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Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Scott v. Tait and Russell. [1826] ScotJCR 4_Murray_57 (24 March 1826)
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Cite as: [1826] ScotJCR 4_Murray_57
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SCOTTISH_HoL_JURY_COURT
Page: 57↓
(1826) 4 Murray 57
CASES TRIED IN THE JURY COURT, AT EDINBURGH, AND ON THE CIRCUIT, FROM DECEMBER 1825 TO JULY 1828.
No. 8
v.
PRESENT,
Damages to a tenant for injury done to his farm by the overflowing of a river.
Damages by a tenant against a landlord and the trustee on his estate, for damage done by a
Page: 58↓
Defence.—Various defences were stated, but the question was reduced to the following issue.
“It being admitted that the defender, Crawfurd Tait, let in lease to the pursuer the farm of Lower Sheardale, for the period of nineteen years from and after the term of Martinmas 1820.
It being also admitted that the said defender became bound to enclose, during the spring or summer 1820, with a sufficient sea-dike, the whole of the said farm upon the north and upon the east sides, so as to prevent it being overflowed by the river Devon, and to put in tooks, and otherwise to defend the banks of the river, and to make the seadike, all at his own expence.
Whether the said Crawfurd Tait, in violation of the said obligation, failed to defend the bank of the said river, by making a sufficient sea dike upon the said farm; and whether, in consequence of the said failure on the part of the said defender, the said river did,
Page: 59↓
M'Neill opened the case, and stated the facts.
Cockburn, for the defenders, said the damage done was greatly exaggerated, and the pursuer gained by losing his farm. This was a flood beyond what had happened during the memory of man, and against which the defender was not bound to provide. The pursuer prevented the repair of the dike. He left his farm without the authority of a court of law.
Jeffrey denied that the flood was extraordinary, and said that no evidence could satisfy the jury that the pursuer contributed to the damage. In addition to the actual damage to the crop, we have proved the farm L.56 a-year worse. As the floods were frequent, the pursuer was entitled to quit his farm, the defender having broken the bargain.
Page: 60↓
It is also proved that the river overflowed; but the material question is, What loss did the flood necessarily produce to him? It is said he courted the loss; but this cannot be supported by proof of a rash expression. It is also said he injured the dike by pasturing on it, and prevented the defender from repairing it; but this has not been made out in evidence.
The main question is, Whether his removal was caused by the flood? And here it is not proved that he in any way formally intimated to the defender, that, unless the dike was put in repair, he must quit the farm; but he takes the law into his own hand, and voluntarily quits it. Had the farm been ruined, or so injured that it would produce nothing, this conduct might be justifiable; but the farm produces a good crop, and he ought to have remained unless there was some adequate cause for his removal.
The rest of the damage consists of particular articles. In so far as the defenders reaped the crop belonging to the pursuer, this is not properly an action for damages, but to restore what he has gained at the loss of the other. For the
Page: 61↓
Verdict—For the pursuer. Damages L.235, 5s. 9d.
Counsel:
Jeffrey and A. M'Neill, for the Pursuer.
Cockburn and Tait, for the Defenders.
Solicitors: (Agents, Campbell and Burnside, w. s., Taits and Young, w. s.)