Scottish Court of Session Decisions

This was an application for interdict by Mrs Durham, proprietrix of the Polton Coal-field, against Mr Archibald Hood, tenant of the Dalhousie Coal-field. The Dalhousie coal-field marches with that of Polton, and is on a higher level, and consequently when there is water in the Dalhousie coal-field it passes to the Polton workings, if there is any passage by which it can escape. Some years ago a coal tenant in Polton had made an encroachment on Dalhousie by working the jewel coal (the lowest seam at present worked) for a short distance across the boundary line. This encroachment is now a waste, more or less filled with rubbish. In 1870 Mr Hood, who had previously sunk two other pits in the neighbourhood, sunk a pit (referred to as No. 3) within 10 yards of the Polton march, and immediately over the encroachment—one of his objects admittedly being to let away the Dalhousie water through the encroachment into the Polton field. Reaching water in this pit, he put down a 10-inch bore to the encroachment. The water, however, did not go away, or went very slowly. Thereupon, on the 5th and 6th May, he caused two heavy blasts to be fired in the encroachment waste, consisting of 12lb. canisters of gunpowder. The effect of the blasts was that the water immediately began to subside and escape into the Polton field, in consequence, as Mrs Durham alleged, of the dislocation of the strata and reopening of silted up cracks within the Polton march produced by the explosion. This flow of water greatly increased the expense of the Polton workings. Mrs Durham in consequence presented a note of suspension and interdict, in which she prayed the Court to interdict Mr Hood from discharging blasts in or near the march, and from performing any operation whereby the strata between the respective coal-fields should be disturbed or cracks opened up.

Interim interdict having been granted, and parties being allowed a proof, a considerable body of evidence was led on both sides, particularly of skilled witnesses as to the probable effect of the blasts. Direct inspection was not possible, as the jewel waste was not accessible.

The Lord Ordinary pronounced the following interlocutor:—“Interdicts the respondent from firing off blasts of gunpowder or other explosive material in or near the pit or shaft No. 3, which has been sunk by the respondent within 10 yards or thereby of the march between Polton and Dalhousie coal-fields, and from performing any other operations whereby the strata or materials in the suspender's coal-field of Polton, within the Polton march, may be dislocated or disturbed, or cracks or fissures therein may be opened up, or the silting removed therefrom; and declares the above interdict perpetual.

Note.—The questions raised by the present note of suspension and interdict are attended with nicety, and it is not without some hesitation that the Lord Ordinary has come to think that the suspender is entitled to the interdict now granted.

In granting the interdict, the Lord Ordinary does not intend to interfere with the right of the respondent to work the whole minerals in the Dalhousie coal-field. In the words of the Lord Justice-Clerk in Baird v. The Monkland Iron and Steel Company, 18th July 1862, 24 D. 1425—‘it is perfectly clear, as a general proposition in law, that a mineral proprietor or tenant is entitled to work out every ounce of the mineral in his own estate without the least reference to the interests of his neighbour.’ That is perfectly true, and if the party who lies to the dip is afraid of being drowned or incommoded by the water of the mineral owner or tenant who lies to the rise, it is his business to have a barrier of his own minerals,

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sacrificing that portion of his own property for the purpose of keeping out the water. Reference may also be made to Bald v. Alloa Coal Company, 30th May 1854, 16 D. 870; Baird v. Williamson, 33 Law Journal, C. Pleas, 101; Acton v. Blundell, 12 Meeson and Welsby, 324; Chasemore v. Richards, 1859, 7 House of Lords Cases, 349, 29 Law Journal, Exchr. 81; Smith v. Kenrick, 18 Law Journal, C. Pleas, 172; Broom's Comms., pp. 79, 82, 85.

But while the respondent has undoubtedly this right of working out his own minerals to the very edge of his march—even although the effect of this may be to send water into the Polton coal-field—the Lord Ordinary thinks it is equally clear that the respondent must not touch or interfere with the strata, material, or wastes in the Polton coal-field, so as thereby to facilitate the escape of water from the Dalhousie workings. For example, if the ordinary barrier had been left by the Polton coal-owner along the rise of his own field, in order to keep out the water from Dalhousie, it is manifest that the Dalhousie tenant could not destroy that barrier either by directly piercing it, or by dislocating or cracking it by blasting or otherwise, so as to let the water pass through it. In short, while each mineral owner or tenant may work out within his own limits to the fullest extent, he must not interfere, directly or indirectly, with the neighbouring properties; and, above all, he must not, with a view to his own advantage, destroy the barriers which his neighbour has left for the protection of the field to the dip.”

After narrating the facts of the case, his Lordship proceeded:—“The point in controversy between the parties is, Were the blasts which the respondent fired on the 5th and 6th May 1870 lawful or not? The suspender says that these blasts disturbed, shook, or dislocated the strata or material within the Polton march, or, at all events, opened seams or crevices in Polton ground, and thus let the water flow into Polton. On the other hand, the respondent maintains that the blasts merely cleared out the waste in the encroachment within the Dalhousie march, and that this was quite legitimate. Now, there is undoubtedly conflicting evidence as to the effects which the blasts would probably produce. Necessarily, it is a matter of skilled opinion, to be judged of in the circumstances, for there is no access to the old waste to see what the blasts really did. The only fact proved is, that immediately after the blasts a large flow of water took place into Polton coal-field. It is matter of conjecture and skilled opinion how this result was brought about. On the whole, and without weighing too nicely the reasoning of the skilled witnesses, the Lord Ordinary has come to be of opinion that the blasts were not a fair and legitimate exercise of the respondent's rights, and, accordingly, he has interdicted their repetition. The following are the leading considerations which have induced him to do so:—(1) Blasts of the size in question (121b canisters) are very unusual in ordinary mining operations. Blasts by 1 4lb or 3 4lb charges are not uncommon, but it is in very exceptional circumstances that anything like a 121b charge is ever used. (2) The blasts were fired very near the Polton march—that is, at the bottom of the pit sunk within 10 yards of the march. Such blasts fired so near the Polton ground may easily be supposed to have some effect within the Polton march. The evidence of opinion is conflicting; but, even if the matter were held to be doubtful, this would be enough to entitle the suspender to complain. Even Mr M'Kenzie, one of the respondent's witnesses, admits that firing such blasts so near the march was ‘unneighbourly.’ (3) Although the blasts might not affect solid strata, they might easily open crevices in strata already dislocated, which crevices would otherwise have remained silted up, and, at all events, the blasts would shake, loose, or open up the rubbish or material which was in the jewel waste. This last was the very object avowed by the respondent; and, although he maintains that the rubbish thus disturbed and shaken would be all within the encroachment, and therefore within the Dalhousie boundary, the Lord Ordinary cannot take this to be so certain as to allow the blasts to be repeated. The skilled witnesses differ as to how far the effects of the blasts would go, and, operating in loose material, the Lord Ordinary cannot think it unlikely that they would produce effects within the Polton march. It is admitted, and at all events is clear, that the respondent had no right to touch or to shake either strata, or rubbish, or silting outside his own march. (Lastly) The blasts are not necessary, in any view, for the respondent's mining operations. They were not resorted to either to sink the shaft or to take out coal. The respondent can sink his shaft quite well without such blasting, and has actually done so, and of course there is no coal to blast in the waste of the encroachment where the blasts were fired. The respondent argued that he could produce the same effect by boring without blasting, and there is certainly some evidence that a second 10-inch bore without blasts sent water to Polton, though it is difficult to say that this might not have been assisted by the previous blasts. But the true answer is, that if blasting is unnecessary, why resort to it? It is undoubtedly attended with risk, and may interfere with the strata, crevices, and packing in Polton. If boring alone will answer the respondent's ends, there is no interdict against his boring to any extent in his own land. The Lord Ordinary has somewhat varied the terms of the interdict, so as to make it clear that what is interdicted is blasting, or operations which may affect, shake, or disturb strata, material, or crevices within the Polton march.”

Mr Hood reclaimed.

Fraser, Shand, and Strachan, for him—It is not proved that the effect of the explosion extended beyond the Dalhousie march. The flow of water into Polton would equally have followed in consequence of the sinking of pit No. 3, and the boring, which were operations that could not be complained of.

Millar, Q.C., and G. S. Dundas, in answer— What Mr Hood did was a novel and extraordinary operation, close to the march, and not in the fair course of working. It is proved that Mrs Durham has in fact suffered injury, and it therefore lies upon Mr Hood to prove that his operations were not the cause of the injury.

At advising—