Scottish Court of Session Decisions

This was an action brought by Mr John Boyd, Liverpool, against the Earl of Zetland and George Caddell Bruce, C.E., William Broom and Thomas Brownlie, to have it declared that the pursuer was in right of the mines and minerals in a certain portion of the lands of the barony of Seabeggs, of which the defender the Earl of Zetland was superior and the other defenders proprietors. The circumstances under which this action was brought were as follows:—By feu-contract, dated the 20th and 22d September 1729, entered into between John Don of Seabeggs and William Don, his eldest son, on the one part, and the pursuer's great-greatgrandfather John Boyd (I.) on the other part, the said John and William Don sold, alienated, and in feu-farm disponed to John Boyd, heritably and irredeemably, the said lands of Seabeggs, and the said John Boyd (I.) was duly infeft in the said subjects. The said John Boyd (I.) died about the year 1765, and was succeeded by John Boyd (II.), portioner of Seabeggs, his eldest son and nearest and lawful heir, who in that character made up a title to said subjects by precept of clare constat, dated 25th December 1765, granted by Major Chalmers of Camelon, liferent superior, and Sir John Pringle, W.S., the commissioner for Sir Laurence Dundas, to whom the said William Don had sold the superiority of the said lands of Seabeggs in the year 1762. Upon this precept the said John Boyd (II.) was infeft in 1766. The said John Boyd (II.) died in or before the year 1814, and was succeeded by John Boyd (III.), portioner in Seabeggs, his eldest son and nearest and lawful heir, who made up titles to said subjects by precept of dare constat, dated October 10, 1814, granted by the Right Honourable Thomas Lord Dundas (now Earl of Zetland), superior of the lands and barony of Seabeggs, upon which the said John Boyd (III.) was infeft in 1814. In each of these precepts of dare constat there was a clause professing to reserve the mines and minerals to the superior. The clause, which was substantially the same in both writs, was expressed in the precept of 1765 in the following terms:—Excepting and reserving always to us, according to our respective rights and interests of liferent and fee above mentioned, the haill mines and minerals within the ground of the foresaid lands, with power to set down sinks, drive levels, and work and win the same as we think fit, the said John Boyd, his heirs and successors, being always payd of what damages shall be sustained by them in working the same, as shall be determined by two neutral persons.” John Boyd (III.) sold the subjects, which, after passing through several hands, came into the possession of the defenders George Caddell Bruce, William Broom, and Thomas Brownlie. Before raising this action, the pursuer obtained from the Sheriff of Chancery service as nearest and lawful heir in general to John Boyd (I.).

The defence was that John Boyd (I.) did not die last vest and seised in the said mines and minerals, in respect (1) that the superior was entirely divested of the dominium utile of the lands of Seabeggs, including the mines and minerals therein, by the unqualified infeftment in favour of the said John Boyd (I.), the original feuar; (2) that the attempted reservation of mines and minerals in favour of the superior in subsequent renewals of the investiture was wholly unauthorised and inept, and had not the effect of making the mines and minerals an estate separate and distinct from the dominium utile of the surface; (3) that the whole dominium utile of the said subjects, including the mines and minerals, was effectually transmitted to and feudally vested in John Boyd (III.), the grandson of the original feuar, in virtue of the renewals of the investiture by the successive precepts of dare constat and sasines in favour of him and of his father John Boyd (II.); and (4) that the whole dominium utile of the subjects, including mines and minerals, had been conveyed to the defenders in virtue of the transmissions above set forth.

The defenders therefore pleaded, inter alia, that the pursuers could not insist in the action while the defenders' title remained unreduced.

The Lord Ordinary pronounced the following interlocutor and note:—

“ 9th July 1872.—The Lord Ordinary having heard parties' procurators, and considered the Closed Record and productions—Finds that the pursuer has not instructed any sufficient title to insist in the present action: Therefore dismisses the action, and decerns: Finds the defenders entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the Auditor to tax and report.

Note.—The Lord Ordinary has felt the question of title to sue here raised to be attended with considerable nicety, and if the object of the present action had been to rednce infeftments which stood in the way of the pursuer establishing a claim to the minerals in question, he would have had difficulty in holding that a general service was not a sufficient title to sue because although the decisions in such questions are in some respect contradictory— Horns, 6th Nov. 1741, D. p. 16,117, as contrasted with M'Callum, 21st February, 1793, D. p. 16,135—it appears to have been held in the later case of Carmichael, 15th Nov. 1820, that a general service is a sufficient title to challenge an investiture flowing from the party to whom the general service was expede, although there does not appear to have been in that case, any more than here, any objection to the party founding upon the general service entering as heir in special to the ancestor. The present, however, is not an action of that description. It is one of declarator, in which the pursuer seeks to have it declared that the minerals in the property belonging to the defenders, in which it is alleged that the deceased John Boyd, younger in Lochgreen, was last vest and seised, belong to the pursuer as heir of John Boyd; and the title in respect of which the pursuer seeks to have this declared is a service as heir in general of that John Boyd. Now the Lord Ordinary understands it to be an undoubted rule of law that a general service is inept to carry to the party served right to any lands in which the ancestor died infeft—Ersk. iii. 8, sec. 63. In such circumstances a special service seems to be essential to transmit the right, and as the object of this action is to have it declared that the pursuer is

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now the actual proprietor of the minerals in which John Boyd the younger died last vest and seised, and which are said to have ever since remained in hereditate jacente of John Boyd, the Lord Ordinary does not think that a general service can be held to be a proper title on which to found such an action.

But there is another ground on which it appears to the Lord Ordinary that the pursuer's title is objectionable. This action proceeds upon the assumption that the minerals are still in hereditate jacente of John Boyd younger of Lochgreen, who died in or about 1765. For it assumes that the precepts of clare constat under which the investiture was renewed in 1765 and 1814 were insufficient, notwithstanding the reservation in the superior's favour of the minerals therein contained, to confer upon the superior any right to the minerals which under the original feu-contract, had admittedly been conveyed away to John Boyd of Lochgreen. And in this latter assumption it is thought that the pursuer is correct; because it appears to have been deliberately settled in the case of Graham, January 27, 1842, that such a reservation in a charter of progress, but which was not in the original titles, was altogether ineffectual to deprive the owner of the dominium utile of his right to the minerals, or of any other part of the subject originally feued, unless it distinctly appeared from the deeds by which the investiture was renewed that there had been a new transaction then entered into, under which the parties intended so to alter the investiture. But it is not alleged that there was any such transaction entered into at any of the renewals of the investitures in this case, and the deeds themselves, which are produced, do not bear that there was. Now these precepts are founded on by the pursuer in the Record as showing that the minerals in question are still in hereditate jacente of John Boyd the first, who died in 1765. On a sound construction, however, of the precepts, they appear to the Lord Ordinary to disprove that fact. For if the reservation is ineffectual to entitle the superior to re-assert a right to the minerals as in a question with his vassal—and it was so ruled in the case of Graham—then the minerals must, it is thought, be held to have been here transmitted, in respect of the infeftment which followed upon the precepts of clare constat referred to in the condescendence, first, to John Boyd the second in 1765, and afterwards to John Boyd the third in 1814, by whom the property was sold in 1825. Whether the conveyance then granted in favour of Mrs Munro, and the subsequent transmissions, are apt to carry the minerals to the parties from whom the property was subsequently acquired by the defenders, or whether the minerals are still in hereditate jacente of John Boyd the third, appear to the Lord Ordinary to be the main questions raised upon the merits in the present action. But the defenders cannot, it is thought, be called on to discuss these questions, or to defend the titles on which they rely, in an action at the instance of a party whose only title is a general service to John Boyd the first of Lochgreen, who was not, in the opinion of the Lord Ordinary, the heir last vest and seised in the minerals.”

The pursuer reclaimed; and before the reclaiming note was heard he obtained from the Sheriff of Chancery an interlocutor finding it proved that he was nearest and lawful heir in special of the said John Boyd younger of Lochgreen, in the mines and minerals in the said subjects.

It was argued for the pursuer that the minerals were in hereditate jacente of John Boyd (I.), for while he was fully vest and seized in the mines and minerals, the right never went beyond him, being reserved in the precept of clare constat under which John Boyd (II.) was infeft.—Bell's Prin., § 1823. And so, the pursuer having served to John Boyd (I.), was in right of the minerals.

It was argued for the defenders that the minerals were not in hereditate jacente of John Boyd (I.), but were transmitted through John Boyd (II.) and John Boyd (III.) to them. The mines and minerals not being reserved in the original charter could not be so by the precept of clare constat.— Graham v. Duke of Hamilton, Jan. 27, 1842, 1 D. 482. So nothing remained in John Boyd (I.), and there was nothing which service could take up, and so service to him gave the pursuer no title to insist in the action.

At advising—