Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

Bailie Robert Lermont
v.
William Brown, The Incorporation of the Skinners of Edinburgh, and Others

1673. June.

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The said Robert Lermont, being to rebuild a waste tenement he had acquired in Skinner's Close, obtained from the Council of Edinburgh, after a visitation appointed by them, and a report thereon, an act giving him liberty to oversailyie the close, having both sides thereof, and cast a transe over it for communicating with both his houses, as also, for building fore-stairs alongst the said close; and after he had proceeded a pretty length in his building, a suspension was put in by William Andersone, William Brown, the Skinners, and the other neighbours in the close, of the said act and warrant, and for stopping his building. And the Lords having ordained them to be heard upon the bill, they Alleged, 1mo, The said act behoved to be suspended, because only the Dean of Guild Court, and not the Council of Edinburgh, were competent judges to such questions, in prima instantia. 2do, The neighbours were not heard nor cited, as uses and ought to be. 3tio, The ground whereupon the council granted him the said liberty, was frivolous and unjust, videlicet, that none of thir complainers had any servitude upon his tenement, and, therefore, he might raise it ad cælum if he pleased, though it should damnify their lights: because the passage of the close is common to all the heritors there; and as he could not encroach or build upon the street of the close, so neither can he oversailyie; seeing that is directly to appropriate to himself that void which is common, and whereby the houses of the close receive their light, and will diminish all their rents upon that account. And for stopping such encroachment there needs no servitude: but in that case that just maxim of the law takes place, in re communi potior est conditio prohibentis, and every neighbour who is prejudged may stop and oppose. (Per l. 9, 11, 14, et 24, D. de Servitutibus urbanorum; L. 8, p. aristo; 5, D. Si servitus vindicetur; L. 8, C. de Servitutibus.)

Answered,—What he has done is authore prætore; (vide l. 28, D. De communi dividendo;) and what they crave is invidious, and only in emulationem vicini. They have no prejudice, but the town is decored. As to the first, the council, if not more, are every quite as competent as the dean of guild, and their power is cumulative. (Vide Hayning and the Town of Berwick's pleading.) To the second, though they needed not call the neighbours, yet they were cited, and were present. To the third, it is a mistake to say, a simple interest in a common passage in a close is sufficient to hinder an oversailyie; seeing all it can import is, that the passage be preserved as convenient as before, and which is done by the height of this trance and oversailyie; and without they can condescend upon some eminent prejudice, or a servitude they have, they cannot stop it; and the axiom In re communi is not applicable here, seeing the res communis, videlicet, the common passage, is not wronged nor encroached on, and for inconsiderable prejudices to light, the council has power to gratify a neighbour, notwithstanding thereof; and as for the gable lights, they are never allowed in Edinburgh to interrupt a building.

Replied,—Their inconveniencies and prejudices are very great and palpable; for not only does he stop their lights, and make their houses both unwholesome and unpleasant, taking away that benefit of the sun which God hath given both to the just and unjust, and deforms the beauty and regular symmetry of the city, but also closes up William Brown's gable lights, and would introduce, without any right, a servitude tigni immittendi upon him; and all, forsooth, that is objected to palliate thir enormities is, that there is a liberty and faculty allowed by the law to all persons to build upon their own ground ad libitum et arbitrium, he owing no servitude; whereas, the lawyers do state that servitus altius tollendi rather to be naturalis libertas quam servitus, yet all do understand that natural privilege and faculty cum mica salis, videlicet, that licet prædio dominanti meliorem facere conditionem prædii servientis, non autem deteriorem. And so in Hayning's case with the town of Berwick, your Lordships, without considering that illimited and universal liberty re sua utendi et abutendi, inclined to the legal, just, and natural restrictions put thereupon; and therefore ordained the material prejudices done by letting out the said loch, to be condescended on, and would have accordingly determined. And this unbridled licence of building and heightening, in all well regulated commonwealths and cities, is retrenched, without any need of a servitude. And so it was used in Rome, where, by law and consuetude, they had a general gage of height appointed for all houses within burgh, and a reciprocal and mutual servitude amongst all the inhabitants, ne altius tollatur; both that there might be an uniformity in houses, and no deformity in the city, by the superbity of some edifices and low-ness of others; as also, that no man might prejudge his neighbours, by building higher than was appointed by the law. See vestiges of this in L. 11, D. de servit. urbanorum; l. pen. p. 1, C. de ædificiis privatis. See Vinnius ad par. 1, Instit. de Servit. et p. 3, de actionibus.

The Lords, after they had nominated two of their number to visit the ground, they found by their report no such prejudice, and therefore adhered to the act of council, and found their opposition ill grounded.

Robert Lermonth lived but about eight days after the gaining of his cause.

Advocates' MS. No. 408, folio 221.