Scottish Court of Session Decisions

By lease dated April 1857 Duncan M'Iver Campbell of Asknish let to Captain John H. Murray, R.N., the farm of Carricks, Argyleshire, for a term of nineteen years from Whitsunday 1857. The farm was both arable and pasture, and it was also “contracted that the said John Haliburton Murray is during the term of this lease to have the exclusive right to preserve the game, and the

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exclusive right to shoot over the said lands.” It was further provided that “should the tenant build any dwelling-house or offices for his accommodation on the said lands, the same shall be taken up from him at the expiry of his tenure at their then value, not exceeding £200 sterling, which valuation, within the limits of the said sum, when ascertained by parties mutually appointed, the proprietor binds himself and his foresaids to repay to the said John Haliburton Murray at his removal.” During the lease Captain Murray built a stone and lime cottage containing a kitchen and bedroom, and subsequently he erected a wooden apartment against the gable of this cottage and connected with it by a covered passage. This wooden structure contained no fireplace, and was used for the reception of summer visitors and for sporting purposes. Valuators, to whom the Sheriff-Substitute subsequently remitted the case, were of opinion that “the wooden erection attached to the stone and lime building does not add to its value as a farmer's residence, owing to the perishable material it is constructed with, the expense of upholding it, and the want of fireplaces, rendering it uninhabitable in winter.” At the end of the lease the landlord admitted liability for the stone cottage under the above-quoted provision, but declined to pay anything for the wooden erection, and in consequence this action was raised. The Sheriff-Substitute ( Home) found the landlord liable. He added this note—

“ Note.—It is provided for by the lease between the parties that the petitioner should be at liberty to build a house and office on the lands which he leased from the respondent, and that the respondent should be bound to take any house or office he should build off his hands at a price not exceeding £200. The petitioner built a cottage of stone and lime, and added afterwards a wooden chalet. The respondent is willing to pay for the stone and lime building but not for the wooden one, as not being the sort of house contemplated by the lease or suited to the climate, and a remit was asked to a man of skill to examine the building and to report.

The Sheriff-Substitute does not however see his way to do this. The respondent pretty much admits his liability in his letter of 26th January 1876. The lease says in very broad terms ‘any house’ which the petitioner might build was to be taken off his hands, and the price to be paid by the respondent does not appear to the Sheriff—Substitute to be that of any very solid or permanent structure unless of a very small size. It may be true that the wooden chalet may be of very little use; in that case the valuators will naturally value it at very little. There is no dispute that a certain house has been built in terms of the lease which will have to be valued; it may even be that the valuators may hold that the rest of the building has no value, but if it does add to the value of the building at all, it seems to the Sheriff-Substitute that the respondent is bound to pay for it; of course in estimating this the valuators will take into account its suitability as a dwelling-house in climate, and as a residence upon the farm.“…

The Sheriff ( Forbes Irvine) adhered, and added this note—

“ Note.—… As regards the buildings the expression in the lease ‘any dwelling-house or offices for the accommodation of the said lands’ is wide and comprehensive. There is no stipulation, such as is often found in similar contracts, that the houses shall be built of stone and lime or of other specified materials. This being so, and no decision of the Courts having fixed the legal meaning of the term dwelling-house, recourse must be had to the ordinary use of the word, which according to the recognised authorities means a place of residence or abode framed or built for shelter or protection, of any size and of any materials, such as wood, brick, or stone.

In the present case it is not unimportant to observe that the lease gives to the tenant the right of shooting on the lands, and a class of buildings may there be appropriate which might scarcely fall within the class of ‘meliorations’ under an agricultural holding pure and simple. Cases may no doubt arise of buildings so extravagant in cost or so unsuitable in character as to be outside the bounds even of a description so general as that given in the lease; but these cases must be judged by their own circumstances, and in the present instance any question of extravagant cost seems excluded by the moderate limit specified as the utmost value for which the landlord is to be liable.” …

The landlord appealed, and argued—This was primarily a sheep farm, and for the purposes of a sheep farmer this wooden building was useless—the landlord therefore ought not to be compelled to pay for what he never would have thought of erecting for himself.

Argued for the respondent—This was not merely a lease of the grazings; it also included the shootings; and the building in dispute plainly was of use for purposes of sport, and therefore to the landlord, who might let it to a new tenant. Indeed, he seemed to contemplate doing so. It was thus equitable that he should pay for it, and it certainly was within the terms of the lease.

At advising—