Duke of Bedford v Earl of Galloway's Trustee
| Jurisdiction | Scotland |
| Judgment Date | 08 July 1904 |
| Date | 08 July 1904 |
| Docket Number | No. 162.,No. 158. |
| Court | Court of Session |
Ld. Kyllachy, Lord President, Lord Kinnear, Lord Adam, Lord M'Laren.
EntailPowers of heir in possessionLeaseFishingsTrout-fishingReal BurdenSingular SuccessorRosebery Act (6 and 7 Will. IV. cap. 42), sec. 1.
A right of trout-fishing, apart from possession of land, is not a feudal estate, and a grant of such right creates merely a personal obligation upon the granter, and will not affect singular successors.
An heir of entail in possession in 1900 granted a lease of the salmon and trout fishings on the estate for twenty-one years to an angling association. The lease proceeded on the narrative that it was granted with the view of improving the fishings, and that the granter had succeeded in inducing other riparian proprietors to grant similar leases to the association. The lease included salmon-fishings in X which had been let to a third party whose lease did not end till five years after the commencement of the new lease. It was stipulated that the tenants' right of fishing in certain streams should be restricted to nine months prior to 31st July in each year, the granter being entitled to occupy or to let the fishings during the remainder of the fishing season in each year to the same effect as if the lease had not been granted. It was stipulated that the rent should be 350, subject to deduction of 25 for each of the five years during which the fishings in X were let to a third party. It was further stipulated that the granter at the end of three years should be entitled to obtain from the association one-seventh of its whole fishing rights on paying one-seventh of its expenses.
The granter of the lease died in February 1901, within one year after granting the lease.
In an action of reduction brought by the succeeding heir of entail held that the lease was not binding upon him, in respect (1) that a grant of trout-fishing, apart from possession of land, creates merely a personal obligation upon the granter; (2) that the lease of fishings to be possessed for nine months in each year was to be regarded as a succession of leases, each of which required possession to follow upon it to make it real; (3) that the lease of the fishings of X already under lease to a third party for five years had not been followed by possession.
Opinions that salmon-fishings are a heritage in the sense of sec. 1 of the Rosebery Act.
This was an action at the instance of the Earl of Galloway, heir of entail in possession of the estates of the earldom in the county of Wigtown, to which he succeeded on the death of his brother, the late Earl, on 7th February 1901. The summons called as defenders the Duke of Bedford and others, members of the Cree Salmon Angling Association, who were the lessees of the salmon and trout fishings in the River Cree and other waters belonging to the entailed estate, under a lease for twenty-one years from 1900 to 1920, both inclusive, granted by the late Earl of Galloway. The lease was last dated 12th April 1900.
The action concluded for reduction of the lease, on the ground that it was ultra vires of the late Earl, and not binding on the pursuer.
The lease proceeded on the narrative that its purpose was to improve the fishings on the estate, and in particular, in the River Cree; that the lessor had negotiated leases in the remaining fishings in the River Cree from the other riparian proprietors; that the whole of these fishings were to be held by the lessees for the Cree Salmon Angling Association, and that these presents should accordingly (subject to the special provisions, reservations, declarations, and conditions hereinafter written) be taken and read in conjunction with the said leases granted by the said other proprietors of fishings in the said River Cree, and negotiated by the said first party, the lessor, as aforesaid. The rent stipulated was 350 per annum, and the subjects let were All and Whole the salmon and other fishings (both net and rod fishings) in the River Cree, commencing at the south boundary of Barsalloch Farm, and extending upwards to the source of the river in Loch Moan, in the River Minnick, and in the burns of Trool and Penkiln, so far as contained in the entailed estate, but subject to certain reservations and exceptions, and, inter alia, but excepting and reserving always therefrom (Primo), during the first five years or fishing seasons of this lease, the portion of said river (Cree) which has been let by the said first party to Mrs Elizabeth Ellen Stopford Blair or Heron Maxwell Blair of Penninghame, conform to minute of lease entered into between them, dated the 7th and 11th, both days of May, in the year 1895. It was provided that a deduction of 25 should be made from the rent for these five years.
Among the conditions of the lease were the following:(Third) The rights of fishing hereby granted to the said second parties shall, as regards (1) the portion of the said River Cree lying above Minnigaff Kirkpool, (2) the River Minnick and Penkiln Burn, and (3) the said Burn of Trool and the dam and sluice at the foot of Loch Trool, cease and determine on the 31st day of July in each year or fishing season, and the said first party shall be entitled, either by himself or his foresaids (i.e., his successors in the entail), to enter into possession of, occupy, and use the said fishings in the said portion of the said River Cree, the River Minnick, and Penkiln Burn, and the Burn of Trool above mentioned, or to let the same to one or more tenants for the remainder of each fishing season, and that in the same manner and to the same effect as if this lease had not been granted; but that in each and every case for rod-fishing with artificial fly only, or such other method as may be permitted by the rules of the said association: Declaring that the right of the said first party or his foresaids, or of any tenants to whom any right of rod-fishing may be let as aforesaid as from and after the said 31st day of July in each year, shall cease and determine at the end of the fishing season of each year during this lease; (Fourth) The fishings hereby let, together with the fishings held under the other leases before referred to, shall (unless otherwise arranged between the said first party and the said second parties and their respective foresaids) be divided into not more than seven shares with relative alternative beats, the said beats being apportioned in rotation among the members of the said Cree Salmon Angling Association; Declaring that the said first party and his foresaids shall have right in any year or fishing season after the conclusion of the first three years or fishing seasons under this lease, to claim the uses and privileges attaching to one-seventh share of the whole fishing rights held under this and the said other leases with relative alternate beats, and such right is hereby reserved to him and them accordingly, upon contributing one-seventh share or proportion of the rental of the said fishings, together with a corresponding share or proportion of the cost of management thereof (including therein watching, taxes, and public burdens) for the year or season in which such reserved right or privilege is exercised; Provided always that certain notice is given. (Fifth) The said second parties shall be bound and obliged at all times to maintain, at their own expense, a thorough and complete system of watching the rivers and streams, the fishings in which are hereby let, and that throughout their whole course.
The pursuer averred;(Cond. 6)The granting of the said lease was, in the circumstances above set forth, ultra vires of the granter as heir of entail in possession. It is a long lease within the meaning of the Entail Acts. The late heir had no power in the course of ordinary administration of the entailed estates to let the said fishings for the period and upon the terms above set forth. A lease of this character could not have been validly granted except after notice to the next heir of entail and with the approbation of the Court. No such notice or procedure was resorted to, and the said lease falls therefore to be reduced as craved. Further, the rent stipulated therein is not a fair rent within the meaning of said Acts.
He pleaded;(1) In respect that the heir of entail in possession of the said entailed lands and estates, including, inter alia, entailed fishings, had no power, without the authority of the Court, to bind the succeeding heirs of entail by the lease libelled, the said lease should be reduced as craved. (3) The said lease being a long lease within the meaning of the said Entail Acts, and having been granted without statutory procedure and the approbation of the Court, ought to be reduced as craved. (4) The rent stipulated by the said lease not being a fair rent within the meaning of the Entail Acts, the pursuer is entitled to decree of reduction as craved.
The defenders pleaded;(2) The lease in question having been validly granted by the late Earl of Galloway, in the exercise of his powers as heir of entail, and in particular the powers conferred upon him by the Act 6 and 7 Will. IV. cap. 42, the defenders should be assoilzied.* (3) The said lease having been granted for a full rent, and for the benefit of the entailed estate, the defenders are entitled to absolvitor.
On 3d March 1902 the defenders lodged a minute stating that in the event of the Lord Ordinary holding that the lease falls to be reduced quoad the trout-fishing, they were prepared to pay the full rent for the remainder of the subjects let, reserving always to the defenders their whole rights and claims against the pursuer and others as personal representatives of the late Earl of Galloway, the granter of the lease, in respect of eviction from part of the subjects let.
On 8th March 1902 the Lord Ordinary (Kyllachy) pronounced this interlocutor:The Lord Ordinary having considered the cause, with the minute for the...
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