Scottish Court of Session Decisions

Prior to 26th March 1875 Robert Stephen, the

Page: 196↓

pursuer of this action, had been lessee of the salmon-fishings ex adverso of the estate of Clyth under a lease from Mr Sharp, the proprietor, but the Crown having established its right to the fishings as against Mr Sharp, Stephen at that date became the lessee of the Crown. He carried on his fishings at the two stations of Occumster and Whalligoe, both on the Clyth estate, as these were the only points at which the right of fishing could be profitably worked. On the ground that neither the Crown nor its tenant were entitled to use his lands or any portion of them for any purposes connected with the fisheries without payment, Mr Sharp sued Stephen in the Small-Debt Court for payment of £10 for such use in the case of each station, and the Sheriff gave decree for £8 and expenses. For these sums, and his own expenses in defending that action (of which due intimation had been made to the Crown), £112, 14s. l1d. in all, Stephen in this action sued the Crown on the ground that they were expenses necessarily incurred by him in defending the Crown's right. The Crown was subsequently successful in an action, which it brought in the Court of Session against Mr Sharp ( ante, p. 49), of declarator of right to use the lands in so far as necessary to the proper exercise of the right of fishing. In the correspondence between the pursuer and the Crown in reference to the Sheriff Court action, the Crown had from the very outset guarded itself against any claim for expenses of the kind sued for. It had at the same time professed willingness to aid the defender in every way by advice. In one letter, in reply to a communication from the pursuer's agent intimating that he would look to the Crown to relieve him of loss, the Crown's agent said—“If the Sheriff decides against your client it must be because he has exceeded his rights, and of course the Crown would not countenance such a proceeding; if, on the other hand, the decision is favourable to him, the Sheriff has power to award expenses against the pursuer, and Mr Howard remarks that it will be for you to see to this.”

The Lord Ordinary ( Young) sustained a plea against the relevancy of the action, and dismissed it. He added this note:—

“ Note.—The pursuer's case is a hard one, and I should gladly give him relief if I could. The Sheriff's judgment in the Small Debt Court was, I think, in excess of his jurisdiction, or at least certainly not in what I should esteem the discreet exercise of it. The action was, in form, for a claim in money, but it was manifest that its validity depended on a question of heritable right, regarding which the Crown and the proprietors of Clyth were (and still are) in controversy. It was so obviously unsuitable and inconvenient that the Sheriff should adjudicate on this question in the Small Debt Court, even to the extent of deciding a claim for money which exactly depended upon it, that I must express some surprise at the view which the Sheriff took of his jurisdiction and duty. That he decided erroneously is an accident on which I do not dwell, especially as in the meantime that proposition stands only on my own decision of the question of right. He clearly ought not to have decided at all, but allowed the case before him to stand over to abide the decision by the proper Court of the question of right on which it depended.

I do not much wonder that the proprietor of Clyth should be indignant with the Crown officials for their conduct in the matter of the fishing, which he had established at his own expense and risk, and that he should afford them no facilities which he may lawfully deny. I am nevertheless unable to commend such petty warfare on the subject as the small-debt action is an instance of — I hope the only one. He has obtained an accidental, and I think erroneous, success at the hands of an inferior judge in a Small Debt Court, with considerable hardship to an innocent man, and without any effect on the Crown officers. It is probable that a private proprietor would have defended his tenant under such circumstances, and relieved him of the hardship which he had innocently, so far as he was concerned, incurred from a dispute with a neighbouring landowner. I should have thought that (right feeling apart) motives of interest, guided by intelligence, would have prompted a landlord to defend his tenant and keep him harmless under such circumstances, but this is not a consideration that will found a claim for relief in a court of law. I am constrained to decide that the facts disclosed show no ground of action against the Crown.”

The pursuer reclaimed, and argued—The judgment of the Small-Debt Court being founded upon want of title, and being the decree of a Court of final jurisdiction, the pursuer suffered what was equivalent to eviction, and accordingly the Crown were bound to relieve him.

Authorities — Hunter, ii, 266; Bell v. Duke of Queensberry's Executors, Dec. 18, 1824, 3 S. 416.

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