Scottish Court of Session Decisions

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Cite as: [1872] ScotLR 9_456, [1872] SLR 9_456

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SCOTTISH_SLR_Court_of_Session

Page: 456↓

Court of Session Inner House Second Division.

Friday, May 17. 1872.

9 SLR 456

Stewart and Others

v.

Matheson.

Subject_1Interdict
Subject_2Sheriff
Subject_3Possessory Judgment.
Facts:

Held that a proprietor, having sold one of two contiguous estates, the marches of which were in dispute, was entitled to obtain interdict in the Sheriff Court against the buyers encroaching on subjects alleged by him not to be included in the estate sold; and that the seller was not bound to prove whether he had
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possessed the disputed subjects as parts of the sold or of the unsold estate. Observed that the remedy of the purchasers was by action of declarator.

Headnote:

In 1870, Sir James Matheson, of Achany and Gruids, sold to Charles Stewart, solicitor, George Grant Mackay, civil engineer, and William Taylor Rule, solicitor, all of Inverness, the estate of Rosehall, in the parish of Creich and the shire of Sutherland. Rosehall and Sir James' property of Gruids are contiguous, being separated by a ridge, in a bend of which are situated Loch-na-Fuarlich and some pasture land. The plans of the estates showed some discrepancy with regard to the boundaries of the property; but Sir James maintained that no part of Rosehall abutted on the loch, while the purchasers contended that the loch was included in the estate of Rosehall. No question as to the boundaries had arisen until the bargain had been concluded, but some doubts had been expressed before Sir James granted a disposition to the purchasers. In the course of the correspondence which took place before the execution of the disposition, Sir James expressly denied the right of the appellants to the subjects claimed. The terms of the disposition were, however, adjusted in such a way as to leave the question open. The purchasers then entered into possession of Rosehall, put a boat on the loch, and proceeded to erect a boat-house on the disputed pasture land. Sir James thereupon presented a petition to the Sheriff of Sutherland, craving that the purchasers should be interdicted from completing the said boat-house, fishing in the loch, or encroaching on the pasture land. The purchasers contended that the subjects in dispute were not the property of Sir James, and that the authors and shooting-tenants of Sir James in the estate of Rosehall had always enjoyed the right of fishing in the loch. After a proof of the averments of parties, the Sheriff-Substitute ( Mackenzie) found the petitioner's possessory right established, and granted interdict as craved; and the Sheriff ( Fordyce), on appeal, adhered to his Substitute's interlocutor.

The respondents appealed to the Court of Session.

Watson and Mackintosh, for the appellants, contended that the subjects in dispute had been possessed for seven years and upwards by the shooting-tenants of Rosehall, and must, therefore, be presumed to belong to that estate.

The Solicitor-General and Keir, for the respondent, answered that the subjects in dispute had been possessed for forty years and upwards by the agricultural tenants of Gruids, and therefore appertained to the latter estate; that the shooting-tenants of Rosehall had merely been permitted to fish in the loch by the courtesy of the proprietor; and that, as the respondent had refused to convey the subjects in dispute, the appellants could not resist the interdict, but must have recourse to a regular action of declarator.

At advising—

Judgment:

Lord Neaves—I have no doubt as to the principle on which this case ought to be decided. A sale was effected between the parties of a certain subject called Rosehall. By that sale the appellants acquired right to every subject falling under that name, but to nothing else. The bargain having been completed, it appears that the parties were not at one as to the precise subjects embraced by the name. Such differences often occur, and in order to settle them investigation is necessary. The seller means to dispone portions A, B, and C of his estate, while the buyer imagines that his disposition also includes the portions D, E, and F. How is the question to be settled? Is the buyer to take possession of the portions D, E, and F in spite of the protest of the seller? Is the latter to be coerced in the matter by the ipse dixit of the buyer? Surely not. I think that the rule melior est conditio possidentis holds in such a case. The matter must be cleared up by a declarator, and I cannot think that, pending such a proceeding, the buyer is to be permitted, at his own hand, to take possession of what he claims. The seller, who was originally in possession, is the party to be preferred, and he is not thus to be ousted. There has been an ingenious attempt to show that this is not an ordinary question of marches, but of some special right to the subjects in dispute; that, whatever may have been the agricultural possessions of these subjects, the appellants had possessed them for sporting purposes, and entertained for them a sort of pretium affectionis. But there is no ground for any such distinction, and the matter is purely a question of the adjustment of marches, involving an investigation as to the right of property, to determine which a regular action is necessary.

I do not regard this as a possessory question at all. The same proprietor possessed the two adjacent estates for a much longer period than seven years, and it matters little what he possessed under the name of Gruids, and what under the name of Rosehall. The evidence led by the appellants is totally insufficient to support their case; and even were it otherwise, the question is not one that can be competently decided in proceedings of the present nature. It was, therefore, clearly competent to Sir James Matheson to say, “I have a title to these subjects, and I protest against and interdict you from taking possession of them until you have proved your title by a formal declarator.”

Lord Benholme—While I arrive at the same result in favour of the respondent in this case, I entirely differ from the ground on which Lord Neaves has rested his judgment. I consider that ground too narrow, and I concur with the Sheriff in the view of the case which he has taken. I regard this strictly as a possessory question. There is no doubt as to the fact, that the Rosehall shooting-tenants exercised the privilege of fishing in the loch in dispute, but we have no evidence as to their title to do so. Had their title been established, I should have arrived at a different result. On the other hand, it has been satisfactorily proved that an agricultural tenant of Sir James possessed the subjects in dispute as pertinents of the estate of Gruids. Sir James has, therefore, established a possessory right to the subjects as portions of his estate of Gruids, and on that ground he is entitled to his interdict.

The Lord Justice-Clerk and Lord Cowan concurred with Lord Neaves.

The Court pronounced the following interlocutor:—

“ Edinburgh, 17 th May 1872.—The Lords having heard counsel on the appeal: Find, in point of fact, that prior to the sale of the estate of Rosehall to the appellants the respondent was, and had been since 1844, in possession of the subjects in dispute: Find that in the year 1870 the appellant purchased

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from the respondent the estate of Rosehall: Find that prior to the purchase the appellants were informed by the respondent that they must satisfy themselves as to the extent of the estate, and that before the disposition was executed a question was raised between the seller and purchasers in regard to the subjects now in dispute: Find that the purchasers accepted the disposition without that dispute having been adjusted: Find that in these circumstances the appellants were not entitled at their own hand to assume possession of the disputed subjects: Therefore dismiss the appeal, affirm the judgment appealed against, and decern: Find the appellants liable in expenses, and remit to the auditor to tax and report.

Solicitors: Agents for Appellants— Mackenzie, Innes, & Logan, W.S.

Agents for Respondent— Stuart & Cheyne, W.S.

1872