Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TACK.
Subject_3 An Heritor may search for Coal, notwithstanding the lands were let without any reservation to that effect.

Thomas Smith
v.
Thomas Hamilton of Falla

Date: 21 June 1768

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, IV. p. 307; Dictionary, 15,266.]

Monboddo. If the proprietor has a right to work coal, he need not reserve it. There is nothing in the several reservations which was not ab ante implied; quœ dubitationis tollendœ causa contractibus inseruntur jure communi non derogant. Were it otherwise, writers of deeds would have the making of the law, by their inserting clauses wherever they are pleased to think there is any ambiguity in the law.

Barjarg. Where the damage done by working coal is incompatible with the use of the farm, the proprietor is not at liberty to work coal.

Justice-Clerk. This is a point of great consequence. Mines must remain with the landholder. If not leased, the reservation is implied. When a probability of working coal occurs, parties will make a special reservation; but very often mines and quarries cast up, of which the parties, when entering into the lease, had no suspicion. It is admitted, that in a large farm the landholder may work the coal. Why not in smaller? We cannot draw the line. The law secures the interest of the tenant by providing an adequate recompense for the damage occasioned by working the mines and quarries.

Gardenston. If the proprietor has right to the coal, he must have access to it.

Coalston. The tenant has right to the surface; the proprietor to every thing besides the surface. Coal, lime, minerals are all under one rule. In the case of the Commonty of Riddingwood, the Duke of Hamilton was found to have right to the whole coal, although the commonty itself was subject to division.

President. Unusquisque rei suœ moderator ac arbiter. Landholders may give up their right; and, by the general practice, there are reservations deliberately made. The case of Colquhoun, mentioned by Stair, does not come up to this case. When a man limits his own property, he cannot deprive the superficiary of his right. Damages will not do. If the master has neglected to reserve his right, he must blame himself for the consequences.

Auchinleck. This case is difficult and new. When a man feus out lands with the privilege of pasturing upon a common, the right of property remains with him, and he may set down pits for stone, coal, or other minerals. Most feus were originally no more than grants to those already tenants. Can the proprietor's right be less in leases than in feus? Will you debar him during a temporary right, while he is not debarred during a perpetual right.

On the 21st June 1768, the Lords found the heritor has right to search and put down sinks for coal in the lands set in tack, upon satisfying the tenant for the damage which may be thereby incurred. Adhering to the interlocutor of Lord Pitfour.

Act. D. Rae. Alt. R. Blair.

Diss. Alemore, Barjarg, President.