Scottish Court of Session Decisions

James Waugh, farmer, South Arnloss, Stirlingshire, was heritable proprietor of the lands of Barns, which come down to the east and south edges of a sheet of water called “The Little Black Loch.” The property of Barnsmuir (which did not belong to either pursuer or defender) lies to the south and west of the sheet of water, and the property of Lochhouse, belonging to Alexander Wylie, W.S., Edinburgh, lies on its north side. This action was brought by Waugh against the proprietor of Lochhouse to have it declared that “the march or boundary between the pursuer's said lands of Barns and the defender's said lands of Lochhouse to the north of the loch called ‘The Little Black Loch’ is the march or boundary laid down and defined on the Ordnance Survey sheet herewith produced by the red line from the point marked X to the point marked Y, and formed or marked upon the ground by the five march-stones, which are marked on the said Ordnance Survey sheet by the letters A, B, C, D, E: And. .. that the said Little Black Loch shown on the said Ordnance Survey sheet is not comprehended within the marches or boundaries of the defender's said lands of Lochhouse, and that the defenders have no right, title, or interest to or in the said Little Black Loch: And further to have the defenders, and those deriving right from them, interdicted, prohibited, and discharged from troubling or molesting the pursuer in the peaceable possession and enjoyment of his said lands according to the march above referred to, or from invading or encroaching thereon in any manner of way in all time coming.”

The pursuer averred—“(Cond. 3) From time immemorial, or at least for forty years and upwards prior to March 1883, the march shown upon the said Ordnance Survey sheet, and formed by the said five march-stones, has always been recognised and acknowledged as the march between the said lands of Barns and the said lands of Lochhouse, and the pursuer and his authors and their tenants, and others deriving right from them, have possessed the said lands of Barns for the said period conform to the said march. There is not, and never within the memory of man has been, any regular fence along the northern boundary of the said Little Black Loch other than the said five march-stones.”

The defender denied these averments, and answered as follows—“Explained that the defenders, their authors, and their tenants, have from time immemorial, or at least for forty years and upwards, possessed their lands of Lochhouse as riparian proprietors on the said loch without any fence, obstruction, or hindrance whatever between their lands and the said loch. They have cultivated and grazed to the waters of the said loch, and have used the waters of the said loch for watering cattle, steeping lint, fishing, and other purposes at their pleasure without interruption or interference during the said period. There are valuable minerals under the loch, and the defenders, their tenants, and their authors have also partly wrought the minerals under the loch within their part of the solum. The stones mentioned by the pursuer are not march-stones between Lochhouse and Barns; and the effect of the new line of march now for the first time set up by the pursuer would be, as the defenders understand the pursuer's claim, to exclude the defender's lands of Lochhouse from all access to the said loch from which they are called, and which is a part and pertinent of the lands of Lochhouse as regards the shore and solum thereof ex adverso of the said lands.”

The pursuer produced the following titles—(1) A charter of alienation granted by the Earl of Linlithgow and Callander, dated 21st February 1709, in favour of John Bowie, in which the lands conveyed were described as the lands of Holehouse and pertinents, and were further described as “meithed and marched conform to a decreet of division betwixt us and our other feuars of Holehouse.” The lands were conveyed with the “haill fishing upon the Black Loch and Little Loch belonging to us.” (2) A disposition by Charles Tinker and Cornelius Bryce, the successors of John Bowie, dated 26th May 1819, in favour of Thomas Johnston, of the lands of

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Barnsmuir, in which the lands were conveyed as “All and whole the lands called Barnsmuir, being a part of that part and portion of the wester part of the lands of Holehouse now known by the name of Barns.” The lands of Barnsmuir were described as bounded as follows—“On the north partly by the highway leading from Linlithgow to Airdrie, and partly by the lands of Lochhouse; on the east, partly by the Little Loch and partly by the remaining lands of Barns, and divided therefrom by a straight line drawn from two march-stones placed at the north-west corner of the said loch straight to the bottom of the hedge on the lands of Stoneridge, which is the easter boundary of the park immediately on the east side of Stoneridge Planting, and which hedge is called Meikle Hedge; on the south,” &c. The granter reserved right to himself and his successors to build a mill and to dam up the water in the Little Loch for the supply of the mill to a height not exceeding 3 1 2 feet above the channel of the outlet therefrom, without being liable in damages.

The defender produced, inter alia, a disposition dated 13th October 1873, in which the lands were described as “All and whole that part and portion of the lands of Slamannan commonly called Lochhouse, with parts, pendicles, and pertinents thereof.”

The pursuer pleaded—“(1) The northern march between the pursuer's lands of Barns and the defender's lands of Lochhouse being the march referred to in the libel, the pursuer is entitled to declarator as concluded for. (2) The pursuer and his authors having from time immemorial had exclusive possession to the south of the said march, is entitled to decree. (3) The Little Black Loch being entirely to the south of the said march, and the defenders and their authors having had no possession of the said loch, the pursuer is entitled to declarator as concluded for. (4) The defenders having encroached upon the pursuer's property, the pursuer is entitled to interdict as concluded for, with expenses.”

The defender pleaded—“(3) The pursuer's material averments being unfounded in fact, and the prescriptive possession being with the defenders, the defenders are entitled to absolvitor with expenses.”

A proof was led, the import of which very fully appears in the Lord Ordinary's note to his interlocutor and in the opinions of the Lord Justice-Clerk and Lord Craighill.

The Lord Ordinary ( Trayner) pronounced this interlocutor—“Decerns in terms of the first declaratory conclusions of the summons, and further interdicts the defenders, and those deriving right from them, from troubling and molesting the pursuer in the peaceable enjoyment and possession of his said lands, according to the march referred to in the said declaratory conclusion, and decerns, &c.

“ Note.—The leading question in this case is whether the pursuer has established that the boundary between the lands of Barns and the defender's lands of Lochhouse is a series of march-stones alleged to have been placed round the northern end of the Little Black Loch.

The earliest title produced of the pursuer's lands is a charter of alienation granted by the Earl of Linlithgow and Callander, dated 21st February 1709, in favour of John Bowie—[ His Lordship here quoted the terms of the charter as above].

The decree of division referred to has been lost and is not forthcoming. The clause as to the fishing is somewhat ambiguous. It may be read as containing an assertion that the whole fishing in the Little Black Loch belonged to the granter, and was conveyed to the grantee, or it may be that the haill fishing so far as it belonged to the granter was conveyed. The fishing seems to be of little or no value, and the matter is not cleared by any proof of exclusive possession of the fishings. If, as the pursuer contends, the whole of the Little Black Loch was included in the lands of Holehouse, it does not appear why there should have been any separate mention of the fishings, which would have passed as a pertinent. It does not appear to me that the mention of the fishings throws much or any light on the respective contentions of the parties.

The next title which may be referred to is a disposition by Charles Tinker and Cornelius Bryce, the successors of John Bowie, dated 26th May 1819, in favour of Thomas Johnston, of the lands of Barnsmuir.—[ His Lordship here quoted as above the terms of the disposition.]

From this description it is to be inferred that the lands of Barnsmuir, from the road from Linlithgow to Airdrie eastwards, are bounded on the north by the lands of Lochhouse, and that no part of Barns lies between Barnsmuir and Lochhouse; also that two march-stones, whether they exist there now or not, had been placed at the north-west corner of the loch. It appears to me that it may be reasonably presumed that the most northerly of these two march-stones had been placed at the march between Lochhouse on the one side and Barns and Barnsmuir on the other, and further, that the reservation of a right to dam up the water of the loch indicates a belief on the part of the proprietor of Barns at the time that he was entitled to deal with the water of the loch without reference to other adjoining proprietors.

I do not think that there is anything in the pursuer's subsequent titles calling for particular remark.

There is nothing calling for particular observation in the titles of the defenders' lands, except that they are not described by boundaries. In the disposition in their favour, which is dated 13th February 1873, they are described as ‘All and whole that part and portion of the lands of Slamannan commonly called Lochhouse,’ with parts, pendicles, and pertinents thereof.

As I have stated, the disposition of 1819 suggests that two march-stones were placed at the north-west corner of the loch, and I think it probable that the stone marked A on the plan is one of these. But these stones were placed as march-stones between Barns and Barnsmuir, and not between Barns and Lochhouse, and therefore the fact that they were so placed goes no way to prove the existence of similar march-stones between Barns and Lochhouse round the end of the loch, as alleged by the pursuer.

With reference to the question whether the march-stones exist, and whether they are those specified by the pursuer and delineated on his plan, it does not appear to me to be proved

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that there is anything in the character of those stones to indicate that they are march-stones, They are the ordinary boulder stones found in the neighbourhood. They are not marked in any way as march-stones. They are, however, perhaps somewhat larger than other stones in the immediate vicinity, and they are situated, or have been placed with a certain amount of regularity, round the northern margin of the loch, or nearly so. If, however, the evidence of the pursuer's witnesses, and particularly of James Johnston, Thomas Johnston, and George Pettigrew, is to be relied on, there is no doubt that they are march-stones. It is somewhat singular, however, that if they were march-stones, that fact should not have been more generally known than it appears to have been. I see no reason, however, to disbelieve these witnesses, and I think that their evidence is corroborated by the possession which the proprietors and tenants of Barns have had of the subjects. Here, again, however, it must be remarked that the value of the subjects, above ground at least, is inconsiderable, and therefore some of the acts of possession founded are not very decisive.

There is no doubt that the proprietors and tenants of Barns have possessed and enjoyed for time immemorial—at least from 1819—a road from the Barns steading and offices to the Linlithgow and Airdrie public road. From Barns this road proceeds westwards till it reaches nearly to the outlet of the loch, at or near the point Y on plan No. 6; it then proceeds round the northern margin of the loch, immediately to the south of the alleged march-stones, to the north-west corner, until it reaches what is now recognised as the boundary between Lochhouse and Barnsmuir, at or near the point marked X on the plan, whence it proceeds along that boundary through the lands of Lochhouse to the public road.

It is maintained by the pursuer that the whole of this road was on the lands of Barns before Barnsmuir was separated from it, and that accordingly that part of it lying between the points X and Y is not a servitude road, but was then, and is now, wholly within their own lands.

It is true that that part of the road from the west side of the loch to the public road can now only be regarded as a servitude road over Lochhouse, but I do not think that that was its original character.

The titles are silent on the subject of the road. It is clear, however, that when Barnsmuir was part of Barns, the tenants of Barns would have access to the public road through their own fields, and it seems to me most improbable that they should at the same time have had a servitude road over Lochhouse running parallel with their own march. I think the evidence shows that the original march between Barnsmuir and Lochhouse ran from the stone at the doghillock on the Airdrie road westwards till it met the march running north and south between Barns and Barnsmuir.

It appears from the evidence of Hodge, who went to Barns just at the time of the sale in 1819, and of other witnesses, that there was a ‘sheugh’ along the north as well as the south side of the strip of ground along which the road now passes, and that there was then no hedge along the south side of the road. Mrs Shanks, who was born in 1818, remembers the ‘sheugh’ and she says the hedge was a little hedge when she first remembers it. The tenants of Barns may have been mistaken in supposing that the property of the strip of ground had been reserved to Barns, but in these early days they exercised rights over it—such as cutting the grass which grew on it—which would not have been permitted had it belonged to Lochhouse

The truth appears to me to be that the proprietors of Lochhouse have now acquired by prescription a right to this strip of ground, and that the road from the road westwards can only now be regarded as a servitude road. The direction in which that part of it runs between X and Y, passing round the head of the loch, can only be explained as being the best road the tenants of Barns could get through their own ground. If this be the true character of the road, it goes to support the pursuer's contention that the stones in question are march-stones. seeing that the road passed immediately to the south of these stones.

It is further maintained that the proprietors and occupants of Barns have had possession of the whole loch, and that the defenders or their predecessors have exercised no similar acts of possession.

It appears that the tenants of Barns cut pipes and grass over the whole loch wherever they grew; and, in particular, that they constantly cut grass on the north-west side as far north as the stone marked A.

As regards the matter of steeping lint, the neighbours who wished to steep lint in the loch applied to the tenants of Barns for leave to do so, and never to the tenants of Lochhouse. It is true that the best place for steeping lint was at the eastern side opposite Barns, and persons wishing to steep lint could not do so without having access through the Barns fields, and obtaining the use of turf, &c.

But, on the other hand, the tenants of Barns seem to have claimed and exercised the exclusive right to dam the loch for the purpose. There is also evidence that the tenants of Lochhouse obtained permission to steep lint in the loch in exchange for the privilege of allowing the tenants of Barns to take their carts to the public road through the Lochhouse fields. There is also evidence that in one dry season the tenant of Barns received a small sum of money, £5, from the millers on the stream leading out of the loch, for allowing the water of the loch to pass down the stream. There is also evidence that the tenant of Barns cut a sleugh or ditch into the loch in order to let the water of the loch more freely away. These acts may not perhaps be of much consequence, but they seem to be just such acts of possession as such a subject was capable of.

I do not see that there were any similar acts of possession on the part of the tenants of Lochhouse. No doubt their cattle did pasture down to the loch and drink from it, and the tenants occasionally took water from it, but that is easily explained by the fact of the good terms on which the respective tenants were, and it may be that the proprietors of Lochhouse have thereby acquired certain rights of servitude which it is unnecessary to determine in this process.

On the whole matter, therefore, I think the pursuer has made out his case.

Commencing at the west, I think that the boundary starts from the point where the boundary

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between Barns and Barnsmuir—as described in the Barnsmuir disposition—meets the southern boundary of the road leading from the loch westwards—that is, the point marked X on plan No. 6—thence in a straight line to the stone A, thence round the loch by the march-stones marked on the said plan to the stone E, and thence to the point Y. where the road from Barns crossed the outlet of the loch. If this be so, it follows that the defenders have no right to the solum of the loch within these boundaries; but I do not think that it can be determined in this process that the defenders have no right or interest in the Little Black Loch. Should they assert any right, the pursuer can then meet their claim.

The preceding interlocutor and note have been prepared by Lord Adam, who took the proof and heard the case.”

The defender reclaimed, and argued—His lands were de facto bounded by the loch. He was, then, a riparian proprietor, and the legal presumption arising from such contiguity of position was that he was entitled to as much of the loch as effeired to the extent of his lands as compared in extent with those of the pursuer on the margin of the loch. This presumption the pursuer had utterly failed to displace by proof of exclusive possession.

Authorities— Cochrane v. Minto, 6 Pat. App. 139; Scott v. Napier, 7 Macph. (H. of L.) 35; Stewart's Trustees v. Robertson, January 6, 1874, 1 R. 334.

The pursuer replied—Even assuming that the defender was entitled to the benefit of the legal presumption of contiguity of position, that presumption did not apply to the case of what was really no more than a marshy piece of water, and what was in no sense a loch. A consideration of the evidence, however, showed that the march-stones formed the true boundary of the defender's property, and that the pursuer had for the prescriptive period exercised in the loch every act of exclusive possession of which the subject was capable.