In a tack of coal, the privilege of charring is not implied.
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In the year 1799, Alexander Heriot let to Andrew Faulds the whole coal in his property of Maryston, in the vicinity of Glasgow. The lease was to endure till the coal should be entirely wrought out; and very ample privileges, of sinking pits, erecting engines, &c. were granted to the lessee; but no express power of charring coal was contained in the tack. The lessee, on the other hand, was to take the sole risk of making a search for the coal.
Faulds having, at very considerable expense, discovered a seam of coal, and erected machinery, proceeded to raise it, and reduce it to the state of char, by burning it in large heaps near the mouth of the pit, for the purpose of supplying the Clyde Iron Company with that article. To this operation Herriot objected, as a nuisance to his house and garden, in the vicinity ; and having applied to the Sheriff, he obtained an interdict.
The case having been brought before the Court of Session, the Lords (14th June, 1803,) found the lessee entitled to char, chiefly, as it appeared, on account of the very broad and extensive nature of the right granted by the lease, without recognising any right at common law.
But afterwards, their Lordships, (20th December, 1803,) upon advising a reclaiming petition, with answers, altered their interlocutor, and remitted the cause simpliciter to the Sheriff. On this occasion, it seemed to be the opinion of the Court, that in no case could the privilege of charring be exercised by a tenant, contrary to his landlord’s inclination, unless there was an express permission in the lease.
And a reclaiming petition for Faulds was refused, without answers.
Lord Ordinary, Craig,Act. Dickson.Agent, C. Oliphant, W. S.Alt. A.Bell.Agent, R. Cathcart, W.S.Clerk, Menzies.
Fac. Coll. No. 141. p. 319.
