Scottish Court of Session Decisions

A person who at the date of the passing of the Act was a crofter within the meaning of the Act, died before the Commissioners' determination, finding that the parish in which his holding was situated, was a crofting parish, had been confirmed by the Secretary for Scotland in terms of the first part of section 19. In an action by the landlord to remove his heir, who was “in possession and occupation” of the holding—held that the defender was a “crofter” in the sense of the latter part of section 19, and of section 34, and could only be removed for a breach of one of the conditions enumerated in section 1, which the landlord did not allege. The Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), which was passed on 25th June 1886, provides by section 1 that “A crofter shall not be removed from the holding of which he is tenant except in consequence of the breach of one or more of the conditions following (in this Act referred to as statutory conditions).” The section then proceeds to specify eight conditions which it is unnecessary for the purposes of this case to enumerate. Section 19 enacts—“The Crofters Commission after due inquiry shall ascertain what parishes or islands or districts forming aggregates of parishes within the counties of Argyll, Inverness, Ross and Cromarty, Sutherland, Caithness, Orkney and Shetland, are crofting parishes, or aggregates of crofting parishes, and shall determine that this Act shall apply to such parishes. Such determination shall be reported to the Secretary for Scotland in one or more reports, and may be confirmed by him with or without modification. From and after the date of such confirmation this Act shall apply to the parishes included in the determination.… Within the parishes to which this Act is determined to apply as aforesaid, this Act shall apply to every crofter who is the tenant of a holding at the passing of this Act, and to his heirs and legatees, in the same manner as if the tenancy were a lease.” & … Section 34—“In this Act ‘crofter’ means any person who at the passing of this Act is tenant of a holding from year to year, who resides on his holding, the annual rent of which does not exceed £30 in money, and which is situated in a crofting parish, and the successors of such person in the holding, being his heirs or legatees. ‘Crofting parish’ means a parish in which there are at the commencement of this Act or have been within eighty years prior thereto, holdings consisting of arable land held with a right of pasturage in common with others, and in which there still are tenants of holdings from year to year, who reside on their holdings, the annual rent of which respectively does not exceed £30 in money at the commencement of this Act.” Hugh Campbell, who was tenant and occupant of a house and croft at Penmore, in the united parish of Kilninian and Kilmore, Mull, for the year from Whitsunday 1886 to Whitsunday 1887, died on the 14th of September 1886. This action was raised in November 1886 by his landlord to remove his deceased brother's widow and her eldest son Colin Campbell, who was the nearest and lawful heir of his deceased uncle, from the house and croft which they had possessed since his death. The ground of removing was that their right, if any, to occupy the house and croft either in their own right, or as representatives of the deceased, expired at Whitsunday 1887. Decree in absence was pronounced on 1st December 1886. On 6th May 1887 the defenders were reponed. The parties lodged reclaiming petitions, in which were contained their respective contentions.

The pursuer's contention was that at the death of the defenders' ancestor Hugh Campbell on 14th September 1886, the parish of Kilninian and Kilmore had not been declared a crofting parish under the Act. Intimation that it had, dated 22nd October 1886, did not reach the Sheriff-Clerk at Tobermory till 24th October 1886. That Hugh Campbell having died before the determination of the Commissioners, confirmed by the Scottish Secretary, that the parish in which the croft in question was situated was a crofting parish, the right of any of the defenders to succeed was not open to him at his ancestor's death under the clause of the Act relied on; and that the tenancy was a yearly tenancy, and the right to occupy expired at Whitsunday 1887, at which date the right of the heir also expired, the heir having no higher or better right than his ancestor.

The defenders maintained that the Crofters Holdings Act of 1886 was passed, and became law on 25th June 1886, and at that date the deceased Hugh Campbell was tenant of his holding. The parishes of Kilninian and Kilmore (within which area lay his holding) were determined by the Commissioners to be crofting parishes.

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Hugh Campbell having been tenant of the holding in question at the passing of the Crofters Act, therefore the defender Colin Campbell was entitled to succeed him as tenant and in the occupancy of the holding as in a lease in terms of the Crofters Holdings (Scotland) Act, sections 1, 19, and 34, though the determination of the Crofters Commission was not confirmed by the Secretary for Scotland till the 18th of October 1886. He could not be removed except for one or more of the causes enumerated in sec. 1, which did not include the one stated as the ground of the present action of removing.

The Sheriff-Substitute ( Maclachlan) on 19th May 1887 pronounced this interlocutor—“Finds that the defender Colin Campbell is heir to the deceased Hugh Campbell, who died in the month of September last, and as such is entitled to succeed to him in the dwelling-house and croft on the pursuer's estate of Penmore, of which the said Hugh Campbell was tenant: Finds that the said Colin Campbell cannot be removed on the grounds stated in the petition, therefore dismisses the action,” &c.

On appeal the Sheriff ( Forbes Irvine) on 13th July 1887 recalled this interlocutor, and decerned in terms of the conclusions of the summons.

The defenders appealed, and argued—Three months before Hugh Campbell's death the Crofters Holdings Act of 1886 passed into law, and became applicable to the parish in which his croft was. He was therefore at the passing of the Act a crofter in the sense of section 34 of the Act, being a tenant of a holding from year to year at a rent of £30 in a crofting parish. Section 19 made the Act apply to him and his heirs in the same manner as if the tenancy were a lease. It was admitted that the present defender Colin Campbell was his heir. Colin was therefore tenant of a croft, and could not be removed except for one of the eight causes enumerated in section 1. The cause of removal here was not one of these. It was absurd to argue that the application of the Act was conditional on the confirmation of the Commissioners' determination by the Secretary of State. All that the Commissioners did was to determine whether the parish fulfilled the conditions of the Act or not. Their ultimate decision, as well as the confirmation of the Secretary of State, drew back to the date of the passing of the Act. Indeed the language of the 34th section showed that this was the true interpretation, for it defined “crofting parish” as a parish in which there were holdings of arable land, held with a right of pasturage in common with others from year to year at an annual rent of £30 at the commencement of this Act. [ Lord Rutherfurd Clark—I think that possibly the clause as to the confirmation may be an executorial one merely.]

The pursuer replied—It was clear that under section 19 the Act was only to apply to the parishes included in the determination of the Commissioners from and after the date of confirmation by the Secretary of State. It was admitted that this confirmation was not obtained till a month after Hugh Campbell's death. He therefore had no right whatever under the Act, and so could transmit none to Colin Campbell. The confirmation could not operate retro. Colin's tenancy, then, was the same as Hugh's. It was a yearly one, and expired at Whitsunday 1887.

At advising—