McQuater v Fergusson
| Jurisdiction | Scotland |
| Judgment Date | 07 March 1911 |
| Date | 07 March 1911 |
| Docket Number | No. 86. |
| Court | Court of Session (Inner House - First Division) |
Lord President, Lord Kinnear, Lord Johnston, Lord Mackenzie.
LeaseOutgoingCompensation for improvementsArtificial manure applied in terms of the leaseBenefit given by landlordImplied benefitLower rentAgricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), sec. 1 (2) (a).
The Agricultural Holdings Act, 1908, which gives a tenant, on quitting his holding, a right to compensation for improvements, and includes among improvements the application to the land of artificial manure, enacts, sec. 1 (2): In the ascertainment of the amount of the compensation payable to a tenant under this section there shall be taken into account(a) any benefit which the landlord has given or allowed to the tenant in consideration of the tenant executing the improvement.
A lease contained a provision by which the tenant was bound to apply to the land a certain amount of farmyard manure per acre, and, so far as he had not sufficient farmyard manure for the purpose, to make up the amount with artificial manure. On quitting his holding the tenant claimed compensation for the unexhausted value of artificial manure applied in terms of that provision. The landlord maintained that the tenant was not entitled to claim compensation for manure applied in terms of the lease, in respect that he had received a benefit in the sense of sec. 1 (2) (a) in consideration for that improvement, viz.:the benefit of having to pay less rent than he would otherwise have had to pay.
Held that such an implied benefit was not a benefit in the sense of that section, and that the tenant was accordingly entitled to claim; the Lord President observingI think any benefit must be a benefit specially mentioned and allowed.
ArbitrationArbitration under Agricultural Holdings ActExpensesExpenses of case stated to SheriffAgricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), Second Schedule, 14.
The Agricultural Holdings Act, 1908, which provides, with regard to arbitration proceedings, for the arbiter stating a case on a question of law for the opinion of the Sheriff, enacts, Second Schedule, Rule 14:The expenses of and incidental to the arbitration and award shall be in the discretion of the arbiter.
Held that the expenses of a case stated to the Sheriff fall to be dealt with by the Sheriff and not by the arbiter.
James M'Quater, who had been tenant of the farms of Tradunnock and Craigoch, of which Sir Charles Fergusson, Bart., of Kilkerran, was the proprietor,* quitted his holding at Martinmas 1909, and a claim for compensation for improvements at his instance against his
landlord was submitted, in terms of the Agricultural Holdings (Scotland) Act, 1908, to the arbitration of Robert Scott, Boghead, Irvine.
On 20th July 1910 the arbiter stated a case for the opinion of the Sheriff on two questions of law, with the second only of which this report is concerned.
The case set forth:Under the lease of said holding, it is provided that the said lands shall be managed and cultivated in six divisions according to the rules and regulations following, that is to say, the tenant shall never break up more than one of said divisions in any one year of this lease, and which division, after being broken up, shall bear a white crop, next year it shall be in drilled green crop (beans excluded), properly prepared with a sufficient number of ploughings and harrowings, thoroughly cleaned and sufficiently manured with not less than 25 tons of good farmyard dung per imperial acre, so far as the tenant may have dung, and so far as he may not have dung to manure the same, with 40 bushels of bone dust or with 5 hundredweights of the best Peruvian guano or other similar manure of equal value per imperial acre. The said lease is referred to and held to be part of this case. Sufficient artificial manure was applied to the green crop in the years 1907, 1908, and 1909 to meet the said regulation.
It is contended by the said Sir Charles Fergusson that the said James M'Quater is not entitled to claim for the unexhausted value of the purchased artificial manures applied to the land, except in so far as these artificial manures exceed the quantity which he was bound to apply in terms of the foregoing provision. The said James M'Quater contends that he is entitled to the unexhausted value of the artificial manures purchased and applied as directed by said lease, and that the clause of the lease above founded on is in terms of section 5 of the Agricultural Holdings (Scotland) Act, 1908, void in so far as it deprives him of any right to claim compensation.
The second question of law was:(2) Is the said James M'Quater entitled to claim compensation for the unexhausted value of artificial manures which, under the said lease, he is bound to apply to the holding?
On 6th October 1910 the Sheriff-substitute (Shairp) pronounced an interlocutor answering the second question of law in the negative.*
M'Quater appealed to the Court of Session, and the case was heard before the First Division on 14th December 1910.
Argued for the appellant;The appellant had not given up his right to compensation. The provisions of the Act as to a tenant's right to compensation were peremptory; and if the compensation provided by the Act was to be displaced, that must be definitely contracted for. There was no such contract...
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