Ben Challum Ltd v Buchanan
| Jurisdiction | Scotland |
| Judgment Date | 24 May 1955 |
| Date | 24 May 1955 |
| Docket Number | No. 32. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Heritable PropertySuperior and VassalBuilding restrictionsWhether petrol pumps "buildings"Acquiescence of superior in breach of restrictionsCircumstances inferring acquiescencePersonal Bar.
The feuar of a piece of ground, bounded by a public road in a sparsely populated district, was obliged by his feu-charter to erect thereon a dwelling-house and shop with suitable offices, and was prohibited from making any alteration upon or addition to these buildings without the written consent of his superior. The feu-charter further prohibited the erection of any buildings of any other description and provided for the use of the ground unbuilt on as gardens or for planting or as pleasure grounds, unless deviation was specially authorised in writing. At various times during a period of twelve years the feuar, whose business was that of a general merchant, erected on the feu, inter alia,five petrol pumps and a wooden bungalow for fodder storage. No written consent of the superior was obtained for these alterations. At the end of the twelve years the superior took objection to the erection of the petrol pumps, although not on the ground of breach of feuing conditions, and also objected to the temporary use of the bungalow as a dwelling-house, but an arrangement was made whereby the feuar was allowed to retain the petrol pumps on the feu without prejudice to the parties' legal rights. Subsequently, the superiority having changed hands, an action was brought by the new superior for declarator that the feuing conditions had been breached.
Held (1) that, in view particularly of the positive provisions of the feu-charter in regard to the use of the ground unbuilt on, the petrol pumps and the bungalow fell to be regarded as buildings and had been erected in breach of the feuing conditions, but (2) that, as the superior had knowingly allowed, without objection, such substantial breaches, involving the feuar in considerable expense, he must in the circumstances be taken to have acquiesced in them.
Observed by the Lord President that any attempt to use the bungalow as a dwelling-house would raise a different question.
Ben Challum Limited brought an action in the Sheriff Court at Perth against John Buchanan, general merchant, Tyndrum, for declarator "(One) that in terms of the feu-charter granted by the Most Honourable Gavin, Marquess of Breadalbane, K.G., in favour of Charles Allan Cowan, general merchant, Tyndrum, and his heirs and successors whomsoever, dated 22nd March and recorded in the General Register of Sasines applicable to the County of Perth on 28th June, both in the year 1899, it is provided:(First) The said disponee and his foresaids shall be bound within one year from the date of these presents to erect (in so far as not already done) upon the piece of ground hereby disponed, on a site and according to plans and elevations to be approved of by the superior, a dwelling-house and shop with suitable offices all of stone and lime or brick and lime rough cast with cement and covered with slates, and which shall for the actual erection cost at least the sum of 500 sterling, and declaring that it shall not be competent to the said disponee or his foresaids to make any alteration upon or addition to the said buildings without the written consent of the superior; and provided always that no buildings of any other description shall be erected on the ground hereby disponed and the ground unbuilt on shall be used exclusively as gardens or for planting or as pleasure grounds except in such cases as a deviation may be specially authorised in writing by the superior and the said disponee and his foresaids shall be bound and obliged to uphold and maintain the whole of said buildings in good and complete repair in all time coming and of at least the value before mentioned (Seventh) It shall not be lawful to the said disponee or his foresaids to erect upon the said piece of ground any buildings other than those already erected or which may, in terms of the provisions hereof, be erected thereon, or to convert such buildings to any other use or purpose than a dwelling-house and shop and offices connected therewith or to deposit any nauseous materials, nuisances or obstructions on the said ground or the roads, streets or footpaths adjoining the same or to do any other act which may injure the amenity of the place or neighbourhood, further all rubbish accumulated at the erection of buildings or at any other period and all dunghills shall be put down at such place as may be directed by the factor or ground officer for the time being of the superior, or shall, if required by him, be entirely removed; (Two) That the pursuers are the immediate lawful superiors of [the piece of ground in question]; (Three) That the defender is the vassal, being the successor to the said Charles Allan Cowan, in [the piece of ground in question]; and (Four) That the defender has at present situated or erected upon the said piece of ground the following buildings or erections and others which are in breach or contravention of the said conditions of the said feu-charter, viz.:(a) A wooden bungalow or dwelling-house with corrugated iron roof. (b) Five petrol pumps with tanks and foundations underneath the same. (c) One wooden building roofed with felt approximately 21 feet by 10 feet. (d)Two wooden erections, one with corrugated iron roofs and the other roofed with felt, used as pigeon lofts. (e) Large bings of coal, scrap metal, wood, corrugated iron, motor lorries and deposits of general materials." The defenders further craved an order for the removal of the buildings, erections, and materials specified in the fourth head of the declarator.
The facts are stated by the Lord President in the course of his opinion.
The pursuers pleaded, inter alia:"(3) The defender as vassal being bound to implement the terms of the said feu-charter, the pursuers as superiors are entitled to decree in terms of the craves of the petition."
The defender pleaded, inter alia:"(4) There having been no contravention by the defender of the terms of the said feu-charter, the defender should be assoilzied with expenses." "(6)Esto that the five petrol pumps and other erections were erected in contravention of the provisions of the feu-charter, the pursuers and their predecessors in title by acquiescing in their existence are barred from seeking their removal."
On 16th September 1954, after sundry procedure, including a proof, the Sheriff-substitute (Prain) pronounced an interlocutor whereby he sustained the fourth plea in law for the defender and dismissed the action, being of the opinion that the petrol pumps were not buildings within the meaning of the feu-charter and that the right to enforce the building restrictions in relation to the wooden erections had been lost by acquiescence.
The pursuers appealed to the Sheriff, and on 10th December 1954 the Sheriff (Guest, Q.C.) recalled the interlocutor of the Sheriff-substitute, sustained the pursuers' third plea in lawquoad the petrol pumps and wooden bungalow, sustained the defender's sixth plea in law quoad the wooden erections other than the bungalow, and granted declarator as craved quoad the petrol pumps and bungalow, being of the opinion that the pumps were buildings within the meaning of the feu-charter.
Thereafter the defender appealed to the Court of Session, and the case was heard before the First Division (without Lord Carmont) on 10th, 11th and 12th May 1955.
LORD PRESIDENT (Clyde).The pursuers in this case are the superiors and the defender is the owner of the dominium utile of an area of ground in Tyndrum, Perthshire. The pursuers are seeking to enforce compliance with certain building restrictions contained in the feu-charter of the ground. The issue before us was confined to five petrol pumps and a building hereinafter referred to as "the bungalow," which are standing on this area of ground, and all of which the pursuers maintained to be in breach of these restrictions. The defence is firstly that these erections did not involve any contravention of the feu-charter provisions, and secondly, and in any event, that if there was such contravention the superiors, by acquiescing in the existence of both the pumps and the bungalow, are barred from seeking the removal of either.
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