Scottish Court of Session Decisions

Subject_1 PART I.

TACK.

Murray's Trustees
v.
Gordon

Date: 26 February 1806
Case No. No. 12.

The damage incurred by non-implement of the stipulation of a lease in regard to cropping, cannot be insisted in for a long period retrò, by the landlord's representatives, he not having objected to the deviations when they happened.

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James Murray, Esq. of Broughton, on the 6th and 15th September 1794, entered into a lease with Agnes Gordon, and Thomas Gordon her son, inimp1ement of a minute of tack in September 1789, of the farm of Enrick, and by a subsequent deed (15th December 1794) extended the duration of the tack to fifteen years after Whitsunday 1809, when the previous one was to expire. In these leases certain rules of husbandry were laid down, according to which the farm was to be cultivated; particularly as to the quantity of crop which was to be raised, and the rotation of crops to be adopted.

Mr. Murray died in 1799, and in 1804 an action was brought at the instance of his trustees for damages, on account of alleged mismanagement of the farm, and contravention of the stipulations in the lease during the year 1791, and every subsequent year.

The Lord Ordinary (29th January 1805) pronounced this interlocutor: ‘In respect the pursuers do not condescend on any complaints made against the defenders, or Wilson their subtenant, while he occupied the farm under them, for having too large a proportion of the farm under crop, and not following the particular rotation of crops prescribed by the lease, finds, That the landlord must be presumed to have acquiesced in the general mode of management pursued by them in that respect, and that his representatives cannot now be admitted to institute an inquiry into the mode of management not attempted to be interrupted or made a ground of complaint at the time, or found any claim of damages on it, on any supposed mislabour which has hitherto taken place, further than that it shall appear, that any particular field or fields upon the farm are worn out or exhausted by over-cropping or otherwise; and therefore, before answer as to any claim of damage which may be on this last ground, remits to the Sheriff-Depute, or his substitute, in the district where the lands lie, with instructions to appoint three judicious farmers in the neighbourhood to visit the farm alluded to by the parties, and to make a report as to the condition of the different fields thereof, and as to any order which may be necessary for obliging the tenant to bring them into a proper condition; reserving, as to this particular, to the pursuers to insist on the implement thereof, and for following the mode of labour prescribed by the lease as to cropping.’

The pursuers reclaimed, and

Pleaded : There can be no reason to presume, that the landlord has acquiesced in a mode of management inconsistent with that originally framed by himself, merely because he does not instantly bring his action for obtaining redress. At one time, he must have been desirous that these rules should be strictly observed, and, if he had seen reason to vary them, the tenant was bound to have obtained an expression of this opinion more satisfactory than the mere negative presumption arising from his delaying to institute an action against the tenant. There seems to be no reason for applying the doctrine of prescription to such claims as these during the currency of the lease; and it appears to be a landlord’s right, at any time during its subsistence, to enforce the stipulations, and to claim damage from the tenant for having violated the conditions on which the use of the subject was granted, and that such a claim may comprehend the damage done during a series of years.

Answered: It would be unjust, by means of a proof at large, to raise up a claim for damage against a tenant for alleged breaches of the lease during a series of many years; and it would be impossible, by such means, accurately to ascertain their amount. The acquiescence of the landlord is the best proof that he had altered his views with regard to the management of the farm; and his trustees, after his death, cannot enforce what he himself did not think proper to insist upon. A tenant ought always to be informed when the stipulations of his lease are to be rigorously insisted upon; and, if damage is to be claimed, it ought to be done immediately after the breach of contract which gives occasion thereto. When this is not done, he is entitled to presume that his landlord is pleased with his mode of management, and consequently that he may continue it till he obtain some intimation to the contrary.

The Court adhered.

Lord Ordinary, Bannatyne. Act. W. Erskine. Agent, Ro. Ayton, W. S. Alt. Gillies. Agent, Tho. Scotland. W. S. Clerk, Pringle. Fac. Coll. No. 239. p. 538.