The Lord Ordinary pronounced the following interlocutor: "Having heard parties' procurators on the first plea in law stated for the defender, and upon the proposed issue lodged by the pursuer, as appointed by interlocutor of 20th Jan. 1852, and having considered the terms of said issue, record, and whole process-In respect that parties do not agree as to the terms of the issue which should be adjusted for the trial of the cause, reports the matter to the Lords of the Second Division of the Court, in terms of 13 and 14 Vict., c. 36, § 38; and grants warrant to enrol in the Inner House Rolls. "Note.-The Lord Ordinary considers that in the summons and record there are facts set forth sufficient and relevant in law to entitle the pursuers to an issue, and that the first plea stated for the defender falls to be repelied; and being of this opinion, he would have pronounced an interlocutor to that effect, and approved of an issue for the trial of the cause, had parties been at one as to its terms. But although in the course of the debate the pursuers altered the issue, as originally proposed by them, to meet the views which were suggested, the defender's objection to the issue was not thereby obviated,—its terms, on the assumption that the defence of irrelevancy were repelled, requiring in his view to be still further altered. In this situation the Lord Ordinary has pronounced the above interlocutor, in order that the question of relevancy, as well as the terms of the issue (if any) to be granted to the pursuers, may be disposed of by the Inner House." At advising Lord Justice-Clerk-We cannot dismiss this action as it stands without further inquiry. But that inquiry will be made by a remit to the Sheriff to inquire and report on the conduct of this procurator. The Court pronounced the following interlocutor: "Having heard parties' procurators, in respect that this action of damages is founded upon alleged mismanagement and neglect of a cause said to have been conducted before the Sheriff of Perthshire by a procurator of his Court, in regard to matters which it would be most unsuitable to send to a jury, before answer as to the relevancy of the pursuers' allegations, which may very much depend on the exact state of facts which may be comprehended under such allegations-Remit to the Sheriff-depute of Perthshire to consider the record in this action, and the Inferior Court process therein referred to; to examine into the pursuers' allegations; and to examine the said pursuers, or either of them, and to call for all precognitions or statements laid by them before the defender, as their agent, and any other papers which he may think will throw light on the matters involved in the statements made by the parties: Also to receive any statements which the recollection of the Sheriff-substitute or the commissioner for taking the proof may enable them to make; and, generally, to obtain any other information which appears to him to be material for a full investigation into the ground of complaint stated against the defender's management of the cause referred to; and to report, after such inquiry, his opinion on all such grounds of complaint, but without reporting the evidence or information he may obtain, unless after hearing parties on the point he may think that such information is necessary to enable the Court to dispose of the grounds of action, and that the matters are more for the Court than for the said Sheriff, as the Judge of the Court in which the alleged failure and neglect of duty as a procurator in said Court are said to have occurred." Lord Ordinary, Cowan.-Act. Neaves, Scott; James Bayne, SS.C. Agent. Alt. Dean of Faculty (Inglis), Young; Patrick Graham, W.S. Agent.-I. Clerk.—(F.H) 15th February 1854. FIRST DIVISION. MARK SPROT, Pursuer, v. THE CALEDONIAN RAILWAY minerals. The special railway statute (7 Geo. IV., c. 103) gave proprietors along the line the privilege of retaining their minerals, under the proviso they should not be worked without giving the company security for all damages that might ensue. It turned out, in regard to these reserved minerals, that they could not be worked under the railway, nor for a considerable space adjacent to it, without danger to the line, and that no mere money security would meet the case-Held that this was a casus improvisus, and that the party was entitled to compel the railway company to purchase the minerals under and adjacent to the line which could not be worked. Sale-Compulsory-Obligation of Seller-Held that a party acquiring land under a statutory provision, which compels the owner to sell, is not in the same position as one acquiring by a voluntary alienation, to the effect of compelling the seller to refrain from all such uses of the adjacent property as might be injurious to them, but that the seller who is deterred from such use is entitled to compensation therefor. An action of declarator and damages at the instance. of Mark Sprot, Esq. of Garnkirk, against the railway companies, in respect to certain minerals belonging to him under and adjacent to the Caledonian Railway. On 12th December 1834 the pursuer entered into an agreement with what was then called the Garnkirk and Glasgow Railway Company, by which, for certain sums of money, amounting in all to £624:5:11, he sold and conveyed to them certain portions of the estate of Garnkirk, but "reserving always to me and my heirs and successors the whole mines and minerals, of whatsoever description, within the said lands hereby conveyed, and full power and liberty to us, or any person or persons authorized by us, to search for, work, win, and carry away the same, and to make aqueducts, levels, drains, roads, and others necessary for all or any of these pur. poses, but subject always to the provisions and conditions of the said Acts of Parliament in relation to the working of minerals for the protection and security of the said company, and the said railway and works and traffic thereon." The provisions in the Garnkirk and Glasgow Act, 7 Geo. IV., c. 103, sect. 11, in the case of proprietors reserving their minerals, referred to in the above disposition, was "Provided always further, nevertheless, that it shall on no account be lawful to, or in the power of any such proprietor, to work, win, or away take any of the said minerals without giving previous good and sufficient security to the said com. pany for all damages, interruption of traffic, and other injury which may thence in any way result to the said undertaking or the said company; and in the event of the said company and any such proprietor not agreeing in regard to the extent or sufficiency of such security, then the Judge Ordinary of the bounds shall regulate and determine thereupon, as to him shall appear just." This Garnkirk and Glasgow Railway, which was at first merely a mineral line worked by horse power, was in 1844 extended and changed, by Act of Parliament, 7 and 8 Vict., c. S7, into the " Glasgow, Garnkirk, and Coatbridge Railway Company." Next year the new company was empowered to widen and improve the gauge of their rails by Act 8 and 9 Vict., c. 31, and finally, in 1846, the whole line was sold to and merged in the Caledonian Railway Company by the Act 9 and 10 Vict., c. 9. In the first of the above recited Acts, the 7 and 8 Vict., c. 87, there were inserted several clauses in regard to the minerals under or adjacent to the line. It was provided in sect. 84, to protect the railway, that "if the owner, lessee, or occupier of any mines or minerals lying under the railway, or any of the works connected therewith, or within forty yards therefrom, be desirous of working the same, such owner, lessee, or occupier, shall give to the com pany notice in writing of his intention so to do thirty days before the commencement of working; and upon the receipt of such notice, it shall be lawful for the company to cause such mines to be inspected by any person appointed by them for the purpose; and if it appear to the company that the working of such mines or minerals is likely to damage the works of the railway, and if the company be willing to make compensation for such mines to such owner, lessee, or occupier thereof, then he shall not work or get the same." And in sect. 85 "That if before the expiration of such thirty days, the company do not state their willingness to treat with such owner, lessee, or occupier, for the payment of such compensation, it shall be lawful for him to work the said mines, so that the same be done in manner proper and necessary for the beneficial working thereof; and if any damage or obstruction be occasioned to the railway or works by improper working of such mines, the same shall be forthwith repaired or removed, as the case may require, by the owner, lessee, or occupier of such mines or minerals, and at his own expense; and if such repair or removal be not forthwith done, it shall be lawful for the company to execute the same, and recover from such owner, lessee, or occupier, the expense occasioned thereby, by action in any competent courts." In the Caledonian Company Act is incorporated the general regulations as to mines and minerals in the Railway Clauses Consolidation Act, 8 and 9 Vict., c. 33, sects. 70, 71, 72, 3, 4, 5, 6, 7, and 8. Since 1834 the pursuer discovered that there was a valuable field of fire-clay in that part of his estate traversed by the railway, lying partly under the line of railway, as well as on both sides of it, and he proceeded to work the minerals very extensively, having, according to his averment, expended upon the works a sum of between £20,000 and £30,000. In August 1848 he received a letter from the defenders' agents intimating that the works carried on in the fire-clay mines were endangering the safety of the railway, and calling upon him to find security to the company for damages, interruption of traffic, and other injury. To this there was appended a report by Mr. Robson, engineer, who stated that "Directly under the railway the depth from the surface to the top of the fire-clay bed does not exceed eighty feet, and the thickness of the clay being eight feet, it follows that the excavation or void will also be eight feet, except at those places where the roof has already sunk; and recommended-1. That if possible the railway company should stop any further work-ing of the fire-clay within sixty feet of the centre of the railway between the points A and B on the plan. 2. That the spot should be watched, and if partial sinking takes place, the rails should be raised and laid on strong longitudinal sleepers, resting on cross sleepers, and that these cross sleepers should be twenty-four feet long, so as to extend under, and some dis tance beyond both lines of rails. 3. That any future working of this clay to the west of A or east of B should only be permitted if done by means of narrow mines, not exceeding eight feet in width, to be driven at right angles to and under the railway. These mines not to be closer to each other than thirty feet, and to have no cross mines or rooms between them, until they extend beyond the distance of sixty feet from the centre of the railway on each side; but after passing these limits, the workings may be widened out to the usual dimensions and form." The ground conveyed by the pursuer to the railway company does not comprehend the whole space mentioned in Mr. Robson's report, extending 60 feet on each side from the centre of the railway, between the points A and B on the plan, and within which the company's engineer has reported the fire-clay cannot be worked without endangering the security of the railway. In these circumstances the pursuer, on 13th Septem ber 1848, in terms of the 71st section of the Railway Clauses Act, 8 and 9 Vict., c. 33, served a notice on the secretary of the Caledonian Company, intimating his intention of working the minerals under and adjacent to the railway. The company, however, declined to avail themselva of the option given by that statute of purchasing the minerals, or of paying compensation to the pursuer leaving them unworked, and insisted on his finding cau tion for damages, &c., before proceeding. The pursuer consequently raised the present action of declarator of his right to work the minerals both in the lands contiguous to and under the railway. The value of these minerals was estimated by him at £50,000. Hi likewise claimed damage for the loss sustained by the interruption of his workings since August 1848, est mating it at £10,000. The defenders, founding upon the original Garnkirs and Glasgow Act of 1826, sect. 11, and the agreem-st in 1834, contended that the pursuer's right or interest a the minerals was restricted by these transactions, m especially that he was not entitled to work his mi either under or adjacent to the railway so as to E it, and that the defenders were entitled by their ment to insist upon his performing this obligation var out any additional compensation beyond the sums pa in 1834. They also maintained, that at common the pursuer could not work the minerals adjacent to the railway, if the effect of such working was to be injuria to the company, the conterminous heritor. They a cordingly insisted on his finding caution to keep the scaithless before he could be allowed to go on. The pursuer, on the other hand, maintained, that ing proprietor of the minerals, the defenders were t entitled to require him to desist from working the minerals without paying him the value thereof, or copensating him for the loss occasioned by leaving the unwrought. And that the act requiring security to be found in certain circumstances does not apply to the minerals in the lands adjacent to the railway, whi were not included in the disposition granted by the p suer to the railway company in 1834. But that t pursuer is entitled to obtain full compensation from defenders for the whole minerals in the lands of kirk not purchased by the railway company, and wacannot be wrought without danger to the railway and works, and such compensation falls to be settled in the manner directed by the Act 7 Geo. IV., c. 103, or by the Lands Clauses Consolidation Act. That the co dition as to finding caution was one intended to favor the pursuer, but is impossible, no pecuniary obligation being sufficient in the circumstances. Also, that the de fenders are liable to make reparation to the pursuer for the loss and damage sustained by him and his tenants in consequence of their having been prohibited from working the minerals since the month of August 18 by the wrongous and unwarrantable proceedings of the defenders. The Lord Ordinary pronounced the following interl cutor: Finds generally, that the claims of the pursuer under the present action are barred and excluded by his deed of convey ance in favour of the defenders, the Glasgow, Garnkirk, and Coatbridge Railway Company, dated 12th December 1884, a by the statutes on which the said deed proceeds, namely. Geo. IV., c. 103, entituled, 'An act for making a railway from the Monkland and Kirkintilloch Railway by Garnkirk to Glasgow,' passed on the 26th of May 1826; and the Statute, 7 and 8 Geo. IV., c. 88, entituled, 'An act for altering and mending the Garnkirk and Glasgow Railway Act,' passed on the 14th of June 1827: More particularly, finds that the purquer is not entitled to work the minerals reserved by him in is said conveyance to the Glasgow, Garnkirk, and Coatbridge Railway Company, without, in the first instance, under and n terms of the 11th section of the said Statute, 7 Geo. IV., c. 03, giving previous good and sufficient security to the defenlers for all damages, interruption of traffic, and other injury which may thence in any way result to the railway in question, or to the defenders, as proprietors thereof: Finds, farther, that he pursuer is not entitled, either at common law, or under is transaction with the defenders in 1834, to work the mineals under his lands lying contiguous or adjacent to the subects conveyed by him to the Glasgow, Garnkirk, and Coatridge Railway Company by the said deed of 12th December 1834, so as to cause injury or damage to the railway in question, r to the defenders as proprietors thereof, without incurring legal obligation to repay all such injury and damage as may e so caused: Therefore, and on these grounds, sustains the efences, assoilzies the defenders, and decerns: Finds the ursuer liable in expenses; allows an account to be given in, nd remits the same, when lodged, to the auditor to tax and eport. Three words deleted. "Note. In this case the Lord Ordinary has, without much ifficulty, arrived at the conclusion, that the claims of the ursuer are barred by his transaction with the Glasgow, Garntirk, and Coatbridge Railway Company in 1834. This transaction was carried out under the statutes recited in the inter. locutor, 7 Geo. IV., c. 108, and 7 and 8 Geo. IV., c. 88, ani it was completed by the conveyance of 12th December 1834, executed by the pursuer in favour of the railway company. "Before adverting to the legal import and effect of the ransaction just referred to, it is proper to attend to the nature of the pursuer's demands, and to the conclusions of his sumnons. The declaratory conclusions are stated under a variety f separate heads, but their sum and substance comes to this, -that the pursuer is entitled to work minerals both under the ubjects acquired from him by the defenders for railway puroses, and under his lands lying contiguous or adjacent to the aid subjects, however injurious the effect of such working may be to the railway, unless the defenders agree either to purchase the minerals in question, or to compensate the purner for the loss consequent upon not working them. The ibel farther contains a petitory conclusion for £10,000 sterling, or such other sum, more or less, as shall be found to be the lamages to which the pursuer is entitled in respect of his hav ng been prohibited or prevented by the defenders from workng the minerals belonging to the pursuer in the lands of arnkirk, by himself or his tenants, from and since the month f August 1848, while the defenders refused to purchase the inerals, or to pay compensation for the value of these minels, or the loss which he sustained by being prevented from orking the same, and denied the pursuer's right to obtain ny compensation on account thereof.' The defence against he action resolves substantially into the plea, to which the ord Ordinary has given effect, that the claims of the pursuer re excluded by the agreement and transaction between the arties in 1834. "The nature of this transaction is clearly fixed and ascerained by the terms of the pursuer's conveyance to the railway ompany. The deed proceeds upon the narrative of the two acts of l'arliament already noticed. It then sets forth that he line of railway passed through the pursuer's estate of GarnLirk, and that it had been agreed between him and the proprietors of the railway to refer the value of the land belonging o the pursuer to be occupied by the line, together with the uestion of general damage to his property of Garnkirk, to Mr. David Leighton, then factor at Coltness. The deed farther numerates the various sums to be paid by the company as he price of the land, and in name of damage, the whole mounting, as at 11th November 1833, conform to an award sued by Mr. Leighton, to the sum of £624: 5: 113, of which he pursuer acknowledges payment, and for ever discharges he said company thereof.' It thus appears that the price to be paid to the pursuer for his land was made the subject of rbitration, that the price was accordingly fixed by the arbiter, SCOTTISH JURIST. Mr. Leighton, and that it was paid by the company to the pursuer, who duly discharged the same. "It is here necessary to keep in view the footing upon which the price of the lands to be occupied by the railway must have been fixed by Mr. Leighton. The 11th section of the Statute, 7 Geo. IV., c. 103, provides, that 'it shall be lawful and competent to any proprietor or proprietors whose lands are hereby authorized to be taken, to reserve or except from the bargain or sale to the said company the whole minerals in the said lands, for and to his or her proper use and behoof, and the said company shall have no right of property of or in such minerals which any proprietor or proprietors may desire to reserve as aforesaid. The pursuer thought fit to avail himself of this proviso, and to reserve the property of the minerals under the lands to be conveyed to the railway company. The question therefore referred to Mr. Leighton, and decided by him, was the value of the land without the minerals. The price fixed was of course less than it would have been had the lands been conveyed with the minerals. But this is a matter of no moment in the present discussion. "1. In this state of matters, the first question raised by the summons relates to the conditions upon which the pursuer is entitled to work the minerals so reserved by him. These are to be found very clearly set forth both in the statute and the pursuer's conveyance of 12th Dec. 1834. The 11th sect. of 7 Geo. IV., c. 103, contains the following proviso in regard to minerals under a line of railway reserved by the proprietor, from whom the lands had been acquired by the company :-'It shall on no account be lawful to, or in the power of any such proprietor, to work, win, or away take any of the said minerals, without giving previous good and sufficient security to the said company for all damages, interruption of traffic, and other injury which may thence in any way result to the said undertaking or the said company.' It will be observed that the sufficient security here referred to must be given before a proprietor is entitled to begin to work reserved minerals under a line of railway. To the same effect the pursuer's conveyance of 12th Dec. 1834 reserves to himself, his heirs and successors, the mines and minerals within the lands conveyed, with full power and liberty to search for, work, win, and carry away the same, but subject always to the provisions and conditions of the said Acts of Parliament in relation to the working of minerals, for the protection and security of the said company, and the said railway and works, and traffic thereon.' Such, accordingly, was the footing on which the relative interests of the pursuer on the one hand, and of the railway company on the other, in regard to working minerals under the line, were finally transacted and arranged. The property of the minerals was reserved to the pursuer, but his right to begin to work them was qualified by the express condition that he should, in the first instance, give good and sufficient previous security for all damages, interruption of traffic, and other injury which may thence in any way result' to the railway, or to the defenders, as proprietors thereof. The Lord Ordinary must hold that by far the most important part of the pursuer's claim, namely, a right to work minerals under the line, to the injury, or it may be to the destruction of the railway, unless the company agree either to purchase these minerals, or to compensate the pursuer for not working them, is thus absolutely excluded. "The pursuer has founded upon the general expression in the 1st sect. of the Statute 7 Geo. IV., c. 103, which empowers the company to take lands, they making full satisfaction in manner herein after mentioned to the owners and proprietors of, and all persons interested in any lands and other heritages which shall be taken, used, removed, diverted, or prejudiced for all damages to be by them sustained in or by the execution of all or any of the powers of this act.' But it seems obvious that this generality can in no degree alter or affect a transaction carried through under the distinct and express proviso of the 11th sect., regarding the working of reserved minerals under a line of railway. Again, an attempt has been made to support the pursuer's claim by a reference to the 89th sect. of the statute, which enacts, that if at any time or times hereafter any person shall sustain damage in their lands or property, 'by reason of the execution of any of the powers hereby given, and for which no remedy is herein before provided, then, and in every such case, the recompense or satisfaction for such damage shall, from time to time, be settled and ascertained in such manner as herein before directed, in respect of any other recompense or satisfaction herein before mentioned.' It is difficult to see the VOL. XXVI.-No. XVII. application of this section to the present question, where the Court are certainly not called on to deal with a case of damage for which no remedy is herein before provided. On the contrary, the pursuer had it completely in his power to compel the company to purchase both lands required for the line, and the minerals under them. It was his privilege to reserve the minerals from the conveyance, and he did so of his own free will, and at his own risk, under the express condition of giving, before beginning to work them, sufficient security for any damage or injury which might thence in any way result to the said undertaking or the said company.' The defenders had nothing for it but to acquiesce in this arrangement, and the relative rights of parties in the whole matter being fixed and regulated by the most articulate statutory provisions, it seems out of the question to bring the case under the 89th sect. of the statute, which relates entirely to claims of damage which could not be anticipated, and for which no remedy is herein before provided.' The pursuer must be presumed to have been quite aware of the existence and value of the minerals in his lands, and having deliberately made his selection to reserve them under the statute, it is thought he cannot escape from the condition attached to this right of reservation,-that, before beginning to work the minerals, he must give security for any damage which may thence result either to the railway or the company. "On this point the pursuer has farther argued, that the case does not fall under the 11th sect. of the statute, because it is impossible to work the minerals under the line without destroying the railway. From this the inference is drawn, that as sufficient security against damage cannot possibly be given in such a case, it must be dealt with as casus improvisus, and a remedy found under the 89th sect. But it is thought this view can never be entertained. It was the business of the pursuer to inform himself fully as to the nature and value of his property, both on the surface and under ground, before he transacted with the railway company; and having deliberately and advisedly reserved the minerals, subject to the condition of working them only on caution for damages, it can assuredly afford no ground for relieving him from this condition, that the minerals prove to be unworkable, without bringing down the bed of the railway. In short, the pursuer had the choice of two ways of disposing of his property. He might have sold his lands with the minerals, and in this way, it must be assumed, he might have got the full value of the whole subject; or he had the power, which he exercised, of selling the lands without the minerals, getting of course a smaller sum from the purchasers, and taking upon himself the entire, and it may be unascertained, risk of finding caution for damages before beginning to work under the line. "2. The summons raises a second question as to the pursuer's right to work the minerals under his lands lying contiguous to the line to any extent, and in any way he may think fit, without incurring legal responsibility for the consequences, however injurious to the railway. It is said the defenders can only protect themselves against these consequences by purchasing the minerals and the lands in which they are imbedded, or by compensating the pursuer for any loss he may sustain from being restrained in his workings. In dealing with this question the parties, in the most unfavourable view for the defenders, must be viewed as conterminous heritors, and it appears to the Lord Ordinary that it may be solved by the general rule, that a party is barred from using his own property in such a way as must necessarily and directly injure the property of another.' (Lord Fullerton's note in Murray v. Johnstone, 4th Dec. 1834.) This is one of the known and recognized limitations upon a right of property, and it is difficult to imagine a stronger case for its application than the present. For what is truly the nature and extent of the pursuer's demand? The summons concludes, that the pursuer is entitled to obtain compensation from the defenders, or either of them, for all minerals adjacent to the line of railway which were not purchased by the said railway company or their successors, and which the pursuer or his tenants are prevented from working by reason of the necessity of maintaining the railway in a state of security, or by reason of the restrictions imposed upon him not to injure the railway.' There is also a farther conclusion much to the same effect, that the pursuer is entitled to obtain full compensation from the defenders, or either of them, for the whole minerals in the lands of Garnkirk not purchased by the railway company or their successors, and which cannot be wrought without danger to the railway and works.' Divested of technical form, these conclusions require it to be found and declared in substance that the pursuer is entitled to work the minerals under his own lands, up to the very march of the subjects conveyed to the railway company, so as greatly to endanger the line, with incurring legal responsibility to the defenders for the con quences. The Lord Ordinary is aware of no authority for the injurious use of property, and, on the contrary, it appears tele at variance with the best established rules of the common ar upon the subject. These require that a right of property tal not be exercised in emulationem vicini, or without a due regar the fair and legitimate interest of a neighbouring proprieta The books are full of maxims to this effect, and the principe was recognized and applied in the case of Robertson v. Ste 12th May 1825 (4 Shaw, p. 6), where a proprietor was he liable for damage sustained by his neighbour in consequence operations on his own property.' In that case, a party in t course of digging up an old wall within his own property, jured the foundation of a house situated within his neighbo march, and for this he was found liable in reparation. The s doctrine is stated by Lord Fullerton in the case of Murray: Johnstone, 4th Dec. 1834 (13 Shaw, p. 119), although the jal ment there proceeded on specialties. The import of the de sion is thus stated in the report:- Held by the Lord Onlay and acquiesced in, that the feuar of a building stance in a st was not entitled to excavate for the purpose of making a area, in respect that the operation would be attended with er ger to the adjoining tenement, and that, in the special c stances, he was barred from making such a use of his pho The circumstances were, that the feuar had acquiesced ite erection of the adjoining tenement without a sunk combining this specialty with the general rule that not entitled to use his property so as necessarily to in property of another, Lord Fullerton gave judgment, that the feuar was entitled to excavate a sunk area. "There are also specialties in the present case which fairly be brought in aid of the general rules of law on the ject, as a ground for restraining the pursuer from so work: the minerals under his own lands, as necessarily to enla and injure the railway. It must be kept in view that the pany acquired the land upon which the portion of the line question has been constructed from the pursuer. By his d of 12th Dec. 1834 he conveys it to them, but always for the o railway, and works thereto belonging, and no otherwise; ak warrants the conveyance at all hands, and against all m as law will. In short, the pursuer sells his lands with abe warrandice for railway purposes, and with an express cot CEF that they shall be applied to no other purpose. These are 2 circumstances in which he now maintains that he is entitle work his minerals lying adjacent to the line, so as to reme subjects conveyed to the company at once unsafe and urâti the construction of a railway; that is, for the only purse y which he conveyed these subjects with absolute warrandice might be going too far to hold that the pursuer thereby ranted the subjects to be in all respects fit for railway p but there was assuredly an implied warrandice that he to render them unfit for such purposes by his own fa deeds, or by an emulous use of his adjoining property cordingly, it does appear to the Lord Ordinary that the cumstances and conditions of the transaction between pursuer and the company do greatly strengthen the case a him, and afford an additional ground for requiring him to *** his minerals with a due regard to the safety of the railway, under a legal responsibility to repair any damage which thence result to the line. terms of the 11th sect. of the Act 1826; and, secondly, Whether, and in what respects, and to what extent, the alterations made on the uses and structure of the railway, by or under authority of the Acts of 1844, 1845 and 1846, or any of them, materially affected the practicability of working the minerals under or adjacent to the railway, with safety to the railway, or materially altered the nature or extent of the risks to be incurred by the proprietor." A report was given in describing the nature of the workings, and stating, that to secure the safety of the railway prior to 1844, real security would have been acquired by working the minerals only to the extent of one-half, and that in a particular mode there described, and that such a mode of working would add 1s. 3d. to 28. 3d. per ton to the cost of producing the fire-clay immediately under the railway: That no mere money security could have met the case. The reporters also stated, that they did not think the increased traffic, or the alterations of the structure and uses of the railway, materially affected the practicability of working the minerals under or adjacent. At the resumption of the debate the following authorities were cited by pursuer:-Ersk. 2, 1, 2; Dunlop, 1st Dec. 1803; Hume's Dec., p. 515; Glassford, 12th May 1808, Hume's Dec., p. 516; Laurence v. Great Northern Railway, 22d Feb. 1851, Railway Cases 6, p. 656. By defender-Harris v. Ryding, 1839; 5 Meeson and Welsby Reps., p. 60; King v. Leeds Railway, 1835, 3 Adolph. and Ellis, p. 683; Samuel v. Edinburgh and Glasgow Railway, 3d March 1849, supra, xxi., p. 341; Turner v. Sheffield Railway, 7th July 1842, 3 Railway Cases, p. 222. At advising Lord President.-This is a case which called for very anxious consideration. I have not been able to make up my mind to support the interlocutor of the Lord Ordinary. The pursuer is proprietor of minerals under the railway of the defenders, and under lands adjacent to the railway. The ques tions raised between the parties relate to the right of the pursuer to work those minerals, and to the conditions on which the defenders are entitled to restrain his working of them. This railway, in the course of its history, has undergone certain mutations. It was originally a small mineral railway, belonging to a limited company. It afterwards was extended and augmented, and became the property of a greater company; and, finally, it has passed into the hands of the defenders, the Caledonian Railway Company, has been incorporated with that railway, and has thus become one of the great trunk lines of Scotland. It is with these defenders that the question has arisen. If the question depended entirely on the statute of incorporation of the defenders, I should have had no difficulty in holding that the pleas urged by them in this action were untenable, for the Caledonian Railway Company, from the first moment of their existence, were under the provisions of the general acts as to railways; these general acts being held as incorporated in the special act of that company, and the mining clauses in the general railway act being quite opposed to the propositions here maintained by the defenders. These mining clauses were adopted by the Legislature in 1845, as the most equitable arrangement that could be devised for adjusting the relative interests of railway companies, on the one hand, and the owners of minerals under and adjacent to railways, on the other hand. The bearing of these clauses was in substance to this effect: that, in all cases in which the minerals under the line were not expressly conveyed to the company, they should be held as reserved by the owner of the land; but that, if he should, at any time, resolve to work the minerals within a certain distance of the line, he should give notice to the company, and then the company should be entitled to require that the minerals should not be worked, and the company would in that case be bound to make compensation for such part of the minerals as they desired to be left unworked. There were also a variety of regulations as to the working of the minerals. The defenders, from their first existence as a company, have been under the operation of that law. They have been so, not only as to the particular line contemplated in their original act, but as to all the enlargements and extensions of their scheme. They carried that element of their constitution along with them wherever they went, whether their progress was effected by making new branches, or by purchasing up and amalgamating and incorporating with themselves, by authority of statute, smaller lines already made. But it was not incompetent for them to enter into special transactions with mineral owners; and it was not incompetent for them to acquire by legalized purchase of other lines, the benefit of any transactions which these lines had made with mineral owners. Accordingly, in this case, while the pursuer seeks to have his rights declared, in terms of the provisions of the general acts, or nearly to that effect, the defenders rest their defence mainly on the particular terms and conditions of the transaction between their predecessors, the original Garnkirk Company, and the pursuer, when the surface was acquired for the railway, and the minerals were reserved by the owner. I think that, in any view of the case, it is impossible to maintain with success, that the terms of the transaction referred to are sufficient to solve the whole of this question, for that transaction, or the special condition contained in it as to working of minerals, did not embrace the whole minerals now in question. But the defenders, to meet that difficulty, call in aid the common law, which, they contend, protects them effectually against any operations of the pursuer on his own adjacent lands, whether on the surface or under ground, dangerous to their railway, or detrimental to the particular use for which they acquired from him the ground whereon the original railway was constructed. I am not prepared to accord to the common law all the stringency in that respect which the defenders would ascribe to it. The Lord Ordinary, however, has given full effect to each and both of these defences. I cannot go so far as the Lord Ordinary has done in regard to either ground of defence. In so far as the defence is founded on the original transaction between the pursuer and the Old Garnkirk Railway Company, it involves the terms and conditions of the original statute of that company in 1826, and the conveyance consequent upon the statute. The important clauses in the original statute are the 1st and the 11th sections.-(Reads.) On these clauses I would observe-1st, That the statute contemplates a purchase by the railway company of the minerals at their value, as the same may be ascertained by a jury; in which case the owner would get the price or value from the company. That arrangement the statute contemplates as one alternative. 2d, It contemplates another alternative arrangement, namely, that the owner should reserve the minerals, and afterwards work them for his own profit, in which case also the owner would get or realize the value of the minerals, working them for his own profit or use. 3d, The statute does not, in either of its alternatives, contemplate that the railway company are to get the perpetual use of the minerals for the support of their railway without paying for that use; nor does it contemplate that the owner is to lose the value of his minerals by reason of the railway, without getting any compensation for the loss. It is possible that, in consequence of the manner in which the pursuer has availed himself of the option given by the statute, and of the other circumstances of the case, the reverse of all these things may be the legal result; still, if that be so, it is a result the reverse of everything that the statute contemplated. With reference to the second alternative the statute provides, that, in the event of the owner reserving the minerals, he is to be subject to a certain condition as to the working of them. This implies a future working of the minerals by the owner for his own profit as an event possible, and not to be rendered impossible by reason of the railway; and it implies that the working is to be under a condition possible, not impossible. He was to find good and sufficient security for all damage that might result. The security there contemplated was not precautionary measures which would preclude the possibility of damage, or that security which consists in not working, but pecuniary security to make good the damage which the statute contemplates might occur from working. This is not unimportant with reference to some of the matter contained in the report of Messrs. Leslie and Landale, and it |