Scottish Court of Session Decisions

General Graham of Wyseby brought an action in the Sheriff Court of Dumfries against Colonel Irving, proprietor of the adjoining estate of Bonshaw, to have it declared “that the defender, as proprietor of the said lands of Bonshaw, which march with and are bounded by the pursuer's said lands of Wyesby, is bound to concur with the pursuer in erecting a march fence where none at present exists, and in repairing or renewing the existing fences along the whole line of the said march, with suitable weirs or water-gates thereon, so as to secure and preserve the access by both parties to the Water of Kirtle, which is on the said line of march, and to pay one-half the expense thereof.”

By the Act 1661, c. 41, it is provided as follows:— “That where enclosures fall to be upon the border of any person's inheritance, the next adjacent heritor shall be at equal pains and charges in building, ditching, and planting that dyke which parteth their inheritance.”

Colonel Graham lodged defences in which he made the following averments:— “(Stat. 9) The pursuer's contention that defender must join in fencing the pursuer's land for its whole course opposite Bonshaw is illegal and unreasonable, and contrary to the custom along both banks of the Kirtle. That custom is, that where a proprietor has grass land along the river, he fences that land from the river at his own expense, or herds the cattle thereon, and when he has land in plantation it is left unfenced. That custom exists, inter alia, on Wyseby, Bonshaw, Robgill, and Woodhouse. It is convenient, and works no hardships to anyone.”

The defender pleaded, inter alia— “(3) The fence sought by pursuer not being a march fence in the sense of the statute, the action ought to be dismissed with expenses. (5) The properties being separated by an important stream, and the medium filum being their boundary, the defender is not bound to join in fencing pursuer's land, and ought to be assoilzied. (6) A fence between the estates, such as prayed for, being impossible of erection without material change

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on the method of possession, and the pursuer having failed to adduce the authority and crave for the steps necessary, the action ought to be dismissed.”

On 11th March 1898 the Sheriff-Substitute ( Campion) remitted to the Rev. John Gillespie, LL.D., minister of Mouswald, to report on the following points:—“(1) As to the width and character of the Water of Kirtle, so far as it forms the march between the estates of Wyseby and Bonshaw, and whether said water of Kirtle forms a sufficient barrier against trespass by cattle crossing from one side of the river to the other; (2) the nature and character of the banks and land on both sides of the Water of Kirtle, so far as it forms the march between said estates, and to what extent the banks and land form a natural barrier against such a trespass; (3) whether a fence or fences can be constructed along the margin of the Kirtle either wholly on one side, or partly on the Wyseby side and partly on the Bonshaw side with a crossing or crossings of the water also fenced, and with convenient watering-places for stock without involving material alteration in the possession; and (4) the description of fence or fences recommended, if any, with the probable cost of the same; also whether, in the opinion of the reporter, the same, if constructed, would be for the mutual advantage of the estates of Wyseby and Bonshaw.”

Dr Gillespie lodged a report, in which he stated that the bed of the stream was from 30 to 45 feet wide; that at several places it did not form a sufficient barrier to prevent cattle crossing from one side to the other, though at others the banks were sufficiently steep to form a natural barrier, and that fences could be constructed along the margin of the Kirtle, partly on one side and partly on the other, with crossings of the water also fenced, and with convenient watering-places for stock without involving material alteration in the possession.

On 21st June 1898 the Sheriff-Substitute pronounced the following interlocutor “Finds (1) that the pursuer's lands of Wyseby are separated from the pursuer's lands of Bonshaw for a distance of 1078 yards or thereby by the Water of Kirtle, the medium filum of the said stream being the boundary between the two estates; and (2) that the Water of Kirtle is a shallow stream which does not form a sufficient barrier against trespass by cattle crossing from one side of the river to the other: Finds that in the circumstances of the case as appearing from Dr Gillespie's report, the Act of 1661 is applicable to the case, and that the pursuer is entitled to obtain the construction of a fence which shall serve as a march between the properties of the pursuer and the defender: Therefore repels the pleas-in-law stated for the defender, in so far as these have not already been disposed of, and decerns,” &c.

Note.— “The pursuer and defender are proprietors of the lands of Wyseby and Bonshaw, which are for a distance of 1078 yards separated by the Water of Kirtle, the medium filum of said stream being the boundary between the two estates.

Now, I think it clear that the Water of Kirtle is a shallow stream, insufficient for the greater part, if not practically for the whole, of the 1078 yards to form an effectual barrier against the trespass of cattle crossing from one side of the water to the other. It may be and no doubt is the case that at certain parts the banks of the river rise abruptly from the stream, and are at those parts so steep as to form a barrier against trespassing cattle. But granted that cattle once get into the stream, there exists even then no complete protection against cattle gaining access to the lands on the opposite side. It is not disputed that questions of trespass have arisen in the past, though these may have been settled by mutual concession and arrangement, and must inevitably do so again in the future unless some effectual fencing is provided.

The question is, whether in the circumstances this is a case where the Act of 1661 is applicable, and pursuer entitled to have defender ordained to be at equal pains and charges with him in the erection of a march fence. Having carefully considered Dr Gillespie's report—and at the request of the agents gone over the ground that I might fully understand the same—I am of opinion that it is. In the report four stretches of fencing are recommended, with two fences crossing the water, comprising in all 570 yards of fencing for the 1070 yards the stream forms the boundary between the two estates. The whole probable cost of the fencing recommended will probably only amount to £49, and the reporter is of opinion that the fences recommended, without involving material alteration in possession would be for the mutual advantage of the estates of Wyseby and Bonshaw. The fences recommended are partly on one side of the stream and partly on the other, with convenient watering-places and two fenced crossings. I do not understand that the agents now contend that if a march fence is to be erected, this is not a more satisfactory and economical mode of carrying out the work than to erect a fence down the centre of the stream, even if this be practicable. But I have appointed parties' agents to meet with me, as if we once get the question whether there is to be a march fence or not disposed of, they may prefer and be able from the suggestions in Dr Gillespie's report to adjust the details of its erection.”

The defender appealed to the Sheriff ( Lees), who on 18th October 1898 adhered to the interlocutor of the Sheriff-Substitute.

Note.— “The estates of the two parties are separated by the Kirtle, and as the stream is shallow and easily accessible at various parts, cattle from either side have at times crossed it and trespassed on the lands opposite. The defender, who apparently was the greater sufferer in this way, applied for and obtained an interdict against the continuance of this annoyance, and the pursuer now asks that his neighbours be ordained to join in the construction of a march fence between their estates. The Sheriff-Substitute remitted to the Reverend Dr Gillespie of Mouswald to examine the

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subjects, and report on certain specified points. The remitee has given in a very clear report, and the Sheriff-Substitute, having heard parties on it and on the cause, has repelled the defender's pleas. Against this judgment the defender appeals, and he pleads that he is entitled to a proof as to his averments, as to (1) the custom in regard to fencing between the two estates and in the neighbourhood; (2) the fact of whether the erection of a march fence would be of advantage to him as well as to the pursuer; and (3) whether it would be possible to erect a fence such as is proposed. He contends that the interlocutor of 21st June is actually or virtually a refusal of proof, and therefore appealable. I take the case on this footing. I think the defender's averments as to custom, and as to the removal of the hedge on the pursuer's side are too vague to remit to probation, and his plea that the fence would not be of mutual advantage is negatived by his own pleadings and also by Dr Gillespie's report. It is obvious that the erection of a fence between the estates at various places, as specified in the report, would certainly be of mutual though not of equal advantage to the parties. But it is not necessary that it should be of equal advantage to them; it is sufficient if it is of mutual advantage to a material extent. The question that then arises is, whether the Sheriff-Substitute is entitled to dispose of the case without proof by the parties? I think the course he proposes to take is countenanced, if not expressly sanctioned, by authority. By the 10th section of the Sheriff Courts Act of 1853 he was entitled to make the remit which he made. And in the important and instructive case of Pollock v. Ewing, May 25, 1869, 7 Macph. 815, it will be noticed that the case was disposed of by the Supreme Court in exactly the way the Sheriff-Substitute is following in this case. I do not think the case of the Magistrates of Kilmarnock v. Reid, January 22, 1897, 24 R. 388, forbids the view now taken. To some extent, indeed, it seems to save such a case as the present; and the later case of Steel v. Steel, March 9, 1898, 25 R. 715, on which the defender relies, appears to me not to be adverse to what is now being done. In giving judgment the Lord President said— “The parties are not precluded if otherwise it is appropriate from leading parole evidence. Here the primary question raised on the record is this, can the existing fence be repaired, or is a new fence necessary? And when the Sheriff-Substitute proceeded to conclude the matter on the report of Mr Kerr, the defender appealed to the Sheriff, and the Sheriff held that there still remained certain matters of fact which required to be cleared up, and allowed a proof. I am not concerned to say whether this was an appropriate decision or not, but neither party appealed, and proof was led.’

Now, here there do not at present at anyrate seem to be any matters requiring to be cleared up, as Dr Gillespie's report shows a fence can be erected, and the remaining averments on record are more of the nature of narration than anything else, and if there were such matters, the question would arise whether an order for proof was the appropriate course to obtain the desired information. Lord M'Laren expressly says it would not be the appropriate way, and I read the opinions of the Lord President and of Lord Adam as implying that they shared their colleague's view.

I am therefore of opinion that the course the learned Sheriff-Substitute is taking is the appropriate one in the circumstances, and I trust that the meeting which he invites will lead to a friendly settlement of this matter. A perusal of the correspondence that has passed between the parties seems to me fortunately to leave room for this hope, and if the matter were put by the parties into the hands of their agents I think a satisfactory result would not be difficult to obtain.”

The defender appealed to the First Division of the Court of Session, and argued— The Act 1641 c. 41, gave no authority for the erection of a fence anywhere except on the boundary between the two estates. Its object was to “part the inheritance,” not to strengthen the marches. If that had been desired, the pursuer should have instituted proceedings under the Act 1669, c. 17— Pollock v. Ewing, May 25, 1869, 7 Macph. 815. Here the only fence which the pursuer could get would be one down the medium filum of the stream, which was the actual boundary, and that, it was admitted, was out of the question. When the cases of Crawford v. Rig, July 21, 1669, M. 10,475, and Pollock v. Ewing, cit. supra, were considered, they were not authorities for the pursuer. In both cases the stream was inconsiderable, and in Crawford v. Rig it was clear that the defender must have consented to the fence. Nor was the defender bound to agree to the proposal of the pursuer that the fence should be entirely on the Wyseby side, but the expense should be borne mutually. There was no authority in the statute for that, and no reason why the defender should be at the expense of fencing the pursuer's lands.

Argued for the respondent— The Act 1661, c. 41, applied even where a stream was the boundary, and the proper course was, as here proposed, to build a fence partly on one side and partly on the other. All the cases were authorities for that. Crawford v. Rig and Pollock v. Ewing, both cited supra, also Seaton v. Seaton, January 9, 1679, M. 10,476. It was true that in these cases the boundary stream was narrower, but mere width was not the criterion. The only question in such cases must be, was the stream sufficient to form a barrier against cattle straying. The object of the statute was to protect the lands from trespass. It was said that the pursuer's proper course was to proceed under the Act 1669, c. 17, but that argument would be equally applicable in the cases cited above, or in any other case where the change of possession involved by the proposed fence was, as here, inconsiderable. But if the alteration of possession

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was objected to, the pursuer was entitled and willing to erect a fence entirely on his own side of the burn, and the defender was then bound to pay half the cost.