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Murray v. Allan, &c.
Raes, Dempsters v.
Saltoun, Lord, Bridges v. .
Simpson, Balfour and Others v.
Tannett, Walker, and Company v. Hannay and Sons,
Wotherspoon, Lawson or Surtees v. .
Dunn, Rutherford v.
Home v. Paterson,
Paterson, Home v.
Rutherford v. Dunn,
II.—HOUSE OF LORDS.
Andrew, Buchanan and Henderson & Dimmack v.
Christie, Gowans v.
Glendonwyn v. Gordon, &c. -
Mackintosh v. Mackintosh's Trustees,
Paterson v. Macleod,
Shankland et al., Watson and Company v.
Trefusis, Forbes v.
THE HOUSE OF LORDS.
JAMES GOWANS, Appellant (Pursuer).—Pearson, Q.C.-A. Taylor Innes. No. 1.
Feb. 14, 1873.
Gowans v. Minerals-Landlord and Tenant-Lease-Sterility.—Held (in aff. judgment Christie. of the Court of Session) that a tenant was not entitled to reduce a lease of minerals on the ground that they could not be worked to profit, even if no rent were to be paid.
Observations on sterility as a ground for reducing agricultural and mineral leases.
(In the Court of Session 8th February 1871, ante, vol. ix. 485.) Ld. Chancellor
In February 1866 James Gowans took a lease from Alexander Christie, (Selborne). then proprietor of the estate of Baberton, of the whole freestone and other to
Lord Chelms. minerals in the estate, with certain small exceptions, for a period of Ld. Colonsay. twenty-one years from Candlemas 1866, at a fixed yearly rent of £200 ; Lord Cairns. it being provided that the rent should not be exacted for the first year, except in the event of Gowans lifting minerals from the estate during that period, in which event he was to pay a modified rent of £100. The lease then declared it to be “in the power of the lessee and his foresaids, on giving six months' notice of his intention to do so previous to any term of Candlemas occurring at the end of the third, seventh, or fourteenth years of this tack, to remove from the subjects hereby let; and this tack, on the tenant's giving such notice at any of these periods, shall cease and determine, it being hereby declared that in the event of the tenant availing himself of the break at the end of three years he shall be obliged to restore the ground broken up in such a manner as that it may be ploughed up, or to a gradient of not more than one in five, and failing this to pay such damages as may be determined by the arbiters after provided for.” The lease contained no stipulation of lordship, and no provision for abandonment in the event of its being found that the minerals could not be wrought so as to yield a profit to the tenant.
Immediately on entering into the lease Gowans began to search for freestone by boring and otherwise.
Alexander Christie died in August 1868, and was succeeded in the estate by his brother, Brathwaite Christie.
In May 1870 Gowans raised this action against Brathwaite Christie and the executor of the late Alexander Christie, concluding for reduction of the lease ; for declarator that he was no longer bound by it; and for