Scottish Court of Session Decisions

This was an action of declarator raised by Elizabeth M'Queen or Reid, wife of Robert Reid, gardener, Johnstone, and her two sisters, against John B. M'Coll, Dunfermline, concluding for declarator that all and whole a certain tenement of land and houses, “with the yard belonging thereto at the back thereof, and pertinents lying near the West Port of Inverkeithing, upon the north side of the High Street, bounded by the lands sometime of John Gilmour, thereafter of Alexander Lawson, afterwards of David Lawson, and now belonging to the defender, on the west; the land sometime of the heirs of John Thomson, afterwards of John Gelly's heirs, now belonging to Durie, on the east; the way above the head of the yards on the north; and the High Street of Inverkeithing on the south parts, including the smithy, stables, and other erections, and whole garden ground and yard embraced within the said boundaries, and lying between the said High Street of Inverkeithing on the south and the way above the head of the yards on the north, are the exclusive property of the pursuers,” and that the defender should be ordained to remove therefrom.

The pursuers made their claim as proprietors of the subjects in question in virtue of a writ of clare constat granted in their favour by the provost and bailies of the burgh of Inverkeithing, dated and recorded 26th October 1878, whereby they acquired the rights of their father or predecessor. They alleged also immemorial possession, and that the defender's author, notwithstanding that he held his own property under a bounding charter, had encroached illegally on the pursuer's property, enclosing and building a stable upon it, and that in mala fide and without authority or consent of the true owners. The defender, it was explained, represented the person who had encroached, and now held his property.

The defender, on the other hand, refused to give way, alleging immemorial possession, and that the buildings erected by his predecessor were put up in absolute good faith and in the knowledge of the pursuers or their authors.

The writs and documents founded on sufficiently appear from the Lord Ordinary's note.

The pursuers pleaded, inter alia—“(1) The whole of the subjects described in the summons being the property of the pursuers under and in virtue of their rights and titles libelled, they are entitled to decree of declarator as libelled. (3) The said David Lawson having taken possession of the foresaid portions of the subjects in mala fide, and without the authority or consent of the pursuers' predecessor, no right to or interest therein, or any part thereof, was acquired by him. (4) The defender having no right or title to any part of the said subjects, he is bound to remove from the foresaid portions thereof possessed by him, and cede possession thereof to the pursuers.”

The defender pleaded, inter alia—“(2) The subjects in dispute being the property of the defender under his rights and titles, he should be assoilzied from the conclusions of the summons and found entitled to expenses. (3) The subjects in dispute having been possessed for over the prescriptive period by the defender and his authors, under and in virtue of their rights and titles, the defender is entitled to absolvitor. (4) The pursuers having no right to or interest in the subjects now in dispute, and quoad ultra the rights of the pursuers never having been questioned by the defender, and the action being therefore unnecessary, the defender should be assoilzied from the conclusions of the summons. (5) The defender and his predecessors having erected the whole buildings and others now existing upon the lands in dispute in bona fide, and in the full knowledge of the pursuers or their predecessors, the pursuers are, in any view, bound to indemnify the defender for the full value thereof.”

The Lord Ordinary ( Adam) pronounced an interlocutor assoilzieing the defenders from the conclusions of the summons and decerning. He added this note:—

“ Note.—The pursuers and the defender M'Coll are respectively the proprietors of two adjoining houses in the High Street of Inverkeithing, and of certain subjects lying behind these houses. The subjects are shown on the plan, No. 21 of process. The subjects coloured blue on that plan are the undisputed property of the pursuers. The subjects coloured pink are the undisputed property of the defender. The subjects in dispute are coloured yellow. All these subjects lie between the High Street of Inverkeithing on the south, and the way above the head of the ‘yards,’ or the old Roman Road, on the north.

Both parties averred immemorial possession of the subjects, and a proof was accordingly led. There can be no doubt as to the result of that proof, viz., that it has very clearly established that, not only for the prescriptive period, but as

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* Decided 25th October 1879.

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far back as the memories of the oldest witnesses can reach, the defender and his predecessors have had exclusive possession of the subjects in dispute, and not only so, but also that the predecessors of the pursuers were for several years tenants and paid rent to the predecessors of the defender for a part of the subjects. Nevertheless, the pursuers after all these years now claim these subjects, on the ground that they are expressly included in their titles, that they are not included in the defender's titles, and that his titles are not habile to enable him to acquire a right to the subjects by prescriptive possession.

As regards the pursuers' titles, in the absence of any competing title they would be sufficient to give them a right to the subjects.

The oldest title produced by the pursuers is a disposition dated 4th July 1719, granted by David M'Leish for himself, and as taking burden on him for his mother, in favour of Daniel Drummond, of certain subjects described as ‘All and Haill that tenement of ours, and the yard belonging thereto at the back thereof, lying near the west part of the said burgh, on the north side of the street, having the lands of John Gilmore on the west, the lands of the heirs of John Thomson on the east, the way above the head of the yards and the King's High Street on the other parts.’ Daniel Drummond was on the same day infeft on this disposition. The subjects came into possession of the pursuers' grandfather John M'Queen, by disposition dated 19th May 1787, in which they are described as bounded by the lands sometime of John Gilmore, now of Alexander Lawson, on the west; the lands sometime of the heirs of John Thomson, now of John Geliy, on the east; the way above the head of the yards on the north; and the High Street of Inverkeithing, on the south parts. The lands which are described as the lands sometime of John Gilmore, now of Alexander Lawson, are the lands which are now the property of the defender. The lands which are described as the lands sometime of the heirs of John Thomson are now the property of a Mr Durie. The description is substantially the same in the subsequent titles, and in the pursuers' own title, which is a writ of dare constat in their favour as heiress-portioners of their father David M'Queen, dated 26th October 1878.

It is clear that this is a description of the whole ground lying between the pursuers' house in the High Street on the south, and the way above the yards, or the old Roman Road, on the north; and therefore in the absence of any competing title would be sufficient to give them a right to the subjects in dispute.

The question therefore is, Whether the defender can show a better title to the subjects?

The oldest title produced by the defender is a disposition by John Gilmore to Robert Cock and his spouse, dated 21st November 1754. The description of the subjects thereby conveyed is as follows:—‘All and haill that my tenement of land and houses, high and laigh, back and fore, with the yairds at the back thereof, corn barn and pertinents, lying within the libertys of the said burgh of Inverkeithing on the north side of the High Street, bounded by the lands sometime of Adam Deas, now of Thomas Chapman, on the west; the way above the head of the yeards on the north; the lands belonging to the heirs of Daniel Drummond on the east; and the King's High Street on the south parts: As also, All and haill that piece of ground, consisting of 10 roods, purchased by me from Adam Deas, and inclosed by me with a stone dyke, lying also within the libertys of the said burgh, bounded by the yeards above disponed and Daniel Drummond's yeard on the east; the lands sometime of James Bennet, yrafter of George Dishington, now of Colin Sharp, on the west; the way above the head of the yeards on the north; the yeard sometime belonging to the said Adam Deas, now to the said Thomas Chapman, on the south parts.’

“The description is continued in the titles in similar terms until 1852, when in an instrument of sasine and cognition in favour of David Lawson, of date 3d July in that year, the first parcel of lands is described as being ‘bounded by the lands sometime belonging to the heirs of Daniel Drummond, now of John Durie and David M'Queen, on the east;” and the second parcel of lands is described as ‘bounded by the lands above described and John Durie's yard on the east.’

The addition to the description of the words ‘now of John Durie’ was no doubt made with the view of bringing the description in the titles into conformity with the state of possession at the time, as undoubtedly the subjects then possessed by the granter of the disposition did extend in part to, and were bounded by, John Durie's yard.

The pursuers, however, maintain that the lands which then belonged and now belong to John Durie never did belong to the heirs of Daniel Drummond; that the lands which belonged to the heirs of Daniel Drummond are the lands behind their tenement on the High Street, and described in their titles.

So far as the titles produced are evidence of the matter, the pursuers would appear to be right in this contention.

The defender's own title consists of a disposition by Archibald Thomson in his favour, dated 20th September 1875, and registered 15th February 1876. It contains a new description of the subjects in detail. But as prescription has not followed on this, or on the sasine of 1852, the terms in which the subjects are therein described would not appear to be material, and it will be necessary to consider the terms of the defender's older titles.

It is evident that by the disposition of 1752, above quoted, two separate subjects are described—the first extending all the way between the High Street on the south, and the way above the yards, or the Roman Road, on the north; and the second consisting of 10 roods lying to the west of this, bounded by the Roman Road on the north, but not extending to the High Street on the south, being there bounded by the yard then belonging to Thomas Chapman.

It is extremely difficult now to understand or to reconcile the descriptions of these two parcels of ground. There would not be so much difficulty with reference to the ground last described, which seems to be sufficiently identified as the piece of ground coloured pink, and marked 567 Y on the plan. The size corresponds with that in the description, and the north-west and south boundaries also correspond. The difficulty, however, arises with reference to the east boundary, which is described as the yard above disponed

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and Daniel Drummond's yard on the east. Room must therefore be found for the ground first described to the east of the ground second described. But turning to the description of the ground first described, it would appear to be a part of the same ground, because its eastern boundary is described as being the lands belonging to the heirs of Daniel Drummond—that is, the line 5 Y on the plan—and its western boundary the lands sometime of Adam Deas, now of Thomas Chapman. On the other hand, a ‘corn barn’ is conveyed, which is clearly the stable at the north end of the disputed ground, which is proved to have been formerly a corn barn.

But however that may be, the Lord Ordinary is of opinion that the defender has a sufficient title on which to prescribe the whole of these subjects, and that he has prescribed a right to them.

The defender has a grant of a tenement of land and houses, with the yards at the back thereof, corn barn and pertinents, lying on the north side of the High Street, bounded by the lands of Adam Deas, now of Thomas Chapman, on the west; the way above the head of the yards on the north; the lands belonging to the heirs of Daniel Drummond on the east; and the King's High Street on the south parts.

It is maintained by the pursuers that this is a description by boundaries, and that, according to the principles applicable to bounding charters, the defender cannot prescribe beyond these boundaries.

A bounding charter is described by Mr Erskine (ii. 6, 2) as one ‘which points out the limits of the grant by march stones, the course of a river, or other obvious and indubitable boundaries.’ This definition applies to two of the boundaries in this case, viz., the way above the yards on the north, and the High Street on the south; and it may be admitted that the defender could not prescribe beyond these limits. But none of the disputed ground lies beyond these limits.

But the east and west boundaries are not obvious and indubitable boundaries. There is nothing on the ground, or referred to in the disposition, to indicate what were the boundaries of the lands belonging to the heirs of Daniel Drummond on the east. The defender and his predecessors have possessed the lands in dispute from time immemorial, and it does not appear to the Lord Ordinary that the defender is now bound to go into any inquiry with the view of ascertaining what was the extent or boundaries of the lands which belonged to the heirs of Daniel Drummond in the year 1754, when the description in question appears in the defender's ttiles. The defender and his predecessors have possessed these lands for time immemorial under their titles, and that appears to the Lord Ordinary to be sufficient. It cannot be said that the defender is endeavouring to prescribe a right against his own title. The Lord Ordinary was referred to the cases of Magistrates of St Monance v. Mackie, March 5, 1845, 7 D. 582, and Ker v. Dickson, 18th July 1842, 1 Bell's App. Ca. 499—but these were both cases of bounding charters— Lord Advocate v. Hunt, 5 Macph. 1; see also Young v. Carmichael, Dict. 9636; Countess of Moray v. Wemyss, Dict. 9636; Fife's Trustees v. Cuming, Jan. 16, 1830, 8 Sh. 326.”

The pursuers reclaimed, and argued—There was no good title set forth by the defender on which he could found prescription. The charter under which he held was a bounding charter, and prescription could not run on subjects outside the limits thereby imposed. Besides, the proof of possession was not made out.

The respondent answered—The Lord Ordinary's judgment was sound. The proof of possession for half a century was very clear. The argument of the other side was really reduced to the proposition that the writs founded on did not constitute a habile title upon which to prescribe a right of property in the subjects in dispute. These subjects lay immediately to the east of those undoubtedly included within the respondent's title. Unless, therefore—for the question must so resolve itself—the respondent's title was a bounding one, acquisition by prescriptve possession was possible. The eastern boundary, however (on which the dispute turns), was in the respondent's titles said to be “the lands belonging to the heirs of Daniel Drummond.” The cases of bounding charters did not really touch such a description as that. This was not a bounding charter—the bounding being only a name, “heirs of Daniel Drummond.” It would be a strong thing to say that a proprietor holding such a title was obliged to investigate and keep in view what extent of subjects belonged to Daniel Drummond's heirs, and thus had the duty of ascertaining by means of a difficult inquiry what Erskine said must be an “obvious and indisputable boundary.” Further, it seemed to be admitted that acquisition of a small part of the breadth of “Daniel Drummond's” property was possible; but that acquisition of the whole breadth thereof, so as to be bounded by some one else, was incompetent. The moment, however, acquisition to any extent beyond the bounds of the respondent's own title was admitted, the question of a bounding charter was at once solved in favour of the respondent. Were the title in question really a bounding one, acquisition of anything whatever beyond its scope was legally impossible.

Authorities (besides those quoted by the Lord Ordinary)— Scot v. Ramsay, 15th Feb. 1827, 5 S. 367; Stewart v. The Greenock Harbour Trustees, 12th Jan. 1866, 4 Macph. 283; Stair, ii. 2, 26–3, 73; Lumsden, 21st June 1870, 42 Scot. Jur. 530; Ersk. Inst. ii. 6, 3; Gordon v. Grant, 12th Nov. 1850, 13 D. 1; Suttie v. Gordon, 26th May 1837, 15 S. 1037; Ewing v. Lennox, 22d Jan. 1878, 6 S. 417.