Scottish Court of Session Decisions

John Galloway, plumber, Arbroath, was pro

Page: 180↓

prietor of two adjoining houses there. The end or gable wall of one was part of the back wall of the other. By trust-disposition and settlement and codicil dated 22nd May 1857 he left the former to his daughter Mrs Ann Galloway or Whitton, and the other to his daughter Mrs Catherine Galloway or Cuthbert. The conveyance of each house was in similar terms, and each was described as bounded by the other.

In March 1888 Mrs Cuthbert brought an action in the Sheriff Court at Arbroath against John Galloway Whitton and others in right of Mrs Ann Galloway or Whitton, now deceased, and prayed the Court “to find and declare that the wall dividing the property of the pursuer from the property of the defenders situated in Allan Street, Arbroath, is a mutual gable wall.” The petition contained further declaratory conclusions of common property in a back court, and exclusive property in a back stair, which were afterwards given up.

The defenders claimed the exclusive right to the wall, or at all events did not admit that it was the mutual property of them and of the pursuer.

As far as this case was concerned nothing was known about the history of these two houses or their sites prior to the time when John Galloway, proprietor of both, conveyed them to his two daughters respectively. The Sheriff-Substitute ( Robertson) allowed a proof, which was confined by the parties entirely to the question whether the wall in dispute complied with the characteristics of a mutual wall, and afterwards by interlocutor of 13th June 1888 the Sheriff-Substitute found that the pursuer had failed to show that the wall and back court in dispute were mutual, or that the stair mentioned in the petition was her exclusive property, and assoilzied the defenders. He added a note explaining that his judgment was based on the facts that the defenders' house was built before the pursuer's, that the wall had not the usual thickness of a mutual wall, and that there was a window in it which benefited only one of the proprietors.

The pursuer appealed to the Sheriff ( Comrie Thomson), who dismissed the appeal.

“ Note.—I am unable to find any of the usual features or marks which are looked for in a mutual gable. It has not been built so as to suit the purposes of the two properties in the same degree, and such equality of rights as is of the essence of a mutual gable is, from the mode in which the wall was erected, impossible.”

The pursuer appealed to the Court of Session.

Argued for appellant—The conveyances were in similar terms. There was nothing to lead to the conclusion that the father, the proprietor of both houses, had given a four-wall house to one daughter, and a three-wall house to the other with no right to touch the fourth wall without her sister's consent. Such an extraordinary result could only receive effect if for some reason the natural presumption of the mutuality in the dividing wall was clearly overcome by the titles. The conveyances made no such unreasonable distinction, and the Sheriff-Substitute was wrong to allow a proof at all in this matter.

Argued for respondents—This was an oppressive action. The really important conclusions had been departed from, and now a bare declarator that this was a mutual wall was asked. It was the appellant who was seeking to disturb the harmony which had hitherto existed. The respondents conceded the present state of possession, and admitted the appellant was entitled to have her house duly supported by their wall. They objected to the declarator asked on the ground that the appellant, if successful, would probably thereupon insert vents and otherwise weaken their wall.