Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Magistrates of Edinburgh
v.
William Anderson

Date: 12 February 1675

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There being a bill given in, in name of the said magistrates and council thereof, complaining; that, notwithstanding there had been a submission, by the whole neighbours of Edinburgh, to the dean-of-guild and his council, and ratified by an act of Privy-council, remitting all differences betwixt the heritors of burnt and ruinous tenements and lands, as to the manner and form of building thereof; and that without offering to advocate or suspend any of their decreets; yet, notwithstanding, the said William Anderson had obtained a suspension; and thereby put a stop to the rebuilding of the lands lately burnt, to the great prejudice of the whole neighbours and inhabitants:—It being ordained, by consent of parties, notwithstanding of the act of regulation, that the reasons of suspension should be presently discussed, the reasons were, that the submission by the whole neighbours and heritors was of the nature of a compromit betwixt private parties, and, in law, is liable to rectification by the Lords of Session, in case of enorme lesion or injustice: but so it is, that, by the decreet now suspended, the suspender was heavily prejudged, contrary to law and equity; in so far as the form and manner of building could only regard the security of the houses from fire, and the decoration of the town, and conveniency by public entries, which were all considered, and not questioned; whereas the question before the dean-of-guild court being, that Anderson was heavily prejudged, by imposing a servitude upon the gable of his house in favours of Murdoch, that he might build four chimneys, and so force the suspender to make the wall of his gable much thicker, and his own rooms of less quantity: as likewise, they had given a servitude to another neighbour, Handesyde, to have an entry within the turnpike with the suspender, which he never had before.

It was answered for the Town, and parties concerned, That the submission to the town-council of Edinburgh, ratified by an act of the Lords of the Privy-council, was of a far different nature from a private submission betwixt parties to arbiters; for this submission being upon the occasion of a late accident by fire, which was like to endanger the whole tenements in the town of Edinburgh, was of a public concernment; and the suspender himself, having submitted with that quality, that he should never suspend, was in pessima fide to procure the same: and as to the pretended prejudice, by giving servitudes to neighbours, they were most frivolous; there being decerned a just satisfaction for the enlarging of his gable, a liberty to extend the walls of his house farther than they were before: and as to the turnpike, it was ordinary that divers heritors entered to their houses by one and the same turnpike, and that it would be a prejudice to the structure to build more turnpikes, when they were needless.

The Lords, having considered the submission to the town-council, bearing, that not only all the houses to be builded should be of stone-work, but that the manner of all the building should be determined by them, without any reservation of any person's right or interest; and that upon the matter any pretended prejudice was satisfied, they did discharge the suspension, and, notwithstanding thereof, ordained the building to go on conform to the decreet of the dean-of-guild court; as being a matter of public concernment, and ought not to be retarded upon the account of lesion, to which the dean-of-guild and his council were most proper judges.

Page 460.