Scottish Court of Session Decisions

Humphrey E. Crum Ewing, proprietor in fee of the estates of Strathleven and Dumbarton Moor, raised this action of declarator and damages against Mrs Jane Tucker Crawford or Ewing, widow of the late James Ewing of Strathleven, and liferentrix under his trust-disposition and settlement of the said estates, and against her game tenants thereon for their interest in the premises. The conclusions of the summons were as follows:—“Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session—(1) That the pursuer is entitled, by himself or others in his employment, for the protection of the trees planted by or belonging to him on the said estate, to kill hares and rabbits or otherwise, and at least rabbits, within the plantations on said lands and estate, and that by shooting, snaring, and all other lawful means, within the said plantations, and in the fences surrounding the same; (2) that the defender, the said Mrs Jane Tucker Crawford or Ewing, is not entitled to cause or allow to exist and breed within the said plantations, or on the said lands and estate, a stock of rabbits or hares incompatible with the life and growth of the trees in said plantations, or with the fair and ordinary enjoyment by the pursuer of his proprietory rights in the said plantations; (3) that otherwise, and in any view, the said defender is not entitled to cause or allow to exist and breed on said lands or estate or otherwise, and at least within and around the said plantations, a stock of rabbits or hares in excess of what is usual and ordinary and reasonably sufficient for the purpose of sport; and further, it ought and should be found and declared by decree foresaid that the said defender has acted wrongfully, and to the pursuer's loss, injury, and damage—(1) In forcibly, and by herself and her game tenants with her authority, preventing the pursuer and

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his servants and others employed by him from killing hares and rabbits, or at least rabbits, in said plantations; (2) in at the same time causing or allowing to exist and breed on said lands and estate, and within and around the said plantations, a stock of rabbits and hares incompatible with the life and growth of the trees in the said plantations; and (3) in causing or allowing to exist and breed in said lands and estate, and within and around the said plantations, an unusual and extraordinary stock of hares and rabbits, and a stock in excess of what is reasonably sufficient for purposes of sport; and the said defender ought and should be decerned and ordained by decree foresaid to make payment to the pursuer of the sum of £1000 sterling in name of damages.”

The pursuer made the following averments on record—“(Cond. 3) At the date of Mr Ewing's death there were a number of plantations in said estate, for the most part consisting of narrow beltings necessary for the purposes of shelter and amenity. A considerable portion of the wood in question still remains, and is carefully superintended by the pursuer as fiar of the estate. But considerable portions of the said wood have been from time to time uprooted by storms, and trees ripe for cutting have been cut down for estate purposes and otherwise, and some of these have been replanted by the pursuer with the tacit approval of the liferentrix. There are thus on the estate at present, besides various portions of old plantations, a number of young plantations which have been replanted by the pursuer, and which are managed and cultivated at his expense, and these young plantations are all of them necessary for shelter and the preservation of the amenity of the estate.” “(Cond. 4) The game on the estate is let by the liferentrix to Messrs White and Ewing, the defenders called for their interest; and for some time past the game, and in particular the ground game, has been very strictly preserved, and the stock of game, and in particular of hares and rabbits, allowed very largely to increase. In point of fact, there is at present, and has been for some years upon the estate, a stock of hares and rabbits very largely in excess of what is usual and ordinary or necessary for any legitimate purposes of sport. The said increase has been due to the actings and mode of management pursued by the defender or by her said game tenants with her authority.” “(Cond. 5) The result of the presence on the estate, and in particular within and around the said plantations, of so large a stock of hares and rabbits, and in particular of rabbits, has been entirely to destroy great parts of the said plantations, and to make it impossible for the pursuer to keep up the same or to replant with the possibility of success. The hares and rabbits (and more especially the latter as being more numerous) have for several years past regularly eaten up the young trees or otherwise injured or destroyed them, and great numbers of trees have in this way, year after year, been totally destroyed. The damage which the pursuer has thereby sustained is not less than the sum of £1000.” “(Cond. 6) The pursuer, when the effects of the said excess in the stock of hares and rabbits became apparent, made repeated complaints to the defender and her game tenants, and urged them to keep down the said stock at their own hands. The pursuer's complaints, however, did not have the desired effect, and the result was that he was obliged to direct his foresters and other servants to destroy rabbits in the plantations where the ravages were most serious. This was done chiefly by digging up rabbit-burrows and setting traps and snares in burrows and rabbit runs. So soon, however, as the pursuer adopted these measures of protection the defender and her game tenants and their servants began systematically to spring the pursuer's traps and destroy his snares. The pursuer's servants thereupon employed ferrets and guns, but latterly, and particularly towards the end of November last, the servants of the game tenants, or one or other of them, came in considerable force and forcibly interfered with the pursuer's servants; and the defender and her game tenants have intimated that they will continue to prevent any killing of hares and rabbits, or even of rabbits, within the said plantations. Openings have been repeatedly made in the fences surrounding the said plantations, whereby the hares and rabbits readily get in and out.” “(Cond. 7) The pursuer has no means of protecting his trees and plantations against the ravages of the animals in question except by killing them down. No fencing which he could erect would be of any avail for that purpose. He has made repeated proposals to the defender for an amicable adjustment of the matter, and latterly he has offered to take the whole game on the estate into his own hands on lease, paying the liferentrix a rent equal to the total rent which she at present receives from her game tenants. But the defender declines to make any terms, and the present action has thus become necessary.”

The pursuer pleaded—“(1) The pursuer, as the occupier of the said plantations, or at least having the rights of a fiar in the same, is entitled at common law to kill down the rabbits within the said plantations for the protection of the trees planted by or belonging to him. (2) Separatim, The pursuer has the said right as regards both hares and rabbits under the Ground Game Act 1880. (3) In any view, the defender is not entitled by herself or her tenants to maintain an excessive stock of hares and rabbits on said estate, and in particular in and around the said plantations, and having wrongfully done so, to the pursuer's loss, injury, and damage, the pursuer is entitled to reparation as concluded for.”

The defenders pleaded—“(1) The pursuer's averments are not relevant or sufficient to support the conclusions of the summons. (2) The pursuer having only the rights of fiar in the estate in question, subject to the free liferent use and enjoyment of the same by Mrs Ewing, he has no title to insist on the conclusions of the action.”

The Lord Ordinary (Curriehill) allowed a proof before answer.

The defenders reclaimed, and argued—That the pursuer having no title to sue, and his averments being irrelevant, the action should be dismissed. He argued that trees, once planted by whomsoever, were partes soli, and belonged to the fiar, but the fiar had no right to interfere with the ordinary enjoyment of the liferenter in her estate. The pursuer's demand would come to

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this, that the liferenter could keep no game or rabbits at all in the neighbourhood of any plantations on the estate. The form of the summons was unprecedented, and decree could not go out under it as it stood.

The pursuer answered—The only question at this stage was whether his averments were so irrelevant as to render proof undesirable. The case could not be satisfactorily settled except on a full view of the facts.

Authorities—Ersk. Inst., ii., 9, 56; Bell's Prin., sec. 1062; Gray v. Seton, 1789, M. 8250; Dickson v. Dickson, Jan. 24, 1823, 2 S. 152; M'Allister's Trustees v. M'Alister, June 27, 1851, 13 D. 1239.

At advising—