Scottish Court of Session Decisions

The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), section 26, enacts—“(1) For the purposes of the Landholders Acts a holding shall be deemed to include any right to pasture or grazing land held or to be held by the tenant or landholder whether alone or in common with others, and the site of any dwelling-house erected or to be erected on the holding, or held or to be held therewith, and of any office or other conveniences connected with such dwelling-house. (2) A person shall not be admissible to registration as a new holder under this Act … in respect of more than one holding, and shall not be held an existing yearly tenant… in respect thereof unless such … holdings have been worked as one holding.”

Alan Douglas Pilkington, Esq. of Sandside, Caithness, appellant, being dissatisfied with a decision of the Scottish Land Court in an application by Catherine Murray, respondent, dated 4th October 1911, to fix a fair rent, appealed by Stated Case.

The appellant acquired the estate at Whitsunday 1913 by conveyance from his father Thomas Pilkington, Esq. of Sandside, the original respondent in the application, and was sisted as a party thereto.

The schedule to the application contained a specification of the contents of the holding, as including “arable land extending (as

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agreed at the hearing) to 4.110 acres with 440 of an acre outran, and dwelling-house, byre, barn, and stable, and an interest in grazings at Dachow extending to 16 acres. The rent was stated to be £6, and ‘for grazing according to head of cattle—at present £2—making in all £8.’”

The application was made under the Crofters' Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29) to the Crofters Commission, and on the passing of the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), passed in virtue of that Act to the Scottish Land Court.

The Case stated—“3. The facts found proved or admitted were as follows, viz.—(1) At the passing of the Crofters Act 1886 the applicant's father, the now deceased George Murray, was tenant of the holding, which then consisted of a dwelling-house in Reay village, with byre, offices, and land extending to about 5 acres, situated at a little distance from the house. He also exercised the right of grazing on Dachow. His rent was £6, apart from what was paid for grazing on Dachow. In virtue of the provisions of the Crofters' Holdings (Scotland) Act 1886 the said George Murray became a crofter in respect of said holding. From Whitsunday 1890 the said rent of £6 was reduced to £5, 2s., and this rent continued until Whitsunday 1896, when £1 was added to the rent in respect of interest on the landlord's expenditure of £40 towards the cost of the erection of a new dwelling-house on the site of the former dwelling-house, which had been pulled down. The tenant arranged to pay 5 per cent. interest on £20 of the landlord's contribution, the proprietor providing the other £20 free of interest. (2) At the term of Whitsunday 1896 a holding belonging to Finlay Mackay was given up, and was divided among four crofters, including George Murray, who thus obtained in addition to the subject formerly held by him, (first) arable ground at the yearly rent of £2, 3s. 10d., and (second) a barn and stable at a rent of £1. The different items of rent as well as the interest on expenditure and the rent for Dachow grazing were all entered separately in the landlord's books and receipts granted accordingly. (3) At the term of Whitsunday 1906 the said George Murray gave up the additional arable land which he got in 1896, but retained the tenancy of his original holding and the tenancy of the barn and stable, which he continued to occupy till his death. At Whitsunday 1907 the said Catherine Murray, the respondent, succeeded her father in the tenancy and paid a rent of £5, 12s. for the original holding and £1 for the barn and stable, while she continued to rent a share of the grazing on Dachow. In the following year an abatement of 12s. was given her, making the rent for the original holding £5, while the rent for the barn and stable remained at £1. In 1911 the rent was increased by a sum of 11s. in respect of interest for expenditure by the proprietor on fencing, making the total rent payable for these subjects £6, 11s. In addition the applicant paid a rent of £1 for the grazing of one cow on Dachow grazing. She stated in evidence that the tenants had the use of the grazing by paying according to the number of horses or cows grazed, and that the rate for each cow per annum was £1. She also deponed that her stock on the grazing for the last four years had been one cow. No evidence was led by the landlord as to the conditions on which these grazing rights were held. The respondent's land steward was examined, but he gave no evidence on this point. At the date of the application the applicant accordingly held (1) the original croft and buildings at a rent of £5, 11s., (2) the barn and stable added in 1896 at a rent of £1, and (3) the grazing of one cow on Dachow, for which she paid £1 per annum. The Court found that the whole of these subjects had been worked together as one holding.…

5. On 5th June 1916 the Court issued a final order in the following terms:—‘ Edinburgh, 5th June 1916.—The Land Court having considered the application and inspected the holding, …. Find under reference to the annexed note that the present yearly rent payable for the applicant's holding described in the application is £7, 11s., including therein £1, subject to increase as after mentioned, for her right and interest in the Dachow grazings; that the applicant is satisfied with the said present rent, and therefore find and determine that the said sum of £7, 11s., subject to increase for an additional stock at the present rates so long as these remain unaltered, for Dachow grazing is the fair rent of her said holding: …”

The questions of law submitted to the Court were, inter alia—“2. On the facts stated, was there evidence upon which the Land Court could competently find that the stable and barn referred to formed part of the holding? 3. On the facts stated ( a) was there evidence upon which the Land Court could competently find that the applicant's interest in the grazing known as Dachow formed part of the holding; and ( b) if so, were the Land Court entitled to fix the rent payable therefor according to what was proved to have been the customary method of payment? 4. Was the final order of the Land Court quoad the second and third findings or either of them in excess of their jurisdiction?”

Note.—“It is not disputed that the applicant is a crofter under the Act of 1886 and now a landholder under the Act of 1911. This application was presented under the Act of 1886 before the later Act came into operation.

The application craves in the first place for the fixing of a fair rent, but the applicant is satisfied with the existing rent of her holding.…

As the applicant is satisfied with the existing rent, and the respondent did not ask that it should be altered, it is unnecessary to make the usual form of order fixing a fair rent, but for future reference, and as questions were raised, it is convenient to record the extent of the holding for which the existing rent is paid and the items of which the existing rent is made up. We are satisfied that the holding includes (1) arable land, extending to 4.110 acres; (2) 440 acre of outrun—4 1 2 acres in all—together

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with dwelling-house, byre, barn and stable and other offices; and (3) a right and interest in the Dachow grazings. The yearly rent paid for this holding (exclusive of the sum paid for her right and interest in the Dachow common grazings) for 1908, 1909, and 1910 was £6. This sum of £6 is made up of (1) £4, 12s. for the land and dwelling-house with byre and other offices, subject to an annual abatement of 12s. for damage by flooding; (2) £1 for the barn and stable originally belonging to a croft, which was subsequently divided among four tenants, including the applicant's father; and (3) £1 as interest on part of a sum of money contributed by the landlord towards improvements on the dwelling-house. In 1911 a sum of 11s. was added to the rent as interest on the cost of a fence, making £6, 11s. The annual sum included in the rent for the applicant's right and interest in Dachow common grazings being fixed according to the number of stock grazed, was £1 except in 1910, when, as she kept more stock, it was £2.

Accordingly the present yearly rent of her holding is £7, 11s, subject to increase for Dachow pasture if she should put on more stock than one cow.”

Argued for the appellant—There were no incidents of statutory tenure annexed to the barn and stable. These subjects came to the landlord in 1896 and therefore vested in him in full right of his common law powers. It was impossible to suggest that they fell under the Crofters Act unless the holding was enlarged by mutual agreement. There was, however, no evidence of this. The mere working of the holding as a unit was not enough, and the findings of the Land Court were inconsistent with the contention and supported a separate identity of the croft and a common law tenancy of the byre and stable. Under sections 11 and 12 of the Crofters' Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), a crofter could have taken steps to have them incorporated, but these sections would not have availed the present tenant, because under no interpretation of the Act could a barn and stable be treated as land. Further, the grazing rights in question were not brought before the Land Court by the application, but were only referred to in the schedule. There were no findings in the case by which the grazing could be held to be part of the holding. It was incompetent to refer to the note to the order to contradict the findings in the case.

Argued for the respondent—The evidence showed that the subjects in dispute had been treated as a croft for the past fifteen years, and the finding of the Land Court, if interpreted by reference to their note, was to that effect. The note was incorporated by the Land Court with their findings by reference, and the respondent was entitled to found on it in explanation of their order. The merits of. the question must be decided by the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) which came into operation before the Land Court decided the case, and they were accordingly bound to apply it. Applicant could also be regarded as an existing yearly tenant under that Act, and under section 26 (2) thereof the test in such cases was whether the component parts of the croft had been “worked as one holding.” The present case satisfied that test. Enlargement of a holding might take place by agreement with the landlord—Crofters' Holdings (Scotland) Act 1886, section 11—and the facts of the present case might be construed to infer such an agreement. The holding here could also competently include the common grazing—Small Landholders (Scotland) Act 1911, section 26 (1)—and as the note of the Land Court showed had been held by them to include it.

At advising—