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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray v Johnston [1834] CA 13_119 (4 December 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0119.html Cite as: [1834] CA 13_119 |
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Page: 119↓
Subject_Property—Acquiescence—Burgh.—
Held by the Lord Ordinary, and acquiesced in, that the feuar of a building-stance in a street was not entitled to excavate, for the purpose of making a sunk area, in respect that the operation would be attended with danger to the adjoining tenement, and that, in the special circumstances, he was barred from making such a use of his property.
Miss Catherine Stewart Murray of Cringletie was proprietor of a house in West Maitland Street, Edinburgh, to which there was no sunk story. George Johnston, tacksman of Redhall Quarry, acquired the adjoining building-stance, in reference to a plan which bound him, in building, to excavate the ground for a sunk story to his house. He gave notice to Miss Murray of his intention to execute this operation, and exhibited a plan and specification, according to which it was to be performed. Miss Murray presented a petition to the Sheriff, to interdict Johnston from excavating the ground adjoining to her gable, as it could not be done without serious danger to her house. After some procedure, in the course of which Morrison's trustees, who were Johnston's authors, were sisted as parties, the Sheriff “refused the petition, with this explanation, that the defender, George Johnston, is entitled to excavate to the verge of his property, although his doing so should be attended with hazard to the pursuer's property, provided he do so in the most careful and prudent manner, in reference to the interest of the pursuer, of which circumstances admit.” *
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* Note.—“It appears, on the one hand, that the defender's feu is his property, a cœlo usque ad centrum, and that he may make all lawful and ordinary uses of the whole extent of it, provided he do not so in æmulationem vicini, which is not alleged; and the excavating of a sunk story is a lawful and very ordinary use of building ground, particularly in or near large towns. And it appears, that the defender cannot be deprived of this right without his consent, and that the pursuer's remedy is to induce him to give his consent to refrain from making this use of a certain portion of his feu in the lower story, by the offer of a suitable valuable consideration. But, on the other hand, although the defender has this right, it appears that he is bound to use it in the manner which shall be ascertained to be the least prejudicial and hazardous to the pursuer's tenement.
“It does not appear that the petition, in particular the prayer of it, is limited to the precise mode of operation contemplated by the defender, but it appears to be directed mainly against the extent of the excavation, and for having it found, that the adjoining earth within the defender's feu cannot be removed on any conditions, if its removal would be attended with hazard to the pursuer's tenement.
“If the view now taken of the law of the case be right, a remit to persons of skill seems the fittest mode of ascertaining what is the most safe and prudent mode of operation, much fitter than a proof by witnesses, and indeed appears, from the prayer of the pursuer's petition, to be the mode of enquiry which occurred to her advisers as the fittest for a case such as the present.”
After a report from two builders, the Sheriff “approved of it, and found the defenders entitled to execute the proposed excavation in the manner suggested in the report, the operation being performed entirely at their own expense, and at the sight and to the satisfaction of the reporters, and to that extent recalled the interdict; and found the pursuer liable in expenses.”
Miss Murray brought an advocation, under which two other reports from men of skill were obtained.
The Lord Ordinary pronounced this interlocutor:—“Finds that the piece of ground on the south side of West Maitand Street, including the area on which the advocator Miss Murray's house is built, as well as that on which Mr Johnston, the respondent, proposed to build, originally belonged to Captain Hugh Morrison: Finds that some houses, and in particular that now possessed by the advocator, Miss Murray, were built by the said Captain Hugh Morrison while the whole piece of ground was his property, and that the advocator's house was the farthest east of the houses so built by him: Finds that the whole of those houses, including that of the advocator, were built level with the street, and had no sunk stories: Finds that the area immediately adjoining the advocator Miss Murray's house on the east, was acquired by the respondent, Mr Johnston, from the trustees of Mr Thomas Morrison, to whom it had come by purchase from the foresaid Captain Hugh Morrison, or those in his right: Finds that, in the feu-right granted to the respondent Mr Johnston, by Morrison's trustees, he is bound to build three tenements or dwelling-houses on the area acquired by him, with sunk stories; and that he accordingly proposed to excavate the ground immediately adjoining the east gable of the advocator's house, for the purpose of making a sunk story: Finds that this was opposed by the advocator, on the ground that such operation must endanger the security of her house, while, on the other hand, the respondent maintained his right to execute any operations within his own property; and that, if those operations were carried on with due care and attention, he could neither be prevented by, nor subject to any claim of damages at the instance of the advocator, the adjoining proprietor, on the ground above stated: Finds that, in these circumstances, an interdict was applied for by the advocator, and gave rise to the present litigation, in which Thomas Morrison's trustees, the authors of the respondent, Mr Johnston, have sisted themselves as parties: Finds that, although the mode of building with sunk stories is in many situations within burgh that generally followed, that of building without sunk stories is, in other situations, equally common: Finds that, while both of those modes of building may be in themselves equally legitimate uses of property, a party who purchases a building area in a situation in which the latter mode—that of building without sunk stories—has been previously adopted, must be held to have known and acquiesced in those restraints against the alteration of that mode of building, which are indispensable to the safety of the neighbouring
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* Note,—“The question originally raised before the Sheriff was, whether or not the respondent, if taking all the precautions within his power, was entitled to excavate the ground for the purpose of making a sunk story in the building area immediately adjoining the east gable of the complainer's house, without regard to the risk to which the complainer's premises might be exposed by that operation? The Sheriff adopted the plea of the respondents, by his interlocutor of 26th June, 1829, finding that ‘the defender, George Johnston, is entitled to excavate to the verge of his property, although his doing so should be attended with hazard to the pursuer's property, provided he do so in the most careful and prudent manner, in reference to the interests of the pursuer, of which circumstances admit.’ This principle being fixed, a remit was made to Messrs Smith and Dobson to report on the manner in which it could be best carried into effect. Their report was approved of; and, by the interlocutor of the 20th of November, 1829, the defenders were found entitled ‘to execute the proposed excavation in the manner suggested in the report.’ The complainer then advocated the cause; and it seems to have been held by the Lord Ordinary, the late Lord Newton, before whom the cause came, that the case could not stand upon the report of Messrs Smith and Dobson. Indeed that report is exposed to a very formidable objection. On considering the terms of the Sheriff's interlocutor and note, as well as the whole previous proceedings, it is clear that the only point remitted was the mode of excavation to be adopted by the respondent, George Johnston,‘to the verge of his property,' ‘the least prejudicial and hazardous to the complainer's tenement.’ Now, the operation reported upon by Smith and Dobson was not merely an excavation ‘to the verge of the respondent's property,' which, if so confined, they appear to have rejected as insecure, but the under-building of the complainer's gable, which necessarily implied an excavation to a certain extent of her property, and thus raised a question different from that which had been formerly discussed by the parties: Lord Newton then, by an interlocutor of I8th December, 1830, made a new remit to Mr Robert Brown to inspect the premises and report,—
“1st, Whether Mr Johnston can dig the sunk story close to Miss S. Murray's wall with perfect safety to Miss Murray's gable and house; and, 2dly, If so, how far this can be done by executing Mr Milne's plan (the plan originally proposed, and lodged in process by the respondent) and specification in process; or what other plan will be necessary, Mr Johnston always working within his own boundary. Mr Brown's report was decidedly in the negative. And the question having been again argued before the Lord Ordinary, the respondents, Morrison's trustees, who then took the active part in the litigation, maintained not only their original plea, viz. their absolute right to execute any excavations within their own property, but also alternatively the plea arising from the suggestion in the report of Messrs Smith and Dobson, viz. that if the advocator objected, on considerations of the safety of her premises, to the operations to be executed within their own property, she was bound in equity to admit of this trifling extension of their operations to hers, if it obviated all risk, and was conducted at their expense. As the parties, however, were at issue here, too, on the question of fact as well as the law, a new remit was made, of consent of parties, to Mr Wallace to report,—
“1st, How far Mr Johnston could execute the proposed plan of building with a sunk area without injury or danger to the advocator's wall, Mr Johnston always working within his own boundary; and, 2dly, How far the said plan could be executed, even by under-building the advocator's gable, without Injury or danger to her wall. On the first point Mr Wallace answers decidedly in the negative; and thus confirms all the former reports. Upon the second point his answer is not quite so decisive, though it is also in the negative in regard to a certain part of the proposed operation. But it is unnecessary to consider this second point, as the Lord Ordinary understood at the debate on this report that the respondents declined this plan of under-building, and argued the question upon the ground originally, and indeed exclusively, maintained in the inferior Court, viz. That a party confining his operations to his own property, and conducting those operations in as prudent and skilful a manner as circumstances will admit of, is not barred from so using his own property by the consideration of the danger or damage which may be thence occasioned to that of the adjoining proprietor.
“The question is not free from difficulty, and it is not to be solved by the general rule, that a party is barred from using his own property in such a way as must necessarily and directly injure the property of another: For there is here the important specialty, that the proposed operation or use of the respondent's property, by excavating a sunk story, could have been attended with no injury to the advocator, but for the use to which she or her authors had previously applied hers, namely, to building without a sunk story. But the Lord Ordinary thinks that this must be treated as a special case; and that there are grounds, in such circumstances as those which exist here, for qualifying the operation of that general principle, cujus est solum ejus est a centro usque ad cælum, so broadly maintained by the respondent, and adopted by the Sheriff; in his note of the 26th June, 1829. It appears to him, that when two different parties acquire areas, notoriously and confessedly intended for the purpose of contiguous building, and where the one erects a house in a way not absolutely inconsistent with general usage, and not necessarily restrictive of similar operations on the part of his neighbour, such neighbour, if not giving notice, or making objections at the time, must be held to have acquiesced in that mode of using the contiguous property, and in the restrainta thence obviously and necessarily arising on the future use of his own; that is, in those restraints indispensable for the security of the adjoining house. If one propristor is allowed to build a house having no sunk story, and with a foundation suited to such a plan, without any notice from the adjoining proprietor of a different design on his part, or any requisition that the foundation shall be more deeply laid, the Lord Ordinary does not think that such adjoining proprietor could be entitled, as a matter of right, to adopt a different plan, and to dig out one or two sunk stories, having necessarily the effect of damaging, and probably the effect of destroying the neighbouring house. It rather appears to the Lord Ordinary, that whatever difficulty or delicacy there may be sometimes in the doctrine of acquiescence, this is a case to which it must legitimately apply; and the case is still stronger, when, as happened here, the party purchases a building area immediately adjacent to a house already constructed, in such a way as fairly and obviously to imply a restraint against an alteration, in one particular, of the mode of building previously adopted. Indeed, when thus considered, the question is one of very great practical importance. In this city there are many situations occupied by very lofty buildings, and without sunk stories. Now, if a party were to acquire a tenement in any of those situations, he might be entitled to take it down and rebuild it, even although those operations might possibly be attended with some little risk to the contiguous tenement, as those are risks against which the neighbouring proprietors must be held bound to guard. And the Lord Ordinary understands this to have been the import of the English cases referred to by the respondents; but it would be rather a startling proposition to maintain, in such circumstances, that because he was proprietor ad centrum he was entitled to alter the usual mode of building in that situation, and to excavate any number of sunk stories, to the manifest injury, and probable destruction, of the adjoining houses.
“Upon these grounds the Lord Ordinary has altered the interlocutor of the Sheriff; but, under all the circumstances of the case, is not inclined to give expenses.”
Miss Murray reclaimed on the point of expenses.
The Court, on the question of expenses, adhered.
Solicitors: C. B. Scott, W.S.— Gibson-Craigs, Wardlaw, and Dalziel, W.S.— A. Johnston, W.S.—Agents.