Scottish Court of Session Decisions

This was an action at the instance of John Blackie and others, market gardeners, against the Magistrates and Town Council of the City of Edinburgh, to have it found and declared that the fruit and vegetable market-place in Edinburgh was vested in and held by the defenders primarily for the purposes of a fruit and vegetable market, and that the pursuers had a right to the peaceable use and enjoyment of the said market-place for market purposes during market hours, and to have the defenders interdicted from excluding the pursuers from the use and enjoyment of the market-place for market purposes, or from otherwise appropriating, using, or disposing of the market-place to the prejudice of the pursuers' rights and privileges, and also from troubling or molesting the pursuers and other frequenters of the market in the peaceable use and enjoyment of the market-place during market hours in time to come, or at least until a new and suitable market-place should have been legally provided, set apart, and established for market purposes to supersede the said market-place.

The pursuers were a number of market gardeners and wholesale fruit and vegetable merchants who held stands allocated to them in the market-place, and were in use to attend the market. The market contained 158 stances for carts, and there were upwards of a hundred pursuers. Some of the pursuers were resident in Edinburgh, and the rest in the neighbourhood or adjoining counties.

The Magistrates were grantees from the Crown of the right to hold fairs and markets within the burgh of Edinburgh. These royal grants extended back to the fourteenth century, and terminated with the Golden Charter granted by James VI. in the year 1603. Besides these royal grants, Parliamentary sanction was given to markets being held by the Magistrates within the burgh, commencing with a statute in the reign of James V. (1526, caps. 2 and 3), and terminating with the Act 37 and 38 Vict. cap. lxxxv.

Prior to the year 1823 the fruit and vegetable market was held on part of the central streets in the Old Town of Edinburgh, but in that year ground under the North Bridge was specially appropriated for the purpose by the magistrates after consultation with the market gardeners. In 1840 the Act 3 Vict, cap xvii. was passed, sec. 21 of which provides—“And be it enacted that it shall and may be lawful to the said Lord Provost, Magistrates, and Council, and they are hereby authorised and empowered, to fix and ascertain the boundaries and limits of the existing market-places, as they shall find the same to be necessary; to alter the days and hours of holding the different markets; to divide and allocate the stands in the same; to alter and enlarge the markets and market-places, and altogether to change the situation of any of the existing markets or market-places, and to substitute other markets or market-places in their stead.” By this Act the Magistrates were further authorised to make rules, regulations, orders, and bye-laws for the better regulation and government of the different markets of the city, and to repeal, alter, add to, or amend such rules, &c.

In 1860 the Act 23 and 24 Vict. cap. clix. was passed after various negotiations, in consequence of the North British Railway Company requiring the ground on which the market was held. That Act authorised the railway company to acquire the old site, provided a proper site was substituted to the satisfaction of arbiters. Section 9 thereof provided—“Provided always that the new or substituted market to be constructed under arbitration shall not be formed or held upon any open street or area, but in some secure place, enclosed by substantial walls and gates, with equal accommodation to the present fruit and vegetable markets.”

A dispute having arisen between the Magistrates and the railway company as to the new market to be provided, the matter was referred to arbitration, and a decree-arbitral was pronounced with reference to the provisions of this statute, which decree the Magistrates considered to be ultra vires of the arbiter, and the railway company having given notice of a bill to give effect to'the decree, the Corporation took steps to oppose it. In this opposition the market gardeners took an active part, and the result of the proceedings before the Parliamentary Committee appears from a report made in October 1864 by the City Clerk to the Town Council in these terms:—“The Parliamentary Committee affirmed the views of the Council, decided that the markets should not be held in the public streets, and provided that

Page: 354↓

‘another fruit and vegetable market’ on an ‘other site’ should be constructed and made over, ready for use, at the expense of the company, before they should be allowed ‘to appropriate, use, or interfere with’ the lands on which the existing market is held.” In the same report the City Clerk explained that the chairman of the Committee intimated, after certain witnesses, including market gardeners, had been examined, that “it would be unnecessary to lead further evidence as to the inexpediency of holding the markets on the public streets, or in an unenclosed space.”

The result of this opposition was an agreement between the railway company and the corporation, sanctioned by the Act of 1865 (28 and 29 Vict. cap. clii.), which provided—“Before appropriating, using, or interfering with the lands on which the fruit and vegetable market, to be provided under article third hereof, shall be held, or of any of the accesses thereto … [the company] shall be bound to provide … a new and substituted market, which shall in every respect fulfil the conditions prescribed by the said North British Railway (Stations) Act of 1860, with reference to the new and substituted market therein specified.”

In 1866 the Act 29 and 30 Vict. cap. cclxvi. was passed, which authorised the railway company to construct “a new fruit and vegetable market for the city of Edinburgh on ground adjoining Princes Street and Waverley Bridge, in the parish of Saint Andrew in the said city.” The agreement of 1865 was contained in the schedule to the Act of 1865 and also to the Act of 1866.

The railway company did provide ground for the purpose, and under this agreement the new Waverley Market was constructed and given over to the corporation in 1869. In the conveyance to the corporation the ground was described as All and Whole that piece of ground upon which the said North British Railway Company have formed a new fruit and vegetable market for the said city.” It soon became apparent that the market would be much improved if covered over, and accordingly in 1874 another Act was obtained, entituled The Edinburgh Markets and Customs Act 1874 (37 and 38 Vict. cap. lxxxv). The preamble of this Act is as follows:—“Whereas the Corporation of Edinburgh … possess a fruit and vegetable market-place, situated in the parish of St Andrews, and city and royal burgh of Edinburgh; and it is expedient that powers shall be acquired to cover in, in a suitable and convenient manner, the said market-place, and to improve and better adapt the same for public use, and for the accommodation of parties using the same.”

Section 8 provides—“The corporation may cover in, in a suitable and convenient manner, the fruit and vegetable market-place, and improve and better adapt the same for the purposes of such market, and for the accommodation of parties using the same, and of the public, and may make such internal and other arrangements and divisions in regard to stands, stalls, and shops as to them may seem suitable: Provided always, that the ground floor only of such marketplace shall be used for such fruit and vegetable market, and that all vacant portions of such market-place, whether on the ground floor or above the same, and all vacant and unlet stands, stalls, or shops, in or on such market-place, may be let or used by the corporation for such purposes, and for such rents or rates, as to them shall seem proper.”

Section 26 provides—“Nothing in this Act contained shall be held to affect the right and power of the corporation to fix, alter, and regulate markets and market-places, and establish additional markets, conferred or confirmed by the second recited Act, or by any other of the recited Acts, whether within or beyond the limits of the city.”

This statute authorised a considerable increase in the customs to be exacted for the use of the market from the market gardeners who brought carts into it, and imposed a poll-tax upon each member of the publio who entered the market-house.

Under the powers conferred by this Act the corporation had the market-house covered in at a cost of upwards of £30,000. It was proved by the City Chamberlain that the total income from all uses of the building was sufficient to meet the charges if it was taken into account that a large sum was annually appropriated to a sinking fund, and payment of a share of an annuity to the city's municipal funds.

Under their statutory powers above-mentioned the corporation made certain bye-laws, which were confirmed by the Sheriff of the county of Edinburgh, by the first of which it was provided that “the market-place shall comprehend the area of the market-house and the ground belonging thereto, situate at the east end of Princes Street and north end of Waverley Bridge Street and the public roads, streets, courts, areas, and places situate within a radius of one hundred yards measured from any part of the said market—house.” As first framed, these bye-laws contained this provision—“That the market-house shall be used for such purposes other than market purposes, for such times and on such conditions as to admission or otherwise, as shall from time to time be determined by the Magistrates and Council, or the Markets Committee of the Town Council.” The proposal to obtain these powers was, however, opposed by the market gardeners, and the proposed provision was dropped.

The management and regulation of the market, so far as regarded the allocation of stands and other matters of detail, was left very much in the hands of the market gardeners. The corporation appointed out of their number a Market Committee, who gave a general superintendence, but who seldom interfered with the allocation of stances or such matters. In the exercise of their discretionary powers, the Magistrates granted from time to time to the proprietors of travelling menageries the use of the old market at the North Bridge The Waverley Market was also granted for the same purpose at various times. It was also granted for several years for the purpose of flower shows, to a Christmas Club in several years for cattle shows, for a bicycle tournament in 1880, for a dog show in 1881, and for an art exhibition.

The days for the vegetable market were Tuesdays, Thursdays, and Saturdays, and the hours were from early morning until ten o'clock. On none of the occasions above specified was there any real interruption of the market, or anything but slight inconvenience to those who attended.

In April 1882, however, the corporation gave the exclusive use of the market-place or house

Page: 355↓

for a period of three weeks for the purpose of the Fisheries Exhibition, and during that time the pursuers and the public were excluded from the market house and market-place, and were obliged to hold the market on the neighbouring public streets, but within the area of the “market-place” defined by the bye-law above narrated. It was proved that during this period the weather was fine, so that no material injury or damage from the exposure of their goods to the weather was caused to the pursuers.

The pursuers, when the intention of the corporation to grant the exclusive use of the proper marketplace or house for the Fisheries Exhibition became known, brought a process of suspension and interdict to prevent the proposal being carried out, but being anxious to avoid what might hinder or compromise the success of the Exhibition, they agreed not to press their demand for interdict, but to try in an action of declarator the right of the defenders to make such an appropriation of the market, to the exclusion of the public for so long a time, and hence the present action was raised.

The pursuers pleaded—“(1) The said marketplace having been dedicated for market purposes consistently with the rights and privileges which the gardeners have enjoyed for time immemorial, the pursuers are entitled to declarator as concluded for. (3) In respect that the defenders' actings are an invasion of the pursuers' right at common law and under statute, decree of declarator and interdict ought to be given in terms of the conclusions of the summons.”

The defenders pleaded—“(1) The pursuers have not set forth and do not possess any title to sue the present action. (4) The defenders, as proprietors of the said market-house in trust for the community, are entitled to regulate the use thereof in the manner they deem best calculated for the interests of the community, and are entitled to absolvitor from the conclusions of the summons. (5) The defenders are, in any event, entitled to use or let the use of the said market-house on special occasions for public purposes, provided they supply sufficient accommodation for the fruit and vegetable market within the area of the said market-place, or in some other equally convenient locality.”

The Lord Ordinary ( Fraser) allowed a proof before answer, and on 20th February 1883, after taking the proof, pronounced this interlocutor:—“Finds that the Lord Provost, Magistrates, and Town Council of the City of Edinburgh have, by royal charters confirmed by Acts of Parliament, a right to hold markets within the burgh of Edinburgh, and among others a fruit and vegetable market: Finds that the defenders have appropriated for the use of the said market a market-house situated on ground adjoining Princes Street and Waverley Bridge, Edinburgh, and which ground was obtained by them from the North British Railway Company in exchange for the site of the old fruit and vegetable market near the North Bridge of Edinburgh: Finds that the said market-house, except in so far as not laid out and fitted for a market by the said North British Railway Company, was erected by the defenders from funds contributed from the common good, and from money borrowed upon mortgages by them: Finds that the market-place of the said fruit and vegetable market comprehend the area of the said market-house, and the ground belonging thereto, and the public roads, streets, courts areas, and places situate within a radius of one hundred yards measured from any point-of the said market-house: Finds that the defenders, as grantees of the right of holding markets, in virtue of said royal charters and Acts of Parliament, have a right of control and administration of the said market-place and market-house, and are entitled to make rules, regulations, and byelaws relative thereto, which are valid when confirmed by the Sheriff of the county of Edinburgh: Finds that the defenders and their predecessors have been in use from time to time to allow exhibitions of various kinds deemed by them to be of public interest or utility, to be held both in the existing market-house at Waverley Bridge and in the former market-places in Edinburgh where the fruit and Vegetable market was held: Finds that the occasional use so granted by the defenders and their predecessors for such exhibitions was within their powers, and finds particularly that when the present market-house was built it was in contemplation of all the parties interested that such occasional use should be given of the market-house to such other exhibitions deemed by the defenders to be of interest to the community, and that the revenue derived from such exhibitions was relied upon as one of the sources from whence the interest and principal of the debt incurred by the corporation in building the market-house should be met: Finds that only occasionally have such exhibitions interfered with the holding of the fruit and vegetable market in the market-house during market hours, which are from early morning to ten o'clock forenoon: But finds that in April 1882 the pursuers and others frequenting the fruit and vegetable market were entirely excluded from the market-house for a period of about three weeks, and were obliged to hold the market upon the public streets adjacent to the market-house, but still Within the market-place as above defined: Finds that this was not an undue exercise of the discretionary power vested in the defenders, and that it was not an illegal interruption of the peaceable use and enjoyment by the pursuers of the market-house: Finds, therefore, that there are no grounds for granting interdict against the defenders: As regards the declaratory conclusion, finds that the market-house is vested in the defenders for, among other purposes, a fruit and vegetable market, but not to such an extent as to bar the defenders from giving the occasional exclusive use thereof to some other purpose of public interest and utility: Therefore, with the above findings, assoilzies the defenders from the conclusions of the summons, reserving to the pursuers, and to any other persons interested and having a legal title so to do, to apply for interdict or such other remedy competent to them against the defenders in the event of the latter unduly restricting the frequenters of the market in the peaceable use and enjoyment thereof, or in the event of their devoting it for an unreasonable time to a purpose that deprives the frequenters thereto of the means of carrying on their business in the market-house: Finds no expenses due to either party, and decerns.

“ Opinion.—The question in this case is, Whether the Magistrates and Town Council of Edinburgh, the grantees from the Crown and from Parliament of the right of holding a vegetable market within the burgh, can, in virtue of

Page: 356↓

their powers of administration and control, deprive the market gardeners of the use of the building wherein a part of the market is held, for a limited time, in order to enable them to give the use of the building during that time for some other purpose deemed by them to be of public utility?

The law as to markets has very little occupied the attention of the Courts; and there is no decision explaining how far the grantee of the market can be restrained from interfering with the persons who frequent it.

The privilege of holding a market is one only to be obtained by royal grant, or by prescriptive use, from which a royal grant is inferred. Bank-ton (i. 19, 13) so lays it down as follows:—For the encouragement of commerce, and the good of royal borows, there are weekly markets established in them; and likewise fairs, which are more solemn; yearly markets on stated days, with certain extraordinary privileges—these are granted by the Sovereign, and being once established, they connot be encroached upon by a posterior grant to a neighbouring baron or town. Burghs of regalities, barons, and other heritors, in their respective borows, have likewise the privilege of markets and fairs indulged them.’ Lord Neaves, in the case of Henderson v. Earl of Minto (1st June I860, 22 D. 1126), also states that the grant of a market only flows from the Crown; and Mr Cosmo Innes in his treatise on ‘Scotch Legal Antiquities’ (p. 38), shows that the Crown made such grants from a remote antiquity. It was not to burghs only that grants of markets were given. Private individuals received from the Crown at various times the right to hold a market upon their lands. But apparently during the sixteenth century the mode of establishing a public market was not by a direct grant from the Crown, but by means of an Act of Parliament. There are many Acts during that century conferring on burghs and upon private individuals the right to hold markets at specified places, or at any place that might be selected by the grantee within his territory. The days for holding the markets were appointed, and power was given to collect tolls and customs. Why resort should be had to an Act of Parliament to establish a market, to change the days for holding the market, and to alter the places which had been formerly appointed for it, has not been explained by any writer or by any decision. It was the prerogative of the Scottish kings to do all these things without the intervention of Parliament at all, and yet apparently the course adopted was to present a petition to Parliament praying for the necessary institution of the market, or the change that was desiderated in regard to time or place. The Acts of Parliament will be found referred to in the index to the Acts of the Scottish Parliament recently published ( voce ‘Market’).

The only points that seem to have occurred for decision of the Courts had reference to the establishment of a second market near to and conflicting with a market already in existence, and in regard to attempts made by the grantee of the market to increase the tolls and customs or duties beyond ancient usage. The decisions in regard to the latter point are numerous, and those in regard to the former point are quite direct and explicit as stated by Bankton. See Morison's Diet., voce ‘Fairs and Markets,’ and Shaw's Digest, voce ‘Burgh.’

Perhaps it was because it was thought that without an Act of Parliament not merely customs or dues could not be increased, but that they could not authorise even the original dues to be taken, that made a resort so frequently to be had for Parliamentary authority. This does not seem to have been the view taken of the royal prerogative in England. It is laid down as the law in that country that the Sovereign may in the original grant authorise dues to be exacted. Chitty says (Treatise on the Laws of Commerce and Manufactures)—‘Toll is not a necessary incident to a fair or market; and if the King grant a fair or market without adding toll, such fair or market is free, and no toll can be taken. Tolls, therefore, can only be claimed by express words in a grant, or by prescription, which supposes such grant.’ The same author, in his treatise on the ‘Prerogatives of the Crown’ (p. 193), states the law thus—‘Marts and fairs were originally instituted for the benefit of the public and the better regulation of trade. As protector of commerce, the King alone possesses the power of creating markets and fairs; nor can anyone claim them but by grant from the Crown, or by prescription, which supposes such grant, though they may exist by way of royal ordinance without being granted to anyone in particular. It was observed by Lord Mansfield that the reason why a fair or market cannot be holden without a grant is not merely for the sake of promoting traffic and commerce, but also for the like reason as in the Roman law, for the preservation of order and prevention of irregular behaviour; ubi est multitudo ibi debet esse Rector.’

The Magistrates of Edinburgh are grantees from the Crown of the right to hold fairs and markets within the burgh. These royal grants extend back to the fourteenth century, and terminate with the Golden Charter granted by King James the Sixth in the year 1603. But besides royal grants, Parliamentary sanction was given to markets being held by the Magistrates within the burgh of Edinburgh, commencing with a statute in the reign of King James the Fifth, and terminating with the 37 and 38 Vict., cap._85, passed in the year 1874.

By a charter of King James the Second, dated in 1447, the King granted to the Provost, Bailies, Councillors, and community of the burgh of Edinburgh right to hold fairs within the burgh and the territory thereof yearly. King James the Third, in 1477, by a letter under the privy seal, specifies the places within the burgh wherein the various markets were to be held. King James the Fourth, by a letter in 1507, confirms to the burgh and to the Magistrates thereof two yearly fairs, to be holden within a certain number of days within the burgh. In 1555 a doubt existed as to whether the Magistrates of their own authority could change the places that had been appointed by the prior charters for holding the market; and Queen Mary, on the narrative of this difficulty, granted authority to them to change the market-places to any other part or place of the burgh as often as they should think needful and expedient. Then came the Golden Charter granted by King James the Sixth in the year 1603, which ratified and confirmed all the prior grants of two yearly fairs, and gave power to hold weekly markets on every Monday, Wednesday, and Friday, or on any other three days of the

Page: 357↓

week as the Magistrates might appoint.

As regards the Acts of Parliament, very much the same powers are conferred upon the Magistrates in the reign of King James the Fifth by the Act 1526, cap. 2 and 3. A corn and a flesh market were appointed to be held on three days every week. In 1540 the meal and victual was ordered to be removed from the High Street to some other convenient place. In 1640 the Monday market was ordered to be discontinued.

But the important statutes are those of the present reign, which define the powers of the Magistrates in regard to the markets, and almost entirely supersede the necessity of considering what are the powers of administration and control which the grantee of a market possesses at common law. The first of these statutes to which reference need be made is that of 3 Vict., cap. 17, passed in the year 1840. The 21st section of this statute enacts ‘That it shall and may be lawful to the said Lord Provost, Magistrates, and Council, and they are hereby authorised and empowered, to fix and ascertain the boundaries and limits of the existing market-places as they shall, find the same to be necessary; to alter the days and hours of holding the different markets; to divide and allocate the stands in the same; to alter and enlarge the markets and market-places, and altogether to change the situation of any of the existing markets or market-places, and to substitute other markets or market-places in their stead; and to establish additional markets for the sale of other articles of produce other than those contained in the schedules to this Act annexed.’

The Magistrates were further authorised to make rules, regulations, orders, and bye-laws as they shall think fit and necessary for the better regulation and government of the different markets of the said city for the time being, and of the officers appointed by them to superintend the same, and from time to time to repeal, alter, add to, or amend such rules, regulations, orders, and bye-laws so to be made. The only limitations put upon this power of making rules and bye-laws was that they should not be repugnant to the laws of Scotland, and should not have the effect of increasing the dues or customs authorised to be levied, and that they should be confirmed by the Sheriff of the county of Edinburgh.

This is the Act of Parliament in virtue of which the Magistrates did, after its date, frame rules and byelaws, and which rules have been confirmed by the Sheriff. It appears from the excerpts from the burgh records, beginning in 1508, that the Magistrates themselves had been in use, without any special authority given to them by the royal charters, or by the various Acts of Parliament which were passed relative to the Edinburgh markets, to make rules and bye-laws for regulating the mode of doing business at the markets, settling the hours during which each market was to kept open, and the places at which each was to be held,—such powers being inherent in the grant of a market.

Now, as to the particular market to which this case has reference, the history of it, so far as needful, is as follows:—It was held down to the year 1821 on the High Street of Edinburgh. The carts containing the vegetables which were sold were ranged on both sides of that street. This was neither convenient to the market gardeners who brought their produce for sale, nor to the public who dealt with them, nor to the persons who had occasion to pass along that street. The Magistrates therefore, acting either under their common law powers as grantees of a market, or under the express authority given to them by Queen Mary to fix the market at any place within the burgh that they pleased, did in the year 1821 remove the market from the High Street to a place underneath the North Bridge. This was done after consultation with the market gardeners, whose opinion was taken, as set forth in a minute of 30th May 1821, and at that meeting the Magistrates and Council, acting under their powers as grantees of the market, passed a set of regulations for the government of it. These regulations appear to have been drawn up by a committee of the gardeners; but it was by the authority of the Magistrates and Council that they were enacted, and it was by their authority that all regulations for the proper management of the market were authorised in later times. Of recent date (1835) there are regulations signed by the Lord Provost for ‘the vegetable and fruit markets.’ After these came Acts of Council' declaring the boundaries of the different market-places of the city and the times when the markets are to be held, dated 11th ‘November 1840.’ This Act of the Magistrates and Council states explicitly where the vegetable market was to be held, viz., under the arches of the North Bridge, and to the west of the bridges, and so forth; and also prescribes the hours during which the market is be held.

That the Magistrates and Council could have changed the market from underneath the arches of the North Bridge, and put it elsewhere according to their discretion, is plain enough. They had express authority to alter any place that had been fixed upon for a market to any other place within the burgh under Queen Mary's letter. They had this power within their right as grantees of a market independently of the Queen's letter. Of course this discretionary power on their part could only be exercised, like all discretionary powers conferred upon persons for public purposes, in a reasonable manner. If the grantees of the market changed the place without any rational purpose, and nimously, and so as injuriously to affect the persons attending the market, these latter could complain. Still, unless some such objection could be stated, such change of the place for holding the market by the Magistrates was within their power prior to the Act of 1840, which gave express statutory authority to alter market-places.

It is in reference to the more recent legislation that any difficulty exists in reference to the present dispute. If the matter had to be determined according to the law prior to these recent statutes, the Lord Ordinary thinks there could be no question that it was within the discretionary power of the Lord Provost, Magistrates, and Council of Edinburgh to have appointed that the vegetable market should be held—for a short period at a time—in some other place of the burgh than that in which it was usually held, if they had any reasonable purpose of public utility warranting them to put the market gardeners to the inconvenience of taking a new site. How far then has the discretion of the corporation been restrained by recent legislation?

The North British Railway Company required

Page: 358↓

the ground on which the market was held at the Bridges, and after various negotiations an arrangement was come to between them and the corporation, under which the railway company were authorised to take the site of the market, and, on the other hand, they agreed to give other ground belonging to them for a new vegetable market. This arrangement was confirmed by Parliament by the Act 29 and 30 Vict., cap. 246, passed in the year 1866. The railway company was authorised to construct ‘A new Fruit and Vegetable Market for the City of Edinburgh on ground adjoining Princes Street and Waverley Bridge, in the parish of St Andrew in the said city.’ The railway company did provide ground for the purpose, and proceeded to lay it out in a manner suitable for the end in view. It was completed and handed over to the corporation in the year 1869, and is now the Waverley Market-House. This market-house was uncovered, and so remained from 1869 to 1874. It became apparent, however, that the convenience and comfort of the public, and of the gardeners resorting to the market, would be very greatly increased if the market were covered over, so as to free the persons frequenting it from the wind and rain. Another Act of Parliament therefore was obtained in the year 1874, entituled, ‘The Edinburgh Markets and Customs Act 1874,’ This Act proceeded upon a long preamble which recited the previous statute, one clause of which referring to the vegetable market being in the following terms:—‘And whereas the corporation of Edinburgh, by whom the second, third, fourth, and fifth recited Acts have been and are being carried into effect, also possess a fruit and vegetable market-place, situated in the parish of St Andrews, and city and royal burgh of Edinburgh; and it is expedient that powers shall be acquired to cover in, in a suitable and convenient manner, the said marketplace, and to improve and better adapt the same for public use, and for the accommodation of parties using the same, and to acquire compulsorily any rights of property, privileges or servitudes which would interfere with the said objects.’ The 8th section of this statute is in these words:—‘The corporation may cover in, in a suitable and convenient manner, the fruit and vegetable market place, and improve and better adapt the same for the purposes of such market, and for the accommodation of parties using the same, and of the public; and may make such internal and other arrangements and divisions in regard to stalls, stands, and shops as to them may seem suitable: Provided always that the ground floor only of such market-place shall be used for such fruit and vegetable market, and that all vacant portions of such market-place, whether on the ground floor or above the same, and all vacant and unlet stands, stalls, or shops in or on such market-place, may be let or used by the corporation for such purposes, and for such rents and rates, as to them shall seem proper.’ This statute authorised a considerable increase in the customs to be exacted for the use of the market from those market gardeners who brought carts into it, and it imposed a poll-tax upon each member of the public who entered the market-house. The allocation of the stands to the market gardeners is made once a year by lot, in terms of regulations framed by the Magistrates, and confirmed by the Sheriff, the 8th regulation being in the following terms:—‘The stands in the area of the market shall be allotted by the gardeners and other frequenters of the market amongst themselves, at such times, and according to such arrangements as shall from time to time be made by them, or a committee of their number, subject to the approval, or under the direction of the Markets Committee of the Town Council, provided ( a) that in the allotment of stands the market area shall be occupied in the following order, beginning at the east end, viz.—(1) stands for the sale of fruit; (2) stands for the sale partly of fruit and partly of vegetables; (b) that failing the occupation of a stand or stands by the allottee or allottees thereof one-quarter of an hour before the opening of the market house for business on any day, the market officer shall allot such stand or stands for such day; and (c) that failing an allotment of the stands by the gardeners and frequenters as above authorised, the same shall be made from time to time by the market officer.’

The management and regulation of the market so far as regards the allocation of stands and other matters of detail have thus been left very much in the hands of the gardeners themselves. The corporation appointed out of their number a market committee, who gave a general superintendence, but who seldom interfered with the allocation of stances or such matters.

There being very few open spaces in the central part of Edinburgh for public exhibitions, the corporation were sometimes asked to accommodate such exhibitions on the site of the market, and believing that in granting such accommodation they were using their discretionary powers for the benefit of the public, they appear to have generally listened with a willing ear to these applications. They have granted the use of the old market at the Bridges to Wombwell's and Manders' Menageries, and the new Waverley Market has been for several years granted for the purpose of a flower show. The use of it has also been allowed to a Christmas club for several years, to menageries at various times, for a bicycle tournament in 1880, for a dog show in 1881, for an art exhibition, and in April 1882 for a fisheries exhibition, which last involved the exclusion of the gardeners from the market-house during market hours, from the 7th to the 30th April.

The days for the vegetable market are Tuesdays, Thursdays, and Saturdays. The Thursday market is an unimportant one except for a few weeks in the year during the fruit season. The flower shows were held only during two days in a week in spring, and two days in a week in autumn—Wednesdays and Thursdays—and thus the use of the market by the gardeners, owing to the unimportance of the Thursday markets, was not much interfered with, and they willingly submitted to the inconvenience, seeing that the exhibition was a flower show in which they were all interested, and in which some of them were competitors. As regards the other uses now specified, to which the area of the market was put other than a market for vegetables, the gardeners were never actually extruded from the market-house, although some of them had to give up their stands and take a position elsewhere within the area. It was when the fisheries exhibition was allowed to be held within the

Page: 359↓

market-house for no less than three weeks that matters came to a crisis as between the corporation and the gardeners. The former maintained that it was within their discretionary powers to authorise the exclusion of the gardeners for the period during which such a national exhibition should be held, while, on the other hand, the gardeners insisted upon an absolute and uncontrollable right to the use of the market-house during the three weekly market days, during market hours, that is, from early morning to ten o'clock.

In considering these opposing contentions it is necessary here to notice what is the area of the market-place. This is set forth in the rules and regulations confirmed by the Sheriff on the 16th of October 1877, as follows:—‘The market-place shall comprehend the area of the market-house and the ground belonging thereto, situate at the east end of Princes Street and north end of Waverley Bridge Street, and the public roads, streets, courts, areas, and places situate within a radius of 100 yards measured from any point of the said market-house.’ The corporation, on the occasion of the Fisheries Exhibition, when they excluded the gardeners from the market-house, allowed them to hold the market upon the Waverley Bridge and along Princes Street up to the Scott monument, and on the other side along the street leading behind the Bank of Scotland. All this was within the area of the market place as thus defined in these rules. Such a definition of the area of the market-place could be made by the corporation without confirmation by the Sheriff at all, for it is not of the character of a bye-law for the regulation of the markets. The power to fix the area, and to alter it according to their discretion was specially reserved by the Act of 1874, the 26th section of which is as follows:—‘Nothing in this Act contained shall be held to affect the right and power of the corporation to fix, alter, and regulate markets and market-places, and establish additional markets, conferred or confirmed by the second recited Act, or by any other of the recited Acts, whether within or beyond the limits of the city.’

When therefore in April 1882 the corporation excluded the gardeners from the use of the market-house, and directed them to hold their markets upon the streets, they did not exclude them from the market-place, although they did so from the most comfortable part of it. Fortunately the weather was exceptionally fine at the time, and although some inconvenience was felt, the case was not so bad as it would have been had there been wind and rain.

The important question, therefore, falls to be decided whether the corporation can be restrained at the instance of market gardeners who are not bound to attend the market, and who are only obliged to pay dues when they use it, from granting occasionally the exclusive use of the market-house for any exhibition that may interest the public. The corporation have a market-house perhaps the most commodious in the Kingdom, on which they have spent, according to the statement made up by the City Chamberlain, the sum of £30,834, 10s. 10d. Of this sum nearly £6000 was advanced by the corporation, and the rest was borrowed on mortgage by them. From the statement of estimated gross revenue derivable from the customs and market dues, on the basis on which the Edinburgh Markets and Customs Act of 1874 was obtained, it appears that it was anticipated that a large revenue would be derived from the occasional use of the market-house for concerts, and other exhibitions. It appears from the statement of revenue, from 1st August 1875 to 1st August 1882, that there was derived from this source a total sum of £5307, 0s. 6d., whereas the market gardeners only paid for their stands during the same seven years £4051, 3s. There are other sources of revenue which are all necessary in order to meet the interest upon the debt, the most prominent of which is the poll-tax of a penny, payable by each person who enters the market during market hours: Further, there are rents of shops in the north gallery, rent of a portion of the market given off for an aquarium, and so forth. The expenditure of £30,834 was, according to the City Chamberlain, all necessary in order to make a good covering. But 1882 was the only year in which the actual came up to the revenue that had been estimated, although even in that year the revenue was not sufficient to meet charges by £669, 19s. 4d. Of the total revenue in 1882 (£3455, 7s. 7id.), the whole sum that came from the market gardeners was only £675, 1s. Mr Adam, the City Chamberlain, says—‘The revenue from the occasional use of the market for other than market purposes is a very important branch of revenue, and the account would be seriously injured if we were deprived of it. It has been strictly an occasional use, and at times when there was an exhibition of public interest—something that interested the whole community, or special sections of the community — it is within my knowledge that these have been frequented by very large numbers of persons. They have comprised cattle shows, dog shows, flower shows, concerts, bicycle tournaments, an assault-at-arms, and a fisheries exhibition. I do not think anything is charged for political meetings. When such occasional use has been taken, the Town Council have very generally done what they could do to consult the convenience of the market gardeners. (Q) And when in consequence of such use they have been put out, or some of them have been put out of the area of the market, has other accommodation been provided for them?—(A) So far as practicable. (Q) Within the area of the market-place as defined by the bye-laws?—(A) Yes. The original dues of 2d. per cart were voluntarily increased to 6d. after the market was built and before it was covered. I believe there were a few of the gardeners who declined to pay it. The rate of one shilling is now paid under Schedule A of the Markets and Customs Act of 1874.’

It is in these circumstances that the Court is now asked to declare ‘that the fruit and vegetable market-place, situated in the parish of Saint Andrews, Edinburgh, is vested in and held by the defenders primarily for the purposes of a fruit and vegetable market, and that the pursuers have a right to the peaceable use and enjoyment of the said market-place, or stands therein for market purposes, during market hours.’ Keeping in mind that the market-place is defined to be ‘the market-house and the ground belonging thereto,’ and ‘the public roads, streets, courts, areas, and places situate within a radius of 100 yards measured from any point of the said

Page: 360↓

market-house,’ it is plain that this conclusion cannot be affirmed as it stands. The pursuers no doubt intended by the use of the words ‘market-place,’ to indicate ‘market-house,’ but they have not so expressed themselves. But holding that they could restrict their conclusion to ‘market house,’ what is the case that they here make for the next conclusion, which asks that the corporation should be interdicted from ‘excluding the pursuers from the use and enjoyment of the said market-place for market purposes,’ and ‘also from troubling or molesting the pursuers and other frequenters of the market in the peaceable use and enjoyment of the said market-place or stands therein during market hours in time to come.’ This interdict is sought by reason of the fact that the corporation did give the use in April 1882 to the Fisheries Exhibition of the market house for three weeks, and this limited exclusion for that period is said to be an interference with the peaceable use and enjoyment of the building as a market house. Now this is a demand that cannot be acceded to. A building erected by the corporation at the expense of the community, intended for a variety of public purposes, cannot be demanded by one section of its frequenters for their use to the exclusion of all others. It is vested in the corporation for the public. The right of the gardeners to frequent it cannot be disputed. The 8th section of the Act of 1874 perhaps contains the best statutory recognition of such right when it provides that the ground floor of such market-place shall be used for the fruit and vegetable market, and that vacant stalls or shops may be used by the corporation for any purpose they think fit. This enactment is not inconsistent with occasional interruption of the use of the building, when the corporation think that higher and more general interests might be promoted by giving temporary possession of it to some other body. Of course any undue exercise of the discretionary power vested in the corporation, so as practically to interfere to a substantial extent, and contrary to precedent, with the business of a vegetable market, might be fitly made the subject of application for interdict. The exercise of all such discretionary power vested in public bodies may be controlled by the courts of law. But then a clamant case must be made out for such judicial interference, and this cannot be said to have been the case in the present instance.

“No part of the expenditure for the building was contributed by the 102 persons who are pursuers in this action. Only twelve of them carry on business within the burgh of Edinburgh,— the rest being scattered over the counties of Edinburgh, Linlithgow, Haddington, and Fife. No doubt they pay a shilling for the stance when they use it; but for this shilling they get ample recompense in the accommodation which they receive. It seems, therefore, somewhat unreasonable that the corporation, who have erected this commodious house at the expense of the community, should not be allowed to take the occasional use of it for some object which they deem of general interest to that community, though it might put the market gardeners for some weeks to inconvenience. Undoubtedly the expenditure of £30,000 was not made exclusively to facilitate the trade of the market gardeners; and it is not asking too much from them that they should subordinate now and then their convenience to the convenience of the community at large.

The peaceable use and enjoyment of the market-house which they claim is very little interfered with by the exercise of the discretionary power of the corporation in compelling the gardeners to hold their market within another part of the market-place than the market-house for some weeks in the year. The exercise of this power cannot, as already said, be made capriciously and without adequate cause. But the judges—in the first instance at least—of the expediency of using that discretionary power must be the corporation itself. No case has been made out by the pursuers for the interdict here sought. The right of the gardeners to peaceable use and enjoyment is not disputed. It is only maintained, and rightly maintained against them, that an occasional interruption of exclusive possession is not inconsistent in the circumstances with that right.”

The pursuers reclaimed, and argued—The rights of the pursuers really begin in I860, since prior to that the market was held in different places. On a sound construction of the Act of 1860 and subsequent statutes there was a dedication of this piece of ground to the purposes of a fruit and vegetable market. The Legislature by the Act of 1860, sec. 9, for the first time fixed the place for the market, and the railway company were taken bound to construct a new fruit and vegetable market. The Act of 1865, which proved abortive, repeated this section, but carried forward the obligation therein contained. The final agreement between the corporation and the railway company was embodied in and confirmed by the Act of 1866, in terms of which the market-place was constructed. Negotiations were thereafter commenced between the market gardeners and the corporation, which resulted in the passing of the Act of 1874, and the covering in of the market-house by the corporation. On the other hand, the market gardeners, in consideration of this advantage, agreed to pay higher rates for the use of the market. The Magistrates were not entitled, either on a construction of the statutes or at common law, to exclude the pursuers from the market-house for a period of three weeks, and force them to hold the market upon the streets.

The defenders and respondents argued—The burgh had had a right from time immemorial of holding a fruit and vegetable market, and the Magistrates had had the right of making regulations with regard to it. The burgh records showed that the Magistratesde facto made use of the powers conferred, and had shifted the place of holding the market from time to time. These powers were confirmed by the Act of 1840, and up till then it was clear there was no dedication. Therefore unless the pursuers could show a dedication from the terms of any statute they cannot succeed. But the reason why the statutes were passed was because the railway company wanted the land, and it was prima facie unlikely that as a result of this transaction there should be a dedication of the new ground when ex hypothesi there was no dedication of the old. True, there was in the agreement embodied in the Act of 1866 a stipulation that the railway company should construct a new market, but that was merely instead of

Page: 361↓

handing over a sum of money. Any doubt on this point was removed by sec. 26 of the Act of 1874. The market-house was covered in by the corporation at a great expense, and the income derived from sources other than the market, forming by far the largest part of the revenue, was in use to be applied in extinguishing the debt on the building further, the pursuers at common law had the power and discretion to appropriate the market—house to public purposes of utility. Every case in which the market gardeners were temporarily excluded from the market must be judged of on its merits, and in allowing the Fisheries Exhibition the Magistrates exercised properly and in good faith their discretionary powers.

Authorities— Curwen v. Salkeld, 3 East. 538; Henderson v. Earl of Minto, June 1, 1860, 22 D. 1126; Clephane and Others v. Magistrates of Edinburgh, February 15, 1864, 4 Macq. 603; Reg. v. Hicks, 4 E. and B. 633.

At advising—