Grant v. City of Edinburgh and Others [1906] ScotLR 43_475 (14 March 1906)

Grant v. City of Edinburgh and Others [1906] ScotLR 43_475 (14 March 1906)

The conveyance of the common property and garden ground to the Improvement Trustees extinguished both the common property and common interest rights of the former proprietors. The restriction against building imposed in the disposition was not a valid servitude and cannot bind singular successors. The pursuer is entitled to the declarator sought, as the objector's title fails.

Citation
[1906] ScotLR 43_475
Parties
Pursuer: John Grant; Defender: Provost, Magistrates, and Councillors of Edinburgh; Defender: Incorporated Edinburgh Dental Hospital and School; Defender: John Falconer King; Defender: Governors of George Heriot's Trust
Jurisdiction
Scotland
Judgment Date
14 March 1906
Procedural Posture
Action of Declarator / Inner House Appeal
Outcome
Declarator granted in favour of pursuer; objection by Governors of Heriot's Trust dismissed.
Legal Topics
Common Property, Servitude, Real Burdens, Common Interest, Division of Property
Property Law Common Property Servitude Real Burdens Common Interest Division of Property

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Parties

John Grant

Pursuer

Provost, Magistrates, and Councillors of Edinburgh

Defender

Incorporated Edinburgh Dental Hospital and School

Defender

John Falconer King

Defender

Governors of George Heriot's Trust

Defender

Procedural Posture

Action of Declarator / Inner House Appeal

Legal Issues

  1. 1 Whether a clause prohibiting a pro indiviso proprietor from suing for division is valid against a singular successor
  2. 2 Whether a servitude non aedificandi can be imposed by a pro indiviso proprietor on common property
  3. 3 Whether the common interest of proprietors in the street and garden ground was extinguished by conveyance to Improvement Trustees

Ratio Decidendi

The conveyance of the common property and garden ground to the Improvement Trustees extinguished both the common property and common interest rights of the former proprietors. The restriction against building imposed in the disposition was not a valid servitude and cannot bind singular successors. The pursuer is entitled to the declarator sought, as the objector's title fails.

Court Disposition

Declarator granted in favour of pursuer; objection by Governors of Heriot's Trust dismissed.

Orders

  • Repels the defences stated by the Magistrates and Town Council and declares and decerns in terms of the conclusion of the summons as against them.
  • Sustains the defences of the Governors of Heriot's Trust and assoilzies these defenders from the conclusions of the summons.