defender had thus acquired as owner the ground in dispute. It was incompetent to inquire into earlier titles-Fraser v. Lord Lovat, February 18, 1898, 25 R. 603, 35 S. L.R. 471; Ramsay v. Spence, 1909 S.C. 1441, 46 S.L.R. 810: Auld v. Hay, March 5, 1880, 7 R. 663, 17 S. L. R. 465. The evidence was sufficient to show that the defender and his author had had uninterrupted possession for forty years, and was entitled to the ground as proprietor. Where a party had a property title his possession should be ascribed to that rather than to an inferior right-Young v. North British Railway Co., August 1, 1887, 14 R. (H.L.) 53, 24 S. L.R. 763. Reid v. M'Coll (cit. sup.) was a wholly different case from the present. Even if the defender's property was to be taken as bounded by Quarrelton Street as it was in 1834, this was enough for him, for where a subject was bounded by a road the medium filum thereof was the boundaryDobbie v. Magistrates of Ayr (cit. sup.); Cadell v. Allan, March 17, 1905, 7 F. 606, 42 S.L.R. 514

At advising

LORD DUNDAS-The subject-matter of this case is a small piece of ground extending to about 5 poles, and indicated on the plan by the letters A B G F. The pursuer Mr Houstoun is proprietor of the lands and estate of Johnstone, and it is sufficiently clear from the pleadings, the pursuer's titles, and his evidence, that this little piece of ground is part of the estate included in his and his predecessors' infeftments. The defender, however, claims that it belongs to him, either as falling within the express terms of a feu charter granted in 1834 by the then proprietor of Johnstone to the defender's author James Marnock, or alternatively, as having been acquired by him in virtue of prescriptive possession upon a title habile to include it. The Sheriff-Substitute has held that the ground in dispute has been so acquired by defender, and has also found alternatively that, assuming the defender's title is not habile to found prescriptive possession of the said ground, it was, upon a sound construction of the said feu charter, embraced in the feu granted to James Marnock. I am of opinion that the Sheriff-Substitute is wrong in both these views, which I prefer to deal with in the reverse order.

The question of express grant must depend upon a construction of the terms of the feu charter of 1834. The land feued is described as . . . (quotes, v. sup.).. The question arises as to the extent of the feu thus granted towards its eastern boundary: Was it bounded by the western line of Quarrelton Street, as existing in 1834, or did it extend to the medium filum of that street? Upon the latter hypothesis the grant was sufficiently wide to include all (I think more than all) the ground now in dispute. Upon the former hypothesis the grant would include no part of it; for it is, in my opinion, clearly proved (as I shall afterwards explain) that the western line of Quarrelton Street in 1834 lay on the west of the disputed

Nov. 10, 1910.

area. I think that upon a sound construction of the feu charter no part of that area was included in Marnock's feu. The general rule of construction is quite settled (I quote Lord Rutherfurd Clark's words in Currie v. Campbell's Trustees, 1888, 16 R. 237, at p. 241), "that what is described as the boundary of a feu in the feu-disposition which creates it is by that very fact excluded from the feu." If Quarrelton Street was in 1834 a private road, this rule would clearly apply to exclude it from the feu (Louttit's Trustees, 1892, 19 R. 791). But it appears more probable (though the actual fact is not certainly proved) that Quarrelton Street was at the said date a public road. On this assumption it must be admitted that the general rule is not absolute; though it would not, I think, be easy to lay down rules of general application as to the circumstances under which, and the extent to which, counter presumptions may arise. These, I apprehend, must be weighed and decided upon the merits of each individual case. The recent decision in Magistrates of Ayr v. Dobbie (1898, 25 R. 1184) was founded on by the defender as supporting his contention that Marnock's feu must be held to have extended to the middle line of Quarrelton Street. The case is not in every respect on all fours with the present. Its rubric bears that "when a proprietor dispones two pieces of ground, one on each side of a road and opposite each other, and describes each as bounded by the road, the presumption is that he dispones the solum of the road, and that the boundary of each of the pieces of ground is the medium filum of the road." This presumption, however, as appears from the opinions of the learned Judges, especially that of Lord Moncreiff, arises only "in the absence of special circumstances or indications of contrary intention." Accepting as generally correct the views expressed in Magistrates of Ayr v. Dobbie, I am of opinion that we find in the present case sufficient circumstances and indications to outweigh any legal presumption that might be relied on as taking it out of the well-settled general rule above stated applicable to the construction of feu charters. The lands are described not only as bounded by Quarrelton Street on the east part, but also as "ground on the west side of Quarrelton Street in the plan in the town of Johnstone." This old plan is not forthcoming; but it is difficult to suppose it would delineate the streets otherwise than by their external lines; and the words quoted seem to me to mean that the land conveyed lay wholly westward of the west line of Quarrelton Street. Then, the measurements given in the feu charter,-and one may, of course, legitimately refer to these in a question of this sort where the description of the boundary is not precise are adverse to the defender's contention. It appears from the evidence that the respective descriptions by Scotch and English measure coincide with each other wonderfully closely-they only differ by about seven square yards. The actual measurement of the ground down to, but

v. Barr

, 1910

not going eastward of, the western line of Quarrelton Street as in 1834 shows an excess of between one and two poles over the described measurements, which accords well enough with the skilled evidence of Mr Kerr, C. E.-"I find as a rule that the Johnstone feus are a little in excess of the areas stated in the title." But if the defender's contention is correct, the described measurements of the charter would be exceeded by more than five poles, in addition to the excess already mentioned as shown by a comparison of the actual with the described measurements. This,

in regard to the small subject we are dealing with seems to me a grave discrepancy such as one would not expect to find. Again, it is to my mind a significant fact (as illustrating the contemporaneous views and intentions of the parties to the feu charter) that the original feuar, Marnock, made no claim against the railway company for any land taken from him in consequence of their operations ex adverso of his feu about 1840. If the feu extended to the middle line of Quarrelton Street as it then existed, it is clear from many of the plans produced that the railway company must have taken a part of it in making their alterations in connection with a bridge over their line. But the pleadings in connection with Marnock's claims against the company show conclusively that it was the view of both the claimant and the company at the time that no part of his land was taken; and Marnock's claim was so elaborately and meticulously presented that it is clear that he and his advisers were quite satisfied there was no ground at all for including in it a claim in respect of even the smallest portion of land taken. It is noteworthy, however, that the defender's record and plans are framed on a contrary assumption in fact. The combined effect of the considerations I have indicated is, in my judgment, sufficient to rebut any presumption which might otherwise arise in favour of the defender's view upon this part of the case; and the matter is, in my opinion, left to depend upon the general and well-settled rule that the subject which is described as bounding the feu on the east was itself wholly excluded from it. The defender's case therefore, so far as it is founded upon express grant, appears to me to fail.

I now turn to examine the defender's other argument, viz., that even in the absence of express grant to his author of the little piece of ground which he claims, he has acquired right to it by prescriptive possession upon a habile title. It is, in my judgment, clearly proved that about 1810 the Glasgow, Paisley, Kilmarnock, and Ayr Railway Company, under statutory powers, executed certain works for the purpose of carrying Quarrelton Street by a bridge over their line, and built a retaining wall on the west side of the bridge, which for practical purposes has ever since formed the western boundary of Quarrelton Street at that point as used by the general public. In so doing they altered the said western line of the street,

which previously ran exactly in front of Marnock's cottage. These facts are, I consider, established beyond doubt by the evidence. I need not detail it, but I may refer generally to the railway plans; the pursuer's estate plan; Mr Martin's plan, prepared under the special instructions of the Sheriff-Substitute in the Sheriff Court proceedings between Marnock and the railway company; and to the printed excerpts from the pleadings and evidence in these proceedings. The pursuer's counsel argued that if, as I have already held to be the case, the original feu charter of 1834 gave the defender's author James Marnock no right of property beyond the western line of Quarrelton Street as it existed in 1834, the description in the disposition by Marnock to the defender's father in 1860 (to be immediately referred to) could not legally convey any land outside that boundary; and that if, as alleged for the defender, that disposition bears to convey the ground eastwards up to the line of the retaining wall, the disposition was to that extent granted a non domino. On the other hand, the defender's counsel founded upon a disposition granted in favour of his father by James Marnock, dated in 1860. I gather that this deed was not referred to in the Court below; it is nowhere mentioned in the pleadings, nor by the Sheriff-Substitute; and it was only printed for our use at the last moment. Still, even if the argument specially based upon it is, as seems probable, an afterthought, it does not come too late for our consideration. The description of the lands in the disposition of 1860 is in the same terms as that contained in the feu charter of 1834. The defender's counsel maintained that this disposition is a title habile to include the ground now in dispute, which admittedly lies to the west of the retaining wall, which in 1860 formed, as it still does, the western line of the street; that he and his authors have had exclusive and uninterrupted possession of it for more than the prescriptive period; that he has thus acquired it in property; and that any consideration of the terms of the feu charter of 1834, with reference to the actual position and extent of Quarrelton Street as at that date, is illegitimate and incompetent. On this branch of the argument the pursuer's counsel founded strongly upon the case of Reid's Trustees v. M‘Coll (1879, 7 R. 84), and especially upon the opinion of the Lord Justice-Clerk (Moncreiff), who said (p. 90) that "a wall, a fence, a road, a building, even marchstones, may long have been removed or destroyed, but as long as it is possible to prove their site they will be the limit of the property of which they have been described as the boundaries." question thus raised is to my mind difficult; and Reid's case was a narrowly decided one, the judgment of the Lord Ordinary (Adam) being reversed by this Division, where one of the three Judges present (Lord Gifford) doubted, though he did not dissent from the decision of the Court. If the judgment is a sound one (and I am not aware that it has ever been disapproved), it

The

A

seems to answer completely this branch of the defender's argument. But even on the contrary assumption, it is, of course, clear that the defender must, in order to succeed, prove his averments of continuous and exclusive possession of the subjects for the prescriptive period; and this I think he has failed to do. Some of the modes in which such possession is alleged to have been had are in themselves of little importance or significance-e. g., the fact that some flowers and a few bushes were planted next to the cottage front and also beside the retaining wall- a roadway, however, always being available between; and that about 1890, when the flowers and plants were allowed to die away, because "the cattle were destroying the flowers and the hens were scraping them up," ashes were put upon the ground. The disputed area was also available for and to some extent used by carts; and the cattle from the cottage byre occasionally (though not usually) passed over it on their way to graze. midden-stead existed in the corner of a field belonging to the pursuer and leased to the feuars (as after-mentioned), to the north of the cottage, and the dung from the midden was periodically carted away over the disputed area by the purchaser's carts. It is of more importance to observe that an iron gate with a post was erected by James Marnock, and a wooden wicket beside it, and continuously maintained by the feuars thereafter. The wicket gate, which was wide enough to admit a cow, was never locked; as to the iron gate the evidence varies, but I think the gist is to the effect that it was usually locked. There was also, until the defender recently. (1908) put up the barricade complained of, what is variously described as a "slap," a "flake,' or a slip-bar gate with moveable rails. I think these are the principal facts relied on by the defender as evidence of exclusive possession. But whatever weight might otherwise be fairly attached to them, it must be kept in view that, during the whole period of alleged possession-indeed from the date of the feu charter till 1904-the owners of the feu were tenants of the pursuer and his authors in certain fields immediately adjoining it. As the defender puts it, Marnock was also tenant of the fields round Greenend Cottage. We practically continued the state of matters which was in vogue in the days of Mr Marnock." Marnock's missives of lease are produced, and contain express liberty to him "to make use of what is called Hagg Road or Quarrelton Street for any purposes I may require, I being bound in my proportion of repairs with the adjoining tenants who may have access to the same. No subsequent missives or leases are produced, nor does it appear whether or not such contracts ever existed in writing. Now it seems to me that all the alleged acts of possession were at least quite as referable to the right of tenancy of the fields as to that of ownership in the feu; and in that view cannot, I think, be pleaded by the defender as amounting to the adverse possession which would be necessary to exclude the pursuer, who

66

. Barr

, 1910

might justly claim to regard his tenant's possession as his own. The possession, to avail the defender, must have been not only continuous but clearly and unequivocally referable to his title of ownership. Now there was never, so far as appears, any exclusion or any challenge of the pursuer or his servants as regards access to the disputed area. On the contrary, it seems that on the occasions (naturally not frequent) when they desired to pass over it, they did so unchecked and unchallenged. Thus Hatrick, the pursuer's forester, describing the status quo before the defender put up his recent barricade, speaks of the "slap" that "had two poles in it," and says "You got in through there. I have gone in dozens of times. That was on the very place where the barricade is now. Anyone going in passed through the iron gate near the entrance to Greenend Cottage, and then went past the end of Greenend Cottage through this slip-bar gate, down through between the upright posts. Also, "I went that way in connection with estate business any time it was required." In my opinion, therefore, this branch also of the defender's case must fail.

The question whether or not the pursuer is in fact owner of this little piece of ground is not directly raised, looking to the form in which the action is brought. If the views I have expressed are sound, the logical result would be that the defender is not entitled to perform at his own hand any operation at all upon the disputed area. But it appears from the correspondence (produced though not printed), and was made quite clear from the admissions of the pursuer's counsel at our bar, that all the pursuer desires is a decree of Court that the defender has no right to exclude him from the disputed area, which he values as giving access to his remaining ground lying to the northward of the feu, near the railway. To such a decree the pursuer is in my opinion entitled - the defender having failed to show that he is proprietor of the subjects.

Two points were canvassed in the arguments, which appear to me to be entirely irrelevant. The first related to a tunnel, which the defender maintained was a sufficient and the only legitimate access for the pursuer to his land near the railway. Whether or not the tunnel was designed or is suited for that purposeisquiteimmaterial, as I think, to the question whether or not the defender is entitled to debar the pursuer from access by way of the disputed area. The other matter seems to me to raise no relevant argument, but, at the best, to amount to something in the nature of a convicium. We are not, in this action, concerned with the pursuer's doings in regard to the western side of Quarrelton Street to the southward of the locus of this dispute, nor with the merits of his transaction with Mrs Polson in 1908 in regard to the land which is now a public park. I should add, however, that nothing I have seen or heard in this case leads me to suppose that Mr Houstoun has done anything ultra vires or illegal, looking

v. Barr

, 1910

to his position as proprietor duly vested in the estate of Johnstone.

Upon the whole matter, I think we must sustain this appeal and grant the pursuer his remedy substantially as craved. The interlocutor will be adjusted by the Court unless the parties submit concerted terms.

LORD JUSTICE-CLERK, LORD ARDWALL, and LORD SALVESEN concurred.

The Court pronounced this interlocutor

"The Lords having heard counsel for the parties on the pursuer's appeal against the interlocutors of the SheriffSubstitute of Renfrew, dated respectively 15th and 25th November 1909, Sustain the appeal and recal the said interlocutors . . . Find (1) that by feu charter granted by the pursuer's author in 1834, and sasine following thereon, James Marnock, the defenders' author, was duly infeft in all and whole the piece of ground therein described with the pertinents, bounded, inter alia, by Quarrelton Street on the east; (2) that the said James Marnock disponed to the father of the now deceased John Barr subjects described in language identical with that of the said feu charter, conform to disposition dated 6th December 1860 and recorded 6th August 1861; (3) that on the subjects feued to him Marnock built a house now known as Greenend Cottage and a byre; (4) that in 1834 the western line of Quarrelton Street ran immediately in front of and adjacent to the eastern line of said buildings; (5) that between 1834 and 1904 the now deceased John Barr and his authors exercised continuously and without interruption for more than the prescriptive period acts of possession (to be afterwards specified) upon the area of ground in dispute, lying between the eastern walls of said buildings and what is now the western boundary of Quarrelton Street, as generally used by the public, which area is shown on the plan by the letters A, B, G, F; (6) that the said piece of ground, as well as the subjects feued to James Marnock, were in 1834, and still are, part of the lands and estate of Johnstone, in which the pursuer is, and his author was then, duly infeft; (7) that the now deceased John Barr and his authors, inter alia, (a) planted flowers and bushes immediately in front of said house or cottage, and also next to the retaining wall shown on said plan, but leaving always an available roadway for carts and the like, (b) kept hens on said area, and used it occasionally for the passage of carts and of cattle, (c) regularly used said area for the conveyance of dung to their midden-stead in a field to the northward of the cottage leased by the now deceased John Barr and his authors successively from the pursuer and his authors, and also for the removal of said dung in carts provided by the purchasers thereof, including the pursuer, (d) erected and maintained an

iron gate with a post and a wooden wicket gate on the line shown D E on the plan, the former being usually (but not always) kept locked, but the latter being kept unlocked, and also a slipbar gate with wooden posts and moveable rails on the line FG on said plan; (8) that the pursuer and his servants and others occasionally (though not often) passed over the said area of ground when estate business or other occasion demanded, and that in so doing they were never at any time challenged or hindered; (9) that from 1834 to 1904 the said deceased John Barr and his authors successively were tenants under the pursuer and his authors of certain fields immediately adjoining the said feu, including the field in which the midden-stead was situated; (10) that the said deceased John Barr erected a wooden barricade in place of the said slip-bar gate, and that the defenders propose to erect a dwarf wall and railing. ..: Find in law (1) that on a sound construction of the said feu-charter of 1834 the ground thereby conveyed to James Marnock did not extend to the medium filum of Quarrelton Street, but was limited on the east by the then western line of said street, so as to include no part of the land in dispute; (2) that the disposition in 1860 by James Marnock, if and in so far as it bore to convey to the father of the now deceased John Barr ground further east than the western line of Quarrelton Street, as existing in 1834, was granted a non domino; (3) that the acts of possession founded upon by the now deceased John Barr are referable at least as well to the said right of tenancy as to that of feu, and are not sufficient in law to import a right of property in the defenders in the piece of ground in dispute or any part of it; (4) that the defenders, having failed to prove that they are proprietors of the same, either by express grant or in virtue of prescriptive possession upon a habile title, are not entitled to prevent the pursuer, his servants or others having his authority, from freely entering upon or passing over the said ground for all lawful purposes: Therefore interdict the defenders, their workmen and all others employed by them or acting under their instructions or on their behalf, from erecting a dwarf wall or railing, or any erection on the piece of ground described in the first head of the prayer of the petition, or from conducting any operation on the said piece of ground, in such a manner as to prevent or impede the pursuer, his servants or others having his authority in their free entry to and passage over it for any lawful purpose."

Counsel for Pursuer (Appellant) - Constable, K.C.-D. P. Fleming. AgentsCarment, Wedderburn & Watson, W.S.

Counsel for Defender (Respondent)--Chree -MacRobert. Agent-J. A. Kessen, S.S. C.

Building

Friday, December 23.

FIRST DIVISION.

J. SPEIRS & COMPANY v. CENTRAL BUILDING COMPANY, LIMITED. Company--Winding-up Order--Debt under Fifty Pounds-No Assets for Order to Operate upon other than Heritage Fully Bonded Companies (Consolidation) Scotland Act 1908 (8 Edw. VII, cap. 69), secs. 129 (5), 130 (1) and (3), and 141.

The Companies (Consolidation) Act 1908 enacts-Section 129-" A company may be wound up by the Court... (5) if the company is unable to pay its debts.. Section 130-"A company shall be deemed to be unable to pay its debts (1) if a creditor. . . to whom the company is indebted in a sum exceeding fifty pounds then due, has served on the company... a demand under his hand requiring the company to pay the sum so due, and the company has for three weeks thereafter neglected to pay the sum.. ..; (3) if, in Scotland, the induciæ of a charge for payment on an extract decree. have expired without payment being made." Section 141-"On hearing the petition the Court

shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets."

Creditors to the amount of £40 obtained decree for that sum against a limited company and taking extract charged thereon. The company paid £32. After some months the creditors presented a petition for the winding-up of the company. The company opposed the granting of the order on the grounds (1) that the petitioners would gain nothing as the sole assets consisted of heritage bonded to its full value, and (2) that the debt was under £50.

The Court granted the order, holding that the first objection was immaterial in view of section 141, and that the limitation to debts of £50 in section 130, sub-sec. 1, did not apply to subsection 3.

J. Speirs & Company, wrights and builders, Hillhead, Glasgow, presented a petition for the winding-up of the Central Building Company, Limited, having its registered office at 157 West George Street, Glasgow.

The petitioners, inter alia, stated-"By the memorandum and articles of association the objects for which the company was formed were declared to be, inter aliaTo carry on in Glasgow or elsewhere in Scotland the business of builders, feuars, property and landowners, dealers and investors in every form of security connected therewith, and any other trade or business subsidiary or auxiliary to such businesses; and also to act as agents, with or without remuneration, for other parties in all or any of the trades and businesses aforesaid.

The petitioners are creditors of the said company. On 6th December 1909, in an action in the Sheriff Court of the county of Lanark at Glasgow, the petitioners obtained decree against the company for the sum of £40, 9s. 6d. sterling, with interest thereon from the 12th day of November 1909. The said decree was extracted on 5th April 1910, and on 26th May 1910 the said company was charged to make payment on the said extract decree within seven free days of the date of the said charge. The said extract decree, with charge appended, is produced herewith. On 7th June 1910 £32 was paid to account, but the petitioner has been unable to obtain payment of the balance; the induciæ of the said charge for payment on the said extract decree have accordingly expired without payment being made. Mr William Speirs, a partner of the petitioner's firm, is also a creditor of the company in a debt of about £1500. The company do not dispute this debt, but they do not admit that it is yet payable. The company is in fact unable to pay its debts, and it is just and equitable that it should be wound up by the Court. In these circumstances the petitioners humbly submit that the said company should now be wound up by the Court in terms of the said Act, and an official liquidator or liquidators appointed for that purpose.'

Answers were lodged for the Central Building Company, Limited, which, inter alia, stated "No other creditors are pressing the respondents and the whole of the members of the company, other than the said William Speirs" [a partner of the petitioners], "and of the creditors, other than the said William Speirs and the petitioners, are of opinion that liquidation of the company would not be in the interests of the members or creditors of the company. The company is solvent, but it would be disastrous to all concerned for its assets to be realised by forced sale. Practically the only assets of the respondents consist of heritable properties, over which there are bonds. The petitioners could gain nothing by liquidation as the heritable creditors would control their realisation, and if sold at the present time it is not believed that there would be any reversion for unsecured creditors. In these circumstances the petitioners submit that the petition should be refused."

Argued for the petitioners-(1) It might be that in England there had at one time been a practice of not pronouncing a winding-up order where the debt did not exceed £50-Palmer's Company Precedents, 10th ed., part ii, pp. 50 and 61,-but whether that practice still subsisted or not, at any rate in Scotland there was no such practice, nor was there anything in the Companies Consolidation Act 1908 (8 Edw. VII, cap. 69), requiring as a general condition of a company being deemed insolvent that the debts it had failed to pay must amount to £50. It was true that failure to that amount was a requisite of sub-section 1 of section 130 of the Act, but it was not a requisite of sub-section 3. (2) Even assuming that