Scottish Court of Session Decisions

This was a suspension and interdict brought by Sir Robert Menzies of Menzies, Bart., against Mrs Macdonald, innkeeper, of the Macdonald Arms, Kinloch Rannoch, seeking to interdict and prohibit the respondent, “her servants, friends, guests, lodgers, family, and dependants, or others in her name and employment, or acting under her authority or permission, or as in her right, from entering, landing, or in any way trespassing upon any part of the lands adjacent to, and the islands situated in the lake or loch, called Loch Rannoch, in the shire of Perth, forming part of the estate of Rannoch, the property of the suspender, and also from drawing nets or boats upon, or landing oars or nets or fishing implements, or tackle, or any other articles upon, or in any way making use of the said lands or islands;” and praying their Lordships “to find the respondent liable in expenses.”

The note was passed without caution, and interim interdict granted. The record was closed upon the reasons of suspension and answers, and the parties were heard in the procedure roll, when the Lord Ordinary ( Mackenzie) pronounced an interlocutor of this date, October 28, 1870, allowing the parties a proof of their averment on record, in respect that, although the complainer was willing to renounce probation,

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unless the complainer consented to her being found entitled to expenses.

The facts of the case, so far as necessary to explain the present point at issue, were these. Sir Robert Menzies is entail proprietor of the lands and others on the north side of Loch Rannoch, and of the islands on the same, and claims exclusive use and possession. Mrs Macdonald succeeded her husband Alexander Macdonald, who died some years ago, as tenant of the Macdonald Arms Inn, upon the estate of Kinloch, under Lady Macdonald. As such tenant, Mrs Macdonald has the right and privilege of keeping and using boats upon the loch. In the year 1857, Sir Robert Menzies had occasion to take out an interdict, which was allowed to pass in absence, against the said deceased Alexander Macdonald, much in the same terms as that now sought for against his widow.

Notwithstanding this, Sir Robert averred that on the 8th June last a boat belonging to, or in the lawful possession of the respondent, which was on Loch Rannoch with the knowledge and sanction and in charge of her servant, Hugh Cameron, and having therein besides the said Hugh Cameron, two gentlemen who were lodgers at Mrs Macdonald's inn, put into a small bay adjacent to the complainer's lands, on which the two gentlemen landed with their fishing tackle and implements, and returned to the inn by land, while the boat went back to the inn in charge of the said Hugh Cameron. Their landing was aided and effected by the said Hugh Cameron, for whom Mrs Macdonald is responsible. The proceedings complained of were done to the great annoyance of the complainer, and injury to his rights and privileges under his titles, and he consequently submitted that he was entitled to interdict as craved, with expenses. The respondent, Mrs Macdonald, on the other hand, denied that the said Hugh Cameron was in any way her servant, or that he was in any way amenable to her, or she responsible for him, on the contrary, he was engaged and paid by the two gentlemen alleged to have committed the trespass. She farther asserted that she was not present on the occasion in question; that she had, in the knowledge that Sir Robert had formerly taken but an interdict against her husband as aforesaid, cautioned the gentlemen before starting to avoid landing upon Sir Robert's shore; that they had been farther cautioned by the said Hugh Cameron not to land, but that she believed they had found themselves obliged to land from stress of weather. She also averred that Sir Robert was in this proceeding merely seeking an occasion to obtain interdict against her, in terms thus broad and general; that she did not oppose interdict, but she cannot be made responsible for the future conduct of unnamed parties, to whom such interdict may be meant to apply, provided she continues to warn all and sundry not to land on Sir Robert's ground, and she pleaded that “the complainer's right to his property, and right to prevent trespass upon it, having never been called in question, or in any way violated by the respondent, she is entitled to expenses in this case.”

Against the Lord Ordinary's interlocutor the complainer reclaimed.

Adam for him.

Macdonald, for the respondent, stated—If Sir Robert Menzies thinks it for the advantage of his estate to obtain an interdict, I am willing that he should have it on paying expenses. If he will not do so, I submit I am entitled to a proof.

At advising—