Hugh Tennent v. The Earl of Glasgow

Factual and Procedural Background

The dispute arose after the Appellant claimed that a stone wall erected by the Respondent in 1856 caused flood damage to the Appellant’s land in June 1858. Before the wall was built, a thorn hedge allegedly allowed surplus water to escape harmlessly. The initial action, commenced by summons dated 8 June 1860 in the Sheriff Court of Ayrshire, sought £22 6 s. 6 d. in damages.

Following proof, the Sheriff substitute on 9 August 1861 found the Respondent liable for the sum sued with interest and expenses; the Sheriff principal adhered on 4 October 1861. The Respondent then advocated the cause to the Court of Session. On 12 December 1862, that court recalled the Sheriff Court interlocutors, finding the damage resulted solely from an unprecedented rainfall and not from any fault of the Respondent.

The Appellant appealed to the House of Lords, challenging both the Court of Session’s jurisdiction and its decision on liability. The House of Lords (per Judge Westbury, Judge Cranworth, and Judge Chelmsford) delivered the present opinion.

Legal Issues Presented

1. Whether the value of the cause exceeded £25—thereby permitting advocation from the Sheriff Court to the Court of Session under 16 & 17 Vict. c. 80.
2. Whether the flood damage was attributable to negligence by the Respondent in substituting a solid stone wall for a hedge, or constituted a damnum fatale (an unforeseeable act of God) for which no liability arises.
3. Whether the Court of Session’s interlocutor complied with statutory requirements to state clearly the facts and the points of law decided.

Arguments of the Parties

Appellant's Arguments

• The cause did not exceed £25; therefore the Court of Session lacked jurisdiction and the Sheriff interlocutors were final.
• Jurisdictional objections cannot be waived; consent to advocation is irrelevant.
• The Court of Session interlocutor failed to separate findings of fact from law as required by statute.
• The stone wall, unlike the former hedge, provided no openings for flood water; the Respondent was under a duty to install vents and was negligent in failing to do so.
• On the facts, the Sheriff’s findings of liability were correct and should be restored.

Respondent's Arguments

• The parties, by proceeding without objection, prorogated jurisdiction to the Court of Session.
• Adding interest to the Sheriff’s award brought the value above £25, satisfying the statutory threshold.
• The unprecedented rainfall, not any fault of the Respondent, caused the flood; the case is one of damnum fatale.
• The Appellant’s factual averments were not proved.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Jurisdiction. The House accepted the settled Scottish practice that the “value of the cause” is calculated as at the date of the Sheriff Court interlocutor under challenge, including lawful interest but excluding expenses. Had the Sheriff’s decision stood, the award plus interest would have exceeded £25; therefore advocation was competent.

Liability. The Lords considered only the affirmative findings of the Court of Session. Those findings established that:

• The burn burst its banks at a bend located roughly one-third of a mile from the contested wall.
• An unprecedented volume of water then flowed straight downhill, accumulated behind the wall, and eventually broke through it.
• The accumulation was not caused or aggravated by the wall along the parish road, nor was there evidence the water had ever previously escaped in that direction.

Because the events were triggered solely by an “unprecedented fall of rain,” the situation was categorised as damnum fatale—a calamity no reasonable foresight could anticipate and against which no landowner is obliged to guard. As neither act nor omission of the Respondent caused the damage, negligence could not be established.

Form of the Interlocutor. While the Appellant criticised the Court of Session for insufficiently separating fact from law, the Lords held that any legal question arising on the stated facts must be resolved in the Respondent’s favour. No further defect warranted intervention.

Holding and Implications

HOLDING: The appeal was DISMISSED; the interlocutors of the Court of Session were affirmed with costs.

Implications: The decision confirms that (1) for jurisdictional purposes the £25 threshold in 16 & 17 Vict. c. 80 is assessed by reference to the amount that would be recovered under the Sheriff’s interlocutor at the time of advocation, including interest; and (2) landowners are not liable for damage resulting solely from extraordinary natural events (damnum fatale) unconnected to any negligent act or omission. No new precedent was set beyond clarification of these established principles.