Scottish Court of Session Decisions

This was an advocation from the Sheriff-court of Nairnshire. The action arose by a petition in the inferior Court, at the instance of Mrs Ritchie, liferent proprietrix of a small pendicle of ground adjoining the lands of the respondent, concluding that the respondent, who had filled up a ditch which divided the two properties, should be ordained to restore it to its former condition, the said ditch being alleged to be the march fence between the properties. In the petition, the petitioner described the ditch as having been a march fence for forty years, but in her condescendence it was stated that it had originally been formed out of the properties of the parties respectively, and that it was accordingly common property. It was also stated that march stones had been originally placed at the formation of the ditch in the centre of the ditch with the view of indicating the line of march between the properties. These latter statements were introduced into the revised condescendence at adjustment, and were objected to by the respondent in the discussion in the Supreme Court as incompetent. In addition to her averment of a march fence for forty years, the petitioner alleged possession of the ditch for seven years immediately prior to the date when the respondent filled up the ditch, and claimed the benefit of a possessory judgment. The respondent denied either that the ditch was ever a march fence or common property, and maintained that it had been made by his ancestor out of his own lands, and therefore belonged in property to him. In support of this contention, he relied mainly on the fact that from 1845, as seen from the plans produced, and from an earlier period, as spoken to by the witnesses, there had been a line of march stones in situ of the petitioner's pendicle, and on her side of the ditch, showing that the march stones, and not the ditch, were the boundary between the lands. The respondent further said that one of these march stones, at the south-east corner of the petitioner's land, had been removed after the raising of the action, and, that to suit this removal, the statement in the condescendence as to march stones being placed in the centre of the ditch had been incompetently made. The titles of the parties mentioned their lands as their respective boundaries, and made no mention whatever of a ditch. One of the plans produced was that of the burgh of Nairn, the common superior of both proprietors, and the respondent undertook to show that the line of march stones upon which he relied were traced in that plan, and in others which had been prepared long previous to the present dispute, in precisely the same direction, which placed the ditch in question entirely upon the lands of the respondent. The Sheriff-substitute allowed a proof of the parties' averments. The petitioner's proof consisted mainly of the evidence of the members of her own family, several of whom spoke to the period when she acquired her feu (1824), and said that the ditch was made about that time from land taken from each side. The possession of the ditch during the period required to found a possessory judgment was spoken to exclusively by two of the petitioner's sons, who were charged by the respondent as being either instrumental in or the parties who removed one of the march stones for the purposes of the action. The respondent, in his proof, endeavoured to show that the ditch had always been regarded as part of his property, and had been declared to be so by his predecessors. He also strongly relied on the position of the march stones, and on the removal of one of them in the interests of the petitioner. The Sheriff-substitute (Falconar) found that the averments of the petitioner were such as to entitle her to a possessory judgment, if proved, and that the proof was sufficient to establish them. The Sheriff (Bell) altered, holding that, even if the case could be treated as a possessory one, the evidence upon which possession was based was not credible. The respondent obtained decree for his taxed account of expenses.

The petitioner advocated. After the advocation was brought the petitioner died, and her executor was sisted to the process.

The Lord Ordinary ( Ormidale), before whom the process first depended, recalled the interlocutor of the Sheriff, and returned to that of the Sheriff-substitute.

The respondent reclaimed.

D.-F. Moncrieff and W. A. Brown, for him, argued—The case, as originally laid in the petition, was one of march fence, and it was incompetently altered on adjustment by the introduction of the statement that the ditch was made by a portion of land taken from each property. There is no relevant allegation of common property, because it is distinctly said that stones were laid in the centre of the ditch to mark the boundary, and, if the ditch was common property there was a pluris petitio in the petition, for it prayed for a restoration of the whole ditch to its former condition. The petitioner's contention was excluded by her titles, for they contained no mention of a ditch as the boundary of her lands, and a possessory judgment could not be founded upon a title which did not clearly include the subject in dispute. Assuming the petitioner's case could be dealt with as a possessory one, her contention failed—(1) because she had not relevantly set forth possession of the ditch, the only statement being that she had possessed her pendicle and its pertinents; (2) because the possession proved was not the possession alleged, assuming there was a sufficient allegation; (3)

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because the possessory period fell short of three months; (4) because the evidence of possession depended exclusively on the testimony of two men, the sons of the petitioner, who were utterly unreliable, they having caused the removal of the march stone, and their evidence being in itself contradictory.