Scottish Co-operative Wholesale Society v Finnie
| Jurisdiction | Scotland |
| Judgment Date | 16 July 1937 |
| Date | 16 July 1937 |
| Docket Number | No. 73. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Dean of Guild, Kilmarnock.
Building RestrictionsEnforcement of restrictionsTitle to enforceRestrictions imposed in dispositionRestrictions made real burdens on subjects disponedStipulation for disponers' approval of buildings to be erected on ground disponedDean of GuildPetition by disponees for liningObjection by disponersEvidenceBurden of proofOnus on disponees to show that disponers had no interest to enforce restrictionsContract.
The disposition of a plot of ground in Kilmarnock contained building restrictions, including a stipulation that the plans and elevations of proposed new buildings should be subject to the approval of the disponers. The building restrictions were declared to be real liens and burdens upon the subjects disponed.
In a petition by the disponees to the Dean of Guild for warrant to erect buildings on the ground thus acquired, an objection by the disponers that the buildings contravened the restrictions in the disposition was repelled by the Dean of Guild without inquiry, on the ground that, as the restrictions had been imposed for the benefit of proprietors, the disponers, having parted with the subjects absolutely, had no interest to enforce them.
Held that, as granters of the disposition, the disponers wereprima facie entitled to insist upon the observance of its stipulations, and accordingly that, before their objections were repelled, it was necessary for the disponees, who by acceptance of the disposition had agreed to be bound by its terms, to establish that the disponers no longer had any interest to enforce the restrictions; and case remitted to the Dean of Guild for determination of this matter.
By disposition dated 20th, 21st and 23rd January, and recorded on 30th January, 1937, Miss Mary Finnie and others, as trustees acting under a general trust-disposition executed by themselves on 22nd April 1886, and registered in the Books of Council and Session on 2nd February 1888, disponed to the Scottish Co-operative Wholesale Society, Limited, a plot of ground at the corner of John Finnie Street and Bank Street, Kilmarnock. The disposition provided and declared:"(First), that any buildings which our said disponees and their foresaids may erect on the said plot or area of ground before disponed shall be in a line with John Finnie Street and Bank Street and shall not exceed two storeys in height, with attics, if wished, and shall be such as will be in conformity with the adjoining buildings or those on the opposite side of John Finnie Street, (Second), that said buildings shall be built with polished ashlar or red sandstone, uniform in colour, and shall be covered with blue slate roofs, (Third), that the plans and elevations of said buildings shall be subject to our approval, and (Fourth), that said buildings shall in all time coming be occupied as shops or offices on the ground floor, and either wholly or partly as offices, or as dwelling-houses on the upper floor, and for no other purpose; Which Declarations and Stipulations above written are hereby declared real liens and burdens upon and affecting the subjects and others hereby disponed."
In March 1937 the Society presented a petition to the Dean of Guild Court in Kilmarnock for a warrant "to erect certain buildings on the piece of ground situated in John Finnie Street and Bank Street in the Burgh of Kilmarnock, and particularly described in the condescendence, to be used as funeral undertaking premises all in conformity with the plans, sections, and elevations herewith produced." Objections to the petition were lodged by the disponers, who averred that the proposed buildings contravened the restrictions contained in the disposition, and pleaded, inter alia:"(1) The approval of the objectors to the plans and elevations of the buildings and others proposed to be erected on the piece of ground in question being a condition precedent, the Court are precluded from considering or granting the prayer of the petition until such approval is obtained. (2) The buildings and others proposed to be erected on the said piece of ground not being in accordance with, but contrary to, the provisions of the petitioners' title to the ground, the petition should be refused, with expenses."
In their answers to these objections the petitioners explained that the plans of the proposed buildings satisfied the conditions specified in the disposition, and pleaded:"(1) Objections, being irrelevant, should be repelled and the petitioners found entitled to expenses. (2) The objectors having no interest to enforce the conditions contained in the petitioners' title, these objections should be repelled and the petitioners found entitled to expenses. (3) The petitioners' plans being in all respects conform to the requirements of the petitioners' title, the objections should be repelled and the objectors found liable in expenses."
On 19th May 1937 the Dean of Guild, having heard parties' agents, found,inter alia, that the objectors had no interest to enforce the restrictions on building, dismissed the objections, and granted the lining craved.1
The objectors appealed to the Court of Session, and the case was heard before the Second Division on 1st and 2nd July 1937.
At advising on 16th July 1937,
LORD JUSTICE-CLERK (Aitchison).This appeal from an interlocutor of the Dean of Guild at Kilmarnock, granting a lining to the respondents, raises a short point but one of considerable general importance affecting the right of the disponer of heritable subjects to enforce building restrictions contained in the disposition in a question with his immediate disponee. The facts are these. The respondents, the Scottish Co-operative Wholesale Society, Limited, applied to the Dean of Guild at Kilmarnock for warrant to erect certain buildings on ground acquired by them from the appellants situated at the junction of John Finnie Street and Bank Street, Kilmarnock. The respondents are the immediate disponees of the appellants under a disposition dated 20th, 21st and 23rd January, and recorded in the Sasine Register on 30th January, 1937. In this disposition it is provided and declared "(First), that any buildings which our said disponees, and their foresaids, may erect on the said plot or area of ground before disponed shall be in a line with John Finnie Street and Bank Street, and shall not exceed two storeys in height, with attics, if wished, and shall be such as will be in conformity with the adjoining buildings or those on the opposite side of John Finnie Street, (Second), that said buildings shall be built with polished ashlar or red sandstone, uniform in colour, and shall be covered with blue slate roofs, (Third), that the plans and elevations of said buildings shall be subject to our approval, and (Fourth), that said buildings shall in all time coming be occupied as Shops or Offices on the ground floor, and either wholly or partly as Offices or as dwelling-houses on the upper floor, and for no other purpose; Which Declarations and Stipulations above written are hereby declared real liens and burdens upon and affecting the subjects and others hereby disponed."
The appellants lodged objections with the Dean of Guild, in which they averred that the proposed buildings were in contravention of the above-quoted restrictions, in certain respects which it is unnecessary to narrate. The Dean of Guild did not deal with the merits of the objections, but repelled them upon the ground that the appellants had no interest to enforce the restrictions. He did so without inquiry. The ratio of the Dean of Guild's judgment would appear to be that the
restrictions contained in the respondents' title were inserted for the benefit of owners of property, and not of individuals merely, and that, as the appellants had parted with the subjects absolutely, they had no proprietary interest to enforce the restrictions against the respondents.
It is clearly settled, in the case of a feu-contract, where the relation is that of superior and vassal, that there is a presumption that the superior has an interest in a question with the original vassal to enforce a restriction on property contained in the vassal's title. The law is laid down in Earl of Zetland v. HislopELR11 in the well-known passage in the judgment of Lord Watson where he says (at p. 47): "I agree with the Lord Ordinary in thinking that the case of the Tailors of Aberdeen v. Coutts12 does determine that wherever a feu-right contains a restriction on property, the superior, or the party in whose favour it is conceived, cannot enforce it unless he has some legitimate interest. But that case does not lay down the doctrine that an action at the superior's instance, which merely sets forth the condition of his feu-right and its violation by his vassal, must be dismissed as irrelevant because the pursuer has failed to allege interest. Prima facie, the vassal in consenting to be bound by the restriction concedes the interest of the superior; and, therefore, it appears to me, that the onus is upon the vassal who is pleading a release from his contract to allege and prove that, owing to some change of circumstances, any legitimate interest which the superior may originally have had in maintaining the restriction has ceased to exist. The law was so stated, and, in my opinion, correctly stated by Lord Neaves in the case of Campbell v. Clydesdale Banking Co.UNK13"
Now, the question to be decided here is whether that law does not apply equally where the relationship is not superior and vassal but disponer and disponee. In the case of a feu-contract the superior retains the superiority, which is a separate estate in the lands, and, in certain events, the property would revert to him. The interest in that case is clear. Does the law presume an interest, in a question with his immediate disponee, where the disponer parts with the lands absolutely by means of a...
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