Scottish Court of Session Decisions

Lord Justice-Clerk.—The facts to be considered in this case are (1) that the plot of ground which is divided into two feus, now belonging to the parties to this case respectively, was, according to the original feuing plan, rectangular, measuring 200 feet both front and back; (2) that when it came to be divided it was found that it was not rectangular, but measured 201 feet at the front and 199 feet at the back, so that it was not possible in dividing it up into two feus to draw any line of division which should give correctly rectangular plots; (3) that an arrangement was come to and assented to by the superior, that instead of erecting a boundary wall between the two feus, the line of division was to be marked off by a line of trees, planted at the joint expense of the feuars, and in a line staked off by mutual agreement; (4) that this line was by agreement made not exactly straight, it being a convenience to one of the feuars that at one point, to make the approach to his house more convenient, a slight curve should be made in the line fixed to bound the properties; (5) that the trees were planted accordingly and the feus possessed in accordance with the arrangement come to; (6) that when it was thought desirable to thin the trees, those to be removed were agreed upon by both feuars; (7) that when the complainer took his feu from Mr Beilby, in whose name the original feu-charter of the whole ground had been taken, he was informed of the arrangements above noted, and he and the then feuar of the other feu, Mr Shiells, acted in accordance with the agreement; (8) that Shiells sold to the respondent, but it is not proved that he told him of the arrangement.

These being the facts, the present dispute has arisen in consequence of the respondent proposing to fell some of the trees as being on his feu without the consent of the complainer, and declining to confer with him on the matter.

In considering what are the rights of parties I lay out of view altogether the fact that a light wire fence was erected by Mr Beilby on his own ground, as I do not see how that can affect the question at issue. It is not in any sense of the nature of a permanent erection, and was not intended as a designation of march boundaries, and was never treated as such.

It is to be noted that, in addition to the fact that the measurements are not in accordance with the description, the titles expressly modify each measurement given by the words “or thereby,” and therefore if the respondent takes his stand, as he does, upon the titles, he is faced by this expression, which, if it means anything at all, must mean that slight variations might be unavoidable, and would in the establishment of the two feus call for some adjustment on the division of the plot. Had he inquired, as I agree with the Lord Ordinary he was called on to do, he would have ascertained that adjustment had been made and the march settled by the planting of the trees. Any deviation there is from a straight line is of the slightest, and the words “or thereby” may reasonably be held to cover it. I am of opinion with the Lord Ordinary that, although the line of trees is not in a strict sense a fence, they are just as sufficient a mode of marking a boundary as march stones, and that if adjoining feuars choose to use them as such, such an adjustment of the march may bind a singular successor. I make no comments on the cases quoted, except to say that I adopt the Lord Ordinary's view on them.

On the whole matter, I see no ground for interfering with the judgment under review, and would move that it be affirmed.

Lord Kyllachy.—In this case I agree with your Lordship and the Lord Ordinary. The case as presented to us perhaps touched some questions of delicacy—questions, I mean, as to the extent to which singular successors are affected by things done or suffered by their predecessors in title. But when the exact situation is understood, I think it is fairly clear that the Lord Ordinary's judgment may be sufficient without trenching on any rule of law and keeping well outside the region of controversy. The important considerations are, it appears to me, these:

(1) In the first place it is proved, and indeed not disputed, that the row of trees in question was planted by the respective authors of the complainer and respondent at mutual expense, and at the time when the original feu was divided between them.

(2) In the next place, it is also proved that it was so planted in order to denote the line of march between the two properties from north to south, as that line of march had been adjusted and settled between them, which it required to be, inter alia, by reason of certain difficulties in the measurements contained in the titles.

Again it is, I think, also clear that the adjustment so made, although probably more or less connected with the existence of the said difficulties, was in itself quite consistent with the titles—that is to say, consistent not only with the original feu-charter, but also the disposition in the respondent's favour. It was so consistent for this, if for no other, reason, that all the measurements in the titles were throughout qualified by the words “or thereby,” leaving a latitude clearly, in my opinion, sufficient to cover the alleged minute discrepancies or variations on which the respondent founds.

These are, it appears to me, the important facts, and such being the position (the adjustment made being consistent with the title, and being also proper and necessary and followed by possession) I have, I confess, no difficulty in concluding that the adjustment of the march was and is effectual not only as against the original owners but also against singular successors. It was so, in my opinion, if for no other reason, on the principle of contemporanea exposition, followed by possession and actings of parties which were themselves similarly interpretative, and by the interpretation involved in which it cannot be doubted that singular successors are affected and bound.

Lord Kincairney.—I have considered this case very carefully, and concur in the opinion of the Lord Ordinary and of your Lordships. The question is not without nicety and novelty. A row of trees is not a very common kind of fence, but in this case it certainly was in appearance, as it is proved to have been in fact, intended to indicate the march between these two properties. There was nothing else to indicate the boundary. The netting was not in fact meant as a fence. There was no agreement that it should be so. I think it is the same as if it had been a hedge or a wall. The configuration of the ground required some divergence from a mathematical line between the two subjects, and the terms of the title specially provided for it. I think the row of trees formed a march fence within the latitude allowed by the title. It was not against, but in accordance with, the right of parties as expressed in the titles.