Scottish Court of Session Decisions

By feu-charter dated 29th January 1870, David Deuchar disponed to the Corporation of the Royal Edinburgh Asylum for the Insane part of the lands of Morningside, under certain conditions, inter alia—(2) “That the said corporation shall not be entitled to erect on any part of the stripe of ground hereby disponed houses or buildings other than villas or offices, except with the consent of me and my heirs and successors, and said stripe of ground shall not be used for any purpose injurious to the amenity of the adjoining ground.”

In 1890 Mr Deuchar disponed the superiority of the ground to the Trustees of the Endowment Committee of the Church of Scotland. By disposition dated 9th and recorded 11th November 1895 the Asylum Corporation disponed the ground itself to James Millar, builder, Edinburgh.

Thereafter Mr Millar applied to the Dean of Guild Court, Edinburgh, for warrant “to erect six self-contained dwelling-houses” on the ground. The plans showed a row of contiguous houses of two storeys with gardens in front about 15 feet square, separated by iron railings, and with separate gardens behind.

The superiors opposed the application on the ground that the buildings proposed were disconform to the conditions of the feu-charter, which restricted the petitioner to the erection of “villas.”

On 2nd January 1896 the Dean of Guild sustained this plea, and refused warrant.

Note.—…“But the Dean of Guild is of opinion that the same result would follow if the term is considered with reference to its present use and application. Of late years the public have become familiar with that form of erection which consists of two contiguous self-contained houses, each surrounded on three sides by vacant ground. Each of such houses has come to be known as a ‘semi-detached villa,’ and the Dean of Guild is of opinion that this term has now acquired a definite place in architectural nomenclature, But at the same time the Dean of Guild is clearly of opinion that for the present this is the last modification of the term ‘villa’ which is known to the building trade.

In order to be able to pronounce an authoritative opinion on this point, the Dean of Guild thought it right to call a special meeting of his Court, which was attended by all the members except two, who are merchants. The members present included, besides the Dean of Guild, who is a civil engineer, an architect, house-agents, licensed valuators, and masters of the trades of builders, joiners, and cabinetmakers. The members of the Court were unanimously of opinion that the term villa still denotes exclusively a self-contained house of individual and separate character, standing within its own grounds; further, that if any modification of the term were intended, it would require to be expressed, as by the use of the term ‘semi-detached villa’; and that at the present day the semi-detached villa represented the furthest extent to which the qualification of the original meaning of the term ‘villa’ had been recognised by the building trade.

The Dean of Guild and his Court are unanimously of opinion that the houses proposed by the petitioner would form a row or short street of self—contained houses.”

The petitioner reclaimed, and argued—A restriction of this class on property was to be construed as favourably to the disponee as possible. A villa was a house having ground about it. The proposed buildings fulfilled this condition, having garden ground before and behind. It did not matter that the houses were attached to one another. If the test, as contended for on the other side, was that a villa must have ground all round it, then a mere passage of a foot or two between the

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houses would make them all villas. Such a contention was absurd. The cases showed that when it was contended that a villa should stand alone, the feu-contracts provided that it should be self-contained or detached— Buchanan v. Marr, June 7, 1883, 10 R. 936; Miller v. Carmichael, July 19, 1888, 15 R. 991; Meldrum v. Kelvinside, Estate Trustees, June 21, 1893, 20 R. 853.

Argued for the respondents—The cases quoted by the other side were against their contention. In those cases the word “detached” was put into the charter to prevent the erection Of “semi-detached” villas. On the view of the other side there would be no distinction between “villas” and “dwelling-houses.” But the words in the charter made the reading of these two as synonymous impossible. The opinion of the experts was on the side of the respondents, and the decision of the Dean of Guild Court should be affirmed. The case of Naismith v. Cairnduff, June 21, 1876, 3 R. 863, was analogous to this.

At advising—