United Kingdom House of Lords Decisions

I think the matter is perfectly clear, and I move your Lordships that the interlocutor of the Court of Session be affirmed.

Lord Hatherley—My Lords, I am entirely of the same opinion.

In the case of The Duke of Hamilton v. Graham it was clearly pointed out what the exact right of a proprietor was in respect of a property excepted from a demise, and as to which therefore all the original rights of the demising proprietor remained, together with all the incidents to that property necessary to its working and enjoyment, that which the owner has reserved to himself being as much his as other parts of his land of which he had made no demise whatever. In the Duke of Hamilton's case it did not appear from the evidence that he was exceeding that right; it did not appear that he was using for any purpose whatsoever anything but that portion of the mineral property which he had actually reserved, and over which he had entire and complete dominium, and therefore it was held that he was not transgressing his own grant or departing in any way from it. But as respects the power of working, whether incidental to the reservation of the property, or expressly specified in the instrument, no right of property is attached to that; it is simply a right of availing yourself of that property which you have reserved to yourself in the lands in question.

Now, the right which has been reserved in the lands in question in this case is only a right to the coals under the lands which have been parted with and demised, that is to say, a right to the portion of the coal situated under the surface demised to the pursuer (the respondent), and although the right to that coal would exist fully if that alone was being dealt with, with regard to this mode of access to the minerals which he has reserved to himself nothing can be done beyond the purpose for which that right was reserved, namely beyond the purpose of working the coal under Mr Blair's lands, and no other coal. That really seems to me, my Lords, the simple principle upon which the Court has proceeded, and as to the question of interpretation I do not see how he can give to the words “coal and coal heughs” (whatever coal heughs may mean) any interpretation going such a length that it would amount to a reservation of all the wastes between the different seams of coal in the lands.

As regards the intervening piece of land demised by the grant of 1827, the reservation is more extensive. The reservation there is of “The whole coal, stone quarries and all other metals and minerals within the lands demised, with power to search for, work, and carry away the same.” If those who, advising Mr Ramsay with regard to the granting of his leases had happily thought of drawing the other two leases (contracts of excambion) in the same form, it is possible that he might have found himself in a more favourable position, but as things stand I have no hesitation in coming to the conclusion that the pursuer is right and that the appeal ought to be dismissed.

Lord Selborne—My Lords, the question seems to me to be a very simple one, both in fact and in law.

The engineer Mr Simpson finds in the Report, which is the only evidence as to the facts that the level cross cut which he speaks of by the word “mine” runs under the pursuer's lands, partly in the cherry coal waste and splint coal waste, and partly in other strata, and that the strata through which the mine passes, other than the coal, consists chiefly of shale and sandstone. The interlocutors under appeal have recognised the right of the appellant to carry through the coal and the coal wastes whatever he is able to carry through them without any interference on the part of the pursuer, but have denied him that right as to the other strata, stated here to consist chiefly of shale and sandstone. The only possible question that I can see is, whether by the grants of the two feus of 1825 and 1851 those other strata of shale and sandstone passed in fee to the feuar, who was the pursuer in the action, or were reserved and excepted in favour of the appellant?

Looking at the terms of the grants, I can see no ground whatever for raising so much as a doubt that those other strata of shale and sandstone passed to the feuar, and were not reserved or excepted in favour of the appellant. In the first grant the only thing excepted is whatever is properly described by the words “coals and coal heughs.” The expression “coal heughs” is interpreted to mean coal pits. As there were no open coal pits at that time under this land, I take that as equivalent to coal mines; but coals and coal mines mean, I apprehend, when unopened mines are spoken of, nothing more nor less than the veins or seams of coal underlying the surface. Whatever he can do within the limits of those veins or seams, whether before or after their exhaustion by working, is still permitted to him by these interlocutors, and the question arises solely as to the other strata, which are neither coals nor coal mines. With respect to the third grant, there is even less apparently upon which the argument can be founded than in the first, because the words “coal heughs” are not there, but only “the coal.”

My Lords, I must take the liberty of saying that I think Lord Ormidale was not so far wrong in the language which he used at pages 54 and 55. No doubt the right to work coal which is reserved under land otherwise granted is a right connected with property in the person who makes the reservation in his own favour, and not like an easement; still, so far as it is a right to be exercised, not within the solum which is reserved, but over and through the solum which is granted. I cannot but think that Lord Ormidale was justified in describing it by the words “privilege, servitude, or easement.”