Scottish Court of Session Decisions

This was an appeal from a decision of the Dean of Guild Court at Dunbar, whereby that Court refused an application by Mrs Jane Kerridge, Kerridge's Hotel, Dunbar, for warrant to erect certain buildings on a piece of ground situated in Bayswell Park, Dunbar, being the ground occupied by Kerridge's Hotel, to be used as a hotel annex for kitchen and other purposes.

The lands upon which Kerridge's Hotel stood, and upon which the petitioner proposed to build, were conveyed to her predecessor, by Thomas Moncrieff Williamson and two others as trustees of the Bayswell Park Company, by a feu-charter, which provided, inter alia, as follows:—“ Second, that our said disponee shall be bound within one year from the date of these presents to erect and complete, so far as not already done, upon the piece of ground hereby disponed, a dwelling-house and offices, all of stone and lime and covered with asphalt, the plans for which have been exhibited to and approved of by us as trustees foresaid, provided always that no buildings of any other description shall be built on the ground hereby disponed without the consent of us as trustees foresaid or our foresaids, and the ground unbuilt upon shall be used exclusively as gardens or for planting, or as pleasure grounds, unless a deviation shall be specially authorised by us or our foresaids as after-mentioned, and our said disponee and his foresaids shall be bound and obliged to uphold and maintain the said buildings and offices in good and complete repair in all time thereafter, and not to use the same for any other purpose than that for which they were erected as hereinafter specified, or for similar purposes, except with the consent in writing first had and obtained of us as trustees foresaid or our foresaids.”

The building for which the petitioner sought the sanction of the Dean of Guild was a wooden structure.

Objections were lodged by Eliza Gray and Catherine Gray, 9 Bayswell Park, Dunbar, and others, the prorietors of feus in Bayswell Park, all holding under the same superiors and subject practically to the same conditions as the petitioner.

The objectors averred—“The proposed erection is in direct contravention of the terms of the feu-charter under which the ground is held. In particular, the proposed building was never sanctioned by the superiors, and it is not of stone and lime and covered with asphalt as stipulated in the feu-charter, but it is an old wooden hut which is believed to have been formerly used for the temporary accommodation of railway or other labourers.”

The petitioner averred in answer—“The erection in question, which is of a temporary nature, is being put up with the

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consent of the superiors, subject to their supervision.”

The petitioner pleaded—“(1) The objectors have no locus standi and no title to sue, and the objections should be dismissed.”

The objectors pleaded—“(1) The building which the petitioner proposes to erect being in direct contravention of the conditions and restrictions contained in the feu-charter of the ground on which the same is to be built, she is not entitled to warrant as craved, and the same should be refused. (2) The said conditions and restrictions being common to the whole feus in the said lands, and having been imposed for the benefit of the whole body of feuars, the respondents have a title and interest to enforce the same.”

T. M. Williamson, writer, Dunbar, one of the trustees of the Bayswell Park Company, and therefore one of the common superiors of the petitioners and objectors, was present in the Dean of Guild Court as the petitioner's agent.

On 5th May 1902 the Dean of Guild Court refused the petition.

Note.—“The building for the erection of which warrant is craved is described in the prayer of the petition as a ‘hotel annex for kitchen and other purposes.’ The petition does not condescend on the building material of the proposed erection, but it was stated on record for the objectors that the ‘proposed building was an old wooden hut, which is believed to have been formerly used for the temporary accommodation of railway or other labourers.’ This is not denied by the petitioner, who produces in process the feu-charter granted in favour of her predecessor, and in which is laid down the following condition, viz.—[ The note then set forth the passage quoted above from the feu-charter]. From the above it appears to the Court that the superior's consent in writing is necessary to the proposed erection. No such consent appears in process, and the Court accordingly has no option but to refuse warrant, as the proposed erection is undoubtedly against the petitioner's own title.”

The petitioner appealed to the Court of Session, and at the calling of the appeal produced the consent of the superiors in writing.

Parties then agreed to the case being sent back to the Dean of Guild.

The appellant moved for expenses.

The respondents opposed the motion, and argued—The judgment to be pronounced of consent would proceed upon writing produced subsequently to the date of the decision in the Dean of Guild Court, and that being so the respondents were entitled to expenses. The Dean of Guild had proceeded on the ground that the conditions of the feu were inserted for the benefit of all the feuars, subject to the superiors' power to consent to a deviation from the conditions. The only habile mode of proving the consent of the superiors in the Dean of Guild Court was by writing. Though one of the superiors had been present at the discussion he could not consent for all. Therefore writing was essential as evidence of consent, though not as a formality. It was to be inferred from the insertion of the conditions in all the feus that they were inserted for the benefit of the feuars and could be enforced by them inter se— Johnston v. The Walker Trustees, July 10, 1897, 24 R. 1061, 34 S.L.R. 791. The necessity for writing as evidence of the superiors' consent to a deviation from the conditions was a protection, which the feuars were entitled to insist upon. It was within the jurisdiction of the Dean of Guild to deal with the conditions of the feu, and if his interpretation of these conditions was wrong no expenses should be found due to or by either party.

Argued for the appellant—The conditions of the feus could not be regarded as mutual between the feuars seeing that they could be dispensed with by the superiors. It was no part of the respondents' contentions in the Dean of Guild Court that writing was necessary, as appeared from their pleas. Of the three co-superiors one had been present at the discussion, and the fact that he did not object should have satisfied the Dean of Guild that the superiors consented. The feu-charter expressly stipulated for written consent where that was intended, and there was no stipulation that the consent required by the petitioner should be in writing. Even if written consent was necessary as between superior and vassal, the co-feuars had no title to insist upon it. Therefore, apart from the fact that written consent had been produced, the appeal should be sustained with expenses.