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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macleod and Another v. Davidson and Others [1886] ScotLR 24_69 (17 November 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/24SLR0069.html Cite as: [1886] SLR 24_69, [1886] ScotLR 24_69 |
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Page: 69↓
[Sheriff of Inverness.
The assertion judicially by a party, of rights which are subsequently admitted not to exist, is such a threatened encroachment on the rights of the party against whom they are asserted as will justify the granting of interdict in his favour against the person so asserting them.
Where the owner of a field sought interdict against encroachment thereon by certain persons, and they stated on record a legal right to encroach thereon, but subsequently, after maintaining such right before the Sheriff, admitted in an appeal that it did not exist— held that the fact of its being put forward was a good ground for the granting of an interdict.
This was an action by Alexander MacLeod, tenant of the farm of Scuddaburgh under William Fraser, Esq., of Kilmuir, in the island of Skye (concurring pursuer), his landlord, for interdict against the Rev. James M. Davidson, minister of the quoad sacra parish of Stenscholl, Skye, and tenant of two lots of the township of Garrafada, Kilmuir, and a number of other persons, also tenants of lots in the same township. The petition was brought in the Sheriff Court of Inverness, Elgin, and Nairn at Portree, and asked the Court to interdict the defenders, or others acting for them, “from encroaching upon or in any way interfering with that field or park of land called Staffin Park, extending to 42 acres or
Page: 70↓
thereby,” belonging to the pursuer William Fraser, and tenanted from him by the pursuer Alexander MacLeod. The pursuers also asked interdict against the defenders interfering with the fences of the park, and an order to ordain them to remove such bestial as they had put thereon, and to leave it void and redd. Separate defences, the nature of which appears below, were lodged for Davidson and for the other defenders.
A proof was led. It appeared that the defenders were all owners of cattle, and that these cattle were tended by a herd employed by the township. The park in dispute was let by Major Fraser to MacLeod, and lay along the bank of a stream. Owing to the nature of the banks it was by far the most suitable place for watering cattle, and after a conference between the pursuers and the people in the township, it was arranged in July 1884 that the township cattle, 88 in all, might be driven through the park and watered, but should not be allowed to remain or graze in the park. Shortly prior thereto a body of persons unknown had broken down, violently and illegally, the wall of the park for a considerable distance, and it still remained broken down at the date of this action, it having in consequence of the disturbed state of the district been found impossible to get it mended. The township cattle were not, according to the permission, prevented from grazing in the park, but were allowed to graze not with standing the pursuer's remonstrances, and the park was eaten bare, and this action of interdict was brought. The pursuers averred, but failed to prove, that the defenders were guilty of the destruction of the wall.
The defender Mr Davidson, while denying that his cattle had been in the park longer than was necessary to pass through to the water, maintained that the park had formerly formed part of the ground on which his predecessor in the benefice had enjoyed the right of grazing as part of the common grazings, and that it had been taken away and no compensation given for it.
He pleaded—“(3) The park in question having formed part of the land on which the minister of Stenscholl was entitled to exercise the right of grazing, and the proprietor having illegally excluded the minister from said lands, he is not entitled to interdict against the present defender. (4) The pursuers, or those in whose right they are, having deprived the minister of Stenscholl of the right of grazing in Staffin Park, without making any provision in lieu thereof, or without his consent, or that of the Presbytery, they are not entitled to prevent the present defender, as incumbent of the Charge, from exercising the right of which his predecessor was improperly deprived.” He also pleaded (6) that the pursuers' statements as to him being unfounded in fact, he should be assoilzied.
The other defenders stated that the park in question had always formed part of the township grazings till they had a few years before given it up to Major Fraser, and that the effect of what had since been arranged between them was a restoration of their former rights. Their contentions fully appear from the following pleas which they stated:—“(3) The defenders having received the permission of the proprietor of the park in question, who is also their own landlord, to take their cattle through the park, and that permission having become a condition of their tenancy, and a part of their rights as tenants of the concurring pursuer, and the permission never having been withdrawn, or the right thereby conferred exceeded, the pursuers are not now entitled to the interdict craved for. (4) The permission given by the pursuer William Fraser to the defenders, his tenants, to water their cattle in, and to use the path through the field in question, being a part of the defenders' rights as his tenants, and being a restoration of part of their original rights as tenants of Garrafada, the pursuers are not now entitled to deprive them thereof by summary action of interdict.”
The Sheriff-Substitute ( Speirs) assoilzied Davidson but interdicted the other defenders as craved.
On appeal the Sheriff ( Ivory) found that Davidson had not established the right he claimed, that the other defenders had failed to implement the condition on which they were allowed to let their cattle pass through the park, and openly allowed them to graze in it. He therefore repelled the defences and gave decree of interdict against all the defenders.
They appealed to the Second Division, and argued—Major Fraser had given the tenants of the Garrafada township permission to drive their cattle through Staffin Park to the water, and that was all they did. It was impossible to prevent a herd of cattle going through a park from taking a bite of the grass, but that was all that had happened, and such a slight infringement of the loose verbal permission granted them did not entitle the pursuers to interdict. They did not now contend that they had any right to graze in the park, or to enter upon it except to pass through it for watering as Major Fraser had allowed them to do. This left only the question whether they had acted in violation of the pursuers' right, and on that question the Sheriff was wrong.
Their counsel put in this minute—“That they never claimed, and did not now claim, any right of grazing their cattle on the park in question called Staffin Park, or of entering upon the said park, except in virtue of and for the purposes specified in the permission granted by the pursuer Major Fraser on 5th July 1884, and that they will use due care to prevent their cattle grazing or encroaching on the park in question.”
Counsel however did not ask to have the claims stated upon record struck out.
The respondents' counsel was not called on.
At advising—
Page: 71↓
The rioters who broke down the wall have not been discovered, neither do I think it proved that the individuals who are called as defenders were participants in the destruction of the wall. But what we do find on the record is, that the defenders claim to have rights in this pasturage which are inconsistent with the case of the pursuer upon record. If these pleas remained upon record I think that would be quite enough to warrant interdict being granted. It is matter of everyday practice that a threatened charge may be suspended or a threatened encroachment prevented by means of an interdict. There is no better grouxsnd for granting interdict than that an encroachment has been threatened, and there can be no doubt that such an encroachment has been threatened on the part of the minister and the other defenders here. The Sheriff-Substitute has assoilzied Mr Davidson, but the Sheriff has directed interdict against him as well as against the other defenders.
On these grounds I think the judgment of the Sheriff ought to be supported. Mr Davidson's contention is quite clear. He says that the park in question formed part of the land on which he and his predecessors, as ministers of Stenscholl, were entitled to exercise the right of grazing, and that he had been illegally excluded from these lands. The other defenders say that the permission given by Major Fraser was merely a restoration of a right which they had formerly possessed. We are now told that all these pleas have been abandoned, but they were threats of encroachment and that was enough to justify interdict.
Without going into the evidence in the case, much of which is unpleasant, I think we ought to sustain the judgment of the Sheriff.
In regard to the use made of the permission given by Major Fraser on the 5th July, this permission was used as nothing but a pretext to allow the cattle to graze in the park when they were allowed merely to drive them through to the water, and it is necessary that the pursuers should be protected in this way. I agree with what your Lordship has said, and also with the grounds of judgment.
The Court pronounced this interlocutor:—
“Recal the interlocutors of the Sheriff-Substitute of 28th and 30th December 1885, and the interlocutor of the Sheriff of 23d February last: Find that the pursuer Major William Fraser is proprietor, and the pursuer Alexander MacLeod is tenant, of the field or park described in the prayer of the petition, and that the defenders assert right to graze their cattle in the said field, and to lead them through it to water in the Kilmartin river: Find that the rights so asserted are unfounded: Therefore repel the defences; interdict, prohibit, and restrain the defenders in terms of the prayer of the petition: Ordain the defenders within fourteen days from the date of this decree to remove such bestial as they have upon the said field, and to have the field made void and redd, that the pursuers, or others in their name, may enter thereto and peaceably possess and enjoy the same in time coming; and failing the defenders removing the said bestial, Grant warrant to the pursuers to carry the foregoing order into effect,” &c.
Counsel for Pursuers— D.-F. Mackintosh, Q.C.— Rutherfurd Clark. Agents— Skene, Edwards, & Bilton, W.S.
Counsel for Defenders— Scott— Rhind. Agent— William Officer, S.S.C.
