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PROCEEDINGS AGAINST THE Magis- those possessing them, could not be

TRATES OF EDINBURGH, RELATIVE held by implication as taking them

The answers of the Magistrates and

the other persons concerned briefly Court of Session-Second Division. were

Ist, That the town had never given This case, which has occupied so up their right to build on the south much of the time of the Court, and side of Prince's Street, as appeared which has excited so much interest in from a reference on the original plan the public, was advised by the Second to an Act of Council, containing a deDivision of the Court, on Tuesday claration to that effect, and from other the 3d of February, after long written documents. pleadings, for the complainers, and 2d, That the servitudes founded on for the Magistrates of Edinburgh and were of the most trifling kind; and, their feuars and sub-feuars, and after 3d, That the Act of Parliament in hearing counsel on four several days. question must be judged of according to

The pleas on which the complainers its intent, which was obvious, and that seemed mainly to rely are

the only remedy was by applying for 1st, That, according to the original an act to repeal it. plan of the New Town, no buildings In the course of the pleadings, the should be erected on the south side of counsel for the complainers stated, Prince's Street, which is delineated on that it was a matter of indifference, that plan as pleasure ground.

whether an interdict was or was not 2d, That, after the right of the granted, and he produced printed coTown to build on the south side of pies of summonses for having the rights Prince's Street had been challenged, of the complainers declared in due in 1772, the town and the feuars had form, and concluding for demolition of submitted the question to the late Sir the buildings. David Rae, Bart. (Lord Eskgrove,) Various subordinate pleas, respectwhose decreet arbitral ascertained how ing the want of regular notices of the the ground to the south of Prince's intention to apply for the act, the hoStreet, and between the Bridge and mologation or acquiescence of the the Mound, was in future to be kept ; complainers till the buildings were far and that by virtue of this decreet, and advanced, &c. were also brought forof declarations in the charters of the ward. feuars, that this ground should remain The Court seemed generally of opi. as described in the decreet, the com- nion, that the answer of the Magis. plainers had acquired servitudes, which trates to the first plea was well foundwere invaded by the operations com. ed, but all the Judges seemed clear, plained of. And,

that the servitudes acquired by the 3d, That the Act of Parliament re- decreet arbitral and charters following cently obtained, authorising the erec. its date, and containing reference to it, tion of the buildings in question, as it were not taken away by the Act of neither recognised those servitudes, nor Parliament authorising the buildings. provided for the indemnification of The Court accordingly passed the bills

* See the origin of this case in the volume for 1817.-App. p. 180-7.

of suspension-Lords Glenlee, Banna. he would say, they most undoubtedly tyne, and Robertson voting for the were not. But an act of Parliament judgment, and Lords Justice Clerk had been obtained, and the question and Craigie voting for refusing the occurs, what is to be the effect of this bills, on account of the acquiescence act of Parliament ? Now, upon this of the complainers for so long a pe- question, though he could not entireriod.

ly agree with Mr Cranstoun that the Both bills of suspension are thus Act of Parliament had no binding force, passed, but without interdicts, that except in relation to those who were the question may be deliberately tried. parties to it, yet his opinion was, that

[The following notes of the opi- it being unquestionably a private and nions of the Judges have been publishe not a public statute, it could not take ed.]

away any rights of persons who were Lord Robertson doubted exceed. not parties to it by implication. If ingly whether there was any servitude the statute had expressly

declared that constituted in favour of the Prince's the servitude created in favour of the Street feuars over the ground betwixt Prince's Street feuars was to be abated that street and the North Loch, by for the purposes of the act, then he the reference made to Craig's plan, in conceived effect must be given to that the original feu contracts, or bargains abatement, notwithstanding that the for feus, because, upon the face of Prince's Street feuars were no parties that plan, reference was made to that to the act. But the act said no such act of council, whereof the 6th clause thing, and since the servitude was not implies at least, if it does not express- expressly abated by the act, he conly reserve to the town the right of ceived it remains still in full force, unbuilding on that ground, providing less it has been lost by either direct or only that a 96 feet wide street shali tacit acquiescence of the feuars them. be left. Neither the decision in Deas selves in its abatement. Now what case, nor Lord Mansfield's speech, was the consequence of the subsistence supported the plea of the suspenders of this servitude? Why, the conseclaiming such servitude, and if that quence of it is, that the Magistrates (which seemed mainly relied on in the of Edinburgh could not make the road, bill

, though not in the subsequent on the making of which their power pleadings) were now the best or only, to erect the buildings complained of plea of the suspenders, heratherthought is made by the act of Parliament itself he would be for refusing the bill. But entirely to depend. Now, as he was that is not the case ; Lord Eskgrove's not prepared to say that there had decreet arbitral established one clear been such an acquiescence on the part and indisputable servitude, viz. that of of the suspenders as amounted to a a pleasure ground to the heirs and suc- dereliction of their servitude, he thought cessors of the submitters, on the ground it his duty to pass the bill of suspenwest from Trotter's warehouse to a sion, in order that the rights of the point a little to the east of Hanover parties might be deliberately investiStreet, and upon that servitude his gated. But even if the suspenders difficulty about refusing the bill now had not waived their demand for interrested.' If the question had been, dict, he would have been clear that no whether the Magistrates of Edinburgh interdict ought to be granted in hoc were, on their own authority, entitled statu, the buildings having got to such to disregard that servitude, and make a height before the interdict was aproads through that piece of ground, plied for.

Lord Craigie concurred in most of Street, or to lay down a single house the observations that had been made to the west of the Bridge, on that side by Lord Robertson, but he was led to of the street, was a disgrace to the draw a very different conclusion from Magistrates (here symptoms of applause them. He did not think that the ser- were manifested by the audience, which vitude the complainers, or some of the Lord Justice Clerk immediately rethem, had on the ground to the west pressed,) and if the feuars of that day of Trotter'8 gave them such a title to had not a legal title, under Craig's oppose these buildings now that the plan, to stop

the proceedings of the Act of Parliament was passed, that the Magistrates, which might perhaps be Court ought to pass the bill. And doubtful, they ought to have fallen on even if the complainers had a title, he some plan to make it the interest of denied that they had any substantial the Magistrates to have that space interest to maintain this plea. It must open ; but the Court must decide the be a very substantial interest, indeed, plea of the present suspenders upon its that would induce the Court to pass a own merits. He agreed with Lord bill which was to have the effect of Robertson that the suspenders, or destroying 40,0001. worth of property. some of them at least, had both suffiHe did not find himself called upon, cient title and a clear interest to comsitting there, to give any opinion upon plain ; but whether they had done any a question of taste ; what he was to thing to take away their title, or pass decide upon, was the rights and the from their interest, this was perhaps a interests of the parties ; and he denied doubtful matter, and he was, therefore, that the loss of a view, or the alleged of opinion the bill ought to be passed, ugly appearance of these buildings, to try the question of right. 'As to was such an interest as could entitle the interdict, from the length the the suspenders to come to this Court, houses have already got, it seems im. and call on their Lordships to destroy proper to grant it; and that part of so much of the property of respectable the prayer of the bill had accordingly persons, who had bona fide expended been waived. their money in these buildings. If Lord Glenlee concurred in the opithey had ground to complain, they nion which had been so perspicuously were bound to have come forward be- delivered by his brother, Lord Robert. fore the large pile of building in St son, in regard to the servitudes and Ann's Street was taken down. It was the nature and limited operation of the absurd to say that the suspenders were Act of Parliament. But he could bave not apprised of what was going on- no doubt, that however clear the right they must not stultify themselves so as and interest of the complainers to into say that they could not see the effect sist on this suspension might have of these operations. Upon the whole, been, yet that a certain acquiescence, he was clear the bill ought to be re- on their part, in the operations carried fused.

on under the pretended authority of Lord Bannatyne regretted exceed- this Act of Parliament might bar ingly that the gentlemen who took up them, personali exceptione, from prothe cause of the feuars in 1772, had secuting that right; therefore, the not persevered in a more manly man. question came to be, whether there ner than they had done. He regret. had been such an acquiescence or not? ted exceedingly that they had come to Now, he was certainly not prepared any compromise, and said, the pro- to say that the toleration of the acts posal to build in front of Prince's of making the road opposite to St Andrew's-street, and pulling down the Prince's-street, by Lord Eskgrove'sdehouses in St Ann's-street, and even creet arbitral. By that decreet arbi. the erection of the new buildings to a tral, there was also a servitude created certain height, was such an acquias to the height and form of the range escence as ought to cut off the right of houses in Prince's-street. It was of the suspenders to enforce their sera expressly declared that these should vitude. It was a very serious ques- be finished according to a plan ; and tion, and one on which prudent men if they were either voluntarily or by would deliberate and consult, and be accident thrown down, it was, in his well advised, before they took steps, opinion, quite clear the proprietors what degree of encroachment on their would not be entitled to rebuild them rights they should submit to for peace upon any other plan than that which sake, particularly if the encroachment was sanctioned by the decreet arbitral. was said to be made under the autho. But not so the servitudes claimed as rity of an Act of Parliament. It was to the houses in St Ann's-street ; not till after these buildings got to a there is no reservation expressed in the certain height that their injurious da- decreet arbitral respecting these. One ture, the deformity they have brought house is ordained to be dressed up de upon the town, particularly from the cently, and the others are allowed to unseemly appearance of the back part, be built, both at the sight of the perwhich happens to be the part most sons named in the decreet arbitral ; seen, could be perceived ; and, if the but there is no restriction as to height challenge was brought in due time af. or any thing else. And as to the street, ter the evil became apparent, he ap. there is nothing said about it, except prehended that was all that was neces- that the west side of that street is the sary or could be required. Upon the point taken in describing the measure. whole he thought the bill ought to be ment for calculating a space on which passed.

buildings were to be allowed to the Lord Justice Clerk coincided with east of Hanover-street. Now as to wbat had fallen from most of their the servitudes that were constituted, lordships. He was clear there had his lordship was quite clear they had been nothing decided by the remit made not been taken away by the Act of by the House of Lords in the case of Parliament. The question as to the Deas ; neither did the decisions in effect of Acts of Parliaments, of the Butterworth's case, and others refer- nature of this act, was solemnly decired to, bear on this case. He must ded within these few years in a case to also say, his mind was quite made up which he was surprised that none of that there was no servitude against the counsel had referred the case of building in front of Prince's-street Haig and the Magistrates of Edinconstituted by Craig's plan. The re- burgh. In that case it was pleaded ference to the Act of Council com- (his lordship read from the printed pletely shewed the right of the ma- papers) that the town had three difgistrates to build upon that ground, ferent Acts of Parliament, not only without any other reservation, than allowing them to drain the Meadow, that the houses should be at the dis- but exactly prescribing the way in tance of ninety-six feet from the north which it was to be done. The conseside of that street. But he was not quence of draining the Meadow in less clearly of opinion, that a servitude that way would have been to carry off of great value and importance was the water which supplied Lochrin discreated in favour of certain feuars in tillery, Mr Haig therefore complained of the intended operations of the The Lord Justice Clerk took ocmagistrates by bill of suspension and casion, in delivering his opinion, to alinterdict, and the magistrates had three lude to paragraphs in the newspapers, different Acts of Parliament, every one as convincing him that there were not more clear and explicit than another; any sufficient grounds for the charge yet because these acts did not take of concealment of the purpose of the away Mr Haig's servitude, nor pro- act, which had been brought against vide a compensation for it, the Court the magistrates and the other parties not only passed the bill, but after a concerned. His lordship at the same proof and hearing in presence, decla. time admitted, that it had occurred to red the interdict perpetual. Had the him as strange that the House of complainers in this case, therefore, Commons, when dispensing with nocome forward in due time to complain tices not having been given as usual at of the operations by which their ser- Michaelmas, had authorised notices of vitude was invaded; had there been a more limited kind only in one newsno acquiescence on their part in those paper ; and he also admitted, that if operations, his lordship would have he had been one of the Committee of had no doubt in this case ; for though the House who received the returns to he did not think Lord Eskgrove's de- these notices, he was by no means sure creet arbitral created any servitude on if he would have held them as a suffi. the building in St Ann's-street, yet cient compliance with the orders to give indirectly, through the means of their intimation of the purposes of the act. undeniable right, to have prevented the magistrates from making the new We shall here introduce the close of access to Canal.street, they might have the proceedings in this remarkable case, completely frustrated the intention of which took place at a meeting of the altering that street. It was not until inhabitants, held on the 22d May, to after a new access was made, that the receive and consider a report from the magistrates had any right to alter St committee, recommending a comproAnn’s-street ; and if the complainers mise with the Lord Provost and Town had prevented the making that road, Council, and with the feuars and subit would have followed that the build. feuars of the buildings in question. ings complained of never could have Sir James FERGUSON, Bart. of been erected. But the inhabitants of Kilkerran, in the Chair. Prince's-street, or the present sus- Mr Francis Jeffrey (as a member of penders, did not complain of that road; the committee) opened the business, on the contrary, they allowed that and detailed the steps taken by the road to be made under their eyes more committee to prevent the completion than two years ago, and to be opened of the “ obnoxious buildings,” and and used as a public road for the pur- to obtain a legal decision to reduce pose of carrying the materials for these them to one story above the level very buildings. This his lordship con of the bridge. The learned gentle. sidered a complete acquiescence in the man stated, that the committee was whole measures carried on under the deficient in the main sinew of war, authority of the Act of Parliament. viz. a large supply of metal, and He required no farther evidence of the said, that the funds subscribed amounthomologation, which he considered ed to something more than 7001.

, completely established, and he there. which had already been nearly exfore could not give the suspenders the pended. Mr Jeffrey noticed the apaencouragement of passing the bill. thy that prevailed on the part of the

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