Scottish Court of Session Decisions

Subject_1 PROPERTY.

Macnair
v.
Lord Cathcart

Date: 18 May 1802
Case No. No 42.

Where property cannot be vindicated in forma specifica, without great injury and devastation, the proprietor is obliged to accept an equivalent.

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In the year 1710, Sir John Schaw of Greenock, Baronet, disponed to Andrew Paterson, a tenement within the burgh and barony of Greenock, together with eight falls of ground adjoining, which were occupied as a garden. The boundaries of this piece of ground are ascertained, and described in the feu-contract. Paterson died about the year 1715, leaving three sons and one daughter.

His eldest son, Andrew, possessed these subjects, upon his title of apparency, till his death in 1747. His youngest son died without issue; but his second son, James, had several children, the eldest of whom was George.

Andrew having left no children, and James being at that time out of the country, his sister Elizabeth, who resided in Greenock, entered into possession of his property, and obtained (14th March 1764) a precept of clare constat from the superior. She afterwards disponed the eight falls of ground, described in the original feu-contract, to James Ewing, mason in Greenock, who was infeft in the subject, (23d June 1766.) His son octained a precept of clare constat from the superior; and afterwards disponed (4th July 1777) the ground to Lord Cathcart, and upon this disposition infeftment followed.

Lord Cathcart made this purchase, as being convenient for the line of a projected street through his property; and it was afterwards feued out to different individuals, in areas for building, with an obligation of absolute warrandice. The eight falls of ground, above mentioned, formed a part of one of these areas, and the ground has since been the property of different persons; and as it became a part of the town of Greenock, many valuable houses have been built upon it.

Matters remained in this situation till the year 1795, when a process of reduction was instituted by George Paterson, as heir to his grandfather, for setting aside the titles of his aunt Elizabeth, and, of course, the disposition to Lord Cathcart, which proceeded from her. Paterson assigned his right to insist in it to John M'Nair, writer in Greenock.

The Lord Ordinary (12th November 1800) pronounced the following interlocutor: “Finds, that restitution of the eight falls of ground in question, which belonged to the pursuer's author, George Paterson, is impracticable, part of said ground having been, many years ago, included in one of the principal streets of the town of Greenock, and the remainder of the said eight falls being the foundation upon which part of two different tenements of houses have been long ago erected: Finds, that the pursuer's author, George Paterson, was the legal proprietor of said ground, and that the pursuer, as in his right, is entitled to a full recompence for the value thereof: That, although the defender appears to have transacted bona fide in the purchase of the eight falls of ground, from one who had made up the form of a title thereto, he must be liable to the pursuer in a fair value or price for said ground; and, before answer as to the quantum, the Lord Ordinary desires to hear parties farther; or, what may be more suitable to the question, that the parties will name a valuator on each side, to report to the Lord Ordinary the sum that ought to be paid.”

The pursuer reclaimed against this interlocutor; and maintained, That it was yet practicable to give him actual possession of this property; but the Court, considering the long silence of the pursuer and his authors, and their acquiescence in the great changes and commixtion of property, which, during that period, have taken place in the town of Greenock, whereby the ground in question could not now, without great injury and devastation, be restored in its former shape, found that the pursuer was barred from making his claim to the property in forma specifica, and, therefore, adhered to the Lord Ordinary's interlocutor.

Lord Ordinary, Armadale. Act. Campbell. Agent, Jo. Dillon. Alt. Brown. Agent, J. Sommerville, Junior. Clerk, Sinclair. Fac. Col. No 39. p. 80.