Robertson v Scottish Union and National Insurance Company

JurisdictionScotland
CourtCourt of Session (Inner House - Second Division)
Judgment Date28 May 1943
Docket NumberNo. 38.
Date28 May 1943

2ND DIVISION.

No. 38.
Robertson
and
Scottish Union and National Insurance Co

Burgh—Dean of Guild—Dangerous buildings—Order for taking down or securing—Liability for cost of repairing arches supporting high-level street—"Proprietor" of arches—Servitude—Glasgow West End Improvement Act, 1854 (17 and 18 Vict. cap. lii), sec. 18—Glasgow Police Act, 1866 (29 and 30 Vict. cap. cclxxiii), secs. 4 and 381.

The Glasgow Police Act, 1866, enacts by sec. 381 that the Dean of Guild may grant an order for taking down or securing or repairing a dangerous building, and may award the expenses of the operations against the proprietors. Sec. 4 of the Act provides that the term "proprietor" shall apply to, inter alios,"persons who shall be in the actual enjoyment of the rents and profits of such land or heritage."

Part of a street in Glasgow was carried over another street by means of an embankment, an arched viaduct and an open single-span bridge. The street, including the bridge and its approaches, had been built by a limited liability company, formed for the purpose under the Glasgow West End Improvement Act, 1854, and thereafter dissolved. By sec. 18 of the Act, the Police and Statute Labour Committee of the Town Council of the City of Glasgow were required to maintain, repair and manage the street and bridge "in like manner with the other public streets under" their management.

The arches of the viaduct forming one of the approaches to the bridge having been found to be in a dangerous condition, the Procurator-fiscal, proceeding under sec. 381 of the Glasgow Police Act, 1866, applied to the Dean of Guild to order them to be taken down or secured or repaired, and to award the expenses of executing the operations against the proprietors of the solum supporting them. The proprietors had, at some time, enclosed the ground beneath and between the arches by means of a brick wall, and had let out the interior as a store and garage. The Dean of Guild refused the order, holding that the Corporation of Glasgow was the party liable.

In an appeal in which the only question at issue was the ultimate liability for the expenses—the repairs having been carried out by the Procurator-fiscal—the Procurator-fiscal contended that under the maxim inœdificatum solo solo cedit the owners of thesolum had become the proprietors of the arches, or, at any rate, that, if not the true proprietors, they were the statutory proprietors for the purposes of the Act of 1866 under sec. 4 by virtue of their enjoyment of the rents of the store and garage.

Held, affirming the judgment of the Dean of Guild, (1) that the maxim did not apply, the only burden imposed on the proprietors of thesolum being in the nature of a servitude oneris ferendi, which involved no obligation of upkeep; and (2) that, as the arches formed part of the street, the true proprietor was the road authority, and that it was therefore unnecessary to look for the statutory proprietor under sec. 4.

Opinions that, in any event, the rents enjoyed by the proprietors were not rents of the heritage under consideration.

Opinions, further, that sec. 381 of the Act was inapplicable in the case of such a structure as that now under consideration, and that proceedings should not have been taken under that section.

Part of Bothwell Street in the city of Glasgow, including an open single-span bridge across Bishop Street (formerly Greenhill Street) and an embankment and arched viaduct forming the approach thereto, was built by a limited liability company formed for the purpose under the Glasgow West End Improvement Act, 1854.1

In 1935, James Finlay Langmuir, writer, Glasgow, Procurator-fiscal of the Dean of Guild Court of the Burgh of Glasgow (in whose room and place James Robertson, interim Procurator-fiscal of the Court, was sisted on 4th April 1941), presented to the Dean of Guild a petition against the Scottish Union and National Insurance Company which set forth:—"That the petitioner has received information and avers that a building or part of a building, being the arches entering from 106 and 126 Bishop Street, and which arches carry Bothwell Street, with workshops below the level of the street, of which the Scottish Union and National Insurance Company, 35 St Andrew Square, Edinburgh, defenders are “proprietors” within the meaning of The Glasgow Police Acts, 1866 to 1935,2 appear to be in a dangerous state within the meaning of the Glasgow Police Act, 1866, or are so ruinous, or are in such a state as to cause reasonable apprehension of immediate danger to the inhabitants, and it is necessary that the said building, or part thereof, should be taken down, or at least secured and repaired."

The petitioner craved the Court "to remit to one or more competent persons to inspect and report on the state of the said building, or parts thereof which appear to be dangerous, and to grant warrant to take down or to secure or repair the said building, or parts of said building, if reported to be dangerous: To take such other steps as appear to your Lordship to be necessary for the public safety: To grant warrant to cite the said Scottish Union and National Insurance Co., per the said Daniel Munro & Son, defenders, and after receiving the report of the inspectors, to proceed to enquire into and decide the questions raised in the application: To order the said building, or part thereof, above referred to, to be taken down or secured by the said defenders, or by the petitioner, and, if such operations are not directed to be executed by the said defenders, to ascertain and

award the expense of executing the said operations against the said defenders Scottish Union and National Insurance Co., and to decern for the expenses of this application and subsequent procedure, all in terms of the Glasgow Police Act, 1866, particularly section 381 thereof."

Thereafter the Dean of Guild granted warrant to cite the Scottish Union and National Insurance Company, and remitted to J.B. Brodie, C.E., to inspect and report on the condition of the property. Objections were lodged by the Company, and answers by the Procurator-fiscal. On 5th July 1935, the Dean of Guild, after considering reports by Mr Brodie, dated 13th May and 20th June 1935, ordered the Procurator-fiscal to carry out the operations recommended in the reports, under reservation of all questions of liability for the cost of the work.

In their objections, the Company contended that the arches in question formed part of Bothwell Street, and that the Corporation of the City of Glasgow, as road authority, was liable for the cost of the work done. They pleaded, inter alia:—"(2) The Town Council of the City of Glasgow being bound to maintain and repair the arches which form the subject of the petition presented by the Procurator-fiscal, the objectors should be dismissed from the petition with expenses. (3) The objectors, not being liable for the expense of repairing the arches entering at 106 and 126 Bishop Street, should be dismissed from the petition with expenses."

The Procurator-fiscal pleaded, inter alia:—"(2) The objectors being the proprietors of the arches entering at 106 and 126 Bishop Street, Glasgow, which are in a dangerous condition, they are liable to be called upon to take down or secure the same, and to pay the expenses of executing the necessary operations under section 381 of the Glasgow Police Act, 1866. (3) The objectors being the persons in the actual enjoyment of the rents and profits of the arches entering at 106 and 126 Bishop Street, Glasgow, which are in a dangerous condition, they are liable to be called upon to take down or secure the same and to pay the expenses of executing the necessary operations under section 381 of the Glasgow Police Act, 1866. (4) Separatim. The Town Council of the City of Glasgow not being bound to repair said arches, the objectors should be found liable in the expenses of executing the operations on said arches."

On 14th July 1938, the Dean of Guild (Mitchell), having heard parties, found the objectors liable in the cost of executing the necessary repairs to the arches.

The objectors appealed to the Court of Session, and the case was heard before the Second Division, consisting of the Lord Justice-Clerk (Aitchison), Lord Mackay and Lord Wark. On 4th January 1939, the Court sustained the appeal and remitted back to the Dean of Guild "to allow parties a proof before answer of (1) their averments on record, including any amendments to be made thereon, as to (a) the proprietorship of the arches referred to on record and thesolum on which the arches are built and the solum of the ground between the arches; (b) the actual enjoyment of the rents and profits of the arches, if any, and/or of the ground between the arches, and (2) as to whether the said arches are part of the bridge or street which the Glasgow Corporation under the Glasgow West End Improvement Act of 1854 were taken bound to maintain and repair."

The petition having been intimated to the Corporation of the City of Glasgow and the Corporation having intimated that they did not intend to intervene in the process, evidence was led before the Dean of Guild (Macharg) on 7th December 1942. On 23rd January 1943 the Dean of Guild issued an interlocutor in which he found in fact, inter alia:—"(1) That prior to 1854 Bothwell Street consisted of two portions, the eastern portion extending from Hope Street to Pitt Street and the western portion extending from Bishop Street to North Street, the space between these portions consisting of a declivity of varying level as shewn on the plan and section, etc., deposited in the Sheriff-clerk's office in Glasgow on 13th November 1853. (2) That in the year 1854 a company was incorporated under the Glasgow West End Improvement Act, 1854, for the purpose of carrying out the works defined in section 11 of the said Act as follows:—“A street in the City of Glasgow from a point at or near the junction of Pitt...

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