Wilson v. Pottinger [1908] ScotLR 419 (07 February 1908)

The pursuer was barred from objecting to the encroachment because the agreement and subsequent approval of plans implied consent to building as authorized by the Dean of Guild. The remedy of removal was inappropriate for a minor, good faith encroachment; compensation was the proper remedy.

Citation: [1908] ScotLR 419
Parties: Pursuer (plaintiff): John Henry Cowan Wilson; Defender (defendant): John Pottinger
Jurisdiction: Scotland
Judgment Date: 07 February 1908
Procedural Posture: Civil Property/building Encroachment / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division
Outcome: Action dismissed; interlocutor of Lord Ordinary recalled; defender entitled to expenses.
Legal Topics: Building Encroachment, Equitable Remedies, Bar/acquiescence, Dean of Guild Jurisdiction

Property Law Civil Procedure Building Encroachment Equitable Remedies Bar/acquiescence Dean of Guild Jurisdiction

Case Brief

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Parties

John Henry Cowan Wilson

Pursuer (plaintiff)

John Pottinger

Defender (defendant)

Procedural Posture

Civil Property/building Encroachment / Appeal (reclaiming Motion) From Lord Ordinary to Inner House, First Division

Legal Issues

1 Whether the defender's building encroached unlawfully on the pursuer's property
2 Whether the pursuer was barred from objecting to the encroachment
3 What is the appropriate remedy for minor building encroachment

Ratio Decidendi

Court Disposition

Action dismissed; interlocutor of Lord Ordinary recalled; defender entitled to expenses.

Orders

Action dismissed
Defender awarded expenses