Scottish Court of Session Decisions

Thomas Chalmers Hetherington, proprietor of St Kitts, Colinton Road, Edinburgh, brought an action of suspension and interdict against Alexander Galt, proprietor of Trengweath, Colinton Road, and adjoining St Kitts, in which he sought to interdict the latter from cutting down certain trees alleged by the complainer to form the boundary between the properties and to belong in common to both. The respondent contended that the trees were situated within the boundary of his property and belonged to him. The question at issue between the parties was what was the true line of boundary between the properties.

The facts of the case are fully set forth in the opinion of the Lord Ordinary infra.

The following is an excerpt from the feu-charter of 27th April 1883 by which the whole block of ground, which was subsequently divided into the two feus belonging to the complainer and respondent respectively, was given off:—“We … do hereby dispone to and in favour of George Thomas Beilby … In the first place, all and whole that piece of ground measuring one rood twenty-four poles nineteen yards or thereby imperial measure and bounded as follows, viz.—On the north or north-west by a line running parallel to and at a distance of six feet south or south-east from the southern or south-eastern boundary of the public road from Edinburgh to Colinton along which it extends eighty feet or thereby; on the west or south-west by unfeued ground belonging to us along which it extends two hundred and twenty feet or thereby; on the south or south-east by ground agreed to be feued to the said James Duncan, along which it extends eighty feet or thereby, and on the east or north-east by the piece of ground hereinafter disponed in the second place, along which it extends two hundred and twenty feet or thereby: And, in the second place, all and whole that piece of ground measuring two roods sixteen poles twenty-nine yards or thereby imperial measure, and bounded as follows, viz.—On the north or north-west by a line running parallel to and at a distance of six feet south or south-east from the southern or south-eastern boundary of the said road from Edinburgh to Colinton, along which it extends one hundred and twenty feet or thereby; on the west or south-west by the piece of ground before disponed in the first place, along which it extends two hundred and twenty feet or thereby; on the south or south-east by ground agreed to be feued to the said James Duncan, along which it extends one hundred and twenty feet or thereby; and on the east or north-east also by ground agreed to be feued to the said James Duncan, along which it extends two hundred and twenty feet or thereby.… as the said two pieces of ground are delineated and coloured green on a plan or sketch thereof annexed and signed as relative hereto.… And the said George Thomas Beilby and his foresaids shall be bound immediately on delivery hereof, the said lot or piece of ground having been previously measured or staked off by our architect at the expense of the said George Thomas Beilby, to enclose the said piece of ground with a sufficient temporary fence, and thereafter to build and erect boundary walls to the said pieces of ground.”

The Lord Ordinary ( Stormonth Darling) after proof granted interdict.

Opinion.—“This is an unfortunate dispute about a very small matter between the owners of two adjoining villas on the outskirts of Edinburgh. The action being one of suspension and interdict, the actual question raised is whether the respondent, who is owner of the villa called Trengweath, is to be interdicted from cutting down or otherwise interfering at his own hand with any of the trees which the complainer, who is owner of the villa called St Kitts, asserts to be growing on the boundary between the two properties. The respondent at present only proposes to cut down three trees which are said to be too close to the others, and, I daresay, would be better away. But that is not a question for me, and the problem really involved is what is the true boundary between the feus. If the trees are on the line of march they are undoubtedly common property, and cannot be removed without the consent of both proprietors.

“The feus were given off practically at the same time in 1883, although for convenience the feu-charter was taken in name of Mr Beilby, who was to have the larger of the two feus, viz., St Kitts, and he disponed to Mr Shiells, who was to have the smaller feu, viz., Trengweath. The feu-contract was recorded on 27th April 1883, and the disposition not till 15th May. But the dimensions of the two feus were separately described in the feu-contract, and this description, so far as it related to Trengweath, was exactly reproduced in

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the disposition by Bielby to Shiells. I do not think that anything turns on the fact that for conveyancing purposes Beilby was for a short time vested in the right to both plots of ground. So far as the present question is concerned, I think that the transactions must be regarded as simultaneous.

“When Beilby and Shiells came to lay off their grounds it was found that the plan of the whole block appended to the feu-charter was not perfectly accurate. The plan showed a rectangular block measuring 200 feet both in front and at the back, of which St Kitts was to have 120 feet or thereby, and Trengweath 80 feet or thereby, front and back. The actual measurement showed about 201 feet on the Colinton Road and about 199 feet to the back. There was a clause requiring the erection of boundary walls on all sides of both fens, but the feuars arranged with the superiors that they should not insist on the erection of a wall between the two feus, and that the line of march should be indicated by a row of trees. The feuars proceeded to have this done, and the trees were bought and planted at joint expense, on a line mutually agreed on and staked out before the planting was commenced. The line drawn was practically straight, except where a slight bend into the ground of St Kitts was made in order to leave more room for the drive up to the door of Trengweath, which was in cutting. The trees were planted before Whitsunday 1884. No writing passed, but the two feuars continued to possess their respective grounds in accordance with the agreement. When any trees in the row had to be cut, as sometimes happened, it was done by mutual consent. About eight years ago Mr Beilby put up, at his own expense, a light fence of wire netting, and as this was mainly to keep animals of his own from straying into bis neighbour's ground, he erected the fence on his own side of the row of trees and entirely at his own expense. All this stands upon evidence which is absolutely uncontradicted.

“The complainer acquired St Kitts from Mr Beilby on 6th April 1902. He was told at the time of his purchase about the agreement as to the row of trees, and, so long as Shiells remained owner of Trengweath, there was no change of possession. But Shiells sold Trengweath to the respondent in May last, with entry at Whitsunday 1904, and there is a conflict of evidence as to whether Shiells informed the respondent's agent, as undoubtedly he ought to have done, of the agreement about the row of trees. In this state of matters I cannot hold it proved that he did give the information. Certainly the respondent himself never heard of it till 11th July last, when the complainer having heard that the respondent proposed to fell some trees in the row, wrote to him telling him of the old agreement, and offering to see him on the subject. Unfortunately this suggestion was not adopted and the matter passed into the hands of the law-agents.

“The respondent's case is that he is not bound by any verbal agreement between the former proprietors, even though followed by prescriptive possession, and that having bought on the faith of the recorded titles he is entitled to the boundary as therein defined. His plea would I think be well founded if the complainer's contention involved any material deviation from the boundary in the titles. But it cannot be said that there is any material deviation. The titles do not define the boundary except by measurements which are not precisely accurate, and do not profess to be so, for every measurement is qualified by the words ‘or thereby.’ If there had been 120 feet for St Kitts and 80 feet for Trengweath, both in the front and at the back, it would have been possible to draw a mathematically straight line from the point at which these measurements met in front to the point where they met at the back. There being a foot more than the titles gave for both plots in the front, and a foot less for both plots at the back, some slight re-adjustment was necessary, and when the persons with the full right to make the adjustment made it in a way satisfactory to themselves, and exhibited the line by marks visible on the ground, and possession for more than twenty years followed, I cannot hold that even a singular successor is entitled to re-open the whole question. I should say the same even if there had been no inaccuracy in measurement, and the slight deviation in the line of march had been caused by something in the lie of the ground—something in short which was not merely a matter of temporary or personal convenience. No doubt a row of trees is not a fence, but march-stones are not a fence, and if the boundary had been indicated by march-stones so near the boundary given in the titles as sufficiently to indicate their purpose, I cannot doubt that a singular successor would have been held bound by them. The deviation in this case is so slight as to be measured only by inches. Mr Bennet, the surveyor who was examined for the respondent, gives the exact distance of some or the trees from the imaginary straight line in the titles, and the distance is in no case more than a foot, generally only a few inches. No doubt his measurements all have the effect of throwing the line of trees into the respondent's property, but when a line intended as a march and prescriptively possessed as a march is so close an approximation to the title boundary as that, it is I think sufficiently covered by the qualifying words ‘or thereby,’ and so no question of bounding title really arises.

“At all events, it seems to me that the existence of the row of trees ought to have put the respondent on his inquiry. It would be vain for him to say that the wire-netting fence misled him, and he does not say so. This fence is of a slight construction, with none of the substantiality of a mutual fence; and it is not in a straight line. Neither the respondent nor his agent profess to have considered the question of boundary from anything which they saw

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on the ground; their sole reliance is on the titles. A purchaser is not bound to inspect the ground which he is purchasing for any glaring deviation from the description in the titles, but when measurements in that description are qualified by inexact words like ‘or thereby,’ I do not think that he is safe to rely on the measurements being minutely accurate, and I do think that he is bound to take note of any visible object which may serve to explain the description.

“None of the cases cited seem to me of much assistance, and I do not myself remember any that would be, unless perhaps Strang v. Stewart, 2 Macph. 1015, affirmed 4 Macph. (H.L.) 5. In that case there are some clear expressions of opinion to the effect that adjoining proprietors may contract with each other that a fence shall be erected at mutual expense as a march fence, or that a fence not originally so erected may be treated as such, and if so treated for the prescriptive period must he recognised and maintained as a march fence by singular successors. The actual proof in that case did not satisfy the Court that there had been any adoption of the fence (which consisted of a hedge and ditch) as a march. Here the case is not one of adoption, and the proof of agreement is clear. If agreement had been proved in Strang v. Stewart, it is plain that the judgment would have been the other way. There was a difference between that case and the present, inasmuch as the titles there merely described the two properties as bounded by each other. But I think I make sufficient allowance for the difference when I concede that the respondent here would not have been bound by the agreement made and acted on by the former proprietors if it had involved any material deviation from the boundary indicated in the titles, and if there had been nothing on the ground to mark what the boundary so agreed on was.

“The complainer maintained, as an alternative argument, that if the trees in question are on the respondent's side of the march, they are so near the march and derive so much of their nourishment from the complainer's soil that they must be regarded in law as common property. There are passages both in the Digest and the Institutes (Dig. xli, 1, 7, 13, and Inst, ii, 1, 31) which bear that if a tree was planted so near a boundary as to extend its roots into the land of a neighbour it was regarded by the civilians as common property. But I do not think that this rather vague rule has ever been adopted by the law of Scotland. Certainly in the somewhat analogous case of a proprietor's tree extending its branches over the ground of his neighbour, the case of Halkerston (1781), M. 10,495, shows that the result is not to give the neighbour any joint right of property in the tree, but merely to give him a right to demand that the owner of the ground in which the tree stands shall lop the overhanging branches.

“Accordingly I think the whole question here is whether the trees proposed to be cut are on the march, in which case they are common property, or on the respondent's ground, in which case they are wholly his. Being of opinion that they are on the march, I shall make the interdict formerly granted perpetual.”

Argued for the reclaimer and respondent—The trees being situated upon his side of the true boundary line, were his property. The boundary line must be ascertained by reference solely to the titles, which were bounding titles and admitted of no deviation. As a singular successor he was entitled to rely solely upon his title and was not bound by any agreements made by former proprietors. The words “or thereby” were mere words of style and did not affect the title.— North British Railway Company v. Magistrates of Hawick, December 19, 1862, 1 Macph. 200, 35 Scot. Jur. 94; Stewart, &c. v. Greenock Harbour Trustees, January 12, 1866, 4 Macph. 283, 1 S.L.R. 103; North British Railway Company v. Hutton, February 19, 1896, 23 R 522, 33 S.L.R. 357. At most they could only qualify a title in the case where the granter of the disposition had conveyed away the whole of his land and where it was therefore physically impossible for him to give the exact figures contained in the disposition if in fact the property turned out to be smaller than described. Here his predecessor obtained his conveyance from the grantee in the original feu-charter at a time when the latter was vested in both plots.

Argued for the respondent and complainer—The trees formed the boundary and were accordingly common property. The words “or thereby” indicated that the measurements were only meant to be approximate— Davis v. Sheppard, 1866, L.R. 1 Ch. 410, at 416—and it was found in fact that without some modification they were inapplicable to the feus. The parties accordingly adjusted the boundary, and the adjustment made by them, being permitted by the titles under the words “or thereby,” was binding upon singular successors. The question at issue was what did the titles mean; and no better explanation was available than that furnished by the parties who originally had to interpret them and mark out a boundary.— Girdwood v. Paterson, June 3, 1873, 11 Macph. 647, 10 S.L.R. 439; Strang v. Stewart, March 31, 1864, 2 Macph. 1015. In any case, the reclaimer was bound by acquiescence, the line of boundary having been patent to him when he acquired the feu.— Muirhead v. Glasgow Highland Society, January 15, 1864, 2 Macph. 420.

At advising—