Argued for the petitioners (respondents)—The whole district had changed its character and become tenemental. The restriction having been generally departed from was not enforceable in individual cases —
Johnston v. Walker's Trustees , July 10, 1897,
Campbell v. Clydesdale Banking Company ,
cit. sup . That interest had been that the estate should remain one of villa feus. It was incompetent for them to give up their interest piecemeal, permitting tenements to be erected unopposed in various directions round their feus and standing forth as objectors only when they pleased. Feuars must enforce such a restriction as here always or then not at all. The Dean of Guild was right, and his judgment should be affirmed.
Judgment:
Lord President After narrating the facts, supra ] … I now propose to examine the authority as to this branch of the law. I do not think it necessary to go through the long series of cases which gradually established the proposition that there might be created by the original act of the superior a right in each of a set of vassals to enforce restrictions in the titles of another vassal with whom they had no direct privity of contract and no direct relation of tenure, because the whole law on the subject may be said to be summed up in two leading cases in the House of Lords, namely,
Hislop v. MacRitchie's Trustees ,
Earl of Zetland ,
Lord Zetland's case, at p. 47)—“I agree with the Lord Ordinary in thinking that the case of the
Tailors of Aberdeen v. Coutts does determine that wherever a feu-right contains a restriction on property, the superior, or the party in whose favour it is conceived, cannot enforce it unless he has some legitimate interest. But that case does not lay down the doctrine that an action at the superior's instance which merely sets forth the condition of his feu-right and its violation by his vassal must be dismissed as irrelevant because the pursuer has failed to allege interest.
Prima facie , the vassal in consenting to be bound by the restriction concedes the interest of the superior, and therefore it appears to me that the onus is upon the vassal who is pleading a release from his contract to allege and prove that owing to some change of circumstances any legitimate interest which the superior may originally have had in maintaining the restriction has ceased to exist. The law was so stated, and in my opinion correctly stated, by Lord Neaves in the case of
Campbell v. Clydesdale Banking Company .”
On the other hand, in regard to the feuar, the same noble and learned Lord says (
jus quæsitum , his title and that of the superior to enforce common feuing conditions are independent and substantially different rights. The title of the superior rests upon contract, a contract running with the estate of superiority, and burdening the subaltern estate of the vassal. The right of the feuar, though arising
ex contractu , is of the nature of a proper servitude, his feu being the dominant tenement. Consequently he cannot enforce it against other feuars except in so far as he can qualify an interest to do so. Again, the superior's consent to discharge the condition cannot affect the right of the feuar, and as little can the feuar's renunciation of his servitude impair the superior's right to enforce the condition.”
The difference in the right which exists in the superior and in the co-feuar seems to me necessarily to affect the character of the acts or omissions which will constitute a bar against them seeking to enforce their rights. It is clear that the actings of the superior cannot bind the co-feuar, and
vice versa . But the matter goes deeper than that. Observe, for instance, the position which arises in the case of what I may call the first offender—that is, the case of the first feuar contravening the restrictions. The superior may object here at once, for, as Lord Watson says, his interest is
prima facie conceded, and I am supposing there has been nothing extraneous to destroy the interest which the superior originally had. The superior therefore is clearly entitled to stop him. But with the co-feuar it is otherwise. He cannot stop him unless he can show a proper interest to do so. Accordingly, if the superior allows the act of the first offender to pass, he must either have willingly allowed it or he must have conceded that all the legitimate interest to stop such acts was gone, whereas the only inference to be drawn from the
non renitentia of the co-feuar is, that he did not consider that
in that instance his interest was sufficient to warrant his interfering.
I am therefore not surprised to find that, so far as the decided cases were concerned,
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there was not produced to us any instance of a decision in which the co-feuar has been held barred from objecting to the contravention by A because he did not formerly object to the contravention by B, the quality of his interest to object to the operations of A and B not being the same. On the contrary, the decisions of
Stewart v. Bunten , and especially of
Gould v. M'Corquodale , go quite the other way. In the case of the superior there were the well-known decisions of
Browns v. Burns ,
Campbell v. Clydesdale Bank ,
I do not think it necessary to go so far as to say there cannot be an instance where the failure of the co-feuar to assert his right in the case of other co-feuars may not be such as to allow the inference to be drawn that he has totally abandoned the right to enforce. Such an inference could strictly be drawn from the fact of his having himself contravened, and the undoubted acquiescence of his author in the dominant tenement may in this matter be reckoned as his own—
Muirhead v. Glasgow Highland Society ,
Applying these views to the facts of the present case, I come to the conclusion that the objectors are not barred from insisting in their admitted right to stop the proposed contravention of the petitioners. The Dean of Guild seems to me to have erred in limiting interest to one consideration only, namely, the uniformity of building in the whole neighbourhood. I do not doubt that that may represent an interest, but it is not the whole interest. A man may, it seems to me, well say—“I do not object to tenements in the neighbourhood; I do object to them next door.” I think also that within reasonable limits a man may be allowed to be the best judge of his own interest. Whether the objector Baird could have stopped the erection of the more distant tenements may be doubtful. But, even assuming that he could, I do not think that, if he did not, he thereby forfeited his right to stop them next door.
Tua res agitur paries cum proximus ardet is, I think, good law as well as common sense.
The position of Mrs Roemmele is more difficult. But I come to the same result. An opposite neighbour is not the same as a next-door one; and after all there is, I think, a legitimate interest in conserving the oasis of ground between Cambridge Drive and Kelvinside Gardens, which is as yet unspoiled by tenemental buildings. In the words of Lord Kinloch in
M'Gibbon v. Rankin ,
For these reasons I am of opinion that the judgment of the Dean of Guild is wrong and ought to be reversed.
Lord M'Laren Campbell v. The Clydesdale Banking Company ,
But in that case the action was at the instance of the superior, who was not successful in persuading the Court that he had any interest in the matter other than his interest to maintain his security for his feu-duties. I observe that Lord Cowan, who delivered the leading opinion in the case, states that the whole body of feuars were at one in holding it to be for their interest to depart from the building restriction; in repudiating it as neither conducing to their utility nor to the ornament of their several possessions. His Lordship proceeded to observe that the superiors objections on this head had been disproved, and the judgment proceeded on the want of interest on the part of the superior to enforce the building restriction.
Now I am far from saying that in a question of this nature the consent, express or implied, of every individual feuar is a necessary step to the assertion of the right of one of them to vary to some extent the conditions by which he and his predecessors in title were originally bound. In the case of
Johnstone v. The Walker Trustees (
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that where alterations or variations of the conditions of the feu-right have been permitted, the presumption is not for abandonment but only for relaxation of the conditions of feu, according to the nature of the variations to which the feuars have presumably consented.
When we consider the facts of the present case I think it may be taken that the appellants were tolerant of deviations from the conditions of feu which did not interfere with their personal comfort or convenience. They were not made parties to the Guild Court proceedings under which power was given to put up tenement or flatted houses within the area of the superiority, and apparently they did not consider that they had such an interest as would justify their intervention. Now I think it would be a very inconvenient—not to say inequitable—rule that a feuar who becomes aware of some infraction of building conditions by a feuar from the same superior, but at such a distance from himself, that the infraction causes no inconvenience to him, must either apply for an interdict or be taken to have waived his right to enforce the condition in question with conterminous feuars or disponees. I am putting an extreme case in order to test the argument, because if in the case supposed the feuar does not lose his right to object by reason of tolerance or acquiescence where his comfort is not affected, then it is a question of degree, or rather a question of fact, in each case, whether his tacit assent or
non-repugnantia in one or more cases of deviation from the conditions amounts to an abandonment to all intents of his rights in a question with the community.
In the present case I am not of opinion the abstention from legal proceedings on the part of the appellants, in cases where they did not conceive that their interests were affected, amounts to an abandonment of their rights to enforce the building conditions. I gather from the proof that Mr Baird's interest to enforce the conditions against the respondents is stronger than Mrs Roemmele's interest. But as I am not satisfied that in the case of either of the appellants there has been an abandonment of their contract rights, I think they are
in pari casu in resisting; the present application, and that their appeal should be allowed. I may add that having heard your Lordship's opinion now delivered, I desire to concur in it.
Lord Kinnear
Lord Pearson
