Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Sir Alexander Monro of Bearcrofts
v.
Grizel Bruce, &c

Date: 30 December 1696

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Mersington reported Sir Alexander Monro of Bearcrofts against Grizel Bruce, one of the heirs-portioners of Reddoch, and her mother and servants; being a charge, upon a decreet of the Justices of the Peace, for breaking, tearing up, and destroying ninety-two trees he had planted on a ditch, in the march betwixt them, at £20 Scots each tree, conform to the 41st Act of Parliament, 1661. The reasons of suspension were, 1mo. The decreet was null by the 28th Act of that same Parliament: among the instructions given to the Justices of the Peace, and their constables, they are not to meddle with heritors above ten chalders of victual of yearly rent. This was Repelled, in respect the Act does not restrain their cognoscing on such, but only that they may not imprison them. 2do. Alleged,—She was minor, and her curators were not called. Answered, 1mo. Wrong has no warrant; and, she being convened for a delinquency, there needed none to be called but herself. 2do. She is nineteen years old, and has no other curator but her mother, and she is called. The Lords repelled this reason also, but not in respect of the first answer, which they thought not sufficiently relevant, but of the second; though the mother was convened as socia and not qua curatrix. The third reason was,—The ground whereon they were planted was her own, and quilibet potest suo abuti, at least it was a controverted march. Answered,—Though the Justices of the Peace be not competent to property, yet, per l. 2. D. de Jurisdict. they may cognosce it in consequence of the riot; and accordingly it was fully proven to be the pursuer's ground; which the Lords sustained hoc loco. The fourth was,—That sixty of the ninety-two were but thorns, and designed only for a hedge; and so they fell not under the Act, appointing £20 for every growing tree destroyed; there being only £5 Scots of fine imposed on the breaking of hedges.

The Lords ordained trial to be taken, Whether the hawthorns were set by way of trees, at a distance, or only to make a hedge: And, in regard the Act 1685 has restricted the penalty to £10 for any trees within ten years old, they decerned for the other thirty-two trees at that rate, looking on that last Act as correctory of the former statutes. And though it was a very malicious act to destroy planting, esto it were on your own ground, for then plantata solo cedunt, yet they desired to be cleared, if they stood any time, and had taken root, or were challenged, ex incontinenti, after the planting, and broken down: and the Lords allowed the Reporter to pass to the ground and visit the same, and consider if it was designed for a hedge only, which the law esteems not to be trees, but only arbusta; or if it was destínate for large growing timber, to fence his house against the wind.

Vol. I. Page 749.