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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Strang v. Steuart [1866] UKHL 159 (13 February 1866)
URL: http://www.bailii.org/uk/cases/UKHL/1866/01SLR0159.html
Cite as: 1 ScotLR 159, [1866] UKHL 159
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SCOTTISH_SLR_House_of_Lords
Page: 159↓
House of Lords.
v.
Subject_Property — March Fence — Common Property — Proof.
Facts:
Held (aff. Court of Session) that a pursuer who alleged that there was a march fence betwixt his and his neighbour's lands consisting of a hedge and a ditch, which were therefore common property, had failed to prove his averments.
This is an appeal from an interlocutor of the Second Division of the Court of Session, pronounced in an action of declarator, in which the appellant was pursuer, and the respondent defender. The question at issue between the parties is, whether a march fence, in the legal sense of the term, exists between their respective farms of Briech and Briechdyke; and if so, whether it is their common property, and also whether it is constituted by a certain hedge and ditch, or by the hedge alone.
The farms of Briech and Briechdyke formed at one time a part of Sir Alexander Cunynghame's lands of Livingstone, in the county of Linlithgow, and were sold by him in 1791 to a Mr Wilkie. They had till then remained undivided; but during Mr Wilkie's proprietorship he caused a ditch to be dug, and upon the excavated earth thrown up by its side a thorn hedge to be planted, for the purpose of dividing the farms, and of protecting that of Briech from the surface water of Briechdyke, which stood upon a higher elevation. Whether, however, Mr Wilkie in so dividing the property intended that the hedge or the ditch, or a line drawn between the two, should form the boundary of each farm, is quite uncertain. Thereafter Mr Wilkie sold Briech to the Rev. Thomas Kennedy, in whose hands it continued till purchased by Mr Strang in 1844. Briechdyke he also shortly after sold to a Mr Smith, and Mr Steuart eventually acquired it in 1848. The title-deeds of the respective parties made no reference to the hedge or ditch, but simply describe the properties as bounded by each other—Briech by Briechdyke and Briechdyke by Briech. In this state of matters Mr Strang and Mr Steuart came to be at variance as to what constituted the march fence between their farms; the former contending that it consisted of both hedge and ditch, which were therefore common property; the latter, that it consisted of the hedge alone, and that he had an exclusive property in the ditch, which he might fill up or plough over at his pleasure. Prior to the statutes to be presently mentioned, it would appear that no obligation existed at common law to compel neighbouring heritors to concur in the erection or maintenance of march fences, and trespass was prevented simply by means of herding the cattle. There was, indeed, the brieve of perambulation, by which the bounds of estates might be fixed at the sight of the judge ordinary of the locality in which the controverted marches lay, with the assistance of a jury; and there was also the action of molestation, competent when a heritor's possession was injuriously interfered with, which was also to be prosecuted before the judge ordinary of the bounds and an inquest. Neither of those proceedings, however, were similar in their nature to those authorised by the statutes in the seventeenth century, which introduced for the first time, with a view to the encouragement of closing and planting, those regulations and consequent obligations upon heritors which have been attended with so much benefit to the agricultural improvement of Scotland. The first of these statutes (1661, cap. 41) declares that all enclosed lands shall be free from every manner of taxation for the space of nineteen years thereafter; that the heritor whose cattle shall do injury to the fences of a neighbouring heritor shall be liable to a penalty of £5; that conterminous proprietors shall be at an equal expense in building and planting a dyke to divide their inheritance; and recommends all lords, sheriffs, and bailies of royalties, stewards of stewarties, justices of the peace, bailies of burghs, and other judges whatsoever, to see its enactments carried into force. The next Act (1669, cap. 17) enacts that whenever a person intends to enclose his lands by building a dyke or ditch upon the march between his neighbour's land and his own, it shall be lawful for him to require the next sheriffs, bailies of royalties, stewards of stewartries, justices of the peace, or other judges ordinary, to visit the marches, to straighten them if uneven, and declares that the dyke or ditch formed thereon should be in all time to come the common march between the properties. The Act of 1685, cap. 39, ratifies and renews the two previous Acts, and increases the penalty for injuring fences to the sum of £10. In February 1860, Mr Strang presented a petition to the Sheriff of Linlithgowshire, setting forth that the farm of Briech was divided from that of Briechdyke by a thorn hedge and ditch, running parallel with and close to the hedge, which hedge and ditch formed together, and had constituted from time immemorial, or at least for a period of seven years, the march fence between the two properties, and that for some time past the said hedge and ditch had been much neglected, and allowed to fall into great disrepair, through the refusal of the respondent to join with the petitioner in the repairing and cleansing thereof. He therefore prayed that Mr Steuart might be ordained to join with him in all sueh operations as might be necessary for putting the hedge and ditch into a proper, serviceable, and fencible condition and state of repair, fit for the purposes of a march fence. To this petition the respondent put in defences, and pleaded, inter alia, that the process was incompetent—(1) In the Sheriff Court; (2) in the form of a summary petition; (3) in respect of the statute 10 and 11 Vict., c. 113; (4) because it was not founded on the Act of 1669, c. 17; (5) in so far as respects the petitioner's alleged right and claim to the servitude of water gang; and (6) because the action is of a declaratory nature.
In July 1860 the Sheriff-Substitute pronounced an interlocutor sustaining the prayer of the petition, with an exception as to the servitude of water-gang, and decerning for the operations and repairs prayed for at the mutual expense of the parties. Against this interlocutor appeals were presented by both parties to the Sheriff; but all further proceedings before him were suspended by the petitioner, on the 9th November 1860, raising an action of declarator in the Court of Session. The summons in the declarator concluded that it should be found and declared that a thorn hedge and ditch running close and parallel thereto, and in length co-extensive therewith, which divided the pursuer's land of Briech from that of Briechdyke, belonging to the defender, formed together the march fence between the properties, and was the common or mutual property of the pursuer and defender; that the pursuer and defender were bound to uphold and maintain the said hedge and ditch at their joint expense, and that the defender was not entitled to encroach upon or fill up the said ditch by his agricultural operations or otherwise. The pursuer averred that the march fence between his property and that of the defender had from time immemorial consisted of a thorn hedge and ditch running parallel with, close to, and coextensive with, the hedge; that the hedge and ditch formed in their original construction parts of the same operation or work, the former having been planted and having grown upon the earth excavated in forming the latter. Without the ditch the hedge could not have grown up at first, thriven afterwards, nor continued to live now; that the
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said march fence was the common or mutual property of the pursuer and defender, who were bound to uphold and maintain it at their joint expense; that the same had been in use to be maintained and upheld at the mutual expense of themselves and of their respective predecessors in the said lands; that the said hedge and ditch, though in a state of great disrepair, were capable of being thoroughly repaired, but that the defender, though requested to contribute thereto, had refused to do so; that the lands of Briechdyke were of higher elevation than those of Briech, and the ditch, besides forming an integral part of the march fence, was of great value to the pursuer, inasmuch as it received the surface water rising on and descending from the lands of the defender and other adjacent lands; that the said ditch, for the purpose of effectually conveying the surface water, was connected at five several places with open drains or water-courses running through the pursuer's lands, by which the water was carried from the ditch, partly to a rivulet on the opposite side of the pursuer's property, and partly to a stream flowing eastward therefrom; that the said ditch had become choked up by certain ploughing and other operations of the defender and his tenants; that the defender a few years ago tile-drained his fields contiguous to the said march fence, but that such drains were quite incapable of carrying off his surface water, and those drains being on a higher level than the ditch, increased the flow of water into it, while the pursuer's drains being on a lower level than the ditch, caused the water which ought to have been carried off by the ditch to ooze through, and find its way into the pursuer's drains; that the said march fence had always, at proper seasons in every year, been made fencible for cattle, and was capable of repair at a very moderate expense. The defender, on the other hand, averred that the hedge and ditch were made simply for the purpose of separating the uncultivated lands from those which Mr Wilkie wished to render arable; the fence was allowed to continue, but no march fence was ever constituted either by legal authority or by agreement of the parties; moreover, in order to save litigation, he (the defender) had offered to admit that the thorn hedge formed the march fence between the properties, each possessing up to the roots of the hedge; that the ditch was wholly upon his property, and that neither the pursuer nor his predecessors had ever claimed or exercised any right either of property or servitude over it; that the pursuer's lands being of lower elevation than the defender's, naturally received the surface waters from the lands of the defender, but that the water, instead of being allowed to stagnate in an open ditch, was speedily conveyed away below ground in a main drain, and from thence into the pursuer's lands at the same points as before; that he claimed the right to plough up to the roots of the hedge; and that the thorn hedge was nearly extinct and could not be renovated without a large outlay and until many years had elapsed. In July 1861 the Lord Ordinary (Kinloch) allowed the parties a proof of their averments on record, and a very voluminous proof was accordingly taken. The commission for taking the proof having been reported, his Lordship pronounced an interlocutor on the 12th November 1862, finding that the hedge and ditch, and not the hedge merely, constituted the march fence between the properties of the pursuer and defender. Against this judgment the defender presented a reclaiming note to the Second Division, when their Lordships were pleased to supersede consideration of the reclaiming note, and to remit to the Lord Ordinary to dispose of the whole conclusions of the summons. Thereafter parties were further heard before the Lord Ordinary, who, by interlocutor of the 3d December 1863, found that the defender had not sufficiently established his right to have another description of fence substituted for the hedge and ditch libelled, and found, declared, and decerned in terms of the conclusions of the summons, with expenses. The defender also reclaimed against this judgment, and at advising the Judges of the Second Division required the Sheriff Court process, which had not been conjoined with the declarator, to be laid before them, and it having been wakened, they, on the 31st March 1864, pronounced an interlocutor, which is not appealed from, remitting the process to the Sheriff, in order that the pursuer might proceed therein if so advised, and with instructions in that case to repel of new all the preliminary pleas stated to the competency of the jurisdiction of the Sheriff, and directing him to proceed to adjudicate upon the rights of the respective parties as accorded with law; saving and reserving all the defender's objections to the said application, so far as tending to establish or enforce a right of servitude in or over the ditch in question with reference to the water-gang. Their Lordships upon the same day also pronounced the interlocutor which is the subject of the present appeal, finding that the pursuer had failed to establish that the hedge and ditch libelled formed an existing march fence between the lands of the pursuer and defender, and were their common or mutual property, and therefore absolving the defender from the whole conclusions of the libel, reserving the right of the pursuer to proceed with his application to the Sheriff if he should be so advised, or to present such other application to the Sheriff as he might judge best.
Mr Bovill, on the part of the appellant, after apologising for coming before their Lordships upon so small a matter—a course which the obstinacy of the respondent had left them no alternative but to adopt—proceeded to review the evidence of the different witnesses examined under the commission. The hedge and ditch had been formed together at one and the same time. They were intended by Wilkie to form the march fence between the properties, and had been so regarded from their formation by every person acquainted with the farms. At the proper season in every year, too, the hedge had been placed in a proper fencible condition by one or other of the parties; and it was further proved that when the repairs required were more extensive than usual both parties had contributed to that expense. This showed such an adoption of the boundary as was sufficient of itself to constitute it a march fence by agreement of the parties. Then, with regard to the conveyance under which the appellant claimed, it seemed to be assumed that while it transferred the land it did not transfer the fence which bounded it; there was no doubt whatever that such a deed conveyed the property in a mutual fence, as it would also the half of a highway had the properties been so divided ( Lord v. The Commissioners of the City of Sydney, 12 Moore, P. C. C. 495).
Mr Bovill admitted that was so, but it was at the same time to be observed that they were in the hands of different occupiers.
Mr Bovill said it was originally made as a march fence between different occupiers, and referred to Berridge v. Ward ( 10 C. B. N. S. 400), to show that a conveyance of land was held to include a strip of ground between it and the highway. He submitted that it was to be assumed that this was originally a march fence, the property in the half of which Mr Wilkie must be taken to have granted. If that were so, then, as was laid down in Lockhart v. Sieveright (Morison's Dictionary, p. 400), and in Boyd's Judicial Proceedings, the respondent, though no party to the formation of the fence. was liable to pay half the expense of keeping it in repair, since if he took the benefit of it, it thereby became common to both.
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Mr Bovill said the appellant was nevertheless entitled to have a decree of declarator that it was a march fence. The learned counsel then commented on the pleas in law for the appellant (pursuer).
Mr Bovill said all the Judges agreed that it was sufficient to show a common interest. He read and commented upon their opinions at some length, and concluded by submitting that the interlocutor of the Court below was wrong.
Mr Coleridge, Q. C., then followed on the same side, and proceeded to say that it was of the greatest importance to the appellant that this hedge and ditch should be declared to be a march fence, even leaving out of the calculation the heavy expenses which had been incurred in this litigation.
Mr Coleridge thought he could do so.
Mr Coleridge said there was not, and for this reason, that a man always made a hedge or fence upon his own ground.
Mr Coleridge said he could not.
Mr Coleridge proceeded to review the evidence from which he considered it quite clear that even if the hedge and ditch had not been originally constructed as a march fence, the parties had made it so by adoption. He referred to the cases of Lockhart v. Sievewright, of Dudgeon v. Howden ( 17 Faculty Coll. 458), Barclay's Digest (p. 755), and Hunter's Landlord and Tenant (vol. 2, p. 210), to show that by adopting it both parties became liable to keep it in repair. The doctrine of contribution known in English law ought also to apply, in explanation of which he referred to Fitzherbert and to Kent's Commentaries. The Lord Justice-Clerk, too, was wrong in saying that the Act of 1661 was the first upon the subject of march fences. There was the statute of 1457, in James the Second's reign, one also in the 6th of James the Fourth, one in 1503, and another in the 4th of James the Fifth. The learned counsel concluded by saying that this was a proper case for a declarator.
Mr Coleridge said he would not then enlarge upon it, but merely refer to Bell's Law Dictionary to show that the Sheriff could only deal with possessory actions.
Mr Rolt, Q. C., on the part of the respondent, said it was disgraceful that for a matter of little more value than ten pounds the appellant should so harass his neighbour and waste the time of the public and of their Lordships. Were there many people in Scotland like Mr Strang, every landowner would become involved in a litigation for the sake of a line without breadth. The rule of law applicable in this country, and he presumed also in Scotland, as to whom a hedge and ditch forming a boundary belonged, was that they were both the property of the person on whose land the hedge was planted. There was nothing in the law of Scotland constituting a common property in hedges. The Sheriff had certainly jurisdiction to settle this dispute, and all the statutes referred to by Mr Coleridge to show that the Lord-Justice-Clerk was wrong in saying that that of 1661 was the first, had not the slightest reference to enclosing, but only to planting the ground. It would be found that the only question the appellant was entitled to raise was that of common property. Even had the Sheriff exercised his authority or had the parties agreed to adopt the hedge and ditch as a march fence, that would never have constituted them common property. It was necessary to substantiate the conclusions of the summons, and these conclusions were all based upon the first, that the hedge and ditch were common property. Moreover, they had been made by one man for his own convenience, and had never been repaired by the parties to an extent to show that they adopted them as a march fence. There was therefore no common property in them, and no obligation mutually to repair. Then the Sheriff had ample jurisdiction, and the appellant had no right whatever to go to the Court of Session unless he could support his right to have a decree of declarator. Supposing there had been no proceedings before the Sheriff at all, and that the appellant had brought his declarator, there could be no doubt that he must have been defeated had he failed to prove common property.
Mr Rolt said only in the sense of a boundary fence, and proceeded to comment upon the judgment of Lord Cowan.
Mr Rolt said entirely so, and concluded by submitting that as the appellant had utterly failed to support his conclusion of common property, which was essential to the relevancy and competency of a declaratory process, the interlocutor of the Court below ought to be affirmed and the appeal dismissed.
Mr Broun followed Mr Rolt on behalf of the respondent, and contended that the pursuer's allegation of common property was essential to the competency of a declarator.
The Lord Chancellor—He also alleges that the march fence consists both of hedge and ditch.
Mr Broun said that the first—namely, common property—was a preliminary objection. The Judicature Act (6 Geo. IV. cap. 128) enacted that the pleas stated on the record should he held as the sole ground of defence in point of law, and to them also the arguments must be confined. He referred to “Darling's Forms of Process” (vol. i. p. 210), where it was said that previous to that Act summonses were often drawn in a very loose manner, their deficiencies supplied by the condescendence, and cases often decided upon grounds not included in the summons. Now, however, the practice was much more strict.
Mr Broun—said no doubt, but the defender's pleas would be irrelevant unless read as depending on the first, which alleged common property. He referred to “Bell's Principles” (sec. 1086) to show that common property differed from common interest.
The Lord Chancellor—The language of the summons is that the hedge and ditch together form the march fence, which is common property. In his condescendence the pursuer also contends that they together form the march fence. The defender in answer says that to avoid litigation he is willing to admit that the hedge is the boundary. Now, what evidence is there as to the repair of the diteh?
Mr Broun said there was none at all; but he would refer to the proof if their Lordships desired it.
Mr Broun said that as their Lordships seemed satisfied upon that point he would not occupy their time longer.
A Member of the bar informed their Lordships
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The Lord Chancellor said this was the highest tribunal in the kingdom, and one or other of them ought to have been present. He immediately rose and moved the judgment of the House. He said—My Lords, with the interlocutor remitting the Sheriff Court process we have nothing to do. The only interlocutor appealed from is that pronounced in the action of declarator, whereby the appellant sought to have it found that a thorn hedge and ditch, which divide his lands from those of the respondent's, form together the march fence between the said lands, and is their common or mutual property. The question is, what is he bound to make out by the law of Scotland to support his allegation? The Sheriff has power to order counterminous proprietors, upon the petition of one of them, to erect a boundary between these lands, and to maintain that boundary at their mutual expense, when, as made under his authority, it is called a march fence. But by the law of Scotland, as it would be by that of every civilised country, if a person has divided his property into different fields by fences, and afterwards disposes of those fields to different persons, it is perfectly allowable for those parties to agree that the existing fences shall form march fences between their properties, and so take upon themselves the obligation of mutually keeping them in repair. Further, it may be that without express agreement a fence, by which adjoining properties are divided de facto, and which has from time immemorial been held recognised, and treated as if it had been originally erected under the statutes or under express agreement, may become a march fence, and then by implied contract the same obligations would attach. Now, both these farms were originally in the hands of one proprietor, who divided them by making a ditch, on the other side of which he threw up a mound, and planted thereon a thorn hedge. He afterwards, in 1802, sold the field nearest to the hedge to the apellant's author, and after retaining the other farm in his own hands for some time subsequent, he also sold it to the author of the respondent. This hedge and ditch have been allowed to remain ever since; but the evidence shows that the one has been for a very long time in a state of decay, and that the other has now become choked up, and also that the cattle of one proprietor, if not of both, have been in the habit of breaking through the hedge and trespassing upon the adjoining lands. It is, at all events, certain that the cattle both of the appellant and respondent have been in the habit of eating up to the roots of the hedge, and that the ditch has been altogether disregarded. Now, it was essential to the appellant's case that he should establish that this hedge and ditch, which had been erected neither under the sanction of the Sheriff nor by express agreement of the parties, had been converted into a march fence by the parties having recognised and treated it as such. Now, upon that point there is a total absence of evidence, whereas conclusive evidence would have been necessary to establish it. It is essential in any view of the case that the appellant should have substantiated that conclusion of the summons—namely, that both hedge and ditch, and not the hedge only, constituted the march fence between his property and that of the respondent, He has entirely failed to do so, and without troubling your Lordships further, I beg to move that the interlocutor of the Court below be affirmed, and the appeal dismissed.
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Interlocutor affirmed and appeal dismissed, with costs.
Counsel for Appellant— Mr Bovill, Q.C., and Mr Coleridge, Q.C. Agents— Messrs Hill, Reid, & Drummond, W.S.; and Messrs Grahames & Wardlaw, London.
Counsel for Respondent— Mr Rolt, Q. C., and Mr Archibald Broun. Agents— Mr Thomas Sprot, W.S., and Mr William Robertson, London.