Scottish Court of Session Decisions

Subject_1 PUBLIC POLICE.

James Buchanan, Dean of Guild of Glasgow,
v.
Patrick Bell

Date: 15 November 1774
Case No. No 19.

Whether the dean of guild has power to make general regulations for removing what, though not strictly a nuisance, may be deemed a deformity, and prove discoramodious to the inhabitants and the public in general?

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Many of the inhabitants of Glasgow had a practice of fixing large shades, or water-barges, on the fronts of their houses, in order to convey the water from them. It was represented to the Dean of Guild, That these water-barges were exceedingly prejudicial; that not only they were ugly to the eye, and hurt the regularity and beauty of the streets, but, by projecting considerably beyond the houses, they encroached upon the street, and rendered it in some places very narrow; that, besides, they collected the water which fell upon the tops of the houses, and threw it out upon the streets, by which means the streets were often covered with water, and the rain, so collected in these water-barges, was poured upon the inhabitants, as they passed along the streets.

This matter being enquired into by the Dean of Guild Court, in April 1773, the Court ordered these water-barges to be taken down against the 1st of May; and this order, being published in the Glasgow newspapers, was generally complied with.

Patrick Bell, however, proprietor of a house in the Gallowgate of Glasgow, proving refractory, he was called before the court to answer for his contempt of said order; and he having appeared, and his tenement being visited and inspected by the Dean of Guild and his brethren, they ordained Bell, betwixt and a certain day, to remove and take down his water-barge. But, instead of complying with this order, he brought the matter before this Court by a suspension.

Pleaded for the charger; In the present case, the order of the Dean of Guild, Court was indisputably competent; for that, by law, the care of the police within burgh, the regulation of public buildings, and of every thing which can incommode, obstruct, or encroach upon the public streets, properly belongs to this Magistrate; and as the usage of those barges was attended with no real utility, but was exceedingly hurtful to the police of the burgh, and was a real nuisance, and as such universally complained of, it was the duty of the Dean, of Guild to put an end to it, and enforce their own authority, when brought in question by an individual merely from humour.

In point of fact, the suspender set forth, That, having lately caused the dimensions of his barge to be measured by two tradesmen of character, from whose report it appears, that the breadth or projection thereof, from the side-wall of the tenement, is only two feet nine inches; that, besides, the stair of the tenement projects farther out towards the street than the barge, and receives the rain-water which falls from it, so that it is clear the inconvenience Which inhabitants and passengers are said to suffer, are imaginary, and only as, sumed In order to afford some excuse for the proceedings of the Dean of Guild: And, argued,

The Dean of Guild is no doubt empowered by law to take: cognizance in questions relating to the police of the burgh; but, in doing so, he is bound, like all other judges, to decide according to the rules of law, and not to be led away by his own private ideas of utility or expediency. Both the house and barge in question were erected in the year 1734; and, since that time, the barge has subsisted in its present form till the month of April 1773; and, among the inhabitants of Glasgow, the practice of having such barges has been general and immemorial. But, supposing the water-barge in question to be of ever so late an erection, how does it appear that the same is a public nuisance which the Dean of Guild was entitled to take down? That it was no such nuisance is extremely clear, Unless it shall be held a nuisance, or trespass against the public police, for a person to attempt protecting his shop from the rain-water, without doing the least hurt or injury to the public.

The Court were of opinion, 1mo, That this was a case in which there were no terminis habiles for a plea of prescription, supposing the water-barge had, by toleration or the negligence of the Magistrate, stood even for 40 years, which was not the Fact; 2do, That although the Dean of Guild can make no arbitrary regulations, tending to deprive a person of his property, yet he has certainly discretionary powers in the matter of police, and particularly ne opere manufacto aut aliquo immisso urbs deformetur; and the regulation in question fell within those powers, in the exercise of which that useful Magistrate ought to be supported; and, 3tio, That, even from the suspender's own account of the matter, it was humoursome in him striving to keep up what in reality is of no benefit to him; which was also confirmed by one of the Judges, who had, when on the circuit, inspected the subject along with his colleague.

The Court “found the letters orderly proceeded.”

Act. W. Craig. Alt. Blair. Clerk, Campbell. Fol. Dic. v. 4. p. 260. Fac. Col. No 136. p. 160.