Ross v Graesser
| Jurisdiction | Scotland |
| Judgment Date | 01 December 1961 |
| Docket Number | No. 8. |
| Date | 01 December 1961 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Land Court.
Small HoldingsEnlargement of holdingsGrazing land held on separate leaseApplication for declarator that croft included such landCrofters (Scotland) Act, 1955 (3 and 4 Eliz. II, cap. 21), sec. 3 (5).
The Crofters (Scotland) Act, 1955, sec. 3 (5), provides:"For the purposes of this Act any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others, shall be deemed to form part of the croft."
The crofter of subjects "A" was also the tenant of grazing land comprising subjects "B," situated about a mile from subjects "A." He brought an application in the Land Court for declarator that subjects "A" and "B" together formed his croft by virtue, inter alia, of section 3 (5) of the Crofters (Scotland) Act, 1955. The Land Court rejected his contention and he appealed to the Court of Session.
Held that the section applied only to rights in pasture or grazing land which were ancillary rights outside a croft, but formed pertinents of it, and not to separate substantive tenancies of grazing land.
William George Ross, tenant of Auchintoul hereinafter described as subjects "A", and tenant of grazing lands, hereinafter described as subjects "B," situated about a mile from subjects "A," applied to the Land Court for declarator that subjects "A" and "B" formed his croft. The respondent landlords in the application were Norman Hugo Graesser and the Forestry Commission, represented by the Lord Advocate. On 25th February 1960, after a proof, a Divisional Court of the Land Court found that the applicant was crofter of subjects "A," butquoad ultra dismissed the application. The part of the note of the Divisional Court with which this report is concerned was as follows:"An alternative argument was put forward by Mr Burns. He contended that it was not necessary for the applicant to prove that the estate had let subjects A and B to him or his predecessors as one unit for that result was effected by operation of the law. He invoked section 3 (5) of the Crofters (Scotland) Act, 1955. That subsection (which, as he pointed out, appears to be merely a re-enactment of section 26 (1) of the Small Landholders (Scotland) Act, 1911) reads as follows:For the purposes of this Act any right in pasture or grazing land held or to be held by the tenant of a croft, whether alone or in common with others, shall be deemed to form part of the croft. Mr Burns invited us to interpret this as meaning that any grazings which were let to a crofter automatically became part of his croft; accordingly, as it was admitted that the applicant had been formerly a statutory small tenant in respect of Auchintoul (and was, therefore, now the crofter thereof), it followed that subjects B, in so far as they had been proved or admitted to be in his tenancy, formed part of the croft of Auchintoul.
"On the face of it, we have to admit that the plain meaning of the subsection appears to be just what Mr Burns says it means. But, in our opinion, it is impossible to place such a literal interpretation on the words of subsection (5). It would lead to a state of affairs which could only be described as fantastic. We can think of many instances where crofters have lets of hill grazings in addition to their crofts, but they would be astounded, we fancy, if it were suggested that these grazings formed part of their crofts; for they have no doubt in their own minds that the grazings have been let to them separately from their crofts and on a different form of tenure. We know of no decided case in which such a literal interpretation of section 3 (5) of the 1955 Act, or section 26 (1) of the 1911 Act, has been suggested to, far less accepted by, the Court. It seems strange that the point, if it is a sound one, has apparently never been taken in the course of almost fifty years. It is not difficult to cite cases where Mr Burns' argument would have been a potent weapon, if it had been employed and had carried conviction with the Court, for example, Morrison v. Smith's Representatives, (1920) 8 L. C. 14, where the Court held that an island let to landholders for grazing sheep was not part of their holding;MacKinnon v. Martin, (1958) 46 L. C. 19, in which hill grazings which had been held by a deceased person who was also a crofter were treated as a holding under the Agricultural Holdings (Scotland) Act, 1949, quite distinct from the croft; and Reid v. MacLeod, (1956) 44 L. C. 47, in which it emerged that the respondent was a crofter as well as the tenant of hill grazings and a sheep farm. It has to be admitted that this is a somewhat negative approach to Mr Burns' proposition. However, the last case which we have cited illustrates very strikingly the sort of absurdity to ehich the argument leads. The respondent in that case had a croft in the Black Isle, while the hill grazings, of which he was also the tenant, were situated in Wester Ross, and were separated from the croft by nearly fifty miles of the most rugged and mountainous country. It seems to us that it would be ridiculous to suppose that it was the intention of the Legislature that, by virtue of section 3 (5) of the 1955 Act, such widely separated subjects would be linked together under one consolidated tenure. Yet, such would be the effect of interpreting section 3 (5) literally in that case. In order to supplement the resources of their small crofts, it is not uncommon for crofters to obtain, if they can, lets of additional grazing, for example, on deer forests, without either the landlord or the crofters for a moment considering that the land is being let under the Crofters Acts as an enlargement of the crofts. But if Mr Burns' interpretation of section 3 (5) were correct, this practice would cease, and crofters would no longer have an opportunity of augmenting their income in this way, unless they could find a landlord who was prepared to let additional land to them on crofting tenure. Both the 1911 Act (in a section amending the 1886 Act) and the 1955 Act contain specific provisions for the enlargement of crofts. It is scarcely conceivable, then, that section 26 of the 1911 Act (which is devoted to miscellaneous supplementary provisions and restrictions), and section 3 of the 1955 Act (which is concerned with definitions and conditions of tenure), should each have tucked away in it a subsection which, if interpreted as the applicant would have it, has the effect of enlarging the croft whenever a landlord has been, or is henceforth, unguarded enough to let additional grazing to a crofter. We are satisfied that these sections were never intended to introduce such far-reaching, and indeed revolutionary, changes as would be brought about, if the words of these sections were taken literally.
"The purpose of these sections, in our opinion, is quite clear. The typical highland croft comprises an area of arable land, usually with some...
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