Scottish Court of Session Decisions

On 5th July 1872 the Procurator-Fiscal of Edinburgh presented a petition to the Dean of Guild Court, stating that a tenement had become dangerous, or at least ruinous, decayed, or insecure to such an extent as to cause apprehension for the lives of the inhabitants and of the public, and craving the Court to ordain the respondents, as proprietors, to take down or render the tenement secure.

The Court, after visitation, remitted to Mr Adam Beattie, builder in Edinburgh, to inspect and report. Mr Beattie presented a report, dated 8th July 1872, in the following terms:—“In obedience with a remit from the Lord Dean of Guild and his Council, the Reporter has examined the tenement No. 98 High Street and corner of Blackfriars Street, alleged to be in a dangerous condition, and has found it to be in the state set forth in the petition. The insecurity of the building rests in the pillars and arches of the piazza, and in the west gable, which they carry. On account of the enormous weight of the west gable, the pillars and arches should have been executed in Craigleith stone, in place of the soft stone which has been used. Iron beams should also have been built into the wall over the arches, which would have tended to distribute the weight, and the the structure together. The construction is especially faulty over the centre and southmost arches of the piazza, where the entire weight of the piers to the top of the tenement (a height of four flats) is thrown on the voids, which is a direct deviation from the original plan, which shows the weight of the masonry above equally distributed over the arches and piers. The arch stones are very much crushed and damaged, especially those in the centre arch, and the same remark is applicable to the piers which carry them—notably the southmost one—which, besides being cracked, has been thrust from its position one inch off the plumb on five feet. The stringcourses and corbels, and several of the sills and lintels of the windows, are broken, and off the level. The Reporter has considered a variety of ways by which strength and security might possibly be added to the present structure; but, after careful consideration, has come to the decision that the effectual and certain mode of overcoming the difficulty will be by taking down the west gable and the piazza to the ground. The Reporter is of opinion that the execution of the remedy suggested in this report, if approved of, should not be delayed, for if any of the arch stones which have been so severely crushed were to give way, the result might be most disastrous.”

On 9th July 1872 the Dean of Guild issued the following decision, the petitioner and respondent Swan being present:—“Having resumed consideration of this petition, with the report by Mr Adam Beattie, No. 2 of process, and heard the respondent James Swan, approves of the report: Finds, in terms thereof, that the tenement in question is in the state set forth in the petition, more particularly the pillars and arches of the piazza in front of said tenement, and the west gable thereof: Therefore ordains the respondent to take down the whole of the said west gable, and the said pillars and arches, and to remove and clear out the same; and failing their commencing to do so within the next twenty-four hours, grants warrant to the petitioner to employ proper persons to do so at the expense of the respondents; as also to sell the materials: Grants warrant to officers of Court to remove tenants and occupants if necessary; in either case appoints the work to be done at the sight and to the satisfaction of the said Adam Beattie, under such directions as he may see proper to give in the doing of it, and him to report to the Court when he sees cause during the progress of the work: Quoad ultra continues the cause.”

On the 11th July 1872 the respondents produced and lodged in the Guild Court the following report from Messrs Peddie and Pilkington, architects:— “We have to-day examined the tenement No. 98 High Street and corner of Blackfriars Street with a view to judge of its stability. We have also read a report by Mr Adam Beattie, builder, dated the 8th of July current, under remit from the Dean of Guild Court. We have to state that we cannot concur in the description given in said report, which seems to us to convey an exaggerated expression of any insecurity which may exist in the building, and, consequently, that we cannot concur with Mr Beattie in thinking any such sweeping measure as the immediate taking down of the building in any degree called for. We are of opinion that, even granting a much greater degree of insecurity in the building than we see any grounds to suspect, the building might be made temporarily quite secure by shoring and ties, so as to admit of the carrying out of operations to insure its permanent stability.” The Court having considered that report, adhered to the interlocutor of 9th July.

The defenders appealed to the Second Division of the Court. On the same day this farther minute for the Fiscal was laid before the Court:—“The Procurator-Fiscal stated to the Court that, since this case had been before the Court in the morning, notice of appeal to the Court of Session had been given on the part of the respondents, and that, in these circumstances, it was necessary that he should now move the Court to regulate matters regarding interim possession, in terms of the 79th section of the Court of Session Act 1868. In these circumstances, the petitioner moved the Court of new to appoint him to employ proper persons to execute forthwith the work appointed to be done by the interlocutor dated 9th instant, and also to clear out the materials and sell the same, and remove tenants and occupants so far as necessary, all as provided by said interlocutor.” The Dean of Guild pronounced the following interlocutor:—

“Edinburgh, 11th July 1872.—Having considered the minute for the Procurator-Fiscal of this date, and heard the respondents' procurator, and the Procurator-Fiscal thereon, and having again inspected the tenement in question, in respect it appears to the Court that the said tenement is manifestly insecure, and the west gable thereof is in imminent danger of falling before the appeal intimated against the interlocutor of the 9th instant can be heard and disposed of, and in respect that no definite mode of putting the said gable in a state of security has been proposed by the respondents, grants the prayer of the said minute; and in

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terms thereof, appoints the petitioner to employ proper persons to take down the whole of the said west gable and the said pillars and arches, and to remove and clear out the materials, and sell the same; and grants warrant to officers of Court to remove tenants and occupants so far as necessary, and decerns.”

In addition to the appeal Messrs M'Kellar and Swan presented a note of suspension and interdict, which the Junior Lord Ordinary reported to the Inner House, and the whole matter came before the Second Division at the same time. The appellants maintained that the danger had been exaggerated, and produced additional reports by Messrs Peddie and Pilkington, and other architects and men of skill, to that effect.

J. Campbell Smith for the appellants.

Solicitor-General for the respondent.

The Court held that as the tenement was admittedly insecure they ought not to interfere even with the interim execution of the order of the Dean of Guild; but as there port of Messrs Peddie and Pilkington had not been judicially considered by the Dean of Guild, they remitted to him to consider the suggestions therein made, but under the express condition that this should not be held to interfere with the interim execution of his order.