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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Brown v. Stewart. [1824] ScotJCR 3_Murray_444 (15 July 1824) URL: http://www.bailii.org/scot/cases/ScotJCR/1824/3_Murray_444.html Cite as: [1824] ScotJCR 3_Murray_444 |
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Page: 444↓
(1824) 3 Murray 444
CASES TRIED IN THE JURY COURT.
No. 46
Present, The Lord Chief Commissioner.
Finding as to an alleged encroachment by the wall of a house.
Reduction by Stewart of a decree in absence, confirming one in the Dean of Guild Court, authorizing Brown to erect a house on the Castle Hill, Edinburgh, which was said to encroach on the property of Stewart.
Defence.—The house did not encroach.
“It being admitted, that William Stewart is proprietor of a tenement of houses, and ground, upon the Castle Bank, in the city of Edinburgh, and that James Brown is proprietor of ground immediately to the east of the said tenement;
It being also admitted, that, in the year
Page: 445↓
Whether, previous to the erection of the building complained of, there stood on the property of James Brown, upon, or nearly upon, the site of the said building, a house or houses, the face of the west wall of which ran in a line as far west as the face of the west wall of the building complained of, and which said ancient house had a window or windows in the said wall towards the pursuer's property, the eaves-dropping of which fell into the property of the said William Stewart?”
Jan. 26, 1824.
In this case, there had been a good deal of procedure before the Lord Ordinary in the Court of Session.
The person on whom the onus of proving the point in issue lies, must be pursuer in the Jury Court, though defender in the action.
The Solicitor-General moves to have Stewart, the pursuer in the original action, made pursuer in the issue; and stated that the titles of the parties decided the case.
Fullarton, for Brown.—If the question is
Page: 446↓
Lord Chief Commissioner.—The question is on whom the onus probandi lies, as that must decide who is pursuer; and a question of relevancy, and of our power, may be raised. If the case came here on a general issue, whether there was an encroachment, then the person complaining must make out the encroachment; but if it is reduced to one point, the onus may be altered.
On the general issue, Stewart would have made out a prima facie case, to show that the wall was mutual, and then Brown would have met this by a proof that a house had existed there. If the case is sent here in such a state as requires no proof on the part of Stewart, then the leading point comes to be, whether there was an old house? By the interlocutor sending the case, the question is confined to one point, and we are of opinion that the onus lies on Brown.
Lord Gillies.—If the whole case were sent here, the argument for changing the situation of the parties would be irresistible. But
Page: 447↓
Whether a plan can be received as evidence.
Before any parol testimony was given, the pursuer produced a plan of the ground and houses, to which it was objected, that, being dated in 1816, it could not affect the question; but that, if the pursuer would admit that it was drawn upon information given by him, then the defender would not object.
Lord Chief Commissioner.—I doubt the competency of producing plans as evidence, they are merely good as explaining evidence. This plan must be taken as of the date it bears; but the information on which it was made is a subject of proof. At this stage of the case, I cannot reject the plan; but it is not a thing to go to the Jury, it is for me to look at, and from it to explain the matter to the Jury. I must have some plan, whether it is made now, or in 1816.
When a plan made in 1820 was afterwards given in, his Lordship said, I am frequently puzzled by plans being put in as evidence, but it seems consonant to the law of Scotland, and the practice of the Court of Session. We must, however, be cautious not to allow injustice to
Page: 448↓
Maitland in opening, and Cockburn in reply, stated, That this was a simple question of fact, as to whether the house stood on the same foundation, &c.
The Solicitor-General, for Stewart, maintained, That it was a question of encroachment, and that the Jury, before they could find for Brown, must be satisfied that the old house or wall was built on his property—but that he would prove it a mutual wall.
Lord Chief Commissioner.—This is a case much more for a Jury than a Judge, and ought to be decided on the evidence, and not upon any opinion that may have been formed from having seen the subject. The purpose of a view is merely to present to the mind of the Jurors the thing in reality, that they may understand the witnesses when they describe it. There have been numerous applications for views since the institution of this Court, and this was a proper case for one, but the Court must be cautious in granting them, as in two cases I had an opportunity of seeing that the nature of a view was not understood. The one was the first
Page: 449↓
In this case, there was much previous litigation in the Court of Session, but the point is now reduced to three simple questions of fact, and I am clearly of opinion, that property in the issue is merely descriptive, and does not raise any question of property;—it is the same as if it had been described as immediately to the eastward of Stewart's property.
His Lordship then stated the general outline of the evidence on each side, and left it to the Jury as a case of contradictory evidence on each of the three points.
Verdict—That two houses stood nearly on the scite of the one complained of—that in
Page: 450↓
Counsel:
Cockburn and Maitland, for the Pursuer.
The Solicitor-General, for the Defender.
Solicitors: (Agents, Hotchkis and Meiklejohn, w. s. and J. and A. Smith, w.s.)