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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hetherington v Galt  ScotCS CSIH_3 (02 June 1905)
Cite as: 42 SLR 571, (1905) 13 SLT 90, (1905) 42 SLR 571, (1905) 7 F 706,  ScotCS CSIH_3
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02 June 1905
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.
(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.
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was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
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