Scottish Court of Session Decisions

This was an action at the instance of the pursuers, as proprietors of the lands of Trees, against the defenders, for payment of certain lordships said to be due by them as tenants of the minerals in the said lands. Under the lease between the parties, the landlord had the option of a fixed rent of £200 per annum, payable half yearly, or of certain lordships on the minerals which should be raised and carried off by the tenants. It was further provided by the lease that, in the event of strikes of the workmen, or other unforeseen occurrences, preventing the tenants from raising minerals under the lease to the extent of the fixed rent, they should notwithstanding thereof be bound to pay the fixed rent, but should be entitled, during the succeeding years of the lease, to work minerals from said property to the extent of such deficiency free of lordship. It was not disputed that the lordships claimed by the pursuers were the lordships arising on the disposals during the periods to which these referred, but the defenders maintained that they were entitled to apply these lordships, in so far as they exceeded the fixed rent, in making up a deficiency in certain previous half-years, when they were obliged to pay the fixed rent although the lordships were considerably less. These deficiencies, they averred, arose chiefly through the railway company unexpectedly failing to send the necessary waggons for conveyance of the minerals. The pursuers, on the other hand, contended that the defenders were only entitled to the drawback in the single case where the deficiency in the disposal arose from inability on their part to work the minerals and as that was not the cause of deficiency averred by the defenders they were not entitled to the drawback claimed by them.

The heads of the agreement on which the discussion mainly turned were as follows:—“The tenants hereby agree to pay the sum of two hundred pounds sterling annually of fixed rent for the minerals in the said lands, or, in the option of the proprietor, to pay the following lordships for the ironstone, coal, and other minerals, which shall be raised and carried off by them from said lands during the foresaid space of twelve years, viz., on blackband ironstone, after being calcined and cleaned of dross, three shillings sterling for every quantity of twenty two and one-half hundredweight, imperial weight, so raised and carried off; on clay ironstone and iron ore, calcined and cleaned as aforesaid, one shilling and sixpence sterling for every quantity of the same weight, or, in the tenant's option, nine-pence on the raw state; on all gas or parrot coal, three shillings sterling for every twenty-two and one-half hundred-weight as aforesaid; on all other coal separated from dross by a screen or riddle, one and one-half inch in the meshes, sixpence for every twenty-two and one-half hundredweight; on coal dross, passing through said riddle or screen, one penny for ever twenty-two and one-half hundred-weight; but no lordship shall be chargeable on such dross as may be necessarily used by the tenants in working the minerals, or in calcining the limestone or ironstone, nor for such coals as may be used for the engines, pithead fires, or in ventilating the mines; on each quantity of twenty-two and one-half hundredweight of limestone in the raw state, fourpence; and on the same weight of fireclay in the like state, threepence sterling.” “In the event of strikes of the workmen or other unforeseen occurrence, preventing the tenants from raising minerals under the lease to the extent of the fixed rent aforesaid, they shall, notwithstanding thereof, be bound to pay said fixed rent; but shall be entitled, during the succeeding years of the lease, to work minerals from said property to the extent of such deficiency free of lordship.”

The Lord Ordinary ( Jerviswoode) allowed a proof before answer, and thereafter pronounced the following interlocutor:—

“Edinburgh, 24th November 1869.—The Lord Ordinary having heard counsel on the proof led, made avizandum with the debate and whole process, and considered the same,—Finds as matter of fact that the balance of the amount of the lordship on the minerals which was, in the option of the proprietor, stipulated for under the minute of agreement of lease between the deceased William Shaw of Trees, under whose deed of settlement the pursuers are trustees, and the company or firm of James Russel & Son, so far as respects the sums calculated on the quantities of the said minerals which were raised and also carried off by the defenders from the lands of Trees before the expiry of the said lease at Candlemas 1869, is correctly stated in the note No. 17 of process; but finds that a considerable quantity of the minerals which were raised from the said lands remained on or near the same, in the possession of the defenders, but not carried off therefrom, at the said date of expiry of the lease: And, further, finds as matter of law that

Page: 223↓

the pursuers have failed to establish grounds sufficient to warrant them in insisting in the conclusions of the action for payment of the whole sums of lordship arising from the minerals raised and carried off by the defenders in excess of the fixed rent paid by them for the several half years from Lammas 1867 to Candlemas 1869 inclusive, and that the pursuers are only entitled to the admitted balance of lordship for the period from Candlemas 1866 to Candlemas 1869 inclusive, as set forth in No. 11 of the statement of facts for the defenders, and amounting, said balance, to the sum of £141, 0s. 2d., with interest thereon at five per cent, from said term of Candlemas 1869 to 5th May 1869, when the defenders offered payment thereof, and with bank interest thereon since the last-mentioned date; and decerns for the said principal sum of £141, 0s. 2d., and interest thereon accordingly: Quoad ultra, and with reference to the preceding findings, dismisses the action, and decerns: Finds the defenders entitled to their expenses, of which allows an account to be lodged, and remits the same to the auditor to tax and to report.

“ Note.—The Lord Ordinary thought it right to allow proof here; and although it is to be regretted that considerable expense must in consequence have been incurred by the parties, he cannot say that he regrets the step taken, so far as regards his own apprehension of the facts of the case, on which, as he thinks, the proof adduced has thrown light.

Referring to the 19th head of the minute of agreement of lease, being the clause founded on by the defenders as entitling them to set off against the excess of lordship for the four half-years from Lammas 1867 to Candlemas 1869 inclusive, the deficiency of lordship below the fixed rent paid in the previous half-years from Candlemas 1866 inclusive, there is no doubt that the clause in express words provides only for the protection of the tenants in case of their being, from certain ‘unforeseen occurrences,’ prevented from ‘raising’ minerals to the extent of the fixed rent; but as the lordships were by the agreement (head 8th) to be payable, not on the minerals raised, but on those which should be ‘ raised and carried off’ by the tenants, and as they appear to have settled with Mr Shaw, the proprietor, upon that footing previous to his death, the Lord Ordinary thinks that a fair interpretation of the 19th clause must include the carrying off as well as the raising of the minerals.”

The pursuers reclaimed.

Lord Advocate, Pattison, and Strachan for them.

Solicitor-General and Gloag in answer.

At advising—