Earl of Galloway v. Duke of Bedford [1902] ScotLR 39_692 (10 June 1902)

Earl of Galloway v. Duke of Bedford [1902] ScotLR 39_692 (10 June 1902)

The lease was invalid and reducible in toto because (1) as regards the portion of the fishings let to a third party (Mrs Blair), the lease was not clothed with possession during the granter's lifetime and thus not binding on the succeeding heir; (2) as regards certain fishings, the lease was not a single lease for twenty-one years but a series of annual leases for part of each year, not binding on successors; (3) as regards trout-fishing, the right was a personal privilege and not within the powers of the heir of entail; and (4) the court could not apportion the rent or sever the invalid parts, so the lease must be reduced in toto.

Citation
[1902] ScotLR 39_692
Parties
Pursuer: Earl of Galloway; Defenders: Duke of Bedford and others (members of the Cree Salmon Angling Association)
Jurisdiction
Scotland
Judgment Date
10 June 1902
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
lease reduced in toto (entirely set aside)
Legal Topics
Entail, Powers of Heir in Possession, Leases, Fishing Rights, Statutory Interpretation
Property Law Succession Law Scots Law Entail Powers of Heir in Possession Leases Fishing Rights Statutory Interpretation

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Parties

Earl of Galloway

Pursuer

Duke of Bedford and others (members of the Cree Salmon Angling Association)

Defenders

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether an heir of entail in possession can grant a lease of salmon and trout fishings binding on successors under the Entail Powers Act 1836 (Rosebery Act)
  2. 2 Whether the lease in question was valid or ultra vires as regards trout-fishing and salmon-fishing not clothed with possession
  3. 3 Whether the lease could be partially reduced or must be reduced in toto

Ratio Decidendi

The lease was invalid and reducible in toto because (1) as regards the portion of the fishings let to a third party (Mrs Blair), the lease was not clothed with possession during the granter's lifetime and thus not binding on the succeeding heir; (2) as regards certain fishings, the lease was not a single lease for twenty-one years but a series of annual leases for part of each year, not binding on successors; (3) as regards trout-fishing, the right was a personal privilege and not within the powers of the heir of entail; and (4) the court could not apportion the rent or sever the invalid parts, so the lease must be reduced in toto.

Court Disposition

lease reduced in toto (entirely set aside)

Orders

  • The lease of salmon and trout fishings granted by the late Earl of Galloway to the defenders is reduced in toto and is not binding on the pursuer as succeeding heir of entail.