United Kingdom House of Lords Decisions

Lord Macnaghten—It must, I think, be taken as settled beyond the possibility of doubt or question that the expression “mines of coal, ironstone, slate, or other minerals,” which occurs in section 77 of the Railways Clauses Consolidation Act 1845 is equivalent to the expression “mines and minerals” in common use with conveyancers, and that “such mines,” or, in other words, all mines and minerals, not expressly purchased by a railway company which purchases lands within or under which minerals may be found, may, in case the company has not agreed to pay compensation, be worked by the owner, lessee, or occupier thereof, complying with the statutory provisions applicable to the case, even though such working may interfere with the use of the railway and absolutely destroy the surface. The only condition to which the working is made subject is that it must “be done in a manner proper and necessary for the beneficial working” of the mines, “and according to the usual manner of working such mines in the district where the same are situate.” Such being the law as explained in this House, the only question open on this appeal is a question of fact. It is not disputed that adjacent to and within the lands which the Great Western Railway Company or their predecessors in title purchased from Lord Clifden's predecessor in title there are deposits of a substance known as china clay. China clay is of considerable value commercially. It is common ground that the usual manner of getting it in the district is by open working, which is destructive of the surface, and it is conceded that that manner of working is proper and necessary for the beneficial working of china clay. The only question for consideration appears to be this—Is china clay a mineral? On this point a large body of evidence was adduced at the trial, which occupied eight days, before Eve, J. The learned Judge reviewed the evidence with great care and came to the conclusion that china clay was not part of the ordinary composition of the soil in the district; its presence was rare and exceptional. He held on the evidence, and held, I think, rightly, that it was a mineral, and therefore, in accordance with the provisions of the Act, excepted from the lands conveyed to the Railway Company. The learned Judges of the Court of Appeal discussed the evidence at some length and came to the same conclusion. It would serve no useful purpose to go through the evidence again. It is enough to say that having listened attentively to the able arguments of the learned counsel for the appellants, and to such portions of the evidence as were read to the House, I am satisfied that the decision of Eve, J., affirmed by the Court of Appeal, is correct, and that this appeal must be dismissed, with costs.

The Lord Chancellor (Loreburn), and Lords James of Hereford, Atkinson, Collins, and Shaw concurred.