Scottish Court of Session Decisions

The Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33), enacts, sec. 70—“The company shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug and carried away, or used in the construction of the works, unless the same shall have been expressly purchased; and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby.”

Section 71—“If the owner, lessee, or occupier of any mines or minerals lying under the railway … be desirous of working the same, such owner, lessee, or occupier shall give to the company notice in writing of his intention so to do thirty days before the commencement of working;… and if it appear to the company that the working of such mines, either wholly or partially, is likely to damage the works of the railway, and if the company be desirous that such mines, or any part thereof, should be left unworked, and if they be willing to make compensation for such mines or minerals,… they shall give notice to such owner, lessee, or occupier of such their desire, and shall in such notice specify the parts of the mines under the railway.… which they shall desire to be left unworked, and for which they shall be willing to make compensation; and in such case such owner, lessee, or occupier shall not work or get the mines or minerals comprised in such notice; and the company shall make compensation for the same, and for all loss or damage occasioned by the non-working thereof, to the owner, lessee, and occupier thereof respectively.…”

On 14th December 1906 the North British Railway Company brought an action of declarator and interdict against the Budhill Coal and Sandstone Company, Glasgow, and others, in which they sought declarator ( first) that the pursuers, as proprietors of certain lands at Shettleston Station, in the parish of Shettleston, were proprietors “of ( a) the soil, ( b) the clay, (c) the sand, and ( d) the other substances presently being worked and removed by the defenders the Budhill Coal and Sandstone Company, … lying in, under, or upon the said lands, and that the said soil, clay, sand, and other substances are not comprehended or included either (1) in the mines of coal, ironstone, slate, or other minerals deemed to be excepted in terms of section 70 of the Railways Clauses Consolidation (Scotland) Act 1845, out of the conveyances of the said lands.… or (2) in the mines or minerals expressly excepted out of the said conveyances so far as mines or minerals are expressly excepted therefrom;” ( second) that the defenders were not entitled to work or remove the above-named substances; and ( third) that the defenders were not entitled to work or remove any of the said substances so as to injure the pursuers' lands or their works, railway, and station, or so as to interfere with their traffic.

Conclusions for interdict followed.

Page: 179↓

The lands in question were purchased by the pursuers at different times for the purposes of their railway undertakings. In the case of the portions of land marked Nos. 1, 2, and 2A, all mines of coal, ironstone, slate, or other minerals under these lands were excepted out of the conveyances to the company in terms of the Railways Clauses Consolidation (Scotland) Act 1845. In the case of the portion of land marked No. 3 the disposition held by the pursuers contained a reservation excepting from the conveyance “the whole coal, ironstone, limestone, and fireclay, and whole other metals and minerals in the lands above disponed … with full power and liberty to those in right thereof … to search for, work, win, and carry away the same, so far as not already done … declaring that we and our heirs and successors shall not be liable or responsible in any way to our said disponees or their fore-saids for any damage which may be occasioned to the said lands or to the buildings or erections which may be erected thereon by the working and carrying away the minerals and others before reserved.…” In the case of the lands marked No. 4 the disposition thereof held by the pursuers contained the following reservation:—“Reserving always from this conveyance the whole coal, mines, and minerals in and under the piece of ground hereby disponed, and full right and liberty to work the same, but only by pits sunk outside of the piece of ground hereby disponed and subject to and in terms of the provisions of the Railways Clauses Consolidation (Scotland) Act 1845.”

On 27th December 1905 the Budhill Coal Company sent a notice to the pursuers intimating, in terms of section 71 of the Railways Clauses Consolidation (Scotland) Act 1845, that they Intended, after the lapse of thirty days from the service of the notice, to work the minerals contained in their lease under the portion of the railway, and that they intended (without prejudice to their right to vary the order of working) to commence to work the sandstone at a stated point, and to work it in a certain direction, the seam of sandstone being about 12 feet thick, and thereafter to work the building rock underneath the sandstone, and thereafter the seam of coal thereunder, and the fireclay associated with the coal. The company shortly thereafter commenced to excavate and to remove what the pursuers averred to be “soil and common clay, and sand in a more or less consolidated condition mixed with clay.”

The pursuers averred—“(Cond. 5)… None of these substances are minerals within the meaning of the Railways Clauses Consolidation (Scotland) Act 1845, or of the express reservation hereinbefore quoted. None of these substances so removed is coal, ironstone, or slate, or anything ejusdem generis.”

In answer the defenders stated—“(Ans. 5) … Explained that the defenders' workings are in the upper part of a post or stratum of sandstone about 40 feet in thickness, which extends generally below all the surface of the properties.… A bore put down in the north-east corner of the ground coloured blue shows that on the surface there are 3 feet of soil, and then about 8 feet of brown clay, and then 4 feet of hard white sandstone, and then 8 feet of hard white sandstone shading into grey, then 14 feet of fine grey sandstone, then again about 13 feet of hard sandstone; and coal lies below. What the defenders are at present working is part of the fine grey sandstone divided into two or three beds by partings of sandy clay, which vary in thickness from a hair line up to three-eighths of an inch. It is a peculiar sandstone containing less silica and a little more alumina, iron oxide, lime and magnesia than usual, and it is a material of peculiar quality, difficult to procure and well suited, when ground down, for use in some kinds of important castings, and is of a high commercial value.… Explained further that neither common clay nor sand nor soil has been wrought by the defenders from the pursuers' lands.”

The pursuers further averred—“(Cond. 6) The said notice was not given bona fide but mala fide. The substances which are being worked are not being worked in the ordinary course of business. The defenders are not working any of the substances in question as stone but as sand.… The said substance cannot be worked at a profit, and is not being worked for its value, but with the view to injure the lands, railways, and station, and works of the pursuers, and thereby compel them to treat the substance as a mineral, stop its working, and make compensation.” These averments were denied by the defenders.

The pursuers pleaded, inter alia—“(1) The pursuers are entitled to decree in terms of the first declaratory conclusion of the summons in respect that—( a) The soil, clay, sand, and other substances which are being worked and removed by the defenders … are not mines of coal, ironstone, slate, or other minerals within the meaning of the Railways Clauses Consolidation (Scotland) Act 1845. ( b) The soil, clay, sand, and other substances in the lands belonging to the pursuers … are no part of the coal, ironstone, limestone, and fireclay, and whole other metals and minerals excepted and reserved in the foresaid disposition held by the pursuers of the said lands.… (3) The notice given by the defenders, the Budhill Coal and Sandstone Company,… having been given mala fide for the sole purpose of compelling the pursuers to compensate the said defenders, and the workings by the said defenders having been proceeded with mala fide not in the ordinary course of working the said substances, but merely to rear up a fictitious claim against the pursuers, interdict should be granted as craved. (4) The pursuers being entitled to support for their lands, railways, station, and works from the adjoining lands are entitled to declarator in terms of the third conclusion of the summons and to interdict as second craved.”

Page: 180↓

The defenders pleaded, inter alia—“(5) Separatim—The sandstone worked by the defenders being a mineral in the sense of the titles and of the statute, and being worked to profit by the defenders in a manner proper and necessary for such profitable use thereof, the defenders should be assoilzied.”

On 22nd June 1907 the Lord Ordinary ( Dundas) after a proof, the import of which sufficiently appears from his Lordship's opinion ( infra), dismissed the action.

Opinion.—“… The proximate cause of the action was a notice by the defenders, the said lessees, to the pursuers, dated 27th December 1905, whereby they intimated, in terms of section 71 of the Railways Clauses Consolidation (Scotland) Act 1845, that they intended, after the lapse of thirty days from the service of the notice, to work the minerals contained in their lease under that portion of the railway shown upon the accompanying plan, it being their intention (without prejudice to their right to vary the order of working) to commence to work the sandstone at or near a stated point in the area coloured blue, and to work it in a northerly and northwesterly direction, the seam of sandstone being about 12 feet thick, and thereafter to work the building rock underlying the said sandstone, and thereafter the seam of coal thereunder and the fireclay associated therewith. The pursuers served no counter notice, and the said defenders commenced operations at or near the point indicated by sinking a mine and carrying their workings under a portion of the ground coloured brown, and shown on the plan, with the result that a certain amount of subsidence occurred at and near Shettleston Station. During the proof and in the arguments a variety of questions of general importance were developed. I shall endeavour to deal with these; but I do so under the protest that the summons is not, as I shall presently explain, so framed as, in my opinion, to raise them sharply for decision. The pursuers' counsel argued that sandstone is not a mineral within the meaning of the conveyances to the Railway Company, or any of them; and further that, in any event, what the defenders are at present working and removing is not of that character. It is, I think, absolutely concluded by authority, so far as I am concerned, that the exception of ‘mines of coal, ironstone, slate, and other minerals’ in section 70 of the Railways Clauses Consolidation (Scotland) Act 1845 covers freestone, including in that generic term sandstone and limestone. That was decided in the recent case of Glasgow and South Western Railway v Bain, 1893, 21 R. 134. But Bain's case does not stand alone. In Jamieson, 1868, 6 S.L.R. 188, the Lord Ordinary (Kinloch) so decided in regard to limestone, and his decision, which was acquiesced in, was expressly approved by the Inner House in Nisbet Hamilton, 1886, 13 R. 454, and by some, at all events, of the judges in Farie, 1887, 14 R. 346. It is true that the last-cited case was reversed on appeal by the House of Lords ( 1888, 15 R. (H.L.) 94), but I observe that Lord Watson, who was one of the majority in that House, said (at p. 101) ‘the important question still remains, what are the minerals referred to other than coal, ironstone, or slate? My present impression is that “other minerals” must necessarily include all minerals which can reasonably be said to be ejusdem generis with any of those enumerated. Slate being one of them, I do not think it would be possible to exclude freestone or limestone strata.’ In Bain's case ( sup. cit.) the Lord Justice-Clerk said, ‘Accordingly, in the case of Farie, in the House of Lords, it appears to have been regarded as impossible to exclude freestone and limestone when slate was included.’ I may also refer to the decision of the House of Lords in Midland Railway Company, 1889, 15 A.C. 19, which is to the same effect. It was, indeed, argued for the pursuers that the exception in section 70 does not include stone at all. This argument was based upon certain dicta by Lord Macnaghten in Farie's case ( 15 R. (H.L.) at pp. 110, 111), where his Lordship, in developing his view (which has since been overruled, e.g., in Midland Railway Company, sup. cit.) that ‘mines’ do not include open cast workings, dealt with sections 25 and 36 of the Scots Act of 1845 ‘with respect to the temporary occupation of land.’ I doubt whether Lord Macnaghten's dicta, which of course must be regarded as of great weight, go the length of supporting the pursuers' argument, but if they do so, then I think they must give way to the series of decisions already referred to, which directly negative the pursuers' proposition. The pursuers' counsel further founded upon the cases of Menzies v. Breadalbane, 10th June 1818, F.C. aff. 1822, 1 Shaw App. 225, and Duke of Hamilton, 1841, 3 D. 1121. In the first of these, the ‘Bolfracks’ case, the rubric in the Court of Session report is—‘Found that a reservation by the superior in a feu-charter of “the haill mines and minerals, of whatever nature and quality,” does not comprehend a quarry of fine stone of peculiar qualities useful for building.’ The report describes the subject in dispute as ‘a vein of stone of a rare species, peculiarly fitted for architectural purposes by its admitting of ornamental finishings and by its resisting the weather.’ The defender there argued that ‘in a feu-grant, particularly of a highland property, the parties must have intended to convey all the rocks of which the property was composed, because in many districts the property consists of little else.’ The Lords by a majority, and reversing the Lord Ordinary (Pitmilly), found as above. The judgment was affirmed by the House of Lords. The rubric in I Shaw App. 225, broadly describes the subject as ‘a quarry of freestone.’ The briefly reported opinion of the Lord Chancellor (Eldon) proceeds upon the distinction between the canons of construction applicable to leases and feu-charters respectively and concludes thus—‘It does appear to me to be the better opinion that mines and minerals in

Page: 181↓

this feu did not mean stone-quarries, and that the opinion of the majority of the judges is therefore right.’ The Duke of Hamilton's case decided ‘in conformity with the case of Menzies v. Breadalbane, that a reservation in an excambion of the liberty of working coal and other metals, fossils and minerals, did not comprehend freestone.’ The learned Judges evidently regarded Menzies’ case as establishing a general principle to the effect stated—a view which, with all respect, I think might require to be reconsidered if a similar question should arise. But it is sufficient for the present purpose to observe that cases decided upon the construction of feu-charters or other agreements between parties can afford little or no assistance in determining the true meaning of a statutory conveyance embodying the statutory exception of mines and minerals. This has been repeatedly enunciated by the highest authorities, and is perhaps nowhere more clearly laid down than it was by Lord Herschell in Midland Railway Company, 1889, 15 A.C., at p. 27. So far, therefore, as regards the pursuers' conveyances of the lands Nos. 1, 2, 2A, and 4 are concerned, I am of opinion that sandstone is within the exception expressed in section 70 and impliedly embodied in the deeds. It may be open to question whether a similar proposition can be affirmed in regard to the pursuers' title to the pink lands No. 3. But I see no reason to decide that matter one way or the other, because there is no suggestion that the defenders are about to carry their workings under that area, and there are obvious reasons which render such a course improbable.

“I turn now to the pursuers' subsidiary argument, viz., that what the defenders are at present removing by their workings is not sandstone within the meaning of the said exceptions in their titles. There is, I think, no dispute that there is a large amount of undoubted sandstone in this district, though its quality is said to vary from part to part. The defenders are at present engaged in blasting the upper portion of the material and converting it into moulders’ sand, for which it appears to be suitable. They state that their intention is, when they reach what they allege to be harder sandstone suitable for building, to work that for sale by open cast quarry. The question raised by the argument must, I consider, be looked at in the light of the whole evidence as to the character of the subjacent materials in the vicinity of the defenders' workings. The pursuers' witnesses describe the material which is now being got out as ‘a peculiar kind of rotten stone, decomposed stone,’ ‘consolidated sand and clay,’ ‘rotten sandstone,’ ‘a soft rotten rock,' ‘stone by courtesy, not building stone,’ and so forth. The defenders' witnesses, on the other hand, sav that what is presently being wrought is suitable for moulders’ sand, and that below there is a quantity of good building sandstone. Some of them describe the latter more modestly as ‘an ordinary building freestone, poor of quality,’ ‘a poor variety of building stone but could be used as such,’ ‘a first-class quarry of good working freestone for speculative building purposes,’ ‘the usual building stone, I would not compare it with the best, such as Craigleith,’ and so forth. The pursuers' counsel argued, as I understood him, that neither the softer stuff now being wrought (with which alone the summons deals), nor the alleged harder material below (which appears to be included in the language of his first plea-in-law), can be dealt with as minerals, because, as he put it, they are of no merchantable value, not being capable of being wrought to profit. I pause to observe that I do not think that capacity of earning profit is the true test of whether or not a stone is ‘merchantable’ and is therefore a mineral, in such a question as this. For example, if a person owned a small seam of coal under a railway, I do not imagine that the company would be entitled to prohibit him from removing it merely because he might not be able to sell it at a profit. The proposition which the pursuers contend for is said to have been laid down in Nisbet Hamilton, 1886, 13 R. 454. In that case a proprietor sought payment for rock removed by a railway company from the sides of a railway cutting within the limits of the land compulsorily acquired from her by the company. The latter argued in defence ( a) that the rock did not belong to the pursuer but to the company, because by their conveyance they acquired the land and all that might be in it, within the limits of the conveyance, down to formation level; ( b) that the rock was not a mineral within the meaning of section 70; and (c that nothing had been removed except what was necessary for the safe working and maintenance of the line. The Lord Ordinary (Fraser) decided in favour of the company solely upon the third ground. Lord Adam, who pronounced the opinion of the Court in the First Division, had some doubt about the ground of decision, but he decided for the company upon the broad general argument first above stated. Nothing else was necessary to the judgment; but Lord Adam, in considering the second of the company's contentions, did express an opinion that ‘while the stone was of some value to the defenders for making or repairing embankments.… it was of no merchantable value whatever.’ By this I do not think his Lordship intended to express or imply that in order to come within the exception in section 70 it is necessary that stone should be wrought, or capable of being wrought, at a profit. I am confirmed in this view by what the same learned Judge said in Farie's case, 14 R., at pp. 366, 367. Lord Adam there quoted, with approval, the tests applied by English judges, viz., that the material should be ‘of some value’ or ‘of commercial value;’ and he also referred to the opinion of Lord Romilly, M.R., in Checkley, L.R., 4 Equity 19, where his Lordship used the words ‘anything … which is useful for any purpose whatever.’ If I have rightly interpreted Lord Adam's meaning,

Page: 182↓

it appears to be in harmony with the views upon this matter of the learned Lords in Farie's case, and particularly with that expressed— 15 R. (H.L.), at p. 96—by the Lord Chancellor (Halsbury). I observe that in a recent English case his Lordship reiterated his opinion upon the point, and said, during; the course of the argument—‘I think it is absolutely wrong to say that the question whether a thing can be worked at a profit or not is to determine whether it is a mineral or not’— Todd, Birleston, & Company, 1903, 1 K.B. 603, at p. 606. I refer also to Lord Herschell's explanation in Midland Railway Company, 1889, 15 A.C., at pp. 26–27 of his opinion in Farie's case, 15 R. (H.L.), at p. 105. But I need not labour this matter further, because I think it is clear, looking to the mass of evidence hinc inde contained in the proof, that I am not in a position here and now to affirm, even to the restricted extent and effect which the summons contemplates, that the ‘substances presently being worked’ are not such as fall within the exceptions referred to; and still less that such is the case as regards the ‘similar substances in the remainder of said lands’ to which the pursuer's first plea-inlaw seems to extend.

I believe that this is the stage at which I ought to notice an argument which was strenuously advanced for the pursuers, but of which I can find no trace upon the record. It was to the effect that, even assuming that the substances which the defenders have begun to work out are minerals within the exception contained in section 70, they have no right so to work them as to injure or bring down the surface of the pursuers' land. It was conceded that the contrary was decided forty years ago by the House of Lords in the English case of Bennett, 1867, 2 E. and I. App. 27, which has not only been followed by numerous decisions in England, but has hitherto been regarded as good law in Scotland—see, for example, Haunchwood, Brick, &c., Company, 1882, 20 Ch. Div. 552; Ruabon Brick, &c., Company, 1893, 1 Ch. 427; Blades, 1901, 2 Ch. 624; Todd, Birleston & Company, 1903, 1 K.B. 603; Farie's case, sup. cit.; Dixon, 1879, 7 R. 216 ( per Lord Adam), referred to in Farie's case by Lord President Inglis and Lord Adam, 14 R., at p. 353 and p. 365, and by Lord Herschell in Midland, Railway Company, 1889, 15 A.C., at p. 32; Ferguson's ‘Deas on Railways,’ p. 192. It is, however, now urged that there is a vital though hitherto unnoticed distinction between the language of section 79 of the English Act and the corresponding section 72 of our own statute. I am satisfied, upon a careful study of the two sections, that this is an entirely mistaken idea. The language of the sections is, for some reason, different, but the meaning appears to me to be the same. The scheme of the English section is that if before the expiration of the thirty days the company do not state their willingness to treat with the mine owner or lessee for payment of compensation, it shall be lawful for the latter to work the mines, or any part thereof for which the company shall not have agreed to pay compensation, ‘so that the same be done in a manner proper and necessary for the beneficial working thereof, and according to the usual manner of working such mines in the district where the same shall be situate;’ and then the section proceeds, quite intelligibly, though perhaps tautologically, to provide that if any damage be occasioned to the railway by ‘improper working of such mines,’ the same shall be repaired and made good by the mine owner at his own expense. Section 72 of the Scottish Act is not, to my thinking, substantially different. It provides that, upon the same hypothesis, it shall be lawful for the mine owner or lessee to work the mines, or such parts thereof for which the company shall not have agreed to make compensation, up to the limits of the mines for which they shall have agreed to make compensation, ‘in such manner as such owner, lessee, or occupier shall think fit, for the purpose of getting the minerals contained therein,'—the words quoted seem to me to be, substantially equivalent to those which I quoted from the English section, the idea of both being, as I think, proper as contrasted with improper mining operations; and the section proceeds, perhaps unnecessarily, as in the case of the English section, to state the converse proposition, viz., that if any damage be occasioned to the railway ‘by the working or getting of any such minerals which the company shall so have required to be left unworked, and for which they shall so have agreed to make compensation,'—and this is, I think, the analogue of the ‘improper working’ of the English section,—the damage shall be made good by the owner or lessee, at his own expense.

If the views which I have now expressed, perhaps at too great length, are correct, I think it is manifest that no practical effect can be given to the ( first) declaratory conclusion of the summons. There is no evidence that the defenders are removing ‘soil’ or ‘clay,'except very thin streaks of clay, the removal of which would be a necessity of working the sandstone, assuming that the defenders are entitled to work out the latter. As regards ‘sand’ and ‘other substances,’ the summons is not framed so as to meet in any adequate manner the evidence and arguments to which I have referred, and in regard to which my opinion is substantially adverse to the pursuers. Nor, in my opinion, can the ( second) declaratory conclusion, and the interdict relative to it, receive practical effect if the views already expressed are sound, unless, indeed, the allegation of mala fides on the part of the defenders, to which I shall presently allude, is well founded.

The ( third) declaratory conclusion can, in my judgment, be disposed of in a few words. It is really based upon a claim by the pursuers for adjacent support; and their counsel referred to the recent case of Turners Limited, 1904, 6 F. 900. But assuming everything else in the pursuers' favour, it seems sufficient to say that there

Page: 183↓

is nothing, so far as I can see, in the record or in the evidence, to warrant the conclusion.

I now come to a question which, if I do not mistake, lies at the very core of the pursuers' case, but which, oddly enough, is not specifically referred to in their summons, though it might probably be given effect to, if necessary, under the conclusions for interdict. The point is sharply enough raised by the pursuers' third plea-in-law, and is to the effect that the defenders' notice was ‘given mala fide for the sole purpose of compelling the pursuers to compensate the said defenders,’ and that their workings have been proceeded with mala fide, ‘not in the ordinary course of working the said substances, but merely to rear up a fictitious claim against the pursuers.’ I do not doubt that now and again unfounded claims are brought against the railway companies with the sole object, in the words of the pursuers' witnesses, of ‘harassing’ or ‘getting at’ the company, nor that if such a case were fairly proved the Court would be entitled and bound to interfere on the company's behalf. But I think that very clear proof would be required to justify such intervention. A case of this sort was presented, but failed, in Midland Railway Company, 1887, 37 Ch. Div. 386. affd. 1889, 15 A.C. 19. In that case there had been no workings, nor had any lease of the minerals been granted. I entirely accept the law there laid down by Cotton, L.J., and quoted with approval by Lord Herschell, that ‘there must not only be an expression of the desire, but an honest actual existence of the desire, to work either by himself or his lessees, to justify an owner in giving such a notice. If he gave the notice when it was obvious that there were no minerals, or that he could not possibly intend either to let or work them himself, that would be vexatious, and the Court would not allow that to be acted upon.’ But the pursuers' case falls in my judgment far short of the sort of case there supposed. It depends upon the evidence as to the history of the Mathers' estate and of its minerals; upon the methods resorted to by the lessees for mining out the ‘rotten rock’ for moulders' sand; and upon the opinions of the pursuers' skilled witnesses as to the impossibility of working any of the subjacent materials to a profit. The pursuers' case is I think at its best one of suspicion. On the other hand, I saw no reason, so far as their demeanour was concerned, to doubt the honesty of the evidence given by Mr Mather and the Messrs Loudon. Further, I find it difficult to suppose that a scheme which is being carried on under the auspices and with the approval of Mr Rankine, a witness upon whose experience and integrity the Court is accustomed to rely, is one of the mala fide character which is alleged against it. Mr Rankine depones that he ‘had nothing to do with the actual looking out for a tenant,’ but after the tenants were accepted the matter came before him. He ‘unquestionably approved of the sandstone being let in the area in question.’ He considers that the defenders' mine, the sinking of which was accomplished before his advice was sought, is ‘an excellent means of ascertaining what is there,’ and says that ‘what has been done in the way of opening out the stone here has been properly done with a view to the getting of the material in the shape of sandstone in this ground, although I would regard it as preliminary to open cast for the harder material.’ Other witnesses of experience in their respective lines of business, such as Mr M'Laughlan and Mr Barlas, speak confidently as to the future prospects of the concern; and there is a considerable body of evidence to the effect that the defenders's and stone is at least nowise inferior to that obtainable at Haughyett Quarry, the contents of which appear to have been regarded in Bain's case ( 21 R. 134) as being good workable freestone. Mr Tatlock, the well-known analyst, also depones—‘The harder rock which I saw recently appeared to be fair building rock. It would not rank with the best, such as Craigleith, but it is quite as good as well-known building stones that I have had to examine.’ I may observe in passing that Mr Tatlock's earlier reports upon the samples submitted to him seem to me to have as little to do with the real merits of this case as Mr Marshall's much vaunted bottle of muddy water. I do not refer to these witnesses for the defenders as indicating that I agree with their evidence, but merely for the purpose of showing why I cannot accept the view that this claim is a wholly mala fide and vexatious one. I carefully refrain from making the smallest indication of any formed opinion as to the value, if any, of the defenders' subjacent materials. That is a question which in my judgment must, failing agreement, be decided by arbiters or an oversman and not by this Court. All that I now say is that I am not prepared upon the evidence before me to sustain the pursuers' third plea-in-law. In conclusion I may refer to a passage in the opinion of Chitty, J., in the Midland Railway case ( 37 Ch. Div. p. 392), as fairly representing my views upon the point and perhaps affording some answer to Mr Hall Blyth's complaint as to his experience of ‘inflated damages.’

“I do not think that there is any other point which requires to be dealt with. Upon the whole matter I am satisfied that the action must be dismissed with expenses. The chief regret which I entertain is that it should have been necessary to deliver so long an opinion in regard to a summons which does not directly raise any of the issues with which I have thought it my duty to deal.”

The pursuers reclaimed, and argued—(1) The substance de facto being mined was not sandstone but sand which had not reached such a degree of consolidation as to pass from sand to sandstone. Accordingly it was not a mineral within the meaning of section 70 of the Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33). It was admittedly unsuitable for building purposes, though no doubt when ground down it had a certain value as moulders' sand. Sand was admittedly not a mineral. A mine-owner

Page: 184↓

had no further right than to remove soft substances round or above a mineral; he was not entitled to sell it— Ruabon Brick and TerraCotta Company v. Great Western Railway Company, [1893] 1 Ch 427. (2) Assuming that the substance being worked was sandstone, sandstone was not a mineral within the meaning of sec. 70 of the 1845 Act. Owing to the diversity of judicial opinion as to the meaning of the term ‘mineral’ it was impossible to get a criterion of general applicability; the best manner of determining the question was to consider each subjecta materies, and see if it came within the words of the statute. At common law a reservation of minerals in a conveyance had been held not to include freestone— Menzies v. Breadalbane, June 10, 1818, F.C., aff. 1822, 1 Sh. App. 225; Duke of Hamilton v. Bentley, June 29, 1841, 3 D. 1121. “Mines and minerals” must receive the same interpretation under the Railways Clauses Act as they received at common law— Magistrates of Glasgow v. Farie, January 21, 1877, 14 R. 346, 24 S.L.R. 253, rev. August 10, 1888, 15 R. (H.L.) 94, 26 S.L.R. 229. The only cases where sandstone had been held to be a mineral were Jamieson v. North British Railway Company, 1868, 6 S.L.R. 188, and Glasgow and South-Western Railway Company v. Bain, November 15, 1893, 21 R. 134, 31 S.L.R. 98; but in the first of these the judgment went on the assumption that every substance of merchantable value below the soil was a mineral, and this assumption was negatived by the cases of Magistrates of Glasgow v. Farie, cit. supra; North British Railway Company v. Turners Limited, July 2, 1904, 6 F. 900, 41 S.L.R. 706; Todd, Birleston, & Company v. North-Eastern Railway Company, [1903] 1 KB 603; Midland Railway Company v. Haunchwood Brick and Tile Company (1882), L.R., 20Ch. D. 552. The substance in question here though merchantable as sand was not merchantable as sandstone, and could not fall under the statutory reservation— Nisbet Hamilton v. North British Railway Company, January 15, 1886, 13 R. 454, 23 S.L.R. 295. (3) The defenders' notice to the Railway Company was not given bona fide, for ( a) this was the only case in Scotland where moulders’ sand was worked by mining, the normal method being by working open-cast; ( b) the direction of the workings, namely, towards the railway, was not the reasonable direction; ( c) the work was not being done at a profit, the advice taken by the defenders from experts was to the effect that it could not be worked profitably; and ( d) the defenders had endeavoured to feu the ground for building purposes, and this was not consistent with a belief that this was a rich mineral field. On the question of bona fides reference was made to Glasgow and South-Western Railway Company v. Bain ( cit. supra); Midland Railway Company v. Haunchwood Brick and Tile Company ( cit. supra); Midland Railway Company v. Robinson, (1887) L.R., 37 Ch. Div. 386, aff. 1889 L.R., 15 A.C. 19; Magistrates of Glasgow v. Farie ( cit. supra).

Argued for the respondents—(1) The substance being worked was sandstone; there was evidence to show that it was capable of being used for building purposes, and the fact that the defenders chose to grind it down did not deprive it of its character as sandstone. (2) Sandstone was a mineral in the sense of section 70 of the 1845 Act. The material being worked and what was admittedly sandstone formed parts of a stratum, and the soft upper part had a special value as moulders' sand. The only two elements necessary to make it a mineral protected by the 1845 Act were therefore present— Midland Railway v. Checkley, (1867) L.R., 4Eq. 19; Nisbet Hamilton v. North British Railway Company ( cit. supra). Further, it was settled that the reservation in section 70 covered freestone, including in that generic term sandstone and limestone— Glasgow and South-Western Railway Company v. Bain ( cit. supra); Jamieson v. North British Railway Company ( cit. supra); Midland Railway Company v. Robinson ( cit. supra); Caledonian Railway v. William Dixon, Limited, November 13, 1879, 7 R. 216, 17 S.L.R. 102. The pursuers' argument was based upon the divergence of the views of the judges in Magistrates of Glasgow v. Farie ( cit. supra), and they had cited no authority to show that the law and practice in Scotland for the last forty years had been altered. (3) As to the bona fides of the defenders, ( a) the working the substance by mining instead of open-cast was the only method open to the defenders without trespassing on the pursuers' property; ( b) the pursuers had no right to dictate as to the direction in which the mine was to be worked— Eden v. North-Eastern Railway Company, [1907] AC 400; (c) the pursuers were not entitled to question the motives of the defenders in working as they chose— Mayor of Bradford v. Pickles, [1895] AC 587. Unless the pursuers could show that there were no minerals being worked and that the defenders had no real desire to work, they were not entitled to interdict— Midland Railway Company v. Robinson ( cit. supra).

At advising—