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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Porter v. Campbell's Trustees and Others [1923] UKHL 630 (23 July 1923)
URL: http://www.bailii.org/uk/cases/UKHL/1923/60SLR0630.html
Cite as: [1923] UKHL 630, 60 ScotLR 630
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SCOTTISH_SLR_House_of_Lords
Page: 630↓
House of Lords.
(Before
v.
(In the Court of Session, December 8, 1922, 1923 S.C. 206, 60 S.L.R. 153.)
Subject_Building Restriction — Superior and Vassal — Obligation to Build a “Self-contained Lodging” and thereafter to Maintain the Same — Proposal to Convert into Four Self-contained Flats.
Facts:
A feu-contract relating to a piece of ground upon which one of the houses in a terrace was built contained a clause binding the feuar to build on the steading of ground feued “a self-contained lodging … and thereafter to maintain and uphold in good condition, … and to rebuild … the same if and when necessary of the same height, elevation, and outward style of architecture … 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 … shall correspond in all respects with the architecture of the rest of the terrace and shall line with steading number one of the said terrace. …” These conditions and restrictions were declared to be real burdens upon the ground in question. The proprietor of a house upon the steading having proposed to make certain alterations on the house, then in single occupation, which while not in any way affecting its external structure or elevation, would allow of its being occupied by four separate families, objection was taken by the proprietor of the adjoining house and also by the superior. Held ( aff. the judgment of the Second Division) that the proposed alterations, which affected merely the internal structure of the house, did not involve a contravention of the restriction in the feu-contract, and appeal dismissed.
The case is reported ante ut supra.
The objectors appealed to the House of Lords.
At the conclusion of the argument for the appellants, counsel for the respondent being present but not being called upon, their Lordships delivered judgment as follows:—
Before going into details I will turn to the words in the feu-disposition to the respondent, or rather to the respondent's author, which are sought to be enforced as entitling the appellants to a prohibition of the structure which I will presently describe. They are contained in the disposition of 1874, which was a feu-contract made between James Whitelaw Anderson and Robert Young. The words which we have to construe are these—“The second party and his foresaids”—that is, the respondent's author—“shall be bound and obliged, as by acceptance hereof he binds and obliges himself and his foresaids, to build, complete, and finish a self-contained lodging with a sunk area of twelve 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
Page: 631↓
Now what is proposed to be done? This house is at the end of Great Western Terrace, and it has a front door and two storeys above and the basement below. The basement has a back door, as a basement usually has, or a door at anyrate by which you have access to it, and it is proposed somewhat to alter that door and make it at the back instead of where it is at the present time—or I so gather from the description that was given to us, but I do not think anything turns upon it. However that may be, what is proposed to be done is to take the basement, the ground floor, the first floor, and the second floor and to turn them into self-contained flats which will accommodate a family, and which are to have all the provisions that a family would require—kitchens, store-rooms, bath-rooms, conveniences, and so on with an adequate number of bedrooms. There is no doubt that if it had not been for the purpose of dividing the house into flats there would have been no violation at all of the structural restrictions had that been carried out, because the structural restrictions are exterior structural restrictions, and really the only question in this case turns not upon these restrictions but upon this—that the structure is alleged to be one which only a single family could occupy, and it is therefore described as a “self-contained lodging.” It is said that “self-contained lodging” used in the singular is something that has to remain a lodging for one family, and is not to be divided into separate lodgings for separate families. In that sense it is said to be a restriction upon user to this extent.
In these days, with the change of customs, it is more difficult than it used to be to say at first sight whether a house is a single house in the sense of containing only one family, or whether it consists of several homes inside containing different families. Families may go upon the different floors and without any front doors occupy them by arrangement without interfering with one another, or there may be made such alterations as shut off the families from the stair going through and enabling them to have access to them, or you may do that more elaborately and the common stair may be a common stair of such a character as obviously from the outside to look structurally different in its opening from the front door of a private house. On the other hand, a private house, even when it contains lodgings for several families, may have a front door which is not different from an ordinary front door of a single occupied dwelling-house. Again, there is no prohibition here of setting up a club in one of these houses and using the house for a club. The door of a club would look rather different from the ordinary front door of a house, but that would probably not turn out to be a structural alteration contravening the provision in the feu-disposition. In that condition of things what is it that is sought to be done? Simply, as I take it, to modify the structure of the internal staircase. That you could have done for the purpose of a single family if you had wished without the superior or the neighbours being entitled to raise any objection. Then if you have adapted your staircase and arranged by partitions the rooms on each side of it in the various flats so as to suit the purposes for which you are going to use them, that is a thing again against which there is no prohibition. What is proposed to be done is to put on each flat a door where the staircase passes it, so that there may be access to the staircase, and on the other hand privacy against the entry of unauthorised persons. The question is whether that is prohibited by this clause? The clause in the feu-disposition is a clause which, according to the accepted usage of the Courts, is construed strictly—that is to say, you do not, by conjecture as to the general purpose of the instrument, introduce a purpose which would extend the words beyond their natural and strict meaning. Accordingly you take this as it stands as a restriction on the user of the property, as to which there is no presumption that it is to be extended to cover any particular case, nor is there any particular case for it to cover here. The purpose was to regulate the external structure. There was to be a “self-contained lodging.” Now that is an expression of a type which has been construed by a series of decisions in the Court of Session. We had references to the cases of Buchanan and Miller, and these are cases in which the Court refused to hold that there was any other test than this: Were the alterations in the user of the building as a building in the character of a single lodging such that the lodging could not readily and without any external change be put back again into condition fit for
Page: 632↓
These are decisions of considerable authority. It is true that Lord Rutherfurd Clark, a distinguished judge and a great feudalist, dissented in the first of those cases—the case of Buchanan, but in that case there was a judgment of another great feudalist and equally distinguished judge, Lord Kinnear, and that judgment was affirmed by Lord Young, Lord Craighill, and the Lord Justice-Clerk himself, Lord. Moncreiff, who was sitting. Subsequently the decision was followed by a case in which Lord Rutherfurd Clark, who had himself dissented in the case of Buchanan, concurred in the case of Miller on the ground that the thing had been decided. Now of course that may be interpreted as Lord Rutherfurd Clark maintaining his opinion and not thinking it necessary to dissent formally, but it was open to the learned judges in that case if they had had any doubt about the matter to say—“This is a serious question, and it ought to go before the entire Inner House or before a Court of Seven.” They did not take that course, and those decisions have not been quarrelled with since, nor is there anything in the recent case of Montgomerie Fleming's Trustees v. Kennedy ( 1912 S.C. 1307), in which Lord Dunedin expressed an opinion, in which that opinion goes to the point which is before us. Therefore I come to the conclusion that there is a substantially uniform line of authority in the Court of Session in favour of the construction which the respondent invites us to put on the feu-disposition in this case. I do not say that if we thought the construction clearly a wrong one it would not be possible for us to overrule those authorities, but we should do so even in that case with reluctance; and here, for the reasons I have indicated to your Lordships, I do not think the construction was a wrong one at all, but that we are only giving effect to the natural meaning of the words used in the feu-disposition by accepting the construction which the Second Division has put upon them.
I therefore move your Lordships that this appeal be dismissed with costs.
In looking at the feu-disposition, the construction of which has been so minutely analysed by the learned counsel for the appellants, your Lordships will broadly distinguish between the two points of restriction which are there set out. The one is manifestly and most clearly the point of external structure. The building is to be placed upon a certain site, it is to be of certain materials, it is to be in line with the adjacent buildings as set forth in the plans, and the external arrangement and the exterior structure—which I think are phrases culled from the disposition—are made the point of express bargain. Now it is an admission in this case that upon that part of the charter there is no question between the parties. The respondent in his operations has not violated by one iota those restrictive provisions. Accordingly one turns to the other part of the charter with reference to the use to be made of the plot of ground and buildings. There is the usual grotesque enumeration of noxious and offensive businesses and trades which one finds in these old Scotch charters. Again, it is a matter of admission that the respondent, with regard to the whole of those clauses applicable to the use of the ground and buildings, has not offended in one single particular which is expressed, but the learned counsel for the appellants says there is an implication of use from the employment of the term “self-contained lodging.”
There is one part of the judgment of the Court below which I dissent from, and that is the judgment of Lord Ormidale, where he treats the case as a difficult and delicate question. I do not think it is anything of the sort, and I say so because of the broad sense and sound law contained in the judgment of that great lawyer Lord Kinnear in the case of Buchanan v. Marr, in which he gives this useful definition; he says—“If the defender's house is in its structure of such a character as to satisfy the conditions of the feu-contract, I think it is very doubtful whether the contract contains any effectual restriction against its being occupied by several families or otherwise than as self-contained houses. The feuars are prohibited from occupying any buildings otherwise than as ‘dwelling-houses and relative offices.’ But the condition that the houses shall be ‘self-contained’ occurs in a part of the clause of restriction dealing not with use or occupation but with the structural character of the houses to be erected,” and he proceeds to say, that that being so, although internal alterations had been made, these could at the will of the owner be undone, and the building to all intents
Page: 633↓
The result is this—First, no breach of the restrictions with regard to the exterior and the architecture; secondly, no breach with regard to use in the terms of occupying the premises for noxious or offensive trades; and thirdly, on this decision, no breach with regard to what is said to be implied, namely, the necessity of keeping this as a self-contained dwelling-house.
The case of Buchanan to which I have referred was decided forty years ago. Thirty-five years ago it was followed by the case of Miller, and Lord Rutherfurd Clark then agreed that the settlement of this question upon the principle involved had been determined—and determined as part of the law of Scotland—in the case five years before of Buchanan. Who are we that we should propose to interfere with that judgment. I most heartily agree with what has been said from the Woolsack, that if there was anything manifestly contrary to elementary legal principle in any of the doctrines laid down in the Court below, this House would consider itself free to take a strong line even in face of a long-standing decision, but it would not lightly do so, and I do not find that I am so constituted that I have the slightest fault to find with the law laid down forty years ago, and I should hesitate long before I should condemn that law which to my knowledge, I might assert, has been followed during that long period, amounting to the long prescription period, in towns and villages in Scotland from one end of it to the other. To say that all that was done in the face of sound law instead of according to law is not a proposition which commends itself to my mind.
I desire to say that I think this a most unfortunate appeal. I think the challenge of this decision should not have been made, and this superior and neighbour should have stood well content to accept the law which has so long prevailed.
In my opinion, if a house or lodging is so constructed as to be reasonably capable of being occupied as a self-contained house or lodging, it is within the terms of the feu contract a self-contained house or lodging. Then the question of fact arises whether this house if altered as proposed will be reasonably capable of being occupied as a self-contained house or lodging. This question is answered in the affirmative by the Dean of Guild, and I cannot see that any other finding is possible. In my opinion it is not inconsistent with the contract that the proposed alteration will allow of the occupation of the house by four individual or separate occupiers. This objection might arise under a covenant restricting the use or occupation of a house or lodging. It is not an objection on a covenant relating only to structure.
I agree with the judgment which has been proposed.
Their Lordships ordered that the interlocutor be affirmed and the appeal dismissed with costs.
Counsel for Appellants— Moncrieff, K.C.— Dykes. Agents— Martin, Milligan, Macdonald, W.S., Edinburgh— Beveridge Company, Westminster.
Counsel for Respondent— Graham Robertson, K.C.— Burn Murdoch. Agents— Hagart Burn Murdoch, W.S., Edinburgh— Trinder, Capron, Kekewich, Company, London.