Three acres and a half adjudged from one heritor to another, in virtue of the act 17th Parl. 2d Cha. II.
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Pew had right to a lease of certain lands belonging to the Trinity Hospital in Edinburgh. In this farm there is a narrow piece of ground, which stretches for near five hundred ells into the lands of Miller. Miller, purposing to inclose his lands, brought an action before the Sheriff against the Magistrates and Town-Council of Edinburgh, as administrators of the Hospital, and against Pew as their tenant; concluding, in terms of the act 17th Parl. 2d Charles II. That the piece of ground above mentioned, should be adjudged to him in exchange for other ground of equal value. The Magistrates consented to the exchange, but Pew opposed it. The Sheriff appointed certain persons for valuing the ground, approved of their report, and ordained the ground to be measured, in order to complete the exchange.
Pleaded for Pew, in a bill of advocation; The Sheriff has exceeded the powers vested in him by law. The act 17th Parl. 2d Charles II. in order to correct any small irregularity in marches, and thereby to facilitate the inclosing of ground, allows the Sheriff to adjudge little pieces of ground to one or other of contiguous proprietors; but it does not allow him so to adjuge large parcels of ground, as in the present case, where three acres and a half are meant to be adjudged to Miller. So considerable encroachments on property can only be authorized by the express will of the legislature. The act of Charles II. has not authorized them; and, as it is a correctory statute, it may not be extended by interpretation.
Answered for Miller; The act 17th Parl. 2d Charles II. although correctory, is framed for public utility. It neither mentions small irregularities, nor determines the quantity which may be exchanged. The march was, in terms of the statute, so uneven, as to occasion great inconveniency in the inclosing; for that the projection could not have been inclosed, but at an expense exceeding the value of the ground. The case therefore is within the statute, which authorises the Sheriff to adjudge such parts of the one or other heritor's ground, as occasion the inconveniency betwixt them, so as may be least to the prejudice of either party. The Sheriff has purposed to follow this rule, by adjudging to Miller the ground projecting into his lands, to Pew, ground of an equal value.
“The Lords refused the bill of advocation.”
Act. D. Rae.Alt. Miller & Lockhart.
Fol. Dic. v. 4. p. 80. Fac. Col. No 121. p. 181.
