Scottish Court of Session Decisions

The Botanic Gardens Picture House, Limited, Glasgow, petitioners, the proprietors of certain subjects at the corner of Byres Road and Observatory Road, Hillhead, Glasgow, bounded on the west by property belonging to Dr R. O. Adamson, being desirous of erecting a picture house on their property, applied to the Dean of Guild Court of the City of Glasgow for a lining. The application was opposed by Dr Adamson and certain proprietors of dwelling-houses in the immediate neighbourhood of the petitioners ground, respondents.

The ground upon which the petitioners proposed to erect the picture house and the lands upon which the respondents' and objector's houses were built were portions of a feu of a part of the lands of Horselet-hill, Kelvinside, which was granted in 1868 by the Kelvinside Estate Company to the Heritable Securities Investment Association, Limited. The feu-disposition contained prohibitions (which applied to the ground upon which it was proposed to erect the picture house) against “exercising, carrying on, or erecting or setting down upon or within the said lands hereby disponed, or any part thereof, or the buildings erected or to be erected thereon, or any of them, any trade, business, process, occupation, or manufacture, or any building that shall be hurtful, nauseous, or noxious, or occasion disturbances to the houses or inhabitants in the said lands,” and against buildings being occupied “as shops, warehouses, stores, or places for the sale of goods or commodities of any kind.” These prohibitions were created real burdens in favour of the granter and his heirs and successors and also in favour of his feuars and disponees past and future, and the feuars and disponees past and future of his authors in the lands of Horselethill, and were appointed to be fully inserted in all future deeds relating to the lands feued or any part thereof.

In 1873 the part of the feu upon which the petitioners proposed to erect the picture house was acquired from the original disponees by William Reid by a contract of ground annual. This piece of ground was marked “A” in the plan which was used for the purposes of the case, and is so referred to in this report. The contract of ground annual contained the following conditions, restrictions, &c., inter alia—“Declaring further that the said second party” ( i.e., the said William Reid) “shall be bound to erect on the said plot of ground and thereafter to maintain and uphold in good condition and repair in all time coming, and to rebuild upon the same foundations if and when necessary, two tenements of dwelling-houses, one of which shall front Victoria Street now (Byres Road), and the other shall front Victoria Street and Observatory Road, consisting of a basement storey and three square storeys above, conform to plans to be approved of by the first

Page: 417↓

party;… and further declaring that in the event of the second party failing to erect the foresaid tenements in the manner above stipulated, or to maintain and uphold the same as aforesaid, or contravening any of the conditions, provisions, restrictions, declarations, obligations, and others before written or referred to, these presents and all that may have followed thereon shall in the option of the first party or their fore-saids be void and null, and the said plot of ground and buildings thereon shall revert, fall, and belong to the first party or their foresaids without the necessity of any declarator of law whatever.” It also contained an obligation by the disponers to insert in all dispositions of other parts of the original feu clauses “similar” to the above, and a declaration that the conditions, restrictions, &c., were real burdens and were to be inserted in all future transmissions of the subjects. This ground annual was discharged in 1876.

In 1876 by another contract of ground annual William Reid acquired from the original disponees another portion of the original feu. This deed contained the following building conditions:—“Declaring further that the houses to be erected on the said ground shall front Observatory Road and Saltoun Street and the said intended road,… and so far as fronting Observatory Road and the said intended road they shall consist of self-contained houses or tenements of flatted houses containing not less than five rooms and kitchen: Declaring that there shall be no shops on any part of said ground fronting any of the said streets”—but contained nothing referable to the restrictions in the deed of 1873 and did not bind the disponee to insert the conditions in future transmissions of the subjects. Part of this portion of the original feu was disponed in two separate portions to a firm of builders by William Reid by two contracts of ground annual dated in 1880 and 1881. These portions were marked “C” and “B” respectively in the plan which was used in the case, and are so referred to in this report. In the deed of 1880 the lands “C” were disponed with and under “the whole real liens, reservations, burdens, servitudes, conditions, and others so far as applicable specified and contained in” the feu-disposition of 1868 and the contract of ground annual of 1876; the disponees were taken bound to erect buildings within certain specified times “in conformity with the provisions of the titles”; the burdens, conditions, and restrictions contained in the deed were declared to be real burdens upon the ground in favour of William Reid and his successors as proprietors of the remainder of the ground disponed by the deed of 1876 (“including “B”) and also as proprietors of the ground disponed in 1873 (“A”), and were appointed to be inserted or validly referred to in all future transmissions of the subjects; the disponer and his successors in the remainder of the ground conveyed by the deed of 1876 (including “B”) were restricted as regards buildings to be erected by them thereon to self-contained lodgings or tenements of flatted houses, consisting of not less than five rooms and kitchen; the disponer and his successors as proprietors of the ground disponed under the deed of 1873 (“A”) were declared not to be entitled to erect thereon any buildings other than those permitted in that deed. These restrictions were declared to be real burdens over the remainder of the ground disponed in 1876 (including “B”) and of the ground disponed in 1873 (“A”) in favour of the disponee under the deed of 1880 (viz., the disponee of “C”), and as such were to be inserted or validly referred to in all future transmissions of the ground disponed in 1876 and 1873. The contract of ground annual of 1881 contained similar references to the deeds of 1868 and 1876 for the burdens and also a reference to the deed of 1880; the disponees were taken bound to erect within a certain time buildings similar to those erected by them on “C.” These burdens, conditions, and restrictions were declared to be real burdens in favour of William Reid and his successors in the ground disponed by the deed of 1876 (“C”) and that disponed by the deed of 1873 (“A”), and were appointed to be inserted in all future transmissions of the subjects. There was also a declaration that William Reid and his successors in the ground disponed in 1873 (“A”) should not be entitled to erect thereon any buildings other than those permitted by that deed.

The petitioners had acquired the ground disponed in 1873 (“A”) from the successors of William Reid by a contract of ground annual dated in 1922 under, “in so far as respectively applicable thereto and still subsisting and not discharged or departed from,” the whole real burdens, servitudes, conditions, restrictions, prohibitions, declarations, &c., specified in the feu-disposition of 1868, and the contracts of ground annual of 1873 and 1876, and under additional obligations to erect thereon a picture house or dwelling-houses of not less than four rooms and kitchen, which were declared to be real burdens on the subjects conveyed.

The parties averred, inter alia (the part printed in italics being added by way of amendment in the Inner House)—“(Objection 3)… The erection and use of the petitioners' proposed buildings as a picture house are such as would be hurtful and occasion disturbance to the houses and inhabitants in the said lands. The petitioners in addition to selling in their premises tickets for seats in their picture house will sell teas, sweetmeats, programmes, &c. Having regard to the prohibitions, burdens, restrictions, and others above set forth and to the uses to which they are to be put, such buildings are expressly forbidden. The principal entrance to the picture house as provided on the plans is from Observatory Road at a point close to the respondent's front gate. The formation of queues of people seeking admission to picture houses is from time to time a regular incident of the business carried on in such houses and is inseparable therefrom. Such queues are regularly attended by street singers, entertainers, and vendors of papers

Page: 418↓

and sweets, who add to the noise and disturbance and general inconvenience set up by the presence of large numbers of persons collected in waiting queues. Having regard to the fact that Byres Road is a busy thoroughfare, queues of persons awaiting admission to the proposed picture house would extend from its entrance westwards, and would create obstruction at the front entrance to the respondent's premises. Further, the principal exit from the proposed picture house gives upon the narrow lane between it and the respondent's premises. The respondent's house abuts upon the said lane, and serious hurt and disturbance would be caused to the respondent by reason of the crowds of people who would necessarily depart from the picture house by the said lane, causing disturbing noise. ( Ans. 3) Denied that the erection and use of the petitioners' proposed buildings as a picture house would be hurtful and occasion disturbance to the houses and inhabitants of said lands, and that such buildings are forbidden by the titles. With reference to the averments of the objector allowed as an amendment, it is admitted that the principal entrance to the proposed picture house, as provided on the plans, is from Observatory Road, and that the respondent's house abuts upon the lane between the picture house and the respondent's premises. Quoad ultra denied. Explained that if any queue of persons entering the picture house were required it would be formed along Byres Road, and would be entirely along that part of Byres Road which is fronted by the picture house itself. Explained further that the lane between the picture house and the respondent's premises is intended only as an emergency exit from the picture house, and would not be used by persons leaving the picture house except in a case of fire or other danger.” (Objection 4)—[After narrating the contract of ground annual of 1873]—“… This deed restricts the buildings to be erected on petitioners' ground to a certain type as above shown, and so far as being in the nature of shops entrances are only to be from Byres Road. The petitioners' proposed buildings are a breach of these restrictions.” (Objection 6)—[After narrating the contract of ground annual of 1881 and certain conditions therein contained]—“… The said William Reid was at the date of this contract proprietor of both the lands forming Grosvenor Crescent ( i.e., part of the ground disponed in 1876) and the lands now eld by the petitioners, and granted the restrictions last mentioned affecting the petitioners' area in favour of the Grosvenor Crescent proprietors. Taking the restrictions contained in the contract of 1873 in conjunction with those averred under objection 5 ( i.e., in the contract of ground annual of 1876) and this objection and referred to in the following objection, and having regard to the rights of parties inter se created by the said William Reid, the respondent and objectors (so far as owning properties in Grosvenor Crescent) have a community of interest with the petitioners in enforcing said restrictions. These restrictions are an implied servitude over the petitioners ground as to the type of buildings to be erected thereon. The petitioners' proposed buildings are a breach thereof.”

The respondents pleaded, inter alia—“2. The conditions, provisions, declarations, and others contained in said feu-disposition being effectual and binding upon the whole of said ground, and imported directly or indirectly or by reference into the titles of petitioners, respondent, and objectors, and the petitioners' proposed operations being in violation thereof, petitioners are not entitled to the warrant craved. 3. The erection of the proposed buildings being in violation of the conditions and others created in the writs founded on, warrant to erect should be refused. 4. The effect of the proposed erections being injuriously to affect the amenity of, and deteriorate in value, the respondent's and objectors'several properties, warrant should be refused. 5. The respondent and objectors are proprietors of portions of said whole lands contained in said feu-disposition, and having a community of interest with the petitioners in enforcing the conditions and others therein contained are entitled to have the prayer of the petition refused with expenses. 6. The respondent and objectors, so far as being proprietors of portions of said subjects contained in the contracts of ground annual of 1880 and 1881, having a community of interest with the petitioners in enforcing the conditions and others therein contained are entitled to have the prayer of the petition refused with expenses.”

The petitioners pleaded, inter alia—“1. The respondent and objectors having no title or interest to object to the erection of the proposed buildings the objections should be repelled. 3. The objections should be repelled and decree of lining granted in respect that—( a) The averments of the respondent and objectors so far as material are unfounded in fact. ( b) The erection and use of the proposed buildings (1) will not be a violation of the conditions of the feu; et separatim (2) will not injuriously affect the amenity of the property of the respondent and objectors,”

On 11th January 1923 the Dean of Guild pronounced an interlocutor in which, after sixteen findings in fact, he found (seventeenth) that the position is substantially set forth in the sketch plan—“(First) that the proposal of the petitioners is not in contravention of the conditions in the original feu-disposition of the 34 acres, &c., as they may not necessarily be using the ground for shops, warehouses, stores, or places for the sale of goods or commodities of any kind nor as stables, and that whatever use might ultimately be made is not a matter for this Court: (Second) That the plea that the buildings to be erected will be injurious to the amenity of the district, and the plea that the use of the proposed buildings as a picture house will be hurtful and occasion disturbance to the houses and inhabitants in the whole lands, are not matters to be dealt with by this Court: (Third) That the provisions in the contract of ground annual of 1881 as to leaving the strip of ground open and unbuilt on and of the breadth of

Page: 419↓

12 feet and as to the height of the buildings are validly constituted negative servitudes non œdificandi and non altius tollendi: Therefore with these findings continues the case to give the petitioners an opportunity, if so advised, of considering whether their plans can and should be amended to meet the objections quoad the said negative servitudes. The plans having been amended in accordance with this interlocutor the Dean of Guild on 1st February 1923 granted warrant to erect the picture house.

Dr Adamson appealed, and argued—1. The erection of the picture house would be a violation of the restrictions which the contract of 1873 had validly imposed on A, and which were enforceable by the appellant as one of the owners of B. The titles had established mutual enforceability as between the owners of A, B, and C of the restrictions contained in their respective titles. These restrictions were obviously intended to be of a perpetual nature and not merely personal to the disponee. Where such restrictions were imposed by a common author with an obligation on the disponees to insert them in future dispositions, there was a community of interest to enforce them— Hislop v. Macritchie's Trustees, 1881, 8 R. (H.L.) 95, per Lord Watson at p. 103, 19 S.L.R. 571, based upon a jus qucesitum tertio resulting from consent— M'Gibbon v. Rankin, 1871, 9 Macph. 423, 8 S.L.R. 306. Here the restrictions on A had been made real burdens, which the disponee was taken bound to insert in subsequent dispositions, and the disponer had come under obligation to insert similar restrictions in other dispositions. This implied consent to a jus qucesitum tertio and was sufficient to establish mutual enforceability— Nicholson v. Glasgow Asylum for the Blind, 1911 S.C. 391, per Lord Dunedin at pp. 399 and 401, 48 S.L.R. 272. The variations in the restrictions in the other deeds was immaterial. Although not identical, their common purpose was the amenity of the district and they were similar. That was all that was stipulated for and all that was necessary to establish mutuality. The position in 1883 was practically the same as that in Nicholson v. Glasgow Asylum for the Blind. The fact that the deeds creating the restrictions were dispositions subject to ground annuals instead of feus made no difference— Stevenson v. Steel Company of Scotland, Limited, 1899, 1 F. 91, per Lord Watson at p. 94, 36 S.L.R. 946; Hislop v. Macritchie's Trustees. In Marshalls Trustee v. Macneill & Company, 1888, 15 R. 762, 25 S.L.R. 581, the question was merely one of security and the case did not apply here. Turner v. Hamilton, 1890, 17 R. 494, 27 S.L.R. 378, was distinguishable—per the Lord President at 17 R. 499—and in Assets Company, Limited v. Lamb & Gibson, 1890, 23 R. 509, 33 S.L.R. 407, there was no one to enforce the building conditions. (2) The Dean of Guild should have determined whether the proposed buildings would be hurtful or occasion disturbance to the other houses or inhabitants, and the case should be remitted back to him to do so. This was a question of fact which he was the proper person to decide, and not a question of what was a nuisance at common law. Kirkwood's Trustees v. Leith & Bremner, 1888, 16 R. 255, 20 S.L.R. 176; Manson v. Forrest, 1887, 14 R. 802, 24 S.L.R. 578; Robertson v. Thomas, 1887, 14 R. 822, 24 S.L.R. 596, were all cases of common law nuisance and did not apply.

Argued for the petitioners—1. The building conditions in the contract of ground annual of 1873 were not so expressed as to create permanent restrictions, and were not intended to be so but to be personal to the grantee, and only for the purpose of giving the creditor security for the ground annual. They therefore ceased with the discharge of the ground annual in 1876. Further, this did not mean that no buildings except the tenements as described were to be erected. Such personal conditions in a contract of ground annual were in quite a different position from conditions in a feu-charter and were never made permanent restrictions— Marshall's Trustee v. Macneill & Company; Gardyne v. Royal Bank of Scotland, 1853, 1 Macph. 358. But even assuming this contention to be wrong, there was here no tertius with a right to enforce the conditions. Mutual enforceability might be inferred where the conditions were identical, but where there was mere similarity it required to be expressly imposed— Bannerman's Trustees v. Howard & Wyndham, 1902, 39 S.L.R. 445. In this instance the conditions in the other titles were not even similar to those in the deed of 1873, and there was nothing in the petitioners' titles to show that they were burdened in favour of their neighbours—Lord Dunedin's dictum in Nicholson v. Glasgow Asylum for the Blind ( cit.)—that the burden must exist in the title of the servient tenement was therefore favourable to the petitioners. 2. The questions arising out of the prohibitions in the feu-disposition of 1868 were questions of use, not of structure. They were not therefore appropriate to the Dean of Guild. The proper proceeding was to allow the lining and leave the petitioners to be interdicted if they made a wrong use of the building— Colville v. Carrick, 1883, 10 R. 1241, per Lord Justice-Clerk at p. 1244, 20 S.L.R. 839; Kirkwood's Trustees v. Leith & Bremner ( cit.). The following cases were also referred to on the question of the relevancy of the objectors' averments of nuisance— Anderson v. Aberdeen Agricultural Hall Company, 1879, 6 R. 901, per Lord President at p. 904, 16 S.L.R. 517; Finnie v. Andrew Usher & Company, 1891, 29 S.L.R. 273; Frame v. Cameron, 1804, 3 Macph. 290; North British Railway Company v. Moore, 1891, 18 R. 1021, 28 S.L.R. 782; Mutter v. Fyfe, 1848, 11 D. 303.