Scottish Court of Session Decisions

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Cite as: [1890] ScotLR 27_824, [1890] SLR 27_824

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SCOTTISH_SLR_Court_of_Session

Page: 824↓

Court of Session Innner House First Division.

Saturday, June 28. 1890.

Lord Kinnear, Ordinary.

27 SLR 824

Burns

v.

Harvie and Others.

Subject_1Landlord and Tenant
Subject_2Mineral Tenant
Subject_3Compromise of Action
Subject_4Res Judicata.
Facts:

In an action by a mineral tenant, holding under a lease dated in 1862, against the proprietor and mineral tenants of a neighbouring estate for payment of damages for loss of coal alleged to have been illegally worked out by the latter, the defenders pleaded res judicata in respect of a decree pronounced in 1888 in an action at their instance against the proprietor from whom the pursuer derived right, which decree had been pronounced in terms of a compromise arrived at between the parties.

Held that the pursuer was not bound by terms of the decree, as he had not been a party to the compromise, and plea of res judicata repelled.

Headnote:

In 1887 William Harvie, heir of entail in possession of the estate of Brownlee, and John Wilson and others, his mineral tenants, brought an action against Sir Windham Anstruther, the proprietor of the neighbouring estate of Mauldslie, and the trustees of the deceased James Thornton, sub-tenant of minerals on the estate, for payment of damages for loss of minerals alleged to have been illegally worked out by the defenders under a road which the pursuer alleged to be part of the estate of Brownlee. Decree having been pronounced in favour of the defenders in the Outer House, the pursuer reclaimed, and before the case was heard in the Inner House a compromise was arrived at, and decree was thereafter pronounced by the Second Division in terms of a joint-minute by which the boundary between the two estates was fixed so as to include the road in question in the estate of Brownlee. The dependence of this action was intimated to Michael Burns, to whom the coal and other minerals within the entailed lands and barony of Mauldslie had been let for thirty-one years by lease dated 15th August 1862. Mr Burns however did not become a party to the action or to the compromise, but assumed the position shown in the following letter addressed by him on 20th December 1887 to the agents of Sir Windham Anstruther—“I beg to remind you that any arrangement Sir Windham Anstruther may make with Mr Harvie about withdrawing from the present action can have no effect whatever upon my claims, either against him or Mr Harvie, with regard to the road coal.”

The present action was raised by Mr Burns against Mr Harvie and the Messrs Wilson, his tenants, for payment of damages for loss of coal alleged to have been illegally excavated by the defenders under the road in question.

The defenders founded on the decree pronounced in the previous action and pleaded—“(1) No title to sue. (2) Res judicata.
Page: 825↓
(3) The defender Mr Harvie having been found entitled to the coal in question in a litigation with the pursuer's author, the defenders are entitled to absolvitor.”

On 12th March 1889 the Lord Ordinary ( Kinnear) repelled the first, second, and third pleas in law for the defenders, and allowed the parties a proof of certain averments made in record.

On 12th April the Lord Ordinary allowed the parties a proof of their respective averments on record with reference to the property of the minerals alleged by the pursuer to have been wrongously excavated and removed by the defenders.

The defenders reclaimed, and argued—The question between the parties had been settled by the decree pronounced in the previous action. Having settled the question with the proprietor, the defenders were not bound to go into the question with a mineral tenant whose lease did not define the boundaries of the minerals thereby let. The pursuer's proper remedy was an action of damages against his author.

At advising—

Judgment:

Lord President—As regards the first and second pleas founded on the compromise agreed to by Sir Windham Anstruther, the pursuer's landlord, and certain other parties, in the action by the present defender against them, that action was an action for payment of money as the damages sustained by Mr Harvie by reason of the coal under his lands being worked out, but Mr Burns was not a party to it. The action was intimated to him, and the position he took up was that whatever might happen between the parties to the action it could not affect him, because he had got a lease from Sir Windham Anstruther, so he declined to take a part in the proceedings. It is not of any importance to inquire what would have been the effect of a judgment of the Court without a compromise having been arrived at, because what happened was that the parties compromised the action and made an agreement, as if the action had been an action of declarator that the boundaries between their lands were so and so. Of course that agreement is binding on the parties who made it, but it is not res judicata in a question with the present pursuer, who brings this action to recover damages for loss sustained by him owing to the working out of minerals, which he alleges to be his under his lease. The first and second pleas for the defenders are therefore I think, plainly untenable, and not to be listened to.

Lord Adam and Lord M'Laren concurred.

Lord Shand was absent.

The Court adhered.

Counsel:

Counsel for the Defenders and Reclaimers— R. Johnstone— J. A. Reid. Agents— Buchan & Buchan, S.S.C.

Counsel for the Pursuers and Respondents— Guthrie— Low. Agent— P. Morison, S.S.C.
1890