Mining Rights

Mines

The original and primary meaning of a mine was an underground excavation made for the purpose of extracting or obtaining minerals. The word has been given other meanings in different contexts. It may denote a place where minerals are worked underground or are being processed on the surface.  It may mean a stratum, vein or seam of mineral.

A quarry implies surface working with no overhead roof.  In other senses, quarries may refer to certain works carried on almost exclusively underground such as for slate.

A mine is said to be open when it is in use for the purpose of the working and sale of minerals.  Whether a mine is opened is an important issue in equity in terms of the rights of limited owners historically.

The question of whether the mine is open was one of intention.  Intention is evidenced by the facts.  If it has been worked, it is deemed open even if no profits are made.  The work must be other than for a limited purpose, which is experimental or testing.

A mine ceases to be open when it ceases to be worked for a reasonable purpose.  A relatively long period of decades may be required for a mine to be deemed no longer open.

Minerals

It is a question of fact as to whether a substance is a mineral.  This may be important in the context of deeds, instruments and statutes. It will usually be a question of intention, interpreting the intention and meaning of the document.

The following have been commonly and usually held to be minerals: asphalt, bog earth, brick clay, brick earth, coal, clay, common clay, China clay, terracotta, coprolites, fireclay, free stones, flints, limestone, granite, gravel, marl, marble, peat earth, pitch, red rock, salt, sandstone, stone and sand.  In another context, certain clay, granite salt, sandstone, and stone in particular contexts may not constitute minerals.

The onus of proof that the particular substance is to be interpreted under the document in question as a mineral is on those who so contend.  It may be that the particular document expressly or impliedly defines what is or is not a mineral or mine.

Quarries

A quarry includes or may include all contiguous or connected veins or seams of coal worked as a single concern together with working and some machinery = where it is necessary for its working and the business of selling coal so worked.

A bed seam or stratum, as applied to stratified rocks, means a layer or part of a series of stratified rock.  It may refer to what was actually a deposit consisting of two or more strata of materials separated by thin layers of rock.

A vein or lode means a tabular deposit formed subsequently to the rocks enclosing it and occupying a cavity formed by a fissure consisting of rocks altered in the vicinity of the fissure.

Ownership of Mines

Mines and quarries and minerals in place are part of the land, and accordingly, the owner of the surplus is presumptively entitled to everything beneath and within it down to the centre of the earth.  This applies even where the surface is obtained by adverse possession or prescription.

At common law, mines of gold and silver belong to the Crown (the State).  By statute, petroleum in its natural state is vested in the Crown (the State).

The ownership of mines and the land may be severed from ownership of the surface.  Mine so severed, form a separate property capable of being held for the states and interests as real property.

The presumption that the mine belongs to the surface owner may be rebutted by evidence showing that the ownership has been severed by a conveyance to mines along with continuous enjoyment of the mines by other persons.

Different strata may be in different ownerships.  Proof of ownership of a mine under any parcel of land does not raise a presumption of ownership of the surface or ownership of other mines under the same parcel of land.

Ownership Scenarios

The right to enter land and take minerals may exist as a profit.  It may be created by deed, prescription, or statute.  Commonly, such rights are reserved on the grant of freehold estates or long leases.  The vesting of interest under the land purchase legislation by the Land Commission generally reserved mines and minerals to the State.

Presumptively, a mine under a highway is owned by the owners of the land adjoining the same to the midpoint of the road.  This follows from the general principle that the landowner owns the subsoil.  It does not apply to land adjoining a road or canal.

There may be statutory rights reserved. The rights may have been reserved on acquisition, e.g., for the purpose of the railway, canal etc.

Mines beneath the bed of a non-navigable river presumptively belong to the owner of the adjoining lands.  Mines under navigable rivers between the low watermark and the high watermark (the foreshore) and under the bed of the sea adjoining the land) presumptively belong to the State.  This follows from the State being successors to the Crown’s ownership of the foreshore and the bed of the sea.

Where mines, whether as a part of land or a separate asset, are held for a term of years, the right of possession of the space in which the occupied minerals were formerly situated vest in the tenant.

Acts of ownership, the exercise of mines and quarry may, in the absence of a statute to the contrary, give presumptions of ownership.  Where they are exercised for the requisite period, generally 12 years (or higher in the case of State-owned lands, the title may be acquired by adverse possession.

In particular areas, customs may apply.

Wrongful possession of a mine may be recovered against the trespasser.  The action may be for recovery of the surface and the mines beneath or the mines only, whether opened or unopened.

Rights Excpeted

If the mines and minerals are accepted on the grant of land so that the grantor has the liberty to enter and take minerals, his title is not barred by failure to exercise the right.  The right to work a mine is not lost by ceasing to work it.  However, if a trespasser abandons possession before acquiring title, time does not continue to run in his favour, even if the rightful owner does not resume possession.

A right to work minerals, if granted for a term of years, is not waived or abandoned by non-use.  The Statute of limitations may, however, apply.

When part of the land is severed and converted into goods or chattels, it becomes the property of the owner of the freehold.  The level of damages to which he is entitled against a person wrongfully taking the same is determined by principles set out by the courts of chancery.  The principle is that the proper value is what the owner has lost, which is the value of the thing that existed or extracted.

Restrain Wrongful Use

An account may be maintained in respect of minerals which have been wrongfully abstracted and removed.  The defendant must account for the value of minerals raised being the market value less just allowances.

An injunction may be obtained to restrain wrongful use or working.  The owner of minerals which have been wrongfully taken may have an action for trespass against the wrongdoer.  If he has sold the goods or minerals, the owner may take action for monies had and received.

Where a person has an exclusive right to take minerals, he may maintain an action for trespass.   An action for damages for a trespass may be taken.  In the case of a landlord, the action may be for damage to the reversion if such can be shown.

Rights in tort may be barred after 12 years in the case of proprietary rights and six years in the case of actions for damages and account.  The period commences when the action accrues. If the defendant has concealed the wrongdoing by fraud, then the commencement of action may be postponed.

Criminal proceedings may be taken against a person who has stolen minerals from a mine or damaged a mine, or removed the materials with intent to defraud.