William Forbes, Merchant in Aberdeen, v. David Wilson of Finzeach
Date: 1 July 1724 Case No. No. 8.
The tolerance of a specified number of windows found to be extended to a greater number by immemorial possession.
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Mr. Wilson's predecessors having a house adjoining to a garden now belonging to Mr. Forbes, they obtained from his authors, in the year 1644, a tolerance or liberty “to strike out six lights in the backside of the tenement contiguous to the garden, they always filling the same with glass, that it might be profitable and useful to them in all time coming for giving light to the house.” There were now nine windows in the backside of the house, and, in place of their being filled with close glass, the casements were made so as to open; therefore, Mr. Forbes insisted to have the number of windows reduced to six, and that they should all be shut casements, in terms of the tolerance.
The defender pleaded, That the tolerance did not necessarily import, that the windows should be shut glass; and though it did, yet the tolerance was prescribed, both as to the number and fashion of the windows, by a possession of them for forty years in the condition they now are.
It was answered for the pursuer, That if the tolerance was founded on, it must be taken with its limitations; but if it was prescribed, then it was not binding on Mr. Forbes, and so he was at liberty to use his property, by planting or building, as he had occasion.
Replied for the defender, That the tolerance was explained by the immemorial possession; and that it was inconsistent with it to allow the pursuer to plant or build, so as to obstruct the defender's lights in æmulationem.
The Lords found, That the obtainer of the tolerance might prescribe a right to more windows than were allowed by the tolerance, and likewise a right to open them; but found, in that case, the other party might use his property, by planting or building, as was most convenient for him.
Act. Pat. Grant.Alt. Jo. Kennedy.Reporter, Lord Justice-Clerk.Clerk, Dalrymple.
Fol. Dic. v. 4. p. 279. Edgar, p. 61.
