1876 November 16

Note: These pages are badly damaged by fire and water and are in a very delicate condition. They have been transcribed as well as possible

At Dundee the sixteenthDay of November Eight-

teen hundred and seventyFour

In the ActionPresently depending in the

Dean of Guild Court ofDundee at he instance of

Alexander Keiller Con-fectioner Dundee against

Thomas Buchan Auctioneerand Valuator Dundee

In presence of David GordonStewart Solicitor Dundee Clerk

of the said Guild Court andCommissioner appointed for the tak-

ing the Proof allowed to partiesAlso in presence of the Petitionerand Respondent and the Agents

of both parties

Compeared William Philip Junior Builder and Wright aged forty in Dundee who being solemnly sworn and examined as a Witness for the Petitioner: depones as follows. I was employed by the Petitioner to prepare a Plan of the property at the head of Campbell’s Close and partly adjoining Rankine's Court. Both this Close & Court led up from the High Street. At the top of Campbell’s Close there is a small Court belonging to the Petitioner forming part of the property described in the Petition. I know the Respondents property adjoining the Entry to the Court through the Respondents property Shewn Number 6 th of Process. This is the Plan referred to as made by me. The Court is surrounded by buildings on all sides. The dark colour on the Plan next Campbell’s Close on the south side of the Court represents the Respondents back wall of his property. The Petitioners building presently erected are indicated by dotted lines in said Plan. The westmost being one storey in height and the eastmost building (word burnt) and attics in height (word burnt)ently both these buildings are much older than the Respondents building especially the three storey building. The three storey building fronts the said Court. There are three fireplaces in the south gable wall pf the three storey building next the Respondents that is one in each of the three storeys except the Attic flat. The vent of the lowest storey is shewn on the said ground plan. The south gable of the three storey bulldog and the back wall of the Respondents tenement are in one and these three vents go up the heart of that wall to the Chimney head raised on the top of that wall. These are the only vents in that Chimney head. There are no other Chimneys in that back wall. I have examined the three storey building and think it possible the gable wall of the ground storey may be older than the rest of it but as there is a change at the second storey I think the rest of the gable as it now stands may have been built at the same time with the Respondents (word burnt) wall. I also (word burnt) the foot of the three storey building a (word burnt) back wall and distant above four feet west from Campbell’s Close. If that space had not been there the rainwater from the north side of the roof of the Respondents tenement would have fallen upon the Petitioners property. The Petitioners proposed new building does not in the meantime interfere with the spout belonging to the Respondent on said back wall but it is intended to remove the Conductor Eastward to the west side of Campbell’s Close as shewn on said plan. In November 1873 I was employed by the petitioner to put a sliding door at the north end of Campbell’s Close which shuts in his property. The fastenings are on the Petitioners side of the door which remains the same still.

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Interrogated for the Respondent. Depones: The height of the wall of the Respondent’s property on both sides of Campbell’s Close is about forty feet but I cannot speak to a foot or two. The height (word burnt) of the said toofall at the low(word burnt) is about Eight or nine feet.The height of the said three storey building at the Eaves is about twenty four feet. I have known the three storey building for the last five years but I have no recollection of it before it became the Petitioners property. When I first knew the building the two upper flats & attics were used as Dwelling houses and the lower flat as a Cellar the tenants had access at that time by Campbell’s Close. I knew the toofall first when the Petitioner became Owner about five years ago. It was then occupied by Mrs Barrie as a ginger beer Manufactory who I think was the Tenant of the previous owner whose name I do not know as well as of the Petitioner. Mrs Barry got access to the toofall from the Court and from Campbell’s Close into the Court. The said Court is paved and has been so for at least five years. I cannot tell whether the flag stones have been ten years there or how long they have been there. The three storey building is one hundred years old (word burnt) but it may be two hundred. I cannot guess within a ten years of the (word burnt) of the toofall, I make the Respondents tenement about sixty or seventy years old, at all events less than one hundred. There is something in the style and character of the building which indicates their age. The style of the rybats is different. They are different in the check and in the margin. The old style Rybat is rounded or splayed which the new style is square in parts.Interrogated: Do you know a north section of Campbell’s Close beyond the Court objected for the Petitioner. The manifest intention of this Interrogatory is to attempt to prove that the Court above mentioned is a Public Court or part of the public Close called Campbell’s Close but no averment to this effect has been made by the Respondent in the Record and the Petitioner therefore objects to the question and the whole line of examination. To which it was answered for the Respondent that it was part of his Case that (word burnt) had access to the shutter and consequently by the Court which is practically a prolongation of Campbell’s Close.The Commissioner having considered the injections in respect that the only averments of the Respondents on record is that he has servitude of access to and from the back of his property to open and shut and do what is otherwise necessary to and with the shutter disallows the question to be put.

D. Gordon Stewart Com.Against which Deliverance the Respondent appeals to the Court.

A. Hendry Pror

Depones I saw a Shutter on the north wall of the Respondents tenement farther in than the Conductor. I think but I did not examine it minutely. I cannot say that I have known the shutter as long as I have known the Property but it was more than a year ago. I cannot say that it was there when I renewed the roof. My knowledge of the shutter is such that I cannot say how old it was but it would be some years old. It was there a year ago when the sliding door was put up but it has been moved since. That sliding door excludes all from the Court except the Petitioner and his people. There are two sets of hinges still there that is I mean the remains of two sets are here.The one set older than the other and the new set has held the shutters now removed. There is a fashion in hinges; both sets are in the same fashion. I cannot give any opinion as to the year of the sets in question. I cannot say that the hinges indicate the existence of a shutter there for fifteen years nor can I say that the period might be ten years either, I cannot tell the age of the hinges from their present appearance. There is a spout that goes along the outside of the back wall of the Respondents tenement which runs long the outside of the Chimney head. The spout does not indicate an Eavesdrop to the Respondents because there is another below it (two words burnt) the Eavesdrop below the Respondent for about fourteen feet between the toofall and the three storey building under deduction of the Eaves drop applicable to their buildings. There are slanting Conductors on the outside of the Respondents north wall at the west leading from the Dwelling house to the Conductor in the Court. They are at the westmost windows of the Respondents tenement so far as these Conductors run East and west they are to be Closed in by the Petitioners proposed building. The effect would be that these Conductors

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could not be got at externally for repair or otherwise. The plan shews that the window of which it has shutters is to be closed up, there are projecting window sills in the back wall. I think there are three windows to the west of Campbell’s Close but I did not count them exclusive of the window; before the shutters was there is only one window above Petitioners three storey building but I do not know whether it has a projecting sill. I do not know whether there is any drain to the north of the sliding door. The sliding door is to the north of the present Conductor. I do not know where the drain is with reference to the Conductor. My opinion is that the Respondents tenement was built to suit the requirements of the three storey building. The cementing would be done after the new wall erected in place of what had originally been the south wall of the toofall had been built with the new wall in the foresaid back wall of the Respondents tenement. It may be that the toofall had an independent wall of its own on the south. It had been probably the same as in the case of the three storey building. There is no provision for vent in the said back wall in connection with the toofall because the nature of the Building did not require it. I consider the back wall at the toofall is mutual. There is no evidence of the roof of the toofall having been raggled to that wall and I did not do so. I cannot recollect whether warrant was got from the Dean of Guild when the roof (two words burnt). into warrant was got from the Dean for the erection of the sliding door. I have seen some cases where Conductors leading to drain from Kitchens have been placed outside mutual walls. There was no Eaves drop and windows in the Cases. I cannot at present recall any instance where the wall was mutual and these three things existed. It is not invariable within the Police boundary of Dundee to carry off rain water by spout.Re-interrogated for the Petitioner Deponed that the Yellow colour on the ground plan indicate the proposed new walls, there is a framework above the stair of the three storey building plastered over which indicates an old building. The spout referred to as placed outside the Chimney wall is part of the spout which I originally mentioned and commences at the East end of he rave of the Petitioners Chimney head and runs the whole length of his back wall; the slanted conductors are for carrying off water from the Kitchen to the drain. I do not know when these Conductors were put up. The posts of the shutter doors are close to said back wall. And all that I have before deponed to is truth as I shall answer to God.

Wm. PhilipD. Gordon Stewart

Alexander Duncan Builder Dundee who being solemnly sworn and examined as a Witness for the Petitioner Depones: I am thirty nine years of age last birthday and was bred a Mason. I have examined the Petitioners premises at the head of Campbell’s Close. There is a small Court surrounded by buildings at the head of that Close with an outlet to the south. He outlet (part word burnt)tioned & is Campbell’s Close and has a sliding door, shuttering in the Court from the Close with fastening on the (word burnt) north side of the door. On the East side of the Court there is on old building of three storeys and Cellars and on the west end there is a toofall of one storey. The watershed of the toofall is easterly to the Court. On the south side of that Court here is a large four storey tenement which I understood belongs to the Respondent. I examined the interior of the old three storey building and found three vents in the south end of it. These vents are led up through the centre of the back wall to the Chimney head which back wall is that of the Respondents tenement. I am convinced there are no other vents in said Chimney head. I examined the Southmost wall of the three storey building and I think part of that wall has formed part of the original wall of the three storey building. I mean the centre is part that is where the vents are and up pass far as the ridge of the roof of the old house. The roof referred to is covered with grey slates and go as far south as the (word burnt) wall of the four storey tenement (two words burnt) raggled into that wall. I (two words burnt) Conductor in the angle. I did not measure the thickness of the wall. The wall varies in thickness. I think the wall is thickest at the stooling and the thinness where the stair case of the four storey tenement is. In old buildings the walls were thickest where the vents were placed. There is no appearance of the wall being mutual excepting the vents. I have been in business on my own account for from six to eight years.Interrogated for the Petitioner. Depones: the back wall of the four storey tenement is the Southmost wall of the three storey building. The said back wall is also used as the south

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gable wall of the toofall. If the spout was removed from the four storey tenement the rain water would fall both on the three storey building and the toofall on the Petitioners property.Interrogated for the Respondent. Depones: I cannot yet express an opinion (word burnt) the gable at the top is made (three words burnt) the Respondent has an Eavesdrop (two words burnt) windows overlooking the toofall. He has also slanting Conductors outside said wall from the Kitchen leading to the rain water Conductor before mentioned and to the drain. The effect of the Petitioners operations would be to shut up the Respondents windows and close in the slanting Conductors. The rain water from the four storey tenement is conducted from the foot by a Conductor into the Court. If there were no spout on said tenement there would be partly an Eavesdrop on the Court which is paved. I never saw the Court until last week when I was there twice. I heard nothing of shutter hinges and I do not know anything of them.Re-interrogated for the Petitioner. Depones the plan does oat show any interference with the Respondent spout as the buildings do not reach so high. And all that I have before deponed is truth as I shall answer to God.

Alexander DuncanD. Gordon Stewart Comr.

Compeared and examined Adam Will Builder and Contractor in Dundee who being solemnly sworn and Examined as a Witness for the Petitioner. Depones: My age is fifth three years past and I have been in business for twenty five years. I have carefully examined the Petitioners and Respondents property at the head of Campbell’s Close. There is a small Court the Petitioners property is on three sides of the Court and the Respondents on the south side. On the east side of the Court there is very old building of three stories and attics which I have been through, I found three vents starting from the ground and the two storeys above. The vents go up through the gable which is the back wall of the Respondent’s tenement and are carried up a Chimney head resting upon that wall. There are no other vents in the wall excepting those referred to, I measured the depth of the vents but do not recollect the measurement (word burnt) south wall of the three storey building (two words burnt) tenement. There is only one wall at lowest storey appeared to be different building from the rest of the wall and appeared to be older. The roof of the three storey building is of grey slates raggelled into the said back wall of the four storey tenement, the rain water from the three storey building would fall into the Close close to said Wall, there is a rain water Conductor in the angle fastened partly to the west wall of the three storey building and partly to said back wall. The toofall slopes in to the Court and is fastened to said back wall by plaster. The rain water from the roof of the toofall falls upon the Court all the way up to said back wall. There is a spout all the way along said back wall from east to west past the Chimney head. If that spout were away the rain water from Respondents tenement would fall on the Petitioners three storey building toofall and in the Court. I am of opinion that the said back wall is like a mutual wall. I have no doubt where the three (three words burnt)ding is of this being so. The toofall has not the same claim on the wall on the three storey building. The proposed building does not interfere with the spout on the Respondents back wall. I have no doubt that the three storey building is older than the four storey tenement but I could not say about the toofall which however seems older than the four storey tenement.Interrogated for the Respondent. Depones: It is common to find toofalls leant upon other buildings by toleration. If there were nothing else I could not say that such leaning would give right. I have been into the Court before the Petitioner acquired it. I had no difficulty in getting access to it. There is a sliding door now erected which I think is not an old one. I saw marks of hinges on a window in said back wall which looks into the said Court on the ground floor. It looks like it as if there had been a (word burnt) there for a very long time say ten years. I do not know whether there ever was a shutter there. The shutter could be perfectly well opened from the inside of the house but the natural way was by the Close and Court. It could be fastened upon the outside. The three storey building appears to have been built in the first place as a separate house of itself before the four storey tenement was built. The three storey building is perfect as to vents as far as its height goes. If that of the old wall had been taken down and the four storey back wall built upon it and the vents carried up I do not think the three storey wall has been

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underbuilt. The lower fireplace looks as if it had originally been there. There is no stooling there. There is a little projection in the flats above to the extent of a few inches but though I measured it I do not recollect the measurement. I cannot say when I measured it. I cannot say that I ever saw a mutual gable with a spout (two words burnt) it. There are a number of (two words burnt) in the back wall. There is a window in the back wall above the three storey tenement. I do not recollect ever seeing a mutual wall with windows in it.Re-interrogated for the Petitioner. Depones: I went there three or four times to see the subjects which I think would be the week before last. And all that I have before deponed is truth as I shall answer to God.

Adam WillD. Gordon Stewart Comr.

At Dundee the twentythird day of NovemberEighteen hundred and

Seventy fourIn the Action

Presently depending inthe Dean of Guild Court

of Dundee at the instanceof Alexander Keiller

Confectioner Dundee Against Thomas BuchanAuctioneer and Valuator

DundeeIn presence of David Gordon

Stewart Solicitor Dundee Clerk of the said Guild Court and Com-

missioer appointed for takingthe Proof allowed the parties

Also in presence of the Petitionersand Respondent and the Agents

for both parties

Compeared George Barrie Ginger Beer Manufacturer Dundee who being solemnly sword and examined as a Witness for the Petitioner. Depones: My age is twenty eight years. I know s Property at the head of Campbell’s Close. I also know the there storey building on the east side of the Court there. There are buildings on each side of that Court. My (word burnt) grandfather Peter Barrie Ginger Beer manufacturer resided in said (word burnt) building as long as I can remember until his death which happened when I was twelve years age. I also resided in said three storey building since I was sixteen of eighteen months old until about a year ago. I lived in the flat immediately above the ground storey. My Grandfather also occupied one half of the ground storey the south half and after his death my Mother got the premises and carried on his business there. Mt Grandfather was Tenant under the Petitioner in these premises and My Mother became such when I succeeded him. There is a toofall on the west side of said Court which was also tenanted by my Grandfather under the Petitioner and afterwards by my mother. The only change upon the toofall that I recollect is that the roof was taken off and a new one put on after I left and a door and window next the Court built up and a door opened on the back wall communicating with the (word burnt) bakehouse. A door immediately (word burnt) the north of the toofall was opened from the Petitioners bakehouse into the Court as shewn on the plan No 6 in Process there are vents in the south wall of the three storey building in the ground storey and in each of the two stories immediately above which were used all the time I resided in the Property. These vents go up the wall of the three storey property immediately to the south of the Court. I think the wall in which these vents are is the original or old wall of the three storey building that if the extent of the two lowest storeys. The Respondents back wall appears to be built on the top of the old wall of the three storey building. There were stone slates on the three storey building

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coming close up to the Respondents back wall which have been there during all my recollection. The roof or the toofall on the south is plastered to the Respondents tenement.Interrogated for the Respondent. Depones: I do not remember ever having been asked (two words burnt) an opinion as to whether a wall (two words burnt)do until he present occasion. I was requested to look at the wall in question particularly and have done so the week before last. One of the Petitioner men accompanied me. I examined the fire place and the stoolings. It was on all three flats. I only measured in the two lower storeys and the thickness appeared to be the same. The fire places that I measured were nineteen inches in depth. I did not measure the thickness of the wall but only the fire places. I cannot tell whether the back wall of the Respondents tenement is or is not thicker above the height or roof of the three storey building than below. My reason for thinking that he wall of the three storey building was older than that of the Respondents is that it took on the paint better. I think that the stoolings on the old part of the wall and that the sides are newer. There is no other Stoolings shewn on the plan. The stooling (two words burnt) measure from east to west from the (word burnt) ten feet. I cannot tell what the length of the wall at each side of the stooling may be. I can give no idea of the size of the house inside never having measured it. The toofall was occupied as a stable during my grandfather’s time but I cannot say for how many years. My Mother was Tenant in the lower flat of the Respondents tenement of a Cellar for four or five years which was used for making aerated water but I was so young that I do not recollect when the tenancy began. The tenancy ceased about eighteen months or two years after the Respondent acquired his tenement but I cannot specify any date. During the whole of my Mothers tenancy there was an outside shutter on the window of the ground floor next the toofall on the east side of that window. It swung round over the Court all the breadth of the shutter and it was fastened back to the wall with a bit spring or a nail but I never fastened it back myself. It was tied (two words burnt) from the outside but it was not (two words burnt)tied. It could not tied back from the inside of the house. There was a door in Campbell’s Close from the Cellar occupied by my Mother and they went from that Cellar into the Close and so fastened the Shutter by a nail on the close. It was not necessary to go into the Court to fasten the shutter. I have often seen the shutter closed. It was not always tied back & and I have often seen it shut from the inside. When tied the shutter was closed and pushed round without going into the Court by a person standing in the Close. I have seen Mr Beatt come out and push the shutter in this way, this he did in a passion because he could not shut it from the inside. Mr Beats was tenant of the premises of which this was the window. I have also seen Mr Beatts son David close the shutter by pushing it to from the Close but not in passion. I have seen Mr Beatts son David shutting this shutter and door from the Court. I cannot tell (word burnt)ral and proper way to shut (the shutter. I have found it equally easy to shut the shutter from the Close or the inside of the widow.Interrogated. Have you shut the shutter from the Court?Depones: No not that I remember. I won’t say that I never did shut it from the Court. I do not remember. I have seen the shutter shut from the Court by said David Beatts but I do not remember any other body. When my Mother was tenant the shutter was opened and shut by myself, my brother Peter and several servants vizt: Spalding and Lamb. Lamb resides at top of Murraygate as a bill poster but I do not know Spaldings address.Interrogated: The shutter being tied back which was the simplest way of shutting it going in front of it or pushing it from behind it? Depones: I cannot say.Re-interrogated for the Petitioner. Depones the Stooling already mentioned projected five (or six) inches at the west side of the fireplace (word burnt) ten inches at the other side. I re(member the) five or six inches and the ten inches from the back wall of the Respondents tenement being the wall into which the vents go. The stooling does not appear at the ground flat but is seen in the two flats immediately above the Respondents wall appeared to me to be very shallow in the Kitchen of the storey above the ground of the three storey building as the heat has often been felt by me through from the old building into the Respondents tenement. The Window having the shutter already mentioned was in the Court to the west of Campbell’s Close. The shutters folded back to the Close mouth. The Court is in the same state now as I have known it all along. And all that I have before deponed is truth as I shall answer to God.

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George BarrieD. Gordon Stewart.

Compeared (word burnt) Sturrock Builder in Dundee who being solemnly sworn and examined as a Witness for the Petitioner. Depones I am forty six years of age. I have been eighteen years in business as a Builder in Dundee on my own account and have had experience in buildings. My knowledge of properties both old and new. I have looked at the Petitioners property at the head of Campbell’s Close and have also seen Plan No 6 of Process. The Court shewn on the said plan is surrounded with buildings. The Respondents tenement is on the south side and the Petitioners property on the other three sides. There was an old three storey building on the said side of said Court which I have examined and I have also looked at the Respondents tenement. In my opinion the three storey building is to all appearance much older than the Respondents tenement. The three storey building faces the Court and enters from it. The roof is of old grey slates going close up to the back wall of said tenement but I do not think the slates are raggled into that (two words burnt) Eavesdrop of these slates come up (two words burnt) wall but I did not examine minutely how the slates are joined to said wall but they are plastered to it at all events. I found three vents and fireplaces in the ground flat and two storeys immediately above in the south wall of the three storey building. To all appearance the ground flat appears to be older masonry than the rest of that wall and the next flat also appears older too. I measured the depth of these fireplaces and found them to be as follows vizt: in the ground storey about nineteen inches the wall being flush and no stoolings there in storey immediately above about sixteen inches and the third one about seventeen inches. There are projections in the two flats immediately above the ground storey at the fireplaces. These projections are about five inches on the west side in that ground storey and about ten inches on the other side and in the flat above about eight inches on the (two words burnt) and Eleven inches on the other side. These measurements are reckoned by me from the back wall of the Respondents tenement. These vents are led up into the said back wall of the Respondents tenement which is higher than the ridge of the roof of the three storey building. The back wall of the Respondents tenement appears to have been built upon the south wall of the three storey building. I did not measure the thickness of the said back wall. There is a one storey toofall on the west side of the Court having its roof sloping into the Court. The toofall is about up close to the respondents back wall and the roof is plastered to it. The Eaves of it also the eaves of the three storey building next the Court. The toofall has the appearance of being an older building than the Respondents tenement. I observed a spout running along the Eave of the Respondents tenement next the Court from (word burnt) it end. But for this spout the rainwater from the roof of the Respondents tenement would fall partly on the three storey building partly on the toofall and partly on the Court. There are Windows in the Respondents tenement both in the north and south walls thereof. There are no projecting sills to the Windows facing the Court. There are projecting sills to the windows in the south wall of that tenement.Interrogated for the Respondent. Depones: I did not know these properties particularly before this question in this case arose but have seen them. I have no knowledge of being at the three storey building or at the toofall before they became the Petitioners property. I do not remember whether I got access to these buildings from the Close into the Court without interruption but it is so long since that I do not remember. The Court who opened (word burnt) it recently appeared to (two words burnt) from the Close by a tenoga(word burnt) appears to be a pretty. Depones (two words burnt)mean a good view at the (word burnt) not tell whether it is four months or four years old. I got access recently to the Court from the Petitioners other premises and not through the Close. The dotted lines in the Plan No 6 of Process shews the situation of the old buildings. The plan only shows the north wall of the Respondents tenement which was the only wall which I examined. The north or back wall of the Petitioner tenement is shewn on said Plan which is a ground plan and there is also a section shewing said wall. There is no Stooling inside the Petitioners three storey building. There is an extra thickness on part of the south wall of the three storey building. The part where the extra thickness is, is about Eight feet in extent from east to est. I measured it in the third flat and found this thickness eight feet or thereby from east to west. I measured it at a particular (two words burnt) but the

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surface was irregular (two words burnt). I cannot say to the inches (several words burnt) I mean that the (several words burnt) out in some place. The projection varies in breadth or extent at the different heights of the building but I cannot say how much or whether it varied to the extent of a foot. I do not know any buildings of the same Close and apparently of the same age as the Respondents tenement with projecting window sills in the back wall. I do not know the gate of the Respondents tenement. The back or north wall of the Respondents tenement gets thinner when above the height of the three storey building. I do not think the vents bend when they get up to the thinner wall above the three storey building. I noticed a shutter opening out into the court on the west side of Campbell’s Close. I did not see the shutter opened but in pene(word burnt) shutting it necessarily traversed (word burnt)of the Court.Re-interrogated for the Petitioners. Depones (word burnt) projection is a part of the (word burnt) not a separate building which is raked a stooling. Interrogated for the Respondent. Depones: The wall at both sides of the projection in the second and third flats appear to me to be newer than the centre wall. And all that I have before deponed to is truth as I shall answer to God,

James SturrockD. Gordon Stewart

Compeared Alexander Johnston Architect in Dundee who being solemnly sworn and examined as a Witness for the Petitioner. Depones: I am thirty four years of age and have been in business on my own account as an Architect for six years. I have had considerable experience (two words burnt) that in the same profession also (two words burnt) the Petitioners property at Arches (word burnt) Campbell’s Close. There is a (two words burnt) surrounded by buildings the Respondents tenement being on the south and the Petitioners property on the other three sides. On the East side there is an old three storey building with Attics and on the west side of the Court there is a toofall of one storey having a roof slopping into the Court. I have examined these buildings and consider that the three storey building and the toofall are older buildings than the Respondents tenement. I examined the three storey building and found three vents that is one in each of the three lower storeys in the south wall of that building. The Respondents tenement is higher than the three storey building. I found that these vents were led up the centre of the back wall of the Respondents tenement to the Chimney head resting on that wall. Apparently here are no other vents but these nor along the back (two words burnt) anywhere else. The roof of the three storey building came hard (two words burnt) back wall of the Respondents tenement. The south gable wall of the three storey building is the north or back wall of the Respondents tenement. It appears to me that that back wall had been built upon the old wall of the three storey building. I am of opinion that the wall so far as betwixt the three storey building and the Respondents tenement is mutual at any rate I saw a window or bole in the wall of the Respondents tenement above the three storey building but that does not affect my opinion. I have seen light in the mutual walls taken temporarily of which there is an instance within my knowledge in a tenement in Panmure Street where I was Architect. I also know of another mutual gable with Windows in the Overgate overlooking Wilsons Territorial Church. The roof of the said toofall comes up hard to the said (word burnt) wall of the Respondents tenement and the rain both from the roof of the three storey building and the (two words burnt) falls close to that back wall into the Court. There is a spout running from east to west all the way along the said back wall and but for it rain water from the Respondents tenement would fall upon the three storey building, the toofall and the Court.Interrogated for the Respondent. Depones: There is a break in the south gable of the three storey building. I would not call it a stooling. I don’t know that there is much difference betwixt the brake and a stooling. A stooling is generally of depth sufficient to carry a vent. I see no use for the break. It is ugly. It is not utilised in the lower storey or in the attics for carrying vents. It is utilised for carrying vent in the second and third storeys at present but is of no use unless (two words burnt) greater depth joined (three words burnt) alone is of no use for (two words burnt) vent not having sufficient depth being only nine and (two words burnt) inches of an average depth. I think the brakes forms part of the original wall and do not think it has been adjicted on. From what I saw inside as well as outside there is evidence that the three storey building is older that the Respondents

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tenement. It appears to be to be particularly that the wall in the ground storey was all of the same age. The wall referred to being the south gable of the three storey building. I cannot say whether the brake on the wall on either side is the older. It was papered so that I could not see the wall. The window in the wall in Panmure Street has been tolerated for about two years and in the other case referred to the window appears a century old. I am certain the last case is a mutual gable altho I do not know the proprietors nor have I seen the Titles. There is no spout and no Eavesdrop in the Panmure Street case. There is an eavesdrop or waste spout in the Overgate instance. The adjoining (two words burnt) there has an open Court but (two words burnt) to the Court being formed the adjoining proprietor had a building which was lower than the widows in the gable over which the windows looked. I cannot say whether there was a separate wall taken down when the Wilson Church removed their building and made the Court on the site. The Wilson Church Trustees are proprietors of what is (word burnt) the Court referred to and I do not know to whom the tenement on the west which has the two windows belongs. In do not recollect any instance where there is a mutual gable with an Eavesdrop. I do not know of any such case. I do not know anything about a shutter not having seen one on the west side of the north wall of Respondents tenement. There (word burnt) be a number of windows in the Respondents back wall.Re-interrogated for the Petitioner. Depones: (two words burnt) covered a beam in the (two words burnt) ground floor of the three storey building the end (two words burnt) in the north wall of the Respondents tenement said beam in wall appears being as old as the three storey building.Interrogated for the Respondent. Depones: The beam rests on the old wall on the ground storey now forming the back wall of the Respondents tenement but to what depth I cannot tell. It is (word burnt) when the Brake is that Beam goes. At that place where the beam rests the wall is flush. And all that I have before deponed to is truth as I shall answer to God.

Alex JohnstonD, Gordon Stewart

Compeared Alexander Keiller the Petitioner who being solemnly sworn and interrogated as a Witness for the (two words burnt) Depones: I am fifty three years (two words burnt) I have known the (two words burnt)in question belonging to both parties for well on to forty years. My late father resided with his father of whom I was one in the tenement forming the north side of the Court. The only changes on the Court and the surrounding property since I recollect are the putting on of a new roof (word burnt) the toofall in the Court as mentioned by the preceding Witness William (word burnt) Junior. The shutting up of a window and door in said toofall next the Court, the opening of a door way in the west wall of the toofall leading to the adjoining bakehouse belonging to me and the opening of a door way in the said wall entering to said bakehouse from the Court and the putting up of a sliding doorway shutting off the Court from Campbell’s Close. The alterations to the toofall and the opening of the (word burnt) referred to took place about (two words burnt)ven years ago and the (several words burnt) put up about twelve months (several words burnt) objections were stated to any (several words burnt) works nor were any stated (several words burnt)spondent to the Sliding door until the present question arose. Being shewn No 3 of Process I acquired right to purchase to that Court the buildings surrounding it on the north east and west and the gardens to the Little Meadows behind the northwest house. The purchase was so made in Eighteen hundred and fifty four. I have been in possession of these subjects since without interruptions. I have removed all the tenants from the premises with the exception of my firm in view of the present application for warrant to make new erections. The tenant on the old three storey building on the east side of the Court and the vents in the south gable wall thereof. Being shewn No 9 of Process. Depones: it is fully ten years since the Respondent (word burnt) raised his tenement at the south side (several words burnt) Court. The Respondent during that (word burnt) never disputed my right to it (several words burnt)nor has he claimed a right (several words burnt) any other right in the Court. The back (word burnt) are Windows both in of his tenement wall and south walls. There are fixed next Campbell’s Close in the (pages badly damaged and illegible) From the roof of the adjoining bakehouse to the west part of the Respondents back wall nor do I know

9

that it was done. The Court is paved and prior to Eighteen hundred and fifth four there was free access to the Court but to the tenants only or to those who had business with them. I know the window which had the shutter and I have seen it frequently opened but not from the Court. I can not say that I have ever seen it shut from the Court. I have often it shut and opened from the inside. I cannot say that I have ever seen it fastened back to the wall when open. The general practice was to push back the shutter from the inside. The shutter has been there for a good many years. I should say twenty or twenty five years. I do not recollect if there was a shutter there when I first knew the place. I have never seen (several words burnt)shutter shut from the Close. I (several words burnt)cted to the shutter during the (several words burnt) case because it was (several words burnt) shut. The place was occupied by bill posters for some time and these had it often shut for days together. I considered that the Court was mine and I did not want to trouble any neighbours about the shutter. And all that I have before deponed is truth as I shall answer to God.

Alexander KeillerD. Gordon Stewart Comr.

Note Reference the Wilson Territorial ChurchUnder Dr William Wilson, minister of Free St Paul’s [what we now all Meadowside St Paul’s] a mission was opened in the Overgate area. At first they used the old Gaelic Church in Long Wynd for ten years. They moved to 145 Overgate in November 1866. It was known as Wilson Territorial Mission. For about three years from 1876 the mission was an independent congregation. There were problems and after the minister moved to another charge it ceased to exist as a sanctioned charge but continued as a mission under St Paul’s. I think the mission may have continued until the demolition of most of the Overgate in the 1960s.

Inventory of Additional Writsto the subjects belonging toPetitioner Alexander Keillercalled for by the Respondent

Thomas Buchan in courseof the Petitioners Proof

In theAction before the Deanof Guild Court Dundee

Keiller vs Buchan

1. Extract Registered Disposition and Assignation by Andrew Mitchell Merchant in Milltonn of Connon parish of Carmiley in favor of William Campbell Wright in Dundee dated the 12th and recorded in the Burgh Court Books of Dundee the 15th both days of January 1747.2. Extract Registered Disposition by the said William Campbell to Margaret Stephen his Spouse dated 9th May 1764 and recorded in the Burgh Court Books of Dundee 19th May 1783.3. Extract Registered Disposition and Assignation by the said Mrs Margaret Stephen then Relict of the said William Campbell to James Campbell Merchant Dundee her son dated 19th June 1781 and recorded in the Burgh Court Books of Dundee 19th May 1893.4. Instrument of Sasine following on Numbers 2 and 3 in favor of the said James Campbell dated 28th May and recorded in the Resister of Sasines Reversions &c. for the Burgh of Dundee 9th June both in 1783.5. Copy Agreement betwixt the said James Campbell and Samuel Bell Architect in Dundee 1780 on back with a Receipt attached thereto by John Rankine to said James Campbell, for his half of the mutual dyke betwixt his Garden and John Rankine’s Close dated (burnt) March 1769.6. Instrument of Cognition and Sasine in favor of James Campbell Nurseryman of Wester Dalry only son of the now deceased James Campbell nearest and lawful heir to his Father

10

dated the 13th and registered in the Register of Sasines kept for the Burgh of Dundee the 14th both days of September 1813.7. Extract Registered Disposition by the said James Campbell, (Nurseryman) in favor of David Farquharson Merchant Dundee and Thomas Bell Farmer at Barns of Wedderburn as the accepting Trustees of the said deceased James Campbell his Father dated the 10 th

September 1813 and recorded in he Burgh Court Books of Dundee 3rd February 1714. 8. Extract Disposition and Deed of Assumption and Disposition by the said David Farquharson and Thomas Bell in favor of the said Thomas Bell. David Brown Merchant Dundee and Alexander Speid Accountant to the Dundee New Bank and the survivors or survivor of them as Trustees foresaid (the said David Farquharson having signed off) dated the 14th and 15th days of March 1817.9. Instrument of Sasine following thereon in favor of the said Thomas Bell, David Brown and Alexander Speid dated the 26th and recorded in the Register of Sasines &c kept for the Burgh of Dundee the 27th both days of March 1817.10. Minute of Agreement between Mrs Barbara Campbell Relict of the said deceased James Campbell for herself and as taking burden on her for said (word burnt) and for Mrs Barbara Campbell alias Walker Daughter of the said James Campbell, David (word burnt) Architect in Dundee for the Dundee Harbour Commissioners dated 26th November 1818.11. Inventory of Writs referred to in Extract Registered Disposition by the said David Brown as only surviving Trustee foresaid in favor of the said Mrs Barbara Campbell or Walker and Thomas Walker Spouse and the longest liver if them two in liferent and to the Child or Children then already procreated and to be procreated of their Marriage in fee of Subjects near the head of Murraygate Dundee dated said Inventory 5th December 1817 and has thereon a Minute or Docquet by the said David Brown dated (burnt) September 1832 with reference (word burnt) of that date in favor of word burnt) Walker. 12. Tack between the said Mrs Barbara Campbell or Walker and Messers James Keiller and Sons Confectioners Dundee of piece of ground therein mentioned for 19 years from Martinmas 1849. 13. Inventory of the Deeds of Property in Murraygate Dundee belonging to Mr David Walker and others subscribed of date 24th October 1854 by Henry Walker with reference to Articles of Roup therein referred to.

Dundee 1st April 1875Borrowed by me the foregoing Productions for Petitioner 13 in Number.

p J. W. ThomsonD. Thomson

Inventory of Productionsfor

RespondentIn Dean of Guild PetitionAgainst Thomas Buchan

1. Plan shewing March between Mr Buchan and Mr Keiller’s Properties Campbell’s Close.

Dundee 1 April 1875Borrowed the above mentioned Plan

p A. HendryJohn Milne

At Dundee the EleventhDay of January Eighteen

Hundred and seventyFive

In the Acton presentlydepending in the Dean

of Guild Court of Dundeeat the instance of AlexanderKeiller Confectioner in Dun-dee against Thomas Buchan

11

Auctioneer and ValuatorDundee

In presence of David GordonStewart Solicitor in DundeeClerk of the said Guild Courtand Commissioner appointedfor taking the Proof allowedthe parties. Also in presence of the Respondent and of the

Agents for both parties.Compeared John (word burnt) Beatts Auctioneer in Dundee who being solemnly sword and examined s a Witness for Respondent. Depones: I have known Campbell’s Close all my days and have noticed it particularly since 1832. I fix upon that year because it was the year of the Reform Jubilee in which I took part. The banners were then arranged round the Court I was tenant for upwards of two years of part of the ground floor of the Respondents tenement to which I entered in July 1867 Eighteen hundred and sixty seven. There was a window in the north wall of the Respondents tenement in the part which I possessed looking into the Court. There was a wooden shutter on that window which opened out to the Court. There was a shutter there from Eighteen hundred and thirty two onwards and I have no doubt it was the same shutter that was on when I took possession of it in Eighteen hundred and sixty. Before I took possession I did (two words burnt) the shutter fastened back on the wall it was just open and put back close to the wall. I found a spike or nail in the wall when I took possession which seemed to have been there a considerable time and was rusty. The spike or nail was palpably there for fastening the shutter. In the morning when I was tenant I opened the shutter as if it was a window fastened to the nail and in the evening closed it again. The shutter was often closed by children playing there and on these occasions I fastened it back. In opening or closing the shutter I went into the Court. I could not have done it any other way. I did not do it any other way. I had my face to the shutter and my back to the Court. I used that Court freely so far as I needed it for that purpose without challenge or interference. I never stood in the Close and pushed the shutter back from there.Interrogated for the Petitioner. Depones: (word burnt) no tenancy or interest in the property in Campbell’s Close prior to Eighteen hundred and sixty seven. I have gone through the Close frequently between Eighteen hundred and thirty two and Eighteen hundred and sixty seven as a writers apprentice also as an Auctioneer having had sales in that tenement of the Respondents but not in the Court beyond the north wall of the Respondents tenement. I often shoved the shutters back and generally went round or caused some one to go round and fasten it back. I know a family named Barry in the Petitioners property in that Court. I did not know except by the sign that they were there prior to Eighteen hundred and sixty seven. There was a Dwelling house in that Court which I understand now belongs to the Petitioner. The window having (word burnt) the shutter was distant from the west (word burnt) of the Close the breadth of the (two words burnt) and a few inches more. I remember (word burnt) the shutter but suppose it would be about two and one half feet broad and its height or length about five foot. The spike was in the back part of the Respondents tenement in the Court. I never saw a nail in Campbell’s Close to which the stutter was fastened. A person standing in the Close could with a longer string could have fastened back the shutter without going into the Court. The shutter might be shut without going into the Court by merely putting round the arm. I did not know that the Barry ever occupied the premises in Campbell’s Close tenanted by me. And all that it have before deponed is truth as I shall answer to God.

James BeattsD. Gordon Stewart Com.

Compeared James McLaren Architect in Dundee who being solemnly sworn and examined as a Witness for the Responded. Depones: I am forty four years of age and have known Campbell’s Close in a general way for about thirty years. I have known it professionally for about twenty years. I mean that I have been engaged with buildings in the vicinity during that time. I am aware in a general way of the old buildings that have been taken down and reconstructed in the town. I have been engaged as an Architect in the taking

12

down and reconstructing of many buildings in the centre of Dundee during the last twenty years. I have recently specially examined the property at the head of Campbell’s Close including these belonging to the Petitioner and Respondent. I produce a plan made by me which is docqueted and signed a relative thereto. Immediately to the (word burnt) of the Respondents tenement (word burnt)is an open Court.Interrogated: Has the open Court been paved for years? Objected by the Petitioner that the question and line of evidence to which it is apparently intended to lead are altogether irrelevant there being no point at issue inn this case as to the condition or right or property in the Court to which it was Answered the record raises in the two questions of use of the Court for access to the Shutter for the purpose of opening and closing it and of the Eavesdrop and access to the conductors for repairs &c. Objection sustained against which the Respondent appeals to the Court.

D. Gordon StewartDepones: There is no feature of mutuality at all in the back wall of the Respondents tenement to the west of the Close. There are numerous windows in it enclosing the one with the shutter which opens outwards to the wall appears to be fifty or (word burnt) years old and is the same (two words burnt) tenement. There is an Eavesdrop there. But for the Conductors the water from the roof of the tenement would drop into the Court. The rain water Conductors appear to be as old as the tenement but he junctions from the sink do not appear to be so old. The Conductor and spout are close to but outside the wall. It appears to me that these Conductors and spout could not have been placed there or repaired except from the Court. Shown No 6 of Process Depones: The plan shewing the wall of the petitioners proposed building would be built close to the north wall of the Respondents tenement. That would exclude the use of the Conductors for repairs and shut up the light. The windows are undoubtedly as old as the north wall itself. I have seen the shutter which is wooden and appears to me to be the same age as the tenement on the Petitioners proposed operations. (two words burnt) shut up that window. From appearances (word burnt) appliances the shutter is hung to be put back and closed from the outside. I mean by a person standing in the Court. The sweep of the shutter is shewn on the plan produced by me and requires two feet seven inches of the Court, being the breadth of the shutter. A person shutting the shutter would not require for closing it more than another inch beyond the breadth of the shutter. There are no rybat heads at the point marked AA on my plan. This shows me as a man of experience that the tenement was originally built without having any idea of a door being put here and therefore there was nothing to prevent access to the shutter or the rhones. There is a toofall on the west of the Court and I am quite clear the the (word burnt) wall of it is the back wall of the Respondents tenement. (two words burnt) an Eavesdrop of nine inches beyond the Respondents north wall by which I mean that it is a projecting rave of slates and that it is recognised practice that when such an rave exists outside of the wall are claimed and allowed for an eavesdrop. The roof of the toofall is not fastened to the said wall but it appears to me to be more recent than the tenement. There are three vents in the wall East of Campbell’s Close used by the Petitioners tenants. In think that these vents give a right to the Petitioner to that wall to the extent of the old building. I am not sure whether the old wall of the three storey building containing these vents for the original wall of the Petitioners tenement or was rebuilt in erecting the Respondents tenement. All the Respondents wall above the three storey building is undoubtedly the Respondents having an Eavesdrop running along and the light the same as west of the Close. (two words burnt) the three storey building is (two words burnt) is a stooling in the (several words burnt) three storeys of the three storey building which projects beyond the line of the Respondents north wall but that is not sufficient to contain the whole of the Petitioners vents so that the vents throughout must be at least particularly within the line of the Respondents wall and above the third storey where the stooling ceases they are wholly within his wall, I cannot say to what extent the vents are within the line of the Respondents wall at the stooling. At the junction of the roof of the three storey building with Petitioners there is nothing to show its mutuality. The roof does not rest in any way on that wall of the Respondents tenement. the rain water from the Respondents tenement is carried first by two branch conductors then by one rain conductor down to the Court where it discharges in to the (word burnt) in the Court. Shewn No (two words burnt) the effect of he Petitioners proposed building is that (several words burnt)

13

Conductor and also the window up to within five feet of the top of the north wall of the Respondents tenement. It is direct interference with the Respondents property. The features of a mutual wall in my experience are that most parties enjoy something in common and that I do not regard as a mutual wall one in which one of the parties can claim rights which necessarily deprive the other of similar rights. I never knew as mutual side wall they are gables the features of which are vents and presses. The Respondents north wall is not in my experience a mutual wall throughout. I consider a portion of that wall is subject to mutual rights. The portion of it is so much as is covered by end of the Petitioners three storey building. There are cases of mutual walls of an equal right (two words burnt) Petitioners mutual right to the wall stops at the roof of the three storey building. The Petitioners only right in the wall above the height of the three storey building is to have his vents continued. I do not know of a single instance in Dundee is a side wall having windows being mutual. In my opinion when the Respondents tenement was to be built as arrangement was come to with the Petitioners predecessor to take up the three storey vents in the back wall of the new building I order to do so the power portion of the Petitioners old gable had been allowed to stand or had been taken down and rebuilt nearly upon the site of the old wall that is partly off and on the old gable. I find evidences from the building that the Petitioners three storey building (two words burnt) intended to be carried higher and (two words burnt) which the proprietor (two words burnt) in the Respondent wall extends (two words burnt) from the existence of windows the absence of any more fireplaces and a continuation of the Eaves and rhones. The invariable practice when one party builds a mutual wall higher than his neighbour inclines is that he leaves on the outside section fire places and presses and takes up the spare vent. The Plan No 6 of Process does not show the window or shutter or the Conductor in question or the waste pipes. There is a sliding door very recently put up which is shewn on said plan as going a few inches within the line of the Respondents north wall but in fact the door and posts are outside that wall. the gutter shown on the section on the plan No 6 of Process could not be kept water tight except by an apron of lead which would have to be raggled or groved into the Respondents wall. No such (two words burnt) is shown on the plan. The Petitioner has no right to do so and the (two words burnt) such raggling at present on the part of the Petitioner property adjoining that of the Respondent. The Petitioners building would have the effect of encasing the Respondents water pipes and of shutting up his lights. It would be impossible to repair these pipes.Interrogated for the Petitioner. Depones: The windows in the Respondents back wall have no projecting sills. The windows in the south wall of the same tenement have projecting sills. I explain that by open Court. I meant a Court open to the skies and accessible without door or gate. There is a sliding door at the north end of Campbell’s Close which shuts in the Court. I have been in the inside of the toofall on the west side of that Court. It has a north gable wall which I think is of the same (two words burnt) the west of the building. The entrance to the toofall was from (two words burnt)rt. There is a mark of a door having been built up and also a window. If the toofall was built before the Respondents tenement it must have had a south gable but if more recently not. A cannot speak with any degree of certainty because it is a small building with no heron stone above it and it is difficult to form any opinion as to the age from rubble work which it is composed of. I cannot state positively whether the toofall or the Respondents tenement is the older. The roof of the toofall comes close up to that back wall of the Respondents tenement and is plastered to it. When I was inside the toofall I could not see the (word burnt) of the building whether (two words burnt) the south gable of the (word burnt) or the north wall of the (two words burnt) tenement the wall (two words burnt) was whitewashed or plastered to the wall so plastered I took to be the back wall of the Respondents tenement because it was flush with the line of his wall. if the toofall ever had a south gable the wall of the Respondents tenement would probably be built partly on the site but I am not satisfied that the toofall ever had an independent south gable of its own. The water rhone overhangs the toofall and if it were not there the rain water from the Respondents roof would fall down upon it. there is only one Conductor which serves for the waste water of the sinks as well as for the rain water from the Respondents tenement. the sinks are led into that Conductor. These sinks must have been let in since the (word burnt) introduction of the Monikie (two words burnt) about

14

twenty years ago or it would be within that time. I observed (two words burnt)ctor in the angle (three words burnt) of the Court. Which (several words burnt) which is now the Conductor of the Petitioners three storey building only. I do not know how the Conductor was fastened to the wall. the roof of the three storey building is of old grey slates. I cannot say whether the roof is raggled into the Respondents back wall but I am sure there is no lead raggle although there may be a slate one. I have no doubt but that the three storey building is older than the Respondents tenement. There is no stooling or projection in the ground floor of the three storey building. The wall there is flush with the Respondents back wall. There is a fireplace in that lower storey which I think goes from fourteen to sixteen inches into that wall. I believe the thickness of the Respondents back wall throughout to be (word burnt) six inches. In one of the stories (two words burnt) roof I saw a beam there (several two words burnt) is much in the south gable of the three storey bulldog. It was evidently as old as the floor which it supported above. There are three vents from the three storey building carried up to the height of the ridge of the Respondents tenement. They come out of the three storey building and are carried through the wall above into a special chimney head as shewn on my plan. The north side of the said chimney is flush with the south side of the back wall of the Respondents tenement. The rain water rhone does all along the said back wall but for that rhone the rain water would fall on the roof of the three storey building. I cannot tell the breadth of the rhone itself but it will not exceed five inches. The conductor shewn on the plan No 6 of Process at the (two words burnt)est corner of Campbell’s Close with (two words burnt)nch drain into the close. When the shutter already mentioned is folded back it would go close to Campbell’s Close or within half an inch of it. I meant by the statement that the stone work shows that it has not been constructed by for a door to be inserted at AA or it would be quite possible that to put up wooden posts and hang a door there. My plan does not show the line of the drain from the Conductor into Campbell’s Close. I know that there is a window in the mutual gable in Panmure Street but it is put there temporarily and the room otherwise lighted. The adjoining ground is leased for seven years still to run for one storey building in that case.Interrogated for the Respondent. Depones: There is no other window available for the Respondents rooms which these light. The absence of projecting s(two words burnt) the back wall is explained (two words burnt) front walls being made (two words burnt)amental. It is quite common (two words burnt)pendents back wall to be w(two words burnt) projecting sills. The absence of projecting sills does not infer the wall to be mutual. If the rhone was not in the Respondents tenement the rain water would fall on the three storey building and also partly on the Court. The plan No 6 of Process does not show what is to be done with the Respondents waste pipes or the rain water Conductor below the height of the proposed building. I would infer from the plan that these were to be cased in by the new wall.Interrogated for the Petitioner. Depones: The cross lines shown on the plan No 6 of Process at the north end of Campbell’s Close would indicate the intention to place a gate or door along the centre of said cross lines. The projection of the stooling in the second storey from the ground is (word burnt) inches at one side of the fire place and five inches at the other side of the third storey it is twe(two words burnt)ches and right in the (two words burnt). And all that I have before deponed to is truth as I shall answer to God.

James Maclaren. Gordon Stewart Com.

At this stage on the motionof the Respondent and of

consent the Commissioneradjourns the diet until

tomorrow at half past teno’clock forenoon.

D. Gordon Stewart Com.

12th January 1875In the action presentlydepending in the Dean

15

of Guild Court of Dundeeat the instance of AlexanderKeiller Confectioner in Dun-dee against Thomas Buchan

Auctioneer and ValuatorDundee

Compeared George Haggart Builder Dundee who being solemnly sworn and examined as a Witness for the Respondent. Depones: I am sixty four years of age and have been in business for upwards of thirty years. I have taken down a number of old buildings in the centre of Dundee. I (two words burnt) the properties of the Petitioner and the Respondent at the top of Campbell’s Close. I have examined the buildings. The Petitioners property is on three sides of the Court and the Respondents on the other side. Until I recently examined the premises in connection with this case. I did not pay particular attention to the state of the Court with reference to the Respondents right of access. I cannot say positively to whom the Court belonged. I have been up all these Closes but until the present question arose I did not pay particular attention but I have been at it before. On previous occasions I do not remember of any door obstructing access to the Court. I have examined the old three storey building of the Petitioner on the east side of the Court. I find the vent going up the side wall of the Respondents tenement. I cannot say (two words burnt)her that wall had been particularly mutual. My idea on (three words burnt) it is that the vents had been carried up by agreement because of the finished surface of the wall and the tenement being higher by a flat with windows. The spouts indicate a right of eavesdrop of at least nine inches. Mutual walls as a rule never have and cannot have eavesdrop neither has an ordinary wall is built to the verge of the ground. In my opinion the vents show a right of servitude to the Petitioner in that wall to that extent and nothing more. The corners at the north end of the close at the Respondents tenement are finished square and without any check being left for a door or gate. On the west side of the Close I have noticed a window with a Shutter upon it opening outwards. I should think for the ordinary use of that shutter the proprietor of the Respondents tenement would require to get into the Court (word burnt) eavesdrop runs along to the extent of the Respondents tenement. There are a number of windows in that tenement looking into the Court with sink waste pipes projecting. The Respondent cannot get access to repair these pipes except by the Court. My opinion is that the north wall of the Respondents tenement west of the three storey building is the Respondents property and is not mutual. I come to that opinion because of the finished appearance of the building and of the lights. There are sills in the back window but I do not remember if they project. The non-projection of the sills does not affect my opinion as to its not being mutual. There are plenty of old buildings without projecting sills. Projecting sills are matter of taste and are often not in back walls which this is. In building to the (word burnt) I left no projecting sills of (word burnt)ng nor even rhone. There co(two words burnt) where the building is to the (three words burnt). I think the toofall has been “a (word burnt) house” put up leaning to the Respondents tenement and does is no harm and been done without objection. I do not think the toofall is fastened into that wall. I could see no appearance of that. I do know the thickness of the toofall. I cannot say whether the thickness is nine, twelve or twenty four inches. I think the Respondents tenement is older than the toofall. I have no doubt of it. I do not think the roof of the toofall is fastened to the wall of the Respondents tenement. It is leant up to it but not supported by it. The Shutter looks as if it had stood for forty to sixty years but I cannot tell its age. Being shown No 6 of Process. Depones: That plan does not show the Respondents soil pipes or spouts nor yet the windows with the Shutters. (word burnt)th Petitioners proposed new wall (two words burnt) on the plan was erected the (two words burnt) would be “old lead” or useless. (two words burnt) would be covered in unless strips (two words burnt) carried away. The gutter of the three storey building bringing down the water of it but I cannot say whether it is close to the respondents back wall or fastened to it. I mean by the expression verge of the ground the extreme boundary between adjoining properties. I have known a servitude of eavesdrop given by agreement but not otherwise. When I see property with a spout upon it I say that that maintains a right of property of at least nine inches without any written agreement. I think from the general appearance of the toofall and its leaning to the other it is the

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more recent of the two buildings. I cannot say whether the roof of the toofall at the south end is raggled into the back wall of the Respondent’s tenement. The toofall like the three storey building stands end on and close to the Respondents tenement (two words burnt) latter has vents while the former has none. The rave of the Respondents tenement projects over the (two words burnt) and the three storey building. My opinion is that the portion of these two buildings covered by the said rave belongs to the Respondent. I think the Respondents tenement has been wholly built on its own ground with a right of nine inches beyond it northwards and that the three storey building had got the privilege of the vents from the adjoining proprietor. My impression is that the south gable of the three storey building is not the original wall but part of the back wall of the Respondents tenement. I understand that the difference between a servitude and a mutual wall is that the former is acquired by purchase while the latter is built on ones own ground. I did not examine the south end of the toofall. I cannot say that the old south wall of the toofall is still there or not. There is sliding door at the north end of Campbell’s Close recently put into the wood is new and not discoloured was standing open when I w(two words burnt) and some of the Petitioners (two words burnt)were there. I do not know when the door was put up. The water (words burnt) projects from the wall about five inches and the Conductor about four or five inches. The shutter is at east three feet or three feet six inches in breadth. I saw the shutter folded back but cannot say whether it came to the Close. There is nothing to prevent pasts and a door being hung at the north end of the Close but it was not finished or preparations made for a door. There are widows in the south wall of the Respondents tenement but I cannot tell whether they have projecting sills. The first time I saw the shutters was when I was there at the inspection about five or six weeks ago so far as I remember. Being shown No 6 of Process. Depones: there is a shore shown at the back wall of the Respondents tenement. The new building does not come up the height of the Respondents tenement. The plan shows an opening in the wall (two words burnt) side of Campbell’s Close in the (two words burnt) and I cannot say for what (two words burnt)inion intended. The blank space referred to might be for a post and the blue line shown might be a chain or spar to work the gate if put on.Re-examined for the Respondent. Depones: There is no raggle shown in the Respondents wall for the gutter on the plan No 6 of Process. The plan prepared by the preceding Witness James Maclaren is I think substantially correct, I mean so far as the outward appearance of the building is concerned. And all that I have before deponed is truth as I shall answer to God.

Geo. HaggartD. Gordon Stewart.

Compeared Thomas Buchan Auctioneer and Valuator Dundee the Respondent who being solemnly sworn and examined as a Witness for the Respondent Depones: ii am fifty (three words burnt) and have known Campbell’s Close for about twenty four years and the property belonging to me and also to the Petitioner. I bought my property in said Close in Eighteen hundred and sixty four. When I first knew these properties I knew that window with the shutter access not to it by Campbell’s Close and the Court. I am referring to nearly twenty four years ago. There was no door or gate then at the top of the Close. I think the door was put up about a year ago. It was put up before I knew. There never was a gate or door there previous to that time. The door is in the Court and not in the Close. When I acquired the report it was in the same state as at present so far as rhones and Conductors are concerned. I have frequently had occasion to repair the roof and the rhones and Conductor since I acquired the property. The tradesmen used the Court for putting up ladders and materials without (two words burnt)ence. I overhauled the property immediately after I got it which (several words burnt) was in a bad state of repair and the tradesmen then used the Court as explained above. Within the last two years the roof was repaired by the late Mr Slater. I have had a great many old properties taken down and rebuilt in the centre of Dundee. I think that the whole of the north wall of my tenement belongs to me under the servitude acquired by the Petitioner or his predecessors by the three storey building on the East having the vents into the back wall and the toofall on the west side of the Court leaning up against my wall. The tenement belonging to me has twelve Windows in the back wall which are the only means of lighting the rooms and there is no other mode of lighting these rooms

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except by these windows. There is an eaves drop along the whole of said back wall which projects northwards (two words burnt) are rhones and Conductors for carrying the) rain water off the roof (and the) water from the (word burnt) kitchen s(two words burnt) outside of the wall constructed of (word illegible) leads me to think that it was built at the same time as my tenement from the foundation and for these reasons the wall of the lower or cellar storey is of the same thickness and on a line with the remainder of my back wall the second and third stories are corbelled and a stooling for and making a projection giving great depth for fireplaces then above that wall is carried up the thickness of the lower storey and the vents drain into the wall and carried up the brick wall. That corbelling could not have been projected unless built at the same time as the other pats of the same wall. The lower flat with the wall above and the corbelling have evidently been built at the same time as the back wall of my tenement. Had my tenement been built after the here storey building there would have been in (two words burnt) being joined in (two words burnt) is not. If the old wall had been down at each (two words burnt) in order (three words burnt) connection the stooling would not have stood. There is a vent in the (word burnt) storey which goes straight up the south gable wall. The use of the corbelling is to give a greater depth for the fireplaces and vents. There are no vents behind these in my tenement. There is a stair case. The gable wall has vents and serves for the rooms in my tenement; that it the gable wall at the roof end of my tenement. I observed a drain in the Cellar floor which I think had been put in for trade purpose and not for supporting the floor above. The end of the beam is inserted in the south gable and is an old one. I have known old beam put into new tenements and its age is no evidence that it was there originally but part of the upper storey has been bard by tradesmen but very little. This was before the Witnesses went here. The other (two words burnt)alls of the old three storey building is much older than my tenement. It is in my opinion that that building (two words burnt) a south gable of my tenement and served all the purposes of a back door to my tenement. And all that I have before deponed is truth as I shall answer to God.

Thomas BuchanD. Gordon Stewart

At this stage on the motion of the Respondent and of consent the Commissioner adjourned the diet until tomorrow at twelve o’clock noon.

D. Gordon Stewart

Dundee 13th January 1875In the Action presently de-

pending in the Dean ofGuild Court of Dundeeat the instance of Alex-

ander Keiller Confectionerin Dundee against Thomas

Buchan Auctioneer andValuator Dundee

In presence of David GordonStewart Solicitor in DundeeClerk of the said Guild Courtand Commissioner appointedfor taking the Proof allowed

the parties. Also in presence ofJohn Simpson for Mr Andrew

Hendry Agent for the Respondent of MrJ. W. Thomson Agent for the Petitioner

Compeared Robert (burnt) Senior presently residing at Number four Airlie Terrace Dundee who being solemnly sworn and examined as a Witness for the Respondent Depones I am over sixty years of age. I know the Respondents property at the top of Campbell’s Close. It is more than twenty years since I have seen the Court at the head of Campbell’s Close. There was a three storey land on the south side within outside stair going up to the first flat and a passage below that led to a large garden (word burnt) and

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formerly occupied by the late Mr Keiller and which I believe now belongs to the Petitioner. At that time there was a one storey building on the west side of the Court and an old fashioned three storey building on the west side of the Court in Eighteen hundred and thirty. My Mother, brother and myself lived in the second flat of the building on the (word burnt) side of the Court. Two years afterwards I commenced business on my own account and at that time (two words burnt) the west corner cellar of the tenement belonging to the Respondent. The (two words burnt) was then divided into Cellar (two words burnt)tly afterwards I occupied the (two words burnt) lower flat on both sides of Campbell’s Close. There were shutters on all the windows of these cellars which opened outward window of the upper Cellar on the ground floor of the Respondents tenement in the north west corner of the building twelve panes one with double sash or shutter was upright and cross board which had been painted brown and opened on two iron hinges battered into the wall with a bolt to fasten it into the stone. When the shutter was fastened back the iron bolt went into an iron hasp fixed in the wall. The shutter was there before we went in Eighteen hundred and thirty but how long I cannot say. I occupied the premises for years after that date but I cannot say how long. The shutter was opened by (two words burnt) up the lower window sash under (two words burnt) and throwing the shutter back (two words burnt)by coming into the Court (two words burnt) the bolts into the hasp (two words burnt) done this often myself as I had (two words burnt) at first to do it. No one ever (two words burnt) with me at first Mr Campbell was the proprietor of the tenement on the north side of the Court at that time and resided there and being his tenement as wll he never interfered with me. I had the privilege from Mr Campbell of also of placing my step ladders or anything in the Court. I was on friendly terms with Mr Campbell and I think I just took the privilege but it (word burnt) merely tolerated. The Court belonged to Mr Campbell then or at least he (word burnt)med it. I never saw his Title but he claimed it and I always understood the Court was his. It was possible to open and shut the shutters from the inside with great inconvenience the inconvenience not likely to be taken. I could go into the Court after I occupied the premises the sweet(remainder of word burnt) in the late Mr Keillers employment who occupied the third flat of the Respondents tenement had fixed (two words burnt) from that flat which were (two words burnt) removed. I think Mr Campbell (three words burnt) to reside in the Court by this time the Petitioners father was the succ(remainder of word burnt) in Mr Campbell’s house in the Court but I have no recollection of the tenants of the properties to the south using it except myself as before explained which I looked upon as a privilege on one of Mr Campbell’s tenants.Interrogated for the Petitioner. Depones: Mr Campbell was I think proprietor of the east and north sides of the Court but I am not sure whether he owned the toofall at the west side of the Court. It was always understood the Court was Mr Campbell’s. That was merely my impression. There was a pretty large Court to the front of the Respondents tenement on the west side of Campbell’s Close with an iron railing shutting it off from the Close. There was (word burnt) other small ~Court on the west side of that Close immediately to the front of the Respondents tenement also shut off from the Close by a parapet and word burnt) iron r(two words burnt) Court in the east extended to the wall of a shop and back shop occupied by George Keiller Confectioner who was there when I was tenant of the premises. The Court on e west side went as far south as the back wing formerly occupied by Mr Anderson’s family. And all that I have before deponed is truth as I shall answer to God.

R. C(illegible)D. Gordon Stewart

Deposition of James McLarenArchitect Dundee

Taken in causa Alexander Keiller Confectioner Dundee v Thomas Buchan Auctioneer and Valuator there taken on eleven January 1875.

D. Gordon Stewart

At Dundee theEleventh day of

January Eighteen

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Hundred and seventy fiveIn the Action presently de-

pending in the Dean of Guild Courtof Dundee at the instance of Alex-ander Keiller Confectioner Dundeeagainst Tomas Buchan Auctioneer

and Valuator Dundee In presence of David Gordon

Stewart Solicitor in Dundee Clerkof the said Guild Court and Com-

missioner appointed for taking theproof allowed the parties. Also inpresence of the Respondent and

of the Agents for both partiesCompeared James MacLaren Architect in Dundee who being solemnly sworn and examined and being interrogated. Has this open Court been paved for years? Depones and Answers: Yes to my knowledge it has been paved from six to eight years.

James MaclarenD. Gordon Stewart.

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