M'Arly v. French and Others (French's Trustees)

The pursuer of this action was heritable proprietor of the first flat at the north-east corner of Argyle Street and Queen Street, Glasgow, which he acquired by disposition dated 12th of May 1876, and recorded in the Register of Sasines for the burgh of Glasgow the 19th of that month. His property was described in the titles as “All and Whole the first flat or storey immediately above the shops of the new tenement of land, Page: 372 ↓

The pursuer pleaded:—“(1) The centre of the joists being the true boundary between the properties, pursuer is entitled to decree of declarator to that effect. (2) Defenders' sign-board and cornice or other erections being encroachments on pursuer's property, the pursuer is entitled to have the same removed, and to interdict against the encroachments being renewed.”

The defender pleaded, inter alia: —“(2) At all events, the defenders and their predecessors having used and possessed the cornice in question as part and pertinent of the shop belonging to them for forty years and upwards, have acquired a prescriptive right thereto. (4) The defenders having right to the said cornice as part and pertinent of said shop, are entitled to be maintained in the possession thereof, and to be assoilzied from this action.”

Authorities—Bell's Prin. sec. 979; Alexander v. Butchart , November 24, 1875, 3 R. 156 ; M'Taggart v. M'Donall , March 6,1867, 5 Macph. 535 ; Patrick v. Napier , March 28, 1867, 5 Macph. 683 ; Leck v. Chalmers , February 3,1859, 21 D. 408 ; Harvey v. Lindsay , June 23, 1853, 15 D. 768 ; Dyce v. Hay , July 10,1849, 11 D. 1266 .

The defenders replied—The alleged encroachments complained of had been used and enjoyed by the proprietors and occupants of the said shop as part and pertinent thereof from the time when the tenement was completed in 1863 till the present time. This use and enjoyment had been acquiesced in by the pursuer and he could not dispute it now.