Scottish Court of Session Decisions

This was a question between Sir Charles W. A. Boss of Balnagown, and John Meikle, printer, residing at Grantfield, near Tain, arising in a petition presented by Meikle in the Sheriff-court of Boss-shire. The petitioner alleged that he was proprietor of certain lands at Grantfield, in virtue of a charter from the magistrates of Tain to George Mackie, dated in 1800, and a disposition by Mackie to the petitioner's father in 1801, and that he and his father had had uninterrupted possession of the subjects from 1801 until recently, when Sir Charles Boss had claimed a part of the subjects and put up a paling on a part thereof. The petitioner craved interdict and removal of the paling.

The Sheriff-substitute ( Taylor), after a proof, pronounced this interlocutor: “ Tain, 1 st July 1868.—The Sheriff-substitute having considered the proof led by the parties, with the documents produced by them, and the whole process: Finds as matter of fact, first, That the petitioner is proprietor of the lands of Grantfield, under a title which describes them as bounded by ‘the road leading from Tain by the King's causeway to Balnagown, until it goes to the rivulet running from Logie to Pitmaduthie Moss, dividing the ground hereby feued from Balnagown's property at the west and south, with the parts, pendicles, and pertinents thereof:’ Secondly, That the respondent, Sir Charles Boss, is proprietor of the estate of Balnagown, including the property referred to in the petitioner's title as divided by the rivulet therein mentioned from the petitioner's lands of Grantfield; Thirdly, That the respondents, on the day on which this petition was presented, erected a wire fence along the side of a channel in which a stream, known by the name of ‘Durack,’ formerly ran, but from which the water has been diverted; the fence being designed to exclude the petitioner from the land west and south of the channel, and to put the respondent, Robert Ross, in possession thereof as the tenant of the other respondent Sir Charles Boss; Fourthly, That the respondents have not proved their averment that the stream which formerly ran in the said channel was the rivulet mentioned in the petitioner's title as dividing the lands of Grantfield from the estate of Balnagown; and Fifthly, That the petitioner has, for a period exceeding seven years, had the exclusive possession, as part of his lands of Grantfield, of the pasture land west and

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south of the said channel, in so far as lying between the channel and a house occupied by Margaret M'Kenzie, and that the said wire fence divides the pasture land from the remainder of the petitioner's lands of Grantfield lying on the opposite side of the said channel: Finds, in point of law, that in the aforesaid state of the facts the petitioner is entitled to be maintained in possession of the said pasture land west and south of the said channel lying between the channel and the said house occupied by Margaret M'Kenzie, until the right of property be determined in the competent Court, and therefore continues the interdict, and decerns the respondents to remove the said wire fence: Finds the petitioner entitled to expenses of process,” &c.

On appeal the Sheriff ( Cook) recalled the 4th finding, but quoad ultra adhered.

Sir Charles Ross advocated.

Clark and Rutherfurd for advocator.

Millar and J. C. Smith for respondent.

The Court adhered, holding it to be clear that the respondent held a title to which his possession, which was sufficiently proved, might fairly be ascribed, while the advocator produced only a title which did not expressly include the ground, and on which no possession followed.