[1696] Mor 1898
Subject_1 BURGH ROYAL.
Subject_2 SECT. IV. Who liable to Burgal Services and Prestations.
Date: Town of Edinburgh
v.
Alexander Biggar
24 November 1696
Case No.No 41.
A burgh feued out a piece of ground, not within the town, but contained in their charter, being part of the side of a high road leading into the town. The feuer found not liable for the burgal prestations of watching, warding, &c.
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In the mutual declarators betwixt the Town of Edinburgh and Alexander Biggar, brewer, and heritor of the houses called Gairnshall, beyond the Windmill, and built in that mire commonly called the Goosedub; the town craved he might be found liable to all the burgal prestations, as lying within the royalty, such as watching and warding with the neighbours, quartering, assessment, militia, thirlage, &c. Biggar had a declarator of immunity, on this reason, that John Gairns, his author, had got a feu-charter of this ground, from the town, bearing a reddendo of 10 merks of feu-duty pro omni alio onere, which must free him from watching, warding, out-reeking militia or trained-bands; paying of local, transient, or dry-quarters, within the burgh of Edinburgh or Cannongate; and from all astriction to their mills, or imposition due to them on malt, or any impositions laid on by their authority; and that he is no farther liable to the town but for the yearly feu-duty foresaid.—Answered for the town, That the ground whereon these houses stood, was clearly, by their great charter in 1636, a part of the royalty of the burgh, and annexed to the same, and their right bears the vias et passagia leading to the said burgh; and where they are too broad, they feu the ground on the sides of their causeways, for melioration and decorement; and its being given in feu, does not hinder its being burgage; for so Thomas Robertson's land in the Meal-market, and the Society, are feus; and yet are liable in watching, warding, and all other burgal prestations.—Replied, Though the Magistrates held the town in burgagio of the King, so he was the town's superior, and not the Magistrates; yet, where they feu ground without the ports of the burgh, to be holden feu, that cannot be reputed burgage; and the highways and passages given them by their charter, convey no right of
property of those ways to the town, but only a jus servitutis viæ, itineris vel actus, they being juris publici for the conveniency of travellers; and, if they encroach to appropriate these ways, they may be pursued for purprision: And the case of Forbes of Culloden and the Town of Inverness, 14th and 16th July and 7th November 1674, voce Prescription, was rather for Biggar than against him; for it was found they could not burden their feuers with their own private stents, but only with the King's stents, as it is recorded both by Stair and Dirleton, though the last differs in his own opinion from the decision.—The Lords found the defender, by the reddendo of his charter, not liable to the burgal prestations of watching and warding; but, as to the militia, quartering, thirlage, &c. they ordained the parties to be farther heard. On a subsequent debate, the Lords found these lands lay within the territory and jurisdiction of the shire, and not of the town, and so must pay cess, out-reek militia, and other burdens, with the shire.
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