Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROPERTY.
Subject_3 A proprietor may build a Drawkiln for burning lime on any part of his property, although thereby a conterminous heritor's property should be hurt.

James Dewar of Vogrie,
v.
Mr William Frazer, Writer to the Signet

Date: 20 January 1767

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[Faculty Collection, IV. p. 88; Kaimes's Select Decisions, p. 323; Dict. 12,803.]

Coalston. A proprietor may use his property as he pleases, unless it be in æmulationem vicini: this work is not in æmulationem vicini. The power of removing nuisances ought to be tenderly used. If a house is built just close to another, this may be a great nuisance, but there is no remedy.

Kaimes. In exercising your own property, you must not destroy your neighbour's, immittendo in alienum, though you may debar him from benefit: the first is the case here: I would desire to know, whether any other place might not serve for a drawkiln.

President. Any thing that is a nuisance, cannot be erected to the hurt of a neighbour, if the nuisance is such in its own nature, or occasioned by what is not a proper use of the subject.

Mr Frazer ought to have considered this inconveniency before he purchased the house. Lord Abercorn's fire-engine is not a nuisance, lying off the road.

Pitfour. It is improper to exert an arbitrary power in limiting the use of property. The nature of property is such, that it may be used in any manner for a man's advantage, if not in æmulationem. But there is an exception founded in the nature of property; as I cannot encroach upon you, so cannot you upon me, by sending noxious messengers. Can it be said that I do not meddle with my neighbour's property, when I send in a smoke and vapour upon him? The case in the Roman law of taberna casearia is very similar.

Hailes. This is a public nuisance,—a limekiln situated just upon the highway: every man that travels that road may be affected by it: it is not only poison, but dangerous, as nothing is apter than smoke to terrify horses; every man, therefore, who is concerned in the road, seems to have a right to sue for removing the nuisance. The case of the brick-kilns near the Queen's Palace is not to the purpose; for it is probable that those kilns are more ancient than the Palace, so that the error was in building the Palace too near them. Lord Mansfield's judgment upon nuisances seems equitable, and to the point.

Justice-Clerk. By diverting water into another man's ground, I use his property: It is carrying the analogy very far, when we apply it to the immission of smoke;—every manufactory would send out smoke in a certain degree. It is owing to the common course of nature, that smoke goes over the neighbouring ground.

Barjarg. No man is to be restrained from the use of his property, unless he exercises it in æmulationem.This æmulatio appears when the thing may be done equally well in a place where the neighbour would receive no hurt.

Auchinleck. If the principle non licet immittere in alienum is to relate to air, which is common to every body, there can be no drawkiln in Scotland, and every sort of work occasioning smoke may be stopt.

The Lords allowed the work to proceed, and adhered to Lord Auchinleck's interlocutor.

Act. G. Wallace. Alt. D. Dalrymple.

Diss. Kaimes, Pitfour, Kennet, Hailes.