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.
The Reverend Mr Webster and Others v. Michael Allan
Date: 7 January 1710
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Michael Allan, late Bailie of Edinburgh, being proprietor of a house in Miln's Court, at the head of the West-bow, and having a vault or cellar under the passage and entry leading into the said court, and the head of it coming to fail, by the loads and heavy carriages brought over it for the use of the back tenements of that land, he applies to Dean of Guild Neilson, and craves a visitation; who calls some wrights and masons, who declare that the roof of his cellar was damnified by the carnages brought into that court; and, upon citation of the adjacent heritors, he decerns them to bear a proportional part of the expense in repairing it, extending to £100 Scots, or thereby. Mr Webster the minister, and others, raise a suspension of this sentence as iniquous, on thir reasons,—That they had bought their houses from Mr Miln the builder, with a clause in their dispositions, of free ish and entry, and so can no more be liable for repairing his cellar than any other of the lieges whose business leads them to resort to that court; and it is as ridiculous to burden them as to require the neighbouring heritors in the Parliament Close, or at the heads of wynds and streets, to uphold and repair the cellars and fossata digged under the ground of these passages, over which all the lieges walk; and this being a via publica, it was free to them as well as any other of the lieges, to pass and repass, and to bring their loads and burdens that way.
Answered,—He that has the commodum must not grudge the incommodant annexed thereto; ye have the benefit of passing over the pavement of my cellar, which both weakens and corrupts it, and so in justice are obliged to uphold it; and I affording you this servitude, it is enough that I grant you a passage over it, without being obliged to uphold it, which is against the nature of servitudes,—l. 15, sect. 1, D. de Servititi. Non est servitutum natura ut aliquid quis faciat, sed ut aliquid patiatur et non faciat in suo; and where there is jus vice ad cedes privatas, the onus refectionis belongs to him qui servitutem sibi asserii, l. 11, princ. D. Commun. Prædior. And again, we cannot compel our neighbour aggeres suos munire, sed nos in ejus agro muniment a sternemus.
The Lords thought the Dean of Guild had committed iniquity in two several particulars: 1mo, In allowing him to cover his cellar only with joists and pavement-stone, whereas it should have been by a stone pend, the trees in a few years rotting with the sapping humoris, urinÆ, aquÆ, et ponderum, and so endangering the lives and limbs of passengers, if it sink. And the 2d was, to decern the heritors to contribute to uphold the cellar; for they, having right to their houses with free ish and entry, could no more be burdened than any others passing that way.
This interlocutor encouraged the defenders to give in a bill to the Lords craving expenses, seeing malicious pursuers, by the late Act of Parliament, are as well finable as calumnious defenders. But the Lords refused the desire of the bill; seeing what he did was authore prætore, and res judicata pro ventate habetur. And the law says, though the prætor inique decernit, jus tamen dicere quodammodo videtur; which is sufficient to excuse from expenses.
