Scottish Court of Session Decisions

This was an action at the instance of James Blair of Glenfoot, Clackmannanshire, against Robert Balfour Wardlaw Ramsay of Whitehill and Tillicoultry, and the Alloa Coal Company in the following circumstances:—

The pursuer was proprietor of certain lands of which the defender, Mr Wardlaw Ramsay, was superior. In the first place, the pursuer acquired from a predecessor of the defender the lands of Langour, and in the titles of that property, dated in 1825, there were reserved to the superior his heirs and successors “the coals and coal-heughs of the said haill lands to be won and disposed upon by me and my foresaids at our pleasure and the right of all others.”

In the second place by contract of excambion, dated 25th August 1857, the pursuer acquired from Mr Ramsay's predecessor three acres of the lands of Westqarter of Coalsnaughton, “reserving always to the said Robert Wardlaw Ramsay, and his heirs and successors, the whole coal, stone-quarries, and all other metals and minerals within the said three acres of the lands of West-quarter hereby disponed, with power to search for, work, and carry away the same.”

In the third place, the pursuer further, under contract of excambion with Mr Wardlaw Ramsay, dated 21st and 24th September 1857, acquired certain other lands, the coal in which was specially reserved to Mr Ramsay in the following clause of the deed:—“But excepting always the coal within the said several subjects above disponed to the said James Blair, which coal is hereby expressly reserved to the said Robert Balfour Wardlaw Ramsay, with full power to him to dig for, work, win, and carry away the same, on paying surface damages which the ground may thereby sustain, as the same shall be ascertained by two persons to be mutually chosen by the said parties,

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with power to name an oversman in case of difference.”

The defender Mr Wardlaw Ramsay was proprietor of the lands on either side of those acquired by the pursuer as above narrated, and of the minerals therein, and the defenders the Alloa Coal Company were lessees from him of the coalfield which extended under his lands and the said lands belonging to the pursuer. In reference to the working of the coal under this lease, the pursuer averred—(Condescendence. 7) “The defenders, the Alloa Coal Company, have recently, as the pursuer believes and avers with the consent and approbation of the defender Mr Wardlaw Ramsay, driven a mine under and through the pursuer's foresaid lands to the minerals under the defender Mr Wardlaw Ramsay's lands, which lie on a higher level to the south-east and south-west, and the said defenders have for some time been and still are conveying along the said mine large quantities of coal and other minerals, in hutches or waggons, from the defender Mr Wardlaw Ramsay's said lands, under and through the pursuer's said lands to a siding by which communication is obtained with the Stirling and Dunfermline Railway, and also with the Devon Valley Railway, at Tillicoultry station. The said mine has been driven not only through the coal seams claimed by Mr Ramsay as reserved to him, but also through the whole other strata to the surface of the ground, the last-mentioned strata being the exclusive property of the pursuer.” (Cond. 8.) “The said mine was driven under and through the pursuer's said lands without his sanction or assent, and the said mine was not required for the purpose of working, winning, or carrying away any coal or other minerals claimed by the defender, Mr Wardlaw Ramsay, as belonging to him in or under the pursuer's said lands, but was driven and is used for the purpose of removing minerals from the defender Mr Wardlaw Ramsay's lands to the south-east and south.”

The pursuer further averred that he had suffered great loss from the subsidence of the surface under which the passage was made, owing to the want of proper support, and the removal of soil from below.

The Coal Company averred that they had right to make and use the said mine, not only for the purpose of working coals under the pursuer's lands, but also for bringing to the surface coals worked under adjacent lands. They further pleaded that the pursuer was barred from objecting by mora and acquiescence.

These being the material facts of the case, the summons inter alia sought for a declarator that the defenders had no right or title “to make or drive any mines, or other roads or passages, whether above or below ground, in, through, or over any part of the lands” belonging to the pursuer, “for the purpose of obtaining access to coal or other minerals in any lands outside the bounds of the pursuer's said lands belonging, or the coal and other minerals in which belong to the defender Robert Balfour Wardlaw Ramsay, or for carrying along, through, or over such mines, roads, or passages any coal or other minerals from such lands, and in particular that none of the defenders were entitled or had or have right to make or drive a mine now existing in the pursuer's said lands, and having its daylight entrance at or near to the south side of the turnpike road between Alloa and Tillicoultry, near to the village of Devonside for any of the purposes foresaid: And further, that the defenders had not, and that none of them have or has, any right or title to carry or convey coal or other minerals wrought or won in lands belonging, or the minerals in which belong to, the defender, Robert Balfour Wardlaw Ramsay, outside the bounds of the pursuer's foresaid lands, either along the said mine, or along any other mine, road, or passage, either now existing, or which may be hereafter made, in, through, or over any part of the pursuer's said lands, whether below or above ground: And the whole defenders ought and should be interdicted, prohibited, and discharged, by decree of our said Lords, from making or using any mines, roads, or passages, whether below or above ground, in or through the pursuer's foresaid lands, or any part thereof, for the purpose of carrying or conveying any coal or other minerals wrought or won from lands belonging, or the coal or other minerals in which belong to the defender Robert Balfour Wardlaw Ramsay, outside the bounds of the pursuer's said lands, and in particular, from carrying or conveying any such coals or other minerals along, or by the mine now existing in the pursuer's said lands above specified.” The summons further concluded for £2000 in name of damages or wayleave.

The Lord Ordinary ( Mackenzie), of consent, on 30th October 1874 remitted to Mr Alexander Simpson, mining engineer, Glasgow, to examine the mines and workings referred to on record and, to report.

Mr Simpson's report, after preface, was as follows:—“The total area under the leasehold held by the Alloa Coal Company from the defender, Mr Ramsay, is about 870 acres, which includes the coal under Mr Blair's lands, extending to about 19 acres. The whole forms one coal-field.

Under the lease in question, three valuable seams of coal have been and are in course of being worked. These are known as the cherry coal, the splint coal, and the main coal.

The cherry coal is the upper seam, and the most valuable both in thickness and quality. The splint coal lies about five fathoms under the cherry seam, and the main coal, or lower seam, lies about thirteen fathoms under the splint. There exist other seams of coal in the properties between the surface and the main coal, but these are so thin that the reporter considers them of no marketable value at present. The positions of the cherry coal, the splint coal, and the main coal under the pursuer's lands, and under part of the defender Mr Ramsay's lands, are shown on the section.

There is a fault or slip running through the foresaid coal-field, the line of which is shown on the plans.

The seams are by this fault or slip thrown to a lower level to the south of it than on the north, and it will be seen, on reference to the section, that the cherry coal on the south of the fault or slip is nearly on the same level as the main coal on the north of it.

The same seams of coal are fouud on each side of the fault or slip, and the seams to the south of the slip can be worked by means of pits and mines from the north side of the slip.

On the north side of this fault or slip, and between it and the river Devon, the three seams

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of coal mentioned have been worked before and since the year 1832, according to the plans, from under the pursuer's lands and from under the defender's Mr Ramsay's lands as a continuous field.

The defenders, the Alloa Coal Company, a few years ago commenced to develope the cherry coal, the most valuable seam to the south of the fault or slip above-mentioned, and they have worked and are now working that seam by means of a pit at the point marked G on the plan, and also by means of the mine in question.

The reporter will now describe the mine. It leaves the surface on the lands of the defender Mr Ramsay at the point A on the plan, on the level of the turnpike road, and runs in a southeasterly direction under these lands for a distance of about 158 yards. The mine then enters under the west march of the pursuer's lands on the waste of the cherry coal, and it then passes under the pursuer's lands from B to E as shewn on the plan and section, a distance of about 330 yards at a depth from the surface varying from 16 yards on the west to 34 yards on the east; between these points B and E the mine is situated between the cherry and main seams. To the east of the point E the mine is under the defender Mr Ramsay's lands.

The mine is about 6 feet high and 8 feet wide, is nearly level, and cross-cuts the strata as shown on the section. From the section it will be seen that the mine runs under the pursuer's lands partly in the cherry coal waste and splint coal waste, and partly in other strata, and it reaches the position of the cherry coal on the south of the fault or slip already mentioned. The strata through which the mine passes other than the coal consists chiefly of shale and sandstone, and is of no marketable value.

By means of the mine in question, splint coal on the north side of the slip is being worked to a small extent under the pursuer's lands, and to a larger extent under the defender Mr Ramsay's lands, and there is still splint coal to be worked by the mine in question from under the pursuer's lands and from under Mr Ramsay's lands all on the north side of the slip.

The reporter, however, is of opinion that the chief purpose for which the mine was made, has been, and is used, was and is by means of it to carry away coal from under the defender Mr Ramsay's lands on the south side of the fault or slip mentioned.

The mine is well made and is laid out in a judicious and skilful manner to accomplish the above objects, and it does no injury to the lands below which it is formed.

The reporter may also state that some water originates in the mine where it crosses the slip under the lands of the defender Mr Ramsay, and this water runs at present along the mine till it reaches the splint coal waste under the pursuer's lands. The water disappears in that waste and does not reach the surface through the mine.”

The Lord Ordinary pronounced the following interlocutor:—

14th April 1875.—The Lord Ordinary having heard counsel and considered the Closed Record, Report by Alexander Simpson, No. 16 of process, and plans therein referred to, Nos. 18 and 19 of process, finds, decerns, and declares that neither the defender Robert Balfour Wardlaw Ramsay, nor the other defenders, or any of them, has, have, or had any right or title to carry or convey coal or other minerals wrought or won in lands belonging, or the minerals in which belong, to the defender Robert Balfour Wardlaw Ramsay, outside the boundaries of the pursuer's lands, along the mine now driven through the pursuer's lands libelled on, or along any other mine, road or passage which may hereafter be made or driven through or over any other parts of the pursuer's said lands, whether below or above ground, except where said mine passes through the coal wastes in said lands, or through the lands acquired by the pursuer under the contract of excambion, dated 25th August 1827; and interdicts, prohibits, and discharges the whole defenders from making or using any mines, roads, or passages, whether below or above ground, in or through the pursuer's foresaid lands, or any part thereof, excepting as aforesaid, for the purpose of carrying or conveying any coal or other minerals wrought or won from lands belonging, or the coal or other minerals in which belong, to the defender Robert Balfour Wardlaw Ramsay, outside the bounds of the pursuer's said lands; and, in particular, from carrying or conveying any such coals or other minerals along or by the mine now existing in the pursuer's said lands above specified, and decerns: Reserves all questions of expenses, and appoints the cause to be put to the Roll with a view to further procedure.

“ Note.—The Lord Ordinary does not see his way to give decree in favour of the pursuer, in terms of the first declaratory conclusion. It does not appear from Mr Alexander Simpson's Report that the mine driven through the pursuer's lands was not made for working the cherry coal in these lands. It is used for working the splint coal, and it may be used for working the main coal situated within the pursuer's lands. The defender Mr Wardlaw Ramsay, and the other defenders as his tenants in the coal under the pursuer's lands, were, the Lord Ordinary thinks, entitled to drive that mine for the purpose of winning and away carrying the coal in the pursuer's lands, which is the reserved property of Mr Wardlaw Ramsay.

It was no doubt decided in the case of the Duke of Hamilton v. Graham, 28th July 1871, 9 Maeph., p. 98, that a superior, as absolute proprietor of the coal and limestone, is entitled to form in them roads for the underground carriage of minerals between mines in other properties. But in the present case Mr Wardlaw Ramsay, the superior, is not absolute proprietor of the strata through which the mine driven through the pursuer's lands runs. That mine is not formed in the coal which is reserved by him. The mine is nearly level, while the coal and other strata rapidly ascend from the entrance of the mine. The strata are therefore cut across by the mine, and the cherry and splint coal seams are alone cut across during its transit through the pursuer's lands.

The coal in question is reserved under three separate titles, the first being dated in 1825, the second in 1827, and the third in 1857. In the title of 1825 there is a reservation to Mr Wardlaw Ramsay of the coals and coal-heughs. In the contract of excambion of 1827 there were reserved to Mr Wardlaw Ramsay the whole coal stone quarries, and all other metals and minerals,

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and in the disposition of 1857 the coal was alone reserved.

Under the term metals and minerals all strata seem to be comprehended which are now destitute of or incapable of supporting animal or vegetable life. If this be a correct definition, Mr Wardlaw Ramsay and his coal tenants had right to drive the foresaid mine through the three acres of ground acquired by the contract of excambion of 25th August 1827, with a view to win the coal of other lands beyond those belonging to the pursuer, because the whole strata were his absolute property.

Under the decision in the Duke of Hamilton's case the superior as owner of the coal was found entitled to use the coal waste for the underground carriage of minerals from other lands, where it was not proved, as is the case here, that the whole reserved coal had been worked out and exhausted.”

With the foresaid exceptions, the mine in question, where it traverses the pursuer's property, is cut through strata which undoubtedly belong to him. That mine may be used for the conveyance of coals to the surface, the produce of the three parcels of land belonging to him, but no coal from other lands can be conveyed along those parts of that mine.

Such being the view which the Lord Ordinary takes of the decision in the case of the Duke of Hamilton both in the House of Lords and in the Court below (7 Macph. 976), he has pronounced decree under the second declaratory conclusion in favour of the pursuer, subject to the limitations above referred to.”

The defenders reclaimed.

Argued for them—The pursuer has no interest. The right reserved is one of property, not of servitude. A reservation of coal is a reservation of the whole coal-field, and the means of working them. In deed of 1825, “coal-heughs” imply a “means of access to coal;” Jameson's Scottish Dictionary.

Authorities— Davidson v. Duke of Hamilton, 15th May 1822, 1 S. 411; Hext v. Gill, 7 L. R. Chancery Appeals, 709; Graham v. Duke of Hamilton, June 30, 1868, 6 Macph. 965, and July 5, 1869, 7 Macph. 976; in House of Lords, July 28, 1871, 9 Macph. 98, and L. R. 2 Scotch Appeals, 166; Earl of Cardigan v. Armitage, 2 B. and C. 197; Caledonian Railway Company v. Sprot, 2 Macqueen, 449; Eason v. Jeffcock, L. R. 7 Exchequer, 379; Proud v. Bates, 34 L. J. Chancery Appeals, 406.

Argued for the pursuer—The right of the defender is one of servitude only to use the pursuer's property to bring to the surface and carry away coals wrought under that property. This servitude did not extend to adjoining lands.

Authorities—Bell's Principles, 986; Turner v. Ballendene, March 29, 1834, 7 W. and S. Appeals, 163; Durham Railway Company v. Walker, 2 L. B. Q. B. 940; Dand v. Kingscote, 6 M. and W. 174; Bowser v. Maclean, 30 L. J. Eq. Ca., 273.

At advising—