Original acquisition

Question 1

Lord Advocate v University of Aberdeen & Budge

Answer 1

1. The case of the treasure in Shetland
2. It is likely the treasure was buried there around about 1200 years ago
3. There were various claims made on this treasure
4. The University of Aberdeen and the farmer who owned the land made a claim
5. Likewise, the Crown, through the Lord Advocate, claimed ownership
6. It was held that there is no special rule for discovered treasure in Shetland
7. Rather, the normal rules of Scotland apply to Shetland
8. Even though the treasure was buried before 1468, when Shetland became part of Scotland, nonetheless it was Scots law that applied, and not the old udal law which would have applied prior to that
9. The court held that the normal rule applied
10. The treasure had been abandoned and would not be reclaimed, and so it belonged to the Crown

Question 2

Mackenzie v Maclean

Answer 2

1. Involved a hotel in Stornoway which received a defective order of several hundred cans of beer
2. They were defective because a number of the cans were damaged
3. The hotel got in contact with the brewery and told them to sort through the cans and leave the defective ones in a skip
4. A crowd soon gathered and with the aid of vehicles, they proceeded to remove the cans
5. The question was whether the people in that crowd were now guilty of theft
6. Technically, the defective cans belonged to the Crown as they had been abandoned
7. The Sheriff held that there was no theft here
8. Although there was the actus reus for theft (taking away property belonging to someone else), there was an absence of dishonesty
9. There was no mens rea (intention to steal)
10. The crowd was not found guilty
11. If you find lost or abandoned property, you can’t generally just take it as there is a risk you could be found guilty of theft

Question 3

Scottish Environmental Protection Agency v Joint Liquidators of the Scottish Coal Company Ltd

Answer 3

1. The land in question had been previously used for coal mining
2. There were certain environmental obligations on the owner
3. The owner wanted to abandon the land to make it ownerless, or alternatively, to force the Crown to take ownership of it
4. It was held in this case that it is not possible to abandon land in Scotland
5. You can only abandon corporeal moveables

Question 4

Valentine v Kennedy

Answer 4

1. This case involved a group of rainbow trout which were kept in a stank
2. The rainbow trout escaped the stank and ended up in a local river where they were subsequently caught by fishermen
3. The question for the court was whether the fishermen were guilty of theft
4. If the rainbow trout were wild animals, the answer would be no
5. They would have regained natural liberty and simply be open to occupancy
6. The court held that this was a case of theft
7. Unlike brown trout and sea trout, rainbow trout are not an indigenous species to Scotland
8. They are not, therefore, wild animals in Scotland
9. The case suggests that it is unlikely that non-native species could ever be wild animals in Scotland

Question 5

Shetland Islands Council v BP Petroleum Development Ltd

Answer 5

1. This case concerned land in the North mainland of Shetland
2. After oil was discovered, BP reached an informal agreement with the Shetland Islands Council (SIC)
3. The basis of this agreement would be that BP would be entitled to build an oil terminal on land belong to the SIC
4. On the basis of this informal agreement, BP went ahead and built an oil terminal
5. A number of years later, the parties decided to try and formalise the agreement
6. They disagreed over how the rent for the land should be calculated
7. BP argued that the rent payable should be the rent for the piece of land
8. By contrast, the SIC argued that since BP had gone ahead and built an oil terminal on the land, the oil terminal had now acceded to the land and become part of the land
9. BP pointed to some documentation which had been produced which suggested that the parties had intended the oil terminal to remain in the property of BP, even though it had been built on the council’s land
10. The parties hadn’t intended accession to operate and therefore the oil terminal should remain the property of BP
11. The court held that essentially the parties’ intentions were irrelevant
12. The oil terminal belonged to the SIC and BP were now simply tenants of the property
13. As a result, the SIC were entitled to ask for higher rent

Question 6

Van Lynden v Gilchrist

Answer 6

1. Concerned a wooden holiday chalet which had been built on land leased to a subtenant of the landlord
2. Under the agreement between the subtenant and the landlord, the subtenant was entitled to take away the wooden chalet at the end of the sublease
3. This was what had been agreed by the parties
4. On the other hand, the landlord argued that because the wooden chalet had been built on the land, it had therefore acceded
5. As such, the landlord was entitled to prevent the removal of the chalet
6. The court held that accession had taken place
7. It takes place objectively and is not subject to the intention of the parties
8. The court did find that in this case, the subtenant had a right of severance
9. This allowed the subtenant to reverse the accession by removing the wooden chalet from the land (this means that the permanency element was likely not met)

Question 7

Brand’s Trs v Brand’s Trs

Answer 7

1. Involved a lease of land for mining
2. The tenant made certain improvements to the land to allow the operation of the mine to go ahead
3. The tenant argued that the improvements that he had made to the land should not accede to the land
4. The House of Lords rejected the tenant’s argument
5. The law of accession is unitary
6. Once the relevant requirements for accession are met, accession simply takes place
7. If the tenant wanted to retain any sort of interest in the land, the way to do that is by expressly providing for a right of severance or a right of removal
8. You cannot prevent accession from operating, but you can provide for a right of severance

Question 8

Christie v Smith’s Exr

Answer 8

1. Mr Smith was a farmer in Aberdeenshire
2. He erected a summer house in his garden beside the farmhouse
3. The ground underneath it had been levelled
4. The summer house was placed in a position which allowed it to fill a gap between the end wall of the farmhouse and the garden wall
5. There was no actual attachment between the summer house and the ground underneath
6. It simply rested on its own weight
7. Mr Smith subsequently entered into negotiations to sell the farm to Mr Christie
8. There was no indication that the summer house was not part of the land Mr Smith was selling
9. After missives were concluded, Mr Smith advised Mr Christie that he was taking the summer house with him
10. Mr Christie raised an action in the Sheriff court asking for the summer house to be returned to its former position
11. He argued that it had acceded to the land and had therefore been included in the missives
12. Mr Smith died before the case was called, which is why it is against his executor
13. At first instance, the Sheriff held that the house was still moveable property and hadn’t acceded to the land (essentially because it had not attached to the land and was still resting on its own weight and because it had been removed successfully)
14. However, on appeal to the Second Division of the Inner House, it was held that the summer house had in fact acceded to the land
15. The erection of a structure weighing two tonnes was sufficient to indicate attachment, at least in a practical sense
16. Mrs Smith had to return the summer house to its original position within four weeks

Question 9

Elitestone Ltd v Morris

Answer 9

1. This English case reached a similar result
2. The case involved a bungalow (instead of a summerhouse) which also rested on its own weight
3. The House of Lords similarly found that although the bungalow wasn’t physically attached to the land, it had still acceded to the land
4. Here there was an additional factor that the bungalow could not be removed without damaging the bungalow

Question 10

Scottish Discount Co Ltd v Blin

Answer 10

1. Unless element (1) (physical union) yields a decisive result, it is always necessary to consider the other elements

Question 11

Christie v Smith’s Exr

Answer 11

1. The summer house was partly being used to fill a gap between the farmhouse and the garden wall

Question 12

Assessor for Fife v Hodgson

Answer 12

1. Involved very heavy storage heaters in a house
2. Although it was found that these storage heaters would have been quite easy to remove (the physical attachment was not decisive), they had been sold as part of a more elaborate heating system
3. That heating system could not function if the storage heaters had not been in place
4. It was held that the heaters were designed for the comfortable enjoyment of the house, and, because of their functional subordination, they had acceded to the house

Question 13

Cochrane v Stevenson

Answer 13

1. Mrs Stevenson purchased a mansion house
2. The question was whether certain expensive paintings which were hanging in the mansion house were part of the property she bought
3. Paintings can be fairly easily removed from the wall and functionally paintings can be enjoyed on their own account
4. Mrs Stevenson argued that one of the paintings served the practical purpose of filling a gap in the panelling and covering the bare stone wall behind it
5. The Inner House rejected this argument and held that there was no functional subordination
6. The paintings had not acceded to the mansion house

Question 14

Leigh v Taylor

Answer 14

1. This English case involved tapestries (instead of paintings) and reached a similar result
2. The tapestries had not acceded to the house

Question 15

Brand’s Trs v Brand’s Trs

Answer 15

1. The case where improvements were made to land so the tenant could use it for mining purposes
2. The improvements were functionally subordinate to the land and had therefore acceded

Question 16

Brand’s Trs v Brand’s Trs

Answer 16

1. The intention of the parties was that the mining equipment would be taken away again at the end of the lease, but it was intended to stay there for the whole duration of the lease and only be removed at the end
2. This was sufficient permanency for accession to operate

Question 17

Leigh v Taylor

Answer 17

1. The English case where tapestries hung from a building wall
2. There was no special adaption to secure the tapestries
3. This indicated that the tapestries were not a permanent addition to the wall
4. The physical attachment was not greater than is strictly necessary to secure the article
5. They were fittings and not fixtures

Question 18

Howie’s Trs v McLay

Answer 18

1. Five lace looms were installed in a factory
2. Looms are set up for the purposes of producing lace
3. The looms were attached to a large plate, which rested on the factory floor on its own weight
4. The upper part of the looms had been attached to the roof
5. There had been mutual special adaptation between the accessory and the principal
6. This therefore indicated that there was a degree of permanency (or at least of quasi-permanency)
7. The looms acceded and became fixtures rather than fittings

Question 19

Scottish Discount Co Ltd v Blin

Answer 19

1. This case seems to suggest that in certain cases the deemed intention of a particular class of annexers can be relevant
2. The reasoning is probably wrong
3. The better view is that intention is not relevant at all when it comes to whether an item actually accedes or not
4. Here we want to distinguish the actual (subjective) intention of particular annexers and the deemed (objective) intention of annexers of a particular class
5. The latter has been argued to be relevant

Question 20

Brand’s Trs v Brand’s Trs

Answer 20

1. Equipment was installed on land in order to help the tenant to mine the land
2. This was a trade fixture as the equipment was intended to serve the tenant’s purposes on the propery
3. They acceded to the land but the tenant had a right to remove the equipment at the end of the lease (he had a right of severance)

Question 21

Tanner v E Moss Ltd

Answer 21

1. A pharmacy was leased to a company for 15 years
2. At the end of the lease, the tenants essentially left the shop completely empty
3. The landlord sought damages, arguing that the tenants had taken things they had not been entitled to take
4. The case confirmed that tenants can remove fixtures up until the tenancy comes to an end and also for a short period afterwards
5. In this case it was held that four months was a reasonable period in the circumstances

Question 22

Khan v Minister of Law and Order

Answer 22

1. This is a South African case but is instructive
2. Two halves of two different cars were joined together in order to create a new car
3. The front of one car was attached to the back of another
4. The issue was that one of the halves was from a stolen car
5. The owner of the stolen car wanted half the car back
6. Which half was the principal and which was the accessory?
7. If the stolen half was the principal, it still belonged to the previous owner as the other half acceded to it
8. By contrast, if it was the non-stolen half that was the principal, then the stolen half of the car would accede to the non-stolen part of the car and the whole new car would belong to the owner of the non-stolen part
9. It was held by the court that the stolen half was the principal because it was the largest part

Question 23

Boskabelle Ltd v Laird

Answer 23

1. Boskabelle purchased three fields from Mr Laird (who was a farmer)
2. The missives for the three fields had only been concluded after Mr Laird had already sown the fields with wheat
3. After ownership was transferred, Boskabelle argued that they had now acquired the wheat that was growing on the land too
4. By contrast, Laird argued that the wheat had not acceded as it was an industrial growing crop
5. Mr Laird went back on to the land and harvested the wheat
6. Boskabelle sued Laird for damages reflecting the value of the crops
7. The court found in Laird’s favour
8. The wheat was still his and had not acceded

Question 24

Shilliday v Smith

Answer 24

1. A cohabitant made improvements to her partner’s house in contemplation of a future marriage
2. Upon the break-up of the relationship, she was entitled to recover the value of her partner’s enrichment

Question 25

McDonald v Provan (of Scotland Street) Ltd

Answer 25

1. Very similar to the South African Khan case 2. A scoundrel had obtained two cars, of which one was stolen 3. The scoundrel wielded the front half of one of the vehicles to the back half of the other vehicle 4. This new car was sold on to the defenders, who then in turn sold the can on to the pursuer (Mr McDonald) 5. Subsequently, the police seized the stolen property 6. McDonald sued Provan for breach of warrandice 7. He argued that Provan did not have title to the car and therefore could not transfer it to him 8. Provan’s defence was that the new car was a new species, separate from the two half cars that went into it 9. When this new car was created, an original title was created in the manufacturer and therefore it was no longer stolen property 10. The court agreed that this would be a case of specification, provided that the scoundrel who joined the two halves together had been in good faith 11. According to the court, a new species was created 12. It seems odd to treat the creation of a whole car from two half cars like a new species 13. The South African case probably provides a more appropriate way to deal with these sorts of cases

Question 26

Wylie & Lochhead v Mitchell

Answer 26

1. Involved the creation of a funeral hearse from scratch out of raw materials 2. The funeral directors (Wylie and Lochead) contracted with a coachbuilder for the creation of the hearse 3. Because the hearse was created from raw materials, it was the creation of a new species 4. In this case, specification did not operate because there was an agreement between the parties as to who would own the final product 5. Specification is a default doctrine: it applies where the question of ownership has not been addressed by the parties

Question 27

Kinloch Damph Ltd v Nordvik Salmon Farms Ltd

Answer 27

1. Involved a fish farm and a clever attempt to defeat a retention of title clause 2. Smolt were supplied to the fish farm 3. There was a retention of title clause in favour of the supplier 4. The retention of title clause stated that the salmon would not be owned by the fish farm until payment had been made 5. However, the salmon farm went insolvent, and its creditors wanted to attach the salmon and sell it as the main asset owned by the salmon farm 6. The creditors argued that specification had taken place 7. The development of smolt (baby salmon) into adult fish involved the coming into being of a new type of thing 8. This argument was rejected by the court 9. By definition, smolt and salmon are the same species 10. As a result, the adult salmon still belonged to the supplier

Question 28

International Banking Corporation v Ferguson Shaw & Sons

Answer 28

1. The defenders used oil to manufacture lard 2. They did not realise that the oil actually belonged to the pursuers 3. It was held that the lard was a new species and that it was an irreversible process 4. Specification had operated and the defenders acquired an original title to the lard 5. The pursuer’s title to their oil was extinguished 6. The pursuers were entitled to claim the value of the oil from the defenders