Land – Mines and minerals – Trespass – Respondent seeking to extract stone from beneath surface of estate land – Appellant trustees seeking damages for trespass and declaration of rights – High Court dismissing claim – Appellants appealing – Whether appellants retaining corporeal title to mines and minerals below surface – Appeal dismissed
The appellants, as trustees of the Williams-Wynn 1987 Settlement, claimed to own everything below the surface of land in rural northern Wales, in Powys (formerly Montgomeryshire). The respondent 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 respondent, on behalf of the National Assembly for Wales, as statutory successor to the Forestry Commission.
The appellants argued that most of the land formed part of the “wastes and commons” of the Manors of Arwystli or Cyfeiliog which had been owned by or on behalf of members of the Williams-Wynn family. They 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 Inclosure Act 1816.
The respondent approached the appellants in September 2016 wishing to acquire some mudstone by licence, having previously extracted stone from the property. The appellants said that they would agree only if they were compensated for stone taken in the past. The respondent refused and now maintained that the appellants had no rights to the mudstone and, if they ever did, those rights had long been barred by adverse possession. The appellants sought a declaration of their rights and damages for trespass.
The High Court dismissed the claim concluding that mudstone was not a mineral for the purposes of the mineral reservations relied on by the appellants; and, in any event, the respondent had established title to it by adverse possession: [2020] EWHC 1924 (Ch); [2020] PLSCS 148. The appellants appealed.
Held: The appeal was dismissed.
(1) The word “minerals” in a reservation out of a grant of land meant substances exceptional in use, in value and in character and did not mean the ordinary soil of the district which, if reserved, would practically swallow up the grant. In deciding whether or not in a particular case exceptional substances were “minerals”, the true test was what that word meant in the vernacular of the mining world, the commercial world and landowners at the time of the grant, and whether the particular substance was so regarded as a mineral. It would be a negation of the substance of the transaction to hold that all sand and gravel, which was very generally a part of the soil and subsoil, was excepted from the grant. It would not be a reservation of what was exceptional, but of what was general and of general importance to the utility and efficiency of the land conveyed: North British Railway Co v Budhill Coal and Sandstone Co [1910] AC 116, Caledonian Railway Co v Glenboig Union Fireclay Co [1911] AC 290, Waring v Foden [1932] 1 Ch 276 and Earl of Lonsdale v Attorney-General [1982] 1 WLR 887 followed.
(2) The forty titles in dispute were divided into four categories. This appeal concerned three of those categories: A: conveyances by the trustees’ predecessors in title with an express exception and reservation; D: awards under the Inclosure Act 1816; and C: contractual enclosure agreements.
As regards the exception in category A which stated: “EXCEPTING AND RESERVING … (a) All mines beds and quarries of coal and ironstone and all other metals stone and minerals within and under the hereditaments and premises thereby conveyed”, the court rejected the appellants’ argument that mudstone was undeniably a form of stone and so had to be included in the reservation.
It would be surprising if the word “stone” were to stand out, as if stranded on an island of literal interpretation, surrounded as it was by words of such notoriously indeterminate meaning as “mines” and “minerals”. The word “minerals” tended to include stone, as a matter of natural language. Such words were capable of excluding the prevailing stone of the district and, in this case, the language of the exception, construed in its context, did exclude the unexceptional, “commercially valueless” mudstone.
Accordingly, the judge was correct to conclude that the reservation of “all other… stone and minerals” or equivalent words in them did not include mudstone.
(3) The exception in the 1816 Act expressly extended to “any Mines, Ores, Coals, Metals or Minerals whatsoever” in or under the former waste of the Manor. Every Inclosure Act had to be construed on its own terms. The judge’s basic conclusion was correct that, properly construed, the reservations of mines and minerals in the 1816 Act did not include mudstone. The critical point was that the reservation of mines and minerals in the 1816 Act was not apt to include mudstone, both because of its ubiquity and because of its lack of commercial value.
(4) From the 1850s onwards, a series of private enclosure agreements were entered into between the lord of the relevant manor and individual landowners. The agreements contained an express saving and reservation to the lord and his successors in title of: “all mines, minerals, stone and other substrata, lying within or under the said pieces or parcels of land or … any part thereof …”. Since the agreements took effect as contractual licences, they did not sever or affect the lord’s title. The root of the respondent’s own title was adverse possession by its predecessors in title against the appellants’ predecessors.
A title acquired by adverse possession was a fresh title. The dispossessed owner’s title was not transferred. Rather, it was extinguished. The reality, at least by 1970 and in most cases well before that, was that the respondent’s predecessors were claiming to be, and acting as, sole owners of an undifferentiated title. Provided the requirements for adverse possession were satisfied, the fresh title prevailed and it was no longer relevant to enquire into the history of the dispossessed paper owner’s title. It was well established that where a paper title was extinguished by adverse possession of the surface, the adverse possession extended to minerals beneath the surface (unless they had been reserved by an earlier conveyance independently binding on the adverse possessor): Seddon v Smith (1877) 36 LT 168 followed.
Fenner Moeran QC and Oliver Radley-Gardner QC (instructed by Forsters LLP) appeared for the appellants; Mark Wonnacott QC and Harriet Holmes (instructed by Hugh James Solicitors, of Cardiff) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Wynne-Finch and others v Natural Resources for Wales
