Scottish Court of Session Decisions

On 17th June 1913 T. O. Mathieson, tool manufacturer, Glasgow, pursuer, brought an action against R. S. Allan, shipowner, Glasgow, and others (Mrs Allan's trustees), defenders, and also against the Lord Advocate as representing the Postmaster-General, in which he sought decree that the defenders were not entitled to alter the structure of the house, 2 Park Gardens, Glasgow, so as to make it unfit to be used as a self-contained dwelling-house, and had no right to use it as an office for conducting post office business, with conclusions for interdict.

The pursuer pleaded, inter alia—“(1) The defenders' alterations on and proposed use of the said self-contained dwelling-house, No. 2 Park Gardens, Glasgow, being in violation of their title, on a sound construction thereof the pursuer is entitled to decree of declarator and interdict as concluded for.”

The defenders, inter alia, pleaded—“(4) The proposed use of the building by the Postmaster-General not being contrary to the restrictions in the titles, the defenders should be assoilzied.”

The facts are given ( v. also opinion of Lord Mackenzie) in the opinion infra of the Lord Ordinary ( Hunter), who on 14th November 1913 repelled the pursuer's first plea-in-law and dismissed the action.

Opinion.—“The pursuer, who is heritable proprietor of No. 1 Park Gardens, Glasgow, has brought an action against his neighbours, the proprietors of No. 2 Park Gardens, to have it found and declared that the defenders, ‘… [ quotes conclusions of summons, v. sup.]…’ The Lord Advocate, as representing the Post Office, to whom a lease of their property has been granted by the principal defenders, is called for his interest. The defences are put in by him.

“In the disposition to the common author of the pursuer and the defenders it was provided that the disponees should be bound to erect self-contained lodgings on the ground; and it was declared that as ‘the lodgings which may be erected on said subjects as aforesaid are intended to continue permanently as dwelling-houses, neither they nor the offices shall be converted into shops, warehouses, or trading places of any description.’ Provision is made for the declarations and restrictions being made real burdens upon the subjects, and it is said that the titles of the pursuer and the defenders all contain ad longum or by valid reference the said declarations and restrictions. I assume, therefore, that the pursuer has a title to enforce these declarations and restrictions against his co-feuars.

In terms of the lease in favour of the Postmaster-General, it is provided that ‘the lessee is at liberty, so far as the lessors are concerned, to utilise the premises as the working place for clerical purposes of a staff of assistants engaged in Government official business.’ According to the pursuer's averments the house is to be occupied during business hours by a large staff of clerks and other employees. ‘Correspondence with reference to telephone contracts, including letters soliciting orders for the installation of telephones, is dealt with at and conducted from the house. Large baskets, believed to contain these letters, are left lying on the steps and pavement in front, and business is regularly carried on in the said house until long after usual business hours.’ The main question which I have to determine is whether this use of the property constitutes an infringement of the condition as to user to which I have referred.

In the recent case of Graham v. Shiels, 1901, 8 S.L.T. 368, Lord Kyllachy held that a clause expressed in practically the same terms as the one in question did not prevent a dwelling-house being used as a nursing home, such use not having the effect of converting the premises into a shop, warehouse, or trading place ejusdem generis with a shop or warehouse. His Lordship in the course of his opinion expressed a doubt whether the words expressive of the original disponer's intention that the lodgings were to continue permanently as dwelling-houses formed part of the operative restriction. In view, however, of the opinion of the Lord President expressed in the case of Montgomerie-Fleming's Trustees v. Kennedy, 1912 S.C. 1307, I think that I must hold that the circumstance that the declaration is expressed in parenthetical form does not prevent effect being given to a prohibition which is intended to be a real burden upon the land. The pursuer therefore maintains that the contemplated use of the premises by the Postmaster-General constitutes an infringement which he is entitled to prevent. He relies mainly upon the case of Ewing v. Hastie, 1878, 5 R. 439, where it was held that the use of a house as a young ladies’ school for about twelve boarders and fifty day scholars constituted an infringement of a restriction that the house was to be used as a private dwelling-house only. A restriction upon user which it is sought to enforce must be strictly construed, and in the present case it is merely provided that the houses are to be used as dwelling-houses, not that they are to be used as private dwelling-houses. In the case of Colville v. Carrick, 1883, 10 R. 1241, Lord Young at 1245 expressed an opinion that a clause as to buildings in the following terms—‘And as they are intended to continue permanently as dwelling-houses, neither they nor the offices should be converted into shops, warehouses, or trading places of any description’—did not prevent the use of the premises as a school. No case was cited to me to show that the Court had held that premises ceased to be regarded as lodgings or dwelling-houses because no person resided in them at night. The real question seems to me to be whether the use complained of converts the premises, as Lord kyllachy said in Graham's case, into a trading place such as a shop or warehouse. I do not think that the use by clerks in the employment of the Post Office as described by the pursuer will have this effect, and I shall therefore dismiss the action.”

The pursuer reclaimed.

At the hearing in the Inner House counsel

Page: 460↓

for the pursuer stated that he did not desire a declarator with reference to the structure of the house but merely as to its use.

Argued for reclaimer—The user in question was an infringement of the defenders' title. It was clearly intended that the house was to be used for private residential use only. Dwelling-house meant a place of residence as opposed to a place of business—Webster's Dictionary, Murray's Dictionary. The criterion was not the structure but the mode of occupation. A club or an office could not be called a dwelling-house. The pursuer therefore was entitled to decree — Fraser v. Downie, June 22, 1877, 4 R. 942; Ewing v. Campbells, November 23, 1877, 5R. 230, 15 S.L.R. 145; Ewing v. Hastie, January 12, 1878, 5 R. 439, 15 S.L.R. 263. Esto that occupation as a school might not be prohibited— Colville v. Carrick, July 19, 1883, 10 R. 1241, 20 S.L.R. 839—a school was not a trading place, and that was what was prohibited here. And it was clearly prohibited— Johnston v. The Walker Trustees, July 10, 1897, 24 R. 1061, 34 S.L.R. 791. The case of Graham v. Shiels, 1901, 8 S.L.T. 368, on which the defender relied, was wrongly decided and inconsistent with Montgomerie— Fleming's Trustees v. Kennedy, 1912, S.C. 1307, 49 S.L.R. 925. The words were “trading places of any description,” and these were wide enough to cover “business premises,” even if the canon of ejusdem generis were applicable. As to the construction of that canon reference was made to the Admiralty v. Burns, 1910 SC 531, 47 S.L.R. 481.

Argued for respondent—The titles contained no restrictions as to use. Esto, however, that they did, the proposed user was not struck at. It was not proposed to convert it into a trading place or shop. The action therefore should be dismissed— Graham ( cit.), where the same title was construed. The case of Ewing v. Hastie was distinguishable, for there the use was limited to that of “private” dwelling-houses.

At advising—