Scottish Court of Session Decisions

The Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), section 13, enacts—“(1) Land shall not be deemed available land for the purposes of this Act unless it lies contiguous or near to land already in the occupancy of the crofters making the application, and belongs to the same landlord or landlords as the land occupied by the said crofters.… (3) It shall not be competent for the Crofters Commission to assign land for the enlargement of the crofters' holdings … ( e) if the land form part of a deer forest.…”

The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) enacts—Sec. 16 (2)—“Section 13 of the Act of 1886, with the exception of sub-section 3 ( e) thereof, shall cease to have effect, provided that land shall not be deemed available land for the enlargement of a holding otherwise than by agreement, unless it is land in respect of which a person would be admissible to registration otherwise than by agreement as a new holder under this Act.…” Sec. 26 (2)—“A person shall not be admissible to registration as a new holder under this Act in respect of land belonging to more than one landlord.…”

On 10th January 1914 the Board of Agriculture for Scotland, respondents, presented to the Scottish Land Court ( a) an application for approval of a scheme for constituting a new holding on the farm of Conchra forming part of the estate of Attadale, Strath-carron, in the county of Ross and Cromarty, belonging to the trustees of the deceased Baron William Henry Von Schroder, late of the Rookery, Nantwich, in the county of Cheshire, and of the said estate of Attadale, appellants; and ( b) an application for approval of a scheme for enlargement of the holdings of persons who are landholders upon the estate of Lochalsh belonging to Sir Kenneth James Matheson, Baronet, of Gledfield, Ardgay, Ross-shire, by assigning to them land on and from the said farm of Conchra. The said trustees lodged answers to the said applications and appeared before the Land Court to oppose the same. The applications were also opposed by Mr James Paul Helm, to whom the farm of Conchra was let on a lease for fourteen years as from the term of Whitsunday 1913. The Land Court having heard counsel for the applicants and for the objectors, on 26th March 1914 repelled the objections to the competency of the application, and continued the application for hearing on the merits.

Note.—“… The objection to this application for enlargement is, that on a sound construction of the provisions relating to enlargement in the Small Landholders Acts 1886 to 1911, the land is not available (otherwise than by agreement) for enlargement of holdings which are situated on the land of Sir Kenneth Matheson. It is maintained that no land is available for enlargement of holdings unless it belongs to the same landlord or landlords as the land of the holdings which are sought to be enlarged.

If this contention is valid, this application is incompetent.

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It is certain that by the express and unambiguous words of section 13 (1) of the Act of 1886 no land was available land for the purpose of enlargement of holdings unless it belonged to the same landlord or landlords as the land held by the crofters applying for enlargement.

But the whole of this 13th section, with the single exception of sub-section 3 ( e) relating to land forming part of a deer forest, has been repealed by the Act of 1911 section 16 (2) and Second Schedule].

The limitation contained in the repealed section above quoted has not been re-enacted in express words by the Act of 1911. Therefore the question is whether it ought to be held as re-enacted by implication from the general words and scheme of the enlargement sections of the Act of 1886 (so far as not repealed) and the sections of the Act of 1911 which amend the provisions of the Act of 1886 with regard to enlargement—particularly section 16 of the Act of 1911.

This limitation having been expressly repealed by the Act of 1911, it lies on the objector who pleads it to show that it has been re-enacted. If it is doubtful whether it has or has not been re-enacted the objection fails. That the Legislature had this limitation directly under consideration is evident. Now the ordinary and simple course if the Legislature intended that this limitation should continue in force would have been either to except from repeal the part of section 13 (1) of the Act of 1886, in which this limitation is clearly expressed [as has been done in the case of section 13 (3) ( e)], or to re-enact it in the same or equally clear words by the amending section (section 16) of the Act of 1911.

It may be observed that the express amendments by the Act of 1911 of the enlargement provisions of the Act of 1886 are not limiting but extending amendments. For example, instead of five landholders one may apply, instead of a part varying from one-third to two-thirds according to annual value, the whole of the farm may be assigned in enlargement; the limitation to such part as can be assigned without material damage to the remainder disappears; the limitation that no holding can be enlarged so as to raise its total annual value higher than £15 is replaced by a provision which allows a holding to be enlarged up to the full limit of rent or acreage competent in the case of any new holding, namely, £50 of rent in money, unless the acreage (exclusive of common pasture) does not exceed fifty acres. And the Board of Agriculture has been charged with the duty of applying for enlargement of existing holdings as well as for the constitution of new holdings, and also empowered to grant assistance to landholders for adapting and improving land assigned in enlargement.

This shows that the general intention and policy of the Legislature were to favour the extension and increase of the system of enlargement of existing holdings which was first introduced by the Act of 1886 and has worked beneficially.

In the next place, it is worth notice that sections 11 and 12 of the Act of 1886 taken alone, either as they stood or as amended by the Act of 1911, rather suggest that land is available for enlargements whether it belongs or does not belong to the same landlord as the landlord of the holdings which are sought to be enlarged. The limitation was introduced solely by the now repealed sub-section (1) of section 13, which defined what land should be available for enlargements.

The new or substituted description of what land is ‘available’ for enlargements is found in section 16 (2) of the Act of 1911. The part of the description bearing directly on the point in dispute runs as follows:—Land shall not be deemed ‘available land’ for the purpose of the enlargement of a holding otherwise than by agreement, ‘ unless it is land in respect of which a person would be admissible to registration otherwise than by agreement as a new holder under this Act.’ This carries out the general scheme of the Act of 1911, which places, with the necessary modifications, applications for enlargement on the same footing as applications for constitution of new holdings.

Now the sections of the Act which determine what is land in respect of which a person would be admissible to registration as a new holder under the Act (otherwise than by agreement) are section 7 (16) ( a) and ( b), section 26 (4), and, it may be, section 26 (2) of the Act of 1911.

Section 7 (16) ( a) and ( b) apply to enlargements in virtue of the express provisions in section 16 (1) of this Act. They do not affect the competency of the present application.

Accordingly, what section 16 (2) refers us to is section 26, and clearly section 26 (4)—‘A person shall not be admissible to registration as a new holder under this Act in respect of any land referred to in paragraphs ( a), ( b), ( c), ( d), or ( e), or, except by agreement, in respect of any land referred to in paragraphs ( g), ( h), or ( i),’ being the whole exclusions enumerated in the preceding third sub-section of section 26, other than ( f). These paragraphs except ( a) exclude certain kinds of ‘land’ because of their character and use. Paragraph ( a) in its application to enlargements by section 16 (2) determines the limit of rent and acreage up to which an existing holding may be enlarged.

Paragraphs ( b) and ( g) repeat exclusions which section 13 (3) ( a) and ( d) of the Act of 1886 had enacted and are now repealed by the Act of 1911.

The reasons and grounds of these exclusions apply with equal force to enlargements and to new holdings. But the present case does not fall within any exclusion expressed or incorporated by reference in sub-section 4 of section 26.

It was argued for the Board of Agriculture that the reference in section 16 (2) should be construed as a reference only to sub-section (4) of section 26, which, as already noted, relates to exclusions for reasons and grounds depending on the use and character of the land.

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No doubt the main reference is to subsection (4) of section 26. But the second sub-section of section 26 begins—‘A person shall not be admissible to registration under this Act in respect of land belonging to more than one landlord, or in respect of more than one holding.’

It is a point in favour of the Board's contention that while the words ‘otherwise than by agreement’ specified in the referring words of section 16 (2) are substantially repeated in section 26 (4), they do not occur in section 26 (2). Section 26 (2) applies to every registration of a new holder, irrespective of whether the new holding is constituted by agreement or otherwise than by agreement.

This is an indication that the fourth sub-section of section 26 is the sub-section directly and primarily referred to. But we do not think that it warrants the inference that section 26 (2), which certainly covers the registration of new holders otherwise than by agreement, is excluded from the scope of the reference in section 16 (2).

Accordingly, we have next to consider whether section 26 (2) forbids enlargements to be assigned from any land except land belonging to the landlord of the existing holdings which are craved to be enlarged.

The question depends directly on the first part of this second sub-section. The latter part, though it may supply a useful analogy, deals only with existing holdings under the Act of 1911.

It must also be observed that there is no ‘registration’ in the case either of enlargements of existing holdings or of existing holdings of any kind. ‘Registration’ applies solely to new holders—See e.g. section 2 (1) (iv), section. 7 (1), (4), (13), (14), section 13 ( c) of the Act of 1911 by which registration is introduced. The register referred to in section 33 of the Act of 1911 is merely a record for statistical purposes.

An enlargement is, by section 15 of the Act of 1886, deemed to be part of the holding to which it is assigned. Assignment of enlargements corresponds to registration of new holdings.

Accordingly, making the modifications necessary to apply this sub-section 2 of section 26 to the case of enlargements, the first part of it reads as follows—‘A landholder shall not be assigned an enlargement of his holding under the Acts 1886–1911 out of land belonging to more than one landlord.’ In short, land belonging to more than one landlord is not ‘land available either for the enlargement of an existing holding or holdings of landholders or for the constitution of new holdings otherwise than by agreement.’

But the land which by this application is craved to be assigned in enlargement of the holdings of the specified landholders is not ‘land belonging to more than one landlord.’ The whole land comprised in the application belongs to the objectors, Baron Von Schroder's trustees.

Therefore, if the words are to be taken in their ordinary meaning, the plea of incompetency fails.

The argument for the landlords that these words of section 26 (2) ought to be interpreted to mean in the case of enlargements ‘land belonging to any landlord except the landlord of the holdings sought to be enlarged’ was mainly rested on the grounds that any other construction (1) was inconsistent with the provisions of sections 12 and 15 of the Act of 1886, and (2) would involve great inconveniences and difficulties to the landlords concerned as regards payment of rent, resumption, or renunciation of or removal from the enlarged holding.

(1) The part of section 12 founded on is the direction to ascertain as far as possible how far the small size of the holdings has been due to the action of the landlord or of the landholders.

This is certainly a circumstance to be taken into account where it exists and is ascertained. That it is not more than a circumstance is clear from the subsequent part of the section which specifies of what facts the Court must be satisfied before making an Order for enlargement.

Whether the small size of the holding is due to the action of the landholders or their predecessors, e.g., by sub-division of their holdings with consent of the landlord at their request, is material whether the enlargement is craved from the lands of the same or of a different landlord. The small size may not be due to the action either of landholders or of landlords or the predecessors of either of them. Or it may be due to the action of a predecessor of the landlord from whose land an enlargement is sought at a time when estates now separate were held by the same landlord. In short, this is a circumstance which may or may not exist, or be capable of ascertainment in any particular case. Therefore it affords very slender ground for limiting a general enactment.

Section 15 provides that an enlargement assigned shall be deemed to be part of the holding to which it is assigned and subject to the provisions of the Act. This in itself expresses what naturally follows from enlargement of a holding.

(2) With regard to the inconveniences and difficulties suggested, it must be kept in view that all of them may arise, and have in fact frequently arisen, under the Acts of 1886 or 1911.

These may arise, and have in fact arisen, by reason of sales of, or succession to, lands occupied by landholders' holdings, most frequently as regards common pastures or grazings. Individual holdings may be alienated or bequeathed by the landlord to one or more persons, and the common pastures or grazings to another or other persons, so that one or more holdings originally held all from the same landlord may come to be held each from two or any number of distinct landlords by the existing landholder or landholders.

In the next place, these inconveniences and difficulties also arise under the exception in favour of existing yearly tenants or qualified leaseholders who hold land belonging to more than one landlord but work such land as one holding, enacted by the

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concluding part of this second sub-section of section 26 of the Act of 1911.

There is no difficulty as to the allocation of a fair rent between different landlords—it has been done under the Act of 1886. Nor is there any difficulty as to resumption, for resumption may be either of the whole or of any part of a holding.

There are difficulties in working out the provisions of the Acts as to removal from or renunciation of any holding which happens to be held from different landlords. But it is evident that the Legislature did not regard these difficulties either as sufficient to weigh down the advantages to landholders in the exceptional position contemplated by the latter part of this second sub-section or as requiring any qualification or provision to meet them either in that case or in the more usual case of the landholder where these arise through the exercise by the landlord of his powers of alienation or bequest.

The main answer to this argument is substantially the answer which the Supreme Court gave in the case of Traill's Trustees v. Grieve, 11th July 1890, 17 R. 1115, 27 S.L.R. 884, where the inconveniences and difficulties of the enlargement sections (as they originally stood in the Act of 1886) were pleaded as a reason for narrowing the ordinary meaning of the language used in these sections. Lord President Inglis, while sympathising with the ‘extreme hardship and difficulty of the position of landlord and tenant,’ pointed out that these considerations could not affect the construction of the statute, which seemed too clear to be overridden by extraneous considerations. Lord Shand, while also of opinion that many troublesome and difficult questions resulted, agreed that the Court could not on that account refrain from giving full effect to the words of the sections concerned which appeared to be clear.

If it were necessary to discuss the question of the policy of the Act of 1911 it might be pointed out that there are many cases (some of them, as already indicated, arising out of the alienation or bequest by a landlord of part or parts of his estate) where, unless enlargement can be granted from lands belonging to a landlord who is not the landlord of the holdings sought to be enlarged, no enlargement of existing holdings would be possible, however great the need for enlargement might be. It is often more convenient and usually less expensive to enlarge a landholder's existing holding (which is equipped with buildings) to a size adequate to support him than to constitute and equip a new holding for a landholder on renunciation of his undersized holding.

It seems probable that Parliament expressly repealed the limitation by section 13 (1) of the Act of 1886 of land available for enlargements to land belonging to the same landlord as the land of the holdings sought to be enlarged, in order to remedy this hardship to landholders in need of enlargement which had resulted from that limitation. There may not be yet a complete remedy for every conceivable case of hardship, but cases where land for enlargement of holdings which need enlargement cannot be found on some one estate in the same or an adjacent parish, as such holdings (section 11 of the Act of 1886) must be comparatively few.

The main ground on which we proceed in repelling the plea to competency is that the original clearly expressed limitation in section 13 (1) of the Act of 1886, which would have excluded the present application, has been expressly repealed, while the limitation substituted therefor by the Act of 1911, on the plain construction of the different terms in which it is expressed, is a different and lesser limitation, which does not exclude the present application.

Accordingly, inquiry into the merits of this application must be made.”

The objectors took a Stated Case, in which the question of law for the opinion of the Court was—“Whether, on a sound construction of the provisions of the Small Landholders Acts 1886 to 1911, relating to enlargement of holdings, the said application for enlargement of holdings was competent?”

Argued for the appellants—The general scheme of the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) showed that it was not intended that the land of one proprietor should be added to that of another. Had it been intended it would have been expressly provided for in the Act. Though in the Act of 1911 the prohibition against so doing contained in the Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29) was repealed, that did not amount to enacting the contrary. A “holding” implied the relationship of a landlord and a tenant and not a composite relationship, such as was suggested, which would lead to anomalies regarding such matters as rent, buildings, vacant holdings, and compensation, for none of which provision was made in the statute. When a proprietor contributed land without buildings the hardship would be acute. The case of Traill's Trustees v. Grieve and Others, July 11, 1890, 17 R. 1115, 27 S.L.R. 884, was different from the present in respect that there the lease was dated subsequent to the Act. The following sections of the Act of 1886 were quoted—sections 8, 11, 12, 13, 15, 34, and of the Act of 1911 sections 7, 16 (1), 16 (2), 26 (2), 26 (3), 26 (4).

Argued for the respondents—Difficulties in the application of the Act of 1911 were irrelevant and must be set aside, and only the competency of the proposed construction of the Act considered. In point of fact the provisions of the Act were perfectly consistent with those of the Act of 1886. All land within the prescribed area was available for registration for small holdings with certain exceptions contained in sections 26 (2), (3), (4) of the Act of 1911. Unless it fell within such exceptions any difficulties in the application of the Act which arose were merely matters for the administration of the Land Court. Section 11 of the Act of 1886 was still unrepealed, and there were no fetters on its provisions other than those

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in section 16 (2) of the Act of 1911. In this sense the land proposed to be taken was “available land”— Traill's Trustees v. Grieve and Others ( cit. sup.), Lord President (Inglis) at 1118.

At advising—