Scottish Court of Session Decisions

By instrument of sasine dated 1721, Alexander Ross, of Tilliesnaught, now called Ballogie, was infeft in the said lands of Tilliesnaught “cum privilegio et libertate aucupandi et piscandi ac cum communi pastura in forrestis de Bris Glencat Glencaven et Lendrum & nec non cum speciali libertate et privilegio scindendi ligna in forresta de Bris conservandi et ædiflcandi toflas [keeping and bigging sheilds] in eadem forresta ac in forresta de Lendrum pro proprio usu dict Alexandri Ross ejusq prædict et eorum tenen dict terrarum modo solit et consuet per dict Alexandrum Ross ejusq authores et prædecessores.”

Certain questions having arisen between the proprietor of the lands of Aboyne, who had a grant of the royal forests of Birse and Glencat, of which he was forester, and the proprietor of Ballogie, with regard to their respective rights over the said forest of Birse, the dispute was referred to arbitration in 1755, and an award was pronounced to the effect that the right of property of the forest belonged to the Earl of Aboyne. The rights of common pasturage

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were also dealt with in the award, which, however, contained no finding (for no such claim had been made in the reference) as to a right of shooting in favour of the laird of Ballogie.

In 1797, and for several years afterwards, Mr Innes, the then proprietor of Ballogie, let the house to a friend, along with the privilege of fowling over the forests of Birse and Glencat.

In 1808 the Earl of Aboyne raised an action against Mr Innes to have it declared that he had the only undoubted right of property in the forests of Birse and Glencat, subject only to the restrictions and servitudes specified in the decree-arbitral of 1755, and “subject also to the further personal privilege in favour of Lewis Innes, Esquire, as proprietor of the lands of Tilliesnaught or Ballogie, of shooting wild fowl in the said forests.”

On 12th May 1809 Lord Meadowbank found “with regard to Lewis Innes, in respect of the admission by the Earl in his summons that Mr Innes has a right of hunting and fowling over the forests of Birse and Glencat, and in respect that this privilege implies, from the very nature of it, a right to communicate the same to friends, gamekeepers, and assistants, when conferred without an express restriction in that respect, sustains the defences in the declarator” (see F.C., June 22, 1813, p. 385).

The pursuer having reclaimed, the Court adhered with regard to the right of fowling, and remitted to the Lord Ordinary to hear parties as to the extent of Mr Innes's privilege, “and particularly whether it is communicable as the ordinary right or franchise of hunting and fowling.”

On 13th November 1812 Lord Meadowbank pronounced the following interlocutor:—“Observing that the usage alleged by Mr Innes prior and subsequent to the decreearbitral 1755 is not controverted by the Earl, Finds that the liberty and privilege of fowling conferred by the defender's titles is presumptione juris et de jure a grant by a verus dominus effectually burdening the right of property in the forest of Birse belonging to the pursuer, with the office and privilege of forester connected therewith: Finds that the liberty and privilege so conferred on the defender is a franchise conferred as an heritable right rendered an appendage to the property of Tilliesnaught or Ballogie, and as it affects a district created a royal forest, under the guardianship of a forester, and appears to be co-ordinate and co-effective with the rights of the grantee thereof, must be considered as a franchise, entitled, so far as it goes, to the benefit of such an establishment, and to a fair and liberal construction as to the exercise thereof, according to use and wont: Finds that the said privilege may lawfully be exercised by the defender personally, or by his gamekeeper duly authorised for that purpose, or by any qualified friends whom he may permit, whether his tenants on Ballogie or not, or whether the defender be personally present or not, but always in such way and manner as not to be abusively exercised or encroach unreasonably on or absorb the general right of fowling as well as hunting belonging to the pursuer over the said forest, and decerns and declares accordingly.”

On 25th May 1813 the Court adhered ( Earl of Aboyne v. Innes, F.C. June 22, 1813), and this judgment was affirmed by the House of Lords on 10th July 1819, 6 Pat. App. 444.

In 1855 the Marquis of Huntly, who had succeeded to the estates of Aboyne, raised an action against James Dyce Nicol, the then proprietor of Ballogie, to have it found and declared that he had the sole and undoubted right of hunting and fowling within the forest of Birse, subject only to any privilegium aucupandi which might be established by Mr Nicol, and that such privilege was one personal to Mr Nicol and his successors in Ballogie, and could only be exercised by Mr Nicol personally or by a gamekeeper duly authorised by him, and that Mr Nicol, by granting undue authority to strangers and others to shoot, and by killing or employing others to kill game for sale, had been guilty of molesting and disturbing pursuer in the enjoyment of his lands.

The pursuer contended that in deciding the former case Lord Meadowbank had proceeded on a judicial admission by the proprietor of Aboyne, which he averred had been inadvertently and erroneously made by the proprietor's agents. The Court, however, sustained the defender's plea of res judicata on the ground inter alia that on a review of the procedure it appeared that the decision of the Court had been arrived at, not on the admission referred to, but on a construction of parties' titles— Marquis of Huntly v. Nicol, Jan. 9, 1858, 20 D. 374, 30 S. J. 211.

Thereafter the Marquis of Huntly and Mr Nicol entered into an agreement for referring the determination of their respective rights to arbitration. The reference never took place, and an interim division of the forest for shooting purposes was entered into by agreement between the parties in 1858, which was from time to time renewed, and which was acted upon down to 1894 or thereby.

In attempting to adjust a new deed of submission differences arose between the parties, and in 1895 the present Marquis of Huntly and his trustees raised this action against William Edward Nicol of Ballogie.

The action concluded for declarator “that the privilegium et libertas aucupandi, or privilege and franchise of fowling which the defender possesses under his titles to the estate of Tilliesnaught or Ballogie, is a privilege or franchise personal to the defender as proprietor of the said estate, and to his successors therein, and that it can only be exercised (1) by himself, as proprietor foresaid, and his successors foresaid, personally; (2) by his or their gamekeepers and assistant gamekeepers shooting under his or their orders for the supply of his or their house of Ballogie; and (3) by his or their friends to whom he or they may have given permission, whether such friends are tenants in the house and lands of Ballogie, or are unconnected with the said estate;

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and further, that it can only be exercised by the defender and his foresaids in such a way and manner as not to encroach unreasonably upon the pursuers' said rights: That the defender and his successors in the said estate are not entitled, in the exercise of said privilege or franchise, (1) to kill, by himself or themselves, or by his or their gamekeepers or assistant gamekeepers, or by his or their friends foresaid, game for sale either privately or in open market; or (2) to exercise the said privilege or franchise personally, and at the same time communicate the same to his or their friends foresaid not accompanied by himself or themselves; or (3) to communicate the same to more than one friend foresaid at one and the same time; or (4) to lease or otherwise transfer for hire or for valuable consideration in money or money's worth the said privilege or franchise either to his or their friends foresaid, or to strangers not being tenants of the house and lands of Ballogie; or (5) to lease or otherwise transfer for hire or for valuable consideration in money or money's worth the said privilege or franchise either to his or their friends foresaid or to strangers being tenants of the house and lands of Ballogie, or otherwise to include the said privilege or franchise in any lease of the house and lands of Ballogie as a pertinent thereof, or as a part and pertinent of the subject let; or at least (6) that he and they are not entitled to lease or otherwise transfer for hire the said privilege or franchise, and at the same time to exercise the same personally; or (7) to lease or otherwise transfer for hire the said privilege or franchise to more than one tenant at one and the same time : Or otherwise, that the defender is only entitled to exercise said privilege or franchise of shooting in such way and manner and subject to such conditions and under such limitations and regulations as our said Lords may, on consideration hereof and of the process to follow hereon, fix and determine.”

The pursuers pleaded—“(1) The defender having no right of shooting under his titles, his right is to be construed in terms of the judgments of the Courts condescended on. (2) In terms of said judgments, the defender's right of shooting can only be exercised by himself, his servants, gamekeepers, and friends. (3) The defender is only entitled to exercise the said right by way of sporting, and is not entitled to exercise it for profit, and, separatim, cannot communicate or let it to others for profit.”

The defender averred “that his right of fowling is, and has been finally declared to be, co-ordinate and co-effective with any right on the part of the pursuers, and that he is entitled to let his sporting rights in said forests, along with one or other of the mansion-houses on the estate of Ballogie; but he does not maintain any right, nor has he any desire or intention, to encroach unreasonably on the pursuers' rights.”

The defender pleaded, inter alia—-“(2) Res judicata in respect of the said proceedings.… (4) The defender ought to be assoilzied, in respect that under his titles, and in accordance with the judgments referred to on record, he has sporting rights and privileges in said forests co-ordinate and co-effective with those of the pursuer. (5) The defender being entitled to exercise his said rights, either by himself personally or by his keepers, or by any friends whom he may permit, whether tenants on Ballogie or not, or whether he is personally present or not, but always in such way and manner as not to be abusively exercised, or encroach unreasonably on or absorb the pursuers' said rights, the present action must fail.”

On 20th December 1895 the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor, by which he found (1) that by final judgment of the Court on 9th January 1858 “it is res judicata that the findings in the interlocutors pronounced by this Court and affirmed by the House of Lords” in the action raised in 1808, and determined by the House of Lords in 1819, are res judicata as to all matters therein dealt with, between the proprietor of the forest of Birse and the proprietor of the estate of Ballogie; (2) that “in so far as the conclusions of the present action refer to matters not expressly dealt with by the foresaid interlocutors and judgments, the defender's privilegium et libertas aucupandi in the forest of Birse is not subject to the conditions and limitations contended for by the pursuer: Therefore sustains the defender's second, fourth, and fifth pleas-in-law, and assoilzies him from the whole conclusions of the summons.”

Opinion.—“This summons contains conclusions which are expressly covered by the judgments of this Court and the House of Lords, in the action instituted in 1808 by the then Earl of Aboyne against the then Laird of Ballogie. As regards these conclusions there is a double res judicata, because the judgments in the action of 1808 were found to be res judicata in the case of Marquis of Huntly v. Nicol, January 9, 1858, 20 D. 374, and that judgment is itself res judicata against the present pursuers. As a matter of form, therefore, it is necessary to sustain the plea of res judicata with regard to all the matters expressly decided in the earlier of these cases. There remain, however, certain conclusions which were not dealt with in express terms by the judgments of this Court and the House of Lords, though I think they are all, or nearly all, covered by the ratio decidendi. A few of these seek to lay down some exceedingly minute and rather fanciful restrictions on the defender's right of shooting, but the main question raised by this action (and that to which I suppose it really owes its origin) is whether the defender is entitled to let his right of shooting in the forest of Birse either with or without the house of Ballogie.

The ruling document with regard to the defender's right is Lord Meadowbank's detailed interlocutor of 13th November 1812, which was affirmed by the Inner House and the House of Lords. The main propositions established by that interlocutor are (1) that the defender's liberty and privilege of fowling

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is a heritable right attached to the property of Ballogie; (2) that it is co-ordinate and co-effective with the rights of Lord Huntly; (3) that it is entitled to a fair and liberal construction as to its exercise, according to use and wont; (4) that it may lawfully be exercised not only by the defender personally, but by his gamekeeper and by any friends to whom he may give permission, whether his tenants on Ballogie or not, and whether he is personally present or not; and (5) that it must not be abusively exercised so as to encroach unreasonably on or absorb the general right of fowling belonging to the pursuers.

It is true that these propositions do not expressly affirm Ballogie's right to let the shootings, and the pursuers point to some expressions in the opinion of the Judges to the effect that it would be an abuse if he were ‘to dispose of the game for profit,’ or ‘to farm out the right as a means of profit or advantage.’ But these are only expressions of one or two individual Judges; and I think they are to be ascribed to the prevailing sentiment of the time, which was undoubtedly against the notion of making money out of a sporting right. It is consistent with this that Ballogie seems in his pleadings to have disclaimed the idea of letting the shootings for hire, although Ballogie House had been occupied as shooting quarters by a succession of tenants, who had claimed the right to shoot in the forest. That being a fact in the full view of the Court and the House of Lords, it is significant that they did not assert in their interlocutors any exclusion of Ballogie's right to let, but, on the contrary, declared that he might give permission to shoot to any of his friends, whether tenants on Ballogie or not. I observe that Lord Glenlee says—‘As to the tenants in the house of Ballogie, it is very extravagant to say that they must not shoot.’ Now, these were tenants paying a rent for the house—a rent no doubt enhanced by the sporting rights attached to it—and it is to my mind too fine a distinction to say that the right may be exercised by a tenant of that description and not by one to whom the shootings are let eo nomine.

In short, it seems to me that once you reject the idea, as this Court and the House of Lords did, that this was a personal privilege in favour of the Laird of Ballogie (like the privilege of rod fishing in the case of Duke of Richmond v. Duff, 5 Macph. 310), and affirm that it is a heritable right, co-ordinate and co-effective with that of Lord Huntly, it follows that there is no limitation in the right except that which arises from the fact that it is a joint one, and therefore to be exercised civiliter. The finding to that effect in Lord Meadowbank's interlocutor remains, and there is no averment in the presen taction that the defender's mode of exercising his privilege has unfairly encroached on the right of the pursuers in its character as a joint right.”

The pursuer reclaimed, and argued—The Lord Ordinary was wrong. The present action was not an attempt to revive old questions already decided, but was directed to finding out what the decisions meant, and how far they could be held to go. Lord Meadowbank had purposely avoided determining the question whether Ballogie could let the shooting, and had in his note expressed grave doubts as to whether he could. The other Judges, too, had said much that threw light on the interlocutor, and entitled the pursuer to raise the question of the extent of Ballogie's right. Lord Craigie thought Mr Innes could give no stranger a right to shoot. The Lord Justice-Clerk had said that Lord Aboyne would be entitled to interfere if Ballogie were to farm out the shooting as a means of profit or advantage. Such expressions showed that the interlocutor was susceptible of interpretation. The present case was a fortiori of that of Campbell v. Campbell, January 24, 1809, F.C., for the defender's right here was much lower than that of a co—proprietor of a commonty. In the contemporary ease of Earl of Aboyne v. Farquharson, November 16, 1814, F.C., aff. 6 Pat. App. 380, Lord Aboyne had got the declarator he sought.

Argued for the respondent—The Lord Ordinary was right. The question raised by the pursuer here had been determined already, or at all events it had so been held by the Court. In order to prevail, therefore, the pursuer must first reduce the interlocutor of 1858— Ross v. Mackenzie, May 27, 1836, 14 S. 845—and after that he must bring an action expressly to declare the meaning of the former interlocutors— Park's Curator v. Black, March 8, 1870, 8 Macph. 671. The present action was therefore incompetent. It really proceeded upon the assumption that the defender's privi legium was purely personal, like the right of fishing in the Duke of Richmond v. Duff, January 25, 1867, 5 Macph. 310. But a right was none the less heritable that it could not be classified with any of the familiar servitudes— Murray v. Peddie, May 25, 1880, 7 R. 804; and if one thing had been decided by the Court in the old case it was that this was a heritable right. Upon the merits of the decision of the Court in 1813, it was plain that the second branch of the case raised the question of the communicability of the right and no other, and that question had been determined on the construction of the titles. No doubt some of the dicta were unfavourable to the defender's contention, but the practical result of the decision was that letting must be allowed, because it would be a novelty to have a heritable right which could not be communicable for profit. As appeared from the report in Paton, Lord Meadowbank had by interlocutor of 12th November 1813 explained the expression “qualified friends” as meaning “any persons whom Mr Innes may permit that may lawfully exercise that permission.” Lord Meadowbank's doubts referred rather to Aboyne's remedy than to Ballogie's right. All he really meant was that Ballogie could grant no higher right by tack than he possessed himself. The right as determined by the interlocutor was co-extensive with that of the grantee of a royal forest, and that at one time at all events had been very ample,

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and permitted the forester to hunt over other people's lands— Marquis of Athole v. Laird of Faskally, M. 4653. See also Duke of Athole v. MacInroy, February 28, 1862, 24 D. 673. In certain circumstances, no doubt, the Court would regulate the defender's exercise of his undoubted right, but the pursuer here made no complaint of the defender's conduct, and had not called on the Court to lay down rules for his enjoyment of the privilege. [The defender also criticised in detail the several heads of the pursuer's declaratory conclusions.]

At advising—