United Kingdom House of Lords Decisions

Clelland built several houses upon different parts of the ground so feued by him. He likewise sub-feued three parcels of the ground to persons who built houses thereon. Afterwards he sold the remainder to the respondent; and Mr. Ferguson having made known his design of erecting buildings in the form of a square upon his area, the governors, on the ground that this would interfere with the interests of the Hospital, brought the present action of declarator, to have it found and declared, in terms of the above clause, that the feuar could not use the said ground in any other way than by the ordinary labour of the plough and spade without their consent. In defence, it was contended that there was no express prohibition against building houses, or erecting dwellings on the ground, which in this case was the legitimate object of the feu. And the respondent was only taking the beneficial use of those rights which are naturally consequent on the power of disposal in the vassal. That the superior could not extend the above clause to limitations and restrictions not expressed; and that the general words of the above clause cannot in law go beyond the particulars expressed.

July 30, 1773.

The Court pronounced this interlocutor:—

“Find the defender, Walter Ferguson, is entitled to carry on his buildings on his own grounds mentioned in the declarator.”

And on reclaiming petition the Court adhered.

Against these interlocutors the present appeal was brought to the House of Lords.

After hearing counsel, it was