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Robert Maccallan v The Magistrates of Ayr. [1693] 4 Brn 84 (24 February 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Brn040084-0198.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Maccallan v. The Magistrates of Ayr
Date: 24 February 1693
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The Lords adhered to their former interlocutor; and found, That his infeftment, though it was in the nolt-fauld, yet not bearing to be in the market-place, it did not hinder the town of Ayr to alter their market-place: albeit he had immemorial possession, and that the whole cattle came there, and paid custom; which was only actus merœ facultatis, and arbitrary to the town to continue it in that place, or transport it elsewhere at their pleasure; even as it is with the markets of Edinburgh, where the neighbouring heritors of the flesh-market, and others, get their houses much higher and better set; this would not hinder the altering and taking them to another place, though the adjacent tenements would suffer prejudice thereby. And, on the other hand, it was urged, That a dubious and a general charter, bearing the nolt-fauld, with all its pertinents, might be explained and enlarged by a long custom and possession, and might introduce such a servitude; especially seeing he bought the ground at a dearer rate upon that account.
