Scottish Law Commission (Reports)

 


PART 5: MINERALS AND SPORTING RIGHTS

INTRODUCTION

5.1      At one level minerals and sporting rights have little in common. Whereas the ownership of minerals can be separated from ownership of the surface of the land, sporting rights (with the single exception of salmon fishing) cannot be so separated. In the technical language of the law, minerals are (conventional) separate tenements while sporting rights (other than salmon fishings) are not.^[1] Another difference is that minerals are corporeal and sporting rights incorporeal. Ownership of minerals means ownership of a stratum of earth whereas sporting rights confer no entitlement to a particular piece of corporeal property.^[2] Important as these differences are, however, for present purposes the resemblances are more important. Both minerals and sporting rights are reserved by implication from leases - are indeed the only significant examples of such implied reservation.^[3] Both may themselves be the sole subject of a lease. And both require to accommodate the fact that control of the surface of the land is often in other hands.

5.2      Earlier we recommended that leases of minerals and of sporting rights should both (but for different reasons) be exempt from conversion.^[4] Only reservation, therefore, need be considered further.

Reservations of minerals

5.3      An ordinary lease confers only the right to use the surface, and minerals are impliedly reserved. The landlord (or those authorised by him) has a right to work the minerals but is liable for surface damage.^[5] This implied reservation is frequently re-expressed, and glossed, in the lease itself. Express reservations were almost universal in Victorian ground leases, in much the same way as they were universal in feus of the same period. Indeed the wording is much the same as found in feus, so that the bare reservation of minerals is accompanied by ancillary rights to work (sometimes from the surface), and by provisions about compensation. Conversion cannot improve on the lease. If, as almost always, the minerals were excluded from the lease then they are excluded from the property now acquired by the (former) tenant.^[6] Sometimes the minerals will already be separate tenements, because they were reserved by the landlord's superior at the time when the land was feued or because they have been sold since. Otherwise they will become separate tenements on the appointed day, when ownership of the surface passes to the former tenant.^[7]

5.4      If the minerals were already separated at the time the lease was granted, they were not the property of the landlord and could not have formed part of the subjects let, even without a reservation. The purpose of a clause of reservation, in such a case, is not therefore to retain the minerals for the landlord but to make clear that they do not pass to the tenant. In this way a warrandice claim is avoided. If, conversely, the minerals were not already separated, the effect of a reservation is to achieve separation for the purposes of the lease - and hence, on the appointed day, for the purposes of ownership as well.

5.5      An express clause in a lease will usually provide for rights to work and payment of compensation. If the minerals were already separated, this will merely repeat the terms of the earlier separation, and indeed any innovation on those terms could have no effect on the owner of the minerals. It may be added that such terms are not real burdens (an extrinsic limitation on ownership) but rather part of the very content of the separate tenement of minerals.^[8] If, however, the minerals remained in the ownership of the landlord, the clause serves to regulate the relations of landlord and tenant for the purposes of the lease - and will continue to do so when, on the appointed day, the minerals are elevated into a separate tenement.^[9]

5.6      If the lease is silent as to rights of working or compensation, the position will be governed by the default rules provided by the general law.^[10]

Sporting rights

5.7      "Sporting rights", in the sense used here, mean the right to fish and the right to take game. An initial distinction is between the right to fish for salmon and other sporting rights.

5.8      Salmon fishings are separate tenements, that is, are capable of being owned separately from the land or river in which they subsist.^[11] More than that, salmon fishings (unlike minerals) are always separate tenements and so do not require to be separated from the land by reservation or conveyance. Instead they are treated as "land" in their own right. So a disposition or lease of a river does not carry the salmon fishings in that river by implication, any more than it would carry an adjacent field. If the fishings are not mentioned they are excluded. This assimilation of salmon fishings to land removes the need for special treatment. Either salmon fishings are included in a qualifying lease or they are not. If included, there is a change in ownership on the appointed day, in the usual way. If not included they are wholly unaffected by the conversion of the lease into ownership. Salmon fishings are not considered further in this Report.

5.9      The position of other sporting rights is different. The remaining rights of fishing affecting private rivers and lochs - "freshwater fishings" as they may be called - are not recognised as separate tenements. Nor is the right to game. Rights of this kind can be leased,^[12] or reserved from a lease. In either case the right is then separated from the land as a matter of lease. But such rights cannot be separated as a matter of ownership. As the law currently stands it is impossible for one person to own the land and another person the game or fishing rights in that land.^[13] The difficulty for our scheme is obvious. Arrangements made by way of lease cannot be replicated once that lease is converted into ownership. This affects both reservations of sporting rights to the landlord, and also leases of sporting rights. Earlier we recommended that leases of sporting rights should be exempt from conversion.^[14] The topic of reservation requires further examination.

Reservations of sporting rights

5.10      A case of 1804 (Ronaldson v Ballantine)^[15] decided that, in an agricultural lease, the right to kill and take game is impliedly reserved to the landlord.^[16] Previously the position had been in doubt and the subject of controversy.^[17] An important reason for the decision was the Act of 1621 c 31 which restricted hunting and hawking to those owning a ploughgate of land (around 50 acres), a rule which both fortified the link between game rights and ownership while at the same time disqualifying those tenants who did not happen to own other land.^[18] Ronaldson concerned game rights but subsequently the doctrine was extended to fishing for trout and therefore, by implication, to other freshwater fish apart from salmon.^[19] Most agricultural leases were granted for terms such as 19 or 21 years, but in Welwood v Husband^[20] it was held that game rights were impliedly reserved even in a lease for 999 years. It may be taken that the rule is the same in relation to fishing rights. The reserved right is exclusive in nature, and the tenant has no right to fish or to take game.

5.11      Some limitations may be mentioned. The reservation is implied only in the case of agricultural leases. Further, the right is confined to that part of the land under cultivation and does not apply to garden and recreational ground. In some leases the implied right is supplemented by an express reservation.

5.12      The topic is of limited importance for present purposes. So far as we are aware, ultra-long leases do not usually involve either agricultural subjects, or rivers and lochs; and if that is correct, few leases eligible for conversion are affected by sporting rights. This may be contrasted with the position of minerals where the reservation is virtually universal.

Preservation: in principle

5.13      In part 3 we concluded that reservations of a right which could not be constituted as a separate tenement would necessarily fall to be disregarded for the purposes of conversion of a lease. On the appointed day, therefore, the right would cease to be reserved and would pass from landlord to tenant.^[21] Nonetheless a number of factors argue for a different solution in the case of sporting rights. Such rights are the only reservation of this kind likely to be encountered in practice. Although not common in the context of ultra-long leases, the rights where they exist may be of considerable value. If they were not preserved it would be necessary to provide separately for compensation. Further, consistency with the 2000 Act also argues for preservation of sporting rights.^[22]

5.14      If sporting rights are to be preserved, the next question to consider is in what form. The obvious solution is to follow the 2000 Act and accept that sporting rights can be constituted as a separate tenement.^[23] The recognition of sporting rights as separate tenements would, however, be limited to the conversion of long leases. This is not the place to reconsider the general issue of which rights can and cannot be held separately from the land.^[24]

Preservation: a scheme in outline

5.15      Preservation could not be automatic, as in the case of minerals. The Keeper knows that minerals are always reserved from leases and on conversion can mark the title sheet accordingly. But with sporting rights his knowledge is far less sure, for reservation depends on the character of the land and hence on information which may be unavailable or, if available, disputed. In many cases the Keeper would be unable to make a confident entry on the Register. A different point is that, even where they exist in theory, sporting rights may quite often be moribund in practice. Conversion should not have the effect of reviving rights long since abandoned. If sporting rights are exercised or of value, the landlord will no doubt take the necessary steps to preserve them. Otherwise they will be extinguished on the appointed day.^[25]

5.16      Section 65A of the 2000 Act suggests a model on the following lines. The landlord draws up a notice in statutory form for preservation of a reserved right to game or, as the case may be, to freshwater fishing.^[26] After service on the tenant,^[27] the notice is sworn or affirmed before a notary public and registered in the Land Register or Register of Sasines. This must be done before the appointed day. Registration may be against the interest either of the landlord or of the tenant.^[28] On the appointed day the reserved right will then be preserved, and transformed into a (statutory) separate tenement. The landlord thus loses the land but retains the sporting rights. Thereafter the rights can continue to be held separately from the land. As separate tenements they would command their own title sheet on the Land Register,^[29] and be transferred by disposition rather than by assignation.^[30] Only the head landlord could register a notice because, sporting rights being incapable of severance, only the owner of the land can be their owner.

5.17      Sometimes the reserved right may itself have been leased out, generally on a much shorter lease.^[31] In common with other real rights, such a lease would be unaffected by the conversion of the qualifying lease;^[32] but except where a notice had been registered there would be a change of landlord. This is because the reservation would be extinguished on the appointed day, and the ownership of the former tenant would extend to the sporting rights. As already mentioned, a lease of sporting rights could not of itself qualify for conversion no matter how long its duration.^[33]

Content of preserved right

5.18      The preserved right should mirror the reservation. Sometimes an express reservation is explicit as to scope and, if so, the terms of the lease will control the terms of the preserved right. Otherwise the scope must remain a matter for the general law, discussed below.

5.19      Freshwater fish. "Freshwater fish", in the sense intended here, means any fish other than salmon. The statutory definition is well-established,^[34] and, practice varying as to which species are caught for sport, further refinement would seem unhelpful.

5.20      Game. The meaning of game is less certain. In popular speech "game" refers to those animals that are killed for sport and thereafter for the table. In legislation, however, "game" has been defined both frequently and inconsistently, and the term carries no agreed meaning.^[35] For present purposes a starting point is provided by Rankine's statement that "it has never been decided whether or to what extent the reservation [ie from a lease] goes beyond the animals enumerated in the Night Poaching Act [1828]".^[36] The animals there are hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards.^[37] Apart from hares, which are ground game, the list consists exclusively of game birds. Indeed it is close to the definition of "game bird" in the Wildlife and Countryside Act 1981, which is "any pheasant, partridge, grouse (or moor game), black (or heath) game or ptarmigan".^[38] The 1981 Act is of importance for present purposes, for it is an offence under the Act to kill any wild bird other than a game bird.^[39] This means that a bird which is not a game bird within the 1981 Act cannot usually^[40] be shot for sport - and therefore could not sensibly be treated as reserved for sport under a lease. If the definitions in the Acts of 1828 and 1981 are combined, the result is a core list comprising pheasant, partridge, grouse and black game;^[41] and to this may be added ptarmigan which appears only in the 1981 Act.^[42] Bustard, which appears in the 1828 Act but not in the 1981 Act or in other statutory definitions, should presumably be excluded on the basis that it cannot now lawfully be killed. The 1981 Act contains a further list of birds which, while not "game birds", can nonetheless be killed outwith the close season.^[43] Originally this included capercailzie, and capercailzie (which do not appear in the 1828 Act) have been held in the sheriff court to be "game" within the Game (Scotland) Act 1832.^[44] But the 1981 Act has since been amended to the effect of making capercailzie protected,^[45] and they should presumably be excluded from our list.

5.21      For particular statutory purposes the rules that apply to game in the narrow sense are sometimes extended to certain other animals killed for sport. For example the Game (Scotland) Act 1832^[46] makes it an offence to trespass on land during daytime

"in search or pursuit of game, or of deer, roe, woodcocks, snipes, quails, landrails, wild ducks, or conies …"

Similarly, the Crofters (Scotland) Act 1993 reserves to the landlord under crofting tenure a right to take, not only game in the narrow sense, but also deer, rabbits, woodcock, snipe, wild duck, widgeon and teal.^[47] But it seems improbable that the right reserved to a landlord under an ultra-long lease is so extensive, and certainly there is no authority to that effect.

5.22      Exclusivity. Normally the landlord's rights are exclusive. If the landlord can fish or shoot, the tenant cannot. But the Ground Game Act 1880 extends to any "occupier" the right to take or kill hares and other ground game.^[48] The right is then shared between landlord and tenant. The statutory right was withheld from tenants holding under leases which were already in existence on 7 September 1880 and in terms of which the right to hares was reserved to the landlord.^[49] More than 100 years later it seems undesirable to perpetuate what was obviously only a transitional arrangement. We suggest, therefore, that in the case of hares the landlord's reserved right should be subject to the rights of an occupier under the Ground Game Act. In all other cases the right to game and fishings would be exclusive.

5.23      Recommendation. We recommend that

27. (a) Where –

(i) a right to take game or fish for freshwater fish is reserved from a qualifying lease or a superior lease (whether expressly or by implication), and

(ii) before the appointed day the head landlord registers a notice preserving such right,

on that day the right should become a separate tenement in land.

(b) A right converted into a separate tenement should comprise a right of the same description, and be subject to the same terms and conditions as to its exercise and liability for damage, as specified in the lease from which it was reserved; and if or to the extent that there is no such specification, the right should comprise an exclusive right (subject to the Ground Game Act 1880) to take –

(i) hares, pheasants, partridges, grouse, black game and ptarmigan, or, as the case may be

(ii) freshwater fish as defined in s 69(1) of the Salmon and Freshwater Fisheries (Consolidation)(Scotland) Act 2003

(Draft Bill s 7 and s 68(1))

Ý
Ü   Þ

Note 1   Reid, Property paras 207–212.    [Back]

Note 2   Graham v Duke of Hamilton (1871) 9 M(HL) 98.    [Back]

Note 3   Erskine II.6.22; Hume, Lectures II, 89; Bell, Principles § 1226; Robert Bell, A Treatise on Leases (2nd edn 1805) pp 271–83 and 333–41; Hunter, Landlord and Tenant II, 195–201; Rankine, Leases pp 208–11 and 489–501. At one time the landlord's rights extended to timber and kelp, at least in leases of ordinary duration. The general principle, according to Erskine, was to deny the tenant rights "the use of which consumes the subject".    [Back]

Note 4   Paras 2.34–2.36.     [Back]

Note 5   Rankine, Leases p 209. The common law rule is re-stated by s 12(c) of the 1954 Act.    [Back]

Note 6   Para 3.31.    [Back]

Note 7   As this is an automatic consequence of separation of ownership, no provision is made in the draft Bill. The position is different in respect of sporting rights which are not separate tenements in the absence of legislative assistance. See para 5.14.     [Back]

Note 8   Reid, Property para 266.    [Back]

Note 9   If there are subleases, the reservation will appear in the head lease and its terms repeated or referred to in the subleases, including the qualifying lease. Theoretically it might happen that the clause in the qualifying lease was in different terms from that in the head lease; and in that event the latter would prevail as the clause which, being the first in time, effected the actual reservation and so determined the rights and obligations of the holder of the minerals.    [Back]

Note 10   For which see Robert Rennie, Minerals and the Law in Scotland (2001) chap 4.    [Back]

Note 11   Reid, Property paras 209, 320 ff.    [Back]

Note 12   Salmon and Freshwater Fisheries (Consolidation)(Scotland) Act 2003 s 66 (freshwater fishings); Palmer's Trs v Brown 1989 SLT 128 (game).    [Back]

Note 13   Scot Law Com No 168 paras 6.27 and 6.28.    [Back]

Note 14   Para 2.36.    [Back]

Note 15   (1804) Mor 15270.    [Back]

Note 16   See generally: Rankine, Leases pp 489–501; Lord Gill, The Law of Agricultural Holdings in Scotland (3rd edn, 1997) ch 11; Gordon, Scottish Land Law paras 9-14–9-20.    [Back]

Note 17   In the first text on leases, Robert Bell'sA Treatise on Leases, it was argued strongly that sporting rights passed to the tenant. See pp 333–41 of the 2nd edition of 1805 (the last for which Bell was responsible).    [Back]

Note 18   However, it came to be accepted that the right could be communicated by the owner to others who were not qualified under the 1621 Act. The Act was eventually repealed by the Statute Law Revision (Scotland) Act 1964.    [Back]

Note 19   Copland v Maxwell (1868) 7 M 142, (1871) 9 M (HL) 1. The right to fish for salmon is a separate tenement and is treated as if it were land. See para 5.8 above.    [Back]

Note 20   (1874) 1 R 507.    [Back]

Note 21   Paras 3.31–3.33.    [Back]

Note 22   Section 65A of the 2000 Act allows sporting rights to be preserved as a separate tenement. According to the Registers of Scotland 65 notices were registered under s 65A; K G C Reid and G L Gretton, Conveyancing 2004, (Edinburgh, 2005), pp 95–96.    [Back]

Note 23   Abolition of Feudal Tenure etc. (Scotland) Act 2000 s 65A.    [Back]

Note 24   Accordingly, following the appointed day there will be 2 categories of sporting rights held as separate tenements: those converted under s 65A of the 2000 Act and those converted under s 7 of the draft bill.     [Back]

Note 25   Under the general rule referred to above and set out in para 3.31.    [Back]

Note 26    A separate notice is required for each qualifying lease affected by the same sporting right but, where different sporting rights affect the same qualifying lease, one notice can be used. See s 8 of the draft bill and also para 4.62.    [Back]

Note 27   For service see para 4.60.     [Back]

Note 28   Para 4.64.    [Back]

Note 29   As with salmon fishings. See Land Registration (Scotland) Act 1979 ss 5(1)(a) and 28(1) (definition of "incorporeal heritable right"). The draft bill makes an appropriate amendment to the 1979 Act.    [Back]

Note 30   For this and other characteristics see Reid, Property para 208.    [Back]

Note 31   The same result occurs if A grants B an ultra-long lease in which the sporting rights are expressly granted, and B then grants C an ultra-long sublease from which the sporting rights are withheld. C then has a lease of the land and B of the reserved sporting rights.    [Back]

Note 32   Para 3.25.    [Back]

Note 33   Para 2.36.     [Back]

Note 34   Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 s 69(1). This definition was carried forward from s 24(1) of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951.    [Back]

Note 35   See eg Stair Memorial Encyclopaedia vol 11 para 802; Gordon, Scottish Land Law paras 9-02 and 9-03.    [Back]

Note 36   Rankine, Leases p 490 n 74.    [Back]

Note 37   Night Poaching Act 1828 s 13.    [Back]

Note 38   Wildlife and Countryside Act 1981 s 27(1).    [Back]

Note 39   Wildlife and Countryside Act 1981 s 1.    [Back]

Note 40   But see the discussion below in the context of capercailzie.    [Back]

Note 41   As the 1981 Act definition makes clear, heath game and moor game, both included by name in the 1828 Act, are synonyms of, respectively, black game and grouse. Another word for black game is black grouse.    [Back]

Note 42   The core list of pheasant, partridge, grouse, black game and ptarmigan is also found in the Crofters (Scotland) Act 1993 sched 2 paras 11(h) and 13 in the context of the rights reserved to the landlord under crofting tenure.    [Back]

Note 43   Wildlife and Countryside Act 1981 s 2(1) and sched 2 part I.    [Back]

Note 44   Colquhoun's Trs v Lee 1957 SLT (Sh Ct) 50.    [Back]

Note 45   The Wildlife and Countryside Act 1981 (Amendment) (Scotland) Regulations 2001 (SSI 2001/337).    [Back]

Note 46   Game (Scotland) Act 1832 (also known as the Day Trespass Act) s 1.    [Back]

Note 47   Crofters (Scotland) Act 1993 s 5(1) and sched 2 paras 11(h) and 13.    [Back]

Note 48   Ground Game Act 1880 s 1. By s 8 "ground game" is defined to mean hares and rabbits.    [Back]

Note 49   Ground Game Act 1880 s 5.    [Back]