Scottish Court of Session Decisions

From 1866 to 1885 James M'Duff was tenant of the farm of Kingsdale on the estate of Balbirnie in Fife under a nineteen years' lease. At the expiry of this period M'Duff obtained a new lease of the farm from the proprietor, John Balfour, for other nineteen years from Martinmas 1885, with an option to either party to terminate the lease at the expiry of five years.

The subjects so let extended to 349 acres, and the rent fixed was £460. The lease laid the following obligations, inter alia, upon the tenant—“And further, to manage, cultivate, and improve the lands hereby let, according to the rules of good husbandry, adopting a rotation of not less than five years, whereof two years at least shall be pasture, and shall not hurt or run out the same by taking scourging crops or otherways, and particularly without prejudice to the foresaid generality, the following stipulations are specially agreed to, namely: … That the tenant shall leave to the proprietor or incoming tenant, at the expiry of this lease, the dung that may be made after the 15th day of June immediately before the expiry; all dung made previously must be applied to the lands hereby let for the benefit thereof; said dung so to be left to be paid for by the proprietor or incoming tenant at a price to be fixed by two arbiters, to be mutually chosen: … . That the tenant shall be entitled to sell turnips and hay, provided he shall produce evidence to the satisfaction of the proprietor that he has brought and applied to the lands hereby let vegetable matter, bones, or dung to at least the same manurial value during previous years: That, with the exceptions above-mentioned, the tenant shall not sell or remove from said farm any turnips or green crop (except potatoes), hay, grass, straw, fodder, chaff, or dung of any kind that may be grown or made on the lands hereby let, but shall annually consume the same on said farm for manure and shall apply such manure to the lands yearly.”

M'Duff took advantage of the break at the end of the first five years, and the lease accordingly came to an end at Martinmas 1890. At that date there was upon the farm 1372 cubic yards of dung, and M'Duff claimed payment of this amount from the landlord, at a price to be fixed by arbiters chosen in accordance with the lease.

The landlord having denied that he was bound to take over so large a quantity of dung, M'Duff raised an action to enforce payment. He averred that the whole of the dung which was left on the farm had been made after 15th June 1890.

In statement of facts for the defender it was set forth, inter alia—“During the last three years of the lease the pursuer, instead of annually consuming the straw upon the farm, has kept it up, and used instead purchased material, such as mill-dust. Accordingly at 15th June last the pursuer had on the farm a quantity of straw amounting to about a whole year's crop, and out of all proportion in excess of the quantity which would have been on the farm at that date in the ordinary course of prudent management, or if he had complied with the provisions of the lease. About that time he brought upon the farm a large stock of cattle, which consumed the straw, and converted it into manure between 15th June and Martinmas. Under the lease as aforesaid, the tenant's claim for payment for manure is limited to the manure made subsequent to 15th June in the last year of the lease. The object of the pursuer in adopting the course of management detailed was to make an abnormal quantity of manure within the foresaid period and claim payment for it.”

The defender pleaded—“(3) The defender is not bound to pay for more manure than would have been made in the ordinary course of prudent management and in accordance with the system of cultivation prescribed by the lease within the period specified in the lease, and the pursuer is bound to leave the remainder free of charge to the defender or the incoming tenant.”

The value of the dung was ascertained by remit, made of consent of parties, to be 4s. 3d. per cubic yard, or £291, 11s. in all.

Proof was allowed, the material results of which were as follows—It appeared that the amount of manure left on the farm at the close of the lease was beyond any previous experience in the neighbourhood for a farm of the size of Kingsdale, and proved an objection to the letting of the farm, so that the landlord had ultimately to accept from the incoming tenant a sum much less than its value. It was, however, proved that it had all been made since the 15th of June 1890, and its amount was accounted for by the fact that under his second lease the pursuer had introduced a different system of management from that practised in the district, with the result of making a greater quantity of manure in the summer months. The district in which the farm of Kingsdale was situated was not a wheat-growing district, and the green crop was the only crop to which manure was applied. The ordinary system of farm management which had been followed by the pursuer during the whole of his previous lease was to make the bulk of the year's straw crop into manure in the course of the following winter, and to apply it to the next season's green crop, only a small proportion of the straw, a fourth to a sixth, being kept after the month of June for use as litter during the summer, for happing the potatoes and thatching the stacks of the next crop. Under this system a good stock of cattle was kept and fed in the courts during the winter. In summer only a few cattle were kept, and these were pastured in the fields.

Under his new system the pursuer kept as many cattle in summer as in winter.

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He fattened them in the courts, and bought a large quantity of feeding stuffs for this purpose. To provide litter he kept a considerable part of the straw crop for consumption during the summer. He also increased the yield of straw which the farm gave by breaking up and cropping some ground which previously he had allowed to lie fallow, and besides straw he used pob or dust from flax mills, when that was necessary. The evidence showed that the straw crops of 1888 and 1889 were exceptionally bulky, and that no pob was used by the tenant during 1890. Under the pursuer's new system the straw crop of one season was consumed by the time the next season's crop was ingathered, and all the manure made after June in one year was applied to the green crop of the next year. It was proved that the green crop of 1890 had been well manured.

The date at which the pursuer adopted his new system was uncertain. The defender failed to establish that the change was made in the last year of the lease.

On 18th August 1891 the Lord Ordinary ( Kincairney) pronounced this interlocutor “Finds (1) that the pursuer has, from Martinmas 1866 to Martinmas 1890, been tenant of the farm of Kingsdale belonging to the defender, and situated in the county of Fife; (2) That the lease current at Martinmas 1890 provides that the tenant shall annually consume the straw made on the farm for manure, and shall apply such manure to the lands yearly, and that all dung made prior to the 15th June immediately preceding the termination of the lease shall be applied to the lands for the benefit thereof; and that all dung made after the said 15th June shall be left to the proprietor or incoming tenant, at a price to be fixed by arbiters; (3) That at the expiry of the lease at Martinmas 1890 there was on the farm dung to the extent of 1372 cubic yards, which had all been made after the 15th June 1890; (4) That it has not been proved that the pursuer's course of management, by which the said manure was produced, was unfair or in contravention of his lease, or of the rules of good husbandry; (5) That the value of the said manure at Martinmas 1890 was £291, 11s.: Therefore finds the pursuer entitled to be paid the value of the said manure, and decerns against the defender for payment to the pursuer of the said sum of £291, 11s. with interest as concluded for: Finds the pursuer entitled to expenses, &c.

“ Opinion.—This is an action by an outgoing tenant against his landlord for the value of the farmyard manure left on the land and taken by the landlord at Martinmas 1890, when the lease expired.

The parties have by agreement fixed the amount of the manure left at 1372 cubic yards, and its value at Martinmas 1890 has been ascertained under a remit, made of consent in this process, to have been 4s. 3d. per cubic yard, or £291, 11s. in all.

The pursuer has been tenant of the farm of Kingsdale in Fife since Martinmas 1866. His first lease expired at 1885. He then obtained another 19 years' lease, but with a break at the option of either landlord or tenant at the end of five years. Of this option the tenant availed himself, and so brought the lease to an end at Martinmas 1890.

The pursuer's claim is founded on a clause in his lease, to the effect that he should leave to the proprietor or incoming tenant the dung made on the farm after the 15th day of June immediately before the expiry of the lease, at a price to be fixed by arbiters; but should apply to the land all the dung made before that date. Provision is thus made for disposal of all the dung on the farm at the end of the lease—that made before 15th June is allotted to the land, that made after is to be sold to the landlord.

It is clear that 15th June was fixed on as a date at or before which the sowing of the green crop might be assumed to be completed; and what the clause really provides is, that all the manure on the farm when the green crop was sown in the last year of the lease should be applied to that crop.

It has been amply proved that all the dung left was made after 15th June 1890. At that date all the courts were clear, and no manure remained on the farm unapplied. I regard this as a point proved beyond dispute, and I do not think it was seriously disputed.

The pursuer is therefore prima facie within the clause on which he founds, and prima facie is, in virtue of that clause, entitled to be paid for the manure he has left.

The amount of manure left, however, is very exceptionally large, so much so that it is in evidence that intending offerers for the farm were deterred by it, and that the landlord found himself obliged in the end to accept from his new tenant a sum much less than its value, and the landlord now maintains that it could not have been made, and in fact was not made, by a course of management in compliance with the lease, with the custom of the district, or with the rules of good husbandry. His plea is that ‘The defender is not bound to pay for more manure than would have been made in the ordinary course of prudent management, and in accordance with the system of cultivation prescribed by the lease within the period specified in the lease, and the pursuer is bound to leave the remainder, free of charge, to the defender or incoming tenant.’

I think that plea sound in law, and consider that when the lease provides that the tenant must apply all the manure made on the farm before June, what is meant is, all the manure that ought to have been made in a fair course of management, and when it provides that the landlord shall pay for all the manure made after 15th June, what is meant is, that he shall pay for all the manure which should have been made in a fair course of management after the sowing of the green crop.

The defender founds on a provision in the lease to the effect, so far as it bears on this question, that the tenant shall not sell

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the straw but shall annually consume it on the farm for manure, and shall annually apply such manure to the lands.

These are the only provisions of the lease to which it is necessary to refer.

There is no wheat grown on Kingsdale Farm, and it has been the pursuer's practice to apply his farmyard manure to the turnip break at seed time, that is in April, May, or June, and to no other crop and at no other time. That has also been the custom on most of the farms in the district on which wheat is not grown.

This may or may not be enlightened farming, but there is no doubt that the clauses of the lease have reference to that custom.

It has apparently been the general custom in the neighbourhood to apply much the larger part of the straw of one year to the green crop of the following year, and to reserve only a fraction, from a fourth to a sixth, of the straw of the year for use during summer and autumn. It has also apparently been the custom to keep comparatively few cattle in summer and to keep them on pasture, and thus to make very little manure after June.

In June 1890 the pursuer did not follow this ordinary course pursued by his neighbours, but he had a large quantity of the straw of the crop of 1889 not converted into manure after the green crop was sown and manured. I do not think the exact amount is stated in the proof, but as it was the straw out of which the 1372 cubic yards of manure were made, it must have been more than 100 tons.

Now, the lease contains no restriction whatever as to the amount of the manure which the tenant might make after 15th June, and therefore the tenant committed no breach of the express provisions of the lease in converting all that straw into manure; and it is hard to see how the conversion of it into manure could possibly be against the rules of good husbandry, and no witness says that it was. Therefore it would seem to follow that no exception can be taken to the conversion of the straw which was on the farm on 15th June 1890 wholly into manure, and that the pursuer's management after 15th June 1890 cannot be successfully challenged.

The true question must therefore regard the straw which was left after turnip sowing, rather than the manure made from it, and the question is, has it been shewn that that straw was accumulated by a course of management at variance with the provisions of the lease and of good husbandry. And that is the only question, because there is no question raised in this action about miscropping nor about mismanagement of any kind, except so far as it bears on this one question as to the amount of the straw in June. Proceedings have been taken under the Agricultural Holdings Act, but none of these proceedings have been put into the proof except the claims of parties. They have been carefully withheld, and I know nothing at all about them.

The question whether the straw has been fairly accumulated is the question to which the proof has been directed, and I have found it very difficult, all the more difficult I must take leave to say, on account of the very unsatisfactory character of the proof, which is desultory, loose, and speculative, and much of it little to the point. Long as it is, it is remarkable how little of definite and tangible fact can be extracted from it.

The first question is, whether it has been proved that the straw remaining at June 1890 was accumulated by a violation of the provisions of the lease? It falls on the defender to establish that it was, and I have come, though not without hesitation, to think that he has not done so.

The precise meaning of the provision that the straw shall be consumed annually for manure and that the manure shall be applied to the land annually is not obvious. The time of the year when it is to be applied is not mentioned. But there is no time when it could be applied according to the custom of the district and the pursuer's system of cultivation except the potato and turnip seed time. But it cannot be meant that all the straw of one harvest shall be applied to the next green crop. That would be impossible, because it is admitted that it is necessary to hold some part of it over for use during summer and autumn. It is said, indeed, to be the custom to apply a very large proportion of the crop of one year to the green crop of the next but there is no provision in the lease to that effect. The mode in which according to the defender the requirement of the lease ought to be complied with is by the application of five-sixths of the crop to the next green crop and one-sixth to the green crop following. But the words of the lease would be equally complied with by the application of the manure to the two green crops in any other proportion, as, for example, if half of the crop were to be applied at the first turnip sowing and the other half at the next turnip sowing. In either case the manure would be applied annually, that is, between June and June.

Now, is it proved that the pursuer failed to comply with this requirement? It may be the fact that he did fail to do so at some time in the course of one or other of his leases, but I am unable to hold that it is proved that he did.

Few of the witnesses for the defender knew anything about the pursuer's course of management. Most of them only saw the farm on one or two occasions in 1890 or 1891 and had no knowledge about his management previously. The witness John Hill, it is true, was a neighbour, but he says little on the point. He appears to be not unfriendly to the pursuer, and his evidence adds little to the case of the defender. John Ballingall, who is probably the defender's principal witness, depones to having seen about 70 tons of straw of the year 1888 in August 1889, but his evidence goes no further back. He is corroborated by Mr Neil Ballingall, the defender's factor, who no doubt speaks about the pursuer's management generally, but whose evidence

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appears to me to be so indefinite as to be of very little value in this question.

The defender maintains that the pursuer must needs have withheld some part of his straw, in violation of the lease, otherwise his manure heap could not have so much exceeded the manure which he purchased when he came to the farm. I am not satisfied on this point, having in view the pursuer's evidence that he was in the habit of purchasing manure, and also mill dust and dreg and draff from the Methil Distillery, which is in the neighbourhood of his farm, but, at all events, I have no means of knowing at what period of the pursuer's occupation it occurred, if it happened at all.

I therefore do not think it proved that the pursuer has violated the express conditions of his lease in relation to the annual consumption of the straw and application of the manure.

But the defender further maintains that the pursuer's accumulation of straw was the result of a violation of the rules of good husbandry.

If it was proved that the straw remaining in June 1890 was unduly withheld from the turnip break of June, I should have held the defence established, and should not have allowed the pursuer the value of manure made from straw, which should in fair management have been converted and applied to the green crop. But I do not think this proved. The defender's evidence is not, in my mind, satisfactory or convincing on the point, and I cannot prefer it to the direct evidence of the pursuer, and of his various farm servants, that the green crop was liberally manured, except what is described as a small portion, which was not manured because of a miscalculation of the available amount of manure. The evidence led by the pursuer is certainly to the effect that the green crop was fairly manured, and the green crops which followed appear to have been above average, and such as could not have been looked for had the land been starved, unless it were forced by artificial manures, which does not seem proved. No doubt on this point there is evidence both ways. I only say that I think the evidence for the pursuer is the stronger.

( After examining the evidence on this point his Lordship continued)—“The landlord complains that he suffered great disadvantage and loss by the accumulation of unapplied manure. He did so suffer, if he can show that the tenant was under obligation to apply it to the green crop of 1890, but not, I think, otherwise. If the green crop was fairly treated I do not see any disadvantage to which the landlord has been illegally subjected. He or the incoming tenant required at least part of the manure if not the whole of it, and if they had not found it on the farm, would have required to purchase it else-where; but it is sufficient to say that it was manure actually made, and not unfairly made, after 15th June 1890, and after the green crop was adequately manured.

On the whole, I have, after repeated persual of the proof, come to the conclusion that the defender's defence, although good in law, has not been made out in point of fact, and that the pursuer is entitled to be paid for the manure left on the farm.

The view which I have taken of the case depends on the provisions of the lease and the evidence, and not on any question of common law. I may, however, quote the following cases which bear on the point, most of which were referred to:— Berry v. Allan, 1827, S. 212 aff. June 10, 1829, 3 W. and S. 429; Greig v. Mackay, July 20, 1869, 7 Macph. 1109; Murray's Trustees v. Murray, July 19, 1889, 26 S.L.R. 762; Reid's Executor v. Reid, February 28, 1890, 17 R. 519; Penman's Executor v. Jamieson, January 20, 1886, per Lord Fraser; and Easson v. Morrison, January 21, 1891, 2nd Div. Neither of the last two cases are reported.”

The defender reclaimed, and argued—The pursuer had violated his lease, and the large quantity of manure for which he claimed payment was the result of this violation. He was bound by the lease to apply all the straw of one crop, in the form of manure, to the green crop of the next year, except such small portion as it might be necessary to retain for litter, thatching the next year's stacks, and happing the potatoes. It was only in this way that he could consume the straw crop of one year, and apply it to the land before the time for using the crop of the succeeding year arrived. That was what he was required to do by the stipulation in the lease, and what he had failed to do. Assuming that he had not contravened the stipulations of the lease, and that he was entitled to alter the system of management which the parties had in contemplation at the date of the lease, he was not entitled after making this change to take advantage of a clause in the lease framed with special regard to that previous system— Greig v. Mackay, July 20, 1869, 7 Macph. 1109, esp. per Lord Justice-Clerk, 1113. The pursuer had adopted this system at the end of his lease in order to be able to make a large claim against the landlord.

The pursuer argued—He had broken no stipulation in the lease. He was obliged by it to consume the straw annually and apply it yearly to the lands. It was not reasonable to hold that the period of consumption and period of application were concurrent. The more reasonable view was that the first period preceded the second, the period of consumption extending from Martinmas to Martinmas, and the period of application from June to June. If the pursuer had found it convenient to change his system of management, that was not the affair of the landlord, provided he did not contravene the conditions of his lease, and it was not proved he had done so. The suggestion that the pursuer's change of system had been prompted by the desire to make a large claim against the defender was unwarranted by the evidence.

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At advising—