Scottish Court of Session Decisions

William Houston, dairyman, residing in Hill Street, Coupar Angus, was proprietor of a byre, the north and south wall and the roof of which rested against the east gable-wall of a house belonging to James Alexander Playfair M'Laren. In the course of certain building operations M'Laren extended his roof so that it projected 7 or 8 inches over the roof of the byre.

Houston raised an action of interdict against M'Laren in the Sheriff Court at Perth.

The defender in answer averred—“Explained that pursuer has no west boundary wall to his byre. Explained further, that the scarcement or foundation of the defender's east wall projects, and always has projected, fully 11 inches beyond the wall itself, and the new roof only projects 7 inches, or 4 inches more than the former roof projected.”

The defender pleaded—“(2) Defender's operations being within his boundary, the pursuer's crave for interdict should be refused, with expenses.”

TheSheriff-Substitute ( Grahame) allowed a proof, from which it appeared that each party had a good and sufficient title to his property, and had possessed it for more than fifty years previous to the date of the action. The defender's house had been built in 1770, but there was nothing to show whether it was built upon the extreme verge of his property or not. The scarcement stones upon which this gable-wall was founded projected 11 inches eastwards from it. The north and south walls of the byre rested upon the scarcement stones, and the walls and roof of the byre rested against the gable. The top of the scarcement stones were some inches above the floor of the byre.

Upon 11th January 1894 the Sheriff-Substitute found that the defender did not propose to project his roof beyond the boundary of his property, and refused the interdict.

Upon appeal the Sheriff ( Jameson) recalled the Sheriff-Substitute's judgment, and found (1) that the pursuer and defender M'Laren were conterminous proprietors of certain subjects in Coupar Angus, situated to the west of Hill Street; (2) that in 1892, and for forty years previous, the state of the subjects was as follows—there was an old two-storey house on the defender's property, with its east gable immediately adjoining the pursuer's property, while on the pursuer's property there was erected a building, latterly used as a byre, the walls and roof of which were built close up to and rested on the said east gable of the defender's house, and the scarcements of the foundations of said gable projected about 9 inches beyond the east face of the gable; (3) that the title-deeds of the parties merely described the properties as bounded by each other; (4) that at the date of raising the present action the defender M'Laren, whose property lay immediately to the west of the subjects occupied by the pursuer, was carrying on certain building operations in connection with the rebuilding of his house; (5) that the roof of the defender M'Laren's new house projected 7 inches or thereby beyond the line of the east face of the east gable of the defender's old house: Found in point of law (1) that the titles of the parties fell to be interpreted by the possession had twenty years prior to the raising of this action; (2) that the possession had by the pursuer and his predecessors, as above described, was sufficient in law to constitute possession of the ground up to the line of the east face of the east gable of the defender's old house, notwithstanding the projection of the foundations of said gable beyond said line, and that said line must therefore be held to be the boundary between the property of the pursuer and that of the defender M'Laren; (3) that the defender M'Laren's building operations, so far as they consisted of projections of the roof or other portions of the new house beyond the line of the east face of the east gable of the old house, constituted an invasion of the pursuer's rights of property, and that the pursuer was entitled to interdict against said proceedings: Therefore interdicted the defenders, and all others acting for them, or under the instructions of any of them, from encroaching upon the pursuers's property on the west boundary thereof, and specially from building, or continuing to build, a roof projecting over the roof eaves and side walls of the pursuer's byre, being part of the pursuer's property and subjects in the police burgh of Coupar Angus, to the west of Hill Street there, and situate said byre property and subjects between certain subjects, of which the defender M'Laren is proprietor, and Hill Street aforesaid, &c.

“ Note.—The findings in the interlocutor sufficiently explain the grounds on which I have decided this case. I have felt it to be a narrow one, and it was not without difficulty that I arrived at the conclusion I have done. I am of opinion that the projection of the scarcements of the foundation of the defender's old house beyond the line of the gable wall does not raise a presumption that these scarcements were within the original boundary of the defender's property. On the contrary, I think the presumption rather is that the defender's predecessors desired to take full advantage of their property by building the gable up to their boundary line, and this necessarily involved some projection of the scarcements into the adjoining property. I believe this to be a common practice, and I may refer to the case of Leonard and Others v. Lindsay & Benzie, 13 R. 959, as an illustration of it. This view of what was the boundary between the properties is further confirmed by the fact that when the pursuer's predecessors came to build, they built close up to the east face of the defender's east gable, and in fact

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rested their house upon that gable, and that has been the state of matters for more than forty years, and I think it constitutes possession by the pursuer and his authors of the ground up to the line of the east face of the east gable of the defender's old house for that period, and as the titles fall to be interpreted by possession, I hold that the boundary line between the two properties is the line of the east face of the east gable of the defender's old house. There is no dispute that the defender's proposed roof will project over the line, and I have granted interdict against the operations to that effect. Should this decision become final, I might suggest that this is a case in which the parties might make some reasonable arrangement for the present, reserving the pursuer's rights in future should he thereafter desire to raise the roof of his house.”

The defender appealed, and argued—There was a presumption that the scarcement stones were upon the defender's own land, because it was more likely he would keep his gable wall back a few inches from the verge of his own land rather than trespass upon his neighbour's land. The analogy which the Sheriff supposed to exist between this case and Leonard did not exist, because that was a case of two houses in a street joined together, while each house was held in this case under a separate title— Gariochs v. Kennedy, March 7, 1769, M. 13,178. Assuming, however, that the pursuer had acquired a right of property in the scarcement stones by prescription and possession, regard must be had to what he had acquired, and all that he had got was the right to rest his walls upon them; he never had used any but the extreme end ones, and so could not claim right to build his walls upon the other stones or to raise it higher.

The respondent argued—The title-deeds merely described the properties as bounded by each other. They therefore fell to be interpreted by possession. It was clear that for fifty years pursuer had possession of the ground which he now claimed. It was not a case of both parties having possession. Defender had not possession of the ground by his scarcements. The pursuer's byre was built on his scarcements, and the pursuer had possessed these for the prescriptive period, and they were now his. Pursuer had therefore exclusive possession of the ground in question. The presumption was that this possession was in virtue of a right of property, and not merely by tolerance of the defender. In any event, what the pursuer had acquired was not a servitude of support, but a right of property to the ground up to the east gable of the defender's house. The evidence further showed that it was probable that this was the original boundary, as the wall dividing the two properties, and which was built by the defender, was in a line with the gable of his house, and not with the scarcements. There was no presumption that scarcements were within the defender's property; and it was the common practice to project these into adjoining property— Leonard v. Lindsay, June 11, 1886, 13 R. 959. In any view, the complainer had had such possession as entitles him to a possessory judgment.

At advising—