Duke of Buccleuch v Magistrates of Edinburgh. [Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judgment Date | 27 May 1864 |
| Date | 27 May 1864 |
| Docket Number | No. 191 |
| Court | Court of Session (Inner House - Second Division) |
Lord Jerviswoode. R.
Property—Boundary—Street.—
THE whole of the ground upon which George Street, Edinburgh, is formed, and the ground to the north and south of that street, now occupied by houses, and the sunk area and cellars under the foot pavement, was feued out according to a plan on which was delineated the general line and form of the street. The houses erected on these feus on the south side of the street are built in line, and there is a clear space of 8 or 9 feet occupied as sunk areas between the line of houses and the foot pavement, which is separated from the areas by an iron railing. By charter, dated 1st July 1789, the Magistrates of Edinburgh feued to the Earl of Moray and others, as trustees for the Assembly Rooms, ‘All and whole that piece of ground on the south side of George Street, measuring 138 feet 10 inches in front of the lot marked on the feuing plan letter A A, whereon there is now erected the foresaid Assembly Rooms …. bounded as follows:—…. on the north by George Street.’ At the time the charter was granted the Assembly Rooms had been erected, but the space of ground which is occupied as areas in the adjoining feus, was in this feu paved over in connection with the pavement up to the wall of the building, and there were no cellars (and never have been) under the foot pavement fronting the building.
In 1817 the trustees for the Assembly Rooms applied to the Dean of Guild Court for authority to erect a portico and arcade in front of their building, and on the ground corresponding to the areas in the other feus. Their petition was duly intimated to the city-chamberlain, and the authority was granted. It appears, however, that there was marked on the plan relative to this petition, an alteration to the effect, that the front of the portico should not project beyond the ‘line of the iron railing in front of the houses.’ Notwithstanding of this the portico was built actually projecting beyond the line of railing, and has remained in that state ever since.
On 17th June 1857 the pursuers presented a petition to the Dean of Guild for authority, not to extend their building outwards, but to enclose part of the open portico. In reference to this application, however, a question as to the petitioners' right of property to the ground beyond the main wall of the building was raised, and process was sisted till the trustees had had their right declared by declarator. The trustees accordingly, on 14th December 1861, raised an action of declarator, concluding, first, ‘that it ought and should be found and declared, by decree of the Lords of our Council and Session, that the ground extending in front of the said Assembly Rooms, from the line of the northern main wall thereof to the line of the iron railings enclosing the sunk areas in the front towards George Street of the houses erected on the south of the said street, and which ground measures 138 feet 10 inches or thereby in length and 8 feet 4 ½ inches or thereby in breadth, is part of and comprehended within the boundaries of the piece of ground on the south side of George Street aforesaid;’ and second, ‘that the piece of ground immediately to the north of, and extending northwards from the line of the iron railings enclosing the sunk areas in the front towards George Street, of the houses on the south side of the said street, to the line of the north side of the curb-stone of the foot pavement on the south of George Street aforesaid, and which piece of ground measures 138 feet 10 inches or thereby in length, and 10 feet 5 inches or thereby in breadth, is part of and comprehended within the boundaries of the said piece of ground on the south side of George Street aforesaid, but...
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Houstoun v Barr
...a dwarf wall and railing substantially as described in cond. 9 of the record.’ 1 Duke of Buccleuch v. Magistrates of EdinburghUNK, (1864) 2 Macph. 1114; Louttit's Trustees v. The Highland Railway CompanySC, (1892) 19 R. 791; Johnstone v. Meikle & MurrayUNK, (1901) 9 S. L. T. 2 Herrick v. Si......