Scottish Court of Session Decisions

This was an action of damages at the instance of George Syme, tenant of certain farms in the parishes of Aberdour and Dalgety, and county of Fife, originally directed against the Right Hon. John Stuart Earl of Moray, heritable proprietor of the said lands; the ground of action being alleged injury to the pursuer's crops on the said lands, in the year 1865, by the unreasonable and excessive stock of game kept thereon, wrongfully and by the fault of the defender.

It appeared that the pursuer's brother, Robert Syme, had become tenant of Meikle Couston and Muirton Park under minutes of agreement dated in June 1853, and tenant of Chesters and New Kirk Parks under minutes of agreement dated February 1855; and that, on Robert Syme's death in 1858, the pursuer had entered on possession of the lands as tenant, acknowledged by the defender. The pursuer had become tenant of the Barns Farm and of Hattonhead Park under verbal agreements of lease dated in 1859 and 1862 respectively. The pursuer alleged:—

“ Cond. 8. When the said deceased Robert Syme became tenant of the lands mentioned in articles 1 and 2 hereof, as also when the pursuer succeeded him as tenant of these lands, the stock of game and rabbits thereupon did not exceed a fair average stock; nor was there above a fair average stock of game and rabbits upon the lands mentioned in article 5 hereof when the pursuer became tenant of these lands. The said Robert Syme and the pursuer entered into the said leases, and agreed to pay the rents thereby stipulated, on the faith and in reliance that the said stock of game and rabbits would not be increased, or at least not materially increased, and, in particular, that it would not be increased to an excessive and destructive extent.

Cond. 9. At the dates when the first-mentioned leases were entered into, and thereafter down to about the years 1860 or 1861, the game was kept for the sport of the landlord and his friends, and no unusual means were taken to increase its amount. But within the last few years the defender has not lived at Donibristle, and the game has since been bred and dealt with exclusively as a marketable commodity. Its amount has, by careful preserving and unusual means employed by the defender, or those for whom he is responsible, been wrongfully increased to a very great extent beyond a fair average stock, and the defender has annually realised large sums by selling it. The defender has of late years regularly fed the pheasants until the pursuer's crops were sown and ready to afford them food. In particular, the game, especially hares and pheasants, has within the past three years increased enormously beyond the stock which existed on the said lands at the dates when the said Robert Syme and the pursuer respectively entered into and took up the leases above mentioned, and agreed to pay the rents thereby stipulated, and which rents have since regularly been paid. The rabbits have also increased to some extent.”

The pursuer proposed the following issue:—

“It being admitted that the defender was during the year 1865, and still is, proprietor of the lands of Meikle Couston and Muirton Park, in the parishes of Aberdour and Dalgety, as also of the lands of Chesters and Kirk Park, Hattonhead Park, and Barns Farm, also in the parish of Dalgety; and that the pursuer was during the year 1865, and still is, tenant of the said lands under the pursuer:

Whether, during the year 1865, or any portion thereof, the defender wrongfully kept upon the said lands, or any part thereof, an unreasonable and excessive stock of game and rabbits, to the loss, injury, and damage of the pursuer?

Damages laid at £270.”

The Lord Ordinary ( Barcaple) reported the case, with the following note:—

“The defender does not dispute that an action may lie at the instance of an agricultural tenant against his landlord for damage done by undue increase of game, but he maintains that the pursuer's averments in the present case are not sufficient to entitle him to an issue. He contends that it is necessary for the pursuer in such a case to aver that there has been a material change in regard to the mode in which game has been dealt with on the lands, and that the increase complained of has been brought about by artificial means. The Lord Ordinary doubts whether either of these contentions can be maintained consistently with the judgments in previous cases; and, at all events, he is of opinion that articles 8 and 9 of the Condescendence contain sufficient averments on these points. The parties were not at one as to the precise ground on which such a claim is to be sustained—whether upon contract or on the ground of a wrong done to the tenant as possessor of the farm. The former view seems to be countenanced by the authorities, and the claim to be put upon the ground of implied obligation by the landlord to warrant the tenant in the beneficial possession of the land. If this is the true view of the relative position of landlord and tenant in this matter, it may possibly support the claim, even where there has been been no preserving, or other means used to increase the game, and where all ordinary means have been used to keep it down, if it has nevertheless increased owing to strict preserving on a neighbouring estate, or any other cause, which cannot be attributed as a wrong to the landlord. On this point the Lord Ordinary expresses no opinion. The defender maintains that, if there is to be an issue, the damages should

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be scheduled with reference to each separate possession. The Lord Ordinary understands that the pursuer does not now insist on including the alleged increase of rabbits in his issue. The only averment in regard to them is, that they have increased ‘to some extent.’”

The defender having died, the action was transferred against his executors.