Scottish Court of Session Decisions

The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), sec. 35 (1), enacts——“In this Act, unless the context otherwise requires, … ‘holding’ means any piece of land held, by a tenant, which is either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral, or in whole or in part cultivated as a market garden, and which is not let to the tenant during his continuance in any office, appointment, or employment held under the landlord.”

The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), sec. 26 (3), enacts—“A person shall not be held an existing yearly tenant or a qualified leaseholder under this Act in respect of—(f) any land that is not a holding within the meaning of the Agricultural Holdings (Scotland Act 1908.”

Thomas Yool, Kirkhill, near Elgin, appellant, being dissatisfied with a decision of the Scottish Land Court in the matter of an application by William Shepherd, Carding-Mill, Miltonduff, Elgin, applicant and respondent, to the Land Court to fix an equitable rent for certain subjects and to fix the period of renewal of his tenancy thereof, requested the Land Court to state a Case for the opinion of the Court.

The Case stated, inter alia—“1. William Shepherd, along with Alexander Lawson Fraser, entered into a lease with William Stuart, of Miltonduff, then proprietor of the subjects dealt with in the after-mentioned application to the Land Court, under which they became tenants of the said subjects for the space of ten years from and after the term of Whitsunday 1892 as regards the houses, grass, and pasture land, and land intended for green crop, and the separation of the crop of that year from the ground as regards the land under grain crop, at a cumulo yearly rent of £19, 5s. [The subjects let were thus described in the lease—‘All and whole the buildings (with water-wheel, shaft, and spur-wheel) of the carding-mill at Miltonduff, as presently occupied by Alexander Macdonald, with the croft of land and houses attached thereto, extending to nine acres and nine poles or thereby of arable land, and three roods and fourteen poles or thereby of pasture, conform to plan prepared by Peter MacBey, land surveyor, Elgin, in the year Eighteen hundred and sixty-six.] Thomas Yool, respondent in said application, became proprietor by purchase of the estate of Miltonduff, including said subjects, from William Stuart's trustees before the passing of the Small Landholders (Scotland) Act 1911.

2. When the lease expired the tenants continued to occupy under tacit relocation, but Alexander Lawson Fraser retired from the occupancy some years ago, and the applicant continued as sole occupant.

3. On 29th April 1912 the said William Shepherd presented an application to the Land Court to fix an equitable rent for the subjects described in said lease, subsequently amended by the Court by adding a conclusion to fix the period of renewal of his tenancy thereof. The respondent therein, Thomas Yool, pleaded, inter alia, that the application was incompetent,… (b) because the subjects were not a holding as defined by the Small Landholders Act 1911.…

6. It was admitted by joint-minute of admissions that the mill presently existing on the land in question was originally a carding-mill, spinning-mill, weaving-mill, and waulkmill, and that no part of it was

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then used as a dwelling-house; that these buildings are now solely used as a carding-mill, spinning-mill, and woollen-mill; that the said mill was built or restored and adapted for the above purposes by William Skene, who was tenant of the land at the time, and who had various similar mills in different parts of the country.

7. It was further admitted by the said joint—minute that when respondent purchased the lands of Miltonduff, of which the subjects in question form a part, the whole of the buildings on said subjects were the property of the trustees of the late William Stuart, from whom the respondent purchased the same, and were included in the sale and conveyance to him and are now his property; that when the applicant and the said Alexander Lawson Fraser became tenants of the subjects they paid nothing for the buildings either to the then proprietor or to the outgoing tenant, and that the outgoing tenant made no claim to such buildings.

8. It was further admitted by the said joint-minute that during the whole period of the existence of the applicant's lease the looms and working plant other than the water-wheel and shafting which belonged to the landlord have been provided by the tenant.

9. It was further admitted by the said joint-minute that on one or two occasions the tenant of the subjects had sub-let the mill separate from the croft, and on these occasions the sub-tenant has lived in part of the mill, but the croft and mill have never been let as separate subjects by the landlord.

10. It was further admitted by the said minute that the proportion of the cumulo rent paid by the applicant for the subjects might fairly be held to have been £10, 5s. for the mill and £9 for the land and dwelling-house.

11. In an earlier lease granted by the Honourable George Skene Duff of Miltonduff, then proprietor of the estate, to James Walker, of these subjects for nineteen years from Whitsunday 1871 at a similar rent of £19, 5s. sterling, subject to the general regulations and conditions of let of the farms, crofts, and possessions on the estate of Miltonduff, the subjects are described as ‘all and whole the carding-mill of Miltonduff and land and others attached, forming the mill croft, in the parish of Elgin and county of Moray.

12. Neither party tendered or adduced at the hearing any evidence except the two leases above referred to and the said joint-minute. The statements in the following article (13) are, so far as relating to the working and the equipment of the mill and its relation to the holding, the result of observation by the Court at inspection of the subjects.

“13. This holding extends to nearly 10 acres, of which about 9 acres are arable land and 3 roods are pasture. The buildings comprise a dwelling-house, steading, and the mill. The said mill consists of a single building, containing one large room and a small store on ground floor and a loft above. It is worked by the tenant and his family. The looms and working plant substantially consist of one power loom, one handloom, and a set of two carding machines in the large room on the ground floor, and one spinning-jenny in the loft. The water power is used for driving these machines except the handloom. The industry carried on is mainly the weaving of blankets, but tweeds are also manufactured. It is similar in character to the home industries, such as weaving and spinning, which are commonly carried on by the smaller landholders in many parts of Scotland. Without some auxiliary or subsidiary occupation a holding of this size would not yield a livelihood to the tenant and his family. The carrying on of this industry does not interfere with the proper cultivation and management by the tenant and his family of this holding, which is well farmed and stocked. The mill occupies a very small area of the holding. If the mill and holding were separated, the mill would lose most in letting value. The holding is situated in a district entirely rural, occupied by farms and small holdings. The Court was satisfied that this industry is an auxiliary or subsidiary occupation of the tenant, and that, taken as a whole, the subjects are principally agricultural in character.”

On 5th April 1913 the Land Court pronounced the following order:— Edinburgh, 5th April 1913.—The Land Court having resumed consideration of this application, repel the objections taken for the respondent to the competency of the application: Find that the applicant is a statutory small tenant in and of the holding described in the application, and that no reasonable ground of objection to the applicant as tenant has been stated: Therefore find that he is entitled, in virtue of the 32nd section of the Act of 1911, to a renewal of his tenancy and to have an equitable rent fixed; and having considered all the circumstances of the case, holding, and district, fix and determine the period of renewal at two years, and the equitable annual rent payable by the applieant at fourteen pounds sterling, each to run from the term of Whitsunday Nineteen hundred and twelve: Find no expenses due to or by either party.

“N. J. D. KENNEDY.

ALEX. DEWAR.

E. E. MORRISON.”

Note.—“Both parties agreed that the whole subjects, including the building used as a carding, spinning, and woollen mill, should be held and dealt with as one subject. The applicant contended that the use by him of this building did not take the holding out of the Act. The respondent contended that it did, as in his view the croft and dwelling-house and steading were merely pertinents or accessories of this mill. In the circumstances, particularly in view of the facts that this mill was originally built or restored and adapted for the above purposes, not by the landlord but by a former tenant, in order to carry on a home industry, and that it has been for many years, and was at the date when the Act of 1911 came into operation, so used and carried on by the present applicant, and that the

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whole looms and working plant, other than the water wheel and shafting, have been provided by the applicant, we are of opinion that it is a pertinent of the holding.

The dwelling-house and steading are old and in bad repair, and the rent has been fixed after taking their condition into account.

“To allow the proprietor an opportunity of executing substantial repairs on the dwelling-house and steading the period of renewal is fixed for two years only.”

The question of law for the opinion of the Court was—“Whether on the facts stated the Land Court was entitled to hold that the subjects in question were not excluded from the provisions of the Small Landholders (Scotland) Act 1911 by reason of the existence and use of the said mill which forms part of the said subjects?”

Argued for the appellant—The subjects did not fall within the definition of “holding” in the Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), sec. 35 (1), which was adopted in the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), section 26 (3). The mill was not a mere appanage or pertinent of the croft, but the most important part of the subjects let. Reference was made to the following authorities— Mackintosh v. Lord Lovat, December 18, 1886, 14 R. 282, 24 S.L.R. 202; Taylor v. Earl of Moray, January 23, 1892, 19 R. 399, 29 S.L.R. 336; Marquis of Bread-albane v. Orr, July 3, 1896, 4 S.L.T. 75; Gilmour v. Peterson, February 26, 1901, 3 F. 569, 38 S.L.R. 384.

Argued for the respondent (the applicant)—The Land Court on the evidence and after inspection were entitled to find that the mill was a mere pertinent or accessory of the land. This was a finding in fact, and the Court could not interfere unless there was no evidence on which that finding could be supported.