Earl of Rosse v Wainman
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1845 |
| Date | 05 December 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 724
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 15 L. J. Ex. 67: affirmed 1848, 2 Ex. 800. Followed, Micklethwait v. Winter, 1851, 6 Ex. 644; Jamieson v. North British Railway, 1868, 6 Scot. L. R. 188. Distinguished, Brown v. Chadwick, 1857, 7 Ir. C. L. R. 101. Discussed, Darvill v. Roger, 1855, 3 Drew. 294; Midland Railway Company v. Haunchwood Brick and Tile Company, 1882, 20 Ch. D. 555. Explained, Lord Procost of Glasgow v. Farie, 1888, 13 A. C. 657. Referred to, Attorney-General (Isle of Man) v. Mylchrcest, 1879, 4 A. C. 305; Attorney-General v. Welsh Granite Company, 1887, 35 W. R. 619; Earl of Jersey v. Neath Union, 1889, 22 Q. B. D. 563; North British Railway v. Budhill Coal and Sandstone Company, [1910] A. C. 133.
[859] earl of eosse v. wainman. Dec. 5, 1845.-Certain waste lands in the manor of Shipley, to the soil of which, and everything constituting the soil, tho lord of the manor was entitled, were, by an Inclosure Act, 55 Geo. ,'i, c. xviii. (which recited the lord's title), taken away from the lord and allotted to commoners, except as saved by the 32nd clause. That clause reserved to the lord all mines and minerals, of what nature or kind soever, lying and being within or under the said commons and waste grounds, in as full, ample, arid beneficial a manner, to all intents and purposes, as he could or might have held and enjoyed the same in case the said act had not been made ; and enacted, that he should and might at all times thereafter have, hold, win, work, and enjoy exclusively all mines and minerals, of what nature or kind soever, within arid under the said commons and waste grounds, with full liberty of digging, sinking, searching for, winning, and working the said mines and minerals, and carrying away the lead ore, lead, coals, iron-stone and fossils, to be gotten thereout: provided that the lord, in the searching for and working the said mines and minerals, should keep the first layer or stratum of earth separate and apart by itself, without mixing the same with the lower strata,. The 33rd section provided for reimbursement to the owners of allotments, for injury done by searching for or working the mines and minerals:-Held, that the reservation clause must be construed with reference to the title of the lord to the whole of the soil; and, inasmuch as the object of the act was to give to the commoners the surface for cultivation, and leave in the lord what it did not take away for that purpose, the word "minerals" must be understood, not in its general sense, signifying substances containing metals, but in its proper sense, as including all fossil bodies or matters dug out of mines, that is, quarries or places where anything is dug; and this notwithstanding the provision in the latter part of the clause, authorising the carrying away the " lead ore, lead, coal, iron-stone, and fossils," as fossils may apply to atones dug in quarries: therefore, that the clause reserved to the lord fhe right tq the stratum of stone in the inclosed lands. [S. Cj 15 L. J. $x. 67: affirmed 1S48, 2 Ex. 800. Followed, Micklethwait v. Wilder, IH-il, 6 Ex. 044; Jamieaun v. North, British Railway, 18(18, G Scot L. li. 188. Digtinguishedj Brown v. Chadwkk, 1857, 7 Ir. C. L. K. 101. Discussed, Da/mitt v. Roger, 1855, 3 Drew. 294; Midland tiaihmi/ Uinn/paiiy v. Huunchwoail Brick and Tile y, 1882, 20 Ch. D. 55D. Explained, Lord Promst of Ulaxyow v. Fane, 1888, 14 M. tcJf. 860. EARL OF ROSSE V. WATVMAN 725 13 A. G 657. Referred to, Attorrtey-ffeneral (Isle of Man) v. Mylckreest, 1879, 4 A. C. 305; Attorney-General v. H'einh Granite Company, 1^87, 35 W. Li. (ill); Earl of Jersey v. Neaih Union, 1889, 22 Q. B. D. 563; North Hritiah, Railway v. Budhill Goal and Sandstone Uomjiany, [1910] A.. C. 133.] Trover, charging the defendant with the conversion of fossils, stones, flagstones, and other minerals, to which the defendant pleaded not guilty, and a denial of the plaintiff's property. Issue having been joined, a case was stated by consent of the parties for the opinion of this Court, as follows :- For many years previous to and at the time of the passing of the act of Parliament hereinafter next mentioned, the Reverend Cyril Jackson, D.D., was seised in fee of the manor of Shipley, in the county of York. By an act of Parliament passed in the 55th year of the reign of his late Majesty King George the Third, intituled "An Act for inclosing Lands within the Manor and Township of Shipley, in the Parish of Bradford, in the West Riding of the county of York," after reciting, that there were, within the manor and township of Shipley, in the parish of Bradford, in the West Riding of the county of York, several commons or parcels of waste ground called [860] High Bank and Low Moor, and several other parcels of waste ground, containing in the whole, by estimation, '280 acres, or thereabouts ; and also reciting, that the Reverend Cyril Jackson, I). L)., was lord of the manor of Shipley, and as such was owner of the soil of the said commons and waste grounds, and entitled to all mines and minerals within and under the said commons and waste grounds ; and reciting, that the said Cyril Jackson, and several other persons, were owners and proprietors of estates within the manor and township of Shipley aforesaid, and in respect thereof were entitled to right of common aud other rights and interests in arid upon the said commons and waste grounds; it was (amongst other things) enacted, that the commissioner appointed for carrying the said act into execution should, after setting out and appointing the public carriage roads aud highways through and over the said commons and waste grounds intended to be divided, allotted, and inclosed as aforesaid, set out, allot, and award uuto and for the said Cyril Jackson, as lord of the said manor, and to such person or persons as should then be entitled to the said manor, his, her, or their heirs and assigns, such part and parcel of the residue aud remainder of the said commons and waste grounds as should, in the judgment of the said commissioner, be equal in value to one full sixteenth part of the said residue of the said commons and waste grounds, in lieu of, and as a full recompense for, all such right and interest in and to the soil of the said commons and waste grounds as was not thereinafter expressly saved...
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