Found, that though the neighbours had no servitude, altius non tollendi, one could not build a fore-stair higher than formerly.
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The case of Bailie Thomas Wilson against Mr Robert Richardson, writer, was reported by Lochore. Mr Robert had taken down an old land, which had a timber fore-stair, and was re-building it; but he was re-edifying the fore-stair with plaister, and attempting to carry it so up to the top, seven story high. Thomas Wilson and the neighbouring heritors opposed this, as obstructing their lights, making their chimneys smoke, and by the vicinity endangering them with fire, and theft; for they might step out of one window into the other; and the Dean of Guild of Edinburgh having discharged him, he suspended, alleging, The late act of the Town and Privy Council for building in stone, in 1645, allows the fore-stairs to be re-built of the same extent as formerly, that is, no broader nor wider, but provides nothing against heightening them. Answered, Extensio is all the three dimensions, and comprehends altitudo as well as the other two; and the tolerance is only interdictum uti possidetis, to have it no otherwise than it was before; and though the adjacent tenements have no servitude altius non tollendi upon it; yet Sneidwin and Vinnius ad § 1. Institut. de Servitut. prœdior. give another exception, viz. nisi statuto civitatis certa œdificiorum forma sit prœscripta, as here; and though cujus est solum ejus est usque ad cœlum; yet here he has not the solum, the ground being the vennel and King's high-street, and he has only a protectum cast out. The Lords found he could not make this fore-stair higher than it was formerly.
Fol. Dic. v. 2. p. 274. Fountainhall, v. 1. p. 495.
