Sir Robert Anstruther of Balkaskie, Bart. v. Sir John Anstruther of Anstruther, Bart. [1796] UKHL 3_Paton_483

UKHL
Sir Robert Anstruther of Balkaskie, Bart. v. Sir John Anstruther of Anstruther, Bart.
[1796] UKHL 3_Paton_483 · 1796-05-18
The respondent was proprietor of the barony of Pittenweem, which included the burgh of Pittenweem, and certain lands called Acredale lands, which had been feued out in small rigs or stripes long before he acquired right to the barony. This right included an express conveyance of the whole coal within the barony. He was also superior of the whole . Part of those lands, called the Acredale lands, belonged to the appellant. In these Acredale feus, the coal was either excepted, or the right was silent altogether on the subject. Among those, the appellant's right was silent. There was no conveyance of coal to him, and no reservation of it; but he contended that the conveyance of land carries the coal as a pertinent, and that the coal was mentioned as a pertinent in the tenendas of his right. When, therefore, the respondent proceeded to work the Acredale lands for coal, the appellant suspended, and the present declarator was then brought: Held by the Court of Session, and affirmed by the House of Lords, that the respondent had the sole right to the whole coal in the Acredale lands.

The respondent, proprietor of the estate of Newark, in

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The barony, which includes the burgh of Pittenweem, had originally belonged to the Priory of Pittenweem; and, in anticipation of the abolition of the religious houses, the monastery had, before the Reformation, feued out their lands. Round the town, where the priory was situated, small feus had been granted to the town's people, generally in rigs or small stripes. These feus were called the Acredale lands, and, in granting them, the monastery either excepted the coal expressly, or the conveyance was silent on the subject altogether. Part of these Acredale lands were afterwards purchased by the appellant, but the greater part by the respondent; and the respondent, by his purchase of the barony of Pittenweem, in which these Acredale lands are situated, became superior of the whole.After his purchase of the barony of Pittenweem from the Earl of Kelly, he proceeded to work the coal in these lands. He sunk various pits in the properties of the different feuers, without meeting with opposition from any quarter, until having laid a pipe crossing, amongst other rigs of the Acredale lands, those belonging to the appellant, the latter brought a suspension, which compelled the respondent to bring the present declarator of his right to the coal of all these lands.Craig, p. 256, § 17.The general defence of the appellant was, that not only his lands, but all these lands were conveyed, as is shown by the title-deeds, without any reservation of the coal. On the contrary, that though the coal was not expressly conveyed, yet it was mentioned as a pertinent in the clause of tenendas in his right; and it is settled law, that a conveyance

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The appellant produced a charter, under the great seal, passed in the year 1698, in favour of his grandfather, of all the estates which belonged to him, and amongst others, the small detached parcels of land in the Acredale of Pittenweem in question, which, the charter shows, had been originally separate feus from the barony, and describes it as lying within the lordship. In the dispositive and descriptive part of this

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Feb. 18, 1792.

Mar. 9, —

“The Lords having advised the mutual informations, writs, and proof produced, and heard parties' procurators thereon, they find the pursuer, Sir John Anstruther (respondent), has the sole right to the whole coal and limestone in the Acredale lands, within the lordship and barony of Pittenweem; and, therefore, in the suspension, find the letters orderly proceeded, and in the declarator, decern.” On reclaiming petition, the Court adhered.
Against these interlocutors the present appeal was brought.Pleaded for the Appellant .—As the right to coal and lime passes with the lands, unless specially reserved in the conveyance of the lands, and as there is no such reservation in the title deeds of the appellant, he has a clear right to all below the surface of his land. And a party so infeft, without any mention of coal, has a preferable right to the coal, to one who is afterwards seised in the coal, per expressum ; and the appellant having been infeft under his unreserved and unlimited title long prior to the respondent, has consequently a title to exclude him therefrom.Pleaded for the Respondent .—The appellant has not produced the vestige of a title to the coal in question. He does not pretend he ever worked any coal, or that his ancestors did so. The maxim he founds on, that coal passes by a grant of land generally as a pertinent, and that possession of the surface is possession what is below it, are incontrovertibly true, provided there is no right to coal vested in another, and no actual adverse possession by that other. But to set up a grant of lands simply with possession of the surface, but not of the coal, against a grant of the same lands with the coal joined to possession, was quite untenable. The respondent has an express grant of the whole coal of the barony. The charters to Lord Pittenweem in 1609, and

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After hearing counsel, it was

Ordered and adjudged that the interlocutors be affirmed.Counsel: For Appellant, Sir J. Scott, R. Dundas, Alex. Anstruther. For Respondent, J. Anstruther, W. Adam.