to build to a certain height, it does not follow that Feb. 9, 16, they had a right to build beyond it. 1818. PLAN.- Lord Eldon, (C.) This case, which originated in a dispute between a club, called the New Club, pro- Judgment. Feb. 16, 1818. prietors of a house in St. Andrew's Square, and the proprietor of an adjoining house, comes here by appeal from two interlocutors of the First Division of the Court of Session. The first and principal interlocutor is this. 66 Upon report of the Lord Alloway, " and having advised the memorials for the parties, "the Lords advocate the process: and, in the ad"vocation at the instance of Mr. John Marjori"banks and others, find that they are entitled to "erect the passage to their proposed kitchen, bil"liard-room, and baths, of the height and dimen"sions as the said passage is delineated in the plan "in process," I request your Lordships' attention particularly to these words, "and decern accord ingly and in the advocation at the instance of "Charles Gordon, find, decern, and declare in terms "of the interlocutor of the Dean of Guild, find the "said Charles Gordon liable in the expenses of process." 66 The other interlocutor related merely to the expenses. When I called your Lordships' particular attention to the words "as the said passage is delineated "in the plan in process," I did so for the purpose of bringing under your notice the distinction between these interlocutors and that of the Dean of Guild. That magistrate having considered "the petition for the managers of the New Club, with PLAN.- Feb. 16, 1818. the answers thereto for Charles Gordon, Esquire, replies, duplies, triplies, titles, and whole process, " and also visited the premises, repels the objection, "that the use to which the proposed buildings are "to be put is of the nature of a nuisance: finds, "that when the ground on which the New Town is "built was feued, a regular plan was laid down, in "which the health and comfort of the inhabitants 66 66 appear to have been consulted, by disposing of the "back ground into areas for the promotion of a free "circulation of air, and adding beauty to the appearance, as well as of affording convenience to "the inhabitants, and from which plan no deviation ought to have been permitted: finds, that in cases "where any material deviation from this general 66 r plan has taken place, the same has either arisen "from the consent of the conterminous heritors, or "from not being opposed by the public, or those having interest therein, in proper time: finds, "however, that no material deviation or inconvenience will arise from the proposed change on the "building belonging to the pursuers; therefore, 66 grants warrant to them to make the alterations "and additions craved, conform to the plan marked "as relative hereto, under this special exception and "condition, that the height of the passage to the proposed kitchen, billiard-room, and baths, does "not exceed that of the garden or division-wall, "and decerns." Now the distinction is in the particular language by which they declare the right of the members of the club to build. The Court of Session declares their right to build their passage as delineated in the plan in process, that is, in some parts higher than the division wall. The Dean of Feb. 16, 1818. Guild was of opinion that they were not entitled to build higher than the wall. PLAN. CHARTER.- The question arises out of a claim on the part of the club to build on the area behind their house, according to a plan delivered. That was opposed on two grounds, as was stated; 1st. That the buildings would be a nuisance; and certainly if the Appellant was well founded in that, he had a right to abate the nuisance. It appears hardly possible to make out the objection on that ground. But the principal question is, whether, regard being had to the original plan of the town, each heritor could maintain the proposition that the conterminous heritors had come under an obligation not to build on the back areas. The original plan is one delineating the streets and squares of the intended town, and scites of the houses; the areas of the feus being coloured green, and marked with letters; and, without entering into the question with respect to the magistrates, the question here is, whether as between Question. the heritors themselves there is such a reference to the plan as that the law can infer the existence of contracts between the parties that the ground should always be kept in the state in which it was delineated on that plan. With respect to St. Andrew's Square, we are told that the plan represents the scite of the house, and that all the rest is to be kept free; that is, not covered with buildings. But what further information was given by the plan which communicated nothing as to the areas, except in so far as it represented the ground as in grass, we have not learned at our bar. It is stated in the cases PLAN CHARTER.- Feb. 16, 1818. here, that the plan did not represent even the depth of the houses; and it was also stated that, although the areas have been separated by division walls, there is nothing in the plan to show that they were to be so separated: nothing to show that the walls were to be any particular height, or that they were all to be of the same height. Charter. The charter now belonging to the club was granted to Mr. Ross, afterwards Lord Ankerville, which refers to the lot marked letter N in the plan, the adjoining lots being in the same manner, I presume, marked with the letters M and O: I mention this charter rather as evidence of the understanding between the magistrates and the feuar, than as a thing which is to bind the several heritors as between themselves; for the question here is not with the magistrates, but the question is whether the transactions as to that plan have been such as that it can be legally inferred, that the several heritors have contracted with each other in such a manner as that each has a servitude over the property of the rest, so as to give him a legal right to restrain them from making that use of their property which otherwise they would be entitled to make. Looking at the charter then first as evidence of the understanding between the magistrates and feuar, it conveys, besides the house, cellarage, and back area, "the whole space of ground within the "line of the street-ways of the square as now level"led and enclosed by a parapet wall and iron rail, " and that as a common property with the several "feuars around the square. But under the condi"tion that the aforesaid space be used, allenarly, CONTRACT. "for the pleasure, health, or other accommodation Feb. 16, 1818. "of the feuars or their families; but no way to be PLAN."converted into a common thoroughfare, or used CHARTER."to any other different purpose whatever." So that, the plan representing the square in front, the charter grants that, but under the restriction to be used in the manner mentioned. With respect to the other parts of the subject disponed, the dwelling house, cellarage, and back ground, there is no restriction, except on the right "to subfeu, sell, or dispose of "all or any part of the piece of ground, before disponed;" and then follow words from which the Respondents have drawn an inference in their favour, 66 or house or others built thereon." On the one side they ask, if it was not intended that there should be any building but the front house, what was the meaning of the words "or others built thereon?" And on the other side they answer that they may mean appurtenances, and not detached buildings. But still the Respondents may say, that this is a question to be determined between them and the conterminous heritors, and not between them and the magistrates. And indeed after having said "all or any part of the piece of ground before disponed," the other words might have been left out, so that, in Scotch, as well as in English instruments of this kind, there may be surplusage. Then there is another clause of the charter declaring that it shall be lawful for the proprietor" to exerce any other act of ownership which may "not be inconsistent with the manner of holding 66 hereby prescribed," but under this declaration, that if the said D. Ross or his foresaids shall con |