Lady Mary L. Craufurd - Shadwel - Robertson. v. J. and T. Dixon, &c. - Kea - Jas. Campbell [1826] UKHL 2_WS_354

UKHL
Lady Mary L. Craufurd - Shadwel - Robertson. v. J. and T. Dixon, &c. - Kea - Jas. Campbell
[1826] UKHL 2_WS_354
A lease of all the coals within certain lands having been granted, without any stipulation as to leaving a barrier between them and the coal of adjoining lands; and power being given to the tenants to erect engines on pits, to draw the water from the coal on any of the adjoining lands, of which the tenants might happen to be proprietors or lessees; and the tenants having worked out the whole of the coal, whereby the water in the adjoining lands descended into and drowned the coal-field so let to them; and an action having been brought after the lapse of twenty years from the termination of the lease, concluding that the tenants should be ordained to draw off the water, and erect a barrier, failing which to pay damages,—Held (affirming the judgment of the Court of Session), 1. That the tenants were not bound to leave a barrier; and, 2. That the alternative conclusion for damages did not render a remit to the Jury Court imperative.The lands of Knightswood and adjoining lands, situated in the county of Dunbarton, belonged originally to the Earl of Craufurd. The strata of coal in them extend, in a rising position, from the lands of Knightswood towards the neighbouring lands, and were formerly worked in common. In consequence of this position, it was found necessary to sink pits on Knightswood, with a view of raising the water, and so to permit the coal to be worked in an ascending direction. The adjoining lands had been sold to different parties; and, in 1769, the late Earl of Craufurd, as proprietor of those of Knightswood, let to Alexander Houston, James Dunlop, and others, “all and whole the coals, seams of coal, and coal heughs, within the said Earl his lands of Knightswood and others, lying in the parish of Kirkpatrick, and county of Dunbarton; and in consideration of the sum of £878 Sterling, paid by the lessees to the said Earl, being the total amount of the sum already expended by him in working and searching for the said coal, and erecting engines thereon, and of all other advances thereanent, and of which he hereby acknowledges the receipt,” for thirty years, from Candlemas 1770. The lessees obliged themselves to pay

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The tenants entered to possession, and worked the coal under the firm of the Knightswood Coal Company, of which John Dixon, the father of the respondents, Messrs Dixons, became a partner subsequent to the date of the lease.In 1775, an agreement, in the shape of a contract, was concluded by these parties, whereby the rent was reduced to £160, until Candlemas 1780, and then to be as before, £250, until the conclusion of the lease. It was also provided, that the lessees should have power to give up the lease at the end of 14 or 21 years, on giving six months' previous notice; and the Earl was to have the like power of resuming possession on giving the like notice, if the lessees had not paid up their full rent. In case of either of these events occurring, “The said lessees do hereby covenant and agree that when the said lease shall be given up agreeable to the terms thereof, or when the possession of said coal shall be assumed by the said Earl or his aforesaids, agreeable to the powers herein after granted to them,

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In 1778, a tack was entered into of the Knightswood coal, between the Earl of Craufurd and James Dunlop, one of the partners of the Company, proceeding on the narrative of the original lease, 1769, and the subsequent contract, 1775, and stating that James Dunlop was anxious to have the lease of the coal in his own name, after Candlemas 1784, being 14 years from the commencement of the first lease. “Therefore, the said Earl lets to James Dunlop the foresaid coal for 16 years, from Candlemas 1784 to Candlemas 1800, the expiry of the first lease, with power to work the said coal, and with the same privileges that are mentioned and contained in the said former tack.” It was further agreed, that at the expiry of this tack at the term of Candlemas 1800, the Earl should be entitled “to receive performance of the third article of the said agreement of 10th and 14th April 1775, with respect to the removal of the machinery belonging to the said coal, and the delivery of the colliers' houses, engines, and machinery therein-mentioned.” This tack contained a renewal of all the other clauses and provisions mentioned in the original tack in 1769, except the clause empowering the lessees, in the event of the main seam being wrought out, to continue the engine on the ground, if it should be in use for drawing the water from any other coalfields of which the lessees might be proprietors or tenants. Although the tack was in name of James Dunlop, it was truly for behoof of the other partners.During the currency of these leases, the Company acquired right to the coals in several of the adjoining lands, and among others of Netherton, which they worked in common with that of Knightswood. In 1800, their right to the latter coal terminated, and in that year the Earl of Craufurd granted a lease of the surface of Knightswood to Mr Houston, one of the partners, for 19 years. No new lease of the coal (which it was alleged was exhausted) was granted to any one; and Mr Houston continued to make use of an engine, which had been placed on one of the pits sunk during the currency of the lease on Knightswood, for the purpose of draining the water from the coal which the Company was working in the adjoining lands. The Earl died in 1810, and was succeeded by his sister, Lady Mary Lindsay Craufurd; and although the water was drawn off

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Lady Mary Lindsay Craufurd then raised an action against the lessees and partners of the Company, in which, after setting forth that she was proprietrix of the coal and lands of Knightswood, and that the lessees had taken possession of and worked the coal from 1770 to 1800, she stated, “That during this period, the said defenders did illegally, and to the great hurt and prejudice of the pursuer, work out the whole boundary, and march coal between the coal of Knightswood and the conterminous coal-fields to the south, and east, and north, and north-west of Knightswood, which boundary and march coal so wrought out, ought to have been left as a barrier to save the coal-field of the pursuer from being flooded by the water from the wastes of the said conterminous coal-fields: That the said defenders did also illegally, and to the great hurt and prejudice of the pursuer, work out the boundary and march coal between the said coal of Knightswood and the coal in the lands of Netherton; and which boundary and march coal should have been left as a barrier to save the pursuer's coal from being overflowed as aforesaid: That the aforesaid coal-fields and the coal in the lands of Netherton are to the rise of the coal of Knightswood: That the said defenders, who are lessees or proprietors of the said conterminous coal-fields, having wrought the coal in the said fields, the water coming from the said coal-fields did of consequence discharge itself into the waste of Knightswood, which was wholly exposed to said water by the illegal operations of the defenders, in working out the boundary and march coal, which ought to have been left as a barrier aforesaid. That in consequence of the said waste of Knightswood being thus overflowed with, water, the pursuer is prevented from working the remaining large and valuable seams of coal lying in her said lands of Knightswood.” Upon this medium, the summons concluded against the defenders, “Either to relieve the pursuer's coal of the said water, and that by drawing the accumulated water which has been introduced, and making a barrier in place of that which has been removed by the defenders as aforesaid; and besides, to pay all the costs, skaith, and damages which have already been occasioned by the said illegal workings; and failing the said defenders so relieving

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In defence, the defenders referred to the terms of their leases, and maintained that they were entitled to work, dig, carry off, and apply to their own use, all the coal in the lands of Knightswood, without exception; that, as the power of constant inspection was reserved to the landlord, it must be presumed that he exercised that power, and acquiesced in, or homolgated, the proceedings of his tenants; that, from the terms of the lease, it was plain that the landlord consented that the water in the neighbouring coal-fields should be allowed to communicate with the workings at Knightswood; that, in point of fact, such a communication did exist antecedent to the date of the lease, or at least prior to the date at which any of the defenders, or those whom any of them represented, were connected with Knightswood.The Lord Ordinary appointed the pursuer to give in a condescendence of all the facts and circumstances she alleged and offered to prove in support of her libel, and to state the periods of the alleged encroachments; and therewith to produce all the writings upon which she meant to found; and directed parties to be heard on the relevancy and legal effect of the different facts stated in their pleadings.Thereafter, his Lordship remitted, before answer, to “Robert Bald, civil engineer and coal viewer, to visit and inspect the subjects in question, and to report his opinion:—Imo, What is the usual barrier left betwixt adjoining coal works belonging to different proprietors, so as to prevent a communication betwixt them? And whether, by inspection or otherwise, he can ascertain if any barrier was left betwixt Knightswood and the adjoining coal-field? And if so, of what thickness or extent the barrier was?—2do, Whether the coal at Knightswood, or the seams of coal that run through Knightswood, and are now wrought in the adjoining properties, are of so porous a nature, that if a barrier had been left, it would have been insufficient to prevent the communication of the water?—3tio, If the lease of the works in question gave a right of communicating the levels from Knightswood to the adjoining fields of coal possessed and wrought by the tenants of Knightswood, whether

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This remit was objected to by Lady Mary Craufurd, who stated, that as the coal was entirely drained, Mr Bald could only report from the information of others, but she did not complain of it either by representation or petition, and she attended Mr Bald by her agent. After making an investigation, he reported on the different points remitted to him by the Lord Ordinary, and, in particular, that the march consisted, in the part above the main coal, of a porous sand-stone; and, “with regard to the usual barrier of coal left betwixt adjoining coal-works belonging to different proprietors, so as to prevent a communication betwixt them, he stated, that there is no rule I know of for regulating the thickness of such barriers, or for leaving any barriers whatever along marches. If barriers are to be left, it is the common practice to stipulate in the lease what is the least thickness these barriers must be, and unless the quality and texture of the coals are known, it is not possible to decide what thickness of barriers will be sufficient, as some barriers only three or four fathoms in thickness will prevent water passing through, owing to the closeness of the coal in its texture; while, on the other hand, a coal very open and full of fissures, will not keep back water, even though the barriers were 100 fathoms thick; besides the transit of the water through the barrier will be

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Lord Hermand .—The object of Lady Mary seems to be to quash the whole proceedings that have been formerly had, and to get the case sent to a Jury. But I am of opinion this wont do. There is enough already in this case to enable us to decide it. She says, this is a pure action of damages. It is no such thing. It depends upon points of law; and I agree with the observations in the answers, that there is no question of fact for a Jury to decide here. The whole coals were let to the tenants; and the conclusion of the action is for replacing that barrier which has been removed in working that coal. But that is not a question of fact. It is a question as to the interpretation of a lease or leases, which do not say a word about barriers, or restrict the tenants from working any part of the coals. Besides, the lease expressly reserved a power to the proprietor to watch the proceedings of the tenants, and to superintend the working of the coal; and by the report of the inspector the parties were to be regulated. She might have done so herself, or she might have sent down an engineer for that purpose. But she did not do either; and it is now too late to complain. This property was surrounded with coal on all sides, and I see no reservation in the lease of any barriers.

Lord Succoth .—I am clearly of the same opinion. There does

Footnote

* See 2 Shaw and Dunlop, No. 631.

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Lord Balgray .—There is no doubt that Mr Bald had ample means of reporting on various circumstances of importance; but I have some doubts whether a tenant is not bound at common law to leave a barrier. In the circumstances of this case, however, it seems to have been understood that no barrier was to be left, because the water from the pits of the conterminous proprietors was to be drawn out by means of the engine on Lady Mary's pit.Lord President .—Mr Bald's report is quite satisfactory, and much more so than a proof before a Jury. Indeed, I don't see how any one could have charged a Jury on the subject without his aid.Lord Gillies .—I am of the same opinion.Lady Mary appealed.Appellant .—It is necessarily implied in the nature of location, that the tenant is to use the subject according to the rules of good management, and not deprive the landlord, after the expiry of the tack, of the means of using the subject located, advantageously and profitably. And nowhere is the most strict adherence to these rules so requisite as in coal-works. The respondents were bound to have left a sufficient barrier to have protected the pits from being flooded by the water descending from the conterminous mines. The appellant's charges are explicit and relevant in law to found a claim of damages. Nothing short of the lapse of the long prescription could cut off her claim. The moment the discovery of the respondents' illegal workings and encroachments was made, the suit was instituted. Both conclusions of her action involve a claim of damages for injury done to lands; and therefore, by the Jury Court Act, the Court of Session were bound to have remitted it to a Jury. Mr Bald's report was founded on hearsay; and the pretended facts on which it proceeded, were given by witnesses neither examined on oath, nor cross-examined; and the appellant offers before a Jury to prove the report to be utterly erroneous, and the conclusions in her action well founded.Respondents .—The works were all along patent to the landlord. The late Earl lived until 1810, and no complaint having been made, it is now too late to seek damages. The appellant is barred by homologation and personal objection. The lease gave the lessees power and liberty of working and winning all the coals within the boundary of the lands; and neither by law nor in practice is a lessee bound, without an express stipulation

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The House of Lords ordered and adjudged, that the interlocutors complained of be affirmed, but without costs.Lord Gifford .—My Lords, there is another case which has been under your Lordships' consideration, in which Lady Mary Lindsay Craufurd is the appellant, and Jacob Dixon and a great many other persons are the respondents. It is an appeal from a judgment of the Court of Session, in an action brought by Lady Mary Lindsay against the several respondents, by which she sought to have it declared that the respondents, who are the lessees of a coal-work, in which the late Earl of Craufurd was interested, and which now belongs to her, called Knightswood, should be compelled either to relieve the pursuer's coal of water, by draining the accumulated water which had been introduced, and make a barrier in place of that which had been removed by the respondents; and, besides, to pay all the costs, skaith, and damage, which had been occasioned by the illegal workings; and failing to do so, that they should be decerned and or dained by decree to make payment to the pursuer of a very large sum of money,—£28,000 being the estimated value of the coal, in the name of damages, for the injury and loss sustained by the pursuer.It appears that the lease, or rather leases, (for there were two or three, under which this coal was worked,) were granted so long ago as the year 1775; and that they terminated so long ago as the year 1800—nearly twenty years before the commencement of this action. This action was commenced by Lady Mary Lindsay Craufurd in the year 1820. She then complained against the successors of this company (for most of them were dead), contending, that at the time they had the possession of her coals in Knightswood—the coal belonging to her ancestors—they had worked their coal, and, at the expiration of their lease, did not leave a barrier to save her coal-field from being flooded by the water from the waste of the conterminous coal-works; and that by reason of such a barrier not being left, (which, she says, it was their duty to have left,) the water flowed in upon her remaining coal; and in consequence of this, her remaining coal has been completely drowned, and that she sustained a

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My Lords,on this matter coming before the Lord Ordinary,—Lord Alloway,—he directed the pursuer to give in a condescendence, framed in terms of the act of sederunt, of all the facts and circumstances she alleged and offered to prove in support of her libel—to state the periods of the alleged encroachments,—and to produce all the writings upon which she meant to found; and then he pronounced an interlocutor, appointing the cause to be enrolled, and parties to be heard upon the relevancy and legal effect of the different facts stated in the papers.The Lord Ordinary having afterwards resumed consideration of the condescendence and answers, revised condescendence and answers, and the whole process and productions, before answer, remitted to Mr Robert Bald, civil engineer and coal-viewer, to visit and inspect the subjects in question, and to report his opinion.I do not perceive that any representation was made by Lady Mary Craufurd against this remit to Mr Bald; but on the 20th December 1821, there is another interlocutor:
“The Lord Ordinary having called the cause, heard the counsel for the parties, and considered what is stated in a letter from the pursuer, Lady Mary Lindsay Craufurd, which letter is put into process, allows each party, if so inclined, to have a coal-viewer or other scientific person in attendance, at the inspection to be made by Mr Bald.”
She wished to have Mr Bald attended by a coal-viewer, for the purpose of assisting him in the inspection of those works; and that each party should be allowed to nominate one.

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My Lords,it appears that Mr Bald made a very elaborate report, the substance of his report being in favour of the respondents; but Lady Mary Craufurd insisted that no attention should be paid to it, and that, under the circumstances, she was entitled to have the cause remitted to the Jury Court; and that this being in the nature of an action for damages, it should go to the Jury Court, in order to have the facts ascertained.Upon that occasion, the Lord Ordinary pronounced the following interlocutor:—(His Lordship then recapitulated the interlocutors of the Lord Ordinary and the procedure in the Inner House.)My Lords,on looking at the opinions which the Judges pronounced upon the second occasion, it appears, that on considering the original tack, the nature of the engagements entered into in that tack, the nature of the property leased, and the power given by the lessees, they seem to have thought, that looking at the lease itself, they ought to have assoilzied the respondents from this claim. It appears, however, as I have stated to your Lordships, that a remit had been made by the Lord Ordinary to Mr Bald, upon which the report that I have referred your Lordships to had been made by him; and on that proceeded the judgment of the Court of Session originally.It does appear to me, certainly, that it is extremely important, considering the nature of this action, and the nature of the present claim, to call the attention of your Lordships to the tack itself. The first tack is so long ago as the year 1769; and by that my Lord Craufurd let to those parties “all and whole the coals, seams of coal, and coal-heughs, within the said Earl his lands of Knightswood, and others lying in the parish of Kil-patrick and county of Dunbarton; and in consideration of the sum of £878 Sterling, paid by the lessees to the said Earl, being the total amount of the sums already expended by him in working and searching for the said coal, and directing engines thereon, and of all other advances thereanent; of which he thereby acknowledges the receipt”— that is, a lease for thirty years, which would expire at Candlemas 1800. And then there is a condition on the part of the lessees, “that they will work the said coal, and all the parts thereof, in a regular, orderly, and workmanlike manner; and the said work shall be patent, and subject to be visited at all times proper by the said Earl, or any other person to be appointed by him for that effect.” Your Lordships perceive, therefore, that this was a lease of all the coals within those lands of Knightswood. It gave, therefore, a right to the tacksmen to work out the whole of the coal. My Lords, if it had been intended on the part of the Earl of Craufurd that a portion of that coal should not be touched, and that it should be left as a barrier, it was perfectly competent for him, at the time this tack was executed, to have inserted a stipulation to that effect in the tack. Your Lordships find, however, that the only stipulation is, that they should work the coal in “a regular, orderly, and workman-like manner.” Now, my Lords, in this case, Lady Mary Lindsay Craufurd does not proceed in her action on any supposed stipulation in that

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The lease expired in 1800, and till this claim set up by Lady Mary Craufurd, there has been no complaint of the manner of working, or of any conduct on the part of these lessees. I do not say that period of time is sufficient of itself to preclude Lady Mary Craufurd from sustaining the action; but it is a question, whether she can maintain the action under the terms of this lease, if she stood by, and saw how they were working this coal, and did not make complaint, and did not call on them to leave this barrier. It is a very strong thing to say, that, under those circumstances, Lady Mary Craufurd, at the end of nineteen years, shall be permitted to call upon them; and let it be recollected, that the action is to compel them to reinstate this barrier, which, according to her summons, she contends it was their duty to have left; and therefore, unless she can make out that, they were bound to do so, I apprehend she cannot maintain this action. Her allegation is, that this Knightswood Coal Company having made this mine, “did also illegally, and to the great hurt, and prejudice of the pursuer, work out the boundary and march coal between the coal of Knightswood and the coal in the lands of Netherton, and which boundary and march-coal should have been left as a barrier to save the pursuer's coal from being over-flooded.” Now, in the first place, as I have stated, all the coal was to be, permitted to be worked; and it would be flying in the face of that instrument to say, that the law implies an exception which does not appear from the face of the

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For Lady Mary Craufurd it is contended, that this was an action for damages, and that, therefore, it was compulsory on the Court of Session to have sent it to the Jury Court. I am not disposed to concur in that view of the case; for it is not simply an action for damages; it is an action for damages in one alternative; but the main object of the action is not for damages, but that the lessees shall actually draw off the water, which has been introduced in consequence of their not keeping the barrier; that they shall relieve the pursuer's coal of the water by drawing off the accumulation of water which has been introduced, and by making a barrier in the place of that which has been removed; and then the pursuer goes on to say, that, if they do not relieve her in that respect, they ought to be mulcted in damages. But her leading requisition in the summons is, that they shall relieve her land from the water, and make this barrier. The Court of Session, therefore, thought that the act of Parliament, applying to a claim for damages only, did not apply to this case, and that the case ought not to be sent to a Jury. It appears, that to the interlocutor referring the matter to Mr Bald, as I have already stated, no complaint was made on behalf of Lady Mary Craufurd, except that she wished to have a person there to assist in the inspection. She made no complaint by a reclaiming petition to the Court of that appointment.Upon the whole, it does appear to me, that this is not a case in which the pursuer could, in that stage of the cause, compel the Court of Session to transfer this case to the Jury Court. Then the question is, upon the fair construction of this lease, and the conduct of the parties, whether Lady Mary Craufurd had a right of action in this case. Now, I shall read to your Lordships the opinions of some of the learned Judges upon this case when it was last before them.—(His Lordship then read the opinions of Lords Hermand and Succoth.)My Lords,upon the fullest consideration I have been able to give to this case, conceiving as I do that the lease conveyed to the lessees a power of working the whole of this coal—and in construing the whole obligations of the party, you must look at the whole of the stipulations of the lease;—perceiving, also, that, in that very lease, an express power is given to make communications between these and the adjacent mines, it does appear to me impossible to contend that you shall imply an obligation on the part of the tenant, contrary to the express stipulations of the lease, by which he shall be bound to leave barriers round this mine. Because, if Lady Mary Craufurd's construction be right, they could not have worked any of the coal, if it was necessary that coal should be left as a barrier; but they must have been restricted in the enjoyment of

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My Lords,I do not enter into topics of hardship which have been urged in this case. These respondents, it appears, were united in a concern in which they represented a great variety of persons. Your Lordships, I know, cannot entertain questions of that sort; but after such a lapse of time as has occurred, from the year 1800 to 1819, when this action is commenced, I think it was incumbent on the Court below to watch with some jealousy the nature of such an action. Had it been brought much earlier, Lady Mary Craufurd would not, in my opinion, have been able to establish any case, considering the terms of this lease. In the fair construction of the stipulations entered into by those parties in this case, I am of opinion that there is no ground for saying that the Court can imply, or that your Lordships can imply, an exception of any coal to make a barrier; and particularly when there was a power given to the tenants to make a communication between this coal in Knightswood and the conterminous coal-works.Though it is not always usual to go into so much detail, in cases where the individual who addresses your Lordships means to move to affirm the

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Appellant's Authorities .—3 Ersk. 2. 16.—Lord Wemyss, Feb. 2, 1800. (F. C.)— 4 Ersk. 1. 14—29. 12.—2 Stair, 7. 10.—59. Geo. III. c. 35. Respondents' Authorities .—Williamson, Aug. 4, 1761. (10459.) Dict. vol. I. 378— Ayton, May 19, 1801. (App. No. 6. Property.)—Kinnoul, Jan. 18, 1814. (F. C.)— Bayne, Dow's Reports, III, 233.

Solicitors: J. Chalmer—Spottiswoode and Robertson, Solicitors