Primary tabs
Transcription
[Page 6]
as Trustees, have, as it is necessary they should have, the intire and exclusive authority and discretion to take down & rebuild to alter or vary any parts of it when it is necessary & proper. This power is incident to & inseparable from their Trust Title, & it is obvious that the interference of a Court of Equity with the exercise of this power, unless in a plain & clear case of waste would be both unjustifiable & inconvenient. For if the discretion of a Chapter of on these subjects were over ruled otherwise than in an evident case of abuse, their regular & lawful power would in effect be taken from them and assumed by a Court of Equity. The Question then is whether the taking down of these Spires was an act of clear waste: from the circumstances stated above I understand it to have been so because it does not appear to have been necessary or proper from decay, or any other cause, to take them down, & if no cause either of necessity or propriety can be made out, the removal of them was waste; for according to the common Rule of Courts of Equity the defacing or demolishing the ornamental parts of Buildings is waste. But if on the other hand a point of fair & real doubt can be made out by the Chapter as to the propriety of the removal of the Spires, so that some Architects or persons of competent judgement should say that it was not improper, then I think (although the weight of contrary opinions might preponderate) & though it might be made apparent that their discretion was erroneously exercised still that it would be difficult to bring the transaction within could not I think fall under the legal character of waste.
This question of fact deserves a Statement rather more full & minute than is laid before me.