Scottish Court of Session Decisions

In 1796 the late Sir William Forbes, in order to form the village of New Pitsligo, held out certain inducements to intending feuars, and embodied them in a general feu-contract. Inter alia. he undertook—(1) to give each feuar in the village at the time he acquired his feu, patches of moor ground to improve, rent free for the first nineteen years, and thereafter for nineteen years or the lifetime of the feuar, at a rent to be fixed by valuators; and (2) to give each feuar “patches of arable or improved land at an adequate rent, with access thereto.” This general feu-contract was referred to and embodied in a particular feu-charter, acquired in 1812 by Andrew Brown, who accordingly obtained lots of moorland and arable ground, and held them down to the date of his death in 1858. George Brown, his son, succeeded him, and entered to all that his father had held, in possession of which the landlord, Lord Clinton, as administrator-at-law of his son, offered to allow him to remain on certain terms and conditions, which Brown refused. Lord Clinton raised a process of removing in the Sheriff-Court, and obtained decree, which Brown sought to suspend, but the suspension was sisted in order to allow Lord Clinton to bring this action of declarator of his right.

The Lord Ordinary pronounced the following interlocutor:—

“12 th May 1874.—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process—

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Finds, 1st, That the defender has not, in respect either of the titles founded on by him to the feu in the village of New Pitsligo, granted to the late Andrew Brown, mason in New Pitsligo, by Sir William Forbes in 1812, or of the contract dated the 1st of September 1796, entered into between Sir William Forbes and certain parties, as feuars, or intended feuars, in the said village, any right of property in any part of the estate of New Pitsligo other than the said feu: Finds, 2d, That the pursuer, as administrator-at-law for his son, the Honourable Charles John Stuart Forbes Trefusis, has the sole and exclusive right of property in the said estate of New Pitsligo, excepting the portions of ground forming parts thereof which have been given off in feu: Finds, 3d, That the defender has failed to establish that he possesses the portions of land on that part of the said estate called Turlundie, or on that part of the estate called Fraser's Farm, presently possessed by him, under any right either permanent or for a term of years, or under any other right or title than that of tenant from year to year, and that his tenancy of the said subjects has expired: Therefore finds and declares in terms of the first and second declaratory conclusions of the summons: But finds, 4th, That, in the event of the defender being removed from the portion of land presently possessed by him on Fraser's Farm, he will be entitled to demand that he shall be put in possession, in lieu thereof, of another portion of arable or improved land on the said estate, ‘at an adequate rent, with access thereto,’ in terms of the obligation to that effect undertaken by Sir William Forbes in the feu-contract of 1796; and to that extent and effect assoilzies the defender from the third declaratory conclusion of the summons, and decerns; and in the removing repels the defences, and decerns and ordains the defender to flit and remove from the whole of the said portions of land in terms of the conclusions to that effect; reserving to the defender, in the event of his being removed from the said lot of land on Fraser's farm, to enforce against the pursuer, as administrator-at-law for his son, in any competent process, his right to be put in possession of a lot of arable land, in terms of the obligation to that effect undertaken by Sir William Forbes in the feu-contract of 1796, as declared in the 4th of the above findings; and to the pursuer his defences as accords: Finds the pursuer entitled to expenses, subject to modification, of which appoints an account to be given in, and remits the same when lodged to the Auditor to tax and report.

Note.—With reference to the grounds in law on which the Lord Ordinary has proceeded in pronouncing the prefixed interlocutor, he has little to add to the observations in the note to his interlocutor of the 18th of December 1872 in the suspension process. He is still of opinion, for the reasons there explained, that the portions of moorland and arable land of which, under the original contract of 1796, the respective feuars were to be put in possession, were by the provisions of that contract placed upon a different footing.

(1) The patches of moor-ground were given in lease with a view to the improvement of the district at first for a definite period of nineteen years, and rent free, because during that first period they could not be expected to yield much return, and thereafter for a second nineteen years, or for the lifetime of the feuar, as such feuar might incline. Now, in the present case, according to the evidence of the defender, his father got the patches of moorland called Turlundy after the expiry of the first period on a liferent lease, and as that came to an end at his death in 1858, and no written title to the land has been produced, the defender must, it is thought, be held to have since then possessed it as tenant from year to year, and is now therefore no longer entitled to retain possession. For the defender has, in the opinion of the Lord Ordinary, failed to prove that after his father's death the terms upon which these moorland lots had been held were changed, and that they were then added to the arable land and permanently attached to the feu, as he contends the arable land is and has all along been. This, according to the defender's own evidence, was done at an adjustment of the various lots which took place in 1858; but there is not, it is thought, any sufficient corroboration of the defender's evidence in this respect. He was not present at any of the meetings of the committee who adjusted these matters with the ground-officer, and although present at the meeting when the committee was appointed, he appears to have no very distinct recollection of what then took place, and remembers nothing of its having been there stated, as has been proved by several even of his own witnesses, that the allotments to be then made were to be temporary for five, or in some instances ten, years at most. There was, moreover, no alteration then made in the boundaries of the moorland lots in question, and the belief or impression of the defender, to the effect that they were given over to him as an addition to and on the same terms as the arable lot, cannot, in the opinion of the Lord Ordinary, in the absence of all written evidence, be held to have placed them under any different tenure from that under which they were originally leased.

(2) As regards the arable land on Fraser's farm, the evidence tends, in the opinion of the Lord Ordinary, to confirm the views expressed in his note on the suspension case, to the effect that the arable lots were not to be permanently attached to any particular feu, and that there was no obligation undertaken by the feu-contract to give the feuars possession permanently, or for any lengthened period, of any particular lot of that kind of land. The general evidence as to the manner in which the arable lots were dealt with goes to show that there were changes from time to time made as to the possession of them under arrangements between the feuars and the factor or ground-officer; and there is also written evidence that a considerable portion of the arable lots were at times held under separate leases. This was more particularly the case with regard to Fraser's farm, the missive of which, for a 19 years' lease from 1817 to 1836 was signed by the defender's father. As regards the lots of arable land upon some of the other portions of the estate, there are also missives of lease of a later date. But there is none of a later date relative to Fraser's farm; and as the defender's right appears to the Lord Ordinary to be in its nature one of tenancy, and he has not been able to show that there was any written renewal of the lease granted to his father after 1836, the possession which he and his father have since then had of this lot must, it is conceived, be held to have been that of tenant from year to year.

(3) But while such is the view which the

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Lord Ordinary has taken of the defender's right to insist upon retaining permanent possession of the arable land in question, he has come to the conclusion that there was an obligation undertaken by Sir William Forbes under the feu-contract of 1796, and which is binding on his representatives, to give such feuar the use of a lot of arable land along with his feu. That was distinctly held out in the provisions of the contract as an inducement to get people to take feus, and it is in evidence that with few exceptions the feuars have all along availed themselves of the right or privilege thus conferred on them. The defender's father must therefore, it is thought, be held to have contracted on the faith of this undertaking, and the feu-right bears expressly to be held under that among other privileges. In these circumstances, it appears to the Lord Ordinary that when the superior finds it necessary, under the arrangement made by him for the management of his estate, to remove a feuar from any particular lot, he is bound, in respect of the obligation undertaken by the feu-contract, to give the feuar so removed the use of another piece of arable land at an adequate rent, and that if he does not do so he is liable to an action under the contract to enforce that obligation. The Lord Ordinary has therefore assoilzied the defender from the third declaratory conclusion of the summons in so far as it relates to the arable land, as by it the pursuer seeks to have it declared that he is not under any such obligation.

(4) It was contended on the part of the defender that he was entitled to hold possession of the arable land in question until another lot in an equally convenient situation was assigned to him. The Lord Ordinary has, however, not been able to see his way to the adoption of this plea. It appears from the statements on the Record that the main reason why the pursuer seeks to have the defender removed is that he declines to occupy the arable land under the same regulations as those under which some of the other feuars held their lots. But no evidence has been led to show that these regulations either were or were not of a description that the defender ought to have agreed to. It may be, however, that they were in themselves reasonable, and such as the defender was not fairly entitled to object to, and that the pursuer may not be able, under the present estate arrangements, to give the defender the use of another lot of arable land, with a proper access in a convenient locality, and in that view the defender's remedy may resolve substantially into a claim of damages for breach of contract, which cannot, it is thought, be enforced under the present action, The Lord Ordinary has therefore repelled the defences in the removing, as the defender has not, he conceives, any title to insist upon retaining possession of any portion of the land in question. But he has qualified the decerniture with a reservation which will keep open all right the defender may have to bring an action under the contract to enforce the obligation thereby undertaken relative to the arable land.”

The pursuer reclaimed, and pleaded—“(1) On a sound construction of the said contract, dated 1st September 1796, it does not impose on the proprietor of New Pitsligo any obligation to allot lots of land to the feuars in the village except for the periods therein mentioned, and does not confer on the feuars any right of property in any such lots, or any right to possess them except for such periods. (2) On a sound construction of the said contract, it imposes no obligation on the proprietor to allot arable lots of land to the feuars of the village, or at least it does not impose on him any obligation to give the feuars more than a yearly tenancy of such lots, and it does not confer on the feuars any right to any such lots, or at least any higher right than that of yearly tenants. (3) The defender and his predecessor in said feu having had possession of said lots for greatly more than the periods specified in the said contract, the defender cannot maintain his right thereto, or his right to continue possession thereof, in virtue of the said contract. (4) The defender having no right of property in said subjects, and no title to possess or continue to possess the same, decree of declarator and removing falls to be pronounced in terms of the conclusions of the summons.”

Argued for him—The defender's only written title was the feu-contract of 1796, and the only rights defined therein were the feu-rights and the right to the moor ground; the right to the arable ground was not defined, and was so indefinite that it did not import obligation. If there was any obligation in any sense at all, its letter and spirit were both fulfilled in giving the feuars arable ground until their moorland was improved. The presumption was, that if no term of endurance was mentioned for their occupancy, it was only for one year, though that might be extended by the equitable power of the Court.

Authorities—Stair, ii. 9. 15, 16; Ersk. ii. 6,24; Redpath, M. 15,916; Clark v. Lamond, Jan. 27, 1816, Fac. Coll; Hunter, i. 456.

The defender pleaded—“(1) The complainer, in virtue of his titles and of the said feu-contract of 1796, and of the possession which has followed thereon, has good and undoubted right to possess the several lots of ground in question as pertinents of his feu, upon payment of an adequate rent therefor. (2) In any view, the pursuer is not entitled to remove the defender from the said lots of ground without assigning to him other lots of equal convenience. (3) The defender having a good title to maintain his possession of the said lots of ground, and the pursuer not being entitled to remove him therefrom, the defender should be assoilzied from the conclusions of the present action.”

Argued for him—The question turned on the construction of the feu-contract of 1796. If no term of endurance was specified, perpetuity must be presumed.

At advising—