Scottish Court of Session Decisions

This was an appeal against an interlocutor pronounced by Sheriff Pattison in a petition presented on 1st February 1876 by the Trustees on the Dunse estates, as proprietors of the Lands of Berrywell, against George Young, farmer and plumber, Blackadder, Westside. The petitioners prayed for interdict against the respondent “from unlawfully entering and trespassing upon said lands of Peelrig, and of Berrywell, or on any part of the said lands and estate of Dunse Castle, or in any other way interfereing with or disturbing the petitioners or their tenants in the possession of the same.” From the statements of the parties it appeared that during 1875 an action between Mr Milne Home of Wedderburn and the Police Commissioners of Dunse was pending in regard to the pollution of certain streams by the Dunse sewage, and several persons, including Young, went upon the lands of Berrywell, unchallenged, for the purposes of examining the streams, and particularly the Berrywell Burn. On 24th December 1875 the respondent wrote as follows to Buchanan, the overseer at Dunse Castle:—“ Dunse, Friday morning. Mr Buchanan,—Dear Sir, I saw Mr Hannan yesterday in Edinburgh, and am going to wire him just now. Evidence was given by Mr Homes, engineer, of the flow of water in the sewage run, which is about double Mr Hannan's measurement. He told me you had been with him. Could you come down and go with me? I want to check the flow at several places to-day (this afternoon) and try for a drain at Berrywell. Say, per bearer, if you can come, and as early as possible, and bring anything with you. Yours truly, George Young.” Buchanan accordingly went, and getting one of the Dunse Castle labourers, was joined by Young at Berrywell, and they proceeded to dig in the plantations there and near

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Berrywell House for the purpose of opening up a drain supposed to lead the sewage from the house, Young showing them where to do this, and how to trace the drain by digging holes in the earth. The men accordingly worked all that day at digging as directed, and they made numerous openings in the plantation. They also gauged the flow of water in the burn, and next day went on searching for the drain until stopped by Mr Hannan. From the respondent's statements it appeared that a telegram was after Buchanan's arrival sent to Mr Hannan, in these terms:—“From George Young, Dunse, to J. D. Hannan, Parliament House-Dunse Sewage Case, Edinburgh. I have got Buchanan, and will test several of the gaugings. Carter's appears to have been taken during high flood”—and that no answer was received thereto. The first intimation received by Young that his going to Berrywell was resented was contained in a letter, dated 30th December 1875, from the factor, in reply to which he wrote as follows:—“ Dunse, 31 st December 1875. Sir, I am favoured with your inquiry of yesterday's date, and beg to state that I am entirely responsible for asking the workmen to help me in what I did at Berrywell on Friday last, and will be glad to have a note of the time occupied, with the charge for the same, which shall be at once settled. My wire to you will show that I had no wish to do anything without your knowledge. I regret that this should have been the occasion of any unpleasantness, as I had no intention to give any offence. I am, etc., (Signed) George Young. J. D. Hannan, Esq., Dunse.” Thereafter the respondent heard no more of the matter till the petition was served.

The Dunse Trustees pleaded—“(1) The respondent having unlawfully trespassed upon the lands of the petitioners, interdict ought to be pronounced against him as craved. (2) The petitioners having been interfered with and disturbed in the possession of the said lands by the respondent, the prayer of the petition ought to be granted. (3) The circumstances set forth by the respondent in his statement of facts are irrelevant, and the defences are untenable, and ought to be repelled, with expenses.”

The respondent pleaded, inter alia—“(1) The respondent having gone to Berrywell with the reasonable belief that the factor of the petitioners knew of his intentions, and did not disapprove thereof, he ought to be assoilzied from the prayer of the petition, with expenses. (4) There having been no prior remonstrance against the respondent's conduct, and there being no likelihood of its repetition, the remedy of interdict is unnecessary and uncalled for.”

On 31st March 1876 the Sheriff-Substitute ( Dickson) pronounced an interlocutor refusing the prayer of the petition, and adding the following note:—

“ Note.—This is a petition for interdict against trespass on the petitioners' lands. Interdict is a remedy by decree of Court either against a wrong in course of being done or against an apprehended violation of a party's rights, only to be awarded on evidence of the wrong, or on reasonable grounds of apprehension that such violation is intended. After full consideration of the circumstances of this case as disclosed in the record, the Sheriff-Substitute does not think that these circumstances warrant the exercise of this remedy.

“It seems to the Sheriff-Substitute that the alleged trespass was not more than the result of a misunderstanding, and he is not sure that it was even so much. The respondent and the petitioners' factor were both interested in the defence of the Dunse Sewage case, then under trial with a jury in the Court of Session. They had some conversation in Edinburgh on 23d December, in the Parliament House, during the trial, in regard to a considerable difference between the evidence adduced for the pursuers and that furnished by the petitioners' factor, acting as engineer for the defenders in that case. The respondent, who was also actively engaged in the defence, thinking that it was their common interest to check the calculations of the pursuers' witness, and not perhaps sufficiently considering that he might offend the defenders' own skilled witnesses, having returned to Dunse, telegraphed in the forenoon of the 24th December to the latter, in Edinburgh, that he proposed to test the accuracy of the pursuers' calculations. This was no doubt also in effect testing the defenders' calculations. This telegram was received by the petitioners' factor at twelve o'clock, and he made no reply, never challenged the respondent's proceedings, but suffered him to carry them out; and now the petitioners complain of trespass. Had the petitioners' factor replied by telegram, forbidding the examination, it is fair to assume that the respondent would have stopped the operations forthwith. If such telegram had been sent, and the operations had been continued, a very different case would have been presented. But no reply having been sent, the respondent was in the circumstances entitled to assume that silence implied consent. It would be stretching matters far indeed to hold that under these circumstances the respondent committed an illegal trespass, or that reasonable grounds exist for apprehending that trespass will be committed by him.

“It is further complained that the respondent not only trespassed, but caused pits to be dug in the petitioners' lands. Assuming, however, that he was not trespassing, but was on the ground with the implied consent of the petitioners' factor, and for the purpose of aiding the defence of the case in which they were both interested, these operations being evidently directed to this end, and no damage being averred, cannot form a ground of interdict.

“The Sheriff-Substitute thinks that the whole circumstances warrant the conclusion that the respondent acted in bona fide throughout, and that there was no intentional concealment in their being no reference made in the telegram to searching for the drain.”

The Sheriff-Depute ( Pattison) recalled this judgment, and granted interdict, adding a note as follows:—

“ Note.—The fact is undoubted—indeed it is admitted by the respondent—that he did in the month of December 1875 enter upon the lands of Berrywell, and did there make or cause to be made several openings within the grounds by persons employed by him and on his sole responsibility. This he did without the leave of the original petitioners, then proprietors of the lands, or any of them or of any one authorised by them.

“It is said that the respondent believed this was agreed to, or at least that it would not be objected to. The Sheriff thinks that he had no

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good ground for such belief. The mere fact that Mr Hannan, their factor, was a witness for the defenders in the cause mentioned upon record in his capacity as civil engineer, and that the respondent's operations were with a view to aid the defence in that action, and to corroborate Mr Hannan's evidence, supposing it to be established, is really not of any relevancy. The petitioners or the proprietor of the land were not parties to that action, and there is no evidence to show that they had any interest in it. The respondent ought to have known, and must be presumed to have known, that he had no right to enter upon their lands and to make holes and open drains therein without their express consent; and he had no ground for assuming that consent or acquiescence. His telegraphic message to Mr Hannan did not import that he was to enter upon the lands and perform the different operations which he did without first obtaining the consent of the petitioners. The respondent admits that he had no direct authority from the petitioners or others acting for them to search or dig for the drain, or to employ the petitioners' servants for that purpose. The excuse that what the respondent did was in furtherance of the defence in the action, and that he acted in bona fide does not appear to the Sheriff to be of any importance. This is not an action to punish the respondent for an offence, but to prevent him from committing a trespass.

“It appears further that in the year 1870 the respondent had entered upon the lands of Peelrig, also belonging to the petitioners, and caused various drains to be opened at several parts thereof—in particular, in the barnyard field. This he says he did by authority of Mr David Milne Home of Wedderburn, but he does not allege that he had authority or permission from the petitioners or proprietor of the lands to enter upon them, or to perform these operations. He knew that Mr Milne Home of Wedderburn was not the proprietor of Peelrig, and although he says that he believes that Mr Milne Home had a legal right to examine a pipe which was in the lands, he gives no sufficient reason for that belief; he does not allege that Mr Milne Home represented that he had such a right, or that he had permission from the petitioners to cause the respondent to perform the operations which the respondent did upon his employment. His employment did not and could not justify the respondent in entering upon these lands without the proprietor's leave.

“In short, the respondent seems to have very loose and inaccurate notions of the rights of proprietors in matters of this kind, and as he does not admit that he was wrong, or undertake not to transgress in the same way again, the Sheriff thinks that the petitioners were justified in taking the present procedure to protect themselves against any repetition of such procedure on the part of the respondent, in case another occasion should arise where he might think himself entitled to do so.

“The idea thrown out in the answers to the reclaiming petition, that the respondent's character or reputation is in any way involved in this dispute, is one for which the Sheriff sees not the slightest foundation. It is not a question of character at all. It is simply a question of legal right, in which the respondent happens to be in the wrong, from what may be bad advice or bona fide ignorance, not involving any question of his character or reputation.

“The Sheriff has found the respondent liable in expenses, because, how honest soever his belief may have been as to his right to enter upon the petitioners' lands on the recent occasion, or their implied consent to his doing so, he should at once, when this was challenged and repudiated, have confessed himself in the wrong, and voluntarily undertaken never to offend in the same way again, instead of resisting the application and making up a long record, without setting forth any fact relevant to justify a defence. The Sheriff has given modified expenses only, because the respondent may have been partly misled by the petitioners' apparent tolerance of the trespass in 1870, but the modification will not be great.”

The respondent appealed to the Second Division.

At advising—