Book I.

of the kingdom. Communities are dissolved, either by the expiration of the term to which they are limited, if they be temporary; or, 2dly, by act of Parliament; or, 3dly, by forfeiture; when they abuse the powers intrusted with them: In which last case, though. all the members must suffer in their political capacity, no prosecution lies against such of the individuals as had no accession to the crime. After a community is dissolved, the private members are not, in the general case, bound, even subsidiarie, for sums borrowed by the corporation. The estate or goods which still belong to the corporation are the only fund of the creditor's payment; for it was upon the faith of the corporation, as such, and not on that of any of the private members, that the money was lent.

AN

AN

INSTITUTE

OF THE

LAW OF SCOTLAND.

ВО ОК II.

TITLE I.

Of the Division of Rights, and the several Ways by which a Right may be acquired.

A

FTER having explained the legal powers, offices, and duties, of persons, who are the first object of law, the method proposed, supr. B. 1. T. 2. § 1. naturally leads to the consideration of things, which are its second object, and to the setting forth their different kinds and legal properties. Things or subjects fall no otherwise under the consideration of law, than as persons may have right to them. All rights which affect any subject are called by the Romans jura in re; and by us, real rights; and the sovereign or primary real right is that of property; which is the right of using and disposing of a subject as our own, except in so far as we are restrained by law or paction. This right necessarily excludes every other person but the proprietor; for if another had a right to dispose of the subject, or so much as to use it, without his consent, it would not be his property, but common to him with that other. Property therefore implies a prohibition, that no person shall encroach upon the right of the proprietor; and consequently every encroachment, though it should not be guarded against by statute, founds the proprietor in an action of damages. But positive statute hath secured property against several encroachments that most frequently happen, by inflicting special penalties on the trespasser ; as in the acts for preserving planting and inclosures, in that which appoints winter-herding, 1686, C. 11, &c. If the proprietor has the power of disposing of his property, he must also have a power of charging or burdening it with inferior real rights in favour of others: He may, for instance, grant to his neighbour the right of a road through his lands, or he may impignorate them to his creditor in security of a debt. Though therefore it be a rule founded in common sense, that two different persons cannot have, each of them,

VOL. I.

3 I

Book II.

All rights of property are subject to some legal limitations.

them, the full property of the same thing at the same time, Duo non possunt esse domini ejusdem rei in solidum; yet it is most consistent with this rule, that the right of property may be in one person, while that of servitude, impignoration, or other inferior right in the subject, is vested in another. One and the same subject may also, without any inconsistency in the nature of things, belong to two or more different persons: And such right is called commonty, and sometimes common property.

2. The right of property is not weakened by the restraints which have been laid by law upon proprietors in the use of it: For the restraints of law are not designed to hurt property, but rather to secure and strengthen it, by inhibiting our licentiousness in the exercise of it. The law interposes so far for the public interest, that it suffers no person to use his property wantonly to his neighbour's prejudice; interest enim reipublicæ, ne quis re sua male utatur. But where the proprietor's act is of itself lawful, though it should be in its consequences detrimental to his neighbour, utitur jure suo; he is allowed to make use of what is his own, in the manner most beneficial to himself; and though his neighbour suffer damage, he has no redress unless the act of the other was in æmulationem '. Hence he may lawfully drain his swampy or marshy grounds, though the water thrown off from them by that improvement should happen to hurt the inferior tenement. But he must not make a greater collection of water than is necessary for that purpose; seeing such use would be merely in æmulationem vicini without any profit arising to himself. It is another legal limitation or restraint on property, That it must give way to the public necessity or utility. This universal right in the public over property is called by Grotius, dominium eminens; in virtue of which the supreme power may compel any proprietor to part with what is his own. If, for instance, the public police shall require, that a highway be carried through the property of a private person, the supreme power may oblige the owner to give up such part of his grounds as is necessary for that purpose. But in this case there must, first, be a necessity, or at least an evident utility, on the part of the public, to justify the exercise of that right; 2dly, The persons deprived of their property ought to have a full equivalent for quitting it.

3. The

Where a house is built close by a garden, or where new windows are struck out. so as to destroy the garden's privacy, it is not in æmulationem, (there being no servitude luminibus non officiendi,) though the proprietor raise a wall or screen for the purpose of preventing his garden from being overlooked; nor does it alter the case though che windows of the house should in this way be darkened; Glassford, 12th May 1808, Fac. Coll.; and Dunlop, 1st Dec. 1803, reported in a note to that case; DICT. v. PROPERTY, App. No. 7.

* A proprietor cannot employ his property, in any way which will render it a public or private nuisance; and it seems to be agreed, that whatever makes the enjoyment of life or property substantially uncomfortable, though it may not be actually noxious and unwholesome, will be considered a nuisance. The law on this subject is more rigorously applied in cases within burgh; Sel. Dec. Kinloch, 20th June 1756, DICT. p. 13163; Kames, Princ. of Equity, B. 1. p. 1. § 1.

It has been held, that a place for slaughtering cattle, in the immediate vicinity of houses within burgh, or in the suburbs, is a nuisance; Fol. Dict. Palmer, &c. May 1794, DICT. p. 13188, Kelt, &c. 8th July 1814, Fac. Coll.; Lauder, 16th June 1815, Ibid. So also as to buildings for the purpose of boiling whale blubber, though proposed to be erected at the end of a town; Dowie, &c. 11th Dec. 1813, Ibid. :-A work, within 200 or 300 yards of a populous village, and not far from the junction of certain public roads, for the preparation of blood, by boiling or roasting, as an ingredient in the manufacture of Prussian Blue; Jamieson, &c. 24th June 1800, Ibid.; DICT. v. PROPERTY, App. No. 4.:-A place, within 30 feet of the road-side, though in a country situation, for the dressing or manufacture of ox and buffalo hides into buff leather, and hanging the skins up to dry; unless there is a wall sufficiently high to shut them

out

3. The right of property is not lost by illegal restraints, more than by legal. Though a proprietor should be deprived of the ex

ercise

out from the view of the road; Scott, &c. 5th July 1810, Fac. Coll.:-An establishment for preparing tripe, on the ground floor of a tenement within burgh; Farquhar, &c. 19th Jan. 1813, Ibid.:-An iron manufactory within burgh; Thomson, 15th Dec. 1807, Ibid.; DICT. V. PUBLIC POLICE, App. NO. 5.:-A smith's forge, in the second story of a house, though vaulted; Kinloch, 20th June 1756, Sel. Decis. Fac. Coll. DICT. p. 13163; or in a thatched house, and in the neighbourhood of other thatched houses, within burgh, Vary, 2d July 1805, Fac. Coll. DICT. v. PUBLIC POLICE, App. NO. 4. -A fencing-master's school, in the upper floor of a house; Fleming, 24th Feb. 1750, Falc. DICT. p. 13159 :—A printing-office in a similar situation; Robertson, &c. 2d March 1802, Fac. Coll. DICT. v. PUBLIC POLICE, App. No. 3.

On the same principle, where a stream of water passes successively through different properties, the superior heritor, though he may take the natural use of it as it flows, cannot pollute it with filth, or otherwise adulterate it, so as to render it noxious and unwholesome in the rest of its course. Thus, a distiller cannot convey the refuse water of his distillery into a stream, if it be thereby rendered putrid and unfit for the use of man or beast. "The Lords were of opinion, that the primary use of water being to "drink, no proprietor was entitled to employ the water passing through his ground "in any purpose which could defeat that primary use to others who had before enjoy"ed it;" Fol. Dict. Miller, Nov. 1791, DICT. p. 12823; Russell, Nov. 1791, Ibid. The latter of these cases, indeed, was on appeal remitted for reconsideration; but the general principle of decision was not touched, the special object of the remit being " to in"vestigate, whether the water had been pure or contaminated prior to the erection "of the distillery." There seems, however, to be an important distinction in this respect between the larger public rivers and those small private streamlets, in which the above decisions were pronounced; Magistrates of Inverness, 20th Jan. 1804, Fac. Coll. DICT. p. 13191.

It is to be observed, that what might at first have been removeable as a nuisance, will no longer be so, if permitted to remain uncomplained of for a great length of time. Thus, in consequence of usage for more than half a century, the proprietors of lands, through which the foul burn (a stream arising from the common sewers of Edinburgh) passes, have been found entitled to stop its course, and to stagnate the accumulated filth in ponds upon their respective properties, for the purpose of collecting the deposited manure; Duncan, &c. 9th June 1809, Fac. Coll. A similar judgment was pronounced as to a long established nuisance in the river Ness; Magistrates of Inverness, 20th January 1804, supr. Where the nuisance has existed before the party complaining acquired his property, so that he came to it, and not it to him; or where the work or manufactory creating the nuisance has been constructed under his eye, the case becomes still more unfavourable, and a shorter period of acquiescence will be requisite to support it; Colville, 27th May 1817, Fac. Coll.; Duncan, 9th June 1809, supr. It is a nicer question, how far the previous existence of other nuisances in a particular situation will be held to sanction the intrusion of a new one; and perhaps it would be difficult altogether to reconcile the decisions on this head. In one case, it was observed, that "the previous existence of other and similar nuisances in the "vicinity does not warrant the introduction of new, or the material extension of old "nuisances;" and accordingly, though in a district of the burgh which had been " for "time immemorial occupied and frequented by tan-pits, glue works, soap manu"factories, curriers shades and skinneries, and the slaughter-house of the city," the defender was prohibited from making" an addition" even to his former glue work; Charity, 5th July 1808, Fac. Coll. DICT. v. PUBLIC POLICE, App. No. 6. A similar view appears to have been adopted in Thomson, 15th Dec. 1807; Dowie, &c. 11th Dec. 1813, both noticed supr. On the other hand, a lamp-black work, glue work, and catgut work combined, were found not to be a nuisance in the suburbs of a great town, where other works of a like description had previously been erected; Proprietors of Glasgow Water Works, 20th Dec. 1814, Fac. Coll. So also it was held, that roasting the black ashes of soap, in a place which had long been used as a soap manufactory, was no additional nuisance, so as to entitle the neighbours to complain; Balleny, &c. 3d Feb. 1813, Fac. Coll. The same consideration seems to have had some influence in Colville, 27th May 1817, supr. The truth is, that every question of nuisance depends so much on its own individual circumstances, and the slightest modification in the relative situation and condition of the properties, &c. has so material an effect on the result, that in no class of cases is it more necessary to observe the utmost caution in inferring from one, what will be decided in another. How very nice are the distinctions on which the Court must sometimes have proceeded, will be still farther illustrated by a comparison of Dewar, 20th Jan. 1767, Fac. Coll. Sel. Dec. DICT. p. 12803,-where a limekiln was found not removable as a nuisance, though situate within 324 feet of the neighbouring proprietor's mansion-house, which, in certain states of the wind, it rendered almost uninhabitable,-with Ralston, 29th July 1768, Fac. Coll. DICT. p. 12808, where another limekiln was adjudged a nuisance, it being so near the neighbouring garden, that the march hedge was dead, and the trees, bushes and grass for some way from the march had suffered from the heat.

TITLE II.

Property can

not be lost but

Book II.

by the voluntary act, delin

quency, or negligence of the proprietor.

Whether a right of property can be in pendenti.

Res communes and res publica are incapable of property.

ercise of what is his own, by violence, menaces, or other unjustifiable methods, he continues to have the right; in consequence of which he can sue all the detainers of the subject, for the recovery of his possession 3. The rule is general, that whatever is a person's property, cannot, so long as it exists, cease to be such, without either the voluntary act, or the delinquency, or the negligence of the proprietor. But the different methods, either of limiting or extinguishing property, will be fully explained hereafter*.

4. It was a rule, almost universally received by our lawyers till towards the beginning of this century, That dominium non potest esse in pendenti; "Property cannot float in an uncertainty," but must, at every period of time, be vested in some one person or another, St. B. 3. T. 5. §50, &c.; Mack. h. t. § 3. Lord Dirleton is the only writer of the last century who speaks doubtfully about it, v. Fiar, NO. 9, 10. But it appears to have no foundation, either in nature or in law. Many things are, ex sua natura, fit subjects of property, which nevertheless have no proprietor; those, for example, which the proprietor abandons with a design to be no longer owner of them, or waste lands of which no person hath as yet seized the possession. In like manner, where the fee or property of any subject is granted to children yet to be procreated, and the bare liferent to the father and mother, the property of that subject must of necessity be pendent till the existence of a child, Steu. Ans. v. Fiar. And as, by the Roman law, all estates in haereditate jacente of persons deceased were without proper owners; so, by ours, the fee is, upon the death of all fiars, in pendenti, till the next heir shall make up his titles. The necessity imposed by the law, upon an heir to enter, in order to establish the fee in his person, is a demonstration that he is not fiar till he be entered. Our judges, therefore, have by their later decisions paid but little regard to this rule, Kames, 51. 82. (Douglas, July 22. 1724, DICT. p. 1290, and Gibson, Feb. 4. 1726, Dicт. p. 11481.), &c. The decision, Home 1. (Frog's Creditors, DICT. p. 4262.), finding, that a grant to a person in liferent, and the heirs of his body yet to be born, in fee, constitutes the fee in the father, though it be urged by many as a judgment of the session, that the fee cannot be in pendenti, truly leaves that point undetermined. All that can be gathered from it is, that in the species facti there stated, it was presumed to be the granter's intention, that the father should be fiar; but that judgment cannot affect the case where the granter has, by the most express words, excluded the father from the fee, and restricted him to a bare liferent *.

These

5. Some things are by nature itself incapable of appropriation, so that they cannot be brought under the power of any one. got the name of res communes by the Roman law; and were defined, Things, the property of which belongs to no person, but the use to all. Thus, the light, the air, running water, &c. are so adapted to the common use of mankind, that no individual can acquire

a

See this subject fully discussed, Fac. Coll. July 9. 1794, Newlands, (DICT. page 4289.).

3 In this country, contrary to the established rules of the English Law, rei vindicatio lies for the recovery of stolen goods, even from a purchaser in open market; Stair, B. 2. t. 1. § 42. ;-Henderson, 17th June 1806, Fac. Coll. DICT. v. MOVEABLES, App. No. 1;-1. Bell, 219 ;-Brown's Law of Sale, p. 29, and 418.