Houstoun v Barr
| Jurisdiction | Scotland |
| Judgment Date | 10 November 1910 |
| Docket Number | No. 16. |
| Date | 10 November 1910 |
| Court | Court of Session |
Lord Dundas, Lord Justice-Clerk, Lord Ardwall, Lord Salvesen.
Property—Title to Heritage—Bounding Title—Public Road.
In a feu-charter granted in 1834 the subjects were described as consisting of ‘two steadings on the west side of Quarrelton Street in the plan of the town of Johnstone … bounded … by Quarrelton Street on the east parts.’ In 1834 Quarrelton Street was a public road.
In an action brought in 1910, which raised the question whether the grant of 1834 conveyed the ground up to the medium filum of the street or only up to its westmost edge, held that the general rule that the boundary of a subject does not form part of the subject applied, and that the grant accordingly only conveyed the ground up to the edge of the street; any legal presumption which there might be that the general rule does not apply where the boundary is a public road or street being overcome by the facts (1) that the measurements in the feu-charter were inconsistent with the boundary being the medium filum; (2) that the ground was described as ‘on the west side of’ the street; and (3) that it was proved that, in proceedings against a railway company in 1840, the original feuar had acted on the belief that the edge of the street formed the boundary of his property.
Reid, &c., v. M'CollSC, (1879) 7 R. 84, commented on.
Prescription—Long Positive Prescription—Possession—Possession equally referable to property title and to lease as tenant.
In an action between A, the owner of a feu, and B, his superior, who was also the owner of a neighbouring field, A claimed a strip of ground in front of certain cottages on his feu, which, inter alia, was used as an access to the field. He based his claim on the fact that he or his authors had possessed the strip for upwards of the prescriptive period on a title ex facie valid and irredeemable. During the whole of the period founded on, A or his authors had leased the field from B or B's authors.
Held that A had failed to prove the necessary possession, inasmuch as all the acts of possession founded on were at least as referable to the right of tenancy of the field as to that of ownership of the feu.
George Ludovic Houstoun of Johnstone, Renfrewshire, the superior, inter alia, of certain subjects known as Greenend Cottage in Johnstone, brought an action in the Sheriff Court at Paisley against John Barr, the proprietor of Greenend Cottage, in which he sought ‘to interdict the defender, his workmen, and all others employed by him or acting under his instructions or on his behalf, from erecting a dwarf wall or railing or any erection on the piece of ground lying between the front of Greenend Cottage, situate in or near Quarrelton Street, Johnstone, belonging to defender, and the garden or other ground in line therewith also belonging to him on the one hand, and a line in continuation of the parapet of the bridge ex adverso such property and at a distance of some 18 feet therefrom on the other hand.’ There were also conclusions for the removal of certain obstructions already erected.
The facts out of which the case arose were as follows:—
Ludovic Houstoun of Johnstone, who was the superior of all the lands in the immediate neighbourhood, in 1834 granted to James Marnock, labourer, Johnstone, a feu of ‘All and Whole that plot of ground or two steadings on the west side of Quarrelton Street in the plan of the town of Johnstone, being part of the ground called Hagg Wood, being 42 feet long each in front or thereby, and extending in whole to 40 falls and 16 ells of ground old Scotch measure, or 1 rood 10 poles and 23 yards imperial measure, bounded on the north, west, and south by the remainder of the said wood lands, and by Quarrelton Street on the east parts, all lying within the town of Johnstone, Abbey Parish of Paisley, and shire of Renfrew.’
The disponee was taken bound ‘within three years … to build two sufficient dwelling-houses on the said steadings to front to Quarrelton Street.’ These houses (Greenend Cottage) and a byre were thereafter built by Marnock with their fronts upon the line of the west boundary of Quarrelton Street as it existed in 1834.*
At the point where the cottages were built, and for a short distance on each side of them, the street or road (for it was a road rather than a street) was, in 1834, much wider than elsewhere, the extra width being due to the fact that the west boundary of the street made a bend westwards for that space, forming thereby a recess or bay, on the edge of which the cottages, &c., were erected.
About 1840 the Glasgow, Paisley, Kilmarnock, and Ayr Railway Company, under statutory powers, constructed a line of railway crossing Quarrelton Street at right angles, and built a bridge which carried the street over the railway line at a point almost immediately to the north of the cottages. The retaining wall or parapet of the bridge on the west, instead of following the line of the street into the recess in front of the cottages, was built parallel with the opposite wall or parapet and extended across a portion of the front of the recess, and consequently the recess (which was the subject of the present action of interdict) no longer continued to be used as part of Quarrelton Street. The line of the retaining wall on the west was considerably to the west of what had been the medium filum of the street as it existed in 1834.
From this cul-de-sac, formed in the recess between the cottages and the parapet, access by means of a gate was obtained to a field which formed part of Houstoun's property.
In 1840 Marnock claimed compensation from the railway company on the ground that his property had been injuriously affected, but he did not suggest that the railway company had taken any portion of his property.
In 1860 Marnock disponed the cottages, &c., to John Barr, the description of the subjects being in exactly the same terms as the description in the feu-charter of 1834.
From 1860 onwards the owner of the cottages, John Barr, or his tenants, had a lease from Houstoun of the field just mentioned, to which access was obtained from the cul-de-sac.
Barr or his tenants during the whole period exercised various acts of possession over the area in dispute, which are narrated in the findings in fact from the interlocutor of the Second Division, quoted infra, footnote, pp. 136-7.
In 1908 Barr proceeded to erect a barricade and obstruction on the area in question, and Houstoun thereupon brought the present action of interdict.
The pursuer pleaded;—(1) The erection of the said dwarf wall and railing by the defender as proposed, and separatim the concrete base for the said wall and railing already laid down by him, and separatim the said barricade or fence already erected by him, being an interference with the pursuer's said right of access, pursuer is entitled to interdict against the erection of the said dwarf wall and railing, and to an order for removal of the said concrete base and the said barricade or fence, all as craved, with expenses. (2) The ground upon which the said dwarf wall and railing are proposed to be erected by the defender, and on which the said concrete base and the said barricade or fence are already put by him, being vested in the pursuer in property, and the defender having no right therein except as a member of the public and for the purposes of access to the said Greenend Cottage and ground belonging to him, pursuer is entitled to interdict against the erection of the said dwarf wall and railing, and to an order for removal of the said concrete base and the said barricade or fence, all as craved. (3) The defender being about to erect on the public road a dwarf wall and railing, and having already laid down concrete base therefor, all as condescended on, pursuer as a member of the public using said road is entitled to have him interdicted from further interfering therewith, and to have him ordained to remove the said concrete base which forms an obstruction thereon. (4) In respect the erection of the said dwarf wall and railing as proposed would be, and the said concrete base and the said barricade or fence are, in contravention of the defender's title to the said Greenend Cottage and ground, the pursuer as his superior is entitled to interdict and restoration as craved.
The defender pleaded, inter alia;—(4) The ground in question being wholly within the boundaries of the defender's feu according to his title, and the proposed erections being a legal exercise of his rights as proprietor therein, he is entitled to absolvitor, with expenses. (5) The ground in question having been exclusively possessed by the defender and his authors as part and portion of the feu for upwards of sixty years without challenge, the pursuer is barred by prescription from now challenging defender's right and title, and the defender is entitled to absolvitor, with expenses.
A proof was allowed and led. The import of the evidence is summarised in the foregoing narrative, and is also specifically set forth in the findings in fact from the...
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