1876 successors the whole coal, stone quarries, and all other metals and minerals within H. L. (Sc.) the said three acres of the lands hereby disposed, with power to search for, work, and carry away the same, they always paying to the said James Blair and his foresaids all damages." Undoubtedly under that grant the whole of the land under the surface, all the coals, and all the metals and minerals, were reserved to the grantor, and it gave him a right of course as upon his own property to make any way for any coals or other minerals that he might have in any other part of his lands. But in this case he could not use that power, because there were barriers on either side which prevented access to that underground by reason of the grants of 1825 and 1857. My Lords, the Judges have been unanimous on this subject, and are of opinion that Mr. Ramsay had no power whatever to use the underground of the lands reserved for the purpose of carrying away coals or minerals from any other lands which were not granted. I cannot help observing that I think Lord Ormidale, in giving judgment in this case, has stated that which is not perfectly correct, because he says that the reserved right to work and carry away the coal was not of the nature of a proprietary right, but rather of the nature of a "privilege, servitude, or easement." Now, it appears to me, that being upon a grant or reservation of minerals, prima facie it must be presumed that the minerals are to be enjoyed, and therefore that a power to get them must also be granted, or reserved, as a necessary incident. As was said by Lord Wensleydale in the case of Rowbotham v. Wilson (1): “It is is one of the cases put by Sheppard's Touchstone in illustration of the maxim, Quando aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potuit,' that by a grant of mines is granted the power to dig them." This power to dig would of course be futile unless it involved the right of bringing to the surface. A necessary incident to a grant cannot therefore, in my opinion, be styled a "privilege, servitude, or easement." 6 I think the matter is perfectly clear, and I move your Lordships that the interlocutor of the Court of Session be affirmed. (1) 8 H. L. C. 360. RAMSAY v. BLAIR. H. L. (Sc.) LORD HATHERLEY: 1876 RAMSAY v. BLAIR. My Lords, I am entirely of the same opinion. In the case of the Duke of Hamilton v. Graham (1) it was clearly pointed out what the exact right of a proprietor was in respect of a property excepted from a demise; and as to which therefore all the original rights of the demising proprietor remained, together with all the incidents to that property necessary to its working and enjoyment, that which the owner has reserved to himself being as much his as other parts of his land of which he has made no demise whatever. In the Duke of Hamilton's case it did not appear from the evidence that he was exceeding that right; it did not appear that he was using for any purpose whatsoever anything but that portion of the mineral property which he had actually reserved, and over which he had entire and complete dominium; and, therefore, it was held that he was not transgressing his own grant or departing in any way from it. But as respects the power of working, whether incidental to the reservation of the property, or expressly specified in the instrument, no right of property is attached to that—it is simply a right of availing yourself of that property which you have reserved to yourself in the lands in question. Now the right which has been reserved in this case is only a right to the coals under the lands which have been parted with; that is to say, a right to the portion of the coal situated under the surface demised to the Respondent; and nothing can be done beyond the purpose of working the coal under the Respondent's lands and no other coal. That really seems to me, my Lords, the simple principle upon which the Court has proceeded; and as to the question of interpretation, I do not see how we can give to the words "coal and coal-heughs" (whatever coal-heughs may mean) any interpretation going such a length that it would amount to a reservation of all the wastes between the different seams of coal in these lands. As regards the intervening piece of land demised by the grant of 1827, the reservation is more extensive. The reservation there is of "the whole coal, stone quarries, and all other metals and minerals within the" lands demised," with power to search for, (1) Law Rep. 2 H. L., Sc. & Div. App. Ca. P. 166. 1876 RAMSAY v. work, and carry away the same." If those who advised Mr. Ramsay H. L. (Sc.) with regard to the granting of his leases, had happily thought of drawing the other two leases in the same form, it is possible that he might have found himself in a more favourable position; but as things stand I have no hesitation in coming to the conclusion that the Respondent is right; and that the appeal ought to be dismissed. LORD SELBORNE : My Lords, the question seems to me to be a very simple one, both in fact and in law. The engineer, Mr. Simpson, finds in the report, which is the only evidence as to the facts, that the level cross-cut which he speaks of by the word "mine” “runs under the Pursuer's lands partly in the Cherry coal waste and Splint coal waste, and partly in other strata," and that the strata through which the mine passes other than the coal consist chiefly of shale and sandstone. The interlocutors under appeal have recognised the right of the Appellants to carry through the coal and the coal wastes whatever he is able to carry through them without any interference on the part of the Pursuer, but have denied him that right as to the other strata, stated here to consist chiefly of shale and sandstone. The only possible question that I can see is, whether by the grants of the two feus of 1825 and 1851 those other strata of shale and sandstone passed in fee to the feuar, who was the Pursuer in the action, or were reserved and excepted in favour of the Appellant. Looking at the terms of the grants I can see no ground whatever for raising so much as a doubt that those other strata of shale and of sandstone passed to the feuar, and were not reserved or excepted in favour of the Appellants. In the first grant the only thing excepted is whatever is properly described by the words "coals and coal-heughs." The expression "coal-heughs" is interpreted to mean coal pits. As there were no open pits at that time under this land, I take that as equivalent to coal mines; but coals and coal mines mean, I apprehend, when unopened mines are spoken of, nothing more nor less than the veins or seams of coal underlying the surface. Whatever he can do within the limits of those veins or seams, whether before or after their exhaustion by work BLAIR. 1876 H. L (Sc.) ing, is still permitted to him by these interlocutors, and the question arises solely as to the other strata, which are neither coals nor coal mines. With respect to the third grant, there is even less apparently upon which the argument can be founded than in the first, because the words "coal-heughs" are not there, but only "the coal." RAMSAY v. BLAIR. My Lords, I must take the liberty of saying that I think Lord Ormidale was not so far wrong in the language which he used. No doubt the right to work coal which is reserved under land otherwise granted is a right connected with property in the person who makes the reservation in his own favour, and not like an easement in gross, something independent of, something unconnected with the reserved property. Still, so far as it is a right to be exercised not within the solum which is reserved, but over and through the solum which is granted, I cannot but think that Lord Ormidale was justified in describing it by the words "privilege, servitude, or easement." Interlocutor appealed from affirmed, and appeal dismissed with costs. Agents for the Appellants: Holmes, Anton, Greig, & White. ON APPEAL FROM THE COURT OF APPEAL, NEW ZEALAND. Southland Waste Lands Act, 1865-Statutory Contract. The Appellant, under sect. 12 of the Southland Waste Lands Act of 1865, on the 7th of July, 1873, caused his name to be entered in the application book mentioned therein as a person desirous to make an application to the Board for a grant of certain Crown lands. At that date the price of such lands was £1 an acre; but on the 9th of the same July the price thereof was raised to £3 an acre, the applicant receiving immediate notice thereof. On the 10th of July the Appellant's application was presented to the Board, which then determined that he was entitled to purchase the land, no price being specified either in the application or by the Board. Upon a rule nisi for a mandamus to the Receiver of Land Revenue to receive payment from the Appellant at the rate of £1 per acre for the said lands :— Held, that the grant of the application must be taken to have been at the price ruling on the 10th of July, namely, at £3 an acre, and not at the price ruling at the date of Appellant entering his name in the application book. THIS * Present:-SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, and SIR ROBERT P. COLLIER. VOL. I. 3 3 B |