Earl of Wemyss v. Sir Archibald Hope [1796] UKHL 3_Paton_487

UKHL
Earl of Wemyss v. Sir Archibald Hope
[1796] UKHL 3_Paton_487
Held, by the terms of a lease of coal to a tenant, allowing him to work the coal within the barony of Woolmet, excepting that part of the coal which lies within the parks, gardens, and enclosures of Woolmet belonging to the appellant, that this exception or reservation did not entitle the appellant to sink pits and work coal within these grounds; but was to be construed only as a clause to preserve his grounds from suffering injury by the general working of the coal by the respondent. This question having been so disposed of in the Court of Session, and an appeal taken to the House of Lords, but never moved in, and finally dismissed ten years previous to the present appeal: Held, that these proceedings did not constitute a res judicata in bar of the present action.A lease of the coal of Woolmet was granted by the Magistrates of Edinburgh to John Biggar. The appellant is now in right of the Magistrates, and the respondent in right of Biggar. The renewal of the lease to the respondent contained a clause, in the exact same words as the original lease to Biggar, viz.:—
“All and haill the coal that is within the lands and barony of Woolmet and Hill, excepting always the coal lying within the parks, gardens, and inclosures of the said lands and barony of Woolmet , unless the consent of the said Earl of Wemyss be first had and obtained thereto.”
The appellant conceiving, under the meaning and construction of, the above clause, he had a right to work the coal within those grounds excepted and reserved, proceeded to sink a pit for this purpose, when the respondent applied

Page: 488 ↓

The Lord Ordinary remitted to men of skill, who reported that “the sinking of this pit would have the effect of communicating an additional quantity of water to Sir Archibald Hope's engine from the surface of the earth, and from cutting through the various strata of metals between the surface of the coal.” And upon this report, and also upon the construction of the lease, the Court held that the appellant was not entitled to put down pits within the parks and gardens of Woolmet. An appeal was taken to the House of Lords, but never moved, and in consequence dismissed. When, ten years afterwards, the appellant again raised the question in the present declarator.Dec. 11, 1792.Feb. 12,1793.

The Lord Ordinary, of this date, pronounced this interlocutor:—

of the main coal of the barony of Woolmet, confessedly set to them without any imposition or restrictions, and which appears to have been the ground upon which the Court proceeded when they granted the interdict which has been pled in bar of the declarator; and, therefore, on these grounds, assoilzies the defender.”
“Repels the preliminary objection of a res judicata in this case: And upon the merits of this cause, after giving what the Ordinary thinks a fair and rational construction to the original lease in 1723, by the town of Edinburgh to John Biggar, his heirs and assignees, and in particular to the excepting clause in that lease, which gives rise to the present question: Finds, that as by this exception, the tenant was on the one side excluded from working the coal, within the excepted grounds without the consent of the master, so, on the other hand, it neither was nor could be the understanding of parties, that the master was to be left at liberty, during the currency of the lease, without the consent of the tenant, to work those coals either by himself or others, at discretion, which might be attended with very prejudicial or ruinous consequences to Mr. Biggar, or his successors, in the after-working

Page: 489 ↓

On reclaimining petition, the Court adhered.Against these interlocutors the present appeal was brought.Pleaded for the Appellant .— As the lease contains a clause of “All and haill the coal that is within the lands and barony of Woolmet and Hill, excepting always the coal lying within the parks, garden, and inclosures of the barony of Woolmet, unless the consent of the said Earl of Wemyss be first had and obtained thereto,” this amounts to an absolute and unqualified reservation of the coal in question, and the appellant, as proprietor thereof, was entitled to work the same. And it is no answer to this to say, that the purpose for which this reservation was inserted was quite different from giving the landlord a right to work the coal, because the reservation, as explicitly expressed, is general and sufficient not only to comprehend this purpose, but all other lawful purposes. The respondent admits that he has no title to work the reserved coal himself. It is equally clear that such a reservation, in a lease, must always have in view a right to work on the part of the landlord, especially where there is nothing mentioned expressly to exclude this; And what the respondent aims at is to obtain a monopoly of his coal to the exclusion of the landlord's right.Pleaded for the Respondent. — The original purpose of reserving the coal was to give the proprietor a surety that his parks and inclosures of Woolmet would not be damaged from working; but it is quite clear from the meaning of the lease, that the whole coal of Woolmet was given in lease to the respondent, except the right of working that part of it under the parks and gardens of Woolmet, without the proprietor's consent. This last clause, “unless with the proprietor's consent,” showed that the whole coal was let, and it would, in these circumstances, be extraordinary, and not consistent with the true bona fides of the transaction, to see both the proprietor and lessee working the same coal; or after a lease to a tenant, for the landlord to work the coal as here intended, to the great injury and probable destruction of the tenant's right. Such was never the intention by the original lease, nor by the renewal of it to the respondent.

Page: 490 ↓

After hearing counsel, it was

Ordered and adjudged that the interlocutors be affirmed, with £100 costs.Counsel: For Appellant, Sir John Scott, Wm. Tait. For Respondent, R. Dundas, W. Grant, Wm Dundas.Note .—Unreported in Court of Session.