Scottish Court of Session Decisions

This was an appeal against an interlocutor of the Dean of Guild of Glasgow refusing a lining to J. A. Mactaggart & Company, builders, Bath Street, Glasgow, who had presented a petition craving authority to erect certain buildings, consisting of tenements of dwelling-houses to he occupied in flats, on a steading of ground belonging to them and situated in Bute Gardens, Hillhead, Glasgow. Objections to the lining being granted had been lodged by (1) Mrs Isabella M'Callum or Harrower, wife of Peter Harrower, East India merchant, Glasgow, and others, the proprietors of the steadings of ground on which Nos. 9 to 11 and 14 to 22 Bute Gardens were erected, which steadings were bounded on the west by the central line of the street on the opposite side of which the petitioners proposed to erect their buildings; and (2) The National Heritable Property Association, Limited, the original owners, now divested, of the whole ground.

The facts in the case appear from the following interlocutor pronounced on 18th May 1906 by the Dean of Guild ( King):—“The Dean of Guild finds in fact (1) That the petitioners are proprietors of subjects situated on the west side of the street known as Bute Gardens, Glasgow, bounded on the south by ground belonging to J. B. Macbrayne's trustees, on the north by ground belonging to Robert Miller's trustees, and on the west partly by ground belonging to Robert Wyllie Hill, and partly by the centre line of a lane; (2) that the petitioners ask authority to erect on the said subjects two tenements of dwelling-houses, the tenements to be of four storeys in height, and the houses in the tenements to be of five, six, and seven apartments, all as shown on the plans; (3) that on the east side of the street called Bute Gardens, along the whole length thereof, and opposite, to the subjects belonging to the petitioners, there are situated self-contained houses belonging to the objectors Mrs Harrower and others; (4) that the ground on which these self-contained houses are built, and the subjects on which the petitioners propose to erect the said tenements, belonged at one time to the National Heritable Property Association, Limited, the said ground and the said subjects being parts of that portion of the estate of Lilybank acquired by the Association in or about the year 1873; (5) that in 1879 the Association sold and conveyed the subjects now belonging to the petitioners to George M'Lellan Blair and Robert MacBrayne, retaining the ground now belonging to the objectors Mrs Harrower and others until 1885–1887, when the Association sold and conveyed it to trustees for the firm of Lindsay & Benzie, builders, Glasgow; (6) that it is averred by the petitioners, and not denied by the objectors, that the Association, have disposed of the whole ground originally held by them, and have now no interest in the neighbourhood; (7) that in the disposition granted by the Association to George M'Lellan Blair, dated 26th September 1879 and subsequent dates, and recorded G.R. (barony and regality of Glasgow) 15th October 1879, and in the disposition granted by the Association to Robert Macbrayne, dated 8th October 1879, and recorded as aforesaid on 15th October 1879, the subjects now belonging to the petitioners were conveyed under the restriction ‘that no buildings shall be erected on the said plot of ground other than tenements of first-class self-contained dwelling-houses, and stables and offices in connection therewith, or a stable and offices containing suitable accommodation for one private dwelling-house, and to be occupied exclusively in connection with a private dwelling-house and not as a livery stable’; and the said restriction was declared to be a real burden affecting the lands now belonging to the petitioners, and that these deeds were duly recorded for infeftment in the Register of Sasines; (8) that in the conveyances by the Association of the ground now belonging to the objectors Mrs Harrower and others—these conveyances being three contracts of ground annual between the Association on the one part and trustees for the firm of Lindsay & Benzie on the other part, the first of which is dated 14th, 16th, and 17th November 1885, and recorded G.R. (barony and regality) for publication, and as also in the Books of Council and Session for preservation and execution 20th November 1885, the second of which is dated 29th April, and recorded as aforesaid on 1st May 1886, and the third of which is dated 18th, 26th, and 28th May, and recorded as aforesaid on 1st June 1887—the ground was conveyed under the declaration that no buildings of any kind whatever, other than the self-contained lodging or dwelling-house and relative office therein described should be erected on that ground (the declaration being thereby made a real burden upon and affecting the ground), and in the conveyances the Association specially

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assigned to the trustees for Lindsay & Benzie, inter alia, the foresaid dispositions in favour of Blair and Macbrayne, to the extent and effect of conferring on the trustees for Lindsay & Benzie and their assignees the right to insist on the implement and performance of, inter alia, the real burden quoted in the seventh finding; (9) that the said dispositions and right assigned to the trustees for Lindsay & Benzie have been duly transmitted by and from them to the objector Mrs Harrower and others, with the exception of the objectors, the trustees of William Cumming; (10) that the buildings proposed to be erected by the petitioners are not ‘tenements of first-class self-contained dwelling-houses’; and (11) that the objectors Mrs Harrower and others have an interest to maintain and enforce the restriction and real burden in the titles of the petitioners: And with these findings in fact, the Dean finds in law—(1) that the restriction above quoted was validly created a real burden upon and affecting the subjects now belonging to the petitioners, and is not void from ambiguity, uncertainty, or indefiniteness: (2) that as the National Heritable Property Association, Limited, have disposed of all the ground originally held by them in the neighbourhood of the subjects now belonging to the petitioners, and as the Association stand in no feudal relationship to the petitioners, the Association are not now in titulo to maintain or enforce the observance of the said restriction and real burden; (3) that the objectors Mrs Harrower and others (excepting William Cumming's trustees) having now a real right to the lands or parts of the lands which, at the time the real burden upon the petitioner's subjects was constituted, belonged to the Association which imposed that real burden, and having also an express assignation of the right to enforce, and having an interest to enforce the said real burden, are entitled to enforce it; (4) that the objectors the trustees of William Cumming, having no such assignation, are not in titulo to enforce the said real burden; (5) that the tenements proposed to be erected are, or if authorised would be, a contravention of the before-mentioned restriction and real burden: Therefore repels the objections stated for the National Heritable Property Association, Limited, and for the trustees of William Cumming; sustains the objections of the said Mrs Harrower and others (with the exception of the trustees of William Cumming), and refuses the lining craved; finds the objectors the said Association liable to the petitioners in the expenses caused by their opposition; and finds the; petitioners liable in expenses to the objectors Mrs Harrower and others (excepting the trustees of William Cumming); and quoad ultra finds no expenses due to or by either party: Allows accounts of the expenses awarded to be lodged, and remits,” &c.

Note.—“This case raises one or two legal questions of interest, and the importance of it to the parties, especially to the objectors Mrs Harrower and others, is plain. The facts as they appear to the Dean are stated in the foregoing findings. The street called Bute Gardens has hitherto contained only self-contained houses, these being all situated on the east side of the street. The petitioners now propose to erect on the west side of the street what are not self-contained houses, but buildings of flats, each building to be let to several tenants. The proprietors of the self-contained houses object to this as being a contravention of the restriction in the petitioners' title quoted in the findings, and in reply the petitioners attack the restriction on its merits and maintain that at all events it is not enforceable by the objectors. The attack on the restriction is twofold. It is in the first place said that in respect the deed imposing the restriction does not set forth or identify the lands for the benefit of which it was imposed—the creditor area as these may conveniently be called—there is such uncertainty or indefiniteness in the creation of the restriction or real burden as to make it void and of no effect. A well-drawn conveyance—particularly a conveyance which does not bring about any feudal relationship between granter and grantee—would undoubtedly, after imposing the restriction, set forth or indicate the creditor area. But whether the law of real burden makes that a necessity is another matter. The law of Scotland, it is true, does not admit an indefinite burden upon land. But, so far as the Dean has found, that statement has hitherto been used only when the burdened area was in question, and the indefiniteness of the creditor area has not been the subject of judicial decision. Taking the matter on principle, the Dean does not think that the want of an express specification of the creditor area makes a real burden, otherwise well imposed, invalid. A real burden of the kind in question is praedial in its character; it is for the benefit of some lands or the owners thereof, as owners, and not as individuals; and, considering the nature of the grant under which the burden in question was imposed, it must be taken to have been imposed for the benefit of the lands remaining in the person of those who imposed it, or at all events, of so much of these remaining lands as might be injuriously affected by operations or buildings on the ground restricted. That would, the Dean takes it, be the position as regards the dominant tenement under the law of servitude proper, and he thinks the same rule holds in the case of real burden. In both branches the matter of intention is important. If the Dean be right in the views just expressed, there is no doubt the lands now belonging to Mrs Harrower and others were, at the time the real burden was imposed, vested in the Association who imposed it, and being situated directly opposite to the burdened area, there is the element of vicinity and the possibility of injurious affection referred to. The restriction is attacked in the second place on the terms employed. It is contended that the terms are ambiguous; that ‘ tenements of first class self-contained dwelling-houses’ are a contradiction in terms. It was stated that the word tenement

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had acquired a secondary meaning, and now meant a building consisting of several flats and let to several tenants. However that may be, it is plain that the ruling idea in the restriction is the idea of self-contained houses, and anything at variance with that plain intention must give way. But the; Dean may add that, in his opinion, there is no ambiguity in the expression nor any contradiction in its terms. The petitioners further maintain that, even granting that the restriction is valid and not void from uncertainty or ambiguity, the objectors are not entitled to plead it or enforce it. As regards the Association, the petitioners contend that, being no longer in right of any part of the land for the benefit of which the restriction was imposed, the Association are not now in a position to enforce it. The Dean heard no satisfactory answer to that. The Association in disposing of the ground, and in assigning the benefit of the restriction to those who bought it, attempted to retain a joint right of enforcement, and gave an undertaking to enforce the restriction in the petitioners’ title. But that undertaking, whatever other questions it may raise, does not improve the position of the Association in a question with the petitioners. A real burden of the nature of the one here in question is for the benefit of persons qua owners of land and not qua individuals, and unless the Association can show that they come forward as such owners, and not simply as individuals burdened with personal undertakings, they are not, in the Dean's judgment, entitled to enforce the restrictions which they imposed. The petitioners also maintain that the objectors, Mrs Harrower and others, are not entitled to enforce the restrictions. They argue that, as between them and the objectors, there is not that mutuality and community of rights and obligations which entitle these objectors to plead the restriction; that there is no notice on the face of their title, either expressly or by implication, that anyone other than the parties to the deeds containing the restrictive covenant was to be entitled to enforce the covenant; that there is here no jus quccsitum tertio. In support of this contention they refer, among other cases, to M'Ritchie's Trustees, 1881, 8 R. (H. L.) 95, and Bannerman's Trustees, 1902, 39 S.L.R. 445. For the legal propositions involved in the contention these cases suffice, but both cases are distinguishable from the present case. The objectors here do not need to found or rely on a case of mutuality and community of rights and obligations. This is not a case of restrictions being imposed upon a feuar by a superior, and being pleaded by another feuar not a party to the deed imposing the restrictions. In such a case the right of the superior to enforce the restriction rests upon contract, and, unless by an appeal to the doctrine of mutuality or jus quæsitum tertio, nobody but the superior, or those who follow him in the superiority and come to be in right of the contract, can enforce it. But the present question arises as to a real burden imposed for the benefit of the estate retained or reserved by the party imposing it, and the parties seeking to enforce it are now in right of the reserved estate, with an express assignation to the real burden incorporated in the conveyance of the reserved estate. They are not tertii. They are in reality the continuation of the persona at whose instance and for the benefit of whose reserved estate the burden was imposed. These considerations seem to the Dean to distinguish the case from M'Ritchie's Trustees. In the case of Bannerman's Trustees the objectors were in right of ground disponed by the common author before he had imposed the restrictions upon the burdened tenement; indeed, it appeared that Scott's property—the burdened property—was the last portion of the original ground to be alienated by Grierson, the common author, and that so far as Scott had notice or any reason to suppose, the only reserved estate for the benefit of which the restrictions in his title could be said to be imposed was the ground annual constituted by the contract of ground annual under which the ground was conveyed to Scott. In the present case there was clearly adjoining lands retained or reserved, and the lands now belonging to the objectors Mrs Harrower and others were and are parts of the reserved lands. The point was not taken, but the Dean sees it could be argued that restrictions in favour of a reserved estate belonging to one person become much more burdensome when the reserved estate is split up and comes to be held by several persons—that by conveying the reserved estate, otherwise than as a whole, the burden has been increased. But the Dean does not think that this argument is conclusive in any case, and particularly so in a case like the present, where everything pointed to the development of the estate and the splitting of it up into lots. If the Dean is wrong in the view he takes, then the restrictions in the petitioners' titles have ceased to exist, or at any rate there is now no one entitled to enforce them, and the benefit they were intended to afford has been completely lost. The objectors Mrs Harrower and others (excepting Cumming's trustees) are not only in right of the estate which remained in the person of the Association after it imposed the restriction, but they have an express assignation of the right to enforce it. Cumming's trustees have no such assignation. An assignation apart from the conveyance of the reserved estate—in other words, an assignation to one not a disponee of the reserved estate—would not give the assignee a right to enforce the restriction. But it is a fair question whether a disponee of the reserved estate or a part of it requires an express assignation of such a right. It is a stateable argument that the conveyance of the reserved estate, with or without a clause of parts, privileges, and pertinents, will carry all such incidental rights as the right to enforce real burdens imposed for the benefit of that estate. But the restriction here is not a proper servitude. It belongs rather to the class of real burden,

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and the Dean is disposed to say that an assignation is required. The objectors state a plea of no title, but it was not maintained or mentioned at the debate. They did not take any point upon the fact that the petitioners hold on a personal title, and of necessity have to found upon the dispositions to Blair and Macbrayne which they, the petitioners, are here in part repudiating. The petitioners state a plea of no interest in the objectors Mrs Harrower and others, but this plea also was not maintained or mentioned at the debate. It would, in the Dean's opinion, be difficult for the petitioners to maintain it. It appears to him that the interest is obvious. As the case will no doubt be appealed, the petitioners should put in the principal missive, and the parties should agree upon and put in a sheet of the Ordnance Survey, marked to show the properties concerned.”

The petitioners appealed to the Court of Session, and argued—The buildings proposed fulfilled the conditions; they were “tenements of first-class self-contained dwelling-houses.” [This was not seriously argued.] There was no real burden effectually imposed. There were two classes of real burdens—a condition inherent in the grant, and a real burden in the narrower sense-between these a distinction must be drawn—Lord Kinnear in Campbells— Trustees v. Corporation of Glasgow, March 20, 1902, 4 F. 752, 39 S.L.R. 461; and Lord Deas, at p. 803, in Stewart v. Duke of Montrose, February 15, 1860, 22 D. 755. Here there could be no condition inherent, for there was no feudal relation, nor a relation nearly equivalent thereto, as there had been in Coutts v. Tailors of Aberdeen, August 3, 1840, 1 Rob. Ap. 296. The conveyance had been bungled because it proceeded as if the relation of superior and vassal were being constituted. Nor had a real burden in the narrower sense been effectually created; this required more precise and specific words than a condition inherent—Lord Corehouse in Coutts, cit. sup.—but here there was great indefiniteness, since it could not be discovered for what purpose or for the benefit of whom the obligation was made. There was no mention of the lands for whose benefit the restriction was imposed, and it was not to be assumed, as the Dean of Guild had, that it was for the benefit of the remaining lands of the Association; it could not be discovered from the conveyance that the Association had lands remaining. There was here no interest in the persons seeking to enforce the obligation; a disponer who was parting with his lands could have no interest to enforce the restriction; nor did there exist here any mutuality of rights and obligations to give an interest to co-disponees— Gardyne v. The Royal Bank of Scotland, March 8, 1851, 13 D 912, rev. May 13, 1853, 1 Macq. 358; Marshalls Trustee v. Macneill & Company, June 19, 1888, 15 R. 762, Lord Shand, 770, 25 S.L.R. 581; Hislop v. MacRitchie's Trustees, June 23, 1881, 8 R. (H.L.) 95, 19 S.L.R. 571, esp. Lord Watson's opinion. Where lands were conveyed by a contract of ground annual, and a restriction was contracted for, it was personal to the disponer and disponee, it could not be enforced against singular successors, and it could not be transmitted even by special assignation unless mutuality of rights and obligations existed; and here there was no mutuality— Marshall, cit. sup.; Hislop, cit. sup. The exclusion of the right of assigning a restriction to a case where there was mutuality applied to disponees as well as to co-feuars— Bannerman's Trustees v. Howard & Wyndham, March 18, 1902, 39 S.L.R. 445. This was not a servitude—certainly not a servitude of an ordinary kind—Bells Principles, section 979, quoted with approval by Lord Watson in the North British Railway Company v. Park Yard Company, June 20, 1898, 25 R. (H.L.) 47, at pp. 52 and 53, 35 S.L.R. 950. Accordingly, it was not effectual against, nor available to, singular successors. Restrictions on property were to be construed strictly— Fraser v. Downie, June 22, 1877, 4 R. 942; Buchanan and Others v. Marr, June 7, 1883, 10 R. 936, 20 S.L.R. 635, and it was not lightly to be assumed that it was intended to subsist for all time, or involved a tract of future time. The right to enforce such a restriction was not assignable, for if assigned, as here, to several it would become more burdensome. That was not intended to be and could not be, the effect of the obligation— Moore and Others v. Paterson, December 16, 1881, 9 R. 337, Lord Shand, at 350, 19 S.L.R. 236.

Argued for the objectors (respondents)—A real condition had been effectually created in favour of the disponer. This was transmissible, at least to those who held the lands for whose benefit it was imposed. It made no difference that no relation of superior and vassal was constituted; that had not existed in Coutts, cit. sup. This case was the same as Coutts, except that the person seeking to enforce the restriction was not the original disponer but a disponee of his with a special assignation. Such assignee, however, was in the same position as the original disponer. There was no necessity for mutuality here, because they were not tertii, and did not invoke the doctrine of jus qucesitum tertio. They were assignees of creditors. The conveyances of the lands, even without the special assignation therein, operated as conveyances or assignations of such lesser rights as the restriction in question—Lord Watson, at p. 94, in Stevenson v. Steel Company of Scotland, July 24, 1899, 1 F. (H.L.) 91, 36 S.L.R. 946; Lord Watson, at. p. 102—3, of Hislop, cit. sup.; Stewart v. Duke of Montrose, March 27, 1863, 4 Macq. 499. In any case special assignations existed here, and accordingly they stood in the shoes of the original disponer. If it were not a real burden it was effectual as a servitude which had entered the record. It was not necessary that the deed constituting the restriction should specify the dominant tenement; and there was an instance of a servitude in favour of a dominant tenement not in existence but to be created in the North British Railway Company v. Park Yard Company, cit. sup. [ Lord Kyllachy— But a negative servitude cannot give notice by possession.] In the present case notice was given on record. Where there was no reference to the lands for whose benefit a restriction was imposed all the then unfeued lands of the superior had the right to enforce it— Governors of Muirhead College v. Millar, May 29, 1901, 38 S.L.R. 835.

At advising—