Scottish Court of Session Decisions

Robert Meldrum, writer, Glasgow, and Mrs Macarthur were proprietors of two contiguous feus in Kirklee Road, Kelvinside, Glasgow, granted in 1886 and 1887 respectively by Miss Montgomerie, Moffat, and J. B. Fleming, writer, Glasgow, surviving trustees for the Kelvinside Estate Company as superiors. The feu-contracts were in similar terms, and contained the following stipulations:—“Declaring, as it is hereby expressly provided and declared, that the said second party [the feuars] and their foresaids, and the tenants and possessors of the said piece of ground hereby feued, or of the buildings erected or to be erected thereon, shall not have power to exercise or carry on, erect, or set down, and they are hereby expressly prohibited, interdicted, and discharged in all time coming from exercising, carrying on, erecting, or setting down upon or within the said piece of ground hereby feued, or any part thereof, or the houses or buildings erected or to be erected thereon, or any of them, any trade, business, process, occupation, work or manufacture of any kind or description whatsoever, and from using the said piece of ground, or any part thereof, for any other purpose than for the erection of a private self-contained villa, to be used and occupied solely as a private self-contained dwelling-house for the residence of one family only, and for no other use or purpose whatsoever, without the express consent in writing of the said first party [the superiors] or their successors in the superiority of the said piece of ground hereby feued; and, in particular, but without prejudice to the foresaid generality, from exercising or carrying on, erecting or setting down upon or within the said piece of ground hereby feued, or any part thereof, or the buildings erected or to be erected thereon, or any of them, any trade, business, process, occupation, work or manufacture of brewing, baking, distilling, tanning, calico printing—[ here follows a most comprehensive list of prohibited occupations]—or shop or warehouse, or place for the sale of goods or commodities of any kind, or public work, or manufactory of any kind, or yard for masons, wrights, smiths, plumbers, coopers, or other trades, … which declaration and prohibition shall be and is hereby created a real lien, burden, and servitude upon and affecting the said piece of ground hereby feued, and the buildings erected or to be erected thereon, in favour not only of the said first party and their heirs and successors, but also of their and their predecessors, feuars and disponees, past and future, in the said lands and estate of Kelvinside, and each of them, and the same shall be and is hereby constituted a real lien, burden, and servitude upon the other parts of the said lands and estate of Kelvinside still belonging in property to the said first party, lying within 100 yards of the said piece of ground hereby feued in favour of the second party and their successors therein; and the said first party bind and oblige themselves and their foresaids to insert a similar declaration and prohibition in all dispositions and feu-rights to be hereafter granted by them, of other parts of the said lands and estate of Kelvinside, still belonging to them, lying within 100 yards of the said piece of ground hereby feued … Providing always, that if the said declaration and prohibition shall at any time be discharged by the said first party or their foresaids, in whole or in part, as affecting the said piece of ground hereby feued, they shall ipso facto be entitled in like manner to discharge the same to the same extent as affecting the said other parts of the said lands and estate of Kelvinside, lying within 100 yards of the said piece of ground hereby feued; expressly reserving always to the said first party and their foresaids full power and liberty at any time to grant permission and authority to any of their feuars or disponees to erect churches, schools, halls, or other public buildings, on any part of the said lands and estate of Kelvinside, or to use or occupy any lodging, villa, dwelling-house, or other buildings already erected on any part of the said lands and estate of Kelvinside for any of these purposes, notwithstanding the above declaration and prohibition; and expressly reserving

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also to the said first party and their foresaids full power and liberty, by themselves or their tenants, to open and work quarries within the foresaid 100 yards of the said piece of ground hereby feued, and to erect and use steam-engines, steam-cranes, and all buildings and machinery deemed necessary by them in connection therewith, or in connection with any buildings presently erecting or that may be erected upon any part of the said lands and estate of Kelvinside, notwithstanding the above declaration and prohibition.”

Mr Meldrum and Mr Macarthur objected to a brick building with a wooden erection adjoining, which they alleged that the superiors had erected in contravention of their feu-contracts upon ground still un-feued within 100 yards of their feus, and which were not used or required in connection with the opening or working of any quarries, or the erection of any buildings on the estate of Kelvinside, but were used by joiners of the name of Marshall. Upon the Kelvinside trustees refusing to remove these buildings, they brought an action of declaration in 1891 against the said trustees to have it found and declared “(1) that the defenders are bound to implement, fulfil, and observe the whole terms and conditions of the feu-contracts; … (2) that the buildings recently erected by or with the consent of the defenders … have been erected and are occupied and used in contravention of the terms of the said feu-contracts; (3) that the defenders are bound forthwith to remove the said buildings: And further, it having been so found and declared, or whether it shall be so found and declared or not (1) the defenders ought and should be decerned and ordained, by decree foresaid, forthwith to remove the said buildings.”

The defenders pleaded, inter alia,—“(3) The said buildings not having been erected or used in contravention of the feu-contracts founded on, the pursuers are not entitled to have the same removed or to have their present use interdicted.”

The Lord Ordinary ( Kyllachy) allowed a proof from which it appeared that the buildings objected to had been erected by the Caledonian Railway Company to replace a small estate office they had taken down in the course of extensive operations, that they were of an insignificant character and were chiefly used for occasional meetings between Mr Fleming and the surveyor or other persons about the estate, that surveying instruments were sometimes kept there, and that Marshall, a joiner in the service of the Kelvinside trustees, at times worked at repairs, &c., within these buildings. It was proved that no quarry had been opened or permanent building erected since 1890. Mr Fleming deponed that the buildings would be useful in future building operations, while a skilled builder deponed to these erections being quite unsuitable on account of their limited size for use in connection with such operations.

Upon 21st December 1892 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor—“(1) Finds, decerns, and declares, in terms of the first declaratory conclusion of the summons: (2) Quoad the second declaratory conclusion, Finds, decerns, and declares, in terms thereof, so far as regards the office or store forming the westmost of the brick buildings mentioned on record, and the wooden store or workshop situated behind the same: and (3) Finds that the defenders are bound forthwith to remove the said office and store, and wooden store or workshop: And decerns and ordains the defenders to remove the same forthwith accordingly,” &c.

“ Opinion.—The question in this case has now come to be confined to the brick building and store behind, which are admittedly not used by the railway company, and which the pursuers describe as a ‘joiner's workshop and store, occupied by the firm of Marshall & Company, joiners.’

The proof lately led related entirely to these buildings, and I have now to decide whether they have been erected in contravention of the pursuers' feu contracts.

There is no doubt that both erections are within 100 yards of the pursuers' feus, and supposing that to be important, I think it is also proved that they are appreciably injurious to the amenity of the pursuers’ villas. Further, they are clearly not self-contained dwelling-houses or offices of self-contained dwelling-houses, so as to be outwith the terms of the prohibition upon which the pursuers found.

The defenders, however, say that the buildings in question are ‘estate buildings, forming a store or workshop in connection with the feuing of the estate, the repair of farm buildings, and the erection of future buildings by future feuars.

Mr Fleming, whose evidence I accept, explains that since April 1890 the witness Marshall has been a joiner in the defenders' employment, although doing odd jobs for others; that the store (a wooden building) was erected in 1891 as a substitute for a former joiner's shop which had been taken down, and the office (a brick building) was erected by the railway contractor in 1890 as a substitute for an old building used as an estate store at Bellshaugh.

In these circumstances the defenders contend that both erections fall within the exception or reservation in the feu-contract which provides that notwithstanding the above declaration and prohibition the superior shall have ‘full power and liberty by themselves or their tenants to open and work quarries within the foresaid one hundred yards of the said piece of ground hereby feued, and to erect and use steam-engines, steam-cranes, and all buildings and machinery deemed necessary by them in connection therewith, or in connection with any buildings presently erecting or that may be erected upon any part of the said lands and estate of Kelvinside.’

The question, therefore, which I have to decide is, whether the buildings complained of fall within this reserved power. I am of opinion that they do not. I do not say that the point is free from doubt, but I do not think that the exception above

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expressed covers buildings of the description of those in question—buildings used for general estate purposes, and not erected or used in connection with particular buildings erecting at the date of the feu-contract or since erected on the estate.

I rather think that the exception or reserved power only applies to such buildings as are proper adjuncts either of the quarries referred to or to the self-contained dwelling-houses erected in compliance with the conditions of the feu, including, of course, offices for such dwelling-houses, and also such temporary structures as may be required in the process of building. It cannot, I think, be said that the erections complained of are of that character.

It is admitted that since sometime before 1890 no feus have been given off or buildings erected on the estate, and there are no buildings which are now in contemplation.

I must therefore, I think, grant the pursuers decree in terms of their summons, in so far as regards the brick office or store and the wooden shed or store mentioned on record.”

The defenders reclaimed, and argued—(1) The superiors were under no restriction. It was intended to create a real burden upon the lands of the feuars, and whether that was effectually done or not—probably not—it was they alone who were under an obligation not to put up certain erections. The superiors truly only bound themselves to put similar restrictions upon future feuars. They did not restrict themselves while the ground remained unfeued. In case of doubt the law was in favour of freedom. Further, they had the power of giving themselves consent in writing to erect such a building, or of discharging the prohibition in their own favour if that were necessary. But (2) the buildings in question were saved by the express reservation inserted by the superiors in the feu-contracts. They were “deemed necessary by them in connection with buildings that may be erected upon the estate of Kelvinside.” It would be too narrow a meaning of the reservation to say that such buildings must be in connection with buildings actually in course of construction. The superiors contemplated building operations in connection with the estate in the near future, when they would find the buildings objected to very useful. The buildings were at present not used as a joiner's shop or Wright's yard, but for estate purposes, although Marshall might work in them.

Argued for respondents—(1) This was a mutual contract under which, fairly construed, the superior could not erect any building on ground unfeued within 100 yards of his feuars' villas, which they could not erect on their feus unless it fell under the express reservation. (2) This was not such a building as his feuars could erect. (3) It fell under the class of buildings specially prohibited, being of the nature of a shop or wright's yard. (4) The superior could only free his ground still unfeued by freeing the pursuers’ feus. (5) The building did not fall under the reservation. It had not been built “in connection with any buildings presently erecting,” and there were no such buildings now in connection with which it could be used. A possible use in the future did not justify its continuance.

At advising—