Scottish Court of Session Decisions

In this case Evan Baillie of Dochfour, Inverness, sought to interdict John Mackintosh, flesher, Kingussie, and all others employed by him and for whom he was responsible, from entering upon or occupying a piece of land, the property of the pursuer, or in any way interfering with the pursuer in the possession of the same. The ground of action as stated in the condescendence was as follows:—For some time prior to Whitsunday 1880 the defender occupied a plot of ground on the lands of Ardbroilach of and under the pursuer, the proprietor, from year to year, with a Martinmas entry, paying therefor to the pursuer in name of rent the sum of £3 yearly. At the term of Whitsunday 1880 the defender gave over the half-year's right of occupancy from that date to Martinmas following to John Dott, residing in Kingussie, and removed with his family to Forfar, at the same time intimating to the pursuer that he did not intend to return to Kingussie and occupy the said plot of ground, and that his occupancy thereof would cease at the said term of Martinmas 1880. The pursuer accordingly at the term of Martinmas 1880, let the said ground to John Hossack, feuar in Kingussie; the defender subsequently returned to Kingussie and threatened to enter upon and occupy and keep possession of the said plot of ground in spite of the pursuer, and persisted in keeping the pursuer's present tenant from cultivating the said plot of ground.

The pursuer pleaded that “the defender having no right to enter upon, or occupy, or in any other way interfere with or disturb the pursuer in the possession of the said plot of ground, and having threatened to enter upon and occupy it, and prevent the present tenant from cultivating it, the pursuer was entitled to decree in terms of the prayer of the petition, with expenses.”

The defender denied that he had made over his right to the piece of land to John Dott, or to any other person, and he averred that he had never received notice to quit.

He pleaded—“The defender being tenant of the said piece of land in question for a period still unexpired, the prayer of the petition ought to be refused, and the defender assoilzied, with expenses.”

The import of the proof will sufficiently appear in the findings in fact of the Sheriff-Principal.

The Sheriff-Substitute ( Blair) found in point of fact—“ First, That for some years prior to Martinmas 1880 the defender was the tenant from year to year of a piece of ground, part of the lands of Ardbroilach, the property of the pursuer; Second, That no formal warning to remove at the term of Martinmas 1880 was given by the pursuer to the defender, and no sufficient facts and circumstances had been proved by which the defender was barred from objecting to want of notice to remove; and Third, That no notice of renunciation by the defender was made to the pursuer or to those having power to receive a renunciation; Found in law that the defender was in the circumstances entitled to regard the piece of ground as re-let to him for the year from Martinmas 1880 to Martinmas 1881 by tacit relocation: Therefore sustained the defences; recalled the interim interdict; and refused the prayer of the petition.”

On appeal the Sheriff-Principal ( Ivory) recalled the interlocuter appealed against, and found “in point of fact—(1) that for some time prior to March 1880 the defender occupied a plot of ground under the pursuer on the lands of Ardbroilach from year to year, with a Martinmas entry, paying a rent of £3 yearly; (2) that on 29th March 1880 the defender intimated to Mr Maclennan, the pursuer's local factor at Kingussie. that he intended to leave the place for good and all to start business for himself in Forfar (where in fact he had taken a shop in lease for two years), and stated that he would like as a special favour to give the plot of ground to John Dott, who was present at the interview; (3) that Mr Maclennan then told the defender and John Dott that he had no objections to such an arrangement for the season up to Martinmas, but that he could not promise it for longer until he had the consent of Mr Mollison, the pursuer's principal factor; (4) that on 14th April 1880 the defender sold the goodwill of, and his whole right and interest in, the plot of ground to John Dott for £10, the latter undertaking at the same time to pay the rent due for the year ending Martinmas 1880, and shortly thereafter left Kingussie with his wife and family, and went to reside permanently in Forfar; (5) that John Dott thereafter entered into possession of the plot of ground as tenant, in place of the defender, and on 10th June 1880 paid to the pursuer, by the hands of Mr Mollison, the half-year's rent due at the preceding Whitsunday, Mr Mollison at the same time intimating to him that he would not be allowed to occupy the land after Martinmas; (6) that John Dott continued in possession of the plot of ground till Martinmas, paying to Mr Mollison the half-year's rent due at that term, and then left without objection, the plot of ground having since been occupied by John Hossack, to whom it had been previously let by the pursuer; (7) that in October the defender gave up his business in Forfar and returned to Kingussie, and finding that John Dott had lost the plot of ground (for which he expressed great regret, seeing that the latter had paid so heavy a goodwill for it), he claimed the plot of ground himself for another year, on the ground that he had received no legal warning to quit, and at the same time threatened to enter upon and occupy it: Found in these circumstances, in point of law, that the defender must be held to have abandoned, with consent of the pursuer, all right and interest in

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the said plot of ground, and that he had not at Martinmas, and had not now, any right to enter upon or occupy the same, or to interfere therewith in any manner of way; therefore declared the interim interdict formerly granted to be perpetual, and decerned in terms of the prayer of the petition.”

The defender appealed, and argued—(1) In point of fact, the defender was the tenant in possession of the piece of ground for the year from Martinmas 1880 to Martinmas 1881 by tacit relocation; and therefore (2), In point of law, the application for interdict was not, on the authority of Johnston v. Thomson, June 9, 1877, 4 B. 868, a competent process for putting an end to his possession; (3) the circumstances as detailed in the evidence did not so clearly indicate the defender's intention to leave the land at Martinmas 1880 as to be sufficient to supply the want of warning or action of removing.

Authority— Dunlop & Co. v. Meiklem, October 24, 1876, 4 R. 11.

At advising—