Scottish Court of Session Decisions

This was an appeal from the Magistrates of the City of Edinburgh, who have over those parts of the city lying, as the tenement referred to in this case did, outside the bounds of the ancient royalty, the jurisdiction of the Dean of Guild.

The petitioner, a grocer, occupying premises at the corner of Nicolson Square and Nicolson Street, presented a petition to the magistrates craving leave to make certain alterations on his property, and additions to it. The petitioner was proprietor of the floor on a level with the street and of the cellarage in the sunk flat. He proposed to cover over the area in front of his premises, and to extend his shop-front over it. The respondents were proprietors of the flats above the shop, and objected to the proposed operations, as tending to interfere with their rights as conterminous proprietors. The dispositions from which the rights of the petitioner and respondents respectively arose were nearly of the same date, the tenement having previously been occupied as a self-contained dwelling-house, and conveyed to the petitioner, besides the ground-floor and cellarage, a right “in common with the other proprietors of the tenement, of which the subjects hereby disponed form a part, to the solum of the ground on which the same is built, and whole rights, pertinents, and privileges belonging to the subjects hereby disponed;” to the respondents, besides the upper flats, “a right in common with the other proprietors to the area on which the said dwelling-house stands.” There was no allegation of use of the area except by those on the ground-floor, and there was no access to it except through the petitioner's shop. The magistrates found that the area was common property, and that the petitioner was not entitled to build thereon without the consent of the respondents.

The petitioner appealed, and argued—There is a right of property in the area conveyed in his titles to the proprietor of the lower flat, and the right of the upper proprietor is merely one of common interest. The distinction between common interest and common property is a familiar one laid down by the authorities—Erskine, ii. 9, 11; Bell's Principles, 1071, 1075, 1086; Anderson v. Dalrymple, M. 12,831. And where such a common interest exists the proprietor of the lower tenements is entitled to make any alterations or additions on his own property that do not injure his superincumbent neighbours— Dennistoun v. Bell, March 10, 1824, 2 Sh. 784; Murray v. Gullan, March 10, 1825, 3 Sh. 639; Stewart v. Blackwood, February 3, 1829, 7 Sh. 362. The absolute property of the solum in the proprietor of the lowest storey is qualified by the interest that the other proprietors have in it—Lord Glenlee's opinion in Stewart v. Blackwood, supra, and Lord President's opinion in Gellatly v. Arrol, March 13, 1863, 1 Macph. 599. In the case of Urquhart v. Melville, December 22, 1853, 16 D. 307, the Court went a step further, and laid down that the proprietory right of any proprietor of any storey extends outwards to the limits of the property still burdened by his neighbours' common interest. That is the common law, which is further illustrated by the cases of Brown v. Boyd, July 13, 1841, 3 D. 1205, and Lamont v. Cumming, June 11, 1875, 2 Rettie, 784. The respondent has not here acquired any further right than that given him by the common law, and the petitioner is therefore entitled to build on this area in so far as his neighbours are not injured thereby.

Argued for the respondents—By the terms of the titles a right of common property in the area, i. e., the whole plot of ground on which the house stands, as well as that portion in front of the sunk storey, was conferred on the respondents. Whatever right the petitioner has is identical with that of the respondents. There is therefore in this case a specialty not found in the other cases of proprietors of tenements of this description. In the case of Melville v. Urquhart, which the petitioner founds on, the operations on the lower storey had been executed, and by one who was at the time proprietor of the whole tenement. Its authority therefore was of no value in the present case, where there is at least a conflict of interests, if not a divided property, and where the operations have not yet been begun.

At advising—