Scottish Court of Session Decisions

The Corporation of Paisley, as represented by the Provost, Magistrates, and Town Council, granted to Messrs Hugh Highgate & Company, oil refiners, Paisley, a feu of certain subjects in Murray Street, Paisley.

The feu-contract, which was dated 26th July 1872, contained the following reservation as to the minerals in the subjects:—‘But reserving always to the said Parliamentary trustees and their successors and assignees the whole coal and other metals and minerals within the said steading of ground, and power to work, win, and carry away the same, but not to occupy the surface.”

The contract also contained a building clause to the effect that the feuars were bound within two years of the date of entry to erect and to maintain on the subjects feued a building capable of yielding a yearly rental of at least triple the feu-duty paid.

Buildings were erected on the subjects, and were used by the feuars for the purposes of their business. By lease dated 22nd September 1885 the Corporation let to Alexander Speirs, fireclay goods manufacturer, and John Faill, as trustees for the firm of Speirs, Gibb & Company, the fireclay under the ground feued to Messrs Highgate. Under the lease the lessees were taken bound to relieve the Corporation of all damage caused by their operations in working the fireclay, and stringent regulations were laid down as to the method of working.

Subsidences having taken place on the lands occupied by Messrs Highgate in consequence of the working of the fireclay, they raised an action against the Corporation for declarator that the defenders were not entitled either by themselves or their lessees to work the minerals under their feu in such manner as to cause subsidence, for damages in respect of the injury caused thereby, and for interdict against future workings.

The defenders averred that the subsidences had been caused by the fault of their tenants, and pleaded—“(1) All parties interested not called.”

The Lord Ordinary ( Stormonth Darling) on 29th May 1896 sustained this plea, and continued the cause.

Opinion.—“The fuller discussion to which I listened in the cognate cases of Magistrates of Paisley v. Spiers, Gibb & Company has led me to reconsider the view which I was disposed to take (but to which I had not given effect by interlocutor) on the plea of ‘All parties not called’ in this case.

The main defence of the corporation is that the letting down of the surface is due to the fault of the lessees, and that for such fault they are not responsible. This defence makes it proper, I think, that the lessees should be called. As a general rule, a landlord is not liable for the consequences of his tenant's act or default unless it be the necessary result of the lease having been granted ( Westorn v. Tailors of Potterrow, 1 D. 1224; Lyons v. Anderson, 13 R. 1020). Nor is this rule affected by the circumstance that the pursuers here stand in the relation of vassals to the defenders. A superior who feus ground for building without special stipulation may not be entitled himself to do anything that will bring the buildings down, but he does not warrant support to his feuar against the illegal acts of all and sundry. Accordingly, in the case of Tassie v. Magistrates of Glasgow, in 1 S. (June 18, 1822), where the pursuers were the tenants of the Corporation, and complained of operations by other tenants, the Magistrates were assoilzied and the actual wrongdoers were held liable.

It appears from the defences of the mineral tenants to the action of relief at the instance of the Magistrates against them, that they mean to maintain that the subsidence was caused not by their operations but by the operations of their predecessors. It is right, I think, that they should have the chance of substantiating this defence, if they can, in the present action; otherwise the question might have to be tried over again in the action of relief.

I shall therefore sustain the first plea-in-law for the defenders and continue the cause, in order to give the pursuers an opportunity, if so advised, of bringing a supplementary summons against the mineral tenants.”

Argued for reclaimers—The defenders

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having feued the ground and reserved the minerals were liable for any injury caused by withdrawal of the support, and warranted the feu against damage caused by themselves or their lessees— Buchanan, &c. v. Andrew, March 6, 1873, 11 Macph. (H. of L.) 13. The pursuers had called the superiors, and averred that they had damaged the pursuers' property; they might be wrong in this, but that was not a reason for compelling them to call third parties, against whom they made no averments. The Court might in some cases order this to be done, e.g., when the defenders or the third parties might be prejudiced by the failure to call the latter, but there was no question of that here, for the defenders here were raising an action of relief against their tenants, while the case would not constitute res judicata against the latter. The cases quoted by the Lord Ordinary did not conflict with this view— Westorn v. Tailors of Potterrow, supra, only showed that this action might be bad, and was clearly distinguishable, as was Lyons v. Andersen, supra, there being no obligation on the landlord making him primarily liable such as there was here.

Argued for respondents—The case might result in the tenants being found liable, and accordingly they should be called. If it could be shown that it was prudent to call the tenants to avoid the expense of another action, then it should be done— Hamilton v. Hamilton, March 20, 1877, 4 R. 668; Neilson v. Wilson, March 12, 1890, 17 R. 609. There was no case in which a landlord had been found liable to the surface owner for damage caused by his tenant having gone outside the obligations of his lease, unless the landlord had specially bound himself to indemnify against such damage. The defenders had undertaken no such specific obligation, but there was merely a reservation of a right by them as superiors. Accordingly, while they might be liable for damages done by themselves, they were not so for that done by their tenants. There were numerous cases similar to this where the tenant had been called and rightly so— Hamilton v. Turner and Others, July 19, 1867, 5 Macph. 108; White's Trustees v. Duke of Hamilton, March 10, 1887, 14 R. 597.