Scottish Court of Session Decisions

The Duke of Devonshire and others, testamentary trustees of the late Duke of Hamilton, and Messrs William Barr & Sons, colliery proprietors, North Nether-burn, Lanarkshire, raised an action against The Woodside Coal Company and Joseph Hutchison of Woodside, Lanarkshire, the only known partner thereof, concluding for payment of £2000 to the first-named and £12,000 to the second-named pursuers.

The Duke of Hamilton's trustees were the proprietors and Messrs Barr & Sons the mineral tenants of North Netherburn, which marches on the north-west with Woodside, of which the defender Mr Hutchison was the proprietor.

The pursuers averred that near the northwest corner of North Netherburn there was a triangular area of coal belonging to North Netherburn, and that the defenders from a pit sunk in Woodside had “worked out part of the coal in the ell, and it is also believed and averred in the main seam in the said triangular area.… The workings of the said Woodside Coal Company in said triangular area extended to a distance of 120 yards or thereby into the lands and minerals of North Netherburn.”

The pursuers further averred that in December 1894 the pursuers Messrs Barr & Sons proceeded to sink a pit in the triangle, and that the defenders shortly afterwards stopped pumping the water in the Woodside Pit, the result of which was to throw a heavier burden of water upon the pursuers' workings in the triangle.

“Cond. 4.—The said pit on North Netherburn lies to the dip of Woodside, and in consequence of the stoppage of pumping by the defenders before referred to, the said encroachments of the defenders have been filled with water, and the wastes flooded to about the level of the ell coal in Woodside Pit, with the result that the whole coal below the upper seam in the said triangular area, so far as not abstracted by the defenders, has been rendered unworkable, or at least unworkable to profit. The sinking of the pursuers' said pit beyond the upper coal in said encroached area has therefore been stopped, and the large cost thereof has in a great measure been abortive, to the loss and injury of the pursuers, the said William Barr & Sons.”

The pursuers averred that the coal abstracted by the defenders from the ell seam amounted to 30,000 tons, while that abstracted from the main seam, together with what was rendered unworkable, amounted to 40,000 tons. They also averred that the defenders' encroachment and abstraction of coal were made recklessly and in mala fide, and in the knowledge that the workings were being carried on in the pursuers' coal.

The defenders admitted that encroachments had been made on the pursuers' minerals by their manager, without the knowledge of Mr Hutchison, and averred that Mr Hutchison on being informed by the manager of these encroachments, caused inquiries to be made as to the manner in which the minerals in Woodside and the neighbouring properties had been worked.

Stat. 3.—Mr Hutchison “discovered and alleges that for a number of years the tenants of the said minerals belonging to the Duke of Hamilton (including the pursuers Messrs Barr & Sons) have been in the habit regularly and systematically of encroaching upon the estate of Woodside, and abstracting minerals therefrom at such places as they found most convenient. These encroachments were known to and authorised by the pursuers, the Duke of Hamilton's trustees, or their authors, or by their agents, for whom they are responsible, and they received payment of large sums in name of royalties on account of the minerals which had been to their knowledge so abstracted from Woodside. So far as Mr Hutchison has been able to discover, no less than thirteen different encroachments have been made upon Woodside, and about 25,000 tons of coal have been abstracted from the said estate by the successive tenants of the Duke of Hamilton.” The defenders then specified the several encroachments which he averred had been made not only from North Netherburn but also from Over Dalserf, the minerals of which had also been rented by Messrs Barr & Son from the Duke of Hamilton; and proceeded:—

“Stat. 4.—By the acts of the pursuers above condescended on, or some of them, the pursuers induced the defenders'

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manager to believe that he was entitled to take minerals from the Duke of Hamilton's estate, in places where such minerals could be most conveniently or only worked from Woodside, and he accordingly made the encroachments upon the triangular area referred to in the present action. The minerals in that area were and are not workable to profit except from Woodside. The defenders' manager acted in good faith, and in accordance with the system of working established by the pursuers.”

“Stat. 5.—The defenders believe and aver that the pursuers Barr & Sons, and also the pursuers the Duke of Hamilton's trustees, and the late Duke of Hamilton, whom the said pursuers represent, and the agents employed by them and him in connection with the said mineral field, have been aware for a number of years of the encroachments of which they now complain, and that their object in beginning to sink a pit in the said triangular area was to rear up a claim of damages against the defenders. They had no bona fide intention of working the said minerals, which, as has been already explained, could not have been worked to profit owing to the smallness of the area and the troubled condition of the field.”

The defenders further averred that as a consequence of their encroachments the pursuers had sent a large quantity of water from their mineral field into the defenders' workings, and had thrown upon the defenders the burden of pumping to the surface the greater part of their underground water.

“Stat. 7.—The defenders are about to raise an action against the pursuers in respect of the encroachments and illegal actings above referred to.”

The pursuers pleaded, inter alia—“(1) The encroachments and operations condescended on being wrongful and illegal, the defenders are liable to the pursuers respectively for the loss, injury, and damage they have thereby respectively sustained.”

The defenders pleaded, inter alia—“(2) The defenders not having authorised the encroachment complained of, they are not liable in damages as concluded for. (3) In the circumstances stated, the pursuers are barred by their actings from claiming damages in respect of the said encroachments.”

On 10th November 1896 the Lord Ordinary ( Stormonth Darling) allowed the parties a proof of their averments.

The defenders then lodged a specification of documents called for by them. These documents all bore upon the defenders' main line of defence, viz., the averments of counter-encroachment by the pursuers, and it was not seriously disputed that they were relevant thereto. The specification included, e.g., the following articles—(4) All returns of lordships paid to the Duke of Hamilton's trustees or their authors in respect of the minerals in North Nether-burn or Over Dalserf during a specified period. (5) The books containing entries showing the output of minerals from (1st) Over Dalserf, (2nd) North Netherburn, and (3rd) Woodside, by the tenants of the coal on the first-named properties, and showing what royalties were received by the Duke of Hamilton in respect of coal worked from Woodside. “(6) All plans, tracings, reports, letters or correspondence relative to coals of Woodside worked by the pursuers or either of them, or by the late Duke of Hamilton, or by tenants of the said Duke or of the first-mentioned pursuers. (7) All books of the pursuers or either of them or of the late Duke of Hamilton or of his tenants, containing entries relative to encroachments by them or any of them on the coals or minerals of Woodside, or of coal worked by any of them from Woodside, that excerpts may be taken therefrom of all such entries.”

On 18th December 1896 the Lord Ordinary ( Kyllachy), to whom the cause had been transferred, pronounced an interlocutor in which, inter alia, he refused diligence to the defenders in terms of their specification, and granted leave to reclaim.

The defenders reclaimed, and argued—The Lord Ordinary was wrong in refusing the diligence. He had done so because he had doubts as to the relevancy of the defence. But the question of relevancy and of proof was not now before the Court. It had been disposed of by the interlocutor of the Lord Ordinary before whom the cause originally depended. He had allowed a proof, and that interlocutor, not having been reclaimed against within six days, was final under the 28th section of the Court of Session Act. The pursuers were not entitled to object to a specification of documents which it was not disputed were relevant to the averments of which a proof had been allowed— Barr v. Bain, July 17, 1896, 23 R. 1090, referred to.

Argued for the pursuers—The Lord Ordinary was right. Although a proof at large had been allowed, it was competent for the Lord Ordinary to limit it at any stage by eliminating irrelevant matter. Even on the assumption that some articles in the specification were relevant, the Lord Ordinary had taken the proper course in refusing it— Silver v. Great North of Scotland Railway Company, January 23, 1894, 21 R. 416. The defenders merely desired information to enable them to raise their threatened action.