Scottish Court of Session Decisions

This was an action brought in the sheriff court at linlithgow by william cochrane ferrier, tenant of the farm of whittockbrae, bathgate, linlithgowshire, against george readman, advocate, proprietor of said farm, in which the pursuer sought decree for the sum of £47 as damages due to him in respect of his being deprived of the use of certain grass parks on the farm, which he alleged that he had been unable to use for grazing purposes owing to their not being kept properly fenced by the landlord in terms of the lease.

The defender maintained that he was not bound under the lease to repair the fences in question.

By the lease, which was for 19 years from Martinmas 1881, the defender's predecessor let to the pursuer “All and whole the farm and lands of Whittock brae … but reserving from said lands of Whittock brae all land which at the commencement of this lease was occupied by collieries, brickworks, and roads and railways leading

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thereto … As also reserving to the proprietor power to resume from the said lands at any time such portion or portions as he may think proper, not exceeding one-tenth part thereof, for feuing, planting, or for any other purpose or use whatever … Declaring always that the proprietor shall be bound to have the ground excepted from or taken out of the lease always duly fenced, either by himself or his tenants in such ground.”

The lease also contained the following clauses—“And further, in addition to the said expenditure” (being £300 which the landlord was to expend on drainage and other improvements), “the proprietor binds and obliges himself, as at the term of Martinmas 1881, being the term of the entry under the lease, to put the houses and fences upon said lands into tenantable order, and on the houses and fences being put into said order, the tenant binds himself and his foresaids to maintain and uphold the same, and any additional buildings, fences, dykes, and roads which may be made on the lands, and to leave them at their removal from the lands in the like good condition and repair, ordinary tear and wear always excepted … and in case of their neglecting to fulfil these obligations, the proprietor and tenant shall be bound to appoint arbiters to assess the cost of putting said buildings, fences, dykes, and roads in proper condition and repair at the tenant's expense.”

The pursuer averred that part of the ground reserved under the lease was occupied by a mineral railway, on the east side of which he occupied under the lease a certain grass park, and on the west and north sides of which he occupied under the lease a certain other grass park, that the defender was bound under the lease to keep the fences of the mineral railway adjoining these parks “always duly fenced,” throughout the course of the lease, that he had failed to implement this obligation, and in particular failed to keep the railway fence of one of the parks in a fencible state during seasons 1896 and 1897, and also failed to keep the railway fence of the other park in a fencible state during season 1897, with the result that the pursuer was prevented from using the parks for grazing purposes during those seasons.

The defender pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support the prayer of the petition.”

By interlocutor dated 22nd February 1898 the Sheriff-Substitute ( Macleod) repelled the defender's first plea-in-law, and allowed both parties a proof of their averments, except as regards the damage, which was to be settled by a judicial referee.

The defender appealed to the Sheriff ( Rutherfurd), who, by interlocutor dated 22nd March 1898, recalled the Sheriff-Substitute's interlocutor, sustained the defender's first plea-in-law, and dismissed the action, with expenses, adding the following note:—

Note.—“The pursuer in this action claims damages from the defender in respect of his alleged failure to keep duly fenced a piece of ground occupied by a mineral railway excepted from the pursuer's lease of the lands of Whittock brae. In the opinion of the Sheriff the defender's obligation under the lease in question, whether as regards ground excepted at its commencement, or of which he might resume possession during its currency, was not to keep but to ‘have’ the ground duly fenced. On the other hand, the tenant's obligation, after the fences had been put into good tenantable order, is to maintain and uphold them in the like condition, ordinary tear and wear excepted. It is not matter of dispute that the ground occupied by the mineral railway was duly fenced at the date of the pursuer's entry to the subjects, and that being so, the Sheriff thinks that it was incumbent on him to maintain and uphold the fences adjoining the railway, and that the defender's first plea-in-law ought to be sustained.”

The pursuers appealed, and argued—The expression “to have always” duly fenced, meant that the landlord was to keep these fences in repair throughout the lease, not merely to put them in repair at the beginning of it. The clause with regard to the fences of “said lands” only referred to the farm fences proper, not including the fences of the excepted portions. The fences of what was excepted were in a different position from the farm fences proper. The Sheriff had failed to give effect to this distinction, and he had also ignored the word “always” in the clause regarding the fences of the excepted portions. The result of the defender's interpretation of the lease would be to impose a most unjust burden on the agricultural tenant of upholding fences with which he had really nothing to do, and this would be especially the case in the event of the landlord reserving ground for feuing.

Argued for the defender—The tenant was bound to keep the fences of the excepted portions of the lands in repair himself, the landlord being only bound to “have” them in repair at the beginning of the lease. The word “always” in the clause as to the fences of what was excepted, meant in the case of every piece of ground which was excepted or taken out of the lease. The obligation on the tenant to keep the fences in repair was perfectly general, and it in terms contemplated the case of additional fences being made during the lease. This could only refer to fences of land taken out of the lease under the reservation clause. The fences of excepted ground were just as much farm fences as any others.