Scottish Court of Session Decisions

In 1858 Mrs Douglas of Lochead and her husband entered into a minute of agreement with Alexander Wilson, agreeing to let to him, on a lease of 21 years, the clay field on the estate of Lochead, with liberty to work and win the said clay, and to manufacture and burn the same upon the lands; and for that purpose to erect all necessary Bheds, kilns, and other buildings, and to form a road or waggon way, &c.

After various stipulations the deed proceeded thus:—“And lastly, both of the said parties hereto bind themselves, when required by either, to execute a formal tack of the said seams of clay to the foregoing effect, containing all clauses usual and necessary.”

In 1861 Wilson applied to the defenders' agents for a formal lease. A draft of the proposed lease was forwarded to him, and was sent by him to his own agents for revisal. In revising, his agents inserted a clause as follows:—“and it is hereby further provided and agreed to, that upon the expiration of this lease, or upon its being declared at an end as after specified, the said Mrs Christian Stenhouse or Douglas, and her heirs and successors, shall be at liberty, if they shall so incline, to take the whole buildings and erections of every description, erected on the premises, with the whole machinery, at a valuation to be put thereon by two neutral men to be mutually chosen, or by an oversman to be named by such men in case of their differing in opinion; and in case the said Mrs Christian Stenhouse or Douglas, or her foresaids, shall not incline to accept of the said buildings and machinery, then the said Alexander Wilson and his foresaids shall be entitled to remove or otherwise to dispose thereof at pleasure.”

The defenders' agents declined to allow the insertion of this clause, on the ground that they were not bound by the minute of agreement to consent thereto.

James Wilson, son of Alexander Wilson, now deceased, brought this action for the purpose of enforcing his right to a lease with the clause in question.

The Lord Ordinary (Jerviswoode) held that the defenders were not bound to allow the insertion of the said clause, and dismissed the action. The pursuer reclaimed.

Clark and Thoms for reclaimer.

Watson and Asher for respondents.

After hearing parties, the Court remitted to James Melville, W.S., and David Landale, mining engineer, to examine and report upon the draft lease. The reporters reported as follows:—“We humbly venture to premise, that the rule to allow the tenant of a mineral or clay field compensation for the buildings, and for any fixed machinery he may erect, which may be taken by the landlord at the termination of the lease, is a ‘usual’ one, and has been universally conceded by us in our practice.

“And we humbly report it as our opinion, that in this case the clause set forth in the seventh article of the condescendence is aptly and properly phrased, so as to give to the tenant fair compensation for such buildings and fixed machinery as he may have erected, in the case of the lease running its appointed time, or coming to a premature conclusion by reason of the impossibility of carrying it on to profit. And we report it as our opinion, on the other hand, that the clause is or maybe of value to the landlord, as giving that party power to acquire the moveable machinery. In other respects the draft lease appears to us to be properly framed.”

The Court, in accordance with the report, sustained the claim of the pursuer.