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The act 1661 not to be extended to the case of a conterminous tenement, where the charges of in-closing would not be compensated by the resulting improvement.
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The Earl of Peterborough, as proprietor of an estate situated in Kincardineshire, preferred to the Sheriff of that county a petition, setting forth his intention of inclosing his grounds, in order to improve them: and praying, the Mrs Garioch, on conterminous heritor, might, in consequence of the statutes of 1661, cap. 41. and 1685, cap. 39. be found liable in a half of the charges of the march-fence. Mrs Garioch made answer, that her property, though of large extent, was mountainous and barren, and yielded but a small rent; and of course, that the expense of the proposed inclosure of lands, which could not be meliorated by that operation, would, however little her more opulent neighbour might feel it, be a burden far too heavy for her circumstances to bear.
The Sheriff having “found that the act 1661 did not apply to the case.” Lord Peterborough brought that judgment under review, by advocation.
Pleaded for the pursuer; The object of the act of Parliament of 1661, was not so much the private emolument of individuals, as the benefit of the public at large. This appears by the declaration contained in the preamble of that statute, and is illustrated by its subsequent tenor. Hence the statute has not directed Judges to enquire into the comparative advantage immediately resulting from inclosure to the parties concerned; nor has it authorised them to determine, whether, in particular cases, equity might oppose the effect of a law framed for a national purpose. If, therefore, one conterminous proprietor be desirous to improve his grounds, the other will not be permitted to with-hold his share of the expense of inclosing, however contrary that measure may be to his inclination, or even to his interest. Thus, though that expense would, to an heritor who had already set his lands in lease for 99 years at a fixed rent, be just so much certain loss; yet, without regard to his peculiar circumstances, even he, under the authority of the statute, has been found liable to contribute. The present case, far less favourable on the part of the defender, is similar to that of Riddel contra Marquis of Tweeddale, No 14. p. 10489. 5th December 1769, determined on the principles stated above.
Answered; That argument represents the statute in question in a singular light; as framed by a wise legislature, not for the benefit, but the oppression or the ruin of its subjects, Such, in a considerable degree, would be the consequence of enforcing its application to the present case. No lawyer, however, has thus interpreted that law; and Mr Erskine, in particular, observes, that it ought never to be so extended as to become ‘a cover for oppression,’ B. 2. tit. 6. § 4. The case of Riddel contra Marquis of Tweeddale is no example to the contrary; for there, of two tenements, the inclosing of one only yielded mutual advantage, and to that the judgment of the Court was confined.
This question was reported by the Lord Ordinary.
The opinion of the Court was, that this act of Parliament ought to be interpreted as respecting cases in which mutual, though not therefore equal advantages were to accrue to the conterminous tenements; and as in no instance authorising an act of oppression, or of injustice to any individual. Accordingly,
The Lords sustained the defence.
Reporter, Lord Gardenston.Act. Lord AdvocateAlt. Blair.Clerk, Orme.
Fol. Dic. v. 4. p. 80. Fac. Col. No 155. p. 242.
