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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Leck v. Merryflats Patent Brick Co [1868] ScotLR 5_619 (27 June 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0619.html
Cite as: [1868] ScotLR 5_619, [1868] SLR 5_619
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SCOTTISH_SLR_Court_of_Session
Page: 619↓
Court of Session Inner House First Division.
v.
Facts:
A tenant of lands for a particular purpose interdicted from using the ground for another purpose.
Henry Leck, proprietor of the lands of Upper Merryflats, in the parish of Govan and county of Lanark, let the said lands in 1863, on a twelve-years' lease, to Caird, Watson, & Co., for the purpose of making and disposing of bricks, tiles, pipes, and other articles. These parties subset the lands to the respondents. The complainer alleged that the “Merryflats Patent Brick Co. have recently, unlawfully and unwarrantably, and without the complainer's knowledge or consent, sublet or otherwise granted the use of a portion of the said lands adjoining the road leading from Paisley Road to Greenock Road, to the respondent John Coghill, contractor, Clydebank House, Yoker, for the formation of part of a private railway or tramroad from the Glasgow and Paisley joint line of railway to the site of a poorshouse and other buildings proposed to be erected by the Govan Parochial Board, and others, on the lands of Lower Merryflats, adjoining the complainer's said lands on the north. The said private railway or tramroad is used, or is intended to be used, by the respondent John Coghill for the conveyance of building materials from the said Glasgow and Paisley joint line of railway to the said lands of Lower Merryflats, for the purpose of constructing the said poorshouse and other buildings, but the respondents have no right to use or occupy any portion of the complainer's lands for any such purpose.”
The complainer asked interdict.
The Lord Ordinary (
“ Edinburgh, 15 th June 1868.—The Lord Ordinary interdicts, prohibits, and discharges the respondents, or any of them, and all others acting under their authority, from using the railway or tramroad in question, in so far as the same is constructed on the property of the complainer, for the carriage of materials from the Glasgow and Paisley joint line of railway to the site of a poorhouse, and other buildings connected therewith, proposed to be erected on the lands of Lower Merryflats, or for any purpose other than that of the carriage of materials for the use of, or manufacture at, the respondents' works.”
The respondents reclaimed.
Clark and Lancaster for reclaimers.
Young and Mackenzie for respondents.
At advising—
Lord President—As to the last part of the Lord Ordinary's interlocutor, it is a sufficient objection to it that it is not clear, and in an interdict clearness is necessary in order that the party interdicted may know what it is he is not to do. As to the rest, I have no doubt that his Lordship is right. The attempt on the part of the respondent is plainly to invert the nature of his possession. The subject is given him for one particular purpose, expressed in the deed itself. The object of the agreement with the contractor is to use the ground for another purpose. Now, on the authority of Mercer and other cases, that is clearly illegal. I think we must adhere, only varying the interlocutor as I have suggested.
The other judges concurred, and the following interlocutor was pronounced:—“Recall the interlocutor complained of, and remit to the Lord Ordinary of new to pass the note, and interdict, prohibit, and discharge the respondents and all others from making any use of the railway or tramroad mentioned in the note of suspension except for the
Page: 620↓
Solicitors: Agents for Complainer— Murray, Beith, & Murray, W.S.
Agents for Respondents— Millar, Allardice, & Robson, W.S.