Scottish Court of Session Decisions

William Nicholson, proprietor of certain subjects situated at Hayburn Crescent and Minard Road, Partick, bounded on the north by Minard Road, on the east and south by a lane behind Annfield Road, and on the west by Hayburn Crescent, Partick, wishing to erect certain tenements of houses thereon, applied to the Magistrates of the Burgh of Partick for a lining.

The application was opposed by the Managers of the Glasgow Asylum for the Blind, who were proprietors of two tenements forming Nos. 5, 6, 7, and 8 Hayburn Crescent, Partick.

The following narrative of the facts is taken from the note of the Magistrates

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appended to their interlocutor of 26th January, but with fuller quotation of the dispositions — “This is an application by William Nicholson for warrant to erect ten tenements of houses on ground belonging to him, and situated between Hayburn Crescent on the west, Annfield Terrace on the east, Minard Road on the north, and a meuse lane on the south. The ground in question extends to 6556 square yards, and is part of a plot containing 14,212 square yards, and the proposed tenements if sanctioned will consist of houses of two rooms and kitchen, and will be four square storeys in height. The application is practically similar to one presented by Daniel Nicholson, a son of the petitioner, to this Court in May last, which the Court, after having sisted it to enable the petitioner to determine his rights in the Supreme Court, finally dismissed. The only difference between the two is that a billiard saloon for which warrant was craved in the former is omitted in the present application.

“From the titles lodged in process the petitioner appears to be feudally vest in the subjects in question, and no objection was taken at the Bar by the respondents to his right to appear as proprietor in the present case.

The previous application was opposed by the proprietors of houses in Annfield Terrace, Hayburn Crescent, and Annfield Road, which lies to the east of Annfield Terrace. The application now before the Court is objected to only by the Managers of the Glasgow Asylum for the Blind, who are the proprietors of two tenements in Hayburn Crescent.

The subjects in question are part of the lands of Partickhill, which at one time belonged to William Hamilton. Hamilton became bankrupt, and William Anderson was appointed trustee on his sequestrated estates. A portion of these lands of Partickhill, extending to 11 acres 3 roods and 27 poles, was sold in 1867 by Anderson to William Towers Clark and Thomas Binnie, as trustees acting under a certain deed of agreement. The petitioner's property and a portion of Hayburn Crescent form part of these 11 acres.

Towers Clark died in 1870, after a portion of the 11 acres of ground had been feued off. A partition of the remaining ground was thereafter made between Towers Clark's representatives and Binnie. In carrying out this scheme Binnie, as surviving trustee, in 1874 conveyed to himself as an individual a portion of the ground extending to 6 acres 3 roods and 8 poles.

In 1875 Binnie sold a part of the 6 acres to M'Meeken & Reith, accountants, who before being feudally vest sold in turn 14,212 square yards of their ground to James Millar. At the request of and with consent of M'Meeken & Reith, Binnie accordingly conveyed this plot of 14,212 square yards to Millar by a disposition granted on the same date as that conveying to M'Meeken & Reith the plot of ground extending to 13,758 square yards after mentioned.

The disposition in Millar's favour contains the following—‘Declaring also, as it is hereby specially provided and declared, that the tenements to be erected on the plot of ground before disponed shall not exceed in height three square storeys with attics, and the half of a sunk storey above the level of the street, and shall consist of houses of not less size than three rooms and kitchen, but each tenement to be erected on the west side of a protraction northwards of the line of the said Hayburn Crescent Road may have three houses of two rooms and kitchen: And in conveying the ground situated between the ground conveyed by me, the said Thomas Binnie, to trustees for the Partick Annfield Bowling Club, and the said lands sold to the said James M'Meeken and William Reith, and which is also part of the said six acres three roods and eight poles, I oblige myself to take my disponee bound in the event of his not erecting thereon two detached villas or a double villa, to build such tenements of dwelling-houses as he may erect thereon of a handsome elevation, to the satisfaction of John Burnet, architect in Glasgow, not exceeding in height three storeys and attics, and one-half sunk storey, and each dwelling-house to contain not less than four rooms and kitchen.… [ There followed provisions as to the widening of Hayburn Crescent Road and another road] …, and so far as the obligations as to the widening, formation, and maintenance of roads or streets, and contributing of ground therefor, are imposed upon or undertaken by me as proprietor of the ground above disponed by the disposition granted by me of even date herewith in favour of the said James M'Meeken and William Reith, the said James Millar by acceptance hereof shall be bound to implement and free and relieve me of the same, which conditions, provisions, and others before written are hereby created real liens and burdens and servitudes on the lands before disponed, and as such shall be inserted or validly referred to in all transmissions and investitures of the same, or any part thereof, under pain of nullity.…’

Millar's plot, to the extent of 6556 square yards, is now vested in the petitioner Nicholson, and the disposition in his favour which was granted in 1893 bears that the plot of ground so conveyed is disponed always with and under the conditions, provisions, restrictions, &c., inter alia, contained in the disposition by Binnie in favour of Millar.… The subjects lying between the ground of the Partick Bowling Club and that of M'Meeken & Reith, together with those conveyed to Millar and M'Meeken & Reith, form the whole area then belonging to Binnie.

On the face, therefore, of the petitioner's title his ground is restricted to buildings that shall not exceed in height three square storeys with attics and the half of a sunk storey above the level of the street, and that shall consist of houses of not less than three rooms and kitchen.

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Hayburn Crescent, in which the respondents property is situated, forms part of a plot of 13,758 square yards which, as already stated, is part of the six acres of ground before mentioned, and, as has been pointed out, was conveyed by Binnie to M'Meeken & Reith in 1875 by a disposition granted on the same date as that in favour of Millar.

The restriction with regard to buildings on the ground is similar in its terms to that imposed on the 14,212 square yards, that is to say, the buildings to be erected shall not exceed in height three square storeys with attics and half of a sunk storey above the level of the street, and shall consist of houses of not less than three rooms and kitchen. As in the case of the plot of 14,212 square yards, there is in the disposition of this plot of 13,758 square yards an exception which is not quite similar in its terms to the exception in the case of the plot containing 14,212 square yards. In the disposition of that plot, as has been pointed out, the wording of the exception is — ‘But each tenement to be erected on the west side of a protraction northwards of the line of said Hayburn Crescent Road may have three houses of two rooms and kitchen;’ while in the case of the 13,758 square yards the clause runs thus — ‘But each tenement to be erected on the west side of Hayburn Crescent Road may have three houses of two rooms and kitchen.’ So at least it appears in the copy disposition by Binnie to M'Meeken & Reith which has been lodged in process. The words ‘a protraction northwards of the line of the said’ appear to have been omitted in the deed. The omission may have been due to a clerical error, but in any case the two exceptions are practically similar.” [The disposition to M'Meeken & Reith also contained provisions as to the widening of Hayburn Crescent Road, and these provisions were followed by a similar clause to that quoted above in the disposition to Millar declaring the conditions, provisions, and “others before written” real burdens, and to be inserted in all transmissions.]

The respondents pleaded, inter alia — “(1) It having been already decided in this Court that the owner of the said subjects is not entitled to lining for the proposed buildings till he has established his right in a competent Court to erect the proposed buildings, the petition should be dismissed with expenses. (2) The buildings proposed to be erected by the petitioner being in contravention of the building restrictions in his own title and in the respondents' title, which were inserted in both titles as part of a common building scheme, and the respondents having an interest to enforce the same, the petition should be dismissed with expenses. (3) The question between the petitioner and the respondents being one of heritable right, the petition should be sisted until the petitioner has had the said question decided by a Court competent to decide the same.”

On 26th January 1910 the Magistrates pronounced this interlocutor—“Having considered the process, including the petition, the answers for the objectors, and the petitioner's replies to these, and having heard the agents of parties on the case, the Magistrates, for the reasons stated, and under reference to the subjoined note, sist the process hoc statu for the period of one month from this date, in order that the petitioner, if so advised, may raise an action of declarator or other action to establish his right in a competent Court.”

Note.—[ After the narrative above quoted]—“The objections put forward to the application by the respondents (on the ground that they and the petitioner derive their title from a common author) are—(1) That the class of houses proposed to be erected is of a smaller size than is warranted by the petitioner's title, having two rooms and kitchen instead of three rooms and kitchen, to which, by the title, the ground is restricted; and (2) That the proposed buildings are too high, being four square storeys instead of three square storeys and attics and half a sunk storey, to which the buildings are limited by the petitioner's title.

They further plead that the points raised in the record involve questions of heritable title which cannot be dealt with in a Dean of Guild Court.

On the face of the title there is no reference to a building plan, but looking to the circumstances under which the two conveyances were granted to Millar and M'Meeken & Reith respectively, and to the fact that the dispositions are of even date, and having regard also to the obligation on the disponer of Millar's property to impose similar restrictions on the remaining ground not conveyed to him and M'Meeken & Reith, it is evident that the parties had in view the imposition of these restrictions with the object of preserving the amenity of the locality. Such a scheme at least is averred by the respondents in their pleadings, although it is denied by the petitioner.

It was argued for the petitioner that the respondents have no jus qucesitum which would entitle them to oppose the present application; that there is no relation of superior and vassal between the parties; that the contract was one purely personal to Binnie and his disponees; and that there was no special assignation to M'Meeken & Reith of Binnie's right to enforce the restriction in the title.

But in the leading case of Hislop v. M'Ritchie's Trustees, 1881, 8 R. 95, Lord Watson in his opinion has laid it down that where there is a general reference to a building plan or scheme, a jus qucesitum will be conferred upon co-feuars; and in the case of Braid Hills Hotel Co. v. Manuel ( 46 S.L.R. 113) it has been decided that such a right may be conferred upon co-disponees as well as upon co-feuars. It was also laid down in that case that no assignation of such a restriction in special terms is needed to transmit the right.

In view of the circumstances before narrated it is obvious that the case thus presented involves questions of heritable title which the Magistrates consider could

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not be decided by them without a full inquiry into the facts raised in the record.

The building restrictions appear, as has been pointed out, both in the petitioner's and in the respondents' titles. But the petitioner not only pleads that there is no mutuality of interest among the proprietors, but he further pleads acquiescence on the part of the objectors to an infringement of the restrictions made on a portion of the ground extending to 6 acres which is already built on. This acquiescence is disputed by the respondents, and accordingly the matter in dispute can only be determined by a proof. There are also other points raised in the pleadings regarding which a proof would be necessary.

Now with reference to the question of heritable title it appears to the Magistrates that the case before them is not one which only involves the interpretation by this Court of the clause containing the building restrictions in the petitioner's title. There is here a distinct competition of title which in their view can only be cleared by a declarator in the Supreme Court (see the opinion of Lord President Inglis in Pitman v. Burnet's Trustees, 1881, 8 R. 914, 18 S.L.R. 659).

As the Lord Justice-Clerk said in the case of Walker & Dick v. Park, 1888, 15 R. 485, 25 S.L.R. 346, in which the Dean of Guild Court had allowed a proof to clear up points in the title — ‘The Dean of Guild had no power to go behind the title or to judge of an alleged personal exception against the feuars. … It is settled—and there can be no question about it—that while from the very nature of the jurisdiction of the Dean of Guild many questions may be raised incidental to the immediate objects of proceedings before that Court, a competition between heritable rights or burdens on heritable rights or variations from the feudal title on which the rights stand until they are set aside are matters entirely beyond the competency of the Dean of Guild Court.’

This view is emphasised by the recent case of Macandrew v. Dods, 1908 S.C. 51, 45 S.L.R. 49. In that case the Lord President, in the course of his opinion, said—‘I am exceedingly far from laying down the proposition that it is not proper of the Dean of Guild to take up questions of legal restriction where there is no proper competition of heritable right, and where the questions are merely whether the restriction applies or not, however hard and difficult these questions may be.… If this case had been one where the whole question turned upon the construction of a legal document, and upon construction alone, then I think your Lordships would have been probably inclined either to send it back to the Dean of Guild, or, as has been urged by counsel, to have proceeded at once yourselves to a determination of the case. When the particular restrictions that we have to deal with here are brought before our notice it is abundantly made clear to me that there is one of them at least that cannot be finally determined without settling a disputed question of fact, and accordingly there has got to be an inquiry.… I do not think it is expedient in the circumstances of this case to disturb the discretion of the Dean of Guild.’ (He had sisted a case to enable the applicant to establish his right in the Supreme Court.) ‘I think, therefore, that, as there are difficult questions here of construction, and also one question resting upon the determination of fact, they had better be determined by an action at law—all the more that the question of fact seems to me to be a question of fact which really will turn upon questions of evidence rather than upon questions of a practical character such as the Dean of Guild is specially entitled to determine.’

Having regard to these authorities, the Magistrates are of opinion that it is beyond the competency of this Court to decide the questions at issue in so far as these are questions of heritable title. And with regard to the plea of acquiescence set up by the petitioner, looking to the fact that the petitioner's averments on this point are disputed, the Magistrates are of opinion that the present application is not a suitable way of disposing of the questions raised, even if they could competently deal with them. The Magistrates do not regard this as a case in which, even if they possessed it, they should exercise a discretionary power of dealing with the application. They have accordingly sisted the case, as was done in the former application, in order to give the petitioner, if so advised, an opportunity of determining his right by declarator or other action in a competent Court.”

Thereafter the petitioner lodged this minute—“The petitioner having been advised that the respondents the Glasgow Blind Asylum have no right or title to object to the petition for lining, and also that the Dean of Guild Court are competent to dispose of the questions raised by the answers of the respondents the said Glasgow Blind Asylum, and that the Court should have accordingly disposed of those questions, begs respectfully to state that he does not propose to raise an action of declarator or other action in any other Court in terms of the interlocutor of the Dean of Guild Court, dated 26th January 1910, sisting the process hoc statu for the period of one month from the date thereof, in order that he, if so advised, might raise an action of declarator or other action, and he therefore craves the Court to finally dispose of the petition as to the Court shall seem just.”

On 1st March 1910 the Magistrates pronounced this interlocutor—“… Recal the sist pronounced on 26th January 1910, and in respect the petitioner has, by said minute lodged by him, intimated that he does not propose to raise an action of declarator or other action in any other Court, dismiss the application, and find the respondents entitled to expenses.”

The petitioner appealed, and argued—(1) The Magistrates ought to have decided the question raised. There was here no competition of title. (2) They admitted that

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the proposed buildings infringed the restrictions. But there was nothing to show that the respondents had a jus quæsitum. The requisites referred to by Lord Selborne in Hislop v. MacRitchie's Trustees, June 23, 1881, 8 R. (H.L.) 95, at p. 97–98, 19 S.L.R. 571 at 572, as necessary to establish mutuality and community of rights and obligations were not fulfilled, for there was no express stipulation to that effect in their dispositions, nor reference to a common plan, nor mutual agreement among the disponees. There was nothing in favour of mutuality except the same restrictions in both dispositions. But the mere fact of the conditions being the same was not sufficient to give to each disponee a title to enforce — Lord Watson in Hislop v. MacRitchie's Trustees, cit. sup. Nor could the respondents claim to enforce the restriction on the ground referred to in J. A. Mactaggart & Co. v. Harrower, July 20, 1906, 8 F. 1101, by the Dean of Guild at 1106 (whose opinion was approved of by the Court), 43 S.L.R. 815, namely, that they were in right of the disponer (the common author) and were not really tertii, for the dispositions from the common author were of even date, and such a contention was only open to disponees of reserved lands — Bannerman's Trustees v. Howard & Wyndham, March 18, 1902, 39 S.L.R. 445.

Argued for the respondents — (1) They admitted that there was no question of competition of heritable title. (2) The two dispositions from Binnie were counterparts of an agreement for the mutual benefit of the property, and neither disponee nor those deriving right from them could refuse to comply with the conditions. The respondents' title showed that Binnie was present at a joint meeting, and that there was a bargain or arrangement as to the terms of both dispositions, which were of even date. In these circumstances and in view of the fact that the restrictions were declared real burdens and had to be inserted in future dispositions they submitted that they had shown a title and interest to object. They referred to Maguire v. Burges, 1909 S.C. 1283, 46 S.L.R. 925.

At advising—