Scottish Court of Session Decisions

R. Clark & Sons, undertakers, Perth, presented a petition to the Magistrates of

Page: 717↓

Police of the Royal Burgh of Perth, as the Dean of Guild Court thereof, for authority to erect certain buildings upon ground belonging to them.

Objections were lodged by the School Board of Perth and by William M'Caul, who founded upon a stipulation contained in a disposition granted by the petitioners' author in favour of their (the objectors') author, which stipulation was also embodied in the sasine following on that disposition. It was as follows—“And it is hereby expressly declared that me” ( i.e., the petitioners' author) “and my successors are to be secluded and debarred from making any erections, buildings, or other impediments within 14 feet of the west gavel of the dwelling-house hereby disponed, so as not to interrupt the lights thereof; but I, the said John Duncan, am to have a liberty, if I chuse, to erect a paling at the distance of 3 1 2 feet from the west gavel of the said dwelling-house 5 feet in height.”

The objectors also founded upon the following provision contained in the disposition granted in favour of the petitioners by their immediate authors—“Declaring also that the servitude hereinbefore constituted by the said declaration and restriction shall be over and above, and without prejudice to, a servitude of a similar character presently existing over the said yard or vacant ground, or part thereof, in favour of William M'Caul's foresaid tenement, bounding the said yard or vacant ground on the east whereby the proprietors of the said yard or vacant ground are excluded and debarred from making any erections, buildings, or other impediments within 14 feet of the west gable of William M'Caul's foresaid tenement, so as not to interrupt the lights thereof.”

In virtue of these provisions in the titles the objectors claimed that the petitioners were not entitled to build on any ground which came within 14 feet measured in any direction from any part of the west gavel of the dwelling-house referred to, and that as the buildings proposed to be erected were partially in that position authority for their erection should not be granted.

The further facts in the case, so far as important, sufficiently appear from the Dean of Guild's interlocutor and note.

On 24th February 1898 the Dean of Guild pronounced the following interlocutor:— “Having heard the agents for the petitioners and the compearing respondents, and considered the closed record, plans, and whole process, Finds that the lands belonging to the petitioners and the adjoining lands belonging to the compearing respondents and the respondent James Nairn respectively originally formed one subject, which belonged to John Duncan, wright in Perth: Finds that by disposition, dated 20th March 1798, the said John Duncan conveyed the subjects, now belonging to the compearing respondents, to Alexander Bald, shipmaster in Perth: Finds that it is provided in said disposition that the said John Duncan and his successors in the remaining lands were to be secluded and debarred from making any erections, buildings, or other impediments within 14 feet of the west gable of the dwelling-house thereby disponed so as to intercept the lights thereof: Finds that the petitioners are not proprietors of part of the subjects upon which the servitude constituted by said disposition was imposed: Finds that the workshop proposed to be erected by petitioners, and for which they ask warrant, is not to be erected within 14 feet of said gable, and will not intercept the lights thereof: Therefore repels the objections of the compearing respondents, and grants warrant as craved,” &c. He also found the compearing respondents liable in expenses.

Note.—“The only objection the compearing respondents have to the petitioners obtaining warrant as craved is that the petitioners propose to place the north wall of their intended workshop within fourteen feet of the west gable of their, the respondents', tenement in violation of the servitude of lights in their favour imposed on the petitioners' property. The petitioners admit that such a servitude has been constituted in favour of the objector's tenement, but deny that their buildings will in any part come within the restricted area.

It seems that in 1798 the different subjects which now belong to the petitioners, the compearing respondents and the respondent Nairn (who does not appear to object) respectively, belonged wholly to Mr John Duncan, who conveyed the portion of his subjects which now belongs to the compearing respondents to Alexander Bald, and in the disposition he imposed a servitude on the subjects retained by him for the benefit of those sold to Mr Bald.

The remaining subjects which belonged to Mr Duncan were subsequently divided in the course of various transmissions, and the state of matters now is that the respondent Nairn is proprietor of the ground directly west of the west gable of the objectors' property, and the petitioners are proprietors of the ground to the south of Mr Nairn's property. Thus the northern boundary of petitioners' property on which they propose to build runs due west from the south end of the west gable (for the benefit of which the servitude was imposed) along the southern boundary of Mr Nairn's property.

Such being the position of the various properties, so far as they bound each other, the objectors contend that the restriction against building within 14 feet of their gable wall, besides applying to the ground in front of the wall, extends to all ground within the radius of 14 feet from each end of it. That is, as they argued in the present case, the prohibited area is not only the 14 feet lying immediately due west of the southern termination of the gable wall, but the area lying within the segment of a circle drawn from that point to a point 14 feet due south of the wall. They base their argument on the phraseology of the clause imposing the servitude that John Duncan and his successors ‘are to be secluded and debarred from making any erections, buildings, or other impediments within 14 feet of the west gavel

Page: 718↓

of the dwelling-house hereby disponed so as not to interrupt the lights thereof;’ and they contend that this restriction extends at the point where the gable terminates to every portion of ground within a radius of 14 feet of any part of the gable wall, where an erection would interfere with its lights. I cannot accede to this view. I consider that the plain meaning of these words is that the 14 feet are to be measured straight out and at right angles with the line of the gable wall, and that to give them the meaning for which the compearing respondents contend is to place on them a very strained meaning indeed. It is a well-known principle of law that if two meanings can be placed on the construction of a clause imposing a servitude, that meaning is to be given effect to which is most favourable to the servient tenement.

If a servitude such as the one under consideration were intended to extend over ground not exactly opposite the gable wall, it would require to be constituted in exact and unambiguous terms. I therefore hold that the ground on which the petitioners propose to build is not affected by the servitude in favour of the objectors, and that they are entitled to the warrant they crave.”

The compearing respondents appealed, and argued—To interpret the stipulation founded on by the objectors as the Dean of Guild had done, was to read into the clause the words “ ex adverso” between “14 feet” and “of the west gavel.” This was not legitimate. If no such qualification was read in, then the plain meaning of the words was as maintained by the objectors. A building in the position of that proposed would seriously interfere with the light coming to the gavel in question.

Counsel for the petitioners were not called upon.