In boroughs, one may build as near the march as he pleases, providing no drop falls upon his neighbour.
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Clark and Gordon had contiguous houses in the town of Kirkcudbright, with back yards extending behind each of them. Gordon had an old kitchen behind his house, built close upon the march betwixt the two yards. Clark, in the year 1755, built on his side a coal-house, the side-walls of which almost touched the wall of Gordon's kitchen. At the same time he also built an house of office, opening towards his own yard, the back wall of which came within about eighteen inches of Gordon's kitchen. Gordon thereafter pulled down his kitchen, and built it up a-new, in a better form, with more windows, towards Clark's yard; and he thereupon brought a process before the Magistrates of Kirkcudbright, insisting, That Clark should be decerned to remove both his coal-house and house of office, as being built too near the wall of his kitchen. The Magistrates ordained both these houses to be pulled down; and Clark suspended.
Pleaded for Gordon; 1mo, With regard to the coal-house, That there must always be some space betwixt contiguous houses, which is regulated by the customs of particular boroughs: That in Kirkcudbright it is fixed at eighteen inches: That the coal-house in question touches the wall of the kitchen.
Answered for Clark; That Mr Gordon never interrupted him when building his coal-house; and therefore that it is too late to insist upon having it pulled down. Besides, as the coal-house is built with a shade-roof, sloping towards Clark's own yard, no drop can fall from it; nor can it be in the smallest degree prejudicial to Mr Gordon's property.
2do, With regard to the house of office, it was pleaded for Gordon, That although every man may use his property in what manner he pleases, yet he must not do it in æmulationem vicini: That there were many other more convenient places in Clark's yard, where such a house might be built: That it was offensive, and a very great nuisance to Mr Gordon.
Answered, That every man may build upon his own ground what houses he thinks proper, though they should be hurtful to his neighbour, unless he has a servitude.
“In regard Clark was not interrupted when building his houses, as the coal-house was built in such a form as that the easing-drop could not prejudge the charger's property, and as an house of office is not declared to be a nuisance by the laws of Britain, the Lords suspended the letters simpliciter.
Act. Swinton.Alt. Arch. Murray.Clerk, Home.
Fol. Dic. v. 4. p. 200. Fac. Col. No 226. p. 418.
