Scottish Court of Session Decisions

This was a petition by James Gordon Oswald, Esq. of Scotstoun, for authority to uplift and apply money received from the North British Railway Company and the Clyde Navigation Trustees, in compensation for a portion of the entailed estate of Scotstoun compulsorily taken by them. The case was reported to the First Division by the Lord Ordinary, and the circumstances appear

Page: 623↓

from the following note, which his Lordship appended to his interlocutor.

“ Note.—The petitioner is heir of entail in possession of the entailed estate of Scotstoun, situated in the county of Renfrew, on the north bank of the Clyde, near Partick, one of the suburbs of Glasgow. A considerable part of the estate has been taken compulsorily by the North British Railway Company and the Clyde Navigation Trustees for the purposes of their respective works; and the compensation money, which amounts to £19,765, 12s. 6d., has been deposited in bank, in terms of the Lands Clauses Consolidation Act, 1845. The petitioner now desires to uplift £19,000 of the consigned money in order to pay for the estate of Aigas, in Inverness-shire, which he has purchased conditionally on the transaction being sanctioned by the Court, with the view of entailing it in the same way and on the same heirs as Scotstoun.

By interlocutor dated 20th February 1875, I remitted to Mr R. B. Ranken, W.S., to inquire into the facts and to report, and to Mr W. Grant, factor to the Earl of Seafield, to inspect the lands of Aigas, and to report as to the value of the same, and the eligibility thereof as an addition to the entailed estate of Scotstoun, and to report; and reports have now been received from both these gentlemen. The purchase appears to be in itself an eligible one in many respects. The estate is reported to be worth £19,194, and it evidently possesses many advantages as a country residence, which the remaining portions of Scotstoun do not possess. Mr Ranken, however, has very properly brought under notice several points which require consideration before the transaction can be approved of. These are so fully explained in his report that I shall merely state them with the addition of the views which have occurred to me regarding each.

I.— Is the purchase of land to be entailed situated at a great distance from the original estate of Scotstoun the most expedient mode of applying the consigned money?

The statute does not require that the lands purchased with consigned money in order to be entailed shall be contiguous to the original estate, and I think that the position of Scotstoun—the great alteration which is yearly taking place in its character—its unsuitability for the residence of the proprietor—and the difficulty, or rather the impossibility, of acquiring on reasonable terms land in the vicinity—all show that if land is to be purchased with the fund in question it must be at a distance from Scotstoun. I do not think that the money can be applied with advantage to any of the other purposes to which such money may under the provisions of the statute be applied, except perhaps in repayment of improvement expenditure as noticed by Mr Ranken in his report. But as I understand that such application would not nearly exhaust the consigned money, it will probably be more expedient to apply the money, or the greater part of it, in the purchase of land.

On the whole, therefore, I am inclined to think that if the estate of Aigas shall be held to be in other respects a suitable one, its remoteness from Scotstoun should not be regarded as an objection to the proposed purchase, and that part of the consigned money may be properly applied thereto.

II.— As to the eligibility of Aigas as an investment of the consigned money.

Several points arise here for consideration:—

1.— Wood and Houses.

The estate is valued at £19,194, but in it are included the following:—

Timber,	£3000
Mansion house,	660
Other houses,	750

It was decided in the case of the Duke of Hamilton, referred to by Mr Ranken in his report, that consigned money is not to be applied in paying the price of lands to be entailed in so far as that price contained the value of minerals, houses, and wood. The reporter is of opinion, and I concur with him, that the value of the mansion house (£660) may fairly be allowed as part of the price; but as regards the other houses (£750), the petitioner, if the purchase shall otherwise be sanctioned, must pay that sum out of his own pocket. And in like manner the value of the timber (£3000) must also be paid for out of his own funds. These two sums, which amount together to £3750, when deducted from £19,194, the value of the property, leave a balance of £15,444 as the extent to which the consigned money might be applied in payment of the price of £19,000, and the difference between these sums (£3556) the petitioner, by minute, No 23 of process, states his willingness to advance out of his own funds. His counsel, however, stated at the bar that notwithstanding that minute he desires to be heard upon the point, and particularly with reference to the question whether the value of the timber, in so far as ornamental (which is estimated by Mr Grant at about £400 or £500, should not be allowed out of the consigned fund. My opinion, as I have already stated, is that no part of the £3556 should be allowed to be taken out of that fund.

2.— Shootings and Fishings.

The value of the estate, as reported on by Mr Grant, includes £4000 as the value of the shootings and fishings. Mr Ranken is inclined to think that this sum may be allowed as part of the price to be paid out of the consigned fund. I confess that I entertain considerable doubts on the point. I think that in many respects the value of shootings (the fishings are here of small importance) must be regarded as precarious; and that if any part of the value is to be allowed in this case the sum should be considerably reduced. I am not aware that the question has ever been raised in any similar case; and as it is a novel one it is desirable that the opinion of the Court should authoritatively be expressed upon it.

At the request of the petitioner, I have reported the case in this form instead of by a verbal report, as being a more convenient form for obtaining the views of the Court on the new and important points which have been raised.”

Authorities— Boyd v. Boyd, March 2, 1870, 8 Macph. 637; The Duke of Hamilton, petitioner, June 12, 1858, 20 D. 1134.