The proprietors of grounds wherein there are mines, are entitled to grants thereof from the Crown.
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The Earl of Hopeton applied, by petition, to the Commissioners of Treasury for a grant of mines and minerals within his lands in Scotland, in virtue of an act of Parliament made for that purpose in the year 1592, which they referred to the Barons of Exchequer, who reported in the words of the act, That it is lawful to his Majesty to make such grant to his subjects in Scotland, and he had always been in use to it.
The Earl of Hopeton insisted in a declarator before the Court of Session, against the Officers of State, that he had right to a grant, which they did not deny, but alleged it was improper to bring an action, and the same could not be sustained, unless it were that the said right was refused.
Observed, That in petitory actions it was indeed necessary to allege a wrong done, or a right withheld, but not in declarators.
The Lords repelled the objection to the pursuer's declarator, and found he had a right in terras of the act 1592, and that it was not lawful for the Crown to work the said mines, or set them in feu or tack to any other person.
