Scottish Court of Session Decisions

The Crofters' Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), as amended by the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), enacts—Section 6—“(1) The landlord or the [landholder] may apply to the [Land Court] to fix the fair rent to be paid by such [landholder] to the landlord for the holding, and thereupon the [Land Court], after hearing the parties and considering all the circumstances of the case, bolding, and district …, may determine what is such fair rent, and pronounce an order accordingly.”

The Duke of Hamilton and others, the testamentary trustees of the late Duke of Hamilton, appellants, being dissatisfied with a decision of the Scottish Land Court in an application by Mrs Mary M'Kelvie, respondent, tenant of a holding at Kilpatrick, Blackwaterfoot, Arran, of which the appellants were proprietors, for an order fixing a first fair rent for the holding, took a Case for the opinion of the Court.

The Case set forth—“5. The holding is situated in immediate vicinity to one of the sporting moors of the estate. The crops upon it are exposed to injury or destruction from game, chiefly grouse. In consequence of this situation trouble and inconvenience in

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watching and otherwise protecting the crops against injury are caused to the tenant, and the letting value of the holding is thereby diminished…. In fixing such fair rent the Court took into account as circumstances of the case and holding that the holding was situated in immediate proximity to a sporting moor, that the crops thereon were exposed to injury or destruction by game, and that this situation involved trouble and inconvenience to the tenant in watching and otherwise protecting the crops against injury by game and diminished the letting value of the holding. The Court held that the right of the tenant to recover damage for specific injury to crops by game, under the limitations and conditions contained in section 9 of the Agricultural Holdings Act 1908, and section 10 (3) of the Small Landholders (Scotland) Act 1911, did not exclude these circumstances from being taken into account.”

On 23rd June 1913 the Land Court pronounced an order which fixed the fair rent of the holding at the annual sum of £13.

The questions of law included—“2. Were the Land Court entitled in fixing a fair rent for the holding to take into account, as circumstances of the case and holding, that the holding by its situation was and is exposed to injury to crops by game, and required watching by the tenant in order to prevent such injury being done, and that the letting value of the holding was thereby diminished?”

The appellants lodged a note, which set forth, inter alia—“4. The [second] question of law is whether the Land Court was right in fixing a fair rent to hold that the letting value of the holding was diminished by what they consider to be its exposure to injury to crops by game. The Land Court refuse to state the fact that the applicant did not prove any damage.”

Argued for the appellants—The risk of damage to crops by game should not have been taken into account in fixing a fair rent. In any event there was no evidence upon which the Land Court could have proceeded in that matter. The Land Court had not indicated by how much they had reduced the rent for that reason. If in any year damage by game occurred the tenant could recover compensation—Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), section 9—and have it fixed by an arbiter. The appellants should be in a position to state to the arbiter that the tenant's rent had been reduced by a certain amount to provide for that contingency. But standing the order of the Land Court they could not do so, with the result that the tenant would get double payment by having his rent reduced and at the same time receiving compensation. The right of the landlord to hunt, shoot, fish, &c., was preserved—Crofters' Holdings (Scotland) Act 1886 (49 and 50 Vict. cap. 29), section 1 (7)—and so was the tenant's right to compensation for game damage—Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 45), section 10 (3). The latter being secured, the value of the holding as a lettable subject was not impaired by risk of game damage.

Argued for the respondent—The fact that a tenant might after negotiation, or even after an arbitration, secure compensation for damage done by game, did not exclude the risk of game damage as an element to be considered in fixing a fair rent, for there could be no doubt that a prospective tenant would prefer a holding where there was no risk of game damage to one in which he would be exposed to that risk with a claim for compensation. Further, the latter would be more costly to run, as the tenant would have to incur expense in watching, &c. The decision of the Land Court was right.

At advising—