Lord Young —But for the decision referred to by the Dean of Guild, the decision in the case of Hamilton Model Lodging-House Company , I would have been disposed to differ with the judgment of the lean of Guild. I think that decision is deserving of reconsideration. But understanding that all your Lordships are of opinion that that case was well decided, and that the Dean of Guild could not have acted otherwise than he did upon it, I do not think it would be in any way useful for me to say more on the subject.
Lord Trayner —I am not prepared to adopt all the views expressed in the note to the Dean of Guild's interlocutor. But I think he has come to a sound conclusion on the case before him, and indeed I do not think he could have reached any other conclusion without disregarding the decision pronounced in this Court in the case of The Hamilton Model Lodging-House Company to which he refers. I think that that decision rules the present case.
Lord Moncreiff —I have considerable sympathy with the appellants, because the effect of the Dean of Guild's judgment is to prevent them from making a beneficial and what appears to be a harmless use of their ground. But the terms of the 152nd section of the Burgh Police Act of 1892, as it has been interpreted by this Court, are I think fatal to the appellants' proposal. That section declares that it shall not be lawful to form or lay out any new street or court unless the same shall be at least 36 feet wide. Now, the street shown on the plan ex adverso of the proposed buildings is 36 feet wide, but the entrance to it from Bertram Street is only 22 feet wide. It was explained to us that in a previous application a builder was allowed to form that entrance of that restricted width on the assurance that it would only be used in connection with a mews lane.
Now, I think we must consider the street and entrance as unum quid , and if that is done the requirements of the statute have not been complied with. This is the view which was taken by the First Division of the Court in the recent case of The Hamilton Model Lodging-House Company, Limited v. Watson , 2 F. 431, and I think that we should follow that judgment.
The Court dismissed the appeal.
Counsel for the Petitioners and Appellants— Cooper. Agents— Clark & Macdonald, S.S.C.
Counsel for the Respondents— Cullen. Agents— Carmichael & Miller, W.S.