Stewart v M'Aulay
| Jurisdiction | Scotland |
| Judgment Date | 05 December 1908 |
| Docket Number | No. 140. |
| Date | 05 December 1908 |
| Court | Court of Session |
Lord Pearson, Lord Ardwall, Ld. Johnston.
Election LawCounty Occupation FranchiseBuildings erected by tenant on land leasedValuation-rollRepresentation of the People (Scotland) Act, 1868 (31 and 32 Vict. cap. 48), sec. 6 Representation of the People Act, 1884 (48 and 49 Vict. cap. 3), sec. 5Lands Valuation (Scotland) Amendment Act, 1895 (58 and 59 Vict. cap. 41), sec. 4.
The tenant under a lease of a piece of land for twenty-one years, at a rent of 5, was bound under the lease to erect tomato-houses of the value of not less than 100, and to remove them at the end of the lease. The tenant having erected the tomato-houses was entered in the Valuation-roll as proprietor and occupier thereof at the value of 36, and as tenant and occupier of the land at the value of 5. Held that he was entitled to be entered on the register of voters as tenant and occupier of land and tomato-houses.
At a Registration Court for the Southern Division of the county of Lanark, held at Lanark on 9th October 1908, David W. Stewart, fruit grower, Daleville, claimed to be enrolled on the roll of voters for the parish of Carluke (West) in that division as tenant and occupier of tomato-houses at Catcraig in said parish. James M'Aulay, stoker, Lawmuir, Carluke, a registered voter in the division, objected to the claim on the ground that the claimant did not fulfill the requirements of the county occupation franchise, as defined by section 5 of the Representation of the People Act, 1884, and section 6 of the Representation of the People (Scotland) Act, 1868,* inasmuch as he was not in the occupancy as tenant of subjects of sufficient yearly value.
The Sheriff-substitute (Scott Moncrieff) rejected the claim. Stewart obtained a special case for appeal. The special case stated that the following facts were proved:
The claimant, David W. Stewart, is tenant under a lease entered into between William Stewart of Catcraig, and him, dated 7th June 1905, of a piece of ground, part of the lands of Catcraig, in the parish of Carluke, extending to 1 acre imperial measure or thereby. The duration of the lease is twenty-one years from the term of Martinmas 1903, and the rent payable under the lease is 5 per annum. Clause 2 of the lease is in the following terms:The subjects hereby let are let for the purpose of erecting tomato-houses, and the tenant (David W. Stewart) binds himself, so far as not already done, to erect tomato-houses to the value of not less than 100, and further, at the termination hereof, he binds himself and his heirs and successors to remove the said tomato-houses and other erections in connection therewith, and restore to an arable state all ground occupied by them, or in their option to pay to the landlord or his heirs or successors compensation at the rate of 30 per imperial acre for all ground so occupied or damaged and not restored.
Tomato-houses had been erected by David W. Stewart on said ground, and in virtue of the provisions contained in section 4 of the Lands Valuation (Scotland) Amendment Act, 1895, he was entered in the Valuation-roll as proprietor and occupier of the tomato-houses at Catcraig, at the rent or yearly value of 36. He was also entered in
the Valuation-roll as tenant and occupier of the ground on which the tomato-houses were built, at the rent or yearly value of 5.*
The question of law was:Is the claimant, in respect of the facts above stated, entitled to be enrolled as claimed?
The case was heard before the Registration Appeal Court on 16th November 1908.
Argued for the appellant;The appellant's legal character was that of tenant. His right of entry was as tenant, and tenant only. The rule indificatum solo solo cedit applied to the tomato-houses, and they were the property of the landlord. It made no difference that the appellant was bound to remove them at the end of the lease. No doubt he was entered in the Valuation-roll as proprietor, but that was only for the purposes of the Valuation Acts.1 The entry did not affect the present question, except in so far as it shewed the value of the subjects. The appellant was therefore entitled to be enrolled as tenant and occupier of the land and tomato-houses.2
Argued for the respondent;The appellant was not tenant of the tomato-houses. They were not partes soli. They never were and never would be the property of the landlord. They were the property of the appellant. He was therefore only tenant of land of the value of 5, and so was not entitled to be entered as tenant and occupier.
At advising on 5th December 1908,
Lord Ardwall. In this case the claimant is the tenant of a piece of ground, part of the lands of Catcraig, under a lease for twenty-one years, the rent being 5. The subjects were let, as the lease bears, for the purpose of erecting tomato-houses, and the claimant bound himself, so far as not already done, to erect tomato-houses to the value of not less than 100. It is clear, accordingly, that he erected these tomato-houses in his capacity of tenant, and for the purpose, inter alia, of giving the landlord a certain amount of security for his rent during the currency of the lease. It is true that the tenant is taken bound at the termination of the lease to remove the tomato-houses and restore the ground to its...
To continue reading
Request your trial