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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hamilton v. Turner and Another [1867] ScotLR 4_202 (19 July 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0202.html
Cite as: [1867] SLR 4_202, [1867] ScotLR 4_202
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SCOTTISH_SLR_Court_of_Session
Page: 202↓
Court of Session.
v.
( Ante, vol, i, pp. 52, 338.)
Facts:
A party holding a feu-right of property in a mineral district brought an action against the superior and his mineral tenant for damages on account of injury to buildings on the feu by reason of underground working. A proof was led. Held (1) that the superior was liable, and (dub. Lord Deas) that his liability was entirely ex contractu; (2) (diss. Lord Curriehill) that the mineral tenant was also liable, and (dub. Lord Deas) that his liability was entirely ex delicto.
This was an action of damages for injury caused to property by mineral workings, and was directed against the superior of the ground and the mineral tenants.
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 1856. 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 working or taking away the same … 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 Monkland Iron Company had become tenants of the minerals lying beneath the pursuer's subjects under a lease from Mr Dennistoun, dated in 1854. The lease stipulated that his tenants “shall annually satisfy and pay all damages done by their operations, whether above or below ground.” 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 averred that, in consequence of improper working of the minerals, proper support not being left for the surface-ground, his subjects had sunk and given way, his houses and buildings being weakened, and put in danger of falling.
The Lord Ordinary ( Kinloch) held the action relevant as against the mineral tenants, but dismissed it as against the superior. The Court recalled that interlocutor, and allowed a proof before answer of the averments of all the parties.
After the proof, the Lord Ordinary found it proved that the ground and houses belonging to the pursuer had sustained damage through the operations of the Monkland Iron Company in working the minerals without leaving sufficient support for the surface, and held that these defenders were liable in damages, which he modified to £500. He again assoilzied Mr Turner. The Lord Ordinary, in his note, stated his adherence to his former opinion,—that every mineral tenant is bound so to conduct his workings as to afford sufficient support to the surface. He was as much bound to this as the proprietors of an under-floor of a house is bound so to conduct operations on his property as not to injure the support afforded to the floor above. When the minerals are constituted into a separate property from the surface the proprietor or tenant of the one is as little entitled to do injury to the other through the necessary consequence of his operations as in the case of any other wholly distinct properties. Here injury had been proved. It was said that the minerals could not possibly have been worked without causing some subsidence to the surface, but the rest of the evidence explained this simply to mean, that subsidence could not be avoided where the workings were carried on in the particular way adopted, and so as to work out the minerals under the pursuer's property. There was no impossibility in leaving these minerals unwrought—probably none in working them to such
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diminished extent as would leave sufficient support. If the defenders, for their own profit, wrought all the minerals out, and wrought them in such a way as to bring down the pursuer's house, they were, on every principle of law and equity, bound to repair the damage. In this matter there was no distinction between the ground and the houses. Where minerals were constituted into a separate property from the surface, the proprietor of the surface was not thereby disabled from building houses more than from any other legal use of his property. As to the defender, Mr Turner, the Lord Ordinary thought he was not liable. The damage was done, not by the landlord, but by the tenants. A landlord was not liable for the acts of the tenants, except when the lease was of such a character as necessarily to authorize these acts; in which case the landlord, by his authority, would be as truly a party to the wrong as the tenant by whom it was perpetrated. This lease was not of that character. It had nothing in it to import that the minerals might be worked without leaving sufficient support for the surface.
The pursuer and the Monklands Iron Company reclaimed.
Pattison and Strachan for pursuer.
Clark and Watson for mineral tenants.
Dean of Faculty (Moncreiff) and Gifford for superior.
The subject of the feu-disposition is part of the estate of Barbauchlaw, near Armadale, a district which seems to be generally a mining district, and the object of feuing this piece of ground to the original feuar was that he might build houses on it—for he is taken bound to build in the feu-disposition—the houses to be built being of a very small class. It was in the knowledge of both parties to this feu-disposition that the minerals under the estate were let to the other defenders, and it was well known to both that that lease authorized the lessees to work the minerals under the ground of the feu. In these circumstances the parties might have dealt with the minerals in a different way. Dennistoun might have given out the feu without any reservation of the minerals, the effect of which would have been to make the feuar to a certain extent the landlord of the mineral tenant in that lease, and that would have given rise to an apportionment of rent between Dennistoun and his feuar. The feuar would have become a party to the lease with the company, and would have stood in the relation to them of a party bound by the contract. The parties resolved to take a different course, and it was made matter of agreement, expressed in this way, that the pursuer reserved to himself and his successors in the superiority, the property of the minerals, and, as the counterpart of this agreement, he and his foresaids were to pay to the disponees all damage which might be sustained by their subjects through working the minerals. Then follows this stipulation:—“But declaring always that should said minerals be let by me or my foresaids, my 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.”
As regards this last declaration, it seems to me that it has no application to the case here. It is clear, from the terms of it, that it was not intended to apply to operations under the then existing lease, which was fully in the knowledge of both parties. If that had been intended this clause would have been expressed in different terms. It is in form applicable to future leases, and not to existing ones. And that is still clearer, because the substance of the declaration is this, that when such a lease is let, the only obligation prestable against the superiors succeeding is, that they shall take their tenants bound to settle with the feuar, a stipulation which did not exist in the current lease. Therefore, I throw that part of the clause out of view altogether in dealing with the question between the superior and the feuar. And looking to the remaining part of the agreement as to minerals, it seems to admit of only one construction. The superior says, I reserve to myself and my successors in the superiority the whole minerals of the feu, and, in return, I fix this obligation on myself and my foresaids, that we shall pay the amount of any loss you may sustain through the working of the minerals. This is one of the simplest obligations possible, and therefore I shall merely state my opinion, that Turner is clearly liable.
But there remains the liability of the other defenders. The pursuer has no relation to the mineral tenant arising ex contractu. He has no stipulation in that lease applicable to his case at all. Nothing is stipulated on his behalf, and therefore if the mineral tenants are to be liable, that must arise not ex contractu but ex delicto. And therefore the question is, whether these mineral tenants are liable to the pursuer in consequence of improper working under his ground?
A great deal of argument was directed to showing that the right of these mineral tenants was in some views preferable to that of the feuar, and in
Page: 204↓
Lord Curriehill concurred with the Lord President in holding that the superior was liable to the pursuer ex contractu. On the question of the liability of the other defenders, he took a different view. He could not find any evidence, in the proof which had been led, that the act of the mineral tenants was wrongful. They had wrought out their minerals by a mode which was both legal and usual. It was said they had not adopted certain precautions they were bound to adopt to prevent injury to the surface. He thought the proof showed that they had only done what they were entitled to do. He doubted whether their obligation was increased by the owner of the surface, or any one in his right, erecting houses, and whether they were liable for damage to the ground in any other state than it was in when this lease was entered into.
The lease to the Monkland Company was in 1854—prior to the feu-right. The superior who granted the feu was landlord, and received the mineral rents under the lease. By his tenant he thus worked these minerals under the reservation in the feu-disposition; and he could only do so on the condition of paying for the injury done by the act of working.
If there was no fault in the manner of working, that would exclude action on delict; but not on this contract.
If there was fault in the working, that delict may render the mineral lessees liable to the pursuer; or it may render them liable to the superior in relief, just as they would have been liable to him if the land had not been feued and built on.
I am therefore of opinion, 1st, That the defender (Mr Turner) is liable under the contract in compensation to the pursuer.
2dly, I also think that the defenders (the Monkland Company) are liable to the pursuer ex delicto. This, however, is a more difficult question. There is no case or contract against them; on the contrary, they are not parties to the feu-contract, and the pursuer is no party to their lease. There is no privity of contract to support an action at the pursuer's instance against the Company on that ground. I am, however, of opinion, that their liability must be determined by the state of the facts, and that, as matter of fact on the proof, enough has been proved to sustain the action on the head of delict against the Company.
I agree with your Lordship and the Lord Ordinary that every mineral lessee is bound so to work the minerals as not to bring down dwelling-houses on the surface. I should be sorry if this could be doubted; and I have no doubt on it myself. That these defenders could have protected the houses and avoided this calamity by some additional cost, and additional caution, is to me plain on the proof. They could not have actually removed all the minerals without endangering the houses: that is true. But I am not prepared to say that they had a right to work up to within a few inches of the
Page: 205↓
Their case is, that they are not bound to more care under houses than away from houses. I cannot think this according to law, or reason, or humanity. There must be a reasonable obligation to work with due care and caution in the circumstances, and more care where danger is greatest. Nor can I admit the proposition of the defenders, that the mineral lessees are only bound to sustain the surface without buildings, or with the buildings at the date of the lease; and that if there were at that time no buildings, then only to sustain the ground without the buildings. I cannot accept that as good law.
I do not think that the granting a mineral lease operates as a prohibition against all building or feuing on the surface, except under the peril of destruction of the buildings without redress.
There is no question here of the building contributing to the subsidence, nor of an unfair or extravagant addition to the amount of damage by a building of an unusual and inappropriate description. Nothing was done here beyond what was in the contemplation of parties.
On the question of evidence, I have only to say that I agree with your Lordship, that the pursuer's claim, on the ground of fault or carelessness in working, has been sufficiently established.
It appears to me that the defenders, knowing that they were working under, and very near, dwelling-houses, did not take all the precautions within their power, and according to their duty, for securing against the injury, and, it may be, against the sudden and entire destruction of the dwelling-houses. That is, I think, a sufficient ground for holding the mineral lessees responsible.
There is no joint liability.
There may be questions of relief between these parties. They are, I understand, reserved.
Lord Deas concurred in holding both the superior and the mineral tenants liable in reparation to the pursuer. He was not sure if the liability of the one rested entirely on contract, and the liability of the other entirely on delict; but the main thing was that both were liable. As to the tenant, the question was a very general and important one. There was nothing unusual in the terms of the mineral lease, which seemed to have been prepared by some one quite familiar with the form of such instruments. Further, there was nothing illegal in the “longwall” system of working which the mineral tenants had adopted. That was the natural and usual mode. Still the question was, whether there was not some obligation on the mineral tenants with regard to the owner of this feu? This mineral lease comprehended a considerable extent of field. The rent under it was about £500 or £600 a-year. It was in the neighbourhood of a mining village, where houses were rapidly increasing. It was, therefore, a lease of minerals in a property as respects which it could not be held that the granter of the lease was giving up to the mineral tenants his right to deal with any part of that ground. It was not to be supposed that the lessor was not to build on any part of this estate under which the minerals were let;—that, for example, he was not to put up a farm-house or offices, or to build a lodge at the entrance of the avenue to his house. The superior did not give up that right. If he himself had built, the mineral tenant would have been bound to take care. There might be a difference as regarded the erection of large buildings, and perhaps all that was to be built was some colliers' houses. In the mineral lease there was an obligation to build twenty such. It might fairly be expected that such houses would be built, even by the superior. The question was just this, is there to be no use of the surface on account of the minerals? Suppose the minerals had been sold, the result would have been that the owners would still have been owners of the estate, subject only to such restrictions as are imposed by the rights of neighbourhood. He could not be debarred from exercising his usual right of property because there was another estate below. There was no authority for the contrary doctrine. Therefore, although the mineral tenants were entitled to work their minerals, yet, when they saw these houses, they were bound to take all the precaution they could not to bring them down, and if no other precaution would do, they must simply not work under the houses. But it was very plain, in the present case, that the mineral tenants had taken no precautions at all. They were at least bound to take all reasonable care, but they did not profess to have taken any; and such they maintained to be their right. That was clear from many parts of the evidence, and, though it was true that all the proof was not in one direction, the fair result of it was that they had done nothing at all to prevent injury to the surface.
Agents for Pursuer— J. Paris, S.S.C.
Agents for Mineral Tenants— Maconochie & Hare, W.S.
Agents for Mineral Tenants— Davidson & Syme, W.S.