This difference in the right which exists in the superior and in the co-feuar seems to me necessarily to affect the character of the acts or omissions which will constitute a bar against them seeking to enforce their rights. It is clear that the actings of the superior cannot bind the co-feuar, and vice versa . But the matter goes deeper than that. Observe, for instance, the position which arises in the case of what I may call the first offender, that is, the case of the first feuar contravening the restrictions. The superior may object here at once, for as Lord Watson says, his interest is prima facie conceded, and I am supposing there has been nothing extraneous to destroy the interest which the superior originally had. The superior, therefore, is clearly entitled to stop him. But with the co-feuar it is otherwise. He cannot stop him unless he can shew a proper interest to do so. Accordingly, if the superior allows the act of the first offender to pass, he must either have willingly allowed it, or he must have conceded that all the legitimate interest to stop such acts was gone, whereas the only inference to be drawn from the non-renitentia of the co-feuar is, that he did not consider that in that instance his interest was sufficient to warrant his interfering.
I am therefore not surprised to find that, so far as the decided cases were concerned, there was not produced to us any instance of a decision in which the co-feuar has been held barred from objecting to the contravention by A because he did not formerly object to the contravention by B, the quality of his interest to object to the operations of A and of B not being the same. On the contrary, the decisions of Stewart v. Bunten , and especially of Gould v. M'Corquodale , go quite the other way. In the case of the superior, there were the well-known decisions of Browns v. Burns , and Campbell v. Clydesdale Bank . But, as I have already pointed out, the superior is in a very different position. In other words, it is much more difficult to affirm that the quality of the superior's interest differs as regards each instance than it is to do so in the case of the co-feuar.
I do not think it necessary to go so far as to say there cannot be an instance where the failure of the co-feuar to assert his right in the case of other co-feuars may not be such as to allow the inference to be drawn that he has totally abandoned the right to enforce. Such an inference could strictly be drawn from the fact of his having himself contravened, and the undoubted acquiescence of his author in the dominant tenement may in this matter be reckoned as his own. But once it is settled that the right is a proper servitude on each of the separate feus, it is, to say the least of it, not easy to infer that because A does not stop B, he intends to free also C and D.
Applying these views to the facts of the present case, I come to the conclusion that the objectors are not barred from insisting in their admitted right to stop the proposed contravention of the petitioners. The Dean of Guild seems to me to have erred in limiting interest to one consideration only, namely, the uniformity of building in the whole neighbourhood. I do not doubt that may represent an interest, but it is not the whole interest. A man may, it seems to me, well say—“I do not object to tenements in the neighbourhood; I do object to them next door.” I think also that, within reasonable limits, a man may be allowed to be the best judge of his own interest. Whether the objector Baird could have stopped the erection of the more distant tenements may be doubtful. But, even assuming that he could, I do not think that, if he did not, he thereby forfeited his right to stop them next door. Tua res agitur paries cum proximus ardet is, I think, good law as well as common sense.
The position of Mrs Roemmele is more difficult. But I come to the same result. An opposite neighbour is not the same as a next-door one; and after all there is, I think, a legitimate interest in conserving the oasis of ground between Cambridge Drive and Kelvinside Gardens, which is as yet unspoiled by tenemental buildings. In the words of Lord Kinloch in M'Gibbon v. Rankin , “the locality must doubtless in its own time follow the fate of most city localities, and do so with that unanimous consent which will get the better of special restrictions. Carlton Place of Glasgow, once well known as the residence of her foremost citizens, must descend to a lower rank and to baser uses; but the time is not to be needlessly and injuriously precipitated.” For these reasons I am of opinion that the judgment of the Dean of Guild is wrong, and ought to be reversed.
Lord M'Laren .—The present case is, by the party maintaining the Dean of Guild's judgment, sought to be assimilated to the case of Campbell v. The Clydesdale Banking Co. , which was decided on the principle that there had been a general abandonment of the original conditions of feu on the part of the community of feuars. I need hardly say that the case referred to is a very important authority, and for a period extending to nearly forty years it has been understood to regulate the rights of the members of a community of feuars who by tacit consent have relaxed the conditions imposed on them by the superior, and have used their property in a way which they conceived to be advantageous to themselves.
But in that case the action was at the instance of the superior, who was not successful in persuading the Court that he had any interest in the matter other than his interest to maintain his security for his feu-duties. I observe that Lord Cowan, who delivered the leading opinion in the case,
states that the whole body of feuars was at one in holding it to be for their interest to depart from the building restriction; in repudiating it, as neither conducing to their utility nor to the ornament of their several possessions. His Lordship proceeded to observe that the superior's objections on this head had been disproved, and the judgment proceeded on the want of interest on the part of the superior to enforce the building restrictions.
Now, I am far from saying that in a question of this nature the consent, express or implied, of every individual feuar is a necessary step to the assertion of the right of one of them to vary to some extent the conditions by which he and his predecessors in title were originally bound. In the case of Johnstone v. The Walker Trustees (24 R. 1061), which came before this Division, it was assumed that a general departure from a building condition would amount to acquiescence on the part of the community of feuars. But this principle, founded as it is on equitable considerations, is subject to a very important qualification, viz., that the inference of general consent or acquiescence is not to be extended to alterations of a different character from those which have been permitted. On this point Lord Adam observes that the consent to the abandonment of certain building restrictions, implied from acquiescence, does not imply consent to the abandonment of all building restrictions which may be imposed upon the feuars. And in my own opinion the principle is stated to be, that where alterations or variations of the conditions of the feu-right have been permitted, the presumption is not for abandonment, but only for relaxation of the conditions of feu, according to the nature of the variations to which the feuars have presumably consented.
When we consider the facts of the present case, I think it may be taken that the appellants were tolerant of deviations from the conditions of feu which did not interfere with their personal comfort or convenience. They were not made parties to the Guild Court proceedings under which power was given to put up tenement or flatted houses within the area of the superiority, and apparently they did not consider that they had such an interest as would justify their intervention. Now, I think it would be a very inconvenient, not to say inequitable, rule that a feuar who becomes aware of some infraction of building conditions by a feuar from the same superior, but at such a distance from himself that the infraction causes no inconvenience to him, must either apply for an interdict or be taken to have waived his right to enforce the condition in a question with conterminous feuars or disponees. I am putting an extreme case in order to test the argument, because if, in the case supposed, the feuar does not lose his right to object by reason of tolerance or acquiescence where his comfort is not affected, then it is a question of degree, or rather a question of fact in each case, whether his tacit assent or non-repugnantia in one or more cases of deviation from the conditions amounts to an abandonment to all intents of his rights in a question with the community.
In the present case I am not of opinion that the abstention from legal proceedings on the part of the appellants, in cases where they did not conceive that their interests were affected, amounts to an abandonment of their rights to enforce the building conditions. I gather from the proof that Mr Baird's interest to enforce the conditions against the respondents is stronger than Mrs Roemmele's interest. But as I am not satisfied that in the case of either of the appellants there has been an abandonment of their contract rights, I think they are in pari casu in resisting the present application, and that their appeal should be allowed. I may add that having heard your Lordship's opinion now delivered, I desire to concur in it.
Lord Kinnear and Lord Pearson concurred.
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