Scottish Court of Session Decisions

This was an action of suspension and interdict at the instance of the most Reverend Angus Macdonald and others, trustees for the Roman Catholic Church in the Archdiocese of St Andrews and Edinburgh, against Mr John Welsh, S.S.C., Edinburgh, and others.

The complainers were the heritable proprietors of the house and lands of Mount Vernon, at Liberton, near Edinburgh, and the respondents were the proprietors of the coal on Mount Vernon, and the assignee of his mineral rights.

The complainers craved the Court to interdict the respondents “from boring for coal or in any way opening the ground, and from depositing materials on any portion of the close or gardens of the complainers' mansion-house of Mount Vernon.”

The Lord Ordinary ( Moncreiff), after a proof, on 6th March 1896 granted interdict.

The questions raised in the action and the purport of the proof are sufficiently indicated in his Lordsnip's opinion, infra.

Opinion.—“The original feu-charter by which the complainers’ predecessors acquired the lands in the immediate neighbourhood of Liberton, which are now called Mount Vernon, was granted to Joseph Cave by George Lord Rosse, therein designed Master of Rosse, on 11th September 1728. The granter reserved the coal of the lands disponed by the following reservation—‘But excepting and reserving always to me, the said George Master of Rosse, and my heirs and successors, the whole coall of the lands hereby disponed, and declaring that it shall be free leisum and lawful to me and my foresaids to search for, work out, and dispose of the said coall, we always paying and satisfying all dammadges which the said Joseph Cave or his said son, or his foresaids, shall sustain thereby; and provided that, in searching for or working said coall, we do not shank or open the ground within the house, office-houses, closs, or gardens, to be built or made upon the said lands by the said Joseph Cave, or his said son, or his foresaids, for their own proper dwelling.’

It will be seen from the terms of the reservation that the lands were bought for the purpose of erecting and making a dwelling-house, offices, and gardens.

The respondents are now proprietors of the coal, and the complainers proprietors of the surface and other minerals. The respondents have recently proceeded to bore for coal at a spot within 13 yards of one of the main entrances of the mansion-house. The complainers seek to have them

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interdicted from doing so, on the ground that they are within the excepted area; and the question which I have to decide is whether this is so or not.

The history and character of the ground in which the borings complained of were made clearly appears from the proof and Elan. The mansion-house of Mount Vernon as two main entrances, one to the north or front, and one to the south or back. The one to the back is not the servants' entrance; it is one of the main doors of the house, and some of the windows of the public rooms look to the south. Immediately to the south of the house a footpath runs parallel with the house, and on the farther side of the footpath is the piece of ground in question. It is about a quarter of an acre in extent, and has been made up and levelled probably in order to be used as a bowling green. In former days, as now, such a piece of ground was an invariable adjunct to a country house. I should have explained that the green or lawn is surrounded by a fringe of shrubs and trees, among which flowers have been at one time planted, some of which survive. The whole enclosure is surrounded by an old holly hedge. There is no evidence that the ground was ever used except as pleasure ground, except that when the house was unoccupied by the family the caretaker seems to have used it as a washing green for her own purposes. It is said that at one time a line of cedars stood between the house and the bowling green; and it is suggested that they were planted for the purpose of screening the house from the green. I think the truth is, that the cedars were planted for ornament, but being rapidly growing plants, they grew so high as to darken the windows and obscure the view, and were accordingly cut down by Mr Lockhart Thomson's orders. Lastly, there is no evidence that, until recently, any flowers were ever planted on the bowling green itself. There are flower beds on a similar plot of ground immediately to the east of the mansion-house; and recently, one or two flower beds have been formed between the bowling green and the footpath. The kitchen-garden and vineries, which are walled in, he a little distance to the east. The green or lawn in question is quite different from the fields or paddocks to the north and south of the house, as to which there is no dispute.

This being the description of the green or lawn in which the respondents claim right to bore, the question is whether it does or does not fall within the terms of the exception in the titles.

The words within which this piece of ground must be brought are, ‘The house, office-houses, closs, or gardens to be built or made on the said lands.’ The plain object of the exception was to secure the privacy and comfort of the dwelling-house and its immediate precincts. It is quite plain that to permit boring or shanking at the spot in question would make residence in the house intolerable or impossible. At the same time, it is necessary to see whether the ground in question can by reasonable construction be brought within the terms of the exception. The words which are said to cover it are ‘closs and gardens.’ The Scotch word ‘closs’ rather suggests a yard enclosed by the offices or the wings of the mansion-house itself, or a back-yard enclosed with a wall. In England the word ‘close’ or ‘curtilage’ would probably cover a piece of ground like this, these words meaning and including a courtyard or a piece of ground lying near or belonging to a dwelling-house, such as a back-green or a strip of ground lying between the house and the street. There is a good deal to be said for the view that the piece of ground which I have described is so closely connected with the house as fitly to fall within the description ‘closs.’ But it is unnecessary to decide this, because there is another word which perhaps more appropriately applies to the green, and that is the word ‘gardens.’ It is to be observed—and this is material—that the word is plural and not singular, and therefore I think it must be liberally construed as including all made and ornamental ground in the immediate vicinity of the house which can fairly be held to come within that description. Now, a garden is not necessarily composed entirely of flower beds; it is not complete without a certain extent of ground kept in grass. Indeed, some people instead of planting flowers prefer to keep the ground adjacent to the house entirely in grass. But it does not, I apprehend, for that reason, cease to be garden ground in a reasonable sense of the word. It requires as much trouble and expense, if not more, to keep it mown and in order.

I therefore think that, giving a fair meaning to the terms of the exception, they must be held to cover the ground in question.

In coming to this conclusion I have not disregarded the contention that in construing the exception the word ‘gardens’ must not be taken in its widest signification. The ‘gardens’ referred to are not public gardens; and I think it must also be conceded that the owner of the surface could not, by laying out and planting flowers on the whole or a large part of the surface, exclude the owner of the coal. ‘Gardens,’ in the sense of the title, means gardens which are suitable and appropriate to a dwelling-house of the kind; and such I take the piece of ground in question to be.

The respondents maintain that the exception does not apply to boring; that boring is not ‘shanking’ or ‘opening the ground.’ I do not think that this is a fair interpretation of the words as used. What the granter of the charter binds himself not to do is not to shank or open the ground within the excepted premises, not merely in working the coal, but also in searching for it; provided that, ‘in searching for or working said coall we doe not shank or open the ground,’ &c. Therefore, while the terms ‘shanking’ and ‘opening the ground’ may not usually be applied technically to boring, I think that the words as used in this deed are wide enough to cover, and do cover, boring.

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It is said that boring is a simple and inoffensive operation. It is not always so. If coal is not quickly struck, or if the ground is difficult, it may take several months, and cause much inconvenience by noise and the accumulation of rubbish. To conduct this operation within 13 yards of the main door of a house must plainly cause much discomfort and inconvenience to the inhabitants, if it does not render their occupation of the house impossible. I apprehend that it was to protect the owner of the house from such a disturbance that the exception was inserted in the feu-charter.

In the view which I take it is not necessary to consider whether, assuming that the ground in question is not within the excepted area, the respondents did not act emulously in boring where they did.

The result is that I shall interdict the respondents from boring, opening the ground, depositing materials, or trespassing within or upon what has been called the lawn or green in question opposite the south entrance of the mansion-house. The remainder of the prayer for interdict is too wide and indefinite.”

The respondents reclaimed, and argued—(1) The operation complained of was not covered by the exception in the feu-charter. The expressions “shanking” or “opening the ground” did not apply to such an operation as boring, which was a simple and inoffensive operation. (2) The operations had not been conducted within the prohibited area, the place not being a “close or garden.” (3) The rights of parties having been defined by contract, the question could not be governed by the general law of neighbourhood.

Argued for complainers—The reclaimers had worked within the prohibited area by means of searching from above, which was expressly included in the exception. Even if the expression used were ambiguous, by the ordinary interpretation the granter of the feu had undertaken to protect the grantee, and the Court would not go back upon this protection. (2) The spot where the work was going on fell clearly within the prohibited area. (3) In any case, by the general law of neighbourhood the reclaimers were prohibited from exercising their rights of property so as to injure their neighbours. The reserved right to the coal was only a right of servitude which must be exercised without causing unnecessary inconvenience.

At advising—