PROCEEDINGS AGAINST THE MAGIS TRATES OF EDINBURGH, RELATIVE TO THE ERECTION OF BUILDINGS ON THE NORth Bridge."

Court of Session-Second Division.

THIS case, which has occupied so much of the time of the Court, and which has excited so much interest in the public, was advised by the Second Division of the Court, on Tuesday the 3d of February, after long written pleadings, for the complainers, and for the Magistrates of Edinburgh and their feuars and sub-feuars, and after hearing counsel on four several days. The pleas on which the complainers seemed mainly to rely are

1st, That, according to the original plan of the New Town, no buildings should be erected on the south side of Prince's Street, which is delineated on that plan as pleasure ground.

2d, That, after the right of the Town to build on the south side of Prince's Street had been challenged, in 1772, the town and the feuars had submitted the question to the late Sir David Rae, Bart. (Lord Eskgrove,) whose decreet arbitral ascertained how the ground to the south of Prince's Street, and between the Bridge and the Mound, was in future to be kept; and that by virtue of this decreet, and of declarations in the charters of the feuars, that this ground should remain as described in the decreet, the complainers had acquired servitudes, which were invaded by the operations complained of. And,

3d, That the Act of Parliament recently obtained, authorising the erection of the buildings in question, as it neither recognised those servitudes, nor provided for the indemnification of

those possessing them, could not be held by implication as taking them away.

The answers of the Magistrates and the other persons concerned briefly

were

1st, That the town had never given up their right to build on the south side of Prince's Street, as appeared from a reference on the original plan to an Act of Council, containing a declaration to that effect, and from other documents.

2d, That the servitudes founded on were of the most trifling kind; and,

3d, That the Act of Parliament in question must be judged of according to its intent, which was obvious, and that the only remedy was by applying for an act to repeal it.

In the course of the pleadings, the counsel for the complainers stated, that it was a matter of indifference, whether an interdict was or was not granted, and he produced printed copies of summonses for having the rights of the complainers declared in due form, and concluding for demolition of the buildings.

Various subordinate pleas, respecting the want of regular notices of the intention to apply for the act, the ho mologation or acquiescence of the complainers till the buildings were far advanced, &c. were also brought for ward.

The Court seemed generally of opi nion, that the answer of the Magis trates to the first plea was well founded, but all the Judges seemed clear, that the servitudes acquired by the decreet arbitral and charters following its date, and containing reference to it, were not taken away by the Act of Parliament authorising the buildings. The Court accordingly passed the bills

of suspension-Lords Glenlee, Bannatyne, and Robertson voting for the judgment, and Lords Justice Clerk and Craigie voting for refusing the bills, on account of the acquiescence of the complainers for so long a period.

Both bills of suspension are thus passed, but without interdicts, that the question may be deliberately tried. [The following notes of the opinions of the Judges have been published.]

Lord Robertson doubted exceedingly whether there was any servitude constituted in favour of the Prince's Street feuars over the ground betwixt that street and the North Loch, by the reference made to Craig's plan, in the original feu contracts, or bargains for feus, because, upon the face of that plan, reference was made to that act of council, whereof the 6th clause implies at least, if it does not expressly reserve to the town the right of building on that ground, providing only that a 96 feet wide street shall be left. Neither the decision in Deas case, nor Lord Mansfield's speech, supported the plea of the suspenders claiming such servitude, and if that (which seemed mainly relied on in the bill, though not in the subsequent pleadings) were now the best or only, plea of the suspenders,he rather thought he would be for refusing the bill. But that is not the case; Lord Eskgrove's decreet arbitral established one clear and indisputable servitude, viz. that of a pleasure ground to the heirs and successors of the submitters, on the ground west from Trotter's warehouse to a point a little to the east of Hanover Street, and upon that servitude his difficulty about refusing the bill now rested. If the question had been, whether the Magistrates of Edinburgh were, on their own authority, entitled to disregard that servitude, and make roads through that piece of ground,

he would say, they most undoubtedly were not. But an act of Parliament had been obtained, and the question occurs, what is to be the effect of this act of Parliament? Now, upon this question, though he could not entirely agree with Mr Cranstoun that the Act of Parliament had no binding force, except in relation to those who were parties to it, yet his opinion was, that it being unquestionably a private and not a public statute, it could not take away any rights of persons who were not parties to it by implication. If the statute had expressly declared that the servitude created in favour of the Prince's Street feuars was to be abated for the purposes of the act, then he conceived effect must be given to that abatement, notwithstanding that the Prince's Street feuars were no parties to the act. But the act said no such thing, and since the servitude was not expressly abated by the act, he conceived it remains still in full force, unless it has been lost by either direct or tacit acquiescence of the feuars them. selves in its abatement. Now what was the consequence of the subsistence of this servitude? Why, the consequence of it is, that the Magistrates of Edinburgh could not make the road, on the making of which their power to erect the buildings complained of is made by the act of Parliament itself entirely to depend. Now, as he was not prepared to say that there had been such an acquiescence on the part of the suspenders as amounted to a dereliction of their servitude, he thought it his duty to pass the bill of suspension, in order that the rights of the parties might be deliberately investigated. But even if the suspenders

had not waived their demand for interdict, he would have been clear that no interdict ought to be granted in hoc statu, the buildings having got to such a height before the interdict was applied for.

Lord Craigie concurred in most of the observations that had been made by Lord Robertson, but he was led to draw a very different conclusion from them. He did not think that the servitude the complainers, or some of them, had on the ground to the west of Trotter's gave them such a title to oppose these buildings-now that the Act of Parliament was passed, that the Court ought to pass the bill. And even if the complainers had a title, he denied that they had any substantial interest to maintain this plea. It must be a very substantial interest, indeed, that would induce the Court to pass a bill which was to have the effect of destroying 40,000l. worth of property. He did not find himself called upon, sitting there, to give any opinion upon a question of taste; what he was to decide upon, was the rights and the interests of the parties; and he denied that the loss of a view, or the alleged ugly appearance of these buildings, was such an interest as could entitle the suspenders to come to this Court, and call on their Lordships to destroy so much of the property of respectable persons, who had bona fide expended their money in these buildings. If they had ground to complain, they were bound to have come forward before the large pile of building in St Ann's Street was taken down. It was absurd to say that the suspenders were not apprised of what was going onthey must not stultify themselves so as to say that they could not see the effect of these operations. Upon the whole, he was clear the bill ought to be refused.

Lord Bannatyne regretted exceedingly that the gentlemen who took up the cause of the feuars in 1772, had not persevered in a more manly manner than they had done. He regret ted exceedingly that they had come to any compromise, and said, the proposal to build in front of Prince's

Street, or to lay down a single house to the west of the Bridge, on that side of the street, was a disgrace to the Magistrates (here symptoms of applause were manifested by the audience, which the Lord Justice Clerk immediately repressed,) and if the feuars of that day had not a legal title, under Craig's plan, to stop the proceedings of the Magistrates, which might perhaps be doubtful, they ought to have fallen on some plan to make it the interest of the Magistrates to have that space open; but the Court must decide the plea of the present suspenders upon its own merits. He agreed with Lord Robertson that the suspenders, or some of them at least, had both sufficient title and a clear interest to complain; but whether they had done any thing to take away their title, or pass from their interest, this was perhaps a doubtful matter, and he was, therefore, of opinion the bill ought to be passed, to try the question of right. As to the interdict, from the length the houses have already got, it seems improper to grant it; and that part of the prayer of the bill had accordingly been waived.

Lord Glenlee concurred in the opinion which had been so perspicuously delivered by his brother, Lord Robertson, in regard to the servitudes and the nature and limited operation of the Act of Parliament. But he could have no doubt, that however clear the right and interest of the complainers to insist on this suspension might have been, yet that a certain acquiescence, on their part, in the operations carried on under the pretended authority of this Act of Parliament might bar them, personali exceptione, from prosecuting that right; therefore, the question came to be, whether there had been such an acquiescence or not? Now, he was certainly not prepared to say that the toleration of the acts of making the road opposite to St

Andrew's-street, and pulling down the houses in St Ann's-street, and even the erection of the new buildings to a certain height, was such an acquiescence as ought to cut off the right of the suspenders to enforce their servitude. It was a very serious question, and one on which prudent men would deliberate and consult, and be well advised, before they took steps, what degree of encroachment on their rights they should submit to for peace sake, particularly if the encroachment was said to be made under the autho. rity of an Act of Parliament. It was not till after these buildings got to a certain height that their injurious nature, the deformity they have brought upon the town, particularly from the unseemly appearance of the back part, which happens to be the part most seen, could be perceived; and, if the challenge was brought in due time after the evil became apparent, he apprehended that was all that was necessary or could be required. Upon the whole he thought the bill ought to be passed.

Lord Justice Clerk coincided with what had fallen from most of their lordships. He was clear there had been nothing decided by the remit made by the House of Lords in the case of Deas; neither did the decisions in Butterworth's case, and others referred to, bear on this case. He must also say, his mind was quite made up that there was no servitude against building in front of Prince's-street constituted by Craig's plan. The reference to the Act of Council completely shewed the right of the magistrates to build upon that ground, without any other reservation, than that the houses should be at the distance of ninety-six feet from the north side of that street. But he was not less clearly of opinion, that a servitude of great value and importance was created in favour of certain feuars in

Prince's-street, by Lord Eskgrove'sdecreet arbitral. By that decreet arbitral, there was also a servitude created as to the height and form of the range of houses in Prince's-street. It was expressly declared that these should be finished according to a plan; and if they were either voluntarily or by accident thrown down, it was, in his opinion, quite clear the proprietors would not be entitled to rebuild them upon any other plan than that which was sanctioned by the decreet arbitral, But not so the servitudes claimed as to the houses in St Ann's-street; there is no reservation expressed in the decreet arbitral respecting these. One house is ordained to be dressed up de. cently, and the others are allowed to be built, both at the sight of the persons named in the decreet arbitral; but there is no restriction as to height or any thing else. And as to the street, there is nothing said about it, except that the west side of that street is the point taken in describing the measurement for calculating a space on which buildings were to be allowed to the east of Hanover-street. Now as to the servitudes that were constituted, his lordship was quite clear they had not been taken away by the Act of Parliament. The question as to the effect of Acts of Parliaments, of the nature of this act, was solemnly decided within these few years in a case to which he was surprised that none of the counsel had referred the case of Haig and the Magistrates of Edin burgh. In that case it was pleaded (his lordship read from the printed papers) that the town had three different Acts of Parliament, not only allowing them to drain the Meadow, but exactly prescribing the way in which it was to be done. The consequence of draining the Meadow in that way would have been to carry off the water which supplied Lochrin distillery. Mr Haig therefore complain

ed of the intended operations of the magistrates by bill of suspension and interdict, and the magistrates had three different Acts of Parliament, every one more clear and explicit than another; yet because these acts did not take away Mr Haig's servitude, nor provide a compensation for it, the Court not only passed the bill, but after a proof and hearing in presence, declared the interdict perpetual. Had the complainers in this case, therefore, come forward in due time to complain of the operations by which their servitude was invaded; had there been no acquiescence on their part in those operations, his lordship would have had no doubt in this case; for though he did not think Lord Eskgrove's decreet arbitral created any servitude on the building in St Ann's-street, yet indirectly, through the means of their undeniable right, to have prevented the magistrates from making the new access to Canal-street, they might have completely frustrated the intention of altering that street. It was not until after a new access was made, that the magistrates had any right to alter St Ann's-street; and if the complainers had prevented the making that road, it would have followed that the buildings complained of never could have been erected. But the inhabitants of Prince's-street, or the present suspenders, did not complain of that road; on the contrary, they allowed that road to be made under their eyes more than two years ago, and to be opened and used as a public road for the purpose of carrying the materials for these very buildings. This his lordship considered a complete acquiescence in the whole measures carried on under the authority of the Act of Parliament. He required no farther evidence of the homologation, which he considered completely established, and he there fore could not give the suspenders the encouragement of passing the bill.

The Lord Justice Clerk took occasion, in delivering his opinion, to allude to paragraphs in the newspapers, as convincing him that there were not any sufficient grounds for the charge of concealment of the purpose of the act, which had been brought against the magistrates and the other parties concerned. His lordship at the same time admitted, that it had occurred to him as strange that the House of Commons, when dispensing with notices not having been given as usual at Michaelmas, had authorised notices of a more limited kind only in one newspaper; and he also admitted, that if he had been one of the Committee of the House who received the returns to these notices, he was by no means sure if he would have held them as a suffi. cient compliance with the orders to give intimation of the purposes of the act.

We shall here introduce the close of the proceedings in this remarkable case, which took place at a meeting of the inhabitants, held on the 22d May, to receive and consider a report from the committee, recommending a compromise with the Lord Provost and Town Council, and with the feuars and subfeuars of the buildings in question. Sir JAMES FERGUSON, Bart. of

Kilkerran, in the Chair. Mr Francis Jeffrey (as a member of the committee) opened the business, and detailed the steps taken by the committee to prevent the completion of the " obnoxious buildings," and to obtain a legal decision to reduce them to one story above the level of the bridge. The learned gentleman stated, that the committee was deficient in the main sinew of war, viz. a large supply of metal, and said, that the funds subscribed amounted to something more than 700, which had already been nearly expended. Mr Jeffrey noticed the apathy that prevailed on the part of the