Dispute as to existence of tenancy of agricultural holding–Three fields used in pursuance of agreement between neighbouring farmers–Evidence supported a tenancy from year to year of the fields—-Submissions that right of occupation was non-exclusive or that the proviso to section 2(1) of the Agricultural Holdings Act 1948 applied (on the ground that the agreement was for grazing or mowing only during some specified period of the year) rejected–Appeal from decision of county court judge dismissed
This was an appeal
from a decision of Judge Suddards at Bradford County Court in favour of the
plaintiff, John Midgley, the administrator of the estate of Herbert Midgley
deceased, in an action for trespass against the defendant, who had removed
agricultural machinery and driven cattle from three fields which had been used
by Herbert Midgley in pursuance of an arrangement with the defendant’s
predecessor in title. Judge Suddards had awarded the plaintiff £350 damages and
costs.
S Grenfell
(instructed by Warren, Murton & Co, agents for Last, Suddards & Co, of
Bradford) appeared on behalf of the appellant (defendant); P Ground (instructed
by Walker, Charlesworth & Foster, of Skipton) represented the respondent
(plaintiff).
Giving the
first judgment at the invitation of Cairns LJ, BRIDGE LJ said: This is a
dispute about three fields in hill farming country in Yorkshire. They form part
of Sun Side Farm near Halifax. The fields were on the edge of moorland. Sun
Side Farm used to belong to the Westermans. Adjoining Sun Side Farm was
Sunnyside Farm, and that belonged to the Midgleys. For many years there was an
amicable arrangement, to use a neutral term, between William Westerman and
Herbert Midgley that the three fields, Ordnance nos 44, 45 and 49, part of the
Westermans’ land, could be used by Mr Midgley. For that use he made an annual
payment initially of £20, later increased to £30, and that sum was paid each
year in December in advance. William Westerman owned Sun Side Farm jointly with
his brother Albert. Herbert Midgley farmed Sunnyside Farm and used the three
fields in question in conjunction with his son John. In 1972 or 1973 William
Westerman died. His brother Albert had lived at the farm, but he had little to
do with the management of it. When William died Albert decided to sell Sun Side
Farm, and in 1974 it was bought by the present defendant, Mr Stott. That was
when the dispute began.
Herbert
Midgley claimed that he was an annual tenant of the three fields. Mr Stott
disputed this. He sought to resolve the dispute in a rather drastic fashion. In
April 1975 he sent his son, who it is accepted was acting as his agent, on to
the land, and his son removed all the Midgleys’ agricultural machinery and
dumped it on the road and drove the cattle off the fields. In May 1975 Herbert
Midgley sued the defendant in the Bradford County Court for damages for
trespass. Unfortunately, in June 1975 Herbert Midgley died, so that from then
on both the original parties to the agreement under which the fields had been
occupied by the Midgleys for so many years were dead. The action was continued
in the name of John Midgley, Herbert Midgley’s administrator. In the action the
basis of the claim was that the plaintiff was entitled to a yearly tenancy of
the three fields. That was denied. The matter came for trial on April 14 of
last year in the Bradford County Court before His Honour Judge Suddards. He
found in favour of the plaintiff, and he awarded £350 damages, with costs on
the appropriate scale. From that decision the defendant now appeals.
In the appeal
no issue arises on the quantum of damages for the trespass, nor as to the fact
of the trespass if the judge were right in holding that the plaintiff was, in
law, a tenant of the land. The only issue is as to the existence of the
tenancy. As I understand it, the plaintiff relied on the evidence as showing
that he was entitled to a tenancy at common law, alleging that the proper
inference from the evidence was that he had been granted a tenancy of the land
from year to year. But, whether that were right or not, he was also entitled to
rely on the provisions of section 2 (1) of the Agricultural Holdings Act 1948,
which provides as follows:
Subject to
the provisions of this section, where under an agreement made on or after the
first day of March, 1948, any land is let to a person for use as agricultural
land for an interest less than a tenancy from year to year, or a person is
granted a licence to occupy land for use as agricultural land, and the
circumstances are such that if his interest were a tenancy from year to year he
would in respect of that land be the tenant of an agricultural holding, then,
unless the letting or grant was approved by the Minister before the agreement
was entered into, the agreement shall take effect, with the necessary modifications,
as if it were an agreement for the letting of the land for a tenancy from year
to year: Provided that this subsection shall not have effect in relation to an
agreement for the letting of land, or the granting of a licence to occupy land,
made (whether or not the agreement expressly so provides) in contemplation of
the use of the land only for grazing or mowing during some specified period of
the year. . . ."
Mr Grenfell,
for the appellant, submits that the judge was wrong here on the basis that the
evidence did not establish the creation of a yearly tenancy at common law, and
that the Act of 1948 could not properly be relied on by the plaintiff to
establish such a tenancy, first, because the evidence showed that the Midgleys’
occupation of the land was not exclusive, and as a matter of law an exclusive
right of occupation must be shown to support either such a tenancy or such a
licence as to attract the operation of section 2(1) of the Act of 1948.
Secondly, and alternatively, he submits that the evidence showed that this was
a case falling within the proviso and, therefore, was excepted from the
operation of the main part of the subsection.
The difficulty
in Mr Grenfell’s way–and he has battled with it manfully, if I may say so–is
that the evidence was really all one way. That was not surprising, because Mr
Stott had come upon the scene after the material events which determined the
character of the Midgleys’ right to occupy the Westerman fields, and Mr Stott,
who was the only witness called for the defence, was able to give no evidence
relevant to this issue. All the evidence relevant to the issue came from the
several witnesses who were called for the plaintiff.
I need refer
only briefly to the most material passages in the evidence. Mr John Midgley
said in evidence-in-chief: "We occupied and farmed fields 44, 45 and 49;
had done since 1958. We took hay off them and grazed them, when not making hay,
manured them every year. Sheep in winter time and both later." I think that means both sheep and cattle. In
cross-examination he said: "These fields were used all the year
round." Of the winter 1974-75, when
it was suggested that the land had been quite vacant, he said: "There had
been three heifers on the fields all winter." He also gave evidence, which was never
disputed, of the annual payments of £20 initially, and £30 later, in December
in advance for each year’s use. Albert Westerman was called, and he gave
evidence without objection, albeit he prefaced what he said by the statement:
"I only know the arrangement between Herbert Midgley and my brother by
what my brother told me." His
relevant evidence was that "It was up to him"–meaning Mr
Midgley–"what he had on the fields. When it came to November there was no
grass on; he was entitled to put his sheep on in November and December if he
wanted. In fact in any month of the year."
Finally, a completely independent witness, Mr Sunderland, was called for
the plaintiff. He farmed other land adjoining the disputed fields, and had done
so since 1964. He said: "I know Midgleys. As far as I’ve seen them they
have used the fields all the year round, they’ve mucked it every year–I helped
them do it first four years. They’ve grazed it, mucked it, mowed it and taken
crop."
The learned
judge in his judgment said this: "It is clear there was an agreement here
between Mr Westerman and Mr Midgley–both dead–for the letting of the land.
Admittedly for grazing or eating"–I am not sure what that means, but it
does not matter–"Land not used for anything else. It was not for a
specified period but for a full year."
Later in his judgment he said: "I am satisfied there was a tenancy
from year to year at a rent of £30 per annum." I take that to be a finding that the evidence
showed that there was a tenancy from year to year at common law, without resort
to section 2(1) of the Act of 1948.
I am bound to
say that on that footing I find it difficult to see how this decision can in
any way be criticised. But the endeavour to mount an appeal against it in the
face of the provisions of the 1948 Act is really, with respect, a hopeless one.
Mr Grenfell has drawn our attention to a decision in the House of Lords, Bahamas
International Trust Co Ltd and Another v Threadgold [1974] 3 All ER
881, in the
To come
within section 2 (1) of the Agricultural Holdings Act 1948, the licence granted
under an agreement must be a "licence to occupy land for use as
agricultural land." To satisfy this
requirement the right of occupation for agricultural purposes must be an
exclusive right under which the grantee is entitled to prevent the grantor and
any other person authorised by the grantor from making any use of the land, at
any rate for agricultural purposes, during the period of the grant.
Mr Grenfell
seeks to rely on that and says that there was evidence here to show that the
Midgley’s right of occupation of the disputed land was not exclusive. If the
point were open to him, it is fair to say that, in my judgment, it would be
bound to fail, because the high-water mark in support of the contention that
the Midgley occupation was not exclusive was a sentence in the hearsay evidence
of Mr Albert Westerman, who said: "We"–meaning the
Westermans–"would have had the right to use the fields if we had wanted,
provided we were not doing any damage to the crops." Apart from being hearsay evidence and, as I
think, not evidence of fact, but an inference of law put forward by the
witness, the learned judge said in terms that he did not think that Albert
could remember anything about the agreement. So the evidential basis for Mr
Grenfell’s point really is not there. But the shorter answer to the point is
that, since it was a point of law which was not taken in the county court, it
is not open to Mr Grenfell in this court in any event.
On the
evidence to which I have referred it is, with respect, quite impossible to
suggest that this agreement between the Midgleys and the Westermans, whether it
was an agreement for a tenancy or a licence, came within the proviso of section
2(1) of the Act as being for some specified period of the year. It was
obviously an agreement which entitled the Midgleys to use the land all the year
round.
For those
reasons I would dismiss the appeal.
Agreeing,
ROSKILL LJ said: Mr Grenfell has battled against overwhelming odds, but I am
afraid that there was abundant evidence to justify the conclusion to which the
learned judge came. The trouble is that the appellant, the defendant in the
court below, took the law into his own hands, and while every effort has been
made to show that the plaintiff ought not to have been on that land, I am
afraid that those efforts have no foundation.
As regards the
point on the Bahamas International Trust Co Ltd v Threadgold
case, the first answer is that that point is not open to Mr Grenfell in this
court, as my Lord has said, because it is a point of law which was not taken in
the court below. The second answer is that, even if the point had been open, I
do not think there was any evidence before the county court judge that this
occupation was other than exclusive, and that it had been exclusive for some
period of time.
I agree that
the appeal should be dismissed.
Also agreeing,
CAIRNS LJ said: I agree that the appeal should be dismissed for the reasons
given by Bridge LJ in his judgment, and I will add a few words to indicate why
it appears to me that each of the grounds of appeal raised by the notice of
appeal must fail. The first ground is: "That the finding of the learned
judge that there existed a tenancy from year to year was against the weight of
the evidence." It appears to me
that the evidence, taken as a whole, practically all tended to support the
tenancy from year to year. If there was any conflict between the evidence of Mr
Westerman and Mr Midgley, or, what seems to me more to be the case, conflict
between one part and another of the evidence of Mr Westerman, it was a conflict
which the learned judge was perfectly entitled to resolve in favour of the
plaintiff.
It is
contended in several additional grounds of appeal that because it is impossible
to determine the exact terms of the tenancy agreement, either there was no
tenancy agreement, or that such agreement ought to have been held to be void.
That is a quite impossible contention. Where the parties to an oral agreement
are both dead, all that the court can do is to infer the terms of the agreement
from the way in which the parties behave. The fact that it is impossible, for
instance, to determine the exact date of the commencement of the term is quite
immaterial.
It was then
alleged that the judge misdirected himself in holding that the failure to pay
rent for a period since December 1973 was an unimportant feature of the issue.
In my view, the learned judge was entirely right in so holding. The fact that
the tenant does not pay rent does not seem to me to be material. Nor was there
any basis on which the judge could have held, as it is suggested he should have
held, that there was a forfeiture or surrender of the tenancy. Finally, it was
contended that the concurrence of the plaintiff in the defendant’s demand for
the removal of some machinery from the land was something which ought to have
led the judge to take the view that there was no tenancy. The judge took the
view that the plaintiff concurred with that request simply to avoid trouble.
That seems to me to be a perfectly justifiable inference. Certainly that
inference is not one which ought to have led to the conclusion that there was
no tenancy.
For those reasons,
in addition to those that have already been given, I agree that the appeal must
be dismissed.
Appeal
dismissed, with costs.
