Scottish Court of Session Decisions

This is a question between Mr. Patrick, proprietor of the estate of Benmore, in Argyleshire, and his tenant, Mr James M'call. In the adjusted lease between landlord and tenant there was the following clause:—“The Proprietor shall have power to resume any part or parts of the subjects hereby let, for the purpose of fencing or planting, forming roads straightening marches, or for any other purpose that the proprietor may desire; the proprietor binding himself and his foresaids to fence any lands resumed for any of the above purposes, and being bound to make a reasonable allowance to the tenant for such land as he may resume, or for any injury and damage he may occasion through the foresaid operations, according as the same may be determined by two arbiters mutually chosen, or by an oversman in the event of their differing in opinion, and the plantation fences being always kept up at the expense of the proprietor.”

In exercise of this right, the pursuer on different occasions resumed certain portions of ground; but differences having arisen between the parties, they entered upon a submission, which proceeded on the narrative of the said adjusted lease, and that the pursuer had on three occasions—viz., in September 1863, in October 1863, and in April 1864, the latter date being the date of the submission—resumed possession of certain fields, being part of the lands let to the defender. The submission was in the following terms:—“The said James Patrick on the one part, and the said James M'call on the other part, have submitted and referred, and do hereby submit and refer, to Alexander Forbes Douglas, Esq., residing at Jerdonfield, and John Kennedy, Esq., of Kirkland, arbiters mutually chosen by the said parties, or, in case of difference of opinion between the said arbiters, to any oversman to be named by them, and which they are hereby empowered to do (such oversman to be named before any procedure shall take place under this submission), to ascertain and determine the amount of the allowance to which the said James M'call is entitled, in terms of the said lease, for the fields so resumed as aforesaid, it being expressly understood and agreed that all other or further claims, questions, and differences between the said parties are hereby reserved entire.” The said deed of submission was registered in the Books of Council and Session on the 8th January 1866.

The arbiters differed in opinion, and they devolved the submission upon an oversman, who pronounced the following award:—“The oversman finds, First, that at the dates of the landlord's intimations foresaid, the tenant, the said James M'Call, was in the profitable possession and occupation, as part of the farms let to him, of the ground, intimation to resume which was thereby made, and that it is admitted by the parties that the ground so sought to be resumed by the landlord, and agreed to be surrendered by the tenant, consisted of sixty-eight acres of low ground and certain portions of the hill; Second, that from the dates of the landlord's intimations foresaid, the tenant has been deprived of the profitable possession and occupation of the said low ground and portions of the hill; Third, that the lands, of the profitable possession and occupation of which the tenant has been deprived as aforesaid, are worth to the tenant £153,12s. sterling per annum; Fourth, that the said James M'Call is entitled to an allowance at the rate of £153, 12s. sterling per annum, so long during the currency of the said lease as he has been or shall be deprived of the occupation and possession of the said lands so resumed by the landlord: and I find, ascertain, and determine that the said sum of £153, 12s. sterling per annum is the amount of the allowance to which the said James M'Call is entitled, in terms of the said lease, for the fields so resumed as aforesaid.”

The pursuer then brought a reduction of this decree-arbitral, maintaining that it did not decide the matters submitted, and that it was unintelligible, in respect that while it found the defender entitled to an allowance for the lands resumed, from the dates at which they were respectively resumed,

Page: 13↓

it afforded no means of ascertaining the amount of such allowance.