Scottish Court of Session Decisions

Messrs Merry & Cuninghame, coal and ironmasters, Glasgow, raised an action in the Sheriff Court at Hamilton, against William Aitken and other miners at Blantyer, praying the Court to interdict the defenders from “entering or trespassing” upon any portion of the lands of Bardykes, Spittal, or Mavishill, or any of the private roads therein, so far as the said lands or roads were occupied and possessed by the pursuers in connection with their colliery known as Bardykes Colliery, and to grant interim interdict.

The facts of the case were as follows:— The pursuers were tenants of the colliery known as Bardykes Colliery near Blantyre in virtue of a thirty-one years' lease dated in 1879. By the said lease powers were conferred on them, inter alia, to make and use the roads necessary for their workings under the lease, to build workmen's houses, and to take and occupy any portions of the surface required for the above

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purposes. The pursuers erected on land taken under the lease workmen's houses, which they permitted their employees to occupy. Between 150 and 170 miners out of 400 employed in the colliery occupied these houses. The houses were approached by a private road branching off from the public road between Cambuslang and Blantyre. The land taken under the lease included the site of this private road. A gate leading to the coal mine was situated upon the private road between the miners' houses and the public road.

The defenders were members of a Trade Union called the Blantyre Miners Association. After the close of the coal-miners strike in November 1893, the officials of the Bardykes Colliery used their influence with the miners in their employment to get them to break through what was called by the Miners' Union “the five days policy,” and to work six days a week. Before this, it had been customary in the Bardykes Colliery, in common with the whole collieries in the district, for the miners to be idle on Saturdays.

In order to counteract the action of the colliery officials twenty or thirty members of the Blantyre Miners' Association, including certain of the defenders, went down to the colliery as pickets between 3 and 4 a.m. on Saturday 23rd December. The defenders led evidence to show that they had gone to the colliery on the invitation of the miners living in the colliery houses, but the Court held that the evidence was insufficient to prove this. The pickets were met at the junction of the public road and the private colliery road by the colliery officials, who told them that the road was private and that they had no business there. The pickets, however, marched past the officials down the private road to the gate leading to the coal mine. There they met the men coming from the houses and endeavoured to persuade them to abstain from working. There was no rioting, and no violence was used or even language of a threatening nature. The evidence of the pursuers' general works manager was to the effect that, when the miners came up to the pickets, the latter accosted them with “Do you not know that this is an idle day?” and if any miner walked on the pickets said, “You are a low mean cur.” The pickets succeeded in turning some of the men, but the colliery worked that Saturday. On 6th and 20th January similar proceedings took place, others of the defenders being present as pickets. The action was brought in order to exclude the pickets from the colliery roads and grounds.

On 19th January the Sheriff-Substitute ( Davidson) granted interim interdict, and on appeal by the defenders the Sheriff ( Berry) adhered on 20th February.

After proof the Sheriff-Substitute, on 15th November 1894, continued the interdict formerly granted, and continued it as long as the pursuers continued to be in occupation of the subjects in respect of which interim interdict had been granted.

“ Note.—I cannot say that I think the proof in this case has made any material difference to the position of parties. The pursuers have established their title, and the defenders have led evidence to show that the road on which they are said to have trespassed is the only road to certain houses inhabited by the pursuers' workmen, and that these workmen, or some of them, invited them to the ground. As to the rights of the people who live in these houses over this road, I am not called upon to give an opinion; what is involved or included in the right of access it would probably be difficult to say. But it is clear to me that they can have no right to invite others, not to their houses, but to private grounds of the pursuers, to perform acts which, whether legal or illegal, are a source of annoyance to the latter. I am not sure that such an invitation is proved to have been given, but even if it were, it could give the defenders no title to trespass on ground merely because such ground was a road, and happened to be the access to the workmen's houses. I think the pursuers have established their right to interdict, so long as they are in the occupancy of the subjects, against those of the defenders who confessedly trespassed, and who in their pleadings have averred and maintained a right to do so.”

The defenders appealed to the Court of Session, and argued—(1) The defenders had not trespassed on the property of the pursuers. They had a perfect right to be there. They came at the invitation of the miners inhabiting the pursuers' houses. Even if no direct invitation was proved, the pickets were there with the approval of the miners, and that was tantamount to an invitation. (2) Even if the defenders had no right to be there, interdict was not the appropriate remedy. The maxim, De minimis non curat praetor applied. Interdict was only granted in cases where an actual and serious wrong had been done, which either was likely to be repeated, or had been continued down to the period of complaint. Here no appreciable wrong had been set forth. There had been no disturbance, only an interchange of opinions by a few men on a roadside— Hay's Trustees v. Young, January 31, 1877, 4 R. 398; Winas v. Macrae, June 3, 1885, 12 R. 1051. (3) If it was a case for interdict, the terms of the interdict were too wide. It would prevent any of the defenders going to visit the miners in the pursuers' houses, or going there for any purpose whatever.

Argued for pursuers—They were entitled to say that this road was private and belonged to them, and to prevent anyone coming upon it for the purpose of obstructing persons in their employment. The pickets were not for the purpose of visiting the mines, but in order to persuade them to the pursuers' prejudice to abstain from work. The form of interdict was taken from the Juridical Styles, and was the one always used in questions of trespass. They were quite willing, however, to amend the prayer of their petition so as to make the interdict only apply to trespass.

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The pursuers moved to amend their petition by striking “entering or” out of the prayer.

At advising—