Scottish Court of Session Decisions

This was an action at the instance of Andrew Dryburgh, Burghlea Villa, Leven, against the Fife Coal Company, Limited, in which the pursuer sought to recover damages for injuries caused to certain buildings of which he was proprietor, the injuries being caused by subsidence admittedly brought about by the defenders' operations. In addition to the conclusion for damages the summons contained a declaratory conclusion which need not be further referred to.

The pursuer was proprietor of a piece of ground in the parish of Wemyss, near Methil. It was originally feued in 1894 to Andrew Swinton, mason, Methil, and was acquired from his successors by the pursuer at Whitsunday 1903. The original feuar was taken bound to erect and maintain on the feu certain buildings. These buildings were erected and were acquired by the pursuer with the ground on which they stood.

The feu-disposition in favour of Swinton was granted by certain trustees, the authors of the pursuer's superior Mr Randolph Erskine Wemyss, subject to a reservation of minerals in the following terms:—“Reserving always to us and our successors in the said lands and others the whole metals and coal, limestone, freestone, and minerals, and fossils of every description within the piece of ground before disponed … declaring, as it is hereby expressly provided and declared, that the said Andrew Swinton and his foresaids shall have no claim whatever against us as trustees foresaid, or our successors as aforesaid, for any damage that may be done or caused to the piece of ground hereby disponed, and buildings erected or to be erected thereon, … by any of the operations in time past or to come, of us or our predecessors or successors and tenants, in working and removing or draining the metals, coal, stone, minerals, and others hereby reserved, or in the neighbourhood of the piece of ground hereby disponed … and declaring that, as regards us and our foresaids, all loss, risk, or damage in any of the events foresaid shall be borne and sustained by the said Andrew Swinton and his foresaids themselves: But reserving always to the said Andrew Swinton and his foresaids all claims which may be competent to them in respect of any such damage as aforesaid, against our tenants or tacksmen of the minerals and others in or near the said piece of ground, in so far as such tenants or tacksmen may be liable for such damage, without having any right of recourse or relief or any other remedy against us, as trustees foresaid, and our foresaids.”

The defenders were Mr Wemyss' mineral tenants under a subsisting lease which was entered into by them in 1877, under which the lessees were taken bound, with reference to the working of the coals, “to work the same in a regular and systematic manner, according to the rules and methods followed in well regulated collieries, and in particular, to work the whole saleable coal of each seam from roof to pavement, by the

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longwall or other method of complete excavation, and so as to insure at once the greatest output and the present and future advantageous working of the coalfield.”

The lessees were further taken bound as follows:—“And further, and over and above making payment of the said fixed rents or lordships or royalties, the said lessees bind and oblige themselves and their foresaids during the currency of this lease to make compensation to the land tenants where the land is let, or to the owner where the land is not let, for all the ground which the lessees under these presents may use or injure in any of their operations under this tack, and to make good and discharge all the damages of what kind soever which the said lessees or their servants in their lawful business under their control may in any way occasion to any lands, crops thereon, houses, or woods, or fences and drains, wells or water courses, and whether such damage shall be due to the lessors of the colliery or to the landlord, or land tenants, feuars or others.” It is unnecessary to refer further to the terms of the lease, which are sufficiently disclosed for the purposes of this report in the opinion of the Lord Ordinary infra.

The pursuer pleaded—“(3) The defenders as tenants of said minerals being bound in the event of their operations causing subsidence in the pursuer's property to compensate or pay damages for the same, are liable to the pursuer in damages in respect of the subsidence condescended on.”

The defenders pleaded—“(1) No title to sue. (3) The operations of the defenders being within their legal rights, they are entitled to absolvitor. (4) The lessors (the pursuer's authors) having granted feus for building in excess of what was fairly in contemplation of the parties to the said lease, the pursuer is not entitled to decree.”

Proof was allowed. The nature of the evidence led is disclosed in the opinion of the Lord Ordinary.

On 6th December 1904 the Lord Ordinary (Low) assoilzied the defenders.

Opinion.—“This is an action by the proprietor of a house near Leven in Fifeshire, for damages for injury done to the house through subsidence of the surface caused by the coal workings of the defenders. It is admitted that the defenders have taken out a seam of coal under the house; that subsidence of the surface and consequent injury to the house have resulted; that the subsidence would have occurred even without the additional weight of the house; and that there has been no fault or negligence or improper working on the defenders' part.

“The pursuer's house is built upon a piece of land forming part of the Wemyss estate, which his predecessor (Swinton) acquired from certain trustees who then held the estate, conform to feu-disposition granted by them. Mr Randolph Erskine Wemyss of Wemyss is now the superior. The defenders are lessees of the coal in the land upon which the house is built, under a lease granted in 1877 by Mr Erskine Wemyss and others.

“In the feu-disposition there is a reservation of the coal and minerals, and it is provided that the feuar shall have no claim against the superior for any damage which may be caused by the working of the coal. There then follows this clause—‘But reserving always to the said Andrew Swinton and his foresaids all claims which may be competent to them in respect of any such damage as aforesaid, against our tenants or tacksmen of the minerals and others in or near the said piece of ground, in so far as such tenants or tacksmen may be liable for such damage, without having any right of recourse or relief, or any other remedy against us, as trustees foresaid, and our foresaids.’

“I confess that I do not know what is referred to in the closing words of that clause, ‘without having any right of recourse,’ and so on, because so far as the then existing lease of the coal to the defenders was concerned I cannot discover any damages for which the tenants would be liable, but in regard to which they would have recourse, or a right of relief, against their landlord, the superior of the feu. Perhaps the words were inserted because there might be future leases under which the tenants might have rights of relief against the superior, or simply with the intention of making it clear that under no circumstances should the feuar have any claim against the superior.

“That, however, is not material, because it is plain that the feu-disposition bars any claim upon the pursuer's part against Mr Erskine Wemyss, who was the superior and the proprietor of the minerals, but reserves to him any claim which he might have a title to enforce against the mineral tenants, that is, the defenders.

“Upon what ground then can the pursuer claim damages for the injury done to his house from the defenders? I am of opinion that damages cannot be claimed from them ex delicto, because it is admitted that they have worked the coal properly, and have done no more than they were not only entitled but bound to do under the lease. Indeed, I did not understand the pursuer's counsel to base his claim upon delict, but solely upon an obligation undertaken by the defenders in the lease.

“The clause in the lease upon which the pursuer founds is in the following terms:—‘And further, and over and above making payment of the said fixed rents or lordships or royalties, the said lessees bind and oblige themselves and their foresaids during the currency of this lease to make compensation to the land tenants where the land is let, or to the owner where the land is not let, for all the ground which the lessees under these presents may use or injure in any of their operations under this tack, and to make good and discharge all the damages of what kind soever which the said lessees or their servants in their lawful business under their control may in any way occasion to any lands, crops thereon, houses, or woods, or fences and drains, wells or water-courses, and whether such damage shall be due to the lessors of the

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colliery or to the landlord, or land tenants, feuars, or others, all as the same shall be determined by two mutual persons to be mutually chosen or by an oversman to be named by these persons if they shall differ in opinion.’

“The first question which arises is, whether the pursuer has a title, in a question with the defenders, to sue upon the lease, to which his author was not a party, nor in any way privy? I think that he has a title to do so, as a third party who is given a jus quœsitum by the lease. I read the clause which I have quoted as obliging the defenders to settle for any damage which they may occasion directly with the party injured, and I think that the description of the parties whose claims they are to ‘make good and discharge,’ namely, the lessors of the colliery, the landlord, land tenants, and feuars, sufficiently designate the tertii in whose favour a jus quœsitum is conferred, to entitle anyone falling within the category specified to sue upon the contract.

“The next question is whether the clause is applicable to the present case?

“The defenders' counsel did not contend that the language of the clause was not wide enough to include the present claim, but he maintained that, looking to the other stipulations of the lease, the clause must be construed as being confined, at all events in so far as houses were concerned, to those existing at the date of the lease.

“What was mainly founded upon was the obligation laid upon the defenders ‘to work the whole saleable coal of each seam from roof to pavement by longwall or other method of complete excavation.’

“That obligation was only qualified by the provision that the defenders should leave sufficient masses of coal to support the shaft bottom, certain lands which had been feued and which were known as ‘Kirkland Works,’ and also any other houses or buildings on the lands before specified.’

“It was conceded that the houses and buildings there referred to were houses and buildings existing at the date of the lease, and therefore, with the exception of such an amount of coal as was required to support such buildings, the Kirkland Works and the shaft bottom, the defenders were under an absolute obligation to take out the whole of the coal. To carry out that obligation involved—especially considering that there were eight separate seams let to the defenders—that the surface of the ground should, to a greater or less extent, be brought down. The parties must have known that that would be the case, and the lease seems to me to show that they had it in view, because it is provided that the defenders ‘shall cause the gob or waste to be properly stowed so as to prevent unequal sits in the surface.’ The object of that provision seems to me to have been, not to prevent subsidence which was inevitable, but unequal subsidence.

“While the lessees were thus taken bound to excavate the whole coal, the lessors were in no way restricted in the use they might make of the surface, but were left free to erect as many houses as they chose. In such circumstances I agree with the defenders that one would not expect to find liability imposed upon and accepted by the lessees to pay for all damage which might be caused to the surface and buildings thereon by subsidence arising in consequence of the proper working of the coal in terms of the lease. If, however, the defenders have accepted such liability, then, however improvident it may have been for them to do so, they must be held to their contract.

“In this case I do not think that they can escape liability on the ground that the clause only deals with matters as they existed at the date of the lease. The clause provided, in the first place, that ‘during the currency’ of the lease the defenders shall make compensation to the tenants or the owner of the land for all ground used or injured by them in any of their operations under the lease. That in terms refers not to the state of matters existing at the date of the lease, but to what may be done during its currency. Then the defenders are taken bound ‘to make good and discharge’ all damages of whatever kind they may occasion, inter alia, to crops. I think that that plainly refers to crops which may be upon the ground during the currency of the lease, and the same may be said in regard to such things as fences and wells. In short, I think that the natural meaning of the language used is that the defenders shall make good all damage caused to subjects of the kind described which may be upon the ground during the currency of the lease, and that it is impossible to restrict the generality of the obligation as regards any of the subjects without reading into the clause words which it does not contain.

“There is, however, another possible construction of the clauses which would exclude the pursuer's claim, and which has occasioned me much difficulty.

“The granters of the lease were the present Mr Erskine Wemyss (and his curators) and the testamentary trustees of a deceased Mr Erskine Wemyss. What was let to the defenders were certain seams of coal under (1) lands of which Mr Erskine Wemyss was heir of entail in possession; (2) under the feu known as Kirkland Works; (3) under lands called the Haugh, the surface of which belonged to Mr Christie of Durie; and (4) under the sea.

“The last-mentioned coal, of which the trustees were lessees from the Crown, may be left out of view. As regards the other coal, Mr Erskine Wemyss was proprietor both of the surface and minerals of the entailed lands, the trustees were superiors of the Kirkland Works and proprietors of the coal thereunder, and they were also proprietors of the coal under Mr Christie's lands of the Haugh. The trustees, therefore, were not proprietors of the surface of any part of the coalfield let to the defenders, but Mr Erskine Wemyss was proprietor of the surface of the coalfield, in so far as it lay in the entailed lands. The pursuer's

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house is built upon these lands.

“The defenders were empowered to sink pits, to build workmen's houses, workshops, and the like, and to make roads and railways, and, in particular, a railway connecting their pits with an existing railway on the one hand, and the harbour of Leven on the other, and it was provided that the lessors should give land for such purposes on payment of surface damages. Now, so far as appears, the only one of the lessors who was in a position to give land for these purposes was Mr Erskine Wemyss.

“Further, the lease contains certain special provisions for payment by the defenders of damages for injury to land taken or used for those purposes.

“Now, my understanding is that all these special provisions are applicable only to the lands belonging to Mr Erskine Wemyss, because he of all the lessors possessed land which could be given for the purposes mentioned, and so far as I can judge, the special provisions practically covered all the damages which it might be anticipated the defenders would cause to these lands, except damage necessarily consequent upon the complete excavation of the coal.

“That being the case I was inclined to think that the clause in question might be construed as applying only to that portion of the coalfield the surface of which was not the property of the lessors, and not to that of which Mr Erskine Wemyss was proprietor both of surface and minerals, and in regard to which there were special clauses in regard to surface damage. As regards the former lands it was quite reasonable that the defenders should pay for any damage which they caused in any way, but as regards the latter it was not very consistent that they should both be taken bound to excavate the whole of the coal and to pay all damage caused thereby through inevitable subsidence.

“Upon consideration, however, I have come to be of opinion that the clause is not capable of being so construed. In terms it includes the whole lands and every sort of damage, and the language used does not appear to me to be ambiguous. In order to restrict the scope of the clause in the way I have suggested it would be necessary to read in words which are not used. Further, there is one provision in the lease which seems to me to show that the clause was intended to apply to lands belonging to Mr Erskine Wemyss as well as to the Kirkland feu and Mr Christie's lands. It is in these terms—‘And it is hereby provided that over and above fulfilling the obligations and provisions as to compensation and damages after mentioned, the said tenants and their foresaids shall be bound at their own expense to fence and keep fenced all roads and railways which they may make.’ Now, it seems to me that the context shows that the words ‘the obligations and provisions as to compensation and damages after—mentioned’ can only refer to the general damages clause under construction. Accordingly, seeing that, so far as appears, all the railways which the defenders were authorised to construct were to be upon the lands belonging to Mr Erskine Wemyss, the provision which I have last quoted shows that the general damages clause was intended to apply to these lands.

“I am therefore of opinion that the clause obliging the defenders to make good all damage caused by their operations must be construed as covering and including the claim which the pursuer now makes.

“There remains, however, the question which is raised by the fourth plea-in-law for the defenders, which is as follows—‘The lessors (the pursuer's authors) having granted feus for building in excess of what was fairly in contemplation of the parties to the said lease the pursuer is not entitled to decree.’

“Now, when the owner of both the surface and the minerals lets the latter, especially if, as here, he takes the tenant bound to completely excavate the minerals, I do not think that he retains any right to have the surface supported by the minerals unless, and to the extent to which, he reserves such right. Of course I am assuming that the tenant works the minerals in such a way as to cause as little injury as possible. If he works improperly a claim will arise ex delicto.

“If, however, the lessor takes the tenant bound to support the surface the burden imposed is of the nature of a servitude, because a long lease of minerals with an obligation to work them gives practically a right of property in the minerals. Now, it is a well-established rule that if a proprietor of lands dispones part of them, and burdens the part disponed with a servitude in favour of the part retained, he is not entitled so to use the latter as to increase the burden upon the former. I think that a similar principle applies to such a case as the present, where the tenant is upon the one hand bound to excavate the whole minerals, and upon the other to pay damages for any injury which may be done by his workings. In such a case the landowner is not, in my opinion, entitled so to use his land as materially to increase the onerosity of the obligation imposed upon the tenant, or perhaps it would be more correct to say that in such circumstances he cannot enforce the obligation. That principle has been frequently recognised, although I am not aware of any case in which it has actually been carried into effect.

“The question therefore appears to me to be whether Mr Erskine Wemyss has, by extensive feuing of his lands for building, increased the burden upon the defenders to such a material extent that he, and those taking right from him, cannot claim compensation for injury caused to the buildings by the regular working of the minerals as required by the lease.

“I put the question in that form because Mr Erskine Wemyss was in no way restrained in his use of the surface, while the defenders were bound to make good any damage which they caused, and under somewhat similar circumstances the decision in the case of Dunlop v. Corbet, 20th June 1809, F.C., was to the effect that the

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owner of the minerals was not entitled to interdict the owner of the surface from erecting buildings, but that if the latter did so he might not be entitled to damages for injury to the buildings. No judgment, however, was given upon the latter question, although opinions to the effect which I have indicated appear to have been given.

“Again in Neill's Trustees v. William Dixon, Limited, 7 R. 741, a similar view was taken. The circumstances were these. In 1802 the minerals in a piece of ground of fifty-eight acres in extent were sold to one person and the surface to another; power was given in the first disposition, and reserved in the second, to the purchaser of the minerals to win and work them on paying ‘all surface damages if any shall be thereby done to the ground of the said lands.’ In 1878 the pursuers, who were then owners of the surface, brought an action against the defenders, who were owners of and were working the minerals, for damages for injury caused to a dwelling-house and offices by subsidence consequent upon the mineral workings. It was proved that the house, which was of considerable size and value, had been built subsequently to 1802, but about sixty years before 1878, but the judgment did not turn at all upon the fact that the house had been in existence for more than the prescriptive period. The two questions which the Court had to determine were (1) whether injury to the house was ‘surface damages’ within the meaning of the disposition; and (2) whether the fact that the house was erected subsequently to the date of the dispositions relieved the defenders from liability for damages? The first question was answered in the affirmative and the second in the negative, but all the Judges based their opinions upon the latter point to a considerable extent upon the fact that the house was just such as it might have been anticipated would be built at the time when the dispositions were granted.

“Thus Lord Adam said—‘The buildings in this case are just such buildings as might naturally and reasonably be expected to be erected on the ground. If there was anything of an extraordinary or unusual nature about the buildings the result might have been different.’ In like manner the Lord Justice-Clerk (Moncreiff) said—‘I am very far from implying any opinion as to what the respective rights of the landowners and mineral owner might be in the event of the landowner altering substantially the use to which the surface was to be put at the date of the contract,’ but ‘the existing buildings at present on the surface are not of a greater extent nor of a more valuable character than are fairly suitable for the use of the ground at the date of the original separation of the surface and mineral rights.’

“There was not in Neill's Trustees any more than in Dunlop v. Corbet any judgment pronounced to the effect that if the landowner covered the ground with buildings in excess of what might reasonably be supposed to be contemplated at the date of severance, he could not recover damages for injury to such buildings, but it is clear that the learned Judges m these cases recognised that that might be the result. And I am humbly of opinion that that ought to be the result, because it is, as I have said, contrary to a well-established principle that one who has imposed an obligation upon his disponee or tenant should be allowed to substantially and materially increase the burden of that obligation for his own pleasure or profit, and should nevertheless be entitled to enforce it to the loss and injury of his disponee or tenant.

“Whether there has been such a material increase of the burden as to deprive the landowner of his right to compensation for injury must, of course, be a question of circumstances, and I shall accordingly consider what are the circumstances in this case.

“The subjects let to the defenders included the coal lying under the town of Methil, and extending for a considerable distance to landward. At the date of the lease in 1877 Methil was a small fishing town with a population of a little over six hundred persons, and the ground in the neighbourhood was entirely agricultural, although there appear to have been one or two small villages, and there was a spinning mill on the Kirkland feu. Further, the export of coal from Methil by sea was then inconsiderable in amount and was confined to small sailing-ships. It was, indeed, contemplated that increased facilities for the export of coal by sea should be given, but as the lease itself shows it was thought that Leven and not Methil would be the suitable port for that purpose. The harbour of Leven was in fact improved, but it was a tidal harbour, and it was found that the entrance silted up, and accordingly the intention that it should be used for the export of coal could not be carried out.

“It was in consequence of that that works were entered upon, namely, the construction of docks at Methil, which largely changed the character of that town and its neighbourhood. There was first a dock constructed by Mr. Erskine Wemyss at his own cost, which was opened in 1887. Then the North British Railway Company obtained an Act of Parliament authorising them to build further docks, which they did. The pursuer's witness, Mr Watson, says that the docks were opened in 1894, but Mr Carlow, the managing director of the defenders' company, says that they were not opened until 1897, and then only partially. I have no doubt that the latter is right upon that point, but I gather that the Act had been obtained and the works begun prior to 1894, when Swinton obtained his feu-disposition. The result of the construction of the docks was that a very large export trade in coal sprang up at Methil. It is now the port of export for the East of Fife coal, and it also shares with Burntisland the West of Fife trade. Naturally that increase of trade has been accompanied with a large amount of building in Methil and the neighbourhood. A glance at the map shows that since 1895 streets and rows of new houses have been erected.

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I have already said that in 1877 the population of the town of Methil was about six hundred, but in 1901 it was 2686, and the increase in the number of houses has been in proportion. Thus, in the area marked B there were no houses in 1877, but 142 have been built since 1893. In like manner in the area marked C there was only one house in 1877, and there are now 212, the greater part of which have been built since 1893; while in the area marked D there was no house in 1877, but 64 have been built since 1893. I should explain that in these figures houses do not mean separate tenements, but distinct dwelling-houses of which several may be contained in one tenement.

“It is therefore plain that the character of Methil has entirely changed since 1877. From being a small and apparently not very prosperous fishing town, it has become the centre of a great export trade in coal.

“It seems to me that it is not reasonable to suppose that such a change in the character of the place could have been in the contemplation of parties in 1877. No one could then have foreseen that some fifteen years later a railway company would intervene and build extensive docks for the accommodation of the coal trade of Fife at Methil. I may add that there are various provisions in the lease which seem to me to shew that what the parties contemplated was that the land around Methil would continue to be in the future, as it had been in the past, entirely devoted to agricultural purposes.

“If the question had arisen in regard to a house in one of the new streets which have been added to Methil, and if it had been shewn that if the defenders were liable in damages for injury to that house, they would also (at all events in the absence of special circumstances) be liable for injury caused to all the new houses, I should have thought that the case was certainly one for the application of the principle to which I have referred.

“But the pursuer's house is not in Methil, but is situated at a place called Crossroads, distant about a quarter of a mile from Methil. Further, it is admitted that there are some of the new houses for injury to which the defenders would not be liable. It appears that up to 1898 or 1900 the form of feu-disposition which Mr Erskine Wemyss used was the same as that in Swinton's case, in which the feuar's right to claim damages from the defenders was reserved. Mr Wemyss, however, seems then to have recognised that it was not just to the defenders to continue to grant feu rights in such terms, and recently he had taken his feuars bound not to claim damages for injury done by mineral workings from anyone. I do not know how many feus have been granted under the new form of charter, but I do not think that there can be many, because one witness said that the result of the new form being adopted was almost to put an end to feuing. But however that may be, it was admitted by the pursuer's counsel that there have been at least thirty feus granted (and built upon) with titles in the same terms as that of Swinton. It seems to me that that is a material number, and shews that the question which is raised is a serious one for the defenders. It is no light matter for mineral tenants who are bound both to excavate the whole minerals, and to make compensation for any buildings which they may injure in so doing, to have thirty new tenements built upon the land, and it is to be remembered that there are several seams which the defenders are bound to work, and that with the working of each seam there will probably be fresh subsidence and fresh injury to the buildings.

“In regard to Crossroads, it is situated, as the name implies, at a place where four roads meet, and at the date of the lease there were only two buildings there, the parish school and the schoolmaster's house. These were no doubt placed there because it was a convenient central position.

“The next building which was erected at Crossroads was a co-operative store in 1888. Even if all these buildings had been erected subsequent to the date of the lease I should not have thought that the defenders could have objected, because they were such as might have been anticipated for the use of the estate even if its character had not been altered. But in 1894 feus began to be taken at Crossroads, and buildings of a different kind erected. There were no fewer than six feus taken there in that year, the reason obviously being that the construction of the Methil docks had then begun. The taking of the feus seems to have been a speculation on the part of the feuars, because they built workmen's houses, in the expectation (which was justified) that the construction of the docks would raise a demand for such houses in the neighbourhood. And no doubt Crossroads was chosen just because it was in a central position and houses there would be available for men working in different parts of the district. The result has been that Crossroads from being simply the site of the parish school has become a village of workmen's houses. In 1877 the sole residents were the schoolmaster and his family, but now the population is 319, which is more than half the population of the town of Methil in 1877. I do not know precisely how many tenements have been erected, but there are sixty-five distinct dwellings.

“The pursuer founded upon the fact that some persons who reside at Crossroads are in the defenders' employment. Mr Carlow, however, says that the defenders have ample accommodation for all their workmen in houses which they have erected under the powers conferred in the lease, and that if they had required more houses they would not have built them above un—worked coal as was the case at Crossroads, but at a place where they would not interfere with the working of the coal in regular course.

“If, however, the houses at Crossroads had been all the houses erected after the date of the lease, it would have been a comparatively small matter, and the defenders would not, I think, have been freed from

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their obligation to make compensation for injury done to the houses. It seems to me, however, that the building at Crossroads cannot be regarded as an incident separate from the very extensive building which has taken place at Methil. The building in both places was part of the same movement, and the cause was the same, namely, the construction of the docks, and the consequent increase of trade and population. If such extensive building could have been foreseen, or had been contemplated when the lease was made, I think that it is most unlikely that the defenders would have undertaken the obligation to give compensation for injury to buildings. As matters stood at the date of the lease, the obligation was not an onerous one, judging from the fact that apparently the defenders have never until now been called upon to pay any compensation under it. But in view of the changed condition of matters the obligation has become very onerous, and I do not think that it is a good answer to say that the amount of coal which would require to be left to support all the houses is small compared with the total amount in the mineral field. The defenders are bound to work out the whole of the coal, and are not entitled to leave a sufficient amount to support the buildings. That differentiates this case from the ordinary one in which the tenants are entitled to leave a sufficient amount of coal for the support of new buildings, and thereby to avoid becoming liable for compensation. Further, the fact that the defenders are bound to take out the whole of the coal and also to pay compensation for injury to new buildings seems to me to render the case peculiarly favourable for the application of the principle which I have stated, and as, in my opinion, building operations which could not have been in the contemplation of the parties when the lease was granted, have been carried on to an extent which has materially increased the onerosity of the obligation laid upon the defenders, I do not think that that obligation could be enforced by Mr Erskine Wemyss, and if that is the case it was not maintained that the pursuer was in any better position.

“I shall therefore assoilzie the defenders.” The pursuer reclaimed. Counsel for the pursuer referred the Court to letters which ad passed between parties' agents, embodying an agreement that in the event of the defenders being held liable in the damages sued for, they would purchase the pursuer's property at a specified price. The arguments presented for parties on the question of liability are disclosed in the opinions of the Lord Ordinary and of the Judges in the Inner House. The following authorities were cited:—For the reclaimer— Dunlop v. Corbet, June 20, 1809, F.C.; Hamilton v. Turner and Others, July 19, 1867, 5 Macph. 1086, 4 S.L.R. 202; Neil's Trustees v. Dixon Limited, March 19, 1880, 7 R. 741, 17 S.L.R. 496; Shaw Stewart v. Macaulay, November 3, 1864, 3 Macph. 16; Aspden v. Seddon, 1875, L.R., 10 Ch. 394; White v. Dixon Limited, March 19, 1883, 10 R. (H.L.) 45, 20 S.L.R. 541; Andrew v. Henderson & Dimmack, February 24, 1871, 9 Macph. 554, 8 S.L.R. 376; Buchanan, &c. v. Andrew, March 10, 1873, 11 Macph. (H.L.) 13, 10 S.L.R. 320. For the respondents— Buchanan v. Andrew, cit. sup., 11 Macph. (H.L.), Lord Chancellor at p. 13; Shafto v. Johnston, 1863, 8 Best & Smith at p. 252; Taylor v. Shafto, 1867, 8 Best & Smith at p. 228; Kidd v. Byrne, December 16, 1875, 3 R. 255, 13 S.L.R. 170; Cadzow v. Lockhart, May 19, 1876, 3 R. 666, 13 S.L.R. 441; Morton v. Graham, November 27, 1867, 6 Macph. 71, 5 S.L.R. 59; Hallpenny v. Dewar, May 24, 1898, 25 R. 889, 35 S.L.R. 696.

At advising—