Scottish Court of Session Decisions

Lord Neaves—I have no doubt as to the principle on which this case ought to be decided. A sale was effected between the parties of a certain subject called Rosehall. By that sale the appellants acquired right to every subject falling under that name, but to nothing else. The bargain having been completed, it appears that the parties were not at one as to the precise subjects embraced by the name. Such differences often occur, and in order to settle them investigation is necessary. The seller means to dispone portions A, B, and C of his estate, while the buyer imagines that his disposition also includes the portions D, E, and F. How is the question to be settled? Is the buyer to take possession of the portions D, E, and F in spite of the protest of the seller? Is the latter to be coerced in the matter by the ipse dixit of the buyer? Surely not. I think that the rule melior est conditio possidentis holds in such a case. The matter must be cleared up by a declarator, and I cannot think that, pending such a proceeding, the buyer is to be permitted, at his own hand, to take possession of what he claims. The seller, who was originally in possession, is the party to be preferred, and he is not thus to be ousted. There has been an ingenious attempt to show that this is not an ordinary question of marches, but of some special right to the subjects in dispute; that, whatever may have been the agricultural possessions of these subjects, the appellants had possessed them for sporting purposes, and entertained for them a sort of pretium affectionis. But there is no ground for any such distinction, and the matter is purely a question of the adjustment of marches, involving an investigation as to the right of property, to determine which a regular action is necessary.

I do not regard this as a possessory question at all. The same proprietor possessed the two adjacent estates for a much longer period than seven years, and it matters little what he possessed under the name of Gruids, and what under the name of Rosehall. The evidence led by the appellants is totally insufficient to support their case; and even were it otherwise, the question is not one that can be competently decided in proceedings of the present nature. It was, therefore, clearly competent to Sir James Matheson to say, “I have a title to these subjects, and I protest against and interdict you from taking possession of them until you have proved your title by a formal declarator.”

Lord Benholme—While I arrive at the same result in favour of the respondent in this case, I entirely differ from the ground on which Lord Neaves has rested his judgment. I consider that ground too narrow, and I concur with the Sheriff in the view of the case which he has taken. I regard this strictly as a possessory question. There is no doubt as to the fact, that the Rosehall shooting-tenants exercised the privilege of fishing in the loch in dispute, but we have no evidence as to their title to do so. Had their title been established, I should have arrived at a different result. On the other hand, it has been satisfactorily proved that an agricultural tenant of Sir James possessed the subjects in dispute as pertinents of the estate of Gruids. Sir James has, therefore, established a possessory right to the subjects as portions of his estate of Gruids, and on that ground he is entitled to his interdict.

The Lord Justice-Clerk and Lord Cowan concurred with Lord Neaves.

The Court pronounced the following interlocutor:—

“ Edinburgh, 17 th May 1872.—The Lords having heard counsel on the appeal: Find, in point of fact, that prior to the sale of the estate of Rosehall to the appellants the respondent was, and had been since 1844, in possession of the subjects in dispute: Find that in the year 1870 the appellant purchased

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