Scottish Court of Session Decisions

Sir John George Vollemache Sinclair raised an action in the Sheriff Court of Caithness at Wick against the Caithness Flagstone Company, Limited, and the Caithness Flagstone Quarrying Company and the individual partners thereof, praying the Court “to ordain the defenders, jointly and severally [or severally, and according to their respective liabilities, as these shall be established in the present action], forthwith to execute the necessary works of construction and repair, to put in proper order and condition the several quarries, roads, ditches, fences, drains, and buildings after mentioned, and that within the period of two months, and at the sight of a person appointed by the Court, and failing the defenders so doing, to authorise the pursuer to execute said necessary works at his own cost, and to ordain the defenders, jointly and severally, or severally as aforesaid, to pay to the pursuer the sum of £1759, 10s., or such other sum as may be determined to be the cost and expense to the pursuer of executing said works; or alternatively to pay to the pursuer the sum of £1759, 10s. as damages.” The words in brackets were added to the petition by way of amendment.

The pursuer averred that in 1875 he let certain subjects in Caithness to the Caithness Flagstone Quarrying Company and the individual partners, and that, by assignation in 1892, the Caithness Flagstone Company, Limited, became vested in the whole rights of the first-mentioned Company. By the said assignation the Limited Company bound themselves “to perform, implement, and fulfil, and to free and release and keep skaithless,” the Quarrying Company of all the obligations and prestations incumbent on the latter by the lease subsequent to the 14th day of December 1888. The Limited Company were accepted by the pursuer as tenants under the lease of 1875, “but under special reservation of all rights competent to me by virtue of the within-mentioned lease granted by me to the Caithness Flagstone Quarrying Company … and under the express declaration that the said Caithness Flagstone Quarrying Company and individual partners … shall continue to be bound jointly and severally for payment of the rent and lordship and implement of all the conditions and obligations incumbent upon them, notwithstanding the written assignation and the intimation thereof.”

The lease terminated at Martinmas 1895, and the parties failed to arrange for its renewal.

By the said lease it was, inter alia, provided that “the said second party ( i.e., the quarrying company and the partners thereof) bind and oblige themselves to work the said quarries, and also those that may hereafter be found by them, with as little destruction of ground as possible, and in a proper and regular manner, and in regular faces and of sufficient depth to take out all the marketable flags and slates, and on no account to cover up with rubbish or otherwise the face of any portion of any quarry which is being worked at the time notice is given that such quarry has become unremunerative, nor so as in any way to obstruct or interfere with the full and free access to such quarry.”

The pursuer proceeded to aver—“(Cond. 4) In terms of said obligation to work the

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quarries ‘in a proper and regular manner,’ and ‘in regular faces,’ the defenders were bound to work the quarries so as to keep, and at the termination of the lease to leave, the rock clear of all rubbish and debris, in order that access for working purposes might be immediately obtained by the pursuer or any tenants to whom he might let the same. The defenders have failed to fulfil this stipulation with regard to the Wey-dale and Whitemoss quarries, which were left at the termination of the lease in a state of extreme disorder. The debris had been allowed, through defenders' neglect, to accumulate to such an extent over and against the rock in different parts of said quarries, that access for working purposes is impossible without preliminary measures of an extensive character to clear the stone. The cubic yards of debris which it is necessary to remove amount to fifteen thousand or thereby in the Weydale quarries, and to two thousand five hundred or thereby at Whitemoss. The cost of removal, it is believed, will not he less than £900 sterling, and immediate measures to that end are necessary, as the letting of said quarries is seriously prejudiced by the presence of said material. (Cond. 5) In addition to said debris which had been left in the face and on the top of rock, contrary to the recognised and well-established rules of all good pavement quarrying, and in direct violation of the terms of said lease, the defenders have further blocked up said quarries with debris, and have left practically no roads through same. If said quarries had been worked in a proper and regular manner, as in point of fact they have not been, roads would have been left through the quarries so as to admit of free access from one end thereof to the other for working purposes, and the formation of such roads is necessary before the working of said quarries can he undertaken by a tenant. The cost of forming such roads, it is believed, will not be less than £200 sterling.”

The pursuer also cited a further obligation imposed by the lease on the Quarrying Company—“To maintain during the currency of this lease, and to leave at the expiry thereof, in good tenantable condition, the whole buildings and enclosures of every kind already erected or to be erected on the quarry grounds and pavement yards hereby let, and also to pay their proportion of the cost of leaving in good order all roads leading to or from the quarries or pavement yards hereby let, as also to defray the whole expense of leaving in good repair all drains or ditches made or to be made in connection with said quarries and pavement yards.” He averred that the defenders had failed to implement these obligations.

The pursuer pleaded—“(1) The defenders being, in terms of their said lease, bound to work the quarries thereby let to them in a proper and regular manner, and in regular faces, and to leave said quarries redd and clear and with proper roads therein, and having failed to dp so as condescended on, decree should be pronounced ordaining them to execute the works necessary to put said quarries in proper order and condition in terms of the prayer. (3) In the event of the defenders failing to execute said works as prayed for, authority should be granted to the pursuer to execute the same, and the defenders should be ordained to pay the cost thereof to the pursuer.”

The defenders, the Caithness Flagstone Company, Limited, denied the pursuer's averments of fact, averred that by far the greater part of the debris at the quarries was deposited before they became tenants under the lease, and pleaded, inter alia— “(2) The action is incompetent in respect that ( a) the prayer of the petition is utterly vague and unintelligible as to 1st the alleged defects sought to be remedied, and 2nd the mode in which it is proposed to remedy them; ( b) it contains joint and several conclusions against defenders who are not subject to joint and several liability; and ( c) it concludes against different defenders for a slump sum of damages in respect of alleged separate wrongs. (3) The pursuer's averments are irrelevant and insufficient to support the prayer of the petition.”

The defenders first called did not lodge defences.

On 8th December 1897 the Sheriff-Substitute ( Mackenzie) repelled the second and third of the defenders' pleas-in-law, and before further answer appointed the case to be put to the roll for further procedure.

Note.— … “The second plea is a somewhat comprehensive one, and impugns the competency of the action in the form in which it is presented. As to the defects complained of and the method of remedying these, I do not think the defenders can reasonably complain of want of specification. The prayer of the petition could scarcely be burdened with the whole details which are specified on the condescendence, and the reference to the terms of the lease appear to me to be sufficient to give the defenders ample warning of what is demanded of them. I have been referred to the case of Middleton v. Leslies, May 19, 1892, 19 R. 801, where the expression ‘forthwith’ was held to be inapplicable to a decree ad factum præstandum with regard to building operations. But here that expression is coupled with the words ‘and that within the period of two months and at the sight of a person to be appointed by the Court.’ This appears to me to give sufficient warning to the defenders, and to form a substantial qualification of the proposed order to execute the works ‘forthwith.’ The question of joint and several liability is also raised under this plea by the defenders. I have already dealt to some extent with this plea in my former interlocutor of 16th November last, and I need not repeat what is there said. Looking at the petition alone, it appears to me that the reference to the terms of the lease and assignation is sufficient to support the prayer, which contains a joint and several liability. If there is no Separate specific averment that such liability exists, there are facts alleged upon which that liability is founded. Whether it really exists is a question of law upon these facts. Considerable argument has been expended

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upon the question whether there are not here separate wrongs for which it is incompetent to ask for one sum in name of damages. As I have before observed, the question of separate wrongs and degrees of liability is one raised by the defenders, and may very well arise for discussion on the merits. It is sufficient at this stage if the pursuer undertakes to prove that the wrongs are really inseparable, which I understand to be his main position. In the case of Barr v. Neilson, March 20, 1868, 40 Jurist 337, the wrongs complained of were separate alleged slanders by a husband and wife. Such a case does not seem to me to apply to the present, where the wrongs are alleged as occurring over a period of years, and as having been done by a number of defenders who have a joint and several and successive liability. The proof may alter the view to be taken of the facts, but I cannot sustain this as a preliminary objection.”

The defenders appealed, and argued—The Sheriff-Substitute was wrong. The action was incompetent except in so far as founded upon the obligation to leave the buildings in tenantable condition and to leave the roads outside the quarry in good condition. As regarded the conclusion ad factum præstandum, the pursuer was not entitled to such a remedy. The lease had expired and the defenders had no right to enter upon the quarries in order to put matters to rights. But if the alternative conclusion for damages was considered, it was equally incompetent. Two sets of tenants had occupied the quarries, and the pursuer had not attempted, as he was bound to do, to fix the liabilities of each. It would not do to name a lump sum and leave it to a general proof to disclose the precise liability of the earlier and the later tenant. The amendment of the petition was futile. Bach set of defenders was liable for its own wrong and no further— Barr v. Neilson, March 20, 1868, 6 Macph. 651; Taylor v. M'Dougall & Sons, July 15, 1885, 12 R. 1304. The character of the obligation was emphasised by contrast with that of leaving the buildings and roads in good repair.

Argued for the pursuer— It was quite true that there was no statement on record as to the time when the debris accumulated, and no attempt to distinguish between what happened prior, and what subsequently to 1888. But joint and several liability was constituted by the minute of acceptance of intimation, and the Quarrying Company continued to be bound to implement all the conditions of the lease. The obligation in the lease to leave the rock clear of all rubbish and debris was unequivocal.

At advising—