Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TACK.
Subject_3 Right of the Landlord to Shell-marle found within the Farm, and to work such Marle during the Lease.

David Bethune of Balfour
v.
Patrick Jervice

Date: 10 February 1778

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[Fac. Coll., VIII. 20; Dict., 15,267.]

Westhall. It is admitted that a tenant may mix the sand of one part of his ground with the clay of another, and vice versa, and so also as to moss. I do not see the distinction as to marle.

Covington. A tenant cannot open quarries for building and inclosing, although beneficial to the farm: the master must judge of that, not the tenant. Here the marle is of small extent. If the tenant is permitted to use it, the marle will be exhausted. There are many liberties which a master would not refuse, but which a tenant cannot take, as when there is a very great quantity of marle in the ground, more than the master can find use for. The case of clay laid on sand does not come up to the present case, for there the subject is not taken away; but here the marle is exhausted, and ceases to be, in a very few years. The tenant's right is merely superficial: how then can he dig for marle, which is consumed in using? When a moss is let, the master cannot cast peats for sale; neither can the tenant destroy the moss, to improve the soil.

Braxfield. Had the marle been known at the date of the lease, I am entitled to presume that the master, on giving the use of it to the tenant, would have increased the rent. If the tenant is allowed marle, he will have a great advantage not thought of or intended. The general proposition is, that the right set to the colonus is a right to the surface,—glebam vertere: he is not entitled to limestone without paction. I do not think that a tenant can lay clay on sand, or sand on clay, any more than cast feal to make an earth dunghill.

Gardenston. Unless it be a matter innoxiæ utilitatis, a tenant cannot take clay from one part of the land and lay it on another: he has merely a superficial right. He may be debarred from using sod for the purpose of making earth dunghills. This was a very prevalent mode in the north of Scotland, and has been justly checked. The people in that country have an uncivil proverb,—“Mack-feal and nobles are the curse of the land.”

Kaimes. The nature of a lease is a right to the surface; yet the tenant may carry one sort of soil from a particular spot to mix it with soil of a different nature. This is most judicious and profitable husbandry. The tenant has no privilege as to any thing below the surface: the very liberty to dig for limestone is a proof of this. Here there is a bed of shell-marle neither known nor bargained for: it was not in the view of parties, and consequently the tenant paid no additional rent. Marle may chance to be covered with rich soil and grass: the tenant cannot be permitted to annihilate the ground under, with the view of getting at the marle. If he has the privilege of digging, why may he not sell it as well as he does crop?

Justice-Clerk. I would not discourage tenants in the common course of husbandry, but I do not think that a tenant can destroy any part of his farm. It often happens that marle is unexpectedly discovered: if the tenant was to have the use of it, he would gain an exorbitant profit by a mere casualty, while the master would suffer loss by being deprived of the profits of the subject.

On the 10th February 1778, “The Lords found that the property of the marle in question belongs to the pursuer, and that the defender has no right or title to work, use, or dispose of it; and that the defender did wrong in interrupting the pursuer in working the marle, and in working and using there of;” adhering to Lord Elliock's interlocutor.

Act. Ilay Campbell. Alt. G. Wallace.