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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hamilton v. Turner and Others (ante, p. 52) [1866] ScotLR 1_238 (26 March 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0238.html
Cite as: [1866] SLR 1_238, [1866] ScotLR 1_238
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SCOTTISH_SLR_Court_of_Session
Page: 238↓
Court of Session Inner House First Division.
v.
(ante, p. 52).
Facts:
In an action by a feuar directed against his superior, who was proprietor of the minerals in the ground feued, and also against the mineral tenants, for damages caused by alleged wrongful working of the minerals, proof allowed before answer as to the liability of both or either of the defenders.
This is an action of damages for injuries caused to property by mineral workings. The pursuer holds a feu-right of his property from Mr Dennistoun, the predecessor of the defender, Mr Turner of Barbauchlaw, which was granted on 12th August 1865. The superior reserved to himself the property of the minerals—“I and my foresaids paying to my said disponees and their foresaids all damages the subjects belonging to them may sustain in and through my working or taking away the same.” This qualification was added—“But declaring always that should said minerals be let by me or my foresaids, my said disponees and their foresaids shall have recourse against the lessee thereof for all damages which may be occasioned by the working thereof, and not against me or my foresaids, farther than that I and my foresaids shall be bound to oblige our tenants to settle said damages with our said disponees and their foresaids in manner above mentioned.”
The other defenders, the Monkland Iron and Steel Company and their trustees, are tenants of the minerals lying beneath the pursuer's subjects, by virtue of a lease granted by Mr Dennistoun in 1854—two years prior to the date of the pursuer's feu. By the lease, it is stipulated that the tenants “shall annually satisfy and pay all damages done by their operations, whether above or below ground;” and it also contains this clause—“Farther, the said second parties (the tenants) bind and oblige themselves and their foresaids to free and relieve the said first party (the superior) of all claims and demands whatsoever which may be made against him and his foresaids by the tenants of said lands, arising in any way out of the operations of the said second parties in working, raising, storing, carrying away, or disposing of the minerals hereby let.”
The pursuer avers that the minerals “have been improperly and wrongfully dug out and removed, without proper and sufficient support being left for the surface ground and land, and the said house and buildings thereon, whereby the pursuer's said subjects have sunk and given way, and his said houses and buildings have been weakened, the walls cracked and rent, the door-posts and window lintels broken, and the whole structure has been totally and permanently injured, and there is fear of the same falling.”
The Lord Ordinary (Kinloch) held the action relevant as against the mineral tenants, but dismissed it as against Mr Turner, on the grounds (1) that he was not responsible for his tenants; and (2) that the claim was excluded by the terms of the pursuer's feu-charter. The mineral tenants reclaimed,
Page: 239↓
and so did the pursuer. In the course of the argument the following authorities were cited:— Bald's Trustees v. Alloa Colliery Company ( 16 D. 870); Caledonian Railway Company v. Sprot ( 16 D. 559, 19 D., H.L. 3, and 2 Macq. 449); Harris v. Ryding ( 12 Q. B. 739); and Humphries v. Brogden ( 5 Mee. and Welby 60). The case was argued last week, and advised to-day. The interlocutor of the Lord Ordinary was unanimously recalled, and a proof before answer allowed as to both defenders.
The Lord President said—The pursuer of this action says he has a claim against the superior and the mineral tenants, or at least against one or other of them. It appears that the feu was granted in the year 1856 in favour of a Mr Livingstone, and that in 1857 it was acquired by the pursuer. The feu had been granted by Mr Dennistoun, and his successor, as superior, is the defender Mr Turner. Mr Turner says there is no claim against him, because he, or rather his author, stipulated in the feu-right that there should be no claim against him, but only against the mineral tenants; and all that his author obliged himself to do was to take the tenants bound to settle the damages. The mineral tenants say they came under no obligation, and that there was no restriction on their mode of working the minerals; and farther, that in 1854, when they leased them, there were no houses on the surface. At common law I apprehend that a proprietor of minerals is bound to respect the rights of the proprietor of the surface, and is not entitled to work them out so as to injure these rights. That is the law irrespective of stipulation. There is a stipulation in regard to this matter in the feu-right which was obviously granted as a building feu, for it contains obligations on the feuar to build houses so as to secure the payment of the feu-duty. The clause on which the superior founds occurs in the clause reserving the minerals. The pursuer says that it puts him under no obligation. I do not understand the superior to say that he has given literal compliance with it, and there may be a question also as to whether the superior's obligation in the feu-contract referred only to future leases, or embraced also this one which had been already granted. We do not yet know the nature of the working which was permitted to the mineral tenant, whether it was the long wall system, or what it was. In short, until we have all the circumstances before us, I do not see how it would be proper at this stage to assoilzie Mr Turner. Then in regard to the mineral tenants they say they only bound themselves to pay damage caused to the ground if it remained in its natural state, and without the houses being built upon it. I am not satisfied that they should be assoilzied either until the facts are ascertained. There is here an allegation of damage to land as well as to houses, irrespective of buildings; but even in regard to buildings there may be a question as to the tenant's liability. I am not at present prepared to say that a mineral tenant is entitled to pull down by his operations houses on the surface, although these have been erected after the date of his lease.
The other Judges concurred; and the Court therefore recalled the interlocutor of the Lord Ordinary, and of consent allowed a proof before answer of the averments of all the parties.
Counsel for Pursuer— Mr Pattison and Mr J. G. Smith. Agent— Mr James Paris, S.S.C.
Counsel for Defender Turner— Mr Gordon and Mr Gifford, Agents— Messrs Maconochie & Hare, W.S.
Counsel for Monkland Company— Mr Clark and Mr Watson. Agents— Messrs Davidson & Syme, W.S.