A B and Others v. C D and The Lord Advocate

The Defence of the Realm Regulations Consolidated, dated 28th July 1910, enact—“ General Regulations —1. The ordinary avocations of life and the enjoyment of property will be interfered with as little as may be permitted by the exigencies of the measures required to be taken for securing Page: 115 ↓

They pleaded —“(1) The actings and operations complained of being illegal, interdict should be granted as craved. (2) The said actings and operations being unnecessary and being needlessly injurious to the complainers, interdict should be granted as craved. (3) The proposed works being of a permanent character, the respondent was not entitled brevi manu to enter the lands of the complainer and act in the way complained of. …”

The pleas-in-law for C D included, inter alia —“(1) The note of suspension and interdict is incompetent. (2) The complainers' averments being irrelevant, the note should be refused.”

The Lord Advocate lodged answers and pleaded, inter alia —“(1) In respect that the lands in question have been taken possession of by His Majesty's Principal Secretary of State for the War Department in the exercise of the rights and duties of the Crown in the defence of the realm, the present proceedings are incompetent and the note should be refused. (2) The complainers' statements are irrelevant and insufficient to support the prayer of the note.”

The facts are given in the opinion ( infra ) of the Lord Ordinary ( Anderson ), who 011 17th October 1916 pronounced an interlocutor recalling interim interdict and passing the note.