Scottish Court of Session Decisions

William Cadzow, the pursuer of this action, which concluded for £600 of damages, was tenant of two farms on the estate of Lee, of which the defender Sir Simon Macdonald Lockhart was proprietor, having succeeded to his brother Sir Norman in May 1870. The pursuer became tenant of one of the farms, viz., East Nemphlar, at Martinmas 1857 as to arable land, and at Whitsunday 1858 as to the houses and grass. The term of the lease was nineteen years, and the rent £155. In the lease, dated 9th and 15th May 1858, there was the following reservation:—“Reserving also to the proprietor and his foresaids the sole right to the whole game and fish of every kind within the lands hereby let, with full power to himself and to those having his permission to hunt, shoot, or fish and sport on the farm without liability in damages; and the tenant shall be bound to preserve the game of all kinds to the utmost of his power, to interrupt poachers and unqualified persons, and to give information of them to the proprietor and his foresaids, or those acting for him or them; and it is hereby expressly declared and agreed that the tenant shall have no claim whatever for any damage he may sustain from game, hares, or rabbits during the lease, this being held to have been calculated upon and allowed for by him in offering for the farm.”

The pursuer became tenant of the other farm, viz., West Nemphlar, at Martinmas 1862 as to the land under crop, and at Whitsunday 1863 as to the houses and grass. The lease was for seventeen years, and the rent was £54. In this lease the game clause was as follows:—“Reserving also to the proprietor and his foresaids the sole right to the whole game, including hares and rabbits of every kind, and to all the fish in the rivers and burns within the lands hereby let, with full power to himself and to those having his permission to hunt, shoot, or fish and sport on the farm, without liability in damages; and the tenant shall be bound to preserve the game of all kinds, including hares and rabbits, to the utmost of his power, and to interrupt poachers and unqualified persons, and to give information of them to the proprietor and his foresaids, or those acting for him or them; and it is hereby expressly declared and agreed that the tenant shall have no claim whatever for any damage he may sustain from game, hares, and rabbits during the lease, this being held to have been calculated upon and allowed for by him in offering for the farm.”

The two farms adjoined one another and extended along the Clyde, a strip of ground belonging to the defender, and covered with copse and brushwood, being interposed between them and the river.

The pursuer averred, inter alia—“At the dates of the leases foresaid there were few or no rabbits on the said farms or in the said strip of ground mentioned in the last article. For a number of years back, however, and in particular since the succession of the present defender in the year 1870, the said strip of ground has been turned into a rabbit preserve; and in consequence the pursuer's farm has been so infested with rabbits as to make the profitable occupation of his land impossible. The stock of rabbits in said strip of ground and in the pursuer's farms has been unduly and unreasonably increased year by year by the defender's predecessor and by the defender; and the said increase has been permitted and fostered for purposes of profit, the proprietor having for many years derived, and still deriving, a large annual revenue from the rabbits on his estate, and in particular from the rabbits on and adjacent to the pursuer's farms. From the date of the defender's succession to the present time the pursuer has suffered loss, injury, and damage from the foresaid undue increase of rabbits on his said farms to the extent of not less than £120 per annum, or in all £600, as concluded for in the summons. From the year 1871 inclusive the pursuer has had said damage carefully ascertained and estimated every year.” It was alleged by the pursuer that “he had not ceased to complain to the defender, or those representing him, of the injury sustained,” and that he had intimated to his landlord the claims of damage which he was now seeking to enforce. In consequence of the loss thereby sustained, the pursuer's rents from Whitsunday 1870 had not

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been paid in full, and a large balance was due to the defender.

The defender denied that he had allowed the rabbits to increase for the purpose of profit, and alleged that he had trapped them on the pursuer's farm to prevent damage, and that they were not more numerous than at the pursuer's entry. He further denied that the pursuer had made any complaints of injury.

A proof of these averments was allowed, the purport of which, so far as material to the case, sufficiently appears from the opinions delivered by the Judges,

The Lord Ordinary thereafter pronounced the following interlocutor:—

“Having considered the cause, finds that by the leases under which the pursuer holds his farms there was reserved to the proprietor the sole right to the whole game, including hares and rabbits, within the lands thereby let, with full power to himself, and those having his permission, to hunt, shoot, and sport on the farms ‘without liability in damages,’ and the pursuer became bound to preserve the game of all kinds, including hares and rabbits, to the utmost of his power, and that it was thereby ‘expressly declared and agreed that the tenant shall have no claim whatever for any damage he may sustain through game, hares, and rabbits during the lease, this being held to have been calculated upon and allowed for by him in offering for the farm.’ Finds it proved that during the years from 1870 to 1874, both inclusive, there was a great increase of rabbits on the pursuer's farms beyond the number which had formerly existed, or might reasonably have been expected, assuming that ordinary measures for keeping down the rabbits had been adopted: Finds that this increase arose in consequence of the failure of the defender the landlord by shooting, trapping, or otherwise, to keep down the number, and that the pursuer's crops suffered considerable damage in consequence; but finds that the pursuer is not entitled to payment of the sum claimed, or any part thereof, on account of damage so caused, in respect of the stipulations contained in his leases above set forth, and especially of the stipulation that he should have no claim whatever for any damage he might sustain from rabbits during the lease. Assoilzies the defender from the conclusions of the action, and decerns: Finds him entitled to expenses, and remits the account thereof, when lodged, to the Auditor to tax and to report.

Note.—[ After narrating the facts.]—At the debate, at the close of the proof the defender, renewed the discussion which had taken place in the Procedure Roll when a proof was ordered, founded on his second plea, to the effect that all claims of damages for injury done by rabbits to the pursuer's crops are excluded by the terms of the leases; and with the facts now fully disclosed in the evidence I have come to the conclusion that this plea is well founded. When the argument was originally maintained, before any proof had been allowed, it appeared to me that the legal question involved could not be satisfactorily disposed of on the pursuer's averments as contained in the record. The terms of article 6th of the condescendence seemed to make it necessary that evidence should be allowed; for the statement there made is that the defender from 1870 onwards had made use of a strip of property belonging to him, adjoining the pursuer's farms, and which did not appear to be connected with them, in a manner which the pursuer could not have anticipated when he entered into his leases, by having turned this ground into a rabbit-preserve, in which he had gradually increased the stock of rabbits by carefully fostering them, for purposes of profit. If this averment were proved, it appeared to me a special case might be established to which the clause excluding claims of damage would not, or at least might not, apply. I do not think, however, that a case of this special character has been established.

Without going in detail into the evidence which has been adduced at considerable length, I may shortly state what appears to me to be its result.

1. It has not been established that a rabbit preserve or warren was created by the defender on his property adjoining the pursuer's farms, nor that during the period for which damages are claimed rabbits were designedly preserved and fostered by the defender on the pursuer's farms, or the plantations within them, or which formed the boundaries, with the view of making profit.

2. On the other hand, I think it is equally clear that, owing either to neglect on the part of the defender's servants, viz., his gamekeepers and trappers, or from the insufficient number of these servants at times when trapping was required, there was during at least the four years from 1870 to 1874, both inclusive, a great increase of rabbits, and that a serious amount of damage consequently resulted to the pursuer's crops. The plan of the farms produced, which is admittedly correct, shews that the boundary, which extends to a considerable distance along the side of the river Clyde, consists of plantations, which are all of considerable age, varying from a strip comparatively narrow to one of considerable breadth; and in addition to these several plantations of some extent run into the farm, and particularly into the parks called Orchard Park, Hakespie-hill, Level Park, and Waterside Park. The increase of rabbits was allowed to take place in the cover thus afforded, and the extent of the increase and consequent injury to the pursuer's crops has been proved to have been, in my opinion, much beyond what the pursuer could reasonably have contemplated when he entered on the farms; and indeed the injury has been so great during several years as to render it impossible for the pursuer to pay the stipulated rent from the produce of the farms. If I were of opinion that the pursuer was entitled under his leases to damages for the injury to his crops arising from an excessive increase of the stock of rabbits beyond the stock on the farms when he entered into possession, and the number which might naturally be expected to arise from the plantations or the farms—assuming that fair and ordinary measures were taken to keep them down—I should hold that the pursuer had made out a claim for the years from 1870 to 1873 inclusive, and would have estimated the damage for each of these years at from £50 to £60, which it will be observed is about a-fourth of each year's rent. By the year 1874 such measures had been taken to reduce the numbers that I am not prepared to say there was then an excessive stock in the sense now explained. The evidence of the pursuer as

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to the large increase of rabbits, and the consequent injury to his crops, has been corroborated by neighbouring farmers and others, who also support his estimate of the damage sustained, by some of the gamekeepers and trappers examined, and particularly by the witness Fair, and by the returns of rabbits killed on the estate. This last evidence, which the pursuer could scarcely have anticipated he would be able to adduce, shows how little was done in keeping down the rabbits during the years following 1869, and until the end of 1873, when the evil was to a large extent removed, and materially corroborates the pursuer's other proof. The evidence in defence does not, in my opinion, to any material extent destroy the weight to be given to the proof adduced by the pursuer. The amount of damage, as estimated by the pursuer and his witnesses, is excessive in any view, because it has been stated on the principle of including the whole damage, without allowing for any stock of rabbits on the ground. But allowing for such a number as might naturally be expected—assuming ordinary measures to have been used to keep them down—deducting from the estimates of the witnesses a certain amount for exaggeration, and disallowing the greater part of the damage claimed on account of injury to pasture as not being satisfactorily proved, there remains the sum of between £50 and £60 per annum already mentioned, to which, if the pursuer were right in his view of the law, I should hold he was entitled for four years. There is a conflict of evidence as to the complaints and notice of claims given by the tenant to Mr Maclean, the defender's factor, and the proof is certainly not so satisfactory on this subject as could be desired. At the same time, I think as a whole it shews that several complaints were made, in writing as well as verbally, from time to time, accompanied by claims for abatement of rent; and although Mr Maclean does not now remember of these, or of the request by the gamekeeper Fair for assistance to keep down the rabbits, which was refused, I think this must be because, unfortunately, he did not attach sufficient importance to these matters at the time.

I am, however, of opinion that all claims of damage at the pursuer's instance, on account of injury which might be caused to his crops from any increase of rabbits arising from the defender's failure to keep down the stock on the lands and adjoining plantations, were excluded by the terms of the leases. In no case which has hitherto occurred for decision have claims of damage been the subject of a clause so stringent in its nature against the tenant as the present. In the case of Morton v. Graham, 30th November 1867, 6 Macph. 71, the lease reserved to the landord all game and rabbits, with the exclusive liberty of shooting and sporting, ‘without being liable to compensate the tenant in respect of the reservation and liberty herein expressed.’ And it was remarked by the Court that the clause was one of the most stringent against the tenant that had occurred. In the present case the clause is fuller in expression, and contains stipulations more clearly excluding claims than were found in the case of Morton. It is in the following terms: —‘Reserving also to the proprietor and his foresaids the sole right to the whole game, including hares and rabbits of every kind, and to all the fish in the rivers and burns, within the lands hereby let, with full power to himself and to those having his permission to hunt, shoot, or fish, and sport on the farm without liability in damages, and the tenant shall be bound to preserve the game of all kinds, including hares and rabbits, to the utmost of his power, to interrupt poachers and unqualified persons, and to give information of them to the proprietor and his foresaids, or those acting for him or them; and it is hereby expressly declared and agreed that the tenant shall have no claim whatever for any damage he may sustain from game, hares, and rabbits during the lease, this being held to have been calculated upon and allowed for by him in offering for the farm.’

There is thus (1) a reservation to the landlord of the rabbits, with power to himself and those having his permission to shoot and sport on the farm without liability in damages. (2) An obligation on the tenant to preserve rabbits to the utmost of his power, and to prevent poaching on the lands. (3) There is nothing in the clause which can be read as imposing on the landlord, either expressly or by implication, an obligation to keep down the rabbits, so as to prevent an excessive increase in their numbers; and lastly, it is agreed ‘that the tenant shall have no claim whatever for any damage he may sustain from rabbits during the lease, this being held to have been calculated upon and allowed for by him in offering for the farm.’ The question for decision is one of construction of this clause, and it appears to me that, giving to the language used the ordinary effect which it must receive, the result is that the tenant agrees to leave himself entirely in the hands of the landlord so far as regards the keeping down of hares and rabbits. The damage which might result from game or rabbits was plainly in the view of the parties, and was the subject of a careful and distinct provision. The tenant agreed that he should have no claim whatever for such damage. He now asks that this provision should be read as if it were of a limited kind, excluding claims of damage generally, but not such clauses as might arise from an excessive stock of game or rabbits being allowed to grow up, either from active measures on the part of the landlord or the landlord's failure to keep down the burden. I see no room for this construction in the language which the parties have used. If such a limitation had been intended, it would have been expressed by some words controlling the effect of the general terms employed. In the absence of such words it is not for the Court, in construing the clause, to add a limitation which the parties have not themselves made. Both parties found on the concluding words of the clause— ‘this being held to have been calculated and allowed for by him in offering for the farm,’ as being in favour of their respective views. Taking the clause as a whole, I think the relative ‘this,’ with which this part of the clause begins, must be read as referring to any damage which the tenant might sustain, and that such damage, whatever might be its amount, was a matter on which he calculated, and for which he allowed in offering for the farm; at least he agrees that this shall be accepted as the footing on which he entered into the lease, however far this may be from the fact, for it appears that the farms were

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let at their full value as agricultural subjects. It was maintained on his behalf that this expression must be taken to refer to a calculation and allowance for damage from a certain quantity of game and rabbits, roughly estimated with reference to the stock on the lands at the time of entry, and to what could fairly be expected to arise from the plantations on the farms—assuming that ordinary measures had been used to keep the stock down—and that claims of damage by game and rabbits in excess of this were left open. I cannot, however, adopt this view; the words ‘calculated upon and allowed for’ appear to me to refer to damage not from a certain limited quantity of game and rabbits so roughly estimated, but to any damage which might occur,—the effect of the clause practically being that the tenant took his risk of the landlord keeping down the game and rabbits within reasonable bounds, and calculated on the damage he might suffer running that risk, which he may have thought very small.

The pursuer strongly argued that it could not be readily supposed that a tenant would enter into a lease which left him so much at the mercy of the landlord, and that the Court should control or construe the expressions in the lease, so as to give to them the effect only of excluding claims of damage other than those arising for an excessive stock of game. It appears to me, however, that the terms used do not admit of this construction, and I come to that conclusion although I think at the same time that the clause gives expression to an arrangement which I should characterise as extremely improvident on the part of the tenant. It may be assumed that the pursuer thought he might trust that the landlord would not exact his full rent, and at the same time, either of design or from neglect, keep up such a stock of rabbits as would so seriously injure the crops as to render it impossible that the rent could be paid from the produce of the farms; but that being the agreement, the pursuer is left with an appeal to his landlord only. The Court has no power to modify the terms of the agreement, and the pursuer cannot maintain a right to damages of a kind for which his lease provides he shall have no claim whatever. The case in its general aspect is not unlike that of Buchanan and Henderson and Dimmack v. Andrew, decided in the House of Lords on 10th March 1873, Law Reports, volume ii. Scotch Appeals, p. 286, in which the respondent in the appeal, on the ground that his house would be thrown down by the operations of the mineral owner and his tenants, endeavoured to stop their operations. His feu-contract contained an obligation to erect and maintain a house of some value and of a specified character, but at the same time authorised the mineral owner to work out the minerals, “and that free of all or any damage which may be thereby occasioned to the feuar.” The House of Lords, reversing the decision of this Court, held that the operations could not be prevented even though they should result in the house being brought down, and the opinions distinctly affirmed that the feuar had no claim of damages for injury which might arise from the removal of the minerals. All of the Judges expressed the view that the agreement to which the pursuer had been a party was improvident, but the question being one of construction, they were of opinion that the general words used gave the power which the mineral owner asserted, and that all claims of damage were renounced by the feuar. So in this case I think the lease gave the power of preserving game and rabbits, which the landlord asserted and used, and that the tenant renounced all claims of damage which might arise to him from the exercise of this right. I regret the result, for I think the tenant's position now is one of extreme hardship. This is, however, the result of the agreement into which he entered. If he had not meant to leave himself entirely on his landlord's hands he should have stipulated either that the reservation of claims of damage should be limited in its terms, or that the lease should contain an obligation on the landlord to keep down the stock of rabbits, so that it should not become excessive, to the serious injury of the crops.”

The pursuer reclaimed, and argued—The clause in the lease meant that a calculation had been made of damage according to the then existing stock of rabbits. The landlord could not impose an obligation on him to preserve, and abstain himself from keeping down rabbits. There was the same case here as if the landlord had made a warren.

Authorities— Moncreiff v. Arnott, Feb. 13,1828, 6 S. 530; Wemyss v. Wilson, Dec. 2, 1847, 10 D. 194; Drysdale v. Jameson, Nov. 30, 1832, 11 S. 147; Wemyss v. Gulland, Dec. 2, 1847, 10 D. 204; Morton v. Graham, Nov. 30, 1867, 6 Macph. 74; Syme v. Lord Moray, Jan. 14, 1868, 6 Macph. 217; Byrne v. Johnstone, Dec. 17, 1875, 13 Scot. Law Rep. 170, 3 R. 255.

The defender argued—By the clause of the lease all claims of damage were excluded unless fraud on the part of the landlord were proved. But apart from that, there was no excessive increase of rabbits, and the landlord had kept them down as far as could reasonably be required.

At advising—