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Replies to Query CCCLXII. (Vol. VIII., p. 282).
This question is too general to be answered satisfactorily. In fixing royalties so very much has to be considered, such as the quality of the minerals, the amount of capital to be expended in winning and working them, the quautity of water to be dealt with, and the proximity of the site to road, canal, navigable river, sea, or railway. The distance from the chief market for the produce also has much to do with it ; for instance, if London is the chief market, long distance freights will be adverse to the royalties, as the freight plus the royalty must be equal or nearly so amongst the various competitors ; on the other hand, a lessor's position is improved if there is a large home sale.
Speaking generally, the royalties offered are low, but yet may be fair if all the circumstances are known, and especially if the mineral area is unproved and the capitalist is consequently taking great risks.
J. L. BOLDEN, Fellow.
In South Wales royalties are generally fixed and agreed upon before the minerals are won. There are many cases of sliding scale royalties governed by the sellivg price at the pit, and sometimes the selling price at the port. These vary, but lath of the selling price at the pits may be taken as a fair average in South Wales, but there are cases of higher and lower royalties being charged.
Coke.—The royalty is usually paid on the small coal from which the coke is made, and is often one-half of the royalty upon the large coal.
Ironstone. - This varies from 6d, to 18., but at present it is not worked to any extent in South Wales.
Shale.- To my knowledge there are no royalties on shale in South Wales, it not being marketable.
Fireclay.—This is from 3d. to 5d. per ton, usually the former.
Colliery Consumption.—This is variable. In some cases all the coal consumed in working the colliery is free of royalty. In other cases it is from 3 to 10 per cent. of the output, but it depends on circumstances. In very watery and very deep pits the allowance would be higher than would be the case in a shallow or dry pit.
R. FORREST, Fellon.
In letting a coal mine the following royalties would be fair and reasonable between lessor and lessee :
Coal, ioth selling price at pit's mouth.
Fireclay, 6d. per ton.
E. A. FODEN, Fellow.
Replies to Query ('('('LXIII. (Vol. IIII., p. 283). SALE OF TIMBER—LIABILITY TO VENDOR'S TENANT FOR DAMAGE
A. It would appear at first sight that the tenant is rot entitled to any compensation, but it is a matter for a legal opinion whether the words in Clause 5---“or any other injury or damage by the purchaser . . “the tenants their stock or crops "-would entitle the tenant to compensation.
It is clear that he cannot claim for “repairs of road” or “interference “ with gates," as it is admitted that no wilsul cr unnecessary damage bas been done.
Every land agent knows that the fall and removal of timber must necessarily do some damage, and as the tenant was a party to the agreement it seems to me doubtful whether he can now recover.
DANIEL WATNEY, President.
This is a case in which gocd legal advise should be obtained on full disclosure of all documents and facts.
It seeins to me that the answer to this question depends upon what are the terms of the tenant's lease, and in what way he was a party to the agreement for the sale of the timber.
If the landlord reserves to himself by the lease the right to tell and cart away timber from the demised lands on the adjoining woodlands, and the right to use all usual rights of way to and from the same without a provision for compensation to the tenant, then the latter can clearly claim no compensation if only unavoidable damage is done by such felling and carting
If the lease says the landlord is to “ do as little damage as may be ” in the felling or carting, then the tenant must prove wilful or negligent damage, which it appears in this case he cannot do.
It is stated, however, that the tenant was party to the agreement for the sale of the timber. This is, I think, a most unusual course, and the object would appear to have been to specially guard against any claim for damages.
In the absence of any reservation of right to the landlord to fell and cart away timber without paying compensation for damage, and if the tenant has not put himself out of court by being a party to the agreement for the sale of the timber, I think the tenant would have a proper claim for compensation for all damage caused by such felling and carting against the person who by himself or his employés actually committed such damage, and the buyer of the timber would have the right to claim repayment from the vendor for all damages which were shown to be caused by a fair and proper carrying out of the agreement for felling and carting the timber away.
A. VERNON, Fellow.
The question asked as to the construction of the contract seems to be purely a legal one. The clause first provides for “any wilful, unnecessary, or negligent damage," then follow these words,“ or any other injury or “ damage.” This seems to be wide enough to include all damage whether wilful or not, so that legally it is probable the purchaser may be held liable, having signed such a contract. On the other hand it is unusual, and I think unreasonable, to require a purchaser of timber to pay for unavoidable damage, it being impossible to remove timber without doing some damage. No prudent man would purchase knowingly subject to such a liability.
C. OAKLEY, Vice-President.
Replies to Query CCCLXIV. (Vol. VIII., p. 283). CONTRACT-ADJUSTMENT OF ERRORS IN Bills OF QUANTITIES.
When the contracter's priced quantities are deposited as a Schedule they should always be carefully examined before any tender for a lums sum is accepted, otherwise, in case of errors, great difficulty must result.
As to the specific questions :-
Each case must be decided on its own merits.
assessed (in the event of variations) strictly upon the terms of
which would be a specific guide under the circumstances. c. I do not think that a contractor has any power to claim that all
such errors (his own errors) should be adjusted, provided that
justment is to be made.
JOSIAH HUNT, Fellow.
A. In practice the difficulty is usually met in the manner indicated in question c.
Questions B, C, and D are for lawyers rather than surveyors. I do not know of any legal decision.
F. H. A. HARDCASTLE, Fellon.
A. If, as is usually the case, it distinctly states that the contractor is to fill in the detail prices of his estimate, no notice should be taken of an error in extending the price. This is clear, because if the error was in the contractor's favour, he would say the total amount of his estimate could not be interfered with ; this argument applies both ways.
· B. The variations should be priced at £18 per rod and 5s. per foot respectively.
c. I think not, but if the errors are discovered before signing the contract the contractor should be allowed to withdraw his tender. D. Not that I am aware of.
ALFRED BULL, Fellon.
Reply to Query CCCLIV. (Vol. VIII., p. 284). LIABILITY TO REPAIR RETAINING WALL BETWEEN ROAD AND
ADJOINING OWNER'S LAND. It is not clear who erected the retaining wall, or whether the gradient it was intended to improve was that of the road or of W's steep bank.
If I am correct in assuming that Werected the retaining wall to support his land, the public roadway extends only to its toe. I would refer the querist to vol. 23, page 105, paragraph 1, and its context.
LEONARD P. HODGE, Fellon.
Replies to Query CCCLXII. (Vol. VIII., p. 284). ECCLESIASTICAL DILAPIDATION ACT, 1871–RECOVERY FROM LATE
Section 29 of the Ecclesiastical Dilapidations Act enacts that the bishop shall within three months direct the surveyor to make the survey. Still the time allowed to expire before the survey was made is unreasonable, and the late incumbent's responsibility for dilapidations ceased with his incumbency. The question is, What was the state of the buildings, fc., nt that time.
The late incumbent should have called upon his tenant to repair fences during his incumbency. If he failed to do so he is liable, in which case he is liable to renew, whereas the tenant was only liable to him for tenantable repair. See Sections 32 to 35 inclusive, as to procedure.
G. R. CRICKMAY, Fellow.
The question does not state why the survey was so long delayed. Of course the surveyor must take the property as he finds it. It is not usual to say there is no appeal from the award, but of course it must be made within the time limit prescribed by Section 32 of the Act.
The late incumbent can only be held responsible for the repairs and dilapidations existing at the time of his vacating the living, only, as the survey was so long delayed, it might be difficult to prove the exact state of things when the vacancy occurred. The new incumbent would under ordinary circumstances be able to recover the cost of the dilapidations, but so much would necessarily depend upon the matter being in order, or in compliance with the Act, or otherwise.
The whole matter may, however, depend upon the first part of the statement as to why the survey was not made in the usual way and at the usual time.
J. SHAW, Fellon.
Replies to Query CCCLXVII. (Vol. VIII., p. 285).
LAND AGENT-NOTICE TO TERMINATE ENGAGEMENT.
Six months' notice has always been required in all such cases that have come under my notice, and I think this would be considered fair and reasonable as well as legal.
JOHN SHAW, Fellow.
This is a case upon which a legal opinion should be obtained. The termination of the engagement would necessarily depend somewhat upon the circumstances and under what conditions the notice was given ; e.g. suppose the land agent had just sent in his account for the half-year and a cheque to balance, the owner would, I take it, be within his rights in giving notice to the agent that he did not further require his services, but on the other hand I should say it is more usual and customary to give at least six months notice of a proposed change, though I very much doubt if there is any legal obligation to do so.
CHARLES BIDWELL, Fellon.