COMPENSATION FOR MINERAL DAMAGE (SCOTLAND). (Hansard, 7 April 1914)

§ Mr. DUNCAN MILLAR

I beg to move "That leave be given to introduce a Bill to amend the law relating to feus and leases for building in Scotland and to secure compensation for injury caused by mineral workings."

4.0 P.M.

The object of this Bill is to amend in one particular the law relating to feus and building leases in Scotland, so as to secure payment of compensation to feuars and lessees for damage caused to their buildings by subsidence of the ground due to mineral workings. I think I may fairly claim that the Bill possesses certain special features which entitle it to the favourable consideration of the House. In the first place, it deals with a serious and admitted hardship inflicted upon feuars and householders in mining districts, mostly men of small means, and also upon the owners of large works and upon public bodies who are under the necessity of acquiring building sites for their buildings. In the second place, it embodies the recommendations of the Select Committee on Feus and Building Leases (Scotland), which reported in 1894. I might remind the House that upon that Committee there were members representative of the different sections of opinion in this House including several distinguished Scottish lawyers. The Chairman was the late Lord Kinross, and Sir Charles Pearson, afterwards Lord Pearson, also acted as a member of the 1823 Committee. In the third place, the provisions of the Bill are extremely brief and simple, and they do not place any obstacle in the way of the development of the mining industry or unfairly penalise the proprietors of minerals or land. I think that the grievance can be best and shortly stated by referring to the Report of the Select Committee:— The grievance felt in the Motherwell and Hamilton districts and other places, is that in consequence of all the available building land being in the hands of a small number of proprietors, persons whose businesses compel them to live and work there, are obliged to take feus on such terms as the proprietors may dictate. They complain that they should, by the terms of their feu grants, be bound not only to erect but to maintain buildings upon the surface, and yet that they should be obliged to submit to these buildings being seriously injured, and possibly destroyed, without their receiving any compensation, and further that, although this injury or destruction might occur time after time, they would, by the terms of their feu grants, be bound as often to re-erect the buildings. It appears to the Committee —and this is one of the findings of the Committee— to be established that the grievance is serious, operating hardly upon individuals as well as public bodies, and likely to create a feeling of dissatisfaction with the law which permits such things. In a word, the situation is just this: Land in feued, or let for building purposes, and liberty is reserved to the superior to undermine and destroy the very buildings for which the land is let without payment of any compensation. I think that I can best illustrate this to the House by referring to the clause in a typical feu contract, namely, the feu contract on the Duke of Hamilton's estate in Lanarkshire, from which the House will see the extraordinary position in which the feuars find themselves. There is a reservation in all such feu contracts of the minerals to the superior, and then there is this power inserted:— With power to the superiors and their tacksmen or others in their name to work, win and carry away the reserved minerals, and to do everything necessary for working, winning and carrying away the same (including power to lower the surface of the said ground), and, in the event of any damage being caused to the ground hereby feud, or to the buildings erected or to be erected thereon, or to the water with which the same may be supplied, or to the drainage thereof, or in any manner of way by or through the past or future workings of the reserved minerals under or near the ground hereby feud, no claim for damage or recompense shall on such account lie or be competent to the said disponees against the superiors or their tacksmen or other persons deriving right from them. 4.0. P.M.

Then follows a clause in the same feu contract binding the feuar to erect and maintain in all time coming, buildings sufficient to secure the Feu Duty. I draw the attention of the House to these provisions in favour of the landlord. He is entitled to lower the surface of the ground, while the feuar 1824 is bound to maintain and erect in all time coming buildings sufficient to maintain the Feu Duty. It is only right to say that a number of learned judges have commented very unfavourably on this state of affairs, and I propose to quote to the House two or three sentences from the judgment of Lord Neaves, in the case of "Andrew versus Henderson"—a Coatbridge case heard in the year 1871. This was a case in which the decision of the majority of the judges was reversed by the House of Lords, but the dicta which I am about to quote set forth quite clearly the true view of the situation. Lord Neaves said:— A town has thus been called into being, and Colonel Buchanan and his predecessors have derived from it both importance and pecuniary profit. He takes his feuars bound to build houses, and he lays down streets to be traversed by all the inhabitants, but it is said that by the force of certain clauses as to the mineral estate, he is liable to destroy those uses of the surface, which he has not only permitted but compelled….. Now here the proprietor says, 'I bind you to build, and reserve to myself right to undermine, and you must rebuild and I may again undermine, and so on, as often as I please to undermine, and you must pay the Feu Duties notwithstanding.' I cannot imagine such a contract. It is perfectly true that other judges have taken the view that the law is that one must stand on the terms of the contract itself. It is suggested that there is freedom of contract, but, according to the finding of the Select Committee, that is not the case in a district where, owing to a monopoly of land, it is made quite impossible for parties coming in to get land under conditions absolutely fair to them. It has also been suggested that the Feu Duty is smaller in amount under these conditions, but that is not so in Lanarkshire, where the Feu Duty is even larger in districts where there are mineral workings than in other districts. The damage which is done is of a very serious character. In the town of Motherwell, in my own Constituency, with a population of over 40,000, there have been many streets undermined and whole streets have had to be rebuilt. Many individual feuars have suffered serious loss and damage, and many owners of large works have had injury done to their works by this undermining. There is a great need for some remedy being applied. The remedy of the Bill is a simple one. The proposal is that such conditions in the future should be null and void, unless accompanied by full compensation for the damage done. In a wealthy industry like the mining industry there is, I submit, plenty of money available in the hands of the mine-owners to provide such reasonable compensation. Individual superiors in certain districts have acknow- 1825 ledged the grievance and have sought to meet the difficulty. But that is not the general case. This Bill has been introduced for many years by Members who have represented the North-Eastern Division of Lanarkshire. If we had had a Scottish Parliament we should have got the Bill through before this, for I am quite sure that, without distinction of party, Members sitting in a Scottish Parliament is bound to maintain and erect in all time would have supported such a measure and have carried it into law. I trust that the House will grant permission for the introduction of this Bill, and that some progress may be made with it, in order that the grievance may be dealt with.