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DECIDED IN

THE HOUSE OF LORDS,

ON APPEAL

FROM THE COURTS OF SCOTLAND,

1830.

REPORTED BY

JAMES WILSON AND PATRICK SHAW, ESQUIRES,

ADVOCATES.

VOLUME IV.

WILLIAM BLACKWOOD, EDINBURGH;

T. CADELL, AND M. STEVENS & SONS, BELL YARD,

LINCOLN'S INN, LONDON.

MDCCCXXXII.

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THE LORD CHANCELLORS LYNDHURST AND BROUGHAM, EARL ELDON AND LORD WYNFORD, HAVE DONE THE REPORTERS

THE HONOUR TO REVISE THEIR SPEECHES IN THIS VOLUME.

EDINBURGH:

PRINTED BY BALLANTYNE AND COMPANY,

PAUL'S WORK, CANONGATE.

CASES

DECIDED IN THE HOUSE OF LORDS,

ON APPEAL FROM THE

COURTS OF SCOTLAND,

1830.

The MAGISTRATES of EDINBURGH, and the GOVERNORS of
HERIOT'S HOSPITAL, Appellants.-Campbell-Simpson.

DICKSONS BROTHERS, Respondents.-Spankie-MacDougald.

Reparation-Superior and Vassal.-Held, (affirming the judgment of the Court of Session), That superiors who had feued out ground for building to a considerable extent in streets, and constructed a common sewer or drain for the use of the streets, and, long subsequent to the conveyance of the feus, acknowledged dominion over the drain, by stipulating with a third party to keep it in repair, were liable for damage occasioned by the disrepair of the drain.

No. 1.

2D DIVISION.

DICKSONS BROTHERS, nurserymen, had for many years been Feb. 17. 1830. the tenants of a piece of nursery ground belonging to Heriot's Hospital, situated on the east side of the Broughton Road, near Lord Mackenzie. Edinburgh, but on a lower level than that road. The main drain or common sewer from York Place, Albany Street, Forth Street, Broughton Place, and other streets in that quarter of Edinburgh, had, since the year 1797, when York Place was built, run down under a flag-stone cover towards the north, by the side of the Broughton Road, till it emptied itself into a grating at the corner of the nursery ground; after which, it continued its course to the eastward in an open ditch. Some years before 1822, the water in the drain displaced the flag-stone cover, about a hundred yards higher up the Broughton Road than the nursery; and although the ordinary run of the sewage still kept its course in the drain, there was always, on occasion of sudden and violent rains, an overflow at this rupture.

A

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