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SCOTS LAW TIMES
PUBLISHED BY W. GREEN & SON, LIMITED, AT THE OFFICE
2 AND 4 ST GILES STREET
JUL 11 56
JUDGES OF THE COURT OF SESSION DURING THE PERIOD OF THE REPORTS IN THIS VOLUME.
1926, SCOTS LAW TIMES
W. R. GARSON; MAURICE J. KING, M.A., LL.B.;
NOTE.-Cases in this volume may be cited 1926, S. L.T.
Campbeltown Coal Co. Ltd. v. Duke of Argyll, 1926, S.L.T. 2.
The Campbeltown Coal Co. Ltd. applied to the Railway and Canal Commissioners under the Mines (Working Facilities and Support) Act, 1923, for the grant of the right to work certain minerals in accordance with the provisions of section 1 of the said Act and for the grant of certain ancillary rights in accordance with the provisions of section 3 of the said Act. The applicants were tenants of minerals under a lease dated 16th and 25th June 1900, granted by the then Duke of Argyll as heir of entail in possession of the lands. The lease was for a period of twenty-eight years from and after the term of Whitsunday 1899.
In 1905 the parties entered into a minute of agreement which provided, inter alia:
First: As soon as the proposed new railway is completed, or, at least, working from the colliery to the harbour at Campbeltown, the first party as heir of entail foresaid shall accept a renunciation of the said lease of the colliery and grant a new lease thereof to the second parties for the period of thirty-one years from the date of the opening of the railway to the harbour upon the whole terms and conditions of the said present lease, except in so far as altered by this agreement or by the mutual agreement of parties.
The railway from the colliery to Campbeltown Harbour was opened in 1907, but no renuncia
tion of the lease of 1900 was tendered by the applicants and no new lease was granted by the Duke.
In 1914 the granter of the lease died and was succeeded as heir of entail by the objector in the present application.
The circumstances under which the application was brought was thus narrated by the ex-officio Commissioner (Lord Blackburn):
Now, under the Act, there are two quite distinct powers which we are authorised to give on being satisfied that they are required in the national interest. The first is a power to work minerals which the applicant has himself no legal right to work; but if he is in a position to work these minerals, and it is desirable in the national interest that they should be worked, then we can give him the legal right to work the minerals. That is the power conferred by section 1 of the Act, and the principal consideration which in that section we are directed to keep in mind is that, if the powers are not granted, there is a danger of the minerals being left permanently unworked. Then by section 3 we are authorised to confer an entirely different power. That is a power to give the applicant what is described as an ancillary right, and the section applies to cases where the applicant has himself the right to work certain minerals but he is prevented from working. them in what he thinks is the most proper and efficient manner by some obstacle, it may be physical him an ancillary right to overcome. or contractual, which he desires that we should give In that section there is no reference to the risk of the minerals being left permanently unworked, but the power may be given where the purpose is that the minerals should be worked properly and conveniently. Both these powers, which are entirely different, are subject to the provisions of section 6 that the Court must be satisfied not only that the requirements in the Act have been complied with, but that it is expedient in the national interest that the right applied for should be granted; and if we are satisfied about that, then we can proceed to make the grant.
Now, in this case the applicants ask us to confer both these powers upon them. They are tenants under a lease from the Duke of Argyll, and in terms of that lease they are prohibited from entering a certain area of the minerals situated under a farmhouse. The object of the prohibition was obviously to protect the farmhouse from subsidence, but the existence of the prohibition prevents the applicants from winning the coal in the prohibited area. They further ask that we should give them power to traverse the area to enable them to work minerals
which have been let to them under the lease, and which they say can be worked most properly and conveniently by means of an access through the prohibited area.
On 16th July 1925 the Railway and Canal Commissioners dismissed the application.
Co. Ltd. v.
of the lease and of new to grant a fresh lease to run 1st Div.
Lord Blackburn [after the narrative quoted above
This question of the duration of the lease is involved in the Scotch law of entail. The powers of an heir of entail as to granting a lease which will be binding on a succeeding heir of entail are limited, and in the case of a lease of minerals he only has power to grant a lease for a period of thirty-one years. Any lease beyond that period would not be binding on the succeeding heirs of entail. Now, in the present case, a lease to the applicants' authors, which is dated in 1899 and which terminates in the year 1927, was granted by an heir then in possession, but who died in 1914. That I shall refer to as the principal lease. There is no question at all that that is a lease which was binding upon the succeeding heirs of entail and binding upon the objector. The only reason that an heir of entail in possession cannot grant a lease binding upon his successors of longer duration than the thirty-one years fixed by statute is that by so doing he would be held to be alienating the estate and consequently to have incurred an irritancy of the fetters of entail. Now, while an heir in possession cannot alter the terms of an existing lease so as to make it run for more than thirty-one years, I entertain no doubt that he may alter its terms by minutes of agreements with his tenant in so far as the terms altered cannot be characterised as an alienation of the estate. That is to say, he may alter the rent by agreement with the tenant, and the alteration, if bona fide and an act of ordinary management, would be binding upon his successors. He might alter the conditions of working in the same way, and such an alteration would be binding upon his successors. But he cannot, in my opinion, so long as the lease subsists, extend its duration beyond the statutory period so as to be binding upon his successors, because that might amount to an alienation of the property. If an heir of entail, who has granted a lease for the period to which he is entitled to grant it, wants to extend the right to his tenants, the only course by which he can make the new lease binding upon his successors is to accept from the tenant a renunciation
It was argued for the appellants that this minute must be read along with the principal lease, and that in respect that certain other terms of the minute have been acted upon by both parties (the present heir in possession and the tenants themselves), it must be held that the objector has homologated the terms of the minute and that they are entitled to insist on his implementing the obligation to grant a new lease undertaken by his predecessor to the tenants. Now, the other clauses in the minute of agreement which have been implemented by the present heir of entail make alterations upon the terms of the principal lease of the character which, as I have already indicated, an heir in possession may make to an existing lease so as to become binding upon the succeeding heirs. They refer to payment of rent and they refer to methods of working, and are such as might quite well be incorporated into the principal lease and form a binding contract upon the succeeding heirs of entail. But, in my opinion, the obligation to grant a new lease undertaken in the first provision in the minute of agreement could not possibly be made obligatory upon the succeeding heirs unless the special conditions which it anticipates, namely, the renunciation of the principal lease and the granting of a new lease, had been given effect to during the lifetime of the late heir. I cannot help thinking that the advisers of the late heir of entail were well aware of that when this minute was entered into, because in distinction to all the leases (and there are several other leases granted by him to these same tenants), in distinction to the terms of all the other leases (where he binds himself and his heirs succeeding in entail), in this particular minute of agreement he binds himself and nobody else, and this clause which he entered into was an obligation which he was at liberty to discharge at any time, and could have been obliged to discharge during his life if the tenant had renounced the lease and asked for