Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BURGH-ROYAL.
Subject_3 Powers of the Magistrates in feuing the common good.

Magistrates of Kilmarnock
v.
James Wilson and Others

Date: 20 December 1776

Click here to view a pdf copy of this documet : PDF Copy

[Supp. V. 406.]

Monboddo. Magistrates of boroughs have a right to feu; but this does not apply to the case before us, where the inhabitants have had a constant use of washing and bleaching on the ground sought to be feued.

President. Independent of the general powers of Magistrates, be they greater or be they less, the proposal for feuing, in this case, is improper, and hurtful to the community.

Braxfield. Here the gain is a trifle into the treasury, but the loss to the whole is evident. Magistrates may feu, because feuing may be the most advantageous thing for the community.

Kaimes. It is as necessary to have water to wash and ground to dry clothes on, as it is to be clean; so that what the inhabitants now enjoy is as necessary as houses or streets.

Hailes. It was determined, in the cases of Irvine and Renfrew, that Magistrates of royal burghs may feu: in the case of Musselburgh, the same thing was determined as to a burgh of regality. Whenever a burgh of barony happens to have a territory annexed to it, the same rule will apply to it; but still the power of feuing must be a limited thing, depending on the propriety of the measure; for Magistrates are administrators and guardians, not uncontrolled proprietors. They may feu waste ground, but not ground already occupied to the best advantage. Here, for the temptation of a ground rent of 15 shillings per annum from each house, they would deprive the whole inhabitants of a green which is at present useful, and which the inhabitants offer, at their own expense, to render more useful. The Magistrates of Glasgow might build the noblest street in Scotland by feuing out the green of Glasgow, and yet the Court would never authorise such a plan.

On the 19th December 1776, “The Lords found 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: Found it sufficiently proven by the tack produced, and by the narrative of the act of council, that the manufacturing inhabitants have always had the use of this ground, for the purposes of bleaching, drying, &c.: Found, That the Magistrates may, by fencing the ground, or other proper means, render it more useful for those purposes; and although granting feus may increase the public revenue under the management of governing persons, yet it is neither 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, and therefore suspend the letters simpliciter;” adhering to Lord Gardenston's interlocutor.

Act. T. Boswell. Alt. Claud Boswell.

There was no vote. Alva doubted. The Court found expenses due, that the opposers of the feu might be indemnified.