Sale of land – Conveyance – Exception and reservation of minerals – Landowner selling land excepting and reserving mineral rights to successors in title – Appellant successors in title seeking declarations as to entitlement to minerals – Whether substances in issue constituting minerals within exception – Appeal dismissed
In 1921, a landowner sold a 196-acre farm (the disposition site). The conveyance was subject to an exception and reservation clause which excepted and reserved to “the vendor her heirs and assigns the mines beds and seams of coal and ironstone and other metals and minerals within and under” the land conveyed.
The appellants were the successors in title to the landowner. They claimed to be entitled to the ironstone, fireclay, brick shale and clay at the site and to the airspace created by the extraction of those materials. The respondent company was the registered proprietor of land that comprised part of the disposition site (the disputed site), which was used to stock brick shale. Although the appellants did not intend to extract the substances in question, the site had potential value as a landfill site and their rights would have, if they could establish them, a ransom value.
Much of the disposition site and the land upon which the respondent operated lay above carboniferous strata that comprised upper coal measures. The substances at issue, and which fell within the disputed site, formed part of the upper coal measure.
The question for the court on a number of preliminary issues was whether brick shale and fireclay came within the expression “other minerals” in the exception and reservation. The High Court decide that they did not fall within the reservation. The appellants appealed.
Held: The appeal was dismissed.
Three factors were significant in construing a statutory or contractual reference to minerals. First, unless the meaning was clear on the face of the legislation or the instrument, the duty of the court in construing a grant of mines and minerals was to try to ascertain what the phrase meant in the vernacular of the mining world, the commercial world and landowners at the time of the grant. The second consideration was whether the substance in question was exceptional in use, value and character and not the ordinary soil of the district, which, if reserved, would almost swallow up the grant. The third factor was whether any express powers of working or limitations thereon could shed light on whether the substance in question was intended to be included in the reservation: Waring v Foden [1932] 1 Ch 276 and Earl of Lonsdale v Attorney-General [1982] 1 WLR 887 applied.
The test of exceptionality, as restated in Waring and Lonsdale, derived from earlier cases that did not endeavour to define exceptionality or state what the comparator was meant to be. In that context, “exceptional” merely seemed to mean something special. The judgment in Waring was not a statutory code. The court in that case had applied the principles in cases on compulsory acquisition to a consensual arrangement in order to give guidance on what the parties must have intended. Applied to the present case, the fact that a not especially valuable or exceptional substance was ubiquitous in the area was a pointer to brick shale not being regarded as a mineral. The judge had been right to conclude that the nature of the substance was not a pointer to its inclusion in the expression mineral. The surrounding circumstances supported the judge’s conclusion that the underground working restriction was a strong indicator that brick shale was not a mineral for the purposes of the 1921 conveyance: Caledonian Railway Co v Glenboig Union Fireclay Co [1911] AC 90; Great Western Railway Co v Carpalla United China Clay Co Ltd (No 1) [1909] 1 Ch 218; and North British Railway Co v Budhill Coal & Sandstone Co [1910] AC 116 considered.
Furthermore, the judge had had the benefit of the evidence of two experts concerning the vernacular meaning of fireclay in 1921 and preferred that of the respondent. There was no basis for interfering with his conclusion.
John McGee QC (instructed by KJD Solicitors, of Stoke on Trent) appeared for the appellants; Jonathan Gaunt QC and Barry Denyer-Green (instructed by Freeth Cartwright LLP, of Derby) appeared for the respondent.
Eileen O’Grady, barrister
