Scottish Court of Session Decisions

This was an action at the instance of Thomas Anderson of Langdales, in the parish of New Monkland and county of Lanark, against (1) M‘Cracken Brothers, coalmasters, and the individual partners of that firm; (2) the marriage-contract trustees of James Mitchell, banker, Auchen-gray House, near Airdrie, and his wife;

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(3) the testamentary trustees of Mrs Margaret Thomson Rankin or Alston, wife of John Motherwell Alston, writer, Coatbridge; (4) the said John Motherwell Alston; and (5) John Rankin, coalmaster, Glasgow.

The minerals in part of the pursuer's lands of Langdales were worked by the defenders M'Cracken Brothers under leases from the other defenders, who were the proprietors of the minerals in these lands under dispositions from the pursuer's authors.

The pursuer concluded (1) for declarator that the defenders were not entitled to work the minerals so as not to leave sufficient support for the pursuer's lands above and adjacent to the seams worked by them; that they were bound to work the minerals in such a manner as not to alter the surface of the lands or the natural level thereof, and for that purpose to leave sufficient stoops, dykes, and pillars to support the pursuer's lands above and adjacent without injury and damage, and unaltered in level; (2) for interdict against the defenders working the minerals in such a manner as to break, injure, or alter the level of the surface of the pursuer's lands, or endanger its being injured or altered in level, or to injure buildings, machinery, or erections, or cause disturbance or subsidence; and (3) for £1000 as damages.

The pursuer averred that the defenders M'Cracken Brothers were working the minerals “in an illegal and improper manner, and in such a way as to bring down the surface,” and that they had excavated the minerals “without leaving pillars, or otherwise providing for the support of the surface,” and that subsidence and consequent damage had resulted. He also averred that the M'Crackens' method of working had been authorised by the other defenders.

Defences were lodged (1) for M'Cracken Brothers, and (2) for the other defenders. M'Cracken Brothers denied that they were working the minerals in an illegal way. The other defenders averred that they had only granted to the first defenders the power of working the minerals to the extent conferred on themselves by virtue of their titles They also averred as follows:—“The coal seams are thin, and average 15 to 19 inches in thickness. Seams of this nature can only be worked to a profit by a system of complete abstraction of the coal seams. This system, known as the long-wall system, is that which for a century has been universally practised in the neighbourhood. Upon no other system could the coal belonging to these defenders be worked to a profit. No seams of coal which have been worked could have been worked by any other system. This was well known to the pursuer's authors at the time when they granted the before-mentioned dispositions. In particular, one of the disponers, Mr Robert Anderson, was well aware of this. The price then paid for the minerals was paid upon the footing that the coal should be exhausted by the said long-wall system.”

They averred further that the lands under which the minerals were worked had no feuing and little agricultural value; that no buildings had been injured; that there were no buildings upon that part of the lands; that they had always been willing to pay for any damage caused by the mineral tenants; and that the minerals had been worked on the long-wall system since 1872 with the knowledge and approval of the pursuer.

The disposition in favour of the author of the second, third, and fourth defenders was granted by Thomas Anderson, residing at Langdales, the father of the pursuer, and Robert Anderson, mineral borer, uncle of the pursuer. It bore to be granted in consideration of the sum of £800 instantly paid, and of the sum of £200 covenanted to be paid, out of the first and readiest profits which might be derived from the minerals, and disponed all and whole two-thirds of the whole coal, ironstone, limestone, and fireclay and other metals in the lands, “with full power and liberty to the disponee and his heirs and assignees, together with all right, title, and interest, claim of right, property, and possession which we or either of us, our authors or predecessors, heirs or successors, had, have, may, or can claim to the said coal, ironstone, limestone, fireclay, and other metals and minerals under said lands, with full power and liberty to” the disponee “to work, win, and carry away the said minerals, and for that purpose to sink pits, erect machinery, make roads, railways, and watercourses, and to calcine the said ironstone and coke the said coal, all on the foresaid lands, and generally to do every other thing for the profitable and convenient working, winning, and carrying away the said minerals before specified on payment of the annual surface damages for the ground occupied by such operations, and of all damages done to crops and grass, as the same shall be ascertained from time to time by arbiters mutually chosen, or by an oversman to be appointed by them; declaring that so soon as the ground is not required to be further occupied the same shall be restored as near as circumstances will admit to its former condition by trenching the rubbish under the surface; … declaring that no damages shall be paid for moss ground, nor shall the same require to be restored; declaring also that no pit shall be sunk within 100 yards of the farm-steadings, except with the consent of the respective proprietors, as also all damages done to the buildings on the ground shall from time to time be paid, or to any new buildings to be erected in lieu of those presently existing.” It was also provided that the disponers, or such of them as should occupy Langdales for the time being, should be entitled to 80 carts of coal free annually during the time that coal was wrought in the lands, and also to ashes, rubbish, and certain dross.

The dispositions in favour of the fifth defender's author contained similar provisions.

It was not disputed that the defenders were working, and intended to work, the

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minerals on the long-wall system, or that this system necessarily brought down the surface.

A proof before answer was allowed and led in support of the defenders' averments, the import of which sufficiently appears from the opinions of the Judges.

On 9th November 1899 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor— “Finds and declares, and interdicts, prohibits, and discharges in terms of the conclusions of the summons for declarator and interdict, and decerns: Finds the pursuer entitled to expenses since the date of closing the record,” &c.

Opinion.—“The pursuer here is the proprietor of the surface of the lands of Langdales, and the defenders amongst them own the minerals under those lands. The surface and minerals were separated by dispositions granted on 9th June 1858 and 4th July 1862, by the then owners of the plenum dominium. The earlier of those dispositions is, in so far as material, quoted on record, and is printed at length in the appendix of 10th July 1862. The later disposition does not appear to be printed, but it is agreed that for the present purpose it may be taken to be in the same terms.

The question is, whether in disponing the minerals, and so separating the two estates, the pursuer's predecessors, as owners of the surface, surrendered the right of support which— apart from such surrender—they retained at common law. It is not contended that the right to support was expressly surrendered; but the defenders maintain that there is a necessary implication to that effect derived from the terms of the clause in the original disposition, which provides for the working of the minerals and the payment of compensation for damage thereby caused. They seek to assimilate the present case to the case of Aspden, 10 Ch. App. 403, where such implication was deduced successfully from the terms of a compensation clause providing in unequivocal terms for contemplated injury to buildings. But the defenders found further and separately on inferences which they seek to draw (1) from the mode of working practised in neighbouring coalfields at the date of the two dispositions—a mode of working which it is not disputed brought down the surface; (2) from the impossibility or difficulty of working to profit such minerals as are here in question consistently with supporting the surface. Of their averments on those heads the defenders were allowed a proof before answer, and according to their contention the result of that proof brings the present case within the principle of the case of the Bank of Scotland v. Stewart, 18 R. 957.

At the close of the proof which was led the other day I heard a very full and careful argument on both sides, which included a review of most of the recent cases on the subject. Having again considered those cases and given my best consideration to the whole matter, I have come to the conclusion that the defenders have failed to make good their contention.

In the first place, I am unable to hold that the facts disclosed by the proof at all affect the rights of parties under their titles, or materially help in the construction of those titles. The minerals here were not being worked when they were given off by the proprietors of the surface. Nor were they in fact worked until about the year 1872. I cannot in these circumstances consider the present case to be at all similar to the case of a disposition of a going colliery worked in a particular manner at the time of the disposition. That was the state of the fact in the case of the Bank of Scotland v. Stewart. But here, on the contrary, all that is proved is that for a long period prior to 1853 long-wall working had been extensively practised in Lanarkshire, and was the mode of working generally in use in the coal-fields adjacent to the coal-field in question. That is all that is proved, taking the proof at its very best. And that being so, I cannot hold that the legal import of the titles which were accepted in 1853 and 1862 by the defenders' authors can be controlled or affected by inferences as to the probable contemplation of parties—inferences drawn from the mode or modes of working practised by other people and on other estates. For the same reason I am equally unable to sustain inferences drawn from the thinness of most of the seams of coal in this particular coal-field, and the alleged impossibility of working such seams to profit except by long-wall. In point of fact there is at least one seam in the field which cannot be described as specially thin, viz., the Virtuewell coal; but even assuming generally that long-wall working is the only mode of working to profit the known seams in this coal-field, that appears to me to be a matter on which the defenders' authors must be held to have taken their chance, and in connection with which, if they required special powers, they ought to have stipulated for such powers when they made their purchase.

The case therefore does not, in my opinion, fall within the principle of the case of the Bank of Scotland v. Stewart. It remains to consider whether it can be brought within the reasoning which prevailed in the case of Aspden, and cases of that class. As to this, I can only say that I have not been able to discover in the defenders’ title any provision which, in my opinion, requires to be read as applying to damage to the surface by subsidence— subsidence caused or induced by proper working underground. There are, of course, the usual clauses providing for surface damage—that is to say, damage done to the surface by the sinking of pits, the making of roads and railways, and other operations above ground; and in the enumeration of the heads of damage to be compensated there is no doubt included ‘damage done to buildings on the ground.’ But this reference to buildings must, in my opinion, be read in connection with the context, and must—or at least may—be read as pointing, not to damage by subsidence caused by underground workings,

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but to damage ejusdem generis with that mentioned, viz., damage done in the course of sinking of pits, making of roads, and other surface operations. That is at least a possible reading of the clause, and having in view that the defenders must establish the surrender of the right of support by necessary implication, I am unable to hold that such necessary implication exists here. Of course the clause may cover—probably does cover—casual damage, damage done negligently or by accident, even by underground operations. But what the defenders have to show in order to bring their case within the case of Aspden is that the surface damage clause cannot reasonably be read otherwise than as providing compensation for injury done by subsidence— subsidence not caused accidentally but caused in the regular course of working the minerals. I do not think the defenders have shown that; and therefore on the whole matter I must grant decree of declarator and interdict, and continue the cause on the question of damages.”

The defenders reclaimed.

Argued for the defenders other than M'Cracken Brothers—(1) In the clauses of the dispositions as to working the minerals, and as to damages for injury caused in doing so, it was plainly implied, apart from the proof, that the parties contemplated and intended that the minerals should be worked in such a way as would bring down the surface. Plain implication was enough. It was not necessary that the inference should be inevitable, or that the clause should not be reasonably capable of being read otherwise. Here the compensation clause clearly referred to damage caused by underground workings, and that implied a licence to the defenders to bring down the surface subject to payment of damages— Aspden v. Seddon (1875), L.R., 10 Ch. App. 394; Smith v. Darby (1872), L.R., 7 Q.B. 716. In White v. Dixon, December 22. 1881, 9 R. 375, March 19, 1883, 10 R. (H.L.) 45. the terms of the clauses negatived any right to bring down the surface. (2) From the proof it appeared that it was impossible to work the minerals at a profit except by the long-wall system, which necessarily brought down the surface, that this was the method of working universally adopted in the neighbourhood, and that both these circumstances were well known to all the parties when the dispositions of the minerals were granted. This case was therefore within the principle of the decision in Bank of Scotland v. Stewart, June 19, 1891, 18 R. 957. The surface here was of little value, chiefly moss and rough pasture. Where the seams were thin, as here, the effect of long-wall working was merely to cause a slight general subsidence without cracks in the surface, and in this case such subsidence could only cause very slight injury. In view of these circumstances it might readily be presumed that the disponers of the minerals intended them to be fully worked out, even if that involved some injury to the surface— Davis v. Treharne (1881), 6 App. Cas. 460, per Lord Blackburn, at page 466. To grant interdict here would be to allow the pursuer to derogate from his author's grant. (3) In any view, this was not a case for interdict. The surface was of little value, and the result of preventing the defenders from working in the way adopted by them would be to make it impossible to work the minerals at a profit, and so to render the whole expenditure of the mineral tenants useless, and also to cause very serious loss to the mineral owners. As to the impropriety of granting interdict under such circumstances, see Governors of Daniel Stewart's Hospital v. Waddell, July 2, 1890, 17 R. 1077.

Argued for the pursuer—A grant of the minerals in lands was a grant only of such minerals as could be removed without disturbing the surface.— Smith v. Darby, cit., per Lush, J., at page 726; Aspden v. Seddon, cit., per Mellish, L.J., at page 402; Davis v. Treharne, cit.; Love v. Bell (1884), 9 App. Cas. 286. The burden of proving a right to bring down the surface lay upon the mineral owner.— Davis v. Treharne, cit.; Love v. Bell, cit. The fact that the grant contained a clause as to damages for injuring the surface was not sufficient, unless that clause was so framed that it was quite inconsistent with the presumed prohibition, or would have been quite inconsistent with an express prohibition, against bringing down the surface, and necessarily implied a right on the part of the mineral owner to do so. The burden which lay upon him could not be discharged by pointing to a damage clause which might refer to damages arising from underground working intentionally designed to bring down the surface, but which could also be reasonably held to refer merely either to damage caused accidentally by underground workings, or to damage caused by operations on the surface, and so could receive full effect consistently with the right of support— Davis v. Treharne, cit.; Smith v. Darby, per Lush J. at page 726; Governor of Daniel Stewart's Hospital v. Waddell, cit.; Greenwell v. Low Beechburn Coal Company [1897], 2 Q.B. 165. The damage clause here could be quite fairly read as not applying to underground workings, but merely to operations on the surface. There was nothing in it which would have been inconsistent with a clause expressly prohibiting such a mode of working as would bring down the surface. The argument for the pursuer and respondent upon the other points in the case sufficiently appears from the Lord Ordinary's opinion.

Counsel appeared for the defenders M'Cracken Brothers, but they did not consider it necessary to address the Court.

At advising—