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1924.

COURT outwards in places." The report went on to say OF SEVEN that "the building is in such a condition that JUDGES. a serious collapse, involving the whole or part Giuliani v. the property, might take place at any moment. Smith. We recommend therefore that the strain on the January 18, upper floors be relieved at once by the removal of the machinery and materials stored in them, and the building thereafter taken down to the level of the first floor; when, failing a thorough reconstruction being overtaken, it could be roofed in and made watertight. In the event of the reconstruction of the upper floors the work will require to be carried out in such a manner as not to put any weight on the existing founds or on the portions of the main walls allowed to remain. This could be done by carrying these floors and the new walls on steel stanchions and beams-the stanchions coming from the level of the basement." As the Dean of Guild found in his opinion, "the building as a whole was a dangerous one.' As a whole, and in every part, it was in danger of crumbling to the ground. In referring to the problem of reconstruction, the reporters no doubt had in view the provisions of the fourth of the sections of the Act dealing with dangerous buildings, according to which, in the event of the proprietors failing to agree about reconstruction, the property has to be put to the hammer by the Dean of Guild. It is evident that in the view of the reporters the condition of the ground floor and its foundations made the agreement of the appellants with the other "proprietors" an indispensable condition of any reconstruction as an alternative to sale. In fact, the ground storey-as the ground storey of a five-storey building-was, in itself, so dangerous as to be incapable of performing its function as such.

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in the section for the view that the Dean of
Guild Court is to proceed by entertaining and
deciding questions of liability for relief, or for
damages, arising out of the civil relations of
persons interested in properties which adjoin
each other either vertically or laterally.
Besides, the definition of the word " proprietor
must be kept in mind in this connection; for
the "proprietors" concerned under section 381
are not necessarily the persons between whom
alone such questions could be decided. The
fact that it was the overloading or misuse of
the upper floors (by the present " proprietors
of those floors, or what is just as probable-
by predecessors of theirs) which had so damaged
the walls of the ground floor as to make them
unfit safely to perform their proper function
of support for the upper floors (even though
the latter, on reconstruction, were used with
every care and propriety) is thus irrelevant to
any question which the Dean of Guild had to
decide.

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In the next place, the appellants say in Objection 6 that they "have not been called upon by the public authorities to strengthen their property, not even when the demolition order was made for the upper portions of the property"; and they contend that therefore they ought not to have any part of the expense of executing the operations awarded against them. It is quite true that they were not called upon to execute any operation; but neither were any of the "proprietors" of the building so called upon-except indeed to remove themselves and their property from it; and this order was equally made upon the appellants as upon the other proprietors or rather occupiers. The order and warrant for demolition was given to the Procurator-Fiscal; and it The recommendations of the reporters were is difficult to see how any other procedure would carried out by order and warrant of the Dean be practicable in any case of a plurality of of Guild to the Procurator-Fiscal, and the proprietors," other than joint owners. building was taken down to the level of the first building which is dangerous (as a whole and in floor. After the operations had been exe- every part of it) is to be made the subject of cuted the Dean of Guild, proceeding under the operations with a view to safety, and if the sixth subparagraph of section 381, ascertained carrying out of these operations is to be comthe expense and awarded it against the mitted to the persons defined in the Act as proprietors" of the whole building in accord-" proprietors," some agreement or concert ance with a scheme of allocation based on rental.

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among all of them must (in most, if not in all, cases) be an indispensable condition of the execution of those operations, even although they are not designed to involve direct physical interference with the whole of the dangerous structure. Suppose the building in the present case had consisted of only two storeys, and that the two storeys were owned and occupied by two separate owners. The supposition is designed to exclude the complications arising from the definition of "proprietor" in section 4 of the Act. In that case-apart from considerations arising from the dangerous condition

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1924.

of the whole building-the owner of the upper reconstruction. Another class of cases may COURT storey might have taken down and reconstructed be illustrated by figuring the case of a building OF SEVEN JUDGES. it to suit his own convenience, by operations whose founds were insecure, to the effect of conducted in suo, and independently of any rendering the whole building reared upon them Giuliani agreement or concert with the owner of the dangerous. Underpinning might make the V. Smith. ground storey. But if, in the general interest, founds (and consequently the whole building) January 18, the safety of the whole building requires that secure, and thus remedy a condition of imminent the upper storey should be removed on the danger shared by every part of the building. one hand to anticipate its own collapse, and on If the appellants' contention were well founded, the other hand to prevent the ground storey only the "proprietors" of the upper floors from being crushed under a superincumbent would be liable in the first class of cases only weight which it is its proper function to support the "proprietors of the ground floor would -a very different set of considerations comes be liable in the second. The incidence of into view-considerations of general hazard, liability, in short, would fall not on the or even peril, which, in a practical aspect of proprietor" or proprietors," the dangerous the matter, such as that upon which section 381 condition of whose properties made the operaproceeds, might well require the Dean of Guild tions necessary, but on those of them whose (in the event of his electing to direct his order properties were by the mere accident of the and warrant not to the Procurator-Fiscal, but particular circumstances which defined the to the proprietor") to direct such order and limits of the operations required for the safety warrant to the owners of both storeys. No of the whole building the subject of direct doubt such a case is exceedingly unlikely to interference. It is no doubt true that, legally occur; for, especially in the case of operations regarded, a flatted tenement whereof the various so hazardous as those required in dealing with storeys are held in several ownership consists a structure which has been allowed to become of independent strata of property with vertical dangerous as a whole, an order and warrant as well as lateral boundaries; yet, practically to the Procurator-Fiscal is obviously preferable considered (and partly also legally considered), to an order on a plurality of owners, or of the security of any building erected within the "proprietors." The successful execution of boundaries of any of the upper strata is entirely such an order must be dependent on the dependent on the support upon which it rests sufficiency of extraordinary precautions con--if that support is dangerous, the building certed between people whose interests might not coincide.

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which rests upon it is dangerous also, be it
never so carefully built, managed, and used.
It is no new discovery that the disadvantages
of vertical contiguity are in some respects more
acute than those of lateral neighbourhood.
To correlate the incidence of liability with
the "proprietorship" of any part of a building
which is dangerous, as a whole and in every
part, provides a much more intelligible, and a
perfectly definite rule, which is in accord not only
with the strict construction of section 381, but
also with the general scheme and purpose of
that enactment.

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Broadly stated, the contention of the appellants is that the liability for the expense of operations ordered to be executed under section 381 upon a building the whole of which was (as in the present case) dangerous, should be restricted to the "proprietors" of such part or parts of it as may be directly interfered with by those operations. It is a powerful objection to this contention that, if well founded, it would put the incidence of liability in such cases at haphazard. For circumstances are infinite in their variety, and there must be a great number The appellants also say in Objection 6 that, of cases in which the operations-whether by at the present time, the property of the way of demolition or otherwise-necessary to objectors is believed to be in such a state as to ensure safety in the case of a building the whole give the support to the proprietors of the storey of which is dangerous, do not extend to the immediately above which at common law the whole building. The present case presents an proprietors thereof could be called upon to example of one class of such cases. The walls provide." As printed, this in unintelligible. of the ground floor were too weak to support If what is meant is that the walls of the ground the upper floors, and in these circumstances floor are strong enough to support one upper the ground floor was a danger to itself as well storey but not five, the statement is neither as to the upper floors which were also dangerous relevant nor consistent with the fact, ascertained in themselves. The demolition of the upper by the Dean of Guild on remit, that it is not floors not merely avoided the danger of their possible to put "any weight on the founds own collapse, but (by relieving the walls of the or on the walls of the ground floor allowed, ground floor from the weight they were bound-pending reconstruction, to remain in situ. but were not able, safely-to support) enabled These were the only objections to the Dean them to stand meanwhile in security, pending of Guild's award urged at the hearing before

COURT

JUDGES.

1924.

seven judges; and if the opinions above ex- subject to construction. On the best conOF SEVEN pressed are sound the objections fail. sideration which I can give to the matter, and having listened attentively to two debates on the subject, I am of opinion that "the proprietor "referred to in the last paragraph of section 381 is the proprietor upon whom in point of fact an order to take down or secure property has been pronounced by the Dean of Guild. I think that the clue to the riddle is to be found in the penultimate paragraph of section 381. It empowers the Dean of Guild to "order the building referred to in it (the application) to be taken down or secured by the proprietor or by the Procurator-Fiscal." Now, leaving the Procurator-Fiscal out of consideration for a moment, it is plain that one proprietor cannot be called upon to take down or secure the building of another proprietor. That must be done by the proprietor of the building himself, and the order must therefore be against him. On the other hand, when the work is done by the Procurator-Fiscal, it is done by him as representing, and on behalf of, the proprietor or proprietors concerned. That variation in procedure, in my view, is fortuitous, and the criterion of liability is not thereby affected. So much for the penultimate paragraph of the section. Then we come to the last paragraph, which provides for awarding the expense of executing "the operations against the proprietor. I enquire what operations? Surely those referred to in the penultimate paragraph of the section. In other words, the words such proprietor" might, with advantage to the clarity of the provision, have been substituted in the last paragraph for the words the proprietor. I do not think that the statute provides or even contemplates the imposition of liability for expenses upon a proprietor whose property, like that of the appellants, remains intact, is not the cause of the mischief, is not in itself unsafe, but is rendered unsafe merely by the condition of the upper floors of the building. The opposite view would involve that innocence equally with guilt may be penalised. I should hesitate long before reaching such a conclusion. But it is not necessary to reach it. The appellants' contention appears to me to be in accord both with common sense and equity. Indeed, I should require to find very clear statutory sanction for the opposite contention, and I can find none.

Giuliani v. The Lord Justice-Clerk (Alness) [after the Smith. foregoing narrative proceeded].-The question January 18, which we have to decide is-Were the appellants properly included in the allocation referred to? They maintain that they were not. They say that, as their property was not touched by the order made by the Dean of Guild, they are exempt from liability. They protest against being called on to share the cost of repairing a building which is not theirs. I may add also that I think it clear that, in fact, the walls and roof of the appellants' property were untouched by the order pronounced, and that these were not interfered with in the course of its execution. I may add that the appellants could not desire a better credential regarding the state of their property than that it was expressly exempted from the holocaust which the Dean of Guild's order involved.

Now, the liability of the appellants to pay a part of the cost of the operations ordered by the Dean of Guild depends on the construction to be placed by the Court on section 381 of the Glasgow Police Act, 1866. That section is the measure at once of the rights of the Dean of Guild and of the liability of the proprietors. Unless it authorises the Dean of Guild to saddle the appellants with a share of the cost referred to, he can invoke no other authority. There was a faint attempt made by the respondent at one stage of the argument to pray in aid the provisions of section 398 of the Act of 1866; but in the course of debate the contention was abandoned, and it was admitted that that section relates only to the working out of rights of relief, after the original liability of parties has been determined. That, indeed, is clear from the heading of the fasciculus of clauses among which section 398 appears.

It becomes necessary then to examine with care the provisions of section 381. Do they or do they not authorise the Dean of Guild to mulct the appellants in part of the cost of taking down a building which does not belong to them, but which rests upon their property? The liability for such costs is dealt with in the last paragraph of section 381. The Dean of Guild is there authorised to "award the expense of executing the operations against the proprietor." Are the appellants proprietors in the sense of that provision? If they are, they may competently be made liable by the Dean of Guild in a share of the cost referred to. If they are not, they are free from liability.

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Now the words "the proprietor," in the context in which they appear, are not, to say the least of it, self-explanatory. They are They are

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It was suggested in argument for the respondent that the words the proprietor in the last paragraph of the section refer back to the words "the proprietor" in the fourth paragraph, which provides " he shall grant warrant to cite the the proprietor of the building or part of the building referred to in the application." The suggestion is, I think, inadmissible.

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JUDGES.

1924.

To equiparate liability to citation with lia-jurisdiction which the respondent invokes is COURT bility for expenses at the end of the day appears purely statutory. The section may not be, oF SEVEN to me illogical and unmaintainable. In the nay, is not, a model of lucidity. But I think fuller knowledge possessed by the tribunal, it lays down with sufficient clearness a working Giuliani after the appropriate investigation has been rule which it is our duty to apply. The rule v. Smith. pursued and completed, it is, I think, obvious may, in conceivable circumstances, bear hardly January 18, that some of the proprietors who have been on individuals. Section 398 was, I think, convened in the process originally may ulti-designed to alleviate, if not altogether to avoid, mately be exempted from liability for the cost that hardship. But, even if that section fails of the operations. in its purpose, the rule, I think, being clear, must receive effect. If equity is affronted thereby, although I may say that I am unable to see why in the present case it should be, then the remedy must be sought not in the Law Courts but in Parliament.

It was further suggested by the respondent that, inasmuch as the appellants' property has been benefited by the operations referred to, it is reasonable that they should bear a share of the cost. That the appellants' property has been rendered safer by the demolition of the upper floors of the building I do not for a moment doubt. But I can find no statutory warrant for the view that for that reason alone they are liable to bear a part of the cost. Such a criterion of liability is not suggested, far less expressed. The argument might be maintained with just as much or just as little force by a proprietor in the adjoining building. The argument may be tested in this way. Let us suppose that the outer wall of the appellants' shops had been partially destroyed by fire or by some other agency. Let us further suppose that the security of the upper floors of the building had been thereby affected. Let us also suppose that an order had been made by the Dean of Guild on the appellants to repair their property. Could it be said that the proprietors of the upper flats would be liable to share in the expense of that operation? To that question the respondent's answer must surely be "yes," for the contention is not materially different from his own. The view seems to me to be extravagant and unwarranted by section 381.

For the reasons which I have stated I am of opinion that the Dean of Guild possessed no statutory authority for the order which he pronounced against the appellants, and I accordingly think that their appeal should be sustained.

The Lord President intimated that Lords Skerrington and Cullen concurred in the opinion read by him.

Lord Ormidale.-This appeal is taken against an interlocutor of the Dean of Guild, Glasgow, approving of an allocation by the Master of Works of the cost of taking down to the level of the first floor a building situated at 56 to 68 Argyle Street. The appellants are proprietors of shops on the street floor of the building, and no operations were executed on their premises. The total cost of the work was £3193, 6s. 2d., and under the allocation the appellants are liable to contribute—each of them-£368, 11s. 6d., in all £1474, 6s. As the premises of the appellants are not said to have presented in themselves any elements of a dangerous nature, and, at the conclusion of the demolition, will remain in statu quo, it is difficult to understand on what ground this liability for a share of the cost should be imposed upon them by the Dean of Guild. The warrant for so doing is said to be found in section 381 of the Glasgow Police Act, 1866.

It is true that section 398 provides a right of relief inter se of the proprietors in certain circumstances, and that the Dean of Guild in his interlocutor has reserved this right of relief to the proprietors affected by his order. But, so far as the appellants are concerned, that appears to me to be an empty right. The value of the right of relief conferred upon them depends, The proceedings in the Dean of Guild Court I think, upon their establishing that the danger were initiated by an application at the instance which led up to the operations referred to was of the Procurator-Fiscal in which he avers that created by the misuse by the upper proprietors" buildings or parts of buildings situated at 56 of their premises. It may be difficult, if not impossible, for the appellants to establish this. If that be so, the right of relief conferred by the statute and reserved to the appellants by the Dean of Guild is quite illusory. In short, if the contention of the appellants is sound, it must, if it is to avail them anything, be sustained here and now.

Let me reiterate that we are concerned only with the interpretation of section 381. The

to 68 Argyle Street, consisting of basements
and five storeys and attics in height, occupied
as shops on the ground floor and warehouses,
factories, and workshops on the upper floors,
appear to be in a dangerous state, and that it
is necessary that the said buildings or parts
thereof should be taken down or at least
secured and repaired." A remit is then
craved to men of skill to inspect and report
on the state of "the building or parts thereof

1924,

178

REPORTS-1924, SCOTS LAW TIMES.

COURT which appear to be dangerous, and to grant OF SEVEN warrant to take down or secure the said JUDGES. buildings or parts of said buildings if reported Giuliani to be dangerous." A remit was made to an v. Smith. architect and engineer. A report was lodged January 18, by these gentlemen on 11th November 1919 to the effect that the general stability of the structure, originally erected for dwellinghouses, had been affected by the assemblage in the upper storeys of machinery and the storage of heavy weights, without any attempt being made to strengthen the floors to meet the extra loads and by the haphazard manner in which the work had been done. The reporters therefore recommended that the strain on the upper floors be relieved at once by the removal of the machinery and materials stored in them, and the buildings thereafter taken down to the level of the first floor. The report does not indicate that the street floor is in any way defective. It is not suggested that it should be taken down, secured, or repaired. All that appears from the report is that if the upper floors collapsed the street floor might become involved in the consequent disaster. It is not, in terms, reported to be dangerous.

Following on this report, the Dean of Guild, by interlocutor of the 21st November, ordered the removal of the machinery, etc., from all the floors above the street or shop floor, and, further, ordered the building to be taken down to the level of the first floor, and granted warrant to the Procurator-Fiscal in terms of the statute. After the machinery, etc., were removed, a second report was obtained on a remit which the reporters understood was to inspect the whole premises and report upon (1) the best means of taking down the buildingand I take that to mean to the level of the first floor as ordered by the Dean of Guild-and (2) when it would be necessary for the occupants to remove during the taking down of the property. They recommend that the occupation of the ground floor be stopped at once, but, again, this not because of any inherent vice in these premises, but only because of the very dangerous condition of the upper floors and, as I understand the report, the delicate and difficult nature of the work of demolition. Thereafter, on 1st July 1920, the Dean of Guild of new ordered the building to be taken down to the level of the first floor, and further ordered, inter alios, the occupants of the shop floor to remove. In my opinion it is important to note that this order of removal is the first and only order which affected the appellants or their property, and it was made, not because of anything defective in their property which was calculated to endanger either themselves or the public, but solely

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because of the unsafe condition of the upper part of the building. A similar order of removal might have been pronounced, in very slightly different circumstances, against the proprietors of adjoining buildings. The inference which I draw from the reports and the interlocutors of the Dean of Guild is that the Dean, adopting the alternative view presented by the Master of Works in his application, came to the conclusion that as was the fact not the whole building but only parts of the building 56 to 68 Argyle Street were dangerous, viz. the upper storeys, and that the shop floor required neither to be taken down, nor secured nor repaired in order to make it safe for the lieges. The proprietors of the shop floor may have derived an indirect and incidental benefit by the removal of a danger evoked by the misuse of their premises by the upper proprietors, but I venture to think that this consideration is not relevant to the issue. Their property may have been rendered more secure, but it was not secured in the statutory sense or by any order made under the statute to secure it; and it could not be, as it had not been reported dangerous. The Dean of Guild says that the building as a whole was dangerous. popular sense that may have been so, but not in the sense of the statute. As the Dean of Guild himself indicates very clearly, the danger to the whole building was be found in the dangerous condition of the upper portion of the property. In other words, a part of the building was dangerous and required to be taken down, and the danger vanished when it was taken down. A part was not dangerous. It was not reported to be so. It did not require to be taken down or secured, or even repaired. This appears to me of vital importance when one comes to consider the paragraph or clause of section 381 which ascertains the proprietor who may be found liable for the cost of the work which has been ordered to be executed by the Dean of Guild. Reference was made to section 398, but any argument founded on it was abandoned in the Second Division, and very little weight was attached to it by counsel in the hearing before this Court. In my opinion it has no bearing at all on the construction of section 381. It may have been in the mind of the Dean of Guild. His opinion (at p. 24 of the appeal) suggests this, and I should be inclined to surmise that it was also in the mind of the Master of Works when he framed his allocation. Otherwise I cannot understand how, without reference at all to what, in any view, was the very peculiar condition of this building and the real evidence of the source of danger, he could have come to select the Valuation Roll as the basis of calculation and so mulct the innocent

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