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Lease of Coal Mines – Covenant by Lessees – Mode of Working – Working Seams in consecutive Order – Evidence of Custom – Bill for Injunction: LORD ABINGER v ASHTON. [1872 A. 15.] (United Kingdom)

[L R] 17 Eq 358

LORD ABINGER v ASHTON.

[1872 A. 15.]
[EQUITY]
[L R] 17 Eq 358
HEARING-DATES: 11, 12 December 1873
12 December 1873
CATCHWORDS:
Lease of Coal Mines – Covenant by Lessees – Mode of Working – Working Seams in consecutive Order – Evidence of Custom – Bill for Injunction.

HEADNOTE:
By a lease of collieries in Cheshire, certain pits or mines, comprising the T. mine, which was the uppermost, the B. mine, which was the next, and the C. mine, which was the lowest, were, with other higher and intervening mines, demised to lessees with power to work and get coal from the same at a fixed rent, and with a covenant that they should work and carry on the mines with their utmost skill and ability, in the best and most effectual manner, to the best advantage, and according to the common mode and usual practice of carrying on coal works or collieries with effect.

On a bill by the lessor, alleging that the Defendants, after having for some time worked the said three mines, had ceased working the T. mine, and also that they were working the C. mine in advance of the B. mine, and praying injunctions accordingly:-

Held, that, under the terms of the covenant, the Defendants were entitled to work any of the mines without working all, or all that they had commenced to work; that, according to the evidence before the Court, it was the common practice in the district to work a lower seam of coal before working a higher; that there was no ground for saying that the Defendants were committing a breach of the covenant; and the bill was dismissed with costs.

INTRODUCTION:
THIS was a suit by the owners of an estate in Dukinfield and Newton, in the county of Chester, under which certain coal mines were situated, against the lessees of the said mines, to restrain them from further digging any coal or carrying on any workings in one of the mines, called the Cannel Mine, until they had carried on the workings in another mine, called the Black Mine, to the same point to which the working of the first-named mine had been extended, and also restrain them from working the Blackand Cannel Mines without working the Town Lane Mine.

The mines or beds of coal and cannel in question in the suit consisted (besides many others which had never been worked) of the Town Lane Mine, which was the uppermost, the Black Mine, which was the next, and the Cannel Mine, which was the lowest of the three which had been worked.

Before the date of his lease to the Defendants, the lessor, Francis Astley, had sunk a pit called Astley’s New Pit, and by means of it

had gotten portions of the Town Lane Mine, and had begun to work it; he had also driven out roads and airways, or air gates, from the pit on the north and south sides to the boundary of the Town Lane Mine, and had worked back from that furthest extremity on the north side, and gotten the Town Lane Mine or seam of coal, working backwards on the north side, and was preparing to work on the south side, and had also placed machinery in the pit for the purpose of working it.

By the lease of the 15th of November, 1856, made between Francis Astley of the one part, and the Defendants of the other part, Astley demised to the lessees “all such parts and portions, or so much and such part of all those several mines, delphs, veins, and beds of coal and cannel lying and being under the lands and grounds of Francis Astley as were not then leased, and called the Black Mine, the Town Lane Mine, and the Peacock Mine, and all other mines of coal and cannel lying between the Great and Roger Mines and the Peacock Mine (with certain exceptions), and also the pit called ‘Astley’s New Pit,'” with its steam engines and buildings, and all the machinery therein mentioned, with the power to get the same mines, and to make and sink any pits, and drive any tunnels or trenches, and to make any canals, watercourses, and fences, and to set up any engines or machinery therein mentioned: To hold the demised premises for twenty-three years at the rents and quarterages thereinafter mentioned in particular for the pit called Astley’s New Pit, in addition to the quarterages, the yearly rent of £3000, payable quarterly, the first payment to be a quarter after the lessees should, by sinking Astley’s New Pit 300 yards below the present depth, pursuant to a covenant for that purpose thereinafter contained, had arrived at the mine of coal called the Black Mine, and until that time £250 only quarterly.

The lease also contained provisions for working the mines, for using the roads for the purpose of carting away the produce of the mines, and also a covenant by the lessees “that they shall and will at all times during the term, work, use, manage, and carry on the said mines thereby demised with their utmost care and ability, and with a competent number of workmen, and in the best and most effectual manner, to the best advantage, and according

to the common mode and usual practice of carrying on all coal works or collieries with effect, and according to the true intent and meaning of these presents; and that no coal or cannel coal shall be riddled at the bottom of the coal pits, or either or any of them, but that all the coal, cannel, and slack shall be gotten or brought up from the said mines; the coal and cannel hereby demised, and each and every of them shall be free and honestly gotten or brought up out of all the coal pits then open, or that shall be made or sunk by virtue of such lease to the ground above in order to be freely and properly sold.”

The Defendants sunk the pit called Astley’s New Pit, so as to reach the mine called the Black Mine, which they commenced working in 1858.

In 1862 the Defendants carried tunnels from Astley’s New Pitlower than the Black Mine down into the mine or seam of coal called the Cannel Mine, which was said to produce coal of a better quality and commanding a higher price than that produced from the Town Lane Mine and the Black Mine. They subsequently, under a new agreement, sunk a second shaft, which was used as the upcast shaft for ventilation, and was also used until the accident hereinafter stated for the purpose of working the Town Lane Mine, the two lower mines being worked through the Astley’s New Pit. In the beginning of 1870 an accident occurred in the Dunkirk Collieryof the Defendants, by which several lives were lost, which caused attention to be directed to the ventilation of the mine.

In September, 1870, the Plaintiffs, the trustees under the will of Francis Astley (who had died in 1866), caused a written requisition to be sent to the Defendants, requiring them to work in a proper and workmanlike manner the coal called the Town Lane Mine, and to keep open and in proper condition all the airways and roads in the same mine, pursuant to the provisions in the said lease.

The Plaintiffs alleged that the Defendants, for some time after working the Town Lane Mine in the manner commenced by the said Francis Astley, at the extremity of the mine and of the roads and airways commenced by Astley, worked the same mine on the south side from near the mouthing of the mine into the air or upcast pit, by means of scaffolding cages and machinery, and

worked this without having proper pillars on each side of the roads and airways as far as they worked, and so choking up the roads and airways beyond the workings as made by Astley, and left by him at the commencement of the lease; that the Defendants afterwards improperly worked the Town Lane Mine, and worked it only a few hundred yards from the mouthing, and shut up the airways and roads in the said mine, and left a large block of the Town Lane Mine unworked and ungotten, and had allowed the levels and airgates and water-levels in the same mine to become choked and out of repair.

The Plaintiffs further alleged that the Defendants were working the Black Mine and Cannel Mine without working the Town Lane Mine, whereas they were bound to continue the workings of each of the three mines after they had commenced them until each mine was exhausted, and to work the block of the Town Lane Mine which they had left unworked; that the Defendants had lately ceased to work the Town Lane Mine, and had taken away the scaffolding and machinery placed by them on the demised premises for working that mine, and had done so without regard to the covenants in the lease and the practice of good mining, under the pretext that they could not otherwise comply with the provisions of the Act for the regulation of mines, 23 & 24 Vict. c. 151, s. 10, r. 1, which related to ventilation.

The Plaintiffs further alleged that the Defendants were working the Cannel Mine to the detriment of the Town Lane Mine and the Black Mine; that the Cannel Mine was only fifty yards below the Black Mine; and that, having regard to the nature of the coal measures, the Defendants ought, by the rules of good mining and according to the covenants in the lease, not to work the Cannel Mine beyond and in advance of the workings of the Black Mine, but that they had worked, and were continuing to work, the Cannel Mine in advance of the workings of the Black Mine.

The bill prayed, First: That it might be declared that the Defendants were bound under their lease not to work the Cannel Mine, and that they might be restrained by injunction from further digging any coal or carrying any workings in the Cannel Mine until they had carried on their workings in the Black Mineto the same point to which they had extended their workings in

the Cannel Mine, and from working the Cannel Mine to a point beyond their workings of the Black Mine; Secondly: That the Defendants might be restrained from allowing the roads and airways in the Town Lane Mine to remain choked up, or otherwise than open and in proper working order, and from continuing the removal of the machinery, scaffolding, and cages for working the Town Lane Mine; Thirdly: That it might be declared that the Defendants were bound to continue to work the Town Lane Mine in a proper manner, and might be restrained from working or getting out coal from the Black Mine and Cannel Mine, or from the Dunkirk Colliery, without continuing to work the Town Lane Mine in a proper manner and according to the covenants in the lease; Fourthly: That the Defendants might be ordered, in addition to, or substitution for, any portion of the relief prayed, to pay to the Plaintiffs such damages as the Court should direct; and for consequential relief.

The Defendants, by their answer, submitted that working the said mines in the manner they had done was justified by the circumstances of the case; and that it was not to the prejudice of the other mines comprised in the lease, and was consistent with the covenants in the lease, and was in accordance with the rules of good mining.

The Defendants stated that, after the accident before referred to, the Government Inspector pronounced the ventilation inadequate, and gave his opinion that with the mode of working then practiced, namely, raising the coal from the upper mine through the upcast shaft, the ventilation was inadequate for safety, and suggested that the upcast shaft or Town Lane Pit should be devoted exclusively to the purposes of ventilation, for which alone it had been originally sunk. They stated that they then caused a minute inspection of the colliery to be made by Mr. Cross and Mr. Higson, two eminent mining engineers, who made a report on the 21st of September, 1870, as to the causes of the defective ventilation of the colliery, and after recommending the removal of a scaffold at the Town Lane Mine, they continued thus: “We are of opinion that the Lower Mine cannot be sufficiently and safely ventilated so long as the Town Lane is being worked; and as it appears that the protection of life is an equal protection of

property, we advise you to abandon the Town Lane Mine, and work with increased energy the Black and Cannel Mines, and thereby avoid the present excessive risk, at the same time that you will secure a better result for all parties concerned.”

The Defendants stated that the Cannel Mine was about fifty yards only below the Black Mine; that they were advised by competent authorities that they ought not, by the rules of good mining, or according to the covenants in the lease, to abstain from working the Cannel Mine to a point below and in advance of the workings in the Black Mine.

The Defendants submitted that they ought to allow the roads and airways in the Town Lane Mine to remain as at present; and that they were working the Black Mine and Cannel Mine in the only proper manner, which was to work them without working the Town Lane Mine.

There was a considerable amount of evidence on both sides. The following were some of the most material passages in the Plaintiffs’ evidence:-

Isaac Wheeldon, a mining agent in Cheshire, stated that “the common mode and usual practice of carrying on coal works of this character was, when the seams were not separated by a very great interval, to work the same together, or to work the upper seam in advance of the seam which was next below it, and not to work such lower seam in advance of such upper seam.”

Thomas Livesey, mining engineer, deposed as follows:- “The working of one mine under another has the effect of breaking the strata between the two mines, and the Black Mine being only fifty yards or thereabouts above the Cannel Mine, this would be likely to take place, and thus injure the Black Mine both as to the facility of working afterwards, and also as to the quality of coal, thereby doing an injury to the lessor.”

Isaac Wheeldon, in a further affidavit, said:- “The allegation in the Defendants’ answer to the effect that it was well known that no one would take a lease of collieries with a restriction requiring the mines to be worked successively from above downwards, does not accurately represent the practice of good mining as understood by competent engineers; the contrary is in many instances true, for in Derbyshire it will be found that lessees are absolutely restricted

by their leases from working lower mines in advance of those above them. When the distance between mines is considerable, a lower mine may be worked in advance of an upper without so much injury to the latter as where the distance is small; but under any circumstances the best and most approved method of working is from above downwards.”

The Defendants’ witnesses stated that it was the usual practice in the district to work a lower seam of coal in advance of an upper seam, when it was commercially desirable to do so. They mentioned specifically several instances where it had been done in South Lancashire and Cheshire, and said that they considered it the best practice in mining, for though it might damage the roads, that would only be an injury to the lessee of the mine, who would be bound to repair them, but that as regarded the mine itself, it would improve the upper mine and increase the coal to the extent of 50 per cent. The following were some of the material parts of the evidence:-

William Bryham, mining engineer and colliery proprietor, deposed:- That he had had considerable experience in working the cannel and other seams of coal in the Wigan district, and had to a large extent worked the cannel seam in advance of the super-incumbent seams without any injury or detriment to the latter; that he was at present working the Wigan five-feet and the Wiganfour-feet seams extensively over an area of about 200 acres from which the cannel and King coal seams had been recently exhausted (the two latter seams averaging in thickness about 4ft. 9in.), and lying at the respective distances of 120 yards and 144 yards above the cannel seam; that he was convinced from experience that they had not in the least suffered, and the seams were equally as productive and as economically worked as when the cannel was ungotten; that Wigan district was the real cannel district; that in all that district the great bulk of the cannel was worked out long before the coal; that he had many cannel mines under his management; that in every case he had gone on working the cannel first irrespective of the upper seams; that in the Wigandistrict there was ninety yards distance between cannel and upper seams, but it was not an uncommon practice to work out a lower seam when only twenty or twenty-five yards intervened; that in

his experience no material damage had ever arisen; that something depended on the thickness of the seams – working a thin seam like the cannel seam in the Astley Pit, 2ft. 3in., could not, in his opinion, cause damage to the upper mine; and that it was a common custom to work the best seams first, irrespective of position, unless where the lease specified; he considered it to be in accordance with the rules of good mining to work in that mode.

Alfred Hewlett, colliery proprietor and mining engineer, deposed:- That he was largely engaged in the management and conduct of collieries and iron works, and had been so for the last twenty-seven years – in fact from his boyhood; that he was a Fellow of the Geological Society of London, and President of the Mining Association of Great Britain, and was the Managing Director of the Wigan Coal and Iron Company, Limited, whose collieries were about the most extensive in the kingdom, employing about 10,000 hands, and raising about 2,000,000 tons of coal per annum; that he also had very considerable experience in the system of working mines in almost all the districts in the kingdom; that the workings of the Wigan Coal and Iron Company, Limited, extended over several thousands of acres of mining ground held under lease from a great number of landowners, and were situate in no less than thirteen different townships in and about Wigan; that it was entirely unusual, and contrary to the common practice of mining in that district, to compel a lessee to work or pay for an upper mine in quantity equal to that which might be gotten in the subjacent mine; that such a covenant did not exist in the leases granted to the Wigan Coal and Iron Company, Limited, and, in his judgment, such a covenant would not be conducive to good mining, nor would it be either in the interests of the lessor or the lessee; and that he considered the obligation attempted to be enforced upon the lessees (the Defendants in this suit) to be contrary to the usual custom of fair workmanlike and skilful mining, and to be entirely unusual in mining operations, and contrary to the true interests of either party.

Thomas Wynne, Her Majesty’s Government Inspector of Mines for the districts of North Staffordshire, Cheshire, and Shropshire, deposed:- That no alteration in the scaffolding or cages of the Town Lane Mine would suffice to enable it to be safely worked

concurrently with the other mines from the present shaft, and there was no plan left but sinking a separate shaft.

Jacob Higson, mining engineer, deposed:- That he was acquainted with the workings of collieries in Lancashire and Yorkshire, Warwickshire, North Wales and South Wales, in which districts he was actively engaged in the management; that he was well acquainted with all mining districts in England besides; that he was a member of the Institute of Mining Engineers (Midlandand South Midland), and also the North of England Institute of Mining and Mechanical Engineers, and also consulting engineer to some of the largest collieries in England; that he entirely dissented from the opinions expressed in the affidavits filed by the Plaintiffs in this matter as to the question of working the Cannel Mine in advance of the Black Mine; that, in his opinion, the Defendants ought not, by the rules of good mining, to cease working the Cannel in advance of the Black, and he denied that by so working, the mine was prejudiced in any way, and he did not know a case where a lessee was compelled to work two seams concurrently, or prevented working the Cannel or any other mine in advance, unless where he was positively restricted by the covenants in the lease, and in the absence of such covenants there was no such rule of good mining applicable to all cases as had been suggested on the part of the Plaintiffs; that commerce in that district had invariably regulated the working of the mines, and in most of the instances where lower mines had been worked in advance, it had arisen from the fact that coals from these mines were saleable at that particular time at a higher price than they might have been if the mine had been worked in strict rotation.

There was also specific evidence on the cross-examination of the Defendants’ witnesses to the effect that, in these and many other mines, working a lower seam in advance improved the working of an upper seam by loosening the strata, relieving the pressure, and so causing a much larger proportion of coal to come out in large blocks, and diminishing the proportion of slack, and that any countervailing injury could always be prevented by leaving a sufficient interval of time between the workings.

In reply to these affidavits, the Plaintiffs brought forward several witnesses, one of whom, John Brown, a mining engineer in

Staffordshire, made the following statement:- “With regard to the working of the Cannel Mine before the Black Mine, I believe there are some cases where, at a less depth from the surface than that in question, the working of an underlying may not damage an overlying mine, but, on the contrary, render its working more advantageous, that is, where no workings have been made, or headings or levels driven, in the overlying mine; but my experience shews that where headings have been made and pillars of coal left, or workings of any kind made in the overlying seam, any working out of underlying coal, being within fifty yards, or even more, will damage the roads in the upper seam and materially affect the pillars, so that when they are worked out great waste must ensue by the crushing of such pillars; and I believe that by working out the Cannel Mine under the roads and pillars in the Black Minethe produce of such pillars will be less valuable than if no workings had been made below; and I consider that the Defendants ought to be restrained from continuing such workings.”

William Seddon, a Lancashire colliery manager, deposed:- “I very much disapprove of working the Cannel Mine in advance of the Black Mine, as I am confident it would injure the Black Mine. When the Cannel Mine is worked first, and the subsidence of the whole strata takes place, the shale lying next to the Black Minecoal being of a tender nature breaks up into small particles and mixes with the crushed coal, which augments the cost of working and depreciates the coal value. I think the proper way of working these two mines is the working of the Black Mine in advance of the Cannel Mine, and that, I am confident, would be the most judicious way of dealing with the matter, and would most assuredly conduce to the benefit both of the lessors and lessees.”

William Blackburne, mining engineer, deposed thus:- “The Cannel Mine ought not to be gotten in advance of the Black Mine, and it is contrary to the usual mining custom in this district to work the lower seams before the upper beds of coal have been removed unless it is intended to allow the Black Mine to remain ungotten for a period of not less than two or three years after getting the Cannel Mine. I say the quantity of house fire coal produced in this Black Mine will be decreased, and the levels and airways in the same mine damaged.”

Robert Winstanley, mining engineer, deposed as follows:- “The usual practice and best mode of working mines of coal is to work the higher seams in advance of the lower, especially in the district in which the Astley deep pit is situate.”

COUNSEL:
Mr. Fry, Q.C., and Mr. Batten, for the Plaintiff:-

The Plaintiff in this case is entitled to a mandatory injunction to restrain the Defendants from interfering with the fulfilment of this engagement.

The Court has in various cases exercised a similar jurisdiction: Lane v. Newdigate n(1) ; Storer v. Great Western Railway Company n(2) ; Duke of Beaufort v. Morris n(3) (where an order of Lord Eldon’s in Morris v. Smith is referred to); Wilson v. Furness Railway Company n(4) . In this case, even if specific performance of the covenant could not be enforced, we submit that the Plaintiffs are entitled to an injunction.

By the terms of the covenant in the lease they are bound to work and carry on the mines with the utmost care and ability, and in the best and most effectual manner, to the best advantage, and according to the common mode and usual practice of carrying on all coal works and collieries with effect. There is no separate demise of each vein; they are demised as an entirety, and therefore the covenant obliges the Defendants to work the several veins as a whole, and not to work one vein separately to the injury of another. One vein or mine cannot, according to this covenant, be worked before another, so as to leave another unworked or ungotten, and if a vein is once begun to be worked the works must be continued.

The evidence adduced on behalf of the Plaintiffs is conclusive as to the custom of the country, shewing that the proper course of mining in that part of the country where the seams are not separated by a very great interval, is to work the same together, or to work the upper seam in advance of the seam which is next below it, and not to work the lower seam in advance of the upper seam. The Defendants’ evidence, including the report of the mining engineers, Messrs. Higson and Cross, cannot be relied on.

n(1) 10 Ves. 192.

n(2) 2 Y. & C. Ch. 48.

n(3) 6 Hare, 340, 342.

n(4) Law Rep. 9 Eq. 28.

According to the evidence it is contrary to the practice of this district for the Defendants to work the Black Mine and the Cannel Mine without working the Town Lane Mine; The pretext that the mode of working adopted by the Defendants was necessary for the safety of the mine cannot be established. They have no right to remove the machinery for working the Town Lane Mine, or to allow the roads or airways in the Town Lane Mine to remain choked up.

On the whole case, we submit that the Plaintiffs have established a good ground for the interference of the Court.

Sir R. Baggallay, Q.C., and Mr. Hemming, for the Defendants, were not called on.

PANEL: SIR G. JESSEL, M.R

JUDGMENTBY-1: SIR G. JESSEL, M.R

JUDGMENT-1:
SIR G. JESSEL, M.R: :-

The case has been very elaborately argued. I look on this bill as a mere experiment by an experienced equity draftsman, who was perfectly aware from the first that the kind of agreement in this lease as to working the mines was not the sort of agreement of which the Court, according to the limits imposed by the authorities on its jurisdiction, could give specific performance; and, being well aware of that, he exercised his ingenuity to see if he could not, by means of an injunction, obtain what in reality was equivalent to specific performance. I repeat the bill does very considerable credit to Mr. Batten (if he will allow me to say so), and to his ingenuity. But unfortunately it fails in substance the moment you admit you cannot get specific performance, as you must here.

By a lease granted in November, 1856, Mr. Astley demised certain mines, together with a pit and dep t, in words which are not immaterial; they were as follows:- “All such parts and portions, or so much and such parts of all those several mines, delphs, veins, and beds of coal and cannel lying and being under the lands and grounds of F. Astley and G. J. Newton, or either of them as were not then leased, and called the Black Mine, the Town Lane Mine, and the Peacock Mine, with certain exceptions therein mentioned.” The word “mine” is clearly there used in its primary sense of “vein,” and each mine is named separately.

Then there is a demise of the pit called “Astley’s New Pit,” and

also, by way of demise and not of exception, with its steam engines, engine-houses, workshops, and other buildings.

[His Honour then referred to other provisions of the lease before the covenant as to working the mines, observing that, if the lease stopped there, the lessees would have the power, but not an obligation cast upon them, to work any of the demised mines, or none of them if they thought fit. He then referred to a covenant to sink the Astley pit to the depth of 300 yards lower than its depth at the time of the lease, and then read the covenant upon which the decision in the case mainly turned.]

The first question which I have to decide is, What does this covenant mean? At the outset we find the Plaintiffs coming into this Court to ask the Court to give effect to a covenant, and being compelled to say it cannot mean what it says. The literal meaning is as absurd as possible, and therefore I must try to find a secondary meaning.

If ever there was a case for an injunction, as distinct from the remedy at law, I suppose it must be founded on a clear contract between the parties, and certainly the Plaintiffs, who come here with such an admission as this, have not a very clear contract. Let us see if the Plaintiffs can have the benefit of the literal construction. In the first place, are the lessees to work all the mines at all times during their term? That is impossible, for these reasons: first, they could not work the Town Lane Minewhile they were sinking the other. The pit was wanted for the purpose of being used for the workmen who were going further down, and for a very considerable time that must be so. In the next place, it is impossible to work the other mines until you get at them, and the very lease, on the face of it, shews you cannot get at them without sinking a pit, and though all parties must have known that with a pit of this size it was impossible to work all these mines, they do not seem to take that into account, but insist on the working of the Town Lane Mine.

For these reasons it is manifestly impossible to adopt the literal reading. But there is another reading, and that is this, that the covenant to work the mines at all times in an effectual manner would compel the lessees to work, although they found faults which might render it excessively expensive to work, and which it

is very unusual to call upon a lessee to work through; and it would also compel them to work a vein at a loss, although that would be to work all the mines at a loss. And this would be particularly so if they were compelled to work the upper vein and Peacock’s mine; they might also be obliged to work other seams which are quite unworkable at a profit. But it does not stop there, because that would compel them to go on working after the coal had deteriorated in value, and could not be sent to market at a profit. It would be a most unreasonable and absurd covenant. I am not surprised, looking at it that way, that the counsel for the Plaintiffs felt themselves compelled to abandon the literal reading. Then they had to suggest some other reading, and what they suggested was this, that if you begin to work a vein you must continue to work it; but I must say I cannot find in the covenant any arrangement of that sort, and if that were so, I do not know what it would lead to. It is mere conjecture. But, independently of the several reasons I have mentioned, others would apply to that reading as well; for instance, the Town Lane Mine was not at work, but for the reasons I have mentioned it could not continue working during the sinking of the pit; and therefore the covenant could not be held to apply to that; and it appears to me that I am not at liberty to use this covenant as a covenant for continuous working at all, though it might apply to this, that when you do work you shall work in the right way.

But suppose this difficulty removed, the Plaintiffs ask for an injunction on this point to restrain the working of the other colliery, while the one which the Defendants have begun to work remains unworked. It appears to me that that has no connection whatever with the covenant. There is no covenant not to work any unless you work all, which is what the Plaintiffs want. The only covenant they have is, to work all, but the right to work any is under the demise. The lessees have a right, under the previous words, to work any of the mines. You must find a restrictive covenant to cut down the legal effect of the demise, and there is none.

A demise of twenty houses, with a covenant to keep all of them in repair, does not prevent the lessee repairing all but one; it adds, no doubt, an additional obligation on him; but could the lessor

apply to the Court to restrain him from repairing nineteen of them until he repaired the twentieth? Is there any difference between that case and this?

It was said when I put this in argument, that there was a connection between the mines here, there being a common pit. But in the case of a single house, with a common staircase and series of flats, and a covenant to repair, could you say that because the tenant was repairing the roof and not the ground floor, that you could apply to the Court of Chancery for an injunction against him for not repairing the roof until he had repaired the ground floor? It is the same thing here. This is not an affirmative covenant which includes a negative. There is a judgment of Lord Hatherley, when Vice-Chancellor, in the well-known case of Pollard v. Clayton n(1) , which bears on this point.

Whilst I am upon this covenant I may mention something about another point. It was said that there was a vein called the Cannel Mine, which ought not to be worked in advance of the Black Mine. But when you come to look at it, in reality, the complaint is, not that you work the Cannel Mine in advance, but that you do not work the Black Mine fast enough. What is said in effect is, that if the Defendants had worked the Black Mine as fast as the Cannel Mine the Plaintiffs would have been content; but of course they cannot get specific performance of that. They therefore ask to stop the Defendants from working the Cannel Mine till the Black Mine is worked up to it. Not being able to compel the working, they seek by the form of an injunction to stop the working of another mine – the Cannel – which the Defendants have a perfect right to work.

It appears to me, looking at the covenants, that I cannot grant the injunction which the Plaintiffs ask. I might well stop there, but I do not think it would be quite satisfactory, because a great deal of evidence has been gone into as to the facts, and it is necessary I should advert to this in order to make the case intelligible. The first complaint, as I have said before, is, that the Town Lane Mine has been shut up. Now, if I am right in what I have said, the Plaintiffs cannot get any injunction to compel the Defendants to shut up the Cannel Mine till the other is worked.

n(1) 1 K. & J. 462.

But there is another ground alleged by the Defendants, which is admitted by the Plaintiffs to be an insuperable difficulty if it is true in fact. The Defendants say it is impossible, with a pit of the present size, having regard to the requirements now made by the Legislature with regard to the safety of the workmen in deep mines, to work the Town Lane Mine because there would not be sufficient ventilation. If that is so, even the Plaintiffs admit the Court ought not to interfere by injunction.

In March, 1870, there was a frightful explosion in this mine, and many men were killed. The Government Inspector interfered, and he said in effect: “Your pit is not large enough; the upcast shaft through the Town Lane Mine is not large enough to work the Town Lane Mine, and to ventilate the other; upon considering the whole matter, I am of opinion the best thing to be done is to shut up the Town Lane Mine, and go on with the other veins.”

This seems to have been rather unpalatable advice to the Defendants, and they did not immediately act on it, but they called in two other engineers – Mr. Higson and Mr. Cross – to advise what was best to be done; and in September, 1870, Messrs. Higsonand Cross made a report, which report puts it very strongly in the same way as did the Government Inspector. [His Honour then read the report.]

It is suggested by the Plaintiffs that this evidence is not to be depended on, and that their witnesses’ evidence is. If the Defendants’ evidence is the correct version, the effect of an injunction would be to shut up all the mines, and leave the Defendants subject to a dead rent.

Now I will consider the evidence on this point, but before doing so, I must say how the Plaintiffs contest it. They contest it by producing the evidence of some experts, whose evidence was met by at least as many experts on the part of the Defendants. As to this, I may say what I think I have often said before, that in matters of opinion I very much distrust expert evidence, for several reasons. In the first place, although the evidence is given upon oath, in point of fact the person knows he cannot be indicted for perjury, because it is only evidence as to a matter of opinion. So that you have not the authority of legal sanction. A dishonest man, knowing he could not be punished, might be inclined to

indulge in extravagant assertions on an occasion that required it. But that is not all. Expert evidence of this kind is evidence of persons who sometimes live by their business, but in all cases are remunerated for their evidence. An expert is not like an ordinary witness, who hopes to get his expenses, but he is employed and paid in the sense of gain, being employed by the person who calls him.

Now it is natural that his mind, however honest he may be, should be biassed in favour of the person employing him, and accordingly we do find such bias. I have known the same thing apply to other professional men, and have warned young counsel against that bias in advising on an ordinary case. Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them.

Accordingly, we find in doubtful cases the most remarkable results. Take this case: there are two questions; one, whether sufficient ventilation exists for three mines; the other, whether the Cannel Mine ought or not to be worked in advance of the Black Mine. Well, we have the witnesses giving evidence for the Plaintiffs’ view of the matter, or the Defendants’ view, according as they are sought out and paid by each. It is very natural, and just what one would expect, but it leads one to distrust their evidence. There is also this to be said against them, namely, that their evidence is not the evidence of fair professional opinion. The men are selected according as their opinion is known to incline.

Suppose a person wants to sell a house, and as he wants a very high value put upon it, he sends to ten valuers, and out of these he selects the three who have put the highest value on the house. The purchaser wants a very low value, and selects out of a number of valuers three of the lowest. Each set of valuers values high or low, according to the requirements of the person who employs them. I have known the same sort of thing done even as regards medical evidence. The consequence is, you do not get fair professional opinion, but an exceptional opinion by evidence selected in this way.

That being so, when I have expert evidence I am, as I said before, very distrustful … priori; and I am anxious to ascertain the character of the experts, and to see the position they occupy.

In this case I have this circumstance, that of the five experts for the Plaintiffs, four are ordinary experts, the fifth is an agent for the Plaintiffs and in their regular employment, and that being more continuous, his bias would be rather greater. When I look to the Defendants’ witnesses, three of them are of a very different character. The first, Wynne, is not in the ordinary sense an expert witness at all. He is the Government Inspector of Mines, and was not paid for this purpose. The advice he gave was given in the course of his employment as Government Inspector, and with a view to the safety of the mine. It was given before there was any dispute. The advice he gave was given long ago, and it was advice upon which the Defendants were not willing in the first instance to act. As regards Higson and Cross, although not of such good position as Wynne in these respects, they are in a better position than ordinary experts. They were called in to advise the Defendants before any contest arose. Their opinion was given in the shape of a formal report, and not with a view to the success of the suit. They are parties interested, in the sense of acting for the Defendants, to assist them in giving bona fide advice for the more advantageous conduct of the mine, but not to assist them in the litigation. Therefore I look upon their evidence as much better and more to be depended on than ordinary expert evidence.

If, therefore, the witnesses were all equally positive, I certainly should prefer the evidence of the Defendants; but when I come to examine the Plaintiffs’ evidence, I find the evidence is not nearly so positive as that of the Defendants. As regards this matter of the ventilation, the majority of the witnesses say there would be sufficient air if the passages in the lower mines, especially the Black Mine, were constructed on a larger scale.

On the whole, I am satisfied, on the balance of testimony, that the Defendants are right on this point, and that it would be dangerous to continue the working of the Town Lane Mine, together with the Black Mine and the Cannel Mine. Therefore I ought not to interfere by injunction, and on this point the Plaintiffs’ case fails.

The next point taken was that the Plaintiffs were entitled to an injunction to prevent the Town Lane Mine “remaining choked up, or otherwise than open and in proper working order.”

Now the jurisdiction of this Court does not extend to the performance of covenants to repair. It is clear I cannot grant an injunction that the Defendants shall not be at liberty to work the other mine till they put the Town Lane Mine in repair.

The other part of the case that was seriously fought was this: It appears that about some fifty yards below the Black Mine there is a vein of coal of about 2 ft. 3 in. in thickness, which is a very profitable mine to work at the present time, and the Defendants are working it (as it is termed) in advance of the Black Mine. One of the witnesses says they took 11,000 tons a week out of the Cannel Mine, and only 600 tons out of the Black Mine, so that it would appear that the Cannel coal is worked more rapidly than the Black Mine coal, and that the Cannel Mine has been almost exhausted, whilst the Black Mine is very little worked; and the allegation is, that this is contrary to good mining. An admission was made that it was not contrary to good mining to work a coal mine as they are working the Cannel, provided they did not work the Black Mine at all – but that concedes the whole case, if I am right in the construction I put upon the covenants, that if they are entitled to work the Cannel Mine alone, they are not the less entitled to work it because they work the Black Mine. If they work it without working the Black Mine, they may equally work it if they do work the Black Mine.

But it is said, if you work the Black Mine at the same time as the Cannel Mine, the roads and passages of the Black Mine will be injured by reason of the taking away of this additional quantity of material, which will cause a subsidence and injury to the roads.

That may be so, but still that does not give a right to injunction.

The injury done is an injury done to the working of the Black Mine. Either you are working the Black Mine properly, or you are not; but whether so or not, for that is the point, the Plaintiffs admit if you work the Black Mine fast enough no injury will happen; or rather their complaint is that the Black Mine is worked improperly by not being worked away fast enough.

Suppose it was a negative instead of an affirmative injunction that was asked. You could not ask for an injunction to restrain them from working the Cannel Mine, and on that ground the Plaintiffs must fail. As regards the Black Mine, you cannot have an injunction for not working fast enough. There is no form of injunction applicable to it, and therefore the remedy by injunction is simply out of the question.

But passing from that, let us just look a little at the fact. Now the fact in dispute, and the issue to be decided, is this: whether working the two mines or seams together, but working the lower mine in advance, is in accordance with the common mode and usual practice of carrying on coal works or collieries with effect, which refers of course to that district; because, with regard to usual practice, we know that it varies very much with the nature of the mine and the nature of the fuel which is extracted; the practice of one district has little or no application to the practice of another. Now on this there has been a great deal of evidence, and I must say that the evidence is overwhelming in favour of the Defendants, and that is evidence not merely of opinion but of fact. [His Honour then reviewed the evidence of the Plaintiffs’ witnesses and the evidence of the Defendants’ witnesses, and said that while the one set of witnesses were vague and unsatisfactory, the other gave conclusive evidence, founded on specific facts, in favour of the Defendants’ mode of working the mines, and continued:-]

The result is, that it is proved that the mode of working adopted by the Defendants (whether the best possible mode I do not say) is the common mode and usual practice, and consequently there is no ground for accusing them of a breach of contract, or of doing anything which entitles the Plaintiffs to come to this Court for an injunction.

The bill must be dismissed with costs.

SOLICITORS:
Solicitor for the Plaintiff: Mr. E. H. Barlee, agent for Messrs. Buckley & Son, Ashton-under-Lyne.

Solicitors for the Defendants: Messrs. Phelps & Sidgwick, agents for Messrs. Sale, Shipman, & Co., Manchester.

(c)2001 The Incorporated Council of Law Reporting for England & Wales

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