Scottish Court of Session Decisions

The late Mr Grant of Arndilly, heir of entail in possession of that estate, granted to the respondent Colonel Bowies a lease of certain farms and hill pasture and certain salmon-fishings in the Spey for nineteen years from Whitsunday 1866, and also the sole and exclusive right to the whole shootings over the estate of Arndilly, with the exception of the home farm and policies, “for the same duration of lease or as long as Mr Grant can legally grant me (the respondent) towards the nineteen years.” Mr Grant died on 20th March 1870, and was succeeded by the complainer Mrs Menzies Grant as heiress of entail, who completed her title under the entail. The respondent having advertised the said shootings to let for the ensuing season, and having disregarded the complainer's intimation that his right to the shootings terminated upon the death of Mr Grant, the complainer lodged the present note of suspension and interdict, in which [she craved interdict prohibiting the respondent from sub-letting the shootings of Arndilly, and from shooting or interfering with the game thereon.

Crichton for her.?

W. F. Hunter for responden.

The Lord Ordinary on the Bills (MACKENZIE) granted the interdict craved, and passed Die note in order that the question of law might he tried. His Lordship added to his interlocutor the following Note:—

“The late Mr Grant of Arndilly was proprietor under a strict entail of the estate of Arndilly. Mr Grant let to the respondent Colonel Bowles on 28th May 1866 certain farms and hill pasture at a rent of £ 205, and certain salmon-fishings in the Spey at a rent of £ 20, for nineteen years from and after Whitsunday 1866, and also the sole and exclusive right to the whole shootings over the estate of Arndilly, with the exception of the home farm and policies, for. as the [respondent's offer hears, ‘ the same duration of lease, or as long as Mr Grant can legally grant me towards the nineteen years.‘ The rent for the shootings was £ 125 yearly, payable by two instalments, the first at 1st February thereafter, and the second at 1st August in the succeeding year. It was stipulated in tile respondent's offer that he was to be entitled to sub-let the whole or any part of Die shootings and fishings. Mr Grant died on 20th March 1870, and was succeeded by the complainer Mrs Menzies Grant as heiress of entail, who has completed her title under the entail. The respondent having advertised the said shootings as extending to about 12,000 acres, in Mr Snowie's list of shootings, dated 10th April 1870, with the services of one gamekeeper, to he let with the shooting lodge and salmon-fishings at a rent of £ 650 per annum for the ensuing season, and having disregarded the complainer's intimation that his right to the shootings terminated upon the death of Mr Grant, the complainers have lodged the present note of suspension and interdict, in which they craved interdict prohibiting the respondent from sub-letting the shootings of Arndilly, and from shooting or interfering with the game thereon.

“The question whether an heir of entail can grant a lease of the shootings over the entailed estate for nineteen years, which shall be binding after his death upon the future heirs of entail, has never been decided by the Court. In the case of E. of Fife v. Wilson, Dec. 14, 1859, 22 D. 191, the Lord Ordinary (Lord Ardmillan) held that such a lease was binding on the future heirs of entail. But the Court, holding that the lease of the shootings founded on had not been proved, recalled Lord Ardmillian's interlocutor, and did not decide the general question.

“It has been decided in the case of Pollock, Gilmour Company v. Harvey, June 5, 1828, 6 S. 913, and by Lord Barcaple in the case of Birkbeck v. Ross, Dec. 22, 1865, 4 Macph. 272, that a lease of shootings is not effectual against a singular successor. In the first of these cases the Lord

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Ordinary (Lord Corehouse) in his Note said— ‘By the law of Scotland the right of killing game, considered as a real right, is an incident of landed property.‘ The report of the case bears that the other judges, with the exception of Lord Craigie, concurred in Lord Corehouse's opinion. Mr Bell in his Principles (? 952), states that ‘the right to kill game does not exist as a real right separate from the land by sasine or lease; it is only a personal privilege in respect of the right of property.’

“The respondent maintained that the necessary inference to be drawn from the cases of Sinclair v. Duffus, Nov. 24, 1842, 5 D. 174; Menzies, March 10, 1852, 14 D. 651; Leith, June 10, 1862, 24 D. 1059; and Crawfurd v. Stewart, June 6, 1861, 23 D. 965, is, that the right to the game and shootings of an estate is not now regarded as a personal privilege or as an incident of property, but as a right of property, and that the late Mr Grant was entitled under the deed of entail which allowed leases of the entailed lands and estate, and also as an act of good administration of the estate, not injurious to the succeeding heirs, to grant the lease founded on by him.

“The Lord Ordinary considers that it was not decided in the cases of Sinclair, Menzies, and Leith, that the right to game and shootings must receive effect as a right of property, and not as a personal privilege, but only that the yearly rent or value of shootings, whether let or unlet, was to be taken into computation in fixing the amount of provisions to the widow and children of the preceding heir. He thinks that in none of these cases was the nature of such a right, or of a lease of shootings, decided, or necessary for the decision of the actions. The same remark applies, in his view, to the case of Crawfurd v. Stewart, where the question was whether the lessee of shootings was liable to be assessed for poor-rates?

“But, even supposing that the right to the game and shootings of an estate were not, as defined by Mr Bell, a mere personal privilege in respect of the right of property, but to some extent a right of property, that does not necessarily lead to the conclusiou contended for by the respondent. The heir in possession has a right of property in the mansion-house, offices, garden and pleasure grounds, and yet he cannot have these except for a year, or for a period to terminate with his life; Cathcart v. Schaw, 31st January 1755, Diet. 15,403; Leslie v. Orme, 2d March 1779, Diet. 15,530, 2 Pat. App. 533.

“The Lord Ordinary had the benefit of an able argument from the counsel of the respondent. He has since then carefully considered tire cases and the authorities cited. After giving these the best consideration in his power, lie is of opinion that the complainers are entitled to the interim interdict craved by them, and to have the note passed, so that the question of law may be fully considered and determined. As at present advised, he considers that the lease of the shootings to the respondent for nineteen years was not within the power of the late Mr Grant; and he thinks that it was not authorised by the entail, and was not an act of ordinary administration and arrangement, not injurious to the succeeding heirs, and practically necessary to enable the grantor to reap the full fruits.”