Scottish Court of Session Decisions

The Lord President said that the Court mere now in a position to dispose finally of the case. The first matter was as to the road claimed by the pursuer, and that formed the subject of the first set of conclusions of the summons of declarator; but, after the record was closed, a minute was lodged for the defenders, to the effect that, with the view of avoiding further litigation as to the road, they were ready to agree that a right of footpath, as in the first conclusion, should be adjusted by the Court. To this the pursuer assented. On this minute and answers a remit was made to Mr Wylie, C.E., how this line should run. He had embodied his opinion in a report which was not quite satisfactory to the pursuer, who accordingly lodged a note of objections. Another remit was made to Mr Wylie, who prepared another report, in which he explained how he thought the footpath should run, and what protection was necessary for those using it. As to the maintenance of the fences, he concluded by saying that he thought the Company should be bound to maintain all the fencing referred to in his report—the gravelling in the slip, and the gang-way; but, in respect the public were put in as good a position in regard to the remaining portions of the road as they were before the alteration was made, he did not think the Company could be held liable in their maintenance. There had been no objections to this report, and it seemed to be a very complete and satisfactory disposal of the question as to the road. The result seemed to be, that the arrangement between the parties must be given effect to, and that there should be one road, to be made and completed in terms of Mr Wylie's report. By this arrangement, the pursuer had finally excluded herself from demanding removal of the slip. It was impossible that this road could be executed and maintained without the continuance of the slip; and, therefore, it might be assumed that, whatever remedy the pursuer might otherwise be entitled to as regards the servitude of bleaching, she could not have the slip removed. But, as to the second conclusion of the action, there was the verdict of the jury to deal with, and that must receive effect so far as consistent with the compromise between the parties. Now, as to the important part of the verdict as to the servitude, there was an alternative presented. The jury seemed to have been instructed, or to have supposed, that there was in this summons an alternative conclusion for damages for the loss of this servitude; but this did not seem to be the case. The summons demanded restoration, but the conclusion for damages was not for damages for loss of servitude, but In respect of the operations of the defenders. And the pursuer repudiated the notion of being satisfied with £15, and abandoning her servitude; and, accordingly, in the notice of motion of 18th January last, it was seen what she demanded, and that was complete restoration of the ground, and total removal of the works. For the reasons already stated, that demand could not be complied with to the full extent; but in so far as it could, consistently with the works of the defenders being allowed to remain, judgment ought to be pronounced for the pursuer. He recommended, therefore, as to the second branch of the case, that the ground, so far as not occupied by the works, should be declared, in terms of the verdict, to be subject to the servitude claimed by the pursuer. As to what remained of the case, the verdict against Derrick would be applied, and that would enable the Court to dispose of the whole conclusions of the summons.