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Replies to Query CCCXLV. (!ol. VIII., p. 275).
GROUND GAME ACT.
An arrangement may be made with the tenants under the circumstances, provided they agree to transfer their concurrent rights under the Ground Game Act to the landlord for a consideration, and provided a penal clause is inserted in the agreement in order to protect the interests of the tenants against all damage which may accrue to the tenants' crops by game, which in this case would probably be considerable, and lead to some friction between the parties to the agreement.
GILBERT MURRAY, Fellow.
I should think no tenant would take a lease with a penal clause as to damage by ground game. If such a clause were accepted, it must lead to endless dispute and friction, as it would be most difficult to prove that the tenant was preserving in excess of his right, or that the rabbits causing damage did not come from elsewhere.
The only protection would be to destroy all rabbits in the plantation and effectually wire them, if possible. The question raises the often discussed point, “ How is it possible to preserve ground game and rear young plantations at the same time?” The only possible solution is effective wiring, and constant care by keepers to destroy any rabbits left, to prevent them increasing in the plantations.
H. SANDY, Fellow.
No agreement by which the tenant deprives himself of his rights under the Ground Game Act is binding upon him unless he is honourable enough to act up to it.
The object might be attained by a covenant on the part of the landlord to pay the tenant a certain rent for his rights under the Act so long as he, the tenant, has not exercised them, nor allowed or authorised any one else to exercise them on his behalf during the year. Probably the tenant, before agreeing to such a covenant, would require provision to be made for securing him compensation for any damage done to his crops by the landlord's game, such compensation to be assessed by arbitration after due notice has been given in time for the arbitrators to see and estimate for themselves the damage actually done.
The most effectual plan, however, would be for the landlord to take the intervening land into his own hands and cultivate it. If the land happens to be pasture the landlord might let the grazing of it to his present tenants year by year, landlord paying rates. The tenant then would not be entitled to any rights under the Act.
F. PUNCHARD, Fellon.
Replies to Query CCCXLVI. (Vol. VIII., p. 276).
NOTICE TO QUIT BEFORE TENANCY LEGALLY COMMENCES.
I consider the notice a good one, and that a notice to quit may be given by either party as soon as the relation of landlord and tenant is created.
L. BỤRD, Fellon.
The so-called agreement, not being under the seal of the Corporation, was invalid, and the Corporation might have evicted A B at any time after he entered without any notice beyond a demand of possession. As they choose to treat it as a valid contract it was in their power to determine such contract at any time after it was entered into by a notice to quit of sufficient length, notwithstanding the notice was given before the day fixed for the commencement of the tenancy.
J. H. REDMAN, Associate.
In the absence of any indication that the tenancy was to be for a year certain, and from year to year thereafter, and of any express stipulation as to notice, all that is required to put an end to the tenancy in question is that notice determining it shall have been given six months at least before the expiration of the first or any subsequent year of the tenancy. Here ample notice has been given in order to determine the tenancy at the end of the first year, and the fact that such notice was given before the yearly tenancy commenced is, in my opinion, immaterial.
R. CUNNINGHAM GLEN, Associate.
Replies to Query CCCXLVII. (Vol. VIII., p. 276).
PERMANENT PASTURE - COMPENSATION TO OUTGOING TENANT.
The question of amount to be paid by the tenant must depend upon the terms of settlement by which he agreed with the landlord to leave the land down in permanent pasture.
The valuer would have to be instructed if he is to determine the amount: 1. By what the tenant ex pended on the land in laying it down to
2. By what the tenant might have been expected to realise from the
land after the date of terms of settlement with the landlord, above referred to, had he ploughed it up and cropped it as
arable, over and above what he got from it as pasture ; or 3. Upon the basis of the letting value being increased 10s. an acre.
ALBERT Buck, Fellor.
Assuming that the pasture is, to all appearance, not likely to depreciate with age, and that the tenant has actually left the land 10s, an acre better than he found it, it should be worth 28 years' purchase, or £14 on his investment, at the least.
E. LYWOOD, Fellon.
Presuming the landlord pays the outgoing tenant the amount of compensation due to him in respect of the said 20 acres seeded to permanent pasture, I am of opinion the outgoing tenant is entitled to £5 per acre in respect of such compensation that is, increased letting value 10s. per acre capitalised at 10 years' purchase. This will be for the mutual advantage of both landlord and outgoing tenant.
G. GERMAN, Fillon.
I should put the compensation at ten pounds (£10) per acre, being 20 years' purchase of the improved annual value.
T. BANNISTER, Fellow.
Replies to Query CCCXLVIII. (Vol. VIII., p. 276).
GROUND GAME--SHOOTING LEASE-CONTIGUOUS PLANTATIONS
A clause has often within my experience been inserted in shooting agreements to the following effect, and would, I think, meet the requirements specified in the above inquiry.
“ The game or rabbits shall not during the term of this tenancy be preserved in such quantities as to cause damage to the young trees and shrubs in the woods and planta“tions, or to tenants crops on land adjoining the plantations, but if at any time during “the tenancy there shall be such an excessive quantity of hares and rabbits as in the “ opinion of the owner or his agent are doing damage, then the owner or his agent shall be " at liberty, after giving fourteen days' notice in writing to the shooting tenant, to enter " the saillanes and plantations and to destroy such excess, and in the event of any damage " arising therefrom, the same shall be valued two persons or their umpire in the usual "way and paid for accordingly.”'
WM. WRIGHT, Fellon.
I am not aware of any discovery by which a limit can be put upon rearing powers of rabbits. The only safe way would be to wire your plantations round with netting, and have it well looked after to see they do not get under it.
Of course if the sporting tenant would stand it, you may put a clause in the lease making him responsible for all damage to trees by ground game. Hares often do much harm to young trees by biting off the leading shoots.
Where there are numbers of rabbits you must fence with wire netting to do any good with the trees.
W. E. WOOLLEY, Fellow.
Jirom the words "contiguous plantations” it may be inferred that these are not included in the “shooting lease "; if so the landlord can protect bimself from injury by rabbits by wire netting or by killing the rabbits on that portion of the estate not comprised in the tenancy. If, however, it is meant that these plantations are part of the tenancy, it will be very difficult either to define where assessable injury commences or to devise a scheme for compensation which will work without friction.
In practice, the only effective means I find to protect the landlord is to let year by year only, and by this method enable the landlord to resume possession as soon as unreasonable damage is caused by excessive preservation. A penal clause of course is not impossible, but it so frequently leads to the law courts that it is a dangerous weapon to use.
JOHN LOOKER, Fellow.
In my experience shooting, where there is any quantity of rabbits and young plantations, do not harmonise together. If a limit to the rabbits reared is to be one of the conditions of the lease to the shooting tenant, the lessor must bear in mind that his shooting will not command ‘so high
A Clause might be and sometimes is inserted in the lease, whereby the tenant undertakes not to permit game or rabbits to increase to such an extent as to prove injurious to the land and plantations, but in practice I think it would be better to wire off any young plantations in which rabbits would be likely to do damage, with the understanding that no rabbits should be allowed in such plantations. I have adopted this plan, and I may say that this understanding has been loyally observed by the shooting tenant. In my opinion, unless you keep all rabbits out of young plantations, damage is almost certain to be done.
T. A. DICKSON, Fellon.
Replies to Query CCCXLIX. (Vol. VIII., p. 277).
LIGHT AND AIR-NEW WINDOWS NOT IN SAME PLANE AS OLD
In the case of the Vational Provincial Plate Glass Insurance Company v. Prudential Assurance Company, where an old building was pulled down and replaced by another in which the front was set back, Justice Fry held that the right remains where any portion of the light wbich would have passed over the servient tenement through the old windows passes also through the new windows.
On this principle it matters not whether the new building is set back or in advance of the old one, provided that the windows are so placed in height and width that the light obtained by the old windows passes through the new openings.
J. D. MATHEWS, Fellon.
In my opinion the right of light would not be lost, but would be reduced to such light only as could pass through the old windows after the new building is up. Proper records must be kept to preserve the right.
ARTHUR GARRARD, Fellon.
If the alteration in the building, as suggested, is carefully carried out, and full information kept as to the exact situation and size of the windows, I should not think that the right could be successfully challenged ; of course, no additional easement would be created by the altered line of the front.
There is authority for bringing forward a window as suggested in the case of Scott v. Pape, heard in May and June, 1885. 54 L. J. Ch., 914, and 1 Surv. P. N., 89.
This case was carried to the Court of Appeal and affirmed, the appeal being dismissed with costs on February 9th, 1896.
Jno. HOLDEN, Fellon.
I am of opinion that if the increased width does not exceed two feet that the right to light would not be lost. The case of Scott v. Pape (see vol. xx, of The Transactions, page 240) seems to cover this point. A careful drawing of the old lights before they are removed should be made