Scottish Court of Session Decisions

Mrs Cassels or Mutrhead was tenant of the Douglas Arms Inn at Bothwell, and Robert Scott, blacksmith, possessed an adjoining house, with some back-ground, part of which was a close used by him and his tenants. On one side of this close was the wall of the inn, and it was the exclusive property of Mrs Muirhead's landlord, being built within the march, and with an eaves-drop free. But Scott had obtained leave, in erecting a shed, to let it into the wall of the inn, and rest it thereon. Disputes arose between Mrs Muirhead and Scott and his family, and she having opened a window in the principal room of her inn, which looked out above the roof of the shed into Scott's close and back-ground, he put up a board on the roof of the shed, so as to exclude the light and air from the window. The husband of Mrs Muirhead opened the window and kicked down this board, upon which, one of Scott's daughters got on the roof of the shed and threw in a panfull of clean water, which wet Muirhead's clothes and the carpet of the room, and wet the roof of the kitchen which was below. Filth was also found to have been thrown into the room by this window, but the party who threw it was not seen. Mrs Muirhead and her husband, who had, some time before, used letters of lawborrows against Scott, then presented a complaint to the Sheriff of Lanarkshire, craving him “to prohibit and discharge the said Robert Scott, by himself or others in his name, or by his authority, from throwing filth or water, or any thing else, through the said window, into the petitioners' dining-room, or from putting up any board, or other obstruction, to intercept the light or air at the said window, from disturbing or molesting the petitioners, in any way, in the peaceable possession of the said premises.”

The Sheriff allowed a proof, on considering which, he “found it established, that the defender's daughter threw a panfull of water in at the window in question; that the pursuer has failed to prove by whom the filth was thrown in at the same window; that the defender erected a board upon the roof of the shed in question, and that such board intercepts the light from the pursuer's window; that the said board was erected upon the roof of the said shed, which roof rests, by consent of the proprietor, on the wall of the pursuer's house; found, therefore, that the defender is not entitled to make use of the roof to the injury of the proprietor or tenant of the house; therefore continued the interdict as craved, and farther interdicted and discharged the defender, by himself or others, from erecting any such board to intercept the view from the said window, or in any way to disturb or molest the pursuer in the peaceable possession of the premises in question ; and found the defender liable in expenses.”

Scott brought an advocation, in which the Lord Ordinary “advocated the cause; found, in regard to the first head of the interdict craved, that the respondents have failed to prove the averment on which the interdict was demanded, namely, that ‘the advocator and his family had been in the practice of throwing water and filth into the respondent's dining-room :’ Therefore, recalled the interdict, in that particular, as unwarranted and unnecessary: Farther, and in regard to the erection by the advocator of the board intercepting the light of the respondent's dining-room window, adhered to the judgment of the Sheriff, and continued the interdict; and finds no expenses due to either party, either in this Court, or in the Inferior Court.” ^*

Mrs Muirhead reclaimed, and the Court altered; remitted simpliciter to the sheriff; and found the respondents entitled to their expenses.

The Court observed, in reference to a portion of the Lord Ordinary's note, that it was not necessary to prove any continuous practice of throwing in water or filth at the window to warrant the application for interdict. It was proved that water had on one occasion been so thrown in, and, while a system of annoyance was going on, filth was also thrown in at the same window, which looked out on the advocator's back-ground. The application for interdict, therefore, was not made nimiously or invidiously, but on reasonable grounds, and ought to be granted.