Scottish Court of Session Decisions

The Honourable Lord Ninian Crichton Stuart of Falkland, in the county of Fife, complainer, brought a note of suspension and interdict against John Barrie Ogilvie, farmer, Westfield Farm, Falkland, respondent, in which he prayed the Court to interdict the respondent from trespassing upon and grazing sheep or cattle in a certain park, called the Mansion-House Park, belonging to the complainer.

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The complainer pleaded, inter alia—“(1) The respondent's occupation of said Mansion-House Park having been terminated, in terms of the minute of lease between the complainer and the respondent, the complainer is entitled to be protected against interference by the respondent with his right of possession thereof.”

The respondent pleaded, inter alia—“(4) In respect that the clause in said minute of lease founded on by the complainer, which purports to give the complainer power to resume possession on giving one month's notice of his intention so to do, is inept and of no force or effect, the note should be refused.”

The facts are given in the opinion ( infra) of the Lord Ordinary ( Hunter), who on 27th June 1913 repelled the pleas-in-law of the respondent and granted interdict as craved.

Opinion.—“The complainer, who is the proprietor of the estate of Falkland, in the county of Fife, seeks to interdict the respondent, who is tenant of the farm of Westfield on that estate, from unlawfully entering or trespassing upon the park at Falkland House in said county known as the Mansion-House Park, belonging to the complainer, and from grazing sheep or cattle or other live stock in said park, or in any other way interfering with the complainer's possession thereof.

By minute of lease between the parties, dated 21st and 24th January 1907, the park known as the Mansion-House Park, extending to 41 acres or thereby, was along with two other parks, possession of which was subsequently resumed by the complainer, let to the respondent for one year from Martinmas 1906 and from year to year thereafter. By the third article of this lease the complainer reserved to himself ‘Power to resume in whole or in part the lands hereby let for any purpose whatever, except that of letting to another agricultural tenant, on giving one month's notice of his intention so to do to the tenant,’ it being provided that the respondent should be entitled to compensation for any loss or damage sustained by such resumption.

By letter dated 10th February 1913 and addressed to the respondent the complainer's factor gave notice that the complainer would resume possession of said park as at 31st March 1913. It was explained to respondent by letter, dated 21st February 1913, that the park was required for the grazing of pedigree sheep belonging to the proprietor.

The respondent disputed the complainer's right to resume possession of the land, and proceedings were in consequence taken in terms of the Sheriff Courts (Scotland) Act 1907 to have him ejected. He was ejected and his live stock removed at his sight to one of his own parks. Notwithstanding this ejection the respondent replaced his cattle in the field in question, and on 10th April, and again on 11th April, the complainer caused the respondent and his stock to be removed. Hence the present proceedings.

I think it clear that, so far as the terms of the lease are concerned, the complainer was entitled to give the notice he did, and to resume possession of the park at 31st March 1913. The respondent, however, maintains that the clause in the lease which purports to give the complainer power to resume possession on giving one month's notice of his intention to do so is inept and of no force or effect. This argument is based upon the provisions of the Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64). It is provided by section 18 (1) of that Act that ‘… [ quotes, v. sup. in rubric] …]’ and by (2) of the same section that ‘failing such notice by either party the lease shall be held to be renewed by tacit relocation for another year, and thereafter from year to year.’ According to the respondent's contention, this clause by implication prohibits contracting out, and incorporates into all year-to-year leases a condition that the tenancy shall not be terminated unless notice to terminate has been given six months before the termination of the lease by one of the parties to the other. I think that a good deal may be said against this view, particularly in a case like the present where the written lease is prior to the statute, and nothing is said therein as to express arrangements, lawfully entered into between landlord and tenant before the passing of the Act, becoming void or being modified by its provisions. In the view I take of the case it is not necessary for me to express a final opinion upon this matter. The complainer's counsel rested their argument mainly upon the terms of (5) of section 18 of the 1908 Act, which provides—“The provisions of this section relative to notice shall not apply to any stipulation in a lease entitling the landlord to resume land for building, planting, feuing, or other purposes, or to subjects let for any period less than a year.’

The question is whether other purposes referred to in that provision include grazing of pedigree sheep. The Solicitor-General, founding upon the rule of construction that general words following particular and specific words are restricted to the same genus as those words, maintained that the provision in sub-section 5 did not confer upon the landlord right to resume land on short notice where he proposed himself to use the land for agricultural or grazing purposes, but limited the right to purposes ejusdem generis with building, planting, and feuing. As regards this rule of construction, it is to be observed that, as Lord Kinnear said in the case of The Admiralty v. Burns, 1910 S.C. p. 531, at p. 536—‘It is a rule of construction only, that is to say, it is a canon which must be used to guide the Court in construing a written instrument in order to find out what is the true intent and meaning of the language used, and I think we must be cautious in applying it as if it were an abstract rule of law which could be used to force a meaning upon the words of the contract irrespective of other indications of what is the true intention of the parties.‘

As I read section 18 of the Act of 1908 I think that the intention of the Legislature was to allow unrestricted freedom of contract

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between landlord and tenant where it is in the contemplation of both parties to a lease that the landlord, for his own purposes, may desire to resume possession of the land let. In the present case the purpose for which the complainer desired the park was one which, in my opinion, both parties might in entering into the contract contemplate as reasonably probable, and therefore covered by the terms of the provision. It would have been different if the landlord had availed himself of the clause as to notice with the intention of reletting the land to another tenant.

A considerable amount of argument was submitted as to the regularity of the proceedings taken under the Sheriff Court Act 1907 for the removal of the respondent. If the view which I have expressed under the Agricultural Holdings Act 1908 be sound, I do not think that this matter is of any importance. In my opinion the respondent after 31st March 1913 had no right to possession of the subjects let to him, and was therefore not entitled to replace his cattle in the field in question whether he had been ejected in a regular or irregular fashion. I therefore repel the pleas for the respondent and grant the interdict craved.”

The respondent reclaimed, and argued—The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), sec. 18 (1) (b), entitled the respondent to six months' notice. The complainer could not found on the exception contained in (5), as that provision dealt only with stipulations entitling the landlord to resume for building, planting, feuing, and purposes ejusdem generis. Grazing of pedigree sheep did not fall within the genus, which was confined to purposes non-pastoral and non-agricultural. The Admiralty v. Burns, 1910 SC 531, 47 S.L.R. 481, was distinguishable, as the enumerated purposes in that case did not form a genus at all.

Counsel for the complainer were not called on.