R. Menzies, W. S. - Warre - Cler - Irving v. John Earl of Breadalbane and Holland - Jardin - Davidso - Evans [1822] UKHL 1_Shaw_225

UKHL
R. Menzies, W. S. - Warre - Cler - Irving v. John Earl of Breadalbane and Holland - Jardin - Davidso - Evans
[1822] UKHL 1_Shaw_225
Held, (affirming the judgment of the Court of Session,) that a clause by which a superior reserved in a feu-contract right to the mines and minerals, did not give him right to a quarry of freestone situated within the lands.In the year 1699, King William III., by a charter under the Great Seal, granted to John Marquis of Atholl, (proprietor of extensive estates in Perthshire,) and his son in fee, “omnes et singulas auri fodinas, argentarium metallum, seu fodinas argenti, molybdinam, seu fodinas plumbi, fodinas stanni, fodinas cupri, et alia mineralia, colores et metalla quæcunque, de quibuscunque naturâ, generibus, vel qualitate eadem sunt, hactenus inventa, vel quæ ullo tempore in posterum infra totas bondas dict. terrarum et comitatûs de Atholl comprehenden. ut in infeofamentis earundem, jacen. infra vicecomitatum de Perth, et infra bondas omnium aliarum terrarum, dominiorum, baroniarum, aliorumque, sub quâcunque designatione eadem sunt, ad eos pertinen. et spectan., tam in superioritate quam in proprietate, ubicunque eadem jacent. infra dictum regnum invent. erunt, cum omni jure, titulo, et interesse quibuscunque quæ nos vel nostri successores habemus, vel alio modo habere, clamare, vel ad easdem, vel ad aliquam partem seu portionem earundem, ullo modo pretendere poterimus; cum plena potestate prænominato Joanni Marchione de Atholl, et dicto suo filio, ejusque antedictis, lucrare, operare, scrutare, et adinvenire praedict. fodinas, mineralia, colores, et metalla infra aliquam seu quamlibet partem terrarum generaliter et particulariter

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Thereafter, in 1707, the Marquis—now Duke of Atholl—feued the lands of Bolfracks (forming part of the estate of Atholl) to Alexander Menzies by a feu-contract in which there was this reservation:
“Reserving always to the said John Duke of Atholl the haill mines and minerals that may be found within the bounds of the said lands of Bolfracks, of whatsoever nature or quality, with the liberty of digging, winning, and away leading the same; but with this provision, that the said John Duke of Atholl and his foresaids be obliged to satisfy the feuars and possessors of the said lands for the time for what damage shall happen through breaking of the ground, and making ways through the lands in searching for, winning, and away leading the said mines and minerals.”
In these lands there was a quarry of freestone which had been discovered in 1723, and which, it was alleged, was of a singular and uncommon nature, being admirably suited for ornamental architecture, and highly valuable from the circumstance, that this quality is not possessed by any other stone in that district of the country.The right to the superiority, and to the above reservation, was subsequently acquired by the appellant Mr. Menzies, and the lands were purchased by the respondent, the Earl of Breadalbane. The Earl having commenced to build a mansion-house at Taymouth, and having claimed the exclusive right to this quarry, from which

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In defence against this action the Earl maintained, That the clause of reservation by the superior was merely intended to include those mines and minerals that had been conveyed by the charter of 1699, which was confined to metals, and had no reference to stones, or any similar substances: that the term “mineral” did not embrace stones, and such a construction would have the absurd effect of entitling the superior to every stone on the property.By Mr. Menzies it was answered, That the object of the charter was merely to convey the mines and metals which belonged to the Sovereign jure coronæ; and as the Marquis of Atholl was (independently of that charter) proprietor of all the other minerals within the lands, he had full power to reserve to himself the stones, &c. within them:—that the words in the reservation comprehended every substance of the nature of the stone in question, although only used for the purpose of building; and that he did not pretend that he had right to every stone within the lands, but only to those of a valuable nature.The Lord Ordinary found, “That the reservation contained in the original feu-charter of the lands of Bolfracks in 1707 to Alexander Menzies, “of the haill mines and minerals that may be found within the bounds of the said lands of Bolfracks, of whatsoever nature and quality, with the liberty of digging, winning, and away leading the same,” being expressed in the broad and comprehensive terms above recited, without any exception under which the quarry in question might have been understood to have been included, and with the single provision that the superior should satisfy the feuar or possessors for the surface damages occasioned in searching for, winning, or leading away the mines and minerals, must be held to have comprehended the quarry or mine in question, with the stone thereof, and the liberty of digging, winning, and away leading the same, on paying surface damages; and on these grounds decerned in terms of the declaratory conclusions of the libel, and appointed the pursuer to state in a condescendence the amount of the damages claimed by him.”Against this interlocutor the Earl of Breadalbane having reclaimed, the Court altered, sustained the defences, and

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Mr. Menzies having appealed, the House of Lords “ordered and adjudged, that the interlocutors complained of be affirmed.”Lord Chancellor .—My Lords, there is a cause of Menzies and the Earl of Breadalbane, which involves the question as want was meant by a reservation of all mines and minerals of whatsoever nature or quality; and the question is, Whether, under the words “mines and minerals,” there is included a reservation of quarries of stone? That reservation is not contained in a lease, but in a feu; and I take it, there is a very great difference as to the principles that are to be applied to the construction of a feu and a lease—it is a question of a very different nature. In the case of a lease, the object is to give the benefit of the enjoyment of the surface to the lessee. Unless you reserve specially, every thing is supposed to be let that can be actually enjoyed,—every thing that the lessor or lessee can enjoy; but, taking it that the lessee cannot work the mines, minerals, stone quarries, and so on,—which he cannot do, for that would be accounted waste,—still, if a power to work them is not reserved in the lease, the lessor cannot enter and enjoy without the lessee's permission: that is the principle we act upon. On the other hand, in the case of a feu, every thing is given that is not specially reserved. It does appear to me to be the better opinion, that mines and minerals in this feu did not mean stone quarries, and that the opinion of the majority of the Judges is therefore right; the consequence of which will be, that the judgment should be affirmed.Solicitors: Spottiswoode and Robertson,— J. Chalmer,—Solicitors.

( Ap. Ca. No . 31.)

Footnote

* See Fac. Coll. 10th June 1818, No. 169, where it is said, that “upon advising a reclaiming petition for the defender, with answers, three of the Judges were of opinion that the stone in question was not such a substance as fell within the reservation; the remaining Judge was of opinion that the terms of the reservation were so broad as to comprehend it. Upon advising a reclaiming petition for the pursuer, with answers, four of the Judges thought the interlocutor of the Court right; the remaining Judge still doubted of it.”