Scottish Court of Session Decisions

As to game other than rabbits having destroyed the barley, there is no statement on the record as to any game other than rabbits, and the document called an award upon which they found speaks of rabbits alone as the destroying animals. The Sheriff therefore reads the action as truly one for destruction caused by rabbits. As to vermin there is no specification, and it is not explained what species of vermin destroyed the barley, or how the defender is liable for the depredation of animals falling under that designation. Indeed it is not stated what animals the pursuers mean by the word ‘vermin.’

Under the lease which is founded on by the pursuers, and has been produced, the defender reserved the game on the farm except ‘rabbits, which the tenant or his sons shall have liberty to destroy, but not to allow poachers or unqualified persons to come upon the land.’

This gave the tenant a right to destroy rabbits in any way, except that it was not to be used as a pretext for allowing poachers to come on the land. The pursuers therefore had ample power to destroy rabbits, and they might have done so either by themselves or by persons employed by them for that purpose. The defender came under no obligation by the lease to do so.

It is said, indeed, that the lease terminated at Whitsunday 1872, and that although the pursuers had right to the way-going crop, this did not allow them to go on to the lands. But this is a mistake. They had a right to go on to the lands for all purposes necessary to and connected with the growth, preservation, and reaping of their away-going crop; and if it was necessary for its preservation to go on to the lands for the purpose of protecting it from the depredation of rabbits by using lawful means for their destruction, or by persons employed by them for that purpose.

The fact alleged, that the pursuers sold their away-going crop to the incoming tenant, makes no difference so far as regards the defender.

It is not alleged that he was a party to that transaction, and his obligations or liabilities cannot be affected by it. Besides, that did not prevent the pursuers, or their assignees, the incoming tenant, from destroying the rabbits on the farm, so far as necessary for the protection of the away-going crop, just as under their lease they could do.

But it is not said that the barley referred to in the action was destroyed by rabbits on the farm of Littletonlees: on the contrary, it is said to have been destroyed by rabbits ‘on the lands of Crailing, belonging to the defender,’ which rabbits, it is said in the condescendence, came from a fox cover, and also from the policies and plantations of the defender outside the farm.

The action is not laid on contract. It must therefore be founded on fault or culpa of the defender. What is the culpa? It is said to be the failure to kill the rabbits when requested to do so. But unless there was a legal obligation on the defender to kill the rabbits or vermin on his own lands, there could not he any culpa in his not doing so.

Now it is nowhere laid down, and the Sheriff knows of no principle in law for holding, that a proprietor is bound to kill all the wild animals, such as” rabbits wood pigeons, or the like, which breed naturally on his lands, under the sanction that if he fail to do so he is to be liable for all the food which they may consume on the neighbouring lands.

What might be the case if a proprietor, after letting part of his estate to an agricultural tenant established in its immediate neighbourhood, on his own lands and for his own profit, a rabbit warren which did not exist before, or greatly increased by protection or other artificial means the quantity of rabbits usually existing on his estate, is unnecessary to consider. Nothing of that kind is alleged in this case.

It is not said that the defender either introduced rabbits for the first time during the months of May, June, July, August, and September 1872, or that he then used any means to increase the previously existing stock of rabbits on the land. The statement in the summons and record comes to nothing more than this, that the defender did not kill the rabbits which bred on his lands so as to prevent them from going on to the neighbouring lands. The pursuers do not allege that by law an obligation to that effect lies upon him, and the Sheriff knows of no authority for such a proposition.

The pursuers' contention, upon which the whole summons is based, comes to this, that every proprietor upon whose estate rabbits or other game or vermin breed is liable if he allows them to exist for all the food which they may consume on the lands of a neighbouring proprietor or farmer. If this were law, then the proprietor would be liable for the corn consumed by wood-pigeons, or for the poultry carried off by foxes whose holes were in his lands. In short, it is not easy to see a limit to the consequences of such a proposition. The Sheriff cannot adopt or affirm such a proposition, for which no authority is given, or exists, so far as he knows. And he therefore has no hesitation in in at once assoilzieing the defender from the action as irrelevant.

The pursuers' liability for expenses necessarily follows.”

The pursuers appealed to the Court of Session.

Authorities— Gatherer v. Cumming's Exs., 6 Macph. 379, and Lord President there; Inglis v. Moir's Curators, 10 Macph. 274, and Lord Justice-Clerk there.