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Present: Lord Macnaghten, Lord Mersey, and Lord Moulton.
SILVA ». FERNANDO at al.
D. C. KegaUa, 2,359.
Crown grant—Reservation of right to mines, minerals, Ao,—Action bygrantee for value of plumbago unlawfully removed by defendant—
Waiver of right to minerals by Croton after institution of action—Retrospective effect.
When the Crown conveyed land to the plaintiff reserving toitself the right and title to the mines, minerals, &o., in or upon tilesaid land, together, with full power of entry for the same, and whereafter the institution of an action by the plaintiff against the defend-ant for the valui of the plumbago wrongfully removed from theland the Crown by letter waived its rights to such plumbago—
Held, that no retrospective effect can be given to the letter soos to vest in the plaintiff a title at the commencement of the action.
The rights of the parties to an action have to be ascertained asat the commencement of the action.
HE facts are set out- in the judgment reported in 11 N. L. R. atpage 375.
November 29, 1912. Delivered by Lord Mersby:—
This was an appeal by the defendants from three judgments ofthe Supreme Court of the Island of Ceylon affirming the judgmentsof the District Court of Kegalla in favour of the plaintiff.
The claim in the action was for an account of plumbago alleged tohave been taken by the defendants from the plaintiff’s land and forother consequent relief. It was admitted at the bar that such anaction would not lie unless it could be established that the plaintiffwas entitled to possession of the minerals, and that the onus wasupon the plaintiff to make out his title.
The only title which the plaintiff was able to substantiate was atitle based upon a Crown grant of January 20, 1882. This deed,after granting the land itself, proceeded as follows: “ And we dohereby also save and reserve to us, our heirs, and successors, allright and title to the mines, minerals, gold, silver, copper, iron,tin, lead, and other metals, and the ores thereof in or upon the saidlands, together with full power of entry for the same respectively.”
The plumbago alleged to have been removed by the defendants37-
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undoubtedly came within the words of this reservation, and accord-ing to TCnglinh law the right to it remained in the Grown and did notpass to the plaintiff. This objection was taken at the trial by thedefendants, and in their Lordships’ opinion it is fatal to the plaintiff’sclaim.
Apparently the plaintiff had attempted after action brought toobtain from the Crown a title to the minerals, and during the hearingof the appeal in the Supreme Court two letters were produced, onedated October 2, 1907, from the Assistant Government Agent atKegalla, and the other dated December 2, 1907, from the ColonialSecretary. These letters contain a statement to the effect that theCrown " lays no claim to plumbago found in lands sold by it priorto 1901, anything in the wording of the Crown grant to the contrarynotwithstanding,” and the learned Judges appear to have regardedthis statement as curing the infirmity in the plaintiff’s title. TheirLordships desire to express no opinion as to the present value ofthese letters, but it is clear that no retrospective effect can be givento them so as to vest in the plaintiff a title at the commencement ofthis action. That is the point of time at which the rights of theparties are to be ascertained.
An attempt was made to argue before their Lordships that accord-ing to Roman-Dutch law the title to the minerals went with thesurface of the – land, notwithstanding the reservation contained inthe grant. The point was not taken in the Court below, nor wasany authority cited for it here. It need h&rdly be- said that in anysystem of law plain and unmistakable authority would be requiredto show that when a deed purports to reserve rights, its legal effectis nevertheless to pass those rights away.
Their Lordships are of opinion that the appeal ought to beallowed and judgment entered for the appellants, and they willhumbly advise His Majesty accordingly. The respondent must paythe costs here and below.
SILVA v. FERNANDO et al