BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> George & James Lyon v. Anderson [1886] ScotLR 23_732 (25 June 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/23SLR0732.html Cite as: [1886] ScotLR 23_732, [1886] SLR 23_732 |
||
[New search] [Printable PDF version] [Help]
Page: 732↓
[Sheriff of Aberdeen, Kincardine, and Banff.
Lease
The tenant of a market garden, after certain complaints of damage by flooding through the landlord's alleged fault, got into difficulties, and renounced the lease without making in the renunciation any reservation of a claim for damages. Held that he was barred from subsequently insisting in such a claim.
The landlord of a market garden provided a drain of sufficient capacity to carry the natural flow of water from adjoining lands belonging to him, also let, and on a higher level, through the garden. The garden was flooded through the drain on the higher lands becoming choked. Held that the duty of cleaning it belonged not to the landlord but to the tenant of the higher land, and that the landlord was therefore not responsible to the tenant of the garden.
On 27th September 1879 George & James Lyon, gardeners, agreed to lease from Mr James Anderson of Hilton, in Aberdeenshire, a piece of ground known as Westfield, on the possession of Had-again. The ground taken was to be used as a market garden. Adjoining the lands of Westfield, and on higher ground was the farm of Smithfield, belonging also to the estate of Hilton. Through the lands of Smithfield ran a stream which had been formerly used to drive the threshing-mill at Smithfield. This stream was conducted along an open ditch, but at the end of the ditch was a pipe or covered waterway which conducted the stream under a road leading from the farm-steading of Smithfield. About a year before the Lyons’ lease began Anderson had brought a new flow of water into the mill-dam from another farm belonging to him.
The Messrs Lyon entered upon occupancy in
Page: 733↓
Martinmas 1879. They occupied till 1884, in September of which year Anderson used sequestration for rent, and on 4th October they renounced the lease and removed from possession. This was an action by Messrs Lyon for £40 damages for flooding of their land through the alleged fault of Anderson. The principal item in the damages claimed was on account of a large amount of potatoes said to have been destroyed in a flood in December 1882. They stated that the pipe or covered waterway already referred to was insufficient to convey the water which had to pass down it, that in winter 1881 to 1882, on 17th December 1882, and on 17th February 1883, much damage was done them by flooding. It appeared that on 19th December 1882 the Messrs Lyon wrote to Mr Anderson's Aberdeen agents a letter in which they said—“We are sorry to have again to acquaint you with the fact that our land has been a second time since our occupancy flooded by water from Mr Donald's dam, and the very essence of the soil, and in the channels cut the whole soil itself, swept away. .. We hereby therefore assert our claim for compensation, and expect it will be favourably received.” On 19th February 1883 they wrote to Mr Anderson's agents stating that much of the finest soil had again been carried away by another flood, and that they held the landlord responsible for the damage.
The pursuers' allegations were denied by the defender, and it was averred that the defender agreed to accept the renunciation as at November 1884 on the distinct footing that all questions were thereby settled and departed from.
The letter of renunciation merely stated—“We. .. are to remove from the possession occupied by us as a market-garden at the term of Martinmas 1884.”
The defender pleaded—“(2) Assuming that damage had been suffered, the defender is not responsible therefor. (4) The questions between the parties having been settled at the pursuers' removal, and the pursuers having failed to reserve this claim at the settlement, they cannot now prefer it.”
The Sheriff-Substitute allowed a proof. The import of the evidence as to a claim for damages being made at the time of the renunciation is stated in his note.
The Sheriff-Substitute sustained the pursuers' fourth plea above quoted and found separately on the merits that pursuers had failed to prove their grounds of action, or that they had sustained damage through any cause for which defender was responsible.
“ Note.—…..I am unable to take the case out of the principle which the Court applied in Broadwood v. Hunter, Feb. 2, 1855, 17 D. 340; in Baird v. Mount, Nov. 19, 1874, 2 R. 101; and particularly in Waterson v. Stewart, Nov. 22, 1881, 9 R. 155—to the effect that the renunciation of their lease by the pursuers, even although it took the informal shape of a letter of removing, imported a discharge of all claims arising out of the missives of tack that were not expressly reserved. This suffices for the disposal of the case; and if it be a true ground of judgment, it is unfortunate that so much extraneous evidence has been collected.”
The pursuers appealed to the Sheriff, who adhered.
“ Note.—In 1879 the pursuers took from the defender a field of about ten acres, for the purpose of a market garden. It lies immediately below the farm of Smithfield, belonging to the same proprietor, and the cause of action is the damage which was done by flooding in the years 1881, 1882, and 1883.
The ground of action which is averred is that the defender failed to provide sufficient pipes and channels for carrying the water past the farm-steading of Smithfield. I doubt the relevancy of any such claim at the instance of a tenant against his landlord; at the instance of a stranger it might be different, but the considerations which attach certain duties to the ownership of property in a question with a third party, or any member of the public, have no application where the land is let on lease, or is parcelled out amongst a number of tenants all holding under the same landlord. The proprietor's obligations are then fixed by his contract, and, inter se, the tenants are liable to each other for the consequences of their own negligence in the use and management of their respective possessions. When the pursuers inspected the ground before entering into their lease they could judge of its suitability for the object they had in view. They saw how the ditches and drains were arranged, and if in their opinion something ought to be done by the proprietor to lessen the liability to flooding they should have stipulated for it. But in the absence of any such stipulation I do not see how the obligation contended for results from common law.
In the proof, however, which has been led, the point comes to be narrowed to this—there would have been no flooding on any of the occasions libelled if the volume of water could have forced its way through a covered drain which leads the ditch from the left to the right hand side of the road. The pursuers in their evidence attribute this to the drain being too small and in need of cleaning, but the other witnesses examined make it plain that the drain was large enough in point of size if the removal of the rubbish with which it was choked had been duly attended to. The flooding, in short, was caused by the negligence of the tenant of Smithfield in not periodically cleaning out the drain—at least primarily the duty was his, unless the landlord had expressly undertaken it. As I can find no evidence of this, I agree with the Sheriff-Substitute that the defender is in the circumstances not responsible. This renders it unnecessary to consider whether in the arrangements connected with the giving up of the field before the expiry of the lease it was intended to keep up the claim of damages, but I rather think the Sheriff-Substitute is right also in finding the point adversely to the pursuers.”
The pursuers appealed to the Court of Session, and argued—When an agricultural lease came to an end the tenant had a right to claim from the landlord any damage that might have happened to the subjects through his fault or negligence. Although there was no express reservation of the tenant's claim for damages in the letter of removal, still George Lyon at that time had informed the defender's agent that he was going to make a claim, and that was sufficient, along with the letters previously quoted, to bring the case within the scope of Broadwood v. Hunter. Feb. 2 1855, 17 D. 340; Hardie v. The Duke of Hamilton,
Page: 734↓
Feb. 2, 1878, 15 Scot. Law Rep. 329; Macdonald v. Johnstone, June 12, 1883, 10 R. 959. The floodings and consequent damages were due to two causes—(1) To the drains not being sufficient in size to carry off the water: (2) because the landlord did not keep them clean. Even if the fault of not clearing out the drains was the fault of the tenant, in a question with third parties the landlord was the proper person to look to for redress. Here the damage did not arise out of breaking of the contract between the landlord and tenant, but by the fault of the landlord, and therefore he was liable. The defender argued—This was not a case where the lease had gone on to its natural termination, but it had been renounced by the tenant and the renunciation accepted by the landlord, and therefore all claims by the tenant against the landlord were barred— Waterson v. Stewart, &c., Nov. 22, 1881, 9 R. 155. There was a strong presumption that if it had not been so the landlord would not have accepted the renunciation. Was there here any fault on the part of the landlord; he provided pipes of sufficient capacity to carry off the water, and if the tenant allowed them to become choked up, that was the fault of the tenant and not of the landlord? It is the primary duty of the tenant to keep the drains clear. The landlord had no responsibility for the faulty acts of his tenant— Tassie & Co. v. Magistrates of Glasgow, June 18, 1822, 1 S. 503 (N.E. 467); Weston v. Corporation of Tailors, July 10, 1839, 1 D. 1218.
At advising—
Well, some little time after, some six months or so, they raise this action for damages, but they had said nothing about their claim at the time of the renunciation. The first question is, whether the renunciation of the lease was not equivalent to a withdrawal of the claim for damages? If in the letter of renunciation there had been anything in the nature of a reservation of their claim, the case would have been quite different, but in this case there is no such reservation. The tenant having fallen into difficulty applied to his landlord to relieve him, and the landlord accepts the renunciation, and relieves him of payment of future rent. But I cannot assume that the landlord would have accepted the renunciation if it had contained any reservation of a claim for damages. I think, on the authorities, the fact of the renunciation of the lease implies renunciation of all the rights arising out of it. In all the cases quoted to us there was always some communication made to the landlord at the time of giving up the lease as to the claim for damages, but here there was no communication. I have a strong impression that the landlord would not have accepted the renunciation if such a claim had been made.
But the second serious question is this—Is the landlord responsible for the damage done to the tenants’ fields? It is certainly not proved that the drains which brought the water down from the farm of Smithfield were insufficient. They were sufficient to carry off the flood if they were kept in order, but they were not cleared out by the tenant of the superior farm. Is the landlord responsible for the negligence of his tenant? If the drains were handed over to the tenant in good order, had not the landlord discharged his duty? Should not the tenant keep the drain in proper order?
But, in the third place I have great doubt, with the Sheriff-Substitute, if any claim of damages has been proved at all. On these grounds, therefore, I am of opinion that we should affirm the Sheriff-Substitute's judgment.
But I think that there is another and satisfactory ground in which we may decide this case. I think if the tenant is to make good his claim against the landlord he must prove some fault on his part. But he has not established that the defender has committed any fault which caused the damage to the farm as arising from insufficient drains. But the insufficiency arose not from any want of capacity in the drains themselves, but from these drains not being properly cleaned out. But that is not the duty of the landlord but of the tenant.
Apart from that however, I am most disposed to put my judgment upon the ground that he has not proved any damage in point of fact.
But I concur with your Lordship as to the effect of the renunciation of the lease. The renunciation is of the nature of a compromise. Seeing that the claim had been made upon the landlord, and that he had repudiated it, parties were at arm's length, and while the landlord is making the concession of giving up the lease I cannot presume that he would have done that without receiving an equivalent, but it is not necessary to give an absolute decision on this point.
The principal claim is for damages done to the potatoes. But when the tenant means to reserve his claim for damages he must give notice to the landlord, but no such notice was given here. It would be most inequitable that a claim should now be made upon the landlord when he has no means of finding out what is the actual state of affairs, which he might have been able to do if notice had been given at the time. I think that the conduct of the tenant has been inconsistent so far as regards his claim against the landlord. I am therefore of opinion that we should adhere to the Sheriff-Substitute's judgment.
The Court found that the “pursuers have failed to establish their claim for compensation or damage; therefore dismiss the appeal; affirm the judgment of the Sheriff.”
Counsel for Pursuer— A. J. Young— Orr. Agents— W. Adam & Winchester, S.S.C.
Counsel for Defenders— Gillespie. Agent— John Macpherson, W. S.
