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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Graham v. Duke of Hamilton and Others [1868] ScotLR 5_626 (30 June 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0626.html
Cite as: [1868] SLR 5_626, [1868] ScotLR 5_626
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SCOTTISH_SLR_Court_of_Session
Page: 626↓
Court of Session Inner House First Division.
v.
Facts:
A feuar, under whose ground the minerals were reserved to the superior, asked interdict against the superior and his mineral tenant using his land or the passages beneath for passage of minerals excavated in adjoining ground. Respondents ordained to pay a sum of way-leave, to be fixed by man of skill, pending discussion of the question of right in a declarator raised by the feuar.
Mr J. G. Barns Graham is proprietor of Cambuslang. The Duke of Hamilton is superior of that estate, and has right by reservation to the coal and limestone in a portion of the estate, the clause of reservation declaring it to be lawful to the superior “to sett down coal-pits, shanks, and sinks, and rise coal and limestone within the bounds of the said land, or any part thereof, and to make all engines and casements necessary for carrying on the said coal and limestone work, and free ish and entry thereto for making sale thereof, and away taking the same,” on compensation for damage. The Duke of Hamilton is also proprietor of the coal in the adjoining lands of Morristoun and Clydesmill, adjoining Cambuslang. The complainer presented this note of suspension and interdict against the Duke of Hamilton, and against J. & C. R. Dunlop, of the Clyde Ironworks, asking to have the respondents interdicted from using any roads or passages, whether above or below ground, in or through the estate of Cambuslang, for the purpose of carrying coal or other minerals from the lands of Morristoun or Clydesmill, or from any other lands
Page: 627↓
than Cambuslang. The complainer alleged that he had recently become aware that the late Duke of Hamilton had, by lease in 1852, let to the Messrs Dunlop the coal in Morristoun, and in 30 acres of Cambuslang, and that, by minute of agreement in 1862, the lease had been made to comprehend the coal under Clydesmill; that the Messrs Dunlop were in the habit of carrying through the lands of Cambuslang coal raised from seams in lands not belonging to the complainer. This, the complainer contended, the respondents were not entitled to do, and he accordingly brought a declarator against them, and also presented this note of suspension and interdict. The respondents, besides other defences, alleged that the complainer had known for some considerable time of the operations complained of, and was not entitled to this summary remedy. Interim interdict was granted by the Lord Ordinary before answer, but after answer his Lordship passed the note, but recalled the interim interdict, not being satisfied that when a superior, in feuing out land to different proprietors, has expressly reserved the minerals, he can be prevented from working them underground as one continuous field, and holding that he would not be warranted in continuing an interim interdict which might cause serious loss to the respondents from stoppage of their works during the trial of the question of right.
The complainer reclaimed, and asked the Court to continue the interim interdict. After some discussion, the complainer offered caution for any damage to be sustained by the respondents through the granting of interim interdict.
Young and Watson for complainer.
Clark, Thomson, and Keir for respondents.
At advising—
Lord President— This case is one of very considerable delicacy, much greater than usually attends the granting or refusing of interim interdict. I have had a strong impression throughout that it would not be altogether consistent with justice to adhere to this interlocutor of the Lord Ordinary as it stands, or to refuse this interdict without any condition at all.
There are several points to be considered on both sides. There is no doubt that it is very strongly alleged on the one side, and not contradicted on the other, that by imposing this interdict on the passage of coal through the complainer's mines, very considerable damage may be done, especially if that continues for any length of time through the question in the declarator being found to be difficult of solution, and the process depending for long. That there will be damage in the event of those works being stopped no one can doubt. On the other hand, the interest of the complainer is very peculiar, and is not to be secured by any ordinary caution for the consequences of the right of passage which the respondents allege through his waste. If they are allowed to exercise that right until they have worked out all the coal, all the complainer would have in the end would be a claim of damages for their having, without legal right, used this passage. Now, there may be no damage in any proper sense of the term. Indeed, it is pretty plain there will be none; and if the question of damages be submitted to a jury, the verdict would probably be nil. The value of the complainer's right, if he has it, is the means he has of compelling them to pay for the passage of the coal. The fear is that the right to demand payment for its passage through his mine may not be a legal right enforceable at law, and the only way is to refuse passage unless on payment, and that is what the complainer asks here. It rather appears that if this interdict is not immediately imposed the respondents will work out all the minerals which they require, and, when the main question comes to be determined, there will be no interest on either side. If this interdict were asked without caution, I should have had great difficulty in imposing it on any terms, or even attaching a condition to its refusal, for I should have seen that the imposition of it would inflict very considerable damage on the one side, and the non-imposition would not have caused much on the other side. If the complainer had not offered caution I should not have been disposed to listen to him. But his offer of caution changes the aspect of the question, and leads me to conclude that we cannot refuse interdict except on a condition. The condition I intend to suggest appears to me to be reasonable, and such as I think ought not to be objected to by the respondents. It is, that they should consent, not to admit any liability, but during the process of declarator to pay a certain way-leave, to be fixed by a man of skill; and in the event of their succeeding in the declarator, then they shall have right to repetition; and if they fail, and are found to have no right, then the payments shall remain and become absolute payments, and nothing more shall be demanded for the period when the case is being tried. Then, in the declarator the question will be tried, and after the conclusion of it the complainer, if successful, may make his own terms.
If your Lordships agree with me, I propose to remit to a man of skill to fix what would be a reasonable way-leave, and to make that a condition of refusing the interdict.
Remit to Mr Landale, mining engineer, to fix way-leave.
Solicitors: Agents for Complainer— Graham & Johnston, W.S.
Agents for Duke of Hamilton— H. & A. Inglis, W.S.
Agents for Dunlop— G. & G. Dunlop, W.S.