Scottish Court of Session Decisions

By the “Improvement of Land Act 1864” (27 and 28 Vict. c. 114), it is enacted that any landowner desirous of borrowing or advancing money under that Act for the improvement of his land shall make application to the Enclosure Commissioners to sanction the proposed improvements, in such manner and form and stating such particulars as the Commissioners shall from time to time direct. Sections 78 to 89 inclusive relate to the case where any landowner “shall be desirous of subscribing for any shares or stock in the capital, whether original or additional, of a company having power to construct a railway or navigable canal,” and empower and enjoin the Commissioners to make all necessary inquiries, and, if satisfied that such railway or canal will effect a permanent increase of the yearly value of the lands exceeding the yearly amount proposed to be charged thereon, to grant provisional orders, and thereafter absolute orders, to the effect of constituting the price of such shares a real burden or charge on the lands by way of rent-charge.

On 28th October 1865 the petitioner, Mr Farquharson of Invercauld, presented an application to the Enclosure Commissioners, in virtue of the said Act, for their sanction to the improvement of his estates in Perthshire and Aberdeenshire. The petitioner proposed to invest £10,000 in the stock of the Aboyne and Braemar Railway Company, which passed for a considerable distance through his lands, and to charge the subscription price on the rents of the estate.

By section 18 of the said Act it is enacted that in case any person having any estate in, or charge or security on, the land to be improved, shall signify his dissent from the application, the Commissioners shall not sanction the improvements until authorised, in the case of lands in Scotland, by the Court of Session to do so; nor shall they sanction the same in any case where the landowner shall be the father of the person entitled either at law or in equity to any estate in such land, and such person shall be an infant or minor, unless or until authorised by the Court as aforesaid.

The application set forth that the three nearest heirs of entail were the petitioner's three younger brothers, and that the petitioner was not the father of the person or persons entitled either at law or in equity to any estate in the lands to be improved, or any part thereof, such person being an infant or minor.

After the application was presented—namely, in November 1865—a son was born to the petitioner, who is now the nearest heir of entail. He therefore now applied to the Court to authorise the Commissioners to proceed upon his said application, notwithstanding the circumstance that the petitioner is the father of a person entitled to an estate in the land to be improved under the application to the Enclosure Commissioners.

The Court appointed intimation of the petition and service upon the infant and on the petitioner, as his administrator-in-law. This having been done, the petitioner stated in a minute that as his interest might be adverse to that of the infant he craved the Court to appoint a curator ad litem

Mr James Webster, S.S.C., was appointed curator; and after some inquiry being made under a remit to Lord Mure, who made a report in favour of granting the prayer of the petition, it was today granted.