Scottish Court of Session Decisions

The pursuers, the trustees of the late George Michie, possess under a long lease a large tenement, consisting of shops and dwelling-houses, at the head of Flourmill Brae in Aberdeen. Flourmill Brae runs east, or rather north-east, from St Nicholas Street. To the north or north-west of Flourmill Brae lies a piece of ground of irregular shape, which may be described as bounded on the west by St Nicholas Street, on the south by Flourmill Brae, and on the west by a continuation of Flourmill Brae that turns northward. This ground was in 1867 purchased by the defender from the Magistrates of Aberdeen. At that date it was occupied by a flour-mill and other buildings. A portion of the buildings projected with a sharp angle into Flourmill Brae. By his disposition Mr Grant was taken bound to remove this projecting corner, so that the street should be in no part less than 25 feet.

For Time immemorial the line of buildings on the north side of Flourmill Brae receded at the east end, so as to form a wide entry opposite the pursuer's property.

In February 1871 Mr Grant, who had purchased the property with the view of pulling down the existing buildings, and of constructing in its place a large block of buildings, consisting of warehouses, shops, and dwelling-houses, employed Mr Souttar, architect in Aberdeen, to prepare a plan. According to this plan, it was proposed that Flourmill Brae should be straightened, and the line of Mr Grant's buildings set forward at the eastern part of Flourmill Brae, and set back in other places. It will thus be observed that the result was to encroach upon that street at its eastern or wider end, substituting a square, or nearly square, corner for the receding curve which had hitherto been the boundary of the buildings. On the other hand,

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Mr Grant proposed to throw into the street not only the projecting corner of his property before mentioned, but a portion of it facing the continuation of Flourmill Brae turning northward.

The “Aberdeen Police and Water Works Act 1862” is divided into thirty-four parts, some of which are further sub-divided.

Part 24 relates to the “construction and maintenance of sewers.” Under the sub-division entitled “Drainage of Houses” occurs the following clause:—“296. Before beginning to build any new house or building, or to rebuild any existing house or building, within the limits of this Act, the person intending to build or rebuild such house or building shall give to the Commissioners notice thereof in writing, and shall accompany such notice with a plan showing the level at which the foundation of such house or building is proposed to be laid, by reference to some level ascertained under the direction of the Commissioners, and also showing the line of the proposed new house or building in reference to the line of the front of the adjoining buildings on both sides.”

Part 25 relates to the paving and maintaining, forming, naming, and improving of streets. One of the sub-divisions of this part is headed “Improving the lines of streets, and removing obstructions,” and contains, inter alia, the following clauses:—

“333. It shall be lawful for the Commissioners from time to time to cause any of the streets to be enlarged, widened, or otherwise improved, and any new streets to be opened up and formed, and for that purpose they may agree with the owners of any lands within the limits of this Act for the purchase thereof, and they shall resell any parts of the lands so purchased which shall not be wanted for such purpose.

334. The Commissioners may fix and lay down the line of any house or building to be erected or re-erected in any territory within the limits of this Act, after the date at which this Act shall come into operation within such territory, and may require such house or building to be set back, or the corner thereof, where such house or building is at the corner of a street, to be rounded off to the height of the first storey or floor at least, and in such manner as the Commissioners shall direct, for the purpose of widening or otherwise improving any street; provided that the Commissioners shall make full compensation to the owner of any such house or building for any loss or damage he may thereby sustain in the manner provided by the said Lands Clauses Consolidation Acts.

335. Within fourteen days after receiving notice in manner provided by this Act, with the plan showing the line of any house or building proposed by the person intending to build or rebuild the same, the Commissioners may signify the line which they shall have fixed or laid down for such house or building.

336. If such house or building be begun or erected with any line different from that fixed and laid down by the Commissioners, they may cause such house or building to be altered or taken down as the case requires, and the expense incurred by the Commissioners in respect thereof shall be repaid to them by the person failing to comply with the provision aforesaid, and shall be recoverable as damages.

337. If the Commissioners fail to signify in writing, within fourteen days after receiving such notice and plan as aforesaid, that they have fixed and laid down a line different from the line shown on such plan, the person giving such notice may, notwithstanding anything herein contained, proceed to build or rebuild the house or building therein referred to according to the line shown on such plan, provided that such building or rebuilding be otherwise in accordance with the provisions of this Act.

338. The Commissioners may allow, upon such terms as they think fit, any building within the limits of this Act to be set forward for improving the line of the street in which such building or any building adjacent thereto is situated.”

In accordance with the provisions of the “Aberdeen Police and Water Works Act 1862,” Mr Grant's plans were submitted to the Commissioners of Police, and laid before the Street Committee, who, on 14th February 1871, resolved to recommend the Commissioners to approve of the same. The report of the Street Committee was approved of at a general meeting of the Commissioners held on 20th February.

On 22d February Mr Charles Michie, one of the pursuers, addressed a letter to the chairman of the Street Committee, in which he expressed surprise that the Commissioners had sanctioned the said plan, denied their right “thus to hand over any part of Flourmill Brae to Mr Grant,” and gave notice that legal measures would be adopted on the part of the pursuers to protect their rights as proprietors. A meeting of the Commissioners was held on 20th March 1871, at which Mr Michie's letter of 22d February was read and considered. The minute of the meeting bears, “that it was stated that the opinion of the law-agent having been taken on the point raised in Mr Michie's letter, he had suggested that an answer should be sent to the effect that the Board, in fixing the line of the proposed buildings, performed a duty imposed on them by the Police Act, and that they could not interfere in questions between private parties arising out of these proceedings.” The Commissioners then resolved that an answer to the said effect should be sent, and an answer to the said effect was accordingly, on or very shortly after 20th March 1871, sent to Mr Michie.

Mr Grant's buildings were then proceeded with. On 8th January 1872 Michie's trustees raised an action against Mr Grant to have it declared that the defender has no title to encroach upon any part of the solum of the street called Flourmill Brae, or to erect any buildings thereon, or to exclude the pursuers from the full use and enjoyment thereof, which they have hitherto enjoyed as an access to their premises situated at the end of the street. There were also conclusions of interdict and removal of the building, in so far as it extends into the solum of the street.

On record, the pursuers did not aver any specific injury to their premises from the defender's encroachment, beyond a general statement that it would have the effect of impairing their access.

Mr Grant pleaded, inter alia—“(3) The action is excluded by mora, taciturnity, and acquiescence on the part of the pursuers. (4) The action cannot be maintained, in respect that the defender's buildings have been constructed upon the lines and in accordance with the plans approved of by the Commissioners acting under the Aberdeen Police and Water Works Act 1862, as above mentioned. (5) The defender is entitled to absolvitor, in respect that the erection of his buildings upon the said lines, and in accordance with the said plans, has not

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been, and will not be, productive of any loss or damage to the pursuers or their property, but has been, and will be, a great public improvement. (6) At all events, the action cannot be maintained, in respect that the defender's operations are innocuceœ utilitatis.”

The Lord Ordinary allowed a proof.

Evidence was led by the pursuers to show that the value of their property would be depreciated. It was stated that one of the advantages which it had enjoyed from the receding curve in Flourmill Brae was that their north most shop was seen by persons going along St Nicholas Street and looking up Flourmill Brae; and, as St Nicholas Street is one of the chief business streets in Aberdeen, it was represented as a great advantage that the pursuers' shops could be seen therefrom. The encroachment made by Mr Grant at the corner would now prevent the northmost shop being seen from St Nicholas Street. The pursuers also adduced witnesses to prove that their premises would be darkened to a greater extent than if Mr Grant had built within the old boundary.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 29 th March 1872.—… Finds that the defender David Rait Lyell Grant had and has no right or title to encroach or build upon any part of the solum of the street called Flourmill Brae Street of Aberdeen, or to erect any buildings on the said solum, or to exclude the pursuers from the full use and enjoyment thereof; and to this effect finds and declares in terms of the declaratory conclusions of the libel, and decerns: Finds that the defender, the said David Rait Lyell Grant, by the buildings recently erected by him, and which were in the course of erection when the present action was raised, has encroached upon the solum of the said street called Flourmill Brae Street of Aberdeen; and finds that the said encroachment is injurious to the property of the pursuers situated in or at the end of the said street; and, before further answer, and with reference to the views stated in the annexed Note, appoints the case to be enrolled, that the decree of declarator and findings now pronounced may be applied, and the case exhausted; reserving meantime all questions of expenses.

Note.—It is not without great reluctance, and after a good deal of difficulty and hesitation, that the Lord Ordinary has found himself obliged to pronounce the decree of declarator and the findings contained in the preceding interlocutor.

The questions of law involved in the declarator are attended with considerable difficulty, and there will be great hardship if the defender should be compelled to take down the projecting angle of his building, which is complained of as an encroachment. On the other hand, however, the pursuers are entitled to vindicate their absolute rights, and the defender has really himself to blame for the embarrassment and probable expense to which he may be exposed.

The grounds of the Lord Ordinary's judgment are, shortly, the following:—

(1) The Lord Ordinary holds it to be completely proved that from time immemorial the line of Flourmill Brae Street of Aberdeen, at and opposite the pursuers' property, ran in the curved line represented by the blue tint on the plan, No. 6 of process. It is not disputed that from time immemorial the whole space outside that curve was part of the public street, and was causewayed and used as such. This was not seriously contested by the defenders.

The effect of this curve was to orm opposite the pursuer's property a wide or bell-mouthed entry leading from Flourmill Brae into Barnett's Close, and to give to the pursuers' property more light and space than it would enjoy if the curve had been converted into a projecting angle narrowing the street at that place. Among other advantages which the pursuers' property derived from the curve was, that a part of the pursuers' westmost shop was seen by persons passing along St Nicholas Street, and looking up Flourmill Brae; and as St Nicholas Street is one of the chief business streets of Aberdeen, it is said to be of great advantage that the pursuers' shop could be seen therefrom.

It seems to follow that the pursuers have right and interest to maintain the solum of Flourmill Brae, and to prevent any encroachment thereon unless the party making such encroachment can instruct a good and sufficient right to do so.

(2) The defender purchased his property in 1867 from the Lord Provost, Magistrates, and Town-Council of Aberdeen. He purchased it conform to a signed plan, No. 11 of process, which shows precisely the curve in question as the line of Flourmill Brae Street; and in the disposition the defender's subjects are described as bounded on the south-east and south ‘by the street or road called Flourmill Brae.’ Still farther, the defender's subjects are described in the disposition as tinted red upon the signed plan, and the red tint terminates with the curve in question. It is plain, therefore, that the defender, by his title, got no right to encroach or to build upon any portion of Flourmill Brae. The whole solum of the street, that is, all outside the curve, is, both by description and by plan, excluded from the defender's title. All this is quite clear.

(3) The defender got no right, and could get no right, from the Commissioners of Police of Aberdeen to encroach and build upon the solum of Flourmill Brae Street.

The defender's case was, to a large extent, rested upon the authority which he maintained he had derived from the Police Commissioners acting under ‘The Aberdeen Police and Water Works Act, 1862;’ and there is certainly a great deal of difficulty in interpreting some of the clauses of that Statute. The proceedings of the Police Commissioners are not very regular, and their minutes are in several respects inaccurately expressed. It appeared in evidence that at least some of the Comissioners were not fully aware of the circumstances, and the proceedings were in absence, the pursuers of the present action not being heard. The real question, however, is, Whether the Commissioners, under their statute, had power to make over to the defender, for the purpose of his building thereon, a portion of the solum of Flourmill Brae, without the consent of the pursuers, or of any of the proprietors of that street?

The Lord Ordinary thinks the Police Commissioners had no such power. They are not vested, either by the statute or otherwise, with the solum of the street. The vesting clause merely includes paving materials, lamps, &c. They can only remove obstructions, that is, enlarge the solum of the street, by paying compensation; and, although it is difficult to construe the 338th section, the Lord Ordinary thinks that a power to allow buildings to be set forward does not infer a power to alienate any part of the solum to the prejudice of those who

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have formerly enjoyed it. It would be difficult to say where such a power would end; and if under the 338th section the Commissioners could substitute for the wide curve which the pursuers beneficially enjoyed, a projecting angle, to a considerable extent obscuring and shutting up the pursuers' property, they might also narrow the whole street, no matter by what title the proprietors held it. It is little apology that by way of compensation for the encroachment upon Flourmill Brae the defender gave as much or more ground at the foot of Barnett's Close. This is virtually improving the close at the expense of the street, and the Lord Ordinary cannot find warrant for this in any part of the statute. On a construction of the statute, therefore, the Lord Ordinary feels himself compelled to hold that the Commissioners of Police could not make over to the defender a portion of the solum of Flourmill Brae, and could not give the defender right to encroach thereon.

(4) It is clearly proved, and indeed is not disputed, that the defender has encroached upon the solum of Flourmill Brae Street by his buildings, erected in 1871 and 1872. There is some difference as to the exact extent of the encroachment, arising, it appears, from some variation between the building as executed and the original plan, but the discrepancy is immaterial. The Lord Ordinary is also of opinion that the encroachment is to some extent injurious to the pursuers, although probably the pursuers and their witnesses have exaggerated the resulting injury.

Lastly, the Lord Ordinary is of opinion that the pursuers are not barred by anything which they have done or abstained from doing, or by anything which has taken place, from insisting in the present action.

Next to the question upon the Aberdeen Police Act, the plea of bar, or of acquiescence, formed the most important plea relied on by the defender, but the Lord Ordinary does not think the plea well founded.

There never was acquiescence in the proper sense of that term. From the very first the pursuers objected to the encroachment. They objected strenuously, and their objection was never withdrawn. They threatened interdict before the defender began to build, and the threat of interdict was never withdrawn. The defender's plea really is, that because the pursuers threatened an interdict, but did not bring it for three months, they are now barred from in any way challenging the defender's illegal encroachments. But this is carrying the doctrine of acquiescence farther than has ever been done. Three months' delay in bringing an action—the threat of an action never being withdrawn—is hardly consent or acquiescence. Farther, the pursuers were not bound to take out an interdict, which always or often involves a risk of being found liable in damages. The pursuers were entitled to vindicate their rights by declarator, and if the defender, after challenge, went on with his building, he did so at his own risk.

After all, supposing the date of the challenge only 9th December, being the date of Messrs Edmonds & Macqueen's letter, the utmost sum which it would have cost to put the defender's buildings back was only £200, according to his own witnesses, and this is less than the damage which the pursuers' witnesses say has been sustained by the pursuers' tenement. It is vain for the defender to say that the rounding-off his building by the old curve would dislocate his whole scheme of building. It would only angle off two rooms, or a room and closet in each flat of the back tenement. The back tenement is rounded at the corner as it is, and it would have been no great hardship to round it to a greater extent by keeping the line of the old curve of the street. Of course the defender may rail-off as his own, enclose and use as he pleases, the compensation ground which he proposed to throw into the foot of Barnett's Close.

Logically, perhaps, the Lord Ordinary should have ordained the projecting corner to be taken down and set back. He has a strong impression, however, that it would be more equitable and more for the interest of both parties that the defender, instead of taking down the projecting corner, should make pecuniary compensation to the pursuers for any injury their property has sustained. Having in view a possible amicable adjustment on this footing, the Lord Ordinary, while pronouncing the decree of declarator and the findings contained in the preceding interlocutor, has quoad ultra continued the cause. If the views of the Lord Ordinary are well founded, the pursuers are entitled to expenses.”

The defender reclaimed.

Argued for him—Sect. 338 of the statute can have no intelligible meaning unless it gives the Commissioners power to allow a proprietor, upon conditions, to encroach upon the solum of the street.

Argued for the respondents—If the appellants' construction of sect. 338 were sound, it is impossible to say where such a power might end.

At advising—