Summary

Brickshale and fireclay, in the wider sense of any brick making clay which had economic potential, were not within the expression "other... minerals" in an exception and reservation of minerals in a 1921 conveyance.

Facts

The appellants (C) appealed against a decision that brickshale and what was described as fireclay in the wider sense were not within the expression "other... minerals" in an exception and reservation of minerals in a 1921 conveyance. The respondent (B) was the registered proprietor of land part of which had been acquired from C's predecessor in title under a conveyance which contained an exception and reservation for "ironstone and other metals and minerals" within and under the land together with rights to get and carry away the same by underground workings only. The land subject to the reservation had potential value as a landfill site and C's rights had a ransom value if they could establish them. C claimed that they were entitled to the ironstone, fireclay, brickshale and clay at the site, and the airspace created by the extraction of those materials. B disputed that the substances in issue were "minerals" according to vernacular usage at the time of the reservation and contended that if the reservation had been intended to cover the substances in issue it would have made provision for powers of abstraction by surface methods. The judge, considering the vernacular meaning of minerals at the relevant time and the powers of working, held that brickshale and fireclay in the wider sense of all brick making clays which had economic potential were not "other... minerals" within the reservation. C submitted that the judge had erred (1) in his application of the test of exceptionality from Waring v Foden (1932) 1 Ch 276 CA in relation to brickshale; (2) in rejecting their contention that the fact that the power of working was limited to underground methods was in fact neutral and not a pointer against them; (3) in finding that fireclay in the wider sense was not in vernacular usage a mineral in 1921.

Held

The test as stated in Waring v Foden was that the word "minerals" when found 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. That test, as re-stated in Earl of Lonsdale v Attorney General (1982) 1 WLR 887 Ch D, was not to be construed as if it were a statute and had to be understood in the light of previous cases many of which were concerned with the balance between the rights of landowners and the rights of the railways companies to which land had been compulsorily transferred in the late 19th century, Earl of Lonsdale considered. Applied to the instant case the test meant that where a not especially valuable substance, not exceptional in any sense, was ubiquitous in the area, that was a pointer to brickshale not being regarded as a mineral. The evidence was that strata of brickshale were ubiquitous in the area, and not especially valuable. In the circumstances the judge was right to conclude that he did not gain any assistance in construing the words of the reservation and exception from the exceptionality test as applied to brickshale, Waring v Foden explained. (2) The surrounding circumstances strongly supported the judge's conclusion that the underground working restriction was a strong pointer against brickshale being a mineral for the purpose of the 1921 conveyance. First, the existence of a quarry, from which brickshale was being excavated by surface methods immediately adjacent to the disposition site, would have been well known to the parties to the 1921 conveyance. Second, there were two coal mines in the area, and it was a reasonable inference that the reservation and the underground working restriction together were intended to apply primarily though not exclusively to coal. Third, the then state of the law should be taken to have been known to the draftsman and the House of Lords had decided four cases between 1888 and 1911 in which it was held that ordinary clay was not a mineral but that clays with special properties were minerals. In the circumstances the notion that the parties had deliberately negotiated a "stand-off", under which the minerals were reserved but not the right to extract them, was fanciful. (3) The judge had the benefit of the evidence of two experts as to the vernacular meaning of fireclay in 1921, and preferred that of B. There was no basis for interfering with his conclusion.

Appeal dismissed