Scottish Court of Session Decisions

John Thomson brought an action in the Sheriff Court of Lanarkshire, at Airdrie, against “William Walkinshaw, Hartley Grange, Winchfield, Hants, England, and John Fisher, accountant, Glasgow, trustees of the late John Wilson, junior, of Arden,” in which he craved decree against “the above-named defenders” for payment of £1000.

The pursuer was the proprietor of the dominium utile of a small piece of ground, part of the lands of Braefoot, in the parish of Shotts and county of Lanark. The defenders, as trustees of the late John Wilson, junior, were the superiors of the pursuer's feu.

The pursuer averred—“(Cond. 3) The defenders, a number of years ago, leased to the Shotts Iron Company the Slateyband ironstone in the lands of Arden, including, it is believed, the said ironstone in and under the pursuer's feu, and received from the Shotts Iron Company payment of the lordship or value of said ironstone; but the defenders never had any right or title whatever to work, win, or carry away the ironstone or other minerals from or through the pursuer's said property, or to lease the same to the Shotts Iron Company, or to receive said payment.… (Cond. 4) In the year 1882, or at some other time to the pursuer unknown, and without his knowledge or consent, the Shotts Iron Company encroached upon and worked out the Slateyband ironstone or other minerals underlying part of the subjects above described and belonging to the pursuer. These operations, which, it is believed, were conducted on the ‘longwall’ system, otherwise total excavation of the mineral, without leaving any of it to support the surface and buildings thereon in said area, have caused ‘sits’ or subsidences of the surface, whereby serious and permanent injury and damage have been caused to the said property and buildings erected thereon. The ground intended by the pursuer for building upon has been rendered unfit for that purpose, while the dwelling-houses already erected upon the ground have been cracked or rent

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from top to bottom in an irreparable manner, and rendered unsafe and uninhabitable, the tenants having had to be removed.… (Cond. 5) The pursuer has sustained actual loss and damage by said encroachment and operations to an extent not less than £600 sterling, while he claims as compensation for illegal seizure or compulsory ejectment from his property and birthplace, for loss of ground for building purposes, loss of rents since May last, value of minerals abstracted, &c., the modified sum of £400 sterling, in all £1000 sterling.”…

The defenders stated in answer—“(Ans.3) That by lease dated 24th May and 16th June 1870, Robert Aitken and Walter Mackenzie, accountants in Glasgow, the trustees of the deceased John Wilson, senior, of Dundy van, the then superiors of the lands feued to pursuer, let to the Shotts Iron Company all and whole the seam or seams of ironstone known as the ‘Slateyband,’ within the boundaries coloured red on the plan appended to said lease, and signed as relative thereto, so far as belonging to the lessors, and might be found therein, in the lands of Arden, in the parish of New Monkland and county of Lanark, but under the declaration that the said boundaries were not warranted or guaranteed as correct. It was further provided by said lease that the lessees should be bound to satisfy all damages which might be caused to the surface of the ground, or buildings thereon, and which should be sustained by the lessees, their tenants, or others through the lessor's operations, whether above or below ground, all as said lease, which is hereby referred to, more fully bears. The Shotts Iron Company worked the minerals and paid the lessors lordships therefor as provided for in said lease. It is further explained that when the lease was granted the lessors overlooked the fact that the minerals in pursuer's feu-right had not been reserved, and in including said minerals—subject always to the terms of the lease—acted on a mistake.… (Ans. 4) Believed to be true that the Shotts Iron Company encroached upon and worked the ‘Slateyband’ ironstone underlying part of the subjects belonging to the pursuer. Quoad ultra denied. … (Ans. 5) The pursuer is called on to condescend on the nature of the damage and amount of minerals worked out, and it is averred that defenders cannot be made responsible for any sum beyond the royalties paid them by the Shotts Company, in respect of the ironstone removed from pursuer's feu.”…

The pursuer pleaded—“(1) The granting by the defenders in said mining lease of permission to work or excavate under pursuer's feu, with the consequent encroachment and operations condescended on, being wrongful and illegal, the defenders are liable to the pursuer for the loss, damage, and injury he has thereby sustained.”

The defenders pleaded—“(1) No jurisdiction. (2) No title to sue. (3) All parties not called. (4) The pursuer's statements are irrelevant.”

Upon 26th February 1895 the Sheriff-Substitute ( Mair) sustained the first, third, and fourth pleas-in-law for the defenders, and dismissed the action.

The pursuer appealed, and argued—(1) Jurisdiction. The Sheriff-Substitute had sustained this plea of the defender, on the ground that one of the defenders was an Englishman, but the Sheriff Court Act 1876 gave power to execute, edictally or otherwise, a warrant against an Englishman. If power to cite an Englishman was given, there must be power in the Sheriff Court to try the case in which he was cited. This defender had been competently cited in an action relating to lands lying within the sheriffdom, and it had been decided that in such a case the Court had jurisdiction over him— Culross Water Supply Committee v. Smith Sligo's Trustees, November 6, 1891, 19 R. 58. Where there were more than one trustee or executor in the administration of an estate in Scotland, and one of them, or at least the managing trustee, resided within a sheriffdom, he could be competently cited in that Court — Black v. Duncan, December 18, 1827, 6 S. 261; Kerr v. Halliday's Executors, December 17, 1886, 14 R. 251. The effect of personal citation was explained in Sinclair v. Smith, July 17, 1860, 22 D. 1475. The contract between the Shotts Iron Company and the defender, from which the damage complained of arose, was carried out in Scotland. Even in the case of a quasi delict, it had been held that the Sheriff Court had jurisdiction over a person who did not reside within the sheriffdom— Kermick v. Watson, July 7, 1871, 9 Macph. 984. (2) All parties not called—The pursuer here called the only parties with whom he had any relation. They were the persons who gave the Shotts Company authority to act as they did, although wrongfully, and if they were joint delinquents, the pursuer could select which party he would sue. The case was properly brought against the defenders, because they were liable for the damage done to their feuar's property — Governors of Stewart's Hospital v. Waddell, July 2, 1890, 17 R. 1077, (3) Relevancy — The pursuer's averments as to damage were as specific as in the circumstances they could be expected to be.

The defenders argued—The Court of Session was the commune forum for all foreigners, vide Erskine, i. ii. 18. If, however, there was personal citation within the jurisdiction of the Sheriff, and either a delict or the execution of a contract to be considered, the Sheriff would probably, on the authorities, have jurisdiction; in this case, however, there was no personal citation. In the cases cited by the pursuer it was to be noticed that the persons cited were only resident in another county in Scotland, and not in a foreign country. In cases analogous to this the Court of Session had been held to be the proper tribunal— Kennedy v. Kennedy, December 9, 1884, 12 R. 275; Ashburton v. Escombe, December 13, 1892, 20 R. 187; M'Gennis v, Rooney, March 20, 1891, 18 R. 817; Robertson's Trustees v. Nicholson,

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July 13, 1888, 15 R. 914. (2) All parties not called. The defenders were not the proper respondents in this action. They were sued as trustees, and could only be personally responsible for their own wrongdoing in their management of the trust-estate, not for that of third parties. It was not said that they were wrongdoers; it was the pursuer's case that the Shotts Iron Company had caused the damage; they therefore were the proper persons to answer for the alleged damage. (3) Relevancy. In any case, the pursuer ought to have made more specific allegations of what had been done and the damage caused.

At advising—