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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Houston v Dempster [1835] CA 13_492 (19 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0492.html Cite as: [1835] CA 13_492 |
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Page: 492↓
Subject_Reparation—Commonty.—
Claim of damages for alleged excess in the possession of a common by one of the common proprietors, prior to decree of division, refused to be sustained.
In 1811, the late Hugh Houston of Creech raised an action against the defender, Dempster of Skibo, then a pupil, concluding to have it declared that a certain moor, in the county of Sutherland, was common property between them, and also to have Dempster found liable in damages for encroachments thereon by himself and his predecessors, and for driving off Houston's cattle, so as to appropriate an exclusive possession. In 1816, a judgment was pronounced on a proof in this action, finding that, to the north of a certain line, the ground, with the exception of a property called Torbreck, belonging to Houston, was common, but that, to the south of that line, he had no interest. Thereafter, this process was allowed to fall asleep; but, in the year immediately preceding the judgment above mentioned, another proprietor, Gilchrist of Ospisdale, raised a summons of division of commonty as to the whole moor, both to the south and to the north of the line there referred to. Dempster pleaded in defence, that, to the south of the line, the moor was his exclusive property; but, on a trial, a verdict was obtained, finding that it was common to him and Gilchrist, and thereafter the division was proceeded with, and decree pronounced in 1828 (see ante, VII. 18), the share allotted to each being in proportion to their several valued rents, which were as follows:—Dempster's, £1470, 10s.; Houston's, £200; and Gilchrist's, £172, 1s. 2d., Scots valuation.
Against this division, Houston and Gilchrist took an appeal to the House of Lords, which is still undisposed of; and, in 1833, the pursuers, Thomas Houston and others, now in right of the late Hugh Houston, having awakened the action instituted in 1811, so far as regarded the unexhausted conclusion for damages, further raised a supplementary summons against Dempster, concluding for an additional sum of damage, on account of alleged encroachment on the common subsequent to the date of the former action, and also on account of similar alleged encroachment on the lands of Torbreck, which had been found to be the private property of Houston. In defence, Dempster, while he denied the alleged encroachments, pleaded, that, so far as regarded those said to have been committed by his predecessors, he was not liable, being an heir of entail, and not representing them; but that, at any rate, under the promiscuous possession of an undivided common, there were no proper grounds for a claim of damages on account of excess of possession beyond the extent of right as ultimately fixed in the division.
The Lord Ordinary pronounced this interlocutor, adding the subjoined note: *—“Finds the pursuers entitled to such damages as they may instruct, that they or their predecessors have sustained in consequence of their having been excluded from the fuir enjoyment of the right of commonty belonging to them, as found by the decree of this Court, of date the 28th November, 1816, through the acts or encroachments of the defender, or others for whom he may be answerable, posterior to the said date of 28th November, 1816; but sustains the defence of bona fides and uncertainty against the claim of damages regarding the said commonty anterior to that date; and so far assoilzies the defender
_________________ Footnote _________________
* “This cause is very peculiarly situated. The decree of 1810 ascertained the fact of a right of commonty on all the ground to the north of a defined line, except the lands of Wester Torbreck, found to be the exclusive property of the pursuers, and found all the ground to the south of that line to be the exclusive property of the defender. A decree of division of the common ground afterwards took place, apparently on the principle of the judgment of 1816, but which is said to go beyond that principle, and to make the common much more extensive. If the Lord Ordinary understood the counsel, an appeal has been entered against the last decree, and the pursuers avow an intention to appeal against the whole principle of the judgment in 1816, so far as it is adverse to them. But as that judgment did not exhaust the cause involved in the summons, so far as it concluded for damages, they could not appeal without leave of the Court, and having allowed five years to elapse without asking leave, it became impossible to appeal, otherwise than by obtaining a further decision of the cause on the question of damages. In this situation the Lord Ordinary has been called upon for judgment on a supplementary summons and new record on the claim of damages, and he has pronounced the above interlocutor on the principles of the claim and defences. But there is a manifest difficulty in trying the amount of damages at present, because the extent of the interests of the parties is still to await the result of appeals in the House of Lords. Whether it may be competent, when this or any other interlocutor shall become final in this Court, to take an appeal by leave of the Court, to the effect of carrying not only it, but the former interlocutors of the Court, to the House of Lords, the Lord Ordinary will not at present venture to say. But what he would recommend for saving unnecessary trouble and expense is, that if the parties acquiesce in this interlocutor, or it be adhered to by the Court, they should agree on a sum of damages for which decree may be given of consent, subject to a reference, or any other mode of adjustment, after the appeal or appeals to the House of Lords, on all the judgments or interlocutors, shall have been disposed of, in case a remit for trial shall not be made. In some such way the parties may get a judgment exhausting the summonses, and yet reserve the fair trial of the quantum of damages on any principle which may be finally determined.
“In regard to one point in the interlocutor, the Lord Ordinary has to observe, that in so far as any claim of damages is sustained anterior to the defender's own succession to the estate, he is of opinion that if such damage was incurred during the possession of Mr Hamilton Dempster, the entailer, it is entailer's debt, for which the defender must be answerable; but that if damage was incurred during the possession of Mrs Soper Dempster, as an heiress of entail, the pursuers must show that the defender represents her otherwise than as heir of entail,—a fact denied on the record.”
from the conclusions of the action, and decerns: Finds the pursuers entitled to damages, according to the terms of the libel, in so far as they can instruct that the defender or his predecessors, whom he represents, or others by his or their authority, at any time within the years of prescription, committed encroachments on the lands of Wester Torbreck, admitted and found to have been the exclusive property of the pursuers or their predecessors, or unlawfully excluded them from the possession thereof; but finds it denied that any such exclusion or encroachments took place, and also denied that the defender represents the late Mrs Soper Dempster, to whom the alleged encroachments during the years of her possession of the estate of Skibo are ascribed: Finds that, in these circumstances, there are not sufficient data in this record, without evidence or trial, for pronouncing any decree for damages; and in respect of the peculiar circumstances in which the cause is represented to stand, supersedes, in hoc statu, making any order for the trial or ascertainment of the amount of damages claimed, with liberty to either party to enrol the cause, and ask whatever order he may be advised, and reserves all questions of expenses.”
Both parties reclaimed.
The Court accordingly found that no damages were due on account of any excess of pasturage on the commonty enjoyed by any party prior to the final decree of division, and quoad ultra adhered.
Solicitors: H. Inglis and Donald, W.S.— Andrew Storie, W.S.—Agents.
