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Scottish Court of Session Decisions >>
George Oughterlony of London, Merchant, v The Earl of Selkirk. [1755] Mor 164 (28 November 1755)
URL: http://www.bailii.org/scot/cases/ScotCS/1755/Mor0100164-019.html Cite as:
[1755] Mor 164
Subject_1 ADJUDICATION and APPRISING. Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.
George Oughterlony of London, Merchant, v. The Earl of Selkirk
Date: 28 November 1755 Case No. No 19.
An adjudication of the lands, found to comprehend the mines.
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Sir Alexander Murray of Stenhope, obtained a charter of mines from the Crown. It recited the 12th unprinted act, Parl. 12. Ja. VI. 1592, and granted to Sir Alexander, his heirs and assignees, all the mines found, or to be found, in his lands in the county of Peebles.
After the date of this charter, the creditors of Sir Alexander did diligence against his estate. The Earl of Selkirk adjudged the lands; Oughterlony adjudged both lands and mines.
In a competition of the creditors of Stenhope, the question occurred, Whether the mines were carried by the adjudication which mentioned the lands only?
Pleaded for Oughterlony, who adjudged both the lands and the mines: He who has right to lands, may, in terms of the act 1592, demand a charter of mines. This faculty of demanding will be carried by an adjudication of lands: But after this faculty has been exercised, and a charter of mines obtained, the lands and the mines are held under different titles, and must be separately adjudged. Thus an adjudication of lands may carry the right which the proprietor has of purchasing the teinds of those lands; but such adjudication will not carry the teinds already belonging to the proprietor of the lands.
Pleadedfor the Earl of Selkirk, who adjudged the lands only: By the act 1592, the proprietor of lands may demand a charter of mines, and he alone may work them; he cannot work them after the lands have been adjudged from him. Unless, therefore, the adjudication of lands carry the mines, the grant of the mines must become ineffectual, and the intention of the act 1592 be frustrated.
‘The Lords found, That the adjustication of the lands comprehends the mines.’
Reporter, Strichen.For Oughterlony, Sir D.Dalrymple & Lockhart.Alt. Miller & Brown.Clerk, Justice.
Fol. Dic. v. 3. p. 9. Fac. Col. No 167. p. 249.
