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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Currie v. Campbell's Trustees [1888] ScotLR 26_170 (18 December 1888) URL: http://www.bailii.org/scot/cases/ScotCS/1888/26SLR0170.html Cite as: [1888] SLR 26_170, [1888] ScotLR 26_170 |
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Page: 170↓
[Sheriff of Argyll.
A feu-charter described the subject by boundaries. It also described it by measurements, and referred to a plan annexed. The measurements and plan agreed, but they were inconsistent with the boundaries specified. In a question as to the extent of the subject, held that the boundaries must prevail.
Lord Young dissented, on the ground that the intention of parties was that shown by the measurements and plan.
In 1881 Archibald Currie, shoemaker, Tarbert, Argyllshire, applied to the late George Colin Campbell Esq. of Stonefield, for a piece of ground in Tarbert upon which to erect a dwelling-house.
Ground was laid off by Mr Campbell's factor, and buildings erected upon it by Mr Currie. The ground allotted was subsequently enlarged on the south-east and a feu-contract entered into between the parties.
By feu-charter dated 3rd and 6th and recorded 17th February 1882 the whole subjects feued were described as follows:—“All and whole that area or piece of ground situated in the town or village of Tarbert aforesaid, bounded on the west by the public street called Kintyre Street, along which it extends 40 feet 9
inches or thereby; on the north partly by ground belonging to the said Colin George Campbell, and presently occupied by Finlay Smith and Duncan M'Arthur, along which it extends 41 feet 7 inches or thereby; on the east partly by the house also belonging to the said Colin George Campbell, and presently occupied by Donald Johnston, fisherman, along which it extends 14 feet 9 inches or thereby; and again on the north by the said house, along which it extends 20 feet or thereby; and again on the east, partly by Burnside Lane, along which it extends 26 feet 9 1 2 inches or thereby; and on the south by ground feued to Robert Lyon Dawson, along which it extends to Kintyre Street 62 feet or thereby, as the said area or piece of ground is shown on a plan or sketch thereof annexed and signed by the parties of even date with the said feu-contract as relative thereto, together with the houses and other buildings erected on the said area or piece of ground.” 1 2 The plan or sketch referred to had the figures mentioned in the feu-charter placed upon the appropriate lines, but it was not drawn to scale and was more of the value of an illustrative sketch than of a formal plan.
A difficulty subsequently arose as to the boundaries of the feu on the north-east. “The house, … occupied by Donald Johnston, fisherman,” when the feu-charterwas signed, was taken down in 1883, and the site was disponed by the superior to another person. In 1886 Currie began to build a wall upon a part of the site as being within his feu. Mr Campbell obtained an interim interdict against this proceeding, and Currie thereupon brought an action of declarator against Mr Campbell in the Sheriff Court at Campbelltown, to have it declared that his feu was bounded “again on the north by a stone wall erected by the pursuer on the site of said house (Donald Johnston's house) along which it extends 20 feet or thereby.”
After protracted proceedings before both the Sheriff-Substitute ( Russel Bell) and the Sheriff ( Forbes Irvine), in the course of which Mr Campbell died and his trustees were sisted as parties to the action, the pursuer brought the case by appeal before the Second Division of the Court of Session. It appeared that it was impossible to reconcile the boundaries given in the feu-charter with the measurements therein given and with the plan thereto attached; and it was
Argued for the appellant—The plan and the measurements, which agreed with one another, and supported his contention as to the limits of his feu, must prevail over the boundaries given in the feu-charter, or rather that the plan agreeing with the measurements must prevail over the description by boundaries, which did not so agree. The portion of ground claimed belonged to the respondents, and therefore this was not an error which could not be rectified. Moreover, the respondents' agent had prepared the feu-contract and the plan, and their factor had marked off the ground. They were therefore responsible for any mistake that had been committed, and were not entitled to take advantage of their agent's actings to the detriment of the appellant— North British Railway Company v. Magistrates of Hawick, December 19, 1862, 1 Macph. 200; North British Railway Company v. Moon's Trustees, February 8, 1879, 6 R. 640. The removal of Johnston's house was in contemplation at the time of the feu-contract.
Argued for the respondents—Although the question at issue was of small money value, they were brought to contest it in the interests of the person to whom the ground built upon by the appellant had been feued. This declarator was the only way of getting the interdict question settled. The boundaries were perfectly distinct, and could not be altered by a rough sketch not drawn to scale, and only intended to illustrate the feu-charter. Their case was the same as if there had been no plan, but if looked at at all it was in their favour, for it showed Johnston's house to be outside of the feu altogether. The measurements were demonstrative not taxative. The appellant would not have had a stateable case but for the fact that the ground in dispute belonged to them, and really that made no difference upon the law on the subject. What bounded a feu could not form part of the feu. Besides, in 1882 Donald Johnston's house was standing, and the appellant's boundary could not go through a house which bounded his feu— Reid v. M'Coll, October 27, 1879, 7 R. 84.
Page: 171↓
At advising—
I have given the matter my best consideration—it is a difficult question as it stands, and would have been a still more difficult one if the plan had been carefully drawn to scale—and the opinion I have come to is that the boundaries as given in the description in the feu-contract must prevail over the sketch, which is to be taken as illustrative only.
The feu at the place in dispute is said to be bounded on the north by Donald Johnston's house. Therefore the line at that place cannot be drawn anywhere within the house occupied by Johnston. Taking all the facts together, I should have been astonished if this case had been brought about this piece of ground if no intervening difficulty had occurred since it was feued off, but it appears that the 60 square feet in question has since been feued to someone else. I think, however, that if there had been anyone in Tarbert to bring these people together this action need never have been here.
Now, there is a maxim of our law which says, verba cartarum fortius accipiuntur contra preferentem, which has been interpreted as meaning that deeds are to be construed most strongly against the granters. Here the proprietor's man of business is responsible for the deed, and his factor on the spot for the sketch, and whether the boundaries or the measurements are to give way, I should give it against the superior's agent and factor rather than against the feuar, who is entirely innocent of the matter.
It is said it is dreadful to disregard the boundary of Johnston's house, but we were told that it was a mere hovel of no more permanence than a haystack. I am not going to sacrifice the measurements to subjects “presently occupied by Donald Johnston,” especially in the case of a mere hovel which has since been taken down. Acting, then, upon general rules of law, and giving due weight to the maxim I have quoted, I am not for disregarding all the measurements, but rather for disregarding this boundary of Johnston's house. I am therefore for giving the pursuer the decree he asks.
In so far as the pursuer has built on the ground his title cannot be disputed. It appears, however, that a house which belonged to Mr Campbell, and which at the date of the feu-disposition was occupied by Donald Johnston, was pulled down. The pursuer claims a part of the site of this house as being conveyed to him by his feu-disposition. The only question in the case is whether this claim is well founded.
In order to have his right disclosed the pursuer has raised this action. He asks the Court to declare that he has the sole and exclusive right to the area of ground described in the petition. The boundaries therein given are the same as those contained in the feu-disposition with one exception. In the disposition the boundary
Page: 172↓
The portion of the south gable of Johnston's house is known and admitted. It is further conceded by the pursuer that his claim in this action involves a claim to a portion of the site of these houses. But he says that his feu was given out according to a plan appended to the disposition, and that the area thereon on the plan, and defined by the measurements contained in the disposition itself, comprehends the ground which he claims in this case.
The defenders, on the other hand, maintain that Johnston's house is the northern boundary of the pursuer's feu, and that no part of that house is comprehended within it.
I take it to be settled law that what is described as the boundary of a feu in the feu-disposition which creates it is by that very fact excluded from the feu. There may be exceptions where the boundary is a river or a road. But with such exceptions we have here nothing to do. The northern boundary of the pursuer's feu is Johnston's house. Hence I think it clear that according to the disposition no part of that house or of its site was included within the pursuer's feu.
Nor is the plan inconsistent with the disposition. It shows, and I think that it was designed to show, that Johnston's house was wholly excluded from the feu given out to the pursuer.
The pursuer relies on the measurements contained in the disposition and also transferred to the plan. And there is no question that according to the view which I take of the case certain of these measurements are wrong. Johnston's house is the boundary partly on the east and partly on the north, cutting out a corner from what would otherwise be a quadrilateral figure. Measuring along Johnston's house on the east, the true length of the east boundary at that part should be 17 feet 9 inches or thereby, instead of 14 feet 9 as given in the disposition, and of course there is a corresponding error in the other portion of the eastern boundary. I cannot, however, adopt these measurements to the effect of giving to the pursuer ground which I think was plainly excluded from his feu. The boundaries given in the feu-disposition must in my opinion prevail. To my mind it is plain, both from the disposition and the plan, that Johnston's house was wholly excluded from the feu, and as the measurements would include a part of it, I must hold that this was wrong. An error of that kind may easily be made. I cannot hold that the measurements are right to the effect of assigning to the pursuer a piece of ground which the disposition expressly declares to be excluded from it.
For these reasons I think that we cannot give declarator in terms of the prayer of the petition, and therefore that the defenders are entitled to absolvitor. In pronouncing this decree we decide the only question which has been raised, and even if it were desirable to pronounce any other form of decree we have not the means of doing so, inasmuch as the parties when they were before us renounced all further probation.
I therefore think that on the only point in controversy the defenders are entitled to prevail.
The Court pronounced the following interlocutor:—
“Recal the interlocutor of the Sheriff-Substitute of 8th May 1888, and the interlocutor of the Sheriff on 23rd July following: Find that no part of Donald Johnston's house is included in the feu given off by the late Colin George Campbell, author of the defenders, to the pursuer: Therefore assoilzie the defenders from the conclusions of the petition: Find them entitled to expenses in the Inferior Court and in this Court,” &c.
Counsel for the Appellant— Balfour, Q.C.— Crole. Agents— R. R. Simpson & Lawson, W.S.
Counsel for the Respondents— Gloag.— Gillespie. Agents— Tawse & Bonar, W.S.