Scottish Court of Session Decisions

An action was brought by Mrs Emma Mary Brown or Meacher, heiress of entail in possession of the lands and estate of Marlee and Balcairn, in the parish of Kinloch and county of Perth, pursuer, against Captain Philip Laurence Kington Blair-Oliphant of Ardblair, in the county of Perth, defender, in which the conclusions of the summons were as follows—“Therefore it ought and should be found and declared by decree of the Lords of our Council and Session that the pursuer has, under her titles, the sole and exclusive right to the Fingask Loch, in the county of Perth, including the solum thereof, and to the fishings thereof, together with the sole and exclusive right and privilege of using boats, nets, and rods, and fishing in and shooting from the said loch, and generally of exercising all rights of property in connection therewith, and that the defender has no right of property or servitude or other right whatever except the servitude of watering cattle or other bestial in the said loch or fishings or shootings, and no privilege of using boats or fishing in or shooting from the said loch in any manner of way; and separatim, that the pursuer and her predecessors and authors have for time immemorial, or for forty years, been in the exclusive enjoyment and possession, under their titles, of the said Fingask Loch, and the fishings and shootings thereof, including all the privileges connected therewith: And further, the defender ought and should be interdicted, prohibited, and discharged by decree foresaid from placing or using boats on the said loch, and from entering or trespassing upon the same, or passing on to or over the solum thereof, and from fishing in the said loch, either from the banks or from boats or by means of wading or in any other way, and from shooting from the said loch, and from in any way interfering with the pursuer's peaceable possession of the said loch and fishings and shootings in all time coming.” [The words in italics were added by amendment at the conclusion of the hearing on evidence.]

The pursuer pleaded—“(1) The pursuer having, in virtue of her titles, the exclusive right to the Fingask Loch, and to the fishings and shootings thereof, and the defender having challenged said right, decree of declarator should be granted as craved. (2) Separatim, the pursuer and her authors having for time immemorial, or at least for forty years, enjoyed the exclusive possession of the said loch and fishings and shootings, upon an express grant thereof in their titles, the pursuer is now exclusively in right of the said loch and fishings and shootings, and the defender having challenged said right, decree of declarator should be granted as craved.”

The following narrative is taken from Lord Mackenzie's opinion—“The question in this action is in regard to Fingask Loch, the size of which is stated to be about 23 acres. The estate of Marlee belonging to the pursuer, and the estate of Ardblair belonging to the defender, both abut upon it. The pursuer claims the sole and exclusive right to the loch under her title, and also under her title and the possession which has followed upon it. The defender claims a joint right to the loch along with the pursuer as the only other riparian proprietor. The earliest title with which the pursuer can connect herself is a Crown charter in 1764 which makes express mention of tree lacus. It is admitted that one of these lochs is identified as being Fingask Loch. The pursuer maintains that she has an express title to the loch. The earliest title which the defender can connect himself with is a Crown charter in 1674 of the lands of Ardblair with parts and pertinents. An argument was founded on the fact that this charter contains a conveyance of lands called Shadouhalfe with certain rights in the three lochs. Shadouhalfe however drops out of the progress and no point arises in this case regarding it. The title of the defender is thus a conveyance of land with parts and pertinents earlier in date than the title granted to the pursuer. The lands in question abut, and I do not think there is room for the argument that it has not been shown they abutted at the date of the grant.”

On 23rd November 1911 the Lord Ordinary ( Guthrie) issued an interlocutor finding, and declaring in terms of the declaratory conclusions of the summons, and granting interdict as craved.

Opinion.—“ On Merits.—I have already allowed the amendment proposed by the pursuer, and shall hear counsel on the question of conditions.

The subject in controversy, namely, the right of the defender to joint ownership of the Fingask Loch with the pursuer, while it seems, from the possibility of future feuing, and the advantage the defender's water-side feus would have for that purpose if they carried a right of boating, bathing, fishing and shooting on the lake, to be of some conceivable future importance to the defender, is of only nominal value to the pursuer. Her concession of the defender's servitude of watering deprives her right of property of its most important incidents, and her project for killing out the pike and perch, and stocking with trout, would not have been objected to by the defender. The pursuer's position seems to be that of the Captain in Hamlet—‘Truly to speak, and with no addition, we go to gain a little patch of ground, that hath in it no profit but the name.’ And before this case is ended it may turn out that Hamlet's reply will be also applicable—‘Twenty thousand ducats will not debate the question of this straw.’

Fingask Loch is bounded, as near as may be, to the extent of half by the pursuer's property of Marlee on the west

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side, and on the other half by the defender's property of Ardblair on the east. In these circumstances the presumption is that both pursuer and defender have a joint right of property in the loch— Cochrane v. Earl of Minto, 6 Pat. App. 139; Napier v. Scott, 7 Macph. (H.L.) 35; Stewart v. Robertson, 1 R. 334. The defender has never claimed more; the pursuer claims under her titles, and her titles with possession, an exclusive right.

The pursuer founds, as her earliest title, on a Crown charter dated 14th July 1541, in which, among the lands described in the dispositive clause, are the following—‘Easter Kinloch with the mill thereof, and with the three lochs and their fishings.’ I hold it sufficiently proved that one of these three lochs was the Fingask Loch now in question, the other two being the Marlee Loch and the Rae Loch. (The defender argues that because the pursuer does not claim exclusive possession of the Marlee Loch, that she cannot claim exclusive possession of Fingask Loch. This is a non sequitur.) The title granted in 1604, naming the lochs, although only a security writ, is legitimate evidence of this, and is confirmed by the universal understanding, and by the absence of any other lochs on the lands in question. The pursuer's previous title, in 1499, refers to lochs in the tenendas clause only, and does not mention any number. The subsequent titles all refer to three lochs, with the exception of a title in 1657, where the number is omitted. From 1700 onwards the three lochs are conveyed, not ‘ unacum,’ but as separate subjects, and they are described as lying within the parish of Kinloch. There is a gap in the pursuer's titles between 1700, when they were in the ownership of Gall, and 1757, when Farquharson of Invercauld conveyed the lands of Kinloch as proprietor. The Crown charter of 1764 is the first writ with which the pursuer connects herself without a break. The pursuer's father, Mr Brown, acquired the lands in 1844 from the Farquharsons of Invercauld, under the Act of Parliament of 1828.

An express title like the pursuer's, if granted subsequent to a Crown grant to another waterside proprietor of lands adjacent to the loch with parts and pertinents, can only prevail to prevent the proprietor under the earlier title having a joint right of property in the loch, by evidence of exclusive possession for the prescriptive period— Scott v. Napier, 7 Macph. (H.L.) 36; Stewart v. Robertson, 1 R. 334. In the ordinary case of parts and pertinents possession is necessary to show what the parts and pertinents cover, but in the case of lands bordering a loch, if these lands are held with a clause of parts and pertinents, a joint right of property in the loch will be presumed, and this presumption can only be overcome, in the case of a subsequent express grant, by proof of exclusive possession by the holder of that express grant.

The defender's earliest title is in 1423—a grant by a subject superior, confirmed by the Crown, which contains a clause of parts and pertinents connected with the lands of Muirton and Ardblair, one or other of which includes the defender's lands bordering on the loch of Fingask. The defender's earliest title is thus earlier than the pursuer's earliest title.

Neither the pursuer nor the defender can connect themselves by an unbroken progress with the earliest title of their lands, namely, the pursuer's of 1541 and the defender's of 1423. The defender's progress of titles is continuous after 1674.

Thus whether the earliest title of the defender's lands be taken, namely, the title in 1423, or the earliest with which he can connect himself without a break, namely, the title of 1674, in either case his title, with parts and pertinents, is earlier than the pursuer's express title, for her earliest title is in 1541, and the earliest title with which she can connect herself is in 1764.

The sole question is—Has the pursuer, who has an express but subsequent title to the loch, possessed so as to involve an exclusive right of proprietorship? or has the defender, who has in an earlier title a right to parts and pertinents, which may include a joint-right in the loch, not possessed sufficiently to prevent a claim of exclusive possession by the pursuer?

So stated, the onus is on the pursuer.

The evidence of general repute does not go far back, and is to some extent discounted by the defender's admission that the pursuer is entitled to the rights of a part proprietor. But so far as it goes, it may be said to be entirely in favour of the pursuer.

Had the question been that of the pursuer's rights to part proprietorship her claim would have been clear, from her title and the possession following on it. It is not so clear that she has ousted the defender from claiming that his title includes a right of part proprietorship in the loch.

The pursuer has possessed the loch in every possible way, and has done so continuously and from time immemorial. It is unnecessary to go into details on this point. If she has not had exclusive possession, it must be on account of possession by the defender. The use of the loch by the public of Blairgowrie for boating and fishing was not an assertion of any right, and it is accounted for by the valuelessness of the subject.

It therefore becomes necessary to consider what possession the defender has had of the loch and to determine its nature and extent. That question may be looked at in two ways First, what, if anything, did he do in assertion of his alleged right? Second, what, if anything, did the defender do inconsistent with his alleged right?

First, what, if anything, did the defender do in assertion of his alleged right of part proprietorship of Fingask Loch?

1. Watering animals.—That the cattle and other animals in the defender's fields adjoining the loch drank the water in the loch, without objection by the pursuer, is admitted. But this use involved no assertion of a right of property on the

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defender's part. Its effect as establishing a servitude in favour of the defender has been conceded by the pursuer, with the result probably that the pursuer will be debarred from fencing, polluting, or draining the loch. It is true that not only did the cattle water, but fences were run into the area of the loch to keep the cattle in their respective fields. But this was a mere innocuous accessory of a servitude, which, as such, I am not satisfied that the pursuer could have prevented.

2. Boating, fishing, and shooting.—There is no evidence that the Laird of Ardblair ever had a boat of his own on Fingask Loch down to 1903, when the defender took his Norwegian skiff there from the Rae Loch, at which date he had a sporting lease from the pursuer covering the whole loch. But he used boats belonging to other people, and, in particular, the boat of Menzies, pursuer's tenant. The effect of the evidence of boating, fishing, and shooting is discounted on both sides, when it is found that, owing apparently to the proximity of Blairgowrie and the valuelessness of the fishing and shooting, Fingask Loch was free to all.

3. Taking marl from the bed of the loch.—The defender tried to prove the taking of marl. In my opinion he has not done so. In view of the convenient situation of Fingask Loch and of the value of marl, and of the defender having taken it from adjoining places but never from Fingask, there is a strong presumption against his right of proprietorship in the loch,

4. Taking reeds and sand.—It is not proved that the reeds were taken in the loch. Sand has only been taken within the last twenty years, and only on two or three occasions, in insignificant quantities.

5. Preparation of plans showing part of the loch within his property.—The defender founds on plans prepared by Stobie and a copy in the Advocates' Library, and some evidence was led about the different versions of these plans. This point seems to me unimportant. Any proceeding by the defender which could constitute an interference with the pursuer's exclusive possession must have been one of which the pursuer knew or was bound to know— Place v. Breadalbane, 1 R. 1202; Reid v. Haldane's Trustees, 18 R. 744.

Second, what, if anything, did the defender do inconsistent with his alleged right?

1. Inserting a statement in his titles on and after 1721 that his estate is all within the parish of Blairgowrie, whereas the loch is entirely within the parish of Kinloch.—I do not found on this point. The proof is not clear that the Ordnance Survey map is right in taking the boundary of Blairgowrie parish outside the area of the loch— Gibson v. Bonnington Company, 7 Macph. 394. The two Statistical Accounts of 1796 and 1845 do not agree. Besides, the title of 1721 and subsequent charters by progress could not affect the defender's feudal estate if once duly constituted— Boyd, 11 Macph. 243, 246.

2. Failing to challenge the action of the pursuer's authors in applying to Parliament and obtaining the Act of 1828, and selling under the Act, on the basis that the whole loch belonged to Marlee.—The pursuer is entitled to make this point; but I do not attach much importance to it. The defender was not directly concerned with the Parliamentary application.

3. Accepting a lease from the pursuer on the footing that the pursuer was sole proprietor of the loch.—In 1904 the defender took a sporting lease from the pursuer, the terms of which and plan attached shows the whole loch as part of the pursuer's estate. This strongly suggests that the defender did not at the time maintain his present contention.

4. Framing estate plans on the footing that Fingask Loch excluded.—This involves a comparison between Nos. 168 and 183 of process, and depends on points which the evidence leaves obscure.

5. Allowing pursuer's authors to make a road on the east side of the loch.—The evidence about this road is too vague to be of any value. The point is not made on record.

6. Allowing pursuer to take marl from the eastern side of the loch.—This is not proved.

7. Granting lease on the footing that the defender had no interest in the loch.—See the lease of 1897 by the defender to Thomas Henry Smith. On the whole, with some reluctance, I hold that the pursuer has proved possession of all kinds in the loch for time immemorial, and has sufficiently shown that there was no possession of the loch by any other person, and, in particular, by the defender or his predecessors, to exclude her claim founded on exclusive possession.”

The defender reclaimed, and argued—The defender's title was prior to that of the pursuer. By his title he got the lands, with parts and pertinents, and this gave him a right to a share of the loch— Scott v. Napier, June 11, 1869, 7 Macph. (H.L.) 35, 6 S.L.R. 716; Stewart's Trustees v. Robertson, January 6, 1874, 1 R. 334, 11 S.L.R. 161. In other words the defender got the lands of Ardblair, parts of which were covered with water. This grant gave him an indefeasible right to a share of the loch, and consequently the subsequent grant of the whole loch was a non domino— Menzies v. Wentworth, June 18, 1901, 3 F. 941, 38 S.L.R. 672. “Part” and “pertinent” have sufficiently distinct meanings, and the right to the loch is a “part”— Mackenzie v. Bankes, June 27, 1878, 5 R. (H.L.) 192 (C. of S. 279), 15 S.L.R. 755 (C. of S. 173); Stair, ii, 3, 73. The lands could be identified by the fact that they abutted on the loch, which the pursuer admitted in his pleadings, and the share of the loch appertaining to those lands was settled by a series of decisions— Menzies v. Macdonald, March 10, 1854, 16 D. 827; Macdonell v. Caledonian Canal Commissioners, June 5, 1830, 8 S. 881; Erskine, ii, 6, 4; Bell's Principles 648 and 651; Duff Section 47 (2); Rankine's Law of Landownership (4th ed.), p. 195.

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The defender had therefore a good title to start with, and so threw the whole burden of proof on the pursuer. In any case the defender's title was made good by prescription. Prescription dates from the original grant, and as the defender had proved possession for more than forty years after his grant by 1714, i.e., 50 years before the pursuer's express grant, the latter was clearly a non domino— Lord Advocate v. M'Culloch, October 20, 1874, 2 R. 27, 12 S.L.R. 1. In regard to the pursuer's title the sound view was that it carried the lochs “so far as they appertain to the lands of Marlee.” This was consistent with the pursuer's possession both of this loch and of the two others and consistent with the defender's possession. To cut out the defender's title the pursuer must show an express grant followed by exclusive possession— Lord Advocate v. Wemyss, July 31, 1899. 2 F. (H.L.) 1, 36 S.L.R. 977; Baird v. Robertson, February 2, 1836, 14 S. 396; Dick v. Earl of Abercorn, 1769, M. 12, 813; Bell's Lectures on Conveyancing, p. 596. The pursuer's concession of the right of servitude at once negatived exclusive possession on his part. In regard to the bounding charter it was only in the event of the pursuer proving that the Blairgowrie march went round the loch that the question would arise, and this he had failed to do. In any event the defender had acquired by title and prescription a right which the subsequent introduction of these bounding words could not cut down. The evidence of plans could not be given much weight— Place v. Breadalbane, July 17, 1874, 1 R. 1202, 11 S.L.R. 704.

Argued for the pursuer—The pursuer was entitled upon her titles with her possession to exclusive right in the loch. She had an express grant of the lochs, and even if an express grant required to be fortified by possession to give a good title, such possession need not be exclusive but could be something short of the possession required to fortify a mere grant cum pertinentibus. It might not be necessary for the defender to prove exclusive possession to establish his right, for he had a prescription in his favour, but his right was not so high as to require exclusive possession to be proved against him. The grant to the pursuer, accompanied by possession, not necessarily exclusive, was sufficient to overcome the prescription in his favour. A grant cum pertinentibus followed by exclusive possession would have given the pursuer the whole loch, and an express grant must be stronger than a grant cum pertinentibus, and so could not require equal possession to support it. On the authorities the pursuer was bound to prove some degree of possession, but only explicative possession, not the possession necessary to establish an adverse right— Scott v. Napier (cit.), per the Lord Chancellor at p. 74, and Lord Chelmsford at pp. 81 and 83; Scot v. Lindsay, 1635, M. 12, 771; Menzies v. Macdonald, 1856, 2 Macq. 463, at p. 474; Earl of Fife's Trustees v. Cuming, January 16, 1830, 8 S. 326; Agnew v. Lord Advocate, January 21, 1873, 11 Macph. 309, 10 S.L.R. 229; Young v. North British Railway Company and Lord Advocate, August 1, 1887, 14 R. (H.L.) 53, 24 S.L.R. 763; Macdonald v. Farquharson, 1836, 15 S. 259. [ Lord Dundas referred to Auld v. Hay, March 5, 1880, 7 R. 663, 17 S.L.R. 465.] In any event the defender's own title excluded him from the loch, for it described his property as lying within the parish of Blairgowrie, and it was proved that the loch was outside the parish. It was true that this limitation was only introduced in the middle of the progress of titles, but where a limitation appeared in a progress it was valid although an earlier charter existed without the limitation— Gordon v. Grant, November 12, 1850, 13 D. 1. If the defender could legitimately go back to an earlier charter to get rid of this limitation it could only be to the original grant, and neither side could produce this— Lord, Advocate v. Wemyss (cit.) per Lord Watson, p. 10; Threipland v. Rutherford, May 30, 1848, 10 D. 1079; Boyd v. Bruce and Others, December 20, 1872, 11 Macph. 243, 10 S.L.R. 157. [ Lord Kinnear referred to Durie's Trustees v. Earl of Elgin, July 11, 1889, 16 R. 1004, 26 S.L.R. 664.] On the question of the admissibility of plans, &c., as evidence counsel referred to the Ordnance Survey Act (4 and 5 Vict. c. 30), sec. 17; Reid v. Haldane's Trustees, March 19, 1891, 18 R. 744, 28 S.L.R. 511; Gibson v. Bonnington Sugar Refining Company, January 20, 1869, 7 Macph. 394.

At advising—