Scottish Court of Session Decisions

At advising on 21st December 1955,—

LORD JUSTICE-CLERK (Thomson).—The pleadings and the conduct of the case before the Sheriff-substitute have given to what is a simple issue an appearance off complexity. Fortunately each side substantially accepts the findings made by the Sheriff-substitute and the case can be dealt with on that footing without further recital of the facts.

The question is whether the Sheriff-substitute was right in interdicting the first defender from exercising horses on the pursuers' fields.

Broadly speaking, interdict is granted against a wrong which is in the course of being committed or where there is reasonable ground for apprehending that a wrong is intended to be committed.

Both aspects arise. The first can be quickly dealt with. The pursuers have failed to establish that the first defender has exercised horses on their fields at any time when he did not have the right to do so. Finding (8) is definite on that point. This was the only finding attacked by the pursuers, and the only suggestion made as to how it should be altered was by converting it into a finding of not proven. This alteration would not help them, as the onus of proof is on them. Accordingly the pursuers have failed to show that the first defender had any horses to exercise or that he was in any way responsible for the horses that were exercised. It follows that they have failed to show that he was in the course of encroaching on their rights.

The second aspect is whether the pursuers have established that there is reasonable ground for apprehending that the first defender intends to encroach on their rights by exercising or authorising the exercise of horses on their fields. The Sheriff-substitute thought that they had, and that conclusion is expressed in finding (13), which is the only finding which the defender attacked. The basis of that conclusion is that the first defender, before the action was raised, in his pleadings and throughout the case before the Sheriff-substitute, maintained that he had a right to exercise horses on the pursuers' fields and that this attitude implied a present threat of encroachment even although there had been no overt act of trespass or any intimation other than his maintenance of his claim that he intended to commit any overt act of invasion. I should interpolate that I do not think it necessary to examine the grounds on which the claim was based. There were two and, as the defender apparently thought that he could succeed without substantiating them, he led no evidence in support of them and the Sheriff-substitute found that he had failed to prove either basis for his alleged claim. He does not, and of course could not, seek to contest that finding.

The case then turns on a short point. In the absence of any actual trespass or of any explicit threat of trespass, can an intention to trespass be reasonably inferred from the simple fact that the defender has maintained that he has a legal right to exercise horses in the fields?

I do not think that it can be implied, from his maintenance of his, claim in a legal process alone, that there was reasonable ground for apprehending that he intends to pass beyond the maintenance of a claim into some active step of invasion. The process of interdict is, not directed against the statement of claims but is intended to prevent people from translating words into deeds. If they so conduct themselves as to lead to reasonable apprehension that they will take action in purported exercise of the right claimed, interdict follows. It is reasonable apprehension that there is an intention to go on the lands to exercise horses that matters. It is the threat to trespass, not the threat to litigate, that leads to interdict. No doubt the statement of the claim may be so truculent and so extravagant as to lead to the reasonable inference that invasion will follow. But I do not think that that can be said here, as, so far as the facts found go, all that has happened has been the assertion of a present right in connexion with and in the course of a litigation.

What I have said seems to me to be consonant with what was held in Warrand v. Watson . There the defenders in their pleadings claimed the right to fish. On the footing that the claim was untenable, decree of interdict was pronounced de plano. The Inner House recalled that interlocutor and allowed a proof before answer. The Lord President said (at p. 262):

"I do not think that interdict ought to be granted without seeing that the defenders have been actually fishing in the waters, or have, as individuals, been asserting their intention of going on the waters because they had a right."

This makes it clear that the statement of their claim in the litigation was not enough by itself and that there ought to be either actual trespass or such an assertion of the right claimed as to lead to the reasonable apprehension that they intended to pass from words to deeds.

It was strongly pressed on us that the present case was governed not by Warrand but by the earlier case of Macleod v. Davidson, where certain observations of the Lord Justice-Clerk and Lord Young were said to yield the conclusion that the assertion of a right by a defender which was wholly inconsistent with the rights of the pursuer entitled the pursuer to interdict. Macleod was, however, a very special case. The proprietor of lands and his tenant sought to interdict certain crofters, who had by agreement with the proprietor, Major Fraser, a right of passage over the lands, from allowing their cattle to stray beyond the limits of the permitted passage. The defenders denied that they had allowed straying but also pleaded that they had certain rights beyond the limits of the passage. The proof was mainly directed to showing that the cattle had not strayed. The Sheriff pronounced decree of interdict. On appeal the argument was that the proof did not disclose that the cattle had strayed. However, during the hearing in the Inner House, a minute was lodged setting forth "that they never claimed, and did not now claim, any right of grazing their cattle on the park in question…or of entering on the said park, except in virtue of and for the purposes specified in the permission granted by the pursuer Major Fraser on 5th July 1884, and that they will use due care to prevent their cattle grazing or encroaching on the park in question." The Court asked whether the defenders proposed to have the pleas asserting a right struck out of the record, but no motion to that effect was made. In these circumstances it is hardly surprising that the Court refused the appeal. The findings showed that there had been encroachment and there was no prospect of these findings being reversed. In these circumstances the purpose of the minute was obviously a last-minute effort to save the right of passage on an undertaking to take care. The defenders' point was that the pursuers' fields would be sufficiently safeguarded by the undertaking and that it was therefore unnecessary to interdict them from using the passage. Accordingly what the Court had truly to consider was whether, in a case which would on the merits ordinarily result in interdict, there was ground for departing from the general rule. The Court thought that in the whole circumstances there was no room for making an exception in the defenders' favour. Accordingly, read secundum materiem subjectam, the opinions in Macleod do not support the view that the maintenance of a claim of right is sufficient of itself to attract interdict. It is to be observed that Macleodwas before the Court in Warrand and was expressly distinguished.

In my view, the appeal must be allowed.

LORD PATRICK .—A decree of permanent interdict is an order prohibiting a defender from doing an illegal act. It is not a punishment for advancing a claim of right which turns out to be ill-founded. It is granted only if there is a reasonable apprehension that the defender may do the illegal act. Good evidence of that apprehension in the normal case is the fact that there has been recent wrongdoing of the same kind by the defender, but the threat of wrongdoing may be proved although there has been no wrongdoing in the past. The essential thing is that the threat of illegal actings, encroaching on the pursuer's right, must be proved. See Burn-Murdoch on Interdict, paragraphs 100-102, and cases there cited.

A claim of competing right advanced by the defender in an action of interdict, unaccompanied by evidence of past illegal actings or of intention on his part to act upon that claim even though it prove unsound, does not amount to a threat of illegal action such as to justify a permanent interdict. To claim to have a right which competes with another's claim is not a wrong. A wrong is only threatened and permanent interdict only justified if the evidence justifies the inference that the defender may act in derogation of the pursuer's rights, whether his own claim be right or wrong. In short, permanent interdict is not granted because of the defender's claim to be possessed of rights but because of his threat to act in defiance of the pursuer's rights. This is most clearly established by the case of Warrand v. Watson . The Sheriff had held that in respect of the defenders' claim to be entitled to fish in the pursuer's waters there was "that threatened injury to the petitioner, and statement of a defence negative of his rights, which is itself sufficient to entitle him to protection by interdict." The Court of Session refused to sustain this, Lord Dunedin saying (at p. 262):

"I do not think that interdict ought to be granted without seeing that the defenders have been actually fishing in the waters, or have, as individuals, been asserting their intention of going on the waters because they had a right."

The contrary proposition, that the mere claim to have a right conflicting with the pursuer's rights constitutes a threat of illegal action and justifies permanent interdict, was said to be vouched by the case of Macleod v. Davidson, and there are expressions in the opinions of the Judges which, if read without regard to the facts of the case, would support this contention. The defenders had been guilty of repeated acts of illegal grazing before the action was brought, and of illegal grazing in breach of an interim interdict after the action was brought. All this the Sheriff found proved, and pronounced a permanent interdict. See the Session Papers in the cause. The defenders appealed and lodged a minute in the process asserting that they never claimed any right of grazing their cattle on the park in question. Thus they sought to avoid having a decree of interdict pronounced against them. The Court asked them whether they proposed to move that their pleas asserting such a right be struck out of the record. They made no such motion. It was in these circumstances that the Court held the presence on record of claims of right by the defenders a sufficient ground for granting interdict. There had been past invasion of the pursuers' rights, which in the normal case would have been good evidence of a threat to act illegally and would have justified a permanent interdict. This the defenders sought to avoid by averring in their minute that they had never asserted a right to do what they had done and that they would be at pains to refrain from such actions in the future. The insincerity of their protestations was demonstrated to the satisfaction of the Court by their insisting on maintaining on record claims of right which they said they never had asserted. It was not the mere presence on record of claims of right which proved the threat to act illegally and justified interdict. It was the fact that there had been wrongdoing in the past and the defenders' contumacy in maintaining on record claims of right which they said they had never made which led the Court to hold that the threat to act illegally remained, notwithstanding the terms of the defenders' minute. Macleod v. Davidson is authority for the proposition that, when there have been recent illegal actings, interdict will normally follow, unless the Court is thoroughly assured that there will be no such actings in the future. See Burn-Murdoch on Interdict, page 89. It is not authority for the proposition that the mere proponing of a claim of right amounts to a threat to act illegally, and does not conflict with Warrand v. Watson, which rejects that proposition.

Now, the pursuers failed to prove that the first defender was the owner of the horses which had committed the recent acts of trespass on their fields. They made no proper attempt to establish that he was a party to the actions of his son in trespassing with his horses on the fields in question. It was argued that there had been trespassing by the first defender as long ago as 1950. The Sheriff-substitute does not so find, nor does he rely on this. Even if established, it would, in my opinion, be too stale to justify an inference that the first defender was to-day threatening to act illegally. Substantially the only thing the pursuers could rely on as constituting a threat by the first defender to trespass on the fields in future was his contention in his defences that he had a right to exercise horses on them. The Sheriff-substitute thought this was enough to entitle the pursuers to interdict against the first defender. There is no trace of his attention having been drawn to the case of Warrand v. Watson . On principle and on the authority of that case a mere statement of a claim of right does not constitute a threat to act illegally and, when the claim is held to be ill-founded, does not justify a permanent interdict.

I am of opinion that this appeal should be allowed.

LORD MACKINTOSH .—Like your Lordships, I think that in the circumstances, so far as disclosed by the proof in this case, the learned Sheriff-substitute has gone too far in granting interdict against the first-named defender and that his interlocutor of 12th February 1955, in so far as it grants such interdict, ought to be recalled and the crave for interdict refused quoad the first-named defender. An interdict, as was pointed out by Lord Deas in Kelso School Board v. Hunter (at p. 232), is "an extraordinary remedy, not to be given except for urgent reasons, and even then not as a matter of right, but only in the exercise of a sound judicial discretion." The facts of this case, so far as these are known, do not, in my opinion, disclose any urgent reason for granting an interdict against the first-named defender nor do they, in my opinion, reveal a situation which would call for the Court in the exercise of its discretion granting any such order. No doubt it will usually be enough for the granting of an interdict that the pursuer should have a reasonable ground for apprehending that some invasion of his rights is about to be carried out by the defender, but I cannot see that any such ground for apprehension exists in the present case. On the contrary the situation as revealed by the Sheriff-substitute's findings in fact is that, although the first-named defender persisted up to the close of the hearing before him in maintaining that he had a tenancy of the ground in question and therefore a right to make use of it for exercising horses on it, he did not in fact after the date in 1954 when the pursuers' permission to him was withdrawn and while his tenancy claim was still sub judice make any use of the said ground for exercising horses upon it. Why then should the pursuers fear that he will make any such use of the ground now that his tenancy claim has been heard and disposed of by the Court? He is not proved to have ever threatened to enter on the ground after his permit from the pursuers was withdrawn and, according to the Sheriff-substitute's finding, he did not do so at any time after the intimation of the withdrawal of the permission had been made to him. In my opinion, there is no reasonable ground whatsoever for the pursuers apprehending that, although the first-named defender's tenancy claim has been negatived by the Sheriff-substitute, there is still a risk that he may go on asserting it and making use of the ground unless he be now interdicted from doing so. The first-named defender in his appeal to this Court did not dispute those findings of the Sheriff-substitute which negatived his tenancy claim and his claim to have had a permission from Mr Allan, and, in my opinion, he is bound by these findings. Why it should be assumed that, unless he is interdicted, the first-named defender will ignore the Sheriff-substitute's findings on these matters and proceed to act as if his tenancy claim had been made good, I am quite unable to see. His previous behaviour following on the withdrawal of the licence from the pursuers in April 1954 and still later during the period while his tenancy claim was still sub judice was unexceptionable and gave no ground for his being regarded as other than a law-abiding man, albeit one who might be and was in fact mistaken as to his legal rights. In short, in my opinion, the pursuers have nothing else to found on in support of their right to an interdict against the first-named defender except the bare fact that in his pleadings he averred and pled a tenancy or other permissory right to the use of the ground. That being the position, I think that the case of Warrand v. Watson, as I understand that case, is in point. In that case the defenders denied that they had fished in the pursuer's waters but averred that they had a right to do so. The Court in reversing the judgment of the Sheriff, who had granted interdict de plano, held that in the circumstances the assertion of right was not such a threatened invasion of proprietary rights as to justify interdict being granted without proof that actual trespass had taken place. There was no proof of such trespass here and therefore, in my opinion, no sufficient ground for the Sheriff-substitute granting interdict against the first-named defender, as he has done. The proposition that the mere assertion of a right in a legal process without any actual or threatened exercise of it amounts to an impending wrong requiring the protection of an interdict is to my mind an extravagant one and one which has little in law or in common sense to commend it. The case of Macleod v. Davidson, which was much relied on by the pursuers, is not, in my opinion, any authority for that proposition, because in that case the circumstances were that in addition to the assertion of the right in the pleadings there had been repeated acts of trespass which had been carried even to the length of a breach of an interim interdict. It is in the light of that background of facts and in relation to it that the opinions delivered in that case must, in my view, be read.

On the whole matter I agree that the interlocutor appealed against should be recalled, in so far as it grants interdict against the first-named defender, and the crave for interdict should be refused quoad him.

LORD BLADES .—I agree that this appeal should be allowed, and there is little I can add to what has already been said by your Lordships. Interdict is a remedy which the Court gives against a wrong in course of being done or against an apprehended violation of a party's rights, only to be granted on evidence of the wrong or on reasonable grounds of apprehension that such violation is intended. The complainer must show either that he has actually suffered, or has reasonable cause to apprehend that he may suffer, a wrong at the hands of another, before being entitled to ask an interdict against him.

The case made by the pursuers was that in February 1951 the first-named defender asked for and was granted the privilege of exercising his horses in two fields adjacent to Inverurie Golf Course. The privilege was granted during the pleasure of the Town Council and only when the fields were not required. Thereafter the first-named defender regularly exercised horses in these fields. In April 1954 the privilege was withdrawn by the Town Council. Notwithstanding the withdrawal of the privilege, however, horses in charge of the second defender and ridden by the third defender continued to be exercised in the fields. The Town Council sought to have all three defenders interdicted from exercising the horses on their property, and they obtained interdict de plano against the second and third defenders. No appeal against that grant of interdict is taken. The first-named defender, however, tabled two defences to the claim for interdict against him. In the first place, he stated that at the material time he did not own any horses; and that the horses being exercised in the fields belonged to the second-named defender. In the second place, he maintained that in any event he had a right from the grazing tenant of the fields to exercise horses on the fields and on the golf course.

The Sheriff-substitute found in fact that prior to and at the date of the withdrawal of the privilege to exercise horses in the fields the firstnamed defender did not own any horses, and that he did not exercise any horses in the fields after receiving intimation that the privilege was withdrawn; and, had it not been for the first-named defender's insistence in his second ground of defence, the Sheriff-substitute would have been disposed to refuse the crave for interdict against him. But the Sheriff-substitute regarded the second ground of defence as an attempt on the part of the first-named defender to set up a present right to exercise horses on the fields, and his view, as expressed in his finding (13), was that the first-named defender, in presently claiming any tenancy, title, or authority from the pursuers, or the Inverurie Golf Club, or the grazing tenant of the fields, is knowingly acting unlawfully and wrongously to the serious detriment and financial loss of the pursuers in the management of their property rights in the golf course and the fields. He granted interdict against the first-named defender. The learned Sheriff-substitute seems to have thought that the assertion of a right to exercise horses was equivalent to a threat to exercise them in spite of the withdrawal of the privilege.

In Warrand v. Watson the Court decided that assertion of a right was not such a threatened invasion of proprietary rights as to justify interdict being granted without proof that actual trespass had taken place. There is no proof of actual trespass here. On the contrary, the learned Sheriff-substitute has found expressly, as matter of fact, that the first-named defender "did not after the receipt of the said intimation of withdrawal of the privilege exercise any racehorses on the said fields." There was therefore no previous encroachment on the pursuers' lands such as was found to have taken place in Macleod v. Davidson, where in addition to the assertion of a right there had been repeated acts of trespass. I cannot help feeling that if the attention of the Sheriff-substitute had been drawn to these cases, and in particular to Warrand, he would not have granted interdict against the first defender.