All these other Dec. 17, 1912. Prevention of series of bequests in favour of other charities. charities are Scottish, and there are no bequests in favour of any Nasymth's English charities. The bequest in question is preceded by three Trustees v. bequests and succeeded by four bequests, all in favour of Scottish National charities. In the year 1909 the attention of the testator was particu- Society for larly drawn to the operations of the claimant Society by a case of Cruelty to cruelty to children which occurred on his own estate of Middlebank, Children. and in which he was interested. The case was taken up by the claimant Society, and had the accused not pleaded guilty, the testator's gamekeeper and gardener were to have been witnesses for the prosecution. It is believed and averred that the testator then formed a favourable opinion of the charitable work carried on by the claimants, and that the legacy now in dispute was designed by him to assist in the furtherance of their work." On 17th January 1912 the Lord Ordinary (Hunter), after hearing counsel in the Procedure-roll, repelled the claim of the National Society, and ranked and preferred the claimants the Scottish Society to the fund in medio.* * " OPINION.—The late Mr Alexander Hogg Nasmyth of Middlebank died on 3rd June 1911 leaving a trust-disposition and settlement, in which, inter alia, he directed payment by his trustees of a legacy in these terms:'To the National Society for the Prevention of Cruelty to Children Five hundred pounds, free of legacy or other Government duty and other charges.' In the present action of multiplepoinding that legacy is claimed by two societies, The National Society for the Prevention of Cruelty to Children, incorporated by royal charter, and having its central office in London, and The Scottish National Society for the Prevention of Cruelty to Children, 137 Princes Street, Edinburgh. "The claimants each asked for a finding in their favour without inquiry, but the Scottish Society maintained that if against them I ought to allow them a proof of certain averments. It appears to me, however, that all the material facts averred are either made matter of admission as after stated, or that they are not of such a character that I could competently allow them to be proved. Neither claimant says that the testator subscribed to their funds, and, even if it be legitimate to inquire into the testator's intention, I think specific facts must be averred from which an inference of intention may be drawn. What the Court has a right to ascertain is, as the Lord Chancellor (Lord Cairns) said in the case of Charter v. Charter, L. R., 7 H. L. 364, at p. 377,-'All the facts which were known to the testator at the time he made his will, and thus to place itself in the testator's position in order to ascertain the bearing and application of the language which he uses.' "The National Society were, it seems, incorporated under their name in Dec. 17, 1912. Nasmyth's Prevention of The claimants the National Society reclaimed, and the case was heard before the Second Division (without Lord Dundas) on 17th December 1912. Argued for the reclaimers;-There was no ambiguity in the will. These claimants were correctly named and designed therein, and the Scottish Society was not. The Lord Ordinary was wrong in treating the word "National" as descriptive; it was spelt with a capital letter, and was clearly meant to be nothing more than part of the name. In such circumstances extrinsic evidence of the testator's intention was inadmissible. These claimants were therefore entitled to be ranked and preferred to the legacy de plano. Argued for the claimants the Scottish Society;-The Lord Ordinary was right in holding that, in a Scottish will, "National" meant "Scottish." If, however, there was any ambiguity about the designation, a proof should be allowed to ascertain in what sense it was used by the testator.2 LORD JUSTICE-CLERK.-The Court is of opinion that it would hardly be safe to affirm the Lord Ordinary's interlocutor without inquiry. The case is not sufficiently clear, although, so far as I can see at present, it is extremely probable that the testator was referring to the Scottish National Society for the Prevention of Cruelty to Children. There must be some inquiry, because we are here dealing with a word which is unquestionably ambiguous, the word "National"; and evidence is necessary to show in what sense it was used by this testator. LORD SALVESEN and LORD GUTHRIE concurred. THE COURT recalled the interlocutor of the Lord Ordinary, and allowed the claimants a proof of their averments. A. C. D. VERT, S. S.C.-BRUCE, KERR, & BURNS, W.S.-R. C. GRAY, S. S. C.-Agents. 'Scottish' neither adds to nor detracts from the designation. Certain illustrations of this, to which I need not refer, were given in the course of the argument which I heard. These claimants also point out that the will is in Scots form, and that the other charities benefited are all Scottish. These circumstances might, of themselves, have been insufficient to justify my finding in favour of the Scottish Society. They have, however, to be taken in conjunction with the fact that the other Society does no charitable work in Scotland; and that the Scottish Society was for a period of nine years prior to 1907 known as The National Society for the Prevention of Cruelty to Children (Scottish Branch). The importance of the latter circumstance is, if anything, increased on the assumption that the National Society is right in stating that the testator's will of 1911 is a verbatim copy of an earlier will made by him in 1906. On the whole, I think that there is sufficient to justify me in preferring the claim of the Scottish National Society for the Prevention of Cruelty to Children to the fund, and I shall accordingly do so." 1 Charter v. Charter, (1874) L. R., 7 H. L. 364, per Lord Hatherley, at p. 376. 2 Charter v. Charter, L. R., 7 H. L. 364; Wedderspoon v. Thomson's Trustees, (1824) 3 S. 396; Scottish Missionary Society v. Home Mission Committee, (1858) 20 D. 634; Jarman on Wills (6th ed.), vol. 1, pp. 513, 518. MRS EMMA MARY BROWN OR MEACHER, Pursuer (Respondent). M'Lennan, K.C.-T. G. Robertson. No. 59. PHILIP LAWRENCE KINGTON BLAIR-OLIPHANT, Defender (Reclaimer). Dec. 17, 1912. -Macphail, K.C.-Hamilton. Meacher v. Property Title to Heritage-Inland loch-Riparian proprietors-Prior Oliphant. title to lands with parts and pertinents—Subsequent express title to loch— Prescription-Exclusive possession. In the case of a grant of lands abutting on an inland loch, with parts and pertinents, there is a presumption that the grantee has a joint right of property in the loch, along with the other proprietor or proprietors whose lands abut upon it. This presumption will not be prejudiced by a subsequent express grant of the loch to another, unless that grant is followed for the prescriptive period by such exclusive possession as would be required by law for the establishment of a new and adverse right in the possessor; any lesser degree of possession, such as might be admissible for the purpose of explaining the limits of a grant or conveyance in a question with its author, being insufficient. Evidence which was held (rev. judgment of Lord Guthrie) to be insufficient to establish exclusive possession of an inland loch. Property-Title to heritage-Bounding title-Property described as lying within parish-Proof of parochial boundaries-Plans and Ordnance Survey maps. In an action between two landed proprietors as to the ownership of a loch the pursuer contended that the defender was excluded from the loch by the fact that the latter's estate was described in his titles as lying within the parish of Blairgowrie, and that the loch lay outwith the parish boundaries. Evidence on which it was held that the pursuer had failed to prove that the loch lay outwith the parish boundaries. Observations (1) on the evidence required to prove parish boundaries, and (2) on the value of plans and Ordnance Survey maps as evidence. Prescription-Positive-Admissibility of referring to titles prior to title forming basis of prescription. In a question of prescription it is not permissible to refer to titles prior to the title or series of titles which forms the basis of the prescription for the purpose of explaining away, or altering, or qualifying the investiture secured by prescription. ON 14th November 1910 Mrs Emma Mary Brown or Meacher, EXTRA heiress of entail in possession of the lands and estate of Marlee and DIVISION. Lord Guthrie. Balcairn, in the parish of Kinloch, and county of Perth, brought an action against Captain Philip Lawrence Kington Blair-Oliphant, the owner of Ardblair, in the parish of Blairgowrie and county of Perth, for declarator" that the pursuer has, under her titles, the sole and exclusive right to the Fingask Loch, in the county of Perth, including the solum thereof, and to the fishings thereof, together with the sole and exclusive right and privilege of using boats, nets, and rods, and fishing in and shooting from the said loch, and generally of exercising all rights of property in connection therewith, and that the defender has no right of property or servitude or other right whatever except the servitude of watering cattle or other bestial in the said loch or * * The words in italics were added by amendment at the conclusion of the hearing on evidence in the Outer House. Meacher v. Dec. 17, 1912. fishings or shootings and no privilege of using boats or fishing in or shooting from the said loch in any manner of way; and separatim, that the pursuer and her predecessors and authors have for time. immemorial, or for forty years, been in the exclusive enjoyment and possession under their titles, of the said Fingask Loch, and the fishings and shootings thereof, including all the privileges connected therewith And further, the defender ought and should be interdicted, prohibited, and discharged by decree foresaid from placing or using boats on the said loch, and from entering or trespassing upon the same, or passing on to or over the solum thereof, and from fishing in the said loch, either from the banks or from boats or by means of wading or in any other way, and from shooting from the said loch, and from, in any way, interfering with the pursuer's peaceable possession of the said loch and fishings and shootings in all time coming." Fingask Loch is a narrow inland loch wholly surrounded by the lands of the pursuer and defender, Marlee, the estate of the pursuer, forming its western boundary, and Ardblair, the estate of the defender, forming its eastern boundary. The oldest title with which the pursuer could connect herself by progress was a Crown charter of July 1764, of "Totas et integras villam et terras de Kinloch [the old name for Marlee] comprehendentes terras aliaque subscripta vizt., . necnon tres lacus One of the et piscationes dictarum terrarum de Kinloch. cum libero introitu et exitu ad dictos lacus." This reference to Shadouhalfe never afterwards appeared in the progress of titles. From 1721 downwards the lands of Ardblair were described in all the titles as lying within the parish of Blairgowrie. There were also extant other titles of earlier dates, with which, however, the parties could not connect themselves. The earliest of these relating to the defender's lands was a charter by William de Haya confirmed by the Crown, of 1423, the earliest relating to the pursuer's lands a Crown charter of 1541. The pursuer averred, inter alia ;-(Cond. 6) "Under her said title the pursuer has the sole and exclusive right to and in the said Fingask Loch, including the solum, and to the fishings and shootings thereof of every description; and she has the sole right and privilege of using boats on the said loch, and of fishing therein and shooting therefrom." (Cond. 7) "In virtue of their titles the pursuer and her authors have for time immemorial, or at least for forty years, enjoyed exclusive possession of the said loch and fishings and shootings, and uninterruptedly exercised the said privileges connected therewith. In particular they, and their tenants with their permission, have for the above period kept boats upon the said loch, and used the same without interruption for fishing and shooting over the whole of the loch, including those portions of it lying ex adverso of the defender's A lands. In or about the year 1890 the pursuer learned, as was the Dec. 17, 1912. fact, that one of the defender's tenants named Falconer, had put a Meacher v. boat on the loch. She thereupon ordered him to take his boat off Blairthe loch, and he did so in obedience to her orders. The pursuer has Oliphant. been in the habit of letting the sporting rights on certain parts of her lands to the defender. The last lease was granted in 1904 for five years from 1st March 1904, and includes her sporting rights on the said loch. Annexed to the said lease, and signed by both the pursuer and the defender, there is a plan showing the said loch as lying wholly within the lands and estate of the pursuer. For many years, ending about 1860, the pursuer's authors regularly dug marl from the solum of the said loch, and either used or sold it as manure. regular and substantial income was derived by the pursuer's authors from such sales of marl dug from the said loch. Marl digging in the said loch was practised only by the pursuer's authors, who asserted and enjoyed the exclusive right thereto, and exercised it in the knowledge and with the consent and acquiescence of the defender or his authors. In particular the pursuer's authors and they alone dug marl at points in the loch east of a straight line drawn across the loch from north to south connecting the eastmost point of their lands on the north shore of the loch with the eastmost point of their lands on the south shore. This they did unchallenged and in the knowledge of the defender or his authors, both ex adverso of their own lands and ex adverso of the defender's lands. The defender and his authors have thus acquiesced in the claim of the pursuer and her authors to the sole and exclusive rights in and to the said loch." In a statement of facts the defender averred, inter alia;-(Stat. 7) "The defender and his authors have at all times, and for far more than the prescriptive period, possessed the said loch as part of the said lands of Ardblair, and exercised the rights of riparian proprietors therein. In particular, the defender's authors, and those in their right have dug and removed marl therefrom and jointly with the pursuer's authors, have granted leases of the fishing and shooting in and upon the said loch. Further, the defender himself, prior to the granting of the leases mentioned in article 7 of the pursuer's condescendence, made use of the said loch for the purposes of fishing and shooting. The tenants of the defender and his authors have constantly exercised the right of fishing in the said loch and of keeping boats thereon, and have watered their cattle at the loch and pastured their cattle down to the water's edge below the flood mark, all with the knowledge and authority of the defender and his authors, and without challenge or interference on the part of the pursuer or her authors." The pursuer pleaded, inter alia;—(1) The pursuer having, in virtue of her titles, the exclusive rights to the Fingask Loch, and to the fishings and shootings thereof, and the defender having challenged said right, decree of declarator should be granted as craved. (2) Separatim, the pursuer and her authors having for time immemorial, or at least for forty years, enjoyed the exclusive possession of the said loch and fishings and shootings, upon an express grant thereof in their titles, the pursuer is now exclusively in right of the said loch and fishings and shootings, and the defender having challenged said right, decree of declarator should be granted as craved. (5) The defender's title being a bounding one, and the said loch being situated beyond the boundaries of his lands, the defences should be repelled. |