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planting, draining, erecting farm-houses and offices or outbuildings for the same; building a mansion or offices or repairing or adding thereto. To these have been added by the Rutherfurd Act, sec. 20,-private roads made through any entailed estate, or by means of immediate access thereto; and by the Cottage Act of 1860 (23 & 24 Vic., c. 95), erection of cottages for the labourers, farm-servants, and artizans upon entailed estates.
This exhausts the catalogue of Montgomery improvements. But the Rutherfurd Act has authorised improvements of a more general description, commonly called permanent improvements, as that is the sole description by which they are pointed out in the Act. An heir of entail may (§ 26) apply to the Court for authority to uplift and apply, among other purposes, "in permanently improving" the entailed estate, "or in repayment of money already expended in such improvements," funds which would otherwise be applied to the purchase of additional lands to be entailed,such as the proceeds of the sale of a portion of the estate, railway compensation money, or trust funds directed to be entailed. There is no restriction as to the nature of these improvements. It is only necessary that the money be applied in permanently improving the entailed estate.
There are thus two sets of entail improvements existing along side of, but distinct from each other,-permanent improvements not being necessarily Montgomery improvements, and Montgomery improvements not being necessarily permanent improvements. Montgomery improvements are strictly defined. Rutherfurd or permanent improvements apply to the whole range of meliorations of a permanent kind which a proprietor can execute on his estate. The former are strictly, the latter liberally interpreted.
A few instances will show that this is not a difference of mere words. Thus, with a view effectually to drain unreclaimed or barren land, it is often necessary to trench it; yet trenching, even in the clearest cases of absolute necessity, and when accompanied with draining, has been held excluded by the terms of the Montgomery Act, where draining only is mentioned. In Ramsay (1852, 17 D. 74) L.754 had been expended in trenching 170 acres of barren land, and thereby rendering it productive; and in regard to nearly the whole of this sum, the man of skill reported that "it was not merely necessary to complete the improvement of the barren waste ground, but essential to render
the corresponding drainage operative and effective," and that the drainage expenditure would have been useless without uniting with it the process of trenching by pick and spade. Farquharson, 1855, 18 D. 1044, was a still stronger case. The Court, however, in both cases, disallowed the sums claimed, on the ground that the operations of trenching and draining are separate and distinct, and the latter only is mentioned in the statute.
These decisions are uniformly acted upon, and petitioners and reporters consider it hopeless now to bring the subject under the notice of the Court. Hence, though such claims to a large amount are often entered in the accounts of expenditure, they are rigorously struck off by the professional reporter. On the other hand, trenching is recognised as a permanent improvement in the sense of the Rutherfurd Act. Skene 1857, 19 D. 964, and Gordon, 1860, 22 D. 1503.
A similar difficulty has been felt in regard to embanking portions of estates to protect them against the encroachment of rivers or the sea. This has in some cases been overcome, by shewing that the embanking was necessary to, or was a means of draining or enclosing. But the judgments scarcely appear to be uniform, as will be seen from the cases of Anderson (9 Dec. 1852,) Duncan's Manual, Kinnaird (1849, 21 Jur. 406), Baillie (1850, 22 Jur. 582), and Duke of Athole (1851, 17 D. 1015), the two former being refused, and the two latter granted. In the Duke of Athole's case the interlocutor bore that the charge was sustained as for drainage, and in Mr Baillie's as necessary for drainage. These grounds very much resemble those on which trenching, as distinguished from draining, was disallowed. Such operations would no doubt be all reckoned, as they truly are, permanent improvements, and there would be no difficulty in having their cost defrayed from the sources pointed out in sec. 26 of the Rutherfurd Act, where such exist. A case of somewhat similar straining occurs in Porterfield (1853, 15 D. 428), where the cost of a loch in a sheep park, and a pond in a garden, were sustained as for drainage, the practical reporter stating that the "loch and pond, being the recipients of the drainage water of lands adjoining, are to that extent useful for the purpose of the drainage of the lands referred to, although other outfalls as suitable could have been obtained at less expense, but the lands and heritages would not have been thereby improved to the same extent. It is surely far from expedient that the granting of claims for valuable and
beneficial improvements should be perilled upon the fact that the operations are useful for other than their primary purposes. The law is thus left uncertain in its application, and parties are tempted to strain the facts of a case to correspond with the restricted language of the statute.
Again, the erection of farmhouses and offices being a Montgomery improvement, the cost of such buildings is readily granted, but shooting lodges are on a different footing, not being mentioned in the statute. Indeed, when the Act was passed they were no doubt seldom used except by the heir of entail and his friends, for a few weeks in autumn, when no great hardship would be felt that the comforts were not always such as might be had at home. Now, however, Highland estates have become exceedingly valuable, chiefly on account of their shootings, which are now constantly let on lease, and at high rents, implying and requiring good house accommodation. These rents too are not reckoned as mere perquisites of the heir in possession, but form part of the legal rents of the estate, and, whether the shootings be let or not, are included when calculations are made for family purposes, founded upon the rent of the estate (Leith, 1862, 24 D. 1059). On some estates the shootings produce as much or more than the agricultural subjects. But the cost of erecting shooting lodges has been uniformly rejected as a Montgomery improvement; and we cannot but think that the rule was very sternly applied in Davidson (1859, 21 D. 1086). Here the sum of £850, expended in erecting a dwelling-house and offices for the tenant of grazings and shootings, was disallowed, though there was a lease to a resident tenant, for the period of 17 years as to the shootings, and 19 years as to the grazings, at a rent of £620, of which £360 was applicable to the shootings, and £260 to the grazings. The Lord President observed-"It is not alleged that this house is a kind of building that would be proper and suitable for a farm-house, but that it serves the double purpose of affording accommodation as a shooting lodge, while it also serves as a farm-house to the tenant of the grazings-he being also tenant of the shootings. It does not appear to me that such a building falls within the description in the statute of a farmhouse. It is something different and more extensive than a farmhouse." And, to the suggestion that the Court should allow what would be suitable to a farm-house alone, he replied, "That seems a reasonable suggestion if we were here exercising legislative
powers.' We are not aware that it has been decided that shooting lodges are permanent improvements in the sense of the Rutherfurd Act, but looking to the miscellaneous claims that have been sustained under that head, it cannot be doubted that they would.
If such claims as those above mentioned have been rejected, it is not wonderful that building a tile work, a thirlage mill, or a gamekeeper's house, constructing a well, erecting a steamboat pier to give access to an estate from the Frith of Clyde have met with the like fate. Upon the analogy of other cases all these would probably have been sustained as "permanent improvements." Lockhart (1852 14 D. 922) is a direct authority as regards a flour mill.
These instances have been cited, not on the ground that they should or could have been otherwise decided under the present statutes, but as illustrating the inequalities that have been inadvertently introduced by the legislature. It is to be remembered also that we have before us only a few of the multitude of cases of similar, or greater hardship, with which practitioners must be familiar in chambers. It is only the improvements that seem to have some resemblance in description to the language of the statutes that are seriously contested, and find their way into the reports, but many thousand pounds must have been beneficially expended upon entailed estates, of which the heir in possession finds it impossible to recover any part. Lord Curriehill said, in Elliot, 1861, 23 D. 882, "Permanent improvements" (and he uses the words in their popular sense)" on an entailed estate form in effect additions to the estate, and indeed additions more valuable to the heirs of entail as a body, than if additions were made to the extent of the estate by other lands being purchased with the money, and entailed on the same heirs; and therefore the heir who lays out his funds in making such an addition to the estate has a strong claim in equity to be reimbursed out of the estate so improved by him." But under the present statutes one heir of entail is able to obtain reimbursement in whole or in part of improvement expenditure, because, for example, a line of railway has been carried through his estate for the damage caused by which he gets compensation, which he is authorised to apply to repay the cost of improvements of whatever kind, if permanent; while his less fortunate neighbour, who has not recourse upon any such compensation money, cannot be reimbursed from that source,
and cannot charge the estate by annualrent or bond, because his improvements do not square with the precise language of the statute of 1770, when perhaps many of them were unknown and could not have been purposely excepted. The reason of the inequality is simply this, that an act nearly 100 years old fails to express in detail the various kinds of improvements which proprietors now-a-days find it advantageous to execute. Agriculture
seems to have been the only source of revenue then contemplated from landed property, and even in this department there is not sufficient latitude to meet the various agricultural improvements and appliances which may beneficially be made. But what of
estates whose revenues are derived from game, from fishings, from the growing of wood, from mills for grinding corn, &c., cutting wood, or carding wool, &c., &c., and from works of many other kinds?
It may be much more remunerative and more suitable
to the position and circumstances of the estate that such sources of revenue should be developed at much expenditure and with doubtful prospects, than that its agricultural capabilities should be developed. Yet the heir is entitled to reimbursement of expenditure for the agricultural improvements of the Montgomery Act, without regard to their permanency, for it has been more than once stated from the bench that Montgomery improvements "are not required to be of a permanent nature."* And on the other hand, an heir who seeks to develop the real resources of an estate is left to do so for the benefit of succeeding heirs all at his own cost, unless he is fortunate enough to get a windfall of money by bequest or a railway compensation claim. Of course, the natural effect of this is to discourage heirs of entail from executing such improvements at all.
We have not mentioned mines and quarries as subjects for which expenditure may be beneficially made, for as their working takes from the substance of the estate the next heirs of entail are not benefitted by anything that facilitates the operations, except perhaps the immediately succeeding heirs who continue the workings with the appliances furnished by their predecessor.
The remedy we venture to suggest for these anomalies is evident enough; namely, an enactment that all permanent improvements in the sense of the Rutherfurd Act be deemed improvements of the nature contemplated by the Montgomery Act, so that the
* Lord Curriehill in Elliot, supra.