Scottish Court of Session Decisions

On 28th January 1914 John Macdonald, Limited, timber merchants, Inverness, pursuers, raised an action against Lord Blyths—wood, defender, to recover £230, 10s. as damages for wrongous use of interdict.

The pursuers averred—“(Cond. 2) In January 1913 the pursuers purchased from Sir Kenneth Matheson the whole matured timber on the estate of Balmacara, in the county of Ross and Cromarty, with the exception of what was growing within the policies of Balmacara House. Sir Kenneth Matheson, the seller, was proprietor of Balmacara till 1911, when he sold the estate to Mr William James Anton of Lansdowne Lodge, Tyndall's Park, Clifton, Bristol. The timber on the estate, however, was not sold to Mr Anton but remained the property of Sir Kenneth Matheson. (Cond. 5) The pursuers … in the execution of their contract in February 1913 proceeded to erect a sawmill at the point marked (1) on the plan. This spot, which from time immemorial has been used by the people of the district for depositing material awaiting shipment, and had been used by the pursuers under.… prior contracts, forms part of Mrs Finlayson's holding as after mentioned, and was pointed out to the pursuers by Sir Kenneth Matheson's overseer, under whose direction they proceeded to erect their sawmill. (Cond. 6) In February 1913 the defender raised a suspension and interdict under which he craved the Court “to interdict, prohibit, and discharge the respondents, their agents and servants, and all others acting by their authority, (first) from entering upon any portion of the ground leased to the complainer by minute of agreement between William James Anton of Landsdowne Lodge, Tyndall's Park, Clifton, Bristol, and the complainer, dated the 21st and 24th days of April 1911, being the ground described in said minute of agreement and shown as enclosed within red lines marked upon the plan annexed and signed as relative thereto; (second) from felling, injuring,

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or otherwise interfering with any of the timber upon the ground so leased; and (third) from erecting a sawmill, or buildings, or other erections of any kind, on said ground or any part thereof, and from digging foundations in, or in any way trenching, cutting up, or interfering with said ground for the purpose of erecting buildings or other erections of any kind thereon; and further, to ordain the respondents to fill up any trenches or other excavations made by them on the said ground, or any part thereof, and to restore the same to the state in which it was prior to the operations of the respondents thereon; and to grant interim interdict.” On 25th February and 7th March respectively the Lord Ordinary on the Bills pronounced the following interlocutors:—“ Edinburgh, 25th February 1913.—To see and answer within eight days, and to be intimated; meantime grants interim interdict. Edinburgh, 7th March 1913.—The Lord Ordinary having considered the note for the complainer, in respect the note of suspension and interdict has been duly intimated to the respondents, that the induciæ have expired, that no appearance has been entered, nor answers lodged, passes the note, and continues the interdict.” (Cond. 7) The interim interdict thus obtained by the defender was obtained on a statement of facts which falsely stated that the whole ground within the red line on the plan was let to him under a minute of agreement dated 21st and 24th April 1911 in his favour by Mr Anton, and that he had the sole right to the use of the ground so leased, and did not disclose the fact of which he was well aware that by order of the Land Court dated 11th July 1912, made in an application which at his special request had been opposed by the landlord, Mrs Finlayson, widow, Balmacara Mains, had been declared to be a statutory small tenant under the Small Landholders (Scotland) Act of the greater part of the subjects comprised in the alleged lease.… (Cond. 8) No plan was served upon the pursuers with the note of suspension and interdict, and the pursuers were unaware that the interim interdict was intended to cover, or did in fact cover, Mrs Finlay son's holding. Further, the pursuers were induced by the false statements in the defender's statement of facts erroneously to believe that the original site of their sawmill mentioned in condescendence 5 hereof did not form part of Mrs Finlayson's holding. In that belief the pursuers felt bound to remove the said mill from the said site, and they accepted an offer made by Mrs Finlayson to allow them to erect the mill in a field which the defender admitted to form part of her holding on their paying her £5 an acre for the ground so used, and accordingly removed the mill to the site marked (2) on the said plan. The pursuers believed that they had thus removed all possible cause of objection on the part of the defender, and accordingly allowed the interlocutors of 25th February and 7th March to be pronounced in their absence.”

The pursuers pleaded—“The pursuers having in consequence of the interim interdict wrongfully obtained by the defender suffered loss and damage to the extent condescended on, are entitled to decree as concluded for.”

The defender pleaded, inter alia—“(1) The pursuers' statements being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed. (3) The defenders should be assoilized in respect that (a) the loss and injury alleged to have been sustained by the pursuers was entirely due to their unlawful actings; ( b) the pursuers were not prevented by any interdict obtained by the defender from doing anything which they had a legal right to do.”

On 5th June 1914 the Lord Ordinary ( Ormidale) having heard counsel for the parties in the procedure roll on the question of relevancy, allowed the parties a proof of their averments.

Opinion.—“The defender pleads that the pursuers' averments are irrelevant and that the action ought to be dismissed.

“I am unable to give effect to this plea. That being so, it is not necessary or desirable at this stage to indicate any opinion on many of the questions discussed at the hearing. It is sufficient to say that in my opinion the pursuers have sufficiently set out that in consequence of an interdict wrongfully obtained against them they have suffered considerable loss and damage.

“With reference to the law ascertained by the case of Aird v. School Board of Tarbert, 1907 SC 305, the facts as disclosed by the pursuers' averments do not warrant its application. The interdict said to have been wrongously obtained has been recalled. That shows that it ought not to have been asked for. That is not sufficient per se to found an action of damages. The interdict must have operated a civil wrong. Now the pursuer set out that it did so operate, for it prevented them, inter alia, using a portion of ground for the site of their sawmill which they aver they were quite entitled to use; that they were in consequence compelled to change the site of their mill. Further, they aver that they were prevented from using the existing road to their mill, and forced at a great cost to make a new road. It is said that the pursuers have not disclosed any title to use either the ground occupied by their mill or the road in question, and that it is enough for the defender to show that whether he has the right to prevent them so using the ground and road or not someone else has. It appears to me to be a sufficient ground for repelling that contention, that so far as is disclosed in any proceedings to which I was referred, no one but the defender has challenged the pursuers' right. Since the interlocutor of Lord Skerrington was pronounced recalling the interim interdict of which they complain, the pursuers, from anything that appears, might have gone on to use the road which because of the interdict they had up to that date been prevented from using. It seems to me that I must take it that the approach road was part of the subjects let to Mrs Finlayson in the sense that it is included in that piece of ground forming part of the farm of

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Balmacara Mains of which Mrs Finlayson is the statutory small tenant, otherwise the interim interdict would have directly applied to it. And in the same way as regards the first site selected for the sawmill, while I must take it that it was within the subjects covered by the minute of agreement entered into between Mr Anton and Lord Biythswood to the effect of entitling Lord Biythswood to prevent the pursuers cutting down trees, it was quoad ultra not so, but was in fact on the ground forming part of the farm of Balmacara Mains. The averments having reference to the operations of the pursuers on the road, it is to be noted, were held by Lord Skerrington irrelevant to infer a right in Lord Biythswood to get the interdict craved, except as to the cutting down of trees. That is not res judicata with reference to Lord Blythswood's right, and it may be that he may yet establish his right. I am informed that he is endeavouring to do so in an action pending before Lord Hunter, and he also maintains his right in this action. It appears to me that having regard to the terms of the Balmacara Mains lease and the minute of agreement there is warrant for Lord Blythswood's contention, but it does' not appear to me that at this stage and without inquiry of any sort I am in a position to decide the question, especially in an action to which neither Mrs Finlayson nor Mr Anton is a party. It may be—I do not say it certainly would be—that if Lord Biythswood is successful in establishing his contention, the law of Aird's case would become applicable.…

Accordingly I cannot dismiss the action as irrelevant.…

I shall allow a proof before answer. I think it right to add that while the pursuers must lead in the proof it will be on the defender to prove that he had or has the right to prevent the construction of the sawmill on the site number (1) in respect that it necessitated the cutting down of trees, and to prevent the use by the pursuers of the road in question.

“With reference to the action pending before Lord Hunter, in which I understand the question of the pursuers' right to use the road—or rather the defender's right to prevent their using it—is sharply raised, it is impossible, if his Lordship allows a proof in that action, to permit two inquiries into the same matter, and parties must endeavour—it may require the assistance of the Court—to take steps to obviate this.”

The defender reclaimed, and argued—Even assuming that the interdict had been wrongfully obtained by the defender, the pursuers were not entitled to recover damages, because they had neither right nor title to the use of the ground in question. The pursuers had suffered no legal wrong in being interdicted from doing that which they had no right to do. The pursuers were merely “squatters.” The following authorities were cited— Clippens Oil Company, Limited v. Edinburgh and District Water Trustees, March 20, 1906, 8 F. 731, per Lord Dunedin, at p. 751, 43 S.L.R. 540; Aird v. Tarbert School Board, 1907 SC 305, per Lord Kinnear, at p. 310, 44 S.L.R. 223.

Argued for the respondents—Assuming that the pursuers were “squatters” they were entitled to recover damages for the loss sustained by them arising out of the interdict wrongfully obtained against them by defender. The defender had no title to evict the pursuers or to obtain interdict against them— Miller v. Hunter, March 23, 1865, 3 Macph. 740; Jack v. Begg, October 26. 1875, 3 R. 35,13 S.L.R. 17; The Clippens Oil Company, Limited v. Edinburgh and District Water Trustees, 1907 S.C. (H.L.) p. 9, per Lord Collins, at p. 13, 44 S.L.R. 669.

At advising—