Scottish Court of Session Decisions

By feu-disposition, dated August 12, 1856, Alexander Turner, one of the defenders in this action, disponed to the pursuer William Hamilton a piece of ground and certain houses thereon. The right to minerals was reserved by the disposition to Turner as superior, and he became bound to indemnify the disponee for any damage which might be occasioned by working them. The disposition contained, however, this qualification, that if at any time the minerals should be let, the lessee and not the superior should be liable for such damage, and the superior engaged so to bind the lessee. Prior to the pursuer's disposition by nearly two years, by a lease dated 25th April and 10th May 1854, these minerals had been let to the Monkland Iron and Steel Company, the other defenders in this action, and under this lease they became liable to pay all damages which might be occasioned by the working of the minerals, both above and below ground. The pursuer now brought an action of damages against both of the defenders on the allegation that in working the minerals no proper supports had been left for the surface ground, and thereby great damage had been occasioned to his houses and buildings. The case having been heard on the question of the relevancy, the Lord Ordinary dismissed the action as against Turner, but found it relevant as against the other defenders. In the note to his interlocutor, after narrating the facts of the case, his Lordship goes on to say—“The Lord Ordinary has had no difficulty in holding this action relevant against the mineral tenants. He considers it is as undoubted that every mineral tenant is bound so to conduct his workings as to afford sufficient support to the surface, and whatever has been lawfully placed thereon anterior to the working taking place. He is as much bound to do so as the proprietor of an under storey is bound so to conduct any operation on his property as not to injure the support afforded to the storey above.”

But the pursuer also insists in his claim against his superior Mr Turner as responsible for the acts of his tenants, the Monkland Iron and Steel Company. The Lord Ordinary is of opinion that no sufficient ground has been laid for his claim in the present record. Generally speaking, a landlord is not bound for a wrongful act committed by his tenant. If, indeed, it shall appear, either indirectly or by necessary implication, that the lease was granted with the object of the tenant's working wrongfully, and to the possible injury of the surface proprietor, the landlord will be liable as an accessory to the wrong, being in that case held to act through the tenant acting without his authority.

Page: 53↓

This was the ground of the decision in the case of Bald v. Earl of Mar, cited to the Lord Ordinary. In the present case the Lord Ordinary can perceive nothing in the least empowering the tenant to work otherwise than legally; and the tenant's wrongful act, if such occurred, can therefore only bind himself.

But the Lord Ordinary is further of opinion that the claim against Mr Turner is excluded by the terms of the feu-disposition. He considers it to be matter of express contract binding both upon superior and vassal in every after transmission of the right, that any claim of damages for wrongful working shall not lie against the superiors, in the case in which he has let the reserved minerals, but against the tenant only. The superior's only obligation is to take his tenant bound in his lease to answer to such claim. The Lord Ordinary is of opinion that the superior has sufficiently fulfilled the obligation. It is true that the lease to the Monkland Iron and Steel Company is prior in date to the feu-disposition, but this appears to the Lord Ordinary in nowise to alter the legal condition of things. It affords, indeed, the argument to the superior that no lease was afterwards granted without the stipulated condition, for none was afterwards granted at all. In fair construction, however, the guarantee by the superior to the vassal applied to previous tenants as well as subsequent. It appears to the Lord Ordinary that the Monkland Company has been sufficiently taken bound to answer to such a claim. The Lord Ordinary has found them liable to do so, the claim of course being always supported by sufficient proof.”