039-NLR-NLR-V-21-SILINDAHAMY-et-al.-v.-PERIS-et-al.pdf
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Present: De Sampayo J. and Loos A.J.BILINDAJTAMY et al. v. PERIS et al.
333 and 334—D. G. Ratnapura, 2,840.
Bight of co-owner to dig for plumbago—Bight to minerals reserved in
Crown grant—Actionby mineragainstco-ownerandlessee for
■recovery of possession and damages—Jus tertii.
The Crown sold in 1892 a piece of land reserving mining rights.Out of several shares, the plaintiffs became entitled to a share, andthe fifth defendant to another. On a mining lease from severalco-owners, the plaintiffsopened apit forplumbago,andafter the
expiration – of the lease continued to work it with the tacit consentof all the co-owners.
The sixth defendant,who tooka leasefrom thefifthdefendant,
dispossessed the plaintiffs and worked the pit. The plaintiffs suedfor recovery of possession and damages.
Held, that, though the Crown had reserved mining rights, theplaintiffs were entitled to maintain the action.
The possessor of a thing may maintain, an action against thewrong-doer, though notr against the true owner.
The plaintiffs were entitled to the plumbago, though tl-ey .mayhave to account for it to the Crown.
Where a co-owner carries on mining operations on the commonland, he is entitled to appropriate to himself the whole output,less the ground share of the other co-owners.
Silva v. Fernando 1 distinguished.
^JpHE facts appear from the judgment.
Samarawiekreme (with him E. G. P. Jayatilleke), for sixthdefendant, appellant.
Drieberg (with him F. M. de Saram), for fifth defendant, appellant.
Bawa, K.C. (with him A. St. V. Jayawardene and Wijemanne), forplaintiffs, respondents.v
Cur. adv. vult.
April 11, 1919. De Sampayo J.—
These are two appeals taken by the fifth defendant and sixthdefendant, respectively, in an action arising out of a dispute to aplumbago mine on a land called kiriwelahena. The main appealis that of the sixth defendant, who has raised certain importantquestions of law. The land originally belonged to the Grown, andwas sold on a Crown grant dated June 6, 1892, which reserved- tothe Crown all right and title to the mines and minerals on the land,
‘ (1912) IS N. L. R. 499.
IMS.
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1019.
Dl SilDATOJ.
BUMahamyv. Peris
together with power of entry for discovering or working such mines,or for procuring- and carrying away any minerals in or upon theland. By devolution of title from the Grown grantees the detailsof which need not be mentioned the first and second plaintifis, whoare husband and wife, are now entitled to one-fifteenth share of theland, and fifth defendant to one-fifth share, and the first, second,third, and fourth defendants to the remainder of the land. Theland contains plumbago, and for many years several pits have beenworked thereon either by the co-owners or by lessees under them.The present disputes relates to a pit called Galpatala, the historyof which may be stated as follows. On February 5, 1898, theco-owners gave a mining lease for eight years to the first plaintiff,who opened a pit and worked it till January 24, 1903, when heassigned his interest to the third plaintiff. The original lease expiredin 1906, but the third plaintiff, with the tacit consent of the co-owners, continued to work the pit under the first plaintiff, whosewife, the second plaintiff, had- in the meantime become entitledto one-sixtieth share of the land by purchase. The third plaintiffhaving worked the pit for some time gave certain interests thereinsuccessively to two persons named D. A. Fernando and Weerakoon.These persons gave up the pit, and the third plaintiff resumed workagain and continued to mine for plumbago with the first plaintiff,who himself acquired title to another three sixtieth share of theland in 1908, The pit was a very expensive one, and its nameindicates that rocks had to be blasted and other difficult operationsperformed. By this time it had reached a depth of over 30 fathoms.The plaintiffs’ case is that, while they were thus in possession of thepit Galpatala and were digging for plumbago, the sixth defendant,who had in 1915 taken a lease from the fifth defendant, forciblyentered and ejected the plaintiffs from the pit Galpatala, and beganto dig and take out plumbago and appropriate the same. Thesixth defendant denied the alleged dispossession, and, in effect, statedthat the pit Galpatala had been abandoned by the plaintiffs, andthat he lawfully worked it himself under the lease from the fifthdefendant. The latter took the same attitude, and, further, madea claim in reconvention in respect of two other pits, which, he said,the first and second plaintiffs were working on the same land. Thefirst to fourth defendants are co-owners, and have been joined onlyfor the purpose of constituting the action, and no relief is claimedagainst them. The plaintiffs asked for possession, and claimedagainst the fifth and sixth defendants a decree for Bs. 75,000 asdamages up to the date of action, and for further damages at therate of Bs. 6,000 till restoration to possession. The District Judgegave judgment for the plaintiffs for possession and for the sum ofBs. 40,000 as mesne profits Or damages, with further damages atBs. 600 a month, and he dismissed the fifth defendant’s claim inreconvention. The fifth and sixth defendants have appealed.
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The most important question raised by the sixth defendant is-whether, in View of the reservation of mines and minerals in theCrown grant, the plaintiffs are entitled to claim damages for theentry upon the pit Galpatala and in respect of the plumbago takentherefrom. The authority cited on behalf of the appellants is thedecision of the Privy Council in Silva v. Fernando.1 It should benoted, in the first place, that the defendant in that case was astranger, and it is questionable whether the sixth defendant, who hasobtained a right to mine from the fifth defendant, a co-owner of theland, can dispute the right of the other co-owners, the plaintiffs,to do the same. Mr. Samarawickreme, however, says that thesixth defendant is in the position of a trespasser both as regardsthe plaintiffs and as regards the Crown, and is entitled to put theplaintiffs to the proof of their right. I am willing to consider thecase on that footing. In this connection it should be observed,in the next place, that the decision of the Privy Council proceededupon the basis of an admission at the Bar, on behalf of the plaintiffin that case, that the plaintiff in order to succeed must establish histitle. There is no such admission in the present case, but, on thecontrary, the plaintiffs rely on their actual possession. It is awell-known principle that the possessor of a thing may maintainan action against a wrong-doer, though not against the true owner.The nature of the possession of land is such that it involves posses-sion, not only of the surface, but also all that is contained beneaththe surface. In the present case the act of possession is still moreeffective, because the plaintiffs, having mined from the surface,had reached the deposits of plumbago, and were, therefore, in actualpossession of the plumbago. They are, I think, entitled to keepthe plumbago, though they may have to account for it to the Crown.Indeed this act of possession appears to me to be lawful even asregards the Crown, because the Crown has waived its right to minesand minerals in the case of lands alienated before 1901. The factsas regards the waiver are disclosed in the judgment of the PrivyCouncil in the above ease. With regard to the rights of actionarising from actual possession, Mr. Bawa, for the plaintiffs, hascited a number of cases, which appear to me very apposite. InLewis v. Branthwaite,2 the owner of an adjoining colliery, withoutbreaking the surface of the soil, had tunnelled into the sub-soil andtaken coal therefrom. The copyhold tenant was held to be entitledto sue the owner of the colliery, on the ground that he had possessionof the soil from the surface to the centre of the earth, though theproperty in the mines was in the lord. Keyse v. Powell 9 enun-ciated the same principle. That was the case of an ordinary lessee,and Lord Campbell said: “ Being in possession of the surface, inpoint of law he was in possession of the minerals. He had no right *
* (1831) 2B.de Ad. 437.
3 (1853) 2 EU. & Bl. 132.
1919.
Db SuoazoJ.
StUndahamu«. Paris
(1912) 15 N. L. B. 499.
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1919.
DbBaibayo
J.
SQMahamyv. Peris
to work the minerals. If he had done so, it would have beenwaste but the lessor could not have sued him in trespass; and ifstrangers had worked the minerals even without breaking the surface,(he) might have maintained trespass against them. ” Macswinneyon Mines (3rd ed., 388) summarizes the cases as follows:“ If the
injured party had the right of possession, as if he is a tenant forlife of years impeachable of waste, or a tenant from year to year,or a tenant at will, or a copyholder, he may in general maintaintrespass, or he may have an account. ” This aotion is, in effect, anaction for an account of the plumbago which has been removed,and can no longer be restored in specie. Since, for the purpose ofquestioning the right of the plaintiffs, the sixth defendant wishes todissociate himself from his lessor, the fifth defendant, and to makehimself a stranger, I think that on the principles of law to which Ihave- referred, he is liable to account to the plaintiffs for the plum-bago of which they had possession, and of which they were deprived.On the general question of the right of a bare possessor, it may bestated that as regards him jus tertii is not only no defence to theaction, but no ground of mitigation of damages. The rule that heis entitled to full value of the things as damages used to be put onthe ground that he would be liable to the true owner, but in TheWinkfield 1 the principle was established that the full value mightbe recovered although there was no liability over. Mr. Samarawick-reme vigorously contended that the plaintiffs had no possession,because, as he said, the plaintiffs had ceased to work the pit Gal-patala and had abandoned it. I do not think the evidence in thecase supports this view of the facts. Moreover, the mere ceasingto work a mine is not of itself such an act of abandonment as amountsto loss of possession. (The Low Moor Go. v. The Stanley Coal Go.2).Nor does any material difference arise from the fact that the pitGalpatala was begun by the first plaintiff as a lessee or licencee,and was subsequently continued by him as a co-owner of theland.
The fifth defendant did not raise the defence of the right of theGrown, but in appeal he joined forces with the sixth defendant andcontended that the plaintiffs could not maintain this action. Thisis a somewhat strange position for the fifth defendant to take up.Notwithstanding the right of the Crown, he himself joined the otherco-owners in giving a mining lease to the first plaintiff in 1898. andfrom time to time received his share of the plumbago, and, as statedabove, he alone gave to the sixth defendant in 1915 a similarlease, which is the immediate cause of the dispute in this action.Moreover, he received wthout question, his share of the plumbagowon from two other pits which the first plaintiff dug on the land.In any event, the general reason for rejecting the defence of jus
tertii equally applies to him.
» L. R. {1902) P. D. 42.
4 {1875) 33 L. J. 436.
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I see no reason to dissent from the finding of the District Judgeon the issue of forcible dispossession. This issue has no materialimportance, except as it bears on the question of the measure atdamages. When a co-owner digs and works a pit on common land,it is the custom in Ceylon among plumbago miners to regard thepit sis belonging to him, and concede to him all rights, as if he issole owner of the pit and the plumbago won from it. It is on thisfooting that the plaintiffs alleged an unlawful ouster by the fifthand sixth defendants. Even if this point of view is rejected, theresult, I think, is practically the same. The law allows a co-ownerto make such use of the land as it is naturally capable of, evenwithout the consent of the other co-owners. In the present casethe plaintiffs had the tacit, if not the express, consent of all theother owners. If it is plumbago land, the co-owner may dig forplumbago though, of course, he must give his co-owners theirshares of any plumbago found. If these co-owners are dissatisfied,'their proper remedy is to put an end to the common ownershipby partition. If, however, the Twining operations oontinue andplumbago is found, what is the share due to the co-owners? Idthe ordinary system of plumbago mining, which is always a riskyspeculation, the landowner gets what is called the ground share,and the miner the balance output for his risk and expenses. I donot see why any other principle should be followed in the casewhere the co-owner is himself the miner. The co-owner who doesthe mining will distribute the ground share among the co-owners,and will appropriate the balance to himself. The evidence in thiscase discloses the fact that all the parties concerned recognized andacted upon that principle. The evidence of the fifth and sixthdefendants themselves shows this, and indeed, the fifth defendantin his pleadings makes the counterclaim against the plaintiffs onthe same basis. Further, it was maintained in appeal on behalfof the fifth defendant that the first mid second plaintiffs were onlyentitled to a share of the ground share of the plumbago put outby his lessee, the sixth defendant. There thus appears to be noreal dispute as to the principle. The ground share is regulatedeither by agreement or by custom, and in the present, instance theground share appears to have been one-seventh or one-eighth ofthe gross output. If the plaintiffs had not been ejected from thepit Galpatala, they would have been able to continue to mine, andafter giving to the defendants their due share of the ground share,appropriate the rest of the plumbago to themselves. But theDistrict Judge has given judgment for the plaintiffs for much leBSthan they would have got on that basis. He has made a calculationof the probable output of plumbago, which I have no rjason toconsider erroneous, and has given judgment for the plaintiffs for asum equal to one-tenth of the value of the output. I think theamount is reasonable.
jr.
v.Pfcrb
•J>P‘0«MF«tO
v,-fieri#
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As regards the appeal of the fifth defendant, who counterclaimsfor his proportionate share of the ground share of two other pitswhich were opened and worked by the first plaintiff, the DistrictJudge has found that the fifth defendant has failed to prove thathe had not received his proper share. The evidence of the firstplaintiff that he had duly distributed the ground share has, in theopinion of the District Judge, not been rebutted by any reliableevidence on the part of the fifth defendant. I see no good reasonto disturb the decision as regards the fifth defendant's counter-claim.
In my opinion both the appeals should be dismissed, with costs.
Loos A.J.—I entirely agree.
Appeal dismissed.