The Governors of George Heriot’s Hospital, pursuers, granted defender John Cleland a five-acre feu in the barony of Broughton, which later became part of Edinburgh. The charter contained a stipulation that without the Governors’ consent, Cleland would not use his land for certain extractive purposes, such as digging for coal, or “in any other way than by the ordinary labour of plow and spade.” Defender Walter Ferguson purchased part of Cleland’s feu and sought to erect buildings on it. The Governors raised an action against Cleland and Ferguson, claiming that the charter’s stipulation prohibited all uses other than husbandry and gardening. The defenders argued that because superiors’ rights had been steadily eroding, the court should be skeptical of restraints on property. According to the defenders, the clause was best read to prohibit destructive uses of the land but not to place any limitations on surface uses.
William Morison, The Decisions of the Court of Session (1811), pg. 12817