Mines and minerals are excluded from my property – should I “mined”?

A common law presumption is that the landowner owns everything above and beneath their land, and they would be entitled to do as they please with any mines and minerals below the surface of the land. However, this isn’t always the case. In some cases, the mines and minerals beneath the land are excluded from the title of the properly, so they are owned by another.

So, what does this mean in practice, and should you be concerned?

What are “mines and minerals”?

The term ‘mines and minerals’ is rarely defined with precision in property deeds. The Land Registration Act 2002 (Section 132(1)) offers a broad definition, including “any strata or seam of minerals or substances in or under any land, and powers of working and getting any such minerals or substances.” But this only adds to the ambiguity.

The courts have generally accepted that:

• A “mine” refers to the right to extract minerals and the cavities left behind
• “Minerals” is more subjective, shaped by case law and local context

In Coleman & Anor v Ibstock Brick Ltd [2008], the court clarified that whether a substance is a “mineral” depends on its commercial value, rarity, and the ordinary meaning of the term. Predictably, coal, oil, gold, silver and natural gas usually qualify. But other materials like clay, sand, or limestone may or may not be included depending on location and usage.

What counts as a mineral in property law?

The meaning of ‘minerals’ is slightly more abstract as aside from certain statutory definitions, case law indicates that what is considered a mineral for the purposes of exclusion from a title register is rather subjective and can in fact differ depending on location.

Legal tests and case law: Coleman and another vs Ibstock Brick Ltd (2008)

To provide a level of clarity the court set out a test in Coleman and another v Ibstock Brick Ltd [2008], notably involving consideration of the everyday meaning of the words ‘mines’ and ‘minerals’ in the context of their novelty and commercial value. Whilst some substances such as most coal deposits, oil, natural gas, gold and silver are excluded due to their value, determining the definition of mines and minerals more broadly can be tricky.

To add to the lack of clarity around mines and minerals, further case law has suggested that even if the title register explicitly refers to the specific mines and minerals as being excluded, this is not always an accurate depiction. This means that it is always worth seeking legal guidance so that the appropriate searches and title investigations can be carried out.

To add to the lack of clarity around mines and minerals, further case law has suggested that even if the title register explicitly refers to the specific mines and minerals as being excluded, this is not always an accurate depiction. This means that it is always worth seeking legal guidance so that the appropriate searches and title investigations can be carried out.

Do mineral owners have free rein?

The owner of the excluded mines and minerals is entitled to the substances themselves as well as the ability to extract them, regardless of whether this is explicitly indicated on the title register. However, these rights are supposedly limited by the requirement to exercise the rights in a way that does not hinder your rights as the landowner. It may also be the case that compensation be payable by the owner of the mines and minerals for any damage caused by their extraction.

As the mines and minerals are owned by another, as landowner, you are at risk of committing actionable trespass if you interfere with the mines and minerals, which would potentially lead to a claim in damages made against you, which may be a substantial amount. Such an interference may be as seemingly minor as laying a pipe beneath the surface of your land, so it is important to be aware of the burden of such rights and the associated risks to you.

Of course, there are various scenarios where the exclusion of mines and minerals from your title has very little impact on your daily use of your land, such as the depth of the mines and minerals or the owner being unlikely to exercise their rights. However, given that there are potential implications to the interference of excluded mines and minerals, it is always worth seeking advice from a solicitor to gain clarity on what the exclusion means and to ascertain whether such exclusion is likely to impact you and your intended use of the land.

It is also possible to obtain indemnity insurance to limit the risks posed to you as the landowner by an exclusion of mines and minerals, which can be an effective measure provided that the cover provided is sufficient and that the owner is not contacted beforehand.

How we can help

If you require any assistance with anything mentioned in this article please get in touch with the real estate team.