Shaw Stewart and Another v Macaulay
| Jurisdiction | Scotland |
| Judgment Date | 03 November 1864 |
| Date | 03 November 1864 |
| Docket Number | No. 5 |
| Court | Court of Session (Inner House - Second Division) |
Lord Jerviswoode. R.
Property—Boundary—Proof—Competency of Extraneous Evidence.—
IN 1826 the late Sir Michael Shaw Stewart feued a piece of ground to Mr Maitland Young, which was thus described in the fell-contract.—‘All and whole that piece of ground lying on the south side of the Low Gourock Road, of the following mensurations, viz., 177 feet in length along the front of the said road, the like number of feet in length at the back thereof along the front of Glen Street, 358 feet in breadth on the east side along the front of Johnstone Street, and 348 feet in breadth on the west side alongst the ground feued to John M'Naught, merchant in Greenock, amounting in measure the said piece of ground to 192 falls of ground or thereby, salvo justo calculo, computing each fall to contain 36 superficial yards, and bounded as follows, viz., by the Low Gourock Road on the north, by John-stone Street on the east, by Glen Street on the south, and by the ground feued to the said John M'Naught on the west, with the teinds parsonage and vicarage of the said piece of ground, and free ish and entry thereto from the said streets, as far as the said feu extends, lying in the old parish of Greenock, and shire of Renfrew.’
At the date of the feu-contract Glen Street did not extend farther west than the east boundary of the ground feued, but its extension was contemplated.
In May 1862 the present action was raised by Sir Michael Robert Shaw Stewart, the heir of the granter of the feu-contract, and by John Gray, clerk to the trustees under the Act 3 Vict., cap. 7, for the improvement of the town of Greenock, &c., for their behoof, against John and Thomas Macaulay, merchants in Greenock, singular successors of Mr Maitland Young in the feu-right, concluding for declarator, that the subjects feued to Mr Young, and now belonging to the defenders, extended to 192 falls of ground, &c., being the measurement specified in the feu-contract, and that beyond the extent of ground included within these measurements no right belonged to the defenders, ‘and that the pursuers are entitled to have the road or street, now called Eldon Street, to the north of the said feu, opened up to the full width of 60 feet in front of the said subjects, and to have Glen Street,∗ at the south end of the said subjects, also opened up when it shall be found necessary or expedient so to do:’ And that the defenders should be ordained ‘to flit and remove from the piece of ground at present occupied by them at the north end of the said subjects running along the whole front thereof, and which lies beyond the mensurations specified in the said feu-contract, and contains 216 square yards or thereby at the west end; and also from the piece of ground at present occupied by the defenders at the south end of the said subjects, running along the back thereof, next Glen Street, which also lies beyond the mensurations specified in the feu-contract, and contains 684 square yards or thereby; but reserving always to the defenders, in terms of the said feu-contract, free ish and entry to their feu from the said streets, so far as the said feu extends;’ and also concluding that the defenders should be ordained to flit and remove from a strip of ground occupied by them at the north end of the said subjects running along the whole front thereof.
The pursuer averred that Sir Michael Shaw Stewart, in granting the feu, contemplated that the Low Gourock...
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