Scottish Court of Session Decisions

Thomas Philip Parr of Killichronan, Mull, brought an action of interdict in the Sheriff Court of Argyllshire at Oban against Hugh Maclean, crofter, Kellon, one of his tenants, to have him interdicted from taking peat from the moss of Killichronan.

The pursuer pleaded that the defender had no right to enter or be on the farm of Killichronan for any purpose whatever. That a moss at Killiemore had been thirled by usage to the croft, was much nearer and as convenient for the defender, and being now, and having all along been, open to him without let or hindrance, any claim to peats which he had under the Crofters Act or otherways was satisfied.

The defender averred—“The pursuer himself about the year 1865 pointed out to defender's father the place where to cut peats on the farm of Killichronan, and the peats have each year been cut there ever since then by the tenants of Kellon Croft, and occasionally by pursuer himself and the tenants of Killichronan when it was let by pursuer. No objection or complaint was ever made to the exercise of the right of peat cutting until the pursuer's agents wrote the defender on 8th December 1887. … Explained that the moss at Killiemore is inaccessible to a cart, although geographically slightly nearer to defender's holding, and that the good peat in that moss has been exhausted. … The said right of peat cutting is a pertinent of the holding of the defender from which he is not legally to be debarred, in respect of the provisions of the said Crofters Holdings (Scotland) Act 1886. The defender's said right of peat cutting on Killichronan farm has been continuously exercised for a prescriptive period of time.”

The defender pleaded—“(1) The right to cut peats being a pertinent of the defender's holding for time immemorial, he, as a crofter in the sense of the Act, cannot be deprived of the same by the present proceedings.”

A proof was allowed, from which it appeared that the defender succeeded to the croft about 1877 on the death of his father Donald Maclean, who had possessed it with right to get peats from 1865. At that date the peats were cut at Killiemore, about one and a half miles off. There was then a mill on the croft, and in 1867 Donald Maclean asked the present pursuer if he might take peats from Killichronan, three miles off, as he was working in that neighbourhood and could fetch them in his cart, and also because the peats from Killiemore were spoiling the meal. Leave was given to take peats from Killichronan during the landlord's pleasure, and no rent was charged for this accommodation. The mill ceased to be worked during the year after Donald Maclean died, and on 8th December 1887 permission to cut peats at Killichronan was withdrawn by letter to the defender. There was a cart road to the moss at Killichronan, but only a horse with creels could be taken to the peats at Killiemore.

The Sheriff-Substitute ( Maclachlan) on 7th November 1888 found as follows—“(First) that the defender's father Donald Maclean became tenant of a croft at Kellon, on the estate of Killichronan, at that time the property of the pursuer's father, on or about the year 1865; (second) that the holding of which the said Donald Maclean became tenant included the right of cutting peats on a moss on Killiemore Hill, part of said estate; (third) that the said Donald Maclean exercised the said right of cutting peats on said moss for two years or thereby, and thereafter applied to the pursuer, who had then succeeded to said estate, and obtained permission from him to cut peats on a moss at Killichronan, on another part of said estate, but that said permission was granted by the pursuer during his pleasure only, and no rent was exacted therefor, and that said permission has now been withdrawn: Finds that the pursuer was entitled to withdraw said permission, and therefore decerns in terms of the prayer of the petition.”

On appeal to the Sheriff ( Irvine) this interlocutor was affirmed.

Page: 587↓

The defender appealed to the Court of Session, and argued—(1) This was an illegal attempt on the landlord's part to remove a crofter from part of his holding in face of the Crofters Holdings (Scotland) Act 1886. (2) The crofter had a right to peats as an incident of his holding, and the moss at Killichronan had been substituted for that at Killiemore. (3) The holding had been renewed from year to year for twenty years with right to cut peats at Killichronan, and the landlord had no right at mid-term to take away this pertinent of the croft. (4) It was an unreasonable alteration of the enjoyment of this croft. It put the crofter to serious inconvenience. The Killiemore moss being inaccessible with a cart was, although nearer the croft, much more troublesome to work, and contained inferior peats.

Argued for the respondent—The crofter's right to peats was merely to get them without being put to serious inconvenience, not to get them from any particular place. Killichronan moss was given during the landlord's pleasure and because of the mill, which was no longer in existence. There was no attempt here to deprive the crofter of his right to peats. The place assigned him was the ground his father had originally used, and was only half the distance from the croft. There was no hardship in having to go to a place where a horse with creels could be employed.

At advising—