Scottish Court of Session Decisions

David Warren and Thomas Warren, the suspenders, were proprietors in fee and liferent respectively, of certain subjects in the burgh of Kirkwall, separated from the property of the respondent, Marwick, by a mutual wall about six feet high. On the property of Warrens was a row of cottages occupied by tenants fronting the common wall at the distance of a few yards. Marwick became desirous of having the wall heightened, and as the Warrens refused to concur with him, he presented a petition to the Dean of Guild, praying him to ordain the wall to be raised to the height of eight feet at least, at the joint expense of himself, and Thomas Warren, and also to prohibit Warren and his tenants from building peat-stacks or raising dunghills at or against the wall. No answers were given in to this petition; and the Dean of Guild having visited the subjects, pronounced an interlocutor in absence, finding that the wall ought to be raised two feet higher, and authorizing the petitioner to do so, but at his own expense, and discharging Warren and his tenants from laying any nuisances or building peat-stacks leaning on or adjoining the wall in question. Upon this, Thomas and David Warren presented a bill of suspension and interdict on the ground, inter alia, that the march-wall being common property, no alteration could be allowed to be made on it, merely to suit the purposes of one of the parties, and without the consent of the other, especially when such alteration would have the effect of obstructing the light from the other proprietors' cottages. ¹

Interim interdict was granted; and, answers having been given in, the Lord Ordinary passed the bill, and continued the interdict.