THE SCOTS LAW TIMES REPORTS 1926 EDINBURGH PUBLISHED BY W. GREEN & SON, LIMITED, AT THE OFFICE 2 AND 4 ST GILES STREET REPORTS 192 6. SCOTS LAW TIMES ' REPORTED BY W. R. GARSON; MAURICE J. KING, M.A., LL.B.; T. GRAINGER STEWART; A. H. D. GILLIES, B.A., LL.B.; ADVOCATES. 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. - REPORTS 1925. 1st Div. tion of the lease of 1900 was tendered by the applicants and no new lease was granted by Campbeltown Coal (The Lord President, Lords Skerrington, the Duke. Co. Ltd. v. Cullen, and Sands.) In 1914 the granter of the lease died and was Duke of succeeded as heir of entail by the objector in Argyll. 14th November 1925. the present application. November 14, The circumstances under which the applica1. Campbeltown Coal Company Limited tion was brought was thus narrated by the v. Duke of Argyll. ex-officio Commissioner (Lord Blackburn) : Landlord and tenant- Lease — Constitution — Written Now, under the Act, there are two quite distinct obligation to grant lease Rei interventus--Under- powers which we are authorised to give on being that they should be worked, then we can give him the legal right to work the minerals. That is the Appeal from the Court of the Railway and power conferred by section 1 of the Act, and the Canal Commissioners. 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 The Campbeltown Coal Co. Ltd. applied to left permanently unworked. Then by section 3 we the Railway and Canal Commissioners under are authorised to confer an entirely different power. the Mines (Working Facilities and Support) That is a power to give the applicant what is described Act, 1923, for the grant of the right to work as an ancillary right, and the section applies to cases certain minerals in accordance with the pro- where the applicant has himself the right to work visions of section 1 of the said Act and for the certain minerals but he is prevented from working grant of certain ancillary rights in accordance them in what he thinks is the most proper and with the provisions of section 3 of the said Act. efficient manner by some obstacle, it may be physical The applicants were tenants of minerals him an ancillary right to overcome. or contractual, which he desires that we should give In that section under a lease dated 16th and 25th June 1900, there is no reference to the risk of the minerals being granted by the then Duke of Argyll as heir of left permanently unworked, but the power may be entail in possession of the lands. The lease was given where the purpose is that the minerals should for a period of twenty-eight years from and be worked properly and conveniently. Both these after the term of Whitsunday 1899. powers, which are entirely different, are subject to In 1905 the parties entered into a minute of the provisions of section 6 that the Court must be agreement which provided, inter alia : satisfied not only that the requirements in the Act have been complied with, but that it is expedient in First : As soon as the proposed new railway is the national interest that the right applied for should completed, or, at least, working from the colliery to be granted ; and if we are satisfied about that, then the harbour at Campbeltown, the first party as heir we can proceed to make the grant. of entail foresaid shall accept a renunciation of the Now, in this case the applicants ask us to confer said lease of the colliery and grant a new lease thereof both these powers upon them. They are tenants to the second parties for the period of thirty-one under a lease from the Duke of Argyll, and in terms years from the date of the opening of the railway of that lease they are prohibited from entering a to the harbour upon the whole terms and conditions certain area of the minerals situated under a farmof the said present lease, except in so far as altered house. The object of the prohibition was obviously by this agreement or by the mutual agreement of to protect the farmhouse from subsidence, but the parties. existence of the probibition prevents the applicants from winning the coal in the prohibited area. They The railway from the colliery to Campbeltown further ask that we should give them power to Harbour was opened in 1907, but no renuncia- traverse the area to enable them to work minerals. which have been let to them under the lease, and of the lease and of new to grant a fresh lease to run lst Div. which they say can be worked most properly and from the date when he grants it. No heir of entail conveniently by means of an access through the can grant a lease which will be binding upon his Campbelprohibited area. successors unless possession is had under it by the town Coal Co. Ltd. v. tenant during the granter's life, except in the special Duke of On 16th July 1925 the Railway and Canal circumstances provided for in the Entail Act, 1882, Commissioners dismissed the application. Argyl. where a new lease has been granted within two years of the expiry of the old one as an act of ordinary November 14, Lord Blackburn [after the narrative quoted above administration and the granter has died before the and after dealing with points immaterial for the old lease has expired. present report].— Now, passing from that I come to Now, in the present case, what has happened is the other facts and circumstances under which this this, that in 1905 the then heir of entail, the present application is made. The first important question-objector's immediate predecessor, entered into an and I have found it a very difficult question-is the agreement with the tenants. Under this agreement question of the duration of the lease under which the he bound himself, in the first place, to accept a reapplicants have right to work the minerals. In nunciation of the principal lease from the tenants their application to the Board of Mines for authority and to grant them a new lease for thirty-one years to present this application to the Court, they stated from the date of the opening of a certain railway. that they were working the minerals under a lease That obligation, of course, was binding upon him which does not terminate until the year 1938, and it in a question between him and the tenants; but to was under those circumstances that the application make the new lease binding upon the next heir of was transmitted to us. The objector challenges that entail, it would be necessary that the principal lease and says that the lease is not binding upon him should have been renounced and that the new lease beyond Whitsunday 1927. In the one event, of course, should have been granted during the late heir's the applicants would be in a position to carry on any lifetime. That was not done. The obligation in the powers we might give them for thirteen years, and agreement is a purely personal one, and does not in the other they have less than two. transmit against the succeeding heir, who makes up This question of the duration of the lease is involved his title to the estate as heir of tailzie and not as heir in the Scotch law of entail. The powers of an heir to his predecessor in the entail. of entail as to granting a lease which will be binding It was argued for the appellants that this minute on a succeeding heir of entail are limited, and in the must be read along with the principal lease, and that case of a lease of minerals he only has power to grant in respect that certain other terms of the minute a lease for a period of thirty-one years. Any lease have been acted upon by both parties (the present beyond that period would not be binding on the heir in possession and the tenants themselves), it must succeeding heirs of entail. Now, in the present case, be held that the objector has homologated the terms a lease to the applicants' authors, which is dated in of the minute and that they are entitled to insist 1899 and which terminates in the year 1927, was on his implementing the obligation to grant a new granted by an heir then in possession, but who died lease undertaken by his predecessor to the tenants. in 1914. That I shall refer to as the principal lease. Now, the other clauses in the minute of agreement There is no question at all that that is a lease which which have been implemented by the present heir of was binding upon the succeeding heirs of entail and entail make alterations upon the terms of the princibinding upon the objector. The only reason that pal lease of the character which, as I have already an heir of entail in possession cannot grant a lease indicated, an heir in possession may make to an binding upon his successors of longer duration than existing lease so as to become binding upon the the thirty-one years fixed by statute is that by so succeeding heirs. They refer to payment of rent doing he would be held to be alienating the estate and they refer to methods of working, and are such and consequently to have incurred an irritancy of as might quite well be incorporated into the principal the fetters of entail. Now, while an heir in possession lease and form a binding contract upon the succeeding cannot alter the terms of an existing lease so as to heirs of entail. But, in my opinion, the obligation make it run for more than thirty-one years, I entertain to grant a new lease undertaken in the first provision no doubt that he may alter its terms by minutes of in the minute of agreement could not possibly be agreements with his tenant in so far as the terms made obligatory upon the succeeding heirs unless altered cannot be characterised as an alienation of the special conditions which it anticipates, namely, the estate. That is to say, he may alter the rent the renunciation of the principal lease and the by agreement with the tenant, and the alteration, if granting of a new lease, had been given effect to bona fide and an act of ordinary management, would during the lifetime of the late heir. I cannot help be binding upon his successors. He might alter the thinking that the advisers of the late heir of entail conditions of working in the same way, and such an were well aware of that when this minute was entered alteration would be binding upon his successors. into, because in distinction to all the leases (and But he cannot, in my opinion, so long as the lease there are several other leases granted by him to these subsists, extend its duration beyond the statutory same tenants), in distinction to the terms of all the period so as to be binding upon his successors, because other leases (where he binds himself and his heirs that might amount to an alienation of the property. succeeding in entail), in this particular minute of If an heir of entail, who has granted a lease for the agreement he binds himself and nobody else, and period to which he is entitled to grant it, wants to this clause which he entered into was an obligation extend the right to his tenants, the only course by which he was at liberty to discharge at any time, and which he can make the new lease binding upon his could have been obliged to discharge during his life successors is to accept from the tenant a renunciation if the tenant had renounced the lease and asked for a |
