John Jack - A. Maconochi - Stuart v. William Lyall - Sir John Campbel - A. M'Neil [1835] UKHL 1_SM_77

UKHL
John Jack - A. Maconochi - Stuart v. William Lyall - Sir John Campbel - A. M'Neil
[1835] UKHL 1_SM_77 · 1835-04-01
Circumstances in which a servitude of eavesdrop was sustained in favour of one party over the property of another.Subject_ Process — Appeal.A proof was taken before the bailies of a burgh, and in an advocation the Lord Ordinary pronounced a special judgment on the facts; a relative action of declarator was brought by the advocator, and of consent of parties the proof was held as repeated in the declarator, and the processes were conjoined, and the respondent was assoilzied. An objection by the respondent to an appeal entered in the conjoined processes that it was incompetent under 6 Geo. 4. c. 120. s. 40. sustained in so far as the appeal related to the matters of fact.In the month of September 1830 John Jack, grocer in Paisley, presented a petition to the magistrates and Liners of Paisley, setting forth “that the petitioner is proprietor of a tenement in High Street of Paisley, and of some houses at the back, which are bounded on the east by the property of Mr. William Lyall, grocer in Paisley: That the petitioner is at present rebuilding a back room, and some doubts are entertained by the petitioner and Mr. Lyall as to the line of march between their properties and their respective rights, and therefore he wishes a visit and report by the liners of the burgh, and a sentence by your honours thereon.” He therefore prayed the magistrates

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Lyall in defence stated that the spot of ground upon which Jack proposed to build was immediately contiguous to the west wall of Lyall's back shop, from the roof of which he had right to a servitude of water-drop on that part of Jack's ground on which Jack intended to build. He farther stated that on the same line of march he was proprietor of a house three stories in height, which had the same water-drop to the west upon the property of Jack.The magistrates on the 27th of September appointed the liners to meet upon the ground in dispute on the following day, which they accordingly did, but reported that they could form no judgment upon the question till proof had been adduced by parties of their several allegations. A proof was in consequence allowed by the bailies, but before it was taken, Lyall, (on the 2d of October 1830,) presented a petition to the magistrates, in which he prayed them “to conjoin this application with that at the instance of the said John Jack, or to proceed separately, as to your honours may appear advisable, and, with the assistance and advice of the liners of the burgh, to fix and determine the line of march of that part of parties' properties in High Street of Paisley not considered to be specially included in the said other application, at the instance of the said John Jack, and to find whether the petitioner is not entitled to an eavesdrop along his west

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Jack thereupon brought the case under review of the Court of Session by advocation, and at the same time raised a summons of declarator against Lyall, in which after describing their respective properties he set forth, “That between the two properties there has existed for a period much beyond the years of the long prescription a dyke running backwards from the High Street of Paisley as far as the properties of the said defender extend, which dyke formed and has always been understood to form the march line between the properties of the pursuer and defender: That the said march dyke was meant and intended as a division

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Lyall pleaded in defence that the decree of the magistrates formed res judicata, as by it the line or boundary between the properties had been fixed, and at all events the claim was unfounded.

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A separate record was made up in the action of declarator which depended before Lord Fullerton. The advocation came before Lord Medwyn, who, by an interlocutor (20th June 1832) containing special findings as to the matters of fact, affirmed the judgment of the magistrates by repelling the reasons of advocation, remitting simpliciter and finding expences due.Jack reclaimed, and the record in the declarator being now closed, Lord Fullerton reported it to the Inner House, and the following minute was thereupon lodged by the parties:—
“Forsyth, for the advocator (Jack), stated that an action of declarator relative to the same subject had been raised in this Court at the instance of the advocator, and a record completed and closed; and in respect that the parties consider it unnecessary to have recourse to further proof than has been already brought forward by them, upon which they are willing to rely; therefore the advocator John Jack consented, and hereby consents and agrees, upon the process of declarator being remitted to the Inner House and conjoined with the process of advocation, that the proof led in the inferior Court, and brought under review in the advocation, shall be held as repeated in the conjoined actions, and received by the Court as a proof concluded by the parties respectively, not only in the advocation, but also in the action of declarator.
A. M'Neill, for the respondent Mr. Lyall, consented, and hereby consents and agrees, to the above arrangement on the part of his client.”The Court (16th Jan. 1833) thereupon allowed mutual minutes of debate on the proof, and conjoined the two actions. On advising them (12th June 1833)

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Jack appealed.The Respondent pleaded as a preliminary objection, that by the statute 6 Geo. 4. c. 20, s. 40, it is enacted, “that when, in causes commenced in any of the courts of the sheriffs, or of the magistrates of burghs, or other inferior courts, matter of fact shall be disputed, and a proof shall be allowed and taken according to the present practice, the Court of Session shall, in reviewing the judgment proceeding on such proof, distinctly specify in their interlocutor the several facts material to the case which they find to be established by the proof, and express how far their judgment proceeds on the matter of fact so found, or on matter of law, and the several points of law which they mean to decide; and the judgment on the cause thus pronounced shall be subject to appeal to the House of Lords, in so far only as the same depends on or is affected by matter of law; but shall, in so far as relates to the facts, be held to have the force and effect of a special verdict of a jury, finally and conclusively fixing the several facts specified in the interlocutor:” “But it is hereby expressly provided and declared, that in all cases originating in the inferior courts, in which the claim is in amount above 40 l., as soon as an order or interlocutor allowing a proof has been pronounced in the inferior court, (unless it be an interlocutor

Footnote

1 11 Shaw, Dunlop, and Bell, 711.

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The Appellant answered that the rule of the statute did not apply to any action instituted originally in the Court of Session, and that if the proof had been taken in the action of declarator in place of in the process before the magistrates he could clearly not have been prevented from appealing against any judgment pronounced in the declarator. But the respondent had concurred with the appellant to dispense with the re-examination of the witnesses in the declarator, and to hold the proof which had been previously taken in the advocation to be held

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(On the merits, the parties pleaded mainly on the titles and the proof, which did not involve any point of general importance.)

Lord Brougham : — My Lords, in the case now under consideration there are two questions raised by this appeal; the first, whether we are entitled, under the Judicature Act of the 6th of George the Fourth, to go into the merits of the case and the evidence; and the second, whether, if we are excluded from looking into the evidence,— there is a matter of law now before you which will entitle you to reverse the decision of the Court below? Upon the first question I have already stated my opinion, in several observations which I have thrown out, that this case, although not within the express terms of the act of George the Fourth, is clearly within its intention. If we were allowed to go into the evidence upon the footing of its being not evidence in this particular action, but evidence in another action which was afterwards conjoined with this, we should open a door to introduce all the

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“That the pursuer formerly brought, and has in dependence in this Court, an action at his instance against the defender, relative to the march or marches in dispute here, and that it would have been perfectly regular and competent to have introduced into that action the conclusions of the present.”
Now, that is his own argument. Then here is another passage:
“That he is entitled to sell the ground that belonged to his predecessors and authors, because he bought it, and is infeft in it, and was and is entitled to build on the sites of the houses erected by them.”
That refers to property, not to servitude. He claims the brick wall of five or six inches, as if he had built the wall himself. That, again, is not servitude. He says, in substance:
“To show you that I had a right to drop water there, I did more than drop water there; for, thirty-five years ago, the person from whom I take my title actually built a brick wall; and it is very hard that I cannot drop water in a place where I have a right to build a wall.”

That is the point in dispute

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It was accordingly ordered and adjudged, by the Lords Spiritual and Temporal, in Parliament assembled, “That the said petition and appeal be, and is hereby dismissed

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Solicitors: Andrew M. M'Crae— Alliston, Smith, Lock, and Alliston,—Solicitors.