Scottish Court of Session Decisions

Hugh Tennant, Holland House, West Kilbride, and others, trustees acting under the trust-disposition and settlement of the late James Brown Montgomerie-Fleming, of Kelvinside, Glasgow, pursuers, brought an action against Alexander Kennedy, cabinetmaker and upholsterer, Byres Road, Hillhead, Glasgow, defender, in which they sought to have it found and declared that the defender as proprietor of the dominium utile of No. 1 Grosvenor Terrace, Kelvinside, Glasgow, being feu 38 of the estate of Kelvinside under a feu-contract between Matthew Montgomerie and John Park Fleming, writers, Glasgow, on the first part, whose successors as proprietors of the dominium directum the pursuers were, and Thomas Philip, builder, in Glasgow, on the second part, “is not entitled to convert the basement floor of the self-contained lodging, forming No. 1 Grosvenor Terrace aforesaid, erected on said feu No. 38, into premises for or in connection with a cabinetmaking and upholstery business, or to a purpose other than occupation as a part of the said self-contained lodging: And further, it ought and should be found and declared, by decree foresaid, that the said conversion, if so

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carried out, is and will be in breach and in contravention of the provisions of the said feu-contract: And upon it being so found and declared, the defender ought and should be interdicted, prohibited, and discharged, by decree foresaid, from making the said conversion, and from occupying, by himself or others, the said basement floor of said lodging for any purpose other than in connection with the occupation of the building as a self-contained lodging.”

The material clauses of the feu-contract were as follows—“And also declaring that the said second party and his foresaids, and the tenants and possessors of the said three steadings of ground, or of any part thereof, or of the houses or buildings erected or to be erected thereon, or any of them, shall not have power to carry on, erect, or set down, and they are hereby expressly prohibited, interdicted, and discharged in all time coming from carrying on, erecting, or setting down upon or within the said three steadings of ground, or any part thereof, or the buildings erected or to be erected thereon, or any of them, any trade, business, or process of brewing, distilling, tanning, calico-printing, singeing muslin, making or preparing of candle, soap, starch, black ashes, tallow, oil, lampblack, glue, catcut, tripe, caoutchouc or Indian rubber, guttapercha, cudbear, vitriol, prussian blue, blood, alum, soda, tartaric acid or bleaching or chemical acid or powder salt, or alkali of any kinds, boiling blubber, burning lime, manufacturing or grinding bones, slaughtering of animals, smelting or calcining of any metal or metallic ore, bones, or other substances, or any steam engine, air engine, starching work, glasswork, sugarwork, saltwork, deftwork, potterywork, ironwork, foundry, smithy, forge, furnace, machine work, cottonmill, flaxmill, silk-mill, weaving shop or power loom factory, and from letting out or using any part of the said ground for depositing dung or rubbish thereon, excepting what dung may be made or used as manure on the said ground itself, and in general from exercising or carrying on any of the said trades, businesses, processes, occupations, or manufactures, or any other trade, business, process, occupation, or manufacture; and from erecting any building on the said three steadings of ground, or either of them, that shall be hurtful, nauseous, or noxious, or occasion disturbance to the houses or inhabitants upon any part of the said lands of Horselethill belonging to the said first party in property and superiority, in favour of whom and their heirs, successors, feuars, and disponees. past and future, in the said lands, and each of them, the foregoing declaration and prohibition shall operate as a real lien and servitude upon the said three steadings of ground hereby disponed and the buildings erected and to be erected thereon, and the same shall be and is hereby constituted a real lien and servitude upon the other parts of the said lands of Horselethill still belonging in property to the said first party, in favour of the said second party and his successors, in the said three steadings of ground hereby disponed; and the said first party bind and oblige themselves and their foresaids to insert a similar prohibition against nuisances in all dispositions and feu rights to be hereafter granted by them of the other parts of the said lands of Horselethill belonging to them: And declaring that the said second party and his foresaids and the tenants and possessors of the said three steadings of ground and buildings thereon, or any part thereof, shall not have power, and he and they are hereby prohibited and discharged from erecting thereon any inn, hotel, or public stables, and from carrying on thereon the business of an inn or hotel-keeper or stabler, or of selling porter, ale, beer, wines, or spirituous liquors either by wholesale or retail without the express consent in writing of the said first party or their foresaids: … And declaring, as it is hereby expressly provided and declared, that the said Thomas Philip and his foresaids shall be bound and obliged to maintain and uphold in good repair in all time coming on the said three steadings of ground the three lodgings now erected thereon which shall be occupied as self-contained lodgings, and to rebuild the same when necessary of the same height, elevation, and style of architecture, and upon the same foundations or sites with those now erected, to form a component part of the range or compartment of Grosvenor Terrace, … all which reservations, burdens, servitudes, conditions, restrictions, prohibitions, provisions, declarations, obligations, prestations, irritant clauses, and others before written shall be real liens, burdens, and servitudes affecting the said pieces of ground and buildings thereon, and as such are hereby appointed to be in grossed in the instrument of sasine to follow hereon, and in all the future charters, precepts of clare constat, dispositions, conveyances, instruments of sasine, and investitures of the said three steadings of ground, or of the buildings thereon, or of any part thereof, otherwise the same shall, in the option of the said first party or their foresaids, be void and null.…”

The pursuers pleaded—“(1) Under the feu-contract founded on, the defender is bound to maintain the self-contained lodging forming No. 1 Grosvenor Terrace as a self-contained lodging, and to rebuild it when necessary of the same height, elevation, and style of architecture and upon the same foundations or sites, and he is therefore not entitled to make on the basement floor of said self-contained lodging the structural alterations and additions complained of, for the purpose of converting said floor to a use other than part of a self-contained lodging. (2) The defender having intimated his intention to convert the said basement floor other than such as is contemplated and provided for by the said feu-contract, the pursuers are entitled to declarator, interdict, removal, and restoration, with expenses as craved.”

The defender pleaded—“(1) The pursuer's

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averments are irrelevant and insufficient to support the conclusions of the summons. (2) The alterations proposed by the defender not being struck at by the feu-contract, the defender is entitled to absolvitor. (3) The pursuer having no interest to object to the operations proposed by the defender, the defender is entitled to absolvitor.”

The facts of the case appear from the opinion of the Lord Ordinary ( Skerrington), who on 9th February 1912 dismissed the action.

Opinion.—“This is an action for the purpose of enforcing an alleged obligation in a feu-contract relative to the maintenance and use of the buildings on the feu. The pursuers are the trustees of the late Mr Montgomerie-Fleming of Kelvinside, and as such they are the superiors of the defender, who purchased in 1909 the house No. 1 Grosvenor Terrace, Glasgow. This terrace extends from east to west along the south side of the Great Western Road. The house No. 1 is the eastmost house in the terrace, and it forms the corner-house at the junction of the Great Western Road and Byres Road, which latter runs southward to the Dumbarton Road. The house No. 1 is also the eastmost point of the Kelvinside estate, a feuing property which extends for a long distance westward along the Great Western Road. The three ‘steadings of ground’ on which the houses No. 1, 2, and 3 Grosvenor Terrace had been already built ‘with the lodging and other buildings erected thereon' were feued to a builder by the owners of the estate of Kelvinside conform to feu-contract dated 27th November 1856. The present action relates only to the house No. 1. The defender is in course of converting the basement floor of this house (both in Grosvenor Terrace and Byres Road) into a cabinetmakers’ and upholsterers' shop with a new and separate entrance from Byres Road. The defender's right to construct this entrance was challenged on record, but this point was given up by the pursuers' counsel. No interference is contemplated with the external wall of the basement fronting the sunk area in Grosvenor Terrace, except that a lavatory is to be constructed in the sunk area under the front door-steps. This involves opening an access to the lavatory through the front wall of the basement, but the pursuers' counsel did not maintain that the defender was not entitled to do this. With these two exceptions, and also with the exception of certain buildings on the background and the opening of new windows facing Byres Road (none of which operations were challenged as illegal) the proposed operations are entirely within the house, and consist of the removal of the internal partitions on the basement floor and the substitution of metal beams and pillars for the support of the upper floors. The only question between the parties is whether the defender is entitled to separate the basement floor from the rest of the house and to use that floor as a shop. That question cannot be answered without reading the whole feu-contract, but the clause principally founded on by the pursuers' counsel is as follows—‘Declaring as it is hereby expressly provided and declared that the said Thomas Philip and his foresaids shall be bound and obliged to maintain and uphold in good repair in all time coming on the said three steadings of ground the three lodgings now erected thereon, which shall be occupied as self-contained lodgings, and to rebuild the same when necessary of the same height, elevation, and style of architecture, and upon the same foundations or sites with those now erected, to form a component part of the range or compartment of Grosvenor Terrace.’

“The pursuers' counsel interpreted this clause, and in particular the parenthetical expression ‘which shall be occupied as self-contained lodgings,’ as imposing upon the feuar and his successors a restriction as to the manner in which he and they might lawfully use the three several lodgings. Any use of the subjects except (1) as a dwelling-house, and (2) as a self-contained dwelling-house (whatever that may mean), was according to this argument expressly forbidden. I am of opinion that the clause quoted has nothing to do with the use of the subjects, but deals merely with the maintenance of the ‘lodgings’ or dwelling-houses erected thereon prior to the granting of the feu. The elaborate nuisance clause, which I have not thought it necessary to quote, implies that the feuar's common law right to carry on any unobjectionable trade in the premises is not taken away by the feu-contract, and I cannot hold that the parenthetical expression quoted has any such effect. Nor can I hold that the use of the word ‘self-contained’ (which is a word descriptive of the structure of a building) can be twisted into meaning that the feuar shall not be entitled to let the subjects to more than one tenant at a time—a prohibition of a very unusual kind which if lawful would require to be very clearly expressed. I construe the parenthetical words as qualifying and interpreting the obligation of maintenance. In other words, each of the three houses must be maintained in such a state that it could be occupied as a dwelling-house by a single family. This obligation would, in my opinion, render it unlawful for the feuar to make an external structural alteration, converting part of the dwelling-house into a shop with doors and windows of the kind appropriate for a shop and not for a dwelling-house. But it would not, in my opinion, prevent the feuar from using his dwelling-house or some part of it as a shop, or from making purely internal alterations with that object. If it had not been for the authorities I should have thought that the use of the word ‘self-contained’ would have made it incumbent on the feuar to resort to the device of maintaining an inside stair of communication between the basement and the upper storeys (which stair could be permanently closed by a locked door), but the decisions seem to be to the contrary effect. I accordingly dismiss the action. In the view which I have taken of the case

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it is not necessary to pronounce any decision on the defender's pleas of want of interest and acquiescence, but as these pleas were carefully argued I may say that in my opinion the defender has not stated a relevant case in support of either of them.

The following decisions were referred to as regards the construction of the feu-contract— Moir's Trustees v. M'Ewan, 1880, 7 R. 1141; Buchanan v. Marr, 1883, 10 R. 936; Millar v. Carmichael, 1888, 15 R. 991; Assets Company v. Ogilvie, 1897, 24 R. 400; and Forrest v. Watson's Hospital, 1905, 8 F. 341.”

The pursuers reclaimed, and argued—The clause importing a restriction of the subjects to self-contained lodgings put a restriction (1) on the structure, and (2) on the occupation. ‘Self-contained’ meant one dwelling-house, and not one dwelling-house and shop. The Lord Ordinary was wrong in holding that this clause only imposed a restriction on the structure and not on the occupation, and in holding that the general nuisance clause contained the only restrictions. No doubt this clause was parenthetical, but it was parenthetical because it imposed special restrictions on these three lodgings, while the general nuisance clause imposed restrictions equally on the whole estate of Horselethill— Ewing v. Hastie, January 12, 1878, 5 R. 439, 15 S.L.R. 263. The material clauses of the deed in that case were the same as in the present, the only difference being the word “erect” instead of “maintain.” It contained a general nuisance clause, and considerably later in the deed a parenthetical clause similar to the present feu-contract. Occupation as a shop was not occupation as a lodging, and self-contained meant a single dwelling-house, adapted for the residence of a single family, or at least not convertible into two separate occupations. The cases referred to by the Lord Ordinary dealt mostly with structure and not with occupation. In Fraser v. Downie, June 22, 1877, 4 R. 942, Lord Shand (p. 945) distinguished between use and structure. In Buchanan v. Marr, June 7, 1883, 10 R. 936, 20 S.L.R. 635, the restriction was only considered with reference to the structure, and Miller v. Carmichael, July 18, 1888, 15 R. 991, 25 S.L.R. 712, simply followed it, while Moir's Trustees v. M'Ewan, July 15, 1880, 7 R. 1141, 17 S.L.R. 765, did not contain the word “self-contained.” In several English cases pursuers' contention had been upheld— Ilford Park Estates, Limited v. Jacobs, [1903] 2 Ch 522; Rogers v. Hosegood, [1900] 2 Ch 388. Reference was also made to Grant v. Langston, [1900] AC 383, 2 F. (H.L.) 49, 37 S. L.R. 691.

Argued for the defender and respondent—The burdens in the present deed must be strictly construed. The restraints imposed could only be effective under certain conditions. There must be a continuing interest, and the restrictions must not be contrary to public policy or such as would render the ground useless— Tailors of Aberdeen v. Coutts, December 20, 1834, 13 S. 226, 1 Rob. App. 296. The residential value of the property in the present case had gone down, and the alterations did not come within the terms of the general nuisance clause. A restriction on property must be clearly expressed to be enforceable— Russell v. Cowpar, February 24, 1882, 9 R. 660, 19 S.L.R. 443; Middleton v. Leslie, May 23, 1894, 21 R. 781, 31 S.L.R. 658. The latter case showed the distinction between the use to which a house could be put and an alteration of the structural appearance, and showed also that restriction would be construed contra proferentem— Fraser v. Downie ( cit. sup.) ( per Lord Shand); Inglis v. Boswall, May 1, 1849, 6 Bell's App. 427 ( per Lord Cottenham at p. 439); Moir's Trustees v. M'Ewan ( cit. sup.); Buchanan v Marr ( cit. sup.); Assets Company v. Ogilvie, December 8, 1896, 24 R. 400, 34 S.L.R. 195. The only object of the restriction in the present feu-contract was to preserve the external amenity of the subject, and thereby protect the feu-duty. But the defender's proposed alterations would not injure either. The general nuisance clause was expressly there to cover objectionable businesses, and there was no reason for it, if pursuer's contention were sound. The superior further had no interest to object— Menzies v. Caledonian Canal Commissioners, June 7, 1900, 2 F. 953, 37 S.L.R. 742; Earl of Zetland v. Hislop, June 12, 1882, 9 R. (H.L.) 40, 19 S.L.R. 680. There had, further, been a change of circumstances since the date of the feu-contract.

At advising—