Found that the piazzas on the sides of the High street of Edinburgh, could not be built up by the proprietors of the shops under them, the same being the property of the public, and that every inhabitant of the burgh has a right to put a stop to such encroachments attempted by individuals.
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On the west side of the entry from the High street to Gray's close there is a piazza supported by pillars, bounded on the south and west by a shop and cellar belonging to Mr Ronaldson, and on the north by the plain-stone pavement.
Mr Ronaldson intending to advance his shop to the pavement, by taking into it the area occupied by the piazza, obtained for this purpose consent of some of the inhabitants of Gray's close, and a warrant from the Dean of Guild of the burgh.
Of this procedure, as prejudical to the public, by narrowing the entry to the close, and depriving passengers of the shelter afforded by the piazza, Sir William Forbes and others complained by bill of suspension.
Pleaded in defence; As the rights under which the defender possesses his shop and cellar are limited by ‘the entry to Gray's close on the east,’ and ‘the public street on the north,’ the area within the piazza, which, with no propriety, can fall under either of these descriptions, must be held as his property, by occupying which occasionally with articles of merchandise, he has derived every benefit of which, in its present condition, this spot of ground is capable. Nor can the transitory accommodation of ten or a dozen of passengers, when productive of no sort of inconveniency to the defender, be presumed to have introduced a servitude of this anomalous nature, and to have disabled him from converting his property to a more beneficial purpose.
Could this space be considered as a part of the public street, it ought not to be permitted to a few individuals, from motives of caprice, to oppose an alteration which, without any sensible inconvenience to the public, is greatly conducive to the beauty of the street, and which, on this account, has received the approbation of the neighbours, and of that officer within the burgh whose peculiar province it is to superintend matters of this sort. Hence, though by far the greatest part of the high street of this city seems in ancient times to have been bounded by piazzas, scarcely a vestige of these remains; the conterminous heritors, when rebuilding their houses, having been allowed without challenge to follow the measures adopted by the defender.
Answered; From the history of this city it appears, that in the beginning of the 16th century the Magistrates, in order to promote the sale of the wood belonging to the community, permitted the purchasers to advance the front of their houses seven feet into the street, upon their leaving these new fronts supported with pillars for the conveniency of passengers; Maitland's History of Edinburgh. The space, therefore, occupied by these piazzas is the property of the public—At any rate, it has for ages been used as part of the public street, on which no private party, upon pretence of improvement, can be allowed to encroach. Nor can former precedents, occuring through the connivance or neglect of the Magistrates, and now sanctified by long possession, afford an excuse for new alterations. Although the Magistrates consented, every inhabitant of the burgh has a right to put a stop to them.
The Lord Ordinary “having visited the ground, repelled the reasons of suspension;” but the Court considering the alteration to be an encroachment on the public street, altered that interlocutor, and
“Suspended the letters.”
Lord Ordinary, Kennet.Act. Nairne, Tytler.Alt. Maclaurin.Clerk, Home.
Fol. Dic. v. 4. p. 198. Fac. Col. No 105. p. 167.
