Scottish Court of Session Decisions

Angus Mackinnon and others, crofters at Middlequarter in North Uist, brought a petition in the Sheriff Court at Lochmaddy against Donald Macdonald and others, crofters at Grenitote, North Uist, in which they sought to interdict the defenders from infringing their alleged right of taking seaweed from the shore. The pursuers and their predecessors were at the date of the Crofters' Holdings (Scotland) Act 1886 in occupation of their crofts or holdings, and they averred that by the operation of that Act they were confirmed in and obtained an inalienable right in certain rights of taking seaware which they had long exercised. The defenders were tenants of certain holdings adjacent to the township of Middlequarter, and occupied their holdings under and in virtue of agreements entered into by and between them and the trustees of their late landlord (who was also the landlord of the pursuers) and the Congested Districts (Scotland) Commissioners in 1898. The defenders contended that as a pertinent to their holdings they enjoyed the right of taking seaware of which the pursuers complained.

The facts of the case are sufficiently set forth in the Sheriff's interlocutor of 10th December 1904.

The pursuers did not call the landlord as a defender, and the defenders pleaded, inter alia, “All parties not called,” maintaining that a question of the kind involved in the present action could not be decided in the absence of the landlord.

The Sheriff-Substitute ( Campbell) on 2nd March 1903 granted interim interdict, and on 23rd July 1904, after a proof, recalled the interim interdict and refused the prayer of the petition, holding that the pursuers had failed to prove their averments.

The pursuers appealed to the Sheriff ( C. N. Johnston), who on 10th December 1904 dismissed the action, sustaining the plea of the defenders “all parties not called.” He pronounced the following interlocutor:—“Finds (1) that the defenders are tenants of certain holdings in the island of North Uist formed out of the farms of Sollas and Grenitote, and occupy their holdings under and in virtue of agreements entered into by and between them and the trustees of the late Sir John William Powlett Campbell Orde, Bart., of North Uist and the Congested Districts (Scotland) Commissioners in 1898; (2) that the defenders enjoy as a pertinent of their holdings certain rights of winning seaweed on certain portions of the shore of the estate of North Uist; (3) that the defenders have exercised and propose to exercise these rights at the places, in the manner, and to the extent pointed out to them by the estate factor; (4) that the pur suers are crofters in the township of Malaglate and Middlequarter on the said estate adjoining the said farms of Sollas and Grenitote; (5) that the pursuers claim as pertinents of their crofts certain joint rights along with the defenders of winning seaweed on the said portions of the shore; (6) that the extent of pursuers' rights is not fixed or defined by any written contract, judicial decree, or finding of the Crofters Commission, or by any written estate regulutions upon which the pursuers found, and that the pursuers have failed to prove that it is fixed or defined by any immemorial usage; (7) that the pursuers base their claims upon (a) the state of possession at the date of the passing of the Crofters Act; ( b) an alleged modification thereof under a verbal arrangement with the factor in 1888; ( c) the state of possession when their fair rents were fixed in 1889; ( d) the state of possession subsequent thereto; and ( e) the alleged disability of the proprietor in respect of the foregoing considerations to make any re-arrangement or now to enforce any estate regulation of older date: Finds in law that the grounds of claim upon which pursuers rely cannot conveniently be adjudicated upon in the absence of the proprietor, and that the defenders, in the absence of the proprietor, ought not to be called upon to answer or discuss them with the pursuers: Therefore sustains the second plea-in-law for the defenders; of new recals the interim interdict; dismisses the action, and decerns,” &c.

The pursuers appealed to the Court of Session, arguing—They were not bound to call the landlord. The present was purely an action to regulate possession as between the pursuers and defenders, and no decision in it could prejudice or in any way bind the landlord— Earl of Moray v. Magistrates of Wigtown, July 8, 1870, 8 Macph. 959, 7 S.L.R. 612; Macdonald v. Macdougall, July 2, 1896, 23 D. 941, 33 S.L.R. 705; Mackay's Manual of Practice, 222.

Argued for the respondents—Although a decision in the present case might not be res judicata against the landlord, it was impossible to maintain that the matter was not one which affected his property, and that he should not have been called. Crofters were very much in the position of leaseholders, and in an action of the nature of the present action between leaseholders the landlord's presence would be indispensable.

On 16th February 1905 the Court pronounced the following interlocutor:—“The Lords sist the cause meantime to allow the landlord to sist himself as a party to the cause, adopting the proof already led, and direct the pursuer to make intimation to him accordingly.”

The landlord having intimated that he would not sist himself as a party the Court made avizandum.