Scottish Court of Session Decisions

It is clearly proved that the pursuers requested the defender to roll in the seeds, and that they never acquiesced in his not doing so. From his own evidence it appears that he intended to roll it, but that, being afraid of his corn seed being blown away, he told his grieve not to do it, and said to him, ‘they will make me pay a small price for not rolling it, but I cannot help it; better that than lose the crop’ He also admits that he never intimated to the pursuers his intention not to roll the ground; and his agent, in his letter of 4th January 1871, No. 45 of process, wrote to the pursuers' agent that so satisfied was the defender of the injurious consequences likely to result from rolling the ground ‘that he says he would have interdicted your clients if they had attempted it’

It is proved that the proper time for rolling light land where there is risk of the seed being blown away is after the corn crop has brairded, and the defender did not prove that he was prevented by stormy weather from rolling the ground after the corn had brairded. It was also proved that during his own occupation of the farm it was his general practice to roll the ground after the corn and grass seeds were sown.

The defender adduced a number of skilled witnesses to prove that the soil was so light that harrowing in the grass seeds was quite sufficient, and rolling was not required to make them germinate. But the Lord Ordinary considers that the evidence of the witnesses who were on the farm and saw the land at the time is entitled to greater consideration than the evidence of skilled witnesses who did not see the ground at the time the seeds were sown. Now, it was clearly proved by several of the witnesses who were on the farm at the time that owing to the dirty state of the land there were a good many clods, that the grass seeds which fell on these clods did not germinate in consequence of not being rolled in, and that there were in consequence a considerable number of bare patches where these clods were. For the loss thence arising, the defender is, in the opinion of the Lord Ordinary, responsible.

The pursuers claim a very large amount of damages, not only on account of the loss arising from the want of grass on these bare patches, but also on account of the loss sustained through the ground being occupied by stones, and on account of the loss which they allege they sustained by being prevented by these stones, and by the clods, from cutting and making a crop of hay in the summer of 1871. The Lord Ordinary considers that the defender is not liable for any loss which may have arisen by reason of the ground being covered with stones, or for the loss alleged to have been sustained by the pursuers having been prevented by the stones and clods from cutting and making a hay crop. The defender was under no obligation to remove the stones, and their presence, it is proved, effectually prevented a hay crop from being taken. Further, it is proved that if the pursuers had removed the stones between the harvest of 1870 and the spring of 1871, and rolled the ground in the spring of 1871, as is the usual and common practice of farmers intending to take a hay crop, they could have made the ground perfectly fit for cutting and making hay. But the pursuers did not do so, and they never spoke to anyone of their intention to make hay from the grass, except to their own grieve, whom the pursuer Donald M'Intyre asked, in the spring of 1871, whether he did not think it would be a good plan to fence off a bit of the ground to make hay, and who pointed out about 12 acres of it, which he says was the only part suitable for a hay crop. Although this part of the ground could easily, and at small expense, have been freed from stones, and rolled, and cut, they did not attempt to do so, and never again spoke to their grieve about it. Further, it is proved that the land in question was so poor that, with the exception of these 12 acres, it would not grow a hay crop which would have remunerated the pursuers, and that if they had attempted to take a hay crop off the whole ground, instead of pasturing it, they would have sustained a considerable loss.

According to the view which the Lord Ordinary takes of the proof, the only loss which the pursuers sustained in consequence of the defender's failure to roll the ground arose from the grass seeds which fell on the clods not germinating. There is considerable discrepancy in the statements of the witnesses as to the extent of the ground which was occupied by clods, and upon which in consequence the grass seeds did not germinate. The pursuers' skilled witnesses included in their estimate of damage the ground occupied by stones as well as clods; and it was proved that about two-thirds of the ground on which there was no grass were occupied by stones. Keeping this in view, the Lord Ordinary, after careful consideration of the proof, is of opinion that the loss and damage sustained by the pursuers on two years' grass, in consequence of the defender's failure to roll the ground in which the pursuers' grass seeds were sown, will be fully made good by the sum of £25.

The defender attempted to show that the failure of grass was partly owing to the pursuers having mixed an insufficient quantity of clover with the ryegrass. But there was a full quantity of ryegrass seed sown, and these grass seeds germinated and produced a good crop of grass in the whole ground, with the exception of the parts occupied by the clods and stones. The failure to roll the ground, and the quantity of stones on it, made the cutting of the corn crop difficult, and occasioned loss in the ingathering of that crop. But this away-going corn crop belonged to the defender. The pursuers took it at a valuation, and it is proved by one of the valuators and by the oversman that they gave the pursuers the large allowance of 13s. 6d. per acre on account of the increased difficulty of cutting and harvesting thereby occasioned.”

Against this interlocutor the defender reclaimed.