Scottish Court of Session Decisions

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Cite as: [1881] SLR 18_495, [1881] ScotLR 18_495

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SCOTTISH_SLR_Court_of_Session

Page: 495↓

Court of Session Inner House First Division.

Friday, May 13. 1881.

18 SLR 495

Sclater

v.

Oddie.

Subject_1Mora
Subject_2Acquiescence
Subject_3Silence for Thirty Years.
Facts:

Where the proprietor of two adjoining plots of ground sold one in 1850, and himself assisted the purchaser in 1851 to erect a building thereon without making any objection at the time or for thirty years after— held barred by mora and acquiescence from proving that the building so erected encroached upon his property.

Headnote:

This action was brought in the Sheriff Court of Orkney by Mrs Wilson or Sclater, the liferentrix of a dwelling-house in School Place, Kirkwall, against Peter Oddie, the proprietor of an area of ground immediately to the north of her property. The prayer of the petition was to ordain the defender “to remove the front and back walls of a dwelling-house presently in course of erection by him in School Place, Kirkwall, northwards, so as to leave a clear space between the same and the northern gable of the petitioner's dwelling-house, also situated in School Place, Kirkwall, aforesaid, and adjoining the defender's said house in course of erection.”

The averment made directly to support this prayer was contained in Condescendence 3, which as it originally stood was in the following terms:—“The defender is presently in course of erecting a dwelling-house, &c., on said space or plot of ground immediately to the north of the pursuer's said dwelling-house, but without building a gable of his own he has so built the side walls of his house as to cause them to abut close upon the northern gable of the pursuer's house and has founded the end portion of said walls upon the scarcement or foundation of the pursuer's gable, which is her exclusive property, and thereby wrongfully; but has not only failed to erect a wall or end gable for his said dwelling-house, but has made, and persists in making, the northern end or wall of the pursuer's dwelling-house the southern end or wall of his said dwelling-house, and so encroaching on the rights and property of the pursuer.”

The Sheriff-Substitute ( Mellis) granted the prayer of the petition, but on appeal the Sheriff (Tawas), in respect that there were no relevant averments in the petition to support its prayer, dismissed the petition with expenses against the pursuer.

The pursuer appealed to the First Division. The case was heard on Thursday, 17th Feb., when the Court allowed both parties to amend their record. The pursuer accordingly altered Cond. 3, so that it read as follows:—“The defender is presently in course of erecting a dwelling-house, &c., on said space or plot of ground immediately to the north of the pursuer's said dwelling-house; but without building a gable of his own, he has so built the side walls of his house as to cause them to abut close upon the northern gable of the pursuer's house, and has founded the end portion of said walls upon the scarcement or foundation of the pursuer's gable, which is her exclusive property, thereby wrongfully encroaching on the rights and property of the pursuer.”

The defender also amended his record so as to introduce an averment that the north gable of the pursuer's house was “built up to the verge of the northern boundary of the said area, so that the scarcement of the gable encroaches and is built on the defender's property.”

The area of ground upon which the pursuer's house stood had been sold to her husband by the defender and his wife by a disposition dated 7th November 1850, and the defender had been engaged in the building of the house erected after the purchase.

As regarded the matter of fact, the Court held that the pursuer had proved her averment. With reference to the defender's amended statement (quoted above), which he desired to substantiate by proof,

Judgment:

At advising—

Lord President—… With reference to the allegation that the pursuer encroached on the property of the defender, it is to be noted that at the time of the building nobody took any objection. The defender, who was engaged as one of the tradesmen in building the pursuer's house, took no sort of objection, although as proprietor of the adjoining land he, and he alone, had a right to object if there was anything of the nature of an encroachment made by the pursuer's husband at the time. It is nearly thirty years at all events since that was done, and during the whole of the intervening period not a syllable has been said on the part of the defender to the effect that an encroachment has been made. I am very clearly of opinion that the defender cannot at this time of day be allowed to advance for the first time an averment inconsistent with his original record in this case, and contradicted by his own conduct for all this time, to the effect that the pursuer's husband in building his house advanced the scarcement of his north gable wall so as to make an encroachment on the land remaining in the hands of the defender. Taking the matter as a demand now made to be allowed to prove as matter of fact that such an encroachment was made, I think that the Court would be quite wrong to encourage anything of the kind. I think that even if the defender could succeed in establishing some small encroachment—and the Court is dealing with inches in the whole of this matter—it would be quite impossible to allow that to receive effect after the lapse of so long a time.

I therefore take it as clearly established that the scarcement of the pursuer's gable wall is within the lines of her own property. I think that is the true import of the evidence before us.

Lord Deas and Lord Mure concurred.

Counsel:

Counsel for Pursuer (Appellant)— Guthrie Smith— Donaldson. Agents— Morton, Neilson, & Smart, W.S.

Counsel for Respondent— Robertson— Young. Agents— Nisbet & Mathieson, S.S.C.
1881