§ Order of the Day for the Second Reading read.
* THE MARQUESS OF HUNTLYMy Lords, I have some little compunction in bringing before your Lordships this very legal question; but the gravity of the subject must be my excuse for asking your attention while I very shortly venture to put before you the reasons which induce me to intrude it upon you. My Lords, the Bill relates to what are called in Scotland servitude rights, and I will explain shortly what they are. These servitude rights have been obtained in various ways. Some are the relics of the feudal system; some have arisen through friendly permission at a time when very little value was attached to the land over which the right was given; some were acquired by prescription, the freedom of the exercise having been allowed without hindrance for 40 years, which under Scotch law gives the right; and some are held 494 under old grants in the titles to the land. They consist chiefly of pasturage and grazing; of sporting, which includes the various descriptions of fowling, hunting, and foresting; of taking turf and peats, or, as it is called in Scotland, of feal and divot. This divoting, or paring the surface of the ground for fuel, is a remnant of a most barbarous custom, and it is universally prohibited by proprietors; but where a neighbouring proprietor has this servitude right over the land, the owner cannot prevent his tenants from divoting. I will remind the House that these servitude rights are most antiquated ones; they are the relies of a bygone age; they are not, and have not been for a long time, granted in modern charters. The tendency of the day is to get rid of these joint ownerships. I may also claim for the Bill that it follows the lines of recent legislation by enabling those who have grazing rights to become the proprietors of land. When the rights were acquired the land was of little commercial value, and the privileges the rights carried were really more for the convenience of neighbours than for any important money value contained in or attached to them. But there has been a very great change in the value of land in Scotland, more particularly in grazing and sporting districts; and as the lands have increased in value these rights have been found to cause a great amount of inconvenience to the proprietors of the soil. With the rise in the value of land, and especially of grazing and sporting land, the situation has become altered, and very great inconvenience is occasioned. The proprietor of the soil is hampered in dealing with his own land by reason of these rights. The original privilege granted is much; 495 abused. The tenants from an adjoining estate may pasture an owner's land, interfering with his own tenants, cutting the turf and trees, and turning in their sheep or cattle wherever they like, and he has no control over them. The proprietor cannot fence his land, cannot plant it, cannot plough it, or improve it in any way. He might have rival shooting parties on his land—a case in regard to which I could give an amusing instance—organizing battues and striviing which could shoot the largest number of grouse on the 12th of August. Apart from the questions affecting ownership, there is a practical one from the farmer's point of view. Where flocks of sheep are disturbed by different owners running them on a grazing with separate sets of shepherds and dogs, the sheep never settle or feed so well, and all parties are damaged by the intermingling. Supposing that a proprietor has a hill-grazing which carries 900 sheep, and a neighbour has the right to send 300 sheep more to the hill, it would not only pay the proprietor to give up a piece of land—even a third of it—to his neighbour for his separate use, but it would pay the proprietor's tenant to have his remaining ground fenced off and his flock allowed to graze undisturbed; while, at the same time, the neighbour would much prefer to have his grazing right valued, and so much land given to him for it. I think it is clear, from every point of view, that there exists a state of matters which is most undesirable, and is not beneficial to the country, or to any individual. Several proprietors whom I have consulted feel with me that they would be much better off with a smaller quantity of land free from these servitudes, than, as now, with a larger extent burdened with and rendered nearly useless by them. The method by which the Bill proposes to deal with the question is to follow the old Scotch principle of dealing with commonties, or lands held jointly under common right by two or more proprietors. An old Act of the Scottish Parliament provides that a proprietor, having an interest in a commonty, may raise an action against all persons concerned to determine their joint rights and interests, and to value and divide the lands according to the proprietors' several rights and interests. The point I wish to insist on, and 496 this is the reason for asking for legislation on the subject, is that there is practically no difference between commonties and servitude rights; if division is good in the former case it certainly holds good in the latter. The commonty implies a joint proprietorship, while the latter is a right of property burdened with a right of servitude in favour of another person, which is a limited right of property. Yet in those cases no division can be insisted upon as with commonties. If a joint proprietor can demand a division with other joint proprietors, it is, I submit to your Lordships, desirable that in the same way he should be able to demand a division with those who have only the right in certain degrees with him to certain uses of the land. Now, my Lords, the Bill is a very short one. My proposal is by the first clause in the Bill to enable any owner of lands burdened with these rights to apply to the Sheriff of the county to have such rights valued, and that the Sheriff, after having the rights reported on and valued, should fix and adjudge the value of each. This value by the 2nd clause is to be paid in money; but as it might be desired by the holders of these servitudes to receive a portion of the land over which their right existed in preference to money, it is provided by the 3rd clause that the Sheriff may adjudge so much of the lands in lieu and in place of the right of servitude if so wished. There is a provision by Clause 4 to enable limited owners to redeem the servitudes, and to burden the lands in their possession with the sum payable by them to the holder of the servitude. There may be cases where objections could properly be raised to the commutation of these rights, and provision is made by Clause 5 that notice of any application shall be intimated to all parties interested, and that any one of those parties may appear before the Sheriff and state objections to the proposed redemption. I do not apprehend that the provisions of the Bill are likely to be taken advantage of by the superior or owner of the solum unless the servitudes over it are a serious drawback, as the holders or tenants would have to be compensated very substantially indeed for giving up their rights. It would be for the public good that action should be taken, and the present 497 state of things put an end to; and the holders of the servitude rights will not be prejudiced or injured, inasmuch as they will receive compensation in money or land where it is found desirable that their rights shall be commuted. I must remind your Lordships that lands burdened with these servitude rights are practically stereotyped to remain as they are. If nothing is done to relieve them there will never be any improvement, and they will remain for ever abandoned to their present condition. If there exists a right of grazing the proprietor cannot fence his land, cannot plough it or plant it, or improve it in any way. I know of thousands of acres in the North of Scotland which lie under these restrictions, burdensome and practically useless alike to the owner of the solum and the person holding the servitude. My Lords, I feel that, without the support of the Secretary for Scotland, it would be impossible for me to carry the Bill at this period of the Session; but I appeal to him to consider whether he cannot see his way to support it, as from all sides I have received a favourable report on the Bill, and I am sure that it is a much needed measure of reform, would be most beneficial, and would meet with general approbation in Scotland. I therefore hope he may see his way to support the Bill of which I now move the Second Beading.
§ Moved, "That the Bill be now read 2ª."—(The Marquess of Huntly.)
§ * LORD WATSONMy Lords, whilst I do not quite agree with the noble Marquess in the account which he has given of the origin and position of the rights with which his Bill proposes to deal, I think it involves matters which are well worthy the consideration of the House; but whether, at this period of the Session, there ought to be legislation on the subject is a very different question. In the northern parts of Scotland there are some large tracts of land which are at present not available to the owner, and of not much use to the servitude holder, because of the contrariety of rights and interests arising from that state of affairs, and in such cases the Bill might be useful. I have no doubt that the measure would be popular and beneficial to those parts of Scotland. I think, my Lords, the old law of Scotland with regard to the divisio com- 498 monties—which requires the presence of one or more joint proprietors—should be extended to these cases. But having said so much, my Lords, the approval which I can give to this Bill ends. In the Northern parts of Scotland, as I have said, no doubt the measure would be beneficial. But coming further South a very different state of things exists. There are in that part of the country a great number of small feuars and village communities who possess servitude rights of that kind founded upon contract—some ancient, some modern. As far as they are concerned, it appears to me that a very strong case would have to be made out for the interference of Parliament, because I believe that in many cases the existence of the servitude right which each feuar possesses in an undivided portion of land is much more beneficial than division; and I believe also that in many cases where it is to the interest of the proprietor of the servient land to buy out the right which encumbers it its mere money value would be no compensation to those who lose it; and I do not think that a man should be deprived of the right which he has by contract with his superior, and be compelled to deliver it up whenever it becomes to the landowner's interest to require it. The existence of the servitude rights which each tenant possessed was much more valuable than any compensation he would receive for their loss. I think, my Lords, if the Bill were confined to the first class of rights to which I have alluded, it might be a useful measure; but I do wish to say this—that although I am acquainted so far with the facts which bear upon this legislation, I cannot pretend to know them all, and am therefore not prepared to approve of the Bill farther than I have stated. I would suggest to the noble Marquess that this is a Bill which ought to be circulated in Scotland and the terms of it made known, so that those who are in possession of interests which might induce them to oppose the various clauses of the Bill may have an opportunity of presenting their objections to the measure. I think the Bill should have been preceded by some inquiry, and I would advise the noble Marquess, if a Second Reading be granted, not to proceed with the Bill this Session.
THE DUKE OF ARGYLLMy Lords, I desire to say a few words, but only a few words, on a Bill of this character. As far as I can understand it, it is a very useful measure. The existence of these ancient servitudes in Scotland has been a very great inconvenience, and at the end of the 17th century an order was passed with regard to the commonties which permitted their division. This Bill refers not to commonties proper, but to something very analagous to them. Throughout a great part of the country these rights have been sold, but in other parts they are undoubtedly a very great inconvenience. It appears to me that this Bill proceeds very much on the lines of our old law on the subject. I did not know that there was enough importance in some of these matters to make it worth while to deal with them. Reference is made to rights of shooting and other rights existing to a small extent in some parts of Scotland, and I was not aware it would be worth while to introduce them into a Bill of this kind; but I am told that in other parts of Scotland there are great numbers of them. I think it is much too late in the Session to proceed with a Bill of this character.
* THE MARQUESS OF LOTHIANMy Lords, I have listened with much interest to the remarks made by the noble Marquess in support of this Bill. There is no doubt that, as the noble Marquess has said, very great inconvenience is felt in many parts of the Highlands, and in other parts of Scotland, from the existence of these servitudes; but I cannot help thinking that the noble Marquess has scarcely realised the importance of the measure which he presents for your Lordships' consideration. The Bill goes into details in these matters, and in many cases it would materially alter the position of the ownership of laud. I believe it to be perfectly true that the questions dealt with by this Bill are confined chiefly to the Highlands; but this Bill applies not only to the Highlands, but to the whole of Scotland; and although in the Lowlands it will probably have but little effect, yet, as the noble and learned Lord has pointed out, the purposes of the Bill might give rise to grave inconvenience. Although I admit the inconvenience to the proprietors of the land, I think the noble Marquess has not quite 500 realized what the effect of such a measure would be if these practically compulsory powers under the Bill were taken advantage of by the owners of lands over which these rights existed. I come now to the clauses of the Bill, which are the practical clauses— namely, 3 and 4. Clause 3 deals with the question of feal and divot, which the noble Marquess proposes may be taken on compensation by a money payment; and Clause 4, which deals with rights of pasturage, which may be compensated for either by a money payment, or by the giving absolute right of ownership over a part of the land, in exchange for the exercise of limited rights over the whole of it. Take the case of the right of feal and divot. Divot, I may explain to some of your Lordships, is the right of, as it were, skinning the surface of the land and cutting peats horizontally; and feal is that of cutting peats perpendicularly. The value of the right would have to be decided by the Courts or by arbitration. If the proprietor were to apply to the Sheriff to get the value of turbary rights decided by arbitration, the owner of the land must pay the amount fixed; but the owner of the servitude might not be able to get peats elsewhere, which might occasion him the greatest inconvenience. Then there is the right of pasturage; the same considerations would apply to that. In many cases where there are rights of pasturage over an extensive tract the owner of the servitude might have only a small number of sheep upon it. But if he were to get, say, five acres by way of compensation, that could not possibly repay him for the rights he would lose over a large number of acres. The noble Marquess has pointed out cases which I think show what are the object he has in view where there are rights of servitude over a large tract equally divided between two farmers or landlords. There advantage might be gained, and there would be but little difficulty. But there are many other cases in which that right of pasturage is not at all equally divided, where a very large number of cattle or sheep are turned on by one man in respect of his right of servitude, while some one else might have only a small number of sheep or cattle upon the pasturage. If the small holder were to lose the right he possesses he might only get instead of the right of pasturage over a large number of acres a small money payment, 501 which could not possibly compensate him for the extent of pasturage which he had under his right of servitude. Those are objections which arise where compulsory power is given by the measure to deal with rights of servitude; but, at the same time, I am very far from saying that the question is not one which is worthy of careful consideration. No doubt it is a very great inconvenience to the proprietors of servient land not to be able to deal with it under existing rights; hut I do not think at this late period of "the Session it is possible for the Government to undertake to deal with this question or to consider it with a view to legislation. I will, therefore, appeal to the noble Marquess at once to withdraw this Bill, and, as has been well suggested by the noble Lords who have spoken, to have it circulated throughout Scotland, with a view to eliciting opinions from those concerned, obtaining further information as to how far it would assist those to whom it would apply, and whom it is desired to benefit. I will say no more on the present occasion, except that I hope the noble Lord will not press his Motion, but that he will leave the matter now, as some of your Lordships have expressed your views upon it, to be dealt with on some future occasion.
* THE MARQUESS OF HUNTLYMy Lords, I only wish to say, in answer to what has fallen from the noble and learned Lord, that I quite admit the difficulties he has pointed out as regards small tenement feuars in the South of Scotland; but the Bill is framed in this way—that the Sheriff could refuse to entertain an application if he found the parties in respect of such rights were materially injured. Then with regard to the compulsory powers, the only proposition is that the owner or any persons interested may proceed in the matter. As with regard to the commonties, any person interested in the servitude may go before the Sheriff, and it then becomes a question for the Sheriff whether or not he will proceed in the matter; so that really my Lords, there is nothing compulsory in carrying the measure through in this form. But, my Lords, I quite admit that at this period of the Session it is almost hopeless to expect your Lordships to proceed further with the measure. As I understand, if the Bill 502 be allowed to pass the Second Reading, and withdrawn now, I should be at liberty to reintroduce it next year—I think that was the suggestion.
* THE MARQUESS OF LOTHIANI am afraid I cannot assent to that. I must decline to accept the noble Marquess' proposal, because if adopted he will see at once that it would be pledging the Government to the principle of the Bill.
* THE MARQUESS OF HUNTLYI can assure your Lordships I do not wish to prejudice anybody at all. However, as the noble Lord does not assent to the proposal, I will simply withdraw the Bill.
§ Motion (by leave of the House) withdrawn.
§ Bill (by leave of the House) withdrawn.