Scottish Court of Session Decisions

John William Byrne of Elshieshields, in the county of Dumfries, let in 1871, upon a lease of seven years, the Holm Farm of Elshieshields to Gilbert Gillespie. The farm of Chapelcroft, upon the same estate, had been let to Mr William Kidd in 1864 upon a fifteen years' lease. Both Gillespie and Kidd were taken bound by their leases to preserve the game (rabbits and hares included) upon their farms. In November 1872 Mr Byrne let to Mr Robert Johnson, for the period of five years, the mansion-house, grounds, & c., of Elshieshields, together with the exclusive right “of hunting and shooting, sporting, killing game and rabbits, &c.” Johnson bound himself to maintain a fair stock of game and rabbits, and to exercise his right of shooting in a sportsman-like manner.

During the years 1873–4, complaints were made to Mr Byrne by the agricultural tenants of the damage done to their crops in consequence of the excessive stock of rabbits which they alleged

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was maintained upon the estate of Elshieshields. On 10th December 1874 both Kidd and Gillespie brought actions against Byrne, the one concluding for £200, and the other for £124, in name of damages. To these actions defences were lodged by the landlord, who, inter alia, pleaded that they should be conjoined with actions of relief at his instance against the game tenant Johnson. Two actions of relief were brought by Byrne against Johnson in February 1875.

Proof in the four actions was led before Lord Craighill. It appeared from the proof that there had been a great increase in the number of rabbits upon the farms, and that much damage had been done. The game-tenant had interdicted the agricultural tenants from shooting the rabbits. Upon 25th June 1875 his Lordship issued interlocutors finding for the tenants in their actions against Byrne, and awarding to Kidd £110 and to Gillespie £65, as compensation for the injury done to their crops, while in the actions of relief, at the instance of Byrne against Johnson, he gave decree against the latter for the sums awarded to the agricultural tenants, and for the expenses of the whole four actions.

The following are the findings in law and the note of the Lord Ordinary in the actions of relief:—

Edinburgh 25th June 1875.—The Lord Ordinary having heard parties' procurators on the closed record, proof adduced, and productions, and considered the debate and whole process, in the first place, finds, as matter of law, that the defender, as game tenant on Elshieshields, under the lease set forth in the record, is not entitled to keep on Elshieshields, or on any of the farms of that estate, more than a fair average stock of rabbits; and, on the contrary, that it is an implied condition of the said lease that should the defender keep more than a fair average stock of rabbits on the said estate, or on any of the farms thereof, and the pursuer in consequence be subjected in damages for injury caused to the crops of his tenants or others by this excess, the defender is bound to relieve the pursuer of these damages.

Note.—The defender is game tenant of Elshieshields, and is now sued by his landlord for relief of the damages claimed from the latter by Kidd and Gillespie, two of his agricultural tenants. The question is, whether the present defender is answerable for the consequences of the alleged injuries to the tenants' crops, even on the assumption that damages must be rendered by the landlord? The answer, as the Lord Ordinary thinks, depends, in the first place, on the view to be taken of the defender's rights as game tenant-Can he increase or preserve rabbits to any extent, whatever may be the consequences to the landlord? Or is his right, so far as it can be exercised without responsibility to the landlord for the consequences, subject to an implicit condition that the stock, one year or one period with another, shall not exceed a fair average stock? The latter is the view which the Lord Ordinary has adopted, and upon which the finding as to the law of the case in the foregoing interlocutor has been pronounced. The answer to the cardinal question depends, secondly, on whether the stock of rabbits on Chapelcroft, as well as on the Holm farm of Elshieshields (Gillespie), the tenant of which is also suing his landlord for damages, was only a fair average stock, and not an excessive stock in 1873 and in 1874? As to this a long proof has been led. Kidd and Gillespie, the pursuers of the actions for damages, the present pursuer, who is defender in these actions, and the present defender, were all present and took part, and the conclusion to which the Lord Ordinary has been brought is, that the stock was far in excess of that which was a fair average stock. There may be cases in which it is necessary to guage what is a fair average stock as between a landlord and his agricultural tenants as compared with that which is a fair average stock as between that same landlord and his game tenant. But the present, as the Lord Ordinary thinks, is not one in which such a necessity exists, because in his opinion the stock of rabbits exceeded such a fair average stock as either landlord or game tenant was entitled to maintain without answering for the consequences. Probably it is not necessary, but nevertheless it may be right, for the Lord Ordinary to explain that his attention was called, and has been directed, to the cases that have been decided, and especially to the decision in Inglis v. Moir and Gunnis, 7th December 1871, 10 Macph. 204. The Lord Ordinary thinks that his view of the law, as set forth in the first finding of his interlocutor, is neither contradicted nor foreclosed by anything which was said or done in the case just mentioned, or in any other decision. Had he thought otherwise, the judgment he has given would not have been pronounced.”

Byrne reclaimed against the interlocutors in the two first actions, and Johnson against those in the two latter.

Argued for the landlord—Where one tenant injures another, no claim arose against the landlord. The injury to the agricultural tenants had arisen from a violation by the game tenant of the obligations of his lease. There was an implied obligation upon him not to allow the rabbits to exceed a certain number. It was against him, therefore, that the tenants should go for redress, or otherwise he was bound to relieve the landlord of their claims.

Argued for the game tenant—There was no violation of the conditions of his lease; and he was under no obligation to relieve the landlord of claims made by tenants for damage by game or rabbits.

Argued for agricultural tenants—The landlord was the proper party against whom to bring their actions, there being no contract between them and the game tenant.

Auhorities—Hunter's Land, and Ten. i. 521; Henderson and Thomson v. Stewart, June 23, 1818, Hume 522; Caledonian Railway Co. v. Greenock Sacking Co. and Clyde Sugar Refining Co., May 13, 1875, 12 Scot. Law R ep. 443; Drysdale v. Jameson, Nov. 30, 1832, 11 Sh. 147; Wemyss and Others v. Wilson, Dec. 2, 1847, 10 D. 194; Broadwood v. Hunter, July 19, 1855, 17 D. 1139; Morton v. Graham, Nov. 30, 1867, 6 Macph. 71; Inglis v. Moir's Tutors, Dec. 7, 1871, 10 Macph. 204.

At advising—