Scottish Court of Session Decisions

The lands and estate of Haulkerton, in the parish of Laurencekirk, Kincardine, which forms part of the entailed estate of the Earl of Kintore, adjoin the lands of Redford, Ravenshaw, and others in the parish of Garvock, which belong to the Dowager-Countess of Kintore and others, the trustees of the late Earl. The Earl of Kintore presented a petition under the Acts 1661, c. 41, and 1669, c. 17, and the Act 10 Geo. III., c. 51, secs. 32, 33, and 34, and other Acts relating to excambion by entailed proprietors, in which he prayed the Court to find and declare that he, being about to enclose part of the farm of Keilburn, part of Haulkerton, by erecting a fence on the march between them and the said contiguous lands belonging to the trustees of the late Earl, was entitled to insist in an action of straightening the marches, to adjudge as much of the defender's lands to the pursuer, and of the pursuer's lands to the defender, as would enable the fence to be built with advantage, and to remit to men of skill to adjust the value of the land necessary to be excambed, &c. A similar petition was also presented by the trustees of the late Earl, but craving that the march should be straightened not only between them and Keilburn but along the whole march of the two properties.

On 8th October 1884 the Sheriff-Substitute ( Dove Wilson) in respect of contingency conjoined the two petitions, and before answer remitted to Mr Walker, land valuator, Aberdeen, and Mr Mitchell, Kinross, to inspect and adjust the value of the lands proposed to be excambed, and settle the marches thereof, and to report upon oath whether the proposed exchange would be just and equal, all in terms of the statute.

On 15th November the Sheriff-Substitute made a personal visit to the lands. On 25th November 1885, the reports having been lodged, he allowed parties to lodge objections to it if so advised. The trustees lodged objections, which are fully referred to in the Sheriff-Substitute's note appended to the interlocutor which he pronounced on 26th February 1886, and which was as follows:—“Finds that it is expedient that the march-line between the lands of the pursuer in the conjoined actions and those of the defenders therein should be straightened and fenced, and approves of the report and of the accompanying plan; remits of new to the reporters to lay down by march-stones and fences, as recommended in their report, the march-line therein settled, and declares that said fence when so erected shall in all time coming be the common march between the pursuer's and the defender's lands: Finds that the portions of land to be taken from the one estate and added to the other are of equal value, and adjudges and ordains such parts of the pursuer's lands as are on the defenders' side of said march-line to belong to the defenders, and such parts of the defenders' lands as are on the pursuer's side to belong to the pursuer: Further, grants warrant to the pursuer and to the defenders to make the necessary exchange of lands by contract of excambion, and finds and declares that the said contract on being recorded in the Books of Court within three months after the date of execution thereof shall be effectual to all intents and purposes, and that the land given to the pursuer in exchange for the land excambed by him shall be held to be a part of the entailed lands and estate of Haulkerton, and shall be subject to all the prohibitory, irritant, and resolutive clauses of the entail of said lands and estate in the same manner as if it had been originally a part of the said lands and estate, and that the land given by the pursuer under said contract of excambion shall after the date hereof be held as out of the said entail, and be liberated from all the prohibitory, irritant, and resolutive clauses thereof, and decerns.

“ Note.—The objections which have been stated by the defenders at the latest stage of these proceedings to the march-line which was laid off by the reporters, with my concurrence, are contradictory of their previous position. In their defences they maintained successfully that the whole boundary between their lands and the pursuer's fell to be rectified, and that operations could not be limited in the way the pursuer proposed to a single farm, but at the inspection they agreed with the other party in asking that the boundary should not be laid out in one straight line from end to end of the two estates, but that it should be laid out so as to make no further alterations than were expedient upon the existing fields through which the existing march ran as an undefined line. After hearing the views of the parties and of the reporters I was satisfied that to act on the proposed principle would give the best boundary, and I thought that so long as the unevenness of the march was rectified, and a good ine for fencing obtained, there was nothing in the statutes to prevent its adoption. I have no doubt that it would have been possible to have adopted the other principle, and by disregarding

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the existing divisions of the land make a nearer approximation to a straight line from end to end, but there would have been obvious inconveniences. Were another principle now to be adopted everything which has been done in the process since the record was closed would have to be thrown away and commenced of new, and whatever powers a higher Court may possess I do not conceive that I can pronounce any order involving any such result.

The objections stated by the defenders are all referable either to the principle upon which the boundary line has been laid out, or to things over which I have no control. Had any objections been stated to the effect that a mistake had been made at any particular part of the march-line, and had any suggestion been offered for amending it, or had it been said that any mistake had been made in valuing the parts to be excambed, I would have been ready to consider it. The complaint that the new line of march leaves the defenders' lands without houses is one which the Sheriff cannot remedy. The defenders' lands have no houses at present, and no rectification of marches could take one of the pursuer's steadings and give it to them. The defenders' complaint as to the mill-dams is a complaint against a benefit done to them. For things which can be of no use to them till water can run uphill they have got an equivalent of useful land.

One of the defenders' objections seems to point to the boundary having been uncertain before the present proceedings commenced. If that had been so the defenders should have raised that point by declarator, and have had it settled before the inspection took place. At the inspection all parties concurred in holding that the existing line of boundary was known and settled.”

The trustees appealed, and argued—The Sheriff-Substitute had not proceeded in terms of the Act. His duty was to have laid down a line which was straighter than before, instead of which the line he had directed was really more irregular than the former one. Further, he had acted ultra vires in directing the transference of pieces of ground so considerable in size from the one party to the other. In short, he—and the two reporters seemed to have agreed with him—proceeded as if the purpose of the Act was to lay off a new march-line which would on the whole be more convenient to both parties, instead of simply to make the march-line straighter than formerly. Even if that had been the object of the Act, the new line would prove very much more inconvenient to the trustees than the old— Lord Advocate v. Sinclair, November 26, 1862, 11 Macph. 137.

The pursuer was not called upon.