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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lawrie v. Jackson [1891] ScotLR 28_866 (26 June 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0866.html Cite as: [1891] ScotLR 28_866, [1891] SLR 28_866 |
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Page: 866↓
[Dean of Guild, Edinburgh.
Property — Building Restrictions — Application to Dean of Guild for Authority to Erect New Buildings — Right of Neighbouring Proprietor to be Sisted as Party to the Process.
Held that an interlocutor of the Dean of Guild refusing to sist as a respondent to a petition a person alleging a material interest to appear, was a final interlocutor quoad that person, and therefore appealable.
A proprietor applied to the Dean of Guild for authority to take down a villa, and erect on the site thereof tenements of shops and dwelling-houses. The petition was served on the proprietors of the immediately adjoining properties, and, among others, upon the proprietor of the nearer half of a semi-detached villa which adjoined the petitioner's property on the south, and answers were lodged objecting to the proposed erections on the ground that they would violate conditions as to building contained in the titles both
Page: 867↓
of the petitioner and respondents. Before the record was closed the proprietor of the further half of the semidetached villa lodged a minute craving to be sisted as a party to the process. Held ( diss. Lord M'Laren) that the minuter had a sufficient interest to entitle him to be sisted.
Andrew Lawrie, residing at Linkvale Lodge, Viewforth, Edinburgh, presented a petition in the Dean of Guild Court for authority to take down his existing house and erect on the site thereof three tenements of shops and dwelling-houses. He called as respondents the proprietors of the adjoining properties, and, among others, the proprietor of the nearer half of a semi-detached villa adjoining his property to the south.
Three of the immediately adjoining proprietors lodged answers, in which they objected to the proposed erections, on the ground that they would violate the conditions as to building contained in feu-charters granted by the same superior under which both they and the petitioner held their properties. They further stated that William Jackson was also a proprietor of the semi-detached villa to the south, and that as the proposed alterations would affect his interests he ought to be called as a respondent.
Jackson also lodged a minute before the record was closed, in which he craved leave to sist himself as a party to the process, “he having not been called as a party, although he is the proprietor of the one half of the double villa immediately adjoining on the south the ground on which the petitioner proposed to erect said tenements.”
It appeared that Jackson's half of the semi-detached villa was not contiguous to the petitioner's property, although only 10 feet distant from it.
The Dean of Guild having considered the minute and heard parties thereon, refused the prayer thereof.
The minuter appealed to the First Division of the Court of Session.
Upon the motion to have the case sent to the roll, counsel for the petitioner objected, and argued that the appeal was incompetent, as the decree appealed against did not dispose of the merits of the cause, and was not an interlocutory judgment subject to review—50 Geo. III. (1810), c. 112, sec. 36; Act of Sederunt, 12th November 1825, part iii., cap. 1 (Dean of Guild), sec. 1; Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 65.
Counsel for the appellant argued—There was nothing in any Act of Parliament excluding this judgment from review. The Acts cited were in his favour, this being a final interlocutor, for if sustained, the appellant would be completely shut out of this process, in which he had a material interest to appear.
At advising—
The Court repelled the objection to the competency of the appeal and sent the case to the summar roll.
When the case was heard on the question of sist, the appellant argued—The appellant had a substantial interest to protest, for if these buildings were erected his property might be injured. He had at any rate a right to state his case in the Court below, and the Dean of Guild had acted oppressively in refusing to admit him to the process. The rule of the Dean of Guild Court was only to exclude those parties who had no possible right. The appellant and the respondent held of the same superior, and being a real action, this gave the appellant a right to be sisted. His object was not to obstruct but to be heard.
Argued for the respondent—The appellant's interests were fully represented by those who were called as respondents to the petition. He had no argument to submit or plea to urge which was not common to them, and the Dean of Guild exercised a wise discretion in refusing to admit the appellant, whose only object was to cause delay and swell the process. Others of the adjoining proprietors had at different times been in the process, and after being in for some time, had either dropped out or had their answers dismissed— Turner v. Hamilton, February 21, 1890, 17 R. 494.
At advising—
Page: 868↓
The only parties called to answer the petition were a Mr James Barclay, a Mrs Mary Inglis, and a Mrs Reid, and the two last-named lodged defences along with a Mr Currie, but before the record was closed Mr Jackson put in a minute for leave to sist himself as a party. The minute was in these terms—[ His Lordship here read the minute quoted above]. Now, as I have observed, this minute was lodged before the record was closed, and I really cannot see any reason why the Dean of Guild should not have allowed this party to sist himself and put in defences. It ought to be the object of the Dean of Guild to hear all parties who have any interest in the proposed erection. But he has taken his own course, and has thought fit to put the case in such a shape that he should only hear the petitioner and some of the parties interested whom the petitioner has chosen to call, and who, I think, are by no means the only parties who have an interest in this question.
I cannot say that I think the Dean of Guild has acted wisely in this respect. On the contrary, he has been too much in a hurry to get this process carried through. It was urged that the minute did not disclose the grounds upon which the respondent sought to be heard in the Court below, or his right or title to be heard, but I think the minute discloses enough to show that the respondent has a substantial interest in the determination of this question. It was further urged that if the minuter was not allowed to be sisted in the inferior Court he had a remedy open to him by interdict or declarator, but I do not think it is at all desirable that we should encourage proceedings of that kind. On the contrary, it appears to me that this is a case perfectly competent to be finally determined in the Dean of Guild Court, and I do not think that parties should be left to a remedy so expensive and unnecessary. As I have already observed, I think that the Dean of Guild has acted too summarily in this case, and I am for remitting to him to allow this party to be sisted.
The Dean of Guild has a discretion no doubt to exclude parties whose sole object is to obstruct the operations, but here the minuter's interest is substantial. But what the Dean of Guild seems to have thought was, that the minuter was represented by somebody whose interests were identical with his, and therefore he refused to sist him. This is to me a somewhat novel ground for refusing to sist, and therefore I concur in what your Lordship has proposed.
It was in the discretion of the Dean of Guild to admit other parties, but it must be a condition of the exercise of that discretion that the party shall be able to show that he has some interest of a nature fitted for trial in that Court. The exclusion of the appellant does not in any way prejudice his rights, for the superior courts are open to him, and if he thinks his rights are infringed, his proper remedy is by interdict. It does not appear to me that any object can be gained by having questions of this kind tried in the Dean of Guild Court.
Questions of restriction involve delicate questions of law, and the Dean of Guild Court is a tribunal which, in my opinion, is by constitution and mode of procedure utterly unfit to deal with such questions, and I think that this opinion is generally shared in the profession. The Dean of Guild is not a lawyer, but a mechanic, and I cannot see any advantage in encouraging the conversion of the Dean of Guild Court into a Court for determining questions of servitude and heritable rights,
I think therefore that the Dean of Guild acted rightly in refusing this sist.
If the question was one for the discretion of the Dean of Guild, so it is a matter for our discretion also; and I therefore agree with your Lordship that we should remit the case to the Dean of Guild in order that he may sist the minuter.
The Court recalled the Dean of Guild's interlocutor, and remitted to him to sist the appellant and proceed in the cause.
Counsel for the Appellant— Shaw. Agents— Curror, Cowper, & Curror, S.S.C.
Counsel for the Petitioner— D.-F. Balfour, Q.C.— Kennedy. Agents— T. J. Gordon & Falconer, W.S,
