Scottish Court of Session Decisions

This is an action at the instance of John Bain, Esq. of Morriston, proprietor of the lands of Morriston in Lanarkshire, and the defenders are the Duke of Hamilton, as superior of that estate, and Messrs Colin Dunlop & Co., the tenants of the minerals. The summons concludes for damages on account of injury done by the improper working of the pits underneath the estate.

When the lands were feued in 1653 the superior reserved to himself the minerals by the following clause—“Reserving, nevertheless, to me, my heirs and successors, full power, right, and liberty to win

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coals and coalheughs within the bounds of the said lands of Morriston, and to use and dispone therefrom at our pleasure, with free ish and entry thereto, I and my foresaid giving satisfaction and payment to the said Robert Miller and his foresaid for all skaith, damage, or interest that they shall happen to sustain or incur therethrough.” In the renewal of the investiture by the Duchess of Hamilton in 1698, the clause of reservation was—“Reserving always liberty and power to us, as superior of the said lands, to minerals and coalheughs, and for that effect to set down shanks within any part of the said lands; we always giving satisfaction for the damage they shall happen to sustain through leading or setting down of said shanks.” This clause was inserted in all the after renewals of investiture, and is that which is contained in the deed by which the pursuer personally holds of the Duke of Hamilton. The defenders contend that the original form of the reservation was superseded by that of 1698, and that the special provision thus made for damages incurred by setting down shanks in the lands of Morriston must be read as having the effect of excluding all other descriptions of damage. The Lord Ordinary ( Kinloch) repelled this plea and “found it relevant to infer a liability for damages that the defenders, or either of them, have produced injury to the pursuer's land or the houses thereon by working the minerals beneath the same without leaving sufficient support to the surface; and appoints the cause to be enrolled, in order to the determination of the facts.”

The defenders reclaimed.