Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 BURGH-ROYAL.

Magistrates of Kilmarnock
v.
The Inhabitants

Date: 19 December 1776

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The common good of a royal burgh is vested in the Magistrates, as trustees and commissioners for the burgh, with powers of administration for the good of the burgh. Among these, a power of feuing has been established by decisions of the Court, in the case of Renfrew, not collected; and in the case of Irvine, collected, 3d July 1752. And it has been exercised in several instances, never controverted, much to the advantage of the burgh; as in the case of The Town of Ayr and Others.

See case of Paisley, h. c. p. 442; Glasgow, 4 New Coll. p. 328; Heriot's Hospital, 4 New Coll. p. 46.

Part of the common good of Kilmarnock, a burgh of barony, called the Green, had, from the year 1690 downwards, been used by the manufacturers of the Town for different purposes, of washing, bleaching, drying their wool, &c. It had been generally under tacks let by the Magistrates; and to the tacksmen the other inhabitants, who wanted the use of it as above mentioned, paid a small gratuity. The Magistrates, anno 1772, took a resolution to feu an eighth part of this green for building houses. Their doing so tended to increase a little the revenue of the burgh, but the inhabitants insisted that the feuing any part of it for building was prejudicial to their interest, and to the manufactures of the place. In a suspension, the Lord Gardenstone, Ordinary, pronounced this interlocutor:—“Finds, that the right of property of the green in question is only vested in the Magistrates as trustees and administrators for the benefit of the community; finds it sufficiently proven, That the manufacturers and inhabitants have always had the use of this ground for the purposes of bleaching, drying, &c.: Finds, That the Magistrates may, by fencing the ground, or other proper means, render it more useful for these purposes. And though granting feus may increase the public revenue under the management of governing persons, yet it is neither a proper nor a just act of administration to alienate this piece of ground, which the inhabitants have always occupied and used for the purposes of industry and manufactures in the village; therefore suspends the letters simpliciter, and decerns.”

And, upon advising a reclaiming petition and answers, (19th December 1776,) the Lords adhered, and found the suspenders entitled to their expenses. They held, that although the Magistrates had a title to feu, where their doing so was for the advantage and benefit of the Burgh and of the inhabitants, yet, in a competition betwixt an increase of the revenue of the burgh and the benefit of the inhabitants in their manufactures, &c, they thought the last was to be preferred.

The Magistrates again reclaimed, gave in a condescendence, and offered to prove that the inhabitants never had a servitude for washing, bleaching, &c. upon this green: that it was generally in tack, and, when so, that the inhabitants paid a consideration to the tacksmen for the liberty of the green; that they could be better accomodated elsewhere, &c. And this condescendence being answered, the Lords allowed a proof before answer.