Borthwick-Norton v Gavin Paul & Sons
| Jurisdiction | Scotland |
| Judgment Date | 18 July 1947 |
| Docket Number | No. 69. |
| Date | 18 July 1947 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Keith.
Mines and Minerals"Minerals"SandDisposition of land reserving specified substances and all other "minerals"Construction of dispositionWhether sand included in reservationEvidenceContemporanea expositio.
PrescriptionPositive prescriptionTitleDispositions of land to one party and of reserved minerals to another partySecond party working sand on and under first party's landWhether second party's title habile to carry sandSufficiency of possession.
In 1922 the proprietors of a farm conveyed it to the farmer, reserving from the disposition "the whole seams of coal including gas coal, oil shale, fireclay, ganister, ironstone, iron ore, limestone, freestone and all other mines metals and minerals lying in and under the subjects hereby conveyed." In 1923 they conveyed to a limited company the substances reserved in the preceding disposition. The district in which the farm was situated contained extensive deposits of sand which was found a short distance below the surface of some 71 per cent of the area of the farm. In 1924 the company required sand, and wrote to the farmer stating that they proposed to test the quality of the sand in an old sand and gravel pit on his land. The farmer at first objected, but he ultimately acquiesced, and in 1929 he accepted compensation as from Martinmas 1924. Thereafter he and his successor in title continued to accept compensation, and the company to work the sand, until 1943, when his successor questioned the right of the company to remove sand. In July 1945 the successor brought an action for declarator and interdict to establish his right to the sand.
The Court granted the declarator and interdict craved,holding that the question whether sand was or was not included in the reservation of minerals depended upon the intention of the parties to the conveyance, the onus being on the defenders to prove an intention to include, and that they had not discharged this onus, in respect (1) that they had failed to show (a) that the sand was exceptional in use, character or value and other than a part of the ordinary subsoil of the district, and (b) that at the time of the conveyance it was known as a mineral in the vernacular of mining engineers, commercial men and landowners, and (2) that the doctrine ofcontemporanea expositio, on which they relied, was not applicable, in view, in particular, of the fact that the transactions in the matter of sand upon which they founded, whatever might be their exact basis, were not transactions between the parties to the original disposition.
Held further that the company had not established a right to the sand by prescriptive possession, per Lord Mackay on the ground that they had enjoyed possession of the sand pit for a period of less than twenty years, and per Lord Jamieson on the ground that their title was not habile to carry sand, sand not being within the grant.
By disposition dated 12th June and registered in the Register of Sasines on 3rd July 1922, the trustees of James Cumming Dewar, heritable proprietors of the estate of Vogrie, disponed to William Alexander Hutchison the farm of Borthwick Mains, forming part of that estate, "excepting and reserving always from the said farm, lands and field hereby conveyed the whole seams of coal including gas coal, oil shale, fireclay, ganister, ironstone, iron ore, limestone, freestone and all other mines metals and minerals lying in and under the subjects hereby conveyed with full power to us and our assignees disponees or lessees to search for, work win and carry away said minerals on the longwall or other method of working involving complete extraction and the lowering of the surface of the ground, and for these purposes right to make open casts, put down mines, sink shafts, erect buildings, coke ovens calcining hearths and limekilns make roads and railways on the surface of the said subjects and manufacture and carry away the said minerals and also minerals in the adjoining lands which we or our foresaids may have right to work and to take ground and to do all other things and works required for the due working and conveyance of the said minerals and substances and the said minerals in adjoining lands all on payment of compensation to the possessors and owners of the surface for all damage which may be occasioned by these operations as the same may in case of a dispute be settled by arbitration." By a subsequent disposition dated 14th September 1923, Mr Dewar's trustees disponed to Gavin Paul & Sons, Limited, "the whole seams of coal including gas coal, oil shale, fireclay, ganister, ironstone, iron ore, limestone, freestone and all other mines metals and minerals lying in and under and forming part of the lands and barony of Vogrie." The second disposition also repeated the conditions as to working the minerals and for making compensation to the surface owners which were contained in the disposition of the farm of Borthwick Mains.
In July 1945, James Waugh, the then proprietor of the farm of Borthwick Mains (in whose room and place Hugh Frank Pakenham Borthwick-Norton was sisted on 7th May 1946), brought an action against Gavin Paul & Sons, Limited, concluding "(1) For declarator that the pursuer has the sole and exclusive right of property in the sand forming a sand field on or near the surface of the farm and lands of Borthwick Mains, Gorebridge, Midlothian, and that the defenders have no right or title thereto or interest therein. (2) To interdict the defenders by themselves, or by others with their authority, from searching for, working, winning or carrying away the said sand, or otherwise interfering in any way therewith."
The defenders pleaded, inter alia:"(4) The defenders, having, in virtue of the disposition in their favour, the ownership of said sand field and the right to work the same, are entitled to absolvitor. (5) The pursuer having no right of property in said sand field, decree of declarator and interdict should be refused. (6) The pursuer having no right to interfere with the defenders' operations in said sand field, the defenders should be assoilzied. (7) The defenders, having exercised their right to work said sand field for more than twenty years, are entitled to absolvitor."
Proof before answer was taken by the Lord Ordinary (Keith). The evidence, which is more fully referred to in the opinions of the Judges of the Second Division, established that in 1924 the defenders required sand for building purposes in connexion with a colliery worked by them, and wrote to Mr Hutchison saying that they proposed to test the quality of the sand in a sand and gravel pit reported to be on his land. The sand pit, which had not been worked for many years, was marked on the Ordnance Survey maps of the district as a "gravel pit." Mr Hutchison at first objected, and refused to allow the defenders' servants to open up the pit, but later acquiesced. In 1930 he received compensation from the defenders for the five years from Martinmas 1924, and thereafter continued to accept compensation until 1931, when he sold the farm to James Waugh, who also received compensation until June 1943, when through his solicitors he questioned the right of the defenders and their lessees to work the sand, as they had been doing since 1924.
The district in which Borthwick Mains farm is situated contains large deposits of sand, which occur on or a short distance below the surface of about 71 per cent of the area of the farm itself. Conflicting evidence was given as to the quality of the sand found in the sand pit worked by the defenders, it being described on the one hand as "good sharp building sand" and on the other as "dirty." Further conflicting evidence was given on the question whether sand was spoken of as a "mineral" in the vernacular of mining and commercial men and landowners. Certain publications were referred to in the evidence, though not produced, which included sand among minerals.
On 8th January 1947 the Lord Ordinary repelled the pleas in law for the defenders, and granted declarator and interdict substantially as concluded for.
At advising on 18th July 1947,
LORD MACKAY.Very generally speaking this reclaiming motion, which attempts to displace an interlocutor of the Lord Ordinary finding for the pursuer, who is the owner infeft in the farm and lands of Borthwick Mains, concerns a straight conflict of competing titles of a certain substance lying partly on the surface, but probably more largely a short way under the surface, of these lands. I have said "substance," and I shall return later to the exact nature of the substance disputed.
The lands were purchased in 1921 at a cost of 5100, and the title with which primarily the dispute deals was signed and witnessed on 12th, 17th, 20th and 21st June 1922, and sasine by registration was effected of date 3rd July 1922. The defenders are a limited company who run mining ventures and apparently some other businesses not completely specified, and in particular they had in working a complete
coal pit within the estate of Vogrie before the earliest of these dates. They worked this Vogrie pit up till 1938, when it apparently became unprofitable. Thereafter they ceased. The competing title on which they found is dated one year later than the other, 14th, 24th and 25th September and 1st October 1923; and sasine by registration did not follow till 12th October 1923. A feature which deserved greater notice than it obtained is that this title does not fall to be roundly treated as if it disponed in especial any "seams of coal including gas coal" and other enumerated substances, or any mines or metals or minerals, lying only in the lands of Borthwick Mains. A witness, Drysdale, (who was not quite the proper witness to make the admission) admits that their disposition purported to convey the substances, mines and minerals in the whole of Vogrie Estate. It is only in so doing that the...To continue reading
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