LADY FAIRFAX & Ors v GREENSHIELDS (Court of Session)

Separate appearance was made for the landlord and his tenants. The latter, however, did not resist the granting of an interdict against them, and stated that they had removed the furnace that had occasioned alarm to the suspenders.

Suspension and interdict is a prohibitory process; but, in the circumstances of this case, it would be absurd to ordain the landlord either to desist from using the furnaces, or to demolish them. A landlord is not entitled, without the tenant's leave, to enter the subjects let; and he has no power to control the tenant's manner of occupancy otherwise than by judicial proceedings.

But even supposing the competency of calling the landlord, still he ought to be found entitled to his expenses, in respect that the suspenders did not complain to him in the first instance, or notify their intention to institute this proceeding.

The Lord Ordinary pronounced this interlocutor:—‘In respect it was competent in this case to make the landlord a party, where an interdict was craved against certain operations of his tenants, and that the tenants have allowed interdict to be pronounced against them, and that the landlord does not insist upon shewing that what they did was not a nuisance, of which the suspenders were entitled to complain, suspends the letters simpliciter; declares the interdict perpetual, and decerns; finds the suspenders entitled to expenses, &c.’

The Court , in respect that the claim for expenses is limited to those occasioned by the pleadings on the competency of the original application against the landlord, adhered to the interlocutor of the Lord Ordinary.