Scottish Court of Session Decisions

The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), enacts—section 9—“(1) Where a tenant of a holding has sustained damage to his crops from game, the right to kill and take which is vested neither in him nor in anyone claiming under him other than the landlord, and which the tenant has not permission in writing to kill, he shall … be entitled to compensation from his landlord for such damage . .; (2) The amount of compensation payable under this section shall, in default of agreement made after the damage has been suffered, be determined by arbitration. .; (4) Where the right to kill and take the game is vested in some person other than the landlord, the landlord shall be entitled to be indemnified by such other person against all claims for compensation under this section.”

In an arbitration arising out of a claim for compensation lodged by William Thomson, tenant of the farm of Polwhilly, Wigtownshire, against the landlord, the Earl of Galloway, in respect of damage done to his crops by winged game coming over from a neighbouring proprietor's land, the arbiter, who had been appointed by the Board of Agriculture, proposed certain findings, and the landlord asked the arbiter to state a case for the opinion of the Court.

The Case stated—“2. By lease herewith produced, dated the 2nd and 5th days of March 1900, entered into between the said Earl of Galloway and John Thomson and William Thomson, his son, there was let to the said John Thomson and William Thomson all and whole the lands and farm of Polwhilly and Inks (excluding certain mosses and moorland) lying in the parish of Penninghame and county of Wigtown, and that for the space of nineteen years from and after the term of Whitsunday 1900, but with a break in favour of either the proprietor or tenants at the term of Whitsunday 1907. Under the said lease there is reserved to the proprietor, the said Earl of Galloway, the game on the said farm and the fish in the river and streams, with the exclusive privilege to the proprietor, and such persons as may be authorised by him, of shooting, sporting, and fishing, subject to the tenants rights under the Ground Game Act 1880. The rent stipulated under the lease was £180. 3. On 11th August 1918 the said William Thomson, now the surviving tenant, lodged a claim under section 9 of the said Act against the said proprietor for compensation in respect of damagesustained by him to his crops on said farm from game, the right to kill and take which is vested neither in him nor in any one claiming under him other than the landlord, and which he has not permission in writing to kill. The said claim, which is produced herewith, amounted to £110. 4. The arbiter accepted his appointment, inspected the holding in presence of the parties or their representatives, and on 31st October 1918 heard proof and parties' arguments thereon. On 8th November 1918 the arbiter issued proposed findings, under which he estimated the damage to the tenant's crop by winged game to be £84, and proposed to find the proprietor liable therefor. 5. The arbiter finds the following facts established by the proof—(1) that due notice in terms of the said Act was given by the tenant to the landlord of the damage being done, and reasonable opportunity given to the landlord to inspect the damage, and that due notice of the tenant's claim for compensation for said damage was timeously given to the landlord; (2) that substantial damage was done by winged game, the right to kill and take which was not vested in the tenant, and which he had not permission in writing to kill; (3) that the game principally came upon the said farm from a neighbouring proprietor's land; and (4) that the damage was done almost entirely during the spring months, and during the close season for killing such game, when the crop was brairding. 6. The tenant was prepared to accept the arbiter's proposed findings, except that he lodged representations on the question of expenses of the arbitration. The landlord, however, maintains in law that the proprietor cannot be held liable under the said Act for damage done during the close season by game coming from a neighbouring proprietor's land. The tenant, on the other hand, maintains that the landlord's liability to his tenant

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under the Act is absolute, and does not depend on any such question. The proprietor has now asked the arbiter to state a case for the opinion of the Court on the point.”

The following question of law was submitted for the opinion of the Court—“Is a proprietor liable to his tenant under section 9 of the said Act for damage done to the tenant's crops by game coming from a neighbouring proprietor's land, and during the close season for killing such game?”

On 6th March 1919 the Sheriff-Substitute ( Watson) answered the question of law in the affirmative.

Note—“The question relates to the construction of section 9 of the Agricultural Holdings Act 1908, the main provision of which is, that where the tenant of a holding has sustained damage to his crops from game, he shall be entitled to compensation from his landlord for such damage (if it exceeds 1s. per acre), provided neither he nor anyone claiming under him had right or written permission to kill such game. The section further enacts that any agreement to the contrary or in limitation of such compensation shall be void. It was argued however, on behalf of the Earl of Galloway,‘that the section should be construed as if it restricted the right of compensation given to the tenant by two further limitations not expressed in the enactment, viz.—that if the damage done to the crops was caused (1) by game coming not from the land belonging to the tenant's landlord, but from a. neighbouring proprietor's land, or (2) by game coming during close time, no compensation should be due by the landlord. I am unable to imagine any ground which could justify a court of law in interpolating into a statutory enactment two such important restrictions which are altogether absent from its terms. It cannot be suggested that these restrictions were omitted by the Legislature per incuriarn, and even if that were the case the Court has no authority to improve a statute. The objects of the Act were to benefit the tenant and to protect the crops in the general interest of agriculture.”

The landlord appealed, and argued—The appellant ought not to be found liable in compensation as most of the damage to the tenant's crops had been caused by a neighbouring proprietor's game. There being no duty on the part of the appellant to protect his neighbours from damage done by game coming from his own estate, the appellant could not operate relief from his neighbours when the position was reversed. It had been thus held by Lord Ardwall when Sheriff of Perth in a case of Taylor v. Fraser, heard on 12th April 1904 (unreported), and accordingly the decision of the Sheriff-Substitute was inequitable. The damage had, moreover, been inflicted during the close season when the game could not have been shot. It was only when the damage was due to an excessive stock of game, which the owner failed to keep within a reasonable limit, that the Act provided for compensation being given. Here there had been no allegation of such an excessive stock.

Argued for the respondent—The terms of the Act were perfectly plain and provided for compensation being paid in the event of damage being done to the crops by game. The Act did not differentiate between close and open seasons. Had that been the intention of the Act, it would have expressly said so. The Act left no room for the consideration of arguments based on equity. Counsel cited Rankine on Leases, p. 96, notes.