Scottish Court of Session Decisions

This was an appeal against a judgment pronounced by the Sheriff of Dumfriesshire on a petition of interdict at the instance of Sir Alexander William Grierson of Rockhall, against John Kerr, tenant of the farm of Bluntfield and Hazlcshaw, belonging to the petitioner under a lease for 19 years, and which expires in 1873. The petition sets forth that soon after the respondent's entry to said farm the petitioner put the houses and fences into a tenantable state of repair, and expended considerable sums in feuing and drainage. It alleged that the respondent had mismanaged the cultivation of the farm, failed to uphold the houses, to protect the fences, and to uproot the whins; and that he had burned the heather to the injury of the game. By these alleged acts it was said that the farm had been greatly deteriorated. The following is the prayer of the petition:—“May it therefore please your Lordship to appoint a copy of this petition, and of the deliverance to follow hereon, to be intimated to the respondent in common form, and in the meantime to interdict the respondent and all others in his name from further, at his own hand, burning any part of the remaining heather on the said high lands on the said farm of Bluntfield and Hazleshaw, and, on again advising, to declare the interdict permanent; and further, to remit to a qualified person, or qualified persons, to visit and inspect the said farm and the farm buildings and fences thereon, and to report as to the respondent's alleged mismanagement of the said farm, and as to the state of the buildings and fences thereon, and as to the consequent damage to the petitioner arising therefrom, and from the reckless burning of the heather, and also as to what is necessary and proper still to be done in fulfilment of the stipulations in the said memorandum of agreement; and to ordain the respondent forthwith to execute all operations that may be deemed to be necessary and proper to be done in the premises; and in the event of the respondent failing to reside on the said farm during the remaining period of his lease, and to execute the operations foresaid, and manage the same properly, to appoint a qualified person to reside thereon and manage the said farm at the respondent's risk and expense during that period; and to give such further directions or orders, or to do otherwise in the premises as to your Lordship shall seem proper; and further, to find the respondent liable in the damage caused to the petitioner by the respondent's said mismanagement and reckless conduct, and decern therefor, and to find the respondent liable in expenses.”

The respondent, in his defence, denied the statements contained in the petition. Thereafter a remit was made to Mr Jardine, Government Inspector of Drainage, to inspect the farm, and report as to the alleged mismanagement. Mr Jardine, inter alia, reported that he considered the respondent had generally managed the farm in accordance with the memorandum of agreement, but suggested that he should clear the farm of whins during the remaining three years of the lease, and not burn any more heather. The Sheriff-Substitute (HOPE) gave effect to Mr Jardine's report, and, of consent, granted interdict against burning more heather on said farm, and quoad ultra sustained the defences, and found the petitioner liable in modified expenses.

The following is the note added to the Sheriff-Substitute's judgment;—

“ Note. —The first point to be decided is the effect to he given to the report by Mr Jardine. From the authorities lie has seen, the Sheriff-Substitute thinks that it is binding on the parties so far as it disposes of the points remitted. The petitioner, who applied for it, maintains that it is not; but it is difficult to see how he could be held as not consenting to the remit, seeing that he not only prayed for it in the petition, but made a motion to the same effect. The fact that the report is not to his mind will not annul his judicial consent. The respondent has consented also, although the procurator who was acting for him temporarily when the motion was made did not feel justified in consenting at that time. The latest writer on Sheriff-court practice says—‘The proper evidence of the consent of parties is a minute. There appears, however, no absolute necessity for that, provided the consent be otherwise apparent. —(Wilson, p. 177). It may be assumed that the respondent's procurator, who consented to or acquiesced in the remit when he heard of it, would have done the same if he had been present when the motion was made.

“In these circumstances, the report would seem to be binding. The Act of 1853 is very explicit; —‘ It shall be competent to the Sheriff to remit to persons of skill, or other persons, to report on any matter of fact, and where such remit shall be made of consent of both parties, the Sheriff shall hold the report to be final and conclusive with respect to the matter of such remit.—(£ 10). The only points which the report has enabled the Sheriff-Substitute to decide are the question of the heather burning (as to which it is not necssary to say anything, as the respondent has consented to the interdict being made perpetual), and that of the state of a certain field. It is plain that if the respondent is not using the farm as an arable one he is bound to lay it all down in grass.

Page: 641↓

“The petitioner having given up the question of damage in this petition, and the lease being so nearly at an end, it does not seem expedient to allow a proof to be gone into about the fences, houses, and whins. The petitioner has delayed too long in making this complaint if the respondent has been as much in fault as is alleged, and besides, if the question of damages is to be raised at the expiry of the lease, these matters must be gone into then in a different action. The respondent has an opportunity before then of fulfilling any obligation incumbent upon him, and perhaps no further proceedings will then be thought necessary by the landlord.

“The petitioner having given up so much of his case, and the interdict as to the burning of heather proceeding upon a report that more burning is not expedient, and not that the burning hitherto has been contrary to the lease, as set forth in the petition, it seems proper that the petitioner should pay modified expenses.”

The petitioner appealed to the Sheriff ( Napier), who adhered to his Substitute's judgment, and dismissed the appeal.

The petitioner further appealed.

Fraser and Johnstone for him.

John Marshall and M'Kie in answer.

The Court, without calling on the counsel for the respondent, unanimously dismissed the appeal, with costs. The Court expressed a strong opinion that a tenant should not be harassed with actions of this nature.