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owners of the shop floor premises, including the appellants, in more than two-thirds of the whole costs.

66

JUDGES.

1924.

the proprietor" in the last clause so as to COURT include indifferently the whole proprietors of oF SEVEN the building. There is nothing in the section to suggest such a construction. On the Giuliani contrary, the last clause is directly linked v. Smith. up with the penultimate clause, and is not intended January 18, to do more than give effect to the general principle that a party who has himself occasioned expense should be liable to liquidate it. It is true that the order to take down was not made on the defenders or any of them but on the Procurator-Fiscal. That may have been a discreet course to follow so as to keep the remedial operations under single control, but it does not seem to me to affect or vary the construction of the clause in question.

In my opinion no part of the cost of the work is chargeable against the appellants, and their appeal should therefore be sustained.

The words in section 381 in which the Dean of Guild finds his warrant for holding the appellants liable in a share of the cost of the work ordered by him are these: "He" (i.e. the Dean of Guild)" may ascertain and award the expense of executing the operations against the proprietor." I think the word " proprietor I think the word "proprietor" means the proprietor of the building or the part of the building, as the case may be, on which the operations were executed because of its dangerous condition. The word, as was pointed out by your Lordship, is used three times in the section. I respectfully think, however, that it has the same meaning every time, viz. the proprietor of "the building or part of a building." The first time it is used it is clearly so, for the words are there. The Dean shall grant warrant to cite the proprietor of Lord Hunter.-The only question raised by the building or part of a building referred to in this appeal is whether it was competent for the the application. In the penultimate clause, the Dean of Guild in Glasgow to apportion against Dean may order the building or part of a build- the appellants any part of the expense incurred ing referred to in the application to be taken in the partial taking down of the buildings down or secured by the proprietor. That situated at 56 to 68 Argyle Street, Glasgow. seems to me equally clearly to mean the pro- On the assumption that this question falls to prietor of the building or part of a building be answered in the affirmative, the actual which is referred to in the order. Why should apportionment was not challenged. The apit have a less definite or wider or more general pellants are owners of shops on the ground meaning in the last clause? The word "opera- floor of the building in question. There are tions can only refer to the taking down or other proprietors of ground floor tenements securing the building or part of a building who have not appeared. The upper portions provided for by the penultimate clause. It seems to me to follow necessarily that the identical proprietor who was ordered to execute the operations is to pay for their execution.

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No doubt, in the present case, under the citing clause all the proprietors interested in the building would fall to be called as defenders, because, on the averments in the application, the whole building might have been ordered by the Dean of Guild to be taken down. The prayer of the application was alternative, either to order the whole buildings or part of the buildings to be taken down or secured or repaired. This was one of the questions which the Dean, ante omnia, had to decide. He decided, after enquiry, against the prayer to take down the whole building, and restricted his order to certain parts only. That being so, the class of proprietors became restricted to those owning the parts affected by the order; for I cannot think that the penultimate clause can fairly be read as entitling the Dean of Guild to order, the owner of a part not within the ambit of the demolition to take down other parts of the building which were. If that be so, then there does not appear to me to be any justification for extending the meaning of

of the building, which consisted of several
storeys, are separately owned. The answer to
the question depends on the effect and con-
struction of certain sections, particularly section
381, of the Glasgow Police Act, 1866.

On 15th October 1919 a petition was pre-
sented to the Dean of Guild Court of Glasgow
by the Procurator-Fiscal of that Court, in which
it was set forth that the buildings or parts of
the buildings situated at 56 to 68, both inclusive,
Argyle Street, Glasgow, appeared to be in a
dangerous state within the meaning of the Glas-
gow Police Act, 1866, or were in such a state
as to cause reasonable apprehension of im-
mediate danger to the inhabitants, and that
it was necessary that the buildings or parts
thereof should be taken down or at least
secured and repaired. The prayer of the
petition asked that a remit should be made to
one or more competent persons to inspect and
report upon the state of the buildings, that
service should be made upon the appellants
and the other owners of separate tenements
in the buildings; that the operations necessary
to render the buildings safe should be ordered
to be executed by the owners or by the petitioner,
and in the latter case that the expense of
executing the operations should be ascertained

COURT

v. Smith.

1924.

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and awarded against the appellants and the OF SEVEN other owners of the property. Following upon JUDGES. this petition a remit was made to Mr Bell, Giuliani architect, Glasgow, and Mr Brodie, C.E., Glasgow, to inspect and report. In terms of January 18, their report they find "that from the level of and including the first floor the upper floors are sagged to a very dangerous extent that the outside walls are very dilapidated, badly racked, and generally in a dangerous condition—the back wall being worse than the front one, as it has been seriously affected by a settlement at the north-west corner of the cart entrance and is bulged outwards in places.' After certain precautions are at once taken in the shape of removal of machinery and materials stored in the upper floors, they recommend that the buildings should be taken down to the level of the first floor, and, failing a thorough reconstruction being overtaken, they suggest that the tenements on the ground floor might be roofed in and made watertight. They add that "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." At a later date, 21st June 1920, the same gentlemen made a further report in which they say: "Owing to the very dangerous condition of the building we are of opinion that the use of any part of it constitutes a serious risk both to the occupants and to the general public frequenting their premises, and recommend that the occupation of the ground floor be stopped at once." On 1st July 1920 the Dean of Guild ordered the building in question to be taken down to the level of the first floor, and the two turnpike stairs to the level of the back court, and for that purpose granted warrant to the ProcuratorFiscal in terms of the statute. On the completion of the work so ordered by the Dean of Guild an allocation of the expenses incurred was made by the Master of Works. The appellants objected to the allocation on the ground that, as the ground floor was intact and required no operation at the instance of the public authorities, they should not be liable for any part of the expense caused through the condition of the flats above the street flat.

Section 381 of the Glasgow Police Act, 1866, under which the present application was brought by the Procurator-Fiscal of the Dean of Guild Court, Glasgow, contains, inter alia, the following provisions as to the procedure to be followed by the Dean of Guild: "He shall grant warrant to cite the proprietor of the building or part of a building referred to in the application. He shall, after receiving the report of the inspectors, proceed to enquire into and decide the questions raised in the application, and may

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order the building or part of a building referred to in it to be taken down or secured by the proprietor or by the Procurator-Fiscal of the Dean of Guild Court. He may ascertain and award the expense of executing the operations against the proprietor, and may also award the expenses of all proceedings in the application to any of the parties thereto."

For the appellants it was maintained that the word "proprietor" as used in the last clause referred to is restricted to the proprietor of the tenement or tenements ordered to be taken down. In my opinion this construction is too narrow and is therefore unsound. The words building " and "proprietor " proprietor" appear to me to be used in their natural and not in any artificial or restricted sense. The application was brought on the ground that the whole building was in a dangerous state, and the owners of the ground floor tenements of a flatted building are, along with the owners of the upper flats, the proprietors of the building. The result of taking down the upper parts of such a building may be to render secure the ground floor flats. It would not, however, appear to one to be equitable that in such a case the upper proprietors should not only be deprived of their properties but that they should have to pay the whole expense of giving security to the property of those who own the lowest flats. The dangerous state of the upper tenements might even arise solely from the insufficiency of the lower part of the building to bear the weight of the upper part. In themselves they might be quite secure. If an order were pronounced against such upper proprietors to take down their buildings because of their unstable and dangerous state, why should the whole expense of the work be borne by them alone, or why should it be considered anomalous that the Legislature has given power to the Dean of Guild to apportion any part of such expense upon the owners of the ground floor tenements? In the present case the Dean of Guild had to deal with an application as to the necessity for securing the whole building in the interests of public safety; and the reports obtained by him pointed to the insecurity of the building as a whole. In such circumstances I see no reason for construing the words of the clause in such a way as to make it ultra vires of the Dean of Guild to apportion any part of the expense incurred in the operations mentioned against the appellants.

It was suggested in argument for the appellants that the insecurity of the building was caused solely by the actings of the upper proprietors. There is, however, no material in the case which would justify us in coming to such a conclusion. The facts bearing upon the question as to the causes of the building being

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in the dangerous state in which it was at the time of the application, are not before us, and we are not therefore in a position to make any finding as to those causes or to apportion blame among the different proprietors of the building. The Dean of Guild who was in a much better position than we are to determine such a question of fact, inasmuch as he had a right of inspection, refrained from pronouncing any finding of fact upon this point, but inserted in his interlocutor a clause reserving to the proprietors any right of relief competent to them inter se. Perhaps I should notice that the contention of the appellants on this question of fact to which I have referred is apparently based upon one of the sentences in the first report as to the state of the building. That sentence is in these terms: "The property, which is old, was evidently erected for dwellinghouses, but is now being used for an entirely different purpose, involving the assemblage of machinery and the storage of heavy weights; while, when carrying out the consequent alterations no attempt has apparently been made to increase the strength of the floors to meet the extra loads, and the haphazard manner in which the work has been done has affected the general stability of the structure." This is, however, only one of the causes of the building being in a dangerous state. There are other passages in the reports, and particularly in the excerpts which I have already quoted, which indicate the existence of such other causes.

Reference was also made to the terms of section 398 of the Act of 1866, but that section deals with the right of relief inter se of proprietors where the whole expense of operations under the Act has been recovered from one of several proprietors jointly interested in the work involved. It has no bearing upon the question of the competence of the Dean of Guild to make an apportionment under section 381. On the whole matter I agree with the opinion expressed by the consulted judges, and think that the appeal should be refused.

Lord Anderson.-The total cost of the operations ordered by the Dean of Guild was £3193, 6s. 2d. Of this amount the Dean has ordered each of the four appellants to pay £368, 11s. 6d.—in all, £1474, Os. 6d., or nearly half of the total cost. The appellants allege, and I do not understand that this contention is disputed, that they have done nothing in connection with the use or management of their property to occasion the mischief which fell to be remedied. They therefore maintain that they are not bound to pay any of the expense incurred in remedying that mischief. They contend that the whole of that expense ought to be borne by those who caused it.

Prima facie this argument appears to me to Court be unanswerable.

OF SEVEN JUDGES.

1924.

The local Acts of the city of Glasgow confer on the Dean of Guild considerable powers as Giuliani to the expenses incurred in fulfilling orders v. Smith, issued by him for operations on buildings. January 18, Thus, by section 125 of the Glasgow Buildings Regulations Act, 1900, it is provided that certain costs may be decerned for by the Dean of Guild against such party to the process as he may determine. This enactment would seem to give the Dean an absolutely free hand in the matter of expenses, but it was conceded by the respondent's counsel that the power conferred must be exercised judicially. In the present case it is common ground that the matter in dispute falls to be decided on the terms of section 381 of the Glasgow Police Act, 1866, and, in particular, of the last clause or proviso of that section. Section 398 of the Act of 1866, founded on by the respondent, has no bearing on the case. It seems to me that, under the Act of 1866, just as under that of 1900, the Dean of Guild, in disposing of the matter of expenses, must act judicially. He must, that is to say, award expenses against those who have occasioned expense, and find those entitled to expenses who have been put to expense by the fault or remissness of others. All this is fundamental, and there is nothing in the language of section 381 to sanction an award of expenses on any other basis. On the contrary, it seems to me that it is just in accordance with those principles of equity and fair dealing that the section must be operated.

The Dean of Guild's order was for demolition of the building to the level of the first floor. It is plain from the proceedings and productions that the reason for the issue of the order was the condition of the upper flats. These upper flats had been allowed by their owners to get into a dangerous condition-partly owing to the presence of heavy machinery without compensating strengthening of the floor, partly owing to failure to keep the structure in proper repair. The prospective danger was that these upper flats would collapse and crush the the ground flat. It is to be noted that no order was pronounced by the Dean with reference to the ground flat. There is no evidence that that flat had deteriorated or that it would not have been sufficient to support the superincumbent structure had that been properly used and maintained. The appellants make this averment in their pleadings : further averred that the objector has not been called upon by the public authorities to strengthen his property, not even when the demolition order was made for the upper portions of the property, and, at the present time, the property of the objector is believed

"It is

1924.

remove the danger at their own charges. (2) It was suggested that the appellants' properties would benefit by what the Dean of Guild had ordered to be done. Their properties, it was urged, would be made more secure. This seems to me to be an irrelevant consideration. The appellants' properties would never have been insecure but for the negligent way in which the upper properties were used and maintained. (3) It was also suggested that the Dean's award was merely a temporary adjustment or assessment of expenses and that the appellants had a right of relief open to them. I do not think, however, that parties who are not plainly liable in costs ought to be put to the trouble and expense of recovering, in a process of relief, expenses which had been improperly imposed upon them.

COURT to be in such a state as to give the support to oF SEVEN the proprietors of the storey immediately above JUDGES. which at common law the proprietors thereof Giuliani could be called upon to provide." The v.Smith. respondent does not deny these averments. January 18, He pleads that they are irrelevant. It is plain, therefore, that the mischief calling for remedy was occasioned solely by reason of the inaction of the upper proprietors with reference to their properties. Why then should not they alone bear the cost of remedying the mischief which they occasioned? Why should any part of the cost be thrown upon the innocent appellants? These are considerations of equity which, I think, should have been taken into account by the Dean of Guild in exercising the power conferred on him by section 381. If they are applied the appellants must succeed. Turning now to the actual terms of section I therefore am of opinion that the conten381, it is to be noted that the word " proprietor "tions of the respondent's counsel were not occurs in each of the three last clauses. In well-founded. I am accordingly for sustaining my opinion this term has or may have a the appeal and recalling the interlocutor different signification in each clause. In the appealed against. antepenultimate clause the term applies to every proprietor whose property may be affected Counsel for the Objector, Chree, K.C., Macby the proposed operations. In the penulti-Lean; Agents, Cumming & Duff, W.S., for mate clause the term applies to each owner who has been ordained by the Dean of Guild to do something with reference to his property. What is the signification of the term in the last clause? It has been suggested that it is the same as in the penultimate clause. This may be so, but I have some difficulty in agreeing with the suggestion. It is conceivable that an order may be issued calling on an innocent proprietor to do something. It would, in that case, be improper for the Dean of Guild to mulct this proprietor in expenses although he had been the subject of an order. Suppose, for example, that the top storey is all right and the storey immediately beneath all wrong, necessitating demolition of the top storey to allow the lower to be repaired. The top storey owner would be ordered to demolish but the lower proprietor would, in my opinion, have to bear the cost. Proprietor" in the last clause means, in my judgment, every proprietor whose property has been so used or misused as to occasion the expense incurred in carrying out the orders of the Dean of Guild.

The respondent's counsel attempted to support the interlocutor appealed against on these grounds: (1) The reporters and the Dean of Guild evidently considered that the whole building, including the appellants' properties, was dangerous. There is no doubt that the whole structure was dangerous, but not by reason of anything done or omitted to be done by the appellants. It was the upper proprietors alone who had made the building dangerous, and it is, in my opinion, for them to

John K. Murray, Motherwell, and John & James
Robertson, Glasgow.-Counsel for Respondents,
Fraser, K.C., Russell; Agents, Campbell &
Smith, S.S.C., for Sir John Lindsay, Glasgow.
W. R. G.

LANDS VALUATION APPEAL COURT. (Lords Hunter, Sands, and Ashmore.)

45.

23rd January 1924.

Assessor for the County of Moray v.

Bruce.

Valuation-Value-Grass parks-Land broken up during

the war again put into grass parks and let at a certain yearly rent-Grass crop consisting principally of first, second, and third year's grasses, to produce which the landlord had expended considerable sums in seeds, labour, etc.-Valuation Committee, in consideration of this fact, valuing the subjects as ordinary agricultural land-Held that the proper value for grass parks was the rent actually received for such subjects in the condition in which they were at the time when they were let, subject, of course, to the recognised "deductions "-Duffus v. Assessor for Aberdeenshire (1919 S.C. 484) followed..

Major the Honourable Robert Bruce, of Dunphail, appealed to the Valuation Committee of the county of Moray, held at Elgin, against the following entry of the Assessor in the Valuation Roll for the county of Moray for the year 1923-24.

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The appellant claimed that the sum of £186, 18s. 2d. should be substituted therefor. The Valuation Committee fixed the valuation at £248, 10s. The Assessor expressed his dissatisfaction with the decision of the Committee and obtained a stated case for the opinion of the Lands Valuation Appeal Court.

The stated case set forth, inter alia :

The following facts were found or held as admitted: The Home Farm of Dunphail, which extends to 2481 acres or thereby, was for a number of years prior to 1916 let out in grass parks for the season, the whole subject being entered in the roll each year at a uniform annual valuation of £225.

In the year 1916 the farm was broken up for a course of cropping, part of the land being retained in the proprietor's own hands, but the greater part being let to different tenants. Each portion let was separately specified in the Valuation Roll, with the tenant's name and the rent actually paid. The total valuation of the subject entered in the roll

from 1916 to 1922 inclusive was £276.

The farm has now been run out by the proprietor into grass parks again, with the exception of a small portion in the proprietor's own occupation, which is still under crop. The grass parks, extending in all to 209 acres, were this year let for the season by public roup for a total sum of £420, 10s. 9d. The parks consisted of first, second, and third year's grass and old grass, the acreage of each description, and the price realised being as follows:

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£433

Less-Man's wages.

£50

Fences (upkeep)

50

Occupier's rates Miscellaneous

14

January 23,

16

1924.

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the Lands Valuation (Scotland) Act, 1854, which shall be taken to be the rent at which, one year with provides that the yearly value of lands and heritages another, such lands and heritages might in their actual state be reasonably expected to let from year to year, and he contended that in terms of this section he was bound to take account of the actual rents paid for the subjects. In support of his contention he quoted the decision of the Valuation Judges in the case of Duffus v. Assessor for Aberdeenshire (1919 S.C. 484) and Young v. Assessor for Deer District of Aberdeenshire (shortly reported in County Councils Association Manual, 1918, p. 38).

The Assessor referred to the terms of section 6 of

of

The respondent maintained that the valuation of £334 should be reduced by the further sum of £20, in respect of expenses of roup and occupier's rates, and also by the cost of grass seeds, and costs of cultivation in laying down land to grass, manure, drainage, etc., incurred by him or his tenants for the purpose of enabling the land to yield a crop grass. He stated that the total cost of such seeds had been £381, 5s. 7d. (being £185, 19s. in 1920; £176, 14s. 1d. in 1921; and £20, 10s. 6d. in 1922), and he requested the Committee to deduct one-third of this sum, or £127, 1s. 10d. for each of this and the next two years, by the end of which the grazing would have become of the nature of permanent grass. He, therefore, contended that the valuation of the farm should be £186, 18s. 2d. as against the valuation of £334.

For the respondent, it was argued that the letting of the grass parks was in reality a sale of the produce of the land, i.e. the grass crop for the year; that the sum realised for the parks did not represent the value of the land as a lettable subject, but was to a con

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