Nicholson v. Glasgow Blind Asylum [1910] ScotLR 272 (23 December 1910)

Nicholson v. Glasgow Blind Asylum [1910] ScotLR 272 (23 December 1910)

There was no competition of title; the Magistrates erred in sisting and dismissing the petition. The Dean of Guild Court was competent to decide the dispute over enforcement of building restrictions. The titles contained sufficient indication that the restrictions were intended to benefit a community of proprietors, allowing for evidence to be led on the issue of mutual enforceability (jus quaesitum tertio). The case was inadequately prepared for a final decision, so it was remitted for further inquiry and decision by the Magistrates.

Citation
[1910] ScotLR 272
Parties
Petitioner/appellant: William Nicholson; Respondents/objectors: Managers of the Glasgow Asylum for the Blind
Jurisdiction
Scotland
Judgment Date
23 December 1910
Procedural Posture
Appeal From Dean of Guild Court (petition for Lining) / Inner House, First Division, Court of Session
Outcome
Interlocutors of the Magistrates recalled; cause remitted to Magistrates to proceed as accords; no expenses due to or by either party in this Court.
Legal Topics
Real Burdens, Building Restrictions, Title to Enforce, Jus Quaesitum Tertio, Dean of Guild Jurisdiction, Competition of Title
Property Law Real Estate Local Government Real Burdens Building Restrictions Title to Enforce Jus Quaesitum Tertio Dean of Guild Jurisdiction +1 more

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Parties

William Nicholson

Petitioner/appellant

Managers of the Glasgow Asylum for the Blind

Respondents/objectors

Procedural Posture

Appeal From Dean of Guild Court (petition for Lining) / Inner House, First Division, Court of Session

Legal Issues

  1. 1 Whether the Magistrates erred in sisting and dismissing the petition for lining on the ground of competition of title
  2. 2 Whether the respondents had title and interest (jus quaesitum tertio) to enforce building restrictions in the petitioner's title
  3. 3 Whether the Dean of Guild Court was competent to decide the dispute

Ratio Decidendi

There was no competition of title; the Magistrates erred in sisting and dismissing the petition. The Dean of Guild Court was competent to decide the dispute over enforcement of building restrictions. The titles contained sufficient indication that the restrictions were intended to benefit a community of proprietors, allowing for evidence to be led on the issue of mutual enforceability (jus quaesitum tertio). The case was inadequately prepared for a final decision, so it was remitted for further inquiry and decision by the Magistrates.

Court Disposition

Interlocutors of the Magistrates recalled; cause remitted to Magistrates to proceed as accords; no expenses due to or by either party in this Court.

Orders

  • Recall the interlocutors of the Magistrates dated 1st March 1910 and 20th January 1910.
  • Remit the cause to the Magistrates to proceed as accords.