Scottish Court of Session Decisions

John Kirkwood Deans, boot and shoe factor, Glasgow, petitioner, presented a petition in the Dean of Guild Court of Glasgow for authority to rebuild a common stair, to which, petition objections were lodged by. Philip” Woolfson, warehouseman, Glasgow, objector.

The following narrative is taken from the note of the Dean of Guild infra:—“In this case the petitioner avers that he is proprietor of certain subjects at 157 Trongate, Glasgow, and that the respondent Mr Woolfson is proprietor of subjects lying to the west thereof; that the buildings of both petitioner and objector were sometime ago injured or destroyed by fire; that in particular there was injured or destroyed by fire a common stair or staircase on the portion of the subjects coloured dark red on the plan produced; and that the petitioner proposes to rebuild the said stair or staircase, and asks authority to do so. The objector Mr Woolfson avers that the common stair and entry were destroyed by fire about October 1919; that the ground on which the destroyed staircase stood (and on which the staircase now proposed by the petitioner is to be put up) belongs to the objector to the extent of one-half pro indiviso; that there is no obligation in the titles by which the petitioner or objector can compel each other to build; and that no lining can be granted affecting the said common ground unless on the application of all the owners thereof, and that the objector refuses to concur in such an application or to give his consent.”

The objector and petitioner averred, inter alia—“(Objn. 5) Believed and averred that from a perusal of the titles a common stair and entry were erected between 1812 and 1821 and were used by the predecessors of both the petitioner and the objector as such. Further, averred tb at the said stair and entry were destroyed by fire about October 1919, and that while the ground belongs jointly to the objector to the extent of one-half pro indiviso, there is no obligation in the titles by which the petitioner or objector can

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compel the other to build thereon, and that no lining can be granted in respect of said common ground unless on the application of the owners thereof, which the objector meantime refuses. The stair proposed is of no use or value to the objector, and the cost thereof under present conditions would be excessive and beyond any actual value it could have to the parties. (4ms. 5) The building of the stair between 1812 and 1821 and the destruction of it by fire in 1919 are admitted. Quoad ultra denied. In virtue of his title-deeds and at common law the petitioner is entitled to re-erect the said stair, and he cannot be deprived of the use of it by the capricious objections of the objector to concur in the reconstruction. (Objn. 6) It is further averred that the lining as presented shows that the erection now proposed is intended as a stair for the exclusive use of the petitioner's property, and is not, therefore, conforming with the stipulation in the title that the same shall be common to the property belonging to the petitioner and objector respectively and serve for the objector's property. It is also believed that the petitioner, if lining is granted, intends to make the objector pay one-half of the cost of erecting said stair ( Ans. 6) Denied, and explained that the petitioner's plans are made to conform with the reinstatement of the staircase which was destroyed, and he has without prejudice offered to meet the objector's wishes as far as possible to place the landings where they would accommodate the objector, but Mr Woolfson declines to enter into any working agreement on the subject.”

The objector pleaded, inter alia—“1 The lining being in respect of common property, the other proprietor of which is not consenting thereto, the same should be dismissed. 2. There being no obligation in the titles on either party to rebuild on this common ground, the petitioner is not entitled to the warrant craved at his own instance or to compel the objector to consent thereto.”

The petitioner pleaded, inter alia—“1. The objections are irrelevant and should be repelled. 2. The petitioner, with or without the objector's consent, is entitled to reconstruct the staircase common to both.”

On 9th June 1921 the Dean of Guild pronounced this interlocutor—“The Dean of Guild sists the case to allow the objector, Philip Woolfson, if so advised, to take proceedings in any competent Court to have the rights of the parties in the premises determined, and appoints the case to be put to the roll of the first Court to be held after one month from this date.”

Note.—[ After the narrative supra, and after examining the titles of the parties and dealing with the question whether the case involved a competition of heritable right]—“On the assumption, however, that the stair passage and solum inquestion are held by the petitioner and the objector in common property, another question is raised which the Dean of Guild thinks is not appropriate for decision in a process for lining in the Dean of Guild Court—that is, what are the rights and obligations of proprietors in common where buildings held in common have been destroyed and there is no regulation in the titles (which is the position here) as to restoration. It is agreed by both parties that the staircase which served both parties was destroyed by fire. The petitioner proposes to rebuild the common stair so destroyed. He avers, and the objector does not deny (Objection and Answer 6), that he has without prejudice offered to meet the objector's wishes as far as possible to place the landings where they would accommodate Mr Woolfson, but the latter declines to enter into any working agreement on the subject. The petitioner maintains that in virtue of his title-deeds he is entitled to re-erect the staircase with or without the objector's consent, or, alternatively, that the objector is not entitled to withhold his consent to the reconstruction, the petitioner being willing to alter or modify his plans to suit the objector's intended buildings so that persons using the same may have the use of the common stair to be erected. On the law of the matter the objector founds upon the elementary rule that in the case of common property there can be no interference except with the consent of all the proprietors in common. The petitioner, on the other hand, while admitting that elementary principle, founds upon the addendum to the rule stated by Bell in his Principles 1075 (10th ed.), that necessary operations in rebuilding, repairing, &c., are not to be stopped by the opposition of any of the joint owners. The statement in the first edition of Bell (1829), article 273, is that ‘necessary operations in rebuilding, repairing, &c., are not thus to be stopt.’ In neither the first nor the last edition is there any decision quoted for the statement. But the statement is repeated with approval by Professor Rankine in his work on Land Ownership (see 4th ed., pp. 590 and 591). The Dean of Guild thinks that what he has stated is sufficient to show that the attitude of the objector here raises questions of importance to proprietors in common, and that these are not questions which should be entertained in a Dean of Guild Court process. The Dean of Guild thinks that it is fair to Mr Woolfson that he should have an opportunity of vindicating (in an action at law the rights which he claims for a proprietor in common who will not agree either to the restoration of the status quo or indeed to any operation, and the Dean has accordingly sisted the case for that purpose. Perhaps the sist may give time for a reconsideration by the objector of the whole position. It is right to add that it was stated at the hearing that for the purposes of a warehouse the petitioner's building requires an outside stair. Some of his flats could not be sub-let if there were no access such as the common stair would provide, and the Master of Works indicated that he would object to a building being occupied as a warehouse where the only access is internal. For the information of the Court of Appeal or any tribunal called upon to deal with this matter the Dean of Guild thinks it right to add that he is advised by his practical lyners, and is himself of

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opinion, that there is no foundation for the objection of Mr Woolfson that the proposal of the petitioner as shown on the amended plans involves an encroachment on the objector's exclusive property, or the use of the wall which divides the petitioner's ground, which wall Mr Woolfson claims as his own exclusive property. Further, the Dean of Guild is advised, and is himself of opinion, that the proposed operations of the petitioner (while not restoring, brick for brick, the former staircase, and only providing for the requirements of the petitioner) have been so thought out and planned that on any indication by Mr Woolfson of a more neighbourly attitude his interests could be amply met at little cost.”

On 14th July 1921 the Dean of Guild, in respect that the objector had not taken proceedings to have the rights of the parties determined as indicated in the interlocutor of 9th June 1921, recalled the sist and granted the lining craved.

The objector appealed, and argued—(1) The petitioner was not entitled to rebuild the stair. There was nothing to distinguish this case from the ordinary case of common property. Where common property was completely destroyed one of the owners could not compel his co-owner to take part in rebuilding it, or to allow it to be rebuilt. Melior est conditio prohibentis. The basis of the rule was that the status quo should be maintained. The law of tenements and mutual gables was special and did not apply. An owner of common property had his remedy in an action of division and sale. In the present case the stair had never been dedicated as an access to the petitioner's property at all. It was not the only access to the buildings. Bell's Principles (10th ed.) sec. 1075, and Rankine's Lana Ownership (4th ed.) p. 590, were referred to. (2) The Dean of Guild ought not to have sisted the case. Even if he had been right in sisting the case, it was for the petitioner to have brought the declarator as to the rights of a co-owner in the common subject, because (1) the petitioner was the pursuer in the case; (2) the petitioner was founding upon an exception to the general law; and (3) if the objector had brought the declarator it would have been a negative declarator.

Argued for the petitioner—The case fell within the exception to the general rule set forth in Bell's Principles (10th ed.) section 1075, because the petitioner was not going to alter the stair but to rebuild it. Equitable considerations should be given effect to in applying the law— Miller v. Crichton, (1893) 1 S.L.T. 262; Brock v. Hamilton, (1852) 19 D. 701, per Lord Rutherfurd (Ordinary) at 703. Rankine's Land-Ownership (4th ed.) p. 677, was also referred to.

At advising—