Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Andrew Aberdeen and Others v. Helen Shand and her Husband
Date: 11 June 1706
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Mr Andrew Aberdeen, and the other heritors and magistrates of the town of Old Aberdeen, pursue a declarator against Helen Shand and her husband, to hear and see it found and declared, That they have the undoubted right to the ground on which they have founded their tolbooth and new prison; and that the said market-place and streets belong to the community or the said burgh, and not to the said Helen; and that, therefore, she and her husband be discharged to impede, hinder, and interrupt the building in all time coming; and to refund their damages in stopping the said work, and the expenses of plea.
The defender raised a counter-declarator, alleging, The ground on which the town was building thenew tolbooth and prison was no part of their common good, but belonged to her in property; and that she has the houses adjacent, whereof she is heiress; and if the ground be Shand's property, then incedificata solo cedunt soli illius domino; and her tenants threaten togive over if the said work proceed; because they will be hourly disturbed with the noise of the clock and chime of bells.
The Lords, before answer, allowed a conjunct probation as to the property or commonty of the saidground. And accordingly the town adduced several witnesses, who proved, that, these forty years backand more, the said ground was ever reputed to belong to the town; and that in the year 1649 they had built a house thereon; and never knew them interrupted till the year 1702, that this woman and her husband pretended right thereto.
The Lords found the town had right to this ground, and therefore decerned and declared in their favours. And, as to the accidental inconvenience of noise, a public good was not to be stopped on that account; though the French lawyers tell, that a professor having complained that a smith dwelling next him disturbed his own and his scholars' studies, the judge ordained him to flit and remove to another part of the town. And yet a smith is as necessary a member of society and republic as any professor of law: Both are useful in their own kind. And, as to expenses, the Lords ordained the pursuers to give in a condescendence and account of the same, that they might consider thereupon.
It was objected against some of the witnesses, That, being burgesses, they were parties; and so might tine and win in re civitatis.
The Lords thought, If it were in a common pasturage belonging to the city, where all the witnesses had a liberty to put in their goods, there might be suspicion; but there was no ground for it here: and so repelled the objection.
