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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Otto and Others v. Weir [1871] ScotLR 8_411 (7 March 1871) URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0411.html Cite as: [1871] ScotLR 8_411, [1871] SLR 8_411 |
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Page: 411↓
A verbal
Page: 412↓
arbitration as to the line of march may be proved prout de jure.
This was an action of declarator as to the marches of two conterminous properties in the burgh of Sanqhar. The pursuers alleged that, in order to settle disputes, a verbal reference was made in August 1861, between Mr Macqueen, writer, Sanquhar, acting, or professing to act, for the pursuers, and the defender Weir, to two inhabitants of Sanquhar named William Russell and Robert Campbell, to lay down the exact boundary line, with the view merely to regulate the possession of the tenants. These referees met the parties on the ground, and marked off the line of fence between the respective back-yards. This line corresponds with that described in the conclusion of the summons.
After a proof, the Lord Ordinary ( Gifford) gave decree, and added a note to his interlocutor, which contained the following passages:—“It was pleaded by the defender that the boundary being fixed under a verbal arbitration in 1861, followed by the erection of a wooden paling and a certain acquiescence, the present action is excluded. This defence required evidence, and proof thereof was included in the general proof allowed to the parties. On considering the proof, the Lord Ordinary has no hesitation in repelling the plea. His grounds shortly are—(1) A verbal reference regarding heritage, or the boundaries of heritage, and a verbal award thereon, are not binding on either party. (2) The authority to refer is not proved. The reference, such as it was, was gone into by the pursuers' agent, who stated that he did not tell any of his clients thereof till long after. (3) The same witness seems to prove that the reference was merely to fix a temporary fence, not the ultimate right of property. (4) The erection of the paling, which merely cost 24s., cannot be founded on as rei interventus establishing an heritable right. (5) There was no acquiescence; for as soon as the position of the paling came to the knowledge of the pursuers and their agent, they objected, and disputes ensued. (6) It is a matter of controversy whether the paling was really erected on the line fixed by the arbiters. There is evidence to show that the arbiters intended to fix the boundary as in a straight line with the west wall of Janet Currie's house—that is, the line contended for by the pursuers. “There is no alternative, therefore, but to determine the real boundary according to the evidence. The title-deeds of the respective parties do not fix the boundary line. Each property is described as bounded by that of the other or neighbouring proprietor, leaving the marches to be fixed by immemorial possession. Now, upon the whole evidence, and taking into view the position and circumstances of the respective properties, the Lord Ordinary is of opinion that the line contended for by the pursuers is, as nearly as can be ascertained, the true boundary line between the properties of the pursuers and defender respectively.”
The defender reclaimed.
Nevay for him.
Pattison for the respondents.
At advising—
The
The point in which I differ from the Lord Ordinary is, that he finds the verbal arbitration invalid. This arbitration was, I think, the only sensible thing done by the parties in the case. Lord Cowan has put into my hand a passage from Mr Montgomery Bell's book on Arbitration, p. 53, in which he says—“Where parties have had a dispute respecting the marches of their adjoining lands, and have submitted the dispute to arbitration, parole proof has been repeatedly allowed, both of the submission and also of the award, the latter having been made in a practical and patent form, by the arbiters causing march stones to be set at their own sight in their determinate places in the boundary line. Gilmour states the doctrine of his day in these terms—‘Differences about marches may be submitted and determined verbally; both submission and sentence may be proved prout de jure.’” That being, as I think, the satisfactory and sound principle, I cannot concur with the Lord Ordinary in thinking the arbitration is not binding.
It is said that Mr Macqueen had no authority to bind his clients. There is a strong presumption that he had authority. At all events, the parties paid one-half of the expense of the fence which was put up, and they paid Mr Macqueen's account, which contained charges with reference to the arbitration. I do not think they could repudiate this after seven years.
But it is said that the fence was not put up in accordance with the findings of the arbiters. I do not think that anything can bar the pursuers proving that. And I think that it has been proved.
The other judges concurred, and the Court adhered.
Solicitors: Agent for Pursuers— James Somerville, S.S.C.
Agent for Defender— Robert Finlay, S.S.C.
