Scottish Court of Session Decisions

The Act 1661, cap. 41 (ratified by the Acts 1669, cap. 17, and 1685, cap. 39), provides that “Where enclosures fall to be upon the border of any person's inheritance, the next adjacent heritor shall be at equal pains in building, ditching, and planting that dike which parteth their inheritance.”

In 1893 James Macdonald and others, all crofters in Plocaig, Ardnamurchan, within the meaning of the Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict cap. 29), and occupying their holdings under John James Dalgleish, Esquire of Ardnamurchan, brought an action in the Sheriff Court at Oban against James and Allan Cameron, tenants of the farm of Glendryen, Ardnamurchan, and against the said J. J. Dalgleish, Esquire. In said action they craved the Court “to ordain the defenders jointly and severally, or severally, to unite with the pursuers in erecting a march fence or dyke between the common pasture of the township of Plocaig and the farm of Glendryen on the estate of Ardnamurchan, and that to the extent of one-half thereof; and failing the defenders, jointly and severally, or severally, complying with the above prayer within such period as the Court may appoint, to grant warrant to and authorise the pursuers to erect the said march fence or dyke at the sight of such skilled person as the Court may appoint, and on said march fence or dyke being erected, to ordain the defenders, jointly and severally, or severally, to pay to the pursuers one-half of the cost thereof.”

The pursuers averred that there was no march fence between the farm of Glendryen and the common pasture of the township of Plocaig, that in consequence cattle strayed across the march, and that it was for the interests of all parties that a march fence should be erected. They pleaded, inter alia—“(3) The pursuers being crofters within the meaning of the Crofters Holdings (Scotland) Act 1886, are proprietors of their respective holdings within the meaning of the March Fence Acts, and the defenders, jointly and severally, or severally, are bound to concur with the pursuers in the erection of a march fence as craved.

The defenders pleaded—“(2) The action being incompetent and irrelevant, ought to be dismissed, with costs. (3) The pursuers being merely crofters or tenants have no title to sue either by statute or common law, and the action ought to be dismissed, with expenses.”

Upon 21st November 1893 the Sheriff-Substitute ( Maclachlan) pronounced the following interlocutor—“Finds that the pursuers are crofters within the meaning of the Crofters Holdings (Scotland) Act 1886, and occupy holdings on the estate of Ardnamurchan, the property of the defender John James Dalgleish, including common grazing ground adjoining the farm of Glendryen, also on said estate but not separated from it by a march fence: Finds that this action is one calling upon the said John James Dalgleish as proprietor and the other defender as tenants of the said farm of Glendryen to unite with the pursuers in erecting a march fence or dyke bounding the said common pasture, but finds that neither by statute, nor by common law have the pursuers any right or title to make this demand: Therefore finds the action irrelevant and dismisses the same; finds the pursuers liable in expenses.”

“ Note.—This is an action by four crofters in the township of Plocaig, on the estate of John James Dalgleish of Ardnamurchan, against the tenants of the farm of Glendryen on said estate, and also against the proprietor, to have them ordained to unite with the pursuers in erecting a march fence or dyke between the common pasture of the township and the said farm. The farm adjoins or marches with the common pasture ground, but there is no march fence, so that, as the pursuers say, the cattle both of the pursuers and defenders stray into each other's territory, and not only cause damage, but are liable to be cruelly ill-used and even maimed in being driven back to their own ground. If this is true it shows a very unfortunate and unpleasant state of matters, which I have no doubt the erection of a good strong and substantial march fence would go a long way to remedy,

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and it might be thought desirable that all the parties interested should combine in erecting such a fence, but as I am of opinion that neither at common law nor by statute have I the power of ordering this to be done, I must dismiss the action as irrelevant. In the first place, there is no common law of march fence in the law of Scotland (see rubric in the case of Strang v. Stewart, March 31, 1864, 2 Macph. 1015), and secondly the statutes regarding march fences, in particular the Acts 1661, c. 41, 1669, c. 17, and 1685, c. 39, apply only to proprietors and not to tenants. A proprietor may be compelled by a neighbouring proprietor to erect a march fence or to concur with him in erecting it, and when the march fence is erected the tenants must preserve it, that is to say, the obligation of keeping it up devolves on the tenants— Dudgeon v. Howden, November 23, 1813, 17 F.C. 458. The pursuers are crofters on the estate of the defender Mr Dalgleish, or, according to the definition in the Crofters Holdings (Scotland) Act 1886, they were at the date of the passing of that Act tenants of holdings from year to year and Mr Dalgleish is their landlord, and I cannot give them any rights other than those which they had as yearly tenants that are not given by the Act. Their position may, popularly speaking, be considered equivalent to and perhaps in some respects even better than that of proprietors or owners, but they are nowhere in the Act treated or alluded to as proprietors. The only rights given to them analogous to those of proprietors are their fixity of tenure or indefeasibility of title, and a limited power of bequeathing the holding to members of their families, but these are hedged about by very stringent conditions none of which are applicable to proprietors, and on violation of these conditions they may be removed by the landlord in the same way as ordinary tenants. They cannot sell, assign, sublet, or subdivide their holdings, neither can they borrow money on the security of their holdings, because if the creditors attempt to attack their holdings and thus make them notour bankrupt the holdings are forfeited and the landlord may resume possession. These are a few of the considerations which make it perfectly clear to me that it was never intended by this Act to put crofters in the position of heritors in the sense of the old Acts regarding march fences, and enable them to put forward a claim such as that in the present action. Though the Act does not expressly say it, I would infer from section 8 that it was contemplated that the crofter should erect these fences for himself, for it provides that on renouncing his tenancy or being removed from his holding he shall be entitled to compensation for any permanent improvements provided “they have been executed or paid for by the crofter or his predecessors in the same family,” and in these permanent improvements are included walls and fences as mentioned in the schedule appended to the Act. I may add that in fixing a fair rent the commissioners under the Act took the value of the crofts as they stood, and I cannot order the landlord to put any expenditure upon them for which he is to get no return, either in the shape of additional rent or interest from his tenants, nor can I order the tenants to make any improvements on their holdings which they are not bound to make either by law or by their leases.”

The pursuers appealed to the Sheriff ( M'Kechnie), who on 13th April 1894 recalled the interlocutor of the Sheriff-Substitute in so far as it found the action as directed against Mr Dalgleish to be irrelevant, found it relevant against that defender, and remitted to the Sheriff-Substitute to proceed.

Mr Dalgleish appealed to the Court of Session for jury trial, where it was again argued for the appellant that the pursuers had no title to sue. Doubtless the Crofters Act 1886 conferred certain privileges upon crofter-tenants, and laid certain restrictions upon the landlord's rights in dealing with their tenants, but notwithstanding these privileges and limitations the crofters still remained tenants and the landlord remained sole proprietor. The right conferred upon heritors by the Act of 1661 could only be exercised by proprietors, and could not, as even the Sheriff had held, be exercised by tenants. It was therefore not available to the pursuers.

Argued for the respondents—In the reasons stated by the Sheriff crofters were to be regarded as heritors within the meaning of the Act 1661, c. 41.

At advising—