Scottish Court of Session Decisions

This was an action of declarator and interdict at the instance of James Hinton Robertson and others, as trustees for the firm of J. M. & J. H. Robertson, writers, Glasgow, against John Wilson Bruce, accountant, Glasgow, craving] for declarator (1) that the partners as heritable proprietors of the subject 120 Bath Street, Glasgow, have a right of common interest in the subjects disponed to Nathaniel Stevenson, of Braidwood, by Alexander Campbell, of Bedlay, in the year 1830; (2) that the pursuers are entitled to prevent the successors of the said Nathaniel Stevenson from erecting thereon any buildings except to replace existing buildings, or alternatively from erecting any buildings on the ground described as part and pertinent of the upper flat disponed to Nathaniel Stevenson of a greater height than 12 feet; (3) that the staircase No. 144 Wellington Street, Glasgow, belongs in property to the pursuers, subject only to a right of access in favour of the defender to the upper flat of the tenement and the cellar entering thereby, and the defender is not entitled to make any alterations on the staircase or any part thereof.

The summons contained corresponding conclusions for interdict.

The following narrative is quoted from the opinion of the Lord Ordinary ( Kincairney):—“This is an action between two proprietors of a tenement in Glasgow,

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with background and cellars, which is bounded on the south by Bath Street and on the west by Wellington Street. The common author Alexander Campbell, seems to have erected the tenement in or about 1822, and in 1830, or about that time, to have converted it into two houses. In 1830 Campbell sold one house to Nathaniel Stevenson, predecessor of the defender, and in 1831 the other house to A. G. Lang, the pursuers' predecessor.

“The disposition to Lang bore to convey to him an area of ground consisting of 1042 square yards and 6 square feet, bounded on the north by the centre of a meuse lane, on the south by the centre of Bath Street, on the east by property belonging to Robert Craig, and on the west by the centre of Wellington Street. But from this conveyance there is the following exception:—‘Excepting the second or upper flat of the said tenement situated on the north side of Bath Street and the east side of Wellington Street, together with access thereto by a street door from Wellington Street, and the cellarage on the sunk floor and plot of ground adjoining to Wellington Street, which belongs as part and pertinent to the said second or upper flat, all as then possessed by William Buchanan conveyed by me to Nathaniel Stevenson.’

“The subject excepted in favour of Stevenson is thus described in the disposition by Campbell to him:—‘The second or upper flat of the tenement situated on the north side of Bath Street and the east side of Wellington Street, together with access thereto by a street door from Wellington Street, and the cellarage on the sunk floor and plot of ground adjoining to Wellington Street, which belongs as part and pertinent to the said second or upper flat, all as then possessed by William Buchanan, which tenement was erected upon all and whole the area or piece of ground consisting of 1042 square yards and 6 square feet or thereby.’

“The disposition in favour of the defender's predecessor contains this clause by which the pursuers say there was constituted a real burden on the property sold:—‘Declaring always,… that for the utility and ornament of the house to be erected on the said steading of ground, and of the other houses forming the compartment or division to which it belongs, these presents are granted with and under the following provisions, regulations, and conditions … Quarto—No building of any kind in the background shall be higher than 12 feet from the level of the ground to the ridge of ths roof thereof; it being understood, however, that the west front of the lodging to be erected on the steading of ground above described, that is, its front to Wellington Street, may be built upon as high as to correspond with the height of the other lodgings built upon the compartment to which it belongs.’

“This action has been raised by the owners of the subjects first described against the owner of the subjects described secondly; and the conclusions with which it is necessary to deal are these—(1) for declarator that the pursuers are entitled to prevent the defender from erecting on the ground described as part and pertinent of the upper flat disponed to Stevenson, and belonging to the defender, that is to say, on the area marked ‘Back Court’ on the plan, any buildings of a greater height than 12 feet; (2) for declarator ‘that the staircase No. 144 Wellington Street, Glasgow, belongs in property to the pursuers … subject only to a right of access in favour of the defender and his successors to the upper flat of the tenement and the cellar entering thereby, and that the defender or his foresaids are not entitled without the pursuers' consent to make any alterations on the said staircase.’”

The pursuers pleaded (1) that as proprietors in the same tenement with the defender they had a common interest in the background, and that they were entitled to declarator and interdict in respect that the use proposed to be made of it by the defender was injurious to their interest and in violation of the restrictions contained in the titles; (2) that they were proprietors of the staircase, and that the defender, who had only a right of access thereby, should be interdicted from altering or interfering with it.

The Lord Ordinary allowed parties a proof of their averments, and, after a proof had been taken, on 20th December 1904 pronounced an interlocutor assoilzieing the defender from the conclusion for declarator of property in the staircase, and from the conclusion for declarator of right to prevent the defender from erecting any buildings on the background of a greater height than 12 feet.

Opinion—[ After the narrative of the circumstances quoted supra, his Lordship proceeded as folloros]:—“The questions then are these two—Are the pursuers entitled to decree of declarator (1) that they are proprietors of the staircase, and (2) that the defender is not entitled to erect buildings of a certain height on the area marked ‘Back Court’ on the plan.

“The staircase is not mentioned in the titles, but it is fully described in the proof. It is certainly built on part of the 1042 square yards and 6 square feet which are described in the pursuers' title, and is therefore included in that title if it be not excluded by the exception, and the question therefore is whether it can be held to be included in the exception.

“It is a staircase which is entered from the street door in Wellington Street mentioned in the title. It has 31 steps, and leads to ‘the second or upper floor,’ conveyed by the disposition by Campbell to Stevenson. By the same door access is had to the defender's back ground and cellarage. The staircase was probably built when the tenement, originally a single house, was converted into two houses about 1828 or 1830 or thereby. It was not a part of the original building, but is a building which has been added to the original building.

“It would not have been of any use as a part of the original building, and is admittedly of no use at present to the pursuers.

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It leads to no part of their tenement or ground. But it is absolutely essential to the defender, who has no other access to his upper flat, and by whom and his predecessors it has been used for that purpose for more than forty years. The access to the staircase is by the door in Wellington Street. That door was frequently shut, and people desirous of reaching the upper flat were in use to pull a bell, which communicated with an interior door to the flat at the top of the staircase, when the outside door was opened if shut, and the visitors to the upper flat were admitted to the staircase. No one but the owner of the upper flat had the means otherwise of getting access by the outside door except by means of a key. There is no doubt at all that the possession and use of the staircase had, since it was built, been altogether with the defender and his predecessors. The pursuers have never taken any benefit from it, or incurred any expense in connection with it.

“But such reasoning is open to question, and it must be admitted that it is not easy to hold that the staircase is included in or described by the words of the disposition.

“It was argued that the words in the defender's title, ‘with access thereto,’ that is, to the upper flat by a street door from Wellington Street, were adverse to the defender's case, and tended to show that his right in the staircase was a right of access, not of property. But it seems to me that the argument may be turned the other way, for the words are that the access is by a door, not by a staircase, and it might be argued that they imported that when once a man has passed the access he was within the subject itself, and therefore it might be suggested that the staircase was part of, and was included, in the upper flat.

“I do not say that there is much in that suggestion, but it seems to support the view that these descriptions are far from clear, and admit of a reference to usage in order to interpret the title; and if once resort is had to usage, as interpreting the title, no question remains, because the usage is all one way; and I think that the words are susceptible of the meaning, although it must be admitted to be strained.

“The pursuers referred to the case of Taylor v. Dunlop, 1st November 1872, 11 Macph. 25, which was an action between the predecessors of the present parties about this very property. It did not, however, relate to the staircase but to the roof of this upper flat. The question in this case was not debated or stated. But the titles were before the Court, and certainly the Lord President expressed the opinion that the pursuers' predecessor was the proprietor of the staircase and that the predecessor of the defender was not; although I do not think that the other Judges expressed that opinion. But in that case there was no proof, and the Lord President's opinion was only an opinion on the titles without any reference to the facts which have been brought forward in this case as interpreting the title; and if the titles only were looked to, and the facts were not inquired into, there could be no hesitation in preferring the pursuers' title. But when the history and structure of the building and the possession and use of it are taken into consideration, I hold that the primary meaning of the language is displaced, and that it may receive an interpretation in accordance with the facts.

“As to the other point, namely, the declarator that the pursuers are entitled to prevent the defender from erecting buildings of a greater height than 12 feet on their back area, I understand that that is the only part of the more complicated conclusion on which the pursuers ask a decision. I have quoted in my opinion the clause in the disposition on which it is founded, and I must admit that I fail to understand it, having in view the qualifying clause as to the frontage to Wellington Street and the fact that the buildings along Wellington Street and Bath Street are high buildings, much higher than 12 feet. The clause is an old one, taken from the earlier titles of 1822 or thereby, and since that date there appears to have been a great many tenements erected in that locality. I do not feel warranted in saying that the provision is ineffectual on account of these buildings, but I am of opinion that the declarator asked differs materially from the provision in the defender's title, and is not warranted by it.

“The case is full of minute and intricate details which have a bearing on the main questions. But it would be out of the question to examine them minutely in this opinion. I have done my best to consider and understand them, but I can do no more than indicate the main grounds of my judgment.

“On the whole I am of opinion that declarator cannot be pronounced affirming the pursuers' right of property in the staircase—it is not essential that I should pronounce any judgment as to the defender's right—and that the titles do not warrant the decree of declarator asked, that the pursuers are entitled to prevent the defender from building on the area specified buildings above 12 feet high.”

The pursuers reclaimed, and argued—All that was given to the defender's author was a right of access by the staircase, and whatever was not given to him passed under the disposition to the pursuers' author. No amount of possession will convert a servitude into a right of property. In the titles the access was kept distinct from the conveyance of property, and is not included in a general clause of parts, pendicles, and pertinents. The title was already the subject of decision in Taylor v. Dunlop, 10 Macph. 25, 10 S.L.R. 26. Authorities cited— Walker's Trustees, 3 S. 288 (N.E. 202); Leck v. Chalmers, 21 D. 408; Bell's Principles, 10th edition, sec. 984.

Argued for the defender—The defender had all along had the exclusive right of access and possessed as proprietor; the staircase was carried as a “part and pertinent”; it had no other purpose except to give access to the upper flat, the defender's property, and it fell within the area of

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background attached to the upper floor. The reason that access was mentioned in the titles was that the pursuers and their authors possessed the solum of the street outside the door at the foot of the stair, so that anyone entering the stair must cross their property. As to the proposed buildings on the background, even if the pursuers had a title to object, they were barred by acquiescence in previous violations of the alleged restrictions. Authorities cited— Magistrates of Perth v. Earl of Wemyss, 8 S. 82; Earl of Fife's Trustees v. Cuming, 8 S. 326; Gregson v. Alsop, 24 R. 1081, 34 S.L.R. 811; Cooper's Trustees v. Stark's Trustees, 25 R. 1160, 35 S.L.R. 897; Macdonald, v. Newall, 1 F. 68, 36 S.L.R. 77.

At advising—