Scottish Court of Session Decisions

The Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33) enacts—Section 70—“The company shall not be entitled to any mines of coal, ironstone, slate, or other minerals, under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away or used in the construction of the works, unless the same shall have been expressly purchased, and all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby.” Section 71 — “If the owner, lessee, or occupier of any mines or minerals lying under the railway, or of any of the works connected therewith … be desirous of working the same, such owner, lessee, or occupier shall give to the company notice in writing of his intention so to do thirty days before the commencement of working, … and if it appear to the company that the working of such mines, either wholly or partially, is likely to damage the works of the railway, and if the company be desirous that such mines or any parts thereof should be left unworked, and if they be willing to make compensation for such mines or minerals, or such parts thereof as they desire to be left unworked, they shall give notice to such owner, lessee, or occupier of such their desire, and shall in such notice specify the parts of the mines under the railway or works … which they shall desire to be left unworked, and for which they shall be willing to make compensation, and in such case such owner, lessee, or occupier shall not work or get the mines or minerals comprised in such notice; and the company shall make compensation for the same, and for all loss or damage occasioned by the non-working thereof, to the owner, lessee, and occupier thereof respectively; and if the company, and such owner, lessee, or occupier, do not agree as to the amount of such compensation, the same shall be settled as in other cases of disputed compensation.”

The Caledonian Railway Company ( complainers) brought an action of suspension and interdict against Hugh Symington, contractor and quarrymaster, Coatbridge, and against James Falconer, W.S., Edinburgh, and others, the arbiters and oversman in certain deeds of nomination and submission, for any interest they might have, ( respondents), (1) to interdict the respondents from proceeding under a nomination of arbiters and oversman for the purpose of valuing certain freestone lying under the complainers' line of railway in the parish of Kirkpatrick-Fleming and county of Dumfries, and (2) to interdict the respondent Hugh Symington, and all others acting under his authority, from entering or encroaching upon the property and subjects belonging to the complainers lying in the said parish, and in particular any portion of the freestone rock lying within or under the said property and subjects. The complainers, for the purpose of their railway undertaking, had acquired by conveyance in 1852 certain portions of the estate of Woodhouse, in the parish of Kirkpatrick-Fleming. The respondent Hugh Symington was the assignee of a lease, dated October 1896, by Robert Shand Anderson of Woodhouse, of the sole and exclusive right of quarrying for and removing freestone rock upon the estate of Woodhouse for twenty-one years.

The complainers pleaded—“(1) In respect that the complainers are owners of the freestone rock under their property, the respondent Hugh Symington is not entitled to work the same, or to claim compensation in respect of its being left unworked, and the complainers are entitled to have the arbitration proceedings suspended and the respondents interdicted as craved.”

The respondents pleaded—“(2) The complainers not being, the owners of the freestone rock under their property, the note should be refused, with expenses. (3) The complainers having by statutory notices,

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given under and in pursuance of the said Railways Clauses Consolidation Act, reserved the portions of freestone rock in question to be left unworked, they are now bound to pay to the respondent compensation therefor in terms of said Act. (4) The complainers having admitted that the freestone rock in question is mineral, and having by the said statutory notices under the said Railways Clauses Consolidation (Scotland) Act 1845 contracted to pay compensation therefor in pursuance of said Act, they are not entitled to interdict as craved in either of the conclusions of the note. (5) The respondent having, on the faith of the complainers' undertaking to pay compensation in terms of the said Act, suspended, or ceased, or varied their quarrying operations from time to time, and thereby incurred great loss, damage, and expense, the complainers are barred rei interventu from insisting in the note. (6) The freestone rock in question being in fact a mineral within the meaning of the said Act, the respondent is entitled to compensation in respect of the non-working of the portions of freestone rock reserved by the complainers, as the same may be ascertained by arbitration in terms of the Railways and Lands Clauses Acts.”

The notices referred to in the respondent's plea 3 were as follows: By notices dated 17th and 30th July 1907 and 30th January 1908, the respondent Hugh Symington gave notice to the complainers in terms of the Railways Clauses Consolidation (Scotland) Act 1845, and particularly of section 71 thereof, of his intention to commence working certain areas of freestone rock lying under the complainers' property. Thereafter the complainers, by notices dated 12th December 1907 and 17th April 1908, gave the respondent notice that they desired to be reserved and left unworked two areas of freestone rock under the complainers' property.

The notice given on 12th December 1907 (and that of 17th April 1908 was in similar terms) was as follows:—“Whereas … you gave notice that you were lessees of certain minerals, including the right of quarrying for and removing freestone rock in that part of the estate of Woodhouse … known generally as the Annanlea Quarry, and that it was your intention after the lapse of thirty days from the date of said notice to work the freestone which is below the Caledonian Railway Company's line and property at the place in question, I do hereby on behalf of the Galedonian Railway Company give you notice that the said company are desirous that the area of freestone rock situated under and within the area tinted pink upon the plan annexed and signed as relative hereto should be left unworked, and that the said company are willing to make compensation therefor in pursuance of the said Railways Clauses Consolidation (Scotland) Act 1845, and I require you accordingly not to work or get the area of freestone rock above specified. …

J. Blackburn,

Secretary of the Caledonian Railway Company.”

By notice of claim dated 18th May 1909, the respondent gave notice—“( First) that he desired to have such compensation settled by arbitration, unless the complainers agreed to pay the amount of compensation claimed by him, and ( Second) that his interest in said freestone rock was as lessee thereof, and ( Third) that the amount of compensation claimed by him was £177,486, 6s. 9d.”

Thereafter by deed of nomination and submission the respondent Symington nominated as arbiter the said James Falconer; the complainers under protest also nominated an arbiter. The two arbiters accepted office and appointed an oversman.

As to the nature of the freestone rock, the complainers averred, inter alia — “(Stat. 11) The freestone rock within or under the complainers' property was included in the conveyance by which the complainers acquired their property, and is not within the subjects reserved therefrom under and in terms of the Railways Clauses Consolidation (Scotland) Act 1845. The said freestone rock forms the substratum of the soil and is the common rock of the district. It is neither rare nor exceptional, and the respondent's stone quarries are just the same as other stone quarries in the district.”

The respondent (Symington), inter alia, averred—“Explained that the said freestone rock does not form the substratum of the soil and is not the common rock of the district in which the respondent's quarry is situated. On the contrary, it is a fine red sandstone of exceptional character both in point of evenness of grain and composition. Besides being adapted for the finest kinds of building work, it is specially suitable for use in the form of grindstones, and for many other commercial purposes for which ordinary or common sandstone is unsuitable. It is thus of great commercial value. Explained further, that in selling and purchasing respectively the land in question both the sellers and the complainers treated with each other in respect of the said freestone rock on the footing that it was admittedly a mineral within the meaning and for the purposes of the said Railways Clauses Act. The complainers desired to and did purchase only such freestone as was necessary to be dug or carried away or used in the construction of the railway works. They did not purchase, and they paid no compensation for, any portion of the freestone rock now in question. Such rock as that here in question was at that time universally recognised and admitted in the mining and commercial world and by all railway companies, and by all proprietors' in or through whose lands railway companies had occasion to construct railway lines and relative works, to be a mineral within the meaning and for the purpose of the statute. In accordance with the universal practice in cases in which railway companies did not desire to purchase and take such rock under and within the area of lands required for the construction of the railway and relative works, they paid compensation

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for the taking of said area of land on the basis of surface value only, agricultural value, or feuing value, as the case might be. But where railway companies desired, purchased, or took rock under and within the area of land required for the construction of the railway and relative works, they treated with the proprietors expressly therefor, and the basis of the price was entirely different. [Averments were then made of particular transactions in which the proprietors were paid for freestone rock below the formation level of railways.] The complainers have treated and admitted the said freestone rock here in question as a mineral within the meaning and for the purposes of the said Act continuously from the time when they purchased and took the land for the railway down to the time when they gave the respondents the notices dated 12tn December 1907and 17th April 1908, and in and by said notices they not only treated the said freestone rock as a mineral but contracted and agreed to pay compensation therefor as the same might be settled in terms of said Railways Clauses Act and relative Acts of Parliament.”

As to the actings following on the statutory notices, the respondent made the following averments—“Explained that in said notices the complainers, upon a recital of the respondent's foresaid notices, gave notice to the respondent not merely that they desired the said certain areas of freestone rock to be left unworked, but also that they were willing to make compensation therefor in pursuance of the Railways Clauses Consolidation (Scotland) Act 1845, and required the respondent accordingly not to work or get the said areas of freestone rock. In consequence of said statutory notices the respondent accordingly left the said areas of freestone rock unworked. This necessitated extensive variation of his quarrying operations, and thereby entailed loss, damage, and expense to the respondent. Explained further, that when the respondent was in course of working the freestone rock within the area hatched blue upon the plan produced herewith, and particularly that portion thereof which is situated within the railway boundary, the complainers called upon the respondent to remove a crane, employed by him for that purpose, on the ground that it overhung the railway and would be a source of danger to the railway and the traffic thereon. After sundry communings and correspondence between the parties, the complainers, by letter of 29th January 1908 undertook that in any statutory proceedings with reference to any claim of compensation that might be made by the respondent in respect of the area of rock thus reserved by the complainers, the complainers would agree that any loss or additional expense in the working of the quarry through the removal of the crane to another position should be deemed to be loss or damage occasioned by the non-working of the reserved rock, the compensation for which fell to be determined by arbitration between the parties under the statute.”

On 6th December 1910 the Lord Ordinary ( Cullen) pronounced this interlocutor — “The Lord Ordinary having heard parties, before answer, allows them a proof of their averments, …, the respondents to lead in the proof.”

The complainers reclaimed, and argued — There was no relevant averment that the freestone in question was an excepted mineral in the sense of sec. 70 of the Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33). It was authoritatively settled that freestone was not a mineral in the sense of that section — Budhill Coal and Sandstone Company v. North British Railway, 1910 S.C. (H.L.) 1, 47 S.L.R. 23. That case followed upon the Scots cases of Menzies v. Earl of Breadalbane, June 10, 1818, F.C., 1 Sh. App. 225, and Duke of Hamilton v. Bentley, June 29, 1841, 3 D. 1121. The expression “mines of minerals” fell to be interpreted in the same way here as in a general reservation of mines and minerals in a disposition or charter— North British Railway Company v. Budhill Coal and Sandstone Company ( sup. cit.), Lord Chancellor at 1910 S.C. (H.L.) 4, and Lord Shaw at 10. The enumeration of certain specified matters showed that the object of section 70 was to except exceptional matters. Freestone was not an exceptional matter—it was found everywhere, and was the substratum of the soil at the place in question. If, however, the subject was of exceptional quality, then the question arose, was it at the time of the contract regarded as a mineral in the ordinary sense in which the word was used in the mining and commercial world and by landowners — Budhill Coal and Sandstone Company v. North British Railway Company ( sup. cit.); Caledonian Railway Company v. Glenboig Union Fireclay Company, Limited, 1910 S.C. 951 (Lord President at 961, and Lord Salvesen at 963), 47 S.L.R. 823; Magistrates of Glasgow v. Farie, August 10, 1888, 15 R. (H.L.) 94, 26 S.L.R. 229. It must in the first place be relevantly averred that the freestone was exceptional, but the respondent's own notices showed clearly that freestone formed the ordinary substratum of the soil at this place. It was not relevant for the respondent to say that the sandstone was of exceptionally fine quality and composition. It had been decided that that would not do— Menzies v. Breadalbane ( sup. cit.). This being so, the question of opinion at the time of the contract did not need to be considered. (2) The respondent was not entitled to compensation on the ground that the statutory notices constituted a contract entitling him thereto. Notice to leave unworked, coupled with a willingness to pay compensation, did not mean that the complainers conceded the validity of the respondents' title. It left the question of title open, and did not preclude the complainers from disputing the right of the respondents to any compensation whatever— Clippens Oil Company, Limited v. Edinburgh and District Water Trustees, February 22, 1901, 3 F. 1113 (Lord Kinnear at 1127), 38 S.L.R. 354; Campbell v. Mayor and Corporation of Liverpool,

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1870, L.R., 9 Eq. 579; The East and West India Docks Company v. Gattke, 1851, 3 Mac. and G. 155. The respondent could only get compensation if he were the owner of the minerals. It was absurd to suppose that the complainers should have to pay £170,000 for stone that belonged to themselves.

Argued for respondents—The question whether a substance was a mineral or not was a question of fact in each case to be decided by evidence — Caledonian Railway Company v. Glenboig Union Fireclay Company ( sup. cit.) (Lord President at 1910, S.C. 961, Lord Salvesen at 963). Menzies v. Breadalbane ( sup. cit.) did not affect the present case. It was there decided that the sandstone in question was just the ordinary substratum of the soil. The ordinary ground could not be held to be a mineral. That would make a disposition of land a mere farce, as the exception would swallow up the grant. But the present case was different. It was relevantly averred that this fine red sandstone was of exceptional kind. It was true that common blue clay had not been held to be a mineral— Farie v. Magistrates of Glasgow ( sup. cit.)—but china clay on the other hand had been so held— Great Western Railway Company v. Carpalla United China Clay Company, [1910] AC 83—and so had fireclay— Caledonian Railway Company v. Glenboig Union Fireclay Company ( sup. cit.). These last were exceptional kinds of clay; in the present case the freestone was averred to be exceptional. The respondent was therefore entitled to a proof of his averment that the freestone here was an exceptional substance. That being so, the Court had next to determine whether the substance was regarded as a mineral by the mining world, the commercial world, and landowners, at the time when the purchase was effected. It was here averred to be. The respondent accordingly was asking proof of the very things that the House of Lords in the Budhill case considered should be the subject of proof— Budhill Coal and Sandstone Company v. North British Railway Company ( sup. cit.), Lord Chancellor at 1910 S.C. (H.L.) 4, Lord Gorell at 8, and Lord Shaw at 12. Indeed, there must be proof before the Budhill case could be applied. If the complainer's contention were right, he was getting all this valuable freestone for nothing. He had not paid for it on purchase. (2) The complainers had bound themselves by the statutory notices to pay compensation. It was an unqualified contract. Campbell v. Corporation of Liverpool ( sup. cit.) and East and West India Docks v. Gattke ( sup. cit.) were not in point. They were cases under the Lands Clauses Act, where the notice to treat was quite different. Lord Kinnear's dictum in Clippens Oil Company v. Edinburgh and District Water Trustees ( sup. cit.) was merely obiter; Glasgow and South-Western Railway Company v. Bain, November 15, 1893, 21 R. 134, 31 S.L.R. 98, was also referred to.

At advising—