Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Glasgow by the marriage-contract trustees of Mr and Mrs Joseph Jeremiah Cooper, against the testamentary trustees of the late James Stark, sometime residing at Barwood, Gourock. The pursuers prayed the Court to find and declare that the defenders had no right or title to any part of certain ground lying within the territory of the burgh of Glasgow, with the exception of a certain “stone tenement” at the corner of Argyle Street and Brown Street, to ordain the defenders to flit and remove from a portion of said piece of ground situated at the back of said “stone tenement” upon which they had erected a saloon, and to take down and remove said building, or

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otherwise to grant warrant to the pursuers to take it down and remove it, and to interdict the defenders from erecting any buildings upon any part of said piece of ground.

The question in the case was, whether the defenders as proprietors of the “stone tenement” had a title in such terms as to enable them by prescriptive possession to acquire right to the back ground above mentioned.

The pursuers' property was described as follows in their title “All and whole these two lots or pieces of ground consisting of eight hundred and five and one-half square yards or thereby being lots numbers thirty-first and thirty-second laid off for building of that park or enclosure containing nine acres one rood and ten falls or thereby of ground known by the name of Brownfield acquired by John Brown junior and Robert Carrick merchants in Glasgow from the Principals and Professors of Glasgow College lying within the territory of the burgh of Glasgow in that part called the Broomielaw and immediately to the west of the lands now or lately belonging to the Delftfield. Company in Glasgow which lots are bounded on the north by the road leading from Glasgow to Anderston along which they extend fifty-four feet and one-half foot by that street running through the said ground called Brown Street on the east along which they extend one hundred and nine feet and one-half foot by that lot number thirtieth on the south along which they extend eighty-one feet and by lots numbers thirty-third and thirty-fifth on the west along which they extend one hundred and fourteen feet with free ish and entry thereto by the foresaid road or street: Together with a brick tenement and offices next to the west boundary and a stone tenement and offices fronting Brown Street erected by David Reid wright in Glasgow on said two lots of ground and together also with the whole other houses and buildings erected on said subjects whole parts and pertinents thereof, But excepting from the subjects conveyed by said disposition that large stone tenement fronting the road leading from Glasgow to Anderston situated on said two lots and sold by the said David Reid to several purchasers.”

The “road leading from Glasgow to Anderston” is now known at the place in question as Argyle Street.

In the “stone tenement” erected by David Reid there were six “lodgings,” two on each flat, with corresponding sunk cellars, and these lodgings were disponed by him to various purchasers. The lodgings were distinguished as the eastmost of the first flat, the westmost of the first flat, the eastmost of the middle flat, the westmost of the middle flat, the eastmost of the third flat, and the westmost of the third flat.

The defenders' trustee became vested in all the “lodgings” and relative cellars, offices, and others in 1855 under an instrument of sasine in his favour recorded 27th November 1855. This deed was not printed, but it was admitted that the description of the property was identical with that contained in the defender's own title, which was a notarial instrument recorded 19th March 1890 following upon their trustee's sasine and deed of settlement.

In this deed the description was as follows:—“All and whole that lodging being the eastmost of the middle flat of that stone tenement of land covered with slate in Brownfield lately built by David Reid wright in Glasgow, consisting the said tenement of cellars in the sunk storey and three square storeys which lodging consists of a kitchen and three rooms together with two cellars in the sunk storey which cellars are situated on the south-east corner of that storey and which cellars are of the following dimensions namely eight feet long by seven and one-half feet wide with free ish and entry to the said lodging and pertinents by the common staircase of the tenement and from the street called Brown Street by a passage or entry leading into the said staircase, together with the whole parts pertinents and privileges of the said lodging.” (Then followed a description of each of the other five “lodgings” in similar terms, mutatis mutandts)—“And also the whole dung and fulzie of the said tenement and of the tenement built on the formerly vacant steading of ground fronting Brown Street, which dung and fulzie shall be carried to the common middenstead of the said tenement and shall be the exclusive property of the successors of the deceased James Russell, sometime grain merchant in Glasgow thereafter portioner Brownfield Glasgow and residing at Hillside Partick near Glasgow, in all time coming, with free ish and entry to the said lodgings and pertinents by the common staircase of the tenement and from the street called Brown Street by a passage or entry leading into the said staircase, together with the whole parts pertinents and privileges of the said lodgings, which tenement containing the subjects above described fronts the public street from Glasgow to Anderston and is built upon a part of All and whole these lots or pieces of ground number thirty-one and number thirty-two laid off for building of that park or enclosure called Brownfield, acquired by John Brown and Robert Carrick, merchants in Glasgow, from the Principal and Professors of Glasgow College, lying within the burgh of Glasgow in that part called Broomielaw immediately to the west of the lands belonging to the Delftfield Company, together with the whole parts pendicles privileges and pertinents of the said several subjects.”

A plan was prepared, upon which the whole subjects described in the pursuers' title, including the “stone tenement,” were shown as existing in 1897 before the present action was raised. This plan showed a building which was in shape a rectangular parallelogram, with one of its longer sides facing Argyle Street on the north, and one of its shorter sides facing Brown Street on the east. Its longer sides were about 56 feet, and its shorter sides about 30 feet in length. This building was admitted to be the property of the defenders. The

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remainder of the ground shown on the plan was occupied as follows:—(1) By two blocks of buildings and a court which were situated upon the southern part of the ground, and extended over nearly two-thirds of the whole area, and which were admittedly the property of the pursuers; and (2) by the piece of back ground now in question. This piece of back ground was occupied, as shown on the plan by (1) a close, (2) an area, (3) a round building containing a stair projecting from the back or south side of the rectangular building first above mentioned, (4) a wash-house, and (5) a back saloon. The close was about 6 feet wide, and about 17 feet in length, and ran from Brown Street between the wall of the rectangular building belonging to the defenders and the north wall of the most easterly of the two blocks of buildings belonging to the pursuers. Beginning from the west end of the close, the back ground in question was bounded as follows:—(First) by the wall of the last-mentioned block of buildings, which then ran southwards for a distance of about 11 feet; (2nd) by the wall of the same block of buildings which then ran westwards for a distance of about 12 feet; (3rd), by the wall of the same block of buildings which then ran southwards again for a distance of about 9 feet; (4th) by a “division wall” running westwards for a distance of about 15 feet, and separating the back ground in question from the court above mentioned belonging to the pursuers; and (5th) by the north wall of the westmost block of buildings belonging to the pursuers.

The “back saloon” was erected about the year 1864 on the back ground behind a shop occupying the westmost part of the ground floor of the rectangular building belonging to the defenders, and was used by the tenant of that shop as a workshop.

It was ultimately conceded that for more than the prescriptive period the defenders and their predecessors had by their tenants in the property at the corner of Argyle Street and Brown Street occupied the ground at the back of that property (being the ground now in question) and the erections thereon, and that all the back ground and the erections thereon had been occupied and used by the defenders' tenants without interruption on the part of the pursuers or any other person.

There were no windows in the blocks of buildings belong to the pursuers above mentioned which looked on to the back ground now in dispute, and there was no access from it to them or to the court belonging to the pursuers.

The instrument of sasine recorded 15th October 1798 in favour of Thomas Sten-house, who was the original disponee of two of the “lodgings” in the “stone tenement,” and consequently one of the defenders' authors, contained the following clauses:— (After the description of two of the “lodgings”)—“as Also the whole dung and fulzie of the said tenement to be built on the vacant steading of ground fronting Brown Street so soon as the same is built, which dung and fulzie shall be carried to the common middenstead of the said tenement and shall be the exclusive property of the said Thomas Stenhouse or his foresaids in all time coming. But the dung of the back brick tenement lately erected by the granter at the back of the said steading is by the said disposition wholly reserved to himself and the said dung is thereby conveyed to his said disponee upon condition that he shall keep the common close and area behind the said tenement clean and shall take out and remove the dunghill at proper times at his own expence. So that the same shall be always fit for the reception of the dung and ashes of the other subjects attached thereto, together with free ish and entry to the said lodgings and pertinents by the common staircase of the tenement, and from the street called Brown Street by a passage or entry leading into the said staircase, together with the whole parts pertinents and privileges of the said lodgings which are so disponed with and under the following burdens and reservations which are appointed to be engrossed in the Instrument of Seisine to follow on the said disposition and in all the subsequent conveyances and infeftments, viz. first the said Thomas Stenhouse and his aforesaid shall be subjected to one-third of the expence in keeping in repair and upholding the common staircase of the said tenement, and in case that the granter or his aforesaid or that the major number of the said proprietors of the said tenement and of the granter's other adjoining property should judge it necessary to sink a well with a common pump and covering in the area behind the staircase aftermentioned, the said Thomas Stenhouse and his aforesaid shall have a proportionable part of the expence of forming erecting and keeping in repair the said well with the other proprietors corresponding to the rental of his and their several properties, the water of which well shall be common to him and to the other proprietors for domestic uses only. Secondly the said lodgings are disponed with and under the burden and reservation of full power liberty and privilege to the granter or his aforesaid to build at any time a tenement fronting Brown Street leaving an entry or passage from Brown Street of four feet and one-half foot wide and from ten to twelve feet high by the back or south side wall of the said tenement already built and to use the vents already inserted in the north wall of the tenement already built for the use of the said intended tenement and to join these two tenements from the front of Brown Street backwards 17 feet wide, being the width of the intended tenement without the side walls where these tenements are intended to join each other, and the said north wall in which the said vents are inserted so far as the said two tenements will join each other shall be be a mean and common wall to both tenements.”

The instrument of sasine recorded 2nd September 1796 in favour of William Hunter, the original disponee of one of the “lodgings,” and consequently one of the defender's authors, among other “burdens and reservations” contained the following

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clause—“(First) The said William Hunter and his aforesaid shall be bound and obliged to carry the whole dung and ashes of the said lodging to the common dunghill to be erected by the said David Reid, with brick walls behind the said tenement, and which is thereby subjected with the servitude of receiving the same, and the said dung and ashes shall be the property of the said David Reid and his aforesaid.”

The pursuers averred—“About 25 years ago the defenders or their authors surreptitiously covered over a portion of the back ground behind said corner tenement, and have since been in occupation thereof, but they have no title to the same.”

The nature of the other averments and contentions of the parties sufficiently appears from the notes of the Sheriff and the sheriff-Substitute.

The pursuers pleaded—“The ground in question being the property of the pursuers, and the defenders having taken possession thereof and erected buildings thereon, the pursuers are entitled to decree of declarator and interdict as craved.”

The defenders pleaded—“(3) The ground in question being the property of the defenders, held under a valid and sufficient title, the defenders are entitled to absolvitor, with expenses. (4) The defenders' right and title to the ground in question has been established by prescriptive possession.”

By interlocutor dated 12th May 1897 the Sheriff-Substitute ( Balfour) before answer allowed the defenders a proof of their averments and to the pursuers a conjunct probation.

Note.—[ After stating the facts as above set forth]—“The pursuers maintain that they are vested in the whole property except the tenement fronting Argyle Street, which they say does not include back ground; and the defenders, on the other hand, maintain that since the year 1789 the defenders' buildings have occupied the whole ground to the north of the division wall shown on the plan, with the exception of a strip of ground used as an access to certain portions of the tenement, and that all the ground within the boundaries coloured red belongs to them.

It is maintained for the pursuers that the defenders have no title to anything but the flats in the front tenement, and that that is equivalent to a bounding title, and beyond the boundaries of the flats they cannot acquire any ground whatever under the clause of parts and ‘pertinents’ in their titles. It will be observed that the description of the flats is quite general and contains no boundaries or measurements, although the dimensions of the cellars are given; and this is not the usual kind of title known as a bounding title. In an ordinary bounding title the lands are described by their boundaries or limits or the lands are defined on a plan, and it is quite clear that where lands are so described or defined the effect is to confine the disposition to what is within the boundaries. But in this instance we have no description of boundaries, and we have no plan. The contention of the pursuers is that the description in the title is so well defined that it is equivalent to a bounding title. In other words, the lodgings are small houses in a front tenement bounded by walls, floors, and roofs, which are distinct holdings, and which exclude all outside of them. But the defenders aver that from 1789 to 1840 their buildings covered all the ground lying to the north of the division wall already referred to, with the exception of the foresaid strip of ground, that in 1840 the property was reconstructed, and does not now correspond with the description in the titles, and, in particular, that portions of the tenement, used as dwelling-houses and appurtenances since 1789 on the ground now occupied by the saloon were demolished, and that between 25 and 30 years ago the defenders' author again covered the ground with the saloon in question, and they allege that they and their authors have been in possession of the whole tenement of ground and buldings for more than a century.

In dealing with these averments the difficulty which presents itself is that, even supposing that it could be held (and at present I cannot go the length of holding it) that the defenders' title is a bounding title, the question remains to be determined, what did the flats conveyed to the defenders consist of? Did they consist solely of six houses in the front tenement, or did they or any of them physically include the ground occupied by the back saloon? And under the circumstances I am not prepared to hold, in the face of the defenders' averments, that, having regard to the general description of six lodgings occupied as flats, the defenders have only right to the building presently fronting Argyle Street, without any right to the back ground. The onus is on the defenders to establish that the flats or some of them as a matter of fact included the back ground, and also to prove their possession for the prescriptive period of the back ground, so as to give them right to it as part and pertinent of the front tenement if it be ultimately found that the title is not a bounding one, and I have accordingly allowed a proof to the defenders of their averments as to the character and extent of the buildings in 1796, and as to the various alterations made on the buildings between that year and the present date, and also as to the possession had by them since 1796.”

The defenders appealed to the Sheriff, who on 10th July 1897 issued the following interlocutor:—“Having heard parties' procurators, and considered the case: Recals the interlocutor appealed against: Finds that the defenders' title is not a bounding title so far as regards the southern boundary, and that the title includes a conveyance of parts and pertinents: Finds, with reference to the averments on record, that it is necessary for the defenders to establish by proof prescriptive possession of the ground which they claim as falling under their title; Therefore allows a proof on that point, in which the defenders will lead, and remits to the Sheriff-Substitute to take the

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same and for further procedure.

Note.—It is a vital question in this case whether the title of the defenders is or is not a bounding title. In some respects it is no doubt a bounding title. Thus the property is described as bounded on the north to the extent of a specified number of feet by the road leading from Glasgow to Anderston. But the important question is whether it is a bounding title so far as the southern boundary is concerned, as it is on that side that the defenders desire to extend their new premises, and to which the conclusions of the action are directed. The Sheriff-Substitute gives in his note an excerpt from the title to one of the flats in the defenders’ building, which is a fair specimen of the titles to the different flats of the property, of which the defenders are now the sole proprietors. An ingenious argument, with which I was at first impressed, was addressed to me on behalf of the pursuers, to the effect that the title is a bounding title, in respect mainly of the use of the expression ‘that stone tenement of land’ as denoting the subject of conveyance, and also of the conveyance imposing certain obligations on the disponees of the different flats with reference to a well and a dunghill on the ground or area to the south. I do not think that the use of the expression ‘that stone tenement of land’ is sufficient to define the boundary in the manner essential to a bounding title. As regards the obligations referred to, the argument put forward was to the effect that they operated to show an intention on the part of the disponer to reserve the property in the ground to himself, and that the intention was to limit the right of the disponees strictly to the ‘stone tenement.’ On consideration, I do not think that that argument should prevail. Apart from the absence of any definite specification of the places where the well and dunghill are to be placed, there is nothing in the title to prevent an extension by the disponees of their occupation southwards, or the effect of a prescription on a possession by them of the ground to the south of the stone tenement. Each of the different titles to the flats bears to be ‘with the whole parts, pertinents, and privileges of the said lodging.’

It appears from article 4 of the pursuers' condescendence that more than twenty years ago the defenders or their authors ‘surreptitiously’ (as it is put) covered over a portion of the back ground to the south, and have since been in the occupation thereof, although it is averred that the defenders have no title to the same. Whether the portion so occupied includes all the ground which the defenders claim, and whether the nature of the occupation has been such as would suffice for the purposes of a prescriptive title, may require proof. A proof, therefore, to clear up these points has been allowed, in which the defenders will lead.”

A proof was accordingly led. The facts established, in so far as not narrated supra, sufficiently appear from the Sheriff-Substitute's note, infra.

On 27th November 1897 the Sheriff-Substitute issued the following interlocutor:— “The Sheriff-Substitute having considered the cause, Finds that since at least the year 1840 the defenders have, by their tenants in the property at the corner of Argyle Street and Brown Street, occupied the ground at the back of that property and the erections thereon: Finds that the ground and erections were all enclosed by a high wall, and the erections consisted of a row of cellars, afterwards occupied as a store, and of an ashpit and washing-house and privy used in common by the tenants of the. property: Finds that the area within which these erections were situated was first enclosed by an iron gate and afterwards by \a wooden paling and gate, and the keys of the gate were kept by John M'Simon, who had the grocer's shop at the corner, and by his successor in the shop: Finds that in or about the year 1864 a saloon was erected on the back ground behind the shop of John Ferguson, one of the defenders' tenants, who occupied the saloon as a workshop: Finds that all the background and erections thereon have been occupied and used by the defenders' tenants without interruption on the part of the pursuers or any other person: Finds, therefore, that under the clause of ‘parts and pertinents’ in their title, the defenders having been in the sole and uninterrupted possession of the back ground and erections for longer than the prescriptive period, must be held to be the proprietors thereof, and the pursuers are not entitled to interfere with them in their use and occupation of the ground: Therefore assoilzies the defenders from the conclusions of the action, and decerns: Finds the pursuers liable to them in expenses,” &c.

Note.—“The proof clearly establishes that the defenders, since 1840 at least, have been in the sole and uninterrupted possession of the back ground and erections thereon. A large number of witnesses have been examined on the subject, and they testify, without any substantial disagreement, to the description and character of the subjects, and to the possession enjoyed by the defenders’ tenants. The subjects were a row of coal cellars, converted into a store, with a wash-house, ashpit, and privy, and a saloon behind Ferguson the tailor's shop. M'Simon occupied the store. The tenants used the wash-house, ashpit, and privy in common, and Ferguson used the saloon. The pursuers did not controvert this evidence, and their only witness on the subject of possession was John M'Lachlan, the butcher, who admits that the ground at the back was walled in on all sides, and in entering from the close in Brown Street there was a paling and gate on the left hand, and the gate was generally locked, and he climbed it when a boy to get into the back ground. He says that the back ground was exclusively possessed by the shopkeepers of the corner property, and he never knew of the tenants in that property being disturbed by outsiders. There can, therefore, be no doubt as to the possession of the subjects enjoyed by the defenders

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and their tenants, and the pursuers have not attempted to set up any title of their own to the back ground by way at least of possession, and the alleged ‘surreptitious’ covering over of the back ground by the defenders has certainly not been proved.

The pursuers, however, at the last debate, maintained their position on grounds which were different from those previously submitted to me. In place of contending that the description of the subjects in the title as small lodgings in a tenement bounded by walls, floors, and roof, were tantamount to a bounding title, they maintained that the southern boundary was now by the proof shown to be the back wall of the defenders’ tenement, and that this constituted the defenders’ title a bounding one. They referred to two cases— Reid v. M'Coll, 7 R. 84, and Dalhousie's Tutors v. Locklee, 17 R. 1060. The rubric of the first case is that where a property in a town is described in the titles as bounded by ‘the lands of A,’ and it is possible to identify by proof the ancient march, it was held that the title was a bounding title and that the proprietor could not prescribe a right to ground beyond the line known to have been the boundary, The circumstances of the case shortly were that the pursuer and defender were coterminous proprietors. The ground in dispute was immediately behind the pursuers ground and yet the defender claimed it. The defender's ground was to the west of the pursuer's, and his boundary to the east was ‘the lands belonging to the heirs of Daniel Drummond’ represented by the pursuers. There was an old division-wall running from the western gable of the pursuers’ tenement to the Roman Road, and there was a series of march stones in a line parallel to the wall in question which formed the pursuers’ eastern boundary. That wall and the march stones enclosed the disputed ground, and it was held that the existence of the wall and the march stones identified the boundary between the parties and constituted the defenders’ title a bounding title. That seems to me to be a different case from the present, because the subjects conveyed in the present case are six lodgings and relative cellars and offices with parts and pertinents. The southern boundary is said to be lot No. 30th, and there is no evidence as to what that lot consists of, but neither is there anything to indicate that the back wall of the tenement is the boundary. It is competent in the case of a general description of a boundary, such as ‘the lands of A,’ to prove (as in Reid's case) that the actual boundaries are by way of a division-wall and march stones, because that explains the general description of the boundary of ‘lands.’ But if a man possesses a tenement or lodging with parts and pertinents, the back wall of the tenement cannot be held to be the boundary so as to prevent him acquiring as parts and pertinents an area of ground behind the tenement which is separated by walls from the next tenement. In other words, the back wall of a tenement does not bound the subjects in the sense that a division wall and march stones constitute a boundary of ‘lands.’ The owner of a lodging or tenement with parts and pertinents without any more limited definition or description, is obviously entitled to acquire right to an adjoining area detached and enclosed from the next property, he having occupied the area for the prescriptive period, and the fact of his lodging having a back wall does not prevent him from acquiring the area. But the owner of subjects bounded by ‘the lands of A’ is not entitled to extend his proprietorship beyond the ascertained line of the adjoining lands. The two cases appear to me to he entirely different.

The other case of Dalhousie's Tutors does not apply to the present case, as it has no connection with a bounding title but with the evidence competent to explain the meaning of a presbytery's decree quoad the excambion of a glebe.”

The pursuers appealed to the Court of Session.

After having heard counsel for the parties and made avizandum, their Lordships of the Second Division, by interlocutor dated 11th March 1898, appointed the cause to be argued before the Judges of the Second Division, with the assistance of three Judges of the First Division, upon the plea-in-law for the pursuers, and the third and fourth pleas-in-law for the defenders.

Argued for the pursuers and appellants— The defenders had no title even to the whole of the ‘stone tenement,’ but only to specified portions of it. They had no title to the solum of the ‘stone tenement.’ This was a bounding title. Where from the deed itself, or from something referred to in the deed, or by proof other than proof of possession, it was possible to fix the boundaries of the grant without proof of possession, the title was a bounding title, although no particular boundaries were specified— Stewart v. Greenock Harbour Trustees, January 12, 1866, 4 Macph. 283, per Lord Ardmillan at p. 284; Darroch v. Ranken, December 9, 1841, 4 D. 219; North British Railway Company v. Magistrates of Hawick, December 19, 1862, 1 Macph. 200, per L.P. M'Neill at p. 203; North British Railway Company v. Hutton, February 19, 1896, 23 R 522; Retd v. M'Coll, October 25, 1879, 7 R. 84. Here what was conveyed was “lodgings” in a “stone tenement covered with slate,” with cellars (the cellars being described by measurements). A stone tenement covered with slate was a thing which was bounded by four walls and a roof. The boundaries of the grant could be easily ascertained without proof of possession although no boundaries were given. Upon such a title it was not possible for the defenders to acquire anything which was outside the walls of the tenement or the cellars, and consequently they could have no right to the back ground in question. As to the law on this question in the case of flatted tenements, see Watt v. Burgess’ Trustee, March 19, 1891, 18 R. 766, a case which showed that Lord President Inglis’ dissent in Taylor v. Dunlop, November 1, 1872, 11 Macph. 25, was well founded.

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The clause of parts and pertinents would not enable the defenders to acquire anything beyond their boundary, and indeed even where the title was not a bounding one the clause of parts and pertinents did not add anything to the grant. A grant of the lands of A was just as extensive as a grant of the lands of A with parts and pertinents— Gordon v. Grant, November 12, 1850, 13 D. 1, per L.J.-C. Hope at p. 7. The servitudes given over the back ground were inconsistent with the idea of the defenders having any right of property in that ground. It was absurd that the defenders should have a right of ish and entry over ground which was their own property.

Argued for the defenders and respondents—A conveyance of a flat or part of a flat with parts and pertinents was not a bounding title. There was nothing to prevent the holder of such a title from acquiring right by prescriptive possession to ground used as a pertinent of the “lodging” conveyed. Moreover, here the title upon which the defenders founded embraced the whole tenement. Although de facto a house was bounded by walls, there was nothing to prevent the holder of a title to a house with parts and pertinents, where the title said nothing about boundaries or measurements, from acquiring garden or back ground used in connection with the houses by prescriptive possession. See Magistrates of Perth v. Earl of Wemyss, November 19, 1829, 3 Ross's Leading Cases (Land Rights), 442. Here there were no boundaries or measurements or plan, and there were no materials for ascertaining the boundaries exactly. Prescriptive possession of the back ground as a pertinent of the tenement had been proved. The back ground had never been used as anything else since the stone tenement had been built, and never could have been. The pursuers had no access to it, and no windows even looking on to it. In the title right was reserved to build 17 feet back from Brown Street, which showed that the ground behind that was meant to go with the tenement. The so-called servitudes were really restrictions imposed upon the disponees of the lodgings in the use of the back ground. The cases quoted by the pursuers were not in point. In Stewart v. Greenock Harbour Trustees, cit., two boundaries and measurements and dimensions were given so that the boundaries could be exactly ascertained. In Darroch v. Ranken, cit., two boundaries were given, and measurements from which the others could be fixed. In North British Railway Company v. Magistrates of Hawick, cit., the dimensions were given, and a plan was referred to upon which the ground conveyed was coloured red. In North British Railway Company v. Hutton, cit., measurements were given and a plan was referred to on which the ground conveyed was delineated and coloured red. In this case there was no such materials for ascertaining the boundaries as in the cases cited. The case of Watt v. Burgess' Trustee, cit., was not to the point. It related to the rights of the several proprietors of flats in one tenement inter se.

At advising—