Scottish Court of Session Decisions

The Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49), sec. 26 (3), enacts—“A person shall not be held an existing yearly tenant or qualified leaseholder under this Act in respect of—( d) any land being a market garden within the meaning of the Agricultural Holdings (Scotland) Act 1908, or … ( f) any land which is not a holding within the meaning of the Agricultural Holdings (Scotland) Act 1908. …”

The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), sec. 35 (1), enacts—“In this Act, unless the context otherwise requires—… ‘holding’ means any piece of land held by a tenant which is either wholly agricultural or wholly pastoral, or in part agricultural and as to the residue pastoral, or in whole or in part cultivated as a market garden, and which is not let to the tenant during his continuance in any office, appointment, or employment held under the landlord. ‘Market garden’ means a holding cultivated, wholly or mainly, for the purpose of the trade or business of market gardening. …”

John Yeaman, solicitor, Alyth, as curator bonis of Miss Agnes Margaret Moncur, appellant, being dissatisfied with an Order of the Scottish Land Court pronounced in an application presented on 13th September 1913 by Adam Grewar, Corsehill, Blairgowrie, respondent, for an order. (1) that he was entitled as from the term of Martinmas 1912 to exercise the rights of a landholder in and relating to the holding at Knockie. Hill, Blairgowrie, then held by him on a written lease which expired at the said term, and (2) fixing a first fair rent for the said holding.

The Case stated—“… 2. The said John Yeaman lodged answers in which he objected to the competency of the said application on the grounds, inter alia, (1) that the land to which the application related was a market garden within the meaning of the Agricultural Holdings (Scotland) Act 1908, and was therefore excluded from the operation of the Small Landholders (Scotland) Act 1911, by section 26 (3) ( d) of the last-mentioned Act; (2) on the assumption that it was not a market garden within the meaning of the Agricultural Holdings (Scotland) Act 1908, that it was not a holding within the meaning of that Act, and was therefore excluded from the operation of the Small Landholders (Scotland) Act 1911, by section 26 (3) ( f) thereof; and (3) that the applicant was not a qualified leaseholder as defined by section 2 (1) (iii) of the Act of 1911, in respect that he did not by himself or his family cultivate the holding in the sense of that sub-section. …

3. The facts admitted or proved were as follows:—(1) By lease dated 5th and 12th November 1900 the late William Japp, solicitor, Alyth, then curator bonis for the said Agnes Margaret Moncur, let to the said Adam Grewar at the yearly rent of £51, 5s. for the space of twelve years from the term of Martinmas 1900 a piece of ground belonging to the said Agnes Margaret Moncur, situated near Blairgowrie, and known as Knockie Hill, measuring 10 acres 65 poles or thereby. The said lease contained a clause in the following terms—‘It is hereby specially stipulated and agreed that the said land hereby let is not let and shall not be treated as a market garden under the Market Gardeners Compensation (Scotland) Act 1907, and the said tenant hereby accepts this let on that express condition as an agreement betwixt him and the landlord, any law or practice to the contrary notwithstanding, and in particular it is hereby agreed that the tenant thereof under this lease shall not at its termination possess any rights of compensation or removal conferred upon him by the aforesaid Act or any of such rights conferred otherwise upon market gardeners … Declaring always (notwithstanding any provision hereinbefore expressed) that no objection will be offered to the said Adam Grewar cultivating fruit and vegetables on the land hereby let or any part thereof if he be so minded;’ (2) The applicant occupied the land let to him by the foregoing lease from the term of Martinmas 1900, but by feu-charter, dated 4th February 1902, the late Mr William Japp, solicitor, Alyth, who was then curator bonis foresaid, feued to the applicant 60 poles out of the said piece of ground, making the area held under the lease 10 acres 5 poles as from Martinmas 1901. The applicant occupied the said restricted area from the last-mentioned term down to the term of Martinmas 1912, when the lease expired, at the reduced rent of £49, 8s. 2d. … (3) During the whole period of the lease the applicant used the said holding of Knockie Hill for the purpose of growing raspberries. The entire holding is planted with raspberry bushes permanently set out. The applicant disposes of his raspberries mainly by selling them direct to jam-makers and sometimes by selling them outright to fruit dealers. He has never consigned them to commission agents for sale on his behalf. The applicant resides with his wife in a house in

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the burgh of Blairgowrie. That house is situated within two miles of the holding of Knockie Hill. The applicant grows fruit on three other pieces of ground in the neighbourhood of his house, viz., ( a) On 12 1 4 acres belonging to himself which were formerly rented at £46, 17s. 6d.; ( b) on 8½ acres of glebe land, for which he pays an annual rent of £25, 10s.; and ( c) on 2 1 2 acres in the burgh of Blairgowrie, for which he pays an annual rent of £15, 15s. The applicant sells no fruit other than that grown on these holdings, except that he has had at times to buy in fruit to complete his contracts on account of shortages in his own crop. (4) The applicant devotes his whole time to growing fruit on said pieces of ground and selling the fruit grown there, and he has no other occupation. He personally purchases all the manures, canes, wires, stakes, &c., and disposes of the produce. The manures are applied by his foreman and workpeople strictly according to his instructions. During the fruit harvest the applicant is of necessity often absent from the holding in connection with the disposal of the crop. His time is occupied in attending to correspondence and telegrams regarding sales and dispatch of fruit. He personally superintends the dispatch of all his fruit to his different customers. He assists in the loading of the fruit barrels on the carts, and visits the railway station daily with regard to his consignments, and to arrange for the proper return of his empty barrels. During that period the foreman superintends the pickers, and has power to engage them and to dismiss them if unsatisfactory. These pickers are always paid by the applicant personally or by his wife. The applicant, although up in years, still takes part in the manual work of cleaning the ground, &c., but most of his time is necessarily taken up in superintending his hired labourers and in attending to sales, &c., as already mentioned. The applicant has no family, but for many years a niece resided with him and assisted him in the work. (5) The greater part of the permanent improvements on the holding have been provided or paid for by the applicant without receiving from the landlord any payment or fair consideration therefor.”

The Order pronounced by the Scottish Land Court was—“Repel the objections stated in the answers for the respondent: Find and declare that the applicant is a landholder within the meaning of the Small Landholders (Scotland) Acts, 1886 to 1911, in and of the holding specified in the application; and having considered all the circumstances of the case, holding, and district, including any permanent or unexhausted improvements on the holding and suitable thereto, executed or paid for by the applicant or his predecessors in the same family, have determined, and do hereby fix and determine, that the fair rent of the holding is the annual sum of thirty-three pounds sterling: Find the applicant entitled to expenses: Modify the same to the sum of five guineas, and decern.”

Note.—“Adam Grewar, the applicant, became tenant of this holding at Martinmas 1900 under a lease which expired at Martinmas 1912. Part of the land so let was feued to the applicant as a site for buildings in February 1902. The area of the holding after deducting the portion feued is 10 acres or thereby, and the present rent is £49,8s. 2d. By the terms of the said lease the applicant bound himself to ‘cultivate the land in a husbandlike manner according to the rules of good husbandry as recognised and practised in the district,’ it being expressly provided that no objection should be offered to the tenant's cultivating fruit and vegetables on the land let or any part thereof, but not so as to impoverish or exhaust the land. It was specially provided and agreed ‘that the land hereby let is not let, and shall not be treated as a market garden under the Market Gardeners' Compensation (Scotland) Act 1897.’ The land is and has been prepared for fruit growing and worked as a fruit farm since the beginning of the lease. There is no dispute that this holding satisfies the conditions of the Act of 1911 so far as limits of rent, area, and residence of the applicant within 2 miles are concerned. But it was argued that this land is not a ‘holding’ within the meaning of the Act on four separate grounds—… ‘2. That as the land is appropriated to growing fruit, particularly raspberries, “fruit growing” is not cultivation within the meaning of the Act of 1911. 3. That the land is wholly a market garden within the meaning of section 26 (3) ( d) of the Act of 1911, and therefore excluded from the operation of the Act.…’

2. The second objection is that fruit growing is not cultivation of land within the meaning of the Act of 1911. The argument is that cultivation should be limited to growing grain, potatoes, turnips, and the like.… We therefore see no ground why in section 2 (ii) and (iii) we should arbitrarily narrow down the expression “cultivate” so as to exclude from the operation of the Act of 1911 this holding, or any holding, because it is used for the growth of fruit, which is now a recognised purpose of husbandry. As an illustration of its recognition as a purpose of husbandry, we may refer to Meux v. Cobley, 1892, L. J., Ch. 253.

3. In the next place it is objected that this land is a ‘market garden within the meaning of the Agricultural Holdings (Scotland) Act 1908,’ and therefore expressly excluded from the Small Landholders Acts by section 26 (3) ( d) of the Act of 1911. For the definition of a market garden ‘within the meaning of the Act of 1908’ we turn to the interpretation clause, section 35 (1) of that Act, in which ‘market garden’ is declared to mean ‘a holding cultivated wholly or mainly for the purpose of the trade or business of market gardening.’ This definition is substantially taken from the Market Gardeners' Compensation Act 1897, section 6. In both Acts the essential character of a ‘market garden’ is that it is used for the purpose of the trade or business of market gardening. The question is, was this holding cultivated wholly or mainly for the purpose of such trade or business?

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On the evidence we are satisfied that this holding was not cultivated mainly, or at all, for the purpose of such trade or business. The applicant has never carried on the trade or business of a market gardener on this holding or anywhere else. He sells the produce of his holding in order to meet expenses and rent and make a livelihood, as agricultural tenants, whether fruit growers or not, ordinarily do. He does not sell, or hold himself out as selling, his fruit to the public, on his holding or off it. It is sold usually to wholesale buyers for boiling purposes, occasionally and to a small extent to retail dealers. We are satisfied that this holding does not fall under the exclusion enacted by section 26 (3) ( f) or ( d). Until this application was presented it had never occurred to the landlord that this land was a market garden. On the contrary, landlord and tenant had, as already mentioned, specially agreed in the lease that this land was not let, and should not be treated as a market garden under the Market Gardeners' Compensation Act 1897, now repealed. That Act was passed to put market gardens in a more favourable position as regards compensation for improvements than other agricultural holdings. Market gardens were within the Agricultural Holdings Act of 1883, but were not distinctively treated. This agreement being made after the commencement of the Act of 1897, excluded this holding from the special provisions in the Agricultural Holdings Act 1908 (particularly section 29), which come in place of the Act of 1897, and specially apply only to holdings (or parts of holdings) ( a) which the parties have agreed in writing made after 1st January 1898, shall be let or treated as market gardens, or ( b) which were before 1st January 1898 in use or cultivation as a market garden, and are treated under the Act as if there had been a written agreement after that date that they should be let or treated as a market garden. A market garden, though excluded by section 26 (3) ( d) of the Act of 1911, is a ‘holding’ under the Agricultural Holdings Act 1908.

4. The next objection, viz., that the applicant is tenant of three other pieces of land in the neighbourhood, which he also uses for fruit growing, has no substance. The applicant does not claim to be a landholder or statutory small tenant in respect of these other pieces of land. Whether he might have claimed one or two under section 26 (2) depends on facts not before us. The third appears to be glebe land, and therefore excluded from the Act of 1911 under section 26 (3). There is nothing at common law or in the Landholders Acts to prevent a person from being a landholder or statutory small tenant in a holding under these Acts, and also being or becoming proprietor or tenant under any different agricultural or other tenure of other lands. If the conditions laid down in the Act of 1911 are satisfied, the tenant becomes a landholder or statutory small tenant of his holding under and by force of these Acts.”

The questions submitted were—“1. Are the subjects in respect of which the said application was made excluded from the operation of the Landholders Acts by virtue of their being a market garden within the meaning of section 26 (3) ( d) of the Small Landholders (Scotland) Act 1911? 2. In the event of the preceding question being answered in the negative, are the said subjects excluded from the operation of the Landholders Acts in respect that they do not constitute a holding within the meaning of the Small Landholders (Scotland) Act 1911? 3. On the facts above stated were the Land Court entitled to hold that the applicant by himself or his family cultivated his holding within the meaning of section 2 (1) (3) of the said Act?”

Argued for the appellant—This was a market garden, and was excluded from benefiting by the provisions of the Small Landholders (Scotland) Act 1911 (1 and 2 Geo. V, cap. 49) by section 26 (3) ( d). The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64) explained what a market garden was in section 35, and conferred certain rights on the market gardener by section 29. Schedule III showed what market gardening was by showing the operations for which compensation could be obtained by market gardeners. Judged in all these ways this was a market garden, and the stipulation in the lease as to compensation proved that also. In the case of Bishop v. Johnston, C.S., 9th June 1915, agricultural and market gardening uses were clearly distinguished, because the Sheriff had allowed two years in which to bring land back to agricultural uses again, and the Second Division of the Court of Session altered the time to one year, otherwise acquiescing in the decision. If, however, it, were held not to be a market garden, still it did not come within the Act, for the holding was not “cultivated.”

Argued for the respondent—The definition in section 35 of the Agricultural Holdings (Scotland) Act 1908 ( cit.) must be read along with section 29 (1) and (2). A holding was not a market garden unless it came under the privileges given to market gardens under the latter section. The conditions in sub—sections 1 and 2 of section 29 of the 1908 Act did not apply to this holding, and in any case the agreement between the parties was that it was not to be treated as a market garden. Again, a market garden should be the equivalent to a private garden, but the land in question did not bear the faintest resemblance to a private garden either in appearance, cultivation, or produce. Variety of things grown was of the essence of a garden— Purser, 18 QBD 818. In Meux v. Cobley, [1892] 2 Ch 253, Kekewich, J., described how market gardens grew up near cities, and the description had no application here. Husbandry was equally applicable to a market garden as to a farm. Agriculture, horticulture, and forestry were three distinct things, none of which should be held to include the other without express provision— Gilchrist v. Assessor for Lanarkshire, 1898, 25 R. 589, per Lord Stormonth Darling, 35 S.L.R. 663. The

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land not being a market garden was cultivated and formed a holding.

At advising—