Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PROPERTY.

The Governors of Heriot's Hospital
v.
Walter Ferguson

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John Cleland, in the year 1784, feued, from Heriot's Hospital, about five acres of land, formerly called Broughton-loan-head, and in his charter was the following clause:—

“Providing always, likeas it is hereby provided and declared, that it shall not be leisome to the said John Cleland and his foresaids, to dig for stones, coal, sand, or any other thing within the said ground, nor to use the same in any other way than by the ordinary labour of plough and spade without, the express consent and liberty of the Governors of the said Hospital, had and obtained to that effect.”

Walter Ferguson became purchaser of this feu, which being in the neighbourhood of the extended royalty of the town of Edinburgh, he prepared to build a square upon it. This was opposed by the Governors of Heriot's Hospital, apprehending that it might interfere with the interest of the city of Edinburgh, in feuing their grounds of the extended royalty. They presented a bill of suspension to stop Mr Ferguson's building. The bill was refused by Lord Auchinleck, and afterwards by the Court: and, last of all, upon an appeal, the decree was affirmed.