Wallace James v. Montgomerie & Co. [1902] ScotLR 39_517 (08 March 1902)

Wallace James v. Montgomerie & Co. [1902] ScotLR 39_517 (08 March 1902)

The land in question was part of the common good of the burgh of Haddington, had been appropriated from time immemorial to public use, and the complainer, as a burgess, was entitled to interdict to prevent encroachment. The respondents failed to prove title or possession, and the evidence of public use and possession by the burgh was sufficient.

Citation
[1902] ScotLR 39_517
Parties
Complainer/respondent: Dr John George Wallace James; Respondents/reclaimers: Montgomerie & Company, Limited; Respondents: Provost, Magistrates, and Town Council of Haddington
Jurisdiction
Scotland
Judgment Date
08 March 1902
Procedural Posture
Civil (suspension and Interdict) / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor
Outcome
Interlocutor of the Lord Ordinary adhered to; judgment for the complainer; interdict granted as craved.
Legal Topics
Common Good Land, Immemorial Public Use, Title to Sue, Interdict, Encroachment, Burgh Law
Property Law Local Government Law Public Rights Common Good Land Immemorial Public Use Title to Sue Interdict Encroachment +1 more

Case Brief

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Parties

Dr John George Wallace James

Complainer/respondent

Montgomerie & Company, Limited

Respondents/reclaimers

Provost, Magistrates, and Town Council of Haddington

Respondents

Procedural Posture

Civil (suspension and Interdict) / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the disputed land formed part of the common good of the burgh of Haddington
  2. 2 Whether the land was appropriated from time immemorial to the use and enjoyment of the burgesses and inhabitants
  3. 3 Whether an individual burgess had title to sue for interdict to protect such land

Ratio Decidendi

The land in question was part of the common good of the burgh of Haddington, had been appropriated from time immemorial to public use, and the complainer, as a burgess, was entitled to interdict to prevent encroachment. The respondents failed to prove title or possession, and the evidence of public use and possession by the burgh was sufficient.

Court Disposition

Interlocutor of the Lord Ordinary adhered to; judgment for the complainer; interdict granted as craved.

Orders

  • Interdict granted prohibiting Montgomerie & Co. from encroaching on or interfering with the specified land.
  • No order for restoration of the ground at this stage, per complainer's counsel's statement.