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Cite as: [1870] SLR 7_226, [1870] ScotLR 7_226

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Tuesday, January 11 1870.

7 SLR 226

Gatherer

v.

Cumming's Executors

Subject_1Landlord and Tenant — Lease — Barn — Custom — Thrashing-Mill.
Facts:

Held that an outgoing tenant under a nineteen years’ lease expiring at a Whitsunday term was not by law entitled to retain his thrashing-mill in one of the barns in order to thrash the crop of the year, and that he had failed to prove the existence of such right by the general custom of the district. But observed that he might be allowed to stack his crops on the ground for a reasonable period till a favourable opportunity of selling them.

Headnote:

In 1846 the pursuer became tenant under a nineteen years’ lease of the farms of Easter and Wester Muirton, of which the late Sir William Gordon Cumming was proprietor; and as there was no thrashing-mill on either of the farms he erected a large thrashing-mill in connection with one of the barns. At Whitsunday 1866, being the term of expiry of the lease, the pursuer maintained that by the custom of the county, or at least of the county of Moray, he was not bound to remove his thrashing-mill, but was entitled to continue his occupancy of the barns and thrashing-mill-house attached for the purpose of harvesting and thrashing the growing corn crop of the year. The agents for the incoming tenant and the proprietor's factor requested the pursuer to remove his thrashing-mill and various other articles, but he refused to do so; and ultimately, on 10th August 1866, the proprietor's agents wrote to the pursuer, stating that if he did not remove the mill by Tuesday the 14th of that month, the proprietor would, in virtue of his powers under the tenant's letter of removal, and the custom of the district, cause it to be removed, and placed in a convenient portion of the steading, in order that the new tenant might put in a mill for himself. The pursuer's letter of removal was as follows:— “ Elgin, 2d April 1866. Sir, I am to remove from the farm and lands of Muirton and Paddockdale at Whitsunday next 1866 as to the houses, grass, and pasture lands, and land intended for fallow and green crop, and at the separation of the crop of the year 1866 from the ground as to the land in grain crop. I am, your obedient servant, (signed) Geo. Gatherer.” As the pursuer still persisted in his refusal to remove the mill, and it was necessary for the purposes of the incoming tenant that he should have the mill-house as well as the barns, with a view to storing and thrashing the grain which he would require in the autumn and winter, Sir Alexander employed a sheriff-officer, assisted by skilled mill-wrights, to remove the mill. This they did on 23d August 1866, with all due care, and placed it in a shed on the farm, where it remained, and from which the pursuer had all along opportunity of removing it. The pursuer asserted that the value of his mill was ¦41, 12s. 6d.; and this sum be now claimed, and ¦30 as being the expenses he had incurred in consequence of having to remove his crop to another place and thrash it there. The defenders denied it was the custom of the country, or
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of Morayshire, to let the outgoing tenant have the use of the barn for harvesting and thrashing the way-going crop. A proof was led; and on 9th July 1869 the Lord Ordinary ( Barcaple) pronounced an interlocutor in which he found (1) that the pursuer had failed to prove the existence of the usage he alleged; (2) that the landlord was entitled to remove the mill as he had done; and (3) that the pursuer had not proved that he had applied to the landlord for the use of the farm-yard to stack his way-going crop, or for the use of the barn for thrashing thatch for his stocks and proofing his corn, or that the landlord had refused these accommodations.

The pursuer reclaimed.

Dean of Faculty and Keir for him.

Solicitor-General and Balfour in answer.

At advising—

Judgment:

Lord President—The term of the pursuer's removal was Whitsunday 1866; and on 2d April preceding this he granted a letter of removal in the following terms—( reads). This letter made no change in the term of ish—it remained, as in the lease, a Whitsunday ish. The outgoing tenant is entitled to a limited possession for a limited purpose, not for any definite time, but till he is able to separate the growing crops from the soil; and the moment that the crop is reaped and carried away this last remnant of a right disappears. The tenant, therefore, has no right to any use of the buildings. This, I think, is settled law in spite of the respectable authority of Mr Hunter in his Law of Landlord and Tenant to the contrary. It has been settled decisively in the case of ‘ M. Ewen v. Paterson, and in other cases here and in the House of Lords.

But still the outgoing tenant, though he has no right by law to the possession of any of the buildings, may yet have by established and recognised custom a right of this kind. This right would, to judge from the correspondence of the parties, justify a demand (1) to have the thrashing-mill retained on the farm till the outgoing tenant has got all his corn thrashed, and (2) to have the use of the barn and stackyard till he had got all his corn thrashed by his own thrashing-machine. Now a custom, to amount to the force of law, must be a general and recognised custom. It must occur in most cases. But so far is this from being the ease that, even particularly in Morayshire, the growing crop is purchased along with the thrashing-machine by the incoming tenant. The general case that occurs is, where there is no hostility between outgoing and incoming tenant, and irrespective of their legal rights, they accommodate one another. But what the pursuer asserts is, that he is entitled by general custom to retain the use of the barn for his thrashing-machine and thrashing purposes till it may be the June or May of the following year. This on the face of it seems absurd; and I do not think it is in the least borne out by evidence.

Then there is another demand made by the pursuer, viz., that he was entitled to stack his corps on the ground till he had a favourable opportunity of sale. I think if an outgoing tenant made such a demand for a limited period on reasonable grounds he would be entitled to what he asked. But the claim made here is not of that kind; it seems to have been only a correspondence with the defender's agents, in which, as is not uncommon, the parties seem only to have succeeded in misunderstanding one another. I think the Lord Ordinary is right on both grounds; and I am therefore for adhering to his interlocutor.

Lord Deas was absent.

Lord Ardmillan—The tenant is entitled to the use of the farm for a limited period, viz., to reap his growing crop; and I further think he is entitled to the use of the machines necessary therefor, as subordinate to this right. But what the pursuer avers is, that by almost universally established custom in Morayshire he is entitled to a use of the barn to keep Iris thrashing-machine in. I can only say that I think he has not only not established this alleged general custom, but that the evidence seems to me to bear out precisely the reverse. The result of the evidence seems to me to be that he is entitled to the use of the stackyard, or of ground to stack his crop on. It has been said in the course of the argument that the incoming tenant might appoint to the outgoing tenant a site in a distant and out of the way field to stack his crop in. But we have no reason to suppose that he would. There is nothing in the evidence to justify such a hypothesis. And even if it did take place, the utmost that the outgoing tenant would suffer, would be the time and trouble of carriage of the crop to that place. But what the pursuer asserts here is that he was entitled not to this, which I think he is entitled to, but to a right to deprive the incoming tenant of the use of his barn in order that he might keep his thrashing-mill in it and thrash his corn there. And he seeks damages for the denial of this right, not from the succeeding tenant, but from the landlord. Now this is not a reasonable mode of arguing at all. And I do not think that, either in law or in custom, is there anything to justify the pursuer in his demand. I therefore agree with your Lordship in thinking we should adhere to the Lord Ordinary's interlocutor.

Lord Kinloch—The Lord Ordinary has decided the case on the footing of its involving two separate points; and I think he has done so rightly, because, even if the tenant were right in everything else, he might not be entitled to retain the thrashing-mill on the farm merely that be might have the opportunity of thrashing his corn with his own thrashing machine. 1 think the Lord Ordinary is right in holding that he was not entitled to this alleged privilege. The thrashing mill was simply one of the moveable implements of the farm. It is because it was so that the tenant had right to remove it at all; and I think he was bound to remove it at the same time with the other implements. There has been no usage proved to support the retention claimed.

On the other point disposed of, I think the Lord Ordinary is also right. The right claimed by the outgoing tenant to occupy the stackyard and barns is alleged by him to have rested on usage. But if so, the customary right did not require to be inserted in the incoming tenant's lease; and the landlord cannot be claimed against because he did not so insert it. The outgoing tenant was as much entitled to vindicate the right, if it existed, against the incoming tenant, as if it was expressly mentioned in the latter's lease. The pursuer, accordingly, went against the incoming tenant; and when the latter, as is averred, refused the accommodation asked, the pursuer did not call

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on the landlord to vindicate his alleged right. Nor in truth did the pursuer do so himself. On the contrary, he made a quiet, and I think a very wise, arrangement with a neighbouring farmer, by which he obtained permission to stack and thrash his corn on the adjoining farm. I am of opinion, with the Lord Ordinary, that the pursuer cannot now insist in any claim of damages against the landlord for want of the accommodation said to have been due to him at the time. Most certainly he was not entitled to claim the whole of what he demanded; and of which I do not see that he ever abated a jot, or would take less than the whole; and whatever reasonable facilities he might have fairly asked for stacking and disposing of his crop, I think the want of these cannot be visited on the landlord, from whom such facilities were not asked, and by whom they were not refused.

I am of opinion, with your Lordships, that the Lord Ordinary's interlocutor should be affirmed.

Counsel:

Agents for Pursuer— Stuart & Cheyne, W.S.

Agents for Defenders— Gibson-Craig, Dalziel & Brodies, W.S.
1870