that although the Dean of Guild authorities considered the defective underbuilding to have been sufficient to warrant the demolition of the wall, it must have been otherwise in a weak and decayed condition. It is clear that if it were not so, it would in place of being demolished have been properly underbuilt. This is a very common and easily executed operation, but according to the evidence of the inspector, he would not like to be the person who would attempt to underbuild such a wall. There is some evidence to the effect that the stones were rotten, and the inspector says, that ‘apart altogether from the question of underbuilding, I formed the opinion that the wall was certainly dangerous and would justify me in reporting it to my superiors.’ The result of the evidence therefore seems to be that the wall was demolished because from its weak and decayed condition it would be dangerous to underbuild it.

The defenders further maintain, however, that apart from the question of fault or negligence they are not liable for the expense sued for because one of two joint owners is not entitled to impose any burden or expense on the other by any interference with the common property for his own purposes and in his own interest. The wall, they say, before the pursuers interfered with it, was in a perfectly safe and satisfactory condition, and in every respect suitable and sufficient for the purpose it was intended to serve, and the occurrences which led to its demolition were entirely the acts of the pursuers for their own benefit and to serve their own interests. Why then should they be called on to pay the expense of proceedings which they did not desire and in which they had no interest? These considerations do not appear to me to be applicable to the circumstances of this case. In taking down their own property for the purpose of rebuilding it the pursuers were undoubtedly acting strictly within their rights. According to the evidence in doing this they did not to any extent injure or deteriorate the condition of the wall. Their operations disclosed its condition but did not in any way cause it. Now if the result of one of two joint proprietors carrying on perfectly legitimate operations within his own property is to disclose such a defective and dangerous condition of the common subject that it not only can no longer be used for its common purpose but leads to its condemnation by

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the public authorities, the expense of restoring it necessarily falls, in my opinion, to be borne by the parties equally. It may be that the defects would not have been discovered had it not been for operations of one of the owners, but that does not appear to me to be material so long as these operations did not cause or lead to the defects. The application of these views to the present case does not seem to me to entail any great hardship on the defenders. In place of the former decayed and defective wall they get the benefit of and are now using the new one erected by the pursuers—and this improvement will no doubt be of material advantage to them or their assignees when they come to dispose of or reconstruct there.

Another plea maintained by the defenders is that the pursuers were not entitled to interfere with the common property without obtaining judicial authority or their consent, and having done so without obtaining either they have no claim against the defenders for any part of the expense thereby incurred to them. How far judicial authority is required in such a case appears to me to be entirely a question of circumstances. Had the pursuers proceeded at their own hand to take down and restore the mutual wall there would undoubtedly be a good deal to say for the application of the rule contended for by the defenders. But there was nothing of that kind done by them. All that they did was to restore the gable after it had been demolished by the public authorities. That was abolutely necessary to be done at once in the interests of both parties, and in my opinion required no judicial authority. It did not in any way prejudice the rights or interests of either of them.

“It would appear from Rankine on Land Rights that there is no decision or authority in the law of Scotland bearing directly on the question raised in this case, but the learned author in dealing with the Roman and French law on the subject says (p. 570), on the authority of Pothier, ‘If repair or reconstruction becomes indispensable through age or mere accident, though the wall be not actually ruinous, each must contribute, and in case of urgency only each may put hand to the work without consulting the other. The inconvenience caused by repair must be borne without indemnification since it results from the nature of things. If, on the other hand, the degradation has been caused by the fault of one of the parties he must bear all the consequences.’ This appears to me to support considerably the views I have stated.”

The defenders appealed to the Sheriff.

On 26th July 1899 the Sheriff ( Berry) pronounced the following interlocutor:— “Adheres to the interlocutor appealed against down to the words ‘examine the wall in question and report.’ Quoad ultra recals the said interlocutor: Finds that the Dean of Guild thereupon granted a warrant for the said wall to be taken down, but that it is not admitted and is not proved that the warrant authorised it to be taken down beyond what was necessary for the public safety, that is, to an extent lower than about 10 feet from the ground: Finds that the wall was immediately taken down to that extent under the warrant, and that a week or two afterwards it was taken down by the pursuers' builder: Finds that thereafter the pursuers erected a new wall as a mutual gable between the two properties, with a foundation at a lower level than before, and of different thickness and different material from the old wall, and that all this was done without consulting or communicating with the defenders, who are now asked to pay part of the cost: Finds in law that in these circumstances the defenders are not liable to contribute to the cost of what was done without their authority or consent: Therefore assoilzies the defenders: Finds the pursuers liable to them in expenses,” &c.

Note.—“The question raised in this case is as to the liability of the defenders to contribute half of the expense of building a mutual wall between their tenement and that of the defenders' which adjoins it to the south in Brown Street. There is a plea to the effect, which was argued before the Sheriff-Substitute, that the wall was the exclusive property of the pursuers, and that the defenders having no more than a common interest in it could not be called on to contribute to the cost of rebuilding it. That plea has not been pressed before me, and I deal with the case on the footing that the wall in question was, as the Sheriff-Substitute found, a mutual gable wall, and so the common property of the two contiguous proprietors. In the beginning of 1897 the pursuers desired to take down and rebuild their property, which they regarded, apparently with reason, as in a decayed condition. The two tenements had been built towards the end of last century, and both had no doubt become much dilapidated. Proceeding on that view, the pursuers addressed the defenders in the beginning of 1897, and according to the evidence of the defenders requested them to concur in taking down and rebuilding their the defenders' tenement, or such portion of it as might be necessary to enable the south, that is, the mutual wall of the pursuers' tenement to be rebuilt of the dimensions suitable for the new building which they proposed to erect. The defenders not being disposed to build or to alter their building in any way, declined the proposal.

After the lapse of some months, viz., in June 1897, the pursuers proceeded at their own hand to take down their property, with the exception of the mutual gable, which they allowed to stand. While leaving it to stand, they took no steps in the way of shoring or otherwise to prevent its falling. In the course of their operations it was discovered that the gable had been underbuilt at some time in an insufficient manner, the thickness of the underbuilding consisting only of bricks 6 inches in thickness, whereas the wall itself was 2 feet thick. The attention of the City Master of Works was called to the matter, and on

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a report to the Dean of Guild from a builder appointed by him that the gable was in a dangerous condition, and should be taken down at once, it was ordered by the Dean of Guild to be taken down, and the order was carried out. The order has not been put in evidence, but the defenders admit in the pleadings that an order was made, although they say that it did not go beyond ordering what was necessary for the public safety. Accordingly, they say that while the wall was taken down to that extent at once, a part of it to the height of one storey was left standing for some weeks, when it was taken down by the pursuers at their own hands without any authority from the Dean of Guild Court. The case was argued on that footing on both sides, and I think it must, as the proof and productions stand, be taken that the facts were as the defenders state. Even were it competent to consider some passages in the proof which since the debate have been brought to my notice on the part of the pursuers as leading to the inference that the order of the Dean of Guild Court must have been for the complete demolition of the wall, there are other passages which seem to point to a different conclusion, as where we find Barlas, the builder, saying that they first took down the wall to within 10 feet of the ground, when it was safe from falling, and that a week or a fortnight afterwards they took it down altogether. In the absence, however, of any direct proof of the terms of the Dean of Guild's order, I do not think we are justified in holding that it went beyond what the defenders say. But be that as it may, I do not think it is material to the case to determine what were the terms of the order made by the Dean of Guild. What happened after the wall was taken down is, in my opinion, sufficient to exclude the pursuers' claim.

If they had it in view to claim from the defenders a proportionate payment towards the cost of a new wall, they ought to have taken them along with them in what they proposed to do. That from first to last they abstained from doing. Without any communication with the defenders, they proceeded to excavate the ground to a level lower than the old foundation, and laid the foundation for the new wall at that lower level. The cost of this is included in the items to which they call on the defenders to contribute. Further, without consulting or communicating with the defenders, they went on to build the new wall of different thickness and of different material (brick instead of stone) from the old wall.

“Their new building was to be five storeys high instead of three as the old building had been, and they say that the thickness of the gable was dictated by the requirements of the building regulations of the city for a building of the contemplated height. The new material (brick), they maintain, was preferable to stone for a mutual wall with openings for chimneys. They may have been right in their view on these points. It is not necessary for the defenders to show they were wrong. But surely the defenders, if it was intended to hold them responsible for a share of the cost of the new wall, were entitled to be consulted as to its character. No request for their concurrence was made, although there was nothing to prevent the pursuers from communicating with them. There was certainly no express contract on the part of the defenders to share the expense, and I see no sufficient ground for inferring the existence of an implied contract to that effect. The principle of negotiorum gestio cannot be appealed to where there is no difficulty in consulting the parties for whom the negotiorum gestor assumes to act. Again, there was no such urgency for immediate action as justified the pursuers in taking the matter into their own hands. My conclusion is that they took the risk of the expense on themselves, and that no ground has been shown on which they are entitled to claim proportional reimbursement from the defenders.”

The pursuers appealed to the Court of Session, and argued—(1) On the question of jurisdiction—The objection to jurisdiction now came too late; an appeal should have been taken from the interlocutor of the Sheriff-Substitute before the proof was led. But the objection was not well-founded. The question raised involved the nature of parties' rights in regard to the wall, i.e., whether, on the one hand, it was a mutual wall, or, on the other, was a wall belonging to the pursuers in which the defenders had a common interest. That was a question of “heritable right or title”— Lamont v. Cunningham, June 11, 1875, 2 R. 784—within the meaning of section 8, sub-section 4, of the Sheriff Courts (Scotland) Act 1877 (quoted in rubric). Separatim, an action for half the cost of building a mutual wall was always competent in the Sheriff Court of the county in which the wall was situated, on the same principle on which it was held that an action for rent was competent in the Sheriff Court even although the defender was a foreigner— Mouat v. Lee, June 6, 1891, 18 R. 876; Thomson v. Wilson's Trustees, July 5, 1895, 22 R. 866. The principle that the Court of Session was the commune forum of foreigners was explained by Lord Justice—Clerk Inglis in Pirie & Sons v. Warden, Feb. 20, 1867, 5 Macph. 497, to rest solely on the fact that the Sheriff had not the power of edictal citation. That power had now been conferred upon the Sheriff (39 and 40 Vict. c. 70, sec. 9), and the doctrine was therefore no longer applicable. (2) On the merits—The judgment of the Sheriff-Substitute was right. On the titles this was a mutual gable. On the facts the gable was taken down by judicial authority, and not through any fault of the pursuer. If this had been a new gable, it was beyond question that the defenders, on taking the use of it, would have been bound to pay half the cost— Sanderson v. Geddes, July 17, 1874, 1 R. 1198; Robertson v. Scott, July 9, 1886, 13 R. 1127; Berkeley v. Baird, Feb. 16, 1895, 22 R. 372. The same principle applied in the present case. The pursuers were perfectly entitled to pull down their own property, and it was impossible to hold

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that by doing so they undertook an obligation to warrant the boundary wall against being pulled down by judicial authority. The maxim melior est conditio prohibentis did not apply to the case of mutual gables, which involved a common property of a very special kind. Either party was entitled to make alterations on the gable so long as these were consistent with its inherent nature and purposes— Walker v. Sherar, Feb. 4, 1870, 8 Macph. 494; Lamont v. Cunningham, June 11, 1875, 2 R. 784.

Argued for the respondents—(1) On jurisdiction.—The Sheriff had no jurisdiction here. The question was not really a question of heritable right or title, which only came in incidentally. The Sheriff Court Act 1877 did not apply to such a case, but only to cases where the main question related to heritable title. Mere possession of heritable property within a sheriffdom did not per se render the owner subject to the jurisdiction of the Sheriff in a personal action such as this— M'Bey v. Knight, Nov. 22, 1879, 7 R. 255; Commissioners of Pollokshaws v. M'Lean, Nov. 17, 1899, 2 F. 96. The Court of Session was the commune forum in a question with a foreigner — Gillan v. Parish Council of Barony Parish, Nov. 29, 1898, 1 F. 183. (2) On the merits.—On the facts the pursuers or their authors were responsible for the defective condition of the old wall. Even if that were not so, the defenders were quite content with the existing wall, and if the pursuers chose to take down their own property, they must do so at the risk of paying the whole expense. The principle of the rights of parties in a mutual wall was, as expounded in Sanderson v. Geddes, and Robertson v. Scott (both cited supra), that each party was proprietor of a half with a common interest in the whole. In such a position the maxim melior est conditio prohibentis applied, and if either party disturbed the gable he did so at his own risk.

At advising—