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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Young v. Guthrie [1871] ScotLR 8_371 (23 February 1871) URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0371.html Cite as: [1871] ScotLR 8_371, [1871] SLR 8_371 |
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Page: 371↓
The superior of two conterminous feuars bound each of them to build a house within two years after acquiring the feu, and to gable together. Held that one feuar who had built a house had no right to compel his neighbour, who had not built a house, to pay half the expense of the mutual gable, and that the obligation to build was enforcible by the superior only.
This was an action by James Guthrie, builder in Stirling, against William Young, residing in Stirling, concluding for payment of £37, 18s. 2
d., being a half of the expense of the north gable of a dwelling-house, and of £7, 14s. 5 1 2 d., being a half of the expense of the garden wall running westward in a line with said gable, lying on the south side of Cowane Street in Stirling, both gable and wall having been built by the pursuer, and they and the relative ground being marked No. 40 on the plan of the lands there of Cowane's Hospital in Stirling, and belonging to the pursuer. The defender had acquired right to the piece of ground next to the pursuer's feu, but had erected no building upon it. The defender's author had acquired the piece of ground at a public sale from Cowane's Hospital, conform to articles of roup and minutes and additions thereto, in 1852. By these articles of roup and additions, and minute of sale annexed thereto, it was provided that a dwelling-house should be built on said lot within two years after, and it was also provided that the houses to be erected should gable together. 1 2 The Sheriff-Substitute ( Sconce) found—“That the pursuer's house is in the contemplated position, and that the defender is bound to gable with him; and further, that as by the articles the feuars are bound to gable together, and that as the pursuer has, in pursuance thereof, erected a mutual gable between the defender's lot and his, he has a good title to sue for half gable; that the conditions of sale being that the lots shall be sold for building purposes, and that the purchasers of lots shall erect dwelling-houses within two years; and the defender is now bound to pay the pursuer for the half of the said mutual gable. As to the half of the boundary walls claimed, that the fence stipulated in the articles and minutes, and even in the pursuer's own disposition, being a hedge, the defender is not liable to the pursuer in half of the expense of the walls which he has thought proper to build, and assoilzies the defender from the claim therefor.”
The Sheriff ( Blackburn) found—“That on a sound construction of the original articles of roup of 1802, as altered and added to by subsequent minutes, and in particular by the minute of roup of 11th February 1837, the defender is not bound to build on his said lot within any limited time, and therefore finds that he is under no special contract with the pursuer at present to pay for the said mutual gable; and to that effect and extent alters and recalls the interlocutor of the Sheriff-Substitute appealed against; and quoad the pursuer's present claim for payment of the half of the expense of the mutual gable, sustains the defender's appeal, and dismisses the action.”
The pursuer appealed.
Guthrie Smith and R. V. Campbell for him.
Shand and Asher for respondent.
The. following cases were referred to in the discussion:— Earl of Moray, 21 D. 33, Bell's Dec. (Boss), p. 403; Wilson, H. L., 12th July 1870; Thorburn, 10 S. 822; Law, 18 D. 125.
At advising—
Page: 372↓
Now, both the pursuer and the defender were expressly under this condition, but it is a condition in favour of the patrons, subject to any alteration they may make, and enforcible only by them. There is also this stringent alternative, that if the condition is not complied with the lots are to revert to the hospital.
The whole case depends on the question whether such a condition, of which it cannot be said that the patrons were hound to insert it in all their future grants, can be enforced by each feuar against the others. I am of opinion that it cannot. There is no such community of interest as would enable the feuar to say, “I shall put myself in the place of the patrons, and, though they may not be willing to enforce it, I will.” There is no jus quæsitum to maintain the integrity of the plan.
There is nothing in the feu-right which enables me to arrive at the conclusion that the superior was bound to maintain the feuing plan. The patrons saw cause to make changes in the plan; this was quite within their power. Now, it appears to me that the power of the patrons to make changes is exclusive of the idea that the condition was enforcible by one feuar against the others. If, then, it be true that one feuar could not force another to build, to what does the case come? Can the pursuer rest his claim for the one-half of the expense of the gable on his right at common law, though advantage has not been taken by building on it? That being clearly impossible, the only basis for such a claim would be contract; but where no such contract exists, and where the party sued cannot be compelled to do the thing which would make him liable, I think the basis of the right is wanting. I am of opinion that the interlocutor of the Sheriff should be affirmed, though on grounds somewhat different from those on which he has proceeded.
The other Judges concurred.
Solicitors: Agent for the Appellant— Alex. Cassels, W.S.
Agent for the Respondent— William Mitchell, S.S.C.
