Scottish Court of Session Decisions

The trustees of the deceased John Pratt Anderson of Glentarkie presented a petition to the Dean of Guild Court, Glasgow, for authority to make alterations on their property situated at the corner of Argyle Street and Maxwell Street, Glasgow, and on the sunk area behind the same.

The property was erected in the beginning of the 19th century by Robert Muirhead & Co. The building consisted of six storeys, viz., a basement floor, a street floor of shops, and four floors above that. Immediately behind the building, on a level with the basement, there was a sunk area, that area being situated between the basement and a row of cellars. On the top of these cellars and on the level of the street floor there was a back area or court.

The building was conveyed to disponees by Robert Muirhead & Co. in floors, and in the conveyances the building was treated as consisting of three divisions, the east, the centre, and the west divisions. Hugh Hutcheson Gardiner, by virtue of two titles dated in 1817, was owner of the first and second flats above the shops or street floor in the east division, with the cellars 1 and 3; the petitioners by virtue of three titles dated in 1818 and 1819 were owners of the remainder of the east division, the whole of the centre and west divisions, and the cellars Nos. 2 and 4 and 5 to 12.

The plans produced by the petitioners showed that they, inter alia, proposed to cover over the sunk area opposite cellars 5 to 12, the covering being on a level with the back court.

Hugh Hutcheson Gardiner lodged objections to the granting of the lining. He produced his titles, which showed that Robert Muirhead & Co. had disponed to his authors the first and second flats of the east division of the tenement with the cellars No. 1 and 2, “together with the whole parts, privileges, and pertinents of the subjects so conveyed, and all right and title thereto or any part thereof in all time coming, with … free ish and entry to the said cellars by the common stair and sunk area on the south of the foresaid tenement, and also the use and privilege in common with the granters and their disponees of the court or area to be formed by the granters on the ground at the back of the foresaid tenement.”

The objector averred that the petitioners' titles, which were from a common author, contained similar provisions to his own, that the petitioners by their plans as lodged would interfere with his property and take permanent possession of common property or property in which he had a common interest, that the sunk area, part of which the petitioners proposed to cover over, had been peaceably and uninterruptedly used, possessed, and enjoyed by him and his predecessors for more than forty years as a part and pertinent of his properties for the purpose of providing free space, light, and air in connection therewith; and that the back court or area mentioned in the titles consisted of the whole free space behind including the sunk area.

The objector pleaded, inter alia—“(1) In respect the pleadings of parties disclose that a question of heritable title is involved as to which the parties are not agreed, and which this Court has no jurisdiction to decide, the present proceedings should be sisted until the respective rights of parties are determined by a court of competent jurisdiction.”

On 8th June 1903 the Dean of Guild pronounced the following interlocutor—“Find that, in connection with the sunk area behind the main building, over a part of which the petitioners propose to build, there is disclosed by the pleadings of parties a question of heritable right which cannot be entertained or decided by the Dean of Guild: Therefore to this extent sustains the first plea-in-law stated for the objector, and sists the proceedings in this matter for fourteen days to allow the petitioners, if so advised, to take proceedings to have the question of heritable right determined by a court having jurisdiction.”

The petitioners appealed, and argued—The averments of the objector did not disclose a question of heritable right sufficient to oust the jurisdiction of the Dean of Guild. The mere fact that the petitioners had not set forth an express title to the sunk area did not exclude the jurisdiction of that Court. The proprietor of the basement floor was as a general rule the owner of the adjoining area. It was for the objector to produce his title and to prove an interest and right to object to the proposed alterations— Smellie v. Thomson, July 9, 1868, 6 Macph. 1024. The Dean of Guild was entitled to look at the titles produced and see whether any question of property was raised. The objector had set forth no title of property in the sunk area, and was not entitled to plead want of jurisdiction— Pitman v. Burnett's Trustees, July 7, 1881, 8 R. 914, more fully reported 18 S.L.R. 659. All that the objector had relevantly averred was an interest in the area, and the Dean of Guild could competently deal with such a matter.

Argued for the objector and respondent—A competition as regards the property of the sunk area was raised in this process. The titles of the petitioners were similar to the objector's, and the petitioners were not the exclusive proprietors of the area. The objector, who averred common property in the area was therefore entitled to object to the proposed alterations— Sutherland v. Barbour, November 17, 1887, 15 R. 62, 25 S.L.R. 66. The objector averred property in the sunk area by reason of possession as a part and pertinent— Cooper's Trustees v. Stark's Trustees, July 14, 1898,

Page: 777↓

25 R. 1160, 35 S.L.R. 897. He maintained that this was a case of common property in an area belonging to several proprietors whose titles flowed from one author, and not merely a case where the objector had only a right of common interest in the area, as in Johnston v. White, May 18, 1877, 4 R. 721, 14 S.L.R. 472, or Barclay v. M'Ewan, May 21, 1880, 7 R. 792, 17 S.L.R. 558. A question of heritable right was clearly raised, which could not be disposed of in the Dean of Guild Court.

At advising—