No. 1. and yet it would be a very strong proposition to hold that the tenant could give up a lease of that kind because the fruit had not exceeded the seed and the laFeb. 14, 1873. bour. Again there might be land which might be allowed to run down into sterility, and become unproductive by the fault of the tenant himself. There also the dictum would not apply. Gowans v. Christie. But without pursuing the question with respect to agricultural leases further I should doubt extremely whether dicta of this kind apply at all to the leases of mineral subjects. In point of fact, though we speak of a mineral lease, or a lease of mines, the contract is not in reality a lease at all, in the sense in which we speak of an agricultural lease. There is no fruit, that is to say, there is no increase, no sowing or reaping in the ordinary sense of the term, and there are no periodical harvests. In point of fact, what we call a mineral lease is really, when properly considered, a sale out and out of a portion of land. It is liberty given to a particular individual, for a specific length of time, to go into and under the land, and to get certain things there, if he can find them, and to take them away just as if he had bought so much of the land. It is very difficult to apply to a case of that kind dieta which evidently relate to the ordinary process of agriculture, to reaping and sowing above ground. Further than that, it is obvious that if these dicta were held to apply to mineral leases, the consequence would be that mineral leases, instead of being what they have always been considered, highly speculative and uncertain contracts, would become contracts absolutely safe and free from any risk whatever, because the tenant, if he found his lease profitable, would continue to hold it, and reap the profit from it; but if he found it unprofitable, he would certainly give it up, and the loss would be not his, but the landlord's. Again, it would be impossible to apply these dicta to mineral leases without some knowledge of the area of time over which you were to spread the account of profit or loss. I asked Mr Pearson, who opened the case with great ability for the appellant at your Lordships' bar, to what time he would refer the question of the profit or loss, and I think he was obliged to admit that he would take the whole period covered by the lease (without counting the breaks), which in the present case would be a period of twenty-one years. Then I asked, how would it be possible at the end of the third or the fourth year of the lease to speculate as to what the profit or loss would be if it were spread over the whole period of the lease. How can you at the end of the third or fourth year of the lease tell what the price of labour may be in future years, or what machinery may be introduced in future, which may dispense to a certain extent with labour, or what the market value of minerals of the same kind will be at a future period, or what the effect upon the market value of those minerals may be of the discovery of other minerals of the same kind in the same neighbourhood? All those things are perfectly uncertain. The moment you admit, as you must admit, that you cannot confine the question of profit and loss to the transactions of one year, but that you must spread it over the whole series of years comprised in the lease, that moment you confess that to take beforehand a speculative contract with reference to the future loss and profit for the whole period of the lease is a thing which it is simply impossible to do. Then, finding that there is no decided case which is an authority for the contention of the pursuer, and that there are no dicta of institutional writers which can properly be applied to a case of this kind, I have no hesitation in saying that it appears to me that the pursuer has utterly failed to establish that there is in the case of a lease of this kind any implied warranty in law approaching to that express warranty which in the first instance he asserted had been made by his landlord. It is upon this ground that I should wish to rest the decision of the case. And I do so the more readily for this reason that I observe some of the learned Judges in the Court below were rather inclined to rest it to some extent upon another ground, namely, to assume there may be the common law right for which the pursuer contends, but that, on the other hand, that common law right is ousted by the express provisions contained in this lease with regard to breaks. If I found that there was a common law right such as has been alleged I should have great hesitation in saying that anything in the lease did oust that right. If there is such a common law right I do not see that it is in the least degree No. 1. impossible that it should co-exist with a lease containing a provision for breaks. Christie. I do not therefore hold that the common law right is excluded by the provisions Feb. 14, 1873. INTERLOCUTORS affirmed, and appeal dismissed, with costs. D. C. R. C. BUCHANAN AND HENDERSON & DIMMACK, Appellants WILLIAM JACKSON ANDREW, Respondent (Petitioner).-Sir Richard Minerals-Superior and Vassal-Feu-Contract.—A superior bound his vassal to build and maintain on his feu a house of a certain value, and reserved to himself the minerals, with power to work them at pleasure, and to remove as much stone, &c., as might be necessary for the proper working of the minerals, it being expressly agreed that he should not be liable for any damage to the vassal that might happen through the working of the coal, &c., by longwall workings or otherwise. Held (reversing judgment of the Second Division) that the vassal was not entitled to an interdict against the superior working the minerals under his house on the ground that the workings would probably injure or destroy it. No. 2. Mar. 10, 1873. Buchanan, &c. v. Andrew. Ld. Chancellor Ld. Chelms (IN the Court of Session February 24, 1871, ante, vol. ix. 554.) William Jackson Andrew, solicitor in Coatbridge, acquired from James (Selborne). Porteous a feu on the estate of Colonel Buchanan of Drumpeller, on ford. which a house and offices were built of the value of £900. The feu-con- Ld. Colonsay. tract between Colonel Buchanan and Porteous, dated in 1859, contained the following clause :-" Reserving always to the said first party and his heirs and successors whomsoever the whole coal, fossils, fireclay, ironstone, limestone, freestone, and all other metals and all minerals in the said piece of ground, with full power to work, win, and away carry the same at pleasure, as also to remove as much stone and other matter as may be necessary for the proper working of the said coal, ironstone, and others, and that free of all or any damage which may be thereby occasioned to the said second party and his foresaids; and it is expressly agreed that the said first party and his foresaids shall not be liable for any damage that may happen to the said piece of ground, buildings thereon or existing hereafter thereon, by or through the working of the coal, fireclay, ironstone, freestone, or other metals or minerals in or under the same, or in the neighbourhood thereof, by longwall workings, or otherwise, or which may arise from or through the setting or crushing of any coal waste or other excavation presently existing, or which may exist hereafter within or in the neighbourhood of the ground hereby disponed, through the said first party or his foresaids working or draining the said metals or minerals, or others as aforesaid;" "And further the said James Porteous binds and obliges himself and his foresaids to erect, in so far as not already done, a single or double dwelling-house or villa of one storey with attics, or a dwelling-house of one and a half or two storeys in height, No. 2. which house or villa shall be for the occupancy of one family only, and shall yield a yearly rent equal to triple of the foresaid feu-duty (£5), and Mar. 10, 1873. to maintain and uphold the foresaid building in a proper and sufficient state of repair, so as always to yield such a yearly rent, and of an equally good style of architecture in all time thereafter; and in building said dwelling-house and offices the said James Porteous and his foresaids will observe, as he hereby binds and obliges himself to observe, the regulations, and fulfil and perform the whole obligations underwritten." Buchanan, &c. v. Andrew. The seam of coal referred to was let in 1847 to Mr Wilson of Dundyvan, and at the date of the feu-contract was wrought by his trustees, who in working it left sufficient pillars of solid coal to support the surface. The subsequent tenants, Henderson and Dimmack, without making any provision for the support of the surface, proceeded to work out the pillars and to work other adjoining seams. Andrews then presented a petition in the Sheriff-court of Lanarkshire against Colonel Buchanan and Henderson and Dimmack, for interdict to prevent them removing or working out the pillars in the seam of coal underneath and adjacent to his feu. The petitioner averred that the walls, ceilings, and partitions of his property had been rent and shaken, many of the doors would not shut, and that several of the stones in the front and back walls of the house were rent and damaged. The respondents declined to do anything to prevent further damage. The Sheriff-substitute (Logie) ordered proof, and the Sheriff (Glassford Bell) adhered. The respondents advocated. Henderson and Dimmack pleaded;(3) The petitioner is barred by the terms of his own feu-contract from insisting either for interdict or damages against Mr Buchanan, the owner of the coal and minerals, or against the present respondents as his tenants. (4) The petitioner, not being the owner of the coal and minerals, is not entitled to object to the owner or his tenants working or carrying away the same. Colonel Buchanan pleaded;-(1) The respondent's title gives him no right in the lands of which he alleges himself proprietor beyond those conferred by his author by the feu-contract entered into between him and the advocator, Mr Buchanan, and the terms and conditions of that feucontract are binding in toto upon the respondent. (3) The right to work said minerals by longwall workings or otherwise having been specially agreed to in said feu-contract by the respondent's author, the respondent is not now entitled to interdict against such workings as craved by him. The petitioner pleaded;-(1) The operations of the first-named respondents being reckless, unfair, and unskilful, and being carried on to the loss, injury, and damage of the petitioner, he has good grounds to insist on the same being discontinued. (3) The petitioner being bound to uphold and maintain the houses erected by him on his feu, it is incompetent and illegal for Colonel Buchanan to grant authority for working or for the respondents to work out the coal under or in the neighbourhood of the petitioner's feu, so far as the same may be necessary to be left for the safety and protection of the petitioner's property, unless other ample means and support are provided and taken. The Lord Ordinary (Ormidale) renewed the order for proof, and after a proof pronounced this interlocutor:-" Finds as matter of fact (1) that the respondent (petitioner in the Sheriff-court), Mr Andrew, is the proprietor of a piece of ground situated at Merriston of Coatbridge, extending to one rood two poles and eighteen yards or thereby, which he holds in feu from the advocator (respondent in the Sheriff-court), Mr Buchanan, Mar. 10, 1873. the annual feu-duty payalle for which is £5; that on this piece of ground No. 2. there is a dwelling-house, with washing-house and other out-houses attached thereto, which were erected within the last few years, and prior to Whit- Buchanan, &c. sunday 1866, at a cost of several hundred pounds; and that it is a con- v. Andrew. dition of the feu-contract under which the respondent holds his property from Mr Buchanan, as superior, that on the one hand the superior should be entitled to work the minerals under the ground feued, without being liable in any damage thereby caused to the feuar, and that on the other hand the feuar should be bound and obliged to erect on the said piece of ground a dwelling-house or houses and pertinents which should yield a yearly rent equal to triple the amount of the annual feu-duty payable by the feuar, and to uphold and maintain the same in a proper and sufficient state of repair, so as always to yield such yearly rent in all time coming : Finds also as matter of fact (2) that the advocators (respondents in the Sheriff-court), Robert Henderson and Richard Dimmack, carrying on business under the firm of the Drumpeller Coal Company, are at present, and have been since the term of Whitsunday 1866, the lessees of the coal in certain parts of the lands and estate of Drumpeller, belonging to the other advocator, Mr Buchanan, comprehending the coal in the respondent's foresaid piece of ground, and lands adjacent thereto; that they were, at the date when the respondent applied in the Sheriff-court for interdict against them and Mr Buchanan, working out one of the seams of said coal under or in the neighbourhood of the respondent's house and ground; that the seam of coal so being wrought out had been at a former period prior to Whitsunday 1866 let to the trustees of the late John Wilson of Dundyvan; that the trustees of the said John Wilson, in working the said seam of coal under and adjacent to the ground now belonging to the respondent left pillars of solid coal to support the surface of the petitioner's feu, and buildings thereon; and that notwithstanding of this the advocators, Messrs Henderson and Dimmack, carrying on business as aforesaid, proceeded to work out many of the said pillars of solid coal so left by the said trustees under or in the neighbourhood of the property of the respondent, and have not left, and are not leaving, a due and proper support for the surface, and for the buildings belonging to the respondent: Finds also as matter of fact (3) that in consequence of the advocators' Henderson and Dimmack's mode of working as aforesaid, the respondent's dwelling-house on the piece of ground held in feu by him as aforesaid has been seriously injured, and will be entirely destroyed if the advocators work out or impair the foresaid pillars of coal within 100 yards of the property belonging to the respondent, or of the corresponding space subjacent thereto Finds also as matter of fact (4) that the advocators, Messrs Henderson and Dimmack, have, nevertheless, threatened to work out said pillars of coal, and all the coal under and in the neighbourhood of the said piece of ground belonging to the respondent, and have intimated their determination to do so, and that the workings of the advocators, Messrs Henderson and Dimmack, complained of, as well as their determination to continue these workings to the effect of removing the foresaid pillars and all the coal under and in the neighbourhood of the respondent's property, have been and are approved of, and authorised by the other advocator, Mr Buchanan: Finds, in these circumstances, that, as matter of law, the respondent is entitled to interdict against the advocators to the extent and effect following: Therefore suspends, interdicts prohibits, and discharges the advocators (respondents in the Sheriffcourt), each and all of them, from removing or working the seam of coal at present or which was at the time the interdict was applied for in the Sheriff-court being wrought out by the advocators, Henderson and Dim No. 2. Buchanan, &c. v. Andrew. mack, at any point or points underlying the surface within 100 yards of any part of the respondent's foresaid piece of ground, or of the correspondMar. 10, 1873. ing space lying under or beneath the same; and reserves to the respondent all claims competent to him against the advocators for the loss and damage already sustained, or that may yet be sustained by him, in consequence of the operations of the advocators, Henderson and Dimmack, and to the advocators their answers thereto as accords, and decerns: Finds the respondent (petitioner in the Sheriff-court) entitled to expenses," &c. Henderson and Dimmack reclaimed. The Second Division (the Lord Justice-Cerk Moncreiff dissenting) adhered to the Lord Ordinary's interlocutor, with this variation,-" (1) that in the third finding thereof the word dwelling-house' be substituted for the word 'property' and that in the subsequent part of the said interlocutor the words any part of the respondent's foresaid piece of ground' be omitted, and after the words within 100 yards' there be inserted the words the respondents dwelling-house:"" Colonel Buchanan and Henderson and Dimmack appealed. LORD CHANCELLOR.-My Lords, in this case the petitioner (who is the respondent here), is the feuar of certain land at Coatbridge in Scotland, under one of the defenders (who is the appellant here), who is the superior and the owner of the subjacent minerals. The Second Division of the Court of Session have pronounced an interlocutor, from which Lord Justice-Clerk Moncreiff dissented, interdicting the appellant and his lessees from removing or working a particular seam of coal, called the Kiltongue seam, under the feued land in question at any point or points underlying the surface within one hundred yards of any part of the respondent's dwelling-house, erected upon that ground. The ground, as I understand it, of the interlocutor thus pronounced, from which, as I have said, the Lord Justice-Clerk dissented, was, that in the judgment of the Court any working within the prohibited distance would be dangerous to, and would probably destroy, a dwelling-house belonging to the pursuer, which under certain covenants in the feu-contract he had erected upon the land in question; and that the mineowner was not at liberty, under the terms of the feu-contract, or having regard to its proper legal effect, to work the mines in any way which would, at least by the operation of causes which could be foreseen and guarded against, be likely to produce the effect of letting down or injuring the buildings upon the surface of the land. Now, my Lords, with respect to the law, I apprehend that there is no difference between the law of England and law of Scotland in this respect. There is no doubt that, generally speaking, when a man grants the surface of land, retaining the minerals, he is guilty of a tortuous act if he so uses his own right to obtain the minerals as to injure the surface or the things upon it, and he would be answerable in damages for doing so. And as the act would be wrong, and as he would be answerable in damages for it, and as prevention in such a case is a better remedy than any damages, the Court would be justified in granting, and probably would be called upon to grant, an interdict to prevent him from doing so. And if this were an ordinary case of that character, assuming that the evidence justified, as I think probably it might be found to justify, the particular limits of prohibition, the interdict would undoubtedly be right. But, on the other hand, I apprehend it is the clear law of England, and also of Scotland, that when two persons meet and contract together and settle together the terms of a contract for the purchase, or sale, or letting of a property, they are at liberty to enter into such terms as they may think fit, provided always of course that they do not agree to do anything contrary to the public law of the land; and if the owner of surface lands, in buying those surface lands from the person who was previously the owner of the soil, is willing to take the risk of any injury which may be done and any damage which may be sustained by the working of the subjacent minerals, and contracts accordingly, it is perfectly lawful for him to do so. Nor, as I apprehend, can any Court hold such a contract |