Scottish Court of Session Decisions

Messrs Andrew Usher & Company, wine merchants and distillers, Edinburgh, proprietors of the Edinburgh Distillery, in the Sciennes, possessed also ground immediately adjacent thereto, and in June 1891 they presented a petition to the Dean of Guild Court for warrant to “erect on the said piece of ground buildings five storeys in height, to be used as bonded warehouses, malt-barns, and relative stores.” The petition was opposed by Alexander Finnie, the proprietor of a backgreen adjoining the ground in question.

He averred—“The erections proposed by the petitioners consist of malt barns, malt deposit, and malt kiln, which are to be placed at a distance of 23 feet 8 inches directly opposite from the back of the respondents' property, and also of bonded stores or warehouses. Said malt-barns, malt deposit, and malt kiln are essential parts of a distillery or brewery. The malt-barn is used for the process of germinating the grain before it is put into the kiln, and the malt-kiln is used for the purpose of taking off the moisture. After the malt is taken off the kiln it is placed into the deposit. There cannot be malt-barns without a kiln and a deposit to put the malt in after it is kiln-dried. The erections proposed by the petitioners are in contravention of the titles which are common to them and the respondents. The petitioners are feuars with the respondents and their authors under feu-disposition by Messrs George Crichton and Michael Hewan Crichton, goldsmiths and watchmakers in Edinburgh, in favour of Alexander Thomson Blair, builder, No. 138 Causewayside, Edinburgh, dated 14th, and recorded in the General Register of Sasines applicable to the county of Edinburgh, for preservation and publication, the 20th, both days of April.1876; and the petitioners, as well as the respondents, are, under the titles in their favour herewith produced, subject to the prohibitions, burdens, and conditions contained in said feu-disposition. Said feu-disposition, which has been produced and is referred to, contains, inter alia, the following prohibition:—‘Declaring further, that it shall not be lawful to the said Alexander Thomson Blair, or his foresaids, to erect or carry on upon the said subjects, or any part thereof, any soap work, candle work, slaughter house, skin work, distillery, brewery, or other manufacture or chemical process of any kind which may be nauseous or noxious to the inhabitants of the neighbourhood thereof…. All which conditions, provisions, and declarations shall not only be recorded in the

Page: 274↓

Register of Sasines, but are also hereby appointed to be validly and sufficiently referred to in the future charters, and other writs or deeds of transmission of the said subjects, otherwise the same shall be null and void.’ Said prohibition affects the ground on which the petitioners propose to build, as well as the ground on which the respondents' houses are built. The proposed buildings are in contravention of said feu-disposition, in respect they are intended to be a distillery or part thereof, and to be used as such, and the petitioners are thereby barred from carrying into effect the proposed erections. Said objection appearing ex facie of the titles produced, this Court has jurisdiction to consider and dispose of the same.”

The petitioners answered—“The respondents' titles are referred to, beyond which no admission is made, and with reference to the allegations of the respondents, it is denied that the erections proposed by the petitioners are in contravention of their rights. Denied that it is proposed to use the alleged buildings either for a distillery or a brewery or other manufacture or chemical process which will prove a nuisance or injurious to the neighbourhood. Quoad ultra the allegations of the respondents are denied.”

The respondents pleaded—“The proposed operations being in contravention of the said feu-disposition the petition ought to be dismissed with expenses.”

Upon 29th October 1891 the Dean of Guild pronounced this interlocutor—“Finds that the petitioners crave warrant to take down certain old buildings on their property at Sciennes, Edinburgh, and to erect on the site buildings five storeys in height to be used as bonded warehouses, malt-barns, and relative stores: Finds that the proposed operations are confined to the petitioners' own property, and can be executed without danger: Finds that the petitioners and respondents hold under the conditions of a feu-disposition granted by Messrs G. & M. H. Crichton in favour of Alexander Thomson Blair: Finds that the said deed declared that it should ‘not be lawful to the said Alexander Thomson Blair or his foresaids to erect or carry on upon the subjects or any part thereof any …distillery, brewery, or other manufacture or chemical process of any kind which may be nauseous or noxious to the inhabitants of the neighbourhood: Finds that the proposed operations would not constitute a contravention of this condition: Therefore repels the pleas-in-law for the respondents, grants warrant,” &c.

The respondent appealed, and argued—The averments of the appellant coupled with the plans produced disclosed a contravention of the feu-contract. The proposal was admittedly to extend the existing distillery. In any view, a malting business was a work of the kind struck at by the feu-contract. If the Court did not dismiss the petition de plano, at all events the appellant was entitled to an inquiry either by proof of his averment or by a remit to an architect. There was not here any question as to the Dean of Guild's jurisdiction in cases of nuisance nor as to what was the use to which the premises were to be put; the matter was one of the construction of a definite prohibition in a feu-disposition which the Dean of Guild was bound to inquire into— Robertson v. Thomas, June 17, 1887, 14 R. 822.

Counsel for the respondent were not called on.

At advising—