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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lovat v. Fraser and Others [1870] ScotLR 7_573 (25 June 1870)
URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0573.html
Cite as: [1870] ScotLR 7_573, [1870] SLR 7_573
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SCOTTISH_SLR_Court_of_Session
Page: 573↓
Court of Session Inner House First Division.
v.
Facts:
A complainer who had asked for interdict in respect of two alleged infringements of his proprietary rights, latterly insisted only in one branch of the prayer of his note; and to the granting of interdict as thus restricted no opposition was offered. Held he was only entitled to one-half of his expenses.
This was a suspension and interdict at the instance of Lord Lovat to have the respondents, who are resident in the town of Beauly, in Inverness-shire, interdicted from entering upon certain lands belonging to the complainer, and cutting and taking away grass therefrom. The lands in question extend along both sides of the river Beauly, are covered with grass, and formed by the erection of embankments. They are held by Lord Lovat as proprietor of and duly infeft in the lands' and barony of Lovat, in which they are comprised. Upon various specified occasions the respondents had, the complainer said, gone upon these lands and cut and carried off large quantities of grass. The respondents pleaded access to, and use of, the lands for forty years and upwards, and also the exercise of cutting and carrying off grass, &c., during all that time. The Lord Ordinary ( Jerviswoode) granted the parties respectively a proof, before answer, of their averments.
The respondents reclaimed.
Thoms and Rhind for them.
Solicitor-General and Rutherford in answer.
After some procedure the complainer modified the prayer of his note for interdict. Originally it was in the following terms:—“May it therefore please your Lordships to suspend the proceedings complained of, and to interdict, prohibit, and discharge the said respondents from unlawfully entering or in any way trespassing upon the complainer's lands of Barnyards, Tomich, and the carse lands of Beauly, situate in the parishes of Kilmorack and Urray, and county of Inverness; and the complainer's lands of Wester Lovat, situate in the parish of Kirkhill, and county of Inverness; and from in any way interfering with the complainer and his tenants in the peaceable possession and enjoyment of his said lands in any manner of way, and from cutting and taking away grass from the said lands, or any part thereof, or to do otherwise in the premises as to your Lordships shall seem proper.”
The complainer now asked the Court only “to interdict, prohibit, and discharge the said respondents from cutting and taking away grass” from the lands mentioned. The complainer was only allowed half of his expenses, as he had asked for
Page: 574↓
interdict from trespassing on tire lands and cutting the grass, and had now given up one-half of what he had asked for.
Agents for Complainer— Gibson-Craig, Dalziel & Brodies, W.S.
Agent for Respondents— W. Officer, S.S.C.