Grahame v Secretary of State for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 09 March 1951 |
| Docket Number | No. 37. |
| Date | 09 March 1951 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Administration of JusticeCompulsory PowersRes JudicataIdentity of questionMedia concludendiRequisition of agricultural landClaim by owner for cost of making good damageClaim by requisitioning authority in respect of bettermentCompensation (Defence) Act, 1939 (2 and 3 Geo. VI, cap. 75), sec. 2 (1) (b)Agriculture (Miscellaneous War Provisions) Act, 1940 (3 and 4 Geo. VI, cap. 14), sec. 23 (5).
Under sec. 2 (1) of the Compensation (Defence) Act, 1939, the compensation payable in respect of the taking possession of any land includes "(b) a sum equal to the cost of making good any damage which may have occurred during the period for which possession thereof is so retained."
Under sec. 23 of the Agriculture (Miscellaneous War Provisions) Act, 1940, where the possession has been taken for agricultural purposes and a specified certificate has been granted to the effect that possession was taken because the land was not being cultivated in accordance with the rules of good husbandry, then, "(5) when possession of the land is given up, the owner thereof shall be liable to pay to the [requisitioning authority] a sum equal to so much of the value of the land as is attributable to anything done on the land for the purpose of enabling the land to be properly farmed or of securing increased efficiency in the farming of the land."
A pastoral farm, which had been requisitioned by the Secretary of State for cropping purposes and in respect of which the specified certificate had been granted, was returned to the owner after about six years. The owner claimed compensation under sec. 2 (1) (b) of the 1939 Act and was awarded compensation by the General Claims Tribunal (a tribunal set up under that Act and from whose decision there is no appeal) in respect that many of his fields had become infested with rushes. The Secretary of State then applied to the Land Court, as the appropriate tribunal under the 1940 Act, for a payment under sec. 23 (5) of that Act, anda plea of res judicata stated for the owner having been repelledwas awarded a sum in respect of drainage, unexhausted manures and lime, and new grass. The decision of the Land Court being open to review on questions of law, the owner appealed, contending (1) that his plea of res judicata should have been sustained, (2) that the Land Court were, in any event, not entitled to find him liable under sec. 23 (5)the only section under which the claim was madeseeing more especially that under that section they should have made their assessment, if any, either on the amount by which the post-requisition value of the land exceeded its pre-requisition value or on the amount of its post-requisition value attributable to the operations of the Secretary of State, and not, as they had done, by considering separate items of expenditure, as if the claim they were considering was a waygoing claim presented under Reg. 62 (4) of the Defence (General) Regulations, 1939, or under sec. 9 of the Agriculture (Miscellaneous Provisions) Act, 1949.
Held (1) that the Land Court were entitled to repel the plea ofres judicata, as the media concludendi in the two processes were not necessarily the same; (2) that the Land Court had material before them on which they were entitled to make an award in favour of the Secretary of State; and (3) that the methods adopted by the Land Court in making their assessment gave rise to no question of law which could be entertained in an appeal; and the appealdismissed.
Per the Lord President:"Had a situation such as this even been threatened as between two ordinary Courts, it could easily enough have been dealt with. But we are not masters of the present situation."
The Secretary of State for Scotland applied to the Scottish Land Court to fix the sum payable to him in terms of section 23 (5) of the Agriculture (Miscellaneous War Provisions) Act, 1940,1"in respect of so much of the value of 551 acres of land and others, being part of the estate of Lingo in the parish of Carnbee and county of Fife, as is attributable to anything done on the lands by the Secretary of State or the Agricultural Executive Committee for East Fife for the purpose of enabling the land to be properly farmed or of securing increased efficiency in the farming of the land."
Lieutenant-Colonel John Crum Grahame, owner of the estate of Lingo, had recently been awarded compensation by the General Claims Tribunal under section 2 (1) (b) of the Compensation (Defence) Act, 1939,2 in respect of the taking possession of that part of his estate by the Secretary of State, the amount of compensation awarded being 1500 in respect of damage to the lands and 46, 3s. 10d. in respect of damage to fences, dykes, gates, &c. He therefore lodged answers in which he pleaded. inter alia, that the matter was res judicata and that the Secretary of State's averments were irrelevant.
On 5th November 1949, after hearing parties on these preliminary pleas, the Land Court repelled the plea of res judicata and quoad ultra allowed a proof before answer.
On 5th June 1950, after hearing the evidence and inspecting
the subjects, the Land Court fixed the amount payable by the owner to the Secretary of State at 2150. The amount was made up as follows:Buildings 175, fences 650, drainage, unexhausted manures and lime, new grasses 1325. At the request of the owner the Court stated a special case for the opinion of the Court of Session.
The special case gave the following narrative of the circumstances:"(1) The Secretary of State for Scotland (hereinafter referred to as the respondent) by notice dated 25th November 1940 intimated that by virtue of Regulation 51 of the Defence (General) Regulations, 1939, he was to take possession, as at 28th November 1940, of land extending to 551 acres or thereby being part of the estate of Lingo in the parish of Carnbee and county of Fife owned and occupied by Lieutenant-Colonel John Crum Grahame (hereinafter referred to as the appellant), the said lands, together with buildings and other hereditaments thereon, being hereinafter referred to as the subjects. The subjects of which possession was taken consisted of various grass parks and a cottage and steading known as West Lingo or Quinloch. The compensation rent was adjusted at 250 per annum. (2) On 4th December 1940 the respondent granted a certificate under and for the purpose of section 23 of the Agriculture (Miscellaneous War Provisions) Act, 1940, to the effect that possession was taken because the land was not being cultivated in accordance with the rules of good husbandry as defined in section 49 (1) of the Agricultural Holdings (Scotland) Act, 1923. The said subjects were at the date of requisition, and had for many years been, used for purely pastoral purposes, being let as grass parks annually for seasonal grazings. Certain reseeding operations were in course of being carried out, but, after two fields had been so reseeded, these operations were interrupted by the outbreak of war in September 1939 and by the said requisition. No evidence was tendered by the respondent as to the money value of the subjects as at the date of requisition. (3) The Agricultural Executive Committee for East Fife farmed the subjects on behalf of the respondent, and carried out, during the period of possession, work on the subjects. Certain defence pits had been dug on the land by the War Department before requisition by the respondent. The subjects were broken up, ploughed and subjected to intensive arable farming while in the hands of the Agricultural Executive Committee during the period of requisition. Certain reseeding operations were carried out by the said Agricultural Executive Committee prior to their giving up the subjects on release from requisition. The subjects were released from requisition with effect from Martinmas 1946, when the subjects were returned to the appellant in the form of grass parks. (4) On 8th September 1947 the appellant intimated a claim against the respondent under section 2 (1) (b) of the Compensation (Defence) Act, 1939, for damage to the subjects, which claim was resisted by the respondent. The said claim, as amended by leave of the Tribunal on 24th February 1949, specified twenty fields, or parts of fields, out of thirty fields (comprising 206 acres out of 551 acres) in respect of which compensation was claimed for damage to land amounting to 1508, 8s., and also claimed compensation for damage to other specified items under the head of fences, dykes, gates, &c., amounting to 3055, 6s. 6d. No claim was made for the remaining fields, on the contention that their condition was neither better nor worse. On 17th March 1949 the General Claims Tribunal, after hearing evidence for the parties, awarded to the appellant the sum of 1500 in respect of damage to the lands and 46, 3s. 10d. in respect of damage to fences, dykes, gates, &c. Liability to make compensation in respect of specific damage to fences, dykes, gates, &c., amounting to the latter sum was all along admitted by the respondent. In making said award the Tribunal was dealing with a claim which specifically covered damage to the subjects caused by damage to the drainage system, fences, dykes, gates, &c., as well as damage to pasture caused by wide infestation of the subjects by rushes. A copy of the said amended claim and of the award by the General Claims Tribunal is printed in the appendix and is part of this case. No explanatory note was appended to the said award. (5) On 11th November 1947 the respondent submitted to the appellant a claim under section 23 (5) of the Agriculture (Miscellaneous War Provisions) Act, 1940, for 3430, being the amount at which the respondent assessed the sum equal to so much of the value of the land as was attributable to anything done on the requisitioned land by the East of Fife Agricultural Executive Committee for the purpose of enabling the said land to be properly...
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