District Committee of the Middle Ward of Lanark v Marshall
| Jurisdiction | Scotland |
| Judgment Date | 10 November 1896 |
| Date | 10 November 1896 |
| Docket Number | No. 25. |
| Court | Court of Session |
Lord Pearson, Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
Lease—Power to resume lands—Feu of lands resumed—Liability of feuar to compensate tenant—County Council—District Committee—Hospital—Public Health (Scotland) Act, 1867 (30 and 31 Vict. cap. 101), secs. 39 and 116.—
Title to Sue—Joint Right—Lease—Assignation pendente processu.—
By lease of a farm dated in 1886 the landlord, inter alia, reserved power ‘to take off such part of the lands hereby let as may be considered expedient for the purpose of feuing … it being hereby provided that the annual value of any ground thereby taken from the said lands shall be paid to the tenants’ at the rate of £4 an acre.
In 1893 the landlord resumed five acres of the farm, and by private agreement feued the land so resumed to the County Council. Thereafter the District Committee of the County Council erected a hospital on this land under the powers of section 39 of the Public Health Act, 1867.
In 1896 the tenant, who had since the resumption been receiving from the landlord an abatement of rent equal to £4 an acre for the land resumed, served a notice on the District Committee in which he claimed compensation for unexhausted manure, &c, and, founding on section 116 of the Public Health Act, 1867, took proceedings for having the amount of such compensation settled by arbitration.
In a note of suspension and interdict brought by the District Committee, held that the proceedings for arbitration fell to be interdicted in respect that the tenant's only right to compensation, if he had any, was against his landlord.
Question, whether the claim to compensation, assuming it to be otherwise well founded, had properly been made against the District Committee and not against the County Council.
Opinions that section 116 of the Public Health Act, 1867, did not apply.
One of two persons who ex facie of a lease were joint tenants of a farm sent a notice of a claim to compensation to the County Council, which had taken a feu of part of the farm, the landlord having power to resume under the lease. In a suspension of proceedings for having the claim determined by arbitration the County Council pleaded, inter alia, that the claimant being only a joint tenant was not in titulo to insist in the claim. The claimant answered that he had the whole real interest in the farm, and lodged pendente processu an assignation in his favour by the other tenant setting forth that fact.
Opinions (contra the judgment of Lord Pearson) that the claimant had a good title.
By lease, dated 5th July and 26th August 1886 between Lord Hamilton of Dalzell (then Mr Hamilton of Dalzell) on the one part, and James Marshall and David Marshall, farmers at Airbles, on the other part, Lord Hamilton let ‘to the said James Marshall and David Marshall and their heirs, but expressly excluding assignees and subtenants, legal and voluntary, unless specially approved of by the landlord in writing, All and Whole the said farm of Airbles and others as recently tenanted by the heirs of the late John Marshall,’ for the period of nineteen years, from Martinmas 1881 as to the arable land, and from Whitsunday 1882 as to the houses and grain, reserving to the proprietor the mines and minerals, with power to work, win, and carry away the same, and to sink pits, ‘allowance being always given to the said tenants and their foresaids for the ground so to be resumed for the above purposes, or for any surface or other damage which may be done to the said lands by the said operations at the rate of £4 sterling per imperial acre for all ground so to be resumed or damaged to the west of the Muckle Burn, and at the rate of £3 sterling per imperial acre for all ground so to be resumed or damaged to the east thereof, as also reserving to the proprietor and his foresaids full power, liberty, and privilege, at any time during the currency hereof, to take off such part of the lands hereby let as may be considered expedient for the purpose of feuing or letting out on building leases, making excambions, planting, making roads or erecting public works, straightening or making alterations of the marches of the said lands and those adjoining, or for any other purpose that may be thought proper; it being hereby provided that the annual value of any ground thereby taken from the said lands shall be paid to the tenants and their foresaids at the foresaid rates.’ For which causes, and on the other part, ‘the said James Marshall and David Marshall hereby bind and oblige themselves, their heirs, executors, and successors whomsoever, all conjunctly and severally,’ to pay the sum of £246, 10s. as rent.
By minute of agreement dated 9th November 1893 the County Council of Lanark agreed to feu five and a-half acres of the farm of Airbles on, inter alia, the following condition:—‘The feuar on entry to pay to the tenant of the land for the time being such damage (if any) as the latter may sustain in consequence of the feuar taking possession, such as for loss of crop, manure, &c.,’ the County Council being also ‘bound to pay annually during the first nine years of the feu the sum of £20 as compensation to the present tenant of the farm of Airbles for the loss of the land.’
Thereafter Lord Hamilton granted a feu-charter in favour of the County Council, dated 17th November 1893, and recorded in the Register of Sasines 10th July 1894, with entry at Whitsunday 1893. The feu-charter did not contain a clause binding the County Council to pay damages, or to pay £20 as compensation to the tenants of Airbles.
The County Council acquired this land in order that the District Committee of the Middle Ward of Lanarkshire might erect a hospital thereon, and the District Committee proceeded to erect a hospital accordingly.
The Marshalls, as tenants of Airbles, made no objection to their landlord resuming this five and a-half acres, and they annually received from him an abatement from their rent equal to £4 an acre for the land resumed, that being the rate specified in the lease for that part of the farm.
On 24th March 1896 James Marshall, as ‘the lessee and occupier of the farms and lands of Airbles,’ sent to the District Committee a notice setting forth that the District Committee, ‘in pursuance of the provisions of the Public Health (Scotland) Acts, and the Acts incorporated therewith, and the Local Government (Scotland) Act, 1889, erected a hospital on the said farm and lands of Airbles, and entered upon and took part of the same for and in connection with the erection of said hospital at or about the term of Whitsunday 1893,’ and claiming ‘compensation in respect thereof, videlicet:—For unexhausted manure and improvements on the portions of the said farm taken as aforesaid; for ploughing and labour which had been incurred in connection therewith; for severance damages and inconvenience; for loss of crops and pasture; reforming headriggs and loss of ground and crops,—both on the portion of ground taken from said farm and on the ground adjoining the same, the sum of £180,’ with interest at the rate of five per centum per annum from the term of Whitsunday 1893. The notice further bore, that in the event of the District Committee not being willing to pay the compensation claimed, the claimant desired to have the same settled by arbitration, in terms of the Lands Clauses Consolidation (Scotland) Act, 1845.*
Marshall followed up this notice by serving upon the District Committee a nomination and appointment of an arbiter, and the District Committee, under protest, made a similar nomination and appointment.
The District Committee then, with consent and concurrence of the County Council, presented a note of suspension and interdict to have Marshall and the arbiters interdicted from...
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