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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jamieson (Belhaven's Trustee) v. Harvie [1876] ScotLR 14_198 (22 November 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0198.html Cite as: [1876] ScotLR 14_198, [1876] SLR 14_198 |
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Page: 198↓
By charter of novodamus, in 1708, the superior reserved the coal in certain lands, and in all the titles following upon that charter the coal was in like manner reserved. The coal was not worked till 1875, when the vassal attempted to do so, and the superior brought a note of suspension and interdict against him.— Held (aff. judgment of Court of Session) that the vassal could not plead in defence titles prior to 1708, as he was not able to connect himself with these titles.
This was an appeal in a note of suspension for William Harvie, Esq., of Brownlee, Lanarkshire, against George Auldjo Jamieson, C.A., Edinburgh (sole trust disponee of Lord Belhaven), and Archibald Russell, coalmaster in Glasgow. The note of suspension prayed the Court to interdict the respondents “from working, excavating, bringing to the surface and taking away, or in any way disposing of or interfering with the coal or coal-seams within the lands described in the titles of the said Lord Belhaven as the three-score and five acres of the five-pound land of Brownlee, lying on the south-west side thereof, and upon the east and north-east side of Garion-Gillburn, and next adjacent to the deceased Robert Hamilton's lands of Garion.”
The suspender was superior of the sixty-five acres in question, of which the deceased Lord Belhaven was proprietor, and the ground of suspension was that the coal in the lands were reserved to the superior. Lord Belhaven's predecessors, the Hamiltons of Wishaw, had been proprietors of the sixty-five acres since 1708, in which year they acquired them by charter of novodamus from Daniel Carmichael of Mauldslie, therein described as “immediate lawful superior of the lands,” by which he disponed—‘All and Haill the said three score and five acres of the said five-pund Land of Brownlie, lying on the south-west side thereof, and upon the east and north-east side of Garine Gillburn, and next adjacent to the said William his lands of Gairen; together also with the said lands of Coblehaugh and Peelhouse, and all oyer pairts, pendicles, and pertinents of ye said five-pund land of Brownlie, lying on the west side of Gairen Gillburn; together also with the woods, fishings, and haill pertinents of the said lands hereby disponed: excepting and reserving to me, the said Mr Daniel Carmichael, and my heirs furth and from this present charter, the whole coals, coall-heughs of the said sixty-five acres of land above written, hereby disponed, with liberty and privilege to me and my foresaids to set down shanks, put in heads, make levels, and roads for coal-heughs in any part of the said sixty-five acres of land,—the said William Hamilton and his airs and successors being always satisfied for what damnage shall be sustained thereby in ye corns and grass of the said lands, all lying within the barony of Mauldslie and Brownlie, parochin of Carlouck and sheriffdom of Lanark.”
The charter of novodamus further set forth that Hamilton of Wishaw had, by a disposition and procuratory of resignation ad remanentiam, disponed to Mr Daniel Carmichael, his immediate lawful superior of the lands and others mentioned in the deed, “all and haill the five-pound land of Brownlee, of old extent, with its parts and pertinents, reserving to him, the said William Hamilton, furth of the said disposition, the number of three score and five acres of the same lands, lying upon the south-west side thereof, and upon the east and north-east side of Garion-gill Burn; and also reserving to the said William Hamilton and his foresaids the lands of Coblehaugh and Peilhouse,” and certain other pertinents. The disposition and procuratory of resignation was not at the date of this case extant, but the respondents founded upon the narrative in the charter of novodamus as showing that the sixty-five acres in question were not included in the resignation.
Of the same date with the said charter of novodamus, David Carmichael granted in favour of the said William Hamilton a charter of apprising and novodamus, whereby he disponed “to his well-beloved William Hamilton of Wishaw, his heirs and assignees whomsoever, All and haill the £5 land of Brownlee of old extent, together with all and sundry manor-places, houses, biggings, yards, orchards, woods, fishings, coals, coal-heughs, mosses, muirs, meadows, and haill other parts, pendicles, and pertinents of the same, lying and bounded in manner mentioned in and conform to the original rights and infeftments of the said lands; excepting always the feu-farm rights granted to Gavin and John Davidsons, portioners of Brownlee, and their authors, of a proportion of the said lands, and his right to the coals of the said parts, all lying within the barony of Mauldslie by annexation, parish of Carluke and sheriffdom of Lanark. Which lands and others above written, with their pertinents, were by said charter declared to have pertained heritably of before to the deceased Claud Hamilton of Garion, held by him, his predecessors and authors, immediately of him the said Daniel Carmichael, his predecessors and authors, and were duly and lawfully apprised, conform to the several decreets of apprising and decreet of adjudication (to all of which the said William Hamilton had acquired right), therein mentioned, obtained at the instance of Robert Whitehead of Parck, and others against the said deceased Claud Hamilton of Garion, as lawfully charged to enter heir in special to the deceased Claud Hamilton of Garion, his father, in the lands and others above specified.”
In defence, Jamieson pleaded that he was entitled to go back beyond 1708, and found upon the titles in favour of the Hamiltons of Garion, who were the predecessors of the Hamiltons of Wishaw. Down to the year 1622 the whole five- pound land of Brownlee belonged both in property and superiority to Livingstone of Jervis-woode, who in that year feued out the whole of the land as follows:—
Page: 199↓
1. He granted a feu-charter on September 14, 1622, in favour of Robert Hamilton, portioner in Brownlee, of the dominium utile of the said lands to the extent of— (1) £2, 18s. 4d. of the £5 land of Brownlee,
£2 18 4
(2) 12s. 6d. of the said £5 land,
0 12 6
2. He, on September 14, 1622, also granted a feu-charter in favour of John Davidson senior, portioner of Brownlee, of the 14s. 7d. lands of old extent in Brownlee (now known by the name of Townhead),…
0 14 7
3. Of the same date he granted another feu-charter in favour of John Davidson, in Brownlee, of another 14s. 7d. lands (now known as Townfoot),.
0 14 7
£5 0 0
After 1622 the transmission of the lands could not be clearly traced, but before the end of the seventeenth century the greater portion of the lands of Brownlee, including the sixty-five acres in question, had passed into the hands of the Hamiltons of Garion. Hamilton of Garion fell into debt, and his whole rights were apprised by various creditors. The right to the apprisings came to centre in the person of Hamilton of Wishaw, Lord Belhaven's ancestor, in whose favour the deeds in 1708, already narrated, were granted. The coal in the said sixty-five acres was not worked until 1875, when Jamieson commenced to do so.
The ground upon which the appellant claimed right to the coal in the sixty-five acres was that the charter of novodamus in 1708 was a mere charter by progress, and should be regarded not as a new grant of the sixty-five acres, but as a simple renewal of a previously existing right, including coal which belonged to William Hamilton of Wishaw.
The First Division, on 17th March 1876, found that Jamieson had no right or title to the coals lying below the said sixty-five acres, and accordingly granted the interdict craved.
Jamieson appealed.
At delivering judgment—
My Lords, the appellant in the present case represents for all purposes the Belhaven property, and he has been interdicted by an interlocutor of the Court of Session from exercising a certain mining right which he claimed, namely, the right of getting coal under sixty-five acres of land in the neighbourhood of Wishaw, in the county of Lanark. The person who has obtained the interdict is the superior of the lands in question, and undoubtedly the superior of these lands has the right to prevent the working of any coal under them unless he has parted with the coal under the lands as part of the dominium utile which the vassal has received. Your Lordships have therefore, on the one hand the vassal, Lord Belhaven, claiming to have as part of the dominium utile of the land a right to the coal; and you have, on the other hand, the superior asserting that that right is still possessed by him.
Now, your Lordships have at the outset this most remarkable fact, that for a period now of one hundred and seventy years, during which the coal has not been worked by any person, the titles to the property have been in progress—titles have been passing between the superior on the one side and the vassal upon the other— and throughout the whole progress of those titles, from the year 1708 down to the present time, there has invariably upon every occasion when the title was made the subject of conveyancing been a clear and distinct recognition of the right to the coals as existing in the superior, and not as belonging to the vassal. My Lords, to that statement there is no exception whatever, and therefore although, I repeat, the coal has not been actually worked by any person, you have the vassal holding the land—you have the superior holding the superiority—for a period of 170 years with titles which assert that the coal belongs to the superior and does not belong to the vassal.
My Lords, it is a well-established principle of Scotch law, recognised in the cases to which reference has been made by the learned counsel at the bar, that if in a progress of titles you have got on the part, we will say, of the superior, a claim to a certain reservation or to a certain right, still if the vassal, when that reservation or right comes into controversy, can shew that at the commencement of the title there clearly was no such right given or reserved by the superior, but that the title of the vassal was independent of any reservation or right of the kind, the vassal may, as it were, correct the progress of the titles by the inception of the title, and he may stand upon that which was the original title and put aside or brush away those claims of title which from time to time have been made by the lord, and which the vassal is thus entitled to get rid of. But, my Lords, of course that doctrine of law depends of necessity upon this, that the vassal is able to shew at the inception of the title a certain state of things clearly and distinctly existing—a right on his part clearly and distinctly conferred upon him—which state of things and which right have been disregarded by the progress of titles which have claimed a right of a different kind. The question in the present case, therefore, is this—There having been for 170 years a recognition of the right in the superior to the coal, does the vassal come and shew to your Lordships at the commencement of that period of 170 years, or anterior to that period, a title and right in himself to the coal which has become disregarded in the progress of the title My Lords, the circumstances of the title anterior to the year 1708 are these—I put aside altogether what at first appeared to me of some
Page: 200↓
My Lords, with regard to Hamilton of Garion, he is no party to the instrument with which this instrument of sasine is connected, and all that can be said of the reservation with regard to him is, that it is, as it were, a protection in his favour against the author of the grant connected with this instrument of sasine, in order that he may not be supposed to have granted by that instrument anything which belonged to Hamilton of Garion. How does the appellant in any way connect himself with Hamilton of Garion? It appears that in the year 1708 the person who then claimed as Hamilton of Garion had got into difficulties; he became the subject of proceedings by way of apprising, and the land which belonged to him was sold by formal proceedings under the Court, and under those proceedings one William Hamilton of Wishaw, who clearly is now represented by the appellant, became the purchaser of the interest of Hamilton of Garion.
The charter of apprising by which Carmichael, the then superior, confirmed the apprising in favour of Hamilton of Wishaw is dated the 12th February 1708. My Lords, it would not, as it seems to me, be proper to look, at that charter alone. There were executed on one and the same day several instruments, and among the rest the charter to which I have referred, the charter of apprising, and a charter of novodamus. My Lords, it appears to me that according to the ordinary rule of law, where you have between the same parties several instruments executed upon the same day as part of one and the same transaction, the whole of those instruments must be looked at together, and you must, if possible, put a construction which will reconcile the different parts of those instruments. My Lords, with regard to the charter of apprising, I will say no more than that it professes on the part of Carmichael, the superior, to give, grant, and dispone to Hamilton of Wishaw, “All and haill the five-pound land of Brownlee, of old extent, together with all and sundry manor places, houses, biggings, yards, orchards, woods, fishings, coals, coal-heughs,” &c., “excepting always the feu-farm rights granted to Gavin and John Davidsons, portioners of Brownlee, and their authors, of a proportion of the said lands, and my right to the coals of the said parts.”
My Lords, a question may arise upon that, whether the exception of “my right to the coals of the said parts,” means an exception by the superior of his right to coals over the whole of the Brownlee lands, or only an exception of his right to coals under that part which had been given to the Davidsons. If it means an exception of his right to the whole, it is the more unfavourable to the appellant; but I prefer not to adopt that construction of the deed, as it may be a matter of some doubt, but to read it as though it referred only to a smaller portion of the lands—the portion of the Davidsons'. Then, my Lords, that being the charter of apprising, what your Lordships find in the charter of novodamus is this—and I will ask your Lordships' particular attention to the introductory words—“To all and sundry whom it effeirs, to whose knowledge these presents shall come, greeting, me, Mr Daniel Carmichael of Mauldslie, immediate lawful superior of the lands and others underwritten, reserved by William Hamilton of Wishaw in manner after mentioned.”
The charter appears there to take a distinction between the lands which were reserved by Hamilton of Wishaw, as after mentioned, and lands not reserved, as if the position of superior and vassal was to continue as to those lands which were reserved, but as to the others not reserved, but surrendered ad remanentiam, of course he would become the superior without there being any exception whatever in connection with them. Then it runs—“For as much as the said William Hamilton of Wishaw has disponed to me the five-pound land of Brownlee of old extent,” &c., reserving to him, William Hamilton, out of the said disposition the number of three score and five acres of the lands of Brownlee, and also reserving to William Hamilton and his foresaids the lands of Coblehaugh and Peilhouse,” &c. Then it proceeds—“And now, therefore, wit ye me upon certain good causes and considerations to have of new given, granted, disponed, and by this present charter perpetually confirmed;” then comes a grant by way of novodamus of the five-pound lands of Brownlee and Coblehaugh and Peilhouse—the very same lands which in the recital appear to be said to be reserved out of the resignation. And then there is further a reservation—“Excepting and reserving to me, Carmichael, and my heirs furth and from this present charter, the whole coals, coal-heughs of the said sixty-five acres of land underwritten, hereby disponed, with liberty and privilege to me and my foresaids to set down shanks, put in heads,” and so on, making compensation to the Hamiltons for any damage. And then comes a feu-rent different from the former feu-rent of the land.
Page: 201↓
My Lords, there is no doubt that it is extremely difficult to put a sensible interpretation upon every part of this deed. That there is an error, or, as the Lord President says, a “bungle,” in the deed is perfectly apparent; but taking this together with the charter of apprising, I own that it appears very strongly to me to have been the intention of the parties to draw a distinction between those parts of the property which were surrendered by Hamilton of Wishaw never to be granted back, and those which were surrendered for the purpose of being the subject of a new grant. There appears obviously, as the Lord President thought, to have been some transaction on this occasion between the superior and the vassal leading to a change in the feu-duty, and leading to the superior getting back some part of the property which was not to be re-granted; and I think your Lordships may give an intelligible explanation to the whole if you consider that the recital here is a recital which in substance states that whatever was surrendered ad remanentiam, there had been excepted out of that surrender these particular portions of the lands—the lands of Brownlee, of Coblehaugh, and Peilhouse, because they were reserved to be the subject of a re-grant. Then everything else would remain in the superior, and there would be a re-grant of these lands, but a re-grant of them in the way in which this charter re-grants them. Then when you find that the charter regrants them, with the exception of the right to coal under the land, and when you find that for 170 years from that time there is a consecutive series of deeds repeating that exception and asserting that right to coal on the part of the superior, and when you find that anterior to this there is no title that can be produced which asserts clearly and distinctly or carries the right to coal in or to the vassal, it appears to me, my Lords, that it would be a conclusion altogether too violent to arrive at to say that the vassal can now come forward and maintain that merely because there is a want of clearness and distinctness in the mode of conveyance which was adopted in the year 1708 you are to assume or to presume that the right to coal was in the vassal and not in the superior.
My Lords, speaking for myself, I am quite satisfied with the decision which, I repeat, was unanimously arrived at by the learned Judges of the Court of Scotland, and I therefore humbly recommend your Lordships to dismiss the present appeal and to affirm the interlocutor, with costs.
I think it is quite unnecessary, my Lords, to go further into the matter. I entirely agree with what has fallen from my noble and learned friend the Lord Chancellor, and I would advise your Lordships that this appeal should be rejected.
Page: 202↓
It was ingeniously argued by Mr Kinnear that, inasmuch as coals belong prima facie to the owner of the dominium utile, the charter of apprising was an admission by the respondent's predecessor that Hamilton of Wishaw had at that time the dominium utile, and therefore prima facie had the coal. But it seems to me that the deed of apprising was purposely drawn with reference to what I cannot doubt was the fact. It was purposely drawn so as to make no admission or statement that the coals belonged to the superior. I have no doubt that the fact was that during the more than 80 years which had elapsed between 1622 and 1708 matters had got into a state of great confusion and that the superior claimed the coals, and that the charter of apprising was drawn in the way in which it was, not solely owing to some want of skill on the part of the conveyancer, but with a view to make a compromise and settle the matter. It seems to me, therefore, that there is no ground for saying that there can be shown to be a mistake in the title which has been acted upon in charters from 1708 downwards.
Therefore, my Lords, I quite agree that the judgment of the Court below should be affirmed.
Judgment affirmed, and appeal dismissed.