Minerals and Timber
| Author | Christopher Jessel |
| Pages | 203-224 |
Chapter 11
Minerals and Timber
mines, minerals, quarries, furzes, trees, woods, underwoods, coppices
11.1 NATURE OF RIGHTS TO WOOD AND MINERALS
Trees and minerals in the ground are part of the land and therefore automatically pass with the surface on sale or inheritance unless there are specific provisions to separate the legal ownership. Both may be physically severed by felling the timber (or cutting branches) or digging the minerals, in which case a new piece of property in the wood, coal, ore or stone arises. Such property will be regarded as being owned as a chattel by the first person to take it – normally the woodsman, miner or their employer. Such rights are valuable and, in the context of the manor, developed special rules.
In former times minerals and timber were seen as similar and in many respects the rights attached to them are comparable. Both were seen to be products of the soil. A tree will grow larger over the centuries and minerals will become workable or new types of mineral may become valuable. The felling of trees and working of minerals both constituted waste that is a material change in land. This could work to the detriment of a future owner. The doctrine of waste applies to other changes such as erecting or demolishing a building and is often encountered in the context of settlements. Where land was held by a tenant for life with the remainder vested in some other person such as a son or cousin the remainderman had the power to prevent the tenant for life from committing waste. This could be a source of tension in families.
When a lease was granted it was often implied that it did not carry the right to work minerals or fell timber as that would be waste. Occasionally it could go further and imply an exception to the landlord, although that is not so under the modern law. Likewise clear rules applied to copyholds. Thus, in Eardley v
204 The Law of the Manor
Granville
As regards the trees and minerals, the property remains in the lord, but, in the absence of custom, he cannot get either the one or the other, so that the minerals must remain unworked, and the trees must remain uncut. The possession is in the copyholder; the property is in the lord ... The same rule applies to minerals as to trees. If you once cut down the tree, the lord cannot compel the copyholder to plant another. The latter has a right to the soil of the copyhold where the tree stood, including the stratum of air which is now left vacant by reason of the removal of the tree.
Rights to minerals were the most contentious and litigated aspect of manorial law because substantial values were at stake. Some disputes concerned the rights of copyholders and commoners to minerals in the lord’s waste. Others involved the lord’s rights to minerals in copyhold land and that is reflected in current issues. Under the transitional provisions of the Land Registration Act 2002 many of these rights could be at risk unless protected before the first registration or disposition of land after 12 October 2013. This chapter therefore sets out the issues in some detail. It needs to be read with the discussion of the nature of manorial rights in 9.3 and with the analysis of the 2002 Act in 25.9–
25.10 and some of the same issues apply as to sporting rights in 12.4.
Copyholders had a general duty to the lord not to commit waste. The origin lies in the nature of unfree land. Villeins, the predecessors of pure copyholders, had both a duty and a right to remain on and cultivate their holdings, to live in their homes and to keep them in good order. Their purpose and needs were agricultural and they were concerned with crops and animals. Other things were not their business and, like everything in the manor that was not specifically appropriated, these belonged to the lord. Therefore, the lord had the property in the minerals that lay under the land and in the trees that grew on it. However, the copyholder had possession
The lord, as owner, had the right to minerals and timber on his own property both demesne and waste, although on the waste he could not exercise his rights so as to interfere with rights of common. The inclosure legislation contains a good deal of material about the lord’s rights but much of that is now obsolete because opening a new quarry
1 (1876) 3 Ch D 826.
2 Scriven, J, A Treatise on the Law of Copyholds (Butterworth & Co, 7th edn by Archibald
Brown, 1896) 194.
3 Mines and Quarries Act 1954, s 151.
fencing off the land and that can only be done with the consent of the Secretary of State under the Commons Act 2006, s 38 (formerly the Law of Property Act 1925, s 194). The general rule apart from that is that the lord can (subject to planning consent) take minerals by underground workings, and small quarries or coppices are usually tolerated by the commoners provided their interests are not harmed. Indeed, a cluster of trees may give shelter to grazing animals.
11.2 TREES
The lord’s customary right of property in timber on copyhold land was abolished by the Law of Property Act 1922.
The effect of the old custom of timber was unfortunate. It was said that ‘the oak scorns to grow but on free land’, not from any special freedom-loving quality of oaks but because where an acorn began to sprout or a sapling to grow on unfree land it was against the interests of the copyholder. He would be excluded from an ever-expanding area of this land as the girth of the tree increased, perhaps for centuries, with no power to cut or remove it. Thus saplings tended to disappear before they could grow any larger. The lord, on the other hand, had no power to enter and plant trees. As a result, vast areas, particularly of the champion manors, were denuded of trees for hundreds of years and, as old ones died, they were not replaced. Trees began to reappear only after the inclosures of the eighteenth century and it is many of those, now over-mature, that have fallen to storms in our own times. This rule was always subject to special custom and many custumals note that tenants could cut timber on their own copyholds, although usually only for their own use.
Woodland as such belonged to the lord, but is included in the Law of Property Act 1925, s 62(3) because it can be hard to classify either as demesne or waste. Although not arable, woodland was cultivated and coppices were carefully tended. Coppice
4 Law of Property Act 1922, s 128(2)(d), s 138, Sch 13, Part II, para 12.
5 Stroud’s Judicial Dictionary of Words and Phrases (Sweet & Maxwell, 5th edn by John S
James, 1986): Timber.
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trees
Woods in England were not the same as forests. Forests are lands formerly subject to forest law which related to sporting rights, and are discussed in 12.2. The position may be different on the Continent where forests were foris or beyond the areas of settlement. In eastern Germany and parts of France areas, mainly covered with trees, remained as wilderness until late in the Middle Ages, but in England there was very little wildwood left after the Stone Age. Woodlands were intensively managed for timber, underwood fodder and sport. Indeed, some areas covered with trees may have been left to nature to a greater extent since the fellings of the First World War than for hundreds of years before, with the decline of the great estates and management for sporting.
11.3 ESTOVERS, BOTES, FURZE AND TURBARY
Estovers is the right to take wood and other growing things for building, fencing or fuel. It can extend to gorse, heather, fern and bracken for animal litter or the right to cut and take grass for fodder. The precise extent of estovers varies from place to place and even within a manor there may have been different rights for different holdings. In the New Forest estovers are called fuelwood. Estovers for building are restricted to certain ancient houses. If a house decays, or is destroyed and rebuilt, the right can still be claimed, but only for a replacement of the same size. Similarly, if an ancient house is extended the right does not apply to wood used in the extension.
Estovers and botes are sometimes considered to be the same thing. Botes were various forms of right to take wood from the commons. They...
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