Scottish Court of Session Decisions

This was a question which related to the property of a piece of ground lying between the pursuer's feu and ground held by the defenders under a ninety-nine years’ lease. The pursuer Robert M'Cowan purchased in 1864 a cottage and piece of ground situated in the Holm of Cumnock. In the disposition the subjects are described as “All and whole that garden or piece of ground at the back of the Holm of Cumuock, sometime possessed by the deceased James Kirkland, and which he conveyed to David Kirkland by disposition and deed of settlement dated the 18th day of February 1824, and recorded in the Books of Council and Session the 4th day of January 1827, the same being described in the prior writs thereof as ‘all and haill these two roods and twelve falls of ground or thereby, being the fourth and fifth lots of the holm called the Bridgend Holm of Sharkstone, as the same were pitted off separately, as mentioned in a feu disposition of the same granted by the Right Honourable William Earl of Dumfries to James Johnstone, dated 19th day of December 1767, and are now bounded by the lot of ground feued to James Perry on the east, by a ditch dyke and the high road upon the south and west, and by the water of Glaisnock on the north parts.’” The defender, David Shields, is a tenant, under the Marquis of Bute, of a piece of ground adjoining on the rest. In the assignation and translation in favour of his author, the subjects to which he has right are described as “All and haill that piece of ground at the east end of the street called Bridgend, consisting of 23 falls 2 ells or thereby, bounded on the south by the highway, on the west by ground now belonging to Andrew Gemmel, writer, Glasgow, on the north by the water of Glaisnock, and on the east by the feu sometime of James Johnstone.” James Johnstone was a predecessor of the pursuer. It is maintained by the pursuer that the defender, who has acquired additional ground by building a wall opposite his own ground, has taken possession of part of the property of the pursuer, extending to four falls anti eleven ells or thereby, and on part of it has erected a washing-house, the chimneys of which are only a few feet distant from the windows of the pursuer's house.

The pursuer has brought this action of declarator, removal, and damages, and pleads (1) That by virtue of his titles, being owner of the ground of which the defender has illegally taken possession, a decree declaratory of the pursuer's right, and decerning the defender to remove, should be pronounced. (2) The said ground of which the defender has taken possession being within the boundaries of the pursuer's feu, as these are set forth in the titles of the property; and separatim, having for forty years prior to the usurpation complained of been possessed as part and pertinent thereof, he is entitled to decree of decree of declaration and of removing. (3) The usurpation complained of being inconsistent with the defender's titles, his defences are unfounded, and decree as complained for should de plano be pronounced. (4) Separatim, that the pursuer is entitled to decree of removal. And (5) That the pursuer is entitled to damages.

The defender pleads—(1) That by virtue of his tack having right to the ground, and to erect buildings thereon, he is entitled to absolvitor. (2) The pursuer's title being a bounding title, and exclusive of the ground in question, the defender ought to be assoilzied. (3) The pursuer not being owner of the ground in question, the defender is entitled to absolvitor. (4) The pursuer is not entitled to support the conclusions of his action by averments of prescriptive possession, no such ground of action having been set forth in his original summons. (5) The pursuer's author having acquiesced in the operations complained of, the defender is entitled to be assoilzied. (6) The pursuer having suffered no damage, the defender is entitled to be assoilzied.

The Lord Ordinary allowed both parties, before answer, a proof of their respective averments on record

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and a conjunct probation; and after the proof had been led, found that, in point of fact, the pursuer had failed to prove that the piece of ground referred to in the summons was included within the boundaries contained in the title set forth by him in said conclusions and in the condescendence for him, or that the same had been possessed by him for forty years; and therefore found and declared, in terms of the first conclusion of the summons only, and assoilzied the defender from the remaining conclusions. The Lord Ordinary, in a note to his interlocutor, explains, that after a careful examination of plans which were referred to, and with the aid of the parole evidence, he has come to the conclusion that the piece of ground in dispute is not embraced within the boundaries of the pursuer's title. He is quite satisfied that the boundary of his property did not extend in a direct line to the Glaisnock beyond the beech tree, which was situated at the extremity of the fence forming the western boundary of the feu, but that the boundary there followed the line of the hedge running eastward, or north-eastward, and which separated the garden ground of the pursuer from the angular piece of ground coloured red on the plan. The possession had by the defender, and those through whom he derives right, goes strongly to support the view which the Lord Ordinary here takes, and is indeed, looking to the character and peculiar position of subject in dispute, incapable of any other explanation.

The pursuer reclaimed.

Solicitor-General and Crichton for him.

Watson and Montgomery for the respondents.