United Kingdom House of Lords Decisions

The Lord Ordinary remitted to men of skill, who reported that “the sinking of this pit would have the effect of communicating an additional quantity of water to Sir Archibald Hope's engine from the surface of the earth, and from cutting through the various strata of metals between the surface of the coal.” And upon this report, and also upon the construction of the lease, the Court held that the appellant was not entitled to put down pits within the parks and gardens of Woolmet. An appeal was taken to the House of Lords, but never moved, and in consequence dismissed. When, ten years afterwards, the appellant again raised the question in the present declarator.

Dec. 11, 1792.

Feb. 12,1793.

The Lord Ordinary, of this date, pronounced this interlocutor:—

“Repels the preliminary objection of a res judicata in this case: And upon the merits of this cause, after giving what the Ordinary thinks a fair and rational construction to the original lease in 1723, by the town of Edinburgh to John Biggar, his heirs and assignees, and in particular to the excepting clause in that lease, which gives rise to the present question: Finds, that as by this exception, the tenant was on the one side excluded from working the coal, within the excepted grounds without the consent of the master, so, on the other hand, it neither was nor could be the understanding of parties, that the master was to be left at liberty, during the currency of the lease, without the consent of the tenant, to work those coals either by himself or others, at discretion, which might be attended with very prejudicial or ruinous consequences to Mr. Biggar, or his successors, in the after-working

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of the main coal of the barony of Woolmet, confessedly set to them without any imposition or restrictions, and which appears to have been the ground upon which the Court proceeded when they granted the interdict which has been pled in bar of the declarator; and, therefore, on these grounds, assoilzies the defender.”

On reclaimining petition, the Court adhered.

Against these interlocutors the present appeal was brought.

Pleaded for the Appellant.— As the lease contains a clause of “All and haill the coal that is within the lands and barony of Woolmet and Hill, excepting always the coal lying within the parks, garden, and inclosures of the barony of Woolmet, unless the consent of the said Earl of Wemyss be first had and obtained thereto,” this amounts to an absolute and unqualified reservation of the coal in question, and the appellant, as proprietor thereof, was entitled to work the same. And it is no answer to this to say, that the purpose for which this reservation was inserted was quite different from giving the landlord a right to work the coal, because the reservation, as explicitly expressed, is general and sufficient not only to comprehend this purpose, but all other lawful purposes. The respondent admits that he has no title to work the reserved coal himself. It is equally clear that such a reservation, in a lease, must always have in view a right to work on the part of the landlord, especially where there is nothing mentioned expressly to exclude this; And what the respondent aims at is to obtain a monopoly of his coal to the exclusion of the landlord's right.

Pleaded for the Respondent.— The original purpose of reserving the coal was to give the proprietor a surety that his parks and inclosures of Woolmet would not be damaged from working; but it is quite clear from the meaning of the lease, that the whole coal of Woolmet was given in lease to the respondent, except the right of working that part of it under the parks and gardens of Woolmet, without the proprietor's consent. This last clause, “unless with the proprietor's consent,” showed that the whole coal was let, and it would, in these circumstances, be extraordinary, and not consistent with the true bona fides of the transaction, to see both the proprietor and lessee working the same coal; or after a lease to a tenant, for the landlord to work the coal as here intended, to the great injury and probable destruction of the tenant's right. Such was never the intention by the original lease, nor by the renewal of it to the respondent.

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