Mrs. Edna Jean Nelson+mrs Helen Johnston Nelson V. R And J Kinnaird
| Jurisdiction | Scotland |
| Judge | Sheriff Derek Livingston |
| Court | Sheriff Court |
| Date | 11 October 2011 |
| Docket Number | A198/08 |
| Published date | 11 October 2011 |
Case ref.: A198/08 JUDGMENT OF SHERIFF DEREK D LIVINGSTON
In the cause
MRS EDNA JEAN NELSON, residing at The Beild, High Street, Kinross, and MRS HELEN JOHNSTON NELSON, residing at Craigton House, Cleish, By Kinross.
PURSUERS
Against
MESSRS R AND J KINNAIRD, a firm formed under the Law of Scotland and having a place of business at Findatie Farm, Kinross, KY13 7LZ
DEFENDERS
Act: Sutherland
Alt: Lean
PERTH 2011 The Sheriff having resumed consideration of the cause finds the following facts admitted or proved.
FINDINGS IN FACT
1. The Pursuers are Mrs Edna Jean Nelson residing at The Bield, High Street, Kinross and Mrs Helen Johnston Nelson residing at Craigton House, Cleish, by Kinross.
2. The Defenders are Messrs. R & J Kinnaird a firm formed under the Law of Scotland and having a place of business at Findatie Farm, Kinross, KY13 7LY.
3. The Pursuer are the heritable proprietors of the two fields identified as being fields NT1789/7318 (the larger field) and field NT1789/0003 (the smaller field) set out in the documents contained in no.5/1 of process which consist of 49.342 acres at Findatie, Kinross. They became the heritable proprietors of the subjects in question on 30th January 2008. The area of ground extends to 13 hectares and 36 decimal or one hundredth parts of a hectare (13.36ha) at Findatie, in the Parish of Port Moak and County of Kinross and forming the Westmost of those fields or enclosures at Findatie being the subjects more particularly described in, disponed by and shown in pink on the plan annexed and executed as relative to the Lease by the Pursuers' predecessors in title Alexander Nelson and John Nelson in favour of the Defenders and all and whole that area of ground extending to 6 hectares and 29 decimal or one hundredth parts of a hectare (6.29 ha) at Findatie in the Parish of Port Moak in the County of Kinross forming the eastmost of those two fields or enclosures at Findatie aforesaid being the subjects more particularly described in, disponed by and shown coloured pink on the plan annexed and executed as relative to the Lease by the Pursuers' predecessors in title Alexander Nelson and John Nelson (the Nelsons) in favour of Defenders. The largest of the fields has a reference number NT/17685/99169 and the smaller of the two fields has a reference number NT/17939/99221. During the course of the Defender occupation of the land the reference numbers altered. The Defenders own the neighbouring farm known as Findatie Farm. It borders these fields.
4. The Defenders agreed a lease of these fields in March 1995 from the Nelsons who were then the heritable proprietors. They had acquired ownership in June 1983 and remained so until the present Pursuers became the heritable proprietors in 2008.
5. The initial period of let was from about 6th March 1995 until 30th December 1995. The terms of that lease were set out in writing by way of a holograph missive from JL Anderson, Solicitors as agents for the Nelsons and an acceptance by Ross Kinnaird on behalf of the Defenders. Inter alia it was agreed there would be a seasonal grazing let. Negotiations had started in about January of that year with Alexander Nelson representing the Nelsons and Ross Kinnaird the defenders.
6. The said lease was renewed on the same terms and conditions from 1st January 1996 terminating each year on 30th December and thereafter recommencing on the same terms and conditions on the 1st of January of the following year. This continued until 30th December 2006.
7. Each year a brief conversation took place involving generally Alexander Nelson and Ross Kinnaird to the effect that there would be a fresh lease on the same and conditions as before. This conversation took place generally in November when Ross Kinnaird would pay Alexander Nelson the second instalment of rent for the year. The first instalment of rent in the year was usually paid in March.
8. In November 2006 no such agreement was reached. The Defenders had fallen into arrears of rent and the Pursuers were becoming disenchanted with the arrangement.
9. In early 2007 the Defenders were asked to vacate the two fields by John Nelson. Ross Kinnaird asked John Nelson to allow them to stay until the end of the year ie 30th December 2007. The Pursuers agreed to this.
10. No agreement was reached by the parties in relation to the Defenders occupying the fields in 2008.
11. Following upon the Pursuers becoming owners of the subjects in 2008 they noted that the Defenders had sheep grazing on the subjects. The Defenders were asked to remove the sheep and initially did so and almost immediately reinstated them.
12. The Defenders shortly thereafter claimed that they had an agricultural lease and thus had security of tenure.
13. The B9097 road runs past the fields which were let by the Nelsons to the Defenders. If driving along the B9097 a clear view can be obtained of what is in the fields. Both of the Nelsons passed the fields regularly by car or van and could see into the fields.
14. A seasonal grazing let is one which is for less than 365 days. Its purpose is for grazing rather than crop growing.
15. Clause 4 of the missive of let provides, "The land shall be occupied by you for the grazing of cattle, horses, ponies and sheep and/or for mowing only and for no other purposes whatsoever. In particular no cultivation shall take place."
16. Clause 5 provides, "You accept all lands, buildings, hedges, fences and fixed equipment on the subjects as satisfactory for your purposes. You will not call upon the proprietors to carry out any repairs of whatsoever nature. You will be obliged to keep all lands, buildings, hedges, fences and fixed equipment in good condition (and in the case of hedges and fences in stockproof condition) throughout the period of let and carry out all or any necessary repairs of whatsoever nature."
17. Clause 15 of that lease states, "You undertake at 30th December 1995 to flit and move your whole goods, gear or animal stock as appropriate from the said subjects without any process of law and to leave the said subjects clear and redd and in every way tenantable after your waygoing."
18. It was further agreed orally at the time the lease was entered into that the Defenders would plough and then could grow a crop of spring barley on the larger field with that being undersown with grass seed. Without these crops being planted the larger field would not have been suitable for grazing having had potatoes on it the year before and these potatoes having been lifted and there being no crops and no grass on the field. The Defenders carried out this work in 1995 and similar work in the smaller field, with the Nelsons acquiescence in 1996.
19. The growing of the barley and the under sowing of the grass seed in the larger and smaller fields in 1995 and 1996 respectively contradicted the terms of the written lease entered into by the parties. The purpose of that growth was to substantially increase the quality of the grass for grazing in the two fields.
20. As a matter of course at least one of Alexander Nelson and John Nelson would check the fields let on 30th December and sometimes on 31st December each year when they found them to be clear of livestock and crops.
21. Both Alexander Nelson and John Nelson regularly inspected the fields. They viewed them several times a week. At no time other than in 1995 and 1996 did they see any crops growing in the fields when they viewed the spring barley planted to improve the grass crop for grazing purposes.
22. Alexander Nelson was experienced in agricultural matters and is well aware of the difference between a grazing lease and an agricultural lease.
23. The Defenders erected a slurry tank which is a large metal tank which holds waste from dairy cows at least partly on the subjects let in 2006.
24. There is a farm subsidy system which involved applications being made by use of an integrated agricultural census sheet (an IACS form) which record what land a farmer occupies, what use he makes of the land and the subsidies he is claiming on the land.
25. There are random checks made by the Government body concerned (The Rural Payments and Inspections Directorate) regarding the accuracy of the information contained in these forms. No check was ever made in relation to the forms submitted by the Defenders.
26. The Defenders submitted an IACS form in 1995 when they made a claim regarding spring barley being grown in the larger field and being undersown with grass.
27. An IACS form was submitted for 1997 by the Defenders claiming that winter wheat was grown in the smaller field.
28. An IACS forms submitted by the Defenders for 1998, 1999 and 2000 claimed that spring barley was being grown in the smaller field.
29. At no time did the Nelsons agree or acquiesce to the fields let to the Defenders being used for anything other than grazing purposes.
Finds In Fact and Law
30. It has been proven on the balance of probabilities that the defenders remained in the subjects let for no more than 364 days per annum vacating same by December 30th of each year.
31. It has been proven on the balance of probabilities that the defenders operated the fields let to them for grazing purposes only and that in any event they at no time had the consent or acquiescence of the Nelsons to do otherwise.
THEREFORE
1. Sustains the Pursuers first plea in law subject to deletion therefrom of the words "and interdict";
2. Repels the second and third pleas in law for the Pursuers and the Defenders pleas in law in the principal action and sustains the Pursuers third plea in law in the counterclaim and repels the Defenders first plea in law in the counterclaim and the Pursuers first two pleas in law in the counterclaim;
3. Grants decree as first, second, fourth, fifth and seventh craved for the Pursuers;
4. Dismisses craves three and six for the Pursuers and dismisses the counterclaim;...
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