Scottish Court of Session Decisions

The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, c. 64), enacts—Section 23 (1)—“Notwithstanding any custom of the country, or the provisions of any lease or agreement, respecting the method of cropping of arable lands, or the disposal of crops, a tenant of a holding shall have full right to practise any system of cropping of the arable land on the holding, and to dispose of the produce of the holding, without incurring any penalty, forfeiture, or liability.…” Section 29—“… (2) Where under a lease current on the first day of January Eighteen hundred and ninety-eight a holding was at that date in use or cultivation as a market garden with the knowledge of the landlord, and the tenant thereof has then executed thereon, without having received previously to the execution thereof any written notice of dissent by the landlord, any improvement comprised in the Third Schedule to this Act, the provisions of this section shall apply, in respect of that holding, as if it had been agreed in writing after that date that the holding should be let or treated as a market garden, … (3) Where the land … so used and cultivated consists of part of a holding only, this section shall apply as if that part were a separate holding.” Section 35 (1) enacts—“… ‘Holding’ means any piece of land held by a tenant which is … in whole or in part cultivated as a market garden. ‘Market garden’ means a holding cultivated, wholly or mainly, for the purposes of the trade or business of market gardening.”

On 11th May 1912 James Inglis Davidson, Saughton Mains, Midlothian, the arbiter appointed by the Board of Agriculture and Fisheries in a reference under the Agricultural Holdings (Scotland) Act 1908 between Mrs M. R. Steel-Maitland of Barnton, Midlothian, respondent, and James Taylor, sometime farmer at Easter Drylaw on the said estate, claimant and appellant, submitted a Case under section 9 of the Second Schedule of the Act for the opinion of the Sheriff of the Lothians and Peebles at Edinburgh.

The facts were:—By lease, dated 24th and 30th May 1892, Sir James Ramsay Gibson Maitland (whose successor the said Mrs Mary Ramsay Steel-Maitland is) let to the said James Taylor All and Whole the farm and lands of Easter Drylaw for the period of nineteen years from and after Martinmas 1892. The extent of said lands was 153 acres or thereby and the rent £851, 8s.

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The whole of said farm was arable land. The lease provided that “although the farm is let primarily as an agricultural subject, the said James Taylor and his foresaids shall be entitled to use all or so much of the land of the farm as he or they think proper for the purposes of a market garden, but subject always to the conditions following, videlicet—(1) None of the land shall be used for growing any kind of fruit except strawberries; (2) land used for market garden purposes shall be worked on a four years' rotation (the first and second years of the rotation being market garden produce, the third year white crop, and the fourth year grass); … (3) in the case of land under four years' rotation the tenant shall apply not less than 60 tons per acre of well-rotted horse or cow dung to the land in the first year, and not less than 40 tons per acre in the second year of the rotation; … (4) land which has been under market garden produce shall be thoroughly cleaned before being put under white crop; (5) the tenant shall be bound constantly to keep all land used for market-garden purposes well cleaned and in good heart, and to manage it according to the recognised rules of well-managed market gardens in the vicinity of Edinburgh,” under a penalty in case of failure. Mr Taylor, who was a market gardener residing at Bangholm, Ferry Road, Edinburgh, from the outset grew market garden produce at Easter Drylaw, but the forcing of rhubarb was not carried on by him there until about the year 1902. In the course of his tenancy he gradually increased the area under market garden crops until there would be annually about 50 acres. These 50 acres, however, were not annually precisely the same ground, as Mr Taylor changed the portions of the ground, his custom being to select for market-garden purposes the fields or portions of fields he thought most suitable. The rest of the farm was cultivated as an ordinary arable farm. In evidence Mr Taylor stated—“Before I entered it, it had been cropped merely as a farm, and I began bit by bit to convert it into a market garden. After I was able to get the land to carry the crops I gradually increased my extent of market gardening. It was in 1899 that I began to grow rhubarb to any particular extent upon it. I required to have it ready for my forcing-houses in 1902. I ultimately extended my rhubarb break to from 12 to 15 acres.” At the termination of Mr Taylor's lease at Martinmas 1911 about 50 acres of the farm were under market garden crops, and of these 12 acres or thereby were under rhubarb crop, a considerable part of which, however, had been planted out in the spring of 1911 after he had received notice to quit the holding, which course he had followed in previous years. In or about the year 1901 Mr Taylor removed from certain land which he had rented at Bangholm, and from that date down to November 1911 his whole business was carried on upon Easter Drylaw Farm. As there were no suitable houses upon Easter Drylaw for the growing and forcing of early rhubarb Mr Taylor erected and equipped suitable forcing-houses. This he did at his own expense, but without the previous consent of the proprietrix. The landlord's knowledge of the erection of the first forcing-house is established by the following letter to Mr Taylor from Mr Grigor, factor on the estate, and Mr Taylor's reply:—[ Mr Grigor to Mr Taylor, 4 th November 1903]—“Dear Sir—I beg to draw your attention to the terms of your lease of Easter Drylaw Farm, and shall be obliged if you will kindly explain what your intentions are with regard to the brick structure you are erecting on the field to the west of the garden. I may mention that the conditions of the lease will be strictly enforced.—I am, & c., John Grigor.” [ Mr Taylor to Mr Grigor, 5 th November 1903]—“Dear Sir—The building I am erecting is a forcing-house for growing rhubarb.—Yours faithfully, James Taylor.” From about this time onward to the termination of the lease, it was admitted on both sides that the growing of rhubarb at Easter Drylaw was carried on upon a larger scale than had previously been the case. The buildings erected by the claimant for market-gardening purposes were not required, and are not now required or used, for the purposes of a purely agricultural farm. The tenant's occupation of the subjects expired on 28th November 1911, and on 10th November 1911 he intimated a claim under the Agricultural Holdings (Scotland) Act 1908, in which he claimed, inter alia, the sum of £2163, 17s. 7d., being the value of the improvement claimed to have been effected by him on said holding or parts thereof by the planting thereon of the vegetable crops (limited in the claim to rhubarb stools) which continue productive more than two years, and the erection of buildings for the purpose of trade or business of a market gardener. On 9th December 1911 the rhubarb stools in question were sold by public roup by the proprietrix. After the arbiter had accepted office, the proprietrix lodged objections to Mr Taylor's claim, in which she repudiated said claim in toto, denying it to be competent or well founded, and alternatively stating it to be excessive. Proof was led by the parties before the arbiter on 25th, 26th, and 30th January 1912, and the proof having been closed the arbiter heard parties on the evidence on 31st January 1912. It was established in evidence that the proprietrix was aware of the manner in which the said farm was being managed and cultivated, and of the proportion thereof annually under market garden crops and of the nature and class of crops grown, and that she did not, either verbally or in writing, express any dissent therefrom, but warned Mr Taylor that the terms of the lease would be strictly enforced. In the growing of forced rhubarb it was proved (1) that the stools are kept in the forcing-house for from six to eight weeks; (2) that thereafter they are removed to the fields from the house; (3) that the stools require from three to five years' nursing in the field to recover their full vigour.

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At the hearing on the evidence it was contended, inter alia, on behalf of the proprietrix that, upon a sound construction of the Agricultural Holdings (Scotland) Act 1908, and in view of the terms of the lease and of the facts above set forth, the clauses of said Act which allow compensation for tenants' improvements on land let or cultivated as market gardens do not apply to the claimant's holding as let to and cultivated by him, and that he is not entitled under the Act to any compensation for the improvements which he claims to have made. The contrary view was contended for by the claimant. At the hearing the claimant's law agent indicated his desire that the arbiter should state a case for the opinion of the Court on the question of law thus raised, and he subsequently, by letter dated 1st February 1912, requested the arbiter to state a case. The question thus raised is one which, in the opinion of the arbiter, was of considerable importance, and the determination of which was necessary before he could proceed to pronounce an award. A question had also been raised by the claimant as to whether, in view of the facts above set forth, the proprietrix had not barred herself from objecting to the validity of the claimant's claim.

The questions of law were—“1. Are the subjects which were let to, and cultivated and used by, the claimant, or any part thereof, a market garden as defined by the Agricultural Holdings (Scotland) Act 1908, to which the special provisions as to market gardens contained in that statute apply? 2. Is the proprietrix, in the circumstances stated in this case, barred from raising any question as to the tenant's right to obtain compensation under the Market Garden Clauses of the Agricultural Holdings (Scotland) Act 1908?”

On 23rd August 1912 the Sheriff-Substitute ( Guy) answered both questions of law in the negative.

Note.—“… It is clear that the tenant's claim cannot fall under the first sub-section of section 29 of the Act of 1908, as the only agreement in writing between the parties upon which such a claim could be founded is the lease itself, and it is not dated on or after 1st January 1898. Any claim that the tenant has, therefore, must be brought by him under sub-section 2 of section 29 of the Act, and he must show that at 1st January 1898 his holding, or part of his holding, was in use or cultivation as a market garden with the knowledge of the landlord, and that he had then executed thereon, without having received previously to the execution thereof any written notice of dissent by the landlord, improvements comprised in the third schedule to the Act. Now there were certain of the improvements set forth in that third schedule which he was quite entitled to make under the powers which his lease gave him; for example, he had the power to plant strawberry plants and to plant vegetable crops which might continue productive for two or more years. There is no express power given to him in the lease to grow rhubarb, and it is possible that in the growing of rhubarb or such other vegetable crops he might not be able to grow these at a profit if he followed the rotation of cropping which is provided for in the lease for market gardening. But I repeat again that any such consideration does not affect the question for decision. The question is one of fact—Had the tenant at 1st January 1898 actually executed on a part of his holding any of the improvements specified in the third schedule to the Act? There is no statement in the case that he had, and there is no doubt that he had not then started to grow rhubarb, which is now the foundation of his claim. I think, however, that if he had at 1st January 1898 executed any of the statutory improvements he would have been entitled to preserve his claim under the Act, and to extend it to any similar improvements that he made after that date. That is really the meaning of the amending provision of the Act of 1908. I make this remark at this stage subject to some observations that I will have to make with regard to the tenant changing the locality of his market garden within the range of his whole holding. I take it that the statement of facts in the Stated Case is a statement of all the facts relevant to the question to be determined by me that could be stated. If this be so, then the tenant has failed to prove that at 1st January 1898 he had brought himself within the provisions of the Acts of Parliament entitling him to compensation such as he is now claiming in respect of his improvements on a market garden.

The most of the argument presented to me was on the question as to whether it was necessary, in order to entitle the tenant to compensation, that the part of his holding which was in cultivation as a market garden at the expiry of his lease required to be the same part throughout. If I had come to the conclusion that the tenant had had a claim under the Act in respect of the condition of matters at 1st January 1898, I should have been prepared to hold that he had not lost the right which he then possessed to claim compensation by changing from one part of his holding to another in the growing of market-garden produce. He would have been doing that under the express power given to him in the lease, and I think it would have been only fair and equitable that any right which he had to compensation at 1st January 1898 should not be lost by the exercise of a power antecedently granted to him by the landlord. This opinion, in the view that I have taken of the facts, does not of course affect the determination of the questions submitted to me in the present case.

These observations apply to the first question of law put to me. As to the second question, I agree with the contention of the proprietor that her actings can never create a right in the tenant, and I do not think that any of her actings can bar her from stating and maintaining her statutory rights. Her actings may give rise to claims at the instance of the tenant if anything she did was contrary to or destructive of

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his rights. But these are not matters which are raised in the present case.”

The claimant appealed, and argued—The Sheriff-Substitute was in error in holding that the Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, c. 64), section 29 (2) was inapplicable where, as here, the improvements for which compensation was claimed had been executed subsequent to 1st January 1898, for the words “has then executed thereon” meant “has thereafter executed thereon” Callander v. Smith, July 7, 1900, 2 F. 1140, per Lord Kyllachy at p. 1143, 37 S.L.R. 890; affd. May 9, 1901, 3 F. (H.L.) 28, per Lord Shand at p. 31, and Lord Davey at p. 32, 38 S.L.R. 576. Nor was it material that the whole of the subjects had not been used as a market garden, for “holding” meant any portion of land “in whole or in part cultivated as a market garden”—Act of 1908, section 35 (1). The question of rotation was irrelevant, for the tenant of a “holding” could practice “any system of cropping”—Act of 1908, section 23 (1). The factor's letter was not a valid notice of dissent to the execution of the improvements for which compensation was now claimed. That was especially so where, as here, the appellant had been allowed to erect the forcing house and to cultivate rhubarb. Had dissent been intended the notice should have been more explicit.

Argued for respondent— Esto that the word “then” in section 29 (2) of the Act meant “thereafter,” that did not help the appellant, for this was plainly not a market garden in the sense of the Act. Market garden in the sense of the statute meant a holding cultivated “wholly or mainly” as a market garden—section 35 (1). What was let here was a farm—that was plain from the terms of the lease. Esto that the tenant could use such part of it as he chose for market gardening, that did not constitute the part so used a market garden in the sense of the Act, for the Act contemplated a definite portion of ground and not an ambulatory thing. Moreover, the improvements for which compensation was given were such as had been executed “thereon,” i.e. on a definite part of the holding. The statute contemplated continuity of cultivation and implied that the particular portion of the holding in use as a market garden in 1898 should continue to be used till the termination of the lease. Esto, however, that there was here a holding in the sense of the Act, the appellant had not complied with the conditions of the lease as to rotation of cropping, and that was sufficient to bar his claim. Section 23 (1), on which he relied, was inapplicable, for it applied only to arable land. Moreover, the improvements for which compensation was claimed had been made after dissent had been given by the landlord's factor, and the tenant therefore had no claim for compensation.

At advising—