Scottish Court of Session Decisions

In this action Donald Robertson, of Mayfield, Cupar, sought to interdict Andrew Muir Wright, a sheep and cattle salesman, “from allowing cattle or other bestial belonging to him, or grazing with his authority in the grass field on the lands of Wards, of which he is tenant under John Anderson, to illegally trespass on the pursuer's property, or any part thereof.”

The pursuer's lands extended along the south bank of the river Eden for about a mile. There was a footpath used by the public along the pursuer's bank. The pursuer had fenced his land inside the footpath, leaving a strip of ground (along which there was a public right-of-way) from 12 to 15 feet wide between it and the edge of the river. The land on the opposite side of the Eden for about a mile, including the lands of “Wards,” was leased for grazing purposes by Wright, and he was in use before fair-days in the district to place a large number of cattle there. The pursuer complained that the defender allowed cattle to illegally trespass on his lands by fording the Eden, breaking down the banks, and grazing on his side of the river. He averred that in this way they injured the bank.

The defender denied the trespass, and averred that he had men watching the cattle when they were on his lands, and that he took all reasonable precautions to prevent them straying or trespassing.

The pursuer pleaded—“The defender Wright's cattle, or those of others for whom he is responsible, having trespassed on the pursuer's property, and there being reason to apprehend they may again do so, the pursuer is entitled to have such trespass interdicted by the Court.”

The defender pleaded—“(1) An interdict in the terms prayed in the petition cannot competently be granted.. .. (2) The application is incompetent, the pursuer's remedy—on the supposition that the wrong complained of has been committed—being an action of damages or the statutory remedy provided by the Act 1686, cap. 11. (6) The defender having taken all reasonable and necessary precautions to prevent his cattle trespassing on the lands of Mayfield, the application is oppressive, and interdict ought not to be granted.”

On 27th October 1884 the Sheriff-Substitute ( Henderson) refused interdict on the grounds that there was no common law obligation on the defender to fence his lands or to herd his cattle so as to keep them off the pursuer's ground (Stair, i. 3, 67), and that the pursuer's remedy was to proceed under the Act 1686, cap. 11.

On appeal the Sheriff ( Crichton) “allowed the pursuer, if so advised, to lodge a minute containing the averments he offered to prove as to the defender having failed to take reasonable precautions to prevent his cattle straying on pursuer's lands.”

In the minute, which the pursuer accordingly lodged, he stated—“The pursuer believes and avers that during the whole of defender Wright's tenancy of the said field he has wrongfully and illegally failed to take reasonable precautions, or any precautions, to prevent the cattle belonging to him, and the cattle under his charge, from straying from the said field on to the pursuer's lands, and has wrongfully and illegally failed to comply with, and has contravened, the provisions of the Act 1686, cap. 11, not only by not herding, or causing to be herded, his cattle sufficiently to prevent them trespassing on the pursuer's said lands, but by not in any respect causing them to be herded so that they might not destroy his grounds; and that the foresaid trespasses and injuries were caused by the defender Wright's said failure to take reasonable or any precautions as aforesaid, and by his said failure to observe, and contravention of, the provisions of the said statute.”

On 7th February 1885 the Sheriff allowed a proof and recalled the Sheriff-Substitute's interlocutor of 27th October 1884 in hoc statu, and allowed the parties a proof of their respective averments.

“ Note.—.. . The Sheriff thinks it right to state, that should it turn out that the defender has failed to comply with the provisions of the Act 1686, as stated in the minute now lodged, the Sheriff is of opinion that the pursuer, besides the remedies of poinding the strayed cattle under the statute, or suing for damages, would be entitled to interdict.”

The import of the proof appears fully in the opinion of Lord Young and in the note to the Sheriff's final interlocutor.

On 11th July 1885, after proof had been led, the Sheriff recalled the Sheriff-Substitute's interlocutor of 27th October 1884, repelled the first and second pleas stated for the defender: Further, after findings in fact to the effect stated in

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the foregoing narrative of the facts (and a finding to the effect that the defender had ceased to be tenant of Wards), found “(6) that the defender Wright employed men to prevent his cattle fording the Eden, and straying on the banks on pursuer's side of the river; (7) that notwithstanding this precaution some of the cattle did, on the dates specified in the record, cross the Eden and graze on the lands of Mayfield; (8) that the defender, during his tenancy of the field on the farm of Wards, took in the circumstances all reasonable precautions to prevent his cattle trespassing on the pursuer's lands: Therefore finds that the pursuer was not entitled to the interdict prayed for, and dismissed the petition.

“ Note.—When this case was debated by counsel before the Sheriff so far back as 12th January 1885, it was stated that as the defender had at Martimas 1884 ceased to be tenant of the field on the lands of Wards, on the opposite side of the river Eden from the pursuer's lands of Mayfield, the question of interdict was not of importance. The pursuer, however, desired to have the opinion of the Sheriff on the question raised by the defender in his second plea-in-law, to the effect that the application was incompetent. This plea had been given effect to by the Sheriff-Substitute in the interlocutor of 27th October 1884, he being of opinion that the pursuer had no redress against the alleged trespass by the defender except by poinding of the cattle or by an action for damages. In the note to the interlocutor by the Sheriff of 7th February 1885 he stated the opinion, that if the facts then averred by the pursuer were proved he would be entitled to interdict. The Sheriff observes that in the case of Boreland v. Potts and Others, decided on 21st February 1885, where the circumstances were somewhat similar to the present, Lord Fraser held that interdict was a proper means of obtaining redress.

The Sheriff has considered the proof which has now been led, and he has come to be of opinion that the pursuer would not have been entitled to interdict in the broad terms of the prayer of the petition.

The defender had always men on the field to prevent as far as possible in the circumstances his cattle straying across the Eden on to the pursuer's lands. It is true that in consequence of the great length of the field next the river Eden, and the shallowness of the river, some of the cattle did occasionally get on to the pursuer's ground, but it appears to the Sheriff that reasonable precautions by the employment of cattle drovers were taken to prevent this, and that the interdict asked was in the circumstances uncalled for.”. . .

The pursuer appealed, and argued—It had been established by the proof that the herding was insufficient, and that cattle had in consequence strayed on to his lands. There had not been then, in point of fact, reasonable precautions taken to prevent the straying. As a matter of law, then, on these facts the pursuer was entitled to the remedy of interdict.— Turnbull v.. Coutts, February 23, 1809, 15 F.C.; Macleod's Trustees v. Macpherson, March 15, 1883, 10 R. 792.

The defender replied—Interdict was not the appropriate remedy, for at common law there was no obligation on the defender to fence his land. The only remedy open, then, to the pursuer was the statutory one (1686, cap. 11), or to sue for damages. But on the proof nothing like wilful inaction had been proved. Every reasonable precaution was taken by the defender to prevent straying. The action of interdict fell, then, to be dismissed.