McLean Estates Ltd v Earl of Aylesford & Ors

“Mines and minerals” in a reservation is a context-dependent expression. The court must construe the conveyance objectively, considering its language, the vernacular meaning at the date of the grant, the commercial background and the consequences of the proposed construction. Ordinary soil or rock forming the substance of the district will not readily fall within the reservation, particularly where including it would effectively destroy the utility of the grant. Clear words are required before a reservation is construed as permitting destruction of the surface. A power to work and carry away minerals, coupled with compensation for subsidence, points towards underground workings and does not ordinarily confer implied rights to manage a resulting void.

The claimant owned approximately 100 acres formerly known as Pasture Farm. The original 1922 conveyance had been destroyed, but its terms were accurately reproduced in a 1936 conveyance. The conveyance excepted and reserved manorial rights and all mines and minerals in or under the land, with powers to win, work, carry away and dispose of them, and to let down the surface subject to compensation for damage to buildings.

The defendants claimed that Mercia Mudstone, known in 1922 as Keuper Marl, was within the reservation. The court had to determine whether it was a mineral and, if so, whether the reservation authorised surface or underground working, ownership of the resulting void, and access and filling rights.

1. Construction of the reservation. The expression “mines and minerals” had to be construed objectively in the context of the 1922 conveyance. The court considered the language of the instrument, the contemporary vernacular of the mining, commercial and landowning communities, the commercial purpose of the transaction, the nature and value of the substance, and the express working powers.
2. Keuper Marl excluded. The evidence did not establish a clear vernacular meaning in 1922 which included ordinary clay. Keuper Marl formed the soil or rock of the district and underlay substantially the whole farm. Including it would permit the defendants to remove the substance on which the land depended, effectively swallowing up the grant and rendering it useless. Its potential value and the proximity of a brickworks and road were insufficient to overcome those considerations.
3. Working powers and surface destruction. The powers to win, work, carry away and dispose of minerals did not naturally extend to continuing rights over a void after extraction. The power to let down the surface, with compensation for damage to buildings, contemplated subsidence from underground workings, not the destruction of the surface by quarrying. An exception intended to authorise destruction of the grantee’s land required the clearest words. Those words were absent.
4. The court therefore held that Keuper Marl present in 1922, and remaining today, was not within the exception and reservation. It was accepted that the resulting void belonged to the claimant, so the further questions concerning working, filling and access did not arise. An appropriate declaration was to be made.