338 Review of Mr BelPs Treatife on Lcafes, Aug» 



tion and amufement. In ever)'- cafe of the kind, the principle of this 

 deciiion muil prote6l the right of the proprietor, and enable him to ex- 

 clude all others from entering even on his unenclofed ground without his 

 confent, 



* If this be the right inherent in a proprietor, this right muft of 

 coiirfe be communicated to the tenant ; and without it he could not be 

 faid to have the ufe and enjoyment of the fann. In this view, the te- 

 nant, during his temporar)- poffeflion, may, equally with the proprietor 

 himfelf, exclude others from the farm. But here a o^ueftion of fome 

 nicety occurc. ; and it may be alked, whether he is entitled to exclude 

 the landlord ? 



* In certain circumflances, we know he cannot ; for it has been found, 

 in all the cafes we have lately had occafion to confider, that the land- 

 lord has right to enter on the farm in the excrcife of his referved power. 

 He may enter it to fearch for and work mines, and he may do fo of 

 courfe by thofe who are capable of performing that fervice. He may 

 enter the farm to infpe£l his woods, or for the purpofe of cutting thenj 

 down, and difpofmg of them ; or he may enter it to infpedl the ftate 

 of the farm. In all of thefe cafes, the landlord by himfelf, or thofe aft", 

 ing under him, muft have accefs to the farm. But it may be queflion- 

 ed, whether this right can be extended to the caie of hunting or ot re- 

 creation. 



* This is a queftion which cannot be faid to have been hitherto 

 taken up by the Court : it did occur in the form of an advocation from 

 the Sheriff-court of Ayr, where it had beeil found, that the landlord 

 pofTeffed a right of hunting. But the bill was jbaflcd, and the quellion 

 is ftill in dependence before the Lord Ordinary. 



* On this point, I may be forgiven for making a few obfervations, 

 fmce their tendency wnW only be to render a landlord, who is defirous 

 of prcferving a power to hunt over his own grounds, careful to make 

 an exprefs refervation of that power in his leafes. 



< The right of hunting is merely a right of kiUiug, or taking, that 

 defcription of animal f., known under the name of ^air.t ; it id not a right 

 connedted with the property of land, fmce the acls by wliich the qua- 

 lification is conftituted, are intended to rcftricl an exifting right, not 

 to create a new one. The right of hunting was, at one time, not on- 

 ly open to every man in the kingdom, but was enjoined as an exercife 

 neceffary for preferving the militar)' fpirit of the people ; the power 

 thus veiled in every individual was, by the a(^ 1 63 1 , c. 31. rellricled \ 

 and thofe only who were pofTelTed of a ploughgate of land in heritage 

 were declared qualified to hunt. But this privilege does not enable a 

 quahflcd perfon to hunt in the fif-^lds of another ; it gives merely a right 

 of killing game in tliofe places to which he has free accefs. 



* There i', therefore, no magical power in the term, hunting ; and a 

 landlord, when he pretends to have a right to traverfe tlie fields of his 

 tenant, for the purpofe of hunting, is equally entitled to fay, that be 

 pofTefies ill- fame power in purfuit of a butterfly, or in any botanical 

 refearch \vith which he may chooie to amufe himfelf. 



* If a landlord has a power of entering at all times on every part of 

 lus tenant's poffefllon fgr his amufement, he muil be equally entitled to 



do 



