Thomson v St. Catherine's College, Cambridge ; Mappin's Masbro Old Brewery v Thomson ; St. Catherine's College, Cambridge v Rosse (Dowager Countess)

JurisdictionEngland & Wales
Date1919
CourtHouse of Lords
Year1919
[HOUSE OF LORDS.] THOMSON AND ANOTHER APPELLANTS; AND MASTER AND FELLOWS OF ST. CATHARINE'S COLLEGE, CAMBRIDGE, AND OTHERS RESPONDENTS. MASTER AND FELLOWS OF ST. CATHARINE'S COLLEGE, CAMBRIDGE APPELLANTS; AND THOMSON AND ANOTHER RESPONDENTS. MAPPIN'S MASBRO' OLD BREWERY, LIMITED APPELLANTS; AND THOMSON AND ANOTHER RESPONDENTS. MASTER AND FELLOWS OF ST. CATHARINE'S COLLEGE, CAMBRIDGE APPELLANTS; AND DOWAGER COUNTESS OF ROSSE AND OTHERS RESPONDENTS. 1919 Jan. 27. LORD FINLAY, LORD DUNEDIN, LORD ATKINSON, LORD SHAW OF DUNFERMLINE, and LORD SUMNER.

Mines - Inclosure Act - Construction - Ownership of Mines and Minerals - Right to let down Surface in working.

A special Act passed in 1814 for the inclosure of lands in three manors, which were dealt with in similar terms, in each case recited that the lords of the manor were “the owners of the soil and waste grounds” within the manor “and of the mines and minerals therein,” and directed that a certain portion of the commons and wastes should be allotted to the lords of the manor “as a full and sufficient recompense for their right to the soil” of the commons and wastes, and that the residue should be allotted in severalty among the commoners in full bar and satisfaction of and for their respective rights of common, and saved to all persons (other than those to whom any allotment or compensation should be made, and except such rights and interests as the inclosure thereby authorized should absolutely require to be barred, destroyed, or extinguished) all such rights and interests in the commons and wastes as they would have enjoyed if the Act had not been made. Excepting the above recital the Act and award were silent as to mines and minerals:—

Held (by Lord Finlay, Lord Dunedin, Lord Shaw of Dunfermline, and Lord Sumner; Lord Atkinson dissenting) that the recital was not sufficient to cut down the ordinary meaning of the word “soil,” and that the right to the minerals passed as part of the soil to the allottees of the several allotments.

St. Catharine's College, Cambridge v. Greensmith [1912] 2 Ch. 280 and St. Catharine's College, Cambridge v. Rosse [1916] 1 Ch. 73 overruled.

Held further (by all their Lordships) that as regards the parties to St. Catharine's College, Cambridge v. Rosse [1916] 1 Ch. 73, in which the Court of Appeal had decided that the lords of the manor were entitled to the minerals under the lands allotted to the commoners, the lords of the manor were not entitled to let down the surface of those lands for the purpose of working the minerals thereunder.

Decision of the Court of Appeal reversed upon the first point and affirmed upon the second point.

THE three consolidated appeals arose out of an action brought by W. A. Thomson and B. W. Peel, allottees of lands formerly constituting part of the waste and commons of the manors of Norton and Askern, under an Act passed in 1814 (54 Geo. 3, c. 136) for inclosing lands in the manors and townships of Campsall, Norton, and Askern, in the county of York, against the Master and Fellows of St. Catharine's College, Cambridge, lords of the manor of Norton, and Mappin's Masbro' Old Brewery, Ltd., lords of the manor of Askern, for declarations that upon the true construction of the Act the defendants (1.) were not entitled to any of the mines or minerals lying under the plaintiffs' lands; and (2.) alternatively were not entitled to sink pits in, or deposit soil on, the surface of the plaintiffs' lands, or to make roads across such surface, or to let down such surface in the course of working mines or minerals under the same or otherwise. The defendants counterclaimed for declarations in the opposite sense.

The parties to the fourth appeal were also parties to a previous action of St. Catharine's College v. RosseF1, brought by the College against allottees of other lands formerly comprised in the waste and commons of the manor of Norton. In that action the Court of Appeal (from whose decision no appeal was brought to the House of Lords), affirming a decision of Eve J., who followed a decision of Neville J. in St. Catharine's College v. GreensmithF2, decided the question of the ownership of the minerals in favour of the College, and the present action was brought by the College for a declaration that they were entitled, in the terms of the declaration secondly above stated, to interfere with and let down the surface of the lands allotted to the defendants for the purpose of getting the minerals thereunder.

The “Thomson” action and the “College” action were tried together before Sargant J.

The learned judge held (1.) following St. Catharine's College v. RosseF3 that the lords of the respective manors were entitled to the mines and minerals under the lands of the allottees; but (2.) that they were not entitled to sink pits in or deposit soil on the surface of such lands, or to make roads across the surface, or to let down the surface in the course of working such mines or minerals or otherwise; and his decision was affirmed on both points by the Court of Appeal (Swinfen Eady L.J., Bankes L.J., and Eve J.).

The facts and the material provisions of the Act are set out in the judgment of Lord Finlay.

Nov. 29; Dec. 2, 3, 5, 6. Maugham K.C. (with him Dighton Pollock) for the appellants in the first appeal.

Upon the true construction of this Act the allotments of the commons and waste lands to the commoners included the mines and minerals thereunder. The Court of Appeal, in deciding that the minerals remained in the lord of the manor, treated the question as concluded by St. Catharine's College v. RosseF3, which followed a decision of Neville J. in St. Catharine's College v. Greensmith.F2 It is submitted that those decisions were wrongly decided and that undue weight was given to the recital in the preamble. To treat the word “soil” as excepting mineral rights is to give it a wholly unnatural sense which will not be adopted in the absence of a very strong context, and the language of this preamble is not sufficient for that purpose. Townley v. GibsonF4 supports the appellants' contention. Duke of Buccleuch v. WakefieldF5 is distinguishable, for there was there a clear reservation of mines and minerals. The practice in Inclosure Acts of making an express reservation of mines and minerals to the lord of the manor, together with the power of working the same, is so common that the omission of such a clause is good ground for supposing that no reservation of mines and minerals was intended. Moreover, a reservation of mines and minerals without any powers of working is beneficial to no one, and such an intention will not readily be imputed to the Legislature. The respondents must rest their case simply on the preamble, the effect of which is to make the usual reservation clause wholly unnecessary. The Act deals not only with wastes and commons, but with open and common fields, in regard to which no question arises of any reservation of the minerals to the lord, but neither the Act nor the award made thereunder draws any distinction between the allotments of the commons and wastes and the allotments of the open fields. All are allotted in fee simple.

G. J. Talbot K.C. (with MacSwinney) for the respondents St. Catharine's College, and Hon. Frank Russell K.C. (with E. E. H. Brydges) for the respondents, Mappin's Masbro' Old Brewery, Ltd.

In construing an Inclosure Act one starts with the presumption that the Commissioners had no authority to deal with the division of minerals, inasmuch as that is foreign to the purposes of the Act. The preamble of this Act differentiates between soil and minerals in reciting the rights of the lord of the manor, but the appellants' argument gives no explanation of this. The preamble mentions the mines and minerals in the case of the waste and commons by reason of the lord's interest therein, but it omits all mention of them in the case of the open fields because the lord is not interested. The scheme of the Act is to provide compensation for certain things and to save all rights for which no compensation is made. The Act does not deal with the mines and minerals under the waste at all; it leaves them where they were. The Act recites that the lord of the manor is owner of properties (a) and (b). Then it enacts that no person is to be deprived of his property unless compensation is provided, and it provides compensation for (a) but is silent as to (b). The irresistible inference is that (b) is left where it was — in the lord. In determining whether the lord's right to the minerals is gone or remains, the crucial test is compensation. Has the lord been compensated for the minerals? Clearly not in express terms; and unless he gets compensation under the word “soil” in the lord's allotments' clause (s. 28) he is not compensated. But the recital treats “soil” and “minerals” as two separate things, and “soil” in s. 28 is used in the same sense as excluding minerals by force of the recital; and if that clause gives no compensation the saving clause applies. In Townley v. GibsonF6 there was no context to cut down the primary meaning of the word “soil,” which, apart from any controlling context, admittedly includes minerals. Here the context is to be found in the preamble and the general saving clause. The observations of Lord Hatherley and Lord Chelmsford in Duke of Buccleuch v. WakefieldF7 are directly in point. See also Pretty v. Solly.F8 This is no unreasonable demand of the lord, for nothing could be more practically inconvenient than splitting up the mines to correspond with the allotments of the waste, many of which are extremely small.

[They also referred to Ecroyd v. CoulthardF9 and Finchley Electric Light Co. v. Finchley Urban Council.F10]

Maugham K.C. replied.

The second, third, and fourth appeals were then heard.

G. J. Talbot K.C. (with MacSwinney) for the appellants in the second and fourth appeals, and Hon. F. Russell K.C.

(with E. E. H. Brydges) for the appellants in the third...

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