Scottish Court of Session Decisions

John Dunlop of Rosebank acquired the lands of Smiddy Croft by disposition dated 9th November 1792. In 1793 the Duke of Hamilton and Dunlop entered into a contract of excambion of certain lands. As the ducal estates of Hamilton were entailed, the excambion had to be preceded by an application in the Sheriff Court for authority to enter into it under the Montgomery Act (10 Geo. III. c. 51), which was accordingly done by joint-petition to the Sheriff of Lanarkshire by both of the contracting parties. The Sheriff having, in terms of the Act, remitted to two persons of skill to inspect and adjust the value of the lands proposed to be excambed, and to settle the marches and report, authorised the excambion in terms of the report, which stated the lands proposed to be excambed to be of equal value, and recommended the reservation of minerals after mentioned. The parties then concluded a contract of excambion whereby, on the narrative, inter alia, that Dunlop was proprietor of the lands of Smiddy Croft, nearly adjoining to the policy and pleasure-grounds of Hamilton Palace, and that the Duke was on that account desirous of acquiring them, and was willing to excamb for them a part of equal value of his lands of Mid and East Coatts, Dunlop disponed in excambion to the Duke part of the lands of Smiddy Croft, with this reservation, viz.—“Reserving to the said John Dunlop and his heirs and successors in the foresaid parts of the lands of Mid and East Coatts, if conveyed with that priviledge, the liberty of working coal and other metals, fossils, and minerals in the foresaid parts of the lands of Smiddy Croft above disponed, by pitts, shanks, or eyes put down in such lands adjoining to the said lands of Smiddy Croft as they may acquire hereafter; but declaring allways, as it is hereby particularly declared, that they shall have no liberty to pitt, shank, or make eyes, roads, ways, or passages to or from the same, for working of any coal, or other metals, fossils, and minerals upon the surface of the foresaid part of the lands of Smiddy Croft, unless by the express consent of the said Duke, his heirs and successors therein.” The Duke on his part disponed in excambion to Dunlop certain parts of the lands of East and Mid Coatts, which lay at a corner of his estates, distant from the policy and pleasure grounds. The minerals therein were then let to tenants named Farie, and the contract of exoambion reserved the minerals to the Duke in the following terms:—“Reserving to the said Duke, his heirs and successors, the liberty of working coal and other metals, fossils, and minerals in the foresaid parts of the lands of Mid and East Coatts above described, and of making roads, ways, and passages to and from the said workings, the said Duke or his foresaids, or their tacksman of the said works, being obliged to pay to the said John Dunlop, his heirs and successors, for such surface damage as they may incur by the said workings and roads to and from the same, according as the said damages shall be ascertained by two men to be mutually chosen by the parties, and that this reservation as to surface working and roads, ways, and passages shall continue during the present lease allenarly set of the said coals to James Farie senior and James Farie junior of Farm, in terms of the said leases; and also reserving to the said Duke, his heirs and successors, after the expiration of the leases to the said James Farie senior and James Farie junior, liberty of working whatever coal, and other metals, fossils, and minerals, may remain in the foresaid parts of the lands of Mid and East Coatts above described, by pitts, shanks, or eyes put down in their grounds, or such others as they may acquire adjoining to the lands above disponed to the said John Dunlop; but not to pitt, shank, or make eyes, roads, ways, and passages for such workings upon the surface of foresaid grounds after the expiration of the leases to the said James Farie senior and James Farie junior, unless by consent of the said John Dunlop, his heirs and successors.”

John Dunlop took infeftment by instrument of sasine in the lands of East and Mid Coatts disponed to him by the contract of excambion. In 1801 he sold to David Dale his estate of Rosebank, along with the parts of the lands of East and Mid Coatts conveyed to him by the Duke. There was no mention in the transaction of the minerals in Smiddy Croft reserved to him by the contract of excambion.

Dunlop died in 1820. The pursuer of this action, James Dunlop of Tollcross, as his grandnephew, was his nearest and lawful heir, and expede a service to him as such.

In July 1883 the present action of declarator, interdict, and payment was raised by James Dunlop and James Wyllie Guild, C. A., in Glasgow, the trustee under a trust-deed granted by James Dunlop & Company, ironmasters in Glasgow, and the said James Dunlop (who was the sole partner) as an individual, against the Duke of Hamilton, a successor of the Duke with whom the contract of excambion was made. The conclusions of the summons were for declarator that the whole coal and other metals, fossils, and minerals in and under so much of the lands of Smiddy Croft as was conveyed to John Dunlop by the contract of excambion, belonged to and were vested in John Dunlop at the time of his death, and now belonged in property to the pursuers, and that they had “the sole and exclusive right of working, winning, and carrying away the said coal,” subject only to the conditions in the contract of excambion; for interdict against the defender working the coal himself or by servants

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or tenants; for decree ordaining the defender and his servants and tenants to remove from all pits, mines, workings, ways, and levels therein; to account for his intromissions with the coal and other minerals; and for payment of £20,000 as the balance of his intromissions.

The pursuers alleged that the minerals of Smiddy Croft had remained vested in John Dunlop till his death in 1820, and that the pursuer James Dunlop had now right thereto; further, that neither the defender nor any of his predecessors had in any way possessed these minerals, or let or worked them either during the life of John Dunlop or since his death till within a few years of the raising of this action; that the defender had recently let the coal in certain lands adjoining Smiddy Croft to be drawn through the mineral strata under these lands; and that he had recently let the minerals in Smiddy Croft itself to a tenant, who was in course of working the same.

The defender admitted that he had recently let the minerals in Smiddy Croft to a tenant. He set forth that he had, after acquiring the dominium utile of Smiddy Croft, consolidated the same with the superiority thereof, of which he was already the proprietor, and had possessed the said lands for upwards of the prescriptive period on the consolidated title.

The pursuers pleaded—“(1) John Dunlop having acquired the minerals in question by the disposition of 9th November 1792, and never having been divested thereof, the pursuer James Dunlop, as his nearest and lawful heir, is in right of the said minerals, and as the defender has let the same and otherwise intromitted therewith, and disputes the pursuers' right thereto, the pursuers are entitled to have decree in terms of the conclusions of the summons. (2) Upon a sound construction of the said contract of excambion, the property of the minerals in and under the lands of Smiddy Croft therein mentioned remained vested in the said John Dunlop, subject only to the limitations of the modes of use expressed in the said contract.”

The defender pleaded, inter alia—“(1) No title to sue. (4) The said reserved right being one of servitude has been extinguished non utendo. (5) Separatim, The said right being a mere personal privilege, and by the terms thereof only conceived in favour of John Dunlop and his heirs succeeding in the lands of Mid and East Coatts, so long as they remained proprietors thereof, the defender should be assoilzied.”

The Lord Ordinary pronounced this interlocutor:—“Finds and declares, interdicts, prohibits, and discharges, and decerns and ordains in terms of the conclusions of the summons, other than the conclusion for count, reckoning, and payment,” &c., and granted leave to reclaim.

“ Opinion.—The question is, whether the right reserved to John Dunlop by the contract of excambion of 1793 in the coal and other minerals in the lands of Smiddy Croft is a heritable right transmissible to his heirs, or a privilege transmissible only by special assignation, and which has fallen in consequence of its not being assigned?

By the contract of excambion the lands of Smiddy Croft, which adjoined the pleasure grounds at Hamilton Palace, and which belonged in property to John Dunlop of Rosebank, were excambed for a part of the lands of Mid and East Coatts, which were part of the entailed estate of Hamilton. The general import of the deed appears to be that the surface of one parcel of the lands shall be given against the surface of the other, the minerals under each being reserved to the original owner, under certain conditions as to the manner in which the minerals shall be worked. At the date of the contract the coals in Mid and East Coatts were under lease to James Farie of Farm, and the Duke of Hamilton conveys the lands, ‘reserving to the said Duke, his heirs and successors, the liberty of working coal and other metals, fossils, and minerals in the foresaid parts of the lands of Mid and East Coatts above described, and of making roads, ways, and passages to and from the said workings,’ surface damages to be ascertained by arbitration, but with a declaration that the ‘reservation as to surface working and roads should continue’ only during the existing lease, and that after its expiration the Duke and ‘his heirs and successors should have the liberty of working whatever coal and other metals, fossils, and minerals might remain in the foresaid parts of the lands of Mid and East Coatts above described, by pits, shanks, or eyes put down in their grounds, or such others as they may acquire adjoining to those lands proposed to be given off to the said John Dunlop, but not to pit, shank, or make eyes, roads, ways, or passages for such workings upon the surface of the grounds so proposed to be given off to the said John Dunlop,’ except of consent and with a special exception of a particular part of the lands.

The minerals in Smiddy Croft were not under lease, so that there was no existing right to be protected, and they are conveyed with a reservation which is thus expressed—‘Reserving to the said John Dunlop, and his heirs and successors in the foresaid parts of the lands of Mid and East Coatts, if conveyed with that privilege, the liberty of working coal and other metals, fossils, and minerals in the foresaid parts of the lands of Smiddy Croft above disponed, by pits, shanks, or eyes put down in such lands adjoining to the said lands of Smiddy Croft as they may acquire hereafter; but declaring always, as it is hereby particularly declared, that they shall have no liberty to pitt, shank, or make eyes, roads, ways, or passages to or from the same, for working of any coal or other metals, fossils, and minerals upon the surface of the foresaid part of the lands of Smiddy Croft, unless by the express consent of the said Duke, his heirs and successors therein.’

It is maintained for the pursuer that the right so reserved by Mr Dunlop is a right of property in the minerals, restricted only by the condition that the reservation shall not carry with it any accessory right to use the surface which has been conveyed, for the purpose of reaching the estate below the surface which has been reserved. On the other hand, it is maintained by the defender that the property in the minerals was conveyed to his predecessor under burden of a privilege which is said to be an incorporeal right of the nature of servitude. It is clearly not a servitude, because the right is not a right to take coals for the service of a particular tenement or for a definite purpose, but a general and unlimited right to work, use, and dispose of the coal. Nor is it constituted as a new right by the contract of excambion. It is reserved, as it stood, in the disponer antecedently to the contract. The conveyance

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therefore operates upon the surface alone, and carries no right in the minerals to the disponee. In the case of Bain v. The Duke of Hamilton, 3 Macph. 821, it was held that a reservation in a feu-charter of ‘full power, right, and liberty to win coals and coalheughs within the bounds’ of the lands granted out, was an effectual reservation of the entire right to the coals which was previously vested in the superior, and that no right in the coals had been transferred to the grantee. There appears to me to be no solid ground of distinction between the present case and that of Bain. And in so far as regards the reservation by the Duke of Hamilton, I do not understand it to be suggested that there is any distinction. It is not said that any right in the coals and other minerals below the lands of Mid and East Coatts was conveyed to Dunlop and his heirs, and by the same reasoning no right to the coals and minerals in Smiddy Croft can be held to have been conveyed to the Duke of Hamilton.

But the contention is that by force of the words ‘if conveyed with that privilege,’ the reserved right is made dependent on the continued possession of Mid and East Coatts, and therefore that as these lands have been conveyed without mention of the privilege, the right must be held to have fallen. There can be no right, it is said, in the heir of John Dunlop, because he is no longer proprietor of Mid and East Coatts, and there can be no right in the present owners of these lands, because the privilege has not been conveyed.

I think the argument untenable. One could understand a question arising, although none appears to have arisen, between the heir and the singular successor of Dunlop. The lands might have been conveyed in such terms as to suggest a doubt whether the right to the coals in Smiddy Croft had been conveyed along with them. But it is impossible that the failure to convey to the purchaser of Mid and East Coatts should operate as a conveyance to the Duke of Hamilton. No right to work, use, or dispose of these coals was conveyed to the Duke by the contract of excambion. For Dunlop reserved his right entire as it stood in him before the contract. And nothing has happened since by which the right can be held to have passed.

But if the reserved right has not been conveyed away to anyone by John Dunlop, it passed at his death into his hœreditas jacens, and now belongs to the pursuer. The notion that it lapsed by the conveyance of Mid and East Coatts is unintelligible. It could not pass otherwise than by conveyance or inheritance. It was not disputed in argument that Dunlop himself would have still retained it if he had sold these lands in his lifetime. If he had acquired adjoining land which enabled him to reach his coals, and had been engaged in working them when he sold Mid and East Coatts, it can hardly be suggested that his right to work would instantly have ceased and determined in consequence of the sale, and if it remained in him notwithstanding the sale, it follows that it continued in him till his death, and passed into his hœreditas jacens.”

The defender reclaimed, and argued—The case was distinguishable from that of Bain, on which the Lord Ordinary had based his judgment. He was wrong in refusing to give effect to the defender's argument, which he had clearly stated in his note. The reservation here was clearly meant to be something less than a right of property, and the deed pointed out what it was, viz., a privilege. It was therefore an incorporeal right, and attached to possession of the lands of Coatts, and not having been transmitted, fell, and the right of property was thereafter in the defender, unburdened. The distinction between a reservation of a right of property in minerals and of a mere privilege of working them was pointed out by the Lord Chancellor in Duke of Hamilton v. Graham, July 28, 1871, 9 Macph. H.L. 102; and the Lord President in Harvie v. Stewart, November 17, 1870, 9 Macph. 158; also Davidson v. Duke of Hamilton, May 15, 1822, 1 S. 411, where nothing was reserved but the “privilege and liberty of winning” coals.

The pursuers replied—The nature of the right here reserved was one of property, and no distinction could be founded on the words of the clause here between a right of property in the minerals and an incorporeal right of privilege to work them. The case was ruled by Bain v. Duke of Hamilton ( supra cit).

Additional authority— Duke of Hamilton v. Bentley, June 29, 1841, 3 D. 1121.

At advising—