Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION - PUBLIC POLICE.
Subject_3 Whether the Dean of Guild has power to make general regulations for removing what, though not strictly a nuisance, may be deemed a deformity, and prove incommodious to the inhabitants and the public in general.

James Buchanan, Dean of Guild of Glasgow,
v.
Patrick Bell

Date: 15 November 1774

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[Faculty Collection, VI. p. 360; Dictionary, 13,178.]

Auchinleck. The plea of prescription now appears to have no foundation in fact: but, at any rate, prescription can have no place here. If the water-barge is a nuisance, no length of time can sanctify it. The good people in Edinburgh were wont, for ages, to throw all their filth out of the windows; but that gave them no right to persist in such an abominable custom.

Kennet. Said that, while on the circuit, he had inspected the water-barge; that it was not necessary to the owner, and was a great deformity.

Gardenston. The Dean of Guild has a discretionary power to remove deformities.

Coalston. By the law of this country, the Dean of Guild cannot take away the right of any person, but he has a discretionary power of regulating the exercise of that right as to the manner of erecting buildings. A man may desire to build his house with the gavel to the street, but the Dean of Guild may prevent him if he thinks fit. He has also a power to remove nuisances. This water-barge is both a deformity and a nuisance: to remove it, is just the same thing as to remove sign-posts: they were a deformity, and, as being dangerous to passengers, a nuisance.

Alva. The discretionary power of the Dean of Guild has always been a favourite maxim of mine.

President. I would not adhere to the interlocutor, even supposing prescription. Whenever there is a visible opus manufactum, no toleration by the carelessness of magistrates can support it. The case of the Luckenbooths is not to the purpose: there, there is a property in the ground, and houses erected on that property. If the water-barge had not affected the public street, I should have doubted.

On the 15th November 1774, “The Lords found the letters orderly proceeded;” altering Lord Elliock's interlocutor.

Act. W. Craig. Alt. R. Blair.