Scottish Court of Session Decisions

On 9th May 1911 A. D. Forbes Gordon of Langlee and Greenknowe, liferent proprietor of the farm of Gordon East Mains, Berwickshire, pursuer, brought an action against Alexander Hogg, farmer, the outgoing tenant of the farm, defender, in which he craved the Court “to find and declare that the defender, as outgoing tenant foresaid, … is bound either ( First) to sow down and harrow and roll in, in so far as not already done, with his waygoing crop upon said farm and others upon that break which in the year 1910 was in fallow or turnips, the usual kind and quantities of grass and clover seeds either supplied by himself or by the pursuer or the incoming tenants as the defender may elect, and upon payment by the pursuer or incoming tenants after mentioned of fair and reasonable remuneration for all additional work and all expenses occasioned thereby; or alternatively, ( Second) To grant all necessary facilities and access for the pursuer or James Haliburton and Ralph Haliburton, both farmers, Raecleuch, near Lauder, incoming tenants of said farm and others, and his or their servants, to sow, harrow, and roll in the same upon said break in so far as not already done.”

The lease, inter alia, provided—“With respect to the management and cropping of said lands, the said Alexander Hogg binds and obliges himself and his foresaids to labour, cultivate, and manure the same in all respects agreeably to the rules of good husbandry, and particularly without prejudice to said generality to farm and manage these parts of said lands that are arable by at least the five-shift rotation thus to have in each year not less than one-fifth thereof in old grass, and not more than one-fifth in each of the following crops, videlicet:—Young grass, turnips or bare fallow, white crop after grass and white crop after turnips or fallow, declaring that no two white crops shall succeed each other.”

The pursuer pleaded, inter alia—“(1) The defender being bound to labour and cultivate said farm in accordance with the rules of good husbandry, and separatim to preserve and maintain the rotation of cropping thereupon, and having failed to implement said obligations or either of them as stated, decree should be granted as craved. (2) The defender being bound in accordance with the common law and the custom of the said farm and surrounding district to adopt one or other of the alternatives concluded for, and having refused to implement same, decree should be granted as craved.”

The defender, inter alia, pleaded—“(1) The defender not having failed to implement any of the obligations incumbent upon him as tenant of the said farm either under his lease or at common law, decree of absolvitor should be pronounced, with expenses.”

On 15th July 1911 the Sheriff-Substitute ( Macaulay Smith) pronounced the following interlocutor:—“ Finds in fact (1) that the defender under a lease of fifteen years was tenant of the farm of Gordon East Mains down to Whitsunday 1911 as to houses and grass; (2) that about one-fifth part of these subjects, now under white crop, is not to be vacated by him till the separation of said crop; (3) that in or about the month of April 1911 the defender was requested by pursuer either himself to sow, or to grant facilities for his successor the incoming tenant to sow, grass seeds along with said crop of corn in order to provide young grass for said incoming tenant, and

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at same time preserve the rotation of cropping; (4) that defender, after having permitted a portion of said ground to be sown by his successor, refused to allow the remainder to be sown except upon the granting to him by the incoming tenant of certain conditions which, inter alia, included a reference to arbiters; (5) that in consequence of defender's refusal a portion of said subjects consisting of about 41 acres is still unsown with grass seeds; (6) that under his said lease the defender was bound to observe the rules of good husbandry and to follow a regular rotation of crops known as the five-shift rotation; (7) that there is no clause in said lease explicitly binding the defender to sow grass seeds as described, nor reserving to the pursuer the right to permit anyone else to come upon the subjects to do so; (8) that in agricultural districts generally there is a practice or custom proved to exist under which sowing of grass seeds with a waygoing crop is carried out either by the outgoing or incoming tenant by arrangement between themselves; and (9) that the defender, in terms of some form of arrangement with his predecessor in the lease, was allowed under certain conditions to sow grass seed with his predecessor's waygoing corn crop: Finds in law (1) that the defender is not bound by said practice or custom either himself to sow grass seeds as described or to permit his successor in the lease to do so; and (2) that he is not bound to do so either by the fact of his having himself had access at the beginning of his lease for sowing grass seeds or by the terms of his lease: Therefore refuses the crave of the initial writ. …”

Note.—“The contention of the pursuer in this case is that the defender in connection with his occupancy of the farm of Gordon East Mains is bound, on his being granted reasonable allowance for labour and for any incidental expense incurred by him, to sow down, harrow, and roll in grass seeds upon approximately one-fifth part of the arable subjects comprising said farm, and that in conjunction with the sowing of his own waygoing corn crop on that portion; or alternatively, to grant all necessary facilities for the same being done by the pursuer or by incoming tenants.

The reasons stated by pursuer for this obligation on the defender are that (1) the defender is bound so to act by the terms of a lease which the pursuer avers is held by defender subject to the right of entry on the part of the pursuer and incoming tenants for the purpose above stated; (2) in virtue of the necessary and invariable custom to that effect used in connection with this farm and surrounding district in farm outgoings; and (3) in any event in respect of defender having claimed from his predecessor in said farm as outgoing tenant under a lease in similar terms to his own one or other of the alternatives stated for sowing grass seeds at his own entry.

Consequent upon this reasoning, and in respect as is averred that the defender, quoad a portion of said fifth part, has refused either himself to sow or to grant facilities to the pursuer to sow grass seeds as described, the pursuer asks for declarator to the effect that the defender is bound either himself to sow grass seeds under the conditions stated on said portion still unsown, or to grant the necessary facilities to incoming tenants or their servants for doing so.

In terms of his lease which the defender entered into in 1895, he is bound to quit possession of the subjects (1) as to fallow at 1st January; (2) as to houses and grass at Whitsunday; and (3) as to the portion of arable land in dispute at the separation of the corn crop in the autumn, all in the year 1911.

Since the normal time for sowing grass seeds is admittedly long past, it will thus be evident that such a declarator as is craved can have no such practical effect as its terms suggest, but (as the pursuer maintains) it is a necessary adjunct for his success in any future action he may find it necessary to take for the recovery of damage suffered by him.

The lease of said subjects has been produced by the pursuer, and as to its terms it may be remarked to begin with that the pursuer's averment about its being held by defender ‘subject to the right of entry on the part of the pursuer and incoming tenants' for the purpose of sowing grass is merely an inference drawn by pursuer from his own propositions there-anent, since there are no such explicit terms therein contained.

The decision of the question of declarator must therefore rest either upon inferences drawn from the terms actually found in the lease, or upon the effect which the custom averred by pursuer may have upon the interpretation of the deed should it be found that the introduction of custom is justified in such circumstances. [ After examining the evidence as to “ custom” the Sheriff-Substitute proceeded]—“A lease of land intended for cultivation seems to me to be about the last form of contract to the interpretation of which custom should be applied so long as there is a possibility of making its terms clear without such an aid. It is a form of contract which is in the hands of the proprietor of the land so far as the drawing of it is concerned. It is an instrument by which he has the opportunity of reserving to himself every right, and of imposing on the tenant every obligation, necessary for the preservation of the subjects. When the proprietor has reserved every right he intends to reserve, and imposed every obligation he considers necessary then in return for the rent paid by him, the tenant is entitled to the uncontrolled possession of the subject only under any restriction as to the form of cultivation imposed by the lease. In the absence of any stipulation to the contrary he is entitled from the first to the last day of the period of his lease to the full possession of the subjects let, or to an abatement of rent for any part withheld— Munro,

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16 R. 93. The doctrine as pointed out by Lord President Inglis in the case of Munro was clearly stated by Lord Fullerton in the case of Graham v. Gordon, 5 D. 1211, in these terms—‘Rent is a matter of contract in consideration of something to be done. It is paid for possession of the subject let. If the tenant says he has not got possession, that is a good answer to the claim for rent.’ In this sense, and in the absence of a right of entry or control being specifically reserved in the lease, the dictation by the lessor to the tenant as to the sowing of any crop which is not to be reaped by the tenant or the lessor's permission to any person other than the tenant to invade the subjects for the purpose of interference with the land is an infringement of the tenant's right of possession. The landlord's remedy for the proper maintenance of his subjects lies in the common practice of inserting in the lease a clause reserving his right of entry to the land for such a specific purpose. When he fails to take such a precaution he can only blame himself if the tenant refuses to allow his land to be invaded. I have therefore come to the conclusion that what has been proved in this case in the name of custom cannot be imported so as to affect the interpretation of the rights of the lessor in this contract.

Since in the present case there is no explicit clause compelling the defender either himself to sow grass seeds or to allow his successor to do so, it falls to be considered whether the right claimed by the pursuer can be fairly implied from the only obligations imposed on the defender which are relevant to this issue, namely, the obligation to observe the rules of good husbandry and to follow the five-shift rotation of cropping. With regard to the first of these, it cannot, I think, with reason be maintained that taken by itself the sowing of two crops at or about the same time in the same land can be termed good husbandry. Such a method must from its nature husband the resources of the land less than if only one crop at a time were sown. It was fairly generally agreed that such a method contained in it at least the risk of detriment to the corn crop, and the best that could be said of it was that it was a necessary, as it was the only known expedient for preserving a specified rotation of cropping. I am satisfied, therefore, that from this obligation alone the pursuer cannot derive the right he claims. The other obligation, that of observing the five-shift rotation, especially when taken in conjunction with the fact that the defender began his lease with a portion of young grass sown in this way, is to my mind more forcible and comes nearer to demonstrating an inferential right such as is claimed. In this view of the case it was argued that even during his own tenancy the defender, seeing he began his lease at this point, should, in order to fulfil his five-shift obligation, have left off only with the sowing of the grass seeds demanded by the pursuer; and had it been quite clear that the defender got this condition of things as a right and not as a concession from his predecessor I should have been strongly inclined to hold that in such a condition of affairs the defender was under this obligation bound to sow grass seeds for his successor as a necessary part of his five-shift rotation. Here, however, the circumstances throw us back upon an analysis of the alleged ‘custom,’ since the defender maintains that in arranging with his predecessor for the sowing of his grass seeds he had to give something for what that predecessor maintained was a privilege. Such an interpretation of the proceeding is not admitted by the pursuer, but we have the admission that the defender's predecessor's lease contained no compulsory clause, the evidence of the defender that Mr Allan informed him after the matter had been arranged that he might be thankful that he had got leave to sow his seeds, and the evidence of defender's servant to the effect that on the occasion of the sowing the operations were only allowed under unusual and difficult conditions.

The position of the defender in conducting the preliminary negotiations for sowing with Mr Haliburton is not, it must be admitted, very clear or consistent throughout. There is, however, sufficient evidence to show that some kind of a bargain of give and take was in contemplation between them at one stage of which it is evident. The defender stood upon what he considered to be his legal rights. This position of legal right, it is fair to say, was never admitted by pursuer's representatives, who, quite rightly from their point of view, refused to concede the idea of submitting the question of possible damage. Short of this they seem to have done everything in their power to satisfy the defender that they would keep him immune from loss or damage. He, however, preferred to take his own course and to make his own conditions, which, being declined, he refused to allow the sowing to proceed, and, as I have indicated, I am of opinion that, in the absence of a clause either specifically compulsory or sufficiently inferential, he was entitled to take this course.”

The pursuer appealed, and argued—The evidence showed that the five-shift rotation could not be carried out except by sowing grass seeds with the waygoing white crop. That being so, it was the defender's duty either to sow them himself or to permit the landlord or incoming tenant to do so— Purves v. Rutherford, December 3, 1822, 2 S. 59 (53); Marshall v. Walker, May 26, 1869, 1 Macph. 833, 6 S.L.R. 525; Simson's Trustee v. Carnegie, May 27, 1870, 8 Macph. 811, 7 S.L.R. 502.

Argued for respondent—There was no such duty on the respondent, for the lease did not prescribe it. Such a duty must be stipulated for in the lease, and could not arise by implication—Hunter on Landlord and Tenant, vol. ii, 630; Lyall v. Cooper, November 27, 1832, 11 S. 96, at p. 116. The five-shift rotation did not involve it, for it was expressly declared in the lease what that rotation should mean. It was enough

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for the respondent to have complied, as he had done, with the stipulations of the lease— Stark v. Edmonstone, November 28, 1826, 5 S. 45 (42).