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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Summers & Anor v Crichton [2000] ScotCS 302 (1 December 2000)
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Cite as: [2000] ScotCS 302
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OUTER HOUSE, COURT OF SESSION |
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O30/4/97
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OPINION OF LORD CAMERON OF LOCHBROOM in the cause JOHN WILLIAM SUMMERS AND ANOTHER Pursuers; against MISS JOYCE McDONALD CRICHTON Defender:
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Pursuers: Reid; McClure Naismith
Defender: J.P. Robertson; Drummond Miller, W.S. (for Muirhead, Buchanan, Solicitors, Stirling)
1 December 2000
[1] This action concerns a boundary dispute between the parties. The pursuers own the subjects known as the Old Mill, Craigforth, Stirling. Their title is contained in a feu disposition dated 17 November 1988 and recorded in the General Register of Sasines for the County of Stirling on 7 December 1988. It is a matter of admission in the pleadings that the pursuers' property is particularly described in a feu disposition by the Crown Estate Commissioners in favour of the pursuers' predecessors in title, Gordon James Millar, dated 26 April 1976 and recorded in the General Register of Sasines for the County of Stirling on 15 June 1976 ("the 1976 disposition"). The defender owns adjacent property now known as the Old Mill Cottage but formerly known as Stone Cottage. Her title was registered in the Land Register of Scotland on 5 December 1995. It derives from, and the subjects are as described in, a feu disposition granted by the Crown Estate Commissioners in favour of her immediate predecessor, Mrs. Margaret Allison, dated 6 March 1978 and recorded in the above General Register of Sasines on 22 March 1978 ("the 1978 disposition"). The subjects owned by the pursuers are admitted by the defender to extend to and include the bed of a mill lade. The mill lade is bounded by a wall on its south east side as the mill lade emerges from the building known as the Old Mill. This wall marks some part of the boundary between the parties' subjects. In terms of her title, the defender owns the wall and is under obligation to uphold and maintain the south east wall so far as it lies within the subjects owned by her. The pursuers have no responsibility for upholding or maintaining it.
[2] Shortly after the pursuers moved into the Old Mill, the property was subject to flooding from the River Forth which passes to the west of the property and from which water for the mill lade is drawn. The pursuers thereafter erected outside and upstream of the point at which water was taken into the mill lade a shaped embankment or levee through which water was led in a pipe. A further levee was constructed across the mill lade a short distance downstream of the Old Mill itself with a pipe sunk into it through which water could pass to the mill lade downstream of the levee. A control sluice for the pipe was also built into these levees which could be operated from the surface of the levee. The control to the downstream levee was approached by means of the garden ground of the Old Mill on the west side of the property. The construction of this levee gave rise to an acrimonious dispute between the pursuers and the owners of subjects known as Old Mill Farmhouse which lay adjacent to the mill lade downstream of the Old Mill Cottage. The dispute formed the basis for a lengthy sheriff court action between these parties which was eventually resolved in favour of the pursuers. I refer to this dispute in more detail later.
[3] At the time of the pursuers' purchase of the Old Mill, the Old Mill Cottage was owned and occupied by Mrs. Margaret Allison and her husband. At that time the mill lade was in a poor state of repair as was the south east wall. It was disused, having long ceased to be used for its original purpose in providing water power for the mill. It had silted up on both sides with banks of silt and other matter in which trees had rooted. In particular at one point along the length of this bank a mature ash tree with three trunks was growing. A short distance downstream from this tree Mr. and Mrs Allison had caused stones and other material to be put down and piled to create a walkway down the side of the bank to the mill lade.
[4] The primary submission for the pursuers was that the defender had been guilty of encroachment on their property by the building of a wall wholly or at least partly on their property without their consent and that the extent of the encroachment was substantial and could not be described as de minimis. This submission was directly related to the declarator sought in terms of the first conclusion of the summons as amended at the conclusion of the proof. In particular, the declarator sought is to the effect that the pursuers' subjects are bounded on or towards the southeast by the outside face of the south east wall of the mill lade and that this boundary lies inter alia between two points and on a line drawn between these points on a plan produced by the pursuers, referred to as the LOY plan, no. 21/6 of process,
Title
[5] At the outset of the defender's reply to this submission it was argued that the issue of encroachment related to the determination of the boundary between the pursuers' property and that of the defender. It was a matter of title which fell to be determined by reference to the defender's title as one registered in the Land Register as compared with the title of the pursuers which was derived from what were termed sasine titles. It was therefore sufficient to look at the evidence in relation to the boundaries of the defender's property as that was established upon a consideration of the Land Certificate, being a copy of the title sheet in relation to that interest in land. This certificate had been issued to the defender following upon registration in terms of section 5 of the Land Registration (Scotland) Act 1979. In terms of section 3 (1)(a) of that Act, registration had the effect of vesting in the defender a real right in and to the interest so registered. In terms of section 6 the Keeper of the Registers was bound to make up and maintain a title sheet of that interest in land in the register by entering, amongst other things, a description of the land which should consist of or include a description of it based on the Ordnance Map. Thus the implication of this submission was that since registration of title created an indefeasible title, then, even if the description in the pursuers' sasine titles appeared to contradict that description based on the Ordnance Map, the registered title took precedence.
[6] The submission was supported by reference to two cases, Stevenson Hamilton's Exrs. v McStay 1999 SLT 1175 and Short's Tr. v Keeper of the Registers of Scotland 1996 SC (HL) 14. In my opinion, neither case supports the submission for the defender. In Short's Tr. Lord Keith, in his speech at p.22, observed that the two systems, namely, that for recording in the Register of Sasines and that by registration, rested upon entirely different principles. The latter system involved a guaranteed title with limited scope for rectification and a right of indemnity in suitable cases where rectification was not available, whereas with the Register of Sasines there was no room for rectification and "only the recording of further deeds or instruments can affect title." In Stevenson Hamilton's Exrs. the issue arose in relation to competing titles, the pursuers' title being derived from recording in the Register of Sasines and the defender's being later in date and obtained by registration. But the question before the court was not concerned with a boundary dispute. Indeed, as is clear from Lord Kingarth's opinion at p.1176, no criticism was made of the pursuers' case for reduction and rectification. The issue was limited to the relevancy of averments of loss and damage occurring after registration had taken place. The loss and damage was said by the pursuers to have arisen through the wilful acts of the defenders on the basis that registration was obtained by fraudulent or careless statements of the defenders. The question, therefore, was whether rectification should be retrospective to the date of registration. In that event the claim for loss and damage would be relevant. Lord Kingarth held that, in the general case, rectification would not have effect from the date when the entry was made. In the course of argument before Lord Kingarth, as recorded at p.1177, it appears to have been common ground between parties that registration in the Land Register gave the defenders the real right of ownership of the subjects, a right not qualified by the title recorded in favour of the pursuers in the Register of Sasines. The court was only referred to section 3(1). No argument appears to have been addressed to the terms of section 7(3). This provides that a title to a registered interest and a title governed by a deed recorded in the Register of Sasines should rank according to the respective dates of registration and recording. This suggests that an indefeasible right attached to each title at least until reduction or rectification took place.
[7] However, in the present case, parties do not join issue on the basis that both have title to the same area of ground. Indeed it is plain from the pleadings that the descriptions, to which each of the parties applies, are derived from titles recorded in the Register of Sasines. On a fair and proper reading of the defender's pleadings, in particular from averments made in Answer 2, her position is that the area of ground which is in dispute fell outwith the pursuers' property as particularly described in the 1976 disposition and that the title to Old Mill Cottage, formerly Stone Cottage, as described in the 1978 disposition, incorporates the disputed area of ground. This is made clear in the respective factual averments in the succeeding articles of condescendence and answers. The defender's position is that there has never been, at least since 1978, a wall on the south east side of the mill lade along the stretch where the new wall has been erected, that the three ash trees referred to in the pursuers' pleadings grow within the defender's property, that in 1976 the south east wall of the mill lade ran from the Old Mill building to a point just beyond the end of Old Mill Cottage, stopping short of these three trees, and that beyond the end of the south east wall the mill lade ran along a steep embankment which sloped down from the garden of Old Mill Cottage. It is further averred that in 1978 no physical feature indicated the demarcation between the mill lade and the ground on its south east side along the embankment and that the new wall is located within the line of the embankment, its foundations being dug into the slope of the embankment. Finally, the defender's pleas in law, though directed to a denial of encroachment upon the heritable property of the pursuers, do not stand upon a title derived solely from a registered title. That is to say, it is not suggested at any point in the defender's pleadings that there is any difference or distinction between the description in the prior recorded writ forming title to Old Mill Cottage and that in the now registered title in the name of the defender. In these circumstances, I consider that counsel for the pursuers was fully justified in submitting that there was no substance in the defender's submission that it was sufficient to consider the evidence as to title solely by reference to the description in the registered title to the exclusion of all the other evidence. I should add that, insofar as the evidence of the defender's witness, Mr. Andrews, was concerned, and it was upon this evidence that counsel for the defender founded, while he did make reference to the boundary description in the registered title and to the extent of the defender's property to be derived from that description, that evidence was directly linked to other evidence given by him which made reference to and comparison with the boundary descriptions in the earlier recorded titles. These, he said, supported his view as to the extent of the defender's property. As counsel for the pursuers said, if the basic submission in law for the defender was that her title to the disputed area was deduced from, and the extent of her property was to be found in, the Land Certificate alone and that this title defeated the pursuers' claim, even if their title to the same area was well founded upon their recorded title, then there was no hint of this case either in the pleadings or in the evidence. In my opinion, this is correct. The defender denies that the relevant boundary description in the pursuers' title is to be constituted by reference to a wall, which formed the south east wall of the mill lade and which ran along a line from the Old Mill down to join a wall on property adjacent to the defender's property at its north boundary. She asserts that there is no such wall, at least so far as it concerns the disputed area, and that the disputed area lies outwith the mill lade, which admittedly b
The titles
[8] While the pleadings of neither party specifically refer to the property known as the Old Mill Farmhouse, there was produced and referred to in evidence the feu disposition of that property by the Crown Commissioners in favour of Norman Leonard Smith. This deed is dated 15 December 1975 and was recorded in the Register of Sasines on 16 January 1976 ("the 1975 disposition"). It thus predates each of the feu dispositions to which the parties in the present action apply in determining the boundary dispute between them. In the 1975 disposition the description of the property is contained in the deed itself and is in the following terms
"All and Whole that piece of ground part of the Old Mills Farm ....bounded on the southwest by the access road hereinafter mentioned, on the northwest and again on the southwest by the garden ground of a stone cottage, again on the northwest by the southeastern bank of the Mill Lade, on or towards the north by the River Forth, on the north-east, southeast, again on the northeast, again the southeast and again the northeast by the remaining part of Old Mills Farm, declaring that where the boundary is the wall of farm buildings on the adjoining subjects the boundary is the outside face of such wall, and again on the southeast by the said access road, all as said piece of ground is delineated and bounded in red on the plan annexed and signed as relative hereto....(but which plan is not guaranteed by us the said Commissioners as correct)".
Accordingly, at the date when the Old Mill Farmhouse was disponed by the Commissioners, the Commissioners remained the proprietors of both the Old Mill, subsequently disponed by the Commissioners to the pursuers' predecessors, and of the Stone Cottage referred to in the above description, subsequently disponed by the Commissioners to the defender's predecessors. It is, therefore, important to have in mind, in my opinion, that when the Commissioners came to dispone the last two feus, they had already disponed the Old Mill Farmhouse and it is to be assumed that they did not intend in any way to derogate from that grant. It is also to be assumed that the Crown Commissioners intended that the boundaries of each of the Old Mill and of the Stone Cottage were in part to be mutual with those of the Old Mill Farmhouse. Equally important, in my opinion, is the fact that it does not appear that these properties had been similarly divided in the past. Accordingly, the conveyancer was contriving boundary descriptions without reference to any earlier deeds. This appears to me to be important in relation to Professor Fleming's evidence, to which point I return later in this opinion.
[9] When regard is had to the description contained in the 1976 disposition, so far as it is or may be relevant, it is in the following terms:
"All and Whole that piece of ground part of the Old Mills Farm......bounded generally on or towards the west northwest northeast and southeast by the River Forth again on or towards the northeast by the Mill Lade, again on or towards the southeast by the outside face of the south east wall of the Mill Lade, again on or towards the northeast by the outside wall of a stone cottage and line in range thereof ........all as the said piece of ground is delineated and bounded in red on the plan annexed and signed as relative hereto (which plan is not guaranteed by us the said Commissioners as correct)."
It is to be noted that the pursuers' title to the "Mill Lade" proceeds upon a boundary description introduced by the word "by" but it is not disputed that, at the very least, this is sufficient to bring the solum of the mill lade into the ownership of the pursuers' predecessor and hence of the pursuers.
[10] It is also convenient to note at this point the terms of the description in the 1978 disposition, as follows:
"All and Whole that piece of ground part of the Old Mills Farm .....bounded on the south west by the access road hereinafter mentioned and partly by subjects belonging to Gordon James Millar, on the north west by the south eastern bank of the Mill Lade and on the north, north east and south east by subjects belonging to Norman Leonard Smith, all as the said piece of ground is delineated and bounded in red on the plan annexed and signed as relative hereto (but which plan is not guaranteed by us the said Commissioners as correct)..."
[11] It is also to be noted that in the 1976 Disposition provision is specifically made that the feuars are taken bound at their own expense to "uphold and maintain...the north west wall of the Mill Lade and the Mill Lade" but it is declared that they "will have no responsibility for the maintenance of the south east wall of the Mill Lade which is excluded from the feu". Likewise, in the 1978 Disposition provision is specifically made that the feuars shall at their own expense "uphold and maintain..... the south east wall of the Mill Lade" but it is declared that they will have "no responsibility for the maintenance of the north west wall of the Mill Lade and the Mill Lade which are excluded from the feu". On the other hand when regard is had to the terms of the 1975 disposition, no reference appears in the deed to "the south east wall of the Mill Lade" or to any obligation to uphold and maintain it.
[12] It is clear from the foregoing recital that the descriptions in the founding writs for each of the Old Mill and Stone Cottage properties are bounding descriptions which refer to a plan which is demonstrative only and is not taxative. It was submitted for the pursuers, and I did not understand it to be disputed for the defender, that the words of the bounding description prevail over the delineation on the plans where they differ (see for example Currie v. Campbell's Trs. 16 R 237: Drumalbyn Development Trust v Page 1987 SLT 379). Furthermore, it is not in dispute that there is no credible evidence of a "south east wall of the Mill Lade" which ran along the whole length of the mill lade at the level of the waterline (however that might be defined) of the mill lade from the buildings forming the Old Mill and Stone Cottage down to the point where the mill lade merged with the River Forth. I take it to be settled law that the general rule of construction is that what is described as the boundary of a feu in the feu disposition which creates it, is by that very fact excluded from the feu (see for example Lord Rutherford Clark in Currie v Campbell's Trs. at p. 241 approved in Houston v. Barr 1911 SC 134: Fleming v Baird 3 D 1015). But the general rule is not absolute (see Lord Dundas in Houston v Barr at p.140). Circumstances may occur under which counter presumptions arise. This may be so where the same proprietor dispones separate but adjoining areas of ground.
[13] In order to determine the issue between parties it is necessary, in the first place, to consider the evidence as to the state of the area along which the mutual boundaries between the three separate properties, the Old Mill, The Old Mill Farmhouse and Old Mill Cottage, ran. In doing so it is necessary, in my opinion, to have in mind that the relevant boundary description is linked to the feature which is termed "the mill lade". There is no dispute that, so far as the bed of the mill lade is concerned, no part of it was disponed by the Crown Commissioners in either of the 1975 or 1978 dispositions. In each disposition the mill lade is mentioned in the description of the boundary between the disponers and the disponee. But the same terms are not used in each description. There was no dispute that the mill lade, being an artificial feature, had been constructed with the purpose of enabling the mill to operate by means of water power. Furthermore, as Professor Fleming explained, his initial interest, when instructed in about 1993 in connection with a litigation between the pursuers and the owner of the Farmhouse, was with the lade and the effect of erosion, the litigation being consequent upon the building of the levees both upstream and downstream of the Old Mill. For that purpose he had visited Craigforth about four times between 1993 and 1994.
[14] Counsel for the pursuers accepted that it was relevant and appropriate to look not only to the founding writs for the parties but also to the founding writ for the Old Mill Farmhouse. This concession could hardly be withheld since, as noted before, the bounding description in the Old Mill founding writ was intended to match, at least in part, the bounding description in the founding writ for the Old Mill Farmhouse, just as much as was the bounding description for the Stone Cottage intended to match the bounding description for the Old Mill. Moreover, the first conclusion for the pursuers, as amended at the conclusion of the proof, seeks declarator that the defender has encroached on the heritable property of the pursuers, namely the bed and bank (these last being the words added at the conclusion of the proof) which forms part of the Old Mill, Craigforth, described in and disponed by the 1976 disposition. It is averred that the boundary between the pursuers' and the defender's properties lies on a line between two points A and E on the plan No. 21/6 which was appended to the summons in this action. It is not in dispute that this line ends at the boundary between Stone Cottage and the Old Mill Farmhouse at a point where the assumed outside face of the south east wall of the mill lade would join and continue into the existing retaining wall of the Old Mill Farmhouse. Indeed, it was plain from the tenor of the evidence of certain of the witnesses, that the existing retaining wall of the Old Mill Farmhouse was regarded by them as forming part of the south east wall of the mill lade. The question that falls to be asked is whether, looking to the founding writs for the Old Mill Farmhouse and the Old Mill, there is any warrant, on the face of the descriptions in those writs and, so far as is competent, on the face of the plans annexed to them, to hold that the retaining wall conformed to the description of the boundary as being "by the bank of the mill lade". Those words of description, if looked at in isolation, can serve to exclude the "bank" from the subjects disponed by the 1975 disposition since they would necessarily exclude from the subjects disponed any thing which would form a bank, such as a wall or, as in Fleming v Baird, a towpath. However, reference to a river which was tidal would generally serve to exclude only that part of the bank which lay below the level of the high water mark. When regard is had to the plans attached to each of the two deeds, on each of them there is a line which is readily and distinctly identified as representing the retaining wall of the Farmhouse. On each of the plans that line runs approximately parallel to and distinctly separate from another line which on each plan represents the boundary between the Farmhouse and the Old Mill and which can be readily and distinctly identified as the normal tidal limit within the river Forth and the mill lade. It is to be remembered that in Fleming v Baird the word "bank" was construed in the particular circumstances of the grant. Thus the Lord Ordinary, to whose interlocutor the Inner House adhered, said this:
"The subject feued to the defender appears, from the descriptive clause of the feu-right, to have been a certain lot of ground, described as extending on the north 30 yards or thereby, along the south bank of the canal, meaning, by these words, along the exterior line of the towing-path, which is formed on the top of the said south bank. That is clearly the fixed boundary on the north, because, of course, it never was meant that the feuar should enclose the towing-path. Then the east boundary is also expressly stated to be 'a straight line drawn from the south bank of the Great Canal...'. That is also a point clearly ascertainable; the terms "south bank of the canal"' here as in the other boundary, meaning tow-path (which truly forms the south bank,) and the measurement must commence from the exterior line of that path, as it is too plain for argument, that the feuar could not enclose or occupy any part of the towing-path........The pursuer appears to labour under two errors in the views under which he commenced the claim now maintained by him. In the first place, he contends that the measurements should commence and be computed from the water line of the canal, but the Lord Ordinary is clearly of opinion that this is not an admissible construction of the boundary. The term used is the 'south bank' of the canal: and it is self-evident that such a boundary must be measured from the outside of the bank furthest from the canal, as the bank no longer belonged to the superiors, but to the Canal Company."
In Currie Lord Rutherford Clark was careful to qualify the generality of his observation in two particular circumstances, namely where the boundary is a river or a wood. No doubt when a piece of ground is said to be bounded "by" a physical object, such as a wall, a fence or a ditch, no part of the boundary is conveyed. But every boundary must be read with due reference to the nature of the subject. Thus a mill lade is not a physical object in that same sense as a wall, a fence or ditch, unless it be that it is specifically kept within its bounds by a defined structure such as would be a wall. It conveys water just like a river and, in the present case, it was subject for its water level not merely to any operation of the mill system itself but also to the level of the River Forth and of the tide. The undisputed evidence given in the course of the proof made clear that the mill lade lies within the tidal limits of the River Forth. Since the function of the channel of a mill lade is to be covered with water, it is the function of its banks, where they are natural and not artificial, as would be a wall, to restrain the course without being covered by it. The evidence of Mr. Andrews was to the effect that on all editions of Ordnance Survey mapping available until the survey of April 1995 (which took place after the construction of the downstream levee) and which he consulted, the course of the mill stream was shown with the tidal limit flowing to the wall of the Old Mill. The earliest edition consulted had been the National Grid Series revision of 1972. He also said that this had been the position in the earliest map which he had consulted. This was the County series for Stirlingshire revised in 1918. As depicted on the most recent Ordnance Survey maps, the mill lade was, for the greatest part of its length including that which ran along the downstream face of the downstream levee, prescribed by a line which represented the normal tidal limit (NTL), being the limit in a tidal water channel defining the highest point to which mean spring tides flow at high water. This line was also coincident with the line representing the normal tidal limit of the water within the mill lade in each of the earlier Ordnance Survey maps and, according to Mr. Andrews, generally with the line which appears in the founding writ to the pursuers' title as the line depicting the south eastern boundary as it extends along the length of the Old Mill Farmhouse property. I found Mr. Andrews' evidence on this matter wholly credible and reliable.
[15] It seems to me that a crucial issue in the present action is where the point at which the conjunction of the Old Mill Farmhouse property, the Old Mill property and the Crown Commissioners' remaining property falls to be fixed by reference to the descriptions contained within the respective founding writs for the Old Mill and the Old Mill Farmhouse. To identify that point it seems to me that it is relevant to have regard to the fact that, on the face of the plans attached to both writs, there are two lines which lie between the depiction of the Farmhouse and the mill lade. It is also pertinent to have regard to the fact that the line nearer to the Farmhouse was consistent with the line of the Farmhouse retaining wall and fell within the Farmhouse property. In addition, the line further from the Farmhouse continues as a line depicted within the Commissioners' property and extends as a continuous line up to the Cottage and to the Old Mill. It is also a line which, as drawn, would for much of its length be consistent with that which would represent the extent of the mill lade judged by normal tidal limits. The same line also serves to represent the boundary where each property is said to be bounded "by the River Forth". However, on the plan to which the pursuers apply in seeking declarator, it is a line running to a point which would correspond in general to the point at which the retaining wall crosses over the line of the boundary between the Old Mill Farmhouse and the defender's property, that, it is claimed, represents the boundary between the property of the pursuers and that of the defender. That point, as all the evidence, both oral and photographic, makes clear, is at the top of the slope which rises from the bed of the mill lade. It is at the top of this slope that the pursuers claim that there was a wall running from the boundary to the point close to Stone Cottage which formed what was to be distinguished as the continuation of, and hence part of, the south east wall of the mill lade.
[16] The evidence in relation to this claim, which is disputed for the defender, comes from observations and deductions made by both professional and lay witnesses. It is not in dispute that there are the remains of a wall running alongside and close to the rear of Stone Cottage which can properly be termed a "wall of the mill lade" and lying on its south east side. This wall rises vertically from the mill lade which at the rear of the Cottage runs between this wall and a wall on the opposite side. The two walls thus form the tail race referred to in Professor Fleming's report. An essential feature of the tail race was to provide a fall sufficient to enable the water to flow freely downstream away from and not to build up at the back of the water wheels, thereby affecting the efficiency of the wheels. There was no dispute in the evidence that the line of this south east wall could be traced as far as the inner side of the levee constructed on the downstream side of the mill lade. It was further not in dispute that there was no trace of any wall having existed on a line downstream of the levee approximate to the line on which lies part of the wall constructed by Mr. Watson, the defender's partner, which is said to form the encroachment on the pursuers' property. It was also not in dispute that the mill lade downstream of the downstream levee was tidal. The substantial question in the case was whether it could be demonstrated on a balance of probabilities that there had ever been a wall in existence constructed in connection with the mill lade, which could properly be described as the south east wall of the mill lade and which lay on a demonstrable line running at least as far as the south west boundary of the Farmhouse property.
[17] Before considering the evidence in detail, it is convenient to consider the evidence of Professor Fleming about the design of the mill lade. He gave evidence, under reference to his report, with expertise covering the specific subject areas of hydrology and river engineering and with a particular interest in old water mills. He was instructed on behalf of the pursuers in August 1996 to give his opinion on a number of issues. These included, as set out in his report, the following issues, namely, "encroachment of neighbouring wall into (the pursuers') property". In his report he attached certain photographs of the mill lade downstream of the Cottage as it was in 1994 and again in July 1997 after the construction of the offending wall. He also proceeded upon the basis of two drawings produced for the pursuers by LOY Surveyors Limited in April 1997 showing the position of the offending wall and a further drawing taken from OS map NS7695-7795. This last drawing was said, in his report, to show the original layout of the mill lade. In evidence, he explained that the lines would show the width of the bed of the lade. He further based his opinion, in relation to the two issues to which he addressed his report, on the fact that, historically, to allow the mill lade to operate, it would need a clear exit channel which was "hydraulically efficient". In his report, consistent with his evidence in the witness box, he said that the original layout of the mill lade was constructed to allow free flow of water downstream. In his opinion, the construction of the wall clearly encroached into the lade and would affect its hydraulic efficiency by obstructing the flow. It was not a design feature of the original mill system. He went on to explain that, in his opinion, the wall restricted the free drainage of the mill lade at times of high flow "due to the significant reduction in the width of the present lade compared to the width in March 1994", as demonstrated by photographs taken in March 1994 and again subsequent to the construction of the wall. As he explained in evidence in chief, the effect of the new wall was to change the slope at that point from a sloping to a vertical bank and accordingly to change what he termed the geometry of the channel and so take away part of the cross section of the lade. Under reference to the LOY drawing no. 21/6 and what was there termed "assumed line of SE Wall (Mill Lade)", he said in evidence in chief that it was the line that he would anticipate that a wall would follow on top of the bank, with the bank of the mill lade running from the assumed line to water level in the lade. He noted that downstream of the downstream levee the banks on either side were sloping and so formed a profile which he termed trapezoidal. He agreed that the height of the banking below the downstream levee on the north west side of the mill lade was lower than that of the south east side. He further noted that downstream of the wall beside the Farmhouse, there was a similar profile. However, he was not able to say that he had seen anything at any time which he distinguished as the line of a continuous south east wall of the mill lade. In re-examination he contented himself with saying that if there had been a continuous wall, the place where it would normally be built was on top of the bank of the lade. He further agreed that where the mill lade took on a trapezoidal form, there was then no need for a wall of the kind which had been constructed on both sides immediately below the mill. He also agreed that, as shown on the Ordnance Survey map, the Farmhouse retaining wall was not coincident with the edge of the mill lade. What is of some importance is the fact that he had visited Craigforth on some four occasions in about 1993 to consider the issue of erosion but had not observed anything physically to suggest the continuance of a wall in the disputed area.
[18] The LOY drawing was spoken to by Mr. Hunter, a Chartered Surveyor. In 1999 he had checked the original survey for the drawing carried out in April 1997 by the witness Mr. Smith, which was the one referred to by Professor Fleming in his report. That was the drawing, no.21/7. He had incorporated certain features which were not present in the original drawing. These included a stone embedded in an ash tree growing out of the bank downstream of the downstream levee immediately beside the point where the new wall built by Mr. Watson terminated in an unfinished state. This is depicted in a number of photographs, including two taken in April 1997 (e.g. nos. 21/35/8 & 10) as having three trunks. He also explained that the blue line appearing on the drawing represented the edge of the bottom of the bank of the mill lade. This drawing was available to Mr. King, a Chartered Surveyor, who spoke to his report (no. 21/9). The report was prepared after an inspection of the pursuers' premises and the surrounding area in September 1997 and again in January 1999. His instructions were to form an opinion as to whether the new wall followed the original boundary and to identify the estimated route of the former wall. He was provided with a copy of the 1976 disposition and the attached plan. He took note of the description of the south east boundary contained in the deed. At the time of his first inspections he noted a large stone lying in between two trunks of the ash tree at the point shown in the photograph no. 21/35/8. The stone appeared to him as possibly a former gate post. It rested on an area of what he termed in the report as a decayed, and in evidence as a dilapidated, wall. This consisted of a pile of bricks and stones which did not appear to have been laid in a careful manner. This was what he termed the remaining physical evidence of a wall. The tree had partially grown around it. By reference to a photograph G appended to his report he expressed the view that the south east wall appeared to bend to the right as it approached the ash tree. He had extended a line from the large stone to a point at which it met the Farmhouse wall as representing his best estimate of the line of the south east wall of the mill lade. This was shown as a dotted brown line on the LOY drawing prepared by Mr. Hunter. He had, however, had cause to review the point at which the line joined the Farmhouse wall. This wall he referred to as a multifunctional, retaining wall. He accepted that this wall continued southwards beyond the point at which the dotted brown line joined it. His preferred line was, therefore, to carry the extended line southwards from the point shown on the LOY drawing to the end of the Farmhouse wall. He noted that a line of stones running along the rear of Stone Cottage shown in photographs nos. 21/35/2 and 3 taken in the winter of 1988-1989, appeared to indicate the top of an old wall. He had seen a number of mill lades and had noted that they tended to open out in order to let the water run away. He regarded the whole area enclosed by the brown dotted line as the mill lade. In cross examination, he agreed that he had regarded the Farmhouse wall as part of the south east wall of the mill lade as he did the wall at the back of the Cottage and that he assumed that there was a wall which would have followed round between them. However he agreed that it was possible, though highly unlikely, that there had been no wall between the stone at the ash tree and the Farmhouse wall. He had examined old Ordnance Survey maps of the area and no wall was shown between those points, although the Farmhouse wall and the wall behind the Cottage were shown.
[19] Mr. Semple, a civil engineer, was instructed to visit the property on 28 August 1997 in order to inspect damage which had, at that time, been done to the downstream levee and which he estimated to have lowered the levee at the point of damage by some three feet. It could be breached by the tide at that point. In the course of his inspection he was concerned to advise upon temporary works for the repair of the levee. He was responsible at that same time for taking the photographs, nos. 21/35/42 and 43. These temporary works were subsequently executed at the beginning of October 1997. When these works were instructed, another civil engineer, Mr. McVittie, visited the site and in consultation with Mr. Semple a report dated 1 October 1997 was prepared. This defined the area of damage as lying on the downstream side of the levee and on towards the ash tree close to the point to which the new wall, which gives rise to this action, had been built. This area is identified in a manuscript note, no.21/20, which refers to the tree and beside it to "building rubbish & wall". He said that he observed there what appeared to be the old lade wall. This he referred to in his reports then and later in December 1997 as "the boundary wall". He considered that the damage had been caused to much of the boundary wall and the top of the levee where it had formerly abutted the wall. He identified a large stone, which appeared by the ash tree, as possibly a coping stone which formed part of the wall below it and which had been there for some considerable time. He indicated that as a wall to form a lade wall, he would expect that it to have extended down to the foundation of the lade itself and would not expect it to be built half way up the bank. In cross-examination, he agreed that he had not been involved in the design or construction of the levee system. At the area of damage identified in the photographs taken by him, he stated that he believed that the stonework at that point formed part of an old wall from which some courses of stone extending down about two feet below the crown of the levee had been removed at the point where the levee abutted the wall. He was referred to photographs, nos.19/4 and 21/35/18 and 19. He agreed that these appeared to show stone-pitching such as suggested a man-made bank. This could have been there as a feature since the construction of the mill lade. In re-examination, he explained that there might still exist at or about the point E along the line B to E, a wall which tied in to the existing Farmhouse wall over its full height.
[20] Mr. Diack, whose firm carried out the temporary repairs at the damaged area, said that he was only at the site on one occasion in October 1997 for that purpose. However, he spoke to the temporary works which were carried out by way of placing sandbags in position in the damaged area. In cross-examination he referred to there being an area of brickwork from which the sandbags ran. Under reference to the photograph, no. 21/35/45, he described the ash tree as having grown up round the wall.
[21] At this point it is pertinent to consider the evidence given by two defence witnesses. The first was Mr. Badenoch, a civil engineer. He had been engaged to give evidence in the course of the earlier litigation between the pursuers and the owner of the Farmhouse. At that time he had visited Craigforth for the purpose of preparing drawings of the mill lade and, in particular, of its cross-section at various points along its length. Of particular relevance is his drawing in no. 19/4, dated November 1992. This was a cross-section taken through the mill lade and island at a point approximately 12 metres below what is termed the lower dam, that is, the downstream levee. By reference to a location plan it is apparent that the cross-section is some distance downstream of the ash tree. This was confirmed by the witness in evidence. He described the bank as appearing to be very stable at the point at which the cross-section was taken. At the point at which he took measurements, the island bank was composed of a rock outcrop and on the opposite side comprised mainly "stone pitching" which was interrupted just under half way up the bank by a relatively level area about 1 metre in width described as "paving slab". He measured to the top of the bank but did not look beyond. He was not conscious of any wall on top of the bank or of any obstruction appearing above ground level.
[22] The second witness was Mr. Morrison, a chartered surveyor, who had visited the Cottage at the time of the earlier sheriff court litigation. He had been concerned to inspect the wall at the Farmhouse. He noted that the wall did not follow the line of the lade at that point. Its line and height led him to conclude that it had been built in conjunction with the Farmhouse which he had understood to be built in 1731, that is to say some time after the construction of the Old Mill. His inspection had been detailed. It had led him into the Cottage, whose garden at the time was "just a wild garden". He had seen that the Farmhouse wall at its southern end continued along something of the same line. It appeared to be a garden or rockery wall. This line, if extended, would have carried on to the south east end of the Cottage gable or pass it at its roadside. It did not coincide with the brown line on the LOY plan. There was nothing to indicate that there was any wall at or about the line shown on that plan or anything as indicating the remains of an old lade wall.
[23] Of the lay witnesses the most significant evidence was that of Robert Johnston, who gave evidence for the defender. He was a farmer and tenant of a neighbouring farm, Kingspark Farm. He was a friend of Mr. and Mrs. Allison. After they bought the Cottage he had assisted in repairing a part of a wall at the corner of the Cottage where erosion had taken place. He referred to a problem with mink having got in under the Cottage. The previous owners had done nothing to arrest the erosion. He had helped Mr. Allison to build a wall at the point where erosion had taken place using stone which he had collected from Kingspark Farm and had taken down by tractor and trailer. He identified a part which he had assisted in building. He was also shown photograph no.21/35/28. This shows an original part of the mill lade wall behind the cottage and, on its outer face, part of a wall which then runs into and is concealed by the upstream face of the downstream levee. He said that he had not been responsible for building that part which must have been erected by Mr. Allison. However, he was then shown a photograph of the ash tree. This he identified as being used as an anchor to hold big stones such as shown in photograph no.21/35/42. He said that the top stone was a sandstone gate pillar that had been brought from his farm. There had been no existing stones at the point at which it was placed. The stones there had been tumbled in and then put in place by pinch bar. Under reference to photographs in no. 19/5, he recollected, in particular, placing some old field gate pillars in place lengthwise to provide anchorage against erosion at a point near the corner of the cottage and short of the ash tree where there had been substantial erosion and a big bit scalloped by erosion. At that point there had been an existing part of an old wall. After the work had been done to stabilise the point at which erosion had taken place, garden soil was put in place. In cross examination, Mr. Johnston said that he assumed that the mill lade wall had carried on down to the Farmhouse as something to retain the Cottage garden. He recollected that Mr. Allison had built steps down to the lade but was not clear as to whether this was from the wall or on the bank.
[24] Mrs. Allison spoke to the wall behind the Cottage as going right down to the water when she and her husband moved into the Cottage. This stone wall had extended from the Old Mill right down to the Farmhouse. She said that at a point about half way down it had tumbled down and had been built up to the level from which it had fallen away by her husband at the point at the corner of the Cottage. She identified this by reference to the photograph, no. 21/35/28. Mr. Johnston had parked material there and built it up. She described steps which were on the banking and went down to the lade. From there she could cross to the island. These had been put there by her husband. She identified the stone wall as being at a point shown in a photograph, no. 19/5/AA. In cross examination and under reference to the photograph, no.21/35/5 (showing the wall behind the Cottage where it is within the downstream lade) she said that from the Cottage the wall bore right and continued on towards the Farmhouse and that the part built up by her husband had been by the oil tank at the rear of the Cottage shown in the photograph. In re-examination, she appeared to suggest that the wall that continued down to the Farmhouse wall, was down beside the lade.
[25] Mrs. Summers in her evidence indicated, under reference to the photograph no.21/35/18, that she had observed a wall beyond the ash tree which continued towards the Farmhouse boundary on the line of the wall shown in the photograph by the tree. Under reference to photograph no. 21/35/8, which also showed the ash tree, she described the bank as having been covered with vegetation and trees prior to the building of the new wall. Under reference to the plan no. 21/7, she said that when she and Watson first discussed the building of a wall, there was already a wall existing in places, though not in a straight line, along the line D to E on the plan. This wall had "places where you could see it" and bits which had "tumbled down". In cross-examination, she described the bank as steep, greatly eroded and stepped at the point where the walkway proceeded down the bank. She said that when the downstream levee had been constructed in about 1989 to 1990 it had been brought up to the wall. A fence was then erected at the boundary. Subsequently this had been removed by Mrs. Allison.
[26] Dr. Douglas Cumming, Mrs. Summers' brother, described a wall downstream of the downstream levee which appeared continuous but was covered up with soil and vegetation. In some parts the wall could be seen to a depth of about 18 inches and in other parts the soil was up to the top of it but the stonework could be seen. At the part before the ash tree there was a drop of about 4 to 5 feet. He estimated that the wall extended downstream from the ash tree to the end of the Cottage property where it joined what he termed a continuation of the wall downstream at the Farmhouse property. He had become aware of the wall from walking along the bed of the lade on occasions. His impression was that the ash tree appeared to have grown up through the wall at which point the remains of the "lade wall" could be seen being about two to two and a half feet deep. In cross-examination he explained that looking up from the lade the wall could most clearly be seen at the Farmhouse but that elsewhere just the tops of stones could be seen where there was banking rising about 12 to 13 feet with the remains of a small part of a wall at the top. The cottage garden came to where this wall was.
[27] The defender herself described the state of the garden at the time when she bought the Cottage as being poor, with the level area of the garden extending to the bank. She could not recall any wall between the garden and the bank and said that if there was one it was very overgrown. In cross-examination she agreed that she had never looked for any traces of a wall at that point.
[28] Mr. Watson was the partner of the defender. He came with the defender to live in the Cottage when it was bought by the defender. He was referred to photographs nos. 21/35/42 and 43. He said that there were then the remains of a wall which extended from the downstream levee to the ash tree. He described this as mere lumps of masonry placed to form a wall and which appeared to have been put up in the recent past. It was not built in the same manner as the wall immediately to the rear of the Cottage, which he described as a dry stone dyke type of wall. When he had been preparing to build the new wall, he had cleared the banking downstream of the ash tree. He had found no trace of a wall at the top of the bank. The garden ground just sloped down the bank. When he came to build the new wall, he had permission from the adjacent proprietor to build out from the Farmhouse wall. The Farmhouse wall extended into the Cottage garden, as was demonstrated in photographs, nos.19/5 I and J. The boundary between the Farmhouse and Cottage was marked by wooden fencing. This wall ended in a large stone about 3 feet into the Cottage garden. Subsequently, he had carried a wall from the boundary to a point short of the ash tree as shown in photographs no. 19/5 I and O. Mr. Watson agreed that he had removed certain stones in the area where sandbags had subsequently been placed by Mr. Diack's firm. These stones were those shown, in particular, in photographs no.19/5 B, C , D and G. They lay at right angles to the line of the mill lade. When these stones were removed, he had found below them a septic tank as was shown in photograph no. 19/5 E. The stones lay on a mixture of soil and rubble which surrounded the septic tank. At that time Mr. Watson had been engaged in digging a trench towards a septic tank within the Cottage garden which was to serve both the Cottage and the Farmhouse.
[29] For the pursuers, it was submitted that the thrust of both the professional and the reliable lay evidence was that the south east wall of the mill lade had been in existence prior to the disposition of the Farmhouse and of the Old Mill by the Crown Commissioners in 1976. Particular stress was laid upon the evidence of Professor Fleming, as also of Mrs. Summers and her brother, Dr. Cumming who spoke to seeing a wall running down to the Farmhouse.
[30] I do not find that the evidence of Professor Fleming supports the existence of a wall to the mill lade which continued downstream of the levee and met up with the Farmhouse wall as a necessary part of the mill lade system. He accepted that downstream of the Cottage the mill lade system appeared to present the trapezoidal appearance for which a wall was unnecessary. Professor Fleming was not able to assert that the Farmhouse wall was necessarily a part of the original mill lade system. At best he indicated that, if there was a wall, its probable line was on the line for which declarator is sought. While he appeared to refer to traces of a wall going upstream from the end of the Farmhouse wall, this was entirely consistent with what was to be seen of the wall as it extended into the Cottage garden. That being so, the evidence of Mr. Morrison is of importance. He spoke to the Farmhouse wall as having been constructed as a retaining wall for the Farmhouse itself which had been built subsequent to the construction of the mill and its lade system. Furthermore, it is plain from all the evidence that the Farmhouse wall does not run parallel to the mill lade. In this regard, I find it significant that the evidence of Mr. Andrews, who spoke to his examination of the Ordnance Survey and County maps back to 1918, was clear that the Farmhouse wall was defined on those maps separate from the depiction of the mill lade and that the line was traced away from the mill lade to a point on the landward side of the Cottage. This was consistent, according to his evidence, either with a continuing wall or even with a hedge. There was no line which accorded in any way with the line of a wall to which the pursuers' declarator is directed. Of more significance, however, is the evidence of Mr. Badenoch and Mr. Morrison as to their investigations on the Cottage property for the purpose of the earlier sheriff court case. While that case did not concern the present issue, namely, the existence and line of a mill lade wall continuing down to the Farmhouse wall to form what, on the pursuers' case, must have been a single continuous wall, both witnesses made an examination of the banking. Mr. Morrison, in particular, found nothing at the top of the bank to denote a wall of the character of a mill lade wall having been there. What Mr. Badenoch found was banking of a formation and character which was entirely consistent with the trapezoidal shape to which Professor Fleming referred and one which, as Professor Fleming conceded, did not require a wall to be constructed at its top. It seemed clear to me that those who in evidence suggested that there was such wall, were proceeding on the view that the Farmhouse wall was itself not merely a retaining wall for the Farmhouse but also was what remained of a continuous wall running down from the rear of the Cottage to the northern end of the Farmhouse wall. This was a wall which, according to Mr. Semple, would have extended down to the same depth as the Farmhouse wall, and so to the level of the mill lade itself along its length. It is at this point that I find the pursuers' evidence curiously lacking in substance. No evidence was led about the actual construction of the downstream levee and, more particularly, about the manner in which it was made to abut the ground on the Cottage side. It is plain, from the various photographs of that area that on its upstream side the levee abutted a portion of wall which on the evidence, particularly of Mr. Johnston, I accept to have been constructed by the late Mr. Allison. Furthermore, I accept the evidence of Mr. Johnstone that at that stage Mr. Allison was intending to repair an area of damage to the rear of the Cottage which threatened the stability of the Cottage. His evidence was clear that, for that purpose, material, including large stones which had come from his farm, was also placed along to the ash tree and that one of the stone
[31] I am, however, fortified in my conclusion that the pursuers have failed to demonstrate that any mill lade wall extended much beyond the line of the rear of the cottage and certainly not down to and beyond the ash tree to join with the Farmhouse wall, by a separate consideration. This arises particularly from the evidence of Mr. Andrews and from the relevant descriptions in and plans appended to the various dispositions by the Crown Commissioners. Mr. Andrews demonstrated that the lines that appear on the various deeds are readily to be interpreted as the line which on the Ordnance Survey plans would represent the normal tidal limits within and outwith the mill lade. A mill lade, or lead, is by definition a channel by which water is led to and away from a waterwheel. Its purpose, just like a stream, is to carry water and it is restrained by its banks. It is the channel for water which is of importance. For that reason it is sensible that the owner of the Old Mill should be granted the property in the solum of the mill lade and with it a corresponding obligation to maintain the channel and keep it free from obstruction. Equally, it is consistent with this same obligation that an adjacent proprietor who retains ownership of a wall to the mill lade, should be made subject to an obligation to maintain the wall and so prevent it from obstructing the free flow within the channel. But a riparian owner, in the case of both tidal and non-tidal rivers, has the exclusive right of using the bank for access or otherwise and his right does not depend upon ownership of the bed of the river (see Rankine on Landownership p.285). In the present case the solum of the mill lade is specifically excluded from the property of the defender. The mill lade, like a stream, is a channel the extent of which would be determined by the land which it covers in the ordinary floods (see Rankine supra p.541). Where that channel is subject to tides, I consider that this principle would allow the solum of the channel to extend to that area which is covered by water at normal tidal limits. Thus the boundary limits of the mill lade would be determined by the same tests as would apply to the river up which the tide flowed. When regard is had to the plans attached to the dispositions, the lines depicting the boundary with the River Forth are continuous with those which are identifiable as depicting the mill lade downstream of the Old Mill. If the term mill lade is interpreted as meaning the channel, the extent of which is determined by the land which it covers, this would exclude the south-east wall from its extent. In that the wall was built up from the level of the edge of the channel, it would be correct to say, as the pursuers do in their pleadings, that the wall runs along part of the bed of the mill lade. This is also consistent with the specific declaration in the 1978 disposition that the proprietors of the Cottage will have no responsibility for the maintenance of "the north west wall of the Mill Lade and the Mill Lade which are excluded from the feu". Again, when regard is had to the manner in which the boundaries of the Old Mill are described, and in particular the north east boundary as "by the Mill Lade", it is plain that the conveyancer intended that the mill lade was to be included within the area of ground disponed. But there is no doubt that at the point where the mill lade merges into the River Forth it has no walls on either side. Its channel is contained within the banks on either side and these continue to form the banks of the River Forth. I consider that this again is consistent with a disposition of the channel of the mill lade alone and, accordingly, of that area of ground covered by it so far as it continued from the north east limit of the mill lade south eastwards to the point where there was a wall delineating the south east edge of the channel. It was not necessary to specify
[32] In the course of his submissions counsel for the pursuers made reference to the determination in the sheriff court action. He submitted that it was of limited value. It was between different parties and the issues had not principally been concerned with matters of title. In the end of the day the pursuers were assoilzied from the craves of the initial writ. The boundary issue, so far as it was of moment, concerned two titles, namely the Farmhouse title, the 1975 disposition, and the Old Mill title, the 1976 disposition. While the sheriff did consider the question of where the boundary lay as between the two properties, and did so with the benefit of evidence, he did not have the benefit of any detailed surveying evidence directed to the issue. That was undoubtedly so. However, the sheriff did have put before him evidence as to the age of the Farmhouse retaining wall and the purpose for which it was constructed to which I have referred earlier. It was submitted that I should have regard to the fact that the LOY survey plan, no. 21/6, was much more accurate than the Ordnance Survey plans attached to the relevant feu dispositions. Insofar as the LOY survey plan was based upon measurements using a theodolite with an electronic distance measure built in to it, as the witness Mr. Smith described, then I accept that this is probably so. But the LOY survey plan is significant in that it clearly distinguishes with a blue line a feature which is again distinguished from the Farmhouse retaining wall. The blue line was identified by Mr. Hunter as the edge of the bottom of the bank of the mill lade. Whatever the degree of precision achieved by the LOY survey plan in April 1997 as compared with the Ordnance Survey plans which were attached to the relevant feu dispositions, the fact remains that there was a clear distinction made on the plan attached to the 1976 disposition between the same features, namely the Farmhouse retaining wall and a continuous line running from the River Forth up to and behind the Cottage as far as the Old Mill. All of these features were capable of being identified as features which had a very substantial prior degree of permanence and could be readily identified: in the case of the continuous line, this could be identified by reference to the tidal limits of the river and the mill lade channel up to the south east wall of the mill lade. I would only add that counsel also sought to find support in Professor Fleming's comment that the title plan in the 1975 disposition was not accurate because it did not show the mill lade close enough to the Farmhouse. But the important fact, and his evidence supports this, is that the boundary line is clearly distinguished from the Farmhouse retaining wall in the plan. This accords with the text of the description in the deed which makes no reference to a wall as forming any part of the boundary between the Farmhouse property and the remaining area then belonging to the Crown Commissioners.
[33] Some emphasis was also placed upon the manner in which mill lade was designed to operate as explained by Professor Fleming. This was based upon the inference which was sought to be drawn from the photographs, nos. 21/35/2 and 3, which were taken in the winter 1988/1989, and the photograph A taken by Mr. King on 5 September 1997 (appended to the report no. 21/9), allied to the evidence of Mr. Summers and Mr. King who respectively described a "kink" or a "curve" in the formation of the ground downstream of the Cottage on the right bank. It was said that since the purpose of the mill lade downstream of the inner chamber of the mill lade was to allow the water, whose function was spent, to dissipate quickly down the lade and so avoid any back flow, it made no sense to keep the lade narrow at the point where the lade flowed from the downstream levee. But, as indicated before, the same function is served by the adoption of a trapezoidal shape. While it was not precisely commented upon in the evidence, the reference in each of the 1976 and 1978 titles to an obligation related to the maintenance of "the north west wall of the Mill Lade and the Mill Lade" and of "the south east wall of the Mill Lade" respectively, suggests that these walls served a similar function. In the case of the north west wall, as the LOY survey plan, for instance, demonstrates, this wall terminates and then turns at right angles away from the mill lade at a point approximate to the end of the inner mill lade. It is equally consistent with the need to allow water to dissipate quickly from the mill lade that this be achieved by way of the cessation of the opposing wall along the inner mill lade approximate to the end of the north west wall and the opening out of the lade by way of simple banking thereafter, bearing in mind that, as is plain from the photographic evidence and as Professor Fleming accepted, the banking on the right side is materially higher than the banking on the opposite side of the mill lade. This is consistent with an element of the evidence of Mr. Andrews. He accepted that Ordnance Survey maps were not concerned with private property boundaries. Rather, as stated in his report no. 19/9, the purpose of such a map was to depict, within the limitations imposed by the particular scale and in accordance with the rules and conventions adopted by Ordnance Survey which were in being at the time, the topographical features in existence at the time of survey or revision. His evidence was that on none of the Ordnance Survey maps which he inspected was there was any feature depicted which extended from the rear of the defender's Cottage and joined the feature depicted as the Farmhouse wall. Indeed, he identified the existence of the Farmhouse wall as a feature on all surveys by Ordnance Survey dating back to 1918. Prior to the 1972 Ordnance Survey its line had extended further south eastwards towards the access road for the Farmhouse. This could have been, as he explained, a wall, hedge or fence. He noted that on every map which he consulted, this feature had been consistently separate from the feature identified as the mill lade.
[34] It is convenient to note at this point an argument presented in the alternative by counsel for the pursuers. This was to the effect that, even if the pursuers were wrong in identifying the boundary between their property and that of the defender as being a wall running along the line referred to in the first conclusion of the summons, there had been encroachment in that the new wall had been constructed partly on the bed of the lade. As amended, the pursuers seek declarator that the pursuers' subjects are bounded on or towards the southeast by the outside face of the south east wall of the mill lade; and that such boundary lies inter alia between points A and E or thereby on the plan, no. 21/6, and is shown thereon by a brown and broken brown line between these points. No alternative declarator is sought in relation to any other line. However no objection was taken for the defender to this submission.
[35] In this matter, reliance is placed upon the evidence of the pursuers and of Professor Fleming. I do not consider that this submission has any real warrant in the evidence. In the first place, the only evidence which was directed to where "the bed of the lade" might be said to lie was to be found in the LOY survey plan, no. 21/6. This plan, which, Mr. Andrews accepted, would be more immediately accurate in measurement than the Ordnance Survey plans, detailed by means of a blue line what Mr. Hunter termed "the bottom of the bank of the mill lade". I take this to mean the bed of the lade. No evidence was given by Mr. Smith as to how this line was measured but it is only necessary to look at the plan to see that the new wall, which is precisely plotted and defined on the plan, does not encroach on any part of the blue line. Equally it is clear that the point at which the wall is closest to the blue line is where the wall turns the corner and continues up towards the ash tree following a line which in fact diverges from the blue line. Professor Fleming's evidence on this aspect of the matter was not as convincing, in my opinion, as the remainder of his evidence. In chief, he appeared to accept, under reference to the report of Mr. Andrews, (no. 19/9), that the tide did encroach in to the mill lade system. Thereafter his initial explanation of encroachment was to the effect that the construction of a vertical wall, such as the new wall, was to take away from the effect of the sloping bank, in hydrological terms, by some 10 to 15%. He then stated that there had been encroachment on the bed of the channel, But this assertion appeared to proceed on the basis that he expected a line E to F on the LOY survey plan, which represented the Farmhouse retaining wall, to represent the normal tidal limit. He did not speak to any measurements on his own account. I do not find the assertions by lay witnesses, in particular, Mrs. Summers helpful in resolving this matter. It is proper, however, to have regard to evidence given by Mr. Andrews about his observations at the time of a site visit on 6 January 1999. On that occasion he noted that the River Forth was full to the top of its banks at the level represented by mean spring tide. This he confirmed by measurement on site to the north bank of the river. His assessment at that time was that the line of new wall was coincident with the line appearing on previous Ordnance Survey maps up to a revision in April 1995. In cross-examination he agreed that he could not, and would not expect to be able to, identify where the bed of the water channel ended lay or ended and the bottom of the bank of the water channel began. The line which he drew as the water line on a sketch made of his observations on the occasion of his site visit, indicates that this is so, although the water level also ran in to the line of the retaining wall, as indicated on a plan G3 annexed to his report. Of some moment is the evidence of Mr. Badenoch. He visited the site in November 1998 and spoke to an exercise which was recorded in a series of photographs, no.19/7. This exercise was carried out at a point which coincided with the point some 12 metres below the downstream levee at which he had taken cross-section measurements in 1992 for the purpose of the sheriff court action. These measurements had been recorded in the drawings, no.19/4. This exercise was carried out with the purpose of determining whether the new wall had been built on the bed of the lade or on the right bank. On that basis he estimated that the new wall was within the banking as that was represented on his drawings and not on the bed of the lade. This evidence was objected to on the ground that, as was the fact, it was not put to Professor Fleming. While that takes away its force to some extent, nevertheless, since Professor Fleming did not attempt to take measurements either of the kind carried out by Mr
[36] I therefore reject the pursuers' primary submission that the defender through the agency of Mr. Watson (which agency was not in dispute) has been guilty of encroachment by building a wall wholly or at least partly, on the property of the pursuers without their consent, and that the extent of the encroachment was substantial and cannot be described as de minimis.
[37] For above reasons I find no legal or factual basis for the assertion by the pursuers of a right of ownership to the banking outwith the channel of the mill lade and beyond the line of the normal tidal limit, and thus to any of that banking upon which any part of the wall constructed by Mr. Watson stands.
[38] A number of issues were, however, debated upon the basis that Mr. Watson's operations had been carried out on the pursuers' property. I deal with each in turn.
Prescription
[39] A submission was made for the defender that there was room for acquisition of title through prescriptive possession, even if there had been a prior grant to the pursuers' predecessor in title of the area of banking in dispute. If I had concluded that the pursuers' title was apt to include that area, I would not have been persuaded that this submission was well founded in law. In Houston v Barr Lord Dundas pointed that to avail the party making the claim, the possession must not only have been continuous but clearly and unequivocally referable to his title of ownership. But in looking to the two competing titles in the present case, it is clear that they were intended to be read as providing a single mutual boundary and that the pursuers could only succeed in this action if they established that the boundary of their property was formed along the line for which they seek declarator. The cases referred to by counsel for the defender, namely Suttie v Baird 1992 SLT 133 and Hamilton v McIntosh Donald Ltd. 1994 SLT 793, are not of assistance. In the latter case, Lord Justice Clerk Ross, at p.796C, pointed out that for the operation of the positive prescription there must be a habile title. While it is no objection that such a title flows a non domino, that title must still be such as to comprehend the area in dispute. In the present case, it would require the court to presume that the Crown Commissioners had intended to derogate, or by oversight had derogated, from their original disposition to Mr. Millar of the subjects forming the Old Mill when subsequently proceeding to dispone the Cottage to Mr. and Mrs. Allison. I can find no reason to consider that they did so. Accordingly, the evidence of possession and use given by Mr. Johnston as to the formation of the walkway down to the lade and of Mrs Allison as to use of the walkway and banking, can take the matter no further and would, in itself, be wholly insufficient to constitute a prescriptive right of property to the banking which was otherwise in title of and the property of the pursuers.
Agreement and the events of 1996 and 1997
[40] It is convenient, first of all, to consider parties' pleadings on this aspect of the case, though some part has already been considered earlier in this opinion. The pursuers aver that in or about March or April 1996 Mrs Summers discussed with Mr Watson the question of the repairs to the south east wall of the mill lade. It was in a poor state of repair and the defender wished to repair it. Mr. Watson proposed to build up the wall at low level from point D to point E on the plan produced by the pursuers with the summons. It is said that in order to do so the defender required to enter upon the Old Mill and erect two low retaining walls. It was proposed to erect part of the two walls on land belonging to the pursuers. Mrs. Summers permitted the defender to encroach, if necessary, to the extent of about one or two feet from the south east wall of the mill lade to enable the envisaged two walls to be constructed. Mr. Watson undertook, on behalf of the defender, to repair those parts of the south east wall of the mill lade along the lines A to B and C to D shown on the plan and thus to uphold and maintain at her own expense the south east wall of the mill lade. It is further said that although not expressed at the time, Mr. Watson's true purpose and that of the defender, was to create a large patio area at the back of the Cottage. At the point where three ash trees grow through the south east wall, the pursuers agreed that the proposed wall should be built partly around the trees.
[41] In reply the defender avers that in about March or April 1996 Mr. Watson began work at the north east corner of the defender's property. The work involved laying the foundations for a new retaining wall along the defender's side of the mill lade. At that point the defender's ground sloped steeply down to the edge of the mill lade. There never was, at least since 1978, a wall on the south eastern side of the mill lade along the stretch where Mr. Watson has erected the new wall. Mrs. Summers spoke to Mr. Watson as he was working. Mr. Watson explained that he was building a retaining wall along the foot of the bank, that the wall was to run in a direct line from the point where work had begun towards three ash trees growing in the bank at a point nearer the defender's house, that the wall would run round between the trees and the mill lade and that the appropriate line for continuation of the wall towards the house would be determined once the trees had been reached. The purpose of the wall was to stop erosion of the embankment. The three ash trees grow within the defender's property.
[42] In article 4 of the condescendence the pursuers aver that in or about late April or early May 1996 Mr. Watson began building operations along that part of the mill lade between D and E on the plan referred to before. The operations proceeded slowly. Mr. Watson appeared to be moving rocks and earth and appeared to be removing a walkway on part of the south east wall and partly on the bank below the south east wall of the mill lade. These operations eventually encroached into the pursuers' property to a far greater extent than Mrs Summers had permitted. Their full nature and extent were not apparent to the pursuers during construction. Instead of building two terraced low walls, one large wall was built. It was significantly larger and broader than the pursuers envisaged. It was not what they permitted the defender to build. The wall ran along part of the bed of the mill lade.
[43] The defender, in reply to these averments, states that the wall constructed by Mr. Watson is located within the line of the embankment. The foundations of the wall were dug into the slope of the embankment. The wall is about 70 feet long and 2 feet thick. At its highest point it is 6 feet 3 inches from the base of the foundation. It is erected in exactly the position indicated to Mrs. Summers when she first inquired. The dimensions of the wall and its location were apparent throughout the period of its construction. At no time did either of the pursuers complain or express any concern to Mr. Watson or the defender about the wall during its construction.
[44] In article 5 of the condescendence the pursuers aver that in or about August or September 1996 they sought to discuss matters with Mr Watson. He proposed to continue the wall along the bed of the mill lade upstream and through the downstream levee. The pursuers were not prepared to agree to such a proposal
[45] In reply, the defender denies that there was no intention and never had been any intention of continuing the new wall through the levee.
[46] In article 6 of the condescendence the pursuers aver that over the summer of 1996 they attempted to discuss the nature and extent of the operations with Mr Watson but that he was difficult to talk to. He was asked about the second wall but brushed aside the pursuers' reasonable enquiries and concerns. The pursuers were entitled to assume that the building operations would ultimately conform with what they had allowed to take place. It is also averred that Mr. Watson subsequently informed the pursuers that he had acquired land in the mill lade from the owners of the Old Mill Farmhouse. It is said that those owners had no right or title to convey any part of the bed of the mill lade to the defender or Mr. Watson.
[47] In reply, it is said that the new wall is not erected on the alveus of the mill lade but within the south east bank of the mill lade and wholly on the property of the defender. It is further said that the wall was erected over a period of about six months, that its construction was clearly visible to the pursuers, that Mrs. Summers frequently watched Mr. Watson at work on the wall and that no objection or representation was made by the pursuers to the defender or Mr. Watson at the time. It is stated that the new wall is built at its northeastern end partly on a piece of land belonging to the proprietors of the Old Mill Farmhouse with the consent of these proprietors.
Correspondence
[48] In judging of the dispute between parties and of the evidence as to what passed between them, it is, I consider, relevant to have regard to the material that appears in contemporary documents. It is clear that by August 1996 the pursuers were concerned about the works undertaken by Mr. Watson. The extent of their concern is, I consider, reflected in the instructions given to Professor Fleming as recorded in his report dated January 1999. In it he states that, in a letter dated 28 August 1996 from the pursuers' agents, he received instructions to provide an expert opinion concerning a number of issues. He details them as including "encroachment of neighbouring wall into Mr. and Mrs. Summers' property." He makes reference to a site visit in 11 July 1997 "to inspect the mill lade and the offending wall and during my inspection I formed the opinion which would question the stability of the wall as constructed." In paragraph 2 of the report he gives as his opinion that "the wall encroaches into the mill lade which forms part of the Summers' property". Later he states that "the construction of the wall built by the neighbour clearly encroaches into the mill lade and would affect its hydraulic efficiency by obstructing the flow". I consider that it is reasonably to be inferred from the report relative to the letter of instructions that the pursuers' concern in August 1996 was as to whether the wall, as it was then built, encroached into the mill lade in the sense of affecting its hydraulic efficiency and was not concerned truly with issues as to where the boundary actually lay. Professor Fleming's opinion, as recorded in his report, clearly proceeded upon the premise that the mill lade needed a clear exit channel which was "hydraulically efficient" and that the wall, not being a design feature of the original mill system, restricted the free discharge of the mill lade at times of high flow due to "the significant reduction in the width of the present lade" as compared to its width in March 1994. This Professor Fleming exemplified by reference to two photographs, one taken in March 1994 and the other in July 1997.
[49] This inference is supported, I consider, by more positive material to be found in the correspondence between the pursuers' agents and the defender and her agents from October 1996 onwards until July 1997. It is to be borne in mind that the pursuers had already litigated with regard to the construction of the two levees and the possibility of damage to the Farmhouse property. In the course of that litigation Professor Fleming had spoken to the hydrological features of the mill lade system and the likely causes of damage to the Farmhouse property as is recorded in the Sheriff's judgment.
[50] The correspondence begins with the letter of 15 October 1996 from the pursuers' agents to Mr Watson. In it the agents made reference to the pursuers' successful defence of the sheriff court proceedings. It goes on to make reference to a suggestion that he was unaware of the "true facts relating to the land boundaries" and draws "certain matters" to his attention, which included the following
"1. The Old Mill boundary 'extends from the outside face of the Mill Lade wall which is clearly visible. The judgment of the Sheriff confirms that the Mill lade wall extended not only within the mill chamber but also downstream of the chamber's downstream exist (sic) at least as far as the letter 'H' on the plan sent by separate cover.
2. The Mill Lade is entirely excluded from your property as is confirmed by your own title.
3. The cottage title clearly states your liability to uphold and maintain in good repair the south east wall of the Mill Lade to the satisfaction of the Crown Estate Commissioners.
4. With regard to the building work carried out by you in the Lade in the past months, our clients regret to note that you have not done as verbally discussed. Indeed, you are taking considerable advantage in that instead of there being two lower retaining walls on the slope there is only one high wall which, by its width and height, greatly impinges on the natural line of the Lade. It may well be necessary for some modifications to be made to this construction if it is to be allowed to remain.
5. Our clients take particular exception to the fact that you have stated that you are not now prepared to carry out your commitments to repair the Lade wall as originally agreed and as required by your title. Your threat that unless you are permitted to build on a straight line through the levee and into the Lade, all Old Mill property, you will leave the wall in its present condition, simply fence it off from your own view leaving it visible only to our clients is totally unacceptable.
6. The recent removal of large existing masonry stones from the junction of the levee and the south east Lade wall has been noted. Your are reminded of the need to maintain the integrity of the levee as part of the flood mitigation scheme for the Old Mill which works have been approved by both the Planning Department of Stirling Council and the Court and have been fully documented.
7. As already advised, a fence will be put in position on the levee at the boundary line, i.e. the south east wall of the Mill Lade.
8. We would advise that there should be no repetition of raw sewage draining from the Cottage into the Lade. This is a health hazard. We trust that sufficient external work has been carried out to avoid any recurrence."
The letter ends by intimating that while the pursuers did not wish to appear confrontational, they would not "accept intrusion onto their property".
[51] In the context of the Sheriff Court judgment no.19/6, and not least in relation to the sheriff's findings in fact numbered 18, 42,43 and 47, it is apparent that the line referred to in paragraph 1 of this letter, is one which would run along the right edge of the mill lade looking downstream and which would not meet the retaining wall of the Farmhouse. Not only did the sheriff find that the farmhouse retaining wall was not built with the purpose of being the edge of the mill lade, but, in his Note, he indicates that, so far as the Farmhouse was concerned, the boundary between the pursuers' property and that of the Farmhouse was that at which the bank met the alveus or bed of the lade so as to correspond as nearly as possible with the outside face of the south east wall of the mill lade. This gave rise to the sheriff's finding in fact and in law, numbered 4, "that the boundary ..is a mutual boundary without gap between the Old Mill and farmhouse properties and, despite reference in the farmhouse title to the boundary being "bounded ...by the...bank", is intended to run along the line at which the bottom of the bank meets the bed or alveus of the mill lade wherever the line can be determined on the ground to be." The issue of where the boundary ran between the two properties was of materiality in the context of an action in which the owners of the farmhouse property were claiming that their property was adversely affected by the construction of the downstream levee. It is also to the point that it is clear that the pursuers sought to support their construction of the titles by reference to features within their title relative to the mill lade, including that to the south-east wall of the mill lade. I consider it is also significant that it appears that, before the sheriff, the contention on the pursuers' behalf, as defenders in the action, was that the boundary between the properties was at the top of the bank of the mill lade. The effect of the sheriff's judgment was, at the very least, to nullify the pursuers' claim that the Farmhouse retaining wall formed any part of the mill lade, even though it did not immediately determine with precision the exact boundary. This is made clear in the sheriff's judgment in relation to his Finding in Fact and in Law Five.
[52] I consider that it is a proper reading of the letter of 16 October 1996 that it expresses the pursuers' concern, in relation to the works carried out downstream of the levee, as being that they would interfere with the hydrology of the Mill Lade (which was the substantial issue in the Sheriff Court action) by reason of its height and width and not with any direct "intrusion" onto their property in the sense of being built upon and within it. The concern for such intrusion arose rather from the threat to extend the inner lade wall through the levee, which was undoubtedly the pursuers' property.
[53] I am confirmed in this reading by the fact that in subsequent correspondence, and in particular in a letter dated 4 February 1997, the pursuers' agents advised the defender that they would take court proceedings unless the defender has carried out work "(1) to remove the offending wall which projects into '(my emphasis)' our clients' lade and (2) work is carried out to repair the south east wall of the mill lade from which stones were recently removed." Again, in a letter dated 27 March 1997, the pursuers' agents state that their clients "require an undertaking that no work will by carried out by your clients on our clients' property at The Old Mill. Doubtless you have explained the boundaries to Miss Crichton and Mr. Watson. Our clients are afraid that Mr. Watson may be about to start work which will infringe upon (my emphasis) our clients' property and in particular on their downstream levee on which he has been recently been burning rubbish. There must be no further encroachment or work carried out on our clients' property..."
[54] However, the correspondence then took a different turn with the proposal made in early April 1997 on the pursuers' behalf that there be an excambion between the pursuers and the defender. As recorded in the agents' letter dated 9 April 1997 it involved
"(1) our clients' property which your client has encroached upon with the construction of the wall downstream of the flood protection barrier (levee) and (2) the area which is described in the titles as the south east wall of the mill lade and the top of the bank at the rear wall of your clients' cottage so far as it extends along until the wall of the cottage changes from stone to harling. This would not include the various domestic pipes etc. In addition, no further works would be carried out which encroach upon our clients' property or damage it in any way."
A plan was attached which was stated to be neither to scale nor binding. Later in the letter in a reference to the area described as (1), it is said:
"This is the difficult area as a retaining wall requires to be built from the new wall up towards and to join the south east wall of the mill lade to complete the retention of the grounds. Originally it was agreed between the parties that the Cottage would do this but it would only be acceptable if it was a wall of appropriate height and width with no encroachment on our clients' property and in particular on the levee. It should not be able to become a walkway for your client."
[55] At the stage at which this proposal was first made it is clear from the drawing which accompanied the letter, that no precise demarcation was sought to be made as to where it was suggested that the boundary lay from which the "difficult area" was to extend. The effect of the offer was, of course, that the pursuers would become liable for, and could themselves undertake, the repair of the south east wall of the inner lade behind the Cottage, while the defender would require to take the wall from the point to which it had already been completed up to a point adjacent to, but not part of, the downstream levee. It appears from the correspondence that this offer was considered by the defender, though the offer fell with the raising of the present action in the circumstances to which I come later in this opinion. In the interim the pursuers instructed the preparation of a plan, being the plan which was prepared in April 1997 by LOY Surveys (no. 21/7). It was this plan which, Mr. King accepted, was incorrect in that the point E did not correspond with the end of the Farmhouse retaining wall which, in fact, carried on in a southwards direction beyond the point E. This gave rise to the production of a brown dotted line on the plan (no.21/6) prepared in January 1999 which, Mr. King asserted, approximated to the assumed line of the south east wall of the mill lade. It would appear, however, that, notwithstanding what this witness said, the point E remains exactly at the point where the wall constructed by Mr. Watson met the retaining wall of the Farmhouse. That is to say, throughout these proceedings the pursuers have asserted a right of property to an area which includes within it a small portion which lies within the subjects belonging to the owners of the Farmhouse.
State of the south east wall
[56] It is not in dispute, and indeed is clear from contemporary photographs, that in early 1996 the south east wall behind the Cottage, in that part between points A and B on the plan no.21/6, was in a poor state of repair and has remained so thereafter to the present day. In their evidence both the defender and Mr Watson agreed that before March 1996 they had formed the intention to repair the wall between those points. Mr. Watson, in particular, agreed that this formed part of a discussion between him and Mrs. Summers in or about March or April 1996.
Construction of the new wall
[57] I am satisfied from the evidence of Mr. Watson and Mr. Sedden, who lived in the Old Mill Farmhouse, that, prior to work of construction of the new wall being begun, they had discussions about a wall to be built out from the retaining wall for the Farmhouse. In the course of that discussion Mr. Sedden had spoken about a pile of bricks which lay on the slope forward of the south west end of the retaining wall running down to the mill lade. He agreed that these could be removed by Mr. Watson. I am satisfied from this evidence that, before construction was begun, the line which the wall was to take, had already, in large part, been fixed upon by Mr. Watson. That is to say, the wall was to abut and project from the Farmhouse retaining wall at approximately right angles to it and run for some feet before reaching a line it was then to follow along the foot of the banking towards the downstream levee. Mr. Watson gave evidence that the masonry at that part of the Farmhouse retaining wall where the new wall was to abut, was not in very good order. Mr. Sedden spoke to having had a bulge in the wall pointed out to him by Mr. Watson. He had considered that it would be of benefit to have the new wall taken up the retaining wall. Thus the new wall was to be taken out from the retaining wall of the Farmhouse and would enclosed a small area of ground belonging to the Farmhouse whose boundary with the defender's property was identified by a wooden fence which appears in, for instance, photographs nos. 19/5 I and J. In order to carry out the work, some clearing of the bank and shrubbery on it behind the projected line had to take place. This can be seen from photographs in no.19/5 taken as the work of construction of the wall was proceeding. The method of construction adopted by Mr. Watson began with the placing of wooden shuttering for a foundation made of concrete. This is shown in a photograph, no.19/5Z, at the point where corner of the new wall was built with the line extending along the foot of the banking. In the photograph the Old Mill is clearly visible in the background. The formation of the foundation of the wall along the foot of the banking comprised wooden shuttering placed along one side of a trench dug by Mr. Watson. Material from the trench was placed outside the wooden shuttering. Within the shuttering pipes were placed at intervals extending from the opposing side of the trench as shown in a photograph, no. 19/5Y. Concrete was then poured into the trench to create the concrete found for the wall. Steel rods were used to strengthen the corner section. By reference to photograph, no. 19/5Z, Mr. Watson estimated that the foundation extended down to the level of the bed of the mill lade although dug into the banking. The work was done in two halves. The first half consisted of the construction out from the Farmhouse retaining wall and part of the way along the foot of the banking towards the downstream levee. When the concrete found for the first half was completed, stone courses were put in place and built up to the full height as shown in, for instance, photographs, nos. 19/5T,U,V and X. Mr. Watson indicated that the wall had been completed to the extent shown in the photographs nos.19/5V and W by about July 1996. He then laid the concrete found for the second part of the wall as shown in photographs nos. 19/5Q and R, at which stage earth had been back filled behind the completed portion of wall. The wall was then built up in the manner shown in photographs nos. 19/5 N and O to a point immediately below the three ash trees. In cross-examination Mr. Watson agreed that some of the material then dug out for the concrete found, went down the bank into the lade.
[58] In addition, Mr. Watson also constructed a wall within the Cottage garden along the top of the slope forming the banking down to the mill lade. This wall was begun at the point where the Farmhouse retaining wall came to an end with a large stone. This was just beyond the boundary between the Farmhouse and the Cottage and within the Cottage ground, as shown in photograph no. 19/5J. The wall was built up as shown in photograph no. 19/5I and carried across above the line of the lower wall as shown in photograph no. 19/5M to a point some feet into the garden ground, as shown in photograph no. 19/5O. The wall, in the state which it had reached by April 1997, appears in photographs nos. 21/35/10 and 11. At this stage Mr. Watson had infilled the area between it and the lower wall and was creating a rockery.
[59] At the beginning of the work on this second wall Mr. Watson placed a post at a point close to the boundary to act as a support for boarding and to mark the boundary between the Farmhouse and the Cottage garden, as shown in photographs nos. 19/5 I and J.
[60] I accept the evidence of Mr. Watson that there had been substantial quantities of material used in the construction of the lower wall, including some three or four loads of sand, some 45 tons in all, a load of chippings of about 17 tons for concrete, a full load of readymix concrete, and in addition stones had been brought both by way of van and trailer and by tipper lorry, some being deposited by the driveway in front of the Cottage. The wall was built by Mr. Watson himself with assistance of one labourer. He estimated that the overall cost, including wages paid to the labourer, had been of the order of £7000 to £8000. The work had been conceived by Mr. Watson, using his experience as a landscape gardener, as had the dimensions of the foundations and the wall. The wall had been raised by eye and not by use of a spirit level.
Discussions between the parties
[61] The nature and the terms of the discussions between the parties and more particularly between Mr. Watson and Mrs. Summers, was the subject of considerable divergence in evidence. In attempting to resolve the competing accounts I have to say at the outset that I did not find the evidence given by either party on this and other related matters to be immediately compelling and reliable. Both appeared to me to be exaggerating matters in certain respects and in other respects anxious to put a slant on it which best fitted their case. Some part of the difficulty appeared to me to arise from an understandable failure of recollection as to precisely what was said or what fell to be understood by the other party, over the period of time that has elapsed between the events and the giving of evidence.
[62] However, I start with the undoubted fact that there was a conversation in or about March or April 1996, at which the matter of the repair of the wall in the area immediately behind the Cottage was the subject of discussion between Mr. Watson and Mrs. Summers. From Mrs. Summers' account she claimed that she had taken out her mother and her brother as witnesses. She stated that she had spoken to Mr. Watson on an occasion in January 1996. She said that her express concern was the Cottage because its appearance affected the appearance of the Old Mill. At the time Mr. Watson had been looking at the walkway in its collapsed state. She had come onto the levee. She said that Mr. Watson had told her that he wanted to improve the wall all the way from behind the Cottage down to the Farmhouse retaining wall except where the levee was. Mr. Watson had pointed out the line of the wall as far as the Farmhouse retaining wall and had said that he would restore the line of the wall. He had particularly pointed to the damaged part at the rear of the Cottage. Mr Watson had told her of his plans for improvement of the Cottage but said that the wall would be done first of all. Mr. Watson gave her to understand that there were to be two low walls, one going on a line one or two feet down the bank from the line of the existing line of a wall extending the Farmhouse retaining wall. There had been a discussion about the three ash trees. She had been asked and had agreed that the wall should extend round them and return to the original line.
[63] It is convenient to consider this evidence further in the general context of the evidence given in relation to personal bar or acquiescence, since the primary question must be as to whether there was an agreement and, if so, what was the content of any agreement between the parties.
[64] However, before proceeding further, I deal with a matter raised for the defender in relation to a submission based upon the Requirements of Writing (Scotland) Act 1995.
[65] In relation to the evidence concerned with the terms of an agreement between Mrs. Summers and Mr. Watson, counsel for the defender suggested that, at best for the pursuers, any commitment made by Mr. Watson as regards the construction of a wall or walls downstream of the levee amounted only to an undertaking to carry out some limited building work and thus was no more than a gratuitous unilateral obligation. As such it required, counsel submitted, to be constituted by reference to a written document by virtue of section 1(2)(a)(ii) of the Act. There being no such document, the pursuer could not found upon the commitment even if, otherwise, it had been established that a verbal commitment of the kind spoken to by Mrs. Summers had been given by Mr. Watson.
[66] I note, in the first place, as counsel for the pursuers pointed out, that no such case is made for the defender in her pleadings and no plea-in-law is directed to the issue. But, in any event, the submission can only be predicated upon the premise that the building work was to take place on ground owned by the defender as a restriction of the use that the defender would otherwise be entitled to make of her property. This premise, as counsel for the pursuers accepted, formed no part of the pursuers' case. On the contrary, the pursuers' case depends upon the basis that the wall complained of was built wholly upon the pursuers' property. Counsel for the pursuers accepted that unless this were to be established, the pursuers' case failed so far as it was said that there had been some agreement between Mrs. Summers and Mr. Watson as to the extent to which a wall or walls would be built by Mr. Watson where both parties were proceeding upon the basis that the ground was owned by the pursuers. If, however, there had been no such understanding on the part of both, then there could have been no binding agreement, since the parties to it would not have been at one as to a matter fundamental to the agreement founded upon by the pursuers.
Personal Bar or Acquiescence
[67] This submission for the defender proceeded on the basis that substantial works had been carried out by the defender, through the agency of Mr. Watson, under the eyes of the pursuers and without objection. It was further predicated upon the basis that the pursuers were the owners and the defender was not the proprietor of the banking upon which the wall was built. It was said that the wall as constructed had involved substantial cost. I am prepared to accept, on the evidence of Mr. Watson, that this was the case by the time that the wall had been extended to below the ash tree. It was further said that by the time that Mrs. Summers had expressed concern about the matter and Mr. Watson knew that she was unhappy about the wall, it had already reached a stage where it was clear what was the line of the wall relative to the top of the bank and, further, that the wall was not a low wall of the character which, Mrs. Summers accepted, had been agreed to by her. On the evidence which I accept from Mrs. Summers and Mr. Watson, I am satisfied that the point at which the first remonstrance was received from Mrs. Summers, was when the wall had been constructed to the stage shown in photograph no. 19/5 R. As Mrs. Summers put it, when shown this photograph in evidence, this was the time when she complained, as she remembered the concrete of the foundation. I hold on the evidence of Mr. Watson that this would have been about June 1996, since he said in cross examination that it was earlier than July 1996. While he appeared to reject a suggestion that between then and August 1996, any further reference was made to the matter, I consider that Mrs. Summers did continue to express the same concern on occasion thereafter but that Mr. Watson simply paid no attention to her. This state of affairs then culminated in the meeting in September 1996 which gave rise to the subsequent correspondence between solicitors. The pursuers' case is, and indeed must be, that the basis for this concern was a subsisting agreement between Mrs. Summers and Mr. Watson both as to the line which the wall was to follow as well as the height of the wall, being an agreement in relation to an area of ground which, to the knowledge of Mr. Watson, belonged to the pursuers. I am not satisfied that this was the case. I do not believe that at any stage in the course of the conversations that took place between Mrs. Summers and Mr. Watson was the issue of property rights explicitly raised or stated. Dr. Cumming, in his evidence about a discussion between Mrs. Summers and Mr. Watson about a line for a wall, said that Mr. Watson seemed aware that "the remains of a wall" to which he pointed, was the boundary. Although Mrs. Summers claimed that such had been the case, I consider that the truer state of affairs is to be found in the evidence of Mr. Summers. He stated in his evidence that the first time that he spoke to Mr. Watson was in September 1996. He had, however, understood that Watson was carrying out remedial work to the rear garden and to the Cottage itself, which included the "rebuilding" of two walls to improve the look of the place. He said further that he understood that the lower wall was to be built in or around the "boundary" south-east wall and a second wall was to be placed above it in the same way. He also understood that Mr. Watson was hoping to repair the south-east wall. He explained that the discussions were conducted between his wife and Mrs. Summers. He himself was away during the week and only came home at weekends. He recollected building work taking place. He and his wife had become concerned. At first it had not been clear what operations were going on in the lade. He went on to say that he thought that his wife had spoken to Mr. Watson because the agreement about where the wall was to be built, was not being adhered to and that there was encroachment. He said that he "felt&qu
[68] On the other hand, I am satisfied from the evidence of both the defender and of Mr. Watson which I accept, that before the latter embarked upon the construction of the wall, the latter had already had in mind the improvement of the garden ground of the Cottage. He was a landscape gardener. It was also clear from their evidence that all matters of the positioning and the construction of the wall were left by the defender to Mr. Watson and that he was the prime mover in the project for the improvement of the garden ground. I also accept the evidence of Mr. Watson that he had been made aware from conversations with Mrs. Allison about a problem with erosion and further about the making and use by the Allisons of the walkway down the face of the banking to a point at the lade near the boundary with the Farmhouse. I further accept the evidence of Mr. Watson that he proceeded with the project upon the view that the area of ground belonging to the Cottage, and hence to the defender, extended down the banking to the mill lade. I find it of some significance that Mrs. Summers in her evidence in chief described Mr. Watson as having acted as though this ground was his property. I consider that, whatever be the true legal position, Mr. Watson genuinely believed that the new wall which he was constructing, was to be and was being built upon ground belonging to the defender and to the Farmhouse. His awareness of the problem with erosion is, I consider, of some importance since he explained that one consideration that he had in mind proceeding with walling, was to prevent erosion. I am satisfied that his initial intention was for construction of terracing of a form that was different from that which was ultimately achieved. An important element in the wall as constructed was the manner in which it was carried out from the Farmhouse wall. This was determined after conversation with Mr. Sedden which, I am satisfied, took place when Mr. Watson was clearing vegetation preparatory to laying any foundations. In evidence in chief he said that he thought that in discussion with Mrs Summers he had mentioned a terrace bank above the wall although he had put in a rockery instead.
[69] On the other hand, I gained the clear impression that at no time prior to the correspondence between the parties' solicitors, was any verbal claim made by either or both of Mr. and Mrs. Summers that the banking was their property. Rather, my impression, from the evidence of both, was that when speaking to Mr. Watson, their concerns were expressed by reference to other matters. Firstly, there was a concern to have the inner lade wall repaired because not only did they know that it was an obligation upon the proprietor of the Cottage but they considered that its state of disrepair was unsightly. Secondly, they were anxious to know what it was that was likely to be done on the banking below and beyond the downstream levee, not only because it might affect the channel of the mill lade and the levee itself, both of which were undoubtedly the pursuers' property, but because any improvement of the area could affect the amenity of the Old Mill itself. As I have already indicated, I consider that it was these latter concerns which gave rise to the approach for advice to Professor Fleming in August 1996, and are more particularly expressed in the letter sent on behalf of the pursuers on l5 October 1996, and not protest at some territorial encroachment within property bounded by the line of a south-east wall which extended at and along the top of the banking to the Farmhouse wall. The reference to the judgment of the sheriff at Stirling makes this clear.
[70] In regard to the agreement which is averred by the pursuers to have been reached between Mr. Watson and Mrs. Summers, I see no reason to disbelieve Mrs. Summers and Dr. Cumming that there was a meeting with Mr. Watson at which both were present (although Mr. Watson appeared to have no recollection of this) and that this meeting occurred when they had come out on to the levee. Mrs. Summers appeared unduly anxious to stress the importance of the meeting to the extent that she said that she had taken her mother and her brother, Dr. Cumming, to be "witnesses". This I find difficult to accept, more particularly since she could give no explanation why she thought it necessary to have "witnesses" present. Moreover, I find it difficult to accept Dr. Cumming's recollection of what precisely was said at that time as accurate. He agreed that he did not take any active part in the conversation. I have no reason to doubt that the principal matters of discussion would be apparent to him. One of these was clearly the repair of the wall at the rear of the Cottage within the inner lade. Again, I accept that it is likely that, in that context, mention was made of the area between the downstream levee and the ash tree and that its state was remarked upon. Mrs. Summers and Mr. Watson were both agreed that the line of a wall which was discussed was one which was to be diverted to allow the ash tree to remain. Dr Cumming spoke to same effect, though he said that it was allowed as a possibility. Mrs. Summers stated that this diversion was from a line of a wall which was to encroach only some one to two feet into the pursuers' property. On the other hand, Mr. Watson indicated that this discussion was referable to a general line which would take the wall along the base of the bank and not in a curve round the ash tree. I think that this is a much more plausible explanation. I find it impossible to think that Mr. Watson would have considered the construction of a wall of the character such as that suggested. I consider that the more likely explanation is as tendered by Mr. Watson that he had had in mind to cut down the ash tree to allow the wall to be built up towards the back of the Cottage but was prepared to adjust the line slightly from its lower end to allow the tree to remain because Mrs. Summers wanted it to be retained. I do not believe that this was done because Mrs. Summers was claiming that the ground over which the line of the wall would be built, or on which the ash tree grew, formed part of the pursuers' property. This misunderstanding as to the line agreed was in part a matter which gave rise to the subsequent acrimonious dispute in September 1996 as to the continuance of the line of the wall towards the Cottage. On the other hand, I consider that, notwithstanding Mr. Watson's apparent denial in cross-examination that he had made any mention of a second wall, Mrs. Summers was given to understand that there was to be a wall brought across from the Farmhouse at the top of the banking on the line which was in fact followed. Thus Dr. Cumming said that in the course of the conversation there had been reference to " a small terrace" and also to a "stepped wall". In cross examination, Mr. Watson accepted that he had said that he was going to terrace the bank which he likened to that in a vineyard. Both Mrs. Summers and Dr. Cumming placed this conversation as having taken place before any work on the construction of a wall had begun and when both had come onto the levee. Mr. Watson, on the other hand, said that an initial discussion took place on an occasion when he was in the lade and Mrs. Summers was on the island, that is to say, the opposite side of the mill lade from the Cottage and Farmhouse. However, from what was said by Mrs. Summers, it appears that there had been an earlier discussion between her and Mr. Watson about what more generally he was g
[71] In this branch of the case, the defender seeks to establish that either the defender has acquired the area over which the wall has been built by acquiescence or that the pursuers are personally barred from seeking to have it removed. Counsel for the defender founded upon Bell's Principles para. 946 and Bargaddie Coal Co. v. Wark (1859) 3 Macq. 467. In my opinion, these authorities do not assist the defender. In Bargaddie Coal Co. v. Wark, it was pointed out that acts of acquiescence, though not sufficient in themselves to bar the exercise of a right, might be sufficient to give validity and force to a parole agreement. Again, in the passage from Bell's Principles to which reference was made, it is stated;
"The principle seems to be, that mere acquiescence may, as rei interventus, make an agreement to grant a servitude, or to transfer property, binding, or may bar one from challenging a judicial sentence; but that where there is neither a previous contract nor judicial proceeding, there must be something more than mere acquiescence, something capable of being construed as an implied contract or permission, followed by rei interventus. Where great cost is incurred by operations carried on under the eye of one having a right to stop them, or where, under the eye and with the knowledge of him who has the adverse right, something is allowed to be done which manifestly cannot be undone, the law will presume an agreement or conventional permission as a fair ground of right."
Later in the same paragraph it is stated that "in most cases there can be no acquiescence until injury arises, and silence, or non-repugnantia, for a period does not bar from objecting when a nuisance is distinctly increased or an encroachment extended."
[72] Counsel for the pursuers, on this branch of the case, made reference to Duke of Buccleuch v. Magistrates of Edinburgh 1865 3 M 528. At p. 531 Lord Justice Clerk Inglis said, in a consideration of the general rule of law that inaedificatum solo, solo cedit:
"If I build on my own ground, and a few inches, or a few feet beyond, on my neighbour's ground, and if he stands looking on without objecting, he will be held to have given a tacit consent to my operations, which will have the same effect as express consent. This is the foundation of the doctrine of acquiescence, which, however, is a doctrine that must be carefully guarded, especially when it affects heritable rights. The facts from which acquiescence is to be inferred must be such as to leave no reasonable doubt as to what was the intention of the parties at the time."
[73] Accordingly I agree with the submission for counsel for the pursuers that before the defender can seek to found upon acquiescence, the defender requires to establish conduct from which tacit consent can be inferred, that is to say, consent to something different from that which the pursuers understood was going to happen, even if there was not actual agreement in a contractual sense. There is no doubt, on the evidence which I accept, that Mrs. Summers was concerned from June 1996 onwards that the wall was being constructed on a line different from that which she understood would be followed and that she remonstrated with Mr. Watson accordingly. On the other hand, while I do not consider that Mr. Watson acted in deliberate bad faith in building as he did, in that he had not in any material way diverged from the general line which had been described by him to Mrs. Summers and which he thought to have been so understood by her, I am satisfied that there was no consensus or mutual understanding between parties as to where the line of the wall was to run. It was argued that he was justified in thinking that there was a mutual understanding by the fact that the wall had already been constructed in a substantial sense before Mrs. Summers came to remonstrate with him. However, I consider that that remonstrance came at a relatively early stage in the wall's construction and, indeed, as it now appears from the evidence, (although it was neither said nor perfectly understood by parties at the time) the wall, so far as then built, was to a substantial extent built on ground to which the proprietor of the Farmhouse had title. At the stage of the wall's construction at which Mrs. Summers first remonstrated, I do not consider that it could be said that great cost had been undertaken by the defender nor that what had been done, could not be undone, at least so far as the wall was built upon ground which, for present purposes, is assumed to be the property of the pursuers. Furthermore, the purported agreement upon which the two parties were proceeding to act, was not one in which there was any consensus as to title. Each party appears to have acted upon their own interpretation of where the right of property lay as to the ground upon which the wall was to be built, without any express indication given by one party of that understanding to the other. That being so, the consequence is that, there being no agreement between the parties as to the line the wall was to take, I hold that the remonstrance of Mrs. Summers came at a sufficiently early point as to prevent the operation of rei interventus to set up an agreement as to a particular line and, therefore, to bar the pursuers from asserting that there was no such agreement as that upon which the defender founds. In any event, it is clear that the purpose of the agreement between the parties, whatever else it might be said to be, was not one which was directed to a transfer of title from the pursuers to the defender. Neither party entered into the purported agreement with that intention. Thus it was not such an agreement as could be held binding for that purpose even by operation of rei interventus. In this regard, counsel for the pursuers made reference to Viscount Melville v. Douglas's Trs. (1830) 8 S 841. In that case the verbal contract was one of excambion, that is to say, a contract for the transfer of title. From what was said in the opinions delivered, it appears that on the averments of parties, the court was able to hold that there had been acquiescence as relative to and explanatory of that contract, such that the contract was set up. In so doing, however, Lord Gillies, at p.843, made reference to the dangers which could arise from using acquiescence as a doctrine for "depriving one's neighbour of his property by unwarrantable encroachment". I do not consider that the purported agreement to which both parties apply
[74] Since I would have rejected the defender's submissions on acquiescence and personal bar, then declarator in terms of the pursuers' first conclusion as amended would, upon the hypothesis that the wall as built encroached upon the pursuers' property, fall to be granted. In that event, the pursuers would become entitled to a remedy for the encroachment on their property. The primary remedy sought by the pursuers is one for removal. There was no dispute that the remedy to be granted is one for the equitable jurisdiction of the court in the circumstances of the particular case. Matters such as the extent of the damage, the actings of the party at fault and impairment of the other party's enjoyment of his property, are all factors which may fall to be taken into account. While the general rule is that a proprietor is entitled to have any structure erected upon his property removed, there remains an equitable power in the court, in exceptional circumstances, to refuse enforcement of the proprietor's right at least in a question of encroachment by a neighbouring proprietor (see Anderson v. Brattisanni's 1978 SLT (Notes) 42). The alternative in such exceptional circumstances may be damages. If the complaining party has suffered no substantial injury, the court may well refuse removal (see Sanderson v. Geddes (1874) 1 R. 1198: Wilson v. Pottinger 1908 SC 580). It is convenient to say, at this point, that even if, contrary to the view which I have otherwise formed, there had been some encroachment over the line of a boundary formed by the normal tidal limit of the mill lade, it was at best minimal and would not in any material respect alter the mutual boundary between parties. In that event, I would not have granted any thing by way of a remedy, on the ground that the pursuers had not proved any real injury to their property.
[75] However, on the hypothesis that the boundary was as the pursuers seek to have it declared, I would have had regard to the fact that the wall continued to be built even after the pursuers had remonstrated at a relatively early stage against the line it was following. From that time onwards it could not be said that Mr. Watson was acting without knowledge of the pursuers' objections. In the second place, insofar as the wall is built at the lower part of the bank, it does, on Professor Fleming's evidence have some effect upon the hydrology of the mill lade. But, more particularly, it converts what was a natural bank into a more artificial structure. Furthermore, it would inevitably mean that the maintenance of the wall in its present form would fall upon the pursuers and their successors in title unless it was removed.
[76] There was evidence given about the stability of the wall. Mr. Watson, for his part, accepted that the wall had been built by eye and not with a spirit level, that it was not 100% upright and that there was a slight bulge in the wall. He further accepted there was a gap at the join between the end of the wall and Farmhouse wall which he set down to shrinkage in the wall. The foundations, he said, were roughly 2 to 2 1/2 feet wide and 2 to 2 1/2 feet deep, varying in places. He agreed that there was no scarcement either at the front or the rear of the wall. He did not accept that the wall was liable to be affected by the presence of the ash tree, whose roots, he said were well below the wall. He agreed that, although he had built walls of a smaller scale as a landscape gardener, he had not built a wall of the same character before. It would also appear that the wall has been constructed without a building warrant having been obtained. Mr. Watson did not suggest that there had been one obtained for the defender. Mr. Wales, a chartered civil engineer, led for the defender, spoke to a number of inspections of the wall over a period of three years up to the time that he gave evidence. He agreed that there was a requirement for a building warrant as stated by Mr. Semple for the pursuers. He further stated that the code of guidance for the construction of such wall would require a factor of safety of 2. He had carried out computer calculations. Upon these, he expressed the opinion that in the case of the present wall the factor of safety was of the order of 1.6. The wall was at the time of his last inspection, the day prior to his giving evidence, exactly as it had been two years before. He considered that a scarcement would have been beneficial, particularly to the rear, as adding to the overall stability. Further, he considered that the ash tree should be removed because of the adverse effects that it could have upon the wall if retained. On the other hand, he spoke to his own knowledge of the ground conditions of the Carse, being the area where the wall was built, and considered that the ground conditions were adequate to bear a wall of the size constructed. He had noted that the weep holes, which were designed to relieve pressure in the banking behind the wall, had been working at the time of his inspection the night before he gave evidence. He considered that any erosion caused by water from the weep holes falling onto the bank in front of the wall would be restored by the movement of water in the lade. He expressed the opinion that, overall, the design features were sufficient for the wall. He had taken note of the photographs of the construction of the wall. They satisfied him the footings of the wall had been prepared properly, were substantial and suitable for the masonry above. In cross-examination he expressed the opinion that there was no short term risk of collapse and overall no risk of collapse at all. On the other hand, the evidence given by Professor Fleming, Mr. King and Mr. Semple was critical of the wall. They considered that the structural integrity and stability of the wall was questionable and, in this regard, commented on the barely adequate foundations, the lack of a scarcement, the existence of a gap at the join between the wall and the Farmhouse retaining wall and the risk of erosion extending below the founds because of the weepholes. There was an appreciable risk that the wall could fall into the mill lade. Criticism was also directed to the fact that the calculations upon which Mr. Wales proceeded, had not been produced nor had his conclusions been put to the pursuers' witnesses. Objection had been taken at the time and this was renewed. I do not consider that this evidence of Mr. Wales falls to be excluded but it must be taken against the background that it was not put to the pursuers' witnesses. On the other hand, Mr. Semple stated that while he had concerns abo
[77] Mr. Semple accepted that there were various ways in which the wall could be supported to overcome any risk of instability. He instanced buttressing or tying back into some other structure, although he also said that he would not have passed the work if he had been the supervising officer on site. He also stated that the work required for removal of the wall would involve removal of the soil behind the wall and demolition of the existing wall. No estimate of the cost of executing this work is referred to in evidence. A difficulty arises in that any order for removal could only extend to that part of the wall which has been built on the property which, on this hypothesis, belongs to the pursuers. Counsel for the pursuers suggested that the wall is one which is liable to removal under the procedure contained in section 10 of the Building (Scotland)Act 1959 as amended. But this statutory procedure has not been instigated. Nor is it certain that it could have been invoked, or if it could, whether any order for removal would have followed. I do not consider that that is a proper basis upon which to make any order for removal. Moreover, it is not possible to determine exactly how an order for removal of the wall could lead to any appropriate restoration of the nature sought in the second conclusion of the summons, namely, to restore the Mill Lade to its state and condition immediately prior to the encroachment not least against the fact that the operations of Mr. Watson within the garden ground belonging to the Cottage have made substantial changes at the top of the bank.
[78] In these circumstances, I would have reached the view that the only fair way in which to resolve the matter was to provide a sum by way of compensation. For the pursuers, it was submitted that, in such an event, it would be appropriate to proceed by way of a broad axe approach. Reference was made to Alvis v. Harrison 1989 SC 136. I did not understand counsel for the defender to demur to this. Indeed, both parties led evidence on the manner in which an order for compensation might be approached. Mr. King, for the pursuers, considered that an appropriate way was to consider the value of the Cottage in its present condition, improved by a new garden area, as compared with that area as it would have been before. He estimated the value of the Cottage beforehand as £50,000 and its enhanced value as being some 10% greater, i.e. £55,000. The area would, in his estimation, represent a value of £2000, if not available other than by purchase to the owner of the Cottage, that sum being the figure which the owner would require to pay to acquire the ground before improving it. He found more difficulty in determining whether the existence of the changes to the banking as compared with the banking in its natural state, would have an effect upon the value otherwise of the Old Mill. Mr. Morrison, for the defender, took the view that the change to the banking affected by the works would not have a detrimental effect upon the amenity and hence of the value of the Old Mill. For a sale of the area in the condition it had been to the proprietor of the Cottage, he considered that a price of £2000, while not inconceivable, was on the high side. He did not disagree with the proposition that the general principle should be that upon which Mr. King made his assessment. In this matter I found Mr. King more persuasive. I would therefore have made no orders relative to conclusions 2,3,4 or 5 but would have made an order for payment in the sum of £2000 by way of compensation in terms of conclusion 6 of the summons.
Repair of the south east wall between the Old Mill and the downstream levee, the inner lade wall
[79] This matter is the subject of conclusions 8, 9 and 10. For the pursuers it was stated that these conclusions are based upon the "agreement" in March or April 1996 whereby Mr. Watson on behalf of the defender undertook to repair the inner lade wall.
Counsel accepted that if all that was established was a declaration of intent and not a promise, then he could not succeed in relation to all the conclusions.
[80] I am in no doubt upon the evidence of Mrs. Summers and Mr. Watson in particular, and also from what Dr. Cumming understood of the conversation between them, that at the discussion between Mrs. Summers and Mr. Watson at which Dr. Cumming was present, the subject of the repair of that damaged part of the south east wall of the lade which lay between the Old Mill and the downstream levee which is visible in photographs, was the subject of a statement by Mr. Watson that that portion of the wall was to be repaired. It was then and still remains in poor condition and in need of substantial repair, as is admitted by the defender on record and, indeed, in the course of the proof. The defender, as is admitted by her on record, is bound to uphold and maintain at her own expense this part of the lade wall in particular. I am satisfied that by early 1996 it was the intention of the defender and Mr. Watson to carry out these repairs during the course of their renovation of the Cottage.
[81] As submitted at the conclusion of the proof, the contention for the pursuers was that there had been a binding agreement reached between Mrs. Summers and Mr. Watson to the effect that Mr. Watson would build up the damaged section and improve it. I observe in passing that, as the pursuers' pleadings are framed, they suggest that the undertaking was one given in relation to "those parts of the south east wall of the Mill Lade along the lines A to B and C to D shown on the Plan..." I do not find anything in the conversation which took place at the initial discussion which imported an "agreement" in relation to the inner lade wall separate and distinct from the obligation arising in terms of the defender's title, whether it was in the sense of any precise timetable being agreed for the repair or as being any part of any other "agreement" which might apply to what lay downstream of the levee. I consider that, at most, what Mr. Watson said could only be construed as a declaration of intent and one given in the knowledge that there was an obligation upon the defender to maintain that area of wall. I would add that when regard is had to the terms of the pursuers' averments in articles 8 and 9 of the condescendence, it is plain that the true foundation for the pursuers' case rests on the primary obligation arising from the defender's title. That obligation remains to be implemented by the defender. I am satisfied that there was no "agreement" of a kind such as would entitle the pursuers to have the work carried out by them now at the expense of the defender, upon the basis that there had been a breach of some specific term of an agreement which related to the time within which such repair work was to have been executed.
[82] The obligation of repair of the inner lade wall remains to be met by the defender. It is, therefore, plain that the pursuers are entitled to an order upon the defender in terms of conclusion 8 requiring her to uphold and maintain at her own expense the south east wall of the mill lade so far as it relates to that part of the south east wall between the Old Mill and the downstream levee. There was some suggestion in Mr. Watson's evidence that the necessary repair work had not been carried out by reason of the terms of the interim interdict pronounced on 19 June 1997. This prohibited the defender and any person on her behalf, amongst other things, from entering the mill lade. I do not believe that this was any part of the reason why no repair has been undertaken on the part of the defender. It would have been open to the defender to have sought to have the interdict in part recalled to enable the work to be done, if it could only properly to be carried out if some encroachment on the mill lade were to be permitted. Rather, I consider it to be clear from the correspondence passing between the parties and their agents, as well as from the attitudes of both Mrs. Summers and Mr. Watson, as exemplified in their evidence and otherwise, that the parties were at loggerheads some time before the interim order was pronounced. I consider that the likeliest reason for the failure to have embarked upon any such repair work was that Mr. Watson was not prepared to undertake such work in the context of the ongoing dispute between the parties. This is consistent with the attitude which he adopted at the meeting with the pursuers in September 1996. On the other hand, at this stage, I do not consider that the pursuers are entitled to undertake these repairs at their own hand. So much was conceded by counsel for the pursuers in that he accepted that the pursuers could not even insist at present that the work of repair should be carried out by appropriate tradesmen and not by Mr. Watson. I consider that this concession was inevitable having regard to the terms of the obligation itself. It will be for parties to work out how the repair work is to be undertaken. In the course of his evidence, for instance, Mr. Watson made reference to an intention to have a dry stone dyker carry out this work. It may be necessary for such work properly to be executed, that those undertaking the work should encroach upon, and any necessary temporary structural support be placed upon, the bed of the inner mill lade. Since the obligation is one which benefits the pursuers, it will be necessary for them to agree to this to enable the work to be properly executed. At present, I will ordain the defender to uphold and maintain at her own expense the south east wall of the mill lade at Craigforth, Stirling subject to the foregoing restriction as to the area of the wall to which the order will apply. I will not at this stage make any further additional order in terms of conclusion 8 of the summons. This will enable parties to discuss how the work can proceed, so that it can be undertaken and completed within a reasonable time. For that purpose I shall put the case out by order. I shall meantime make no order in terms of conclusions 9 and 10.
Damage to the downstream levee
[83] The pursuers' case on this issue is founded upon the averments in article 7 of the condescendence and in article 10 relative to the digging of a number of trenches and channel in the garden of the Cottage. These begin with the assertion that the defender has, through Mr. Watson, intimated that she proposes to carry out further work that will involve encroachment upon the pursuers' property by way of attempting "to enlarge or extend" the lower wall built by Mr. Watson. The pursuers complain that on Friday 13 June 1997 Mr. Watson commenced operations in which he removed earth from the downstream levee and also removed "several very large stones from the south east wall of the mill lade at or about where that wall abuts the downstream levee". It is said that the effect of these operations is to negate the ability of the levee in preventing flood waters from encroaching on to "the Old Mill and in particular the Old Mill building". The pursuers seek interdict in the form of the 7th and 12th conclusions. In addition, the pursuers claim for the cost of temporary works by way of sandbag wall repairs and their subsequent reinstatement. They also claim for the cost of the permanent repairs to the downstream levee. These claims as stated as ones for "wrongful damage".
[84] The defender, in reply, admits that on or about 13 June 1997 Mr. Watson dug a trench along the back of the Cottage to lay a pipe and that this was wholly within the defender's property. It is also admitted that Mr. Watson removed stones "from along the top of the south east wall where it is buried by the levee". The excavation of the trench revealed a disused septic tank within the defender's property adjacent to the point where the levee closes off the mill lade. It is said that three large stones were removed and that these stones did not form part of the wall of the mill lade. Where the levee abuts the defender's property, the junction, it is said, is formed by the earth or clay of the levee being compacted against the rough stone of the remains of the south east wall. It is claimed that such a joint is inherently unlikely to form a watertight seal against the pressure of flood water and that leakage is inevitable.
Design of the levee
[85] The design of the downstream levee was spoken to by Professor Fleming and is described in his report. It is formed as a clay filled bank. Both it and its upstream neighbour have a pipe or valve arrangement which in times of flood can be closed to prevent water entering the area between them. Prior to June 1997 the dewatering of the mill lade in times of flood was handled by 2 pumps installed by the pursuers. I accept Professor Fleming's evidence that the floods of 20 February 1997 in the River Forth led to a gauge height in the river of 2.635 metres about gauge zero. The pursuers' evidence was that for this flood level the capacity of the existing two pumps had been adequate to maintain the mill lade dewatering.
Work done for the Defender in the vicinity of the levee
[86] The evidence of Mr. Watson was that there had been problems within the Cottage in that the pipe leading effluent from the bathroom at the rear of the Cottage was not working. It was impossible to rod the pipe so that effluent was accumulating. To overcome this problem, he decided to lead a new pipe to a septic tank situated within the garden ground of the Cottage, which tank also served the Farmhouse. Effluent from the front of the Cottage was led into this septic tank. Because of the levels, it would not be possible to lead effluent from the rear of the Cottage by gravity to the tank. Instead, Mr. Watson had it in mind to pump effluent to the top of the tank. This work was begun by Mr. Watson about October 1996 and continued into 1997. In the main he worked on his own. Prior to October 1996 the condition of the area at the back of the Cottage beside the levee was as shown in the photograph no. 19/5W. The initial excavation was at the rear of the Cottage. It was one of the subjects of the letter from the pursuers' solicitors dated 15 October 1996 addressed to Mr. Watson. Reference was made to "the recent removal of large existing masonry stones from the junction of the levee and south east Lade wall." In the same letter the agents reminded Mr. Watson "of the need to maintain the integrity of the levee as part of the flood mitigation scheme for the Old Mill..." and also advised that "there should be no repetition of raw sewage draining from the Cottage into the Lade". These stones were identified by Mrs. Summers as stones which formed part of a line of stones shown in the photograph no.19/5A, although I am satisfied that the line of the trench itself was within the ground belonging to the defender. This photograph was taken while the levee was in the course of construction and represented the state of the junction between the levee and the south east wall of the lade as it existed at that time. As work progressed with the digging of a trench to enable a new pipe to be taken along the route of an existing drainage pipe, an empty septic tank was found. It was dry and was covered by three large stones lying in a mixture of soil and rubble as shown in photograph no.19/5E. Mr. Watson estimated that the top of the tank lay about two and half feet below the surface of the ground. In his evidence Mr. Watson stated that a contractor repaired the septic tank and that a temporary soakaway was put in place which was carried down the banking on the downstream side of the levee. This took the place of a pipe which originally passed through the levee as shown in photograph nos. 21/35/5 (taken in Spring 1993). Above the septic tank were three large stones in the position shown in the photographs nos. 19/5B, C and D. These were subsequently removed from their position by Mr. Watson as appears from the photograph 19/5E. I am satisfied that these stones, as they lay in place prior to their removal, were materially below the ground level on the Cottage side of the levee as is shown in photograph no 19/5G. The next stage in the creation of the new pipe track was carried out by means of a mechanical digger. This was brought by Mr. Watson onto site on about 13 June 1997. Its presence was recorded by Mrs. Summers in a calendar entry and also on video. This work involved the construction of a trench leading from the old septic tank to the shared septic tank in the garden of the Cottage shown in photographs nos. 19/5E and F. The photographs themselves suggest that in the course of this work, material was taken from a point on the downstream side of the levee. This was the evidence of Mrs. Summers. She spoke to being so concerned that on the following day, 14 June 1997, she called the police. Dr. Cumming, although not present at the time but who had advised his sister to call the police, subsequently observed the damage. Both he and Mr. Summers spoke to damage being occasione
[87] It remains only to note that Mr Watson in the course of his cross-examination admitted that the sandbag wall had been placed in position to fill the hole that he had made by removing stones. Both he and the defender accepted that in carrying out the work of digging the trench for new pipe, he was acting as agent for the defender.
[88] Accordingly, the defender must bear responsibility for the expenses occasioned by the need to construct the sandbag barrier. The effect of the barrier is demonstrated in photograph no.21/35/45, taken in January 1999, where the top of the barrier is level with the top the levee. Professor Fleming observed that in this photograph it was apparent that the ground behind the barrier had been levelled but expressed the opinion that it would require to be compacted to minimise permeability. However, I also bear in mind that the work done by Mr. Allison was carried out in order to check erosion of the ground at the point from which Mr. Watson removed various stones, including the three stones referred to before. These stones had been placed in position to provide stability over the area between the ash tree and the levee. It was this stability which has, at the very least, been undermined, if not removed, by the operations of Mr. Watson and which creates the risk of water making its way round the levee and into the inner lade. The levee was constructed with the consent of the proprietors of the Cottage and was permitted to be laid against their property as a permanent structure. The pursuers are therefore entitled to have its integrity protected. At the very least, the pursuers are entitled to have not only the levee itself repaired where it has been damaged by the operations of Mr. Watson but also to have the defender restore the area adjacent to it to a degree of stability commensurate with that which had existed prior to these operations. The sandbag repair is only temporary. Even the carrying of a wall round the ash tree from the end of the new wall up to the level of the second wall constructed by Mr. Watson, will not afford any sufficient protection unless the ground immediately adjacent to the levee and along to the ash tree is sufficiently secured with stonework to the same degree and effect as before, such that it extends to pass the Cottage end of the levee at a level at least as high as that of the top of the levee.
[89] In my opinion, the pursuers are entitled, first of all, to the cost of the engineering advice and the cost of the temporary repairs carried out to alleviate the damage to the levee itself caused by Mr. Watson's operations. These were spoken to by Mr. Semple and Mr. Diack. The account for Mr. Semple's involvement amounted to £866.72 and was paid on 5 December 1997 (see invoice no. 21/24 from D.C. Farquhar & Partners). The cost of the building of the sandbag wall was £998.75 (see invoice no. 21/27 dated 20 October 1997 from Diack & Macaulay Ltd.). While no receipt was produced for this invoice, I consider that it is reasonable to assume that it was paid within some 30 days. In the light of my determination with regard to the further damage to the sandbag wall, the minor account of £150 for their reinstatement paid to Diack & Macaulay Ltd. on 7 February 1998 falls to be excluded.
[90] In addition, the pursuers are entitled to the cost of repairs to the levee, which is their property. This has not been separately estimated. Furthermore, while the pursuers do not own the area of banking immediately adjacent to and downstream of the levee, they are entitled to call upon the defender to restore that area of ground disturbed by those operations to the same condition of stability, at least, as existed prior to the operations which had the effect of destroying the stability and reducing the height of the adjacent area. In this regard the pursuers instructed Mr. Semple to investigate and report upon permanent remedial measures to this end. I consider that these were costs reasonably incurred. Mr. Semple spoke to the work undertaken for that purpose, including a site visit, and to the relevant invoices for £167.20 and £266.14 paid on 12 January 1998 and 17 February 1998 respectively.
[91] The estimate produced for the pursuers by Diack & Macaulay Ltd., no. 21/23, in the sum of £3,600 plus VAT, proceeded on the basis that the work to be done would extend over the line of the temporary sandbag wall as well as the levee and would involve access over the defender's property. I consider that the works suggested appear to be reasonable insofar as it involves stability being produced by the return of stonework along the length between the levee and the ash tree where that has been disturbed or removed. However, it appears to me that, for the reasons which I give later in relation to the allegation of wrongful damage, at this stage it would be appropriate to allow parties to consider my determination before any order is pronounced as may be appropriate to secure a return to that the same degree of stability as existed prior to the operations of Mr. Watson, is achieved. I shall, however, pronounce decree for payment of the following sums:
- the sum of £866.72 with interest thereon at the judicial rate from 5 December 1997 until payment
- the sum of £998.75 with interest thereon at the judicial rate from 20 November 1997 until payment
- the sum of £167.20 with interest thereon at the judicial rate from 12 January 1998 until payment
- the sum of £266.14 with interest thereon at the judicial rate from 17 February 1998 until payment.
Flood of October 1998
[92] There was no dispute that in October 1998 a flood occurred which, without overtopping the downstream levee, caused an inflow of water sufficiently great that the two pumps which the pursuers had installed against the eventuality of flooding and which had proved sufficient to deal with a similar flood in February 1997, could not cope.
[93] The evidence was that on neither occasion was the levee overtopped. Professor Fleming in his report noted that in the flood of 20 February 1997 which led to a gauge height in the river of 2.635 metres above gauge zero, the dewatering was adequately handled by two pumps. On the contrary, a similar event which on 22 October 1998 led to a gauge height in the river of 2.748 metres above gauge zero, found that the same pumps were unable to cope with the water which entered the inner lade. The situation in February 1997 is recorded in photograph no. 21/35/21. While the photograph demonstrates that the downstream levee is not impermeable, it is clear that the two pumps which were being used, were able to maintain the water level within the inner lade as a very low level. Mrs. Summers described the water on the later occasion in October 1998, as coming right through the floor of the house. She said that prior to February 1997 the flood events had been controlled by one pump in the lade and one in the garden. By February 1997 the pursuers used two pumps in the lade and one in the garden. The flood event in October 1998 and its aftermath were described by her in detail. Following the later event in October 1998, the pursuers bought a third pump at a cost of £611.11. The aftermath of the flood was also recorded on video. It involved mopping up and cleaning operations within the ground floor rooms together with some repainting.
[94] Professor Fleming gave as his opinion that the reason for the flooding problem in October 1998 arose from the disturbance of the ground through which the trenches had been taken. He noted, in the course of a visit to the Old Mill in 1999, that most of the open trenchwork, which he had observed on his visit on 11 July 1997, had been filled in and he also saw the sandbag wall erected in October 1997. In re-examination he explained that seepage would always occur through the strata in the area, but that disturbance of the ground will increase seepage. If disturbed ground was not compacted properly thereafter, seepage could occur to a significant extent.
[95] The only competing explanation was advanced by the defender's witness, Mr. Wales. He suggested that the point at which the downstream levee met the face of the masonry wall gave rise to the chance of seepage because of the relatively smooth surface of the latter. In cross-examination he accepted that Professor Fleming was a highly respected authority on the management of river systems. He also accepted that disturbance of ground in the vicinity of the levee would have an effect upon the flow of water through it, making it easier for water to do so.
[96] On a balance of probabilities I am satisfied that the reason given by Professor Fleming for the increase of the flow of water into the inner lade which must have taken place at the time of the flood in October 1998 is to be preferred. Accordingly, I hold it to be proved that the removal of stones along the area beside the levee and the disturbance of the ground behind for the installation of pipework along the area behind the Cottage between and beyond each of the downstream and upstream faces of the downstream levee, was sufficient to lead to an additional inflow of water such that the two pumps could not cope with the total inflow. This resulted directly from the disturbance that the operations of Mr. Watson created in the area. There was insufficient compaction when the trenches were being filled in. There is a continuing risk of similar flooding due to the absence of any protection by way of stonework between the levee and the ash tree to offset the lack of sufficient compaction in the whole area which was disturbed by Mr. Watson's operations between the ash tree and the back of the Cottage.
[97] This part of the pursuers' case is founded upon nuisance in that the flooding was the necessary and natural result of the defender's operations on her land. As pleaded, the case appears to proceed upon the basis that the trenches and channels, to which reference was made in the letter from the pursuers' agents dated 21 February 1997, had not been removed or filled in. Under reference to Kennedy v. Glenbelle Ltd. 1996 SLT 96, it was maintained for the defenders that a necessary or natural consequence was to be judged by an objective test. Backfilling would still allow for a degree of water penetration. That being so, such penetration was not an unusual or unnatural hazard. There was no sufficient evidence in the case to establish culpa.
[98] With respect to this argument, it is to misunderstand the fact that, on the evidence of Professor Fleming, it is plain that if due care had been taken with infilling and compaction, the degree to which water would have been able to permeate the strata would have been limited to that which occurred prior to the disturbance taking place. The defender was bound to return the disturbed ground to a similar degree of stability as was available prior to disturbance. I am satisfied that this has not occurred. That being so, I am satisfied that the defender has created a nuisance of a kind and of a degree which entitles the pursuers to seek damages by way of recompense for the provision of a third pump and also for the loss and inconvenience caused by the flooding. Counsel for the pursuers suggested that a total figure of £2500 with interest from the date when payment was made for the third pump, namely 2 November 1998, would be appropriate. While counsel for the defender suggested a reduced figure, I am satisfied that the figure proposed for the pursuers is reasonable. I will accordingly grant decree for payment to the pursuers of the sum of £2500 with interest thereon at the judicial rate from 2 November 1998 until payment.
[99] The provision of a third pump may serve to reduce the consequences of nuisance to a point where it ceases to be plus quam tolerabile. However, it is a temporary expedient. It is not a permanent solution. This last issue is allied to the issue of wrongful damage which has been caused by the operations of Mr. Watson in the area of and around the levee itself. It was submitted for the defender that the appropriate solution was that suggested by Mr. Watson at his meeting with the pursuers in September 1996. This was to have the new wall carried on to meet the south east wall of the mill lade at the junction between it and the levee. This manner of permanent defence is referred to in the defender's pleadings. But this would require the levee to be disturbed and would therefore require the pursuers' consent. On the other hand, the solution which is adopted in the estimate produced by Mr. Diack, requires that such work be done on subjects owned by the defender and so would require, in the first place, the defender's consent to its being undertaken. I am not satisfied that, in the absence of consideration by each party of the consequences of my principal determination on title, it would be appropriate to make any order in hoc statu. I shall put the case out by order so that parties can consider their position and to enable them to consider what steps should be taken to secure the integrity of the downstream levee as it was prior to the operations of Mr. Watson and the manner in which that may best be achieved. Insofar as these operations have given rise to seventh, eleventh and twelfth conclusions of the summons, I do not consider that it is appropriate to pronounce interdict in terms thereof. The boundary between the respective subjects is fixed by my determination. I do not consider that there is any ground on the part of the pursuers, in the light of the evidence led before me, for reasonable apprehension that the defender, or Mr. Watson or other person on her behalf, will trespass upon or damage the Old Mill property in the manner specified in any of these conclusions.
Lighting
[100] This matter relates to the erection of lighting for the defender on the middle trunk of the three branched ash tree. It is averred that the tree belongs to the pursuers and that the defender having been called upon to remove the lights, has delayed or refused to do so. In the light of my earlier decision, I hold that the ash trees lies within the property owned by the defender. Accordingly there is no justification for the removal of the lights on that ground.
[101] However, the pursuers also aver that even if the pursuers do not own the tree, the defender should be ordained to change the direction in which the lights are directed. The complaint centres upon the manner in which the lights have been installed. This is said to be spiteful and unnecessary in that the lights do not face the defender's garden, that they have been switched on for lengthy periods in the evening and have shone directly into the pursuers' house with the consequence of upsetting, distressing and inconveniencing the pursuers. It is said that such conduct on the part of the defender is spiteful and constitutes a nuisance which the pursuers are not bound to tolerate. It further said that it is part of a general campaign of harassment and intimidating behaviour being carried out by Mr. Watson, on behalf of the defender.
[102] In reply the defender denies the allegations. She explains that the lights were installed after the defender has suffered damage by intruders at the rear of her property. The lights were operated by sensors. And after complaints by the pursuers, Mr. Watson adjusted the light shining along the back of the defender's property so that it would not shine directly into the pursuers' property.
[103] I am satisfied on the evidence that in August 1998 two lights were installed on the middle trunk of the ash tree. In particular one was placed at a height and at a position as is shown in the photograph no. 21/35/30. The cable for the lights had earlier been taken to the tree in June 1998 and this had been observed and noted by Mrs. Summers in a calendar entry for 12 June 1998. I accept the evidence of the defender and of Mr. Watson, in cross-examination, that a qualified electrician had installed the cable and the lights. In addition I accept the evidence of Mr. Watson that a further two lights were also installed, one on a telegraph pole in the garden and the other on the end of the Cottage. I further accept the evidence of the defender and Mr. Watson that it was intended that one of the two lights installed on the ash tree should be directed to shine down on and light the area in which the oil tank was placed at the north end of the Cottage as shown in photograph no. 21/35/33.
[104] I accept their evidence that this installation was occasion by, and was related to, earlier incidents of vandalism at the Cottage. It also appears from Mr. Watson's evidence that the two lights on the ash tree, the second of which faced down the lade, were operated both by sensors and by means of a switch in a greenhouse in the garden.
[105] As is clear from the pleadings, and indeed from the evidence of Mrs. Summers herself, the positioning of the one light in particular, so that it shone in the direction of the Old Mill, has been regarded as a deliberate and spiteful act. It is undoubtedly the case that by August 1998 relations between the parties were strained to the point where the actions of one or other was regarded with suspicion and hostility. I accept the evidence of Mrs. Summers that the light was first observed on 29 August 1998 and that the following day she complained to the police about the lighting. She said that after the police left, one spotlight went off. She referred to entries in her calendar for both dates and to entries on various occasions thereafter recording periods during which the lights came on for varying periods. Support for her evidence came from Mr. Summers, who took a video of the scene on 29 and on 30 August 1998, which indicated the degree of light that affected the Old Mill, and from Dr. Cumming. The video indicated that one light appeared to be directed onto the levee and the other towards the house. While Mrs. Summers accepted that one spotlight on the tree had been "turned away", but I have no difficulty in concluding from the evidence given for the pursuers, which I accept, that there was, and has continued to be, a substantial degree of intrusion and annoyance to the occupants of the Old Mill because of the degree of light. I consider that this is of a nature which can properly be regarded as a nuisance such that it is plus quam tolerabile. I am satisfied that the pursuers are entitled to have this nuisance abated.
[106] Mr. Watson spoke to there having been difficulties with the sensor at the outset which had been subsequently cured. He also spoke to an adjustment made by him after installation of the light shining towards the back of the Cottage by pointing it down to prevent nuisance of light shining into the Old Mill. In cross-examination he spoke to the fact that the police had been called and that since August 1998 there had been numerous complaints on behalf of the pursuers. Both he and the defender accepted that the pursuers were not being unduly sensitive about the issue. Ultimately Mr. Watson in cross-examination offered to discuss the matter of how the nuisance might be abated.
[107] In the light of this offer, and standing my determination on the principal issue of the boundary dispute between the pursuers' and defender's property, I consider that the suggestion of counsel for the pursuers that the case be put out by order to determine whether some resolution of this matter, short of interdict, can be achieved in this matter, is both reasonable and appropriate.
[108] In the result, I shall repel the first, second, third, fourth and fifth pleas-in-law for the pursuers and sustain the second plea-in-law for the defender so far as directed to the construction of the wall referred to in the first conclusion of the summons. I shall sustain the sixth plea-in-law for the pursuers to the extent of pronouncing an order in terms of the eighth conclusion of the summons that the defender is bound to uphold and maintain at her own expense the south east wall of the mill lade at Craigforth, Stirling between the points A and B or thereby on the LOY plan, no. 21/6 of process and meantime shall make no further order in terms of the sixth plea-in-law for the pursuers. I shall sustain the ninth and tenth pleas-in-law for the pursuers and pronounce decree for payment to the pursuers in the sums specified in paragraph 92 of this opinion with interest as there stated. I shall make no further order meantime in terms of the ninth and tenth pleas-in-law. I shall sustain the fourteenth and fifteenth pleas-in-law for the pursuers and pronounce decree for payment to the pursuers of the sum specified in paragraph 98 of this opinion with interest as there stated. I shall meantime make no further order in terms of fourteenth and fifteenth pleas-in-law. I shall repel the eleventh plea-in-law for the pursuers but shall meantime make no order in terms of the twelfth plea-in law for the pursuers. I shall sustain the sixth plea-in-law for the defender and repel the fifth, seventh and thirteenth pleas-in-law for the pursuers. Quoad ultra I shall repel the defender's pleas-in-law. I shall put the case out by order for the purposes specified in paragraphs 99 and 108 of this opinion. I have meantime reserved the matter of expenses and of certification of witnesses.
Breach of Interim Interdict
[109] The matters giving rise to the complaint of breach of interim interdict against the defender are set out in the Minute. The Minute itself was first lodged on 30 January 1998.
[110] On 19 June 1997 the Lord Ordinary on the motion of the pursuers, granted interim interdict against the defender and any person on her behalf from, amongst other things, entering upon the Old Mill and in particular, the Mill Lade or erecting or attempting to erect any wall or other structures within the Old Mill and in particular the Mill Lade. I note at the outset that at the conclusion of the proof counsel for the pursuers amended the first conclusion of the summons which sought declarator relating to the defender's encroachment on the pursuers' property by substituting for the phrase "the bed of the Mill Lade" the phrase "the bed and bank of the Mill Lade". In the summons it was specifically stated that the bed of the Mill Lade is owned by the pursuers. Furthermore the encroachment complained of was in relation to the wall running along part of the bed of the Mill Lade. In approaching the matter of breach it is necessary to bear in mind that the standard of proof in proceedings for breach of interdict is proof beyond reasonable doubt. See Gribben v. Gribben 1976 SLT 266. Mr. Robertson for the defender also submitted that when trespass or encroachment of any kind is forbidden, definite boundaries must generally be stated, for without these the interdict does not become effective. In making this submission he referred to Dalgleish v. Duke of Atholl 1825 1 W. & S. 590.
[111] In my opinion, the extent of the Court's order for interim interdict requires to be read against the original pleadings before the Court when the order was made. Accordingly, the encroachment to which the interim interdict was directed, was encroachment upon the "bed of the Mill Lade". However, insofar as the interim interdict was more generally directed against entering upon the Old Mill or erecting or attempting to erect any structures within the Old Mill, I am satisfied that it was clear that this part of the order extended to cover the downstream levee, which formed part of the Old Mill property.
[112] The first matter which is complained of in the Minute relates to the erection of the timber boarding which is to be seen in the photographs nos 21/35/32, 33 and 45 taken respectively in November 1997, December 1997 and January 1999. This timber boarding consisted of two pieces of boarding. One was placed immediately behind the unfinished end of the wall constructed by Mr. Watson at a point where the board lies adjacent to one of the trunks of the ash tree. At right angles to it and secured in position by a post, was a second board. This board ran back towards the large gate post stone imbedded between the other two trunks of the tree. There was no dispute that the timber boarding was placed in position by Mr. Watson. He explained that he carried out the work in order to prevent material being washed away at the point where the wall came to an end. I am satisfied, on the evidence of Mrs. Summers under reference to a contemporary entry on a calendar, no.21/29, that the boarding was erected on 7 November 1997. She said that she thought that she had seen Mr. Watson stepping over in the area of the sandbag wall but this does not seem to be supported by the calendar entry. This was to the effect that the work was done while she was away from the house. No other witness led for the pursuers spoke to this matter. There was a suggestion put to Mr. Watson that when he had been erecting the boarding, he had been seen coming up from the levee. He denied that this was the case. I find no evidence to establish that what was done by Mr. Watson constituted a breach of the Court's order on the part of the defender, although this work would fall within the general authority that Mr. Watson had to do work on her behalf in relation to the Cottage. I do not consider that the timber boarding was an addition to, modification of or alteration to the wall constructed by Mr. Watson at its south east end. I find no reason to reject his explanation that the boarding was erected to prevent the erosion of soil from the banking. Nor do I find any evidence to support the allegation in statement 5 that Mr. Watson must have entered upon the Mill Lade as that falls to be understood in terms of the Court's order. It was not suggested that he had carried out the work by working from the bed of the mill lade. Indeed, he said that in carrying out the work, he had worked within the line of the wall. Nor was there any evidence which supports the allegation that Mr. Watson was seen that day walking over the sandbag wall back and forth. In these circumstances, I can find no evidence that the defender was in breach of the interim interdict. This finding is fortified by my principal conclusion that the banking at the point downstream of the levee does not form any part of the Old Mill subjects. Where the timber boarding was erected forms part of the Cottage subjects. Therefore there was no trespass.
[113] The next matter complained of in the Minute relates to the damage to the sandbag wall referred to in the principal action. It is a matter of admission on the part of the defender that the proposal to erect a sandbag wall was intimated to her. The terms of the letter of 1 October 1997 (no. 21/77 of process) from the pursuers' solicitors, indicate that there had been discussion between Mr. Watson and both Mr. Semple and Mr. Diack as to the position of the sandbag wall and as to who was to execute the work. The same letter records the matter of a threat made by Mr. Watson to remove the sandbags "to-night". It appears that some concern had been expressed about the work affecting the septic tanks. From Mrs. Summers' evidence it would appear that this was a matter of report by her to the solicitors and that the threat was made to Mr Diack. Mr. Diack suggested that he had not been present on site prior to the work of construction of the sandbag wall being begun, but said that he did recollect a threat being made. In his evidence in chief Mr. Watson stated that when the workmen were putting the sandbags in position, he had said that he would remove them. In cross-examination he admitted that he was angry at the time that the work was instructed. I have no hesitation in holding that he did utter the threat to which reference was made in the letter and that it was made to Mr. Diack. I am also satisfied that the threat was made at the time when work was being executed on 1 October 1997 and not before. Mr. Watson said that he had telephoned the defender's solicitors and that, having done so, he was quite happy to leave the sandbags. In the subsequent response to the first letter also dated 1 October 1997 the solicitors for the defender referred to a conversation with their clients. In the letter, while reserving the defender's position as to ownership of the ground over which the sandbag wall was to be built, they stated that their clients agreed to the sandbag wall being placed in position and to its remaining there for a period. From the terms of this letter it would appear that work was already under way and that there had been some dispute as to the line that had been agreed. This matter of disagreement was not fully explored in evidence and, in particular, there was no cross-examination of the pursuers' witnesses to the effect that, as Mr. Watson suggested in evidence in chief, it was to be a ten foot high wall. However, it is clear from his evidence that Mr. Watson was concerned to suggest that the sandbag wall should link the end of the wall constructed by him with the levee and that the issue of where the wall was to be positioned, had been a matter of discussion.
[114] As already noted before, there is no dispute that the sandbags were disturbed and there is photographic evidence of the extent of the damage. I also accept the evidence from Mr. Diack that the sandbags, which were of mixed sand and cement, weighed between 30 and 40 lbs. each. It was submitted that they were of sufficient weight that it was improbable that they could have slipped or moved without some human agency. In statement 6 of the Minute the pursuers state that they believe and aver that the defender authorised Mr. Watson on her behalf to damage the sandbag wall. It is also said that in order to move the sandbags, which must have taken considerable effort, Mr. Watson must have entered upon the Mill Lade. It was accepted by counsel for the pursuers that all the evidence was to the effect that the damage occurred between Friday, 7th November, and Wednesday, 12th November 1997. On that date the damage was noted by Mrs. Summers after it was brought to her attention by her brother. In their pleadings, the pursuers aver that on or about Wednesday 12th November, Mr. Watson was seen in the vicinity of the sandbags and that about an hour later it was noticed that the sandbag wall had been disturbed and damaged. There was no evidence given by any of Mrs. Summers, her husband or Dr. Cumming or any other witness to this effect. Mrs. Summers' brother, Dr. Cumming, gave evidence that he had noted the damage while walking on the Old Mill property late one morning. This can only have been on Wednesday 12 November 1997. He was at the time staying at the Old Mill. He said that two days before he had observed from an upstairs bedroom Mr. Watson appearing up behind the levee from the lade. Mrs. Summers, however, gave evidence that the police had been called on 13 November 1997, that a police constable had attended and that she had heard from him about damage to an oil tank on the defender's property. The evidence given by the defender herself and by Mr. Watson was that there appeared to have been two incidents. In the first, which occurred while Mr. Watson was absent from the house overnight on Friday, 7 November, only a few sandbags had been displaced. The second occasion had taken place a day or so later. Both witnesses denied any responsibility for the damage. Both stated that there had been acts of vandalism involving, amongst other things, damage to the oil tank for the Cottage, which was at the rear of the Cottage near the sandbag wall, and a wheelbarrow. Mr. Watson said that he had reported one act of vandalism, namely that involving the oil tank and consequent loss of oil, to the police. The defender herself denied having authorised Mr. Watson to damage the sandbag wall, there being no suggestion made to her that she was personally responsible for touching the sandbag wall. Mr. Watson agreed in cross-examination that no information about the damage had been passed to the pursuers or to their solicitors.
[115] Counsel for the pursuers agreed that the evidence against the defender and Mr. Watson was circumstantial. Reliance was placed upon the fact that no evidence was led for the defender to support the statement that Mr. Watson had been staying with a friend on the Friday night and no witness or documentary evidence produced to speak to any repair to the oil tank. It was said that the damage to the oil tank and the loss of oil were not satisfactorily explained. It was also said that the damage to the wheelbarrow, which on record was said to have been smashed, was described in evidence by Mr. Watson in different terms. The weight of the sandbags was such that their disturbance could only be explained by some human intervention. It was unlikely that an intruder would be responsible, having regard to the state of the surrounding area and garden ground at the time as also to the admitted fact that two terrier dogs were kept at nights within a fenced area in the garden at the side of the Cottage.
[116] I am satisfied that the evidence goes nowhere near to establishing beyond reasonable doubt either that one or other of the defender and Mr. Watson was responsible for disturbing the sandbag wall, let alone proving the essential element for breach of interim interdict, namely, that the defender authorised Mr. Watson to disturb the sandbag wall on her behalf. She had agreed in evidence that Mr. Watson was acting with her authority in putting up the wall and in the various works within her property. This allegation involves an act of a different character from those which, she agreed, she had authorised. I have already noted that an important averment in this part of the case, namely, the allegation that Mr. Watson had been seen in the vicinity of the sandbags very shortly before the damage was observed, was not supported at all in evidence. The credibility of both the defender and Mr. Watson on the matter was strengthened by the fact that, in the context of the complaint made by the pursuers to the police about the damage, the police constable made specific reference to the damage to an oil tank on the defender's property. This information could only have come from the defender and Mr. Watson. I find no reason to doubt their credibility on the matters on which they gave evidence. I reject the suggestion that the defender and Mr. Watson colluded to tell a false story in order to conceal their responsibility for the damage. I therefore find no proof of any breach of interdict on the part of the defender in regard to this matter.
[117] The third matter complained of in the Minute relates to an allegation that Mr. Watson had created a mud bank along the bottom of the wall constructed by him, "thus extending the wall even further into the Mill Lade and that in order to do so Mr. Watson must have entered upon the Mill Lade and carried out that work from within the Mill Lade". The substance of this complaint is derived from what can be seen in two photographs nos. 21/35/22 and 23 . These, it is agreed, were taken in December 1997. The evidence for the pursuers was given by Mrs. Summers. She made reference to a mud embankment which began to be piled up and made more solid . She spoke to seeing footsteps in the mill lade and wet handprints on the wall. No specific time scale was given for this. She said that a mason working for her at the time had pointed out the marks. In cross-examination she amplified this by saying that this tradesman had pointed out bits of the wall where concrete had been packed in to fill up holes in the wall and that the tradesman had expressed the opinion that work was being done to repair the wall. She suggested that the mud had been placed in position to support the wall. In chief Mr. Watson accepted that during the course of the work of erecting the wall and before it was stopped, he had piled material against the base of the new wall. He referred in particular to photographs nos. 21/35/24 and 25 which were taken in the autumn of 1996 and in June 1997 respectively as being the work done by him. I understood him in cross-examination to indicate that what was shown in these photographs represented the work that he had done. The only other evidence given on the matter came from the defender. She had a recollection of Mr. Watson putting some mud along the bottom of the wall to put in plants but was not sure when this was. Mr. Watson was adamant that he had not carried out such work after the interim interdict was pronounced. The presence of mud against the base of the wall, however, is apparent not only in plates taken by Professor Fleming on 11 July 1997 but also in a photograph no. 21/35/16 which was taken in April 1997. These photographs would serve to support Mr. Watson's evidence.
[118] In this matter I accept the evidence of Mr. Watson. Mrs. Summers was unable to place any date upon the sightings to which she spoke. Moreover, no evidence was led to indicate when the tradesman had been working at the Old Mill. None of the witnesses who spoke to the state of the wall, made any suggestion that there were signs that work of repair had been carried out in the manner suggested by the tradesman, let alone that any such work had been carried out after June 1997. In these circumstances I find no evidence to support the allegation of breach of interdict by way of trespass on the pursuers' property in the mill lade after 19 June 1997. I should add that I reject the suggestion for the pursuers that by piling mud against the face of the wall, Mr. Watson was creating an addition to the wall such as was prohibited by the interim interdict.
[119] The final matter which is complained of in the Minute relates to an incident at the end of June 1997. It relates to fence posts which Mr. Watson put up in a position which is shown in the photograph, no. 21/35/25, taken for the pursuers at that time. I have no hesitation in holding that the fence posts were placed in the bed of the mill lade. Mr. Watson admitted that he had been party to placing them in position. All the evidence is that the point at which they were placed, did not lie ex adverso the defender's property and further that the posts were put up at the instigation of the owners of the Farmhouse. These posts were removed after correspondence which involved letters between the pursuers' solicitors and the defender's solicitors dated 30 June 1997, nos. 21/65 and 66. In that correspondence it was not denied that Mr. Watson had erected the fence but it was specifically denied that the work was carried out on behalf of the defender. The defender, in her evidence, stated that she had not authorised Mr. Watson to carry out the work on her behalf. I accept her evidence. Accordingly, I find no proof of this allegation of breach of interdict.
[120] In the whole circumstances, I shall dismiss the Minute.