Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 IMPLIED OBLIGATION.

John, Duke of Argyle,
v.
James Erskine of Alva

Date: 15 November 1786

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[Dict. 6573.]

President. When a proprietor reserves to himself so strong a right, he reserves, tacitly, the power of working; but still, however, so as not to do any thing emulously to the hurt of the vassal or tenant. In tacks, a reservation of coal implies a power of working without paying damages. There is no prescription here: I would interpret dubious words by possession; but here the damage paid seems to have been for the houses, and so it is limited to the small payment of two horse-loads of coal in the week.

Braxfield. This question has never been tried before; and the reason is, that clauses are thrown into feu-contracts to prevent any such question. When a superior excepts minerals, this implies a power of working; for, without that, the reservation would be nothing. Why may not the proprietor work his mine as freely as the tenant may sow and reap his crop? Should a superior wantonly set down pits, he would be checked. The only question is as to possession. Had an uniform sum been paid for damages, I should have presumed a right by some separate bargain.

Eskgrove. It is plain that the original feu was without any reservation: the reservation has been thrown in, one knows not why, into a precept of clare constat. The power of working, without payment of damages, can hardly be inferred from the general tenor of the clause; and this the more especially, because it appears that something has been wont to be paid in the name of damages to the vassal.

Henderland. The superior could not have stipulated for damages to be paid to himself.—[This obscure.] In the case of Hamilton of Fala, the tenant had right to the whole surface.

On the 15th November 1786, “The Lords declared in terms of the libel.”

Act. W. Craig, Ilay Campbell. Alt. J. and H. Erskine. Reporter, Hailes.

Diss. Eskgrove, Ankerville, Rockville.