Assets Co., The pursuers reclaimed, and argued ;-The declaration relied on by No. 107. the defenders was only an indication of intention, and did not amount to an enforceable obligation. If total prohibition of shops and flats Mar. 6, 1896. had been intended, this should have been clearly expressed. This was Limited, v. the first attempt to construe a clause in a deed by a plan. The plan Lamb & did not enter the record. It was incompetent even to read an obliga-Gibson. tion written on a plan into a deed, but there was no such obligation here. The plan only shewed the building line, and although it might indicate something of character, it failed to do so with the definiteness necessary to restrictions on property. Elevations, at least, were essential, and the words on the plan were not sufficient.1 Plans were 2 only imported into a contract for the particular purpose for which they were intended, and here the plan only shewed the situation, and not the character of buildings. The tendency of the Court was to interpret strictly restrictions such as those here. Ewing v. Hunter1 was distinguishable, and did not bear on the present. It was a case of prohibition as to use, not as to building. 3 which have been granted by the superior, combined with a feuing-plan, and it seems a difficult and delicate task to gather up the conditions expressed in different words in various dispositions, and express them all in one decree of declarator. "The action in its terms relates to the whole of the lands of North Woodside which have not been feued or disponed, but the debate before me was conducted with reference to a certain part of the lands, shewn conveniently on a small feuing-plan, on which are laid down certain terraces and rows, which are now called Doune Terrace and Doune Gardens, and Carlton Terrace and Carlton Gardens. The whole of Doune Terrace and Doune Gardens has been given out and built on, and so have the western parts of Carlton Terrace and Carlton Gardens. But the eastern portions of Carlton Terrace and Carlton Gardens are still in the hands of the superior, and the main immediate purpose of this action is to ascertain the superior's rights as to building on these portions, although the conclusions of the action relate to the whole lands of North Woodside still in the hands of the superior. "The pursuers, the Assets Company, are the singular successors of the City of Glasgow Bank, and no question has been raised about their title, neither has it been questioned on either side that they are bound by the conditions in the feu-dispositions granted by the City of Glasgow Bank, and are entitled to enforce these conditions, in precisely the same manner as the City of Glasgow Bank was bound and entitled. "The defenders are all the persons who hold feu-rights of the lands of North Woodside, and they have all lodged defences founding on the clauses in their several feu-contracts. "The conclusion is for declarator that the pursuers are entitled to erect on said subjects tenements of dwelling-houses, or tenements of dwellinghouses and shops, or such other buildings as they think fit, provided that such buildings are not inferior in character and design to the houses already built on said subjects that is to say, it affirms that the pursuers are entitled to erect on the unfeued portions of Carlton Terrace and Carlton Gardens tenements which are not self-contained,-shops and buildings of any 1 Middleton v. Leslie, May 23, 1894, 21 R. 781. Keith v. Smyth, Nov. 7, 1884, 12 R. 66. Moir's Trustees v. M'Ewan, July 15, 1880, 7 R. 1141; Buchanan v. Marr, March 7, 1883, 10 R. 936; Millar v. Carmichael, July 19, 1888, 15 R. 991. Ewing v. Hunter, Jan. 12, 1878, 5 R. 439. No. 107. Mar. 6, 1896. The Argued for the defenders;-There was a valid and enforceable prohibition respecting buildings. It was validly imposed. The plan was referred to at every turn, and was intended to bind parties. plan was part of the contract, and did not only shew intention.' It was objected that the plan did not enter the record, but the purchaser was put on his inquiry as to what was in the plan, and accepted his bargain with reference to it. The words meant that the superior must abstain from doing anything else. This practically amounted to offer and acceptance. The cases shewed that the Court would not interfere with the internal arrangement of a house, but it would uphold an obligation respecting the outside character if this was clearly expressed by plan. At advising, LORD TRAYNER.-The pursuers in this action are the proprietors of certain lands situated in the west of Glasgow, known as the lands of North Woodside, and the purpose of this action is to have it declared that the said lands are free from certain building restrictions which the defenders sort, provided they reach a certain character and design. Now, seeing that the pursuers are entitled to do what they please with their own property, so far as not restricted by contract, they are, no doubt, entitled to declarator in these terms, unless they are inconsistent with the conditions in any of the defenders' titles. But if they should be shewn to be inconsistent with any of the conditions of any of the dispositions or contracts constituting the titles of the defenders, deoree of declarator to that effect cannot be pronounced, unless circumstances have intervened which make these conditions inapplicable or incapable of enforcement. "Lamb & Gibson are singular successors of Baird & Brown, whose feudisposition from the City of Glasgow Bank is No. 16 of process, and is dated 29th and 30th June 1871. I understand that their feu was the earliest given off, and it consisted of about five acres at the northern extremity of the lands of North Woodside, separated from Doune Terrace and Carlton Terrace by a road called on the record Wilton Terrace Road. "This feu-disposition contains the following declaration by the City of Glasgow Bank:-(His Lordship read the declaration above quoted). "There seems to be a question in regard to the general feuing-plan here mentioned; it seems doubtful whether it is extant, and the parties are not at one about it. But there is no doubt that the plan to which this contract relates is the reduced copy appended to the disposition No. 16 of process, and signed on behalf of the bank. The clause may be read as if no other plan had been mentioned; and I think it clear that that plan is written into the deed and forms a part of it. "Now the obligation of the superior, as regards buildings under this clause, is no more than this, that he binds himself and his successors to erect on the lands houses of the character and style indicated on the plan annexed to the feu-disposition, and I understand that these words express the only restriction on the pursuers' right to build on the unfeued land contained in the disposition. The words, however, no doubt require construction, for the clause cannot mean what the words express. They express a positive obligation to erect buildings. But it is certain that that is not what the parties meant. Nobody contends that the superior was bound to build on the lands. He was free to leave them unbuilt on, if and as long as he chose. The words must mean that, if the superior erected buildings on the lands, they should be of the character and style indicated on the 1 Deas v. Magistrates of Edinburgh, April 10, 1772, 1 Pat. App. 259. Mar. 6, 1896. maintain were imposed thereon by the terms of a conveyance executed in No. 107. June 1871 by the pursuers in favour of Messrs Baird & Brown. With regard to the defenders who derive their right from Baird & Brown, Assets Co., the Lord Ordinary has held that the alleged building restrictions are binding Limited, v. on the pursuers, and he has assoilzied these defenders. The question Gibson. argued before us, and which we have now to determine, relates only to that part of the interlocutor which holds the building restrictions binding on the pursuers, as in a question with Messrs Lamb & Gibson and Messrs Anderson, who derive their rights through Baird & Brown. The general principle of law on which the question now to be decided depends is a well-settled one, and it is this, that no restriction on the right of property is ever presumed, that any such restriction to be binding and enforceable must be duly imposed in language which is express and unambiguous, and that failing this, the presumption is in favour of liberty. If therefore the restrictions which the defenders contend for are so imposed on the pursuers' property, the restrictions will be binding and enforceable, plan. Unless the clause means that, it has no meaning at all; and that is what, in my opinion, the clause does mean. Now this clause, as SO interpreted, depends for its meaning on the plan; apart from the plan there is no building restriction at all. "But the plan is nothing but a plan of the surface. It does not indicate the character or style of the buildings by any elevation or sketch. It shews only the line of the terraces and streets; and it does not even require uniformity in the character and style of the buildings. On the line of the buildings so indicated there are the words 'for self-contained lodgings and corner tenements.' On other parts of the plan there are the same words, and on other parts the words are different. There is one space shewn as a line of houses on which are the words 'tenements and shops.' Now, it is clear that the reference to the plan in the feu-disposition is not for identification, but for obligation; and I therefore read the clause in the disposition as an obligation imposed on the superior to build no houses in Carlton Terrace or Doune Terrace except self-contained houses and corner tenements. If that be so, the question comes to be whether the declarator asked in this action is consistent with that condition or not. "I am of opinion that it is not, but is in direct contradiction of it. I think that the words 'for self-contained lodgings' import a prohibition of tenements not self-contained, and a prohibition of shops. I do not know that it can be said to be a settled point that a limitation to dwelling-houses implies a prohibition of shops. That was decided in the case of Greenhill v. Allan, 6th July 1825, 4 S. 160; but that must be regarded as a somewhat early case, having in view the nature of the question, and it is very shortly reported. In Ewing v. Hunter, 12th January 1878, 5 R. 439, a restriction to a dwelling-house was held to import a prohibition to use the house as a school. Cases were referred to in which, when detached or selfcontained buildings only were permitted, operations which converted the buildings into two-flatted tenements were held not to violate the prohibitions -See Moir's Trustees v. M'Ewan, 15th July 1880, 7 R. 1141; Buchanan v. Marr, 7th March 1883, 10 R. 936; Millar v. Carmichael, 19th July 1888, 15 R. 991. But these cases fall very far short of holding that a prohibition against any buildings except self-contained lodgings can be consistent with a declarator which would sanction dwelling-houses not self-contained and shops. On the whole, I think it fairly clear that there is a radical inconsistency between the clause in the feu-disposition to Baird & Brown and that in the conclusions of declarator. Lamb & Mar. 6, 1896. Assets Co., Limited, v. Lamb & Gibson. No. 107. if otherwise, not. Of necessity this sends us to the clause of the deed by which the restrictions are said to be imposed, and it is in the following terms:-" Declaring that we and our foresaids shall be bound, as we hereby bind and oblige ourselves and our foresaids, to adhere to the general feuingplan of our said lands, and to erect on the said lands houses of the character and style indicated thereupon, a copy whereof was signed as relative to the foresaid agreement between us and our said disponees, a reduced copy whereof is hereto annexed and signed as relative hereto, and to give effect to this condition in all feu-contracts, dispositions, and other conveyances of the plots of ground shewn on the said feuing-plan, and which declaration is also hereby declared to be a real lien and burden upon our said lands." The first observation that occurs on reading that clause is, that it expresses a direct obligation on the granters of the deed (the superiors of the subjects) to build houses on the said lands of a certain character and style. But, as the Lord Ordinary observes, that is an obligation in which there is no creditor no one can compel the superior to build anything on these lands unless he pleases. "Nobody contends (says the Lord Ordinary) that "But then it is said that circumstances have altered, and that Lamb and Gibson have now no interest, and therefore no right, to enforce this condition. In a recent action between Lamb & Gibson and the present pursuers, it was held that Lamb & Gibson were not bound by the clause under consideration, because they were creditors under the clause and not obligants; and it is said that, in consequence of that decision, tenements of dwelling-houses (I understand not self-contained) have been built on their feu. But I am unable to see how that should affect their right or interest to enforce the obligation of the contract in regard to adjoining lands. 66 Again, it is said that in the immediate vicinity large tenements have recently been built, and, among other things, workmen's houses; that the quarter has ceased to be residential; and that there is now no demand for self-contained houses in that locality. "The pursuers-naturally desirous to utilise their land to the best advantage-wish to feu it for the sort of buildings which are in request in the neighbourhood, and they maintain that all interest to insist that the houses to be built on the unfeued parts of Carlton Terrace and Doune Terrace shall be self-contained has ceased to exist. There have been cases in which the Court has refused to enforce building restrictions, as for example in Fraser v. Downie, 22d June 1877, 4 R. 942, and other cases noticed in Rankine's Land Rights, p. 419. But these have been cases in which the person seeking to enforce the restrictions has been met by a plea of personal bar, or where he has acquiesced in deviations from the building-plan. But there is nothing of that kind in this case. It is not averred that the conditions in the contracts granted by the superior have ever been infringed, and there is therefore no basis for the contention that the right to enforce the building conditions has been abandoned. The fact that buildings of a different character from those stipulated have been built on other lands in the immediate vicinity is, I think, totally irrelevant; and in this question with Lamb & Gibson there is no need to inquire into the averments about that matter. "I am therefore of opinion that the pursuers cannot prevail against Lamb & Gibson, and that these defenders are entitled to object to the decree of declarator concluded for, and to be assoilzied from the action; and it follows that the decree of declarator concluded for against them cannot be granted." the superior was bound to build on the lands. He was free to leave them No. 107. unbuilt on if and as long as he chose." If, however, there is no obligation Mar. 6, 1896. Lamb & to build at all, there can be no obligation to build of a certain character Assets Co, and style. The Lord Ordinary, however, goes on to say that the clause Limited, v. must have some meaning, and that the only meaning it can have is, that if Gibson. the superior does build, he shall only build houses of a certain character and quality as indicated on the plan, and that interpretation of the clause his Lordship adopts. I suppose the Lord Ordinary has adopted this view on the principle that where a contractual clause admits of two constructions, that construction should be preferred by which the clause will be made of some avail, rather than that which would destroy it. Against that principle I have nothing to say. But the construction so preferred must be one which the words of the clause or contract admits of, not one which is only inferred from what may in the circumstances be supposed to have been the intention of parties. Now, here, the contract as expressed is not ambiguous-the obligation is clearly expressed, but there is no one in right to enforce it. To reach the meaning which the Lord Ordinary puts upon the clause, some word or words must be read into it which are not there. For example, if the clause had said that the superior, "if he built," should be bound to erect "only" houses of a certain character-the Lord Ordinary's view might have been sustained. But it is not permissible to add words to a clause in that way. Especially when, as it stands, the clause is apparently complete. On the clause, as it stands, I am unable to give that construction or meaning to it which the Lord Ordinary has done. This is no doubt dealing very strictly with the clause, but that is what I think we are bound to do in construing deeds affecting real rights. The clause in question, as expressed, appears to me to impose an obligation to build, and not a clause restraining building except of a certain character. Even if I were to adopt the meaning of the clause which the Lord Ordinary gives to it, I doubt whether I could give it the effect which he has done. The restriction in that view of the case would be to the building of houses "of the character and style indicated' on the plan annexed to the disposition. But "character and style" are words which indicate appearance and architectural design rather than size, or use by the occupier. Now, of character and style in that sense, nothing is indicated on the plan. No doubt the plan may be said to indicate "character" by noting "self-contained lodgings and corner tenements." But a full observance of these words might lead to a somewhat curious result. One building might be a very humble brick erection of two apartments-that would be a self-contained lodging. The next building to it might be a house of two storeys in which one family might reside, the lower storey occupied as their dwellinghouse, the upper as their warehouse or workroom. This again would be a self-contained lodging, and yet, while compliance with the directions in the plan would thus be given, no uniformity of building would be observed, and the amenity of the place seriously injured. Yet the preservation of uniformity of building and amenity were the only two purposes suggested as in the contemplation of the clause. Again, the phrase "corner tenements" places no restriction on the extent of ground which they are to occupy. Accordingly, a "corner tenement" might extend indefinitely along the two |