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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crawford v. Darroch and Another [1907] ScotLR 416 (13 March 1907) URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0416.html Cite as: [1907] ScotLR 416, [1907] SLR 416 |
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Page: 416↓
[Dean of Guild Court, Gourock.
By a feu-contract several pieces of ground were disponed to a vassal. The vassal was taken bound to build a dwelling-house on each piece of ground “and to maintain the same in sufficient repair.” The vassal further bound himself to build the houses “on the exact line to be fixed by” the superior or his agent. Held that a singular successor in one of the pieces of ground was not entitled to alter the building line without the consent of the superior.
By feu-contract dated 19th April and 11th June 1845, the factor and commissioner for General Duncan Darroch of Gourock
Page: 417↓
disponed to John Knox Stuart, surgeon in Glasgow, inter alia, a piece of ground marked number one on the plan annexed to the feu-contract. The said piece of ground was situated on the north side of the turnpike road mentioned in the feu-contract, afterwards known as Cardwell Road. The feu-contract contained the following provisions:—“For which causes and on the other part the said John Knox Stuart binds and obliges himself and his heirs and successors in so far as not already done to build fronting to the said turnpike road upon each of the said pieces of ground marked numbers one …. in the foresaid sketch, within twelve months from the date of these presents, a good and substantial dwelling-house of not less and not more than two stories in height, roofed with slates, and of the value of three hundred pounds sterling at least, and to maintain the same in sufficient repair …. and the said John Knox Stuart further engages and binds and obliges himself and his foresaids to keep the said houses to be built fronting to the said turnpike road at least twenty-five feet back from the centre thereof …. and to build the whole of the said houses in the exact line to be fixed by the said General Duncan Darroch or his agent ….”
At the date of the feu-contract Cardwell Road was thirty-three feet wide. Subsequently it became fifty feet wide, a strip of seventeen feet having been added to the road on the side furthest away from the piece of ground in question. The existing buildings on the said piece of ground were twenty-five feet from the centre of the road as it existed at the date of the feu-contract.
On 7th February 1906 John Wilson Crawford, solicitor, Greenock, who was in right of the piece of ground marked number one on the plan annexed to the feu-contract of 1845, presented a petition to the Dean of Guild Court of Gourock for warrant to alter the said buildings in conformity with plans produced. The plans showed that the petitioner proposed to bring forward the front wall of his buildings to the line of the Cardwell Road. Objections to the proposed alterations were lodged by Duncan Darroch, Esq., of Gourock, the superior, and also by Alexander Duthie, the Master of Works of the Burgh of Gourock. The superior maintained that the proposed alterations were in contravention of the feu-contract. The Master of Works stated further objections which it is not necessary to particularise.
On 19th April 1906 the Dean of Guild refused the prayer of the petitioner so far as relating to buildings proposed to be erected by him within twenty-five feet from the centre of the turnpike road (as existing in 1845).
Note.—“Objections to the warrant craved by the petitioner have been lodged by the superior and the Master of Works. In each case the objections relate to the petitioner's building line in … Cardwell Road. …
“… The difficulty has arisen through the recent widening of that road, and the petitioner seeking to take advantage of such widening to bring forward his building line to the edge of his property. It is admitted by the parties that when the feu was given off and the existing buildings erected Cardwell Road was a turnpike road 33 feet or thereby in width, and that the recent widening of the road to 50 feet was due to the superior allowing a strip of ground on the opposite side of the road to be thrown into the street. In my opinion the turnpike road ex adverso of the petitioner's ground still remains 33 feet wide, being its width when taken over by the Council under the Roads and Bridges Act, and the petitioner is bound to keep his building line 25 feet back from the centre of the 33 feet road. Before the superior's generous gift, the width between the buildings on the two sides of Cardwell Road was by the Turnpike Acts fixed at 50 feet. If the petitioner were now entitled to bring forward his building line as he proposes, the width would still be 50 feet, and the superior's gift would thus be practically of no avail. In any question dependent upon the distance of buildings on the south side of Cardwell Road from the centre line of the turnpike road it would be manifestly unfair that the superior or his successors should suffer by the centre line of the turnpike road being laid down nearer his ground than it was before the superior gave up ground to improve the street. Had the strip of ground gifted by the superior been, say, 10 feet less in breadth than it actually was, the street would have been 40 feet wide, and the petitioner—if his contention is correct—would have been entitled to bring his building forward to 5 feet from the north line of Cardwell Road, and the superior would have been entitled to build 18 inches or thereby from the south line of the street as widened. In this way the distance between the buildings would be less than 47 feet, whereas, had the superior not given ground for the widening, that distance would have been 3 feet greater. …”
The petitioner appealed, and argued—The petitioner's obligation was not to build within 25 feet of the centre of the turnpike road, and the turnpike road must be taken as it now existed. A singular successor on inspecting the record would find that he was restricted from building within 25 feet of the centre of a turnpike road. He was entitled to go to the subjects in order to identify the point from which the 25 feet were to be calculated. He was not bound to look at the plan, which did not enter the record. (2) As to the obligation to build on the line fixed by the superior, it did not appear that any line had been fixed. In any event, that obligation was not continuous and applied only to the original buildings.
Argued for the respondent Darroch—(1) It was impossible to fix a building line with reference to a moveable boundary. The centre of the road must therefore be taken
Page: 418↓
as at the date of the feu-contract. (2) The vassal was bound not only to build the houses on the line to be fixed by the superior, but also to maintain them in good and sufficient repair. That showed that the obligation was continuous and not limited to the original building— Forrest v. Governors of George Watson's Hospital, December 15, 1905, 8 F. 341, 43 S.L.R. 183. It was to be presumed that the line had been duly fixed by the superior — Sutherland v. Barbour, November 17, 1887, 15 R. 62, 25 S.L.R. 66. At advising—
Following upon the feu-contract the houses were built, and were built upon a line which is admittedly twenty-five feet from the centre of the road as it then existed. Since the date of the feu-contract, however, the width of the road has been increased by the addition of a strip of ground on the side away from the houses, and the successor in the feu of one of the houses, which is No. 1 on the plan, now wishes to extend the buildings on his feu up to the edge of the road as it at present exists, maintaining that, in view of the additional breadth which has been added to the road, the front wall of his house will not be less than twenty-five feet from the middle of the road.
We had an interesting argument from Mr Moncrieff on the clause “twenty-five feet back from the centre thereof,” the question being whether, in view of the centre of the road being a relative term, the stipulation must not always be read in the light of the facts existing at the time of its application. This raises a question of some difficulty which I do not think it necessary to decide, because the matter is really ruled by the following clause—that the buildings are to be erected on the exact line to be fixed by the superior. That clause is obviously not meant to apply to one time alone. I think its effect was to make it a rule of the feu that the line once settled was to be thereafter maintained, and that the only person who could release the vassal from the restriction was the superior. Now, here it is the superior who is objecting to the vassal's proposed alteration, and there is no doubt of his title to do so. Accordingly, I am clearly of opinion that the practical result arrived at by the Dean of Guild was right, and that the appeal should be dismissed.
The Court refused the appeal.
Counsel for the Petitioner (Appellant)— Graham Stewart, K.C.— Moncrieff. Agents — Simpson & Marwick, W. S.
Counsel for the Respondent Darroch— Sandeman. Agents— Skene, Edwards, & Garson, W.S.
Counsel for the Respondent the Master of Works— G. Watt, K.C.— Munro. Agents — Paterson & Salmon, W.S.
