We know there are peculiar rules of law applicable to such tenements as this, fitting to the exigencies of those cases in which tenements are built in flats. The general rule of law is that there is a proprietorship in and title on land only, and whether it is covered by water or a building or is in its natural state, the property is in land, and includes everything upon it. But in the case of tenements built and occupied in flats, the law accommodates itself to the convenience of the proprietor. In general the title is so framed that the property of the ground on which the tenement stands is vested in the owner of the ground part of the tenement, but it must remain to support the tenement, of which he has the property only of the ground floor, and he must maintain the ground floor to support the tenement above, and so on to the top, and the owners must each and all in their order maintain the tenements above to the owner of the ground tenement. There is no difficulty found in accommodating the rules of law to that state of facts. Now, nothing is more common—and the Sheriff tells us so in his note—than that first floors of such tenements in large and small towns are occupied by shops, and when they are so, they have, according to the taste of the proprietor, more or less ornamented fronts, and we are told that the shop here (and it is the fact) had such an ornamented front, and the cornice it is said has existed for more than fifty years. Now it would require a strong case to entitle the Court to interfere with operations done with the assent of the proprietors of the upper tenements. Usually we do not interfere with any usage of this sort which has subsisted so long. I do not mean to put it on the law of prescription. There has been a use of the things complained of for a period longer than the years of prescription. Now that is evidence of the agreement on which this cornice was built. It was to occupy the space of the front wall, and that being so, and there being no objection, it was part of the shop-front and part and pertinent of the shop. I say nothing of the wall behind, for it is not necessary, and we are not dealing here with it.
Now, I am of opinion that the proprietor above is not entitled to have the cornice removed, and I think we should only pronounce such judgment as looking to the long continued state of possession will continue that possession in the future as it was enjoyed in the past. Therefore I am prepared to find that this erection complained of is part and pertinent of the shop-front, and having subsisted for fifty years the proprietor of the floor above is not entitled to have it removed. On the general doctrine, and in absence of anything in the titles or to be inferred from usage, the centre is the division line between the first and ground flat, but nevertheless the wall in front is the subject in which there is a right of common use, and the state which has so long existed is to be maintained. My opinion is with the Sheriffs, and there is no need to pronounce a declarator of property.
Lord Rutherfurd Clark concurred.
Lord Justice-Clerk —I concur in the opinion of Lord Young. Doubtless in tenements like these questions may arise as to how various parts of one tenement are exclusive or common property. But it is unnecessary to determine any such question here where the case is clear. As undoubtedly there are certain rights of common interest and use in such tenements, these rights are capable of being defined by prescriptive use. I therefore think that since the erections here complained of have been publicly used for a specific period, the law of prescription must be applied.
Lord Craighill was absent.
This interlocutor was pronounced:—
“Recal the interlocutor of the Sheriff-Substitute of 10th June last, and the interlocutor of the Sheriff of 19th July last in the conjoined actions: Find in fact that the cornice referred to in the prayer and in the record of the action at the instance of the appellants David M'Arly against the respondents Mrs Jean Sellers or French and others is part of the front of the shop belonging to the defenders in said action, and that the said front has existed in its present form and condition, and been possessed peaceably and uninterruptedly as part and pertinent of the said shop for forty years and upwards, and that the sign-board referred to in said record is placed on and within the said shop-front: Find in law that the said sign-board and cornice are not encroachments on the property of the pursuer in said action, and that the said pursuer is not entitled to have the same removed: Find the said David M'Arly liable to the respondents in the expenses incurred by them in the Inferior Court and in this Court in both actions,” &c.
Counsel for Appellant— Mackintosh— Ure. Agent— James F. Mackay, W. S.
Counsel for Respondents—Solicitor-General ( Asher, Q.C.)— Pearson. Agent— J. C. Guthrie, S.S.C.