Staples v Young

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 20 January 1908
• Court: Chancery Division (Ireland)
• Date: 20 January 1908

Staples

and

Young.

Ross, J.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1908.

Mines and minerals — Reservation of — Sand — Right of agricultural tenant to remove sand from holding.

Held, by the Court of Appeal (reversing the decision of Ross, J.), that the sand in the holding was not included in the reservation of “mines and minerals” in the deed in question, and that the action should be dismissed.

Hext v. Gill (L. R. 7 Ch. App. 699) considered.

Semble: A memorial of a Landed Estates Court conveyance lodged in the Registry of Deeds, being a duplicate of the original conveyance, may be received in evidence without proof of the loss of the original.

Action brought by Sir John Molesworth Staples, Bart., for an injunction restraining the defendant, his servants, agents, and licensees, from raising and taking away sand on and from the lands of Brackaville, in his possession, and for an inquiry as to the damages sustained by the plaintiff by the removal of sand from the lands by the defendant, and payment of the sum found to be due.

By indenture, dated 12th December, 1632, Sir Andrew Stewart granted to John Nicholson, his heirs and assigns, in fee-farm for ever, all the lands of Brackaville and Derry, subject to the rent of £4, “excepted and always reserved out of the said grant unto the said Sir Andrew Stewart, his heirs and assigns, free liberty with ingress, egress and regress in and through the premises, to hawk, hunt and fowl, and the use and benefit of all mines and minerals that could or might be had or found in and upon the said granted premises, and the benefit of all other royalties whatsoever belonging to the manor of Castlestewart.” This grant was confirmed by a subsequent grant dated 19th June, 1672, from the Earl of Suffolk to William Nicholson.

By Landed Estates Court conveyance, dated 26th April, 1864, the said yearly fee-farm rent of £4, and the use and benefit of the said mines and minerals, and the benefit of all other royalties whatsoever belonging to the manor of Castlestewart, and also all mines and minerals of what nature or kind soever of the other lands therein mentioned, with free liberty to get, dig, and carry the same away, were granted to Sir Thomas Staples and James Alfred Caulfield, their heirs and assigns. The plaintiff was the successor in title of Sir Thomas Staples, and entitled to his moiety.

The defendant was one of the tenants on the lands of Brackaville, and had, along with the other tenants of Brackaville and Derry, lately agreed to purchase his holding under the Land Purchase Acts from his landlord, the successor in title of the fee-farm grantee in the grant above mentioned. The defendant had for some time persisted in taking away sand out of his holding and selling it at a profit. From the evidence of the witnesses at the trial it appeared that the entire of Brackaville and Derry consisted of sand, and that there was an agricultural surface of about 8¹/₂ to 10 inches, composed for the most part of sand, in the proportion of five-sixths of sand and one-sixth of vegetable matter. The other facts appear in the judgments.

Jellett, K.C., and Hewitt R. Poole, for the plaintiff.

James O'Connor, for the defendant.

Ross, J.:—

As this case is one which, owing to the conflict of law on the points involved, is likely to be taken further, I do not think it would be right to put the parties to the cost of my reserving judgment. I therefore proceed to pronounce my opinion on the case as it presents itself to me now.

The plaintiff, who is a person of unsound mind, has brought the action for an injunction to restrain the defendant, his agents, and servants, from raising and taking away sand from the lands of Brackaville in the defendant's possession. The plaintiff is the owner of a moiety of fee-farm rent of £4 issuing out of the lands, and also to the use and benefit of the mines and minerals. His title goes back to the time of Charles 1. A grant was made by one Sir Andrew Stewart to John Nicholson in 1632, and it was in 1672 confirmed by a grant from the Earl of Suffolk and others. The rent of £4 thereby reserved, and the use and benefit of all mines and minerals, became the property in equal shares of the Caulfield family and the Staples family. A petition for sale was presented, which included the Caulfield moiety and the Staples moiety; and by Landed Estates Court conveyance, dated 26th April, 1864, the yearly fee-farm rent of £4, and the use and benefit of the mines and minerals, and the benefit of all other royalties whatsoever, belonging to the manor of Castlestewart, were granted to Sir Thomas Staples and James Alfred Caulfield. The plaintiff is the successor in title of Sir Thomas Staples, and is entitled to his moiety.

In the first place, the subject-matter of the original grant was a large tract of lands, the lands of Derry and Brackaville in Tyrone, in the hands of a great many lessees. In the original grant there was a reservation of mines and minerals. The defendant's case here is that this particular small farm of Joseph Young—consisting of only about 4 acres—is sand, and nothing but sand, and that, therefore, there can be no reservation such as is claimed by the plaintiff, because it, the sand, is the subject matter of the grant itself.

As an illustration of the defendant's argument—suppose there were a lease of the Giant's Causeway and a reservation of mines and minerals, it would be inconsistent with the estate granted if the lessor were to claim the actual rocks, because he had demised the rocks, and because they alone could be the subject-matter of the demise.

The evidence of the plaintiff and of the defendant does not differ very much—the evidence is that there is an agricultural surface of about 8¹/₂ to 10 inches, composed for the most part of sand. One of the experts for the defence says that five-sixths of the agricultural surface is sand; but the other expert called for the defendant is not ready to corroborate this, and my belief is that if bag No. 1 is a fair sample—and it was admitted to be so—there is not so large a proportion of sand.

At all events there is this agricultural surface, of whatever depth, cultivated for many years. The defendant bought the tenant's interest some years ago, but he did not get a fair rent fixed till 1903, from which I infer that the rent was not very excessive, or he would before that have taken his landlord into Court. But in 1903 he did take him into Court, and there was a fair rent of £3 13s. fixed—only a slight reduction on the original rent. What defendant bought was the tenant's interest, and that must have been valued as if it were agricultural land. Below this agricultural surface is a zone of sand which would not be useful for building purposes, because it is impregnated with vegetable matter, and would therefore retain damp; but when you cut below this again, you come to sand which is suitable for building purposes. The evidence is, that at this latter point you get pure sand, and still further down you arrive at a belt of blue clay which will hold water. Counsel for the defence in his very able argument has pressed me to hold that what is a mineral in one field is not a mineral in another. We are not now at the beginning of the discussion. The decisions have been numerous and conflicting. I am not in a position to throw any new light on the subject. I think that on the facts above stated, there is a binding decision in Ireland which settles the matter.

I allude to the decision of the Court of Appeal: Fishbourne v. Hamilton(1), following a decision of the Court of Appeal in England: The Earl of Jersey v. Guardians of Neath Union(2).

Both these judgments were delivered since the controversy was raised.

In Fishbourne v. Hamilton(1), the question was whether the reservation of mines and minerals included beds of limestone. We have the same elements in that case as in this. There they had the agricultural surface, and the limestone under it. Here we have the agricultural surface, and the sand under it. I cannot see how any ingenuity can differentiate between the cases.

I therefore hold that the plaintiff is entitled to the remedy asked for, and I accordingly grant the injunction with costs, the plaintiff waiving his right to an inquiry as to damages.

D. M. S.

The defendant appealed (2).

James O'Connor and Devitt, for the appellant:—

In construing this reservation of “mines and minerals” regard must be had to all the circumstances of the case, and the intention of the parties to the original grant considered: Bell v. Wilson(3); Great Western Railway Company v. Blades(4). The defendant's holding is in a district where mines of coal and fire-clay abound, and the reservation was intended to operate on such mines, and not on the sand which constituted the very subject-matter of the grant. If the plaintiff succeeds in this action, it is open to him to remove all the sand from the holding, and leave nothing whatever for the defendant, who has got a fair rent fixed upon the holding on the basis of its being an ordinary agricultural holding consisting of sandy loam, and has now signed a purchase agreement. It is, in the words of Kindersley, V.-C., in Bell v. Wilson(3), “so unnatural and unlikely” that the parties to the original grant could have intended any such consequence to flow from the reservation, that the Court should hold “sand” to be excluded.

We are not concerned to argue that Hext v. Gill(1) is not now good law, as, though sand may come within the definition of minerals there laid down by Mellish, L.J., this case cannot be determined by reference to any abstract definition. In Attorney-General for the Isle of Man v. Mylchreest(2) Sir Montague E. Smith points out that, although “minerals” in its scientific and widest sense may include clay and sand, it may be shown by the...