Scottish Court of Session Decisions

Lord President.—This is an appeal from a decree of lining granted by the Dean of Guild of Glasgow. The petitioners propose to erect tenements upon a piece of land situated between Cambridge Drive and Kelvinside

Gardens. This was objected to by several of the petitioners' neighbours as being in contravention of the restriction contained in the petitioners' title. The Dean of Guild repelled the title of all but two neighbours, namely, Mrs Roemmele and Mr Baird, and the other objectors acquiesced in his judgment. As regards Mrs Roemmele and Mr Baird, the Dean of Guild sustained their title, and further held that the erection of the tenements in question was in violation of the restriction contained in the petitioners' titles; but in respect that the petitioners pled—2 (d)—that the respondents were barred by their actings and acquiescence from insisting in the objections, he allowed the petitioners a proof of their averments supporting that plea. The averments, so far as relating to the two objectors, are stated in answer 15 of the petitioners to the objectors' statement of facts as follows:—“Denied. Explained that tenements of four storeys in height have already been erected in Kelvinside Gardens, partly opposite the ground on which the petitioners propose to erect tenements, and also almost wholly opposite the ground owned by the objector Mrs Emilia Elizabeth Bost or Roemmele. … Explained further, that in the immediate neighbourhood, on part of the said lands and estate of Kelvinside, four-storey tenements have also been erected.”

Upon the result of that proof the Dean of Guild sustained the plea and granted the decree of lining. Against that interlocutor the present appeal is brought. The objectors, in the original pleadings, stated some objections to the petitioners' title, but before your Lordships they have not argued these questions, and have restricted their argument to the question of whether the Dean of Guild was right in sustaining the plea of “bar.” In the same way, the petitioners before your Lordships have abandoned all other pleas than that sustained, and in particular they conceded that the objectors had, apart from “bar,” a good title as co-feuars to insist on the restriction in the petitioners' titles, and that the operations proposed were in violation of that restriction.

The question thus raised is an important one, and not directly, I think, covered by decision. It is important, therefore, first to see exactly how the facts stand as to the actings or acquiescence of the objectors, which have, according to the judgment, barred them from insisting on what otherwise would be their right. The community of feuars who are, by the Dean's judgment—agreed to in so far by both parties—in titulo mutually to enforce restrictions against each other are the feuars whose feus are situated within a red line delineated on a plan referred to in the titles. It may be described thus:—The red line begins at the place called Queen Margaret's Drive. It then goes along Cambridge Drive, and then cuts to the southward at a point which I cannot indicate otherwise than by saying that it goes down past the letter “D” on the plan in process in the word “Drive” of Cambridge Drive, and through the letter “A” of Kelvinside Gardens. It then comes south to Doune Terrace, and then goes along Kelvinside Terrace North, and finally meets at Queen Margaret's Drive, where it started. It thus includes an area which consists of stances or lines of building ground facing Queen Margaret's Drive, part of Cambridge Drive, part of Kelvinside Gardens, and Kelvinside Terrace North. Now, what has happened in the past is this: At the north-west of the ground tenemental erections have been made, that is to say, some have been constructed upon that portion of the ground facing Queen Margaret's Drive and the western portion of Cambridge Drive. Nothing of a tenemental character has been put upon the north side of Kelvinside Gardens or upon that portion of Kelvinside Terrace North which is found between the end of Kelvinside Gardens and the beginning of Queen Margaret's Drive. A short piece of tenemental building has been erected on the south side of Kelvinside Gardens opposite Mrs Roemmele's villa and a portion of the ground for which a lining is here sought. There are also pieces of tenemental building facing southwards, and situated in the south-east corner of the area enclosed within the red line.

The whole matter may be summarised thus: As far as Mrs Roemmele is concerned, she has got tenemental buildings on the opposite side of the street opposite her, but she has got none as her next door neighbour. As far as Mr Baird is concerned, he has not got any opposite or behind him, and he has got none as next door neighbour, but there are on various portions, as I have already described, of this area within the red line, undoubtedly tenemental buildings. The proposal of the petitioners is to erect tenemental buildings which will be next door both to Mrs Roemmele and Mr Baird, and which will for the first time invade that peninsula of land formed by Cambridge Drive and Kelvinside Gardens coming together, and which at present is entirely dedicated to the original villa buildings which were erected.

I now propose to examine the authority as to this branch of the law. I do not think it necessary to go through the long series of cases which gradually established the proposition that there might be created by the original act of the superior a right in each of a set of vassals to enforce restrictions in the titles of another vassal with whom they had no direct privity of contract and no direct relation of tenure, because the whole law on the subject may be said to be summed up in two leading cases in the House of Lords, namely, Hislop v. MacRitchie's Trustees, and the Earl of Zetland. These two cases seem to me to lay down with great precision the position of the superior and of the feuar. Thus Lord Watson says of the superior—“I agree with the Lord Ordinary in thinking that the case of the Tailors of Aberdeen v. Coutts does determine that wherever a feu-right contains a restriction on property, the superior, or the party in whose favour it is conceived, cannot enforce it unless he has some legitimate interest. But that case does not lay down the doctrine that an action at the superior's instance, which merely sets forth the condition of his feu-right and its violation by his vassal, must be dismissed as irrelevant because the pursuer has failed to allege interest. Prima facie, the vassal in consenting to be bound by the restriction concedes the interest of the superior; and, therefore, it appears to me that the onus is upon the vassal who is pleading a release from his contract to allege and prove that, owing to some change of circumstances, any legitimate interest which the superior may originally have had in maintaining the restriction had ceased to exist. The law was so stated, and in my opinion correctly stated, by Lord Neaves in the case of Campbell v. Clydesdale Banking Company .”

On the other hand, in regard to the feuar, the same noble and learned lord says—“It is necessary to keep in view that when the feuar has a jus quœsitum, his title, and that of the superior, to enforce common feuing conditions are independent and substantially different rights. The title of the superior rests upon contract, a contract running with the estate of superiority, and burdening the subaltern estate of the vassal. The right of the feuar, though arising ex contractu, is of the nature of a proper servitude, his feu being the dominant tenement; consequently he cannot enforce it against other feuars except in so far as he can qualify an interest to do so. Again, the superior's consent to discharge the condition cannot affect the right of the feuar, and as little can the feuar's renunciation of his servitude impair the superior's right to enforce the condition.”

This difference in the right which exists in the superior and in the co-feuar seems to me necessarily to affect the character of the acts or omissions which will constitute a bar against them seeking to enforce their rights. It is clear that the actings of the superior cannot bind the co-feuar, and vice versa. But the matter goes deeper than that. Observe, for instance, the position which arises in the case of what I may call the first offender, that is, the case of the first feuar contravening the restrictions. The superior may object here at once, for as Lord Watson says, his interest is prima facie conceded, and I am supposing there has been nothing extraneous to destroy the interest which the superior originally had. The superior, therefore, is clearly entitled to stop him. But with the co-feuar it is otherwise. He cannot stop him unless he can shew a proper interest to do so. Accordingly, if the superior allows the act of the first offender to pass, he must either have willingly allowed it, or he must have conceded that all the legitimate interest to stop such acts was gone, whereas the only inference to be drawn from the non-renitentia of the co-feuar is, that he did not consider that in that instance his interest was sufficient to warrant his interfering.

I am therefore not surprised to find that, so far as the decided cases were concerned, there was not produced to us any instance of a decision in which the co-feuar has been held barred from objecting to the contravention by A because he did not formerly object to the contravention by B, the quality of his interest to object to the operations of A and of B not being the same. On the contrary, the decisions of Stewart v. Bunten, and especially of Gould v. M'Corquodale, go quite the other way. In the case of the superior, there were the well-known decisions of Browns v. Burns, and Campbell v. Clydesdale Bank . But, as I have already pointed out, the superior is in a very different position. In other words, it is much more difficult to affirm that the quality of the superior's interest differs as regards each instance than it is to do so in the case of the co-feuar.

I do not think it necessary to go so far as to say there cannot be an instance where the failure of the co-feuar to assert his right in the case of other co-feuars may not be such as to allow the inference to be drawn that he has totally abandoned the right to enforce. Such an inference could strictly be drawn from the fact of his having himself contravened, and the undoubted acquiescence of his author in the dominant tenement may in this matter be reckoned as his own. But once it is settled that the right is a proper servitude on each of the separate feus, it is, to say the least of it, not easy to infer that because A does not stop B, he intends to free also C and D.

Applying these views to the facts of the present case, I come to the conclusion that the objectors are not barred from insisting in their admitted right to stop the proposed contravention of the petitioners. The Dean of Guild seems to me to have erred in limiting interest to one consideration only, namely, the uniformity of building in the whole neighbourhood. I do not doubt that may represent an interest, but it is not the whole interest. A man may, it seems to me, well say—“I do not object to tenements in the neighbourhood; I do object to them next door.” I think also that, within reasonable limits, a man may be allowed to be the best judge of his own interest. Whether the objector Baird could have stopped the erection of the more distant tenements may be doubtful. But, even assuming that he could, I do not think that, if he did not, he thereby forfeited his right to stop them next door. Tua res agitur paries cum proximus ardet is, I think, good law as well as common sense.

The position of Mrs Roemmele is more difficult. But I come to the same result. An opposite neighbour is not the same as a next-door one; and after all there is, I think, a legitimate interest in conserving the oasis of ground between Cambridge Drive and Kelvinside Gardens, which is as yet unspoiled by tenemental buildings. In the words of Lord Kinloch in M'Gibbon v. Rankin, “the locality must doubtless in its own time follow the fate of most city localities, and do so with that unanimous consent which will get the better of special restrictions. Carlton Place of Glasgow, once well known as the residence of her foremost citizens, must descend to a lower rank and to baser uses; but the time is not to be needlessly and injuriously precipitated.” For these reasons I am of opinion that the judgment of the Dean of Guild is wrong, and ought to be reversed.

Lord M'Laren.—The present case is, by the party maintaining the Dean of Guild's judgment, sought to be assimilated to the case of Campbell v. The Clydesdale Banking Co., which was decided on the principle that there had been a general abandonment of the original conditions of feu on the part of the community of feuars. I need hardly say that the case referred to is a very important authority, and for a period extending to nearly forty years it has been understood to regulate the rights of the members of a community of feuars who by tacit consent have relaxed the conditions imposed on them by the superior, and have used their property in a way which they conceived to be advantageous to themselves.

But in that case the action was at the instance of the superior, who was not successful in persuading the Court that he had any interest in the matter other than his interest to maintain his security for his feu-duties. I observe that Lord Cowan, who delivered the leading opinion in the case,

states that the whole body of feuars was at one in holding it to be for their interest to depart from the building restriction; in repudiating it, as neither conducing to their utility nor to the ornament of their several possessions. His Lordship proceeded to observe that the superior's objections on this head had been disproved, and the judgment proceeded on the want of interest on the part of the superior to enforce the building restrictions.

Now, I am far from saying that in a question of this nature the consent, express or implied, of every individual feuar is a necessary step to the assertion of the right of one of them to vary to some extent the conditions by which he and his predecessors in title were originally bound. In the case of Johnstone v. The Walker Trustees (24 R. 1061), which came before this Division, it was assumed that a general departure from a building condition would amount to acquiescence on the part of the community of feuars. But this principle, founded as it is on equitable considerations, is subject to a very important qualification, viz., that the inference of general consent or acquiescence is not to be extended to alterations of a different character from those which have been permitted. On this point Lord Adam observes that the consent to the abandonment of certain building restrictions, implied from acquiescence, does not imply consent to the abandonment of all building restrictions which may be imposed upon the feuars. And in my own opinion the principle is stated to be, that where alterations or variations of the conditions of the feu-right have been permitted, the presumption is not for abandonment, but only for relaxation of the conditions of feu, according to the nature of the variations to which the feuars have presumably consented.

When we consider the facts of the present case, I think it may be taken that the appellants were tolerant of deviations from the conditions of feu which did not interfere with their personal comfort or convenience. They were not made parties to the Guild Court proceedings under which power was given to put up tenement or flatted houses within the area of the superiority, and apparently they did not consider that they had such an interest as would justify their intervention. Now, I think it would be a very inconvenient, not to say inequitable, rule that a feuar who becomes aware of some infraction of building conditions by a feuar from the same superior, but at such a distance from himself that the infraction causes no inconvenience to him, must either apply for an interdict or be taken to have waived his right to enforce the condition in a question with conterminous feuars or disponees. I am putting an extreme case in order to test the argument, because if, in the case supposed, the feuar does not lose his right to object by reason of tolerance or acquiescence where his comfort is not affected, then it is a question of degree, or rather a question of fact in each case, whether his tacit assent or non-repugnantia in one or more cases of deviation from the conditions amounts to an abandonment to all intents of his rights in a question with the community.

In the present case I am not of opinion that the abstention from legal proceedings on the part of the appellants, in cases where they did not conceive that their interests were affected, amounts to an abandonment of their rights to enforce the building conditions. I gather from the proof that Mr Baird's interest to enforce the conditions against the respondents is stronger than Mrs Roemmele's interest. But as I am not satisfied that in the case of either of the appellants there has been an abandonment of their contract rights, I think they are in pari casu in resisting the present application, and that their appeal should be allowed. I may add that having heard your Lordship's opinion now delivered, I desire to concur in it.

Lord Kinnear and Lord Pearson concurred.