Scottish Court of Session Decisions

At advising on 2nd March 1956,—

LORD PATRICK .—No good purpose would be served by considering in detail the origin and history of the King's Kindly Tenants of the four towns of Lochmaben. Much uncertainty surrounds these subjects and they have become matters of interest only to the historian and the antiquarian. Bell in his Principles, under reference to Ross's Lectures, Craig, Stair and Erskine, deals first with Rental-right and Kindly Tenancy generally, for this kind of holding was not confined to Lochmaben. He points out in section 1279 that the villains of the ancient law grew into kindly tenants under the Crown, the Church and the Barons. "They held their land at first by sufferance, or at will; for the performance, probably, of agricultural services in the mains of the manor or barony. They were enrolled in the rental book of the King's stewart, or in that of their lord; and this, or a copy of the entry, was their sole title. They came to be admitted to a sort of hereditary right; their widows being permitted to continue their possession, and their sons to succeed. Rental-rights had no ish, or term of expiration; and so the alternative was, either to regard them, the rentallers, as perpetual tenants (which they could not effectually be against singular successors, without sasine) or as liferenters."

By the statute of 1587, cap. 69, the rentallers of the Crown were declared to be mere liferenters, but, as Bell points out in section 1280, this Act was not held to operate after a barony became vested in a subject, as the lands of the four towns, and other lands of Lochmaben, with the hereditary custody of the castle of Lochmaben, came to be. The King's Kindly Tenants of the four towns of Lochmaben were singled out for protection by successive warrants of the King in 1592, 1602, and 1664. Finally, in Marquis of Queensberry v. Wright, the Lord Ordinary, Lord Cuninghame, held (at p. 444) that the King's Kindly Tenants of Lochmaben "possess on tenures, to all intents and purposes, as available to them and as indefeasible as feus"; and that they are the proprietors of the subjects occupied by them according to every criterion by which property can be ascertained. The Inner House adhered, for the reasons stated by the Lord Ordinary.

Accordingly it is admitted and is beyond question that in respect of their lands the Kindly Tenants are properly entered in the Valuation Roll as proprietors thereof. The present case, however, is concerned with rights of fishing for salmon in the River Annan over a stretch some four miles in length, which are exercised, as the case finds, by the Kindly Tenants in the whole of the said stretch. Other individual proprietors, holding, one assumes, by virtue of grants from the Crown, also have the right of fishing for salmon in their respective parts of that stretch of the river. Accordingly one has the strange situation that there are many Kindly Tenants, each of whom exercises the right of fishing for salmon in these four miles of the river, and there are other individual proprietors who have the right of fishing for salmon in some part or parts of these four miles.

The right of the Kindly Tenants to fish for salmon in these four miles of the river is not mentioned in any of the old cases, and the appellants maintained that the Assessor had not discharged the onus of establishing with sufficient precision the exact nature of the right, so that it could be determined whether it was heritable and should enter the Roll. Now it must be remembered that we are here dealing with the quite exceptional case of holdings which by their nature and origin are not defined in any written grant. In such a case, when it is found as a fact that the Kindly Tenants have exercised this right of fishing from time immemorial, and when nobody questions the existence of the right, it must be held that they are the proprietors of it. It is so at any rate for the purposes of the Valuation Roll.

Now, the right to fish for salmon is in the law of Scotland a separate heritable tenement. I have no doubt that in succession it descends to the heir and not to the executor. I therefore hold that for the purpose of the Valuation Roll each of the Kindly Tenants of the four towns is the proprietor of this right of fishing in the River Annan a right which falls to be entered in the Valuation Roll as lands and heritages.

Certain of the Kindly Tenants have formed themselves into an Association which administers and manages the fishings for behoof of its members. The Association issues or sells permits enabling the holders to fish in this stretch of the river, from which practice in the years 1953 and 1954 some hundreds of pounds sterling have accrued to the Association. The Association does not account to the individual members for this revenue. Credit balances in its hands are dedicated to stocking the river, repairing the banks, fences and stiles, assisting in paying a river-watcher and generally maintaining the fishings.

Three 11 questions then arise:—(1) whether the right of fishing, exploited in this manner, can be the subject of an entry in the Roll separate from the right of fishing held by each of the Kindly Tenants, (2) whether in the law and practice of valuation the Association, per the secretary, has been rightly entered in the Roll as proprietor, and (3) whether, if that be so, the gross annual value to enter the Roll should be £161, the Assessor's valuation, or £30, the figure to which the Committee reduced the Assessor's valuation. On these questions I have had the advantage of reading and considering the opinion which Lord Sorn is about to deliver. I agree with it, and wish only to add a word about the difficult question whether the right of fishing for salmon, exploited in this manner by the Kindly Tenants in combination, can be the subject of an entry in the Roll separate from the rights of fishing for salmon enjoyed by each of the Kindly Tenants who form the combination. Here is a heritable subject which, as exploited by the the Kindly Tenants in combination, has proved to have a large annual value. Somehow that annual value should enter the Roll, unless there is something in the law of valuation which forbids that being done. Section 1 of the Valuation Act of 1854imperatively prescribes that the annual value of the whole lands and heritages within the county or burgh shall enter the Roll. If a separate entry were made in the Roll for each Kindly Tenant's right of fishing for salmon, the annual value earned by them in combination would have to be reflected in the annual, values of the individual fishings. This would lead, I apprehend, to an alteration in the constitution of the Association, for I cannot suppose that the individuals composing it would continue to devote the whole annual revenue to the service of the fishings and pay out of their own pockets the rates on that revenue as reflected in the valuations of their individual rights of fishing for salmon. On the other hand, if the Association, per its secretary, is entered as the proprietor of the right of fishing for salmon, as exploited, it will have to meet the rates before it has any surplus revenue to devote to the service of the fishings. The question is merely one of method, for in one way or another this annual value should enter or be reflected in other entries in the Roll. I think we should proceed on the reality of the situation. The fishings of all are being exploited by all in combination so as to produce an annual value. They should enter the Roll as they are in fact exploited, for it is in that way that they have this annual value, and there is nothing in the law of valuation which prohibits us from taking this course.

The appeal will be dealt with as Lord Sorn suggests.

LORD SORN .—The King's Kindly Tenants of Lochmaben are a unique body and we were given an account of their history, so far as that is known, in the course of this interesting debate. I feel it unnecessary, however, to add to what your Lordship has already said on this subject. So far as the right of a Kindly Tenant in his land is concerned, I think we must hold it to be settled as a matter of law by the case of Marquis of Queensberry v. Wright that, while his tenure is not feudal and yet not truly allodial, he has a right which amounts to full proprietorship. What we are concerned with in the present case is the right of salmon fishing in a certain stretch of the River Annan which each Tenant enjoys. As regards that right, we have conducted no investigation into records and documents with a view to ascertaining its nature and origin, and so I am not prepared to attempt a final definition of that right as a matter of law. We are concerned only with valuation and the first two questions we have to consider are whether the right of fishing is a land and heritage which has to be valued and, if so, whether it is a proper subject for separate entry in the Roll. In considering this, we must confine our regard to the facts as they are stated in the case. From this source it appears that the right is one which each and all of the Tenants have enjoyed from time immemorial. It is not suggested that the right is open to challenge and we must treat it as a perpetual right. So far as exercise of the right is concerned, it is exercised by each of the Tenants pro indiviso with the other Tenants and with those ordinary feudal riparian proprietors whose titles include a grant of salmon fishing. I cannot doubt that a right such as this falls to be valued and included in the Roll in one way or another.

The next question is whether it can be separately valued; that is, whether it can be made the subject of an entry separate from the Tenant's land. If what the Tenants enjoyed was an ordinary right of salmon fishing derived from a feudal grant, there would be no doubt about the propriety of a separate entry. A feudal estate of salmon fishing, whether a sole or a pro indiviso estate, is a distinct thing and can be dealt with as a separate land and heritage. If the right of a Tenant corresponded in all respects to the right of a feudal proprietor of salmon fishing, it would be a simple and natural step to say that it too could be separately entered. But there is one respect in which the Tenant's right does not correspond. A feudal estate of salmon fishing, being a separate estate, is something which the proprietor can sever from the lands and alienate by itself if he chooses to do so. The Tenant's right, on the other hand, so far as our information goes, cannot be severed and could not be alienated by itself. The right runs with the land. This opened the door to the argument that the proper way to regard the right was as a pertinent of the land and as something which could only be valued and enter the Roll together with the land. The argument was developed by counsel for the Tenants in a logical and convincing manner, but I am not satisfied that it is sound. To begin with, I doubt whether this right is satisfactorily described as a pertinent of the land. I think it is more accurate to say that it is a right, having the attributes of a heritable right, which runs with the lands. But, however that may be, there is no inflexible rule in valuation law and practice which in all circumstances prevents a part or pertinent of heritage, when that part or pertinent is separately exploited, from being treated as a separate entry, although legally the part or pertinent could not be severed from the principal heritage. We have an example of this exceptional kind of entry in the case of Lord Herries, in which the proprietor of salmon fishings in that capacity enjoyed the right under a local fishery statute to certain payments from persons using nets to catch white fish and in which a separate entry of "fishings" in respect of these payments was approved. A coal bing which has been sold, though still pars soli as a matter of law, may be entered separately from the land on which it is situated—Broomhouse Brick, Co. v. Assessor for Lanark —and there is some reason to think that, in practice, trout fishings which have been let are in some cases separately entered. In the present case it seems to me that the estate possessed and enjoyed by the Tenants, although not in all respects identical with a feudal estate of salmon fishing, is capable of being made a separate entry and of being valued apart from the lands with which it runs.

The next objection was to the entering of the Royal Four Towns Fishing Association as proprietor. Even if it had to be conceded that a Tenant's right of fishing should be valued, either with the land or as a separate entry, the argument was that the proper person to be entered as proprietor was the Tenant himself and that there was no warrant for entering the Association. The competency of the entry depends upon whether the Association can be brought within the extended definition of the word "proprietor" in section 42 of the Act of 1854, viz.:—

"the word ‘proprietor’ shall apply to liferenters as well as fiars, and to tutors, curators, commissioners, trustees, adjudgers, wadsetters, or other persons who shall be in the actual receipt of the rents and profits of lands and heritages."

An initial point was taken to the effect that this Association, not being incorporated, was not a "person" and so could not be a person in receipt of the rents and profits. The point is a technical one and seems to me to have no real substance. The Assessor did not laboriously append the names of all the members but he did append the name of the secretary and I think we must treat the Association as occupying the position of a "person" within the meaning of the definition. The broader point taken was that, in the circumstances disclosed in the case, it could be seen that the Association was not a person "in actual receipt of the rents and profits" in the sense of the definition. What the definition was meant to cover, it was argued, was someone who for one reason or another had ousted the proprietor, or had come in his place, and was in receipt of the whole rents and profits of the subjects. For administrative simplicity and for the surer collection of rates the Assessor was empowered to treat such a person as proprietor. The definition, it was said, was intended to meet the case of a proprietor who had ceased himself either to use the subjects or to collect revenue from them. Here, it was said, the Kindly Tenants had not been entirely displaced by the Association and still to some extent did, or could, enjoy the subjects. They had not given up their right to fish in the river themselves and it was not explicitly stated in the case that they had given up their right to sell permits personally. Suppose the owner of a valuable fishing authorised his estate factor to issue from time to time a few permits on payment, could it be suggested that this constituted the factor proprietor within the meaning of the definition? It was this kind of relationship, so ran the argument, that existed between each Kindly Tenant and the Association. The Tenant, it was contended, remained proprietor for the purposes of the Act and, if he derived any profit from the Association, that, no doubt, might be a relevant consideration in arriving at the value to be entered against his name in the Roll.

To evaluate this argument we must consider what the Association is and what it does. The findings in the case are not exhaustive and we do not know what the declared purpose of the Association is or the terms of its constitution, or even whether it has the one or the other of these things. We only know that it has been in existence for some forty years and that it does certain things. It is found in the case that the Association "administers and manages the fishings for behoof of its members, the said Kindly Tenants." It is further found that this management consists of selling permits (£396 in 1953 and £433 in 1954) and in using the money thus obtained to maintain the value of the fishing by stocking, providing a watcher, repairing banks and so on. In the past income and expenditure may have more or less balanced each other, but, in the two years for which accounts have been produced, there has been a substantial surplus. This is all we know about the Association and it can certainly be said that there has been no formal denudation by the Tenants of their rights in favour of the Association. But what is the substance of the matter? It seems to me that the substance of the matter is that, from no doubt praiseworthy motives, the individual Tenants have pooled their rights and handed them over to the Association. They have, as I read the findings, put it out of their power individually to sell permits and all that they retain is their individual right to fish. In a situation like this, is the Assessor entitled to treat the Association as the person "in the actual receipt of the rents and profits"? I think he is. The question is not one which can be decided on general principle and each case must turn upon its own circumstances. In this case, it seems to me that, in the way the Kindly Tenants have gone about their affairs, they have put the Association in their place and that, for the best exploitation of their joint rights, they have made the Association the person who is in actual receipt of the rents and profits of the subjects. The proper person to appear in the Roll as proprietor, accordingly, is the Association and the proper value is the value to that so-called proprietor. It may be that the individual right of fishing reserved from the Association is a thing of annual value, but that is something we are not concerned with. If the Assessor chooses to enter the Association as being in receipt of the actual rents and profits, he cannot make another entry in the true owner's name in respect of the same subjects and he just has to lose this value. It is all a question of circumstances and degree, but, in the present case, I have no doubt that the purpose and effect of the formation of this Association was that it should come in place of the individual Tenants, not as a mere agency, but as a body to which each had devolved the exploitation of his right of fishing. It follows from this that the Assessor was entitled to enter the Association as "proprietor" and that the argument to the contrary fails.

This leaves only the question of the amount of the valuation. The method employed by the Assessor does not seem to fall into any recognised pattern but, in the absence of any detailed argument about it, I prefer to express no opinion as to its soundness. The situation we have to face is that it is the only reasoned valuation before us. When the case was before the Committee it would seem that the appellants confined themselves to the argument that they should not be entered in the Roll at all. No challenge of the method of valuation seems to have been made and no counter-proposals seem to have been put forward. In that situation the Committee reduced the valuation from £161 to £30. No reason for the reduction is given by the Committee. If there had been findings of fact in the case which could explain it, or if the Committee had supplied us with reasons for making the reduction which they did, we might have been able to leave their figure undisturbed. But, as it is, the Assessor's valuation figure was the only one in the field and the Committee have given us no reason for not accepting it; this means that, so far as this year is concerned, the Committee's decision must be reversed and the Assessor's figure restored. As regards future years, the question of the proper method of valuation, and the proper figure, is an open question.

LORD HILL WATSON .—I agree with your Lordships that on the facts stated in this case the right which the King's Kindly Tenants enjoy of fishing for salmon in the River Annan is a heritable right which is a suitable subject for entry in the Valuation Roll, and that it falls to be entered separately from the entry relating to their land.

The Assessor has entered as proprietors for fishing in the River Annan the Royal Four Towns Fishing Association, per W. Graham, Secretary, 16 Greenhill Road, Hightae. The Association, which we were informed at the hearing was formed in 1909, comprises most, but not all, of the Kindly Tenants. The charge levied by the Association for a permit for the duration of the fishing season is at present £1, Is., but the Kindly Tenants fish free of charge. The Association administers and manages the fishing for behoof of its members. The Association is not run for purposes of profit. Credit balances have been expended in prior years and are intended to be expended in future years in stocking the river, repairing the banks, fences and stiles, assisting in paying a river-watcher and generally maintaining the fishings. The Association is an unincorporated society and in law has no persona separate from its members. There is no finding in fact that it has a constitution. On the facts as set forth in the case the Kindly Tenants still exercise their right to fish for salmon and have not divested themselves of this right by forming the Association. On these facts it appears to me that the Association is merely an administrative body acting on behalf of the members and for their behoof. Counsel for the Assessor founded his contention that the entry of the Association as proprietors in the Valuation Roll is correct in law on the extended definition of "proprietor" in section 42 of the Lands Valuation (Scotland) Act, 1854, which is as follows:—

"The word ‘proprietor’ shall apply to liferenters as well as fiars, and to tutors, curators, commissioners, trustees, adjudgers, wadsetters, or other persons who shall be in the actual receipt of the rents and profits of lands and heritages."

Counsel for the Assessor contended that the Association were in receipt of the money received from the sale of permits and were, therefore, in actual receipt of the profits of the salmon fishings. This definition is in very wide terms. It has been decided that in ascertaining a proprietor the Assessor is not concerned with questions of title. Lord Justice-Clerk Hope in Hay v. Edinburgh Water Co. (at p. 1246) says:

"Proprietor he may not be. Feudal title he may not have, and may never be in a condition to demand. Proprietor in questions with others, it may be that law could not hold or describe him. His possession may be conditional—it may be anomalous. It may be such as to admit of assessment on another for the surface. In short, all difficulties are cut short, and all distinctions disregarded, and the statute declares that ‘owner shall apply to (significant terms) persons in the actual receipt of the profits of land.’"

Lord Kyllachy in Young & Sons v. Assessor for Peebles (at p. 581) says:

"It is quite true that the Act contains that comprehensive definition, and so brings in all persons who are apparent owners, in possession as owners, without reference to the merits or demerits of their title,"

which passage was quoted with approval by Lord Hunter in Assessor for Ross and Cromarty v. Campbell, at p. 334. In my opinion, where there is an owner who is known to the Assessor and who is actively enjoying the heritable subjects, the Assessor should enter this person as the proprietor in the Roll, notwithstanding that there may be some other person who, if the Assessor was unaware of the true owner, might be brought within the terms of the definition. The words of the definition cannot be taken absolutely literally. Counsel for the Assessor was constrained to admit that some limitation must be placed upon the words of the definition. If a proprietor of salmon fishings instructed his factor to issue permits and to receive payment therefor rather than do it himself, it was conceded that it would be improper to enter the factor as "proprietor" in the Valuation Roll, although he would be handling the money. Three or four or more proprietors, who between them owned the whole fishing in a stretch of a river, might agree for matters of convenience that the factor of one of them should issue permits which would allow the holders to fish over the whole stretch of the river owned by the several proprietors taken together. In this case I do not think the Assessor would be entitled to enter the factor as the proprietor of the fishings, but that the proper entry would still be the individual proprietors, particularly if these proprietors still exercised their right of fishing. We were informed that the number of Kindly Tenants who were members of the Association was about fifty, but, in my opinion, this makes no difference to the principle involved.

Counsel for the Assessor founded upon the fact that the Kindly Tenants had agreed that the proceeds from the issue of permits should be expended upon the river for the benefit of the fishing and maintained that in this way the Kindly Tenants had given up their personal claim to the proceeds of the permits and had destined these proceeds for the benefit of the fishings as a whole. In my opinion, what the Association do with the proceeds of the permits on the instructions of the Kindly Tenants is irrelevant in considering the question whether or not the Association should be entered in the Roll as proprietors.

In my opinion, the proprietors of the fishings still remain the Kindly Tenants notwithstanding the formation of the Association, and the entry of the Association in the Valuation Roll cannot be supported in law and should be deleted.

Since I have reached the conclusion that the entry should be deleted, I do not propose to express any opinion as to the proper method of ascertaining the value of the fishings enjoyed by the Kindly Tenants which, in my opinion, fall to be entered in the Valuation Roll.