Cooper's Trustees v Stark's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 14 July 1898 |
| Docket Number | No. 185. |
| Date | 14 July 1898 |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Adam, Lord M'Laren, Lord Kinnear, Lord Trayner, Lord Moncreiff.
Property—Title—Bounding Title—Parts and Pertinents—Prescription.—
The proprietor of a house in a burgh, consisting of three square storeys with cellars below, possessed along with it for the prescriptive period a saloon built on ground behind the house. On his right to the ground being challenged he founded on his prescriptive possession of the subjects upon his title, which contained this description,—‘All and Whole that lodging, being the eastmost of the middle flat of that stone tenement of land covered with slate in Brownfield, lately built by…consisting the said tenement of cellars in the sunk storey and three square storeys, which lodging consists of a kitchen and three rooms together with two cellars in the sunk storey, which cellars are situated on the south-east corner of that storey, and which cellars are of the following dimensions—namely. … with free ish and entry to the said lodging and pertinents by’ &c., ‘together with the whole parts, pertinents, and privileges of the said lodging. Item’ [Here followed similar descriptions of each of the other five half flats], ‘which tenement containing the subjects above described fronts the public street from Glasgow to Anderston, and is built upon a part of All and Whole…together with the whole parts, pendicles, privileges, and pertinents of the said several subjects.’
Held that the title of the owner of the house had been explained by prescriptive possession as including the saloon, and the solum thereof as a part and pertinent of the house—diss. Lord Trayner, on the ground that the respective titles to the several half flats defined the boundaries thereof, and that the owner could not extend his right by possession beyond them.
In 1897 the marriage-contract trustees of the Reverend Joseph Jeremiah Cooper, and Mrs Margaret Neilson or Cooper, were proprietors of a piece of ground on the south side of Argyle Street, Glasgow. The ground was described in their original title and disposition, granted in 1798 by David Reid in favour of their author Robert Anderson, as consisting of 8051/2 square yards, ‘but excepting here-from that large stone tenement fronting the said road leading from Glasgow to Anderston (now Argyle Street) situated on the said two lots and sold by the said David Reid to various purchasers.’
In 1897 Mr and Mrs Cooper's trustees raised an action in the Sheriff Court at Glasgow against the testamentary trustees of the late James Stark, proprietors of the stone tenement excepted from the pursuers' title in which they prayed the Sheriff to declare that the defenders had no right or title to any portion of the 8051/2 square yards, with the exception of the said stone tenement, and to ordain the defenders to remove from a portion of the said piece of ground situated to the south of the said stone tenement, upon which they or their predecessors had erected a saloon, and to remove the said saloon, and for interdict against the defenders erecting any building except on the solum of the stone tenement.
The pursuers pleaded that the ground was their property.
The defenders pleaded;—(3) The ground in question being the property of the defenders, held under a valid and sufficient title, the defenders are entitled to absolvitor, with expenses. (4) The defenders' right and title to the ground in question has been established by prescriptive possession.
The defenders' title stood in this position;—The stone tenement built by David Reid consisted of three square storeys with cellars below; it had been sold by him in half flats to various purchasers. These several flats had been acquired by the defenders' author, Mr Stark, in 1855, and he became vested in the several ‘lodgings,’ cellars, &c., under an instrument of sasine, recorded 27th November 1855. This instrument was not produced, but the description of the subjects in it was admitted to be in the same terms as in a notarial instrument in the defenders' favour, recorded 19th March 1890, following upon the truster's sasine, and his settlement. The description in the notarial instrument was as follows:—‘All and Whole that lodging being the eastmost of the middle flat of that stone tenement of land covered with slate in Brownfield lately built by David Reid, wright in Glasgow, consisting the said tenement of cellars in the sunk storey and three square storeys, which lodging consists of a kitchen and three rooms, together with two cellars in the sunk storey, which cellars are situated on the south-east corner of that storey, and which cellars are of the following dimensions, namely, eight feet long by seven and one-half feet wide, with free ish and entry to the said lodging and pertinents by the common staircase of the tenement, and from the street called Brown Street by a passage or entry leading into the said staircase together with the whole parts, pertinents, and privileges, of the said lodging; Item, All and Whole [Here followed descriptions in the same terms, mutatis mutandis, of each of the other five half flats] which tenement containing the subjects above described fronts the public street from Glasgow to Anderston and is built upon a part of All and Whole these lots or pieces of ground number thirty-one and thirty-two laid off for building of that park. … together with the whole parts, pertinents, privileges, and pertinents of the said several subjects, and always with and under the whole burdens, conditions, provisions, restrictions, reservations, and obligations specified, and at more length set forth in an instrument of sasine,’ &c.
The possession which followed on this title is set forth in the findings of the Sheriff-substitute (Balfour) of 27th November 1897, which were adopted by the Court of Session,—‘Finds that since at least the year 1840 the defenders have, by their tenants in the property at the corner of Argyle Street and Brown Street, occupied the ground at the back of that property and the erections thereon: Finds that the ground and erections were all enclosed by a high wall, and the erections consisted of a row of cellars, afterwards occupied as a store, and of an ashpit and washing-house and privy used in common by the tenants of the property: Finds that the area within which these erections were situated was first enclosed by an iron gate and afterwards by a wooden paling and gate, and the keys of the gates were kept by John M'Simon, who had the grocer's shop at the corner, and by his successor in the shop: Finds that in or about the year 1864* a saloon was erected on the back ground behind the shop of John Ferguson, one of the defenders' tenants, who occupied the saloon as a workshop: Finds that all the back ground and erections thereon have been occupied and used by the defenders' tenants without interruption on the part of the pursuers or any other person: Finds, therefore, that under the clause of “parts and pertinents” in their title, the defenders having been in the sole and uninterrupted possession of the back ground and erections for longer than the prescriptive period, must be held to be the proprietors thereof, and the pursuers are not entitled to interfere with them in their use and occupation of the ground; therefore assoilzies the defenders from the conclusions of the action.’
The pursuers appealed. After argument, the Second Division appointed the cause to be re-heard before seven Judges upon the plea in law for the pursuers, and the third and fourth pleas in law for the defenders.
At the argument it was admitted by the pursuers' counsel that since 1840 the defenders, by their tenants, had occupied the ground and erections thereon, as found by the Sheriff-substitute in the first finding in fact in the interlocutor under appeal.
The pursuers argued;—On a sound construction of the titles to the various lodgings, these were bounding titles, and excluded the back ground. The only disputed question of fact was as to whether the defenders' subjects, as altered, occupied the same site exactly as before. Evidence was probably necessary to ascertain and identify the subject. But evidence of possession was incompetent to establish that the defender had any right of property in ground which did not fall within the ambit of the title. The titles were not bounding titles in the sense that a description of all and whole a certain ‘flat of a’ certain ‘stone tenement of land covered by slate’ expressed the boundary by natural or other features. But they were bounding titles in the true sense of that expression, namely, that the subject was so limited and defined that it was impossible to possess beyond it without possessing something which was quite outside the title.1 The extent and limits of a particular house of four walls and a roof were perfectly clearly ascertained by that description of it. Indeed, the defenders were proprietors of several lodgings in the tenement only. They never acquired the solum. Description of boundaries was one example, but not the only example, of a title so definite as to exclude
the acquiring of land by prescription in excess of the limited subject conveyed.1 If a subject was so described as to be within certain limits expressly or by implication, that was enough to make a bounding charter. It was said that the clause applicable to each lodging, ‘with the whole parts, pertinents, and privileges of the said lodgings,’ was to be construed by evidence, and when so construed, shewed that the defenders had prescribed a right to back ground outside the house. But a grant of the lands of A with part and pertinent was not greater than a grant of the lands of A.2 The difference between possessing so as to explain a title and possessing in the face of the title still remained. As...
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