Scottish Court of Session Decisions

Circumstances in which the Court held it to be inexpedient to pronounce judgment in certain declaratory conclusions, on the ground that they were more fitly dealt with in an Inferior Court, if the rights sought to be declared were infringed.

From 1854 to 1856 the defender, Alexander M'Neel Caird, occupied the house and grounds of Genoch, belonging to Colonel M'Douall, of Logan, whose law-agent the defender has been for many years. In 1856 the defender obtained a lease of the premises “for five years from Whitsunday 1856, at the yearly rent of £40 sterling, viz., Genoch House, grounds, and offices, game, fishings, and pertinents as heretofore possessed by the said Alexander M'Neel Caird, with the addition of the garden, orchard, and the premises and pertinents occupied by the gardener and under-gardener, the lodge, and grounds behind it, and ground between sheep park and public road, with the rabbits in these grounds (which have not been in use to be let with the grass lands). The landlord to keep the buildings externally in repair, and replace any inner wood-work that from decay may be or become unsafe or untenantable.… Liberty is reserved for Colonel M'Douall or any member of his family, or any friend in company with him or them, or any friend staying at Logan House and having Colonel M'Douall's permission, to hunt, shoot, aid fish in or upon the lands hereby set. Mr Caird to have possession of the Dovecot Park during the currency of this lease, on condition of his expending, during currency of said lease, twenty-five pounds sterling in top dressing said park with bone-dust,” &c., &c. Certain other stipulations were contained in the lease, which was continued for five years by agreement dated 25th April 1860. On 14th January 1865 a memorandum of renewal was executed, which bore inter alia that “Mr Caird takes, and Colonel M'Douall lets to him, (1) the Blackground and Nine Acres, at £2 sterling per

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Scotch acre—Colonel M'Douall making the drains therein work; and (2) Culmanbog, at the rent of £22, 10s. per annum. The lease of these is to be for nineteen years from Whitsunday 1866, and Mr Caird is to have immediate possession of these fields, paying in proportion for the time of his occupancy till Whitsunday 1866. (3) In the lease with these, and for nineteen years from Whitsun-day 1866, are also included the houses and whole lands, game, and others, as heretofore possessed by Mr Caird, and at the present rents; also the possessions occupied by James Thorburn, William Fowler, Mrs Linwood, the Martins, and vacant house at the Square, at the rents at present derived therefrom. Mr Caird is also to have the farm-offices at Genoch, and Colonel M'Douall is to put them into a satisfactory state—Mr Caird paying 6 1/2 per cent, interest on his outlay, and leading the tiles and paving-stones necessary. Colonel M'Douall reserves right to take clay from any part of the lands, allowing deduction for all land cut up or injured, until the same shall be filled up and made as good as it was before. And in the extension of the existing lease the plantation from the lodge to Droughdool Bridge is to be reserved. And Mr Caird is to kill out the rabbits in the ground behind the lodge, and not use the same for pasturing cattle. And, under the new lease, Mr Caird is to keep the buildings which were included in the original lease in repair; they being first put in good order, the expense of which is to be equally borne. (4) Mr Caird is not to preserve rabbits so as to increase them unduly; and if he does, Colonel M'Douall may send a person to kill them, on giving a week's notice on each occasion before doing so. (8) The conditions in the former lease as to top dressing the Dovecot Park, and as to the expenditure of £80 by Mr Caird in improvements, have been fulfilled, and, with the stipulation as to gardener's services, are discharged.”

Disputes having arisen between the parties, proceedings were instituted in the Sheriff-court of Wigtonshire, in the course of which a remit was made for examination and report on the drains, and this action was brought in the Court of Session by M'Douall, concluding “that under the memorandum of lease entered into between the pursuer and defender, dated the 14th January 1865, the pursuer is not bound to lay down new drains or to construct a new system of drainage on the lands called the Black-ground, and the nine acres let to the defender by the said memorandum of lease, nor to erect new buildings at the farm offices of Genoch, but that the pursuer's sole obligation in reference thereto was to put the drains which existed in the said lands at the date of the said memorandum of lease in working order, and to put the farm-offices then existing in a satisfactory state, and further, that the pursuer's obligations to that effect were not exigible until the term of Whitsunday 1866: And further, it ought and should be found and declared by decree foresaid that the pursuer was not and is not bound to put in a satisfactory state, or into a state of tenantable repair, the houses or possessions on the said estate, described in the said memorandum of lease as the possessions occupied by James Thorburn, William Fowler, Mrs Linwood, the Martins, and vacant house at the Square; but that the defender is bound to put and maintain in repair the said possessions, and the house, garden-houses, and houses, not being farm-houses, on the lands let to him, and that the pursuer is not liable for the expense of I such repairs, except to the extent of £10 sterling; and further, it ought and should be found and declared by decree foresaid that the defender has no right to shoot or otherwise kill or take game or rabbits on the plantation between Genoch Lodge and Droughdool Bridge, reserved to the pursuer by the said memorandum of lease, and the defender ought and should be interdicted, prohibited, and discharged by decree foresaid from shooting or otherwise killing or taking game on the portion of the said estate not possessed by him under the said memorandum of lease, and from shooting or otherwise killing or taking game or rabbits on the said plantation; and it ought and should be found and declared that the pursuer or any member of his family, or any friend in company with him or them, or any friend staying at Logan House and having the pursuer's permission, have right and liberty to hunt, shoot, and fish on the lands over which the defender's right under said memorandum of lease of hunting, shooting, and fishing extends: And it further ought and should be found and declared by decree foresaid that the pursuer, as proprietor of the said estate of Genoch, has right to kill or destroy the rabbits thereon; and that the defender has no right to shoot, or otherwise kill, or take rabbits on the said estate, excepting and reserving his right to destroy rabbits on the lands let to him by the said memorandum of lease to the extent necessary for the protection of his crops and the due cultivation of the said lands; And the defender ought and should be interdicted, prohibited, and discharged from shooting, or otherwise killing or taking rabbits on the said estate, except to the extent foresaid: And further, it ought and should be found and declared by decree foresaid that the pursuer has right to the woods and plantations on the estate of Genoch, and is entitled by himself, or his servants, or others with his written authority, to thin the said woods and plantations when necessary, and to remove branches and brushwood there from; and to sell the said trees, branches, and brushwood, or otherwise dispose thereof as he may think proper, and to pasture cattle, and cut the grass in the said woods and plantations, and on the river banks on the estate of Genoch; And it should be found and declared that the defender has no right or title to the said woods or plantations under the said memorandum of lease, and that he has no right or title to cut trees, or remove shrubs, branches, or brushwood from said woods and plantations without the pursuer's consent, nor to take wood there from, excepting and reserving the defender's right to get from the pursuer wood from the plantations of Genoch so far as may be necessary to maintain fences and bridges on the lands let to him; and that he has no right to pasture cattle or cut grass in the said woods or plantations, or on the river banks, or on the ground behind the lodge of Genoch, being part of the lands let to the defender: And the defender ought and should be interdicted, prohibited, and discharged from cutting or removing the said trees, shrubs, branches, or brushwood from the said woods or plantations, or removing wood therefrom, excepting and reserving the defender's foresaid right to get from the pursuer wood for the said fences and bridges, and from pasturing cattle or cutting grass on the said woods, plantations, or river banks, or ground behind the lodge: And further, it ought and should be found and declared by decree foresaid that the defender has no right to rear, feed, or keep poultry, geese, guinea-fowls, tame or silver pheasants, peafowl,

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and other domestic or domesticated birds in the woods and plantations of the estate of Genoch; and the defender ought to be interdicted, prohibited, and discharged from so rearing, feeding, or keeping the said birds in the said woods and plantations: Further, it ought and should be found and declared by decree foresaid that the defender has no right to occupy or possess, or to convert into cottages or otherwise alter, the mill in the corner of the sheep-park known as the Old Mill, and he ought to be interdicted, prohibited, and discharged from so possessing or interfering with the said Old Mill: Further, it ought and should be found and declared by decree foresaid that the park called the Dovecot Park, being part of the estate of Genoch, is not included among the subjects let to the defender by the said memorandum of lease, and that the defender has no right to occupy or possess the said park or otherwise, and if it shall be held that the said Dovecot Park does form part of the subject so let to the defender, it ought and should be found and declared by decree foresaid that the defender is bound to pay to the pursuer therefor during the currency of his lease a yearly rent of £15 sterling, or such other rent as shall be ascertained to be the true and just rent thereof; And it further ought and should be found and declared by decree foresaid that the annual rent payable by the defender during the currency of his present lease, for the lands or field called Long-riggs, being part of the estate of Genoch, amounts to the sum of £71, 8s. sterling: And further, it ought and should be found and declared by decree foresaid that the defender is bound, in the cultivation of his said lands, to conform to conditions and regulations for the cultivation of the pursuer's estates, contained in a general form of lease prepared by the defender as the pursuer's agent, except in so far as the said conditions and regulations are inconsistent with the said memorandum of lease, and that he is liable to pay the proportion of supply, road money, and schoolmaster's salary falling on the said lands in terms of the said general form of lease.”

The Lord Ordinary (Kinloch) pronounced this interlocutor:—

17 th July 1868.—“The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the proceedings, conjoins with the present process a process of advocation between the same parties now before the Lord Ordinary, and advocated by interlocutor of this date: In the declarator finds and declares that, according to the sound construction of the minute or memorandum of lease between the parties, dated 14th January 1865, the pursuer is not bound to construct a new system of drainage on the Black-ground and Nine Acres fields, but is bound to put the drains existing on the said fields at the date of the said minute into efficient operation, even though at a cost exceeding that of reparation strictly considered, and involving a certain amount of new construction in the way of providing sufficient outfall or otherwise, whether within the said fields or beyond the same: Further, finds and declares that, according to the said minute or memorandum of lease, soundly construed, the pursuer is not bound to take down the then existing farm offices at Genoch, and to erect a wholly new farm-steading, but is bound to put the whole of said farm-offices into a tenantable and sufficient state, even though the cost of doing so should be greater than that of simple reparation, and should involve a certain amount of rebuilding or new erection: Finds and declares that the pursuer's obligations aforesaid took effect as at the date of the said minute or memorandum of lease: Finds and declares that by the said minute or memorandum of lease the pursuer let to the defender for the same space of time as the Black-ground, Nine Acres and Culmanbog, thereby leased, the house of Genoch, grounds, offices, and others, with the game, fishing, and other pertinents, as the same were possessed by the defender at the date of the said minute or memorandum as tenant of the pursuer under certain previous leases, but under exception of the plantation from the lodge to Droughdool Bridge, which was thereby reserved to the pursuer: And finds and declares that the defender had thereby conferred on him a right to shoot rabbits, not merely over the lands of which he became agricultural tenant, but over the whole grounds over which he had the right of shooting the same under his immediately previous lease of Genoch house and pertinents; but subject always to the qualification that the defender was not to preserve rabbits so as to increase them unduly, and that if he did so the pursuer should be entitled to send a person to kill them on giving a week's notice on each occasion before doing so: In the advocation, recalls the interlocutors of the Sheriff complained of, and decerns, and appoints the cause to be enrolled in order that the preceding findings may be carried duly into effect, and also the other points in the case disposed of by means of such inquiry or evidence as may be suitable.”

Both parties reclaimed.

Watson and Gloag for M'Douall.

Clark and Balfour for Caird.

The Court, on 18th December 1868, pronounced this interlocutor:—“Recall the interlocutor of the Lord Ordinary submitted to review, except in so far as it conjoins the advocation with the declarator: In the advocation, remit to the former reporter, Alexander Jardine, to report—(1) Whether the drains in the Nine Acres field could have been made to work efficiently by means of the old outfall, or without the new outfall recommended by and executed at the sight of the reporter; and (2) What was the cost of making the new outfall, and what would have been the expense of putting and keeping the old outfall in proper working order: Appoint each of the parties to lodge in process by the third sederunt day in January a plan, specification, and estimate of the operations which he considers necessary to put the farm offices at Genoch into a satisfactory state, in terms of the obligations in the lease: In the declarator, allow the pursuer a proof of the possession by the defender as tenant under the lease dated 28th March 1856, and the renewal thereof, dated 28th April 1860, in so far as regards the shooting of rabbits by the defender as tenant, and to the defender a conjunct probation, and oppoint the said proof to be taken before Lord Deas on a day to be afterwards named by his Lordship, reserving in the meantime all questions of expenses.”

A proof was taken, and counsel were heard thereon.

At advising—