Scottish Court of Session Decisions

In this suspension and interdict the magistrates 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 suspender 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 upon this point the Court took time to consider. On the case being called to-day, parties were directed to speak to the merits, without reference to the objection to the procedure, which was not insisted on. The case raises a pure question of fact. The averments of parties and the proof have reference to the history of the ground in question, and extend back for a period of about fifty years, the contention being whether it is to be treated as part of the road under the custody of the suspenders, or as part of the respondent's property held by him as tenant under a long lease from the proprietor of Ardbeg. The main points relied upon are (1) the planting of a hedge and the forming of a ditch along the road at the part in question, between 1815 and 1850; but the Lord Ordinary has found that the proof clearly instructs both these operations to have been performed by the agricultural tenant of Ardbeg; (2) a call made by the magistrates in 1849 upon the proprietor of Ardbeg to fill up the ditch, as being dangerous and offensive, which not being responded to, the magistrates undertook themselves. The suspenders maintain that the ditch is the watercourse of the road; but the Lord Ordinary has found that it is impossible so to regard it, looking to its nature and origin, and to the position taken in regard to it by the suspenders in 1849. On the whole, the Lord Ordinary was of opinion that the history of the ground in question implies that it has all along belonged to the proprietor of Ardbeg and his tenants, and was never either acquired or possessed by the magistrates as trustees of the road. His Lordship accordingly repelled the reasons of suspension, and refused the interdict; and to-day the Court, on the same ground, adhered.