Scottish Court of Session Decisions

Donald M'Intyre, teacher at Loehmaddy, Inver nesshire, having made application to the factor for Sir John Powlett Orde and Captain Orde, life renter and fiar respectively of the estate of North

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Uist, on which estate the schoolhouse of Lochmaddy is situated, for leave to build at the end of the schoolhouse, the factor on 30th September 1864 wrote to him this letter—“Mr D.M'Intyre, Lochmaddy. Corry, by Broadford, 30 Septr. 1854. Dear Sir,—I have written to Mr Macdonald saying that you have permission to build at the end of the school-house, and I have asked him to see Boyd and ascertain whether he will agree, without a formal warning, to give up part of his lot to you. If he does not consent, I cannot do anything in that matter until Whitsunday.—I am, Dear sir, yours faithfully, A. R. M'Kinnon.”

Thereafter, in the year 1865, Mr M'Intyre erected on the ground designated in this letter a house of three apartments with a small attic room and thatched roof. In this house he thereafter lived till his death in 1876. From 1868 to that year his sister Mary, and from 1874 his sister Catherine, occupied the house along with him. Shortly after his death in 1876 Captain (now Sir John Orde) gave the sisters Mary and Catherine M'Intyre notice to remove, when they declined to do so except on the footing that he should take the house from them at a valuation. This he refused to do, on the ground that the house was not theirs, and that they and their late brother had only precarious possession of it, terminable at his pleasure. He offered them, however, though admitting no legal liability, a sum of £10. This being refused, he in 1877 obtained a decree of removing against them in absence, and in the end of February 1878 they were removed from possession.

Mr M'Intyre left a deed of settlement, which, after appointing his sisters his executors and universal legataries, contained this clause—“And whereas I erected a dwelling-house at Lochmaddy with the sanction of the then factor, Mr M'Kinnon, Corry, to which it may be objected that I have not a strictly legal title, and that I am anxious to make some provision for my two helpless sisters, one of whom is a cripple and unable to earn her bread, in view of my death, which is now evidently at hand, I implore and beseech our benevolent proprietor, Sir John Powlett Orde, Bart., of whose kindness I have already had experience, to allow my said sisters to remain in that house, and not to disturb them in the possession thereof.” The expression of doubt contained in this clause was averred in this action to be due to the fact that Sir John's solicitor who acted for Mr M'Intyre in the execution of his settlement had suggested its insertion therein.

In April 1881 Mary and Catherine M'Intyre raised this action against Sir John Orde, concluding for £100 as the value of the house at the time of the ejection from it. They averred that the letter above quoted was, and was accepted by Mr M'Intyre as, a permission to build a dwelling house for himself and his sisters; that the house built was a substantial house of stone and lime of the dimensions already stated; that the defender and his factor frequently saw the operations connected with building it, and after its completion expressed their satisfaction with it, and “were well aware that no one of such limited means as the said Donald M'Intyre would be at the expense of permanent erections of the character above described except on the footing of having the rights of a proprietor therein.”

They also made the following averment as to the custom of the district:—“In North Uist, and similar districts in the West and North Highlands and Islands of Scotland, it is unusual for large landed proprietors to grant formal dispositions of small pieces of land for building purposes. By the custom and practice in these districts, and in particular by the custom and practice on North Uist estate, at the time the letter was written, when a proprietor gave leave to a person to build on laud belongiug to him, that implied a grant of the land on which the cottage or building was to be erected, and buildings so erected, and the ground on which they were erected, were in use to be sold and transmitted by the persons who built and their successors as their own property. Many cottages on North Uist estate have been erected and possessed and transmitted to heirs and singular successors with no other title than permissions to build similar to that quoted above, and without any formal title, and the proprietary rights of the occupants thereto have never been called in question.” On the faith of this custom, as well as of the letter, they alleged that the house was built. They offered, should their title be thought insufficient, that their brother Samuel, Mr M'Intyre's heir-at-law, should sist himself as concurrent pursuer for any interest he might have, he being desirous that his brother's wishes should be carried out.

They pleaded—“(1) The defender having contracted and agreed with the pursuers' author to make him a grant of the ground on which to build the house in question, and having permitted him to build the same on the faith of the said contract and agreement, and afterwards having resiled from the said contract, the defender is bound to make reparation to the pursuers as concluded for. (2) Separatim—The pursuers' author having expended money in building the said house on North Uist estate in the belief induced by the defender that he would have the rights of proprietor in and to the said house and ground on which it was built; and further and separatim, the said house having been so built and money expended with the knowledge and acquiescence of the defender, the defender is in the circumstances bound to make reparation to the pursuers, as concluded for. (3) The pursuers having been ejected from the premises in question, and the said house having been taken possession of by the defender, the pursuers are entitled to recompense from the defender, as concluded for, with expenses. (4) Generally, in the whole circumstances of the case, the pursuers have an equitable claim against the defender for the value of the house in question, and are entitled to decree as concluded for, with expenses.”

The defender denied the custom alleged. With reference to the house, he averred that it really imported permission to build a byre and not a dwelling-house, and that Mr M'Intyre had gone beyond the permission granted him in erecting any dwelling-house. He also denied the averments of the pursuers as to the factor and the late proprietor having been satisfied with the house when built, and averred that the latter had with difficulty been induced to allow it to remain, and had only done so because Mr M'Intyre's possession was precarious. He also averred that the house was of very much less value than the pursuers alleged, and that it was of a temporary and unsubstantial character. He denied that either according to the custom of the district or according to the permission to build given in the letter a grant of the ground on which the house was built was implied, or that Mr M'Intyre so understood the permission granted.

He pleaded, inter alia—“(2) The statements of the pursuers are irrelevant and insufficient in law to support the conclusions of the summons. (3) The pursuers have not relevantly averred any contract for the constitution of a heritable right in favour of their brother; and further, such a contract can only be instructed by the writ or oath of the defender, or the writ of his authors. (4) The custom alleged in article 3 of the Condescendence does not exist; and, separatim, being contrary to law and unreasonable, cannot be given effect to. (5) The defender and his author never having agreed to give any recompense or compensation, but having merely allowed a precarious possession of the subjects in question, the pursuers cannot maintain the present action.”