Rowbotham v Wilson
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1860 |
| Date | 19 June 1860 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 463
House of Lords
Mews' Dig. iii. 713; vi. 570; ix. 1213, 1224. S.C. 30 L.J. Q.B. 49; 6 Jur. N.S. 965; 2 L.T. 642; and, below, 8 E. and B. 123; 27 L.J. Q.B. 61; 3 Jur. N.S. 1297; 5 W.R. 820. Followed and applied in numerous cases, most of which are collected in Dalton v. Angus, 1881, 6 A.C. 742; and cf. Bell v. Love, 1883, 10 Q.B.D. 558; Dixon v. White, 1883, 8 A.C. 834; Darley Main Colliery Co. v. Mitchell, 1886.11 A.C. 133; Hall v. Norfolk (Duke of) (1900), 2 Ch. 493.
Land - Surface - Support to Minerals - House - Grant - Release.
... '. i òò n- 3- /ff '/."4 [348] HENRY ROWBOTHAM, and Others, - Plaintiffs in Error; WILLIAM ,- Defendant in Error [June 8, 11,19, I860]. ty'& t- £. * [Mews' Dig. iii. 713 ; vi. 570 ; ix. 1213, 1224. S.C. 30 L.J. Q.B. 49 ; 6 Jur. N.S. 965 ; /?ò 2 L.T. 642; and, below, 8 E. and B. 123; 27 L.J. Q.B. 61; 3 Jur. N.S.. 1297; 5 W.R. 820. Followed and applied in numerous cases, most of which are collected in Dalton v. Angus, 1881, 6 A.C. 742 ; and cf. Bell v. Love, 1883, 10 Q.B.D. 558 ; Dixon v. White, 1883, 8 A.C. 834 ; Darley Main Colliery Co. v. Mitchell, 1886. 11 A.C. 133; Hall v. Norfolk (Duke of] (1900), 2 Ch. 493.] 'Applied. ò Applied. MlCHMLW Land - Surface - 'Support to Minerals - House - Grant - Release. """ssi] \'c 217 ' Prima facie, the owner of land is entitled to the surface itself, and all below it, ex jure naturae ; those who seek to derogate from that right must do so by virtue of some grant or conveyance. The rights of the grantee of the minerals depend on the term of the deed by which they are conveyed. Under a grant of minerals, a, power to get them is a necessary incident. /%v; ,CJ^ i7r In 1770 a private Act of Parliament was passed to provide for the allotment of/?Xf ,^ commons and commonable lands, etc. These lands were described as having ' /*'* mines under the surface. Commissioners were appointed to allot (having due regard to the mines) according to the rights of the various persons interested in the lands, some of which were divided into small parcels. The Commis- sioners, by their award, allotted the lands, so that some of the mines allotted to A. were situated under portions of the land allotted to B. The persons in- terested executed this award, which (reciting that this mode of allotment . had been necessary) contained a clause, declaring that the proprietors agreed with each other, and their heirs, that the- lands so allotted should be lawfully held and enjoyed by the allottees' without molestation, and without any mine owner being subject to any action for damages on account of working and getting the mines, or by reason that the lands1 might be " rendered uneven i;^d less commodious to the occupiers thereof, or by sinking in hollows, and being otherwise defaced and injured where such mines shall be worked .... the several proprietors having agreed with each other, and being willing and desirous to accept their respective allotments in their several situations hereinbefore declared, subject to any inconvenience or incumbrance which may arise from the cause aforesaid." The mines were worked by A., his assignee, and the surface of the land thereby (but without negligence) injured : Held, that whatever is the general right in the surface to support, this clause in the award operated as a grant of a right to disturb the surface of the land, and B., therefore, could not maintain an action for damage on that account. Qu. Whether this clause could operate as a release of the right to support? 463 VIII H.L.C., 349 ROWBQTHAM V. WILSON [i860] The circumstance that (some years after the award, but many more than twenty years before the injury complained of) houses were erected on the land was held not to make any difference with regard to the relative rights of the parties under the award. [349] Daniel Rowbotham (since deceased, and now represented by the Plaintiffs in Error as his executors) was reversioner in fee, under mesne conveyances from one Samuel Pears, of certain ancient houses and surface land situated in the parish of Bedworth, in the county of Warwick. He brought an action against the Defendant Wilson, who claimed as representative of one Henry Howlette, an allottee of coal mines, to recover damages for injury done to his land and houses by the working of those mines. By order of the Court of Queen's Bench, a case was stated. The Case set forth that in the 9 Geo. 3,* an Act was passed for [350] dividing and enclosing the common fields, etc., of Bedworth, in the county of Warwick, and Commissioners \vere appointed to carry that Act into effect. On the 21st June 1770, the Commissioners made their award, by which (among other things) they allotted certain lands to one Henry Howlette. " And as to the mines on the estate of H. Howlette previous * By that Act, c. ci., which recited that there were in the parish of Bedworth " certain common fields, common grounds, and commonable lands," of which certain persons therein named were owners, and that " the property in the lands, etc., lies intermixed and dispersed in small parcels," remote from the houses of the owners, which had been found inconvenient to them, it was stated that they were " desirous that the said lands and grounds may be specifically allotted amongst them in severalty, according to their respective rights and interests," Commissioners were appointed. They were authorised to make a survey, and, " after the survey," to " divide, ascertain, and allot the said common fields, common grounds, and commonable lands and premises hereby intended to be inclosed," among the several persons " entitled to or interested therein, either in right of soil or in any other right or interest whatsoever .... with a just regard to the quality, convenience, and contiguity of situation, as well as to the quantity of the lands to' be assigned to each proprietor, and with a jusifc regard to any mines or delphs of coal, lime, or stone supposed i be under the same, but subject, nevertheless, to the rules, orders, and directions by this Act prescribed," etc. " And whereas there are lands supposed to have mines under them, and on that account the proprietors may be desirous of retaining their property therein, such of the lands of the proprietors as the Commissioners shall adjudge to have any valuable mines of coal, etc., under them, shall be allotted and set out together, by metes and bounds, in distinct lots, unto or for such of the proprietors respectively as shall desire the same, provided such desire shall be signified by writing, etc.; or otherwise that there shall be set out for such proprietors other lands under which there shall be supposed to lie mines of equal value to those which they were respectively possessed of before the passing of this Act; and the said Commissioners, in allotting the said mine lands, shall make just allowances between such of them, the delphs whereof remain entire and unbroken, and such of them which have heretofore been open and in part worked." " When the said Commissioners shall have completed and finished the partitions and allotments of the said open and common fields, common grounds, commonable lands and premises, according to the tenor, true intent, and meaning of this Act, they shall draw up an award, which shall express the quantity of acres, etc., contained in the said common fields, common grounds, commonable lands and premises so intended to' be inclosed, and the quantity of each and every part which shall be assigned and allotted to the several parties entitled to and interested in the same, and a description of the situation, buttals, and boundaries of such parcels and allotments respectively, and proper orders and directions for the fencing, etc., and also for making and laying out proper roads, etc., through the same, and such other orders, etc., as shall be necessary, conformable to the tenor and purport of this Act." The new allotments were to' be in bar of old estates, " right of soil, right of common, and other rights, interests, and properties whatsoever in, over, and upon the said common fields," etc. 464 " ROWBOTHAM V. WILSON [1860] VIII H.L.C., 351 to the inclosure thereof, the same not having been requested to' be set out by metes and bounds, we do' assign, appoint, and allot untoi the said...
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