Scottish Court of Session Decisions

This was a reclaiming note against an interlocutor of the Lord Ordinary (Mackenzie), in an action at the instance of an outgoing farmer against the trustee of the estate of Mr George Dundas, younger of Dundas, for payment of the sum of about £926, for labouring and manuring one-sixth of the farm of Echline, Dalmeny, in the last year of a nineteen years' lease, in terms of the tack. Under his lease the pursuer was taken bound, inter alia, to have during the last four years of the lease one-sixth part of the lands in fallow or a drilled crop properly cleaned and manured, and that wheat should not be sown except after fallow or a drilled green crop properly manured and horse or hand harrowed; and further, it was agreed that during the last year of the lease he should be paid for labouring and manuring the fallow break, according to the valuation to be fixed by arbitration, as well as for the value of the land left in bare fallow, according to the average rent of the farm. In accordance with these agreements, the pursuer, in the autumn of 1871, had 81 acres of land as fallow break for the succeeding year, and these constituted as nearly as possible one-sixteenth of the whole farm, having regard to the necessity of not dividing the fields. He thoroughly cleaned and manured these 81 acres, and in the spring of 1872 planted therein a green crop, which was sold at his displenishing sale in the autumn of that year. The sum claimed by the pursuer was for labouring and manuring these 81 acros, constituting the fallow break. The defender had several pleas in defence, but his chief contention was that there was really and truly no fallow break on the farm during the last year of the lease, on account of the green crop sown by the pursuer in that season.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 22 d January 1874.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record and proof, Assoilzies the defender from the conclusions of the summons, and decerns: Finds the pursuer liable in expenses, of which allows an account to be given in, and remits the same, when lodged, to the Auditor to tax and to report.

Note.—The pursuer was tenant of the farm of Echline, on the estate of Dundas, under a lease for nineteen years from Martinmas 1853; and the question raised by him in the present case depends upon the construction of a clause in that lease, imposing an obligation upon the landlord at the expiry of the lease at Martinmas 1873. Before adverting specially to that clause, it is necessary to notice the obligations imposed upon the tenant with reference to cropping the farm. It is provided by the lease, as regards the cropping of the farm, that of the arable land there shall be in any one year not less than one-sixth part in summer ‘fallow or green crop, and not less than one—sixth part in grass, sown off with the first crop after summer fallow or green cross, but not sown down with wheat after beans;’ that the pursuer shall not ‘take two white crops successively from the same land without a fallow or drilled green crop intervening, except that he may take barley after wheat which has been preceeded by a summer fallow or potato or turnip crop properly dunged and horse and hand hoed,’ and which barley land must be sufficiently wrought, cleaned, and dunged; that during the last four years of the lease one-fifth of the arable land, but not necessarily the same land, shall be kept in grass, ‘sown off after fallow or green crop, beans excepted, or with barley after beans;’ and that there shall be during the last four years of the lease ‘one-sixth part of the land in fallow or a drilled crop, properly cleaned and manured, and that wheat shall not be sown except after fallow or a drilled green crop, properly manured and horse and hand-hoed.’ The pursuer also bound himself to consume upon the

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farm all the straw and fodder grown thereon, except the hay and straw of the last year's crop, which he might sell, unless the landlord or incoming tenant took it at valuation, and ‘not to carry off any dung from the lands hereby let, but to consume “the same thereon, with the exception of such as shall he made after sowing the barley and’ turnip crops of the last year of this lease,’ which is to be made over to the landlord or incoming tenant at valuation. Such being the obligations of the tenant as regards the cropping and dung of the farm, it is, on the other hand, provided by the lease, ‘that during the last year of this lease the said George Thomson, or his foresaids, shall be paid for labouring and manuring the fallow break according to the valuation to be fixed by arbitration as aforesaid, as well as for the value of the land left in bare fallow, according to the average rent of the farm.’ This is the clause upon which the pursuer founds the claim made in the present action. During the last year of the lease the pursuer had no land in fallow, but had rather more than one-sixth of the farm in drilled green crop, 16 acres being in turnips, 42 acres in potatoes, and 23 acres in beans, making in all 81 acres. The pursuer laboured these 81 acres in the usual way, for the purpose of growing thereon the said turnips, potatoes, and beans, and it is proved that he manured the land for these crops in the spring and summer of 1872 with a full quantity of the manure of the farm-yard, and also with police dung, guano, and potato manure. On leaving the farm, the pursuer sold by public roup, and received the price of the whole of these crops of turnips, potatoes, and beans, which were not good crops in consequence of the wetness of the season. In these circumstances, the pursuer, founding upon the last-mentioned clause of the lease, has raised the present action for the purpose of abtaining payment from the landlord of the sum of £926, 12s. 3 1 2d., as the amount which lie maintains to be due to him ‘for labouring and manuring the fallow break,’ being a charge of nearly £12 per acre. This sum is composed of £592, l’2s. as the value of the manure of his farm yard which he put into the land; £1,11s. 6d, paid for the measurement of that dung before it was spread on the land; £82, 13s. 8d. as the price of guano; £10, 19s. 2d. as the price and railway freight of police manure; and £238, 15s. 3 1 2d., charged by the pursuer for labouring the land, which includes all the labour specially required for each of the above-mentioned crops. The ground upon when the pursuer maintains this claim is, that the land which under the old system of farming, was ploughed and cleaned, and left to rest for a year in fallow during each shift of cropping, and was called the fallow break, is now, in consequence of furrow draining, improved implements, and increased manuring facilities, rendered capable of growing green crops with advantage to the land and profit to the farmer, except in heavy clay soils, or in wet and backward seasons, and that the term, ‘fallow break’ now includes, in the phraseology of agriculture, not only any land which may be in fallow, but also the land on which the green crops, such as turnips, potatoes, and beans, which have supplanted fallow, are grown. The defender, on the other hand, maintains that the term ‘fallow break’ includes only the land which is fallowed, and that when any land is sown with green crop it ceases to be fallow, and becomes the green crop break or division.

A very long proof has been led by the parties for the purpose of showing the technical meaning of the terms “fallow break” and “bare fallow,” which are used in the clause of the lease on which the pursuer founds. From this proof it appears to be the usual practice that an outgoing tenant, when he leaves land fallow, is paid for labouring and manuring that fallow, and pays no rent for it, and that the incoming tenant, who is to reap the benefit which the land has derived from the rest and labour and manure, pays the rent and the cost of the manure. There is no difficulty in getting an incoming tenant to undertake that customary obligation, as he reaps the benefit of it. It is also established by the proof that no case has ever occurred in which an outgoing tenant has been paid for labouring and manuring the land, from which he has taken a way-going green crop. The Lord Ordinary doubts whether any incoming tenant could be got to come under an obligation to that effect. The clause founded upon by the pursuer, if his construction of it be correct, contains an unusual, if not a startling, stipulation. But if the construction of the defender is correct, it is an ordinary and usual stipulation. This being the case, the pursuer requires to show very clearly that the only meaning of which the clause is susceptible is that for which he contends, more especially seeing, as appears from the proof, that agriculturists are very loose in their phraseology, and that it is only within the last thirty years that green crops have supplanted fallow.

The Lord Ordinary is of opinion that it is not established by the proof that the term fallow break includes not only the fallow land but also the land under green crop. The pursuer's witnesses, no doubt, say so; but the witnesses for the defender are of a different opinion, and state that as soon as the land is put under green crop it ceases to be the fallow break, and becomes green crop land.

Such being, as the Lord Ordinary thinks, the import of the proof, it becomes important to ascertain what is the true grammatical meaning of the words ‘fallow break’ and ‘fallow,’ and what is the sense in which they are used in the clause founded on by the pursuer.

“According to Dr Johnson, the adjective ‘fallow’ means—(1) ‘pale red or pale yellow; (2)’ unsowed, left to rest after the years of tillage (supposed to be so called from the colour of naked ground); ‘ploughed but not sowed; ploughed as prepared for a second aration;’ (4) ‘unploughed, uncultivated;’ and the noun ‘fallow’ means—(1) ‘ground ploughed in order to be ploughed again;’ (2) ‘ground lying at rest.’ The word ‘break,’ according to Dr Johnson, means, ‘the state of being broken,’ and, according to Dr Jamieson, it means ‘a division of land in a farm.’ Such being the meaning of these words, the word ‘fallow,’ and the term ‘fallow break’ in the clause, cannot, the Lord Ordinary thinks, according to the true or grammatical sense thereof, apply to land Which is not fallow, that is, ploughed but not sowed, but which is under green crop.

The Lord Ordinary is of opinion that not only is the true and correct meaning of the words adverse to the pursuer's claim, but that the sense in which these words are used in the lease also excludes it. In the lease there occur, as appears in the passages above given, the words ‘fallow, summer fallow,’ ‘fallow break,’ and ‘bare fallow,

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All these words, it is thought, mean one and the same state of the land, the term’ summer fallow ‘being Used because the fallow is ploughed and made chiefly in summer, the term bare fallow,’ which occurs only in the clause on which the pursuer rests his claim, being used because the land is naked, or without a crop, and the term ‘fallow break’ being used to designate the land in fallow.

Now, the words ‘fallow’ and ‘summer fallow’ are used in the lease in contradistinction to, and as something different from, a green crop, and the option is given to the pursuer either to have fallow or green crop yearly in one-sixth of the farm. In the last four years of the lease he is bound to have one-sixth part of the land in fallow or drilled green crop, and the clause founded on by him is the counterpart of that obligation. Now that clause, following upon the distinction made in the lease between fallow and green crops, and the option in regard thereto given to the pursuer as tenant, provides that the pursuer ‘shall be paid for labouring and manuring the fallow break,’ that is, as the Lord Ordinary thinks, the part of the farm which he shall leave in fallow, according to the valuation of arbiters,’ ‘as well as for the value of the land left in bare fallow, that is, left in fallow according to the average rent of the farm. The clause is divided in two parts. The cost of labouring and manuring the ‘fallow is to be paid as ascertained by arbitration, and the pursuer is to be paid for it,’ ‘as well as for,’—that is, equally with—the value of the land left in fallow, and that is to be taken at the average rent of the farm. The phraseology of this clause is no doubt loose. But the Lord Ordinary cannot find any grounds, either in the lease or in the proof, in which the term ‘fallow break’ can be held to have a different meaning in the clause from what the word ‘fallow’ has in the previous parts of the lease, or from what that term has according to its ordinary acceptation, and to include land under green crop or anything except fallow land, or on which the term ‘bare fallow’ can be held to have been used in the clause, for the purpose of distinguishing fallow from land under green crop, because the term ‘fallow break’ was used in the first part of the clause, as applying to both fallow and land under green crop.

The claim which the pursuer makes for labour includes not only the labour expended in ploughing and cleaning the land, but also that specially employed in preparing the land for the reception of his crops of turnips, potatoes, and beans, in sowing or planting these crops, in singling the turnips, and in hoeing, drilling, and furrowing up in the mode required for those crops. The sum claimed for labour is nearly £3 per acre, which, according to the pursuer's own evidence, includes only about 12s. for ploughing. The remainder, therefore, with the exception of the cost of gathering the wrack and other weeds, seems to be applicable to the special tillage required by the above-mentioned crops. Such a claim by a tenant, who has sold and got the price of the crops, appears to the Lord Ordinary to be extravagant in itself, and wholly unwarranted by the clause in the lease. The ish from the farm being at Martinmas, the outgoing tenant could alone plough and manure the fallow, as the incoming tenant had no right to do so. It is proved that with such an entry that is always done by the outgoing tenant. Accordingly, the lease stipulates for his remuneration, that he is to be paid for the labouring and manuring of the fallow break, that is, for the whole labour and manure expended by him for the incoming tenant, who gets the whole benefit thereof.

“The pursuer also claims payment not only for the whole manure made on the farm, which he put into the land for the growth of his turnips, potatoes, and beans, but also for the whole of the police manure, guano, and potato manure which he purchased specially for the benefit of those crops. Even if the clause in the lease could be interpreted as the pursuer contends, it could never, the Lord Ordinary thinks, sanction his claim for the price of the guano and potato and police manure. Further, the turnip, potato, and bean crops consumed a large portion of these manures, and also of the farm yard manure, and yet the pursuer concludes for the whole value or price thereof. Under the lease the pursuer is bound to consume on the farm the dung made thereon, and he is only entitled to be paid for such ‘as shall be made after sowing the barley and turnip crops of the last year’ of the lease, and for what he might expend in manuring the fallow break, but not for other manure left on the farm unconsumed. ( Greig, 7 Macph. 1109). These provisions show that it was not the intention of the contracting parties that he should be paid for dung consumed by his way-going green crop, but only for dung laid out in manuring the fallow land, of which the incoming tenant would reap the whole benefit. If the claim of the pursuer were warranted by the lease, he would be entitled to be paid for the whole labour and manure of his way-going green crop, which was expended by him solely for the purposes of that crop, although a very large proportion of both was exhausted thereby, and although, as he admits, he grew that crop because he believed it to be for his advantage, which, if the season of 1872 had been good, it would have been. It would require very clear and express provisions in the lease to support such an unjust claim, and yet, if the pursuer's construction of the lease is correct, that is what he is entitled to. The pursuer contended that, if not entitled to the whole cost of labour and manure, he has right to the proportion thereof not exhausted by the green crops. But the lease makes no such distinction, which, the Lord Ordinary thinks, it would have done in clear and express terms if such a claim as that now made by the pursuer had been within the contemplation of the parties. The absence of any such provision is adverse to the pursuer's claim. It is also against the pursuer's claim that he received at his entry to the farm 96 or thereby acres of land which had been in green crop immediately before his entry, without making any payment for the labour and manure expended thereon.”

At advising—