Forrest's Trustees v. Merry & Cuninghame, Ltd [1908] ScotLR 290 (10 January 1908)

Forrest's Trustees v. Merry & Cuninghame, Ltd [1908] ScotLR 290 (10 January 1908)

The clause in question was not an absolute prohibition but a stipulation for payment if coal was worked in excess of the amount required to pay fixed rents. The defenders were entitled to work coal in the adjoining properties beyond the fixed rent threshold upon payment of 1d. per ton, and the pursuers were not entitled to interdict.

Citation
[1908] ScotLR 290
Parties
Pursuer: Miss Jane Wilson Forrest, Woodhouse, Blantyre, and others, testamentary trustees of the late John Clark Forrest of Auchinraith, Blantyre; Defender: Merry & Cuninghame, Limited, iron and coal masters, Glasgow
Jurisdiction
Scotland
Judgment Date
10 January 1908
Procedural Posture
Civil / Appeal (inner House, First Division)
Outcome
defenders assoilzied (absolvitor granted)
Legal Topics
Lease Construction, Mines and Minerals, Penalty Clause, Wayleave, Interdict
Property Mining Contract Lease Construction Mines and Minerals Penalty Clause Wayleave Interdict

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 9 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Miss Jane Wilson Forrest, Woodhouse, Blantyre, and others, testamentary trustees of the late John Clark Forrest of Auchinraith, Blantyre

Pursuer

Merry & Cuninghame, Limited, iron and coal masters, Glasgow

Defender

Procedural Posture

Civil / Appeal (inner House, First Division)

Legal Issues

  1. 1 Whether the clause restricting working of adjoining minerals was an absolute prohibition or a qualified prohibition with a penalty for contravention
  2. 2 Whether payment of 1d. per ton constituted a penalty or an option to contravene

Ratio Decidendi

The clause in question was not an absolute prohibition but a stipulation for payment if coal was worked in excess of the amount required to pay fixed rents. The defenders were entitled to work coal in the adjoining properties beyond the fixed rent threshold upon payment of 1d. per ton, and the pursuers were not entitled to interdict.

Court Disposition

defenders assoilzied (absolvitor granted)

Orders

  • The interlocutor of the Lord Ordinary recalled.
  • Action dismissed; defenders assoilzied.