This is not a question of putting an existing building to some new and different use to that to which it was originally put when a feu was first given off and a building erected. It is a proposal to remove altogether what was erected in fulfilment of the obligation to build a house approved of by the superiors and to occupy with buildings ground on which it was not permissible to put the building stipulated for. Even if it were necessary for the superior to show an interest to insist on observance of the obligation (which I do not hold that it was), prima facie the superior's interest cannot be doubted. The stipulation itself implies interest, and I am quite unable to see how that interest has been taken away. It certainly is not taken away by anything that has been done upon the south side of the feu, and as regards what has been done at the eastern corner, consent was obtained for a consideration. But such a consent can never be founded on to extinguish rights in regard to another part of the feu where no consent has been given, and where the superiors have all along insisted on the express stipulation in the title being carried out.
This case in no way resembles the numerous cases in which rights of a body of feuars inter se have suffered extinction by things being permitted to be done which subverted the original conditions and rendered them incapable of enforcement in their entirety. It is a question solely between one superior and one vassal, and I have no hesitation in holding that the Lord Ordinary has rightly decided that the pursuer's contentions are untenable and that the defenders are entitled to absolvitor.
Lord Kyllachy —I concur, and have nothing to add. I am quite satisfied with the Lord Ordinary's judgment.
Lord Stormonth darling and Lord Low concurred.
The Court adhered.
Counsel for the Pursuers (Reclaimers)— Ure, K.C.—M'Lennan, K.C.—Sandeman. Agents— Martin & M'Glashan, S.S.C.
Counsel for the Defenders (Respondents) Shaw, K.C.—W. J. Robertson. Agent— Alex. Heron, S.S.C.