Scottish Court of Session Decisions

The pursuer in this case was A. A. M. Welwood of Meadowbank and Garvock, who raised a summons against Robert Husband, tenant of Easter Gellet and others, in the parish of Dunfermline and county of Fife, to have it found and declared that the pursuer, as heritable proprietor of the said lands of Easter Gellet and others, has the sole and exclusive right to the game of every description which is or may be at any time in or upon or flying about the said lands, and that the pursuer has the sole and exclusive right and privilege of coursing, hunting, shooting, and killing the foresaid game; and further, that the defender has no right or title to the said game, and ought to be interdicted, &c., from killing the said game in all time coming. It appeared that there were two leases of different parcels of land, one for 999 years, and the other for 99 years. The pursuer eventually only insisted in the conclusions of his summons in regard to the lands held under the 999 years' lease.

In his condescendence the pursuer set forth that “the defender is agricultural tenant of the lands described in the first place in the summons, under a tack dated 16th June 1808, and recorded in the books of Council and Session on 23d May 1812, entered into between Robert Welwood, Esq., institute under the foresaid entail, as proprietor of said lands, and in exercise of an alleged power to that effect in the entail, on the one part, and Thomas Purves, Esq. of Lochend, as tenant, on the other part, whereby the said Robert Welwood let to the said Thomas Purves, his heirs and subtenants, the farm and lands described in the first place in the summons, and that for the space of 999 years from and after the term of Martinmas 1806; and the said Thomas Purves thereby obliged himself, his heirs, executors, and successors, to make payment to the said Robert Welwood, his heirs, executors, or assignees, of a free yearly rent amounting to 455 bolls 2 firlots 1 peck 2 1 2 lippies of oatmeal, being equivalent to 3 bolls of oatmeal at 8 stones weight per boll for each acre, and proportionally for part of an acre; and the said Thomas Purves also obliged himself and his foresaids skilfully and properly to labour and manure the lands thereby let, and to keep them in good tid and quirod, and not to run out or destroy the same, and to leave the inclosures upon the lands in a tenantable and fencible condition at the expiry of the lease; and it was by the lease further provided and declared that if one whole year's tack-duty should remain unpaid at the end of three months after the same should have become due, the tack should be void and null, provided the proprietor should within three mouths thereafter signify his intention of resuming possession of the said lands by a writing under his hand, without any declarator or other process of law; and it was declared that it should not be lawful for the said Thomas Purves or his foresaids to purge the irritancy at the bar; and the said Thomas Purves obliged himself and his foresaids to remove from the land at the expiration of the tack, and to leave the same void and redd, to the effect that the proprietor might enter thereto immediately, and that without any previous warning or process of removing, as the said tack in itself more fully bears.

The defender is tenant of the lands described in the summons in the second place, under a tack entered into between the said Robert Welwood last mentioned and Alexander Young, tailor in Limekilns, dated 9th December 1800, whereby the said Robert Welwood let to the said Alexander Young and his heirs and assignees the said piece of ground described in the summons in the second place, and that for the space of 99 years from the term of Martinmas 1800, subject to payment of the tack-duty and other conditions therein specified.

The defender, the said Robert Husband, acquired right to the foresaid two tacks by disposition and assignation dated 29th and 30th May 1843, granted in his favour by Alexander Purves, Esq., and others, the trustees of the said Thomas Purves, who had right thereto.

Notwithstanding that the said Robert Husband, who is simply agricultural tenant of the lands under the foresaid tacks, has no right to the said game, or to hunt, course, shoot, or kill the same, he, in disregard of complaints repeatedly made to him by the pursuer and by others on his behalf, has shot and otherwise killed and destroyed the said game illegally, and to the loss and damage of the pursuer; or at least the defender has threatened to interfere with and molest, and has interfered with and molested, those authorised by the pursuer to exercise the right of killing game.”

The defender stated that the persons possessing the lands under the titles mentioned in second, third, and fourth articles of the condescendence, have always exercised the sole and exclusive right of killing the game on the lands described in the summons, and that he claimed the right to kill game on the said lands, and disputed the right of any other person to do so.

He further set forth—The lands occupied by the defender are entered in the valuation roll at a sum considerably above what is paid annually by the defender to the pursuer, and the whole public burdens on the lands are assessed according to the value of the lands as so entered. The defender some years ago claimed from the pursuer repayment

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of the landlord's proportion of the burdens on the lands, but this was refused, on the ground that the defender was truly proprietor of the lands quoad the excess of their annual value beyond the amount paid to the pursuer. The defender has accordingly since then been, with the concurrence of the pursuer, entered in the county valuation roll as proprietor of the said lands, and is assessed and pays as proprietor the county rates and other burdens imposed thereon.

The pursuer pleaded:—“The pursuer, in virtue of his titles as proprietor, and, separatim, in virtue of the said titles and by the prescriptive possession of himself and of his predecessors, having the sole and exclusive right to the game on the lands described in the conclusions of the summons, is entitled to have such right declared, in terms of the conclusions to that effect.”

The defender pleaded:—“(1) The defender should be assoilzied, in respect that he is entitled to kill game on the lands mentioned in the summons, by virtue of his rights and titles thereto. (2) The defender having for some years, with the concurrence of the pursuer, been entered in the valuation-roll as proprietor of the said lands in respect of the said titles thereto, and having paid the burdens thereon on that footing, the pursuer is not entitled to decree as concluded for.”

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh 18 th November 1873—The Lord Ordinary having considered the cause, Finds and declares that the pursuer, as heir of entail in possession of the lands and estate of Garvock, including therein the lands after mentioned, has the sole and exclusive right and privilege, by himself or others whom he may depute and appoint for that purpose, of hunting, coursing, shooting, and killing the game on the farm and lands of Easter Gellet, and pertinents of the same, and lands of Bellhills of Easter Gellet, and other lands described in the conclusions of the summons, and in the lease thereof, dated 16th June 1808, recorded in the books of Council and Session on 23d May 1812, entered into between Robert Welwood, one of the pursuer's predecessors, as proprietor and institute of entail of the said lands, and Thomas Purves, Esq. of Lochend, whereby the said Robert Welwood let to the said Thomas Purves, his heirs and subtenants, the said farm and lands therein described for the space of 999 years from the term of Martinmas 1806, and that the pursuer, by himself or others authorised by him, is entitled to enter upon and traverse the said lands, and to do everything else thereupon which may be necessary for the fair and full exercise of said right and privilege: Farther, finds and declares that the defender, as tenant of the said farm and lands under the said lease, has no right or title to the game upon the said lands, or to hunt, course, shoot, or kill the said game; but without prejudice to any right which the defender may have to kill or destroy rabbits upon the said land: Interdicts, prohibits, and discharges the said defender from hunting, coursing, shooting, or otherwise killing the game upon the said lands; as also from molesting or in any way interfering with the pursuer, or any one acting under his authority, in the exercise of the said right and privilege: Farther, assoilzies the defender from the conclusions of the action so far as relates to the piece of ground of the lands of Pattiemuir, consisting of 40 falls or thereby, described in the conclusions of the summons, and descerns: Finds the defender liable in expenses; allows an account thereof to be given in; and remits the same when lodged to the auditor to tax and to report.

Note.—The question raised in this case is, whether the landlord or tenant, under a long lease of 999 years of an agricultural subject, has the right of shooting over the lands; and the Lord Ordinary is of opinion that, unless the lease confers that right either expressly or by implication to be derived from provisions beyond the stipulation for an unusual endurance of the lease, the exclusive right of shooting belongs to the landlord.

In the present case the lands referred to in the first part of the preceding interlocutor, consisting of about 152 acres Scotch, were let, and are now possessed by the defender, as an agricultural subject, and for no other purpose, as appears from the terms of the lease. The lease granted in June 1808, with entry as from the term of Martinmas 1806, was for the space of 999 years; and the tenant thereby bound himself, his heirs, executors, and successors, ‘skilfully and properly to labour and manure the lands hereby set, and to keep them in good tid and quirod, and not to run out or destroy the same, and to leave the enclosures upon the lands in a tenantable and fencible condition at the expiry of the lease.’ It is obvious from the terms of the lease as a whole that the lands were let solely for the purpose of occupation as a farm. In the case of an agricultural lease of the ordinary duration of nineteen years, it cannot be doubted that unless the landlord expressly gives the right of shooting, that right, which is inherent in his right of property, remains with him. The tenant is occupant of the lands for the limited purpose of cultivation, with that right of residence and enjoyment of the lands which his occupation as an agricultural tenant infers, but which does not include the right to kill the game on the lands. In England, the right to kill game is conferred by a lease giving the occupation of the land, unless that right be reserved; but the rule is otherwise in this country. The right of shooting does not require to be reserved in the lease. It is reserved if not conveyed—the principle being, that the right acquired by the tenant is held to be defined and limited by the terms of the contract and the purpose for which the occupation of the land is given up, viz., the cultivation of the land and the rearing of crops, or pasturing of cattle. The law as now stated has the sanction of practice for time immemorial, and has been fully explained and commented on in the recent case of Copland v. Maxwell, 7 Macph. 142, affd. 9 Macph. H. of L. p. 1. The general principle given effect to in the construction of agricultural leases in this country is stated in that case by Lord Westbury thus:—'An agricultural lease is so construed there (that is, in Scotland) as not to include, as passing to the tenant, a particular right which is not at all classed among agricultural purposes or a mode of agricultural enjoyment of a farm.’

The only quality by which the lease in the present case is really distinguished from that of an ordinary agricultural lease is the length of its endurance. It has been maintained by the defender that if due weight be given to this element, he is, as tenant for so long a period as 999 years, to be regarded as having a much more valuable right than the landlord, and is indeed substantially the

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proprietor,—the landlord's true interest being reduced to a mere annual payment in money; and that, consequently, though nominally tenant, he must be held to have the right and privilege of killing the game inherent in the proprietor. The Lord Ordinary is, however, of opinion that there is no sound principle on which the tenant's claim can be rested. The tenant, no doubt, in consideration of the rent to be paid, and if the rent be paid regularly, has a right to the occupation of the land for a very long period of time; but the mere length of time for which the lease had been granted, while it might form a very good reason in many cases for inducing the parties to arrange and contract that the right of shooting should be transferred to the tenant, cannot afford ground for holding that this is a necessary result of the contract. If a lease for nineteen years does not give that right, there is no particular period of endurance beyond that of nineteen years at which it can be said that the right must be held to be given by the landlord. If a 999 years' lease is to be held as giving the right, the same thing may be said of a 99 years' lease, or of a lease for 50, 30, or 20 years. The question of the extent of the tenant's right must, in the opinion of the Lord Ordinary, be solved by ascertaining from the lease whether the occupation and enjoyment of the land—whatever may be the period of endurance of the lease in point of time—has been given over for a limited use and purpose only, or for that complete beneficial enjoyment which a proprietor himself has, including at least the right of shooting. By the lease in the present case the land is given and taken for the limited purpose of occupation and use as an agricultural subject. Having got it for this purpose only, it appears to the Lord Ordinary that the tenant is not entitled to extend its effect by the exercise of the right or privilege of shooting, which is not incident to that purpose, and does not necessarily, or according to ordinary usage in such contracts, arise out of it. It was maintained that the tenant under such a lease was in as good a position, if not better, than a liferenter of lands who exercises the right of shooting; but the distinction between the two cases is, that a liferenter obtains possession for the full and unrestricted enjoyment of the estate, subject only to the condition that the substance of the property shall not be consumed, while the tenant's occupation is, by the terms of his contract, for a limited purpose only.

Both parties have averments on record of the possession and exercise of an exclusive right of shooting, but they concurred in asking for a decision on the legal question; and as the Lord Ordinary is of opinion that the question is really one of law, to be determined by the terms of the contract, he has decided it accordingly. It occurred to him that the action might be maintained by the pursuer on the separate ground that the estate being entailed, a previous heir of entail had no power to grant an effectual lease of shootings for so long a period of endurance; but the counsel for the pursuer stated that the pursuer desired to rest his case entirely on the terms of the contract, and not on any peculiarity arising out of the fact that the estate is held under an entail.

Both parties treated the subjects referred to in the second part of the conclusions of the action as being in no different position from the lands above specially referred to. But on referring to the lease of 1800, which has now been produced, it appears that the extent of land conveyed or let is about a quarter of an acre, and that it contains an obligation to build a house on the ground. In short, it is a building-lease. In reference to such a subject, the Lord Ordinary is of opinion that, by necessary implication, the right of shooting is given up by the landlord. The reservation of such a right is inconsistent with the nature of the subject and the purpose for which it is conveyed. The Lord Ordinary has therefore assoilzied the defender from the conclusions of the action relating to this small property.”

The defender reclaimed.

At advising—