Stormonth Darling v Young
| Jurisdiction | Scotland |
| Judgment Date | 30 October 1914 |
| Docket Number | No. 6. |
| Date | 30 October 1914 |
| Court | Court of Session |
Lord Dundas, Lord Salvesen, Lord Guthrie, Lord Justice-Clerk.
Lease—Small holdings—‘Holding’—Subjects consisting of smithy and land—Subjects not wholly agricultural or pastoral—‘Tradesman placed in the district by the landlord, for the benefit of the neighbourhood’—Small Landholders (Scotland) Act, 1911 (1 and 2 Geo. V. cap. 49), secs. 26 (3) (f), (7), (10), and 32—Agricultural Holdings (Scotland) Act, 1908 (8 Edw. VII. cap. 64), sec. 35 (I)—Crofters Holdings (Scotland) Act, 1886 (49 and 50 Vict. cap. 29), sec. 33.
The yearly tenant of subjects consisting of a blacksmith's shop, a dwelling-house, and 51/2 acres of land, applied to the Land Court under the Small Landholders (Scotland) Act, 1911, to fix the first equitable rent payable by him as statutory small tenant of the subjects. The house and shop were built and maintained by the landlord, and the shop had always been occupied as a smithy by the applicant and the previous tenants; but the applicant was under no obligation either to use the shop as a smithy or to do blacksmith work for the tenants of the landlord's estate, nor were these tenants bound to employ him. The value of the smithy to the applicant was less than that of the house and lands.
Held that the subjects did not form a holding to which the provisions of the Small Landholders Acts applied, in respect (1) that they were not ‘wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral,’ and accordingly did not constitute a ‘holding’ as defined in sec. 35 of the Agricultural Holdings (Scotland) Act, 1908; and, further, (2) that they were let to ‘a tradesman placed in the district by the landlord for the benefit of the neighbourhood’ within the meaning of sec. 33 of the Crofters Holdings (Scotland) Act, 1886.
Yool v. Shepherd, 1914 S. C. 689, followed.
Inan application to the Land Court under the Small Landholders (Scotland) Act, 1911, by James Young, Jedburgh, for an order fixing the equitable rent for the subjects of which he was tenant, or alternatively for the portion of the said subjects other than the buildings, the Land Court granted the application, and, at the request of Patrick Stormonth Darling, the curator bonis of the proprietor, the Marquess of Lothian, stated a case for appeal.
The statements in the case were as follows:—
‘(2) The respondent was at the commencement of the Small Landholders (Scotland) Act, 1911, and is, a tenant from year to year of a blacksmith's shop, dwelling-house, and about 51/2 acres of land, which are all let together at a rent of £17, 9s. 6d. The blacksmith's shop was built by the proprietor of the estate prior to 1863, and has always been used as a smithy. The respondent's father, Walter Young, became tenant of the smithy in 1863. Prior to that year it had been occupied by one Morrison as a smithy. In 1871 a house was built on the opposite side of the road and let to Walter Young. In 1873 about three acres of land were also let to Walter Young. Neither the landlord nor any of the tenants on the estate were under any obligation to come to the smithy or employ Walter Young as a blacksmith. Walter Young was under no obligation to work for the estate or any tenant of the estate. There was no proof that Walter Young was placed in the district by the landlord for the benefit of the neighbourhood. He paid an ordinary rent for the subjects let to him. There were and are two other smithies on the estate, one about two miles, and the other three miles distant.
‘(3) In 1888, on the death of his said father, the respondent, who had previously worked as his father's assistant, succeeded him as tenant of the smithy, house, and land. There was no change made in the terms and conditions of tenancy when he succeeded, or since he succeeded, with the exception that additional ground was let to him eight years thereafter. He also paid an ordinary rent for the subjects let to him, was under no obligation to work for the estate or any tenants, nor was the estate nor any tenant bound to come to this smithy or employ him as a blacksmith. Neither orally nor by writing was James Young ever put under any obligation to work as a blacksmith. He might have closed the smithy or put it to some other use. There was no proof that he was placed in the district by the landlord for the benefit of the neighbourhood. In 1896 additional ground of about 21/2 acres in extent was let to the applicant, in terms of the following letter by the proprietor's factor:—
“Jedneuk, Jedburgh, 14 Feby. 1896.
“Dear Sir,—I have now staked off the piece of ground at the upper end of field No. 322 on the Ordnance Survey plan for an additional piece of ground for you, the entry to be at Whitsunday 1896; you can, however, have occupation at once. The rent to be at the rate of 30s. (one pound ten shillings) per annum per imp. acre. I think there is 21/3 acres of it. This, however, will be correctly ascertained afterwards.
“The first half year's rent to be payable at Marts. 1896. The occupation to be from Whits, to Whits., along with the house, shop, and ground already occupied by you.
“Your signing your name at the foot of this, below mine, will complete the agreement, and on your returning this letter to me I will send you a copy of same.—I am, yours faithfully,
“John Caverhill.
“James Young.”
Beyond said letter the respondent has never had any writing setting forth the conditions of his tenancy, and neither of the previous tenants had any written lease.
‘(4) Both the smithy and the house have throughout been maintained by the proprietor. Since the respondent became tenant he has erected a stable and cart-shed for the working of the land, mainly at his own expense. The value of the smithy to the tenant is less than the value of the dwelling-house and land. While the respondent has always had customers from outside the estate, the slightly larger portion of his custom has usually come from the Lothian estate.’
At the hearing and proof before the Land Court, the proprietor objected to the competency of the application on the ground that the applicant was a tradesman placed in the district by the landlord for the benefit of the neighbourhood, within the meaning of the Small Landholders (Scotland) Act, 1911, sections 26 (7) and (10), and the Crofters Holdings (Scotland) Act, 1886, section 33.*
On 14th October 1913 the Land Court pronounced an order finding that the proprietor had failed to prove that the applicant or his father had been placed in the district for the benefit of the neighbourhood; finding that the applicant was a statutory small tenant; and fixing the rent and period of renewal of the tenancy.
The contentions of the parties respecting this order were set forth in the stated case as follows:—
‘The appellant objects to the final order of the Land Court (1) that the subjects of the application are not a holding within the meaning of the Small Landholders (Scotland) Acts, in respect that on the facts stated the subjects were at the commencement of the Act of 1911 held as one for the purpose of carrying on the business of a smith; (2) that the said subjects are a holding let to a tradesman placed in the district by the landlord for the benefit of the neighbourhood, and are therefore excluded from the operation of the Small Landholders Acts, under section 26, subsections (7) and (10) of the Small Landholders (Scotland) Act, 1911, and in any event (3) in respect that the said blacksmith's shop does not form part of the holding for the purposes of the Small Landholders (Scotland) Acts, and therefore falls to be excluded from the subjects held by the respondent as a statutory small tenant under said Acts.
‘The respondent maintains (1) that the matters in dispute are truly questions of fact, and that no proper question of law arises on the facts stated, and respectfully refers to section 32, subsection 13 of the Small Landholders Act, 1911, and (2) alternatively that the decision of the Court was right.’
The questions of law were:—‘(1) Whether, on the facts as stated, the subjects of the application constitute a holding to which the provisions of the Small Landholders (Scotland) Acts apply?* (2) Whether, on the facts stated, the Court were entitled to hold that the whole subjects of the application were not excluded from the operation of the Small Landholders (Scotland) Acts under and in terms of section 26, subsections (7) and (10), of the Small Landholders (Scotland) Act, 1911? (3) In the event of the previous question being answered in the affirmative, whether the Court was bound to exclude the blacksmith's shop from the respondent's holding as a statutory small tenant under the Small Landholders (Scotland) Acts?’
The case was heard before the Second Division on 17th and 24th October 1914.
Argued for the appellant;—(1)...
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