Scottish Court of Session Decisions

In April 1839 William Blair of Blair granted to John Macdonald junior, writer in Glasgow, a lease of the whole minerals on his estate of Blair, to endure till Whitsunday 1920. Power was given to the lessee to raise, calcine, and carry away the minerals in the lands; “and for these ends to sink pits, or to make open casts or mines, to erect engines for drawing and draining the said metals and minerals, and water thereof; to form hills for depositing and calcining the said ironstone, or for depositing the said coal, lime, and fire and alum clay, or for making coke; as also to erect whatever works may be necessary for making fireclay bricks, with power also to make depots, roads, railways, waggon-ways, and canals;” and, generally, to do everything necessary for working the minerals conveyed.

It was provided by one clause in the lease “ that the lessee and his foresaids should be liable for and bound to pay all damage that should be done to the surface, or grounds and buildings thereon, by the working of the minerals in virtue thereof.” It was declared that after the end of the subsisting agricultural leases the surface damage should be fixed at 50s. per imperial acre; and, with regard to buildings, the damage to which was to be separately paid for, a special clause provides “that no damage should be payable for injury done to any buildings to be erected on the ground comprehended in this lease, after the date hereof, unless such buildings should have been placed and laid down in situations previously pointed out and approved of by a mining engineer to be appointed by the landlord and lessee.”

The defenders, the Eglinton Iron Company, are now in right of this lease, as lessees in room of John Macdonald.

In December of the same year, 1839, Mr Blair granted a feu-disposition to a James Macdonald of the lands of Doggartland, now called Ryefield, part of the estate of Blair, and extending to about 40 acres imperial measure. The disposition was granted under reservation of the whole minerals in the lands, and specially under reservation of the full benefit and effect of the lease of these previously granted to John Macdonald, “the said John Macdonald junior and his foresaids paying to the said James Macdonald and his foresaids the whole surface and other damages to be sustained by the said James Macdonald and his foresaids in consequence of the operations of the said John Macdonald junior and his aforesaids, in terms of said lease.“ A special reference is then made to the clause limiting the surface damages to 50s. per acre, and providing that no damage to buildings afterwards to be erected should be compensated, unless the building was erected on a site approved of by a mining engineer.

The feu-duty for which the feuar became bound under this disposition was £80 per annum, with the usual duplication at the entry of each heir and singular successor.

The feu-right constituted by this deed passed in 1845 to Mr James Alison, a leading partner of the Ayrshire Iron Company, which had acquired right to the lease of the minerals. In 1847 Mr Alison built on the lands a mansion-house of considerable size (thenceforward called Ryefield House), at the cost, it is said, of upwards of £3000. Mr Alison having become bankrupt, the house and lands of Ryefield were sold under his sequestration; and after passing through some intermediate holders, they were acquired in 1853 by the late Dr Hugh Aird Galbraith, the father of John Graham Galbraith, whose trustee is pursuer of the present action. By him, and his son John Graham Galbraith, large additional sums appear to have been laid out on the house of Ryefield.

From the time that Ryefield House was built, the access to it from the turnpike road to Dairy was, and still continues to be, had by a farm or servitude road, diverging from the public road near Dairy, and running up to the point at which the avenue to Ryefield House branches off, beyond which it ran on to the statute-labour road called the Baidland Road. This road to Ryefield was by every account a narrow, irregular, ill-made farm-road. But, such as it was, it was made to serve the purpose of access to Ryefield House, there being in fact none other.

In the year 1861 the defenders, the Eglinton Iron Company, by this time in right of the mineral lease, proposed to sink a pit for raising and calcining iron in front of the house of Ryefield. Dr Galbraith, then proprietor of Ryefield, had strong and very reasonable objections to a pit being sunk at that spot; and a communing ensued between him and the defenders, which issued in an arrangement by which the pit was removed to a less offensive position. The arrangement was embodied in a deed of lease, by which Dr Galbraith let to the company a small field and some adjacent pieces of ground, amounting in all to about 2½ acres, in which the operations of the company were to be carried on. The lease is dated in April 1862, but declares its endurance to be from Whitsunday 1861 to Whitsunday 1920. The rent was to be the nominal sum of one penny yearly; but a price or grassum of £300 was stipulated for and paid as the equivalent for the rights and benefits conveyed to the company by Dr Galbraith; and what these were the lease very distinctly states.

The deed sets forth in its narrative that the Iron Company (the second party in the lease), “ in carrying on their operations under the foresaid lease, lately resolved to sink a pit in the foresaid lands of Doggartland or Ryefield, with the view of working ironstone, and intimated their intention to the first party (Dr Galbraith), indicating a spot on the south side of his mansion-house of Ryefield (which has been erected since the date of the foresaid lease) as the most suitable place for sinking a pit, in order to work the ironstone to advantage: And whereas the first party conceived that it would be very injurious to the amenity of his mansion-house were a pit sunk in front or on the south side thereof, and made a proposal and offer to the second parties to the effect that if they would change the position of the pit, and sink the same in the small field after mentioned, situated on the west side of Ryefield House, and pay him £300 sterling, he would, in so far as he has the right and power so to do, allow them not only by means of the said pit to work minerals out of the neighbouring or adjoining lands, as well as minerals out of the said lands of Doggartland, but also give to the second parties full permission to use the whole of the lands contained in the said small field and adjacent portions of land, during the period after mentioned, for

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working minerals, depositing rubbish, or for any purpose they might think proper, and relieve the second parties of all surface and other damages which may be done to the said field and adjacent portions of land, or become exigible under the foresaid mineral lease in regard thereto; and which proposal and offer the second parties have accepted.” The deed on this narrative goes on to let the ground for the purposes specified; in return for which the company bind themselves to pay the sum of £300, and nominal yearly rent, “ for the piece of ground and powers and privileges hereby let, during the whole period foresaid, and that in full of all claims competent to the said first party against the second parties, for whatever damages may be done to the said small field and adjacent portions of ground, as delineated on the said plan, by the second parties' operations.

It is added— “ And farther, the second parties hereby engage and bind themselves not to sink a pit or erect machinery on any part of the said party's lands of Doggartland or Ryefield, situated in front or on the south side of the mansion-house, at any time hereafter, notwithstanding of their rights in virtue of the said mineral lease; but declaring that the rights of both parties hereto, under and in terms of the mineral lease before mentioned, in so far as not altered by these presents, and quoad ultra, are reserved entire.”

It is expressly declared that the lease of the ground in question is granted, “with right of access to the said field at the north-east corner thereof, from the present road leading to Ryefield Mansion-house.”

George Murray, C.A., trustee of John Graham Galbraith, who suceeded to Ryefield on the death of his father Dr Galbraith in 1864, now brought this action against the defenders asking declarator that they had no “ right or title to lay down iron plates or rails upon the farm road leading from the public turnpike road between Dairy and Maicli Bridge, through the pursuer's lands, past and forming an access to the farm-steading of Doggartland and the mansion-house of Ryefield, belonging to the pursuer the said George Murray, and other farmsteadings, to the Statute Labour Road, called the Baidland Road; nor to use the said road so as to render the same or any part thereof impassable for carts or carriages, or dangerous as an access to the pursuer's property,“ decerniture against the defenders to remove the “iron plates or rails already laid by them on said farm road, and to restore the said road to a proper state of repair, or to the state in which itwas before itwas interfered with by them; “ and also claiming a sum of damages. These damages were claimed partly in consequence of the defenders having laid down and maintained rails upon the road in question, and partly in consequence of injury done to the pursuer's house and grounds by smoke and ashes proceeding from the mineral works of the defenders in the field near Ryefield.

The Lord Ordinary (Kinloch) held, in point of law, that the act of the defenders, the Eglinton Iron Company, in laying and maintaining the said rails was a wrongful and illegal act, and ordained them forthwith to remove the same; found the defenders liable in damages to the pursuer for the injury sustained in consequence of the said proceeding, and modified the same to £97, 10s.; but found that the defenders were not liable to the pursuers for any sum in name of damages in respect of injuries occasioned by the smoke and vapours aforesaid.

His Lordship assoilzied Blair, with expenses.

In the note annexed to his interlocutor, the Lord Ordinary, after a narrative of the facts as above, said that the points at issue between the parties were substantially two—

“ I. The first of these relates to certain operations performed by the defenders on the road leading to Ryefield House, access by which to their pit is granted them by the last mentioned lease of 1862. It appears that about the end of 1861 (the lease ran from Whitsunday of that year), the defenders laid down on this road, for the whole length of it down to the turnpike-road, iron rails, with a flange on one side rising above the rail, on which they ran down their waggons from the pit to the public road, along which they then ran them towards the furnace. This they still continue to do. The pursuer contends that the company had no legal right so to deal with the road; and he now asks a decree finding the proceeding wrongful, and ordaining the defenders forthwith to remove the rails. He asks also damages for the injury which he alleges has been done by their Qperations on the road while they lasted, to the lands and house of Ryefield.

“The Lord Ordinary is of opinion that the defenders had no legal right to lay down these rails on the road. They had given them a right to the road. But unless their title expressed something to the contrary, it appears to the Lord Ordinary that the right must be considered as limited to the use of the road as it existed, and in its normal character of a road. To lay down rails on the road seems to the Lord Ordinary an inversion of its proper use as a road, which nothing but express agreement would sanction. There cannot be a doubt that the proceeding effected a great change in the character of the road, and one which was very prejudicial to the ordinary traffic passing alongst it. The road is proved to have been so narrow that there was no room left outside the rails for a separate track for other vehicles. These could only go up or down on the line of the tramway; and when the waggons were on the rails they might be said to enjoy a monopoly of the transit. A one-horse vehicle using the rails would require to go off to let the waggons pass; and, besides the difficulty of performing the operation with a spirited horse, the aet of getting the wheels over the flange was likely to injure the vehicle. With regard to a carriage and pair, the horses could only use the road by each straddling over a rail—an inconvenient and perilous mode of locomotion. In these and other particulars an essential alteration was produced on the condition and character of the road by laying rails on it—such as, in the estimation of the Lord Ordinary, could not be legitimately effected without the consent of all having right to use the road.

“It has been the subject of express decision, both in this country and England, that rails cannot legally be laid down on a public street ( Stewart v. Greenock Harbour Trustees, 8th June 1864,2 Macph. I 1155). It appears to the Lord Ordinary that the principle of the decision applies equally to the case of a private road to which two or more parties have right. The ground of prohibition is in both cases an inversion of the character of the road. What was held was, that one party having right to the use of the thoroughfare, was not entitled to lay rails on it without consent of another also having right. The principle applies directly in the present case.

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“ It was argued by the defenders that to lay down rails on the road was, if not necessary, highly expedient for all concerned in its use; because to use the road as it originally was by heavily-loaded waggons, such as those from the pit, would so cut it up and keep it in such a state of rut and mud as wouldmakeit almost literally impassible. There was a good deal of evidence, on the other hand, leading to the inference that the enclosure by the rails of a space betwixt them, trodden always in the same line by the horses' feet, had a not dissimilar tendency. The Lord Ordinary could not give to this consideration, as presented by the defenders, the effect of legitimating what was in itself a legal wrong. The bad effect of the waggons using the original road was at best theoretical. At worst, it would only involve more frequent repairs, more substantial road-metal, and a better bottom than at present; and a question might arise, at whose cost the increased repairs would be exigible. The Lord Ordinary could not now determine incidentally how the road should be dealt with in order to make it suit the increased traffic brought on it. He can only determine that it could not be altered from its original condition at the will of one of the parties entitled to use it without the consent of the others; leaving all the questions arising out of that common right of use to be determined as they may arise.

“ The defenders further contended that the circumstances disclosed in evidence imported a consent by the proprietor of Ryefield to the rails being laid, either by way of implied contract, operated by the lease of 1862, or of after acquiescence in the proceeding. The Lord Ordinary has very carefully considered the proof with reference to this argument, but he cannot find sufficient ground on which to sustain the plea. The lease merely gives “ right of access to the said small field at the north-east corner thereof, from the present road leading to Ryefield Mansion-house;” and it would be simply importing words into the contract which are not there to hold this to imply a right of laying rails on the road, more particularly considering how easy is was to give this right in express terms if it was intended to be given. The defenders observed that the date of signing the formal lease was 2d April 1862, while the rails are proved to have been laid down not later than the December previous, and they argued that this very fact imported an acquiescence in the rails. But the lease had its commencement at Whitsunday 1861, and must have been arranged before the rails were laid; and it would be somewhat too strong to infer an approbation of the rails from the mere circumstance of the lease being signed in the terms arranged without any express protest. It is proved that from time to time, especially after the death of Dr Galbraith, in March 1864, complaints were made of the rails; and a circumstance, in itself almost conclusive, is that in 1865 the rails were for a certain space altered in their construction to a flange of less depth, with the view of meeting Mr Galbraith's complaints. The proceeding, as the Lord Ordinary thinks, was a tentative one, and it was not satisfactory. In considering this plea, the Lord Ordinary must assume that the laying of the rails was in itself wrongful; but was so consented to, or acquiesced in, as to bar the present challenge on the ground of illegality. The Lord Ordinary is unable to discover sufficient grounds on which to rest such a conclusion.

“The Lord Ordinary being of opinion that the laying of the rails has been a wrongful act on the part of the defenders, it necessarily follows that he must grant decree for their removal. The pursuer has also right to damages for the injury sustained by their existence for a certain period. The Lord Ordinary cannot doubt that the value of Ryefield was depreciated by the road sustaining this conversion, which in several ways altered prejudicially the character of the access to the mansion-house. The damage is best represented by the depreciation of the estimated rent recoverable by letting the mansion-house; and looking to the evidence led, the Lord Ordinary considers that this is moderately struck at £15 per annum—giving a sum of £ 97 10s. as incurred down to the present date. The parties agreed that if damages were found due they should be calculated to the date of the judgment.

“ II. The other point of controversy between the parties regards a claim of damages advanced by the pursuers in respect of the injury done to the house and grounds of Ryefield by the smoke and vapours emitted in the process of calcining the ironstone in the adjoining field. The Lord Ordinary can have no doubt that such injury is sustained to a greater or less extent, both in the diminished amenity of the house as a residence, and in the positive damage (however much exaggerated) sustained by the garden and plantation. He has, at the same time, a very clear opinion that this claim of damages is groundless.

“ It is perhaps a summary yet conclusive answer to the claim that the pursuer (or his predecessor), having let the field for the express purjjose of iron being therein raised and calcined, cannot ask damages for the consequence of what he thus expressly consented to. The iron could not be raised and calcined without these consequences following; and a proprietor who lets his field for the express purpose of iron being raised and calcined cannot legitimately complain of the consequences necessarily arising. The case falls within a well-known category. What the pursuer seeks on this branch of his case is damages for a nuisance. It is trite law that the man who comes to a nuisance cannot complain of it. How much less he who consents to, and sets up the nuisance with his own hands. An express consenter to a nuisance never can ask damages for the nuisance.

“ There is a simple test which may be applied. Could the pursuer ask interdict against the defenders calcining their iron in this field? Very plainly he could not. The operation, therefore, is not wrongful, and cannot be stopped by the pursuer. It is, quoad him, a legal and unchallengeable operation. How then can he claim damages in respect of it? It is of the essence of a claim of damages that the act giving rise to the injury is a wrongful act.

“ A case may indeed occur in which an act may be not wrongful, and yet damages may be claimed in respect of its consequences, by force of contract. There may be damages due, ex contractu, in respect of an act unquestionably legal. This consideration brings to its true issue this part of the case. The defenders cannot be made liable in damages for the consequences of an undoubtedly legal act, unless it can be shewn that they have bound themselves by contract to pay such damages. It appears to the Lord Ordinary that no such contract has been established. He considers it established, on the contrary, that the defenders are freed by contract from the payment of such damages. By the original lease of the minerals, granted by Mr Blair of Blair,

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the lessees were unquestionably taken bound ‘to pay all damage that should be done to the surface, or grounds and buildings thereon, by the working of the minerals in virtue thereof.’ The question has been stirred whether this damage comprehends damage by smoke or vapour; and the point may not be altogether clear. But whatever was the damage contemplated by this contract, it is the opinion of the Lord Ordinary that the defenders were relieved from all liability on account of it by the clause in the lease of 1862, granted to them by Dr Galbraith. It is expressly set forth that, in respect of the payment of £300 thereby stipulated, Dr Galbraith and his successors were to ‘relieve the second parties of all surface and other damages which may be done to the said field and adjacent portions of land, or become exigible under the foresaid mineral lease in regard thereto.’ And the sum in question is accordingly declared to be received ‘in full of all claims competent to the said first party against the second parties, for whatever damages may be done to the said small field and adjacent portions of ground, as delineated on the said plan, by the second parties' operations.’ This is substantially a repetition of the terms employed in the original lease of the minerals by Mr Blair, whatever these terms signified; the difference simply being, that the provision is in the one case made applicable to the whole estate of Blair, in the other to this small specific part of it. The Lord Ordinary is therefore of opinion that the defenders were, by this transaction of 1862, relieved from all liability for damages contained in the original lease, so far as regarded their workings in the field then let by Dr Galbraith. This destroyed the contract operated by the original lease, so far as regarded these workings. But no other contract has been or can be shewn.

The pursuer argued that there were other damages, besides those referred to in the lease of 1862, for which the defenders might be liable; and that their right to these damages must be held to have been reserved by the lease of 1862 by the clause inserted therein, ‘declaring that the rights of both parties hereto, under and in terms of the mineral lease beforementioned, in so far as not altered by these presents, and quoad ultra, are hereby reserved entire.’ It is quite possible that there were other damages besides those set forth in the lease of 1862. The Lord Ordinary has indicated his doubt whether any of the deeds in question bears special reference to damages from smoke or vapour. But what the Lord Ordinary finds, and all that he finds, is that the damages contemplated by the original lease (whatever these may be) were taken off the shoulders of the defenders by the transaction of 1862. Whatever may be said of any other damages than these, the fact is undoubted that they were not imposed on the defenders by the terms of any contract, made either by them or by any one whom they represent. They are damages which are due at common law, if due at all. But at common law damages cannot be claimed on account of a nuisance, where the nuisance has been established with the participation, or by direct consent, of the claimant.

The defenders have contended that the claim of damages is excluded on another ground; on the ground, namely, that in the case of buildings erected after the date of the original lease, damages were only to be due where the site of the building was fixed with the approbation of the mining engineer, and that this did not happen in the case of Ryefield House. The Lord Ordinary is disposed to think that this also is a good answer to the claim; but he has not found it necessary to mature his opinion on the point, in consequence of his considering the claim sufficiently excluded on other grounds.

It only remains to add a few sentences on the case of the other defender, the present Blair of Blair. He is called as a defender with the iron company, on the ground that, as landlord, he is equally liable with the lessees in the damages occasioned by the workings under the lease. The Lord Ordinary is clearly of opinion that he is not liable for the act of the defenders in laying the rails; for this, which the Lord Ordinary has found to have been a wrongful act, was, in that view, not an act authorised by the lease, or essential to the working thereby sanctioned. A landlord can only be liable along with his lessee where the act complained of is either directly authorised by the lease, or is a necessary accompaniment of the operations which the lease enables to be performed. In regard to the damages claimed on account of the smoke or vapour, the defenders have been found not liable; and their landlord must be equally free.

The Lord Ordinary is of opinion that Mr Blair must be found entitled to expenses, no claim being made good against him. As to the other parties, he has found no expenses due, the success on each side being as near as may be equal.”

The pursuer and the Eglinton Iron Company reclaimed.

Solicitor-General ( Millar) and Trayner for Murray.

Clark and Gifford for Iron Company.

J. M'Laren for Blair.

At advising—