Scottish Court of Session Decisions

On 21st September 1904 Robert Ainslie Brown of Manuel, S.S.C., Edinburgh, brought an action against the North British Railway Company and others, inter alia, (first), to have it found and declared “that all and whole that area of ground extending to one acre and sixteen parts of an acre Scots or thereby … lying on the south-west side of the Union Canal, near the village of Causewayend, in the parish of Muiravonside and county of Stirling, is a part and portion of and comprehended within the bounds and marches of the lands and estate of Manuel, lying in the said parish and county, and belongs heritably to the pursuer as proprietor of the said lands and estate of Manuel;” and (fifth) to have it found and declared “that all and whole that piece of ground … lying on the north-west side of the viaduct forming part of the said defenders' railway between Manuel Station and Causewayend Station in the said parish and county, and which viaduct bounds the said piece of ground on the south-east, is part and portion of and comprehended within the bounds and marches of the pursuer's said lands and estate of Manuel, and belongs heritably to the pursuer as proprietor of the said lands and estate of Manuel, and which piece of ground is part of the lands which were compulsorily taken by the Slamannan Railway Company or by the Monkland Railways Company for the purposes of their undertaking as set forth in the Slamannan and Borrowstounness Railway Act 1846 (9 and 10 Vict. c. 107), or the Monkland Railways Act 1851 (14 and 15 Vict. c. 62), from the pursuer's … author, and not having been required or used by the said defenders the North British Railway Company, or their … authors the Slamannan Railway Company, or the Monkland Railways Company, for said purposes, has become ‘ superfluous lands’ within the meaning of the … sec. 120 of the Lands Clauses Consolidation (Scotland) Act 1845, and that in terms thereof the same vested in and became the property of the pursuer's said author as from and after the 26th day of June 1859, and that the same has now vested in and become the property of the pursuer in virtue of his rights and titles to the said lands and estate.”

The defenders pleaded—“(5) The pursuer not being owner of the land specified in the first conclusion of the summons, the defenders should, with respect thereto, be assoilzied. (6) The pursuer's claim to the said lands is barred by prescription. (9) The defenders are entitled to be assoilzied from the … fifth conclusions of the summons, …… (b) in respect the lands described in the … fifth conclusions are not superfluous within the meaning of the said Lands Clauses Act.….”

The facts of the case are fully given in opinion ( infra) of the Lord Ordinary ( Ardwall), who on 27th May 1905 pronounced this interlocutor—“Finds and declares that all and whole that area of ground extending to 1 acre and 16 parts of an acre Scots or thereby,… lying on the south-west side of the Union Canal, near the village of Causewayend, in the parish of Muiravonside and county of Stirling, with the exception of that portion of same which is … marked by the words ‘Lumber Pit’,… is a part and portion of and comprehended within the bounds and marches of the lands and estate of Manuel, lying in the said parish and county, and belongs heritably to the pursuer as proprietor of the said lands and estate of Manuel: … Assoilzies the defenders from the fifth conclusion of the summons…

Opinion.—“… The only really important questions, however, are those raised by the first and fifth conclusions. Under the first conclusion the pursuer seeks to have his right of property declared to 1 acre and 16 parts of an acre Scots or thereby marked A B C on the plan. It was, however, conceded in the course of the proof that he was not entitled to that portion of the land A B C, which is coloured yellow and marked with the words ‘lumber pit’ on the plan.

Before the construction of the Union Canal, in or about 1819, the whole of the land at or near the piece in question belonged to the estate of Manuel of which the pursuer is now the proprietor. The situation and character of the piece of land in question may be adverted to. The Union Canal crosses the river Avon from east to west upon an aqueduct. From the west end of the aqueduct the canal is carried westward for some distance on an embankment, but as the ground slopes upwards from the bed of the river Avon towards the west, the embankment becomes less and less till the canal reaches the level of the natural surface of the ground, and almost immediately after enters a cutting made through the pursuer's lands and increasing in depth as it goes westward.

In the course of making the canal it is evident that the engineers constructing it utilised the earth, stones, rock, and other materials taken out of the cutting for the formation of the embankment which is required to support the canal from the time it leaves the aqueduct till it reaches the natural surface level of the ground. The piece of ground now in dispute consists of a bank for about two-thirds of its length beginning at its eastmost point, while for the remaining third of its length the ground practically retains its natural configuration, while to the west of the ground in question there is a clay hill or clay pit from which clay has been taken from time to time in considerable quantities for the purpose of manufacturing puddle clay for the formation and repair of the bed of the canal.

The piece of ground in dispute has for many years been covered with trees and scrub. Some of the wood and cover possibly may have been self-sown, but there seem also to have been a considerable number of larch trees which presumably have been planted, but there is no evidence in the case to show when or by whom they have been planted.

In 1819 the estate of Manuel belonged to Mr John Baird, for whom Messrs MacRitchie, Bayley, & Henderson, W.S. Edinburgh, acted as agents. Mr Baird died on the 21st of November 1831. His affairs seem to have been in some confusion at the time of his death, and on 8th February 1838 an inventory of his personal estate was given up in the Commissary Court at Stirling by Henry George Watson, C.A., Edinburgh, factor loco absentis to James Hay junior, who apparently had been decerned executor qua creditor of the said John Baird. In that inventory the whole claim at the instance of the deceased John Baird against the Canal Company is set forth, and is the same as the claim on which the settlement I shall hereafter refer to took place; but it seems that in the meantime Isaac Bayley, S.S.C., Edinburgh, who married a daughter of the Rev. Dr Baird, a brother of Mr John Baird, purchased the estate of Manuel in 1832. Mr Isaac Bayley possessed the estate till his death in 1873. It then passed to his son Mr George Bayley, W.S., who held it till his death in 1902, and it was sold to the present pursuer, Mr Brown, in 1903 by Mr George Bayley’s heirs

The title of the defenders, the North British Railway Company, who in virtue of several Acts of Parliament now represent to all effects and purposes the Edinburgh and Glasgow Union Canal Company, consists of a disposition by John Baird, then proprietor of Manuel, to the said Canal Company, dated 12th February 1819. Under the Canal Company's Act, section 60, this disposition when recorded, which was done, is declared to have the same effect as if a ‘ formal disposition had been executed and followed by charter and seisin.’ By the said disposition the land conveyed to the Canal Company is thus described—‘ All and whole the piece or pieces of ground consisting of four acres and thirty-seven thousandth parts of an acre or thereby Scots measurement, being part of my said lands and estate of Manuelmiln, situated

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within the parish of Muiravonside and county of Stirling, which are required for the purposes of the said canal, and on which the company have commenced their operations.’

The said disposition contains the further clause, ‘and in respect it is impossible to ascertain the precise quantity of land to be occupied by the company until the canal and works connected therewith are completed, it is hereby declared that after the said works are completed a measurement of the ground occupied thereby shall take place, and in case it turn out that the said ground extends to more than is herein specified, the company shall pay to me for the excess at the rate of £75 sterling per acre Scots measurement, and should it turn out that the quantity is less than is herein specified, I oblige myself and my foresaids to repay to the said company such part of the price as shall correspond at the foresaid rate per acre to such difference.’

These clauses show that while it was at the time supposed that the extent of land therein mentioned was all that would be required for the purposes of the canal, yet there was to be a future measurement and settlement fixing definitely what land was to be permanently acquired by the company, it was doubtless contemplated that there should thereafter be a plan made out and a supplementary deed executed. A plan of the ground, evidently founded on careful measurement, was made by Mr Horne, a surveyor in the employment of the Canal Company, in 1822, which, with its table of contents, shows very distinctly, as it was first drawn out, the ground permanently acquired by the Canal Company, being 4·218 acres; this consisted of the 4037 acres mentioned in the disposition and a small quantity ·181 acre which is referred to in the correspondence as having consisted of a space of ten feet on each side of the acqueduct. But apparently, shortly after the plan had been drawn, the canal company altered the plan and table of contents so as to transfer from the table of contents of the spoil banks to the table of land retained by the company, the area in dispute consisting of 1·016 acres. The settlement following on the measurement was very long delayed; the first letter on the subject which is produced is dated 9th August 1830, in which the agents for the proprietor of Manuel called the attention of the canal surveyor to the ‘still unsettled claim of Mr Baird of Manuel.’ A state of claim for Mr Baird as at Martinmas 1831 has been produced, and a discharge by Mr Watson, accountant in Edinburgh, who, after Mr Baird's death, had come to represent Mr Baird's executor-creditor, was granted to the Canal Company on 6th September 1838, and has been recovered from the defenders. This discharge proceeds on the narrative ‘that the Canal Company were indebted to John Baird at the time of his death on 21st November 1831 in certain sums of money on account of said company's portions of his estate of Manuel Mill, and for ground taken by them from the said estate, amounting with interest to that date to the sum of £466, 14s. 4d., conform to detailed state thereof as adjusted by Messrs MacRitchie, Bayley & Henderson, writers in Edinburgh.’

The above sum with additional interest on part thereof brought up the sum due to Mr Watson to £586, 0s. 2d. sterling, and by the said deed he discharges the Canal Company of that sum. This state refers to the numbers and figures on the plan of 1822, No. 93 b. According to the state 4·037 acres, which is the quantity mentioned in the disposition, are represented as having been paid for by the £302, 15s. 6d. also mentioned in the disposition, but there is added the ·181 acre, which, at the rate of £75 an acre, made a difference of £13, 11s. 6d. This then is declared in the state to be the ground ‘occupied by the canal.’ The result of reading the discharge, claim, and plan along with the disposition is to identify exactly by measurements and boundaries the ground acquired by the Canal Company. The difference between the figures in the disposition and in the final settlement was so small that probably neither party thought there was any need for a supplementary deed. But the matter does not stop there, for the second portion of the state deals with what are there termed ‘spoil banks,’ and it is plain by a reference to the plan that these include the whole of the land now in dispute.… The claim in respect of the spoil banks consists of ( First) a claim for an agreed-on rent for the years 1820 to 1825, both inclusive, and then a claim ‘for deterioration of ground by spoil banks, 4·292 acres at £40 per acre.’ According to this state of claim, on which the settlement between the parties took place and the discharge already referred to was granted, it is made clear that, beyond the 4·218 acres above referred to no land was purchased or paid for, and in particular that the spoil banks, which by reference to the plan are found to embrace the whole of the ground now in dispute, were treated as still parts of Manuel property, for the deterioration of which by the Canal Company having used them as spoil banks, they paid damages at the rate of £40 per acre.

It seems from superinduced markings on the plan No. 93 b of process and the remarks upon these additions made upon the rough copy of No. 93 b, that a dispute had arisen as far back as 1822 as to the land in question. The Canal Company wished to retain the said piece of land, and from evidence in the case it appears that they had marked it out as their own by march stones, without any permission from the proprietor of Manuel. The correspondence brings this out very clearly, but all disputes which had then arisen were settled by the subsequent discharge which, taken along with the claim and plan referred to therein, shows that the whole land conveyed under the disposition was the 4·037 acres there mentioned, and this, with the 181 acre additional, is all that was paid for by the Canal Company as land taken by purchase. I am therefore of opinion that the defenders have not a title entitling them to prescribe a right to any land beyond the boundaries of the land thereby

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conveyed, which, in my opinion, are quite definitely fixed by the documents and plans above referred to.

It was strongly argued for the defenders that the disposition must be looked at by itself, and that extrinsic evidence is inadmissible. In this case, however, the evidence of the plan and settlement can hardly be called extrinsic, for in gremio of the disposition there is a reference to a future measurement and settlement under which the precise ground required for the purposes of the canal was to be ascertained, and this is probably the reason why no plan was annexed to the disposition showing the situation of the 4·037 acres thereby conveyed. It appears to me therefore that I am entitled to read the disposition by the light of the final measurement and settlement to which the disposition itself refers me, and without which the description in the disposition of the land conveyed is defective and unsatisfactory. I, accordingly, have arrived at the conclusion that the defenders' title is a bounding title under which they cannot acquire by prescription any land in excess of the subjects actually conveyed. The decision in Auld v. Hay, 5th March 1880, 7 It. 663, and other decisions to a similar effect, accordingly do not apply to the present case.

The defenders, however, require not only to produce such a title as will admit of their acquiring the land by prescriptive possession, but also to prove possession for twenty years attributable to their title as proprietors, and not to any inferior right. I do not think they have made out such a case. The first fact founded on by them is the existence and position of the march stones. Now, a reference to the correspondence shows that these march stones were put down before the settlement was arrived at which determined what land was to be permanently retained by the Canal Company and what land was to be regarded as damaged land left in the hands of the proprietors as spoil banks. Whatever may be said as to the competency of extrinsic evidence to explain the title, I think when we come to the question of possession, and the existence of march stones is founded on, it is competent to inquire when and under what circumstances these march stones were placed there, and the result of such inquiry is to show that these march stones were put down there without the consent of the proprietor of Manuel, and at a time when it was undetermined what land the Canal Company were to take. And there is no doubt that their presence at the points they were placed at led all along and down to the present time to constant misapprehensions on the part of persons who naturally believed that they correctly marked the boundary of the defenders' ground. It seems to me that such possession otherwise as the Canal Company (and afterwards the Railway Company) had was attributable to the rights of tenancy the company acquired from the proprietors of Manuel.

A memorandum as to the Canal Company's matters, drawn up by Mr Isaac Bayley, who purchased the property from Mr Baird's representatives, dated 15th July 1841, propounds as one of the questions the following:—‘ To state what portions of the spoil banks … the company are to have right to in absolute property.’ These spoil banks together make up the area now in question.

Following on this, the memorandum proposes that the company are to fence and enclose whatever they are to get in absolute property with a stone fence of a certain description. The answer to this is to be found in a letter dated 6th July 1841 by Mr Ellis, on behalf of the Canal Company, to Mr Bayley, in which he says that the Canal Committee will take a twenty years’ lease of the spoil bank at £5 a year, but will not purchase any part of the ground as the cost of enclosing it would be too great.

It appears that the company duly entered into possession of the land under this arrangement, but so little was the estate of Manuel looked after that no claim was made for rent till 9th April 1852, when £55 was claimed, being eleven years’ rent, and that sum was afterwards paid as is shown by the correspondence. The ground which was leased is indifferently called the spoil bank and the clay bank. Strictly speaking, the spoil bank only consisted of the eastmost two-thirds of the area in dispute, while the clay hill was situated wholly on what is marked No. 3 upon the plan of 1822. In the correspondence, however, these terms are applied indifferently to the whole ground.…

The matter came up again in 1873, and after some correspondence a lease, dated 3rd and 4th February 1874, was entered into, granting a lease for six years from Martinmas 1873. The lease confers the privilege of taking clay from that bank or enclosure, ‘part of the estate of Manuel, which is situated immediately to the west of the aqueduct on the Union Canal over the river Avon, and is bounded on the eastern side by the said canal, and on the western side by a road from Causewayend Bridge to a ford on the river Avon.’ In my opinion this description covers not only the clay hill proper, but the area in question. In point of fact these subjects all formed part of the same enclosure, and although it is true that the provision as to taking clay and restoring to natural level applies strictly only to the clay hill, it seems to me that the lease includes the area in question. It is further proved that all along the Canal Company's servantswere accustomed to tip dredgings from the canal on to the place in question with the two objects of getting rid of the dredgings and strengthening the bank of the canal at that place. With their doing this nobody seems to have interfered. It did no one any harm; on the contrary, it tended to strengthen the bank and obviate the danger of leaks and landslips which were to be feared alike by the proprietor of Manuel and the Canal Company.

There is also some evidence that now and again the employees of the Canal Company

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cut trees on the ground in question for the purpose of forming jetties or arms for jetties along the canal, and it is certainly a remark rather in favour of the defenders that while Mr Bayley wrote objecting to the cutting of these trees he afterwards allowed the matter to drop. Probably he did not think it worth while insisting on being paid for them. The most important act of possession, however, which has been exercised by and on behalf of the defenders was exercised by their tenants the Logans, who built a cottage on the area in dispute. This they did in virtue of a lease which they got from the defenders on 27th July 1894. But it may be said that even if the proprietor of Manuel ever had any notice of what was being done, there was no reason why he should object to a cottage of some value being built on ground belonging to him, but which was of practically no value to him.

On the whole of this part of the case, I am of opinion that the facts founded on by the defenders as tending to prove possession may fairly be attributed either to the false position of the march stones marked A B C. or to the leases granted to the defenders and their predecessors by the proprietors of Manuel or to the valueless character of the spoil bank itself, or to the combination of one or more of these causes.

… [ His Lordship here dealt with another conclusion of the summons], …

In the fifth conclusion of the summons the pursuer seeks to have it found and declared that the piece of ground there described vested in and became the property of the pursuer’s author as from and after the 26th day of June 1863, and that the same has vested in and become the property of the pursuer in virtue of his titles to the estate.

When the Slamannan and Bo'ness Railway was constructed the defenders' predecessors considered it a prudent act while laying down only a single line of rails at first, yet so to construct their railway works as that should it at any time become advisable to double their line that could be done without new works being executed beyond the laying down of another line of rails; and to enable this to be done they acquired under their Acts and within their limits of deviation enough land to double their line all along its length. The cuttings and embankments were so constructed as to permit of a double line of rails being laid, but when it came to building the viaduct, while they took enough of ground to enable them to construct a viaduct for a double line of rails, the viaduct actually constructed by them was only constructed for a single line. At the place in question the defenders' predecessors acquired a strip of land 36 feet in breadth. It is undisputed that in constructing all viaducts railway companies acquire at least enough land to provide for a space of 3 feet on each side of the viaduct by which they may have access to all parts of it for repairs and the like without trespassing on ground belonging to others. Accordingly the present viaduct was constructed with its eastern elevation three feet from the eastern boundary of the said strip. The viaduct itself occupies 15 feet more. It is admitted that the Railway Company require 3 feet on the west to repair the present viaduct, and the present claim accordingly is for the strip 15 feet wide which forms the westmost part of the ground acquired by the defenders' authors at that place, and the pursuer maintains that this 15 feet has become superfluous land within the meaning of section 120 of the Lands Clauses Consolidation (Scotland) Act 1845, and that it vested in the pursuer's authors on the expiry of ten years from 26th June 1853, being the expiration of the time limited by the special Act for the completion of the railway works.

I am of opinion that this claim is not well founded. In the first place, it appears to me that land taken for the future doubling of a line of railway is not the kind of land which falls under the section relating to superfluous land at all. It certainly does not seem to fall within any of the categories laid down by Lord Chancellor Cairns in the case of the Directors of the Great Western Railway Company v. May (L.R., 7 E. & I. App. 283, see particularly foot of page 292), and it seems to me to be not within the policy of the said section, which is to prevent railway companies becoming landowners, which is a character foreign to the enterprise for furthering which alone they obtain compulsory powers to take land (see the case last cited at page 293, and also Lord Hatherley's opinion in the case of Hooper v. Bourne, L.R., 5 App. Cas. 13). But assuming that the Act does apply to any extent to land taken at the original construction of a railway for the purpose of at any time, if necessary, doubling the line, the next observation is that, as laid down in the case of Hooper above referred to, the burden of proving a title to superfluous land lies upon the claimants; and I am of opinion that in the present case the pursuer has not discharged that burden, In order to do so I think he would require to show that at no future time will the defenders require to double their railway, and the evidence in this case shows that far from that being the case the time for doubling it may arrive at any moment. The pursuer laid great stress upon what he alleged to be the abandonment by the Railway Company of the land in question, and at the hearing on the evidence his counsel founded strongly on the fact that the land belonging to the defenders at the viaduct was not fenced in, and had been regularly ploughed and cropped as part of the adjoining fields. It appears to me that the suggestion that the land should have been fenced is a most ridiculous one. To begin with, I think it is certain that the severance damage originally paid by the Railway Company was calculated on the footing that there should be free ingress and egress under the arches of the viaduct. At least that is the footing on which every case I have known of relating to a viaduct has been settled. In particular, I may mention the Glenfinnan viaduct, regarding which there was an interesting discussion on

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evidence as to whether red deer would use the passages under the arches of the viaduct for travelling between one part of the forest and another. But even supposing the Railway Company were entitled to put up such a fence, they had very good reasons for not doing so, because, on the one hand, it would cause needless expense to themselves, and on the other hand it would prevent the pursuer's tenants from using the ground as part of their cropping land, which would obviously be a most unneighbourly act. I therefore cannot hold that the omission to fence the land in question implies abandonment thereof by the Railway Company to the effect of rendering it superfluous land. For these reasons I have no hesitation in assoilzieing the defenders from the fifth conclusion of the summons.

“Of course the judgment now given does not affect any possible questions which the Messrs Logan may raise regarding the ground in question, or the cottage built by them thereon.

With regard to expenses, while it may be said that the success has been so far divided, yet the pursuer has been successful upon the first conclusion of the summons, with which the greater part of the evidence, oral and written, was concerned. I accordingly find the pursuer entitled to one-half of his expenses from the 23rd of February 1905, as the same may be taxed by the Auditor.”

The defenders, the North British Railway, reclaimed, and argued—(1) It had not been shown (and the onus was on the pursuer) that the defenders were in possession of more than the acreage “or thereby” specified in the disposition. The defenders had got ·181 acres more than the 4·037, why not an additional 1·016? After forty years’ possession of the defenders, e.g., 1820-1860, it was incompetent for the pursuer to go back and seek to show by extrinsic evidence that the defenders or their authors had taken more than the title of 1819 gave them— Auld v. Hay, March 5, 1880, 7 R. 663, 17 S.L.R. 465; Rankine on Land Ownership, p. 30; Buccleugh v. Cunynghame, November 30, 1826, 5 S. 57; Forbes v. Livingstone, November 29, 1827, 6 8. 167 at 173; Wallace v. University Court of St Andrews, July 20, 1904, 6 F. 1093, 41 S.L.R. 812. (2) Even if the pursuer had shown that the ground in question was not part of the 4'037 acres, there was nothing in the title to prevent the North British Railway proving that they had acquired the extra acre by prescription. There was no plan appended to or incorporated in the disposition. The plan, discharge, and claim referred to by the Lord Ordinary as contributing to make up a bounding title were extrinsic evidence, and such evidence was not competent to withstand the evidence of possession, nor could a bounding title be so constituted— Auld v. Hay, and other cases cit. supra; also Fraser v. Lovat, February 18, 1898, 25 R. 603, 35 S.L.R. 471; Cooper's Trustees v. Stark's Trustees, July 14, 1898, 25 R. 1160, 35 S.L.R. 897, opinions of Lord Justice-Clerk and Lord M'Laren. The pursuer said that here there was no clause of parts and pertinents as in Cooper; the absence of a clause of parts and pertinents did not in any way prevent prescription— Beaumont v. Lord Glenlyon, July 11, 1843, 5 D. 1337; Lord Mackenzie at 1342. The title was not a bounding title; the mere statement of acreage or dimensions could not per se constitute a bounding title— Ure v. Anderson and Others, February 26, 1834, 12 S. 494; Bell's Principles, sec. 738; Rankine on Land Ownership, 96, 97, and Duff therein cited; Coopers Trustees v. Stark's Trustees, supra, and Erskine Inst, ii, 6, 2, and Stair ii, 3, 26, therein referred to; Douglas v. Lyme, February 2, 1630, M. 2262. This last case was a fortiori of the present, and never apparently had been challenged. There was nothing accordingly in the disposition preventing possession (if they proved it) being referable to their title, or being reconcilable with it, which was sufficient— Education Trust Governors v. Macalister, July 6, 1893, 30 S.L.R. 818. Possession does not merely explain the title, but if there is a habile title and possession has followed, the possession then constitutes the title. They had proved possession, possession of so full a character that it was only compatible with ownership, and must be ascribed to the title of 1819. They must succeed if they showed possession either from 1820-1860, or from 1884-1904. They had succeeded in showing possession for both of these periods. [The pursuer not challenging the Lord Ordinary's judgment on the fifth conclusion of the summons, no argument on it was necessary. The following authorities on that point in the case had been quoted—Directors, &c. of Great Western Railway Company v. May, [1874] L.R. 7 E. & I. App. 283; Hooper v. Bourne [1877], 3 Q.B.D. 258 and (1880) 5 App. Cas. 1; North British Railway v. Moon's Trustees, February 8, 1879, 6 R. 640, 16 S.L.R. 329; Emsley v. North-Eastern Railway Company, [1896] 1 Ch 418; Stewart v. Highland Raviway Company, March 8, 1889, 16 R. 580, 26 S.L.R. 438; Norton v. London and North-Western Railway Company (1879), L.R. 13 Ch D 268; Betts v. The Great Eastern Railway Company, [1878] L.R., 3 Ex. D. 182; Macfie v. Callander and Oban Railway, February 25, 1898, 25 R. (H.L.) 19, 35 S.L.R. 413; Hobbs v. Midland Railway Company, L.R. [1882] 20 Ch. D. 418].

The pursuer (respondent), who did not challenge the judgment on the fifth conclusion, argued—In all the cases referred to by defender there was a title capable of carrying what was claimed, or a title which required to be interpreted. In Cooper v. Stark the possession was under the clause of parts and pertinents; there was none here. Here there was a definite amount of ground conveyed, unaccompanied by any description applying to a larger amount. The plan, claim, and discharge identified the ground conveyed, and the extra ·181 had been shown to be a strip of ground along the aqueduct given for purposes of repair. They were not claiming this; possibly the “or thereby” might be wide enough to cover this, but it was

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not wide enough to cover the ground claimed. The title was a bounding title, or at any rate a limitation in gremio of defenders' title, such as figured by Lord Glenlee and Lord Meadowbank in Ure v. Anderson, supra. Prescription might secure a progress of titles, as in Fraser v. Lovat, supra, or interpret a grant, as in Cooper v. Stark, supra, it was not itself the title. Douglas v. Lyme was very shortly reported. It might well have been that there were no means of identifying which four acres out of the six were those disponed. In any event such possession as the defenders had had was not referable to their title.

At advising—