Scottish Court of Session Decisions

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Cite as: [1869] ScotLR 7_213_1, [1869] SLR 7_213_1

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Tuesday, January 4 1869.

7 SLR 213_1

Lindsay

v.

Adam

Subject_1Interdict — Servitude — Access — Proprietor — Tithe.
Facts:

Circumstances in which suspension and interdict granted against a proprietor who, without having in his titles a right to a piece of ground, refused to engage not to re-erect a paling across a road over this piece of ground, the complainer proving his titles gave him a servitude of access thereby and possession for forty years.

Headnote:

This was a suspension and interdict brought by William Lindsay, residing at Hermitage Hill, Leith, against John Adam, baker in Leith, in which he sought to have the respondent interdicted from erecting a paling across a certain portion of ground by which access was obtained to Hermitage Hill. On 7th January 1869 the respondent erected the paling complained of; and, it having been taken down by certain parties, he had it re-erected. On the following day the complainer wrote to the respondent requesting to know by what authority he caused the paling to be erected. No answer being returned, the complainer wrote again to the respondent on the 11th, and requested an assurance from him that no attempt would be made to have the paling again erected; and intimating that if no such assurance was given, he would be under the necessity of seeking protection. The assurance requested was not given, and accordingly the complainer presented the present note of suspension and interdict. He averred that by his title deeds he was entitled to access to his property by a road across the piece of ground on which the paling was erected; and that for upwards of forty years this road had been used by the complainer and his authors as an access by foot and also for carts and carriages. This the respondent denied. He asserted that the complainer had no title to the solum of the ground in dispute, and that at the best the complainer's right was only one of servitude of roadway thereon; and he stated his willingness to allow the complainer access by a footpath over the ground in dispute.

The Lord Ordinary ( Ormidale), after a proof, granted the suspension and interdict sought.

The respondent reclaimed.

Trayner for him.

Millar, Q.C. and Blair in answer.

At advising—

Judgment:

Lord President— This is a very special case. The judgment of the Lord Ordinary is based on the view that the respondent has no right to the solum over which the road lies. The title of the complainer bears that he is to have “access into the road on the east march of the lands feued by Miss Stair Primrose to Messrs Borthwick, Young & Co., merchants in Leith.” Their feu-contract thus describes the lands acquired by them:—“All and whole the south or upper part of the West Park of Hermitage, being all the ground south of the Meuse Lane at the back of the north row of the said West Park, according to a plan made out by Mr Robert Burn, architect in Edinburgh, in the year 1800, by which plan the said upper part of the West Park of Hermitage is said to consist of 240 feet or thereby from north to south, and of 520 feet or thereby from east to west, which subjects are bounded as follows.”

The contract then goes on to describe the boundaries, none of which are material save the one on the east. It is thus described:—“By the street, delineated on Robert Burn's plan as bounding the property, intended to be opened by Miss Primrose when she should feu, on the east, and of which street the said David Sutherland and his foresaids were to have a joint use and property.” This street seems never to have been formed by Miss Primrose. If it had been formed by her on the property she retained when she disponed the respondent's property to his author, the ground in question would have been the property of the respondent. If it had been formed, and on ground to the west of that so retained by her, the ground in question would have been excluded from the respondent's title, and he would have had no right to it at all.

The plan of the street is therefore part of the respondent's case, and that it has been lost heightens his difficulties. But there are still, I think, materials for helping us to arrive at a solution of the case. The respondent maintains that the boundary wall which divided Miss Primrose's retained property from that disponed to his author was to show the line of the street in

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question. But it would not have been natural for the street to have run in that line, which from the sketch before us appears to be a devious line.

But under the circumstances, it becomes advisable to look at the titles of the various proprietors. The complainer's titles give him a right of access to the road on the east of Messrs Borthwick's feu. There is no doubt, therefore, that the complainer got this small piece of ground to give him ish and entry to his property by the road in dispute. Then, in Mr Cochrane's titles there are similar provisions for access over the triangular piece of ground. And, lastly, there is some information to be derived from the actings of the respondent himself. In 1866 he sells to Mr Paterson, “All and Whole the unbuilt stances or piece of ground on the south side of Primrose Street, lying to the east of that tenement now belonging to Jame3 Galloway, with a frontage to Primrose Street, measuring 213 feet or thereby eastwards from the gable of the said James Galloway's property, and measuring along the mutual back wall which divides the said piece of ground from the ground belonging to the said David Anderson Paterson 214 feet or thereby eastwards from the wall on the eastern boundary of the said James Galloway's property, and measuring on the west end 96 feet or thereby deep, along the property of the said James Galloway, and at the east end 75 feet or thereby deep. … …. Which area or piece of ground is part of All and Whole the south or upper part of the west park of Hermitage, lying in the parish of South Leith and county of Edinburgh.” Now, does the respondent include in this any of the triangular piece of ground? He excludes every inch of it; and there is no reason why he should do so, or explanation as to the purpose to which he meant to apply that ground, supplied to us. I think, therefore, by this very disposition, he tacitly admits he has no title to the ground in dispute. The Lord Ordinary, in my opinion, put the respondent's case on the right footing— that he is not proprietor of the ground in dispute. If not proprietor, he is a mere usurper of this piece of ground; and the holder of a servitude is undoubtedly, therefore, entitled to object to his erecting of the paling on the road. I am therefore for adhering to the Lord Ordinary's interlocutor.

Lord Deas was absent.

Lord Ardmillan—I quite concur with your Lordship, and I have very little to add. The object of this triangular piece of ground was to give the complainer access to his property. Unless, therefore, the respondent can show he has a right to this piece of ground, he is not entitled to deprive Sir Lindsay of this access. In regard to the title of the respondent, there are certain general canons of construction; and it will certainly be a new proposition, that where there is a general disposition of ground, followed by words of measurement, that it can include lands beyond the measured boundary. I think we cannot read the titles more widely than they bear to be in themselves. If we go into the question of possession, it is abundantly clear that there has been as much use as from the nature of the subject could be expected.

Lord Kinloch— I am of the same opinion. I think, with the Lord Ordinary, that Mr Adam has failed to prove that he is proprietor of the ground in question. It is quite plain that the street referred to in the conveyance to Mr Adam's author was to be formed outside of the property intended to be conveyed; for it is made the boundary of that property. But it is said, how do we know that the street was not to be farther to the east, as the plan under which the street was to be formed has been lost? I think the fact that the street was forthwith made where it now stands, and has stood for so many years, is as good evidence of the intended line of it as any plan could be. This street, with its continuation, was reserved property to Miss Primrose, the disponer; and she gave the right and means to use it to the author of the complainer. With this use the respondent has no title to interfere.

Upon the point of actual enjoyment of the road, I think it has been as fully proved as the nature of the case admitted. I therefore think the Lord Ordinary is equally right on this point.

Counsel:

Agents for Complainer— Hunter, Blair, & Cowan, W.S.

Agents for Respondent— Murdoch, Boyd, & Co., S.S.C.
1869