"A tenant, in taking a farm, must be considered as taking it under the burden of supporting the game, and may be presumed to have satisfied himself of the extent of that burden, as he is understood to do of any other unfavourable circumstance impairing the productiveness of the farm. But, on the other hand, it would seem contrary to principle that the landlord, who is bound to warrant the beneficial possession to the tenant, should be allowed, by his own act, to aggravate the burden in any great degree. A tenant, in order to support such a claim, must prove not only a certain visible damage arising from game, but a certain visible increase of the game, and _a consequent alteration of the circumstances contemplated in the contract, imputable to the landlord_. The true ground of damage seems to be, not that the game is abundant, but that its abundance has been materially increased since the date of the lease."[13]
Surely so clear an opinion, coming from such a quarter, was a pretty plain indication of the protection which the law would extend to a tenant in these circumstances; and, accordingly, it has been completely confirmed on every point by the more recent and comprehensive decision on Captain Wemyss' case. Any new steps on the part of a landlord for stimulating the natural supply of game, whether by feeding them, breeding them artificially, or by a systematic destruction of the vermin which naturally prey on them, will be held as indicating an intention on his part to depart from the terms of the contract, and as therefore opening a valid claim for any damage the tenant may experience in consequence of the change. And it is not only such direct and active measures for augmenting the stipulated burden that will be thus interpreted against the landlord; but even his doing so negatively--that is, his failing to exercise the power he retains in his own hands, and to keep down the burden to the same amount at which the tenant found it on his entry, will be held as equivalent to his positive act.
If, then, there ever was any ground for alleging that the state of the law was indefinite, the objection is now removed. No one can pretend to doubt that a tenant of land in Scotland has as ample a protection against injury from game as the law can give him. To prevent the injury beforehand is beyond the power of any law. All that it can do is to afford him as prompt and effectual means of redress as it furnishes against any other species of injury. In short, when its principle is weighed fairly, and when we take into consideration the relief from the fiscal qualification which Mr Mackenzie's act of last session conferred on the farmers, we shall be able to estimate how far it is true that, "both in parliament and out of parliament, the interests and industry of tenants are systematically sacrificed to the maintenance of the odious privileges of more favoured classes."