Scottish Court of Session Decisions

This action of declarator was raised by Sir George Douglas Clerk, Baronet, heir of entail in possession of the estate of Penicuick, and by John Clerk, Esq., Q.C., his curator, against George Edward Clerk and Others, the substitute heirs of entail to the said property.

The summons sought to have it declared that “the pursuers, Sir George Douglas Clerk and John Clerk, have full and undoubted right and power to communicate the level of the coal of Lasswade, belonging to the pursuer, Sir George Douglas Clerk, to the neighbouring colliery of Dryden, belonging to Colonel Robert Archibald Trotter of Castlelaw and Dryden, notwithstanding any prohibition contained in a deed of entail executed by the deceased Sir James Clerk of Penicuik, Bart., bearing date the 14th, and registered in the Register of Tailzies 12th June 1782, and in the books of Council and Session 26th April 1798; and in particular, it ought and should be found and declared, by decree foresaid, that the pursuers have full and undoubted power and authority to permit the Shotts Iron Company, tenants of the minerals under the pursuers at Loanhead, in the parish of Lasswade, to communicate the coal workings and coal levels within the said field to the neighbouring estate of Dryden, belonging to the said Colonel Robert Archibald Trotter, so as thereby to enable the said Shotts Iron Company to make use of the said coal workings and levels for carrying off the water from the mineral field, so as to facilitate and admit of raising minerals from the said estate of Dryden.”

The deed of entail under which the estate of Penicuik was held by the pursuer contained the following prohibitory clause:—“And with this limitation and provision also, that it shall not be lawful to, nor in the power of my said heirs of taillie, or any of them, to sett tacks (for any periods whatever) of the whole or any part of the coal lying under and beneath the whole lands and barony of Lasswade, for any term whatever, nor to communicate the level of the said coal of Lasswade to any neighbouring colliery.”

In virtue, however, of the Act 6 and 7 Will. IV. c. 42, a lease was entered into in 1866, whereby the late Sir George Clerk and his curator bonis let to the Shotts Iron Company, for thirty-one years as from 1865, the whole coal, cannal coal, bituminous shale, ironstone, limestone, and fire-clay, lying under certain parts of the lands of Lasswade in the neighbourhood of Loanhead. This lease contained a clause in the following terms:—“And it is hereby expressly provided and declared that the lessees and their assignees and sub-tenants shall on no account communicate any of the coal workings or levels within the foresaid lands to any adjoining proprietor; but this prohibition is not intended to apply to their works for raising and manufacturing iron, and that the said lessees may communicate their works for raising and manufacturing iron, but not coal, to neighbouring lands, the minerals of which may be let to them; and should the lessees also become lessees of the minerals in any of the adjoining properties, they shall have liberty to use the pits, hill-grounds, and railways, &c., on the foresaid lands, in so far as that can be done in conformity with the provision and declaration above written, for similar purposes, upon their satisfying the said Sir George Clerk or his foresaids that the minerals raised from the different properties will be properly distinguished, and upon paying to the said Sir George Clerk or his foresaids one penny sterling per ton of twenty-two and a-half hundred weight for all other minerals that shall be raised from the pits in lands belonging to other parties and carried over the lands belonging to the said Sir George Clerk.”

The lauds of Lasswade are bounded on the west by the estate of Dryden, belonging to Colonel Trotter of Castlelaw and Dryden. The Shotts Iron Company became in the year 1869 lessees of the minerals under the lands of Dryden in the neighbourhood of their Loanhead workings or the estate of Lasswade. In January 1870 the Shotts Iron Company applied to the late Sir James Clerk, then heir of entail in possession of the estate of Penicuik, for leave to communicate the level in the Loanhead estate to the workings in the Dryden field, so as to economise labour and expense by working the two fields with the same level and from the same pits. Their application was in the following terms:—

“ Shotts Iron Works, 21 st January 1870.

Stuart Neilson, Esq., W.S., Edinburgh.

Dear Sir,—The Shotts Iron Company's mineral workings in the lands of Loanhead, which have been carried on for some time from pits and mines on the east side of the village of Loanhead, are

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approaching a ‘slip’ or ‘dyke’ near the western boundary of Loanhead estate, known in the district as the ‘Burghlee Dyke.’ The minerals to the west of this ‘slip’ or ‘dyke,’ although the same as on the east side, are not of sufficient extent in Loanhead lands alone to warrant the necessary expense for opening up and working the same; and it is a question with the mineral tenants whether they would not be better to restrict their workings entirely to the east side of Burghlee Dyke, and leave the western portion of the mineral field unworked. This however, they are very unwilling to do, as they consider it would be more advantageous to both landlord and tenants that the whole area of this mineral field should be worked simultaneously.

In order to do this properly, the minerals in the adjoining lands of Dryden, belonging to Colonel Trotter of the Bush, would require to be worked along with and from the same pits and mines as the minerals in Loanhead to the west of the Burghlee Dyke before referred to; but although the Shotts Iron Company have the right under their lease of Loanhead minerals of working the ironstone in the manner described, they are prohibited from working the coal in the same way; and this prohibition will, if adhered to, operate very injuriously for the interests of both landlord and tenants, because the same expenditure in sinking and fitting pits and mines would, if that prohibition were removed, enable the tenants to work both coal and ironstone; but, on the other hand, with such a prohibition it is not worth while for the tenants to incur such an expenditure for the sake of working the ironstone alone. If the prohibition was removed the tenants would immediately conclude an arrangement with Colonel Trotter for working the whole of his Dryden minerals from pits and mines to be situated near the western boundary of Loanhead lands, so that the whole of the minerals in the lands of Loanhead, to the west of the Burghlee Dyke before referred to, would be worked from such pits and mines simultaneously with the minerals on the east side of said dyke from the pits and mines now at work near Loanhead village, and the gross output of minerals from Loanhead estate would, in this way, be increased about 50 per cent., and that from a part of the mineral field which cannot be worked advantageously except in connection with Dryden minerals. Besides, the whole of the Dryden minerals raised from these pits and mines would be subject to a wayleave which might be expected to run from £100 to £300 per annum. Nor would any permanent injury whatever be done to Loanhead mineral field by such an arrangement, because it would be an easy matter to provide for the building up of any temporary connection that might be made between the workings on the east and west sides of Burghlee Dyke, which is undoubtedly the natural boundary of Loanhead mineral field to the west. What I would suggest then is, that this matter should be referred to the mining engineer for the landlord (Mr Geddes), for his consideration, and if he reports that what I have proposed is fair, reasonable, and practicable, and for the mutual advantage of both landlord and tenants, then that an application should be made to the Court to grant the necessary powers to Sir James Clerk's curator to modify the lease as desired. The Shotts Iron Company, of course, bearing all the expense of the remit to the engineer, and of the application to the Court.—I am, dear Sir, yours respectfully,

(Signed) J. W. Ormiston.”

Mr Geddes reported in favour of this proposal of the Shotts Iron Company, and an application was accordingly made to the Court by Sir George Clark's curator for special powers to modify the lease of the Shotts Iron Company. This application was reported to the Inner House by the Lord Ordinary, and it was in consequence of the views expressed by the Court, and with reference to that application, that this action of declarator was raised.

The pursuer pleaded—“(1) The prohibition to communicate the level of the coal of Lasswade is no longer binding upon the heirs of entail, the same being subsidiary to the prohibition against setting tacks of coal, which prohibition is now no longer operative. (2) The said prohibition against communicating the level of the coal is null and void, as imposing an undue restraint upon property, without any corresponding interest to protect. (3) The heirs of entail having no interest in enforcing the prohibition, they have no title to do so, and decree ought to be pronounced in terms of the conclusion of the summons.”

On the other hand, the defender pleaded—“(1) The whole defenders should be assoilzied from the whole conclusions of the summons, in respect that the proposed communication of level of the coal of Loanhead to the colliery of Dryden is expressly and effectually prohibited by the entail libelled, and that said prohibition has not been relaxed by any subsequent legislation, or other competent authority. (2) The proposed operation being not only not advantageous, but, on the contrary, prejudicial to the interests of the whole heirs of entail other than the pursuer Sir George Douglas Clerk, the defenders should be assoilzied from the whole conclusions of the summons.”

The Lord Ordinary ( Mackenzie) having heard counsel for the parties, reported the case “not only on account of the novelty and importance of the question, but because the action has been raised in consequence of the views expressed by the Court on the report of the Lord Ordinary (interlocutor, dated 25th May 1870) in an application presented, under the Pupils' Protection Act, by the curator bonis of the last proprietor, for authority to modify the lease of the Shotts Iron Company, by removing the prohibition therein contained against communicating the levels of the coal of Lasswade to the Dryden colliery.”

He added the following statement in his Note:—“The first question is, What is the meaning and object of the limitation in the deed of entail? The Lord Ordinary considers that it was not inserted for the purpose of limiting the operations of the heir in possession in winning the coal of the Lasswade coalfield. It appears to him that, in order to prevent the communication of the level in the coal in Lasswade to any neighbouring colliery, a barrier of coal would require to be left at the march of the estate, and that the object of the limitation was to exclude the water of neighbouring collieries from the Lasswade coal-field, and to secure to the heirs of entail, in personally working the Lasswade coal, the sole benefit of day level drainage by means of the Mavisbank level, which has long existed in the Lasswade coal-field to a depth of forty fathoms, or thereby, from the surface at the Engine pit. But this limitation, which was, it is thought, intended for the benefit of the heirs of entail, is

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now found to be injurious. If effectual, it will prevent the beneficial working of the coal and other minerals in the thirty acres of ground situated to the west of the Burghlee dyke, and it will also deprive the heir in possession of the benefit of a considerable amount of revenue, which he would derive from a way-leave on all the Dryden coal and other minerals carried through the intended workings in these thirty acres, and brought to the surface by means of a pit which would be sunk therein, if it is lawful to open a communication between the coal-workings in the two estates. The limitation, then, is truly an interference with the beneficial administration and management of the estate by the heir in possession. Further, it does not confer any corresponding advantage upon succeeding heirs. The only advantage from the limitation is that which arises from excluding by a barrier the water of the Dryden coal-field from the Lasswade coalfield, which, as the dip of the strata is to the southeast, would flow into the Lasswade workings when these happened to be deeper than the workings in Dryden. But this advantage would not be obtained, because, as there is no prohibition in the entail against communicating the levels of the ironstone, oil shales, limestone, and fire-clays, in the lands of Lasswade to neighbouring collieries, the limitation in the deed of entail is, according to Mr Mackenzie's report (on a remit made to him by the Lord Ordinary), ‘quite useless, and of no benefit at all, as the workings in the two properties can be as effectually connected, so far as drainage is concerned, in the ironstone or other mineral seam, as in the coal.’

The question then arises, whether the limitation is so fenced, by virtue of the provisions of the Act 1685, c. 22, as to prevent the heir in possession working out the coal to the march of the Lasswade estate, and for a valuable consideration communicating the levels of the Lasswade coal to the Dryden colliery. It is, no doubt, made lawful to proprietors by the Act ‘to tailzie their lands and estates, and to substitute aires in their tailzies with such provisions and conditions as they shall think fit, and to affect the said tailzies’ with prohibitory, irritant, and resolutive clauses against alienation, the contraction of debt, and the alteration of the order of succession. But does the Act make every condition and provision which may be invented by an entailer binding upon the heirs of entail, and, in particular, a provision like the present, which imposes an undue restraint upon the heir in possession, and is hurtful to his beneficial enjoyment of the estate, and which is not calculated to carry out the express prohibition mentioned in the Act, or to secure the succession of the substitute heirs in terms of the tailzie?

Further, it is to be observed that the limitation is an integral part of the clause prohibiting tacks of the coal. But by the statute 6 and 7 Will. IV. c. 42, sec. 1, it is enacted that, ‘notwithstanding any prohibitory, irritant, and resolutive clauses, contained in any entail’ pursuant to the Act 1685, c. 22, it shall be lawful for the heir in possession ‘to grant tucks of any mines and minerals contained in such lands and estates for any period not exceeding thirty-one years.’ Is the pursuer, by virtue of this statute, entitled to grant a lease of the whole Lasswade coal to the Dryden march? because, if he is, the tenant may work it all out, and so defeat the limitation in regard to the communication of the coal levels.

After anxious consideration, the Lord Ordinary has come to the conclusion that the limitation in question does not prevent the pursuer, Sir George Douglas Clerk, from communicating for onerous causes, the levels of the coal of Lasswade to the Dryden colliery, and from permitting for onerous causes, the Shotts Iron Company to make such a communication. It will be observed that the pursuer does not, in the conclusions of his summons, limit the right he seeks to have declared to the granting of onerous deeds.

The benefit to the heir in possession by the coal-workings in Lasswade and Dryden being made to communicate, would be the increased income arising from the immediate working of the thirty acres of coal and ironstone to the west of the Burghlee Dyke, by means of a pit in these thirty acres, and from a considerable amount of way leave on the Dryden coal and minerals brought to the surface by means of that pit. The defender avers that this would be prejudicial to the interests of succeeding heirs of entail by leading to the unduly rapid exhaustion of the minerals. That is the only prejudice averred in defence. Such an objection is not, it is thought, a sufficient answer to the pursuer's claim, in so far as regards onerous deeds, because the object of the limitation was not to prevent or retard the operations of the heirs of entail in winning the coal, but on the contrary, to facilitate these operations, and, through the benefit arising from the day level drainage afforded by the Mavisbank level, to enable them, when selling their coal in the market, to compete on favourable terms with other proprietors.”

Fraser and Watson were heard for the pursuer.

Solicitor-General ( Clark) and Marshall for the defender, Colonel Henry Clerk, R.A.

Authorities referred to—Hunter on Landlord and Tenant, i. 113; Gordon, Jan. 24, 1811, F.C.; Muirhead v. Young, Feb. 13, 1858, 20 D. 592; Wemyss, Feb. 7, 1809, F.C.; Crawfurd, Feb. 3, 1824, 2 S. 667, and H. of L. 2 W. and S. 354; Egerton, 1853, 4 H. of L. Cases, 241; Kames' Elucidations.

At advising—