United Kingdom House of Lords Decisions

But, my Lords, I quite admit that these words being capable of being understood apart from the subject and apart from the previous title and the words of reservation, as not granting property but granting a right to deal with property, if even in the case of a clause of reservation with such a previous title there had been a series of authorities determining that something more was necessary and that without more they would operate as a license only, I might have hesitated to overrule such authorities. But when I find that the authorities are all the other way, concurring with what strikes me as the common sense of the case and with the unanimous decision of all the Judges in the particular case, I cannot be persuaded to doubt that they ought to be followed. [See Livingston, 5 Brown's Sup.]

Now, those cases which are reported in the supplement to Morison, of the years 1776 and 1778, although shortly reported, were plainly cases upon similar words in a contract of the same nature under similar circumstances; and if the words which shortly describe the decision of the Judges are to be interpreted in their legal and natural sense, the decision was that such words under such circumstances reserve the antecedent property in the coal, and do not merely give a license as from the grantee of the coal to take a part of what would otherwise be his.

The same views prevailed in the case of Davidson v. The Duke of Hamilton, May 15, 1832, 1 Sh. 411 (N.E.) 385; and whether that decision was right or wrong as to the use of surface privileges, which is quite a distinct matter, it cannot possibly have been right except upon the supposition of these words reserving the original property of the grantor in the coal.

In the case of Bain v. The Duke of Hamilton, 3 Macph. 821, which arose upon the question of reducing words said to have been improperly inserted in the dispositive clause of a charter by progress, I think that in determining that question it was proper, if not absolutely necessary, to consider whether those words signified the property in the coal or only signified a licence or privilege to take coal belonging to somebody else. All the Judges except the Lord President appear to have thought that it was necessary, or at all events proper, to express an opinion upon that question, and they all did express an opinion agreeing with what was decided in Livingston's case, agreeing in the opinion expressed in Davidson's case, and agreeing with what seems to me to be the reason and common sense of the matter, namely, that those words used in such an instrument and under such circumstances as words of reservation did reserve the antecedent property in the minerals of the grantor.

My Lords, those cases have been followed by the learned Judges in the present instance, and for my part I think it quite impossible that your Lordships should reverse their decision. 1 therefore move your Lordships to affirm the interlocutors appealed from and to dismiss the appeal with costs.

Lord Blackburn—My Lords, I perfectly agree. I think that besides the common sense of the thing, a licence or a privilege to work and win the whole of the coals is very much in substance the same thing as a right of property in the coals. There is a technical reason in Scotland, that where the person reserving is himself infeft of the whole property, in the coals and all, and reserves that right by these Words, he reserves the property in the coal—in that case he is infeft of that right at the time, and continues infeft and has the title; in the other case he would not be infeft—(I do not pretend to use the correct Scotch words)—he would have at best a difficulty in making out his interest afterwards.

Taking that to be so, as the common sense of the thing, we find also that there are several decisions pointing one way. It is said that it was not necessary for the decision in all of them that this question should be considered, but a good many of the cases point to this, that where there is a reservation of the right to win coals and minerals by the person already infeft, that reservation of the right to win coals and minerals is, at least prima facie, the same thing as if it were a reservation of the whole property in the coals and minerals.

Then comes the question—Is there enough to shew that, although the reservation must be taken prima facie, though certainly not necessarily to have that meaning, it has been cut down in this instrument to mean less? I must say that the rather singular terms which the conveyancer has used do not seem to me to have that effect. Therefore, I quite agree with the opinion which has been expressed by the Lord Chancellor that the interlocutors must be affirmed.

Lord Watson—My Lords, I am quite of the same opinion. It appears to me to be established by authority in the law of Scotland that where the owner of lands is disposing to a singular successor or other person, if he reserves the liberty of working the coal in these lands, he must be taken to have reserved the estate of coal with which he stands vested by infeftment. Now, my Lords, it appears to me that that is a very reasonable construction to put upon the words in the case of a right constituted by reservation. How far these words would be effectual to constitute a right over lands it is not necessary for your Lordships to consider—But the words may be insufficient

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