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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackay's Trustees and Another v. Wilson & Sons [1895] ScotLR 33_5 (18 October 1895)
URL: http://www.bailii.org/scot/cases/ScotCS/1895/33SLR0005.html
Cite as: [1895] SLR 33_5, [1895] ScotLR 33_5

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

[Dean of Guild Court, Edinburgh.

Friday, October 18 1895.

33 SLR 5

Mackay's Trustees and Another

v.

Wilson & Sons.

Subject_1Dean of Guild
Subject_2Warrant for Structural Alterations
Subject_3Form of Warrant where Buildings already Erected
Subject_4Process — Heritable Right — Onus Probandi.
Facts:

W., who had made certain structural alterations on his premises without obtaining a warrant from the Dean of Guild, and had thereby incurred a fine, brought a petition in the Dean of Guild Court, craving the Court to

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grant warrant authorising the alterations which had already been carried out. Answers were lodged by M., who averred, inter alia, that his property had been invaded by W.'s operations. The Dean of Guild, in respect that these averments raised questions of heritable right which were not within his jurisdiction, sisted process to give M. an opportunity of raising an action in a competent court. As he failed to do so, the Dean of Guild recalled the sist, and granted warrant to the petitioners in terms of the prayer of their petition.

In an appeal by M., on the ground that the form of warrant was irregular, and that the onus of proving his title lay upon W.— held (1) that the form of the warrant, though inappropriate, did not render it invalid; (2) that the petitioner, having presented a prima facie title, the onus of disproving it lay upon the respondent, and that the Dean of Guild had acted rightly in calling upon him to raise an action in a competent court.

Opinions that where alterations have already been carried out, the interlocutor authorising them should take the form of approval of what has been done, and not of a warrant to sanction what was proposed to be done.

Headnote:

Messrs Charles Wilson & Sons, butchers, 19 South Castle Street, Edinburgh, erected a flue at the back of their premises to serve a furnace used by them in their business of sausage manufacturers. They did not obtain a warrant from the Dean of Guild authorising them to do so, and intimation was made to them that they ought to have obtained a warrant, and a fine was inflicted for their neglect. Messrs Wilson accordingly, on 13th October 1894, presented a petition to the Dean of Guild, in which they craved the Court “to grant warrant to the petitioners to erect a flue entirely inside the property occupied by them at the back of 19 South Castle Street.” The flue in question was that already erected by Messrs Wilson.

Answers to the petition were lodged by the trustees of Mr William Mackay, 52 Madeira Street, Leith, and by Mr Hugh Douglas, 14 West Nicolson Street. The respondents averred that the chimneys of their property at 158 and 162 Rose Street were carried up the back wall thereof adjoining the petitioners' premises, and that the flue in question had been connected with one of these chimneys. They averred that the use of this chimney for the purpose of a boiler, furnace, and engine flue was an invasion of their rights of property, and further, that it was a source of damage and nuisance to them.

On 28th February 1895 the Dean of Guild issued an interlocutor, by which he found that the respondents' averments “raise questions which are not within the jurisdiction of the Dean of Guild Court,” and accordingly sisted process for twenty-one days, to admit of the respondents, if so advised, raising an action for the determination of the said questions in a competent court.

The respondents having taken no action, the Dean of Guild on 10th June issued a further interlocutor, by which he recalled the sist, and granted warrant to the petitioners in terms of the prayer of the petition.

The respondents appealed to the First Division of the Court of Session.

Argued for appellants—It was incompetent for the Dean of Guild to grant a warrant authorising the erection of buildings which were already completed. The form of warrant was altogether irregular; it should have been one approving of what had been done instead of authorising something to be done. The whole proceedings were irregular, and should be set aside. In any view, the warrant should only have been granted subject to the condition that the petitioners were able to establish their title against the objections put forward by the respondents. The Dean of Guild had been wrong in placing on the respondents the onus of disproving the petitioners' title. Such onus should always be borne by the agressive party.

Argued for respondents—The petition was one in the ordinary form used in the Dean of Guild Court. Moreover, even if the form were irregular, the respondents could not show that they had been in any way injured by the irregularity, since they had known all along what the erection was for which the petitioners were craving a warrant. The Dean of Guild had acted quite rightly in taking up the position that the questions of heritable right raised by the respondents were outside his jurisdiction, and it was for them to disprove the petitioners' ex facie title.

At advising—

 Judgment:

Lord M'Laren—This is an appeal from an interlocutor of the Dean of Guild granting warrant to make certain structural alterations in the premises of the present respondents. It would appear from the proceedings that these alterations had in fact been made a considerable time before the warrant of the Dean of Guild was applied for, but that he, in the exercise of a very ancient jurisdiction, and on the application of his fiscal, fined the owners of the premises (the respondents) for not having obtained a warrant before proceeding with their alterations, and interdicted them from going on. To purge themselves of the contempt of which they had been found guilty, the respondents presented their application, which I think should have craved approval of the operations as executed, but which was put in the form of a petition for the approval of the works to be executed. Answers were put in, and the warrant appealed against is in the ordinary form granting authority to execute the alterations.

Your Lordships will, I think, agree with me that this is not an accurate form of warrant in such circumstances, and that it would have been better if the interlocutor, instead of taking the form of a warrant to

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erect, had narrated that after examination the Dean of Guild approved of what had been done—using any appropriate language to distinguish between approbation of what had been done, and the ordinary case of approval of something proposed to be done. I cannot think, however, that the omission to notice this distinction should invalidate the warrant. At most the effect of such criticism would be to have the case remitted to the Dean of Guild to pronounce an interlocutor more accurate in point of form. But this would not be desirable, as the case has been defended, and is brought here in order that we may dismiss the application and give effect to the appellants' plea of right. That is a course which I think it is impossible for us to follow in view of the procedure which followed in the Dean of Guild Court. When it was seen there that the defenders' objections involved questions of property which were not appropriate to the jurisdiction of that Court, the Dean of Guild sisted process in order that an action might be raised by the defenders before a competent court for the determination of the question. The defenders did not avail themselves of that sist; they took no proceedings, but asked for a judgment on the case as it stood. Accordingly, judgment was given for the petitioners approving of the work as erected.

It has been said that the onus lay upon the latter to clear their title by instituting an action for that purpose, but no authority for this proposition has been cited, and according to my experience it is contrary to the usual practice. To support an application to the Dean of Guild a petitioner must produce a title to property which is prima facie good, but if there is opposition by anyone who says that the subjects are not included in the petitioner's title, or that he has a right of servitude, then, unless the question be one within the jurisdiction of the Dean of Guild, it is his duty to sist the case in order to have the question determined in this Court. In such circumstances it is, according to all precedent, for the defender to raise the action. Now, the petitioners produced a prima facie title, and, in the absence of any attempt of the defenders to disprove it by an action, the Dean of Guild had no alternative but to act upon it and grant a warrant.

I think that no sufficient ground has been stated for our displacing this warrant, and accordingly I am for dismissing the appeal.

Lord Adam—I agree, and while I think that the form of the warrant is not a happy one, and that it would have been better if it had been expressed as approving of works already executed instead of sanctioning their erection, it does not appear to me that the appellants have been in any way prejudiced by this incorrectness of form. Had the petition craved approval of works already executed, the appellants' objections to it would have been the same, viz., that the property was his, and that a nuisance was caused by the petitioners, and the Dean of Guild would have acted just as he has acted, that is to say, he would have sisted the case to allow the objectors to make out their contention by raising an action. The only difference would have been that in the event of their not doing so, he would have pronounced an interlocutor approving of the works executed instead of a warrant to erect, but the appellants would have been in precisely the same position as they are now. Accordingly, their real objection is not to the form of the petition, but to having, as they say, the onus of raising an action thrown upon them. I agree that the Dean of Guild was quite right in doing so. There may be cases in which the onus should be on the petitioner, as for example where the subjects are ex facie the objector's property, and are not included in the petitioner's titles, but that is not the case here, and nothing has been said to show this should have been done. The result of the action would of course be the same on whichever party this onus lay, so that the question is comparatively unimportant. On the whole matter I agree that the appeal should be dismissed.

The Lord President and Lord Kinnear concurred.

The Court dismissed the appeal.

 Counsel:

Counsel for Petitioners and Respondents— Shaw, Q.C.— Graham Stewart. Agents— Curror, Cowper, & Curror, W.S.

Counsel for Respondents and Appellants— W. Campbell— Gunn. Agent— John Mackay, S.S.C.

 1895

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