Scottish Court of Session Decisions

Lord President (Clyde).—The Netherkirkgate is one of the ancient thoroughfares of the city of Aberdeen. It is a narrow street and the buildings on both sides of it are high. Two of the pursuers own property in the Netherkirkgate, and the third pursuer owns a tenement in Broad Street facing the entrance into it. The defenders also own two tenements in the Netherkirkgate, one on either side of that thoroughfare and directly opposite each other. For the more convenient use of these tenements in connexion with their business the defenders propose to erect across the Netherkirkgate, at a height of 47 feet from the level of its surface, an enclosed girder bridge 5 feet 4 inches in width and 9 feet in height.

The pursuers seek to interdict the erection of this bridge on two grounds. The first is that it will directly injure their properties by causing an appreciable interference with the light reaching their windows from the street. This ground is based on ownership, and (if sound) implies that a right to light from the street is a pertinent of the property in the tenements which abut on it. The second is that the erection of the bridge constitutes an illegal alteration in the character of the Netherkirkgate as a public street. This ground is based on the common interest in the street derived by individual members of the public community through the administrative trust under which the street is vested in the magistrates for their use. Findings in fact have been pronounced in the Court below affirming injury to the pursuers' property by deprivation of light, and deterioration of the street as a public and business thoroughfare. The evidence was fully canvassed before us, and I see no reason to disturb these findings in fact, or to doubt their soundness.

The defenders' answer is to deny the existence of any legal right on the part of the pursuers to derive light from any source beyond the boundaries of their properties, or any interest in the street except as a means of passage. This limited interest the defenders say will not be infringed by the erection of the proposed bridge; and there is no finding in the Court below that the interference with light in the street will be such as to make the use of the street for public passage dangerous or inconvenient. Nor do I think the evidence led would justify such a finding. It is a feature of the case—at once remarkable and embarrassing—that, while it is common ground between the parties that none of them owns any part of the solum of the street, there is neither admission nor proof as to who is the owner of it. Being situated in one of the oldest parts of the city it is probably the property of the Royal Burgh; but any decision of the case must regard the possibility that it may be vested in some person other than the burgh or the owners of the property abutting on it. The defenders found on the fact that the owner of the solum, whoever he may be, is not objecting to the proposed erection, and on a resolution of the Plans and Sewerage Committee of the Town-Council to whom the design of the proposed bridge was submitted for approval. This Committee, while reserving right to require the bridge to be removed at any future time in the event of its being expedient or necessary to do so, and without prejudice to the rights of third parties, offered no objection to the proposed erection. It should be explained that Aberdeen has no Dean of Guild Court. The committee's resolution must be taken as vouching at least a negative approval of the erection of the bridge by the administrative street authority of the city.

It cannot be denied that, in the erection of buildings on property fronting a public street, it is the inveterate practice to arrange them on the footing that the street is a natural source of light as well as of access. The high value of street frontage consists—de facto at any rate—not merely in the circumstance that the doors of the premises built upon it open on the street, but also in the circumstance that their windows obtain light from the open space provided by the street both ex adverso and on either hand. This is the first time that doubt has been thrown on the legal security of the advantages of situation hitherto supposed to attach to property which abuts on a public street. It is also the first time that the owner of frontage property on opposite sides of a street has asserted what I may call (in the language of the civil law) a jus protegendi between his properties over the street. If such truly be the right of the owner of two frontages on opposite sides, it would seem that the owners of frontage property on either side must also have what might similarly be called a jus projiciendi over the street, the limit of which would only be attained when the projecting structure reached the frontage line of the property on the other side.

That the owner of property abutting on the public street of a burgh has rights in the street as a source of light for his buildings was assumed in the argument, and I think also in the decision, in Magistrates of Montrose v. Scott . The street was irregular in form and, in part at least, of great breadth, with the Town Hall at one end of it. In front of the Town Hall the Magistrates proposed to erect an open piazza, to be used as an Exchange by merchants, whose goods could thus be sold under cover instead of being exposed to weather. Above the piazza there was to be an assembly and concert room. Scott, who owned property abutting on the street, asked and obtained interdict against the proposed building on two grounds. The first was that it constituted an encroachment on the public street which would have been illegal under the old law of purpresture. I pass this by in the meantime. But the second ground was that the proposed building would darken the windows of his property and inconvenience its access. This argument implied a right to light from the street as an open and uncovered space devoted to public uses; and it was evidently so understood in the later case of Ferguson v. Fall ((1776) M. voce Jurisdiction, App., Part I., No. i.—see at end). Again in City of Glasgow Union Railway Co. v. Hunter it was held that the obstruction caused—by throwing a railway bridge across Eglinton Street—to the light of Mr Hunter's property fronting that street was a proper subject for compensation. That could only be the case if the same obstruction, caused without statutory authority, would have been actionable at law; for this well-known limitation on the right to compensation had already been conclusively established in Ricket v. Metropolitan Railway, and is re-stated in Hunter's case (see per Lord Chancellor Hatherley, 8 Macph. (H. L.) at p. 160, 2 Paterson's Sc. App. at p. 1793). It is true that part of Mr Hunter's land had been taken; but, as Lord Chelmsford pointed out, “as no part of the property of the respondent has been injured by anything done on his land over which the railway runs” (that is to say, the construction of the bridge across Eglinton Street was neither on his land nor a consequence of anything done on it), “his right to compensation for damage appears to me to be precisely the same as if none of his land had been taken by the company.” This left the case free of any difficulty which might otherwise have arisen from the principle of In re Stockport Railway Co. as approved at a later date in Cowper Essex v. Local Board for Acton . The jury in

Hunter's case had given an indefinite sum of compensation for obstruction of light by the erection of the bridge and for the nuisance of noise and smoke anticipated as the result of the working of the railway; and the House of Lords set aside this slump-sum verdict on the ground that the latter claim was bad under Hammersmith Railway v. Brand . But, on the claim for obstruction to light, the Lord Chancellor is reported both in Macpherson's report and in Paterson's Scotch Appeals to have said this: “The railway bridge across the street may have been considered a cause of damage in one of two ways; it may have been considered a cause of damage in respect of obstruction to the street; or it may have been considered a cause of damage in respect of obstruction of light to the windows of the property; and it appears also that there was evidence before the jury with regard to damage done by the obstruction of light; and regard being had to the close proximity of the bridge to the remaining property, which was not purchased, belonging to the respondent, it is impossible to say [that the jury's] finding may not have included damage, properly assessable, in respect of positive injury occasioned in respect of free access of light and air to the windows of the remaining property” (8 Macph. (H. L.), pp. 161–162, 2 Paterson's Sc. App., at p. 1794). In like manner Lord Westbury said: “Whether [the claim in relation to the construction of the bridge] was brought forward as a head of injury by reason of the obstruction of the lights of the house and shop that were left in the possession of the pursuer, or whether it was on some other ground, I cannot say. If it was the former, namely, obstruction of light and air, I should say undoubtedly it was a legitimate head of claim” (8 Macph. (H. L.) at p. 166, 2 Paterson's Sc. App. at p. 1798). The case is also reported in the Law Reports ((1870) L. R., 2 Sc. & Div. App. 78), but in so condensed a form as to be of little or no service in considering the present question.

The defenders, however, point out that in no case has the right of the owner of a street-frontage to light from the street been positively affirmed after challenge; and I have not been able to discover any reasoned examination or formulation of the right in any of the books. The right is, in my opinion, one of the pertinents or qualities of property abutting on a public street, inherent in and inseparable from its situation, and rests on the same principles as those which were so fully discussed in Metropolitan Board of Works v. M'Carthy and in Lyon v. Fishmongers' Co., and applied in the Scottish case of Caledonian Railway v. Walker's Trustees .

Regarded merely as a means of public passage, the defenders do not deny the frontage owner's special right and interest in the street, as a right—if I may borrow Lord Skerrington's language in M'Robert v. Reid —“superadded to his public right.” They admit that, if the operations of any of the frontagers, either projiciendo or protegendo, were such as to make the street dangerous or inconvenient for public passage, other frontagers would have a legal right in their own interest to stop them—Scott v. Orphan Hospital . But this involves the admission, which I do not think could be withheld, that once a street has been laid out and made public, the right which the public has to use its superficial area includes a right to light for the street, as so laid out, from the space vertically above its surface. Even in the case of the lower right of a public right of way acquired by prescriptive use, a right to light from above has been recognised as controlling the right of the proprietor (across whose lands the line of the right of way runs) to cover it over—Allans v. Magistrates of Rutherglen . The defenders admit that, in this way, the frontage owners get—but only adventitiously—so much light for their premises as is required for the safety and convenience of public passage in the street itself; but, as has been pointed out, it is not proved that the construction of the bridge will constitute an obstruction to light so material as to make the street, as such, dangerous or inconvenient.

It seems very clear that the legal qualities of a street within a burgh are by no means exhausted by the description of it as an incorporeal public right of passage. It is called a street, a via strata, because it is laid out of a definite, though by no means necessarily uniform, breadth, which has no necessary relation to the requirements of mere public passage. Yet the public are entitled to use every part of its superficial area, however large; and that for purposes by no means limited to locomotion. The immemorial association of burgh streets with the town cross, the well, and the market, points to a wide range of public or communal uses—municipal, sanitary, and economic—served by the streets of a burgh, all of which are within the purposes of the administrative trust reposed in the magistrates, although those uses far transcend the conception of a street as a mere thoroughfare convertible, according to the defenders, into a tunnel, so far as that can be done without so darkening it as to make it dangerous or inconvenient as a means of passage. It seems to me that these public or communal street-uses are sua natura irreconcilable with any other conception of the street than as an open superficial area. The difference between a road affording communication from place to place and a street within burgh was described by Lord Mackenzie in Threshie v. Magistrates of Annan (8 D. 276, at p. 281), in these words: “A road is only for travelling, while a street is for markets and meetings, for a paved way between the houses, for conveying water and gas to the houses, and subject to the jurisdiction of the Magistrates, as much as the houses are.” In short, a burgh street, in addition to providing means of locomotion, serves the convenience of the urban community, and provides the indispensable accommodation for the urban occupation of the properties which abut on it.

There is nothing in this inconsistent with the view, so strongly insisted upon in M'Ara v. Edinburgh Magistrates, that public passage may legitimately be regarded as an object of street administration paramount above all others. The provision of a “paved way between the houses”—in other words, the provision of building frontages enjoying not merely access, but also light, air and prospect, from the street as devoted to communal uses—is by the very necessity of things one of the primary purposes of laying out streets in a city, and the key to the unrecorded history of our ancient burgh thoroughfares. All this reasoning (if it be sound) applies no matter in whom the solum of the street may be vested. For, as has been seen, the devotion of the superficies to the service of the burgh community carries with it the right to light and air from the space vertically above it. Most modern public streets are formed in accordance with the conditions of feudal titles. I do not remember ever seeing a case in which anything was expressly said about light and air from the street for the building frontages—surely an unaccountable omission but for the legal quality of a public street as an open space.

In the case of Galbreath v. Armour Lord Campbell, as a reductio ad absurdum of the doctrine that the soil of all highways is Crown property, said that, in that view, “if a proprietor for the accommodation of the public suffers a public road for horses, carriages, or foot-passengers to be established over his land, the property of the space which the road traverses is gone from him and his heirs from the centre to the sky, so that he loses all the herbage there may be upon the surface of it, with all the minerals under it, and he cannot connect the different parts of his intersected property by a tunnel under it, or by a bridge over it.” The defenders relied on this passage in support of their alleged right to bridge the Netherkirkgate. They are, of course, not proved to be owners of its solum. But it is right that I should say that, a street being in the nature of opus manufactum, the rights of those acquiring building frontages upon it must be measured according to the character of the street as actually laid out. If, as laid out or as immemorially existing, its capacity for serving the general uses of the community (properly met by an open street) has been restricted by its being bridged or covered over, it follows that anyone who acquires a building frontage on it must take the street in its actual condition as he finds it; and if the existing bridge obstructs the light of his frontage he has no remedy. But that is only saying that the situation of his property is relatively disadvantageous. It would not disentitle him to object to another bridge which obstructed his already damaged light—Wilson v. Richardson . Dalintober, the locality concerned in the case of Galbreath v. Armour, was not within any burgh, but was a populous place or town consisting of feus held of a common superior, and situated on a public highway which ran through the superior's estate. It is unnecessary to consider whether considerations analogous to those discussed above might not have applied to a proposal by two opposite frontage feuars in the town to throw a bridge across the public highway—even if it were assumed that the highway authority did not object, and that (for some reason or other) knowledge of the true ownership of the solum, of the highway had been lost. Nothing that I have said is intended to indicate any opinion to the contrary.

So far, therefore, as the pursuers' first ground of interdict is concerned, I think it is made out.

Then what of the second ground? It will be remembered that, in the case of Magistrates of Montrose v. Scott, the objection to the encroachment on the street (involved in the erection upon its surface of the pillars or supports of the open piazza) was supported on the principle of the old law of purpresture. The principle thus appealed to is much wider than the mere prohibition of acts causing obstruction to public passage on a street or highway. A concise statement of the law of purpresture is given by Lord President Sir James Balfour in his Practicks, at p. 442: “Purpresture is when any man occupies wrongously anything pertaining to Our Sovereign Lord the King … as in his domain, or in stopping of the common gaits or of any passages, or in turning water from the right course, or when any in the King's burgh occupies anything by building in the King's Street or common causeway, or away-taking or appropriating anything to his own particular use; and shortly, by doing anything to the noy and hurt of the King's tenants, the King's street, or the King's city.” Keeping in mind that the Sovereign was owner or guardian of public rights on behalf of all his subjects, it is clear that the principle of law underlying the doctrine of purpresture was that which prohibits any interference, by way of appropriation for private uses, with rights which are essentially public in character. That principle is, I apprehend, just as sound to-day as it was in the sixteenth century. All the public rights in a street (including the appurtenant right to have it left open to the sky), which are discussed in the former part of this opinion, are vested in the magistrates (vice the King), who hold them in trust for administration on behalf of all the members of the community. It follows that the beneficial interest of each individual member is a common interest along with all the rest, and that the rights (comprised in that common interest and belonging to each) must be all of precisely the same kind. A line of reasoning closely analogous to this was adopted by Lord Deas in Bennett v. Playfair, in dealing with the common interest of feuars in a lane to which they had access under their titles. There thus truly belongs to each member of the community of the city, and to each frontage owner in the street, an identical interest in the public thoroughfare, and also in the open space vertically above its surface as the source from whence it derives light. How can this consist with the alleged right of one or more of them to make a use of that space, whether projiciendo or protegendo, which (if it were also made by their neighbours under the same alleged right) would destroy the common interest of all in the space in question as the source of light for the street? Is not the proposed bridge just an interference with the public rights in the space above the street (qua source of light for the street) by way of the appropriation of part of it for private uses? I think it is; and as such it is an alteration in the character of the street which the pursuers are entitled to resist, apart from any proof of material injury to the lighting of the street. The defenders maintained that, in the absence of such proof, they could not be prevented from reaping the advantage which, as pioneers in projiciendo vel protegendo over the Netherkirkgate, they had secured—jure occupantis. But this ignores the fact that they and their fellow frontage owners have a common interest, not merely in the superficial area of the street, but in the space above it as the means of its illumination. That common interest they are not entitled to engross for their own purposes; nor can the administrative trustees—the magistrates of the burgh—who hold the public rights both in the street surface and in the superincumbent stratum of space for all equally, legalise such engrossment by declining to take any active steps to protect the equal rights of all.

I think, therefore, the pursuers' second ground is well founded also.

Lord Skerrington.—The defenders do not own any part of the solum of the public street over which they propose to build a gangway or covered passage for the purpose of forming a communication between their properties which abut upon the north and south sides of the street. Nor do they claim to have acquired, either by grant or by prescription, any right or interest in the space above the street different from, or higher than, the right or interest which belongs to the other frontagers in the same street, including two of the pursuers. The defenders' justification of their proposal to appropriate and monopolise a part of this space is purely negative. For some unexplained reason none of the parties to this litigation is able to identify the feudal owner of the solum of the street, and the defenders' counsel argued that, so long as such owner does not come forward and object, the other frontagers have no title and no legal interest to prevent their clients from enclosing and appropriating any portion of the space above the street which may happen to be vacant.

Netherkirkgate is one of the oldest streets in the City and Royal Burgh of Aberdeen, and it is still a thoroughfare of some importance. It is only 14 feet in width, and it is hemmed in by high buildings on each side, but it has never in the centuries of its existence been subjected to the indignity with which the defenders threaten it. The defenders' counsel did not attribute any legal virtue to the accident that the two properties which the bridge was designed to unite belonged to the same owner and were situated exactly opposite to each other. If their argument was worth anything, it would apply to the case of any two frontagers on opposite sides of a public street in any royal burgh who chose to think that it would be convenient—or, as the defenders' witnesses quaintly expressed it, “necessary”—to unite their properties by a bridge crossing the street either at right angles or diagonally.

Such being the nature of the dispute, I am disposed to think that it might have been decided in favour of the pursuers upon the simple ground that the parties to the litigation have identical interests in the open space above the street, and that, accordingly, none of them is entitled to invert the existing state of possession without the consent of the others. The opinions delivered by the Lord President (Robertson) and Lord M'Laren in the case of Taylor's Trustees v. M'Gavigan are very much in point. So also are the cases of Bennett v. Playfair and Mackenzie v. Carrick referred to by the Sheriff-substitute. In the view, however, which I take of the more general questions which were raised and elaborately argued, I do not think it necessary to form a definite opinion upon this somewhat technical point.

The first consideration upon which the defenders' counsel insisted in their attack upon the judgment of the Sheriff-substitute was the absence of any finding by him to the effect that the gangway, if constructed in the manner proposed by the defenders, would so darken the street as to obstruct the public right of passage. Indeed they maintained that it was not proved that the street would be darkened by the gangway to any appreciable or perceptible extent. This argument ignores the distinction between a public right of way on the one hand and a “regular” or “proper” highway on the other hand. The distinction between these two classes of public rights is well settled, and it would be a waste of time to do more than refer to three cases in which it was recognised and discussed—Sutherland v. Thomson, (1876) 3 R. 485, per Lord Neaves, at p. 489; Donington v. Mair, (1894) 21 R. 829, per Lord Justice-Clerk Macdonald, at p. 832; and Reilly v. Greenfield Coal and Brick Company, 1909 S. C. 1328, per Lord President Dunedin, at p. 1338. The public streets of a burgh fall within the second category. The explanation of the distinction is to be found in the exceptional character of a public right of way. It is essentially a qualified right, and, like a servitude, it must be exercised civiliter so as to injure as little as possible the property upon which it is a burden. If there is a dispute, the Court must reconcile as best it can the exercise of the private and of the public rights. The case of Allans v. Magistrates of Rutherglen, which was cited by the defenders' counsel, is interesting as showing how the Court of Session, with the approval of the House of Lords, reconciled the two conflicting rights by requiring each party to make a considerable sacrifice. A landowner, whose estate was intersected by a pathway which the public had used from time immemorial, proposed to arch it over for a distance of 60 feet. The Court considered that a tunnel of that length would be dark and dirty and a public nuisance, but they allowed him to build an arch which would be 15 feet long and which would therefore enable him to carry a private carriage road across the pathway. Considerations such as weighed with the Judges in the case of Allans are quite out of place in an action like the present—one which has to do with a regular highway. In such cases the Court does not recognise any right in the owner of the solum which can be allowed to conflict with the public right to use the highway. Another way of stating the same proposition is to say that the public right over a regular highway is absolute, and that it is not qualified as in the case of a public right of way. Any operation, therefore, by the owner of the solum or by any other unauthorised person which alters the condition of such a highway is prima facie an illegal interference with the rights of the public, irrespective of whether the change is productive of obstruction or of prejudice or of benefit to the public.

There may be cases to which the maxim de minimis is applicable. It cannot, however, be maintained as a general proposition that a street which has an unobstructed opening to the sky above it is to all intents and in the opinion of all men the same as a street which has that opening partially blocked up. The defenders have neither averred nor proved any special facts and circumstances from which the Court ought to infer that the pursuers, as members of the public and as frontagers, have not such an interest as gives them a right to insist upon the maintenance of the status quo. Again, while it may be true that the gangway will not appreciably darken the street at the present time, it may be otherwise in the future if the buildings on each side of the street should come to be heightened. Moreover, the pursuers have an interest to resist the erection of a building which, after it has stood for forty or possibly twenty years, may be held to have been sanctioned by prescription. The present case is, I think, governed by the principles which the Court applied in Scott v. Orphan Hospital, though the circumstances are different.

For these reasons I think that the operative part of the interlocutor appealed against would have fallen to be affirmed, even if it had not been proved that the proposed gangway would appreciably diminish the light which at present enters certain of the windows of the pursuers' properties. These three properties are situated within a very short distance (42 to 117 feet) from the place where the bridge will cross the street. Two of them front or abut on Netherkirkgate, while the third, though situated in Broad Street, faces towards Netherkirkgate and has its access from the west by that street. The defenders' counsel strenuously challenged the relevancy of this part of the pursuers' case, and the point is open, the proof having been allowed “before answer.” Counsel were, I think, mistaken in supposing that this ground of judgment involved the application of any new and different principle. An access which obstructs the light of the property which it serves is not the same as an access which causes no such obstruction. The compensation decisions both in Scotland and in England show that the owner of a house abutting upon a public street has a right which the law will recognise and enforce to the unobstructed enjoyment of the light and air which come to his house from that street. I may refer in particular to the case of City of Glasgow Union Railway Co. v. Hunter . Though the House of Lords reversed the decision of the Court of Session, there was no difference of opinion as to this matter between the Judges of the First Division and the noble Lords who sat in the appeal. This same principle was one of the grounds of judgment in a case decided by the Court of Session so long ago as 1688, where it was held that the owner of an “old land” in Edinburgh, which had a “fore-stair” built upon the public street, was not entitled to increase the height of the stair by carrying it up to the top of his house of seven storeys against the wishes of the neighbouring heritors, who objected that the building would obstruct their lights, make their chimneys smoke, and by its vicinity expose their properties to injury from fire and theft—

Wilson v. Richardson . No reason was suggested by the defenders' counsel why the undeniable de facto interest of a frontager in the light and air which come to his property from a public street should not be recognised and protected by the law. In laying out a street at the present day one of the primary objects is the provision of access, light, and air to private buildings, and it may be assumed that the same idea has consciously or unconsciously had its influence in the formation of the streets of the royal burghs. To assert, as did the defenders' counsel, that the owner of a house in burgh has no interest in the public streets, except to pass along them in the exercise of his public right of passage or his private right of access, is very like saying that a burgh street and a turnpike road are the same thing, though they came into existence in order to serve different purposes and are distinguishable both in fact and in law. As illustrating this distinction I may refer to the observations of the Lord Ordinary (Mackenzie) with which the Judges of the Second Division “entirely concurred” in Allan v. Swan, and of the Lord President (Boyle) and of Lord Mackenzie in Threshie v. Magistrates of Annan . Another distinction is that the management of the streets of burghs was vested by the common law in the Magistrates for the public benefit (Bell's Prin. sec. 660), whereas, as a rule, the management of a country highway was vested in a road authority for statutory purposes of a more limited character. In this connexion it may be noted that, in the case of a burgh street, dedication to the public may apparently be inferred from the layout of the ground as well as from prescriptive possession, per Lord Kinnear in Magistrates of Edinburgh v. North British Railway . This explains how a cul-de-sac may become a public place. I have perhaps unnecessarily laboured this point, because the defenders placed great reliance upon an obiter dictum of Lord Campbell in the case of Galbreath v. Armour, a case which raised no question as to the rights of frontagers, but was concerned exclusively with the now obsolete theory that public highways were feudally vested in the Crown. The roads or streets referred to in that litigation were not situated in a burgh of any kind, but were under the control of the county road trustees.

I am of opinion that the Sheriff-substitute's findings both of fact and of law ought in substance to be affirmed.

Lord Cullen.—The question raised in this case relates to a street in Aberdeen named the Netherkirkgate. The street is one of the most ancient streets in the royal burgh. At the part here in question it is narrow and is closely built, having on either side a continuous line of buildings of considerable height.

The defenders, Esslemont & Macintosh, are proprietors of business premises on either side of the street, which are opposite to one another. By their titles they own the solum contiguous with the street on which their respective buildings stand. They have no rights in the solum of the street itself, nor have they any servitude rights over that solum, nor over the street space above the solum separating the two lines of buildings and bringing to these and to the street light and air. They find, however, that, for the occupation and use of their two sets of premises, it is inconvenient to be restricted to the rights flowing from their own titles in their discontiguous tenements, and they desire to supplement these by appropriating to their private use and enjoyment a portion of the intervening upper space, over which they propose to construct a species of covered bridge at a height of 47 feet above the roadway, whereby to procure passage from the one set of their premises to the other.

The pursuers are proprietors of business premises in the vicinity; those of Messrs Donald and of Sangster & Henderson being in the Netherkirkgate, and those of Miss M'Killiam being in Broad Street opposite the debouchment on that street of the Netherkirkgate. The Netherkirkgate is the direct access to the premises of the first two pursuers, while it gives access from the west to those of the third named. The pursuers object to the making of the bridge, both as being an encroachment on the street and as being an encroachment on the rights which they maintain they, as proprietors, possess to derive light from the upper street space for the beneficial occupation of their respective properties.

It is clear that the defenders' proposed operation would not be an exercise of any legal right of their own. They do not own the solum of the street, and they do not hold any servitude rights in or over the street space which they propose to monopolise in part by making their bridge. As to the solum, the street is one in a royal burgh; but the argument which we heard proceeded, on both sides, expressly on the footing (1) that the ownership of the solum was unknown and unascertainable; and (2) that, while the magistrates were, in the interests of the community, vested with the street for administrative purposes—which the parties did not seek to define or elucidate,—it was not maintained that the solum belonged to them in pleno dominio. This may be unsatisfactory, and may not be a correct presentation of the legal position of the street, but on this topic we heard no discussion, both parties being content to proceed on the footing above mentioned.

The attitude of the magistrates towards the proposed bridge is that, without prejudice to any rights competent to third parties, they offer no objection to its construction, but reserve right to require its removal in the event of their finding it expedient to do so. Now, as the construction of the proposed bridge is, a priori, capable of affecting (1) the legitimate interests of the community in the street, and (2) possible legitimate interests of the pursuers as owners of their respective properties, the assent of the magistrates to the operation cannot be conclusive to displace objections to it springing from either of these two species of interest if made good. And I did not understand the defenders' counsel to maintain that it was. Under statute the magistrates of a burgh have many special powers, but at common law they have frequently been restrained from making or authorising encroachments, in one form or another, on the established interests of the community in the public streets, as, for example, in the cases of Magistrates of Montrose v. Scott and Scott v. Orphan Hospital . And I think it is equally true that if, and in so far as, the owners of properties abutting on a public street in burgh have, as such, rights either in the roadway giving access to their properties or in the street space above it bringing them light, the magistrates have no uncontrolled power at common law to take away or curtail these rights. And to do the magistrates in the present case justice, their assent to the construction of the defenders' proposed bridge was, as already mentioned, given without prejudice to any rights competent to third parties.

Accordingly, the defenders—rightly, as I think—did not in their argument put much or any stress on the non-obstans attitude of the magistrates. They contended (a) that the construction of the bridge would not encroach on the interests of the community in the street; (b) that the pursuers, as proprietors foresaid, have no legal right or interest in the upper street space above the roadway giving light to their premises, but merely enjoy the advantage arising from the de facto existence of the street space accidentally or precariously, and at the mercy of the owner of the solum of the roadway, who is to be held as having dedicated nothing more than the terra firma of the street and so much freedom of space above it as will enable passage along it and access from it to abutting premises to be obtained under reasonably safe and convenient conditions, and as having reserved to himself full right, quoad ultra, to deal with the street space above the roadway as he pleases, no matter how he may thereby prejudicially affect or destroy the value of buildings erected on the line of the street; (c) that while they, the defenders, are not the owners of the solum, the presumed unknown owner of it is the only party having any legal right to object to their proposed bridge on any ground not based on the general interest of the community in the street or the rights of access from the roadway as aforesaid; and (d) that, in any event, the pursuers, as proprietors foresaid, have no interest to sue, in respect that their lights would not be prejudiced by the construction of the bridge.

As regards what is to be held as included in the dedication of a street in burgh to the public, the defenders' argument treated the right of the public as merely one of passage along it. I do not accept this view. I do not think it true to the modes of user of such streets, historically or in modern times. The right of passage is no doubt a distinctive feature of a public street and may be the paramount one; but I do not think it is the only one. The streets of a burgh always have de facto, and I think de jure, subserved other public uses of the community, consistently with the due preservation of the right of passage along them.

I think it is proved that the particular bridge at present proposed by the defenders would not materially prejudice the public right of passage along the Netherkirkgate. It does not follow that it would not be of the nature of an encroachment on the street. It would alter the character and amenity of the street as one open to the skies. In the preservation of such openness of streets I think the community has a very natural and legitimate interest. It may be true that, if there would be an encroachment in the present case, the degree of it for the time being would be slight. The same might, however, be often said of encroachments on a street, as, for example, in the case of an encroachment by a proprietor of ground contiguous with a street who proceeded to advance his building only a very little way beyond the line of his frontage, so as to monopolise only a very little part of the width of the street without creating any material obstruction or inconvenience in the use of it for passage. The defenders are not here alleging any right peculiar to themselves to construct a bridge over the street. If they are entitled to construct such a bridge, so equally is any other person who happens to own buildings on the one side of the street and on the other, whether they stand vis-à-vis or not. And if this case were common enough, and such bridges were multiplied, the street would become, more or less, a tunnel. Now the defenders fully allow that a concourse of bridges so converting the street into a tunnel would be an encroachment on the interests of the community and could not be justified. On what principle, then, is the first instalment of such a possible tunnel to be justified any more than the last, merely because it happens to be the first, and, in itself, does not make the complete tunnel? I see none. It is the nature of the present intended operation, and not the degree of its effect, by which it falls, in my opinion, to be judged. I think that, at common law, the community in a burgh is entitled to have open public streets preserved from being converted into covered-in passages or tunnels, and I can see no good reason why their right of objection should not prevail at the outset of such a process as well as at further stages of it, just as their right of objection would, I take it, prevail at the beginning of encroachment, though slight, in the case already figured of a contiguous proprietor advancing his building beyond his own frontage.

As regards the special rights, if any, of the pursuers, as proprietors foresaid, in the preservation of the open upper street space which brings them light, the first proposition of the defenders is that, in the case of such a street in burgh, one must conceive the dedication of the street as severely confined to the terra firma, and a limited right in the space above it sufficient to secure that the terra firma will be and remain safe and convenient for passage along it and for access to abutting premises, in respect of the absence of direct physical obstruction and also in respect of sufficiency of light. If these conditions are satisfied, the ownership of the solum of the dedicated street carries with it, they say, a plenum dominium in the upper street space, validating any species of operations by the owner in his own interest within it, no matter how much these may prejudice the lights of the abutting tenements and impair or destroy their value. Thus, in the present case, if the supposed unknown owner of the solum acquired buildings on the line of the street, he might, in the pursuit of his own interests, do many things easily figured—say for advertisement purposes—which would entirely block the lights of the upper floors of his neighbours, so long as he stopped short of prejudicing the passage along, and access from, the roadway below. Or, without such acquisition of buildings in the street, he might do the same thing from the air by ingenious use of modern inventions. The defenders' counsel courageously accepted all such possible consequences of their proposition. If the proposition were true in law, it would introduce an element of precariousness into the enjoyment and value of properties abutting on public streets which has not hitherto been realised. But I do not think the proposition true. It is a usual incident of a public street, such as we are here dealing with, that it should have buildings along the line of it, and such buildings may be even said to be invited. And it seems to me, as a matter of good sense and also of good law, that the dedication of such a street, or its established public character, includes the devoting of the street space above the terra firma to the use, in point of light inter alia, of the buildings lawfully erected along the line of and abutting on it. I am not aware of any authority justifying the defenders' proposition. They appealed mainly to the case of Galbreath v. Armour . That case, however, had to do with operations in the solum of a road objected to by the proprietor thereof. And I doubt its application to the case of the solum of a public street in burgh under present-day conceptions, which call for operations of many kinds in the solum in order to procure good sanitation and other conditions incident to the ordinary comfortable enjoyment of properties subserved by such operations.

There remains the question whether the pursuers, under the head of their case which relates to the lights of their respective premises, have a sufficient interest to sue. The Sheriff-substitute has not found in fact that the construction of the bridge would prejudicially affect the lights of the premises belonging to Sangster & Henderson. On this point his judgment has not been challenged. He has found in fact that there would be prejudice to the lights of the premises belonging to Messrs Donald and Miss M'Killiam, and with this finding I agree, although I think the question a somewhat narrow one. The Sheriff-substitute, who heard the witnesses, has devoted to it a very painstaking attention and much ability. His conclusion was traversed in a full and able argument, and I have given the evidence repeated and careful consideration. In the result, I do not see any sufficient grounds for differing from the Sheriff-substitute's conclusion.

I accordingly concur with your Lordships in holding that the appeal should be dismissed.