Scottish Court of Session Decisions

Subject_1Property
Subject_2Possession
Subject_3Acquiescence
Subject_4Servitude — Commonty.
Facts:

A defender assoilzied from conclusion of removal of buildings and obstructions alleged to interfere with rights of pursuer, and from conclusion of declarator of encroachment on commonty.

The pursuer, a millwright, and proprietor of a shop and yard in Freuchie, in the county of Fife, brought this action against the defender, a carrier there, for the purpose of having it found that the defender ought to remove certain buildings and obstructions which, the pursuer alleged, interfered with his property and means of access thereto; and that it should be declared that he had encroached upon a commonty belonging to the pursuer and others, adjoining the pursuer's shop. The Lord Ordinary ( Jerviswoode), after a proof, pronounced an interlocutor, finding, “as matter of fact—1st. That the site of the building described and referred to in the third head of the revised condescendence for the pursuer has been in the possession of, and has been used by, the defender and his authors as the site of a building or buildings used formerly as a swinels cruive, and more recently as a stable, for time immemorial, and for forty years; that the building now existing thereon was erected by the defender, with the knowledge, and without objection thereto on the part of the pursuer; and finds that the defender offers, if called on by the pursuer, to remove the said building, in so far as it rests on the gable of the pursuer's house, and to erect a gable adjoining thereto, but within the limits of his own property, so as to support the roof of the said stable:

Page: 364↓

2d, That the road which runs on the east side of the shop of the pursuer is not fitted for use as a road for the passage of carts, and has not, in fact, been used for such passage, in so far as the same lies between the subjects of the pursuer and those of the defender, for forty years, or otherwise, as alleged on the record on behalf of the pursuer: 3d, That the said road is not the common road referred to as such in the titles of the property belonging to the defender, but finds that the road so referred to is that which, in fact, is situated to the west of the said shop of the pursuer: 4 th, That the midden-stead referred to in the fourth head of the condescendence, and which had previously been in the occupation and use of the pursuer, was filled up by the defender at or about the time at which the latter filled up a middenstead adjoining thereto, which he himself had occupied, and which he filled up in consequence of the interference of the inspector of the parishes of Falkland and Auchtermuchty therewith as a nuisance: And 5 thly, That the pursuer has failed to prove that the defender has built a shed or sheds and a byre on the site of the pursuer's said middenstead, so as to prevent free ish and entry to the same, or to the pursuer's shop and yard,”—and assoilzied the defender.

The pursuer reclaimed.