Aberdeen Varieties Ltd, v James F. Donald (Aberdeen Cinemas) Ltd
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1939 |
| Docket Number | No. 78. |
| Date | 19 July 1939 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Heritable PropertyTitleRestriction on useTwo theatres in city half a mile apart owned by companyOne theatre disponed subject to restriction on useRestriction declared real burden in favour of disponers and successors as proprietors of theatre retained or substituteExtent of restriction ascertainable only by reference to public statuteRestriction to secure commercial monopolyWhether restriction enforceable against singular successors.
A company, owners of two theatres in Aberdeen half a mile apart, disponed one of the theatres to another company, the disposition containing a clause that the subjects disponed should not be used in all time coming for, inter alia, any stage play which required to be submitted to the Lord Chamberlain under the Theatres Act, 1843, the prohibition being declared to be a real burden in favour of the disposing company and their successors and assignees as proprietors of the theatre which they were retaining or any theatre built or acquired by them or their successors in replacement or substitution thereof.
In a question between singular successors of the disponers and the disponees, held that the restriction was not a valid real condition of the grant enforceable by the former against the latter, in respect (1) that, having regard in particular to the relative situations of the subjects, the restriction was not a restriction for the protection of a patrimonial interest in property but was a provision for the illegal imposition of a perpetual commercial monopoly; and (2) that, in any event, the extent of the burden did not clearly appear on the face of the deed and could not be ascertained by reference to the Register, recourse being necessary to the Act of Parliament.
On 14th June 1939 a special case was presented by Aberdeen Varieties, Limited, first parties, James F. Donald (Aberdeen Cinemas), Limited, second parties, and the North of Scotland Bank, Limited, third parties, for the opinion and judgment of the Court on a question which had arisen between the first and second parties relating to the use of the Tivoli Theatre, Aberdeen, by the first parties.
The following statement of facts is taken from the case:"(1) For a number of years prior to 1906 Robert Arthur Theatres Company, Limited, a company incorporated under the Companies Acts, carried on business at a theatre then known as Her Majesty's Theatre and now known as the Tivoli Theatre, Guild Street, Aberdeen, where they presented stage plays and other theatrical entertainments. In said year the said company opened a large new theatre known as His Majesty's Theatre, which is in Rosemount Viaduct, Aberdeen, and is situated about half-a-mile distant from the Tivoli Theatre. (2) By a disposition dated 3rd, 4th and 14th January 1910 and recorded in the Register of Sasines for the Burgh of Aberdeen, on 15th February 1910, Robert Arthur Theatres Company, Limited, with the consent of Walter Gilbert, theatrical manager, Aberdeen, disponed to the Tivoli (Aberdeen), Limited, a company incorporated under the Companies Acts, at the price of 4500 the said subjects known as The Tivoli, Aberdeen. The said disposition contained the following declaration:It is hereby specially provided and declared that the subjects hereby disponed or any part or portion thereof shall not be used in all time coming for the performance of pantomime, melodrama or comic opera or any stage play which requires to be submitted to the Lord Chamberlain under the Act for regulating Theatres Sixth and Seventh Victoria Chapter Sixty-eight, providing always that such prohibition shall not prevent the purchasers applying to the Justices and obtaining a Dramatic Licence under said Act, but notwithstanding the possession of such licence the said premises shall not be used for the performance of stage plays within the meaning of that Act, which prohibition shall be and is hereby declared a real burden in all time coming in favour of us the said Robert Arthur Theatres Company, Limited, and their successors and assignees, as proprietors of the subjects known as His Majesty's Theatre situated on the north side of Rosemount Viaduct in the Burgh and County of Aberdeen or any theatre built or acquired by us or them in replacement or substitution thereof upon and affecting the subjects hereby disponed, and is hereby appointed to be inserted at full length in any Notarial Instrument to follow hereon and to be inserted at length or validly referred to in all other Instruments and also in all deeds of transmission, decrees and other writs of or relating to the said subjects or any part thereof, otherwise such deeds, decrees, instruments and writs shall be null and void. (3) Robert Arthur Theatres Company, Limited, carried on business at His Majesty's Theatre, Aberdeen, where they regularly presented stage plays from 1906 until they sold the subjects as after mentioned. The Tivoli (Aberdeen), Limited, carried on business at the Tivoli Theatre. The conditions contained in the said disposition were modified by a minute of agreement entered into between the said Robert Arthur Theatres Company, Limited, the said Walter Gilbert and the said Tivoli (Aberdeen), Limited, dated 1st December 1924 and 14th and 27th January 1925. [The modifications were in respect of minor matters and did not affect the question at issue in the case.] By disposition dated 9th May 1933 and recorded in the General Register of Sasines for the County of Aberdeen on 17th May 1933, Robert Arthur Theatres Company, Limited, disponed to the second parties, James F. Donald (Aberdeen Cinemas), Limited, the subjects known as His Majesty's Theatre, Aberdeen, under the declaration that We specially assign to our said disponees the real burden in our favour constituted in a disposition granted by us with consent of Walter Gilbert in favour of the Tivoli (Aberdeen), Limited, a company incorporated under the Companies (Consolidation) Act, 1908, dated the third, fourth and fourteenth days of January and recorded in the said Register of Sasines, Reversions, &c., kept for the Burgh of Aberdeen the fifteenth day of February all in the year Nineteen hundred and ten, whereby it is specially provided and declared [here followed a repetition of the original declaration]. (5) Thereafter James F. Donald (Aberdeen Cinemas), Limited, carried and now carry on business at His Majesty's Theatre, Aberdeen, where they presented and now present stage plays, variety performances and cinematograph performances. (6) By a disposition dated 2nd and 4th July 1938 and recorded in the General Register of Sasines for the County of Aberdeen on 7th July 1938 the Tivoli (Aberdeen), Limited [who had sold the Tivoli Theatre to Aberdeen Varieties, Limited], at the request of the first parties, Aberdeen Varieties, Limited, but always with and under the real burdens, conditions, provisions and declarations so far as valid, subsisting and applicable specified in the said disposition granted by Robert Arthur Theatres Company Limited, in favour of the Tivoli (Aberdeen), Limited, disponed the subjects known as the Tivoli, Aberdeen, to the third parties. By a back-letter dated 4th and 5th July 1938 the third parties declared that they held the said subjects in security for the first parties."
The case further stated:"(7) Questions have now arisen between the first and second parties as to the effect of the said declaration quoted in article (2) hereof, and, in particular, as to whether it expresses an effective restriction enforceable by the second parties against the first parties upon the use which the first parties are entitled to make of the Tivoli Theatre. (8) The first parties contend that the use of the subjects now known as the Tivoli Theatre, Aberdeen, is not effectively restricted by the declaration set out in the disposition of 3rd, 4th and 14th January 1910, and also that the second parties are not entitled to enforce the said declaration against the first parties. (9) The second parties contend that the use of the subjects now known as the Tivoli Theatre, Aberdeen, is restricted by virtue of the real burden created in the disposition of 3rd, 4th and 14th January 1910, and that they have a title and interest to enforce the said real burden. (10) The third parties offer no contentions."
The question of law for the opinion of the Court was:"Whether the said declaration contained in the disposition of 3rd, 4th and 14th January 1910 expresses an effective restriction enforceable by the second parties against the first parties upon the use which the first parties or the third parties or their successors are entitled to make of the Tivoli Theatre?"
The case was heard on 6th and 7th July 1939 before the Second Division (without Lord Mackay).
At advising on 19th July 1939,
LORD WARK.The question in this case is whether a certain declaration contained in a disposition by Robert Arthur Theatres Company, Limited, in favour of the Tivoli (Aberdeen), Limited, dated 3rd, 4th and 14th January 1910 of subjects in Guild Street, Aberdeen, effectually constitutes a real restriction or real burden upon the subjects, enforceable by and against singular successors. The first parties purchased the subjects in 1938 from Tivoli (Aberdeen), Limited, the title being taken in name of the third parties with a back-letter declaring that they hold the subjects for the first parties. In 1933 the second parties purchased from Robert Arthur Theatres, Limited, the subjects known as His Majesty's Theatre, Aberdeen, in whose favour the restriction in question bears to be imposed. The disposition to the second parties contains a special assignation of the alleged real burden. The declaration runs as follows:"It is hereby specially provided and declared
that the subjects hereby disponed or any part or portion thereof shall not be used in all time coming for the performance of pantomime...To continue reading
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