Scottish Court of Session Decisions

A lease stipulated the six-shift rotation, and payment to the tenant at expiry of the lease, for first and second years' grass. The rotation being, by consent, changed to five-shift, and nothing being said as to grass, held that the tenant was not entitled to payment for the second year's grass, the landlord being entitled to that grass free, there being under the five-shift rotation no third year's grass, as contemplated in the lease.

In this action William Taylor, sometime tenant of Floors, in the parish of Auchterless, sued the trustee of the late Garden William Duff of Hatton, for £600, 19s. 11d., alleged to be due for meliorations, and for value of way-going grain crops, and of second year's grass left on the farm.

The pursuer's lease of Floors was dated in 1847, the farm being let for 19 years from Whitsunday 1847,under the reservations and upon the conditions contained in the general regulations established by Garden Duff for the management of his lands and estates of Balquholly, Woodtoun, Oldmill, Hatton, and others, upon the 8th February 1825, so far as these regulations were not varied or departed from by the lease. The lease bound the tenant, on entering on possession of the farm, to proceed to bring the farm into a six-shift rotation of cropping, and “to have at the term of Whitsunday in each year” (after the rotation had been established), “and leave at the term of removal one-sixth part or thereby of the arable lands on the farm, in grass of the first year, sown down with the preceding grain crop after green crop; one-sixth in grass of the second year; one-sixth in grass of the third year; one-sixth in grain, broke up from three years' old grass; one-sixth in preparation for green crop or summer fallow; and one-sixth in grain, after green crop or summer fallow.” The lease also bound the tenant to “leave the last or way-going grain-crop on the farm for the use of the proprietor or his in-coming tenant, to whom the same shall belong on payment of the value thereof, as the same shall be determined by the county of Aberdeen fiars' prices of grain and straw, of the year of which it may be the crop, the quantity to be ascertained according to the then existing practice of the county, and one-half of the value to be paid when the liars are struck; and the other half at Whitsunday following;” and farther provided that the tenant should, “at the issue of this lease, be entitled to payment for first and second grass on the farm as the same shall be valued by arbiters to be mutually chosen at the term of removal, and the value thereof is thereby declared payable at Martinmas following.”

By the regulations of 1825 a seven-shift rotation was stipulated, and it was provided that “in order that strict punctuality and attention may be paid to these regulations and the mode of cropping herein prescribed during the lease, each tenant shall be bound to pay the sum of £10 sterling of yearly additional rent, over and above the rents specified in the lease, for each arable Scotch acre treated or cropped differently from the mode herein laid down during the lease, so as to have the possession in a rotation in any shape different from what is here prescribed; and which additional rent is not to be considered penal but pactional, and the tenant is hereby bound to pay the same to the heritor along with the other stipulated rent for the year or years in which any alteration or deviation shall take place, with interest and penalty in case of failure.” The tenant continued in possession until the issue of the lease in 1866. A dispute having then arisen between the parties, the tenant raised this action. The claim for meliorations was not insisted in.

The defenders stated certain counter claims, which they contended must be deducted from the sum sued for. They alleged that the tenant had, without the consent of the landlord, and several

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years before the expiry of the lease, altered the rotation from a six-shift to a five-shift. “The adoption by the pursuer of a five-shift rotation had the result of there being no third year's grass on the farm at the expiry of the pursuer's occupation. The pursuer, on his entry to the farm, got all the third year's grass upon it without any payment. The landlord, at the expiry of the lease under a six-shift rotation, would have got 40 acres of third year's grass, free of any claim by the tenant. The pursuer having left no third year's grass, the landlord got possession of the second year's in lieu thereof.” The defenders also alleged that the tenant in the last year of his lease, without any authority or consent of the landlord, but on the contrary, in the face of the landlord's refusal to consent, violated the five-shift course which he had adopted, without authority, by taking a third white crop from field No. 14 on the plan of the farm herewith produced, consisting of 12 acres 1 rood 14 poles imperial measure, equal to 9J Scotch acres, in violation of the lease and relative regulations, and of the rules of good husbandry, thereby incurring the additional rent of £10 per acre.

The pursuer, in answer, explained, that at the commencement of the lease only about 140 acres were in a state of cultivation. The pursuer commenced shortly after that to bring into cultivation large quantities of barren ground on the farm, and at the expiry of the lease upwards of 240 acres were under the plough. The lease prescribes a six-shift rotation of cropping, but shortly after the commencement of it, it was found that this shift could not be adhered to, in consequence of the quantity of barren land that was being newly brought into cultivation, and also as the new ground, which formed a large proportion of the farm, would not keep grass for three years, as required by the six-shift rotation. The pursuer accordingly applied to the proprietor, Mr Garden Duff, the granter of the lease, for permission to change the rotation to the five-shift rotation, and this the proprietor granted. The pursuer thereafter put the farm into the five-shift rotation, and adhered to this rotation during the remainder of the lease. At least there was never any deviation from that course beyond what was necessary and incidental to the bringing of large quantities of waste land into cultivation, and adding the same to the farm. The proprietor, and his ground-officer, inspected the cultivation of the farm yearly, and the ground-officer reported on the same annually to the proprietor. No complaint was ever made about the rotation on which the farm was worked. The pursuer regularly paid the rent stipulated by the lease, and got receipts for the same, in full of all claim for rent for the different crops and years, as the lease ran on. At the time that the last portion of waste land was reclaimed, viz., about five years before the expiry of the lease, the pursuer asked the proprietor, Mr Garden William Duff, whether it would be necessary to restore the course of cropping to the six-shift rotation before the expiry of the lease, and offered to restore it. The proprietor told the pursuer that this would not be necessary. The defenders, or their author the late Mr Garden William Duff, took the farm off the pursuer's hands, without challenge as to the rotation of cropping that it was in. He also let it on lease to the present tenant on the express footing that it was on the five-course shift. He received payment from the in-coming tenant for the second year's grass, payment of which is concluded for in this action. The tenant also pleaded acquiescence with regard to field No. 14. He contended, also, that the clause of pactional rent in the regulations did not apply to the farm.

The Lord Ordinary ( Kinloch), after a proof, pronounced this interlocutor:—“Finds that the pursuer does not now insist in his claim for the sum of £44, 2s. 6d. originally claimed as the amount of meliorations, and in so far as concerns this claim, assoilzies the defenders from the conclusions of the action, and decerns: Finds it admitted that the pursuer, at the issue of his lease, left on the farm a way-going crop of the value of £501,19s. 2d., for which the landlord was bound to make payment: But finds that the defenders plead compensation on an alleged counter claim against the pursuer in respect of miscropping: With reference to this counter-claim, finds it proved in matter of fact that by the terms of his lease, the pursuer was bound to observe a six-shift rotation of crops; but that, in the course of his possession under the said lease, the pursuer changed to a five-shift, with the assent and acquiescence of his landlord, and continued to prosecute the same, with the like assent and acquiesence, down to the termination of the lease: And finds, in point of law, that no claim on this ground lies at the instance of the defenders against the pursuer: Further, finds it proved, in matter of fact, that in the last year of his lease the pursuer took a third white crop, in immediate succession, from a portion of a field amounting to eight or nine acres, contrary to the terms of his lease; but finds that this was done with the knowledge and acquiescence of his landlord; and finds, in point of law, that no claim on this ground lies at the instance of the defenders against the pursuer: Further, finds that, by the terms of his lease, the pursuer was entitled to payment by his landlord of the value of the second year's grass left on the farm, of which the value is admitted to have been £32, 3s. 6d., and finds that no sufficient ground in point of law has been established by the defenders for this payment being refused: Finds it admitted that the pursuer is indebted to his landlord in a balance of rent amounting to £86, 13s. 11d.: Decerns and ordains the defenders, as trustees and executors of the deceased Garden William Duif, to make payment to the pursuer of the foresaid sums of £501, 19s. 2d. and £32, 3s. 6d., being together £534, 2s. 8d., under deduction of the said sum of £86, 13s. lid., with interest on the balance of £447, 8s. 9d., at the rate of 5 per cent, per annum from Whitsunday 1867 till payment: Finds the pursuer entitled to expenses,” &c.

On the question as to the second year's grass, his Lordship, in the note to his interlocutor, said: “With regard to the second year's grass, the lease contains an express clause, providing that ‘the said William Taylor and his foresaids shall, at the issue of this lease, be entitled to payment for first and second grass on the farm, as the same shall be valued by arbiters to be mutually chosen at the time of removal.’ The value of the second year's grass Jeft on the farm is admitted. But the defenders contend that the stipulation is indissolubly connected with the agreement for a sik-shift rotation; under which, besides the first and second year's grass to be paid for, there would also have been third year's grass left without payment; and they plead that when a five course shift was authorised, under which no third year's grass would be left, the whole stipulations connected with the six-shift rotation were abrogated, and this for payment

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of the grass amongst the rest. This is an argument which proves too much, for, if well-founded, it would equally strike at the payment for the first as for the second year's grass; which, however, the defenders do not refuse. The Lord Ordinary thinks the argument an unsound one. When the rotation was, with mutual consent, changed from a six to a five shift, both parties alike knew the result, viz., that there would be no three years' grass at removal; but first and second years' grass only. So far the state of things was altered by the very fact of the rotation being changed; and both parties must be held to have acquiesced in this result with their eyes open. But nothing in the nature of the case implied that the first and second years' grass, which were still to be left, were not to be paid for as the lease provided. For aught that appears, there remained as much propriety in this payment as before. At all events, if the first and second years' grass, unquestionably to be still left, or either of them, were now to be left without payment, the parties should have so provided by distinct contract; and not have left the lease on this point to remain exactly as before. It is not pretended that on this point any direct alteration of the contract was made between them. The argument of the defenders is founded on a supposed implication from the change of the shift; which implication the Lord Ordinary cannot see necessarily to hold. They say that although the first year's grass was properly paid for, the second year's grass should be given without payment, as now coming in room of the third year's grass, which was no more to be left. This is a sort of argument to which the Lord Ordinary cannot give effect. He cannot say that he is deeply versed in the mysteries of grasses; but he thinks the law of the case very clearly to be, that whilst the obligation to leave third year's grass fell by mutual consent, the obligation to pay for first and second years' grass remained under the lease as before, being neither altered by express stipulation nor by any implication necessarily arising, and which the Court is compelled on that account to adopt.”

The defenders reclaimed.

Clark and Macdonald for reclaimers.

Gifford and Mair for respondent.

At advising—