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.

Walter Ferguson
v.
The Governors of Heriot's Hospital

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John Cleland, gardener at Canon-milns, feued, from Heriot's Hospital, five acres of lands near Broughton Loan, and in his feu-charter was inserted a clause, declaring, “That it shall not be leisome to him, 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 Hospital, had and obtained to that effect.” Walter Ferguson, writer, became purchaser of a part of this feu, which lying in the neighbourhood of the extended royalty, he proposed to build a small square upon it, but was opposed by the Governors of the Hospital, who apprehended that it might interfere with the interest of the city in feuing their grounds in the new extended royalty. They presented therefore a bill of suspension to stop his building: but the bill was refused by Lord Auchinleck; afterwards by the Court; and these judgments were affirmed on appeal. In consequence whereof, Mr Ferguson had permission to build.