Scottish Court of Session Decisions

This is an advocation from the Sheriff Court of Morayshire, brought by James Grant, writer in Elgin, and the other trustees of the late John Grant, distiller, Glen Grant, against the respondent, the Earl of Seafield. His Lordship's predecessor, in 1844, granted a lease of the farm of Drumbain, consisting of 241 acres of arable land and 1057 of pasture, to the Messrs Grant. The lease contained the following provision:—“The proprietor is to have power at all times to take off what ground he may see proper for the purpose of planting, the tenant being to be entitled to such deduction of rent therefor as shall be fixed by two or three persons of skill to be mutually chosen.” In the same year as the lease was entered to, the tenants addressed a letter to Lord Seafield, in which, after suggesting various improvements, they said-“The farm would be improved by a little planting, and we would afford every facility for doing it if your Lordship approve of it.” Subsequent to this letter the proprietor planted a little more than an acre of arable ground and six acres of pasture. In the letter written by Lord Seafield's factor in answer to the tenant's letter suggesting improvements, while all the other topics mentioned were touched upon, nothing was said of the suggested planting. The tenants continued in possession till 1863 and made no claim for abatement of rent on account of the ground taken off, but on the expiry of their lease they made a demand for £47, 12s. 4d., being the cumulo amount of the yearly value of the

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ground taken for the purpose of planting. This claim was made to Lord Seafield's factor, by whom the farm had been let. He suggested that it should be withdrawn as untenable, and stated that he had a counter-claim against the tenants which would compensate the sum asked. An action having been brought, Lord Seafield pleaded that he was not liable, because the planting had not been made under the reserved power of the lease, thereby raising up an obligation against him, but had been made at the request and for the convenience only of the tenants.

The Sheriff-Substitute ( Smite) assoilzied the defender.

The Sheriff ( Bell) adhered.

The pursuers advocated.

Lancaster (with him Clark) argued on the facts of the case, that the understanding of parties must be taken to be that the planting was under the lease; that it was not to be presumed that the pursuers had renounced any of their rights; and that the concurrence of the facts that there was a reservation in the lease of planting, and that planting had taken place, threw upon the defenders the onus of showing that it was not done under the lease.

Gifford and W. A. Brown, for the respondent, were not called upon.

The Court unanimously adhered to the judgment of the Sheriff, holding it to be clear as a question of the understanding of parties, that the planting had not been done under the lease, and that that was confirmed by the delay that had occurred in bringing forward the claim.