Duncan Smith & MacLaren. v Heatly
| Jurisdiction | Scotland |
| Judgment Date | 07 March 1952 |
| Date | 07 March 1952 |
| Docket Number | No. 13. |
| Court | High Court of Justiciary |
High Court
Lord Justice-General. Lord Carmont. Lord Russell.
Statutory Offences—Burgh—Heritable Property—Common interest—Tenement—Flats in separate ownership—Liability to carry out repairs to roof—Titles imposing no variation of common law liability—Whether owners other than those of top flats liable to carry out repairs—Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926 (16 and 17 Geo. V, cap. lxv), sec. 94.
The Edinburgh Corporation (Streets Buildings and Sewers) Order Confirmation Act, 1926, enacts:-Sec. 94. "The owner of any premises abutting on a street shall within twenty-eight days after the service of a notice in writing by the Corporation requiring him so to do provide and thereafter maintain such rhones downpipes channels or gutters or execute and maintain such works as may be necessary to prevent so far as is reasonably practicable surface water from the premises falling upon the. street or flowing on to or over the footway and if he fails to do so he shall be liable to a penalty…"
Notices in terms of sec. 94 were served on all the proprietors in a four-storeyed tenement, each flat of which was in. separate ownership, requiring them to carry out necessary repairs to the hone pipes on the roof within twenty-eight days. The proprietors of a ground-floor shop, whose titles imposed on them no liability with regard to the roof, did not comply with the notice. They were subsequently convicted of a contravention of the section.
Held, on appeal, that, as the liability for the upkeep of the roof of an urban tenement rests, where there are no special provisions in the titles, on the proprietor of the top or uppermost flat, the appellants were not in the circumstances the owners of the premises for the purposes of sec. 94; and conviction quashed.
Smith v. Giuliani, 1925 S. C. (H. L.) 45,commented on.
Duncan Smith & MacLaren, S.S.C., owners of a shop at Nos. 12 and 14 Comiston Road, Edinburgh, were charged, along with eight others, in the Burgh Court of Edinburgh on a complaint at the instance of James Donaldson Heatly, City Prosecutor, which set forth "that being, within the meaning of the Edinburgh Corporation (Streets Buildings and Sewers) Order, 1926, the owners of the premises at 12 to 20 Comiston Road, Edinburgh, being premises abutting on a street, and having been required by the Corporation of the City of Edinburgh, by notice in writing, duly served upon each of you on 19th May 1951, to repair within 28 days from said 19th May 1951 the pipes which convey the water from the roof of said premises, you did fail to do so; Contrary to section 941; of said Order of 1926."
An objection to the relevancy of the complaint, stated by Duncan Smith & MacLaren, having been repelled, evidence was led, and on 26th November 1951 the Judge of Police found them guilty. At their request, he stated a case for appeal to tine High Court of Justiciary.
The stated case set forth that the following facts were admitted or proved:—" (1) The subjects referred to in the complaint as “the premises at 12 to 20...
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Thomson v St Cuthbert's Co-operative Association Ltd
...and the action dismissed. The Court refused the reclaiming motion and dismissed the action. 1 Duncan Smith & MacLaren v. HeatlySC, 1952 J. C. 61. 2 Smith v. Giuliani, 1925 S. C. (H. L.) 45. 3 Inst., II, vii, 6. 4 Inst., II, vii, 9. Reference was also made to Ersk. Inst. II, ix, 11, and Bell......