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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sutherland v. M'Beath [1866] ScotLR 1_249_2 (31 March 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0249_2.html
Cite as: [1866] ScotLR 1_249_2, [1866] SLR 1_249_2
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SCOTTISH_SLR_Court_of_Session
Page: 249↓
Court of Session Inner House First Division.
v.
Facts:
In an interdict by one of two tenants under the same landlord against the other entering upon a piece of ground claimed by both, held that as the farms had each been taken under known names and with recognised boundaries, the onus of proving any alteration of the boundaries lay on the defender alleging it, and, as he had failed to prove his allegation, interdict granted.
This was a case where one of two conterminous tenants holding under the same landlord sought to have the other interdicted from entering upon and cropping upwards of thirty acres of ground, which he alleged formed part of his farm. The defence was that the ground in question had been let to the defender as part of his tenement. Interdict was granted by the Sheriff-Substitute, and his judgment was affirmed by the Sheriff. The defender advocated, but the Court adhered, the principle of the judgment being that when a farm is taken under a name by which it was previously well known and had recognised boundaries, the onus of showing that these boundaries had been altered or modified lies on the party founding on such alleged alterations. In the present case the advocator was held to have entirely failed in this respect.
Counsel for Advocator— Mr John Millar. Agent— Mr James Bell, S.S.C.
Counsel for Respondent— Mr Francis W. Clark. Agent— Mr David Forsyth, S.S.C.