Earl of Hopetoun v. North British Railway Co.

Subject_1 Railway Subject_2 Mines and Minerals Subject_3 Shale in Banks of Cuttings Subject_4 Construction of Special Act and Disposition following thereon. Facts: A special Act of Parliament in 1838 authorising the making of the Edinburgh and Glasgow Railway enacted that in the price of the lands to be purchased by the railway company from the Earl of Hopetoun was to be included “the value of the whole stone, lime, coal, ironstone, silver, tin, lead, or slate which may require to be dug up or excavated in the formation of the said railway through the said lands.”

Held that the railway company were not under the said disposition and Act of Parliament the owners of the “minerals,” including under that term “shale,” above the formation level of the railway forming part of the sides of cuttings through which the railway ran, and within the railway company's fences.

At the time of the formation of the railway, the railway company and John, Earl of Hopetoun, by deed of submission dated in 1839, referred to arbiters all claimsand demands for the agricultural value, &c., of the lands and others to be then taken and occupied by the railway company, “and also all claim or demand for the value of any stone or minerals to be taken and used by the said railway company out of the said estates,” all in terms of the agreement referred to in the said submission Page: 624 ↓

The pursuer pleaded—“(1) In respect of the terms of the statute and disposition of 1847 referred to, the pursuer is entitled to decree as concluded for. (2) The shale in question being the property of the pursuer, he is entitled to decree as concluded for.”

The defenders pleaded—“(1) The defenders are entitled to absolvitor, in respect that the subjects in dispute belong to them. (2) Separatim —They alone are entitled to remove the minerals in dispute, on complying with the provisions of the 28th section of the special Act. (3) In any ease the pursuer is not entitled to interfere with the subjects in dispute without the consent of the defenders, since they are within the boundarics of the land purchased by the defenders or their authors, and may at any time be required for the widening of their line or otherwise.”