Scottish Court of Session Decisions

In this suspension and interdict the magistrates of Rothesay seek to interdict the respondent from erecting a wall for the enclosure of his property, which wall, they aver, encroaches on the solum of the public road between Rothesay and Port-Bannatyne, of which they are custodiers. Issues were ordered and lodged. Thereupon the Lord Ordinary (Barcaple) intimated an opinion that the proper and expedient course was to try the case by a proof on commission, and parties having consented, that course was followed. A proof was accordingly led; and the Lord Ordinary, after hearing parties on the proof, refused the suspension and interdict. The suspenders reclaimed. On the case being called, the Lord Justice-Clerk stated that he had doubts as to the competency of the course that had been followed, and appointed parties to be heard on the question whether this was an action on account of injury to land where the title is not in question, and as such one of the causes enumerated in the Judicature Act, and appropriated to trial by jury.

After hearing counsel, the Court took time to consider.