Scottish Court of Session Decisions

William Simpson, farmer, Reiss, Caithness, presented a petition in the Sheriff Court at Wick against George Mackenzie, also farmer there, “to interdict the defender, his servants and all others employed by him, and for whom he is responsible, from entering or trespassing upon the lands of the pursuer's farm in Reiss, situated in the parish of Wick, with the defender's horses or other bestial, and from watering his horses or other bestial at a quarry situated in the centre of the said farm, or for any other purpose, or in any other way, interfering with or disturbing the pursuer in the possession of the said farm or quarry.”

The pursuer averred that the defender had for some time past, and on certain specified occasions, without any right or title, and notwithstanding his remonstrances, unlawfully trespassed in the manner against which interdict was now craved.

The defender averred that he had been in use to water his horses and other bestial at that quarry since he became tenant of his farm eight years before, and that his right to do so had never before been challenged; that the tenants who had preceded him on the farm had done the same; that the pursuer had no right to the quarry or the road leading to it except for the same purpose as the defender and the rest of the tenants on the estate; that in fact the quarry had been common to all the tenants of the Reiss district as well as to the Reiss blacksmith for half a century. He pleaded, “No title to sue.”

The Sheriff — Substitute ( Spittal.) allowed a proof, at which it appeared—Both parties to the action were tenants on the estate of Mr Duff

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Dunbar of Hempriggs. Neither tenant had a lease, but each had occupied his farm—the pursuer for twenty-four years, and the defender for upwards of eight years—from year to year by tacit relocation. The quarry in question was situated on the pursuer's farm about 5 chains from the public road called the Reiss Road, and about 2 1 2 chains from an estate road (which was not a public road) called the Nordwall Road, which branched off from the Reiss road. The quarry was entirely surrounded by the arable land of the pursuer's farm, of which the Nordwall road formed the boundary in that direction. There was a road to the quarry from the Nordwall road, which had been made by the pursuer himself when he ploughed up the ground from hill pasture, in place of the road which formerly existed. The road which pursuer had made was not a metalled road, the ground being merely in its natural state. There was a spring of water in the quarry, and a well had been made there. There were two quarries with water in them on the defender's farm, one of which was close behind his house, and was liable—the defender said—to be polluted by the liquid refuse from his farm buildings. The other was dry, or nearly so, in summer. There was also another quarry with water at a corner of the defender's farm across the Reiss road, about 24 chains from his house. The land—steward of the estate deponed that he had no instructions from the proprietor as to the quarry on pursuer's farm, and knew of no regulations regarding it; he took it to be a private quarry.

Pursuer deponed that he paid rent for the whole of his farm, but the quarry was not specially mentioned. He had challenged defender's right to water his horses at the quarry for the past five years, and the defender replied that he might take out an interdict against him. Defender's horses and cattle used to come to the water of themselves and pass right through pursuer's corn. The adjoining tenant on the other side of pursuer's farm watered at the quarry by his permission, and the blacksmith had a shod ding-stone there, and came there to shod his wheels, but this was also—on the blacksmith's own evidence — by permission of the pursuer. The ground—officer of the estate and several other tenants deponed to the custom among the tenants of watering at the quarry, but none of them regarded it as a public quarry or considered that they did so otherwise than by permission of the pursuer. One tenant had been stopped doing so by pursuer.

The Sheriff-Substitute pronounced an interlocutor finding, inter alia—“(4) That the defender, who is tenant of the adjoining farm marked ‘George Mackenzie's farm’ [on a sketch produced], and others of the neighbours, have been in use for several years to take occasional supplies of water from said quarry; but finds (5) that the defender has failed to prove any right on his part to take such supplies of water, or to visit said quarry without the leave of the pursuer: Therefore grants interdict in terms of the prayer of the petition,” &c.

“ Note.—There is no doubt that the pursuer's neighbours have been for long accustomed to take supplies of water from the pursuer's quarry whenever it was convenient for them to do so, and as there seems to be a good supply of water there it is not easy to see that the pursuer suffered any injury through these visits of his neighbours so long as they kept on the road and did not trespass and allow their beasts to trespass on the pursuer's fields. But unfortunately the pursuer and defender are not on good terms, and the pursuer has chosen to forbid the defender from using the quarry. I think he is legally entitled so to forbid him, and that the defender must get his water elsewhere. Where he is to get it in future is, I think, immaterial to the present case.”

The defender appealed to the Sheriff ( Thoms), who pronounced this interlocutor:—“Sustains said appeal, and recals the interlocutor of 6th November last submitted to review: Finds that the pursuer is not tenant of the quarry as regards access to which the present action of interdict is brought: Sustains the defender's plea of no title to sue, and assoilzies the defender,” &c.

“ Note. — An agricultural tenant is not tenant of a quarry of stone or other minerals on his farm without special bargain. Mr Hunter (Dove Wilson's edition, i. 206) says—‘The rule is express that the landlord is entitled ex lege to the minerals, and consequently to work them, with a right of access and other accommodations.’ The pursuer here has only proved that he is a yearly agricultural tenant of a farm. When the pursuer ploughed up the old road to the quarry on his farm he very properly made a new one. The pursuer proves that Sir George Dunbar at one time proposed to take the water of this quarry for his house of Ackergill Tower, and asked and obtained no leave of the pursuer to do so. Thus, on the pursuer's own showing, he is not tenant of the quarry to which solely this action relates, and has no title to interdict the defender from going to it. Had he averred any trespass on his fields by the defender the case might have been different, but as his petition only sets forth trespass against the defender ‘by passing through the lands of the said farm with his horses or other bestial to a quarry,’ and particularly ‘with two horses on the 17th, 18th, and 20th days of September current 1883,’ and this alleged trespass is shown by the proof to have been by the road which the pursuer made to give access to the quarry, no case for interdict has been made out.”

The pursuer appealed to the Court of Session.

The Court called upon the respondent's counsel, who argued—The defender had shown a customary right of the tenants on the estate to water horses and cattle at the quarry, and therefore of access to it over pursuer's farm. Access to a supply of water for these purposes was at common law a necessary accessory of an agricultural subject. The scarcity of water on defender's own farm made access to this quarry—as against the landlord, and therefore as against the pursuer, his tenant—a right necessarily involved in the defender's tenancy, as without it his farm would be untenantable.

At advising—