George Donald & Sons and Others v. Esslemont & Macintosh, Ltd [1922] ScotLR 88 (18 November 1922)

George Donald & Sons and Others v. Esslemont & Macintosh, Ltd [1922] ScotLR 88 (18 November 1922)

The Court held that the pursuers, as frontagers and members of the public, have a legal right to object to the construction of the overhead passage, as it would constitute an illegal alteration of the character of the street and infringe their right to light and air. The defenders had no proprietary or servitude right to the space above the street, and the administrative acquiescence of the magistrates did not legalise the encroachment. The right to light and air from the street is a pertinent of property abutting a public street, and the common interest of all frontagers and the public in the open character of the street cannot be appropriated by one proprietor for private use.

Citation
[1922] ScotLR 88
Parties
Pursuers: George Donald & Sons, Sangster & Henderson, Miss Margaret Jane M'Killiam; Defenders: Esslemont & Macintosh, Limited
Jurisdiction
Scotland
Judgment Date
18 November 1922
Procedural Posture
Civil / Appeal From Sheriff Court to Court of Session, Inner House, First Division
Outcome
appeal dismissed, interdict made perpetual
Legal Topics
Rights of Frontagers, Public Streets, Right to Light and Air, Interdict, Purpresture, Common Interest in Public Property
Property Law Public Law Administrative Law Rights of Frontagers Public Streets Right to Light and Air Interdict Purpresture +1 more

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Parties

George Donald & Sons, Sangster & Henderson, Miss Margaret Jane M'Killiam

Pursuers

Esslemont & Macintosh, Limited

Defenders

Procedural Posture

Civil / Appeal From Sheriff Court to Court of Session, Inner House, First Division

Legal Issues

  1. 1 Whether frontagers on a public street have a legal right to object to the construction of an overhead passage connecting properties on opposite sides of the street.
  2. 2 Whether the construction of such a passage constitutes an illegal alteration of the character of the street and infringes the right to light and air of neighbouring proprietors.

Ratio Decidendi

The Court held that the pursuers, as frontagers and members of the public, have a legal right to object to the construction of the overhead passage, as it would constitute an illegal alteration of the character of the street and infringe their right to light and air. The defenders had no proprietary or servitude right to the space above the street, and the administrative acquiescence of the magistrates did not legalise the encroachment. The right to light and air from the street is a pertinent of property abutting a public street, and the common interest of all frontagers and the public in the open character of the street cannot be appropriated by one proprietor for private use.

Court Disposition

appeal dismissed, interdict made perpetual

Orders

  • Perpetual interdict granted against the defenders from constructing the covered passage across Netherkirkgate.
  • Defenders' pleas-in-law repelled.