It was a high profile court case with intriguing adversaries - on one side a powerful lord attempting to ban his neighbours from two Borders lochs to secure him exclusive use, and on the other a landowner's widow determined to frustrate him by taking the three-year-long dispute all the way to the House of Lords.
The drama was unfolding just over 150 years ago after the 10th Lord Napier laid claim to ownership of St. Mary's Loch and the neighbouring Loch of the Lowes in rural Selkirkshire. He cited a Royal charter of 1607 which had, he said, granted his ancestors the lands beneath the lakes in perpetuity.
But he reckoned without the spirited Anne Scott, of Rodono, who took up the legal cudgels after her husband John died while the case was proceeding.
Judges in two divisions of Scotland's Court of Session found in favour of Lord Napier. Mrs Scott and her husband before her claimed a joint-right of property with the lochs' other riparian proprietor, but their arguments were dismissed.
One of the witnesses called to give evidence at the original 1866 hearing was 83-year-old Tibbie Shiel, whose inn which bears her name still stands by the shore of the two lochs. Her hostelry was visited by the likes of Sir Walter Scott and William Wordsworth while James Hogg, the Ettrick Shepherd, lived close by.
The elderly Tibbie
Shiel - she died in 1878, aged 95 - told the court she had been employed to watch over the
defender's [Lord Napier] boat, and otherwise to look after his interests in a cottage on the
loch,
However, as the Lord Chancellor observed in the House of Lords judgement which overturned the two previous rulings she did not speak of any instructions given to her to interfere with
the uses of the lake by the boats of other persons.
"She produces a written
order given to her by the late Lord Napier (the 10th Lord's father), not to allow any one to take his
boat without a written order from him", added the judge. But that was all.
The late Mr Scott, in his original submission to the Court of Session asked for a declaration that he "has, together with the other proprietors
whose lands lie around and border on the same, a joint right or common property
in the loch called St Mary's Loch, and the loch called the Loch of the Lowes,
and a joint right of using boats, fowling, fishing, floating timber, and exercising
all other rights in or over the said lochs, or either of them, and that he [Lord Napier] be
ordained to desist from molesting and interrupting the pursuer in the exercise
of his right."
The other riparian owners at the time included the Earl of Wemyss and the Duke of Buccleuch.
In delivering his Opinion the Lord Chancellor stated: "He does not
claim simply equal rights with the pursuers, as a riparian proprietor, but claims
to be owner by distinct original grant of the lakes themselves.
"Now, certainly, as to exclusive possession, it appears to me that no
evidence whatever has been produced by Lord Napier sufficient to establish that
right as against the prima facie right of the pursuer and of the other riparian
proprietors.
"On
the whole, therefore without entering into all the details of the
evidence, I do not think that Lord Napier has proved (that which for reasons I
have alleged I think him bound to prove) any right to exclude the pursuer."
Lord Chelmsford, another of the law lords who considered the appeal by Mrs Scott was equally dismissive of Lord Napier's sweeping claims.
He said: "I do not find in the evidence for the respondent [Lord Napier] proof of the exercise of
rights over the lochs by him and his predecessors, or his interference with
other riparian proprietors or
their tenants which unequivocally establish his title to the sole and separate
use and possession of the lochs, or which are not consistent with his having
merely a common property in them with the other proprietors. as there is not a
single act proved which is not consistent with the respondent being entitled
merely in common with other proprietors, his answer to the appellant's case
entirely failed; and therefore differing, as I am compelled to do, with the
majority of the Judges of the First Division, I think the interlocutors (decisions) appealed from ought to be reversed."
The 10th Lord Napier who was also to become the 1st Baron Ettrick had a distinguished career as a diplomat, serving as British Minister to the United States of America (1857-1859) and Governor of Madras (1866-1872). He died in Florence, Italy in 1898, aged 79.
John Scott had Rodono House built as a shooting lodge in 1866 having acquired the estate in 1860. He donated the ground on which James Hogg's statue was erected on a site overlooking the loch.
Anne Scott sold Rodono in 1873. Four years later she donated £1,200 - equivalent to £160,000 in today's values - for the construction of an Anglican church to honour the memory of her husband in the spa town of Marienbad, Bohemia (now Czech Republic).
No comments:
Post a Comment