Scottish Court of Session Decisions

Subject_1 GAME.

James Colquhoun
v.
James Buchanan, and Others

Date: 6 August 1785
Case No. No 5.

Distinction between hunting foxes for the purpose of sport, and the pursuit of these animals by farmers for the preservation of their flocks.

The farmers were found entitled to enter inclosures.

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James Buchanan, and other farmers his neighbours, having traversed the fields, and gone over the fences belonging to Mr Colquhoun, in pursuit of foxes, were, on a complaint entered by him, found liable by the Sheriff of the county in the penalties annexed, by the statute 1685, to “the breaking down or filling up any ditch, hedge, or dike, whereby ground is inclosed,” and to “the leaping, or suffering horse, nolt, or sheep, to go over any ditch, hedge, or dike.”

The defenders preferred a bill of advocation, justifying their proceedings as necessary for the protection of their sheep; when, in support of the judgment of the Sheriff, Mr Colquhoun

Pleaded; It is now a fixed point, that landed gentlemen, qualified to hunt, may not, even in the pursuit of foxes, or other noxious animals, enter the inclosures of any proprietor without his consent, Marquis of Tweeddale contra Hugh Dalrymple and Others, No 3. p. 4992. The security of owners of land, in the undisturbed and exclusive use of their property, was justly deemed more essentially connected with the general welfare, than the destruction of foxes, though accomplished by men to whom it had been permitted by the legislature as an amusement, and who, at the same time, were possessed of a fortune sufficient to insure an indemnification to those whose grounds they might occasionally injure. It cannot then be imagined that a distinction is to be made in favour of the defenders, to the effect of encouraging idleness and dissipation in the lower ranks, and of affording to them a pretence of breaking into inclosures, and committing damage which they are utterly unable to repair. Indeed, to obviate a distinction apparently so inconsistent with the genius of our law, it would be sufficient to observe, that the statute on which the defenders have been condemned, is general, and admits not an exception from motives of utility, in favour of any class of men whatever.

Answered; The statute 1685 was not made to convert the acts therein specified, into delinquencies in every case, but to restrain, by an additional sanction, such proceedings as were before punishable as trespasses at common law. In no case, therefore, can the penalties be due, where the entry into the ground, or breaking into the inclosures, though not permitted by the owner, is yet in its own nature lawful, or even merely justifiable. Hence they could not be demanded from one who, in pursuing a mad dog or a thief, had entered the lands of another, whether inclosed or not. And to the same principle must be referred the custom of extirpating foxes in the manner here followed, as has been immemorially done in those parts of Scotland where the employment of the inhabitants consists in rearing sheep, or other animals liable to be destroyed by foxes. It is indeed so clearly grounded in natural reason, as to be observed even among those European nations where, besides the prohibition arising from the rights of landed proprietors, the animals known under the denomination of game, are protected as a part of the royal prerogative, or exclusively appropriated to persons of the highest rank. Perezius, lib. 11. tit. 44.; Blackstone, book 3. chap. 12.

It seemed to be admitted by the defenders, that they were obliged to repair any damage occasioned by them; and by the pursuer, that his inclosures had not been hurt at this time.

The Lord Ordinary sustained the reasons of advocation, and found expenses due. After advising a reclaiming petition for Mr Colquhoun, with-answers for the defenders, the Lords unanimously adhered to that judgment. And they refused a second reclaiming petition for Mr Colquhoun, without answers.

Lord Ordinary, Monboddo. Act. Baillie. Alt. Cullen. Clerk, Sinclair. Fol. Dic. v. 3. p. 248. Fac. Col. No 228. p. 354.