Warrand v. Watson And Others [1905] ScotLR 43_252 (14 December 1905)

Warrand v. Watson And Others [1905] ScotLR 43_252 (14 December 1905)

A pro indiviso proprietor may seek interdict against outsiders for alleged trespass on common property, but where the defenders deny actual encroachment, interdict de plano is inappropriate and proof of the alleged acts is required. Defenders who are not the other proprietor cannot assert the burgh's rights or raise questions of title in defence to such an action.

Citation
[1905] ScotLR 43_252
Parties
Pursuer: Captain Alexander Redmond Bewley Warrand of Bught; Defenders: Donald Watson and others, indwellers in the burgh of Inverness
Jurisdiction
Scotland
Judgment Date
14 December 1905
Procedural Posture
Possessory Action (interdict) / Appeal From Sheriff Court to Court of Session, Inner House, First Division
Outcome
Appeal sustained; interlocutors of Sheriff-Substitute and Sheriff recalled; proof allowed on the issue of actual fishing by defenders on days other than the eighth day.
Legal Topics
Pro Indiviso Property, Interdict (injunction), Trespass, Competency of Possessory Actions, Rights of Joint Proprietors, Burgh Salmon Fishing Rights
Property Law Civil Procedure Pro Indiviso Property Interdict (injunction) Trespass Competency of Possessory Actions Rights of Joint Proprietors Burgh Salmon Fishing Rights

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Parties

Captain Alexander Redmond Bewley Warrand of Bught

Pursuer

Donald Watson and others, indwellers in the burgh of Inverness

Defenders

Procedural Posture

Possessory Action (interdict) / Appeal From Sheriff Court to Court of Session, Inner House, First Division

Legal Issues

  1. 1 Whether a pro indiviso proprietor can obtain interdict against outsiders for alleged trespass without concurrence of other proprietor.
  2. 2 Whether indwellers of a burgh can assert rights of the burgh in defence to interdict proceedings by a co-proprietor.
  3. 3 Whether interdict de plano can be granted where defenders deny actual trespass but assert a right to fish.

Ratio Decidendi

A pro indiviso proprietor may seek interdict against outsiders for alleged trespass on common property, but where the defenders deny actual encroachment, interdict de plano is inappropriate and proof of the alleged acts is required. Defenders who are not the other proprietor cannot assert the burgh's rights or raise questions of title in defence to such an action.

Court Disposition

Appeal sustained; interlocutors of Sheriff-Substitute and Sheriff recalled; proof allowed on the issue of actual fishing by defenders on days other than the eighth day.

Orders

  • Recall of previous interlocutors granting interdict de plano.
  • Allow pursuer proof of averments that defenders fished on days other than the eighth day.