Scottish Court of Session Decisions

On October 6th 1906 John Henry Cowan Wilson, baker, 34 Main Street, Newhaven, raised an action against John Pottinger, builder, 127 Trinity Road, Edinburgh. The summons concluded—“Therefore it ought and should be found and declared … ( Primo) that the pursuer in virtue of his rights and titles is proprietor of all and whole that two-storeyed tenement, being Nos. 33 and 34 Main Street, Newhaven, in the parish of North Leith and sheriffdom of Edinburgh, consisting of a shop with flat above, together with bakehouse and oven behind the shop; and ( Secundo) that the defender has unwarrantably and illegally encroached upon the said property of the pursuer, by building beyond the west gable of the pursuer's said tenement, and above the ground heritably possessed by the pursuer, to the extent of 4 1 2 inches or thereby; and it being so found and declared the defender ought and should be decerned and ordained by decree of our said Lords to remove the said building erected by him so far as it encroaches upon the property of the pursuer beyond the west gable of the pursuer's said tenement.…”

The defender pleaded, inter alia—“(1) The pursuer's statements are irrelevant and insufficient to support the conclusions of the action. (2) The pursuer having agreed to allow the encroachment complained of on payment of compensation as the same should be determined, failing arrangement, by arbitration, is barred from raising the present action.”

The facts are given in the opinion ( infra) of the Lord Ordinary ( Guthrie), who, after a proof, on 1st April 1907 gave decree in terms of the first, second, and third conclusions of the summons, and continued the cause.

Opinion.—“The pursuer and defender are owners of adjoining buildings in Main Street, Newhaven. The pursuer built his house and shop of two storeys, with bakehouse and oven behind, in 1903, and the defender erected his four-storey premises in 1906. Both sites had been previously occupied by old buildings, jointly occupied on the lower floor, but divided by a wooden partition 9 inches thick. The pursuer's house lies to the east of the defender's.

When the defender built in 1906 he used the pursuer's west gable as his east gable to its full height, namely, two storeys. At an interview on 26th June 1906, and by letter of that date ( v. supra in rubric) it was arranged that the defender should obtain the further height required by him on the east by building on the top of the pursuer's west gable, compensation to be made as therein specified. Disregarding a stair, which, not being bonded into the wall, is not part of it, the breadth of the pursuer's west gable for a distance of at least 20 feet back from the street is 9 1 2 inches. The defender proposed to heighten that part of the gable by building on it to the same breadth, but the Dean of Guild Court in Leith insisted, through the Burgh Surveyor, that the additional height should be 14 inches broad. Instead of the defender making the necessary projection of 4 1 2 inches (being the difference between 9 1 2 inches and 14 inches) on his own side of the gable, he, unfortunately, resolved to build so that while the additional height was flush on his own side with the gable as built by the pursuer, it projected on the pursuer's side 4 1 2 inches—to that extent overlapping the pursuer's property. There were practical reasons in favour of this course, and the pursuer would have had no interest to refuse his consent had the matter been explained to him and his consent asked, on a proper offer of compensation. But, as I hold on the evidence ( v. opinions in Inner House where contrary held), the defender, without obtaining the pursuer's consent, proceeded to build his 14 inch extension so as to project 4 1 2 inches beyond the original gable, and over the pursuer's property. The pursuer objected, but the defender completed his operations in October 1906.

The pursuer now asks removal of the building erected by the defender on the top of the pursuer's west gable to the extent, namely, 4 1 2 inches, to which that building extends beyond the thickness of the pursuer's original gable, and over the pursuer's property. He, however, intimated at the proof, through his counsel, that he does not propose to enforce the decree, but desires only to obtain compensation.

The dispute is a lamentable one… But I must decide the questions brought before me on their legal merits, protesting at the same time that if it were competent I should dismiss the summons, without costs to either party, on the principle de minimis non curat prœtor.

The condescendence and defences raise three questions—(1) was there in fact an encroachment of 4 1 2 inches; (2) if so, was

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this authorised by the pursuer; and (3) if not authorised, is the pursuer entitled to a decree of removing.

As explained at the proof, although the defences do not make it clear, the defender admits that the pursuer's 9 1 2 inch gable, so far as heightened by him and thickened to 14 inches, projects to the extent of 4 1 2 inches over the pursuer's property. But he disputed the pursuer's right to decree, in terms of his second declaratory conclusion, because he maintains that the encroachment was not unwarrantable or illegal.

The defender claims the pursuer's authority for his operations, first, from what passed in conversation between them on 26th June 1906, second, on the terms of the letter of that date [ v. supra in rubric], and third, on the contents of the plans approved by the pursuer's docquet. As to the conversation alleged by the defender, his account is directly contradicted by the pursuer. As to the letter, an arrangement for heightening a gable may, so far as consistent with safety, authorise building beyond the area of the gable, but only on the builder's own side. As to the plans it is not proved that the alterations showing the thickened gable were on the plans when shown to the pursuer [ v. Lord President's opinion]. But even if they were, these alterations are not so drawn as to give reasonable notice of intended overlapping to a man like the pursuer, and the front elevation is inconsistent both with the ‘1, 2, and 3 flat plan,’ and with the roof plan.

The question of the appropriate remedy remains. Although reluctant to give decree of removal I do not think the pursuer has done anything to bar himself from the remedy claimed. As I read the oral evidence and the correspondence it is not proved that he ever consented to the defender's operations, or that he failed timeously to object to them, or that he led the defender to think that he would be content with compensation and would waive his legal right to removal. Thus I do not find the element of bar or acquiescence which, in one form or another, was involved in the series of cases commented on by Lord Watson in Grahame v. Magistrates of Kirkcaldy, 1882, 9 R. (H.L.) 91. To refuse the pursuer the remedy of removal would be, in Lord Watson's words, to give the wrongdoer compulsory powers to acquire part of his neighbour's property, which, in spite of remonstrance, he had illegally appropriated.’ …

In these circumstances I have given decree in terms of the first three conclusions of the summons, and with respect to the fourth conclusion, namely, the period within which the defender is to remove the encroachment, I have continued the cause till the first sederunt day in May next.”

On 4th June 1907 the Lord Ordinary pronounced this interlocutor:—“In respect that the defender has failed to remove the encroachment condescended on, and, further, that the parties have failed to agree as to the compensation to be paid in respect of said encroachment, or to the terms of an arbitration to fix the amount of compensation, therefore decerns and ordains the defender to remove the said encroachment within three months from this date, with certification that, failing his removing, as aforesaid, the pursuer will be entitled to get said removal effected at his expense, and continues-the cause.”

The defender reclaimed, and argued—The terms of the letter of permission showed that it was intended to provide for compensation rather than to make particular conditions about the method in which the wall was to be raised. (1) In these circumstances, and in view of the somewhat peculiar nature of the pursuer's western gable, the letter was a good warrant for raising the wall in any reasonable way. (2) Even if the projection of 4 1 2 inches was, strictly speaking, ultra vires, the case was not one for removal, since the projection had not been made without a colourable title, but on the faith of a letter which the defender bona fide believed gave him the necessary authority. In this respect the case was a fortiori of the cases commented on in Grahame v. Magistrates of Kirkcaldy, July 26, 1882, 9 R. (H.L.) 91, Lord Watson, at p. 91, 19 S.L.R. 893, viz.— Macnair v. Cathcart, May 18, 1802, M. 12,832; Sanderson v. Geddes, July 17, 1874, 1 R. 1198; and Jack v. Begg, October 26, 1875, 3 B. 35, 13 S.L.R. 17. The interlocutor of the Lord Ordinary should be recalled.

Argued for the pursuer (respondent)—The letter of June 26, to which the pursuer agreed, merely authorised building “on” his gable not “beyond” it. The onus was therefore on the defender to show that he had subsequently entered into some other agreement with the pursuer which authorised the encroachment now in question. This he had failed to do. The pursuer in signing the plans did not thereby consent to any such modification thereof as should be ordered by the Dean of Guild. The function of the Dean of Guild was to authorise building in a question with the builder, but his authorisation was of no effect as between the builder and an adjacent proprietor whose property was affected, without intimation being made to him or his consent being obtained. As to remedy, the defender had continued his operations in face of the pursuer's timeous objections, and the Lord Ordinary was right in giving effect to the dictum of Lord Watson in Grahame v. Magistrates of Kirkcaldy, ut supra, at 9 R. (H.L.) p. 93.