ARC Aggregates Ltd v Branston Properties Ltd

On a transfer of land, mines and minerals may be retained either as a corporeal fee-simple stratum by exception, or as an incorporeal profit à prendre by reservation. The words used are not determinative: the transfer must be construed as a whole. Language describing existing physical substances below a defined level, coupled with an express exclusion of any right to work or get them, strongly indicates an exception. A right to work or take minerals is characteristic of a profit à prendre. The court may determine construction summarily where no identified factual issue could affect the result; a party seeking a trial must provide evidence showing how the proposed facts may do so.

ARC Aggregates Ltd v Branston Properties Ltd concerned two transfers of former gravel-pit land made in 1988 and 1989. The claimant alleged that the defendant’s development works encroached on mines and minerals beneath the land. The central issue was whether the transfers retained the mines and minerals as corporeal freehold strata, or merely reserved an incorporeal right. Both parties applied for summary judgment. The claimant also argued that construction required a trial on the factual matrix.

The court granted summary judgment for ARC on its claim for a declaration that it was the freehold owner of the mines and minerals, and dismissed Branston’s application for summary judgment on its counterclaim.

1. Legal character of the retained interest. Under the Law of Property Act 1925, a fee simple may exist in a separate physical stratum, whereas a profit à prendre is an incorporeal right to take something from another’s land. On a transfer, a transferor may retain the minerals by excepting them from the conveyance, or may reserve an incorporeal right.
2. Construction. The expressions “except” and “reserving” have no automatic legal effect. The court must construe the transfer as a whole. In the 1988 Transfer, sub-clause 2(a)(i) concerned rights and privileges benefiting retained land and was a reservation. Sub-clause 2(a)(ii), however, described existing physical substances below a specified level, referred to no right or retained land, and expressly excluded the right to work or get the minerals. Those features strongly indicated an exception rather than a profit à prendre.
3. The same conclusion followed for the 1989 Transfer. Its drafting more clearly separated the benefit of neighbouring land from the mines-and-minerals provision, and the restrictive covenant did not make an exception construction otiose.
4. The court rejected reliance on the legal position concerning former copyhold land, because the transfers were private contracts and there was no evidence that the parties intended to reproduce that relationship. The later 1989 Transfer was inadmissible as an aid to construing the earlier 1988 Transfer.
5. Summary judgment was appropriate. A party asserting that construction depends on disputed facts must identify evidence showing that, if established, those facts may affect the outcome. No such fact was shown to matter here. The conclusion was reached independently of the assumed agricultural use and value of the land.

First-instance decision. No appellate history is stated in the judgment.