Scottish Court of Session Decisions

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Cite as: [1869] SLR 7_23, [1869] ScotLR 7_23

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

7 SLR 23

Dawson

v.

Watson.

Subject_1Tenant and Occupant — Shootings — Lands and Heritages — 31 and 32 Vict., c. 48.
Facts:

Held that shootings, unaccompanied by a lease of lands or houses, are not lands and heritages within the meaning of the Act 31 and 32 Vict., c. 48, and therefore do not afford a qualification for the franchise.

Headnote:

The Sheriff stated the following special case:— “At a Registration Court for the county of Haddington, held by me at Haddington, on the 28th day of September 1869, under and in virtue of the Act of Parliament 31 and 32 Vict., c. 48, intituled ‘The Representation of the People (Scotland) Act, 1868,’ and the other statutes therein recited, Ebenezer Dawson, currier, Dalkeith, claimed to be enrolled on the register of voters for the said county, as tenant and occupant of the shootings over the estate of Gilston, in the parish of Pal a and Soutra. It was proved that the claimant had been since August 1867, and now is, the sole tenant of the shootings over the said estate, but that he is not the tenant or occupant of any house on the said estate, or of any part of the said estate itself other than said shootings: That the said shootings are entered in the valuation roll of the county for the year ending Whitsunday 1870 at a rental of £20 per annum: That the agricultural tenant of the said estate is Charles Cossar, farmer there, and that he is enrolled as a voter on the rolls of the said county as tenant and occupant of the farm and lands of Gilston. William Watson, writer in Haddington, a voter on the rolls, objected to the said claim, on the ground that shootings are not lands and heritages within the meaning of the Act 31 and 32 Vict., c. 48.

I rejected the claim; whereupon the said claimant required from me a special case for the Court of Appeal; and in compliance therewith I have granted this case. The question of law for the decision of the Court of Appeal is, Whether shootings, when unaccompanied with a lease of land or houses, afford a qualification under the said Act?”

Mr R. V. Campbell, who appeared in support of the appeal, contended that shootings were embraced under the terms ‘lands and heritages’ in the Registration Act. In the Valuation Act it was distinctly laid down that shootings should be understood to be included in the expression lands and heritages, and the Valuation Act must be read as one with the Reform Act of 1868. But, even supposing he had not the Valuation Act to found upon, he submitted that, according to a reasonable construction of the words, lands and heritages should include shootings, and that it was as legitimate for a proprietor to lease his land as shootings as it was for him to grant a lease giving any party the privilege to take out minerals. There was this peculiarity, that shootings were not protected against singular successors; but that was only a statutory privilege given to other leases. The lease of shootings was as truly a lease giving the tenant the occupation of the land as was any other lease, and very often the return from shooting grounds was more valuable than the return from grazing lands. In support of this view, he quoted the case of Crawford v. Stewart, in which the Second Division decided that shootings were to be understood as lands and heritages in the sense of the Poor Law Act.

Judgment:

Lord Ardmillan—The question there came to this, that the tenant of a lodge was to be assessed on the added value of the shootings.

Mr Campbell said that decision showed that assessment was to be paid on the shootings pari passu with the other subjects; and if their Lordships decided that shootings did not give a qualification except where there was a lodge, a great many people would be disfranchised.

Lord Ardmillan—Can you give us a case in which possession of shootings, without any building, has been held as giving a qualification.

Mr Campbell—The Poor Law case decides that shootings are to be assessed as lands and heritages.

Lord Ardmillan—There was a lodge in connection with those shootings. It may be of no consequence, but you are refusing to answer the question.

Mr Muirhead was afterwards heard in support of the decision. He said it had been repeatedly decided under the Act of 1832 that shootings could not be understood to be lands and heritages, and could not qualify for the franchise. In one of the cases which came before the Court the claim was admitted, in consideration that it was a house on which he was claiming. The heritage on which he claimed had value attached to it in the right of killing game, which was not itself lands and heritages. In another case it was held that the right of killing game was not a heritable subject; that it was merely a pertinent to the property; that it was only a privilege or right competent to the owner of the land; and that it could be exercised by no other person than the owner except as an incorporal right delegated by him. He denied that the Valuation Act was imported into the new Reform Act, and contended that the qualifying clause, though its terms were not identical, must be read as synonymous with the qualifying clause of the Act of 1832.

Mr Campbell having been heard in reply,

Lord Ardmillan said this was a case of some nicety. According to his view of the law, the judgment of the Sheriff was right. The qualification, which must be accompanied by actual personal occupancy, was “tenancy of lands and heritages,” and he did not think that the word shootings in the Valuation Act was of itself sufficient to import into the Reform Act of 1868 shootings, apart from lands or houses or other heritages, as a separate ground of qualification. It was quite settled that the rental of an estate was to be taken as inclusive, and not exclusive, of the shootings, and that whether the shootings were let or held by the proprietor. But a lease of game was not protected against singular successors. But in this case the qualification must rest upon this foundation, that the party was tenant and occupant of the lands and heritages, and he did not think that he was tenant and occupant if he had nothing but the privilege of shooting. If he had a lodge, of however small dimensions, with the privilege of shooting attached, it would be quite competent for him to augment the value of his tenancy by the rent which he paid for his shooting; but if he possessed merely the right of shooting, he did not think that that, taken alone, would support a qualification. The privilege of shooting,—apart altogether from its being exercised by the proprietor,—the communicated privilege of shooting was like the privilege of walking in a garden, of drinking at a fountain, of bathing in a stream, of using a boat upon a lake, of gathering mushrooms, of trout-fishing, of golf-playing, and many

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other things that might he suggested. They were privileges of use of a particular kind, but they were none of them either the proprietorship or exclusive possession of the laud. The proprietorship of the land it certainly was not; the proprietorship of the land for any other purpose except firing guns it was not either. The mere privilege of discharging a fowling-piece for killing hares and rabbits was not a right to a heritable subject on which a party could stand, if he had no other heritable subject apart from that.

Lord Ormidale and Lord Benholme concurred.

The Sheriff's judgment was accordingly affirmed.

Counsel:

Agent for Appellant— A. Kirk Mackie, S.S.C.

Agents for .Respondent— Tods, Murray, & Jameson, W.S.
1869