No. 8. July 2, 1891. to give him information. But that is an inference which it would be very unsafe to derive from the mere fact of the occasional user of an isolated deer tract, in a region remote from public observation, which is only visited at rare intervals M'Inroy v. by a few sportsmen, foresters, or shepherds. With three exceptions, upon which great stress was laid in the argument addressed to us by the junior counsel for the appellants, not one of the numerous witnesses examined for them was able to say that a Lude sportsman or a Lude keeper was ever in the course of these forty-six years seen upon the track either by the respondent's servants, by the shepherds on the adjoining lands, or by any other person. The exceptions were these:-Angus Cameron, who has been head keeper at Lude since 1871, says that in 1872 or 1873, when he was going through the pass with Mr James M'Inroy, a son of the late proprietor, they met one of the Duke's foresters, who did not find fault with them. He does not say at what season, or that they were either grouse-shooting or deerstalking, so that taken by itself the incident is immaterial. The witness Gordon, who was examined on interrogatories in Canada, says that he never met the Duke's foresters in the pass itself, but that they were in the neighbourhood when he went through it with his father, then head keeper at Lude. But it is obvious that his statement refers to the period antecedent to 1841, because he states his understanding to have been "that the property on both sides of it (that is, the pass) belonged to Mr M'Inroy." The third exception is the witness William Carrick, who was an under keeper at Lude for three years between 1868 and 1871. He certainly does state in his examination-in-chief that when going through the pass he met the respondent's foresters on several occasions. But on cross-examination he explains that "the only time that I met any of the keepers right in the pass was when I was with them shooting foxes." The appellants' own evidence points strongly to the inference that their use of the track was made in such circumstances that it was not likely to come, and in point of fact never came, to the knowledge of the respondent or his predecessors. But the matter does not rest there. A large and concurrent amount of testimony has been adduced by the respondent which shews that the appellants' user was unseen by and unknown to the proprietors of the Athole forest and their shepherds and foresters, and that testimony is not confined to servants upon the Athole estate. Amongst others, David Guild, who was the appellants' tenant in Monzie from 1867—that is, for twenty years before this dispute arose -never heard of his landlord or anybody else using the Cromalton Pass in order to get from his farm to the east side of Carnlia. There are two incidents established by the proof which appear to me to have a significant bearing upon this part of the case. The first of these occurred between 1852 and 1857, and is spoken of by John Stewart, at that time a forester in the employment of the late Duke of Athole. The Duke was in the pass with his retainers when he saw the late Mr M'Inroy of Lude and his keeper, who were also going through the pass westwards, having entered it from the east. The Duke, in the hearing of the witness, who was close beside him, gave orders to his head keeper to go and turn back the intruders. The order was obeyed, and the witness said Mr M'Inroy and his keeper returned in the direction from which they came. I see no reason to question the accuracy of this statement. The Lord Ordinary, before whom the witness was examined, suggests no doubt as to his credibility, although he makes light of the circumstance, mainly because Mr M'Inroy continued notwith d Duke of Athole... No. 8. July 2, 1891. standing to assert and use his right. I should agree with the Lord Ordinary's estimate if I were, as he appears to have been, satisfied that the previous and subsequent user were open to observation and known to the person who challenged it on that occasion. Persistent use in the face of challenge is a clear assertion of right; but I can find no grounds for supposing that Mr M'Inroy, either previously or subsequently, used the track or the pass in such a way as to indicate that he was asserting a right. If that be so--and in my opinion it was so the conduct of Mr M'Inroy was well calculated to assure his Grace of Athole that he was making no pretension to a right of way through the Cromalton Pass. The next occasion was in September 1882, at a time when the mansion and shootings of Lude were let to Sir A. B. Walker. The present respondent was shooting in the pass when he observed traces of a party having passed along the track with a horse. He immediately wrote to Cameron, the appellants' head keeper, stating his belief that the party must have come from Lude, and intimating that the keepers and others from Lude must understand that they were trespassing when they went up the Cromalton. His Grace treated the trespass as one arising from the inadvertence of the keepers, and informed Cameron that if it were repeated he would be obliged to complain to Mr M'Inroy, who is the leading appellant. Cameron forwarded the respondent's communication to the appellant under cover of a letter, asking for directions, in which he says with respect to the track,-"I was told some time ago that it was an old drove road; if such is the case, the Duke cannot prevent us taking it." Mr M'Inroy's reply has not been preserved, but the tenour of it may be implied from Cameron's answer, which is in these terms,-"I am glad we have done nothing wrong. I am perfectly sure the late Mr M'Inroy would never have allowed me to cross the Cromalton unless he had right to do it. We have not crossed it since, but will do so some day this week." Whatever may have been the instructions given by Mr M'Inroy to his keeper, it is certain that he neither answered the respondent's letter himself nor directed his keeper to do so, and that no answer was sent. I cannot understand why no answer was sent to the respondent's communication, and the appellants' counsel made no attempt to explain it. Going through the pass next week was no answer, unless there was someone there to see on the respondent's behalf. The terms of the communication implied that the writer was unaware of there having been any previous use of the pass, and unless he came to know of its being used subsequently by the Lude people, the silence of Cameron and his master would naturally be construed as an admission of trespass. I entertain no doubt that it was so construed, and that the respondent was unaware of the continuance of the use for five years afterwards. In these circumstances I have no difficulty in coming to the conclusion that there has not been an open and unequivocal assertion of the rights which the appellants claim, such as the law requires in order to the constitution of a servitude of way; and I therefore move that the interlocutor of the Inner-House be affirmed and the appeal dismissed with costs. LORD BRAMWELL.-I agree entirely with the opinion of my noble and learned friend Lord Watson. But as I believe this to be an honest case, I wish to shew the appellants that I have not come to a conclusion they probably will think wrong without forming an opinion of my own on it. No. 8. That there would be a path or track in the pass or depression between the two mountains called Cromalton Pass is certain. Whoever and whatever had July 2, 1891. to go from the east of those mountains to the west, or the west to the east-M'Inroy v. man, deer, or sheep-would naturally take that route which would be the Duke of easiest. Accordingly, we find the marked track, the use of which has been discussed, and we find it has been used in a variety of ways. But the Athole. The appellants have claimed a right of public way, a right for sheep from the part of Lude on one side of the pass to the other, and a right to pass to and fro for sporting purposes. All these claims are given up except the claim of a right for sporting purposes. Of course there having been claims that could not be maintained would not preclude the appellants from the right to one which they could maintain. But I cannot help thinking that it furnishes an argument against them that there should have been uses of the way which were trespasses or permissive. According to English law, the owner of strayed sheep though liable for their trespass would have a right to get them back, at all events after request to the owner of the land where they were to restore them. user in support of the right now alone claimed must be examined. Now, there is, no doubt, evidence of a user of this path by the occupiers of Lude for the purpose of getting from one side of the pass to the other for sporting purposes on the Lude property; and if that user had been frequent enough to the knowledge of the respondent and the predecessors, and had been persisted in after objection by them, the right might have been established. But in my opinion the user proved is insufficient. In the first place, up to 1841 the Lude proprietors claimed a right to the property in Carnlia, and could go over it, or the lower part of it, from one side to the other without using the path. It is true they did not claim the soil of the path or track, and it may have been easier to go along it than over a place where there was no track. But it certainly is unlikely that they had a right of way over the Duke's ground close alongside what they thought their own property. Admiral M'Inroy speaks doubtfully as to what route he took. There is then the user since 1841, which, I repeat, if sufficient and shewn to be known to the respondent and his predecessors, might establish the right. But there are only two cases where that knowledge is shewn. That in 1857, when the then Duke turned back the then Mr M'Inroy, who submitted, and thereby recognised that he had no right to be on the track. The other is the Duke's letter to the keeper in 1882, communicated to the appellants, and the statements in it not contested. decisive. As to the Athole foresters not informing the Duke, and not objecting to the use of the path, there are not many occasions on which they are shewn to have been aware of its use. I think it quite possible that they may not have known the rights of the case, and if they did, may not have wished to be tale-bearers against persons with whom they had probably some friendship or acquaintanceship, and who perhaps were trespassing when it was not an objectionable time of year. Lastly, there is this, that the place in question was remote, little used, and difficult to protect. Believing though I do in the good faith of the appellant and his witnesses, I am satisfied he has not made out his case. I think these two matters EARL OF SELBORNE.—I had partly prepared my opinion in this case when I saw in print that which has just been delivered by my noble and learned friend Lord Watson. I found the view which he had taken to agree so entirely with No. 8. July 2, 1891. that which I had myself formed, and the manner in which the reasons for that view were stated so satisfactory to my mind, that I thought I should be unnecessarily occupying the time of your Lordships if I did more than express my entire agreement. THEIR Lordships affirmed the interlocutors appealed from and dis- FAITHFUL & OWEN-DAVIDSON & SYME, W.S.-GRAHAMES, CURREY, & SPENS— No. 9. July 17, 1891. Holmes Oil Co., Limited, v. Pumpherston Oil Co., Limited. HOLMES OIL COMPANY, LIMITED, Appellants (Pursuers).— Finlay, Q.C.— PUMPHERSTON OIL COMPANY, LIMITED, Respondents (Defenders).- Arbiter-Corruption-Act of Regulations, 1695.-The A company, who were engaged in shale mining and distilling oil from the shale, but had no works for refining the oil after distillation, entered into an agreement with the B company to sell to them the crude oil they distilled. The A company were to be paid a certain price per gallon on the refined products, which were estimated at 72 per cent of the crude oil. The price was to be taken at one-half of the average price obtained by the B company for the refined products sold by them, as ascertained from their books by an accountant named in the contract. "In the event of any questions, disputes, or differences arising as to the true intent and meaning" of the agreement "or the due implement thereof," the same were referred to an arbiter therein named. After the agreement had been acted upon for two years, and a decree-arbitral had been pronounced by the arbiter relative to certain disputes arising as to the sum payable to the A company by the B company, the A company raised an action of reduction of the accountant's reports fixing the price for these two years and of the decree-arbitral, and for an accounting for the products obtained from the crude oil delivered to the defenders. The action was based on the following averments, viz., the pursuers averred that one of the products obtained from the crude oil was paraffin scale, which was of two kinds-"hard" scale and "soft" scale, the former being worth 1s. 8d. per gallon, and the latter ls. per gallon only; that it had been understood that the whole of the crude paraffin scale would be sold by the defenders, and that the price was to be fixed on the basis of the average price, but that the defenders had retained the "hard" scale for their own purposes, and had sold the "soft" scale only; that the price brought out in the accountant's reports was only that of the soft scale; that the arbiter had pronounced the award brought under reduction, finding that it was not admissible to take into consideration the different qualities of scale, but only the amount actually received from the various products during the year for which the estimate was made, notwithstanding that the pursuers had maintained that hard scale ought to be taken into account in fixing the price, and had offered proof that the scale sold consisted only of soft scale, and did not therefore represent the total scale produced. They averred that the defenders, the B company, had fraudulently concealed from the accountant that they were only selling soft scale, and had represented to him that the scale they sold consisted in fair proportions of both soft and hard scale, and that the arbiter had refused to go behind the figures brought out by the accountant, and had thus acted illegally and corruptly, in the sense of the Act of Regulations, 1695. The Second Division, with three consulted Judges, by a majority held that the action was not relevant. In an appeal the pursuers contended that the decree-arbitral should be reduced on the ground that the arbiter had misconducted the case by refusing to allow evidence tendered by the pursuers. Held that as the arbiter had construed the contract in a way which made the evidence tendered irrelevant, there was no ground for reduction, and appeal dismissed. No. 9. (IN the Court of Session, March 13, 1890, 17 R. 624.) The pursuers appealed. July 17, 1891. The pursuers contended, inter alia, that the arbiter had misconducted Holmes Oil the case in refusing to allow evidence tendered by them to shew that the Co., Limited, defenders had not sold the whole scale, but had retained the hard scale, v. Pumpherwhich was more valuable than the soft scale which they had sold, and had thereby brought out a low average price for the scale sold. ston Oil Co., Limited. Ld. Chancellor (Halsbury). Lord Watson. LORD CHANCELLOR.-I agree with a remark which was made by the learned counsel as to doing justice in this case, and I have approached the case with Ld. Herschell. the strongest possible desire, if I could, to do justice between the parties, which Lord Morris. I think ought to be done, assuming that the facts suggested are true. But the matter is not here for review; apart from the particular form in which the question arises, this is in substance an attempt to set aside an award. Now, one of the advantages which people are supposed to get by a reference to arbitration is the finality of the proceeding when the arbitrator has once stated his determination. They sacrifice something for that advantage-they sacrifice the power to appeal. If, in their judgment, the particular judge whom they have selected has gone wrong in point of law or in point of fact, they have no longer the same wide power to appeal which an ordinary citizen prosecuting his remedy in the Courts of law possesses, but they sacrifice that advantage in order to obtain a final decision between the parties. It is well-settled law, therefore, that when they have agreed to refer their differences to arbitration, as they have here, you cannot set aside the award simply because you think it wrong. The parties have agreed that it shall not be subject to the ordinary modes of appeal, and that it shall be final; and that is, in nine cases out of ten, the very object which they mean to attain by submitting their differences to arbitration. In this case the arbiter has, to my mind, clearly decided the question in dispute between the parties; and in truth what he has decided-at all events the substance of his decision-is, that there being a dispute as to how much one of the parties shall pay to the other party, he has given the amount in terms and in figures which the one party shall pay to the other. Thereupon one of the parties, the party against whom he has decided, says "Oh! but you have proceeded upon a wrong principle; you have not allowed the price of the article to be ascertained in the way contemplated by the contract." The arbiter to whom that matter is remitted says-"I have looked at the contract, and I find that the only mode in which the price is to be ascertained is by taking the average during the year of the price received for all these articles. Well, I look at the average of the price received for all these articles, and I arrive at such and such a conclusion upon the figures stated, and for the amount so arrived at I give my award." Upon which the other party says-" But the average was to be an average ascertained by considering all the things which were not only in fact sold, but which ought to have been sold, or considered as sold, or treated as sold, and taking the price of them as received during the period of the year." To that it is replied-" Well, but that is not the contract between the parties; the parties have selected a particular mode of ascertaining the amount, and the arbiter finds that that is the mode." For myself, as I have said during the argument, I am unable to concur with the learned arbiter in the view which he has taken of this matter, but still that is a matter which he has decided, and that is the view which he has taken. He has, as I think, left us in no doubt whatever of the ground on |