No. 2. Before the date of the feu-contract in 1859 a new mode of conducting the mining operations, called stoop-and-room, had been introduced. The former Mar. 10, 1873. method of stoop-and-room was to leave permanent pillars; but under the Buchanan, &c. modern system the coal is completely excavated and removed; the mode of working being to leave large pillars in the forward working from the place where the operations begin and then to work back and remove all the pillars which had previously been left standing. v. Andrew. The evidence shews that at the time of the feu-contract Wilson's trustees had been working forward on the modern stoop-and-room system, leaving stoops or pillars for back working. They had taken out some of the stoops which they had thus left, and Henderson and Dimmack, when they succeeded, proceeded to remove the remaining stoops, beginning at the place where Wilson's trustees left off. There can be no doubt that, although the workings had not arrived at the piece of ground of the respondent, they had approached sufficiently near to occasion damage to the house which had been built upon it. The respondent thereupon petitioned the Sheriff for an interdict to restrain Mr Buchanan and his tenants, Henderson and Dimmack, from working and removing the coal so far as the same might be necessary to be left unwrought for the safety and support of his ground and buildings. The case was advocated to the Court of Session by the present appellants, and after proceedings before the Lord Ordinary, he by his interlocutor interdicted the advocators from removing or working the coal at any point within 100 yards of any part of the respondent's piece of ground. This judgment was reclaimed to the Court of Session; and the Judges adhered to the interlocutor, subject to the alteration that they limited the interdict to working the coal within 100 yards of the respondent's dwellinghouse, instead of to within 100 yards of the piece of ground. The question turns on the construction of the feu-contract, and more especially upon the clause of reservation of the minerals contained in it. By the feu-contract, which is dated in March 1859, Mr Buchanan sold and disposed to James Porteous and his heirs a piece of ground containing one rood eighteen poles and two yards, and thereby the feuar bound and obliged himself to build a dwelling-house which should yield a rent equal to triple of the feuduty (being £5), and to maintain and uphold the building in a proper and sufficient state of repair, so as always to yield such yearly rent, and of an equally good style of architecture, in all time thereafter. Very minute provisions are made in the feu-contract as to the character and description of the house to be built, and the feuar is thereby bound to bear one-half of the expense of keeping up and maintaining streets to be formed at the expense of the superior, ten feet of which streets were included in the contents of the ground feued; and the feuar also bound himself to make and keep in repair a footpath, and to contribute to the expense of the main sewers. The reservation of the minerals is in the most general and comprehensive terms. They have been read by my noble and learned friend, and therefore I will not trouble your Lordships by reading them again. It is admitted that, if the reservation is to be construed according to the ordinary meaning of language, there can be no restraint upon the right of the mineral proprietor to remove every particle of the coal under the piece of ground feued, though the inevitable consequence must be the total destruction of the respondent's dwelling-house. But it is contended by the respondent that the object of the feu-contract being to have a dwelling-house of a particular description built and maintained, the generality of the words of the reservation is to be restrained by reference to this object, and that the only proper working of the coal must be intended to be such as shall consist with an upholding of the surface and building. This construction is maintained by the Judges who decided the case in the respondent's favour, on the assumption that the feuar would never have entered into a contract obliging him to build and maintain a house which at any time might be destroyed by the exercise of rights belonging to the person who imposed the obligation upon him. Lord Cowan puts this very strongly. He says "Suppose it had been in express words stated that the superior and his No. 2. v. Andrew. mineral tenants were to have full power at their pleasure to put the pursuer's property into this certain peril, and it were asked whether the feuar would have entertained such an unreasonable and disastrous proposal. He certainly never Mar. 10, 1873. would." But, with great submission, this appears to me to be determining what Buchanan, &c. has been done by a conjecture of what was likely to have been done. And, then, in even stronger language, Lord Cowan says "It appears to me that to enable the advocators to maintain their construction, the clause behoved to have in express terms provided that the feuar was to submit to have his property destroyed without redress, should the superior or his mineral tenants resort to the modern system of stoop-and-room working." It is difficult to see in what more precise language the feuar could have submitted to this contingency than by agreeing to a reservation by which the whole of the coal is reserved to the proprietor, with full power to work, win, and away carry the same (ie. the whole of the coal) at pleasure, it being expressly agreed that he shall not be liable for any damage that may happen to the piece of ground and buildings thereon by or through such working. Lord Cowan, in the passage which I have read, seems to consider that the destruction of the property will be the necessary consequence of resorting (as he calls it) to the modern system of stoopand-room working. But this system seems to have superseded the former one (of course in cases only where there was no obligation to uphold the surface) at the time of the feu-contract. Porteous, when he became the owner of the piece of ground, and the respondent at the date of the disposition from him, must be taken to have made themselves acquainted with the nature of the underground operations, and to have entered into their contracts with reference to them, and the modern system of stoop-and-room working was not resorted to after the feucontract, but was the mode of working in use at the time by Wilson and Wilson's trustees, and was continued by Henderson and Dimmack when they succeeded as the mineral tenants. It cannot, then, be said that this, which was the ordinary mode, was not a proper mode of working, supposing the proprietor of the minerals had a right to get the whole of the coal, and was not bound to leave a support to the surface. Of course he must be liable for any damage which may happen to the surface from unskilful or negligent working, but I am at a loss to understand how working in the ordinary way upon an established system can be properly characterised (as it is by Lord Benholme) as a reckless mode of working." 66 And then Lord Benholme puts the propriety of the interdict upon a ground which it appears to me, with great respect, cannot be supported. He supposes the mineral proprietor to say, "You must not look for any reparation in the shape of damages. If you were to attempt any such thing, the absolute clause in your feu-contract would put you out of Court, and that is the reason why you shall not be allowed to protect yourself by interdict from the doing of the deed, against the consequences of which you have no redress against me.' his Lordship goes on- "Prevention is ever preferable to cure. But prevention becomes absolutely indispensable when the threatened injury admits of no redress." What is this but to say to the person asking for the interdict, You have weakly and foolishly entered into an agreement whereby you have given to another person the liberty to do you damage without being answerable for it. We will interpose to protect you from the consequences of your folly by preventing that being done which you have agreed that the other party to the agreement shall have the right to do. This would be, if not to make a new contract, at least to annul the provisions of the existing one. Lord Neaves, following Lord Benholme's view, held that if it is plain and demonstrable that the consequence of the mode of working would be a destruction of the surface, that would not be proper working. And he adds that he cannot presume such to have been intended without words far more explicit than are contained in the clause of reservation. He even doubts whether a clause of this kind explicitly made could be enforced. No doubt of this nature, however, was expressed in the course of the argument. On the contrary, I put the case to the learned counsel for the respondent, of land feued with an obligation to build a house and keep it in repair, with a reservation to the superior of No. 2. the power to remove the house at any time if it interfered with the exercise of rights which he possessed. And he admitted that such an agreement would be Mar. 10, 1873. perfectly valid. Indeed to deny this would be to adopt the dictum of Lord Buchanan, &c. Denman in Hilton v. Lord Granville, which was frequently doubted, and at v. Andrew. last has been distinctly overruled. 1 Sir Richard Baggaley, in his clear and able argument, did not rely upon the improbability of the respondent having entered into a contract which left his property at the mercy of the mineral proprietor, nor deny that the words of the reservation, taken by themselves, would be sufficient to give the mineral proprietor the right to remove the whole of the coal from under the piece of ground belonging to the respondent, but he contended that the clause must be read in connection with, if not in subordination to, the object of the feu-contract, which was to provide for the building and keeping up a house on the ground feued. And therefore he insisted that the words "the proper working of the coal" contained in the reservation, must be construed with reference to this primary object of the contract. He endeavoured to shew that Wilson's trustees had worked so as to leave pillars as a support to the surface; and he therefore contended that if Henderson and Dimmack were removing these pillars they were not pursuing a proper mode of working. But the operations of Wilson's trustees were not such as that described. On the contrary, it is proved that they were getting the coal on the modern stoopand-room system, and accordingly in their forward working they had left large pillars; but they had commenced in working back to remove some of these pillars when their lease came to an end, and Henderson and Dimmack succeeded them. Mention is made of a pillar of coal of larger size than usual left under a house called Dr Wilson's feu-for what reason that particular house was to be saved is not stated, nor whether the support to it was to remain permanently. But there is no evidence of any intentional protection given to any other house. And when a witness said "We leave masses of coal to protect any important building, but if it is a trifling house we let it down," he is speaking of cases in which there is the surface to be attended to as well as the coal. If the respondent is right in saying that under the reservation the working of the coal must be carried on with reference to the security of the building, then the mineral tenants must not come within one hundred yards of the dwellinghouse, which the witnesses say would be a reasonable distance to keep off to ensure absolute safety. So that the mineral tenants would be deprived of a quantity of coal beyond the limits of the rood of ground feued to the respondent. In this view it is not an inaccurate description of the argument of the respondent given by the Lord Advocate that the protection to be afforded to him is to prevent the mineral proprietor working to within such a distance of the respondent's house as a skilled person would say he ought not to come. But For how The whole argument of the respondent is involved in the asserted restriction of the generality of the words of the reservation in order to render it subservient to the obligation to the feuar to build and maintain the dwelling-house. But this mode of dealing with the reservation seems to be adopted, although not avowedly, on account of the assumed impossibility of any person entering into a contract which it is taken for granted is a highly imprudent one. this is resorting to conjecture instead of resting upon construction. can it properly be assumed that there is imprudence in the contract? It may have suited Porteous' purpose to become the owner of the piece of ground upon the agreed terms; or, assuming that his entering into such a contract was an act of imprudence, is that any reason why full effect should not be given to it? There is no ambiguity in the reservation; it plainly and clearly reserves to the mineral proprietor the whole of the coal within the piece of ground feued, and empowers him to work it without being liable for any damage which may happen to the ground or building thereon through such working. Why should this plain, unambiguous language be construed to mean-You shall not take 1 Feb. 10, 1845, 5 Ad. and E. (Q. B.), 701. away the whole of the coal, but only so much of it as you can get without No. 2. damaging the ground and building? v. Andrew. It is the safest and best mode of construction, upon all occasions, to give the Mar. 10, 1873. words free from ambiguity their plain and ordinary meaning; and, following Buchanan, &c. this course, it appears to me that the reservation gives to the mineral proprietor the power to work the mines in the proper and accustomed mode of working, and to remove the whole of the coal without leaving any support to the surface, and without being answerable for any damage which may be thereby occasioned to the ground and dwelling-house of the respondent, except such as may occur through unskilful or negligent working. It is unnecessary to advert to the cases of Rowbotham v. Wilson,1 and Wakefield v. The Duke of Buccleuch,2 as authorities upon this occasion; because, as the learned counsel for the respondent observed, they are distinguishable from the present case inasmuch as in neither of them was there any burden laid upon the owner of the surface. But the case of Williams v. Bagnal, cited from the "Weekly Reporter "3 and the "Weekly Notes," approaches very nearly to this, because, although there was in that case no obligation on the plaintiff, the purchaser, to build, yet it appears from the statement in the "Weekly Notes" that the grant was made to him for building purposes. The reservation of the minerals, with the power of working them without being answerable for any damage, was as large as in the present case. And the lessee of the minerals having by his workings caused a subsidence of the land, the purchaser sought to restrain his further working, on the ground that a grant of the surface included by implication of law everything necessary for its support, and that a man could not derogate from his own grant. But the Vice-Chancellor held that the implication of law was swept away by the express terms of the contract, which were plain, clear, and simple, and dismissed the bill with costs. I cannot better conclude my opinion of this case than in the words of the Lord Justice-Clerk,-"I look on these obligations to the mineral owner as part of the consideration for the feu, and I can see no reason for permitting the feuar, while he retains the benefit, to repudiate the conditions of his right." I think the interlocutors appealed from ought to be reversed. LORD COLONSAY.-My Lords, I cannot say that this case is free from difficulty, looking to the difference of opinion which has existed upon it in the Court below. I think there has been in some degree a misapplication of a very well known doctrine, namely, the general obligation upon a mineral owner to leave vertical and lateral support for the surface, even where that is not expressly stipulated for. It is an implied obligation. That point was very fully put, and with very good illustrations, by Lord Cranworth in the case of The Caledonian Railway Company v. Sprot.5 His Lordship there pointed out that the construction of such a clause might be materially affected, and in many cases would be materially affected, by the nature of the ground, and the particular purpose for which the surface was granted away. In applying the last part of his Lordship's observations to this case I think too much effect has been given to the obligation to erect buildings and to maintain them, because in doing so that observation, and the effect of it, have been applied, not merely to a case in which there was a simple reservation of minerals, and the right to work them, but also to a case in which there were express stipulations providing for events which were expected, or were in the contemplation of the parties as possible, if not probable, at the time when the feu was granted. Now, my Lords, I think that this reservation clause, or, I should say, the stipulation as to the right of working the minerals, is of a kind that is not common. It is a peculiar stipulation, and one especially applicable to the condition of these mineral fields at the time that the feu-contract was entered into. We know from the evidence in the case that at that time the seams which existed above the one now under consideration had been wrought out for a con 16 E. and B. 593. 4 Dec. 10, 1866, 392. 2 L. R. 4 Eng. Ap. 377. 3 15 W. R. 272. No. 2. siderable time. I think there were three-the Pyot Shaw seam, the Main seam, and the Splint seam. Those seams had been worked in the ordinary Mar. 10, 1873. stoop-and-room manner, that is to say, stoops or pillars had been left in order Buchanan, &c. v. Andrew. to support the roofs. But this new seam, which was going to be worked when Mr Wilson took the contract to work it, had not previously been worked, and at the time when Mr Porteous came to take his feu Mr Wilson had been in possession of that seam for a considerable number of years. I think that Wilson's lease was in 1846, and that Porteous' feu was in 1859. We have it in evidence that the working by Wilson and Wilson's trustees in that seam was a working by the new or modern system of leaving large pillars of coal in going forward, and taking them out in returning. That is evidenced by the fact that the pillars which remained were of that class and size which were adapted for that kind of working, and by the further fact that Wilson's trustees had commenced to remove the pillars on their return. It might not have been well ascertained or known what was to be the consequence to the wastes above of this mode of working below. It was a comparatively new mode, but it was a mode recognised, and it was a mode in use in this particular seam at the time when Porteous took his feu. And, accordingly, we find in the clause of reservation that very matter expressly provided for, namely, the wastes above being affected and brought down by the working by the new mode in the seam. There would be no danger of their coming down except by the ordinary action of crumbling, or by the action of water, if there was any, which there does not seem to have been to any extent-but by the working below it was possible that the wastes might be brought down. Accordingly, in the feu which Mr Porteous took in 1859 there is not merely a reservation of minerals—not simply a right to work without being liable for damage-but an express provision with reference to any evil which might result from the giving way of the pillars above, in consequence of the workings which might take place under Mr Wilson's lease. My Lords, it appears that the danger which was contemplated as possible has arisen. The fact has occurred that crushings have taken place in consequence of this mode of working below, and it is by reason of that that the damage has occurred of which the respondent complains, and which has extended itself to other houses in the neighbourhood-I think to the houses of persons of the names of Martin and M'Lachlan. It is plain to me that under this clause of reservation the parties protected themselves against that very and precise result which is now the subject of complaint on the part of the pursuers; and although I think that if there had been no such express reservation of the right to work without damage-if it had been merely a right to work the minerals, as occurred in the case of the Caledonian Railway Company v. Sprot, there would have been a clear ground for requiring this party to leave a proper support; yet where there is a stipulation such as we have here, introduced plainly on purpose to protect the mineral owner or his tenants from any consequences which might result either to buildings erected upon the surface, or to the surface itself, devoted to other purposes, by subsidence, I think it is impossible to deny effect to that clause; and I cannot see how effect can be given to that clause without rejecting the pleas of the respondent. I see that it is said in the Lord Ordinary's judgment that it would be absurd (I think that is the expression) to suppose that it could have been in the contemplation of the parties that there was to be an obligation to rebuild, and an obligation to maintain houses-the feu being taken for the purpose of building -if it was to be in the power of the mineral owner to do that which would destroy the buildings. He says that there may have been some other injuries ("destroy" is the word used there) for which the mineral owner would not be liable, and against which he has protected himself. But his Lordship does not illustrate this, and I do not think that a greater or smaller amount of injury to the buildings would affect the principle of the case. The ground upon which the majority of the Court below proceeded was a very broad one, namely, that the workings were not proper workings, and that they could not be proper workings, becanse they produced the result that is |