Bainbridge v Campbell
| Jurisdiction | Scotland |
| Judgment Date | 09 November 1911 |
| Date | 09 November 1911 |
| Docket Number | No. 15. |
| Court | Court of Session |
Lord President, Lord Johnston, Lord Cullen.
PropertyBuilding restrictionVillas or dwelling-housesLegality of erecting tenements.
In a disposition of a plot of building ground the disponer prohibited the erection of houses or buildings other than villas or dwelling-houses with offices and such enclosing walls as my said disponee may think proper to build.
Held (diss. Lord Johnston) that the erection of a tenement of dwelling-houses was not prohibited.
In September 1910, George Bainbridge, florist, Rothesay, the proprietor of a plot of building ground on the east side of Mill Street, Rutherglen, proposed to erect thereon three tenements of dwelling-houses, and presented a petition in the Dean of Guild Court there for warrant to do so.
The petitioner's ground was part of an area at one time held by a single proprietor, who, between 1872 and 1877, conveyed certain portions of it to various feuars and disponees, including the petitioner. The disposition in favour of the petitioner, granted in 1877, provided as follows:And providing, as it is hereby provided and declared, that no houses or buildings of any kind shall be erected on the said ground other than villas or dwelling-houses with offices and such enclosing walls as my said disponee may think proper to build, but this shall not imply a prohibition against using the ground for nursery purposes for the rearing of trees, plants, shrubs, fruits, and flowers, nor shall it imply a prohibition against the erection of greenhouses or conservatories, which, if erected, shall be constructed of iron or wood of an ornamental character, except to the extent of 4 feet above the surface of the ground, which may be of neat brick or stone work.
Objections were lodged to the petition by John Campbell, Park Villa, Rutherglen, and four others, being the proprietors of the other portions of the area given off between 1872 and 1877, and the representatives of the common author who still retained a portion of the area. It is unnecessary for the purposes of this report to refer to the particular terms of the titles of the objectors.
The objector John Campbell pleaded;The petitioner being prevented by the terms of his title from erecting the buildings proposed by him, and the objector being entitled, and having an interest to object thereto, the warrant craved should be refused, with expenses.
Similar pleas were stated by the other objectors.
On 6th November 1910 the Dean of Guild granted a lining by an interlocutor in the following terms:Finds that the buildings proposed by the petitioner are not in violation of restrictions contained in his title: Therefore repels the objections stated for the respondents, and grants warrant as craved.*
The objectors appealed, and the case was heard before the First Division (consisting of the Lord President, Lord Johnston, and Lord Cullen) on 8th November 1911.
Argued for the appellants;Flatted tenements were not dwelling-houses within the meaning of the exception contained in the petitioner's title. Though there might be circumstances in which such tenements could be regarded as dwelling-houses,1 they could in no case be regarded as villas.2 For the purposes of the petitioner's title the words dwelling-houses were to be construed as referring to buildings ejusdem generis with villas, and this construction necessarily excluded tenements. Moreover, dwelling-houses with offices and enclosing walls clearly referred to dwelling-houses of the nature of villas and not to tenements. All deeds granted by the common author of the petitioner and the objectors might competently be referred to for the purpose of construing building restrictions imposed
posed by him, and when the petitioner's title was construed in the light of the terms used in these deeds it did not justify the Dean of Guild's conclusions.
Argued for the respondent;All dwelling-houses, including those in tenements, might be erected with offices and enclosing walls, so the presence of these words did not help the appellants' case. The petitioner's title contained no restriction to self-contained houses, as it would have done if such a restriction had been intended.1 The term villas was intended to mean something different from dwelling-houses; and flatted tenements, as defined by the Lord Justice-Clerk in the case of M'Arthur v. Magistrates of EdinburghSC,2 were dwelling-houses within the meaning of the petitioner's title.3 It could not be argued that each plot was only to contain one villa or dwelling-house, for there was no limitation as to the number of dwelling-houses which the petitioner might erect. If the terms of the restriction imposed were open to more than one construction, that construction was to be preferred which was in favour of freedom. In any event there was no community of interest between the petitioner and the appellants.
At advising on 9th November 1911,
Lord President.This is an appeal from a decree of lining of the Dean of Guild of the burgh of Rutherglen. In granting the decree of lining the Dean of Guild decided adversely to the objections of certain coterminous proprietors.
The erection of houses for which warrant is sought is an erection of what is generally known as tenement houses, that is to say, a structure in which there are separate sets of rooms forming separate dwelling-places for families.
In the title of the petitioner there...
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