SECOND READING. (Hansard, 16 May 1890)

*THE MARQUESS OF HUNTLY
My Lords, the Bill of which I move the Second Reading is the same Bill as I introduced into your Lordships' House at the end of last Session. At that time it was very favourably received on both sides of the House; but at the request of my noble Friend the Secretary for Scotland I withdrew the measure, with the view of letting it be considered in Scotland, and ascertaining the public opinion upon it in that country. I do not, therefore, think it necessary to go again into all the details of the measure, but rather to comment upon the opinions which appear to have been expressed with regard to it. From all I have learned upon the matter, opinion is distinctly favourable to legislation upon this vexed question. The first objection 1082 that was raised was that there is hardly any precedent in Parliament for dealing in this way with private rights.; but there is a distinct precedent in Scotland itself, as the old Scotch Parliament in 1695 dealt with commonties, or common lands held by two or three proprietors jointly in an Act which goes exactly upon these lines. The apparent difference between the two cases of commonties and servitude rights is very small, and in practice there is really no difference at all, as in the case with which this Bill deals there is a joint ownership, where one person is the owner of the land and others have rights of pasture, shooting, &c, over it. A commonty is a joint ownership in land: a servitude right is where one person holds the land, and there may be two, three, or four owners of servitudes for the different rights described in this Bill—forestry, shooting, pasturage, and other rights—over that land and over the right of its-owner. My Lords, it seems to me that if a joint proprietor in a commonty can demand a division of the land, the owner of land burdened with a servitude right should be equally entitled to have a division with those who exercise jointly with him the right of using the land. I can see no difference between the two, or what reason there can be for the owner of a servitude right not being allowed to claim such a division of the right as one who has a claim to a part of the land can demand. In Scotland, where such lands have been held in common they have all been divided, and I think it would be very largely to the public advantage, if this dual ownership which exists in regard to these servitude rights were done away with. I have heard it said also that some rights of the public would be interfered with by this Bill, but that is not so. The Bill does not propose to touch any public right whatever; it merely deals with the private rights of proprietors and those who have servitude rights over land. Then, again, I have been asked what interest has the public in a measure of this sort, and what precedent there is for dealing in a general Bill with these relations between owners of private property. There are precedents for such interference. For instance, Parliament interfered with the entails of land, and decided when entails 1083 should cease. What greater instance of dealing with private interests could there be than that? I have mentioned the precedent of Parliament dealing with commonties in the Act of 1695, and there are a number of other precedents where private rights have been dealt with. For instance, an owner of real estate can compel his neighbour to join in building boundary fences, to deepen water courses in order to let water off his land, and to improve the drainage in connection with his property. But there is a much stronger case than any I have quoted in connection with dealing with private rights in the Old Roads and Bridges Act in Scotland, by which the Trustees who hold the roads have a right to go under any person's land and dig for materials for the maintenance of that road over the land, only paying where the land, is enclosed, surface damage, and where it is unenclosed they deal with it as if it was their own property. I mention those as precedents to show that private interests have in other directions been touched by Act of Parliament. Now, as long as these joint or servitude rights remain the land is practically of little value to anybody. I have not the evidence of public opinion as represented by Petitions from Scotland in favour of this measure, but the reason of that is that the old bodies of Commissioners of Supply are defunct, and as the County Councils have not come into working order yet, they have been unable to report upon this matter; but as regards the opinion of those who own lands which are subject to these servitudes and to those who exercise rights over their ownership, I have received letters which are most favourable. With your Lordships' permission I will read one from a gentleman who has succeeded recently to his estate, Sir John Gladstone, of Fasque. He writes to me— I have been studying your Bill carefully, and it appears to me to cover all the ground required. There can be no doubt that power to get rid of servitudes will be a boon all round and would in many cases lead to the improvement of hundreds of thousands of acres, by dividing which under existing circumstances must remain in a state of nature for ever.—Yours sincerely, JOHN GLADSTONE. Although some of the owners of rights over the solum which has the servitude 1084 over it may be willing, and I know one case where three out of four owners of these servitude rights are perfectly agreeable to allow them to be divided, yet one of the owners of the servitude rights, being an entailed proprietor, they cannot move in the matter. If you have dealt with entails in the way you have done by legislation, surely you can deal with a matter of such great public advantage as this, which is hindered from being carried out by the existence of the old entails. My Lords, I do not think there can be any real objection to this measure. There can be no doubt that the public will be largely the gainers by legislation of this kind. I would remind you that a large number of these rights are connected with hill grazings, and one great benefit of this measure will be the improvement of those grazings by draining so that the land will carry more sheep. If this measure is not carried it will still be to nobody's interest to improve those grazings, and practically those enormous grazing lands will remain of little value to anyone. I mentioned last year the several disad vantages under which proprietors labour from the existence of these servitude rights. I will not go into them again, but will only mention one instance of divoting which occurred in my own case. A neighbouring proprietor has the right of cutting turfs in a forest which belongs to me. Two of his tenants went to get the turf. They lit the heather to enable them to cut the turf easier, but the fire got the better of them, and the whole hillside was burnt. In that way the hillside grazing and the shooting also have been damaged for years to come, simply through the carelessness of a neighbouring proprietor. There is no remedy for this state of things except by doing away with these rights, as I propose. My Lords, it is objected that there is to be a summary process of going before the Sheriff. There was an extension of the Act of 1695 which enabled the parties concerned to go before the Sheriff with regard to commonties, and I have proceeded here entirely upon the lines of the legislation with regard to commonties. My noble Friend Lord Watson called attention last Session to the case of those feuars who may have become owners of rights by reason of having 1085 made contracts with the superior owner. I own that there is a grievance in those cases, and I should be quite prepared to meet it by the insertion of a special clause providing that— This Act shall not apply to rights of pastur-age or of common pasturage where the same are constituted by deed or written contract, except by the consent of the party having the right to the said servitude. My Lords, the only public expression of opinion I have seen against the Bill is a document which has been circulated among your Lordships by solicitors of the Supreme Court in Edinburgh, but the reasons given for objecting to the Bill are not very clear from that documont. It appears not an unfair deduction that those gentlemen object to what is rather a fruitful source of litigation between owners in regard to these servitude rights being extinguished as the source which probably brings considerable grist to their mill. I regret the absence of the noble Duke, the Duke of Argyll, from ill-health. He intended to come down to-night to speak upon this matter, and he writes to me saying he is unfortunately prevented from attending the House. He goes on to say— I think all these servitudes are bad things; but they must be dealt with most cautiously, especially when they include rights of grazing belonging to poor people. I think that a matter of this kind should be dealt with by Government and not by private Members. I quite admit the force of that, and I think the noble Duke is right. Though I have brought forward this Bill, I wish to say that I do not in the least desire to press it forward as a private Member if the Government will give any assistance in the matter. I should much rather my noble Friend the Secretary of State for Scotland would undertake to deal with it, or else that the Government would allow the matter to be referred to a Committee. I can assure him that the measure is regarded as one of pressing importance to Scotland, and that it would be a very great boon to proprietors to have the question settled. I beg to move the Second Reading.

§ *LORD WATSON
My Lords, whilst not hostile to the object which the noble Marquess has in view, I have not been relieved of the difficulties which I expressed last year in regard to the method which 1086 he has resorted to in order to accomplish his ends. The great obstacle in the way of this measure is that it is very difficult to define the subjects to which it is intended to apply. I do know a great many subjects which are comprehended in this Bill, to which its principles ought certainly (as I have had occasion to say before) not to apply. In the case of commonties, to which the noble Marquess has referred, I may explain that they constituted a species of property which had existed in Scotland from time immemorial. The property was well-known and earmarked, and when the Legislature dealt with it under that name; there could be no mistake whatever as to the subjects included in their legislation. But when I come to the Bill of my noble Friend, I find a very great difference. He desires to assimilate the subjects, which he intends to bring within the scope of the Bill, to commonties, and I can quite conceive that in the cases which he has specially described, such as that of large tracts of moorland in the North of Scotland, the resemblance of one kind of property to the other is very close indeed. But this Bill is net confined to subjects of the class which the noble Marquess described; and I find myself at a loss, without some definite information on the subject, to formulate a definition which will confine its application to property of that description. My Lords, as the Bill is drawn, there is not the most insignificant patch of land in Scotland over which the proprietor has given a servitude right of this kind that is not within the scope of the measure, and I venture to say, as far as my knowledge extends, there is not an estate to the south of the Forth to which any provision such as is made by this Bill ought to apply. It would break contracts on the faith of which persons have built houses and acquired property down to the time of the passing of the Bill. I do not think it was the intention of the noble Marquess to bring in all those cases. The measure is not confined to feuars merely. I venture also to say this: that having spoken of the south of the Forth, I believe that to the north of the same line there are comparatively few instances in which there ought to be any application of this 1087 measure. I do not think that referring this Bill to the Law Committee would be of any use. They, perhaps, could say what ought to be the rights of the servitude owner and the proprietor inter se, if they knew the parties they were dealing with; but to pass the Bill as it stands would be to pass it in the dark, and to send it to a Committee as the noble Marquess suggests would be simply sending it to a body which has not the means of defining the subjects of the measure.

THE SECRETARY OF STATE FOR SCOTLAND (The Marquess of LOTHIAN)
My Lords, I think, after the remarks which have fallen from my noble and learned Friend, it is scarcely necessary for me to say much in doing that which I regret being compelled to do, namely, state that I cannot, on behalf of the Government, accede to the measure which is proposed by the noble Marquess. The object of the Bill is to provide for the compulsory extinction of certain rights of servitude which have been enumerated by the noble Marquess, without any option whatever on the part of the owners of those rights to refuse or object to such extinction. The Bill gives power to extinguish such rights compulsorily, whether acquired by prescription or by deed; in other words, it gives power to set aside contracts against the wish of one of the parties interested. The noble Marquess has stated that this Bill is the same as that which he introduced last year, and that is no doubt the fact. He has also stated that at the time he introduced it last year, I appealed to him to withdraw it; but, at the same time, I asked him to elicit the views of the people in Scotland upon the subject, and as to whether they desired that such a measure should pass. The noble Marquess has now read one or two letters, the writers of which appear to desire that this measure should pass; but on the other hand, I desire to say that I, as Secretary for Scotland, have not received one single request or communication on the subject from any part of Scotland. I cannot, therefore, think that there is any great desire that this measure should pass. I would venture to call attention to this fact that the noble Marquess, in stating that as far as he knows a certain amount of interest in the Bill has been manifested, has simply 1088 shown that the interest is on one side only; he has not shown that those who have rights of pasturage or rights of divot, which are, I think, the two most important rights, have any wish that their rights should be compulsorily taken away from them, or have any desire to alter the existing state of matters. Last year I pointed out that the Bill might operate very injuriously against those who possess rights of pasturage and turbary, and I adhere to that opinion still. I think it would be very injurious if power were given to the owner of the solum to take away those rights. But not only is there that difficulty; there is also this further objection: it seems to me that this Bill is purely one-sided. It gives to the proprietor of the solum by application to the Court of Session or to the Sheriff the right to demand or exact that the lands over which the rights of servitude exist should be divided on payment of compensation; but, on the other hand, it gives no right to the owners of the servitude or solum should they desire to make an exchange to enforce it. Therefore, while it seems to me that the Bill might, in certain cases, do considerable injustice to the owners of the servitudes, it does not, on the other hand, give a corresponding power to them to exact from the landlords an exchange such as might be desired by the landlords themselves. It appears to me also that such a power as this is, as a general rule, absolutely unnecessary. There are certainly to my knowledge cases which have arisen in reference to the power of purchase where there would be no reason whatever to interfere compulsorily with such rights as have arisen either by purchase or exchange; and the very object which the noble Marquess wishes to carry into effect might; be attained without any further intervention of the law. It appears to me that there are means sufficient to meet the object which the noble Marquess has in view. With regard to the question of entails, that is a very complicated question; but I do not think that is a precedent which would justify the passing of such a measure as he proposes. The noble and learned Lord Watson has gone so fully into the legal aspect of the matter that I need not go further into it, but will merely say that I entirely concur in the 1089 views he has expressed. On the two grounds that I have explained, namely, that the Bill appears to be purely onesided, and that on the other hand inconvenience, if not loss, might be occasioned to the owners of servitudes I should ask your Lordships not to give a Second Reading to it. I may say, in conclusion, that I entirely concur with the expression of opinion in the letter of the Duke of Argyll that these servitude rights are inconvenient in themselves; but I do not, at the same time, think that sufficient ground has been shown for passing this measure. My Lords, I beg to move that the Bill be read a second time this day six months.

*The MARQUESS of HUNTLY
I have no wish to press this matter further after what has taken place, but I should like to remind your Lordships that the Bill provides either that the owner of the servitude can take its value in money or that the Sheriff can allocate to him land. I quite admit that if the parties were all free they could agree if they chose among themselves; but the difficulty is that there are these entails existing which prevent proprietors dealing with each other; and as you have already dealt with them by enactment, I cannot see why you should be unable to deal with servitude rights. I will only add that I would appeal to the Government in this, which is a similar case, to take up the subject in a Bill of their own.