Page: 701 ↓
The question therefore comes to be, whether the pursuer is entitled to set aside the lease under reduction on other grounds than its period of duration; and that must depend upon the operation of the contract as a whole. Now, on turning to the lease for the purpose of seeing how it is to affect the owner of the estate for the time being, I think the first thing that strikes one is that it is certainly very unlike any ordinary fishing lease one has ever seen. It is an anomalous and very complicated arrangement. The general design, as disclosed in the recitals, is to bring together a variety of fishings in different streams and rivers belonging to different proprietors, and to put them under one system of management for two defined purposes, the first of which is the improvement of the fishings and the increase of the stock of salmon, and the second is the enjoyment of certain sportsmen who are said to be members of an association called the Cree Salmon Angling Association. The defenders' counsel say, and perhaps rightly, that this is a laudable object, and they maintain that a lease for such a purpose ought to be binding upon heirs of entail, because it is a lease for the benefit of the estate. I am not satisfied that this is a consideration which tells in favour of their case. A fee-simple proprietor may take long views, and may sacrifice his own interests and those of his immediate heirs for the benefit of future generations, but the proprietor of an entailed estate must restrict his administration to his own period of possession, and is not entitled to engage in far-reaching schemes at the expense of the heir who is to come after him. We must therefore examine the specific conditions of the contract and see whether they are such as can be made to affect the estate in the hands of an heir of entail.
For this purpose the first question to ask is, what is the subject-matter of the contract; and it is to be observed that the lessor in the outset sets forth that he is proprietor of extensive salmon and other fishing rights in the river Cree and in certain other streams, that he has negotiated leases from other proprietors of salmon fishings in the Cree which are to be granted to his own intended lessees, and that it is intended that the whole of these fishings should be possessed and worked together, “and that these presents should accordingly be taken and read in conjunction with the leases granted by the other proprietors.” I do not know on what principle it is supposed that an heir of entail can be compelled by his predecessor's contract to read the leases of other proprietors as part of his own, and to subject the management of his own estate to the conditions on which they manage theirs. But it is more material to consider what right in or over the entailed estate itself the contract purports to confer. It embraces all the fishings, both salmon and trout-fishing, belonging to the lessor in the streams mentioned. I do not think it is disputed that an heir of entail may grant a lease of salmon fishing which will be good against the next heir; and I agree with the Lord Ordinary that a right of salmon fishing is within the words of the Rosebery Act, because it is in law a separate tenement or “heritage” which may be the subject of a real right. In so far, therefore, as it applies to the salmon fishings, the lease in question might probably be supported if the special conditions on which it is granted do not infringe on the pursuer's right as heir of entail, and if it be assumed that a right of fishing for salmon in a number of different streams, to be exercised only by the rod, is capable of such continuous and obvious possession as is required to convert a contract into a real right. But a lease of trout-fishing is a very different matter.
I agree with the Lord Ordinary that whatever may be thought as to a lease of land with the privilege of trout-fishing as a pertinent of the lands, a lease of trout-fishing as a separate right apart from a grant
Page: 702 ↓
The Lord Ordinary, however, observes
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Page: 704 ↓
I am therefore of opinion that the lease in question is not valid against the pursuer in so far as it purports to be a lease of trout-fishings.
The second covenant, which cannot, in my opinion, bind the pursuer, is that for a lease of one of the fishings, to come into operation on the termination of an existing lease to Mrs Heron Maxwell Blair. I think it clear, for the reasons already given, that an heir of entail in possession cannot anticipate the administration of his successor in this way. The rule that to be good against heirs of entail a lease must be clothed with possession has been relaxed, as the Lord President has explained, by the Montgomery Act, and by the Entail Act of 1882. But neither of these enactments has any bearing upon the present question, and if they are inapplicable the general rule remains in full force. Now, the lease to the defenders of the fishing now held by Mrs Heron Maxwell Blair will not come into operation for five years after the late Lord Galloway's death. It follows that it is nothing more than a contract to grant a lease at a future date, and that cannot bind an heir of entail.
A third objection arises from the somewhat singular stipulation that the rights of fishing granted to the lessees shall as regards certain streams or parts of streams “cease and determine on the 31st of July in each year,” and “the lessor shall be entitled to enter into possession of, occupy, and use the said fishings … or to let the same for the remainder of each fishing season, and that in the same manner and to the same effect as if this lease had not been granted.” This seems open to the same objection as the covenants already considered—that a lease conceived in these terms cannot be effectually clothed with possession. When the first year's lease comes to an end on the 31st July, an heir of entail to whom the succession then opens enters into possession and enjoyment of the salmon-fishings as a part of his estate which is not under lease, by virtue of his right of ownership and on no other title; and when the fishing season comes to an end the former lessees have no title upon which they can put him out of possession and come in themselves, except a contract made by his predecessor, which, if it is no more than a contract, is not binding upon him. It could hardly be maintained in the case supposed that they were still in possession under a continuing title, because ex hypothesi their possession had been interrupted and their title had ceased and determined. This is perhaps technical. But there is a more substantial objection in the stipulation that when the lessor comes into possession he is to use the fishings or let them as if this lease had not been granted, but that in each and every case for rod-fishing with the artificial fly only, or such method as may be permitted by the rules of the Cree Salmon Angling Association. This is an obligation which cannot bind anybody but the person who undertakes it as a party to the contract. It is altogether beyond the range of the administration of an entailed estate, and indeed it is not in any sense a covenant proper to a lease, but a stipulation for restricting and regulating the exercise of a landowner's right of use and enjoyment of his own estate while it is in his own exclusive occupation. It is, however, a material term of the contract. It seems to have been thought essential for the attainment of the main object of the contract that no kind of fishing should be allowed in the streams in question except angling with the rod. It was therefore necessary not only that the right of the lessees should be limited to angling during their occupation, but that the lessor also should bind himself not to fish otherwise than with the rod during the part of the fishing season when he should be in the occupation of his own estate. That may be a very effective arrangement for the purpose. But it is out of the question to hold that an heir of entail in possession can by a personal obligation bind his successors in the estate to forego their right of fishing for salmon by the legal and ordinary method of net-and-coble.
A further ground for holding that the contract is not binding upon the pursuer is, that it lets to tenants a part of his estate on terms which do not yield him a fixed rent in money or kind. It is provided that the fishings let together with the fishings held under the other leases above mentioned are to be divided into seven shares with relative alternate beats; and the lessor stipulated that he and his foresaids, which means “his successors in the entailed lands and estate of Galloway and others,” shall have right, in any year or fishing season after the conclusion of the first three years or fishing seasons under this lease, to claim the uses and privileges attaching to one-seventh share of the whole of these fishing rights. This is a privilege for which the lessor stipulates as of value to him, and it is therefore a part of the return which he is to receive for the rights granted to his lessees. But it is a return which may be of value to one heir and not to another, and it is a privilege which cannot be turned into money. It follows that the heir of entail is not bound to accept it as part of his rent. But if it is not taken into account, the money rent fixed by the lease is not a fair rent, because it is not the full rent for which the parties themselves have agreed that the subjects should be let. I cannot assent to the respondents' argument that this raises a question to be determined after evidence as to the fairness of the rent stipulated, because it is an objection which arises upon the face of the contract, and because no evidence as to the money value of a privilege which cannot be turned into money could be of any avail. The notion that an heir of entail can be compelled by his predecessor's contract to become one of several joint lessees of his neighbour's estates in order to obtain a full return for a lease of part of his own
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There are thus four capital blots which, in my opinion, make it impossible to regard this contract as a lease within the powers of an heir of entail. It includes rights which cannot be made the subject of an effective lease; and as regards the other rights which it purports to set in tack, it is in reality a complex contract by which lessor and lessees enter into a kind of association for the furtherance of a common design, which imposes upon the lessor obligations altogether outside the purposes of a lease of lands and heritages, and alien to the relation of lessor and lessees.
The defenders, however, maintained that as they had given up the right of trout-fishing on the assumption of its invalidity, the contract, after that part of it had been struck out, might stand without it as a good lease of salmon fishings; and the Lord Ordinary has given effect to that argument. I doubt whether his Lordship would have taken that view, if his attention had been called to any other objection to the contract, except that a lease of trout-fishing does not fall within the Rosebery Act. But the position of the case has been altered since it was before the Lord Ordinary. The defenders have now put in a minute renouncing the right of troutfishing, but with a qualification which shows that they were not prepared to hold that part of the contract pro non scripto , while the assumption that they might do so formed the ground of the Lord Ordinary's judgment. After the argument in this Division had been heard out, and while the case was at avizandum, the defenders proposed to alter their position again by withdrawing the minute they had put in and putting another in its place, renouncing the lease unconditionally both as regards the trout-fishings and the subjects now let to Mrs Heron Maxwell. It was too late at this stage to allow the record to be altered, but as we were asked to take note that the proposal had been made, it may be proper to advert to it. It appears to me that to give effect to these proposals or either of them would be to make a new contract for the parties; and I think the explanation given by counsel of their delay in making the second amounts to a frank concession that they were proposing a new agreement. They said that they could not make such a proposal without obtaining the consent of their clients. But if their consent was required it was just because a new bargain was being proposed for them, materially different from that which they had made for themselves. If counsel thought that the lease, in so far as regards the subjects now in Mrs Heron Maxwell's possession, could not be supported, they required no authority from their clients to give up an untenable point and yet to maintain that the contract as a whole was not thereby invalidated. But then they could not take that position, because the defenders cannot be compelled without their own consent to accept a lease of a part only of the subjects they had agreed to take if another material part is withdrawn. It seems to me to be clear enough that both the rights which it is proposed to give up are material. It is manifest on the face of the contract that the parties thought it important for their purpose that the lessees should have the entire control and management of the whole streams and rivers within the description. It was explained, and I think we might have inferred if we had not been told, that the defenders stipulated that trout fishing should be included in the lease, not from any value they attached to that right in itself, but in order that they might secure their exercise of the right of salmon fishing from disturbance by persons who might choose to angle in the same waters under pretence or with the design of fishing for trout. But that only shows how material they thought it that they should have the entire control of all the fishing in all the streams, and therefore that to propose to them a lease which should exclude certain of the streams, and withdraw the right of trout fishing altogether, is to propose a totally different contract from that to which they agreed. But even if there were any authority for so re-forming a contract as between the parties to it, as to alter its material terms, that would not justify the Court in enforcing against the pursuer, with or without modifications, a contract to which he is not a party. The condition of the argument is that the pursuer is under no obligation whatever to the defenders. It is decided in Kerr v. Redhead that there is no equity for enforcing against an heir of entail obligations of his predecessor which are not binding upon him in law. And if the pursuer is under no obligation in law or equity to perform the late Lord Galloway's contract, there is no basis for a proposal to re-form its terms. What the defenders desire is to make a contract for the pursuer, who has made none for himself, and the only ground on which their claim to do so is rested is that he is not bound by a contract made for him by his predecessor. I know of no principle and no authority to support such a demand.
The Court recalled the interlocutor of the Lord Ordinary, and decerned in terms of the conclusions of the summons.
Counsel for the Pursuer and Reclaimer— Rankine, K.C.— Blackburn. Agents— Russell & Dunlop, W.S.
Counsel for the Defenders and Respondents— C. K. Mackenzie, K.C.— Pitman. Agents— J. & F. Anderson, W.S.