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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 105
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OPINION OF LORD
CARLOWAY
in the cause
LUIGI ROMANO
Pursuer;
against
(First) STANDARD
COMMERCIAL PROPERTY SECURITIES LTD and (Second) ATLAS INVESTMENTS LTD
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Act : Doherty QC,
Delibegovic-Broome; McClure Naismith
Alt : EW Robertson; Semple Fraser LLP
Alt : Martin QC, Williamson; Russel + Aitken LLP
18 July 2008
1. Pleadings and Documents
[1] This
action concerns heritable rights attaching to two tenement buildings at 203-205 and
209-213 Buchanan Street, Glasgow.
These comprise adjacent buildings on the west side of the street. Numbers
203-205 is the more southerly, consisting of four storeys (together with
basement and attic). Numbers 209-213 is of three storeys, with 213 being a
close entrance at the north gable leading through to a back court.
[2] In
1949 both tenements were in commercial use, being "shops, warehouses, offices
and other businesses" using the four entrances at 203, 205, 209 and 213. The
tenements had been owned by the Life Association of Scotland, who had sold them
on in parcels to various different purchasers. All the proprietors agreed that
the "reservations, real burdens, conditions, provisions, limitations,
obligations, servitudes and stipulations" on which their properties were to be
held ought to be expressed in a single Deed of Conditions (6/8 and 7/7 of
process). The first of these conditions is that the certain parts of the two
tenements should be "owned as common property by all the proprietors of
premises in [the] two tenements". These parts include "external and all bearing
walls". The effect of this is to make the proprietors of any part of one
tenement common owners of the external walls of both tenements. The conditions
also provide that:
"(Eighth) To
ensure harmony in the design and appearance externally of the front walls...there
shall not, without the previous consent of a majority in number and
representing at least three quarters of the whole votes..., be executed on [the]
walls or the window casements thereof any work of painting or decorating or the
display of any new business sign or lettering, except the name of the occupant
of the premises on the glass of the windows, and there shall not without the
like consent be allowed on the external walls of the buildings...any painting,
affixing or exhibiting or any form of style of signboard, nameplate, show case
or the like materially more or differing materially from those at present
existing..."
[3] In
1960, the ground floor and basement at 209-213 were owned jointly by Charles Zaccarini,
restaurateur, and John Smith, commission agent. Access to both floors was
obtained from the then single entrance at 209. Architects' plans (6/9, 7/9)
were drawn up for the creation of a restaurant in the basement. The plans show,
in sketch form, the then layout of the ground and basement. The sills of the
ground floor windows, which assume importance in the case, were in a line at
about the same level as the top of the entrance doors (not including the
windows above the doors) to 209 and 213. Windows allowing light into
the basement existed at pavement level. The ground floor windows do not now
exist, but they were intended to survive this initial development.
[4] Mr Zaccarini
and Mr Smith decided to divide the ground floor and basement between them.
They created a new entrance adjacent to, and slightly north of, the existing
one at 209. A disposition dated 29 June and 10 July 1962 from Mr Zaccarini and
Mr Smith (6/7, 7/8) gave the ground floor to Mr Smith. It did so
subject to "the burden of...(Second) the servitude right and privilege" in favour
of the basement property "to attach" to their subjects "a shop front including
fascia which is not to extend across the top of the said new entrance and the
top of which is not to extend above the underside of the existing window sills"
of the ground floor. The disposition gave the basement to Mr Zaccarini
together with the "servitude right and privilege" to attach the shop front and
fascia in the same terms. Of course, there were other owners in common of the
wall over which this servitude was purportedly created, but their titles
remained unchanged.
[5]
A substantial "shop front" was created in terms of the purported servitude for
the Sorrento Restaurant, including a faux tiled roof projection in the
image of an Italian Taverna. This was formed below the ground floor window
sills, with the restaurant name emblazoned below them and upon newly created
basement windows (6/10 and 7/10). There
is no suggestion that there were any objections to this innovation upon the
external wall from any of the common owners. The restaurant closed in 1976.
[6] The
pursuer avers that he owns the two lower floors (i.e. basement and ground) of both
203-205 and 209-213 (see the second article of condescendence). However, it is
accepted that essentially he only owns the basement floors in terms of a 1985
title (Land Certificate No. GLA2735; 6/1 and 7/1), together with the
common property elements of both buildings in terms of the Deed of
Conditions.
[7] By
1989, the ground and basement floors of 209-213 had come to be tenanted by the
same person (Frank Booth and Sons (Saundersfoot) Ltd.), albeit renting
from different landlords, including the pursuer. The entire frontage of the
basement and ground floor premises became integrated by being painted with a
uniform colour and having a single and substantial sign ("M & D Amusement Centre")
fixed below the first floor window sills. The paint did not obscure a false
multiple archway design, which had been created below the ground floor windows
in another attempt to create an Italian ambiance for the former restaurant. The
ground floor windows still survived, although the basement windows were covered
(6/13).
There was no separate signage for
the basement and none below ground floor window sill level, other than the
general paintwork.
[8] The
first defenders acquired title to the ground floor of 209-213, together with
the new entrance, in 2001 (Land Certificate GLA153993; 6/2 and 7/2), and
the common property elements in the Deed of Conditions. The burdens section in
the first defenders' title refers back to the 1962 Disposition and states
that the title is subject to:
"(Three) the servitude right and
privilege in favour of the store subjects forming the basement of the tenement
209 to 213 Buchanan, Glasgow (sic)...to
attach to the said last mentioned subjects a shop front including fascia which
is not to extend across the top of the said new entrance and the top of which
is not to extend above the underside of the existing window sills pertaining to
[the ground floor]".
As already noted, this provision is
not found in the titles of the other common owners, notably those of the second
defenders, who own the ground to attic floors of 203-205 (Land Certificates:
GLA139859 (6/3 and 7/3); GLA157626 (6/4 and 7/4); GLA133804 (6/5 and 7/5);
and GLA154886 (6/6 and 7/6)).
[9] In
the 1990s, the frontage underwent further change, with radical alterations to
the location and shape of the ground floor windows, the addition of lamps and
the removal of the paint (7/13). But there was still no separate signage
for the basement.
Again, there is no suggestion that
any of the common owners raised any objection to these changes. The present
condition of the frontage is radically different from that anticipated by the
basement and ground floor proprietors when dividing their property in 1962.
There is no shop front or fascia below where the ground floor window sills used
to be (at just above the mid level of the present windows). Such signage as
there is remains below the first floor windows and above where the ground floor
windows used to be located.
[10] The pursuer avers that he has entered into discussions with a
view to selling his interest to the second defenders. There have been talks
between the defenders about the first defenders selling their interest to the
second defenders. In 2003 Glasgow
City Council determined that the second defenders ought to be appointed as preferred
developers of both tenements and the surrounding area (see Standard Commercial Property Securities v Glasgow City Council 2007 SC (HL) 33). In November 2007
the Council made a Compulsory Purchase Order (13/2) in respect of the
tenements, thus prompting valuations of each proprietor's interest.
[11] In these circumstances, the pursuer seeks a declarator that he has:
"A heritable and irredeemable
right to attach to the subjects known as the ground or upper ground floor of
the tenement 209 Buchanan Street, Glasgow...a
shop front, including fascia"
in terms of the 1962 disposition. The pursuer has been careful not to define
the nature of the right in the conclusion. However, he pleads it to be one of
servitude. Since this right is not reflected in the titles of the second
defenders, the pursuer pleads that any defect in that regard has been cured by
the operation of prescription in terms of section 3 of the Prescription
and Limitation (Scotland) Act 1973 (c 52).
His averments are that the right described in the 1962 disposition
has been used openly since its creation (tenth article) and that the tenant of
the ground and basement floors is using that right to attach a shop front to
the ground floor in terms of the servitude.
The pursuer departed from a number of other cases averred during the
course of submissions (infra).
2. Submissions
(a) FIRST DEFENDERS
[12] The first defenders moved that
their first plea-in-law of no title and interest to sue be sustained. There was
a CPO procedure underway and the Lands Tribunal could deal with the issue of
valuing the parties' interests, including a determination of whether a
servitude right existed. There was therefore no real live issue for the court
to determine. No action had been taken by the defenders to prejudice the
pursuer's rights (Scottish Old People's
Welfare Council, Petnrs 1987 SLT 179, Lord Clyde at 186
quoting Swanson v Manson 1907 SC 426, Lord Ardwall
(Ordinary) at 429; Agnew v Laughlan 1948 SC 656, Lord Mackintosh
at 659; Shaw v Strathclyde Regional Council 1988 SLT 313, Lord Cullen
at 316; Walker v City of Aberdeen Council 1998 SLT 427, Lord Macfadyen
at 432). Alternatively, despite the absence of a plea, the action should be
dismissed as premature (Caledonian
Railway Co v Glasgow Corporation
(1905) 7F 1020, Lord President (Dunedin) at 1033; 1907 SC (HL) 7).
[13] The first defenders' second plea (to the relevancy of the
pursuer's averments) ought to be sustained. The case based upon the existence
of a servitude was irrelevant. There was no servitude of "signage" in the Law
of Scotland (Alexander v Butchart (1875) 3 R 156,
Lord Gifford at 160; Meldelssohn v The Wee Pub Co,
1991 GWD 26-1518; Scottish Law Commission Discussion Paper No 106
paras 1.17-18; Gordon : Land Law paras 24-20; Rennie : Land Tenure and
Tenements Legislation
(2nd ed) 188-9; Cusine
& Paisley : Servitudes and Rights of Way paras 1.28-30;
McArly
v French's Trs (1883) 10 R 574,
Lord Young at 579-80; Lord Justice-Clerk (Moncrieff) at 580;
Rankine : Landownership (4th ed) 135). A pro-indiviso proprietor could not create a
servitude right on his own (Fearnan
Partnership v Grindlay 1992 SC (HL) 38,
Lord Justice-Clerk (Ross) at 42).
[14] The pursuer's case based on prescription was irrelevant. The pursuer required to aver that the use of
the purported servitude was not only continuous and uninterrupted but that it
was made in assertion of its existence as a right (Macnab v Munro Ferguson
(1890) 17 R 397, Lord Justice-Clerk (Macdonald) at 400). Mere tolerance was not enough (McInroy v Duke of Athole (1891) 18 R (HL) 46, Lord Watson
at 48).
(b)
SECOND DEFENDERS
[15] The second defenders moved that
their first plea-in-law (relevancy) be sustained. The arguments for the first
defenders were adopted. The signage existing at 209 was above the level of
the purported servitude. A single pro-indiviso proprietor could not create a
servitude over the common property (Fearnan
Partnership v Grindlay (supra),
L J-C (supra), Lord Dunpark at 48; Lord Murray at 54). The
pursuer's description of the "servient tenement" in his pleadings related to
the first defenders' premises, yet the wall over which the servitude was
purportedly created was owned in common by the second defenders.
[16] The second defenders advanced an argument on the pursuer's lack
of interest because of the CPO process, albeit that they had no plea-in-law to
support this. The argument was presented
as one of relevancy. The pursuer had
neither sought to assert the right of servitude contended for, nor had he been
prevented from doing so by the defenders. There was therefore no live
issue. If the purpose of seeking the
declarator related to the value of the pursuer's interest, then the Lands Tribunal
would determine that.
[17] There were insufficient averments of prescription. The shop
front at present consisted of plain walls with three windows. There had been no
exercise of the right upon which prescription could operate.
(c) PURSUER
[18] The pursuer's motion was to
repel the first defenders' first plea-in-law but quoad ultra to allow a
proof before answer, leaving his own plea to the relevancy of the defenders'
pleadings (which he did not argue) open. He departed from the contention on the
pleadings that the right sought might be a real burden, standing its absence
from the titles of the second defenders. He accepted the irrelevance,
therefore, of the averments in the final sentence of the fourth article of
condescendence and those in the eleventh article. He also departed from his
fourth plea-in-law and the relative averments of personal bar on the part of
the first defenders contained in the ninth article from "Having bought..." to
"...reverting to separate use".
[19] The pursuer had set forth a clear interest founded upon a
heritable right which both defenders disputed.
The determination of the right was neither academic or hypothetical. It
had real consequences. There was no need for a person claiming a heritable
right to show prejudicial actings of the type referred to in the judicial
review cases relied upon by the first defenders. The case was quite different
from Caledonian Railway Co v Glasgow Corporation (supra), which did not involve a claim to
a heritable right. The fact that there was now a CPO did not deprive the
pursuer of an interest to have his heritable right declared. The CPO may or may not be proceeded with.
[20] If the servitude right claimed was not one capable of being
created under Scots law, then that was an end of the pursuer's case. There was
no clear authority but such indications as there were pointed persuasively to
the recognition of such a servitude right (Dyce
v Hay (1849) 11 D 1266,
Lord Cockburn at 1283; Moncrieff v Jamieson 2008 SC (HL) 1,
Lord Hope of Craighead at paras [21] - [22], Lord Scott of
Foscote at [45] and [47], Lord Rodger of Earlsferry at [72], [75] and
[97]; Lord Neuberger of Abbotsbury at [140]; Cusine and Paisley (supra) paras 3.22, 3.45 and 3.64;
Gordon (supra) para 24-23). There was no reason in principle why any
right limiting the use of land, which was of benefit to neighbouring land,
could not be capable of being created as a servitude. The fact that it was not
a recognised servitude ought not to be a bar. In the application of principle,
all the judges in Moncrieff v Jamieson (supra) were prepared to hold that there could be a servitude of car
parking even if it was not one listed in the textbooks. If it could be an
ancillary right then it could exist on its own.
The concerns in Alexander v Butchart (supra) were not over whether the right claimed was a known
servitude. McArly v French's Trs (supra) proceeded on the basis that the defender had acquired a
right to erect a sign as part of his subjects. The right of erecting a sign on
a servient tenement had been recognised in Cunningham
v Stewart (1888) 4 Sh Ct Rep 255
(Sheriff Hall at 257-258). It also existed as an "easement" in England
(Moody v Steggles (1879) 12 Ch Div 261, Fry J at
265).
[21] The 1962 disposition had created the right, albeit that it
could not do so validly since the other common owners had not been involved.
The principle derived by the defenders from Fearnan
Partnership v Grindlay (supra) was accepted. But that was not an end to the matter as the
defect could be cured by exercise of the right for the prescriptive period.
This did not appear to be disputed. For a deed to be capable of founding a
right, it did not require to be valid, simply not ex facie invalid (Johnston: Prescription and Limitation para 15.30;
Burns: Conveyancing Practice (4th ed) 201; Cooper Scott v Gill Scott
1924 SC 309, Lord Justice-Clerk (Alness) at 323, Lord Anderson
at 343-4; Napier: Law of Prescription 162). The pursuers had made out a
relevant case of possession for the requisite twenty years. Whether the facts
demonstrated a possession as of right or mere tolerance was a matter for
proof.
3. Decision
[22] There is little difficulty
in holding that the pursuer has both title and interest to pursue this action.
His claim is based upon the first defenders' Land Certificate and upon the 1962
disposition to his predecessor in title. It is to the effect that he has a
servitude right to erect a shop frontage on the external wall of the tenement
at 209-213; specifically over part of
the ground floor wall owned in common by all the proprietors of the two
tenements. That right is being denied by the defenders. Notwithstanding the existence of a single
tenant in both ground floor and basement, the pursuer has a title to pursue the
claim. His interest lies in the potential commercial value of the right denied.
The existence of the right and its value may, or may not, be determined by the
Lands Tribunal in due course, but that does not undermine the existence of both
title and interest now. Cases in the field of administrative law and judicial
review are of little assistance in determining title and interest in a
litigation concerning heritable right. The case referred to upon prematurity (Caledonian Railway Co v Glasgow Corporation (Supra)) involved
different circumstances, where the pursuers were seeking to reduce
registrations under appeal to the Sheriff. The first defenders' first
plea-in-law will accordingly be repelled.
[23] The pursuer perils his case upon a narrow base; that of the
existence of his right as a servitude. The servitude contended for is one of
"shop front, including fascia" upon a section of the ground floor external,
street facing, wall. The critical feature of servitudes, as distinct from other
real rights, within the feudal system of tenure as existed at the time of the
relevant conveyances and related deeds is that they could be constituted
without being referred to in any writing (cf s 75 of the Title Conditions
(Scotland) Act 2003 (asp 9)). They derive from the Roman Law as
interpreted by the Institutional Writers and applied over time by the Courts.
Because they do not necessarily appear in title deeds, a prudent principle
developed whereby, in order to be constituted, they had to be of a known
type. This is the principle stated
succinctly by Lord Gifford in
Alexander
v Butchart (supra at 160).
[24] Lord Gifford's remarks were obiter, since the defender's plea did not rest upon servitude. Rather he contended that his wooden shop
sign, which projected up into external wall of the upstairs flat, ought to
remain in place as an implied grant in the disposition of the shop and its
"parts and pertinents" "as presently occupied". The Lord Ordinary (Lord Craighill)
was not impressed with that argument because (p 157) the "use of the
signboard in dispute is not a necessary and natural consequence of the shop",
given that a smaller sign affecting only the defender's frontage could have
been used. The three judges of the Second Division present all agreed. Lord Gifford
added his dictum. Recent commentators (Professors Gordon
(Gordon (supra) at 24-20) and Cusine
(Cusine & Paisley (supra at
3.01)) have founded upon it in stressing the long held view that, for a
servitude to be validly constituted, it requires to be one known to the law or
at least similar in nature. They commonly refer to Professor Bell
(Principles 979) (Paisley & Cusine (supra)
at 2.87), who explained the reason, already noted, that the principle is to
prevent purchasers from being taken by surprise by a claim of some unusual and
unwritten burden affecting their property (see also Rankine : Landownership 4th
ed 418). [25] There is no
recognised servitude of signage (or shop front). This is no doubt because it is
seldom, if ever, necessary to advertise a shop or restaurant upon another's
property. In McArly v French (supra), it was determined that a shop sign, which extended above
the centre line of the joists of ground and first floor properties, could not
be removed at the instance of the owner of the upper flat. However, that was not because of any right of
servitude but because, contrary to the result in Alexander v Butchart (supra), the Court held that the sign
board was part and pertinent of the ground floor shop and formed no
encroachment, as was contended for (see interlocutor of the Court at 580).
Despite Lord Young's statement (at 579, with which Lord Rutherford Clark
agreed) that prescription was not being relied upon, the interlocutor of the
Court makes it clear that it did indeed form a basis of the decision.
[26] In Cunningham v Stewart (supra), the Sheriff did (with some hesitation) hold that the owner
of the Star Inn had a right to affix a sign to the wall of the defender's
property. However, he did so not on the basis that there was a discrete
servitude right to do so, but because it was a right ancillary to an existing
servitude of access and light along a close leading to the door of the Inn.
It seems likely that, but for that servitude, the Sheriff would have reached
the opposite result. That opposite result was reached by the Sheriff in Mendelssohn v The Wee Pub Co (supra,
unreported) in which the defenders had erected neon and hardboard signs
advertising their public house (called "Chancers") on the pursuers' wall at or
near to the mouth of a traditional close on the High
Street, Edinburgh. Having
neatly summarised the origins of the law of servitudes and referred to the
known categories of the urban type, the Sheriff referred to the dicta of Lord Ardmillan in Patrick v Napier (1867) 5 M 683 (at 709), which acknowledged the
possibility of introducing new praedial (real) servitudes having regard to the
"habits and requirements of life, varying and extending with advancing
civilisation". She continued:
"Shop signs would seem to have
been known in classical times. They were certainly known in the Old Town of
Edinburgh where [the close] is situated and are, I think, no new response to
the needs of a changing society. I have concluded that had such a servitude
right existed, as is claimed by the defender[s] in this case, it would have
been recognised by the authorities centuries ago".
It is impossible to fault the
Sheriff's reasoning, which is equally applicable to the servitude right claimed
here. In short there is no servitude of "shop front", nor is it a right akin to
any known servitude.
[27] It is true to recollect that Scots law might have gone down a
different path from the one described and explained by Professor Bell. It
might have developed a more extensive range of urban servitudes. In Dyce v Hay (supra at 1283), Lord Cockburn expressed a
desire that this is what should occur.
He based his view on the wide and well known passage from Stair
(Institutions 2.7.9), where it is said that "the praedial, or country-(sic)servitudes...may be as manifold as the
free use of the one may be restrained or impaired for the profit or pleasure of
the other". But the other judges took the more traditional approach following
upon Professor Bell's reasoning (eg
Lord Justice-Clerk (Hope)
at 1276, Lord Medwyn (specifically) at 1279, Lord Moncrieff 1281-2;
see also on Stair, Cusine & Paisley (supra)
at 1.30). It is that approach, recognising the need for a servitude to be at
least akin to a known type, that has for many years been followed, even if the
list of servitudes is not closed and may require extension as society advances.
[28] In Moncrieff v Jamieson (supra) Lord Scott considered the Scots law on servitudes to be
the same as the common law of "easements" (para [45], cf Lord Neuberger at
[136]). He expressed the view that any right of limited use may be capable of
being created as "a servitudal right in
rem" (para 47). In what must be assumed to be a careful use of language, he
was, presumably, not saying that any such use could thereby become a
"servitude", as that term has hitherto been known in Scots law, distinct from
an ordinary real burden or condition. Moncrieff
v Jamieson (supra) is certainly not authority for such a wide proposition.
There may be authority in England
that there is an easement of public house signage (Moody v Steggles (supra)),
but without a qualified understanding of English property law, this court
cannot express a view on the significance of that to Scots law. So far as
domestic law is concerned the pursuer's claim to have a servitude right must
fail, since it is of a type neither known to the law nor akin to an existing
category.
[29] If there were a servitude of "shop front", since it does not appear
in the titles of the second defenders, a question remains whether it could have
been validly constituted by the operation of the twenty year prescriptive
period. In that context, it is perhaps of little general significance, but for
the pleadings, that the right is expressed in the 1962 disposition. That could,
at best, only give the pursuer a right against the first defenders. It could
not per se create a right affecting
the second defenders as pro indiviso
owners of the external wall (see eg Fearnan
Partnership v Grindlay (supra),
Lord Justice-Clerk (Ross)
at 42-3). The servitude would either be constituted by its use during the
prescriptive period or not, whether or not an ex facie valid title existed.
[30] There is, however, an ex
facie valid title dated 1962 and the pursuer pleads this date for the
commencement of the requisite period of prescription. The issue is whether
there are averments of an open and peaceful use for a continuous period of
twenty years immediately, or at least at some point, thereafter. The use must
be made in direct assertion of the servitude right (Macnab v Munro Ferguson (supra); McInroy v Duke of Athole
McInroy v Duke of Athole (supra)).
That right, as purportedly created by the 1962 disposition, is only in
relation to a very small piece of external wall above the mid-line of the floor
dividing the ground floor and basement and below the line of the original
ground floor window sills. There are no averments that there was ever a shop
front, or fascia, exclusively in that area. Rather, at best for the pursuer,
there was a shop front covering the whole area below the sills, most of which
was therefore not covered by the purported servitude right at all. On the
averments, as explained by the agreed material in relation to the development
of the building over the years, there was no assertion of a right relating
specifically to the servitude referred to in the 1962 deed. On that basis,
the pursuer's case relying upon prescription following on the deed is
irrelevant.
[31] It may have been possible to plead a relevant case of
prescriptive servitude relating to the whole frontage below the ground floor
window sills, were the pursuer to have sufficient averments of the use of that
frontage for the prescriptive period. The problem is that he does not have
averments of the use of this frontage for a period of twenty years. Assuming
that this servitude came into being in 1962, with the creation of the
Sorrento Restaurant, the pursuer may be able to prove that he used the
external common wall as a frontage for some fourteen years thereafter until the
admitted closure of the restaurant in 1976. There are no specific averments about any
continued use of the external wall specific to the basement and below the sills
thereafter. Such averments as there are concerning the use of the basement
after the closure of the restaurant reveal that the basement and ground floors
were used together. From the photographs agreed by the parties as revealing the
state of the building in the 1980s and 1990s, there was no shop front or fascia
applicable to the basement at all. There was a front relating to the combined
premises, but all that happened with the wall below the ground floor window sills
was that it was painted a colour uniform with that of the ground floor
generally. Even that changed with the alterations to the windows themselves. In
short there are no specific averments relating to the use of the wall below the
sills as a shop front for the basement after 1976. In these circumstances, any case based upon
the assertion of a prescriptive servitude right to use that part of the
external wall as a shop front for the basement is doomed to failure.
[32] I will accordingly: (i) of consent, repel the pursuer's fourth
plea-in-law and exclude from probation the pursuer's averments (a) from
"Separately...." To "...Condescendence" at p 16 D of the Closed Record; (b)
from "Having bought..." to "...separate use" at 28 E to 29 B; and (c) in
the eleventh article of condescendence; (ii) repel the first defenders' first
plea-in-law; (iii) sustain the first defenders' second plea-in-law and the
second defenders' first plea-in-law; and (iv) dismiss the action.
