The A company, who were the owners of a mineral field, through which two water-pipes, known respectively as the C. and M. pipes, were laid in 1821 and 1877 respectively, but in the same pipe-track, received a notice under the Waterworks Clauses Act 1847 from the Water Trustees, to whom the pipes belonged, requiring them to abstain from working the minerals in the vicinity of the pipes, and undertaking to make compensation therefor, ‘in so far as you are entitled thereto,’ subject to the following reservation:-‘Declaring that the foregoing notice is given without prejudice to and under reservation of . . all objections to your working out the said minerals competent to us, and of our right of support of the C. pipe passing through the said mineral field.’ The amount of compensation to be paid in respect of the non-working of the minerals was fixed by the oversman in an arbitration after the usual procedure. Subsequently the Water Trustees obtained decree in an action, whereby it was found that, independently of the provisions of the Waterworks Clauses Act, the Water Trustees had a common law right of support for the C. pipe, and that the A Company were not entitled to work the minerals adjacent or subjacent to the C. pipe in such manner as to injure the said pipe or interfere with the continuous flow of water through it. The Water Trustees thereupon refused to implement the oversman’s award, on the ground that the minerals, for which compensation had been awarded, could not be worked out without causing the C. pipe to subside; that under the reservation above quoted it was now open to them to refuse implement of the award; and that the oversman in making his award had not taken the Water Trustees’ right to support for the C. pipe into account. Held ( aff. judgment of the First Division- dub. Lord Chancellor) that the Water Trustees were not entitled upon these grounds to refuse implement of the award, in respect that the effect to be allowed to the right of support for the C. pipe was a matter affecting the question of amount of compensation, and therefore a question for the oversman, and that the oversman having decided upon the question of the amount payable, his decision thereon was not subject to review.
Judges:
Lord Chancellor (Halsbury), Lord Macnaghten, Lord Davey, Lord Brampton, Lord Robertson, and Lord Lindley
Citations:
[1902] UKHL 860, 39 SLR 860
Links:
Jurisdiction:
Scotland
Arbitration, Land
Updated: 05 July 2022; Ref: scu.630803
