Property – Personal Privilege – Conveyance – Reservation in Conveyance of ‘Liberty of Working’ Minerals
When a proprietor dispones lands, reserving to himself the ‘liberty of working the coal and other minerals’ therein, he is to be understood, not as reserving a mere personal privilege of working minerals, but as reserving the property of the coal and other minerals.
By an excambion a proprietor conveyed lands which contained minerals to a neighbouring proprietor in exchange for others, reserving to himself and his heirs and successors in the lands obtained in exchange, ‘if conveyed with that privilege,’ the ‘liberty of working’ coal and other minerals in the lands he conveyed, under the declaration that these must not be worked from the surface but from other lands which might belong to him or them. Thereafter he sold the lands obtained in exchange without mention of the ‘privilege.’ In a question between his heir and the heir of the proprietor with whom he had made the excambion, held ( aff. judgment of Second Division) that the reserved right of working minerals was a reservation of the property therein, and not of a mere privilege of the nature of a servitude which might be lost non utendo, or which had fallen by the conveyance of the lands without mention of the ‘privilege.’
Judges:
Lord Chancellor, Lords Blackburn, Watson, and Fitzgerald
Citations:
[1885] UKHL 737, 22 SLR 737
Links:
Jurisdiction:
England and Wales
Land
Updated: 06 July 2022; Ref: scu.637753