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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacDonald v. Butler Johnstone [1882] ScotLR 19_770 (1 July 1882)
URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0770.html
Cite as: [1882] SLR 19_770, [1882] ScotLR 19_770
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SCOTTISH_SLR_Court_of_Session
Page: 770↓
Court of Session Inner House First Division.
[
v.
Entail
Facts:
An agricultural tenant who had during the years to which his complaint referred paid his rent and accepted receipts without any reservation of his claim for damages, brought an action of damages against his landlord for injury said to have been caused to his crops by flooding due to drainage operations of the landlord on a piece of ground adjoining his farm. It appeared from the correspondence between the parties that during so much of the period during which the damage was said to have been caused as the pursuer appeared to have been aware of the alleged cause of the damage to his crops, he made specific written complaint to the landlord of the result of the operations in question. The Court in the circumstances allowed a proof before answer of the pursuer's averments.
A tenant brought an action against his landlord, an heir of entail who succeeded to the entailed estate in 1873, for damage said to have been caused from and after the year 1867 by certain drainage works executed by the defender's predecessor, and which had been maintained by him. Held (per Lord M'Laren, Ordinary, and acquiesced in) that inasmuch as the defender did not represent the preceding heir of entail he was not connected by any relevant averment with the author of the damage, and that the action, so far as it concluded for damages caused before the defender's succession in 1873, was irrelevant.
In this action Donald Macdonald, tenant of the farm of Culcraigie, Ross-shire, sued his landlord Mr Butler Johnstone, heir of entail in possession of the lands of Contullick and Culcairn, on which his farm was situated, for damages to the amount of £1415, 12s. 6d. alleged by him to have been caused by the flooding at intervals during a series of years of a portion of his farm amounting to 25 acres. This flooding he alleged to have been caused by certain drainage operations of the defender which had been executed on his property after the pursuer entered into his lease.
The pursuer's lease began in 1864. The rent was £270, and a system of rotation of crops was prescribed. Power was reserved to the landlord to execute all necessary operations for the purpose of draining the estate on paying surface damage to the tenant, the damage to be ascertained by arbitration.
The defender succeeded to the entailed estates in 1873.
The farm was bounded on one side by a wooded hill, the property of the defender.
The pursuer averred that when he entered on the farm, and for some years thereafter, the drainage was quite satisfactory; but from and
Page: 771↓
after the year 1867 he began to find the drainage inadequate, with the result that the 25 acres of the farm already alluded to were often much flooded. He was unable to discover the reason of this damage till on an occasion in 1877, when he observed that a very considerable alteration had been made by the proprietor in the drainage of the wooded hill by which his farm was bounded, with the result that whenever there was an excess of moisture a great additional flow of water was brought into the drains of the farm so as to choke them and to flood the fields. The pursuer further alleged that he had straightway communicated with the factor of the proprietor on the subject, and that some operations had been done to improve the state of matters, but that no material improvement had resulted. He had thereafter carried on a long correspondence with Messrs Lindsay, Jamieson, & Haldane, C.A., Edinburgh, who were acting on behalf of the proprietor, with reference to the damage, in the course of which he offered to refer the question of compensation to be awarded to him to arbitration. This offer being refused he brought this action. Besides the sum of £1415, 12s. 6d. above mentioned, he also claimed £50 for damage caused by the bursting of a drain on a part of the farm other than the 25 acres to which the major part of the damage was caused. The bursting of this drain he alleged to be due to the same operations of the proprietor as had caused the damage to the 25 acres. The defender denied that any damage had been caused to the pursuer by his operations, and attributed any damage that had arisen from the wet state of the farm to the fault of the pursuer in not keeping the drains on his own farm clear. He averred that the pursuer in paying his rent (which had been regularly done during all the years of the pursuer's tenancy) had accepted receipts therefor without ever reserving a claim of damages. He pleaded (3) that “the pursuer having regularly paid his rent, and accepted receipts therefor without reservation of his claim, is barred from now insisting in it.” He also pleaded that inasmuch as he himself did not represent the previous heirs of entail, he could not in any event be liable for the period anterior to his succession to the estate.
The
He added this opinion:—“In this action the pursuer, who is a tenant of the defender under a lease granted by the defender's mother in 1864, claims damages for injury sustained through the flooding of a part of his farm, extending to 25 acres, during the years from 1867 to 1881 inclusive. The particulars of damage, amounting in all to £1415, 12s. 6d., are set forth in the condescendence.
“The defender acquired right to the estate by special service as heir of entail, dated 2d June 1873. Under that title he does not represent his mother, the preceding heir of entail, and it is not said that he represents her under any other title, active or passive. He is therefore not connected by any relevant averment of title with the author of the damage, supposing such damage to have been caused by the act or fault of the preceding heir of entail. This consideration excludes the claim in so far as founded on damage done before June 1873.
With regard to the damages claimed for the period of the defender's ownership, I am of opinion, for the following reasons, that the claim must be limited to the last year sued for, that is, to the damage alleged to be done to the crop of the year 1881.
The pursuer alleges that his fields have been flooded in consequence of the drainage of the defender's woods being thrown on to his farm. The drains, according to this statement, were formed and completed sometime after the commencement of the pursuer's lease, and adequate provision was not made for carrying away the surplus water by a main drain connecting the wood with the neighbouring stream. Hence the overflow of which the pursuer complains. According to his own statement, the pursuer only discovered the cause of the flooding in the year 1877, and if he had then brought his action it it would have been open to him to show that he was excusably ignorant of the cause of the damage until that time. But the pursuer did not take proceedings to constitute his claim until the present year. Although in the years 1877 and 1879 the pursuer corresponded with the defender's factor and agents on the subject of his claim, which he expressed his intention of enforcing, he regularly paid his rent without attempting to enforce his claim by a set-off, or reserving his right to constitute it by action.
I am not of opinion that the correspondence is sufficient to save the claim from the operation of the rule laid down in Hunter v. Broadwood, 17 D. 340. That rule is founded on the consideration that a creditor, or one who considers himself to be a creditor, in a sum of money will not in general make payments to his debtor of a larger sum without endeavouring to obtain payment of his claim by set-off, or at least reserving his right to recover it in competent form. If he pays without such reservation, the party receiving payment may reasonably presume that the counter claim is not insisted on. This presumption, which is strong even in the case of a single payment by an alleged creditor to his debtor, becomes absolute when a series of payments are made regularly and periodically without deduction or reservation.
It is admitted by the defender that the claim, so far as applicable to the last crop and year, is not barred, because it is not certain that the amount of damage was ascertained at Martinmas, when the pursuer made his last payment of rent. As regards previous years, I think it is barred.
In this question I cannot draw a distinction between a claim of damage by flooding and a claim of damage by game. In the present case it would be difficult, if not impossible, for the proprietor to rebut the evidence which the pursuer might lead as to the extent of the damage and its cause. Having been induced by the pursuer's conduct to believe that the claim was not to be pressed, the defender had no occasion to employ persons of skill to qualify themselves to give evidence in the case. He cannot now make inquiry as to the existence of the alleged damage or its cause, because the means of discovery no longer exist. In short, there cannot be a fair
Page: 772↓
I shall therefore sustain the defender's second plea, and also the third plea, except as to the damage done in 1881, being the year preceding the action.”
The pursuer reclaimed, and argued—That the correspondence between the parties prior to the raising of the action showed that there had been a distinct claim made each year (and indeed oftener) by the tenant. When this was the case, as distinguished from “mere general grumbling”— vide Hardy v. Duke of Hamilton, February 2, 1878, 15 Scot. Law Rep. 329 (Lord President's opinion)—the principle of Broadwood v. Hunter, quoted by the Lord Ordinary, did not apply. With regard to the period before 1873, when the defender succeeded to the estate, the pursuer acquiesced in the judgment of the Lord Ordinary.
The correspondence produced by the pursuer consisted of letters written at intervals during the years 1877, 1878, 1879, 1880, and 1881, when the pursuer's claim was pressed by him, but denied by the defender. For a delay in attending to the matter of some months' duration it was not disputed that the defender was responsible.
The Lords, after hearing counsel on the correspondence between the parties, and without delivering opinions, recalled the interlocutor of the Lord Ordinary in so far as it found pursuer barred from insisting in his claim of damages for the period subsequent to the year 1873, and allowed parties a proof of their averments, reserving the defender's third plea-in-law.
Counsel for Pursuer— Trayner— Guthrie. Agents— Paterson, Cameron, & Co., S.S.C.
Counsel for Defender— Murray. Agents— Tods, Murray, & Jamieson, W. S.