Smith v Lloyd and Others
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1854 |
| Date | 07 February 1854 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 240
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 C. L. R. 1008; 2 W. R. 271. Referred to, Smith v. Stocks, 1869, 10 B & S. 701; Earl of Dartmouth v Spittle, 1871, 24 L T. 67; 19 W. R. 444; Trustees, Executors and Agency Company v. Short, 1888, 13 A. C 793; In re Duffy's Estate, [1897] 1 Ir. R. 295.
smith v. lloyd and others. Feb 7, 1854.-Where the owner of the fee-simple of a close, with minerals under it, conveys the surface reserving the minerals, with the light of entry to get them , and he afterward grants the minerals with such right, mere nonuserfor more than forty years, no other person having worked or having been in possession of the minerals, is not sufficient, under the 3 & 4 Will. 4, c. 27, ss. 2 and 3, to bar the grantee's right of entry to get the minerals. That statute does not apply to cases of want of actual possession by the plaintiff, but to those cases only where he has been out of it, and another party has been in possession for the prescribed time , for there must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute -Declaration for breaking and entering the plaintiff's clo^e, damaging the surface, and getting the plaintiffs minerals out of it. Plea, that, in 1735, R P was seised in fee both of the close and minerals, and then conveyed the close to one J. li, under whom the plaintiff claimed, excepting the minerals to himself, his heirs, and assigns, and reserving liberty to enter and get them. I hat the plaintiff was entitled under J. R. to the close and surface, arid that the defendants were seised or otherwise entitled under R. P. to the excepted minerals, concluding by justifying the trespasses in the exercise of the reserved liberty. Replication, that the entry made by the defendants on the surface and minerals was not within twenty years next (d) 7 & 8 Viet, c in s. 50, enacts, "That it shall be lawful for the Great Western Kail way Company, whenever they shall act as carriers, 01 shall provide locomotive or steam power, or carriages for the conveyance ot passengers, animals, goods, wares, merchandise, articles, matters, or things, to charge, for such locomotive or steam power and carnages, such sum (not exceeding the sums, if any, limited by the said recited Acts, or any of them), and that either per ton or per mile, or by bulk, number, measure, or admeasurement, or by fixed charges, as they shall think expedient provided always, that, in whatever way the said charges are made, thev shall be made equally to all passengers in respect of all animals, &e, arid things of like description and quality, and conveyed in or propelled by a like carriage or engine passing only over the same portion of and over the same distance along the said railways, or either of them, and under the like circumstances , and no reduction or advance in any of such ehajges shall be made pirtially, either directly or indirectly, in favour of or against any particular company or person." (a) Alderson, B., had left for Chambers 9 EX. 563. SMTTB V LLOYD 241 after the time to make the same accrued to the defendants, or any one under whom they eLumed , and the replication, after negativing the disability of the defendants' infamcy, &c. alleged that the right of entry was extinguished Rejoinder, that, at the time of the execution of the indenture of 1725, R P. was in possession both, of the surface and the mines, and that he and his assigns continued to be in possession of the coal and ironstone to the time of the trespass, and that neither R. P nor the persons claiming under him ever were dispossessed or discontinued sueh possession. Surrejoinder, admitting R. P. to have been in possession, but denying that his assigns or the defendants ever were in the actual possession, nor ever acquired actual possession of the minerals Rebutter, that neither J. R. nor any person under him, nor any other person, at any time entered upon or had worked the minerals -Held, on demurrer to the rebutter, that the plea impliedly admitted such a possession by the plaintiff of the mineiuls as was sufficient to maintain trespass, and that the replication was a good answer to the plea, but that the rejoinder was bad, as not being a complete denial that the right to enter had accrued more than twenty years before.-Held, also, that the rebutter was bad, although it would have been good if it had stated that J. R. nor any thing claiming under him, nor the plaintiff, nor any othei person whatever, entered upon or worked the said minerals, or otherwise acquired the possession thereof. [S. C. 2 C. L. R. 1008; 2 W. R. 271. Referred to, Smith v. Stocks, 1869, 10 B & S. 701; Earl of Dartmouth v Spitfit, 1871, 24 L T. 67 ; 19 W. R. 444; Trustees, Executors and Agency Company v. Short, 1888, 13 A. C 793; In ie Duffy's Estate, [1897] 1 Ir. R. 295.] The first count of the declaration stated, that the defendants broke and entered certain land of the plaintiff, being a close called the Free Piece, and bioke clown part of the fences thereof, and dug up and removed the surface [563] soil of the said close, and dug up ajid sunk a deep hole in the said close, and placed the said surface soil so removed as aforesaid, and the earth and soil dug out of the said hole, on another part of the surface of the said close, and thereby encumbered the same, and Jilso dug and gat out of the said close from under the surface of the same large quantities of coal, ironstone, and other minerals of the plaintiff', from certain veins and seams thereof lying in the said close of the plaintiff under the surface of the same, and wrongfully converted the same to the use of them the defendants. The defendants pleaded, thirdly, to the alleged trespasses co and upon the close in the first count mentioned, that, in the year 1725, one Richard Parkes was seised in...
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