Scottish Court of Session Decisions

Francis Robert Gregson of Tilliefour raised an action in the Sheriff Court of Aberdeen, Kincardine, and Banff to have John Alsop interdicted from interfering with or injuring the boundary fence erected by the pursuer along part of the west side of the farm of Mains of Afforsk.

The pursuer averred that on 30th July 1896 he caused workmen to commence to erect a boundary fence along the west side of the farm; that on the following day the defender, who was the son of the tenant of

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the farm, came up to the workmen and threatened to throw down the posts as soon as they put them up; that he repeated this conduct on a subsequent occasion; and that on the 10th August he opened a gate in the fence and let cattle through from the farm of Afforsk into land—being part of the Millstone Hill—“belonging to and occupied by the pursuer on the west side of said fence,” and on the 11th he broke down a board erected to protect the gate and again “permitted cattle to stray into the said land belonging to and occupied by the pursuer.”

The defender admitted the acts complained of, but denied that the said fence was a boundary fence. “Denied that the cattle passed (through the gate) into land belonging to and occupied by the pursuer on the west side of said fence. Explained and averred that the land in question is part of the farm of Mains of Afforsk, and has been exclusively occupied by defender's father since the commencement of his lease in 1888 as it was by the previous tenant.”

The pursuer pleaded—“(1) The pursuer being proprietor of the estate of Tilliefour, on which is the said farm of Mains of Afforsk, is entitled to put up a boundary fence as above. (2) The defender having as libelled, interfered with the fence and gate, which are the property of the pursuer, the pursuer is entitled to be protected against such interference being repeated.”

The defender pleaded—“(1) Pursuer having no right to erect the fence in question, and his proceedings in attempting to do so being unwarrantable and illegal, he is not entitled to interdict the defender, the overseer on the farm, from removing it.”

After the closing of the record, the Sheriff sisted the defender's father James Alsop, tenant of Mains of Afforsk, as a party defender to the action.

The description of the subjects let in the lease of the farm in question, which was executed in 1888, was as follows:—“All and whole that part and portion of the farm of Mains of Afforsk which belongs to the estate of Tilliefour, being that part and portion thereof lying on the north side of the straight road leading from the Chapel of Garioch Road to the Millstone Hill, which straight road forms the march between the lands hereby let, and that portion of the lands of Mains of Afforsk which belongs to the estate of Monymusk, with the houses and buildings thereon, all as some time occupied by James Brown.”

The lease also contained the following clause—“Further, the proprietor undertakes to put the dwelling-house, office houses, and the ring fence into a proper state of repair, but he shall not be bound to fence the rough pasture land lying towards the Millstone Hill, which has no boundary fence, but which the tenant may fence himself at his own expense.”

A proof was allowed, of which the import sufficiently appears from the notes of the Sheriff-Substitute and the Sheriff.

On 17th February 1897 the Sheriff-Substitute ( Robertson) found that the fence in question was not upon the boundary of the farm, but was erected upon land included in the let to the defender, and if it remained would have interfered with the access of the defender's cattle to pasture included in the let to him; and therefore refused the interdict craved, and assoilzied the defender.

Note.—… “The facts, I think, are

pretty clear. James Alsop became tenant of the farm at Martinmas 1888. The farm had been advertised as containing a certain number of acres, and that the boundaries would be pointed out by the then land-steward Mr Rule. Mr Rule did point out the boundaries to defender, and I take it as proved that the boundary he pointed out included the pasture in question; the defender says so, and he appeared to be quite a reliable witness, and he is corroborated by the witnesses Fraser and also Watt, who speaks to what Rule said to him just after defender had taken the farm; while as against this evidence there is upon this point really nothing. We may take it, therefore, as proved that Rule, whether rightly or wrongly, pointed out a boundary which includes the disputed portion as in the farm. We may further, I think, take it as clear that ever since defender entered the farm he has regularly pastured this now disputed ground. He and his son speak to it, and also other witnesses, and it is practically admitted in pursuer's letters, though of course the position taken up in the letters is that defender had been allowed to encroach over the pasture for a number of years.

No doubt, whatever was proved as to the boundaries pointed out, or subsequent possession, would be of no avail against clearly defined boundaries if stated in written lease between the parties; the lease must, if clear and unambiguous, be conclusive as to what is let. The first question, therefore, that must be disposed of in the case is, whether the terms of the lease here are so unambiguous as to be conclusive. In my opinion they are not. It will be seen that the farm is said to be let ‘all as some time occupied by James Brown,’ who was the former tenant.

But in a subsequent portion of the lease the following clause appears with reference to fencing. Further, the proprietor undertakes to put the ring fence into a proper state of repair, but he shall not be bound to fence the rough pasture land lying towards the Millstone Hill, which has no boundary fence, but which the tenant may fence at his own expense.

It appears, according to Brown's or rather his son's evidence, that he did not pasture the disputed ground. His march, he stated, was as contended for by pursuer, but it appears from Brown's lease, which is in process, that he occupied ‘as lately possessed by George Milton.’ Milton possessed under a lease granted to Charles Thom. Thom had desired to give up the farm, and Milton was accepted by the proprietor as instead of him, and he possessed under Thom's lease. Thom is examined as a witness, and states that he pastured this

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disputed ground, and considered he had the right to it under his lease.

If there were nothing further, therefore, it would be a little difficult to say what Brown's rights were, or what ‘as possessed by Brown’ really meant. But when the subsequent clause I have quoted is taken into consideration, I do not think there can be much doubt of what really was let to defender. Various plans and sketches are produced, but to my mind no intelligible explanation of the phrase ‘rough pasture lying towards the Millstone Hill which has no boundary fence’ is given, except that it is the pasture here in question, and if so it must have been included in the let, otherwise the tenant could have no reason for fencing it.…

I am disposed, therefore, to think that the lease is at least as favourable to defender's view as to pursuer's, and looking to the evidence I have already referred to as to the march actually pointed out by the man authorised to do it, and the subsequent possession, I am prepared to hold that defender has proved his case. With reference to the question of possession I should probably have referred before to what is unquestionably, in my view, a very strong indication of how matters stood. I mean as to the way in which Mr Alsop jr., seems to have been dealing with and working at fences, which, according to pursuer's contention, were not on the farm. Some of his statements as to these fences are not admitted, but in regard to one of the fences, viz., the one going from the southwest corner of field 763 in plan out to the old dyke, there is no doubt that he both erected this fence and knocked it down, surely indicating pretty clearly the state of possession as regards the ground on which the fence was.

It is no doubt stated by the witness Troup, and also by Coull, what the recognised boundary of this farm was, and there is no reason to doubt their evidence. I think it likely the mistake arose in consequence of the idea of there being a ring fence round the arable part of the farm, and the disputed part being outside of the ring fence.

It is also the fact that an acreage is given in the advertisement which corresponds with the acreage of the farm as the boundaries are stated by the landlord. I am prepared to hold, however, that even if this advertisement can be relevantly adduced as evidence when followed by a written lease, which is at least doubtful, the acreage in it is not taxative of the actual farm let to defenders ( v. Rankine, ‘Landownership,” pp. 96, 97). In the present case the words of the lease, the boundaries which have been proved to have been pointed out, and the state of possession, constitute a more reliable guide than the acreage advertised.

“I therefore hold that the land upon which this fence was being put up was included in the farm as let to defender, and that pursuer is not entitled to interdict defender from interfering with it.”

On 22nd March 1897 the Sheriff ( Crawford) affirmed the interlocutor of the Sheriff-Substitute.

Note.—“The form of this action is an interdict to prevent the tenant from interfering with the erection of a fence by the proprietor on a particular line, but the substantial question between the parties is whether a piece of rough pasture, extending to about twenty-seven acres, was or was not let to the defender as a pertinent of the farm. There is a written lease, by which the farm is let as occupied by the previous tenant Brown. The evidence of Brown's son is that his father did not use or occupy the pasture in question (of this there is some corroboration), and that the boundary contended for by the proprietor was treated by Brown as his boundary. It is said, too, that the acreage of the farm, as advertised previous to the lease, corresponds with the acreage within the boundaries claimed by the pursuer. I think the advertisement is admissible evidence in the absence of defined boundaries in the lease, but it is not taxative, and in the view I take of the case it is not of much importance. If the evidence stopped there the pursuer would have a very strong case. But I think it is displaced by the evidence on the other side. I hold it to be proved that Mr Rule, the ground-officer, in pointing out the boundaries to the defender James Alsop, told him that he was to have the rough pasture in question. Any question as to Rule's authority is excluded by the possession which followed with the knowledge and consent of the proprietor, and which included putting up, repairing, and taking down fences. The evidence to which I have referred would be sufficient to get over the reference to Brown's possession, and it is also important that Brown's lease refers to the possession of one Milton, now dead. The witness Thom says that Milton took over and held under his lease, and that he used and occupied the pasturage in question as a right. I am of opinion that, on the evidence, the defender is entitled to the pasturage. If that be so, the pursuer is not in my judgment entitled to put up the fence in question. It is true, and it is necessary for the full understanding of the case, to keep in view that in one sense the rough pasture is not part of the farm. As the tenant himself says, ‘He did not tell me that that rough pasture formed part of the farm; it was the outrun from the farm.’ The distinction between the two is, in my view, of no great importance in the case, because if the rough pasture was let to the defender, the pursuer has no right to put up a fence which will interfere with his access to it, and the avowed purpose of which is to mark that he has no right to it.… I do not think that the clause in the lease as to fencing can possibly refer to the western boundary of 763, which, indeed, as Brown's evidence shows, was sometimes under crop.… In my opinion, however, while the clause in the lease relieved the proprietor from any obligation to fence the infield land from the rough pasture on this side of the farm, the proprietor had no right to erect a fence either on the inconvenient and arbitrary line proposed, or on any line to the effect

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of shutting off the tenant against his will from the rough pasture which had been let to him.”

The pursuer appealed.

The argument of the pursuer sufficiently appears from the opinion of the Lord President, that of the defenders from the Sheriffs' notes.

At advising—