Scottish Court of Session Decisions

This was an action at the instance of John & James Wilson, coalmasters, Glasgow, against James Waddell, also a coalmaster in Glasgow, concluding for £2000 damages, and further, that the defender should be ordained to make such operations in or on the ground in which he carried on his coal-workings as to carry off the surface-water from the ground, and thereby prevent its passing through the same into the defender's workings, and thence into the pursuers' coal-workings; or otherwise, that the defender should be ordained to remove the surface-water from the pursuers' coal-workings by pumping or in some other way.

Both parties held leases from Mr Houldsworth of Coltness, of coterminous parts of the same coalfield. The def ender's lease had extended from 1855, while the pursuer's began in 1860. The portion of the coalfield tenanted by the defender was upon the rise, and that tenanted by the pursuer upon the dip. The Caledonian Railway passed between the two collieries. The pursuers were taken bound by their lease not to work “within five yards of the boundary of the subjects let, or of the Caledonian Railway,” and the defenders were likewise bound not to work “within five yards of the boundaries of the subjects.” This limitation insured at least forty yards of ground between the two collieries. The pursuers, by agreement with the landlord, exceeded the limitation in the lease, and worked nearly through the barrier.

The following were the material averments of the pursuers, and the defender's answers: — (Cond. 3) The defender's operations in working out his coals have caused the ground above the same to subside over an area of about five acres, and the said subsided ground forms a basin into which surface-water from an area of about twenty acres falls; and the said water. having no other escape, owing to the failure of the defender to make provision for its passing on, passes down through the said ground by means of breaks, holes, or sits in the same, caused by its having subsided as aforesaid into the coal-workings or wastes of the defender, in which it collects, and thence through the barrier or wall foresaid into the foresaid mines or coal-workings of the pursuers. The said surface water consists to a large extent of water which, but for the said breaks, holes, or sits, would not come upon the said five acres. The defender has no right of servitude or otherwise in respect of which he is entitled to pass on the water as foresaid into the workings of the pursuer, and he is bound to provide for its passing over the surface of the said five acres, by making surface repairs, constructing surf ace drains, or other means, and providing pillars or other supports of the said surface in his mines. Further, the defender is bound under the terms of his tenancy to work out his coals as near the outcrop as can be done consistently with keeping up the surface, to work his pumps and bring them on air daily,

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so as to prevent as much as possible water coming through into the pursuers' working, and to form and leave sufficient pillars under all water on the surface; and he has failed to implement his said obligations, and in consequence of his said failure the water foresaid comes into the said workings of the pursuers.

(Ans. 3) Denied, subject to the explanation, that at the extreme rise of the defender's field the ell coal crops out, and that in working it to the outcrop, where the roof became thin, slight falls or holes in the surface occurred prior to Martinmas 1874; but these did not, and do not, receive water to any extent beyond the direct rain-fall or ordinary surface-water. Similar falls or holes have occurred on the surface over the workings of the Coltness Iron Company, and of Messrs Boyd and Simpson before referred to. The defender was entitled and bound under his lease from Mr Houldsworth, the common landlord of the pursuers and the defender, to work out the ell coal-seam to the outcrop, and his whole mineral workings and relative operations were conducted in conformity with his lease, in the ordinary and proper mode, and with due and reasonable care. By agreement between Mr Houldsworth and the defender, dated 28th February 1870, Mr Houldsworth bound himself to free the defender of all damages from infallen holes at the outcrop.

(Cond. 4) During and since the year 1872 the said water has been coming, as described, into the pursuers' workings foresaid, whence the pursuers have had to pump it back to the surface—a height of 100 fathoms or thereby, and that by means of an engine working underground pumping the said water up from their dook-workings to the pit bottom, whence it is pumped to the surface by means of another engine working at the pit mouth. The pursuers have all along complained to the defender of the said surface water coming into their workings; and in particular, in the beginning of 1874, they called his attention to the matter through their agent, who at the same time intimated their right to compel the defender to prevent the injury, and their title to damages from him for injury already done. Notwithstanding the representations of the pursuers, however, the defender refuses, or at least delays, to prevent the said water passing into the pursuers' workings foresaid. “(Ans. 4) Admitted that a complaint was made by the pursuers in January 1874; and explained that the landlord Mr Houldsworth then cut a cross ditch for the purpose of preventing as far as possible, water from finding its way into the falls or sits. Quoad ultra denied.”

The pursuers pleaded—“(1) The pursuers having suffered loss, injury, and damage through the fault of the defender, as condescended on, they are entitled to reparation. (2) The sum concluded for as reparation being just and reasonable, the pursuers are entitled to decree, as concluded for. (3) The defender being bound to prevent the surface-water in question coming into the mines or coal-workings of the pursuers, the pursuers are entitled to decree, in terms of one or other of the alternative conclusions of the libel. (4) The defender being bound to prevent the surface-water in question coming into the mines or coal-workings of the-pursuers, the pursuers are entitled to decree as concluded for, for amount of expenses incurred by them in removing from their said workings any such said water coming into the same on or after the date of citation herein.”

The defender pleaded—“(1) The pursuers' averments are not relevant or sufficient to support the conclusions of the summons. (2) The defender not having been in fault in reference to the matters complained of, he is entitled to be assoilzied. (3) The defender's operations having been conducted in the ordinary and proper mode, and with due and reasonable care, the action cannot be maintained. (4) The defender's operations having been carried on in accordance with his powers and obligations under a lease from the common landlord of the parties, granted prior to the pursuers' lease, there are no grounds of action against the defender. (5) The influx of water complained of being due to the pursuers' own operations, the defender is entitled to be assoilzied.”

On 8th June the Lord Ordinary allowed a proof before answer, and the result of the evidence appears from the opinions of the Judges.

The Lord Ordinary pronounced this interlocutor:—

6 th July 1875.—The Lord Ordinary having taken the proof and heard counsel for the parties on the proof and whole cause, Assoilzies the defender from the conclusions of the summons, and decerns: Finds the defender entitled to expenses, and remits the account thereof when lodged to the Auditor to tax and to report.

Note.—The averments which the pursuers undertake to prove are contained in the third article of their condescendence as amended. The relevancy of these averments was discussed when the case was heard in the Procedure Roll, and before answer a proof was allowed. The proof has now been led; and the result, in my opinion, is that the pursuers have failed to prove their averments, so that any decision as to their relevancy is unnecessary.

“Before considering the proof, it may be expedient to state what appears to me to be the general legal principles upon which cases like the present should be decided. No better exposition of the law can be found than in the passage from Erskine (ii. 9, § 2):—“Where two contiguous fields belong to two different proprietors, one of which stands upon higher ground than the other, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive the water that flows from the superior. If the water, which would otherwise flow from the higher ground insensibly without hurting the inferior tenement, should be collected into one body by the owner of the superior in I the natural use of his property for draining his lands or otherwise improving them, the owner of the inferior tenements, without the positive constitution of any servitude, is bound to receive that body of water on his property, though it should be damaged by it, but as this right may be overstretched in the use of it, without necessity, to the prejudice of the inferior ground, the question, how far it may be extended under peculiar circumstances, is arbitrary.” In the case of Campbell v. Bryson, the present Lord President (then Lord Justice-Clerk), in commenting upon the doctrine of Erskine,

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says:—‘Now, I think we have here not only a statement of general doctrine applicable to the case in hand, but we have also a very careful statement of what is the proper qualification of that doctrine. In the last sentence of the passage that I have read he says that it must in every case be an arbitrary question how far this right is to be stretched under the particular circumstances—that is to say, if the inferior heritor complains that the superior heritor is unduly pressing his right, and making the servitude intolerable to him, he will have the right to come to the Court with his complaint, and the Court will be entitled to regulate the matter between the two upon equitable terms. This is the true meaning, I apprehend, of the qualification which Mr Erskine adjects to the general statement of the doctrine, and to the doctrine with that qualification I unhesitatingly subscribe.’ It maybe that Erskine was dealing principally with questions of surface-drainage; but there seems no reason why a principle applicable to surface-water, and to operations upon the surface of land, should not be applied to operations under ground and to water which is found there. And accordingly, I find that the principle has been adopted in several cases in England as the rule for decision. The first of these cases is Baird v. Williamson, 13th November 1863, 16 C. B. 376 (N. E.) There the defendant pumped water out of his mine, which was the upper mine, into a level trough, whence it flowed into the plaintiff's mine, which it never could have reached but for the pumping. In deciding the case, Erle, C. J., said:—‘The owners of the higher mine have a right to work the whole mine in the usual and proper manner, for the purpose of getting out any kind of mineral in any part of that mine; and they are not liable for any water which flows by gravitation into an adjoining mine from works so conducted. We think that the law was correctly laid down to that effect in Smith v. Kenrick.’ Then he goes on to contrast that case with an operation of man made for the purpose of introducing foreign water on his own lands, and he goes on to say:—‘The defendants, as occupiers of the higher mine, have no right to be active agents in sending water into the lower mine. The plaintiffs, as occupiers of the lower mine, are subject to no servitude of receiving water conducted by man from the higher mine. Each mine-owner has all rights of property in his mine, and among them the right to get all minerals therefrom, provided he works with skill and in the usual manner. And if, while the occupier of a higher mine exercises that right, nature causes water to flow to a lower mine, he is not responsible for this operation of nature.’

Now, in the case of Smith v. Kenrick, 14th February 1849, 70. B. 515, which was thus adopted by the Court in Baird, v. Williamson, an upper owner had worked out his coal, though he knew that the water from his workings must of necessity flow into his neighbour's through holes which his neighbour had made in his own coal. He was held entitled to do that; and Cresswell, J., said—‘It would seem to be the natural right of each of the owners of two adjoining coalmines, neither being subject to any servitude to the other, to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine, so long as that does not arise from the neglect or malicious conduct of the party.’

Then, in Hylands v. Fletcher, July 1868, English and Irish App. (H. L.) L. R., vol. iii. p. 330, which contains the most authoritative exposition of the law, the defendant had made an artificial reservoir on his ground, and brought the water into his workings, whence it flowed into his neighbour's; and he was held responsible for that. In giving judgment, Lord Chancellor Cairns said—‘The principles on which this case must be determined appear to me to be extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might, in the ordinary course of the enjoyment of land, be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or under ground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so by leaving, or by interposing some barrier between his close and the close of the defendants, in order to have prevented that operation of the laws of nature.

As an illustration of that principle, I may refer to a case which was cited in the argument before your Lordships—the case of Smith v. Kenrick, in the Court of Common Pleas.

‘On the other hand, if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use—for the purpose of introducing into the close that which, in its natural condition, was not in or upon it—for the purpose of introducing water, either above or below ground, in quantities and in a manner not the result of any work or operation on or under the land; and if, in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape, and so pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing, they were doing at their own peril; and if, in the course of their doing it the evil arose to which I have referred—the evil, namely, of the escape of the water, and its passing away to the close of the plaintiff, and injuring the plaintiff—then, for the consequence of that, in my opinion, the defendants would be liable. As the case of Smith v. Kenrick is an illustration of the first principle to which I have referred, so also the second principle to which I have referred is well illustrated by another case in the same Court—the case of Baird v. Williamson, which was also cited in the argument at the bar.’

The next two cases (to which I do not think it necessary to refer more particularly, because they are merely illustrations of these principles) are— Crompton v. Lee, 4th November 1874, 19 Equity Cases, L. R., 115; and Smith v. Fletcher, 11th February 1874, 9 Exchequer Cases, L. R., p. 64—the question in the latter case being left to the jury, whether what was done by the defendants was done by them in the ordinary, reasonable, and proper mode of working the mine.

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‘The main question, therefore, in the present case is—Were the operations of the defender conducted by him in the usual, reasonable, and proper mode of working his mine? I think that after the evidence of Mr Landale, one of the witnesses for the pursuers—and the evidence, indeed, of all the witnesses—it is impossible to say that the workings of the ell coal at the out crop (because that is said by the pursuer to be the origo mali) were not done in the usual, reasonable, and proper, and indeed, as Mr Landale says, in the necessary manner. It was an obligation imposed upon the defender in his lease that he should work out his coal to the out crop; and Mr Landale, who superintends these matters for Mr Houldsworth, the landlord, seems to have gone with him to the ground and arranged that it should be worked out in this particular manner, which he says was the usual manner of working it out. The object of both landlord and tenant was to get as much coal as possible, and the only way of doing so was by removing the pillars. Owing to the proximity of the out crop of the coal to the surface, and the friable nature of the roof, it was impossible to take out every pillar—or at least to take out every pillar in its order—and the consequence was, that some pillars remained while the ground crushed in round about them. That resulted in inequalities, and in some instances in holes, in the surface of the ground. I think the pursuers have undoubtedly proved that, through the sits thus occasioned, water to some extent found its way into the defender's mine. But I do not think it is proved that very much found its way there, and Mr Landale is clear that little or none of that water found its way into the pursuers' mines. Still, I think that some of the water did find its way to the pursuers' mines, and the pursuers are entitled to the benefit of that consideration, whatever it may be worth. I think, however, that the pursuers have failed to prove that any water entered the sits except what fell upon the surface of the subsided ground in the shape of rain or snow. It therefore appears to me that, so far as regards the mining operations of the defender, they are proved to have been usual, reasonable, and necessary operations, and to have been performed in the usual and proper course of working this mine. There does not appear to me to be any proof whatever of anything like cemulatio vicini in his working, or of any undue interference with the rights of his neighbour Mr Wilson. No doubt Mr Landale said it would have been more neighbourly if he had deferred the excavation of the pillars at the douk or lower part of the ell coal waste, where the Caledonian Railway forms the barrier between the fields of the pursuers and defender, until a later period of his lease; but Mr Landale also admitted that there was no impropriety in working it out in that way—that it was a very tempting piece of coal to take out—and that he (Mr Landale), who regularly inspected the workings on behalf of Mr Houldsworth, the common landlord of the pursuers and defender, never objected to it, but, on the contrary, was quite satisfied with the Way in which the defender had conducted the operations as tenant. I therefore think that the proof is in favour of the defender upon that matter. He has not, in my opinion, overstretched his rights; indeed, everything seems to have been done by the defender which he was bound to do—and even more, because he seems to have taken certain precautions to prevent, so far as possible, the surface-water from higher ground from going down to the pursuers' coal-field. The catch-drain, to which many of the witnesses refer as having been made immediately above the sits at the out crop of the ell coal, appears no doubt to have been made by the landlord; but that, I suppose, was done by arrangement between the landlord and the defender. And it certainly prevented a great deal of water from flowing down which would naturally have flowed down into those sits, but which must have been carried away by the catch-drain, and so been kept out of the sits. But, besides that, I think there can be no doubt that a considerable part of the water in the defender's ell workings, from whatever source it comes, is carried off into a lodgment, which has been referred to, at the side of the pit No. I., and from that it finds its way down to the defender's main coal, whence it is pumped up to the surface and carried away entirely from the pursuers' mine.

But even assuming that the whole of the surface-water which finds its way through the sits into the defender's ell workings is not so disposed of, and that a part, or even the whole, finds its way into the pursuers' coal-field, the question remains—Is there any duty upon the defender to do anything more? Is it his duty either to fill up the sits which have been made, or to take the water which enters by these sits into the bottom of his own works, and then pump it up again If Now, I do not see any duty incumbent upon him to fill up the sits. The object of filling up sits is, in the general case, to restore the surface so that it may be used again for agricultural purposes. But that is a matter in which the tenant of the coal has no interest, unless the landlord and the tenant of the surface require the restoration. In a coal-field adjoining the defender's, belonging to the same landlord, and tenanted by a person named Boyd, it has been proved that sits were filled up, but that the landlord and his mining engineer came to the conclusion that it was a mistake to do so, and that it was better for the sake of the estate to leave the ground as it had fallen in, and to plant it. And accordingly they resolved that the sits on the defender's coal-field should not be filled up. But, apart from this, I can see no obligation upon the tenant of the Coal-mine, who has done his duty under the lease in working his coal out to the out crop, to do anything in the way of restoring the surface, if his landlord does not call upon him to do so; and if water finds its way in by the operations of nature—the water from the heavens, for really, I think, that is all that is proved to come in this particular case—if it finds its way into the inner workings in that manner, that is just the result of the proper working of the mine, and the defender is not to be held responsible for it. Nor do I see any reason for calling upon him to pump out water which does his own workings no harm, and does not interfere with his winning the coal. He does, as I have said, all that is necessary for his own purposes, and in the usual and proper manner; and that, I think, is all that he is bound to do.

It is right to say that Mr Landale, whose testimony is entitled to great weight in this case, is

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of opinion that of the water which finds it way from the defender's ell workings into the pursuer's coal-field a very small quantity is surface-water, and that the bulk of it is the natural product of the coal and surrounding strata, and that he attributes the influx of water not to the sits at the out-crop, which the pursuers blame, but to the removal of the pillars in the defender's waste at the dip of the ell workings, 46 fathoms underground, an operation which the defender was quite entitled to perform. It is, further, not immaterial to observe that the alleged increase of water in the pursuers' mine was contemporaneous not only with the sits caused by the defender working out his ell coal at the outcrop, but also with the pursuers' own operations, by which they excavated a large portion of the coal under the Caledonian Railway, which by their lease was intended to form a barrier between their coal-field and that of the defender. Mr Landale no doubt thinks that enough coal was left to form a sufficient barrier, but very many of the other witnesses are satisfied that if the pursuers had not wrought out the coal under the railway little or no water would have permeated to their mine.

“On the whole, I think that the pursuers have failed to prove their averments, and that the defender must be assoilzied, with expenses.”

The pursuers reclaimed.

Argued for them — The proprietor of an estate was not entitled to drain his surface and then allow the drainage water to flow into a coal mine; and the same principle applies here. In Campbell v. Bryson the Lord Justice-Clerk went largely upon the ground that the damage done was very slight indeed. There the water dealt with was in ta reasonable drainage flow, but the question came to be whether the superior proprietor was entitled first of all to drain his land in the ordinary way into a ditch, and then afterwards to drain it again into the workings below the land by removing the coal and thus to give the water access to the lower workings. This was a diversion of the natural flow of the water, whether there were drains or not. The law, as stated in Stair ii. 7, 8, was precisely that on which the claim of damages was based, for there was a distinction between the operation of the laws of nature and other works.

Argued for the defenders—No sound distinction could be drawn between underground water and water which came into a mine from the surface in consequence of the reasonable and proper working of that mine. The authorities showed that a distinction was taken between a body of water either above or beneath the surface flowing in a known regular channel and water not so flowing, and a person tapping such a regular stream would be in a very unfavourable position. The distinction recognised in the authorities was not between surface and subterranean, but between gathering and flowing water. The true position of the defenders was this—(1) That in taking out the coal they were making a natural use of their property; (2) they were so doing for their own benefit—not maliciously for the purpose of drowning out their neighbours; (3) their operations had been conducted with reasonable skill, and in the ordinary way. The position of the pursuers was very much less favourable than if this had been a litigation between adjoining proprietors. The cases referred to on the other side were those of feuars, and thus ab initio different. This was the case of one proprietor who could deal with different parts of his property as he thought fit, and he had given the defenders a right to work up to the surfaces and even to bring the surface down.

Reclaimer's authorities — Campbell v. Bryson, Dec. 16, 1864, 3 Macph. 254; Erskine, ii. 9, 2; Stair, ii. 7, 8; Digest, xxxix. 3, 13; Cowan v. Kinnaird, Dec. 15, 1865, 4 Macph. 236; Smith v. Kendrick, 7 C.B. 515; Baird v. Williamson, 15 C.B. 376 (N.E.); Rylands v. Fletcher, 3 L. R. (Eng. and Irish App.) 330; Smith v. Fletcher, 9 L.R. Ex. 94; Crompton v. Lee, 19 L.R. Eq. 115; Brand $ Son v. Bell's Trs., Nov. 6, 1872, 11 Macph. 42.

Respondent's authorities — Aikin v. Dewar, Bell's Illustr. vol. ii. 119; Elch. (Property), 1, 1764; Baird (and Erle, C.J., there), 15 C.B. 376, (N.E.); Acton v. Blundell, 1843, 12 M. & W. 324, (and Tyndall, C.J., there); Ross v. Taylor, 1855, 11 Exch. Hulrston & Gordon, 369; Broadbent v. Ramsbotham, 11 Exch. H. and G. 602 (and Alderson, B., there); Chasemore v. Richards, 7 H. L. cases, Clark's Repts. 349 (and Lord Chelmsford there); Samuel v. Edin. & Glasgow Ry. Co., Dec. 12,1850, 13 D. 312; Wood v. Wand, 3 L.R. Exch. 771; Taylor, 11 Exch. 369 (and Park, B. there); Irving v. Leadhills Mining Co., Mar. 11, 1856, 18 D. 833.

At advising—