Winans v Macrae (1885)

Not in dispute

 * Murdoch Macrae was a cottager on lands leased to him through William Winnans
 * Murdoch Macrae had previously kept sheep on his property
 * William Winnans was trying to grow a forest to attract deer
 * The access road to the cottages went through this forest area
 * Murdoch Macrae had previously had his sheep venture into the forest, and they were removed after Winnan's objections
 * Murdoch Macrae came into the possession of an abandoned lamb, which was them kept and fed as a pet by his family
 * The lamb did venture into the forest, near the main road, to graze
 * Murdoch Macrae did not have the rights to have animals graze in the forest.
 * The forest was unfenced from the road

In dispute

 * William Winnans alleged that Macrae threatened to bring more animals to graze and claimed that Macrae claimed a right to graze
 * How far the lamb ventured into the forest (60-200 yards from road).

Legal issues

 * Did the Lamb's venture into the forest amount to a trespass?
 * Was this a repeated intrusion?
 * Was any damage caused?

Sherriff court
The Initial Sheriff (Substitute) ruled for the defender.
 * Finds that at Whitsunday 1882 the pursuer became tenant, under a twenty-one years’ lease, of the estate of Kiutail, comprehending the grazing or pasture farm and lands of Morvich, and that the defender occupies a cottage on the said lands of Morvich: Finds it admitted by the defender that he has no right to graze sheep or cattle on the said grazing lauds: Finds that the pursuer has failed to prove that the defender trespassed on said lands by putting a lamb to graze thereon in June or July last, or that he threatened to put more sheep or cattle thereon; therefore refuses the interdict craved; recalls the interim interdict granted on 30th July last; assoilzies the defender, and finds the pursuer liable in expenses; allows an account,”\

Sherriff Principal (on appeal)
This was on the belief that the lamb had repeatedly trespassed, and interdicted the responder from further grazing
 * The Sherrif Principal upheld the appeal for the persuer.

Inner House (on appeal) - 2nd Division
This was on the grounds that the lamb had done no material damage, and was removed the one time Macrae had been advised of its presence there. It was also noted that the lamb is an animal and preventing the animal from entering the forest was the job of the persuer by erecting a fence along the road.
 * The 5 Justices found for the defender

Justices

 * Sheriff Substitute Hill
 * Sheriff Principal MacKintosh
 * The Lord Justice-Clerk
 * Lord Young
 * Lord Craighill
 * Lord Rutherford-Clark