CHRISTOPHER KERR v Mrs JANET JOBSON or DICKSON & Ors (Court of Session)

These subjects, with the pertinents, were soon after sold by John Guthrie, but were re-acquired by him in the year 1830. Having again completed titles thereto, he, by disposition dated the 23d October 1837, conveyed them with the pertinents to Christopher Kerr, in implement of a sale concluded on 20th April 1835.

The Lord Ordinary, (10th March 1840,) sustained the defences, and assoilzied the defenders; ‘without prejudice always to any competent objections, which may, in due and competent form, be raised by the pursuer, to any particular operation to be performed, or structure to be erected, by the defenders, on the ground or space in question, as their property reserved by their authors; and reserving the answers of the said defenders to any such objections as accords,’ &c. .

Lord Ordinary, Moncreiff. Act. Lord Advocate, (Rutherfurd,) Dean of Fac. (Hope,) Cowan. Maclachlan & Ivory, W. S. Agents. Alt. M'Neill, Anderson. Storie & Baillie, W. S. Agents. T. Clerk.

Note .—The issue raised by the summons is, properly, Whether the space of ground in question is the property of the pursuer, or whether it remained with Nicoll, the original superior of the pursuer's author, and has been transmitted to the defender, Mrs Dickson, as in his right. The Lord Ordinary is of opinion, that in every view of the case it is not the property of the pursuer: he thinks that it is the property of the defenders; but that, at any rate, the pursuer has shown no relevant grounds for requiring the Court at his instance to declare the contrary.

The other feu-disposition granted to Yeaman a few years afterwards, though the south boundary is there differently constructed, is equally precise as to the reality of the intention, that the beach or shore should still remain the property of Nicoll. But the terms of Guthrie's title are quite sufficient for this cause.