The court construes the meaning of an exception and reservation in transfers relating to mines and minerals.
The court construes the meaning of an exception and reservation in transfers relating to mines and minerals.
A transfer of part of a development site in 1988 provided that there was:
“EXCEPT and RESERVING to the Transferor ….All mines minerals and mineral substances lying beneath the surface of the Red Land [the land transferred] at a depth below the lowest level of past excavation carried out by the Transferor and its predecessors in title but without the right to work or get the said
minerals or mineral substances.”
A transfer in 1989 of the remainder of the development site contained similar provisions (by the same parties).
The transferor (ARC) argued that development work carried out on the land by the transferee’s successor in title (BP) had encroached upon the mines and minerals of which it remained the freehold owner. It sought an injunction preventing BP from encroaching on the mines and minerals, excavating them or working or carrying them off.
Had ARC excepted to itself in the transfers ownership of the mines and minerals (in which case any encroachment by BP would constitute a trespass) or had ARC merely reserved an incorporeal right in the mines and minerals by way of a profit à prendre (in which case ownership of the mines and minerals would have passed to BP and no encroachment would have occurred).
Ownership of the mines and minerals had been excepted altogether from the transfers. The exclusion in the transfers of the right to work the mines and minerals indicated that the parties did not intend to reserve for ARC a profit à prendre. A profit is a right to take something from someone else’s land and the transfers expressly prohibited ARC from doing the very thing that a profit would have permitted it to do.
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