Andrew Wauchope, Esq. of Niddry v. Earl of Abercorn, and Sir John Hope [1780] UKHL 2_Paton_519

UKHL
Andrew Wauchope, Esq. of Niddry v. Earl of Abercorn, and Sir John Hope
[1780] UKHL 2_Paton_519
tenement, and lower down, was subject to a natural servitude of receiving the water that came down from the higher colliery. Held, in the Court of Session, that Niddry was entitled to make the downsets. On appeal, remitted for consideration.Circumstances where the level of a pit was communicated by the lessee to a neighbouring colliery, with proviso of the proprietor, that the level should not be communicated into any other neighbouring collieries, for the purpose of working the coal, to the prejudice of his original property; Held, on communication of the level to the neighbouring collieries, that the appellant was entitled to have it shut up; also held, in consequence of such communication, that the recompense due to him must be adequate to the benefit which has been enjoyed by the use of such level. There was a thick wall left in working the Niddry coal, which divided it from the coal of Woolmet, which stood higher up. The wall, consisting of porous coal, did not prevent the water from flowing down from the Woolmet pit to the Niddry coal. The proprietor of the latter was proceeding to make downsets to prevent this, when Sir Archibald Hope brought a suspension, contending that the Niddry coal, being the inferior

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This is the sequel to the cases reported ante , p. 286 and 338.By the last appeal, the House found that the appellant was entitled to have the level in question shut up by the respondents, and that they, Sir Archibald Hope, and Mr. Wauchope of Edmonstone, were liable to him in recompense, as may be just and reasonable, for the benefit they had enjoyed, by means of opening and communication of said level to their collieries. And as to the other point in the case, in reference to the procuring the consent of the Earl of Abercorn to the communication of the Duddingstone level to the Niddry coal, it was ordered, that the case may be remitted back to the Court of Session, with power to make the Earl of Abercorn a party to the suit, so that he may appear and plead for his interest, in regard to the lease granted by him to John Biggar.July 5, 1774.In consequence of this remit, the case was again resumed in the Court of Session, and the Earl of Abercorn called as a party. In the meantime, the Lord Ordinary, of this date, ordered Sir Archibald Hope forthwith to shut up the level in the Gillespie seam, and to keep it shut in time coming, but Sir Archibald did not do this till October following.The summons making the Earl of Abercorn a party to the suit, set forth, “That the level of Duddingstone coal, having been, in virtue of the above lease, communicated by Andrew Wallace to the coal of Niddry, during the currency of the lease of the Duddingstone coal to John Biggar; this communication must be kept free and open, in all time coming, for the draining and carrying off the water from the coal in the Niddry lands; and this being declared, the Earl of Abercorn, and Sir Archibald Hope, should be decreed and ordained to make and deliver a deed to the pursuer, ratifying and approving the communication of the Duddingstone level to the coal of Niddry, and binding and obliging them, jointly and severally, and their heirs, to keep the communication of the said level free and open in all time coming.”The appellant also amended his original libel against Sir Archibald Hope and Captain M'Dowall, to the effect of setting forth, “that neither the said John M'Dowall, nor

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The Earl of Abercorn also brought an action against Sir Archibald Hope, Captain M'Dowall, the present appellant Andrew Wauchope, John Wauchope, and Francis Charteris—stating his Lordship's lease to Biggar now vested in Sir Archibald Hope; and “that, in opposition to the covenants therein, Sir Archibald was proceeding to communicate the level to the Edmonstone and Woolmet coal, without offering to make any previous reference for ascertaining the consideration to be given the Earl, for consenting to such communication, or making any agreement known to him, for restraining further communication without his consent,” and, therefore, that the defendants should be decreed to deliver to the Earl the tenth part of all the coals, stone, minerals, or other things, wrought, or that should be wrought, by means of the said level.Aug. 3, 1776.The appellant having found it necessary to make two downsets in different seams of his coal, for preventing the water flowing from the upper collieries and drowning his colliery, the respondent, Sir Archibald, thought fit to challenge these operations by a suspension, contending that the Niddry coal, being the inferior tenement, was subject to a natural servitude of receiving the water that came down from the higher coal of Woolmet.

All these actions, after various reports of miners, &c., were

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The appellant maintained four questions.1. The recompense he was entitled to from Sir Archibald Hope, for his having communicated the level without the appellant's consent.2. Whether Sir Archibald, as come in place of Biggar, was obliged to procure from Lord Abercorn a perpetual right to the communication of the Duddingstone level to the Niddry coal, in terms of Biggar's lease with the appellant?3. Whether the level was effectually shut up?4. Whether the appellant had not right to make downsets in his own ground, and fill them up with clay, or other materials, for preventing the water flowing from the upper collieries and drowning his coal?June 26, 1778.The Court pronounced this interlocutor, “The Lords find, that the level communicated to the lands of Niddry, by Mr. Biggar, in right of his lease from Lord Abercorn, and in implement of his obligation to Niddry, contained in the lease betwixt Niddry and him, stands secured to Niddry, for the purpose of working the coal within the lands of Niddry, and that Lord Abercorn has no power to shut up that level, to the prejudice of Niddry's coal; but find, that the communication of the level, as covenanted in the lease betwixt Niddry and Mr. Biggar, is, and stands limited by an express provision, that it should not be in the power of Niddry to carry on that communication to the coal works of any neighbouring heritor, without the consent of Mr. Biggar. Find that this negative is now vested in Sir Archibald Hope, and must remain with him and his heirs, succeeding in Biggar's right, to the effect of restraining Niddry from opening and communicating the level to the coal works of any of the adjacent heritors, to the further prejudice of Lord Abercorn's original property; and therefore find that the recompense due to Lord Abercorn, by Sir Archibald Hope, must be limited to the benefit which has accrued, or hereafter may accrue, to the coal of Niddry, by the communication of the said level, and to the benefit which has accrued to the coals of Edmonstone and Woolmet, from the time the said level was opened, to the time

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Jan. 19, 1779.All parties having reclaimed against such parts of the above interlocutor as they conceived to be against them; Whereupon the Court pronounced this interlocutor:
“Before answer to Earl of Abercorn's petition, remit to Messrs. Smeaton and Watt, and either of them, to report to the Court, along with the estimate formerly ordered, an estimate of the expense of erecting and upholding an engine of sufficient power to raise the water from the depth of the sea level to the earth's surface, during the time of working the coal in Niddry ground, below level as well as above; and also to report any further facts that either of the parties may think material: Find the petitioner, Andrew Wauchope of Niddry, is entitled to make downsets in the seams of coal in his own ground, and to fill up the same with clay, stone, or other materials, so as effectually to prevent the water from coming down upon his coal from the coal of Edmonstone and Woolmet, and, with those variations, adhere to the former interlocutor, and refuse the desire of all the petitions.”
The appellant appealed from the first interlocutor of 26th June 1778; and also from that of 19th Jan. 1779; and particularly from such parts of both interlocutors as authorise and order a remit to Smeaton and Watt, or either of them, for the report upon the sundry points therein stated.The Earl of Abercorn also brought a cross appeal, complaining of the said interlocutors in several particulars. *Pleaded for the Appellant, Mr. Wauchope .—By your Lordships' judgment of 20th April 1774, the quantum of the appellant's recompense for the wrongful communication, was to be proportioned to such benefit as, under all the circumstances,

Footnote

* Sir Archibald Hope did not present any cross appeal against that part of the interlocutor, entitling Mr. Wauchope to make the downsets, to prevent the water flowing from the higher colliery to his inferior tenement; but acquiesced in that judgment.

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The interlocutors find, that the level was effectually shut up by the respondent Sir Archibald Hope, and continues so, though from the proofs the contrary appears, as at this moment coal is wrought at the Woolmet and Edmonstone lands level free, which formerly used to be covered with water; and the manner in which the work has been performed gives little hopes of its long continuing even in its present state. It appears by the depositions of witnesses that a greater quantity of water now comes down upon the Niddry coal, especially through the stair head and great seams, than there did before the level was communicated: and this made it necessary for the appellant to make the downsets in his own lands.

Pleaded for the Earl of Abercorn .—Every extension of

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The Earl of Abercorn's appeal was therefore brought, 1. In so far as the Court below did not find him entitled to a consideration for the levels being communicated to the Brunstane, in the same way as to Niddry. 2. In so far as they find that the quantum of the recompense ought to be determined, not according to a reasonable proportion of the coals wrought, or which may be wrought, by means of the level, but by an uncertain valuation, taken from the supposed difference between working by a fire engine and working by a level. 3. In so far as they find the Earl of Abercorn entitled only to a part of the supposed difference between working by a level and by fire engines. 4. By not determining, before the remit to Messrs. Smeaton and Watt, the proportions of the recompense which ought to be made to the several parties. The Earl maintains that Biggar communicated the level to the coal of Brunstane without any application to, or agreement with him. The mode also of ascertaining the recompense must be uncertain and erroneous, as directed by the interlocutors complained of: while, on the other hand, no sufficient reason is assigned why the Earl ought not to be entitled to the whole consideration payable for the communication of the level.Pleaded for Sir Archibald <link type="footref"><sup>*</sup></link> Hope .—As to Mr. Wauchope's

Footnote

* This is printed Sir John by mistake in the title of this appeal.

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In regard to the Earl of Abercorn's cross appeal, 1. Any further extension of the level can only be made by Mr. Wauchope, within whose property it has been effectually shut up; and as the respondent, in right of Mr. Biggar, and by terms of his lease, has a title to restrain Mr. Wauchope from again opening the communication, (the benefit of which negative is declared to be invested in the Earl), consequently the Earl's claim to recompense can only be for the communication already made; and the respondent can be liable to no more than a consideration for the communication of the level to the coal of Niddry, and the temporary use thereof enjoyed with respect to the coal of Woolmet. 2. By the appellant the Earl of Abercorn's letter of 3d October 1748, it was declared that the consideration payable by Mr. Biggar, instead of being settled by arbitrators before the work commenced, as originally proposed, should depend upon success of the undertaking, and be settled at a reasonable share of the profit arising from it. In which view of the case, the benefit derived from the communication of the level can never be more than the saving or difference of expense in working the coals of Niddry and Woolmet with the use of the level, and employing machinery to draw the water. And, in order to ascertain this expense, the Court of Session have adopted the only species of evidence which the nature of the thing can admit of, viz. a remit to two persons of skill and extensive experience in works of that

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After hearing counsel,Lord Mansfield ,
“Previous to making the motion, remitting this cause, entered into a long and circumstantial recapitulation, not only of the original grounds of litigation between the parties, but of the several stages of legal process through which the cause had passed, previous to its having been brought before their Lordships in this last appeal. His Lordship said:—
from the Earl of Abercorn, being to expire in May, which would give the whole matter, as far as it regarded the Earl's claim, and the answer of Sir Archibald Hope, a new turn. He also said, it was absurd to suppose, and he was a little astounded at having heard it seriously argued, that if it were established that a party was bound to pay and satisfy a specific claim for damages sustained, by his having, in the exercise of a right which was granted him to a certain degree, gone further than the right really extended, from a misconception of its extent, that the party was obliged to pay the same claim to two parties, because, in that case, the party to pay would pay double the sum he was bound to discharge.”
“The whole litigation originated in a lease, or tack (as it is called in Scotland), of the lands of Duddingstone, granted by the Earl of Abercorn in 1743 to John Biggar, who was now represented by Sir Archibald Hope, the respondent. (He then described the geographical situation of the lands of Duddingstone, Woolmet, Niddry, and Brunstane, which lie south and north, in a gentle descent from the most southern part into the sea northwards,) and pointing out whence the Earl of Abercorn's property is affected by the collieries worked in these lands, what the nature of the Earl's claim was, and what the nature of the claim made by Andrew Wauchope of Niddry, Esq., as well as the defence and grounds of answer to each of these claims, on which the case of the respondent, Sir Archibald Hope, rested. He then described the previous litigation, terminating in a former appeal, noticing each interlocutor that had from time to time been pronounced, and pressing upon the notice of the House wherein these interlocutors were inconclusive in respect to the parties, or inconsistent with each other, and deducing from the whole, the propriety of remitting the cause for the reconsideration of the Court, so as to clear it from ambiguity and doubt.”
“As an additional reason for remitting, his Lordship laid great stress on the lease of the lands of Duddingstone, which the respondent, Sir Archibald Hope, held (as the representative of Biggar,)

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“His Lordship very obviously proved, that the House could not, as the case then stood, give a judgment upon the appeal, without violating their established rule, of never deciding in the first instance, on what had not before been decided upon in any of the Courts below, without deciding upon some parts of the case which were not then in appeal from either of the interlocutors complained of, nor without sending the cause from their bar, as far at least, from an ultimate adjustment of the claims, and a satisfactory accommodation of the parties, as when they first appealed from the Court of Session; all which difficulties, he conceived their Lordships would wish to avoid:” *
It was therefore ordered and adjudged,
“That the said causes and process be remitted to the Court of Session in Scotland, with liberty to each party to reclaim and amend the process, as he shall be advised. And more particularly, to enquire and find how many, and what communications of the Duddingstone level have been made or granted, at any, and what time respectively, to any, and which of the neighbouring lands, and for how long time have been kept open and used, in fact; and for what terms respectively the same, or any of them have or must continue open of right, and in whom respectively the right of keeping open such communications are vested; at what time or times respectfully, it will or may be competent for the appellant, the Earl of Abercorn, or his heirs, to shut up the same, or any and which of them respectively; and, if it should be found that any of the said communications must be kept open for any future term, so that the said Earl of Abercorn, or his heirs, shall not be at liberty to shut the same up during such term, then, and in that case, to ascertain the value of such servitude or servitudes respectively; and for the time past to enquire and find what benefit hath been derived from the use of the level in question, in unwatering or raising of coals or otherwise, in any other lands than those of Duddingstone; and when such level passing through the lands of both the appellants, had been so used for unwatering or raising of coals, or otherwise, in any lands lying above, or to the

Footnote

* From a note written to the Edinburgh Solicitor of what passed at the hearing.

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Counsel: For Appellant, Mr. Wauchope, James Wallace, Ar. Macdonald. For Earl of Abercorn, Appellant in Cross Appeal, and Respondent in Original Appeal, Al. Wedderbun, Thos. Erskine.For Respondent, Sir Archibald Hope, Henry Dundas, J. Dunning.One point in this case, viz. “Servitude,” is reported M. 14538.