Scottish Court of Session Decisions

This was a petition to charge the entailed estate of Seaforth with expenditure for Improvements, under the Montgomery Act, 10 Geo. III, c. 51, part of which expenditure was incurred in the erection

Page: 422↓

of wire fences and feal dykes with wires along the top. The Lord Ordinary ( Mackenzie) remitted to a man of skill, who reported that the enclosures were chiefly of plantations and ground in the course of being reclaimed, and that the work had been executed in a substantial and durable style.

As there was some doubt whether wire fences were permanent improvements under the Act, Lord Mackenzie reported the case.

The Court were of opinion, that no general rule could be laid down declaring that any particular kind of fence was an enclosure within the meaning of the statute; that each case must depend on its own circumstances; that the mode adopted in this instance was very expedient; and that the enclosure of plantations was specially contemplated by the statute, the juxtaposition of planting and enclosing running through our statutes from the earliest times. Authority was accordingly given to charge the estate.