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(1822) 1 Shaw 225
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
2 d Division.
No. 42.
Subject_Superior and Vassal — Clause. —
Held, (affirming the judgment of the Court of Session,) that a clause by which a superior reserved in a feu-contract right to the mines and minerals, did not give him right to a quarry of freestone situated within the lands.
In the year 1699, King William III., by a charter under the Great Seal, granted to John Marquis of Atholl, (proprietor of extensive estates in Perthshire,) and his son in fee, “omnes et singulas auri fodinas, argentarium metallum, seu fodinas argenti, molybdinam, seu fodinas plumbi, fodinas stanni, fodinas cupri, et alia mineralia, colores et metalla quæcunque, de quibuscunque naturâ, generibus, vel qualitate eadem sunt, hactenus inventa, vel quæ ullo tempore in posterum infra totas bondas dict. terrarum et comitatûs de Atholl comprehenden. ut in infeofamentis earundem, jacen. infra vicecomitatum de Perth, et infra bondas omnium aliarum terrarum, dominiorum, baroniarum, aliorumque, sub quâcunque designatione eadem sunt, ad eos pertinen. et spectan., tam in superioritate quam in proprietate, ubicunque eadem jacent. infra dictum regnum invent. erunt, cum omni jure, titulo, et interesse quibuscunque quæ nos vel nostri successores habemus, vel alio modo habere, clamare, vel ad easdem, vel ad aliquam partem seu portionem earundem, ullo modo pretendere poterimus; cum plena potestate prænominato Joanni Marchione de Atholl, et dicto suo filio, ejusque antedictis, lucrare, operare, scrutare, et adinvenire praedict. fodinas, mineralia, colores, et metalla infra aliquam seu quamlibet partem terrarum generaliter et particulariter
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Thereafter, in 1707, the Marquis—now Duke of Atholl—feued the lands of Bolfracks (forming part of the estate of Atholl) to Alexander Menzies by a feu-contract in which there was this reservation:
“Reserving always to the said John Duke of Atholl the haill mines and minerals that may be found within the bounds of the said lands of Bolfracks, of whatsoever nature or quality, with the liberty of digging, winning, and away leading the same; but with this provision, that the said John Duke of Atholl and his foresaids be obliged to satisfy the feuars and possessors of the said lands for the time for what damage shall happen through breaking of the ground, and making ways through the lands in searching for, winning, and away leading the said mines and minerals.”
In these lands there was a quarry of freestone which had been discovered in 1723, and which, it was alleged, was of a singular and uncommon nature, being admirably suited for ornamental architecture, and highly valuable from the circumstance, that this quality is not possessed by any other stone in that district of the country.
The right to the superiority, and to the above reservation, was subsequently acquired by the appellant Mr. Menzies, and the lands were purchased by the respondent, the Earl of Breadalbane. The Earl having commenced to build a mansion-house at Taymouth, and having claimed the exclusive right to this quarry, from which
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In defence against this action the Earl maintained, That the clause of reservation by the superior was merely intended to include those mines and minerals that had been conveyed by the charter of 1699, which was confined to metals, and had no reference to stones, or any similar substances: that the term “mineral” did not embrace stones, and such a construction would have the absurd effect of entitling the superior to every stone on the property.
By Mr. Menzies it was answered, That the object of the charter was merely to convey the mines and metals which belonged to the Sovereign jure coronæ; and as the Marquis of Atholl was (independently of that charter) proprietor of all the other minerals within the lands, he had full power to reserve to himself the stones, &c. within them:—that the words in the reservation comprehended every substance of the nature of the stone in question, although only used for the purpose of building; and that he did not pretend that he had right to every stone within the lands, but only to those of a valuable nature.
The Lord Ordinary found, “That the reservation contained in the original feu-charter of the lands of Bolfracks in 1707 to Alexander Menzies, “of the haill mines and minerals that may be found within the bounds of the said lands of Bolfracks, of whatsoever nature and quality, with the liberty of digging, winning, and away leading the same,” being expressed in the broad and comprehensive terms above recited, without any exception under which the quarry in question might have been understood to have been included, and with the single provision that the superior should satisfy the feuar or possessors for the surface damages occasioned in searching for, winning, or leading away the mines and minerals, must be held to have comprehended the quarry or mine in question, with the stone thereof, and the liberty of digging, winning, and away leading the same, on paying surface damages; and on these grounds decerned in terms of the declaratory conclusions of the libel, and appointed the pursuer to state in a condescendence the amount of the damages claimed by him.”
Against this interlocutor the Earl of Breadalbane having reclaimed, the Court altered, sustained the defences, and
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Mr. Menzies having appealed, the House of Lords “ordered and adjudged, that the interlocutors complained of be affirmed.”
Solicitors: Spottiswoode and Robertson,— J. Chalmer,—Solicitors.
( Ap. Ca. No. 31.)
_________________ Footnote _________________
* See Fac. Coll. 10th June 1818, No. 169, where it is said, that “upon advising a reclaiming petition for the defender, with answers, three of the Judges were of opinion that the stone in question was not such a substance as fell within the reservation; the remaining Judge was of opinion that the terms of the reservation were so broad as to comprehend it. Upon advising a reclaiming petition for the pursuer, with answers, four of the Judges thought the interlocutor of the Court right; the remaining Judge still doubted of it.”