Scottish Court of Session Decisions

This was an action in which the pursuer concluded for declarator “that a piece of ground or unbuilt area, consisting of 51 1 2 superficial yards or thereby, bounded on the north by the division wall between said piece of ground and the property known as Bennet's Feu; on the east and south by the tenement of houses belonging to the defender, erected upon the portion of area which was sold and disponed by David Sutherland, builder in Edinburgh, to Robert Dickson, plumber there, as aforesaid; and on the west by a straight line extending from the west gable of the defender's said tenement northwards to the division wall aforesaid, and along which line the defender has recently erected a wooden rail or pailing, and which piece of ground or unbuilt area, bounded as aforesaid, has been taken possession of by the defender, is part and portion of, and comprehended

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within, the bounds and marches of the said area or plot of ground belonging heritably to the pursuer, and therefore that the same pertains heritably in property to the pursuer in virtue of his rights and titles.”

The defender pleaded res judicata, in respect of the final judgment in the process of suspension and interdict, referred to in the following statements made by him:—1. On 16th April 1863 the pursuer presented to the Lords of Council and Session a note of suspension and interdict against the defender, in which he prayed their Lordships “to interdict, prohibit, and discharge the said respondent taking possession of, or using any part of the complainer's (pursuer's) ground at the back of his large double tenement at the south end of Greenside Street, Edinburgh, and forming Nos. 1 to 5 inclusive of that street, and lying to the west of the middle of the mutual gable forming the western boundary of the respondent's (defender's) property, laying down stones or effects thereon, or erecting any building upon the same, or drawing carts or carriages, or going personally by or through the complainer's (pursuer's) gates at the west side of his background; and also not to cover in the site of the respondent's (defender's) own background required by the complainer for erecting an oven thereon.” 2. The defender lodged answers to the note of suspension and interdict, and the note having been passed, and the case having thereafter come to depend before Lord Jerviswoode, Ordinary, a record was made up and closed on revised reasons of suspension and revised answers. A debate took place, and parties having been at issue on the facts stated in the record, the Lord Ordinary, on 9th March 1864, pronounced an interlocutor appointing, inter alia, the following question to be tried before himself without a jury—viz., “what is the eastern boundary of the property of the suspender?” Both parties acquiesced in this interlocutor, and a trial without a jury having thereafter taken place, and proof having been led, the Lord Ordinary, by interlocutor, dated 22d June 1864, found “that the eastern boundary of the property of the suspender, as possessed by him and his predecessors, extends to the existing western gable of the respondent's tenement in Greenside Place on the east, and northward in a straight line in continuation of the western gable until the said line meets the property named in the titles and record as Bennet's Feu;” and on 13th July 1864 the Lord Ordinary pronounced an interlocutor suspending the proceedings complained of, and interdicting the respondent (defender) from taking possession of or using any part of the ground at the back of the suspender's (pursuer's) large double tenement at the south end of Greenside Street, Edinburgh, and forming Nos. 1 to 5 inclusive of that street, in so far as the said ground lies to the westward of the existing gable of the respondent's (defender's) tenement, and of a line running northward in a straight line in continuation of the said western gable, until the said line meets the property named in the titles as Bennet's Feu, by laying down stones or other effects thereon, drawing carts or other carriages, or going personally by or through the respondent's (pursuer's) gates, and quoad ultra refused the interdict as craved. These interlocutors were acquiesced in by the parties, and the same are now final. 3. The object of the question appointed to be tried by the Lord Ordinary in the said action was to ascertain the eastern boundary of the pursuer's property. The eastern boundary was therein declared to extend to the western gable of the defender's tenement on the east, and northwards in a straight line in continuation of the western gable, until the said line meets the property named in the titles as Bennet's Feu. The piece of ground or unbuilt area claimed by the pursuer in the present action is on the east of and beyond the pursuer's eastern boundary, as found by the Lord Ordinary, and consequently formed no part of his property. The object of the present action is therefore to revive the question which was tried and determined against the pursuer in the suspension and interdict process.

The Lord Ordinary (Ormidale) repelled the plea of res judicata, and in his note he observed:—“The present is an action of declarator of property, while the former was merely a possessory action—a suspension and interdict. Independently of that very material distinction, the present action is more comprehensive in its conclusions than the former suspension and interdict was in its prayer. The summons in the present action contains a specific and express conclusion to the effect that the disputed piece of vacant ground, situated at the north-east corner of his own, and at the north-west corner of the defender's admitted property, belongs to the pursuer, and not to the defender. But in regard to that piece of vacant ground, it appears to have been assumed or admitted by the pursuer in the former process that it belonged to the defender, and all the pursuer then asked was an interdict against the defender's covering in the site of it, as it was required by the pursuer for erecting an oven. Clear it is therefore, that there neither was, nor indeed could have been, any dispute in the former process, as to the party to whom the piece of ground now in dispute belonged; for, as now explained, and as the record in the former process shows, it was then assumed, or rather admitted, to belong to the defender, and all that was asked by the pursuer was, that the site of it should not be covered in, to the prejudice of his right of oven therein. It turned out, however, in the course of the proceedings in the former process, that the pursuer's right of oven related to another part of the defender's property altogether, being westward from the piece of ground in dispute; and the pursuer now says that it was his mistake regarding this matter, which led to the admission he then made, to the effect that the piece of ground in dispute was not his, but the property of the defender. Be that as it may, the Lord Ordinary cannot hold that an admission made in the course of the proceedings in the former process, is sufficient to support the plea of res judicata as stated in the present, the medium concludendi, as well as the object or conclusion of the two actions, being essentially different. But then it was argued for the defender, that as the Lord Ordinary in the former action had, with a view to the determination of the question of possession, which alone was then raised, found that the eastern boundary of the pursuer's property was such as necessarily to exclude the piece of ground now in dispute, the question raised in the present action must be held to have been formerly tried and settled, and consequently that the plea of res judicata is well founded. It appears to be true that the question of boundary of the pursuer's property was incidentally tried and answered in the former process, but still the Lord Ordinary cannot hold that circumstance to be sufficient to support the defence of res judicata taken to the present action, seeing that in no proper sense did the question of property now raised for determination form the ground of action in the former process,

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and that it was not necessary that it should be so for the solution of the only question which it was the object of the former process to get settled.”

The defender reclaimed.