Scottish Court of Session Decisions

In 1876 Peter Barr erected a four-storey tenement of shops and dwelling-houses at 24 Bridge Street, Partick. The northmost foundation was built of solid blocks of stone, on the centre of which the northmost gable-wall was erected, there being left projections or “scarcements” jutting out from the foundation into the adjoining property. This adjoining ground then belonged to M'Gregor's trustees, but at the date of this action had come to belong to Messrs Lindsay & Benzie, builders, Glasgow, who in 1883 began to build a tenement of shops and dwelling-houses on it, and in doing so they inserted or rested certain joists, beams, lintels, or other parts of their building into or upon the gable of Barr's tenement, which gable was not built as, and was not, a mutual gable.

Barr, through his factor, objected to their placing their tenement against his gable, and they therefore erected a lining of brick 4 1 2 inches thick, between the chimney breasts which according to their original plan were placed against Barr's gable, and carried this lining or gable-wall to the top of their tenement, and backed their fireplaces and a bedplace with “scones” or thin bricks 1 1 2 inches thick against his gable.

On 16th August 1883 Barr presented against them this petition, the prayer of which was as follows:—“To interdict the defenders from using or interfering in any way with the north-most gable-wall and ‘scarcements’ of the foundations of pursuer's property situated at No. 24 Bridge Street, Partick, and from supporting or resting on, or fixing into said gable-wall, the front and back walls, partitions, chimneys, joists, lintels, and other parts of the tenement in course of erection by defenders on their property adjoining and immediately to the north of the pursuer's property, or from otherwise invading or encroaching upon the pursuer's said property: And to grant interim interdict: And to ordain the defenders instantly to remove such connections as have already been made with the said gable-wall of pursuer's property, and to restore the wall to the condition in which it was before the defenders' interference therewith: And also to build a separate gable-wall next that of pursuer, or otherwise to support their said tenement so as not to cause injury to that of the pursuer: And failing their removing and restoring and building or supporting as aforesaid within such period as the Court shall appoint, to grant warrant to the pursuer to get the said removal and restoration and building or supporting effected: And to find the defenders liable in the expenses thereof and of this application: Reserving the pursuer's claim for loss or damage already sustained, or which he may yet sustain, in consequence of the defender's wrongous interference as aforesaid.”

The pursuers averred—“(Cond. 3) It is averred that it is and was long prior to 1876 the universal custom in Glasgow and other parts of Scotland, and necessary for the stability of the buildings, for one proprietor in building, as the pursuer did, to project the ‘scarcements’ of the foundations of his building into his neighbour's ground, and only to cut them away when the adjoining proprietor should come to build upon his own ground, and to be allowed to do so should he not be called upon to cut them away. It is also averred that it is the like custom, and necessary for the stability of the buildings, for proprietors like the defenders, in building a tenement such as theirs, after the ‘scarcements’ of the foundations of their neighbour's property are cut, to lay a separate foundation and

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build up a separate gable wall for the support of such tenement. (Cond. 4.). .. Pursuer, besides acting in accordance with said custom, previous to projecting the said ‘scarcements’ arranged with the defenders' predecessors, M'Gregor's trustees, to do so, and that the ‘scarcements’ should be cut away so soon as their successor should come to build upon their property. These ‘scarcements’ are not fit for being built upon to support said tenement of defenders; and to enable the latter to build a foundation and gable of their own the pursuer has always been willing, and offered before the defenders began operations, to cut away said ‘scarcements.’ (Cond. 5) The said northmost gable wall of pursuer's tenement is solely erected upon his property, and is only a ‘single’ gable-wall, and it and the said foundations thereof are only adapted for the support of his own tenement. (Cond. 6) The defenders, however, in erecting their said tenements, are not building any separate gable-wall next pursuer's said gable-wall, but, instead, are using and interfering with the latter, and building upon the ‘scarcements’ of the foundations thereof, and are supporting, resting, or fixing into the pursuer's said gable-wall the front and back walls, partitions, chimneys, joists, lintels, and other parts of their tenement.”

These acts the pursuer complained of as encroachments on his exclusive property, and as causing serious injury thereto.

The defenders denied the existence of the custom averred by the pursuer, and also the alleged arrangement with his predecessors. The defenders removed the joists, beams, or lintels previously inserted in or resting on the pursuer's wall.

The Sheriff-Substitute ( Guthrie) after a report from a man of skill granted interim interdict as craved, except in so far as the “scarcements” of the foundation of the gable-wall in question are concerned.

The pursuer died in December 1883. His daughters Mrs Leonard, and Mrs M'Culloch, and Jane Barr, who were the fiars of the property built by Barr, he being only liferenter, had previously been sisted as pursuers. Subsequently William Nicolson acquired the property from the fiars, and was sisted as pursuer.

A proof was led, the import of which fully appears in the notes appended to the Sheriff's interlocutors, and in the opinions of the Judges.

On 25th January 1884 the Sheriff-Substitute ( Guthrie) pronounced this interlocutor:—.. . “Finds that it is the usage of Scotland, or at least of Glasgow and the vicinity, for a feuar in building a house in a street to project the scarcement of a gable which he builds within his own ground into the vacant ground of his neighbour, and that he is bound to cut it away when his neighbour comes to build upon his own ground: Finds that when the defenders began to build their tenement they made no provision for erecting any gable, but intended to place their tenement against the pursuers' gable, taking such use of it as they might be allowed by the pursuers' carelessness or ignorance to take: Find that when the pursuers' factor objected to their proceedings, they erected a lining of brick 4 1 2 inches thick between the chimney breasts, which according to their original plan were placed against the pursuers' gable, and having carried this lining or gable wall 4 1 2 inches thick to the top of their tenement, and that they backed their fireplaces and a bed-place with scones or thin bricks 1 1 2 inches thick placed against the pursuers' gable: Find that to a considerable extent this lining rests upon the scarcement of the pursuers' gable which the pursuers were never asked to remove although they were willing to do so, and that it and the said ‘scones’ or thin bricks lean against and are supported by the pursuers' gable: Find that in the circumstances the pursuers were entitled to have the scarcements cut away, and that it may be injurious to their building to have the defenders' lining or gable and chimney breasts resting thereon, and that the defenders in taking such use of pursuers' gable are encroaching on pursuers' rights, and in respect of the foregoing findings, and for the reasons stated in the note, declares the interdict perpetual, and decerns: Ordains the defenders within six weeks from this date to remove the said linings or gable and chimney breasts under certification.

“ Note.—The defenders' operation in the premises in Bridge Street, Partick, have raised some questions which it is not quite easy to determine in an entirely satisfactory manner. I think, however, that a safe and just decision is facilitated if we consider how they commenced their proposed building scheme. It is evident from the plan lodged with the Dean of Guild that they did not intend to make any gable of their own, and it is not suggested that they regarded the pursuers' gable as a mutual gable. On the contrary, it provides no chimneys on their side, and the plan shows that they meant from the first to build chimneys against that gable. How they intended to proceed in regard to the spaces between the chimneys does not appear from the plan, or from anything so far as I remember which the defenders have stated either in their defences or evidence; but if I may draw an inference from what they did in certain matters mentioned in Mr M'Cord's report of 20th August, which led to the granting of interim interdict, I should say that they intended to appropriate and use just as much of the pursuers' gable as they could. However this may be, it is necessary to look at what they did rather than what they intended, and the evidence which we have in the latter subject is useful chiefly in considering what remedy shall be applied if they are found to have gone beyond their rights.

The proof and argument were chiefly directed to two matters—(1) the character of the thin gable or lining which the defenders have actually erected, and (2) the custom in regard to scarcements.

There is only an apparent conflict of evidence in regard to the usage, and the pursuers' witnesses in my opinion are the more reliable in regard to the character of the work. I take it that the pursuers' evidence embodies the views and practice of the older class of builders and architects who had been in the practice of building houses for living in, while the defenders' evidence for the most part represents the views of those who build houses for selling, and who therefore are favourable, I do not say with conscious unfairness or dishonesty, to any novelty which tends to cheapness and quick returns. I think it is sufficiently proved that the thin lining built up to the height of four storeys by the defenders would be totally unfit for its purpose

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but for the contiguity of the pursuers' wall; that the weight of a man or piece of furniture thrown against it, the kick of a foot against the ‘scones’ which form the end of the bed-place, or the thrust of a poker or a sweep's brush against the back of the fireplaces, would, but for the pursuers' gable, expose the inmates to the breezes of heaven. If this were all, it might perhaps be plausibly contended that the pursuers had not yet suffered any injury; that the defenders had not gone beyond their right in building as they pleased on their own ground, and that while the pursuers may have a claim of damages when damage is caused, they are not entitled to the remedy they are asking here. This argument is unsatisfactory for two reasons. In the first place, because it is not damage or loss which is the foundation of the pursuers' case, but encroachment on his right of property (see the cases cited by Mr Rankine, Land Ownership, 111, 112), and the nature of the defenders' building makes it impossible, without minute and constant inquiry, to discover when this encroachment occurs, and even makes it more than probable that it has already occurred; in the second place, because I am disposed to believe those witnesses who say that this lofty single brick wall cannot stand alone, and that from the first it has been dependent for support on the pursuers' gable. If I am right in holding that the defenders' building is really leaning upon the pursuers' and depending on it for support, it is enough for the determination of the case. But the usage in regard to scarcements has been founded on, and I have also formed an opinion on that subject. The usage as set forth in the interlocutor is beyond all question prevalent in and around Glasgow, if not throughout Scotland, and whether or not it is a practice which could be followed if the proprietor of the adjacent feu should forbid, it is clear that it was adopted by the pursuers in building their tenement with the consent or acquiescence of the defenders' predecessor. That being so, it was clearly the pursuers' duty to cut it away if called on by the defenders, and there can be no doubt that if the pursuers refused or neglected to do so when requested, the defenders were entitled to cut it away at his expense if they deemed it necessary for their use of their own property. The only doubt which exists is as to the defenders' right to build on it if the pursuers did not cut it away. If the pursuers, being called upon to cut it away, had neglected or refused, it may be that the defenders would have been at liberty to put such part of their building upon it as their plans might require, without regard to any mischief that might result to the pursuers' property. But the pursuers were never asked to remove their scarcement, and I am not prepared to say that there is any reliable evidence of the liferenter's acquiescence in the defenders' making use of it as the foundation (for such it is) of their brick gable or lining—certainly there is none of such actings on his part as would be binding on the present pursuers, the fiars. In that state of things I think it might be held that the scarcement is part of the pursuers' property, temporarily projected beyond his boundary in conformity with usage, or at least by the tacit permission of the defenders' authors, and in conformity with the principle of good neighbourhood, and that the defenders were prohibited by the mere principle of exclusive property from using it in any way. But as it is in evidence that the weight of a building upon the scarcement has a tendency to injure the pursuers' building, it is not necessary here to appeal to that principle, and I say that on the ground of probable damage to the pursuers' building the defenders have gone beyond their rights. Interim interdict as to the scarcement was refused in August last, if I remember aright, partly because it was not then clear what the rights of the parties in this respect were, and partly because the building upon it had gone so far as to exclude the remedy of interdict, but at this stage it is necessary to consider the remedy craved. I do not think that the present case is entirely similar in its circumstances to that of Jack v. Begg, 3 R. 35, where the Court did not go to the logical result of ordering the removal of the buildings wrongfully erected, but allowed them to remain upon equitable conditions, because the defenders are not in my opinion in a position in which they are entitled to much equitable consideration or to anything beyond the strict law, and because there is not here an equitable compensation arising out of the position of the premises which can conveniently be awarded.

Nevertheless I should have been disposed, following the principle of that decision, to remit to Mr M'Cord or to Mr Binnie to ascertain upon what terms the defenders' building might be allowed to remain, were it not that I presume that the parties wish to have an appealable judgment without further delay. They have it in their own power, if they do not appeal, to settle the question of compensation by reference or agreement.”

On appeal the Sheriff on 31st July 1884, for the reasons assigned by the Sheriff-Substitute, adhered to his interlocutor with this variation, that the six weeks mentioned in the Sheriff-Substitute's interlocutor should run from 31st July, the date of his interlocutor.

The pursuers thereafter applied for an extract, which was refused by the Sheriff-Clerk, and this refusal was sustained by the Sheriff-Substitute on the matter being referred to him. No reason for this was stated at the bar. The pursuer there-upon on 29th September 1884 lodged in process this motion—“In respect the defenders have failed to obtemper the order of Court of 25th January, affirmed on appeal on 31st July 1884, and having refused to do so, the pursuers respectfully move the Court to decern against the defenders in terms of the prayer of the petition, or otherwise.”

On 13th October the Sheriff-Substitute before answer remitted to Mr Thomson, an architect, to examine the buildings, with special reference to the interlocutors of 25th January and 31st July, and to report what measures required to be taken in order to restore the pursuer's gable to the condition in which it was before the defenders built against it, and to secure it from undue weight or pressure from the defenders' buildings and from the risk thereof.

Mr Thomson reported that certain works had been effected since the 25th January, which in his opinion were sufficient, and that he was further of opinion that there was now no necessity for any measures to be taken in order to restore the pursuer's gable to the condition in

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which it was before the defenders built against it.

On 15th January 1885 the Sheriff-Substitute of new remitted to Mr Thomson to report in terms of the former remit to him and with reference to the note.

“ Note.—It has been found that the defenders have done an illegal act in building against the pursuer's wall in such a way as their house cannot exist as a house without taking an illegal use of the pursuer's gable. The defender's have also refused to implement the Sheriffs’ order to remove their lining or quasi-gable and chimney rests, which rest against the pursuer's gable. It is obvious that the defenders have nothing to fight for except to keep their encroachment standing as long as they can, and perhaps they may now be entitled to keep it so, but it is desirable that the pursuer should be allowed, as soon as may be, to enforce his legal rights. He wishes to do so by being authorised to pull down the defenders' gable under a warrant of the Court. I was not satisfied that such a warrant should be granted in the broad terms in which it was asked. Mr Thomson's report does not enable me to grant it in any different terms, and although I think that Mr Thomson has gone beyond the remit to him in reporting as to the defenders' unauthorised operations referred to in my former interlocutor, probably because it was impossible to execute the remit without taking into account these operations, and has fallen short of it in ignoring the last words of the interlocutor remitting, I have come to think that it is inexpedient, if not incompetent, in such a case as this to give a warrant to one party to execute operations of demolition in the property of another, and that it is desirable that this action should if possible now take end, so far at least as this Court is concerned. I think so not not only for the reasons already indicated, but because it may possibly turn out that the pursuer is not without a remedy apart from that which he seeks. In this action he already holds an interdict and a decree ad factum præstandum. If the defenders are ‘using’ the pursuer's wall or ‘supporting or resting on it’ the front and back walls, partitions, chimneys, joists, lintels, and other parts of their tenement, then the pursuer may proceed against them for a breach of interdict. Other views of the position may also be taken which it is not necessary for me to indicate, but according to which he would not be without redress.

In the meantime, in order to exhaust the case, I have to request Mr Thomson to report, if possible, whether the result of the defenders' recent operations is that the pursuer's gable is now secure from the risk of undue weight or pressure from the defenders' quasi-gable, i.e., whether the latter has been made capable of standing by itself, and without leaning against the pursuer's gable more than a gable of normal thickness and strength would do.”

Mr Thomson then made a second report stating that it was difficult to say from the construction of the defenders' gable that the pursuer's gable was now secure from the risk of undue weight or pressure from it, but he was of opinion that the defenders' gable has been made capable of standing by itself just as well as a gable of normal thickness or strength would do.

On 12th March 1885 the Sheriff-Substitute found that it was not expedient in the circumstances to grant any warrant in the terms of the last alternative prayer of the pursuer's petition; therefore refused the pursuer's motion of 29th September last, and dismissed the petition so far as not already disposed of.

On appeal the Sheriff, inter alia, appointed parties to be heard on the question whether the defenders' operations, as appearing from Mr Thomson's report, complied with the terms of the alternative remedy craved in the petition, or whether further operations were still necessary, and as to whether a further remit was necessary.

“ Note.—The alternative before referred to being part of the pursuer's conclusions, I think it is still open to the Court to fall back upon it, not-withstanding the somewhat awkward position the case has got into. It must be borne in mind that the interlocutors of 25th January and 31st July 1884 were not a decree but simply an order on the non-compliance with which some alternative order or decree would follow.”

On 29th July the Sheriff remitted to Mr Carrick, city architect, Glasgow, “to hear parties, examine the pursuer's and defenders' buildings, and report whether in his opinion the defenders' tenement now conforms to the pursuer's demand in the prayer of the petition, namely, ‘to support their said tenement so as not to cause injury to that of the pursuer,’ and if not, what works are necessary to bring it into conformity with this demand, and the case to be thereafter laid before the Sheriff.”

Mr Carrick reported that though the construction of the defenders' gable adjoining the pursuer's tenement was most unsatisfactory, and such as might be described as dependent for its stability on the contiguity of the pursuer's building, it did not cause any appreciable injury to the pursuer's building.

On 26th January 1886 the Sheriff pronounced this interlocutor—“Having heard parties' procurators, and considered the whole cause, in respect of the report (Mr Carrick's), adheres to the interlocutor of the Sheriff-Substitute of 12th March 1885 in so far as it dismisses the action: Quoad ultra recals the said interlocutor, and finds defenders liable in expenses down to and including 31st July 1884,” &c.

The pursuers appealed to the Court of Session.

Authorities referred to— Grahame v. Magistrates of Kirkcaldy, Jan. 19, 1881, 8 K. 395, and July 26, 1882, 9 R. (H. of L.) 91.; Jack v. Begg, Oct. 26, 1875, 3 R. 35.