J. A. Mactaggart & Company v Harrower
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1906 |
| Docket Number | No. 165. |
| Date | 20 July 1906 |
| Court | Court of Session |
Lord Kyllachy, Lord Stormonth-Darling, Lord Low.
PropertyBuilding RestrictionsReal BurdenReal ConditionRestriction imposed in dispositionCreditor lands not specifiedTitle to enforceOther disponees holding express assignationsAccessory rights carried with landsAssignationTitle to Sue.
In 1879, A, by disposition duly recorded, disponed a plot of ground in Hillhead, Glasgow, to B, subject to the restriction that no buildings should be erected on it except self-contained dwelling-houses, and this restriction was declared a real burden. The lands in favour of which the restriction was imposed were not specified, and it did not appear from the disposition that A was the owner of any other lands in the vicinity, but the plot disponed was in fact part of a larger area belonging to A. A disponed other portions of this larger area to C, who in turn disponed to other persons. In the dispositions to C, and in the dispositions granted by him, the right to enforce the restriction contained in the disposition by A to B was expressly assigned. A singular successor of B, after A had parted with the whole of his lands in the vicinity, proposed to erect flatted tenements on B's plot.
Held (affirming judgment of the Dean of Guild, Glasgow) that C's disponees, who were the owners of self-contained houses on the other side of the street, were, in virtue of the express assignations contained in the dispositions in their favour, entitled to enforce the restriction in B's title.
Opinion reserved upon the question whether apart from such express assignation C's disponees would have had a title to enforce the restriction.
J. A. Mactaggart & Company, builders, 65 Bath Street, Glasgow, presented a petition in the Dean of Guild Court at Glasgow craving a lining and authority for the erection of proposed flatted tenements in Bute Gardens, Hillhead, Glasgow. Objections were lodged for, inter alios, Mrs Isabella M'Callum or Harrower and others, proprietors of self-contained houses on the opposite side of Bute Gardens. The ground of objection was that the erection of tenements of dwelling-houses not self-contained was in contravention of a restriction in the petitioners' titles. The petitioners in answer pleaded that the objectors had (1) no title, and (2) no right or interest to object, and (3) that in any event the alleged restriction was ambiguous, uncertain, and indefinite, and therefore void and of no effect.
The facts sufficiently appear from the interlocutor and note of the Dean of Guild.
On 18th May 1906 the Dean of Guild (King) pronounced this interlocutor:Having considered the closed record and productions, the Dean of Guild finds in fact(1) That the petitioners are proprietors of subjects situated on the west side of the street known as Bute Gardens, Glasgow, bounded on the south by ground belonging to J. B. MacBrayne's trustees, on the north by ground belonging to Robert Miller's trustees, and on the west partly by ground belonging to Robert Wylie Hill, and partly by the centre line of a lane; (2) that the petitioners ask authority to erect on the said subjects two tenements of dwelling-houses, the tenements to be of four storeys in height, and the houses in the tenements to be of five, six, and seven apartments, all as shewn on the plans, No. 2 of process; (3) that on the east side of the street called Bute Gardens, along the whole length thereof, and opposite to the subjects belonging to the petitioners, there are situated self-contained houses belonging to the objectors, Mrs Harrower and others; (4) that the ground on which these self-contained houses are built, and the subjects on which the petitioners propose to erect the said tenements, belonged at one time to the National Heritable Property Association, Limited, the said ground and the said subjects being parts of that portion of the estate of Lily-bank acquired by the association in or about the year 1873; (5) that in 1879 the association sold and conveyed the subjects now belonging to the petitioners to George M'Lellan Blair and Robert MacBrayne, retaining the ground now belonging to the objectors, Mrs Harrower and others, until 188587, when the association sold and conveyed it to trustees for the firm of Lindsay & Benzie, builders, Glasgow; (6) that it is averred by the petitioners, and not denied by the objectors, that the association have disposed of the whole ground originally held by them, and have now no interest in the neighbourhood; (7) that, in the disposition granted by the association to George M'Lellan Blair, dated 26th September 1879 and subsequent dates, and recorded G.R. (barony and regality of Glasgow) 15th October 1879, and in the disposition granted by the association to Robert MacBrayne, dated 8th October 1879, and recorded as aforesaid on 15th October 1879, the subjects now belonging to the petitioners were conveyed under the restriction that no buildings shall be erected on the said plot of ground other than tenements of first-class self-contained dwelling-houses, and stables and offices in connection therewith, or a stable and offices containing suitable accommodation for one private dwelling-house, and to be occupied exclusively in connection with a private dwelling-house and not as a livery stable, and the said restriction was declared to be a real burden affecting the lands now belonging to the petitioners, and that these deeds were duly recorded for infeftment in the Register of Sasines;* (8) that, in the conveyances
by the association of the ground now belonging to the objectors, Mrs Harrower and othersthese conveyances being three contracts of ground-annual between the association on the one part and trustees for the firm of Lindsay & Benzie on the other part, the first of which is dated 14th, 16th, and 17th November 1885, and recorded G.R. (barony and regality) for publication, and as also in the Books of Council and Session for preservation and execution 20th November 1885, the second of which is dated 29th April, and recorded as aforesaid on 1st May 1886, and the third of which is dated 18th, 26th, and 28th May, and recorded as aforesaid on 1st June 1887the ground was conveyed under the declaration that no buildings of any kind whatever, other than the self-contained lodging or dwelling-house and relative office therein described, should be erected on that ground (the declaration being thereby made a real burden upon and affecting the ground), and in the conveyances the association specially assigned to the trustees for Lindsay & Benzie, inter alia, the foresaid dispositions in favour of Blair and MacBrayne, to the extent and effect of conferring on the trustees for Lindsay & Benzie and their assignees the right to insist on the implement and performance of, inter alia, the real burden quoted in the seventh finding; (9) that the said dispositions and right assigned to the trustees for Lindsay & Benzie have been duly transmitted by and from them to the objectors Mrs Harrower and others, with the exception of the objectors the trustees of William Cumming; (10) that the buildings proposed to be erected by the petitioners are not tenements of...
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