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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Dempster and Others v. Cleghorn and Others [1813] UKHL 2_Dow_40 (29 November 1813)
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SCOTTISH_HoL_JURY_COURT
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(1813) 2 Dow 40
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.
During the Session, 1813–14.
53 Geo. III.
p>SCOTLAND.
APPEAL FROM THE COURT OF SESSION.
No. 5
v.
SERVITUDE.—ST ANDREW'S GOLF CAUSE.
Servitude, or right of playing golf without obstruction on the golfing links of St. Andrew's, claimed by certain persons, inhabitants of that city and members of the St. Andrew's Golf Club, on the ground of immemorial custom, for the inhabitants, and all others choosing to resort thither for the purpose of playing golf. The title of the Respondents to pursue in the above character sustained by the Court of Session; but, on account of discrepancies, real or supposed, between the different interlocutors, the whole cause remitted for review.
1797 Feu of St. Andrew's golfing links to Lord Kellie.
Terms of the feu disposition.
In 1797, the magistrates and town council of St. Andrew's, proprietors of the golfing links in the neighbourhood of that city, sold these links to the Earl of Kellie, who was then Provost of St. Andrew's. The links were immediately before this let to a person of the name of Ritchie, in whose lease there was this condition among others:—
“ The tacksman shall not have it in his power to
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make use of the links as a warren: but the magistrates shall have power to give orders at any time for the destruction of the rabbits on the said links in such way and manner as they please,” &c.
In the feu disposition to Lord Kellie, the magistrates, &c. conveyed to him “ all and whole the lands belonging to the patrimony of the city of St. Andrew, called Pilmore, with the remanent links and commonty of the said city, with the whole parts, pendicles, privileges thereto belonging, as the same were lately possessed by James Ritchie, tenant thereof: reserving to the burgesses of the said city, standing in the stent roll, allenarly power and liberty to cast and win divots upon the said links and commonty, for flanking and rigging, conform to use and wont, and also for repairing the town's mills, leads, and dams, under the reservation always that no hurt or damage shall be done Thereby to the golf links, nor shall it be in the power of any proprietors of said Pilmore links to plough up any part of the said golf links in all time coming: but the same shall be reserved entirely as it has been in times past, for the comfort and amusement of the inhabitants and others who shall resort thither for that purpose.”
Lord Kellie lets the links, with liberty to stock with rabbits.
1799. Sale of the links to the Appellants (Dempsters.)
Action of declarator.
It appeared that Lord Kellie did not conceive that he was under any restraint as to keeping rabbits, (to which kind of stock the ground seemed to be best adapted,) and accordingly he let the links to a tenant, with liberty to stock and use them as a rabbit-warren; and, in order to improve the stock, promised to send him some breeders from his own
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Appellants object to the title of Respondents to insist in the action.
Grounds of the objection.
The Defenders objected in limine to the title of the Pursuers to insist in the action; the ground of which objection was, that the Pursuers did not
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The Pursuers contended that the authorities cited by the Defenders did not apply, or that they had been disregarded in later decisions:— Sinclair v. Magistrates of Dysart, Feb. 10, 1779, Fac. Coll.— Coomb v. Magistrates of Edinburgh, Jan. l6, 1794.
May 17, 1805. Interlocutor of the Court of Session sustaining the title of the Pursuers (Respondents) to insist in the action.
The cause being reported to the Court by Polkamnet, (Ordinary,) they pronounced an interlocutor “ sustaining the title of the Pursuers to insist in the action,” without saying any thing as to Cheape.
Condescendance of the Respondents.
The cause being remitted to the Lord Ordinary,
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Answers.
The Defenders, in their answers, admitted that they had protected the rabbit stock, and insisted on their right to do so; but denied that the golfing course was thereby injured. A separate condescendance was given in for Cheape, who stated that his property was infested by the rabbits of the Defenders, and that he had a right to have that species of stock removed or destroyed; to which the Defenders answered that Cheape had a stock of rabbits of his own, by which alone his property was infested.
Proof.
A proof having been led, it appeared, from a contract between the town and the Archbishop of St. Andrew's, in 1552, and from the tacks granted by the town, and a variety of oral testimony, that rabbits had always existed in the links, and that the tenants sometimes protected them for their own exclusive use; though Ritchie, the tenant before mentioned, being expressly restrained from using the links as a rabbit-warren, encouraged the destroying of the rabbits as injurious to the sheep, which was his stock. There was much contradictory evidence as to the question, Whether or not
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Magistrates of St. Andrew's sist themselves as parties.
About this stage of the proceedings, the magistrates of St. Andrew's sisted themselves as parties; but it appeared, from the interlocutor pronounced, that the Court had rather proceeded on the ground of the Pursuers' title as before sustained. The interlocutor (Feb. 19, 1806) was as follows:—
Feb. 19, 1806. Interlocutor declaring in terms of the libel.
“ The Lords having advised the state of the process, testimonies of the witnesses adduced, and heard counsel for the parties thereon in their own presence, with the minute now given in for the magistrates of St. Andrew's, sisting themselves as Pursuers in this action, the title of the pursuers being already sustained by an interlocutor now final; the Lords find, decern, and declare, in terms of the conclusions of the libel, excepting in so far as the same concludes for removing the Defenders from the links, and that they should be obliged to destroy the rabbits, and for damages and expenses of process; but find and declare, that the Pursuers and the inhabitants of St. Andrew's and others have right to take, kill, and destroy the rabbits upon the said links, as they were formerly in use to do; find the Defenders, conjunctly and severally, liable to the Pursuers in the full expense of contract, but in no other expense, and decern.”
A reclaiming petition having been given in against this interlocutor, the Court recalled it, to
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“ The Lords having heard this petition in respect that the interlocutor reclaimed against, in so far as it does thereby find and declare, that the Pursuers, the inhabitants of St. Andrew's and others, have right to take, kill, and destroy the rabbits upon the said links, as they were formerly in use to do, goes beyond the conclusions of the libel; they recall the said finding as incompetent, in hoc statu, without prejudice to the question when tried in a proper shape; but quoad ultra, adhere to the interlocutor complained of, and refuse the desire of the petition.”
Appeal in the declarator.
Against these interlocutors the Defenders appealed.
Suspension by Appellants, and interdict granted, 29th Dec. 1806.
In the mean time, the golf club and magistrates of St. Andrew's caused a multitude of the inhabitants to be assembled, who proceeded to destroy the rabbits. The Defenders presented a bill of suspension, and prayed an interdict, which was granted; and the cause having been reported by Lord Armadale, the Court pronounced the following interlocutor:—
Interlocutor in the suspension.
“ Upon report of Lord Armadale, and having advised the mutual informations for the parties, the Lords find, that the Chargers must confine themselves to what has been the immemorial practice of killing rabbits on what is denominated the links or common of St. Andrew's, exclusive of such parts thereof as shall happen to be under crops at the time; and to this extent, find the
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letters orderly proceeded, and recall interdict, but quoad ultra suspend the letters, and decern.”
Appeal in the suspension.
Cross appeals by the Pursuers (Respondents.)
Against this interlocutor, likewise, the Suspenders appealed. The Respondents entered their cross appeals against the interlocutor, 19th Feb. 1806; in the declarator, in as far as it did not find that the Appellants were obliged to destroy the rabbits and preserve the links entire; and, in the suspension, against the interlocutor granting the interdict.
Feb. 10, 1779, Fac. Coll.
Romilly and Brougham (for Appellants in original, and Respondents in cross appeals.) There was no foundation for this action in the law of Scotland, or that of England, when considered with reference either to the nature of the servitude, or the character in which the Pursuers claimed. As to the nature of the right, it was quite unknown in the law of Scotland. The servitudes were predial or personal. The predial required a dominant as well as a servient tenement, except in the case of those rights to which ministers were entitled by statutes of 1593, cap. 165; and 1663, cap. 21. Here there was no dominant tenement. Personal servitudes were constituted in favour of particular persons, and expired with the individuals. But the servitude here was claimed for the whole society of golfers,—for all those who actually were golfers, or who chose to become so. Any one making the tour of Scotland might come under the description. The magistrates had only sisted themselves as parties after the interlocutor sustaining the title of the other pursuers had become final. These other parties were numerous and various, golfers, inhabitants
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Adam and Horner (for Respondents.) The magistrates at least were proper parties, and the previous defect in this point (if any) was cured when the proper parties came. The Appellants were bound by contract to keep the links in a state fit for the full enjoyment of the amusement of golfing, and this could not be done if the rabbit stock were to be encouraged. The acts prohibiting golf were intended merely for the encouragement of archery and warlike exercises, and fell into desuetude when gunpowder came to be generally used. The right of property, it was admitted, carried with it the right of keeping rabbits; but then the property might be conveyed by special contract, short of this right; and here every thing was prohibited
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Nov. 31. Judicial observations.
This cause one of great importance.
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Declarator.
Parties.
One summons made to serve for two distinct causes.
The summons in the declarator was at the instance of Hugh Cleghorn, Esq. Dr. James Playfair, who stated himself, to be Principal of the United College of St. Salvador and St. Leonard; and others who described themselves as inhabitants of St. Andrew's; Thomas Earl of Kellie, who was described as Captain of this golfing society; and others who appeared not to be inhabitants, but who lived in the neighbourhood of St. Andrew's; for themselves, and for behoof of the other inhabitants of the city of St. Andrew's, or others who might resort thither for the purpose of enjoying the comfort, exercise, and amusement of playing golf on the golfing links of St. Andrew's. These Plaintiffs, (as they would be called in England,) their Lordships would observe, were persons who sued on account of the interruption stated to be created to the playing at this game of golf. But the summons was also at the instance of James Cheape and John Hood, who were suing, not on account of the obstruction to golfing, but on account of the injury done to their property by this increase of rabbits. That, if not an objection to the summons, was certainly a singular mode of proceeding, as one summons was made to serve for two suits of perfectly different natures; and the interlocutors took no notice of the additional
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Summons stated.
Sale of the links, and reservations.
The summons, to which he prayed their Lordships' particular attention, stated, “that whereas the inhabitants of the said city of St. Andrew's, the professors and students of the University thereof, the gentlemen in the neighbourhood, and all others who chose to resort thither for the purpose of playing golf, have, for time immemorial, enjoyed the constant and uninterrupted privilege of playing golf on that ground lying on the north side of the said city, known by the name of the links, Pilmore links, or golf links of St. Andrew's; the magistrates, town council of the said city, knowing that the inhabitants thereof, and other Pursuers, had good and undoubted right to exercise the said privilege, to prevent any interuption thereof, in the tacks which they granted of the said links, not only declared that the inhabitants and others who should resort thither for the purpose of playing golf, should have right and liberty so to do, as they had done in former times past memory of man; but, in order that the said golf links might be preserved in the same good order for golfing in which they had been kept for past ages, the magistrates and town council appropriated the said grounds for the pasture of sheep, and restricted the tenant that he should not plough any part of the said golfing course, nor cast feal or divots thereon, nor use the same in any way by which the said golfing course might be
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Condition in the articles of sale that the golf links should be preserved as in times past.
If the cause should be considered as resting on this ground in the summons, then the question would be, Whether the links had been preserved entirely as in times past? This was the utmost that was claimed.
Lord Kellie, who purchased the links from the town, thought himself entitled to stock with rabbits.
First branch of the summons. Complaints of the golfers.
Then the summons stated that Lord Kellie, who was represented as Captain of these golfers, had become the purchaser, and that he sold the links in question to the Appellants. It had occurred to him, from what had passed at the bar, that Lord Kellie, after he had become the purchaser, certainly thought that it had been allowed to keep rabbits on these links, or that he might do it, as he had granted a missive, with a view to a lease of the ground, giving liberty to stock the links with rabbits; and it was material to observe that the town-clerk of St. Andrew's, who appeared to be also secretary to the golfing society, seemed to have acted as Lord Kellie's man of business in this transaction. The summons went on to state, “that the Dempsters, regardless of the rights of the Pursuers, and Begbie, the tenant, had stocked the links with rabbits, by bringing rabbits in great numbers from other grounds; and which rabbits, thus introduced into the links, made holes and burrows in the ground of the golfing course, whereby the same was already much injured, and, if not prevented, would soon be rendered unfit for playing golf.” It then went on to state
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Respondents assert their right as founded on immemorial enjoyment and prescription.
No allegation in the declarator that all had a right to go upon the links and kill rabbits.
Their Lordships would then advert to what the summons asserted, and what it did not assert. First, it asserted that the Pursuers had a right paramount to any feu, grant, or disposition, of these links, founded on immemorial enjoyment and prescription; and that the reservations made by the corporation were in view of a right antecedently existing, and not depending merely upon any present contract, or right not created, but acknowledged as founded on prescription. Their Lordships would also observe that there was no allegation that all had a right to go upon these links to kill rabbits, as was contended in the other cause. There was no such allegation here in the first cause.
Second branch of the summons. Complaints of Cheape, &c.
Then as to that part which related to Mr. Cheape and his tenant, the summons stated, “that the said rabbits, thus brought into the said links, trespassed upon the farm of Balgrove, belonging to the said James Cheape, and possessed by the said John Hood, as tenant therein, (and which are separated from the links for more than a mile by a road only), by coming over in great numbers and destroying the crops in summer and the wheat and turnip in winter; and upon which road the said Charles and Cathcart Dempster, and James Begbie, their tenant, have of late set traps and stamps in great numbers, and have also strewed poison and other noxious drugs on the said open links, by which the said John Hood and several others have lost dogs, and which has
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And then it stated that, “ true it was, that the Pursuers and others, as being entitled to the said privilege of playing golf on the said links, and on that account entitled to restrain the proprietor, tenant, and possessor thereof from injuring the ground on the golfing course, or from doing any thing that may render the course unfit or inconvenient for golfing, have often desired the said Charles Dempster, &c. &c. not only to desist from forming the said links into a rabbit-warren, or doing any other thing whereby the said golfing course may be injured; but also to have removed or destroyed the rabbits introduced by them, &c. into the said ground, and to preserve the same in the same state and good order for golfing as it has been for ages past.”This allegation had set him right in one particular, with respect to which he had been misled by the interlocutor, which represented the summons as concluding for the removal of the Defenders from the links; whereas, it only concluded for the removal of the rabbits.
Allegation that it ought to be decreed that the Appellants should desist from putting or keeping rabbits on the links.
Then, having thus stated their case, in which their Lordships would observe what issues were joined and what were not joined nor mentioned, the summons went on to allege, “that it ought and should be found, decerned, &c. that the Pursuers, inhabitants of St. Andrew's, and others, who, by themselves, their predecessors, and authors, have enjoyed the free, immemorial, and
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The magistrates of St. Andrew's no parties to this summons.
To this summons, it would be observed, the magistrates of St. Andrew's were then no parties.
Decerniture of the Court of Session.
Then the Court, having advised this summons of declarator, went on to make what was called its grand decerniture. “The Lords of Council and Session, &c. sustain the title of the Pursuers, and decern, &c. that the Pursuers, inhabitants of St. Andrew's, and others, who, by themselves, their predecessors, and authors, have enjoyed the free, immemorial, and uninterrupted privilege before mentioned, and others who may resort thither for the enjoyment of the exercise, comfort, and amusement of playing golf, have good and undoubted right and title, at all times, and upon all occasions, to resort to the said golfing links of St. Andrew's, and there to exercise the privilege, and
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Two grounds of title:—1st, Title of Pursuers independent of acts of corporation. 2d, As flowing from acts of corporation.
Title of Pursuers to insist in action, on ground of prescription, sustained by the Court below before magistrates sisted themselves as parties.
The magistrates had at length assisted the Respondents, and he wished to have an explanation of this difficulty. The case had been argued on two grounds:—1st, The title of the Pursuers independent of the acts of the corporation, the only ground on which the Court had given an opinion. 2d, Their title as flowing from the acts of the corporation. As to the former, they had to consider what was the nature of the servitude, who they were that
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Effect of interlocutors as connected with the summons and each other.
One of the interlocutors had found, “ that the Pursuers, inhabitants of St. Andrew's, and others, had right to take, kill, and destroy the rabbits on the said links.” But this was not claimed by the summons, and the Court could not carry the matter further than the conclusions of the summons had done; and if the magistrates came in for the rights of third parties under their charters, still the same objection applied. But supposing this to have been set right in the next interlocutor, see in what inextricable confusion the interlocutors, taken altogether, were involved in the declarator and suspension. In one interlocutor, the Appellants were assoilzied from the conclusions in the libel, as far as related to their destroying their own rabbits; but it was found that the Pursuers had a right to destroy them. In the next interlocutor that latter finding was recalled as incompetent in hoc statu; so that the effect of these interlocutors was to negative the
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The suspension.
Then followed the suspension. The magistrates had raised the people by a kind of conscription for the destruction of the rabbits, and they were destroyed in great numbers. The Appellants then gave in their bill of suspension, which was nothing more than saying this, “Pray prohibit them from killing our rabbits till the question is tried.” The Court had said in the declarator, that it could not declare the right till the question came to be tried; and therefore no right had been established. But, in the suspension, the Court found, “ that the Chargers must confine themselves to what has been the immemorial practice of killing rabbits on what was denominated the links or common of St. Andrew's, exclusive of such parts thereof as should happen to be under crops at the time.” Now, how did they come at the conclusion that this was the immemorial practice? Why thus:—The interlocutor in the former cause, which had, in terms of the libel, said that the Defenders should not keep rabbits, implied that they might be killed, though they had altered that part of the interlocutor which found that the inhabitants had a right to kill and destroy, no such right having been claimed. And yet, having struck out of the interlocutor in the former cause that part which found the right of the inhabitants to kill and destroy the rabbits, in the
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Whether a servitude could be supported which would render the property over which it was claimed useless to the proprietor.
Even Ritchie's lease did not exclude rabbits.
Black cattle might be as injurious to golfing as rabbits.
Whether the right of playing golf must not be subject to all the uses to which the land could properly be applied.
The Defenders complained of this in another way. The Court below had looked at the proof in the other cause, which was no proof in this; and if it were, the Court could not properly have looked at it as to this point, because the right was not alleged in the summons. These were inconsistencies which required explanation. He was as friendly to the game of golf as any one, and, if he were a St. Andrew's student, he should be as sorry to lose that pastime as any other advantage to be derived from that University, or any other University. But the question was, Whether a servitude could be supported which subverted the use of the property over which it was claimed? If there was a reservation, had they the full benefit of that reservation? The links were to be kept as in times past. How had they been kept in times past? There always had been rabbits there. They said sheep had been kept there, and was the best stock. But were the Defenders prevented from keeping any other animals than sheep? But the sheep had been tried, and had rather failed. But then it was said that this was a wrong kind of sheep. Did they mean to say that the Defenders had a right to keep only one sort of sheep? Look at the leases; even Ritchie's lease did not exclude rabbits, but divided the right of destroying them between the magistrates and tenant. How was the matter to stand as to other animals? Their Lordships probably never had seen any of these nice golf balls; but if they happened to get
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They also said that English and other rabbits had been introduced;—but what then? A single pair would, from the extraordinary fecundity of the animal, soon fill the whole of the ground with rabbits, if the stock were protected. And it had been properly asked, how were those that had been introduced to be distinguished from them that had been there before? The strong impression on his mind was, that this right could not be supported to the extent of depriving the Defenders of the use of their property.
Dec. 3. Farther observations.
Title.
The summons in the declarator stated that the
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In cases referred to in the cause, the title in the corporation for use of burgesses, &c.
In looking into the separate cases which had been referred to in the course of the cause, where the servitudes, though not connected with a dominant tenement, were yet not absolutely personal, it would be found that these were claimed by the corporation for the use of the burgesses and other inhabitants. But of what description were these privileges, which were stated to be not merely in the corporation and inhabitants, but also in all others?
He had stated that the title so put had been affirmed by an interlocutor which had become final before the magistrates had sisted themselves as parties. At the bar here, the title had been more strongly argued on the ground of the acts of the corporation, reserving the privilege by contract; and certainly it was a different question whether such a title could be set up by prescription, and whether it might be reserved by bargain. But, on looking at the record, it appeared that the Court had given no judgment on the question of title, as founded on the acts of the corporation. The title, independent of these acts, had been sustained by an interlocutor which had become final; and on this ground the other interlocutors had proceeded, and not on the ground of any title as flowing from the acts of the corporation. Then could their Lordships decide upon a point of law which had not been under consideration in the Court below?
Difficulty in understanding the interlocutors.
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He had stated that he had found infinite difficulty in understanding the interlocutors of the Court below. In one of the interlocutors they had found that the Defenders had no right to keep rabbits, but negatived the alleged obligation upon them (the Defenders) to destroy their own own rabbits; finding, however, that the Pursuers, inhabitants, and others, had a right to destroy the rabbits; and if it had rested there, to be sure one could have understood what was meant; because, if others had a right to destroy the rabbits, that might sufficiently prevent their being kept. But, on reviewing this interlocutor, the Court found that they were wrong in declaring the right in the Pursuers to kill and destroy the rabbits, and recalled this part of the interlocutor. That reduced the finding to this,—that the Defenders were not to keep rabbits, but they were not bound to destroy or to remove them. If, then, they were not bound to destroy or remove them, (nobody else having a right to do so,) and yet were bound not to keep them, what was to be done?
Then it had been stated that English rabbits, and rabbits from other parts of Scotland, had been introduced; and it had been contended that all the rabbits ought to be removed; and then it was said that part of them ought to be removed. But it had been properly asked, how they were to distinguish the rabbits that had been lately introduced from those that had been there before? The thing was totally inextricable.
But they had further to observe the confusion, not only in the declarator, but in the suspension.
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In deciding the 2d cause, the Court ought not to have looked at the proof in the former,—and why.
Much had been said about scrapes in the course of the proceedings in the cause, but their Lordships could not easily, extricate this cause out of the scrapes in which it was involved. The object of the suspension was to prevent the magistrates from assembling all and sundry, by beat of drum, to proceed in a body to expel or kill these rabbits. The Court had said, “that they had no right to kill them, except on what was denominated the links or common of St. Andrew's, exclusive of such parts as should happen to be under crop at the time.” No proof was taken in the second cause. There was no admission in the papers. They could not regularly look at the proof in the former cause, not only because it was no proof in the second cause, but also because the Court had said that, upon that cause, they could not decide the question as to the right of the Pursuers to kill the rabbits. It was necessary, then, to remit both causes, that the Court below might review all the interlocutors.
Strong thing to say, that all who chose to do so might, for the purpose of playing golf on a man's ground, prevent its being used for the ends most beneficial to the owner.
He regretted the existence of the necessity to send this back again; but it was a strong thing to say that all who chose to do so might play at golf on a man's ground, and, for that purpose, destroy all the produce which it was best calculated to yield, and prevent its being used for those ends to which alone it could be applied beneficially for the owner. If it were possible to feed black cattle there, he had before observed that, if these balls got into what they occasionally left behind them, they would be in a worse scrape than if they got into a rabbit scrape. He repeated, that since the time of the application to Augustus by the people of
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Judgment. (Terms of the remit.)
“It is ordered and adjudged that both the said causes be remitted back to the Court of Session in Scotland to review all the interlocutors complained of; but, in the first place, to review the several interlocutors complained of in the process of suspension upon such grounds as shall be submitted to them, and, in reviewing them, to consider whether there is any proof duly made in any proceedings between the parties which could be properly resorted to, in the said process of suspension, as establishing any such immemorial practice of killing rabbits on the links of St. Andrew's, or any part thereof, as appears to be presumed to have existed by the terms of the interlocutor of the 10th, and signed the 11th, June, 1807, complained of in the process of suspension; to which practice it is, in the said interlocutor, declared that the Chargers must confine themselves, and having regard to the interlocutor of the 13th May, 1806, in the action of declarator, which recalled as incompetent the finding in that proceeding, that the Pursuers and others had right to take, kill, and destroy the rabbits upon the said links as they were formerly in use to do. And it is further ordered that the said Court of Session do, after such review of the interlocutors in the process of suspension, proceed as to them
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Solicitors: Agent for Appellants, Campbell.
Agent for Respondents, Chalmer.