This was an appeal from a decision of the Second Division. Mr Andrew was the owner of a house in Coatbridge, which he had bought in 1865 from one Porteous, who had built it. The feucontract between Porteous and Mr Buchanan, the superior, contained an obligation on the feuar to build a house of a certain size and style on the piece of ground feued, and the superior expressly reserved to himself power to work the minerals under the feu. The words in the contract were,’ Reserving always to the said superior the whole coal, and co., with full power to work, win, and away carry the same at pleasure. And it is expressly agreed that the said superior shall not be liable for any damage that may happen to the said piece of ground or buildings thereon, by or through the working of the coal in or under the same, or in the neighbourhood thereof, by long wall ‘working or otherwise.’ The lessees of the Drumpelier coalfields were working the mine near the feu of Mr Andrew, and there was a well-founded apprehension that the house would shortly be destroyed by the subsidence that would follow when all the coal was worked out, as the lessees were in course of doing. Mr Andrew accordingly applied for an interdict, which he obtained, three of the Judges construing the feucontract so as to protect him against the working of the coal within 100 yards of his house, while the Lord Justice-Clerk dissented, holding that the feuar had taken the risk of subsidence on himself.
[1873] UKHL 320, 10 SLR 320
Bailii
Scotland
Updated: 11 August 2021; Ref: scu.652908 br>