Esslemont & Macintosh Ltd v George Donald & Sons [1922] ScotCS CSIH_4 (18 November 1922)

Esslemont & Macintosh Ltd v George Donald & Sons [1922] ScotCS CSIH_4 (18 November 1922)

The court held that the owners of property abutting a public street have a legal right to light from the street as a pertinent of their property, and that the erection of a bridge across the street by the defenders would constitute an illegal encroachment on both the public's and the frontagers' rights in the street, irrespective of whether the bridge would materially obstruct passage or light at present. The defenders had no legal right to appropriate the space above the street for private use, and the magistrates' lack of objection did not legalise the encroachment.

Citation
[1922] ScotCS CSIH_4
Parties
Defender: Esslemont & Macintosh Ltd; Pursuer: George Donald & Sons; Pursuer: Sangster & Henderson; Pursuer: Miss M'Killiam
Jurisdiction
Scotland
Judgment Date
18 November 1922
Procedural Posture
Civil Appeal / Appellate Judgment
Outcome
Appeal dismissed; interdict affirmed
Legal Topics
Rights of Light, Public Streets, Encroachment, Purpresture, Burgh Law, Frontager Rights
Property Law Public Law Administrative Law Rights of Light Public Streets Encroachment Purpresture Burgh Law +1 more

Case Brief

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Parties

Esslemont & Macintosh Ltd

Defender

George Donald & Sons

Pursuer

Sangster & Henderson

Pursuer

Miss M'Killiam

Pursuer

Procedural Posture

Civil Appeal / Appellate Judgment

Legal Issues

  1. 1 Whether owners of property abutting a public street have a legal right to light from the street as a pertinent of their property
  2. 2 Whether the erection of a bridge across a public street by owners of properties on opposite sides constitutes an illegal alteration or encroachment on the character of the street as a public thoroughfare

Ratio Decidendi

The court held that the owners of property abutting a public street have a legal right to light from the street as a pertinent of their property, and that the erection of a bridge across the street by the defenders would constitute an illegal encroachment on both the public's and the frontagers' rights in the street, irrespective of whether the bridge would materially obstruct passage or light at present. The defenders had no legal right to appropriate the space above the street for private use, and the magistrates' lack of objection did not legalise the encroachment.

Court Disposition

Appeal dismissed; interdict affirmed

Orders

  • Interdict granted against the defenders prohibiting the erection of the proposed bridge across Netherkirkgate