Scottish Court of Session Decisions

Mary Hallpenny, the pursuer in this action, was the proprietor of about a quarter of an acre of ground and a house built thereon, feued from the defender Captain Dewar of Vogrie.

The feu-charter contained the following clause:—“Reserving always to me [viz., the superior] and my foresaids the whole mines, metals, minerals, fossils, coal, clay, limestone, ironstone, whinstone, freestone, and other stone, whether for ornamental or building purposes, within the piece of ground hereby disponed, and full power and liberty to me and my foresaids, or any person authorised by us, to search for, work, win, and carry away the same, and to make bores, sink pits, erect houses and machinery, and to make aqueducts, levels, drains, quarries, roads, railways, and others necessary for all or any of these purposes, upon payment of surface damages, as the same shall be ascertained by two arbiters, one to be chosen by me or my foresaids, and the other by the said Thomas Thomson [the vassal and the pursuer's author] or his foresaids, or by an oversman to be appointed by such arbiters in case of their differing in opinion.”

The present action was brought under the Arbitration (Scotland) Act 1894 (57 and 58 Vict. cap. 13), secs. 3 and 6, praying the Sheriff to appoint an arbiter with all the powers of an arbiter under the feu-charter, to ascertain along with an arbiter to be chosen by the pursuer the surface damages sustained by the pursuer to her property, arising from the workings of the defender, his tenants, and others having his authority, in virtue of the powers reserved to the superior in the feu-charter.

The pursuer averred that the defender or his mineral tenants had worked the minerals within her feu in virtue of the reserved power in the feu-charter. She further averred that Lavingstrang Cottage, her property in question, had for many years past suffered considerable damage arising from the mineral workings of the defender and his tenants. “The damage to Lavingstrang Cottage has been gradually increasing, the walls are cracked, and the plaster is falling off. The pursuer has called upon the defender to settle her claim for damages to Lavingstrang Cottage, but he refuses to pay her any sum, or even to appoint an arbiter to ascertain, along with an arbiter to be named by her, in terms of the feu-charter, the damages to which she is entitled.”

The defender denied that any damage had been done to the cottage by the mineral workings of himself or his tenants.

The pursuer pleaded, inter alia—“(2) The defences are irrelevant.”

The defender pleaded, inter alia—“(2) In respect that the arbitration clause founded on does not cover the question of the defenfer's liability for damage arising from subsidence due to underground workings, the petition should be refused with expenses.”

On 17th March 1898 the Sheriff-Substitute ( Hamilton) sustained the second plea-in-law for the pursuer, repelled the defences, and appointed a builder in Edinburgh as arbiter in terms of the prayer of the petition.

“Note.—Counsel for the defender stated only two objections to the petition, and these the Sheriff-Substitute has no difficulty in repelling. One was to the effect that the provisions of the Arbitration (Scotland) Act 1894 are not applicable. The other was merely a réchauffé of arguments that were rejected as untenable in the cases of Oswald v. Gordon, November 22, 1853, 16 D. 70; Neill's Trustees v. Dixon, March 19, 1880, 7 R. 741; and Governors of Daniel Stewart's Hospital v. Waddell, July 2, 1890, 17 R. 1077.”

The defender reclaimed, and argued—(1) The damage here was due to subsidence arising from underground working. It was therefore not included in the arbitration clause, which dealt only with surface damage, i.e., damage arising from operations on the surface, such as those enumerated in the second part of the clause, viz., to “make bores, sink pits, erect houses,” &c. The power to “search for, work, win, and carry away” the minerals was not affected by the condition, “upon payment of surface damages,” and was only explanatory of the reserved right to the minerals themselves— Galbraith's Trustee v. Eglinton Iron Company, November 25, 1868, 7 Macph. 167, per Lord Deas, 171, per L.-P. Inglis, 172, referred to. (2) If subsidence was the cause of the damage, the defender had been guilty not of a breach of contract but of a delict—a violation of the pursuer's common law right to support of the surface. The pursuer's remedy accordingly was not supplied by the clause in the feu-charter which gave the defender no right to let down the surface at all. White v. Dixon, December 22, 1881, 9 R. 375, per Lord Shand, at 390, aff. 10 R. (H. L.) 45, was conclusive on the point, and the same view had been taken in Buchanan v. Andrew, February 24, 1871, 9 Macph 554,

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rev. 11 Macph. (H. L.) 13; in Davis v. Treharne, 1881, L.R., 6 A.C. 460; in Aspden v. Seddon, 1875, L.R., 10 Oh. 394, per Mellish, L.J. 401; and in Love v. Bell, 1884, 9 A.C. 286. In the eases cited by the Sheriff the question had never been argued whether the arbitration clause applied or not. The Governors of Daniel Stewart's Hospital v. Waddell, July 2, 1890, 17 R. 1077, was undoubtedly, however, an authority in favour of the pursuer, and was distinguishable only on the ground that the question there arose between landlord and tenant, not between superior and vassal. That case was wrong decided.

Argued for the pursuer—The Sheriff-Substitute was right, and the authorities relied upon by him were conclusive. As a matter of mere grammatical construction the condition “upon payment of surface damages” affected the whole “power and liberty” reserved to the superior, and therefore applied to underground workings as well as to operations on the surface. The arbiters were to “ascertain,” not merely to assess the damages; and that expression implied that it was for them to decide whether damage of the kind contemplated by the clause had been done at all. The defender had admitted that Waddell, ut sup., was an authority against him; and until Waddell was overturned he could not prevail in his contention.