Scottish Court of Session Decisions

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Cite as: [1877] ScotLR 14_560_1, [1877] SLR 14_560_1

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SCOTTISH_SLR_Court_of_Session

Page: 560↓

Court of Session Inner House Second Division.

[Sheriff of Banffshire.]

Tuesday, June 12.

14 SLR 560_1

Steuart

v.

Stephen.

Subject_1Interdict
Subject_2Trespass
Subject_3Landlord and Tenant.
Facts:

Where a person, who did not aver any legal right, was in the habit of taking a short cut to a railway station across lands in the occupation of an agricultural tenant, and without objection on the tenant's part, interdict at the proprietor's instance refused.

Headnote:

This was an appeal from the Sheriff Court of Banffshire, in a petition at the instance of Steuart of Auchlunkart against Stephen, a shoemaker, residing at Deanshaugh, craving interdict against the respondent from trespassing on a piece of land lying between the Boat-of-Bridge Road and the Mulben Station of the Highland Railway Company. The land was occupied by Hay, the agricultural tenant of the petitioner. The respondent occupied certain land and houses on the further side of the said road from the railway
Page: 561↓
station. The petitioner averred that for the last nineteen years the respondent and his family had been in the habit of trespassing on the land between the road and the railway station, chiefly with the view of getting a short cut from the houses to the station; and that there was thus a danger of a right-of-way being established from the station across the agricultural land to the houses beyond the road. The only specific act of trespass mentioned was of date 15th September 1875. The respondent explained that he and his family had occasionally crossed the land in question, but only when it was in grass, and that without objection on the part of the tenant; and that the entering on the land of date 15th September 1875 was on the authority of the tenant, for the purpose of protecting the corn from stray cattle.

The petitioner pleaded that he was entitled to sue for interdict without the consent of the agricultural tenant; and that the respondent was not entitled, without the petitioner's consent, to enter on the land in question.

The respondent pleaded that the petitioner had no title to sue, because the land was in the exclusive occupancy of his tenant, who was not a party to the proceedings, and that as he had not entered the land without the consent, or in opposition to the wishes of, the tenant, the interdict ought to be refused.

The Sheriff-Substitute refused the interdict.

The petitioner appealed.

Authorities cited for him—Taylor on Landlord and Tenant, ed. 1873, secs. 775, 784; Copland v. Maxwell, Nov. 20, 1868, 7 Macph. 142, and Feb. 28, 1871, Law Rep. 2 Sc. and Div. App. 103; Breadalbane v. Campbell, Feb. 12,1851, 13 D. 647, Stair, ii. 4, 36, Erskine, ii. 9, 4.

The respondent was not called on.

At advising—

Judgment:

Lord Ormidale—There is here a bare allegation of trespass, but the land .is not in the petitioner's possession, and it is not said that any injury to the subject has occurred, nor that the tenant in possession objects. I am of opinion that such an averment does not amount to a legal trespass. The tenant has a right of exclusive possession and absolute use (Bell's Prin. sec. 1224), but he is entitled to allow others to pass over the land.

Lord Gifford—This is a purely possessory question, in the discretion of the Sheriff. If a legal wrong was seriously threatened, it was his duty to grant interdict; but here the respondent claimed no legal right, but explained that what he did was done upon sufferance, and was confined to the period when the land was in grass. The alarm of the petitioner about a prescriptive right of ish and entry being reared up against him is quite unfounded. In dismissing this petition on the ground of sufferance, we are as distinctly interrupting prescription as if we had granted interdict, for which there seems to be no sufficient ground.

Lord Justice-Clerk—I concur. No abstract question of the rights of landlord and tenant is raised by this case. The only question is, whether the respondent is to be interdicted from taking a short cut to the railway station, which he now and then takes, apparently without objection on the part of the tenant? I do not say that if the station were near a populous village, and a case of habitual trespass were alleged, the landlord might not sue, altogether apart from the consent of the tenant.

Appeal dismissed.

Counsel:

Counsel for Appellant— R. V. Campbell. Agents— Maitland & Lyon, W.S.

Counsel for Respondent— Balfour—M'Kechnie. Agent— Thomas Carmichael, S.S.C.
1877