Scottish Court of Session Decisions

These were two actions relating to the same subject-matter. The first was an action of declarator at the instance of Dr Begg and others, trustees in behoof of the Deacon's Courts of the congregation of Newington Free Church, against Andrew Jack, a builder in West Newington Place. The pursuers were possessed of a property which was separated upon the north from a property belonging to the defender by a wall which the pursuers averred was described in their titles as a party or mutual wall, and had been considered as such by the proprietors on both sides for more than forty years. They denied that it was a gable wall, or that it had ever been used as such by them. They averred that the defender, who in 1872 had acquired a right to the adjoining property, applied to them for permission to build the south gable of a house which he was about to erect on the said property, as a mutual gable on the site of a portion of this old wall, and that the application led to a correspondence between the parties. Shortly afterwards, however, the defender asserted a right to remove the old wall and erect his mutual gable independently of the pursuers, and accordingly he built a gable wall of the height of three storeys. The pursuers obtained interdict against him in the Sheriff-courts which was recalled upon appeal to the Court of Session, on the ground that considering how far the operation complained of had been carried' interdict was not the proper remedy. The pursuers further averred that in consequence of this

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encroachment and the building erected by the defender, they had suffered considerable loss and damage. This present action was accordingly brought, and the first conclusion of the summons was for declarator that they were proprietors of the subjects. The other conclusions were as follows:— “(Second), and it ought and should be found and declared by decree foresaid, that the wall which formerly separated the subjects above described from the property lying immediately to the north thereof, presently belonging to the defender, was mutual property, and that the defender had no right to deal with the same as his exclusive property, and that he was not entitled to remove the same, or to make other erections on the site thereof, without the consent of the pursuers; and further ( Third), the said defender ought and should be decerned and ordained by decree foresaid to restore the said wall, so far as the same has been removed by him, to its original height and condition; or otherwise ( Fourth), the defender ought and should be decerned and ordained to remove the gable wall built by him on the site of the said old wall, so far as it is of greater height than said old wall, and to the south of what was the centre line of the said old wall; or. ( Fifth), in the event of the defender not being decerned and ordained to restore said wall to its original condition, in terms of one or either of the two immediately preceding conclusions hereof, he ought and should be decerned and ordained by decree foresaid to make payment to the pursuers of the sum of £500, in name of damages.”

The defender, on the other hand, maintained that the wall in question had been used as a mutual gable by the pursuers themselves. Moreover, that the gable wall, which the pursuers now sought to have removed, was built by him in their full knowledge that he was doing so, and that during the course of its erection it was regularly inspected by a professional gentleman acting upon their behalf. He accordingly pleaded that they were now barred from insisting in the present action.

A proof was allowed to the parties of their respective averments, and it appeared that the pursuers had not used the wall as a mutual gable, but that a school which they had built along the said wall had been built entirely on their own property.

The Lord Ordinary ( Craighill) pronounced the following interlocutor:—

“ Edinburgh, 18th December 1874.—The Lord Ordinary having heard parties’ procurators on the closed record, proof, and productions, and considered the debate and whole process: Finds (1) that the pursuers are proved by their titles to be proprietors of the subjects in Cause way side, described in the first conclusion of the summons, and therefore decerns and declares in terms of that conclusion: Finds (2) that the wall which formerly separated said subjects from the property lying immediately to the north thereof, presently belonging to the defender, was mutual property, and being such, that the defender was not entitled to deal with the same as his exclusive property, and in particular to remove the said wall, or to make other erections on the site thereof, without the express or implied consent of the pursuers, and to this extent and effect decerns and declares in terms of the second conclusion of the summons. Quoad ultra finds, as matters of fact—(1) that in February 1873 the defender began to clear out the foundations of the tenement which has since been erected by him, and the south gable of which stretches across the site of the boundary wall referred to in the second conclusion of the summons. (2) That the intention of the defender, when he began his operations, was to erect the said gable upon ground which was his own property, including therein the northern half of the site of the said wall. (3) That after operations were begun, the defender became desirous to change his plan, so as to include in the site of the foundation of the said gable the whole site of the said wall; and accordingly he, on 24th February 1873, addressed to the pursuers the letter which is No. 54 of process, wherein, on condition that he was ‘allowed to occupy the piece of ground whereon is built the present boundary wall, and that he was relieved of all responsibility of protecting, shoring up, and repairing any damage to the school-house there, which may be required on account of operations,’ he offered ‘to build a mutual wall four stories high, with all necessary vents and wall presses, according to plan which will be submitted, and to make no charge for same to said Decons' Court’. (4.) That the offer thus made was not accepted by the pursuers as given; the pursuers requiring that in addition to the things conceded by the defender, he, as expressed in the letter of their agent, Mr John Auld, W.S., dated 26th February 1873, No. 13 of process, should ‘take on himself all responsibility of protecting or shoring the school-house or other buildings, and repairing all damage that may be done by his operations, and paying the whole expense of writings, &c., necessary to carry the arrangement out, and make it effectual. (5) That this counter-proposal was not accepted by the defender, but a part of the said wall, though shored up by the defender, having on 2d March 1873 fallen down partly in consequence of natural decay, and partly in consequence of the attempt to underfoot the northern half of said wall on which the defender had for some days previously been engaged, the defender removed the remains of the said wall the whole length of his intended gable; and upon the site of that portion thereof, extending in breadth to twenty inches or thereby, and on other ground seven inches broad, forming part of his property contiguous to the wall, he proceeded to erect, and erected, the said gable as it now stands. (6) That from the time when the defender began to build upon the pursuer's half of the site of the said wall, and in particular from the time when the gable had been raised higher than what had been the height of the said wall, the pursuers warned the defender that he was encroaching upon their property, and that if he so persevered without coming to terms with them, measures would be taken for the vindication of their rights. (7.) That the terms upon which the defender's consent to the erection of the said gable would be given never were arranged between the parties, the pursuers, on the one hand, insisting for more than had been offered by the defender in said letter of 24th February 1873, No. 54 of pro., and the defender, on the other hand, not only refusing to concede these terms, but withdrawing the offer originally made that the gable when erected should become

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mutual property, without contribution by the pursuers on account of the cost. (8) That not-withstanding the variance of views by which an agreement was prevented, both the pursuers and the defender desired and expected that in the end an agreement would be concluded; the defender carrying forward the erection of said gable, and the pursuers refraining from the adoption of measures by which its erection should be stopped in consequence of the feeling so entertained till the gable was all but completed; and (9) That ultimately, and on or about the 10th of May 1873, the defender was interdicted on a warrant granted by the Sheriff of Midlothian, at the instance of the pursuers, from proceeding further with the erection of said gable; but this interdict, on an appeal, was recalled in the Court of Session, on or about the 10th of January 1874, and immediately thereafter operations were resumed, and the wall was completed, as it now stands, without further opposition; Finds, in point of law, the facts of the case being as above set forth, (1) That the pursuers are not entitled to insist that the said gable shall be taken down, if reasonably indemnified for the use that has been taken of their ground; (2) That the defender is bound to make reasonable indemnification to the pursuers for the ground belonging to them upon which in part his said gable has been erected; and (3) That the defender having originally offered to build the said gable as a mutual gable without charging any portion of the cost against the pursuers, the adoption of this as the condition on which the said gable is to be left as erected will not be unfair to him, and will be full satisfaction or indemnification to the pursuers for the use which has been taken without agreement with them of a portion of their ground for its erection, and appoints the cause to be enrolled, that parties may be heard as to the application of these last findings to the remaining conclusions of the summons; reserving meantime all questions of expenses.

Note.—The first and second conclusions of this action had ceased before the proof was closed to be matters of controversy. The other conclusions, however, were keenly contested; and the Lord Ordinary has adopted, and has expressed in his findings, results which were presented neither by the pursuers nor by the defender. On the one hand, the pursuers, in their argument upon the proof, sought that decree in terms of the first and second conclusions of the summons should at once be pronounced, and that the action quoad ultra should be left undisposed of for the present, that it might by-and-bye be conjoined with an action of damage for interdict, alleged to have been wrongously obtained by the pursuers when the erection of the gable referred to was all but completed. This course the Lord Ordinary has not adopted, because in his opinion the conclusions of the present action ought to be exhausted, if that can reasonably be accomplished, without reference to these proceedings in another suit. On the other hand, the defender urged that though his conduct in using the pursuers’ ground in the erection of his gable was not strictly legal, the gable must be allowed to stand, and become his property, should the value of the ground belonging to the pursuers on which in part it has been erected, be paid to the pursuers; this value, according to the estimate of one of the pursuers’ witnesses, who is the only witness by whom evidence on the subject is given, being only £15. This view of the course to be followed the Lord Ordinary has also set aside. If anything is plain in this case, it seems to be that the defender, by using the ground belonging to the pursuers in the way he did, cannot make it his own, or compel the pursuers to sell it to him. They are entitled to retain what is theirs, and the only question of practical importance which has to be decided is, what, in the circumstances, are the terms on which the property should remain with them, and the gable which was erected by the defender partly upon that property be permitted to remain? The Lord Ordinary says this because, if the facts are as have been found, the pursuers, as he thinks, are precluded from insisting that the gable shall be taken down, and a fac simile of the old boundary wall erected, provided that all which they can reasonably ask for the use which has been taken of the ground shall be rendered. The pursuers saw the gable in the course of erection, and though they gave warnings, yet these appear to have been given rather for the purpose of bringing the defender to their terms, than to prevent its erection. They, in truth, were not anxious that the gable should not be built; and accordingly it was only when the building was all but finished that the interdict which has given occasion to the counter action was sought.

The terms to which the pursuers are entitled, and which may be imposed on the defender, have been to the Lord Ordinary the cause of some anxiety; but he in the end has come to think, in the first place, that the result at which he has arrived has legal warrant in the facts of the case; and that, in the second place, what has been given as amends is full indemnification to the pursuers, and not unreasonable satisfaction to be rendered by the defender as to the first of these points. If the Lord Ordinary is right in holding that though this ground is the property of the pursuers, and was built on without agreement with them, they in the circumstances are not entitled to insist that the gable shall be removed, it follows almost as a necessary consequence that it must be in the power of the Court to fix the terms on which it shall be permitted to stand. Regarding the second point, a few words of explanation are all that are required. The value of the gable has not been proved; but it is perfectly certain that the acquisition without payment of a mutual right in that gable is worth all the inconvenience and the loss and damage of every kind which the pursuers have suffered or can suffer through its erection, the only doubt which the Lord Ordinary felt is whether the indemnication given is not a greater burden than should be imposed on the defender. But when it is considered that the defender originally offered what has now been found due, and that he, by persevering in the course upon which he entered despite repeated warnings from the pursuers, has obtained all the advantages which he could have secured if the offer he made at the outset had been accepted, or had not been withdrawn, most will be disposed to conclude that the terms are not unreasonable, being such as are naturally suggested as well as recommended by the real facts of the case, as these have been established in the proof.”

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Parties were afterwards heard before the Lord Ordinary on the application of the finding in this judgment, and he then pronounced the following interlocutor:—

“ Edinburgh, 24th March 1875.—The Lord Ordinary having heard parties’ procurators as to the application of the findings set forth in the interlocutor of 18th December 1874, to the third, fourth, and fifth conclusions of the summons, being the conclusions which are still undisposed of, and having considered the debate and whole process: Primo, In respect of the findings relative to matters of fact contained in the said interlocutor, and in particular of the sixth, seventh, and eighth of these findings: Refuses the pursuers’ motion for decree in terms either of the third conclusion or alternatively of the fourth conclusion of the summons, and assoilzies the defender from both of these conclusions, and decerns: Secundo, On the pursuers’ motion, decerns against the defender for payment to the pursuers of the sum of £15 sterling, as damages to the pursuers in the premises, in terms of the fifth conclusion of the summons: Tertio, Finds no expenses due to or by either the pursuers or the defender, and decerns.”

The defender reclaimed.

Argued for him—Even assuming that the defender erected the mutual gable without the consent of the pursuers, he was only exercising his legal rights in so doing.

The other action was one of damages raised by Jack against Dr Begg and his co-trustees, and arose out of their unsuccessful attempt to interdict him from erecting the gable wall as stated above. Jack claimed £360 in name of damages. To this action it was pleaded by Dr Begg and his co-trustees that as their proceedings in the interdict were not malicious or without probable cause, no damages were due. In this action the Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 24th March 1875.—The Lord Ordinary having heard parties' procurators on the closed record, and on the issue proposed by the pursuer, No. 11 of process, and having considered the debate and whole process, Finds that there is no issuable matter on record: Therefore sustains the first of the defenders' pleas in law, dismisses the action, and decerns: Finds the pursuer liable in expenses, of which allows an account to be given in, and remits that account when lodged to the auditor for his taxation and report.”

Note.—In the present action damages are sued for as reparation for loss said to have been sustained by the pursuer through the granting of an interdict by the Sheriff of Midlothian on the application of the defenders. The pursuer contends that he is bound neither to aver nor to prove malice; while the defenders, on the other hand, maintain, in the first place, that if an issue shall be granted, malice must be inserted; and in the second place, that even were the pursuer willing to take an issue so expressed, no issue could be adjusted, inasmuch as malice has not been relevantly averred on the record. The Lord Ordinary has adopted, and by the preceding interlocutor has given effect to, this last view of the case.

“It is quite true that the defenders, in applying for and in keeping up the interdict complained of, are alleged on record (Cond. Art. 4) to have acted ‘wrongously, maliciously, and without probable cause.’ But the Lord Ordinary thinks that the bare use of such epithets is not enough. There must also, in his opinion, be something which affords at least a colourable reason for their application. Here, however, what is required has not been afforded, the averments of the pursuer presenting nothing which can be regarded even as a pretext for characterising either the obtaining or the maintaining of the interdict granted by the Sheriff as a malicious proceeding. The plea of irrelevancy, therefore, has been sustained, and the action, as a consequence, dismissed.”

The pursuer (Jack) reclaimed.

Argued for him—No averment of malice was necessary. The mere recall of an interdict was sufficient to prove that it was wrongous, and if the successful party could prove that he suffered injury he was entitled to damages.

Argued for the defenders—When founding upon a judicial proceeding it was necessary to the relevancy of the action to aver malice; it was not enough to allege in general terms that the act complained of was maliciously done.

Authorities— Abel v. Edmunds, July 10, 1863, 1 Macph. 1061; Millar v. Hunter, March 23, 1865, 3 Macph. 740; Snare v. Duff and Others, Dec. 10, 1850, 13 D. 286; Bailey v. Hume and Adamson, Dec. 8, 1853, 16 D. 151; Moir v. Hunter, Nov; 16, 1832, 11 Shaw 32; Reid v. Bruce, July 11, 1855, 17 D. 1100.

At advising—