Murray v Dunn
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1906 |
| Docket Number | No. 166. |
| Date | 20 July 1906 |
| Court | Court of Session |
Lord Ardwall, Lord Kinnear, Lord President, Lord M'Laren, Lord Pearson.
Superior and VassalPropertyFeu-CharterBuilding RestrictionsTitle of co-feuars inter se to enforceJus qusitum tertioReference to feuing-planMutuality.
The proprietors of a feu raised an action of declarator and interdict against the proprietors of an adjoining feu held of the same superior to enforce certain building restrictions inserted in both charters. These restrictions were not declared to be enforceable at the instance of the co-feuars, but in both charters there was a reference to the superior's feuing-plan; in the pursuers' charter it was declared that the superiors shall not be bound by the plan in feuing out the remainder of the estate further than by a general conformity thereto; and in the defenders' charter that the feuing-plan is referred to for no other purpose whatever than as shewing the position of the ground feued.Held (aff. judgment of Lord Ardwall) that the vassals had no title to enforce the restrictions inter se.
PropertyServitudeConstructionBond of ServitudeEffect of recording bond of servitudeBuilding RestrictionsContract between adjoining feuars to secure amenityBuilding of an unseemly descriptionFlatted Tenements.
Held (rev. judgment of Lord Ardwall) that a restriction upon ground in a villa district against the erection of buildings that are unseemly, is too vague and indefinite to be valid as a restraint upon the use of property.
Question (per Lord Kinnear), whether, as regards the imposition of
restrictions, the registration of a written instrument, which contains the restrictions, but forms no part of the title to land, will serve the same purpose as the recording of a conveyance of the lands containing the restrictions.
In 1855 the trustees of Mrs Ann Grant of Kilgraston, proprietors of the estate of Whitehouse, granted to Mr David Murray a feu on the north side of Strathearn Road, Edinburgh, on which a villa, named St Margaret's Tower, with a garden and shrubbery, was subsequently built; and in 1858 they granted another feu, adjoining the east side of the former, to Dr James Gillis, Roman Catholic Bishop of Limyra, who in 1861 disponed his feu to the Trustees for St Margaret's Convent. The grounds of the Convent itself adjoined the west and north sides of Mr Murray's feu.
In 1903 the Convent Trustees, who had acquired the superiority of their feu, feued part of the subjects to George Alexander Wilson, who applied to the Dean of Guild for warrant to erect two blocks of four-storied tenements thereon, the back windows of which would overlook the east side of Mr Murray's feu.
In 1905 Mr Murray's trustees raised an action against the Convent Trustees and against Mr Wilson, concluding for declarator that Mr Wilson's ground, which formed the westmost portion of the Convent feu is subject to valid and binding restrictions enforceable by the pursuers against the erection of any buildings other than villas or self-contained dwelling-houses, and against the erection of any buildings otherwise than in general conformity with the feuing-plan of the estate of Whitehouse referred to in the said feu-charter and instrument of sasine, and also in the pursuers' titles; and that the defenders the Trustees of St Margaret's Convent are bound to insert or validly refer to the said restrictions in all feus, dispositions, or other deeds to be granted of or affecting the said unbuilt-on area, and that the said unbuilt-on area is also subject to a servitude constituted in favour of the pursuers' said property of St Margaret's Tower, against the erection of any building of an unseemly description, or within 30 feet of the boundary of the pursuers' said property; (2) that the buildings delineated on the plans lodged by Mr Wilson in the Dean of Guild Court, are in contravention of the said restrictions, or one or other of them, or of the said servitude, and that the defenders are not entitled to erect the buildings delineated on the said plans, or to erect on any part of the unbuilt-on area of ground situated to the east of the pursuers' property flatted tenements of any description. The summons contained corresponding conclusions for interdict.
The defence stated was (1) that there was no mutuality between the pursuers' and defenders' charters, to enable the one to enforce the restrictions against the other, and that consequently the pursuers had no title to sue; (2) that the restriction in the bond of servitude was too vague to be enforceable.
Two questions were thus raised(1) As to the construction of the charters; (2) As to the effect of the bond of servitude to be mentioned hereafter.
Construction of Charters.
On this branch of the case the pursuers pleaded that the buildings proposed to be erected were in contravention of the restrictions contained in the defenders' charter.
The pursuers' feu was described in the original charter to Mr David Murray as bounded on the east by the unfeued portion of the lot of ground marked No. 2 on the feuing-plan of said lands of Whitehouse, but declaring that the superiors shall not be bound by said plan in feuing out the remaining portions of the estate further than by a general conformity thereto.
The charter further provided that the ground hereby disponed lying around the house or houses to be built by the said David Murray shall be formed into a garden or shrubbery, which shall be kept and maintained as such, or in grass, in a neat and proper manner, and shall be put or diverted to no other purpose, except with the consent of us or our foresaids first had and obtained; and in the event of the said David Murray or his foresaids being at any time desirous of erecting stables on the piece of ground hereby disponed, they shall be entitled to do so only by building them adjoining to and in connection with the dwelling-house or houses to be erected by him or them, or if they are desirous of building them detached therefrom, they shall be bound to place and construct the same according to a plan to be submitted to and approved of by us or our foresaids, or by any architect to be named by us, and which stables shall in either case be built in such a manner as shall not interfere with the view or amenity of any of the adjoining feus.
The superiors further bound themselves in feuing out the land on the south side of Strathearn Road to take the feuars bound to erect their houses facing the road. It was also provided that no distilleries, manufactories, breweries, candleworks, tanworks, kilns, or steam-engines shall be erected, allowed, or carried on either by us or our successors or assignees or by the said David Murray and his foresaids upon or adjacent to the piece or plot of ground hereby disponed or on any other part of the said lands of Whitehouse, or any other work or manufactory which can be reckoned a nuisance to the public or to the neighbouring feuars or proprietors; nor shall any dunghills be collected for sale or for any other purpose than the improvement of the foresaid plot or piece of ground.
The defenders' feu was described in the charter to Bishop Gillis as bounded on the west by the ground feued to David Murray, which forms part of the plot of ground marked No. 2 on the feuing-plan after mentioned which piece of ground is marked or delineated on a feuing-plan of the said lands of Whitehouse made out by George Smith, Esq., architect in Edinburgh, and is composed of the eastmost portion of plots marked 2 on said plan, and the whole of plots marked Nos. 3, 4, and 5, the said feuing-plan being hereby referred to for no other purpose whatever than as shewing the position of the ground hereby feued: Provided always, as it is hereby provided and declared, that no more than four dwelling-houses or villas shall be erected on the said piece of ground, and that a plan and elevation of such erections shall be exhibited to and approved by us or by our successors, or by an architect to be employed by us or them for that purpose before any such buildings are commenced.
The charter contained clauses regulating the erection of stables and prohibiting manufactures in precisely similar terms to those contained in Mr Murray's charter.
Effect of the Bond of Servitude.
In order to secure the amenity of their respective properties, Bishop Gillis and Mr Murray entered into an agreement whereby each party undertook to convey a small piece of his ground to the other, and to come under certain obligations. A memorandum of agreement was executed by both parties on 3d May 1858, and was registered in the Books of Council and Session on 1st June 1858. It contained the following clauses:(Eighth) The Bishop to engage that he will not erect on the said ground belonging to him on the east of Mr Murray's property any building of an unseemly description or nearer than 30 feet from Mr Murray's eastern boundary wall.
(Lastly) Both...
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