Edinburgh Magistrates v. Trustees of Church of St John The Evangelist

The Lord Provost, Magistrates, and Council of the City of Edinburgh, first parties , and the trustees in whom the site and fabric of the Church of St John the Evangelist (formerly known as St John's Chapel), Edinburgh, was at the time vested, second parties , presented a Special Case for the opinion and judgment of the Court.

The feu-charter dated 29th April 1818 proceeded on the narrative of the first charter, and on the further narrative that “certain of the proprietors of the said chapel afterwards having applied to our predecessors in office for an additional piece of ground … for the purpose of constructing a dormitory.”

The feu-charter dated 2nd and 16th September 1834 proceeded on a narrative that an offer had been made for the ground on behalf of the trustees of St John's Chapel, and it might be gathered that the ground was to be used as a burial ground, but this was not stated.

The following questions of law were submitted—1. Is the erection of the proposed building a contravention of (a) the Act of 1816, or ( b ) of any of the charters of the ground now belonging to the second parties? 2. Should the preceding question be answered in the affirmative, are the first parties by their acquiescence in the actings of the second parties or by their own actions barred from now founding on the provisions of the Act of 1816 or of the said charters?”

Lord Dundas —[ After the narrative above quoted ]—The case has been brought in order to ascertain whether or not the erection of the building would be a contravention of the feu-charters, or any of them, or otherwise contrary to law. My opinion upon that question is in the negative.