Scottish Court of Session Decisions

By feu-contract dated in 1824, Joseph, Charles, and George Archibald feued to Mrs Shillinglaw and William Scott, copartners under the firm of Shillinglaw & Scott, builders, Edinburgh, three building areas or lots of ground of the west row of the new street called Archibald Place, as delineated “according to a ground plan and elevations of the said street and intended buildings prepared by Patrick Wilson, architect.” The feuars were prohibited from erecting buildings of any kind whatever on the plots of ground in front of the houses to be erected except parapet walls and railings for enclosing and dividing these plots, “to which effect the whole feuars of Archibald Place are hereby declared to have a servitude over the said plots of ground, and they are likewise hereby expressly prohibited and debarred from erecting buildings of any kind on the back ground to the west of the dwelling-houses built, or to be built, on the lots of ground hereby feued which shall have fireplaces or vents of any kind therein, or the roofs whereof shall rise above the soles of the windows of the principal entrance floor of said dwelling-houses.… And also declaring that the said Mrs Elizabeth Cooper or Shillinglaw and William Scott, and their aforesaid possessors of the ground hereby feued, shall be, as they hereby are, perpetually limited and restricted from converting the houses built or to be built on said areas into shops or public ware-rooms for business or handicraft of any kind, from baking or brewing for sale, and from retailing of goods or vivers of any sort or denomination therein, and in general from using the property in any way whatever that may be offensive or tend to create any nuisance to the street or neighbourhood.” The feu-contract then went on to declare that the feuars were bound to acquiesce in and contribute to the expense of carrying out any improvement which the majority of the proprietors should consider advantageous, “all which conditions, provisions, and declarations are hereby appointed to be engrossed in the instrument of sasines to follow hereon, and in all the future renovations of this feu-right.” This appointment was duly obeyed.

The feuars bound and obliged themselves “immediately to erect and finish a handsome dwelling-house on each of the three areas hereby feued, in the precise situation, and of the dimensions and style of building exhibited on the aforesaid plan and elevations of the said new street, which are subscribed by them as relative hereto.” It was provided that all operations should be carried on open to the inspection and correction of the said Patrick Wilson, to secure that they should be executed agreeably to the said plan and elevations, and in perfect accordance with the objects thereof. There was no direction that these obligations should enter the sasine, and they did not in fact enter the sasine.

The street was erected in accordance with the conditions and the plans, and consisted of a short row—about 60 yards in length—of houses of two storeys and attic flats, with sloping roofs and skylight windows. From time to time alterations were made in the front elevation of the houses, which are sufficiently described in the Dean of Guild's note.

In 1892 Charles Johnston was proprietor of No. 6 Archibald Place, the middle feu of the three formerly disponed to Shillinglaw & Scott. He sold his feu to the Royal College of Physicians, contingent upon getting authority for them to carry out the alterations they desired to make. Johnston and the College therefore presented a petition to the Dean of Guild Court for warrant to erect a building of one storey to form an experimental laboratory on the vacant ground at the back; to make certain internal alterations on the ground floor and the first floor, and to convert the attics into a square storey. All the alterations were to be made with the view of adapting the house “for a laboratory for scientific research.”

The neighbours on each side of No. 6, Miss Mary Sawers-Mitchell, proprietrix of No. 8, and Miss Euphemia Dawson Mac-Ritchie, 4 Archibald Place, lodged objections on three grounds—They objected, in toto, to the use to which it was proposed to put

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the house, and in any case to the substitution of the square storey for the attic flat, and to the proposed ventilators on the roof of the building behind.

The petitioners pleaded—“(1) The petitioners are entitled to warrant as craved, in respect that the proposed operations are confined to the petitioners' own property, and that the same are a lawful exercise of their right of property. (5) Assuming that the plan produced was binding upon the original feuars, the same has been departed from in material respects, and cannot now be enforced by the respondents against the petitioners.”

The respondents pleaded—“(2) The plans lodged by the petitioners in accordance with which they crave warrant to erect the experimental laboratory mentioned in the petition, being in direct contravention of the conditions and restrictions contained in the feu-contract of the ground on which the property is erected, they are not entitled to warrant as craved, and the same ought to be refused. (3) The use to which the petitioners propose to put the proposed buildings being in direct violation of the feu-contract, and being of such a nature as will be offensive, and tend to create a nuisance to the neighbourhood, the same should not be sanctioned. (4) The alterations proposed to be made on the existing building being in violation of the feu-contract, and not being properly adapted for the purpose for which they are intended, the prayer of the petition ought to be refused.”

Upon 24th November 1892 the Dean of Guild pronounced this interlocutor:—“Finds that the operations of the petitioners are confined to their own property, and can be executed without danger: Further, finds (1) that the objects for which it is proposed to alter the petitioner's house are not included in the uses of the property, which are prohibited by the superiors; (2) that the proposed ventilators on the building behind are not forbidden by the conditions of the feu, and even assuming them to be forbidden, that the respondents have no interest to object thereto: (3) Finds that by the conditions of the feu the petitioners are forbidden from altering their attic as they propose, but that the restrictions in the title have been so relaxed or departed from by the deviations from the original building plan acquiesced in by all concerned, that the petitioners are now entitled to alter their attic flat as they propose.”

“ Note.—[ After statement of the facts and the terms of the feu-contract]—The Dean of Guild thinks that up to this point in the case he is bound to conclude that an action for the enforcement of the restrictions of the feu-contract would be competent by one feuar against another. There are several considerations which combine to lead to this view. Similar restrictions were imposed on all the body of feuars; these conditions have been inserted in all renewals of the feus in question; the plan by which building was regulated was made a part of the contract, and from the whole scope of the deed it appears to the Dean of Guild that the body of feuars in Archibald Place were intended by the superiors to be, and were actually constituted, a community with mutual rights and obligations— M'Ritchie's Trustees v. Hislop, 7 R. 392, 8 R. (H. of L.) 102.

In this view the Dean of Guild must proceed to consider the three grounds on which the respondents base their objections. First, they allege that to alter this house from a dwelling-house into a laboratory for scientific research would be a violation of the restriction which prohibits them from converting the houses ‘into shops or public warerooms for business or handicraft of any kind, from baking or brewing for sale, and from retailing of goods or vivers of any sort or denomination therein, and in general from using the property in any way whatever that may be offensive or tend to create any nuisance to the street or neighbourhood.’ Now, it is apparent that this tenement, if altered as proposed, will not fall under any of the specified classes of premises which are forbidden by this clause. What the superiors were apparently anxious to prevent was the dedication of any of the houses to the purposes of trade, and as the house, if altered, will be devoted to scientific and not to commercial ends, the Dean of Guild is of opinion that its use will not be a violation of this restriction. It was also argued that the purposes for which it is proposed to use this house would create a nuisance. The Dean of Guild is not competent to deal with the question of nuisance as so raised— Kirkwood's Trustees, 16 R. 255. If the buildings are permitted, and nuisance does arise, the respondents will still have a remedy open to them.

In the second place, it is proposed that the roof of the building on the ground behind should be fitted with ventilators of the ordinary kind, about 18 inches high, and with lattice sides. It is objected that this would be a violation of the restriction which forbids houses on this part of the property ‘which shall have fireplaces or vents of any kind therein.’ No fireplace is shown in the plan. The proposed back building would be heated by pipes. The question is, Are those ventilators ‘vents’? The Dean of Guild thinks that the prohibition applies to chimneys in any form, and therefore that it would not include ventilators. The word is used in close connection with the word ‘fireplaces;’ besides, the ordinary meaning of the word ‘vent’ in Scotland is ‘chimney,’ and probably this was more certainly its meaning at the date of the deed. What, in the opinion of the Dean of Guild, the superiors desired to forbid, was any form of a passage for smoke or steam, whether by flue, or stovepipe, or chimney-can, and accordingly he dismisses the second objection for the respondents. It is explained that this building on the back would not be used as a chemical but as a bacteriological laboratory. It is well known that for work of such a kind the purest of air is essential.

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The respondents at first supposed that they were threatened with the offensive smells which often attend chemical experiments. All ground for this apprehension appears to be removed, and the Dean of Guild fails to see what interest the respondents have to object to ventilators of apparently harmless character. If nuisance were to ensue, the respondents could still object.

The remaining ground of objection is the proposal to substitute the square storey for the attic flat. This proposal is certainly contrary to the original elevation; as already explained, the Dean of Guild thinks that this plan was effectually made part of the contract, and the whole question here is, whether the respondents are in a position to plead this plan, or whether, as the petitioners assert, they have lost their right by acquiescence in departures therefrom.

The departures are admitted to be correctly specified in a minute of amendment for the petitioners, and fall into two classes—viz., alterations on the roof, and on the fronts of the tenements. The latter consist of the substitution of doors for windows and vice versa. The former include two dormer windows projected from the roof of No. 2, one dormer window on No. 14, and numerous skylights in several of the houses. The alteration of the doors and windows do not much affect the general appearance of the houses and street. They are, of course, apparent when the plan is compared with the existing street, but the Dean of Guild is of opinion that if these were the only alterations on which the petitioners could found, they would not be sufficient to imply acquiescence in a more serious and conspicuous alteration of the elevation. In Magistrates of Edinburgh v. Macfarlane, 20 D. 156, tacit abandonment of the feuing conditions was not inferred from deviations such as these. In that case front doors had been converted into shops, and ‘plats’ had been thrown over areas to form accesses; but projections of the front had been of a very limited kind, and only in the way of architectural embellishment. There had not been anything like such an extensive deviation as was proposed in that case—viz., the projection of the front of the tenement, as high as the roof of the first floor, into the area, to more than one-half of its breadth. The petitioners' proposals were accordingly disallowed. A question like the present is always one of degree, and this is well illustrated by the case of Macfarlane. Alterations on the front had been many and various, but the dimensions of the street—its length, its breadth, the size and character of the houses, all combined to render the alterations comparatively unnoticeable, and therefore harmless, but a projection of the two lower storeys of a house towards the street would have been a violent and startling transgression of the building line, and was accordingly forbidden.

But the Dean of Guild thinks that a different case is raised here by the dormer windows. He is of opinion that in the circumstances of this case there has been such abandonment of the restrictions imposed by the elevation plan as to bar the respondents from objecting to the petitioners' proposals. The Dean of Guild believes that he has authority for this conclusion in the case of Stewart v. Bunten, July 20, 1878, 5 R. 1108. In that case the feuars in a street were entitled either to build the two houses at the ends of the street, or two houses in the middle, to the height of three square storeys, and they chose the former alternative. The proprietor of the three centre houses sought to raise them higher by an additional storey. The proprietor of one of the end houses was found entitled to stop him, although, contrary to the conditions of the feu, storm windows had been erected in front, and the attic storey had been squared to the back.

Now, Lord Gifford indicates that the chief object of the restrictions in the feus of this street was to preserve the front appearance of the block of dwelling-houses. As a matter of fact, that appearance had never been destroyed or even affected by the forbidden storm windows, and therefore it was still open to the defender to object to a proposal which would have so largely affected the uniform design of the street. The Dean of Guild ventures to think that if in that case the departures from the prescribed elevation had destroyed or materially affected the front view of this street, the result of the case would have been different.

In the present case there can be no doubt that what the superiors had chiefly in view was the front appearance of the block of dwelling-houses, and as originally provided for by the conditions and the plan, and as originally erected, Archibald Place was a short street of about 60 yards in length—easily seen at one view, and consisting of a block of plain but tasteful second class dwelling-houses. But, in the opinion of the Dean of Guild, the uniformity and symmetry of the street have been entirely abolished by the dormer windows erected on No. 2 and No. 14 Archibald Place. The moment the street is entered these projections are the first objects that catch the eye and arrest the attention. The balance of the building scheme has been quite destroyed, and the effect produced is awkward and rugged in the extreme. Accordingly, it appears to the Dean of Guild that the object of the conditions has been abandoned, not only by the transgressors and their immediate neighbours, but by all the feuars in the street, for, as explained before, the street is so short that a deviation from the building line on the part of one would affect not only conterminous proprietors, but all the owners of property in the block.

Accordingly, the Dean of Guild is of opinion on this part of the case, that although by the conditions of the feu the petitioners are prohibited from altering their attic as they propose, still the restrictions in the title have been relaxed or departed from by the deviations from the

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original building plan, acquiesced in by all concerned.”

The respondents appealed to the Court of Session, and argued—There was an obligation upon each feuar by the terms of his feu-contract to erect a building upon his plot of ground in accordance with the feuing plan prepared by Patrick Wilson. It was true that this obligation was not made a real right in the sense that it was not declared necessary to enter the sasine as some of the earlier obligations were, but the petitioner here was founding upon the original charter, and according to authority a singular successor—as the petitioner was—was bound by the conditions of the original charter although all the stipulations had not entered the record, so that the superior could have enforced this stipulation— Stewart v. Duke of Montrose, February 15, 1860, 22 D. 755— aff. March 27, 1863, 1 Macph. (H. of L.) 25; Hope v. Hope, February 20, 1864, 2 Macph. 670; Earl of Zetland v. Hislop and Others, June 12, 1882, 9 R. (H. of L.) 40. If the superior could have insisted upon this obligation, then any of the feuars could insist upon it if the superior had given them mutuality by the terms of the feu-contract. He had done so here. The same obligations were put upon all the feuars, and although this particular obligation did not enter the record it was a stipulation in the original charter by which all the feuars were bound. As the superior therefore had put this burden upon all the feuars, the fact that the restriction did not enter the record could not take away the jus quœsitum tertio from the other feuars, as that depended upon the intention of the original grant. In the third place, this application was uncalled for, because the alterations formerlymade in the front of the houses did not change their character as the proposed alterations would do, and were not such a change from the original plan as entitled the applicant to say that the other feuars had acquiesced in the change of the plan— Stewart v. Bunten, July 20, 1878, 5 R. 1108.

The respondents argued—There was no mutuality upon the feuars here. Certain restrictions were put upon them as to building upon the front and back plots of ground, and these were made real by entering the sasine, but the declaration as to what kind of a house must be built upon the feu was a purely personal obligation, and did not enter the sasine, so that even if the superior could have objected to the proposed change in the front of the house, the co-feuars had no right to object. It was merely an implied obligation to maintain the house originally built in the same manner in all time coming, and from all that was said in the deed the feuar could have fulfilled his obligation to the superior by building a house according to the plan, and afterwards pulling it down and building one according to another elevation— Croall v. Magistrates of Edinburgh, December 20, 1870, 9 Macph. 323; Moir's Trustees v. M'Ewan, July 15, 1880, 7 R. 1141; Marquis of Tweeddale's Trustees v. Earl of Haddington, February 25, 1880, 7 R. 620; Barr v. Robertson, July 12, 1854, 16 D. 1049. The Dean of Guild, who was a practical and experienced man, had visited the locality, and come to the conclusion that the putting up of the dormer windows referred to had completely taken away the appearance of the place as designed upon the original plan. The neighbouring feuars had made no objection to these windows, and they must therefore be barred by acquiescence from objecting to the proposed alterations.

At advising—