Scottish Court of Session Decisions

The respondent and appellant in this appeal were tenants under long leases of 999 years, flowing from the same author, of two pieces of ground which joined each other. Upon these plots of ground two houses had been built, some distance from the turnpike road, and the only access to the house of the respondent was by a path which passed in front of the house of the appellant. The action originated in a petition to the Sheriff of Lanark to have the appellant ordained to take down and remove a barricade which had been erected by him across this road. The Sheriff-Substitute ( Dycb) found that the respondent had possessed the subjects in question with access thereto by means of the path for more than seven years, and consequently that she was entitled to a possessory judgment of the nature craved.

He remarked in his Note:—“The respondent's contention is, that the petitioner is not entitled to a possessory judgment, in respect that her title is a bounding one, and that as the present action involves a question of heritable right, it is incompetent, and should be dismissed; and in support of his pleas he refers to the case of Cruikshank v. Irving, Dec. 23, 1854, 27 Jurist, 119, in which, however, it was held that possession could not be proved, because the title was so obscure as to require a declarator.

“He, moreover, relies upon the case of Saunders (Mill's Trs.) v. Reid, Feb. 26, 1830, 8 Sh. 605; and that of York v. Ewing, Dec. 19, 1857, 30 Jurist, 190.

It is, however, scarcely necessary to remark, that although in the former case the action was dismissed in respect of the bounding nature of the charter, yet in the more recent and well-known case of Liston v. Galloway, Dec. 3, 1835, 14 Sh. 97, Lord President Hope especially refers to that of Saunders as requiring reconsideration, while, in the latter case, the action, which was not a possessory one, was dismissed, in respect that the summons was based upon a right of property in the subject claimed, although the title produced was strictly a bounding title. The petitioner, on the other hand, pleads that having by herself and her predecessors been in the possession of the subjects libelled, with the access thereto by the entrance in question, for more than seven years, she is entitled to be maintained in that possession until legally dispossessed, and refers to the fore-mentioned case of Liston v. Galloway, as well as to Richmond v. Inglis, Feb, 23, 1842, 4 B. M. D. 769, and Wilson v. Henderson, Feb. 28, 1855, 27 Jurist, 228.”

On appeal the Sheriff confirmed this interlocutor, observing in his Note:—“It was authoritatively settled by the case of Liston, Dec. 3, 1835, that a party may be entitled to the benefit of a possessory judgment regarding a right of ish and entry to a plot of ground, though he held such ground under a bounding charter, making no reference to such right, and containing no clause of parts and pertinents. In his note the Lord Ordinary remarked ‘that a bounding charter, though it may be conclusive against a claim of property beyond its limits, is not necessarily exclusive of any of the known rights of servitude over adjacent properties, such as that of ish and entry, and therefore does, if supported by the requisite proof of possession, afford sufficient title for a possessory judgment.’ Lord Balgray, who, with the other Judges, approved of the view taken by the Lord Ordinary, said—‘ There is no rule of our law more salutary in itself, or better established, than that which declares that a party who has enjoyed peaceable possession of a right for seven years is entitled to be protected in it against summary inversion of the state of possession.’ This decision overruled and set aside what had been held in the earlier case of Saunders, Feb. 26, 1830. In the recent case of Calder, March 2, 1870, 42 Jurist, p. 319, which was the converse of the present, the Lord Justice-Clerk said—‘ When a party attempts to obtain possession by a summary process, it is a sufficient answer to him that the respondent has possessed the subject for seven years.’ No doubt, as Lord Benholme remarked in the same case, ‘it is true that seven years' possession will not always give a possessory title, for the possession may have been precarious or violent, or there may have been some other vice in it.’ But here no such element occurs. The defender's statement, that the pursuer's late husband paid 5s. per annum for the privilege of passage, is not corroborated, and the proof instructs a free use of the road for more than seven years before any interruption was attempted, so that the subsequent interruptions, which were not acquiesced in, were unavailing. See Harvie, July 10, 1827. The defender's proper remedy, if he chooses to insist in it, is by declarator, but he cannot, at his own hand, take away from the pursuer, via facli, the right of ish and entry which she has exercised for the above period, the more especially as it seems to be the only available access to her property.”

Page: 84↓

Dempster appealed.

Guthrie Smith and M'Kechnie, for him, argued—(1) The case is put on record as high as that of a servitude right, which can now be determined in the Sheriff-court. (2) There can be no servitude claimed here, because both parties are lease-hold proprietors. Each is therefore acquiring, not for himself, but for the granter; but the granter of both leases is the same, and so is acquiring in derogation of a grant which he is bound to respect. (3) There can be no doubt that a bounding charter is a good title to acquire a servitude which is a jus in re alieno—but here the case is different—and what is sought by the petition is that the proprietor should re-acquire by prescription what he had given away by grant. If there be no servitude there is no possessory right, since a title that precludes the idea of the former cannot be a ground for the latter. (5) But, on the merits, the possession had been with the appellant, who had in point of fact possessed nec vi clam aut precario for the last seven years.

Millar, Q.C., and Moncreiff in answer.

At advising—