Scottish Court of Session Decisions

By tack dated 25th May and 18th June 1791 Archibald Lord Douglas let for ninety-nine years to William Douglas of Brigton, and his heirs, assignees, and sub-tenants, “the park of Dudhope, with the houses and offices thereof, and particularly the materials of the old house of Dudhope and of the other houses on the subjects hereby let.” … It was further provided—“In regard the present houses on the subjects hereby set are in a most ruinous condition, insomuch as to be only proper for a quarry, and as the said William Douglas and his foresaids may, during the currency of this lease, erect different houses and buildings on these subjects, it is hereby specially agreed upon between the parties that at

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the expiry of this tack the whole houses and buildings then upon the subjects hereby let shall be valued and apprised by two neutral persons, one to be chosen by each party, and in case of variance between the said persons, by an oversman to be named by them; and the said Archibald Lord Douglas shall be bound and obliged, as he hereby binds and obliges himself and his foresaids, at the first term of Whitsunday after the expiry of this lease, to content and pay to the said William Douglas and his foresaids the one-half of the sums at which the said houses and buildings shall be so valued and apprised in manner above-mentioned.”

In 1795 the Secretary of State for War obtained a sub-lease of a part of the lands of Dudhope amounting to about 19 acres or thereby, and including the site of the old Castle of Dudhope and its pertinents, all as described in the principal lease.

The sub-lease was for the remaining years to run of the principal lease from and after 1795, and by it the sub-tenant had assigned to him “the whole clauses and obligements” contained in the principal lease incumbent on the proprietor. During the course of their occupancy the sublessee and his successors in office restored and added to the old Castle of Dudhope, and used it as military barracks. They also erected officers' quarters and a hospital. The sub-tenancy expired at Martinmas 1889, and the military authorities removed from the premises.

The Lord Advocate, on behalf of the Secretary of State for War, brought the present action to enforce the obligation contained in the clause of the lease above quoted, and to have the houses and buildings upon the lands valued by two neutral persons.

The pursuer nominated Mr John M'Lachlan, architect, Edinburgh, to act as valuator on his behalf.

The defender refused to make any nomination. He averred that the buildings were not useful to him, and pleaded, inter alia, (3) that the houses and buildings now on the grounds in question were not houses and buildings in the sense of the said tack.

By interlocutor of 12th June 1890 the Lord Ordinary ( Kincairney) ordained the defender to nominate a valuator to act along with the valuator nominated by the pursuer to appraise the houses and buildings on the lands as specified in the summons.

“ Opinion.—…. There remains the defender's averment and relative plea to the effect that the houses which have been built on the ground are not useful to the defender, and are not of the nature of the buildings referred to in the lease. As to their usefulness to the defender, that may possibly form an element in determining the sum which the defender will have to pay, and I do not think that that averment necessitates an allowance of proof. As to the averment that the houses are not of the kind contemplated by the lease, I have come, although not without hesitation, to the conclusion that there ought not to be a proof about that either. Considering the generality of the language of the lease, and the fact that it was a lease for ninety-nine years, it was next to impossible to imagine that it was understood that the tenant was to be restricted to any particular kind of houses, and I consider that far more specific averments on this point would be necessary before a defence of this nature could be regarded as relevantly averred. But I think it would not be quite safe at this stage absolutely to repel this plea, and it seems better to pronounce the operative part of the interlocutor before answer on this point.”

The defender reclaimed, and on 6th November 1890 their Lordships of the First Division pronounced the following interlocutor:—“Remits to Alexander Beith Macdonald, Master of Works, Glasgow, to examine the houses and buildings on the ground in question, and to report quam primum on the character and condition of the same, and how far they are and can be made available for ordinary occupation to the Earl of Home, as proprietor of Dudhope Park, having regard to the circumstances of the neighbourhood, including those of the remainder of Dudhope Park.”

On 1st December 1890 the reporter lodged the following report:—“… The reporter having carefully considered the terms of the remit, visited Dundee and made an inspection of the houses and buildings in the presence of representatives of the parties to the action, from whom he received plans, sections, and other information for his guidance.

“The Park of Dudhope, which is described in the condescendence as extending originally to 46 acres, is now intersected by Lochee Road, an important thoroughfare of Dundee traversed by a line of tramways.

The houses and buildings which form the subject of the remit are situated on the north side of Lochee Road, and together with the Barrack Park occupy a space that approximates the area of 19 acres 1 rood and 4 falls Scots measure, sub-let in 1796 by William Douglas of Brigton to the Secretary for War. The portion of Dudhope Park lying to the south of Lochee Road has been subdivided by streets, and is almost entirely covered with buildings occupied as shops, dwellings, and public works of various descriptions, which have been erected without reference to any code of building restrictions. The availability of the houses and buildings referred to in the remit is therefore not complicated by any question of amenity, as it seems to the reporter that their conversion to any manner of use could not be held to deteriorate their present surroundings.

The houses and buildings are situated on an area of ground fenced by stone walls, which enclose a surface of eight and a-quarter acres or thereby, imperial measure, bounded on the west and north by the Barrack Park and Dudhope Street, and on the south principally by Lochee Road, along which it extends for a distance of about 470 yards. The houses and buildings,

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however, stand back from Lochee Road at an elevation of from 40 to 50 feet above it, so that they do not possess the ordinary benefit of frontage, but depend for access on the present entrance from Dudhope Street, which is a thoroughfare that ascends from the business quarter of Dundee to a residential district on the summit of the town. It is necessary to direct attention to this circumstance in order to indicate the severance of the houses and buildings from the public works on the farther side of Lochee Road, distant only 100 yards in direct line, but separate at least half-a-mile following the nearest vehicular route.

The principal buildings are Dudhope Castle, which during the tenancy of the War Department was occupied as soldiers' quarters, and which stands nearly in the centre of the enclosure; the officer's quarters, which are situated about 80 yards to the east of the castle; and the hospital, which stands about 100 yards to the west of the castle at the north-western angle of the ground. There are also separate buildings, formerly occupied as a guard-room, canteen, kitchen, wash-house, stores, straw shed, cellars, latrines, coal yard, &c., as well as two gunpowder magazines, one of which is at present used for storing the ammunition for the time-gun, and the other reserved for the accommodation of local volunteer regiments. The whole of the buildings are built with stone and roofed with slate, and with the exception of the hospital and gunpowder magazines, are in a condition of extreme disrepair. They have been unoccupied for a year, and according to information given to the reporter, the structural decay has proceeded without check for some years previous to their vacation. In their present condition they are not protected from the weather, and cannot be described as available for any ordinary occupation.

With a view to determining whether the buildings can be made available in the sense of the remit, the reporter begs to indicate that the question depends on the adaptability of what may be described as the three main buildings, viz.:—Dudhope Castle, the officer's quarters, and the hospital. It appears to him that unless these subjects adapt themselves readily to conversion, the other buildings, which are of minor consequence, cannot be regarded as separately available.

(1) Dudhope Castle.—This is a large building containing upwards of 16,000 superficial feet of floorage in the four storeys above the level of the basement. The original fabric is evidently of great age, having undergone extensive alterations in its conversion to a barrack for the accommodation of 180 soldiers, and the building in its present condition is unfit for occupation. The roof is in a state of decay, and the interior structure is insecure—the several floors being supported by transverse beams resting on intermediate upright timbers, and the ceilings have in many instances been lined with sheet-iron to overcome the inconvenience of broken plaster. The ceilings for the most part do not exceed eight feet in height, and access to the different floors is obtained by narrow stairs which are in a dilapidated condition.

It is extremely difficult to see how this building can be made available for ordinary occupation. Apart from the isolation of its position, which has already been described, the structure is quite incapable for adaptation for any commercial purpose. The building could not be strengthened to admit the introduction of mechanical power, and it would involve unreasonable outlay to make the large extent of floor space secure enough to meet the requirements of ordinary storage. The only other resource which suggests itself to the reporter is conversion to habitation, but this also is surrounded with difficulty. The present structural arrangements do not satisfy the requirements of the Dundee Police and Improvement Consolidation Act, 1882, in regard to buildings intended or designed to be used for human habitation, and the reporter, after the most careful consideration, is convinced that nothing short of complete reconstruction would suffice to bring the building into conformity with the conditions imposed by that statute.

(2) The Officers' Quarters.—This is a large three-storey building, of a much more practicable description than the last described, but a considerable outlay would be required in renewing the roof and the window frames, as well as in other external and internal repairs, before it could be made weatherproof, and even then it would not be available for ordinary occupation. The only purpose to which it could be readily applied would be habitation, and in order to render it suitable for this purpose the building would require to be sub-divided, which would involve further outlay such as no proprietor would expend on any other than a valuable permanent structure.

Having regard to the circumstances of the remainder of Dudhope Park, the reporter feels bound to consider the probability that the enclosure within which these buildings stand, as well as the adjoining Barrack Park, will be laid out for feuing, and it does not appear to him reasonable to suggest a large outlay in the adaptation of a building which might prove an obstruction to the development of the rest of the estate.

(3) The Hospital.—This is a large building whose dimensions are somewhat similar to the officers' quarters. There is not much defect in its present condition, but the structural arrangement is very special and not available for ordinary occupation. The cost of converting this building to habitation would be serious, and in view of the probability that its position would embarrass the feuing arrangements of the adjoining lands, the expediency of converting it is extremely doubtful.

None of the other buildings are in themselves available for ordinary occupation, neither are they in the opinion of the reporter capable of adaptation. The gunpowder magazines are not suitable adjuncts of a feuing estate, and the other buildings can only be regarded as obstructions.

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In view of the whole matter remitted to him, the reporter, after the most careful consideration of the question in all its aspects, has arrived at the conclusion that the houses and buildings are not available for ordinary occupation to the Earl of Home as proprietor of Dudhope Park, and that having regard to the circumstances of the neigbourhood, including those of the remainder of Dudhope Park, they cannot be made available for his ordinary occupation.

Without presuming to express an opinion as to whether the enclosure walls form any part of the remit to him, the reporter begs to indicate that they appear to him to be essential to the protection of the property at the present time. The retaining wall at the entrance gate, especially, forms an indispensable adjunct. The walls generally are in fairly good condition, although they require pointing and splicing, and in some parts, of limited extent, rebuilding.”

Argued for the defender—The reasonable construction of this clause was that the only buildings which were to be valued at the termination of the lease were such as were ejusdem qeneris with those on the lands at the commencement of the tack. The only buildings which the defender could fairly be called upon to pay for were agricultural subjects and such as would enhance the value of his estate. The value to the defender of the buildings now on the lands was nil, and therefore there was nothing for a valuator to value. If, however, it was necessary to go through the form of a valuation, then the Court should beforehand determine the principle upon which the valuation should proceed— Frier v. Earl of Haddington, November 22, 1871, 10 Macph. 118.

Argued for the respondent—The clause in the lease was explicit in its terms and did not need construction. There were buildings on the land at the termination of the tack, and the pursuer was entitled under his lease to have them valued, and one-half the estimated value paid over to him.

At advising—