Scottish Court of Session Decisions

In this action the Duke of Argyll sought to have it declared that the amount of sheep stock which as landlord he was bound to take over at the termination of the lease from the trustees of the deceased John M'Arthur, late tenant of the lands of Boccaird and others in the county of Argyll, ought not to exceed the “usual average stock or souming of the said farm.”

The action was raised in the following circumstances—In April 1870 the Duke of Argyll let to the late James M'Arthur the lands of Boccaird and others in Argyllshire on a nineteen years' lease at a rent of £500. The lease was made subject to the general regulations applicable to the Argyll estates.

The 14th article of these regulations provided as follows—“The tenants shall be bound to keep the lands respectively let to them under a full and sufficient stock during the currency of their respective leases, and the proprietor shall have the power of fixing the souming of sheep, black cattle, and horses to be kept by each tenant, and the outgoing tenants shall at removal, whether the lease shall have come to its natural termination or not, deliver over at valuation the sheep stock on the respective farms to the proprietor or incoming tenant, who shall be bound to receive the same; and in no case shall the number of the sheep so delivered over either exceed or be under the usual average stock or souming of the farm.”

On his entry to the farm M'Arthur took over the sheep stock at valuation from the previous tenant, and his own lease terminated at Whitsunday 1889. The farm was not re-let, and under article 14 it became incumbent on the Duke to take over the sheep stock at a valuation.

The pursuer averred that the number of sheep which he was called upon to take over was 4500 or thereby, which he alleged to be grossly in excess of the usual average stock of the farm.

The defenders pleaded that the present did not exceed an average stock.

Proof was led before the Lord Ordinary ( Kyllachy), and the facts established appear from his Lordship's opinion.

On 11th July 1889 the Lord Ordinary found “(1) that the sheep stock on the farm of Accurrach, which the defenders are, under and in terms of the lease thereof and relative articles, conditions, and estate regulations, bound as at Whitsunday 1889 to deliver over, and the pursuer to receive at valuation, ought neither to exceed nor be under the usual average stock or souming of the said farm; (2) that the usual average stock of the said farm did not exceed 3200 sheep; (3) that the sheep stock presently on the said farm, which the defenders propose to deliver over as at Whitsunday 1889 to the pursuer at valuation as aforesaid, is in excess of the usual average sheep stock of the said farm; and (4) that the pursuer is not bound to take over at valuation the excess of said sheep stock over the said 3200 head, &c.

“ Opinion.—I have given my best consideration to the proof in this case, and I have come to the conclusion that the sheep stock on the farm of Accurrach at Whitsunday 1889 was in excess of the usual average stock of the farm, and that the pursuer is justified in his demand that the stock, which he falls under the lease to take over, shall be reduced to at least 3200 head.

The question appears to me to turn mainly upon the terms of the clause in the defenders' lease (or rather in the general regulations therein incorporated), by which it is provided that ‘outgoing tenants shall, at removal, … deliver over at valuation the sheep stock on their respective farms to the proprietor or incoming tenant, who shall be bound to receive the same; and in no case shall the number of sheep so delivered over either exceed or be under the usual average stock or souming of the farm.’ There does not appear in this case to be any common pasture, so that there is no question of ‘souming’ as distinguished from the proper sheep stock of the farm.

The defenders contend that the ‘usual average stock of the farm’ means not the actual stock which has been kept upon the farm during the lease, but its proper stocking according to a proper system of management, and their contention is that it was only during the last three years of the lease that such proper system of management was followed, and that therefore the only question is, whether the sheep stock tendered to the proprietor at last Whitsunday is in excess of what the farm as managed during the last three years is capable of supporting.

The pursuer disputes this construction of the lease. He maintains that the actual stock kept on the farm during the lease is the standard to be appealed to; that that actual stock (which up to the last two years of the lease did not vary materially) prima facie represents the true carrying capacity of the farm, and that at all events the parties to the lease made their contract upon that footing. He denies the right of the tenant to alter the system of management during the last years of the lease to the effect of throwing a larger stock on the landlord's hands. And he maintains separately (1) that the new methods introduced by the tenant have not been shown to be necessary or advantageous; (2) that even assuming them to be so, they do not justify the great increase of stock complained of; and (3) that that increase of stock was especially

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objectionable, because even the average stock during the lease considerably exceeded the former stock, and was always somewhat in excess of the proper carrying capacity of the farm.

I am unable to adopt the defenders' construction of the clause in the lease. The question is not, in my opinion, what the farm is capable of carrying, or may be made to carry, by some particular system of management. The question, I think, is what—-as worked during the lease—the farm has in fact carried. That is, I think, the canon prescribed by the lease. No doubt questions more or less difficult may be figured in applying that canon in conceivable circumstances. Had, for example, the stock been increased in the middle of the lease, and been so legitimately, and had the increase been maintained and become established, it may be that the stock so increased would fall to be treated as the usual average stock, although taking the lease as a whole it was over the average. So also, if during the last years of the lease the farm was for the first time wrought in conformity with the usual and established modes of working similar farms it might be at least open to argument whether the landlord could object to take over a stock which was appropriate to such usual and established mode of working. But in my opinion it is unnecessary to consider such questions here. Taking the facts as they appear on the proof, it does not appear to me that there is in the present case any difficulty in ascertaining what was the usual average stock of this farm of Accurrach.

The facts of the case are, as I understand them, shortly these—The farm of Accurrach is situated (speaking roughly) along the road leading from Inveraray to Loch Awe, and it occupies both high ground and low ground, and carries a stock of blackfaced sheep — ewes as well as wedders. It is also suitable for the grazing of cattle. It was let to the late Mr Macarthur in 1863, when he and a partner Mr Hardie took it over from a former tenant Miss Smith. At that time the sheep stock numbered 2486 of all classes, and there were besides some 50 or 60 head of cattle, young and old. In 1870 Mr Macarthur took a new lease for nineteen years (the lease which has just expired) in his own name, and in that year his clipping list (which represents practically the stock at Whitsunday) amounted to 3196, and in the following year to 3021. This increase (as compared with 1863) was partly, it is said, due to drainage, and partly to the introduction of the system, now so common, of wintering the wedder hoggs in each year off the farm. The stock continued at much the same figure till 1887, two years before the close of the lease, the average clipping-list from 1870 to 1886 being about 3150. In 1887, however, the stock at clipping rose to 3299, in 1888 to 3535, and at Whitsunday 1889, when the lease expired and the present question arose, it had risen, including stragglers, to about 4000 or 4071.

This increase was, the defenders say, due to and justified by the facts (1) that about 1886 Mr Macarthur gave up keeping cattle; (2) that he further in 1886 introduced the system of wintering away not only his wedder hoggs but also his ewe hoggs; (3) that at the same time he further introduced the system of ‘harvesting’—that is to say, of sending away both classes of hoggs, not as usual in October but early in September. It is said, and appears to be proved, that for every 100 hoggs wintered away which were formerly wintered at home the tenant may add 50 sheep of one class or another to his general stock. It is also said, although this appears more doubtful, that for every 100 hoggs harvested, which were formerly only wintered, 25sheep of one class or another may be added to the general stock. In this way, assuming that the total number of hoggs sent away in each year was about 1000 (which seems about the figure with a total stock of 3000), and assuming also that the ewes and wedders are in equal proportions, the total gain to the carrying capacity of the farm by the wintering away of ewes, and by the harvesting of both ewes and wedders, would, according to the calculation, stand thus, 500 2; + 1000 4 = 500. That is to say, an increase of 500 sheep at clipping was no more than was appropriate to the change of system introduced with respect to the hoggs. Similarly, the defenders say that each “cattle beast” is equal to 5 sheep, and taking 50 cattle as the former stock, they hold that the abolition of the cattle added not less than 250 to the normal sheep stock, so that in all the normal sheep stock is thus brought up from say 3150 to 3900, being within 300 or thereby of the stock proposed to be delivered to the pursuer. I should perhaps add that in the last year of the lease the tenant made a further change on his former system, viz., by wintering away not only his whole hoggs, but also about 440 gimmers and dinmonts, i.e., six-quarter old ewes and wedders. This, however, the defenders did not stand upon as a change justifying an increase of stock. The fact is only important in this way, that in the last year of the lease no less than 1817 sheep of one kind or another were wintered off the farm, and only returned to it in April 1889, a month or so before the valuation.

It appears to me upon the proof to be at least donbtful whether the system of wintering away the ewes and of harvesting the whole hoggs is a system either necessary or suitable to the farm of Accurrach. Mr Macarthur knew his business, and it is significant that he did not attempt anything of the kind till the close of the lease. I think it is also open to serious doubt whether the substitution of sheep for black cattle was a good thing for the farm, or a thing which augmented its carrying capacity for sheep to the extent suggested. I further think the defenders' figures, which I have taken above, are outside figures, and that in particular the addition of 25 per cent. for ‘harvesting’ is on the evidence quite an outside figure.

But assuming all these points in the defenders' favour, it seems to me that the above narrative of the facts, and in. particular

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the above statement of the clipping figures, is conclusive against the suggestion that the stock which is now tendered to the pursuer (4200 or thereby) is on any reasonable construction of the words ‘the usual average stock’ of this farm. Difficult questions may, as I have said, be figured. In my opinion this is not one of them. A stock rising from about 3200 to 4200 at the very close of the lease, and which can only be kept on the farm by adopting a system of management different from that pursued until nearly the close of the lease, exceeds in my opinion the usual average stock of the farm, giving that expression the utmost possible latitude.

I therefore decide substantially in favour of the pursuer, fixing the stock at 3200, and finding that the pursuer is not bound to take over a larger stock.

With respect to the proportions in which the excess is to be apportioned among the different classes of sheep, it may be necessary, unless the parties agree, to make a remit to a man of skill to fix those proportions. In the meantime I only notice that there is no question of any excess in the ewe stock. The excess, if there be an excess, is admitted to lie in the class of two and three year old wedders and ewe and wedder hoggs.”

The defenders reclaimed, and argued—(1) The 14th article of the estate regulations did not apply to a lease like the present, because throughout there was a reference to “souming” which was only intelligible where there was common pasture, which was not the case in the present lease. But (2) if it should be held that the 14th article was generally applicable, then the last clause did not apply, for it related entirely to “club” farms with a common right of pastureage. The word “average” in the last clause related not to quantity of stock, but to quality, and the expression “usual average stock of the farm” meant not the actual stock which was kept upon the farm during the lease, but its stocking according to a proper system of management. In estimating the stock which the pursuer was bound to take over an average should be struck from the results of the last three years only, because it was during that period alone that the improved system introduced by the defender began to show. The mode adopted by the Lord Ordinary for ascertaining an average, by taking the totals of the clippings of the various years and dividing the result by 19, was not a fair mode of estimating the average stock of the farm, because by it the tenant derived little or no benefit from any improvements which he might have executed which improved the carrying capabilities of the farm.

Argued for the pursuer — The 14th article of the regulations applied equally to farms like the present, and to those where there was a right of common pasture, and this article was incorporated into the defenders' lease. But for it he had no claim upon the pursuer to take over any stock at the termination of the lease. The meaning of the words “usual average stock of the farm” was just the stock which during the lease the farm carried, and the mode adopted by the Lord Ordinary of ascertaining this was the only fair and reasonable method that could be suggested. To adopt the defender's contention, and reach an average from the totals of the last three years, was practically to strike the word “average” out of the contract.

At advising—