Coleman & Anor v Ibstock Brick Ltd

A reservation of mines and minerals is construed objectively by reference to the instrument, the relevant vernacular meaning at the date of the grant, the commercial background, the nature of the substance and any express working powers.

Exceptionality is a separate pointer from the question whether a substance forms part of the ordinary soil. A substance that is ubiquitous, of modest value and lacking special character may fall outside the reservation. An underground-working restriction may strongly indicate that material known to be obtainable only by surface extraction was not reserved.

The appellants, successors in title to the vendor under a 1921 conveyance, claimed rights to ironstone, brickshale and fireclay beneath land now owned in part by Ibstock Brick Ltd. The conveyance reserved coal, ironstone and other minerals, together with powers of working by underground methods only.

On preliminary issues, the High Court held that brickshale and fireclay in the wider sense were not within the reservation. The appellants obtained permission to appeal after a renewed application. The central issue was the proper construction and application of the words referring to other minerals.

Lord Justice Lawrence Collins gave the leading judgment. Mr Justice Lindsay and Lady Justice Arden agreed. Permission to appeal was granted, but the appeal was dismissed.

1. Construction. Whether a substance is a mineral is not simply a question of fact. It is a question of construction requiring an objective assessment of the conveyance and its background. The approach in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 applied. The factual inquiry may nevertheless be sophisticated, and an appellate court should be slow to interfere with a judge who has weighed several factors and findings of fact, as illustrated by Moyna v Secretary of State for Work and Pensions [2003] UKHL 44, [2003] 1 WLR 1929.
2. Relevant pointers. Unless the instrument is clear, the court should consider the vernacular meaning at the date of the grant, the commercial background and purpose, the general state of knowledge and commercial treatment of the substance, whether it is exceptional in use, value and character, and any express working powers. The intention is objective; it is irrelevant that the parties did not actually have the substance in mind. These principles were drawn from Earl of Lonsdale v Attorney General [1982] 1 WLR 887 and the earlier authorities.
3. Exceptionality. The expressions exceptional and ordinary soil are not identical or co-terminous. Exceptionality means something special. Brickshale was ubiquitous in the area, not especially valuable and not exceptional in use, value or character. The exceptionality pointer therefore supported its exclusion. The reasoning was consistent with Waring v Foden [1932] 1 Ch 276, Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 669, and the authorities concerning ordinary clay, sandstone and soil.
4. Underground working. The restriction to underground working was a strong pointer against including brickshale. The nearby quarry and the commercial reality that brickshale in the area could be extracted only by surface working would have been known to the parties. The reservation and restriction were likely directed primarily, though not exclusively, to coal. The suggested stand-off, leaving extraction to later agreement, was fanciful in those circumstances. Waring v Foden [1932] 1 Ch 276 supported that conclusion.
5. Fireclay. The trial judge was entitled to prefer the respondents’ expert evidence. The 1920 report did not establish that the wider meaning of fireclay was the vernacular meaning in 1921. There was no basis for appellate interference. Brickshale and fireclay in the wider sense were therefore not other minerals within the reservation.

• Court of Appeal (Civil Division) granted permission to appeal on the renewed application and dismissed the appeal.
• High Court of Justice, Chancery Division determined the preliminary issues against the appellants, holding that brickshale and fireclay in the wider sense were not within the reservation, and refused permission to appeal.