A railway company acquired the right of a feuar in certain lands. The feuar’s title reserved to the superiors the whole metals and minerals, with certain exceptions. The railway company did not acquire the right of the superiors in the lands. Certain minerals having been excavated by the railway company in the course of making the railway, partly above and partly below the formation level, the superiors brought an action against the railway company, in which it was found on 19th July 1894 that the superiors were the sole proprietors of the minerals, ‘subject to the rights conferred upon’ the feuar ‘and conveyed’ to the railway company, and a proof was allowed in regard to the minerals so far as lying below formation level, ‘reserving to the pursuers any claim’ for minerals above formation level, ‘to be determined by arbitration in terms of the statute.’ No steps were taken by either party to have the value of the minerals taken so far as above formation level determined as an omitted interest under section 117 of the Lands Clauses (Scotland) Act 1845. Thereafter, the railway company on 7th December 1896 having denied liability for these latter minerals, the superiors brought an action in which they claimed damages for the excavation of the minerals above formation level from the railway company as trespassers, and maintained that the question as to the right of the railway company to take these minerals was res judicata in the previous action, and that, as they had failed to give notice to treat, the period for compulsory purchase as an omitted interest had expired. The railway company maintained that the removal of the minerals in question was within their rights, but this contention was negatived by the Court. Held that the question as to the rights of parties with regard to the minerals above formation level had not been determined in the previous action, and that, as consequently six months had not elapsed since that question was finally determined by law, it was still open to the railway company to have the amount of compensation determined by arbitration under section 117 of the Lands Clauses (Scotland) Act 1845.
Opinions that if the question was finally determined in the previous action, it was the duty of the superiors as claimants and not the duty of the railway company to initiate proceedings for determining compensation under section 117.
Judges:
Lord Chancellor (Halsbury), and Lords Ashbourne, Robertson, and Lindley
Citations:
[1902] UKHL 98, 40 SLR 98
Links:
Jurisdiction:
England and Wales
Transport
Updated: 14 July 2022; Ref: scu.630804