Scottish Court of Session Decisions

The Conveyancing (Scotland) Act 1874 provides by section 15—“The casualties incident to any feu created prior to the commencement of this Act shall be redeemable on such terms as may be agreed on between the superior and the proprietor of the feu in respect of which they are payable: And failing agreement, all such casualties, except those which consist of a fixed amount stipulated and agreed to be paid in money or in fungibles at fixed periods or intervals, may be redeemed by the proprietor of the feu in respect of which the same are payable on the following terms, viz., in cases where casualties are exigible only on the death of the vassal, such casualties may be redeemed on payment to the superior of the amount of the highest casualty estimated as at the date of redemption, with an addition of 50 per cent.”

The Parochial Board of the Barony Parish of Glasgow were proprietors of the lands and estate of Woodilee, on part of which an asylum for pauper lunatics was erected in the parish of Kirkintilloch and county of Dumbarton. Mr John William Burns of Kilmahew and Cumbernauld was the superior of these lands. The last entered vassal in these lands was Alexander Bennet M'Grigor, writer in Glasgow, who was alive at the date of this action, and the said lands were consequently not in non-entry. The entry of singular successors was untaxed.

The Parochial Board became desirous of redeeming the casualties of superiority incident to the lands in virtue of the provisions of The Conveyancing (Scotland) Act 1874. On 29th December 1883 the law agents for the board wrote to Mr Burns’ law agents to intimate to them the intention of the board. The parties, however, were unable to come to any agreement as to the amount of the redemption money of the said casualties.

On 5th September 1884 Alexander M'Laren, Peter Beattie, and John Maxton trustees for behoof of the Parochial Board of the Barony Parish of Glasgow, and as such trustees heritable proprietors of the lands and estate of Woodilee, raised this action against Mr Burns. The summons concluded (1) that the pursuers were entitled, in virtue of sec. 15 of the Convenancing Act 1874, on payment to the defender, as superior, of the amount of the highest casualty estimated at the date of redemption, with an addition of 50 per cent., to redeem the whole casualties of superiority payable from their lands; and further (2) that they had validly exercised their right as at 29th December 1883; (3) they concluded that the redemption price of the casualties should be fixed at £131, 1s. 1d., or such other sum as should be fixed to be one year's rent of the lands as at the 29th December 1883, with an addition of 50 per cent.

The defender maintained that the sum tendered was grossly inadequate. He set forth that the lands contained valuable minerals, part of which were let at a rent of £900, and that the whole rental, or value, including buildings, lands, woods, shootings, minerals, and a railway passing through the lands, was not less than £4250, and he claimed that sum, with an addition of 50 per cent., but under the usual deductions.

On 22d November 1884 Lord Adam—(Ordinary) pronounced this interlocutor:—‘‘Of consent, remits to Mr John Blackley, valuator, Hope Street, Glasgow, to inquire into and report upon the annual rent or value of the lands referred to in the summons, and the amount or value of the deductions to be allowed therefrom, with power to the reporter, if he thinks fit, to take the assistance or advice of an architect, or of such other skilled person as he may deem necessary; and recommends the reporter, after hearing the parties, to frame his report in such heads or branches as he may consider most expedient for the purposes of this action.”

On 24th June 1885 Mr Blackley issued his report, in which he stated, inter alia—“The ground set forth in the summons consists of 107·482 acres.

“Upon about four acres of these lands the Barony Parochial Board have erected buildings known as the Woodilee Asylum, capable of accommodating about 250 patients.

The whole remaining lands and other lands in the neighbourhood leased by the board are used solely in connection with the said asylum, and in the opinion of the reporter properly so, as he has been credibly informed that the Board of Lunacy would be unwilling now to license an asylum like that in question without from one-third to one-half acre of ground for each patient.. .. . The buildings and grounds are entered in the valuation roll at the sum of £1820, to which the reporter adds £130 as the value of the agricultural lands embraced in the summons, making a total of £1950.. .. The buildings as erected could be put to no other purpose except an asylum or a poorhouse.

Having the whole facts in view, the reporter has to report that he has considered the valuation on two principles, and he reports these for the information of the Court, that the Court may adopt whichever they may consider the proper one.

First.—He has considered the value of the subjects as in the occupation of the Barony Parochial Board, and on this basis he values the buildings, ground, and land used for agricultural purposes at the sum of £2230, from which there falls to be deducted ten per cent. for public and parochial burdens, repairs, minister's stipend, &c., £223, leaving £2007.

The subjects have been specially fitted up in connection with the purposes of the Barony Parochial Board, and they are worth more to them than to any other party.

The board have a greater number of patients that any other board in Scotland, and it is in this view that the buildings have been made both so large and so expensive.

Page: 400↓

Second.—On the assumption that the subjects were to be let in the open market.

It is somewhat difficult to say, looking to the nature of the buildings, what they might be expected to bring, but having in view the limited uses to which they could be put, the reporter is of opinion that the buildings, ground, and lands used for agricultural purposes could not reasonably be expected to produce more than £1500 per annum, from which there falls to be deducted ten per cent. for burdens, &c., as before mentioned, £150, leaving £1350.

In estimating this sum the reporter has taken into account every probability of both county boards and private parties coming forward as tenants.

It was contended before him that besides valuing the buildings separately he should put a separate value upon the lands, but he is of opinion that it is impossible to separate the subjects, looking to the use to which they have been or can be put.

As he has already mentioned, a sufficient quantity of ground to enable the premises to be licensed by the Lunacy Board must be left, and seeing that the subjects have been devoted to the purpose of a lunatic asylum, he has in estimating their value taken the subjects as a whole; even assuming the subjects to be used for any other purpose, a similar quantity of land would be required.”.

As to the value of the minerals under the surface, Mr Blackley reported that it was impossible for him to give any opinion as to whether there were minerals in the ground, or if there were, whether they were workable to profit. At the same time he would consider that even if minerals were found, and were workable to profit, they were of trifling value. The working of them under or near the buildings would reduce the value of the subjects.

The Lord Ordinary (Trayner) issued the following interlocutor:—“Finds, decerns, and declares in terms of the first and second conclusions of the summons: Finds that the redemption price of the casualties in question amounts to the sum of £2007, with an addition of 50 per cent., &c.

“ Opinion.—The pursuers in this action conclude for declarator that they are entitled, under the provisions of the Conveyancing Act of 1874, to redeem the whole casualties of superiority incident to and payable from the lands of Woodilee and others described in the summons, of which the defender is the superior. The defender does not object to this. But the parties are not agreed as to the amount of the redemption price to be paid. The statute fixes the redemption price in a case like the present at ‘the amount of the highest casualty estimated as at the date of redemption, with an addition of 50 per cent.’ The highest casualty is that which would be payable on the entry of a singular successor, namely, a year's rent.

A remit was made by Lord Adam to Mr John Blackley to inquire into and report upon the annual value or rent of the said lands, and the amount or value of the deductions to be allowed therefrom. Mr Blackley's report is now lodged, and I have heard parties thereon.

Mr Blackley presents alternative views of the value of the subjects, which may be briefly stated thus—(1) He values the lands and buildings thereon as in the occupation of the pursuers, and as specially fitted up for the purpose to which they have been and are applied, at the nett annual value of £2007, and expresses the opinion that ‘they are worth more to them (pursuers) than to any other party.’ (2) On the assumption that the lands and buildings were to be let in the open market, and taking into account every probability of both county boards and private parties coming forward as tenants, he values the subjects at the nett yearly rental of £1350. The defender contends for the adoption of the former, the pursuers of the latter view.

With regard to Mr Blackley's second alternative, it has to be noticed—(1) That it is less in amount than the value at which the subjects in question appear on the valuation roll. That value represents what, in the opinion of the district valuator, the subjects in question might reasonably be expected to realise as rent if let from year to year, and I should have been disposed to adopt that valuation as a solution of the present question if either party had asked me to do so. That was not done, however, by either party. (2) In reaching his second alternative Mr Blackley has not taken into account, apparently, the probability of the pursuers coming forward themselves to offer for a lease of the subjects if they were in the open market to be let. If they did, they would probably offer a higher rent than any other would be disposed to give, and it is not unreasonable to suppose that they would in such a case offer the full amount which the subjects would be worth to them—that is, the amount mentioned in Mr Blackley's first alternative.

It was urged by the pursuers that the fact of the subjects being of more value to them than to any other party was no reason why they should be compelled to pay an enhanced value or rent. Certainly not if they can get the subjects for less. But the fact that the subjects are of more value to them than to any other leads to this, that to get the subjects so suitable for their purposes they would give a rent higher than any other person for whose purposes the subjects were not so suitable would give. The rent so fixed, enhanced doubtless by the suitability of the premises to the purposes of the person taking them, would be the standard by which the superior's composition would be ascertained.

I am therefore of opinion that the first alternative of Mr Blackley's report should be adopted.

The defender did not insist in the view referred to by Mr Blackley that the value of the minerals should be taken into account.”

The pursuers reclaimed, and argued—The sole question here was the amount of redemption money to be paid to the superior for the casualties. The amount of composition due to the superior was the rent of the lands as they were let at the time— Aitchison v. Hopkirk, February 14, 1775, 2 Ross Leading Cases, 183. The reporter had dealt with the letting value of the pursuers' property in two ways—the first as the value that the lands were to the pursuers in particular for carrying on their own business, as managing the business of the Barony Parish, and that value he had erroneously taken as the value of the lands. The other way, which brought out a smaller sum, viz., the value of the subjects as they would let if exposed

Page: 401↓

to open competition from year to year, was the proper mode of calculation. In estimating the value of the lands for payment of a composition the superior was not entitled to claim a greater sum on account of exceptional circumstances which might make the subjects of greater value to a particular person or persons than to the outside world. The date at which they were entitled to claim the benefit of their right to redeem was the 29th December 1883, at which date they intimated their intention to redeem.

Argued for the defender—In estimating £1350 as the value of the subjects, on one hypothesis the reporter had put out of view the fact that if these lands were to be let the Parochial Board would be the largest bidder for them. If they were of exceptional value to the board, then the board would be willing to pay the larger sum for them. The pursuer was entitled to hold that things would remain as they were at the present time, and that the value to the Parochial Board was £2007, which accordingly was the amount of composition payable. II. As to the minerals, if there were any minerals under the ground, they must be taken into account in fixing the amount of composition to be paid to the superior— Sivwright v. The Stratton Estate Company (Limited), July 8, 1879, 6 R. 1208. There was no fixed rule as to mineral rents— Allan's Trustees v. The Duke of Hamilton, January 12, 1878, 5 R. 510. The Court must also find the date at which the year's rent was to be taken as the value of the lands, and not merely fix a sum of money as the reporter had done. The date to be taken was not the 29th December 1883. When the intention to redeem was intimated the pursuers were not entitled to the benefit of their right of redemption till they tendered the redemption-money in full, which they had not done.