Mackenzie v Macgillivray
| Jurisdiction | Scotland |
| Judgment Date | 15 June 1921 |
| Date | 15 June 1921 |
| Docket Number | No. 77. |
| Court | Court of Session |
Lord President (Clyde), Lord Skerrington, Lord Cullen.
ArbitrationLandlord and TenantStatutory arbitrationCase stated by arbiter on question of lawCase based on proposed findings of factAgricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), sec. 11 (3).
Held that the arbiter in an arbitration under the Agricultural Holdings Act was entitled to state a case for the opinion of the Sheriff upon a question of law based upon proposed findings of fact, and that it was not necessary for him to issue final findings before stating the case.
Landlord and TenantOutgoingCompensation for improvementsTemporary pasture laid down more than two years prior to determination of tenancyDetermination of tenancyTenancy for term of years and thereafter till terminated by noticeAgricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), sec. 1 and First Schedule, Part III. (26).
The tenant of a farm, let to him for a period of years down to Whitsunday 1905 with continuation thereafter from year to year until terminated by a year's notice on either side, occupied the farm till 1920 when the tenancy was terminated.
Held that there had not been a series of separate yearly tenancies after 1905, but that the original tenancy had continued until 1920, and, accordingly, that temporary pasture laid down prior to 1918 was laid down more than two years prior to the determination of the tenancy within the meaning of the Agricultural Holdings Act, 1908, First Schedule, Part III. (26), and so fell within the category of improvements for which a tenant was entitled to compensation.
Opinion reserved as to a claim by a tenant who had possessed by tacit relocation after the termination of a lease at its contractual ish.
Landlord and TenantOutgoingCompensation for improvementsImprovementsImprovement consistent with, but not obligatory by, the rules of good husbandryLaying down temporary pastureAgricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), sec. 1 and First Schedule, Part III. (26).
The tenant of a farm, consisting of about 700 acres of permanent pasture and 100 acres of arable land, voluntarily and not in fulfilment of any contractual obligation laid down 961/2 acres of the arable land into temporary pasture more than two years before the determination of the tenancy, and claimed compensation as for an improvement.
Held that the fact that the arbiter found that in laying down the temporary pasture the tenant was complying with the rules of good husbandry, which he was bound to observe, did not preclude the arbiter from also finding that the temporary pasture was an improvement for which the tenant was entitled to compensation, in view of the fact that the laying down of the pasture was not the only method by which the rules of good husbandry could be observed.
Landlord and TenantOutgoingCompensation for improvementsBenefit given by landlord in consideration of tenant executing improvementAbstention from terminating tenancyAgricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), sec. 1 (2) (a).
A tenant, who had possessed a farm on a lease which provided that, at the expiry of a fixed term of years, the tenancy should continue from year to year until terminated by either party after notice, executed an improvement by laying down temporary pasture, after the expiry of the fixed term, but more than two years before the determination of the tenancy. The landlord's consent was not required; but, when informed by the tenant that three-fifths of the improvement had been executed and that the remainder was about to be executed, he made no objection and attached no condition to allowing the tenancy to continue.
In an arbitration upon the tenant's claim for compensation for the improvement under the Agricultural Holdings (Scotland) Act, 1908, held that the arbiter was entitled to find that the landlord, in abstaining from terminating the tenancy, had given no benefit to the tenant in the sense of sec. 1 (2) (a) of the Act, in respect that it was not proved that the tenancy was continued in consideration of the tenant executing the improvement.
William Macgillivray, who had been tenant of the farm of Garbole, Inverness-shire, of which William Dalziel Mackenzie was the proprietor, on quitting the holding at Whitsunday 1920 claimed compensation in terms of the Agricultural Holdings (Scotland) Act, 1908,* for temporary pasture laid down more than two years
prior to the determination of the tenancy. The proprietor resisted the claim.
George Alexander Ferguson, Surradale, Elgin, was appointed arbiter by the Board of Agriculture, and issued proposed findings in which he proposed to find the claimant entitled to the sum of 348. The landlord requested the arbiter to state a case for the opinion of the Sheriff.
The case set forth:
The claimant, the said William Macgillivray, claimed from the respondent, the said William Dalziel Mackenzie, the sum of 348 for the laying down of temporary pasture on 961/2 acres or thereby of the said farm of Garbole more than two years prior to the determination of the tenancy at Whitsunday 1920.
The claimant entered the farm of Garbole at Whitsunday 1886, and vacated the farm at Whitsunday 1920, with the exception of the arable land under crop which he vacated at the separation of crop 1920 from the ground.
Under the general articles, conditions, and regulations of the respondent's estate, by which the claimant was bound for the period from 1886 to 1900, it was, inter alia, provided that tenants shall not be restricted to any system or particular course of cropping Tenants may, if they choose, lay the whole of their farms under grass provided the land be first properly cleaned and liberally manured and sown down with a sufficient quantity of good seeds.
By lease entered into between the parties, dated 29th February and 5th March 1904 (in which said general articles, conditions, and regulations were not incorporated or referred to), the respondent let to the claimant the said farm of Garbole for the space of five years and crops from and after the following terms and periods:as regards the fallow land the first day of April 1900; as regards the houses, second year's grass, and pasture land at the term of Whitsunday 1900, and as regards the arable land under crop, including hay crop, at the separation of the crop of the year 1900 from the ground, it being provided and agreed that after the term of Whitsunday 1905 the tenancy should be continued from year to year, so long as the same was not terminated by either party at any term of Whitsunday on giving at least one year's written notice to the other party of his intention to terminate the same. With regard to the cultivation and management of the said farm, the lease does not prescribe any course of cropping, but provided and conditioned that the cultivation and management should be according to the most approved rules of good husbandry, and it was further thereby specially conditioned and agreed that the tenant should not break up or bring under cultivation any land on the said farm which at his entry was not cultivated as arable land, without the express consent of the proprietor. At the claimant's outgo the proprietor or incoming tenant was bound to take over the whole corn crop, dung, and fallow land, and the first and second year's grass, and also the third year's grass in the event of the arable land being then worked under the six-course rotation.
When the claimant entered in 1886, the arable land on the farm extended to 111376 acres (exclusive of permanent pasture), which were in first and second year's grass, corn crop, and fallow. At his entry the claimant took over from his predecessor all the first and second year's grass, corn crop, and fallow, and paid therefor. Prior to the year 1900 a field extending to about six acres was resumed by the respondent. Thus the above 111376 acres was reduced to 105 acres or thereby. Up to the year 1900 the said arable land was cultivated on a five-shift course.
In 1900, when a new lease was entered into, the claimant received no payment and no other consideration from the respondent in respect of grass or pasture on the farm, nor for corn crop and fallow land. He constructively entered...
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