Dryburgh v Fife Coal Company, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1905 |
| Docket Number | No. 188. |
| Date | 20 July 1905 |
| Court | Court of Session |
Lord Low, Lord Kyllachy, Lord Kincairney, Lord Stormonth-Darling, Lord Justice-Clerk.
Mines and MineralsMineral LeaseSubsidenceLiability of mineral tenant for damages to feuarsLarge increase of feuing subsequent to date of leaseJus qusitum tertio.
By a lease dated in 1877 Wemyss let an extensive coalfield to a company for thirty years, with a break every four years. The mineral tenants were taken bound to work the coal by the longwall or other method of complete excavation, and so as to insure the greatest output, but were bound to leave solid unworked masses of coal where it might be necessary for the support of existing buildings on the lands. They further obliged themselves during the currency of the lease to make compensation for all ground which they might use or injure by any of their operations under this tack, and to make good and discharge all damages of what kind soever which they may in any way occasion to any lands, crops thereon, houses, or woods, or fences and drains, wells or water-courses, and whether such damage shall be due to the lessors of the colliery or to the landlord, or land tenants, feuars, or others.
In 1894 Wemyss feued off a piece of ground, taking the feuar bound to erect thereon a house of a specified value, but reserved to himself and his successors the whole minerals in the ground feued, declaring that the feuar should have no claim for any damage against him and his successors caused by the working of the minerals, but reserving to the feuar all claims which might be competent to him in respect of any such damage against the tenants or tacksmen of the minerals and others in so far as such tenants or tacksmen may be liable for such damage, without having any right of recourse or relief, or any other remedy against Wemyss or his successors.
At or about the date of this feu-disposition Wemyss gave off about thirty other feus in terms, mutatis mutandis, identical with the foregoing, and houses were built on each feu. The houses were all miners' houses or houses of a similar class.
In 1903 the feuar under the feu-disposition above set forth brought an action against the mineral tenants for damages on account of injury to the house on his feu admittedly occasioned solely by subsidence due to the complete excavation of the coal in terms of the mineral lease.
Held by Lord Low, Ordinary, that while the liability of the tenants in damages was not confined to injury to houses existing at the date of the lease, the number of houses actually erected was much in excess of what could reasonably have been supposed to have been in the contemplation of the parties at the date of the lease; that it would therefore have been against the good faith of the contract for Wemyss himself to claim damages from his tenants for injury to the houses, such damage having been occasioned by the method of working stipulated in the lease; and that the pursuer, as a feuar from Wemyss, had no higher right, and was not entitled to damages.
Held (rev. the judgment) (1) that under his feu-disposition the pursuer's common law right to support of the surface was reserved to him intact except as regarded the liability of the superior, Wemyss, directly or by way of relief; (2) that the defenders, being bound by their lease to make good all damage to feuars, were liable in damages to the feuars directly and without right of relief against Wemyss; (3) that the fact that a large number of feus had been granted and houses erected thereon did not affect the liability of the defenders to the pursuer, as a feuar, whatever might have been the liability of the defenders in a question with Wemyss himself; and therefore (4) that the pursuer was entitled to damages from the defenders.
In March 1904 Andrew Dryburgh, who held a feu under Mr R. G. Erskine Wemyss, of Wemyss, of a piece of ground with buildings thereon (but reserving the minerals) at Crossroads, near Methil, Fifeshire, brought an action against the Fife Coal Company, Limited, who were the lessees under Mr Erskine Wemyss of certain coal on the Wemyss estates, including the coal underneath the pursuer's property. The summons concluded for declarator that the defenders as tenants of the coal or other minerals lying underneath or in the immediate neighbourhood of the pursuer's property, are bound to work said coal or other minerals under such precautions and in such a way as not to injure said piece of ground, or the buildings belonging to the pursuer erected thereon, by depriving the same of support or causing subsidence of the ground, or otherwise: And further, that the defenders are bound, in the event of such injury being caused to said ground or buildings by the defenders' operations as tenants foresaid, and to the extent thereof, to make payment to the pursuer in respect of the loss, injury, and damage sustained by him; and for decree for 500 as damages.
The pursuer's title was a feu-disposition dated in 1894, which was granted by certain trustees, who then held the Wemyss estates, in favour of Andrew Swinton, mason, Methil, and was acquired by the pursuer in 1903. By this feu-disposition Swinton was taken bound to erect and maintain on the ground buildings of a specified yearly value. Swinton erected such buildings, and they were acquired by the pursuer along with the ground. They consisted of a twostoreyed tenement of eight miners' houses, and were all let at the date of the action at the total yearly rental of 53, 10s.
The feu-disposition contained a reservation of minerals in the following terms:Reserving always to us and our successors in the said lands and others the whole metals and coal, limestone, freestone, and minerals, and fossils of every description within the piece of ground before disponed, with full power to us and our foresaids, or any person authorised by us or them, but without entering upon the surface of the said feu, to work, win, dig, and take away the same, declaring, as it is hereby expressly provided and declared, that the said Andrew Swinton and his foresaids shall have no claim whatever against us as trustees foresaid, or our successors as aforesaid, for any damage that may be done or caused to the piece of ground hereby disponed, and buildings erected or to be erected thereon, or to the water with which the same may be supplied, by any of the operations in time past or to come, of us or our predecessors or successors and tenants, in working and removing or draining the metals, coal, stone, minerals, and others hereby reserved, or in the neighbourhood of the piece of ground hereby disponed, or which may arise from or through the setting or crushing of any waste or other excavation presently existing, or which may hereafter exist, within or in the neighbourhood of the piece of ground hereby disponed: And declaring that, as regards us and our foresaids, all loss, risk, or damage in any of the events foresaid shall be borne and sustained by the said Andrew Swinton and his foresaids themselves: But reserving always to the said Andrew Swinton and his foresaids all claims which may be competent to them in respect of any such damage as aforesaid, against our tenants or tacksmen of the minerals and others in or near the said piece of ground, in so far as such tenants or tacksmen may be liable for such damage, without having any right of recourse or relief or any other remedy against us, as trustees foresaid, and our foresaids.
The pursuer in his condescendence founded on the feu-disposition, and quoted the clause of reservation of minerals. With reference to the defenders' lease of the coal the pursuer stated:The pursuer is not fully aware of the terms of said lease, and has, in point of fact, been refused all information regarding its terms. The defenders are called upon to produce the lease under which they work the said minerals.*
The pursuer further, on record as originally closed,* averred;(Cond. 4) In the course of their working the defenders have for some time past been removing coal and other minerals from beneath the pursuer's feu and adjacent ground at Crossroads, near Methil. The result of the operations has been to cause subsidence of the surface of pursuer's feu, and very serious resulting damage to the buildings erected on the ground. Then followed specific details. (Cond. 5) The loss and damage foresaid suffered by the pursuer has been caused by the fault of the defenders. In excavating the coal and other minerals leased to them they are bound to do so without causing subsidence of the surface of pursuer's feu, or doing damage to the buildings thereon; and they have in this respect neglected their duty towards the pursuer. But further, they took no precautions to mitigate the damage likely to be caused by their operations either by leaving the minerals undisturbed in the ground beneath said feu, and within such distance adjacently as would reasonably secure the surface, or by substituting artificial support of the surface for the natural support removed by them. This, in any event, they were bound to do, and they failed.
The defenders answered;(Ans. 4) Admitted that in the course of their workings the defenders have removed the coal and other minerals from beneath the pursuer's feu and adjacent ground at Crossroads. Admitted that there has been a certain amount of subsidence of the pursuer's feu, and some damage to the buildings on the ground. Quoad ultra denied. (Ans. 5) Admitted that the defenders did not leave undisturbed the minerals beneath the said feu or adjacent thereto, and that the defenders did not give artificial support to the surface. Such support was not practicable. Quoad ultra denied.
The defenders in a statement of facts further averred;(Stat. 3) When the said lease was granted [i.e., in 1877], the surface estate of the subjects thereby conveyed was mainly rural and agricultural in its character, and, in particular, no feus had been...
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