McLellan & Anor v J & D Pierce (Contracts) Ltd [2015] ScotCS CSIH_80 (10 November 2015)

McLellan & Anor v J & D Pierce (Contracts) Ltd [2015] ScotCS CSIH_80 (10 November 2015)

The order for removal was sufficiently precise as the boundaries were defined in the land certificates, the extent of encroachment was agreed, and the defenders had knowledge of their own constructions; there was no merit in the appeal on the ground of lack of precision.

Citation
[2015] ScotCS CSIH_80
Parties
Pursuer/respondent: James Davidson McLellan; Pursuer/respondent: David Lindsay McLellan; Defender/appellant: J & D Pierce (Contracts) Limited
Jurisdiction
Scotland
Judgment Date
10 November 2015
Procedural Posture
Civil Appeal / Appeal From Sheriff's Judgment
Outcome
appeal dismissed
Legal Topics
Heritable Property, Encroachment, Specific Implement, Remedies, Appeal Procedure
Property Law Civil Procedure Heritable Property Encroachment Specific Implement Remedies Appeal Procedure

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Parties

James Davidson McLellan

Pursuer/respondent

David Lindsay McLellan

Pursuer/respondent

J & D Pierce (Contracts) Limited

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Sheriff's Judgment

Legal Issues

  1. 1 Whether the order for removal of encroaching structures was sufficiently precise to be enforceable
  2. 2 Whether the sheriff erred in granting decree of specific implement for removal of encroachment
  3. 3 Whether the court should exercise equitable discretion to refuse enforcement of removal

Ratio Decidendi

The order for removal was sufficiently precise as the boundaries were defined in the land certificates, the extent of encroachment was agreed, and the defenders had knowledge of their own constructions; there was no merit in the appeal on the ground of lack of precision.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed
  • Sheriff's interlocutor of 8 May 2014 upheld