Scottish Court of Session Decisions

VOL. xxiv.] COURT OF SESSION, &c. 1061

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

Peter Johnston, Pursuer (Reclaimer).-Balfour-Rankine- Wilton.

The Walker Trustees, Defenders (Respondents).-Johnston-Cook

Miss Emma Hofford and Others, Defenders (Respondents).-

Johnston-Cook.

Superior and Vassal-Restrictions imposed by common superior-Right of one vassal to enforce restrictions against another-Jus quœsitum tertio.- A feu-charter granted by the superior of all the feus in a street provided " that as the tenement built on said area has been erected in strict conformity to the plan and elevation adopted for" the street " (and the plan and elevation of the said tenement now subscribed by " the superior and feuar " as relative hereto) ... it shall not be in the power of the said " feuar " or his foresaids to convert the said dwelling-house and others hereby disponed into a shop or shops or warerooms for the sale of goods or merchandise of any description, but that they shall be bound to use the same as a dwelling-house only."

The charter also contained provisions relative to the use of a pleasure-ground in front of the feus, and to the formation and maintenance of sewers, inferring community of interest and obligation among the feuars with regard thereto, and also a provision that the superior should have power to alter any of the proposed plans and streets and lanes upon the ground belonging to him, and not built upon at the date of granting the respective feu-rights thereof. The provisions were declared to be real burdens, and were appointed to be inserted in all future investitures.

Held, in a question between the feuar and other feuars in the street, whose charters contained similar provisions and references to the feuing-

1062 CASES DECIDED IN THE [fourth series.

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

1st Division.

Ld. Kyllachy.

plan, that the reference to a common plan and scheme of building in the feu-charter was sufficient to shew that the restrictions were imposed and accepted for the benefit not merely of the superior, but also of the body of feuars, and that the other feuars were entitled to enforce them.

Property-Superior and Vassal-Restrictions imposed in feu-charter- Acquiescence.-All the feuars in a street held of a common superior under titles which prohibited them from making any deviation from the plan and elevation adopted for the street, and from converting the subjects feued by them into shops or wareroorns for the sale of goods, and bound them, to use their subjects as dwelling-houses only.

In 1896 the proprietor of the sunk and street flats of the corner tenement raised an action to have it declared that the clauses of restriction had been departed from and could no longer be enforced, and that in any view he was not bound to use his subjects as a dwelling-house only.

It was proved (1) that after the houses in the street had been erected in conformity with the plan dormer windows had been-from time to time- added to twelve of them, including the corner tenement, and a complete storey to three of them; (2) with regard to the pursuer's own subjects, that these had, without objection on the part of anyone, been used from 1871 to 1884 as writing chambers by a firm of law-agents ; and (3) that these subjects had been used from 1884 onwards as a shop or wareroom for the sale of millinery, costumes, and other goods, but only under a strong protest and threatened action by the co-feuars with the approval of the superior, followed by a letter from the feuar agreeing that their abstention from proceedings should not be construed into consent or approval. The Court, holding that the restrictions were still binding, assoilzied the defenders.

Stewart v. Bunten, July 20, 1878, 5 R. 1108, followed.

By feu-charter, dated May 1859, Miss Mary Walker, of Coates, disponed to and in favour of George John Murray, and his heirs and assignees whomsoever, "All and Whole that dwelling-house, marked 22, in Coates Crescent, Edinburgh, and consisting of the street and sunk flats of the corner tenement erected at the south end of Manor Place and west end of Coates Crescent, on that area or piece of ground, consisting of 51 feet 6 inches or thereby, in front to Coates Crescent ... as also right in common with the whole other feuars from me or my predecessors or successors, of areas or stances in Coates Crescent, to the space or area of pleasure-ground in front of the street way of said crescent, now enclosed with a parapet wall and iron railing, and that as a common property of the feuars in the said crescent . . . But it is hereby expressly provided and declared that the foresaid dwelling-house and others, with the privileges and pertinents thereof, are hereby disponed . . . under the burden of a proportional part of the expense, along with the other feuars, of keeping the common sewer, and the causeway, and the surface drains and gratings, in perpetual repair . . . and it is also provided and declared that the foresaid area or pleasure-ground in front of the said crescent shall be used allenarly for pleasure or other accommodation of the several feuars and their families, but shall nowise be converted into a common thoroughfare, and that the said space, with the parapet-walls, railings, entries, gravel walks, trees, and grass ground, shall be made, preserved, and kept in order and repair at the common and rateable expense of the whole feuars." It was further declared that the sewer should remain the property of the superior for the benefit of all concerned.

The deed further expressly provided and declared,-

" That as the tenement built on the said area has been erected in strict conformity to the plan and elevation adopted for Coates Crescent and Manor

VOL. xxiv.] COURT OF SESSION, &c. 1063

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

Place, and the plan and elevation of the said tenement now subscribed by me and the said George John Murray as relative hereto, with balconies and iron railings on both fronts thereof, conform to the pattern adopted for said crescent and place, it shall not be in the power of the said George John Murray or his foresaids to convert the said dwelling-house and others hereby disponed into a shop or shops or warerooms for the sale of goods or merchandise of any description, but that they shall be bound to use the same as a dwelling-house only; and, further, that it shall not be in the power of my said dis-ponee or his foresaids to erect or make common stairs or separate tenements within the said house, nor to make any deviation from, or alteration upon, the plans and elevations and pattern balconies and iron railings before mentioned . . . And it is hereby expressly provided and declared that I and my foresaids shall have full power and liberty to vary or alter any of the proposed plans and streets or lanes upon the ground belonging to me, and not already built upon or feued, or as I or they shall think fit ... which whole burdens, conditions, and provisions herein contained are hereby declared to be real burdens affecting the said subjects before disponed, and are as such appointed to be verbatim engrossed or validly referred to in all the future charters and investitures and writs whatsoever of the said subjects."

In April 1896 Peter Johnston, who carried on business as a coach-builder in Edinburgh, and who had acquired the subjects No. 22 Coates Crescent, presented an application to the Dean of Guild for authority to make certain alterations for the purpose of enabling him to use the premises as a carriage saloon. The application having been opposed, proceedings were sisted to enable Mr Johnston to bring the present action,

Accordingly, on 28th May 1896, Mr Johnston raised the present action against (1) the Walker Trustees, the superiors; (2) the Misses Hofford, and the other proprietors of flats above the pursuer's premises; and (3) the Misses Cook, proprietors of No. 21 Coates Crescent.

The conclusions of the action were for declarator that "notwith-standing the terms of" the feu-charter above referred to, "the pursuer, as heritable proprietor of the subjects No. 22 Coates Crescent, Edinburgh, with the parts and pertinents thereof, thereby feued, in the first place is not bound to use the same as a dwelling-house only, and in the second place is entitled to possess and occupy the same as a shop or wareroom, or to convert the same into a shop or wareroom, and to possess and occupy them as such; and it should also be found and declared by decree of our said Lords that any conditions, restrictions, or prohibitions in the said feu-charter limiting the pursuer in his use of the said subjects as a dwelling-house only, or preventing him from possessing and occupying the same as a shop or wareroom, converting the same into a shop or wareroom, and possessing and occupying them as such, have been departed from, and that the defenders and the said other parties, or any one of them, have no right or title to enforce the said conditions, restrictions, or prohibitions against the pursuer."

The pursuer, after setting forth the terms of his feu-charter, averred that "notwithstanding the said provision and declaration, the subjects belonging to the pursuer have wholly ceased for many years back to be used for residential purposes." That from 1871 to 1884 the pursuer's property had been occupied as writing chambers

1064 CASES DECIDED IN THE [fourth series.

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

by a firm of Writers to the Signet, and that none of the partners had resided there, and that no objection had been taken by the superiors or the other proprietors; that in 1884 the pursuer's predecessor, John Aitken, had acquired the subjects, and had since occupied them as a millinery shop or warehouse without objection till Whitsunday 1896, when the pursuer got possession. Further, that the superiors had consented to or permitted material deviations from the plans by allowing dormer windows to be erected on the roofs of various houses mentioned, and by allowing storeys to be added to some of the houses, and that the other proprietors had also acquiesced.

The pursuer pleaded ;-(1) The restrictions condescended upon in the feu-charter referred to having been departed from by the consent or acquiescence of all parties having an interest in the enforcement thereof, the pursuer is entitled to decree of declarator as concluded for, with expenses. (2) The defenders, the Walker Trustees, as superiors, having acquiesced in the occupation and use of the said subjects as condescended upon, are now barred by personal exception from insisting upon compliance by the pursuer with the said restrictions, and separatim, having now no interest to insist upon the preservation of the said restrictions, the pursuer quoad them is entitled to decree of declarator, with expenses. (3) The said defenders having, as condescended upon, consented to or permitted material deviations from and alterations upon the general plan and elevation referred to in the said feu-charter, are not now entitled to enforce observance of the relative restrictions as to use or conversion in the pursuer's title. (4) The defenders, proprietors of subjects in the same tenement as the pursuer's property, either as having no title to insist upon the pursuer's compliance with the said restrictions, or, if having such a title, as being now barred from maintaining the same by their acquiescence in the conversion of the said subjects, have no right to resist the decree of declarator craved by the pursuer. (5) The proprietors of adjoining properties having no jus quœsitum in the enforcement of the said restrictions against the pursuer, and even if they had such a right, the same having been lost by their acquiescence in the said conversion, or in any event by their failure to take any steps in vindication of such right, the pursuer quoad them is entitled to decree of declarator as craved. (6) In any event the whole of the defenders are barred from objecting to the pursuer's using the said subjects as an office, and he is entitled to decree of declarator in terms of the first alternative of the leading conclusion of the summons.

Defences were lodged for the Walker Trustees, the superiors, the Misses Hofford, and the Misses Cook.

The Walker Trustees, the superiors, pleaded;-(3) By the terms of his titles derived from these defenders, the pursuer is prohibited from making the alterations he proposes upon his property, and from converting it to and occupying it as a carriage showroom. (4) The alteration on and occupation of his property proposed by the pursuer being in violation of the terms of his titles, and these defenders never having acquiesced in the abandonment on the part of their vassals of the conditions and restrictions contained in their feu-charters, are entitled to absolvitor.

The other defenders pleaded;-(3) These defenders, in virtue of their titles and in virtue of the conditions and restrictions contained in the titles of the pursuer and their other co-feuars under the Walker Trustees, are entitled to insist on the fulfilment by the pursuer of the

VOL. xxiv.] COURT OF SESSION, &c. 1065

No. 18,7:

July 10, 1897.

Johnston v. The Walker Trustees.

conditions and restrictions in his charter. (4) The right to insist upon such fulfilment never having been abandoned by these defenders or their predecessors in title, and there never having been any acquiescence on their part in any alleged deviation from said con-ditions and restrictions, at all events as regards the occupation and use of the subjects, these defenders are entitled to absolvitor.

A proof was allowed. The parties subsequently lodged a joint minute of admissions and renounced probation.

The following statement is taken from the joint minute:.-The tenement, of which the pursuer's property formed part, was built about 1825, but no charter was granted until the feu-charter of 14th May 1859. The defenders other than the Walker Trustees were duly vested in their respective properties, and held of the same superiors as the pursuer. The titles of the pursuer, of the defenders Misses Cook, and of the other proprietors in Coates Crescent of their respective properties therein, contained clauses of prohibition against the use thereof otherwise than as dwelling-houses only, and against making any deviation or alteration upon the plan and elevation adopted for Coates Crescent, and pattern balconies and iron railings in front of such subjects, in terms substantially identical. All such titles also contained provisions relative to the pleasure-ground in Coates Crescent and to the formation and maintenance of the sewers, inferring community of interest and obligation among the feuars with regard thereto. All such titles also contained a clause providing and declaring that the superiors should have power to vary or alter any of the proposed plans and streets and lanes upon the ground belonging to them and not built upon at the time of granting the respective feu-rights thereof. In the feu-charter, dated 11th May 1854, in favour of the author of the defenders Misses Hofford, there was inserted a clause obliging the superiors to observe the prohibitions in reference to the remaining parts of the said tenement of which the' pursuer's property forms part, and to insert the said prohibitions iri the feu-charters of the tenement, or of parts thereof, that might be thereafter granted by them in so far as the same might be applicable thereto. The whole of the areas known as Coates Crescent and Manor Place was built upon at the date of the feu-charter.

From 1871 to 1884 No. 22 Coates Crescent was owned by Messrs Dalgleish & Bell, W.S., and occupied by them as writing chambers. The partners of the firm occupied the subjects during the day as writing chambers, but they did not sleep on the premises. They maintained resident caretakers (a man and his wife), who occupied the basement portion of the subjects, and the defenders the Walker Trustees were aware of, but did not take any steps to prevent, this use of the subjects. No change was made upon the house internally or externally during Messrs Dalgleish & Bell's ownership and occupancy thereof, except that upon the front door, which was kept shut, they placed a brass plate upon which was engraved "Messrs Dalgleish & Bell, W.S."

At or about Whitsunday 1884 John Aitken, the immediate author of the pursuer, acquired the subjects in question from Messrs Dalgleish & Bell, and immediately thereafter began to use the same as a shop or wareroom for the sale of millinery, mantles, costumes, and other goods, which he advertised in the newspapers by the name of "Manor House," and in circulars addressed to residenters in Edinburgh as " Private showrooms for millinery, mantles, and costumes,"

1066 CASES DECIDED IN THE [fourth series.

So. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

Several of the proprietors in Coates Orescent objected to such use of the subjects by John Aitken, and two meetings of such pro-prietors in connection therewith (at the first of which the agent of the superiors was present as representing their interests) were held on 23d December 1884, and 16th January 1885. Thereafter a correspondence took place between Mr Aitken and his agent, Mr Lockhart Thomson, S.S.C., on the one side, and a committee of proprietors in Coates Crescent, and Mr Ralph Richardson, W.S., their agent, on the other, and in respect of this correspondence, and of a letter from Mr Aitken of 16th March 1885, a copy of which was sent to the Walker Trustees, no legal proceedings were then taken.*

The general feuing-plan of Manor Place and Coates Crescent referred to in the titles of the pursuer and of the defenders Misses Cook and Misses Hofford had been lost.

The following deviations or alterations upon the general plan in conformity with which the houses in Manor Place and Coates Crescent were originally erected had been made and existed for many years, viz., three dormer or attic windows had been added to the roof of the tenement of which No. 22 Coates Crescent formed part; two dormer windows had been made in the roofs of the dwelling-houses, Nos, 4, 6, 7, 9, 10, 13, 16, 17, 18, 19, and 20 Coates Crescent; and in the case of the dwelling-houses, Nos. 8, 14, and 15 Coates Crescent, complete storeys had been added to their front elevation, the additional storey of No. 8 consisting wholly of a stone front, and the additional storey of Nos. 14 and 15 consisting chiefly of timber fronts.

The agents of the pursuer were notified previous to his purchase of the subjects by the agents of the superiors, the Walker Trustees, and by the agents of the defenders the Misses Cook, that any intended use of the subjects for trade purposes would be objected to as an infringement of the feu-charter, and the pursuer's agents were also informed that proceedings had not been taken to prevent such occupation during Mr Aitken's time in consequence of the undertaking of 16th March 1885.

The Lord Ordinary (Kyllachy), on 7th January 1897, assoilzied the compearing defenders.†

* " Gentlemen,-I address you as a committee representing the proprietors of houses in Coates Crescent, with reference to the intimated objection to my using my own house, No. 22 Coates Crescent, as a place of business.

" It is certainly not my intention to utilise my property in any way that can be construed into a nuisance, as I have as much interest as any other proprietor in preserving the amenity of the crescent.

" While I am advised that I am acting quite within my rights in using my property as I am now doing, I have bo hesitation in recording that, if the objecting proprietors abstain from pressing their objections so long as I occupy and use the house as I am now doing, I bind and oblige myself that it will not afterwards be pled as acquiescence on their part, and that the respective rights of parties shall in no way be prejudiced thereby. That is to say, it will be quite open to any of the proprietors to adopt whatever proceedings they may be advised to take to have their legal rights determined, without my pleading that their being at present passive be construed into consent or approval."

† " Opinion.- . . . The points which I have to decide are, I think, sufficiently raised in the pleadings, and appear to be these (1) have the co-feuars on a just construction of the titles, a title to enforce the restriction'! (2) have they barred themselves from doing so by what is called acqui-

VOL. xxiv.] COURT OF SESSION, &c. 1067

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

The pursuer reclaimed, and argued;-The superior had no interest ] to enforce the restriction. His only interest was to protect his feu-duty, and it could not be seriously suggested that that would be imperilled. The feuars had no title. It was settled that the fact of the same conditions appearing in feu-charters, derived from a common superior, even when coupled with a substantial interest in their observance, did not confer a right upon any one feuar to enforce them against another.1 There was nothing else in the titles here to confer mutuality of rights and obligations among the feuars, either expressly or by implication.2 There was no obligation by the superior in any of the titles to take the other feuars bound,3 nor had the titles of the feuars a common origin as in the case of Robertson* The superior, on the other hand, had reserved a right to dispense with conformity to the plans, and that was itself sufficient to negative the existence of mutuality among the feuars.5 The defenders the Misses Hofford were not even members of the Coates Crescent community. They belonged to Manor Place, and their title contained no reference at all to the pleasure-grounds. The plan referred to in their title

escence ? (3) have the superiors (whose title is not disputed) so barred themselves ? (4) has the acquiescence by the defenders been such as in any view to bar enforcement of the condition that the premises shall be used 'as a dwelling-house only' ?

"The first of these questions, in the view I take, is not perhaps necessary to the decision of the dispute. For if the superiors have a title and are not barred, the title of the co-feuars is, as regards the actual controversy, immaterial. But the action being a declarator to determine generally the rights of parties, and it being always possible that the superiors and co-feuars may not always, as now, act in concert, I do not see how I can avoid deciding whether, as against the co-feuars, the pursuer is or is not entitled to the declarator which he asks. Now in this view the question raised is, I think, both important and difficult. It stands, I think, thus. There is no doubt that the restriction in controversy is common to all the feus in Coates Crescent,-at least to all the feus held of the Walker Trustees. But the question is, whether there is sufficient evidence deducible from the titles of parties, and in particular from the titles of the pursuer, that the restrictions in controversy were imposed, and accepted as being imposed, for the benefit, not merely of the superiors, but of the body of feuars. That is, I think, according to the judgment in MacRitchie's Trustees v. Hislop, 7 R. 384, the point to be settled.

" Now, it is certain that there are not here present either of the indicia which are instanced by Lord Watson in that case as sufficient for the purpose. The feuars, including the pursuer, do not each of them stipulate with the superiors that the conditions to which they submit shall be imposed upon them all. Neither is this a case where the titles of all the feuars have a common origin, as, e.g., where the entire subject has been feued off to a building company, who are bound to insert in their subfeus or dis-positions identical conditions. The case therefore is not within the category of M'Gibbon v. Manikin, 9 Macph. 423, on the one hand, or of Robertson v. North British Railway Co., 1 R. 1213, on the other. But the question is,

1 Hislop v. MacRitchie's Trustees, Dee. 17, 1879, 7 R. 384, revd. June 23, 1881, 8 R. (H. L.) 95.

2 North British Railway Co. v. Moore, July 1, 1891, 18 R. 1021.

3 M'Gibbon v. Rankin, Jan. 19, 1871, 9 Macph. 423, 43 Scot. Jur. 205,

4 Robertson v. North British Railway Co., July 18, 1874, 1 R, 1213.

5 Turner v. Hamilton, Feb. 21, 1890, 17 R. 494.

1068 CASES DECIDED IN THE [fourth series.

No.; 187.

July 10, 1897.

Johnston v. The Walker Trustees.

was the plan of Manor Place, not of Coates Crescent. Besides, to have the effect contended for by the defenders, a plan must be made part of the contract. It was not enough merely to exhibit it. Here a plan was not referred to in any of the titles to found a stipulation or agreement. In any view, the defenders were barred by acquiescence. The pursuer's property had for years been occupied otherwise than as a dwelling-house, and the defenders had stood by and not interfered. The use of the subjects as writing chambers was just as clear a departure from the restriction as use as a shop. But the use as a shop had also gone on for many years with nothing more than a protest from some of the feuars. Whether the acquiescence amounted to abandonment was a jury question.1 The author of the Misses Hofford had herself made purchases in the shop. There could be no stronger case of acquiescence than that.2 The superior, moreover, had done nothing even in the way of protest, and had therefore released the pursuer, if not the other feuars, from the restriction.3 The deviations from the original design of the buildings was very marked, and the superior could not now intervene.4

after all, as to the sufficiency of evidence-evidence no doubt to be gathered by reasonable implication from the terms of the titles-but still a question of evidence. And what I have here to consider really is, whether, to put the point as put by the Lord Chancellor in MacRitchie's case, there is not here, in the pursuer's title as in the other titles, such a ' reference to a common plan or scheme of building,' as reasonably implies that each feuar consented to be bound not merely to his superiors, but to his co-feuars.

" Now although the point is narrow and difficult, and I am far from confident that I am right in the view which I have come to take, I am disposed to be of opinion that there is in the pursuer's feu-contract, as well as in those of the defenders', a sufficient reference to a common plan and scheme of, building, a reference, that is to say, sufficient to afford the necessary evidence of consent to a mutual servitude. The feuars are not, it is true, taken bound in terms to conform to a common plan or scheme of building. But the clause of restriction which is in question, and which as I have said is common to all the feus, starts in each case with a reference to ' the plan and elevation adopted for Coates Crescent and Manor Place'; and sets out as the reason for the restriction that the tenement (or dwelling-house) built on the area feued has 'been erected in strict conformity' with that plan and elevation. Moreover each feu-contract contains provisions with respect, e.g., to pleasure-ground, sewers, &c., which seem plainly to point to a common scheme of residential building; and also other provisions as to the rights of the superiors over their unbuilt upon ground, which, by implication, seem to restrict the superiors from making or consenting to any change with respect to their ground (like Coates Crescent) already built upon. Altogether the inference is, I think, legitimate and fairly strong that as to elevation and external structure, the restrictions in question were imposed and accepted as for the common benefit; and, if that be once assumed, it is not I think specially difficult to extend the inference to the conditions as to use and occupation, which are introduced in the same clause, and as ancillary (which they fairly are) to the other conditions.

" On the whole, therefore, I am of opinion that the co-feuars have a title to

1 Glover v. Coleman, 1874, L. R., 10 C. P. 108.

2 Sayers v. Collyer, 1884, L. R, 28 Ch. Div. 103, at 107.

3 German v. Chapman, 1877, L. R., 7 Ch. Div. 271.

4 Campbell v. Clydesdale Banking Co., June 19, 1868, 6 Macph. 943, 40 Scot. Jur. 539; Fraser v. Downie, June 22, 1877, 4 R. 942.

VOL. xxiv.] COURT OF SESSION, &c 1069

No, 187.

July 10, 1897.

Johnston v. The Walker Trustees.

Argued for the defenders;-The title of the superior to enforce the restrictions arose ex contractu, and it was not necessary for him to qualify a direct-patrimonial interest.1 The feuars also had a right to enforce them. Building restrictions were presumably inserted for the benefit of the co-feuars. Here the feuars had contracted with reference to, and in reliance on, a common plan or scheme of building. That was sufficient to infer mutuality.2 The right to vary the plan reserved to the superior was of a very restricted nature, and really made for the defenders, for once a dwelling-house was up the superior's right to alter ceased. Then, again, mutuality, both of obligation and of right, was apparent throughout the titles, e.g., the burden of maintaining the sewers, and the right to the pleasure-grounds. The corner tenement was really within the Coates Crescent community. There had been no acquiescence on the part either of the superior or of the feuars. There had been nothing of the nature of rei interventus,3 and no agreement had been entered into. The deviations founded on by the pursuer were not material, and could not be held to infer total abandonment of the restrictions.4 The use as writing chambers was

object to the pursuer's operations, and to resist his obtaining decree in terms of the summons.

"The second and third questions, which turn on the effect of alleged acquiescence, may be taken together; and the acquiescence is said to consist (1) in permitting without objection the erection-contrary to the terms of the titles-of what are called storm windows, in the roofs of certain of the houses in Coates Crescent; (2) in permitting the use and occupation of what is now the pursuer's house for thirteen years as writing chambers, and for twelve years as millinery showrooms.

"With respect to the storm windows, my view may be stated shortly. One of course recognises the doctrine of the cases of Campbell v. Clydesdale Bank, 6 Macph. 943, and Fraser v. Downie, 4 R. 942. That doctrine is, that wherever in a feuing area some building restriction imposed for the general benefit has been generally contravened, and the contravention is past challenge, the restriction so placed in abeyance can no longer be enforced in individual cases either by the superior or co-feuars. But it has never, so far as I know, been held that because one building restriction has, by common consent, been abandoned, that involves an abandonment of all building restrictions, and in particular of other and different restrictions, which are, or may. be, of much greater importance. Indeed, the contrary has been decided more than once-Stewart v. Burden, 5 R. 1108. Accordingly, while it may be that the pursuer, if he owned the roof of this tenement, could, if he chose, throw out storm windows like his neighbours, I cannot hold that acquiescence in a contravention of that sort by some of the neighbours bars the defenders, or any of them, from now objecting to a contravention of a quite different kind, viz., the conversion of the pursuer's dwelling-house into a shop or warehouse.

" With respect again to the use and occupation of the pursuer's own premises,-which occupation is said to have been permitted for twelve years -there appear to be several difficulties in the pursuer's way. In the first

1 Magistrates of Edinburgh v. Macfarlane, Dec. 2, 1857, 20 D. 156, 30 Scot. Jur. 86; Earl of Zetland v. Hislop, June 12, 1882, 9 R. (H. L.) 40, at 47.

2 Hislop v. MacRitchie's Trustees, Dec, 17, 1879, 7 R. 384, revd. June 23, 1881, 8 R. (H. L.) 95.

3 Muirhead v. Glasgow Highland Society, Jan. 15, 1864, 2 Macph. 420, 36 Scot. Jur. 201.

4 Stewart v. Bunten, July 20, 1878, 5 R, 1108.

1070 CASES DECIDED IN THE [fourth series.

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

of a wholly different character from use as a shop, and had not necessitated structural alterations of any sort. The use as a shop had been vigorously objected to, and the rights of the feuars safeguarded by the letter of 16th March 1885.

At advising,-

Lord Adam .-The pursuer is proprietor of the house No. 22 Coates Crescent. The original feu-charter granted by Miss Walker of Coates in favour of his predecessor in title, George John Murray, which is dated in May 1859, contains a clause in the following terms :-

" It is hereby expressly provided and declared, that as the tenement built on the said area has been erected in strict conformity to the plan and elevation adopted for Coates Crescent and Manor Place, and the plan and elevation of said tenement now subscribed by me and the said George John Murray as relative hereto, with balconies and iron railings on both fronts thereof, conform to the pattern adopted for said crescent and place, it shall not be in the power of the said George John Murray or his foresaids to convert the said dwelling-house

place, it is difficult to see how acquiescence-mere acquiescence-can ever go further than to bar challenge of the thing acquiesced in. It may be true that structures erected, or structural alterations made in breach of building restrictions, in the knowledge of, and without objection by, those having right to object, cannot after completion be pulled down. But the mere use of a dwelling-house in a manner contrary to the title, however long permitted in the past, cannot, as it seems to me, have any efficacy as to the future.-See Carron Go. v. Henderson's Trustees, 23 R. 1042. In the next place, even if this were otherwise, it does not seem reasonable that acquiescence in the use of a dwelling-house, say for writing chambers, or even for millinery showrooms-should be held to imply consent to the use of the premises say for a butcher's shop or even for a coachbuilder's saloon or wareroom. The difference is considerable, and is marked, if by nothing else, by the avowed necessity in the present case of extensive-although internal -structural alterations. Finally, and in the third place, it has to be considered whether, at least as between the pursuer and the co-feuars, it is not conclusive that when Mr Aitken, the pursuer's author, began to use this house as a millinery establishment, the proprietors in the Crescent intervened and obtained from Mr Aitken the letter of 16th March 1885, No. 11 of process. I confess I do not well see how in the face of that letter, and the correspondence which then passed, the pursuer can plead acquiescence in his author's contravention. It may be that as between Mr Aitken and the superiors there was no contract. It may even be-though I do not think so-that as between him and the co-feuars the letter was not so accepted as to form a concluded contract. But the fact remains that Mr Aitken's use of the premises was not acquiesced in, but objected to ; and that in order to prevent proceedings he wrote and delivered to a committee, who in fact represented both the superiors and the body of feuars, a letter by which he undertook that if he was not disturbed he would not afterwards found on the committee's inaction. I do not, as I have said, see how in these circumstances Mr Aitken's possession can affect the case; and with regard to the possession of Messrs Dalgleish & Bell who occupied the house as writing chambers, I think it was hardly contended that their use of the premises for that purpose could support the pursuer's leading and main conclusions.

" This however brings one to consider the last question in the case, that viz., raised by the pursuer's alternative conclusion to the effect that he is at least not bound in future to use the house 'as a dwelling-house only.' His

VOL. xxiv.] COURT OF SESSION, &c. 1071

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

and others hereby disponed into a shop or shops or warerooms for the sale of goods or merchandise of any description, but that they shall be bound to. use the same as a dwelling-house only."

The pursuer has brought the present action to have it found and declared that notwithstanding the terms of the foresaid charter he is not bound to use the same as a dwelling-house only, and is entitled to possess or occupy the same as a shop or wareroom, or to convert the same into a shop or ware-room, and to occupy them as such; and farther, that it should be found and declared that the foresaid restrictions have been departed from, and that the defenders have no right or title to enforce the same.

The parties called as defenders are the superiors, the Walker Trustees, and certain adjoining proprietors, of whom the Misses Hofford are proprietors of an upper flat of the same tenement of which the pursuer's house forms the street and ground flats, and the Misses Cook, the proprietors of the adjoining house in Coates Crescent.

It was not maintained to us that the restrictions in question were in themselves illegal and incapable of being enforced, but it was maintained that the superiors had lost their right to enforce them in consequence of certain proceedings which I shall afterwards have to consider.

As regards the adjoining proprietors, it was maintained that they never had any title to enforce these restrictions, and that if they had had, they also had now lost the right. As regards the matter of title, therefore, the position of the superiors and that of the other defenders is different. That of the superiors depends upon contract, and it is not disputed that they had a title to enforce the restrictions, that of the other defenders on other considerations ; and it appears to me that the first question which arises for decision is, whether these other defenders had also a title to enforce these restrictions.

I have already set forth the restrictions or prohibitions in question contained in the pursuer's titles, and I need not repeat them. It is made matter of admission that the titles of the pursuer, of the Misses Cook, and of the other proprietors in Coates Crescent, of their respective properties

relative plea is that he is in any view entitled to use it ' as an office,' and that plea is of course founded on the occupation of Messrs Dalgleish & Bell, Now I think this question must be considered as if it had arisen in 1885, when Messrs Dalgleish & Bell removed ; and for a reason already stated, my view is that nothing had occurred in the time of Messrs Dalgleish & Bell to prejudice the rights either of the superiors or the co-feuars. There had been no structural alteration. There had been no agreement. Nothing had been done which could not be undone. There had been simply non-interference during Dalgleish & Bell's time ; and when they removed matters wore exactly in statu quo ante. Whether Dalgleish & Bell's occupation could have been successfully challenged, except at first, need not be considered. I incline to think that it was throughout precarious, except in so far as it might have been held that their occupation was in substance a residential occupation. But however that may be, I am unable to affirm that in respect of their occupation the pursuer is entitled to a declarator which would abridge the effect of the restriction in the title, whatever upon its just construction that effect may be.

"On the whole, therefore, I am of opinion that the defenders must bo assoilzied generally from the conclusions of the summons, with expenses"

1072 CASES DECIDED IN THE [fourth series.

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

therein, contain clauses of prohibition against the use thereof otherwise than as dwelling-houses only, and against making any deviation and alteration upon the plan and elevation adopted for Coates Crescent, and pattern balconies and iron railings in front of such subjects, in terms substantially identical.

It is farther admitted that all such titles also contain provisions relative to the pleasure-ground in Coates Crescent, and to the formation and maintenance of the sewers, inferring community of interest and obligation among the feuars with regard thereto.

At the date of the original feu-charter granted to the pursuer's predecessor houses had been built on the whole of the areas in Coates Crescent, and the charter shews that they, including the pursuer's house, had been built in strict conformity with the plan and elevation which had been adopted for the Crescent, and it is because such a common plan had been adopted that the feuar comes under the restrictions in question. Now, we learn from the case of Hislop,1 that although the titles of the several feuars contain identical restrictions, that may not be of itself sufficient to infer mutuality of obligation, yet that if it appears that the restrictions are entered into for the benefit of the feus already existing, or to be created thereafter, the restrictions may be enforced by each co-feuar. In the case of Hislop 1 the Lord Chancellor stated that this mutuality of obligation can only be established by express stipulation in the respective contracts, or by reasonable implication from some reference in both contracts to a common plan or scheme of building. Now we have in this case what the Lord Chancellor desiderated in that case, viz., a reference to a common plan or scheme of building adopted by the whole feuars. Farther, it appears that the titles of all the feuars contain a clause declaring that the superiors shall have power to vary or alter any of the plans, and streets and lanes upon the ground belonging to them, and not built upon at the time of granting the respective feu-rights thereof. The inference is that the superiors had not power to vary or alter the plans, &c, on the ground built on. At the date of the pursuer's charter the whole of the areas known as Coates Gardens and Manor Place were built upon. The superiors therefore could not vary or alter, or consent to the variation or alteration of the common feuing-plan of Coates Gardens and Manor Place. This seems sufficient to shew that the common feuing-plan was not adopted in the interest of the superiors alone, but of all the feuars, thereby indicating common right and interest. It appears to me that we have in this case sufficient to imply common interest, and common obligation, on the part of all the feuars, and that therefore the defenders have a title to insist on the enforcement of the restrictions in question, unless the pursuer can shew that they have lost that right.

The grounds on which the pursuer maintains that the defenders have done so (and in this matter I do not think that there is any distinction between the case of the superiors and of the other defenders) are that the restrictions have been departed from by the consent or acquiescence of all parties having interest to enforce them, in respect that they have consented to or permitted material deviations from and alterations upon the general

1 Dec. 17, 1879, 7 R. 384, revd. June 23, 1881, 8 R. (H. L.) 95.

VOL. xxiv.] COURT OF SESSION, &c. 1073

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

plan, and elevation, and have consented to or permitted a use and occupation of the pursuer's premises inconsistent with the restrictions.

The material alterations founded on by the pursuer are that dormer windows have been added to the roof of the tenement of which the pur-suer's house forms part, and to the roofs of eleven other houses in Coates Crescent, and that complete storeys have been added to the front elevations of three other houses, one wholly of stone and the other two chiefly of timber.

The question would seem to be whether these deviations from the building restrictions amount to a total abandonment of them.

I agree with the Lord Ordinary that the consent to the abandonment of certain building restrictions, implied from acquiescence, does not imply consent to the abandonment of all building restrictions which may be imposed upon the feuars. I think that, as stated in Stewart v. Burden,1 the true principle is that the consent implied in acquiescence goes no farther than the things acquiesced in or things ejusdem generis, and that it is only when the acquiescence shews a virtual departure from the whole servitude that it will receive such effect. The alterations consented to, or at least permitted, in this case, are entirely consistent with the use and occupation of the premises as dwelling-houses only, which was certainly one of the principal reasons for introducing the restrictions, whereas the alterations proposed by the pursuer would convert his house into a shop or warehouse, which, as the Lord Ordinary says, is a contravention of quite a different kind, and one which is specially prohibited.

I am accordingly of opinion that the alterations already made on the buildings do not imply an abandonment of the whole building restrictions, and do not entitle the pursuer to make the alterations proposed by him.

With reference to the use and occupation of the pursuer's premises, which are alleged to have been in contravention of the restrictions in question, the facts founded on are that the pursuer's predecessors, Messrs Dalgleish & Bell, W.S., used and occupied them as writing-chambers from 1871 to 1884, and that from 1884 until the pursuer purchased them in 1896, the pursuer's predecessor, Mr Aitken, used and occupied them as a shop.

With reference to the occupation of them by Messrs Dalgleish & Bell as writing-chambers, no objection was made to it by either the superior or the feuars. On the other hand, Messrs Dalgleish & Bell made no change on the house externally or internally, except that upon the front door, which was kept shut, they placed a brass plate with " Messrs Dalgleish & Bell, "W.S." engraved on it.

It appears to me that their occupation of the premises in this way must be ascribed to tolerance merely.

It does not follow that because the superior and feuars allowed Messrs Dalgleish & Bell so to occupy the premises they were bound to allow any or everybody else so to do. Still less do I think that it is to be inferred, from their non-interference with such a harmless and unnoticeable occupation as this, that they must be held to have consented to the conversion of the premises into a shop or warehouse, or their use as such.

1 5 R. 1108.

3Y

1074 CASES DECIDED IN THE [fourth series.

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

With reference to the occupation of the premises by Mr Aitken as a shop, the alterations made by him as affecting the appearance of the premises are set forth in the joint minute of admissions. He certainly made it perfectly plain that he was using them as a shop for the sale of millinery, but he made no change on the external or internal structure of the building.

Several of the proprietors of Coates Crescent, among whom were the defenders the Misses Cook, with the consent and approval of the superiors, objected at once to this use of the premises.

A correspondence thereupon ensued between the parties, which it is not necessary to consider in detail. It resulted in a letter, of date 16th March 1885, addressed by Mr Aitken to a committee representing proprietors of houses in Coates Crescent, which concluded in these terms, and which was communicated to the superiors,-" It will be quite open to any of the proprietors to adopt whatever proceedings they may be advised to take to have their legal rights determined without my pleading that their being at present passive be construed into consent or approval," and it is admitted that in respect of this correspondence no legal proceedings were then taken.

It is perfectly clear that so far from Mr Aitken's use and occupation of the premises as a shop being acquiesced in by the defenders, such use of the premises was objected to and protested against all along. I do not see how implied consent can be inferred in the face of express objection.

The case would have been different if the defenders had stood by and allowed Mr Aitken to incur considerable expense in the conversion of his premises into a shop. In that case I think it is clear that they would have been barred from objecting to his occupying it as a shop, and if the pursuer had purchased the premises as converted, I think he would have been entitled to use them as such. But we have no such case here. Mr Aitken incurred no such expense with the knowledge of the defenders, and the pursuer was informed before he purchased that any use of the premises for trade purposes would be objected to.

I think the interlocutor of the Lord Ordinary should be adhered to.

Lord M'Laren.-I concur in the opinion of Lord Adam, and have little to add. It does not admit of doubt that the superior is entitled to enforce building conditions which he or his authors caused to be inserted in the feu-rights, unless he has debarred himself from enforcing these conditions by acquiescing in alterations of the character described in the summons, or unless he has expressly authorised the particular thing. If the parties were willing to limit the discussion to this question, I should have no difficulty in affirming that it was impossible for the pursuer to obtain decree of declarator in the face of the superior's objections. I shall say nothing on the question of acquiescence or implied abandonment of the building conditions, because I agree with all that Lord Adam has said. The principle to be applied in such questions is, 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 which the feuars have presumably consented to.

VOL. xxiv.] COURT OF SESSION, &c. 1075

No. 187.

July 10, 1897.

Johnston v. The Walker Trustees.

But then the co-feuars, who are defenders, are not satisfied that their rights would be sufficiently protected by a decree of absolvitor in favour of the superior for all interested. They desire also to have this declarator negatived at their instance, standing on their own rights under their title-deeds. Now, the condition of the right of a co-feuar to enforce a building condition is, according to the highest authority, that he has either obtained from the superior an express authority to enforce the conditions contained in the feu-rights of his neighbours, or that there is such a reference to a common system of conditions in the titles of each of the feuars as makes it clear that these conditions were inserted for their common benefit, and not merely for the protection of the superior's rights. The clearest case of such a right accruing to feuars by implication is the case where the superior in each feu-right, or in the case of any particular feu-right, agrees that he shall insert like conditions in all feus hereafter to be granted, because his doing so amounts to a plain declaration that every vassal is to have a right to enforce the common plan or system of conditions. The feuar stands creditor in the obligation to insert such conditions in the feu-rights of his neighbours in order that he may enforce them. There could be no reason for putting the superior under such an obligation, unless the vassal was to enforce the conditions agreed to be inserted. But then this is not so strong a case. Still, where a feuar is taken bound to observe building conditions, described as elements of a common building plan which the superior intends to make binding on all the feuars within an area described, this, I consider, is equivalent to a grant to the feuar of a right to enforce the conditions. Obligatory language is not absolutely necessary to give an interest to the feuar, and it may fairly be deduced from the words used in these feu-contracts that what the feuar is bound to is, not the observance of a certain elevation or building plan for the security of the superior's feu-duty, but the preservation of a common building plan for the amenity of the street or place and the convenience of the feuars. According to the opinions delivered in the House of Lords in the case of Hislop,1 the question is reduced to one of intention. "Where it is made to appear as matter of intention, or agreement between the superior and the feuar, that the feuar shall have the right to enforce the conditions, this suffices for the decision of the question in the feuar's favour.

I agree with Lord Adam that, according to the intention of the parties and their authors, these building restrictions were imposed for the common benefit, and with the intention of giving a right to the individual feuar to insist on the fulfilment by others of the system of conditions.

The Lord President and Lord Kinnear concurred.

The Court adhered.

Jamieson & Donaldson, S.S.C.-W. & J. Cook, W. S.-Agents.

1 8 R. (H. L.) 95.

24 R 1061

The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.