Feb. 9, 16, 1818. PLAN. CHARTER.- The magistrates were not at liberty to alter the plan. They may perhaps say that the plan shows only the original intention of the magistrates: and that they were to be governed only by the charter. But there is a special reference to the plan in the charters and, if they adopt it for one purpose, they must take it for all purposes. They admit that they are bound by it as to the front of the house, and they must therefore take it as their rule in every other particular: and the violation of the contract in one point is no reason for violating it in any other point. They infer from the clause in the charter by which they are allowed "to subfeu, sell or dispose of all or any part of the 66 66 piece of ground, house, or others, built thereon, "&c." that it was intended that the back area should be built upon. But the word others does not bear out that argument; and it is a forced inference. They also rely on the clause stipulating that "if the premises should be converted into "breweries, &c., the magistrates should not be "liable to multures, &c." But that gave authority neither to build nor to convert into breweries; but only, provided that in case the premises should be converted into breweries, the magistrates should be free from certain consequences. (Lord Eldon, C. Do you contend that according to the original plan this was always to remain a garden. The case set up here is only this-that they should not build higher than the division wall. But how were they permitted to build at all, if by the plan this was always to be a garden ?) We carry it farther, that they were not permitted to build at all. The 1818. CHARTER. colour showed that it was not to be built upon. Feb. 9, 16, True, stables, &c. had been built there: and it was not thought of any consequence to prohibit PLAN.— them, as they were only of the height of the wall, CONTRACT. and did not obstruct the light. But that is no reason for not insisting upon the right, when the contract is violated in a more injurious manner. In Deuar v. Young, the court seems to have considered the plan as the common agreement; and yet, in that case, there was no reference to the plan; so that our case is stronger. The case of Campbell, decided in 1815, is also in our favour. The buildings are, besides, a nuisance. Lord Advocate (for Respondents). v. The only restrictions in direct terms are the conditions under which they were to be at liberty to subfeu and convert the premises into a brewery, and the provisions with respect to the area of the square. There is nothing in the charter to prevent the erecting of buildings on the back area. But they say there is in some particulars a reference to the plan; to which we answer in the words of one of your Lordships in the case of Gibson, that it would be Gibson ante, dangerous when 'men put their contracts in the 2 vol. 312. solemn form of a charter, to consider that as a condition of the contract, about which there was some representation when the contract was entered into, but which was not mentioned in the charter. But supposing the plan could be taken into account, nothing appears on the face of it respecting the height of the wall: every case they cite is totally subversive of their own argument. Deci 313. sions are referred to for the purpose of showing Sir S. Romilly. They have in their favour only the letter N and a green colour. It is clear from the charter, and even from the conditions and restrictions in it, that it was understood that they might build on the back area: but their argument is that some clauses ought to be struck out, and others substituted which are not there, merely on account of the green colour on the plan. They argue that the parties ought to be governed by the plan, and that no buildings at all should be erected on the back area: and next they say that the buildings are a nuisance, independent of the plan. With respect to the first point, they rely on the case of Deas, in which an interdict against building on the ground in front of Princes-street 1818. CHARTER.- was refused below. That was reversed by this Feb. 9, 16, House in order to give an opportunity to try the question of right. The judgment of this House in PLAN.-that case was said below to have established this, that the plan was the common law of the city of Edinburgh, and that the magistrates were bound to make good their representations in the plan. By the plan, the ground in front of Princes-street was to be converted into gardens, terraces, and pleasure grounds. Did they then make good, or were they required to make good, that representation? No such thing. The magistrates were restrained from building upon it; and that was all. That decision could not make the plan the common law of Edinburgh. Common law was common usage, and it certainly had been common to build on these back areas. The restrictions, when intended, were put in express words. There was no pretence for the allegation that the buildings were a nuisance, independent of the plan. Mr. Brougham (reply). There were obvious reasons for expressing the restrictions as to the interjecting of any superior, and relieving the magistrates from certain claims, without excluding other restrictions. They interfered only for their own interests. (Lord Eldon, C. Coach-houses and stables were generally built on these areas.) That was by sufferance. (Lord Eldon, C: One of the Judges (Lord Meadowbank), a great authority, speaking of the case of Deas, says, that he held it to be the common law of the city of Edinburgh.) He may have alluded to the custom. True, build 1818. PLAN.- Feb. 9, 16, ings up to the height of the wall were suffered by Gordon to be erected without opposition, because no serious inconvenience resulted from them. But now it was become a matter of serious inconvenience. Upon their argument there was nothing to prevent them from erecting buildings on the back area as high as the club-house. That, they may say, would obstruct the light; but so does any building beyond the height of the wall, pro tanto; and we have a right to prevent their building an inch above it. All the feus are referable to the plan, which is therefore part of the feus. What prevents their erecting buildings in the front? They must refer to the plan. A servitude may be inferred where it is not mentioned in the titles. Deuar prevented an appeal by paying the costs, but did he suffer the other party to build? (Lord Eldon, C. If the inspection of the plan can raise a contract, then all the houses ought to be of an equal height; and all the walls likewise; and there ought to be no buildings at all on these areas.) One has a servitude that another's wall should not be higher than his own; but, in order to object with effect, he must have an interest: he must show that his light is obstructed, and that is a question of fact. If he is not injured, he could not object to a remote wall being higher. But they have not only raised their buildings considerably higher than before, but have put three times the weight on the party wall; and we have a right to prevent the weight as well as the height. The whole principal of the civil law with respect to servitudes shows it and even if they had a right |