Waddell v. The Governors of Daniel Stewart's Hospital

Subject_1 Landlord and Tenant Subject_2 Lease Subject_3 Construction Subject_4 Damage by Subsidence — Mineral Working. Facts: An agricultural lease reserved to the landlord right to work minerals, the landlord “being always bound and obliged to pay to the tenants all damage which may be done to the surface of ground by the exercise of the above powers, and that by deduction from their rent as the same shall be fixed by two neutral men mutually chosen.”

In an action for arrears of rent by the landlord against the agricultural tenant the defender averred damage to the surface of the ground by subsidence. Held that the clause in the lease included such damage, and was not confined to damage to the surface by operation on the surface, and that accordingly the action was excluded by the clause of arbitration.

By lease dated 7th June and 19th October 1875 the Governors of Daniel Stewart's Hospital let to John Waddell & George Waddell, contractors, Edinburgh, and the survivor and his heirs, a part of the estateof Balbardie, in the county of Linlithgow, known as “Meikle Inch,” for nineteen years, at an annual rent of £240 sterling. In the lease Page: 816 ↓

The defender pleaded—“(1) This action is excluded by the arbitration clause in the lease between pursuers and defender. (2) The defender having been deprived to a material extent by the pursuers of the beneficial use of the subjects let to him, is entitled to retain the rent payable by him to them, to the extent of the damage he has suffered. (4) The defender is, in terms of the lease of 7th June and 19th October 1875, entitled to deduct from his rent all damage sustained by him by the mineral workings under his lands.”

The rent of Meikle Inch Meadow is £20, payable half-yearly, and four sums of £10 each are concluded for, with interest from the several terms Martinmas 1887, Whitsunday 1888, Martinmas 1888, and Whitsunday 1889, when these rents became due. No defence is stated to this part of the action except that the defender has a claim of damages for injury to the other subjects, Meikle Inch, which largely exceeds the arrears of rent of Meikle Inch Meadow. There is no doubt that the defence founded on alleged damage caused to a different Page: 817 ↓