Magistrates of Ayr v Dobbie

JurisdictionScotland
Judgment Date15 July 1898
Date15 July 1898
Docket NumberNo. 188.
CourtCourt of Session
Court of Session
2d Division

Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.

No. 188.
Magistrates of Ayr
and
Dobbie.

PropertyBoundaryRoadStreetRoyal Burgh.

When a proprietor dispones two pieces of ground, one on each side of a road and opposite each other, and describes each as bounded by the road, the presumption is that he dispones the solum of the road, and that the boundary of each of the pieces of ground is the medium filum of the road. So held in a question between a feuar from a royal burgh and the magistrates of the burgh, who maintained that the solum of a road which had become a street in the burgh remained vested in them as part of the common good and territory of the burgh.

In 1896 James Dobbie was proprietor of a piece of ground in the burgh of Ayr occupied by him as a tanwork. This ground was bounded on the north by Mill Street. Since 1869 he and his predecessors in the tanwork had drawn water for the works from the River Ayr at a point 100 yards north of Mill Street. The pipe conveying this water, after passing through Mill Street, reached the river through ground which (till 1895) belonged to M'Derment, who had in 1869 granted a servitude for that purpose. In 1895 the burgh of Ayr acquired M'Derment's property.

In December 1896 the Provost, Magistrates, and Councillors of the royal burgh of Ayr, with consent of the Police Commissioners of the burgh, brought an action in the Sheriff Court at Ayr against Dobbie, praying the Court to find and declare that the pursuers, the Town-council of Ayr, were vested in and were the sole proprietors of the solum of that part of Mill Street lying immediately to the north of a piece of ground occupied by the defender as a tanwork, and that free of or unaffected by any right of servitude of aqueduct or pipe track by the defender as proprietor of the said piece of ground, or otherwise, in or through the solum of the said portion of street, or the roadway thereof, for the purpose of conveying water from the River Ayr to his tanwork, and to ordain the defender to remove the pipe above mentioned, in so far as it passed through the street.

The pursuers averred;(Cond. 1) The pursuers, the Provost, Magistrates, and Councillors of Ayr are the corporation, and represent the community of Ayr, which is a royal burgh. In said capacity they are vested in the common good and territory of said royal burgh. The pursuers, the Commissioners of Ayr, are the Local Authority of said burgh, and are vested in the streets and highways thereof. Mill Street is, and from time immemorial has been, a public street or highway in said burgh, and lies within the ancient royalty thereof. The solum of said street belongs to and is vested in the pursuers, the Provost, Magistrates, and Councillors of Ayr, as representing the community thereof. The pursuers' title is a transumpt by the Lords of Council of the charter granted by King William [the Lion] to the burgh of Ayr.

The defender set forth his immediate title to the tanwork in question, being a disposition in his favour (dated and recorded in 1879), in which the subjects were described as bounded on the north by the high road leading to the Mills of Ayr, and averred;(Stat. 10) The pursuers have no right or title to the solum of Mill Street, except that a right of highway may be vested in the consenting pursuers as commissioners foresaid, but that does not confer any right to the said solum, or any right or title to sue the present action. (Stat. 11) The said tannery belonging to the defender is a feudal property held of a subject superior, and is situated outwith the boundaries of the royal burgh of Ayr. The title to the solum of the highway or street opposite thereto is vested in the defender to the middle line thereof, and in the opposite proprietor to the extent of the other half, or otherwise, at the point in question, it is vested in the defender's immediate lawful superior. The defender also made a variety of averments to shew that the pursuers or their predecessors in office had acquiesced in the existence of the pipe in question.

The pursuers pleaded, inter alia;(1) The solum of Mill Street being the property of the pursuers, and the defender having no right of servitude therein, the pursuers are entitled to decree as concluded for, with expenses. (2) The said pipe having been laid through the pursuers' property without their consent, the defender should be ordained to remove it. (3) The defender or his authors having no servitude or other right or title entitling them to lay and maintain said pipe in said roadway, the defender should be ordained to remove the same.

The defender pleaded, inter alia;(3) The pursuers have no title to sue in respect the solum of the street in question is not vested in them. (4) The pipe in question having been laid under the street with the sanction and approval of the pursuers' predecessors in office and their officials, and they having homologated and acquiesced in the expenditure of large sums of money by the defender and his predecessors and authors in connection therewith, the pursuers are barred from insisting in the present action, and the defender should be assoilzied, with expenses.

The facts as appearing from the titles produced and a parole proof are sufficiently set forth in the Sheriff-substitute's note.

On 17th February 1898 the Sheriff-substitute (Orr Paterson) pronounced this interlocutor:Finds in fact that the pursuers have failed to prove that they are proprietors of the solum of that part of Mill Street in the burgh of Ayr, near the Smith Street end thereof, lying immediately to the north of that piece of ground occupied by the defender as a tanwork there: Finds in law that the pursuers, having failed to prove the ground upon which declarator of their title to the solum and removal of the defender's pipe is craved, the defender is entitled to absolvitor: Therefore assoilzies the defender from the conclusions of the action; finds him entitled to expenses,&c.*

The pursuers appealed, and argued;(1) The general rule of the law of Scotland was that when a grant of lands described the lands as bounded by something, that something was outside the grant. The only recognised exception to this rule was the case of lands described as bounded by a river; in such cases the boundary was presumably the medium filum of the river. The reason of this exception was that a river was not a constant subjectit might be almost dry at one time, and in flood at anotherso that it would be difficult to say what the precise boundary of the subject was, if the river was to be excluded. Hence a river came to be regarded as being, for this purpose, nothing more than so much water flowing over land, and the medium filum to be taken as the boundary. This ratio had no application to roads, and the general rule was that where a subject (at all events within burgh) was described as bounded by a road, the road was outside the grant.1 Country roads might be different, for, with respect to these, the road trustees had not in general a feudal title to the solum of the road, and, consequently, when a proprietor

gave off lands on each side of such a road, the lands being respectively described as bounded by the road, the presumption might be that he did not retain the solum of the road. It was to such cases that dicta in the Scots cases referred to by the defender1 were to be understood to refer. In the case of streets in a burgh there was no presumption that the magistrates, if the proprietors of the solum, would part with the property of the roadway. A burghal erection might no doubt be administrative merely; in the case of Ayr, however, the lands were conveyed in property by the Crown, and the grant included the solum of this road. If, then, the road belonged to the burgh at one time, it was for the defender to produce a title sufficient to exclude the magistrates' original title; but all he produced was a title which described his subjects as bounded by the road, and which, therefore, prima facie, excluded the road; and he had proved nothing to overcome this presumption. The road was probably of very ancient origin, as was natural in the case of a road leading to the mill of a burgh; it certainly existed in 1614, for it was referred to in the procuratory of resignation of that year. This was not such a case as the defender had suggested of the

having been feued out by the magistrates before the formation of the road; it was for the defender to prove such a case, and this he had failed to do. (2) The pursuers were not barred by acquiescence.1

Argued for the defender;Where two properties, situated one on each side of a road, were described as bounded by the road the presumption was that half the solum of the road ad medium filum belonged to each property.2 This was also the rule in England.3 The authorities cited on the other side4 decided nothing to the contrary, although there might be dicta in favour of the pursuers' contention. There was certainly no authority for the view that where a superior gave off two properties, one on each side of a road, and described each as bounded by the road, he retained the property of the solum of the road to himself. The presumption in reason was to the contrary, because he could not in the ordinary case have any intelligible motive in keeping the road. No doubt the road here was now a street in a burgh, and according to modern ideas the magistrates in laying out a street on property belonging to them would naturally

the property of the roadway and pavement. But there was no presumption that the solum of the streets in a burgh belonged to the Magistrates1in the Duke of Buccleuch v. Magistrates of EdinburghUNK2 it was assumed that the solum belonged to the Magistratesand of the origin and history of this road or street practically nothing had been proved. It might be that it was within the grant constituted by the charter of erection of the burgh, but it was certain that...

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