The Union Canal Act 1817, authorising the formation of a canal from Lothian Road near Edinburgh, to join the Forth and Clyde Navigation Canal near Falkirk, inter alia, enacts-Section 112-‘Provided always and be it further enacted that nothing herein contained shall extend to prejudice or affect the right of any owner or owners of any lands or grounds in, upon, or through which the said canal or any towing paths, wharfs, quays, basins, tunnels, feeders, trenches, sluices, passages, watercourses, or other conveniences aforesaid shall be made, to the mines and minerals lying or being within or under the said lands or grounds, but all such mines and minerals are hereby reserved to such owner or owners of such lands or grounds respectively; and it shall and may be lawful to and for such owner or owners, subject to the conditions and restrictions herein contained, to work, get, drain, take, and carry away to his, her, or their own use such mines and minerals, not thereby injuring, prejudicing, or obstructing the said canal or any of the works or conveniences belonging thereto.’ Section 113-‘And be it further enacted that it shall and may be lawful to and for the said company or their agents or servants, at any time or times, upon reasonable notice, in the daytime, to enter upon any lands through or near which the canal and works hereby authorised to be made shall be or pass, wherein any mines shall or may have been dug, opened, or wrought, and likewise to enter into such mines, and there to find, search, and measure, latch, and use all other means for discovering the distance of the said canal and towing paths from the working parts of such mines respectively; and in case it shall appear that any mine hath been opened or wrought under the said canal, or any of the works belonging thereto, or so near thereunto as to endanger or damage the same, and that such endangering or damaging the canal or other works has been wilful, it shall and may be lawful to and for the said company and their agents, servants, or workmen, at the expense, costs, and charges of the owners or proprietors of such mine and mines, and from time to time, to use all reasonable ways and means for repairing, supporting, sustaining, securing, and making safe the said canal, towing paths, and other works; and such expenses, costs, and charges shall, in case such mines shall have been so wrought or worked subsequent to the passing of this Act, be recovered by the said company, in case of non-payment thereof upon demand, by action at law in the Court of Session; and such expenses, costs, and charges shall when recovered be paid into the hands of the clerk of the said company for the time being for their use and benefit; and in case the said company shall find it necessary for the safety of the said navigation, or any of the works thereto belonging, to stop the working of any mines or minerals under or near the said canal, or any of the works thereto belonging, the said company shall and they are hereby required to make satisfaction to the owners, occupiers, or other persons entitled to receive the same. The company having intimated to a proprietor, from whose predecessor there had been acquired part of the land on which the canal had been formed, that they would hold him responsible for any damage done to the canal by his, or his mineral tenants’, mining operations, he, on the ground that this was ‘to stop the working’ of certain valuable seams of oil shale, called upon the company to make, under section 113, satisfaction for their value.
Held: that section 113 did not apply, as the company, out with the provisions of that section, had, and were entitled if they chose to rely upon, their right of support at common law and as preserved to them in section 112. Question if oil shale under an Act of 1817 or the proceedings following thereon was a mineral?
Judges:
Lord Chancellor (Haldane), Lord Kinnear, Lord Atkinson, Lord Shaw, and Lord Parker
Citations:
[1914] UKHL 626, 51 SLR 626
Links:
Jurisdiction:
Scotland
Land
Updated: 26 April 2022; Ref: scu.620715
