Scottish Court of Session Decisions

By lease dated 24th and 25th February 1875 Peter Smith, of Newtonairds, Dumfriesshire, let to John Roddan, farmer, the farm of Steilston. Mr Smith died, and was succeeded by Mrs Agnes Eason or M'Cowan as

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proprietrix in liferent. The lease, inter alia, provided—“But saving and reserving to the proprietor from this let the exclusive right to the game, hares and rabbits on the lands hereby let, with full power to himself and those having his permission to hunt, shoot, and kill the same on the said lands, and in any turnip or potato crops thereon, without being liable in damages; … and it is agreed that there shall be no claim by the tenant for damages done by the rabbits on the farm in any one year unless the actual damage to his green and white crops exceeds ten pounds, but when it does exceed this sum, then the question of damages shall be referred to arbitration as after specified; … in all cases where in this lease matters are to be fixed by or referred to arbitration, it is understood and hereby agreed to betwixt the parties that it shall mean arbitration to two men mutually chosen, with power to them to name an oversman in the event of their differing in opinion, whose decision shall be final.”

In September 1888 Roddan in the Sheriff Court at Dumfries sued Mrs M'Cowan and her husband for £71, 13s. as damages for injury done to his crops by rabbits.

The pursuer pleaded—“(1) The pursuer being tenant under the defenders, and having had his crops injured by the game, hares, and rabbits on said farm of Steilston, in regard to which the defenders reserved the sole right of hunting, killing, or taking the same, he is entitled to compensation as craved. (2) The defenders having allowed the game, hares, and rabbits to increase to an undue extent on said farm of Steilston, and said game, hares, and rabbits being reserved to them in pursuer's lease, and pursuer having been interdicted from killing the rabbits on the said farm, and having been thus debarred from protecting his crops from injury thereby, he is entitled to reparation from defenders, and decree should be pronounced as craved, with expenses. (4) The defenders having all along been unwilling to submit the damage done on the farm of Steilston by rabbits to arbitration, in terms of the clause of reference in pursuer's lease, and the pursuer having sustained the damage condescended on, the present action has been rendered necessary, and decree should be pronounced as craved, with expenses.”

The defenders pleaded—“(1) The pursuer being bound by his lease to refer to arbitration the question of damage by rabbits in any one year when the same exceeds £10, this action, at least so far as regards the question of damage to the green and white crops, is excluded, and to that extent should be dismissed, with expenses. (2) The pursuer not having sustained damage to his green and white crops by rabbits to the extent of more than £10, the defenders are not liable to him in any sum therefor. (3) In any case, the defenders are not liable to the pursuer for any damage caused by rabbits to his grass lands.”

Upon 17th October 1888 the Sheriff-Substitute ( Hope) found in law “(1) that by the terms of said lease the extent of damage done on the farm falls to be fixed by arbitration; (2) that therefore this action is incompetent; therefore sustains the first plea-in-law for the defenders, dismisses the action, and decerns: Finds the pursuer liable in expenses,” &c.

On appeal the Sheriff ( Macpherson), on the authority of Ramsay v. Strain, February 6, 1884, 11 R. 527, recalled these findings, and found that “if it be proved that during the year preceding Whitsunday 1888 damage was done to the white and green crops on the pursuer's farm to the extent of upwards of £10 from excessive increase of rabbits, the pursuer will be entitled to damages for all the injury done to the farm by the said cause, and the amount of the said damage will fall, in terms of the lease, to be referred to arbiters mutually chosen;” and remitted to the Sheriff Substitute for further procedure.

Upon 2nd April 1889 the Sheriff-Substitute, after proof, found that damage was done to the green and white crops on the farm of Steilston by the rabbits to a value exceeding £10, and refused the prayer of the petition, leaving the parties to resort to arbitration.

After some further procedure the Sheriff, on appeal, in respect that it had been ascertained “that damage had been done to the green and white crops on the farm of Steilston during the year from Whitsunday 1887 to Whitsunday 1888 to a value exceeding £10 sterling, Finds that the parties are bound to refer to arbitration the amount of the pursuer's claim for damage done by the rabbits on the said farm during the said year, &c.

“ Note.—The pursuer's claim for damage will include the damage done by the rabbits on the said farm as well as to the white and green crops.”

Arbiters were ultimately appointed, and the Sheriff named an oversman, who issued this decree-arbitral upon 3rd January 1890, inter alia—“I find that damage was done by rabbits on the farm of Steilston during the year from Whitsunday 1887 to Whitsunday 1888 to the following amounts—(1st) To the turnip crop to the amount of £14,10s.; (2nd) to the rye-grass crop to the amount of £1, 4s.; and (3rd) to the grass lands to the amount of £16, amounting in cumulo to the sum of £31, 14s. sterling.”

Upon 13th February 1890 the Sheriff pronounced this interlocutor:—“Interpones authority to the decreet-arbitral; and in respect thereof, finds the defenders liable to the pursuer in the sum of £31, 14s.: Therefore decerns against the defenders for payment to the pursuer of the said sum, with the legal interest accrued since 15th September 1888: Finds the pursuer entitled to expenses, &c.

“ Note.—Practically the only question argued was whether decree should go out for the whole sum of damages ascertained by the decreet-arbitral to have been done to the farm by rabbits, or whether decree should be limited to that sum less £10. I have seen no reason to change the view I expressed in the interlocutor of 24th December 1888, that in the event of the damage done to certain crops on the pursuer's farm

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exceeding £10 the defenders would be bound to pay, in the words of the lease, for the ‘damages done by the rabbits on the farm,’ not merely for the excess of damage above £10. Not only is the lease antecedent in date to the Ground Game Act of 1877, but that Act specially limits its effect to leases of later date. The parties made a special bargain, and without some such clause as we have here the tenant would have been entirely at the mercy of the landlord, who had not only reserved the exclusive right of killing rabbits, but had also interdicted him.”

The defenders appealed, and argued—1. They were not liable for any damage done to the grass lands by rabbits. There was a question as to whether rye-grass could be considered a white or green crop, but as the value was very small the matter was not pressed. 2. If the tenant had suffered damage to the extent of over £10 to his white and green crops the only amount he could recover was the excess over £10. The £10 was the amount of damage which he contracted to suffer to his white and green crops without compensation, and therefore it must be deducted in any claim for damages.

The respondent argued — The Sheriff rightly sent this case to the arbiters after it had been proved that the damage amounted to more than £10, although no arbiters were named— Ramsay v. Strain, February 6, 1884, 11 R. 527; Waddell v. Governors of Stewart's Hospital, ante, p. 815, June 21, 1890. Even if there was a reservation of the game on the farm in favour of the landlord or the game tenant the agricultural tenant was entitled to damages for the injuries to his crop if the stock of game on the farm was excessive— Kidd v. Byrne, December 16, 1875, 3 R. 255. Under the clause in the lease the damage that was to be valued was the damage done to the whole farm. The £10 mentioned there was merely a test to see if the amount of damage was serious enough to make the parties undergo the expense of an arbitration. If under £10 it was to be settled by meetings between the landlord and tenant.

At advising—