Decision of the Scottish Land Court

Forsby Properties AB and Another (Applicants)
v
David Charles Andrew MacQueen (Respondent)

Case reference SLC/45/18
before
Iain F Maclean, Deputy Chairman, and Tom Campbell
31 July 2020

Introduction

[1] Anyone who has ever travelled between Perth and Inverness by train or car will have passed through Dalmagarry Farm, Moy, Inverness-shire, because the farm is bisected by the railway line and the parallel running A9 public road. Dalmagarry has been “Farmed by the MacQueen family since 1908” according to the letterhead of the invoices issued by the family’s farming business. The MacQueens formerly farmed the whole of Dalmagarry Farm, consisting of land both to the east and to the west of the railway line and the A9, as tenants. The Respondent’s parents purchased the principal part of Dalmagarry Farm, extending in total to some 688 acres, all but three small fields of which lie to the east of the A9, from their then landlords, the Forestry Commission, in 1972. The present application concerns only such part of Dalmagarry Farm, lying to the west of the railway line and forming part of the extensive tract of land known as Dalmagarry or Tomatin Moor, as remains in tenancy under the Applicant’s ownership. Dalmagarry Moor is a grouse moor, upon which very considerable capital and revenue sums have been expended in recent times by successive heritable proprietors, with a view to enabling and enhancing the driven grouse shooting. Providing that overgrazing is avoided, the presence of sheep can be advantageous to the functioning of grouse moors, and on many grouse moors, landowners have entered into mutually beneficial management agreements with sheep graziers in terms of which the use by the latter of the grazing is regulated in the interests of habitat enhancement. Informal agreements of this nature were entered into annually in respect of Dalmagarry Moor for a number of years until 2015, when the Applicant and the Respondent tried, but failed, to agree new terms. In the wake of the failure of those negotiations, relations between the parties deteriorated and the present dispute took form. It is not, or at any rate is no longer, disputed by the Applicant, that the Respondent is the secure agricultural tenant, under a 1991 Act tenancy, of some part of Dalmagarry Moor. What is very much in dispute is over how much of Dalmagarry Moor the Respondent’s rights as agricultural tenant extend.

Procedure

[2] We heard proof over 6 days in total, on 3, 4, 5, 6 and 20 September 2019 in Carrbridge Village Hall and 8 October 2019 back at George House, Edinburgh, the last two days being dedicated to hearing parties’ closing submissions. On 19 September 2019, the members of the court spent more than five hours of a fine autumn day walking over Dalmagarry Moor in order to familiarise themselves with its topography and to locate on the ground the various notional boundaries of the subjects of lease to which reference had been made in the course of the evidence. At the hearing, Sir Crispin Agnew of Lochnaw Bt, QC, appeared with Robert Sutherland, Advocate, for the Applicant, instructed by Gillespie Macandrew Solicitors, Edinburgh. The Respondent was represented by Timothy Young, Advocate, instructed by Murchison Law, Solicitors, Inverness. We take this opportunity to record our gratitude to Counsel for their efforts in preparing draft findings in fact and extensive written submissions, the contents of which we do not attempt to reproduce in their entirety in the body of this note, but which have informed our subsequent deliberations and been taken into account by us in what follows.

The Joint Minute

[3] At the close of evidence, Counsel tendered to the court a joint minute in terms of which it was agreed that for the purposes of the present application, the productions lodged with the court up to and including 3 September 2019 (the date upon which the last productions were admitted into the process), under exception of Productions nos. 111, 120 to 122 and 139 in the court’s Inventory of Productions, were to be treated as true and original documents which were what they bore to be, and might be received and accepted in evidence in the application without the necessity of calling witnesses to speak to them. Of the five excepted productions, two (Productions 111 and 139) were the parties’ respective expert reports, to which the authors came to court to speak. The other three excepted items were lodged on behalf of the Applicant, and were, or at least purported to be, statements provided by persons with connections to the Applicant’s predecessors in title as heritable proprietor of Dalmagarry Moor, recounting their historic understanding of the nature and extent of the MacQueen family’s rights in connection therewith. None of the three authors of these statements was included in the Applicant’s list of witnesses and called to speak to his or her statement and no explanation was proffered by the Applicant for their non-appearance. When Senior Counsel sought to adduce from other witnesses evidence as to the contents of these productions, objection was taken by Junior Counsel for the Respondent, who initially submitted not merely that little or no weight should be accorded to such evidence because the authors had not been made available to be cross-examined but that it was inadmissible as a matter of law, and could not be taken into account even for such negligible probative value as it might have. We allowed the evidence to be admitted under the usual reservations, and we were further addressed by Counsel on the issue of its admissibility in the course of their closing submissions. We shall return to the admissibility issue later in this note.

The Applicant

[4] The application was commenced in the name of Forsby Properties AB, a Swedish registered company. At a procedural hearing held in Edinburgh on Wednesday 28 August 2019, the Applicant moved, of consent of the Respondent, to add Dalmagarry Properties Limited, a company registered in Scotland, as the Applicant in conformity with rule 10(1)(d)(iii) of the Rules of the Scottish Land Court 2014 (“the 2014 Rules”). The background to that motion was that by Disposition dated 3 April 2019, Forsby Properties AB had disponed the subjects at Dalmagarry, Tomatin, Inverness-shire registered in the Land Register of Scotland under Title Number INV29435, including Dalmagarry Moor, to Dalmagarry Properties Limited with entry as at 15 December 2017 notwithstanding the date of execution of that conveyance [Production 124]; although the effect of that disposition was to substitute the latter company for the former as the Respondent’s landlord, we were informed that the Respondent had insisted that the involvement of Forsby Properties AB in the application continue to be acknowledged in the instance in case any issue should arise later in relation to the allocation of liability for, and subsequent enforcement of any order awarding, expenses. The motion to amend the instance was allowed in an order issued by the court on 29 August 2019; Forsby Properties AB and Dalmagarry Properties Limited are referred to in this note collectively as “the Applicant”. Both companies are controlled by Niklas Lundberg, a Swedish national, who gave evidence as the principal witness for the Applicant. Mr Lundberg owns 100% of Forsby Properties AB, which in turn owns 100% of Dalmagarry Properties Limited, the latter a company set up after the acquisition of Dalmagarry Estate as a vehicle to own the Scottish property.

The witnesses

[5] At the hearing, evidence was led for the Applicant from (i) Mr Lundberg; (ii) Richard M. Seaman, MRICS, IRRV, of Goldsmith & Co., Chartered Surveyors and Estate Agents, Edinburgh, who acts as the Applicant’s Estate Factor; and (iii) John M. McDiarmid MBE, the last named in the capacity of expert witness. The Respondent himself gave evidence, along with his wife Mrs Joan M. MacQueen and his cousin Andrew J. (known as “Iain”) MacQueen. Expert evidence for the Respondent was adduced from Atholl Newlands BLE (Hons) MRICS, of Bowlts, Chartered Surveyors, Pluscarden, by Elgin.

The craves in the application

[6] In the application as originally framed, the crave was for an order finding and declaring that:

“the Applicant is the landlord and the Respondent is the tenant under a lease of 400 acres of ground at Dalmagarry Moor under the Agricultural Holdings (Scotland) Act 1991, which extent of ground is shown outlined and hatched in red on the plan produced with this application and annexed hereto [Production 2], and which lease is operating by tacit relocation from 28 May each year to 27 May the following year, at a rent of £150 per annum.”

[7] At the procedural hearing on 28 August 2019, the Applicant moved a minute of amendment, lodged with the court the previous day, to insert an alternative crave that, esto the court did not find that the lease described in the first crave extended to 400 acres, the court should find and declare that the Applicant and the Respondent were the parties:

“under a lease of 1092 acres of ground at Dalmagarry Moor under the Agricultural Holdings (Scotland) Act 1991, which extent of ground is shown outlined and hatched in blue on the alternative plan produced herewith and annexed hereto [Production 126], and which lease is operating by tacit relocation from 28 May each year to 27 May the following year, at a rent of £150 per annum.”

[8] That motion was opposed by the Respondent, but we were not persuaded that any prejudice to him would result from its allowance, notwithstanding that the proof in the case was scheduled to commence the following week, on Tuesday 3 September 2019, and amendment in terms thereof was allowed in our order dated 29 August 2019.

[9] After the evidence had been heard, Senior Counsel at the bar moved to amend both of the Applicant’s craves by breaking them down into three parts, (a), (b) and (c); so that, if allowed, the first crave would be for an order finding and declaring that:

(a) the Applicant is the landlord and the Respondent is the tenant under a lease of 400 acres of ground at Dalmagarry Moor under the Agricultural Holdings (Scotland) Act 1991; and (b) which extent of ground is shown outlined and hatched in red on the plan produced with this application and annexed hereto [Production 2], and (c) which lease is operating by tacit relocation from 28 May each year to 27 May the following year, at a rent of £150 per annum.”

and the second crave would be adapted in the same way. This proposed amendment was opposed by the Respondent and we took the making of our decision as to whether or not to allow it to avizandum. The thinking behind the proposed amendment, we were given to understand, was that it would enable us, if for instance, we were persuaded on the evidence that the Respondent’s tenancy did indeed extend over an area of 400 acres, or an area of 1092 acres, of Dalmagarry Moor, but not the particular areas of 400 acres or 1092 acres, the boundaries of which were depicted on the plans lodged by the Applicant as Production 2 and Production 126 respectively, we could make a declaratory order to that limited effect, holding over the issue of where the 400 acres or 1092 acres in tenancy were situated to be determined in subsequent proceedings.

[10] The Applicant’s post-evidential motion to amend the craves of the application in the manner above described was foreshadowed by, and may be taken to be a consequence of, an objection taken by Senior Counsel for the Applicant to a line of questioning pursued by Junior Counsel for the Respondent during his cross-examination of Mr Seaman. It emerged in his evidence that it was Mr Seaman who had plotted the boundaries of the areas of 400 acres and 1092 acres depicted on Productions 2 and 126 using digital mapping software; somewhat to our surprise, the tenor of his evidence as to the basis upon which he had placed those areas where he did – extending westwards in a block bounded to the north by the northernmost boundary of Dalmagarry Moor and to the south by (but excluding) the Applicant’s internal estate road – was not that he was seeking to reflect, on the basis of historical evidence from some source or other, his understanding of the boundaries the parties to the lease at some point in time had agreed or otherwise acknowledged, but rather his own personal opinion as to where, if starting with a clean slate, such a grazing area might conveniently be situated, convenience here being assessed predominantly, we took from his evidence, from the Applicant’s point of view.

[11] It was when Junior Counsel for the Respondent sought to explore this aspect of Mr Seaman’s evidence in cross-examination that Senior Counsel for the Applicant intervened, arguing that whilst it was open to the Respondent on his pleadings to dispute the size of the areas of 400 acres and 1092 acres contended for by the Applicant, it was not open to him to take issue with their locations as they had been plotted on Productions 2 and 126. When it was put to him by the court that the Respondent’s general denial might be taken to cover not only the size of the subjects of lease, but also where the Applicant was offering to prove they were situated, Senior Counsel demurred: it was his position that it was incumbent upon the Respondent, as a matter of fair notice, if he wanted to challenge that aspect of the Applicant’s case, positively to aver what other area of 400 acres or 1092 acres it might be.

[12] We rejected that argument and repelled the objection. The Respondent, in his pleadings, meets the Applicant’s case that his lease is of 400 acres of ground at Dalmagarry Moor as shown outlined and hatched in red on Production 2, or alternatively is of 1092 acres of ground there as shown outlined and hatched in blue on Production 126, with a general denial. We do not agree that it was incumbent upon the Respondent, as a matter of fair notice, to offer to prove where else, other than as indicated by the Applicant, the 400 acres or 1092 acres might be situated were the area of the subjects of lease to be indeed either 400 acres or 1092 acres, an underlying hypothesis that the Respondent, of course, utterly rejects. Further, and in any event, the Respondent, in his answers, had placed a call on the Applicant with the object of drawing out the Applicant on the factual basis of the latter’s somewhat cryptically stated “understanding of [the] 400 acres area” as it had been depicted on Production 2, but that call went unanswered until Mr Seaman gave his evidence in the witness box.

The answers

[13] The Respondent denies the Applicant’s averments that his tenancy is limited in its extent to either the area of 400 acres or the area of 1092 acres identified in the Applicant’s craves. The Respondent explains and avers in his answer 2 that he:

“is the successor-in-title to an agricultural tenancy in terms of the Agricultural Holdings (Scotland) Act 1991 (cap. 55) for hill grazings extending to 1700 acres or thereby at the North end of Tomatin Moor (“the Grazings Tenancy”). The Respondent’s family has used the subjects of the Grazings Tenancy for over a hundred years. The Grazings Tenancy itself has remained unchanged in extent and nature since, at least, around 1945 or 1946 …”

There follows a lengthy recitation of the history of the tenancy to which the Respondent claims to have succeeded, but it fairly may be stated that the Respondent’s extensive pleadings are studiedly non-committal as to how and when the lease, upon which his claim to possess part of Dalmagarry Moor rests, actually came into being. Production 34 is the Respondent’s IACS [Integrated Administration and Control System] map and it shows that part of Dalmagarry Moor the Respondent claims to occupy as extending to 713.44 hectares (1763 acres): the Respondent testified that the boundaries shown on his IACS map reflect his understanding of the subjects of lease.

[14] Albeit that the Respondent, in the course of seeking to resist the making by the court of an order in terms of one or other of the Applicant’s craves, positively avers in his answers that he is the successor-in-title to a 1991 Act tenancy “for hill grazings extending to 1700 acres or thereby at the North end of Tomatin Moor”, he does not counterclaim for declarator to that or similar effect, so that even were the court to be with him on the issue of the extent of the subjects of lease, it would have no means, in this process, of giving effect to such a finding, and thereby rendering the issue res judicata as between the parties. Junior Counsel for the Respondent, in his closing submissions, invited the court, if we were persuaded, on the evidence, that the Respondent’s position on the extent of the subjects of lease was well founded, to make a formal finding in fact to that effect, which the Respondent might later rely upon to establish that fact in any subsequent litigation between the parties without the necessity of revisiting all of the same evidence, and he submitted that the recent decision of the Inner House in G v Glasgow City Council [2019] CSIH 45 opened the door to that possibility. This is another point that we shall require to address at a later stage in this note.

The documentary evidence

The history of Dalmagarry Farm and the Dalmagarry Moor grazings

[15] Although somewhat patchily documented in parts, the history of Dalmagarry Farm and the Dalmagarry Moor grazings associated with it through the course of the twentieth century was, at least in its broad outline, not a matter of dispute between the parties. Dalmagarry Farm and Dalmagarry Moor were formerly both part of the patrimony of The Mackintosh of Mackintosh (“The Mackintosh”), with title thereto held by his trustees (“the Mackintosh Trustees”). What follows is a summary of that history derived principally from the contents of the agreed documentary productions.

Dalmagarry Farm

[16] Extracts from the Valuation Roll for the Parish of Moy in the County of Inverness for the years 1909-1910 [Production 47] and 1919-1920 [Production 48] both show an Andrew Macqueen [sic – where cited documents show the surname without a capital “Q” we follow that usage] as the tenant of “House and Land” situated at Dalmagarry at a yearly rent of £50. An extract from the Valuation Roll for the year 1929 - 1930 [Production 49] shows Andrew Macqueen once again as the tenant of “House and Land”, Dalmagarry, at a yearly rent of £50, but he appears in that Valuation Roll also as the tenant of “House and Land”, Tullochclury, at a yearly rent of £20. In the extracts from the Valuation Roll for the years 1939-1940 [Production 50] and 1944-1945 [Production 51], the yearly rent for “House and Land”, Dalmagarry, has been reduced to £43 and Andrew Macqueen, Dalmagarry, is shown also as the tenant of “House and Land”, Tullochclury, at a reduced rent of £17. In the extracts for both 1939-1940 and 1944-45, Andrew Macqueen is shown in an adjacent entry also as the tenant of “House, Mill and Land” at Culfintach at a yearly rent of £10.

[17] Changes are rung in the Valuation Roll for the year 1945-1946 [Production 52]. There are two entries expressly referring to Dalmagarry, the first labelled “Land (part of)”, Dalmagarry, showing Andrew Macqueen as the tenant and “J. A. Mackle” as the proprietor, at a yearly rent of £10. The second entry is for “House and Land (part of)”, Dalmagarry, with Andrew Macqueen as the tenant at a yearly rent of £33, with immediately above it, an entry for “House, Mill and Land” at Culfintach tenanted by Andrew Macqueen, Dalmagarry, at a yearly rent of £10, and immediately below it, an entry for “House and Land”, Tullochclury, at a yearly rent of £17. The proprietor of both of these subjects is entered in the roll as the “Forestry Commission (Scotland)”, but on the copy of the extract as lodged, this has been scored out and a reference to the Mackintosh Trustees interlineated in ink in its place. Andrew Macqueen died on 17 April 1948, and in the extract of the Valuation Roll for the year 1949-1950 [Production 53], to the contents of which we were not taken in the course of the evidence, there are adjacent entries for “House and Land (part of)”, Dalmagarry, and “House and Land”, Tullochclury, both in the proprietorship of the Secretary of State for Scotland, per the Forestry Commission (Scotland) and tenanted by the “Reps. of Andrew Macqueen, Dalmagarry”, at yearly rents of £32 15s. and £17 respectively. There is no separate entry in the extract of the Valuation Roll for the year 1949-1950 that corresponds to the entry for “Land (part of)”, Dalmagarry, at an additional yearly rent of £10, that appeared in the Valuation Roll for the year 1945-1946. The entry pertaining to Culfintach is now merely for “Land”, the yearly rent for which, due by the Reps. of Andrew Macqueen, Dalmagarry, is stated to be at the reduced level of £3.

[18] The Andrew Macqueen referred to in the extracts from the Valuation Rolls is the grandfather of the Respondent. By Minute of Agreement dated 25 and 27 February 1936 [Production 54], The Mackintosh and Andrew Macqueen, on the narrative that “the parties considering that they have come to an agreement regarding the tenancy of the said Farm of Dalmagarry and Tullochclury and that it is necessary to reduce the agreement to writing”, agreed to the let by the former to the latter of “(First) All and Whole the Farm of Dalmagarry at present occupied by and possessed by [Andrew Macqueen], together with the Dwelling House and Offices thereto attached”, and “(Second) Part of the lands of Tullochclury at present occupied and possessed by” Andrew Macqueen, under reservation of the Tullochclury dwelling house and offices, in which Andrew Macqueen was to have no interest or concern. The rent payable was to be £43 for the Farm of Dalmagarry and £17 for Tullochclury, “a total of £60 Sterling, per annum … payable half yearly at the terms of Martinmas and Whitsunday, commencing the first term’s payment at Martinmas [1936] for the half year from Whitsunday to Martinmas [1936] …” The term of entry was as at Whitsunday 1936 and the duration of the let seven years from Whitsunday 1936. The tenant was obliged to crop and cultivate the land according to the rules of good husbandry and leave the land in regular rotation of cropping according to a six course shift. The landlord reserved “all game &c. on the lands hereby let, together with a right to shoot the same.” The contents of the Minute of Agreement of 1936 thus confirm the Valuation Roll evidence that the subjects tenanted by Andrew Macqueen historically were held by him under a number of separate leases, not one unitary lease.

[19] Although no copy of the conveyance is produced, it is not in dispute that the Forestry Commissioners acquired, inter alia, the subjects at Dalmagarry and Tullochclury of which Andrew Macqueen was the tenant by way of a Feu Disposition in their favour by the Mackintosh Trustees dated 22 and 28 May and 11 June and recorded in the Division of the General Register of Sasines applicable to the County of Inverness for publication and also as in the Books of the Lords of Council and Session for preservation on 8 October, all in the year 1945. Reference is made to that deed in the body of a subsequent deed [Production 58] in the progress of titles in relation to these subjects.

[20] Subsequent to the vesting of ownership in the Secretary of State for Scotland, statutory successor to the Forestry Commissioners by virtue of the Forestry Act 1945, and after the death of Andrew Macqueen on 17 April 1948, the Secretary of State, in his capacity as heritable proprietor of “the farm of Dalmagarry and Tullochclury”, entered into a Minute of Agreement dated 24 September and 4 October, both 1948 [Production 55] with Andrew Macqueen’s sons, Charles Alexander Macqueen and John Thomas Macqueen, in terms of which the two brothers were accepted in room and place of the late Andrew Macqueen as joint tenants and the survivor of them and his heirs under what was variously referred to as “the foregoing” or “the said” Minute of Agreement, in terms of which Andrew Macqueen had been the tenant of the farm of Dalmagarry and Tullochclury. The Minute of Agreement of 1948 does not otherwise identify the foregoing or said Minute of Agreement, but we understand it to be common ground between the parties that the reference back must be to the Minute of Agreement of 1936, by this point in time running on tacit relocation, its stipulated term of seven years having expired some years previously.

[21] The Minute of Agreement of 1936 is the only written lease pertaining to any part of Dalmagarry Farm that features in the evidence in this case. It is a striking fact that the Minutes of Agreement of 1936 and 1948 made their first appearance in these proceedings when lodged as productions by the Respondent’s agents on 19 August 2019, the last date for timeous lodging before the date fixed for the hearing in terms of rule 23(1) of the 2014 Rules. The Respondent’s pleadings made no express reference to either of these documents, notwithstanding that the Minute of Agreement of 1936 is the legal warrant upon which, on the Respondent’s account, his entitlement to possess part of Dalmagarry Moor ultimately must rest. The subjects of the Minute of Agreement of 1936 were described in only the most general of terms (“All and Whole the Farm of Dalmagarry at present occupied by and possessed by [Andrew Macqueen]”) and it seems to us that such evidence as was led by the Respondent in respect of what he terms in his pleadings his predecessors’ use of “the subjects of the Grazings Tenancy” in the period before the commencement of the lease constituted by the Minute of Agreement of 1936 is relevant only to the extent that it may shed light on what part of Dalmagarry Moor Andrew Macqueen occupied and possessed as at that date.

[22] The subsequent history of the part of Dalmagarry Farm lying for the most part to the east of the A9 may be shortly stated. Although once again, the documentation produced by the Respondent does not vouch for the whole story, it is not disputed by the Applicant that the joint tenancy of Dalmagarry Farm between the two Macqueen brothers, the existence of which was recognised in the Minute of Agreement of 1948, came to an end within two or three years (John Thomas MacQueen left to manage a farm in Aberdeenshire) and that the Respondent’s father, Charles Alexander MacQueen (“Charles MacQueen”) subsequently was accepted by the landlord, the Secretary of State for Scotland, as tenant of Dalmagarry Farm in his own right. By Feu Disposition by the Secretary of State for Scotland in their favour dated 10 and 24 November and recorded on 6 December, all in the year 1972, the Respondent’s father and mother, Charles MacQueen and Mrs Euphemia Mary Margaret [known as “Eva”] MacQueen (“Mrs Eva MacQueen”), as trustees of the firm of C.A. MacQueen and E.M. MacQueen, Farmers, became heritable proprietors of:

“ALL and WHOLE the lands and Farm of Dalmagarry extending to Six hundred and Eighty Eight acres or thereby Imperial Standard Measure situated in the Parish of Moy and Dalarossie and County of Inverness and shown coloured pink, green and brown including the red verges on the Plan annexed and signed as relative thereto.”

Neither of the Respondent’s parents is now alive, and Dalmagarry Farm is operated by a family farming partnership in which the Respondent and his wife Mrs Joan MacQueen are partners.

Dalmagarry Moor

[23] We now cross the A9 and railway line to consider the salient elements of the history of Dalmagarry Moor and the grazings rights exercised by three generations of the MacQueen family thereon. By Disposition dated 17, 23 May and 5 June and recorded on 15 June 1945 [Production 56], the Mackintosh Trustees conveyed to Joseph Aloysius Mackle a tract of land in Inverness-shire consisting of a number of different parts, including the subjects described (FIFTH) as:

“ALL and WHOLE those portions of the grazings of the farms of Invereen and Dalmagarry lying on the west side of the said County Road from Daviot to Tomatin bounded on the north partly by other subjects belonging to us as Trustees foresaid and partly by the subjects (FIRST) and (SECOND) hereby disponed; on the east by the said County Road and the arable lands of Dalmagarry; on the south by the Estate of Tomatin and on the west by the Estate of Inverernie …”

In a later clause in the deed, dealing with the assignation of rents, it was provided that “the proportion of the rent of that part of the Farm of Dalmagarry hereby disponed shall be ten pounds”; a provision in the same terms was included in respect of the neighbouring (situated immediately to the south) farm of Invereen.

[24] After the sale to Mr Mackle had been concluded, Anderson, Shaw & Gilbert, Inverness, the law agents acting for the sellers, the Mackintosh Trustees, wrote to Andrew Macqueen. In their letter to him dated 22 June 1945, it was recounted that the subjects sold by the Mackintosh Trustees to Mr Mackle had included “the hill grazing tenanted by you on the West side of the County Road. The proportion of your rent allocated in this area sold to Mr Mackle is £10.” Drawing the strands together, the letter continued that:

“The Trustees are also feuing to the Forestry Commissioners certain areas of land and these comprise the remainder of your farm of Dalmagarry (grazing and arable) along with the lands of Tullochclury and also Culfintach. The balance of your rent of £33 for Dalmagarry will be paid to the Forestry Commission and they will also get the rent of Tullochclury and Culfintach.”

[25] The following year, the subjects described (FIFTH) in the disposition in his favour were sold on by Mr Mackle. The Respondent was able to produce, and lodged with the court on 5 July 2018, a copy of the original printed and bound sales particulars for what was to be a sale by auction in the Caledonian Hotel, Inverness on 3 September 1946 [Production 32]. Lot 18 in that sale was “THE GRAZING AND SPORTING LANDS comprising PART OF DALMAGARRY and INVEREEN”, extending in area to 2993 acres, 0 roods and 5 poles, and shown coloured green on a plan published for convenience of identification and folded inside a pocket in the back cover of the sales particulars. Lot 18 was described as “a separate and excellent sporting area of moorland.” It was noted that a central drive through Lot 18 had produced as many as 600 brace of grouse. A schedule referred to “Grazing” over the 2993.040 acres area, with the remark that “The grazing rights are at present let to Messrs. Andrew MacQueen and J. Dunbar on yearly tenancies at an annual rental of £10 respectively.” A further note summarised the total actual and estimated revenue per annum from Lot 18 as £532 17s. 6d., made up of an estimated value of the shooting (based on pre-war rents, when the moors were last shot) of £510, £20 in respect of grazing rentals as above, and a £2 17s. 6d. rental payment in respect of a wayleave in favour of the Grampian Electricity Supply Co. The contents of this schedule were incorporated into the overall Schedule of Lots in the sale, in which the Dalmagarry Grazings and the Invereen Grazings and the names of their respective tenants were listed against Lot 18 in consecutive lines, with the total acreage of 2993.040 acres appearing only in the second line, against the entry for the Invereen Grazings; in other words, there was no breakdown of that overall area into a Dalmagarry part and an Invereen part. The area shown coloured green on the plan supplied with the 1946 sales particulars (“the 1946 sales particulars plan”), as lodged by the Respondent as part of Production 32, appears to have been divided into two parts by a line that runs from the western to the eastern border of Lot 18. The line consists of two straight sections that together form a “dog-leg”. It was the Respondent’s position in his evidence-in-chief that this line represented the boundary between the Dalmagarry Grazings and the Invereen Grazings, the former being the area lying above (i.e. north of) that line. The dog-leg line marked on the 1946 sales particulars plan puzzles us. It does not reflect any physical feature, such as a fence, on the ground, because there never was any such feature at that location. Given that the 1946 sales particulars themselves do not present Lot 18 and its near 3000 acres as being formally divided into a Dalmagarry part and an Invereen part, it is not obvious what purpose the depiction of the dog-leg line was intended to serve, and we cannot exclude the possibility that it may have been marked on later.

[26] By Disposition dated 22 November and recorded on 4 December, both 1946 (“the 1946 Disposition”) [Production 57], Mr Mackle conveyed to Mrs Florence Mary Bulloch of Tomatin:

“ALL and WHOLE those portions of the lands known as Invereen and Dalmagarry extending to Two thousand nine hundred and ninety three acres and five poles or thereby in the Parish of Moy and County of Inverness lying on the west side of the public road from Inverness to Perth”,

with the boundaries thereof described both by means of a bounding description in the body of the deed and by reference to a plan annexed and subscribed by Mr Mackle as relative thereto. It was provided in the deed that the plan and the extent, “though believed to be correct, are not guaranteed.” Mrs Bulloch was a neighbouring landowner: the subjects disponed to her by Mr Mackle were bounded on or towards the south by Tomatin Estate already in her ownership.

[27] After the death of Mrs Bulloch, ownership of Tomatin Estate, as augmented by the additional subjects lying immediately to the north thereof purchased by her from Mr Mackle, passed into the hands of trustees (“the Tomatin Trustees”) appointed by and acting under her will and the various codicils thereto. In 1977, the Tomatin Trustees advertised Tomatin [Dalmagarry] Moor for sale, and subsequently sold it, in two stages, to James Gordon, Baron Macpherson of Drumochter, who resided nearby at Kyllachy. In the first stage of the transaction, the Tomatin Trustees sold an area of ground extending to 3119 acres or thereby (which acreage was not guaranteed) forming the North End and Middle Part of Tomatin Moor to Lord Macpherson by Disposition dated 18, 19, 24 and 28 August and recorded 22 September, all 1977 (“the 1977 Disposition”) [Production 21]. The sale of the South End, extending to a further 1440 acres or thereby, had to be deferred for several months until it came back in hand, because under the current tenant it formed part of a Farm Amalgamation Scheme and as such was subject to ownership restrictions until 27 November 1979. The subjects of the 1977 Disposition were described by reference to a plan annexed and subscribed as relative thereto, on which they were shown delineated in red, although the plan was declared to be demonstrative only and not taxative, and the accuracy thereof was not guaranteed. The Tomatin Trustees excepted from all warrandice granted by them:

“the right of occupancy of the grazing tenants Mr & Mrs. Charles MacQueen and all existing peat cutting rights, servitudes and wayleave rights without prejudice nevertheless to the right of our said disponee and his foresaids to quarrel or impugn the same on any ground of law not inferring warrandice against us.”

We shall have much more to say about the sequence of events that led up to the granting of the 1977 Disposition in the section of this note sub-headed “The central mystery in this case” that follows hereon.

[28] By Disposition by Lord Macpherson and Others dated 26 March and recorded 8 April 1997 (“the 1997 Disposition”) [Production 30], the subjects (IN THE FIRST PLACE) disponed, being ALL and WHOLE the subjects known as the Dalmigarry [sic] and Tomatin Moors in the County of Inverness extending to 1826 hectares or thereby (4512 acres), which subjects included both that area of ground extending to 3119 acres or thereby forming the North End and Middle Part of Tomatin Moor as acquired by Lord Macpherson in 1977, and part and portion of the area of ground extending to 1471 acres forming the South End thereof subsequently purchased from the Tomatin Trustees in the Autumn of 1979 in the name of Catherine Bridget, Baroness Macpherson, were conveyed to a British Virgin Islands-registered company, the grandiloquently monikered Supreme Leader Limited. It was declared in the 1997 Disposition that the sundry subjects it carried “shall be known from and after the date thereunder as the Lands and Estate of Dalmigarry”.

[29] When Supreme Leader Limited put Dalmagarry Estate up for sale in 2011/2012, it was not only the spelling of its name that had changed. As a result of the acquisition of the neighbouring Lynemore moor to the north in 2008, the total area of the subjects now offered for sale extended to some 2700 hectares (6673 acres). In the sales particulars prepared by the selling agents, CKD Galbraith [Production 112], under the heading “Dalmagarry Grazings”, it was stated that:

“An arrangement has been in place for many years with a local farmer over part of the moor extending to approximately 1,665 acres (674 Ha). The estate enjoys a good relationship with the farmer who co-operates fully with the tick control programme.”

Before the wording of that paragraph was finalised, the selling agents ran it past the seller’s solicitor, Hugh Younger of Murray Beith Murray, Edinburgh for approval, as documented in the exchange of emails lodged as Production 113. Dalmagarry Estate, now consisting of both the subjects at Dalmagarry registered in the Land Register of Scotland under Title Number INV29435, and the adjacent subjects at Lynemore, Moy, Inverness-shire registered under Title Number INV29435, subsequently was purchased by Forsby Properties AB from Supreme Leader Limited for a total consideration of £3,550,000, with a date of entry of 30 March 2012.

The divided ownership issue

[30] It is convenient at this point in the narrative of the intertwined histories of Dalmagarry Farm and Dalmagarry Moor to address a legal issue that, before the start of the proof, going by the content of parties’ pleadings, seemed likely to loom large at the hearing, but in the event receded into insignificance as the case progressed. It arises out of the fact that ownership of the principal part of Dalmagarry Farm and of Dalmagarry Moor, over which the tenant of Dalmagarry Farm exercised grazing rights, diverged as long ago as June 1945. Parties, in their pleadings, seemed to be at odds as to whether the correct legal analysis of the consequences of that divergence was that when it occurred: (i) two separate tenancies came into being; or (ii) there continued in existence a unitary lease of subjects in divided ownership (and as such with joint landlords), which endured until the tenancy of Dalmagarry Farm itself was extinguished by operation of confusio when Dalmagarry Farm was purchased by the Respondent’s parents in 1972.

[31] The Respondent’s position was that in the aftermath of the sell-off of land by the Mackintosh Trustees in 1945, both new owners and the tenant in practice conducted themselves on the basis that there were now two separate tenancies, and as we understood his closing submissions, Senior Counsel for the Applicant came around to accepting that analysis following upon the lodging on behalf of the Respondent on 19 August 2019 of the Minute of Agreement of 1948, in terms of which the two brothers Charles Macqueen and John Thomas Macqueen were accepted by the Secretary of State as joint tenants of Dalmagarry Farm in room and place of their late father. The Applicant and its legal representatives had not, before that date, been aware of the existence of this deed, and having had the opportunity to consider it, were persuaded that it strengthened the argument that a separate tenancy had come into being in respect of the Dalmagarry Moor grazings earlier than they previously had acknowledged. At any rate, Senior Counsel for the Applicant having disavowed any intention of seeking to argue that through some failure of transmission, the Respondent had lost the benefit of whatever lease might historically have been constituted in one of his predecessor’s favour over some part of Dalmagarry Moor, parties were, as we understood it, agreed that the divided ownership issue need no longer detain the court, which could now focus exclusively on the issue of the extent and location of the subjects of lease.

The central mystery in this case

[32] The Respondent contends that he today has a secure 1991 Act tenancy over an area of Dalmagarry Moor extending to in excess of 1700 acres, as depicted on his IACS map, and that nothing has changed with regard to the extent of the subjects of lease since just after World War II so far as that tenancy is concerned. The principal difficulty that attaches to him maintaining this position is that it is not readily reconcilable with the evidence before the court that in the past, his immediate predecessor in the tenancy affirmed a very different position. It is one of the many curious aspects of this case that the acreages of some 400 acres or thereby, which failing 1092 acres, that feature in the Applicant’s craves for declarator, derive ultimately not from the contents of estate records maintained by previous owners of Dalmagarry Moor but instead from evidence of: (i) what the Respondent’s own mother and father represented the extent of the subjects of lease to be in their dealings with previous owners and their agents; and (ii) how they reflected the extent of the subjects of lease in their agricultural census returns and others. The Respondent dismisses all of this body of evidence as flowing from a “simple mistake” on his parents’ part.

[33] What emerges from the evidence we heard is that when the family of the late Mrs Bulloch, the beneficial owners of Dalmagarry Moor for the previous quarter of a century through the medium of a family trust (the Tomatin Trust), put it up for sale in 1977, they had to rely on the Respondent’s parents for information as to the extent of the subjects of lease. On 24 February 1977, their agent, Ken Hughes FRICS of Bingham Hughes MacPherson, Inverness (“BHM”) wrote [Production 74] to Charles MacQueen, “to confirm the acreage given to me by your wife yesterday evening, when I telephoned her, of 1,092 acres for the grazings which you rent from the Tomatin Estate Trust.” It was emphasised in the letter that ”It is important that I get the acreage agreed [our emphasis] with you so that it may be correctly stated in the sale particulars.” It asked him to “just drop me a line saying that this is the acreage which you give in your Agricultural Returns and that it is the area of ground which you rent from Tomatin Estate at an annual rental of £150”, and a stamped addressed envelope was enclosed to facilitate him doing so.

[34] It would appear that BHM proceeded to prepare the sales particulars without waiting for Charles MacQueen’s reply to that letter. A copy of the sales particulars for Tomatin Moor [Production 5] describe it as comprising 4,730 acres (1915 hectares), formed of three constituent grazings parts, namely:-

“The north end. 1092 acres. (Agreed with Tenant) Agricultural Tenancy. MacQueen, Dalmagarry Farm. Rental £150.00 per annum.

Middle. In hand. 2198 acres.

South end. 1440 acres. Let with Smithfield Farm at a rental of £120 per annum. Corrybrough Estate who rent Smithfield Farm have undertaken to relinquish the south end grazings on 17th November, 1979, and this land will then be in hand.”

Thus, it will be seen that the selling agents fed the acreage information provided to them over the telephone by Mrs Eva MacQueen on 23 February 1977 directly into the sales particulars, and indeed the headline total area of Tomatin (otherwise Dalmagarry) Moor stated in the sales particulars itself incorporated the 1092 acres figure for the north end supplied by her.

[35] We shall return later to the source of that 1092 acres figure. However, by handwritten letter to BHM dated 3 March 1977 [Production 7B], Mrs Eva MacQueen, in reply to BHM’s letter to her husband dated 24 February 1977, apologised for “giving you the wrong figures of acres regarding the grazings of the Tomatin Estate Trust. The correct figures are 400 Acres Four Hundred Acres.” On receipt of this letter, BHM copied it to Mrs Ann Glynne–Percy under cover of a letter dated 7 March 1977 [Production 7A]. BHM were corresponding with Mrs Glynne-Percy (née Bulloch) in her capacity as one of the Tomatin Trustees. The covering letter related that:

“As agreed, we have let the particulars go out with the original acreage unaltered, but I think that when the time comes for consideration of offers, we shall then need to inform the offerers that the tenant states that the acreage given in the particulars, is incorrect. It will then be up to the MacQueens to sort the thing out with the new owners.”

Both of these letters were copied to “Angus” for any comment he might have. This was a reference to Angus Mackenzie, CA, another one of the Tomatin Trustees, but also a trusted professional adviser to and family friend of the MacQueens. A correction to the sales particulars [Production 6] was issued, advising that since they had been produced and circulated, “Mr MacQueen, the Tenant of the [north end] grazings has informed us, that the area he rents extends to 400 acres, and not 1092 acres the area he originally stated.”

[36] On 16 May 1977, the firm of Dundas & Wilson, C.S., Edinburgh submitted an offer for Tomatin Moor on behalf of their client Lord Macpherson [Production 8]. The final sentence of Condition 7 of the offer was: “A formal letter from the tenant of Dalmagarry Farm will be delivered at settlement confirming the acreage of the subjects tenanted by him and the rent payable therefor.” On 19 May 1977, Munro & Noble, the sellers’ solicitors, had written to Mr Hughes of BHM [Production 12 C]. The writer of that letter commented that:

“I regard the matter of the MacQueens lease as a very serious one in view of what you said about the difference in value of the ground depending on whether or not he has a lease of 400 acres or 1092 acres. I don’t think the letter from Mrs. MacQueen will do particularly in the light of what you had to write on the 6th May to Mr. MacQueen. I spoke to Angus about this last night also and he will go to see MacQueen when he comes back and I think quite rightly he does not want to take any action at this stage while he is in London. I think this is the best policy and the one that must be pursued. What I hope is that Angus will be able to get Mr. MacQueen to sign a letter in the same terms as his wife’s letter to you confirming that the acreage involved is 400 acres.”

Later on in that letter, the writer expressed the view that:

“it is useful that you get a plan prepared and this will also give us time to try and sort out the MacQueen question before we actually give a formal qualified acceptance to Dundas & Wilson. I think that if we disclose the position to Dundas & Wilson at the moment (as the position presently stands) we could jeopardise the price from what you have told me.”

We would observe at this point that the letter from Mr Hughes to Charles MacQueen dated 6 May 1977 that was referred to in the Munro & Noble letter of 19 May 1977 was not before the court, and we heard no evidence that bore to cast light on what it concerned.

[37] Before a qualified acceptance was issued by Munro & Noble on behalf of the sellers, the MacQueens reportedly changed their position again. According to a letter from Munro & Noble to Mrs Glynne-Percy dated 9 June 1977 [Production 13], “I have now heard from Angus MacKenzie that the McQueens now say that they have tenancy of the 1092 acres.” On 15 June 1977, Munro & Noble issued a qualified acceptance to Dundas & Wilson [Production 16 C] under cover of a letter of even date which explained that “The MacQueens now state that their acreage of grazing is what they originally stated; they had apparently been making errors in their agricultural returns.” Condition H in the qualified acceptance proposed the deletion of the final sentence of Condition 7 of the offer, and the insertion in its place of the provision: “The situation is that the tenant now states that his lease extends to 1092 acres or thereby and not 400 acres.” This provoked the rejoinder from Dundas & Wilson in their further formal missive letter dated 20 June 1977 [Production 18B] that Condition H of the qualified acceptance was not acceptable and that Condition 7 of the offer was to remain in force.

[38] At the same time, it was agreed between the parties that the total area of the subjects of sale was 4590 acres, with the north end and middle together extending in all to 3119 acres (a reduction of 171 acres on the areas cited in the sales particulars) and the south end to 1471 acres (an increase of 31 acres), a recalculation of acreages having been carried out by BHM during the previous week. In their covering letter dated 20 June 1977 [Production 18A], Dundas & Wilson observed that:

“In view of the fact that the area being conveyed to Lord MacPherson is 140 acres less than the area which he was led to believe he was purchasing according to the sale particulars we have suggested that there should be a corresponding reduction in the price. However, as Lord MacPherson is a personal friend of the sellers he does not wish to raise the matter.”

However, it was emphasised that, in fairness to their client, “We do feel strongly that … the Missives here should be concluded without delay”, and it was made clear that the price was available for consignation on 1 July 1977.

[39] Following receipt of the Dundas & Wilson missive letter dated 20 June 1977, Munro & Noble wrote the next day to BHM [Production 18C] to say that “We will have to ask Angus MacKenzie to try to get a holograph letter from the MacQueens confirming their acreage of tenancy and rent. We think this shall be obtained this week and sent with the qualified acceptance.” What happened next can be pieced together from the contents of subsequent correspondence. Matters moved quickly. On [Monday] 27 June 1977, Munro & Noble wrote to Mrs Glynne-Percy to relate that:

“A. MacKenzie did an excellent job and came and saw me on Saturday night with a plan for the part of the moor grazed by the MacQueens, signed by the MacQueens and also a note by Lord MacPherson saying that he had approved it. I am hoping now that we will make rapid progress.” [Production 19].

Enclosed with that letter were copies of a formal missive letter and covering letter being sent that day by Munro & Noble to Dundas & Wilson. These are lodged respectively as Productions 20 E and 20 D. In the formal missive letter dated 27 June 1977, modification (b) provided that:

“There is enclosed a plan signed by Mr. & Mrs. MacQueen which indicates the area over which they have grazing rights and which states their rent. This plan shall be deemed to satisfy the last sentence of Condition 7 of your offer dated 16th May 1977.”

Modification (e) provided that all the acreages quoted were to be qualified by the words “or thereby” and were not guaranteed. The covering letter elaborated on the circumstances surrounding the former modification:

“We are enclosing a plan of the Moor showing outlined in blue the area grazed by the MacQueens at an annual rent of £150 and you will see that the plan has been signed by both Mr. & Mrs. MacQueen and adopted as holograph by them. Attached to the plan is a note from Lord MacPherson from which you will see that he has seen the plan and approves it. It was shown to him by one of the Tomatin Trustees on Saturday …

We trust that this will now allow the bargain to be completed as we are most anxious that the money does not lie on deposit receipt for any length of time and it is on your assurance that you will deal with this matter expeditiously that you are agreeing to the money being placed on deposit receipt and entry being taken at 1st July.”

The marked up plan

[40] The import of the sequence of events narrated above, then, as we see it, is that before settlement of the transaction by which Dalmagarry Moor was conveyed to Lord Macpherson, Mr Mackenzie, one of the Tomatin Trustees, on Saturday 25 June 1977 succeeded in obtaining from Charles MacQueen & Mrs Eva MacQueen a formal acknowledgement of or agreement as to the location and extent of the subjects of lease, by way of the adhibition of their signatures and the legend “adopted as holograph” to a plan upon which a blue line had been drawn depicting the boundaries of those subjects, and thereafter secured Lord Macpherson’s confirmation that the contents thereof were acceptable to him.

[41] It seems to us to be implicit in this chapter of evidence that when Mr Mackenzie attended at Dalmagarry Farm on 25 June 1977, the plan he brought with him was not marked up in advance to show the area to which the MacQueens were laying claim, because Mr Mackenzie went there in a state of uncertainty as to what they were going to tell him. We infer that the boundary line must have been marked up on the plan in the course of his meeting with Charles MacQueen and Mrs Eva MacQueen to reflect what they told him. Lord Macpherson lived locally and was familiar with the lie of the land he was purchasing. He would readily have been in a position to envision how the boundary line marked up on the plan would translate onto the ground. No doubt he would be in a position to “guesstimate” what the area enclosed within the blue line would equate to in terms of acreage, but the essential point about the process adumbrated in the correspondence that culminated in Mr Mackenzie attending at the home of the sellers’ solicitor that Saturday evening to report the success of his initiative must be that what Charles MacQueen and Mrs Eva MacQueen and Lord Macpherson both signified their assent to that day was likely not a precisely quantified acreage, but rather a boundary line marked up on a plan.

The loss of the marked up plan

[42] No doubt if one or other of the parties to this application had come into possession of or retained a copy of the marked up plan as signed by Charles MacQueen and Mrs Eva MacQueen and approved by Lord Macpherson on 25 June 1977, and perceived it today to be in its or his interest to produce it, this litigation would not have been necessary, because it would have provided a more or less definitive answer to the question of the extent of the subjects of lease in or about 1977 when Lord Macpherson purchased Dalmagarry Moor from the Tomatin Trustees, and neither party suggests that the landlords and tenant(s) agreed to a subsequent variation. The problem is that neither party now professes (or admits) to holding a copy of the marked up plan that Mr Mackenzie made such effort to procure in the late spring and early summer of 1977, and upon the basis of the contents of which settlement of the sale to Lord Macpherson was enabled to proceed.

[43] In a letter to Colin Glynne-Percy, the son of Mrs Ann Glynne Percy, dated 21 December 1989, C[olin] D.R. Whittle of R. & R Urquhart, Solicitors, Forres, writing on behalf of his clients, Lord and Lady Macpherson, [Production 23], noted that:

“At the time your family sold the land to Lady Macpherson [sic] it was subject to grazing rights in favour of the McQueens extending over an area acknowledged by the McQueens of some 400 acres.”

He continued that what he termed a “degree of contention” had arisen, and that “on looking at the area which the McQueens claim they have right to, the area extends in fact to some 2,500 acres. Clearly there is a material discrepancy.” Reference was made to Angus Mackenzie having discussed matters with Mr Glynne-Percy’s mother, from which Mr Whittle was given to understand that:

“an old estate plan shows that the Dalmagarry and Invereen hill grazings extended to 2993 acres of which your mother thought that the substantial part was with Dalmagarry.”

Mr Whittle’s letter concluded with a request that Mr Glynne-Percy might research the matter further, with a view to the two having a word in the new year: it was emphasised that Lord and Lady Macpherson did not in any way wish to have issue with the Glynne-Percys, but they “would certainly like to identify the problem and if necessary restrict the McQueens to ‘an appropriate area’ ”.

[44] The first question begged by Mr Whittle’s letter is why it contains no explicit reference to the marked up plan signed by Charles MacQueen and Mrs Eva MacQueen, and approved by his own client, Lord Macpherson himself, on 25 June 1977: it is notable that while Mr Whittle refers to the MacQueens having “acknowledged” a grazing area extending over 400 acres, his letter does not elaborate on what form that acknowledgment took. It might have been expected that upon settlement of his purchase of that part of Dalmagarry Moor over which the MacQueens’ grazing rights extended, it would be Lord Macpherson, as the purchaser, who would have kept the marked up plan evidencing the accord as to the subjects of lease that Mr Mackenzie had brokered, but there is no suggestion in the letter of this having been the case.

[45] The second question begged by Mr Whittle’s letter is what lies behind his mention of a “degree of contention” having arisen in respect of the matter of the area of Dalmagarry Moor over which the MacQueen family’s grazing rights extended. The most obvious interpretation of that paragraph of Mr Whittle’s letter is that he had been made aware of the existence of a brewing dispute between his clients and the MacQueen family on that score, in connection with which he was enlisting the support of members of the family that had sold that part of Dalmagarry Moor to Lord Macpherson some twelve years previously. The material discrepancy to which Mr Whittle refers lies between the area of 400 acres he had been given to understand the MacQueens acknowledged at the time of that sale, and an area extending to 2500 acres that, the implication must be, a member of the MacQueen family had more recently asserted a claim to in communications with either Lord and Lady Macpherson or one of their employees or agents. The words “on looking at the area which the McQueens claim they have the right to, the area extends in fact to some 2,500 acres” might be interpreted as suggesting that Mr Whittle (a qualified chartered surveyor as well as a solicitor) had, before writing his letter, carried out his own rudimentary measurement of the area now being claimed, the implication being that the tract of land under discussion may previously have been described to him or pointed out on a map, rather than a particular acreage having been stated to him.

[46] Frustratingly, no evidence was led as to what response this letter elicited, as neither Mr Glynne-Percy nor Mr Whittle, the now retired former senior partner of R. & R. Urquhart, featured on the Applicant’s list of witnesses. When the contents of Mr Whittle’s letter were put to the Respondent, he was adamant that he had no idea as to what the reference to “a degree of contention” was alluding. We found his answers in relation thereto somewhat surprising, in that it can hardly be supposed that Lord Macpherson would have broached the subject with his solicitor, and asked him to write to Mr Glynne-Percy about it, without some external prompt, which could only be that the MacQueens recently had re-opened an issue that, since the sale of Dalmagarry Moor to Lord and Lady Macpherson in 1977, had been regarded by the latter as settled. Our doubts as to the veracity of the Respondent’s insistence that he had no idea what had provoked the writing of this letter by Mr Whittle were exacerbated when his cousin Iain MacQueen confirmed that it was known within the wider MacQueen family at or about this time that the extent of the subjects of lease on Dalmagarry Moor was again in issue. It emerged during the course of the testimony of the Respondent’s wife, Mrs Joan MacQueen, that at or about this time, Mr Whittle himself had visited the MacQueens at Dalmagarry Farm. She told us she was not present in the room and thus was not in a position to say what was discussed between Mr Whittle and the Respondent, but it is notable that the Respondent himself failed to mention, when questioned about the contents of Mr Whittle’s letter to Mr Glynne-Percy dated 21 December 1989, that he himself had dealings with Mr Whittle around this period.

The origins of the 400 acres and 1092 acres figures

[47] As has been narrated, the contents of the 1977 conveyancing correspondence disclose that it was on 23 February 1977, in the course of a conversation over the telephone with BHM’s Ken Hughes, that the Respondent’s mother, Mrs Eva MacQueen, in response to his inquiry, advised that the grazings the MacQueens rented from the Tomatin Trust extended over 1092 acres. When Mr Hughes wrote to her husband the next day seeking confirmation of that figure, he equiparated the acreage given by the MacQueens in their agricultural returns with the area they rented from Tomatin Estate, because as Mr Hughes, a chartered surveyor dealing with rural property, would be well aware, the agricultural census returns that farmers are required by law to complete and return for government statistics purposes distinguish between rented and owner-occupied land. In invoking the contents of their agricultural returns, we think that Mr Hughes was pointing the MacQueens in the direction of a likely and readily available source of the information he was needing from them as a matter of some urgency.

[48] The Respondent’s sister Lilian was getting married on Friday 25 February 1977, a fact confirmed by the entry for that date in Mrs Eva MacQueen’s handwritten diary for that year, an extract from which was lodged on behalf of the Respondent as Production 43. In evidence, the Respondent attributed what he characterised as his mother’s “mistake” in providing what he contends was the wrong acreage to Mr Hughes to her being so busy with wedding preparations. We have no difficulty in accepting that the telephone call from Mr Hughes could not have come at a more inconvenient time for Mrs Eva MacQueen and we readily acknowledge that she may have been flustered when she fielded his call. The problem with that argument, however, is that when the MacQueens had the opportunity, in the aftermath of the wedding, to reconsider their position in response to Mr Hughes’s follow up letter to Charles MacQueen dated 24 February 1977, the acreage of 400 acres they provided, in both figures and words, in Mrs Eva MacQueen’s letter to BHM dated 3 March 1977, was even more erroneous, from the Respondent’s perspective, than the acreage she had provided in her telephone conversation with Mr Hughes a couple of nights before the wedding. Some three months later, there was a suggestion (see the letter from Munro & Noble to Mrs Glynne-Percy dated 9 June 1977) that the MacQueens had changed their position once again, reverting to the acreage of 1092 acres first communicated over the telephone by Mrs Eva MacQueen to Mr Hughes, before they settled, with the further intervention of Mr Mackenzie, on an area marked up on a plan that might be 400 acres or 1092 acres or some other acreage entirely.

[49] When the MacQueens, in response to the selling agents’ requests for that information, successively put forward the figures of 1092 acres, 400 acres and 1092 acres as the area of the subjects of lease on Dalmagarry Moor, those figures were not simply plucked from thin air. At the procedural hearing held in Edinburgh on 29 August 2019, the Applicant obtained, in the face of the Respondent’s opposition, an order for recovery of documents in the terms:

“All agricultural census returns submitted by or on behalf of Charles Alexander MacQueen and Euphemia Mary Margaret MacQueen as partners and trustees for the firm of CA and EM MacQueen between the years 1971 and 1976 which show or tend to show the extent of ground occupied by the said firm at Tomatin Moor in each or any of those years and which are held by or on behalf of the Respondent, and failing principals of which, copies or duplicates thereof.”

On the first morning of the hearing (3 September 2019), the Applicant lodged at the bar occupier’s copies of the agricultural and horticultural census returns as at 1 June 1976 and 1 December 1976 submitted by the MacQueens in respect of Dalmagarry [and Tullochclury] Farm that had been yielded up by the Respondent in implement of the court’s order. If indeed it be the case that Mrs Eva MacQueen, prompted by Mr Hughes’s linkage of the area of the subjects of lease to the contents of the agricultural census returns submitted in respect of Dalmagarry Farm, resorted to that source with a view to providing the information he was seeking, it is likely that it was these copies she would have consulted.

The agricultural census returns

[50] The agricultural census returns inquire as to, inter alia, how much of the land on the farm is being used for growing particular crops, the numbers of different types of farm animals and poultry present, and the numbers of people working, on the farm, as at those dates. The first three boxes on the form requiring completion ask for details of the areas of land in hectares (to the nearest 0.1):

Rented by the occupier from an outside concern

Rented from a near relative or from a concern in which [the] occupier has an interest

Owned by the occupier”.

In the occupier’s copy retained by the MacQueen family as a record of the figures supplied by them in the agricultural census return for Dalmagarry Farm as at 1 June 1976, in the first of those boxes, it can be seen that whoever completed the form inserted initially the figure 401, before scoring it out and superscribing 162.3 in its place. There are 2.471 acres to a hectare, and 162.3 x 2.471 = 401: it is thus clear that the correction made was to convert the figure given as the area of land rented by the occupier from an outside concern from acres into hectares to comply with the instruction on the form. The second box on the form was left blank. In the third box, the area in hectares owned by the occupier was stated to be 278.6: 278.6 hectares equates to 688.42 acres. The same 162.3 and 278.6 hectares figures appear in the occupier’s copy of the agricultural census return for Dalmagarry Farm as at 1 December 1976. The total area of the land both rented and owned by the occupier of Dalmagarry Farm as so stated accordingly is 1089.42 acres. The figure of 278.6 hectares stated to be the area of land owned by the occupier corresponds closely with the 688 acres area of Dalmagarry Farm as it was purchased by Charles MacQueen and Mrs Eva MacQueen as partners and trustees for the firm of CA and EM MacQueen in 1972. The figure of 162.3 hectares stated to be the area of land rented by the occupier from an outside concern corresponds closely with the 400 acres figure cited by Mrs Eva MacQueen in her letter to BHM dated 3 March 1977 to correct the information she had given Mr Hughes in their telephone conversation of 23 February 1977 that the subjects of lease on Dalmagarry Moor extended to 1092 acres. There is also a close correspondence between that 1092 acres figure and the total area of the land both rented and owned by the occupier of Dalmagarry Farm as stated in the occupier’s copies of the agricultural census returns for Dalmagarry Farm as at both 1 June 1976 and 1 December 1976.

The Small Farm (Business Management)(Scotland) Scheme 1965 Inspector’s Report

[51] At the hearing, when the above correspondences were queried by the members of the court, it was not suggested on behalf of either side that they were the result of mere coincidence. That they were not the result of mere coincidence is further confirmed by the contents of another adminicle of documentary evidence that came to light at a very late stage in the proceedings in the form of a copy of the Inspector’s Report prepared in respect of Dalmagarry Farm on the application of the MacQueens under the Small Farmers [sic](Business Management)(Scotland) Scheme 1965, lodged by the Respondent on 30 August 2019 [Production 138]. We strongly suspect that had this document been made available to the Applicant further in advance of the hearing, the minute of amendment for the Applicant introducing the alternative crave for declarator that the Applicant and the Respondent were parties instead to a lease extending over 1092 acres of Dalmagarry Moor, which the court allowed in its order dated 29 August 2019, might never have seen the light of day. With more time to consider its significance, it seems to us likely that the Applicant would have discounted the idea that there was any credible evidence whatsoever to support the grant of a declarator in those terms. The import as we see it of the contents of the Inspector’s Report is that they provide both: (i) a source for the 1092 acres figure later put forward by the MacQueens that undermines the case that it ever represented the area of the subjects of lease on Dalmagarry Moor; and (ii) a measure of corroboration for the 400 acres figure that features in the Applicant’s original crave.

[52] The Small Farm (Business Management)(Scotland) Scheme 1965 (“the 1965 Scheme”) came into operation on 1 September 1965. It had as one of its main objectives the improvement of the standards of business management in small farm businesses, through the keeping of financial and other farm records and the use of those records as a basis for management decisions. Compliance with its terms, which required participating farmers to keep records for a period of three years, submit plans for each of those years and achieve the objectives set in those plans, could secure for participating farmers grants up to a maximum of £1000 over the initial three years duration of the 1965 Scheme. To be eligible, a farm had to be between 20 and 125 acres of crops and grass (i.e. excluding rough grazing) and in terms of labour requirements, be a unit of 250 - 600 standard man-days (i.e. providing employment for one to two men).

[53] The Inspector’s Report discloses that the firm of “Messrs C.A. & E. M. Macqueen” applied to be admitted into the 1965 Scheme and that its proposals were recommended by the Inspector for approval following an inspection carried out on 9 March 1966. Part I of the Inspector’s Report consists of a “Description of Farm Business and its Resources”. Paragraph (1)(a) in Part I is headed “Location, extent and quality of land”. Under that heading, the Inspector recorded:

“Dalmagarry is situated about one mile south of Loch Moy adjacent to the main A9 road from Inverness to Perth.

It extends to 92 acres of arable land plus 1,000 acres of grass and heather rough grazings. The arable land lies between 900 and 1,000 feet above sea level. The land is fairly flat and exposed and the soil is variable but with good loam – mossy in places.”

Paragraph (1)(b) inquires as to whether there have been any additions or losses since submission of the [applicants’] proposals, and paragraph (1)(c) as to whether there have been “Acreage variations since 1st January, 1959”: both of those inquiries elicit the answer “None.”

The Moorland Management Plan

[54] The MacQueens in 2000 were accepted into an agri-environmental scheme under the Countryside Premium Scheme (“the CPS”). This entailed them entering into a ten year Moorland Management Plan (“the MMP”) [Production 100] in terms of which they undertook to reduce the number of sheep they grazed on Dalmagarry Moor for the duration of the scheme by some 150 ewes and to carry out a programme of muirburn over an area of 312 hectares, with the object of improving the quality and extent of the heather and other vegetation of conservation interest. The MMP covered not only Dalmagarry Moor but also the hill grazings forming part of Dalmagarry Farm lying to the east of the A9 (“the Home Hill”). It records Dalmagarry Farm as having in 1999 a sheep flock composed of some 919 ewes, 229 gimmers and 200 hoggs (total 1348), illustrating the very substantial increase in the number of sheep carried by Dalmagarry Farm that had occurred over the previous twenty years. This is a point upon which we shall elaborate later in this note. Of course, not all of those sheep would be on Dalmagarry Moor; the MMP refers to a flock of Blackface sheep being kept on Dalmagarry Moor, with Cheviots on the Home Hill. The MMP contemplated a reduction in the size of the total flock (ewes, gimmers and hoggs) to 935, that number representing the total number of animals on which subsidy could be claimed, with the number of ewes and gimmers that could be retained on the moorland not to exceed 700. The contents of the MMP are instructive for what they disclose about the pattern of usage of Dalmagarry Moor before entry into the CPS, and about what the measures outlined therein were intended to achieve. The MMP identified an uneven grazing pattern, with the eastern-most edge adjacent to the three in-bye fields of Dalmagarry Farm situated west of the railway line, where 400 Blackface sheep were fed blocks over the winter, being over-grazed, but with under-grazed areas further out onto the moor, where the heather had become old and leggy and bog myrtle, unpalatable to sheep, predominated in the wetter areas. It was noted that it was only in the summer months that the sheep forayed more widely over the hills, the flock in summer consisting of the 400 Blackface ewes and their lambs, and 200 Blackface hoggs returned from wintering elsewhere. As the sheep were not hefted, they did not frequent the under-grazed and overgrown areas. A further condition of the MMP was that during the winter, feed blocks were to be moved further out from the lower slopes in an attempt to redistribute winter grazing: Production 101 – a foddering site plan - refers.

The management agreements

[55] The income stream generated for the MacQueens by participation in the CPS latterly was augmented by payments received by the firm from the landlords under a series of what were termed “management agreements”. These were instigated during the period when Supreme Leader Limited, the corporate vehicle of a Mr Philip Tose, owned Dalmagarry Moor, and they continued under the Applicant until the failure of the parties to agree terms (including the quantum of the payment) for the years from 2014/15 onwards precipitated the present dispute, with the Applicant’s intention to instigate legal proceedings being intimated in an email from Mr Seaman to the Respondent dated 9 June 2017 [Production 97]. There was some confusion in Mr Lundberg’s evidence as to whether the payments the Applicant made to the firm were for keeping sheep on Dalmagarry Moor or for taking them off it. The invoices issued in connection therewith indicate that what was being paid for was the cost to the firm of away-wintering Dalmagarry Farm sheep, thereby securing their removal from Dalmagarry Moor during the period from November to March each year, together with a contribution towards any additional costs incurred by it by way of tick treatments, over and above what would be administered to the sheep as a matter of routine husbandry, in furtherance of their role as “tick mops” for the benefit of the grouse. It is surprising to note that the sums claimed by the firm latterly in respect of the costs of over-wintering seem to have entailed the firm being paid also for overwintering some of the less hardy cross-bred sheep that would not ordinarily have spent their winters on Dalmagarry Moor. We think Mr Lundberg can be forgiven for his apparent confusion as to whether he was paying for sheep to be kept on or taken off Dalmagarry Moor for different periods of the year, given that the arrangement between the parties appears never to have been committed to writing. We think the reality of the situation was that these were opposite sides of the same coin, and that what Mr Lundberg was paying for was both: he wanted sheep, suitably treated for tick, on the moor in the period from the beginning of April until the end of October, to act as tick mops, but for them to be off the moor during the winter months. It was in the Applicant’s interest for the sheep to spread across Dalmagarry Moor, rather than cluster around the part proximal to the eastern boundary, particularly after the Applicant discontinued the practice followed by Mr Tose of employing a shepherd to look after a flock of estate-owned sheep on Dalmagarry Moor and sought to establish a contract shepherding arrangement in its place [Production 114].

The “elephant in the room”

[56] During the course of the hearing, the phrase “elephant in the room” was adopted by parties’ procurators to refer to the somewhat bizarre situation which prevailed during the period of ownership of Dalmagarry Moor by Supreme Leader Limited and then the Applicant, whereby at the same time that the landlords were paying the firm substantial sums annually in terms of the management agreements, they were declining to cash the cheques for £75 tendered half-yearly by the Respondent by way of rent for the Dalmagarry Moor grazings. Before the death of the Respondent’s father, Charles MacQueen, rent was tendered to and accepted on behalf of Kyllachy Estate (i.e. Lord and Lady Macpherson) in respect of what variously was identified in receipts therefor issued by Angus Mackenzie & Company as “Dalmagarry Hill”, “Hill, Dalmagarry”, “Hill ground”, and “Hill at Dalmagarry” [Productions 87 – 93]. Following upon the death of Charles MacQueen on 3 June 1995, the tenant’s interest in “the lease of the Dalmagarry Hill grazings (otherwise Tomatin Moor)” was transferred to the Respondent by his late father’s executors and intimated to Lord Macpherson’s agents by letter from their solicitors, South Forrest, Inverness, dated 3 June 1996. It was explained in that letter that Dalmagarry Farm “is a partnership consisting of [the Respondent] and his mother.” A cheque tendered by the Respondent in respect of the half-yearly instalment due at Martinmas 1995 was not cashed, and following three chasing letters from the Respondent to Lord & Lady Macpherson’s new agents, R & R Urquhart [Productions 77, 78 and 79], the Respondent received from the latter firm a letter dated 16 April 1996 stating that:

“Whilst you have tendered a cheque for the rent, we have no instructions to encash that.

We have no instructions to the effect that Lord Macpherson recognises your interest.

We understand that it was accepted that your late Father had certain agricultural tenancy rights.”

The Respondent, writing in his capacity as “Partner, Dalmagarry Farm”, tendered three further cheques, sent to R & R Urquhart by recorded delivery post [Productions 81, 83 and 84], in respect of the instalments of rent due as at Whitsunday and Martinmas 1996 and Whitsunday 1997, which were acknowledged on behalf of Lord Macpherson, “entirely without prejudice” [Production 82] but not cashed, establishing a pattern that continued for the better part of the next two decades under Lord Macpherson’s successors as owners of Dalmagarry Moor, with one exception, a cheque cashed in error during the period of Supreme Leader Limited’s ownership but promptly reimbursed when the mistake came to light. The “elephant in the room” during this extended period was that whilst both parties were well aware that the tender by the Respondent of his six monthly cheques was an assertion by him of the existence of a tenancy in his favour, and the successive landlords’ declinature of it, equally clearly, was a refutal of it, neither party pressed the issue to the point of confrontation, and instead they continued to be parties to annual management agreements, the underlying premise of which was that Dalmagarry Farm sheep would be present on Dalmagarry Moor on some basis or other for at least part of the year.

[57] The Respondent lodged, and Senior Counsel for the Applicant took Mr Seaman through, a chain of (principally email) correspondence that passed between the Respondent and Mr Seaman between June 2015 and December 2016 [Productions 94-96; and see also the Applicant’s Production 123] charting the attempts of the Applicant to agree the terms of a new, and more prescriptive, management agreement in respect of Dalmagarry Moor in the face of the Respondent’s demands for the doubling, from the previous level of £10,000 + VAT [Production 117; invoice dated 15 September 2014], to £20,000 + VAT [Production 118; invoice dated 12 May 2015], of the sum payable to the firm under the management agreement. The Applicant’s desire to formalise the terms of the management agreement, and to impose a cap on the amount payable thereunder, followed on a review of its operation carried out by an agricultural consultant, Archie MacLellan, formerly an employee of SAC; his report is lodged as Production 99. The perceived significance of this chain of email correspondence for the Applicant is that it was only towards the end of that period, in November 2016, that the Respondent first, in terms, asserted to Mr Seaman his claim to have a “secure” tenancy over part of Dalmagarry Moor.

[58] Given that, in these proceedings, the Applicant disputes only the extent of the subjects of lease held by the Respondent under a 1991 Act tenancy, making no attempt to deny that he has a secure tenancy at all, it was not immediately obvious to us where that point took the Applicant, but by the stage of closing submissions, it had become clear that the Applicant was relying on this failure on the part of the Respondent to articulate such a claim earlier as a basis for attacking his credibility. It was submitted on its behalf that the Respondent was “cagey” in the manner in which he gave his evidence, and more generally that this word aptly described his conduct of the entire litigation. There is force in that submission, as we shall go on to discuss, but the same point might be made against the Applicant and its predecessors in title as owners of Dalmagarry Moor: it is quite clear that for nearly a quarter of a century, they have been well aware of the existence of, but preferred to avoid confronting head on, the issue of the nature and extent of the Respondent’s rights in respect of Dalmagarry Moor. The first time that the presence of the “elephant in the room” was expressly acknowledged by the parties was in the dealings between Mr Seaman and the Respondent in November 2016 referred to above.

Admissibility of Productions 120, 121 & 122

[59] This is a convenient time in the narrative to address one of the legal issues previously alluded to in this note, to which we indicated we would require to return. It concerns the three productions lodged on behalf of the Applicant, in the form of letters or emails from or statements by persons connected to the Applicant’s predecessors in title, recounting their historic understanding of the nature and extent of the MacQueen family’s rights in respect of Dalmagarry Moor, that were excepted from the scope of parties’ Joint Minute. More specifically, these were (i) Letter of Comfort (as it was styled in the Applicant’s own covering Inventory of Productions), addressed “To Whom It May concern” by Philip Leigh Tose dated 19 January 2012 [Production 120]; (ii) undated Statement by Catherine, Lady Macpherson of Drumochter (stamped to the reverse as “RECEIVED 04 APR 2017”) [Production 121]; and (iii) email from [Mrs] Ann Glynne-Percy to Mr Lundberg dated 17 January 2018. Mr Lundberg was able to speak to receipt of these various communications from their respective authors, but they were not called to give evidence, and accordingly the Respondent was denied the opportunity to test their credibility and reliability by cross-examination. We do not understand the Respondent to challenge the authenticity of any of these three communications, and so we proceed upon the basis that they are what they purport to be.

[60] Although Junior Counsel for the Respondent “put down a marker” during the evidential part of the hearing by objecting thereto, by the stage of closing submissions, the court having meantime allowed the evidence under reservation as to all issues of competency and relevancy, the Respondent’s position, under reference to Gill, Agricultural Tenancies, op. cit., at paragraphs 85-27 – 85-33, had evolved into one that this court “probably had a discretion as to whether or not it should admit such evidence”. The Applicant’s position, on the other hand, was that we had no discretion not to admit these three statements “made by a person other than in the course of the proof”: see section 2(1)(b) of the Civil Evidence (Scotland) Act 1988; McVinnie v McVinnie 1995 SLT (Sh. Ct.) 41.

[61] As we interpreted what he had to say on this point, Junior Counsel for the Respondent’s submission ultimately was directed less at persuading us to exercise any discretion we might have to exclude this evidence completely, and more to emphasising the degree of caution with which we should approach the contents of the various forms of statement, given that they concern critical matters in dispute and the makers of the statements have not been subjected to the scrutiny that cross-examination in court would provide: cf. Ebrahem v Ebrahem 1989 SLT 808.

[62] In the event, we need not express a concluded view on the submission made on behalf of the Applicant that we have no discretion not to admit the three statements into the evidence, because in practice nothing turns on that issue in the particular circumstances of this case. Accepting for the purposes of argument that that we do possess a discretion whether or not to admit such statements, we consider that we should exercise that discretion in favour of doing so. A significant element in that exercise of discretion is our assessment of the contents of the three statements. Far from being wholly self-serving, we consider that, on a proper analysis, they are, in a number of respects, less than helpful to the Applicant, which may explain why their authors were not led in evidence on its behalf. We accordingly are not persuaded that the Respondent would suffer any prejudice as a result of the three statements being admitted into the evidence.

Mrs Glynne-Percy’s email

[63] Taking the three documents in the chronological order of their author’s period of ownership of Dalmagarry Moor, the document that covers the earliest period is that obtained from Mrs Glynne-Percy. In her email to Mr Lundberg, she relates that from her recollection,

“there was originally a seasonal grazing arrangement on the Dalmagarry end of our hill which was shared between Macqueen and Dunbar of Invereen. I am not sure if each had separate areas or whether they shared the same ground with their flocks. However the flocks were ‘hefted’ and so generally kept to the same area – there were no fences, the sheep would normally instinctively keep to their historic grazing areas. (These areas tended to be the lower ground rather than the high tops.)

No rent was paid by either farmer but help was supposed to be given with ‘muirburn’, (although after some unsuccessful incidents this was not pursued!). I cannot recall when Dunbar died but he had no successors and his farm was sold.”

The contents of Mrs Glynne-Percy’s email are largely unexceptionable, and are consistent with the broad thrust of the other evidence before the court. The two aspects of her statement that do not accord with the positions adopted by either party to this application are her assertions that (i) “no rent was paid by either farmer”; and (ii) the original grazing arrangement was “seasonal”.

[64] It is quite clear from contemporaneous documentary evidence lodged in process that, contrary to what is stated by Mrs Glynne-Percy in her email, during the period when Dalmagarry Moor was part of the property of the Tomatin Trust of which she was a trustee, rent was indeed paid by the MacQueens for the Dalmagarry Moor grazings. The Tomatin Trustees, by letter from their then solicitors, Stewart, Rule & Co., Fort William, dated 13 May 1960 [Production 36], “demanded arbitration as to the rent to be paid for the above holding from and after the term of Whitsunday 1961”, the above holding being, according to the letter heading, “Holding of Grazings at Dalmagarry, Tomatin”. The following spring, Stewart, Rule & Co., in a letter addressed to Charles MacQueen dated 23 March 1961 [Production 37], proposed that “[i]n view of the extent of these grazings, and the use which you make of them”, a rent of £75 as from Whitsunday 1961 “would not be an unreasonable amount to ask you to pay”. A subsequent exchange of letters, dated 10 and 21 April 1961 between the same parties [Productions 62 and 63] records that they succeeded in agreeing a new rent, which saw the “the present grazing rent” of £10 per annum increased to £40 per annum with effect from 15 May 1961. Over a decade later, on 23 October 1973, BHM wrote to Charles MacQueen broaching, on behalf of the Tomatin Trustees, another adjustment in the level of the rent payable in respect of the grazings “so that it bears some relationship to present day values.” It was suggested that ”the correct rent for the grazings you occupy should be £150 per annum and that if offered on the open market a figure in excess of this sum would probably be readily obtainable.” Following a meeting attended by Charles MacQueen in BHM’s Inverness office, a new rent in that sum as from Martinmas 1973 was agreed, which meant that “the first half-year’s rent at the new rate will be payable at Whitsunday 1974. Other arrangements in regard to the grazings will remain unchanged”: see BHM’s letter to Charles MacQueen dated 7 November 1973 [Production 39]. Production 106 is a receipted rent notice for the half-year to Martinmas 1976 issued by Angus Mackenzie & Company, Chartered Accountants, Inverness, to Charles MacQueen.

[65] Mrs Glynne-Percy’s characterisation of the grazing arrangement as originally having been “seasonal” may well, in our assessment, be soundly based in fact, but the Applicant having conceded that the Respondent now has a secure 1991 Act tenancy over at least a part of Dalmagarry Moor, that affords the Applicant no assistance. It is not for us to second guess the Applicant’s legal advisers as to whether that concession was correctly made.

Lady Macpherson’s statement

[66] The statement obtained by the Applicant from Lady Macpherson is very limited in its scope. In it, Lady Macpherson acknowledges that prior to the sale of Dalmigarry (as the Macphersons referred to it) to Supreme Leader Limited, her now late husband “took the lead in matters relating to the management of the Estate and legal matters generally”. The substance of what she says in her statement is confined to the last sentence, which is in the terms:

“… in my understanding, the occupation of what is now Dalmigarry by a Mr McQueen for sheep grazing, was not as a tenant, but was rather an arrangement related to the management of the grouse moor, where sheep flocks are used to help manage the burden of parasitic ticks that would otherwise prey on the grouse.”

That description of the situation which prevailed when Lord and Lady Macpherson were the proprietors of Dalmagarry Moor is undermined by the undisputed evidence before the court that during that period, agents acting on their behalf regularly issued rent notices and accepted payments of £75 tendered half-yearly by Charles MacQueen by way of rent for “Dalmagarry”, “Dalmagarry Hill”, “Hill ground”, or other variants thereof. In a letter addressed to “E [sic] McQueen Esq.” dated 20 March 1991 [Production 75], Colin Whittle of R & R Urquhart, Solicitors, Forres, having referred to “previous meetings and intimation that Lord Macpherson was contemplating reviewing your rent”, was in a position to confirm that “In light … of the financial circumstances affecting upland farms at the moment Lord Macpherson has instructed us to waive a review of your rent meantime.”

[67] Against that body of evidence, it would be untenable for the Applicant to maintain that during the period when it was part of the Kyllachy Estate of Lord and Lady Macpherson, a lease was not the ultimate warrant for the occupation by Charles MacQueen of part of Dalmagarry Moor, and the Applicant does not, in this process, seek to argue that the presence of the MacQueen sheep on Dalmagarry Moor after the Macpherson era was attributable not to a lease in the Respondent’s favour (the existence of such, in the form of a 1991 Act tenancy, the Applicant has conceded) but rather to the (non-lease) management agreements that have been entered into by successive proprietors of Dalmagarry Moor with the Respondent.

Mr Tose’s Letter of Comfort

[68] Albeit that the statement obtained by the Applicant from Mr Tose, the principal of Supreme Leader Limited, is identified in the Applicant’s covering second Inventory of Productions [itself Production 110] as “Letter of Comfort by Philip Tose dated 19 January 2012”, the expression “Letter of Comfort” does not appear on the face of the statement itself. The date of entry under the Disposition in favour of Forsby Properties AB was 30 March 2012 with entry the following day and so it may be inferred that the Letter of Comfort was exhibited to Mr Lundberg in the course of negotiation of missives. It is explained in the first paragraph of the Letter of Comfort that Mr Tose is writing in his capacity as the sporting tenant of Dalmagarry Estate in terms of an unwritten lease between him and Dalmigarry Estates Company Limited (“DECL”), DECL being the tenant of Dalmigarry Estate under an interposed lease granted in its favour by Supreme Leader Limited, but we do not understand anything to turn on this point for the purposes of this application.

[69] The Letter of Comfort conveys to us the impression of having been very carefully crafted: and as such, the comfort it provides is, in our opinion, distinctly cold for the Applicant. Its second paragraph commences with the statement that for as long as Mr Tose has been the sporting tenant of Dalmagarry Estate, the Respondent:

“has grazed his sheep upon that part of the Estate shown hatched black and marked ‘grazing’ on plan 1 annexed and signed as relative to the [1997] Disposition [in favour of Supreme Leader Limited] (‘the Grazing Area’)”.

It goes on to explain that members of the Respondent’s family “have assisted with the operations he carries out upon the Grazing Area”, and that, in each calendar year, subject to one exception, the Respondent has “presented DECL with two cheques each in the sum of £75 for grazing upon the Grazing Area”, which cheques DECL “have always declined to encash”, the only exception being in 2010 when a cheque was cashed “in error” and subsequently repaid by DECL to the Respondent by BACS transfer. In the midst of this paragraph, immediately before the part addressing the tender by the Respondent of cheques to DECL, there is the sentence “The right to graze is granted by DECL in terms of its Estate lease.”

[70] The third paragraph of the Letter of Comfort consists of a single sentence, that from 27 March 1997 (i.e. the date of entry under the 1997 Disposition) to date (i.e. 19 January 2012) “I confirm that [the Respondent] has never claimed that he has any form of agricultural tenancy over the Grazing Area.”

[71] The fourth paragraph relates Mr Tose’s understanding of the historic position, which is that “the arrangement” [sic] began “as an informal grazing lease” between the Respondent and Lord Macpherson and family. To the best of his knowledge and belief, the Respondent “never claimed to have established an agricultural tenancy over the Grazing Area with a previous owner of the Estate.”

[72] The fifth and sixth paragraphs describe the day to day working arrangements on Dalmagarry Moor as between DECL and the Respondent. It is noted that the Grazing Area has not been fenced off from the adjacent land forming part of Dalmagarry Estate occupied by DECL, and that sheep belonging to DECL also graze over the Estate and mix with sheep belonging to the Respondent upon the Grazing Area, “and consequently [the Respondent] does not have exclusive grazing rights over the Grazing Area.” Mr Tose “confirms” that “in recent years”, the Respondent has removed all his sheep from the Grazing Area during the months of November to March inclusive, and that DECL has “provided assistance to [him] in the running of his flock and pays for away wintering of his hoggs and the cost of regular pour-on treatments for their flock every 6-8 weeks during the spring/summer.” The flocks belonging to the Respondent and DECL are said together to act as “tick mops” for the benefit of grouse management upon Dalmagarry Estate, but the payments made to the Respondent “are designed to ensure that there can be no claim of any consideration in kind being received by DECL from [the Respondent].”

[73] A close reading of Mr Tose’s Letter of Comfort leads to the conclusion that it is more notable for what it does not, than for what it does, say. It is studiedly evasive as to the precise legal basis upon which, as Mr Tose understands it, the Respondent does graze sheep upon the Grazing Area. Whilst we are told that the “right to graze” is granted by DECL “in terms of its Estate lease” (i.e. the lease by Supreme Leader Limited in favour of DECL), the Letter of Consent nowhere expressly acknowledges that the Respondent actually possesses such a right. If the Respondent has such a right to graze, why then has DECL been declining to cash the cheques he has been tendering “for grazing upon the Grazing Area”? Mr Tose’s confirmation that the Respondent “has never claimed that he has any form of agricultural tenancy over the Grazing Area” sits somewhat uneasily with the immediately preceding narrative about the tendering of cheques by him, and DECL’s declinature to cash them. It begs the question of Mr Tose why DECL was not cashing the cheques, if not because of a concern that the Respondent was seeking to set up an agricultural tenancy over part of Dalmagarry Moor. The two sentences of the fourth paragraph of the Letter of Comfort, in terms of which Mr Tose first relates his understanding of how “the arrangement” began as an “informal grazing lease” between the Respondent and Lord Macpherson and family, before going on to affirm that, to the best of his knowledge and belief, the Respondent “never claimed to have established an agricultural tenancy over the Grazing Area with a previous owner”, together make up something of a non sequitur: Mr Tose does not indicate what (if anything) he considers the arrangement that began as an informal grazing lease subsequently became. Having first broached the subject, he then leaves it to the reader to draw his or her own conclusions as to what the legal consequences, if any, of the Respondent not having exclusive grazing rights over the Grazing Area might be (the Applicant makes no attempt, in this application, to rely on this aspect of the factual position) and in confirming that, in recent years, the Respondent has removed all his sheep from the Grazing Area during the months of November to March inclusive, Mr Tose again leaves the facts to speak for themselves. He does not, in terms, suggest that the Respondent removes his sheep during those months in implement of any contractual obligation, under a seasonal grazing agreement, to do so. The only place within the Letter of Comfort where Mr Tose strays from bald and non-committal factual narrative into explanatory mode is when he advises that the payments made to the Respondent were “designed to ensure that there can be no claim of any consideration in kind being received by DECL from [the Respondent].” That explanation seems to us once again to serve only to expose the disingenuous nature of Mr Tose’s previous statement that the Respondent “has never claimed” to have any form of agricultural tenancy over the Grazing Area: why then the concern on the part of DECL to ensure that there can be no claim of any consideration in kind being received by DECL from him?

[74] The contents of the Letter of Comfort, then, confirm the other evidence we heard as to how, during the period of Supreme Leader Limited’s ownership of Dalmagarry Moor, the owner and the Respondent delicately tiptoed around the “elephant in the room”. We think it is quite obvious from its terms that Mr Tose was well aware that there was an issue as to the basis upon which the Respondent occupied part of Dalmagarry Moor, but which he did not then wish to confront: the Respondent in turn continued tendering half-yearly rent cheques, in the sure knowledge that they would not be cashed, because (we infer) he at some point had received legal advice that he needed to do so to preserve his claim to have a secure tenancy thereof. This charade continued for some fifteen years, until Supreme Leader Limited succeeded in finding, in the Applicant, a purchaser for Dalmagarry Estate, and the problem became Mr Lundberg’s.

[75] One further point that arises out of the contents of the Letter of Comfort relates to how the Grazing Area is defined. Mr Tose states that as long as he has been the Estate sporting tenant, the Respondent “has grazed his sheep upon that part of the Estate shown hatched black and marked “grazing” on plan 1 annexed and signed as relative to the [1997] Disposition” [i.e. Production 30] in favour of Supreme Leader Limited. The area shown hatched black and marked “GRAZING” in block capitals on plan 1 (more properly “plan number one”, as it is referred to in the body of the deed) forms the northernmost of the subjects (IN THE FIRST PLACE) disponed by the 1997 Disposition, which comprise part of a composite area extending in total to 1826 hectares or thereby made up of subjects previously conveyed under three separate dispositions, most notably for present purposes the 1977 Disposition by the Tomatin Trustees in favour of Lord Macpherson. What is interesting about the Grazing Area is that at first glance, its southern boundary, depicted with a broken line, resembles and in terms of its location is not far removed from the mysterious dog-leg line that bisects Lot 18 on the 1946 sales particulars plan.

[76] The area shown hatched black and marked “GRAZING” on plan number one annexed and signed as relative to the 1997 Disposition is nowhere referred to in the body of the deed, and is not depicted as such for dispositive purposes. Also marked up on plan number one for illustrative purposes are the approximate locations of the different drives on the moor (D1, D2, D3, etc.). These non-dispositive markings up in our view fall to be treated as, in the conveyancing jargon, merely demonstrative rather than taxative. That said, however, Mr Tose’s statement that the Respondent had, for as long as he (Mr Tose) had been sporting tenant, grazed his sheep over that part of Dalmagarry Estate, might be thought to provide some independent support for the Respondent’s position with regard to the extent of the area of Dalmagarry Moor over which the MacQueen family exercised grazing rights, making it all the more surprising that the Respondent’s legal representatives’ initial instinct was to seek to exclude the contents of Mr Tose’s Letter of Comfort from the evidence.

[77] The true picture, however, is rather more nuanced than that. Closer examination discloses that the southern boundary of the Grazing Area does not correspond to the dog-leg line that bisects Lot 18 on the 1946 sales particulars plan. It runs in a north-easterly direction from a point on the western boundary some way south of that from which the dog-leg line on the 1946 sales particulars plan commences, and ends up at a point on the eastern boundary significantly further north than does the earlier dog-leg line. Nor is the Grazing Area co-extensive with the area claimed against for subsidy purposes by the Respondent as depicted on his IACS plan. We think it likely that what the Grazing Area as defined in the Letter of Comfort reflects is Mr Tose’s understanding of the area of Dalmagarry Moor that was subject to the management agreement between DECL and the Respondent. The Grazing Area was defined by reference to the contents of a plan provided by R & R Urquhart, the solicitors acting for Lord and Lady Macpherson, for the purposes of the 1997 Disposition, and so it in turn may be taken to reflect their understanding of the area of Dalmagarry Moor over which the Respondent’s sheep ranged at or about the time they were selling to Supreme Leader Limited. The lack of identity amongst the three southern boundaries under discussion seems to us to weaken any case that the southern boundary of the area shown hatched black and marked “GRAZING” on plan number one annexed and signed as relative to the 1997 Disposition may be taken as demarcating an historic recognised boundary between the Dalmagarry and the Invereen grazings. There is, in any case, no necessity for the area subject to any management agreement to be coextensive with the subjects of lease.

The testimony of the witnesses

Niklas Lundberg

[78] We can deal briefly with the evidence of Mr Lundberg, because as he readily acknowledged, he had no first-hand knowledge of the historical position as regards the central issue of the extent of the subjects of lease. Mr Lundberg was taken at length in his examination-in-chief through the progress of titles relating to Dalmagarry Moor, but the contents of those deeds, which we previously have recounted, speak for themselves and Mr Lundberg’s oral testimony added nothing to that material. Junior Counsel for the Respondent, in his closing submissions, attacked Mr Lundberg’s reliability on the basis of the confusion he evinced as to whether the Respondent was being paid to keep sheep on, or take sheep off, Dalmagarry Moor. We do not consider that anything turns on that point, for the reason already given. Junior Counsel for the Respondent also took Mr Lundberg to task for his ambivalence, under cross-examination, about acknowledging that the Respondent had a tenancy at all. Once again, we are inclined to dismiss this criticism as being devoid of substance. Mr Lundberg explained that the due diligence he had instructed on his purchase of Dalmagarry Estate had assured him that there was no tenancy, but whether or not he personally is reconciled to the fact that the Respondent enjoys a secure tenancy over some part of Dalmagarry Moor is immaterial, given that the Applicant, for the purposes of these proceedings, has accepted that to be the case. We found Mr Lundberg to be a credible and reliable witness.

Richard Seaman

[79] Mr Seaman only started to act for Mr Lundberg after the purchase of Dalmagarry Estate had been completed, and was engaged to provide him with strategic advice about the management of the grouse moor. He too had no direct knowledge to bring to bear on the issue of the historical extent of the subjects of lease, and the major part of his testimony, leaving aside the role he played in drawing up the plans lodged as Productions 2 and 126, concerned the negotiations with the Respondent in connection with the management agreement, the breakdown of which was to lead to the instigation of these proceedings. On Mr Seaman’s account, the first express assertion by the Respondent that he had a secure tenancy came in November 2016, in the form of the Respondent’s letter to him enclosing half-yearly rent cheque for £75, although Mr Seaman acknowledged that previous to that date, he had concerns about the lack of clarity surrounding the arrangement with the Respondent: it was in the course of Mr Seaman’s evidence that reference was first made to the presence of the “elephant in the room.” Mr Seaman testified that after November 2016 he had “implored” the Respondent to “give me something in terms of solid evidence” to vouch for his claim to have a secure tenancy, “so that we wouldn’t end up here” [i.e. in court], but the Respondent never did; it was Mr Seaman’s impression that he had been “legally briefed to say little.” He was referred in evidence to a letter written by the Applicant’s agents, Gillespie Macandrew, to the Respondent’s agents, Murchison Law, dated 2 March 2017, in which it was noted that “Requests have been made of your client to evidence his claim but nothing has ever been forthcoming. If you have evidence to support your client’s claim then we would be pleased to see it” [Production 41; also 45]. It was only at a very advanced stage in these proceedings, on 19 August 2019, that the Respondent for the first time produced items such as the 1936 and 1948 Minutes of Agreement that helped to vouch such a claim. When the Respondent’s position that he had told the Applicant’s gamekeeper Allan Hodgson (whose name appeared on the Applicant’s list of witnesses but who, in the event, was not called to give evidence) many times that he had a lease, was put to him for comment, Mr Seaman demurred. Mr Hodgson, through his employment with first Mr Tose and thereafter the Applicant, had been aware that there was an issue with the Respondent, the consequence of the “opaqueness” about his position: Mr Hodgson knew that the Respondent claimed to have a right to occupy some part of Dalmagarry Moor, but Mr Hodgson had never said to him that the Respondent had told him he had a 1991 Act tenancy. We found Mr Seaman to be a credible and reliable witness.

The Respondent

[80] The early part of the Respondent’s evidence-in-chief consisted of him being taken through the progress of titles and other deeds relating to Dalmagarry Moor in general and to Dalmagarry Farm in particular, and the results of that exercise are reflected in the factual narrative set out by us in paragraphs [15] to [29] above. We have related earlier in this note the substance of the Respondent’s evidence on particular issues that loomed large at the hearing: what follows is a summary of the balance of the Respondent’s testimony, and of what we made of it.

[81] The Respondent was born in 1960. He participated in some of the work of Dalmagarry Farm from an early age, and recalled that from the time he went into secondary school he would help take the sheep off Dalmagarry Moor at gathering time, perhaps not going all the way out to gather, but instead manning one of the usual break-out points. He went to work full-time on the farm upon leaving school, and he was assumed as a partner in the family farming business with his father and mother sometime in the mid-80s. When asked whether, by the early 70s, he was aware of the boundaries of the hill grazings, he asserted that they were simple: “We knew that we marched with Moy to the north, Farr to the west, with Dunbar (of Invereen) to the south, and by the railway line to the east”. In answer to the question whether there was any feature on the ground to locate the boundary between the Dalmagarry and Invereen grazing areas, he initially replied “Not really”, before indicating that there was a lone tree that, along with the Allt a’ Chuil burn, was in the general vicinity thereof. We did, in the course of our inspection, find that lone tree to which the Respondent had referred. The Respondent explained that his family cut peats on an area of Dalmagarry Moor situated “just over” the boundary onto the Invereen side. Asked whether there had been any changes in the extent of the hill ground in or after 1972, when his parents purchased Dalmagarry Farm from the Forestry Commission, the Respondent testified that the only change that had occurred was when the new A9 road went through in 1976. His parents were compensated for the loss to the roadworks of a piece of land situated between the railway line and the road.

[82] In response to the question whether he had any recollection of his parents’ meeting with Mr Mackenzie in June 1977, the Respondent replied “Not really”. That answer cropped up at a number of points during the course of the Respondent’s evidence, and we formed the distinct impression that this was a formula of words he resorted to when the question posed caused him some unease. The Respondent was quick to seize on the reference in Mr Hughes of BHM’s letter to Charles MacQueen dated 24 February 1977 [Production 74] to what the MacQueens put in their agricultural returns as a possible explanation for the proferring of the 400 acres and 1092 acres figures, and in response to the question how accurate those figures were as representing the acreage of the Dalmagarry Moor grazings, he stated emphatically that he did not think they were. When asked to offer an explanation for the “inaccuracy”, he replied that he did not know why the 400 acres figure was advanced, “unless it was an under-estimation”. Junior Counsel then asked the Respondent whether, in 1976, the part of Dalmagarry Moor the MacQueens were using was 400 acres, and then whether it was 1092 acres. Both of those questions elicited the answer “no”, although it is worthy of note that the Respondent’s answer to the second of those questions was barely audible. It was put to him that at the meeting with Mr Mackenzie in June 1976, his father had signed a map. Asked whether he thought that was likely something Charles MacQueen would do, the Respondent again answered in the negative, although no explanation for that answer was forthcoming from him. We find that position difficult to reconcile with the Respondent’s emphatic assertion, in response to the very next question he was asked, “How clearly would your father have understood the area he’d been using?”, that he would have had a clear understanding thereof. It wasn’t difficult, the Respondent contended, as “the whole hill just sits out in front of you”. That being the case, we are at a loss to understand why the Respondent should be so adamant that his father would not, when asked, have signed a map confirming the extent of the area of Dalmagarry Moor tenanted by him, as he understood it to be. The last question posed by Junior Counsel in this passage of the evidence, before the court rose briefly for a mid-morning break, saw him once again invoking the concept of the MacQueen family’s use of the hill grazing area. At any time in the 1970s, he was asked, did anything change about that use, eliciting the answer “Nothing”.

[83] We would interject, at this point in the narrative of the Respondent’s evidence, that as the hearing progressed, we became increasingly conscious of the existence of a tension, if not indeed to say a conflict, between the Respondent’s starting proposition, that the boundaries of the part of Dalmagarry Moor held in tenancy by successive generations of his family were well recognised and established and had remained unchanged since 1908, and the extent to which, in his line of questioning, Junior Counsel for the Respondent’s focus was on eliciting from the Respondent evidence of the MacQueen family’s use of Dalmagarry Moor in the modern (i.e. post-1972) era. This tension, or conflict, is reflected in the Respondent’s attitude towards the evidence of the events in the spring and early summer of 1977 that culminated in his parents and Lord Macpherson both signifying their acceptance of the contents of a map showing the extent of the area of Dalmagarry Moor over which the MacQueen family exercised their grazing rights.

[84] Even if, contrary to our own view, one were to accept for the purpose of testing the argument that it is credible that the Respondent’s parents were in ignorance as to whether the measured area of that part of Dalmagarry Moor that had constituted the hill grazings of Dalmagarry Farm since 1908 was 400 acres or in excess of 1700 acres, if they nevertheless knew where the boundaries of those grazings were situated, why would they not mark them up on Mr Mackenzie’s map? It is notable that, in the face of what seems to us to be credible and reliable contemporaneous documentary evidence that Charles MacQueen and Mrs Eva MacQueen did indeed in June 1977 sign off on a map showing the boundaries of the part of Dalmagarry Moor over which they claimed tenancy rights, the Respondent at no time sought to persuade us that what his parents would have depicted on that map (and what Lord Macpherson subsequently must have approved) was the 1700 acres plus area he now claims represents both the historic, and current, extent of the subjects of lease.

[85] As we previously have noted, the Respondent claimed not to know to what the “degree of contention” mentioned in the letter from Mr Whittle of Messrs R & R Urquhart to Colin Glynne-Percy dated 21 December 1989 was referring. Considering that the Respondent was by that date a partner in the firm, and on the basis that Mr Whittle would not have written such a letter without having been given some reason to do so, we found that answer unconvincing. Asked about his family’s relationship with (the now late) Lord Macpherson, the Respondent’s answers were characteristically terse and non-committal. They “got on OK with him”; relations were “good enough”. In response to the enquiry what Lord Macpherson was like as a person, the Respondent sidestepped the question, merely stating that he “didn’t know him that well”.

[86] When the agricultural subsidy regime changed over to the area-based IACS system in the early 1990s, you had, according to the Respondent “to register all the land that you were farming”. It was at this point in his evidence that the Respondent spoke to having contacted Angus Dunbar, now [long] retired, who went out onto the hill with him equipped with a map, in order that Mr Dunbar, a “good historian”, might point out to him where he thought the “potentially contentious” undefined southern boundary was. We would observe that any contention in this regard could scarcely have been with Mr Dunbar, as any interest he as tenant may have had in the adjacent land had come to an end of his own volition as long ago as 1976. The Respondent spoke of taking the map, by reference to which Mr Dunbar had indicated the location of that boundary, back to show his father. “Having agreed the line [sic]”, the MacQueens then transferred it onto a larger scale map that they submitted to “the Department”, which used that information to create their own map for Dalmagarry Farm, at the same time calculating the areas of each of the land parcels comprised therein. Asked whether, when the MacQueens registered for IACS, Lord Macpherson would have been aware of this, the Respondent did not answer the question directly. Instead he replied that they [the Macphersons] would be registering the land they were using themselves. Two people could not claim in respect of the same ground, and an overlap in claims would be flagged up by the Department.

[87] The Respondent’s father died in 1995, after which the estate, which had not put up the rent over the whole period Lord Macpherson had owned Dalmagarry Moor, stopped cashing the cheques tendered by the Respondent by way of rent. So began the period of the Respondent tendering rent cheques every six months, and the agents for Lord Macpherson (R & R Urquhart now dealing with this aspect of the estate’s business in place of Mr Mackenzie’s firm) declining to cash them. Lord Macpherson and his agents could have been in no doubt that in tendering rent cheques, the Respondent was thereby asserting a claim to have a tenancy of part of Dalmagarry Moor: his solicitors had formally intimated to R & R Urquhart the transfer of Charles MacQueen’s interest under a lease of the hill grazings to the Respondent in a letter dated 3 June 1996 [Production 26], but no challenge to that transfer was issued by Lord Macpherson then or at a later date.

[88] After the sale of Dalmagarry Moor to Supreme Leader Limited, the declinature of the Respondent’s rent cheques continued, but the new owners from an early stage adopted a more pro-active approach to the management of the hill ground, which resulted in the Respondent entering into the series of management agreements to which reference previously has been made. The Respondent’s first point of contact in relation to the operation of these arrangements was Mr Tose’s head gamekeeper, Allan Hodgson.

[89] It was clear from the evidence we heard that there was a significant degree of overlap between the objects of the management agreement between Mr Tose and the Respondent on the one hand and the MMP under the CPS, into which the Respondent initially was admitted for a period of five years (later extended to ten). As the Respondent put it, the MMP “dovetailed with the landlord’s objectives”. Put more cynically, it might be said that the Respondent had skilfully engineered a situation in which he was receiving payment from two separate sources for doing essentially the same thing, namely effecting a reduction in the number of sheep on the moor (which had greatly increased in recent years) and dispersing those that remained from the areas of good heather on the “in-bye” hill where they were apt to congregate, to the detriment of the natural environment, and undertaking, or at least not impeding the execution of, an organised programme of heather burning. At an early stage, the management agreement involved Mr Tose taking a grazing lease of land at Dell, Tomatin, for the Respondent to use, but it mutated into the arrangement already described, in which the Respondent himself arranged for the over-wintering of a large number of his sheep off-farm, and Mr Tose made a substantial contribution towards the over-wintering costs he incurred thereby.

[90] The Respondent insisted that when he became aware that Dalmagarry Moor had been put on the market by Supreme Leader Limited, he pointed out to John Bound of the selling agents, CDK Galbraith, that the reference in the sales particulars to there being a “grazing arrangement” in place with a local farmer, was “wrong and misleading”, because what he had was an agricultural tenancy, only to be told that “prospective purchasers were fully aware” of the situation. Mr Bound was another witness on the Applicant’s list who was not called to give evidence at the hearing, and so we have no evidence to contradict this element of the Respondent’s testimony.

[91] Notwithstanding the concerns expressed by the Respondent to Mr Bound about the contents of the sales particulars, it would appear that when Mr Lundberg became his landlord, the “elephant in the room” was once again delicately stepped around by all concerned. The Respondent seemingly refrained from asserting to Mr Lundberg or Mr Seaman when they first met that what he had was not a mere “grazing arrangement”, but rather was a secure agricultural tenancy over part of Dalmagarry Moor. Instead, he pressed the case for a new agreement for the management of the hill, with the question of the tenancy “still not resolved”.

[92] Under cross-examination, the Respondent initially adhered to the position that, so far as the extent of the Dalmagarry grazings was concerned, nothing had changed since 1908, other than the small area of ground lost to the A9. He did have to concede, however, that when the southern boundary depicted on his IACS map [Production 34] was compared with that shown on the hand-annotated working copy 1915 Inland Revenue map [Production 129], the two lines were not the same. Neither of those southern boundaries coincided with that shown on the 1946 sales particulars plan [Production 33]. Put to him that it was not right to say, in light of that comparative exercise, that the area of the Dalmagarry Moor grazings had stayed the same since 1908, the Respondent cavilled; his position, as we understood him, became one that the size of the areas variously depicted on those three maps had remained much the same, only the location of those areas had changed. New areas taken in by the Respondent’s IACS map were counter-balanced by an area to the north included on the working copy 1915 Inland Revenue map that “we don’t claim IACS for”. The Respondent did not advance any explanation of the process by which these changes in the boundaries of the area tenanted by his family on Dalmagarry Moor over time came about. On the Respondent’s account then, the boundaries of the land over which the tenancy existed shifted as it suited the MacQueens from time to time, without reference to their landlords. The Respondent was eventually forced to acknowledge that the area said to represent the extent of the MacQueen tenancy on the 1946 sales particulars plan was larger than the area depicted on the working copy 1915 Inland Revenue map, and the area claimed by the Respondent by reference to his IACS map in turn was larger than that shown on the 1946 sales particulars plan. He came to accept also that “We drew the southern [boundary] line in the wrong place” on the IACS map, but that express admission leaves open the question of where the right place would be, and undermines any confidence one might have in the Respondent’s ability to pin it down. It will be recalled that it was the southern boundary on the IACS map that the Respondent claimed had been plotted with the assistance on the ground of the late Mr Dunbar.

[93] The seeming elasticity of the boundaries of the hill grazings as acknowledged by the Respondent under cross-examination, in our view, further undermined the case that before World War II, what the MacQueens enjoyed was a tenancy of a formally recognised and clearly demarcated part of Dalmagarry Moor, and provided additional support for an interpretation of that evidence that the MacQueens and the Dunbars shared a common hill, on which while, as a matter of practicality and practice, the MacQueen flock would occupy the northern part and the Dunbar sheep the part to the south, neither family would have conceived of themselves as having the tenancy of a specific area or acreage to the, at least theoretically possible, exclusion of the livestock of the other family. The Respondent’s evidence about the MacQueen family’s peat bank being situated across the notional boundary on the Dunbar family’s tenanted land struck us in particular as being somewhat fanciful and unlikely. The evidence we heard indicates that before the Respondent left school and took up full-time work on Dalmagarry Farm with his father, the number of sheep grazed by the MacQueens on Dalmagarry Moor had been maintained at a similar level over decades. The retirement of Mr Dunbar, with no other sheep coming onto Dalmagarry Moor to fill the gap thereby created, accompanied by changes in the agricultural subsidy system that incentivised farmers to maximise livestock numbers, provided both the opportunity and the motive for the MacQueens to increase the number of sheep they put out onto Dalmagarry Moor, which they duly did.

[94] The Respondent was adamant, when challenged on the position adopted by him in his examination-in-chief that he had no idea what the “degree of contention” mentioned in Mr Whittle’s letter to Mr Glynne-Percy dated 21 December 1989 was alluding to, that “We’ve never claimed 2500 acres”. Asked about the [occupier’s copy] agricultural census returns for June and December 1976 recovered shortly before the hearing [Productions 141 and 142], the Respondent confirmed that he himself had completed them and that he retained copies relating to other years. He initially contended that the 162.3 hectares (401 acres) put down on the returns as the area of the rented land was an “underestimate”, but he was to concede that he must have realised it was not even a close estimate of the area of the hill grazings if, as he now claims, the tenancy extended to in excess of 1700 acres. He testified that the same figure had been entered in the returns submitted in previous (1971-1975) years, and he thought that he continued to enter it in the returns until the introduction of IACS in 1993. He claimed otherwise not to know why this figure was maintained in the returns, making the point that there was no financial benefit in so doing. He thought it was “quite common for areas to be underestimated”, although he proferred no explanation as to why this should be, given that, as he himself had just observed, there was nothing to be gained financially thereby. Asked about the contents of the Inspector’s Report of 1966, the Respondent floated, somewhat weakly, the possibility that the overall farm area of 1092 acres referred to therein was not necessarily made up of the 688 acres subsequently purchased by his parents plus the 400-odd acres of the Dalmagarry Moor grazings, because his parents might at that time have been renting from the Forestry Commission a larger area than they subsequently bought, but he did not provide any substantiating detail to enhance the credibility of that claim.

[95] Senior Counsel for the Applicant demonstrated, by contrasting the livestock numbers detailed in the Dalmagarry Farm accounts for the years ending 28 May1952 [Production 103] and 28 May 1953 [Production 104] with those recorded in Mr MacLellan’s report [Production 99] that what had been, during the 1950s, a flock consisting of some 250-300 breeding ewes with a commensurate number of ewe hoggs retained each year to replace the cast ewes and maintain it at that size, had by 2015 swelled into a flock of some 700-750 plus replacements and 60 beef cattle. The Respondent acknowledged that this increase had started back around the early 1980s, and that livestock numbers had gradually increased since then. Put to him that as numbers increased, so he would require more land (by the late 1980s, the Respondent was in practice in control of the day to day management of Dalmagarry Farm), the Respondent deflected the question, suggesting that you would manage the livestock differently. He denied that he had an incentive to claim more land as being part of his tenancy as he increased sheep numbers. In response to the suggestion made to him that whilst it was beneficial to him to claim a greater area as being subject to his tenancy as his flock numbers increased, the landlord, because of the incidental benefits to the grouse shooting of having sheep on Dalmagarry Moor, had no corresponding incentive to object to his sheep spreading out over a wider area, the Respondent retorted that the landlord would have been objecting if he had been using land he was not meant to be on. On the hypothesis that the tenancy on Dalmagarry Moor was only 400 acres, Senior Counsel suggested that the landlord might accept that sheep would stray beyond an unfenced boundary and not take objection thereto. That was, said the Respondent, a “plausible theory”, but it was not what happened in this case.

[96] Cross-examination of the Respondent continued into a second day (Thursday 5 September), when Senior Counsel for the Applicant commenced by exploring with the Respondent why, after Mr Lundberg purchased Dalmagarry Moor, the Respondent did not produce to him or his agents the documents he held that evidenced the existence of a tenancy in his favour, notwithstanding that he was aware that they were attempting to identify the basis upon which he was occupying part of that tract of land. This line of questioning once again did seem to us to be somewhat double-edged for the Applicant, in that it readily might be argued that the Applicant and its agents were being equally circumspect in their dealings with the Respondent, and it was not made manifest in the evidence we heard that Mr Seaman or anyone else in Mr Lundberg’s entourage ever actually asked the Respondent to exhibit to them any documentary evidence he might possess confirmatory of the existence of a secure agricultural tenancy in his favour before late in 2016, when the dispute that ended up at proof in Carrbridge Village Hall in the autumn of 2019 finally assumed solid form and emerged into the light. Before that date, both sides preferred to avoid addressing the underlying tenancy question, focussing instead on negotiating the terms of a new management agreement.

[97] The Respondent claimed that he did not know “until this [by which we took him to mean the present litigation] started” that a lot of these documents existed and were in his family’s possession, and he claimed that he had not previously looked for them. We treat that claim with deep scepticism, given that he had been aware since the death of his father in 1995 that the existence of a tenancy in his favour was being called into question by his putative landlord, as evidenced by the repeated refusals to cash his tendered rent cheques, and he had, as he was to acknowledge, been taking the advice of solicitors about the situation over the intervening period. When Senior Counsel suggested that the Respondent had been nervous of producing any documentation to the Applicant’s agents in case it prejudiced his claim to the area on Dalmagarry Moor he was presently occupying, the Respondent replied that he was indeed mindful of his own solicitor’s instruction that he should go warily. The Respondent accepted that lodged correspondence from the 1960s and 1970s ostensibly in connection with a statutory rent review process [Productions 38 and 67] implied that the parties thereto knew what area on Dalmagarry Moor his father occupied, and that any subsisting lease in his favour, as a continuance of the most recent written lease pertaining to the subjects of which he was aware, the 1936 Minute of Agreement, as modified/confirmed by the 1948 Minute of Agreement, would run from Whitsunday (28 May) to Whitsunday.

[98] Little that was new or relevant emerged from the Respondent’s re-examination, apart from the attempt made by Junior Counsel for the Respondent to establish a link between what was represented to be a date (22/11/46) written in pencil on the face of the working copy 1915 Inland Revenue map and the date of execution of the 1946 Disposition. As we understood it, Junior Counsel was suggesting that the date handwritten onto the working copy 1915 Inland Revenue map was significant because it provided a date for a pencil line drawn on that map that correlated to the line of the southern boundary shown on the 1946 sales particulars plan that showed the subjects subsequently purchased by Mrs Bulloch. The Respondent’s solicitor, Mr Murchison, in explaining the provenance of the working copy 1915 Inland Revenue map, as so annotated, heralded it as a “rare survivor” that had been unearthed recently in an Inverness archive, but the problem with evidence of this sort is that we cannot, at this distance of time, know who made the handwritten annotations, when, and for what purpose. Our task in making sense of the contents of the working copy 1915 Inland Revenue map was not assisted by the fact that we were working from unauthenticated photocopies of poor quality, which made deciphering annotations and interpreting the significance of the sundry lines that were marked up thereon an exercise it was impossible to carry out with any degree of confidence.

[99] We did learn, in response to a question posed by the agricultural member of the court before the Respondent left the witness box, that in the run-up to what was the private sale of Dalmagarry Moor to Supreme Leader Limited in 1997, Lord Macpherson had complained about over-stocking on the part of the Respondent: indeed, the Respondent indicated that this was a reason cited by Lord Macpherson for not accepting the transfer of the tenancy to him after the death of his father. There were negotiations between the two sides with a view to reaching an agreement on stock numbers that ultimately proved inconclusive, because the Respondent was resistant to being, as he put it, “tied down to a set number of sheep” by his landlord. That Lord Macpherson was seeking a reduction in the number of sheep the Respondent was grazing over Dalmagarry Moor implied that he must have had an idea of the number of sheep that were there in the first place. The Respondent confirmed that there were significant changes in his management of the farm from the 1980s onwards. The cattle herd was sold off in 1980, and the MacQueens did not have any cattle for a number of years. Sheep numbers were increased substantially, and more use was made of the grazing on Dalmagarry Moor, augmented by the provision of mineral blocks and supplementary feeding. In these circumstances, the Respondent’s subsequent entry into the CPS, with the consequential reduction in sheep numbers that was an element of the MMP, “seemed to suit everyone”, and so when the sale to Supreme Leader Limited went through, “there was no dispute as to the area we were using”.

Mrs Joan MacQueen

[100] The evidence of the Respondent’s wife Mrs Joan Mairi MacQueen was in relatively short compass, and added little to what her husband had told the court. She was born in 1963 and married the Respondent in 1984. The couple have four children, and we understood from her evidence that a son, Thomas, had joined his father working on the farm. Mrs MacQueen had two part-time jobs, as an administrative assistant and as a church worker. Her involvement in the day-to-day work of the farm was not extensive now that Thomas had grown up and was available to help his father. Mrs MacQueen’s knowledge of Dalmagarry Farm dated back to the early 80s, when she visited the farm in the three years or thereabouts before the couple’s marriage. Back in those days, she would probably have been on Dalmagarry Moor to assist at gathering time or with peat cutting. Asked in examination-in-chief whether anybody had ever shown her the boundaries of the MacQueen family grazings on Dalmagarry Moor, she replied “not specifically”, but added that “when we gathered I knew when we came back over the top we were back on home territory”. She knew the east boundary because of the railway line, and claimed to know the south boundary because of the peat cutting. The peat bank utilised by the MacQueens was situated on the east side of, and very close to, the burn, nearer the principal part of the farm where, in the early part of her married life, she and her new husband had lived in the bungalow erected next door to the main farmhouse, in which her parents-in-law Charles MacQueen and Mrs Eva MacQueen resided. The peats, she interjected towards the end of her evidence-in-chief, were cut on what was Mr Dunbar’s ground. Her knowledge of the boundaries came exclusively from her husband: his parents did not show her the boundaries. Asked about the Respondent’s IACS map, and how it came to be produced, she spoke to remembering her husband “meeting up with our neighbour Angus Dunbar” to check the boundaries with him. She claimed to recall Mr Dunbar sitting outside the house in his vehicle with a map. Charles MacQueen was then still alive, and although aged about 80 still in possession of all his faculties, and he was also involved in the exercise.

[101] Asked about matters pertaining to the history of the present dispute, Mrs MacQueen acknowledged that she was aware that there had been what she characterised as “some confusion” about the boundaries in the past, which she dated to when Lord Macpherson bought the estate. The suggestion that the Respondent’s tenancy extended to a mere 400 acres she had heard for the first time only relatively recently, when they received a map from the Applicant with a 400 acres plot shown depicted on it. Specifically directed to address any involvement she may have had with the landlord or any of his representatives during the 1980s, she stated that she never met Lord Macpherson, but that she may have met Colin Whittle; she knew he had been in their house, but she could not remember if she had been there at the time. She spoke to the deterioration in relations between landlord and tenant after the death of Charles MacQueen in 1995, although matters improved during the period of Mr Tose’s proprietorship, and of raising with Mr Bound of CKD Galbraith at the time of the sale to Mr Lundberg the misleading nature of the description of the “grazing arrangement” that appeared in the sales particulars: a grazing arrangement was not the same thing as an agricultural lease, and Allan Hodgson had been told this also. The discussion with Mr Bound had taken place in the MacQueens’ own home, but Mrs MacQueen herself had not said anything to him. We took from this that her account of what Mr Bound was told came to her through her husband. Her account of the failure of the present parties to agree a new management agreement in respect of Dalmagarry Moor, and the subsequent drawing up of battle lines, was uncontroversial.

[102] When Junior Counsel for the Respondent enquired when she first became aware of the existence of the 1977 conveyancing correspondence, with its references to areas of 400 acres and 1092 acres, Mrs MacQueen’s response was curiously uncategorical and evasive. Asked if she had heard of those figures previously, she replied that she did not think that she would have done. She roundly rejected the suggestion of Junior Counsel for the Respondent, presumably intended to represent a distillation of what he took to be the Applicant’s position, that Charles MacQueen might have agreed to 400 acres and then attempted to extend the grazing area beyond that which had been agreed. Her father-in-law, she emphasised, was a very honest person, who would not have done anything knowingly dishonest.

[103] Mrs MacQueen was subjected to the lightest of cross-examination, but the members of the court did seek clarification from her about the date and circumstances of Mr Whittle’s visit to Dalmagarry Farm. Mrs MacQueen thought that the visit took place when her two eldest children were still very young, which would place it at or about the time when Mr Whittle was writing to Mr Glynne-Percy about the “degree of contention” that had arisen about the extent of the MacQueens’ tenancy on Dalmagarry Moor. Mrs MacQueen was not privy to what was discussed between her husband and Mr Whittle on the occasion of Mr Whittle’s visit to Dalmagarry Farm, and we recognise that it may have concerned some other issue entirely, but what we find surprising is that the Respondent did not, when quizzed about the contents of Mr Whittle’s letter to Mr Glynne-Percy, proffer the information that Mr Whittle had ever come to see him at Dalmagarry Farm.

[104] Mrs MacQueen was a confident and fluent witness, whose alacrity in volunteering corroborative evidence in support of what the Respondent previously had told us, in response to the cues provided in the questions posed to her, left us with the distinct impression that she may have been primed by him in what she was to say at certain points in her testimony. The passages in her testimony about which we harboured the greatest suspicion in this regard were her accounts of the circumstances in which the boundaries shown on the ICAS map were arrived at, her husband telling both Mr Bound and Mr Hodgson about the contents of the sales particulars in advance of the sale to Mr Lundberg, and her unsolicited volunteering of the information that the area in which the MacQueen family cut their peats was located on Mr Dunbar’s ground.

Iain MacQueen

[105] Andrew John (known as “Iain”) MacQueen (73) farms at Balloan Farm, Farr, Inverness-shire, where he keeps upland sheep and suckler cows. His father Willie was a brother of the Respondent’s father Charles MacQueen, making him a first cousin of the Respondent. Mr MacQueen’s memories of Dalmagarry Farm stretched back to his early childhood, and throughout his life he had been “back and fore there”, including assisting with gathering sheep off what he referred to as the hill grazings on the west side of the road at shearing time from the mid-1960s until the late 1970s. When asked whether he understood the boundaries of the Dalmagarry Farm hill grazings, he responded “Well yes, but not minutely.” He understood them to take in “all the hill facing”, with the boundary being the watershed (the top of the hill) on three sides, and the fourth (east) side being the railway line. A watershed may be defined as a high piece of land or ridge that divides the flow of water to different rivers, basins or seas.

[106] The Dalmagarry and the Invereen sheep were gathered on the same day. On a gathering day, Mr MacQueen and his neighbour David Bruce, a big, able lad with a good dog, would walk over from Farr, some 6 or 7 miles as the crow flies to the west, along the Uisge Dubh burn. At the point where the burn took a right angled turn, the two would separate, one continuing to follow the burn, the other taking the southern face of Carn na h’Easgainn, sweeping the sheep they encountered before them. At the same time, one or both of Mr MacQueen’s uncles (i.e. Charles MacQueen and his brother) would be coming out from the Dalmagarry side to meet them. At this time, Inverernie Estate to the west had taken its sheep off the hill, so the gatherers coming in from the west side would encounter Dalmagarry and Invereen sheep that had roamed out over the moor beyond the undefined western boundary of the subjects purchased by the Tomatin Trustees in 1948. In that era, Dalmagarry and Invereen would both have had some 200-250 ewes, with their lambs, plus hoggs, out on the moor over the summer. The sheep then were hefted to their respective ends of the moor, albeit with some intermingling, but on gathering day, having been headed off, the Dalmagarry and Invereen flocks naturally tended to gravitate back towards their own home farms.

[107] Mr MacQueen, a patently honest and impressive witness, had understood that his uncle had the grazings on Dalmagarrry Moor on a tenancy. He recalled Charles MacQueen telling his late father (who died at the age of 87 in 2001) at some time in the 1970s that the estate were claiming that the subjects of lease extended to only 400 acres, a suggestion he said was met with “incredulity” by both of them, but he had gathered that the matter had eventually been sorted out, by the signing off of a map. He speculated that this sequence of events would have been triggered by an impending sale, here the sale to Lord Macpherson in 1977. Years down the line, probably into the 1990s, he discovered that the issue was “bubbling up again”, occasioned, he speculated, by changing attitudes amongst the shooting fraternity towards the presence of sheep on grouse moors. Things went in cycles, with sporting proprietors going against sheep, and wanting them off the moors, and then, as in the last few years, wanting them back on again (i.e. the ”tick mop” concept). His late father had sufficient interest in the issue to have penned a “sheep v grouse” article for the Shooting Gazette. Shown the letter from Mr Whittle to Colin Glynne-Percy dated 21 December 1989, he confirmed that its contents accorded with his recollection that the issue of the extent of the subjects of lease had come up again, and that this was known about within the wider MacQueen family. In re-examination, Mr MacQueen expressed the view that Charles MacQueen would not, in 1977, have signed up to an area of 400 acres on a map, and as a man of honour, of whose personal qualities he earlier had spoken highly, would not have signed up to the smaller area and then used a larger one. Asked how accurately, in the 1970s, he thought Charles MacQueen would have been able to state the acreage of his hill grazings, Mr MacQueen answered cautiously: it would be difficult to be accurate. Pre-IACS, people generally did not have maps of their holdings. He himself, when IACS came in, had to travel through to the Ordnance Survey map shop that then was open in Aberdeen to acquire O.S. maps for himself and a neighbour, only to encounter “a queue out the door” of other farmers on the same mission.

[108] Whilst we accept Mr MacQueen’s evidence on that last point on the level of generality, we are sceptical that it has any application in the particular circumstances of this case. The MacQueen family evidently did possess a copy of the 1946 sales particulars, with their enclosed plan, which, if the “dog-leg” line dividing Lot 18 that appears thereon is indeed a contemporaneous printed marking (as we understand the Respondent to contend), meant that they did have a map of that part of their holding, although on that hypothesis, it begs the questions why, when IACS came in, the Respondent, on his evidence, had to go to such lengths as taking his aged neighbour Mr Dunbar up onto Dalmagarry Moor to point out the boundary between the Dalmagarry and Invereen grazings to him, and why the area he duly included on his IACS map did not coincide with the part of Lot 18 above the “dog-leg” line on the 1946 sales particulars plan. It struck us as significant that although Mr MacQueen spoke of the late Charles MacQueen, in conversation with his own late father, dismissing as “preposterous” the idea that the grazings area pertaining to Dalmagarry Farm on Dalmagarry Moor was only 400 acres, he was not asked in examination-in-chief or re-examination what other acreage he himself understood it to have. The other difficulty with this aspect of Mr MacQueen’s evidence is that the suggestion that the grazings area on Dalmagarry Moor was only 400 acres came originally not from the landlords, but from the MacQueens themselves.

The expert evidence

[109] We did not, ultimately, find the evidence of the two experts led by the parties to be of any great assistance in reaching a decision in this application. In expressing that view, we intend no disrespect to either Mr McDiarmid or Mr Newlands: the problem arose with the task Mr McDiarmid was set by those instructing him, Mr Newlands’ report being merely a critique of what Mr McDiarmid had been asked to do.

[110] Mr McDiarmid (84) has been actively involved in hill sheep farming all his life and has long been a prominent and well respected figure in the industry. He is a partner in, and still takes an active part in the management of, the family farming business, based at Aberfeldy and running sheep in Highland Perthshire (the west end of Rannoch and the head of Glenlyon) and near Fort William. He has served as a Branch and Area Chairman and Council member of NFU Scotland and was a member of the Secretary of State’s panel of arbiters. He has acted as an arbiter and valuer and is a former Chairman and President of SAAVA (the Scottish Agricultural Arbiters and Valuers Association) and has given evidence as an expert in previous cases before this court. Both Senior Counsel for the Applicant and Junior Counsel for the Respondent having signalled in advance that they intended to challenge the admissibility of the other’s expert evidence, we heard the evidence of both Mr McDiarmid and Mr Newlands under reservation, the admissibility issue to be reverted to by Counsel in the course of their closing submissions.

[111] Mr McDiarmid spoke to a written report dated 13 August 2019 [Production 111A], which supplemented an initial report in the form of a letter from him to Mr Seaman dated 29 October 2018 [Production 111B]. The covering letter of even date he sent to Mr Seaman [Production 111C] with his initial report records his remit as being “to inspect an area of land on Dalmagarry Estate at Tomatin, Inverness-shire to give evidence on the historic level of rents in the Highlands.” In his initial report, Mr McDiarmid recorded his impressions following an inspection of an area of 400 acres at Dalmagarry on 23 October 2018. In his oral testimony, he explained that this area was pointed out to him on the ground rather than indicated to him by reference to a map. He described the 400 acres area in his initial report as having an open march on three sides, with the fourth side fenced with a stock fence which he was given to understand formed the boundary between the Applicant’s land and the Respondent’s land. By the “stock fence” we took him to mean the fence on the easternmost extremity of Dalmagarry Moor, running down the side of the railway line and around the three fields of Dalmagarry Farm in-bye land that are situated to the west of the railway line. It was our impression of his evidence that the 400 acres area Mr McDiarmid assessed was not the same area, the boundaries of which were plotted by Mr Seaman on the plan that became Production 2, but was rather the innermost arc of 400 acres of facing hill as viewed from the railway bridge which area, on the basis of our own inspection, as well as from the evidence of the MMP, is the part of Dalmagarry Moor that historically has been most heavily used by the MacQueen sheep. Mr McDiarmid characterised the 400 acres as being “typical hill grazing of the area with odd patches of grass among the heather,” with no fixed equipment or tenant’s improvements. He assessed it as having a stocking capacity (at a density of approximately 5 acres per breeding ewe) of between 71 and 82 ewes, and related that in his experience, pitching rents on hill farms was nearly always done on a per ewe rather than a global basis, a proposition that Mr Newlands was later to endorse. Mr McDiarmid visited Dalmagarry Moor again on 28 November 2018, the new information gleaned on that occasion informing the contents of his subsequent report dated 13 August 2019.

[112] On his second visit, Mr McDiarmid also viewed and considered the larger, circa 1700 acres, area over which the Respondent now claims to have a tenancy, as depicted on his IACS map. He considered this area to be “poorer and not so well managed”, and consequently assessed it as having a lesser carrying capacity. He made the important point that the larger area would be more difficult and time consuming to manage, and that this would be reflected by the tenant paying a lesser rate per ewe. At a stocking density of 6/7 acres per breeding ewe, the 1700 acres, in Mr McDiarmid’s opinion, could carry 242/283 ewes. He then applied his own personal knowledge of the historic levels of rent payable for comparable hill land to determine whether the annual rent agreed for the grazing of part of Dalmagarry Moor at Whitsunday 1974 (£150) was more consistent with an acreage of 400 acres than of 1700 acres. He concluded that it was more consistent with the smaller acreage, and was “a bit low” even for that. Had it been 1700 acres, he would have anticipated a rent of somewhere between £484 and £544. What Mr McDiarmid was being asked to do, in effect, was to extrapolate from the level of rent payable in 1974 the likely extent of the subjects of lease. In his report dated 13 August 2019, he also volunteered, presumably having been asked to do so by the Applicant’s agents, what he reckoned the annual rents would have been for 1700 acres of Dalmagarry Moor in 1946 and 1961. The figures he put forward were substantially higher than the actual rents payable in 1946 (£10) and 1961 (£40): it emerged in the course of Mr McDiarmid’s oral testimony that he had not been afforded sight by those instructing him in advance of the hearing of the productions that vouched for the levels of rent actually paid as at those dates. It was only at the very close of his examination-in-chief that it was disclosed to Mr McDiarmid that the parties had agreed an annual rent of £40 in 1961 and he was asked by Senior Counsel for the Applicant whether that new information would make any difference to the figures in his report. Having considered the point over the lunchtime recess, Mr McDiarmid, on his return to the stand, entirely understandably declined to provide an instant view in response to that question, indicating that he would require more time to consider the matter properly.

[113] The flaw in this approach, to which Mr McDiarmid himself was alive, was that it assumes an essentially linear progression in levels of rent, relative to stock carrying capacity, that takes no account of special factors that may have impinged on what was actually agreed between landlord and tenant. Mr McDiarmid was familiar with hill grazing arrangements where the agricultural and the sporting interests had to be managed around one another, and he readily acknowledged that in such situations, there might well be what he referred to as a “goodwill deduction”; i.e. the rent payable would be at a lower level than open market rate as a quid pro quo for the tenant’s willingness to adhere to a perhaps unwritten code of conduct between the parties that they would endeavour to cooperate with one another in their respective endeavours, as for instance by the farmer not going out onto the moor to gather on a day when a shoot was planned. There was no evidence before the court that any of the successive rents of £10 (1946), £40 (1961) and £150 (1974) were calculated on a per ewe rather than a global basis.

[114] Mr Newlands, in his August 2019 report [Production 139] complained that Mr McDiarmid’s report appeared to proceed on the possibly unwarranted assumption that the condition of the grazings and the fixed equipment (or lack of it) had remained unchanged since 1939. We were not greatly impressed by this point: as Mr McDiarmid observed, with a heather hill of this nature, with little scope for re-seeding, it was difficult to see how it could have changed in a significant way over the period under discussion. The only available means of maintaining and improving the quality of the heather was through a programme of muirburning in sections. Mr Newlands’ more fundamental objection was that the quality of the land and its carrying capacity were only two of the many possible factors that might affect the rental figure agreed, and he set out at paragraph 2.1 of his report a long list of what those other possible factors might be. Whilst many of the other possible factors cited by him, he accepted under questioning from the court, had no possible application whatsoever to the circumstances of the present case, his broad point that it would not be reasonable or safe to attempt to form a view as to the extent of the subjects of lease based solely on the level of the passing rents from time to time, and in the absence of a clear understanding of the circumstances and the intentions of the parties in setting those historic rents, seems to us to be unanswerable.

[115] Senior Counsel for the Applicant’s prospective objection to the admissibility of Mr Newlands’ report was to have proceeded upon the basis that Mr Newlands was subject to a conflict of interest, but at the stage of closing submissions, he intimated that he was not insisting on that objection. Junior Counsel for the Respondent, in his closing submissions, renewed his objection to the admissibility of Mr McDiarmid’s evidence. He referred us to the case of Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59 as an authoritative recent statement of what the court today expects of an expert witness, and he set out the ways in which, in his submission, Mr McDiarmid’s evidence did not meet those criteria. He challenged Mr McDiarmid’s credentials to give expert testimony as to historic rental levels on the basis that whilst what he was speaking to bordered “somewhere around statistical and/or historical analysis”, Mr McDiarmid was neither a qualified surveyor nor a historian, and furthermore queried whether there was, in relation to these matters, a reliable body of knowledge and experience to which any expert witness might speak. He complained that Mr McDiarmid had not supplied a curriculum vitae along with his report, and more fundamentally had failed to identify the source of the figures for historic rents upon which he had relied in his calculations. He was also critical of the failure of the Applicant’s agents to supply Mr McDiarmid with all of the relevant information about the case, not least the evidence as to the levels of rent actually payable in 1946 and 1961. Mr McDiarmid himself exhibited his irritation upon discovering the extent to which he had been kept in the dark by those instructing him, not merely in respect of their failure to afford him sight of productions such as the 1946 sales particulars and the correspondence concerning the 1961 rent review, but also in omitting to inform him, before the start of the hearing on 3 September 2019, that his evidence as to historic levels of rent was going to be challenged by the Respondent.

[116] Whilst there undoubtedly were shortcomings in the manner in which Mr McDiarmid’s expert testimony was presented in its written form, we consider that Junior Counsel for the Respondent’s attack on his credibility and reliability was considerably overstated. We do not accept either that Mr McDiarmid was not qualified to provide expert testimony in relation to the matters to which he spoke in evidence, or that historic levels of rent on sheep farms in the Scottish Highlands cannot form a reliable body of knowledge or experience. The fundamental problem with Mr McDiarmid’s evidence lay in the limitations inherent in the task he had been set. Mr McDiarmid’s occasional testiness in his exchanges with Junior Counsel for the Respondent was, we suspect, triggered by his own sense that he had been left exposed in the witness box as a result of having been sent on what was something of a fool’s errand. We are not disposed to exclude any of Mr McDiarmid’s evidence as inadmissible, and some of his testimony about the practical workings of grazing arrangements on predominately sporting estates was of value, but we are not persuaded that it is legitimate to draw any conclusion as to the likely extent of the subjects of lease from the level of rent agreed in 1974 in the manner his report purports to do.

Discussion

The Inspector’s Report and agricultural census returns evidence

[117] We commence our discussion of the evidence we heard by considering the probable origins of the figures of 400 acres and 1092 acres that feature in the Applicant’s alternative craves. The contents of the Inspector’s Report in connection with the 1965 Scheme and the occupier’s copies of the two 1976 agricultural census returns establish that before the agents acting for the owners asked the Respondent’s parents, in preparation for the sale of Dalmagarry Moor in 1977, for information as to the extent of the subjects occupied by them thereon, the figures of 400 acres and 1092 acres or thereby that they variously put forward in answer to that question had been in currency for more than a decade. It also emerged during the evidence of the Respondent himself that the same figures as had featured in the occupier’s copies of the 1976 agricultural census returns continued to be entered by him in the returns for a number of years after the sale of Dalmagarry Moor to Lord and Lady Macpherson.

[118] On the Respondent’s own account this was simply a case of an original error carelessly perpetuated in returns made in subsequent years, but this explanation seems to us to be deeply implausible, for a number of reasons. In the first place, nothing about the evidence we heard about the characters of Charles MacQueen and his wife, who by all accounts (notably that of the Respondent himself) were punctilious and correct in their dealings, leads us to believe that they would have sanctioned completion of the agricultural census returns submitted in the name of their business in a slapdash manner: on the contrary, the contents of the occupier’s copies convey the impression that the two 1976 returns were completed with considerable care. In the second place, given that the issue of the extent of the area tenanted by them on Dalmagarry Moor loomed large at the very time the agricultural census return as at 1 June 1977 would be awaiting completion, and the apparent resolution of that issue would still be fresh in the mind when the next half yearly return as at 1 December 1977 arrived in the post, it is hard to credit that, if the 162.3 hectares (401 acres) figure inserted in the two 1976 returns was now recognised as being wildly incorrect, it would, nevertheless, have been repeated.

[119] In his closing submission, Junior Counsel for the Respondent drew our attention to an observation made by a Divisional Court in Macaskill v Taylor and Another 1970 SLCR App 34 at page 36 to the effect that:

“… the acreages quoted in the Agricultural Returns, which represent nothing more than the guesses of the occupiers of the subjects, are notoriously unreliable and are without authority of any kind.”

He pointed out that Macaskill was contemporaneous with some of the events with which this case was concerned and he further argued, in support of his submission that it would be “foolish to speculate about how precisely the 400-acre figure came about”, that previous incorrect measurements might simply be repeated from previous years, because the contents of the returns “had no impact on any subsidy or payment. The important part was to get livestock figures correct because the payment was made on a headage basis.”

[120] In Macaskill, the Divisional Court was tasked with establishing the boundaries and extent of two adjacent crofts and the common grazing they shared. As the rubric to the report narrates, “the areas shown in the estate records, the register of crofts and the agricultural returns all differed, and none corresponded with the evidence of use and possession led by a former occupier and corroborated by an aerial photograph.” The applicant contended that the total area of the two crofts and the common grazing was about 49 acres, the two crofts accounting for about two acres each and the rest being common grazing. The evidence led by the applicant in support of that position, which relied:

“partly on his assertion that each of them is shown in the Agricultural Returns as extending to approximately 24½ acres, a figure which is manifestly very far from being accurate, and partly on his assumption that, since the rents are equal, the area must also be approximately equal,”

clearly did not impress the Divisional Court. The court’s own surveyor, using the 6 inch Ordnance Survey sheet, had estimated the total area of the two crofts and the common grazing as extending only to some 34.6 acres, which explains why the Divisional Court dismissed the applicant’s figures as “manifestly very far from being accurate”. Furthermore, the evidence of unchallenged occupation over a very long period undermined the applicant’s position that the two crofts were of approximately equal size. It was in that context that the Divisional Court made the observation that in their experience, the assumption that since the rents were equal, the area must also be equal, was unwarranted, and that the acreages quoted in agricultural returns represented “nothing more than the guesses of the occupiers of the subjects”.

[121] We do not accept that such evidence of area as may be provided by the contents of agricultural census returns falls to be dismissed in the blanket manner Junior Counsel for the Respondent seemed to be urging on us, and to the extent that the passage in Macaskill may be read as supporting such an approach, we would wish to distance ourselves from it. In the post-IACS era, when eligible croft and farmland has been mapped with great exactitude for the purposes of an agricultural subsidy regime under which receipt of subsidy is no longer linked to production, crofters and farmers have ready access to accurate information as to the extent of the areas occupied by them. But even in the pre-IACS era, there would have been crofters and farmers who were well aware of the extent of the area(s) they rented and/or owned, and who would have had absolutely no reason not to state it accurately in their agricultural census returns, even leaving out of consideration what we suspect in practice was the somewhat remote theoretical possibility of incurring a criminal sanction for “knowingly or recklessly” furnishing “any information which is false in any material particular” in such a return: see section 81(2)(a) of the Agriculture Act 1947, to which we were referred by Senior Counsel for the Applicant.

[122] Whilst it is correct to say that the figures entered on the agricultural census returns for the areas of land rented or owned “had no impact on any subsidy or payment”, Junior Counsel for the Respondent was on less sure ground when he commented that the “important part was to get livestock figures correct because the payment was made on a headage basis”. The information asked for on the agricultural census return is gathered for statistical purposes only, and as such, the livestock figures supplied have no more bearing on any subsidy or payment than those for the areas of land rented or owned.

[123] It seems to us, in this regard, that each case ultimately will turn upon its own particular facts, and the amount of weight to be attached to such evidence will always be a matter for the judgment of the court: cf. Loudon v Hamilton 2011 SC 255 at paragraph [26]; J & S Wight Limited v McGowan and Others 2017 SLCR 66 at paragraphs [23]-[26]. Here, we consider that we have no warrant for holding either that the areas recorded in the Inspector’s Report in connection with the 1965 Scheme did not accurately reflect the understanding of the MacQueens as to the acreage of Dalmagarry Farm in 1966 or that the 1976 and subsequent agricultural census returns submitted on behalf of the firm of C.A. & E. M. MacQueen were not completed with all due care and attention in conformity with the legal obligations of the partners thereof.

The nature of the grazings rights on Dalmagarry Moor before World War II

[124] We do not doubt that the Dalmagarry Moor grazings have been an integral part of Dalmagarry Farm since the early part of the twentieth century, but that is not to say that they were possessed historically on the same basis as the principal part of the farm, lying mainly to the east of the railway line and the A9 public road. We consider that the grazing rights of the tenants of Dalmagarry Farm on Dalmagarry Moor were originally limited rights, which had to be exercised around the landlords’ shooting, rather than vice versa. The relative importance of the shooting and the grazing rights from the landlords’ perspective is well illustrated by a consideration of the income derived from those two activities, as vouched by the 1946 sales particulars, which gave an estimated pre-war annual value for the shooting of £510, compared with a combined annual value of £20 for the Dalmagarry and Invereen grazings. The income derived from the grazings was, in the overall scheme of things, de minimis, and confirms the view that this was a grouse moor first and a grazings second. The principal benefit to the landlords of the latter, back then, was not the rental income derived from that activity, but was rather the environmental benefit of the presence of sheep on the hill for part of the year, grazing down the heather and assisting in preventing it from becoming rank. The grazings would require to be operated in such a way as not to interfere with or impinge adversely on the shooting, and before the conferral of security of tenure on agricultural tenants in the immediate aftermath of World War II, a failure on the part of the grazings tenant to co-operate with the estate in connection therewith could have provoked the sanction of a refusal by the landlords to renew the following year. The 1946 sales particulars referred to the grazing rights being “at present let to Messrs. Andrew MacQueen and J. Dunbar on yearly tenancies”, a position which is consistent with the Minute of Agreement of 1936 having continued to run from year to year after the expiry of its stipulated seven years term on tacit relocation.

[125] Dalmagarry Moor changed hands twice within less than 18 months in 1945/46, and in the same period, that part of Dalmagarry Farm lying for the most part to the east of the A9 was also sold, resulting in the divided ownership situation commented upon earlier in this note. Security of tenure for agricultural tenants in Scotland was introduced by sections 6 and 7 of the Agriculture (Scotland) Act 1948 (“the 1948 Act”), with the agricultural holdings legislation, incorporating the 1948 Act changes, being consolidated the following year in the Agricultural Holdings (Scotland) Act 1949 (“the 1949 Act”). There was no evidence before the court as to how this change in the law impacted on the landlord and tenant relationship in respect of the Dalmagarry Moor grazings, but it seems to us almost inconceivable that it did not have some effect.

[126] We are in no doubt that in the period before World War II, the tenants of Dalmagarry Farm would have perceived their grazing rights on Dalmagarry Moor as qualitatively different from their rights in the core farm unit. We are sceptical of the Respondent’s characterisation of the historic position as one in which, in or about 1946, his grandfather Andrew MacQueen had exclusive grazing rights over a rigidly demarcated area, calculated to the nearest acre, of Dalmagarry Moor, and his neighbour, Mr Dunbar of Invereen, exclusive rights over another such area. Whilst we would accept that, in practice, the MacQueen sheep would, generally, be found towards the north end of the moor, and the Dunbar sheep towards the south end, and in times when sheep were profitable and labour was cheap, shepherding resources could be directed towards maintaining such a de facto division and encouraging the hefting of flocks to those tracts of land, we do not believe that there was any recognised de iure boundary line bisecting Dalmagarry Moor so far as their respective grazing rights were concerned. As we shall go on to explain, we think it is precisely because there never was any such recognised boundary line that, in the post-war period, uncertainty reigned as to the extent of the subjects of lease on Dalmagarry Moor.

[127] Evidence that there ever was a recognised boundary line dividing Dalmagarry Moor into two parts came principally from the Respondent and his wife, speaking to the steps they took to establish the boundaries of the subjects of lease at the time of the introduction of the map-based IACS regime in the early 1990s. IACS was an integral part of the changeover from an agricultural subsidy system where payment was based on production (in the case of livestock, on the basis of headage) to one in which payment was based on the area of land occupied and used by the claimant, creating an incentive for farmers to maximise the number of acres of eligible land that could be claimed against. We do not think it is any coincidence that the “degree of contention” about the extent of the MacQueen family’s grazing rights on Dalmagarry Moor, to which reference was made in Mr Whittle’s letter to Mr Glynne-Percy dated 21 December 1989, should have arisen at the time when farmers were gearing up for the introduction of the new system.

[128] The Respondent gave evidence that when he was required to submit maps detailing the land occupied by him for IACS purposes, he was so anxious to get his boundaries right that he enlisted the assistance of the now elderly Mr Dunbar, and that the two of them went up onto Dalmagarry Moor equipped with a map on which to plot the boundaries. The Respondent’s wife, Mrs Joan MacQueen, was quick to corroborate this account, claiming a frankly unlikely clarity of recollection about what would, at the time, have been an event of little moment, in a manner that seemed to us obviously to have been rehearsed. Whereas our general impression of the Respondent’s testimony was that he committed more sins of omission than of commission (i.e. it was more what he did not say than what he did say that caused us concern), this was the part of his evidence in respect of which we concluded that he strayed into positive untruth. None of this rang true. Had Mr Dunbar at this time still been a working farmer, sharing an unfenced hill boundary with the Respondent, it would have been entirely plausible for the two neighbours to have joined together to agree between themselves the line thereof, thereby avoiding the possibility of overlapping claims. But that was no longer the position. Mr Dunbar had relinquished his right to the grazings as long ago as from the end of November 1976, a fact that had been communicated to the Respondent’s parents in a letter from Mr Mackenzie dated 2 November 1976 [Production 73]. Indeed, it was narrated in that letter that it had been written at the request of Mrs Glynne-Percy “in the first instance just in case there was any possibility of your wishing to have a larger part of the hill before she considers offering it to any other party …” The MacQueens did not take up that offer, and as we understand the evidence, no other party came forward to do so before IACS became operational. Mr Dunbar thus no longer had any interest in disputing what area the Respondent claimed to occupy in the map he submitted to what was then DAFS for IACS purposes, and we do not consider it likely that the Respondent in such circumstances would have felt it necessary to seek out the guidance of Mr Dunbar in relation to such a matter.

[129] Additional factors that incline us to disbelieve this aspect of the Respondent’s testimony are that firstly, if there were an established shared boundary of, on the Respondent’s account, many decades standing, it would seem odd that the Respondent would have no record of it and require the reassurance of Mr Dunbar that he had got it right. Secondly, and more importantly, it transpires that the boundaries as supposedly agreed with Mr Dunbar, and as represented on the Respondent’s IACS map, correspond with neither the dog-leg line shown on the 1946 sales particulars plan nor with the evidence as to boundaries spoken to by the Respondent’s cousin Iain MacQueen. The members of the court, in the course of carrying out their inspection, were able to see how the discrepancies between the different purported boundary lines manifested themselves on the ground. The most striking was the Respondent’s straightening of the south-western boundary on his IACS map so as to take in a not insubstantial area (including a sheltered grassy gully with a stream) that plainly lay beyond the boundaries of Lot 18 on the 1946 sales particulars plan, unsurprisingly considering it was in 1946 part of the neighbouring Inverernie Estate which, according to the plan annexed and subscribed as relative to the 1946 Disposition, was in the ownership of a different proprietor. The area depicted on the Respondent’s IACS map took in more land at the western end of the dog leg, and marginally less at the east end, than did the supposed boundary between the Dalmagarry grazings and the Invereen grazings shown on the 1946 sales particulars plan. We consider that this level of inconsistency further diminishes our faith in the veracity of the testimony about the Respondent consulting the now late Mr Dunbar about the location of the boundary between their respective grazing areas.

[130] As we see it, the grazings rights enjoyed by Andrew MacQueen and Mr Dunbar over parts of Dalmagarry Moor back in the day were comparable to the rights of crofters having shares in common grazings. The availability of the Dalmagarry Moor grazings to Andrew MacQueen and Mr Dunbar enabled them to make better use of their in-bye land. Sheep could be released out onto Dalmagarry Moor to forage during the summer months, thereby freeing up their in-bye land and allowing the grass to grow for making into hay or silage, but the use to which they might put the Dalmagarry Moor grazings in that era would always be limited by the carrying capacity of the in-bye land that made up the core farm units. This explains why, when offered the opportunity to take on an additional area of land on Dalmagarry Moor upon the retirement of Mr Dunbar in 1976, the Respondent’s parents declined the offer, and indeed, the tone of Mr Mackenzie’s letter on behalf of the Tomatin Trustees in which the offer was made suggests that it was written in the expectation that this would be their response. There would be no point in the MacQueens taking on, and paying for, a larger area of hill grazing than was needed for the purposes of their existing flock, the number of sheep having been maintained at a similar level over several decades before Mr Dunbar’s retirement.

What can be taken from the evidence as to the contents of the marked up plan?

[131] Senior Counsel for the Applicant invited us to take from the reference, in the letter from Munro & Noble to Mrs Glynne-Percy dated 27 June 1977, to Mr Mackenzie having done “an excellent job” that, in the context of what was a binary choice between posited alternatives of areas of 400 acres or 1092 acres, he must have persuaded the MacQueens to endorse the smaller acreage. Junior Counsel for the Respondent, by contrast, cautioned us against placing any weight on what he characterised as the “flimsy, contrived and unreliable evidence taken from the conveyancing correspondence in 1977.”

[132] Whilst superficially appealing, we have come to the conclusion that the interpretation placed by Senior Counsel for the Applicant on the contents of the letter from Munro & Noble to Mrs Glynne-Percy dated 27 June 1977, reporting on the outcome of Mr Mackenzie’s Saturday visits to the MacQueens and Lord Macpherson, is misconceived. We do not believe that, in the context in which it was achieved, success for Mr Mackenzie’s initiative necessarily was measured by him getting the MacQueens to sign off on a 400 acres area rather than a 1092 acres area. As we have explained, the information gleaned from the 1977 conveyancing correspondence points to Mr Mackenzie attending at the home of the MacQueens with an unmarked plan and having them indicate on that plan the location and extent of the area over which they were asserting grazing rights. What constituted success for Mr Mackenzie, in our view, was that he obtained the assent of both the MacQueens and Lord Macpherson to the same area. It must be remembered that Mr Mackenzie was acting for neither the MacQueens nor Lord Macpherson in this endeavour: he was the emissary of the sellers, whose interest ultimately lay not in establishing any particular boundary line but rather in securing a consensus between the tenant and the prospective purchaser as to the extent of the subjects of lease that would enable settlement of the transaction to take place at full price and on schedule.

[133] From the perspective of the Tomatin Trustees and the beneficiaries of the Tomatin Trust as sellers, it was a matter essentially of indifference whether the subjects of lease extended to 400 acres or 1092 acres or some other acreage altogether, provided that their location and/or extent were not such as to either dissuade Lord Macpherson from going through with his purchase, or cause him to re-assess how much he was prepared to pay for the property. We have no direct evidence that Lord Macpherson would have baulked, and insisted on renegotiating the agreed purchase price, had Mr & Mrs MacQueen adhered at their meeting with Mr Mackenzie to the position that their tenancy extended over an area of 1092 acres of Dalmagarry Moor, but the sellers’ solicitor’s expression of concern that he might cannot be dismissed as a fact of no significance, and the purchasing solicitors’ refusal to accept Condition H in the qualified acceptance, with its proposed inclusion of the provision that “the tenant now states that his lease extends to 1092 acres or thereby and not 400 acres” does tend to confirm that the extent of the subjects of lease was an issue for Lord Macpherson.

[134] All that said, however, we do not consider that the approbation expressed in the letter from Munro & Noble to Mrs Glynne-Percy dated 27 June 1977 for the excellent job done by Mr Mackenzie in obtaining the assent of the MacQueens and Lord Macpherson to the same plan delimiting the subjects of lease by itself would entitle us to draw the conclusion that Mr Mackenzie returned to Inverness bearing a plan marked up to show the subjects of lease as having an area of 400 acres rather than any larger area. What may, however, be taken from this chapter of evidence is that in 1977, whilst they may have vacillated as between 400 acres and 1092 acres when asked by their landlords to confirm the extent of the subjects of lease, at no point did either Charles MacQueen or Mrs Eva MacQueen ever lay claim to having a tenancy over a part of Dalmagarry Moor that extended to well over 1700 acres.

[135] It is difficult to believe that had the MacQueens, at their meeting with Mr Mackenzie, asserted that their tenancy took in an area more than four times that of the 400 acres, and some 60% larger than the 1092 acres, that they on previous occasions had claimed, that this would not have provoked some reaction from either Mr Mackenzie or Lord Macpherson. An area corresponding to that shown on the Respondent’s IACS map, marked up on Mr Mackenzie’s plan, would at a glance have been appreciated by Lord Macpherson to extend over more than half of the entire subjects of sale, and potentially to impact on some of the most important grouse drives on the moor. It seems to us to be equally difficult to accept that the MacQueens, believing themselves to have a tenancy extending over such a large part of Dalmagarry Moor, could ever have laboured under the misapprehension that, as measured, it had an area of a mere 400 acres or even 1092 acres.

[136] The Respondent argues in his written submission that:

“The court should be extremely wary of imposing modern perspectives of mapping and area measurements on an exercise that was being undertaken in 1977. The case concerns an unfenced and rugged area of hill ground that would have been extremely difficult to accurately measure and quantify in 1977.”

We cannot accept that the Respondent’s father, who had farmed the land at Dalmagarry for so many years, was in 1977 unable to distinguish between a grazing area on Dalmagarry Moor extending over 400 acres and one extending over more than 1700 acres. The 688 acres of the owner-occupied part of Dalmagarry Farm, all but three fields of it situated on the opposite side of the railway line and the A9 from Dalmagarry Moor, most of it readily visible from a central vantage point by the railway bridge opposite the farmhouse, provides a simple visual comparator against which the area of the subjects of lease on Dalmagarry Moor might be assessed. If 400 acres, the area of the subjects of lease would be considerably smaller than the owner-occupied part; if 1092 acres, or a fortiori 1762 acres, the area of the subjects of lease would be much larger than the owner-occupied part. There is surely a very significant difference between being 140 acres out in an estimate of the extent of an unfenced and rugged 3000 acres expanse of hill ground (cf. the outcome of the re-measurement of Dalmagarry Moor before the sale to Lord Macpherson was concluded) and being out by a factor of more than four (cf. 400 acres and 1762 acres): a discrepancy on the magnitude of the latter scale cannot credibly be ascribed to simple error.

[137] The Inspector’s Report of 1966 records Dalmagarry Farm as extending to 1092 acres, consisting of 92 acres of arable land plus 1,000 acres of grass and heather rough grazing. The breakdown between arable land and rough grazing was a matter of some significance in the context of the 1965 Scheme because eligibility for inclusion depended on the holding having an area of between 20 and 125 acres of crops and grass exclusive of rough grazing. Thus, although the 1965 Scheme applied to, and the proposals made by the applicants were exclusively concerned with the management of, the arable land of Dalmagarry Farm, the breakdown of the overall area of Dalmagarry Farm between arable and rough grazing was a matter about which, in our view, the Inspector might be expected to, and clearly did, inquire.

The legal significance of the marked up plan

[138] The Applicant’s position after the completion of the evidence, as we understood it, came to be that either: (i) the plan marked up by the tenants and approved by the prospective purchaser on 25 June 1977 reflected what before that date was, and thereafter continued to be, the extent of the subjects of lease; or, if it did not, then (ii) the effect of parties agreeing the contents of the plan was to make it so for the future by dint of that agreement. In short, it was either confirmatory of a pre-existing agreement, or itself constitutive of a new agreement. The Respondent’s position on this chapter of the evidence, whilst laden with rhetorical flourish (“This case is flimsy in the extreme. It involves a contrived reading of the correspondence that invites the Court to ignore all of the other surrounding information about the grazings tenancy …”), is considerably less clear as to what, if anything, it is asking the court to make of the evidence provided by the contents of the 1977 conveyancing correspondence. It is contended at paragraph 56 of the written submission for the Respondent that the case for the Applicant:

“must logically depend on proving that (1) at some point after 1946 but before 1977, there was a drastic reduction in the scope or scale of the tenancy of the hill grazings; but (2) at some later point after 1977, the usage and possession of the hill grazings illegally reverted to the 1946 position without any formal agreement by the landlord.”

The Respondent argues that there “is not a shred of direct evidence to support such an inherently improbable case.” At paragraph 70 of the written submissions for the Respondent, it is then suggested that:

“All the Court can take from the [1977] correspondence is that there was some (perhaps unsurprising) confusion about the acreage that arose from the Agricultural Returns being completed wrongly, a plan was ultimately executed to resolve the issue, that plan is now lost, but on any view the Respondent and his predecessors have continued to use and possess a much larger area than 400 acres or 1092 acres after 1977, and the landlords have continued to accept rent from them between 1977 and 1995.”

[139] We shall discuss, at a later stage in this note, the Respondent’s broader critique of the Applicant’s case, as it is set out in the first of those quoted passages from his written submissions. So far as Junior Counsel for the Respondent’s exposition of what properly may be taken from the 1977 conveyancing correspondence is concerned, we consider that the contents of the second quoted passage are problematic in several important respects. If, as appears, the crux of the Respondent’s position is that he and his predecessors have had a tenancy extending over in excess of 1700 acres of Dalmagarry Moor since at least 1945 or 1946 (if not earlier), with no material changes having occurred in connection therewith from thence to the present day, how then, in 1977, could his parents even have toyed with the idea that the subjects of lease might be only 400 acres or 1092 acres in area when asked by the landlords’ agents to confirm the position? Against a settled history (on the Respondent’s account) of no change, why should there have been any confusion, still less “unsurprising confusion”, in connection therewith? It is precisely because there is evidence that the Respondent’s parents in 1966 represented that the total area of Dalmagarry Farm was 1092 acres, and then in 1977, having in the meantime purchased the 688 acres thereof lying for the most part to the east of the A9 from the Forestry Commission, that the part of Dalmagarry Farm remaining in tenancy had an area of 400 acres, that the inference might be drawn that the subjects of lease underwent such a reduction in scale within the timeframe posited by the Applicant.

[140] The problematic aspects of this tract of evidence for the Respondent do not stop there, however. It seems to us to be quite clear, on the evidence, that in 1977, the Respondent’s parents did commit to a plan illustrating the location and defining the extent of the subjects of lease tenanted by them, on the basis of which the Tomatin Trustees sold, and Lord Macpherson purchased, Dalmagarry Moor. Although the Respondent himself was aged only seventeen, and still at school, in 1977, he was already actively involved in the work on the farm, and he left school to work full time in the business in 1979. It is, in our view, inconceivable either that the Respondent was not aware of the events that culminated in the signing of the plan by his parents and its approval by Lord Macpherson on Saturday 25 June 1977, or that he was not at the time informed, or did not later become aware, of what the location and extent of the subjects of lease then were acknowledged or agreed to be. It is striking, therefore, and, we think, instructive, how non-committal the Respondent has been in his response to this evidence, which, as his own legal advisers have pointed out, goes to the root of the Applicant’s case. In his answer 3, in response to the Applicant’s extensive averments about the circumstances leading up to the obtaining of the marked up plan on that date, supported by documentary productions that were lodged with the court as long ago as 3 May 2018, the Respondent’s formal response was limited to:

“Believed to be true that in or about May 1977 Lord Macpherson of Drumoch[t]er made an offer to purchase Tomatin Moor. Believed to be true that on or about Saturday 25 June 1977, the Tomatin Trustees factor (Mr Angus Mackenzie) visited Mr & Mr MacQueen.”

The contents of the missives of sale are referred to for their terms, “beyond which no admission is made”, and all of the other averments are met with a general, “Quoad ultra denied.” It seems to us that the Respondent’s evident wish to pay a dead bat to all of this material shades into exhibiting a lack of candour, and tends strongly to confirm our more general impression that the Respondent’s preferred strategy, in the conduct of his defence to this application, was to say as little as possible about his own position until the Applicant had shown its hand.

[141] The Respondent, in answer 3, also averred, in the context of explaining how the figure of 400 acres “arose from a simple mistake as to the acreage being recorded by the MacQueens in the Agricultural Returns by the MacQueens”, that “The Respondent does not know how the figure of 1092 acres was obtained by or communicated to, the then Landlord.” Curiously, however, on 19 August 2019, the Respondent himself was in a position to lodge BHM’s letter to Charles MacQueen [Production 74] dated 24 February 1977 asking him “to confirm the acreage given to me by your wife yesterday evening, when I telephoned her, of 1,092 acres for the grazings which you rent from the Tomatin Estate Trust”, to which a handwritten note “answered March 3rd 1977 (400 ACRES)” had been appended in the bottom right hand corner. That letter provided precisely the information the Respondent, in his pleadings, had claimed to lack.

The legal implications of the loss of the marked up plan

[142] If, as the Respondent accepts, a plan was ultimately executed in 1977 by Charles MacQueen and Mrs Eva MacQueen and approved by the prospective new landlord, Lord Macpherson, to “resolve the issue” of the extent of the subjects of lease (which, of course, pre-supposes that there was at that time an issue to resolve), what follows from that, and what are the consequences of the subsequent loss of the plan? It was, before the stage of hearing parties’ closing submissions, unclear to us whether the Applicant was arguing that the significance of the plan was that it confirmed a pre-existing agreement, or that it was itself constitutive of a new agreement, as to the extent of the subjects of lease, which new agreement would govern the parties’ relationship going forward, irrespective of what the position may have been before the plan was agreed. In reply to questions posed by the members of the court, Senior Counsel indicated that so far as the Applicant was concerned, it did not matter: in other words, the Applicant was content to ride either one of those two horses. It was then put to Senior Counsel that if the Applicant were arguing that the actions of Charles MacQueen and Mrs Eva MacQueen and Lord Macpherson in marking up and approving the contents of the plan were constitutive of a new agreement between them as to the extent of the subjects of lease, then the subsequent loss of that plan surely meant that the Applicant would need, as a preliminary to the present application for declarator, to set up the missing plan by means of an action of proving the tenor.

[143] It was submitted on behalf of the Applicant that the missing plan could be set up ope exceptionis (by way of exception) in this Land Court process, but so far as the Applicant’s “constitutive of new agreement” argument is concerned, the missing plan is not merely an incidental part of the evidence in the case, but instead forms the very basis of one strand of the Applicant’s case, and as such, it would, in our view, require to be set up by means of an application to prove the tenor: see J. A. Maclaren, Court of Session Practice (1916) at page 781; David M. Walker, The Law of Civil Remedies in Scotland (1974) at page 1246. The Applicant’s fall-back position on that issue was to argue that, if that indeed be the case, then it would be competent now for the Land Court to entertain such a proceeding.

[144] Actions to prove the tenor of a missing document were formerly competent only in the Court of Session, but amongst the changes introduced by the Courts Reform (Scotland) Act 2014 was to extend the competence of the sheriff to proceedings for or in relation to proving the tenor (section 38(2)(h)). The argument that the tenor of the missing plan might be proved in proceedings before the Land Court rests on the terms of section 84(1) of the Agricultural Holdings (Scotland) Act 2003 (“the 2003 Act”). The 2003 Act, which implemented recommendations made in the Scottish Law Commission’s Report No. 178 on Jurisdictions under the Agricultural Holdings (Scotland) Acts, effected a general transfer of jurisdiction from the arbiter to the Land Court. It substituted a new section 60(1) of the 1991 Act, which provided that the Land Court “shall have jurisdiction to hear and determine any of the matters referred to in [section 60(2)] below.” Those matters were -

“(a) whether a tenancy of an agricultural holding in relation to which the 1991 Act applies exists or has been terminated;

(b) any question or difference between the landlord and tenant of such a holding arising out of the tenancy or in connection with the holding, whether such question or difference arises during the currency of or on or after the termination of the tenancy;

(c) any claim by the landlord or tenant of such a holding against the other which arises, under the 1991 Act or under any rule of law, custom or agreement, on or out of the termination of the tenancy (or part thereof);

(d) any other issue of fact or law relating to –

(i) a tenancy of such a holding or any other type of agricultural tenancy; or

(ii) agriculture,

which the landlord or tenant reasonably require to have resolved.”

[145] In Report No. 178, the Scottish Law Commission, at paragraph 6.84, had concluded that:

“Our proposed enlargement of the jurisdiction of the Land Court would make it necessary to extend and clarify the range of remedies that the Court may competently grant. The general principle should be that the Land Court should have power to grant any remedy that is required to give effect to the rights of the parties in any matter falling within its jurisdiction.”

This recommendation was duly implemented in section 84 (Power of Land Court to grant remedies, etc.) of the 2003 Act. Section 84(1) of the 2003 Act provides:

“Where the Land Court has by virtue of the 1991 Act or this Act determined any matter, it may, in relation to the rights of any party, make such order or grant such remedy as it considers appropriate and, in particular, it may make or grant (any or all)–

(a) a decree of interdict (including an interim decree);

(b) an order ad factum praestandum or an order of specific implement (including in either case an interim order);

(c) an order of specific restitution;

(d) an order of reduction or rectification;

(e) an order of removal or ejection (but not an interim order);

(f) an order for damages or other substitutionary redress;

(g) a declarator.”

[146] The Land Court thus may make the orders, and grant the remedies, provided for in section 84(1) of the 2003 Act where it has, by virtue of the 1991 Act or the 2003 Act, “determined any matter”, including those matters which are referred to in section 60(2) of the 1991 Act. Standing that the particular forms of order and remedy listed in paragraphs (a) – (g) conspicuously do not include proceedings to prove the tenor of a missing document, the issue becomes one of the scope of the words in section 84(1) of the 2003 Act that precede and introduce that list, namely “make such order or grant such remedy as it considers appropriate and, in particular, it may make or grant (any or all)–”. Does that then mean that, towards that end, the Land Court may have recourse to the full complement of legal remedies that are available in the ordinary courts, including any, such as proving the tenor, that have not expressly been mentioned in paragraphs (a) – (g)?

[147] Whilst it might be thought somewhat surprising that extending the jurisdiction of the sheriff court to include proving the tenor was thought to merit the inclusion in the legislation of an express statutory reference to that form of action, but extending the jurisdiction of the Land Court to do so did not, Lord Gill in Agricultural Tenancies, op. cit., at paragraph 73-01 considers that as a result of the 2003 Act, the Land Court “now has a general competence in relation to remedies and the power to grant numerous specific remedies.”

[148] Turning for assistance to linguistic canons of statutory construction, in Bennion on Statutory Interpretation (7th Ed., by Diggory Bailey and Luke Norbury, 2019), section 23.7 (Ejusdem generis principle: general term followed by specific terms) of the Code states that:

“The ejusdem generis principle is presumed not to apply where apparently general words are followed by narrower words suggesting a genus more limited than the initial general words, if taken by themselves, would indicate. The question of what is intended is, however, as always, one of the legislator’s intention.”

In other words, the ejusdem generis principle applies only to general words following words that are less general, and does not operate to limit the scope of initial general words that are followed by terms indicative of a narrower genus. In the case of section 84(1) of the 2003 Act, it is questionable whether the orders and remedies set out in paragraphs (a) – (g) of section 84(1) define a genus any more specific than the gamut of Scottish civil law remedies, and so the powers of the Land Court under section 84(1) of the 2003 Act to grant remedies arguably do extend to the making of orders proving the tenor of a missing document for the purpose of giving effect to determinations the Land Court has made by virtue of the 1991 Act or the 2003 Act.

[149] That is not the end of the story, however, because as Junior Counsel for the Respondent pointed out, the present application does not take the form of a proceeding to prove the tenor of a missing document, and the Applicant made no attempt to libel or lead evidence to establish the casus amissionis or accident whereby the agreed plan came to be lost or destroyed: Walker, ibid. It is well established that in order to prove the tenor of a missing document, a pursuer has to prove: (i) the execution of the document; (ii) its tenor; and (iii) the casus amissionis. In relation to (iii), where, as here in the case of the marked up plan, the missing document is not one of that type (e.g. a testamentary writing or a promissory note) where revocation or discharge may be signified by destruction, a “very general and slight proof” (cf. Promontoria (Henrico) Ltd v Friel [2020] CSIH 1 at paragraph [43]) may suffice.

[150] The argument that (whatever may have been the position before) the signing off of the plan by Charles MacQueen and Mrs Eva MacQueen and its approval by the prospective purchaser Lord Macpherson in 1977 was constitutive of a new agreement as to the extent of the subjects of lease, can proceed only on proof of what the now missing plan contained. For us to be able to uphold that argument, it would, in our view, accordingly be incumbent upon the Applicant to set up the missing plan by proving its tenor in appropriate proceedings. We are persuaded that the combined effect of section 60 of the 1991 Act and section 84 of the 2003 Act is to confer on the Land Court the power to grant such a remedy where any of the matters referred to in section 60(2) of the 1991 Act require to be determined, and we would not have been inclined to dismiss this strand of the Applicant’s case solely on the ground that the application was not in forma specifica (in the form specified) for an action to prove the tenor of the missing plan. In the event, however, this issue recedes in importance, because as we interpret the evidence, for reasons which we shall explain, it points to the actions of the parties thereto in the marking up of the plan as being intended to confirm the terms of an existing agreement rather than to constitute a new one.

Occupation beyond the boundaries agreed

[151] If the extent of the subjects of lease was agreed in 1977, or at some earlier date, and that agreement was to an area of 400 acres or 1092 acres or some area in between, what then would be the relevance of evidence that the Respondent subsequently used and possessed a much larger area, ostensibly in breach of what had been agreed? Would the fact that the landlords continued to accept rent from the tenant between 1977 and 1995 alter the position in respect of the extent of the subjects of lease, if payment was neither demanded nor tendered under reference to a specified area? It is, in our opinion, clear on the authorities that the mere fact that sheep belonging to the MacQueen family were not, in practice, confined to a particular area of Dalmagarry Moor would not of itself have the effect of varying the agreed extent of the subjects of lease. This was an unfenced tract of high moorland. Whilst Mr Dunbar made use of Dalmagarry Moor, the presence of his flock to the south end would tend to confine the MacQueen sheep to the northern end (albeit with some inevitable intermingling), the void created by his retirement (which was not filled by the letting of those grazing rights to another farmer) would encourage the MacQueen sheep to forage more widely. After Mr Dunbar retired, the MacQueens through the 1980s steadily increased stock numbers, like many hill farmers at that time taking advantage of a support system that was based on headage and thereby incentivised them to do so. The presence of a larger number of sheep on Dalmagarry Moor over the summer months would have the effect of causing the flock to disperse over a wider area, but provided that such increase in numbers did not adversely affect the shooting, the owners would have no incentive to object thereto: indeed quite the opposite, if the consequence of the removal of the Invereen sheep was to leave a substantial part of Dalmagarry Moor under-grazed, with the heather becoming rank.

[152] It was argued, on behalf of the Respondent, under reference to an observation of Lord Kyllachy in Mackay v Mclachlan (1899) 7 SLT 48, that the best evidence of what was covered, or was intended to be covered, by the lease in this case is evidence of occupation and use. That was expressly the case under the Minute of Agreement of 1936, in which the subjects of lease were identified only as “All and Whole the Farm of Dalmagarry at present occupied by and possessed by [Andrew Macqueen]”), leaving their extent to be defined by reference to actual occupation as at that date, but we do not consider that evidence of use by the tenant beyond agreed boundaries can, by itself, have the effect of extending those boundaries, and we do not accept that the case cited to us in this regard provides authority to contrary effect.

[153] In any event, the problems with such an argument, in a case involving an expanse of unfenced hill grazings, in respect of which possession is demonstrated by the presence of a fluctuating population of sheep, are that (i) it is in practice impossible to distinguish between authorised and unauthorised possession; and (ii) it would open the way to the extent of the subjects of lease themselves changing from time to time according to the numbers of sheep currently being maintained by the tenant, because the sheep would naturally travel further to forage as the pressure on the closer to hand grazing intensified.

The incident during Iain MacQueen’s testimony

[154] It was at the point in Mr MacQueen’s testimony when he was describing his understanding of the boundaries of the grazings area on Dalmagarry Moor pertaining to Dalmagarry Farm (and diverging in that testimony from the evidence previously given by the Respondent) that the Respondent was observed by the court to be gesticulating from his seated position in the row behind his Counsel and solicitor in what appeared to be an attempt to attract the attention of and influence the witness. Mr MacQueen himself, we should add, was addressing his answers to the members of the court and was oblivious to what was going on behind him. Challenged on his conduct, the Respondent’s immediate instinct was to deny that this was what he had been doing. In closing submissions, Junior Counsel for the Respondent, on instruction, submitted that if there had been movement on the part of the Respondent, it was not because he was trying to signal to Mr MacQueen. He also advanced, somewhat tentatively, the suggestion, the source of which, he indicated, was his instructing solicitor, that what the court may have observed, and mistakenly attributed to the Respondent, was the animated arm movements of Junior Counsel himself. We were not impressed by this submission, and the latter aspect of it was, to borrow a word that featured in Mr MacQueen’s own testimony, preposterous. The members of the court, during a key passage in the evidence of an important witness, were engaged in taking the fullest possible note of what Mr MacQueen had to say, and in consequence, had for some moments been looking down at their bench books. The Deputy Chairman had a clear line of sight to the Respondent when, looking up suddenly, he caught out the Respondent in the behaviour described. Had the Respondent simply acknowledged and apologised for his misjudgement there and then, we might have been inclined to pass over the incident without further comment, but instead he opted to “double down” and continue to deny what we saw with our own eyes. This helped cement our impression of the Respondent as someone whose pursuit of what he perceives to be in his own self-interest may be inclined to compromise his attitude to the truth.

Conclusions and disposal

[155] This was an unsatisfactory proof, and it has resulted in what we have no doubt the parties will consider to be a less than satisfactory outcome, in that although it disposes of the present application, it does not resolve completely the dispute between the parties. The Land Court prides itself on being a practical court, and it is for us a matter of regret that after a hearing that extended over six days, at considerable cost to the parties, we could not produce a decision that settled for the future not only the issue of the extent, but also the issue of the location, of the subjects of lease on Dalmagarry Moor of which the Applicant is the landlord and the Respondent the tenant. If the reaction of parties to our decision is indeed as we have anticipated, they may care to reflect that this outcome is a direct consequence of the tactical and strategic choices they themselves made in the course of contesting this litigation.

The Applicant’s case

[156] The Applicant at the outset of these proceedings periled its position on establishing that the Respondent’s tenancy extended over an area of 400 acres on Dalmagarry Moor as shown outlined and hatched in red on the plan lodged as Production 2. Whilst there was credible evidence before the court that the extent of the Respondent’s tenancy was so restricted – we are unable to accept that the 400 acres figure confirmed in writing in both numerals and words to the then landlord’s agents by the Respondent’s mother in her letter dated 3 March 1997 was plucked at random from the ether and was devoid of any factual foundation – what emerged at the hearing is that the particular 400 acres area depicted on Production 2 had no basis whatsoever in historical fact. It was, instead, a product of Mr Seaman’s invention. When tasked as to why he located it where he did, the only justification he could provide was the frankly somewhat spurious one that in proceeding up the hill in a block from the roadside, it followed the pattern of other hill grazings in the vicinity: such hill grazings could scarely have done anything else, if they were to be accessible to their respective graziers, and of course, that explanation left entirely open the critical issue of the length of its road frontage, which if there was a specified acreage such as 400 acres would dictate how far up onto Dalmagarry Moor the ensuing block would extend.

[157] The Applicant, at the eleventh hour, introduced by amendment an alternative crave for declarator that the extent of the tenancy on Dalmagarry Moor, if not 400 acres, was 1092 acres. The particular 1092 acres area outlined and hatched in blue on the plan [Production 126] produced with the Applicant’s minute of amendment was once again arbitrarily selected by Mr Seaman. In contrast to the 400 acres figure, which cannot, in our view, readily be dismissed as no more than a mistaken underestimate on the part of the Respondent’s parents as to the area of the hill grazings then tenanted by Charles MacQueen that, on the Respondent’s account, actually extended over more than 1700 acres, the 1092 acres area does indeed appear to have been put forward initially in error, and one of the many puzzles in this case is why, having been formally corrected by Mrs Eva MacQueen in her letter to Mr Hughes, that acreage was, reportedly, advanced a second time by the MacQueens before Mr Mackenzie succeeded in resolving the issue of the location (and consequently also by implication the extent) of the subjects of lease to the satisfaction of both them and their prospective new landlord, Lord Macpherson.

[158] The alternative cases which the Applicant came to court offering to prove were, then, both very narrowly focussed, and had, so far as where the areas of 400 acres and 1092 acres said to represent the subjects of lease were located, no basis in historical fact. The Applicant placed before the court a body of evidence that was obviously incomplete, and which begged as many questions as it answered. It produced a considerable quantity of copy correspondence pertaining to the sale of Dalmagarry Moor by the Tomatin Trustees to Lord Macpherson in 1977, but having assembled from that material a convincing account of the process by which Mr Mackenzie secured from Charles MacQueen and his wife and Lord Macpherson the marked up plan representing the boundaries of the subjects of lease, the Applicant made no attempt to explain what became of it after settlement of the transaction for the purposes of which it had been obtained. The Applicant was able also to produce a copy of Mr Whittle’s letter to Mr Glynne-Percy dated 21 December 1989, written in his capacity as agent for Lord Macpherson, which alluded to the events of 1977 when Lord Macpherson had purchased Dalmagarry Moor, and to the 400 acres figure, but which oddly contained no reference to the actual marked up plan itself, but neither the sender nor the recipient of that letter was called to give evidence, and we were left completely in the dark as to what response, if any, Mr Whittle’s letter elicited from Mr Glynne-Percy, and as to how, if at all, the matter was taken forward. The Applicant sought to found on statements in one form or another obtained from Mrs Ann Glynne-Percy, Lady Macpherson and Mr Tose, but those statements were riddled with factual errors, ambiguities and contradictions, and once again, none of those three individuals was made available to give evidence in person and expose themselves to cross-examination. Mr Bound and Mr Hodgson, two further potential witnesses to fact whose names did at least appear on the Applicant’s list of witnesses, were not called to give evidence. We were left with the distinct impression that the Applicant was decidedly selective in the potentially relevant available evidence that it chose to share with the court.

The Applicant’s post-evidential motion to amend its craves

[159] After the evidence had been completed, presumably having realised that neither of the positions the Applicant had advanced based on the contents of Mr Seaman’s two plans was any longer seriously maintainable, the Applicant moved to amend to break down its two craves into their constituent parts, so that, if, on the evidence, the court were to hold that the Applicant were the landlord, and the Respondent the tenant, of a 400 acres or a 1092 acres area, albeit not the particular area that the Applicant had specified, the Applicant could, as a fallback, move for declarator as to the extent of the subjects of lease without reference to their location. The Applicant’s motion was opposed, on the grounds that it came too late, and could in expanding the scope of the proceedings after proof had been led have operated to the possible prejudice of the Respondent. We were not persuaded that the Respondent would suffer any prejudice if the Applicant were to be permitted to so amend its craves. As the hearing progressed, it assumed the character of a contest between the parties’ competing acreages, both the Applicant and the Respondent tacitly acknowledging that they were not in a position to establish definitively the location of the boundaries of the areas for which they were contending. The Applicant’s amendment is reflective of how the proof was actually conducted, and so we have allowed it.

The Land Court’s powers under section 4 of the 1991 Act

[160] Senior Counsel for the Applicant, in the course of his closing submissions, referred us to the provisions of section 4 (written leases and the revision of certain leases) of the 1991 Act, which provides that:

“(1) Where in respect of the tenancy of an agricultural holding—

(a) there is not in force a lease in writing; or

(b) there is in force a lease in writing, being either—

(i) a lease entered into on or after 1 November 1948, or

(ii) a lease entered into before that date, the stipulated period of which has expired and which is being continued in force by tacit relocation,

but such lease contains no provision for one or more of the matters specified in Schedule 1 to this Act or contains a provision inconsistent with that Schedule or with section 5 [Fixed Equipment and Insurance Premiums] of this Act,

either party may give notice in writing to the other requesting him to enter into a lease in writing containing, as the case may be, provision for all of the matters specified in Schedule 1 to this Act, or provision which is consistent with that Schedule or with section 5 of this Act; and if within the period of six months after the giving of such notice no such lease has been concluded, the terms of the tenancy shall be referred to the Land Court.

(2) On a reference under subsection (1) above, the Land Court shall in its determination specify the terms of the existing tenancy and, insofar as those terms do not make provision for all of the matters specified in Schedule 1 to this Act or make provision inconsistent with that Schedule or with section 5 of this Act, make such provision for those matters as appears to the Land Court to be reasonable.”

[161] Section 4(4) of the 1991 Act provides that the determination of the Land Court under this section “shall have effect as if the terms and provisions specified and made therein were contained in an agreement in writing between the landlord and the tenant, having effect as from the making of the determination or from such later date as the determination may specify”. Senior Counsel pointed out that paragraph 2 of Schedule 1 [PROVISIONS REQUIRED IN LEASES] to the 1991 Act is in the terms “Particulars of the holding with sufficient description, by reference to a map or plan, of the fields and other parcels of land comprised therein to identify the extent of the holding.” He submitted that it would be open to us, in exercise of the discretion conferred on us by the statutory power, effectively to impose a solution to the problem of the location and extent of the subjects of lease upon the parties, and it seemed to us at one point in his submissions that he was leaning towards inviting us to do so in this process. He did not press this argument in the face of the court’s undisguised reluctance to entertain it, on the related bases that:

(i) section 4 prescribes a formal notice procedure to be followed by parties before the terms of the tenancy may be referred to the Land Court for a determination, which had not been followed in this case; and

(ii) the proceedings following on a section 4(1) reference may well have taken a quite different course to that of this application, resulting in the potential for prejudice to the Respondent as the other party thereto.

[162] We would observe, in passing, that the proposition that, in a situation such as this, in which the parties have evinced so clearly in formal legal proceedings the absence of any consensus in idem between them as to one of the four cardinal elements of a contract of lease, namely the subjects, the court might, by exercise of the power conferred by section 4(2), determine the boundaries of the subjects of lease by reference to the criterion of reasonableness, initially struck us as a somewhat startling one, although we could see that a strictly literal reading of paragraph 2 of Schedule 1 would seem to point to that outcome. It might also be mentioned in this regard that in the comparable context of crofting law, we are expressly empowered by section 53A of the Crofting (Scotland) Act 1993 (“the 1993 Act”), where an application has been made to the Land Court under section 53(1)(c) of the 1993 Act to determine a question as to the boundaries of a croft or of any pasture or grazing land a right in which forms part of the croft, and the evidence available to us is insufficient to enable any boundary to be clearly determined, to declare the boundary to be that which, in all the circumstances, we consider “appropriate”. Senior Counsel was unable, on the day, to refer us to any previous case in which the Land Court had exercised the section 4(2) power in circumstances analogous to those pertaining here, and until we have the benefit of hearing full submissions on the point in an application in which we have been formally invited to exercise such a power, we would wish to reserve our opinion on the issue of the proper scope and combined effect of section 4 of and paragraph 2 of Schedule 1 to the 1991 Act.

The Respondent’s case

[163] The Respondent’s strategy, in this litigation, was to play his cards close to his chest, not revealing what he held until the Applicant had shown its hand. Senior Counsel for the Applicant’s characterisation of the Respondent as cagey in his testimony, as we previously have noted, was entirely apt, and that word sums up his entire approach to this dispute as to the extent of the subjects of lease on Dalmagarry Moor, which had been simmering over a period of decades without coming to boiling point until now. We infer that the Respondent was, until an advanced stage of these proceedings, concerned as to what evidence the Applicant would be in a position to adduce in support of its 400 acres figure, and it was only when it became obvious to him that the Applicant had no trump card to play in this regard, that he fleshed out his previously extremely sketchily delineated position, introducing into the process a quantity of historic documentation relevant, or at the very least, potentially relevant to the issue at the heart of this dispute, which had not previously featured in any of his dealings with the Applicant or its predecessors in title. The fact that the Respondent could, on 19 August 2019, produce for the first time from his repositories such significant items as the Minutes of Agreement of 1936 and 1948, although over a year earlier he had been able to draw from his family archive and lodge minor, and essentially unrevealing, correspondence from the early 1960s and the early 1970s about rent reviews [Productions 38-39], leaves us wondering what other relevant historic documentation the Respondent may hold but has opted not to share with us in this process. That he could also, on 19 August 2019, lodge items such as the accounts of the firm of CA and JT MacQueen dated 28 May 1952 confirms that the MacQueen family are not in the habit of disposing of old paperwork. Once more, at the close of the Respondent’s proof, we were left with a powerful sense that we had not been favoured with the whole story, and that the Respondent may know far more about matters such as the source of the 400 acres figure and what his parents signed up to in 1977 than he was prepared to admit to the court.

[164] Our civil justice system is adversarial rather than inquisitorial in nature. The only case that the Respondent was required to meet was the one set out in the application, and he was free to respond to that case as expansively or as restrictively as he chose. In the absence of a court order ordaining him to do so, it was not incumbent upon him to produce documentation held by him that might compromise his preferred approach to defending the application. That said, however, his chosen litigation strategy, of volunteering as little information as possible until as late in the day as possible, and only committing himself to a fully developed position once the weaknesses of the Applicant’s competing position had been exposed, came at a cost to him in terms of our overall assessment of his credibility. The Respondent impressed us as a shrewd, calculating and hard-headed individual, whose performance in the witness box was, for the most part, tightly controlled. There was little that felt spontaneous about the answers he gave in response to the questions he was asked: we formed the view that he had carefully worked out in advance the points he wanted to get across, and that he was determined to remain “on message” at all times, meeting any questions for which he did not have a ready answer prepared with a neutral and non-committal response. We doubted the veracity of his testimony at a number of key points in the evidence, most notably in his account of the steps he took to ascertain the boundaries of the hill grazings in advance of the introduction of IACS and his protestations of ignorance about what lay behind the reference in Mr Whittle’s letter to Mr Glynne-Percy dated 21 December 1989 to the “degree of contention” that had arisen about the extent of the subjects of lease.

[165] It will be recalled that what we have termed the Respondent’s broader critique of the Applicant’s case postulated that:

“(i) At some point after 1946 but before 1977, there was a drastic reduction in the scope or scale of the tenancy of the hill grazings; but

(ii) At some later point after 1977, the usage and possession of the hill grazings illegally reverted to the 1946 position without any formal agreement by the landlord.”

[166] We have already explained why we do not accept that, before 1946, what the Respondent’s predecessors as tenant had was a secure tenancy over a precisely delineated area or specified acreage for their exclusive use. We take issue also with the Respondent’s analysis of the Applicant’s position as necessarily entailing that, subsequent to 1977, the usage and possession of the hill grazings “illegally reverted to the 1946 position” without any “formal agreement” by the landlord. We take it that by “illegally”, what the Respondent really means is in breach of whatever may have been (on this hypothesis) agreed between the parties to the lease between 1946 and 1977 to effect such a reduction, but the flaw in that argument, perhaps signalled by the interposition of the word “formal” before the word “agreement” in the Respondent’s written submission, is that a failure on the part of a landlord to object to the fact that his tenant’s sheep are straying beyond the agreed boundaries of an unfenced tract of hill grazings would not, by itself, have the effect of altering these boundaries and consequently also the measured extent of the subjects of lease. In the circumstances of the present case, the landlords, after Mr Dunbar of Invereen Farm had relinquished his grazings rights, would have little or no practical reason for seeking to confine the Dalmagarry Farm sheep to the north end of Dalmagarry Moor: indeed their interests were better served by the Dalmagarry Farm sheep ranging further out over the moor at a low stocking density than by being kept at a high stocking density within a smaller area, to the potential detriment of the habitat for grouse within that area. It is instructive to note that what in due course was to provoke discord in the landlord and tenant relationship was not how far out over the moor the Dalmagarry Farm sheep were ranging per se, but was rather that they were present in much greater numbers than previously and were overly concentrated in particular areas, resulting in over grazing in places and perceived harm to the landlords’ sporting interests.

[167] All that said, however, the Respondent’s analysis of the Applicant’s case is essentially correct: it does indeed logically depend on proving that there was a change in the nature and the terms of the tenancy, so far as concerning the extent of the subjects of lease, at some point after 1946 and before (or during) 1977. In sharp contrast, the Respondent’s case rests on the central proposition that nothing changed in the nature and terms of the tenancy, either between those two dates or as a result of the dealings that took place between the Respondent’s parents, the sellers’ agents and Lord Macpherson in 1977.

[168] The Respondent’s “nothing changed” argument, as it was set out in his pleadings, does not, in our assessment, having heard the totality of the evidence, stand up to scrutiny. We have flagged up previously the obvious tension which exists between: (i) the Respondent’s insistence that the boundaries of the subjects of lease were well established, well known to his forebears, and had remained unchanged since 1945 or 1946; and (ii) the lack of consistency in the boundaries thereof as depicted on the four critical maps upon which the Respondent founded, together with his parents’ uncertainty as to the extent of the subjects of lease in 1977, that left them seemingly unable to distinguish between a tenanted area of 400 acres and a tenanted area of more than 1700 acres. When the discrepancies between the four maps were put to him in cross-examination, the Respondent changed his position, contending that whilst the boundaries may have changed over time, this was of no moment, because the overall areas remained much of a muchness. No explanation was proffered by him as to how such modifications of the boundaries came about.

[169] We are strongly inclined to think, on the evidence we heard and the inferences we consider legitimately may be drawn from that evidence, that what lies behind his parents’ supposed “confusion” as to the location of the boundaries is that it was not until sometime after the end of World War II that the concept of the neighbouring tenants of the hill grazings on Dalmagarry Moor having defined areas for their exclusive use first gained currency. Prior to that date, as the manner in which they are described in the 1946 sales particulars suggests, this was, in our opinion, a shared hill, in respect of which there was no formally recognised boundary line dividing the Dalmagarry and the Invereen grazings. The Minute of Agreement of 1936 made no attempt to define the subjects of lease through the medium of either a verbal description or by reference to a plan; what was being let was the Dalmagarry grazings “at present occupied and possessed” by the MacQueens. “[A]t present occupied and possessed”, in this context, we consider, referred less to a specific area or acreage on Dalmagarry Moor, and more to the long established, if unwritten, calendar and pattern of usage that had, over decades, enabled the shooting interests of the landlords and the grazing interests of the tenants to co-exist harmoniously.

[170] Before the introduction of security of tenure for agricultural tenants, and whilst the 1936 Minute of Agreement was running on tacit relocation, the landlords possessed the sanction of being able to refuse to renew the grazing lease the following year if the tenant deviated from the established pattern of usage and took to operating the grazings in a manner that adversely affected the shooting. Thus, if the tenant of the time had vastly increased the number of sheep he released onto Dalmagarry Moor and extended the period of the year during which they were present thereon, and the landlords had objected, the choice for the tenant would resolve itself into one of either backing down and reverting to the status quo ante, or finding alternative summer grazings for his sheep. The stock numbers recorded in the accounts of the firm CA & JT MacQueen dated 28 May 1952 [Production 103] and of CA MacQueen dated 28 May 1953 [Production 104] vouch for the size of the Dalmagarry Farm flock at those dates, and other oral and documentary evidence before the court confirmed that sheep numbers, and by extension the amount of the use made by the MacQueens of the Dalmagarry Moor grazings, did not alter materially until the mid- to late- 1980s, when, with the Respondent taking on a more prominent role in the management of Dalmagarry Farm, they were substantially increased, ultimately leading to tensions with the landlord, Lord Macpherson, and then, after Dalmagarry Moor changed hands, to a period during which the new owners resorted to the expedient of entering into a series of management agreements with the MacQueens with a view to effecting an overall reduction in the number of their sheep present on Dalmagarry Moor and their removal during particular periods of the year.

[171] An obvious counter to the Respondent’s “nothing changed” argument is that very early in the (1946-1977) period to which he refers, the introduction of security of tenure for tenants radically altered the legal framework within which landlord and tenant relationships in the agricultural sector operated. Security of tenure for agricultural tenants passed into law in the same year that Andrew MacQueen died, and only shortly after Dalmagarry Moor had changed hands twice in quick succession. There would have been ample opportunity for discussions to have taken place between the new owners and the tenant about the implications of the new law, and for an agreement to have been entered into that saw the tenant’s hitherto somewhat inchoate and geographically ill-defined “grazing rights” exchanged for the defined rights of an agricultural tenant over a smaller, but better defined area. Another possibility is that, in the discussions that followed upon the instigation of one of the rent reviews, the parties agreed that Charles MacQueen henceforth would be rented on a specified area, reflective of the fact that, at the time, this was the part of Dalmagarry Moor he was in practice most actively using. We cannot see how parties and their agents could have been, in the early 1960s and early 1970s, contemplating the instigation of statutory rent review procedures, and proposing new rental amounts by way of compromise on the basis that the figure proposed was less than what would be obtainable on a commercial basis, unless both sides were working from a shared conception of what was being rented. We keep coming back to the incontestable facts that Charles MacQueen and his wife, in 1977, represented to the landlords’ agents that the tenancy was over a materially smaller area than that which the Respondent now claims, and that the area of 400 acres put forward by them was not a figure that emerged from nowhere in 1977, but was one that had traceable antecedents going back at least as far as the mid-1960s.

[172] But for the repeated invocation by members of the MacQueen family, in a number of different contexts, of the 400 acres figure, the historical evidence could have lent itself to the interpretation that before 1977, the successive landlords and tenants had never felt the need to formalise the long-enduring arrangement that had regulated the grazing on Dalmagarry Moor. In other words, notwithstanding that correspondence had passed between parties and their agents in the early 1960s and early 1970s in which passing (and perhaps unconsidered) reference was made to the agricultural holdings legislation in the context of rent review, at no point in the period between 1946 and 1977 did the owners of Dalmagarry Moor and the tenant (and subsequently owner) of Dalmagarry Farm either explicitly discuss the implications for their existing arrangement of the new statutory regime or together identify a specified part of Dalmagarry Moor within which exercise of the grazings rights was at least notionally to be confined. For so long as Charles MacQueen stocked the hill grazings on Dalmagarry Moor in conformity with the pattern of usage that had been established under his father, which the owners had been happy to accommodate over a period of decades, there may have been no pressing need to have such a discussion.

[173] The sale of Dalmagarry Moor by the Tomatin Trustees to Lord Macpherson in 1977 resurrected the issue of over what part of Dalmagarry Moor the rights of Charles MacQueen as grazings tenant extended. Whilst the sellers did not dispute that Charles MacQueen possessed such rights, they seem to have suffered a failure of institutional memory as to how they first came into being: it is notable that nowhere within the 1977 conveyancing correspondence are those rights referred to in the context of the agricultural holdings legislation and the protections of the tenant’s position afforded by that legislation. We think it likely that the reason for this omission is that at that time, the sellers, and perhaps also the prospective purchaser and his agents, had not foreclosed on the possibility that, if push were ever to come to shove, it might yet successfully be argued that any grazing let enjoyed by Charles MacQueen was merely seasonal and did not benefit from security of tenure. Mr Dunbar of Invereen had surrendered his grazings rights on Dalmagarry Moor the previous autumn, and Charles MacQueen, having been given first refusal by the Tomatin Trustees, declined their offer to take them on; they were not relet to any other party. In the autumn of 1976, then, Charles MacQueen self-evidently perceived no need for more extensive grazing rights over Dalmagarry Moor than he already possessed. The withdrawal of the Invereen flock from Dalmagarry Moor on Mr Dunbar’s retirement effected the removal of a natural constraint that hitherto had tended to keep the Dalmagarry Farm sheep to a particular part of Dalmagarry Moor, and afforded them more opportunity to wander further afield, if so minded: it is likely also, with the sale of Dalmagarry Moor in the offing, to have alerted the Tomatin Trustees and their agents to the need to confirm the nature and extent of Charles MacQueen’s grazing rights thereon, before the estate was put on the market.

[174] In 1977, Charles MacQueen and the prospective purchaser of Dalmagarry Moor, Lord Macpherson, both signified their approval of a marked up plan depicting the area over which the former’s grazing rights extended. We express it thus because the 1977 conveyancing correspondence contains no analysis of the nature of those grazing rights, and the language employed is not that of a secure lease within the ambit of the agricultural holdings legislation, although that is of no significance for present purposes because it is no longer a matter of dispute in these proceedings that what Charles MacQueen possessed in 1977 was a secure agricultural lease over part of Dalmagarry Moor to which his son, the Respondent, has succeeded. Neither party to this litigation can tell us now how the subjects of lease were depicted in the marked up plan, because as long ago as 1989, the fact that it ever existed would appear to have been lost sight of by the very person, the prospective purchaser Lord Macpherson, for whose benefit it was at some trouble obtained, and the Respondent, both of whose parents actually signed the marked up plan, professes now to know nothing about it.

[175] It is noteworthy that it was no part of the Respondent’s argument at any stage in these proceedings that esto such a plan was so marked up in 1977, it would have shown the subjects of lease as extending over an area of in excess of 1700 acres, if not in precise conformity with the contents of his IACS map, then at least broadly commensurate therewith, which leads us to believe that the Respondent is, at the very least, not confident that were the marked up plan ever to come to light, it would support the position he adopted in his answers to the application. Accepting, as we do, that the Respondent’s parents (or more particularly, the Respondent’s father, given that it appears now to be accepted by both sides that the tenancy was held by him as an individual) and the prospective new landlord, Lord Macpherson, settled the issue of the extent of the subjects of lease as between them in 1977, it seems to us highly unlikely, on any view of the evidence, that the subjects of lease as depicted on the marked up plan extended over an area materially greater than the 1092 acres that, so far as Mr Mackenzie was aware, before he went to see them, represented the upper limit of what Charles MacQueen and Mrs Eva MacQueen might be claiming as the area held in tenancy. Had the MacQueens, at their meeting with Mr Mackenzie on 25 June 1977, for the first time contended for an area materially greater than 1092 acres, and Lord Macpherson agreed to that, we would have expected that unanticipated turn of events at least to have been mentioned in the letter from Munro & Noble to their client Mrs Glynne-Percy dated 27 June 1977.

[176] We have concluded, on the basis of the inferences that we think fairly can be drawn from the contents of the 1977 conveyancing correspondence over which we pored during the course of the hearing, that in approving the marked up plan as they did, the Respondent’s father and mother on the one hand and Lord Macpherson on the other did not conceive of themselves as entering into a new agreement as to the extent of the subjects of lease that innovated on or replaced the agreement that, prior to that date, had regulated the tenant/landlord relationship, but merely as confirming the extent of the subjects of lease as they existed prior to Dalmagarry Moor being put up for sale by the Tomatin Trustees. The sequence of events that can be reassembled from the contents of the 1977 conveyancing correspondence is not suggestive of a process of negotiation between those parties with a view to settling the issue of the extent of the subjects of lease going forward, but of the MacQueens confirming to Mr Mackenzie their finally settled position thereon, and Lord Macpherson acknowledging that he was content to proceed with the purchase on that basis. But what that extent was, the contents of the 1977 conveyancing correspondence, in the absence of a copy of the critical marked up plan, do not reveal.

[177] Proceeding upon the basis that in marking up the plan as they did in 1977, Charles MacQueen and Mrs Eva MacQueen were honestly representing what they understood or believed to be the true historical position (and all of the Respondent’s witnesses spoke to Charles MacQueen as a man who was scrupulously honest in his dealings), we have no means of knowing upon what factual basis that understanding or belief rested. The evidence we heard does not explain how what we consider originally were rights held in common with the farmer at Invereen to graze sheep on Dalmagarry Moor were translated into an exclusive right to graze a particular portion thereof, but we are persuaded, on the balance of probabilities, that this is indeed what must have occurred. The curious disappearance of the marked up plan (we heard no evidence whatsoever from either side as to what happened to it after it was delivered by Mr Mackenzie to the sellers’ solicitor, just as neither side could tell us what it contained) invites the suspicion that its contents may subsequently have ceased to suit one or other of the parties thereto, or even conceivably both of them: it is, we suppose, possible that Lord Macpherson may have come to repent of what he approved in 1977, or Charles MacQueen and Mrs Eva MacQueen of what they marked up on the plan, so giving either or both of them an incentive to forget it ever existed, or indeed facilitate its disappearance, but this can only be a matter for speculation rather than the stuff of findings in fact. What we do know, however, from the Respondent’s own testimony, is that in the biannual agricultural census returns completed by the Respondent and signed off on by one or other of his parents in the capacity as a partner in the firm of C A MacQueen and E M MacQueen, Farmers, for a number of years after 25 June 1977, the extent of the rented part of Dalmagarry Farm was stated to be the hectare equivalent of 400 acres or thereby. This is the best evidence available to us as to the extent of the subjects of lease as they were represented on the marked up plan. We think it most improbable that, so soon after the events of 25 June 1977, when the issue of the extent of the subjects of lease had been placed centre stage, the Respondent and his parents would have continued to enter, in the agricultural census returns, the hectare equivalent of 400 acres or thereby, unless that figure reflected their understanding of the true historical position.

[178] Whilst there was no evidence before the court that, so far as the pattern of usage of the Dalmagarry Moor grazings by the MacQueen family was concerned, anything changed on the ground between 1946 and 1977, it is clear that from the mid- to late- 1980s onwards, much did change. The Respondent greatly increased sheep numbers and made much more extensive use of the Dalmagarry Moor grazings than his grandfather and his father had ever done, thereby disrupting the equilibrium that had been maintained between the sporting and the farming interests over the better part of a century. He engineered a situation in which both his landlord and the public purse, through the MMP, paid him to effect a reduction in those sheep numbers, and when the money stream from public funds ran dry, he looked to his landlord to make up the shortfall. The refusal of the Applicant to agree to the Respondent’s demands in this regard led to an impasse, and it fell to Mr Lundberg finally to grasp the nettle that the Applicant’s two immediate predecessors as landlord had conspicuously failed to do, by confronting and taking active steps to attempt to resolve for the future the longstanding controversy about the nature and extent of the Respondent’s grazing rights on Dalmagarry Moor. The result of that initiative was the present litigation.

[179] The reluctance of both landlords and tenant over many years to bring matters to a head can, with the benefit of hindsight, be seen as a portent of what was to be revealed at the hearing, namely that neither party was in a position to put forward an incontrovertible case in favour of its or his preferred outcome. The cases advanced by both the Applicant and the Respondent were attended by significant lacunae in the evidence adduced in their support: at times, in compiling this note, we felt as if we had been tasked with completing a large and complicated jigsaw puzzle from which important pieces had been either inadvertently lost or perhaps deliberately removed from the box. The pieces of the jigsaw that remain defy any attempt to fit them together so as to create an entirely coherent picture. We are, ultimately, persuaded that the preponderance of the evidence points to something having happened in the period after 1946 and before 1977 to reconstitute the landlord and tenant relationship in respect of the Dalmagarry Moor grazings and to define (or redefine) the subjects of lease. The evidence we heard does not disclose when and in what circumstances that change took place, but we further believe that the now missing plan marked up by Charles MacQueen and Mrs Eva MacQueen on 25 June 1977 confirmed that change. Dalmagarry Moor has, since the end of World War II, passed through the hands of a succession of owners, all with their own different land agents and solicitors. The one constant in the history of Dalmagarry Moor over the course of that period has been the involvement of the MacQueen family in the working life of the moor. It was to the MacQueens that the owners and their agents turned in 1977 when Dalmagarry Moor was being put up for sale once again and the owners had lost track of the nature and extent of the MacQueens’ rights in connection therewith. In such circumstances, we consider that the evidence that the MacQueens themselves represented the subjects of lease in their agricultural census returns both before and after to be the hectare equivalent of 400 acres or thereby is the most reliable available to us in this case. If, however, contrary to the assumption made in paragraph [177] above, Charles MacQueen and his wife were not, in marking up the plan in 1977, representing what they understood or believed to be the true historical position, but were merely indicating the part of Dalmagarry Moor of which they made the most use, and for which they were content to pay rent under the new owner, we suspect that the end result would in all likelihood be very similar. It is not in dispute between the parties that the lease, the existence of which we have declared, is held under the Agricultural Holdings (Scotland) Act 1991, and is operating by tacit relocation from 28 May each year to 27 May the following year, at a rent of £150 per annum, all as set out in part (c) of the Applicant’s first crave (as amended).

[180] The testimony of the Respondent’s cousin, Iain MacQueen, who spoke to his understanding of the subjects of lease not in terms of a measured or estimated acreage but rather in terms of topography, by reference to the watershed of the facing hill opposite the main part of the Dalmagarry Farm, provided us with what we considered, particularly after we had returned from carrying out our site inspection and had had the opportunity to study the position on the ground, to be the most plausible account from any witness we heard of where the boundaries of the subjects of lease were likely to be situated, because they were more consonant with how Dalmagarry Moor has in practice been grazed over the decades by the MacQueen sheep, than those contended for by either Mr Seaman on his two plans or by the Respondent on his IACS map. Against that, however, his evidence was consistent with neither the Applicant’s nor the Respondent’s respective positions, and neither side attempted, in the course of the hearing, to pin it down to either a plottable line or a measurable area that could form the basis of a formal finding in fact. It also cannot readily be reconciled with the body of evidence that exists to the effect that the Respondent’s parents in the past stated the subjects of lease to have a much smaller area than a boundary line that followed the watershed would bring out.

[181] The upshot of all of this is that we have granted declarator in terms of parts (a) and (c) of the first crave of the application, but have made no positive findings in fact delimiting the location of the subjects of lease on Dalmagarry Moor of which the Applicant is the landlord and the Respondent the tenant. On the approach we have taken to the evidence, no issue arises for us as to the proper scope and application of the decision of the Court of Session in G v Glasgow City Council, op.cit, to which we were referred by Junior Counsel for the Respondent. The Respondent failed to make out, on the balance of probabilities, the case he came to court offering to prove, namely that he is successor-in-title to a 1991 Act tenancy “for hill grazings extending to 1700 acres or thereby at the North end of Tomatin Moor”. Even had we not, ultimately, been persuaded to sustain in any part either of the Applicant’s two craves, we could not have endorsed the Respondent’s competing position as it developed over the course of the proceedings. Accordingly, we expressly would have declined Junior Counsel for the Respondent’s invitation to make a finding in fact to that effect.

Expenses

[182] We have, in our Order, formally reserved all questions of expenses. We have appointed parties to lodge any motions they may wish to make in relation to expenses, together with their submissions in support thereof, within 42 days of the date of intimation of this Order and Note. We have allowed a longer period than the 21 or 28 days that customarily are allowed for this purpose to take account of the exigencies of the current Covid-19 lockdown situation, which has impacted severely on the work of the court and contributed to the delay in the issue of this decision.