Scottish Court of Session Decisions

This was a petition to the Sheriff of Aberdeen at the instance of Alexander and Andrew Jopp, as trustees of the late Sir James A. Gordon, proprietors of one-half of the lands of Auchnacant, in the parish of Foveran, and Mr J. A. West, proprietor of the other half of these lands, to have Alexander Scorgie, the sub-tenant of the farm of Brunthill of Auchnacart, interdicted from pulling down or removing a stone and lime addition which he had built and added to the farm house.

The facts of the case appear from the interlocutor and note of the Sheriff-Substitute ( Thomson):—

Aberdeen, 26 th November 1869.—Having resumed consideration of the cause, finds in fact that the respondent is sub-tenant of the subjects in question, under a lease which expires at Martinmas 1873: That he built a kitchen of single hollow brick, and with a tile roof, for the accommodation of his family, in 1866; that it became uninhabitable; that he conceived the intention of pulling it down, and of building a habitable kitchen on its site; that he entered into a contract for such new erection; that he pulled down part of the former kitchen: Finds in law that in so doing the respondent does not prejudice the rights of the petitioners as proprietors of the subjects: Therefore sustains the defence; recals the interim interdict formerly granted, dismisses the petition, and decerns: Finds the respondent entitled to expenses of process; allows an account thereof to be given in, and remits the same when lodged to the auditor of Court to tax and report.

Note.—The removal complained of has occurred while there are yet four years of the respondent's lease to run. He erected the building because the existing house was not large enough for his family. It was built as cheaply as possible, of hollow bricks, and has been proved to have become unfit for habitation. The testimony of the witnesses as to its uselessness as a dwelling is unanimous, and is confirmed by the fact that the respondent had actually to hire a house in Newburgh, to which he removed his wife and all of his family who could be spared. Further, there is evidence to show that the respondent entertained no intention of dismantling the premises. He acted and spoke like a man who honestly purposed to rebuild what he was pulling down, but in a more substantial manner. It is highly improbable that he meant to divide his family during the remainder of the lease; and without an addition such as the kitchen in question there is not room for them in the house.

The rule is well fixed in our law, Inœdificatum solo cedit solo, but it is quite apparent from the more modern decisions of the Supreme Court that whatever may be the case in questions between liferenter and fiar, and lien and executor, the rule is less rigidly applied in questions between landlord and tenant; see the opinions of the Lords of the First Division, and especially of Lord Curriehill, in the case of Syme v. Harvey, 14th Dec. 1861, 24 D. 202.

“In this case the erection was made for a special purpose, arising from the respondent's family circumstances. It became unfit for that purpose, and it is thought that his landlord is not entitled to interfere with him in making it fit for habitation either by repair or renewal.”

On appeal the Sheriff ( Jameson) adhered.

The petitioners appealed.

Balfour and Shand, for them, cited Murray v. Bisset, Hume's Decisions, 818, 21st May 1805; Oliphant v. Thomson, 1 S. 307; Elwys v. Mawe, 2 Smith's Leading Cases, 153.

Rhind, for the respondents, was not called on.

At advising—