Scottish Court of Session Decisions

Lord Curriehill differed. He said—The petitioners complain of operations by the defenders on their property, which, they say, are unlawful and without authority. They therefore pray for their removal and for repair of the damage caused. Now, reading this petition without any answers, I ask myself—Is it competent? Has the Sheriff no power to decide? And if he has, is the application in proper form? In my opinion, the Sheriff has jurisdiction, and the application is in a competent form. The defenders have given in a defence which is relevant, and, if established, entitles them to absolvitor. They say the ground was their own, and that their operations were executed under the authority of the Railways Clauses Act, and acquiesced in by the late Mr Maxwell. These allegations, however, are all expressly denied. No proof has been allowed. Are we to dismiss the petition on the mere statement of the defenders? There seem to be four objections to the petition—(1) It is said the question involves a competition of heritable rights. The competition is not raised on the face of the petition. I am not sure that a competition can be raised by a defender even where he produces a title, but here, where he does not, I am clear he cannot. (2) It is said petition is not a competent form of trying the question. I believe we are all agreed that that objection is not well founded. (3) It is said the defenders are entitled to the benefit of a possessory judgment. I think they are not. I think there is a fallacy here, arising from the use of the word removing. This is not a removing of a person from lands, but a petition for the removal of works. But further, a possessory judgment cannot be pleaded without a habile title. No title here is produced at all, and the only one we are referred to is a bounding title, which does not include the ground on which the works are erected. (4) It is said these works have been performed under the authority of an Act of Parliament. If this is proved it is a conclusive defence. But parties have not been allowed a proof; and I cannot dispose of this objection without assuming allegations by the defenders which are not admitted by the petitioners.

Lord Deas concurred with the Lord President. He said—The statements in the petition as to when the operations complained of were executed are somewhat vague, but the necessary reading of them is that it was at least thirteen years ago, because it was in the lifetime of Mr Maxwell, who died in 1853. The case is to be dealt with on the footing of what is stated in the petition, and there is no room for doubt that the works were erected thirteen years ago. They were not erected recently, but beyond the possessory period of seven years. Now, the railway company have been all along in the peaceable possession of the drain and the weir. They may not have had possession of the ground as property, but they have had possession of the structures. A person may be as much in the occupation and lawful possession of a thing on his neighbour's ground as of his own ground. I have no doubt of the jurisdiction of the Sheriff in regard to heritable property in all possessory questions, but he has jurisdiction in these only. The Sheriff's interlocutor is not happily expressed, because he has jurisdiction in possessory questions, as we held in the Lochmaben case and other cases. His jurisdiction in regard to heritable rights over another's property is the same as in regard to heritable property. But where one proprietor allows his neighbour to make a drain or a weir on his property, and allows it to stand before his eyes for a number of years—I don't think seven years are necessary—I doubt if it is within the jurisdiction of any Court to try that matter of right in a summary form. It is not the nature of the thing that here excludes the Sheriff; it is the lapse of time. You can only apply by summary petition where extraordinary despatch is required, but a thing that has stood unchallenged for thirteen years does not require extraordinary despatch. I should be disposed to take that view, although there was here no title whatever, and it was quite clear that the operation was on the petitioners' ground. It is not necessary to produce a title in regard to such a matter. Suppose my neighbour builds his house on the very verge of his own boundary, and throws his eaves-drop on my property, could any judge, after I had allowed it to stand for many years, determine the question of right in a summary application for the removal of the eaves-drop? Certainly not. As Mr Erskine says in his Principles (2, 1, 15)—“Where the property of a subject is contested, the lawful possessor is entitled to continue his possession till the point of right be discussed; and if he has lost it by force or stealth, the judge will, upon summary application, immediately restore it to him.” But that question does not arise here, for the company had express powers by section 16 of the Railways Clauses Act to do what they did. It appears to me that a great deal of the difficulty of this case has arisen from the way the case has been pleaded on record by the railway company; but I have a very clear opinion that the petition on the face of it was incompetent.

Lord Ardmillan concurred on the ground that this application was presented, not for the purpose of regulating but of inverting possession, but reserved his opinion as to the power conferred by section 16 of the Railways Clauses Act, which he thought it was premature to decide, an observation in which the Lord President concurred.

Neither party was found entitled to expenses in the Inferior Court, but the respondents were found entitled to expenses in this Court, subject to material modification, as the first debate of the case had been entirely thrown away.