Scottish Court of Session Decisions

This was a note of suspension and interdict at the instance of Robert Aytoun, civil engineer; James Aytoun, 7 Polwarth Terrace, Edinburgh; and James Patten, advocate, surviving and accepting trustees acting under the trust-disposition and settlement

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executed by the deceased James Aytoun, advocate, and others, against The Lochore and Capledrae Cannel Coal Company, Limited, incorporated under the Companies Acts, 1862 and 1867, craving the Court to “interdict, prohibit, and discharge the respondents from removing from the mineral workings in the lands and estate of Capledrae, of which they are tenants under the complainers, the machinery and plant belonging to them presently upon the said lands or in the said workings, or any part thereof, and in particular from removing from the said workings the engines and boilers, drums, wheels, ropes, and other winding gear, the rails, sleepers, plates, switches, brakes, and other fittings of the railways, tramways, and drawing rods, the steam-pipes, water-pipes, rods, cranks, pumps, and other pumping gear, aye and until the termination of a lease entered into between the authors of the complainers and the respondents, dated 11th, 14th, 16th, and 17th October 1872, without the complainers exercising their option to take the said machinery and plant at a valuation, in terms of the said lease; and further, during the subsistence of the said lease, from allowing the water to rise in the said workings above the level at which it stood at 20th August 1888, or the water levels, drawing roads, wall-faces, and air-courses to become obstructed, or the said workings, or any part thereof, to become disordered or insecure; or to do otherwise in the premises as to your Lordships shall seem proper.”

The respondents were the lessees of coal and minerals in the lands and estate of Capledrae and others of which the complainers were proprietors under a lease for 31 years from 13th July 1872, which contained a declaration “that the company (the respondents) shall be entitled to give up this lease at the end of the fourth year hereof, and at the end of every second year thereafter during the currency hereof, on giving six months' notice in writing to the proprietors or their known agents of their intention to avail themselves of the breaks in the lease at any of the periods above specified.” Power was given to the respondents by the said lease to search for, dig, work, win, store, and carry away the coal and others thereby let, to erect machines or engines for drawing the water and coal, to calcine ironstone and coke coals, and to make roads, railways, reservoirs, watercourses, ponds, and drains for the purposes of the colliery, within any part of the coalfield thereby let; and in general to do everything necessary for carrying on the operations of the colliery and the working of the minerals, under certain conditions and restrictions therein specified. The rent payable by the respondents under the said lease was a fixed rent of £1000 per annum, payable half-yearly at 13th January and 13th July of each year, beginning with 13th January 1873 for the half-year from the commencement of the lease to that date, “and that whether the company work the minerals or not;” or, in the option of the lessors, and in lieu of the said fixed rent, certain lordships. The respondents further bound themselves to fill up or close up such pits as might no longer be of use to the colliery, under the declaration “that it shall be in the option of the proprietors to require the tenants to leave open any pits they may have ceased to use, so that they may, by themselves or others, enter into and continue the working of the minerals immediately on the termination hereof, or to order them to be left fenced with a substantial stone and lime wall not less than six feet in height from the surface of the ground.” The respondents further bound themselves “to fit, win, and work the said coals in a regular and systematic manner, and that all pit levels shall be properly conducted, and all water-levels, drawing roads, wall-faces, and air-courses of the going workings shall be kept clear, readily accessible, and well ventilated, and the whole workings shall be conducted in a fair, orderly, and regular manner, having always the dip levels, wall-faces, and roads from the wall-faces to the pit bottoms from which the minerals are raised, clear and patent and the respondents further obliged themselves “to keep the whole going workings upred, secure, and in working order at all times, and to leave the same in the like good regular course and condition at the expiration or sooner termination, as the case may be, of this lease, so that the proprietors may immediately enter upon and carry on the workings of the said minerals, either by themselves or their tenants;” and the respondents obliged themselves “to leave the whole coal workings, houses, buildings, and machinery connected with the colliery at the termination hereof in good habitable condition and state of repair.” It was also by the said lease provided and declared “That at the termination of the lease, either at the natural ish thereof or in any of the events above stated the proprietors shall, upon giving three months' previous notice to the Company (the respondents), have right and option to take the whole or any part of the engines, machinery, utensils, railways and tramways, and apparatus on the lands connected with the works of this lease either above or below ground at a valuation to be made by arbiters or their oversman as aforesaid, but in the event of their taking a part only they shall be bound to take the whole at any one pit or mine, and shall not take a part which would render the remainder useless or greatly deteriorated in value, but in the event of the proprietors not declaring their option to take the whole or any part of the said machinery, plant, and others the Company (the respondents) shall have liberty to remove the same, and shall be allowed three months after the termination of this lease for disposing of and carrying away the same, or for disposing of any stock of coal that may then be on the ground, and they shall have all reasonable facilities for such removal or disposal that do not unduly interfere with the carrying on of the colliery works.”

The respondents entered upon possession of the subjects let at 13th July 1872, and they

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shortly thereafter commenced working the cannel or gas coal therein and continued to do so down at any rate to the date of the correspondence mentioned below. No alteration took place on the terms and conditions of the lease except a reduction in the rate of lordship, and none of the breaks, including that which occurred at 13th July 1888, were taken advantage of by the respondents. Upon 20th August 1888 the respondents' secretary wrote to the agent of the complainers intimating that the respondents intended “shortly to stop work, draw the rails and pipes, and allow the water to rise.” And he further wrote to the agent of the complainers on 6th September 1888—“The mine at Capledrae on which the machinery is planted will immediately, in the ordinary management of the colliery, cease to be a going mine, and the machinery on it will not then be further required for it. The Company has every wish to meet the fair desires of the proprietors, and if the latter think the machinery is of any use to them to acquire this Company are prepared to give them the option of acquiring it now in the same way as if the lease had come to its natural expiry by lapse of time. But if the landlords do not avail themselves of this offer the Company will not continue to keep up machinery which in the ordinary and fair management of the colliery they do not further require to keep up, and they hold themselves at liberty at once to remove all the machinery, including pumps, on the mine. They will refrain from doing so for a period of fourteen days to enable your clients either to accept the offer above made or, if they think their rights in any way infringed, they may take steps to vindicate these supposed rights. Failing the above the Company will remove the machinery as soon as it has finally ceased to be required, which, as I have said, will be at a very early date. The subject of the lease will then be exhausted, except that the coal on the hill will remain for disposal.”

The complainers averred that “Were the respondents, as they propose, to remove the engines and machinery and draw the rails, &c. in the mines, levels, and drawing roads, and the pipes, &c. in the pumping mine, they would not merely be dismantling an exhausted and abandoned portion of the workings, but would be dismantling the whole workings, and were they to allow the water to rise in the mine, as indicated in their letter of intimation of 20th August 1888, they would not merely drown out an exhausted and abandoned portion of the workings but the presently going workings, and would prevent them being prosecuted in the due order and course until the mine was again pumped clear. In either case the respondents would render it impossible that the complainers should, either by themselves or others, enter into and continue the working of the minerals immediately on the termination of the lease either at its expiry or sooner in the event of the respondents taking advantage of the breaks provided. The minerals which are the subject of the said lease are not exhausted. Notwithstanding the terms of the intimations referred to in statement 11, the respondents' output from the mine has been larger since August 1888 than during the corresponding period of the previous year. The complainers are entitled on the termination of the lease to enter upon and continue the working, and they will either do so by themselves or by new tenants. Whether the respondents work the said minerals or not they are bound in terms of the said lease to keep the workings upred, secure, and in working order at all times, and to leave the same in the like good regular course and condition at the expiration or sooner termination of the lease. The respondents are not entitled to remove the machinery without which the water cannot be kept down nor the workings kept in good order and ready for use at the termination of the lease, except on failure of the complainers at the termination of the lease to exercise the option conferred upon them thereby, and they are not entitled now to require the complainers to declare their said option. As the respondents intimate that they intend at once to allow the water to rise, and to remove the plant and machinery of the mine, the complainers are entitled to interdict as craved.”

The respondent in a separate statement of facts averred—“The only seam of commercial value or workable to profit in the lands embraced in the lease is the seam known as the Capledrae Cannel Seam, let to respondents by the said lease and worked by them by the mines and workings in question. The workings were formerly carried on by what is now termed the old mine. After the date of the said lease the respondents opened what is called the new mine, about half a mile to the west of the old mine, the workings from the new mine being connected with those from the old mine. The new mine was equipped with machinery by the respondents. The coal in question is to a large extent broken up and destroyed by the eruption of whin-stone or igneous rock, and at present nearly the whole of the coal let to the respondents or workable by said mines is exhausted.”

The complainers pleaded—“(1) The respondents being bound, in terms of the said lease, to keep the whole going workings in the mineral field thereby let, upred, and secure, and in good working order at all times, and to leave the same in like order and condition at the expiry or sooner termination of the said lease, so that the complainers may enter upon and continue the said workings, and the said lease being still current, the respondents are not entitled to remove the machinery and plant in the said workings, and to allow the water to rise. (2) The said lease being still current, the complainers are not now bound to exercise their option to take the said machinery and plant at a valuation. (3) Generally, the course which the respondents have notified the complainers of their intention to pursue being in contravention of the said lease, the complainers are entitled to interdict as craved.”

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The respondents pleaded—“(1) The complainers' averments are irrelevant. (2) The complainers' material averments being unfounded in fact, the note should be refused. (3) The whole actings and proposals of the respondents being warranted by the lease, the note should be refused.”