Scottish Court of Session Decisions

LORD PRESIDENT (Cooper).—This action arises out of certain contracts, into the particulars of which I need not enter, whereby the pursuer, a timber merchant in Ross-shire, acquired right on certain conditions to enter upon the Balnagown estate and fell and remove a large quantity of growing timber. Under the contracts provision was made, amongst other things, for a time limit after which the operations should cease and no further timber should be removed. That time limit has long since expired, and there still remain on the Balnagown estate considerable quantities of felled timber severed by the pursuer, but not removed by the date when his right of entry and removal had lapsed. Matters having become controversial between the parties, the compearing defender obtained interim interdict in the local Sheriff Court against the pursuer entering upon the estate and removing the felled timber; and there matters stood from April 1947 until the present action was raised. In this action the pursuer concludes against the defender for delivery by the defender of the timber severed by him on the estate and presently lying thereon in which the pursuer has a right of property under certain specified contracts, and, failing delivery within such period as the Court might appoint, for payment of a sum of £6000, described in the condescendence as the value of the timber in question.

In order to clear the ground, may I say that a side issue was raised as to whether some of the timber had not been severed after the dates for final removal specified in the contract. The averment on that subject is introduced by the defender in his answer 4, and it is, in my view, much too defective in specification to be remitted for probation. Accordingly, I proceed to deal with the case upon the footing that the pleadings reveal to us nothing but timber which had been severed from the ground by the pursuer before the expiry of the contractual period and which has since been lying there awaiting removal.

In the Outer House the point on which the Lord Ordinary's decision was based was a pure point of law raised by (a) the allegation of the pursuer that the severed timber became his property as from the time of severance, when it ceased to be pars soli and had reached deliverable state, and (b) the contradictory allegation of the defender in his answer 5 that the pursuer has no right in, and is not entitled to delivery of, any timber not removed by him prior to the prescribed date of removal. That is a sharp clear-cut issue, and the Lord Ordinary in substance decided it upon the view that the pursuer's contention was well founded. I do not find it necessary to examine narrowly the Lord Ordinary's precise grounds of judgment, but it seems to me that he took more from the case of Jones v. Tankerville than that case will bear; and for myself I should rather put my choice between the conflicting contentions on slightly different grounds. The position as I see it by Scots law—and so far as I can judge English law is the same—is this, that under a contract of the type here in question, whereby standing trees are made the subject of an agreement to sell under which the prospective purchaser is authorised himself to enter upon the lands, fell the timber, put it into a deliverable state, and then take it away—that under such a contract, in the absence of any contra-indication in the stipulations of the parties, the property in the timber passes from seller to buyer on severance from the ground. Severance transforms the tree into timber. That rule is in harmony with the decision of this Court in the case of Morison v. Lockhart, and with the subsequent English case (in which Morison v. Lockhart was followed) of Kursell. In this instance there are no contra-indications in the agreements. I accordingly conclude that there is no foundation to Mr Clyde's contention that the property did not pass at the phase I have indicated. Indeed, Mr Clyde's argument seemed to me, when pressed to its logical conclusion, to lead to unacceptable results, for it involved that the whole emphasis in transferring property was to be placed not on severance of the growing timber from the ground, but upon the removal of the felled timber beyond the boundaries of the estate—a doctrine for which he found no warrant except in a phrase in Bell's Principles dealing with the history of the law and founded upon authorities dating from a time prior to the Mercantile Law Amendment Act, when the law of Scotland on this subject was widely different from what it has since become. In addition, it seems to me that Mr Clyde's argument involved that two business men, forming a business contract of this kind, must be assumed to have intended that, if any accident prevented the completion of the removal of the felled timber from the estate by a prescribed date, a kind of irritancy or forfeiture should operate to the effect of enabling the seller both to keep the purchase price and to retain the felled timber which he had sold for that purchase price. Such an intention I cannot infer.

On the particular question on which the parties have joined issue I am accordingly in favour of the pursuer; but the working of the remedy is not such a simple matter. The Lord Ordinary, in the interlocutor which is submitted for our review, decerned against the defender for delivery in terms of the first part of the first conclusion of the summons, appointing delivery to be carried through by an unspecified date. It is impossible for us with propriety to pronounce any decree ad factum prœstandum which is not absolutely precise in every particular, both as to time and as to place, and we are not yet in a position to give such particularity to any order in this case. My suggestion, accordingly, is that we should confine ourselves at this stage to making declaratory findings as to the rights of parties, and that we should then continue the case to enable an effort to be made by the parties to work out their rights. The findings which I suggest should enter our interlocutor are of this type—(first) that we affirm the proposition that, as from the date of severance, the property in the felled timber passed to the pursuer, and (second) that the pursuer is entitled by one method or another to regain possession of his property which he seeks to vindicate, and that it is either for the defender to allow the pursuer to enter upon the land, on such conditions as may be agreed, for the limited purpose of taking possession of his property and removing it, or alternatively, if the defender so prefers, that he himself should, on such terms as may be agreed, make the timber available to the pursuer at certain points for acceptance by him. In the last resort, if neither of these suggestions proves to be feasible, then the case will have to go back to the Outer House for the purpose of determining in the light of a proof what sum of money must be paid by the defender to the pursuer as the fair equivalent of the pursuer's property which, on the view I take of the law, the defender is wrongfully withholding. I so move your Lordships.

LORD CARMONT .—I agree.

LORD RUSSELL .—I am of the same opinion.

LORD KEITH .—I agree. I would just make one qualification, and that is, I would reserve my opinion as to whether the pursuer is not entitled to decree of delivery in preference to decree for the value of the timber until we have seen what circumstances parties may put before the Court which may relate to the possibility of delivery of this timber. I am not prepared to say that the pursuer is not entitled to delivery of the timber until I know the whole circumstances of the whole case.

LORD PRESIDENT (Cooper).—I might say that I fully accept the addition that Lord Keith has made. I was solely concerned to indicate all the possibilities that might eventually emerge; but I entirely accept it that, when we have exhausted the first stage of my proposals, we leave ourselves with an open mind as to what shape the final decree might take.