Duke of Abercorn v. Merry & Cuninghame, Ltd [1909] ScotLR 574 (12 March 1909)

Duke of Abercorn v. Merry & Cuninghame, Ltd [1909] ScotLR 574 (12 March 1909)

If the further damage to adjacent land was not, and could not reasonably have been, known at the time of the first action, and if it results from a new or extended subsidence, a new action is not barred. The rule against multiplicity of actions does not preclude a subsequent claim for unforeseen damage to other parcels of land, provided the pursuer was excusably ignorant of such damage at the time of the first claim.

Citation
[1909] ScotLR 574
Parties
Pursuer: Duke of Abercorn; Defender: Merry & Cuninghame, Limited
Jurisdiction
Scotland
Judgment Date
12 March 1909
Procedural Posture
Civil / Appeal Against Dismissal; Interlocutor Recalled and Proof Before Answer Allowed
Outcome
Interlocutor of dismissal recalled; proof before answer allowed.
Legal Topics
Mineral Lease, Reparation, Subsidence, Res Judicata, Damages, Multiplicity of Actions
Property Law Contract Law Tort Law Mineral Lease Reparation Subsidence Res Judicata Damages +1 more

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Parties

Duke of Abercorn

Pursuer

Merry & Cuninghame, Limited

Defender

Procedural Posture

Civil / Appeal Against Dismissal; Interlocutor Recalled and Proof Before Answer Allowed

Legal Issues

  1. 1 Whether a second action for damages for subsidence is barred by the prior action and settlement for similar damage to adjacent land under the same lease.
  2. 2 Whether the cause of action is the excavation or the subsidence, and whether new or unforeseen damage to adjacent land can ground a new claim.

Ratio Decidendi

If the further damage to adjacent land was not, and could not reasonably have been, known at the time of the first action, and if it results from a new or extended subsidence, a new action is not barred. The rule against multiplicity of actions does not preclude a subsequent claim for unforeseen damage to other parcels of land, provided the pursuer was excusably ignorant of such damage at the time of the first claim.

Court Disposition

Interlocutor of dismissal recalled; proof before answer allowed.

Orders

  • Proof before answer allowed.