Scottish Court of Session Decisions

This was an action by Alex. Irvine, gardener, Hawkhill, against Thomas Field, proprietor of the

Page: 382↓

lands of Hawkhill, concluding for £150 of damages for wrongous ejectment. The pursuer alleged that by a lease, dated the 2d day of March 1868, the defender let to James Kinloch certain portions of the lands of Hawkhill belonging to him, for a period of ten years from and after the term of Candlemas 1868. By the said lease assignees and sub-tenants were excluded, but it was arranged and agreed to between the parties that Mr Kinloch was to be allowed to subset to the pursuer any part of the ground let. It was further stipulated in said lease that the defender could at any time resume possession of said ground for feuing purposes, he being bound to give the tenant three months' notice for removal of crops. After Mr Kinloch's entry under the said lease he sublet to the pursuer a portion of ground leased to him by the defender. It was agreed that the sub-lease should extend to the same period as the lease in favour of Mr Kinloch, the pursuer being bound to give up possession in the event of the ground being required by the defender for feuing purposes, on getting the same notice as Mr Kinloch.

The defender feued the ground, and the pursuer alleged that the understanding and agreement between them was that the pursuer was to continue possession of the ground until it should be required by Mr Dougall, the feuar. The pursuer alleged that he had prepared and manured the ground for the summer's crop, and the same was all planted prior to 3d May 1870. On or about that date the defender, without any previous notice or intimation, or applying for or obtaining any judicial authority, illegally and unwarrantably took possession of the said ground and crop thereon, and violently ejected the pursuer from the possession thereof brevi manu.

The Lord Ordinary ( Ormidale) approved of the following issue:—

“Whether, on or about the third May, Eighteen hundred and seventy, the defender wrongfully ejected the pursuer from a portion of the lands of Hawkhill, then occupied by the pursuer as a market-garden, and took possession of the crop thereon belonging to the pursuer, to the loss, injury, and damage of the pursuer.

Damages laid at £150.”

The defender reclaimed.

Robertson, for him, contended that in an action of damages for wrongous ejection it was necessary that a title of possession should be set forth by the pursuer ( Macdonald v. Chisholm, 22 D. 1075), and that here there was no relevant averment of a title on which the pursuer could have maintained himself in possession. A verbal lease was not good against a singular successor even for a year, and a verbal arrangement with the defender's author, whom the defender did not represent, was the only title stated. The defender was entitled to take possession of the ground of which he was proprietor, and the price of any crop of the pursuer he might have injured by so doing could not be recovered in an action of damages.

Strachan was not heard in reply

At advising—