Alexander Lockhart of Craig-House v. John Seivewright of South-House
Date: 20 January 1758 Case No. No 13.
Conterminous heritors are bound to repair and uphold march dykes formerly built.
Click here to view a pdf copy of this documet : PDF Copy
In March 1745, Alexander Lockhart purchased the lands of Craig-house from John Seivewright's father. The boundary on the east, between the lands of Craig-house and the lands of Plewlands, the property of Seivewright, is described in the disposition to be a stone dyke, ‘ which stone dyke, upon the east side, is hereby declared to be, now, and in all time coming, the boundary ‘between the said lands of Plewlands and the lands of Craig-house.’
In the year 1757, this stone dyke had become decayed; and Mr Lockhart, with a view to inclose that part of his estate, brought an action against Seivewright, to oblige him to contribute half the expense of repairing or rebuilding it, or of making such other sufficient fence as should be found to be proper.
Pleaded in defence, The dyke in question was not built by two conterminous heritors, in terms of the act 41st parl. 1661, but by the heritor of Craig-house, for the advantage of that estate, when he was proprietor also of Plewlands; and the clause in the disposition, declaring this dyke the boundary, must be understood to transfer the property of it to the purchaser of Craig-house: That the defender will have no benefit from this dyke, because his estate of Plewlands is uninclosed, and is let out to tenants upon leases for a great number of years. The act of parliament 1661, makes no provision for upholding or repairing march-dykes after they are built; and though, at common law, those who have concurred in building, may be obliged to uphold; yet this will not apply to the case, where one heritor has been at the sole expense of building, without following the rules of the act 1661; the intention of which statute was only to encourage the inclosing lands, but not to provide for preselving inclosures already made.
Answered, It is of no consequence, whether this dyke was built by Seive-wright, when proprietor of both estates, or at a time when the estates belonged to different proprietors; since by the disposition to Mr Lockhart, it is declared to be the march-dyke; and, of consequence, is the common property of the pursuer and defender. The act 1661 makes no distinction, whether the heritor who is required to concur in building a march-dyke, will or will not reap any advantage from it, by completing an inclosure upon his own estate; and after the dyke is erected, it must follow, at common law, independent of the act 1661, that each heritor shall contribute equally to uphold and repair their common property.
“The Lords found the defender liable to contribute one half of the expense of upholding the march-dyke between the pursuer's property and his.”
Act. Garden.Alt. Scrymgeour.
Fol. Dic. v. 4. p. 80. Fac. Col. No 91. p. 163.
