Scottish Court of Session Decisions

The respondents, the North British Railway Company, have right, for the purposes of the works authorised by the “Edinburgh and Glasgow Railway (Queensferry) Act, 1863,” to a certain piece of ground on the estate of Dundas, conveyed to them by disposition in 1865.

Section 70 of the Railway Clauses Consolidation (Scotland) Act, 1845, provides that “the Company shall not be entitled to any mines of coal, ironstone, slate, or other minerals, under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away, or used in the construction of the works, unless the same shall have been expressly purchased, and all such mines, excepting as aforesaid, shall he deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein, and conveyed thereby.”

The disposition in the present case contained no conveyance of minerals.

Jamieson, trustee on the Dundas estate, presented this note of suspension' and interdict, asking interdict against the respondents excavating, quarrying, and carrying away the bed of freestone underneath the portion of the estate conveyed to them, at least except in so far as such excavations were necessary in the course of the ordinary operations on the surface, required for making the lines of railway authorised by the Act. This prayer proceeded on the allegation that upon a part of the land in question “no works of any kind are being formed, but the respondents have recently opened therein a quarry, from which they have excavated and carried away a large quantity of very valuable building freestone, the property of the complainers. The said freestone forms a stratum or bed of great thickness, and is on an average from 8 to 14 feet, and at some parts 18 feet below the surface of the ground. The area already excavated by the respondents is at some parts nearly 50 feet in depth, and is about 300 feet long, by about 150 feet in breadth. The complainers have called on the respondents to desist from further excavation of said stone, but they refuse to do so, and are extending their operations laterally, as well as by deeper sinking. The stone is of great value, and well fitted for building purposes of the highest kind,”

The respondents pleaded that the interdict craved ought to be refused in respect—“ 1. The reservation in section 70 of the Railway Clauses Act applies only to mines of minerals—that is, to minerals workable by mines or underground workings, and does not apply to stone like that in question. 2. Such reservation is exclusive of so much of the said minerals as it is necessary to use, or dig, or carry away in the construction of the works. 3. Freestone or building-stone does not fall within the reservation. 4. The respondents, under the Edinburgh and Glasgow Railway (Queensferry) Act and incorporated statutes, have right to use the land acquired under that Act, and all the materials and substances in such lands, for the purposes of the works thereby authorised.

The Lord Ordinary ( KINLOCH), on 3d June 1868, pronounced this interlocutor:—“The Lord Ordinary, having heard parties’ procurators, and made avizandum, and considered the process, proof, and productions—Finds it proved, in matter of fact:— 1st, That by disposition, dated 24th and 25th November 1865, Mr Donald Lindsay, the preceding trustee to the suspender Mr George Auldjo Jamieson in the estate of Dundas, with consent therein mentioned, conveyed to the respondents, the North British Railway Company, a certain piece of ground on the said estate for the purposes of the Edinburgh and Glasgow Railway (Queensferry) Act, 1863; 2d, That across the said piece of ground it was originally contemplated that a line of railway should be constructed, but this design was afterwards abandoned; 3d, That for the intended construction of the said line it was not necessary that there should be any cutting into the soil, the line of railway being intended to run on the surface, or partly on embankment; 4th, That beneath the surface of the said piece of ground there lay a mass of freestone, capable of being worked by means of an open quarry, but also capable, if necessary or expedient, of being worked by mining underground; 5th, That the respondents, the said North British Railway Company, commenced and continued and still continue to work the said freestone by means of an open quarry, and to carry away the same, in order to use it in the construction of bridges, fences, and a pier or breakwater, forming part of the works authorised by the said Act of Parliament, but which works are not locally situated on the said piece of ground, but at a greater or less distance therefrom; Finds, in point of law, that the respondents were not, and are not legally entitled to work and carry away the said freestone as aforesaid; suspends the proceedings complained of; interdicts, prohibits, and discharges, in terms of the first alternative prayer of the note of suspension and interdict; declares the interdict perpetual, and decerns: Finds the suspenders entitled to expenses,” &c.

“ Note.—It appears to the Lord Ordinary that by much the greater part of the proof which has been led is irrelevant to the true question at issue; which lies within a narrow compass.

“The respondents have right, for the purposes of the works authorised by the Edinburgh and Glasgow (Queensferry) Act, 1863 to a certain piece of ground on the estate of Dundas, conveyed to them in 1865. The disposition contains no conveyance of minerals; and, by virtue of the 70th clause of the Railway Clauses Consolidation (Scotland) Act 1845, these were reserved to the proprietor. The enactment is:—‘The Company shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug, or carried away, or used in the construction of the works, unless the same shall have been expressly purchased; and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands unless they shall have been expressly named therein, and conveyed thereby.’

“The respondents have stirred the question whether freestone is included in ‘mines of coal, ironstone, slate, or other minerals;’ and they maintain the negative of the proposition. It is the opinion of the Lord Ordinary that it is so included. Freestone is, in correct language, a mineral; it is certainly neither an animal nor a vegetable. The object of the enactment is pretty clearly to give the railway company right to nothing but the surface, and so much of what is below as it may be necessary to dig out in the construction of the line; and to reserve to the proprietor all beneath the surface that is valuable, and capable of being raised and disposed of. The word ‘minerals’ is, no doubt, a term of some flexibility,

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and it may have a larger or more restricted meaning according to the nature of the transaction in the course of which it is used. The term may be construed, and has been construed, differently in different deeds. But in the case of a railway company buying land under the provisions of the Railway Clauses Act, it appears to the Lord Ordinary that the most extensive signification is to be given to it. Freestone appears to the Lord Ordinary to have its place in the reserving clause quite as much as slate, which is expressly mentioned; or as lime, which is not mentioned; but, it is presumed, would be held equally reserved. In more than one English authority freestone has been held a mineral; and it does not appear to the Lord Ordinary that there is any good ground, scientific or other, on which it is to be held a mineral at one end of the island, and not a mineral at the other— Rosse v. Wainman, 14 Meeson and Welsby, 859; Micklethwaitev. Winter, 20 Law Journal, N.S., Exch. 313.

“The argument mainly urged by the respondents, and to support or controvert which a good deal of the proof was led, was that by using the word ‘mines’ the statute intended to except only such minerals as might be and were usually wrought by mining operations underground, and not such as might be and were usually worked in an open quarry; and they maintained that freestone, being of the latter description, was out of the exception. The Lord Ordinary can by no means give effect to this contention. He thinks the word ‘mines’ was by no means intended to be used in this restricted sense, but was employed in what is both a popular and scientific meaning, as simply importing a subjacent bed or mass. The argument involves this absurdity, that the exception is not to be ruled by the nature of the substance, but by its mere mode of working; and the mineral is excepted or not according to the way in which its working is or can be best carried on. The fact is that most minerals can be worked either in the one way or other, according to what is most expedient or economical. The proof shows that in the case of freestone the practical question is, Whether the expense of tirring—that is, of removing the superincumbent surface—or that of mining underneath, is greater? The conclusion is usually in favour of the open quarry. But instances of the other mode were cited. Even, therefore, according to the theory of the respondents, freestone, being capable of mining, is within the clause of exception. The case, however, must be decided, as the Lord Ordinary thinks, on broader considerations than these.

“The freestone being thus excepted in a general view from the conveyance, the only other question which in substance was raised was, whether ttie railway company could claim it under the qualification of the exception relating to minerals, importing it not to apply to “such parts thereof as shall be necessary to be dug, or carried away, or used in the construction of the works.” The circumstance which raised this question was, that admittedly no portion of the line of railway was to run over the ground in which the quarry was opened up. A line was at first projected so to run, but the project was abandoned. Even had this line been formed, it is proved that it would not have required cutting, but would have run on the surface, if not actually on an embankment. The freestone is worked and carried away by the railway company for the purpose of being used in constructing bridges and fences, and more especially a pier or breakwater, part of the works authorised by their Act of Parliament, but not locally situated on the ground in question, but at some distance from that ground, greater or less. The railway company contend that so to take and use the freestone is their right under the qualifying clause.

“It appears to the Lord Ordinary that this also is an ill-founded argument in support of the company's claim. What is primarily contemplated by the clause is such substances as shall be necessary to be dug out in order to construct the line of railway running over the ground conveyed. The statute says “dug, or carried away, or used in the construction of the works;” and the respondents rely on the last of these three alternatives. The phrase is not without some ambiguity; but it may be satisfied without doing injury to the general purport of the statute, if it be remembered that, besides what is dug out and carried away in the construction of the line, there are, especially in the case of tunnels, side-pieces and archways, for which it may be indispensably necessary that the company retain the material. The statute, in express terms, only gives to the company what is “necessary” to the construction of the works. It is what is “necessary,” not what is “expedient” that is given. It appears to the Lord Ordinary that this provision cannot authorise the company to take as part of the ground, and for the price paid for the ground, not merely such freestone as might be necessarily dug out in the construction of the line running over the ground conveyed, but the whole freestone under the ground, in order to apply it in the construction of their bridges, and fences, and breakwaters.

“The view taken by the Lord Ordinary receives a strong, and it may be said almost conclusive corroboration, from the circumstance that the statute contains other provisions for the acquisition of minerals to be used for such purposes. The Lord Ordinary refers to the series of clauses in the Railway Clauses Act, commencing with the 25th (and particularly the 27th), providing for the company's occupation of adjacent lands, inter alia, “for the purpose of obtaining materials therefrom for the construction and repair of the railway, or such accommodation works as aforesaid.” The Company is, in this connection, expressly authorised “to dig and take from out of any such lands any clay, stone, gravel, sand, or other things that may be found therein useful or proper for constructing the railway.” But this privilege is coupled with very stringent conditions, particularly with the necessity of giving notice of their intention some considerable time previous; and for such occupation and use. a money compensation is enacted. There is also one particular clause, the 34th, which regulates the mode of working to be employed, the statutory rubric of which is, “stone quarries, &c., to be worked as surveyor or owner shall direct.”

“The railway company is now proceeding under these clauses, which provide the amplest means of their obtaining materials for their bridges and breakwaters, though involving what is not always the pleasantest condition, of notice and payment. The company does not lay its alleged right on these enactments. What is contended is, that by force of the purchase from the proprietor of Dundas, and as part of that purchase, and as paid for by the price of the ground, they are entitled to open and work a quarry, out of which already 60,000 tons of freestone have been dug and carried away, in order thereby to construct their works all round

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—bridges, fences, breakwaters, or whatever they may be—and, according to the argument legitimately carried out, at whatever distance from the spot. The statutory line is a short one; but, according to the argument, the company would equally be entitled to take freestone for works carried on at the other end of a line 50 or 100 miles long. And all this by virtue of a purchase of a piece of ground reserving the minerals, without any further contract or consideration.

“The Lord Ordinary feels it impossible to give effect to this contention, which he thinks at variance both with principle and equity.”

The respondents reclaimed.

When the case was put out for discussion no appearance was made for the reclaimers, and the following interlocutor was pronounced:—“The Lords having considered the reclaiming note for the North British Railway Company, No. 32 of process, in respect of no appearance for the reclaimers, refuse the said reclaiming note, and adhere to the interlocutor of the Lord Ordinary reclaimed against; Find additional expenses due, and remit,”&c.

SHAND and Balfour for complainer.

YOUNG and LANCASTEK for respondents.