Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PLANTING AND INCLOSING.
Subject_3 The Act 1661 not to be extended to the case of a conterminous Tenement, where the charges of inclosing would not be compensated by the resulting Improvement.

Charles, Earl of Peterborough,
v.
Mrs Mary Garioch

Date: 15 June 1784

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[Faculty Collection, IX. 242; Dictionary, 10,497.]

Hailes. The opinion of the visitors must be held just, for it was given at the desire of the parties, and nothing is offered to disprove it. They agree that, on some part of the march, there must be earthen fences. And one of them says, that, for the reparation of such fences, there will be required annually at least one-half of the prime cost. Now, it is speaking within bounds to say, that this reparation is equal to a complete fencing every three years. The statute certainly meant that there should be a permanent fence, and it never could have meant that one heritor should be burdened with a new march-dike every three years. If so, this case falls not within the statute, interpret it as liberally as you will. In the case of Riddel against the Marquis of Tweeddale, there was no doubt as to the practicability of making permanent fences: so that case does not go to this. And, in the case of Riddel, the most sanguine improvers on the Bench admitted that the law did not reach to flowmosses. Between them and mosses, which the proprietor does not propose to drain, there seems no difference.

Justice-Clerk. The statute in question is a salutary one, and attended with most beneficial consequences. The mutual benefit of heritors is intended; their equal benefit could not be provided for. A march-dike that cannot be completed is nothing. The visitors, named by the parties themselves, report that the plan proposed is not beneficial, and that it is impracticable.

Braxfield. The law was well calculated for the circumstances of the time, when there were no leases, or, at most, short ones. Now things are changed, and an heritor, whose lands are let on a long lease, may suffer severely, by paying for march-dikes, and yet receive no indemnification from his tenant; and therefore I am not for extending the law by a very liberal interpretation.

President. I remember that Lord Alemore thought that the statute in question was temporary. I did not think so; but I should have endeavoured to have been of that opinion, if the statute could have been extended to this case. [He quoted the case, Wilson against Sharp of Houstown.]

On the 15th of June 1784, “The Lords found that the Act of Parliament does not apply to this case, and therefore assoilyied, and found the pursuer liable in the expenses of report and extract.”

Act. Ilay Campbell. Alt. R. Blair.