Murdo M'Kenzie - Moncreif - Skene v. David Ross and his Curators - Ada - Cockbur - Maitland [1822] UKHL 1_Shaw_109

UKHL
Murdo M'Kenzie - Moncreif - Skene v. David Ross and his Curators - Ada - Cockbur - Maitland
[1822] UKHL 1_Shaw_109
An action of damages for trespass having been remitted to the Jury Court, and a view ordered—Held,—1.—That the viewers are to be selected from the first twelve jurors in the list returned for the county where the property is situated, and where the view is to be taken, although lists of other counties belonging to the same circuit have been delivered.—2.—That a bill of exceptions is an incompetent mode of objecting to these viewers acting as jurors on the trial.—3.—That a motion for a new trial, founded on that objection, being refused, all review quoad hoc is incompetent.—4.—That, in particular circumstances, parole evidence, explanatory of the situation of marches, is admissible, although there be a written contract in relation to them; and,—5.—That a bill of exceptions against such evidence being disallowed, and no appeal taken within fourteen days thereafter, review is incompetent.M'Kenzie , proprietor of Ardross in the county of Ross, brought an action against Ross, an adjoining proprietor, stating, “That the said David Ross has taken it upon him, most illegally and unwarrantably, to build a house upon a part of the hill or muir of Tolly, which is the absolute and undoubted property of the pursuer: That part of the said hill or muir having been adjudged to belong to the estate of Ardross by a contract entered into, in the year 1757, between the pursuer's grandfather and the now deceased Captain Cuthbert of Milncraig, and exclusively possessed by the pursuer and his predecessors ever since that time; and although the pursuer has uniformly claimed right to the exclusive possession of the part of the said hill or muir of Tolly so found to belong to the said estate of Ardross, yet the said defender, by his tenant Donald Munro M'Finlay, most illegally and improperly keeps possession of the house so built by him upon the pursuer's said exclusive property.” He therefore concluded that Ross should be ordained to demolish and remove the house,—to cease from molesting him in future,—and to pay £1000 of damages. These allegations being denied, the following issues were prepared, approved of by the First

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“1. Whether the defender, by himself or his tenant Donald Munro M'Finlay, has, without the pursuer's consent, and to the loss and damage of the said pursuer, erected a house in the neighbourhood of the village of Tolly, upon a part of the muir of Tolly formerly belonging in common property to the predecessors of the pursuer and defender in their respective lands, but which, by a contract of division of said muir, entered into betwixt the pursuer's grandfather and the defender's predecessor in the lands of Milncraig, in the year 1757, became the exclusive property of the pursuer? 2. Whether the defender, by himself or his foresaids, have committed other encroachments on the part of the said muir, his the pursuer's exclusive property as aforesaid, by cutting and baring the surface thereof, and carrying off the same for fuel, to the loss and damage of the pursuer?”
The trial was appointed to take place at Inverness at the same time as that in the preceding case, and the same objection occurred relative to the appointment of viewers. In the course of the trial, Ross having proposed to adduce witnesses to prove the state of possession, M'Kenzie objected that parole evidence was incompetent, seeing that the respective marches of the parties were established by the contract of 1757. Lord Pitmilly repelled the objection, on the grounds subsequently stated by his Lordship in a report to the Court. * A bill of exceptions was tendered; and the jury having found for Ross, M'Kenzie moved the Court of Session for a new trial, on the ground, 1. That the viewers had been irregularly appointed; and, 2. That incompetent evidence

Footnote

* These grounds were thus explained by his Lordship:— “I repelled the objection for this reason, that although the evidence of the present state of the marches could not invalidate the contract 1757, on the ground of the marches fixed in that contract having been altered by subsequent usage and prescription, (no such question having been put in the issues); yet, in a nice and narrow question of fact, as the present turns out to be, whether the disputed spot where the hut is built (which is very near the march) was included in Ardross or in Milncraig's share of the muir, as settled by the contract 1757, the evidence of the marches since the date of the contract might serve as an article of evidence in a doubtful case as to the precise line allotted by the contract 1757, and on which side of the line the hut in dispute was situated. I distinctly stated that it was only in this view, and as the witnesses could scarcely be examined at all without hearing their account of the present state of the marches, that I would allow the investigation to proceed; and accordingly I explained very fully to the jury, in summing up, that no question having been put to them in the issues, whether the march agreed upon in 1757 was departed from by subsequent usage, they must not allow the evidence of usage per se to bring about a verdict in favour of the defender, but must bold it merely as an article of evidence, the weight due to which they would insider in determining as to the import of a nice and narrow proof as to whether the hut was built on Ardross or Milucraig's side of the march, as agreed on in the contrect 1757.”

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Footnote

* Not reported.† See the Lord Chancellor's speech in the preceding case.Counsel: Appellant's Authority .—2. Dict. p. 218, 219.Solicitors: Fraser,— J. Campbell,—Solicitors.

(Ap. Ca. No. 2.)