Scottish Court of Session Decisions

John Fullerton Patrick, residing at The Cairnies, Glenalmond, Perthshire, was the tenant of the mansion-house, shootings, and fishing in the river Almond, of The Cairnies, for a period of five years from Whitsunday 1900, at a rent of £105, under a lease granted in his favour by Colonel Thomas Marshall Harris, of Glenalmond, and Alexander Mackenzie, solicitor, Perth, the trustees of the deceased Colonel Henry William Harris of The Cairnies. The shooting right was described as “all rights and privileges of the shooting and sporting, and of killing, preserving, and taking game of every description (including hares and rabbits) upon the lands and estates of The Cairnies … but subject to the provisions of the Ground Game Act 1880.”

On the 2nd March 1904 Patrick raised an action against Harris's trustees, in which he sought, inter alia, to have it declared that the fences round the plantations were ineffectual to exclude live stock, that his rights to the game were thereby seriously affected, and he was deprived of the undisturbed possession to which he was entitled, and to have the defenders ordained to have the fences repaired so as to exclude live-stock. Upon this point he made the following averments:—“(Cond. 8) The plantations referred to vary in size, but are all of importance to the value of the shooting over The Cairnies. Without the said plantations it would be much depreciated. It depends very greatly on the extent to which the said plantations remain undisturbed. They cover about one-third of the whole area of the said shooting. When the pursuer took the shooting, the lands adjoining the said plantations were let by the defenders as an arable farm, and the fences surrounding them were sufficient to keep out sheep and cattle. In November 1901 the said lands were let to a sheep farmer. The fences round the whole of the said plantations, with the exception of a strip to the north of

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the road from the Tulchan March to the College Road, and another beside the College Avenue, are now in such a state of disrepair that they are entirely useless for keeping out sheep. In some places they are lying flat on the ground. Sheep, with which the farm is mainly stocked, are constantly in the plantations, and have to be driven out by the farmer's men with dogs. Sheep and cattle belonging to the occupiers of the lands, belonging to neighbouring proprietors also, stray in the plantations. The plantations form no part of the farmer's holding, and formed no part of that of the previous agricultural tenant. The dimensions of the two strips, the fences of which are in passable repair, are inconsiderable relatively to the remainder of the plantations. Sheep have found their way from the plantations into the policies, and grazed on the lawn in front of the mansion-house. (Cond. 9) The disturbance to the game caused by stock and by men and dogs, as condescended on in the preceding article, is very great. The value of the pursuer's shooting has been depreciated, and will continue to be so more and more every year while the plantation fences remain in their present state of disrepair. While they remain so the pursuer is deprived of the undisturbed possession of the right of shooting to which he is entitled under the lease.”

Upon 29th June 1904 the Lord Ordinary ( Pearson) issued an interlocutor whereby he allowed a proof.

Opinion.—… “The second conclusion relates to the tenant's shooting rights, which are alleged to be seriously impaired through the plantation fences being in such a state of disrepair as to be insufficient to exclude live stock. The defenders challenge the relevancy of the pursuer's averments on this head, on the ground that the personal right of sporting does not carry with it any right to interfere in the proprietor's management of his estate; and reference was made to the case of Gearns v. Baker, 10 Ch. 355, by way of illustration. In my opinion no such general doctrine can be laid down. In order to ascertain whether the facts alleged amount to a breach of contract, it is necessary in each case to have regard to the contract as a whole, and to the surrounding circumstances, and applying this test, I hold that the pursuer has made averments on this head which are relevant to go to proof. In particular, I refer to the averments in Cond. 8—(1) that the value of the shootings depends greatly on the extent to which the plantations remain undisturbed; (2) that when the pursuer became tenant the fences in question were sufficient to keep out cattle and sheep from the plantations; (3) that the plantations did not then, and do not now, form any part of the farmer's holding; and (4) that the plantation fences are now in such disrepair as to be entirely useless for keeping out sheep, and that the defenders have refused to make them good. Accordingly I think there must be a proof on this part of the case.”

The defenders reclaimed, and argued—The Lord Ordinary should have dismissed this portion of the case. There was no relevant averment of a right to have the plantation fences maintained, and no such right was implied in a lease of shootings. Admittedly the landlord could not derogate from the right given; but the right given was the exercise of the privilege of shooting, which was subject to the general administration of the estate— Gearns v. Baker, 1875, L.R., 10 Ch. 355. It was not said that anything had been done wilfully against the pursuer's rights, but only that in the course of ordinary management the fences had been allowed to fall into disrepair. And if in the ordinary administration it had been decided to pull up the fences and throw the plantations open for grazing, the pursuers would have had no ground of complaint.

The respondents argued—The Lord Ordinary was right in allowing a proof, for the question turned on the circumstances of the case. Ordinary administration differed in different circumstances— Pattison v. Gilford, 1874, L.R., 18 Eq. 259; Aldin v. Latimer, Clark, Muirhead, & Co. [1894], 2 Ch. 437; Hall v. Ross, 23rd June 1813, 5 Paton 729. And the shooting tenant was entitled to interfere where, as here, the landlord was derogating from the right he had given. The plantations here covered a third of the estate, and while the rent might be small, the loss entailed on the tenant through the expense of having a gamekeeper and rearing pheasants might be great.