Scottish Court of Session Decisions

On February 15, 1905, Mrs Catherine Isabella Murray, St Margaret's Tower, Strathearn Road, Edinburgh, and Patrick Blair, Writer to the Signet, Edinburgh, testamentary trustees of the late David Murray, Deputy-Controller of Excise for Scotland, raised an action against Agnes Dunn, St Margaret's Convent, Edinburgh and others, trustees for St Margaret's Convent, Edinburgh, and George Alexander Wilson, 3 Hope Park Crescent, Edinburgh. In it the pursuers, inter alia, sought that “(1) it ought and should be found and declared, by decree of the Lords of our Council and Session, that the unbuilt-on area of ground situated on the east of the pursuers' property of St Margaret's Tower, Strathearn Road, Edinburgh, which unbuilt-on area forms the westmost portion of the subjects feued to the Right Reverend James Gillis, Doctor of Divinity, Bishop of Limyra, residing at Greenhill Cottage, Edinburgh, by the trustees of Mrs Ann Grant, widow of Francis Grant, of Kilgraston, conform to feu charter, dated 23rd, 27th, and 29th January and 1st February 1858, and instrument of sasine following thereon, recorded in the Particular Register of Sasines for the sheriffdom of Edinburgh, &c., 17th February 1858, is subject to valid and binding restrictions enforceable by the pursuers against the erection of any buildings other than villas or self-contained dwelling-houses, and against the erection of any buildings otherwise than in general conformity with the feuing plan of the estate of Whitehouse referred to in the said feu-charter and instrument of sasine and also in the pursuers' titles; and that the defenders the trustees of St Margaret's Convent are bound to insert or validly refer to the said restrictions in all feus, dispositions, or other deeds to be granted of or affecting the said unbuilt on area, and that the said unbuilt-on area is also subject to a ser vitude constituted in favour of the pursuers‘ said property of St Margaret's Tower against the erection of any building of an unseemly description or within 30 feet of the boundary of the pursuers’ said property; (2) it ought and should be found and declared by decree foresaid that the buildings delineated on certain plans lodged by the defender George Alexander Wilson in the Dean of Guild Court, Edinburgh, relative to an application by him now depending before the said Court for warrant to erect the buildings delineated on the said plans, are in contravention of the said restrictions or one or other of them, or of the said servitude, and that the defenders are not entitled to erect the buildings delineated on the said plans, or to erect on any part of the unbuilt-on area of ground situated to the east of the pursuers’ property flatted tenements of any description.…”

The pursuers were proprietors of St Margaret's Tower, a large villa residence, which was bounded on the north and west by St Margaret's Convent and grounds, the property of the first-named defenders. Both properties were originally parts of the estate of Whitehouse. The second named defender was, in virtue of certain missives of feu between him and the first — named defenders, proposing to erect on the latter's ground, immediately adjoining the pursuers' property, a block of tenements with regard to which the pursuers averred—“The tenements are to be four storeys in height, and the end of one of them and the back of the other will face the pursuers‘ property, which will thus be directly overlooked at a distance varying from 30 to about 46 feet by about 60 windows, mostly from kitchen sculleries and closets, with

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the usual accompaniments of external pipes, larders, and clothes-lines. The proposed buildings will utterly destroy the amenity of the pursuers’ property and seriously depreciate its value.”

The pursuers’ property had been feued out in 1855 to Mr David Murray, their author, by feu charter granted by the trustees of Mrs Grant as proprietors of the estate of Whitehouse, which was followed by instrument of sasine recorded in the same year. The feu charter described the property as bounded in certain ways, “and on the east by the unfeued portion of the lot of ground marked No. 2 on the feuing plan of said lands of White-house, but declaring that the superiors shall not be bound by the said plan in feuing out the remaining portions of the estate further than by a general conformity thereto,” consisting of “the lot delineated on said feuing plan and marked No. 1 thereon, and a portion of the lot also delineated and marked No. 2 thereon,” and the feuar was taken bound “to erect upon the said plot or piece of ground hereby disponed a good and substantial dwelling-house or houses of the value in all of Eight hundred pounds at the least, a plan and elevation of such erections being previously exhibited and approved of by us or by our successors or by an architect to be employed by us or them for that purpose before any such building is commenced, in order that the buildings to be erected may be built in a neat and substantial manner, without prejudice to the said David Murray or his foresaids thereafter erecting one or more dwelling-houses and suitable offices in addition to those above mentioned on the said grounds, the plans being in like manner previously submitted to and approved of by us and our foresaids; … and in the event of the said building or buildings or any part thereof being burnt down, the said David Murray shall be bound to rebuild the same in the. same style or according to a new plan to be submitted to and approved of by us or our foresaids, and such new building or buildings shall not be of a less expensive description than those which he is hereby bound originally to erect; and it is also hereby provided and declared that the said David Murray shall be bound and obliged to enclose the plot or piece of ground hereby disponed in so far as this is not already done with a substantial stone dyke of at least five feet in height and neatly coped, excepting that along that portion of the ground which lays contiguous to or adjoins the public street or road, and to the extent of the front of the house or houses to be erected thereon, the enclosure may be by a parapet of dressed stone not exceeding three feet in height, having an iron railing on the top of it, the said David Murray and his foresaids being bound to uphold the said enclosures when erected in good and substantial repair : … And it is further provided and declared that the ground hereby disponed lying around the house or houses to be built by the said David Murray shall be formed into a garden or shrubbery, which shall be kept and maintained as such or in grass in a neat and proper manner, and shall be put or diverted to no other purpose except with the consent of us or our foresaids first had and obtained; and in the event of the said David Murray or his foresaids being at any time desirous of erecting stables on the piece of ground hereby disponed, they shall be entitled to do so only by building them adjoining to and in connection with the dwelling-house or houses to be erected by him or them, or if they are desirous of building them detached therefrom they shall be bound to place and construct the same according to a plan to be submitted to and approved of by us or our foresaids, or by any architect to be named by us, and which stables shall in either case be built in such a manner as shall not interfere with the view or amenity of any of the adjoining feus : Declaring, as it is hereby expressly provided and declared, that in feuing out the grounds lying on the south side of the foresaid street or road bounding the subjects hereby disponed on the south, we and our foresaids shall, in addition to an obligation to enclose with a parapet wall and railing in front of the dwelling-houses, insert in the feu-charter or other feu rights to be granted in favour of the vassals in the lots marked Nos. 13, 15, and 16 on the foresaid feuing plan a clause expressly binding the feuars in the said lots to place the fronts of the dwelling-houses to be built thereon facing towards the said street or road, and prohibiting the feuars from placing the fronts of the dwelling-houses in any other direction, and also prohibiting them from erecting any offices or outhouses betwixt the dwelling-houses to be built on the said lots and the said street or road: And it is also hereby provided and declared that no distilleries, manufactories, breweries, candleworks, tanworks, kilns, or steam-engines, shall he erected, allowed, or carried on either by us or our successors or assignees or by the said David Murray and his foresaids upon or adjacent to the piece or plot of ground hereby disponed or on any other part of the said lands of Whitehouse, or any other work or manufactory which can be reckoned a nuisance to the public or to the neighbouring feuars or proprietors; nor shall any dunghills be collected for sale or for any other purpose than the improvement of the foresaid plot or piece of ground. …”

The property of the first named defenders had been feued out in 1858 by feu-charter granted by the same superiors to the Right Reverend Doctor James Gillis, which was followed by instrument of sasine duly re-recorded in the same year. The feu-charter described the ground as bounded in certain ways, “and on the west by the ground feued to David Murray, which forms part of the plot of ground marked Number Two on the feuing-plan after mentioned … which piece of ground is marked or delineated on a feuing-plan of the said lands of Whitehouse, made out by George Smith, Esquire, architect in Edinburgh, and is

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composed of the eastmost portion of plot marked Number Two on said plan, the whole of plots marked Numbers Three, Four, and Five on the said plan, and the triangular piece of ground, not numbered, lying immediately to the east of the said plot of ground marked Number Five on said plan, the said feuing-plan being hereby referred to for no other purpose whatever than as showing the position of the ground hereby feued: Provided always, as it is hereby provided and declared, that no more than four dwelling-houses or villas shall be erected on the said piece of ground, and that a plan and elevation of such erections shall be exhibited to and approved of by us or by our successors, or by an architect to be employed by us or them for that purpose before any such buildings are commenced: And it is also hereby provided and declared that the said James Gillis and his foresaids shall be bound and obliged, before commencing any operations, to enclose the piece of ground hereby disponed, in so far as not already enclosed, with a substantial stone dyke at least five feet in height and neatly coped, except along that portion of the ground which lies contiguous to or adjoins the public street or road on the south side of the said ground hereby disponed, along which street or road there shall be built by the said James Gillis and his foresaids a parapet of dressed stone not exceeding three feet in height, having an iron railing on the top of it, or a stone wall having a neatly droved cope, the said James Gillis and his foresaids being bound to uphold the said enclosures, when erected, in good and substantial repair … And in the event of the said James Gillis or his foresaids being at any time desirous of erecting stables or other offices on the piece of ground hereby disponed they shall be bound to place and construct the same according to a plan to be submitted to and approved of by us or our foresaids or by any architect to be named by us, and which stables or other offices shall in either case be built in such a manner as not to interfere with the view or amenity of any of the adjoining feus : And it is also hereby provided and declared that there shall be no distilleries, manufactories, breweries, candle works, tanworks, kilns, or steam-engines erected, allowed, or carried on either by us or our disponees upon or adjacent to the piece or plot of ground hereby disponed, or any other work or manufactory which can be reckoned a nuisance to the public or to the neighbouring feuars or proprietors, nor shall any dunghills be collected for sale or for any other purpose than the improvement of the foresaid piece of ground…”

In 1858 an agreement was entered into between Bishop Gillis and Mr Murray whereby Mr Murray agreed to convey to the Bishop a piece of his ground and to come under certain obligations, and the Bishop also undertook certain obligations and to convey to Mr Murray a piece of his ground. The eighth head of agreement was—“The Bishop to engage that he will not erect on the said ground belonging to him on the east of Mr Murray's property any building of an unseemly description or nearer than thirty feet from Mr Murray's eastern boundary wall.” Both parties agreed when required to grant any deeds which might be necessary to carry out the agreement and in fulfilment of this certain deeds were subsequently executed.

The disposition granted by Mr Murray was dated in 1863, and proceeded on the narrative that it was granted, inter alia, in consideration “… that the said Right Reverend Doctor James Gillis has also implemented the other obligations incumbent on him by the foresaid memorandum of agreement, and in particular has delivered to me in exchange for these presents a disposition by the trustees hereinafter mentioned in my favour of part of the ground formerly occupied by him as a tool-house, and also a bond of servitude of same date by the said trustees in my favour over certain subjects now belonging to them.”

The bond of servitude dated 21st and recorded in the Particular Register of Sasines 30th September 1863, granted in favour of Mr Murray by Bishop Gillis and others as trustees and heritable proprietors of the subjects acquired in feu by Bishop Gillis in 1858, inter alia, provided—“And in the second place we hereby bind and oblige ourselves and our successors in all and whole that triangular piece of ground, part of the lands of Whitehouse, lying in the parish of St Cuthbert's and sheriffdom of Edinburgh, bounded as follows—… and on the west by the ground feued to the said David Murray, which forms part of the plot of ground marked Number Two on the feuing plan of the said lands of Whitehouse, made out by George Smith, Esquire, architect in Edinburgh, as the said subjects are more particularly specified and described in an instrument of sasine therein in favour of me, the said Right Reverend Doctor James Gillis, recorded in the said Particular Register of Sasines, &c., the seventeenth day of February Eighteen hundred and fifty-eight: That we and our foresaids shall not erect on any part of the said triangular piece of ground any building of an unseemly description, or nearer than thirty feet from the said David Murray's eastern boundary wall: And we declare that the said servitudes and obligations shall be perpetual on us and our foresaids, and shall be real burdens upon our lands affected by the same respectively : And in order to make these servitudes and obligations more effectual against the subjects before described, so far as they are respectively affected thereby, and without prejudice to the before-written grant of servitudes and obligations, but in corroboration thereof, we bind and oblige ourselves and our foresaids to cause the said servitudes and obligations to be inserted or validly referred to in all future investitures, dispositions, and other conveyances of the said subjects, or any part or portion thereof, so far as they are respectively thereby affected; otherwise such investitures, dispositions, or conveyances shall be null and void: And we grant absolute warrandice : And we consent to registration

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for preservation and execution, and in the General or Particular Register of Sasines, &c., for publication.”

The pursuers pleaded—“(1) The defenders' property mentioned on record being subject to the restrictions and servitude also therein mentioned, the pursuers are entitled to decree in terms of the first conclusion of the summons. (2) The buildings proposed to be erected by the defenders on the property in question being in contravention of the said restrictions, et separatim of the said servitude, decree should be granted in terms of the second, third, and fourth conclusions, with expenses. (4) The defender Wilson has no title to enable him to resist the conclusions of the action.”

The defenders pleaded—“(1) As regards the restrictions in the charter of 1858, no title to sue. (3) The erection of the proposed tenements not being struck at by either the restrictions in the charter of 1858 or the bond of servitude, the defenders are entitled to absolvitor.”

On 10th November 1905 the Lord Ordinary ( Ardwall) pronounced the following interlocutor—“Finds and declares ( First) that the unbuilt-on area of ground situated on the east of the pursuers' property of St Margaret's Tower, Strathearn Road, Edinburgh, which unbuilt-on area forms the westmost portion of the subjects feued to the Right Reverend James Gillis, Doctor of Divinity, Bishop of Limyra, residing at Greenhill Cottage, Edinburgh, by the trustees of Mrs Ann Grant, widow of Francis Grant of Kilgraston … is subject to a servitude constituted in favour of the pursuers’ said property of St Margaret's Tower against the erection of any building of an unseemly description or within 30 feet of the boundary of the pursuers’ said property : Quoad ultra assoilzies the defenders from the first conclusion of the summons : ( Second) Finds that the buildings delineated on certain plans lodged by the defender George Alexander Wilson in the Dean of Guild Court, Edinburgh, relative to an application by him now depending before the said Court for warrant to erect the buildings delineated on the said plans, are in contravention of the said servitude, and that the defenders are not entitled to erect the buildings delineated on the said plans or to erect on any part of the unbuilt-on area of ground situated to the east of the pursuers' property aforesaid flatted tenements of any description: ( Third) Interdicts, prohibits, and discharges the defenders from erecting the buildings for which warrant has been craved as aforesaid. …”

Opinion.—“In this case the representatives of the late David Murray, a feuar on the Whitehouse estate, Edinburgh, seek to prevent the trustees of St Margaret's Convent, who are the representatives of the late Bishop Gillis, another feuar on the White-house estate, from erecting on feus belonging to them a number of tenements. They seek to do so upon two grounds. In the first place, the pursuers maintain that under the titles of their feu and the titles of the defenders' feu immediately to the east, a mutual obligation was laid upon the feuars (a) to adhere to the feuing plan of 1852, and ( b) not to erect buildings on their feus other than villas or self-contained dwelling-houses. I am of opinion that upon this ground the pursuers have failed on the titles to establish their case. In the first place, in the pursuers’ feu-charter it is declared ‘that the superior shall not be bound by the said plan in feuing out the remaining portion of the estate further than by a general conformity thereto;‘ further, there is no obligation undertaken by the superior to insert a reference to the feuing-plan in the titles of any other feus that might be given off by him; and in the feu-charter granted to the defenders in 1858 of the ground lying immediately to the east of the feu granted to Mr Murray the feuing-plan is not referred to in any way as obligatory either upon the superior or vassal. In this state of the title I do not think it can be held that the feuing-plan binds either of the parties to erect nothing but villas on their feus. It is noticeable that the pursuers' feus, Nos. 1 and 2, are represented on the feuing-plan as altogether free of buildings, whereas there are villas of various shapes, sizes, and designs delineated on all the other feus, and as appears from the record a continuous range of dwelling-houses has been erected on the feus opposite the pursuers' feu. It is, however, only right to say that these houses resemble villas in their character and height, and have plots of garden ground in front and behind.

“Coming now to the conditions in the feu-charters, it appears from the pursuers’ feu-charter that while the feuar is taken bound to erect on the ground a certain good and substantial dwelling-house or houses of the value of £800 at least upon a plan to be approved of by the superior, that obligation is to be without prejudice to the feuar thereafter erecting one or more dwelling-houses and suitable offices in addition to those before mentioned, the plans thereof to be similarly approved of by the superior. Then again, while it is provided that the ground lying round the house or houses to be built by the pursuers should be formed into a garden or shrubbery, the deed goes on to say that the said ground shall be ‘kept and maintained as such or in grass in a neat and proper manner, and shall be put or diverted to no other purpose except with the consent of the superiors.‘ Under both of these clauses it must be noticed that the conditions of the feu which alone seem to limit the use of it to the site of a villa residence surrounded by garden ground can be dispensed with by the superior, and if he can dispense with it in the case of the pursuers it is clear that other feuars on the estate could not enforce it, so the idea of mutuality of obligation seems to be altogether out of the question in the present case (see Turner v. Hamilton, 17 R. 494), and it does not affect this question of mutuality that the feuars in a question with the superior are bound to have the conditions inserted in future investitures. In the defenders' feu-charter of 1858 the

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conditions are not exactly similar, but there is nothing in it to shew mutuality of agreement between the different feuars. On the contrary, all the obligations seem to be in favour of the superior alone. The only clauses in the respective feu-charters which can in any way he said to establish a mutuality of obligation are the clauses in each feu-charter with regard to stables, which provides in nearly identical words as follows:—‘ And which stables shall in either case be built in such a manner as shall not interfere with the view or amenity of any of the adjoining feus.’ There is, however, no question here as to the building of stables, and apart from that I think it is impossible to maintain that there is any mutuality of obligation between the feuars in respect that under their own title the pursuers are not bound in a question with the defenders to erect nothing but villas on their feus, but may erect what dwelling-houses they please, provided they obtain the consent of the superior, and if they are thus under no binding obligation to the defenders I think it follows that the defenders are under no mutual obligation to them. If under the feu-charters there is no mutuality of obligation imposed, it seems to be unnecessary to inquire whether the defenders, as now superiors of the piece of ground which they have disponed or intend to dispone to the defender Wilson, who intends to build tenements thereon, are under any liability in consequence of their failure to insert clauses in Wilson's charter similar to these in their own charter, for in the view I have taken the provisions in the defenders' feu-charter are of no avail to hinder the defenders or their disponee erecting what tenements they please on the ground belonging to them.

The second ground, however, on which the pursuers ask declarator and interdict against the erection of the proposed tenements on the ground to the east of their feu is a memorandum of agreement and deeds following thereon. That agreement was entered into under the following circumstances:—The pursuers' author, Mr Murray, having a long frontage to Strathearn Road, was proceeding to build a villa on lot No. 1 of his ground, which adjoins St Margaret's Convent, and on the other hand apparently Bishop Gillis was proposing to erect a verandah or other building adjoining the west wall of Mr Murray's property and exceeding the height thereof. In this way the privacy of the convent on the one hand and the amenity of Mr Murray's feu on the other were being endangered, and by this time Bishop Gillis had acquired all the ground on the Whitehouse estate to the north of Strathearn Road and to the east of the pursuers' feu. In this state of matters the memorandum of agreement was entered into, under which Mr Murray surrendered the south-west portion of his feu, with the house in course of erection thereon, and the Bishop undertook to remove a circular building to the south-east corner of the convent grounds, and to convey the site to Mr Murray. It further provided that no buildings were to be re-erected on the ground conveyed to the Bishop of more than one storey in height, that no buildings or erections of any kind of the character of a cottage or dwelling-house were to be placed on the adjoining bowling-green belonging to Mr Murray, and further, that no building of an unseemly description or nearer than thirty feet from Mr Murray's eastern boundary wall was to be erected on the ground to the east of Mr Murray's property. This agreement was formally implemented in 1863 by the various deeds granted respectively by Mr Murray and Bishop Gillis’ successors as owners of the subjects on both sides of Mr Murray's feu. … It is sufficient to say that the whole deeds carried out the said agreement, and the object of that agreement was to secure in all time coming the amenity of the respective parties' properties for their mutual benefit. The deed which is applicable to the present question is a bond of servitude, dated 21st and recorded 30th September 1863, under which, inter alia, the defenders bound and obliged themselves and their successors in the triangular piece of ground acquired in feu in 1858 lying to the east of Mr Murray's subjects in the following terms :—‘ That we and our foresaids shall not erect on any part of the said triangular piece of ground any building of an unseemly description, or nearer than thirty feet from the said David Murray's eastern boundary wall,’ and the question for decision now is whether the buildings, the plans of which form No. 21 of process, and which are described in the condescendence, are unseemly buildings within the meaning of the said bond of servitude. I am of opinion that they are. The phrase ‘unseemly building' must be construed with reference to the position and surroundings of the building, and (in a question of servitude) in view of the effect of its erection upon the dominant tenement. Now, the pursuer's house is a large and ornamental villa named St Margaret's Tower. It stands nearly in the centre of a garden, shrubbery, and policies considerably larger than are generally found in connection with a villa. It has a bowling-green attached to it, and altogether may be described as a small rus in urbe. Now, it appears to me that to erect tenements such as those shown on the plans No. 21 of process up to within ten yards or thirty feet of the pursuers' boundary wall would have the effect of completely destroying the amenity of the pursuers’ house and grounds. These tenements are aptly described as follows:—‘ … [quotes averment as to tenements given supra …],’ and I am of opinion that, having regard to the locality where they are to be erected, viz., a villa locality, and their proximity to the pursuers’ handsome villa residence and grounds, they must be regarded as unseemly buildings within the meaning of the bond of servitude.

Even if I had any serious doubt on the question as to the meaning and application of the word ‘unseemly' in the circumstances under consideration, I should hold in dubio

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that the word and the clause in which it occurs must be so interpreted as best to carry out the intention and meaning of the parties in entering into the agreement and deeds following thereon. That intention undoubtedly was to preserve the amenity of the pursuers’ residence, and that intention would be frustrated were the tenements in question to be erected on the site proposed.

I am accordingly of opinion that the pursuers are entitled to interdict against the erection of the said buildings.

—I was referred to the following cases:— Hislop v. MacKitchies Trustees, January 23, 1881, 8 R. (H.L.) 95, 19 S.L.R. 571; Johnstone v. The Walker Trustees, July 10, 1897, 24, R. 1061, 34 S.L.R. 791; Spottiswoode v. Seymer, March 2, 1853, 15 D. 458; Duke of Montrose v. Stewart, March 27, 1863, 4 M'Q. 499; Hope v. Hope, March 20,1864, 2 Macpli. 670; Fraser v. Downie, June 22, 1877, 4 R. 942; Thomson v. Alley & Maclellan, December 22, 1882, 10 R. 433; Walker & Dick v. Park, February 22, 1888, 15 R. 477, 25 S.L.R. 346; Turner v. Hamilton, February 21, 1890, 17 R. 494, 27 S.L.R. 378.”

The defenders reclaimed, and argued—There was no restriction as to building flatted tenements on any part of their ground, or, alternatively, the area to which it was sought to apply such restriction, if there was one, was too wide. The Lord Ordinary was right as to there being no restriction enforceable by the pursuers in the titles, but had held that any tenement, no matter of what structure, was an unseemly building in contravention of the servitude. An interdict based on this finding and applied to the whole 3 1 2, acres possessed by the defenders was too wide. This was a restriction upon the use of land, and such restrictions must be in very precise terms, whereas the present was vague and general, falling to be construed contra proferentem— Middleton v. Leslie, May 23, 1894, 21 R. 781 (per Lord Kinnear, 786), 31 S.L.R. 658. Persons under obligation to erect “a good and substantial dwelling-house” had been held entitled to build tenements— Assets Company, Limited v. Ogilvie, December 8, 1896, 24 R. 400, 34 S.L.R. 195. The restriction in the servitude should be construed strictly, the presumption always being in favour of the freedom of the ground. The Lord Ordinary's interlocutor should be recalled and the defenders assoilzied.

Argued for the pursuers and respondents—The ground in question here was restricted, if not under the original titles, at least under the bond of servitude as the Lord Ordinary had held. “Unseemly” was not an absolute but a relative term and fell to be construed with reference to the context and surrounding circumstances. The buildings first erected had been put up under titles which made express provision for securing their amenity as between superior and vassal. In the present case the agreement between Mr Murray and Bishop Gillis in 1858, followed by the deeds implementing it in 1863, showed a clear intention to preserve the amenity of the style of house then existing on the subjects, viz., villa property, as between conterminous feuars. The question as to what class of building was struck at by the servitude was truly a jury question, and no jury sitting at the time of the constitution of the servitude could have come to any other conclusion than that the tenements of the sort now proposed were a breach thereof.

At advising—