Scottish Court of Session Decisions

This is not a case to which the legal rule applies inædificatum solo cedit solo. There were no buildings or houses erected to which the maxim properly applies, nor were these wire fences otherwise affixed to the ground than in a temporary way, to serve the tenant's purposes in the management of the sheep stock. I cannot read the authorities relied on in the argument for the landlord as having any just application to a case like the present. The case of Thomson v. Oliphant, in 1822, had regard to houses built on the farm by the tenant, and not to fences; and the valuable note attached to the case in the new edition shews that the distinction between houses and fences was in the view of the Court. The decision is stated in the Faculty Report to have been carried by a majority of the Judges altering the interlocutor of the Lord Ordinary. He had found the tenant entitled to remove at his option even houses built by him unless paid their value by the landlord, and therefore the note of the Lord Justice-Clerk's opinion, who was in the majority, is the more important. “ Andrew's case,” in 1811, he said, “could not apply to buildings,” but “if a tenant choose to intersect the farm with fences, he must either remove them or put them into good condition.” The case of Andrews had regard to fences voluntarily erected by the tenant, and cannot be held to have been overruled by this case of Thomson. But were this more doubtful than it seems to me, the principle which ruled the case of Thomson is not applicable to wire fences of the description with which we have alone to deal, and erected in the circumstances established by the proof.

The terms of the leases, then, under which the farm was possessed, must be the ground on which the claim of the landlord is to be supported if it is tenable. Fairly construed, however, the leases do not support the claim. The tenant had been in possession of this farm for upwards of thirty years. Whether he had a written title prior to 1857 does not clearly appear. In that year a lease was entered into between him and his landlord to continue for nine years from and after Whitsunday 1857, and by its terms the tenant “accepts the fences on the farm, whether dykes, ditches or hedges (except the fences round the plantations) as in fencible condition, and binds himself to keep them in thorough repair, and to leave them in that condition at his removal.” These fences did not consist of anything else than dykes, ditches or hedges. But in 1861 or 1862, when there was still four or five years of the lease to run, wire fences were erected at the tenant's cost, and without communication with the landlord. On the termination of this first lease another was entered into in 1866, to take effect on the termination of the nine years, and to continue during the tenant's lifetime, but not longer than fifteen years; and in this new lease a clause in precisely the same terms in reference to the fences is inserted without any notice being taken of the wire fences which had meanwhile been erected by the tenant. It appears to me that this clause can be held to apply exclusively to those original fences which were on the farm in 1857, and that the obligation of the tenant solely applied to them. I cannot think that the tenant's, obligation in the new lease, expressed in the very same words, can be extended to embrace fences of a different description and character altogether. The just inference from the silence of the lease as to these wire fences is, that the property of them was left with the tenant. Otherwise the clause in the lease and the relative obligation ought to have been differently expressed, so as to embrace wire fences, and to place them on the same footing with the old fences on the farm.

There is, however, another clause on which much stress was laid in the argument for the landlord. It occurs in both leases. It relates to new sub-division fences, the burden of construction of which is laid upon the tenant; but then it is provided—and this is the key to the true meaning of the clause—that “no such sub-division fences shall be constructed until the lines of them are approved of by the proprietor or his chamberlain.” This plainly had reference to sub-division fences of a permanent character, and having in view the permanent sub-division of the farm in a similar way to that effected by the old fences already existing. It has no application to wire fences of the description here in question, and erected for the purpose of the kind of management of sheep stock which the tenant had in view. These wire fences were put up by the tenant in the lines and on the places which he thought most suitable, and it was entirely under his own control and in his option whether to leave them where originally placed or from time to time to shift them to some other locality. The proprietor or his chamberlain did not require to give their consent to their erection; they were never asked to do so; and could not moreover have interfered with what the tenant thought it for his interest to do in his lawful occupancy and right to possess this sheep farm under his lease.

On the whole, I am of opinion that the appeal should be dismissed, and the interlocutor of the Sheriff affirmed.

Lord Benholme—My Lords, I arrive at the same result. This wire fence did not come in place of any previous fence; it did not supersede any fence already on the farm. Had that been the case, my opinion would have been influenced by it, because I do not think that a tenant is entitled to allow the fences on a farm to fall into disrepair, and then by erecting a wire fence, which he can remove, so denude the farm of all its fences. But that is not the case here: it is clear that this wire fence did not come in place of any existing fence. What the

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