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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Whites v. William Dixon (Ltd) and Others [1881] ScotLR 19_266 (22 December 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0266.html Cite as: [1881] ScotLR 19_266, [1881] SLR 19_266 |
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Held, on a construction of the titles of the owner of the surface of certain property, and of the owner of the underlying minerals, both of whom had derived right from a common author, that the surface owner had not surrendered his right to require the owner of the minerals in working the same to leave sufficient support for buildings erected upon the lands.
Opinions reserved as to the rights of parties if the weight of buildings is excessive.
This was an action at the instance of John and James White, proprietors and occupants of chemical works at Shawfield, near Rutherglen, against William Dixon (Limited), the mineral tenants, concluding, inter alia, that it should be found and declared that the defenders are not entitled to work the minerals adjacent to and under the pursuers' lands of Shawfield Brae, Clydebank, Southcroft, and Hayfield, “in such manner as to break the surface of or injure the springs in the said lands of Shawfield Brae and Clydebank, or to cause disturbance or subsidence of the surface of any part of the pursuers' several lands foresaid, or to bring down or injure the buildings and machinery and erections upon any part of the said lands.”
The pursuers' titles, so far as the minerals in question are concerned, stood as follows:—By feu-contract, dated 14th February 1799, Mr Robert Houston Rae (who was at the time proprietor both of the lands and of the minerals therein) feued the lands of Shawfield Brae, including Clydebank, extending to about 6
acres, to Mr John Goudie, from whom the pursuers' authors acquired right, “reserving to him (the said Robert Houston Rae) and his foresaids the whole coal and other metals and minerals in the said lands, with full power and liberty to him and them, by themselves, their tacksmen or servants, to work and win the said coal, metals, and minerals so as not to break the surface of the said lands or injure the springs therein, upon paying to the said John Goudie yst. and his foresaids any damage that may be occasioned to the said lands by working of the said metals and minerals, as the same shall be ascertained by two neutral persons to be mutually chosen by the parties.” 1 2 By disposition dated 9th and 14th January 1801, in terms of articles and minutes of roup dated 30th July 1800, the said Robert Houston Rae and Archibald Grahame, his trustee, sold and disponed part of the lands of Southcroft of Shawfield, which includes Hayfield, consisting of 25 acres, to James Hill, Professor Young, and Robert Graham, the predecessors of the pursuers. This deed contained a clause of reservation in the following terms:—“Reserving also to us and our successors, tacksmen, or feuars, the whole coal and ironstone in the foresaid lands and estate, with power and liberty to us and our successors, feuars, or tacksmen, or others deriving right from us, to work and take away the same, and to drive levels and drains, and do all other things necessary for the purpose of working and draining the said coal and ironstone, the persons carrying on these operations being also liable to the said James Hill, Mr John Young, and Robert Grahame, or their foresaids, for the whole damage thereby occasioned, as the same shall be ascertained by two neutral men mutually chosen; declaring always that the said James Hill, Mr John Young, and Robert Grahame, or their foresaids, shall have no claim against me, the said Archibald Grahame, or my successors in office, or my heirs and successors, for the damages occasioned by working the said coal and ironstone, or making the said pits, hills, and roads, or any other operations whatever. And further, we and our foresaids, or our tacksmen and feuars, or others deriving right from us, shall have no right to break or enter upon the surface, or to erect any houses, or make pits, or hills, or to make any other roads than that before reserved, in the lands hereby disponed, all as particularly mentioned in a disposition of the said coal and ironstone granted by, in favour of Andrew Houston of Jordanhill, and me, the said Robert Houston Rae, bearing date the, which was laid on the table at the foresaid roups, and was referred to in the said article of roups, and which is hereby referred and held as repeated; declaring that the rules and regulations and provisions contained in the said feu-right shall be the rule of proceeding and settlement between the said James Hill, Mr John Young, and Robert Grahame, and their foresaids, and the feuars of the said coal and ironstone, anything to the contrary above written notwithstanding.”
The defender's title was contained in a feu-disposition, dated 26th and 28th July 1800, by which the said Robert Houston Rae, with consent of the said Archibald Grahame, his trustee, sold and disponed to himself and the said Andrew Houston, equally between them as partners, the predecessors of the defenders, the whole coal and ironstone in the whole lands of Little Govan, and in the lands of Polmadie, Shawfield, Rutherglenmuir, Benathill, and Blackfaulds, “with full power and liberty to the said Andrew Houston and Robert Houston Rae, as partners foresaid, and their foresaids, to work and win the foresaid coal and ironstone for their own benefit and advantage; and for that purpose, with full power and liberty to them to set down coal-pits, make coal-hills and mouths, drive levels, drains, erect dwelling-houses, engines, and all machinery necessary for the purpose of working or drawing the foresaid coal and ironstone: But it is hereby expressly declared that they shall not have liberty to set down any coal-pits, make any coal-hills or mouths, or erect any machinery, make any drains, levels, or break the surface of the land belonging to the said Robert Houston Rae, lying on the north side of a line delineated on a plan of the lands of Little Govan signed as relative hereto, …. with full power and liberty, however, to my said disponees to work and win the coal and ironstone of the said lands lying to the north of the said line, provided the same be done from
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pits on the south side of the line, without breaking the surface of the land lying on the north side of the said line.” There was also reserved a power to make any roads to the south of the said line which should be necessary for the coal work, as also to make certain specified roads to the north of the said line, and to work and win freestone for the purpose of the works and buildings of the coal work allenarly, in any part of the lands and others specified in a tack granted by the said Robert Houston Rae to himself and his said disponees for seventy-four years from Martinmas 1880.
The damage clause was in these terms—“But for the whole damage and injury occasioned by the foresaid operations, and roads and quarries to the foresaid lands, the said Robert Houston Rae, and his heirs and successors, shall be completely paid and indemnified by his said disponees.”
Further, it was declared that the disposition was granted under burden of the feu-right of 6
acres of Shawfield Brae, granted to John Goudie youngest, merchant in Glasgow. 1 2 The pursuers pleaded—“(1) At common law, and upon a sound construction of the titles of parties, the defenders are not entitled to work the coal and other metals and minerals adjacent to and under the pursuer's lands without leaving adequate support, adjacent and subjacent, for the surface of the ground, including buildings and machinery thereon, erected by and belonging to the pursuers.”
The defenders admitted that they had already worked out a small portion of the minerals under the pursuers' property, and that they intended to work the minerals subjacent to the pursuers' works.
They pleaded—“(2) The defenders' right to the minerals subjacent to the pursuer's lands being subject to no limitation at common law, or under the titles entitling the pursuers to the decrees concluded for, absolvitor should be pronounced.”
The
“ Opinion…. The defenders had begun to work the minerals under the pursuers' lands, and as pursuers fear that their works may be injured they have raised this action. Both parties desired me to dispose, ante omnia, of the declaratory conclusions of the libel in order that their several rights as depending on the titles might be ascertained.
The pursuers claim an absolute right of subjacent support. The defenders do not dispute that this right exists, unless the pursuers have surrendered it, or unless the buildings are beyond what may have been fairly contemplated as the origin of the right. It is, however, in regard to the first question—Whether and how far the pursuers have surrendered their right to the subjacent support?—that the pursuers desire the judgment of the Court.
As the clauses of reservation are different they must be considered separately.
First, The lands of Shawfield Brae and Clydebank.
Power is reserved to work the minerals ‘so as not to break the surface of the said lands, or to injure the springs therein, upon paying any damage that may be occasioned.’ The defenders contend that they have an absolute right to work the minerals whatever may be the consequence to the surface—subject only to the condition that they are not to injure the springs, and to the obligation of paying damages. They construe the words ‘break the surface’ as meaning no more than they are not to execute any works on the surface; as, for instance, that they are not to sink pits or make roads. But they maintain that they are not prohibited from breaking the surface by causing subsidence.
I cannot adopt this view. I take it to be the true meaning of the clause that the mineral owners were not in any way to break the surface. There are two conditions, both of which are, I think, attached to their power of working under ground. The one is that they are not to break the surface, and the other that they are not to injure the springs. The latter condition is plainly attached to the underground workings, and in my opinion the former must be similarly construed. They are together intended to protect the interests of the feuar on the surface and in the underground strata.
But the pursuers seek a declarator that the defenders are not entitled to cause disturbance or subsidence of the lands, or to bring down or injure the buildings thereon. They do not rely on the condition that the mining shall be so conducted as not to break the surface, but on their common law right to subjacent support. I do not think that I can give such a decree.
The conditions on which the defenders are entitled to work the minerals have, I think, been precisely fixed by the feu-contract, and in my opinion the pursuers have no rights except such as flow from these conditions. Any further right which they might have at common law has, I think, been surrendered. It seems to me therefore that they cannot have any declarator which is broader than the terms of the feu-contract, or any greater protection than results from the condition that the defenders shall not break the surface. It is possible to conceive that there may be subsidence or disturbance which will not break the surface. I have, however, thought it to be the best course merely to dismiss the conclusions to which I have been referring.
Second, The lands of Southcroft and Hayfield.
The coal and ironstone is reserved with power to work and take away the same, and to drive levels and drains, and to do all other things necessary for the purpose of working and draining the said coal and ironstone, the feuars carrying on these operations being also liable to the said James Hill, Mr John Young, and Robert Graham, or their foresaids, for the whole damage thereby occasioned.” Here the right to work the minerals is very broadly reserved, with the sole condition that the mineral owners shall be liable in damages. It was urged that this meant merely that they were to be liable for such damage as might incidentally occur, and that could not be foreseen.
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The parties referred to a number of cases, but I do not think it necessary to examine them, as the question came to be, Whether the pursuers had contracted themselves out of their common law rights? and this is a question which is to be determined by the titles alone. Probably the case which most nearly resembles the present is that of Aspden, 10 Ch. App. 394, and it is in favour of the defenders. It seems to recognise the doctrine that where there is a power to work on paying damages the right of support has been relinquished.”
The pursuers reclaimed, and argued—That the surface owner had at common law a right of support which could only be surrendered by direct words in the titles, or by such plain implication that the Court could have no alternative, and that on a fair construction of these titles there had been no such surrender here. That where certain powers had been specified the defenders could not bring in from the damage clause, under interpretation of the words “foresaid operations,” powers which were not specified. That even if the opposite were admitted, the obligation to compensate for damage did not confer a right to do damage.
The defenders argued—That the prohibition against breaking the surface only applied to operations from above. That where, as here, there was no absolute prohibition against entering the surface, combined with a power to work minerals, and an obligation to pay compensation for damage, the principles laid down in Aspden's case must rule.
Pursuers' authorities— Buchanan and Henderson and Dimmack v. Andrew, February 24, 1871, 9 Macph. 554— revd. March 10, 1872, 11 Macph. (H. of L.) 13; Hamilton v. Turner, July 19, 1867, 5 Macph. 1086; Caledonian Railway Company v. Sprot, March 4, 1856, 2 Macq. 449; Harris v. Ryding, 5 M. and W. 60; Humphries v. Brogden, 12 Ad. and E. 739; Smart and Spearman v. Morton, 5 E. and B. 30; Davis v. Trehame, L.R. 6 App. Ca. 460; Hext v. Gill, L.R. 7 Ch. App. 699; Aspden v. Sedden, L.R. 10 Ch. App. 394; Williams v. Bagnall, 15 Weekly Rep. 272; Dunbar's Trustees v. British Fisheries Society, December 19, 1877, 5 R. 350— aff., July 12, 1878, 5 R. (H. of L.) 211.
Defenders' authorities— Rowbotham v. Wilson, 8 H. of L. Ca. 348; Wakefield v. Duke of Buccleuch, L.R. 4 (H. of L.) 377; Eadon and Others v. Jeffcock and Others, L.R. 7 Ex. 379; Neill's Trustees v. Dixon, March 19, 1880, 7 R. 741; Dunlop v. Corbeck, June 20, 1809, F.C.; Smith v. Darby and Others, L.R. 70 B. 716; Bald's Trustees v. Alloa Colliery Company, May 30, 1854, 16 D. 870.
At advising—
Now, in these circumstances the question arises, whether the pursuers are entitled to have as much of the minerals left under their surface estate as will keep up the surface and support without injury the buildings erected upon the surface? That depends upon the titles, because at common law there is no doubt whatever that the pursuers have such a right. The right of the mineral owner in a question with the owner of the surface is to work out the minerals in such a way as to make the greatest profit for himself consistently with a due regard for the property and interests of the owner of the surface. But he is not entitled to work out his minerals in such a way as to destroy or injure the property of the owner of the surface. It is said, however, that the titles here have the effect of depriving the pursuers of that common law right, and the Lord Ordinary has in substance given effect to that contention.
Now, it must be observed in the outset that this is not a case where the owner of both surface and minerals grants a feu of the surface, reserving the minerals to himself. In such a case everything depends upon the terms of the title of the feuar or purchaser of the surface, because it is
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I begin, therefore, with the title of the defender. The date of it is in September 1800, and it conveys, in terms of an antecedent agreement, the minerals in a very large field of about 500 acres. But the owner of the estate sets out that he has found it expedient to bring his lands of Little Govan and others to sale, and therefore it has become important, “in order to promote the sale of my said lands, that the liberty of shanking and building houses, and erecting machinery and making roads, should be further restricted;” and then he proceeds to dispone to his disponee, All and whole the coal and ironstone in the whole lands of Little Govan and in the lands of Polmadie, and so forth, “which belong to me, the said Robert Houston Rae, and which lands are delineated” on a plan; and then follow these words—“With full power and liberty to the said Andrew Houston and Robert Houston Rae, as partners foresaid, and their foresaids, to work and win the foresaid coal and ironstone for their own benefit and advantage.” Now, in the argument a good deal of importance was attached to these words, “with full power and liberty to work and win.” Certainly power to work and win minerals is necessarily inherent in the property of the minerals, and therefore the only meaning of these words in the dispositive clause conveying minerals is that the proprietor may exercise his right of property. It really in the ordinary case means nothing more. But the disposition proceeds—“And for that purpose, with full power and liberty to them to set down coal pits and mouths, drive levels, drains, erect dwelling-houses, engines, and all machinery necessary for the purpose of working or drawing the foresaid coal and ironstone: But it is hereby expressly declared that they shall not have liberty to set down any coal pits, make any coal hills or mouths, or erect any machinery, make any drains, levels, or break the surface of the land belonging to the said Robert Houston Rae, lying on the north side of a line delineated on a plan of the lands of Little Govan, signed as relative thereto.” Now, this of course is a very important clause, because it gives effect to those restrictions which the seller of the minerals thought it expedient to impose upon his disponees in order to promote the sale of his lands of Little Govan, as is set forth in the narrative of the disposition. For this purpose he restricts his disponees to certain portions of the ground as the only places where they are to sink pits or make any operations upon the surface connected with the working and winning the coal. They are restricted to the south of a line delineated on a plan. Now, the property of the pursuers lies entirely to the north of that line. And therefore we have here a distinct provision that there are to be no coal pits or erections of any kind or any breaking up the surface upon that part of the ground which belongs to the pursuers. Then there are some other provisions which are not of importance, but a little further on these words occur, “With full power and liberty, however, to my said disponees to work and win the coal and ironstone of the said lands lying to the north of the said line, provided the same be done from pits on the south side of the line, without breaking the surface of the land lying on the north side of the said line.” That only makes more clear still what is provided for in the clause that I have just read. Then follow these words—“With full power and liberty to the Coal Company and their foresaids to make such roads on the south side of the foresaid line as they shall find necessary for the coal work, and also to make the following roads 30 feet wide on the north side of the said line delineated on the foresaid plan, and the lines of all which roads are delineated in the said plan.” That gives a certain very limited right to make certain fixed and defined roads upon the ground which is to the north of the line, and which includes the ground belonging to the pursuers. Then there is a further clause providing that “my said disponees shall have the right and privilege of working and winning freestone for the purpose of the works and buildings for the said coal works allenarly, in any part of the lands and others specified and contained in a tack entered into betwixt me and my said disponees for the space of seventy-four years from and after the term of Martinmas 1800, and that for and during the continuance of the said tack.” And now we come to the clause which is chiefly relied on by the defenders, which provides for the damage to be paid by the disponees for any injury they may do in the course of their operations. The words are these—“But for the whole damage and injury occasioned by the foresaid operations and roads and quarries, to the foresaid lands, the said Robert Houston Rae and his heirs and successors shall be completely paid and indemnified by his said disponees, who by acceptation hereof bind and oblige themselves to pay the damage occasioned by the said operations to the said Robert Houston Rae and his foresaids, as the same shall be ascertained by two neutral persons, to be mutually chosen by the parties interested: Declaring always that these presents are granted with and under the burden of the feu-rights made and granted, or agreed to be made and granted, by Mr Houston Rae.” Now, it must be observed that this clause applies, not to the portion of the mineral field which lies under the property
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So stands the case as between the disponer and the disponee under that deed. Now, how does the matter stand as regards the pursuers, who have acquired their rights from the same person who granted that conveyance of the minerals? One of their deeds is the year before the conveyance of the minerals, and the other in the year after. I begin with the conveyance of the surface, which is granted the year after this conveyance of minerals, in order to see whether anything is there contained which would justify the mineral owners—who, I have now demonstrated, I think, have no such right under their own title—in working contrary to the common law right of the proprietors of the surface as regards bringing it down. That disposition conveys 25 acres of land called Southcroft of Shawfield, and is dated the 9th of January 1801. The clauses which deal with the minerals begin in this way—“Reserving also to us and our successors, tacksmen, or feuars, the whole coal and ironstone in the foresaid lands and estate, with
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There only remains for consideration the title which the pursuers have to the 6
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But there may be a question beyond that, and the Lord Ordinary has been asked only to consider this question with which I have now dealt—there may be a case beyond that, of which I desire to say nothing in the meantime. The owner of the surface may so load the surface with superincumbent weight of buildings or other things as to render it impossible for the mineral owner to exercise his rights of working and winning in a fair way without bringing down the surface or injuring it, and a question would in that case arise whether the common law right of the owner of the surface can be pushed so far as to say, You shall not only not work minerals in such a way as to take away the support of the surface, but you shall not work them in such a way as to take away the support necessary for the great superincumbent weight which I have placed upon the surface, far beyond what could have been contemplated by any of the parties to these deeds. That is fairly raised upon this record, and may form the subject of discussion hereafter before the Lord Ordinary. All the length I go at present is to say that I think there is nothing contained in any of the titles to take away or interfere with the common law right of support belonging to the owner of the surface.
About the common law right of the party who is the owner of the surface to have that property protected from the operations of the underground proprietors of the minerals there is no dispute. He has two remedies. He is protected at common law, and he is entitled to damages for injury arising from the workings, and he has also this further protection, that he is entitled to interdict as against the mineral owner, if he is in the course of so working his minerals as to produce that injury, or to be likely to produce that injury. In the case of
Buchannan v. Andrew, to which we were referred, the Lord Chancellor said—“There is no doubt that, generally speaking, when a man grants the surface of land, retaining the minerals, he is guilty of a tortuous act if he so uses his own right to obtain the minerals as to injure the surface or the things upon it, and he would be answerable in damages for doing so. And as the act would be wrong, and as he would be answerable in damages for it, and as prevention in such a case is a better remedy than any damages, the Court would be justified in granting, and probably would be called upon to grant, an interdict to prevent him from doing so.” That is the common law. Now, then, the question is, whether the peculiar terms of the title on the point, to which your Lordship has referred, deprives him of the one-half of this common law remedy? That is the question. Has the proprietor of these 6
The question to be determined is, whether under the title which the Court are now called on to construe the pursuers have lost their common law right of support of the surface of their lands? The defenders do not say that that right has been expressly surrendered. There is no power in these deeds given expressly to cause disturbance or subsidence of the surface. The case that is made in defence is that by implication from the terms of these deeds a power to that effect has been given to the owner of the minerals. I agree with your Lordships in thinking that in order to take away the common law right any such implication must be clearly made out. Unless the defenders are able to show that it is clearly implied by the terms of the deeds that they have a right to cause disturbance or subsidence in the surface of the pursuers' grounds, it must be held that they have no such right.
Taking the case in that view, I further agree with your Lordships in thinking that what is mainly to be looked at in this question is the title of the defenders. They have got a right to the minerals from the proprietor, but the measure of their right in a question with the surface owner is to be found in their title. If the surface owner is able, pointing to their title, to say “Your right is to some extent limited”—if he succeeds in showing that, the mineral owner
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The view that I have now stated is very clearly expressed in the most recent case that occurred in the House of Lords, by Lord Blackburn, in a passage in a report of the case in Law Reports, vol. vi. of the English Appeal Cases, p. 468, where he said—“But when you find it said, as it is here, that the mineowner or lessee shall do certain things underground and a great many things upon the surface, and afterwards make compensation” (as it is said in the lease) “for all damage occasioned by the exercise of the rights hereby reserved,” or (as it is said in the lease) shall at the end of the lease “compensate the lessor for any damage or injury done to the surface of the said farms and lands” (that means any damage done to the surface of the said farms and lands in the exercise of the rights previously given), “and when we find that these rights do include a great many things which will necessarily damage the surface, the reasonable conclusion is that the meaning is that there is to be compensation for things done in the exercise of those rights. I cannot see that that affords any argument whatever for saying that the lessor intended that the lessee should be able to do something more and let down the surface.”
Accordingly, if I am right in holding, as I do, upon the construction of this deed, that even in regard to the great block of this property—the 500 acres—the great part of that 500 acres beyond the pursuers' property in regard to which the pursuers of this action have no interest whatever—there is no power given or implied to let down the surface, it appears to me to be extremely difficult indeed for the defenders to make out that they have such a power in regard to the pursuers' property. If under the defenders' title, even in regard to that portion of the ground on which they may execute such surface operations, and on which they may make such erections as they may think necessary or expedient for the working of the minerals, they have nevertheless no power to work so as to cause subsidence, it is very difficult to suppose that they can have such a power in regard to land clearly protected against even surface operations. I find it very difficult to adopt any such view taking this deed as a whole, and I do not find, as we advance to consider the clauses, that it can bear that meaning, which would indeed be extravagant, I think, if I be right in my view as to even the unprotected territory.
Having said so much upon the deed generally, I do not mean to follow your Lordship in detail over your criticisms upon the particular clauses. I shall only say that it appears to me that the clause providing for compensation for damage was really intended to be applied by the parties to the ground to the south of the line specified in the deed, for there only were surface operations to be performed. And I agree with your Lordship in thinking that the word “operations” in the compensation clause has reference, not to the general power of working and winning the minerals throughout the whole lands, but to the special operations that were authorised. I must, however, qualify what I have said by this, that I find there is a certain limited power to execute surface operations even to the north of that line. There is a provision that the parties may “make the following roads 30 feet wide on the north side of the said line,” and then certain roads are enumerated; and there is a further provision that there may be workings in a freestone quarry, the precise locality of which the parties have not informed us of, but which may be, for aught I know, to the north of that line, and accordingly I should read the clause which
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In regard to the deed of January 1801, conveying the surface of the 25 acres—in which I observe it is narrated that the previous conveyance of the minerals had been laid on the table at the roup and was referred to in the articles of roup—in regard to that deed I concur generally in your Lordship's view. It cannot be doubted that it is a most confused deed in its expression, for it begins in the first place with a reservation of coal and ironstone, with power to work and take away the same, and to drive levels and drains, and do all other things necessary for working the minerals, followed by a declaration that in no possible view shall there be claims against Mr Grahame, the trust — disponee, for making pits, hills, and roads. If you take that first part of the clause, there can be no doubt that it contemplates giving full power to execute the ordinary surface operations required for the working of minerals, including the sinking of pits. But then the very next part of the deed goes on to provide exactly the opposite, because it proceeds—“And further, we and our foresaids, and our tacksmen and feuars, or others deriving right from us, shall have no right to break or enter upon the surface, or to erect any houses or make pits or hills,” and so on. And having thus provided that the mineral owner may execute certain operations, and then declared that he shall not execute such operations, we come to what I think must be accepted as really the measure of the rights of the parties, in the concluding clause, to this effect—“Declaring that the rules and regulations and provisions contained in the said feu-right shall be the rule of proceeding and settlement” between the parties. That, I take it, simply provides that the rights of parties shall be determined by the mineral owner's title, and accordingly this deed throws us back to the mineral title, which I have already dealt with. I may say further, however, that if it were not so, then it appears to me that the clause, which after mentioning different operations provides that the persons carrying on these operations shall be liable to the said James Hill, &c., for the whole damages thereby occasioned, as the same shall be ascertained by neutral men, is, in my opinion, satisfied by the authority to execute surface operations. The deed in that part of it authorises surface operations, the damages clause provides that damage shall be paid in the event of such operations being performed, and therefore the full meaning of the damages or compensation clause is exhausted when it is held to refer to surface operations. And so, even upon this deed and in that view of it, I do not think there is any right by implication given to let down the surface.
The only difficulty that I have felt in the case has arisen—where your Lordship has put it—upon the earliest of these deeds, relating only to the property of 4
As regards the remaining point, I think with your Lordship that it is quite right that there should be no decision on the question. It is said—how the fact may be I do not know—that this proprietor has erected buildings of such magnitude and weight upon the surface as practically to prevent the mineral owner from getting at the minerals which he is entitled to work out, and that the surface owners propose to erect further buildings. If such buildings are on the ground, the question arises whether the owners of the surface, who have thus prevented the working of the minerals wholly or to some extent, must not make compensation for the injury that they on their part have done? I give no opinion at this moment on that subject, but certainly there is great room for the argument that if that is the state of the facts, then the mineowner is not to have his property taken away without compensation. But that is a matter which I understand your Lordship leaves entirely open, the finding of the Court now being merely to this effect, that the owner of the surface has not by the terms of these deeds lost his common law right of support.
The Court pronounced this interlocutor:—“The Lords having heard counsel on the
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Counsel for Pursuers— Lord Advocate ( Balfour, Q.C.)— Mackintosh. Agent— F. J. Martin, W.S.
Counsel for Defenders— Solicitor-General (Asher, Q.C.)— Mackay— Pearson. Agents— Melville & Lindesay, W.S.