Scottish Court of Session Decisions

Isabella Logie and Helen Logie, 15 High Street, Montrose, brought an action against John Balfour Alexander, shipowner, Montrose, and others, trustees under the antenuptial contract of marriage of John Reid, chemist, Montrose, concluding, inter alia, for declarator that the pursuers were proprietors of a lane or passage measuring 30 feet in length from Market Street, formerly known as East Backsides, Montrose, and lying between property on the north thereof belonging to the pursuers, and the property on the south thereof belonging to the defenders, subject to a right in the defenders, as owners of the property to the south of the lane, to free ish and entry by the lane to the back part of their said property; and that the defenders should be ordained to take up and remove from the solum of the said passage a water-pipe laid by them therein, and should be interdicted from inserting pipes therein or executing any other works thereon, or otherwise interfering therewith in time coming. The summons also concluded alternatively for declarator that the pursuers were proprietors of the solum of the said lane or passage usque ad medium filum.

The defenders did not dispute that the pursuers were proprietors of the solum of the passage up to the medium filum on the side adjoining their property, but they did dispute that the pursuers were proprietors of the whole solum of the passage. Prior to 1700 the whole block of ground, including the properties of the pursuers and of the defenders, belonged to John Ferrier. In that year Ferrier disponed the subjects which now belonged to the defenders to David Lyell. In that disposition the subjects disponed were described as being bounded by “the other tenement of land lately pertaining to the deceast Patrick Guthrie” [Ferrier's predecessor in title], “and the yaird and tayll thereto belonging at the north,” and the subjects were disponed with free ish and entry by the passage in question.

In 1774, after various transmissions, the remainder of the ground which had been retained by Ferrier became the property of William Burness, who in that year disponed to one Barclay that portion of the ground [marked No. 6 on the plan produced in process] ex adverso of which the part of the passage in dispute was situated. In the disposition by Burness to Barclay the subjects disponed were described as “All and whole that tenement of land … bounded with … the common passage from the said High Street to the

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East Racksides [now Market Street] on the south, with free ish and entry thereto by the said passage from the said street to the East Backsides.” Burness subsequently disponed other portions of the ground belonging to him in separate lots to different disponees, and after various transmissions the whole of the ground north of the passage as formerly possessed by Burness became the property of the pursuers. In the pursuers' title that portion of the ground marked No. 6 on the plan was described as bounded on the south by the passage from the East Backsides to the High Street.

The pursuers averred—“(Cond. 3) The said lane or passage was formed entirely on the pursuers' lands, and the solum thereof belongs to the pursuers and is included in their titles, and the defenders have only a right of ish and entry thereover to and from the rear part of their property. The right of the pursuers and their authors to the solum of the said lane or passage has been repeatedly recognised by the defenders and their authors, and until recently it has never been disputed that the right of property in the said lane or passage was and is in the pursuers and their authors, who have possessed the same from time immemorial, or at least for over forty years, in virtue of their titles, and have exclusively carried out works thereon, and laid drain and water-pipes therein at their own expense, and exercised all proprietorial rights thereover, subject only to the right of ish and entry in the owners of the defenders' property.”

These averments were denied by the defenders.

It was admitted by the defenders that they had opened up the southern side of the passage adjoining their property for the purpose of laying a water-pipe. The pursuers averred that this constituted an encroachment on their rights as proprietors of the whole solum of the passage.

The pursuers pleaded, inter alia, as follows:—“(2) The pursuers being proprietors of the said lane or passage in virtue of their titles and possession had thereon, decree should be granted in terms of the first declaratory conclusion of the summons.” “The defenders pleaded, inter alia, as follows:—(1) No title to sue. (2) The titles of the parties being the exclusive measure of their rights cannot be qualified by extraneous evidence other than writ. (3) The action is irrelevant.”

On July 3rd 1902 the Lord Ordinary ( Low) pronounced the following interlocutor “In regard to the first declaratory conclusions of the summons, and the conclusion to have the defenders ordained to remove a water-pipe, Sustains the first plea-in-law for the defenders, and dismisses the said conclusions: Of consent of the defenders, finds, decerns, and declares in terms of the alternative declaratory conclusion of the summons,” &c.

The pursuers reclaimed.

Argued for the pursuers and reclaimers—When the subjects now belonging to the defenders lying on the south of the lane were given off by Ferrier in 1700, they were described as bounded on the north by the property which at that date remained in Ferrier. The property so remaining in Ferrier, consisting of the ground now belonging to the pursuers, included the solum of the lane. As the defenders' title did not include the lane, the lane remained the property of Ferrier, and the onus was on the defenders to show that the right of the pursuers, as Ferrier's successors, was excluded. In this view the description of the subjects ex, adverso of the part of the lane in dispute contained in the disposition by Burness to Barclay in 1774, in which these subjects were described as being bounded on the south by the lane, could not be read as excluding the lane. On the contrary, this disposition conveyed the full rights in the property conveyed which had belonged to Burness, and before him to Ferrier, who was Burness' predecessor in title, and therefore included the lane. The observations of the Judges in Louttit's Trustees v. Highland Railway Co., May 18, 1892, 19 R. 971, 29 S.L.R. 670, that a conveyance of land described as bounded by a road is prima facie a grant exclusive of the road, did not apply to the circumstances of this case. Further, such a rule was contrary to the decision in Magistrates of Ayr v. Dobbie, July 15, 1898, 25 R. 1184, 35 S.L.R. 887. The authorities were reviewed by Lord Moncreiff in the latter case, who came to the conclusion that the balance of authority was in favour of the view that prima facie such a grant was not exclusive of the road ( per Lord Moncreiff in Magistrates of Ayr v. Dobbie, supra, at p. 1196; also per Lord Rutherfurd Clark in Currie v. Campbell's Trustees, December 18, 1888, 16 R. 237, at 241, 26 S.L.R. 170). The presumption rather was, as stated by Lord Cranworth in Wishart v. Wyllie, April 14, 1853, 1 Macq. 389, that the ground extended to the medium filum of the road. But this presumption could be rebutted by evidence ( per Lord Cranworth in Wishart v. Wyllie, supra; also per Cotton, L.J., in Micklethwaite v. Newlay Bridge Co., 33 Ch. Div. 133, at 145). They averred that the pursuers' right had never been disputed, and had been repeatedly recognised by the defenders, and they also made sufficient averments of prescriptive possession— Ferrier v. Walker, February 16, 10 S. 317. The titles might competently be explained by the prescriptive possession following on them— Cooper's Trustees v. Stark's Trustees, July 14, 1898, 25 R. 1160, 35 S.L.R. 897. They moved for a proof of their averments.

Argued for the defenders and respondents—The question turned on the description given of that portion of the ground ex adverso of which the part of the passage in dispute was situated in the conveyance by Burness to Barclay in 1774. In that conveyance the ground now belonging to the pursuers was described as bounded on the north by the passage. This description prima facie excluded the passage from the land conveyed— Louttit's Trustees v. Highland Railway Co., supra. The case of

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Magistrates of Ayr v. Dobbie, supra, was in no respect contrary to that decision, as the road in the Ayr case was a public road. The lane in this case was admittedly a private road. There was reason, too, why the property in the lane should not have been conveyed to the purchaser of lot No. 6 in the conveyance of 1774, for that lot was one of three lots, and if the property in the lane had been conveyed to the purchaser of lot No. 6 the granter could not have given a right of using the lane to the purchasers of the other lots, which right was necessary to the beneficial enjoyment of the other two lots. Again, if the solum of the lane had been conveyed by the disposition of 1774 it was quite unnecessary to give the disponees (as was given in the disposition) a right of free ish and entry by the passage. The pursuers on their title accordingly had not a right to any part of the solum of the lane, but the defenders had no interest, and did not desire, to dispute the right of the pursuers to the property in the lane up to the medium filum. Having regard to the pursuers' titles, the pursuers' averments of possession were irrelevant. These averments were also insufficient from lack of specification. There was nothing in the titles—such as a conveyance of parts and pertinents—which could be expiscated by proof of possession. No proof of possession would enable the pursuers to establish a right of property outside of and contrary to their titles, and therefore the motion for proof should be refused.