Livingstone v Rawyards Coal Company

JurisdictionUK Non-devolved
CourtHouse of Lords
Judgment Date13 February 1880
Date13 February 1880
Docket NumberNo. 1.,No. 132.
House of Lords

Ld. Chancellor (Cairns), Ld. Hatherley, Lord Blackburn.

No. 1.
Livingstone
and
Rawyards Coal Co.

Mines and Minerals—Working beyond march—Reparation—Measure of damages.—

In an action at the instance of the proprietor of a fen extending to about an acre and a-half, the coal under which was not, as was the case in adjoining feus, reserved to the superior, against the lessees of the superior's mineral field, for damages for working out the coal under the feu, held (aff. judgment of First Division) that there being in the circumstances mutual error as to the right to the coal, and entire bona fides on both sides, the measure of damages was what the coal excavated was worth to the pursuer, and that the extent of the feu being such that the pursuer could not himself have worked or let to profit the coal under it as a separate subject, he was fairly compensated by receiving a lordship on the coal excavated, calculated at the rate paid by the defenders to the superior for the surrounding coal field, plus the surface damage.

(In the Court of Session May 20, 1879, ante, vol. vi, p. 922.)

James Livingstone, the proprietor of a small feu near the centre of a large mineral field, sued the Rawyards Coal Company, the lessees of the neighbouring coal, for damages for working out the coal under his ground, thereby depriving him of his coal, and injuring his buildings through subsidence. The working had taken place under a mistake, all concerned, the pursuer included, being in the bona fide, belief that the coal under the pursuer's feu had been reserved by the superior and leased to the defenders.

The Lord Ordinary found the pursuer entitled to the market value of the coal wrought, less the estimated cost of working, exclusive of lordship and capital charges.

The First Division of the Court of Session, on a reclaiming note for the defenders, altered, and found the pursuer only entitled to the same royalty as was paid by the defenders to the proprietor of the adjoining coal field, but in addition to a sum of £200 for surface damage.

The pursuer appealed to the House of Lords.1

Lord Chancellor.—My Lords, there are two minor points in this appeal which. I may mention in the first place for the purpose of putting them on one side—I mean the question of an allowance for way-leave, and the question of an allowance for what is termed the advantage obtained by working through instead of round the feu of the appellant. Both those points were insisted upon before the Lord Ordinary, but when the matter came before the First Division the contention of the appellant with regard to those points does not appear to have been renewed, and therefore to enter upon them now would be in substance to entertain in this House an appeal from the Lord Ordinary and not from the First Division.

Upon the main question which has been argued, the case is one of some peculiarity. The appellant is the owner of a small feu of about an acre and a-half in extent near Airdrie. The surface of the ground is occupied by miners' cottages, and underneath there was coal. When the appellant bought the feu some time ago he appears to have been under the impression that the minerals under this feu, as under all the ground which surrounded it, had been reserved by the superior. In point of fact that was a mistake. The superior kept in his hand the minerals under all the ground around, but under this acre and a-half the coal had not been reserved in the grant of the feu now owned by the appellant. The appellant, therefore, although he did not know it, was the owner of the coal under this acre and a-half of ground. The superior leased the whole coal in the surrounding land to the company who are the respondents before your Lordships, and they, just as the appellant was ignorant of his rights, appear to have been ignorant of theirs. They appear to have been under the impression that they had the whole of the coal, including the coal under the acre and a-half. They had the coal which surrounded the acre and a-half, but they had not the coal which was underneath the acre and a-half. In the process of their working they worked out the coal under the acre and a-half, and when that was done it was ascertained (it is unnecessary to observe how the discovery came to be made) what the real titles were, and that this coal really belonged to the appellant, and did not belong to the respondents, who had got it and disposed of it. I ought to add that in. working under the acre and a-half of ground they had by letting down or cracking the ground caused some damage to the miners' cottages which stood upon the surface of the acre and a-half.

Now, under these circumstances, the question arises, what is the measure of damage to which the appellant is entitled? We may put aside some elements which might occur in some cases, but which do not occur in the present case. There is absent here the element of any wilful trespass or wilful taking of coal which the person taking it knew did not belong to him. What was done was done in perfect ignorance, and there was no bad faith or sinister intention in that which was done. We may put aside another element which might have occurred. It might have been the case that the support of the coal under this acre and a-half of ground had been of some peculiar advantage or benefit to the appellant, for which no money would compensate him. Either by some use made of the surface, or by some specific use intended to be made of the surface,

there might have been a peculiar need for the support of the minerals underneath, which might either have made it impossible to estimate the damage, or might have made the estimate of the damage exceptionally high. Neither of these elements occurring—neither the element of what I will call wilful trespass, nor the element of special and exceptional need for support—the case is one in which your Lordships have simply to ascertain what is the ordinary measure of damage for the coal taken, or what, in other words, is the value of the coal that was taken.

Of course the value of the coal taken must be the value to the person from whom it was taken, because I do not understand that there is any rule in this country or in Scotland that you have a right to follow the article which is taken away—the coal which is severed from the solum—into whatever place it may be carried, or under whatever circumstances it may come to be disposed of, and to fasten upon any increment of value which from exceptional circumstances may be found to attach to that coal. The question is, what may fairly be said to have been the value of the coal to the person from whose property it was taken at the time it was taken.

I own that it appears to me that the Court of Session have adopted a principle which is not unsatisfactory for the purpose of ascertaining that value. They have said—The value to this appellant is not the value which he could have derived from himself working the coal and taking it into the market, because he could not have worked it; the area is so small that it would have been impossible for himself to have worked and used the coal and earned a profit, or put an additional value upon the coal by so working it; he must have gone to some person, or waited till some person came to him, who had the power of working the coal from adjacent workings; therefore (say they) the value is that which he could have obtained from somebody else, who would have taken the coal as it stood in situ, and who would have worked it and turned it to account. Then they go to the witnesses of the appellant, and they take Mr Rankine, his principal witness; and I observe that another witness of the same stamp and character as Mr Rankine immediately follows, who wishes his testimony to be taken as repeating Mr Rankine's in omnibus. Therefore these two witnesses must be taken to say this:—Mr Rankine is asked this question—‘Suppose you had been asked by pursuer whether it would be advisable for him to sell the whole of these minerals to defenders for £100, the defenders paying compensation for the damage to the houses, would you have advised him to take it?’ and his reply is—‘The advice I have invariably given—I have done it in two instances within the last two years—is, “Don't let your coal for a less lordship than that obtained by the adjoining proprietor;' and in that case I should have said to the pursuer—' Don't take less than £171, 7s. 6d. for the coal, plus the damage to the houses.”’ He says that the advice which he would have given to his client would have been not to sell for less than (which implies of course to sell for) £171, 7s. 6d., plus the damage done to the surface—that is to say, that if there had come to him some person who from the possession of the adjoining property had been able to work this coal, and had asked the appellant to sell the coal to him, the appellant would have been advised to reply—‘I will sell you the coal for a royalty—that is to say, a sum per ton—which will produce to me £171, 7s. 6d.; but in addition you must undertake to pay me whatever damage is done to my houses which are upon the surface of the land;’ and for the purpose of the present argument the amount of damage ascertained and not objected to is a sum of £200.

Upon that evidence the Court of Session say—‘We are of opinion that the value to this appellant of this coal was the money that would have been produced if he had sold the coal, and the money that he would have got if he had sold the coal would have been £171, 7s. 6d.; but that would have been accompanied and guarded by a further payment which would have indemnified him for the damage done to the houses upon the surface in getting the coal, and that further sum he must have in addition to the £171, 7s. 6d.’

My Lords, I own that under the very peculiar circumstances of this case, there being only the element to consider to which I have referred, namely, the element of value to the appellant, I...

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