Scottish Court of Session Decisions

I think we should remit to the Dean of Guild, with instructions to grant the prayer of the petition if no other objections are stated to it.

Lord Deas—I have no doubt as to the title of the superior to interfere in a case of this kind; but the question regards the merits of the application, which is to prevent the portion of this building above the square storeys from being laid out in the way shown on the plans. The question is, whether the house, which is in the course of erection, consists of not “more than three nor less than two square storeys?” It is not said that any objection lies against the square portion of this building. The square portion stops at the height of the walls, and it is not said they are raised higher than they ought to be. Above the walls there must be a roof of some sort, and again it is not said that this is not to be a sloping roof, nor that the roof shall not be made with the slope of a right angle at the rigging, which is the best form both for throwing off water and for endurance. It is not the most ordinary way for roofs to be constructed, for it is more expensive than a roof with a less angle, and therefore builders do not often construct them so where a less slope will do, but no one objects to the slope being at a right angle. There stand, then, three square storeys covered by an unobjectionable roof, and the question is, what the proprietor may do under this roof? That he may leave it as it is, with the inside space vacant, is undoubted; the question is, whether he may make apartments within it? If it was so meant, it is argued it should have been so said in the contract. Access to the square storeys and to the roof above is got by an outside stair built on at the back of the house, by which separate access is obtained to each flat. No objection is taken to that; the whole objection is to the attic above, and the Dean of Guild says—“The prohibition in the petitioner's title does not seem to have been meant to preserve the amenity of the locality or the ornamentation of the buildings to be erected, but would rather appear to have been inserted on sanitary grounds, and to prevent overcrowding in Bruce Street, which is a comparatively narrow street;” and he goes on to say that the addition of attics to the houses there would be unfavourable to health. But if there be no objection under the title, then objection on sanitary grounds is purely one, not to the kind of building, but to its occupation in this way—it is not to structure but to mode of occupancy. Now, the general rule is that the right of property implies the right to use the property in the way most beneficial to the subject, so long as the proprietor does not go against any express condition of the title. The whole objection here is to the mode of occupancy, and nothing else.

As to the storm windows, restrictions against them are very common in this city on the ground of amenity, but there are none such in this contract; and supposing the space in the roof to be used for dwelling purposes, I see nothing to prevent the adoption of storm windows. The whole objection is that the feuar is utilising part of what belongs to him in a particular way, against which there is no restriction in his title at all.

I agree in the opinion pronounced by your Lordship.

Lord Mure concurred.

Lord Shand—I have come to the same conclusion.

I agree with Lord Deas in thinking that the Dean of Guild is entitled to deal with the question here raised. Questions of this kind have more commonly arisen between neighbouring feuars, and the Dean of Guild has decided these. That being so, I think there is no material distinction between such cases and one like the present between superior and vassal. The question is, whether there is an interest in the superior or in the feuar to give him jurisdiction?

In questions of this kind, where the superior gives out the property and retains merely a money payment, the conditions of the contract ought to be strictly construed. The purchaser who gets the subject, gets it for his own, except so far as restrictions are imposed by his title. On the construction of this contract I agree with your Lordships. Even if the word “square” had been absent, I do not think there would have been any difficulty. It is simply the case of a three-storied building in which the proprietor utilises the attic within a roof of ordinary construction. The Dean of Guild in his note indicates that buildings of this height would be objectionable from a sanitary point of view if continued through this street. The Master of Works, however, was called, and no such objection was stated by him. If on further consideration objections shall arise on public grounds in the same view, the matter will be quite open under this decision; but in a question between superior and vassal under this deed, I am of opinion that the restriction is not such as to prohibit the feuar from doing what he proposes to do.