Scottish Court of Session Decisions

The appellant in this suit, John D. Rodger, builder, feued a piece of ground at Dairy, Edinburgh, under a feu-contract entered into between himself and James Steel, builder, containing an obligation that “the gables of the tenement to be erected shall be mutual gables, and shall be built to the extent of one-half of the thickness thereof on the ground hereby feued, and to the extent of the other half on the ground adjoining the same on the north and south respectively; and the cost of erecting the said gables shall be borne equally by the feuars, to whom they shall belong in common, but no part shall be borne by the said James Steel and his foresaids.” The feu-contract also contained a declaration that the obligations, provisions, declarations, reservations, restrictions, and irritancies contained in it shall be real liens and burdens affecting the piece of ground disponed and buildings erected and to be erected thereon.

The appellant built, in terms of the contract, a tenement of dwelling-houses, which was finished and ready for occupation at Whitsunday 1872. The area of ground immediately to the south of appellant's ground was feued by Alexander Wilson, a builder in Edinburgh, under a contract containing similar obligations and declarations as to the gables to those contained in the contract of the appellant before mentioned; and Wilson erected a tenement thereon against the southern gable put up by the appellant. In October 1872 Wilson became bankrupt, and was sequestrated. The trustee on his sequestrated estates entered into possession of the said tenement, which at that time was roofed in, and he finished the work. No payment of the price of the gables had been made by Wilson previous to his bankruptcy, and Rodger lodged a claim to be ranked preferably on the estate for £84, 7s. 5d., being one-half the cost of their erection. This claim was disallowed by the trustee, who reserved to Rodger to lodge an ordinary claim.

The Lord Ordinary, on appeal, pronounced the following interlocutor:—

“ Edinburgh, 12 th May 1873.—The Lord Ordinary having considered the cause, sustains the appeal, recalls the deliverance of the respondent as trustee on the sequestrated estate of Alexander Wilson complained of, and remits to him to sustain the claim of the appellant to be ranked preferably on the sequestrated estate for the sum of £84, 7s. 5 1 2d. claimed, and decerns; finds the appellant entitled to expenses; allows an account thereof to be given in, and remits the same when lodged to the Auditor to tax and to report.

Note.—In the ordinary case, the person who builds a mutual gable in compliance with the usual stipulations in his feu-contract does not thereby add to his neighbour's property to the extent of the building erected on the ground adjoining his own, for the maxim inœdificatum cedet solo does not apply. He has right to the whole wall or gable, subject to an obligation to give to the adjoining proprietor, in return for payment of one-half of the total expense, a right, not to the part of the wall built on his ground, but a common or pro indiviso right to the whole wall. The adjoining feuar is entitled, when he requires it, to make use of the common gable for the purposes of his building, but it is a condition of this right that he shall pay the one-half of the expense when required to do so. The right of the proprietor who erects the gable is real. It is transmitted by a simple conveyance of the property, and does not require a special assignation or conveyance. Again, any assignation or conveyance in favour of the adjoining proprietor is unnecessary in order to give him right to use the gable. The payment of one-half of the expense, or a discharge of his liability therefor, granted by the proprietor of the adjoining property, by whom the gable has been built, or by his successor in the property, gives a title to the gable as common property, and to the use of it accordingly. The law, as thus stated, is settled by the cases cited by the parties in the course of the argument in the present appeal, viz., Wallace v. Brown, June 21, 1808, Mor., Personal and Real. Appendix, No. IV.; Hunter v. Luke and Others, June 2, 1846, 8 D. 787; and Law v. Monteath's Trustees, Nov. 30, 1855, 18 D. 125.

It seems to follow from what has been now stated that while, on the one hand, a party about to make use of a gable built by the adjoining feuar can acquire right to do so by payment of half of the total expense, on the other hand, the proprietor who built the gable is not divested of that real right until payment be made to him of the half of the expense, or until in some way he has discharged the adjoining feuar of his liability to make such payment, and consented to the appropriation of the gable and to the adjoining feuar acquiring a pro indiviso right of property in it.

Applying these principles to the present case, the Lord Ordinary is of opinion that the decision is not attended with difficulty. The appellant, who built the gable as a mutual gable in terms of the obligations imposed on him in his feu-contract, has not received payment of any portion of the expense; and, in the opinion of the Lord Ordinary, he remains the proprietor of the whole gable until that expense is paid to him. It was maintained for the trustee on the bankrupt's estate that the claim is one of recompense, and that the appellant having allowed the gable to be made use of, can only rank as an ordinary creditor on the bankrupt's estate for the half of the expense claimed. The Lord Ordinary cannot adopt this view. Payment has not been made, and it is not said that liability for the amount has been expressly discharged. In a question with the bankrupt, the appellant is not bound to part with the property for a composition on his claim, or for anything short of full payment of the half of the expense of the building. The trustee is in no better position. He enters to possession of a building which has, no doubt, been roofed in, but which was yet in an unfinished condition, for it appears from the joint minute of admissions, No. 12 of process, that the respondent ‘has since proceeded with the internal finishing thereof.’ The Lord Ordinary cannot see that in this state of matters the appellant, either by his actings or acquiescence, has done anything which has transferred a pro indiviso right to the gable to the bankrupt, and consequently to his trustee, or which has limited the appellant's right to full payment of a half of the expense of building as a condition of the trustee taking the benefit of the gable. It may be that if a party having such a claim allows the gable to be made use of, and adjoining buildings are erected, completed, and occupied, and thereafter transferred to a singular successor, that a claim against such successor might be excluded, upon the ground referred to by Lord Deas in the case of Law v. Monteath's Trustees, that in the whole circumstances the successor was entitled to assume that the half of the gable had been already paid for, and that the creditor must look to the person who used and occupied the buildings for reimbursement of his claim. The question which would arise in such a case would be attended with considerable difficulty, for there is much to be said in favour of the view that nothing short of payment, or discharge of the claim for one-half of the expense, will transfer the real right. In any view, the question would turn on the special circumstances, which must amount to a bar of the creditor's claim in respect of his own actings or acquiescence. In the present case there are no circumstances which can create such a bar. It cannot, in the opinion of the Lord Ordinary, be said that there was undue delay to make the claim, or acquiescence in the use of the gable without payment, so that the real right in it was transferred because the creditor did not enforce his claim before the building was roofed in. If he had rendered the account while the building was going up, this would appear to be all that could be expected of even a party very careful of his rights. He was surely not bound to interdict the building in order to preserve his right; and the Lord Ordinary cannot think that in the circumstances his right to full payment was forfeited by delay to make his claim, to the effect of enabling the trustee to acquire a real right in property for which no payment was ever made. Indeed, the principle of the case of Wallace v. Brown, which is the foundation of all the decisions since its date, seems to exclude the argument maintained by the respondent, that the appellant must be satisfied to rank as a personal creditor, and to accept a composition on his claim. No objection was stated to the amount claimed, assuming liability to exist.”

The trustee reclaimed.

Authorities cited—More's Notes on Stair, 196; Mackenzie, 8 and 9 Shaw, 74, 144; Murray v. Aytoun, 21 D. 33; Law, 18 D. 125.

At advising—