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Some oak trees, which formed part of a clump of natural wood belonging to Mr Buchanan, having been unwarrantably cut down by Malcolm, the former sued the latter in an action before the Sheriff of the county, for the penalties enacted by the statute of 1685, c. 39.
The judgment of the Sheriff was this: “In respect it appears, that the trees libeled were not planted trees, but grew in a natural wood, from stools or roots of trees that had been formerly cut, ordains the pursuer to instruct the value of the trees libeled, at the time of their being cut by the defender, and what value they might have risen to, had they been allowed to grow to maturity.”
The pursuer complained of the Sheriff's judgment by bill of advocation; which was “refused” by the Lord Ordinary on the bills. But he having reclaimed to the Court.
The Lords seemed to consider the above mentioned act of Parliament as not exclusively applicable to planted trees, but as likewise relating to natural woods; and accordingly they “altered the Lord Ordinary's interlocutor, and passed the bill of advocation.”
Lord Ordinary, Henderland.Act. A. Abercromby.Alt. Maconochie.Clerk, Home.
Fol. Dic. v. 4. p. 81. Fac. Col. No. 151. p. 236.
