Scottish Court of Session Decisions

By lease dated 2d and 7th March 1882, James Thompson Mackenzie of Kintail and Glenmuick agreed to let to William Louis Winans “All and Whole the lands and estate of Kintail lying in the parish of Glenshiel and county of Ross, all as presently occupied and possessed by the first party (the landlord) and his tenants, and comprehending the grazing or pasture farms and lands of Morvich and Inchcroe presently in the possession of the first party, and the grazing or pasture farms and lands of Inversheil, Cluanie, and Auchnagart, as presently possessed by the heirs and representatives of the late Donald John Macrae, including the inn at Cluanie and pertinents, as also possessed by them or their sub-tenants, and generally all arable lands, grazing lands, houses, and other heritages forming parts and portions of the said estate of Kintail, and the whole shootings and fishings, including salmon and other fishings belonging to the said estate, with the sole and exclusive right and privilege to the second party (the tenant) of sporting over the said estate, and shooting and killing deer and game of every description thereon, and also the sole and exclusive right and privilege of fishing for salmon and other fishes in all the lochs and streams forming parts of the said estate, in so far as the said first party has right to the said fishings, with power to the tenant in his option either to continue to use the said farms above specified for grazing and pasture for sheep, cattle, horses, &c., as all except a portion of the arable laud is used at present, or to convert the same or any part of the same, along with the remainder of the said estate into a deer forest as he shall think proper, and that for the space or time of twenty-one years from and after the term of Whitsunday Eighteen hundred and eighty-two.” With regard to the grazing lands of Inversheil, Claunie, and Auchnagart, part of the estate, which at the time of the lease were in the possession of the representatives of the deceased Donald John Macrae under a lease between him and Mr Mackenzie which was to terminate at Whitsunday 1893, it was provided that Winans should have right to shoot deer and other game thereon from Whitsunday 1882, but should not have right to the grazings on these lands till 1893, Mr Mackenzie being bound to have these grazings completely cleared of sheep, and all buildings pertaining to the said grazing cleared of their occupants, by 12th August 1893. Mr Mackenzie undertook by the lease, however, to do his best to get Macrae's representatives to agree to cancel their lease, and in order to aid this object Mr Winans agreed in the event of its being done to let the sheep stock remain on these lands till 12th August 1882, and on the rest till 12th August 1883. At whatever term, however, the lease should be given up, Mr Mackenzie undertook as soon as possible to give Mr Winans possession of the lands, and to have them cleared in manner above explained. With regard to Iuchcroe and Morvich, which were in Mr Mackenzie's own occupation, it was provided that he should be allowed till 12th [afterwards extended to 15th] August 1882 to remove his stock off the ground, and the shepherds and other occupants from the buildings occupied in connection with this ground. Mr Mackenzie reserved power to resume lands not exceeding in all a certain extent, for the purpose of planting with trees (allowing a proportionate deduction of rent) one part of which planting should be on a portion of the slope east of Loch Duich. The rent payable by Mr Winans as tenant was £1106, 3s. 4d., until the lease expiring in 1893 should fall in, and after that £2256, or if that lease were sooner terminated the increase of rent was in that case to begin at such earlier date on which he obtained possession. He bound himself to relieve the landlord of public and parochial burdens, to exercise his right of shooting so as to leave a good breeding stock at the termination of the lease, to employ a sufficient staff of gamekeepers and watchers, to accept the fences as they stood, and to maintain them,

Page: 641↓

Negotiations for this lease had commenced between the parties in October 1881, and prior to its signature a lengthy correspondence passed between them concerning its terms and conditions. Mr Winans insisted, inter alia, that Mr Mackenzie should bind himself to clear the ground (1) of the shepherds, and (2) certain others who occupied houses or cottages on the lands of Morvich and Inchcroe, by 12th August 1882, afterwards extended to 15th of same month. As regards the shepherds, after a correspondence in which he explained that they were yearly tenants, and had not, in consequence of his having construed a letter of Mr Winans as importing that they were to be retained by him as watchers and keepers, received such notice as would entitle him to remove them at Whitsunday 1882, Mr Mackenzie agreed to remove them by Whitsunday 1883. As regards the cottars, when the lease was still in draft his agents wrote on 25th November 1881 to Mr Winans in the following terms:—“We shall be glad to receive back the draft lease approved of, or with such alterations as you may think necessary. Mr Mackenzie requests us to mention to you that there are at Lochside about half-a-dozen families, living in some small huts, with from a quarter to half an acre of potato ground, for which they pay no rent, and that he is desirous that these people, who are natives of the place, should not be removed. He says that you might find them useful if you required assistance of any kind in connection with the working of the estate. Mr Mackenzie has no desire that strangers should be permitted to come into the place; he merely wishes that the existing families, or their relatives who may succeed them, should not be removed, and he is quite satisfied to leave the matter to your discretion.” After the lease was signed Mr Winans insisted that the lease imposed an obligation on Mr Mackenzie to remove these cottars. Mr Mackenzie wrote to him offering, in consequence of the disagreement which had arisen with regard to the shepherds, to cancel the lease, but this offer was not accepted.

In September 1882 Mr Winans brought this action to have Mr Mackenzie ordained to fulfil the obligations undertaken by him in the lease, “and that by giving the pursuer immediate possession and occupation of the houses and other heritages, forming parts and portions of the estate of Kintail, in the county of Ross, to which the pursuer has right under the said lease, and more particularly by giving the pursuer immediate possession and occupation, free from the occupation or possession of the defender's late or present manager, gamekeeper, shepherds, servants, and other dependants, and all other occupants of buildings and other premises still occupied or possessed by the said manager, gamekeeper, shepherds, or others foresaid upon the farms and lands of Morvich and Inchcroe, part of the said estate of Kintail.”

In his condescendence the pursuer, after having described the subjects let to him by the lease, averred—“(Cond. 3) By the said lease it is also declared, inter alia, ‘that as regards Inchcroe and Morvich, at present in possession of the first party (the defender), he shall be allowed till the 12th of August 1882 to remove his stock off the ground, and the shepherds and other occupants from the buildings occupied in connection with this ground. The pursuer afterwards agreed to extend the period of removal from 12th to 15th August 1882. (Cond. 5) The pursuer entered to the subjects thereby let, so far as the same were available, at the term of Whitsunday last, and has incurred much expense in making them available for the purposes of the lease, but the defender has failed to remove his manager, gamekeeper, shepherds, servants, or dependants and other occupants from ( inter alia) the buildings and premises upon or in connection with the farms of Inchcroe and Morvich, and to give the pursuer full and free possession of the houses and buildings on these farms, which he was bound to have done on 12th August last in terms of the foregoing provisions of the lease, or at all events on 15th August, to which date the pursuer agreed to extend the term fixed in the lease. The subjects of which the defender has thus failed to give possession form parts of the estate of Kintail shown on the map annexed to the lease. In particular, the subjects occupied by the gamekeepers and the cottars mentioned in the answer form parts of the said estate. It is essential to the proper carrying out of the lease, and to the pursuer's beneficial occupation of the lands as a deer forest, that the said shepherds and other occupants should be removed by the defender, and the pursuer put by the defender into full and immediate possession. Some of said shepherds and other occupants reside in the very heart of the forest, where great damage is done by them and their families and their cattle in trespassing. Their cattle are pastured and they are cutting hay on ground expressly let to the pursuer. Not only is the value of the subjects to the pursuer seriously diminished during the shooting season, but if the said buildings continue to be occupied as at present it will be impossible for the pursuer to utilise much of the low ground most suitable for wintering deer. The pursuer also requires some of the said houses and buildings for the occupation of his own servants and keepers.”

He pleaded—“(1) The defender having entered into a valid contract of lease with the pursuer by the lease libelled on, is bound to fulfil his part thereof; and the defender having failed to do so the pursuer is entitled to decree of implement as concluded for, with expenses. (2) No relevant defence having been stated, the pursuer is entitled to decree.”

The defender stated (Ans. 5)—“Admitted that the pursuers entered into possession of the subjects let, so far as the same were available at the term of Whitsunday last. Denied that the pursuer has been at any expense in making the subjects available for the purposes of the lease. Quoad ultra denied, and explanation made as follows:—By the custom of the country the shepherds employed on grazings are yearly tenants of the houses occupied by them. This was well known to the pursuer, who accordingly, in the negotiations preliminary to the settling of the said lease, informed the defender that as he intended converting the subjects into a forest he would arrange to employ the resident shepherds as watchers. Believing that the pursuer would employ the shepherds as watchers, the defender did not insist on a stipulation to that effect being included in the lease, as he otherwise would have

Page: 642↓

done. After the lease was signed, and in the month of July last, the pursuer changed his mind on this matter, and settled not to employ the said shepherds. It was then out of the power of the defender, as the pursuer well knew, to put the shepherds out of their houses until Whitsunday next. That the defender had not given them notice prior to Whitsunday was entirely owing to the fact that he had been deceived by the pursuer as to his true intentions regarding the said shepherds. The defender, however, will remove all the said shepherds at Whitsunday next. He was also ready and willing to make temporary arrangements by which nearly all of the men would have been removed during the month of August last, but to these arrangements the pursuer would not agree. Further, when the defender found that the pursuer would not abide by (what the defender regarded as) his bargain to employ the shepherds as watchers, the defender offered to cancel the lease altogether, without making any claim for the year's rent then incurred, or for the serious expense and loss he had been put to in clearing the sheep off Morvich, which was in his (the defender's) own possession. This the pursuer also declined to accede to. The defender is still willing to cancel the lease. The correspondence which passed on the subject is produced and referred to. With the exception of the said shepherds (four in number) there are no servants or dependants of the defender upon the ground. The only other occupants of houses to which it is believed reference is made in the condescendence are a few cottars who live in some small cabins by the side of the high road at Loch Duich. It was not the intention of parties that the said cottars should be removed, and the lease contains no stipulation for their removal. The said cottars are not dependants or servants, or ordinary tenants of the defender. They occupy their houses and a small piece of land under a customary tenure peculiar to the Highlands. The defender has no right and has no wish to remove them from their possession, and it was never in the contemplation of parties or within the provisions of the lease that he should attempt to remove them. The land and houses held by them are not and were not at the date of the lease occupied and possessed by the defender or his tenants. The pursuer was well aware of the existence and position of the said cottars. The locality of their houses is such that they do no harm to the usefulness of the estate as a deer forest.”

He pleaded—“(1) The statements of the pursuer are irrelevant and insufficient in law to support the conclusions of the summons. (2) The defender having duly implemented the stipulations of the lease, and being ready and willing to implement such stipulations as are still incumbent on him, ought to be assoilzied. (4) The defender is under no obligation by the lease to remove the said cottars from their holdings.”

The Lord Ordinary ( Kinnear) dismissed the action.

“ Opinion.—This is an action for specific implement of the obligations said to have been undertaken by the defender to the pursuer by a lease, dated the 2d and 7th March 1882, and the summons concludes that the defender shall be decerned and ordained to implement and fulfil these obligations, ‘and that by giving the pursuer immediate possession and occupation of the houses and other heritages to which the pursuer has right under the said lease, and more particularly by giving the pursuer immediate possession and occupation, free from the occupation or possession of the defender's late or present manager, gamekeeper, shepherds, servants, and other dependants, and all other occupants of all buildings and other premises still occupied or possessed by the said manager, gamekeeper, shepherds, or others foresaid, upon the farms and lands of Morvich and Inchcroe, part of the said estate of Kintail.’ The summons has no other conclusion, and it appears from the record and from what was stated at the bar that the sole purpose of the action is to have the defender compelled summarily to remove certain shepherds and cottars who are still in the occupation of houses or cottages. By the lease founded on, which is for twenty-one years from Whitsunday 1882, the defender lets to the pursuer the lands and estate of Kintail, ‘as presently occupied and possessed by’ the defender ‘and his tenants,’ comprehending certain grazing or pasture farms specified, and generally all lands, houses, and other heritages forming parts of the said estate, as shown on a plan annexed to the lease. The tenant is empowered at his option either to continue to use the farms for grazing and pasture or to convert them with the remainder of the estate into a deer-forest; and while the entry to the subjects of lease is to be from and after Whitsunday 1882, there is a stipulation in favour of the defender, that ‘as regards Inchcroe and Morvich, at present in possession of the first party’ (the defender), ‘he shall be allowed till the 12th of August 1882 to remove his stock off the ground, and the shepherds and other occupants from the buildings occupied in connection with this ground.’ The pursuer afterwards agreed to extend the period of removal from 12th to 15th August 1882.

These being the terms of the lease, the pursuer does not allege that the defender has refused to cede possession of the lands, in so far as these were in his own occupation. On the contrary, his averment is that he is now in possession under the lease; for he says in condescendence 5 that he entered to the subjects let at Whitsunday last, and has incurred much expense in making them available for the purposes of the lease; and then he makes the averment which is the ground of action, that the defender ‘has failed to remove his manager, gamekeeper, shepherds, servants, or dependants, and other occupants from ( inter alia) the buildings and premises upon or in connection with the farms of Inchcroe and Morvich, and to give the pursuer full and free possession of the houses and buildings on these farms, which he was bound to have done on 12th August last, in terms of the foregoing provisions of the lease, or at all events on 15th August, to which date the pursuer agreed to extend the term fixed in the lease;’ and he proceeds to state two different grounds upon which he maintains that it is essential that certain shepherds and cottars should be removed by the defender, and the pursuer put by the defender into full and immediate possession. With regard to some of the houses it is said that their occupants reside in the heart of the forest, ‘where damage is done by them and their families in trespassing;’ and it is said

Page: 643↓

that ‘the pursuer also requires some of the said houses and buildings for the occupation of his servants and keepers.’

There is no statement specifying the particular houses which are thus said to be occupied contrary to the conditions of the lease. But it was admitted at the bar that the occupants whose removal is insisted in are of two classes—shepherds who were in the defender's employment before the lease, and cottars. With regard to the shepherds, the defender admits that in terms of the lease he was bound to remove them from the houses occupied by them in connection with the ground before the 15th of August 1882, but he says that they are yearly tenants, that he failed to give them notice so as to enable him to remove them before Whitsunday in consequence of a misunderstanding for which the pursuer is responsible, but that he undertakes to remove them by Whitsunday next. With regard to the cottars, he says that they are not tenants in the sense of the lease, that he has no right to remove them, and that it is not within the true intention of the lease that he should attempt to do so.

I am of opinion that this is not an appropriate or competent action for trying the questions which are raised by these averments. It may be that as against the defender the pursuer is entitled under his contract to immediate possession of the houses in dispute. But it does not follow that he can enforce that right by decree ad factum prœstandum In the recent case of Graham v. Swan and Others ( Mags, of Kirkcaldy), (July 26, 1882, 9 R. (H.L.) 91), the Lord Chancellor observes with regard to such decrees—‘In Scotland the legal and equitable jurisdictions have always been united, and the natural result of that unison is that strict legal rights ought not to be enforced without regard to the discretion which, from the nature of the subject-matter and the interests of all concerned in it, ought to be exercised by a court of equity. ‘It appears to me that there are sufficient reasons for refusing upon equitable grounds to give the decree for specific implement sought by the pursuer.

With regard to the shepherds, if there be any question whether they are entitled to continue in possession till Whitsunday, it is a question which cannot be determined in this action, to which they are not parties. But it is manifest that it would be impossible for the defender, admitting that they are yearly tenants from Whitsunday to Whitsunday, to remove them by any process of law between terms and without notice. In so far as they are concerned, therefore, the decree asked would be entirely inoperative. It may be that the defender's failure to give notice earlier is a breach of his contract with the pursuer, and if so the pursuer may have another remedy. But all that can now be done by way of specific implement is to give the notice which the defender undertakes to give, so as to ensure their removal at Whitsunday next.

The case as to the cottars is in a somewhat different position. The averment as to the peculiar tenure under which they are said to hold is not satisfactory, and if their right were to be defined in this action, the conditions of their occupation must have been stated more specifically. But the defender avers that they are not his dependants or servants or ordinary tenants; that they occupy these houses and a small piece of land under a customary tenure peculiar to the Highlands; that he has no right and no wish to remove them from their possession; that it was not within the contemplation of parties that he should do so; and that these houses are situated by the side of the high road at Loch Duich, in such a position ‘that they do no harm to the usefulness of the estate as a deer forest.’ It was further explained at the bar that they and their predecessors have possessed under no written title, but under verbal agreements that they should not be disturbed so long as they continue to perform the conditions upon which they were put in possession. In the face of these averments I am not prepared to determine in this action, to which they are not parties, that they can have no right such as the defender admits, which may be good against him, whether it be good against his successors, or against the pursuer as his tenant or no; and without so determining, it appears to me impossible to give decree in terms of the conclusions of the summons— first, because if the defender's statement is correct, that would be a decree for specific implement of an agreement with the pursuer by breach of a prior agreement with others; and secondly, because the Court will not give decree ad factum prœstandvm unless it be clear that the thing ordered to be done can be done effectually either by the defender or, failing him, by some one else at the sight of the Court. Now, it is not clear, and in my opinion it cannot be made clear, in this action, to which the cottars are not parties, either that any means to be taken by the defender for removing them would be effectual, or that it would be just and equitable to take proceedings for that purpose. I asked Mr Guthrie how the decree was to be carried out, and he admitted on the one hand that it was not enforceable otherwise than by imprisonment, and on the other that it would not be voluntarily carried into effect except by the defender taking legal proceedings for the eviction of the cottars and carrying these proceedings to a successful issue. The decree which the pursuer asks, therefore, is to compel the defender to institute against persons who are not parties to this action legal proceedings which as regards them would be harsh and unreasonable, and which the defender admits would be contrary to the good faith of the understanding between him and them. No authority was cited in support of the pursuer's demand, and in my opinion it cannot be entertained consistently with the principles on which decrees for specific implement ought to be given.

If the defender's reading of the contract as to the cottars' houses is wrong, the pursuer is not without remedy. If the defender has bound himself to give him possession of the houses in dispute and to remove the present occupants, he will be answerable in damages for his breach of contract. It may be that the pursuer has other remedies besides. But he is not, in my opinion, entitled to the remedy he seeks in this action.”

The pursuer reclaimed, and argued—Unless the defender could show that it was impossible for him to clear the ground of these cottars, the pursuer was entitled to have specific implement of the lease, which imposed on the defender a clear obligation to do so.—Stair, i. 17,16; Bell's Comm, i. 352; Balfour's Practicks ( vide Sentence and Execution); “ The Generous,” November 26,

Page: 644↓

1818, 2 Dodson's Adm. Reps. 322; The Queen v. The Great Western Railway Co., ex parte Fisher, April 23, 1853, 1 Ellis & MacArthur's Reps. 774.

The defender replied—This was not a case for specific implement ( vide Lord President's opinion in M'Arthur v. Lawson, July 19,1877, 4 R. 1134). He had always refused prior to the signature of the lease to remove the cottars, the reason being an obvious one, that he had not the power to do so. He had for that reason been careful to come under no obligation of the kind in the lease.

It was intimated at the bar that the shepherds had been removed from their houses.

At advising—