Land – Mines and minerals – Trespass – Defendant seeking to extract stone from beneath surface of estate land – Claimant trustees seeking damages for trespass and declaration of rights – Whether claimants retaining corporeal title to mines and minerals below surface – Claim allowed in part
The claimants, as trustees of the Williams-Wynn 1987 Settlement, claimed to own everything below the surface of land in rural northern Wales, in the former county of Montgomeryshire, now part of Powys. The defendant was a public body formed in 2012 to fulfil the Welsh devolved functions of the Environment Agency and the Forestry Commission. Forty freehold titles were managed by the defendant, on behalf of the National Assembly for Wales, as statutory successor to the Forestry Commission, and used for forestry purposes.
The claimants’ case was that the property was formerly rough open pasture and formed part of the Manor of Arwystli or the Manor of Cyfeiliog which had been owned by or on behalf of members of the Williams-Wynn family. Most of the land formed part of the “wastes and commons” of the relevant manor. The claimants said that the surface land had been disposed of but what was beneath it, including all mudstone under the surface, was retained as a result, in particular, of exceptions made on sales in 1919 and awards pursuant to enclosures under the private Enclosure Act 1816.
The defendant approached the claimants in September 2016 enquiring whether it could acquire some stone by licence. That resulted in the claimants becoming aware that the defendant had previously extracted stone from the property. The claimants said that they would agree terms for future use of stone only if they were compensated for stone that had been taken in the past. The defendant refused and now maintained that the claimants had no rights to the stone, or that, if they ever did, those rights had long been barred by adverse possession. The claimants sought a declaration of their rights and damages for trespass.
Held: The claim was allowed in part.
(1) The court did not accept the accuracy of mapping exercises undertaken by land agents acting on behalf of the estate. Where there was doubt, the precise relationship between the area claimed and the boundaries of the defendant’s title would be a matter of opinion on which mapping expertise would assist the court. In the absence of that, and of evidence from those who actually did the mapping work, the court was not able to test the evidence to understand the methods and approach used.
(2) The court had no doubt that mudstone would not have been viewed as a material that was worthwhile quarrying and selling commercially in 1816 or 1919. Its value in infrastructure and construction was a means to an end, whether in allowing slate or lead to be extracted and removed, or for agricultural or forestry purposes. The claimants’ claim to the ownership of everything under the topsoil made no practical sense, particularly in the area in question and given the shallowness of the topsoil. It would be impossible to erect or extend any form of permanent farm or other building, or even put in fencing, without trespassing on the claimants’ property. In the context of the locality, none of the mineral world, commercial world or landowners would have had in mind mudstone at the time of the conveyances. They would clearly have had in mind lead and slate, together with other metalliferous minerals that might be found in the area, such as zinc. The known presence of those minerals in the area both provided a good reason to include a minerals reservation, and provided context to assist in understanding the sorts of material that it would have been intended to cover.
(3) The surface owner had also extinguished the trustees’ title to the mudstone by adverse possession. Adverse possession of land where there had been no severance of title between the surface and substrata was against the whole of the dispossessed owner’s title, not just part of it. The defendant (or strictly the National Assembly for Wales) was the registered title holder, so a title based on adverse possession had clearly been established to the satisfaction of the Land Registry. The claimants’ predecessors had therefore been deprived of their title. Further, acts on one part of an area owned by a single paper title owner might be treated as evidencing possession of the whole area provided that there was such a common character of locality as would raise a reasonable inference that if a person were possessed of one part of it as owner, he would so possess the whole of it. There had to be clear and affirmative evidence that the trespasser not only had the requisite intention to possess, but made such intention clear to the world. There had to be both a subjective intention and an objective manifestation of it: Roberts v Swangrove Estates Ltd [2007] 2 P&CR 17; [2007] PLSCS 56 applied.
(4) The defendant had established factual possession, with the necessary intention to possess, of at least a sufficient depth of mudstone over the area claimed to allow any activity that was consistent with forestry operations. The trespasses were not simply temporary: the actions taken by the defendant and its predecessors had changed the subsoil and bedrock in an enduring way. The defendant had also been dealing with the land in that way, and as an occupying owner would, for well over the 12 years required to establish title by adverse possession. No-one else had been dealing with it. The activity undertaken was intended to exclude others. The defendant was manifesting an intention to possess the whole of the relevant forested area, including mudstone that might be disturbed in the course of its forestry activities.
(5) Subject to the mapping issues, the claimants had retained a corporeal title to minerals in: conveyances by the claimants’ predecessors in title with an express exception and reservation; an 1864 Crown grant to the claimants’ predecessor to resolve a boundary dispute; and awards under the 1816 Enclosure Act. However, in none of those categories did the claimants’ title extend to ownership of mudstone, including interbedded sandstone and shales of the kind found on the defendant’s land. Specifically in relation to sandstone, the claimants’ title did not extend to interbedded sandstone of the kind disturbed or extracted from the defendant’s titles to date. The defendant was not liable in damages for trespass or conversion in respect of any of the activities pleaded.
Fenner Moeran QC and Paul Stafford (instructed by Forsters LLP) appeared for the claimants; Mark Wonnacott QC and Harriet Holmes (instructed by Hugh James) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Wynne-Finch and others v Natural Resources for Wales
