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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Livingstone Mitchell, Esq. of Parkhall v. The Governor and Company of Undertakers for raising Thames Water in York Buildings, &c. [1777] UKHL 6_Paton_795 (21 March 1777)
URL: http://www.bailii.org/uk/cases/UKHL/1777/6_Paton_795.html
Cite as: [1777] UKHL 6_Paton_795
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SCOTTISH_HoL_JURY_COURT
Page: 795↓
(1777) 6 Paton 795
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.
No. 145
v.
House of Lords,
Subject_Charter — Superior and Vassal — Right to Coal. —
The appellant laid claim to the coal of his lands of Madiston, although in granting the feu the superior had reserved the coal. Held that neither by the clan Act, nor the charter from the Crown, subsequent to the date of the superior's attainder, was the coal granted to the appellant's ancestors, but that the right to the same was vested in the respondents, as disponees of the Crown.
The lands of Madiston being part of the barony of Haining, belonged anciently to the Earl of Callender, and were feued by the Earl to the appellant's ancestor (Marshall) in 1647, to be holden of the Earl and his successors.
In this charter, there was the following clause of reservation as to the coal mines:
“Reservata liberate et privilegio, nobis, hæredibus et successoribus nostris, effodiendi et lucrandi carbones, calcem, et lapides calcis, jactandi lie holes et sinks, faciendi lie shanks, vias et passagia, in et ad ead: infra aliquam partem terrarum supra desposit, pro solutione dictis Edwardo, suis filiis, orumque prædictis, quid damni et detrimenti per ead, super eorum terras arabiles sustinebunt per decisionem dorum honestorum virorum, quorum unum per nos et alterum per illos eligendum.”
In the subsequent charter and precepts from the family of Callender to the heirs and successors of the said Edward Marshall, the same reservation was repeated.
By the clan Act, 1 George I., it was declared, that those vassals holding lands of superiors, who had been guilty of high treason, if they “continue peaceable, and in dutiful allegiance to his majesty,” they were thereby authorised to hold the same of his majesty in fee and heritage for ever.
The Earl of Callender having been attainted of high treason in 1715, the appellant's father took the benefit of the statute, and obtained a charter from the Crown, and this charter contained a clause of novodamus.
As attendant on the forfeiture of the Earl, the barony of
Page: 796↓
A suspension and interdict was brought by the appellant against the respondents and their tenants of the coal, in which he made claim to the full right in the coal of these lands, under the circumstances above stated.
Jan. 31, 1776.
The Lord Ordinary pronounced this interlocutor:
“Having considered this representation and answers thereto, and state of the process, Find that the York Buildings' Company has right to the coal in the lands in question, and that Mr Livingstone Mitchell has no right thereto; finds that the York Buildings Company's tacksmen have right to continue their possession of the said coal; assoilzies the defenders from the process of declarator; finds the letters orderly proceeded with, and discharges the caution for damages found by the Earl of Errol, and James King (the tenants), and decerns.”
July 10, 1776.
Nov. 29, 1776.
On reclaiming petition, the Court adhered, and on a second reclaiming petition the Court again adhered.
Against these interlocutors the present appeal was brought to the House of Lords.
After hearing counsel,
It was ordered and adjudged, that the interlocutors complained of be, and the same are hereby affirmed.
Counsel: For the Appellant,
Henry Dundas,
Al. Wedderburn,
J. Dunning.
For the Respondents,
E. Thurlow,
Alex. Wight.