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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Steuart v. Stephen [1877] ScotLR 14_560_1 (12 June 1877) URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0560_1.html Cite as: [1877] SLR 14_560_1, [1877] ScotLR 14_560_1 |
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Page: 560↓
[Sheriff of Banffshire.]
Where a person, who did not aver any legal right, was in the habit of taking a short cut to a railway station across lands in the occupation of an agricultural tenant, and without objection on the tenant's part, interdict at the proprietor's instance refused.
This was an appeal from the Sheriff Court of Banffshire, in a petition at the instance of Steuart of Auchlunkart against Stephen, a shoemaker, residing at Deanshaugh, craving interdict against the respondent from trespassing on a piece of land lying between the Boat-of-Bridge Road and the Mulben Station of the Highland Railway Company. The land was occupied by Hay, the agricultural tenant of the petitioner. The respondent occupied certain land and houses on the further side of the said road from the railway
Page: 561↓
station. The petitioner averred that for the last nineteen years the respondent and his family had been in the habit of trespassing on the land between the road and the railway station, chiefly with the view of getting a short cut from the houses to the station; and that there was thus a danger of a right-of-way being established from the station across the agricultural land to the houses beyond the road. The only specific act of trespass mentioned was of date 15th September 1875. The respondent explained that he and his family had occasionally crossed the land in question, but only when it was in grass, and that without objection on the part of the tenant; and that the entering on the land of date 15th September 1875 was on the authority of the tenant, for the purpose of protecting the corn from stray cattle. The petitioner pleaded that he was entitled to sue for interdict without the consent of the agricultural tenant; and that the respondent was not entitled, without the petitioner's consent, to enter on the land in question.
The respondent pleaded that the petitioner had no title to sue, because the land was in the exclusive occupancy of his tenant, who was not a party to the proceedings, and that as he had not entered the land without the consent, or in opposition to the wishes of, the tenant, the interdict ought to be refused.
The Sheriff-Substitute refused the interdict.
The petitioner appealed.
Authorities cited for him—Taylor on Landlord and Tenant, ed. 1873, secs. 775, 784; Copland v. Maxwell, Nov. 20, 1868, 7 Macph. 142, and Feb. 28, 1871, Law Rep. 2 Sc. and Div. App. 103; Breadalbane v. Campbell, Feb. 12,1851, 13 D. 647, Stair, ii. 4, 36, Erskine, ii. 9, 4.
The respondent was not called on.
At advising—
Appeal dismissed.
Counsel for Appellant— R. V. Campbell. Agents— Maitland & Lyon, W.S.
Counsel for Respondent— Balfour—M'Kechnie. Agent— Thomas Carmichael, S.S.C.