Scottish Court of Session Decisions

The North British Railway Company, under powers conferred upon them by their Galashiels and Peebles Railway Act of 1861, acquired a piece of land from Mr Robert Symington Grieve, for the purpose of building a bridge over the river Tweed. The land was conveyed to them in a disposition executed by Grieve, dated 11th July 1864, and is therein described as “All and whole these seven hundred and twelve decimals or one-thousandth part of an acre imperial measure or thereby, being the portions of ground taken and used by the said North British Railway Company from the lands belonging to me hereinafter described, as the said portions of ground are delineated and coloured red on a plan thereof signed by me as relative hereto; and which portions of ground lie in the parish of Peebles, and form part of all and whole these 4 acres of land of the Bridgelands now called Walkershaugh, lying on the north side of the river Tweed, near the burgh and within the sheriffdom of Peebles.” The land consisted of a strip about 550 feet long by 50 wide.

On 11th October 1864 Mr Grieve disponed the remainder of the 4 acres contained in Walkershaugh to Mr Archibald Marshall. The disposition, after describing the land conveyed in the same terms as in the disposition to the North British Railway Company, proceeded—“but excepting and reserving from the subjects before disponed those parts and portions thereof sold and disponed by me to the North British Railway Company for their line of railway from Peebles to Innerleithen, all as specified and described in the disposition thereof by me in their favour, dated the 11th day of July 1864.”

After Mr Marshall's death his trustees, in 1894, sold to Mr Andrew Hutton, printer, Edinburgh, part of the lands conveyed to Mr Marshall by the disposition of 11th October 1864, adjoining those previously conveyed to the North British Railway Company. The disposition to Mr Hutton described the subjects conveyed as “that piece of ground lying to the West of the North British Railway extending to 651/1000 of an acre.” Mr Hutton proceeded to build a house on this land, and while it was in the course of construction the North British Railway Company intimated to him that he was encroaching upon land included in the conveyance to the company, and expressly excepted from his authors' titles. Accordingly on 2nd August 1895 the company raised an action against him, in which they craved the Court to ordain the defender to remove the building so far as erected upon their lands. It was proved that the area in dispute was delineated on the plan as part of the land conveyed to the company, that it was within the alignment of the company's fences, that it had not been fenced off by the company, and that for 30 years it had been used by the defender's authors as part of a garden surrounded by a wall. The defender pleaded that he had acquired a prescriptive title.

On 5th December the Lord Ordinary ( Kyllachy) granted decree in terms of the conclusion of the summons, and ordained the defender to implement the decree before Whitsunday 1896.

Page: 358↓

Opinion.—“In this case the first point to be decided is, whether the defender has acquired by prescription a right to the ground in question. He and his authors have had de facto possession for more than thirty years; that is to say, it has been occupied by their tenants along with the adjacent ground. But the pursuers dispute that the possession has been of the requisite character, and they maintain further that the title of the defender's author excluded the ground in controversy, being in fact a bounding title, and that therefore prescription cannot apply.

“I think that the proof sufficiently instructs the possession on which the defender founds, and if it had followed upon a title to which it could lawfully be ascribed, I see nothing in its character to deprive it of effect. But I am of opinion that as regards the matter of title the pursuers are right. The defender's title is deduced from a disposition by Robert Symington Grieve in favour of Archibald Marshall, dated 11th October 1864, and by that disposition there is expressly excepted from the conveyance the ground conveyed by Grieve to the Railway Company by disposition dated 11th July 1864. Now, turning to that last disposition, it is not, I think, doubtful that it includes a conveyance of the ground in dispute. That ground is required to meet the measurement of the area disponed. The disposition is with reference to an annexed plan, which shows the ground in question as within the conveyance. And it does not appear to me that because the disposition is of ground ‘taken and used’ by the Railway Company, that expression can reasonably be held to limit the disposition to such ground as might de facto be fenced off from the adjacent ground by a railway fence. That being so, I am compelled to hold that the area in question is within the pursuers' title, and is excluded from that of the defender, and that the defender has therefore no title upon which he can plead prescription.”

Against this judgment the defender reclaimed.

Argued for reclaimer—The exception in the defender's title only applied to the land actually used by the Railway Company, and not to that possessed by the defender and his authors. This appeared from the terms of the exception and of the disposition to the company in which the land is described as “taken and used by them.” That description would not apply to the piece of land in question which they had not even fenced as they were bound to do under section 60 of the Railway Clauses Consolidation Act 1845 (8 and 9 Vict. cap. 33). Accordingly, the defender's title was not a bounding title excluding prescription. The title was ambiguous, and in construing it the defender's possession ought to be given effect to— Auld v. Hay, March 5,1880, 7 R. 663. The case of Reid, &c. v. M'Coll, October 25, 1879, 7 R. 84, was inconsistent with the above case and must be held to have been overruled by it. Even if the defender had gone to the pursuers' title he would have found nothing to help him, there being no plan on record. The case of a small piece of ground like this was precisely the kind of case which the principle of prescriptive possession was intended to meet.

Argued for respondents—The pursuers' title was most unequivocally a bounding one. The typical case of such a title was one where march stones were referred to as defining the boundaries. In such a case it was necessary to go outside the title itself. In modern conveyancing it was usual to refer to a plan as was done here, and that was held to constitute a bounding title just as much as a reference to march stones— North British Railway Company v. Magistrates of Hawick, December 19, 1862, 1 Macph. 200. The defender's title gave him a part of the property, less that disponed to the pursuers; accordingly he had an unequivocal reference to an unambiguous title, so his was also bounding. The cases of Reid and Auld were not inconsistent, the circumstances in the two being different. Reid was directly in point in the present case, while in Auld the title founded on might be construed to include the whole lands afterwards possessed, and it was not disputed that prescription might apply in such cases.

At advising—