Scottish Court of Session Decisions

This was an appeal from a decree of lineing by the Guild Court of Glasgow, granted on a petition presented by Charles Malloch, glass merchant, 12 Croy Place, Glasgow, against certain parties, including Colin Campbell Gray, merchant in Glasgow, and praying the Court to line the petitioner's property, and to authorise them to erect the buildings, and execute the operations, all as shown by plans produced. The petitioner set forth that he owned certain subjects on east side of Miller Street, Glasgow, and forming Nos. 62 and 66 of that street, and that he proposed to make alterations on the back buildings of said subjects; to connect the front buildings with the said back buildings, and to connect both back and front buildings with his property to the north by means of passages underground and openings in the walls, as shown on ground and elevation plans produced. To this petition answers were lodged by Colin Campbell Gray, proprietor of the two upper storeys of Nos. 62 and 66 Miller Street, an apartment at the foot of the staircase leading up to the said two flats, a cellar, and two sunk cellars under the said two flats, the one going through the other in the back building behind the said tenement, together with a coal cellar in south-west corner of said back buildings. He pled (1) that the proposed alterations and erections, being in violation of the conditions in the joint titles to their respective subjects, and to an agreement between their predecessors, the prayer should be refused; (2) that the proposed alterations would materially interfere with and alter the respondent's rights in the subjects, and endanger the stability of his property. This plea, however, was not insisted on at the bar.

The common title was a disposition dated 20th December 1791, which declared that the front of said tenement “shall be composed of ashlar work, and shall consist of a half sunk storey and two square storeys, and garrets, and no more, but may be of a less composition or size.” By disposition dated 30th July 1798, the common author conveyed to the predecessor of the respondent the two upper flats and the cellars of said tenement, with the declaration “That I, and all other persons acquiring right from me, shall have no right of opening or entry into the foresaid staircase leading up to the said two flats or storeys, or any access thereby; and further, that we shall be prohibited and debarred from erecting at any time hereafter any other building on any other part of the foresaid steading of ground, than those at present thereon, or of raising the back buildings thereon higher than they presently are, except that we shall have liberty to raise the foresaid back building three feet above its present height, which is 26 feet above the ground, and in these terms the said Robert Gray shall have a right of servitude over the remaining parts of the said steading for the preservation of the lights of the subjects before disposed, and which is now conveyed to them.”

In the year 1802 the respective predecessors of the petitioner and respondent executed an agreement, which was recorded in the Burgh Register of Sasines, by which, with the view of avoiding misunderstanding relative to the execution of proposed buildings by Thomas Graham, the petitioner's predecessor, a ground plan of the proposed buildings was approved of, on the express condition of the said Thomas Graham becoming bound to observe the conditions after expressed, “which he hereby accordingly binds and obliges himself, his heirs and successors in said property, to fulfil and perform, as follows, viz., the said Thomas Graham, for himself and his foresaids, renounces and for ever gives up the right or liberty of raising the foresaid back building and cellars aforesaid higher than 26 feet, and shall and hereby does confine the said intended building and roof to the height of 26 feet above the level of the court, along the whole extent of said steading; and in like manner the said Thomas Graham renounces the liberty of laying a staircase to the foresaid back buildings; and in general the said Thomas Graham binds and obliges himself and his foresaids not to make any building or erection whatever on the foresaid close, other than those now agreed to.

On 3d January 1872, the Dean of Guild granted decree of lineing.

The respondent appealed.