Scottish Court of Session Decisions

Arthur Porter, 70 Cambridge Street, Glasgow, proprietor of the dwelling-house No. 11 Great Western Terrace, Kelvinside, Glasgow, presented a petition to the Dean of Guild Court of Glasgow for a warrant and decree of lining authorising him to make certain alterations in order to increase the occupancy of the house.

Robert V. D. Campbell and others, the marriage-contract trustees of Mr and Mrs Alexander Campbell, proprietors of the adjoining dwelling-house No. 10 Great Western Terrace, and James William Anderson and others, the testamentary trustees of James Whitelaw Anderson, the superiors of the subjects forming the said Great Western Terrace, lodged objections.

The facts as found by the Dean of Guild were as follows:—“( First) that the petitioner is proprietor of the subjects No. 11 Great Western Terrace, Kelvinside, Glasgow, which consists of a dwelling-house of four storeys and attics and basement hitherto occupied as a single house or establishment; ( Second) that he proposes to make certain alterations thereon, all as shown on the plan, in order to increase the occupancy of these subjects; ( Third) that the alterations proposed, and for which the petitioner now asks authority, are shown coloured red and blue on the said plan; ( Fourth) that the alterations are entirely internal, and if carried out will not in any way alter or affect the structure or elevation of the existing building, and that the alterations proposed will allow of its being occupied by four independent and separate occupiers but will not prevent it at any time being again put into a single occupation; ( Fifth) that the proposal of the petitioner is opposed by the superiors and the proprietor of No. 10 Great Western Terrace; ( Sixth) that the objectors maintain that the proposed alterations are an infringement of the petitioner's title …; ( Eighth) that the subjects belonging to the petitioner were feued under a feu-contract between James W. Anderson, manufacturer in Glasgow, on the one part, and Robert Young, merchant in Glasgow, on the other part, dated 1st and 5th August, and recorded G.R. (Barony and Regality of Glasgow) 16th December 1874 … ( Ninth) that under the said feu-contract it is provided that the said Robert Young binds and obliges himself and his heirs and assignees ‘to build, complete, and finish a self-contained lodging with a sunk area of 12 feet in breadth, with retaining walls of said sunk area and the carriageway and retaining walls thereof hereinafter referred to, all conform to the elevation and other plans showing the exterior workmanship prepared by Messrs Alexander and George Thomson, architects in Glasgow, and subscribed by the parties as relative hereto, and thereafter to maintain and uphold in good condition and repair in all time coming, and to rebuild and form the same upon the same foundation or site, if and when necessary, and of the same height, elevation, and outward style of architecture, and of the like class or quality of external material, and of the same style of workmanship with the said lodging: Declaring that in construing the preceding clause with reference to the erection or rebuilding of said lodging it shall be read so that the external architecture of said lodging shall correspond in all respects with the architecture of the rest of the terrace, and shall line with steading number one of said terrace, and shall be at

Page: 154↓

the west end of the terrace the counterpart in style, height, and frontage of the lodging at the east end of said terrace, and the buildings which may be erected between the said lodging and the meuse lane formed on the said boundary of said steading shall line with the said meuse lane and shall be used only for private stables or offices attached to the said houses, or for the residence of the coachman or other servants, and shall not exceed in height above the level of the said meuse lane 20 feet in the side walls nor 24 feet to the ridge of the roofs, and declaring that the houses, buildings, and walls to be erected on the said steading of ground shall be of stone, and the front wall and the west gable of the said lodging shall be of polished ashlar, except the sunk storey in the front wall which shall be dabbed ashlar, and the back wall shall be of coursed rubble or striped ashlar, or, in the option of the builder, of any superior style of workmanship; that the roofs of all buildings which may be erected on the said steading shall be covered with slates and shall not be covered with thatch or tiles; which conditions and restrictions before written as to the erection, maintenance, rebuilding, and occupancy of the buildings erected or to be erected on said steading shall operate as real liens, burdens, and servitudes upon the said steading of ground and the buildings to be erected thereon in favour not only of the first party and his successors in the superiority, but also of the other steadings of said Great Western Terrace, and each of them, and of the feuars and disponees therein;’ ( Tenth) that the said feu-contract contains further provisions as to building lines of the houses, iron railings, pavements, gas lamps, &c., and clauses prohibiting the carrying on of certain trades and from occupying any buildings erected on the ground as a shop, warehouse, or store, but does not contain any further clause expressly regulating or bearing upon the use or occupation of the lodging to be erected on the plot feued.”

The objectors pleaded, inter alia—“2. The proposed alterations being an infringement of the petitioner's title the petition for lining should be dismissed. … 5. The alterations proposed by the petitioner being in contravention of the building restrictions in his own title and in the vassal-objector's title which were inserted in both as part of a common building scheme, and the vassal-objector having an interest to enforce the same as before narrated, the petition should be dismissed.”

On 9th October 1922 the Dean of Guild found in fact ut supra and in law, inter alia, that on a sound construction of the petitioner's title the proposal of the petitioner would not be a contravention or infringement of, and was not prohibited by, the petitioner's title, and therefore repelled the objections and granted the lining craved.

The objectors appealed, and argued—The proposed alterations were a contravention of the obligation in the feu-contract to build and maintain a self-contained lodging— Montgomerie-Fleming's Trustees v. Kennedy, 1912 S.C. 1307, per Lord President (Dunedin) at p. 1314, 49 S.L.R. 925, at p. 929. The cases of Buchanan v. Marr, (1883) 10 R. 936, 20 S.L.R. 635, and Miller v. Carmichael, (1888) 15 R. 991, 25 S.L.R. 712, were distinguishable. Counsel also referred to Colquhoun's Curator Bonis v. Glen's Trustee, 1920 S.C. 737, 57 S.L.R. 623; Mathieson v. Allan's Trustees, 1914 S.C. 464, 51 S.L.R. 458; Ewing v. Hastie, (1878) 5 R. 439, 15 S.L.R. 263; Ewing v. Campbells, (1877) 5 R. 230, 15 S. L.R. 145; Fraser v. Downie, (1877) 4 R. 942.

Argued for the respondent—Restrictions on the right of property were not to be readily inferred— Russell v. Cowpar, (1882) 9 R. 660, 19 S.L.R. 443. The proposed alterations were not a contravention of the obligation in the feu-contract to build and maintain a self-contained lodging. The case was governed by Buchanan v. Marr; Miller v. Carmichael. Lord Dunedin's dictum in Montgomerie-Fleming's Trustees v. Kennedy had reference to occupation only. Counsel also referred to Holroyd v. Edinburgh Magistrates, 1921, 1 S.L.T. 259; Anderson v. Dickie, 1915 SC (HL) 79, 52 S.L.R. 563; Walker's Trustees v. Haldane, (1902) 4 F. 594, 39 S.L.R. 409; Colville v. Carrick, (1883) 10 R. 1241, 20 S.L.R. 839; Banks & Company v. Walker, (1874) 1 R, 981, 11 S.L.R. 566.