20.3 Title silent as to minerals

A conveyance by disposition where there is no express mention of minerals will carry the minerals provided the minerals are still in the title. This is because ownership of land is presumed to be a coelo ad centrum (from the heavens to the centre of the earth). In practice it is often difficult to discover where the title to minerals lies. It has been common for centuries, especially in feu deeds, for the granter to reserve the minerals and the right to work them. Very often a mineral reservation is included in a deed even where the granter has no title to the minerals, the minerals having previously been reserved further back in the feudal chain. Similarly minerals could be lost by dint of a competing title allied to possession. Because of the difficulty in establishing where title to minerals lies, where the title deeds are silent on the subject of minerals the title sheet will also be silent.

20.3.1 Statutory exclusion of Indemnity

Where the title sheet is silent as regards minerals, the Keeper offers no guarantee that the minerals are included. A registered title which does not specify but which is habile to include the minerals (i.e. is silent as to minerals) is subject to a statutory exclusion of indemnity in terms of section 12(3)(f) of the 1979 Act, In effect it provides that a claimant has no entitlement to indemnity in respect of loss arising in respect of an interest in mines and minerals where that interest is not disclosed in the title sheet. If the surface proprietor does not possess the minerals, the possibility exists that a proprietor on a competing title which included the minerals could possess them, quite possibly without the knowledge of the surface proprietor, since minerals by their nature are usually unseen and incapable of possession in the way that surface land can be possessed. It follows that the value of a registered title habile to include minerals can only be realised through possession. The Keeper’s requirements by way of evidence of possession in the context of mineral ownership are dealt with in the following paragraph.

20.4 Application for inclusion of minerals in the title sheet

20.4.1 Evidence the Keeper will require

An application may be received for registration of title to minerals alone. Alternatively a deed submitted as part of an application for the surface land may contain an express inclusion of minerals. In both cases the Keeper will require to examine a progress of deeds that demonstrate a good prescriptive title to the minerals. In addition the Keeper will require further evidence of possession of the mineral interest for the prescriptive period of 10 years. Should either form of evidence not be forthcoming the Keeper will exclude indemnity.

20.4.2 Evidence of legal title

In the event that the applicant is unable to supply the Keeper with a sufficient progress of legal title but the applicant still wants the mineral interest reflected in the title sheet, and the applicant’s request is not contrary to the Keeper’s a non domino policy (as set out in Dispositions a non domino) then indemnity will be excluded in the proprietorship section in the following form or some variant of it:

Note: [As regards the minerals specified in the property section of this title,] indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that no prescriptive progress of legal title to minerals prior to the [disposition] by …….to ……..registered {date} has been produced to the Keeper.

20.4.3 Evidence of possession

Possession in the context of minerals usually means working the minerals or leasing them to a third party. Alternatively, the fact that a party has interdicted someone else from working the minerals may be seen as possession. Another form of evidence, rare though it may be, which will satisfy the Keeper is a court declarator of mineral ownership. Exceptionally, if the Keeper is satisfied that other forms of documentary evidence point towards demonstrable working of the minerals then a view may be taken that the possession element has been satisfied and no exclusion of indemnity note will be necessary. No evidence of possession need be produced to the Keeper when the legal title to minerals has been acquired by exercise of compulsory purchase powers or the title stems directly from the Crown. In these cases the Keeper will grant a fully indemnified title, except where the circumstances outlined in Compulsory Acquisition apply.

Experience demonstrates that the majority of applications for registration of mineral interests are unable to be supported by evidence of prescriptive or any other possession, and lack any other special quality recognised by the Keeper as justifying him in granting a fully indemnified title. In these cases exclusion of indemnity is appropriate even when a good prescriptive progress of title exists. The indemnity exclusion note in respect of the lack of possession should be included in the proprietorship section and read as follows:

Note: [As regards the minerals specified in the property section of this title,] indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979, in respect that evidence that the above-named proprietor’s legal title has been vindicated by uninterrupted and unchallenged possession for the prescriptive period has not been produced to the Keeper.

Registration officers should note that this exclusion note will require to remain on the title sheet until such time as evidence of the registered proprietor’s prescriptive possession can be produced to the Keeper.

20.5 Removal of mineral reservation clause

Not unnaturally, an applicant may not be satisfied with a land certificate bearing an exclusion of indemnity even if the exclusion only affects minerals. Very often a proprietor of surface land will have no interest in working the minerals but has acquired them merely in order to negate the effects of a possibly draconian mineral reservation clause in his title. Invariably this is the reason why the proprietor of a private dwellinghouse or the developer of a piece of land goes to the trouble of acquiring the minerals. Here, the Keeper may be able to help the applicant for registration achieve his real objective by agreeing to treat the conveyance of the mineral interest as a dealing affecting the surface land, the terms of which will allow the Keeper to remove the mineral reservation clause from the burdens section and the mineral exclusion note from the property section. The result will be a title to surface lands silent as to minerals, and thus habile to include them, albeit subject to the statutory exclusion of indemnity already referred to. Where the conveyance of minerals is given effect to in this way, it can of course be held and assigned as an unregistered title in fortification of the proprietor’s right.

The above course of action will only be possible if the following conditions apply:

• The question of minerals has arisen in the context of an application to register the surface land.

• The Keeper is satisfied that a prescriptive title to the minerals exists.

• No third party rights exist in the minerals. If the mineral reservation clause creates or appears to create rights in favour of third parties - for example, the right to dig tunnels in pursuance of mineral extraction in adjoining lands - it will be difficult for the Keeper to agree to remove the mineral reservation clause. Where any doubt exists as to whether third party rights may subsist the matter should be referred to a senior caseworker.

On some occasions, however, a deed submitted in support of an application may contain an express inclusion of minerals qualified by a phrase such as ‘so far as vested in us’ or ‘so far as we have right thereto’. In this situation the registration officer may omit the express inclusion of minerals from the title sheet without reference to a senior team leader.

20.6 Consolidation of fees (this could only be effected prior to 28 Nov. 2004)

Where minerals have been severed from the surface lands, whether by reservation or express grant, and the current registered proprietor of the surface lands acquires the minerals conterminous with the extent of his surface lands, he may seek to consolidate the two fees. This was sometimes resorted to by builders and developers as a means of getting rid of conditions which hamper the development of the surface land. Where the minerals were reserved in the original feu of the lands, their current position can be unclear. The consequences of this uncertainty are explained in the following paragraphs.

If the disposition of the superiority was drawn in the true feudal fashion, that is, it conveyed the lands without stating that it was the superiority that being conveyed, and the indication that it is superiority is gleaned from the fact that the rents and feuduties were assigned and the feu rights were excepted from warrandice, then that disposition can be held to have conveyed the minerals. This is because it disponed the granter’s whole right in the subjects under exception of the feu rights granted by him. As the minerals were reserved to the superior in the feu deeds, and it is only the rights granted in the feus which were excepted, then the disposition carried the minerals.

Conversely, if the minerals were excepted in the feu deed, and the subsequent disposition of the superiority stated in gremio that it disponed the superiority of the subjects in the feu deed, then, as the minerals were excepted from the feu deed, the inference is that they were excepted from the disposition of superiority. In other words, if the disposition of superiority actually stated in gremio that it was a disposition of superiority, the minerals had to be expressly conveyed if they were to be carried by the disposition.

There was, however, a school of thought which maintained that if the disposition of superiority contained some such phrase as ‘together with my whole right title and interest in and to . . .’ then this was sufficient to carry the minerals even without a specific reference to them. In such cases, when a builder who had acquired both the property and superiority comes to sell individual house plots, the Keeper may experience difficulties in deciding what to do about minerals in the title sheets.

The consequences of the above three paragraphs can be summed up as follows:

1. If the minerals were not carried by the disposition of superiority, then even if the two fees were consolidated, the Keeper will still show the mineral reservation in the title sheet.
2. If there is doubt as to whether the minerals had been carried, it is the Keeper’s view that it is better to include the reservation in the title sheet.
3. Even if the minerals had been carried by the disposition of superiority but no consolidation followed, if any subsequent conveyance prior to 28 Nov. 2004 of the whole or part of the subjects refered only to the dominium utile title then severe doubts must exist as to whether the conveyance carried the minerals or not.

Because of these doubts and difficulties, in any case where the documents and evidence submitted reveal that the minerals were reserved in a feu and the superiority had, prior to 28 Nov. 2004, subsequently come into the possession of the proprietor of the dominium utile, the question of whether the minerals should be shown as reserved or not must be referred to a senior caseworker. 

Since 28 November 2004 a disposition of superiority is invalid and to achieve the same result as above a conveyance of the minerals as previously discussed would be required.

20.7 Compulsory acquisition of land

In addition to what was stated in Evidence of possession a conveyance in terms of the Land Clauses Consolidation (Scotland) Act 1845 does not carry minerals unless they are expressly included. This is true also of any of the deeds which may be used as an alternative to a schedule conveyance in a compulsory acquisition, namely a notarial instrument, notice of title or general vesting declaration.

20.8 Reservation of minerals

A reservation of minerals is an exception from the subjects in the title sheet rather than a burden on them. However, the terms of a minerals reservation clause may not only except the minerals but also create burdens on the minerals title which are rights in favour of the owners of the surface subjects. For example, restrictions on how the minerals are worked, compensation for damage to the surface, obligations of support etc. are rights which pertain to the owner of the surface land. Conversely, the minerals reservation clause may also create burdens on the surface subjects which are rights in favour of the mineral owner: for example, rights to sink shafts, erect pit head gear, etc. For practical purposes therefore, only a brief reference to the mineral reservation is made in the property section and the full text of the mineral reservation clause is set out in the burdens section. The mineral reservation is entered in the property section by means of a note along the lines of the following:

Note: The minerals are excepted. The conditions under which the minerals are held are set out in the [name of deed] in entry [number] of the burdens section.

The note is adapted as necessary to cater for circumstances of the kind narrated in the following paragraphs.

If the documents and evidence reveal that there is more than one mineral reservation (for example, in the historical feudal chain the over-superior and the immediate superior may both have reserved the minerals in the respective feus), then both reservations are inserted in the title sheet and the note is adapted to show both deeds containing the reservations. The basis for this is that it is theoretically possible for the second party who reserved the minerals to make an argument that their reservation is the basis for title on which prescription can operate.

Where the mineral reservation applies only to part of the subjects in the title sheet, that part is separately referenced on the title plan and the note is adapted accordingly. For example:

Note: The minerals under the part tinted [blue] on the title plan are excepted. The conditions under which these minerals are held ........ etc.

Occasionally a mineral reservation relates only to certain specified minerals, not to all minerals under the surface. In such a case the note will refer only to those specified minerals. For example:

Note: The fireclay between the millstone grit and blue clay layers under the part tinted [yellow] on the title plan is excepted. The conditions under which the fireclay is held ...... etc.

There may be cases where the minerals are excepted but the deed does not narrate any conditions under which they are held. Here all the Keeper can do is show that the minerals are excepted. In this case a note is inserted in the property section that states simply ‘The minerals are excepted’.

20.9 Coal

If minerals are something of a speciality, it seems fair to say that coal is a speciality within a speciality. After 1 July 1942, when coal and allied minerals vested in the Coal Commission (the predecessor of the National Coal Board et al) under the Coal Act 1938, conveyancers were able to proceed on the basis that, whatever other minerals might pass with the titles to the land, coal was virtually always excluded from a title by virtue of statute. That was the case even in face of the terms of a pre-Coal Act title which included coal either specifically or implicitly. As regards a registered title, the interest in coal of British Coal and its predecessors was (is) an overriding interest even if the terms of the title derived from pre-Coal Act conveyancing and purported to include coal. That straightforward scenario has been changed by the Coal Industry Act 1994 (the 1994 Act) under which coal will progressively return to private ownership.

The entire interest of the British Coal Corporation in unworked coal and coal mines vested in the Coal Authority on the restructuring date of 31 October 1994. So long as coal remains vested in the Authority it creates no problem for the Land Register because it is still classed as an overriding interest. Section 7(3) of the 1994 Act operates to vest the Coal Authority in the Corporation’s interests in unworked coal and coal mines, ‘without further assurance’. Happily, paragraph 20 of schedule 9 to the 1994 Act adds interests vesting by virtue of section 7(3) to the definition of overriding interest in section 28(1) of the 1979 Act.

The progressive return of coal to private ownership carries considerable implications for land registration. The most obvious result will be registration in the Land Register, for the first time, of unworked coal as a separate interest in land, and of long leases of coal. That is because the purchaser of a coal interest from the Coal Authority will require to register title in order to complete a real right; a lessee under a long lease will be under the same compulsion. Even a re-acquisition of the coal interest by the Authority will induce registration, since the coal will have ceased to be an overriding interest upon its original alienation by the Authority.

This creates potential problems with existing registered titles which purport to be to the whole minerals, and with titles which specifically include the whole minerals along with the surface land but do not exclude coal from those minerals. As time goes by, the traditional assumption that whoever owns the coal it is not the private surface owner will become increasingly untenable. It will become progressively more difficult for an inquirer to learn whether the reason why coal is included in the property description in a title sheet is that the terms of the title date from pre-nationalisation days, or because title to coal has been acquired from the Coal Authority. In the former event, the title insofar as it relates to coal is (and will remain) ineffective to the extent that the 1994 Act provides that no one shall be able to acquire an interest or right adverse to the title of the British Coal Corporation or the Coal Authority by virtue of prescription. A purchaser from either body is not, however, protected by that provision, and neither is the Keeper.

In order to ensure that the Land Register does not mislead anyone or create a potential competition in title, the Keeper will add coal interest exclusion notes to the property sections of all title sheets when the following three criteria are met:

1. which are either created or updated with effect from 31 October 1994 or after;
2. which either relate to minerals, or which specifically include minerals in terms which allow the conclusion to be drawn that coal is or may be included; and
3. there has been no grant by the Coal Authority to justify that interpretation.

The exclusion note is in the following terms or as near to them as is appropriate in individual circumstances.

Note: Notwithstanding any other terms of this Title, no interest in coal or allied minerals is included in the subjects in this Title.

20.10 National Roads Directorate - Mining Code

In 1998, agreement was reached between the Secretary of State for Scotland and the Keeper with regard to the inclusion of a reference to what is known as ‘the Mining Code’ in the property section of land certificates relating to land acquired on behalf of Transport Scotland (formerly the National Roads Directorate). This Agency is responsible for inter alia the development, construction and maintenance of the trunk road network in Scotland.

The Code itself is contained in the Lands Clauses Acts (including the Land Clauses Consolidation (Scotland) Act 1845) and sections 6 and 70 and sections 71 to 78 of the Railway Clauses Consolidation (Scotland) Act 1845. That legislation regulates the working of minerals under land acquired using statutory powers and makes provision for compensating mineral proprietors for minerals left unworked. The scheme has been adopted into many of the statutes (the ‘enabling’ (or ‘special’) Acts) providing for the compulsory acquisition of land by public authorities.

Where the writs submitted with an application for registration contain no reference to such an enabling Act incorporating the provisions comprising the code, any rights the landowner may have in the minerals are included in the sale. It is, however, more useful to find that reference is made to appropriate enabling legislation. For example, the special Act for present purposes is the Roads (Scotland) Act 1984 (in particular, section 110(5)). A reference to the special Act has the effect of applying the code to the conveyancing transaction. The statutory result is that the acquiring authority does not take the minerals and at the same time avoids compensating the owner for their loss.

Between 1998 and 2000, the Secretary of State for Scotland acquired land on behalf of the National Roads Directorate. Post-devolution, acquisition is carried out in the name of the Scottish Ministers. There are two methods. The first is by a general vesting declaration or statutory conveyance following on from a compulsory purchase order referring to the 1984 Act (thus incorporating the provisions of the code). Alternatively, a statutory conveyance relating to an acquisition by agreement, and which applies the code in terms of the 1984 Act, may be drawn up.

At present, land certificates issued to the Scottish Ministers do not reveal when the Mining Code has been invoked. It has therefore been agreed that the Keeper will, if specifically requested to do so at the time of an application giving effect to an acquisition by the Scottish Ministers using statutory powers under the 1984 Act, append to the property section of appropriate land certificates, a note to the effect that the minerals are not included in the title.

This instruction applies only to those cases in which the application for registration is accompanied by the necessary covering letter from the Scottish Government Legal Directorate (SGLD) or Transport Scotland. Samples of the style of letter, which include the note desired in each case, are shown as follows for reference. It should be noted that the onus of ensuring that the proper letter accompanies appropriate applications will rest with the applicant.

"I enclose herewith an application to register a Statutory Conveyance by …… in favour of the Scottish Ministers.

Following discussions between Solicitor’s Office and Mr Ian Davis, your Head of Legal Services, it has been agreed that the Land Certificate which will be issued in respect of this application will contain a reference to the Mining Code and the purpose of this letter is to serve as a reminder that the following note should be inserted in the Property Section:-

‘NOTE: the minerals are excluded from the subjects, but this is without prejudice to the operation of section 70 of the Railway Clauses Consolidation (Scotland) Act 1845, and sections 71 to 78 of that Act (as originally enacted and not as amended for certain purposes by section 15 of the Mines (Working Facilities and Support) Act 1923), as applied by section 110(5) of the Roads (Scotland) Act 1984’.

I look forward to receiving the Land Certificate in due course."

"I enclose herewith an application to register a … … in favour of the Scottish Ministers.

Following discussions between Solicitor’s Office and Mr Ian Davis, your Head of Legal Services, it has been agreed that the Land Certificate which will be issued in respect of this application will contain a reference to the Mining Code and the purpose of this letter is to serve as a reminder that the following note should be inserted in the Property Section:-

‘NOTE: The minerals are excluded from the subjects, but this is without reference to the operation of section 70 of the Railway Clauses (Scotland) Act 1845, and sections 71 to 78 of that Act (as originally enacted and not as amended for certain purposes by section 15 of the Mines (Working Facilities and Support) Act 1923, with any references therein to the company being construed as references to the Scottish Ministers and references to the railway or works being construed as references to the subjects in this Title and any building or works constructed or to be constructed thereon.’

I look forward to receiving the Land Certificate in due course."

It is not proposed this procedure will apply retrospectively; and there is otherwise no change to existing Agency instructions for dealing with cases involving minerals.

20.11 Minerals under Coltness Estate

By an unrecorded lease dated 26 and 29 August 1914, James Hamilton Houldsworth of Coltness let to the Coltness Iron Company Limited, the whole coal, fireclay, ironstone, shale and other minerals (but excluding freestone) in and under the lands and estate of Coltness in the Parishes of Cambusnethan and Shotts (under certain exceptions).

The lease was still subsisting at 1 January 1939. Accordingly, the other minerals that were let, along with the coal vested in the Coal Commission on that date, under section 3(4) of the Coal Act 1938 are now vest in consequence in British Coal. Since the minerals have vest as stated, the lease itself is now spent.

Despite the vesting of the minerals in the Coal Commission and in British Coal, many deeds conveying parts of the Coltness estate contain a reservation of minerals clause in terms that are incompatible with that vesting.

Where the progress of title contains a reservation of minerals to the proprietors of Coltness Estate and reference is also made to that unrecorded minerals lease mentioned above, or where the plans settler advises that subjects fall within the area affected by that lease, legal settlers should consider the extent to which the wording of the reservation is appropriate, all minerals except freestone having ceased to belong to the estate proprietors. If the minerals reserved to the estate proprietors included ‘freestone’, which is defined as a fine-grained sandstone or limestone, then the reservation should be entered in the burdens section but the following note should be added:

Note: The whole fireclay, ironstone, shale and other minerals (excluding freestone) under the subjects in this Title vested along with the coal in the Coal Commission on 1 January 1939 by virtue of section 3(4) of the Coal Act 1938.

The normal ‘exception’ notes for minerals as stated in Reservation of minerals, should continue to be used in the property section. If, on the other hand, freestone was excluded from the minerals reserved to the estate proprietors, then the reservation of minerals should be omitted from the burdens section. In such a case, however, a note should be made in the property section that the minerals are excepted. The following style of note would be appropriate:

Note: The fireclay, ironstone, shale and other minerals (other than freestone) are excepted, having vested along with the coal in the Coal Commission on 1 Jan. 1939 by virtue of section 3(4) of the Coal Act 1938.

A copy of the unrecorded minerals lease is held by Legal Services within file T/171.