Scottish Court of Session Decisions

Lord President (Clyde).—There is little if any dispute as to the facts of this case, so far as these are contained in the first fifteen findings of the Sheriff-substitute's interlocutor. But there is a question whether those facts create such a state of matters as to entitle the pursuers to abandon their lease of the salmon fishery at Tents Moor.

To paraphrase somewhat the sixteenth finding of the interlocutor appealed against, the Sheriff-substitute has held that, at least as from the end of the fishing season of 1926, the fishery became—in consequence of the establishment of the Leuchars (Tents Moor) Aerial Gunnery and Bombing Range and the coming into force of the relative bye-laws of 1925—unworkable and indeed incapable of possession as a fishery. In my opinion this paraphrase accurately describes the situation brought about by these two things. It is in evidence, and is indeed in itself obvious, that a marine salmon fishery such as this is cannot be conducted without the necessary stake-nets being continuously maintained in situ, cleansed, repaired, and attended upon by a staff of men, with all necessary boats and gear, throughout the fishing season. No one has suggested that any other means of exercising the fishery than by stake-nets is either possible or within the contemplation of the lease. The gunnery and bombing range extends over almost the whole site of the fishery, and the targets are in the midst of it. Practice is made lawful by the bye-laws on four fixed days of each week, throughout the day, on half an hour's notice; and on any other day on seven days' notice. As required alike by considerations of safety and by the necessity of avoiding claims of damage against the Air Force or its officers, it is made illegal during the use of the range for any person to be within its limits, or to bring or suffer to remain within the same, any moveable article of property—the enumeration is, “any vehicle, animal, vessel, aircraft or thing.” It is proved that the nets, boats, and other gear used for the fishery could not by human means be removed from the area of the range in half an hour. To take them away and replace them would cost the labour of the whole staff of the fishery for more than a week. This means that it is impracticable for the pursuers to exercise the fishery without both committing illegalities under the bye-laws and exposing their property, if not their men, to the risk of injury for which they would not be entitled to any compensation. It is true that the range has not hitherto been by any means in regular use on the appointed days for gunnery and bombing practice. But the pursuers cannot be expected to commit themselves to the expense of engaging and maintaining a staff of fishermen and of erecting the necessary fixed machines for a fishery which is liable to be dismantled and compulsorily evacuated at any time, under pain of prosecution for penalties and (it may be) the destruction of their property. If regard be had—as I think it must be—(1) to the nature of the subject of the lease; (2) to the appropriate and possible modes of exercising the fishery let; and (3) to the character of the interference to which the tenants are subjected by the bye-laws, it seems to me that the tenants have been effectually deprived of the possession of the fishery under their lease.

It is in these circumstances that the tenants seek relief from all future liability under the lease. In other words, they say they are entitled to abandon their lease, that is, to have it declared at an end. There is no exact precedent for the present case; and it is not immediately clear on what principle the tenants' claim truly rests.

The case resembles that of rei interitus—as when lands, the subject of an agricultural lease, are overblown with sand so as to prevent the exercise of the arts of cultivation on them—Lindsay v. Home; or when a house is rendered incapable of being used for habitation by fire—Duff v. Fleming; or by vermin which cannot be easily exterminated—Kippen v. Oppenheim . But the difficulty in applying the principle of rei interitus to the present case is that the trouble arises, not from any defect in the subject itself, but from the interference of a third party, under statutory powers, with the possession of the subject.

It was sought to bring the case under the principle on which the decision in Metropolitan Water Board v. Dick, Kerr, & Co . proceeded, namely, that the interference resulting from the bye-laws was such as to make the contract of lease a different contract from what it originally was, and so to bring it to an end. But I doubt if that principle, which is highly appropriate for application to an executory contract, is germane to a grant of land (and in law a salmon fishery is land) in lease. The point in the present case is not that the original lease has become a different lease, but that the possession secured by the lease cannot any longer be enjoyed.

Nor do I think it would be accurate to say that the tenants are entitled to abandon their lease merely on the general principle of mutual contract, whereby performance of the obligations of one party (the lessees) cannot be insisted on when the obligations of the other (the lessor) are not performed. For, although no doubt a lease is a mutual contract with obligations on both sides, the rights of a dispossessed tenant truly depend on the special character of the lessor's obligation of warrandice.

Now, warrandice is given against disturbance of the tenant's possession, and the present case seems to me to be precisely one of eviction, and complete eviction, from the subjects let. I see no difference between the complete expulsion of a tenant from possession of the subject of his lease and a practically complete expulsion from it resulting from the operation of statutory bye-laws which make it illegal for him to continue in undisturbed possession of any sort. It is always a question of degree whether an eviction is partial or total. The reasons for which I regard the tenants' eviction in the present case as total sufficiently appear from the explanation of the state of matters contained in the earlier part of this opinion. When a partial eviction occurs, the lessor is liable to the tenant under the warrandice in indemnity, which may take the form of an abatement of rent. But, if a total eviction occurs, the lessee becomes entitled to treat the lease as at an end, or to abandon it—Rankine on Leases, (3rd ed.) p. 217. In other words, if the lessor's warrandice of the tenant's possession fails completely and irreparably—and not merely partially or temporarily—the failure goes to the root of the lease, and the only form which the indemnity can take is to absolve the tenant from all further obligations under it—in other words, to bring it to an end.

The argument was pressed upon us that, if eviction is the result of supervenient legislation, no recourse is competent against the lessor under his warrandice—Holliday v. Scott, Goldie v. Williamson . It is undoubtedly the case that the bye-laws, and also the Act giving the Air Force power to make them, were subsequent to the date of the lease in the present case. But I do not think this principle is capable of application to circumstances in which the effect of the supervening legislation is to create a complete eviction from the subject let. Neither by Stair (Inst. II. iii. 46), nor by Erskine (Inst. II. iii. 29), is the principle applied to complete evictions, but only to burdens imposed on the subject by supervenient legislation. So long as the eviction which results from the supervenient legislation is partial, and not such as completely to destroy the tenant's possession, it may well be that it infers no recourse against the lessor under the warrandice, and both parties may justly be said to have taken their chance. But if it is such as totally to destroy the tenant's enjoyment of the subject beyond any reasonably immediate possibility of restoration, the obligation of warrandice cannot but result in a liberation of the tenant from the bonds of the lease; for, as it turns out, the lessor has warranted the tenant in a possession in which he is unable to maintain him to any extent.

I am therefore of opinion that the Sheriff-substitute reached a sound conclusion.

Lord Sands.—The learned Sheriff-substitute states his grounds of judgment thus:—“[The pursuers] have lost the right which the defender must secure to them, and that to my mind is an end of the matter. If the defender can find tenants who will take his fishings, subject to the overriding rights of the Air Council, he is welcome to do so, but that was not the contract which the pursuers entered into.”

If the rights of the pursuers to exercise the right of fishing had been curtailed by any action of the lessor, this representation of the matter would have been conclusive, I think, without any necessity of looking further. But this is not the position of matters. The rights of the pursuers under the lease have been curtailed, not by any action of the lessor, but by the intervention of outside authority over which the lessor has no control. This being so, I am unable to accept the view that, apart from the question of practical interference, the pursuers are entitled to resile from the lease because of an alteration in the legal quality of their rights. If, for example, whether by general or by local legislation the consent of a Government Department was necessary in order to the exercise of the right of fishing, this would undoubtedly alter the quality of the pursuers' rights. But I do not think that this would be a sufficient ground for resiling from the lease, unless it was averred that licence to fish had been refused. Again, I confess that I have difficulty in accepting the view that, if it is practicable, by arrangement with the Air Ministry, to exercise the right of fishing without any substantial interference, it is the duty, not of the tenant, but of the landlord, to enter into these arrangements. During the currency of the lease the exercise of the right of fishing belongs not to the landlord but to the tenant. The tenant is in titulo to make any arrangement with the Air Ministry as to the manner in which the right of fishing shall be exercised during the currency of the lease. No doubt it is the landlord's duty not only to give possession to his tenant but also to uphold him in his enjoyment of possession. But I conceive that this implies that the landlord is to protect the tenant and uphold him in possession against any interference for which the landlord is responsible, and which he either can control or ought, when he warranted possession, to have had regard to. It is not his duty to protect the tenant against outside interference, whether lawless or by operation of law. The tenant must defend himself and make the best of matters on his own account. If he finds it to be impracticable to make any workable arrangements, the question may arise as to whether he may renounce the lease.

If the tenants here are not obliged to be content with such arrangements with the Air Ministry as it is in their power to make, I cannot conceive that they would be bound to be satisfied with these arrangements if they were made for them by the landlord. In the view I take the landlord is not bound to make arrangements to protect the tenant from outside interference, which, qua landlord, he is in no better position to make than is the tenant himself for his own interest. Different considerations may arise in the case of eviction or destruction of the subject; but, if neither of these occurs, I think that the landlord fulfils his obligation so long as neither he himself, nor anyone deriving right from him, nor anyone whom he is in a position and the tenant is not in a position to restrain or arrange with, disturbs the tenant's possession.

Accordingly, I think that the tenants are not entitled to resile from the lease, unless they are in a position to show that the exercise of their right under the lease has been so curtailed, not merely theoretically but practically, as to be substantially destroyed, or so completely altered, not merely in legal quality but in practical operation, as to change the character of the subject.

In this view I confess I was at one stage of the argument disposed to think that the action was possibly premature, that the pursuers should have put the matter to the proof, and that then the Court would have been in a better position to judge as to whether, in view of such exercise of the right as was reasonably practicable, the conditions were such as warranted the conclusion that the profitable exercise of the right was substantially impossible.

Further argument, however, and a scrutiny of the evidence, have satisfied me that the pursuers were not under obligation to make such an attempt. Salmon fishing for an annual season involves initial preparations, the engagement of a staff, &c. If it was a question merely of curtailment of profits, that would be one thing, but it is quite another when it is a question, not of less profits but of possible loss. I do not think that the pursuers can in any view be held to be foreclosed because they declined to undertake by way of experiment operations which they conceived would have resulted in loss. This does not, however, end the matter. Although the pursuers are not bound to demonstrate by experiment, it is incumbent on them to show by other evidence that the exercise of their right has been substantially destroyed by being rendered unprofitable, or that, in so far as the right can still be profitably exercised, it is on so small a scale that the character of the fishery is entirely altered, just as if a large agricultural farm were reduced to a small holding.

I do not propose to review the evidence in detail, but I have come ultimately to the conclusion that, even though the Air Ministry endeavour to exercise their rights civiliter, the value of the salmon fishings is destroyed, and that the area not affected is so small and of so little value that, if it is regarded as alone freely available, the character of the fishery is entirely altered. We heard a good deal about the practicability of running stake nets out and in once or twice a week. But whatever might be physically possible, to anyone who has any acquaintance with stake nets it must, I think, be obvious that the idea of doing so is commercially quite impracticable. I am not indeed satisfied that there would be any appreciable danger of damage by leaving the nets standing. But I think that a party cannot be called upon to adopt a course of action which is forbidden by statutory bye-law and subjects him to a statutory penalty.

As I have indicated, the exercise of the fishery rights belongs not to the proprietor but to the tenant during the subsistence of the lease. These rights were granted on the one hand to the tenant. On the other hand, the tenant, as the other party to the contract, was under obligation to pay an annual sum to the proprietor during the period of the lease. In this view it might be suggested that, if during the currency of the term the fishery rights through external interference have become worthless, they have perished to the person to whom for the term they belonged, and, as this has happened through no action of the landlord, the tenant remains liable in payment of the annual sum stipulated. This, I understand, is the view to which the law of England gives effect. But this is not how the law of Scotland treats the contract of landlord and tenant. Each year's rent is payable in respect of enjoyment of possession for the year, and, where enjoyment becomes impossible, no rent is payable. Whether the present is a case of eviction or of rei interitus it is not necessary to determine. I am rather disposed to regard it as falling under the latter. I have difficulty in accepting the view that there has been any breach of warranty on the part of the lessor. Breach of warranty is breach of contract, and it seems to me that it cannot well be maintained that the defender has been guilty of such a breach. The subject of tenancy is the free exercise of the right of salmon fishing, and that has been substantially destroyed or, if one prefers so to put it, sterilised, or rendered incapable of profitable use.

I am accordingly of opinion that the appeal should be refused.

Lord Blackburn.—Under their lease from the defender the pursuers acquired right to erect seven lines of nets on the foreshore, and to maintain them in position throughout the fishing season of each year of the lease. They also acquired right to the use of certain subjects above high-water mark, including an ice house and drying ground for nets. Such rights are common to all leases of salmon fishings in the sea, and their peaceful possession is essential to the proper conduct of fishing operations. It is certain that, when the lease was entered into, both parties must have contemplated that the pursuers should have the peaceful enjoyment of these rights, and that the defender would maintain them therein. As the result of the recent bye-laws issued by the President of the Air Council a danger zone has been defined, which includes five of these lines of nets, and which also interrupts the direct access from the other two lines of nets to the ice house and the drying ground, and extends some distance to seaward. The bye-laws for 1925 provide that this danger zone may be closed for aerial gunnery and bombing practice during four days in every week throughout the year, and that no further notice need be given of the intention to close the area than the hoisting of a red flag half an hour before practice is to commence. Bye-law No. 6 provides that during the time when the danger zone is closed no person shall enter or remain in the danger zone nor suffer to remain therein any vehicle, animal, vessel, aircraft, or thing. It seems to me to be clear that, in order to comply with the terms of this bye-law, the pursuers, if their nets were in situ for fishing, would require whenever the red flag was hoisted to remove within half an hour not only all their fishermen employed in the danger zone but also five of their lines of nets. This is an impossibility, as it is proved that it takes eight men eight hours to erect or remove a single line of nets; and the only alternative which the pursuers have, to avoid committing a breach of the bye-law every time the danger zone is closed, is to abstain from erecting any nets within the zone. It is proved that the five lines of nets situated within the danger zone include between them the best of the fishing ground, and, if the pursuers are deprived altogether of their use, the fishing becomes almost valueless. It is true that so far a somewhat limited use has been made of the powers to close the danger zone, and that the pursuers have only been called upon to withdraw their fishermen from the zone on the occasions when it has been closed, and have not been prosecuted for failing to remove their nets. The fact that they have been compelled to withdraw their fishermen, and may at any moment be compelled to do so again, for periods which may embrace the whole of a day's fishing, is in itself an inversion of the peaceful possession for which they impliedly contracted, which certainly amounts to partial eviction and, in my opinion, very nearly amounts to total eviction from the subjects leased to them. But, when added to that it appears that they cannot fish these nets at all without committing an illegal act by leaving them standing in breach of the bye-law every time the danger zone is closed, then at all events it appears to me that their eviction becomes complete, and that the salmon fishings must be held to have been rendered unworkable. In these circumstances, I think they were entitled to repudiate the contract, and to refuse to pay rent from the end of the fishing season 1926.

Lord Morison.—I agree with the findings in fact set forth in the interlocutor appealed against. I did not understand that the appellant challenged any of these findings except the sixteenth. It was not argued—and I think it could not be argued with any prospect of success— that the defender, at the date of the action, was in the position of giving the pursuers the free and uninterrupted possession of the subjects which he let to them. It was contended only that it was the duty of the pursuers to make arrangements with the officers of the Air Ministry to prosecute their right of fishing under the lease with the minimum of interference. In my opinion the pursuers were under no such obligation. In terms of the lease the pursuers were entitled to enter into possession of the subjects at any time and to fish as matter of right unfettered by any control or interference by any third party. This, in my opinion, is the defender's warranty implied from the terms of the lease The effect of the bye-laws is to invest the Air Council with the rights of owners over the greater and most valuable portion of the subjects on which the pursuers' right to fish must be exercised. Within and around this area the officers of the Air Council could at any time exclude the pursuers' possession entirely. In short, I read the effect of the bye-laws as operating an eviction which is for practical purposes complete. It is quite true that actual eviction has taken place only on certain days. In my opinion this is immaterial. To constitute an eviction which absolves the tenant from liability for rent it is not necessary that there should be an actual physical expulsion from the subjects of the lease. Any act of a permanent character, committed either by the landlord himself or by a person holding a title paramount with the intention of depriving the tenant of the enjoyment of the subjects and rights conferred by his lease, operates as an eviction. I accordingly agree with the first and second findings in law contained in the Sheriff-substitute's interlocutor. In this view the pursuers are no longer liable for the rent under the lease, while the defender has his recourse against the Air Council for the statutory compensation.

Apart altogether from this view of the case, the pursuers are, I think, entitled to succeed on a somewhat different ground. The lease here is a mutual contract, and, as I understand the law applicable to all mutual contracts, these propositions are clear (1) that the stipulations on either side are the counterparts and the consideration for each other, (2) that a failure to perform a material part of the contract on the part of one will prevent him enforcing the obligations in his favour, and (3) that, if by reason of supervening legislation or of an act of the Government in exercise of its powers the contract cannot be carried out, performance will be excused either entirely or partially according as the executive act destroys or merely modifies the power to perform the terms of the contract. In this case I am satisfied that the pursuers' obligation to pay rent depends upon their being enabled to enjoy their rights of fishing in accordance with the provisions of the lease. I think it is quite clear on the facts that the effect of the orders of the Air Council is to render the exercise of the pursuers' rights to fish in accordance with the provisions of the lease utterly impracticable, and I agree with the fourth finding in law contained in the Sheriff-substitute's interlocutor.

On the whole matter I think that the pursuers are released from the obligations of their lease, and that this appeal should be refused.