MacDonald v. Turcan Connell (trustees) [2004] ScotCS 64 (12 March 2004)

MacDonald v. Turcan Connell (trustees) [2004] ScotCS 64 (12 March 2004)

The description in the 1970 Disposition and the associated plan did not include the alveus of the Water of Leith, and the presumption of boundary to the medium filum was displaced. There was no sufficient act of possession or assertion of ownership to support a prescriptive title to the alveus.

Citation
[2004] ScotCS 64
Parties
Pursuer: Mrs Elizabeth MacDonald or Dalton; Defenders: Turcan Connell (Trustees) Limited and Others
Jurisdiction
Scotland
Judgment Date
12 March 2004
Procedural Posture
Civil / Outer House, Court of Session, Opinion on Declarators of Title and Servitude
Outcome
Action dismissed quoad the first declarator; case to be put out By Order for uncontested second conclusion.
Legal Topics
Title to Land, Prescription, Servitude Rights, Boundary Determination
Property Law Land Law Title to Land Prescription Servitude Rights Boundary Determination

Case Brief

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Parties

Mrs Elizabeth MacDonald or Dalton

Pursuer

Turcan Connell (Trustees) Limited and Others

Defenders

Procedural Posture

Civil / Outer House, Court of Session, Opinion on Declarators of Title and Servitude

Legal Issues

  1. 1 Whether the 1970 Disposition was apt to found title to the alveus of the Water of Leith
  2. 2 Whether the necessary rights of ownership had been asserted for the prescriptive period
  3. 3 Whether the presumption of boundary to the medium filum of the river was displaced

Ratio Decidendi

The description in the 1970 Disposition and the associated plan did not include the alveus of the Water of Leith, and the presumption of boundary to the medium filum was displaced. There was no sufficient act of possession or assertion of ownership to support a prescriptive title to the alveus.

Court Disposition

Action dismissed quoad the first declarator; case to be put out By Order for uncontested second conclusion.

Orders

  • Repel the second plea-in-law for the pursuer.
  • Sustain the third pleas-in-law for the first and second defenders to the extent of refusing decree of declarator in relation to the first declarator sought.