Scottish Court of Session Decisions

The Merchant Company of Edinburgh, as Governors of George Watson's Hospital, acquired by purchase on 11th March 1876 the house No. 5 George Square, Edinburgh. They made considerable additions to it, and used it as a day-school for girls, called the George Watson's College for Ladies, in connection with the Hospital No scholars resided in the house, nor was anyone left in charge of the premises after school hours.

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The Merchant Company had previously been for some years tenants of the house for the same purpose. They also acquired No. 6 which they let to a tenant. The house No. 5 was situated upon the north side of George Square, in the centre of which is a large piece of ornamental garden ground, enclosed by an iron railing, and used by the inhabitants of the Square as a garden and pleasure-ground. In the contract of feu between James Brown and Walter Scott of Harden, dated in 1770, by which the subjects were conveyed by Mr Brown to Mr Scott, the house was conveyed with “a right and interest in the centrical area in the middle of the said intended great Square, as delineated in the plan thereof, jointly and in common with the other proprietors of other houses now building or to be built in the said Square, which right to the centrical area is to commence and take place at Martinmas 1772, the proprietors of the Square always inclosing, smoothing, laying, and keeping the same in good order and in an ornate manner.” A similar clause was inserted in the titles of the other houses in the Square.

The proprietors in the Square, in or about April 1819, selected from their number a committee to manage the garden ground in the way of planting of trees, laying out the gardens, and framing regulations for their preservation and maintenance.

The earliest extant table of regulations for the said gardens contained, inter alia, the following rules:—“II. No proprietor shall lend or transfer his keys to non-proprietors upon any account, except to his tenants. IV. Proprietors or tenants entitled to access to the garden, and members of their families, may introduce non-proprietors into the garden, but only when along with themselves, and no children belonging to schools in the Square shall be admitted unless boarded with a proprietor and tenant.” The table of regulations in which these two rules first appeared bore no date, but they were incorporated into the subsequent tables for 1843, 1845, and 1880.

It appeared from the minutes kept by the various committees of management that these regulations had always been strictly enforced, and especially the rule relating to the exclusion of children attending any school in the Square who were non-resident in any house having a right of access to the gardens. In particular, in the year 1835 a meeting of the proprietors having considered a letter by the Principal of the Ladies' Institution for the Southern District, which then occupied No. 55 George Square, “requesting permission to a certain extent for the scholars attending that institution to have access to the centre area,” agreed that permission could not be granted, the meeting thereby confirming the action of the committee who had previously refused admission to the scholars, as distinguished from the family of the Principal.

On 4th May 1882 application was made by the Governors of George Watson's Hospital to the Garden Committee for six keys for the gardens in respect of the house No. 5 purchased by the Governors in George Square, in order, as stated in the letter of application, “that the gardens may be used to a limited extent by the head-master and pupils.” The application was refused on the ground that the parties for whom the keys were asked were neither proprietors nor residenters in the Square.

The Governors, after a correspondence with the clerk to the proprietors in George Square, thereupon raised against the other proprietors in the Square an action of declarator “that the pursuers, as proprietors of the house No. 5 George Square, Edinburgh, have, in terms of their titles, right and interest, as an accessory to their said house, to the garden in the central area of the said Square in common with the other proprietors of houses in the said Square; and that the pursuers have right to such access to the said garden as is consistent with the maintenance of the said central area as a garden in good order and in an ornate manner, and with the fair exercise of the rights of access thereto belonging to the other proprietors of houses in the said Square: And it ought and should be found and declared, by decree foresaid, that the pursuers are entitled to have their right of access to the said garden judicially regulated and protected as against the defenders, and that the following regulations, or such others as our said Lords may direct, are to be observed for the exercise of the pursuers' said right of access, videlicet, that the pursuers, so long as they employ the said house No. 5 George Square as a day-school, known as George Watson's College for Ladies, may exercise their said right of access by themselves, or by allowing their head-masters, teachers, or pupils in attendance at the said school to enter and use the said garden in the same manner as the said garden is now entered and used by the other proprietors in the said Square, their families and tenants, but so that not more than ten persons connected with the said school, or such other number, less or more, as our said Lords may determine, shall be within the said garden at any one time.” There was also a conclusion for interdict against the defenders keeping the garden closed against the pursuers or their head-master, teachers, and pupils.

The pursuers, inter alia, averred that they were the proprietors of the largest and most valuable subjects in the Square, and in that capacity they contributed the largest proportion of the expense of keeping the central area as a garden in good order and in an ornate manner. Their last annual contribution, paid on the 11th April 1882, and applicable to Nos. 5 and 6, was £9, 7s. 6d. They further averred that the regulations framed in July 1880, being the latest series of regulations, were not made known to them until shortly before the present action was raised. They also alleged that, as the individuals who were for the time Governors of the incorporation could take no personal benefit from the corporate property, the restriction insisted upon by the defenders was equivalent to a refusal to allow any exercise of their rights in the garden.

The defenders averred that in the original charters it was contemplated that the subjects conveyed should be used only as dwelling-houses of a superior class. Various restrictions were introduced, and shops and manufactories of all kinds were expressly forbidden. They further detailed the refusal of the application on behalf of a school in 1835 as above narrated. They further explained that the present pursuers, before purchasing the house No. 5 George Square in 1876, had for several years been tenants of the subjects, and so were aware of the rules regulating the access to the gardens, and no application

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for access was ever made until 1882.

The pursuers pleaded—“(1) The pursuers having a right, in common with the other proprietors, in the garden of George Square, they are entitled to access and use of the said garden in common with the other proprietors. (2) The pursuers being contributors to the maintenance of the common subject as a garden, they cannot be excluded from such use thereof as is practicable to them as an incorporation by the head-master, teachers, and pupils of their school. (3) The use to be made of the garden by the pursuers is matter for regulation by the Court, having regard to the common rights of the pursuers and defenders respectively.”

The defenders pleaded—”(2) The pursuers and their authors having for forty years, or time immemorial, taken part in and acquiesced in the management of the George Square gardens by the proprietors in the Square, are barred by their own actings, and by mora and acquiescence, from insisting in the present action. (3) The action being an action for the purpose of obtaining a right of access to the gardens for persons who are neither proprietors nor residenters in the Square, the pursuers have no right, title, or interest to sue. (4) On a sound construction of their titles the pursuers have no right of common property in the George Square gardens, but only a right of common use of or servitude over the same. (6) The use of the said gardens by the proprietors in George Square having for the last forty years been confined to themselves and their tenants, or other persons resident in houses in the said Square, and having been exclusive of the use thereof by persons not resident in the Square, and in particular by persons attending schools in the said Square during the day only, the defenders are entitled to absolvitor. (7) The right of access claimed by the pursuers for teachers and pupils attending their schools during the day being inconsistent with the rights of parties, and detrimental to the defenders' property and the amenity of the George Square garden, the defenders ought to be as-soilzied.”

On 3d July 1883 the Lord Ordinary ( M'Laren) sustained the defences and assoilzied the defenders.

“ Opinion.—The Merchant Company, as Governors of George Watson's Hospital, have established a school for girls in a dwelling-house in George Square, which they purchased for the purpose. In this action they claim a right of access for their teachers and pupils to the garden in the central area of the Square, subject to regulation by the Court. If a pro indiviso right of property in the garden had been vested in the pursuers in common with the other proprietors of houses in the Square, I should have considered the claim to be well-founded. The enjoyment of a right of common property must always be subject to reasonable limitations, so that one proprietor may not obtain an excessive benefit at the expense of his co-proprietors. But I should not think it within the competency of a body of proprietors to convert a right of common property into one of mere personal use, and thus to deprive a corporate body, who cannot make use of the garden in person, of all benefit of the common property.

In the case under consideration the superior has not made over the garden or central area of George Square to the feuars in property. It remains, along with the carriage-way, the property of the superior, each feuar being invested by his feu-contract or charter with a right and interest therein in common with the proprietors of the other houses, and taken bound to concur with them in maintaining the central area in its condition of garden and ornamental ground.

In the case of Lady Willoughby d'Eresby against certain feuars of Callander I had occasion to consider the nature of the rights of feuars in relation to land laid out by the superior for the accommodation of the body of proprietors, but not conveyed to them. Although the case is apparently not reported, I understand that my judgment was affirmed in the Inner House subject to certain alterations made by agreement of parties in relation to the extent of ground to be taken for the enlargement of the parish church. In that case the main question was, whether the adjacent feuars had (without any title to the solum of the square) such a right and interest in the square as would enable them to prevent the superior from making a small encroachment on it for a purpose of public utility, namely, the enlargement of the church. I held that the feuars could not without a title acquire the absolute usufruct of the square, but that a use of a more limited character might be acquired by the superior's appropriation of the land to common purposes, and that evidence of past occupation and past assertion of right on the part of superior or feuar was admissible to explain the nature and extent of the use. I see no reason to alter the opinion then formed. In the present case the feuars' right to the use of the central area is recognised in their title-deeds, while in the Callander case it was inferred from the appropriation of the area to the uses of a square and from long possession. But as the George Square titles in no degree define the use which the feuars are to make of the garden, or prescribe a system of management, I must, as in the case referred to, be guided by the facts of past possession and past administration in determining whether the use claimed by the pursuers is within the measure of their rights.

This being so, I can have no difficulty in determining what my decision should be. The minutes of the proprietors, which extend over a period of more than forty years, confine the privilege of the garden to occupiers and their families, and exclude children attending schools within the Square. These minutes, in my opinion and the usage following on them, define the pursuers' rights, and disentitle them to the declarator concluded for in the present action.”

The pursuers reclaimed, and argued—(1) The right conferred by the feu-charter over the garden ground was one of common property, or (2) of common interest, which in a case like the present was almost equivalent to common property. Before they could be lawfully excluded from these gardens the other proprietors would need to show some damage to have been done to the gardens by the pursuers or those whom they represented. The right claimed here resembled a common interest in water, and the law in that analogous case was laid down in Morris v. Bicket, May 20, 1864, 2 Macph. 1084. The present was a case in which the Court should interfere to regulate, the rights of parties, as in the cases of Menzies v. Macdonald, March 10, 1854, 16 D 827,

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and 2 Macq. 463; and of Paterson v. Magistrates of St Andrews, March 13, 1880, 7 R. 712, and 8 R. 117. The garden was a pertinent of the house, and so long as the house was lawfully used the pursuers were entitled to use the pertinent. There was nothing in the usage proposed which was at variance with the usage adopted by the other proprietors. If the number for whom admission was claimed at one time seemed to the Court to be too many, it was a matter for the discretion of the Court to fix a number.

Counsel for the defenders were not called on.

At advising—