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SCOTTISH_HoL_JURY_COURT

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(1813) 1 Dow 201

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS During the Session, 1812–13. 53 Geo. III.

FROM SCOTLAND.

APPEAL FROM THE COURT OF SESSION.

No. 17

Hall Appellant

v.

Ross, Esq. of Rossie Respondent

June 23, 1813.

CONTRACT.—WHERE DAMAGE IS ADMITTED, COMPENSATION MUST BE GIVEN.

Respondent, having let certain fishing stations to Appellant, erects a dock, by which the fishing is injured. Appellant claims a deduction from the rent, on account of damage, which is refused. Question comes before the Court of Session. Majority of Judges of opinion that some damage had been sustained by Appellant, but Court pronounces against his claim; some of those Judges who admitted that he had suffered damage being against him, on ground that the degree of injury could not be exactly ascertained. This judgment held to be erroneous by the House of Lords, on the principle, that where damage is admitted, some compensation is due; and cause remitted, with instructions to ascertain damage in some way or other.

Lease of Rossie fishings from Respondent to Appellant.

Respondent erects a dock in Rossie island, which injures the fishing stations. Claim of deduction from the rent, on account of the damage. Reference to arbitration, and award.

The Rossie salmon fishings in the river Southesk, near Montrose, were let by the Respondent to the Appellant, Hall, at the yearly rent of 600 l. upon a lease for 21 years. By the terms of the lease, the fishings were let to Hall, “ as they were lately possessed by John Richardson, Esquire;” and the tenant was allowed “to adopt any improvement in the mode of fishing, in any of the bays or islands formed by the sea on the island of Rossie, which

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he might think proper.” The Respondent also became bound to warrant the lease, as follows, viz. in so far as the different stations have been hitherto fished or occupied at all hands, and against all mortals; and, in so far as the said Thomas Hall, or his foresaids, may judge fit to alter and improve the same, in consequence of this liberty, or commission before written, from his own facts and deeds only.” The Respondent had resolved to erect a dry dock on the island of Rossie, in the river Southesk, and it was probable that this intention was known to the Appellant, Hall; but it did not appear that either party thought that any damage to the fishings would result from this operation, and nothing was said about it in the contract. The erection of the dock was accordingly begun, and when the first year's rent became due, Hall claimed a deduction for damage done to the fishings by the work in question; and the matter being referred to arbitration, an award was made, finding the Appellant, Hall, entitled to 130 l., for damage done in the course of one year. Hall afterwards took a protest against the Respondent in these words; “ That the dry dock, and other buildings near the same, erected during the course of the last season upon Rossie Island, by said Hercules Ross, or by others deriving right from him, have been found to be injurious to the fishing, let by him to the said Thomas Hall, in so far as they prevent and interrupt the drawing of the fishing nets at the fishing stations, opposite to said dock, and other buildings, for some hours every tide; and that the pumping of foul water from the said dock into the river Southesk, is not only injurious

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to the adjoining fishing stations, but also to the fishings in the other parts of the said river, by rendering the water in the river muddy, so as to deter the salmon from going up the river: and further, that the laying down of stones, coals, or other bulky materials in the bed of the river, effectually prevents the drawing of the fishing nets at the different places where the said stones, coals, or other materials are so laid down.”

The Respondent having commenced an action for the whole of the rent, Hall presented a bill of suspension. After proof taken, and various other proceedings in the cause, the Lord Ordinary, and afterwards the whole Court, pronounced against the lessee, and found him liable in expences. Hall having become bankrupt, Claud Russel, the trustee, on his estate, was made a party along with Hall, and they appealed from the decision of the Court of Session.

Counsel: Sir S. Romilly and Mr. Adam, Jun., for the Appellants; Mr. Thomson and Mr. Murray, for the Respondent.

Judicial observations.

Lord Eldon (Chancellor) stated the case, and requested their Lordships to observe not only that the reasons of suspension were repelled, but that the suspender was found liable in expences; which was saying in effect, that he had no ground to come into Court.

Dangerous for a Court of Justice to look for the meaning of contracting parties from circumstances not mentioned in the contract itself.

It had been argued here, that as the Respondent had, previous to the lease of these fishings to the Appellant, informed the world by public advertisement, and otherwise, of his intention to erect a dock

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on Rossie Island, the Appellant had no right to complain of damage arising from that circumstance, since he knew that the thing was intended, and yet took the lease without stating any objection on this ground. But nothing could be more dangerous than to go out of the four corners of a contract, and endeavour to find out the meaning of the parties from other circumstances not mentioned or alluded to in the contract itself.

By the terms of the lease, the fishings were let to the Appellant, Hall, as they were lately possessed by John Richardson, Esq., and the tenant was allowed “to adopt any improvement in the mode of fishing in any of the bays or islands formed by the sea, in the island of Rossie, which he might think proper.”

The Respondent also became bound to warrant the lease “in so far as the different stations have been hitherto fished or occupied at all hands, and against all mortals; and as far as respected any alterations or improvements to be introduced by the Appellant against his own acts and deeds only.”

Now, it was clearly the intent of the parties, and manifest upon the face of the contract, that the warranty was more extensive in regard to the old stations, as these were warranted against all the world. As to the rest, the Respondent justly reasoned in this manner:

“I cannot give you a warranty equally extensive as far as respects your alterations and improvements, because it is impossible for me to know what these may be, or how they may operate; all I can say is, that I shall do nothing to prevent them.”

Opinions of the Judges below, on the question of damage.

A majority of the Judges below admit, that the Appellant had sustained some damage.

The whole of the advantages mentioned in the

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contract were given to the Appellant, at a rent of 600 l. per annum; and though he could have let them for 1200 l. per annum in the second year of the lease, that would be no reason for his submitting to any damage contrary to the stipulations of the contract, of which he was to have all the advantages, at the rent of 600 l., unless it could be proved that it was damage without injury. Seven of the Judges who supported the claim must have been of opinion that there was damage in this case; and some of those who decided against the Appellant's claim, appeared to think that there might be damage. Lord Balmuto said, that there was no damage, but a great deal of inconvenience, which the Appellant might have prevented by another mode of fishing. But with great deference to the learned Judge, the Appellant under this contract had a right to fish in any way that he found most convenient; and if he was prevented from doing so by the Respondent, that was damage. Lord Armidale said, that there was damage, but that it was not specific; and Craig said, that there might be damage, but that it could not be ascertained. The Justice-Clerk said, that if there was damage, he did not know whether it was of such magnitude as to warrant the interference of the Court in this case: and he concluded by saying, “After we shall have given damages, the fishing may be more productive than ever.”

Suppose it were so, the Appellant would still have a right to compensation for any damage he had sustained. Lord Meadowbank said, there was no damage; and Lords Robertson and Glenlee did not state any grounds for

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their opinion. Four of these seven Judges then, who had decided against the Appellant, might fairly be taken to have admitted that there was, or might be, some damage in this case; and these being added to the seven who had decided in favour of the Appellant, and who of course must have conceived that there was damage, formed a majority in favour of the Appellant, to this extent, that he had sustained some damage.

The stipulations in the contract itself the only safe ground of decision.

This was one of those fish causes which had sometimes very much distressed him. He had in his possession a very learned paper on the temper and disposition of salmon, &c., which was produced in one of these causes, and which he kept as a curiosity. But if their Lordships instead of confining themselves to the terms and nature of the contract, were to decide upon philosophical speculations respecting the temper and disposition of fishes, it would be long before they could come to a satisfactory conclusion. There was less of that kind of learning here, than there had been in some other causes; but still there was a good deal of it. It was said that salmon was a nice and delicate fish, and a question had been raised whether it was fonder of clear than of muddy water; and whether clear water, or muddy water, was the natural climate of salmon; though, if their Lordships were compelled to decide upon that ground, a doubt might be suggested whether fresh water was the natural climate of salmon at all. But it was a much safer way to ask, whether the stipulations of the contract had been complied with, than to resort to these philosophical speculations for a ground of decision.

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An argument had been used, “that though the fishing in one station had been injured or lost, still if as many were caught in the remaining stations as had been caught before in the whole, there was no damage.”

But if he ( Eldon) were to take a lease of a salmon fishing with ten stations, he would rather have his ten stations according to the contract, than try in a Court of Justice whether he might not catch as many in nine stations, as in ten.

If a claim to any damages were made good, the decision ought to have been in favour of the lessee.

Now, if in England a majority of the Judges had been of opinion that some damages were due, their Lordships would never have heard of the decision being against the person who had made out his claim to damages. Too much might be given him or too little; but he could never, under such circumstances, be dismissed out of Court, with the additional loss of having to pay the expenses of the suit. It might be very often difficult to ascertain the amount of the damage, and in this country there were two modes of proceeding in such cases, viz. to prove the amount by the testimony of competent witnesses, or where there was no ground or criterion to estimate the damage, they were in the habit of giving nominal damages, but they never dismissed the claim altogether, where it appeared that there was some damage.

Damages sometimes fixed by conjecture.

Court below must fix the amount of damage in some way.

It had been said at the bar, that the award gave the amount of the damages; but he did not conceive that it could be taken as the proper measure of damage in the present action, though it was important, as connected with the original cause of the damage, and as showing that there was some

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damage. But the Lord President had said, that there were several actions usual in Scotland, where they were under the necessity of conjecturing the extent of the damage; and that those who might suffer by this had no right to complain, because it was at their peril that they entered into a contract where damages could be ascertained in no other way than by conjecture. In his opinion, they must ascertain the damage in some way; and for that purpose, it would be proper to remit the cause for review with some findings to direct the Judges below in their further proceedings in it.

One of the Judges had made a distinction between the primary and secondary use of water; and said, that it was amusing to hear fishermen complaining of the obstructions of vessels in their fishing stations; but it could not be very amusing to one who had agreed to pay 600 l. a year for fishing stations, to find himself interrupted in the use of these stations.

He proposed then to find,

1st, That, if damage had been sustained by the Appellant, compensation was due.

2d, That it appeared that some damage had been sustained—then, for the purpose of ascertaining the extent of the damage, he proposed, that the Judges should be directed to permit the Appellant to give proof of the extent of damage, if he thought proper, or if he offered no further proof, then to ascertain the amount of the damages due, by such other means as their practice authorized, and then to do what was fit and just. It must be understood, however,

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that the Appellant in giving proof of damage, ought to be confined within the limits of his own condescendance.

Lord Redesdale. All that could be inferred from the circumstance of the erection of a dock being known to be in contemplation at the time of the contract, was this, that neither party then thought that the dock would injure the fishing. If it did injure the fishing, the Respondent was still liable upon his contract to make up the loss. But this point had not been at all taken up in the pleadings. The allegation was, that the dock did no damage to the fishing, and not, that if it did any damage, the loss ought to fall on the Appellant.

Singular decision that a party admitted to have suffered some damage should not only have no compensation, but be obliged to pay the expences of the suit.

This decision was different from any thing that he knew. The contract was, that the fishings should be enjoyed as they were before. The evidence showed that they could not have been so enjoyed; and a majority of the judges had said, that the Appellant had sustained some damage, and the decision was, that he should not only have no compensation, but should also be obliged to pay the expenses of the suit. An attempt had been made to show that there had been no damage, as the quantity of fish caught had increased. But every bargain of this kind was in some measure a speculation, as the quantity of fish to be taken could never be exactly ascertained before-hand; so that, though as many should be taken at nine stations in one year as had been taken at ten in another year, the loss might still be considerable, because it was possible that if the whole of the ten stations had been used in the subsequent

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year, the quantity taken might have been much greater than in the previous year. But then there had been a difficulty in ascertaining the damage. The Court must do that in the best manner it could. In their judgment in the case of Wight v. Dicksons, (vide ante,) the judges had determined by conjecture, and a consideration of the circumstances of the case, what number of carts of coals the Dicksons ought to be supplied with in the course of each month, though there was nothing in the contract itself to show the exact number; but the Court took upon itself to ascertain it. Here too they were bound to ascertain the quantum of damage as well as they could, by proof or other means.

Disadvantage under which Scotland labours, from not having the benefit of jury-trial in civil cases.

One could not help lamenting, that Scotland had not the benefit of jury-trial. Juries here were in the habit of forming the best conclusion they could, from all the proof and circumstances in such uncertain cases: and it was to be regretted, that Scotland had not the advantage of the same mode, of having facts decided upon and settled. But the Court below must find some means of ascertaining the damage. In the case of the Earl of Morton v. Stuart, (vide ante,) the Court, in case they should have to ascertain damages, could only do it in an arbitrary way; as the injury must consist merely in disturbance, and not in any thing that could be accurately valued in money. He agreed therefore with his noble and learned friend, that the Judges must settle the amount of damage as well as their practice would permit; for where it was admitted that there was damage, it was not just that, because the person damnified could not state the

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precise amount of his loss, he should have no damages at all.

The judgment of the Court below reversed, and cause remitted with the above findings.

Solicitors: Agents for Appellant, Spottiswoode and Robertson.

Agent for Respondent, Richardson.

1813