Mackinnon v Duke of Hamilton's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 20 February 1918 |
| Date | 20 February 1918 |
| Docket Number | No. 34. |
| Court | Court of Session |
Lord President, Lord Johnston, Lord Mackenzie, Lord Skerrington.
LeaseSmall holdingsFair rentConsiderations in fixing fair rentImprovements executed by tenant in implement of obligations in leaseCrofters Holdings (Scotland) Act, 1886 (49 and 50 Vict. cap. 29), sec. 6 (1).
Held that, in fixing a fair rent for a small holding under sec. 6 (1) of the Crofters Holdings Act, 1886, the Land Court were not bound to exclude from consideration as tenant's improvements such improvements as were executed by the tenant or his predecessors in the same family in implement of a specific agreement in writing to execute them.
Observed that it will be for the Land Court to consider in every case whether the tenant or his predecessor has received fair value for the improvements.
On 15th August 1912 Peter and Donald Mackinnon, joint tenants of a holding at Corriecravie, Island of Arran, of which the Duke of Hamilton and others, trustees of the late Duke of Hamilton, were proprietors, applied to the Land Court for an order fixing a first fair rent to be paid for their holding. The proprietors being dissatisfied with the order pronounced by the Land Court, the Court at their request stated a case for appeal to the Court of Session.
The case stated, inter alia:
4. The whole buildings on the said holding have been erected and maintained by the tenants and their predecessors in the same family, with the aid of contributions of (1) materials, or money for the purchase of materials, by the estate for the buildings erected in and after 1898, and (2) some wood for the renewal of the older existing offices in 1884 and 1894. The buildings on the holding include two dwelling-houses. One is a small old house which has been and is occupied as his dwelling-house by the joint tenant, Peter Mackinnon. This house was built by the tenants' predecessors in the same family, and has been since maintained without any contribution by the estate. The other house has been and is occupied as his dwelling-house by the other joint tenant, Donald Mackinnon. It was built in 1898 in substitution for a then existing dwelling-house, with the aid of a substantial contribution by the estate in respect of wood, slates, and cement, and has been maintained by the tenants without any contribution from the estate. It is the more commodious house, and is suitable to this holding as the dwelling-house of one of the joint tenants. It would be sufficient as the dwelling-house of the holding if the holding were occupied by a sole tenant. If the existing joint tenancy should come to an end, the small house occupied by the said Peter Mackinnon would be suitable and useful for the accommodation of a hired servant or servants for the working of this holding. While joint tenancy continues, both these dwelling-houses are suitable to, and reasonably required for, this holding as dwelling-houses for the joint tenants. Neither of these dwelling-houses is an extra dwelling-house. In cases of joint tenancies and of tenancies in runrig on the Arran estate, the joint tenants, or tenants in runrig, have usually each a separate dwelling-house on the holding. 5. This holding was possessed for nine years from and after Martinmas 1835 on the lease, dated 22nd and 23rd September 1835, incorporating printed articles and conditions of sett of sundry lands, farms, lots or divisions of farms, and other possessions in the island of Arran, dated 11th September 1835, being the lease referred to in article 2. The said lease was lodged. By the said conditions of sett it was agreed, inter alia, that the tenants, in place of the present irregular mode of having their green and white crops and grass in a multiplicity of detached ridges and patches, should lay off their possessions with regular fields, or subdivisions, of such extent and form as should be pointed out by the factor or overseer, and cultivate the same in rotation therein described. The said conditions also contained provisions as to making stone drains, and further provided that as certain parts of the lands were then waste and uncultivated, the tenants should cultivate and make arable yearly such portions as should be pointed out by the factor or overseer of Arran, not exceeding certain proportions, and should further cultivate and drain all baulks, ridges, and patches of unarable ground betwixt or at the ends of the arable lands in their possession, and remove all loose cairns of stone and brushwood so that the present fields, which are only partly arable, may be completely cultivated, wrought, and managed in a uniform manner. After the said lease expired the tenancy of this holding was held from year to year until the Small Landholders Acts applied to the holding. 6. Improvements were executed on the land of this holding by the tenants and their predecessors in the same family after possession under the said lease began. Among other improvements they made stone drains during the period from 1830 to 1863 inclusive, and made tile drains during the period from 1896 to 1906 inclusive, and brought uncultivated land into cultivation. The estate made an allowance to the tenants in the form of deductions from the rent from time to time for cutting the stone drains, and supplied the tiles used in making the tile drains. No other allowance or contribution or expenditure was made by the estate towards any improvement on the land.
10. At the hearing upon evidence on 3rd and 4th January 1913 in the whole applications before the Court, the proprietors maintained that all improvements performed by tenants in virtue of specific obligations by such tenants to perform them contained in leases, under which the then lands were possessed by them or their predecessors, or other written agreements between landlord and tenants, could not be reckoned as improvements executed by the tenants to be taken into account in fixing a fair rent under the Act.
11. The inspection by the Court of the present holding was made on 15th May 1913, the members of the Court taking part in the inspection being the Chairman, Mr Dewar, and Colonel Dudgeon. The following order was pronounced by the Land Court in this application:Edinburgh, 23rd June 1913.The Land Court having considered this...
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