Scottish Court of Session Decisions

The pursuer reclaimed to the Second Division, and argued—The Crofters Commission had no power to determine who were and who were not cottars. The Crofters Holdings Act defined cottars. It lay with this Court to apply the Act. There was nothing in the Act to exclude the jurisdiction of the Court of Session to determine that question, and the further question of the amount of compensation. The Act provided no machinery for the valuation of cottars' improvements, and so far as known the Commissioners had never dealt with such improvements, nor drawn up rules under sec. 29 for assessing them, as has been done in the case of crofters. By sec. 31 the only permanent improvements which the Commissioners were authorised to assess were those specified in the Agricultural Holdings Act when executed by a crofter.

The respondent argued—The Legislature evidently meant that the Act should apply to crofters and cottars alike. A cottar was just an inferior kind of crofter. All permanent improvements executed by crofters and cottars could only be dealt with by the Commissioners. Sec. 31 was intended to save the rights of the Commissioners even in cases otherwise falling under the Agricultural Holdings Act. As it lay with the Commissioners under paragraph 10 of the schedule to determine what were permanent improvements, they were clearly the only tribunal contemplated by the Act for dealing with such matters in the case of crofters, and it would be absurd to hold that although crofters must be content with the Commissioners, cottars might bring their claims to the Court of Session.

At advising—

Lord Justice-Clerk—It cannot be doubted that this Act has not been very acutely framed. This may be partly accounted for by the fact that in the original draft nothing was said about cottars, and their position may have been overlooked in Committee when the new clauses dealing with them were introduced.

We have had our attention called to everything in the Act to indicate the intention of the Legislature as to cottars. The pursuer has abandoned the position of feuar but claims to be a cottar, and as such demands compensation for improvements on the ground from which he has been removed. The question before us is whether the proper and only tribunal for dealing with that matter is the Crofters Commission.

Now the Crofters Commissioners have received power to execute the Act, and instructions as to the improvements with which they are to deal. These improvements, whether executed by crofters or cottars, are, under sec. 10, to be valued under the Act at such sums as fairly represents the value of the improvement to an incoming tenant. Then the schedule appended to the Act, after giving a list of permanent improvements, says “All the improvements which in the judgment of the Crofters Commission shall add to the value of the holding to an incoming tenant.” Now, the meaning of these different passages is, I think, that the Crofters Commissioners are to value all improvements under clauses 8, 9, and 10. Undoubtedly cottars are not mentioned in section 10, and there may be some difficulty in holding that the Commissioners are to value their improvements; but I am of opinion that cottars are just to be looked upon as an inferior class of crofters. They must be in a crofting parish, but because all the privileges given to crofters are not conferred upon them they had to be separately described. The duties, however, of the Commissioners with relation to crofters are to be similarly discharged with regard to cottars.

The only other point referred to by Mr Guthrie is the provision of section 31, which he read as limiting the right of the Commissioners to deal with improvements to those falling under the Agricultural Holdings Act. I read the section exactly in the reverse way. The provisions of the Act may include improvements specified in the Agricultural Holdings Act, and yet, says section 31, the Crofters Commissioners are to have power to dispose of such improvements.

Lord Young—I am of the same opinion. Mr Orr very properly pointed out that the pursuer does not now insist in this action except under the third conclusion.

I think that the awarding of compensation for improvements under sections 8 to 10 relates to the execution of the Act, and that it was the intention of the Legislature that these improvements should be valued and compensation awarded by the Commissioners. I am not prepared to hold that the Act should be read so critically as to involve this, that while the Commissioners are the only tribunal for determining the rights of crofters to compensation, the only tribunal for dealing with cottars' rights is the Court of Session. I think the plain reading of the Act is that the Commissioners are the proper tribunal for estimating the compensation for cottars' improvements as well as for those of crofters.

Lord Rutherfurd Clark concurred.

Lord Lee—The points brought out during the discussion shew clearly that this is a case for the Crofters Commissioners. There is no exhaustive definition of permanent improvements. The schedule gives exam ples, but adds that the Crofters Commis sioners are to determine what other improvements are to be included under the term “permanent improvements.” I am therefore of opinion that the provisions of the Act are sufficient to confer upon the Crofters' Commissioners the decision of this question.

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