Jurisdiction – Preservation of Property – Mandatory Injunction – Mine – Pumping – Lease of Colliery – Usual Clauses – Reference to Chambers to settle Lease – Declaration that particular Clause is not to be inserted: STRELLEY v PEARSON. [1879 S. 257.] [CHANCERY DIVISION] (United Kingdom)
STRELLEY v PEARSON.
[1879 S. 257.]
15 Ch D 113
HEARING-DATES: 3, 4 May 1880
4 May 1880
Jurisdiction – Preservation of Property – Mandatory Injunction – Mine – Pumping – Lease of Colliery – Usual Clauses – Reference to Chambers to settle Lease – Declaration that particular Clause is not to be inserted – Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 8 – Rules of (Court, 1875, Order LII., r. 3.
Under Order LII., rule 3, of the Rules of Court, 1875, the Court has power in a proper case to grant an interim injunction to restrain a defendant from ceasing to pump water out of a mine.
Independently of a special custom, a provision that the lessee shall be entitled to determine the lease when the mine is incapable of being worked at a profit is not a usual clause in the lease of a colliery:-
Held, on the evidence, that such a provision is not usual in a lease of a colliery in Derbyshire.
Lord, Abinger v. Ashton n(1) explained.
When the Court directs a reference to Chambers to settle the terms of a lease, it will, when convenient, at the same time make a declaration as to the insertion of a particular clause with regard to which an issue has been raised in the pleadings.
THIS was an action for the specific performance by the Defendant of an agreement to take a lease of a colliery from the Plaintiff. The Plaintiff also claimed an injunction to restrain the Defendant from permitting the colliery to be drowned or other irreparable
n(1) Law Rep. 17 Eq. 358.
injury to accrue thereto by reason of the Defendant’s default in performance of his part of the agreement.
The agreement in question was dated the 5th of August, 1873, and by it the Plaintiff agreed to grant a lease to the Defendant of two seams of coal, called the Blackshale and the Kilburn, seams, under the Oakerthorpe estate, inDerbyshire, for the term of thirty-one years, and the Defendant agreed to accept the lease. It was provided that the lessee should work the mines with due diligence, and that all provisions and covenants usual in leases of collieries should be introduced into the lease. Soon after the date of the agreement the Defendant was let into possession of the mines, and he continued to work them down to the 18th of April, 1879, when he ceased to raise any coal out of the Blackshale seam, and on the 29th of April he stopped pumping out the water. He had a few days previously given notice to the Plaintiffs of his intention to close the colliery and cease pumping.
The writ in the action was issued on the 20th of May, 1879, and the Plaintiff at once gave notice of motion on the 23rd of May for an injunction to restrain the Defendant from ceasing pumping, and from permitting any other irreparable injury to accrue to the mine by reason of default on the part of the Defendant in performing his obligations under the agreement, or for such other order as might be proper. The motion did not come on for hearing on the 23rd of May, and the hearing was afterwards delayed in consequence of the cross-examination of a witness, and the motion was not heard before the Long Vacation. The result was that the mine was drowned. Ultimately, on the 7th of November, the motion was by consent ordered to stand to the trial of the action.
This was the trial. The principal questions argued were, whether the costs of the motion ought to be costs in the action, and whether the lease ought to contain a proviso enabling the lessee to determine the lease in the event of its being impossible to work the mines at a profit. Evidence was adduced on both sides upon the question whether such a proviso was a usual clause.
Cookson, Q.C., andColt, for the Plaintiff:-
Even before the Judicature Act the Court would have had jurisdiction
to restrain the Defendant from discontinuing the pumping: Lane v. Newdigate n(1) ; Storer v. Great Western Railway Company n(2) ; Goodson v. Richardson n(3) ; Nuneaton Local Board v. General Sewage Company n(4) ; Cooke v. Chilcott n(5) . At any rate, there is now jurisdiction to grant such an injunction: Judicature Act, 1873, s. 25, sub-s. 8; Rules of Court, 1875, Order LII., rule 3; Beddow v. Beddow n(6) ; Hedley v. Bates n(7) . The injunction ought to be granted until the execution of the lease. The motion was a proper one to make, and the Plaintiff ought to have the costs of it as costs in the action. The question whether the lease ought to contain the proviso insisted on by the Defendant should be decided now, even though it be referred to Chambers to settle the terms of the lease. The question whether such a proviso is usual has been distinctly raised in the pleadings: Henderson v. Hay n(8) ; Blakesley v. Whieldon n(9) .
North, Q.C., and F. Thompson, for the Defendant:-
The Court has no jurisdiction to grant such an injunction. In Rolleston v. New n(10) it was assumed that there was no such jurisdiction. Beddow v. Beddow is not an authority that the principles on which the Court acts in granting injunctions have been altered by the Judicature Act. Day v. Brownrigg n(11) shews that the principles remain the same. Cooke v. Chilcott is distiuguishable. If the Plaintiff would not have been entitled to an injunction to compel us to go on pumping for the whole term of the lease, he cannot give the Court jurisdiction merely by asking for an injunction for a shorter time. In Lane v. Newdigate the injunction was granted on an interlocutory motion. It would be an entire novelty to make such an order at the trial.
[FRY, J.:- I do not see my way now to restrain the Defendant from discontinuing the pumping until the execution of the lease. The Plaintiff consented to the motion standing over to the trial, and thus practically abandoned it. But I am disposed to think
n(1) 10 Ves. 192.
n(2) 2 Y. & C. Ch. 48.
n(3) Law Rep. 9 Ch. 221.
n(4) Ibid. 20 Eq. 127.
n(5) 3 Ch. D. 694.
n(6) 9 Ch. D. 89, 92.
n(7) 13 Ch. D. 498.
n(8) 3 Bro. C. C. 632.
n(9) 1 Hare, 176.
n(10) 4 K. & J. 640.
n(11) 10 Ch. D. 294.
that the Plaintiff is entitled to the costs of the motion, because it was properly made at the time with a view to the interim preservation of the property.]
The object of a mining lease is the mutual profit of the lessor and the lessee. The lessee ought not to be compelled to go on working when no profit can be made. The evidence shews that it is usual in mining leases to insert a clause enabling the lessee to determine the lease under such circumstances, and independently of any custom this would be reasonable: Gowan v. Christie n(1) ; Lord Abinger v. Ashton n(2) ; Wheatley v. Westminster Brymbo Coal Company n(3) ; Smith v. Morris n(4) .
PANEL: FRY, J
JUDGMENTBY-1: FRY, J.
FRY, J.: :-
It is not now in dispute that the Plaintiff is entitled to judgment for the specific performance of the agreement, and that will carry with it the general costs of the action. Two questions remain for decision. The first arises upon the motion. Now, what happened with regard to the motion is this, – evidence was filed on the part of the Plaintiff on the 22nd of May, 1879, and on the 27th, 28th, and 29th of May affidavits were filed on the part of the Defendant, and those affidavits set up a twofold defence to the entire action. The first defence was that no Kilburn coal existed under the Oakerthorpe estate, and the other was, that under the stipulation in the agreement that the usual clauses should be inserted in the lease it would be necessary to insert a power for the lessee to determine the lease in the event of the mines being found incapable of being worked at a profit; that such had been found to be the case, and that accordingly the Defendant was in a position to put an end to the lease. These were serious contentions on the part of the Defendant, and they placed the Plaintiff in this difficulty. If things were allowed to go on as they were the mine would be drowned out, and if the Defendant was successful the Plaintiff would find in the result that he had returned upon his hands a drowned-out colliery. On the other hand, if the Defendant, who had been pumping down to April,
n(1) Law Rep. 2 H. L., Sc. 273.
n(2) Ibid. 17 Eq. 358.
n(3) Law Rep. 9 Eq. 538.
(4) 2 Bro. C. C. 311.
was required by the Court to go on pumping until the hearing, he would only be required to do that which he had been doing for some years past, and which could be done at a small expense. The affidavits of the Defendant were replied to by the Plaintiff on the 7th of June; thereupon followed a cross-examination of the witnesses, and in the result the cross-examination of the principal witness was not completed till the beginning of the present year. Things taking that turn, it was arranged between counsel that the motion should stand over until the hearing, and that was accordingly directed in November, 1879. In order to determine whether the Plaintiff is entitled to the costs of that motion as part of the costs of the action, it appears to me that I must decide whether, at the time when the notice of motion was given, and looking at the nature of the defences set up, the motion ought to have been acceded to, and would have been acceded to by the Court if it had then come on to be heard. In my judgment it would have been acceded to. As I have already pointed out, the Plaintiff was in a position of considerable difficulty. He had no means himself of doing the pumping, because the colliery was in the possession of the Defendant. He was in any event seriously interested in the continuing of the pumping, because if the Defendant should succeed the colliery would become the Plaintiff’s. Therefore in the meantime he was in that position of difficulty. In my judgment rule 3 of Order LII. is addressed to that very kind of difficulty. It provides that “it shall be lawful for the Court or a Judge upon the application of any party to an action, and upon such terms as may seem just, to make any order for the detention, preservation, or inspection of any property being the subject of such action.” That the drowning out of this colliery tended to its destruction can hardly be doubted from the mere statement of the fact, but the evidence upon the point is ample. It shews that the effect of it was singularly injurious to the value of the colliery. And, under all the circumstances, having regard to the contract between the parties, and the course of conduct of the Defendant – continuing the pumping down to April, 1879 – to the nature of the defences which he set up, the difficulty in which the Plaintiff was placed, and the very small injury (if any) which would hare resulted to the Defendant by his being required to continue the
pumping, and the power of the Court to provide against his suffering any injury by requiring the Plaintiff to make some payment into Court, or to undertake to make some payment in the event of the Court ultimately thinking that the order ought not to have been made, – considering all these things, I think that the order would have been made upon the motion if it had come on for hearing in the ordinary course shortly after the notice was given. Therefore, according to my judgment, the costs of the motion must be costs in the cause.
The other question which remains for determination is whether it is usual for leases of collieries to contain a provision to the effect that, when the mines demised are incapable of being worked to a profit, the lessee should be entitled to determine the lease. The burden of proof, in my judgment, rests on those who assert that such a clause is usual.
[His Lordship referred to the evidence on the point.]
I cannot on the evidence come to the conclusion that such a clause is usual. On the contrary, the weight of evidence seems to me very distinctly with the Plaintiff, who denies the Defendant’s proposition. Two other arguments have been urged. In the first place it appears that such a clause is not uncommon in Scotland, and the observations of one of the noble Lords in Gowan v. Christie n(1) were referred to. But the practice inScotlandand in England is very different in many respects in regard to dealings in landed property and mines, and it is impossible for me to hold the one practice to be a precedent for the other, or an authority binding upon me. The other argument was derived from the observations of the Master of the Rolls in Lord Abinger v. Ashton n(2) . But he was there dealing with the proper construction to be put upon a covenant to work mines, and he pointed out that an unreasonable construction had been contended for, which might require the lessee to work at a continuous and regular loss. The difference between that and the present argument is very plain. There the Master of the Rolls was only shewing that, during the continuance of the lease, the lessee might not be under any obligation to do more than pay the dead rent; he might be under no additional obligation to work at an actual loss. Here
n(1) Law Rep. 2 H. L., Sc. 273.
n(2) Law Rep. 17 Eq. 358.
the contention is that the lessee, if he cannot work at a profit, has a right to escape from the payment of the dead rent which is reserved during the term. That argument, as it appears to me, is resorted to simply because no better can be adduced, and it is one which cannot possibly succeed in inducing me to hold that such a clause is usual. The two things are plainly very different. Therefore, weighing the whole argument, as well as the evidence before me, I come to the conclusion that the Defendant has not supported the contention which he has raised in his defence, and that, on the contrary, the Plaintiff is right in denying that it is usual to insert such a clause. I shall therefore direct specific performance of the agreement, with the usual reference to Chambers to settle the lease in case the parties differ, except that I shall make a declaration that the Defendant is not entitled to require a clause to be inserted to the purport or effect that, if the mine is not capable of being worked at a profit, the lessee shall be entitled to determine the lease. I direct that the costs of the motion are to be costs in the cause. I ought to add this. When the case was opened I was asked to grant an injunction during the interval between the present time and the execution of the lease. For the reason which I have already pointed out, I cannot accede to that view. It was agreed between counsel as long ago as November last that the motion should stand over. The result was that the Plaintiff did not any further urge the pumping until the trial. To require the Defendant to begin again the pumping which has ceased for more than a year, would, in my opinion, be useless and undesirable, and for that reason I do not accede to the application that the injunction should be granted in the interval until the execution of the lease.
Solicitors for Plaintiff: Aldridge, Thorn, & Morris, agents for Harris & Morton, Halstead.
Solicitors for Defendant: Norris, Allens, & Carter, agents for J. P. Gardner, Cannock.
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