Scottish Court of Session Decisions

This was an action at the instance of the Duke of Hamilton against Peter Johnston, residing at Muirbank Cottage, Reddingmuir, for declarator that a piece of ground situate in Reddingmuir was the property of the pursuer, that the defender had no right to it, and for decree of removing from it accordingly.

The pursuer averred that he was proprietor of the muirs of Reddingrig and Whitesiderig in the parishes of Falkirk and Polmont, forming part of the barony of Kerse, anciently belonging to the Abbots of Holyrood House. The rights of parties to the lands in question were determined in a process of division of the commonty in the year 1765, since which time the pursuer's predecessors had been in uninterrupted possession of the share of common set apart for them. The defender had wrongfully intruded upon a portion of it, extending to 185 parts of an acre, and had erected a house upon it, without any leave from the pursuer and without any right or title. He had refused to remove, though frequently requested to do so. He had been warned before building not to take the ground, and also to desist after he had commenced building.

The defender stated that his father had in 1861 sold the lands of Middlerigg to the pursuer, but that did not include “his rights and interests in the portion of the common muir of Redding as presently possessed by the defender, upon which he lately built a house.”

The pursuer pleaded—“(1) The pursuer being in virtue of his titles proprietor of the ground in question, and the defender being but a vitious possessor thereof, the pursuer is entitled to decree of declarator and removing in terms of the conclusions of the summons. (2) The defender having been warned not to build on the ground in question, did so in mala fide, and is not therefore entitled to any reimbursement.”

The defender pleaded—(2) “The defender and his ancestor having been in the uninterrupted possession of the ground in question for a period of 90 years, the pursuer was not entitled to remove him therefrom; and (3) “In any view, the defender is entitled to be reimbursed for the house and dykes erected by him on the said ground.”

After a proof (the purport of which sufficiently appears from the opinion of the Lord President) the Lord Ordinary pronounced an interlocutor finding as matters of fact that the ground in question was part of the land set apart in the process of division to the Duke of Hamilton for the use of the heritors entitled to servitudes in the said commonties; and “(2) That the defender's father had for many years taken the use of said ground without objection on the part of the Duke of Hamilton, and had neither paid nor been asked to pay rent therefor, and the defender, at the time when the house built by him on the same was erected, was or believed himself to be, as one of these heritors, still proprietor of that portion of the lands of Middlerig known by the name of Herdshill, which was excepted from the disposition of these lands granted in 1861 by the father of the defender to the Duke of Hamilton; (3) That though the defender, before beginning to build, not only did not get, but when he applied for it was told that a building lease would not be granted, he in prosecuting his operations acted on the persuasion that he had such an interest in the solum as entitled him, even without leave from the Duke, to put up the buildings which were erected; and (4) That the erection of these buildings increased the value of the property of which the pursuer claims in the present action to be the proprietor: In the second place, Finds as matters of law (1) that the pursuer is entitled to remove the defender from the ground in question; (2) that the buildings erected by the defender thereon were not erected in mala fide; and (3) that the defender, in case he shall be removed, will be entitled to claim from the pursuer, in name of recompense, the sum by which it may be shewn that the pursuer is lucratus through the erection of the said buildings,” &c.

A second interlocutor was afterwards pronounced, in which the above findings were applied, and the cause was appointed to be enrolled again for further procedure upon the question how far the pursuer was lucratus by the erections of the defender.

Upon leave being given, the pursuer reclaimed, and argued:—Upon the facts as proved, the defender could not be said to be in bona fide. He was not therefore entitled to recompense. The case of Barbour v. Holliday, July 3, 1840, 2 D. 1279, was a direct authority.

At advising—