Scottish Court of Session Decisions

The Duke of Abercorn raised an action against Merry & Cuninghame, Limited, carrying on business as coal and iron masters in Glasgow and elsewhere, to recover damages from them for subsidence caused by their mineral workings.

The defenders pleaded, inter alia—“(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (2) The action is incompetent in respect that the damages claimable by the pursuer in respect of the defenders' mineral workings have been assessed and paid for in the former action. (4) The pursuer is in the circumstances barred from maintaining the present action.”

The facts of the case and the nature of the pursuer's averments sufficiently appear from the opinion of the Lord Ordinary ( Mackenzie), who on 30th June 1908 sustained the first plea-in-law for the defenders and dismissed the action.

Opinion.—“This is an action by the owner of land against the mineral tenants to recover damages for subsidence caused by their mineral workings.

“The pursuer let the coal in his lands and farms of Linclive, Barskiven, and the South and East Candrens, in the Barony Parish of Paisley, to the defenders for fifteen years from Martinmas 1900, with certain breaks. The defenders terminated the lease at Martinmas 1906.

“By the lease it was provided, inter alia, as follows—‘And further, the said tenants hereby bind and oblige themselves to pay all damages of what kind soever that may be occasioned in any way by their operations

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or works and manufactures, whether such damage be done to the said Duke, as proprietor, or to the agricultural tenants of the lands, or to any other person or persons to whom the said Duke may be liable.’

“In February 1907 the pursuer sued the defenders for £4474, 10s. 3d., in respect of 62·028 acres alleged to have been damaged by them. This sum was afterwards restricted to £2877, 4s. 8d., in consequence of the payment of £1597, 5s. 7d. The result of that litigation was that the defenders ultimately tendered £1652, 14s. 5d., and expenses, which was accepted.

“The averments upon which the present action are based are these—‘Subsequent to the raising of the said action the pursuer ascertained that a further large extent of ground had been damaged by the defenders' operations. By letter dated 27th November 1907 the pursuer's agents intimated to the defenders' agents acceptance of the tender in respect of the damage which formed the subject of the said action, and also a claim in respect of the said further damage. A plan showing this additional ground so damaged, and amounting to 58·621 acres, was enclosed in the said letter. A tabular statement showing in detail the additional areas of ground damaged will be produced at the calling hereof. The amount of such damage is moderately estimated at £1500, which is the sum (first) sued for.’ A claim is also made for £100 in respect of a ‘sink’ affecting the Oandren Road, but it was not contended that the averment in regard to this (contained in cond. 8) raised any different question from that which turns on the averments in cond. 7, to which attention may therefore be confined.

“The question is whether these averments are relevant. It is a well-settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all. Nemo debet bis vexari pro eadem causa. The defenders contend that they are being sued for damages arising from the same cause of action in respect of which they have already paid damages in the previous case. If this is so, they cannot be sued. If a fresh cause of action has emerged since the previous litigation, then they can.

“It is settled by Bonomi v. Backhouse, 9 H.L.C. 503, and Darley Main Colliery Company v. Mitchell, 14 QBD 125, 11 A.C. 127, that it is the subsidence and not the excavation which is the cause of action. The excavation, though the causa causans, is not the cause of action, though there may result from it successive subsidences, which may each be a separate cause of action.

“If the subsidence in respect of which the present action is brought is not a fresh subsidence since the previous action, but the same subsidence in respect of which damages have been already paid, then the pursuer is suing the defenders twice in respect of the same cause of action. A reference to the plan founded on in cond. 7 shows that the 58·621 acres now claimed for either surround or are adjacent to the 62·028 acres previously paid for. It is not said they have been damaged by a fresh subsidence. The pursuers' counsel were given an opportunity to amend, but stated they were unable to aver that the damage had been done by a subsidence which had occurred subsequent to the last case. If the present action were allowed to go on it would mean that the pursuer could bring a separate action for the damage done to each field, or even each acre. Unless he can aver, which he has failed to do, that the damage in respect of which he now sues was the result of a new subsidence I am of opinion the action is irrelevant. The action will therefore be dismissed with expenses.”

The pursuer reclaimed, and argued—The Lord Ordinary was wrong in holding that his averments were irrelevant and that it was necessary to aver that a new subsidence had occurred subsequent to the date of raising the former action. The damages claimed in the present action were in respect of lands different from those in respect of which he had received damages in the former action. The damage and not the removal of support was the cause of action, and there was therefore no eadem causa here. The lands being different, all that the pursuer required to aver was that damage had been occasioned by the defenders' operations, and not the date of the subsidence— Mitchell v. Darley Main Colliery Company, 1884, 14 QBD 125; West Leigh Colliery Company v. Tunnicliffe & Hampson, Limited, [1908] AC 27, 45 S.L.R. 970; Crumbie v. Wallsend Local Board, [1891] 1 Q.B.D. 503; Brunsden v. Humphrey, (1884) L.R., 14 Q.B.D. 141, per Bowen, L.J., at p. 147.

Argued for defenders (respondents)—The pursuer must show a new ground of action, and he had not done so. If the ground of action was bringing down the surface, he must show that the subsidence had occurred since the date of raising the former action. Once subsidence had occurred the ground of action emerged, and a second action on that ground was incompetent— Stevenson v. Pontifex & Wood, December 7, 1887, 15 R. 125, 25 S.L.R. 120; Brunsden ( cit. supra), per Coleridge, C. J.; Crumbie ( cit. sup.); Seddon v. Tutop, 1796, 6 T.R. 607, 3 Rev. Rep. 274; Great Laxey Mining Company v. Clague, (1878) L.R., 4 A.C. 115. Emerging damage was not a new ground of action. If the pursuer relied solely on a separation in point of place and not of time, he must show such separation as to make it clear that the damage complained of was caused by a different subsidence. He had not done so, as the ground now said to be injured was immediately adjacent to the ground for which compensation had previously been obtained.

At advising—