Edinburgh and District Water Trustees v. Clippens Oil Co.

Held (1) that the violation of the statutory provision by working part of the minerals within the prohibited limits before giving notice did not deprive the mine-owner of his right to work the remainder of them after giving such notice; (2) that the proposed method of working was not “unusual” in the sense of the statute.

Per Lord M'Laren—The condition of giving notice is an inhibitory and not a resolutive condition. The remedy of the owner of the works, which are protected by statute, is to have interdict against the further prosecution of the mining until notice is given, and damages for such mining as may have taken place in disregard of the statutory condition.

Opinion (by Lord Pearson) that the provisions of section 22, dealing with mineral workings within 40 yards of the pipe track, apply to the case where the undertakers have acquired the minerals lying under the track.

As regards the first branch of the prayer, which need not be further dealt with, the respondents ultimately lodged a minute undertaking “not to work further any of the minerals under said strip of ground.” The averments and contentions of the parties as regards the second and third heads of the prayer appear fully in the opinion of the Lord Ordinary, infra .

The respondents pleaded, inter alia —“(4) In respect the complainers have refused, after notice by the respondents, to purchase the minerals under and adjacent to the wayleave pipe-track, or even to make an agreement with the respondents for the support of said pipe-track, the respondents are entitled to work said minerals. (6) The removal of the stoops under and adjacent to the said wayleave pipe-track, being in the natural, proper and usual course of working the respondents' mineral field, the complainers are not entitled to the interdict craved.”