( Ante, vol. viii, p. 341.)
Subject_Landlord and Tenant — Mineral Lease — Sterility — Reduction — Clause of Interruption.
In a case where a mineral tenant sought to reduce his lease, which contained periodical breaks, on the ground of sterility — held (affirming the judgment of the First Division of the Court of Session) (1) that sterility was not a ground of reduction at common law unless the subject-matter was non-existent; (2) that by the clause of interruption in the lease the parties had themselves provided a remedy.
This was an appeal from a judgment of the First Division. The action was raised by the appellant, who was the lessee of the minerals on the estate of Baberton, in order to reduce the lease, on the ground that the freestone with which these lands had been represented to abound was in such small quantities that it could not be worked to profit. The First Division held that the appellant had undertaken all the risk of failure of the minerals by protecting himself with breaks in the lease, and he ought to have resorted to the remedy which he had provided for himself.
The pursuer appealed.
Mr Pearson, Q.C., and Mr Taylor Innes, for him.
Solicitor-General ( Jessel) and Mr Glasse, Q.C., for the respondents.
Affirmed, with costs.
Solicitors: Agents for Appellant— Lindsay & Paterson, W.S.
Agents for Respondents— Hamilton, Kinnear, & Beatson, W.S.