Outer House case concerning a boundary dispute relating to two properties on Sixth Street in Newtongrange.  Mr Smith (the owner of  no. 77) claimed that Mr and Mrs Crombie (the owners of no. 75) had removed a fence which divided the two rear gardens and replaced it with an extension and another fence encroaching onto Mr Smith’s  land. He sought removal of the extension and fence and their replacement with a new fence.

The fence had originally been erected to replace a boundary hedge in 1986 following an agreement between Mr Smith and the previous owners of no. 75. However, on the evidence, Lord Matthew found that the original fence had encroached onto no. 75.  Although Mr Smith had possessed the property bounded by the original fence for at least the prescriptive period, the fence was clearly outwith the boundary shown on Mr Smith’s title. As there was insufficient ambiguity, prescription could not run.

Lord Mathew also indicated that, if he had found in favour of Mr Smith, he would not have ordered demolition of the extension as, to do so, would have been disproportionate given the very limited nature of the encroachment. However, he would have ordered demolition of the new fence.

The full judgement is available from Scottish Courts here

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