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MINES, MINERALS, AND QUARRIES.
THE LAW
RELATING TO
MINES, MINEEALS, & QUABEIES
GREAT BRITAIN AND IRELAND;
A SUMMARY OF THE LAWS OF FOREIGN STATES,
AND
PRACTICAL DIRECTIONS FOR OBTAINING GOVERNMENT GRANTS
TO WORK FOREIGN MINES.
ARUNDEL ROGERS, ESQ.
OF THE INNER TEMPLE, BARUISTER-AT-LAW.
LONDON :
V. & K. STEVENS, SONS, AND HAYNES,
26, BELL YARD, LINCOLN'S INN.
1864.
T
CONTENTS.
FAQS
TABLE OP AUTHORITIES, STATUTES, AND CASES, CITED . . xxi
ADDENDA ET CORRIGENDA ..... xliii
PART I.
CHAPTER I.
The Value of Mines in a Commercial point of view. Importance
of Mining Law to all classes. Explanatory observations show-
ing the nature and extent of the several topics discussed in this
volume. Advances to Mines and Collieries out of the Consoli-
dated Fund. Income and Property-Tax. Indefeasible Title
25 & 26 Vic. c. 53.
Mineral Statistics. Gold. Silver. Coal waste and exhaustion of
Coal-beds. Copper. Iron. Lead. Tin. Earthy and other
Minerals ....
PART II.
CHAPTER II.
THE ROMAN LAW.
The Civil Law in different States, and under Tiberius, Gratian, Va-
lentinian, Theodosius Maximus, and other Emperors. The Civil
Law the Basis of European Laws. Theory of the Law in the
Middle Ages, and subsequent Periods. Practical Adjustment of
the Rights of the State and Private Rights 17
V1 CONTENTS.
PART III.
CHAPTER III.
THE LAW RELATING TO MINES, MINERALS, AND QUARRIES
IN FOREIGN STATES.
FRANCE. PAGE
Prerogative of the State Differences of Opinion Rights of the
State and Proprietor of the Soil defined Government Grants
Mines and Quarries Union of Several Grants Grants, whe-
ther Real or Personal Property Code Napoleon Legal Deci-
sionsLaws of 1791, 1810, 1838, 1840, 1842, 1852, 1860
International Treaty, 1862, respecting Companies . . 21
BELGIUM.
Rights of the Sovereign of the Proprietor of the Soil. The Prin-
cipality of Liege County of Limbourg Hainaut. Laws of
1791,1810,1837,1854-1860. Council of Mines. International
Treaty, 1862, respecting Companies . . . . . 41
GERMANY, AUSTRIA, PRUSSIA.
Prerogative of the Crown Government Grants. Laws in the dif-
ferent States Local Officers and Courts. Prussia: Royal
Rights Grants. Dues and Taxes Laws 1810-1862. Austria:
Laws 1854-1860 Royal Rights Government Grants, first
limited, then absolute . . . . . .45
SPAIN MEXICO.
SPAIN : Ancient Ordinances Laws of 1859 Government Grants
ITow to obtain Grant Dues and Taxes Formation of Mining
Companies.
MEXICO : Mining Laws of Spain when applicable Durango
Chihuhua Guanacauto Foreigners Privileges Laws of 1823,
1842 Duties and Customs Treaties of Commerce . . 52
ITALY SARDINIA THE PONTIFICAL STATES.
Laws of 1859 Government Grants . . . .62
RUSSIA.
No Royal Prerogative in Private Lands Grants in Crown Lands
Dues and Taxes Private Rights . . . .63
AMERICA.
No Mining Code Water-courses Support to Lands . . 64
FOREIGN LAWS, CORPORATIONS, AND COMPANIES.
Foreign Laws and Judgments Action on Foreign Judgments
Stay of Proceedings in English Courts whilst Action is Pending
in Foreign Courts Pending Appeal Error in Foreign Judg-
ment Reversing Foreign Judgment Taking Evidence in Fo-
reign Proceedings, 19 & 20 Vic. c. 113; 22 Vic. c. 20. Ascer-
taining Law of Foreign States, 24 Vic. c. 11. Foreign Cor-
porations and Companies Domicil of Foreign Incorporated
Company Unregistered Foreign Company Non-interference
with Foreign Company Proof of and Jurisdiction over a Foreign
Partnership . . . . . . . 65
CONTENTS. vii
PART IV.
THE LAW RELATING TO MINES, MINERALS, AND QUARRIES IN
GREAT BRITAIN AND IRELAND.
CHAPTER IV.
RIGHTS OF THE CROWN. PAGE
The Existence of Minerals known to the Phoenicians, the Greeks,
and the Romans Classical Authorities Mines under the Ro-
mansThe Civil Law Rights of the Crown, from the Period
of the Norman Conquest, reviewed Protests of the Miners
and Landowners against Royal Claims The Great Case of Mines
Confirmation of Royal Rights and Private Rights, by Statutes
1 Will. & M. c. 30 ; 5 W. & M. c. 6 Rights of the Crown to
Minerals under the High Seas The Sea-shore Definition of the
Sea-shore Rights of the Crown and Duchy of Cornwall defined
by 21 & 22 Vic. c. 101 Right of the Crown to Mines in Der-
byshire, Forest of Dean, Wales, Ireland, and Scotland . 72
CHAPTER V.
RIGHTS OF THE DUCHY OF CORNWALL.
Charters of Edward III. Creation of Duchy, Grant of Manors in
Cornwall and Devon Habendum Strict Entail Explanation
of Charter Prince's case. Sale of some of the Manors Reser-
vation of Minerals. Assessiou Court Commission for holding
Court Proceedings at the Court Eines Acknowledgments
Eealties Heriots Conventionary Tenant's Right Dispute as
to Minerals Rowe v. Brenton Legislative Enactments 7 & 8
Vic. c. 105 Commissioners' Award Duke's Title to Work
Minerals Compensation to Tenants Arbitration Private
Rights Tin Bounds protected Confirmation of Awards, 11 &
12 Vic. c. 83 Commutation of Manorial Rights. Limitation of
Actions and Suits 23 & 24 Vic. c. 53 ; 24 & 25 Vic. c. 62 Title
of the Duke to Gold and Silver to Minerals under the High
Seas and the Sea-shore . . . .107
ALIENATION, LEASES, GRANTS, SALES, EXCHANGES.
Comprising Leases on Lives Leases generally, 24 Geo. II. c. 50;
33 Geo. III. c. 78 ; 3 Geo. IV. c. 78 ; 5 Geo. IV. c. 78 ; 5
Geo. IV. c. 103, s. 19 ; 1 & 2 Will. IV. c. 5 ; 1 & 2 Vic. c. 101 ;
5 Vic. c. 2, s. 2 ; 11 & 12 Vic. c. 83, s. 3; 23 & 24 Vic. c. 53.
Ecclesiastical Leases. Grants for Charities, Schools, &c. Ce-
meteries, &c. Sales and Exchanges generally, 7 & 8 Vic. c. 65 ;
25 & 26 Vic. c. 49. Certified Copies of all Instruments to be re-
ceived in Evidence Stamp Duties. General Management of the
Duchy Possessions under 26 & 27 Vic. c. 49, including powers
of Sale, Enfranchisement, Purchases, Leases Forms of Convey-
ance. Acts of Duchy are Public Acts .... 130
viii CONTENTS.
CHAPTER VI.
INTERPRETATION or THE TERMS MINES, MINERALS, AND
QUARRIES. PAGE
Iii Deeds, the Intention of the Parties and the Grammatical Sense
usually prevail. Parol Evidence and the Customs of a District
arc admissible to explain the Terms. Mines, Lime-works, Salt-
works, Clay-pits, Minerals, and Quarries defined. Stone is a Mi-
neral. The Distinction between a Mine and Quarry. Scientific
meaning of a Mineral Metalliferous or Non-metalliferous
Local signification Wales, Cornwall, Derbyshire , . 143
CHAPTER VII.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
OWNERSHIPS IN GENERAL.
Coke's doctrine : the Owner of the Surface, prima facie, entitled to
Minerals Right to Minerals in Alluvial Lands Minerals, when
real, when personal estate right to search for Minerals distinct
Ownerships may be established consequences of distinct Owner-
ships Statute of Limitations ..... 151
FREEHOLD LANDS.
TENANT IN FEE-SIMPLE. Absolute Right to Mines and to Work
for Minerals Qualification of Right when there is an Execu-
tory Devise over.
TENANT IN TAIL. Same Right as a Tenant in Fee-simple to Search
for Minerals Common Law power of Alienation Enlarged by
Statutes 3 & 4 Will. IV. cc. 74, 92 ; 18 & 19 Vic. c. 120.
TENANT FOR LIFE. Distinction between Tenant for Life, without
impeachment of waste, and impcachable for waste The former
may open new Mines or Quarries The latter can only work old
ones An old Mine and Quarry defined New Seams of Coal
worked by an old shaft is au old Mine. Power of Alienation, 19
& 20 Vic. c. 120.
TENANT IN TAIL AFTER POSSIBILITY OP ISSUE EXTINCT. Dispu-
nishable for waste, may therefore open Mines cannot bar entail
For some purposes, a Tenant for Life, 18 & 19 Vic. c. 120.
TENANT BY THE CURTESY. Punishable for waste cannot open
new Mines Power of Alienation, 18 & 19 Vic. c. 120 When
Copyholds subject to Curtesy.
TENANT IN DOWER. A Widow is dowable out of all Mines, and
whether opened by the Husband or the Heir The recent case of
Dickeu v. Hainer reviewed Dower when Mines are leased.
Dower in Mines may be assigned, and by an Infant Heir.
TENANT FOR YEARS AT WILL BY SUFERANCE cannot search for
Minerals When liable for Permissive and Voluntary Waste A
Long Term of Years Lease on Lives renewable for ever No-
minal Damages will not be sufficient to support au Injunction to
restrain Waste.
CONTENTS. ix
PAGE
TENANTS IN COMMON CO-PAHCNEES JOINT TENANTS The ef-
fect of one only being iu possession of Mines When a Partition
will be decreed Right of each to work for Minerals wilful
Waste restrained Action of Account by one against the other
in respect of Waste, given by Statute A Receiver may be ap-
pointed ........ 157
CHAPTER VIII.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
COPYHOLD LANDS.
Points of difference between Freehold and Copyhold Lands. Rights
of the Lord and the Tenant to open new Mines and work old
ones. When Trespass or Trover lies Waste Injunction.
Prescription or Custom may qualify the rights of the Lord and
the Tenant respectively. When Customs of one Manor may ex-
plain those of another Manor. Court liolls. When a Copyhold
Tenant is a competent witness to prove a custom. Enfranchise-
ment Voluntary and Compulsory 4> & 5 Vic. c. 35 6 Vic.
c. 237 & 8 Vic. c. 5515 & 16 Vic. c. 5716 & 17 Vic. c. 57
21 & 22 Vic. c. 94; how Title to Mines, Minerals, and Quarries
affected thereby ...... 171
CHAPTER IX.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
COMMONS, WASTE, AND ENCLOSED LANDS.
Tyringham's Case. Lord of the Manor is entitled to the Minerals,
and may work Mines and Quarries. Commoners' Rights. Pre-
scription Custom. Mines pass on Allotment, unless reserved.
Enclosure Acts Mines and Minerals expressly provided for
Reservation of Rights of the Lord. When Ownership in Mi-
nerals distinct from the Surface, rights of the respective Pro-
prietors, Lessees, and other Persons not to be affected by the
Enclosure Surface damage Power to work enclosed Lands . 188
CHAPTER X.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES, IN,
UNDER AND ADJACENT TO
RAILWAYS.
Railway Clauses Act, 1845. Minerals do not pass on a Conveyance
of the Land Owners may work Mines after notice Liberty to
cut Airways, Headways, Gateways, Water-levels. Company to
make Compensation for Losses to Owners may enter and in-
spect Mines Railway to be protected. Lands Clauses Act in-
corporated with Railway Clauses Act Decisions as to working
Mines Compensation Surface and Lateral support. Compen-
x CONTENTS.
PAGE
satiou for future loss. Arbitration. Scotland. Ireland. Rent-
charges. Inquisition under Lands Clauses Act. Compensation
for Severance of Lands. When an action lies, and not an assess-
ment of damages under the Acts Works for accommodation of
Owners Decisions in reference to Mines . . . 196
HIGHWAYS.
Minerals belong to owners of adjoining soil, usque ad medium filum
via. 7 & 8 Geo. IV. c. 245 & 6 Will. IV. c. 50. Surveyors
may take stone, gravel, &c. their liability for injuries to Mines.
Mining works within certain distances of roads, prohibited.
4 & 5 Vic. c. 818 & 9. Vic. c. 71. Surveyors not to exercise
their powers recklessly. Prescriptive rights. Fences . . 209
CANALS.
Clauses in Canal Acts are similar to those in the Railway Clauses
Act Decisions respecting the one, generally applicable to the
other Right of owner to Avork Mines Compensation . . 213
WATERWORKS.
Minerals do not pass on a conveyance of the land may be pur-
chased. Railway and Lands Clauses Acts Compensation for
damages caused in. the execution of Works. Arbitration . 214
CHAPTER XI.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
W r HEN THE OWNERS ARE UNDER DISABILITIES.
INFANTS. Right of an Infant, or his Guardian, to search for
Minerals in a fee-simple Estate when the Infant is Tenant-in-
tail. Contracts which bind the Infant. Jurisdiction of the
Court of Chancery. Indefeasible title.
MARRIED WOMEN. Liability of the Husband for waste committed
in his Wife's Estates. Power of a married Woman to purchase
a Mineral Estate Power of alienation. Indefeasible title.
IDIOTS AND LUNATICS. When Contracts are binding. Jurisdic-
tion of the Court of Chancery the Court will authorize an ex-
penditure in Mines, and Leases of opened and unopened Mines.
Partnership with a Lunatic ..... 217
ASSIGNEES or BANKRUPTS. How property is vested in the As-
signees under the Bankruptcy Acts, 1849, 1854, 1861 reputed
Ownerships of Shares in a Company order and disposition of
the Bankrupt. When Assignees adopt the Contracts of a Bank-
rupt. Leases when covenants not oinding settled Estates.
OFFICIAL LIQUIDATORS. The Companies Act, 1862 how property
vests. Leases covenants, when binding . . . 222
MORTGAGEES. Mortgagee in fee in possession his right to search
for and work Minerals Consequences. Receiver. Accounts and
Inquiries taken and directed by the Court of Chancery Statute
of Limitation. Foreclosure and Redemption Suits. Mortgagees'
CONTENTS. si
PAGE
liability to Strangers for acts of Mortgagors. When Mortgagee
will be considered to have adopted the agreements of Mortgagor.
Leases by Mortgagees Mortgagor .... 229
CHAPTER XII.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
ECCLESIASTICAL COKPORATIONS.
(AGGREGATE AND SOLE.)
Right to work Mines Prescriptive Right. Powers of Alienation
Enabling and Restraining Statutes, 32 Hen. VIII. c. 28 ;
1 Eliz. c. 19; 1 James, c. 3 ; 13 Eliz. c.10 18 Eliz. c.ll ; 39 & 40
Geo. III. c. 41. Concurrent Leases. 6 & 7 Will. IV. cc, 20, 64 ;
5 Vic. c. 27 (sees. 2) ; 5 & 6 Vic. c. 108 ; Mining Leases-
Leases of Water, Way-leaves, and other Easements Surrender
of existing Leases Consents Premiums Ecclesiastical Com-
missioners. 14 & 15 Vic. c. 104 ; 21 & 22 Vic. c. 57 ; 23 & 24
Vic. c. 124; 24 & 25 Vic. c. 105 ; 25 & 26 Vic. c. 52. Leases
by Incumbents consents generally.
IRELAND. Mining Leases Enquiries as to Mines before Con-
veyance in Fee Rent on Mines profitably worked . . 234
ELEEMOSYNARY CORPORATIONS.
Common Law right to work mines, and alienate land. Statutory
rights 13 Eliz. c. 1014 Eliz. c. 1418 Eliz. c. 639 Eliz.
c. 56 & 7 Will. IV. c. 20 mining leases 16 & 17 Vic. c. 137
18 & 19 Vic. c. 12425 & 26 Vic. c. 112. When a bequest of
mining property to a charity is legal .... 250
MUNICIPAL CORPORATIONS.
Common law and statutory rights ..... 252
CHAPTER XIII.
INJURIES TO MINING PROPERTY.
WASTE.
Definition of Waste voluntary or permissive destructive or me-
liorating legal or equitable. Waste by persons witli limited
interests Trustees to whom profits of wrongful waste belong.
Ecclesiastical persons right to gravel, stone, &c., for repairs,
but not for sale continuing to work pits opened by Surveyors
of Highways is waste. Remedies legal and equitable. Injunc-
tionsaccounts. Proceedings against ecclesiastical persons . 253
NUISANCE.
What constitutes a Nuisance The cases relating to Brick-burning
Mining Furnaces Noxious vapour Necessity for Fences to
Mines Shafts and Machinery of a dangerous kind Nuisances
resulting from the pollution or detraction of Water Removing
of support to lands ...... 261
CONTENTS.
CHAPTER XIV.
TITLE BY ALIENATION.
ALIENATION GENERALLY. PAGE
Statute of Frauds, and 8 & 9 Vic. c. 106. Deeds generally
Feoffment, Grant, Partition, Exchange, Lease, Surrender by
Operation of Law. The doctrine of caveat emptor applied to
Mines How affected by deceit cither on the part of the Vendor
or Purchaser. Specific performance and Equitable relief Rights
beneath the surface, on severance of two Estates. Mines sold
by the Court of Chancery. Registration of Deeds Stamps. Who
may alienate. The Crown The Duchy of Cornwall The Free-
holder The Lord of the Manor Persons with limited interests
Trustees Mortgagees Asignees of Bankrupts Official Li-
quidators Ecclesiastical and Municipal Corporations . . 268
SALES AND LEASES or SETTLED ESTATES. Mining Leases by di-
rection of Court of Chancery. On Sales, Minerals may be re-
served 19 & 20 Vic. c. 120 ; 22 & 23 Vic. c. 35 ; 23 & 24 Vic.
c. 145 ; 25 & 26 Vic. c. 108 Confirmation of doubtful powers
for leasing, and sale of Minerals How proceeds of sales to be
applied . . . . . . . .280
LEASES.
LEASES GENERALLY. A Demise of minerals is a demise of the
realty when a demise of lands includes Mines and not Quarries
effect of a demise of coal after a demise of other minerals in
the same land under what circumstances Equity will grant
relief. A Lease is Partnership assets. Right of a Lessee to in-
spect an adjoining mine. When recitals amount to covenants
description of the premises Habcndum Reddendum in diffe-
rent districts Covenants form and construction of covenants
oppressive covenants to raise a certain specified quantity
sales at the pit's mouth covenants running with the land for
yielding up in repair machinery and fixtures when an excess of
produce of one quarter may be set off against a deficiency of
another quarter covenant of an assignee waste implied cove-
nant to make pits equitable assignee bankruptcy when a
covenant to refer to arbitration is void to yield up in repair
quiet enjoyment. Covenants, when joint and several . . 287
LEASES TJNDER POWERS. When Mines opened or unopened are
included in a power to lease construction of powers generally
meaning of the \yord " rent." Equitable jurisdiction. 12 & 13
Vic. c. 26 ; 13 Vic. c. 17. Leases on lives in possession or
reversion. 23 & 24 Vic. c. 145 ; 25 & 26 Vic. c. 108 . . 307
LICENSES.
Definition of a License when it does and does not confer an in-
terest in land parol licenses licenses by deeds erroneous
judgments cases overruled what a licensee's interest amounts
to rights of a landlord who makes a parol demise reserving
minerals ..... 311
CONTENTS. xiii
SALE OP SHAKES. PAGE
Contract not within the Statute of Frauds unless the Shareholders
are jointly interested in the land parol contract, when a
contract is void, or voidable fraud bankruptcy usage of
brokers in contracts when abstract of title can be demanded
garnishee ....... 314
MACHINERY FIXTURES.
Distinction between trading and mining fixtures machinery,
engines, boilers, &c., may be removed premises not to be da-
maged respective rights of a mortgagee and assignees of a
bankrupt the mode and object of erection govern the owner-
ship result of decisions machinery distrainable for rent
when machinery and fixtures should be removed, 14 & 15 Vic.
c. 25 317
TITLE BY WILL.
When mines are devised separately from the minerals, are unopened
as well as opened mines included in the devise ? Special provi-
sion in Wills necessary. Succession Duties Act decision as to
unopened Mines ...... 322
CHAPTER XV.
TITLE BY PRESCRIPTION AND CUSTOM.
Requisites of a good title by Prescription or Custom. Distinctive
characteristics of each. Illegal customs and prescriptions. Proof
of a prescription and custom 2 & 3 Will. IV. c. 71 general
effect of the Prescription Act decisions before and since the
Act . 327
CHAPTER XVI.
LOCAL LAWS AND CUSTOMS.
No JUDICIAL NOTICE OF LOCAL CUSTOMS WITHOUT PROOF.
CORNWALL AND DEVON.
Antiquity of Customs confirmation by the Stannary Parliaments.
Statutory recognition ...... 340
The right to cut adits through the lands of others.
The right to the use of, and to divert and foul water,
for tin-bounds, if not, for mines in general.
The right to forfeit a customary set for non-working
or improper working .... 343
TIN-BOUNDING.
CORNWALL. Antiquity of custom proved from the Charter of John
Pearce's, arid Smirke's Stannary Laws Convocations or Par-
liaments of the Tinners James I. Charles I. James II. 26 &
xiv CONTENTS.
TAGE
27 Geo. II. Court Rolls of the Stannaries. Description of the
custom iu Howe v. Brcuton Rogers v. Brenton. Custom re-
ferred to in 6 & 7 Will. IV. c. 106, ss. 41, 43 ; 7 & 8 Vic. c. 105,
ss. 32, 84; 18 Vic. c. 32, s. 17. Decisions on the custom
Crease v. Barrett Doe d. Earl of Faluiouth tin only subject to
the custom immemorial bounds renewing and preservation of
bounds Vice v. Thomas Rogers v. Brenton, Stannary laws,
ministers' accounts used in evidence, Lord Denman's judgment
Smirke's opinion Attorney-General v. Mathias Constable v.
Nicholson. The author's deductions from the authorities respect-
ing the custom ....... 347
DEVONSHIRE. Custom in Devon resembles the Cornish custom
points of difference real estate tolls to the Lord . . 378
CUSTOMARY LAWS OF THE COST-BOOK SYSTEM.
Adventurer's Liability.
No System of Credit allowed.
Inspection of Books.
Inspection of Mines.
Transfers and relinquishment of shares.
Creditors' lien on Mine and Machinery.
Lien on shares for costs and calls.
Purser's right to sue for arrears of calls.
Customary right to forfeit shares.
Miners' exclusive privilege to sue and be sued.
Definition of the term " Miner" . . . 379
SOMERSETSHIRE.
Ancient customs extinct refuse of ancient workings are the
present operations of the miners within the laws of mining or
quarrying? . . . . . . . 386
FOREST OF DEAN AND HUNDRED OF ST. BRIAVELS.
GLOUCESTERSHIRE.
Ancient customs indefinite. Acts of Parliament 1 Charles I.
c. 1620 Charles II. c. 348 Geo. III. c. 7259 Geo. III.
c. 86 10 Geo. IV. c. 50-1 & 2 Will. IV. c. 12; 3 & 4
Will. IV. c. 38 ; 4 & 5 Will. IV. c. 59 Commissioners appointed
their reports. 1 & 2 Vic. cc. 42, 43 rights of the Crown
and the Free Miner defined new Commissioners appointed
Commissioners' award to be in triplicate . . . 387
COAL MINES. Titles to existing Gales confirmed Applications
for Gales before 9th April, 1832, granted by Commissioners
extent of Gales defined rules and regulations for working
Gales prescribed union of Gales special provisions red-
dendum on Gales Lord Seymour v. Morrell dispute as to
minimum or dead rent ...... 392
IEON MINES. Title to existing Gales confirmed applications for
Gales made prior to 9th April, 1832, granted by Commissioners
limits to Gales, and rules and regulations for working them
prescribed ....... 399
CONTENTS. xv
PAGE
QUARRIES. Title to existing Quarries confirmed, their limits de-
fined, and rules and regulations for working them prescribed . 401
COAL AND IKON MINES AND QUARRIES. Customs to cease on com-
pletion of awards Gaveller's duties Recovery of Galeage
rents Commissioners of Woods and Forests may grant Leases
claims of the Lord of the Manor of Blakeney disputed and
overruled Prosper Free Level Colliery meaning of " level."
24 & 25 Vic. c. 40 awards of Commissioners declared absolute
and indefeasible Galee's interest in real Estate conditions of
certain leases personal responsibility of persons in possession
Gaveller's powers enlarged. Powers of Commissioners of Woods
and Forests to grant Leases, and Licenses enlarged. Compen-
sation respecting surface damage new provisions respecting
Gales, labourers' cottages, and unlawful trespasses . . 403
DERBYSHIRE.
Antiquity of the customs confined to Lead Mines and certain
Manors ....... 411
THE HIGH PEAK 14 & 15 Vic. c. 94 Interpretation of the words
" mine, vein, ore, mineral property" mining customs, and ju-
risdiction of the Barmote Courts defined power to make new
Laws the extent of that power new Laws, 1859 Synopsis
of Act and new Laws Schedule of new Laws interpretation
thereof . . . . . . . .412
WAPENTAKE or WIRKSWORTH AND PRIVATE MANORS 15 & 16
Vic. c. clxiii. Jurisdiction and customs defined and amended
Synopsis of the Act Schedule of Articles and Customs . 420
Peculiarity of Customs in the Lead districts profit a, prendre in
alieno solo no compensation to the owner of the soil Tithes
payable. Coal and Iron not subject to the Customs . . 437
THE COAL AND IRON DISTRICTS.
Barriers Surface damage Water-courses Way-leaves . 438
CHAPTER XVII.
EASEMENTS AND SERVITUDES.
OF THE NATURE AND CHARACTER or EASEMENTS AND SERVITUDES,
AND THE MANNER OF ACQUIRING AND LOSING THEM.
The Roman Law how far adopted by modern States the Con-
tinent generally the Code Napoleon. America. Easements
and Servitudes are incorporeal hereditaments Definition of
Easement Servitude. Division of Easements and Servitudes
into natural and artificial. How Easements and Servitudes are
acquired, by grant prescription or Custom ; how lost by
surrender by merger of the dominant and servient tenements
by their becoming useless by the burden of the servitude
being increased by abandonment. When abandonment is
relied upon, is it necessary to prove interruption of the right ?
xvi CONTENTS.
PACK
How and when Easements and Servitudes are revived. Repairs
of Easements. Injuries to Easements. Easements and Servi-
tudes are not to be affected by a declaration of title under 25 &
26 Vic. c. 67 440
SUPPORT TO LANDS.
The Roman Law Code Napoleon, how far recognized. "When
there are two rights which is subservient to the other ? to what
extent minerals may be worked under a reservation of them by
deed prescriptive right lateral and subjacent support when
minerals and the surface are distinct Inheritances right of sup-
port on severance of two estates ; adjacent and subjacent sup-
port Result of authorities as to adjoining, adjacent, and sub-
jacent support . . . . . . .455
QUALIFIED SUPPORT. The right of support which prima facie
belongs to the owners of adjoining, subjacent, or adjacent lands
may be qualified by circumstances damages for subsidence . 469
SUPPORT TO BUILDINGS.
The right of support to land is not necessarily extended to build-
ings. When the soil is overloaded Wyatt v. Harison Gay-
ford v. Nicholls Solomon v. Vintners 3 Company Sprot v.
Caledonian Railway Company. When the buildings did not
cause the subsidence Hunt v. Peake Hamer v. Knowles.
Support through an intermediate house Solomon v. Vintners'
Company. Prescriptive right to support Stansell v. Jollard
Hill v. Thoniborough Dodd v. Holme Partridge v. Scott
Rogers v. Taylor Browne . Robins Bibby v. Carter Hunt
v. Peake Humphries v. Brogden Bonomi v. Backhouse So-
lomon v. Vintners' Company Berkley v. Shafto constructive
support ........ 472
SUPPORT TO RAILWAYS, PUBLIC WORKS AND CANALS.
Works of a public company constructed under an Act of Parliament
are entitled to less subjacent but to more adjoining and adjacent
support than the works of a private owner. Wyrley Canal Com-
pany v. Bradley. Dudley Canal Company v. Grazebrook Rex
v. Leeds and Selby Railway Company. Caledonian Railway
Company v. Sprot. North-Eastern Railway Company v. Cross-
land. Elliot v. North-Eastern Railway Company Subjacent,
adjoining and adjacent support a compulsory purchase, differs
only from an ordinary purchase when the deed of conveyance or
Act of Parliament imposes conditions. Fletcher v. Great-
Western Railway Company ; London & North- Western Railway
Company v. Ackroyd not impugned by the judgment in Elliot v.
North-Eastern Railway Company. Damages from subsidence,
Croft v. London & North- Western Railway Company . . 476
STREAMS AND WATER-COURSES.
NATURAL STREAMS AND WATER-COURSES. When water is part of
the Freehold or only an Easement The Roman Law French
and American Law recognized in England right to water
CONTENTS. xvii
PAGE
flowing in its natural state prescriptive right remedies 25 &
26 Vic. c. 67 not to affect any claim or right to water . 484
DIVERSION AND DEFILEMENT OP WATER. To what extent and for
what purposes water may be diverted prescriptive right De-
filement of water whilst carrying on mining operations Water-
works Act, 1847 Salmon Fisheries Acts, 1861, 1862 Scot-
land . . . . . . . .492
SUBTERRANEAN AND SPRING WATER. Distinction between water
flowing on the surface and underground water springs the
Roman Law referred to reasonable use of the water. No pre-
scriptive right Code Napoleon American Law . . 496
ARTIFICIAL WATER AND WATER-COURSES. Distinction between
artificial and natural Water-courses prescriptive rights Ame-
rican Law ....... 504
RIGHTS OF WAY WAY-LEAVES.
A right of way not necessarily a right of way for all purposes
when for limited purposes a grant in gross, is personal. Pre-
scriptive right ; how affected by unity of ownership pleading
the right Way-leaves when under a grant of way-leaves a
railway may be made by locomotive power construction of
rights of way, way-leaves, waggon-way, under a reservation for
obtaining minerals are ways capable of exception or reservation
out of grant of land ways of necessity .... 506
CHAPTER XVIII.
RATING OF MINES, MINERALS, AND QUARRIES, AND OF
WAYS AND OTHER EASEMENTS.
POOR'S RATE.
Poor Law Act, 43 Eliz. c. 2 no mine but] a coal mine rateable.
When iron is mixed with coal exclusive occupancy Quarries
of all minerals are rateable. Tolls and dues when payable in kind,
are rateable chargeable to occupier of land Justices' jurisdic-
tion but tolls or dues reserved in specie, are not rateable. Ore
in a partially smelted state. Tolls or dues payable by custom
residence not necessary. The principle of rating coal mines
result of decisions when rateable to two parishes. Commons
and Waste lands principle of rating mines in enclosed lands.
Rights of Way, Way-leaves, and Easements, in England, not
rateable. Rating of Mines, Ways, and Easements, in Ireland . 515
HIGHWAY RATE.
Mines and quarries, when rateable Special provisions respecting
South Wales 526
COUNTY RATE.
Property liable to poor's rate is also liable to the County Rate . 527
b
xviii CONTENTS.
CHURCH HATES. TAGE
Mines and Quarries liable to these rates under the description of
land 527
TITHES.
Mines not usually tithable, but tithes are payable in Derbyshire.
Rent-charges ....... 527
CHAPTER XIX.
REGULATION AND INSPECTION OF MINES.
INSPECTION of all Mines. Employment of boys and girls under
certain ages prohibited boys under certain ages not to have
charge of engines, machinery, tackle, &c. who to be deemed in
charge penalties 5 & G Vic. c. 9923 & 24 Vic. c. 151 . 529
GUNPOWDER may be kept on Mines and Quarries 23 & 24 Vic.
c. 139. Powers of Secretary of State. Jurisdiction of Justices. 532
WAGES payment of miners' and apprentices' wages how, when,
and where Coal and Ironstone Mines, payment by weight.
When the owners are declared Bankrupts. Jurisdiction of Jus-
tices in cases of dispute when master is absent Appeal . 533
MISDEMEANOBS, by miners and apprentices generally when there
is a special contract when the Apprentice absents himself
cases within the Stannaries of Cornwall and Devon Appeal.
Misdemeanors in Coal and Iron Mines, waste and enclosed lands
filling in shafts stacking coal damaging materials. Com-
plaints against masters for cruelty or ill-treatment. Proceedings
before Justices in all the above matters . . . 537
COMBINATIONS of masters and workmen masters and labourers
must be left free Bonds to counteract combinations illegal
6 Geo. IV. c. 129 ; 22 Vic. c. 34 ; 24 & 25 Vic. c. 100 . 541
COAL AND IRONSTONE MINES. Special provisions for inspection of
Coal and Ironstone Mines 13 & 14 Vic. c. 100 ; 18 & 19 Vic.
c. 108 ; 23 & 24 Vic. c. 151 Appointment and duties of In-
spectors Maps and plans for Inspectors penalties for ob-
structing Inspectors report of Inspectors. Duties of Coroners.
The duties of Owners and Agents when accidents occur
Fences to abandoned mines penalties. General and Special
Rules, Ventilation, &c. 23 & 24 Vic. c. 151 penalties a cer-
tified copy of special rules to be received in evidence. Prohibi-
tion of single shafts Arbitrations in cases of dispute mode of
conducting arbitrations enforcing compliance with Act Agree-
ments in contravention of Act arc illegal 23 & 24 Vic. c. 151
and 25 & 26 Vic. c. 79 to be construed as one Act Appeal.
Scotland . . . . . . .543
CHAPTER XX.
THE CQAL TRADE.
The Coal Trade is free. Measuring keels, boats, carts, &c. Jus-
tices may fix retail prices of imported coals. Coals must be sold
CONTENTS. xix
PAGE
by weight. Penalties for selling one kind of coals for another.
When coals arc unfit for the specified purposes. Special contract
for conveying coals by rail. Statutory contract, how proved.
Duties on imported coals ...... 554
LONDON DISTRICT. The Coal Exchange. Duties on Inland and
Foreign coals entering the port. Borrowing money on duties.
By-laws. Sales to be by weight. Selling one sort of coals for
another tickets on delivery sacks ships and carts carts to
be weighed with the coals delivery of less quantity than pur-
chased weighing-machines with carts coals and sacks to be
weighed weighing-machines to be kept at public places certi-
ficate of quantity of coals to be delivered to be registered
penalties in respect of the above defaults how recoverable and
applied. Limitation of actions Patent fuel notjiable to duties
Amendment Act, 1 & 2 Vic. c. 101, consequences of not deliver-
ing tickets when coals are delivered on purchaser's wharf direct
Duties continued to 1882, and extended to coals brought by
railways, canals, or any other mode of conveyance within the
London district. Coal-whippers' Acts expired . . . 557
LOCAL ACTS AND LAWS. Brighton King's Lynn Northumber-
land and Durham, meaning of " loading in regular turn" New-
castle-upon-Tyne Ireland . . . . -.566
CHAPTER XXI.
CIVIL REMEDIES.
Equity.
Equitable relief
Bill for an Account
Foreclosure Suits
Redemption Suits
Receivers and Managers . 569
Inspection of Adjoining Mines . . . 576
Injunctions . . . .577
Common Law.
Ejectment
Use and Occupation
Trover
Trespass
Case
MASTERS AND WORKMEN.
When labourers' Contracts are within Statute of Frauds. Contracts
for an indefinite time notice to determine service . .580
APPRENTICE v. MASTER, for neglect, want of instruction, or proper
maintenance . . . . . . 582
WORKMAN v. MASTER, for an injury caused by negligence when
the workmen contribute to the misfortune when a competent
foreman is engaged when accident occurs through another
servant when fellow-worker is a partner a volunteer worker.
Statutory liability Lord Campbell's Act. 23 & 2-i Vic. c. 151 ;
25 & 26 Vic. c. 79 neglect of general and special rules In-
junctions. Fences ...... 582
MASTER'S LIABILITY TO STRANGERS, for the acts of his workmen
unlawful acts when a contractor is employed fraud of work-
men . . . . . . . .587
62
xx CONTENTS.
FACE
MASTER v. STRANGERS, for loss of services of workmen for har-
bouring workmen for procuring breach of contract . . 589
Drowning Coal-pits and Mines . . . . .590
CHAPTER XXII.
PLEADINGS IN ACTIONS.
Barriers Canals Coal Mines Coal Trade Commons Condi-
tions precedent Cornish Customs Cost-Book System
Covenants Crown Customs Easements .Fences Fixtures
Foreign Judgments Leases Licenses Masters and Work-
men Minerals Mines Nuisances Prescriptive Rights
Railways Shafts Shares in a Mine Statute of Limitations
Support to buildings Support to lands Tenants in Common
Tin-Bounding Trespass Trover Waste Water-courses
Ways Way-leaves Working Mines .... 592
CHAPTER XXIII.
CRIMINAL OFFENCES.
Special provisions relating to mines.
24 & 25 Vic. c. 96 stealing ores concealing ores breaking into
buildings apprehending offenders.
24 & 25 Vic. c. 97 Injuries to fences setting fire to a coal mine
attempting to set fire to any mine setting fire to buildings
conveying water into a mine, damaging shafts, engines, waggon-
ways, &c. riotously destroying and injuring mines, buildings,
engines, &c. apprehending offenders.
24 & 25 Vic. c. 100 Masters and workmen, ill-treatment neglect
in providing necessaries.
Ireland and Scotland.
Manslaughter, by explosion of fire-damp, falling of trucks into
shafts, for delegating an improper person to superintend mining
works ........ 601
CHAPTER XXIV.
PRECEDENTS FOR LICENSES AND LEASES.
1. License to search for Minerals .... 610
2. Lease of a Tin, Copper, or Lead Mine . . . 611
3. Lease of Coal Mines in the North of England . . . 624
4. Lease of a Colliery and of the Surface and adjoining Lands in
Wales . . . . . . .652
5. Lease of Quarries of Limestone and of Lands . . . 669
6. Lease of a Limestone Quarry ..... 678
7. Lease of a Way-leave ...... 679
8. Lease by direction of the Court of Chancery . . . 681
9. Lease under a power ...... 682
10. Lease under a power, the Lessor being also Tenant for life . 683
11. Lease under a power and in pursuance of an agreement en-
tered into with a Deceased, the Lessor being also Tenant
for life . . . . . . .684
INDEX . . . 687715
TABLE OF AUTHORITIES, STATUTES, AND
CASES CITED.
AUTHORITIES CITED.
Annales des Mines, 25
Bacon's Abridgment, 369, 170, 247, 253, 328
Bell's Principles of Scotch Law, 186
Black. Com. by Stephen, 4 edit. 47, 87, 103, 151, 444, 453
Borlase's Antiquities of Cornwall, 72, 74
Burn's Ecclesiastical Law, 247, 528
Bury, Com. sur la Legislation des Mines, 43
Caesar, B. G. 73
Cancrin, 46, 48
Carew's Survey of Cornwall, 377
Castellaue, Aff. de, 24
Chicora, Jurisp. du Cons, des Mines, 43
et Dupont ; Code des Mines, 43
Cicero Epist. ad Famil. 74
Ad. Attic. 74
Code, Civil, 24, 25, 33, 35, 455, 490, 503
, Penal, 23
Coke, Litt. 102, 143, 158, 160, 162, 163, 167, 168, 169, 170, 177, 189,
212, 218, 220, 236, 247, 248, 253, 260, 288, 294, 312, 327,
444, 445, 449
Coke's Entries, 79
Inst. 79, 87, 102, 103, 218, 327, 484, 528
Collier on Mines, 369
Comyn's Digest, 456
Concanen, 77, 81, 112, 113, 114, 117, 118, 364
Dalloz, Propriete des Mines, 22, 23, 25, 43
Delebecque, Legislation des Mines, 41, 50
Doomsday Book, 20 Will. I. 75
Dunn on Winning and Working Collieries, 294, 438 439
Dupont, Jurisp. des Mines, 22, 25
Duranton, Cours du Droit Fran9ais, 504
Dwarris, 103, 106
Dyer, 158, 167, 248
xxii AUTHORITIES CITED.
Eichorn, Deutsche Staats und Rechtsgcschichtc, 45
Erskine's lust. 445
Law of Scotland, 105
Favard, La Nouvelle Legislation, 25
Ferguson's Ex. Pract. 103
Fournel Traite des Servitudes, 443, 449
Gamboas Mining Ordinances, 19, 52, 55
Gilbert's Tenures, 178
Gmeliu, Geschichte des Teutschen Bergbaus, 45, 46, 47
Gratian, 17
Hale, de Jure Maris, 90
Bale's MSS. 341
Heineccii Antiq. Rom. Syntag, 17
Henaux, La Houillerie du Pays de Liege, 42
Herme's Liber Niger Scaccarii, 76
Herodotus, 73
Heron de Villefosse, Richesse de Minerale de la France, 22
Houghton's Compleat Miner, 386, 388, 411
Hiilman's Hist, Regalia, 45
Journal des Mines, 49
Off. des Pays-Bas, 37
Jurisp. de la Cour de Bruxelles, 25, 42
du Conseil des Mines, 43
Justin. Code, 18
List. 440, 448
Kent's Com. 443, 447, 455, 488
Laiiie Eleury, 42
Lalaure, Traite des Servitudes, 443, 446
Leggi, Decreti, Regolamenti Concernanti le Sostanzi Minerali, G
Legislacion de Minas, 53, 54
Louisiana Civ. Code, 443
Loisel Institut. Coutum, 21, 22
M. Tarasseiiko-Otreschkoff, 63
Maccarthy, Aff. de, 23
Meriyale's Roman Empire, 19
Merlin, Repertoire de Jurisprudence, 25, 32, 37, 40, 504
Recueil de Questions de Droit, 21, 26
Meyer, Bergwerksverfassung, &c. des Harzes im Mittelalter, 45
Mo'nit. Univ. 49 50
Nicholl's Hist, of Forest of Dean, 387
Ordeuamiento Real, 52
Pailliet, Manuel de Droit Francais, 490
Pardessus, Traite des Servitudes, 448, 449, 455
Pasier, 25
Pearce's Stan. 79, 341, 344, 348, 363, 378, 379, 385
Pettus on Royal Mines, 386
Phill. Inter. Law, 69
Pilkington's Derbyshire, 528
Plowden, 85, 86, 87, 128, 129, 143, 151, 168, 411, 444
Polwhele's Hist, of Cornwall, 80, 340
Hist, of Devon, 340
Polybius, 73
Recueil des Lois Belgique, 43
Gen. des Lois Francais, 23, 38, 39
AUTHORITIES CITED.
xxiii
Regiuuilt d'Epercy, Report on the Law of 1791. ..22
Rockwell's Spanish and Mexican Laws, 55, Gl
Roll. Abrid. 101, 167, 209, 248, 250, 312, 448, 453, 456, 473, 52S
Rover-Collard, l)es Codes Francais, 22
Ru'diug, 80, 82,
Savigny's Roman Law, 18
St. Leonard's Real Prop. 157, 170
Vend, and Pur. 270, 315
Scriven on Copyholds, 176, 179
Selchow, Eleni. Juris. Germ. 47
Selden, 90
Setou on Decrees, 230
Shelford, Lunacy, 221
- Real Prop. 167, 219, 323
Shep. Touch. 151, 154, 312, 446, 509
Sir Geo. Harrison's Report, 341
Smirkc'a Stannaries, 20, 76-83, 104, 111, 112, 348, 303, 367, 370,
385, 388
Sopwith's Award, 392, 393, 394, 395, 397, 399, 400
Stannary Laws, 341, 343, 345, 346, 350, 351, 352, 378, 379, 383, 385
Statisque General de la Belginue, 44
Strabo, 72
Sugden on Powers, 307
Vend, and Pur. 200, 312
Tacitus, 73
Thompson's Laws of Mexico, 57
Theodosius Maximus, 18
Tiberius, 17
Tudor's Real Prop. 167, 166
Valentinian, 18
Vinnius, 485
Watkins' Copyhold, 172
Watson's Clergyman's Law, 247, 248
Zeitschrift fur Bergreclit, Von Brassert v. Achenback, Koln, 49
Assession Roll, 2 Rich. II. 371
Charta Stannariarum Domini Re-
gis, 9 Eich. I. 76
Charter of Liberties, 3 John, 76
of Disafforestation, 16 John,
76
of Liberties, 18 John, 77
(granting the stannary, &c.)
15 Hen. III., m. 4. ..78
of Confirmation, 1 Ed. I. 80
Creating the Earldom of
Cornwall, 4 Ed. III. 107
Creating the Duchy of Corn-
wall, 11 Ed. III. 107, 113
Expounding the Charters of
John and Ed., 50 Ed. III.
385
Charter of Pardon, 23 Hen. VII.
364, 370
16 Car. I., c. 15. ..385
Clause Roll, 5 Hen. III. 78
47 Hen. III. 78
13 Ed. III. 82
28 Ed. III. 82
44 Ed. III. 83
12 Rich. II. 85
Court Rolls, Hen. VI. 370
Hen. VII. 370
17 or 18 Hen. VII. 363
Eliz. 370
Jac. I. 370
Fine Roll, Ed. II. 81
Fines, 12 Ed. III. 82
15 Ed. III. 82
AUTHORITIES CITED.
Ministers' Accounts, 25 & 29 Ed.
I. 370
8 Ed III 371
Rot. Parl. 8 Ed. II. 85
11 Ed. III. Ill
, , . _ 7 & 8 Hen
5 341
VTT ^71
oi f. aa TT pn
VII. 371
351, 352, 370
.. . .. 1 Plnn T T7O
VTF ^71
1 1 Ptnn T
Patent Roll, 78
-5 Hen III 78
343
- 1 1 A: 1 n PhiKT
17 Hen III 78
T ^4Q ^7A
1 Ed I 101
977 ^QQ
- 17 Ed I 101
- 7 Ed I 80
877
,. J(] JJ gl
3 Ed IV 83
QXJ. Q7fi ^534,
1 Hen V 83
Rot. Cart. ins. 18 p. 76
1 Rot Parl 81
II. 353-363
. , 07 p rrn TT
2 Rot. Parl. 83
Rot. Parl. 53 Ed. I. 79
346, 349
Year Book, 2 Hen. IV. 256
STATUTES CITED.
35 Edw. 1
79
30 Chas. 2, st. 1, c. 8
555
35 Edw. 1, st. 2
256
1 W. & M. c. 30
151
lEdw. 3
79
5 W. & M. c. 6 ...
151
17 Edw. 3,7b. ...
... 143
5 & 6 W. & M. c. 10
566
17 Edw. 3
79
6 & 7 Will. 3, c. 10
555
50 Edw. 3
79
1 Anne, st. 1, c. 7
279
5 Rich. 2
79
2 & 3 Anne, c. 4
278
9 Hen. 5, c. 10 ...
555
4 & 5 Anne, c. 16
170
1 Edw. 4
79
5 Anne, c. 8
106
3 Edw. 4
79
c. 18 ...
278
3 Hen. 7
79
6 Anne, c. 2
278
10 Hen. 7 (Poyning's Law) ... 103
7 Anne, c. 20 ...
278
20 Hen. 7 c. 13
320
9 Anne, c. 28
... 555, 557
23 Hen. 8 c. 8 ...
344
3Geo. 2, c. 26 ...
556
27 Hen. 8 c. 23
344
4Geo. 2, c. 30 ...
555
8 c. 26
102
8 Geo. 2, c. 6 ...
278
32 Hen. 8 c. 28
... 158, 219,
9 Geo. 2, c. 36 ...
251
235, 236
11 Geo. 2, c. 15
555
34 & 35 Hen. 8, c.
20 ... 159, 283
13 Geo. 2, c. 21
590
1 Edw. 6
79
17 Geo. 2, c. 35
555
1 & 2 P. & M. ...
79
17 Geo. 2,c. 37
523
1 Eliz. c. 19
... 236, 237
20 Geo. 2, c. 19
536, 537, 538,
2 Eliz
79
539, 540
13 Eliz. c. 10 ...
... 236, 237,
20 Geo. 2, c. 42
102
238, 250
24 Geo. 2, c. 50
131
14 Eliz. c. 14 ...
... 250
25 Geo. 2, c. 4 ...
278
18 Eliz. c. 6
250
27 Geo. 2, c. 20
... 536, 539
c.11 ...
237
6 Geo. 3, c. 25 ...
537, 538, 539
Jas. 6 (Scotland)
104, 105
9 Geo. 3, c. 16 ...
127
39 Eliz. c. 5 ...
250
13 Geo. 3, c. 78
... 256, 258
43 Eliz. c. 2
515
15 Geo. 3, c. 27
555
1 Jas. 1, c. 3 ...
... 143, 236
23 & 24 Geo. 3, c. 20
607
21 Jas. 1, c. 1 ...
250
27 Geo. 3, c. 15
607
1 Chas. 1, c. 16
388
28 Geo. 3, c. 53
555
3 Chas. I
80
33 Geo. 3, c. 55
540
7 Chas. 1
80
33 Geo. 3, c. 78
131
16 Chas. 1, c. 15
80
34 Geo. 3, c. 75
279
15 Chas. 2, c. 17
278
35 Geo. 3, c. 134
88
20 Chas. 2, c. 3...
388, 390, 391
38 Geo. 3, c. 60
112
29 Chas. 2, c. 3, Stat. of Frauds, 268,
39 & 40 Geo. 3, c. 41
236
382 c. 67
103
STATUTES CITED.
39 & 40 Gco. 3, c. 77 539
4 & 5 Will. 4, c. 92 ... 159,219
c. 88 279
5 & 6 Will. 4, C. 50 ... 210,211,
41 Geo. 3, C. 109 189
256, 526
47 Geo. 3, C. 68 564
C. 63 ... 556, 567
S. 2, c. 24 279
C. 69 133
s. 2, c. 68 557
C. 76 252
48 Geo. 3, c. 72 389
6 & 7 Will. 4, c. 20 ... 237, 250
c. 73 279
c. 64 237
52 Geo. 3, c. 9 555
c. 71 528
53 Geo. 3, c. 18 146
c. 96 521
55 Geo. 3, c. 51 527
C. 104 252
56 Geo. 3, c. 21 557
C. 106 ... 342, 366,
c. 49 527
377, 384
57 Geo. 3, c. 1 557
7 Will. 4 & 1 Vic. c. 26 218,322
c. 40 557
C. 28 154, 229
59 Geo. 3, C. 86 389
C. 89 ... 604
c. 94 279
l&2Vic. c. 42 ... 390,391
3 Geo. 4, c. 78 131
C. 43 391,392, 393,
c. 116 210
394, 395, 396,
4 Geo. 4, c. 29 536, 540
397, 398, 399,
C. 34 536, 537
400, 401, 403,
5 Geo. 4, c. 74 556
404, 407-410
c. 78 131
C. 56 ... 524, 525
c. 103 151
c. ci. 559, 561, 563,
6 Geo. 4, c. 17 279
564", 566
6 Geo. 4, c. 129 ... 540, 541
C. 101 131
7 & 8 Geo. 4, c. 24 209
C. 107 133
C. 29 601, 602, 603
C. 120 112
C. 30 604, 605, 606
C. 23 133
607, 608
2 & 3 Vic. c. 58 602
9 Geo. 4, c. 55 602
C. 62 528
c. 56 ... 601, 605, 606, 608
C. 80 566
c. 65 557
3 & 4 Vic c. cxxxi 566
10 Geo. 4, c. 50 ... 389, 391, 410
4 & 5 Vic. c. 35 124, 182, 183,
c. 136 566
185, 190
11 Geo. 4 & 1 Will. 4, c. Ixiv ... 566
C. 38 133
c. 65, 218, 220
C. 51 211
1 & 2 Will. 4, c. 5 131
5 Vic. C. 27 ... 133, 238, 245
c. 12 ... 389, 390
c. 2. seas. 2 ... 131, 135
c. 37 533
5 & 6 Vic. c. 9 10
c. 44 607
c. 35 296
c. Ixxvi... 557-560,
C. 99 529-531, 534,
562, 565
553
2 Will. 4, c. 21 568
C. 108 133, 238, 240,
2 & 3 Will. 4, a fi9 252
242, 245
C. 71 127, 189, 334,
6 Vic. c. 23 183
338, 592, 593,
6 & 7 Vic. c. 2 561
594
c. 23 190
C. 100 127
c. 94 286
3 & 4 Will. 4, c. 27,154,156,169,259
7 & 8 Vic. c. 37 133
c. 37 248
c. 55 183
c. 38 389
C. 65 133, 134, 139,
c. 74 ... 219, 220
140
c. 42 181
c. 76 270
c. 74 ... 159, 162,
C. 105 112, 119, 120,
172, 223
121, 122, 126,
C. 105 163
127, 140, 150,
445 Will. 4, c. 59 389
366
STATUTES CITED.
XXVll
8 Vic. c. 19
204
18 & 19 Vic. C. 13
... 220, 221
8 Vic. c. 33
204
c. 32
575
8 & 9 Vic. c. 18
... 200, 204
c. 43
218
c. 20
196-200, 203
C. 91
287
c. 47
; 603
c. 108
... 543, 586
c. 71
211
c. 124
251
c. Ixxiii.
568
19 & 20 Vic. c. 113
68
c. 101
... 564, 566
c. 120
159,161,162,
c. 106
220, 270, 271
218,219, 220,
c. 118
190, 191, 192
235, 280
9 & 10 Vic. c. 23
584
20 & 21 Vic. C. 13
133, 218, 2-20
c. 25
603, 604, 605
c. 64
287
c. 93
585
c. 74
242
c. 95
385
c. Ixxxix
563
10 & 11 Vic. c. 17
... 214, 495
c. cxlviii.
... 496
c. 96
287
21 & 22 Vic. c. 27
259
11 Vic. c. 13 ...
248
c. 42
337
11 & 12 Vic. c. 83
112, 119, 123,
c. 57
241, 242, 245
125, 132, 134,
c. 77
281
135
c. 94
... 185, 186
12 & 13 Vic. c. 26
309
c. 109
96-102, 133
c. 49
133
22 Vic. c. 20 ...
68
C. 74
287
c. 34 ...
542
c. 101
385
22 & 23 Vic. c. 35
284
c. 106
222, 223, 535
C. 43
190
13 & 14 Vic. c. 17
309
c. 63
68
c. 60
218, 220, 287
c. Ixx.
496
c. 97
278
23 & 24 Vic. c. 14
10
c. 100
543
c. 15
278
14 & 15 Vic. c. 11
608
c. 16
252
c. 16
527
c. 29
606
c. 24
133
c. 53
126, 127, 132
c. 25
321
c. 68
526
c. 70
204
c. 106
204
c. 78
566
c. 124
242, 243, 244
c. 82
279
c. 126
166
c. 92
... 603, 604
c. 139
532
c. 94
150, 412-416
c. 145
... 232, 284
c. 104
186, 242
c. 150
248
c. cxlvi.
561, 566
c. 151
531, 532, 535,
15 & 16 Vic. c. 49
133
543, 547, 548,
C.51
... 184, 185,
585, 586
186, 187
24 Vic. c. 11 ...
68
c. 54
385
24 & 25 Vic. c. 40
... 407, 410
c. 76
577
c. 42
563, 566
c. clxiii.
... 150, 420,
c. 62
127
421, 422
c. 96
601
16 & 17 Vic. c. 34
10
c. 97
... 603, 608
c. 51
324
c. 100
540, 543, 608
c. 57
185
c. 105
... 242, 244
c. 70
.;. 220, 221
C. 109
495
c. 137
251
c. 130
533
17 & 18 Vic. c. 83
278
c. 131
242
c. 116
242
c. 134
222, 223, 224
c. 119
... 222, 223
25 & 26 Vic. c. 42
261
c. 125
259, 452, 577
c. 47
195
18 Vic. C. 32 ...
80, 150, 380,
C. 49
134
384
C. 52
245
XXV111
STATUTES CITED.
25 & 26 Vic. C. 53
10, 218, 220
25 & 26 Vic. c. 94
195
C. 61
210
C. 108
... 284, 286
C. 67
195, 218,294,
c. 112
251
454, 492
26 & 27 Vic. c. 46
566
C. 89
69, 227, 575
c. 49
133, 134-141,
c. 79
... 543, 550,
150
577, 587
CASES CITED.
ABBOTT v. Middleton, 144
Abraham v. Bubb, 160, 162
Ackroyd v. Smith, 508
Acraman and others v. Bates, 223
Acton v. Blundell, 20, 216, 445, 460,
492, 496, 501, 503, 599
Adams v. Andrews, 312, 313, 446
v. Lloyd, 598
Adshead v. Needham, 290
Alban's (Duke of St.) v. Skipwith,
234
Alexander v. Alexander, 309
Alivon v. Furnival, 69
Allan v. Gomme, 445
Allaway v. Wagstaff, 438, 468
Allen v. Hayward, 588
v. Ormond, 449
Alsop v. Yates, 582
Amies v. Skillern, 169
Amor v. Fearon, 590
Anderson v. Martindale, 306
Andrews v. Hulse, 177
v. Whittingham, 570
Anglesey (Marquis) v. Hatherton,
118, 179,
593, 594
Ap- Rice's case, 162
Archer v. James, 534
Arden v. Sullivan, 271
Argyle's (Duke of) case, 106
Arkwright v. Cantrell, 415, 430
v. Cell, 411, 438, 494,
504, 513
Arlett v. Ellis, 188, 330
Arnold v. Foot, 494
v. Stevens, 449
Ashmore v. Horton, 537
Ashworth v. Stanwix, 582, 585, 595
Askew's case, 537
Aspdin v. Austin, 291
Aston v. Aston, 160
Astry v. Ballard, 153, 160, 161, 287
Atkins v. Bordmann, 452
v. Davis, 516
Attersoll v. Stevens, 298
Att.-Gen. v. Borough of Birming-
ham, 579
Att.-Gen. v. Burridge, 94
v. Chamberlaine, 90, 96
v. Chambers, 90, 95, 577
v. Cleaver, 262
v. Corporation of Great
Yarmouth, 252
v. Duke of Marlborough,
158
v. Earl of Sefton, 324
v. Eastlake, 260, 577
v. Fullerton, 572
v. Hanmer, 279
v. Hotham, 181
v. Mathias, 189, 327, 328,
329, 333, 376, 377, 404,
406
v. Parmeter, 94
v. Rees, 90, 95
v. Vincent, 177
v. Wall, 411, 427
Bacon v. Smith, 259
Badger v. Ford, 188
Baer v. Martin, 505
Bagnall v. L. & N. W. Ry. Co. 205,
208, 597, 600
Bagot v. Bagot, 161, 163, 254, 578
Bailey v. Appleyard, 337
'scase, 538, 539, 580
v. Stevens, 188, 311, 327,
331, 508
Ballard v. Dyson, 506, 507
Banister's case, 248
Bamford v. Turnley, 262
Bank of Australasia v. Nias, 67, 70
Montreal v. Bethune, 69
XXX
CASKS CITED.
Bardcn v. Crocker, 452
Bard well v. Ames, 487
Barker v. Richardson, 446
Barlow v. Rhodes, 277
Barnes v. Mawson, 151, 189
v. Ward, 263, 264, 455
Barnsley Canal Co. v. Twibell, 213
Barrs v. "Lea, 294
Barry v. Barry, 260
Bartlett v. Phillips, 235, 246
Bartoushill Coal Co. v. McGuire,
584, 589
v. Reid, 582,
584, 589
Barwell v. Winterstroke, 607
Basset v. Reynolds, 381
v. Bassett, 160
Bassett's case, 309
Bastard v. Smith, 85, 328
Bateson v. Green, 188, 330, 331,
445, 456
Batten's case, 453
Battishill v. Reed, 338
Baxter v. Nurse, 581
v. Taylor, 452
Bayfield v. Porter, 212
Baylis v. Dineley, 218
Bealey v. Shaw, 494
Beardmore v. Tredwell, 261, 262
Beasley v. Clarke, 338
Beaufort v. Bates, 305
Beaufort (Uuke of) v. Swansea Har-
bour Trust.,
203, 205
v. Morris, 502,
579
T. Smith, 142
Beaven v. Macdonnell, 223
Beckwith v. Philby, 603
Bedford v. Bagshaw, 316
Bell v. Twentyman, 452
v. Wardell, 327, 328
Benge v. Swaine, 600
Bennett v. Allcott, 589
v. Griffiths, 577
Bennitt v. Whitehouse, S89, 577
Bensley v. Bignold, 564
Bcntley v. Bates, 170, 384
licresford v. Bacon, 422
Berkley v. Shafto, 476
Bessant v. Gt. Westn. Hy. 596
Bibby v. Carter, 474
Bidder v. Croydon, 579
Biddulph v. Atker, 339
Biggs v. Ld. Oxford, 160
Bill v. Sierra Nevada Lake W. &
Mining Co. 71
Binks v. South Y. & R. D. Navig.
Co. 265
Birch's case, 381
Bird v. Higginson, 446
v. Relph, 258, 260
Birmingham Canal Co. v. Lloyd,
577, 579
Bishop v. Church, 575
v. Goodwin and others, 300
of London T. Web, 160, 234,
. 250
v. North, 506, 510
of Salisbury's case, 256
of Winchester's case, 250
v. Knight, 172,
176,177, 178,
234, 574, 575
Blackett v. Bradley, 188, 189, 331,
334, 461, 593, 596
Blagrave v. Bristol Waterworks
Co. 599
Blake v. Everett 447
v. Lanyon, 590
v. Mid. Ry. Co. 585
v. Peters, 160
Blackball v. Nugent, 310
Blakesly v. Wieldon, 275, 293
Blanchard v. Baker, 487
v. Bridges, 338
Blanford v. Morrison, 564
Bleverhassert v. Homberstone, 181
Blewitt v. Tregonning, 118, 247,
327, 328, 329, 593, 594
Bligh v. Brent, 315
Blore v. Button, 587
Blundell v. Catterall, 91, 94
Blyth v. Topham, 263, 264
Boddington v. Abernethy, 172
Bodmin United Alines, 340, 381, 383,
384
Bolton (Lord) v. Tomlin, 270
Bond v. Rosling, 271
Bonomi v. Backhouse, 444, 468, 474,
570, 598
Booth v. Pollard, 274
Botting v. Martin, 269
Bourne v. Taylor, 172, 176, 579
Bowers v. Lovekin, 534, 538
Bowser v. Maclean, 579
Boyce T. Green, 314
Bradburne v. Botfield, 305
Bradshaw's Arbitration, 204
Brain v. Harris, 406, 569, 59S
Branley v. South E. Rail. Co. 65,
63
Branwell v. Penneck, 538
Brealey v. Collins, 273
Brealy's Est. 283
Brend v. Brend, 181
Briggs v. Lord Oxford, 254
Bright v. Walker, 4^7
CASES CITED.
XXXI
Briscoe v. Drought, 49 J, 505
Broadbent v. Imp. Gas Co. 261
v. liamsbotham, 492
v. Wilks, 172, 177, 328,
329, 593
Brown v. Capel, 557
Brown's case, 171
v. Chadwick, 150, 288
v. Rawlins, 328, 339
V. Robins, 468, 473, 474, 598
v. Thorpe, 275
v. Vermuden, 438
v. Whiteway, 322
v. Windsor, 597
Brunton v. Hall, 507
Bryan v. Clay, 260
v. Whistler, 313
Brydges v. Kilburn, 260
Brydon v. Stuart, 583
Buck v. Lodge, 274
Buck by v. Coles, 448
Buckland v. Gibbins, 578
Buckley v. Howell, 160, 284
v. Kenyon, 300
Buckworth v. Thirkell, 163
Bullard v. Harrison, 452
Bullen v. Denning, 144
Bunbury v. Hewson, 256, 260
Burdin's Will, 281
Burdon v. Barkus, 289
Burges v. Lamb, 160
Burgess and Forster's case, 181
Burgue v. De Tastet, 7 1
Burkenshaw v. Birmingham & Ox.
J. Hail. Co. 204
Burling v. Read, 446
Burmester v. Norris, 380
Burnard v. Haggis, 218
Burroughes v. Bayne, 599
Bute (Marquis) v. Thompson, 298
Butt v. Monteaux, 69
Butterfield v. Windle, 556
Butz v. Ihrie, 449
Buxton v. Hutchin, 438
v. Hutchinson, 528
Caldwall v. Baylis, 177
Caldn. Rail. Co. v. Sprot, 201, 202,
466, 473, 477,
480
: v. Belhaven, 468,
477
Campbell v. Leach, 307, 309
v. Allgood, 255
v. Wilson, 446
Caiman v. Bryce, 564
Cardigan (Earl) v. Armitage, 144,
154, 155
Carew v. Carew, 160
Carlyon v. Levering. 327, 328, 333,
494, 593, 594, 600
Came v. Mitchell, 274
Carr v. Clarke, 589
v. Foster, 338, 447, 592
Carrington v. Roots, 269
Carron Co. v. Maclaren, 69, 70
Carter v. Clay coll, 310
Gary v. Daniels, 487
Catchpole v. Ambergate Railway
Company, 597
Cavey v. Ledbitter, 262
Chadwick v. Trowcr, 458, 459, 573
Chambers's case, 281
Chance v. Dod, 181
Chandler v. Broughton, 588
Chapman v. Chapman, 385
Chase v. Sutton Manufac. Co. 448
Chasemore v. Richards, 216, 334,
445,491,492,503,570
Chetham v. Williamson, 312
Cholmeley v. Paxton, 284
Church v. the Enclos. Commis. 191
Churchman v. Harvey, 310
City of Berne v. Bank of Engld. 69
London v. Clerke, 339
Clarke v. Hart, 385
v. Rugge, 513
v. Roystone, 144
Clarkson v. Woodhouse, 331
Clavering v. Clavering, 143, ICO, 1G2,
322, 577
v. Reed, 576
v. Westly, 576
Clayton v. Corby, 188, 189, 327, 328,
331, 332, 593
v. Gregson, 145
Cleeve v. Mahany, 262
Clegg v. Clegg, 1 70
v. Dearden, 438, 503, 572
v. Edmondson, 577
Clements v. Hall, 382
v. Lambert, 452
Clifton v. Walmesley, 298
Clowes v. Beck, 212, 577, 579
Cocker v. Cowper, 313, 446
Codling v. Johnson, 334
Coe v. Lake Company, 453
Coffin v. Coffin, 260
Colchester (Mayor of) v. Lowton,
252
Coleman v. Foster, 312
- V. Riches, 589
Coles v. Trecothick, 587
Collier's case, 538
Collins v. Hopwood, 561
Commissioners Greenwich Hospital
T. BlackettUO
Comyn v. Kyneto, 570
XXXll
CASES CITED.
Conolly v. Lord Ely, 168
Constable v. Nicholson, 90, 328, 329,
333, 376, 594
Cooch v. Goodman, 269
Good v. Good, 65, 71
Cooke v. Whaley, 162
T. Winford, 160
Cockney v. Anderson, 71
Cooper v. Barber, 500
v. France, 169;
v. Hubbuck, 338
v. Marshall, 453
Cope v. Rowlands, 564
Copeland v. North E. Ry. Co. 597
v. Webb, 574
Coppinger v. Gubbins, 168, 253
Corby v. Hill, 264
Corning T. Gould, 449
Costerd's case, 256
Couch v. Steel, 582, 585
Cntss. of Plymouth v. Lady Archer,
160
Countess of Rutland's case, 246
Courteis v. Johnson, 315
Coventry v. Coventry, 310
Cowling v. Higginson, 507, 508
Cowper (Earl) v. Baker, 578, 579
Cox v. Bishop, 303
v. Mitchell, 6G
Crawshay v. Maule, 576
Crease v. Barrett, 313, 367, 377
v. Penprase, 575
v. Sawle, 376, 516, 520, 521,
598
Creswell v. Hedges, 598
Crocker v. Fothergill, 570
Croft v. London and North- Western
Railway Company, 472
Crommellin's Est. 310
Crosby v. Wadsworth, 270
Crossfield v. Morrison, 300
Cubitt v. Porter, 570, 571
Cuddon v. Morley, 161, 177
Cundell v. Dawson, 563, 564
Curling v. Flight, 316, 380
Curtis v. Daniel, 151, 177, 189, 328,
334
Dal*ton v. Reeve, 313
Dalton v. Gill, 177
v. South-East. Ry. Co. 585
Daly v. Beckett, 166, 307, 308
Dand v. Kingscote, 154, 506, 509,
598
Daniel v. Grade, 313, 570
v. North, 447
v. Wilkin, 142
Darcy (Lord) v. Askwith, 160,
287
Darvill v. Roper, 147, 150, 169
Darwin v. Upton, 446
Davies v. Baron Berick, 538
v. Davies, 160
v. Marshall,"^??
v. Stephens, 507
v. Williams, 453, 598
Davis v. D. of Marlborough, 158
v. Jones, 321
v. Morgan, 599
Davison, v. Gill, 209
Dawson v. Rish worth, 316
Dean & Ch. of Ely v. Warren, 1 79
& Chap, of Worcester, 237, 246
v. Tiiwaite, 576
Deane v. Rastron, 273
De Cosse Brissac v. Rathbone, 66
Deeble v. Linehan, 445, 489
Degg v. Midland Ry. Co. 584, 585,
589, 596
Denn v. Johnson, 176
Denys v. Shuckburgh, ] 70, 294, 570
Dickin T. Hamer, 160, 166, 287
Dickinson v. Grand J. Canal Co.
487, 491, 501
v. Valpy, 380
Dilling v. Murray, 487
Dimes v. Grand Junct. Canal, 181
Dobson v. Blackmore, 452
Dodd v. Acklom, 271, 272
- v. Holme, 4-15, 457, 474, 597
Doe v. Alderson, 367, 377, 570, 598
v. Bancks, 236
v. Galloway, 181
v. Calvert, 309
v.Clark, 171, 223
v. Collinge, 236, 237, 248
v. Davidson, 189
v. Dixon, 169
v. E. of Burlington, 253, 254
v. Giles, 233
v. Harvey, 310
v. Hellard, 189
v. Hutton, 163
v. Jenkins, 158
v. Johnson, 176
v. Johnston, 272
v. Keen, 169
v. Lock, 309, 512
v. Maisey, 233
v. Mayor of Manchester, 203
v. Moffatt, 271
v. Pearce, 388, 391, 407
v. Price, 301
v. Reed, 334
v. Rendle, 309
v. Robson, 309
v. Stephens, 253, 309
v. Taniere, 236
CASES CITED.
XXX1H
Doe v. Taylor, 169
v. Thomas, 24S
v. Weller, 309
v. Williams, 188
v. Wilson, 172
v. Wood, 570
Doran v. Carrol, 168, 253, 254, 260
Dovastau v. Payne, 209
Downes v. Craig, 260
Downshire v. Sandys, 160
Drury v. Macnamara, 271
v.Moore, 188]
Duberley v. Page, 189
Duckworth v. Johnson, 585
Dudden v. Guardians of Clutton
Union, 491
Dudley Canal Co. v. Grazebrook,
213,477
v. Warde, 317
Dugdale v. Kobertson, 293, 466
Duke of Argyle's case, 106
Beaufort v.Morris, 502, 579
v. Smith, 142
and Swansea
Harbour Trus-
tees, 203, 204,
205
Grafton v. Billiard, 262
Leeds v. Earl Amherst, 254
Marlborough v. St. John, 234,
247, 256
Northumberland v. Erring-
ton, 306
St. Alban's v. Skipwith, 234
Wellington Settled Est., 286
Duncan v. Louch, 449
Dunklee v. Wilton K. R. Co. 451
Durham and S. Ry. Co. v. Walker,
439,510,
600
Dutch West India Co. v. Moses, 69
Durham & Sund. By. Co. v. Wawn,
170
Dyce v. Hay, 327, 446
Dyer v. Sanford, 447
Dyke v. Taylor, 227
Eaden v. Firth, 261
Eads v. Williams, 273
Earl Cardigan v. Armitage, 144,154,
155
Cowper v. Baker, 578, 579
of'Falmouth v. Thomas, 315
Glasgow v. Hurlet Co. 289
462
Hopeton's case, 105
Lonsdale v. Curwen, 579
of Ripon v. Robart, 261
Rosse v. Wainman, 146, 148
arl Scarborough v. Savile, 144
East India Co. v. Kynaston, 289, 290,
577
aton v. Swansea Waterworks Co.
338
Edmonds v. Eastwood, 296
Sdward v. Trevellick, 582
Sdwards v. Dick, 236
v. Fidel, 328
v. Harben, 426
v. McLleay, 273
v. Millbank, 310
v.Rees, 298
Edwin v. Thomas, 328
Egremont v. Pulman, 452
Elliott v. Fitchburg Rail. Co. 492
Elliot v. North-Eastern Rail. Com.
201, 469, 471, 472, 478,
483, 596, 598
Ellis v. Schmoeck, 316
v. Sheffield Gas Consumers Co.
588
Elmhirst v. Spencer, 579
Elwell v. Crowther, 261, 445, 491,
492, 578
Ely (Dean & Ch. of) v. Warren, 179
Embleton v. Brown, 96
Embrey v. Owen, 486, 487, 494
Emmott v. Mitchell, 579
Emnor v. Barwell, 261, 492, 502,
577, 579
Ernest v. Vivian, 161, 260, 577, 578
Evans v. Merriweather, 487
Ex parte Grisewood re Mexican and
South American Co. 70
Hankey, 313
Harrison, 225
Perharn, 541
Richardson, 225
Spencer, 225
Tabbart, 220, 221
Vauxhall Co. 223
Watkins, 225
Fairley v. Tuck, 163
Fairman v. Oakford, 581
Falmouth (Earl) v. Thomas, 315
Farmer v. Rogers, 271
Farrant v. Lovel, 229, 578
Fawcett v. Cash, 581
Fenn's case, 340, 381
Fentiman v. Smith, 446
Fenton v. Trent and Mersey Navig.
Co. 477
Ferguson v. Witsell, 451
Ferrand v. Wilson, 160, 168
Field v. Beaumont, 577, 579
v. Lelean, 316
XXXIV
CASES CITED.
Finley v. Jawle, 537
Firmstone v. Whecley, 502, 572, 592,
598
Fitch v. Bawling, 328
Flamang's case, 579
Fletcher v. Gt. West. Rail. Co., 201,
202, 478, 483, 596
-- v. Peto, 584
v. Stevenson, 303
Flight v. Thomas, 338, 446
Flint v. Brandon, 274
Foley r. Addenbrooke, 299, 318, 319,
321
Folkhard v. Hemmett, 331
Ford v. Lacey, 153
Forster's Settlement, 283
Forster v. Taylor, 564
v. Stewart, 590
Fox v. Collyer, 237
v. Gaunt, 603
v. Mackreth, 273
Fraser v. Kershaw, 170
Frayes v. Worms, 65, 595
Freeman v. Phillips, 339
French v. Carhaal, 451
Friar v. Grey, 297, 593
Fury v. Smith, 278
Galgay v. G. S. & W. Rail. 492
Gardner v. Newburgh, 487
Garrick v. Earl Camden, 278
Garritt v. Sharp, 448
Gartli v. Cotton, 162, 168
Gayford v. Nicholls, 473, 588
Gent v. Harrison, 1 60
Gerrard v. Clifton, 298
Geswood's case, 538
Gibbs r. Merrill, 218
Gibson v. Wells, 168, 599
Gifford v. Ld. Yarborough, 90, 153
Gilbert v. Tomison, 422
Gill v. Pearson, 1 69
Gladstone v. Ottoman Bank, 65
Glasgow (Earl) v. Hurlet Co. 289,
462
Glave v. Harding, 452
Glover v. Dixon, 593, 594
Godfrey v. Watson, 230
Golden v. Taylor, 271
Goodenough's case, Ifi6
Goodman v. Whitcombe, 576
Goodtitle v. Alkcr, 209
Goodwin v. Noble, 224
Goodwyn v. Spray, 170
Gordon v. Rolt, 587, 588
Gore v. Perdue, 167
Gould v. Boston Duck Co. 487
Gov. of Harrow School v. Alderton,
254
Grafton (Duke of) v. Hilliard, 262
Grafton v. Armitage, 595
Graham v. Furber, 223
v. Van Diemen's Land Co.
226
Grant v. Norway, 589
Gray v. Cookson, 538
Greasly v. Codling, 452
Great Case of Mines, 85, 86, 87, 128,
129, 143, 151,
158, 411, 444
Gt. North. Ry. Co. v. South Yorks.
Ry. Co. 557
Greatrex v. Hayward, 494, 504
Green v. Sparrow, 574
Greene v. Cole, 167
Gregory v. Piper, 587, 588
Gresley v. Mousley, 161
Grey v. Duke of Northumberland,
172, 577, 579
Griffiths v. Gidlow, 584, 595
v. Rigby, 289, 303
Grimman v. Legge, 271
Grindall's case, 237
Grisewood's case, 70
Haas v. Choussard, 487
Haddon v. Ayers, 306
Haigh v. Jaggar, 579
Haines v. Taylor, 261
Hale v. Oldroyd, 449
Hall v. City of Lond. B. Com. 305
v. Hollander, 589
v. Lund, 446
v. Swift, 338, 599
Hamer v. Knowles, 469, 473
Hammond v. Broadstreet, 142
Hancock v. Wentworth, 448
Hankey's case, 313
Hanley v. Wood, 312, 313
Hanson v. Boothman, 297
v. Derby, 230
- v. Gardiner, 1 58
Harbidge v. Warwick, 446
Harcourt v. Pole, 310
Hardcastle v. South York Rail. Co.
263, 596
Harding v. Wilson, 506
Hardy v. Hollyday, 328
v. Reeves, 229
Harebottle v. Placock, 570
Hargreave's Estate, 218
Harnett v. Maitland, 167, 168
Harper v. Luffkin, 590
Harris v. Harris, 166
v. Ryding, 144, 154, 444,
459, 460, 466, 467, 471,
477, 598
Harrison's case, 225
CASES CITED.
Harrison v. Parker, 209
Hartley v. Cummings, 595
Hartshorn v. South Reading, 453
Harvie v. Rogers, 449
Hatherton v. Bradbourne, 294
Havens v. Middleton, 275
H award v. Bankes, 492
Hawkin's case, 340
Hawkins v. Carbines, 507, 508
Hay don's case, 171
Hayter v. Tucker, 251
Hay wood v. Cope, 272, 273, 276
Hazard v. Robinson, 451
Hellawell v. Eastwood, 320, 321
Hemmingway v. Fernandez, 299
Henderson v. Eason, 170
Hendrick v. Cook, 487
Henning v. Burnet, 445, 506, 507
Herlakenden's case, 160
Herne v. Benbow, 168, 599
Heslop v. Baker, 223
Hewit v. Isham, 314
Hewlins v. Shippam, 163, 268, 312,
446
Heydon v. Smith, 161, 177
Hide v.Thornborough, 457, 474, 597
Higgon v. Mortimer, 599
Higham v. Rabett, 507
Hill v. Wiggett, 181
Hilton v. Eckersley, 543
v. Giraud, 251, 314, 315
v. Lord Granville, 177, 188,
189, 327, 328, 331, 334,
461, 470, 471, 579, 594,
596
. v. Whitehead, 327, 462, 597
Hinchliffe v. Kinnoul, 154, 445, 447,
448
Hipkins v. Birmingham Gas Co. 599
Hoby v. Hoby, 166
Hodgkinson v. Ennor, 491, 492, 494,
579
Hodgson v. Johnson, 315
v. Little, 495
Hoffman v. Stowe, 506
Holden v. Weekes, 235, 237, 247,
248, 256, 287
Holds worth v. Goose, 227
Hole v. Barlow, 262
v. Sittingbourne and S. Rail-
way Co. 588
v. Thomas, 170
Holford v. Hankinson, 338, 596
Holmes v. Bell, 170, 576
v. Bellingham, 209
v. Buckley, 298
v. Clark, 587
- v. Elliott, 448
v. Seely, 514
Honeycomb v. Waldron, 278
Hood v. Easton, 230, 231, 574, 576
Hopkins v. Robinson, 177
Hopkinson v. Lee, 306
Hornsby v. Miller, 223
Horton v. M'Murtry, 581
v. Sayer, 304
Hounsellv. Smyth, 313, 263, 265,
594
Howell v. M'Coy, 487
Howley v. Jebb, 161
Hoyle v. Coupe, 177, 181
Hubbersty v. Ward, 589
Hudson v. Clementson, 568
Hughes v. Williams, 230, 575
Hull (Mayor of) v. Homer, 334
Hull and Selby Rail. 90, 153
Humble v. Hunt, 142, 181
Humphries v. Brogden, 201, 444,
456, 462, 465, 470,
474, 475, 502, 593
Humphries's case, 319
Hungerford v. Clay, 232
Hunt v. Browne, 168
v. Peake, 458, 468, 473, 474,
578, 597, 600
Huntley v. Russell, 234, 253, 256,
260, 599
Hutchinson v. Newcastle, 584
v. York, Newcastle, and
B. Railway, 595
Huttman v. Boulnois, 581
Hutton v. Warren, 144
In re Brealy's Est. 283
Burdin's Will, 281
Chambers, 281
Cromrnellhi Est. 310
Duke of Beaufort and Swansea
Harb. Trustees, 203, 204, 205
Duke of Wellington, Settled
Est. 286
Forster's Settlement, 283
Hull & Selby Rail. 90, 153
Humphries, 319
Madrid & Valencia Rail. Co.
69
Manson, 283
Mill, Bart. & Her Majesty's
Commis. of Forests, 188
Thompson's Est. 284
William Brown, 286
Willway's Trust, 286
Insole v. James, 492, 599
Irwin v. Simpson, 181
Isherwood v. Oldknow, 310
Jack v. Armstrong, 278
CASES CITED.
James v. Cochrane, 291, 297, 302
v. Emery, 305
- v. Plant, 277, 447, 448, 452
Jarmain v. Hooper. 587
Jefferson v. Bp. of Durham, 256
Jefferys v. Smith, 230, 259, 274, 576
Jeffries v. Williams, 453, 4G2
Jenkins v. Green, 238, 247
v. Harvey, 334
v. Broughton, 273, 316
Jervis v. Tayleur, 223
v. Tomkinson, 289, 298
Jesus College v. Bloom. 259, 574
John v. Jenkin, 313
Johnson v. Jordan, 486
v. Wyard, 212
v. Wyatt, 578
Jones v. Davis, 163
v. Giles, 556
v. Hill, 168, 599
v. Reynolds, 274, 570,571,
596
v. Ricketts, 163
v. Shears, 297
v. Williams, 453
Jordan v. Wiles, 219
Jowett v. Spencer, 298
Kavanagh v. Coal Mining Co. 447
Kemp v. Sober, 578
Keogh v. Collins, 578
Keppell v. Bailey, 291
Keyse v. Powell, 153, 155, 172
Kidgill v. Moor, 452
King v. M'Cully, 453
v. Smith, 230
Kingham v. Lee, 218, 578
Kinlyside v. Thornton, 599
Knight v. Moseley, 234, 246, 256,
258, 260
Knowle v. Harvey, 256
Knowles v. Dickinson, 543, 547
Lady Montague's case, 172
Lady Wilson v. Willes, 188, 327
Lancaster Canal Co. 223
Lancaster v. De Trafford, 276
v. Eve, 320
y. Greaves, 538, 588
Langford v. Woods, 597
Langton v. Hughes, 564
Lanyon v. Toogood, 315
Lansdowne v. Lansdownc, 259
Lawrence v. Todd, 537
I. a very v. Turley, 270
Law v. Hodson, 564
Lawton v. Lawton, 317
v. Salmon, 319
Lead Co. v. Richardson, 516
Lee v. Alston, 259
v. Stevenson, 506
Leeds (Duke of) v. Earl Amhorst,
254
Legge v. Legge, 161, 254
Lepur v. Wroth, 237
Lewis Bowles's case, 160
v. Branthwaite, 151, 153, 172,
175, 176, 579, 598
v. Hance, 385
Liford's case, 256
Liggins v. Inge, 447, 450
Limpus v. Lend. G. O. Co. 589
Linskill v. Read, 568
Listowel v. Gibbings, 150
Little v. Poole, 563, 564
Livett v. Wilson, 338, 446
Lockwood v. Wood, 328, 446
Lodie v. Arnold, 453
Lofthouse's case, 381
Login v. Princess of Coorg, 68
London (Bishop of) v. Web, 160.
234, 250
London (Mayor of) v. Parkinson,
562
London & North Western Rail. Co.
v. Ackroyd, 203, 483
London & W. L. & D. Co. v. Drake,
595
Lonsdale (Earl) v. Curwen, 579
Lord Bolton v. Tomlin, 270
Darcy v. Askwith, 160, 87
L. v. Duchess of Leeds, 157
Lonsdale v. Curwen, 290
Lovat v. Duke of Leeds, 160,
254
Mountjoy's case, 170
Norbury v. Alleyne, 578
Seymour v. Morrell, 272, 398
Waterpark v. Austen, 168
Lovat (Lord) v. Duchess of Leeds,
157, 100, 254
Love v. Bentley, 181
Lovell v. Smith, 447, 449
Lowe v. Carpenter, 338, 494
v. Govetr, 90, 91, 94, 153
Lowther v. Stamper, 577
Lucam v. Mertins, 232
Ludlow v. Dutch-Rhenish Ry. Co.
69
Lumley v. Gye, 590
Lushington v. Boldero, 160, 223, 255
Lutwich v. Piggot, 310
Lyddal v. Clavering, 218
v. Weston, 275
Lyde v. Russell, 321
Lynn Kegis v. Taylor, 422
Lyons v. Martin, 587
CASES CITED.
xxxvn
Macbryde v. Weekes, 574
M'Curdy v. Noak, 579
Macdonald v. Longbottom, 145
M'Donnell v. M'Kinty, 155, 156,
338, 597
M'Kenzie v. Sligo & S. Rail. Co. 69
Maclaren v. Stainton, 69
Madrid and Valencia Rail. Co. 69
M'Laughlin v. Pryor, 588
M'Manus v. Crickett, 589
M'Neillie v. Acton, 323
M'Swiney v. Haynes, 579
Maddon d. Baker v. White, 218
Madrid and Valencia Rail. Co. 69
Magor v. Chadwick, 494
Mallin's Settled Est. 284
Manning v. Smith, 451
Mansfield v. Crawford, 288
Manson's case, 283
Manwood's case, 153
Marchant v. Evans, 564
Mardiner v. Elliott, 176
Marfell v. Rudge, 278
Marker v. Kenrick, 571
Marlborough (Duke of) v. St. John,
234, 247,
256
Marquis Anglesey v. Lord Ilather-
ton, 118, 179
Bute v. Thompson, 298
Northampton's case, 310
Salisbury v. Gladstone,
172, 177, 179
Stafford v. Coyney, 506
Martin v. Cotter, 275
v. Gilham, 168, 599
v. Gt. Northern Ry. 583
v. Porter, 572
Martyn v. Williams, 594
Mason v. Hill, 445, 487, 488, 497
v. Lambert, 248
Mather v. Fraser, 319
Mayhew's case, 381
Mayor of Colchester v. Lowton, 252
Hull v. Homer, 334
London v. Parkinson, 562
Mellers v. Duke of Devonshire, 298
Mellors v. Shaw, 548, 586, 595
Mendell v. Delano, 449
Menvil's case, 163
Meredith v. Holman, 559, 560, 592
Merritt v. Parker, 487
Mersey Navig. Co. v. Douglas, 452
Metrop. Association v. Petch, 452
Metrop. Cemetery Co. v. Eden, 446,
507
Mexican and South Amerian Co. 70
Meynell v. Surtees, 274
Micklethwakev, MickleUiwaite, 160
Micklethwaite v. Winter, 147, 149,
195
Midgley v. Richardson, 509, 513,
592, 594
Miller v. Miller, 492
Millett v. Davey, 229, 231, 575
Mill, Bart, and Her Majesty's Com-
missioners of Forests, 188
Mills v. Funnell, 566
v. Ladbroke, 306
Mines R. Societies v. Magnay, 593
Minshall v. Lloyd, 321
Mitchell v. Dors, 158, 175, 578
Mold v. Wheatcroft, 213, 232, 514
Mollett v. Brayne, 269, 272
Monmouthshire Canal Company
v. Harford, 338
Montague's (Lady) case, 172
Moody v. King, 1 63
Moore v. Rawson, 449, 450
v. Webb, 494, 600
Morewood v. Wood, 328
Morgan v. Morgan, 313
v. Powell, 572, 596, 598
Morris v. Cannan, 225
v. Edgington, 513, 514
v. Glynn, 252
v. Morris, 160, 259
v. Rhydydefed Colliery Co.
308
v. Smith, 298
Mortham v. Hurley, 494
Mountjoy's (Lord) case, 170
Moyle v. Mayle, 254
Mulhallen v. Marum, 230, 576
Mundy v. Mundy, 166
Munroe v. Pilkington, 65,*66, 595
Murgatroyd v. Robinson, 494, 599
Murray v. Hall, 169
Muskett v. Hill, 571
Myers v. Perigal, 314, 315
v. Sari, 144, 145
Napier v. Bulwinkle, 447
Nash v. Peden, 452
Nat. Bank of St. Charles v. Do Ber-
nales, G9
Manure Co. v. Donald, 448
Natural G. M. Co. v. Donald, 337
Ncale v. Cripps, 578
Nelson v. Bridges, 274
Newcomen's case, 248
Newmarch v. Brandling, 513, 579
New River Co. v. Johnson, 216, 492
Newton v. Daly, 380
- v. Nancarrow, 385
Nicholls v. Diamond, 380
Nichols T. Parker, 339
CASES CITED.
Niekliu v. Williams, 570, 598
Norbury (Lord) v. Alleyne, 578
Norbury v. Meade, 450
North v. Coe, 177
North-E. Ry. Co. v. Crossland, 478,
v. Elliott, 201,
469,471,472,
478, 483, 596,
598
Northaru v. Hurley, 452, 599
v. Rowden, 571, 595, 599
Northam Bridge v. London & S.
Rail. 210
Northampton's (Marq. of) case, 310
Northey v. Johnson, 315, 382, 383
Northumberland (D. of) v. Erring-
ton, 306
Norton v. Cooper, 231, 575
Norway v. Rowe, 312, 385, 574, 577
Nowlau v. Ablett, 581
Ogden v. Grove, 513
Oldaker v. Hunt, 579
Omelaughland v. Hood, 232
O'Neill v. Longman, 541
Onley v. Gardiner, 338, 447
Orleans Navig. Co. v. New Orleans,
443, 446
Ormond v. Holland, 583
Ormonde v. Kynersley, 255, 578
Outram v. Morewood", 142
Owen v. Routh, 597
v. Van Uster, 380
Oxenden v. Compton, 220
v. Palmer, 212
Pacific Steam Navig. Co. v. Lewis,
556
Paddock v. Forrester, 338, 593, 594
Padwick v. Knight, 212
Paine v. Ryder, 191
Pallisterv. Mayor of Gravesend, 252
Parker v. Mitchell, 338, 450
Parottv. Palmer, 176, 177, 181, 259,
575
Parry v. Bowen, 309
Partridge v. Scott, 458, 474, 500
Paterson v. Wallace, 582, 585
Payne v. Mayor of Brecon, 252
v. Shedden, 338, 447
Peachy v. Duke of Somerset, 172, 173
Peachey v. Rowland, 588
Pearce v. M'Clenaghan, 448
Penfold v. Abbott, 305
Pennington v. Cardale, 236
v. Galland, 466
Penton v. Robart, 32 1
Penwarden v. Ching, 334
Perh am 's case, 541
Perkins v. Dunham, 449
Perrot v. Perrot, 160
Perry v. Attwood, 593
v. Fitzhowe, 267, 268, 312,
446, 453, 454, 598
Peter v. Daniel, 452, 579
Peyton v. Mayor of London, 457, 594
Phillips v. Ball, 181
- v. Jones, 298
Philps v. Clift, 582
Phipps v. Sculthorpe, 269
Pilling v. Armitage, 274
Pinn v. Davies, 168
Pinnington v. Galland, 513, 514
Pipe v. Fulcher, 142
Pit v. Lady Clavernith, 509
Place v. Jackson, 188
Plant v. James, 446, 506
v. Cotterill, 223
Plasterer's Co. v. Parish Clerks' Co.
338
Platt v. Johnson, 487
v. Powles, 1 62
Player v. Roberts, 173, 176, 578, 599
Plymouth (Countess) v. Lady Ar-
cher, 160
Polden v. Bastard, 452
Pollard v. Clayton, 579
Pollock v. Lester, 262
Pomfret v. Ricroft, 447, 452
Pope v. Biggs, 233
Portmore v. Bunn, 446
Potter v. Faulkner, 584, 585, 589
v. North, 177, 327
Potts v. Levy, 261
Powell v. Aiken, 232, 259, 503, 579
v. Jessop, 314, 315, 382
v. Rees, 571
Powys v. Blagrave, 255, 259, 260,
578
Pratt v. Brett, 579
Prendergast v. Turtou, 385
Prescott v. White, 505
Pretty v. Solly, 195
Price v. Griffith, 274
Priestley v. Fowler, 584
Prince's case, 111
Proctor v. Hodgson, 513
Pugh v. Vaughan, 255
Pulteney v. Warren, 574, 575
Purcell v. Nash, 288
Pyer v. Carter, 446, 452
Pyne v. Dor, 160
Quarrington v. Arthur, 299
Quartermainc v. Bittleston, 223
CASES CITED.
R v. Adams, 607
v. Aire and Calder Navig. Co.
214, 592
v. Alberbury, 145, 149
T. Attwood, 522
v. Baptist Mill Co. 516, 517
v. Barnes, 524
v. Barrett, 609
v. Batt, 607
v. Bedwell, 537
v. Bedworth, 522
v. Bell, 524
v. Bilston, 516
v. Birmingham Gas Co. 523
v. Bish. of Rochester, 519
v. Brettell, 146, 149, 516
v. Brown, 548
v. Bykerdike, 541
v. Chelsea Waterworks, 524
v. Chillesford, 589
v. Chorley, 338, 449
v. Crease, 376, 598
v. Cunningham, 51G
v. Dunsford, 145, 148, 516, 517
v. Earl of Pomfret, 521
v.Ellis, 179
v. Everist, 523
v. Fisher, 209
v. Foleshill, 523
v. Foster, 603, 605
v. Fraser, 608
v. Gee, 96
v. Gravesend (Inhabitants of),
564
v. Great West. Rail. Co. 524
v. Guest, 522
v. Haines, 609
v. Howell, 607
v. Joliffe, 334, 524
v. Kingswinford, 524
v. Leeds and Selby Rail. Com.
201, 214, 477
v. Lond. & B. & S. C. Rail. 524
v. Lond. & N. W. Rail. Co. 204,
205
v. Lord, 218, 538, 580
v. Lord Granville, 522
v. Lord Yarborough, 90, 177
v. Lowe, 609
v. M'Donald, 524
v. Mainwaring, 532, 545
v. Mersey Navig. 209
v. Metrop. Board of Works, 491,
503
v. Metrop. Railway Com. 204
v. Milton, 524
v. Musson, 96
v. Nicholson 519
T. Norris, 605
R. v. Northweald, Bassett, 163
v. Parrot, 522
v. Paynter, 521, 598
v. Pitt, 524
v. Pratt, 209
v. Price, 607
v. Rose, 526
v. Rowlands, 541
v. St. Agnes, 519
v. St. Austell Parish, 517
v. Saunders, 526
v. Sedgley (the Inhabitants of),
145, 146, 516
v. Thomas, 209, 607
v. Thompson's Est. 284
v. Todd, 521
v. Tomlinson, 523
v. Tremayne, 521
v. Trent & Mersey Navigation
Company, 517, 524
v. Trevenen, 602
v. Trustees of Duke of Bridge-
water, 522
v. Watson, 252
v. Webb, 540
v. Westbrook, 523
v. Whittingham, 606
v. Youle, 538
Race v. Ward, 328, 333, 445, 502
Raine v. Alderson, 151
Ramsden v. Hurst, 275
Rapson v. Cubitt, 588
Rawstron v. Taylor, 492
Ray v. Pung, 163
Read v. Victoria & Pirn. Railway
Co. 204
Redfern v. Smith, 259
Reed v. Don Pedro Mining Co. 276
v. Jackson, 339
Reignolds v. Edwards, 447
Rennie v. Robinson, 219
Reynolds & others v. Hall, 223
Richards v. Basset, 328
v. Noble, 259
v. Richards, 513
v. Rose, 598
Richardson v. Sydenham, 274
Richardson's case, 225
Rickctts v. Bell, 274, 293, 309
v. Bennett, 380, 382
- v. East & West India Docks
Company, 596
v. Salwey, 592
Rider v. Wood, 538
Ridgway v. Ilungerford Market Co.
581
v. Sneyd, 272
Hiley v. Baxendale, 584
Rimington v. Cannon, 156
xl
CASES CITED.
Ripon (Earl) v. Robart, 261
Ritger v. Parker, 448
Roberts v. Davcy, 598
v. Eberhardt, 170
v. Gt. West. Ry. Co. 594
v. Haines, 465, 471
-- v. Karr, 506
-- v. Roberts, 219
- v. Smith, 582, 588
Robertson v. St. John, 274
Roe v. Parker, 179
v. Prideaux, 309, 310
Roffey v. Henderson, 268, 312, 313
Rogers v. Brenton, 87, 89, 151, 313,
328, 333, 365, 366, 369,
370, 377, 378, 570, 594,
598
Rogers v. Taylor, 327, 333, 338, 445,
466, 474, 598
Rollason v. Leon, 271, 595
Rolt v. Somerville, 160, 255
Rooth v. Wilson, 594
Rosse (Earl) v. Warman, 146, 149
Rowbotham v. Wilson, 444, 461,
466, 469, 471
Rowden v. Maltster, 236
Rowe v. Brenton, 79, 112, 113, 114,
117,118,142, 177, 179, 181,
145, 153, 176, 313,328,364,
375, 571, 599.
Rowe v. Power, 166
Rowe v. Wood, 230, 575, 576
Rowls v. Gells, 517, 518
Rowlands v. Evans, Williams v.
Rowlands, 222
Royal Bank of Scot. v. Cuthbert, 69
Royden v. Moulster's case, 171, 172
Ruding v. Newell, 179
Russell v. Jackson, 514
Rutland's (Countess) case, 246
Rutland v. Greene, 173
Sadler v. Henlock, 596
Sakar's case, 256
Salisbury's (Bishop of) case, 256
(Marquis) v. Gladstone,
172, 177,
179
Sampson v. Easterby, 291, 452
v. Hoddinott, 491, 505, 600
Sandou v. Hooper, 229
Saunders's case, 160
Saville v. Saville, 218
Sayer v. Pierce, 570, 574, 575
Scarbovo' (Earl) v. Savile, 144
Schellinger v. Blackerby, 287
Scott v. Mayor of Manchester, 595
v. Nesbitt, 575
Scott v. Shephard, 261
v. Steward, 308
Scottish N. E. R. Co. v. Stewart, 204
Scrafton v. Quincey, 278
Scratton v. Brown, 153
Seaman v. Vawdry, 154, 275, 328
Searle v. Lindsay, 584
Senhouse v. Christian, 509
v. Harris, 295
Senior v. Ward, 548, 582, 585, 580,
595
Seymour (Lord) v. Morrell, 272,
398
Seymour v. Maddox, 582
Shakspear v. Peppin, 189, 332
Shannan v. Sanders, 534, 538
Sharp v. Hainsworth, 536
v. Wright, 289
Sharpe v. Hancock, 449
Sharrod v. Lond. & N. W. R. Co. 588
Shaw v. Stenton, 305, 592, 598
v. Thompson, 171
Shiels v. Great North. Rail. Co. 69
Shreve v. Voorhees, 487
Simmons v. Norton, 257
Simpson v. Dendy, 213
v. Togo, 65
v. Tellwright, 170
v. Clayton, 131
Sir A. Murray's case, 105
Sir E. Baker v. Metrop. Rail. 204
Sleddon v. Cruikshank, 315
Sliugsby's case, 306
v. Grainger, 144
Small v. Attwood, 273
Smallman v. Agborow, 219
- v. Onions, 170
Smart v. Jones, 144, 163, 268, 271,
311, 312, 313, 446
v. Morton, 465, 471, 598
Smiles v. Hastings, 514
Smith v. Cartwright, 567
v. Cooke, 575
v. Jeffryes, 144
v. Jeyes, 576
v. Kenrick, 438, 461, 492,
502, 573
v. Law, 218
v. Lloyd, 155, 156, 338, 597
v. Morris, 298
Smyth v. Carter, 260
Snelling v. Ld. Huntingfield, 269
Snow v. Cutler, 181
Soc. for Esta. Man. v. Morris Can. &
Bank. Co. 487
Solomon's case, 338
v. Vintners' Co., 444, 446,
473, 474, 475, 597
Sorsbie v. Park, 305
CASES CITED.
xli
South Metrop. C. Co. v. Eden, 600
Sparrow v. Oxford W. & W. Rail.
Co. 203
Spencer v. Scurr, 160, 162, 287, 288
Spencer's case, 225
St. Alban's (Duke) v. Skipwith, 234
Stafford (Marquis) v. Coyney, 506
Stampe v. Clinton, 256
Stanley v. White, 179
Stansell, v. Jollard, 457, 474
Stansfield v. Habergham, 158
v. Mayor of Port. 304, 321
v. Portsmouth, 594
Stedman v. Snlith, 570
Steven v. Child, 262
Stevens v. Guppy, 273, 274
Stewart v. Anglo Californian Gold
Mines Co. 385
v. Conyngham, 275
Stile's case, 438, 528
Stockman v. Whither, 256
Stockport Water Co. v. Potter, 494
Stokoe v. Singers, 449
Stone v. Whiting, 269
Stoughton v. Leigh, 160, 163, 166,
287
Stourbridge Can. Co. v. Earl of Dud-
ley, 213, 214
Strachy v. Francis, 256
Stratton v. Pettit, 144, 271
Street v. Roper, 181
Strogan v. Knowles, 597, 598, 600
Stuart v. Earl of Bute, 323
Suffield v. Brown, 446, 452
Sury v. Pigot, 451
Sutcliffe v. Booth, 494, 504, 506
Button's case, 383
Swindell v. Birm. Can. Co. 213, 592
Sybray v. White, 415, 594, 597
Sykes v. Dixon, 595
Tabbart's case, 220, 221
Talbot v. Ford, 297
Taplin v. Florence, 312
Tarrant v. Webb, 584
Taylor v. Bennett, 494
v. Crowland Gas Co. 69
v. Hampton, 449
v. Porter, 537, 538
v. Whitehead, 452
Thomas v. Clark, 379, 581
v. Cooke, 269, 271
v. Jones, 579
v. Oakley, 578, 579
v. Sorrell, 311
v. Thomas, 170
Thompson v. Leach, 220
v. Ross, 590
Thompson v. Watts, 166
Thomson v. Wilson, 269
Thorneycroft v. Crockett, 230
Thorogood v. Robinson, 571
Tickle v. Brown, 338
Tidball v. James, 169
Tipping v. Eckersley, 579
Todd v. Flight, 452
Todd v. Kerrich, 581
Toll v. Lee, 382, 383
Toppin v. Lomas, 269, 314
Tottenham v. Byrne, 155
Tourtellot v. Phelps, 487
Townley v. Gibson, 172, 174, 189
Tredinnick v. Oliver, 317
Tress v. Savage, 271
Tucker v. Newman, 452
Turner v. Harvey, 273
v. Hill, 380
v. Wright, 157,158
Twigg v. Fifield, 278
Twiss v. Baldwin, 487
Twort v. Twort, 170
Tyler v. Wilkinson, 446, 487, 498,
506
Tyringham's case, 188
Tyrone (Earl) v. Waterford (Mar-
quis), 324
Tyrwhitt v. Wynne, 179, 188
Tyson v. Smith, 328
Underbill v. Longridge, 546
United States v. Castillero, 54, 56,
61
Usticke v. Peters, 1 13
Vane v. Ld. Barnard, 160
Vaughan v. Hancock, 315
Vauxhall Co.'s case, 223
Vice v. Anson, 314, 382
v. Thomas, 20, 369, 370, 570,
574, 598
Vigers v. Pike, 273
Viner v. Vaughan, 160, 161
Vose v. Lancashire & Y. Ry. Co. 584
Waite v. North-East. Railway, 585
Waldo v. Waldo, 160, 255
Walker v. Bartlett, 379, 381, 597
v. Fletcher, 503
v. Jeffreys, 274
Wallis v. Harrison, 268, 312, 313,
513
Walmsley v. Milne, 329
Walsby v. Autrev, 541
Walter v. Selfe, 261, 262
v. S.-East. Railway Co. 584
Walters v. N. Coal Mining Co. 329
xlii
CASES CITED.
Ward v. Robins, 494, 600
v. Ward, 449
Wardle v. Brocklehurst, 277, 505,
506, 508
Warren v. Eudall, 255
Warriner v. Giles, 181
Washington County Mutual Insur.
Co. v. Henderson, 69
Waterpark (Lord) v. Austen, 168
Watkins's case, 225
Watson v. Bales, 379, 381, 385
v. Spratley, 251, 314, 315,
382
Weaver v. Floyd, 534
Webb v. Bird, 334, 447
Weekly v. Wildtnan, 508
Weekes v. Sparke, 328, 339
Weeks v. Howard, 494
Wee ton v. Woodcock, 321
Welcome v. Upton, 596
Welland Railway Co. v. Blake, 69
Wellington (Duke of) Settled Es-
tates, 286
Welsh Potosi Company, 381, 382
Wentworth v. Turner, 260
Whaley v. Brancker, 577, 578, 579
Whaley v. Laing, 492, 504
Whalley v. Ramage, 295
Wheal Lovell Mining Coinp., 380
Wheatley v. Chrisman, 506
Whetstone v. Wentworth, 219
White v. M'Cann, 254
v. Leeson, 281, 513
v. Lisle, 179, 328
v. Sayer, 330
Whitechurch v. Holworthy, 579
Whitfield v. Bewit, 160, 259, 287,
307, 322, 575
Whitlock's case, 310
Whitmore v. Mason, 227, 228
Whittle v. Frankland, 580, 581
Wickham v. Hawker, 512
Wiggett v. Fox, 584, 595
Wigmore v. Jay, 584
Wild v. Holt, 572
v. Milne, 169
Wilkes v. Broadbent, 329, 330
Wilkinson v. Haygarth, 327
v. Proud, 163, 313, 329,
570, 593, 594
Willett v. Boole, 537, 538
William Brown's case, 286
Williams v. Attenborough, 278
Williams v. Byrne, 581
v. Clough, 595
v. Day, 162
v. Groucott, 265
v. Jones, 519
v. St. George's Harbour
Company, 577
V.Williams, 160, 162
Williamson v. Baird, 492, 503, 504,
592, 600
Willway's Trust, 283, 284, 286
Wilson (Lady) v. Willes, 188, 327
Wilson v. Greenwood, 676
v. Stanley, 337, 339
. v. Willes, 332
v. Wilson, 446
Winchester's (Bishop of) case, 150
Winstone v. Linn, 582
Winter v. Loveday, 307, 310
Wise v. Metc.ilfe, 260
Wissler v. Hershey, 513
Wither v. D. & Ch. of Winchester,
256
Witherley v. Regent's Canal Co.
582
Withrington v. Banks, 229
Wood v. Copper Miners' Co. 297,
449
v. Fenwick, 537
v., Lake, 312
v. Leadbitter, 163, 212, 268,
313, 446, 447
v. Sutcliffe, 261, 494, 579
v. Waud, 487, 488, 490, 504
Woodrofie v. Daniell, 169
Worcester's (Dean and Chapter of)
case, 237, 246
Worthington v. Grinson, 447, 448,
452, 600
Wren v. Kirton, 278
Wright v. Snowe, 218
v. Howard, 445, 488, 497
- v. Williams, 338, 494, 600
Wyatt v. Harrison, 445, 450, 457,
473, 597
Wynne v. Tyrwhitt, 181
Wyrley Canal Co. v. Bradley, 213,
476, 477
Yates v. Hambly, 575
v. Mayor of Blackburn, 204
Young v. Spencer, 599
ADDENDA ET CORRIGENDA.
* .,,* The Reader is requested, before perusing this Volume, to insert in the
respective pages referred to, the following additions and corrections.
Page 20, line 6, after the word " Continent" refer to Lord Denman's
judgment in Acton v. Blundell, post, p. 501.
49, 11, for "fifth," insert '-fiftieth."
54:, note 10, add: United States v. Castillero, 2 Black. (U.S.) 17,
195, 335.
56 ) as to Mexican grants being acknowledged by the
to > United States of America, see United States v. Cas-
61 ) tillero, supra.
73, b, erase the comma.
e, for V. insert 5.
74, /, erase " Lib."
79, line 25, before the word " strong" insert the word "are."
90, note v, add: Constable v. Nicholson, 11 W.R. 698
111, line 23, add: "s" to the word "possession."
112, 22, after Geo. III. add: c. 60; also 42 Geo. III. c. 116.
118, note v, add: Blewitt v. Tregoning, 3 Ad. & Ell. 570.]
129, line 25, add: see post, p. 150.
144, note./; add: Smart v. Jones, 12 W.K. 430.
150, line 22, add: 26 & 27 Vic. c. 49, s. 37.
152, note d, for " post" insert " ante;" and add : post, p. 411.
154, q, add: 7 Will. IV. & 1 Vic. c. 28.
161, q, add: Ernest v. Vivian, 12 W.K. 298.
t, add: Bagot v. Bagot; Legge v. Legge, 33 L.J. Ch. 116.
163, f, add: Bagot v. Bagot, supra.
g, add : Smart v. Jones, 12 W.B. 430.
169, b, for 92 insert 29.
172, g, add: Lewis v. Brantluvaite, 2 B. & Ad. 437.
177, d, add: 9 Ho. Lords Ca. 692.
179, f, add: 9 Ho. Lords Ca. 692.
199, line 27, for " especial," insert " special."
201, note o, add: 32 L.J. Ch. 402.
211, for " danger," in marginal note, insert " damages."
214, line 24, instead of "in continuation," insert "caused in exe-
cution."
218, 17, insert " and at law he is answerable for a tort, Burnard
v. Haggis, 32 L.J. C. P. 189."
227, insert the page.
xliv ADDENDA ET CORRIGENDA.
Page 229, note c, insert 7 Will. IV. & 1 Vic. c. 28.
248, line 15, add : " s" to the word " cheek."
251, for " subject," in marginal note, insert " bequest."
254, note/ add : Legge v. Legge, 32 L.J. Ch. 1 16 j 33 L.J. Ch. 122.
260, d, add: Ernest v. Vivian, 12 W.R, 298.
261, line 4, erase "hands," and insert " lands."
note,/, add: Beardmore v. Tredmill, 3 Giff. 683.
, add: and peruse Eaden v. Firth, 1 Hem. & M. 573.
262, n, add : to "Bamford v. Turnley," 9 Jur. N.S. 377; and
to Beardmore v. Tredwell, add : 3 Giff. 683.
268, a, add : Smart v. Jones, 12 W.R, 430.
271, ff, also add: Smart v. Jones.
283, q, add : Willway's Trust, 32 L.J. Ch. 226.
284, e, also add: Willway's Trust.
289, w, for Bennill, read Bennitt.
293, , erase "see ante, 6."
294, /, add: Barrs v. Lea, 12 W.R. 525.
y, also add: Barrs v Lea.
311, a, 1
313' line 17 f add: Smart v - Jones, 12 W.R. 430.
note p, J
316, ff, before "Schmoeck," add: "Ellis v."
334, line 10, instead of " the law," insert " there was."
340, note b, for " Polwhale," write " Polwhele."
363, a, for " Smith," write " Smirke."
411, add: " s" to "custom" in the margin.
446, t, add: Smarts. Jones, 12 W.R. 430.
w, for "Pryer," write "Pyer;" and add : Suffield v.
Brown, 33 L.J. Ch. 249.
447, y, for " Darnel," write " Daniel."
c, add : Kavanagh v. Coal Mine Co. 14 Ir. Com. L. 82.
452, v, add: Polden v. Bastard, 32 L.J. Q.B. 572; Suffield v,
Brown, 33 L.J. Ch. 249.
454, q, instead of" 64," write 764.
503, it, add : Reg. v. Metropolitan Board of Works, 3 B. & S.
505, line 31, for " Simpson," write "Sampson."
507, 23, for " Barnet," write " Burnet."
508, note x, for " Stephens," write " Stevens."
577, h, add: "Ernest v. Vivian, 12 W.R. 298."
578, y, also add: Ernest v. Vivian.
584, line 29, add:" the fact of a workman being a fellow-labourer,
is a question for the jury, Fletcher v. Peto, 3 Fost. &
F. 368."
THE LAW
RELATING TO
MINES, MINERALS, AND QUARRIES.
CHAPTER I.
The value of Minerals in a Commercial point of view. Importance of Mining
Law to all classes. Explanatory observations showing the nature and extent of
the several topics discussed in this volume. Advances to Mines and Collieries
out of the Consolidated Fund. Income and Property-Tax. Indefeasible Title
25 tf 26 Vic. c. 53.
Mineral Statistics. Gold. Silver. Coals ivaste and exhatistion of coal-beds.
Copper. Iron. Lead. Tin. Earthy and other Minerals.
To the mineral productions of Great Britain and Ireland
must be mainly attributed tbat high commercial position
which the geographical extent and population of the two
islands would scarcely have led us to expect. With her coal
England has kept every part of the empire in vigorous
operation, and is provided with the means of enhancing
the domestic comforts of the people ; with her iron she has
promoted the Arts, added to her material strength, and
produced some of the finest pieces of mechanism the world
has ever seen ; and with her lead, tin, and copper, she has
increased the security, and supplied some of the most
urgent necessities of the nation. Conjointly, these several
productions have given her a commanding trade, rendered
her pre-eminence the envy of other nations; and aug-
B
2 THE LAW RELATING TO [CHAP. i.
merited the resources, stimulated the energies, and proved
a blessing to the great mass of the community. Scotland
and Ireland have contributed to these results.
importance The law relating to mines is therefore of universal im-
law^to'aH portance, but especially to those who are more immediately
classes. affected by it. To the Prince, as a large landed proprietor
and possessor of extensive mineral rights, to the Peer, as
hereditary counsellor of the Crown and final arbiter of
every litigated mineral question, to the Landowner, who
may be called upon at any moment to establish his rights,
resist obtrusion, abide by the acts of his agents, or to
give compensation for injuries done by them or his work-
men, to the Adventurer, who expends his capital in
exploring the hidden treasure of the soil, to the Mer-
chant, whose dealings must be conducted in accordance
with the peculiar laws and customs which prevail in par-
ticular districts, to the Manufacturer, who must not com-
mit a nuisance or suffer a dangerous vapour to continue
when bringing the rude matter into due form, and to the
Labourer and Artisan who, on the one hand, are subjected
to civil and criminal proceedings for acts of omission as
well as commission wilfully incurred in the course of their
employment, and on the other, have a remedy for all
grievances or injuries to which they may be subjected by the
oppression, negligence, or commands of their employers,
to one and all the law relating to mines is thus shown
to be of considerable importance. From those, indeed,
who have neither time nor capacity to enlarge their views
beyond the contracted sphere in which they are appointed
to move, a superficial acquaintance with the laws under
which they labour is all that can be expected ; but for those
on whom greater obligations or duties are imposed, and
whom an ignorance of the law upon this subject would ex-
pose to many penalties, a better knowledge of the law is
indispensable.
Explana- To carry out effectually the design of the work, the
tory obser- ., ,. , Al , A , , f ,
vations. writer soon drscovered that it would be necessary not only
to consult the Roman Code, but to refer generally to the laws
of other nations. Attention has therefore been directed to the
CHAP, i.] MINES, MINERALS, AND QUARRIES.
Roman Law, not because there is any obligation to recognize
that law, but because many of its principles form the foun-
dation of our own laws, and are frequently referred to and
acted upon by the judges in the absence of English autho-
rities (a). For instance, in this country, it not unfrequently
happens that the ownership in minerals is distinct from
the ownership in the soil, and that customary rights in
alieno solo are claimed, and occasionally indisputably es-
tablished. The same distinct rights were acknowledged
under the Roman Empire. Again, the law relating to
easements and servitudes (&) is based upon the Roman
Law, and in some recent cases, that law has been referred
to and adopted, more particularly on the right to streams
and water-courses (c).
Attention is then directed to the laws relating to the
principal States of Europe and America, on account of
the growing importance of the subject, arising out
of commercial treaties, the increasing mineral produc-
tions of foreign countries, and the consequent increase of
English capital embarked in exploring the mineral wealth
of foreign States (d). This, it is believed, is the first
attempt which has been made to bring before the English
lawyer the leading principles of foreign mining laws. In
addition to a summary of the laws of each State, there will
be found the French laws of 1791 () and 1810 (/) the
basis of the legislation on mines in the principal States of
Europe. And as it is desired to make this work practically
useful, the mode of obtaining Government grants for
exploring mines in the lands of private persons is pointed
out ; in some foreign countries the mode is complicated,
and we have consequently been the more explicit upon
this subject, especially as regards Germany () Post, p. 130.
(n) Post, p. 119. (q) Post, p. 143.
(o) Post, pp. 121, 128. (r) Post, p. 151.
6 THE LAW RELATING TO CHAP. i.
hold (s), we shall take into consideration every question
which has arisen out of the severance of the estates. The
law of dower (t), and the interests of all persons having
limited interests, or less than a freehold estate of in-
heritance, will be here reviewed ; and when open but not
unopened mines or quarries may be worked, it will be
shown what are open mines and quarries in a legal
sense (u). Copyholds (u) will be fully noticed, and the
Enfranchisement Acts (w), which so deeply affect mineral
rights. The ownerships in commons, and in waste and
enclosed lands, as well before as since the numerous Acts
passed for the enclosure of those landsj will be also con-
sidered. The right to minerals under railways, highways,
canals, and water-works, as affected by the Land Clauses
and Railway Clauses Acts (#), has rendered it necessary
to refer to the decisions respecting the right of the owners
of the soil to work the minerals not purchased by the com-
pany, the measure of support to be given to public works
from the soil and minerals beneath the soil, compensation
for severance of lands, assessment of damages, and other
similar questions of importance. The Statutory provisions
relating to the property of persons under disabilities : such
as, infants, married women, idiots and lunatics ; of persons
having a Statutoiy title : as assignees of bankrupts and offi-
cial liquidators ; and the rights of mortgagees, are reviewed.
A chapter is added on the right of Ecclesiastical, Elee-
mosynary, and Municipal, Corporations to work mines (?/).
Independently of mining, no treatise of which the author is
aware contains so complete a history of the laws relating
to Church property. In addition to common law rights,
the Statutoiy powers of all ecclesiastical persons, aggregate
and sole, are fully considered ; and the numerous recent
Acts passed for enabling them to grant mining leases (*),
and leases of water, way-leaves, and other easements, are
abstracted. The legality of bequests of mining property to
Charitable Institutions is then considered (a).
0) Post, p. 152. (a?) Post, p. 196.
(0 Post, p. 163. (/) Post > P- 234 -
() Post, p. 161. ( 2 ) Post, p. 238.
(t>) Post, p. 171. (a) Post, p. 250.
(w>) Post, p. 181.
CHAP, i.] MINES, MINERALS, AND QUARRIES. 7
Injuries to real property, as they affect mining, will be
discussed, under the titles of Waste and Nuisance (Z>) ;
and some useful cases are then referred to, respecting
the obligation of owners of mines to provide fences to
dangerous machinery and shafts, the neglect to do so con-
stituting, in the eye of the law, a nuisance.
Having reviewed the law respecting mineral rights as an
integral part of the law of real property, we have passed on
to the rights of owners to alienate their property (c). This
has led to a discussion on the rights of alienation in general,
and the principles especially which govern the law of ca-
veat emptor, deceit, and specific performance of mining
contracts, the statutory powers to alienate settled estates,
either wholly or in part, and to grant mining leases and
licenses (d). The law respecting mining leases, and the
construction of the clauses and covenants usually in them,
as well as leases granted under powers (0), form a subject
of special investigation. Licenses will be defined ; and the
distinction between a license and a lease, in its legal
bearings, shown (/). The sale of mining shares (#),
and the title to machinery and fixtures (A), and the law
respecting a devise of mines (i), will fall under the
chapter of alienations, and conclude that portion of the
work.
Title by prescription and custom (j) is one of the most
complicated branches of mining law, and the courts have
recently shown but little disposition to favour it. The
distinction between prescription and custom, the requisites
of a good title to either mode of acquiring mineral rights,
and the general effect of the Prescription Act, will be fully
investigated, and the most recent decisions reviewed. The
laws and customs of particular districts are then enume-
rated and explained (&).
The nature and character of Easements and Servitudes,
and the manner of acquiring and losing them, will form the
(6) Post, p. 253. 0) Post, p. 314.
(c) Post, p. 268. (/) Post, p. 317.
(d) Post, p. 280. (i) Post, p. 322.
fe) Post, p. 287. CO Post, pp. 327-339.
(/) Post, pp. 287, 311. (&) Post, pp. 340-439.
S THE LAW RELATING TO [CHAP. i.
subject of the next chapter. A concise and, it is hoped,
a clear summary of the leading principles in this branch
of law is given. The Roman Law forms the basis of our
propositions, and the masterly judgments of the American
lawyers will be freely and extensively quoted (I). From
these principles we have endeavoured to show that there
exist three important rights : the right of support which
an owner is entitled to receive for his mine from the ad-
joining, adjacent, and subjacent soil, and, vice versa, the
right of support which the owner of the soil and of buildings
is entitled to receive from the minerals beneath the soil,
when they are distinct properties (m), including support
to railways, public Avorks and canals, when constructed
in pursuance of Acts of Parliament (n) ; the right to
streams and water-courses, the diversion and defilement
of water, subterranean and spring water, artificial waters
and water-courses (o) ; rights of way and way-leaves (_p).
We shall be necessarily led to a consideration of the re-
medies for the violation of the easements and privileges
above specified. In some instances it will be said the right
is not a mere easement, but a right ex jure naturae ; we
have admitted this, and endeavoured to point out the dif-
ference (q).
The rating of mines, minerals, and quarries, materially
affects their value. The law, therefore, of poor's rates,
highway and county rates, and of tithes, and the prin-
ciples upon which they are applicable to mines, will be ex-
plained (r).
The numerous accidents which have recently occurred
in mines have compelled the Legislature to interfere so as to
prevent as far as possible their recurrence. Inspectors have
accordingly been appointed with full power to examine
and inspect mines, and to report on their state and condi-
tion; special and general rules for the regulation of the
mines and workmen are to be adopted; the employment
of boys and girls under certain ages, and in a capacity
for which they are unsuited, are prohibited; and more
(0 Post, p. 440. (p) Post, p. 506.
(m) Post, pp. 455, 472. (?) Post, pp. 46C, 473, 484, 486.
(n) Post, p. 476. (r) Post, p. 515.
(o) Post, p. 484.
CHAP, i.] MINES, MINERALS, AND QUARRIES. 9
shafts than one, except under special circumstances, for the
ingress and egress of the colliers are to be provided.
These and similar provisions for the better regulation and
inspection of mines have proved of considerable value to the
mining community, and are, in addition to the remedies
before justices for the recovery of wages, the punishment
of misdemeanors, and the illegal combination of masters
and workmen, considered in the nineteenth chapter (s).
Coal being a mineral, arid minerals in their raw state
comprised in our subject, the law of the coal trade in
London and the provinces has not escaped notice ().
Having collected the whole law upon mines, minerals,
and quarries, I have included, civil remedies, both at law
and in equity, as well as criminal offences (u) respect-
ing mineral property. I have shown what is the proper
remedy at law for the recovery of a mine or tin-bounds,
for the use and occupation of a mine, or minerals, for inju-
ries consequent upon the withdrawal of support to lands or
minerals, interference with the rights of another to water, and
to barriers, and the improper or wrongful working of mine-
rals (v). Equitable remedies in the form of obtaining relief
in mining contracts, accounts between partners, foreclosure
and redemption suits, and the appointment of receivers
and managers of mines where the joint owners cannot
agree on important questions respecting the management
of their property, will follow ; and the concurrent jurisdic-
tion of the Courts of Law and Equity in applications for
directing the inspection of adjoining mines, and the grant-
ing of Injunctions, will be explained. Under the heading
of civil remedies, will be discussed the law of masters and
workmen ; the right of action which a workman has
against his master, or the owner of the mine, for injuries
caused to the workman by or through the negligence of the
employer ; the remedy of the master against strangers for
causing the workman to leave his employment ; and the
remedies of strangers against masters for injuries caused
by the negligence of the workmen (w). And in order to
(a) Post, p. 529. (v) Post, p. 569.
(0 Post, p. 554. (w) Post, p. 580.
(M) Post, p. 601.
10 THE LAW RELATING TO [CHAP. i.
complete our review of civil remedies at law, a chapter
has been added on pleadings in actions relating to the
remedies provided for a breach of any contract or the vio-
lation of any right. Most of the cases referred to in this
chapter will contain forms of pleadings applicable to the
particular remedy sought (x).
We conclude the work by giving forms of leases and
licenses for searching for minerals and carrying on mining
operations (?/).
Advances As they cannot conveniently be inserted elsewhere, we
to mines , , . , , . . . '
and col- nere give place to some further particulars of mining. 1 he
iieriesout 5 &, 6 Vie. c. 9, s. 11, authorizes the Commissioners of
solidated Public Works to lend and advance money out of the Con-
solidated Fund, to any person or company, for the support
of any mine or colliery.
income- The income-tax is payable on all profits arising from
mines and quarries situate in the United Kingdom, and on
the profits of mines and quarries accruing to persons
resident in the United Kingdom from mines and quarries
situate out of the United Kingdom (z) ; and by 23 & 24
Vic. c. 14, s. 7, persons assessed to the duty chargeable
under schedule A of the 16 & 17 Vic. c. 34, in respect
of any mine or quarry, may appeal against any such assess-
ment to the commissioners for special purposes, instead of
the commissioners for general purposes,
inde- Under the 25 & 26 Vic. c. 53, being an Act to facilitate
feasible , ,, .
title. the prool ot title to, and the conveyance or, real estate, it
is provided by section 9 that it shall be stated, in the
description of the land to be so furnished by the applicant,
whether he does or does not claim to be entitled to all or
any part of the mines and minerals under such land, and
unless in such description mines and minerals shall be
expressly mentioned, it shall be the duty of the registrar to
have especial regard thereto, in all subsequent inquiries to
be made by him with respect to such lands, and in the
investigation of the title thereto, and also in the services of
such notices as are required by the statute.
Post, p. 592. (z) 16 & 17 Vic. c. 34.
Post, p. 610.
CHAP. I.]
MINES, MINERALS, AND QUARRIES.
11
There is one more topic which will add to the use- Mineral
fulness of the book the mineral statistics of the United statlstlcs '
Kingdom. Mr. Hunt, who has for some years f avoured us
with these statistics, informs us in his last publication, that
the amount and value of our mineral productions for the
year 1862-63 were as follows :
Oz. Value.
Gold
5,299 20.390
SQver .
686,123
189,041
Tons.
. 81,638,338
20,409,584
Copper
14,843
1,493,241
Iron (pig)
3,943,469
9,858,672
Lead
69,031
1,436,345
Tin
8,476
983,216
Zinc
2,151
50,548
Estimated value of other mi- )
nerals, about ... 5 .... ^,000,001
Total' .
. 36,441,037
If to the above amount is added the value of minerals
of which no returns have been received, we may safely
calculate the value of the mineral productions of the
United Kingdom for the year 1862-63 at not less than
40,000,000 sterling.
In 1861-2 the value of the discovery of gold amounted Gold.
to about 10,000 ; but in 1862-3, as above stated, to
20,000; and there are now contemplated, or in actual
operation, more than twenty workings which are called gold
mines. What may be the return from these mines is a
matter of conjecture ; but there is no doubt that it will be
far in excess of either of the preceding years. With the Silver.
exception of about 200 tons of ore, which, from its extreme
richness, may be classed as silver ore, the silver is extracted
from our lead. The before-mentioned return of silver ore
shows a steady increase on the few preceding years.
Mr. Hunt estimates that 83,635,214 tons of coal were Coals,
raised in the United Kingdom for the year 1861. Of this
amount Durham and Northumberland, with 271 collieries,
contributed 19,144,965 tons; Cumberland, with 28 col-
lieries, 1,255,644 tons; Yorkshire, with 397 collieries,
9,374,600 tons ; Derbyshire and Nottinghamshire, with
12 THE LAW RELATING TO [CHAP. i.
180 collieries, 5,116,319 tons; Leicestershire, with 11
collieries, 740,000 tons; Warwickshire, with 16 collieries,
647,000 tons ; Staffordshire and Worcestershire, with 580
collieries, 7,253,750 tons; Lancashire, with 373 collieries,
12,195,500 tons; Cheshire, with 39 collieries, 801,570
tons; Shropshire, with 66 collieries, 829,750 tons; Glou-
cestershire, Somersetshire, and Devonshire, with 112
collieries, 6,514,025 tons; Wales, with 398 collieries,
8,561,021 tons; Scotland, with 424 collieries, 11,081,000
tons ; and Ireland, with 46 collieries, 123,070 tons.
These returns show a large increase upon preceding
years. Thus in 1854, with 2397 collieries w r orked,
64,661,401 tons of coal were raised; in 1855, with 261o
collieries, 64,453,079 tons; in 1856, with 2829 collieries,
66,645,450 tons ; in 1857, with 2867 collieries, 65,394,707
tons; in 1858, with 2958 collieries, 65,008,649 tons; in
1859, with 2949 collieries, 71,979,765 tons; in 1860, with
3009 collieries, 84,042,698 tons ; and last year, with 3052
collieries, 83,635,214 tons. Of this vast quantity, only
7,560,758 tons of coal, 286,150 tons of coke, and 79,717
tons of patent fuel, were exported, the remainder being-
absorbed at home. This enormous amount of mineral
wealth was produced in the year 1861 by no less than
235,590 collieries.
Waste In 1861 it is stated in Mr. Hunt's returns, that nearly
of coals. two in i}lions and a half tons of coals were burnt or wasted
at the pits in Durham and Northumberland alone ; and in
1862, he says, "the amount of the coals burnt or wasted
at pits has been so differently represented, and appears so
uncertain, that it is for the present omitted." Attention
has since been directed to the rate at which the exhaustion
of our coal-beds is going on, as it becomes a really im-
portant element to determine with all possible accuracy the
extent to which this system of waste prevails on the sur-
face and in the mine. In Derbyshire about one-sixth of
the quantity of coal raised, which amounted last year to
4,534,800 tons, is left in the colliery, and this is not much
in excess of the quantity of coals lost in working the col-
lieries in other districts. In estimating, therefore, the rate
CHAI-. i.J MINES, MINERALS, AND QUARRIES. 13
at which we are draining our coal-fields of their fossil fuel,
we cannot take less than 90,000,000 tons as represent-
ing the annual rate of exhaustion.
Sir William Armstrong, at the last meeting of^the Bri- Exhaus-
tish Association, which was held on the 26th August, 1863, coai-beds.
expressed an opinion that although the entire quantity of
coal throughout the universe might be considered as
practically inexhaustible, the rate at which we are ex-
pending those seams of coal in the British isles, which
yield the best quantity of fuel at the least expense, cannot
be contemplated without anxiety. " The greatness of
England," he said, " much depends upon the superiority of
her coal in cheapness and quality over that of other nations ;
but we have already drawn from our choicest mines a far
larger quantity of coal than has been raised in all other
parts of the world put together, and the time is not remote
when we shall have to encounter the disadvantages of in-
creased cost of working and diminished value of produce.
Estimates have been made as to the time which would be
required to produce complete exhaustion of all the accessible
coal in the British islands. These estimates are extremely
discordant ; but the discrepancies arise not from any im-
portant disagreement as to the available quantity of coal, but
from the enormous difference in the rate of consumption,
at the various dates when the estimates were made, and
also from the different views which have been entertained
as to the probable increase of consumption in future years.
The quantity of coal worked from British mines has been
almost trebled during the last twenty years, and has pro-
bably increased tenfold since the commencement of the
present century ; but as this increase has taken place pend-
ing the introduction of steam navigation and railway transit,
and under exceptional conditions of manufacturing de-
velopment, it would be too much to assume that it will con-
tinue to advance witli equal rapidity. Assuming 4000 feet
as the greatest depth at which it will ever be possible to
carry on mining operations, and rejecting all seams of less
than two feet in thickness, the entire quantity of available
coal existing in these islands has been calculated to amount
14 THE LAW RELATING TO [CHAP. i.
to about 80,000 millions of tons, which at the present rate
of consumption would be exhausted in 930 years ; but with
a continued yearly increase of 2f millions of tons, it would
only last 212 years. It is clear that long before complete
exhaustion takes place, England will have ceased to be a
coal-producing country on an extensive scale compared
with other nations, especially the United States of America,
which possess coal-fields thirty-seven times more exten-
sive than ours. The question is, not how long our coal will
endure before absolute exhaustion is effected, but how long
will those particular coal-seams last, which yield coal of a
quantity and at a price to enable this country to maintain
her present supremacy in manufacturing industry. So far
as this particular district (Newcastle-on-Tyne) is con-
cerned, it is generally admitted that 200 years will be
sufficient to exhaust the principal seams, even at the pre-
sent rate of working. If the production should continue
to increase as it is now doing, the duration of those seams
will not reach half that period. How the case may stand
in other coal-mining districts I have not the means of
ascertaining ; but, as the best and most accessible coal will
always be worked in preference to any other, I fear the
same rapid exhaustion of our most valuable seams is every-
where taking place." These views of Sir William Arm-
strong may be taken to be substantially correct ; it is,
therefore, of the greatest importance that the amount of
waste now going on in the coal-fields should be ascertained
and prevented.
Copper. The number of copper mines worked in 1862 was 230 ;
of these, 201 are in Cornwall and Devonshire. For several
years there has been a steady decline in the rate at which
copper has been produced from our mines; the relative
produce of the last three years being as follows :
Ore. Fine copper.
Tons. Tons.
1860 .... 236,696 . . 15,968
1861 .... 231,487 . . 15,331
1862 .... 224,171 . . 14,843
Iron. The quantity of iron ore raised in 1862-3 is a slight
CHAP, i.] MINES, MINERALS, AND QUARRIES. 15
increase upon the preceding year. The number of blast
furnaces was 562.
The lead produced from our mines also shows a slight
increase : The number of lead mines worked in Cornwall
in 1861 was 44 ; in Devonshire, 11 ; in Cumberland, 79 ;
in Northumberland and Durham, 39 ; in Westmoreland, 6;
in Cheshire, 1 ; in Shropshire, 9 ; in Yorkshire, 30 ; in
Somersetshire, 4 ; and in Staffordshire, 1 ; making a total
for England of 224. As regards Wales, the county of
Cardigan had 43 lead mines at work in 1861; Carmarthen-
shire, 3 ; Denbighshire, 14 ; Flintshire, 48 ; Montgomery-
shire, 14 ; Merionethshire, 3 ; Pembrokeshire, 1 ; Radnor-
shire, 2 ; Carnarvonshire, 19 ; making a total for the prin-
cipality of 147. The Isle of Man, at the same time, had
5 lead mines worked; Scotland, 7; and Ireland, 7; making
a total for the United Kingdom of 390, as compared with
380, in 1860, and 264 in 1859. The quantity of ore
raised does not show a corresponding increase, having been
for England, 59,503 tons in 1861, against 59,352 tons
in 1860, and 63,753 tons in 1859; Wales, 24,219 tons in
1861, against 22,177 tons in 1860, and 20,656 tons in
1859; for the Isle of Man, 2717 tons in 1861, against
2810 tons in 1860, and 2464 tons in 1859 ; for Scotland,
1760 tons in 1861, against 1973 tons in 1860, and 1946
tons in 1859 ; for Ireland, 2403 tons in 1861, against 2392
tons in 1860, and 2457 tons in 1859; making a total (in-
cluding sundries) of 90,657 tons in 1661, against 88,744
tons in 1860, and 91,381 tons in 1859. The quantity of
metallic lead produced from this aggregate of ore was
65,634 tons in 1861, against 63,317 tons in 1860, and
63,233 tons in 1859, the estimated value being 1,445,255
in 1861, 1,412,760 in 1860, and 1,410,095 in 1859.
The decline of copper has been succeeded by an in- Tin
crease of tin. The tin ore (black tin) smelted during
1862 amounted to 14,127 tons, being an increase of up-
wards of 1000 tons upon the preceding year, and the
largest quantity which has ever been produced in any one
year, although there is reason to suppose that the yield
of the present year will be still larger. For the future we
16 THE LAW DELATING TO MINES, MINERALS, &c. [CHAI-. i.
can hardly venture an opinion, but it is a curious fact that
some of the richest copper mines in Cornwall are now
yielding large quantities of tin, and an inference has been
drawn from the present appearance of the mines, that
copper is fast giving place to tin; at any rate, a large in-
crease of tin may be expected in future years ; so that
whether copper be gradually reduced in quantity or not,
the yield of tin is decidedly on the increase. This is very
encouraging, when it is remembered that, for more than
2000 years (a), the counties of Cornwall and Devon have
yielded this valuable ore.
(a) Post, p. 72.
CHAP, ii.] CIVIL LAW. 17
CHAPTER II.
PROPERTY IN MINES, MINERALS, AND QUARRIES, UNDER
THE ROMAN EMPIRE.
The Civil Law in different States, and under Tiberius, Gratian, Valentinian,
Theodosius Maximus, and other Emperors. The Civil Law the Basis of
European Laws. Theory of the Law in the Middle Ages, and subsequent
Periods. Practical Adjustment of the Rights of the State and Private Rights.
UNDER the Roman Empire, all mines, minerals, and Civil law.
quarries, and indeed the soil itself, belonged to the State
by right of conquest. In some of the provinces, on the
allotment of the land to private individuals, the conquerors
reserved the right to the mines, minerals and quarries, for
the benefit of the State ; in other provinces mineral rights
were assigned to the allottees of the soil. Hence the pro-
perty in minerals became, not unfrequently, distinct from
the property in the soil.
But there was no universal law, and variations were
made in the laws of different provinces by successive em-
perors, as well for State purposes as for the advantage of
private persons. Tiberius appears to have claimed absolute
dominion over all mines and minerals whatever, but this
encroachment on the rights of private persons was aban-
doned by his successors, who only demanded a royalty.
" Potestas enim indagandi metalla etiam privatis erat, ante-
quam illis eandem ademerat Tiberius. Restituerunt deinde
iisdem hoc beneficium sequentes Principes, sed ea lege, ut
certum inde canonem metallicum solverent" (a).
Gratian gave a general permission to take minerals
from the lands of private persons on paying one-tenth to
the State, and another tenth to the owner : " Cuncti qui
per privatorum loca, saxorum venam laboriosis effossionibus
(a) Vide Heiueccii, Antiq. Rom. Syntag., App. lib. i. s. 112.
C
18 CIVIL LAW. [CHAP. n.
persequnntur, decimas fisco, decimas etiam domino repras-
sentent, coetero modo (propriis) suis desideriis vindi-
cando" (>). This decree was adopted by Yalentinian and
Theodosius Maximus.
T-he Emperor Valentinian, in order to promote the dis-
covery of gold, published a rescript which allowed the
fiscal, or State mines, to be worked by private persons for
their own advantage; the only conditions imposed being
the payment of a certain proportion of the produce, byway
of royalty, to the State, with a right of pre-emption by
the State, when the gold found exceeded a certain quantity.
The royalty was called canon metallicus, and was fixed by
Valentinian, as well as by Theodosius Maximus, at eight
scruples in gold dust (in balluca) for each icorker in the
mine. " Perpensa deliberatione duximus Sanciendum, ut
quicunque exercitium metallorum vellet affluere, is labore
proprio, et sibi et reipublicae commoda comparet. Itaque
si qui spon te conduxerint, eos laudabilitas tua octonos
scrupulos in balluca cogat exsolvere. Quidquid autem
amplius colligere potuerint, fisco potissimum distrahant,
a quo competentia ex largitionibus nostris pretia susci-
piant" (c).
Other provisions were made by subsequent emperors
which were at variance with the general principles of the
Roman law ; but the interpretation put upon them by the
Lombard glossographers made them applicable to all mines
and metals, and to all times and most countries; and
though it does not appear that they anywhere inculcated
the doctrine of an absolute property in the crown, they
certainly contributed to establish the principle that mines,
under some of the emperors, even in private lands, were
subject to certain public servitudes, and became a legiti-
mate source of public revenue (d).
A learned author has thus expressed himself on the
subject :
" Over the treasures concealed beneath the soil, the State
claimed the same paramount dominion as over the produce
(6) Vide Justin. Cod. Civ., lib. xi. ing provision in the Theodosian Code,
tit. 6. "De Metallariis." lib. x. tit. 19, 3.
(c) Vide Justin. Cod. Civ., lib. xi. (d~) Savigny's Eoman Law, vol. iv.
tit. 6 ; de Metallariis and correspond- p. 268, ed. Heidelberg, 1826.
CHAP. ii. J RIGHTS OF THE STATE. 19
of its surface. The mines and quarries throughout Italy
and the provinces were held in part by the Roman people,
and farmed, like the land-tax, to private speculators ; in part,
conceded to private proprietors, with the reserve of a fixed
rent for the privilege of working them. The former class
consisted principally of such works as were already at the
time of the Conquest either royal or public property. Thus
it was found in Macedonia that the State had monopolised
the gold and silver mines, and allowed its citizens to work
those of iron and copper only, and accordingly the same
distinction was maintained by the conquerors. The con-
tractors paid largely for their bargains, and in return the
State supplied them with the forced labour of condemned
criminals. In some cases it employed in this ignominious
service the reluctant hands of its legionary soldiers.
Finally, it bound the population in the mining countries to
the soil itself, and while it allowed them to profit by their
industry, forbade them to desert the works, or migrate in
search of other employment" (ean law. by a reference to the law which prevailed during the middle
ages. Two theories of property in mines, it is said, ap-
Middie pear to have been then in force (g). One regarded the
sovereign as the absolute proprietor of all mines, and recog-
nised no right in the landowner, except an indemnity for
damage done to the surface in pursuit of them ; the other
admitted the owner of the surface to be also entitled to the
mines beneath it, but gave to third persons the power,
founded on notions of public utility, to acquire an interest
in them when the owner was unable or unwilling to work
them.
Subsequent As the enjoyment of the mines had in both cases been
subject to regulations prescribed by the sovereign, who had
also very commonly established a claim to a tenth or other
proportion of the mineral produce, it is easy to perceive that
the two theories might in practice have nearly coincided;
and accordingly it has been, and still is, a disputed question
in some countries whether metallic mines do in point of law
Practical belong to the sovereign or the subject, but in the present
adjustment c j av f.] ie crown, in almost every State, is left in undisputed
of rights. J ' , "I
possession of the precious minerals, and in some of the
States to all minerals whatever, whilst the subject is entitled
to a concession from the government to search for the
minerals upon the payment of a royalty and upon fulfil-
ment of certain other prescribed terms and conditions ; but
the law is by no means uniform, and in England, Russia,
and some of the Belgian provinces the subject enjoys even
greater privileges than under the civil law, as will appear
from the subsequent pages of this treatise.
(#) Smirke's Stannaries, Vice v. Thomas, App. 80.
CHAP, in.] FOREIGN LAWS. 21
CHAPTER III.
THE LAW RELATING TO MINES, MINERALS, AND QUAERIES
IN FOREIGN STATES, INCLUDING FRANCE, BELGIUM,
GERMANY, PRUSSIA, AUSTRIA, SPAIN MEXICO,
ITALY, SARDINIA, PONTIFICAL STATES, RUSSIA, AME-
RICA.
SECTION I.
FRANCE.
Prerogative of the State Differences of Opinion Rights of the State and
Proprietor of the Soil defined Government Grants Mines and Quarries
Union of Several Grants Grants, whether Real or Personal Property Code
Napoleon Legal Decisions Laws of 1791, 1810, 1838, 1840, 1842, 1852,
1860 International Treaty, 1862, respecting Companies.
FRANCE is one of the countries in which eminent autho- Ancient
rities are divided as to the ancient property in mines. ^e ^ a t "i ie
Merlin, whose elaborate argument on the mines of Hainaut State.
contains a sketch of the history of the French Mines, can-
not find in the various ordinances of the Kings of France
any authority for supposing that they claimed a property
in the mines themselves. Merlin supposes the Kings of Differences
France to reason thus : " L'interet publique exige a la fois of Opmi0i
que des proprietes aussi precieuses ne soient mises en valeur
que sous 1'inspection de 1'autorite, et qu'elles ne demeurent
pas inutiles. Vous ne toucherez a ces mines qu'apres en
avoir obtenu de nous la permission, et en nous payant
telles redevances. Si vous n'exploitez pas, nous autoriserons
d'autres a le faire" (a). On the other hand, it has been
urged that the right, constantly exercised by the crown, to
authorize the entry of third persons into private lands, to
regulate and superintend the working of mines, and to
demand a tenth of the produce, is hardly distinguishable
(a) Questions de Droit, tit. Mines, torn. x. s. 4 ; vide Loisel. Institut.
Coutum., 1 vol. 282.
22
FRANCE.
[CHAP. in.
from a right of property. " Les rois se contenteront de
proteger les ouvriers, a qui ils avaient abandonne les mines
a la charge d'une redevance du dixieme du produit. L' ex-
ploitation moyeunant 'cette condition et celle de dedom-
mager les proprietaires des terraines, etait libre a tons les
Rights of
the State
and the
proprietor
defined.
Laws,
1810.
Govern-
ment
grants.
mneurs
Certain it is, that "either the crown, or its representatives
(the feudatoris and seigneurs haut-justiciers), had very gene-
rally adopted and appropriated the theory of a royalty in
mines when Charles VI., and Louis XI. in the fifteenth
century, resumed the rights of the monarchy, and promul-
gated a system for the government of the mines evidently
founded on the practice of Germany (c). Exemption from
certain taxes and servitudes; special protection of person
and property ; local and peculiar jurisdiction ; rights of
way and water ; supply of fuel and timber ; general liberty
of search in all uncultivated places ; and a right to w r ork
mines whenever the owner, after distinct notice, delayed
for three months to work them himself are the prominent
features of these edicts ; and, with some modifications in
later reigns, they formed the groundwork of the general
law of France, in the absence of local customs, iintil the
law of 28th of July, 1791, amended by the law of 21st of
April, 1810, declared that the mineral wealth of France,
below the depth of one hundred feet, was the property
of the nation, to be disposed of by the government in the
general interest of the public, and unfettered by any claim
from the owner of the soil (d}.
The law of April 21, 1810, divides mineral substances
into three classes (e\ mines, minerals, quarries (/), and it
declares (c/) the property in mines to be distinct from the pro-
perty in the soil, which cannot be explored without a con-
cession from the government (7t). The government has a
sovereign right to grant the concession to whomsoever it
(6) Regnault d'Epercy, Report on
the Law of 1791. See also Heron de
Villefosse, Richesse de Minerale de la
France, vol. i.
(c) Loisel. Inst. Gout, 1 vol. 280.
(d) Vide L'Art. II. de la Loi du 21
Avril 1810.
(e) Tit. l r , Art. 1, 2, 3, 4.
Cy) De la Propriete des Mines, par
Dalloz, edit. 18C2, torn. l re , p. 94.
(g~) Jurisprudence des Mines, par
Dupont. Paris, 1862.
(h) Art. 5, 7, 19. Vide Laws, App.
p. 39. Des Codes Fra^ais, par
Royer-Collard.
SECT, i.] ROYAL PREROGATIVE. 23
pleases foreigners as well as citizens (t) and acknow-
ledges no right of preference in the owner of the soil or
the first discoverer of the minerals, but the first discoverer
has, nevertheless, a claim upon the consideration and good
will (bienveillance) of the government. The concession is
granted, subject to the payment of a double tribute, that is
to say, a reclevance of ten francs per square kilometre,
and a proportional redevance, limited to a twentieth of
the net produce, and a "decime pour franc" (j). But
although the mineral substances which are considered as Mines,
mines cannot be explored even by the proprietor of the
soil except under a concession from the government,
quarries can be worked by the proprietor without any such Quarries,
permission, subject to certain regulations and restrictions
prescribed by the State (k).
Mines obtained by virtue of a concession may be let on
lease like other property, provided the term does not exceed
that of the original grant. They may also be sold, but
cannot be divided or sold in lots without the sanction of the
government; and they descend to the heirs of the legal
owner. Numerous decisions on these various characteristics
of property in mines have been pronounced in the French
courts of law, as will appear by reference to a recent work
on the subject (I).
By the law of 1810 the union of several concessions was Union of
prohibited without the previous sanction of the government,
and on the 23rd October, 1852, this prohibition was re-
enacted, and it was declared that all such reunions were
absolutely null and void, and worked a forfeiture of the
concessions; without prejudice, however, to the criminal
proceedings which the concessionnaires of the united mines
might render themselves liable to, under and by virtue of
the 414 and 419 articles of the penal code (in).
The proprietor of a concession seems to be regarded
(0 Tit. 3, sec. 2. (0 De la Propriety ties Mines, par
(j) Art. 33, 34, 35, 36 cle la Loi ) Belg.Judic. 1849 ; Pasier, 1850, (f) Annales des Mines, 4 seVie, t.
1,7. i. p. 812.
(g) Vide Code Civil, 625th and fol- (it) Repertoire de Jurisprudence,
lowing articles. par Merlin, torn. xx. p. 1858 ; La Nou-
(;) Annales des Mines, 3 C serie, t. velle Legislation, Favard, torn. iii. p.
xiv. art. 1-5, p. 557. 541; Des Mines, Dalloz, edit. 1802,
(*) Jurisprudence des Mines, par torn. 1.
Dupont, p. 62.
26 FRANCE. [CHAP. m.
ouvertes, au avec fosse et lumere, jusqu'a cent pieds de pro-
fondeur seulement.
Art. 2. Iln'est rien innove a 1'extraction de sables, craies,
argiles, marnes, pierres a batir, marbres, ardoises, pierres a
chaux et k platres, tourbes, terres vitrioliques, iii de celles
connues sons le nom de cendres, et generalement de toutes
substances, autres que celles exprimees dans 1'article pre-
cedent, qui coritinueront d'etre exploitees par les pro-
prietaires, sans qu'il soit necessaire d'obtenir aucune per-
mission. Mais, a defaut d'exploitation, de la part des pro-
prietaires, des objets enonces ci-dessus, et dans le cas seule-
ment de necessite pour les grandes routes ou pour des tra-
vaux d'une utilite publique, tels que ponts, cliaussees, canaux
de navigation, monumens publics, et tous autres etablisse-
mens et manufactures d' utilite generale, les dites substances
pourront etre exploitees, d'apres la permission du directoire
du departement (aujourd'hui, du prefet), donnee sur 1'avis
du directoire du district (aujourd'hui, du sous-prefet), par
tous entrepreneurs au proprietaires des dites manufactures,
en indemnisant le proprietaire, tant du dommage fait a la
surface, que de la valeur des matieres extraites, le tout de
gre a gre ou a dire d' experts.
Preference Art. 3. Les proprietaires de la surface auront toujours
propne- ] a preference, et la liberte d' exploiter les mines qui pour-
tors Of SOll. . r ii^-i
raient se trouver dans leurs tonds ; et la permission ne pourra
leur en etre refusee, lorsqu'ils la demandei-ont (v).
Terms of Art. 4. Les concessionnaires actuels ou leurs cessionnaires,
and regu- q u j on decouvert les mines qu'ils exploitent, seront main-
respecting tenus (w~) jusqu'au terme de leur concession, qui ne pourra
grants. exceder cinquante annees, a compter du jour de la publica-
tion du present decret.
En consequence, les proprietaires de la surface, sous pre-
texte d' aucune des dispositions contenues aux articles pre-
mier et second, ne pourront troubler les concessionnaires
actuels dans la jouissance de concessions, lesquelles subsis-
teront dans toute leur etendue, si elles n'excedent pas celle
qui sera fixee par 1'article suivant ; et dans le cas ou elles
(r) Vide Art. 1C de la Loi 1810, (?i>) Recueil de Questions de Droit,
post, p. 35. par Merlin, tit. Mines, 2.
SECT, i.] LAWS OF 1791. 27
excederaient cette etendue, elles y seront reduites par les
directoires des departemens, en retran chant, sur la desig-
nation des concessionnaires, les parties les moins esseutielles
aux exploitations.
Art. 5. L'etendue de chaque concession sera reglee sui-
vaiit les localities et la nature des mines, par les departe-
mens sur 1'avis des directoires de district; mais elle ne
pourra exceder six lienes carrees ; la liene qui servira de
mesure sera celle de vingt-cinq au degre, de deux mille
deux cent quatre-vingt-deux toises.
Art. 6. Les concessionnaires dont la concession a en pour
objet des mines decouvertes et exploiters par des pro-
prietaires, seront declius de leurs concessions, a moins qu'il
n'y ait eu, de la part desdits proprietaires, consentement
libre, legal et par ecrit, formellement confirmatif de la con-
cession; sans quoi, lesdites mines retourneront aux pro-
prietaires qui les exploitaient avant lesdites concessions, a la
charge par ces derniers de rembourser de gre a gre, ou a
dire d'experts, aux concessionnaires actuels, la valeur des
ouvrages et travaux dont ils profiteront. Quand le conces-
sionnaire aura retrocede au proprietajre, le proprietaire ne
sera tenu envers le concessionnaire, qu'au remboursement
des travaux faits par le concessionnaire, desquels le pro-
prietaire pourra profiler.
Art. 7. Les prorogations de concessions seront main-
tenues pour le tenue fixe par Fart. 4 on annulees, selon que
les mines qui en sont 1'objet, se trouveront de la nature de
celles mentionnees aux art. 4 et 6 du present decret.
Art. 8. Toute concession au permission d'exploiter une
mine, sera accordee par le departement, sur 1'avis du direc-
toire du district, dans 1'entendue duquel elle se trouvera
situee ; et ladite permission ou concession ne sera executee
qu'apres avoir ete approuvde par le Roi (aujourd'hui 1'Em-
pereur), conformement a Part 5, de la sect. 3 du decret du
22 decembre 1789 sur les assemblies administratives.
Art. 9. Tous demandeurs en concession (x) ou en per- Acts ne-
mission seront tenus de justifier de leurs facultes, des
moyens qu'ils emploieront pour assurer 1'exploitation, et de before
(x) Articles de la Loi 1810, post, pp. 34, 36. made.
28 FRANCE. [CHAP. in.
quels combustibles ils pretendront se servir, lorsqu'il s'agira
(Sexploitation d'une mine metallique.
Art. 10. Nulle concession ne pourra etre accordee qu'au-
paravant le proprietaire de la surface n'ait ete requis de
s'expliquer, clans le delai de six mois, s'il entend ou non
proceder a 1' exploitation, aux meme clauses et conditions
imposees aux concessionnaires. Cette requisition sera faite
a la diligence du procureur-syndic du departement oit se
trouvera la mine a exploiter.
Dans le cas d' acceptation par le proprietaire de la sur-
face, il aura la preference, pourvu toutefois que sa pro-
priete seule, au reunie a celle de ses associes, soit d'une
etendue propre a former une exploitation. Auront egale-
ment la preference sur tous autres, excepte les proprie-
taires, les entrepeneurs qui auront decouvert des mines, en
vertu de permission a eux accordees par 1'ancienne admi-
nistration, en se conformant aux dispositions continues au
present decret.
Art. 1 1. Toutes demandes en concessions ou permissions,
qui seront faites par la suite, seront affichees dans la chef-
lieu du departement, proclamees et affichees dans le lieu du
domicile du demandeur, ainsi que dans les municipalites
que cette demande pourra interesser ; et les dites affichees
et proclamations tiendront lieu d'interpellation a tous les
proprietaires (y).
Art. 12. Lorsque les concessions ou permissions auront
ete accordees, elles seront de meme rendues publiques par
(y) Get article et les precedens out dans le lieu du domicile du demandeur,
ete modifies en ces termes, par la loi et dans toutes les communes que la
du 13 pluviose, an 9 : demande pourra interesser.
Art. 1. A 1'avenir, lorsqu'une de- Art. 3. Les publications auront lieu
mande en concession de mines sera devant la porte de la inaison corn-
presentee au prefet du departement, mune, un jour de decadi ; elles seront,
il pourra 1'accorder deux mois apres ainsi que 1'affiche, repe'tees trois fois
la requisition faite au proprietaire de aux lieux indigues, de decade en de-
la surface, de s'expliquer s'il entend cade, dans le cours du mois qui suivra
ou non proce'der a 1'exploitation, aux immediatement la demande.
memes clauses et conditions imposees Art. 4. Le prefet ne prononcera sur
aux concessionnaires. Cette requisi- la demand en concession qu'un mois
tion sera faite a la diligence du prefet apres les dernieres affiches et publicn-
de departement. tions.
Art. 2. A cet effet, toutes demandes Art. 5. II est dcroge, quant aux
en concession seront publiees et af- dispositions cidessus, aux art. 10 et
fichecs dans le chef-lieu du de'parte- 11, du tit. 1" de la loi du 12-28
ment, dans celui de 1'arrondissement, juillet 1791.
SECT, i.] LAWS OF 1791. 29
affiches et proclamations, a la diligence du procureur-
syndic du departement.
Art. 13. Les limites de chaque concession accordee
seront traces sur un carte ou plan leve aux frais du con-
cessionnaire, et il en sera depose deux exemplaires aux ar-
chives du departement.
Art. 14. Tout concessionnaire sera tenu de commencer
son exploitation au plus tard six mois apres qu'il aura
obtenu la concession ; passe lequel temps, elle sera re-
gardee comme noil avenue et pourra etre faite a un autre,
a moins que ce retard n'ait une cause legitime verifiee par
le directoire du district, et approuvee par celui du departe-
ment.
Art. 15. Une concession sera annullee par une cessation
de travaux pendant un an, a moins que cette cessation n'ait
eu des causes legitimes, et ne soit approuvee par le direc-
toire du departement, sur Pavis du directoire du district,
auquel le concessionnaire sera tenu d'en justifier. II en
sera de meme des anciennes concessions maintenues dont
1'exploitation n'aura pas ete suivie pendant 'un an sans
cause legitime, legalement constatee.
Art. 16. Pourront les concessionnaires renoncer a la
concession qui leur aura ete faite, en donnant, trois mois
d'avance, avis de cette renonciation au directoire du de-
partement.
Art. 17. A la fin de chaque concession, ou dans le cas
d' abandon, le concessionnaire ne pourra deteriorer ses tra-
vaux ; en consequence, il ne pourra vendre que les mine-
raux extraits, les machines, batimens et materiaux existans
sur 1'exploitation, mais jamais enlever des echelles, etais,
charpentes au materiaux necessaires a la visite et a 1'exis-
tence des travaux interieurs de la mine, dont alors il sera
fait un etat double qui sera depose aux archives du de-
partement.
Art. 18. S'il se presente de nouveaux demandeurs en
concession ou permission pour continuer 1'exploitation d'une
mine abandonee, ils seront tenus de rembourser aux anciens
concessionnaires la valeur des echelles, etais, charpentes,
materiaux, et de toutes machines qui auront etc reconnues
30 FRANCE. [CHAP. in.
ncessaires pour 1' exploitation de la mine, suivant 1'estima-
tiou qui sera faite de gre a gre, sinon par experts, gens de
1'art, qui auront etc choisis par les parties, ou nommes
d' office.
Term of Art. 19. Le droit d'exploiter une mine accordee pour
grant. cinquante ans ou moins, expirant, les memes entrepreneurs
qui auront fait exploiter par eux-memes ou par ouvriers
a forfait, seront, sur leur demande, admis de preference a
tous autres, excepte cependant les proprietaires qui seront
dans le cas prevu par 1'art. 10, au renouvellement de la
concession, pourvu, toutefois, qu'il soit reconnu que lesdits
concessionnaires out bien fait valoir 1'interet public qui
leur etait confie ; ce qui aura lieu tant pour les anciennes
concessions maintenues, que pour les nouvelles.
Compen- Art. 20. Les concessionnaires actuels, au leurs cession-
sation to naires, qui out decouvert les mines qu'ils exploitent et qui
propne- * * -,,,.. . ,
tors of the sont maintenus aux termes de 1 art. 4, ainsi que ceux qui le
soil. seront conformement a 1'art. 6, seront obliges d'indemniser
les proprietaires de la surface, si fait n'a ete, et ce dans le
delai de six mois, a compter de la publication du present
decret.
Art. 21. L'indemnite dont il vient d'etre parle, ainsi que
celle mentionnee dans 1' article premier du present decret,
s'entend seulement des non-jouissances et degats occasiones
dans les proprietes par 1' exploitation des mines, tant a raison
des chemins que des lavoirs, fuites des eaux, et tout autre
etablissement, de quelque nature qu'il soit, dependant de
1' exploitation, sans cependant que ladite indemnity puisse
avoir lieu lorsque les eaux seront parvenues aux ruisseaux,
fleuves et rivieres.
Art. 22. Cette indemnite aura pour base le double de la
valeur intrinseque de la surface du sol qui s'era 1'objet des-
dits degats et non-jouissances. L'estimation en sera faite
de gre a gre ou a dire d' experts ; si mieux n'aiment les pro-
prietaires recevoir en entier le prix de leur propriete, dans
le cas ou elle n'excederait pas dix arpens, mesure de Paris, et
ce, sur 1'estimation qui en sera faite a 1' amiable ou a dire
d'experts.
Ai't. 23. Les concessionnaires ne pourront ouvrir leurs
SKCT. i.]_ LAWS OF 1791. 31
fouilles clans les enclos inures, ni dans les cours, jardins,
pres, vergers et vignes attenans aux habitations dans la dis-
tance de 200 toises, que du consentement des proprietaires
de ces fonds, qui ne pourront dans aucun cas etre forces a
le donner.
Art. 24. Les concessionaires demeureront civilement
responsables des degats, dommages et desordres occasioned
par leurs ouvriers, conducteurs, et employes.
Art. 25. Lorsqu'il sera necessaire a une exploitation
d'ouvrir des travaux de secours dans un canton ou exploita-
tion du voisinage, 1'entrepreneur en demandera la permis-
sion au directoire du departement, pouron que ce ne soit pas
pour extraire des mineraux provenans de ce nouveau can-
ton, mais pour y etendre des travaux necessaires, tels que
galerie d'ecoulement, chemins, prises d'eau, ou passage des
eaux, et autres de ce genre, a la charge de ne point gener
les exploitations y existantes, et d'indemniser les proprie-
taires de la surface.
Art. 26. Seront tenus les anciens concessionnaires main-
tenus, et cens qui obtiendront a 1'avenir des concessions au
permissions, savoir, les premiers dans six mois pour tout
delai, a compter du jour de la publication du present decret,
et les derniers dans les trois premiers mois de 1'annee qui
suivra celle oil leur exploitation aura commence, de remettre
aux archives de leur departement respectif, un etat double
detaille et certifie veritable, contenant la designation des
lieux ou sont situees les mines qu'ils font exploiter, la
nature de la mine, le nombre d'ouvriers qu'ils emploient a
1'exploitation, les quantites de matieres extraites; et si ce
sont des charbons de terre, ce qu'ils en font tirer par mois ;
ensemble les lieux ou s'en fait la principale consommation,
et le prix desdits charbons ; et de continuer a faire ladite
remise avant le premier decembre de chaque annee ; et de
joindre audit etat un plan des ouvrages existans et des tra-
vaux fait dans 1'annee.
Art. 27. Toutes contestations relatives aux mines, de-
mandes en reglement d'indemnite, et toutes autres sur
l'execution du present decret, seront portees pardevant les
juges de paix au les tribunaux de district, suivant 1'ordre de
32 FRANCE. [CHAP. in.
competence et d'apres les formalites prescrites par les
de'crets sur 1'ordre judiciare."
iron mines. On a vu plus haut, que, par 1'art. dernier de la loi du
12-28 juillet 1791, les tribunaux ordinaires etaient in-
vestis du droit de juger toutes contestations relatives aux
mines. Mais cette disposition ne devait pas etre entendue
trop litteralement ; et c'etait, par exemple, une grande
erreur d'en conclure que, s'il s'etait eleve des reclamations
de la part des proprietaires voisins d'une mine de fer, centre
1'etablissement d'uri lavoir ou patouillet, pour 1'exploita-
tion, autorisee par le gouvernement de cette mine, les
tribunaux eussent ete competens pour statuer sur ces re-
clamations (2-).
Le droit accorde aux proprietaires par 1'art. 1 du tit. 1
de la loi de 1791, d' exploiter a tranches ouverte, ou avec
fosse et lumiere jusqu'a cent pieds de profondeur, les mines
qui se trouveront dans 1'etendue de leurs proprietes, devant
etre subordonne a 1'utilite generale, ne pourra s'exercer
pour les mines de fer que sous les modifications con-
tenues sous tit. 2 de la meme loi de 1791 (a).
Laws of L a loj d u 21 avril 1810 a etabli sur les mines, des
regies presque entierement nouvelles. Voici comme elle
est
" Tit. 1. Des mines, minieres et carrier es.
Art. 1. Les masses de substances minerales ou fossiles
renfemiees dans le sein de la terre, ou existantes a la sur-
face, sont classees, relativement aux regies de 1' exploitation
de chacune d'elles, sous les trois qualifications de mines,
minieres et carrieres.
Mines. Art. 2. Seront considerees comme mines celle connues
pour contenir en filons, en couches, ou en amas, de 1'or, de
1'argent, du platine, du mercure, du plomb, du fer en filons
ou couches, du cuivre, de 1'etain, du zinc, de la calamine, du
bismuth, du cobalt, de 1' arsenic, du manganese, de I'antimoine,
du molybdene, de la plombagine au autres matieres metal-
liques, du soufre, du charbon de terre on de pierre, du bois
(z) Tit. 4. Merlin, Repertoire de (a) Tit. 2, Art. 1. Des Mines de
Jurisprudence, torn. xx. p. 163. Fer. Merlin, torn. xx. p. 161.
SECT, i.] LAWS OF 1810. 33
fossile, des bitumes, de 1'alun, et des sulfates a base metal-
lique.
Art. 3. Les minieres comprennent les minerais de fer Minerals,
dits d' alluvion, les terres pyriteuses propres a etre conver-
ties en sulfate de fer, les terres alumineuses et les tourbes.
Art. 4. Les carrieres renfermant les ardoises, les gres, Quarries,
pierres a batir et autres, les marbres, granits, pierres a
chaux, pierres a platre, les pouzzolanes, le trass, les basaltes,
les laves, les marnes, craies, sables, pierres a fusil, argiles,
kaolin, terres a foulon, terres a poterie, les substances ter-
reuses et les cailloux de toute nature, les terres pyriteuses
regardees comme engrais, le tout exploite a ciel ouvert ou
avec des galeries souterraines.
Tit. 2. De la propritie des mines.
Art. 5. Les mines ne peuvent etre exploiters qu'en vertu Govem-
d'un acte de concession delib^re en conseil d'etat.
Art. 6. Get acte regie les droit des proprietaires de la
surface sur le produit des mines concede es.
Art. 7. H donne la propriete perpetuelle de la mine, la-
quelle est, des lors, disponible et transmissible comme tous
les autres biens, et dont on ne peut etre exproprie que dans
les cas et selon les formes presents pour les autres pro-
prietes, conformement au code civil et au code de proce-
dure civile. Toute-fois une mine ne peut etre vendue par
lots ou partagee, sans une autorisation prealable du gou-
vernement, donn6e dans les memes formes que la conces-
sion.
Art. 8. Les mines sont immeubles.
Sont aussi immeubles, les batimens, machines, puits,
galeries et autres travaux etablis a demeure, conformement
a 1'art. 524 du code civil.
Sont aussi immeubles, par destination, les chevaux, agres
outils et ustensiles servant a 1'exploitation.
Ne sont consideres comme chevaux attaches a 1'exploita-
tion que ceux qui sont exclusivement attaches aux travaux
int^rieurs des mines.
Neanmoins, les actions ou int^rets dans une societe ou
entreprise pour 1'exploitation des mines, seront reputes meu-
bles, conformement a 1'art. 526 du code civil.
D
34 FKANCE. [CHAP, in
Sont meubles, les matieres extraites, les approvisionne-
mcns et autres objets mobiliers.
Acts ueces- Tit. 3. Des actes qui precedent la demande en concessio
sary to be 7
done before des mines.
is Sect. 1. De la recherche et de la decouverte des mines.
Art. 10. Nul ne peut faire des recherches pour decou-
vrir des mines, enfoncer des sondes ou tarrieres sur un ter-
rain que ne lui appartient pas, que du consentement du
proprietaire de la surface, ou avec 1'autorisation du gou-
vernement, donnee apres avoir consulte 1' administration des
mines, a la charge d'une prealable indemnite envers le pro-
prietaire et apres qu'il aura ete entendu.
Art. 11. Nulle permission de recherches ni concessions
de mines ne pourra, sans le consentement formel du pro-
prietaire de la surface, donner le droit de faire des sondes et
d'ouvrir des puits ou galeries, ni celui d'etablir des machines
ou magasins dans les enclos mures, cours ou jardins, ni
dans les terrains attenant aux habitations ou clotures
murees, dans la distance de cent metres desdites clotures ou
des habitations.
Art. 12. Le proprietaire pourra faire des recherches, sans
f ormalite prealable, clans les lieux reserves par le precedent
article, comme dans les autres parties de sa propriete ; mais
il sera oblige d'obtenir une concession avant d'y etablir une
exploitation. Dans aucun cas, les recherches ne pourront
etre autorisees dans un terrain deja concede.
Grants to Sect. 2. De la preference a accorder aux concessions.
signers. ^^ ^ Tout Fraii9ais ou tout etranger naturalise ou
non en France, agissant isolement ou en societe, a le droit
de demander et peur obtenir, s'il y a lieu ? une concession de
mines.
Art. 14. L'individu ou la societe doit justifier des
facultes necessaires pour entreprendre et conduire les tra-
vaux, et des moyens de satisfaire aux redevances, indem-
nites qui lui seront imposees par 1'acte de concession.
Art. 15. II doit aussi, le cas arrivant de travaux a faire
sous les maisons ou lieux d'habitation, sous d' autres ex-
ploitations ou dans leur voisinage immediat, donner caution
de payer toute indemnite, en cas d'accident : les demandes
SECT, i.] LAWS OF 1810. 35
ou oppositions des interesses seront, en ce cas, partees devant
nos tribmiaux et cours.
Art. 16. Le gouvernement juge des motifs on considera-
tions d' apres lesquels la preference doit etre accordee aux
divers demandeurs en concession, qu'ils soient proprietaires
de la surface, inventeurs ou autres.
En cas que 1'inventeur n'obtienne pas la concession d'une
mine, il aura droit h une indemnite de la part du conces-
sionnaire ; elle sera reglee par 1'acte de concession.
Art. 17. L'acte de concession fait apres 1'accomplisse- Eights of
ment des formalites prescrites, purge, en faveur du conces- sm
sionnaire, tons les droits des propridtes de la surface et des
inventeurs, et de leurs ayant droit, chacun dans leur ordre,
apres qu'ils ont et6 entendus ou appeles legalement (ainsi
qu'il sera ci-apres regie).
Art. 18. La valeur des droits resultant en faveur du pro-
prietaire de la surface, en vertu de 1'art. 6 de la presente
loi, demeurera reunie a la valeur de ladite surface, et sera
affected avec elle aux hypotheques prises par les creanciers
du proprietaire.
Art. 19. Du moment ou une mine sera concedee meme
ou proprietaire de la surface, cette propriete sera distinguee
de celle de la surface, et desormais consideree comme pro-
priete nouvelle, sur laquelle de nouvelles hypotlieques pour-
ront etre assises, sans prejudice de celles qui auraient 4 te ou
seraient prises sur la surface et la redevance, comme il est
dit a 1'article pre"ce"dent.
Si la concession est faite au proprietaire de la surface,
ladite redevance sera evaluee pour 1'execution dudit article.
Art. 20. Une mine concedee pourra etre affectee par
privilege, en faveur de ceux qui, par acte public et sans
fraude, justifieraient avoir fourni des fonds pour les re-
clierches de la mine, ainsi que pour les travaux de construc-
tion ou confection de machines necessaires a son exploita-
tion, a. la charge de se conformer aux art. 2103 et autres
du code civil, relatifs aux privileges.
Art. 21. Les autres droits de privilege et d'hypotheque
pourront etre acquis sur la propriete de la mine, aux termes
et en conformite du code civil, comme sur les autres pro-
prietes immobilieres.
D2
36 FRANCE. [CHAP. in.
Tit. 4. Des concessions.
How to g ec t. i. De 1'obtention des concessions.
obtain a .. _ _. , , . . .
grant. Art. 22. La demande en concessions sera laite par voie
de simple petition addressee au prefet, qui sera tenu de la
faire enregistrer k sa date sur un registre particulier, et
d'ordonner les publications et affiches dans les dix jours.
Art. 23. Les affiches auront lieu pendant quatre mois,
dans le chef-lieu du departement, dans celui de Tarrondisse-
ment oil la mine est situee, dans le lieu du domicile du
demandeur, et dans toute les communes dans le territoire
desquelles la concession peut s'etendre : elles seront inserees
dans les journaux de departement.
Art. 24. Les publications des demandes en concession de
mines, auront lieu devant la porte de la maison commune et
des eglises paroissiales et consistoriales, a la diligence des
maires, a Tissue de 1'office, un jour de dimanche, et au moins
une fois par mois pendant la duree des affiches. Les maires
seront tenus de certifier ces publications.
Art. 25. Le secretaire g^neVal de la prefecture delivrera
au requerant un extrait certifie de 1'enregistrement de la
demande en concession.
Art. 26. Les demandes en concurrence et les oppositions
qui y seront formees, seront admises devant le prefet
jusqu'au dernier jour du quatrieme mois, a compter de la
date de 1'affiche : elles seront notifiees par actes extrajudi-
ciares a la prefecture du departement, ou elles seront en-
registries sur le registre indigue a 1'art. 22. Les opposi-
tions seront notifies aux parties in te" res sees; et le registre
sera ouvert a tous ceux qui en demanderont communica-
tion.
Art. 27. A Pexpiration du delai des affiches et publica-
tions, et sur la preuve de raccomplissement des formalites
portdes aux articles precedens, dans le mois qui suivra, au
plus tard, le prefet du departement, sur 1'avis de 1'iiige-
nieur des mines, et apres avoir pris des informations sur les
droits et les facultes des demandeurs, donnera son avis et
le transmettra au ministre de 1'interieur.
Art. 28. II sera defmitivement statue sur la demande en
concession par un de"cret delibe're en conseil d'etat.
Jusqu'a 1'emission du de"cret, toute opposition sera ad-
SECT, i.] LAWS OF 1810. 37
missible devant le ministre de I'interieur ou le secretaire
general du conseil d'etat : dans ce dernier cas, elle aura
lieu par une requete signee et presentee par un avocat au
conseil, comme il est pratique pour les affaires conten-
tieuses ; et, dans tous les cas, elle sera notifiee aux parties
interessees. Si 1'opposition est motivee sur la propriete de
la mine acquise par concession ou autrement les parties
seront renvoye'es devant les tribunaux et cours (V).
Art. 29. L'etendue de la concession sera determined par
1'acte de concession (c) : elle sera limitee par des points fixes,
pris a la surface du sol, et passant par des plans verticaux
menes de cette surface dans I'interieur de la terre k une
profondeur indefinie, a moins que les circon stances et les
localites ne necessitent un autre mode de limitation.
Art. 30. Un plan regulier de la surface, en triple expe-
dition, et sur une echelle de dix millimetres pour cent
metres sera annexe a la demande. Ce plan devra etre
dresse au verifie par 1'ingenieur des mines, et certifie par le
pref et du departement.
Art. 31. Plusieurs concessions pourront etre re'unies
entre les mains du meme concessionnaire, soit comme indi-
vidu, soit comme representant une compagnie, mais a la
charge de tenir en activite 1' exploitation de chaque conces-
sion.
Sect. 3. Des obligations des proprietaires de mines. Royalties
Art. 32. L' exploitation des mines n'est pas considered ar
comme au commerce, et n'est pas sujette h patente.
Art. 33. Les proprietaires de mines sont tenus de payer
a 1'etat une redevance fixe, et une redevance proportionnee
au produit de 1'extraction.
(6) Cet article et les deux prece- (c) La concession embrasse-t-elle
dens n'etant plus dans toutes leurs toutes les substances minerales qui se
parties, susceptibles d'une execution trouvent sous le terrain qu'elle com-
litterale dans le royaume des Pays- prend, ou est-elle limitee h, celles dont
Bas, depuis leur separation d'avec la elle fait mention expresse ? Vide
France, il a etd pris, le 18 septembre Pour le royaume des Pays-Bas, un
1818, pour les remettre en harmonie arrctc royal, du 4 Mars 1824:
avec la forme actuelle de 1'administra- Kevu les instructions du 18 mes-
tion de ce royaume, un arrete' royal sidor an 9, et du 5 aout 1810
qui contient les dispositions suivantes. Journal off. des Pays-Bas, torn. xix.
Vide Journal off. des Pays-Bas, torn. no. 23.
xiii. no. 35 ; Merlin, Repertoire de Ju-
risprudence, torn. xx. p. 169.
38 FRANCE. [CHAP. in.
Art. 34. La redevance fixe sera annuelle, et reglee
d'apres 1'etendue de celle-ci : elle sera de dix francs par
kilometre carre. La redevance proportionnelle sera une
contribution annuelle, a laquelle les mines seront assujeties
sur leurs produits.
Art. 35. La redevance proportionelle sera reglee a cliaque
annee, par le budget de 1'etat, comme les autres contribu-
tions publiques : toutefois elle ne pourra jamais s' clever au-
dessus de cinq pour cent du produit net. II pourra etre
fait un abonnement pour ceux des proprietaires des mines
qui le demanderont (d).
Art. 36. II sera impose en sus un decime pour franc,
lequel formera un fonds de non valeur, a la disposition du
ministre de 1'interieur, pour degrevement en f aveur des pro-
pri&aires de mines qui eprouveront des pertes ou accidens.
Art. 37. La redevance proportionnelle sera imposee et
perue comme la contribution fonciere.
Les reclamations a fin degrevement ou de rappel a
1'egalite proportionelle, seront jugees par les conseils de
prefecture. Le degrevement sera de droit, quand 1'ex-
ploitant justifiera que sa redevance excede cinq pour cent
du produit net de son exploitation.
Art. 38. Le gouvernement accordera, s'il y a lieu, pour
les exploitations qu'il en jugera susceptibles, et par un
article de 1'acte de concession, ou par un decret special cle-
Iib6r en conseil d'etat pour les mines deja concedees, la
remise en tout ou partie ou paiement de la redevance pro-
portionnelle, pour le temps qui sera juge convenable ; et ce,
comme encouragement, en raison de la difficulte des tra-
vaux ; semblable remise pourra aussi etre accordee comme
dedommagement, en cas d' accident de force majeure qui
surviendrait pendant 1' exploitation.
Art. 39. Le produit de la redevance fixe et de la rede-
vance proportionnelle formera un fonds special dont il sera,
tenu un compte particulier un tresor public, et qui sera ap-
plique aux defenses de I'admmistration des mines et a celles
des recherches, ouvertures et mises en activite des mines
nouvelles ou retablissement des mines anciennes.
Art. 40. Les anciennes redevances dues a l'6tat soit en
(d) RecueU gen. des Lois, torn. 1860, part ii. pp. 107, 505.
SECT, i.] LAWS OF 1810. 39
vertu des lois, ordonnances au reglemens, soit d'apres les
conditions enoncees en 1'acte de concession, soit d'apres des
baux et adjudications au profit de la regie du domaine, ces-
seront d'avoir cours a compter du jours ou les redevances
nouvelles seront etablies.
Art. 41. Ne sont point comprises dans 1'abrogation des
anciennes redevances, celles dues a titre de rentes, droits et
prestations quelconques, pour cession de fonds ou autres
causes semblables, sans deroger toutefois a 1' application des
lois qui ont supprime les droits feodaux.
Art. 42. Le droit attribue par 1'art. 6 de la presente loi
aux proprietaires de la surface, sera reglee a une somme
determinee par 1'acte de concession.
Art. 43. Les proprietaires de mines sont tenus de payer
les indemnities dues au proprietaire de la surface sur le
terrain duquel ils etabliront leurs travaux. Si les travaux
entrepris par les exploitateurs ou par les proprietaires de
mines ne sont que passagers, et si le sol ou ils ont ete fait
petit etre mis en culture au bout d'un au comme il 1'etait
auparavant, 1'indemnite sera reglee au double de ce qu'aurait
produit net le terrain endommage.
Art. 44. Lorsque 1'occupation des terrains pour la re-
cherche ou les travaux des mines, prive les proprietaires du
sol de la jouissance du revenu au dela du temps d'une annee,
au lorsqu' apres les travaux, les terrains ne sont plus propres
a la culture, ou peut exiger des proprietaires des mines
1' acquisition des terrains a 1' usage de 1'exploitation. Si le
proprietaire de la surface le requiert, les pieces de terre trop
endommagees et degradees sur une trop grande partie de
leur surface, devront etre achete"es en totalite par le pro-
prietaire de la mine. L'evaluation du prix sera faite,
quant au mode, suivant les regies etablies par la loi du
16 septembre 1807, sur le dessechement des marais, etc.,
tit. 11, mais le terrain k acquerir sera toujours estim au
double de la valeur qu'il avait avant 1'exploitation de la
mine (e).
Art. 45. Lorsque par 1'effet du voisinage ou pour toute
autre cause, les travaux d'exploitation d'une mine occasion-
nent des dommages a 1'exploitation d'une autre mine, a
(e) Kecueil gn. des Lois, to . 1861, part i. p. 959; part ii. p. 249.
40 FRANCE. [CHAP. in.
raison des eaux penetrent dans cette derniere en plus
grande quantite ; lorsque, d'un autre cote, ces memes travaux
produisent un effet contraire et tendent & eVacuer tout ou
partie des eaux d'une autre mine il y aura lieu k indem-
nit6 d'une mine en faveur de 1' autre : le reglement s'en
fera par experts.
Art. 46. Toutes les questions d'indemnites & payer par
les propri&aires de mines, k raison des recherches ou tra-
vaux anterieurs k 1'acte de concession, seront decidees con-
formement a 1'art. 4 de la loi du 28 pluviose an 8.
Art. 81. L' exploitation des carrieres a ciel ouvert a lieu
Quarries, sans permission, sous la simple surveillance de la police, et
avec 1'observation des lois ou reglemens generaux ou
locaux.
Art. 82. Quand 1'exploitation a lieu par galeries sou-
terraines, elle est soumise a la surveillance de 1' administra-
tion, comme il est dit au tit. 5" (/).
later- By a convention between her Majesty and the Emperor
national o f the French, relative to joint-stock companies, signed at
Companies. Paris on April 30, 1862, it is provided as follows :
Art. 1. The high contracting parties declare that they
mutually grant to all companies and other associations,
commercial, industrial, or financial, constituted and autho-
rized in conformity with the laws in force in either of the
two countries, the power of exercising all their rights, and
of appearing before the tribunals, whether for the purpose
of bringing an action, or for defending the same, through-
out the dominions and possessions of the other power, sub-
ject to the sole condition of conforming to the la\vs of such
dominions and possessions.
Art. 2. It is agreed that the stipulations of the preceding
article shall apply as well to companies and associations
constituted and authorized previously to the signature of
the present convention, as to those which may subsequently
be so constituted and authorized.
Art. 3. The present convention is concluded without
limit as to duration. Either of the high powers shall,
(/) Merlin, Repertoire de Jurisprudence, torn. xx. p. 171.
SECT, ii.] BELGIUM. 41
however, be at liberty to terminate it by giving to the other
a year's previous notice. The two high powers, moreover,
reserve to themselves the power to introduce into the con-
vention, by common consent, any modifications which ex-
perience may show to be desirable.
SECTION IT.
BELGIUM.
Rights of the Sovereign of the Proprietor of the Soil. The Principality of
Liege County of Limbourg Hainaut. Laws of 1791, 1810, 1837, 1854-
18GO. Council of Mines. International Treaty, 1862, respecting Companies.
THE Belgic provinces present some interesting variations Lte ge and
from the general law of foreign mines. Thus, in the
principality of Liege, and the county of Limbourg, the
sovereign princes did not succeed in establishing a property
in the mines, which have always been regarded as appur
tenant to the ownership of the soil. Perhaps this excep-
tion to the practice of other countries may be accounted
for from the fact that the most important mines, and those
about which the legislation of those provinces has chiefly
concerned itself, are coal mines. But, even here, it was
not left to the absolute will of the proprietor to work them,
or leave them unworked, as he pleased. When a mine
was drowned and deserted, any private adventurer who
would undertake to drain it, acquired a right to appropriate
all the coal reclaimed at his cost upon payment of a fixed
proportion of the raw product, under the name of terrage,
to the landowner; and this right to the mineral was so
strong, that it is a vexata qucestio whether the maker of the
arene or sough did not become the owner of all the re-
claimed coal (g). The formalities which preceded this right
of conquest, as it was termed ; the proclamation and notice
to the party interested in opposing it ; and the preference
given to the landowner in case he wished to undertake the
(#) Delebecque, Legislation des Mines, torn. L p. 141.
1-2 BELGIUM. [CHAP. HI.
work himself, are curious, and bear some resemblance to
the regulations in force in the Stannaries of Cornwall since
the reign of Henry VII.
This right, claimed by the miners of Liege as imme-
morial, was established or confirmed by an edict of Prince
Ernest of Bavaria, and, with other ancient usages of the
miners, was, from time to time, attested by the solemn de-
claration of the " Vair Jures du Charbonnage," who con-
stituted a court, as well for the supervision of the mines,
as for the determination of litigated questions arising on
them. It was also their remarkable privilege, or duty, to
record the usages of miners upon the voluntary request or
quccritur of any interested party. Their functions, how-
ever, had nearly fallen into disuse, when the introduction of
the French code, consequent upon the Revolution, finally
extinguished them.
Hainaut. The seigneurs in the department of the Hainaut retain
full rights to the coal, unfettered by any interference or
claim on the part of the crown, but not to lead, copper,
tin, or other minerals, and these rights were sanctioned by
the law of July 16, 1817 (K) ; but, in that part of the
province of Hainaut which was annexed to France in the
seventeenth century, those ancient rights have been abo-
lished (i).
Laws of In addition to coal, the mines of Belgium have pro-
I8io. an( i A i i i -i,*. 1854 to
mining companies in Belgium, the law has given a right
of preference to companies, provided they give the same
guarantees as are required from the proprietor of the soil ;
and by another decree, dated May 24, 1854 (q), the above-
mentioned law is expounded and in some respects modified.
Subsequent decrees and orders up to a very recent period
have been adopted, but none of them affect the rights of
the subject, or the prerogative of the crown, as previously
established; but are directed chiefly to the management
and regulation of mines. By a royal decree of May 25,
1860, the laws relating to inspectors of mines were
amended.
(m) Ante, p. 32. (o) Propriety des Mines en France
() Jurisprudence du Conseil des et en Belgique, par Dalloz, Paris,
Mines, Bruxelles, 1850 ; Nouveau 1862, tit. Belgique.
Code des Mines avec Supplement, par (/>) Recueil des Lois, De'crets, etc.,
Cliicora et Dupont, Bruxelles, 1846, concernant des Mines, p. 17, 1856.
18."2; Commentaires sur la Le'gisla- (7) Jurisp. du Cons, des Mines de
tion des Mines, par Bury, Liege, 1860. 1850 & 1855, par M. Chicora, p. 95.
BELGIUM.
[CHAP. in.
Council The " Conseil des Mines," established by the laws of 1837,
for mines. cons i s t s o f a president, four directors (conseillers), and a re-
gistrar (greffier), nominated by the king, who has power to
appoint other officers in case of need, and numerous regula-
tions have from time to time been made by this assembly, and
they now occupy generally the position which was assigned
by the law of 1810 to the " Conseil d'Etat," but with this
exception, that the new Department of Mines has no
power to grant any further concession of iron mines, and
consequently the number of concessions of iron mines is
the same now as in 1837 (r).
Inter-
national
treaty re-
specting
companies.
A convention between her Majesty and the King of the
Belgians, respecting joint-stock companies, was signed at
London, November 13, 1862, which is as follows :
Art. 1. The high contracting parties declare that they
mutually grant to all companies and other associations,
commercial, industrial, or financial, constituted and au-
thorized in conformity with the laws in force in either of
the two countries, the power of exercising all their rights,
and of appearing before the tribunals, whether for the
purpose of bringing an action, or for defending the same,
throughout the dominions and possessions of the other
Power, subject to the sole condition of conforming to the
laws of such dominions and possessions.
Art. 2. It is agreed that the stipulations of the preceding
article shall apply as well to companies and associations
constituted and authorized previously to the signature of
the present convention, as to those which may subsequently
be so constituted and authorized.
Art. 3. The present convention is concluded without
limit as to duration. Either of the high powers shall,
however, be at liberty to terminate it by giving to the
other a year's previous notice. The two high powers,
moreover, reserve to themselves the power to introduce into
the convention, by common consent, any modifications
which experience may show to be desirable.
(r) Statisque General de la Belgique. publuS par le Ministre de 1'In-
tfrieur, 1852, Bruxelles.
SECT, in.] GERMANY. 45
SECTION III.
GERMANY, AUSTRIA, PRUSSIA.
Prerogative of the Crown Government Grants. Laws in the different States
Local Officers and Courts. Prussia: Royal Rights Grants. Dues and Taxes
Laws 1810-1862. Austria: Laws 1854-1860 Royal Rights Government
Grants, Jtrst limited, then absolute.
GERMANY is the country in which the opinion of a Preroga-
royalty in mines is supposed to have made its earliest ap- ^
pearance. Yet even here those w r ho have bestowed most
attention upon the subject have been unable to discover any
trace of such a claim until the close of the eleventh century,
nor does it appear to have been completely established until
the end of the twelfth (s).
But about the middle of the twelfth century the sove-
reign princes of Germany seem to have succeeded in
enforcing their pretensions. Frederick Barbarossa and his
immediate successors took occasion to assert in their charters
the right to mines, as ancient and undoubted regalia, in
terms so strong as to announce their determination, at all
events, to consider the prerogative as no longer open to
question ; and they accordingly granted or confirmed them
to their subjects, or otherwise disposed of them for the
benefit of the crown, at pleasure (t).
In these grants the reservation of the tenth, enjoined by
the Roman law, also occurs (M). The crown, however,
did not always confine its claim to this payment, but
seems to have sometimes reserved in its grants a sort of
partnership or share in the mines, in virtue of which it
claimed a right to have a third measure or other definite
portion of the mine itself. This dole or share, evidently
(*) Hiilman's Hist. Regalia, p. 62, (<) Gmelin, Geschichte des Teuts-
ed. 1806 ; Eichorn, Deutsche Staats chen Bergbaus, pp. 220, 241.
und Rechtsgeschichte, vol. ii. p. 424, () Ante, p. 17.
ed. 1835; Meyer, Bergwerksverf as-
sung, &c., des Uarzes im Mittelalter,
pp. 2, 3.
46 GERMANY. [CHAP. in.
the result of particular conventions, and not of any general
disposition of the law, was called the fron-theil, and traces
of it are especially visible in the ancient constitution of the
mines of Bohemia, Saxony, and the Hartz. It has disap-
peared from the improved mine law of Germany ; but the
fact" is interesting to those who recollect that the lead
mines of Derbyshire, and the iron and coal mines of Dean
Forest, in Gloucestershire, preserve the memory of this
ancient usage.
The tenth or other profit of the crown has varied both in
form and amount. It has been reduced to a twentieth, or
thirtieth, or altogether remitted. It has been sometimes
commuted for a fixed periodical payment (u), in other
cases for a fixed rate of duty, regulated by the weight of
the smelted metal. This occurs, for example, in the tin
mines of Bohemia, at Schlackenwald, &c. In the latter
form it is the equivalent of the coinage duty of our Stan-
naries.
The consequences of the assumption of a royal pro-
perty in mines and minerals, were important, and are
supposed to have been beneficial to the interests of com-
merce. The princes of Germany, imitating the policy
of the Roman emperors, invited adventure by indefinite
iberty of search, on terms which gave to the adventurers a
strong interest in their success. This liberty (the freier-
Tcldrung of the German mines) is indicated obscurely in the
Iglavian mine laws of the thirteenth century, more dis-
tinctly in those of Wenceslaus II., and the system received
its full development in the fifteenth and sixteenth cen-
turies (w). The laws of Iglan are referred to as the earliest
instance of this liberty of mining. There is an instrument
of the twelfth century in which the Bishop of Trent (to
whom Frederick had conveyed the royalty of the mines) is
represented as granting to the silbrarii, or silver miners, of
the Tyrol a general right of searching for mineral in a
mountainous district, upon payment of a personal census by
every one engaged in working, with 1 a reservation of a
0) Cancrin, p. 151. (w) Gmelin, Teutsch. Bergbau., p. 220 n.
SECT, in.] GOVERNMENT GRANTS. 47
further profit upon the discovery of a mine. The terms of Variations
the grant would remind the reader of the black and white i aws j n
rents of the Stannaries of Cornwall and Devon (#). different
Iron and coal were not universally regarded among the
regalia, but were subject to be worked by strangers
where the owner of the soil declined to work them himself.
It should be further observed that the different sovereign
States of Germany have made variations in the ancient
laws.
There are local officers for the administration of justice, Local
and local courts of great antiquity ; but these courts do offlcera and
n i f courts.
not seem to embrace all subjects of contest between miner
and miner. Ordinary suits and offences not connected
with mining are left to the ordinary tribunals.
By the general practice of Germany every one is entitled
to a provisional right of search, and upon the discovery of Govem-
a vein or other mineral deposit, the discoverer is entitled, menfc
as of right, to a grant of a certain measured space of ground
for the purpose of pursuing his discovery, and the cere-
mony of bounding this area is announced by three consecu-
tive proclamations. The demand which is made upon the
bergmeister, or other local officer of the sovereign, cannot
be refused unless there be conflicting claims, in which case
the first finder, and not the first claimant, is entitled to pre-
ference. Hence the two parsemiae of the law, " Es hat
jederman ein freyes schurfen," and "Der erste finder ist
der erste muther." The interest in the mine when granted
is permanent, assignable, and transmissible, but is subject
to the obligation of continual working, of payment of the
tenth or other proportion, and of a small fixed quarterly
rent, called Recessgeld or Quatembergeld, and considered
by German lawyers to be " in recognitionem f eudi metal-
lici" (?/). The interest in the mine worked under such a grant
is divided into a number of shares prescribed by the law,
usually one hundred and twenty-eight, of which a single
share free of costs, or four shares subject to costs, at elec-
(x) Gmelin, Teutsch. Bergbau., p. p. 496, ed. [8. Step. Com., vol. i. p.
220 n. (/fc). 174, edit. 4.
(y) Selcbow, Elem. Juris. Germ.,
PRUSSIA.
[CHAP, in-
PBVSSIA.
Rights of
the crown.
Govern-
ment
grant.
tion, are assigned to the landowner as a compensation for
the easements claimed over his land. He is also permitted
in some places to enjoy certain other privileges. A mine
deserted by the grantee is declared vacant after three
formal visits of the mine-master and jurats, and the lapse
of a year without working ipso facto discharges his rights
even without such formalities, and makes the "field
free" (z). The use of timber, fuel, and water, and space
for the necessary buildings, are provided either gratuitously
or for fixed and reasonable payments; and as a further
encouragement to labourers, they are exempt from various
tolls and duties on articles of necessary consumption, from
military service, from the obligations of a servile tenure or
condition (frohudienste), from disability and forfeiture by
reason of alienage, and from some other burdens ; they
have, moreover, a tacit hypothec on the produce for the
amount of their wages.
Prussia is chiefly rich in coal, iron, lead, and zinc, and in
the latter mineral she occupies the first position among the
nations of Europe. The mines in the provinces of Rhenish
Prussia have remained generally subject to the French
law of April 21, 1810 (a), even since those provinces w r ere
detached from the French empire ; the provinces situate
on the right of the river Rhine are regulated by the Ger-
man laws.
The royal prerogative in Prussia is retained over all
fossils from which can be extracted any metallic or semi-
metallic substances. The metallic substances comprise
the precious stones and all other stones not expressly ex-
cluded by the code, every kind of salt, principally rock-
salt, saltpetre, vitriol, alum, sulphur, lead, gum, and coals
(>). The semi-metallic substances comprise antimony, bis-
muth, zinc, arsenic, and cobalt.
As soon as a discovery of minerals is reported to the
government, it is inquired into by the Bergamt, who gives
a provisional concession (miithung), and after a shaft has
been sunk, and the government surveyor has been able to
(z) Cancrin, pp. 81, 82. (&) Vide Code for the Prussian
(a) Ante, p. 32. States, Art. 69, 70, 71.
SECT, in.] LAWS 18101862. 49
descend to inspect the mine, and lie reports that there is
reasonable ground for believing in the existence of minerals
which might be profitably worked, the government grants
another concession, which is definitive, and establishes the
right to the mine. But as in France so in Prussia, no right
of preference to the concession can be claimed by the pro-
prietor of the soil (c).
The law for the Prussian States formerly imposed a duty Dues and
of a tenth on the raw material (d), but by a subsequent taxes<
decree of May 12, 1851, the duty has been rediiced to a
fifth. Whether the mines are worked or not there is
a small duty of one thaler per annum paid on the conces-
sion (recessgeld) (e\ and an additional duty of one per
cent, on the value of the raw material, to defray the ex-
penses of surveillance.
Various other laws have been passed, and on July 9, 1858,
an edict was promulgated to the effect that mines which
had ceased to be worked should be free to be undertaken by
others. Lastly, three recent proposals of some importance,
which were presented to the Chambers by the government,
respecting the mines of Prussia, were passed into a law. The
first relates to the duties of the Bergamt, the second defines
the nature of the interest of a part owner, and the third
relates to and provides for the reduction of one-fifth of the
duties, from January 1, 1862, and a gradual reduction
thereof till they amount to one per cent, only (/).
The mining laws of Austria were revised and amended AUSTRIA.
by an imperial decree, dated May 22, 1854. The new \l a * d
laws came into operation on November 1, 1854, and apply i860,
to every part of the Austrian empire with the exception of
Lombardy, Venetia, and Dalmatia. Art. 3 expressly re-
serves the acquired rights of all persons to mines. In
pursuance of those laws, an order of the Minister of State
for the Home Department, dated January 14, 1860, grants
permission to Jews (g) to reside in the mineral districts of
(c) French Law, ante, p. 35. 106. Zeitschrift fur Bcrgrecht, Von
(f) Prussian Code, Art. 98, 101- Brassert v. Achenback. KOln, I860.
105. Bonn, 1862.
(e) 5. (.9) Monit.Univ. du 21 Janr. 18GO,
(/) Journal des Mines, 1861, p. p. 86.
50
AUSTRIA.
[en r. in.
Royal
rights.
Govern-
ment
grant.
search.
Bohemia, Hungary, Croatia, Slavonia, Servia, Transyl-
vania, and the "banat" of Temeswar. A decree of April
27, 1860 (7t), enables foreigners to carry on any commer-
cial undertaking in the Austrian empire without obtaining
naturalisation. The ancient royal rights of the State ex-
tended to every kind of mineral, and the new laws of
May 22, 1854, confirm those rights (i). The sovereign is
now entitled to a double duty, the one fixed depending
upon the area of the mine ; the other variable, being one-
tenth of the value of the raw produce payable in money.
Any one may obtain a concession from the government,
regard being had to the laws of 1548 relating to Bohemia
and Hungary, to search for mines ; the proprietor of the
soil has no right to prevent it, and must even himself
obtain the sanction of the government to open mines in his
own territory. The concession is first granted for one year,
and if the mines are afterwards explored it may be re-
License to newed (j). In order to obtain a right of search it is ne-
cessary that the applicant should make a request in writing
to the government, either signed by himself or his agent,
which must contain the following particulars : the name,
profession, and residence of the applicant ; his license to
reside in the country; the district to be explored; and if
his demand is made through an agent, the authority of the
principal must be annexed to the request (&). The con-
cession, as a rule, is not exclusive, but several concessions
may be granted for the same district, and they are
not assignable without the sanction of the government (I).
To obtain the exclusive right of exploring a certain
district, the applicant must point out very clearly, in a
memorial to be addressed to the Tribunal of Mines, the
precise locality of the property he means to explore ( ?).
The government may then, in either case, grant the con-
cession for the limited period of one year; but there
(A) Monit. Univ. du 3 Mai 1860, (fc) Law of 22 May, 185-1, chap.
p. 526. ii. 8 . 15.
(0 "Delebecque, t. i. nos. 47 et (/)-Lawof 22 May, 1854, s. 20-
suiv. 24.
O') Law of 22 May, 1854, chap. (m) Law of 22 May, 1854, <] . ii.
ii. s. 15. s. 17-24.
SECT, in.] GOVERNMENT GRANT. 51
are certain places which the grantees cannot explore
without the consent of the proprietor of the soil; such
as (n) inhabited buildings, enclosed places, every kind of
garden ground, and lands enclosed with walls, cemeteries,
or lands situate within twenty fathoms of the inhabited
buildings and enclosed places before mentioned. The re-
striction applies also to public roads, railroads, rivers, forti-
fications, and the frontiers of the empire.
In order to obtain a renewal of the limited grant, and to Absolute
make it absolute, an application must be made to the Tri- grai
bunal of Mines, stating the following particulars :
1. The name, residence, and signature of the applicant,
or his agent with the authority of the principal annexed.
2. The description of the strata, and the nature of the
substance discovered, the name of the landed proprietor,
the name of the parish or district, and the precise limits
and extent of the proposed works.
3. The precise spot of the discovered minerals.
4. When the research has been successful, the extent of
the researches must be shown, together with the depth and
course of the discovered vein.
5. The extent of the mines, and the name proposed to
be given to the concession.
6. A declaration that the concession applied for is to be
enrolled simply as a detached or independent concession,
or as an addition to a previous concession.
7. A plan in duplicate, showing the course of the vein,
on a scale of one inch to forty fathoms, must be annexed to
the request (o).
8. Every application is advertised and inquired into by
the government inspector, and, in a fortnight afterwards, a
report is made to the head of the department, and a meet-
ing of the commissioners appointed, at which the applicant
may require the presence of men of science. The inquiry
being concluded, the Tribunal of Mines decides whether or
not to make the grant absolute.
(n) Law of 22 May, 1854, chap. (o) Law of 22 May, 1854, chap.
ii. a. 17; compare with Art. 11 of iii. 8. 49, 50.
French Laws of 1810, ante, p. 34.
E2
62 SPAIN. [CHAP. in.
SECTION IV.
SPAIN MEXICO .
SPAIN: Ancient Ordinances Laws of 1859 Government Grants How to
obtain Grant Dues and Taxes Formation of Mining Companies.
MEXICO : Mining Laws of Spain when applicable Durawjo Cluhuhua
Gttanacanto Foreigners' Privileges Laws of 1823, 1842 Duties and
Customs Treaties of Commerce,
SPAIN. IN Spain the pretensions and after-acquired rights of
Ancient f] ie crown became so deeply settled that, by the law of
nances. the Partida, mines were held not to pass in a grant of
land, although not excepted out of the grant ; and when
included, the grant was valid only during the life of
4he king who made it, unless it was afterwards con-
firmed by his successors (p ). Afterwards, by a law of
Don Alphonso XI. (q), all mines of gold, silver, or any
other metal whatsoever, and the produce thereof, were
declared to be the property of the crown, and no one was
presumed to work them, except under some special license
or grant previously obtained, or unless authorized by im-
memorial prescription. This law was afterwards moderated
by John I., and the law, as established by him, permitted
the owner of the land, or a stranger with permission of the
owner, to work mines on paying two-thirds of the produce,
after deducting expenses, to the king. Philip II., revoking
the former grants, again vested mines, whether in public or
private ground, in the crown, but the object of so vesting
them was not that the right of search should be limited to
the crown, but in order to enable the people generally,
under certain regulations and ordinances, such as the pay-
ment of a royalty, freely to make search for the minerals,
especially when the proprietors of the soil refused to do
so (r). Besides these, various other regulations were pro-
C/>) Law 5, title 15, partida 2; book vi. ; copied in the collection of
and see Gamboa's Mining Ordinances, Castile, title 13, book vi.
by Heathfield, vol. i. p. 17, edit. 1830. (r) Vide Law 5, title 13, book vi.
(y) Ordenamiento Real, title 1, Collection of Castile.
SECT, iv.] LAWS OF 1859. 53
mulgated, which were known as the old ordinances. The
new law of Philip II. did not interfere with the rights of
the crown; but whilst it repealed some portion of the old
law, it nevertheless granted permission to all persons,
whether natives or foreigners, to search for mines, subject to
the rules of that edict concerning the payments to be
rendered to the crown and the other matters regulated
by it ().
Several codes of laws have from time to time been pro-
mulgated in Spain, modifying the ancient laws, and on
July 6, 1859 (z), a new code of laws, entitled "Legislacion Laws of
de Minas," was passed, by virtue of which the mining laws
of that country are consolidated and amended. By those
laws all inorganic, metalliferous, combustible, and saline
substances, and phosphite of lime, when they occur in veins
which require mining operations, and precious stones,
whether they are discovered on or beneath the surface,
are declared to be the property of the State (corresponde
al Estado), and no one has a right to search for them
without a grant from the government ; but stone, sand, Govern-
and other substances required for building or agricul- grant>
tural purposes are exempt from the operation of the
above-mentioned laws, as are also auriferous tinny sands,
and other minerals found in beds of rivers, until they
amount to such quantities as to require a mining establish-
ment. When the government grants a concession, the
grantee has to pay to the owner of the surface a fair value
for so much of the land as he may require, and also to
give security for the payment of a fair compensation for
any future damage which may ensue to the surface in con-
sequence of the mining operations undertaken or prosecuted
under and by virtue of the concession.
The concession does not enable the grantee to work for
minerals in vineyards, ornamental or pasture grounds, or
within forty yards of any building, railway, public roads or
canals, without the license of the owner of the surface, or
of the governor of the State, nor within fourteen hundred
(*) Law 5, title 13, book vi. chap. (t) Vide Edicion Oficial, Madrid,
i. Collection of Castile. Imprenta Nacional, 1859.
54 SPAIN. [CHAP. m.
yards of fortified places, without a license from the mili-
tary authorities.
This concession, or what in the West of England is known
as a " sett," is called in Spain a " pertenencia." The per-
tenencia is three hundred metres in length, two hun-
dred in Avidth, and of undefined depth, except in mines
of iron, coal, and other inferior substances, where the per-
tenencia is five hundred metros in length by three hundred
in width, and in cases of auriferous tinny sands and other
minerals found in beds of rivers, sixty thousand square
metros (11). The government, on being satisfied that the ap-
plicant has capital sufficient effectually to explore the
ground, will grant more than one pertenencia to the same
person, and a foreigner is placed on the same footing, both
as to obtaining one or more pertenencia, as a citizen (cui-
dadano). When several pertenencias are granted together,
the formalities through which they have to pass are more
complicated than where only one pertenencia is granted.
But before any application for a pertenencia is made (u),
it will be well to consider in whose name it is to be
granted. This is a wise precaution in cases at home as well
as abroad, but it is essentially important in Spain, where
the government looks to the grantee, and to him only, not-
withstanding any subsequent assignment to other persons,
to fulfil the conditions of the pertenencia.
How to ob- In order to obtain a pertenencia, the applicant must
present a petition in writing to the governor of the parti-
cular State where the mine is situate (w\ stating what
pertenencias he requires, and giving reasonable evidence
of his having discovered the existence of minerals in the
ground he desires to explore, and within twenty days he
must either deposit plans of the ground, or a certificate
from the local magistrate (alcalde), that the ground has
been properly marked out ; the application is then regis-
(u) A metro is about thirty-nine (vi) See form of petition in Lagisla-
inches. cion de Minas, edicion oficial, Madrid,
(e) The form of application, as 1859.
well as of the pertenencia itself, will be
found in the "Legislacion de Minas,"
1859.
SECT, iv.] PERTENENCIAS. 55
tered, advertised in the official public journal (boletin
oficial), and if no opposition is successfully made within a
specified time the pertenencia is awarded to the applicant,
not later than five months from the time of presenting the
petition.
The above is a sufficient outline of the course to
be adopted in order to obtain a pertenencia from the
Spanish government ; more particular information re-
lating to them, as well as concerning the laws of mining
generally in that country, will be found upon reference to
the laws themselves, and to those works which we have
already incidentally noticed (#).
There were originally two duties payable to the State, Dues and
the one fixed, the other in proportion to the produce. The taxes -
fixed duty for every rectangular mine of two hundred
metres wide by three hundred long was three hundred reals-
vellon (about three guineas) per annum. For mines of iron,
coal, sulphate of soda, and rock-salt, a fixed sum of two
hundred reals-vellon. Mines which had been abandoned
and re-granted paid a fixed annual duty of four hundred
reals-vellon for each space of forty thousand metres. If
the mines were not rectangular, the fixed duty was levied
in proportion to the superficies.
The proportional duty on the raw produce was three per
cent., without allowing for any expenses of extraction, but
the said proportional duty by the law of 1859 has been sus-
pended for twenty years from that date on combustible
minerals, iron, calamine, blende (mock ore), and their pro-
ducts, iron, coke, and zinc (y).
When the pertenencia is obtained, the next consideration Formation
is, the formation of the company to carry on the mine.
The grantee should first vest the pertenencia in the com-
pany, the rules and regulations of the company should
then, if they have not been already settled, be finally
determined upon, and whether the company is consti-
tuted under Companies Act, 1862, or as a private partner-
() Gamboa's Mining Ordinances gislacion de Minas, edicion oficial,
of Spain by Heathfield, edit. 1830 ; Madrid, 1859.
Rockwell's Spanish and Mexican (y) Laws of 1859, chap. xii. a.
Laws, edit. 1851, New York ; Le- 80-84.
56 MEXICO. [CHAP. in.
ship, or in any other form, a clause in the deed of settle-
ment, or other document which prescribes the rules, should
be inserted to prevent any Spaniard from becoming a
shareholder, as in such an event he would be enabled at any
time .to draw the whole concern into the Spanish courts of
law ; whereas if our precautions, and other analogous ones
which will readily suggest themselves, be attended to in the
formation of the company, such a consequence, often fatal
in itself, may easily be avoided. Although these obser-
vations are made more particularly in reference to com-
panies to be formed in England for working mines in
Spain, they are applicable to all companies formed in Eng-
land for working mines in any other State where the laws
are confused, as in Spain.
MEXICO. The mining laws of Spain were generally applicable to
her colonial possessions, unless varied by the particular
laws of any particular State, but when the earliest mining
laws of Spain were passed, the mines situate in America
had not acquired much celebrity, and those laws were
therefore framed chiefly for the mother country ; but
it was afterwards directed by the law of the Indies,
that the ordinances of the new code of 1584 should
be observed in the colonies w r hen not at variance with
the municipal law; and in the year 1783 a code of
laws was issued for New Spain, which was afterwards
adopted in most of the other Spanish colonies. In the
regulations which concern the working of mines, this code
very closely follows the former ordinances, the most im-
portant changes introduced thereby being the erection of
the Tribunal General de Mincria, and the Disputaciones
de Mineria, to which exclusive jurisdiction in mining mat-
ters was confided ; secondly, by the establishment of a bank
of supplies; thirdly, by the organization of a school of
mines.
Independ- Upon the establishment of the independence of the
^P an * sn colonies, the seceding provinces generally retained
the laws of the mother State, but they have since made
such modifications of them as were necessary by changing
a monarchical for a republican and federal form of govern-
SECT, iv.] INDEPENDENCE OF STATES. 57
ment without materially changing the mining laws (z). In
Mexico, the principal alterations consisted in conferring
exclusive and absolute jurisdiction on the local mining
tribunal of each province, and by admitting foreigners to
obtain and hold mining property on the same terms as
citizens.
For the State of Durango it was decreed, in a congress Durango.
held in 1824, that a Tribunal de Mineria, or mining court,
for appeals in the second instance, should be established ;
and by another decree, dated January 18, 1825, it was
declared that this appeal-court should have the same juris-
diction as had previously been conferred upon the mining-
court of Guadalaxara.
For the State of Chihuhua, the contentious jurisdiction Chihuhua.
of the mining deputations was, by an order of congress,
dated March 16, 1826, transferred to the ordinary legal
courts, and by another decree, dated October 7, 1826,
these deputations were made amenable to the supreme
government of the State, in all matters as to which they
had previously depended on the general tribunal of Mexico,
when not inconsistent with the republican system.
For the State of Guanacanto, by a decree dated April Guana-
24, 1827, the jurisdiction in mining matters was also trans- canto -
f erred to the ordinary courts of justice. By a decree of
October 7, 1823, which was applicable to all the states
of Mexico, foreigners were empowered to hold shares in Foreigners'
the mines furnished by them with supplies of money or privileges,
stores. And by three several subsequent decrees, dated
respectively March 11, 1842, July 12, 1842, and August
31, 1842, the privileges of the foreigner were still further
extended, and by virtue of which several decrees, his right
to hold mining or other property in any state of the re-
public is secured. The following are copies of the said
decrees :
The Sovereign Mexican Congress has resolved and de- Decree,
creed Oct 7)
1823.
1. That for the present there shall be a suspension of
(2) See Collection of Laws published in Mexico in 1829 ; Thompson's Laws
of Mexico, p. 194.
58 MEXICO. [CHAP. m.
the law 12, title 10, book v. ; and of the law 5, title 18,
book vi., of the collection of Castile ; and also of the law
1, title 10, book viii. ; and of the laws comprehended in title
27, book ix., of the collection of the Indies, together with
the article 1, title 7, of the Ordinances of the Mines ; which
laws enact that foreigners, in order to acquire and work
mines on their own account, should be naturalised, or
tolerated with the express permission of the government.
2. This suspension only enables foreigners to contract
with the owners of such mines, as are in want of capital,
for supplying them with capital, in all the modes which are
usual in such contracts, upon the terms that shall be most
convenient to both parties, so that they may even acquire
in property shares in the concerns to which they supply
capital (hasta poder adquirer en propriedad acciones en las
negociaciones que habiliten) ; such foreigners remaining
liable, in all respects, to our ordinances concerning the
working of the mines and the reduction of the ores, and to
all the taxes and duties, subject to which the nation grants
to its citizens the right of enjoying such property.
3. By consequence they are prohibited from registering
new mines, from denouncing those which have been de-
serted, and from acquiring a share in any mine, except
those to which they supply capital, under any colour or
pretence whatsoever.
4. No alteration whatever shall take place for the pre-
sent in respect of the excise duties, and the law relating to
quicksilver, which article is excepted from all duty; all
others used in the mines remaining subject to the usual
excise duties.
The supreme executive power is desirous that the above
article should be generally understood and carried into
effect, and order that it be printed, published, and circu-
lated.
Art. 1. Foreigners, not citizens, residing in the republic,
1842. ' mav acquire and hold town and country property, by pur-
chase, adjudication, denouncement, or any other title esta-
blished by the laws.
Art. 2. They may also acquire ownership in mines of
SECT, iv.] FOREIGNERS' PRIVILEGES. 59
gold, silver, copper, quicksilver, iron and coal, of which
they may be the discoverers, in conformity with the ordi-
nance of the branch.
Art. 3. Each individual foreigner cannot acquire more
than two country estates in the same department without a
license from the supreme government, and only under the
boundaries which they now have, each independent of the
other.
Art. 4. In the acquisition of town property in the cities,
towns, and villages, as also in the lands contiguous thereto,
in which they may wish to construct new estates, they shall
enjoy the right to so much under similar circumstances
and conditions.
Art. 5. Foreigners who, in virtue of this law, may ac-
quire property, remain absolutely liable in regard to it to
the existing laws, or those which may prevail in the re-
public, as to transfer, use, preservation and payment of
imposts, without the power of alleging any right apper-
taining to being foreigners in regard to those points.
Art. 6. Consequently, all the questions of this nature
which may arise, shall be decided in the ordinary and
usual manner of the national laws, with the exclusion of
all other intervention whatsoever.
Art. 7. Foreigners who may acquire country property,
city property, or property in mines, and foreigners who
may labour in them as servants, labourers, or journeymen,
are not obliged to take part in the service of arms, unless
in the way of police ; but they are to pay the imposts
which have for their object to keep up the militia.
Art. 8. If the foreign proprietor absent himself for more
than two years with his family from the republic, without
obtaining permission from the government, or if the pro-
perty pass by inheritance, or by any other title, into the
possession of persons non-resident in the republic, he shall
be obliged to sell it within two years, counted from the day
when his absence took place, or the change of ownership.
If this be not done, the sale shall be officially proceeded
with, with all the legal formalities, and of the proceeds the
tenth part shall go to the informer ; the nine-tenths remain-
60 MEXICO. [CHAP. m.
ing shall be safely deposited at the disposal of the owner.
This shall always be done when it is proven that the owner
of the estate resides out of the republic, and he who is the
nominal proprietor is only so in place of the absentee.
Art. 9. These arrangements do not include the depart-
ments on the frontier and bordering upon other nations, in
regard to which special laws of colonisation will be enacted,
without the power to foreigners to ever acquire property in
them, without the express license of the supreme govern-
ment of the republic.
Art. 10. In the departments which are not on the fron-
tier, and which may have coasts, only at five leagues'
distance from the coasts can foreigners acquire country
property.
Art. 11. In order that foreigners who may have acquired
property in the republic may be citizens thereof, it is suffi-
cient that they prove before the political authority of the
place of their residence that they are proprietors, that they
have resided two years in the republic, and that they have
conducted themselves well. The expediente drawn up in
this manner will be sent to the proper department, by
which the certificate of citizenship will be issued.
Art. 12. Foreigners cannot acquire royal or public lands
in all the departments of the republic, without contracting
for them with the government which possesses this right
as representing the domain of the Mexican nation.
Decree, Know ye : That the decree of the llth of March of this
i --"{-'. " y ear which so empowers foreigners to acquire landed pro-
perty in the republic, in the manner set forth in the same
decree, having been made public, some doubts have arisen
as to the true meaning of the second article, and appeals
have been brought to the supreme government arising from
the different meaning which has been given to the said
article. In view of all which, and bearing in mind the
respective provisions and ordinances, I have thought proper,
in the exercise of the powers conceded to me by the
seventh of the bases accorded in Tacubaya, and attested by
the representatives of the nation, to declare as follows :
" Natives or foreigners who shall fully prove that they
SECT, iv.] DUTIES TREATIES. 61
have been the restorers of old mines fallen into disuse or
abandoned, shall be considered as discoverers, and con-
sequently empowered by the second article of the decree
of the llth of March of the present year to acquire pro-
perty in mines."
Antonio Lopez de Santa Anna, General of Division, Decree,
Beneonerito of the Country, and Provisional President of the 18 u J:" st
Mexican Republic, to all the inhabitants thereof :
Know ye : That in the exercise of the powers conceded
to me by the seventh of the bases accorded in Tacubaya,
and attested by the representatives of the departments, I
have thought proper to declare as follows :
" The law of the llth of March of this year, which enir-
powered foreigners to acquire landed property, did not
annul that of the 7th of October, 1823."
Since the separation of Mexico from Spain, the ancient Duties and
duties have undergone alteration. By a decree of February cus toms.
20, 1822, the duties for assaying, smelting, and coining
gold and silver were modified. By that decree all the
duties were reduced to three per cent, upon the value of
the metals ; and since 1822 there have been some modifica-
tions of the fiscal laws. The total amount of the present
duties are four and a half per cent, on silver, and three per
cent, on gold. With regard to the expenses of smelting
and assaying the metals, there is no longer any fixed duty,
but simply a trifling charge payable to the Custom-house
authorities, to meet the expenses of their establishment.
Treaties of commerce have since been entered into be- Treaties of
tween the Mexican Republic and the Spanish and United commerce -
States governments (a), and other laws have been passed
for the benefit of the mining interest generally, but they
affect more the administration of the mining laws than the
laws themselves.
(a) Rockwell's Span, and Mex. Laws, edit. 1851, pp. 489, 492.
62 SARDINIA. PONTIFICAL STATES. [CHAP. in.
SECTION V.
ITALY SARDINIA THE PONTIFICAL STATES.
SARDINIA. THE principal laws relating to Sardinia would appear to
have been passed between the years 1723 and 1840 (6),
Laws of but on November 20, 1859, a new code of laws was pro-
1 ft^O
mulgated respecting mines, quarries, and mineral works.
These new laws apply to Lombardy, recently annexed to
Sardinia, as well as to the Marshes, but not to the pro-
vinces of Emilia, TJmbria, Tuscany, and the Two Sicilies,
and are based upon the French laws of 1810 (c).
Govern- Mines cannot be explored without a government grant
!^ant. under the penalty of one hundred francs, in addition
to the confiscation of such of the minerals as may have
been extracted, and compensation to the owner of the soil.
These concessions are granted to foreigners as well as
citizens. The proprietor of the soil has no right of pre-
ference, but the discoverer has, provided he applies for
a concession within six months after the discovery has
been made, and he has sufficient means to carry on the
undertaking. Every application for a concession must be
made to the governor of the province, accompanied by
plans in triplicate, and after the surveyor has verified the
plans, the application is advertised in the official gazette
and local journals at the expense of the applicant ; about
thirty days after the grant is made, and within three months,
the person to whom the grant is made must sign an agree-
ment before the officer of the district to fulfil the conditions
and obligations imposed upon him by the grant. Several
concessions may be given to the same person.
Mines are subject, as in France, to two duties, the one
fixed at fifty centimes the acre, but not in any case less
than twenty francs ; the other proportional, being five per
cent, on the net produce (ct).
(6) Leggi, Decreti, Regolamenti, (c) Ante, p. 32.
concernanti le Sostanzi Mineral!, pp. (rf) Tit. 3, chap. iv. of the Laws,
3 and 4. Torino 1861. 1859, Art. 59-63.
SECT, vi.] RUSSIA. 63
The government has a right, in special cases, to remit,
either wholly or partially, the proportional tax (e).
The Pontifical government has the exclusive right to Pontifica
explore mines in the lands of private persons, and to states -
grant concessions to strangers for the same purpose. The
alum mines of Allumiera, and the vitriol mines in the ter-
ritory of Viterbo, are worked by the government. When
a grant is made, the government imposes whatever condi-
tions it pleases, and the concessionnaires are under an obli-
gation to compensate the owners of the land for all damages
they sustain in consequence of working the mines. The
amount of damages is settled by the government in-
spectors. If the government explores the mines the same
compensation must be paid.
SECTION VI.
RUSSIA.
No Royal Prerogative in Private Lands Grants in Crown Lands Dues and
Taxes Private Rights.
THE royal prerogative in Russia is limited to mines and Royal pre-
minerals situate within the domains of the crown (/). r S atlve -
These domains, unlike other countries, are of vast extent.
They include entire provinces ; for instance, Asiatic Russia,
Siberia, and Kirghisia. But although royal rights are
limited to crown lands, the government has an absolute
control over the sale of all the precious metals, whether
found in crown lands or in the lands of private persons.
Those extracted from the crown lands of Siberia are
obliged to be given up to the authorities, to be sold under
the direction of the government, but the produce is paid to
the owner of the mine (y), after deducting the duties and
expenses of sale.
(e) See French Lois of 1810, Art. (g) Reports of Minister of Com-
58. merce, No. 235, November and De-
(/) M. Tarassenko - Otreschkoff, ceinber, 1844.
chap. xiii. p. 168.
6i
AMERICA.
[CHAP. in.
Grants
!n o
lands.
Iii order to search the crown lands, a license for that
rown purpose must be previously obtained from the government.
The pel-son desiring the license must address a petition to
the authorities at St. Petersburg, stating as near as pos-
sible -the locality which he wishes to explore, and as the
government is very anxious to promote mining operations,
he will experience little difficulty in obtaining a favourable
reply to his request. When he has discovered a mine, he
thereby acquires a right to an absolute concession. In
order to have this concession granted, the licensee must give
a detailed description of the locality of the mine, and of the
nature and character of the strata. This description is
sent to the tribunal of the district, with a petition contain-
ing a declaration respecting the discovery. The application
is then enrolled, and afterwards forwarded to the governor-
general, with a petition from the applicant, soliciting the
government to make the grant and define the limits of the
mine. The matter is then investigated, and if no other
grant has been made, an absolute grant is given to the
licensee.
The dues and taxes imposed upon the mines are very
heavy, and vary in the different States from twenty-five to
thirty per cent.
The aristocracy and landed proprietors of Russia have
secured to themselves greater privileges over their lands
than have fallen to the lot of owners in other States. Even
gold and silver form no exception to their absolute rights.
They may explore their own lands themselves, or grant a
license to others, without the interference of the govern-
ment.
Private
lands.
SECTION VII.
AMERICA.
AMERICA. AMERICA has no universal code of mining laws, and the
decisions of her judges on the various questions which,
from time to time, occur in her law-courts, are the main
sources of authority upon the subject. Many of these de-
SF.CT. vin.] FOREIGN LAWS. G5
cisions are introduced into this work, especially under those
important branches of mining law which relate to water-
courses, and the right of surface and lateral support which
the owners of one mine are entitled to receive from the
owners of an adjoining mine (h).
SECTION VIII.
FOREIGN LAWS, CORPORATIONS, AND COMPANIES.
Foreign Laws and Judgments Action on Foreign Judgments Stay of Proceed-
ings in English Courts whilst Action is Pending in Foreign Courts Pending
Appeal Error in Foreign Judgment Reversing Foreign Judgment Taking
Evidence in Foreign Proceedings, 19 ).
To prove a partnership between a person carrying on Foreign
business in England, and another person carrying on busi-
ness abroad, it is not sufficient to show that the partner
abroad had long traded there under the name of the firm
in England and abroad, some clerks or other persons con-
cerned in the management of the business abroad should
be called to prove it (c) ; and in order to give jurisdiction
over a partnership, one of three circumstances must be
found to exist ; either the domicil of the defendant in the
suit, the subject-matter of the suit, or the partnership con-
tract entered into or required to be performed, must have
been entered into or be within the territorial jurisdiction of
the court (d).
(&) Bill v. Sierra Nevada Lake W. (<) Cockney v. Anderson, 8 Jar.
and Mining Company, 29 L. J. Ch. N. S. 1220; 32 L. C. J. Ch. 305 ; L.
176 ; 1 De G. F. and J. 177. T. N. S. 491 ; Cood v. Good, 3 N. R.
(c) Burgue v. De'Tastet, 3 Stark. 275.
53.
73 RIGHTS OF THE CROWN. [CHAP. iv.
THE LAW RELATING TO MINES, MINERALS,
AND QUARRIES IN THE UNITED KINGDOM
OF GREAT BRITAIN AND IRELAND.
CHAPTER IV.
EIGHTS OF THE CROWN :
BY PREROGATIVE.
BY SEIGNIORY.
BY STATUTE.
The Existence of Minerals known to tJie Phoenicians, the Greeks, and the Romans
Classical Authorities Mines under the Romans The Civil Law Eights
of the Crown, from the Period of the Norman Conquest, reviewed Protests of
the Miners and Landowners against Royal Claims The Great Case of Mines
Confirmation of Royal Rights and Private Rights, ly Statutes 1 Witt. $ M.
c. 30; 5 W. $ M. c. 6 Rights of the Crown to Minerals under the High Seas
The Sea-shore Definition of the Sea-shore Rights of the Crown and
Duchy of Cornwall defined ly 21 # 22 Vic. c. 109 Right of the Crown to
Mines in Derbyshire, Forest of Dean, Wales, Ireland, and Scotland.
BY reference to classical authorities we learn tliat from
remote times the British Isles were known, and believed
by some, to produce the precious, and by others the baser,
metals. Borlase, in his "Antiquities of Cornwall," gives
very sound reasons for supposing that the Phoenicians dis-
nicians. covered Britain more than six hundred years before Christ,
and that they traded with us solely, and without the least
participation of other nations, for more than three hundred
years ; and what they came for we learn from Strabo, who
says that from the Cassiterides the Phoenicians obtained
their treasures of tin (a). Indeed, it is very probable that
although Katro-irtpos means tin, these islands were called
( a) Strabo, lib. iii. de Cassiter.
CHAP, iv.] CLASSICAL AUTHORITIES. 73
the Tin Islands (Cassiterides), not by the Greeks, but by the
Phoenicians, for they were so called long before the Gre-
cians either traded here, or knew where the islands lay.
Herodotus says that he knew nothing of the islands Cassi-
terides, from whence their tin came. It is not likely,
therefore, that the Greeks would give a name to islands
they knew not where to find, and, consequently, had no
communication with, but through the Phoenicians ; and, as
the Chaldseans and Arabians call tin by a name of like
sound (&), it is a just inference that the name Cassiterides
was given by the Phoenicians.
Polybius, who flourished two hundred and four years The
before Christ, promised to write of the British Isles, and of
their method of preparing tin (c) ; and Strabo says he kept
his promise, but unfortunately this work of Polybius, with
other useful compositions of the same author, is lost.
Nearly three hundred years, however, before Polybius,
Herodotus, in writing about Europe, says that the Greeks
obtained their tin from the furthest part of Europe, the tin
country alluded to being evidently Cornwall. He says,
" 6> l tfx^ rr l s 'Evpownjs 6 Kaa-criTfpos f]^'iv faira (cT). The language
of Strabo, who was born the same year that Csesar invaded
Britain, 1S, 0epei, xal xpvvov, KOI dpyvpov, Kal aidrjpov.
Tacitus (A.D. 61), in entering upon his description of
the Ancient Britons, represents them as " Multis scrip- The
toribus memoratos;" but, as our references have to do Komans -
especially with the mines of Britain, I shall restrict
myself to those Roman authorities who speak upon this
subject. Ca3sar, who invaded Britain before Christ 54,
writes that tin was produced in the midland, and iron in
the maritime counties. He says, "Nascitur ibi plum-
bum album in Mediterraneis regionibus, in maritimis
ferrum, sed ejus exigua est copia; aere utuntur impor-
tato" (e). Caesar was evidently incorrect as to the locality
of the tin mines, seeing they occupy not the midland coun-
ties, but the south-western extremity. Tacitus, in his
0) NTOD^p NTlBDp, (d) Herod, iii. 115.
( c ) TTJS Kaor) Gifford v. Lord Yarborough, 5
Bing. 164 ; Rex v. Lord Yarborough,
3 B. & C. 91 ; Lowe . Govett, 3 B.
& Ad. 863 ; S. C. 1 L. J. K S. K. B.
224 ; see re Hull & Selby Railway ;
5 M. & W. 327; Att-Gen. v. Cham-
bers; Att.-Gen. v. Rees, 4 De Gex,
M. & G. 206 ; 4 De Gex & J. 55 ;
Att.-Gen. . Chamberlaine, 4 K. &
J. 292, post, p. 153.
(?) Inst. 260<>, note, 205; Selden's
MareClausum; Hale de Jure Maris,
11 ; Gifford v. Yarborough, and cases
cited supra.
(r) Att.-Gen. v. Chamberlaine,
supra, and see post, " Prescription."
() 23 L. J. Chan. 665.
CHAP, iv.] UNDER THE SEA-SHORE. 91
action of the sun and moon upon the ocean. But this de-
finition, even thus expounded by the authorities of the civil
law, is clearly not the rule of the common law of England.
Justice Holroyd, no mean authority, in his very elaborate
judgment in the case of Blundell v. Catterall (), mentions
this as one of the instances in which the common law
differs from the civil law, and says that it is clear that, ac-
cording to our law, it is not the limit of the highest tides
of the year, but the limit reduced by the highest ordinary
tides of the sea, which is the limit of the shore belonging,
prima facie, to the crown. What, then, are the highest
ordinary tides ? Now we know that, in fact, the tides of
each day differ, in some degree, as to the limit which they
reach. There are the spring tides at the equinox, the
highest tides of all ; these clearly are excluded in terms by
Lord Hale, both in page 12 and in page 26 of his treatise
* De Jure Maris ;' for though, in one sense, these are ordi-
nary, that is, according to the usual order of nature, and
not caused by the accidents of the winds and the like, yet
they do not ordinarily happen, but only at two periods of
the year. These, then, are not the tides contemplated by
the common law, for they are not the ordinary tides, not
being of common occurrence. This may, perhaps, apply
to the spring tides of each month, exclusive of the equi-
noctial tides ; and, indeed, if the case were without distinct
authority upon this point, that is the conclusion at which
we might have arrived. But then we have Lord Hale's
authority in page 26 of De Jure Maris, who says, * Ordi-
nary tides or neap tides which happen between the full
and change of the moon are the limit of that which is
called littus maris ;' and he excludes the spring tides of the
month, assigning as the reason, that the lands beyond them
are, for the most part of the year, dry and manurable ;
that is to say, not reached by the tides. And to the same
effect is the case of Lowe v. Govett (u), which excludes
the monthly spring tides also. But we think that Lord
Hale's reasoning may guide us to the proper limit. What,
(0 5 B. & Aid. 268. () 3 B. & Ad. 863; 1 Law J.
N. S. K. B. 224.
92 RIGHTS OF THE CROWN. [CHAP. iv.
then, are the lands which, for the most part of the year,
are reached and covered by the tides ? The same reason
that excludes the highest tides of the month which happen
at the springs, excludes the lowest high tides which happen
at the neaps ; for the highest or spring tides and the lowest
high tides (those at the neaps) happen as often as each
other. The medium tides, therefore, of each quarter of
the tidal period afford a criterion which, we think, may be
best adopted. It is true of the limit of the shore reached
by these tides, that it is more frequently reached and
covered by the tide than left uncovered by it ; for about
three days it is exceeded, and for about three days it is left
short in each week, and in one day it is reached. This
point of the shore, therefore, is about four days in every
week, that is, for the most part of the year, reached and
covered by the tides ; and as some, not indeed perfectly
accurate, construction, but approximate, must be given to
the words t highest ordinary tides' used by Justice Holroyd,
we think, after fully considering it, that this best fulfils the
rules and the reasons for them given in our books.
" We, therefore, beg to advise your lordship that, in our
opinion, the average of these medium tides in each quarter
of a lunar revolution during the whole year, gives the
limit, in the absence of usage, to the rights of the crown
on the sea-shore."
In the same case the Lord Chancellor delivered his judg-
ment as follows : " The question for decision in this case is,
what is the extent of the right of the crown to the sea-
shore ? The right of the crown to the littus maris, what-
ever that means, is not disputed. The question is, what is
the littus mans ? Is it so much as is covered by ordinary
spring tides, or is it something else ? The rule of the civil
law was ' Est autem littus maris quatenus hybernus fluctus
maximus excurrit.' This is certainly not the doctrine of
our law. All the authorities concur in the conclusion, that
the right is confined to what is covered by t ordinary' tides,
whatever be the right interpretation of that word { ordi-
nary.' By 'hybernus fluctus maximus' is clearly meant
extraordinary high tides ; though speaking with physical
CHAP, iv.] UNDER THE SEA-SHORE. 93
accuracy, the winter tide is not in general the highest.
Land covered only by these extraordinaiy tides is not what
is meant by the sea-shore. Such tides may be the result of
wind, or other causes independent of what ordinarily re-
gulates the flux and reflux.
"Setting aside these accidental tides, the question is,
What is the meaning of ordinary ? It is evidently a word
of doubtful import. In one sense the highest equinoctial
spring tides are ordinary tides, that is, they occur in the
natural order of things. But this is evidently not the
sense in which the word 'ordinary' is used when desig-
nating the extent of the crown's right to the shore. This
is apparent from Lord Hale's treatise, De Jure Maris ?
pp. 12, 25, which is, in truth, nearly all the authority we
have to guide us. Lord Hale says, at page 12, 'The next
evidence of the king's right and property in the sea and
arms thereof is his right of property to the shore and the
maritima incrementa.' Then, 'for the shore, it is ad-
mitted that, de jure communi, between the high-water and
low-water mark doth, prima facie, belong to the king.'
Then, in a subsequent passage to which reference has been
made, pages 25 and 26, concerning the right the subject
may have in the sea-shore, he says, l The shoar of the sea.
There seem to be three sorts of shears, or littora marina,'
&c. Then, again, he refers to those two old cases to
which he referred before. Then he says, * Ordinary tides,
or nepe tides,' using those two words as synonymous,
' which happen between the full and change of the moon ;
and this is that which is properly littus maris, sometimes
called marettum, sometimes warettum ; and touching this
kind of shoar, viz. that which is covered by the ordinary
flux of the sea, is the business of our present inquiry.'
Disregarding, then, these extreme high tides, we next
come to the ordinary spring tides, that is, the spring tides
of each lunar month. No doubt, speaking scientifically,
they probably may differ, but, practically, these differ-
ences may be disregarded. Lord Hale gives no absolute
opinion, but he evidently leans very strongly against the
right to lands covered only by spring tides, and refers to
9-j. EIGHTS OF THE CROWN. [CHAP. nr.
decisions which support his views. Then he describes
ordinary tides as if synonymous with neap tides. This
leaves the question very much at large, and there is very
little of modern authority. In Blundell v. Catterall (r),
Mr. Justice Holroyd says, 'By the common law it, that
is, the sea-shore, is confined to the flux and reflux of the
sea at ordinary tides, meaning the land covered by such
flux or reflux.' Still the question arises, What are ordi-
nary tides ? The nearest approach to direct authority is
Lowe v. Govett (w). There certain recesses on the coast
covered by the high-water of ordinary spring tides, but not
by the medium tides between spring and neap tides, were
held not to pass under an Act of Parliament which vested
in a company an arm of the sea daily overflowed by it.
Lord Tenterden held that these recesses were not ordi-
narily overflowed by the sea, which shows clearly that he
did not consider the overflowing by ordinary spring tides
to be what is meant by ordinarily overflowing; and both
Mr. Justice Littledale and Mr. Justice, now Baron, Parke
concur in saying that the recesses in question were above
ordinary high-water mark; clearly showing their opinion
to be, that what is meant by ordinary high-water mark is
not so high as the limit of high water at ordinary spring
tides. There is, in truth, no further authority to guide us ;
for the question did not arise in either of the cases of the
Attorney-General v. Burridge ( t r) and the Attorney-General
v. Parmeter (y). In this state of things we can only look
to the principle of the rule which gives the shore to the
crown. That principle I take to be, that it is land not
capable of ordinary cultivation or occupation ; or, accord-
ing to the description of Lord Hale, as generally dry and
manurable ; and so it is in the nature of unappropriated
soil. Lord Hale gives as his reason for thinking that lands
only covered by the high spring tides do not belong to the
crown, that such lands are, for the most part, dry and
manurable ; and, taking this passage as the only authority
at all capable of guiding us, the reasonable conclusion is,
(v) See snprti. ( x ) 10 Price, 350.
(>) See suprfc. ( y Ibid. 378.
CHAP, iv.] UNDER THE SEA-SHOEE. 95
that the crown's right is limited to lands which are, for the
most part, not dry or manurable.
" The learned judges whose assistance I had in this very
obscure question point out the limit indicating such land as
the line of the medium high tide between the springs and
the neaps ; all lands below that line are more often than
not covered at high water, and so may justly be said, in
the language of Lord Hale, to be covered by the ordinary
flux of the sea. This cannot be said of any land above
that line ; and I therefore concur with the able opinion
of the judges whose valuable assistance I had, in thinking
that that medium line must be taken as the boundary of
the right of the crown. I cannot give any further direc-
tion at present." The Solicitor-General. " Will your lord-
ship permit me to observe, in order that there may be no
misapprehension, that I take the decision to be this, that
the medium filwn is to be the medium filwn of all tides
throughout the year that is, including the spring tides,
the equinoctial tides, as well as the other?" The Lord
Chancellor. " Yes." Mr. E. Palmer. " And ordinary
tides?" The Lord Chancellor. "I call for that purpose
ordinary the ordinary equinoctial. I do not include in
that anything that we sometimes hear of, when all the
marshes are overflowed by some extraordinary operation of
wind and tide."
From the cases of Attorney-General v. Chambers and inquiry
Attorney-General v. Rees, before cited, it appears that ^meeting
Mr. Rees had been working a coal mine under the sea- a colliery
shore. The evidence established the fact that the work- der the
ings extended about one hundred and twenty yards to sea-shore.
the south beyond the high-water mark of the spring tides,
but not beyond the high-water mark at neap tides ; and
Chehnsford, Lord Chancellor, in delivering judgment, said,
" The rights of the crown neither extend to the spring tides
nor are confined to the neap tides, but their limits are the
ordinary or medium tides ;" and directed an inquiry whe-
ther the mines had been worked below the present or former
line of high water at ordinary tides (2).
() See 4 De G. & J. 73.
96 RIGHTS OF THE CROWN. [CHAP. iv.
If the subject .asserts a prescriptive right to the whole of
uvc right. t j ie sea . s ] lorej ] ie w jii have t o giv e evidence of such acts of
ownership, in the absence of an actual grant, as would be
sufficient to lead a jury to presume that there was once a
grant of the fore-shore ; this may be done, for instance, by
showing that certain portions of the property, upon which
they have erected valuable buildings, or the like, were
formerly part of the fore-shore (a).
That part of the sea-shore which lies between high and
low-water mark belongs to, and is part, of the adjoining
county (&). The sea-shore below high water is an extra-
parochial place for certain purposes and under some cir-
cumstances (c).
Rights of It is only necessary further to remark that until very
and "duchy recently doubts existed and questions had been raised as
defined. to the respective rights of the crown and H. R. H. the
Duke of Cornwall to mines and minerals lying under the
sea-shore between high and low-water marks, and the
estuaries and tidal rivers in the county of Cornwall ; and
also as respects the open sea below low-water mark ad-
jacent to, but not in, or part of, the said county. These
unsettled questions were at length decided by an act of
the British Legislature, and at the same time provision was
made for settling by arbitration any differences, which
might afterwards arise in reference thereto. The Act of
Parliament we refer to, the 21 & 22 Vic. c. 109, is called
" An Act to declare and define the respective rights of her
Majesty and of His Royal Highness the Prince of Wales
and Duke of Cornwall to the mines and minerals in or
under land lying below high-water mark, within and
adjacent to the county of Cornwall, and for other pur-
poses."
And after reciting an agreement dated 1st July, 1858,
made and entered into on behalf of the crown and His
Royal Highness the Prince, it was declared that :
(a) See Att.-Gen. r. Chamberlaine, also Reg. v. Musson, 27 L. J. Q. B.
ante, p. 90. 222.
(6) Embleton v. Brown, 30 L. J. (c) Reg. on pros, of Earl Darby v.
M. C. 1; 6 Jur. N. S. 1298 ; see Gee, 28 L. J. Q. B. 298.
CHAP, iv.] UNDER THE SEA-SHORE. 97
"1. All mines and minerals lying under the sea-shore The rights
between high and low-water marks within the said county ) u t e e f
of Cornwall, and under estuaries and tidal rivers and other Cornwall,
places (below high-water mark), even below low-water
mark, being in and part of the said county, are, as between
the Queen's Majesty in right of her crown on the one
hand, and His Royal Highness Albert Edward Prince of
Wales and Duke of Cornwall in right of his duchy of Corn-
wall on the other hand, vested in His said Royal Highness
Albert Edward Prince of Wales and Duke of Cornwall
in right of the duchy of Cornwall as part of the soil and
territorial possessions of the said duchy; but this declara-
tion is not to extend to the mines and minerals in or under
land below high-water mark which is part and parcel
of any manor belonging to Her Majesty in right of her
crown.
2. All mines and minerals lying below low-water mark Rights of
under the open sea, adjacent to, but not being part of, the the cr Tirn -
county of Cornwall, are, as between the Queen's Majesty
in right of her crown on the one hand, and His Royal
Highness Albert Edw r ard Prince of Wales and Duke of
Cornwall in right of his duchy of Cornwall on the other
hand, vested in Her Majesty the Queen in right of her
crown as part of the soil and territorial possessions of the
crown.
3. It shall be lawful at all times hereafter for Her Majesty, Liberty to
her heirs and successors, and all and every persons and w ? rk s ? ch
7 . . . i v minerals.
person who may for the time being be entitled in right of
the crown to or to the management of any of the said
mines and minerals lying below low-water mark under the
open sea, adjacent to but not being part of the county of
Cornwall aforesaid, and for her and their lessees or tenants,
when and so often and so long as may be necessary for
the purposes hereinafter expressed, to take or use or to
pass through, over, or under any lands for the time being
parcel or the soil and territorial possessions of the said
duchy within the said county, and which lands shall be
either in the occupation of tenants under leases or agree-
ments made subsequently to the date of this Act, or in the
H
98 EIGHTS OF THE CROWN. [CHAP. iv.
occupation of the Duke of Cornwall for the time being,
in order to make or sink any pits, shafts, adits, drifts,
levels, drains, watercourses, pools, or embankments, and to
make, lay, place, use, and repair any spoil banks, roads,
ways, bridges, and banks, and to make, erect, and repair
any lodges, sheds, steam and other engines, buildings,
works, and machinery in, under, upon, through, over, or
along the said lands, or any part thereof, which may from
time to time or at any time hereafter be required, and to
do all such other acts as may be necessary or convenient
for working, searching for, digging, raising, or carrying
away, dressing, or making merchantable the same mines
and minerals, giving to the Duke of Cornwall for the time
being, and to any other person or persons who for the time
being may be interested in the land so required, two months'
previous notice thereof, stating the nature of the facilities
required, and also making compensation and satisfaction to
the Duke of Cornwall for the time being, and to other
the person or persons, if any, for the time being interested
in the said lands so taken or used to pass through, over,
under, or along in the manner herein mentioned : Provided
always, that no pit, shaft, adit, drift, level, drain, water-
course, pool, or embankment which shall or may weaken,
damage, injure, or endanger any house or other building,
shall be sunk, driven, or made, nor shall any tram-road,
waggon, or other way, or any works or machinery, be
placed, laid, made, or erected, nor shall any minerals be
dressed or made merchantable within fifty feet of any
dwelling-house, or upon any garden or orchard, or so as
to interfere with any mining works or operations for the
time being of the Duke of Cornwall for the time being,
his lessees or tenants.
Compeasa- 4. Provided also, that Her Majesty, her heirs or succes-
sors, or other the person or persons making use of the said
facilities, or any of them, shall make to the Duke of
Cornwall for the time being, and other the person or
persons, if any, for the time being interested as aforesaid,
compensation and satisfaction for such facilities, and for
any damage or injury occasioned thereby or consequent
CHAP, iv.] UNDER THE SEA-SIIORE. 99
thereon, to be ascertained as hereinafter provided; and
further, that Her Majesty, her heirs or successors, or other
the person or persons making use of the said facilities, or
any of them, do and shall make, erect, and keep good and
sufficient gates, rails, bars, or posts in all places where the
same shall be necessary or proper, to shut up or enclose
any breach, gateway, or opening which shall be made from
time to time in any of the fences of the said lands, and
shall also make all conveniences necessary and proper for
the convenience and safety of the owners or occupiers for
the time being of the said lands and other lands adjoining
thereto, and of the public, in order to prevent any damage
or inconvenience and trespasses upon the same lands, or
any of them, by cattle or other animals.
5. In all cases where the said facilities or any of them Amount
shall be used upon, through, over, under, or along lands a ? d m d ^
lying between high-water mark and low-water mark, part taining
of the soil and territorial possessions of the duchy of Corn- ^
Avail, the compensation and satisfaction to be made shall be
a sum equal to one-fifteenth part of the net dues or monies
to be from time to time received by Her Majesty, her heirs
or successors, from the mines and minerals lying below
low-water mark as aforesaid, which shall be worked and
gotten by means of the said facilities, or any of them, in
addition to compensation and satisfaction for or in respect
of any building, wharf, or other artificial structure on the
said lands which may be injuriously affected by the said
facilities being used upon, through, over, under, or along
the same, such compensation and satisfaction to be settled
in the same manner as the compensation and satisfaction
hereinafter provided for ; and that when the said facilities
or any of them shall be used on, through, over, under, or
along any land other than lands lying between high-water
mark and low-water mark as aforesaid, if the amount of
compensation and satisfaction to be made for the same
shall not be determined by agreement, then and in every
such case the matter in difference shall be settled by arbi-
tration by two arbitrators, one arbitrator to be named by
the officer for the time being having the management of
H2
100 RIGHTS OF THE CROWN. [CHAP. iv.
the land revenues of the crown in Cornwall, and another
arbitrator to be named by the Duke of Cornwall for the
time being, or by the council of the Duchy for the time
being, or by other the person or persons, if any, for the
time being interested in the said lands so to be used as
aforesaid, and the matter in difference shall be determined
by the said arbitrators, or by an umpire to be appointed by
them before they shall enter upon the reference ; and if
such arbitrators or either of them, or such umpire, shall die
or refuse or for seven days neglect to act, other persons or
another person shall forthwith be named or appointed to
supply the places or place of the persons or person so dying
or refusing or neglecting to act, in the same manner as
such last-mentioned persons or person were or was named
or appointed ; and further, the said arbitrators or umpire
shall determine by whom and how the costs of the reference
and award or umpirage shall in each case be paid, and they
or he may call for any documents in the possession or power
of either of the parties which may be deemed necessary for
determining the matter in difference, and may summon and
examine upon oath any witness, and administer the oath for
that purpose.
Her Ma- 6. Provided always, that Her Majesty, her heirs or suc-
liabie'for cessors j shall not be liable to the payment of compensation
damage for any damage done by any lessee or other person in or
a b ut an y searching or working for mines or minerals under
the authority of this Act, but that such compensation shall
be payable and paid by the lessee or other person com-
mitting such damage, his heirs, executors, or administrators.
Arbitra- 7. J n case any difference shall at any time arise as be-
tween the Queen's Majesty in right of her crown, or any of
her tenants under leases or agreements made subsequently
to the passing of this Act on the one hand, and the Duke
of Cornwall or any of his tenants, under leases or agree-
ments made subsequently to the passing of this Act, on the
other hand, as to the true line of high-water mark or of
low-water mark, every such difference shall be settled by
arbitration or umpirage, in the same manner and subject
to the same conditions in all respects as is by this Act pro-
CHAP, iv.] UNDER THE SEA-SHORE. 101
vided for the ascertainment in certain cases of the com-
pensation and satisfaction to be made for the exercise of
the facilities by this Act conferred with reference to the
working of mines and minerals below low-water mark ad-
jacent to the county of Cornwall.
8. In this Act the following expressions and words shall Interpreta-
have the several meanings hereby assigned to them, unless ^ms
there is something in the context repugnant to such con-
struction ; the expressions ( Duke of Cornwall,' and ' Duke
of Cornwall for the time being,' shall comprehend the per-
sonage for the time being entitled to the revenues of the
Duchy of Cornwall, and shall include Her Majesty, her
heirs and successors, when there be no Duke of Cornwall ;
the expression ' mines and minerals,' shall comprehend all
mines and minerals, and all quarries, veins, or beds of stone,
and all substrata of any other nature whatsoever, and the
ground and soil in, upon, and under which such mines and
minerals, quarries, veins, or beds of stone, and other sub-
strata lie ; and the words l the county of Cornwall,' shall
mean the said county exclusive of any lands added thereto
or taken therefrom by an Act passed in the seventh and
eighth years of the reign of Her present Majesty, chapter
sixty-one.
9. Saving always to all and every persons or person, General
bodies politic or corporate, and their respective heirs, sue- s ^^
cessors, executors, administrators, and assigns (other than
and except Her said Majesty, her heirs and successors, in
right of the crown, and His said Royal Highness Albert
Edward Prince of Wales and Duke of Cornwall, and his
successors, in right of the Duchy of Cornwall aforesaid,
and all and every the person or persons, bodies politic or cor-
porate, claiming or to claim under or by virtue of any
grant, lease, agreement, or assurance made or entered into
by Her said Majesty, her heirs or successors, in right of the
crown, or His said Royal Highness, or his successors, in right
of the Duchy of Cornwall aforesaid, or the council of the
Duchy of Cornwall, at any time or times subject to the
passing of this Act), all such estates, rights, titles, claims,
and demands, whatsoever as they or any of them had pre-
102 RIGHTS OF THE CROWX. [CHAP. iv.
vious to the passing of this Act, or might or could have had
in case this Act had not passed.
Short title. 10. In citing this Act in any Act of Parliament, deed,
or other legal instrument, it shall be sufficient to refer to it
as < The Cornwall Submarine Mines Act, 1858.' "
The sovereign is also the owner in right of the Duchy of
u er by. Lancaster to some of the lead mines of Derbyshire, and in
shire. right of the crown to the coal and iron mines and quarries
Forest of of the Forest of Dean in Gloucestershire, but the respec-
Dean. tj ve rights of the crown and the subject in these districts,
have been defined by recent Acts of Parliament, and are
fully considered in subsequent chapters of this Treatise
(d).
WALES. The principality of Wales was united to England in the
reign of Henry VIII., and by a statute (e) passed in that
reign, the laws of England, and no others, were to be used
in that principality. By another statute (/), it was, perhaps,
superfluously declared, that whenever England is men-
tioned in any Act of Parliament, Wales should be thereby
comprehended. The royal prerogative to gold and silver
consequently extends to this part of Her Majesty's do-
minions, and as some recent discoveries have taken place,
questions of an interesting nature may occur. In such an
event the preceding observations on royal rights to mines
and minerals in England will be applicable (g).
IRELAND. The common law of England applies to Ireland, and the
laws relating to mines are nearly the same in both countries.
To make this plain, we remark that, formerly the Brehon law
(so called after the judges, who were named brehons) pre-
vailed in Ireland (A), but King John, in the twelfth year of
his reign, went into that country, and there, " by the advice
of grave and learned men whom he earned with him," by
Parliament, de communi omnium de Hibernia consensu,
ordained and established that Ireland should be governed
by the laws of England (i), and not by the ancient Brehon
(d) See post, "Local Customs, Der- (g} See ante, pp. 75, 87-89.
byshire, Gloucestershire." (h) Co. Inst. vol. iv. c. 76, p. 358.
(e) 27 Hen. VIII. c. 26. (t) Co. Litt. 14.1% 142".
CO 20 Geo. II. c. 42, s. 3.
CHAP, iv.] IRELAND. 103
or customary laws. The introduction of the common law
of England into Ireland, would therefore unquestionably
date from this period, although many of their princes
swore allegiance to Henry II., and obedience to the laws
of England A.D. 1172 (/). And at a parliament holden
in Ireland by Howel Duke of Clarence, lieutenant there,
anno 40 Ed. III., at Kilkenny, it was declared that the
Brehon law was no law, but a lewd " custome" crept in of
later times, and that it never was the law of the ancient
" Britaines" from whom they were descended (&).
By another Act of Parliament, called Poyning's law,
passed in the tenth year of Henry VII., it was enacted that,
all statutes made in this realm of England before that
time, should be of force and be put in use within the
realm of Ireland (/). But although the common law of
England was thus early established in Ireland, it was not
so early or universally recognised. For a considerable
period afterwards the more remote districts from the seat
of government, continued in a great measure to govern
themselves by their ancient laws, and even in the imme-
diate neighbourhood of the government, the newly esta-
blished laws were frequently disregarded. Poyning's law
Avas repealed in 1782, and by the 39 and 40 Geo. III. c.
67, Great Britain and Ireland were united into one king-
dom. Since the union, all Acts of Parliament extend to
Ireland, as an integral part of the empire, whether ex-
pressly mentioned or not, unless that portion of the
United Kingdom be expressly excepted, or the intention to
except it be otherwise plainly shown (m).
Long before the union of the two countries, the crown Royal pre-
had the same claim to mines in Ireland, as in England.
In the early part of the reign of Edward I., the mines
in Ireland produced silver as well as copper, and other
minerals, and were thought of sufficient importance to
merit the attention of government. The king, therefore,
(j) Ferguson's Exch. Practice, Ire- (f) Ferguson's Exch. Ireland, in-
land, vol. i. intro.; Black. Com. by tro. ; Dwarris's Stat. p. 903.
Stephens, vol. i. p. 92, ed. 18iJ8. () Dwarris's Stats, p. 526; Black.
(fc) Coke Inst. vol. iv. cap. 76, p. by Stephens, vol. i. p. 96.
359.
104 RIGHTS OF THE CROWN. [CHAP. rv.
in a writ directed to Robert de Offord, who was Lord
Justice of Ireland, 1276, and the Bishop of Waterford,
his treasurer, there commanded those persons to cause such
mines to be opened and worked (n). And by another writ
directed to Nicholas de Clare, the application of the king's
treasure to the working of his newly-discovered silver,
copper, lead, and iron mines in Ireland, was authorized,
and Edward III. repeated the command (o).
Richard II., in the third year of his reign, granted to
the owners of the soil in Ireland, the privilege of digging
within the boundaries of then" own lands, for gold, silver,
and the precious metals, for the limited period of six years
only, on condition that one-ninth part thereof be rendered
to the king.
These acts of the three sovereigns of England though
slight, are nevertheless, sufficient evidence of the advances
made by the kings of England to mines in Ireland (p) } since
the union of the two countries, if not before. The sove-
reign right to mines of gold and silver is the same in both
countries (q).
SCOTLAND. The common law of Scotland differs materially from
that of England and Ireland, and the prerogative of the
crown to mines in the first -mentioned country, was
abandoned in the reign of James VI. By virtue of a
statute passed in that monarch's reign, A.D. 1592, the
ancient prerogative of the crown over all mines whatsoever
in Scotland, was released to private persons, subject only
to the payment of a royalty, which was fixed at one- tenth
of the produce. Before that period gold mines were en-
tirely and absolutely the property of the crown, and so
were silver mines, when three-halfpence of silver could be
extracted from a pound of lead (?). Tin, lead, and copper,
were also most probably inter regalia, by the common law ;
but it was resolved by the judges in 1755, that mines of
lead and copper were not, either by the common law, or by
00 Pat. 4 Ed. I. m. 10. (2) See ante, pp. 75, 87-89.
(o) Pat. Roll. 17 Ed. I. m. 8. (r) 1424, c. 12.
(p) Smirke's Stan. app. 5.
CHAP, iv.] SCOTLAND. 105
the statute of James, among the regalia (s), and, therefore,
from that period, no other metals but the precious metals
of gold and silver only, were among the regalia of Scot-
land. It is important to understand this question, because
by the statute of 1592, a tenth of the produce of all mines
which were inter regalia is reserved to the State; and
whilst the decision above referred to excludes lead and
copper, the statute of James VI. makes no exception what-
soever, but refers to all mines as being then in the gift of
the crown. The law existing before and since the statute
of 1592 is thus stated (t) : " Gold mines are, by 1424,
c. 12, declared to belong to the king without limitation ;
and silver mines, when they are of such fineness that three
halfpennies of silver can be extracted from a pound of
lead." The three halfpennies were in the reign of James I.
equal in intrinsic value to about two shillings and five
pennies of our present Scotch money, according to Ruddi-
man (M). It appears by the act of 1592, that not only
mines of gold and silver, but of tin, copper, and lead, had
formerly been annexed to the crown, and so not alienable
without consent of Parliament ; but they are by that
statute dissolved from the crown, and it is made lawful to
the king, to set in feu-farm not to any of his subjects in-
discriminately, but to the baron or other freeholder of the
ground, all metals or minerals that may be found within
his own lands, on payment of the tenth part to the king,
without any deduction of charges ; and in case the free-
holder should refuse to work them, the king may then, and
then only, either work them for his own use or feu them
to others. The meaning of this statute is in two material
articles now fixed by decisions ; first, that by the words " it
shall be lawful to His Majesty," a positive right is conferred
upon the freeholder by which he may demand a grant from
the crown, in pursuance of the statute, Falc. 2, 120 (t),
(s) Erskine's Law of Scotland, p. Ivory, ed. 1828, book ii. title 6, sec.
187; Sir A. Murray's case in Brown's 16, p. 356.
Supplement. Diet, of Decisions, vol. v. fit) See Pref. to Dipl. Scot. p. 82.
p. 836. (t>) E. of Hopeton, Jan. 4, 1750 ;
(0 Erskine's Inst. of Scot, by Diet. p. 13527.
106 EIGHTS OF THE CROWN. [CHAP. iv.
not in his character as vassal of the crown, but as owner
of the soil (w) ; secondly, that by the word freeholder, is
understood, in this question, not the superior of the lands
in which the mines lie who hold immediately of the crown,
but the proprietor, though he should hold of a subject (a-) ;
and, thirdly, that the law of Scotland differs from the
English law in this respect, namely : that whilst in Eng-
land the crown has an absolute right to all gold and silver (j/),
in Scotland gold and silver belong to the owner of the
soil, subject to the payment of a royalty to the crown of
one-tenth of the value of the ore without any deduction
for expenses.
Since the union of Scotland, 5 Anne, c. 8, A.D. 1706,
with England, all acts of the British Legislature extend to
Scotland, unless there be an express proviso excluding that
portion of the empire, or the intention to exclude it be
otherwise sufficiently indicated (z).
(vi) Bell's Principles of Scotch Law, (/) As to gold mines in the Duchy
5 edit. p. 261. of Cornwall, see post, p. 128.
(*) Dec. 7, 1739, D. of Argyle; (z) Dwarris's Stat. p. 526; Rex v.
Diet. p. 13526. Cowle, 2 Burr. 853.
CHAP, v.] DUCHY OF CORNWALL. 107
CHAPTER V.
EIGHTS OF THE DUCHY OF CORNWALL.
SECTION I.
Charters of Edward HI. Creation of Duchy, Grant of Manors in Cornwall and
Devon Habendum Strict Entail Explanation of Charter Prince's case.
Sale of some of the Manors Reservation of Minerals. Assession Court
Commission for holding Court Proceedings at the Court Fines Acknow-
ledgments Fealties Heriots Conventionary Tenant's Right Dispute as to
Minerals Rowe v. Brenton Legislative Enactments 7 <$ 8 Vic. c. 105
Commissioners' Award Duke's Title to Work Minerals Compensation to
Tenants Arbitration Private Rights Tin Bounds protected Confirmation
of Awards 11
being used for workhouses, or for other purposes relating
to the relief of the poor. And by 20 & 21 Vic. c. 13,
being an Act to facilitate the procuring of sites for work-
houses, in certain cases provision is made for the execution
of any such deed by the Duke of Cornwall, and which
must be executed in accordance with the provisions of 1 & 2
Vic. c. 23. And by 1 & 2 Vic. c. 107, entitled "An Act
to Amend and render more Effectual the Church Building
Acts," lands of the duchy may be conveyed for the pur-
poses of the said Church Building Acts, and for the other
Acts therein recited (section 8). Also by 4 & 5 Vic. c. 38,
s. 4, for sites for schools, which said last-mentioned Act is ex-
tended by 15 & 16 Vic. c. 49, and amended and defined
by 7 & 8 Vic. c. 37, 12 & 13 Vic. c. 49, and 14 & 15
Vic. c. 24 ; and by 7 & 8 Vic. c. 65, the prince, his heirs
or successors, out of the lands of the duchy may give,
grant to, and vest in any person or body politic or cor-
porate, any building proper to be used or converted into a
church or chapel or parochial or district school, and any
ground proper for the site of any church or chapel, or for
a cemetery or burial-ground, or any house (with or without
a garden) proper for the residence of the spiritual person
who may serve any such church or chapel, or of the master
or mistress of such school, and any ground proper for any
such site as aforesaid. The same power is extended in a
limited sense, so as to apply to dissenters (y\
By the 7 & 8 Vic. c. 65, the Duke of Cornwall is enabled Sales and
(x) 21 & 22 Vic. c. 109 ; ante, p. 96. (y) 26 & 27 Vic. c. 49, s. 36.
134 DUCHY OF CORNWALL. [CHAP, v
to sell and exchange lands, and enfranchise copyholds, and
to purchase leases, parcels of the possessions of the duchy
of Cornwall, and to purchase other lands, and directions
are therein given for effecting any of such sales, exchanges,
enfranchisements, or purchases. And in the second schedule
to the said Act, forms of conveyances on sales, exchanges,
enfranchisements, and purchases are given. By 25 & 26
Vic. c. 49, the prince is authorized on attaining his
majority to complete the contracts entered into by his
council, under the said Act of 7 & 8 Vic. c. 65, and to
exercise for himself the powers and authorities given by the
Persons said Act to his council. And it is also provided that no
bv Teeds P erson claiming under any deed or instrument by which
made under any sale, enfranchisement, exchange, or grant shall be made
not 8 bound or P ur P ort to be made under the authority of this Act shall
to prove be bound or concerned to inquire whether such sale, en-
franchisement, exchange, or grant is in fact authorized by
this Act or not, or whether it is or is not within the provi-
sions and the true intent and meaning of this Act, but
every deed or instrument by which any sale, enfranchise-
ment, exchange, or grant shall purport to be made under
the authority of this Act shall be good, valid, and effectual,
as against His said Royal Highness, his heirs and successors,
for the purposes for which the same shall have been exe-
cuted (z).
Certified Provision is made by the said Acts, 7 & 8 Vic. c. 65,
received in respecting enrolments, and examined and certified copies
evidence, being received as evidence of the original instruments, and
by section 6 of 11 & 12 Vic. c. 83, those provisions are ex-
tended to all deeds, certificates, receipt, or other instrument
relating to all the lands and possessions of the duchy.
Stamp B V t ] ie 7 & s Vic. c. 65, s. 43, licenses, grants, or leases
duties. IP i -i
to search for, or work, or get mines, minerals, stones, or
substrata belonging to the duchy, for a period not exceeding
one year from the date of such license, grant, or lease, are
exempt from the payment of stamp duty.
2G & 27 "\y e must close this part of the work by referring to the
recent Act of Parliament, 26 & 27 Vic. c. 49, under and
(z) Sec. 3 of 25 & 26 Vic. c. 49.
SECT, ii.] 26 & 27 Vic. c. 49. 135
by virtue of which the duchy possessions will be mainly Regulation
regulated for the future. Thereby the said Act of 5 Vic. j *|2L
c. 2. and the 4th section of the Act 11 & 12 Vic. c. 83,
Repealing
are repealed (a) ; and a seal, to be called " the seal of the 5 & 6 Vic.
duchy of Cornwall," which shall be held from time to time c< 2 ' an ?
J sec. 4 of
by the personage for the time being entitled to the posses- 11 & 12
sions of the duchy, or by some person lawfully appointed 1C * e ' 83 '
to be the keeper thereof, is to be kept (6). The Duke of ^^j 1168
Cornwall is empowered (c), at any time within a period of O f the
thirty-one years from the passing of the Act, to dispose of, duch - v -
either by way of absolute sale, or for a limited period, or by Power of
way of enfranchisement of any copyhold or customary gnfran-
tenements, any part of the possessions of the duchy of chisemcnt.
Cornwall, and any sale, disposal, or enfranchisement may
be made subject to any reservations, exceptions, and re-
strictions, and in consideration of either a gross sum of
money or an annual sum, or partly of a gross sum of
money and partly of an annual sum, and where such con-
sideration shall consist either wholly or in part of an annual
sum of money, the same is, in the case of an absolute
alienation in fee, to be perpetual, and in case of an aliena-
tion for a limited period only, to be payable during the
continuance of the estate or interest to be parted with, such
annual sum to be issuing and payable out of and charged
and chargeable upon the possessions which shall be the sub-
ject of such sale, disposal, or enfranchisement ; and in de-
termining the amount of such consideration, the circum-
stances attending any disputed right or claim, and the
outlay, if any, which may have been previously made in
reclaiming, building upon, enclosing, or otherwise improving
the premises intended to be sold, disposed of, or enfran-
chised, may be taken into account, and an abatement or
allowance made in respect thereof, as to the Duke of Corn-
wall shall seem fair and reasonable, and the aforesaid power
of enfranchisement shall include the enfranchisement of
copyhold tenements held for a life or lives, and authorize
the conveyance of the fee simple of the freehold thereof.
The mode of carrying the sales into effect, the form of
(a) Sec. I. (6) Sec. 2. (<) Sec. 3.
136 DUCHY OF CORNWALL. [CHAP. v.
assurance, and the remedy for recovering money payable
under the sale, is pointed out by the statute (d).
Power to The Duke of Cornwall is empowered at any time to
pun-base purchase any manors, lordships, advowsons, messuages,
lands. * ' IT .
lands; mines, minerals, tenements, or hereditaments in
England in fee simple, or any copyhold lands or tenements
of inheritance, the freehold of which shall be parcel of the
possessions of the duchy of Cornwall, or any rents, pen-
sions, annuities, rights of common, or mining, or other
charges or rights ; and all such manors, lordships, advow-
sons, messuages, lands, mines, minerals, tenements, and
hereditaments, rents, pensions, annuities, rights of common
and mining, and other charges and rights so to be pur-
chased, are to be conveyed, released, or surrendered to the
Duke of Cornwall, and the conveyance or other assurance
thereof may be either according to the form for that pur-
pose set forth in the schedule to the Act, or in any other
form which shall be more convenient ; and all manors,
lordships, advowsons, messuages, lands, mines, minerals,
tenements, and hereditaments which shall be so purchased,
and shall not be extinguished by the conveyance, release,
or surrender thereof, are, on the completion of the respec-
tive purchases thereof, to all intents and purposes, to form
part and parcel of the possessions of the duchy of Corn-
wall, and be subject to the same limitations, provisions,
powers, and authorities in eveiy respect, including the
powers and provisions in this Act contained, as the other
possessions of the said duchy (e).
There is a provision for the settlement of disputed ques-
tions which may arise touching or concerning the boundary
or extent of any of the possessions of the duchy, or the
title to any property, or any right of common, right of way,
water right, or other right whatsoever, being or reputed, or
claimed to be, parcel of or appurtenant to the possessions of
the duchy (/); and the Duke of Cornwall, on the repur-
chase or redemption of any such annual sum, or any part
thereof, may, by deed under the seal of the duchy of Corn-
wall, release the whole ; or, in the case of a partial repiir-
() Sec. 35.
140
DUCHY OF CORNWALL.
[CHAP. v.
tion of
terms.
Kxi.-tiim
powers.
Minerals
Enciosure
Acts.
The words "Possessions of the duchy of Cornwall,"
and the word " possessions" applied to the duchy of Corn-
wall, are to include regalities, hundreds, castles, honours,
lordships, manors, advowsons, forests, chases, woods, parks,
messuages, lands, buildings, rights of common, mines,
minerals, rights of entry, or other rights in respect of
mines or minerals, rentcharges in lieu of tithes, fixtures,
sendees, rents, pensions, annuities, annual sums reserved on
any sale, disposal, or enfranchisement made under the powers
of this Act, rights, privileges, easements, possessions, tene-
ments, and hereditaments whatsoever, whether in possession
or reversion, parcel or reputed or claimed to be parcel of
the duchy of Cornwall, or annexed to the same.
The word " minerals" are to include all minerals, whe-
ther metallic or not, stone, and substrata of eveiy descrip-
tion (-).
The powers conferred by the Act upon the duke are to
be exercised by the sovereign as guardian of any future
duke who may be under age, and in any such case the
sovereign may appoint commissioners to cany out the said
powers for and in the name of the sovereign (?).
Nothing in this Act contained is to take away, alter, or
prejudice, further or otherwise than as the same are thereby
expressly rescinded or altered, any powers or provisions
contained in the said recited Act of 7 & 8 Vic. c. 65, the
7 & 8 Vic. c. 105, or "The Acts for the Enclosure, Ex-
change, and Improvement of Land," or any other Act of
Parliament theretofore passed and then in force touching
or concerning or which may in any way affect the posses-
sions of the duchy or the revenues or management thereof,
and not thereby expressly repealed (s).
It is further provided that the powers vested in the Enclo-
sure Commissioners for England and Wales by " The Acts
for the Enclosure, Exchange, and Improvement of Land/'
for effecting exchanges of land, shall, as to any exchange
affecting the possessions of the duchy, be deemed and con-
strued to authorize a dealing for the purpose of such ex-
(g) Sec. 37. ( r ) Sees. 38, 39. (*) Sec. 40.
SECT, ii.] FORMS OF CONVEYANCES. 141
change with mines and minerals, and rights in respect of
mines and minerals, either with or without any dealing
with the ownership of the surface (tf).
This Act may for any purpose be cited as " The Duchy Short title,
of Cornwall Management Act, 1863" (it).
To the Act is annexed a schedule of forms of convey- Forms of
ance, as follows : conve - v -
... ance.
1. Form of conveyance on sale in consideration of a
gross sum of money, or on a free grant, and endorsements
thereon.
2. Form of grant for a limited period in consideration
of a gross sum of money, and endorsements thereon.
3. Form of conveyance on sale in consideration of an
annual sum.
4. Form of grant for a limited period in consideration of
an annual sum.
5. Form of enfranchisement in consideration of a gross
sum, and endorsements thereon.
6. Form of enfranchisement in consideration of an an-
nual sum.
7. Form of conveyance of any land or property on
a purchase of the duke, with receipt to be endorsed
thereon.
8. Form of grant of an annuity on the surrender of an
outstanding estate to be charged upon the premises sur-
rendered.
All Acts which affect the duchy possessions or revenues Acts of
are to be considered as public Acts, and documentary and a " e c p u))lic
other evidence, not usually admissible, have been admitted ; Acts -
for instance: A counterpart enrolment of a lease by the
duke, without evidence of the loss of the original ; An extent
of crown lands found in the proper office, purporting to
have been taken by a steward of the king's lands, following
in its construction the directions of the statute 4 Ed. I.,
although not signed, on the presumption that it was taken
under competent authority ; Answers of tenants to inter-
rogatories put to them at an assession court in the reign
(<) Sec. 41. () Sec. 42.
112 DUCHY OF CORNWALL. [CHAP. v.
of Elizabeth, without producing the interrogatories, which
had been searched for and could not be found (v).
To what extent similar evidence would be admissible
in favour of a private person, will be seen by reference
to the authorities on that subject (w).
0>) Howe v. Brenton, 8 B. and C. S. C. 13 L. J. Ch. 33 ; 19 L. J. Ex. 97 ;
737. Daniel v. Wilkin, 7 Ex. 429 ; Ham-
(w) Humble v. Hunt, 1 Holt, G02 ; mond v. Broadstreet, 10 Ex. 390 ;
Outram v. Morewood, 3 East, 346; Pipe v. Fulcher, 28 L. J. Q. B. 12.
Duke of Beaufort v. Smith, 4 Ex. 450 ;
CHAP, vi.] INTERPRETATION OF THE TERMS. 143
CHAPTEE VI.
INTERPRETATION OF THE TERMS MINES, MINERALS,
AND QUARRIES.
In Deeds, the Intention of the Parties and the Grammatical Sense usually prevail*
Parol Evidence and the Customs of a District are admissible to explain the
Terms. Mines, Lime-works, Salt-works, Clay-pits, Minerals (Stone a mineral),
Quarries, defined. The Distinction between a Mine and Quarry. Scientific
meaning of a Mineral Metalliferous or Non-metalliferom Local signification
Wales, Cornwall, Derbyshire.
MINES, minerals, and quarries are terms which have Definition
given rise to much litigation, therefore it is proposed to minerals'
consider the different meanings which may be attached to and
those terms under different circumstances and in different qv
localities. In the Case of Mines (a), it was said, in argu-
ment, that there were two kinds of mines, viz. : mines
royal, consisting of, or containing, gold or silver ; and base
mines, which consisted only of base metals or base sub-
stances, as copper, tin, lead, iron, or coals. In the Year
Book (b) mines of coal, iron, and stone are mentioned ;
and in Viner's Abridgment, under title "Mine," a dis-
tinction is drawn between mines and pits ; and it is there
stated that a mine is not properly a mine till it is worked,
but only a vein (c). Mines of metal, coal, " or the like"
are mentioned by Coke (d) ; and alum mines are referred
to in the Statute James I. c. iii. s. 11.
As the interpretation of these words generally arise out When used
of exceptions and reservations made in deeds, it should be m d(
observed that, when any reasonable degree of doubt exists
(a) Plowd. 333 ; ante, p. 123. (c) Clavering v. Clavering, cas. Ch.
(ft) 17 Ed. III. 7 b. temp. King.
(rf) Co. Litt. 53 b. ; Coke, 54 b.
INTERPRETATION OF THE TERMS.
[CHAP. vi.
Intention
in reference to them, the words of the exception or reserva-
tion, being the words of a grantor or lessor, will be con-
strued favourably for the grantee or lessee, and against the
grantor or lessor, as the case may be (e).
The intention of the parties, rather than the precise
of parties. wor( j gj j s a ] so a governing principle in the construction of
deeds " verba intention! debent inservire," and " qui hseret
in litera, haeret in cortice." This principle was recognised
by Tindal, C.J., who said: "Whilst the intention of the
parties ought to be our only guide to the interpretation of
their deed, it must be their intention to be collected from
the words of the instrument sealed and delivered by them.
No surmise or conjecture of any object which any of the
parties may be supposed to have had in view, can be
allowed to have any weight in the construction of the
deed, unless such object can be collected from the plain
language of the deed itself" (/). And in the case of
Abbott v. Middleton (#), cited in Slingsby v. Grainger (Ji),
Lord Wensleydale confirmed the well received doctrine
that the grammatical and ordinary sense was to prevail in
the absence of exceptional circumstances.
In the case of Smith v. Jeffryes (i) } Alderson, B., said :
"Where you show that words apply equally to two dif-
ferent things or subject-matters, evidence may be adduced
to explain which of them was the thing or subject-matter
intended. Evidence of custom or usage will also be re-
ceived to annex incidents to written contracts on matters
with respect to which they are silent (j) ', but if the terms
of the instrument are inconsistent with the custom, the
contract must prevail" (&).
The custom of a district will also frequently be admitted
in explanation of these and similar terms. Rowe v.
Parol
evidence.
Custom
of a
district.
(e) Earl of Cardigan v. Armitage,
2 B. and C. 197 ; Bullen v. Denning,
5 B. and C. 842.
(/) Earl Scarborough v. Savile, 3
Ad. and Ell. 9G2. See also Harris v.
Ryding, 5 M. & W. 66; Stratton v. i. p. 462, 4th edit.
(A) 7 House of Lords' Ca. p. 284.
ft) 15 M. & W. 562.
0') Myers v. Sari, 30 L. J. Q. H.
14, quoting Smith's notes to Hutton
v. Warren. See Leading Cases, vol.
Pettit, 16 C. B. 420.
($0 7 House of Lords' Ca. 88.
56.
ClarkeV Roystonc, 13 M. & W.
CHAP, vi.] MINES, MINERALS, AND QUARRIES. 145
Brenton (7) may be used in support of this proposition.
In that case it was decided that where in each of several
manors belonging to the same lord, and part of the same
district there was a class of tenants answering the same
description, and to whom tenements were granted by
similar words, evidence of the customary rights which had
been enjoyed by the tenants of one manor might be re-
ceived to show what were the rights of the tenants in the
other manor. And in the case of Clayton v. Gregson (m),
it was held that evidence of the existence of a custom
might be adduced in explanation of the term " level" used
in a lease of coal mines ; but the existence of the custom,
although proved, was not to raise a conclusion of law that
the covenanting parties used the term according to such
custom, but only a presumption from which a jury might
draw such a conclusion.
In the case of Rex v. Alberbury (w), it was argued that Mines,
every excavation of the earth would not constitute a mine,
otherwise, it was said, a gravel, or marl, or sand pit, would
be a mine ; but, to constitute a mine, it must be such as
required skill and science in working, and which was
effected by means of mechanical operations that lime-
rock was for the most part near the surface, and was
simply worked by common labourers in the ordinary course
of their employment, and therefore no mine. And Lord
Chief Justice Kenyon seems to have adopted the argu-
ment in his judgment, wherein he is reported to have
said that there was no pretence whatever for calling the
lime-works in question, mines. The argument and judg- Lime-
ment were recognised in the subsequent case of Rex v. works -
Dunsford (o).
In the case of Rex ?;. The Inhabitants of Sedgley (j;),
where limestone was obtained and raised by sinking shafts
perpendicularly down to the stratum which lay forty or
fifty yards below the surface of the ground, the stratum
worked by roads and gateheads, and the stone raised to the
m 8 B. & C. 758, post, p. 179. () 1 East, 534.
(m) 5 Ad. & Ellis, 302 ; see also (o) 2 Ad. & Ell. 568.
Macdonald . Longbottom, 28 L.J. (;>) 2 Barn. & Ad. G5.
Q.B. 256 ; Myers v. Snrl, 30 L.J. Q.B.9.
L
146 INTERPRETATION OF THE TERMS. [CHAP. vi.
surface by machinery or carried underground to a tunnel,
the court held that the property was a limestone mine ;
and Lord Tenterden stated, that the existence of metal is
Salt-works, not necessary to constitute a mine, and salt-works and
coal mines are referred to as not containing any metal, yet
as being mines.
Clay-pits. In the case of Rex v. Brcttell and another (q~), clay-pits
were held to be mines. In that case it appears excava-
tions were made from whence glass-house pot-clay and
fire-brick clay were extracted ; a perpendicular shaft was
sunk from the surface of the land for the purpose of
raising the clay out of the strata, which was done by a
steam-engine and other mining apparatus ; the excavations
were like those which were made for working coal and
metallic mines ; and the mode of raising the clay was the
same as that used in a coal mine. Lord Tenterden, in
delivering judgment, said, he saw no reason to depart from
the opinion he had pronounced in Rex v. Sedgley (r) ;
the only difference between that and the present case con-
sisted, he said, in the character of the commodity obtained,
the mode of obtaining it was the same. " Now that case
established that, in order to determine whether an exca-
vation in the earth constituted a mine or not, we are to
look to the mode in which the article is obtained, and not
to its chemical or geographical character." Here, as in
Rex v. Sedgley, the substance is obtained by what, in the
ordinary, and indeed in every, sense of the word, is mining ;
that being so, these clay-pits are mines.
Mineral. An explanation of the word mineral was given in the
case of the Earl of Rosse v. Wainman (V), where it appears
that by an Enclosure Act 53 Geo. III. c. 18, certain waste
lands, the soil of which belonged to the lord of the manor,
were enclosed and allotted to commoners. The Act, which
recited the lord's title, reserved to the lord all mines and
minerals of what nature or kind soever lying and being
within or under the said waste lands, in as full, ample, and
(q) 3 Barn. & Ad. 424 ; s.c. 1 L.J. (s) 14 M. & W. 859 ; s.c. 15 L.J.
N.S. M.C. 46. Exch. 67.
(r) See ante, p. 145.
CHAP, vi.] MINES, MINERALS, AND QUARRIES. 147
beneficial a manner to all intents and purposes as he could
or might have held or enjoyed the same in case the said
Act had not been made ; and it was held that the reserva-
tion clause must be construed with reference to the title of
the lord to the whole of the soil ; and, inasmuch as the
object of the Act was to give to the commoners the surface
for cultivation, reserving to the lord what it did not take
away for that purpose, the word mineral must be under-
stood, not in its general sense, signifying substances con-
taining metals, but in its proper sense, as including all
fossil bodies or matters dug out of mines, that is, quarries
or places where anything is dug ; therefore, that the clause
reserved to the lord the right to the stratum of stone in stone, a
the enclosed lands. The above-mentioned judgment was mmeral -
affirmed upon a special case stated in the cause (i).
In the case of Micklethwait v. Winter (M), it was de-
cided that " coals or other minerals" included stone ; in
that case it appears that a common had been enclosed
under the Act 33 Geo. II., and that there was a power
contained in that Act for the lord of the manor to enter
upon any of the enclosed lands for the purpose of digging
" any coals or other minerals," but there was no clause in
express terms reserving the mines and minerals; never-
theless, the judges held that the Act by necessary impli-
cation reserved to the lord his right to the mines and
minerals under the land so enclosed, and that " stones
taken from quarries and separated from other stones were
minerals in the ordinary sense of the word."
But the terms, mines, minerals, and quarries, have re-
ceived a very marked explanation in the still more recent
case of Darvill v. Roper (v), wherein Kindersley, V.C., is
reported to have said, " With regard to the term t mines
and minerals,' there can be no doubt that these words may
be used in several different senses. As to the term { mines,' Mines,
if there were no other word used, I do not think there
could be any fair doubt of its meaning. The question is,
(0 2 Exch. Rep. 800. (v) 24 L.J. Ch. 779.
(u) 6 Exch. Rep. 644 ; s.c. 20 LJ.
Exch. 313.
L2
148
INTEWKETATION OF THE TEEMS.
[CHAP. vr.
whether a mine and a quarry mean the same thing. Ac-
cording to the ordinary meaning of the word 'mine,' I
apprehend it does not include a quarry. The definition
does not depend on the nature of the fossil obtained, but
on the mode in which it may be worked (w). Some
Quarries, minerals may be worked by means of mining, others by
means of quarrying ; and, in this case, the limestone was
worked by quarrying. They were not, in fact, limestone
mines, but limestone quarries. That which is worked by
mines is by a process of working underground without
disturbing the surface ; and when limestone is so worked,
then it is a limestone mine. It is clear to me that the
most accurate distinction between mines and quarries is,
that where you are working sub dio after having removed
the surface so as not to leave any roof, that is what is
called quarrying. Mining is when you begin on the sur-
face and, by sinking shafts, you work underground in a
horizontal direction, making a tunnel as you proceed, and
leaving a roof overhead.
" As to the word * mines,' therefore, I do not think there
would be much difficulty. But it is more material here to
Minerals, consider the word ' mineral,' and ascertain in what sense
that word may -be used. Now, one sense is that in which
it is used by scientific mineralogists, professors of science ;
and there is the testimony of several gentlemen of emi-
nence, who state that the scientific meaning of the word is
1 any crystalline or earthy substance, whether metalliferous
or otherwise, which exists in, or forms part of, the earth,
and which may be worked by means of a mine or quarry.'
The objection in the present case to giving that meaning
to the word is, that every portion of the soil, not only
stone, metal, granite, and ironstone, but all the gravel and
every pebble, even to the very substance of the loam or
mould which forms the soil, though of vegetable formation,
would be included. Now, it is impossible to attribute that
meaning to the parties, for, according to such an interpre-
tation of the term, they could have intended to partition no
particle of the soil, but merely the vestimenta terrce ; and,
therefore, without controverting the correctness of the
(to) Rex v. Dunsford, ante, p. 145.
Scientific
meaning.
CHAP, vi.] MINES, MINERALS, AND QUARRIES. 149
definition of those scientific gentlemen, I am satisfied that
it is not the sense in Avhich the term is used here. The
Avord 'mineral' is, no doubt, used very commonly in the
sense of metalliferous, and that is the meaning Avhich, Metallic
perhaps, it was intended to have in this case ; but the substance -
plaintiff contends that that is impossible, because it follows
the Avords ' mines of lead or coal ;' and though lead is
metalliferous, coal is not, and therefore you cannot confine
the meaning to metalliferous substances. A third meaning
to the Avord is, all crystalline or earthy substances dug out Non.
of the earth by means of a mine, and this definition ex- metalllc
1-11 PI i > substance.
actly corresponds with the etymology 01 the word ' mineral.
According to Dr. Johnson's and other dictionaries, indeed,
it is A'ery clear that the Avord ' mineral' must have been
derived from the Avord ' mine.' A fourth definition is that
Avhich may be derived from local usage ; and upon this Local sig-
point a number of persons Avho are Avorking engineers have nific ation.
given evidence. Those gentlemen say, that the general
meaning attached to the word 'mineral' throughout the
O O
counties of Flint and Denbigh is ' metalliferous ores,' and Wales.
O *
that in leases, Avhere minerals are reserved, it is never
contemplated that limestone should be Avorked, and that
a contrary practice Avould have the effect -of creating a
revolution in the customs of the country. On the other
hand, there are several witnesses Avho hold a totally dif-
ferent opinion, and state that there is no such meaning to
the word. NOAV there are quite as many Avitnesses on one
side as on the other, and they appear to have had equal
opportunities of knoAving the facts to Avhich they depose ;
consequently, in such a diversity of evidence, it is impos-
sible for me to guide myself to any rule settled by the
practice of the country. There is, however, one settled
rule for interpreting contracts, Avhich is, that when there is
any uncertainty as to the meaning of a word, you are to
give it its primary or ordinary meaning." His Honour
then commented upon several of the cases cited, alluding
particularly to Rosse v. Wainman, Micklethwait v. Winter,
Rex v. Brettell, and Rex v. Alberbury, for the purpose of
shoAving that a mine and a quarry had never been con-
sidered one and the same thing, and said, " that the best
150
INTERPRETATION OF TERMS.
[CHAP. vi.
definition of a mineral was that which was worked by
means of a mine."
Another distinction between mines and quarries was
stated by Chief Justice Monahan in Brown v. Chadwick,
as follows : " A mine is a place where the substratum is
excavated, but the surface is unbroken ; whereas in a
quarry the surface is open, and the material, as in the pre-
sent case, exposed" (#). And in the case of the Countess
of Listowel v. Gibbings (y), it was held that " the word
' mine' usually imports a cavern or subterraneous place con-
taining metals or minerals, and not a quarry; and that
'minerals' ordinarily mean metallic fossil bodies, and not
limestone." The case of Darvill v. Roper was cited, and
followed.
Cornwall. The exception and reservation of minerals made on the
sale of some of the conventionary tenements of the duchy
of Cornwall has received a statutoiy explanation in the
preamble of the statute 7 & 8 Vic. c. 105, and it is there
declared to mean " metallic minerals" only ; the same ex-
planation is given of the term as and when used in the
18 Vic. c. 32, for extending the jurisdiction of the Stan-
nary Court.
The terms "mine," "mineral," "veins," "ores," and
" mineral property," when used in the Acts to define and
amend the mineral customs of Derbyshire, have received
another and different construction whenever those terms
are applied to the districts where those customs prevail (z).
The subject-matter of this work is primarily mining
proper, and, consequently, the foregoing definitions have
been restricted to that branch of the subject; but, inas-
much as undermining is a corollary and necessary conse-
quence of the main subject, numerous decisions will be
found in reference to both. Observe, then, the distinction
between mining proper, and caves or trenches dug under
ground whereby the walls of a house or other super-
structure become injured, which is undermining.
Derbj r -
shire.
Under-
mining.
(*) 7 Ir. C.L. 108.
(y) 9 Ir. C.L. 223.
() 14 & 15 Vic. c. 94, s. 2 ; 15 &
16 Vic. c. 163, s. 2 (private Act),
and post, " Derbyshire."
CHAP, vii.] OWNERSHIPS IN MINES. 151
CHAPTER VII.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
SECTION I.
OWNERSHIPS IN GENERAL.
Coke's doctrine : the Owner of the Surface, prima facie, entitled to Minerals
Right to Minerals in Alluvial Lands Minerals, when real, when personal
estate rifjht to search for Minerals distinct Ownerships may lie, established
consequences of distinct Ownerships Statute of Limitations.
LAND, according to Sir Edward Coke, implies, in its legal Coke's
signification, an indefinite extent upwards, as well as down- doctrine -
Avards. " Cujus est solum, ejus est usque ad coelum is
(he says) the maxim of the law upwards ; and downwards,
whatever is in a direct line between the surface of any
land and the centre of the earth belongs to the owner of
the soil ; so that the word land includes not only the face
of the earth, but everything under it or over it." He,
therefore, who is entitled to the soil, is, according to the
above doctrine, also entitled to the minerals beneath the
soil (a). In freehold lands, the minerals prima facie be- owner of
long to the freeholder ; in copyhold, commons, and waste Slll .' l;l l ''-.
lands, to the lord of the manor (b) ; but the title of the entitled to
freeholder or lord of the manor is capable of being re- minerals '
butted or qualified by evidence, showing distinct owner-
ships, or rights, in different persons ; and, in this country,
it not only frequently happens that the ownership in mine-
rals is vested in one person, and the soil in another, but
(a) Co. Litt. 4 a, Shep. Touch. 90; 556 ; Curtis v. Daniel, 10 East, 273
Raine v. Alderson, 1 Arnold, 329; Barnes v. Mnwson, 1 M. & S. 84
Case of Mines, Plowden, p. 310, Stat. Lewis v. Branthwaito, 2 B. and Ad.
1 W. &M. c. 30, 5 W. & M. c. 6, ante, 437 ; Rogers v. Brenton, 10 Q.B. 49,
p. 88; 2 Black. Com. 18, Stephen's s.c. 17 L.J. Q.B. 34.
edit. 1858, vol. i. p. 170, vol. ii. p. (6) Post, pp. 171, 188.
152 OWNERSHIPS IN MINES, [CHAP. vn.
Distinct several distinct ownerships and rights to different minerals
shipTexist un ^ or tne same surface, and even of qualified interests to
minerals, both when distinct and blended with the owner-
ship of the soil, do exist. For instance, the sovereign is
entitled to all gold and silver, whether found in the
demesnes of the crown, in the highways, or in the lands of
private persons, situate in England or Ireland (c). The
crown is also proprietor of the soil and of the minerals be-
neath the soil in the Forest of Dean, subject to the right
of the " free miners" of that district to a grant from the
crown to work the minerals upon payment of a royalty (d) ;
and in those parts of Derbyshire where the mining customs
prevail, Her Majesty, in right of her duchy of Lancaster,
is the owner of the lead mines, whilst any of Her Majesty's
"liege subjects" are entitled freely to enter upon and to
work those mines without even the permission of the owner
of the soil or of Her Majesty (e). In Scotland the crown
has no right, not even to the precious metals, but only to a
royalty payable out of the produce. The eldest son of the
sovereign has an indisputable title to minerals under certain
lands in Cornwall belonging to private persons (/). In the
north of England one person is not unfrequently entitled
to the iron, whilst another is entitled to the iron-stone ; and
two or more seams or strata of coal under the same lands
are sometimes vested in different proprietors. In copyhold,
commons, and waste lands, although the lord is owner of
the minerals, he cannot, in the absence of custom to the
contrary, disturb the surface of the copyhold lands without
the consent of the copyhold tenants, or the commons with-
out leaving sufficient herbage for the commoners (g).
These instances of distinct ownerships and rights are
analogous to the civil law (A), and are much less injurious
to the proprietors of the soil than the restrictions and quali-
fications of title imposed upon the lands of private persons
in the other states of Europe, and are here noticed to
prevent too much reliance being placed upon any abstract
(c) Ante, "Royal Mines," p. 72. (/) Ante, p. 107.
(4) Post, p. 102. (g) Post, p. 171, 188.
() Post, " Derbyshire customs." (A) Ante, p. 17.
SECT, i.] MINERALS, AND QUARRIES. 153
principle of law which may favour the owner of the
surface.
Annexed to the prima facie title of the owner of the Alluvial
surface is the right to minerals found on or underneath lands -
lands formed by alluvial ; that is to say, in lands not sud-
denly derelict, but formed by the gradual and impercep-
tible accretion of the soil upon the sea or banks of rivers.
In such cases the minerals, together with the land, belong
to the owner of the soil next adjoining (t).
Minerals unsevered from the land are part and parcel of Minerals,
the soil, and, as such, real estate ; when severed they be- personal
come personal chattels, and, as such, constitute personal estate.
estate (j).
When the owner of an estate of inheritance is also Right to
entitled to the minerals, he has an absolute right to explore minerals"*
the earth and to search and dig for minerals, in the manner
most beneficial to his own interests, regard only being had
to the rights of adjoining proprietors sic utere tuo, ut
alienum non Isedas (&) ; but this right of search, which
prima facie belongs to all persons seized of the inheritance,
is in abeyance when the possession of the estate has been
parted with. In such a case, the owner of the estate is
precluded from entering into the lands and exploring
mines during the period he is out of possession (I) ; on the
other hand, the tenant in possession, not having any pro-
perty or other right to the minerals, would commit waste
by interfering with them, or otherwise disturbing the sur-
face, consequently the minerals would thus be accessible to
nobody without the mutual consent of both the tenant-in-
fee and the tenant or lessee in possession (m).
But when the title to minerals is distinct from that to When pro -
the soil, and vested in different persons, the owner of the pe . rty '"
i . . minerals
minerals would, prima facie, have no right to interfere distinct.
(') Gifford v. Lord Yarborough, 5 (&) Post, Title " Lateral support."
Bing. 163 ; Lowe v. Govett, 3 13. & (/) Lewis v. Branthwaite, 2 B. &
Ad. 863; Scratton v. Brown, 4 B. Ad. 437 ; Rowe v. Brenton, 8 B. & C.
& C. 485; re Hull and Selby Rail- 766; Keyse v. Powell, 2 Ell. & B.
way, 5 M. & W. 331 ; Ford v. Lacey, 132.
30 L.J. Ex. 351; 7 II. & N. 151. (m) Co. Litt. 54 b ; Manwood's
0') Rowe v. Brenton, 8 B. & C. case, Moore, 101 ; Astry v. Ballard,
737. 2 Mod. 193.
154 OWNERSHIPS IN MINES, [CHAP. vn.
with the surface ; but the law invariably accompanies a
right to property with the necessary means for its enjoy-
ment: cuicunque aliquid conceditur, conceditur et id sine
quo res ipsa non esse potuit (n). And upon this principle
the right to mines implies a right to work them, and to the
use of so much of the surface of the land as may be neces-
sary for the purposes of effectually carrying on mining
operations : such as, for instance, the right to use all roads
already formed upon the estate to make any others which
might be required to erect buildings, steam-engines, and
other machinery for draining the mine, or for working or
drawing up the minerals (o). But if the right to work a
mine is conferred by deed, and special provisions are in-
serted, as is usually the case, authorizing the erection of
necessary buildings and machinery, and the making of
proper and convenient roads, and the doing of other things
necessary for the effectual carrying on of the mine, these and
similar provisions, whilst they may limit the common law
rights of the grantees, will be construed favourably for
them and against the grantors. The question in such
cases will be not only whether the doing a certain thing
was absolutely necessary, but rather whether it is more
convenient and capable of being carried out without injury
How far to the soil (p). And when the right to minerals is distinct
limitations f rom the right to the surface, such an interest, in conse-
appHes. quence of an omission to work the minerals, cannot be
barred by the statute of limitations, 3 & 4 Will. IV. c. 27.
This proposition was maintained in the case of Seaman v.
Vawdrey under the old law () Dandr. Kingscote, 6 M. & W
(o) 1 Pres. Shep. 89 ; Earl of 174.
Cardigan v. Armitage, 2 B. & C. 197 ; (?) 16 Ves. 390.
3 D. & B. 414; Harris v. Ryding,
5 M. & W. 60; Hinchliffe v. Kinnoul,
5 Bing. N. C. 24.
SECT, i.] MINERALS, AND QUARRIES. 155
has not shown a right to enter within twenty years before Statute of
his suit commenced. If this be the meaning of the statute, ^^'
we must give assent to it, but it is an operation which, in
the case before us, violates the meaning of the parties and
annuls this contract ; for their intention plainly was, that
the right to the quarries should remain in the grantor, as if
he had never executed the grant ; and that in respect of
their estate, he and his heirs should at all times possess and
exercise a right to enter, search for, and carry them away.
The excepting of the quarries severed them both as to
estate and possession from the estate in possession in the
lands, in both respects they became thereon separate and
distinct ; the grantor's estate and possession of the quarries
remained unaffected; he retained them as he had them;
they were never out of him" (f). And the above decision has
since been affirmed in the case of Tottenham v. Byrne (s).
Where unopened mines under a copyhold were granted
by the copyholder for a term of years to A and B, who did
not work them within twenty years, A, at the time of the
grant, being also tenant from year to year of the land, it was
held that he was also in possession of the mines, although he
could not work them as such tenant, that his possession inured
for the benefit of B as well as of himself, and that any
person claiming the mines under the grant would have a
right to enter and work them within twenty years from the
relinquishment of the possession of the land by A (t).
The question was again agitated in Smith v. Lloyd, and
Parke, B., in his judgment, said : " The question intended
to be raised by the pleadings in this case is, whether, where
more than a century ago, the owner of the fee-simple of a
close, with a stratum of coal and other minerals under it,
conveyed the surface to one under whom the plaintiff
claims, reserving the minerals and a right of entry to get
them to another under whom the defendants claim, that
right of entry is barred by simple non-user for more than
(f) M'Donnell v. M'Kinty, 10 Irish (*) 12 Ir. Com. Law Rep. 376.
L.R. p. 525; see also 1 Rep. of Com- (<) Keyse v. Powell, 2 Ell. & B
missioners on Registration, 1850, pp. 132, 645.
15, 17; Cardigan . Armitage, 2 B.
& C. 197.
156 OWNERSHIPS IN MINERALS. [CHAP. vir.
Statute of forty years, no other person having worked or been in pos-
session of the mines. We have not the slightest doubt
that the title of the grantees of the mines is not barred in
this case under the 3 Will. IV. c. 27, ss. 2 & 3, for we
are clearly of opinion that that statute applies not to cases
of want of actual possession by the plaintiff, but to cases
where he has been out of, and another in, possession for the
prescribed time. There must be both absence of possession
by the person who has the right, and actual possession by
another, whether adverse or not, to be protected, to bring
the case within the statute. We entirely concur in the
judgment of Blackburne, G.J.,in M'Donnell v. M'Kinty (M),
and the principle on which it is founded (v) ; and the same
principle was upheld in liimington u. Cannon (-10), in which
case an estate tail having been discontinued by a feoffment
made by the tenant in tail more than twenty years before
his death, it was held that the issue in tail might bring his
writ of formedon at any time within twenty years next
after such death."
" Discontinuance of possession (says Lord St. Leonards),
in the statute, means an abandonment of possession by one
person followed by the actual possession of another person ;
for if no one succeed to the possession vacated or aban-
doned, there could be no one in whose favour or for whose
protection the Act could operate. To constitute discon-
tinuance, there must be both dereliction by the person who
has the right and actual possession, whether adverse or not,
to be protected ; therefore, where land is conveyed with a
reservation of the minerals, the title to the minerals is not
barred, simply by the omission to work them for twenty
years. The grantee of the land enjoyed the lands, but the
possession of the land is not the possession of the mines,
which become a distinct inheritance on the severance of the
two estates" #.
() 10 Ir. Law Rep. 514, and suprh. (*) Lord St. Leonards's Real Pro-
M Smith v. Lloy<~
(w) 12 C. B. 33.
M Smith p. Lloyd, 9 Ex. 562, 571. perty, edit. 1862, p. 33.
c
SECT, ii.] OWNERSHIPS IN MINERALS. 157
SECTION II.
FREEHOLD LANDS.
TENANT IN FEE-SIMPLE. Absolute Right to Mines and to Work for
Minerals Qualification of Right when there is an Executory Devise over.
TENANT IN TAIL. Same Right as a Tenant in Fee-simple to Search for
Minerals Common Law power of Alienation Enlarged by Statutes 3 ).
. At common law also, they might grant their rights to others
for any estate commensurate with their own interests ; if
made for a longer period it was voidable only, arid might be
confirmed by their successors or the reversioner (c). And
by statute 32 Henry VHI. c. 28, tenants in tail might
make leases for certain limited periods, but that statute, so
(z) 10 Ves. 278. (c) Co. Litt. 326 b ; Dyer, 46%
(a) See 29 L.J. Ch. 600. 61 b , 95, pi. 40 ; Doe d. Southouse v.
(6) Plowden, 248, 259, 437; At- Jenkins, 5 Bing. 469; Mitchell v.
torney-General v. Duke of Marl- Dors, 6 Ves. 147 ; Hanson v. Gardi-
borough, 3 Mad. 498 ; Davis . Duke ner, 7 Ves. 305.
of Marlborough, 2 Swanst. 108, 136.
SECT, ii.] FREEHOLD LANDS. 159
far as affects their estates, has lately been repealed (d). But
now, by the 3 & 4 Will. IV. c. 74, a tenant in tail has
full power by deed, but not by will, to dispose of, for an
estate in fee-simple or any less estate (e), the lands entailed,
whether freehold or copyhold (/), and thus to bar himself
and his issue and all persons having any ulterior estate
therein ; but dispositions of the property by way of mortgage
or for any other limited purpose are only to bar the estate
tail so far as may be necessary to give effect to such partial
or limited disposition (g). Every deed of freehold lands
executed under the Act must be enrolled in Chancery,
except leases, "for any term not exceeding twenty-one
years, to commence from the date of such lease, or from any
time not exceeding twelve calendar months from the date
of such lease, where a rent shall be thereby reserved, which,
at the time of granting such lease, shall be a rack-rent, or
not less than five-sixth parts of a rack-rent" (A) ; but deeds
of copyhold lands need not be enrolled, but an entry thereof
must be made on the court rolls (i). The expression
" tenant in tail" is defined by the 1st section of the Act,
and is declared by the 18th section "not to extend to
tenants of estates tail, who by an Act passed in the 34 & 85
of Henry VIII., entitled an Act to embar feigned recovery
of lands wherein the King is in reversion, or by any other
Act, are restrained from embarring their estates tail." The
Act does not include lands in Ireland, but similar pro-
visions are inserted in the Irish Act 4 & 5 Will. IV. c. 92.
Other enabling statutes have been passed, by virtue of
which tenants in tail are enabled to grant leases, and to
make limited dispositions of their property ( j ).
Tenants for life, without impeachment of waste, were at Tenant
common law also endowed with an unlimited control over
their estates, and might search for minerals at pleasure,
(d) See sec. 35 of 19 & 20 Vic. (A) Sec. 41 of 3 & 4 Will. IV.
c. 120. c. 74.
0) Sees. 1, 15, and 40 of 3 & 4 (f) Sec. 54.
Will. IV. c. 74. m See post, and 19 & 20 Vic.
(/) Sec. 60. c. 120, sa. 2, 17, "Settled Estates,"
" Sec. 21. p. 280.
160 OWNERSHIPS IN MINERALS. [CHAP. vn.
Tenant for without being liable to an action for waste (F) ; but tenants
for life, impeachable of waste, had no such rights, and could
not explore the ground or otherwise injure or impair the
inheritance (I). But a tenant for life, impeachable of waste,
has a right to continue the working of mines and clay-pits
already commenced where the preceding tenant for life has
worked them; and it would seem that if new shafts are
necessary for the effectual carrying on of such workings,
new shafts may be sunk, but where the preceding tenant
for life had entirely abandoned the open mines, it is not
clear that a subsequent tenant for life would be entitled to
re-work them (m). And although a tenant for life, without
impeachment of waste, is at liberty to open mines, yet a
Court of Equity will interfere to restrain any wanton or
malicious disturbance of the soil, or any act which would
amount to a destruction of the inheritance (?z). A tenant
for life in remainder, unimpeachable of waste, cannot work
mines before his estate has come into possession (o), and it
is doubtful whether he can profit by any waste wrongfully
committed by others before such possession (p). Where
a tenant for life has committed waste by opening mines,
the produce of the mines belongs to the remainderman, and
the tenant for life is not even entitled to the interest of the
(&) Co. Litt. 53 b , 54 b , Herlaken- Wms. 240 ; Lord Darcy v. Askwith,
den's case, 4 Co. 443 ; Sauuders's case, Hob. 234; Hutt. 19; Clavering v.
5 Co. 22, Pyne v. Dor, 1 T. R. 55 ; Clavering, 2 P. Wms. 388 ; Sel. Ch.
Downshire v. Sandys, 6 Ves. 107; Ca. 79; Stoughton v. Leigh, 1 Taunt.
Burges v. Lamb, 16 Ves. 174 ; Morris 410; Viner v. Vaughan, 2 Beav. 4G6 ;
v. Morris, 15 Sim. 505; and author!- Ferrand v. Wilson, 15 L.J. Ch. 41;
ties in 2 Swanst. 145 ; Lewis Bowles's Spencer v. Scurr, 31 L.J. Ch. 808.
case, 11 Rep. 82 b ; Hob. 132; Coun- (n) Abraham v. Bubb, 2 Freern. 53,
tess of Plymouth v. Lady Archer, 1 278; Lewis Bowles's case, 11 Rep. 83 a ,
Bro. C.C.I 59; Biggs v. Lord Oxford, Cooke v. Winford, 1 Abr. Eq. 221;
1 De -G. M. & G. 363 ; Buckley v. Bishop of London v. Web, 1 P. Wms.
Howell, 30 L.J. Ch. 527 ; Lord Lovat 527 ; Vane v. Lord Barnard, 2 Veni.
v. Duke of Leeds, 3 D. & Sm. 75. 738, 1 Salk. 161 ; Williams v. Wil-
(0 Bassett v. Bassett, Finch, 189; liams, 12 East. 209 ; Mickletliwaite v.
Aston v. Aston, 1 Ves. Sen. 264; Carew Micklethwaite, 1 De G. & J. 524;
v. Carew, 1 Abr. Eq. 221 ; 2 Inst. 299 ; Blake v. Peters, 10 W. R. 826.
Perrot v. Perrot, 3 Atk. 95 ; Stough- (o) Lewis Bowles's case, 11 Rep.
ton v. Leigh, 1 Taunt. 411; Dickin 79 ; Davies v. Davies, 2 Ir. Eq. Rep.
. Hamer, 1 D. & S. 284. 415.
() Co. Litt. 54 b ; Saunders's case, (/>) Gent v. Harrison, John. 517;
5 Co. 22 ; Vin. Abr. vol. xv. p. 401, Rolt o. Somerville, 2 Eq. Ab. 759 ;
tit. " Mines ;" Astry v. Ballard, 2 Waldo v. Waldo, 10 L.J. Ch. 312 ;
Mod. 193 ; 2 Lev. 185 ; 3 Keb. 709, Lushington v. Boldero, 15 Beav. 1.
761, 765 ; Whitfield v. Bewit, 2 P.
SECT. ii. FREEHOLD LANDS. 161
produce, but if the remainderman adopts the acts of the Tenant for
tenant for life for other purposes, he may be debarred from life
enforcing his rights to that extent (q).
But although a tenant for life, punishable for waste, and
other persons with limited interests are placed under re-
strictions, and have no right to dig for minerals, they may
dig for gravel, marl, stone, clay, brick earth, or other similar
substances for necessary repairs, or for the purpose of
manure, without committing waste; and when in posses-
sion, it has been said that they or any one of them may dig
for toal and iron, and other materials for their own use (r).
By a recent statute any tenant for life, even although he
may have encumbered his estate or interest therein, may
now make in certain cases absolute or partial alienation of
his mineral property (s).
What would be regarded as open pits or mines in such What are
a sense as to entitle the tenant for life to work them,
was considered in the case of Viner v. Vaughan (). Lord
Langdale, in delivering judgment, said : " A tenant for life
has no right to take the substance of the estate by opening
mines or clay-pits, but he has a right to continue the work-
ing of mines and clay-pits where the author of the gift has
previously done it ; and for this reason, that the author of
the gift has made them part of the profits of the land, but
it does not follow that the tenant for life has a right to open
old abandoned pits and mines, or to commence opening any
mines or pits, which the author of the gift had merely made
as preparations for opening. This, however, is the question
in this case ; it appears there were old pits which had not
been worked for twenty years ; it is stated that the last
owner, for some purpose or other, had taken some clay out of
them, and had made some preparations for working them,
yet it is not alleged that these pits were in the course of
working at the time of the testator's death ; this therefore
(q) Gresley v. Mousley, 8 Jur. N.S. (*) 19 & 20 Vic. c. 120, ss. 32, 41,
320. and post, 280.
(r) Co. Litt. 41'', 53<>, 54>, 2 Roll. (*) 2 Beav. 4G6; Astry v. Ballartl,
Abr. 81(1; Cuddon v. Morloy, 7 Hare, 2 Lev. 185; Freem. 446.
202 ; Heydon v. Smith, 13 Rep. C7 ;
Howley v. Jebb, 8 Ir. C.L. 436.
M
162 OWNERSHIPS IN MINERALS. [CHAP. vn.
was not an open mine in the course of working at the death
of the testator." In Spencer v. Scurr, the Master of the
Ilolls said : " Clavcring v . Clavering (M) did not confine the
right to one seam. If there is a shaft by which you can
work five seams, which are all let, and one only is at first
worked, it cannot be said that when the lessee begins to
work the other seams he is opening a new mine : it is sub-
stantially and practically the old mine. I concur in this,
that if a man who has opened a mine for winning coal
finds mines of lead or ironstone, that could not be got by
means of the old shaft, that would be opening a new mine.
But here the lessees were at liberty to open other seams, and
to work any of the minerals ; and I think this is only a
repetition of the working of the old mine. I must therefore
declare that the lease granted by the trustees is a renewal
of the former lease, and that the plaintiff is entitled to a
moiety of the rents and profits of the seams of coal
worked" (v).
Tenant in ^ ie esta ^ e ^ a tenant in tail after possibility of issue
tail after extinct is of an amphibious nature, partaking partly of an
Ity ' estate tail and partly of an estate for life (t#). Like a
tenant in tail, he is dispunishable for waste, and may
therefore search for minerals and work mines, subject,
however, to the interference of a Court of Equity, as in
the case of a tenant for life dispunishable of waste (x) ;
but his interest is a personal one, and cannot be granted
entire to another his grantee would be merely a tenant
for life (?/). Moreover, a tenant in tail after possibility of
issue extinct cannot bar the entail (z), but by a recent
statute he has acquired a limited power of alienation, and
for some purpose he is to be deemed a tenant for life (a) ;
therefore, a tenant in tail of this latter description, and an
ordinary tenant for life, may now make mutual exchanges
(} 2 P. Wins. 388. 400 ; Abraham v. Bubb, 2 Freem. 53 ;
(i>) Spencer v. Scurr, 31 L.J. Ch. 2 Swanst. 172 ; Williams v. Day, 2
809. Ch. Ca. 32 ; Garth v. Cotton, 1 Yes.
(w) Co. Litt. 27 b , 28 53>>; 1 Inst. S. 524, 526; 1 W. & T. Leading
301; Ap-Rice's case, 3 Leon, 241; cases, 559, 567.
Williams v. Williams, 12 East, 209, (y) 19 & 20 Vic. c. 120, s. 1.
15 Ves. 425; Platt v. Powles, 2 M. & (s) 3 & 4 Will. IV. c. 74, s. 18.
s - G O. (a) 19 & 20 Vic. c. 120, s. 1.
(x) Cooke v. Whaley, 1 Eq. Ab.
SECT, ii.] FREEHOLD LANDS. 163
of mineral estates falling within the purview of that
statute.
An estate by the curtesy is a life estate only, with all the Tenant
incidents attached to an estate for life impeach able for b ^ the
. curtesy
waste, consequently he cannot open mines, and was in-
capacitated at common law from making any disposition of
the minerals, which conferred a right to work and explore the
ground ; if the ground was opened, the reversioner would
be entitled to prevent it by the same remedies as are adopted
in other cases of waste ; but the recent statute of 19 & 20
Vic. c. 120 (&), which has conferred powers of alienation
on certain tenants for life, w r ill generally enable a tenant
by the curtesy to make a limited disposition of his in-
terest (c). Copyholds are not subject to curtesy, except
by custom (d).
A widow is entitled to dower out of all mines, under any Tenant in
lands, of which the husband had at any time during the ower<
coverture an absolute undivided estate of inheritance, legal
or equitable, or partly legal and partly equitable, provided
no act was done in the husband's lifetime to defeat or pre-
judice her right (e). But it was adjudged, in the case of
Stoughton v. Leigh, that the widow was not entitled to
dower in mines which had not been discovered or opened
during coverture (/) ; but the authority of that case must
now be considered questionable, as minerals unsevered
from the soil are real estate, and part and parcel of the
soil itself (^r), and as such, would, if not before, since the
3 & 4 Will. IV. c. 105, be subject to dower (A). More-
over, the rights of a dowress in mines opened after her hus- Dower in
band's death have lately been discussed in the case of Dickin un P ened
J mines.
(6) See 32, 41. N.B. 149 ; Stoughton v. Leigh, 1
(c) Co. Litt. 29% 301', Mcnvil's Taunt. 410 ; Ray v. Pung, 5B. & Aid.
case, 13 Co. 23; Buck worth v. Thir- 5G1 ; Moody v. King, 2 Bing. 447 ;
kcll, 3 Bos. & 1'ul. (J52, note to Doe Rex v. Northweald, Bassett, 4 Dow.
d. Andrew v. Tlutton ; Jones v. Da- & Ry. 270, 3 & 4 Will. IV. c. 105.
vies, 31 L.J. Ex. 11G; Jones v. Rick- (#) Hewlins v. Shippam, 5 B. & C.
etts, 31 L.J. Ch. 753. 230 ; Wilkinson v. Proud, 11 M. & W.
(J) 4 Rep. 22, 30b. 33; Wood v. Leadbittcr, 13 M. & W.
(e) Fairley v. Tuck, 3 Jur. N.S. 842, and title "License" in this work.
1089 ; 27 L.J. Ch. 28. (A) Sees. 1-14.
(/) Co. Litt. 32, 32 h , 3G ; 53, Fit/.
M2
164. OWNERSHIPS IN MINERALS. [CHAP. vn.
Dower in r. Ilamcr ; and the judgment of Vice-Cliancellor Kindersley
SET* " that case is ful1 of valuable matter.
From the report, it appears that the husband died in-
testate, seized of real estates under which were seams of
coal, but that no mines had been opened at the time of his
death ; and Kindersley, V.C., in delivering judgment,
said : " What, then, are the rights of the parties to those
coal mines ? There could be no question as to their rights
if the mines were originally opened mines ; but what rights
have they in unopened mines ? The widow, the dowress,
clearly cannot open the mines herself. She is, however,
tenant for life of the one-third of the estate under which
those mines are; and, although she cannot herself open
them, she has the right of an ordinary tenant for life, and
can say that the remainderman shall not open them with-
out her consent. If that be so, as I take it to be when
there has been an assignment, I do not see how, when the
parties have gone on acting on the assumption of such an
assignment of dower, the rights of the parties can be
altered. But this case does not, in my opinion, depend
upon these considerations, for we must look to what the
parties have themselves done in this suit to affect their
rights. Now this suit was instituted for the administration
of the estate of Stephen Dickin, who died intestate. The
plaintiff, an infant, was his only daughter and heiress-at-
law; and her mother, the widow, is a defendant in the
suit. The decree, on the hearing, directed an inquiry to
be made by the Master whether Mrs. Dickin who has
since married a Mr. Hamer was entitled to dower out of
any, and which, of her late husband's real estates. To that
inquiry the Master made his report in the affirmative as to
all the estates. There was also an inquiry whether it
would be fit and proper that the whole, or any and which
part, of the estates should be let on coal-mining leases.
Before the Master had made his report as to this inquiry,
the suit came on upon further directions, when an order
was made appointing Mrs. Hamer guardian of the plaintiff
and the receiver in the suit, and directing her to receive
the rents and profits of the estates in that latter capacity.
SECT, it.] FREEHOLD LANDS. 165
Nine years after that decree, on further directions, a pro- Dower in
visional agreement was entered into by Mrs. Hamer for a
lease of the property for coal-mining purposes. That Avas
before the Master had made his report as to the propriety
of the proposed lease ; but he afterwards found in favour
of such a lease, and, accordingly, on the 8th of May, 1856,
the provisional agreement was ordered to be earned out.
That object was effected by a lease made between Mrs.
Hamer, as guardian of the infant plaintiff and receiver in
the suit, the infant plaintiff herself, and the proposed
lessee. The lease recited that the plaintiff was an infant ;
that she was the only child and heiress-at-law of the late
Mr. Dickin ; and it also recited the various proceedings in
the suit, and contained an operative part, in this form :
The infant plaintiff granted, demised, and leased the mines,
&c., and Mrs. Hamer, as guardian, granted, demised,
leased, and confirmed the said mines, &c., to the lessee.
The lease also contained covenants, reservation of rents
and royalties, and provisions for the payment of the income
of the property, and all of which were made and entered
into by, for, and between the infant plaintiff and the lessee.
The question, then, really is, what was the effect of this
transaction on the rights of the parties ? If, at the time
this arrangement was entered into, the widow had a right
to say to the infant plaintiff or her lessee, ' You shall not
work these mines under that one-third of the property in
which I have a life-interest,' but did not say anything of the
sort, what is the effect of her joining in this lease as she has ?
It was said in the argument that it was a mere concession
on her part ; but I think it cannot be so considered. This
lease cannot be looked at in that light. Whatever was to
be done was clearly to be done by, for, and on behalf of
the infant alone, and no one else. The full and entire
benefit resulting from this mining lease, as is evident from
the reservations and the covenants being made for and with
the infant plaintiff, was clearly intended. to result to the
infant. If it had not been so, and it had been intended on
the occasion of this lease to give the widow any benefit
under it, that would have been attended to and provided
lf,r, OWNERSHIPS IN MINERALS. [CHAP. vn.
Dower in for ; but no such course was adopted. Moreover, it appears
that the widow herself received the royalties reserved under
this very lease, and paid them into court to her account, as
receiver in the suit ; clearly showing that she believed
everything done with respect to these mines to have been
for the benefit of the infant alone. My opinion therefore
is, that the widow in this case is not entitled to any dower
out of these royalties. As the question arose in chambers,
there is no necessity to make any order at present as to the
costs." Independently, therefore, of the special circum-
stances of this case, if the heir opens mines in land of
which the widow is dowable, the heir thereby makes the
proceedings thereof part of the profits of the estate (i), and
the widow is entitled to one-third of the income of such
proceeds, and not to a third of the corpus (j ). If leases or
licenses to work the mines, out of which the wife was
dowable, had been made or granted by the husband during
coverture, the right to dower nevertheless remained intact ;
but if such leases or licenses were made before coverture,
the widow would only be entitled to her share of the
renders under the lease or license, Avhether pecuniary or
otherwise, according to the terms of the reservation.
Assign- Dower in mines may be assigned by parol, notwithstand-
dower f * n S ^ e statute f frauds, and after assignment and entry,
the freehold vests in the widow without livery of seisin (A 1 ).
If the widow is refused her dower, she may proceed either
by writ of summons (I) at common law or by bill in equity
for an assignment thereof (ra). The sheriff when called
upon to make the assignment need not apportion a third
part of each mine to the widow, but only a third in value
of the whole of the mines, but the assignment must be
equitable, or equity will grant relief ( n ). The widow,
instead of her dower, may accept any other provision in lieu
(i) Daly v. Beckett, 24 Beav. 123. (m) Goodenough's case, 2 Dick.
(J) Dickin v. Hamer, 1 D. & Sm. 795; Mundy v. Mundy, 2 Yes. 128 ;
284 ; 29 L.J. Ch. 779 ; Tutor's Real Harris v. Harris, 11 W. R. 62.
Property Cases, 2nd edit. pp. 55, 69. (n) Stoughton v. Leigh, 1 Taunt.
(fc) Co. Litt. 32 b , n. 1, 34 a, 25 a; 411; Hoby v. Hoby, 1 Vern. 218,
Howe v. Power, 2 B. & P. N. R. 134. s.c. 2 Ch. Ca. 160; Thompson v. Watts,
(0 23 & 24 Vic. c. 126, s. 26. 2 Johns & H. 291 ; 31 L.J. Ch. 445.
SECT. ii. J FREEHOLD LANDS. 167
thereof, and her release will be binding upon her (o). An
infant heir may assign dower, but in consequence of his
disabilities, he will be protected against any excessive assign-
ment (/>); but persons under no disability must abide by
their own act.
An estate less than a freehold is called a chattel-real, a Tenant
term which implies that he who is entitled to it has an inte- ^ r y ^^
rest partaking both of real and personal estate ; for whilst by suffer-
it concerns, or as the technical phrase expresses it, " savours ance>
of the realty," it is, nevertheless, personal property in Eng-
land and Ireland devolving upon the executor, and not
upon the heir, whilst in Scotland it is real estate devolving
upon the heir, and not the executor. Among those estates
may be enumerated estates for years, at will, and by suffer-
ance. An estate for years is assignable, but neither of the
other two estates can be the subject of an assignment, be-
cause in the case of a tenant at will, he has no certain in-
defeasible estate, and as respects a tenant by sufferance, he
is considered as having no estate at all, but a mere posses-
sion without privity (q). Like a tenant for life, a tenant
for a term of years, unless restrained by covenant or agree-
ment, may of common right take estovers or bates for fuel,
repairs, manure, or for other necessary purposes of the
land and premises, but he is also liable for any spoil or de-
struction which he may do to the premises during his
tenancy, to the injury of the inheritance ; he is therefore
pi-evented from exploring the ground for minerals, or other-
wise interfering with the surface, and he is generally liable
for all kinds of waste ; but it has been doubted whether he
is liable for merely permissive waste. The liability of a
tenant at will, and it is presumed of a tenant by sufferance
also, is similar to that of a tenant for years, both as regards
voluntary and permissive waste. In the case of Harnett v.
Maitland, Mr. Baron Parke's judgment on this question
was as follows : " All the authorities" (he says) " are col-
lected in the notes to Greene v. Cole (r), where it is
(o) Dyer 91^, pi. 12. (?) Co. Litt. 43 b , 54 b , 65, 93,
(p) 1 Kol. Abr. 137, 681; Gore v. 57 b , 270 b ; Shelford's Real Property
Perdue, Cro. Eliz. 309 ; Fitz N. B. Stat. pp. 175, 182.
148, G. H. ; 149 B. contr. (r~) 2 Saund. 252.
168
OWNERSHIPS IN MINERALS.
[CIIAU. vii.
Tenant stated as clear law, that at common law the action only
' t r ^^~lay against tenant by the curtesy, tenant in dower, or
by suffer- guardian, but that by the Statute of Gloucester, 6 Edw. I.
ance ' c. 5, the action is given against lessee for life or years or
tenant pur auter vie, or against the assignee of tenant for
life or years for waste done after the assignment. We are
all of opinion, however, that this declaration is defective on
general demurrer, for not bringing the case within the class
of persons who are liable for permissive waste, for want of
an averment that the defendant was tenant for life or
years, it being agreed on all hands that a tenant at will is
not liable for permissive waste" (s).
If an estate is granted for a long term of years, and the
grantee is made unimpeachable for waste, he would seem
to have the same privilege of searching for minerals as a
tenant for life unimpeachable for waste (t) ; but if a long
term of years became vested in a person for life with limi-
tations over, the tenant for life, as between himself and
those in remainder, is only entitled to the ordinary privi-
leges of a tenant for life impeachable for waste (w).
The proprietor of an estate leased for lives, renewable
for ever, must not commit destructive waste, but he may
commit meliorating waste ; such is the law as it has been
settled in the Irish courts (v), and there is no reason for
doubting its applicability to England.
Where a lessee under a covenant not to commit waste
has committed acts of waste, for which merely nominal
damages would be given, the Court of Chancery will not
entertain a suit against him founded on those acts of waste,
unless it appears that he contemplates committing further
waste (w).
() Harnett v. Maitland, 16 M &
W. 262. See also Herne v. Benbow,
4 Taunt. 764; Jones w. Hill, 7 Taunt.
392 ; Gibson v. Wells, 1 B. & P. N. R.
290 ; Martin v. Gilhara, 7 A. & E.
540.
(0 Garth, v. Cotton, 1 W. & T.
Leading cases; 1 Ves. 524, 546.
(w) Ferrand v. Wilson, 4 Hare,
344.
(p) Coppinger v. Gubbins, 3 J. &
La. T. 397 ; Lord Waterpark v.
Austen, 1 Jon. Ir. Ca. 627 n; Hunt
u. Browne, Sa. & Sc. 178 ; Pirn v.
Davies, 1 Hog. 11 ; Conolly v. Lord
Ely, 2 Moll. 515.
(w) Doran v. Carrol, 11 Ir. Ch.
Rep. 379.
SECT, ii.] FREEHOLD LANDS. 1G9
Although the estates and interests of tenants in com- Joint
mon (#), coparceners (y), and joint tenants (z), are in many tenants' in
respects materially distinguishable from each other, they all common,
have one common characteristic viz. that they hold their p arcenerg<
lands pro indiviso, so that the interest and possession of
each extends to every portion of the land. A feoffmcnt
executed by one would, under ordinary circumstances, bind
the others, and if one only should be in actual possession,
his possession is for many purposes the possession of the
others (a) ; but now, by the Statute of Limitations 3 & 4
Will. IV. c. 27, s. 12, it is enacted : " That when any one or
more of several persons entitled to any land (which includes
minerals unsevered from the soil) or rent ; as coparceners,
joint tenants, or tenants in common, shall have been in
possession or receipt of the entirety, or more than his or
their undivided share or shares of such land or of the
profits thereof, or of such rent for his or their own benefit,
or for the benefit of any person or persons other than the
person or persons entitled to the other share or shares of
the same land or rent, such possession or receipt shall not
be deemed to have been the possession or receipt of or by
such last-mentioned person or persons or any of them" (6).
They may agree to a partition (c), or if they cannot agree Partition,
upon it, a Court of Equity will generally entertain a suit
for a partition ; but in a case where several persons were
jointly entitled to several leases of a colliery worked in co-
partnership, a partition at the instance of one co-owner was
refused (d).
Any one of them may work mines, or grant or demise his Right of
interest to the others, or to strangers, and they may all cacl |_ to
concur in any act which affects the estate to which they are mines.
C*) Co. Litt. 180", 188 b , Amies v. d. Reed v. Taylor, 5 B. & Ad. 575,
Skillern, 14 L.J. Ch. 165. 583.
(y) Co. Litt. 163 a , 180, Litt. BS. (6) Woodroffe v. Doe d. Daniell,
241, 242; Cooper w. France, 19 L.J. 15 M. & W. 792; Tidball v. James,
Ch. 313. 92 L.J. Ex. 91.
(z) Co. Litt. 180, 188 b , 201*, (c) 4 Bac. Abrig. 503; Doc d.
Murray i>. Hall, 7 C. B. 455. Crosthwaite v. Dixon, 5 Ad. & Ell.
(a) Co. Litt. 189 ft , 190 b ; Doe d. 834; Darvill v. Roper, 24 L.J. Ch.
Barnett v. Keen, 7 T. R. 386; Doc 779.
d. Gill v. Pearson, G East, 173 ; Doc (
Chancellor said " there was nothing decided in the case as
to the right, but only that a lord of a manor might be in
the same situation with respect to mines as to trees viz. he
might have the property in them without being able to
cany the minerals away." The property in mines is there-
fore in the lord, the possession of them in the tenant, and
the latter may maintain trespass against a stranger, even
against the lord himself (o), for breaking and entering the
subsoil, even although no trespass should be committed on
the surface : but the lord, not having the possession, could
not maintain an action of trespass against a stranger. These
points were decided in the case of Lewis v. Branthwaite (p\ Lewis v.
wherein Lord Chief Justice Tenterden is reported to have
said : " It is well established that property may be in one
person and possession in another ; although, therefore, the
property in a mine be in the lord, it does not follow that
possession of it may not be in the copyholder. The pro-
perty in trees is in the lord, yet the possession of them is in
the tenant, and the latter may maintain trespass even
against the lord for cutting down trees ; unless, therefore,
there be a distinction between trees on the surface of the
soil and minerals below, the authorities cited as to trees are
in point. No decision or dictum has been cited which
warrants any such distinction. The general rule being that
he who has the surface has the subsoil, it seem to me that
the copyholder has possession of the subsoil, though he may
have no property in it. The authorities cited to show that
a lessee at will may take a release of the inheritance,
whereby his estate is enlarged, or a confirmation for his
life, upon which a remainder may be dependent, are in
favour of this opinion. As, then, the possession of a mine
is in the copyholder, and not in the lord, the former may
(o) Mitchell v. Dors, 6 Vesey, 147. Q>) 2 B. & Ad. 437.
Branth-
waite.
176 OWNERSHIPS IN MINERALS. [CHAP. vin.
maintain trespass for an entry upon it." And in the same
case, Littledale, J., further expounded the law. He said :
" It is not disputed that a freeholder, or one holding under
him for life, for years, or at will, has possession of the soil
from the surface to the centre of the earth ; but it is said
that there is a distinction in this respect between a copy-
holder who is the tenant at will of the lord and a tenant of
a freeholder ; that as the absolute property in the freehold
is in the lord, the property in the mine must be in him ;
and that as the plaintiff could not make use of these
minerals, he cannot maintain an action against a wrong-
Trespass, doer for committing a trespass in the soil below the surface ;
but if the possession of the mine were not in the copyholder,
it would be difficult to say to what extent any portion of
the subsoil belonged to him. I am of opinion that although
the property in the mine may be in the lord, he has not
such a possessory right in it as to entitle him to maintain
trespass against a wrong-doer ; but the copyhold tenant has
such a possessory right, and may recover substantial damages
for any actual injury done to the surface, and nominal
damages for a trespass committed below the surface. The
authorities as to trees are in point" (. Johnson, 10 East, 266. 0) See Scriven, 4th edit. pp. 424-
(r) Player v. Roberts, Sir AV. Jones, 444.
243 ; Bishop of Winchester v. Knight, (<) 3 M. & K. 639.
CHAP, vm.] COPYHOLD LANDS. 177
An injunction will also be granted at the instance of a injunction.
copyholder against his lessee (i<), of a copyholder in re-
mainder against a copyholder for life (v), and of the lord of
a manor against the copyhold tenants (10) or their under-
tenants (#).
But by prescription or custom the lord of the manor may Preset ip-
have a right to take the minerals against the copyholder, or
even against the crown ; and a copyholder may have the
same right against the lord (;$/).
But the custom, whether claimed by the lord or the
tenant, must be a reasonable one, and not destructive of the
soil (z).
By custom also a copyholder may be entitled to take
stone, marl, gravel, trees, or any other materials which may
be necessary for the repairs of the premises in his occupa-
tion (a), and it is probable that a Court of Equity would
sanction such a privilege without reference to custom (Z>);
and recently (c) it has been held that a custom in a manor
to take clay for the purpose of making bricks to be sold
" off the manor" may be established. On this point Mr.
Justice Wightman, in delivering judgment in the case of
the Marquis of Salisbury v. Gladstone (d), is reported to Marquis of
have said " that the copyholders of inheritance may, with- v a (]i a( ^ y
out license from the lord of the manor, break the surface stone.
and dig and get clay without stint in, upon, from, and out
of their copyhold tenements, for the purpose of making
bricks to be sold by them off the manor, is good in law. It
was contended for the plaintiff that such a custom was bad,
Dalton v. Gill, Cary, 89. v. Coupe, 9 M. & W. 450 ; Eowe v.
Caldwall v. Baylis, 2 Her. 408; Brenton, 8 B. & C. 76G ; Marquis of
Scriven, 426. Salisbury v. Gladstone, 30 L.J. Ex. 3 ;
(w) Attorney-General v. Vincent, 8 Jur. N.S. G25.
Bunk 102 ; Parrctt v. Palmer, 3 M & (z) Hilton v. Lord Granville, 5
K. G30; Mil. PI. 4th edition, 139; Q.15. 701 ; s.c. Cr. & P. 294; Broad-
Andrews v. Hulse, 4 K. & J. 392. bent v. Wilks, Willes, 3G1 ; Marquis
(a;) Cuddon v. Morlcy, 7 Hare, 202. of Salisbury v. Gladstone, supra, and
(y) Co. Lilt. 122 a, Godb. 173; post, p. 179.
Gilb. Ten. 425 ; 13 Co. G8 ; Hopkins () Scriven, pp. 422, 428 n.
r. K't.liinsoii, 1 Mod. 74; Bishop of (i) Hcydon v. Smith, 13 Rep. G8.
Winchester v. Knight, 1 P. Wms. (c) Marquis of Salisbury v. GLul-
40C; Potter v. North, 1 Vent. 383; stone, suprb; G Jur. N.S. 1209; 8 Jur.
North v. Coe, Vaugh. 251; Rex v. N.S. G25.
Lord Yarborough, 3 B. & C. 91 ; (d) 30 L.J. Ex. 4.
Curtis v. Daniel, 10 East, 273; Hoyle
N
O)
(t?)
178 OWNERSHIPS IN MINERALS. LCHA?. vm.
as inconsistent with the right of the lord, who had an inte-
rest in the soil; and that the custom extended to taking
away the soil itself, which the copyholder could, even hy
custom, have no right to do, because it was the lord's land,
who might become entitled to the immediate possession of
the copyhold tenements by forfeiture or escheat. We are,
however, unable to draw any sound distinction between a
custom for copyholders to take all the timber or trees, or all
the minerals in their copyholds, and such a custom to take
clay as that in question. I may observe that it appears to
Profit us that the cases of profit a prendre, or easements on the
fc prendre. was ^ e o f j-} ic I rd, or in alieno solo, have no application to
the present question. A copyholder may by custom not
only have a possessoiy but a proprietaiy right in the trees
and minerals in his copyhold tenement. In the case of
minerals, the taking is, in effect, a taking of a portion of
the corpus of a copyhold tenement. There appears to be
no doubt but that a copyholder of inheritance may not
only by custom work old mines already opened, but that he
may also by custom dig within his tenement for new ones,
and, if successful, work them. The case of the Bishop of
Winchester v. Knight (e) is an authority for the proposi-
tion, that by custom a copyholder of inheritance may open
and work new mines. Gilbert, C.B., in his treatise on
Tenures (p. 327), says that a copyholder of inheritance
cannot, without a custom, dig for mines, obviously meaning
that with a custom he could. In Scriven on Copyholds
(p. 420), it is said that by custom a copyholder of in-
heritance may be entitled to the trees and mines in his
copyhold. The plaintiffs counsel, in his argument, did not
doubt but that a custom for a copyholder to have and work
quarries and mines might be good, but contended that the
surface must be left. But no case was cited to warrant
such a conclusion. It may be that a mine, or mineral, or
a quarry of stone might occupy the whole surface of the
particular copyhold tenement, and that a general right to
take stone or minerals would necessarily involve the taking
(e) 1 P. Wins. 40C.
cn.vr. vin.] COPYHOLD LANDS. 179
the surface. But in the present case there is nothing to
show that the taking the clay would necessarily involve the
taking of the surface. All the clay might be so situate as
to be capable of being got at, as coals or other minerals.
But, however that may be, we think there is nothing to
show that such a custom as that in question is unreasonable
or bad in point of law ; and we may further observe that it
is said, in Scriven on Copyholds (p. 26), that a custom is
not unreasonable because it is prejudicial to or diminishes
the lord's casualty profit as to escheat. For these reasons -
we think the defendant is entitled to our judgment." The
above judgment was affirmed in the House of Lords (/).
The customs of one manor are not generally admissible When
to explain the customs of another manor, but there are some
modifications of this rule. For instance, evidence has been may ex-
admitted to prove that a custom may affect a whole
district () Sees. 56, 57.
Lords'
rights re-
served.
Tenants
may grant
rights of
way and
easements.
CHAP, via.] COPYHOLD ENFRANCHISEMENT. 183
enfranchisement under the Act, to grant to the lord of the Enfran-
manor such rights of entry and way, and other easements, cl
in or upon and through their respective lands as may be
requisite for the purpose of enabling the said lord, or his
agents or workmen, the more effectually to win and carry
away any mines or minerals under the lands of such tenants,
or any of them ; and that, for the purposes of such grant,
it is sufficient in the case of a commutation to state the fact
of such grant, and the consideration, if any, to be payable
for the same, in the agreement of commutation ; but in the
case of an enfranchisement of lands (subject to the lord's
rights in mines and minerals), such rights of entry and way,
and other easements, are to be reserved and granted in the
enfranchisement conveyance. Section 97 provides, that the
before-mentioned provision, for enabling tenants to grant
rights of way or entry, and other easements, to the lord of
the manor, shall extend and apply to manors and lands
vested in Her Majesty, in right of her crown and the duchy
of Lancaster, but not to the possessions of the duchy of
Cornwall (w).
By the first section of 6 Vic. c. 23, enfranchisements may 6 Vic. c. 23.
be made either wholly or partially, in consideration of an
" annual rent in fee," and any commutation or enfranchise-
ment may, in addition to the provisions of 4 & 5 Vic. c. 35,
be made either wholly or partially, in consideration of u
conveyance of lands, parcel of the manor, and be subject to
any right to mines or minerals in or under such lands.
And by section 5 of 7 & 8 Vic. c. 55, it is provided, 7 & 8 Vic.
u that in addition and subject to the provisions of the afore- c ' ' } '
said Acts, or either of them, any commutation or en-
franchisement may be made wholly or in part, for the con-
sideration of a conveyance of lands, or of any right to
mines or minerals, although the said lands, or the said right
to mines or minerals, so to be conveyed, shall not be parcel
of or situate in or under the lands of the same manor, as
the lands so to be commuted or enfranchised, provided that
the said lands, or the said right to mines or minerals, in the
opinion of the Copyhold Commissioners, can be conveniently
(w) Sees. 97-99.
1^1. OWNERSHIPS IN MINERALS. [CHAP. vm.
Enfran- held with the same manor, and are subject, so far as the
ciiisement. t "[iff cren - ce o f tenure may permit, to the same uses and
trusts, as the lands so to be commuted or enfranchised shall
be subject to, at the time of such commutation or en-
franchisement, or to uses and trusts in correspondence with
which the said lands shall be then settled at law or in
equity ; and that it shall be lawful for the person empowered
by the aforesaid Acts to obtain such commutation or en-
franchisement, to convey the said lands or rights to mines
and minerals, to the person commuting or enfranchising the
lands proposed to be commuted or enfranchised, and to his
heirs, to the uses, and upon and for the trusts, intents, and
purposes, to, upon, and for which the manor of which the
lands commuted or enfranchised are parcel, shall be subject
and held at the time of such commutation or enfranchise-
ment ; subject always, as to any leases to which such lands
may be subject, to all the provisions of the last-mentioned
Act in respect to lands therein permitted to be conveyed."
15 & 16 The Act 15 & 16 Vic. c. 51, being an Act to extend the
Vic. c. 51. provisions of the three before-mentioned Acts and for the
commutation of manorial rights, and for the gradual en-
franchisement of lands of copyhold and customary tenure,
gives further facilities for the enfranchisement of the said
lands ; and by section 48, it is enacted that no enfranchise-
ment under that Act shall extend to, or affect, the estate or
rights of any lord of any manor, or tenant, in or to any
mines, minerals, limestone, lime, clay, stone, gravel, pits, or
quarries, within or under the lands enfranchised, or within
or under any other lands, or any rights of entry, rights of
way and search, or other easements, of any lord or tenant,
in, upon, through, over, or under any lands, or any powers
which in respect of property in the soil might but for such
enfranchisement have been exercised, for the purpose of
enabling the said lord or tenant, their or his agents, work-
men, or assigns, more effectually to search for, win, and
work any mines, minerals, pits, or quarries, or to remove
and carry away any minerals, limestone, lime, stones, clay,
gravel, or other substances, had or gotten therefrom, unless
with the express consent in writing of such lord or tenant ;
CHAP, vm.] COPYHOLD ENFRANCHISEMENT. 185
and nothing in the said Act is to extend to any copyhold
lands held for a life or lives, or for years, when the tenant
has no right of renewal (#).
By 16 & 17 Vic. c. 57, s. 1, the before-mentioned Acts 16 & 17
are made applicable to lands held of Ecclesiastical Corpo- ^ '' c> 57)
rations aggregate and sole, and the provisions of those
statutes and of this Act are to be read and construed as one
Act (y).
All the before-mentioned Acts passed in the reign of Her
present Majesty have been either wholly or partially re-
pealed or amended by the 21 & 22 Vic. c. 94, as from the 21 & 22
1st of October, 1858, as will appear from the following
provisions. By section 2, it is provided that the following
Acts and sections and parts of sections of the Copyhold Repeal of
Acts are hereby repealed ; that is to say, the whole of the Acts^
before-mentioned Act of the 16th and 17th of Victoria,
chapter 57 ; so much of the llth section of the 4 & 5 Vic.
c. 35, as follows after the words " substituted in the place of
such lord, tenant, or other person ;" the Avhole of the 2nd,
llth and 27th sections of the 15 & 16 Vic. c. 51 ; and all
the provisions of the Copyhold Acts which authorize com-
mutations by schedule of apportionment, and also all the
provisions which authorize commutations by a schedule to
be prepared by the steward, and also all the provisions
which authorize enfranchisement by schedule of apportion-
ment, and also all the provisions which authorize the
charging of enfranchisement or compensation monies or
the expenses of commutation or enfranchisements upon
land.
The repeal of the above Acts and sections of Acts is not Repeal not
to affect any commutations or enfranchisements or charges Actsdone
already effected, or any rights or remedies attaching thereto,
or any acts done in pursuance of the Act or provisions
specifically repealed, or rights or remedies vested by or re-
sulting therefrom (z) ; and it is further provided that the
Copyhold Acts are not to extend to any manors belonging, Ecclesiasti-
either in possession or reversion, to any Ecclesiastical cal manors -
(z) Sec. 48. (z) Sec. 3.
(jj) Sec. 7, Act partially repealed.
ISO OWNERSHIPS IN MINERALS. [CIIAF. vni.
Corporation, or to the Ecclesiastical Commissioners for
England, where the tenant hath not a right of renewal,
and provision is made for the application of consideration
monies in cases where enfranchisements might have been
effected under 14 & 15 Vic. c. 104 (a).
Mode of "When any lord or tenant shall, under the provisions of
compuiLy the 15 & 16 Vic. c. 51, or this Act (21 & 22 Vic. c. 94), re-
enfran- quire the enfranchisement of any land held of a manor, ho
must give notice in writing (the lord or his steward to the
tenant, or the tenant to the lord or his steward) of his desire
that such land shall be enfranchised ; and the consideration
to be paid to the lord for such enfranchisement, and also
the sum to be paid to the lord in respect of any fine or
heriot as is mentioned in the 7th section, shall, unless
the parties agree about the same, be ascertained under
the directions of the Copyhold Commissioners, and upon
a valuation to be made in manner" pointed out in the
Act (b).
Award of " After the valuation has been made, or upon the receipt
^ ^ ie a g reement f tnc parties, the Commissioners, having
made such inquiries concerning the circumstances of the
case as to them shall seem fit, and having duly considered
the applications made to them by the parties, may frame an
award of enfranchisement in the terms of the valuation,
and in such form as they shall provide, and may confirm
the same ; and such confirmed award shall have the same
force and validity for all purposes of enfranchisement or
otherwise as a deed of enfranchisement now has under the
provisions of the Copyhold Acts, or would have had under
any provision of the Copyhold Acts which is by this Act
repealed ; and for all purposes of declaring the amount,
nature, and particulars of the compensation, and for attach-
ing thereto the remedies provided by the Copyhold Acts,
the said confirmed award shall have the same force and
validity as an award made by valuers or an umpire under
the provisions of the Copyhold Acts : Provided, never-
theless, that nothing herein contained shall affect the right
of the steward for the time being of any manor to receive
such sum of money by way of compensation or otherwise as
(a) Sees. 4, 5. (6) Sec. 8.
CHAP, vm.] COPYHOLD ENFRANCHISEMENT. 187
he would have been entitled to if such enfranchisement had
been effected by a deed of enfranchisement under the pro-
visions of the Copyhold Acts or any of them : Provided
also, that the commissioners shall, fourteen clear days
before confirmation of any such award, serve a copy of the
same in the form in which it is proposed to be confirmed
upon the steward of the manor of which the lands to be
enfranchised are held" (c).
" After enfranchisement, whether under the voluntary When
or compulsory proceedings of the Copyhold Acts, the fran-
owner of the lands so enfranchised shall, notwithstanding chised
any reservation of mines or minerals in the said Acts or in u a s t s h ay
any instrument of enfranchisement contained, have full soil.
power and right to disturb or remove the soil so far as may
be necessary or convenient for the purposes of making
roads or drains or erecting buildings or obtaining water
upon the said lands : Provided always, that this shall not
prejudice the rights to any mines or minerals, or to work
and carry away the same, which were reserved by section
48 of the Copyhold Act, 1852" (d).
The Act contains provision respecting the mode of pay-
ment of the enfranchisement money to the persons entitled
to the same (e~) ; and also for charging any expenses of en-
franchisement upon the manors or lands enfranchised^);
and in reference to priority of charges, and the recovery of
all sums of money due in respect thereof (#). And in cases
of difference between the Commissioners of Her Majesty's
Woods, Forests, and Land Revenues, or either of them on
behalf of Her Majesty in right of her crown and the tenants
of any hereditaments to be enfranchised touching the amount
of consideration money to be paid in reference thereto, the
said matter may be referred to arbitration. Further pro-
vision is then made for the payment of compensation, and
for finally carrying out the enfranchisements, and also in
inference to any manor held in joint tenancy by the crown.
The Act is to be taken and construed as part of the other
Copyhold Acts before referred to in this chapter (7t).
(c) Sec. 10. (/) Sees. 22-32.
(d) See section 48 of 15 & 16 Vic. (#) Sees. 33, 34, 35.
c. 51, ante, p. 181. (*) Sees. 41-50.
(e) Sees. 13, 15-21.
188
OWNERSHIPS IN MINERALS.
[CHAP, ix
CHAPTER IX.
Tyring-
s case.
The lord's
rights.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
COMMONS, WASTE, AND ENCLOSED LANDS.
Tyringham's Case. Lord of the Manor is entitled to the Minerals, and may
work Mines and Quarries. Commoners' Rights. Prescription Custom.
Mines pass on Allotment, unless reserved. Enclosure Acts Mines and
Minerals expressly provided for Reservation of Rights of the Lord. When
Ownership in Minerals distinct from the Surface, rights of the respective
Proprietors, Lessees, and other Persons not to be affected by the Encbsure
Surface damage Power to work Enclosed Lands.
A RIGHT of common is a right which one person has of
some part O f the produce of the land which is
vested in another. Like all claims of right in alieno solo,
it must be definite and certain (a). Tyringham's case (6) is
a leading authority, and the other authorities quoted in this
work in reference to the rights of the lord and the tenant in
copyhold lands are generally applicable to the rights of the
lord and the commoner in commons and waste lands (c).
As in copyhold, so in commons and waste lands, the lord
O f the manor j ias the property in minerals, but in commons
and waste lands the rights of the lord are more extensive
than in copyhold lands ; he may open mines without being
liable for damage to the surface necessarily caused by such
working (d) ; but the exercise of the right must be bond
fide and without malice (e) } and the rights of the commoners
not improperly interfered with (/).
(a) Lady Wilson v. Willes, 7 East,
121 ; Clayton v. Corby, 2 Q.B. 815;
5 Q.B. 419 ; Bailey v. Stevens, 31 L.J.
C.P. 226.
W) 4 Co. 36.
(c) See ante, p. 172.
(d) Bateson v. Green, 5 T. R. 411 ;
Tyrwhitt v. Wynne, 2 B. & Aid. 554 ;
Arlett v. Ellis, 7 B. & C. 366 ; Doe d.
Dunraven v. Williams, 7 Car. & P.
332.
(e) Place v. Jackson, 4 Dow. & R.
318.
(/) Drury v. Moore, 1 Stark, 102 ;
Badger v. Ford, 3 B. & Aid. 153 ;
Hilton v. Lord Granville, 5 Q.B. 729 ;
re Mill, Bart, and Her Majesty's
Commis. of Forests, 18 C. B. 64,
70 ; Blackett v. Bradley, 1 B. & S.
940.
CHAP, ix.] COMMONS AND WASTE LANDS. 189
Custom may deprive the lord of the manor of the Custom.
minerals (g\ and he may lose his right by neglecting to
assert it ; he may also transfer his right to others by im-
plication, as well as by express grant (7i). The lord may
also acquire by prescription a more extensive power to work
minerals than he primd facie possesses as owner of the
soil(i), but in the case of Blackett v. Bradley, it was
recently decided that the lord of a manor could not claim
or have a prescriptive right to search for, win, and work the
coal mines lying and being under commons and waste lands,
without leaving a sufficient support for the lands in and
under which the mines were situate, and without making
or paying satisfaction for any injury caused by such
working (f).
Commoners, althougn they have no interest in the Com-
minerals, may, nevertheless, acquire a right to dig for
gravel and other materials necessary for repair of the
premises (&), and a prescriptive right may be acquired for
other purposes, but when derogatory to the lord's rights, it
must be established by indisputable evidence (/).
But mines in commons and waste lands are not in the Mines
nature of a royalty, and will pass on allotment, unless ex- P ass on
pressly reserved (m); if the lands allotted were freehold, unless re-
mines would also belong to the allottee ; if leasehold, the served -
rights of the lord and the lessee would remain as in ordinary
cases ; whilst if the lands were copyhold, the incidents of
that estate would follow viz. the lord would retain the
property in the mines, whilst the tenant would have the
possession ; neither having any power to work them unless
by mutual consent (n).
The saving clause in the Enclosure Act, 41 Geo. III. Enclosure
c. 109, reserves the rights of all persons whose interests are Acts "
GO
(*)
Post, p. 177. (&) Duberley v. Page, 2 T. R. 392 ;
Co. Litt 122" ; Curtis v. Daniel, Shakspear v. Peppin, G T. R. 741.
10 East, 273 ; Barnes v. Mawson, 1 (/) Clayton v. Corby, 5 Q.B. 422 ;
M. & S. 77 ; Doe d. Lowes v. Davidson, Attorney-General v. Mathias, 4 Kay
2 M. & S. 194. & J. 579.
(0 Hilton v. Lord Granville, 5 (m) Townleyt?. Gibson, 2 T. R. 701;
Q.B. 729. Doe d. Sweeting v. Ilellard, 9 B. &
( 1 B. & S. 940 ; 2 & 3 Will. IV. C. 789.
c. 71 ; post, " Prescription." () Ante, p. 172.
190 OWNERSHIPS IN MINERALS. [CHAP. ix.
not clearly barred ; and the 4 & 5 Vic. c. 35, passed for
the commutation of certain manorial rights, and for the
enfranchisement of copyhold lands, provides, that nothing
in that Act shall operate so as to authorize or empower any
lord of any manor to enclose any commons or waste lands (o) ;
and the subsequent Act of 6 & 7 Vic. c. 23, further provides,
that enfranchisement may be made, subject to any right of
waste in lands belonging to the manor (p).
By 8 & 9 Vic. c. 118, being an Act for facilitating the
enclosure exchange and division of commons, it is pro-
vided by section 27, that the Enclosure Commissioners are
to embody in a provisional order the terms and conditions
on which they are of opinion that an enclosure may be
made, and of the proposed quantity and situation of the
allotments; and in case the lord of the manor shall be
entitled to the soil of the land proposed to be enclosed,
the commissioners are to specify the share, or his portion
of the residue of the land proposed to be allotted to the lord
of the manor, in respect of his rights or interests in the soil,
and whether such allotment is exclusive or inclusive of his
Mines and right or interest in all or any of the mines, minerals, stone,
expressly anc ^ other substrata under such lands, or inclusively or ex-
provided clusively of any right of pasturage which may have been
usually enjoyed by such lord or his tenants, or any other
right or interest of such lord in the land to be enclosed, as
the case may appear to the commissioners to require, or as
the parties interested, with the approbation of the commis-
sioners, may have agreed, and in case there shall be any
mineral property, or any rights in relation thereto, not
vested in the lord of the manor, or other rights which shall
appear to the commissioners proper to be specially provided
for upon such enclosure, or to be excepted from the opera-
tion thereof, they are to specify the provisions or exception
which should be made in that behalf ; and after obtaining
such consent as is provided for by the act, the enclosure
may be made.
Where proceedings were taken under this Act, at the
instigation of persons who claimed rights of common over
(o) Sec. 82. (p) Sec. 1.
CHAT, ix.] COMMONS AND ENCLOSED LANDS. 191
the land proposed to be enclosed, the owner of the land
being entitled to take brick earth, without interfering with
the rights of common, it was held that the interest of such
owner in respect of the brick earth ought to be taken into
consideration in calculating the interests of the assenting
and dissenting parties under the before-mentioned 27th
section, notwithstanding all minerals and other substrata
had been expressly reserved to such owner by the pro-
visional order ; and a prohibition was granted against the
commissioner proceeding with the enclosure without the
consent of such owner, or taking the value of the brick
earth into account in reckoning the assents and dissents (q).
By section 97 of the said Act, 8 & 9 Vic. c. 118, it is Reserva-
enacted : " That in every case in which, under the pro- r j g hts of
visions herein-after contained, part of the land subject to be the lord<
enclosed under this Act shall be converted into and iised as
a regulated pasture, and the residue thereof shall be divided
and allotted in severalty, it shall be lawful for the valuer,
having regard to the right of the lord of the manor, as the
same shall have been ascertained and declared by the pro-
visional order of the commissioners, and with the consent
of the lord of the manor and a majority in value of the
other persons interested in the lands proposed to be en-
closed, to direct that the rights of the lord of the manor in
and to all or any of the mines, minerals, stone, and other
substrata, under such part of the land as shall be converted
into and used as a regulated pasture, shall be reserved to
the lord, and that all or any of the mines, minerals, stone,
and other substrata, under the residue to be divided and
allotted in severalty, shall become the property of the
owners of the respective allotments, and that the allot-
ments be adjusted accordingly."
And by section 98 it is provided : " That in every case when pi-G-
in which the right to all or any of the mines, minerals, v e ^y in
stone, and other substrata, under any land enclosed under distinct
this act, shall exist as property distinct and separate from fro ' n thc
the property in the surface, and shall not be compensated
(?) Church v. The Enclosure Commis. 31 L.J. C.P. 201. See also Paine
v. Ryder, 24 Beav. 151.
192
OWNERSHIPS IN MINERALS.
[CHAP. ix.
22 &23
Vic. c. 43.
Rights re-
served to
be specified
in pro-
visional
order.
Provision
as to sur-
face
damage.
upon the enclosure, the right and property in such mines,
minerals, stone, or other substrata, and all rights and ease-
ments, auxiliary to, or connected with the exercise or enjoy-
ment of the right and property in such mines, minerals,
stone, or other substrata, shall be in nowise affected by the
enclosure ; and in case any mines, minerals, stone, or other
substrata under any land enclosed under this Act, or the
right of searching for or getting the same, shall have been
leased, or agreed to be leased, to any person as property
distinct and separate from the property in the surface, with
or without powers over the surface of the land auxiliary
to the purposes of such lease, the rights of the lessee or
tenant under such lease or agreement shall be in nowise
affected by the enclosure."
And by the 22 & 23 Vic. c. 43, it is enacted that : " On
any enclosure where the mines, minerals, stone, or other
substrata under the land to be enclosed shall be excepted
or reserved to the lord of the manor or any other person, the
provisional order to be made by the Enclosure Commis-
sioners for England and Wales shall (in addition to the
other matters to be specified therein under the said Acts)
specify whether or not a right to enter the lands when
enclosed for the purpose of opening, working, or winning
such mines, minerals, stone, and other substrata, is to be re-
served to such lord or other person, and whether or not any
compensation is to be made by the persons exercising such
last-mentioned right for any damage to the surface which
may thereby be done, and if not, then whether or not any
such other provision for compensation of such damage as
herein-after mentioned is to be made" (r).
" For the purpose of providing for compensation for any
such damage as aforesaid, it shall be lawful for the lord of
the manor or other the person entitled to such mines,
minerals, stone, or other substrata as aforesaid, and for the
other persons interested in the land proposed to be enclosed,
or such proportion of the persons so interested as by the
27th section of the Act of the 8th and 9th years of
Victoria, c. 118, are required to consent to an enclosure
() Sec. 1.
CHAP, ix.] COMMONS AND ENCLOSED LANDS. 193
before the Enclosure Commissioners can in any annual
general report certify their opinion that the proposed
enclosure would be expedient, to agree as to the mode in
which compensation for surface damage from such entry
and opening, working or winning, shall be made to the
individual owners whose allotments may be so damaged,
whether wholly by the lord or such other person entitled to
the mines, minerals, stone, or other substrata as aforesaid,
or wholly by the owners of allotments (including the lord
or such other person) collectively, or partly by the lord or
such other person, and partly by the other owners of allot-
ments collectively ; and such agreement, when made, shall,
if allowed by the Enclosure Commissioners, be stated to
the valuer as part of his instructions, and its terms shall be
embodied by him in his report and in his award of which it
shall form part" (s).
" In every case in which the right and interest in all or Powers to
any mines, minerals, stone, and other substrata are reserved
by any provisional order to be issued after the passing of
this Act to the lord of the manor or such other person
entitled to the soil of the land enclosed as aforesaid, and
with a further reservation to the lord or to such other
person of a right to enter the lands when enclosed and
work such mines, minerals, stone, and other substrata, it
shall be lawful for the lord, his heirs and assigns, or for
such other person entitled to the soil as aforesaid, his heirs
and assigns, at any and at all time and times thereafter, by
himself or themselves, or his or their tenants, agents, or
servants, and with or without horses or other animals, or
carnages, and materials of all kinds, to enter upon the said
lands or any part thereof, and to break the surface thereof,
and search for, win, work, take, and cariy away the said
mines, minerals, stone, and other substrata, or any of them,
and for that purpose to dig, sink, drive, and make pits,
shafts, drifts, headways, levels, adits, airgates, watercourses,
soughs, trenches, buddies, fences, and sluices, and to erect,
build, and make pumps, engines, furnaces, smelting-houses,
stamping mills, ore and store houses, sheds, hovels, and
0) Sec. 2.
194 OWNERSHIPS IN MINERALS. [CHAP. ix.
stables, and other erections, and to do all other things neces-
sary or convenient, as well for working the said mines as
for refining the metals and minerals, hewing and working the
stone and other substrata, and removing all the water, slag,
and rubbish from the works, and for the accommodation of
the persons employed therein, and to occupy such part of
the said land as shall be convenient and sufficient for lay-
ing, ordering, and dressing the ores, minerals, metals, stone,
and other substrata, and, if judged necessary, to alter the
course of streams, and to maintain, repair, and use any
railroads or other roads for any of the purposes aforesaid,
and generally to do all other things necessary or convenient
for the sinking, winning, working, and carrying away the
said mines, minerals, stone, and other substrata, and for re-
fining the metals and minerals, and hewing and working the
stone and other substrata thereby produced" (f).
dama es to " ^ n case ^ sna ll be provided that the whole or any part
be assessed, of such compensation as aforesaid shall be made by the
owners of allotments collectively, either including or not
including the lord or such other person as aforesaid, then
all such damage as may at any time and from time to time
be done to any allotment by any of the means aforesaid
shall be assessed and raised as follows (that is to say) : It
shall be lawful for any person who may sustain any such
damage as aforesaid to give information thereof to any two
or more justices of the peace for the county or riding or
other division or place within which the lands which shall
have been enclosed, or the greater part thereof, shall be
situate (ten days' previous notice of such intended informa-
tion having been fixed on the church door of the parish or
other ecclesiastical district) ; and such justices shall and are
hereby empowered to examine and inquire into such com-
plaint in a summary way, and by examination of witnesses
upon oath, or by such other evidence as they shall think
proper ; and such justices shall determine the amount of
such damage, and order the payment thereof to the party
damaged by the persons and in the manner hereinafter
expressed" (ii).
(0 Sec. 3. () Sec. 4.
CHAP, ix.] COMMONS AND ENCLOSED LANDS. 195
" Every sum of money to be paid in satisfaction of sucli Payment of
damages, and the reasonable charges of giving and prose-
cuting such information (to be settled by the said justices),
shall be borne and paid by the owners for the time being of
all the allotments on whom it shall by the award have been
imposed, or their tenants, including the owner of the allot-
ment damaged, or his tenant, by a rate to be assessed upon
them in respect of their allotments or their shares therein
by such justices according to the respective yearly values
thereof, which shall be ascertained in manner hereinafter
in that behalf directed or referred to" (v).
The rate may be levied by distress, and further provision
is made respecting the award of the valuer and other
matters consequent upon the enclosure (w).
By the 25 & 26 Vic. cc. 47 & 94, certain lands were au-
thorized to be enclosed in pursuance of special reports of
the Enclosure Commissioners.
Where lands were ordered to be enclosed by an Act of
Parliament, the minerals and stones underneath being the
property of the lord, it was held that the rights of the lord
were reserved by implication, although no express reserva-
tion of them was made in the act (#) ; and where an Act
directed allotments for public and specific purposes, one-
fifth to be allotted to the lord of the manor for his interest
in the soil, and the remainder of the common to be divided
amongst the commoners to be held in severally, and it was
declared that the lord's seignorial rights were not to be pre-
judiced, except the right to the soil, and that he might
thereafter enjoy all rents, heriots, " and all mines, minerals,
quarries, and other royalties," as if the Act had not been
passed, it was held that the lord retained his rights to the
minus and minerals under the land allotted to the commoners
in severally (y\
Rights of Common are not to be affected by a declara-
tion of title obtained under the 25 & 26 Vic. c. 67, s. 29."
() Sec. 5. (a;) Micklethwait v. Winter, 6 Exch.
(>) Sees. 6-15. Rep. 644.
(y) Pretty v. Solly, 26 Beav. 60G.
02
190
OWNERSHIPS IN MINERALS
[CHAP, x.
CHAPTEE X.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES, IN
UNDER AND ADJACENT TO
RAILWAYS
HIGHWAYS
CANALS
WATERWORKS.
Railway
Clauses
Act.
Minerals
do not
pass to
company.
RAILWAYS.
Railway Clauses Act, 1845. Minerals do not pass on a Conveyance of the Land
Owners may work Mines after notice Liberty to cut Airways, Headway g,
Gateways, Water-levels. Company to make Compensation for Losses to Owners
may enter and inspect Mines Railway to be protected. Lands Clauses Act
incorporated with Railway Clauses Act Decisions as to working Mines
Comfiensation Surface and Lateral support. Compensation for future loss.
Arbitration. Scotland. Ireland. Kent- charges. Inquisition under Ijands
Clauses Act. Compensation for Severance of Lands. When an action lies,
and not an assessment of damages under the Acts Works for accommodation
of Owners Decisions in reference to Mines.
ALTHOUGH mines and minerals generally pass under a
conveyance of the land, there is an exception in respect of
lands purchased for a railway to be constructed by Act of
Parliament. By the Railway Clauses Consolidation Act,
1845, 8 & 9 Vic. c. 20, section 77, it is enacted that: "A
railway company shall not be entitled to any mines of coal,
ironstone, slate, or other minerals, under any land pur-
chased by them, except only such parts thereof as shall be
necessary, to be dug or carried away, or used in the con-
struction of the works, unless the same shall have been ex-
pressly purchased ; and all such mines, excepting as afore-
said, shall be deemed to be excepted out of the conveyance
CHAP, x.] UNDER RAILWAYS.. 197
of such lands, unless they shall have been expressly named
therein and conveyed thereby" (a).
" If the owner, lessee, or occupier of any mines or Owner may
minerals lying under the railway, or any of the works con- ^ es after
nected therewith, or within the prescribed distance, or, notice,
where no distance shall be prescribed, forty yards there-
from, be desirous of working the same, such owner, lessee,
or occupier shall give to the company notice in writing of
his intention so to do, thirty days before the commencement
of working ; and upon the receipt of such notice it shall be
lawful for the company to cause such mines to be inspected
by any person appointed by them for the purpose ; and if
it appear to the company that the working of such mines
or minerals is likely to damage the works of the railway,
and if the company be willing to make compensation for
such mines or any part thereof to such owner, lessee, or oc-
cupier thereof, then he shall not work or get the same ; and
if the company, and such owner, lessee, or occupier, do not
agree as to the amount of such compensation, the same shall
be settled as in other cases of disputed compensation" (I).
" If, before the expiration of such thirty days, the com-
pany do not state their Avillingness to treat with such owner,
lessee, or occupier for the payment of such compensation, it
shall be lawful for him to work the said mines, or any part
thereof, for which the company shall not have agreed to pay
compensation, so that the same be done in a manner proper
and necessaiy for the beneficial working thereof, and ac-
cording to the usual manner of working such mines in the
district where the same shall be situate, and if any damage
or obstruction be occasioned to the railway or works by
improper working of such mines, the same shall be forth-
with repaired or removed, as the case may require, and such
damage made good, by the owner, lessee, or occupier of
such mines or minerals, and at his own expense; and if
such repair or removal be not forthwith done, or, if the
company shall so think fit, without waiting for the same to
be done, by such owner, lessee, or occupier, it shall be law-
ful for the company to execute the same, and recover from
(a) Sec. 77. (V) Sec. 78 ; post, pp. 200, 203, 205.
198
OWNERSHIPS IN MINERALS
[CHAP. x.
Liberty
to cut
airways,
water-
levels,
&c. &c.
Company
to make
compensa-
tion.
such owner, lessee, or occupier, the expense occasioned
thereby, by action in any of the superior courts" (e).
" If the working of any such mines under the railway or
works, or within the above-mentioned distance therefrom, be
prevented as aforesaid by reason of apprehended injury to
the railway, it shall be lawful for the respective owners,
lessees, and occupiers of such mines, and whose mines shall
extend so as to lie on both sides of the railway, to cut and
make such and so many airways, headways, gateways, or
water-levels through the mines, measures, or strata, the
working whereof shall be so prevented, as may be requisite
to enable them to ventilate, drain, and work their said
mines, but no such airway, headway, gateway, or water-
level shall be of greater dimensions or section than the pre-
scribed dimensions and sections, and where no dimensions
shall be prescribed, not greater than eight feet wide and
eight feet high ; nor shall the same be cut or made upon
any part of the railway or works, or so as to injure the
same, or to impede the passage thereon" (d).
" The company shall from time to time pay to the owner,
lessee, or occupier of any such mines extending so as to lie
on both sides of the railway, all such additional expenses
and losses as shall be incurred by such owner, lessee, or oc-
cupier, by reason of the severance of the lands lying over
such mines by the railway, or of the continuous working of
such mines being interrupted as aforesaid, or by reason of
the same being worked in such manner and under such re-
strictions as not to prejudice or injure the railway, and for
any minerals not purchased by the company which cannot
be obtained by reason of making and maintaining the rail-
way ; and if any dispute or question shall arise between the
company, and such owner, lessee, or occupier as aforesaid,
touching the amount of such losses or expenses, the same
shall be settled by arbitration" (e).
" If any loss or damage be sustained by the owner or oc-
cupier of the lands lying over any such mines the working
whereof shall have been so prevented as aforesaid (and not
being the owner, lessee, or occupier of such mines), by
(c) Sec. 79. ( 61>
occupation of any person for agricultural purposes, are
to be deemed and taken to be enclosed lands or grounds
within the meaning of the before-mentioned Act of 5
& 6 Will. IV. c. 50, even although the said lands or
grounds may not be separated from any adjoining lands,
or from a highway by any fence or other enclosure.
The before-mentioned Act of 5 & 6 Will. IV. c. 50,
enabled the authorities of a parish to sell and convey lands
from which the said materials had been exhausted, and to
purchase other lands in lieu thereof ; and by 8 & 9 Vic. 8 & 9 Vic.
c. 71 it is provided that the provisions of the bef ore-men- c '
tioned Act shall apply and extend not only to the lands
in the said Act specified, "but to all lands belonging or
which thereafter may belong to parishes, or to the sur-
veyor of the highways, for the purposes aforesaid, which
(A) Sec. 51. (0 Sec. 52. (ro) Sees. 53, 65. () Sec. 57. (o) Sec. 70.
P2
212
OWNERSHIPS IN MINERALS
[CHAP. x.
Surveyors
not to
exercise
powers
have been or thereafter shall be lawfully used for the
purpose of obtaining materials for the repair of the high-
ways in such parish, the materials in which lands have
been or thereafter may be exhausted."
The powers given to the surveyors under the before-
mentioned statutes are not to be wantonly or maliciously
exercised, but only for the necessary purposes of the Act.
In Bayfield v. Porter, 13 East, 209; Bayley, J., said,
"Where there is a subsisting road by which the materials
may be earned, the surveyors are not wantonly to deviate
from that, and to make a new road for the purpose : but
where there was not a convenient road before, the Act
authorizing the getting and taking of the materials in
enclosed lands where they cannot conveniently be gotten
in the open lands of the parish, and the getting them from
another parish where they cannot conveniently be had in
the same parish where the highway to be repaired lies,
authorizes the making of a new road in order to get them
conveniently. It was competent however to the plaintiff
to have shown by evidence that the new road was wantonly
made."
Surveyors cannot justify a trespass under a prescriptive
right or even a custom, to take stones from the waste,
whether adjoining the sea-shore between high and low
water mark or otherwise, for the purpose of repairing the
highways ; but assuming such a prescription to be good, it
ought to be pleaded as an immemorial custom for the in-
habitants of the parish to take stone from the waste, for
the purpose of repairing the highway, averring that the
surveyors were two of the inhabitants, as was done in
Johnson v. Wyard (p). Equity will not interfere till the
right has been decided by a court of law (, 14Gb . Jordan v. (o) 3 & 4 Will. IV. c. 74, sees. 15,
Wiles, Cro. Jac. 332 ; Smallman . 16, 40, 77, 79, 80 ; Slielford's Real
Agborow, Cro. Jac. 417 ; liennio v. Property Stats, edit. 18C3, p. 417.
220 OWNERSHIPS IN MINERALS. [CHAP. xi.
under the Act (p). Other statutes affecting her lands
have also been passed (q) ; she may disclaim any interest in
lands by a deed executed in pursuance of the 8 & 9 Vic.
c. 106, s. 7 ; and in conformity with the before-mentioned
Act of 3 & 4 Will. IV. c. 74, and now by 19 & 20 Vic.
c. 120, she and her husband have acquired a power of dis-
position over her mineral estates, which before, being only
regarded as tenants for life punishable for waste, neither
of them possessed (r). A married woman with the consent
of her husband may obtain a declaration of title under a
recent Act ; and for the purposes of the Act, she is to be
deemed a feme sole of all land which is settled to her
separate use without restraint of alienation (s).
IDIOTS and At common law, an idiot or person of unsound mind
was not bound by any act or deed unless made during a
lucid interval, and if he agreed to purchase an estate, he
might elect, but could not be compelled, to carry out the
contract (f) ; but now the estates of idiots and persons of
unsound mind are vested in their committees (u\ and
placed under the control of the Court of Chancery, by
several Acts of Parliament, which will render all contracts
relating to the interests of those persons, absolutely void,
unless made in conformity with the provisions of those
Acts (u).
^hen The language of Lord Loughborough in Oxenden v.
be worked Compton leads to the inference, that the Court of Chan-
cery will sanction any dealing of the estate of the lunatic,
which may fairly be considered advantageous to those
whose interests are immediately to be affected by it, pro-
vided the act does not amount to speculation ; where, for
instance, as his lordship intimated, there was a colliery
upon the estate, with the coal being worked, but almost
(p) Barrow v. Barrow, 4 Ka. & J. Comb. 468 ; Sugden's Vend. & Pur.
409. vol. ii. p. 208, 14th edit. ; Beaven .
(q) See 11 Geo. IV. & 1 Will. IV. Macdonnell, 9 Ex. 309, 10 Ex. 184.
c. 65 ; 20 & 21 Vic. c. 13. (u) Ex parte Tabbart, 6 Ves. 428.
(r) 19 & 20 Vic. c. 120, ss. 32, 37, (vj 11 Geo. IV. & 1 Will. IV. c. 65 ;
39 ; and post, p. 280. 3 & 4 Will. IV. c. 74, s. 33 ; 13 &
() 25 & 26 Vic. c. 53; c. 67, 14 Vic. c. 60; 16 & 17 Vic. c. 70;
s- 36. 18 & 19 Vic. c. 13 ; 19 & 20 Vic. 120 ;
(0 Co. Litt. 3 b ; Thompson v. Leach, 20 & 21 Vic. c. 13 ; post, p. 283.
CHAP, xi.] IDIOTS-LUNATICS. 221
worn out, it would not be right to incur a considerable
outlay ; but where by sinking lower, and erecting a fire-
engine, coal might be raised at a profit, there the outlay
would be justifiable (tv).
Upon a petition in lunacy it appeared that the lunatic
was tenant for life, without impeachment of waste, re-
mainder to his first and other sons -in-tail, with various
remainders over; the lunatic was unmarried, coal was
found upon the lunatic's estate, but in too small quantities
to justify the sinking a shaft, but it was capable of being
worked by means of a shaft in the adjoining land. Part of
the estate of the lunatic was in mortgage, and the mort-
gagee was in possession, which reduced the income of the
lunatic considerably. There were also other debts without
any fund to answer them. Under these circumstances, the
committee agreed with the owner of the adjoining land
to work the coal ; which the master reported to be for the
benefit of the lunatic. The master was attended by the
next of kin, who were served with notice by direction of
the court. The prayer of the petition was, that the report
might be confirmed, and the Lord Chancellor confirmed
the petition accordingly, alleging two reasons for so doing :
1st, Because the next of kin had an interest in the coal
being worked ; 2nd, Because the heir-at-law had no inte-
rest, there being various remainders over ().
In another case it was referred to the master to inquire, Leases,
whether it would be for the benefit of the lunatic and his
estate, to grant leases of coal mines, or seams of coal, belong-
ing to him (y) ; and when expedient or necessary for the
maintenance of a lunatic, the Committee of the Estate may
now by order of the Lord Chancellor grant a lease of a
mine already opened, and even mines unopened. The
produce of newly-opened mines, while necessary for luna-
tic's maintenance, to be so applied, otherwise to be carried
to a separate account, and be considered real estate (z).
(w~) 2 Ves. 72. (z) 16 & 17 Vic. c. 70, sees. 130,
r) Ex parte Tabbart, 6 Ves. 428. 131, 132 ; also 18 & 19 Vic. c. 13,
(y) Ex parte Percival, Shelford on e. 1.
Lunacy, 2nd edit. pp. 264, 443.
i'J2 OWNERSHIPS IN MINERALS. [CHAP, xi,
Partner- A firm was established to work a mine ; each partner,
lunatic! * after notice, was to be at liberty to sell his share, which
the continuing partners were at liberty to purchase; the
first partner gave notice to sell his share; the second
partner afterwards became a confirmed lunatic; and the
third partner, then purchased the share of the first, and
filed his bill for a dissolution of the partnership ; the com-
mittee of the lunatic then filed a cross-bill, and insisted upon
the clause of pre-emption, and a right to participate in the
purchase ; but it was held, that the partners ought not to
be compelled to carry on business with a lunatic or his
committees ; that the partnership must be dissolved ; that
notice of sale by one partner to the other before his lunacy,
was sufficient to bind his committees, and determine any
right of pre-emption; and that the real value of the
undertaking could only be ascertained by a sale of the
whole, as a " going concern " (a).
BANKRUPTCY.
ASSIGNEES OF BANKRUPTS. Hoio property is vested in the Assignees
under the Bankruptcy Acts, 1849, 1854, 1861 reputed Ownerships
of Shares in a Company order and disposition of the Bankrupt.
When Assignees adopt the Contracts of a Bankrupt. Leases when
covenants not binding settled Estates.
OFFICIAL LIQUIDATORS. The Companies Act, 1862 how property
vests. Leases covenants, when binding.
ESTATES of PRIOR to the recent alterations which were effected in
KUPTS~ *he ^ aws relating to bankrupts, the property of the bank-
rupt generally, passed to the assignees respectively, and now
by the Bankruptcy Acts, 1849, 1854, and 1861, numerous
provisions are made in reference to bankrupts' estates. By
Bank- the Bankruptcy Act, 1849, it is provided that all the free-
hold and copyhold lands, and personal estate of the bank-
rupt, in the bankrupt's possession at the time of his bank-
(a) Rowlands v. Evans, Williams v. Rowlands, 31 L.J. Ch. 265 ; Jur.
N.S. 88.
CHAP. XL] ASSIGNEES OF BANKRUPTS. 223
ruptcy, shall vest in the assignees by virtue of their
appointment without any deed of conveyance (&). And in
case of reputed ownership to chattels not in the possession
of the bankrupt, they are to vest in the assignees by an
order of the court ; these latter provisions are not repealed
by the Bankruptcy Acts, 1854, 1861, or either of them (c),
and will often be found of great service to the creditors of
an estate where the bankrupt has been engaged or con-
cerned in mining pursuits, as it not unfrequently happens
that a bankrupt is entitled to some considerable interest in
mining property, which is neither in his possession nor in
his name, as the legal owner. The 209th section of the
Act relating to copyholds is repealed (d) ; and with respect
to estates in tail, though they do not pass under the ap-
pointment, they are nevertheless to be disposed of in the
manner directed in the Act for the benefit of the credi-
tors (e). The assignees may redeem any property pledged
by the bankrupt which could have been redeemed by the
bankrupt himself (/) ; and the title of the assignee to^the
property sold cannot be impeached on account of any defect
in the bankruptcy proceedings (#).
The Bankruptcy Act, 1854, makes no provision affect- Bank-
ing directly the subject-matter of this work, but by the A^fts^
Bankruptcy Consolidation Act, 1861, it is provided that 1854-1861.
the official assignee, immediately on the adjudication, must
take possession of the bankrupt's estate and retain posses-
sion thereof, till the appointment of a creditors' assignee,
but such possession may be discontinued under the direc-
tion of the court ; and upon the appointment of the credi-
tors' assignee all the estate, both real and personal, of the
(6) 12 & 13 Vic. c. 106, sees. 141, & others, Ass. v. Hall, 28 L.J. Ex.
142, 200, 210; Lushington v. Bol- 257; Acraman& others, Ass. v. Bates,
dero, ISBeav. 418; Plant v. Cotterill, 29 L.J. Q.B. 78.
5 H. & N. 430. (d) See Bankruptcy Act, 1861, sec.
(c) Sees. 125, 127 ; Ex parte Vaux- 114.
hall Cy. 1 Gl. & J. 101 ; Lancaster (e) See sec. 208 ; also 3 & 4 Will.
Canal Co. 1 Dea & C. 411 ; lleslop v, IV. c. 74, sees. 55-73 ; Jervis v. Tay-
Baker, 6 Ex. 740 ; Quartermaine v. leur, 3 B. & Aid. 557 ; Doe d. Spencer
Bittleston, 13 C.B. 133; Graham v. v. Clark, 5 B. & Aid. 458.
Furber, 14 C.B. 134; Hornsby (/) Sec. 149.
v. Miller, 28 L.J. Q.B. 99 ; Reynolds (jr) Sec. 131.
22-i OWNERSHIPS IN MINERALS. [CHAP. XL
bankrupt shall be divested out of the official assignee and
vested in the creditors' assignee (7i). The creditors' assig-
nee must then realise the estate of the bankrupt except
debts not exceeding 10, which must be collected and
recovered by the official assignee (i), and the court may
give special directions for the disposal " for the benefit of
the creditors, of any estate or interest at law or in equity
which, at adjudication or afterwards, before order of dis-
charge, a bankrupt has, in any copyhold or customary land,
and to make an order vesting the land or such estate or
interest as the bankrupt has therein, in such person and
in such manner, as the court shall think fit " (j). " Where
under any settlement or will a bankrupt non-trader shall be
entitled to a life estate in remainder expectant upon the
death or deaths of any previous tenant or tenants for life,
with any remainder over to the bankrupt's issue, or the
heirs of his body, or any of them as purchasers, the life-
estate of such bankrupt non-trader shall not be sold before
it falls into possession, without an express direction of the
court" (&). The assignees must elect whether they will
take and retain possession of property held under leases or
agreements for leases (I) ; they may mortgage or pledge
the bankrupt's property if a majority of three-fourths in
value of the creditors present at a meeting called for the
consideration of that question shall consent (m) ; and upon
the production of a certificate of their appointment they
may apply for and obtain a sequestration of, the profits of
a benefice belonging to a bankrupt clergyman, without any
writ or other proceeding for that purpose being had, or
taken " (n).
Reputed Where shares of a company stand in the name of a
8 lps> bankrupt who was on all occasions the only apparent
owner, and he kept possession of the certificates of the
shares, but the shares belonged to another person, in whose
favour there existed a secret declaration of trust, the shares
(A) 24 & 25 Vic. c. 134, sees. 108, (0 Sec. 131 ; Goodwin v. Noble,
117. 27 L.J. Q.B. 204.
(i) Sees. 127, 128. (m) Sec. 133.
0') Sec. 114. () Sec. 135.
(*) Sec. 115.
CHAP, xi.] ASSIGNEES OF BANKRUPTS. 225
were held to be in the reputed ownership of the bank-
rupt (o) ; but in a subsequent case, a distinction is
drawn between the above-mentioned case and that of a
bankrupt who, prior to bankruptcy, had deposited cer-
tificates of shares in a coal and quarry company as security,
where there was a printed notification on each share-certi-
ficate that no transfer could be made without the consent
of the directors (p). Where a bankrupt pledges shares in
a company which belonged to his wife before marriage,
notice must be given to the company of the deposit, before
bankruptcy, or they will be in the reputed ownership of the
bankrupt (^).
A bankrupt before his bankruptcy deposited certificates Order and
of some shares in a German mining company for securing
a loan of money, with an agreement accompanying the rupt.
deposit, by which he engaged to complete the transfer of
the shares when required. The documents were after-
wards sealed up and entrusted to the bankrupt for safe
keeping, where they remained till about three weeks before
the bankruptcy, when they were reclaimed; and it was
held that the shares were not in the order or disposition of
the bankrupt at the time of his bankruptcy (r-). A trans-
fer of shares in a company was executed by a shareholder,
a blank being left for the name of the trarisferree and for
the date; but before the name of a purchaser could be
inserted in the transfer, the transf error became bankrupt;
and it was held by Vice-Chancellor Stuart, that the
shares were in the order and disposition of the transfer-
ror at the date of his bankruptcy; but upon appeal the
decision was reversed, it being considered that the shares
were not either in the order, disposition, or reputed owner-
ship of the transf error at that time (s).
A became bankrupt, being at the time possessed of Eights of
some shares in an incorporated company, which were stand- assi s nee ; J
execution
(o) Ex parte Watkins, 2 M. & Ay. (?) Ex parte Richardson, 3 Dca. contracts.
348. 49G.
(p) Ex parte Harrison, 3 M. & Ay. (s) Morris v. Cannan, 31 L.J. Ch.
500. 425.
(17) Ex parte Spencer, 3 M. & Ay.
C97.
oof, OWNERSHIPS IN MINERALS. [CHAP. xi.
ing in his name in the company's books. Only 25 had
been paid on each share, leaving 75 more to be paid.
The assignees did not claim the shares till they had risen
in value, when they demanded that their names should be
registered as the owners. This the company refused to do,
and on the case coming before the court in error, it was
contended that the assignees were bound to have done
some act within a reasonable time to testify their accept-
ance of the shares. That question, however, was not de-
cided, but the judges held that in any event, reasonable
time would not begin to run till some other party interested
in the shares had taken some steps respecting them (i).
Leases. The assignees of a bankrupt are not liable, as the as-
signees of a term, unless they have done some act which
unequivocally indicates to the lessor that they have elected
to take the benefit of the lease ; merely carrying on a mine
till a sale can be conveniently held, or the doing of any act
necessary to prevent great loss or irreparable injury, would
not be sufficient, even although a profit to the estate may
have accrued therefrom. It is usual, in leases, for the les-
When co- see to covenant that he will not assign without consent of
nTb^d' ^ ie ^ essor ' sucn a covenant, although binding upon the
upon as- lessee and his assigns, is not binding upon an assignee of a
signees, &c. bankrupt, or an official liquidator of a company ; but where
a lease was granted to a person for twenty-one years, with
a covenant that the lessee would not assign or underlet
without the consent of the lessor, and that in case the les-
see should, by his own act, or by act of law, lose or be
deprived of the possession of the premises without the con-
sent of the lessor, the lessor might re-enter ; and the lessor
was afterwards adjudicated bankrupt, and his assignees
took possession of the demised property, and paid a half-
year's rent, and then advertised the lease for sale ; it was
held that on the acceptance of the rent by the lessor, the
assignees became entitled to the lease by contract with him
and not by operation of law ; consequently they were bound
(0 Graham v. Van Diemen's Land Co. 24 L.J. Ex. 213.
CHAP, xi.] OFFICIAL LIQUIDATORS. 27
by all the covenants and could not sell or underlet without
the lessor's consent (u).
A deed of partnership contained a proviso, that a with-
drawing partner should not be entitled to credit for the
value of the lease of certain mines vested in a trustee for
all the partners, in shares, according to the capital con-
tributed by them respectively, but that the account to be
taken should consist only of his share in the assets of the
partnership other than the value of the lease ; and that in
the event of bankruptcy of any partner, an account should
be taken of his share and interest in the mines, the value of
the lease, which was not to be taken into account, excepted ;
one of the partners having become bankrupt, it was held,
that such a stipulation was a fraud upon the bankrupt
laws, and void as against the assignees in bankruptcy (v).
If a power of sale over a settled estate is given to trus- Settled
tees at the request of a tenant for life, and such tenant estate -
for life afterwards becomes bankrupt, the power is not
thereby extinguished, but may be exercised by the assig-
nees and tenant for life jointly (?#).
By the Companies Act, 1862, the official liquidator to OFFICIAL
be appointed under that Act, is to take into his custody or
under his control all the real and personal property, effects,
and things in action, to which the company is, or appears
to be, entitled, and to sell and transfer the said real and
personal estate, and " heritable and moveable property,"
and to do all acts and execute in the name and on behalf
of the company, all deeds, receipts, and other documents
necessary for effectually vesting the property in the pur-
chaser, and for any of those purposes to use when neces-
sary the company's seal (x). The shares or interest of any
individual member of and in a company is declared to be
personal and not real estate (?/). The official liquidator of
a company will thus often become entitled, ad invitum, to
CM) Dyke v. Taylor, C Jur. N.S. (w) Holdsworth v. Goose, 29 Bcav.
1329. Ill ; s.c. 30 L.J. Ch. 188.
(v) Whitraoro v. Mason, 31 L.J. (x) 25 & 26 Vic. c. 89, sees. 92,
Ch. 433 ; 2 Johns. & H. 204. 94, 95, 101.
(y) Sec. 22.
Q2
228 OWNERSHIPS IN MINERALS. [CHAP. xi.
large mineral possessions ; frequently lie will find a cove-
nant or condition in leases and other instruments restrain-
ing alienation without consent of the grantor, but such a
clause will be as inoperative against him as against an
assignee in bankruptcy, and he will be bound, notwith-
standing such a covenant, to sell the whole of the pro-
perty of the company, regardless of any restriction against
alienation imposed by the grantor or entered into by the
grantee (z).
In pursuance of an arrangement made on behalf of a
company with certain persons to purchase the beneficial
interest in a colliery lease, agreed to be granted to them
for a term of forty years, a lease was granted in March,
1842, to three persons as trustees for the company, for
a period of forty years, at a fixed rent, together with a
royalty ; the lease contained a stipulation enabling the les-
sees, at the end of any period of three years from its
commencement, to determine the lease by giving twelve
months' notice; the company entered into possession in
December, 1841, and remained in such possession until
November, 1842, when the working proving unprofit-
able was abandoned, and never afterwards resumed ; in
January, 1850, the company was dissolved, and its affairs
ordered to be wound up under the provisions of the
winding up Acts; the lessor became bankrupt in Au-
gust, 1853, but some time prior to his bankruptcy, his
interest in the mine became vested in the plaintiff. In
May, 1852, the official manager of the company, under
protest that the lease was not binding on the com-
pany, gave notice to terminate the lease on the 31st
May following, when one of the triennial periods expired,
and on the 23rd February, 1853, the plaintiff filed his bill
against the official manager, alleging that the company had
accepted the lease and was bound thereby, and praying
that the official manager might be ordered to pay the
arrears of the stipulated rent since March, 1842, together
with compensation for all breaches of covenant ; but it was
(z) Wliitmore v. Mason, ante, p. 227.
CHAP, xi.] OFFICIAL LIQUIDATORS. 229
held, that no relief in the nature of specific performance,
nor any equitable relief, could be granted either against the
persons to Avhom the demise was made, or against the com-
pany in respect of their occupation, the rights of the plain-
tiff, if any, being legal. The relation between the occu-
piers and the lessee, as cestui que trust and trustee, cannot
give any equitable right to the lessor, who claims by a title
paramount (a).
MORTGAGED PROPERTY.
MORTGAGEES. Mortgagee in fee in possession Ids right to search for
and work Minerals Consequences. Receiver. Accounts and In-
quiries taken and directed by the Court of Chancery Statute of Limi-
tation. Foreclosure and Redemption Suits. Mortgagees' liability to
Strangers for acts of Mortgagors. When Mortgagee will be considered
to have adopted the agreements of Moi'tgagor. Leases by Mortgagees
Mortgagor.
A MORTGAGEE in fee in possession, being regarded at Mortgagee
law as the absolute owner of the inheritance, may explore ^ may
and take minerals from the mortgaged lands, as well as mmes.
continue the search after minerals in mines already opened,
but equity will restrain him from opening new mines until
foreclosure, on the ground of committing waste (6).
If a mortgagee in possession, having an insufficient secu-
rity, open mines or quarries on the mortgaged estate, and
works them without having had an authority given to him
by the mortgagor for that purpose, he will be charged with
the profits and disallowed his expenses in case of loss (c),
but if his security is sufficient, and he opens mines under
similar circumstances, he will be charged with his receipts,
but disallowed his expenses, whether the mine prove pro-
fitable or not, as he has no right to speculate with the pro-
(a) Walters v. Northern Coal Hardy v. Reeves, 4 Ves. 480 ; Sandon
Mining Co. 5 De G. Mac. & G. v. Hooper, 6 Beav. 249.
629 ; 2 Jur. N.S. 1 ; 25 L.J. Ch. (c) Withrington v. Banks, Sel. Ca.
633. Ch. 30; Millett v. Davey, 32, L.J. Ch.
(6) Farrant v. Level, 3 Atk. 723 ; 122.
230
OWNERSHIPS IN MINERALS.
[CHAP. xi.
perty (d). If a mortgagee comes into possession of open
mines he is not bound to work them, but if he does, he need
not lay out or advance more than a prudent owner, and he
cannot be charged with mismanagement, on the ground of
having omitted to make the necessary advances for effec-
tually exploring the mines (e) ; but he may, it would seem,
be held responsible for unnecessary expenses, or for wilful
neglect, and he is bound to prevent the premises from fall-
ing into decay (/).
Receiver. A receiver or manager of mines will be appointed at the
instance of one of several part owners ; because a mine is
regarded as a species of trade (
remaining due on their mortgage, coupled with a refusal to
furnish an account to the mortgagors, except on being paid
the expenses of so doing, does not amount to such vexatious
conduct on the part of the mortgagees, as to induce the
court to deprive them of their costs of a redemption suit,
and, on their appealing from a decree disallowing such
costs, they were declared to be entitled, not only to such
costs, but to their costs of appeal (&).
Where a trespass was committed on the plaintiffs' mine, \y n en
and an air-course, and level roads, made through it under- mortgagee
, , j. . . . . .... liable to
ground, to connect adjoining collieries, and large quantities strangers,
of the defendants' coals thereby fraudulently gotten and for acts of
removed without their knowledge, it was held, first that
the mortgagees could not be made accountable for any
portion removed by their mortgagor while they allowed him
to remain in possession, notwithstanding that the proceeds
of the coal, so wrongfully removed by him, had found
their way, week by week, but without notice of the fraud,
into the mortgagees' hands, and notwithstanding that they
continued the use of the air-course, and roads, after taking
possession, and retained in their employment as manager of
the collieries the person by whose agency the fraud had
(t) Hood v. Easton, 2 Giff. 692 ; (fc) Norton v. Cooper, 5 De G.
2 Jur. N.S. 729, 917. Mac. & G. 728.
0') Millett v. Davey, 32 L.J. Ch.
122.
232
OWNERSHIPS IN MINERALS.
[CHAP. xi.
Adopting
gagor.
Granting
been perpetrated. Secondly, that the court had no juris-
diction to give the plaintiffs compensation in respect of
consequential injury, by reason of large portions of their
coal being rendered unworkable and useless to them.
Thirdly, that the mortgagees could not be allowed to
retain the use of the air-course or roads, although the con-
tinuance of that user might be no special injury to the
plaintiffs. Fourthly, that not having themselves made
such apertures, they could not be ordered to fill them up.
Fifthly, that all the proceeds having been traced to the
mortgagees, and no portion retained by the agent, the
latter could not in a court of equity be made personally
chargeable for the value of the coal removed, notwith-
standing his own fraudulent conduct in the transaction.
A decree was made accordingly, and for an account against
the mortgagor and mortgagees, and as to the allowance to
be made to the defendants in respect of the coal for which
they were held accountable (7).
An Act of Parliament authorized the lessees of mines to
ma ^ e a railroad to a canal through the intervening lands,
on making compensation ; the lessees entered into an agree-
ment with a mortgagor in possession for making the rail-
road and paying an annual rent to him ; the mortgagee
afterwards entered into possession, and received the rent on
several occasions ; held that the mortgagee and those claim-
ing under him were bound by the agreement (m).
In the absence of a power reserved by a mortgagor, or
given to a mortgagee, both must concur in a lease of the
minerals ; but a mortgagor may grant a lease of his equity
of redemption (n), and a mortgagee, to prevent an appa-
rent loss, or under other circumstances of absolute neces-
sity, will have the sanction of a court of equity to grant
leases (o). And now, by the 23 & 24 Viet. c. 145, there
is, under some circumstances, an implied power in every
(0 Powell v. Aiken, 4 Kay & J. (ra) Omelaughland v. Hood, 1 Rol
343. ab. 874-6.
(m) Mold v. Wheatcroft, 27 Beav. (o) Hungerford v. Clay, 9 Mod. 1 5
610. Lucam v. Mertins, 1 Wils. 34.
CHAP, xi.] MORTGAGEES. 233
mortgagee to sell the whole or any part of the mortgaged
premises, and to have a receiver appointed, unless the deed
contains an express declaration to the contrary (j?). If the
mortgagor grants a lease after executing the mortgage, the
mortgagee, without notice, may evict the lessee, and bring
an action for mesne profits (q) ; or if the mortgagee ac-
knowledges the lease, the lessee will be justified, on notice,
in paying the rent to the mortgagee (r).
)
)
(r) Pope v. Biggs, 9 B. &
Doe d. Roby v. Maisey, 8 B. 245.
& C. 767 ; Doe d. Fisher v. Giles, 5
Bing. 421.
OWNERSHIPS IN MINERALS.
[C'HAP. XH.
CHAPTER XII.
OWNERSHIPS IN MINES, MINERALS, AND QUARRIES.
CORPORATIONS.
ECCLESIASTICAL.
ELEEMOSYNARY.
MUNICIPAL.
Right to
work
mines.
ECCLESIASTICAL CORPORATIONS.
(AGGREGATE AND SOLE.)
Right to work Mines Prescriptive Right. Powers of Alienation Enabling and
Restraining Statutes, 32 Hen. VIII. c. 28 ; 1 Eliz. c. 19 ; 1 James, c. 3 ; 13
Eliz. c. 1018 Eliz. c. 11 ; 39 # 40 Geo. HI. c. 41. Concurrent Leases.
6 $ 7 Will. IV. cc. 20, 64; 5 Vic. c. 27 (sess. 2); 5 ^ 6 Vic. c. 108;
Mining Leases Leases of Water, Way-leaves, and other Easements Sur-
render of existing Leases Consents Premiums Ecclesiastical Commissioners.
14 ^ 15 Vic. c. 104; 21 cj- 22 Vic. c. 57; 23 24 Fie. c. 124; 24 fr 25
Fie. c. 105 ; 25 $ 2G Fie. c. 52. Leases by Incumbents consents generally.
IRELAND. Mining Leases Enquiries as to Mines before Conveyance in Fee
Rent on Mines profitably worked.
ECCLESIASTICAL corporations aggregate had at common
law an absolute estate in fee-simple of all lands held in
their corporate capacity; by virtue of which they might
open new mines, or work old ones at pleasure (a) ; corpo-
rations sole, on the other hand, were more in the position
of ordinary tenants for life, which only enabled them to
work old mines, but not to open new ones without consent
of their superiors and the patron (b) ; and it is doubtful
(a) Co. Litt. 44 a ; Bishop of Lon-
don v. Web. 1 P. Wins. 527 ; Bishop
of Winchester v. Knight, 1 P. Wins.
406 ; 2 Bl. Com. 318 ; Duke of Marl-
borough v. St. John, 5 De G. & S. 179.
(6) Knight v. Moseley, Amb. 17C ;
Duke of St. Albans v. Skipwith, 8
Beav. 354; Huntley v. Russell, 18
L.J.Q.B. 239; Duke of Marlborough
v. St. John, 5 De G. & S. 179.
CHAP, xn.] ECCLESIASTICAL CORPORATIONS. 235
whether they can now do so, without also obtaining the
consent of the Ecclesiastical Commissioners (c). Recently,
the authority of the bishop or the incumbent, even with
such consents as aforesaid, to open new mines, has been
called in question ; but in the case of the Duke of Marl-
borough v. St. John, Vice-Chancellor Parker held, that
the incumbent, with the consent of the patron and ordinary,
could at common law make a complete alienation of the
living, or commit waste by the felling of timber (d) ; and
Vice-Chancellor Wood adopting that opinion, has since
said that " the principle would go a considerable way to
the opening of mines, because, in either one case or the
other, it is an alienation of the inheritance (e)"
A prescriptive right to work mines may, it would seem, Prescrip-
also be acquired in lands belonging to the church ; but tive ri s ht -
where coals had, at different times since 1756, been gotten
from the glebe lands with the consent of the vicars, for
the time being, by persons working the adjoining collieries,
the working being conducted solely by underground pas-
sages from the adjoining collieries, without entering upon
or interfering with the surface of the glebe ; it was held
that no presumption could be drawn from these facts, that
thefe had formerly been a grant authorizing the vicars to
open mines (/) ; and consequently, that a prescriptive title
to do so had not been established.
Eventually, several enabling as well as disabling statutes Statutory
were passed, which materially altered the rights of all animation.
ecclesiastical persons holding the possessions of the church.
By 32 Henry VIII. c. 28 (#), eveiy ecclesiastical corpo- Enabling
ration, aggregate or sole, who was seized in fee, except statutcs -
parsons or vicars, might grant leases by deed for the term
of twenty-one years, or for three lives, on condition that
the accustomed rent at least should be reserved, and that
the lease should not be without impeachment of waste;
(c) Holden v. Weekes, 30 L.J. Ch. (/) Bartlett v. Phillips, 4 De G.
35 ; post, p. 246. & J. 414.
(^) 5 L)e Gex & Sm. 174 ; B.C. (#) Repealed except as to Church
21 L.J. Ch. 381. property 19 & 20 Vic. c. 120, sec.
(e) Holden v. Weekes, 30 L.J. Ch. 35.
35.
236 OWNERSHIPS IN MINERALS. [CHAP. xir.
and such lease required no confirmation by the crown or
patron ; it is doubtful whether the statute applies to copy-
Restraining hold lands (7t). By 1 Elizabeth, c. 19, and 1 James, c. 3,
all alienations, assurances, gifts, grants, feoffments, leases,
fines, charges, or other conveyances, or estates, to be had,
made, done, or suffered by any archbishop or bishop, of any
of their possessions, other than for the term of twenty-one
years, or three lives ; and, unless the old accustomed yearly
rent, or more, should be reserved, are declared void to all
intents and purposes ; by the 13 Elizabeth, c. 10, parsons
and vicars, and other holders of spiritual livings, are placed
upon the same footing as archbishops and bishops, so as to
make their alienation also void if they exceed the term or
period above mentioned. Leases granted under these
restraining statutes, did not bind the successors without
confirmation, where confirmation was before necessary (i) ;
but such leases were nevertheless good, during the life
of the lessor (y), and may be confirmed by his suc-
cessor (). Mere acceptance of rent reserved under a
lease, by the successor, will only create a tenancy from
year to year ; which may be determined at any time, by a
regular notice to quit (1). And if a lease was made with-
out the consent of the patron paramount, no confirmation
of such lease by the immediate patron, or by a successor of
the lessor, will remedy the want of a previous consent (rn).
By 39 & 40 Geo. III. c. 41, the before-mentioned Acts
of 32 Henry VIII., and the 1st and 13th of Elizabeth, are
explained arid amended, so far as relates to the power of
the persons enabled by those acts to grant leases, to join
together in one lease lands not usually let together, or to
divide lands usually leased together. The Statutes of
Elizabeth and George are silent upon the subject of waste ;
but, whether the equity of those statutes restrain the
(K) Rowden v. Maltster, Cro. Car. Pennington v. Cardale, 3 H. & N.
44. 666.
(i) Co. Litt. 44 b . (I) Doe d. Brammall v. Collinge,
(/) Doe d. Bryan v. Bancks, 4 B. 7 C.B. 960.
& Aid. 407. (rn) Doe d. Brainmall v. Collinge,
(fc) Edwards v. Dick, 4 B. & Aid. supra.
217 ; Doe v. Taniere, 12 Q.B. 998 ;
CHAP, xii.] ECCLESIASTICAL CORPORATIONS. 237
granting of leases of mines and quarries not previously
worked or opened, and consequently from committing
waste, is open to doubt (n).
The before-mentioned statutes are also silent on the Concurrent
power of ecclesiastical persons to grant concurrent leases, leases -
and also new leases, before the expiration of the old ones ;
but concurrent leases under the statute of 13th Elizabeth,
c. 10, have been since prohibited, except under certain
circumstances, by the 18th Elizabeth, c. 11 (o). The
statute of 1st Elizabeth, c. 19, had been previously decided
not to prohibit the granting of concurrent leases, except
leases in reversion (p). But the whole subject of granting
concurrent leases, and also new leases before the expiration
of the old ones, whether under the statutes of Elizabeth, or
any other power, has undergone revision by the statutes
6 & 7 Will. IV. cc. 20, 64. * By the statute 6 & 7 Will.
IV. c. 20, it is provided that "no archbishop or bishop,
ecclesiastical corporation, sole or aggregate or other spiri-
tual person, shall grant any new lease, by way of renewal
of any lease, which shall have been previously granted
of the same for two or more lives, until one or more of
the persons for whose lives such lease shall have been so
made shall die ; and then only for the- surviving life or
lives, and for such new life or lives as, together with the
life or lives of such survivor or survivors, shall make up the
number of lives, not exceeding three in the whole, for
which such lease shall have been so made as aforesaid ;
and that where any such lease shall have been granted for
forty years, such archbishop, bishop, ecclesiastical corpo-
ration, sole or aggregate, or other spiritual person, is
prohibited from granting any lease, by way of renewal of
the same, until fourteen years of such lease shall have
expired; and that where any such lease shall have been
made as aforesaid for thirty years, no grant can be made
of any new lease, by way of renewal of the same, until ten
() Dean and Chap, of Worcester, (?') Foxr. Collyer, And. G5; Lepur
G Rep. 37 ; Doe d. Brammall v. Col- v. Wroth, 1 Leon. 35 ; Grindall's case,
linge, 7 C.B. 960 ; Holden v. Weekes, 4 Leon. 78 ; Bridg. by Ban. 136.
30 L.J. Ch. 35. But see also Co. Litt. 44 b ; 5 Co. 2 ;
(o) Moor, 875 ; Co. Litt. 45 b ; 2 Moor. 253 ; 1 Leon. 69 ; Cro. Eliz.
Brownl. 134, 141, 164. 141.
238 OWNERSHIPS IN MINERALS. [ctiAr. xn.
years of each lease shall have expired ; and where any such
lease shall have been granted for twenty-one years, no
grant of any new lease can be made, by way of renewal of
the same, concurrently therewith, until seven years of such
lease shall have expired ; and that where any such lease
shall have been granted for years, no grant can be made
of any lease by way of renewal of the same or otherwise,
for any life or lives." By the said Act, certain other
leases, upon different terms and for shorter periods than
those above mentioned, may be granted, and exchanges also
may be thereby effected under certain conditions (q).
Mining During the reign of Her present Majesty (Victoria)
several Acts of Parliament have been passed, under and by
virtue of which ecclesiastical corporations, aggregate and
sole, are enabled to grant leases for long terms of years,
and special provisions are inserted respecting mines and
mining leases. By 5 Vic. (sess. 2), c. 27, entitled " An
Act for enabling Incumbents of Ecclesiastical Benefices to
demise the Lands belonging to their Benefices on farming
Leases," all mines and minerals, by section 1, are to be re-
served out of such leases. This Act does not repeal the
before-mentioned statute 13 Elizabeth, c. 10 ; and there-
fore a rector may demise his glebe under the statute of
Elizabeth, in manner pointed out by that statute, notwith-
standing the subsequent statute of Victoria (V). By 5 & 6
Vic. c. 108, entitled "An Act for enabling Ecclesiastical
Corporations, aggregate and sole, to grant Leases for long
terms of years," power is given to grant mining leases for
any term not exceeding sixty years. By section 6 it is
enacted " that it shall be lawful for any ecclesiastical cor-
poration, aggregate or sole (with some unimportant excep-
tions), from time to time, with the consent or consents
hereby required, to grant or demise by lease, for any term
not exceeding sixty years, to take effect in possession, and
not in reversion or by way of future interest, any mines,
minerals, quarries, or beds belonging to such corporation,
(?) See 4 Geo. II. c. 28, a. 6, aa to (r) Jenkins v. Green, 28 Beav
renewal without surrender of under- 87.
I'M- ">.
CHAP. XH.] ECCLESIASTICAL CORPORATIONS. 239
together with the right of working or of opening and work-
ing the same, and of working any adjacent mine, by way
of outstroke or other underground communication, and
together also with such portion of land belonging to such
corporation, and all such rights and liberties of way and
passage, and other rights, easements, and facilities for the
opening and working of all such mines, minerals, quarries,
or beds, and leading and carrying away the produce
thereof, or otherwise incident to mining operations, as shall
be deemed expedient ; and every such lease shall contain
such reservations by way of rent, royalty, or share of the
produce in kind, all or any thereof, or otherwise, and such
powers, provisoes, restrictions, and covenants, as shall be
approved by the Ecclesiastical Commissioners for England,
due regard being had to the custom of the country or dis-
trict within which such mines, minerals, quarries, or beds
are situate ; and no fine, premium, or foregift, nor any
thing in the nature thereof, shall be taken for or in respect
of any such lease."
By section 4 it is enacted " that it shall be lawful for Leases of
any ecclesiastical corporation, aggregate or sole, except as water >
* .,/. . . p f T n. way leaves,
aroresaid, from time to time after the passing of this Act, and other
with such consent and under such restrictions as are here- easements -
inafter mentioned, by any deed or deeds duly executed, to
grant by way of lease, unto any person or persons whomso-
ever, any liberties, licenses, powers, or authorities to have,
use, or take, either in common with or to the exclusion of
any other person or persons, all or any of the water flow-
ing, or which shall or may flow, or be made to flow, in,
through, upon, or over, any lands or hereditaments belong-
ing to such corporation, in his or their corporate capacity,
or any part or parts thereof (except as hereinafter is men-
tioned), and also any way-leaves or water-leaves, canals,
watercourses, tramroads, railways, and other ways, paths,
or passages, either subterraneous or over the surface of any
lands, store-yards, wharfs, or other like easements or privi-
leges in, upon, out of, or over any part or parts of the
lands belonging to such corporation, in his or their corpo-
rate capacity (except as hereinafter is mentioned), for any
240 OWNERSHIPS IN MINERALS. [CHAP. xn.
term or number of years not exceeding sixty years, to take
effect in possession, and not in reversion, or by way of
future interest, so as there be reserved on every such grant
by way of lease as last aforesaid, payable half-yearly or
oftener, during the continuance of the term of years
thereby created, the best yearly rent or rents, either in the
shape of a stated or fixed sum of money, or by way of toll
or otherwise, that can be reasonably had or gotten for the
same, without taking any fine, premium, or foregift, or
any thing in the nature of a fine, premium, or foregift, for
the making thereof (other than any provision or provisions
which it may be deemed expedient to insert in any such
grant, rendering it obligatory on the grantee or lessee, or
grantees or lessees, to repair or contribute to the repair of
any roads or ways, or to keep open or otherwise use in any
specified manner, any water or water-course to be com-
prised in or affected by any such grant or lease) ; and so
as there be contained in every such grant by way of lease
as last aforesaid a condition or power of re-entry, or a
power to make void the same, in case the rent thereby
reserved or made payable, or any part thereof, shall not be
paid within some reasonable time to be therein specified in
that behalf; and so as the respective grantees or lessees do
execute counterparts of the respective grants or leases, and
generally that in and by each or any such grant by way of
lease as last aforesaid there shall or may be reserved and
contained any other reservations, covenants, agreements,
provisoes, or stipulations whatsoever, not inconsistent with
those hereby required to be reserved or contained, in each
such grant, by way of lease, which it shall be deemed ex-
pedient to introduce therein."
Surrender Existing leases of mines, minerals, and quarries may be
leases 8 *"^ surren( lered and new leases granted in lieu thereof, but it
is not necessary before granting leases under the Act to
surrender under-leases (s).
Consents By section 21 the consent of each person, whose consent
leases. j s requi^ by t k e sa ^ Act to be given to any deed, must
be testified, by such person being made a party to such
GO 5 & 6 Vic. c. 108, sees. 16 & 17.
CHAP, xii.] ECCLESIASTICAL CORPORATIONS. 241
deed, and duly executing the same ; the 23rd section refers
to the amount to be obtained when the Duke of Cornwall
is interested; the 24, 25, and 26 sections to the case of
persons who are incapacitated or under disabilities; the
27, 28, and 29 sections to ecclesiastical corporations. And
by section 20 it is provided " that each lease or grant to be
made or granted under the provisions of the Act shall be
made with the consent of the said Ecclesiastical Com- Ecclesias-
missioners for England, and also with such further con- tl( : al ^ ~
sent as hereinafter mentioned ; (that is to say) each lease
or grant granted or made by any incumbent of a benefice
with the consent of the patron thereof; and each lease or
grant by any corporation, either aggregate or sole, under
the provisions of this Act, of any lands or houses, mines,
minerals, quarries, or beds, of copyhold or customary
tenure, or of any watercourses, ways, or easements in,
upon, over, or under any such lands, where the copyhold
or customary tenant thereof is not authorized to grant or
make leases or grants, for the term of years intended to be
created by such lease or grant, without the license of the
lord of the manor ; shall be made with the consent of the
lord for the time being of the manor of which the same
lands or houses, mines, minerals, quarries, or beds shall be
holden, in addition to the other consents hereby made
requisite to the validity of such lease or grant; and such
consent when given amounts to a valid license to lease or
grant the same lands or houses, mines, minerals, quarries,
or beds, watercourses, ways, or easements (as the case may
be), for the time for which the same shall be expressed to
be demised or granted by such lease or grant."
Section 30 enacts "that if, in the case of any lease, Premiums,
grant, or confirmation granted or made under this Act,
any fine, premium, or foregift, or anything in the nature
thereof, shall directly or indirectly have been paid or given
by or on behalf of the lessee or grantee, and taken or
received by the lessor or grantor, such lease, grant, or con-
firmation shall be absolutely void ;" but by the 1st section
of 21 & 22 Viet. c. 57 Ecclesiastical Corporations are
empowered to grant mining leases, in consideration, or
B
o;j OWNERSHIPS IN MINERALS. \cn\r. xn.
]);u-tlv in consideration, of premiums, or no premiums, and
ii|)on such other terms as the Ecclesiastical Commissioners
may approve.
Hy .1-1 & 15 Vic. c. 104, s. 9, entitled "An Act to facili-
ticai Com- t t t j Management and Improvement of Episcopal and
missioned. . r . * -
Capitular Estates in England, any ecclesiastical corpora-
tion, with the approval of the Church Estate Commission-
ers, may grant mining leases of any lands purchased or
acquired under that Act, for such considerations, upon such
terms, and generally in such manner, as such commis-
sioners, under the circumstances of the case, may think fit ;
and such commissioners may require that any portion of
the rent received on such lease shall be invested and dis-
posed of in the manner specified in the said Act. By
section 2, provision is made for apportionment of rent on
surrender of part of the lands comprised in any lease under
the Act; and by section 2 of 17 & 18 Vic. c. 116, the
above provision for apportionment of rent is extended to
sales, exchanges, or enfranchisements ; and further provi-
sion has been made in reference thereto by the 28th section
of 23 & 24 Vic. c. 124. The Act is limited to three
years (<), but has since been continued till the end of the
session of Parliament next after the 1st January, 1863 (u).
21 & 22 By the 21 & 22 Vic. c. 57. the before-mentioned Act of
V* K7
5 & 6 Vic. c. 108 is amended ; and mining leases may be
granted as before stated in consideration of a premium, and
otherwise, as therein provided for ; by section 2, provision
is made for the application of all monies received by way
of premium, rents, or royalties ; and by section 3^for rais-
ing money to be paid for equality of exchange or partition ;
Contracts and by section 4 it is provided that " For all or any of
renders. such purposes as aforesaid, it shall be lawful for every
such ecclesiastical corporation, with such approval and
consents as aforesaid, from time to time to enter into,
make, and execute such contracts and agreements, and to
(0 17 & 18 Vic. c. 116, 19 & 20 () The meaning of Ecclesiastical
Vic. c. 74; 20 & 21 Vic. c. 74 & 24 Corporation is denned by section 11,
6 25 Vic. c. 131. The estates of the and by section 3 of 24 & 25 Vic. c.
Archdeaconry of Rochester are vested 105, the said expression is extended,
in the Ecclesiastical Commissioners by so as to include any rector, vicar,
this last statute. perpetual curate, or incumbent.
CHAP, xii.] ECCLESIASTICAL CORPOliATIONS. 243
grant such licences or permissions to search for mines, and
such other powers preliminary to or consequent upon any
such contract, and also to alter, vary, or rescind the same,
and accept surrenders of any lease or leases, and release
any lessee or lessees in respect of breaches of covenant, in
such manner and for such considerations as to the said
commissioners shall appear advisable ; and the lands, with
respect to which any contract shall be abandoned, or sur-
render taken, shall be subject to all the powers and provi-
sions of the said recited Act and of this Act ; and all con-
tracts and agreements so entered into by any person as
aforesaid in his corporate capacity shall be binding upon
his successors, and may be enforced against them."
And in cases of sales of any portion of property comprised
in a lease, the rent is to be apportioned (section 8), and
by section 9 it is provided that " No lease of any lands pur- NO lease to
chased or acquired, or in which the estate or interest of a be g rant f d
* ' except at
lessee, or of a holder of copyhold or customary land, shall rackrent.
be purchased or acquired by any ecclesiastical corporation
under this Act, shall (except under the express power con-
tained in the said Act of the 5th & 6th Vic. or in this
Act) be made or granted otherwise than from year to
year, or for a term of years in possession, not exceeding
fourteen years, at the best annual rent that can be reason-
ably gotten, without fine, and the lessee not to be made
dispunishable for waste or exempted from liability in re-
spect of waste."
By 23 & 24 Vic. c. 124, s. 2, the lands of the see of any
archbishop or bishop of England are to be vested in the Ec-
clesiastical Commissioners on the next avoidance ; by section
22, " The said Ecclesiastical Commissioners, or any eccle- HOW to es-
siastical corporation, aggregate or sole, in carrying out the tll ^ ate * he
powers of leasing mines and minerals vested in them, shall mining
in the granting to the lessees of mines and minerals holden leases -
of the Ecclesiastical Commissioners or any ecclesiastical cor-
poration, aggregate or sole, whether for years or for lives,
an extended term or estate therein, and fixing the terms of
such grant, have regard to the value of the estate and
interest of the lessees of all such mines and minerals under
R2
214 OWNERSHIPS IN MINERALS. [CHAP. xii.
any lease or leases heretofore ordinarily renewable on the
payment of a fine, and shall as a rule, in computing such
value, estimate and include an extension of the existing
uiu'xpired term or estate of the lessees to the llth day of
October, 1884, at the accustomed rate of fine ; and in the
case of such of the said leases for lives as, according to the
expectancy of human life, according to the life tables which
are appended to the twelfth annual report of the registrar-
general of births, deaths, and marriages in England, would
not determine until after the said llth day of October,
1884, shall have regard to the actual value of the estate
and interest of the lessees."
Differences " In case any such lessee shall require any extended
to be re- term in such mines and minerals to be granted to them,
arbitration, and any difference shall arise between the said Ecclesiasti-
cal Commissioners or other ecclesiastical corporation and
such lessees thereupon, or as to the value so to be estimated,
or as to the rents to be reserved, or the term of years to be
granted, or other the terms and conditions on which such
lease for any extended term or estate shall be granted,
either party may require the other party to join in refer-
ring to arbitration the matter or matters so in difference,
and the same shall be referred to arbitration." Other ques-
tions arising under that and some of the previous Acts
may also be referred to arbitration in the manner pointed
out in the Act (u).
24 & 25 By 24 & 25 Vic. c. 105, it is provided that it shall not
Vic. c. lOo. k e j aw f u i f or an y prebendary of any prebend not being a
prebend of any cathedral, or collegiate church, rector,
vicar, perpetual curate, or incumbent, who after the pass-
ing of that Act might become possessed of or entitled to
any manors, lands, tenements, or hereditaments belonging
to any ecclesiastical benefice in England, to make any grant
by copy of court roll or lease, in consideration of any fine,
premium, or foregift, but the same may, by any rector,
vicar, perpetual curate, or incumbent, appointed after the
passing of the Act, be leased, sold, exchanged, enfranchised,
or disposed of under the provisions of the before-mentioned
(t>) 23 & 24 Vic. c. 124, sees. 23, 24, 25, 33, 41.
CHAP, xii.] ECCLESIASTICAL CORPORATIONS. 245
Acts of 5 & 6 Vic. c. 27 ; 5 & 6 Vic. c. 108 ; 21 & 22
Vic. c. 57.
Notwithstanding anything contained within the llth Rectors
section of the 14 & 15 Vic. c. 104, any rector, vicar, per- same
' J 11 powers of
petual curate, or incumbent, shall have such and the same sale as ec-
powers of sale, exchange, and enfranchisement as are po- clesiastlcal
m ' . corpora-
sessed by any ecclesiastical corporation, sole or aggregate, tions.
under any Act now in force ; and the provisions of the 23
& 24 Vic. c. 124 are, so far as the same relate to powers
for the raising or application of money by trustees, allow-
ances to lessees, arbitration, valuation, rate of interest, ap-
portionment of rent, and substitution of titles on exchange,
be applied, mutatis mutandis, to sales, exchanges, or enfran-
chisements of any manors, lands, tenements, or heredita-
ments in this Act comprised ; but the proceeds of any such
sales or enfranchisements, and any monies received by way
of equality of exchange, shall be applied according to the
provisions in that behalf contained in the said Acts 5 & 6
Vic. c. 108, and 21 & 22 Vic. c. 57.
By the 25 & 26 Vic. c. 52, it is provided that the pro- 25 & 26
hibition to make any grant by copy of court roll or lease Vic> c> 52-
contained in the first section of the 24 & 25 Vic. c. 108
shall not only extend to grants of the said manors, lands,
tenements, and hereditaments made in consideration of any
fine, premium, or foregift, but shall also extend to all
grants or leases of such manors, lands, tenements, and
hereditaments made for any longer term, or in any other
way than according to the provisions of the several statutes
mentioned in the said first section and in the third section
of the said Act (w). The prebendary of any prebend, not
being a prebend of any cathedral or collegiate church,
shall have such and the same powers of sale, exchange, and
enfranchisement as by the third section of the said Act are
given to rectors, vicars, perpetual curates, and incumbents ;
and the provisions and enactments contained in the said
third section shall apply to sales, exchanges, and enfran-
chisements made by any such prebendary, and to the pro-
ceeds thereof (#). Notwithstanding the before-mentioned
(w) Sec. 1. (*) Sec. 2.
mines.
216 OWNERSHIPS IN MINERALS. [CHAP. xn.
Leases Acts, the power of an incumbent of a living, and even of all
bontM* 1 " ecclesiastical corporations sole, to grant a lease to open new
open new mines has recently been questioned. The earliest authority
on the subject is the case of the Dean and Chapter of Wor-
cester (?/), where it was held by the court that the making
of a lease, without impeachment of waste, by an ecclesiastical
body, was within the equity of the restraining statutes of
Elizabeth. So far an opinion seems to have been pronounced.
Then, in the Countess of Rutland's case (z), (the report of
which, both in Levinz and Siderfin, is meagre and unsatis-
factory) ; a prohibition being moved for against the open-
ing of mines, the court doubted " about the prohibition,"
because, they said, " if so, the mines could never be opened
at all." On looking through all the subsequent autho-
rities, it seems clear, beyond dispute, that the incumbent
cannot open mines without the concurrence of the patron
and ordinary ; and it is also clear and beyond dispute, that
the patron is the proper person to institute a suit with
reference to the opening of mines, and the only person
who can properly interfere, unless it be the ordinary who
may interfere to prevent collusion between the patron and
the incumbent (a). In Bartlett v. Phillips (&) it was not
by any means concluded that it was not in the power of
the patron and ordinary to grant the lease. On the con-
trary, Lord Justice Knight Bruce very carefully guards
himself against any such inference. The sole question
there was, whether any such concurrence could be pre-
sumed to have taken place at all, and not simply whether
it could be presumed to have taken place anterior to the
restraining statutes ; and Lord Justice Knight Bruce
says, " The present vicar's claim is not supported by any
grant, instrument, or documentary evidence, existing or
proved to have existed, nor has any consent or acquiescence
on the part of the present or any former patron, or the
present or any former ordinary, been shown ;" clearly im-
plying that he had not made up his mind that such a consent
(y) 6 Co. 37. (a) Knight v. Moseley, Amb. 176.
(z) 1 Lev. 107. (6) 4 De G. & J. 414.
CHAP, xii.] ECCLESIASTICAL CORPORATIONS. 217
would not have been of importance,^ proved. Moreover,
the Ecclesiastical Commissioners have power to grant leases
to open new mines upon certain terms and conditions, pro-
vided that they do not prejudice any power, under any ex-
isting right or authority ; which indicates a doubt, to say
the least of it, whether there were not other ways and
means by which such leases might have been previously
granted. In the recent case of Holden v. Weekes the
ancient authorities were reviewed, but no decided opinion
was expressed by the court ; Vice-Chancellor Wood was,
however, rather in favour of such leases being granted
with the consent of the proper parties. The result of
these decisions and authorities would seem to be that the
incumbent, a fortiori, the bishop or other superior corpora-
tion sole, with the proper consents, may grant leases to open
new mines, and the author inclines to the opinion that the
sanction of the Ecclesiastical Commissioners is only neces-
sary to such leases when made in pursuance of the before-
mentioned Acts of Victoria.
Subject to those Acts, and indeed in some instances, in Consents
pursuance of them, leases by corporations aggregate, such fixation
as those by the dean and chapter, may be granted without of, leases
confirmation ; but grants, whether leases or otherwise, by
corporations sole, such as archbishops, bishops, deans, arch-
deacons, prebendaries, parsons, vicars, or perpetual curates,
require confirmation by other persons, in order to render
.such leases binding on their successors (c) ; for instance,
the lease of an archbishop or bishop generally requires the
confirmation of the dean and chapter of the diocese ().
Whenever any injury is done to the inheritance, it is de-
structive waste ; or if the thing done only causes a change
in the nature of the property, as by converting a furze-
brake where game have bred, into arable or pasture, by
which its real value would be improved, but its value
to the landlord depreciated, that would be meliorating
waste (c). Destructive waste will form the subject of
inquiry at law or in equity, at the option of the injured
party; but meliorating waste will almost invariably fall
within the exclusive jurisdiction of the court of equity.
If a tenant for life, having a right to explore the ground,
be guilty of wanton or malicious disturbance of the soil,
he will be guilty of equitable waste ; on the other hand, if
a tenant for life, having no right to explore the ground,
do interfere with it, he is guilty of legal waste. What
constitutes waste, is a question for the court ; the amount
of damages consequent upon waste, a question for the
jury ; but if a jury only award nominal damages, that
is tantamount to giving a verdict for the defendant, as
the law does not regard any act, by whomsoever com-
mitted, as amounting to waste, unless there be some sub-
stantial grievance or damage to the inheritance (cT). Where
waste has been committed, the wrongdoer must suffer from
the impossibility of ascertaining accurately the amount of
damage (e).
It is generally waste for all persons with limited inte-
rests to open new mines or quarries ; but it is not waste for
them to work old ones. These two questions have already
been indirectly considered in all their bearings (/). When
a legal estate is vested in trustees, upon trust for a tenant
(6) Co. Litt. 53 a ; White v. M'Cann,
1 Ir. C. L. 205; ante, pp. 159, 167.
(c) Governors of Harrow School, v.
Alderton, 2 Bos. & P. 88; Doran v.
Carroll, 11 Ir. Ch. 379, ante, p. 159.
(rf) Doe tl. Grubb v. Burlington, 5
B. & Ad. 507 ; Governors of Harrow
School v. Alderton, 2 Bos. & P. suprh, ;
ante, pp. 159, 167.
(e) Duke of Leeds v. Earl Amherst,
20 Beav. 239.
(f) Moyle v. Mayle, Owen 66 ;
Briggs v. Lord Oxford, 1 De G. M. &
G. 363 ; Lord Lovat v. D. of Leeds,
2 D. & S. 75 ; Bagot v. Bagot, 32 L.J.
Ch. 116; and cases cited, ante, pp.
153, 158, 161.
CHAP, xiii.] WASTE. 255
for life, with remainder over, it is their duty to protect the
estate against waste (. Hewson, 3 Ex. 5C2 ;
Huntley v. Russell, 13 Q.B. 572 ; ante,
pp. 160, 246.
(n) Holden v. Weekes, 1 J. & H.
278.
(o) Temp. 35 Ed. I. 2 Roll. Abridg.
813 ; B. of Durham, 35 Ed. I. Rot.
Parl. vol. i. p. 198; Cro. Car. 253;
Year Book 2 Hen. IV. ; Jefferson v.
B. of Durham, 1 Bos. & Pull. 116,
130; Stockman v. Whither, B. of
Salisbury's case, 1 Roll. 8G; 2 Bulstr.
279; Sakar'a case, 3 Bulstr. 91;
Moor 917; Costerd's case, 2 Roll.
Ill ; Knovvle v. Harvey, 1 Roll. 335 ;
3 Bulstr. 158; Stampe v. Clinton,
1 Roll. 95; Liford's case, 11 Co. 49;
Knight v. Mosely, Ainb. 176 ; Wither
v.' D. & Chap, of Winchester, 3 Mer.
421 ; Duke of Maryborough v. St. John,
5 De Gex & Sm. 174.
O) 13 Q.B. 572 ; s.c. 18 L.J. Q.B.
239; 13 Jur. 837.
(q) Strachy v. Francis, 2 Atk. 217.
(r) Huntley v. Russell, 13 Q.B.
572, 579.
CHAP, xin.] WASTE. 257
was not sloped down or filled up according to section 31 of
the former Act, or section 55 of the latter, and some gravel
had been taken from the pits, and sold by the rector's
lessees, without sloping or filling up the cavities, it was
held, in an action against the executors of the deceased
rector, that the act complained of was waste. The learned
judge, in summing up the case to the jury, observed that
" if the surveyors of the highways got the gravel by the
magistrates' orders, as to some extent they did, and if the
surveyors of adjoining districts had the sanction of the
magistrates for their getting the gravel, I cannot think it
is waste in the rector; it is a proceeding in invitum, the
Act of Parliament obliges him to let the surveyor take from
the soil the material for the highways ; and, if the surveyor
had it in that way, it could not be waste, and he would incur
no liability ; it must have been on some other ground that the
rector became liable, such, for instance, as receiving com-
pensation from the surveyor of the highways for taking the
gravel, on the supposition that he would restore the soil to
its original state." In the ensuing term a rule nisi for a
new trial, on the ground of misdirection, was obtained and
afterwards made absolute, and Mr. Justice Patteson, in
delivering the judgment of the court, is reported to have
said : " the defendants are certainly not liable for the Continuing
original opening, or for the taking of such gravel as was to work
pits opened
used for the highways, unless they have shut themselves by sur-
out from this defence by not pleading that matter spe- v f ^ r9 .
dally, instead of merely pleading l No Waste.' In order ways.
to show that they have so shut themselves out, the plaintiff
relied on the case of Simmons v. Norton (s) ; that case is,
however, distinguishable from the present; there the act
done which constituted waste was the voluntary act of the
defendant himself, and the defence attempted to be set up
was a justification of the act, which was in itself primS, facie
waste, under an alleged custom of the country. Here the
defence is, that the act was done by others in the execution
of a public duty, and was not prima facie waste, which
might, therefore, like the act of God, be given in evidence
(s) 7 Bing. C40.
B
o.-jS INJURIES TO MINING PROPERTY. [CHAP, xm
on the issue of No Waste. But it was further contended
by the plaintiff, that an omission on the part of the late in-
cumbent to slope clown the ground from which the gravel
was taken, rendered the act of the surveyors waste done
by him, and that, such omission being stated in the third
count, the plaintiff was entitled to a verdict on the issue of
' No Waste,' and to damages to the extent of such sum as
was necessary to slope down and put the ground into a
state capable of cultivation ; and those damages were
assessed at 120; and accordingly the rule nisi is to enter
a verdict for that amount. The statute 13 Geo. III. c. 78,
s. 31, provides that the surveyors shall slope down the
ground, and subjects them to penalties for not doing so, to
be laid out in sloping clown the ground ; and no doubt the
incumbent ought to have compelled them to do so ; but we
think it impossible to say that their omission, and his
omission, in this respect, can have such retrospective effect
as to render the taking of the gravel waste committed by
him ; and, of course, it cannot entitle the plaintiff to a
verdict on the issue of ' No Waste.' We do not mean to
hold out that any action could be maintained in any shape
against the present defendants for this omission. Such omis-
sion would seem rather to be in the nature of misfeasance in
the management and cultivation of the estate, for which
this court has already held, in the case of Bird v. Relph (/),
that an action will not lie against the executors of a de-
ceased incumbent. It is, however, unnecessary to deter-
mine this point positively on the present occasion. It
remains only to be considered whether a verdict ought to
be entered for 5 on the second count, in respect of the
value, found by the jury, of the gravel taken for other
purposes than the highways ; indeed, sold generally by the
late incumbent. Now, if the gravel-pits in question had,
before the incumbency of Mr. Grant, been opened and
used for getting gravel for sale generally, we should incline
to the opinion of Lord Hardwicke, in Knight v. Mosely (?<),
that Mr. Grant had not committed waste by continuing so
to use them ; but when it is found by the jury that the
(0 4 B. & Ad. 82C. (u) Ambler, 176.
CHAP, xiii.] WASTE. 259
pits were opened by surveyors of the highways for public
purposes, and the evidence shows that Mr. Grant's lessee
dug gravel from them, and sold it generally for the first
time, we think such digging and sale was equivalent to
opening the pits for that purpose, and was an act of waste.
The public necessity required the opening pits in the
place in question ; but the proper use of them was limited
by that necessity. They ought also to have been sloped
down after every exercise of the public right, and the
incumbent, or his lessee, was not entitled to take advan-
tage either of the opening which arose from that public
necessity, or of the continuing open which arose from the
omission of a public duty, and to say that the pits thereby
became open for all purposes."
The remedies against waste are either by action on the Remedies
case, which is in lieu of the old action of waste ; or by bill ^"e!
in equity. After the action is brought, or the bill is filed,
an injunction may be obtained, either at law or in equity,
to restrain future waste (v) ; and, in cases of emergency,
even before the bill is filed. If the proceedings are at law,
substantial damages are recoverable ; if in equity, an
account is taken, and that of the produce only ; but, since
the Chancery Amendment Act, 1858, damages may now
be recovered in equity as well as at law (to).
When the severing of minerals amounts to waste, and Injunctions
the persons in reversion and remainder come into equity, coull t s .
to stay future waste, an account of past waste will also be
decreed (#) ; and when the person suing has only an
equitable interest in the severed minerals, he may have an
account, wholly irrespective of his right to an injunc-
tion (?/) ; the remainderman of an undivided share of the
inheritance may have an injunction as well as an ac-
(v) 3 & 4 Will. IV. c. 27, a. 26; 17 (x) Whitfield v. Bewitt, 2 P. W.
k 18 Vic. c. 125, sees. 79-81 ; Red- 240 ; Jesus College v. Bloom, Amb.
fern v. Smith, 1 Bing. 382; Bacons. 54; Jesus College^. Bloom, 3 Atk.
Smith, 1 Q.B. 345; Powys v. Bla- 262; Lee v. Alston, 1 Bro. C. C. 194 ;
grave, 4 Ue G. M. & G. 448 ; ante, I Ves. 78 ; Parrot v. Palmer, 3 M.
pp. 159, 161. & K. 632 ; Richards v. Noble, 3 Her.
(w) Lee v. Alston, 1 Bro. C. C. 194 673 ; Jefferys v. Smith, 1 J. & W. 298.
3 Bro. C. C. 37 ; Powell v. Aiken, 4 (y) Lansdowne v. Lansdowne, 1
K. & J. 343; 21 & 22 Vic. c. 27, Mad. 116; Morris v. Morris, 3 De G.
sees. 2-7. & J. 323.
82
2GO INJURIES TO MINING PROPERTY. [CHAP. xm.
count (z); but where a tenant for life made a lease of
coal mines of such a character as amounted to a forfeiture
of his estate, it was held that he could not join with the
remainderman in a hill to restrain the lessee from work-
ing the mines (a). The Statute of Limitations cannot be
pleaded in bar to an action, or a suit, brought by a remain-
derman against a tenant for life for minerals severed more
than six years before commencing proceedings, if the
tenant for life has within six years rendered an account to
the remainderman. An injunction, as well as an account,
will be decreed for meliorating waste (6), not usually for
permissive waste (c). No unnecessary delay in making an
application to the court to restrain Avaste should be suf-
fered (d} ; it is not even necessary to wait till some serious
act of waste has been committed, provided there be reason-
able ground for anticipating further waste. A threat,
coupled with any act, however small in itself, will be pre-
sumptive proof of the intent (e\
Ecclesias- The action of waste against ecclesiastical persons is
al per- ca ]j ec [ an ac tion for dilapidations," and it is maintainable
by a successor against his predecessor or the executor of
such predecessor (/). An account will not be decreed by
a court of equity in reference to church property at the
instance of the patron, as he must not derive any profit
arising out of a wrongful act (g).
(z) Co. Litt. 53>>. (e) Coffin v. Coffin, Jac. 71 ; Barry
(a) Wentworth v. Turner, 3 Ves. 3. ?. Barry, 1 J. & W. (551.
(6) Brydges r. Kilburn, 5 Ves. 689; (/) Wise v. Metcalfe, 10 B. & C.
Smyth v. Carter, 18 Beav. 78 ; Doran 299 ; Bird v. Relph, 4 B. & Ad. 826 ;
v. Carroll, 11 Jr. Ch. 379. Downes v. Craig, 9 M. & W. 166 ;
(c) Powys v. Blagrave, 4 D. M. & Huntley v. Russell, 13 Q.B. 572; Bun-
G. 448. bury v. Hewson, 3 Ex. .062 ; Bryan v .
(d) Attorney-General v. Eastlake, Clay, 1 Ell. & Bl. 38.
11 Hare, 228. fcjr) Knight r. Moseley, Arab. 176.
CHAP, xiii.] NUISANCE. 2G1
NUISANCE.
What constitutes a Nuisance The cases relating to Brick-burning Mining
Furnaces Noxious vapour Necessity for Fences to Mines Shafts and
Machinery of a dangerous kind Nuisances resulting from the pollution or
detraction of Water Removing of support to hands.
THE law respecting nuisances is very closely connected What con-
\vith the law respecting waste. All injuries to the natural
rights of property which do not positively interfere with
the possession of the land, are nuisances. Those injuries
may be direct or immediate on the one hand, and mediate or
consequential on the other (/t) ; in either case, the courts
of equity, as well as of law, will afford redress. If
a plaintiff applies for an injunction to restrain a nui
sance, and the existence of the right or the fact of i
violation be disputed, he must first establish his right and
the violation of it, and then he will be entitled to an i
junction to prevent a recurrence of the wrong (i) ; but i
there is danger of irreparable mischief being done, befor
the right, or the violation of it, can be established, an in-
terlocutory injunction will be granted instanter (j); and
whenever a question of law arises on which the right of
any party to any equitable relief depends, and whether the
title to such relief be or be not incident to, or dependent
upon a legal right, such question must now be determined
by the Court of Chancery, and not sent to a court of com-
mon law (&). Injunctions being intended to prevent irre-
parable mischief, the court will not interfere in that mode,
unless by so doing the enjoyment of the right can be se-
cured (/), nor until it is clear that the act complained of
must inevitably result in a nuisance (m).
(A) Scott v. Shephard, 1 Smith's Selfe, 4 De G. & Sm. 315; on appeal,
leading cases, edit. 1856, vol. i. pp. 19 L. T. 308; Emnor v. Banvell, 2
216, 346. Giff. 410 ; on appeal, 4 L. T. N.S.
(t) Broadbent v. Imperial Gas Co. 597.
7 Ho. Lords' Cases, 612 ; Potts v. (/) Wood v Sutcliffe, 2 Sim. N.S.
Levy, 2 Dr. 272. 163.
(j) Earl of Ripon v. Robart, 3 My. (;) Haines v. Taylor, 10 Beav. 75 ;
& K. 169. Elwell v. Crowther, 6 L. T. N.S.
() 25 & 26 Vic. c. 42. Walter v. 596.
262 INJURIES TO MINING PROPERTY. [CHAP. xm.
Brick- The most familiar instances where the law of nuisance
burning. j iflg ^ Qen illustrated, will be found in that class of cases
which refer to brick-burning (), and on, a reference to
those cases, it will be seen that the law has not been sa-
tisfactorily or uniformly maintained. The difficulty, no
doubt, is to reconcile the exigencies of business with the
rights of the owners of the surrounding property, and
recently the question has been found full of legal difficul-
ties in its application to mines and manufactories. What,
then, are the rights of the owners of property for injuries
Mine sustained by and through the smoke or sparks of furnaces
furnaces. am j g res uge( | j n j.] ie p rocesse s of mines or manufactures ?
If, on the one hand, an individual has a legal right to
object to any mining operations or manufacture being car-
ried on within the area of its own works because smoke, or
Noxious other noxious vapour, is discharged from them to the in-
jury of his, the adjoining property, the result would be to
stop a large number of the works in the kingdom ; and if,
on the other, an individual or a company have a right to
purchase a piece of land, of small extent, and to mine or
manufacture there as he pleases, the result would be that
a greater amount of surrounding property might be sacri-
ficed than the value of the works so carried on. The doc-
trine, " sic utere tuo ut alienum non Ijedas," must, there-
fore, be brought to bear upon the subject ; but this begs
the whole question, and resolves itself into a consideration
of the respective rights of adjoining owners. The rights
of each are equal, and this almost involuntarily leads to
the opinion, that nothing more than a reasonable use of land
can be allowed, if an unreasonable use of it injure the
adjoining territory. What is a reasonable use of land has
recently been raised in the case of a smelting company ; but
Fences. the case has not yet found its way into the reports. Another
species of nuisance relates to the duty of mine owners to
(n) Pollock v. Lester, 11 Hare, v. Turnley, 2 Fos.&Fin. 231 ; Cleeve
266; Duke of Grafton v. Billiard, v. Mahany, 9 W. R. 882; Cavey
4 De G. & Sn. 326 ; Attorney-General v. Ledbitter, 3 Fos. & Fin. 14 ;
v. Cleaver, 18 Ves. 219 ; Walter v. Beardmore v. Tredwell, 31 L.J. Ch.
Selfe, 4 De G. & S. 324 ; Hole v. 892 ; Steven . Child,
Barlow, 4 C.B. N.S. 334; Bamford
CHAP, xui.] NUISANCE. 263
provide suitable fences to all excavations, or dangerous Fences to
machinery made or erected on mines and mining works. In ^Tfts" and
the case of Hounsell v. Smyth (o), the declaration alleged machinery
that the defendants were seized in fee of waste land, and
that before the grievance alleged, a quarry had been opened
on the land, which was worked by leave of the defendants,
who received a royalty; that the waste was open to the
public, and that all persons having occasion to cross it had
been wont to cross it with the license of the owners ; that
the quarry was situate near to and between two public
highways leading over the waste, and was dangerous to
persons who might accidentally deviate, or have occasion
to cross the waste for the purpose of crossing from one
road to the other ; that the defendants, well knowing the
premises, left the quarries unfenced, and the plaintiff hav-
ing occasion at night to cross the waste to get from one of
the roads into the other, and not being aware of the exist-
ence of the quarry, fell into it and was injured. Mr. Jus-
tice Williams, in delivering judgment said, " The law as
to this has long been settled by Blyth v. Topham (p), and
confirmed by subsequent cases. Blyth v. Topham is an
authority for the proposition, that if the owner of waste
land dig a pit in the waste within a certain distance of the
highway, he is not responsible for injury sustained by
cattle that stray from the highway on to the waste and
fall into the pit ; and the authority of that case is confirmed
by the distinction drawn in Barnes v. Ward (, s.c. 1!) L.J. C.J'.
.Ml.!; 7 C.IJ. N.S. 731; C Jur. N.S. l!>. r >.
897. () 4 II. & N. 07; s.c. 28 L.J.
O) Cro. Jac. 158. Exch. 139.
264 INJURIES TO MINING PROPERTY. [CHAP, xiu
onces to suiting from a public nuisance is the subject matter of an
shafts' and action for damages. In this case the allegation amounts to
machinery, nothing more than that the quarry was somewhere between
the two roads ; not so near as to amount to a public nui-
sance, but so near that persons deviating from the one for
the purpose of crossing to the other might fall into it. It
has been long established, as I have already observed, that
those facts give no cause of action unless the excavation
is so near the road as to amount to a public nuisance.
That limitation is founded on reason and good sense ; for
if the public have acquired a right of passing along a road,
they cannot be deprived of that right, as they would sub-
stantially be by the owner of the adjacent land digging a
precipice on each side, and so making it dangerous to use
it. If he does that, he clearly commits a public nuisance ;
but it is not alleged that the defendants here have done
anything amounting to a public nuisance. This case has
been likened to the case of Corby v. Hill (s) ; but there is
no analogy between them. In Corby v. Hill, the defend-
ant held out an inducement to persons to come upon his
land, by allowing the road to be used, and held out as a
means of access to his house ; and he gave them no pre-
vious knowledge or intimation that they would encounter
any peril or difficulty in so using the road. The principle
upon which that case was decided approaches very nearly to
the principle explained in Barnes v. Ward, for the defendant
was heldjiable for having put an obstruction in a road by
which the plaintiff, who was invited, and had so far a right
to use the road, was injured. The plaintiff, in the present
case, had merely permission to cross the waste, and might
have , known of the existence of the quarry, and of the
danger he incurred Jay crossing the waste. The case is not
in principle distinguishable fronij Blyth v. Topham, and
does not fall within the exception established by Barnes v.
Ward, in which there*was a public nuisance and a private
injury resulted, and ^therefore it wasjield that an action
0) 4 C.B. N.S. 556 ; s.c. 27 L.J. C.P. 318.
CHAP, xiii.] NUISANCE. 265
was maintainable by the party injured. For these rea-
sons I am of opinion that the defendants are entitled to our
judgment."
Where a canal had been made in land along which lay Fences.
an ancient footway, and between the canal and footway
was a towing-path nine feet wide, and a strip of grass
several feet in breadth, and the public were permitted
to pass over the whole intervening space which was left
unguarded and unlighted, it was held by the Court of
Queen's Bench that the canal was not so near to or adjoin-
ing the footway as to be a nuisance, or to impose on the
proprietors the duty to fence, light, or protect it. And,
per curiam, " We adopt on this subject the law as laid
down in Hounsell v. Smyth (t), that to throw upon the
owner the obligation of fencing an excavation on land ad-
joining a public road or way, it ought to be shown that the
excavation is so near thereto as to be dangerous to per-
sons using the road in the line of the road " (w).
Where a right to work mines or quarries has been granted When the
by the owner of the soil, whose duty is it, in the absence minerals
of agreement or custom, to provide fences, the owner and the
r i ! T a so " are
ot the soil, or the grantee or licensee ? is a case which distinct.
does not seem to have been decided until the recent case
of Williams v. Groucott (v). The plaintiff was the owner
of a certain field near Holy well, in Flintshire, and the
defendant, who was engaged in mining operations in Wales,
was the owner of the minerals under the field in question,
having a right to sink shafts for the purpose of working
the minerals. On the 23rd of October, 1861, the plaintiff
turned some horses of his into the fielcl,*and, the shaft sunk
by the defendant not being fenced, a mare belonging to him
fell down the shaft and was killed. An action to recover
50, the alleged value of the mare, was brought in the
Flintshire County Court, and was tried in the month of
December, 1862, before the deputy-judge of that court,
(<) 7 C.B. N.S. 731. (v) 32 L.J. Q.B. 237.
O) Binks v. South Y. & R. D. Navi-
gation Co. 32 L.J. Q.B. 26.
266 INJURIES TO MINING PROPERTY. [CHAP. xm.
Fences to when a verdict was returned by the jury for the plaintiff,
T'fT' d M i^ 1 ( l ama g es -40, subject to a special case stated by the
machinery, deputy-judge for the decision of the Court of Queen's
Bench. The question came on for argument in Trinity
Term, 1863. On behalf of the defendant it was contended
that the plaintiff, having licensed the sinking of the shaft,
was bound to protect himself from any dangerous con-
sequences that might arise to his cattle; and that the
defendant, having done nothing more than he had a clear
right to do, was not liable to fence the shaft so as to protect
the plaintiff, the surface owner. There was no evidence
of any particular custom as to fencing pits and shafts
amongst the miners of Wales. For the plaintiff, it was
urged that the owner or occupier of minerals having ease-
ments on the surface, is bound to adopt the necessary
precautions to protect the surface owner. The Lord Chief
Justice admitted that the question was a nice one, and that
there was no direct authority upon the point. "The
question," said his Lordship, "was whether, where the
ownership of the minerals below the surface is separated
from the ownership of the surface, with license to sink a
shaft, it is incumbent on the licensee to protect the owner
of the soil ; or whether it rests with the owner of the sur-
face to protect himself. Here there is no express stipulation
between the parties, and no evidence of any particular
custom of the country. The owner of the surface may
say, 'You have liberty to sink the shaft, but you must
protect me.' On the other hand, the licensee may say,
' You have given me leave to sink the shaft, and although
this may be dangerous, still I have done no more than you
gave me license to do, therefore you must protect your-
self.' This then is the question, and in the absence of any
express authority we can only look to what is reasonable,
and we are disposed to think and to act upon the opinion,
that it is but reasonable that the licensee having the use
of the shaft should protect the owner of the surface, and
that therefore the verdict of the plaintiff should stand."
Justices Wightman and Blackburn concurred.
CHAP, xiii.] NUISANCE. 267
Whenever water is polluted or diverted, the injuries Water,
resulting therefrom frequently terminate in a nuisance ;
and if the natural support to land is withdrawn, that also Support to
frequently becomes a nuisance. These two questions are an '
fully discussed in another chapter following Servitudes
and Easements, by reference to which it will be seen
when such injuries to real property become nuisances in
the technical sense of the word.
It is further to be observed, as a general rule, that a Abatement
i . i i . iv -11 of nuisance,
person who is injured by a nuisance may abate it, provided
he can do so without committing a breach of the peace, or
endangering human life (iv).
(w) Perry v. Fitzhowe, 8 Q.B. 776, and authorities there cited.
208 TITLE BY ALIENATION. [CHAP. xiv.
CHAPTER XIV.
TITLE BY ALIENATION.
1. ALIENATION IN GENERAL
2. LEASES
3. LICENSES
4. SALE OF MINE SHARES
5. MACHINERY
6. TITLE BY WILL
ALIENATION GENERALLY
Statute of Frauds, and 8 $f 9 Vic. c. 106. Deeds generally Feoffment, Grant,
Partition, Exchange, Lease, Surrender by Operation of Law, The doctrine of
caveat emptor applied to Mines How affected by deceit either on the part of
the Vendor or Purchaser. Specific performance and Equitable relief Rights
beneath the surface, on severance of two Estates. Mines sold by the Court of
Chancery. Registration of Deeds Stamps. Who may alienate The Crown
The Duchy of Cornwall The Freeholder The Lord of the Manor Persons
with limited interests Trustees Mortgagees- Assignees of Bankrupts
Official Liquidators Ecclesiastical and Municipal Corporations.
SALES AND LEASES OF SETTLED ESTATES. Mining Leases by direc-
tion of Court of Chancery. On Sales, Minerals may be reserved 19 20 Vic.
c. 120; 22 Sf 23 Vic. c. 35; 23 ^ 24 Vic. c. 145; 25 fr 26 Vic. c. 108
Confirmation of doubtful powers for leasing, and sale of Minerals Horn pro-
ceeds of sales to be applied.
Statute of A DEED is generally necessary to the creation or transfer
of any legal estate in minerals unsevered from the soil (a).
By the Statute of Frauds, 29 Charles II. c. 3, it is enacted,
that "all leases, estates, interests of freehold or terms of
years, or any uncertain interest of, in, to, and out of any
(a) Hewlins t>. Shippain, 5 B. & C. W. 838; Perry v. Fitzhowe, 8 Q.B.
21 ; Wallis v. Harrison, 5 M. & W. 757 ; Roffey v. Henderson, 17 Q.B.
142; Wood v. Leadbitter, 13 M. & 587.
SECT, i.] STATUTE OF FRAUDS. 269
messuage, manors, lands, tenements, and hereditaments,
made and created by livery and seisin only, or by parol, and
not put in writing, and signed by the parties so making or
creating the same, or their agents thereunto lawfully au-
thorized by writing, shall have the force and effect of leases
or estates at will only, and shall not, either at law or in
equity, be deemed or taken to have any or other greater
force or effect, any consideration for making such parol
leases to the contrary notwithstanding ;" except, neverthe-
less, as appears by the 2nd section, " all leases not exceed-
ing the term of three years from the making thereof, where-
upon the rent reserved to the landlord during such term
shall amount to two-third parts at least of the f ull improved
value of the thing demised."
The third section enacts that no leases, estates, or inte-
rests, either of freehold or terms of years, or any uncertain
interest, not being copyhold or customary interests in any
messuages, lands, manors, or hereditaments, shall be
assigned, granted, or surrendered, unless it be by deed or
note in writing, signed by the party so assigning, granting,
or surrendering the same, or their agents thereunto law-
fully authorized by writing, or by act and operation of law.
The 4th section enacts that no action shall be brought
whereby to charge any person upon any contract or sale of
lands, tenements, or hereditaments, or any interest in or
concerning them, or upon any agreement that is not to be
performed within one year, unless the agreement on which
such action shall be brought, or some memorandum or note
thereof, shall be in writing and signed by the party to be
lawfully charged therewith, or some other person thereunto
by him lawfully authorized ().
The 1st section (c) seems to be co-extensive with the
4th, and consequently every interest which is within the
4th section is equally within the 1st, unless it come within
(i) Bolting v. Martin, 1 Camp. 317 ; Carrington v. Roots, 2 M. & W. 257 ;
Mollett v. Brayne, 2 Camp. 103; Toppin v. Lomas, 16C.B. 145; Snell-
Stone v. Whiting, 2 Stark. 235 ; ing v. Lord Huntingfield, 1 C. M. &
Thomas v. Cooke, 2 Stark, 408 ; R. 20.
Thomson r. Wilson, 2 Stark. 379 ; (c) Cooch v. Goodman, 2 Q.B. 596.
Pliipps ". Sculthorpe, 1 B. &Ald. 60;
070 TITLE BY ALIENATION. [CHAP. xiv.
Statute of the saving of the 2nd section. The 1st and 2nd sec-
tions amount to this, that all interests actually created
without writing shall be void, unless in the case of a lease
not exceeding three years, at nearly rack-rent. If an
estate, of whatever value, should be conveyed to a pur-
chaser by livery of seisin, without writing, the Act would
avoid the estate, although the purchaser had paid his
money. An actual lease for any given number of years,
whether with or without rent, or any lease uncertain in
point of duration, must, it should seem, equally fall within
the provision of the 1st section, and cannot be sustained
unless it come within the saving in the 2nd section (d).
This, however, of itself would not have prevented all the
evils which the Act intemled to avoid, for although actual
estates could not be created, yet still parol agreements
might have been entered into respecting the future crea-
tion of them. To remedy this mischief, the provision in
the 4th section was inserted, which relates, not to con-
tracts or sales of or concerning land, but to any agreement
made upon any such contract or sale : and as agreements
were more to be dreaded than contracts actually executed,
no exception was inserted in the 4th section similar to that
which followed the first section, and consequently an agree-
ment by parol, to create even such an interest as is ex-
cepted in the 2nd section, would be merely void (e). The
4th section does not exclude unwritten proof in the case of
executed contracts ; so that if one party has performed the
contract, and the other has accepted such performance, the
objection that the agreement was not in writing cannot be
supported (/).
8 & 9 Vic. The 8 & 9 Vic. c. 106, after repealing the 7 8 Vic.
c. 76, provides that after the first day of October, 1845,
all corporeal tenements and hereditaments, as regards the
conveyance of the immediate freehold, are to be deemed
to lie in grant as well as in livery ; and that a feoffment,
(rf) Crosby v. Wadsworth, 6 Ea. (e) Lord St. Leonard's Vendors &
610 ; Lord Bolton v. Tomlin, 5 Ad. & Purchasers, edit. 1862, p. 123.
E1 - 8 57- (/) Lavery r. Turley, 6 H. & N.
239.
SHOT, i.] 8 & 9 VIC. C. 106. 271
" other tlmn a feoffment made under a custom by an
infant, shall be void in law, unless evidenced by deed ;
and that a partition, and an exchange, of any tenements or
hereditaments, not being copyhold, and a lease, required by
law to be in writing, of any tenements or hereditaments,
and an assignment of a chattel interest, not being copyhold,
in any tenements or hereditaments, and a surrender in
writing of an interest in any tenements or hereditaments,
not being a copyhold interest, and not being an interest
which might by law have been created without writing,
made after the said first day of October, 1845, shall also
be void at law, unless made by deed ; provided always,
that the said enactment so far as the same relates to a
release or a surrender shall not extend to Ireland." The
Act does not in any respect apply to Scotland (#).
Previous to the 8 & 9 Vic. c. 106 an assignment or sur- Surrenders
render need not have been by deed (A) ; and now, notwith- ti
standing the said statute, there may still be an assignment
or surrender of any lease by operation of law. In Fulmer-
stone v. Steward (i) it was held that if he who is possessed
of a term of years takes a new lease of the same premises,
to commence presently, the arrangement would amount to
a surrender of the first lease. In Thomas v. Cook (j)
there was an agreement, which was not in writing, between
the landlord, his tenant, and an incoming tenant, to accept
the latter as the tenant of the premises, and it Avas held
that this was a surrender by operation of law ; and it was
similarly held in Grimman v. Legge (k\ where the posses-
sion was delivered by the tenant and accepted by the land-
lord. And in Dodd v. Acklom (/) a similar doctrine was
maintained ; and it was also decided in that case that one
of two joint lessees, who had solely interfered and acted as
the ostensible lessee, could surrender both on behalf of
(y) See 1, 2, 3, 10 ; Arden v. Sul- Leon, 7 II & N. 73 ; Bond v. Rosling,
livan, 14 Q.B. 832 ; Doe d. Davenish 1 Best & S. 371.
v. Moffatt, 15 Q.B. 257; Tress v. (h) Farmer v. Rogers, 2 Wils. 2C.
Savage, 4 Ell. & B. 36 ; Stratton v. (t) Plowd. 106.
Pettit, 16 C.B. 420; Drury v. Mac- (_/) 2 B. & Aid. 119.
namara, 5 Ell. & B. 612; Golden v. (i) 8 B & C. 324.
Taylor, 2 F. & F. 110; Kollason v. (1) 13 L.J. C.P. 11.
272 TITLE BY ALIENATION. [CHAP, xiv
himself and his co-lessee. The above cases must be dis-
tinguished from those like Doe d. Huddleston v. John-
ston (?), where thei'e was a mere agreement without
change of possession, and Mollett v. Brayne (??), where the
landlord replied that he would hold the former tenant to
the payment of his rent (o).
Caveat Jn applying the rule of caveat emptor to iron or coal
applied to a"d other mines, it must be remembered that every one
mines. acquainted with that kind of property is aware that such
mines are liable to be interrupted by faults. On this sub-
ject Vice-Chancellor Wood is reported to have said (j>),
" With regard to mines, the rule of caveat emptor must be
put rather higher than the plaintiff has here contended for.
It has been said, how can a man know what coal there is
underground? But every man who has anything to do
with mining knows that coal-mines are liable to faults (ic trary exercise of powers reserved to a grantor; but no
specific performance will be decreed of any contract which
is ambiguous in its terms (i/), or where the subject-matter
has undergone such an alteration that it cannot be given to
the claimant if a decree were made (z) ; nor for carrying
into effect contracts of persons with limited interests to
the prejudice of those in remainder or reversion. The
remedy in such cases will be at law to recover da-
mages (a). If an expenditure has been incurred under a
verbal promise to renew a lease, specific performance will
be decreed (b) ; but where a lessee has a right to a re-
newal under a covenant, the court, before decreeing, a
performance will inquire into the conduct of the lessees, to
see if they have fairly carried out the obligations imposed
upon them by their own covenants in the original lease (c),
and where a renewal is agreed to, whether under a cove-
nant or by subsequent agreement, the terms of the old
lease in the absence of * any other arrangement will be
declared to be terms of the new lease (d~). But the court
will not, in a suit for specific performance, direct inquiries
or accounts to be taken of the defendant's management,
for the purpose of ascertaining whether any compensation
should be made by the defendant to the plaintiff (rk. & Bro. 727.
(r) G Anne, c. 35. (z) 15 Car. II. c. 17, s. 8.
0) 2 & 3 Anne, c. 4; 5 Anne,
c. Ib.
SECT, i.] WHO MAY ALIEN E ? 279
grant in general being made of the lands of the crown for
a term exceeding thirty-one years (?/) ; but the crown may
nevertheless restore lands which have accrued to the sove-
reign by escheat, or forfeiture (z). Whenever the crown
makes a grant of any interest in minerals, the same must be
by " matter of record," usually by charter or letters pa-
tent (a), and as disputes may, and not unfrequently do,
arise between the crown and the subject, as in a recent
case respecting a grant of coal mines purporting to have
been made by the crown, the grantee should not be satis-
fied with a less carefully prepared instrument from the
crown than from a private person. In the case referred
to, the crown, by letters patent, as lord of the manor of
E, made a grant of " all those coal mines found, or to be
found, within the commons, waste grounds, or marshes
within the said lordship of E," with a proviso that the
grant should be construed strictly against the crown, and
most strictly and beneficially for the grantees; this grant
was held to pass coal lying under the foreshore of the es-
tuary of the river Dee, between high and low water marks,
and forming part of the manor of E, and the information
by the Attorney-General was dismissed with costs (b).
The possessions of the Duchy of Cornwall were, at com- Duchy of
mon law, inalienable ; but we have already referred to
numerous Acts of Parliament, under and by virtue of
which very extensive powers of alienation have been con-
ferred upon His Royal Highness the Duke for the time
being; or in case of no Duke, the Crown (c).
The owner of an estate in fee simple, where the owner- Free-
ship in minerals is blended with, or not distinct from, the holder -
ownership in the soil, may convey an absolute right to
minerals with liberty to work them, or grant any lesser
estate than his own ; a similar right is vested, but with
some qualifications, in tenants-in-tail, tenants-in-tail after
possibility of issue extinct, tenants for life dispunish-
(y) 1 Anne, St;it. 1, c. 7; 34 Geo. () I I & l. r > Vic. c. 82.
III. c. 75; 48 Geo. III. c. 73. (It) AU.-Genl. v. Ilanmer, 27 L.J.
(z) 39 & 40 Geo. III. c. 88, a. 12 ; 47 Ch. 837.
(Jeo. III. sess. 2, c. 24; [>'J Geo. 111. (c) Ante, p. 130.
c: !U; Geo. IV. c. 17.
280 TITLE BY ALIENATION. [CHAP. xiv.
of waste ((/), and joint-tenants (e) ; but where the
ownership in minerals is distinct from the ownership in
the soil, as in copyhold lands (/), no alienation of them,
except by custom, will enable the alienee to disturb the
surface, as that would amount to waste (g) ; but in corn-
Lord of the mons and waste lands, where the rights of the lord and the
manor. commoner are also distinct, the lord may by deed authorize
a disturbance of the surface, if sufficient herbage is left for
the use of the commoners (A).
Persons Tenants for life impeachable for waste, tenants, by
limited t ne curtesy, or in right of dower (i), infants, married
interests. W omen, idiots, and persons of unsound mind (j), were all
disabled at common law from making any grant of mine-
rals; but now, by several statutes, numerous provisions
have been made for enabling persons with limited interests
or whilst labouring under disabilities, to make limited grants
and leases of their estates, and with the approbation of the
Court of Chancery, to make absolute sales and otherwise
to deal with their property. Assignees of bankrupts, and
official liquidators have also special powers for alienating
property which may involuntarily become vested in them
by virtue of their respective offices (&) ; and trustees, mort-
gagees, and others, who have no express power given to
them for the purpose by deed, may make conveyances,
leases or grants of necessity, and by recent Acts of Par-
liament, in some cases, absolute, in others partial, disposal
of the estates vested in them (I). The rights of, and powers
of alienation of ecclesiastical and municipal corporations,
and trustees of charities have been already noticed (m).
SALES AND The most important of all the recent Acts which have
LEASES OF , r .,,..,.
SETTLED been passed for enabling persons with limited interests,
ESTATES, trustees, mortgagees, and persons under disabilities, to
make grants of their minerals estates, is the 19 & 20 Vic.
c. 120, entitled "An Act to facilitate Leases and Sales
of Settled Estates," whereby any person entitled to the
(O Ante, pp. 157-163. (j) Ante, pp. 159-163 ; post, p. 283.
(e) Ante, p. 169. ft') Ante, p. 217, post, p. 283.
(/) Ante, p. 171. (F) Ante, p. '222, post, p. 283.
(7) Ante, p. 172. Ante, p. 229, post, p. 283.
(A) Ante, pp. 188, 193. (m) Ante, p. 234.
SECT, i.] SETTLED ESTATES. 281
possession or receipt of the rents and profits of any settled Leases of
estates for life, or for a term of years determinable on his tates
life, or for any greater estate either in his own right or
in right of his wife, unless the settlement expressly pro-
hibits any such demise, and any person entitled to the pos-
session, or to the receipt of the rents and profits of any
unsettled estates, as tenants by the curtesy, or in dower,
or in right of a wife who is seized in fee, may) without any
application to the court, demise the same, or any part
thereof, except the principal mansion-house and the de-
mesnes thereof, for any term not exceeding twenty-one
years to take effect in possession ; provided that every such
demise be made by deed, and the best rent that can rea-
sonably be obtained be thereby reserved without any fine
or other benefit in the nature of a fine, such rent to be inci-
dent to the immediate reversion ; and provided that such
demise be not made without impeachment of waste, and do
contain a covenant for payment of the rent, and such other
usual and proper covenants as the lessor shall think fit, and
also a condition of re-entry on non-payment for a period
not less than twenty-eight days, of the rent thereby re-
served, and on non-observance of any of the covenants or
conditions therein contained ; and provided a counterpart
of every deed of lease be executed by the lessee (n). And
the Courts of Chancery in England and Ireland have also
power (o), having due regard to the interests of all parties
entitled under the settlement, to authorize leases, and a sur-
render or renewal of such leases of the whole or any part
of any settled estates, or of any rights or privileges over or
affecting any settled estates for any purpose whatsoever,
whether invoicing waste or not, provided the following con-
ditions be observed :
" Firstly, that every mining lease shall be made to take Mining
effect in possession at or within one year from the making ^ se !- by
thereof, and shall be granted for a term not exceeding forty the court.
years ; a similar provision is therein contained respecting
(re) Sees. 32, S3, 35. See also 21 (o) Sees. 2-6, 10 ; re Dunlin's Will,
& 22 Vic. c. 77 ; re Chambers, 28 5 Jur. N.S. 1378.
Ueav. 653 ; White v. Leeson, 5 Jur.
N.S. 1361.
-K ) TITLE BY ALIENATION. [CHAP. xiv.
Mining leases of water, water-mills, way-leaves, water-leaves, and
! . by , other rights or easements, and for the construction of roads
the court, and water-courses. Secondly, on every such lease shall be
reserved the best rent, or reservation in the nature of rent,
either uniform or not, that can be reasonably obtained, to
be made payable half-yearly or oftener, without taking any
fine or other benefit in the nature of a fine. Thirdly,
where the lease is of any earth, coal, stone, or mineral, a
certain portion of the whole rent or payment reserved shall
be from time to time set aside and invested as hereinafter
mentioned ; namely, when and so long as the person for the
time being entitled to the receipt of such rent is a person
who by reason of his estate, or by virtue of any declaration
in the settlement, is entitled to work such earth, coal, stone,
or mineral for his own benefit, one fourth part of such rent,
and otherwise three fourth parts thereof ; and in every
such lease sufficient provision shall be made to ensure such
application of the aforesaid portion of the rent, by the ap-
pointment of trustees or otherwise, as the court shall deem
expedient. Fourthly, no such lease shall authorize the fell-
ing of any trees except so far as shall be necessary for the
purpose of clearing the ground for any buildings, excava-
tions, or other works authorized by the lease. Fifthly,
every such lease shall be by deed, and the lessee shall
execute a counterpart thereof; and every such lease shall
contain a condition for re-entry on non-payment of the
rent for a period of not less than twenty-eight days after it
Leases may becomes due. Subject and in addition to the conditions
contain herein-before mentioned, every such lease shall contain
special . . i i
covenants, such covenants, conditions, and stipulations as the court
shall deem expedient with reference to the special circum-
stances of the demise" (p).
Sales by And the court may also direct sales of the whole or of
direction of ail y p art o f tne se ttl e d estates, where limited interests are
the court.
reserved, and, upon any such sale, any earth, coal, stone,
or other minerals may be excepted, and any rights or pri-
vileges may be reserved, and the purchaser may be required
to enter into any covenants, or submit to any restrictions,
(p) Sees. 2, 3, 14.
SECT, r.] SETTLED ESTATES. 283
which the court may deem advisable (.>;
Lord Darcy v. Askwith, Hob. 234; Spencer v. Scurr, 31 L.J. Ch. 808.
\\hitfield i?. Bewit, 2 P. Wins. 242 ;
oss LEASES. [CHAP. xiv.
Coke states the law thus: "If a man hath land in which
there is a mine of coales, or of the like) and maketh a lease
of the land (without mentioning any mines) for life or for
yeares, the lessee for such mines as were open at the time
of ihe lease made may digge and take the profits thereof;
but he cannot digge for any new mine, that was not open at
the time of the lease made, for that should be adjudged
waste ; and if there be open mines, and the owner make a
lease of the land, and the mines therein, this shall extend
to the open mines onely, and not to any hidden mine : but
if there be no open mine, and the lease is made of the land
together with all mines therein, there the lessee may digge
for mines, and enjoy the benefit thereof, otherwise those
words should be void. I have been the more spacious con-
cerning this learning of waste, for that it is most necessary
to be knowne of all men" (m). And a demise of two seams
of coal and all other seams under an estate includes the
Quarries, unworked seams () ; but if open limestone quarries are on
land demised, the lessee or tenant may work them for
estrovers only, but not for sale, the analogy to open mines
not holding in such a case (0) ; and where a lease for lives
contained the following exception, "excepting and re-
serving unto the said lessor all mines, minerals, and other
royalties whatsoever, with liberty to search for, dig, raise,
manufacture on the premises, and carry away the same,"
it was held not to include open limestone which a former
lessee had been in the habit of working (p).
Effect of a Subsequently to a lease for taking alum from coal works
'oal^after anotner lease of the coal mines was granted, subject, how-
a demise of ever, to the rights of the lessees of the alum ; afterwards
it was found impracticable to work the coal without
removing the pillars which supported the roof, whilst
the removal of the pillars would have rendered the alum in
the wastes inaccessible ; and upon these facts it was held
that the prior grant of the alum to the lessees must remain
(TO) Co. Litt, 54 b . Eq. 271 ; Purcell v. Nash, 1 Jones (Ir.)
(n) Spencer v. Scurr, 31 L.J. Ch. 625.
0) Brown v. Chadwick, 7 Ir. C.L.
(o) Mansfield v. Crawford, 9 Ir. Rep. 101.
SECT, ii.] LEASES. 239
intact, and consequently that the pillars could not be re-
moved () 1 Taunt. 183; see also Ed-
Jervis v. Tomkinson, 1 H. & K 195. wards v. Rees, 7 Car. & P. 340.
(0 Smith v. Morris, 2 Bro. C.C. (w) Clifton t;. Walmesley, 5 T.R.
3U. 564.
(w) Phillips v. Jones, 9 Sim. 519 ; (*) 7 T.R. 676.
Marquis of Bute v. Thompson, 13 (g) Holmes v. Buckley, 1 Eq. Ab.
M. & W. 487; Jowett v. Spencer, 17 27, pi. 4.
L.J. Ex. 367 ; Mellers v. D. of Devon-
shire, 16 Beav. 252; 22 L.J. Ch.
310.
SECT, ii.] COVENANTS. 299
specified colliery, and from any other colliery to be worked
by him, at a rate of 2d. a ton, within a certain township, it
was held that the covenant ran with the land, and conse-
quently that the assignees were bound by it (z).
In a case where there was a demise of all mines and beds
of coal which had been or thereafter should be discovered
or opened, the lessee covenanted that he would work the
mines in a proper and workmanlike manner ; but it was
held that inasmuch as the mines had not been worked at
all, the defendants were not liable under the covenant for
not working them ; the subject-matter of the demise being
not all the mines under the lands, but only such of them as
had been or should be discovered or opened (a).
A very important decision was given in the case of Covenant
Foley v. Addenbrooke (6) upon the construction of a cove- uph/repTk
nant to yield up in repair the machinery, buildings, and machinery
J *!. U. C ..V 1J and fix -
nxtures, and in that case the portion or the machinery tu res.
which was to be left, and the state in which the buildings
were to be restored, after removing such things as were
not within the covenant, are clearly defined (c).
The lessees under a lease of coal mines covenanted that When
they would deliver to the lessor two equal thirteenth parts of produce
all coal which should be raised from the mines demised du- ma y be
ring the term, or would pay him quarterly the value thereof against a
in money, and that in case at the end of the first quarter of deficiency.
any year such quarterly deliveries should not have equalled
in value, or such quarterly payments should not have
equalled in amount the sum of 38 10s., the lessees should
also pay, at the end of every such first quarter, such addi-
tional rent or sum as should make up the sum of 38 10s. ;
and in case at the end of the second quarter, such deli-
veries or payments for that and the preceding quarter
should not have equalled in value or amount the sum of
75, then the lessees should also pay, at the end of the
second quarter, such further sum as would make up 75 ;
(z) Hemmingway v. Fernandez, 12 (&) 13 M. & W. 174 ; s.c. 14 L.J.
L.J. Ch. 130. Ex. 169.
(a) Quarrington v. Arthur, 10 M. (c) See title " Fixtures," post, p.
& W. 335 ; s.c. 11 L.J. Ex. 418. 317.
300 LEASES. [CHAP. xiv.
and in case at the end of the third quarter such deliveries
and payments for that and the two preceding quarters
should not have equalled in value or amount the sum of
111 10s., then the lessees should pay, at the end of
the third quarter, such further sum as would make up
111 10s.; and in case on the 24th of June, in any year,
the deliveries and payments for that and the three pre-
ceding quarters should not have equalled in value or
amount the sum of 150, the lessees should pay on the
24th of June, such an additional sum as would make up
150; it being the intent and meaning of the parties,
that the royalties thereby reserved should always amount
to 150 per annum at the least ; and it was held, that, in
calculating the amount of royalty due to the lessor at the
end of each year, the lessees were not entitled to set off the
excess of royalty accruing in any quarter against a defi-
ciency in the previous quarter; but that the lessees were
entitled, at the end of each quarter, to the full sum of
38 10s. (d).
Assignee. The lessee of certain coal mines assigned the lease, the
assignee covenanting that his executors, administrators,
and assigns would at all times during so long as he or
they should be in possession or receipt of the rents, pro-
duce, and profits of the premises, pay to the lessors 'the
rents, galeages, and way-leaves reserved and made payable
by the original lease, and observe and perform the said
covenants therein contained, and keep indemnified the
original lessee in respect thereof ; and it was held, that the
indemnity was not restricted to the time of the possession,
but was binding on the assignees whether in or out of pos-
session (e).
Waste. A lease was granted to open and work a quarry, and a
covenant was inserted not to commit any waste, spoil, or
destruction, by cutting down trees which were excepted
from the lease ; and it w r as held that the effect of the cove-
(d) Bishop v. Goodwin and others, (e) Crossfield v. Morrison, 7 C.B.
14 M. & W. 260 ; see also a similar 286 ; s.c. 6 D. & L. 608.
covenant in Buckley v. Kenyon, 10
East, 139.
Covenant
to
SECT, n.] COVENANTS. 301
nant was that the tenant should not so cut any of the
excepted trees, as that such cutting should amount to an
excess of the right which it was intended he should exer-
cise, and therefore that cutting trees in a manner necessary
to a reasonable exercise of the power to get the stone from
the quarry was no breach of the covenant (/).
An indenture of lease, by which certain coal mines in implied
the North of England were demised for the term of forty-two
i 111
years, contained the following covenant by the lessees : pits.
" And also, that they, the said lessees, their executors, &c.,
or their servants or workmen, should and would, once in
every month, or oftener, during the said term, at their own
expense, draw to bank at some of the pits or shafts of the
said collieries, or coal mines, thereby demised (provided
that the same should be pits or shafts from which the coals
of the thereby demised collieries should not be worked by
an outstroke)," i.e. by means of pits or shafts upon the
surface of the adjoining mines, " and lay in some con-
venient place in that behalf, upon the said lands and pre-
mises of the said lessors, for the said lessors, their heirs or
assigns, all the manure, compost, and dung, to be made
and bred by the horses employed underground in working
the said demised collieries, and should spend and bestow so
much thereof, and of all such dung, manure, compost, &c.,
as should be made, bred, or arise in, under, or upon the
said estate, lands, and premises of the said lessors, or any
part thereof, as might be necessary for that purpose, in
dressing and manuring any lands or grounds which they,
the said lessees, their executors, &c., or any of them, might,
during the said term thereby granted, occupy as tenants
to the said lessors, or either of them, their or either of their
heirs or assigns." The lease contained various clauses
O
which referred to the pits or shafts to be sunk on the
demised premises, but did not contain any express cove-
nant by which the lessees were either bound to sink a pit,
or to work the mines ; and it was also doubtful whether
the lessees were empowered to work the demised mines by
" outstroke ;" but it was held, that no covenant could be
(/) Doe d. Rogers v. Price, 8 C.B. 894.
302 LEASES. [CHAP. xiv.
implied from the preceding covenant, which imposed upon
the lessees, upon the mines being worked, and manure
being made within them, the obligation of sinking a pit or
shaft upon the demised lands, although they might be
liable for a breach of covenant in working the mines by
outstroke. Parke, B., said : " According to the rule of law
on this subject and the whole case turns upon the applica-
tion of that rule no precise words are necessary to consti-
tute a covenant, provided we are able to collect an agree-
ment by the parties that a certain thing shall be done, that
will be sufficient to enable us to say that a covenant is
created: but we must be satisfied that the language does
9 O O
not merely show that the parties contemplated that the
thing might be done, but it must amount to a binding
agreement upon them that the thing shall be done. Now
it is impossible to read the covenants of this lease without
supposing that the parties contemplated that the pits would
probably be made, for it cannot be supposed that the
lessees would enter into such a lease as this without intend-
ing to work the mines ; and I think it appears, from the
different parts of this instrument, that if the mines were
worked, the parties thought they would be worked by
means of pits made on the demised premises ; but they
have not introduced words into the indenture making it
obligatory upon them to work at all ; the consequence is,
that there is not any such covenant as imposes an obligation
on the defendants to make a pit" (g).
Construe- In an action upon a covenant, or other written contract,
venant to" ^ * S tne ^ u ty ^ tne J U( % e to state to tne J urv ^ ts constru <>
be stated tion, as a matter of law, or to explain to them how far its
by*he iry construction may be modified by evidence or usage, when
judge. such evidence is admissible ; and in cases where such evi-
dence is not admissible, and the construction of the con-
tract is a question of law, his omitting to direct the jury as
to its construction is a misdirection ; and in an action on a
covenant in a demise of coal mines, accompanied by a
proviso that in case the coals, so far as the same could be
fairly wrought, should be worked out prior to the expira-
(y) James v. Cochrane, 7 Ex. 170; 8 Ex. 556.
SECT. n.J COVENANTS. 303
tion of the term, the rent should cease, it was held a mis-
direction in the judge to leave the meaning of that proviso,
especially with reference to the words " fairly wrought," to
the jury, upon evidence as to the impossibility of working
the mine at a profit ; the question of profit having no bear-
ing upon the proviso, which regarded only the manner of
working ; and the construction of which was a question of
law for the judge to determine by his direction (h).
A mining lease, containing a covenant by the lessee not Equitable
to assign without the consent of the lessor ; the lessee made a 881 ^ 1166 -
an agreement with three other persons to give up his right
in the lease to them, and to execute all necessary deeds to
cany the arrangement into effect, and that in the mean-
time the agreement should have the same force as if
such deeds had been executed; no consent of the lessor
had been obtained, nor were any such deeds executed ;
the three persons entered into possession and worked the
mines, and after a time, the three assigned all their inte-
rest in the mines and other property comprised in the lease
to a man of straw ; and it was held (overruling a decision
of the Master of the Rolls), that the three being mere
equitable assignees of the lease were not liable to the les-
sor for the rents and covenants in the original lease for the
time they were in possession of the property demised. The
relation between landlord and tenant is legal, and not
equitable (i).
In a lease of premises, W. covenanted to erect, within a Bank-
certain time, a steam-engine and other machinery for the ru P tc y
purpose of carrying on the business of a shipwright, and
that he would not remove, but would yield up such ship-
wright's machinery to the lessors at the expiration or deter-
mination of his term, without any payment, provided that
such covenant was not to apply to any machinery erected
by W. for any other purpose than that of carrying on the
business of a shipwright ; it was further agreed, that if
W. should become bankrupt, the lessors might re-enter
the premises, and take possession of the shipwright's ma-
0) Griffiths v. Rigby, 25 L.J. Ex. (') Cox v. Bishop, 26 LJ. Ch.
284. 389.
304 LEASES. [CHAP. xiv.
chinery as their own property ; W. entered, and erected
machinery- for the purpose of carrying on the business of a
shipwright, and also other machinery ; he afterwards be-
came bankrupt, and his assignees took possession of the
premises and of the last-mentioned machinery, and before
the expiration of a reasonable time for removing such ma-
chinery, the lessors prevented the assignees from removing
it ; but it was held, that the assignees had a good cause of
action ; that according to the terms of the covenants of the
lease, the lessors were on determination of the tenancy by
bankruptcy to become entitled to the shipwright's ma-
chinery only, and that the other machinery belonged to
the assignees of the bankrupt, who must have a reasonable
time, after the expiration of the tenancy, to remove such
machinery (j).
When co- J. S. granted a lease of a coal mine to E. S. for a term
nrfer^o 10 ^ vears at a rent or rova %~ f one-eighth of the value of
arbitration the coal mine, and E. S. covenanted to raise at least 4000
18 V01 ' tons, and it was thereby agreed between the parties that
if any difference or question should arise between them
touching any covenant, matter, or thing expressed in the
deed, or the meaning thereof, it should be settled by two
arbitrators, to be nominated within two months after the
difference arose ; with mutual covenants to obey and per-
form the award, and not to bring any action at law or in
equity without first submitting all matters to arbitration ;
and it was held (Martin, B., dubitante), that as the agree-
ments and covenants to refer were absolute to oust the
jurisdiction of the superior courts, they were void for that
purpose, and could not be pleaded in bar to an action for
not raising 4000 tons of coal (k).
To yield up Where a lessee of a coal mine had covenanted at the
repair. en( j Q f a term ^ o yjg]^ U p tne wor ^ s an( j m i n es, and all
ways and roads, in such good repair, order,, and condition,
that the works might be continued and carried on by the
0') Stansfeld v. the Mayor, Alder- (&) Horton v. Sayer, 29 L.J. Ex.
men, and Burgesses of Portsmouth, 4 28.
C.B. N.S. 120.
SECT, ir.] COVENANTS. 305
lessor, it was held that such covenant did not include
wooden sleepers used for the purpose of a railway (I).
A lessor of a mine or vein of coal, lying under certain Quiet en-
lands, covenanted that the lessee should and might peace- J 5 m
ably and quietly have, hold, occupy, possess, and enjoy the
mine, without any let, suit, trouble, molestation, interrup-
tion, or disturbance whatsoever ; the lessor in working
ironstone, lying between the surface of the soil and the
demised coal, caused part of the roof of the coal mine to
crush and fall in, and to be flooded ; the working of the
ironstone was done in a workmanlike manner ; but it was
nevertheless held, that these acts constituted a breach of
the covenant, for which the lessee might maintain an
action, and being continued up to the time of the action,
also entitled him to an injunction restraining the lessor from
working the ironstone within such a distance of the surface
as interfered with the lessee getting the coal with full ad-
vantage and profit (in). It has also been held, that there
is in every demise an implied contract for quiet enjoyment,
but not for good title ; a similar contract is not implied in
an agreement to give a lease containing a covenant for
quiet enjoyment ; or on a parol tenancy from year to year
beyond the duration of the lessor's interest (n).
Whether a covenant is joint, or several, or both, is a joint and
question which was raised in the case of Bradburne v. Bot- several
covenants.
field (o), and the dictum of Mr. Baron Parke in that case
would seem to deserve attention. He says : " In the case
of Sorsbie r. Park (jt>), Lord Abinger and myself, on refer-
ring to the established rule, as laid down by Lord Chief Jus-
tice Gibbs in the case of James v. Emery (q), approved of
Mr. Preston's qualification and explanation of it in his edi-
tion of the Touchstone, 166, namely, that, if the language of
the covenant was capable of being so construed, it was to
be taken to be joint or several, according to the interest of
the parties to it. Mr. Preston adds, ' that the general rule
(7) Beaufort v. Bates, 31 L.J. Ch. 31 L.J. Q.B. 257 ; Tenfold v. Abbott.
481. 32 L.J. Q.B. 67.
(m) Shaw v. Stenton, 2 H. & N. () 14 M. & W. 572.
858 ; 27 L.J. Ex. 253. (/;) 12 M & W. 146.
(n) Hall v. City of London B. Co., (j) 2 Moore, 195.
306 LEASES [CHAP. xrv.
Joint and proposed by Sir Vicary Gibbs, and to be found in several
volants. 00 " books, would establish that there was a rule of law too
powerful to be controlled by any intention, however ex-
press ;' and I consider such qualification to be perfectly
correct, and at variance with no decided case, as it is surely
as competent for a person, by express joint words, strong
enough to make a joint covenant, to do one thing for the
benefit of one of the covenantees, and another for the be-
nefit of another, as it is to make a joint devise where it is
for the benefit of one. I mention this because the Court
of Queen's Bench, in the case of Hopkinson v. Lee (>),
have supposed, that Lord Abinger and myself had sanc-
tioned some doctrine at variance with the case of Anderson
v. Martindale (s), and Slingsby's case (f) which it was fur-
ther from my intention, and, I have no doubt, from Lord
Abinger's, to do ; it being fully established, I conceive, by
those cases, that one and the same covenant cannot be
made both joint and several with the covenantees. It may
be fit to observe, that a part of Mr. Preston's explanation,
that, by express words, a covenant may be joint and seve-
ral with the covenantors or covenantees, notwithstanding
the interests are several, is inaccurately expressed: it is
true only of covenantors, and the case cited (from Salkeld,
p. 393), relates to them ; probably Mr. Preston intended
no more, and I never meant to assent to the doctrine that
the same covenant might be made, by any words, however
strong, joint and several, where the interest was joint ;
and it is this part, I apprehend, of Mr. Preston's doctrine
to which the Court of Queen's Bench objects. I think it
right to give this explanation, that it may not be supposed
that there is any difference on this point with the Court of
Queen's Bench." And in the case of Hacldon v. Ayers (w),
Lord Campbell says : " When there is a separate interest
apparent, one of several covenantees may maintain a sepa-
rate action, unless there are such words as to make the
covenant clearly joint and not several " (u).
(r) 14 L.J. Q.B. 104. (v) See also Duke of Northumber-
00 1 East 497. land v. Errington, b T. R. 522 ; Mills
(0 5 Rep. 18 b . v . Ladbroke. 13 L.J. C.P. 122.
() 28 L.J. Q.B. 113.
SECT, n.] UNDER POWERS. 307
A general power to grant leases will enable the person LEASES
. . . -11 UNDER
to whom it is given, to grant a lease or a mine already POWERS.
opened, and if mines are included in the power, unopened
mines also, even if waste is prohibited (??). In the case of
Campbell v. Leach, a power was given by a settlement to w . hen
' * . mines can
lease lands except the capital messuage and warren, ). The word rent, in powers of
leasing, has been construed to mean, not money merely,
but any equivalent adapted to the nature of the demise;
therefore, upon a lease of mines, a due proportion of the pro-
rent.
(2) Daly v. Beckett, 24 Beav. 114.
(a) Scott v. Steward, 27 Beav. 367.
(i) Morris v. Rhydydefed Colliery
Co., 28 L.J. Ex. 119.
SECT, u.] UNDER POWERS. 309
duce may be reserved as a render in lieu of money, when
the power requires a " rent" generally to be reserved (c).
Every settlement of lands should, therefore, contain a
power to grant leases with or without impeachment of
waste; and to prevent, as far as possible, any differences
of opinion on the nature and extent of the power, the
power should state whether opened or unopened mines, or
both, and what minerals or seams of coals are to be de-
mised under the power ; and the power should be so worded
as to include a way-leave, as in a recent case it has been
decided that an ordinary power to lease will not authorize
a lease of way-leaves (d).
A lease which exceeds the power under which it is Equitable
granted is void at law, but it will be supported in equity |?" 8 ^
for such an extent as is authorized by the power (e) ; but if relief,
the power has been so far exceeded as to render it difficult
to distinguish between the excess and the right exercise of
it, the lease will not be supported ; as, for instance, in the
case of one entire rent being reserved for distant lands,
which are not both within the power(/). The date of a
lease is prima facie, but not conclusive, evidence of the
execution of the instrument on that day, and in powers the
date of an instrument may imply that the power had not been
duly executed; it will, therefore, be competent to show,
notwithstanding the date, that the power was followed (y).
In all cases where it has been attempted to exercise a Statutory
power in a regular way, which afterwards proves defective, P rovislons -
equity will assist in rectifying the mistake or error, con-
sistently with a regard to the interests of parties entitled a
priori as well as in reversion (h) ; and recently several Acts
of Parliament have been passed, for granting relief against
defects in leases made under powers of leasing ; in addition
to several other Acts conferring enlarged powers of leasing
upon persons interested under settlements (i).
(c) Campbell v. Leach, Ambl. 740 ; (/) Doe d. Douglas v. Lock, 2 Ad.
Bassett's case cited therein, p. 748. & El. 705 ; Doe v. Rendle. 3 M. & S.
(d) Ricketts v. Bell, 1 De G. & S. 335. 99 ; Doe v. Stephens, 6 Q.B. 208.
(e) Campbell v. Leach, Amb. 740 ; () Minshall v. Lloyd, 2 M. ft W. Addenbrooke, 13 M. & W. 174, s.c. 14,
459 ; Lyder. Russell, 1 B. & Ad. 394; L.J. Ex. 169 ; Stansfield v. Mayor of
Penton v. Robart, 2 East, 91 ; Davis Portsmouth, 27 L.J. C.P. 124.
322 TITLE BY WILL. [CHAP. xiv.
behalf), then all such buildings, engines, and machinery
shall be the property of the tenant, and shall be removeable
by him, notwithstanding the same may consist of separate
buildings, or that the same or any part thereof may be
built in or permanently fixed to the soil, so that the tenant
making any such removal do not in anywise injure the land
or buildings belonging to the landlord, or in case of injury,
that he put them in like plight and condition, or in as good
plight and condition as they were in before the erection of
anything so removed : Provided nevertheless that no tenant
shall, under the provision last aforesaid, be entitled to re-
move any such matter or thing as aforesaid without first
giving to the landlord or his agent one month's previous
notice in writing of his intention so to do ; and thereupon it
shall be lawful for the landlord, or his agent on his au-
thority, to elect to purchase the matters and things so pro-
posed to be removed, or any of them, and the right to
remove the same shall thereby cease, and the same shall
belong to the landlord; and the value thereof shall be
ascertained and determined by two referees, one to be
chosen by each party, or by an umpire to be named by such
referees, and shall be paid or allowed in account by the
landlord who shall have so elected to purchase the same.
TITLE BY WILL.
When mines are devised separately from the minerals, are unopened as well as
opened mines included in the devise? special provision, in Wills necessary. Suc-
cession Duties Act decision as to unopened mines.
What WHEKE, before the new Statute of Wills (7 Will. IV.
and 1 Vic., c. 26), an estate was devised to one person, and
the pits and veins of clay under the same estate to other
persons, it was held that the latter devise comprised only the
pits and veins of clay which at the date of the will (y) were
open and being worked ; whether under the new statute
(y) Brown v. Whiteway, 8 Hare, 242 ; Clavering i: Clavering, id. 388.
150; WhitfiehU-. Bewit, 2 P. Wms.
SECT, vi.] TITLE BY WILL. 323
such a devise would pass all the minerals, whether open or Do un-
not, or only the pits and veins open at the date of the will, ^^g pass
or at the time of the death of the testator, are questions which under a
do not seem to have been yet decided. Lord St. Leonards m i nes ?
has expressed an opinion in favour of such a devise passing
all open veins at the time of the death of the testator (z).
The question would not arise where the soil was demised
without any mention of the minerals, if the devisor was
also owner of the minerals, as in that case the minerals
would pass under a devise of the land, unless a contrary
intention appeared on the face of the will. But where
separate devises are made, it should be distinctly stated
whether unopened as well as opened mines are to pass, and
where there are several seams or strata of coal, whether
all or which seam or stratum. There are other circum-
stances connected with a devise of minerals which deserve
attention. Where, for instance, a testator directed that his
mines were to be carried on after his decease, without
setting apart funds for the purpose, it was first held that
all the assets, both real and personal, were liable to be
employed in and about the necessary prosecution of the
mine; but, on appeal, a contrary decision was pro-
nounced (a). The income of a colliery held on lease was
devised by a, testator to his wife for life, and, in conse-
quence of a provision being made for the possible breach
of covenants under the lease, it was held that the funds
must be allowed to accumulate till the expiration of the
lease (I). In another case, a devise of collieries was made
to the wife of testator, whilst the waggon-ways, rails, and
other things were given to the executors, and it was held
that the coals raised belonged to the widow (c). A testator
gave " all property belonging to him in the county of
W " to his brother and his children in succession ; the
testator was entitled to collieries, in respect of which debts
(z) See Lord St. Leonards, Real (5) Fletcher v. Stevenson, 3 Hare,
Property, edit. 1862, p. 373. SCO, s.c. 13 L.J. Ch. 202.
fa) M'Xeillie v. Acton, 22 L.J. Ch. (c) Stuart v. Earl of Bute, 3 Ves.
820 ; 23 L.J. Ch. 11. 212 ; 11 Ves. G57.
Y2
324 TITLE BY WILL. [CHAP. xiv.
were due to him, and it was held that these debts passed
under the above bequest (d).
Succession Under the Succession Duties Act, 16 & 17 Vic. c. 51,
utiesAct. p rov isi on i s made for calculating the value of any opened
mine ; and by section 26, it is provided that " the yearly
value of any manor, opened mine, or other real property of
a fluctuating yearly income, shall either be calculated upon
the average profits or income derived therefrom after de-
ducting all necessary outgoings, during such a number of
preceding years as shall be agreed upon for this purpose
between the commissioners and the successor, before the
first payment of duty on the succession shall have become
due ; or, if no such period shall be agreed upon, then the
principal value of such property shall be ascertained, and
the annual value thereof shall be considered to be equal to
interest calculated at the rate of 3 per centum per
annum on the amount of such principal value." In the
case of the Attorney-General v. the Earl of Sefton (
or his tenants of the collieries or coal mines" " have sunk Broadbent
pits in the freehold lands in Halton" " for the working of r ' Wilkes>
the said collieries there to get .coals coming and arising from
thence," the lord and his tenants " have used and been ac-
customed to throw, cast, and place" " the earth, clay,
stones," " coming therefrom together in heaps on the land
near to such pits" " there to remain and continue, and to
place wood there for the necessary use of the said pits,
and to take and carry away from thence with carts"
"part of the said coals so laid and placed there, and to
burn and make into cinders there other part of the said
coals" " at his and their will and pleasure." And Lord
Chief Justice Willes, after pointing out the uncertainty of
the alleged custom, proceeded to say that " no custom can
be more unreasonable. It may deprive the tenant of the
whole profits of the land ; for the lord or his tenants may
dig coal-pits when and as often as they please, and may in
such case lay their coals, &c., on any part of the tenant's
land, if near to such coal-pits, at what time of the year they
please, and may let them lie there as long as they please ;"
" so they may be laid on the tenant's land and continue
there for ever, though it may be more convenient for the lord
to bring them on his own land, which is absurd and unrea-
sonable." The case was removed by writ of error from the
Court of Common Pleas into the Court of Queen's Bench,
(o) Wilkinson v. Proud, 11 M. & (?) Atty.-Genl. v. Mathias, 27 L.J.
W. 33 ; Constable v. Nicholson, 14 Ch. 766.
C.B. N.S. 230. (r) Willes, 360 ; Wilkes v. Broad-
Op) Blewitt r. Tregonning, 3 Ad. & bent, 1 Wilson, 63 ; 2 Str. 1224.
Ell. 554, 588.
330 PRESCRIPTION. [CHAP. xv.
after having been argued several times, but the judgment
was unanimously affirmed. Lord Chief Justice Lee said (s)
Unreason- that the question was, "whether this was a reasonable lex
able lex J QC ^ w hich they held it not to be, inasmuch as it laid a great
burden upon the land of the plaintiff, without any conside-
ration appearing, either public or private. That it saA-oured
of an arbitrary power, and might, as laid, put it in the power
of the lord totally to deprive the tenant of the benefit of the
land, there being no restriction in time, and the word near
was too vague and uncertain." The report in Wilson,
after mentioning the vagueness of that word, remarks also
that the custom is " very unreasonable, for it laid such a
great burden upon the tenant's land, without any conside-
ration or advantage to him, as tended to destroy his estate,
and defeat him of the whole profits of his land, and savours
much of arbitrary power, being pleaded to be at the will
and pleasure of the lord, and to do it as often and when he
pleases ;" " and what was said at the bar touching the public
utility of coal-pits to the realm cannot be considered, for
the pits may be worked without this custom, for ought that
appears to the contrary ;" " and to support this custom
would be to take away the whole benefit of the land granted
originally to the copyholder by the lord ; and it is a void
custom, and contrary to law, that the lessor shall have
common encounter sou demise quia est part del chose
demise (i), and this custom being pleaded to be at the will
and pleasure of the lord, tends to make him judge in his
own cause, which the law will not endure."
Great reliance, however, has been placed on some deci-
sions which upheld customs derogatory from the lord's grant.
Bateson r. In Bateson v. Green (M), the " lord of a manor defended
himself successfully against a commoner whose extent of
common he had curtailed by taking clay, on proof that the
lord had constantly done so." The language of Lord
Kenyon in that case is certainly large, though considered
by Bayley, J., in Arlett v. Ellis (t?), to be subject to some
00 Wilkes v. Broadbent, 2 Str. (u) 5 T. R. 411.
122 5. (v) 7 B. & C. 346.
(0 See White v. Sayer, Palm. 212.
CHAP, xv.] CUSTOM. 331
restriction. If, indeed, Lord Kenyon's observations are
taken to import that a lord, after granting rights of
common, may help himself to any portion of the common
to the exclusion of his grantees, such a doctrine is in-
compatible with many other cases (io\ and cannot be sup-
ported in principle. The two decisions (x) in the notes to
Bateson v. Green are much more cautiously worded ; and
in that of Folkhard v. Hemmell, which is one of the cases
so cited, Lord Chief Justice De Grey expressed himself
conformably to what we consider the true legal principle :
" The defendants justify under the usage. I will not call
it a custom, because I look on it as a reserved right of the
lord."
And Lord Denman, when reviewing the above-mentioned Hilton v.
cases (in Hilton v. Lord Granville) (y), said : " Whatever Granville -
the lord can reasonably be supposed to have reserved out of
his grant the usage may adequately prove that he did reserve.
But a claim destructive of the subject-matter of the grant
cannot be set up by any usage. Even if the grant could
be produced in specie, reserving a right in the lord to de-
prive his grantee of the enjoyment of the thing granted,
such a clause must be rejected as repugnant and absurd.
That the prescription or custom here pleaded has this de-
structive effect, and is so repugnant and void, appears to us
too clear from the simple statement to admit of illustration
by argument."
And in Clayton v. Corby (z), Lord Denman said that Clayton >-.
" in all cases of a claim of right in alieno solo, whether im-
mediately or in any degree resembling the present, such
claim, in order to be valid, must be made with some limita-
tion and restriction. In the ordinary case of common ap-
purtenant, the right cannot be claimed for commonable
cattle without stint, and to any number ; but such right is
measured by the capability of the tenement in question to
maintain the cattle during the winter ; ' levancy and cou-
(w) Ante, p. 188. Q/) o Q.B. 730 ; Blackett v. Brad-
(ar) Clarkson v. Woodhouse, cited ley, 8Jur. N.S. 588; and ante, p. 188.
5 T.R. 412 ; Folkliard v. Hennett, (z) 5 Q.B. 419 ; Bailey v. Stevens,
cited 5 T.R. 417. 31 L.J. C.P. 22G.
332 PRESCRIPTION. [CHAP. xv.
Customs chancy' must be averred and proved. Again, in the case
certain 6 f common of estovers, or a liberty of taking wood, called
in the books house-bote, plough-bote, and hay-bote, such
liberty is not wholly vague and indeterminate, but confined
to some certain and definite use. The like of the common
of piscary. The nature of these rights is thus com-
pendiously, but we believe accurately, given by Mr. Justice
Blackstone (a). ( These several species of commons do all
originally result from the same necessity as common of
pasture viz. for the maintenance and cam-ing on of
husbandry : common of piscary being given for the suste-
nance of the tenant's family ; common of turbary and fire-
bote for his fuel ; and house-bote, plough-bote, cart-bote,
and hedge-bote, for repairing his house, his instruments of
tillage, and the necessary fences of his grounds ;' that is
for a certain and definite purpose. In some of these
instances, the thing taken is more or less immediately re-
newable ; and it would seem strange if in these such pre-
cision and certainty are required, but less in others where
the claim is larger, extending, as in the present case, to a
right to disturb and remove a portion of the soil itself.
Upon reference, however, to the authorities, we find that,
in cases not substantially distinguishable from the present,
the same rule does, as in reason it ought to do, prevail."
And after referring to the cases of Wilson v. Willes (b)
and Peppin v. Shakespear (c), his lordship proceeded to say
" that the objection of vagueness and uncertainty was ap-
plicable to the plea in Clayton v. Corby, and that the nature
of the tenement so called, a brick-kiln, leads to no conclu-
sion, one way or the other, as to the extent of the claim and
demand upon the soil of the plaintiff. It may have been, at
the time of the trespass, of any dimensions and capacity. It
may have been, during the thirty years of alleged enjoy-
ment, continually varying ; and consequently the quantity
of clay required for the purpose of making bricks thereat
may have varied also. There is no limit. No amount
of clay, measured by cart-loads or otherwise, required, no
(a) 2 Comm. 35. M 6 T.R. 748.
(6) 7 East, 121.
CHAP, xv.] CUSTOM. 333
number of bricks, estimated by hundreds or thousands,
claimed to be made, is given or attempted. What is it,
therefore, but an indefinite claim to take all the clay ( out
of and from the said close in which,' &c., or, in other
words, to take from the plaintiff, the owner, the whole
close ? We are of opinion, therefore, that the plea can-
not be sustained."
The expression of the court in the case of Hilton v. Lord Cariyon v.
Granville, " that a claim destructive of the subject-matter LoveriD -
of the grant could not be set up," was commented upon in
the more recent case of Cariyon v. Levering (d), from which
an inference may be drawn that such a doctrine would not
be carried very far against a prescriptive right which was
established by unimpeachable evidence. But no case, except
it be Rogers v. Brenton (e), has yet occurred to shake the
ancient rale of law that a profit a prendre in another's soil
cannot be claimed by custom, for this among other reasons,
that a man's soil would thus be subject to the most grievous
burdens in favour of successive multitudes of persons who
could not release the right (/) ; and Rogers v. Brenton has
never been upheld except in support of an alleged custom
in Cornwall the lex loci, in fact, of a province and is
now of doubtful authority (g).
In the recent case of Constable v. Nicholson (A), the Constable
judges held that, although a profit a prendre out of another v - Nicljo1 -
man's land cannot be claimed by custom, it might be
claimed as an easement. All the cases in which any such
right has been held to be good by custom, must, therefore,
be taken to have been overruled. Rogers v. Taylor (i),
which supported such a doctrine, supported it simply as an
easement. The only way that such a right can be main-
tained is by prescription ; and, in order to make out a pre-
scriptive right, it must be claimed as annexed to land, or
((/) 26 L.J. Ex. 257; see also ar- (g) Constable v. Nicholson, 14 C.B.
gument in Rogers v. Brenton, 17 L.J. N.S. 238, and post, "Tin-Bounding."
Q.B. 34. (A) Constable v. Nicholson, 14 C.B.
(e) 10 Q.B. 26; 17 L.J. Q.B. 34. N.S. 230; 11 W.R. 698.
(/) Atty.-Genl. v. Mathias, 27 L.J. () 1 II. & N. 706.
Ch. 766 ; Race v. Ward, 4 Ell. & B.
705.
331
PRESCRIPTION.
[CHAP. XT.
Webb v.
Bird.
Blackett r.
Bradley.
Proof of
prescrip-
tion and
custom.
2 & 3 Will
IV. c. 71.
as having been created by a grant, or as a right handed
down from ancestor to heir, without intermission. If it be
not annexed to land, it must have been created by grant.
In Webb v. Bird(J), it was maintained, in accordance
with the judgment in Chasemore v. Eichards (&), that the
prescription of a grant from long continued enjoyment
only arises when the person against whom the right is
claimed might have interrupted or prevented the exercise
of the subject of the proposed grant. In the case of
Blackett v. Bradley (7), the law alleged, first, a prescriptive
right, to search for, win, and work coal mines lying under
a common, without leaving any support to the surface, or
making or paying any satisfaction for any injury that
might be caused by such working; and secondly, that
the right had been exercised more than 40 years ; but
it was decided, on the authority of Hilton v. Lord Gran-
ville, that such a prescriptive right w r as bad on the face of
it, at the same time it was admitted, that although to some
extent the reasoning of the court in the latter case had
been impugned, the decision had not been overruled.
Formerly legal proof both of a prescription and custom
was required from the time " whereof the memory of man
runneth not to the contrary." This period was limited to
the beginning of the reign of Richard I. ; and, although it
was not necessary to prove the usage from that period, yet
it was sufficient to invalidate the title if the usage was
O
proved to have commenced since that period (in). It was,
therefore, considered necessary to make some provision by
virtue of which a title gained by prescription or custom
could not be disputed after a certain defined period, and,
accordingly, an Act of Parliament, 2 & 3 Will. IV. c. 71,
was passed, entitled "An Act for shortening the Time
of Prescription in certain Cases." The Act enacts, " That
no claim which might be lawfully made at the common
j) 8 Jur. N.S. 621.
k) 29 L.J. Ex. 81 ; 7 H.L. Ca. 749.
7) 8 Jur. N.S. 588.
m) Litt. 170; Co. Litt. 115"
877 ; Rex . Joliffe, 2 B. & C. 54 ; 3
D. & R. 240; Curtis v. Daniel, 10
East, 273 ; Doe d. Fenwick v. Reed,
5 B. & Aid. 232 ; Codling v. Johnson,
Mayor of Hull v. Homer, Co\vp. 109 ; 9 B. & C. 933 ; Pen-warden v. Ching,
Jenkins v. Harvey, 1 Cro. M. & R. Moo. & M. 400.
CHAP, xv.] CUSTOM. 335
law, by custom, prescription, or grant, to any right of com- Profits
mon or other profit or benefit to be taken and enjoyed ^en^t
from or upon any land, except such matters and things as to be de-
are therein specially provided for, and except tithes, rent, e
and services, shall, where such right, profit, or benefit shall
have been actually taken and enjoyed by any person claim-
ing right thereto without interruption for the full period of
30 years, be defeated or destroyed by showing only that
such right, profit, or benefit, was first taken or enjoyed at
any time prior to such period of 30 years, but nevertheless
such claim may be defeated in any other way by which the
same is now liable to be defeated; and when such right,
profit, or benefit, shall have been so taken and enjoyed as
aforesaid for the full period of 60 years, the right thereto
shall be deemed absolute and indefeasible, unless it shall
appear that the same w r as taken and enjoyed by some con-
sent or agreement expressly made or given for that purpose
by deed or writing" (n).
" That no claim which may be lawfully made at the Easements.
common law, by custom, prescription, or grant, to any way
or other easement, or to any watercourse, or the use of any
water, to be enjoyed or derived upon, over, or from any
land or water, w^hen such right shall have been actually
enjoyed by any person claiming right thereto without in-
terruption for the full period of 20 years, shall be defeated
or destroyed by showing only that such right was first en-
joyed at any time prior to such period of 20 years, but
nevertheless such claim may be defeated in any other way
by which the same is now liable to be defeated ; and where
such right shall have been so enjoyed as aforesaid for the
full period of 40 years, the right thereto shall be deemed
absolute and indefeasible, unless it shall appear that the
same was enjoyed by some consent or agreement expressly
given or made for that purpose by deed or writing (o).
" Each of the respective periods of years hereinbefore
mentioned shall be deemed and taken to be the period next
before some suit or action wherein the claim or matter to
which such period may relate shall have been or shall be
(n) Sec. 1. (o) Sec. 2.
336 PRESCRIPTION. [CHAP. xv.
brought into question, and that no act or other matter
shall be deemed to be an interruption, within the meaning
of this statute, unless the same shall have been or shall be
submitted to or acquiesced in for one year after the party
interrupted shall have had or shall have notice thereof,
and of the person making or authorizing the same to be
made ( p).
" That in the several cases mentioned in and provided
for by this Act, no presumption shall be allowed or made
in favour or support of any claim, upon proof of the exer-
cise or enjoyment of the right or matter claimed for any
less period of time or number of years than for such period
or number mentioned in this Act as may be applicable to
the case and to the nature of the claim (q).
What time " That the time during which any person otherwise
duded. ~ capable of resisting any claim to any of the matters before
mentioned shall have been or shall be an infant, idiot, non
compos mentis, feme covert, or tenant for life, or during
which any action or suit shall have been pending, and
which shall have been diligently prosecuted, until abated
by the death of any party or parties thereto, shall be ex-
cluded in the computation of the periods hereinbefore men-
tioned, except only in cases where the right or claim is
hereby declared to be absolute and indefeasible (?*).
"That when any land or water upon, over, or from
which any such way or other convenient watercourse or
use of water shall have been or shall be enjoyed or derived
hath been or shall be held under or by virtue of any term
of life, or any term of years exceeding three years from
the granting thereof, the time of the enjoyment of any
such way or other matter as herein last before mentioned,
during the continuance of such term, shall be excluded in
the computation of the said period of 40 years, in case the
claim shall within three years next after the end or sooner
determination of such term be resisted by any person
entitled to any reversion expectant on the determination
thereof (s).
(.p) Sec. 5. (f) Sec. 7.
(?) Sec. 6. () Sec. 8.
CHAP, xv.] CUSTOM. 337
" That in all actions upon the case and other pleadings, pleadings,
wherein the party claiming may now by law allege his
light generally, without averring the existence of such
right from time immemorial, such general allegation shall
still be deemed sufficient, and if the same shall be denied,
all and every the matters in this Act mentioned and pro-
vided, which shall be applicable to the case, shall be admis-
sible in evidence to sustain or rebut such allegation ; and
that in all pleadings to actions of trespass, and in all other
pleadings wherein before the passing of this Act it would
have been necessaiy to allege the right to have existed
from time immemorial, it shall be sufficient to allege the
enjoyment thereof as of right by the occupiers of the tene-
ment in respect .whereof the same is claimed for and during
such of the periods mentioned in this Act as may be appli-
cable to the case, and without claiming in the name or
right of the owner of the fee, as is now usually done ; and
if the other party shall intend to rely on any proviso, ex-
ception, incapacity, disability, contract, agreement, or other
matter hereinbefore mentioned, or on any cause or matter
of fact or of law not inconsistent with the simple fact of
enjoyment, the same shall be specially alleged and set
forth in answer to the allegation of the party claiming, and
shall not be received in evidence on any general traverse
or denial of such allegation" (t).
The Act was not to extend to Scotland or Ireland (w) ;
but by 21 & 22 Vic. c. 42, the provisions of the said Act
were from and after the 1st day of January, 1859, to ex-
tend and apply to Ireland.
The Prescription Act was intended to prevent old rights General
from being defeated by proof that they could not by possi- p^gg* r f
bility have existed at the period of legal memory (u), and tion Act.
since the Act, the enjoyment of the right need now only be
proved for the period specified in the Act according to the
nature of the claim. The alleged right must not have been
broken by any adverse act on the part of the claimant (w) ;
(0 Sec. 5. M. Co. v. Donald, 4 H. & N. 8 , Wilson
(u) Sec. 9. v. Stanley, 12 Ir. C.L. 350.
(t>) Per Martin, B., in Natural G. (w) Bailey v. Appleyard, 8 Ad. &
Z
338 PRESCRIPTION. [CHAP. xv.
and where there is legal possession or enjoyment of the
rio-ht, although no actual possession, there can be no adverse
O t O *
possession ; if therefore it is intended to rely upon interruption
of the right, some actual obstruction to its enjoyment must
be shown payment of rent, or a deviation from the right
as in the case of ways if duly authorized, is not sufficient (#).
To establish a right under the Act there must be an
abandonment of possession by one person followed by the
actual and continued possession of another person for the
period specified in the Act (y), and as an interruption to be
effectual must have been acquiesced in for one year, quiet
enjoyment of the right for nineteen years and a small part
of another year will establish a right (z). But evidence of
interruption for any period, however short, may be given to
show either that there never was a right or in proof of a
parol license (a). Whether there has been an interruption
of the right is a question for the jury (6). In pleading a
title under the above Act 2 & 3 Will. IV. c. 71, it is not
sufficient to aver the enjoyment for twenty years, but it
must also be alleged to have been done " as of right" (c). A
Entire prescription to enter and dig for minerals, paying reasonable
prescrip- compensation for surface damage, is an entire prescription,
and will not support the affirmative of an issue taken upon
a plea justifying under a prescriptive right to enter and dig
for minerals if the qualification for making compensation
be omitted (d). Whenever the validity of a prescription or
Ell. 107; Wright v. Williams, 1 M. (a) Eaton v. Swansea Waterworks
& W. 77; Lowe v. Carpenter, 20 L.J. Co. 20 L.J. Q.B. 482; Plasterers' Co.
Ex. 374 ; Carr v. Foster, 3 Q.B. 581 ; v. Parish Clerks' Co. 20 L.J. Ex. 362.
Payne v. Shedden, 1 M. & Rob. 382, (6) Carr v. Foster, 3 Q.B. 581 ;
cited 3 Q.B. 583 ; Monmouthsh. Canal Battishill v. Reed, 18 Com. B. 696.
Co. v. Harford, 1 Cro. M. & R. 614 ; (c) Holford r. Hankinson, 5 Q.B.
Tickle v. Brown, 4 Ad. & E. 383 ; 584 ; Onley v. Gardiner, 4 M. & W.
Beasley r. Clarke, 2 Bing. N.C. 70o. 496 ; Beasley r. Clarke, 2 Bing. N.C.
(x*) Reg. v. Chorley, 12 Q.B. 515; 705; Tickle r. Brown, 4 Ad. & Ell.
Hall v. Swift, 6 Scott, 167; Blan- 369; Solomon's case, 4 H. & N. 585;
chard v. Bridges, 4 Ad. & Ell. 176. Livett v. Wilson, 3 Bing. 115 ; Rogers
(,y) M'Donnellf.M'Kinty, lOIr. L. v. Taylor, 26 L.J. Ex. 203; s.c. 1
Rep. 525; Smith v. Lloyd, 9 Ex. 562; H. & N. 706.
ante, pp. 154-156. (d) Paddock r. Forrester, 11 L.J.
(z) Flight v. Thomas, 8 Cl. & F. C.P. 107; s.c. 3 Man. & G. 903.
242, 11 Ad. & Ell. 695; Parker v.
Mitchell, 11 Ad. & Ell. 788; Cooper
v. Hubbuck, 6 L.T. N.S. 826.
CHAP, xv.] CUSTOM. 339
custom lias been established at law or in equity, the judg-
ment or verdict at law, or the decree in equity, may be
given in evidence in any proceedings brought by others
claiming under the same right, but the verdict of a jury is
not always conclusive (0). And depositions used in a suit,
whether in reference to the same custom or not, may also
be given in evidence upon a trial of any other disputed
question (/)
The Prescription Act has lately been reviewed in the Decision in
case of Wilson v. Stanley (g). The facts of the case were Ireland -
these : A lease made in 1775 by A. to T. comprised two
closes, Blackacre and Whiteacre. A mill was subsequently
built on Blackacre, which was supplied by a stream through
Whiteacre, and S., a tenant of the mill under T. and sub-
sequent tenants, enjoyed the right of water from 1818. In
1836, C., who was entitled to the reversion expectant on
T.'s lease, appointed Whiteacre to K. for life, retaining
Blackacre. The lease of 1775 expired on the 26th April,
1840. K. in 1841 demised Whiteacre to the defendant,
and in 1843 C. demised Blackacre to the plaintiff, with
the right to water sufficient for the mill as enjoyed by S.
In an action for the diversion of the water, it was held that
as during the lease of 1775 there was a unity of possession
in T., the enjoyment by S., his tenant pending that lease,
was not an enjoyment " as of right" within the meaning of
the Prescription Act, and it was also held that the user for
more than twenty years since the 26th April, 1840, con-
ferred no title to the easement under the 2nd section of the
Prescription Act, the reversion of the servient tenement
during the period being vested in K., the tenant for life.
(e) Reed v. Jackson, 1 East, 357 ; (/) Nichols v. Parker, 14 East,
City of London v. Clerke, Carth. 181; 331; Weeks v. Sparke, 1 M. & Sel.
Bull, N.P. 233 ; Biddulph v. Ather, 2 691 ; Freeman v. Phillips, 4 M. & Sel.
Wils. 23 ; Brown v. Rawlins, 7 East, 486.
429. ) 12 Ir. C.L. 345.
z2
340
LOCAL LAWS AND CUSTOMS.
[CHAP. xyr.
Requisites
of a legal
custom.
CHAPTER XVI.
LOCAL LAWS AND CUSTOMS.
IN discussing local customs, it will be well to remember
the requisites of a legal custom, as pointed out in the last
chapter ; and further, that it is incumbent upon the per-
son alleging a custom to prove it, as the court will not take
judicial notice of any alleged custom without proof (a).
Subject to these observations, we proceed to consider the
local laws and customs of :
1. CORNWALL AND DEVON.
2. SOMERSET.
3. DERBYSHIRE.
4. GLOUCESTERSHIRE.
5. THE COAL AND IRON DISTRICTS.
toms.
CORNWALL AND DEVON.
Antiquity of Customs confirmation by the Stannary Parliaments.
Statutory recognition.
Antiquity THE mining customs of Cornwall and Devon are of great
antiquity (b). Those of Cornwall were defined at the Con-
vocations or Parliaments of Tinners held in the reigns of
Elizabeth, James I., Charles I., Charles II., James II.,
and Anne, and were mostly confirmed at a convocation
held in the twenty-seventh year of the reign of George
(a) Fenn's case, 4 De G. M. & G. (6) Polwhale's Hist, of Devon, ib.
285; Bodmin United Mines, 26 L.J. Cornwall, vol. i. p. 37, edit. 1797;
Ch. 573; Hawkin's case, 2 K. & J. ante, pp. 72, 75-87.
253.
SECT, i.] CORNWALL AND DEVON. 341
II. (c). Those of Devon were defined at convocations held
in the reigns of Henry VIII., Edward VI., and Eliza-
beth (d). The convocation for^ Cornwall, held in the
second year of James II., declared as follows : " We like-
wise find that the tinners in Cornwall have time out of Confirma-
mind had and enjoyed divers and sundry liberties and pri- l lon ? f ,
vileges, which Edward the First by his charter under the customs,
great seal of England, elated at Westminster the tenth of
April, in the thirty-third year of his reign, did confirm, and
granted some new privileges, as by that charter allowed in
Parliament in the five and thirtieth year of the reign of
Edward the First, and was again confirmed in the first
year of Edward the Third, and the seventeenth of Edward
the Third, it doth and may appear. And we further find
an exposition of the said charter of the three and thirtieth
of Edward the First, that was made in the Parliament
holclen in the fiftieth year of Edward the Third, which
said charter was likewise confirmed in the fifth year of the
reign of Richard the Second, in the third year of Edward
the Fourth, in the first year of Edward the Sixth, in the
first and second years of Philip and Mary, and the second
year of Queen Elizabeth. And we likewise find that King
Henry the Seventh granted a charter of pardon, with a
new grant and declaration of liberties and privileges to the
tinners of Cornwall in the three and twentieth year of his
reign, which said charter was also confirmed in the twelfth
year of the reign of Queen Elizabeth. We find likewise,
that several Convocations or Parliaments of Tinners have
been from time to time held, but in the late horrid rebellion
against our late sovereign lord King Charles the First, of
ever blessed and glorious memory, in the year 1644, the
rebels under the command of the Earl of Essex, the prince's
exchequer at Lostwythiel was plundered, and most of the
records destroyed. But we find that at a Convocation or
Parliament of Tinners held at Lostwythiel the eight and
twentieth day of September, in the two and twentieth year
of King James the First, before the Right Honourable
(c) Pearce's Stan.; Stan. Laws; Sir (rf) Act 5 Convoc. 30 Eliz. ; Hale's
Geo. Harrison's Rep. p. 11. BISS. (Lin. Inn), vol. Ixxxiii. p. 235.
342 COKNWALL AND DEVON. [CHAP. xvi.
William Earl of Pembroke, then Lord-Warden of the
Stannaries, there were several laws and constitutions made
in affirmation of our customs. W r e find further, that at
another Convocation or Parliament of Tinners held at
Lostwythiel aforesaid, the twelfth day of August in the
eleventh year of the reign of our said late sovereign lord
King Charles the First, before the Right Honourable
Philip Earl of Pembroke and Montgomery, then Lord-
Warden of the Stannaries of Devon and Cornwall, there
were several laws and constitutions made in affirmation of
our customs. And we do allow, ratify, and confirm, all the
ordinances and declarations made, declared, and ordained,
in and by the several Acts and constitutions of Convoca-
tion not altered, abridged, or made void by Act of Parlia-
ment, or by the constitutions hereinafter made and or-
dained. And we do likewise approve and confirm all our
antient and laudable customs relating to the properties and
privileges of the tinners. And for further declaration of
our customs and laws, and the ordering and settling such
matters as we think fit and necessary upon mature consi-
deration, to be altered, ordained, and settled for the better
government of the Stannaries of Cornwall, and the good
and benefit of the tinners therein, according to His Ma-
jesty's said gracious commission, granted and signified to
the Right Honourable the Lord-Warden for the settlement
of the Stannaries of Cornwall, and the redress of all the
abuses and grievances therein."
Statutory In each county, since the last Tinners' Parliament, other
usages have been claimed, and in some instances received
the sanction of the superior courts. On the passing of the
6 & 7 Will. IV. c. 106, it was declared (sec. 43), that
such of the customs of the Stannaries of Cornwall as were
not repugnant to the law r of the land, or annulled, repealed,
or altered by that statute, were to remain in full force ; but
no such enactment has been passed in reference to the
customs of Devon. The Cornish customs may, therefore,
be said to have received a statutory recognition, whilst those
of Devon have not. But what the customs of each county
SECT, i.] EIGHT TO CUT ADITS. 343
are, can only be ascertained by reference to the proceed-
ings at the Convocations or Parliaments of the Tinners,
and the subsequent entries on the file of proceedings in the
Stannaries Court, as neither the above-mentioned statute
of William IV., nor any subsequent statute, has defined or
specified them except indirectly in one or two instances in
the Acts for the amendment of the Stannaries Coru't juris-
diction. In this work we shall limit our inquiries to the
following customs :
1. THE RIGHT TO CUT ADITS THROUGH THE LANDS
OF OTHERS.
2. THE RIGHT TO THE USE OF, AND TO DIVERT
AND FOUL WATER, FOR TIN-BOUNDS, IF NOT,
FOR MINES IN GENERAL.
3. THE RIGHT TO FORFEIT A CUSTOMARY SET FOR
NON-WORKING OR IMPROPER WORKING.
4. TIN-BOUNDING.
5. THE SEVERAL CUSTOMARY LAWS OF THE COST-
BOOK SYSTEM.
The following is a copy of the alleged custom to cut an Right to
adit through the lands of another, as presented to the cut artlt>q -
Convocation or Parliament of Tinners, in the reign of
Charles I. : " We present and affirm our custom to be,
that a tinner may bring an addit through any other men's
bounds in wastrel without leave, through which addit he is
to have a passage only for his water ; but if he shall break
tin, or discover a load in his drift, or sinking of day shafts,
he is to have no benefit of the said tin or load, but shall
leave it wholly to the owners of the bounds in which it is.
And we further present and say, that we have not any
custom or precedent to warrant a tinner to bring an addit
to his work through other men's several lands, nor to avoid
his water through another man's addit, without license of
the owner of the several lands, or of the addit, first had
and obtained, and composition made with them for the
same" (e). The above alleged custom has never been
(e) Convoc. 11 Chas. I. \ '28; Stannary Laws, p. 49.
CORNWALL AND DEVON.
[CHAP. xvi.
established by any decision of a court of competent
jurisdiction, and must therefore be constructed most
Use of, strictly.
anTfouN The rig ut to the use of and to divert and foul water and
ing water, \vater-courses (/) for the purposes of mining is affirmed in
the" charters of John, and Edward (g), but it may be
doubted whether such right is not confined to tin-bounds
only, and not to mines in general. The custom in Devon
has been disputed (7i). But if, and whenever, and wherever,
the custom is claimed, care must be taken not to damage
the soil of private owners, or to pollute or damage fresh
water, or to divert water, Avhich can be claimed by pre-
scription, or by higher title than that relied upon by the
tinner. The general law of the land will be brought to
bear upon all such questions ; and by two statutes (i) it
was enacted, that no person should work or labour in any,
or any manner of, tin-works, called stream-works, within
the county of Cornwall nigh to any of the fresh waters,
rivers, or low places descending or having course into the
havens or ports of Plymouth, Dartmouth, Tinmouth,
Falmouth, and Fowey, in the counties of Cornwall and
Devon, nor any of them, nor should labour, dig, or work
any tin in any of the said tin-works, called stream-works,
unless the digger, owner, or washer should make or cause
to be made " sufficient hatches and ties in the end of their
buddels and cords" (j).
The above statutes were rehearsed at a convocation of
the tinners, held in the thirty-first year of the reign of Eli-
zabeth ; and at the convocation of tinners held in the
twenty-sixth year of George II. the custom was re-enacted
as follows : " Whereas, streaming tinners under a pre-
tence that they have a right by virtue of the charter to
turn water and water- courses, where and as often as need
shall require for the working and searching of tin, and
thereby disturb and spoil pot-waters running to men's
(y) Post, title " Water-courses."
(g) Ante, p. 76 ; Pearce's Stan.
p. 3.
(A) Bastard v. Smith, 2 M. & Rob.
129.
(z) 23 Hen. VIII. c. 8; 27 Hen.
VIII. c. 23 ; Pearce's Stan. pp. 154-
161.
(J) Pearce's Stan. p. 157.
SECT, i.] WATER AND WATER-COURSES. 345
.houses, and also divert water from ancient mills, and like- Diverting
wise disturb and spoil running waters out of malice, con- an< * f oull "
vrfttor.
trary to the true intent and meaning of the said charter, as
appears by the exposition thereof in Parliament. Be it
therefore declared and enacted, that no person shall under
any pretence whatsoever, spoil or divert any pot-waters
running to any man's house for dressing of meat, or for
the service of his family, nor divert any water from any
ancient mill. And whoever is guilty of such offence, shall
forfeit and pay such damages as the owner of the house or
mill has received thereby, to be recovered by action in the
court of the Stannary wherein the offence is committed.
And be it further enacted, -that if any person or persons
shall disturb or spoil any running water out of malice, and
be convicted thereof, by indictment at the law court, he
shall forfeit the sum of five pounds to the use of the king,
or Lord Duke of Cornwall."
"Item. Whereas, great prejudice hath arisen to the
rivers, and likewise to the lands adjoining to, or below,
stream works, by the streamers working their stream works,
and letting the gravel or rubble digged by them in their
searching for finding and working their tin, either fall into
the rivers, or be washed upon the land adjoining to, or
below them. In order to remedy such inconvenience, be it
declared and enacted, that where any moors, meadows, or
pasture ground shall be overflown by streamers suffering
their stones, rubble, and gravel to fall into rivers, if such
streamer, or streamers, shall not upon two days' notice
given to him or them, clear the said river, so as to prevent
such moors, meadows, and pasture ground from being
overflown, such streamer, or streamers, so offending, shall
forfeit such damages and costs to the party aggrieved as
he shall sustain thereby ; and also forfeit the sum of five
pounds, one moiety to the king or Lord Duke of Cornwall,
and the other moiety to the person sueing for the same, to
be recovered by plaint or information in the court of the
Stannary wherein the offence is committed" (&).
This custom has not been established in any court of law
(*) Stany. Laws, p. 112.
346 CUSTOMARY SETS. [CUAP. xvi.
or equity of competent jurisdiction ; and practically it can-
not be relied upon, except as against the crown. Subject,
however, to any customary right the common law of the
land must prevail (I).
Forfeiture The grantor of a customary set may re-enter and declare
f custo- f or f e ited any set granted by him which is not duly worked.
The following is the law of the tinners : " Whereas, doubts
have arisen concerning the forfeiture of customary sets of
mines by not working the same ; and whereas a notion has
arisen that such customary sets may be preserved, although
such mines are not effectually wrought ; be it therefore de-
clared and enacted, that if any person or persons shall take
such customary set, and shall not work the same effectually
at all working times and seasons, or shall leave the said
work unwrought at any time, without reasonable cause, it
shall and may be lawful for the person or persons so setting
the said mine, to enter into, have again, repossess and enjoy
the same in the same manner as if no such set had ever
been made or granted" (in). This custom is of little prac-
tical value, as all sets, it is believed, are now in writing,
but if any such customary sets do exist, the Stannary
Court, it is said, will enforce such forfeiture, at least since
the writ of ejectment was introduced by 18 Vic. c. 32,
s. 15.
(?) Post, title, " Streams and Water-courses."
(m) Convoc. of Tinners, 27 Geo. II. ; Stany. Laws, p. 114.
SECT. ii.J TIN-BOUNDING. 34J
TIN-BOUNDING.
CORNWALL. Antiquity of custom proved from the charter of John Pearce's,
and Smirke's Stannary Laws Convocations or Parliaments of the Tinners
James I. Charles I. James II. 26 <3f 27 Geo. If. Court Rolls of the Stan-
naries. Description of the custom in Rowe v. Brenton Rogers v. Brenton.
Custom referred to in 6 tf 7 Will. IV. c. 106, ss. 41, 43 ; 7^8 Vic. c. 105,
ss. 32, 84 : 18 Vic. c. 32. s. 17. Decisions on the custom Crease v. Barrett
Doe d. Earl of Yarmouth tin only subject to the custom immemorial
bounds renewing and preservation of bounds Vice v. Thomas Rogers v.
Brenton, Stannary laws, ministers' accounts used in evidence, Lord Denman's
judgment Smirke's opinion Attorney-General v. Mathias Constable v.
Nicholson. The author's deductions from the authorities respecting the custom.
DEVONSHIRE. Custom in Devon resembles the Cornish custom points of
difference real estate tolls to the Lord.
THE earliest reliable proof of the ancient custom of " tin-
bounding" is the charter of King John, granted by that Charter of
monarch in the third year of his reign to the tinners of John -
Cornwall and Devon. The following is an extract from
that charter :
" Quod possint (stannatores nostri) omni tempore libere
et quiete absque alicujus hominis vexatione fodere stannum,
et turbas ad stamium fundendum ubique in moris et in
Feodis Episcoporum, et Abbatum et Comitum, sicut solebant
et consueverunt, et emere buscam ad funturam stanni sine
vasto in regardis forestarum, et divertere aquas ad opera-
tionem eorum in stammariis sicut de antiqua consuetudine
consueverunt."
Some particulars of the custom in the reign of Henry VIII. Pearce's
and Queen Elizabeth will be found in Pearce's Stannary Laws-
Laws, respecting which, inter alia, the following matters
are referred to :
1. The manner of bounding tin- works.
2. Whether if a tinner missing the day for renewing his
bounds can afterwards renew them before any other
tinner claims them.
3. Of two divers bounds on one tin-work. The title to
the respective claimants was tried in 1586 at the
Stannary Court of Blackmore.
4. How long a man may keep his work without delivery
of toll-tin.
348 CORNWALL AND DEVON. [CHAP. xvi.
5. If freehold is pleaded to an action, can the steward
try the cause ?
6. If a man dies possessed of a tin-work or tin-bounds,
does it belong to his executors, or to his heirs (n) ?
Smirke's In Mr. Smirke's work will be found :
Laws!^ !' Presentment of the custom by the tinners of the
Stannary of Tywamhaile, in the 2nd year of Jas. I.
A.D. 1604.
2. Presentment of the custom by the tinners of
Blackmore, in the 7th year of Jas. I. A.D. 1609,
where bounds are worked by one of several
owners.
3. Presentment of the custom by the tinners of the
Stannary of Foweymore, in the llth year of Jas. I.
A.D. 1613.
4. Presentment of the custom by the tinners of the
Stannary of Pen with and Kerrier, in the 14th year
of Jas. I. A.D. 1616 (o).
5. Extract from the Court Rolls of the Stannary of
Foweymore, wherein entries of bounds occur (p).
6. Writ of possession of the bounds after the 3rd pro-
clamation, A.D. 1725 (
and new of the said work, with the bounds and limits of
the said pitch, otherwise the said pitch to be deemed void."
" 18. We find when bounds are kept by renewing ac- Renewing
cording to the custom, and the keeper shall carelessly let
slip his day of renewing, and shall afterwards come again,
and renew the old corners, before any other tinner shall cut
a new pitch upon them, that such renewing shall be taken
for a good renewing against any other pitch."
And at the said Stannary Parliament, held in the 26th Laws of the
and 2 7th years of Geo. II., the following laws among others p a *i! ry
which had been made in the llth and 12th years of Chas. I. m ent,
were re-enacted and confirmed : Charles I.
" 3. We present and affirm, that by common prescribed
Stannary right, any tinner may bound any wastrel lands Wastrel,
within the county of Cornwall that is unbounded, or void
of lawful bounds ; and also any several and enclosed land
that hath been anciently bounded and assured for wastrel,
by delivering of toll-tin to the lord of the soil before that
the hedges were made upon it ; and also such and so much
of the prince's several and enclosed customary land within Prince's
the ancient duchy assessionable manors, as hath been lands -
anciently bounded with turfs, according to the ancient
custom and usage within the said several duchy manors,
and not otherwise, the tinner paying out of such land so
bounded the usual toll only as is generally paid within the
Stannaries, that is the fifteenth dish or part, saving in such
places where a special custom hath limited another rate of
toll."
" 4. We present and affirm our general custom of gain-
ing and keeping right in bounds to be by new pitch and
renew, in such manner as it now is, and anciently hath
been in use in the several Stannaries ; which said general
custom we limit, ordain, and agree that it shall be thus
understood, viz. That an owner working his tin-work by
himself, his wages-man, or farmer, paying toll once a year
and a day, or otherwise continuing his working without
(a) Post, p. 353, 360, 3C6, 368.
350 CORNWALL AND DEVON. [CHAP. xvi.
Laws of the fraud in driving an adit unto, or sinking a shaft upon the
Pa!Sa" y saic * W01 'k> ancl w) ' tnal preserving the four comer bounds, so
ment, as they be seen or sufficiently proved, if they, or any of
Charies 2 l. tnem sna ^ ^ e new b" or casually or maliciously defaced, so
long the said owner shall not lose his bounds for default of
renewing."
Prociama- 15. We agree, constitute, and ordain that whosoever
shall pitch any bounds, shall enter his proclamation for the
same in the Stannary Court, where the ground lieth, at the
first court that shall be holden after the said pitch; in
which proclamation he shall set down the day of the pitch,
the names of his fellow-owners, the name of the said work,
and the old name also, together with the place where the
bounds lie, or otherwise the pitch to be void."
Partners. ^ Tfif e agree, constitute, and ordain that where there
are many co-partners in a tin-work, such owners as, upon
the reasonable warning given them, shall not either set
their parts to -farm, or bring in their men or money accord-
ing to their parts, within one month after the work shall be
set to work, paying cost and spale for that month, such
owners shall be excluded from entering or adventuring in
the said work during that adventure, and shall have only
such farm as the work is set for by the rest of the owners ;
and in case of non-entry upon reasonable warning, if it be
a work of charge and not of present profit, a set made by
most part of the owners of the tin-work by our custom is,
and shall be good and available against the rest of the co-
partners. And in case where none of the owners have
made any set, but all of them either adventure or forbear
entry, there the f arm shall be assessed by the oaths of three
indifferent tinners that are to be chosen, one by the workers,
one by the owners not adventuring, and the third by the
steward of the Stannary Court where the work lieth." (The
same law was enacted in the Stannary Parliament, 22nd
Jas. I.) ().
" 17. We present and affirm our custom to be, that
neither Vice-Warden, steward, bailiff, lawyer, attorney,
nor any other officer or practiser in the Stannary jurisdic-
(0 Stannary Laws, p. 21.
SECT, ii.] TIN-BOUNDING. 351
tion, nor any great person in the county, nor any man of Laws of the
power among tin-works, nor their children, clerks, servants p a *iia- ry
or friends in trust for them, directly or indirectly, ought to ment,
" 11 & 12
be made owners in any tin-works in variance, and for that Charles I.
rights in tin-works are many times overborne by counte-
nance, We further agree, constitute, and ordain that what
tinner soever shall give, sell, or promise, directly or in-
directly, any tin-works, or bounds in variance, or any part
thereof to any the persons aforesaid, or in trust for them as
aforesaid, shall forfeit 5, and that the gift, sale, promise,
or disposition, shall be deemed to be void in regard to him
to whom it is made ; and that the right or part so given or
sold, promised, or disposed, shall enure to the church-
wardens of the parish where the work lieth, for the time
being, and their successors, towards the relief of the poor
of the said parish." (The same law was enacted in the
Stannary Parliament, 22nd Jas. I.) (u).
"18. We present and affirm our custom to be, that
whatsoever tinner hath been in quiet possession of a tin-
work by the space of a year and a day, by himself, his
farmers, or workers, he ought not to be removed from the
possession, or dispossessed of his farm-tin by any command,
order, sequestration, injunction, or other writ whatsoever,
before that verdict shall be against him for the right of the
tin-work. And in case, where neither party hath been in
possession of quiet working a year and a day, but that the
variance is about old right and new pitch, We agree, con-
stitute, and ordain that the workers that were first in, and
discovered the right, shall not be molested, but shall con-
tinue their possession until verdict shall be against them
upon the title ; but the farm, in the interim, shall be
sequestrated and deposited in mesne hands, to answer to
him that shall recover by legal trial." (The same law was
enacted in the Stannary Parliament, 22nd Jas. I.) (v).
" 19. We agree, constitute, and ordain that if any owner, Bounds un-
partner, or keeper of bounds for other men, shall suffer the renewe(1 -
said bounds to be unrenewed, and so become void, and shall
not first declare and give reasonable warning unto the rest
(u) Stannary Laws, p. 21. () Stannary Laws, p. 22.
352 CORNWALL AND DEVON. [CHAP. xvi.
Laws of the o f the owners, that he no longer will be keeper of them,
willing them to look to the keeping of them, and offer him-
ment, se }f re ady to show them the four corners, in that case, the
Charles I. new pitch shall enure, by way of remitter, to the behoof of
the old owners, saving to such of them as were party or
privy to the fraud, whose right shall accrue and be to the
rest of the old owners. And the keeper and every one, that
shall be party or privy to the fraud, being thereof legally
convicted by verdict, shall forfeit and incur the penalty of
20, the one-half to the lord-prince, and the other half to
the party or parties grieved." (The same law was enacted
in the Stannary Parliament, 22nd Jas. I.) (w).
" 31. We agree, constitute, and ordain that if any tin-
works under bounds hath lain, or shall lie un wrought by the
space of seven years, and if any tinner shall be desirous to
work the same, he shall signify such his purpose to the
owners of the said work, or to the most of them, and shall
cause to be entered of record upon the court-book the place
where the said work lieth, and the time of such his declara-
tion, to whom and before whom, and then if the owners of
the said work, or some of them, shall not work, set, or pro-
cure the said work to be wrought within one year next after
such declaration made unto them, if the owners have not
any other w r ork then in working by their own adventure, it
shall be lawful for the said person that gave such warning
to the owners to work the said work at farm, as long as he
will continue his costs therein, paying to the owner, if it be
dry work, the seventh dish to farm ; and if it be a water-
work, that draweth water both summer and winter, but the
ninth dish to farm. Provided that before he enter into the
work, he shall give sufficient caution, such as the steward of
the Stannary Court shall allow, for the well and orderly
working and preservation of the said work; and that he
shall not break the pillars, backs, vaults, or binding thereof,
nor fill the addit thereof to the prejudice or destruction of
the said work. But for tin-works in several lands unbounded,
which belong to the lords of the soil only ; we affirm and
say, that by our custom no tinner may w r ork in several or
(>) Stannary Laws, p. 22.
SECT, ii.] TIN-BOUNDING. 353
unbounded lands without the leave of the lord or owner of
the soil."
And at the said Stannary Parliament of 26 & 27 Geo. II.,
the following laws which had been made at the Stannary
Parliament held in 2nd year of James II. were recited
and confirmed :
" Imprimis. We agree, constitute, and ordain that who- Laws of the
soever shall pitch any bounds shall enter his proclamation p^i^ 17
of the same in the Stannary-court where the ground lieth ment,
at the first court that shall be holden after the said pitch,
in which proclamation he shall put down the day of the
pitch, the name of his fellow-owners, and of the party that
cut them, and the true bounds and limits of the corners
thereof, otherwise the said pitch to be void. And also that Proclama-
when any pitch of new bounds shall be entered in the Stan- tlons '
nary-court, the same shall be openly proclaimed (x) at that
court and two courts following, before writs of possessions
shall be granted, and shall be engrossed and posted up in
some open place in the court, during the continuance of
such three courts before a writ of possession. And if any
person shall in any of the said three courts make claim or
title against the said new pitch, either by reason of old
bounds, or several lands, he shall forthwith enter his action
of trespass against the person that cut the said bounds, and
the persons to whose use the same were cut. And the
person so cutting shall likewise give notice in writing of
such pitch, to the lord or lords of the fee of the lands on
which such bounds were cut, or to some or one of his or
their stewards, agents, or servants within one year next
after such pitch, and shall prove such notice given before
the steward of the Stannary in which the bounds are, within
twelve months next after such notice given, otherwise the
pitch to be void."
" 2. Item. We present our ancient custom to be, and do Descrip-
... n . i turn of tin-
agree, constitute, and ordain that all tin-bounds ought to bounds.
have four corners (?/), which shall consist of twenty-four
turfs or stones, six to each corner. And we likewise find,
that side-bounds have been anciently used, and are still law-
ful to be used. And we do declare our custom to be, that all
(or) Post, p. 368. (y) See figure, next page.
2 A
354
CORNWALL AND DEVON.
[CHAP. xvi.
Laws of the bounds must be renewed within a year and a day, and that
stannary s i l j c _| )ounc l s shall likewise be so renewed whereof the benefit
ment, shall be claimed. And we do further declare our custom
2 James II.
to be, that in case the side-bounds be unrenewed and left
void, and the head or corner-bounds be renewed, the benefit
of the side-bounds only shall be lost, as to the land that they
draw, but the land within the head or corner bounds shall
remain well bounded."
" 3. Item. We do agree, constitute, and ordain, if the
lord of the soil where land-dole is customary do take and
receive his toll-tin before he enter his land-dole, then the
lord of the soil is, and shall be barred of his land-dole ; but
if he enter into his land-dole before he take his toll-tin,
then he shall have, possess, and enjoy, both land-dole and
toll-tin, else he shall have the toU-tin only."
" 4. Item. We do agree our custom to be, and accordingly
constitute and ordain that rights and titles to bounds, and
rights and titles to adventures to work for tin shall be in
the owners, in the nature of chattels real ; but shall be per-
petually enjoyed from executor to executor, or administrator,
being renewed and continued according to custom, and shall
be executory assets subject to the payment of debts and
legacies, in such order and manner as other goods and
chattels are by the rule of the common law, but may be
granted by deed or devised by will."
" 8. Item. We do agree, constitute, and ordain that where
any tinner shall work either in wastrel or several, and shall
make and break tin under ground, and the party or parties,
who have either bounds or several lands contiguous, or near
adjoining with the said bounds or several lands, wherein
SECT, n.] TIN-BOUNDING. 355
such tin is made or wrought, that in case such owner of the Laws of the
several lands or bounds, so contiguous or adjoining, shall p ar u a . r>
suspect that the party so digging is come into the bounds or ment >
several under ground, and hath wrought tin there, the
owner of the lands or bounds so adjoining complaining
thereof unto the steward of the Stannaries, Vice-Warden,
or Lord Warden, or either of them, that then it shall and
may be lawful for the steward of the Stannaries, Vice-
Warden, or Lord Warden, or any of them, upon such
complaint m ade unto them or either of them in that behalf,
to nominate and appoint three sufficient indifferent persons
for to enter upon, and go down by the benefit or use of the
present tackle or ropes into such work then used, and into
all and every shaft and shafts so near adjoining, which
hath or shall be so digged or wrought in ; and to see and
try by measuring or otherwise, whether there be any digging
within the limits of their lands or bounds, to view the same
under ground. And in case the party so working shall not
after such view to be had as aforesaid, and notice thereupon
given, desist to work any further within such lands or
bounds, that then the owner or owners of such adjoining
lands or bounds, or such as claim under them, shall dig
shafts for the working of the said tin, and bringing up the
same to grass, and shall and may bring their action of
trespass against the owner or adventurer that hath so
wrought tin under ground within then.' lands or bounds,
and recover the full value of all the tin stuffs, and tin-oar,
so wrought within the limits of the said adjoining bounds,
or several lands, after the time of such view and notice
given, together with the costs of suit, in case such tin shall
appear to be wrought within such adjoining bounds or
lands. But if the party shall desist such working, upon
such view and notice given ; that then the party so work-
ing shall not be liable to any action, for what he hath digged
or wrought before such notice given. And we do lastly
ordain, that as often as any trial shall be had touching any
digging under ground beyond the lands or bounds, it shall
be by a special court if required by either party so contend-
ing as aforesaid ; and the jury to try the said cause shall
2 A2
356 CORNWALL AND DEVON. [CHAP. xvi.
Laws of the come upon the said place, and go down into such shafts to
Par?u 8ry v * ew anc ^ measure tne sam e. And likewise view and
ment, measure the extent of the lands or bounds upon the
' IL surface, for their satisfaction, and the extent of such lands
or bounds shall then be shown unto them. But this law
shall not extend to any working under ground in the drift
of any audit through any wastrel lands."
Laws of the And at the Stannary Parliaments held in the 26th and
Partia-^ ^^ vears f tne rQ igP f Greorge II., various other alleged
ment, customary rights of the tinners were confirmed. Many
26 & 27 /. Al i , , i c - ,
Geo II f those rights were mere recitals ot existing customs,
whilst others were not so ; the former must therefore be
considered as of greater force than the latter. The follow-
ing are, inter alia, the laws referred to :
Wastrel " 8. Item. Whereas by the common usage and custom of
the Stannaries, any tinner may bound with tin-bounds any
wastrel lands within the county of Cornwall, that are un-
bounded or void of lawful bounds ; and also any several and
enclosed lands that have been anciently bounded and assured
for wastrel by payment of the toll-tin before that the hedges
were made upon the same ; and also may cut bounds in the
Prince's several and enclosed ancient assessionable duchy
manors, according to the ancient custom and usage within
the said several duchy manors, the tinners so bounding the
said lands, paying the usual toll to the lord of the soil, as is
generally paid within the Stannaries (that is to say), a
Toll to the fifteenth dish or part, saving in such places where a special
fifteemh" custom hath limited another manner of toll ; and whereas
or what is there are several ancient and laudable customs relating to
iary< the manner of cutting, renewing, and working of tin-bounds ;
be it hereby declared and enacted, that all such customs
shall remain and be in force, unless they are hereinafter
particularly limited and restrained ; but whereas there are
several frauds committed by part-owners in tin-bounds, and
the keepers of bounds, in not renewing the same, but suffer-
ing them to remain unrenewed, with an intent that the
same may be forfeited and lost, and then be cut again to his
or their own use or uses, either in his or their own name or
names, or in the names of others in trust for him or them,
SECT, ii.] TIN-BOUNDING. 357
or some other person by their direction; and whereas Laws of the
several laws have been made in order to prevent such undue pa^Ua^
practices, which laws may be of use to be enforced ; be it " ie ^>
therefore declared and enacted, that where there are divers Geo. II.
owners of, or part-owners in one pair of tin-bounds, if any
such owner or partner shall suffer such bounds to become
void with an intent to defraud his partners, and afterwards
procure or suffer the said bounds to be new cut, either in
his own name, or in the name or names of any other or
others in trust for him, or some other person or persons by
his direction, the bounds so new cut, shall be to the use of
the other owners and partners so intended to be defrauded ;
and the owner or partners so intending to defraud the other
owners, shall forfeit and lose his part to the other owners
or partners, to be by him or them enjoyed in such shares
as shall be in proportion to their former shares therein, and
such owner or partner so intending to defraud the other
owners or partners shall also forfeit the sum of 20, to be
recovered by action in the court of the Stannary wherein
the said bounds do lie to the use of such of the other
owners or partners as shall sue for the same."
"Section 2. And be it further declared and enacted,
that if any tin-bounder, or keeper of tin-bounds for any
person or persons shall suffer the said tin-bounds to be
unrenewed, by means whereof they become void, without
first giving at least one month's notice thereof in writing
to such person or persons to whom he is bounder or
keeper, that he will be no longer his, her, or their bounder
or keeper of his, her or their tin-bounds ; or if any such
tin-bounder, or keeper of tin-bounds shall at any time,
upon reasonable notice, refuse or neglect to show the
corners or limits of such tin-bounds, of which he is
bounder or keeper, to such person or persons to whom
he is bounder or keeper, or to any other person or per-
sons duly authorized by him, her, or them, to inspect the
corners and limits of the said bounds, or shall deface any
corner, or corners, limit, or side-bounds, any keeper so
offending,' shall forfeit the sum of 50, to be recovered
as ^aforesaid. And if any bounds being void for want of
. 358 CORNWALL AND DEVON. [CHAP. xvi.
Laws of the renewing, as aforesaid, shall be cut by fraud to the use of
Stannary A , . . ,
the said keeper, or in trust for him, or any person or per-
ment, ^ sons concerned with him, such cutting shall be, and is
Geo. ir. hereby enacted to be to the use of the said old owners,
and every person party or privy to such fraud, shall forfeit
the sum of 50, to be recovered as aforesaid."
" Section 3. And whereas tin-bounds, or tin-works in
bounds lie often unwrought for the space of many years,
to the great prejudice of the Stannaries, be it declared and
enacted, that if any tin-bounds or tin-work, or tin-works in
bounds, shall remain unwrought for the space of twelve
months, and any person or persons shall be desirous to
work for tin within such tin-bounds, he or they shall sig-
nify such his, or their purpose, to the owner or owners of
the said tin-bound, or tin-bounds, their agent or bounder,
and shall cause to be entered of record upon the Stannary
Court book, in which the said tin-bounds, or tin-work, or
tin-works in bounds lie, the place where the said tin-bounds,
tin-work, or tin-works in tin-bounds he hath so proposed to
work, lie ; and likewise the name or names of the owner,
or owners, agent, or bounder, to whom he, or they signified
such his purpose, and the time thereof, and before whom,
which he, or they shall verify by oath, and shall likewise,
in such entry express the limits and extent of the said tin-
bounds, tin-work, or tin-works he, or they so intend to
work; and if the owner or owners of such tin-bounds, tin-
work, or tin- works in such bounds, shall not work, set, or
procure the said tin-bounds, tin-work, or tin-works in such
bounds, to be wrought within two months after such entry
and oath as aforesaid, it shall be lawful for the person or
persons who gave such notice to the owner or owners, as
aforesaid, to work the said tin-bounds, tin-work, or tin-
works in the same manner as if he had a set thereof,
upon paying the usual and accustomed farm ; and that be-
fore he or they enter into the work as aforesaid, he or they
shall enter into a bond, in the penalty of 100, with two
sufficient sureties, who are likewise to enter into a bond, in
the penalty of 50 each, to the owner or owners of the said
tin-bounds, or one of them, in trust for the other owner, or
SECT, ii.] TIN-BOUNDING. 359
owners, for the well and effectually working the said tin- La ^s of the
. .11 i Stannary
work, or tin-works ; and that neither he, or they, his, or p ar iia-
their partners, or any person employed by him, or them, ? 6 e ^' 27
shall break the pillars, backs, vault, or binding thereof, nor Geo. II.
fill the adit, nor do anything to the prejudice of the said
mine. And in case the person or persons so entering the
said tin-bounds, or tin-work, or tin-works in such bounds,
as aforesaid, shall neglect effectually to work the said tin-
bound, or tin-bounds, tin-work, or tin-works in tin-bounds,
or shall wilfully do, or suffer to be done anything to the
prejudice or destruction of the said tin-bounds, tin-work,
or tin-works in such bounds, such person or persons, and
his, and their sureties, shall forfeit the penalty of the said
respective bonds, and it shall and may be lawful for the
owner and owners of the said tin-bounds to enter into,
have again, hold, enjoy, and repossess the said tin-bounds,
tin-work, or tin-works in the same manner as if this Act
had never been made, provided always, that if the owner
or owners are working in any tin-work in such tin-bounds,
or are driving an adit to such tin-bounds, or doing any
other act, in order to work effectually the said tin-bounds,
although the said tin-bounds are not actually at work,
within the space of one month after such notice, entry, re-
cord, and oath, as aforesaid, it shall not be lawful for such
person to enter into and work any tin-bound, tin-work, or
tin-works in the said bounds anything in this law to the
contrary notwithstanding."
" Section 4. And whereas it has been a practice for tin-
ners to bound, or cut bounds privately without the know-
ledge of the lord of the soil, whereby, after some years have
elapsed, disputes have arisen between the lords and bounders,
whether such lands have been boundable or not ; and
whereas in the Convocation or Parliament of Tinners held
in the reign of the late King James the Second, in order
to prevent such inconvenience, it was enacted, that when
any pitch of new bounds should be entered in the Stannary
courts, the same should be openly proclaimed at that court,
and two courts following before writ of possession should
be granted, and should be engrossed and posted up in some
360 CORNWALL AND DEVON. [CHAP. xvi.
Laws of the O pen place ill the court during the continuance of such three
r;irii"- ry courts ; and that the person so cutting should likewise give
inent, _ notice in writing of such pitch to the lord or lords of the
Geo. 11! fee of the lands on which such bounds were cut, within one
year after such pitch, and should prove such notice given,
otherwise such pitch to be void; and whereas notwith-
standing the aforesaid laws divers inconveniences have
arisen in cutting bounds ; be it declared and enacted that
all bounds, hereafter to be cut, shall be void, unless the lord
or lords of the soil, his, or their agent, or toller, hath notice
given him or them in writing at least three months before
Proclama- such cutting, that such cutting is intended ; and if the lord
of the soil shall upon such notice think fit to cut such
bounds to his own use, then it shall be lawful for him so to
do at any time, within three months after notice given as
aforesaid, and before any proclamation of any bounds is
received, the person so cutting them, shall make oath be-
fore the steward of the Stannaries wherein the said bounds
lie of his having given such notice as aforesaid ; provided
always, that in case the lord or owner of the soil shall
neglect, either by himself, or toller, or agent, to cut such
bounds within three months next after notice given as
aforesaid ; in such case the person by or on whose behalf
such notice was given shall be entitled to the liberty of cut-
ting such bounds, and shall and may have and enjoy the
same to his own use according to the customs of the Stan-
naries of Cornwall, anything herein contained to the con-
trary notwithstanding. And be it further enacted, that if
the owner or owners of any bounds hereafter to be cut shall
not within three years after the proclamations are passed,
deliver toll-tin to the lord of the soil in which such bounds
are cut, or at least proceed and continue effectually to
work the same ; that then and in such case, such bounds
shall be null and void to all intents and purposes, as if the
said bounds had never been cut."
" Section 5. And whereas several inconveniences arise to
the lords of the soil, for want of knowing the corners and
limits of bounds cut upon then? lands ; be it declared and
enacted that every tin-bounder, renewer, or keeper of
SECT, ii.] TIN-BOUNDING. 361
bounds, shall upon request made to him by the lord of Laws of the
the soil, his agent, or toller, with the day on which the said
bounds are renewed, and shall likewise on the day and at ment >
26 & 27
the time of renewal, show to the said lord, his agent or GCO. n.
toller, the corners and limits of the said bounds respec-
tively ; and in case any tin-bounder, renewer or keeper of
tin-bounds, shall refuse to acquaint the lord of the soil, his
agent or toller, with the day of such renewal, or shall re-
fuse to show the lord of the soil, his agent or toller, the
corners and limits of the said bounds respectively, at the
time he renews the same, upon such request made as afore-
said, he shall forfeit the sum of 20, to be recovered by
action in the Court of the Stannary, wherein the said
bounds lie, to the use of the person or persons aggrieved
thereby."
" Section 6. Whereas it frequently happens, that where One of
there are several part-owners of tin-bounds, and some of
the owners are willing to work the said bounds, but are fusing to
prevented from so doing, because others of the owners bounds.
refuse either to adventure or set their shares, which is a
great hardship upon the owners, who are willing to work
the said bounds, and also upon the lord of the soil ; in
order to prevent such inconveniences, be it declared and
enacted, that where there are several owners of tin-bounds,
which owners who upon reasonable warning given them,
by such of the other owners as have at least one-half of the
right and interest in the said bounds, shall not either set
their parts to farm or bring in their men or money accord-
ing to their parts, within one month after the other part-
owners, or any person or persons claiming under them,
have begun to work their bounds; such owners having
such notice, and refusing to work as aforesaid, shall be
excluded from setting the said bounds, or adventuring
therein during the adventure so begun, and shall have
only such farm in proportion to their share, as is the usual
and accustomed farm ; unless any of the other owners have
set their parts ; and in that case the owner or owners, so
refusing to adventure, shall have such farm as the other
owners, who have set their parts, have reserved in their set,
362 CORNWALL AND DEVON. [CHAP. xvi.
Lawioftheor else the accustomed farm at the election of the said
Pariia- ry owner, or owners, so refusing to adventure."
ment, "Item. Whereas it is a frequent practice for tinners
26 & 57
Geo. II. working in bounds or several lands, to dig and carry away
tin or tin-stuff from the next adjoining bounds, lands, or
adventures in the same bounds or lands ; and it has hitherto
been considered as the law of the Stannaries, that the
tinners so digging and carrying away tin or tin-stuff have
right to the same, till notice given them by the owners of
the next adjoining bounds, lands, or adventures, and until
an admeasurement is had by virtue of the vice-warden's
order, which practice has often been productive of great
frauds in the working of mines ; now in order to prevent
such frauds, and to put an end to a practice so unequitable,
be it hereby declared and enacted, that it shall not be
lawful for any owner or owners, adventurer or adven-
turers, tinner or tinners, under any pretended right or
custom whatsoever, to dig or carry away tin or tin-stuff
from the next adjoining bounds, lands, or adjoining adven-
tures in the same bounds or lands ; and if they or either
of them so do, they shall be answerable for the tin or tin-
stuff they so carry away, to the owners and adventurers in
the next adjoining lands or bounds, or adjoining adventures
in the same lands or bounds, from whence the tin or tin-
stuff was carried away according to their respective shares
in damages to be recovered by action in the court of the
Stannary wherein the said tin was dug. And whereas it is
difficult for the owners of, and adventurers in the next
adjoining lands, bounds, or adventures, to know when the
tinners are digging into and taking aw r ay tin or tin-stuff
from their said lands, bounds, or adventures ; in order to
make the knowledge thereof more easy, be it declared and
enacted, that upon request made in writing by, or on the
behalf of, the owner or owners, adventurer or adventurers,
in such next adjoining lands, bounds, or adventures in the
same lands or bounds to the tinner or tinners digging as
aforesaid, or to one of them for liberty to go down and
measure the ground, such liberty shall from time to time
be granted, together with the use of the tackle for so
SECT, n.] TIN-BOUNDING. 363
doing, and in default thereof , it shall and may be lawful to Laws of the
and for the vice-warden of the Stannaries, and he is p a ^- y
hereby authorized and required to ffive an order in writing, ment >
,. ". fo , f 9 26 &27
directing such person or persons so refusing, to permit the Geo. II.
person or persons so requesting to go down, in order to ad-
measure the said ground, and such person and persons
respectively, who upon such order shall refuse to obey such
order, shall be fined at the discretion of the vice-warden.
And if after such admeasurement it appears, that such
tinner or tinners, is or are, or have been digging in the
next adjoining lands or bounds, or adjoining adventures in
the same lands or bounds, or if that appear doubtful, it
shall be lawful for the vice-warden to issue his injunction
for staying the said tinners from working in the said lands
or bounds, or adventures, and from carrying off the said
tin-stuff in question, till such doubt be tried in the Stan-
nary Court. And be it farther enacted, that such trial
shall be had by a special jury, at a special court on the
surface of the place in which the dispute arises, if either of
the parties desire the same, by action of trespass to be
brought for that purpose. And be it hereby farther de-
clared and enacted, that the eighth article passed in the
convocation held in the reign of the late King James the
Second be and is hereby repealed."
The Court Rolls of the Stannaries are also evidence of Court
the existence of the custom (z), but owing to the imperfect r<
state of the earlier entries we must content ourselves with
a reference to those entries which date about the 17 or 18
Henry VII. Respecting the entry and proclamation of
bounds, Mr. Smirke says (a), " That whatever formalities
may have been required in establishing this species of pro-
perty, the necessity of entering the bounds and proclaiming
them in the Steward's Court was not recognized before the
reign of Henry VII. ;" and he proceeds to establish this
proposition by adducing four proofs : " First, the total
silence of the rolls before that period. Second, the ex-
(z) Pearce's Stan. Introcluc. pp. 13- () Smith's Stan. 101.
22; Smirke's Stan. 12, 17, 26, 32,
36 ; App. 58-61, 73, 77.
364 CORNWALL AND DEVON. [CHAP. xvi.
press declaration of the tinners of Penwith and Kerrier, at
a court held in 1616, that proclamations were not so old as
bounds. Third, the existence of an authentic record show-
ing the introduction of a similar form of claim in the
Devonshire Stannaries in 10 Hen. VII. Fourth, the
charter of pardon, 23 Hen. VII." But, whatever may
have been the requisite formalities of the custom before
the time of Henry VII., the entry of bounds and the pro-
clamation thereof were declared necessary and enforced, as
we have seen, by the Stannary laws before referred to (>).
Bounds Having given a description and summary of the laws re-
in S Rowe d v ^ atni S to tne custom in the Stannary Parliaments, we shall
Brenton.' do well to notice the description given of it in some modern
cases. Lord Brougham, when Mr. Brougham, as counsel
for the plaintiff in Howe and Brenton (c), is reported to
have said that the "law or usage as between the free-
holder and the miner was this : that the miner had a right
to go upon the lord's or the freeholder's tenement and cut
bounds ; that is to say, cut up a turf so as to form a mark
upon the surface or area of the soil which those people
called bounds. The miner then, at the Stannary Court,
gave notice to the lord, that if the lord would not work the
tin mines under those bounds, he, the miner, who proposed
to do so, claimed that privilege. Accordingly, this notice
was given in three successive courts, according to the usage
of the Stannary laws passed ; and if at those three courts
the lord, who had the first right to work the tin mines
under his own soil, would not work them, the miner,
through that process, acquired a right as against the lord ;
and that is what is commonly called bounds. He had the
right then to open mines and to work the tin in those
mines. Gentlemen in those parts of the manor which were
waste, or in those parts of the manor which were conven-
tionary, and where he had the right of minerals, this
right or custom of bounding was equally prevalent against
the Duke of Cornwall as it would be against a private indi-
vidual owner in fee ; and therefore, under the circum-
stances I have mentioned of the Duke of Cornwall, you
(6) Ante, pp. 349, 350, 353, 360, (c) Concannen's Rep. p. 80.
366, 368.
SECT, ii.] TIN-BOUNDING. 365
may well suppose that, in those days, he would not carry
on, or his agents or ministers would not carry on, mining
operations ; assuming, as I do, that this usage, or practice,
by which, if the lord refused to exercise his right, the right
of working devolved to the miner, applies in the case of the
Duke of Cornwall (d\ as the freeholder of those mines. If
he would not work himself when those three courts were
passed, the bounder worked; and the bounder working,
then according to that, which seems to have grown up into
a custom, there the toll was given to the lord ; and that
toll, though not entirely uniform, seems to have been a
twelfth and a fifteenth (e) of the minerals got up, which
was sometimes taken in specie, and sometimes an equivalent
in money was given for it."
A description of the custom was given by Lord Denman Descrip-
in the case of Rogers v. Brenton (/). His lordship said : customs* in.
" There can be no doubt that it is most reasonable, fulfilling Rogers v.
every requisite of a good custom. In substance it is this :
the mine is parcel of the soil ; the ownership is in the owner
of the soil ; but it is a parcel which to discover and bring
to the surface may ordinarily require capital, skill, enter-
prise, and combination ; which, while in the bowels of the
earth, is wholly useless to the owner, as well as to the pub-
lic ; and the bringing of which into the market is eminently
for the benefit of the public. If, therefore, the owner of
the soil cannot or will not do this for himself, he shall not
be allowed to lock it up from the public : and, therefore, in
such case (unless when by enclosure he may seem to have
devoted the land to other important purposes inconsistent
with mining operations, such as agriculture or building),
any tinner, i.e. any man employing himself in tin mining,
may secure to himself the right to dig the mines under the
land, rendering a certain portion of the produce to the
owner of the soil. It is right to observe, in passing, how
every step, even in this strong invasion of the rights of
ownership, still vis made with reference to them. In the
first place, the land to be bounded (we speak of a sup-
posed original case of bounding) must be wastrel : if it be
(O Ante, p. 349. (e) Ante, pp. 349, 356. (/) 10 Q.B. p. 50.
366
CORNWALL AND DEVON.
[CHAP. xvr.
several and enclosed, it must have been anciently bounded
while wastrel, and so, in the language of the country,
assured for wastrel : the liability must have first attached
on it, therefore, before enclosure and devotion to other
useful purposes. Then, after the tinner or bounder has
commenced by cutting the turves, and so marking on the
limits within which he will work, proceedings are to be
taken in the Stannary Courts, of which the owner has
notice ; and sufficient time is allowed before the bounder's
title becomes complete, during which the owner may still
intervene and preserve his rights entire, so as he will exer-
cise them for the benefit of the public. If he abstain
from any interference, it may well be considered that he
has consented to the bounder's proceedings; and the cus-
tomary render of the portion called toll tin may be a very
sufficient consideration to him for what he gives up of his
original exclusive rights () Collier on Mines, p. 33.
Rep. p. 14.
2B
370
COKNWALL AND DEVON.
[CHAP. xvi.
Rogers r,
Brenton.
Stannary
laws.
Ministers'
accounts.
In Eogers v. Brenton, the plaintiff claimed, as " bounder "
or " owner of a pair of bounds," the right, according to the
custom of Cornwall, to dig, get, raise, and carry away for
his own use, tin and tin ore, from and out of the land of an-
other person (q). This claim was disputed by the defendant,
who was stated to be the agent of a body of adventurers who
had been working within or near the said bounds for several
years. It appears that the " tin bounder" the claimant
had not cut or pitched the bounds within living memory, nor
was there any evidence of their commencement, but proof
was given of their annual renewal for seventy years past;
small quantities of tin had been raised, and the customary
toll paid to the lord at different periods, but none later than
forty years before suit. The plaintiff also gave in evidence
" the roll of the Stannary Convocations or Parliament, held
22 Jac. I. ; 1 Car. I. ; 12 Car. I. ; 2 Jac. II. and 26 Geo. II.,
and relied particularly upon the following laws, viz. the 17
& 18 articles (r) of 22 Jac. I. ; 3, 4, & 31 of 12 Car. I. () ;
2 & 4 of 2 Jac. II. (t) ; and part of article 8, s. 1, of 26
Geo. II. (w). These were put in as declarations of the cus-
tom. The commissions under which the convocations 2
Jac. II. and 26 Geo. II. were held were also proved, none
earlier being found (v) ; they showed that the convocation
professed to make new laws, as well as present old customs.
A charter of 23 Hen. VII. was put in, which, among other
things, recognised bounders (bundatores) as being possessed
of tin-works (opera stanni), and their obligation to enter
the description of newly-bounded works in the Stannary
Court (10). Certain extracts from the court rolls of the
stewards of the four Stannaries in the reigns of Hen. VI.,
Hen. VII., Eliz., and Jac. I. were read, to show the early
existence of tin-bounds, or "opera stannaria," proclama-
tions of them in the Stannary Court, and presentments of
the custom generally. Ministers' accounts rendered to the
34.
(. <;-'. Liddell & Others, 26 L.J. Cli. 570;
(k) Sutton's case, 3 De Gex & S. Northey v. Johnson, 19 L.T. 104.
(/) Ke Bodmin Mines, 2G L.J.
Chan. 573.
384 CORNWALL AND DEVON. [CHAP. xvi.
Form of J c | o hereby for valuable consideration sell, assign,
transfer. * i r T
and transfer nnto parts or snares 01 and m a certain
mine or adventure called , situate in the parish of
, in the county of , together with the like
share or proportion of and in all engines, tools, tackle, ma-
terials, ores, halvans, moneys, and all other appurtenances
thereto belonging, together with all dividends and profits in
respect of the said part or share , and all interests, pri-
vileges, arid advantages to be derived therefrom.
As witness my hand this day of one thou-
sand eight hundred and
Witness.
I do hereby accept the said shares, subject
to the same terms and conditions, rules and regulations, as
the said held the same.
Witness.
To the Purser.
Form of The relinquishment should be an absolute surrender
ment. ' ' of the shares into the hands of the company for the
benefit of the other adventurers, and of all interest in the
mine and the engines, machinery, and personal effects of
and belonging to the mines; and it may then be in any
form (n).
Creditors' j\\ merchants, tradesmen, and other creditors of the
llCD. * .
company for goods supplied, labour bestowed, or personal
services rendered in working the mine, have a tacit hypo-
thec or lien on the plant, machinery, materials, and per-
sonal property of the mine. This customary right has
been recognised by statute, and will be enforced by the
Vice- Warden (o).
Ljen on Q n ^ ne o her hand, the company have a lien on the
costs and shares of every adventurer for contribution for costs and
calls duly apportioned and allowed at the several meetings
of the adventurers (p).
(n) Bodmin Mines, 26 L.J. Ch. 570. Laws, p. 108; 6 & 7 Will. IV. c.
'o) 18 & 19 Vic. c. 32, s. 11-14. 106, s. 18; 18 Vic. c. 32, s. 3.
Convoc. 26 Geo. II.; Stan.
SECT, m.] COST-BOOK SYSTEM. 385
There is no custom to enable shareholders to agree Pursers
amongst themselves that calls in arrears shall be consi- to succor
dered debts due from defaulting shareholders to the purser, arrears O f
so as to enable the purser to sue the defaulting share-
holder at law, consequently any such agreement is void;
but the purser may proceed for the recovery of the calls in
the Stannary Court (q).
Although formerly it was considered and has been the Custom to
practice in some companies professing to be established on ^^
the Cost-Book System, to declare a forfeiture of all shares
upon which the calls made thereon had not been paid
within the stipulated time ; there is no principle inherent
in the Cost-Book System which will warrant any such prac-
tice. Lord Cranworth, in Clarke v. Hart, said the cus-
tom " was not shown, it might be almost a universal prac-
tice so to treat it in any particular deeds, but if it was to
be established as a legal right in any particular case, it
must be introduced into the deed " (r).
According to ancient custom, a miner could only be sued Privilege of
in the Stannaries Court (s) ; but this exclusive privilege a
has been taken away (t).
The term " miner," means not only a labouring man, Meaning of
but any person interested in mines, as merchants and m i ne r."
tradesmen supplying goods and articles to a mine, adven-
turers, agents of mines, mineral proprietors, and all other
persons deriving any profit from mines (u).
(q) Hybart v. Parker, 27 L.J. C.P. (0 9 & 10 Vic. c. 95, ss. 67, 141;
120. 12 & 13 Vic. c. 101, s. 18; 15 & 16
(/) Stan. Laws, pp. 21, 42; see Vic. c. 54; Lewis v. Hance, 11 Q.B.
Norway v. Howe, 19 Ves. 143; Pren- 921 ; Newton v. Nancarrow, 15 Q.B.
dergast v. Turton, 1 Y. & C. N.C. 103, 144 ; 19 L.J. Q.B. 314.
13 L.J. 268 Ch. ; Stewart v. Anglo- (u) For the other Cornish customs,
Californian Gold Mines Cy. 21 L.J. see Year Book, H. 4, f. 5, A. B. pi.
393 Q.B. ; Watson v. Eafes, 26 L.J. 6, Bracton, 271, a lib. 4, tr. 3, c. 13,
Ch. 361; Clarke r. Hart, 27 L.J. Ch. s. 2, edit. 1569; Chapman v. Cbap-
615, 6 H.L. Ca. 633. man, March's Rep. of case 82, p. 54 ;
() Stan. Laws, pp. 18, 137 ; Char- Pearce's Stan. Laws ; Smirke's Stan. ;
ters of John & Edward expounded, Stannary Laws published at Truro,
50 Ed. III. ; & 16 Car. I. c. 15, a. 4 ; 4 1752.
Inst. 232 ; Resolu. of Judges, 4 James,
Pearce's Stan. p. 142.
2c
386
SOMERSETSHIRE
[CHAP. xvi.
Ancient
customs
extinct.
SOMERSETSHIRE.
Ancient customs extinct refuse of ancient workings are the present operations
of the miners within the laws of mining or quarrying f
TfiE king's forest of Mendipp, in Somersetshire, was in
ancient times famous for its production of lead ; but mining
operations have long since ceased to be canned on there,
although, recently, some fresh attempts have been made
for ascertaining the value of its mineral wealth. When
the mines were in operation, local laws and customs were
established for their government (i?), but those laws and
customs must now be considered extinct, and should mining
be revived, new laws must be made to suit the requirements
of the district. In the absence of local laws, the general
law of the land must prevail.
Mining or We should observe, that lately one or two companies have
been formed for extracting the lead from the heaps of
refuse on the surface left there from the ancient workings,
and for making the same merchantable; but the opera-
tions of these companies being connected with the surface,
with the exception of some pits which have been made by
the removal of the refuse, do not fall so much under the
laws of mining in general as the laws relating to quarries.
In some cases it may be difficult to decide, whether the
present operations of the miner in this district amount to
what is legally termed " mining" or " quarrying." Mining
usually signifies the working for minerals without disturb-
ing the surface ; whereas quarrying is a disturbance of the
surface, and a laying open of the material beneath the sur-
face. The difference between mining and quarrying has
been already pointed out in this work (w).
quarrying.
(v) Houghton's Compleat Miner,
London, 1687 ; Pettus on Royal
Mines, p. 82.
(w) Ante, pp. 143-150.
SECT, v.] CUSTOMS. 387
GLOUCESTEESH1RE.
FOREST OF DEAN AND HUNDRED OF ST, BRIA VELS.
Ancient customs indefinite. Acts of Parliament 1 Charles I. c. 16 20 Charles II.
c. 348 Geo. JIT. c. 7259 Geo. III. c. 8610 Geo. IV. c. 501 ^ 2
Will. IV. c. 12; 3 4 Will. IV. c. 38; 4 5 Will. IV. c. 59 commis-
sioners appointed their reports. 1^2 Vic. cc. 42, 43 rights of the Crown
and the Free Miner, defined new commissioners ap2>ointed commissioners'
award to be in triplicate.
COAL MINES. Titles, to existing Gales confirmed applications for Gales
before 9th April, 1832, granted by Commissioners extent of Gales defined
rules and regulations] for working Gales prescribed union of Gales special
provisions reddendum on Gales Lord Seymour v. Morrell dispute as to
minimum or dead rent.
IRON MINES. Title to existing Gales confirmed applications for Gales
made prior to 9th April, 1832, granted by commissioners limits to Gales, and
rules and regulations for working them prescribed.
QUARRIES. Title to existing Quarries confirmed, their limits defined, and rules
and regulations for working them prescribed.
COAL AND IRON MINES AND QUARRIES customs to cease on comple-
tion of awards Gaveller's duties recovery of Galeage rents Commissioners
of Woods and Forests may grant Leases claims of the Lord of the Manor of
lilaJceney disputed and overruled Prosper free level colliery meaning of
"level." 24 cj 1 25 Vic. c. 40 aioards of Commissioners declared absolute and
indefeasible Galee's interest in real Estate conditions of certain leases
personal responsibility of persons in possession Gaveller's potcers enlarged.
Powers of Commissioners of Woods and Forests to grant Leases, and Licenses,
enlarged. Compensation respecting surface damage new provisions respect-
ing Gales, labourers 1 cottages, and unlawful trespasses.
THE Royal Forest of Dean and Hundred of St. Briavels Ancient
are situate within that part of Gloucestershire which is customs -
bounded by the rivers Severn and Wye (a). The soil and
minerals belong to the crown, but for many centuries peculiar
privileges in and beneath the surface had been claimed by
certain persons resident in the district denominated " Free
Miners." Those privileges eventually ripened into customs
which among other things conferred upon the " free miner"
a right to work the mines of the forest subject to the pay-
ment of an annual galeage rent or duty to the crown. In
ancient times the practices of the free miners were regu-
lated by a court or jury of the miners, who met in a house
called the Speech-house, which is situated in a very beautiful
romantic part of the forest, and is now used as an inn, a
(a) See History of the Forest, by H. G. Nicholls.
2 c2
388 GLOUCESTERSHIRE [CHAP. xvi.
room being still appropriated to the miners, where, however,
they have now no other privilege than that of attending
there and paying their rents to the officers of the crown.
The court has for some time fallen into disuse, but the
records and other proceedings of the court, extending over
a period of eighty-six years, from 1668 to 1754, have been
preserved, and are now deposited in the office of the Woods
and Forests (&). These records illustrate the ancient usages
and practice of the miners, and treat chiefly of the follow-
ing subjects :
1. Rights and privileges of free minership and the con-
cessions made to foreigners. 2. The time and mode of
serving apprenticeships, the renting of land and keeping
house ; these being essentials to the privilege of working
the iron or coal. 3. Raising of money for the relief of
miners who are maimed or hurt, and for preserving their
privileges. 4. The protection of old workings. 5. Penalties.
Customs From a perusal of these documents it will appear that the
indefinite, rights o f the crown and the customs of the miners were
very indistinctly defined, and totally inadequate to the
proper or effectual working of the mines. The crown
asserted a right to control the erection of engines and other
machinery, without which the most valuable coal could not
be raised to the surface ; the miner sold or assigned gales
to persons who were foreigners, with a very questionable
title, and had for some time been working the mines beyond
a depth authorized by the customs. These and similar
irregularities required the interference of the Legislature,
i Chas. I. and so far back as the reign of Chas. I. an Act was passed
for settling the bounds and limits of the forest (c) ; and in
20 Chas. the 20th year of Chas. II. (cap. 3), another Act was passed,
entitled " An Act for the increase and preservation of
timber within the Forest of Dean," under and by virtue of
which Act it was declared that every gift, grant, estate, or
interest taken or obtained of or in the enclosure or waste of
the said forest, or of or in any of the mines or quarries, or
(6) See Houghton's Compleat Miner, Court of St. Briavels; Smirke's Stan.
London edit. 1687, which contains the p. 128-132; Doe. d. Thomson v.
Laws and Customs of the Miners in the Pearce, 2 Peake, 242.
Forest of Dean in 41 Articles, together (c) 1 Chas. I. c. 16.
with the Orders and Rules of the
SECT, v.] CUSTOMS. 389
of or within the said enclosure, or any part thereof, should
ipso facto be null and void. In the 48th year of the reign 48j3eo.lII.
of Geo. III. another Act was passed, whereby it was again '
enacted that all gifts, grants, or any other estate or interest
taken or obtained of or in the said enclosures of the forest
should be void (d) ; and in the same reign another Act was 59 Geo. III.
passed, which provided for the better collection and re- '
covery of the gale rents in the forest (e). By 10 Geo. IV. lOGeo. IV.
c. 50, being an Act to consolidate and amend the laws re-
lating to the Royal Woods and Forests, all previous Acts re-
lating to His Majesty's Woods and Forests, so far as they are
inconsistent] with or repugnant to the provisions of that Act,
are declared to be void, and by section 100 power is given
to inquire into unlawful enclosures, purprestures, encroach-
ments, or trespasses. In the reign of Will. IV. the privi- * & 2 Al-
leges of the free miners on the one hand, and the rights of
the crown on the other, had become so uncertain that it was
felt necessary to apply again to Parliament; the result was
that an Act was passed for ascertaining the boundaries of
the forest, and for inquiring into the rights and privileges
claimed by the free miners of the hundred of St. Briavels,
with power to appoint commissioners to examine and re-
port thereon (/). Commissioners were appointed (g\ and Commis-
on the 7th July, 1832, they presented their first report, appoTnted ;
which related to the constitution, power, jurisdiction, and their re-
practice of the court of St. Briavels, the condition of the p<
prison belonging thereto, the treatment of and provision
made for the persons confined therein, and the general
management and conduct of the said prison. On the 1st
May, 1834, the commissioners made another report, which
related to the boundaries of the forest, and of the lands of
His Majesty's subjects within the same, and the rights and
interests of persons occupying or claiming to be interested
in lands or tenements within the bounds of the said forest ;
the origin or alleged origin of such rights and interests, and
also the dates, value, and other particulars respecting pur-
(O 48 Geo. III. c. 72. 0) Commission dated 21st Jany.
(e) 59 Geo. III. c. 86. 1832.
if) 1 & 2 Will. IV. c. 12, extended
by 3 & 4 Will. IV. c. 38 ; 4 & 5 Will.
IV. c. 59.
390 GLOUCESTERSHIRE [CHAP. xvi.
prestures, encroachments, and trespasses in and upon the
soil of His Majesty within the said forest. On the 13th
June, 1835, the commissioners made a third report on the
expediency of erecting and forming into one or more
parishes or uniting to and consolidating with any adjoining
or other existing parish the said Forest of Dean, and the
lands lying within the perambulation and regard of the said
forest, or of such parts of the said forest and lands respec-
tively as were extra-parochial. On the 25th August, 1835,
the commissioners made a fourth report relating to the
rights and privileges of the free miners, and in this report
the commissioners admit that the origin and extent of those
rights and privileges were involved in obscurity, but that
certain rights and privileges of free miners for working the
forest mines did exist and might be traced so far back as
the reign of Edward I. On the said 25th day of August,
1835, the commissioners made a fifth and final report, which
related to certain claims of common of pasture within the
bounds of the forest, and the rights and interests of persons
claiming to be owners of, or to have a right to open or work
quarries, and the origin whether by grant, custom, or other-
wise of such several rights and interests.
i & 2 Vic. Subsequent to the reports and in pursuance of the re-
c - 42 - commendations of the commissioners therein contained, two
Acts of Parliament were passed under and by virtue of
which the rights of the crown and the subject respectively
are now to be considered as established. By the 1 & 2
Vic. c. 42, entitled "An Act to empower the Commis-
sioners of Her Majesty's Woods, Forests, and Land
Revenues to confirm the Titles to and to grant Leases of
Encroachments in the Forest of Dqan in the county of
Gloucester," the before-mentioned Act of 20 Car. II. c. 3
is recited, and it is there stated that many encroachments,
notwithstanding the provisions contained in the Act of
King Charles, had been made and were being continued in
the waste lands of the forest, and after reciting the before-
mentioned Act of 1 & 2 Will. IV. c. 12, and enacting that
the second before-mentioned report of the commissioners
should be deposited in the office of Woods and Forests, the
SECT, v.] CUSTOMS. 391
said Act of 1 & 2 Vic. c. 42, gives to the subject a title to
some of the encroachments (A), authorizes the Commis-
sioners of Woods and Forests to grant leases of other en-
croachments (i), and in certain cases to sell the fee-simple
thereof (j) ; and other provisions are made in reference to
such leases and sales (&). The before-mentioned Act of
10 Geo. IV. c. 50, and especially the said 100th section
thereof before referred to, so far as regards purprestures in
and upon the said Forest of Dean, is repealed, but all the
provisions of that Act as regards encroachments or trespasses
made after the passing of the said Act of 1 & 2 Vic. c. 42
to be made or continued in or upon the said forest, are to
remain and be in full force (I). Further provision is made
for inquiring into unlawful enclosures, trespasses, and en-
croachments (ra). The before-recited Act of 20 Car. II.
c. 3 is not to be repealed, except in the case of encroach-
ments provided for by the 18th section.
By the 1 & 2 Vic. c. 43, the crown is declared to be en - l & 2 vic -
titled 1. To the soil of the forest, and to all mines and
minerals within or under the forest subject to certain alleged j^f crown
rights of the commoners. 2. To divers enclosures within
and upon the said forest whilst so enclosed freed from all
claims and demands of other persons whatsoever. 3. To all
mines and minerals within or under any part of the lands
of the hundred of St. Briavels, save and except such mines
and minerals as had at any time been granted by the crown
to the subject, and having been so granted had not after-
wards become re-vested in the crown by purchase or other-
wise. On the other hand, the ancient privileges and Rights of
customs of the free miners of the hundred of St. Briavels miner.
to open mines and quarries in the open lands of the forest,
and also to open mines in all lands within the said hundred
of St. Briavels except in some privileged places specified in
the Act, and to work the said mines and quarries, is recog-
nised by the Act (n).
(A) Sec. 3. (?) Sec. 14.
(0 Sees. 4-7. (m) Sees. 15-17.
(J ) Sec. 8. () See Doe d. Thompson v. Pearce,
(*) Sees. 9-13. 2 Peake, N.P. 242.
392
GLOUCESTERSHIRE
[CHAP. xn.
New com-
missioners
appointed.
Commis-
sioners'
award in
triplicate.
COAL
MINES.
The Act then proceeds to appoint new commissioners (o),
under the title of the " Dean Forest Mining Commissioners,"
whose duties were to consist chiefly 1. In ascertaining
what persons were, or had claimed to be at the time of the
passing of the Act, in possession of or entitled to gales for
coal or iron mines within the said hundred, or stone quarries
within the said forest, or of any pits, levels, or other works
made by virtue of gales for the purpose of working the coal
and iron mines of the said hundred, or of any estate or inte-
rest therein ; and then to make their award in reference
to the said matters respectively (p). 2. To make plans (q)
of the said gales, pits, levels, works, and quarries. 3. To
prepare and settle rules, orders, and regulations for the
future working of the mines and quarries. Divers other
powers and authorities were given to and vested in the
commissioners by the said Act. The commissioners accord-
ingly proceeded and at length completed their labours, and
in due course made their award and plans, and issued the
requisite rules and regulations in pursuance of the Act.
The award conformably to the Act was made and signed in
three parts (r) ; the first part relates to the coal mines of the
hundred of St. Briavels, and is dated 8th March, 1841 ; the
second to the iron mines of the said hundred, and is dated
20th July, 1841 (s) ; the third to the quarries, and is dated
24th July, 1841. Each part of the award in pursuance of
the Act is signed in triplicate and lodged in the following
three places viz. in the office of Lands Revenue Records
and Enrolments ; with the Clerk of the Peace for the
county of Gloucester ; and with the gaveller or deputy-
gaveller of the Forest of Dean ; at either of wliich places
they may be seen and copies thereof obtained upon pay-
ment of certain fees, specified in the Act (t).
The first part of the award of the commissioners ap-
pointed under the Act of 1 & 2 Vic. c. 43 proceeds to
state : " Now, therefore, know ye that we, the above-named
(o) 1 & 2 Vic. c. 43, ss. 1, 13.
O) Sees. 24, 39.
(g~) Sec. 27.
(r) Sees. 32, 33.
(*) Sec. 32.
(V) See Award of Coal and Iron
Mines, with notes, by Sopwith (1841),
and Award relating to Quarries pub-
lished by Commissioners in 1859 ;
post, p. 401.
SECT, v.] CUSTOMS. 393
Thomas Sopwith, John Probyn, and John Buddie (the
Dean Forest Mining Commissioners), do by this our award,
in writing under our hands and seals, ascertain and deter-
mine that the several persons hereinafter named were, at
the passing of the said Act, either as free miners or as
claiming through or under free miners, or as lessees of free
miners, in possession of or entitled to the several herein-
after named gales, for the purpose of working the coal
mines of the said hundred of St. Briavels, that is to say."
Then follow the names, description, and addresses of the Title to
said persons seriatim, with notes attached to each showing gaie^con-
in what capacity their claims were made, whether as free firmed,
miners, or as assignees claiming through or under the free
miners, or as lessees of the said free miners, together with
the nature and extent of their respective estates or interests
therein" (u).
The award further adds the applications of several A PP lica -
1-1111 t f 1 irvl tl0n * r
persons which had been made ior gales prior to the 9th gales made
April, 1832 (v), but which had not been granted, and what, Jj^J"^
if any, steps had been taken by the applicant to work the granted by
said gale, and the said commissioners did then declare (w) th . e c . om "
O ' \ / missionpr.'
that " inasmuch as it appears to us that such last-mentioned
gales can be granted without injury or detriment to any
legally existing gales, pits, levels, or works, whicli were
granted previously to the said 9th day of April, 1832, and
can be reasonably proceeded with, and without injury to the
reasonable claims, or legal or customary powers, of parties
lawfully possessed of or entitled to such gales, pits, levels,
or works, contiguous to the sites of the said gales, for which
applications have been so made and acted upon as afore-
said : Now therefore, we do hereby accordingly in pur-
suance of the powers in the said Act (x) contained, award,
sanction, and confirm the said gales hereinbefore men-
tioned, and which have been applied for as aforesaid. And
further, we do hereby declare and award that no other ap-
plications for gales have been made by free miners since
() Sopwith, pp. 41-59. (w) Sopwith, pp. 65-70.
(v) See Sopwith, p. 59, and sec. 39 (a:) 1 & 2 Vic. c. 43. s. 39.
of 1 & 2 Vic. c. 43.
missioners.
391
GLOUCESTERSHIRE
[CHAP. xvi.
the 9th day of April, 1832, which have been acted upon as
if they had been granted, and whereon works have been
erected and proceeded with under such applications at a
considerable expense, and which can be granted, or reason-
ably proceeded with, without injury or detriment to con-
tiguous works. And which said gales hereinbefore men-
tioned (including the last-mentioned gales hereby awarded,
sanctioned, and confirmed), and the pits, levels, or works
severally made in pursuance thereof, we the said commis-
sioners have described in the 1st schedule hereto annex ed(j/),
and we have set out definite metes and bounds thereto, and
we have caused plans to be made describing the situation of
the said gales respectively, as far as the same could be con-
veniently ascertained ; and which said plans are also here-
unto annexed, and are marked and numbered respectively
as follows (that is to say) : As to the Coleford High Delf
Vein A 1 to A 16. As to the Church way High Delf Vein
B 6, B 7, B 8, B 10, B 11, B 12, B 14, and B 1 6. As to
the Eockey Vein C 6, C 7, C 8, C 10, C 11, C 12, 14,
and C 16. And as to the Park End High Delf or Lowrey
Vein D 6, D 7, D 8, D 10, D 11, D 12, D 14, and DIG.
Extent of And we do hereby award, direct, ascertain and determine
*^at *ke sa ^ a ^ es ? pi ts > l eve l s J or works, shall be of the
extent, and bounded as shown and described in the said
plans, and 1st schedule, and that there shall be paid to Her
Majesty, her heirs, and successors, in respect of such gales,
pits, levels, or works respectively, the several rents,
royalties (z), or tonnage duties set forth and defined in the
said 1st schedule, and at the times and in manner therein
Rules and mentioned. And further, that the mines and works of such
reguia- gales shall be continued and worked in the manner and ac-
cording to the directions contained in the general rules (a),
orders, and regulations framed by us in pursuance of the
powers in the said Act contained, and comprised in the 2nd
schedule hereto annexed (5). And whereas it appears to us
(y) See Schedule to award by Sop- (a) 1 & 2 Vic. 43, ss. 24, 29, 54, 55,
with, pp. 71-167 ; 1 & 2 Vic. c. 43, 56.
ss. 24, 27. (&) See rules and regulations in
(2) 1 & 2 Vic. c. 43, ss. 41, 44, 4G, Schedule to award, Sopwith, pp. 167-
47. 173 ; 1 & 2 Vic. c. 43, s. 24.
fined
SECT, v.] CUSTOMS. 395
the said commissioners, that the said gale, called Newcastle, Union of
whereof Sarah Whitehouse is the owner of one moiety, is so gales<
situated with regard to other adjoining or contiguous gales
and pits of the said Edward Protheroe, the owner of the
other moiety of the said gale, called Newcastle, that it can-
not be separately set out as to metes and bounds, or be
separately wrought without great loss to the parties work-
ing the same, or without producing great injury and detri-
ment to the adjoining or contiguous gales and pits of the
said Edward Protheroe : We do therefore hereby award
that the said Newcastle Gale shall be united (c) with the
adjoining or contiguous gales of the said Edward Protheroe.
And in consideration thereof, he the said Edward Protheroe
has already paid to the said Sarah Whitehouse the sum of
200, which we have directed should be paid to her as a
compensation for her said moiety. And we ascertain and Special
i i -i i i n i provisions
determine that the several persons named in the ord respecting
schedule to this award were at the passing of the said Act so ? ie of the
fiTcllOS
in possession of licenses to erect buildings and machinery
on the soil of the said forest, for the purpose of facilitating
the working of the said coal mines. And we have in the
said 3rd schedule (ct) made a description of the same, speci-
fying the time when such licenses were granted, and the
term for which they were granted, and the annual rents or
other payments thereby made payable to or for the use of
Her Majesty for or in respect of such (e) licenses respec-
tively. And we find it alleged before us that since the
passing of the aforesaid Act, the said Thomas Bennett has
purchased (/) the shares of the said James Bennett
in the ' Nelson,' gale or work, and has thereby be-
come the sole owner thereof ; and that the said Thomas
Bennett and James Bennett have purchased the several
shares and interests of the said Thomas Gardiner and John
and Letitia Bennett, Giles Griffiths, and Thomas Court in
the said * Independent or Churchway Gale,' or work, and
that they have thereby become the sole owners thereof, and
(c) 1 & 2 Vic. c. 43, s. 28. (/) 1 & 2 Vic. c. 43, s. 40, as to all
(fl) See Schedule, Sopwith, p. 174. sales,
(e) 1 & 2 Vic. c. 43, ss. 43, 44, 65.
396 GLOUCESTERSHIRE [CHAP. xvi.
Special that they are now entitled thereto in equal undivided
respecting moieties ; and that the said John Harris has purchased the
some of the several shares and interests of the said Arabella Holt, John
Gagg, William Gagg, Ursula Anna Maria Williams, and
Thomas Ridge, in the said ' Strip-and-at-it,' gale or work,
whereby he has become the sole owner thereof ; and that
the said James Cowmeadow has purchased of the said
Moses Teague, since deceased, the 'Cinderford Bridge
Water Pit,' gale or work, and we find it further alleged be-
fore us, that the said gales called f Pike Pit and Fancy Pit,'
the property of William Todd, are subject to a mortgage (g)
to the said Edward Protheroe the elder ; that the said gales
called l Resolution,' ' Safeguard,' ' Walls' End,' and ' New
London,' the property of the said William Todd and
Robert Todd, are also subject to a mortgage to the said
Edward Protheroe the elder; that the said gale called
' Speculation Level,' in the possession of the said James
Morrell and Robert Morrell, is subject to a claim by the
representatives of the late Mr. George White, of Tripen-
kennet, for the sum of 390 and an arrear of interest ; that
the said gale called f Pillowell Level,' also in the possession
of the said James Morrell and Robert Morrell, is subject to
a claim by Elizabeth Cheese as a mortgagee; that the
shares of the said David Davies in the said gale called
' Catch Can,' are subject to a mortgage to Mr. James
Cockell, and to a claim made by the said James Morrell
and Robert Morrell under an agreement to mortgage ; that
the said gale called ' Brandicks New Level,' the property
of the said William Cook and William Packer, is subject
to a claim by Samuel Barton, under an agreement for a
lease thereof ; that the said gale called ' Worrall Hill Deep
Level,' the property of the said William Lewis, is subject
to a mortgage to Peter Teague, of Coleford, and Thomas
Rosser; that the said work called 'Arthur and Edward
Colliery,' is subject as to ll-12ths thereof, the property of
the said Thomas Butler, to a mortgage to John Posford
Osborne; that some interest in the said gales called
1 Cooper's Level,' * Quidchurch Engine,' ' Old Orles,' and
($0 1 & 2 Vic. 43, s. 40, as to all mortgages.
SECT, v.] CUSTOMS. 397
* Meerbrook High Delf,' is claimed by the said William Special
Crawshay and Moses Teague ; that the said gale called jJJJS*
1 Royal Colliery,' in the possession of the said James Brooks some of the
and Isaac Freest, is subject to a claim for 60, payable to gales '
Mrs. Jane Turner, of Coleford aforesaid, and another claim
of 60 to Mr. Benjamin Johnstone or his representatives ;
that the said gales called l Oaken Level,' and i Church way
Level,' or parts thereof, are subject to a mortgage to
William Edward Spencer; that the shares of the said
David Davies in the said gales called ' Long Looked For,'
and ' Newman Shropshire, or Horse Engine Level,' and
'Branches from Ditto,' are subject to a mortgage to the
said James Morrell and Robert Morrell, and that the share
of the said William James in the said last-mentioned gales
is subject to a mortgage to William Stephens ; that the
said gales called l Independent or Grove Engine,' and ' As
You Like It,' the property of Philip Morse, John Morse,
William Cook, William Packer, David Davies, and Richard
Morse are subject to a lease (h) to the said Edward Pro-
theroe the elder ; that the said gales called ( Union and
Cannop Engine,' are subject to an agreement (h) for sale
thereof to Mary Ann Godwin and William Lawrence
Bevir ; and that the said gales called ' Foxes Bridge,' and
' Great Kemsley Water Pits,' the property of the said
William Montague and Moses Teague, are subject to a
claim by the said Edward Protheroe under an agreement
to pay him a royalty thereon. In witness whereof, we,
the said commissioners, have hereunto set our hands and
seals the 8th day of March, 1841."
In the assignment of the gales to the respective claimants, Redden-
the rents to be paid in respect of each varied in amount,
but a dead or minimum rent was imposed on each. The
terms of the reddendum were as follows (i) : " Rendering
and paying therefore to Her Majesty, her heirs and suc-
cessors, up to Midsummer next, the former galeage rent,
and thenceforward for all such coal as shall be brought out
the sum of 2d. per ton as tonnage, such tonnage to be paid
(A) As to all leases and agreements, (') Sopwitb, pp. 71, 72.
ee 1 & 2 Vic. c. 43, ft. 40.
39S GLOUCESTERSHIRE [CHAP. xvi.
on the 24th day of June and 25th day of December in
every year. And further, so working the said colliery, as
that there shall be wrought and gained in every year, from
Midsummer next, a quantity of not less than 1800 tons.
Provided that if, by any reason whatsoever, in any one year
no coal shall be got in respect of the said colliery, or the
tonnage-rent to be paid for coal got within the year, under
the aforesaid reservation, shall not amount to 15, then
either the full sum of 15 or such other sum, as together
with the amount paid or to be paid for tonnage-rent in re-
spect of coal got within the year (as the case shall be) will
make up the full sum of 15, shall be made up and paid to
Her Majesty, her heirs and successors, on the 24th day of
June in every year."
Lord Sey- This Reddendum clause gave rise to the important case
Morrell ^ ^ or & Seymour v. Morrell, which was tried at the Glou-
cester Summer Assizes, 1850, when the question was
raised whether the commissioners who were appointed
under the 1 & 2 Vic. c. 43, had power under that Act to
adjudge any galeage rent to be payable for coals not
actually worked ; in other words, whether there should be
a dead or minimum rent payable on gales granted by the
crown if no coals were raised (j).
Dispute as For the crown it was contended that, if the Act did not
to mini- authorize such dead or minimum rents, the lessees need
mum rent.
never work the coal except at their own will and pleasure,
and not only not work it themselves, but exclude all the
rest of the free miners in the forest who might possibly be
quite willing to work the coal, and thus injure the public
as well as the crown ; and the 29th, 30th, and 41st sec-
tions of the Act were particularly relied upon. For the
free miners it was contended, that the commissioners had
only poAver to impose a rent on coal actually worked, and
that, therefore, the free miners were not bound to pay
while the mine was not worked (&). On the case coming
before the Queen's Bench in May, 1851, the crown fur-
ther relied upon the 24th, 29th, 34th, 37th, 43rd, and 44th
0') See manuscript Report of case, (&) MS. Rep. p. 28.
pp. 8, 25.
SECT, v.] CUSTOMS. 399
sections of the Act (f) ; and for the miners it was ad-
mitted that there was power for fixing the quantity to be
raised and the amount to be paid in respect thereof. Lord
Campbell then said, " The counsel for the defendant a free
miner having very properly conceded what he thought
could not be denied, I think he is out of court. If there
were the power of fixing the quantity to be got every year
from the mine, and of saying how much was to be paid in
lieu of this, the parties were merely expressing what other-
wise would be implied." Patterson, J., said : " The 24th
section of the Act seemed to give them power, by their
award, to direct how the coals shall be worked ; and, as to
the 41st section, I confess that the ' fifth man' weighs a good
deal with me. It seems to me the dead rent is really in
lieu of the fifth man." Judgment was, therefore, given
for the crown, and dead or minimum rents were declared
to be payable under the Act.
The second part of the award (after reciting the said IRON
>. t MINES
Act of 1 & 2 Vic. c. 43, and the partial award of the coal
mines) (*n), proceeds as follows : " Now, therefore, know
*ye that we, the above-named Thomas Sopwith, John
Probyn, and John Buddie, the Dean Forest Mining Com-
missioners, do by this our award, in writing under our Existing
hands and seals, ascertain and determine that the several f ales , con "
i "r 6 " 1
persons hereinafter named were, at the passing of the said
Act, either as free miners, or as claiming through or under
free miners, or as lessees of free miners, in possession of, or
entitled to the several hereinafter named gales, for the
purpose of working the iron mines of the said hundred of
St. Briavels, that is to say (n) then follow the names,
descriptions, and addresses of the said persons seriatim,
with notes attached to each, showing in what capacity their
claims were made, whether as free miners, or as assignees
claiming through or under the free miners, or as lessees of
the said free miners, together with the nature and extent
of their respective estates or interests therein (o). The
award further adds the applications of several persons
(f) MS. Rep. p. 32. (n) Sopwith, p. 178.
(m) Ante, p. 391. (o) Sopwith, p. 178.
400 GLOUCESTERSHIRE [CHAP. xvi.
Appiica- which had been made for gales prior to the 9th April,
gales made 18^2 (jt>), and what, if any, steps had been taken by the
before 9th applicant to work the said gale, and the said commis-
grantedby sioners did then declare thafr^), "Inasmuch as it appears
to us that such last-mentioned gales can be granted without
sioners. . . , . , ,9 , . , ,
injury or detriment to any legally existing gales, pits, levels,
or works, which were granted previously to the said 9th
day of April, 1832, and can be reasonably proceeded with ;
and without injury to the reasonable claims or legal or
customary powers of parties lawfully possessed of or en-
titled to such gales, pits, levels, or works, contiguous to the
sites of the said gales for which applications have been so
made and acted upon as aforesaid. Now, therefore, we do
hereby accordingly, in pursuance of the powers in the said
Act contained (r), award, sanction, and confirm the said
gales hereinbefore mentioned, and which have been applied
for as aforesaid. And further, we do hereby declare and
award, that no other applications for gales have been made
by free miners since the 9th day of April, 1832, which
have been acted upon as if they had been granted, and
whereon works have been erected and proceeded with
under such applications, at a considerable expense, and
which can be granted or reasonably proceeded with with-
out injury or detriment to contiguous works. And which
said gales hereinbefore mentioned (including the last-men-
tioned gales hereby awarded, sanctioned, and confirmed),
and the pits, levels, or works severally made in pursuance
thereof. "We, the said commissioners, have described in
the first schedule hereto annexed, and we have set out defi-
nite metes and bounds thereto, and we have caused plans
to be made describing the situation of the said gales re-
spectively, as far as the same could be conveniently ascer-
tained, and which said plans are also hereunto annexed,
and are marked respectively as follows, that is to say : A,
B, C, D, E, F, G, H, I, J. And we do hereby award (),
direct, ascertain, and determine, that the said gales, pits,
levels, or works, shall be of the extent and bounded as
00 Sopwith, p. 182. (r) 1 & 2 Vic. c. 43, ss. 24, 39.
(?) Sopwith, p. 183. (s) 1 & 2 Vic. c. 43, ss. 24, 27.
SECT, v.] CUSTOMS. 401
shown and described in the said plans and first schedule, Limits of
and that there shall be paid, to Her Majesty, her heirs and g
successors, in respect of such gales, pits, levels, or works
respectively, the several rents, royalties (t), or tonnage
duties, set forth and defined in the said first schedule (it),
and at the times and in manner therein mentioned. And
further, that the mines and works of such gales shall be R u i es ana
continued and worked in the manner and according to the r ?e ula -
tions
directions contained in the general rules (u), orders, and
regulations framed by us in pursuance of the powers in the
said Act contained, and comprised in the second schedule
hereto annexed (w). And we ascertain and determine,
that the person named in the third schedule to this award
was, at the passing of the said Act, in possession of a
license to erect buildings and machinery on the soil of the
said forest, for the purpose of facilitating the working the
said iron mines. And we have, in the said third schedule (#),
made a description of the same, specifying the time when
such license was granted, and the term for which it was
granted, and the annual rent or other payment thereby
made payable to or for the use of Her Majesty, for or in
respect of such license. In witness whereof we, the said
commissioners, have hereunto set our hands and seals the
20th day of July, 1841."
The question respecting minimum or dead rents payable
on gales has been already discussed (y).
The third and last part of the award, after reciting the QUARRIES.
before-mentioned Act of 1 & 2 Vic. c. 43, and the partial
awards relating to the coal (z) and iron (a) mines, proceeds
as follows : " Now, therefore, know ye, that we, the above-
named Thomas Sopwith, John Probyn, and John Buddie
(the Dean Forest Mining Commissioners), do, by this our
award, in writing under our hands and seals, ascertain and
determine that the several persons hereinafter named were,
(i) 1 & 2 Vic. c. 43, ss. 42, 40, 47. (*) See Schedule, Sopwitli, p. 209.
(M) See Schedule, Sopwith, p. 186 ; (jr) Ante, p. 398.
also sec. 27 of 1 & 2 Vic. c. 43. (z; Ante, p. 392.]
(v) 1 & 2 Vic. c. 43, s. 24. (a) Ante, p. 399.
{to) See Rules and Regulations,
Sopwith, p. 202.
2D
402
GLOUCESTERSHIRE
[CHAP. xvi.
Limits of
gales.
Rules ard
regula-
tions.
at the passing of the said Act (either as free miners or as
claiming through or under free miners), in possession of or
entitled to the several hereinafter-named gales, for the
purpose of working the quarries of the said forest, that is
to say" then follow the names, descriptions, and ad-
dresses of the several persons so entitled to the gales for
working the quarries, with notes, showing in what capacity
their claims were established (&). The award then pro-
ceeds as follows (c) : " And which said gales hereinbefore
mentioned, and the quarries severally made in pursuance
thereof, we, the said commissioners, have described in the
first schedule hereto annexed (d), and we have set out defi-
nite metes and bounds thereto, and we have caused plans
to be made describing the situation of the said gales re-
spectively, as far as the same could be conveniently ascer-
tained ; and which said plans are also hereunto annexed,
and are marked respectively as follows (that is to say : A,
B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S,
T, U, V, W, X, Y, Z, AA, BB, C C, and DD : And we
do hereby award, direct, ascertain, and determine, that the
said gales and quarries shall be of the extent and bounded,
as shown and described in the said plans and first schedule,
and that there shall be paid to Her Majesty, her heirs, and
successors, in respect of such gales respectively up to
Michaelmas next, the former galeage rents and thencefor-
ward for every quarry contained in this award, where the
same shall not exceed twenty yards in length (which length
of twenty yards we determine to be the extreme limit of a
single quarry), the sum of three shillings and fourpence
per annum, and for every additional length, whenever the
same shall extend to ten yards, a further rent calculated
after the rate of three shillings and fourpence per annum
for every twenty yards, such rents to be paid and payable
on the twenty-ninth day of September in each and every
year : And further, that the quarries of such gales shall be
continued and worked in the manner and according to the
directions contained in the general rules, orders, and regu-
See Award, p. 19.
(J) See Award published by Com-
missioners, pp. 2-18.
')
?) Page 20 of Award.
SECT, v.] CUSTOMS. 403
lations framed by us in pursuance of the powers in the
said Act contained and comprised in the second schedule
hereto annexed. In witness whereof, we, the said com-
missioners, have hereunto set our hands and seals the 24th
day of July, 1841" (e).
COAL AND IRON MINES AND QUARRIES.
By the Act 1 & 2 Vic. c. 43, it is provided that " from Customs to
and after the execution of the award of the said commis- ce
sioners hereby appointed specifying such rules and regula-
tions as aforesaid, all and every the customs respecting the
said mines, minerals, and quarries in the said Forest of
Dean, and also in the said hundred of St. Briavels, and the
rights and privileges of or claimed by the said free miners,
other than such as are or may be confirmed by this Act, or
any award specifying such rules and regulations as afore-
said, shall absolutely cease" (/).
The gaveller is empowered to grant gales to free miners Gaveller's
in the order of their application (" are to signify a mine or mines, vein or veins, of
" vein," lead ore, and include parts of or shares in any mine or vein
" mineral as we ^ as en *ire mines and veins, and all minerals contain-
property." ing lead ore ; the word " ore," is to signify lead ore and
belland exclusively, and the words "mineral property" to
include mines and veins of lead, and parts of, or shares
in, any such mines or veins, and the works, rights, and
appurtenances connected therewith, and also lead ore, and
all tools, materials, goods, chattels, and effects used in
searching for, getting, cleansing, or preparing lead ore,
whether such tools, materials, goods, chattels, or effects be
or be found in or upon any mine or works or elsewhere (d).
Jurisdic- By section 16 of the Act, it is provided that the juris-
tion of diction of the said great and small Barmote Courts is to
courts and , . , - < i i < IT-
customs, extend over the whole of the before-mentioned district
called Kingsfield, and also over all the parts of the hun-
dred of High Peak aforesaid, in which Her Majesty, in
right of her Duchy of Lancaster, is entitled to the mine-
(c) A claim to the minerals free made by a proprietor of some land in
from the Customs, has lately been this liberty.
d 14 & 15 Vic. c.94s. 2.
SECT, vi.] CUSTOMS. 413
ral duties ; and the mineral laws and customs for those dis-
tricts are to be such only as are mentioned and comprised
in the Act, and no other alleged custom or practice what-
soever. But by a subsequent section in the Act, it is pro-
vided, that " it shall be lawful for the steward and grand Po y er to
T f-t 11 1 make ne ^
jury, at any great Barmote Court, to make such new and laws at
additional customs, articles, rules, and orders, as to them * n - v gr ^ at
shall seem expedient for the better regulation of the work- Court,
ing and carrying on of the mines within the district under
the provisions of this Act, and for the guidance and pro-
tection of the mines in reference to the working and carry-
ing on of mines within the said district, and also for regu-
lating the practice and proceedings of the great and small
Barmote Courts, or of any views or other proceedings, and
for the execution of any process of such courts, and in re-
lation to any of the provisions of this Act, or of the articles
and customs hereby established; and all such new and
additional customs, articles, rules, and orders as aforesaid,
shall be certified under the hand of the steward and seal of
the said court to the chancellor for the time being of Her
Majesty's Duchy of Lancaster, the same having been pre-
viously submitted to the lessee, if any, for the time being of
the duties of lot and cope, and approved of in writing by
him ; and the same shall be published for three weeks con-
secutively in some newspaper printed in the county of
Derby; and such chancellor may, after such publication,
either allow or disallow such new and additional customs,
articles, rules, and orders, or any of them ; and such of the
new and additional customs, articles, rules, and orders as
shall be so allowed by such chancellor, shall forthwith,
after the approval thereof, be sealed with the seal of the
said Duchy of Lancaster, and laid before both Houses of
Parliament (if Parliament be then sitting, or, if Parliament
be not sitting, then within five days of the next meeting
thereof), and no such new or additional custom, article,
rule, or order, shall have effect until six weeks after the
same shall have been so laid before both Houses of Par-
liament ; and any new or additional custom, article, rule,
or order so allowed and laid before Parliament as aforesaid
4JL4 DERBYSHIRE [CHAP, xvi
shall, from and after the expiration of such period of six
weeks, be of the same force and effect as if the same had
been enacted by authority of Parliament, unless the same
shall by vote or resolution of either house of Parliament
be objected to ; and such new and additional customs, ar-
ticles, rules, and orders shall be carefully preserved by the
steward : Provided always, that such new and additional
customs, articles, rules, and orders shall not in any way
affect the rights and interests of owners or occupiers of
land."
Meaning of >pi ie before-mentioned 16th section would seem to have
sections 16 1111 i M <* i 11-11
& 56 when precluded the possibility or any new laws being established;
read to- j^j. ^.j m sec tj on is irreconcilable with the 56th, if it was
gether, . '
intended by the latter section to confer upon the steward
and grand jury, power, at any great Barmote Court, to
make or ordain new laws. The reasonable interpretation
of the two sections combined would seem to be, that any
rules and " customs " which would be prescribed in pur-
suance of the 56th section should be confined to regula-
tions respecting the working of the mines; but however
New laws, this may be, " new and additional customs, articles, rules,
and orders," as they are termed, of a much more extensive
nature, were made by the steward and grand jury of a
great Barmote Court, held at Monyash, on the 5th April,
1859. The new " customs " were approved of by the Duke
of Devonshire as lessee of the duties of lot and cope, and by
the Chancellor of the Duchy of Lancaster; and they were
laid before Parliament, and finally ratified and confirmed,
as required by the Act ; nevertheless, the validity of some
of the new customs is by no means established, and will,
probably, give rise to litigation. It is, indeed, much to
be regretted, that any power was given by the Act to
make new laws, especially by the grand jury of the great
Barmote Court, as that body is entirely composed of work-
ing miners, whose interests, if not opposed, are at all events
of a different character to the interests of the owners of the
soil who have no voice in the making of new laws. As
might have been expected, the new laws materially qua-
lify the laws prescribed by the Act, in a manner, too, by
no means favourable to the proprietor of the land ; and in
SECT, vi.] CUSTOMS. 415
other respects the new laws have not been favourably re-
ceived.
The following is a synopsis of the provisions of the Act,
and the new laws of 5th April, 1859 :
Barmaster (e) and Deputy-Barmaster. Jurisdic-
Sections of Act, 1, 9, 10, 11, 12, 13, 14, 21, 42, 47, g-?|
49, 52. the courts.
New Laws, Art. 58.
Courts (Great Barmote) (/).
Sections of Act, 6, 7, 8, 15, 16, 38, 48, 52, 54, 57.
New Laws, Arts. 22, 23.
Courts (Small Barmote).
Sections of Act, 6, 7, 8, 15, 16, 17, 24, 25, 26, 27,
28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39.
New Laws, Arts. 24, 25, 26, 27, 28, 29, 30, 31, 32,
33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45,
46, 47, 48, 49, 50, 51, 52, 53, 54.
Courts (Practice in).
Sections of Act, 17, 19, 20, 21, 25, 26, 27, 28, 29,
30, 40, 41, 48, 51, 52, 53, 54.
Costs.
Section of Act, 53.
New Laws, Arts. 52, 53.
Interpleader.
Section 46.
New Laws, Arts. 54, 55.
Jurors (g).
Sections 22, 23, 24, 38, 39.
New Laws, Arts. 13, 14, 15, 16, 17, 18, 19, 20, 21.
Limitation of Action.
Section 51.
Penalties.
Sections 47, 50.
Steward.
Sections 3, 4, 5, 21, 24, 31, 32, 33, 38, 43, 44,
45, 49.
New Laws, Art. 26, 42, 46, 47, 48, 50, 51, 57, 58.
(e) Arkwright v. Cantrell, 7 Ad. & (/) Sybray v. White, suprfc.
Ell. 665 ; Sybray v. White, 1 M. & W. (g) Sybray v. White, supra,
435.'
416 DERBYSHIRE [CHAP. xvi.
Crown. By the 57th section of the Act it is provided that
nothing therein contained shall prejudice or diminish the
rights or privileges of the Queen, her heirs and successors,
either in right of her crown or her Duchy of Lancaster.
NEW LAWS The schedule of articles and customs appended to the
April 5 1859 ^- ct are very similar to those hereafter set out (7t) ; we have
not, therefore, thought it necessary to insert them in this
place. The following are the new and additional laws
made on 5th April, 1859 :
Meaning of 1. The word 'buddling' shall be substituted for the
** bud-"
tiling." word 'briddling' in the 5th article of the High Peak
Mining Customs and Mineral Courts Act, 1851, and the
said 5th article is to be read and construed as if the word
'buddling ' and not the word ' briddling ' had been originally
inserted therein.
Form of 2. On any person transferring any mine or vein, or
transfer of , . - . i
a mine. any share or interest therein to any other person, the trans-
feror and transferree shall both execute a transfer in the
words or to the effect following, namely :
FOEM OF TRANSFER.
"I [A. B.] of in the County of [Derby,
lead miner] in consideration of the sum of paid
to me by C. D., of in the County of [Derby,
lead miner] do hereby grant, transfer, and convey unto
the said C. D. all that mine [or, all those my three twenty-
fourth shares of and in a mine] called the
situate in the liberty of in the district of Kings-
field, in the hundred of High Peak, in the county of Derby,
and the rights, works, and appurtenances connected with
the said mine ; and also the lead ore and all tools, mate-
rials, goods, chattels, and effects used in searching for, get-
ting, cleansing or preparing lead ore in or about the said
mine ; To HOLD the said mine [or the said shares of and
in the said mine] unto the said C. D., his heirs and assigns ;
and [of and in] the said chattels, unto the said C. D., his
executors, administrators, and assigns, subject to the provi-
sions of the High Peak Mining Customs and Mineral
(K) Post, p. 422.
SECT, vi.] CUSTOMS. 417
Courts Act, 1851 ; AND I the said C. D. do hereby accept
and undertake to hold the said mine [or the said shares of
the said mine] chattels and premises subject to the same
provisions. As WITNESS our hands and seals the
day of in the year One thousand eight hun-
dred and
" Signed sealed and delivered by the above-named A. B.
and C. D. in the presence of
"And in such transfer the true consideration for the
making thereof shall be stated in words at length ; and on
transfer being presented to the barmaster or deputy bar-
master, duly stamped and executed, and proof being given
to his satisfaction of the due execution thereof, the bar-
master or deputy-barmaster shall enter such transfer in the
book to be kept by him, as mentioned in the 14th section of
the High Peak Mining Customs and Mineral Courts Act,
1851 ; and every such transfer, when so entered, shall be
valid and effectual, and the entry thereof in the barmaster's
book shall be prima facie evidence of the due making and
execution of such transfer.
" 3. When any person entitled to any mine or vein, or Bank-
any share or interest therein, shall become bankrupt, or
take the benefit of any Act for the relief of insolvent
debtors, a certificate of the appointment of an assignee or
assignees of his estate, when presented to the barmaster,
shall be entered by him in his said book.
" 4. When any person entitled to any mine or vein, or Death,
any share or interest therein shall die, having devised or
bequeathed the same, the probate of his will and all codi-
cils thereto (if any), or letters of administration, with his
will and all codicils thereto (if any) annexed, when pre-
sented to the barmaster, shall be entered by him in his said
book, so far as the same relates to the devise or bequest of
any such mine or vein, or any estate or interest therein.
" 5. A miner who has raised ore shall not proceed to Measuring
have his ore measured in the absence of the barmaster, un- ore -
der the 7th article of the High Peak Mining Customs and
Mineral Courts Act, 1851, unless the barmaster shall neg-
2E
418
DERBYSHIRE
[CIIAF. xvi.
Finder of
new vein.
As to no-
tice of
unworked
mines.
lect or refuse to attend to measure the ore, at a time and
place of which the miner shall have given the barmaster
three previous days' notice in writing.
" 6. The finder of any new vein shall be entitled to pur-
chase, at such price as the barmaster and any two or more
of the grand jury may fix and determine, the meer set out
for and belonging to the lessee for the time being of the
duties of lot and cope, or to Her Majesty or her successors
(as the case may be), under the 10th article of the High
Peak Mining Customs and Mineral Courts Act, 1851, if
such lessee or Her Majesty, or her successors (as the case
may be), shall neglect or refuse, duly and reasonably to
work such meer.
" 7. In all cases where the barmaster finds a mine or
vein neglected and not wrought, from whatever cause, he
may, 011 the application of any person or persons, deliver or
send to the owner or reputed owner of such neglected mine
or vein, the notice required by the 19th article of the High
Peak Mining Customs and Mineral Courts Act, 1851, to
be sent to such owner, or reputed owner ; and such notice
may be delivered personally, or may be sent by the bar-
master by post, directed to such owner or reputed owner.
Where any of the owners or reputed owners of a mine or
vein neglected, and not wrought, are not known to the bar-
master, it shall be sufficient if the barmaster shall put up
the notice required by the said 19th article, on or near the
mine, and also in some other conspicuous place within the
liberty in which the mine or vein is situate, and shall de-
liver or send to any one of such owners or reputed owners
as may be known to him (if any be known to him, but not
otherwise), a copy of such notice ; and after the notice re-
quired by the said 19th article shall have been given as
aforesaid, it shall be sufficient if the barmaster and two or
more of the grand jury shall inspect the said mine or vein
at the expiration of the three weeks mentioned in such no-
tice, and shall sign a certificate that the neglected mine or
vein has not been reasonably worked to their satisfaction,
and that no sufficient reason has been assigned to them for
icx. vi.J CUSTOMS. 419
not working the same, and, thereupon, the barmaster, in the
presence of two or more of the grand jury, may give such
mine or vein to any person or persons willing to work the
same.
" 8. Instead of the space of six days limited by the 20th p ar tncrs
article of the High Peak Minin^ Customs and Mineral refusin s
to work
Courts Act, 1851, a person having shares in a mine shall m i ne .
not forfeit his part or share to his partners unless he re-
fuses to join his partners or the owners of the other shares
in working the same, or to pay his proportion of the ex-
penses of working the same for the space of twenty-one
days after the same has been demanded by the party com-
plaining, or his agent.
" 9. Where the owners or partners of or in any mine p ar t ne rs.
or vein exceed three in number, they may, from time to
time appoint and register with the barmaster, an agent
being a partner or not, in whose name, when registered,
actions may be brought and defended in the small Barmote
Court, for and on behalf of the owners of the mine or vein,
and upon a judgment or order against such agent execu-
tion may be levied on the mineral property of the owners
of the mine or vein on whose behalf the agent may sue or
be sued.
" 10. The actions of title which are authorized to be Actions.
brought and maintained by the 20th article of the High
Peak Mining Customs and Mineral Courts Act, 1851, as
varied by the 8th new article hereinbefore contained, may
be brought and maintained in the name of such registered
agent as aforesaid, for and on behalf of the persons who,
under the two last-mentioned articles are entitled to bring
and maintain actions of title in the small Barmote Court in
the cases therein mentioned, and the persons on whose be-
half such actions shall be brought shall be liable and en-
titled in the same manner as if such actions had been
brought and maintained in their own names.
D
"11. The plaintiff or defendant in any action shall not
be entitled to require a view unless he should -have given
notice thereof in writing to the barmaster ten clear days
DERBYSHIRE
[CHAP. XYJ.
Consoli-
dating
titles.
Interpre-
tation of
new laws.
WAPEN-
TAKE OF
WlRKS-
WORTH
AND
PRIVATE
MANORS.
Hassop
excluded.
Jurisdic-
tion of
courts, and
customs.
at the least before the day appointed for the trial, instead
of six clear days as required by the 22nd article of the
High Peak Mining Customs and Mineral Court Acts, 1851.
"12. The title to veins shall not be consolidated under
the 27th article of the High Peak Mining Customs and
Mineral Courts Act, 1851, excepting with the consent in
writing of the barmaster and grand jury."
By the 59th article, the second section of the Act (i) is
to apply to the construction of the foregoing new laws, unless
there be something in the context of the Act, or the articles,
customs, rules, or orders repugnant to such construction.
The mineral customs, and the jurisdiction and practice
of the Barmote Courts within the soke and wapentake
of Wirksworth, and within the private manors of Ash-
ford, Stoney Middleton and Eyam, Hartington, Litton,
Peak Forest, Tides well, and Youlgreave, in the High
Peak, and of Crich, in the Low Peak, are defined
and amended by the 15 & 16 Vic. c. clxiii. (f). Hassop
and other manors are not included in the above Act or the
before-mentioned Act relating to the High Peak, con-
sequently those manors must still be governed by the
ancient customs.
By section 25 the jurisdiction of the great and small
Barmote Courts for the soke and wapentake of Wirks-
worth is to extend over the whole of the Kingsfield
within the said soke and wapentake, and the jurisdiction
of the great and small Barmote Courts of the said several
manors or liberties respectively is to extend over such
manors or liberties respectively ; and the mineral laws and
customs of the said soke and wapentake, and manors or
liberties, are to be such as are mentioned and comprised in
the Act, and no other alleged custom or practice is to be
valid after the passing of the Act : Provided, nevertheless,
that nothing in this Act contained is to extend the
mineral laws, usages, and customs by the Act defined and
amended, over any lands or hereditaments within any of
(i) Ante, p. 412. sees. 26 & 44, as to how far Eyam is
(/) Vide preamble of the Act, and affected by the Act,
SECT, vi.] CUSTOMS. 421
the manors or liberties hereinbefore mentioned, which are
not now subject to mining customs, nor be held to subject
or make liable any lands or hereditaments to the said
customs which are now exempt therefrom, nor to give
authority to search for mines and veins of lead ore, in or
upon any lands or hereditaments over which the mineral
customs of the said Kingsfield, or of the said manors or
liberties, or any of them, which have not before been sub-
ject to the customs (&). The interpretation of the words
"mine," "vein," "ore," "mineral property," is the same
verbatim as that contained in the High Peak Act, 1851 (I) ;
but there is no clause in the present Act similar to that
which was introduced in the High Peak Act, for making
new laws and customs.
The rights and privileges of the crown are not to be Crown,
prejudiced, diminished, altered, or taken away by the sta-
tute (in) ; nor the right of the proprietors of spar and lime- Manor of
stone under certain lands in the manor of Crich (n). Cnch.
The following is a synopsis of the other matters pro-
vided for by the 15 & 16 Vic. c. clxiii. :
Barmaster and Deputy Barmaster. Jurisdic-
Sections of Act, 6, 18, 19, 20, 21, 22, 23, 30, 42, tion and
practice of
OU, Oo. the courts.
Courts (certiorari).
Sections of Act, 38, 39, 60.
Courts (jurors in).
Sections of Act, 31, 32.
Courts (Small Barmote).
Sections of Act, 11, 12, 16, 17, 24, 25, 63.
Courts (Great Barmote).
Sections of Act, 11, 12, 13, 14, 15, 16, 17, 24, 25
63.
Courts (practice in).
Sections of Act, 27, 28, 29, 33, 34, 35, 36, 37, 40,
41, 48, 49, 57, 61, 62.
Interpleader.
Section of Act, 54.
(k) Sec. Go. 0) Sec. 68.
(0 Ante, p. 412, () Sec. 66.
422 DERBYSHIRE [CIIAF. xv
Jurors.
Sections of Act, 10, 43, 44, 45, 46, 47.
Limitation of action.
Section of Act, 59.
Penalties.
Sections of Act, 55, 56.
Steward of Wirksworth Barmote Court and of Private
Liberties.
Sections of Act, 3, 4, 5, 6, 7, 8, 9, 10, 30, 41, 42,
51, 52, 53, 58.
Witnesses.
Section of Act, 10.
CUSTOMS. rp] ie following is a schedule of articles and customs com-
prised in and confirmed by the statute :
All sub- l. It is lawful for all the subjects of this realm to
realm may search for, sink, and dig mines or veins of lead ore upon,
dig for i n? or under any manner of lands, of whose inheritance
soever they may be (churches, churchyards, places for
public worship, burial-grounds, dwelling-houses, orchards,
gardens, pleasure-grounds, and highways excepted) (o) ;
but if no vein of ore be found, or if the founder meers be
not freed as provided by the eleventh article, and the
person making search abandon it for fourteen days, the
land must be levelled and made good by the person
making the search within the space of twelve clear days,
after the expiration of the said fourteen days, or the owner
of such land may level and make good the same, and re-
cover the expenses thereof from the miner in an action of
debt in the small Barmote Court or in the County Court :
Provided always, that nothing herein contained shall pre-
vent or hinder the miner from following and working his
vein, and searching for and getting lead ore under such
places. CC excepted places as aforesaid at a lower depth than fifteen
yards from the surface ; but in case by so doing he shall
damage or injure any such excepted places, or the surface
(o) Gilbert v. Tomison, 4 D. & R. 1317; Lynn Regis v. Taylor. 3 Lev,
222; Beresford v. Bacon, 2 Lutw. 160.
SECT, vi.] CUSTOMS. 423
thereof, the owner or reputed owner and occupier may
recover from such miner compensation for such damage or
injury, by action in the County Court if the damage shall
not exceed fifty pounds, or otherwise by action in the
superior courts ; but in case the owner or reputed owner or
occupier of such excepted place as aforesaid apprehends
that such working is carried on at a less depth than fifteen
yards from the surface, or will endanger the security of
such excepted places, the steward and grand jury shall
have power to suspend the working of such vein, or to
direct the working thereof, so as to prevent such damage.
" 2. In aU cases the landowner shall have power to sell %**%**
and dispose of the calk, feagh, spar, and other minerals, minerals
and rubbish (except lead ore), and to remove the same i^ 1 '*
from his land so soon as the lead ore has been extracted
from it, when and as often as he thinks proper, and when
not required for the use of the mine, but not so as to
destroy or injure any mineral property, without the con-
sent of the barmaster and any two members of the grand
jury : Provided always, that the landowners shall have the
power of removing such calk, feagh, spar, and other mine-
rals and rubbish at the expiration of eighteen months after
the same shall have been raised, notwithstanding all the
lead ore may not have been extracted therefrom; pro-
vided also, that the calk, feagh, spar, and other minerals
and rubbish now raised, and from which the lead ore has
not been extracted, shall not be removed until after the ex-
piration of eighteen months from the passing of this Act.
" 3. The barmaster and every deputy barmaster shall Dish to bo
. , ,. , ,. A i i Provided
provide a dish or measure for measuring the ore, to be f or mca-
adiusted as hereinafter mentioned, and they shall forfeit a s f cmc 'it
. , of ore.
sum not exceeding two pounds every time they are re-
quired to measure ore at any mine and are unprovided
with such dish or measure, such penalty to be recovered
and received for his own use by the person who shall have
required the ore to be measured, by an action in the
County Court. The dishes or measures for the wapentako
of Wirksworth and manor of Crich respectively are to be
424 DERBYSHIRE [CHAP, xvi
adjusted in the presence of two of the grand jury, accord-
ing to the standard brazen dish deposited in the moot hall
at Wirksworth, and if such standard brazen dish be at any
time hereafter lost or destroyed, or become unfit for use,
then the dishes or measures for the said wapentake and
manor respectively shall be adjusted in like manner as the
dishes or measures for the other manors or liberties men-
tioned in this Act ; the dishes or measures for the said other
manors or liberties shall be adjusted in the presence of two
of the grand jury, and shall contain fifteen pints of water.
Ways to " 4. The barmaster, together with two of the grand jury,
s ^ ia ^ P rov id e tne miners a way, either for foot passengers
or carts as may be required, from the highway lying most
convenient to the mine, and also from the mine to the
nearest running stream of water, not being ornamental
water or a private fishery, such ways to be set out in as
short a course as may be practicable and reasonable, but not
to enter any such excepted places aforesaid. No compen-
sation is to be claimed by the occupier or landowner for
such ways, but such ways are not to be considered public,
and the use thereof is to be limited to persons and pur-
poses connected with the mine. The parties entitled to use
the way may make sufficient ways for use, and shall keep
the same in repair ; and if any such way shall pass over any
enclosed lands, the owner or owners of the said mine shall,
previously to using the same, set up and make good and
proper gates or stiles, as the case may require, and keep
such gates or stiles, with all proper fastenings, in a
good state of repair, to the satisfaction of the barmaster :
and may also use for mining purposes the water from the
nearest running stream, but so as not to defile the waters
of such running stream, or to lessen the same so as to
deprive cattle of a sufficiency of water therefrom. If the
owner or occupier of any land is dissatisfied with the mode
in which any way is set out by the barmaster, or with the
mode in which any such way is used by the miner, such
owner or occupier may apply to the steward, and the
steward shall thereupon inquire into the matter, and shall
in a summary way make such orders respecting the setting
SECT, vi.] CUSTOMS. 425
out or user of the said way as to him shall seem just, and
such way shall thereafter be set out and used in such
manner only as the said steward shall direct.
" 5. Every miner shall, so long as his mine shall be Miner en-
worked, be entitled, without making any payment for the g 1 ^^ US
same, to the exclusive use of so much surface land as shall
be thought necessary by the barmaster and two of the
grand jury, and be set out by them from time to time for
the purpose of laying rubbish, dressing his ore, huddling,
making meers or ponds, and conveying water thereto, and
any other mining purposes. The miner shall in all cases
before he commences any search or uses any land make
fences sufficient for the protection of cattle from any Fences,
injury which might arise from his operations, and keep the
fences so from time to time to be set up in sufficient repair,
if required by the landowner or occupier so to do : Pro-
vided always that nothing herein contained shall entitle
any person to use any lands for the purpose of huddling Not to bud-
old hillocks which at the time of such huddling shall be j^ k g ld hiN
grassed over or otherwise cultivated (notwithstanding a
mine may be in workmanship), without rendering and
paying to the owner of such lands one thirtieth part in
value of all such lead ore as shall be found and gotten
in and from such old hillocks, as and when such lead ore
shall have been made merchantable and fit for smelting,
and shall have been measured by the barmaster, and (if
required by such landowner) before the same lead ore shall
be removed and taken away.
" 6. Any person may transfer his interest in any mine Interest in
or vein to any other person by causing an entry of such
transfer to be made by the barmaster in the book to be
kept by him as herein-before mentioned in this Act, and
such transfer, when so entered, and not till then, shall be
valid and effectual ; and any person may require the bar-
master to enter any grant, conveyance, probate of will, or
other assurance hereafter to be made relating to any mine,
in the book to be kept by him, which entry shall contain
the date, names, and descriptions of parties, and con-
sideration of the grantor other assurance, and -if a will, the
426 DERBYSHIRE [CIIAP. xvi.
dates and name of the testator, and devisee, and date of
probate, and name of court where proved, and the name
and description of the mine or mineral property described or
referred to in such document ; and the barmaster shall be
required to make such entry accordingly on having the
original document produced to him for that purpose, and
shall endorse on such document a certificate of the date of
such entry, and the page of his book in which it is made,
and sign the said certificate, which certificate so endorsed
shall be taken and allowed as evidence of such entry in all
courts of law and equity whatsoever ; and every document
so entered shall in all questions of title have priority over
all other documents hereafter made or executed which are
not entered in the barmaster's book, and such documents as
are so entered shall have precedence over each other accord-
ing to their respective dates of entry (p)
Measuring " 7. When ore has been raised by any miner, and he
shall desire such ore to be measured, the miner shall give
the barmaster three days' notice of the time he intends to
measure ; and if the barmaster neglect or refuse to attend,
then the miner may employ any two persons, one of them
being on the grand jury, who shall measure such ore, and
lay the duties aside for the use of the persons entitled
thereto.
Ore not to "8. No person shall remove any ore from the mine
unmmea- un l ess an( l until the same shall have been measured by the
sured. barmaster, or by such two persons as aforesaid in the event
of the non-attendance of the barmaster, upon pain of for-
feiting the full value thereof to the person for the time
being entitled to the duties of lot and cope ; and in case of
non-payment of such value, after six clear days' notice re-
quiring the same shall have been given by the barmaster to
the miner, or affixed in or upon some part of the mine or
the works thereof, the mine at which such ore was got
shall be forfeited to the person for the time being entitled
to the said duties ; and possession thereof may be recovered
by action of title in manner hereinafter provided.
(p) Edwards v. Harben, 2 T.R. 589.
SECT, vi.] CUSTOMS. 427
" 9. The duties heretofore called the duties of lot and JLt and
cope are and shall be payable in the said soke and wapen- cope '
take to the Queen and her successors, or to her or their
lessee for the time being, and in the said several manors or
liberties, to the several persons in this Act mentioned to be
respectively entitled to the mineral duties, and to their re-
spective heirs or assigns, or the parties entitled in remainder
or reversion, or after or subject to the estates or interests
of such persons. The duty called lot is and shall be such
as is hereinafter mentioned ; that is to say, in the said soke
and wapentake one thirteenth part of all ore raised ; in the
manor or liberty of Crich, one ninth part of all ore raised ;
in the manors or liberties of Ashford, Hartington, Peak
Forest, Tideswell, Stoney Middleton and Eyam, Youl-
greave arid Litton, one thirteenth part of all the ore
raised (q). The duty called lot is to be set apart and taken
by the barmaster when he measures any ore. The duty
called cope is and shall be such as is hereinafter men-
tioned ; that is to say, in the said soke and wapentake the
duty called cope is and shall be the sum of sixpence for
every load of ore measured ; in the manors or liberties of
Crich and Ashford, the duty called cope is and shall be the
sum of sixpence for every load of ore measured; in the
manors or liberties of Hartington, Peak Forest, and Tides-
well, Stoney Middleton and Eyam, Youlgreave and Litton,
the duty called cope is and shall be fourpence for every
load of ore measured. Every such load as aforesaid is to
contain nine dishes, whereof each dish in the said soke and
wapentake, and in the said manors or liberties respectively,
is to be of the capacity provided by the third article with
respect to the said soke and wapentake, and the said manors
or liberties. The said duties of lot and cope are and shall
be payable in addition to the payments mentioned in any
other article comprised in this schedule. And if any
person shall neglect or refuse to pay the said duty or cope, Lot and
the same may be recovered in the said soke and wapentake ^ r r a c b "j
by the barmaster, on behalf of the Queen and her sue- at law.
(
mineral not being a new vein), and the rither during that
distance in all parts exceeds six feet in thickness, then they
430 DERBYSHIRE [CHAP. xvr.
are to be considered and treated as two distinct veins so
long as they so continue asunder, but whenever they meet
the elder or prior title shall take the vein.
Disputes, " 15. In any dispute where the priority of title shall
how settled. come j n q ues tion, the longest continued ownership shall
prevail ; but all gifts from tho barmaster shall be con-
sidered as the origin and commencement of the title, and
workmanship prior to such gift (if any) shall not avail;
and in all cases. the jury on the trial shall decide the fact
of such priority.
Actions at " 16. If any person shall claim title to any mine, the
law - claimant may commence an action in the Small Barmote
Court, by causing a plaint to be entered in the book herein-
before mentioned ; and if any miner shall commit a tres-
pass in the mine or vein of any other person, the person
aggrieved may commence an action in the Small Barmote
Court, by causing a plaint to be entered in an action of
trespass, and may proceed to trial in the Small Barmote
Court, and shall there recover possession of the said mine
in the action of title or damages, to be assessed by the
jury, for the said trespass ; and any person claiming a debt
against a miner for articles furnished to a mine, or for
mining purposes, or for work or labour in, upon, or in
respect of any mineral property, may cause a plaint to be
entered in an action of debt, and shall annex the particu-
lars of his debt to the summons, and proceed to trial in the
Small Barmote Court, and shall there recover such amount
(if any) as upon proof shall appear to be due to him ; but
no evidence shall be admitted of any items in an action of
debt not mentioned in the particulars annexed to the sum-
mons (r).
11 17. No miner or other person shall, except as herein-
after mentioned, bring more than one action of title to
recover the same mine : provided always, that the steward
shall in any case whatever, whether of title, trespass, or
debt, have the power, if lie shall think fit, to order a new
trial to be had, upon such terms as he shall think reason-
able, and in the meantime to stay the proceedings.
(?) Arkwright v. Cantrell, 7 A. & E. 5C5.
SKCT. vi.] CUSTOMS. 431
" 18. Every meer of ground shall contain the quantity Size of
hereinafter mentioned ; that is to say, in the said soke and certain n-
wapentake, twenty-nine yards ; in the manor or liberty of berties.
Ashford, twenty-nine yards ; in the manors or liberties of
Peak Forest, Hartington, Stoney Middleton and Eyam,
Litton and Tideswell, thirty-two yards; in the manor or
liberty of Crich, twenty-nine yards; and in the manor
or liberty of Youlgreave, twenty-eight yards ; and the
miner shall be entitled to take and have set out for him
any proportion of a meer, by payment of an amount of
ore proportionate to the amount payable upon freeing a
whole meer.
" 19. The barmaster, if he finds any mine neglected and Unworked
not wrought, shall, if required so to do by any person or m **'
persons, give to the owner or reputed owner and the agent, if forfeited.
any shall be known to him, notice in writing that such mine
will, at the expiration of three weeks from the time of serv-
ing such notice, if not duly and reasonably worked, be for-
feited ; and if at the expiration of the said three weeks the
mine is not so worked, the barmaster, in the presence of
two or more of the grand jury, may give such mine to any
person or persons willing to work the same ; provided that
nothing herein contained shall authorize the barmaster to
give away such mine if the owner thereof be unable to work
the same by being hindered by water, or for want of air,
so long as the owner thereof is using efficient and diligent
means to the satisfaction of the barmaster and two or more
of the grand jury to relieve such mine.
" 20. The notice required to be given by the preceding, ar- Notice.
ticle shall, where the owner or reputed owner and agent, if
any, of such mine be known to the barmaster, and be resi-
dent within the jurisdiction of the barmaster, be served per-
sonally or left at the usual or last known place of abode of
such owner or reputed owner and agent ; but if such owner
or reputed owner or agent be not residing within the juris-
diction of the barmaster, it shall be sufficient to send such
notice by post, and to prove the delivery thereof in the
same manner as is required by the Act G & 1 Viet. cap.
18, with respect to notices of objection therein referred to,
32 DERBYSHIRE [CHAP. xvi.
and also to affix such notice in manner next hereinafter
mentioned ; and when neither the owner nor reputed owner
nor the agent of such mine is known to the barmaster, then
it shall be sufficient to affix such notice at the place where
the last preceding Great Barmote Court was held, and also
upon some conspicuous place upon or near such mine.
Partner re- "21. If any person has shares in a mine and refuses to
work g mine j om ms partners or the owners of the other shares in work-
to forfeit i n g the same, or to pay his proportion of the expenses of
working the same for the space of twenty-one days after
the same has been demanded by the party complaining or
his agent, he shall forfeit his part and share to his partners,
who shall be entitled to recover the same against such de-
faulting owner in an action of title in the Small Barmote
Court, and the only evidence necessary in such action to
enable the plaintiff to obtain judgment shall be proof that
the plaintiff has worked the said mine, and the amount of the
expenses incurred, and a demand of payment of defendant's
share thereof as aforesaid (such demand to be in writing,
and to be left at the defendant's last known place of abode,
if within the jurisdiction of the Barmote Court, but if not,
then by affixing the same at the place where the last pre-
ceding Great Barmote Court was held, and also on some
conspicuous place upon or near such mine), and the neglect
or refusal of the defendant to pay it for the space of twenty-
one days after the demand ; and it shall be no defence to
such action that the plaintiff is partner or joint owner with
the defendant in the mine or shares sought to be recovered.
Claimant of "22. If any person be possessed of any mine and be
mine to try 1-1 i i -, -,
title within working the same, and any other person claims title thereto,
six months, such claimant shall, within the space of three calendar
months next after he shall have had notice of the same
being in open workmanship, and at all events within six
calendar months after the same shall have been in open
workmanship, whether he shall have had notice or not, as-
sert his claim by an action of title in the Small Barmote
Court, or else such claim shall be barred.
grand jury <; 23. If the barmaster shall, in any matter connected
in what with the duties of his office require a view to be made by
I*UM- -I W
cases.
SECT, vi.] CUSTOMS. 433
the grand jury, or if the plaintiff or defendant in any ac-
tion of title or trespass in the Small Barmote Court, or if
any miner or other person shall, for any purpose, require a
view to be made of the mine or works of any person whom-
soever, then and in each and every of such cases a view
shall be made, and the person so requiring a view shall,
when the grand jury are assembled, deliver to the steward
a bill of directions describing the mine or particular part or Bil i of di _
parts of a mine, or ground, or works, or other matters rections.
or things, which the grand jury are required to view, and
stating the question upon which their opinion is required,
but such bill of directions shall contain no argument or
comment whatever, and thereupon the steward shall openly
read the said bill of directions to the grand jury, and if the
same is, in the opinion of the steward, properly framed,
deliver it to one of the grand jury, who shall take the
same with him for the guidance of himself and the rest of
the grand jury in making their view; but if any person
affected by the said proceeding object to the said bill of
directions or to any cross bill delivered as hereinafter men- Cross bill,
tioned as containing matter of argument, assertion, or com-
ment, not being a description of the mine, ground, or
works, or other matters or things to be viewed, or a state-
ment of the question necessary for the guidance of the
grand jury in making their view, the steward, before de-
livering the bill or cross bill to the grand jury, shall in all
cases decide upon the validity of such objections, and if he
thinks the same well-founded, shall cause the bill or cross
bill to be altered and corrected in such manner as the
steward shall think right, and after making such view, Answer to
such of the grand jury as shall concur in opinion shall in bl11 a l !
answer to such bill and cross bill, if any, write their opinion
and sign it, and such of the grand jury as shall not concur
in opinion with any of their fellow jurymen shall write se-
parate opinions, and sign them, so that the signature of
each of the grand jury shall be affixed either to his own
separate opinion or to that of himself and some other or
others of the said grand jury ; and the said bill and cross
bill, if any, with the opinions, shall be delivered to the
2r
434
DERBYSHIRE
[CHAP. xvi.
Notice of
view.
Cross bill
of direc-
tions.
steward, who shall thereupon openly read the same in the
presence of the grand jury and of the person or persons
who shall have preferred such bill or cross hill ; and such
bill and cross bill, if any, and the opinions thereon, shall be
kept by the steward with the documents of the Barmote
Courts ; but the steward shall if required by the plaintiff or
defendant in the action in which the view shall have been
had, permit such bill and cross bill, if any, and the opinions
thereon, or either of them, to be used by such plaintiff or
defendant for the purpose of evidence on the trial of the
action : Provided always, that no plaintiff or defendant in
any action shall be entitled to require a view unless he shall
have given notice thereof in writing to the barmaster ten
days before the day appointed for the trial ; and the ex-
penses of views shall be paid in manner hereinafter men-
tioned ; that is to say, in cases where the barmaster shall
require such view, the expense shall be borne by the owner
of the mine or other matter to be viewed, provided the
steward shall consider that such view was properly required
by the barmaster, and shall allow such expenses; and in
cases where the view shall be required by a plaintiff or
defendant in any action, the expenses of such view shall
be costs in the cause, and abide the event of the action ;
and in all other cases the expenses shall be paid by the per-
son requiring the view, if no cross bill is presented, and if
a cross bill is presented, then in equal proportions by the
person requiring the view and the person presenting the
cross bill ; any person who may be affected by the proceed-
ings at any view may appoint a shower to accompany the
grand jury, and to show on his behalf the place to be
viewed.
" 24. Any person who may be affected by the opinion of
the grand jury on any view may, if he thinks fit, at the
same view deliver a bill of directions to the said grand jury,
which second bill shall be called a cross bill of directions,
in similar form to the original bill, stating the question on
which their opinion is requested, and the steward shall,
in like manner, immediately after reading the original bill,
read over such cross bill, and deliver the same to one of the
SECT, vi.] CUSTOMS. 435
grand jury, for the guidance of himself and the rest of the
grand jury.
"25. When a bill of directions, and also a cross bill Jury may
shall be delivered to the grand jury at the same view, it ^^ n
shall not be requisite for them to write their opinions until cross bill at
they have completed the view on the cross bill, unless they same view '
think proper to do so, and in no case shall it be competent
for the grand jury to examine any evidence produced by
either party.
"26. If any person shall obstruct the grand jury in any Penalties
view, the grand iiuy shall state such fact in writing, and f ? r ^r
, . . . . ,. " , structmg
return such writing, signed by a majority of them, together view, &c.
with the bill of directions and cross bill, if any, to the
steward ; and the person so obstructing shall forfeit by way
of penalty such sum not exceeding twenty pounds as the
steward shall think fit to impose; and the steward shall
have power to impose a fresh penalty every day on which
such obstruction is repeated ; and if any such penalty be
not paid within seven days after the same shall be imposed,
the steward shall issue his warrant for levying the same.
Before imposing any such penalty, the steward shall give
to the offender ten clear days' notice to show cause, at a
time and place to be named in such notice, why a penalty
should not be imposed.
" 27. If any person shall, by virtue of any sough, engine, Owner to
or other means, tin water or give relief to any mine which P av . for re -
may be under water, and the further working thereof mine under
thereby hindered, the owner of any such mine so re- water>
lieved shall, from time to time, so long as such relief be
continued, deliver to the person giving such relief as afore-
said such portion of all the ore which at any time there-
after shall be got and raised in such mine under the level
at which such relief was given, as the barmaster and grand
jury may from time to time fix and determine, such por-
tion of the said ore to be delivered and dressed and made
merchantable by the owner of such mine, without any
fraudulent concealment or wilful diminution, and to be
discharged and free from all charges in getting and dress-
ing ; and the value of such ore, if it shall not exceed fifty
436 DERBYSHIRE [CHAP. xvi.
pounds, may be recovered in the county court, or, if such
value shall exceed fifty pounds, in one of the superior courts
at Westminster.
" 28. Any person having two or more mines or veins
mines may lying contiguous to each other, or connected by any shafts,
1 " S a ^ ts ' or wavs > mav > "^h the consent in writing of the bar-
master and grand jury, consolidate the titles to such veins,
and an entry shall be made in the barmaster's book to the
effect that the titles to such mines or veins are thenceforth
consolidated, and the said mines or veins shall from the
time of such entry in the said book be considered and
treated as held under one and the new title of the said con-
solidated veins ; and nothing herein contained shall preju-
dice or affect the right or title of any person to any mine
or vein which may have been heretofore united to or con-
solidated with any other mine or vein ; and the possession
or working of any of the mines or veins in such consolidated
titles respectively shall be considered as the working of the
whole thereof, and so long as any part thereof be so worked,
the same shall not be liable to be operated upon by the bar-
master in pursuance of the 19th article.
As to dis- 29. If the grand iurv shall be summoned to anv view
putedwork- , ,.",... i /. i
ings. by any person, not being plaintiff or defendant m any ac-
tion in the Small Barmote Court, for the purpose'of de-
livering their opinion as to whether any other person is
w r orking in any mineral ground belonging to the person
so summoning the grand 'jury, and the majority of the
grand jury assembled at any such view shall give it as
their opinion that such is in all probability the case, but
that for want of workmanship the fact does not yet clearly
appear, it shall be lawful for the steward to require such
other person to give to the steward security for the value of
all ore which may be gotten in his workings thenceforth,
until such time as sufficient working shall have been done
to make the truth appear; and unless security shall be
given unto and to the satisfaction of the steward, it shall be
lawful for him to direct and authorize the barmaster to re-
tain all ore gotten in the workings of such other person so
SECT. VL] CUSTOMS. 437
failing to give security, until such security shall be given,
or until sufficient further working shall have been done to
enable the grand jury at any adjourned view to form a
satisfactory opinion ; and if the grand jury assembled at
any such adjourned view, or the majority of those so as-
sembled, shall state their opinion to be that the workings
of the person originally summoning the grand jury, and
of such other person, form one and the same title, the
steward shall thereupon order the barmaster to deliver
to the person who shall have originally summoned the grand
jury the ore which shall have been so retained as aforesaid,
or if security shall have been given as aforesaid, then the
person who shall have originally summoned the grand jury
shall be entitled to the benefit of such security, to the ex-
tent of the value of the ore which shall have been gotten
by such other person as aforesaid since the original view,
and shah 1 be entitled to use the name of the steward, if ne-
cessary, for enforcing such security, and if either party
feels himself aggrieved, such party may prosecute his claim
in the Small Barmote Court."
The most remarkable feature of the customs in Derby- Peculiarity
shire is this that any of "Her Majesty's subjects" may tomshi the
enter upon any lands of another person (except in certain le f d dis-
prohibited places) and search for, sink, and dig mines or
veins of lead ore, and have allotted by the barmaster a
certain defined spot upon the surface convenient for carry-
ing on mining operations, without even paying compensa-
tion to the owner of the surface for the use of the surface.
Two principles are involved in this right diametrically Profit &
opposed to the general law of the land, the first that of P^ dre m
allowing a profit to be taken in alieno solo under a title without
by custom (), and not merely by the residents of the !~ ation
district, as in Gloucestershire, but by any British subject ;
secondly, the exercise of that right without paying com-
pensation for damage to the surface (t).
0) Ante, pp. 328, 376, 422. (<) Ante, pp. 329, 425.
438 COAL AND IRON DISTRICTS. [CHAP. xvi.
Tithes. Tithes also are payable out of the ores in a dressed state,
and before any portion of the ores is assigned to the lord
of the manor ; whereas it is believed that in no other part
of England is the owner of a mine called upon to pay
tithes (M).
Coal and Neither coal, iron, nor any other mineral except lead is
subject to any of the customs.
Water. There is no customary right to the use of water, or to
divert water from its natural course, nor to any artificial
watercourse (v), the common law of the land prevails un-
affected by any local usage (?).
THE COAL AND IRON DISTRICTS.
Homers /Surface drainage Water-courses Way-lea ves.
Barriers. THERE are no customs of mining in any of the coal or
iron districts, and the general law of the land prevails (&).
Mr. Dunn, in writing on "Winning and Working of
Collieries," says " that there is no legal obligation upon the
owner of a mine to leave any barrier against his neighbour's
property; therefore, upon circumstances depend the ex-
pediency of leaving barriers" (?/). This is true as an
abstract principle, and so far proves the proposition above
stated, but, in practice, barriers are left as a mutual pro-
tection to adjoining owners, on account of the danger of
trespassing upon the rights of others. There are many
cases upon this subject referred to in another part of the
work (z).
Surface. i n Allaway v. Wagstaff, Mr. Baron Watson is reported
to have said: "The expression surface damage is a term
() Boston v. Hutchin, 2 Vern. (10) Post, p. 484.
46; 1 Eq. Ca. Ab. 366; Stile's case, (x~) Ante, pp. 327, 340.
Litt. Rep. 147; 1 E. & Y. 361; (/) Dunn, p. 311 (edit. 2, 1852.)
Brown v. Vermuden, 1 E. & Y. 509 ; (z) Clegg v. Dearden, 17 L.J. Q.B.
Pilkington's Derbyshire, 111 -118 ; 233 ; Smith v. Kenrick, 18 L.J. C.P.
post, " Rating of Mines," p. 515. 172; post, p. 461 et seq.
0) Arkwright v. Gell, 5 M. & W.
203, 228, 233, post, p. 504.
SECT. vii.] CUSTOMS. 139
well known in the north of England, in the colliery dis-
tricts : it is damage to the crops by using the surface, or by
the smoke coming from the colliery works, or pit heaps.
* * It is difficult to say that the injury to the founda-
tions of a house, or the subsidence of the soil partially or
wholly destroying the future fertility of the soil is a surface
damage ; it may be damage to the house and land, but not
surface damage." The learned judge has put a very narrow
construction upon the term surface damage as understood
in the colliery districts, and as we venture to suggest not at
all in accordance with the generally received opinion. We
know of no more restricted interpretation of the expres-
sion in the north than in any other of the coal districts,
and must therefore direct attention to that part of this
work where the general law on surface damage is dis-
cussed (a).
Custom, says Mr. Dunn, " forms an important element Water-
in defining the rights of the miners in the north to water-
courses. Where the ^ workings have been in intercom-
munity for time immemorial there is no remedy to be ob-
tained by the colliery lying to the dip, in respect of any
waters raised by the colliery to the rise, in the working of
that seam and upon that level, but if the rise colliery should
proceed to sink to lower seams, and pump up the water
produced by that process to pass through the ancient water-
courses, an action would lie, because artificial means had
been adverted to in throwing the water upon the dip colliery."
The custom referred to by Mr. Dunn is in conformity with
the general law of the land, and must not, therefore, be
regarded as a local custom (6).
It has been attempted to give a larger interpretation to Way-
the terms " way-leaves," " waggon-way," when used in leaves>
deeds relating to the coal districts of the north, than in
other parts of England, but no just ground exists for
any departure from the ordinary construction of those
terms (c).
() Post, pp. 455, 469, 472. (c) Durham & S. Ry. Co. v. Walker,
(6) Ante, pp. 327, 340, post, p. 484. 2 Q.B. 963, post, p. 512.
440 EASEMENTS. [CHAP. xvn.
CHAPTEE XVII.
EASEMENTS AND SERVITUDES.
1. THE NATURE AND CHARACTER OF EASEMENTS AND SER-
VITUDES, AND THE MANNER OP ACQUIRING AND LOSING
THEM.
2. THE RIGHT OF SUPPORT TO LANDS, FROM ADJOINING, AD-
JACENT, AND SUBJACENT LANDS. INJURIES ARISING FROM
A WRONGFUL WITHDRAWAL OF SUCH SUPPORT IN THE
WORKING OF MINES.
SUPPORT TO LANDS.
SUPPORT TO BUILDINGS.
SUPPORT TO RAILWAYS, PUBLIC WORKS, AND CANALS.
3. OF THE RIGHT TO STREAMS AND WATER-COURSES.
NATURAL STREAMS AND WATER-COURSES.
DIVERSION AND DEFILEMENT OF WATER.
SUBTERRANEAN AND SPRING WATER.
ARTIFICIAL WATERS AND WATER-COURSES.
4. RIGHTS OF WAY WAY-LEAVES.
SECTION I.
OF THE NATURE AND CHARACTER OF EASEMENTS AND
SERVITUDES, AND THE MANNER OF ACQUIRING AND
LOSING THEM.
The Roman Law Jiowfcr adopted by modern States the Continent generally
the Code Napoleon, America. Easements and Servitudes are incorporeal
hereditaments Definition of easement servitude. Division of Easements and
Servitudes into natural and artificial. How easements and servitudes are ac-
quired, by grant prescription or custom; hoiv lost by surrender by merger
of the dominant and servient tenements by their becoming useless by the
burden of the servitude being increased by abandonment. When abandon-
ment is relied upon, is it necessary to prove interruption of the right f How
and when Easements and Servitudes are revived. Eepairs of Easements. In-
juries to Easements. Easements and Servitudes are not to be effected by a
declaration of title under 25^26 Vic. c. 67.
Roman THE solid and luminous principles of the Roman law
must be referred to if we would rightly understand the law
SECT, i.] SERVITUDES. 441
relating to easements and servitudes in this country. From Roman
Justinian we learn that the most complete ownership which
a person could have over any one thing was where the
whole sum of all the rights over that one thing was vested
in one person (pleiiam in re potestatem) (a), so that the
entire use of the thing (usus), the enjoyment of all its
products (fructus), and the destruction or alienation of the
thing (abusus) (i) became attached thereto. This owner-
ship was termed dominium, hence the definition dominium
est jus utendi fruendi et abutendi, quatenus juris ratio
patitur (c). As opposed to dominium was an ownership
termed possessio. This possessio implied not only an actual
physical occupation, but also a right to have that possession
protected against all the world except the dominus, and
hence length of possession would sometimes make the pos-
sessor the real dominus. These combined rights over any one
thing were very numerous, but were frequently separated
so as to confer some of the rights on one person and some on
another ; for instance, the right of way over land could be
and frequently was separated from a right to the land, and
the right of digging under the surface to the surface itself,
and such rights might and did often belong to different
persons. Each right so separated was considered as a frag-
ment of the whole dominium, capable of being disposed of
by the possessor ; and these fragmentary rights were termed
servitutes. In some servitudes, the right over the thing
subject to the servitude (res serviens) was attached to the
ownership of another thing (res dominans) ; the servitudes
were then known as servitutes rerum or prcediorum, and a
distinction was made in these servitudes according as the
right given by them referred to the soil itself, as the right
to go or to drive over it, when the servitutes were said to be
rusticorum pradiorum, or to the soil as supporting some
superstructure, as a house, when the servitudes were said
to be urbanorum pradiorum. "In other servitudes, the
(a) Justinian's Institutes, book ii. (c) Justinian's Institutes, book ii.
title iv. sec. 4. title i.
(6) Abuti does not mean a bad use
of the thing, it is simply opposed to
nti.
442 EASEMENTS. [CHAP. xvn.
Roman right was given to particular persons, and the servitudes
were then termed servitutes personarum. The most im-
portant of these latter servitudes were usufructus and KSUS.
Usufructus was the right to enjoy a thing belonging to
another person so as to reap all the produce derivable from
it, as,, for instance, all the fruits of the soil ; usus was the
right to use and enjoy a thing belonging to another person,
only without reaping any of its produce or altering its sub-
stance. Only immoveable property was subject to the
servitutes pr&diorum; both moveable and immoveable to
the servitutes personarum. There were two other real
rights which had something of the nature of servitudes, but
which received a particular name. These were emphyteusis
and superficies. The former was an alienation of all rights
except that of the bare ownership for a long term, in con-
sideration of the proprietor receiving a yearly rent (pensio) ;
the latter was the alienation by the owner of the surface of
the soil of all rights necessary for building on the surface,
a yearly rent being generally reserved" (d). In addition to
the ordinary method of acquiring these rights, servitudes
might also be acquired by a bona fide possession or quiet
enjoyment of them for a certain fixed period, founded on a
good title. In Justinian's time the length of possession or
enjoyment necessary to confer the right was declared to be
three years, for moveables ; and ten years if the possessor
had resided in the province or twenty years if he resided
Roman elsewhere, for irnmoveables. The servitude might be lost
lowed by or extinguished by the doing or leaving undone anything
modern inconsistent with the right so acquired. These are the
general principles of the Roman law of servitudes, and we
now propose to show how far they apply to modern States.
Burge's Commentary on Colonial and Foreign Laws enters
very fully into this subject, and the codes of those nations
which are based upon the Roman law are extensively con-
The Conti- sidered and ably treated of by that author (e). The Con-
Europe, tinent generally have adopted this branch of Roman law
with such alterations only as were necessary to meet the re-
(rf) Justinian's Institutes, by San- (e) Vol. ii. p. 400.
dars, p. 45.
SECT, i.] SERVITUDES. 443
quirements of their respective States, but France has been Code Na
foremost of those nations to hand clown to posterity its vital poleon -
principles in a code which shows the wisdom of its compiler.
The Code Napoleon is indeed a great legal work, and will
bear comparison with any other of modern times ; the
637th to the 701st articles of the code (/) describe and
enumerate the servitudes known to the French law, among
which are the following: 1. The respective rights of the
owners of adjacent lands. 2. As respects the waters upon
one tenement passing upon or across to the other. 3. Such
as are created by law, including party walls and ditches
between two estates, party or division hedges dividing lands,
and ways answering to ways of necessity at common law.
4. Servitudes created by the act of man, which are divided
(in analogy to the civil law) into urban and rural. 5. Servi-
tudes continual and continuable, and servitudes apparent and
non-apparent. 6. The mode of creating servitudes, and
the rights of the owner of the property to which the servi-
tude is due. 7. The length of possession and enjoyment
of continuous and apparent easements in order to create a
prescriptive title, the period in such cases being thirty
years (#).
The Code of Louisiana adopts generally the Roman America.
law (A), and in the other States of America the law so far
as the same had been adopted in England has been gene-
rally although not uniformly followed in those States (i).
It has been maintained in America that it is not sufficient
to be an owner in order to establish a servitude, the owner
must be master of his own rights and have the power to
alienate; therefore minors, married women, and persons
interdicted cannot establish servitudes on their estates except
according to the form prescribed for the alienation of their
property (;).
Having then stated the leading principles of the law of
(/) Liv. ii. tit. 4. (/) Kent's Com. vol. iii. p. 601,
(5) Fournel Traite des Servitudes, edit. I860 ; Civil Code Louisiana,
338, sec. 221 ; Code Napoleon, Art. 690. Articles 642-818.
(A) Orleans Navigation Company (./) Civ. Code Louisiana, Art. I'll ;
v. New Orleans, 2 Martin (U.S.), Lalaure, Traits' des Servitudes Replies,
p. 269. p. 34.
44i EASEMENTS. [CHAP. xvn.
servitudes in the Roman law, on the Continent, and Ame-
rica, it is now proposed to show how far those principles have
been recognized in this country. According to our law ease-
Definition ments and servitudes are incorporeal hereditaments, and in
of an ease- England, lawyers not unfrequently use the terms indiscri-
minately, but strictly speaking, a servitude is a burden, whilst
an easement is a right ; for instance, the right of way which
as owner of an estate a man has over the adjoining estate
of another, constitutes a servitude upon his neighbour's
estate, but it is also an easement to his own estate. An
easement, then, is an incorporeal hereditament, and confers
on its possessor a privilege, without profit, to be exercised
in, over, or within, or to be derived from an hereditament
Definition corporeal belonging to another person (k). A servitude is
of a servi- a burden imposed upon lands or other heritable property
by which the proprietor is either restrained from the full
use of the property, or is obliged to suffer another to do
certain acts in relation to it either for the utility or accom-
modation of himself, a third person, or the owner of an ad-
joining estate, and which, were it not for the burden, it
would be competent solely for the owner to do or suffer to
be done. Hence it may be perceived that he whose tene-
ment is subject to a servitude is not, in an ordinary case,
bound to perform any act himself for the benefit of the
person or tenement to which it is due ; his whole burden
rather consists either in being restrained from doing, or in
being obliged to suffer something to be. done upon his pro-
perty by another ; in the first case the servitude has been
called negative, in the last positive (I).
Division of Easements and servitudes may be divided into natural or
ami sen-i- artificial. Natural, as where one field is higher than another,
tucies. nature itself may be said to have constituted a servitude on
the inferior tenement by which it is obliged and of right
entitled to receive the water from the superior (m). Artificial,
() Co. Litt. 9 a 121 b Plowd. 170; (m) Harris v. Ryding, 5 M. & W.
Blackstone's Com. Stephen's edit. 60 ; Humphries v." Brogden, 12 Q.B.
vol. i. p. 171 ; Eowbotham v. Wilson ; 739 ; Solomon v. Vintner's Co. 4 H &
Bonomi v. Backhouse, and other cases N. 585 ; Bonomi v. Backhouse, Ell. B.
cited post, pp. 466, 469, 505, 512. & Ell. 622, 642.
(0 Kowbotham v. Wilson, 25 L.J.
Q.B. 367.
SECT, i.] SERVITUDES. 445
as when the owner of a tenement establishes a right to sup-
port for some additional burden placed upon his land, as a
building (n), or to water flowing other than in its natural
course (o). Servitudes have again been divided into real
(predial) or personal. Both real and personal servitudes
relate to a thing, and both names are taken, not from the
subject burdened, but from that in favour of which the
burden is imposed; personal servitudes are constituted
principally in favour of a person, and real, principally in
favour of the tenement, and only by consequence to a
person as the owner of that tenement. In servitudes real,
therefore, there must be two tenements, a dominant to
which the servitude is due, and a servient which owes the
servitude, or is charged with it. Hence servitudes real can-
not pass by sale or other just title from the proprietor of the
dominant tenement to another, unless the acquirer shall
either purchase that tenement, together with the right of
servitude, or has already the property in another tenement
capable of receiving benefit by it. Thus all servitudes are
restraints upon property, they are stricti juris, and so not to
be inferred by implication. Neither does the law give them
countenance, unless they have some tendency to promote
the advantage of the dominant tenement, and they must be
used in the way least burden some to the servient tenement;
on the other hand, the owner of the servient tenement may
make every use of his property consistent with the purposes
of the servitude (p). Whenever the law gives the right,
it gives eveiything necessaiy to its exercise (q).
Where a servitude is created or an easement granted or Title by
reserved by deed, the only question ordinarily open for con- grant<
sideration is the proper construction of the language of the
(n) Case cited above ; also Bateson 1; Chasemore v. Richards, 7 H.L.
v. Green, 5 T.R. 411 ; Wyatt v. Har- Ca. 349; Elwell v. Crother, 31 L.J.
rison, 3 B. & Ad. 871 ; Dodd v. Holme, Ch. 763.
1 Ad. & Ell. 493 ; Rogers v. Taylor, (p) Erskine's Inst. Scot, by Ivory,
2 H. & N. 828. edit. 1828, vol. i. pp. 429, 447.
(o) Race v. Ward, 4 Ell. & B. 702 ; (q) Co. Litt. 55 a , 56", Hinchliffe v.
Wright v. Howard, 1 Sim. & S. 190 ; Ld. Kinnoul, 5 Bing. N.C. 24 ; Allan
Mason v. Hill, 3 B. & Ad. 304 ; 5 B. v. Gomme, 11 A. & E. 759, B.C. 3 P. &
& Ad. 1 ; Wood v. Waud, 3 Ex. D. 581 ; Henning . Burnet, 8 Exch.
748; Acton v. Blundell, 12 M. & W. 187.
347 ; Deeble v. Linehan, 12 Ir. C.L.
446 EASEMENTS. [CHAP. xvu.
deed (?). But no person who has not an entire interest in
the soil, or is under any disability, can create a servitude or
grant an easement out of land to another (s). This is
entirely consistent with the civil law, the law of America,
and of France. A parol license or contract cannot create
a servitude or confer an easement, because such a license is
not sufficient to pass any title to the land (t). But a parol
license would be a good answer to an action of trespass
brought by the person granting it, until such license had
been countermanded, but not to such an action if brought
by the reversioner (it).
Prescrip- "jhe right to a servitude or an easement may be acquired
tion and ^ . . J
custom. by prescription or custom ; m the former case on the sup-
position of a grant, in the latter by long user. There can
be no prescriptive right so large as to preclude the ordinary
uses of property (t) ; and there can be no implied grant
unless the easement was apparent and continuous, and Mr.
Baron Watson, adopting the American authorities as well
as our own on the subject, takes the trouble to explain that
by " apparent" must be understood " not only those which
must necessarily be seen, but those which might be seen or
known on a careful inspection by a person ordinarily con-
versant with the subject" (IP). The American authorities
go so far as to say that " where the enjoyment was in its
nature hidden, or although it was apparent, there were no
ready means for resisting it within the power of the servient
owner, assent was not implied, and the influence of twenty
(r) Shepp. Touchs. 88, 89 ; Orleans 233 ; Perry v. Fitzhowe, 8 Q.B. 777 ;
Navig. Co. v. New Orleans, 2 Martin Burling v. Read, 11 Q.B. 907.
(U.S.), 269; Fentiman v. Smith, 4 (v') Dyce v. Hay, I Macq. 305.
East, 107 ; Plant v. James, 5 B. & Ad. (w) Darwin v. Upton, cited 3 T.R.
791 ; Metropolitan Cemy. Co. v. Eden, 159 ; Campbell v. Wilson, 3 East, 294 ;
16 C.B. 42. Livett v. Wilson, 3 Bing. 115 ; Barker
(s) Lalaure, Traite des Servitudes v. Richardson, 4 B. & Aid. 579 ; "Wilson
Re'elles, p. 34; Portmore v. Bunn, 3 v. Wilson, 4. Dev. (U.S.), 154; Tyler v.
Dowl. & R. 145; Barker v. Richard- Wilkinson, 4 Mason (U.S.), 39 7; Flight
son, 4 B. & Aid. 582. v. Thomas, 11 Adol. & Ell. 688; Har-
(0 Fentiman v. Smith, 4 East, 107; bidge v. Warwick, 3 Ex. 552 ; Lock-
Cocker v. Cowper, 1 C. M. & R. 418; wood v. Wood, 6 Q.B. 50, 64; Pryer
Bird v. Higginson, 2 A. & E. 696 ; v. Carter, 26 L.J. Ex. 258 ; So-
Wood v. Leadbitter, 13 M. & W. 838 ; lomon v. Vintner's Co. 4 H. & K 602;
Adams v. Andrews, 15 Q.B. 284. Hall v. Lund, 32 L.J. Ex. 113 ; ante,
(u) Hewlins v. Shippam, 5 B.& C. p. 327.
SECT. 1. 1 SERVITUDES. 447
years' time not acknowledged" (#). And in order to gain a
prescriptive right to an easement by long user and enjoy-
ment, the user and enjoyment must have been with the
knowledge and acquiescence of him who was seized of an
estate of inheritance as owner of the servient estate ; what
will be evidence of such knowledge and acquiescence de-
pends upon the circumstances of each case. There can be
no acquiescence where the act was not capable of interrup-
tion (y).
We have already shown how easements and servitudes How ease-
may be acquired, we now propose to show how they may ^ t nts are
be surrendered, lost, or extinguished, and revived. They
may be surrendered by deed entered into between the By sur-
respective owners of the dominant and servient estates (z) ; re
but a mere parol release of an easement, or an agreement
not to exercise it, is no release in law (a), and a parol agree-
ment to substitute a new way for a prescriptive way, though,
followed by a discontinuance of the use of the prescriptive
way, will not amount to a release or even an abandonment
of it (6).
Servitudes and easements may be lost and extinguished On merger
by confusione that is to say, whenever the same person n an ^
becomes the absolute owner both of the dominant and servient
servient tenements so as to cause a merger of the two inte- te
rests in such one person, for no one can have any easement
or servitude in his own land (c) ; but if a person having a
limited interest only in the estate, such as a tenant for life
or for years, also becomes possessed of the easement or
servitude, the right to the easement or servitude is suspended
only, and will be again revived on the termination of such
limited interest (cT). In the case of James v. Plant, Chief
(a:) Per Wardlaw, J. in Napier v. (6) Reignolds v. Edwards, Willes ,
Bulwinkle, 5 Rich. (U.S.), 311, 324. 282 ; Lovell v. Smith, 3 C.B. N.S.
(y) Darnel v. North, 11 East, 372 ; 120 ; Payne v. Shedden, 1 Mood. & R.
Blake v. Everett, 1 Allen (U.S.), 248 ; 382; Carr v. Foster, 3 Q.B. 581;
Webb v. Bird, 10 C.B. N.S. 282 ; ante, Wood v. Leadbitter, 13 M. & W. 838.
"Prescription," p. 338. (c) Pomfret v. Ricroft, 1 Wins.
(z) Hinchliffe v. Earl Kinnoul, 5 Saunds, 323 b (note p). Bright v.
Bing. N.C. 1; James v. Plant, 4 Ad. Walker, 1 Cr. M. & R. 211 ; Onley v.
& Ell. 761 ; Worthington v. Gimson, Gardiner, 4 M. & W. 406.
29 L.J. Q.B. 116. (<0 Erskine's Inst. Scot. Ivory,
(a) Dyer v. Sanford, 9 Mete. (U.S.), edit. 1828, vol. i. p. 450 ; Kent's
395; Liggins r. Inge, 7 Bing. 682. Com. vol.iii. p. 603, edit. 1860; Par-
448 EASEMENTS. [CHAP. xvir.
Justice Tindal said : " We all agree that, where there is a
unity of seisin of the land, and of the way over the land, in
one and the same person, the right of Avay is either extin-
guished or suspended, according to the duration of the re-
spective estates in the land and the way ; and that, after
such extinguishment, or during such suspension of the
right, the way cannot pass as an appurtenant under the
ordinary legal sense of that word. We agree also in the
principle laid down by the Court of King's Bench, that, in
the case of an unity of seisin in order to pass a way exist-
ing in point of user, but extinguished or suspended in point
of law, the grantor must either employ words of express
grant, or must describe the way in question as one * used
and en joyed with the land,' which forms the subject matter
of the conveyance." The doctrine as laid down in James
v. Plant was afterwards confirmed in Worthington v.
Gimson (e).
When ease- Servitudes and easements cease when the subject of them
useless. happens to be in such a condition that the enjoyment of
them can be no longer of any practical use, but they revive
when the estate again becomes capable of receiving the
servitude, unless after such a lapse of time as to raise a
presumption that the servitude had been extinguished. The
French law is thus expressed : " Les servitudes cessent
lorsque les choses se trouvent en tel etat qu'on ne peut plus
en user, comme si le fonds dominant et le fonds servant
viennent a perir. * * Mais les servitudes revivent si les
choses sont retablies de maniere qu'on puisse en user" (/).
On a reference to. the authorities of the English (), where an application for a new trial was
granted on the ground of misdirection on the above points,
Lord Denman said : " The learned judge appears to have
(j) Wood v. the Copper Miners' Co. Servitudes, 202, 456, 478 ; 2 Fournel,
14 C.B. 446, 468; Sharpe v. Han- Trait^ des Voisinage, 426.
cock, 7 M. & G. 354. (n) Co. Litt. 114 b ; Lovell v. Smith,
() Mendell v. Delano, 7 Mete. 3 C.B. N.S. 120; Hale v. Oldroyd, 14
(U.S.) 176. M. & W. 789; Ward v. Ward, "l Ex.
(/) Perkin3 v. Dunham, 3 Strobh. 838; Moore v. Rawson, 3 B. & C.
224; Taylor v. Hampton, 4 M'Cord, 332; Reg. v. Chorley, 12 Q.B. 515;
96 ; Corning v. Gould, 16 Wend. 531 ; Stokoe v. Singers, 8 Ell. & B. 31; B.C.
Arnold v. Stevens, 24 Pick. 106 ; Butz 26 L.J. Q.B. 257.
v. Ihrie, 1 Rawle, 218 ; Harvie v. (o) Allen v. Ormond, 8 East, 4 ;
Rogers, 3 Bligh, N.S. 440. Duncan v. Louch, 6 Q.B. 904.
(TO) Pardessus, torn. ii. Traite* des 0) 12 Q.B. 515.
2 G
450 EASEMENTS. [CHAP. xvn.
proceeded on the ground that, as twenty years' user in the
absence of an express grant would have been necessary for
the acquisition of the right, so twenty years' cesser of the
use in the absence of any express release was necessary for
its loss (q). But we apprehend that, as an express release
of the easement would destroy it at any moment, so the
cesser of use, coupled with any act clearly indicative of an
intention to abandon the right, would have the same effect
without any reference to time (r). For example, this being
a right of way to the defendant's malt-house, and the mode
of user by driving carts and waggons to an entrance from
the lane into the malt-house yard, if the defendant had re-
moved his malt-house, turned the premises to some other
use, and walled up the entrance, and then for any consider-
able period of time acquiesced in the unrestrained use by
the public, we conceive that the easement would have been
clearly gone. It is not so much the duration of the cesser
as the nature of the act done by the grantee of the ease-
ment, or of the adverse act acquiesced in by him, and the
intention in him which either the one or the other indicates,
which are material for the consideration of the jury. The
period 'of time is only material as one element from which
the grantee's intention to retain or abandon his easement
may be inf erred against him ; and what period may be suf-
ficient in any particular case must depend on all the accom-
panying circumstances. This is the principle on which the
judgments of all the members of this court proceeded in
Moore r. Rawson (Y), and which was adopted in Liggins v.
Inge (f). It is true that those were cases between two in-
dividuals, and not between the public and one individual :
but that can make no difference ; because, assuming the de-
fendant's to have been the prior right, theirs was the
dominant tenement, the lane was the servient tenement:
the owner of this last, then, could not dictate absolutely to
the public so long as it remained subject to the prior right :
(5) Moore v. Rawson, 3 B. & C. (*) 3 B. & C. 332.
332. (0 7 Bing. 682. 693.
(r) Parker v. Mitchell, 11 Ad. & Ell.
788 ; Norbury v. Meade, 3 Bligh, 241.
SECT, i.] SERVITUDES. 451
he could give nothing but what he himself had, a right of
user not inconsistent with the defendant's easement. The
question, therefore, Has the owner effectually made an
absolute dedication to the public ? necessarily involves this,
Has the defendant released the right which he enjoyed ?
And, in the present case, though time would be very
material, yet the nature, both of the obstruction at one end
by posts, of the user by the public, and the amount of ac-
quiescence by the defendant, were also so material, that
the attention of the jury should have been pointedly drawn
to them."
If by the unity of title and possession of two estates, the How and
easements or servitudes belonging thereto thereby become
extinguished, will a subsequent conveyance of one of the
estates only revive the easements or servitudes as they had
existed in relation to each estate before they had been ex-
tinguished by such unity, or by what line or limit is the
rule determined in regard to such easements or servitudes
reviving upon the conveyance of one or even both of the
estates to different persons other than the person in whom
those easements or servitudes became extinguished ? The
result of the authorities would seem to be, that servitudes
and easements which exist ex jure naturce, or such as are
necessary to the enjoyment of either of the estates, would
revive the instant the ownership and possession of the two
estates had passed to different hands, unless something had
been done by the owner of either of the two estates when
they were jointly held to destroy the easement or servitude.
Such is the law as it has been laid down in America (u).
The American authorities will often assist in the solution of
any difficulty arising in similar cases in this country, and
have been adopted in some recent decisions in our courts,
and further illustrated by showing that an easement will not
pass by implication unless it be apparent and continuous ;
therefore a right of way will not pass by implication upon
(u) Dunklee v. Wilton R. R. Co. 5 Rich. 280; French r. Carhaal, 1;
4 Foster, 489, 497 ; Sury v. Pigot, Const. 104 ; Manning v. Smith, 2
Poph. 166 ; Hazard v. Robinson, 3 Com. 289.
Mason, 272; Ferguson v. Witsell,
2a2
452 EASEMENTS. [CHAP. xvn.
a severance of two estates by deed, unless the deed contains
language clearly indicating that the easement was to pass
with the estate (v).
Repairs of The owner of an easement is legally bound to repair it,
nts ' and being so bound, he has a right to enter upon and use
the Jand so far as may be necessary to effect such repairs ;
and if he neglects to make such repairs, the owner of the
soil may bring his action against the owner of the easement
for neglecting to repair it (w). An action is also maintain-
Remedies able for the recovery of damages for the violation of, or for
for injuries anv injury to the easement, although no actual damage may
ments. have been sustained, for generally the law will presume
damages. But there is a distinction in this country as well
as in America between the right to maintain an action for
the recovery of damages for the infringement of a private
and a public easement ; in the former case no damages need
have been sustained, in the latter special damages must be
proved (#). The action may in some cases be brought
against the reversioner entitled to the easement, or against
the tenant in possession, at the option of the injured
party (y) ; and a reversioner may also maintain an action if
any injury has been inflicted on the inheritance (#). The
action is, in its nature, local, but it will lie in any county
where damages may have resulted from a wrongful inter-
ference with the right (a). Courts of law (&) as well of
equity may grant an injunction to prevent injury to ease-
ments ; but if the title is in dispute, the title must be first
(r) Pomfret v. Ricroft, 1 Wms. (U.S.), 17; Greasly v. Codling, 2
Saund. 323 C (notes); Clements v. Lam- Bing. 263 ; North'am v. Hurley, 1 Ell.
bert, 1 Taunt. 205 ; James v. Plant, 4 & B. 665.
Ad. & Ell. 763, supra ; Pyer v. Carter, (y) Todd v. Flight, 30 L.J. C.P. 21 ;
26 L.J. Ex. 258 ; Glave v. Harding, s.c. 9 C.B. N.S. 377.
27 L.J. Ex. 286; Worthington v. Gim- (z) Kidgill v. Moor, 9 C.B. 364;
son, 29 L.J. Q.B. 116. Metropolitan Association v. Fetch, 5
(w) Pomfret v. Ricroft, 1 Wms. C.B. N.S. 504 ; Baxter v. Taylor, 4 B.
Saund. 322 a ; Bullard v. Harrison, 4 & Ad. 72 ; Tucker v. Newman, 11 A.
M. & S. 387 ; Bell v. Twentyman, 1 & E. 40 ; Dobson v. Blackmore, 9
Q.B. 766 ; Peter v. Daniel, 5 C.B. 568 ; Q.B. 991.
Egremont v. Pnlman, Mood. & M. 404 , (a) Mersey Navig. Co. v. Douglas,
Taylor v. Whitehead, 2 Doug. 749 ; 2 East, 502 ; Barden v. Crocker, 10
Sampson v. Easterby, 9 B. & C. 505. Pick. (U.S.), 383.
(x) Atkins v. Bordmann, 2 Mete. (6) 17 & 18 Vic. c. 125, s. 79 et
(U.S.), 457 ; Nash v. Peden, 1 Speers seq.
SECT, i.] SERVITUDES. 453
established at law, unless the injury complained of is likely
to cause great and permanent mischief (c).
If an easement has been injured, the party whose right Abatement
has been invaded need not seek redress either at law or in sances'to
equity, but he may take the law into his own hands and easements.
abate the nuisance himself (d), provided he does no unneces-
sary damage, commits a breach of the peace, or endangers
human life (e). Care, too, must be taken that, whilst in
the act of removing anything which may have caused the
injury, no excess of right be exercised. But it has been held
that although life may be endangered, you may neverthe-
less, after notice, proceed to remove any impediment to the
exercise of the right. This was clearly laid down in a
case (/) where a commoner's right was interfered with by
the erection of a building. Wightman, J., said : " The
general right of a commoner to abate any building or
erection upon the place over which he has the right of
common was not questioned, either in this case or in that of
Perry v. Fitzhowe ; but in that case it was held, and for the
first time, that, where a declaration in trespass alleged that
the defendants pulled down a dwelling-house in which the
plaintiff and his family actually were present and inhabit-
ing, a plea justifying as a commoner entitled to abate a
building wrongfully erected upon the common, and which
did not allege any previous notice or request to move, could
not be sustained. There is obviously a wide distinction be-
tween the case of parties suddenly coming to the dwelling-
house alleged to be a nuisance, and in which the occupier
and his family are actually dwelling and in the house, and
without notice or demand forcibly pulling it down, and a
case in which the occupier of the house has had previous
notice and been requested to remove the building, but has
(c) Post, " Injunctions." (e) Hartshorn . South Reading, 3
(d) Batten's case, 9 Rep. 55 ; 2 Roll. Allen (U.S.), 501; King v. M'Cully,
Abr. Nuisance, p. 144 ; 3 Black. Com. 38 Penn, St. Rep. 76; Coe v. Lake Co.
p. 5, and Stephen's edit. vol. iii. pp. (U.S.), 37 N.H. 254 ; ante, p. 453.
338, 494; Lodie v. Arnold, 2 Salk, (/) Davies v. Williams, 16 Q.B.
458 ; Cooper v. Marshall, 1 Burr, 261 ; 555 ; see also Jones v. Williams, 11
ante, p. 267. M. & W. 176 ; ante, p. 188.
454 EASEMENTS AND SERVITUDES. [CHAP. xvu.
persisted in remaining in the house with his family in
defiance of the notice and request. In the case of Perry v.
Fitzhowe (g), Lord Denman, C.J., asks the counsel for the
defendant whether he can maintain pleas which justify
pulling down a house in which the plaintiff and his family
are actually living, without alleging a previous notice to
them to go out. It was unnecessary in that case to give any
opinion as to the effect of such an allegation, as the plea
did not contain it ; but in the present case there is an
express allegation both of notice and request, which we
think distinguishes this case from that of Perry v. Fitzhowe,
which was decided wholly upon a question as to the validity
of pleas which omitted these most important allegations.
As, then, this case is distinguishable from Perry v. Fitz-
howe, there is nothing to take this case out of the general
rule, that a commoner may pull down a building wrongfully
erected upon the common, and which prevents his exercising
his right as fully as he might otherwise, provided he does
no unnecessary damage."
A declaration of title under the 25 & 26 Vic. c. 67 is not
to affect any claim or right to easements or servitudes (/*).
O) 8 Q.B. 757 64. (K) Sec. 29.
SECT, ii.] SUPPORT TO LANDS. 455
SECTION II.
THE RIGHT OF SUPPOET TO LANDS FROM ADJOINING SUBJACENT
AND ADJACENT LANDS. INJURIES ARISING FROM A WRONGFUL
WITHDRAWAL OF SUCH SUPPORT IN THE WORKING OF MINES.
SUPPORT TO LANDS.
SUPPORT TO BUILDINGS.
SUPPORT TO RAILWAYS, PUBLIC WORKS, AND CANALS.
SUPPORT TO LANDS.
The Roman Law Code Napoleon, how far recognized. When there are two
rlyhts which is subservient to the other f to what extent minerals may be
worked under a reservation of them by deed prescriptive right lateral and
subjacent support when minerals and the surface are distinct Inheritances
right of support on severance of two estates; adjacent and subjacent support
Result of authorities as to adjoining, adjacent, and subjacent support.
QUALIFIED SUPPORT. The right of support which prima facie belongs
to the owners of adjoining, subjacent, or adjacent lands may be qualifiedby cir-
cumstances damages for subsidence.
BELONGING to the class of easements before mentioned, Roman
is the right of support which one owner of land or strata of aw<
minerals is entitled to receive from land or strata of mine-
rals belonging to another owner. To what extent this
right can be claimed, and the consequences of withdrawing
such support, it is now proposed to consider. The law, as laid
down in the Digest, required " that if a man dig a ditch he
should leave a space between his own land and that of his
neighbours, a space equal to its depth ; if he dug a well, he
was to leave the space of a fathom" (a). The Code Napo- Code Na-
leon prohibited any injury being inflicted on the inferior P leon -
by the superior tenant. "Le proprietaire superieur ne
peut rien faire qui aggrave la servitude de fonds infe-
rieur" (6). American lawyers have written fully on the
support which may be claimed for land, and the Code of
Louisiana (c) treats on the subject, and Pardessus (d) ex-
Co) L. 13, ff. fin. reg. cited in Barnes (c) La Civ. Co. arts. 674, 688-691 ;
v. Ward, 9 C.B. 412. Kent's Commentaries, part 6, s. 3.
(b~) Code Civil, Hv. ii. tit. iv. ch. i. '(d) Traitd de Servitudes, torn. i. ss.
art. 640. 199-201.
456 EASEMENTS AND SERVITUDES. [CHAP. xvu.
plains the principles applicable to the making of excava-
tions and injuries caused by erections made by owners of
Rolle's adjoining lands. In 2 Rolle's Abridgement, 564, under
the title of Trespass, it is said: "If A. seized in fee of
copyhold land next adjoining the land of B., and A. erect
a new house in his copyhold land, and some part of the
house is erected in the confines of his land next adjoining
the land of B., if B. afterwards digs his land so near the
foundation of A.'s house (but no part of the land of A.)
that thereby the foundations of the house and the house
itself, fall into the pit, yet no action lies against B., because
it was A.'s own fault that he built his house so near B.'s
land ; for he cannot by his act hinder B. from making the
best use of his own land that he can .... but senible that
a man who has land next adjoining my laud cannot dig his
land so near mine that thereby my land shall go into his
pit ; and, therefore, if the action had been brought for
that, it would lie." Sic utere tuo ut non alienum Isedas (e).
The same doctrine was recognized by Chief Baron Co-
myns (/) ; by Lord Tenterden, in Wyatt v. Harrison (g) ;
by Lord Campbell, in Humphries v. Brogden (/t) ; and by
other eminent judges in subsequent cases, as will appear
from the authorities. The application of the doctrine to
particular circumstances is the difficulty which the lawyer
has to contend with.
Bateson v. In Batesoii v. Green (i), where a dispute arose between
the lord of the manor and the commoners as to the right of
the lord to interfere with the substrata, Buller, J., said :
" Where there are two distinct rights, claimed by different
parties, which encroach on each other in the enjoyment of
them, the question is which of the two rights is subservient
to the other ?' In that case it was held that the interest of
the commoners was subservient to that of the lord, and
therefore the lord might dig clay-pits on the common, or
(e) Hunt v. Peake, 29 L.J. Ch. (#) 3 B. & Ad. 871, 876.
787. (A) 12 Q.B. 739.
(/) Comyns, Dig. Action upon the (i) 5 T.R. 411.
Case for a Nuisance, A.
SECT, ii.] SUPPORT TO LANDS. 457
empower others to do so, without leaving sufficient herbage
for the commoners.
In Peyton v. the Mayor, &c., of London (/), the ease- Peyton .
ment there claimed was a right of support of one building
from another building, which could arise only from a grant
actual or implied ; and in that case Lord Tenterden said :
" The declaration in this case does not allege, as a fact,
that the plaintiffs were entitled to have their house sup-
ported by the defendants' house, nor does it, in our opinion,
contain any allegation from which a title to such support
can be inferred as a matter of law." This case shows the
necessity of introducing into the pleadings of an action an
averment that the plaintiff was entitled to the easement as
a right, but it does not go any further.
Wyatt v. Harrison decided that the owner of a house Wyatt v.
recently erected on the extremity of his land could not Hai n.
maintain an action against the owner of the adjoining land
for digging in his own land so near to the plaintiff's house
that the house fell down : but the reason given was that
the plaintiff could not, by putting an additional weight
upon his land, and so increasing the lateral pressure upon
the defendant's land, render unlawful any operation in the
defendant's land which before would have caused no
damage; and the court intimated an opinion that the
action would have been maintainable, not only if the
defendant's digging would have made the plaintiff's land
crumble down unloaded by any building, but even if the
house had stood twenty years (&). Where a house had
been supported more than twenty years by land belonging
to another proprietor, with his knowledge, and he digs near
the foundation of the house, whereby it falls, he is liable to
an action at the suit of the owner of the house (I).
In Dodd v. Holme the right of owners of property to Dodd v.
have their lands or houses supported by the adjoining Holme -
premises was again discussed; but that case turned upon
an allegation in the declaration that the defendants dug
(/) 9 B. & C. 725. Pri. 457 (llth ed.) ; Hide v. Thorn-
(/fc) 3 B. & Ad. 871. borough, 2 Carr. & Kir. 250.
(/) Stansell v. Jollard, 1 Selw. Ni.
458
EASEMEXTS AND SERVITUDES.
[CHAP. xvn.
Partridge
v. Scott.
Chadwick
v. Trower.
" carelessly, negligently, unskilfully, and improperly,"
whereby "the foundations and walls" of the plaintiff's
house "gave way." The .plaintiff's house was proved to
have been in a very bad condition ; but Lord Denman, in
his judgment, intimated that the defendant had no right
on that account to accelerate its fall, and that the plaintiff
was entitled to recover damages in proportion to the loss
actually sustained consequent upon the defendant's negli-
gence, and independently of the question whether twenty
years' occupation was essential to entitle the plaintiff to
support from the house adjoining ; although Littledale, J.,
in the same case, pronounced an opinion in favour of a
house which had stood twenty years being regarded as an
"ancient" house, consequently entitled to support (;>i).
The Court of Exchequer, in Partridge v. Scott, con-
curred in the law before laid down in the Court of Queen's
Bench, that a right to the support of the foundation of a
house from adjoining land belonging to another proprietor
can only be acquired by grant, and that where the house
was built oil excavated land, a grant is not to be presumed
till the house has stood twenty years after notice of the ex-
cavation to the person supposed to have made the grant ;
but nothing fell from any of the judges questioning the
right to support which land, while it remains in its natural
state, has been said to be entitled to from the adjoining
land of another proprietor. Some land of the plaintiff's
not covered with buildings had likewise sunk, in con-
sequence of the defendant's operations in his own land :
but the court, in directing a verdict to be entered for the
defendant on the whole declaration, seems to have thought
that the sinking of the plaintiff's land was consequential
upon the fall of the houses, or would not have taken place
if his own land had not been excavated (n).
The judges ha the Exchequer Chamber held, upon a
writ of error from the Court of Common Pleas, in Chad-
Cm) 1 A. & E. 493 ; see also Jeffries
v. Williams, 5 Ex. 792, s.c. 20 L.J.
Ex. 14.
() 3 M. & "W.
Peake, John. 705.
220; Hunt v.
SECT, ii.] SUPPORT TO LANDS. 459
wick v. Trower (o), that the mere circumstance of juxta-
position does not render it necessary for a person who pulls
down his wall to give notice of his intention to the owner
of an adjoining wall which rests upon it, and that he is not
even liable for carelessly pulling down his wall, if he had
not notice of the existence of the adjoining wall j but this
decision proceeds upon the want of any allegation or proof
of a right of the plaintiff to have his wall supported by the
defendant's, and does not touch the rights or obligations
of adjoining proprietors, where the tenement to be sup-
ported remains in its natural condition.
Next comes the valuable case of Harris v. Ryding, which Harris v.
is a direct authority in favour of the right of the owner of
the surface to support from the substrata, notwithstanding
some uncertainty as to the effect of the averment, in the
declaration, of working " carelessly, negligently r , and impro-
perly." The facts of the case appear to be these : A. being
seized in fee of certain lands, conveyed away the surface to
B., reserving to himself the minerals, with power to enter
upon the surf ace to work them ; and it was held, that,
under this reservation, A. was not entitled to take all the
minerals, but only so much of them as could be taken
away, leaving a reasonable support to the surface (p). The
judgment in the case was given upon a demurrer to certain
pleas justifying under the reservation, and all the judges,
in the very comprehensive and masterly judgment which
they delivered, seriatim, seem to have thought that the
reservation of the minerals would not have justified the
defendant in depriving the surface of a complete support,
however carefully he might have proceeded in removing
them. Lord Abinger says: "The plea is no answer,
because it does not set forth any sufficient ground to
justify the defendants in working the mines in such a
manner as not to leave sufficient support for the land
above, which is alleged by the declaration to be a careless,
negligent, and improper mode of working them." Parke,
B., observes : It never could have been in the contempla-
(o) 6 New Ca. 1 ; See Trower v. (p) 5 M. & W. p. 60 ; s.c. 8 L.J.
Chadwick, 3 New Ca. 334. N.S. Ex. 181.
460 EASEMENTS AND SERVITUDES. [CHAP. xvn.
Reservation tion of the parties " that, by virtue of this reservation of the
bv S rdS m i nes > the gran 101 " should be entitled to take the whole of
the coal and let down the surface, or hinder the enjoyment
of it ; it is very like the case of a grant of an upper room
in a house, with the reservation by the grantor of a lower
room, he undertaking not to do anything which would dero-
gate from the right to occupy the upper room." And
again : " This plea is clearly bad, because the defendants
do not assign that in taking away the coal they did leave a
sufficient support for the surface in its then state." The
question is, says Alderson, B., " Whether the grantor is
not to get the minerals which belong to him, and which he
has reserved to himself the right of getting, in that reason-
able and ordinary mode in which he would be authorized to
get them, provided he leaves a proper support for the land
which the other party is to enjoy." Maule, J., says : The
right of the defendants " to get the mines is the right of
Eight to , fe . . & >. , .
work the mine-owners, as against the owner 01 the land which is
minerals above it. That right appears to me to be verv analogous
under a r&- - . i . ,
servation. to that oi a person having a room in a house over another
man's room, or an acre of land adjoining another man's
acre of land." Parke, B., that he might not be misunder-
stood as to the right of the owner of the surface, after-
wards adds : " I do not mean to say that all the coal does
not belong to the defendants, but that they cannot get it
without leaving sufficient support." It seems, therefore,
to have been the unanimous opinion of the court that there
existed the natural easement of support for the upper soil
from the soil beneath, and that the entire removal of the
inferior strata, however skilfully done, would be actionable,
if productive of damage by withdrawing that degree of
support to which the owner of the surface was entitled, the
duty of the owner of the servient tenement forbidding him
to do any act whereby the enjoyment of the easement could
be disturbed (q).
Acton v. In the case of Acton v. Blundell it was held, that a
Biundeii. landowner, who, by mining operations in his own lands,
directs a subterraneous current of water, is not liable to an
(g) Harris v. Ryding, 5 M. & W. 60.
SECT, n.] SUPPORT TO LANDS. 461
action at the suit of the owner of the adjoining land, whose
well is thereby laid dry; but the right to running water
and the right to have land supported are so totally distinct,
and depend upon such different principles, that there can
be no occasion to show at greater length how the decision
is inapplicable (r).
We have now to mention the case of Hilton v. Lord Hilton v.
Granville. The court there held, that a prescription or a "
custom within a manor for the lord, who is seized in fee of
the mines and collieries therein, to work them under any
dwelling-houses, buildings, and lands, parcel of the manor,
doing no unnecessary damage, and paying to the tenants
and occupiers of the surface of the lands damaged thereby
a reasonable compensation for the use of the surface of the
lands, but without making compensation for any damage
occasioned to any dwelling-houses or other buildings within
or parcel of the manor by or for the purpose of working
the said mines and collieries, is void as being unreasonable.
Lord Denman, C. J., said : " A claim destructive of the
subject-matter of the grant cannot be set up by any usage.
Even if the grant could be produced in specie, reserving
a right in the lord to deprive his grantee of the enjoyment
of the thing granted, such a clause must be rejected as
repugnant and absurd. That the prescription or custom
here pleaded has this destructive effect, and is so repug-
nant and void, appears to us too clear from the simple
statement to admit of illustration by argument " (s). This
case has since been commented upon by Lord Campbell, in
the case of Rowbotham v. Wilson (*), and by Chief Justice
Cockburn, in Blackett v. Bradley (M).
In the more recent case of Smith v. Kenrick, the Court Smith v.
of Common Pleas, after great deliberation, held, that it is
the right of each of the owners of adjoining mines, where
neither mine is subject to any servitude to the other, to
work his own mine, in the manner which he deems most
convenient and beneficial to himself, although the natural
(r) 12 M. & W. 324. Q.B. 61 ; 8 H. of Lords' Cases,
(*) 5 Q.B. 701. 348.
(0 25 L.J. Q.B. 367 ; 27 L.J. (M) 31 L.J. Q.B. 67.
462
EASEMENTS AND SERVITUDES.
[CHAP.
Lateral
support.
consequence may be that some prejudice will accrue to the
owner of the adjoining mine ; so that such prejudice does
not arise from the negligent or malicious conduct of his
neighbour ; but, in the elaborate judgment of the court,
delivered by Mr. Justice Cresswell, there is nothing laid
down to countenance the doctrine that the owner of the
minerals may, if not chargeable with malice or negligence,
remove the minerals so as to destroy or damage the surface
over them which belongs to another (v).
Humphries The leading case of Humphries v. Brogden next claims
v. Brogden. not i C6t There, Lord Campbell ( w ), after reviewing
most of the authorities we have referred to (#), in con-
junction with the Koman law, the Code Napoleon, and the
treatises by American lawyers, in the course of a remark-
ably luminous judgment, says that the "right to lateral
support from adjoining soil is not, like the support of one
building upon another, supposed to be gained by grant, but
is a right of property passing with the soil. If the owner
of two adjoining closes conveys away one of them, the
alienee, without any grant for that purpose, is entitled to
the lateral support of the other close the very instant when
the conveyance is executed, as much as after the expiration
of twenty years, or any longer period. Pari ratione, where
there are separate freeholds from the surface of the land,
and the minerals belonging to different owners, we are of
opinion that the owner of the surface, while unincumbered
by buildings and in its natural state, is entitled to have it
supported by the subjacent mineral strata. Those strata
may of course be removed by the owner of them, so that a
sufficient support for the surface is left ; but if the surface
subsides and is injured by the removal of these strata,
although, on the supposition that the surface and the mine-
rals belong to the same owner, the operation may not have
been conducted negligently nor contrary to the custom of
the country, the owner of the surface may maintain an ac-
tion against the owner of the minerals for the damage sus-
(v) 7 Com. B. 515, 564. Ex. 792 ; Hilton v. Whitehead, 12
() 12 Q.B. 744; s.c. 20 L.J. N.S. Q.B. 734; Earl of Glasgow v. The
Q.B. 10. Hurlet Co. 3 Ho. L. Cases, 25.
(x) See also Jeffries v. Williams, 5
Subjacent
support.
SECT, ii.] SUPPORT TO LANDS. 463
tained by the subsidence. Unless the surface close be
entitled to this support from the close underneath, corre-
sponding to the lateral support to which it is entitled from
the adjoining surface close, it cannot be securely enjoyed
as property ; and under certain circumstances, as where the
mineral strata approach the surface and are of great thick-
ness, it might be entirely destroyed. We likewise think
that the rule, giving the right of support to the surface
upon the minerals, in the absence of any express grant, re-
servation, or covenant, must be laid down generally with-
out reference to the nature of the strata or the difficulty
of propping up the surface, or the comparative value of the
surface and the minerals. We are not aware of any prin-
ciple upon which qualifications could be added to the rule ;
and the attempt to introduce them would lead to uncer-
tainty and litigation : greater inconvenience cannot arise
from this rule, in any case, than that which may be expe-
rienced where the surface belongs to one owner, and the
minerals to another, who cannot take any portion of them
without the consent of the owner of the surface. In such
cases, a hope of reciprocal advantage will bring about a
compromise, advantageous to the parties and to the public.
Something has been said of a right to a reasonable support
for the surface ; but we cannot measure out degrees to
which the right may extend ; and the only reasonable sup-
port is, that which will protect the surface from subsidence
and keep it securely at its ancient and natural level. The
defendant's counsel have argued that the analogy as to the
support to which one superficial close is entitled from the
adjoining superficial close, cannot apply where the surface When the
and the minerals are separate tenements belonging to dif-
ferent owners, because there must have been unity of title are distinct
of the surface and the minerals, and the rights of the par- tances/
ties must depend upon the contents of the deeds by which
they were severed. But, in contemplation of law, all pro-
perty in land having been in the crown, it is easy to con-
ceive that, at the same time, the original grant of the sur-
face was made to one, and the minerals under it to another,
without any express grant or reservation of any easement.
464 EASEMENTS AND SERVITUDES. [CHAP. xvn.
When there Suppose, what has generally been the fact, that there has
thies'to' 116 * been * n a subject unity of title from the surface to the
minerals centre ; if the surface and the minerals are vested in dif-
surface. ferent owners, without any deeds appearing to regulate
their respective rights, we see no difficulty in presuming
that the severance took place in a manner which would con-
fer upon the owner of the surface a right to the support of
the minerals. If the owner of the entirety is supposed to
have alienated the surface, reserving the minerals, he can-
not be presumed to have reserved to himself, in derogation
of his grant, the power of removing all the minerals without
leaving a support for the surface ; and if he is supposed to
have alienated the minerals, reserving the surface, he can-
not be presumed to have parted with the right to that sup-
port for the surface by the minerals which it had ever be-
fore enjoyed. Perhaps it may be said that, if the grantor
of the minerals, reserving the surface, seeks to limit the
right of the grantee to remove them, he is acting in dero-
gation of his grant, and is seeking to hinder the grantee
from doing what he likes with his own ; but, generally
speaking, mines may be profitably worked, leaving a sup-
port to the surface by pillars or ribs of the minerals, al-
though not so profitably as if the whole of the minerals be
removed ; and a man must so use his own as not to injure
his neighbour. The books of reports abound with decisions
restraining a man's acts upon and with his own property,
where the necessary or probable consequence of such acts
is to do damage to others. The case of common occurrence
nearest to the present is, where the upper stoiy of a house
belongs to one man, and the lower to another. The owner
of the upper story 7 , without any express grant or enjoyment
for any given time, has a right to the support of the lower
story. If this arises (as has been said) from an implied
grant or covenant, w T hy is not a similar grant or covenant
to be implied in favour of the owner of the surface of land
against the owner of the minerals ? If the owner of an
entire house, conveying away the lower story only, is, with-
out any express reservation, entitled to the support of the
lower story for the benefit of the upper story, why should
SECT, ii.] SUPPORT TO LANDS. 465
not an owner of land, who conveys away the minerals only,
be entitled to the support of the minerals for the benefit of
the surface 1 "
Here it must be observed, that there were several cases
relating to canals and railways decided previously to Hum-
phries v. Brogden, which were not referred to by Lord
Campbell in his judgment in the latter case. The omis-
sion is to be regretted, 1st, because the railway and canal
cases (y) had established a somewhat different principle, and,
2ndly, because the omission has led to a distinction being
preserved, as to the extent of adjoining, adjacent, and sub-
jacent support to lands, purchased for public works, and
those purchased by private individuals, with a reservation of
the minerals. Nevertheless the principle, that the owner
of the surface of private lands is entitled to the support of
the subjacent strata, as was laid down by Lord Campbell
in Humphries v. Brogden, was afterwards adopted in Smart Smart v.
v. Morton, notwithstanding that in the latter case there was Morton -
a power given by deed to work coal beneath the surface on
payment of treble of the damages, loss, or prejudice which
the surface-owner might sustain by such working (z). The
same principle was carried even further in Roberts v. Roberts v.
Haines (a) ; in that case an Enclosure Act provided that the
lord of the manor should have power to enter upon the
waste lands allotted by the Act, and dig for and get mine-
rals, and erect works for the purpose, making satisfaction
to the persons Avhose allotments should be thereby damaged
or injured ; another clause provided, that the lord should
upon no account open, dig, or carry on any work on the
surface within forty yards of any dwelling-house, or get
any coal under any dwelling-house within the perpendicu-
lar distance of forty yards ; and power was given to per-
sons entitled to dwelling-houses to inspect the mines, in
order to see whether works were carried on within the pro-
hibited distance ; and it was held, that the effect of these
clauses, Avas to give the lord a right of entering upon the
Cy) Ante, p. 196, post, p. 476. (a) 25 L.J Q.B. 353, s.c. 27 L.J.
(z) 5 Eil. & B. 30, s.c. 24 L.J. Ex. 49 ; 6 Ell. & B. 643 ; 7 Ell. & B.
Q.B. 260. 625.
2H
EASEMENTS AND SERVITUDES. [CRAP. xvn.
surface of the allotments, making compensation for surface
damage, subject to an absolute prohibition against working
at all within forty yards of a dwelling-house ; but that it left
the common law rights of the allottees untouched in other
respects ; and therefore that the lord was liable to an ac-
tion for working the mines so as to cause the surface to
subside, although the works were carried on in a proper
and usual manner, and not within the prohibited distance.
Row- The right of support ex jure natures which the owner of
Wilson. the soil is entitled to receive from the minerals underneath,
was again maintained in Rowbotham v. Wilson (b) ; and in
Dugdale v. Dugdale v. Robertson it was held, that if the owner of
>on ' lands grant a lease of the minerals beneath the land, with
power to work and get them in the most general terms,
Reserva- still the lessee must leave a reasonable support for the sur-
clauses. ^ ace ( c )> an< ^ so conversely where the minerals are demised,
and the surface is retained by the lessor, there arises a
prima facie inference at common law upon every such de-
mise, that the lessor is demising them in such a manner as
is consistent with the retention by himself of his own right of
support, and when delivering judgment in the last-mentioned
case Vice-Chancellor Wood expressed his full and unquali-
fied assent to the principle laid down in Harris v. Ryding,
Smart v. Morton, and other cases before referred to, of the
same description.
Rogers v. In Rogers v. Taylor (d) it seems to have been admitted
Taylor. ^ ia ^ ^ ie same rule of construction which was adopted in
Hams v. Ryding applies in the case of a grant of land by
the crown, excepting the minerals; but the court further
decided that if the surface falls in from the working of the
minerals, by reason of a messuage having been built
thereon, if the messuage had been built upwards of twenty
years, the mine-owner is answerable for the damage.
Caledonian j n tne case o f ^he Caledonian Railway Company v.
Spr'ot. Sprot the same doctrine was again maintained, and a
further illustration of the right to adjacent and subjacent
(6) 8 H.L. Ca. 348. (d) 2 H & N. 828.
(c) 3 K. & J. 695 ; see also Pen-
nington v. Galland, 9 Ex. 1.
SECT, n.] SUPPORT TO LANDS. 467
support on a reservation of minerals, was given. If, as it Ri g nt f
1 . , . ., , , support on
was held, the owner or a house were to convey the severance
upper story to a purchaser, reserving all below the upper of *T ro
story, such purchaser would, on general principles, have a
right to prevent the owner of the lower story from inter-
fering with the walls and beams upon which the upper
story rests, so as to prevent them from affording proper
support. The same principle applies to the case of adja-
cent support, so far, at all events, as to prevent a person Adjacent
who has granted part of his land from so dealing with that 8uppor
which he retains, as to cause that which he has granted to
sink or fall. How far such adjacent support must extend
is a question which in each particular case will depend on
its own special circumstances. If the line dividing that
which is granted from that which is retained, traverses a
quarry of hard stone or marble, it may be that no adjacent
support at all is necessary. If, on the other hand, it
traverses a bed of sand, or a marsh, or a loose gravelly
soil, it may be that a considerable breadth of support is
necessary to prevent the land granted from falling away
upon the soil of what is retained. Again, if the surface of
the land granted is merely a common meadow or a
ploughed field, the necessity for support will probably
be much less than if it were covered with buildings or
trees. And it must further be observed, that all which a
grantor can reasonably be considered to grant or warrant
is such a measure of support, subjacent or adjacent, as is Su t>j' a cent
necessary for the land in its condition at the time of thejacent
grant, or in the state for the purpose of putting it into 8U PP rt -
which the grant is made (e). Thus, if I grant a meadow
to another, retaining both the minerals under it, and also
the adjoining lands, I am bound so to work my mines and
to dig my adjoining land as not to cause the meadow to
sink or fall away. But if I do this, and the grantee
thinks fit to build a house on the edge of the land he has
.acquired, he cannot complain of my workings or diggings,
if by reason of the additional weight he has put on the
land they cause his house to fall. If, indeed, the grant is
(e) Harris v. Ryding, ante, p. 459.
2 ii 2
468
EASEMENTS AND SERVITUDES.
[CHAP. xvir.
Allaway v.
Wagstaff.
made expressly to enable the grantee to build his house on
the land granted, then there is an implied warranty of
support, subjacent and adjacent, as if the house already
existed (/).
Bonomi v. In the subsequent case of Bonomi and Uxor v. Back-
Backhouse. nou - se the above decisions were adopted, and it was again
held, that the right of the owner of the surface to the sup-
port of the underground strata under and near to his land
was one of the ordinary natural rights of property inci-
dental to all land, and not an easement or right acquired
^J grant or otherwise (g). In Allaway v. Wagstaff, where
it appeared that Her Majesty the Queen was seized in
fee of the Forest of Dean, in Gloucestershire, including
the mines and minerals, subject to the rights and pri-
vileges of certain Y^ersons to work the mines and quarries,
it was held by the court, on the authority of Humphries v.
Brogden, that the persons entitled to work the mines were
bound to leave a sufficient support for the surface (li). The
same doctrine was again maintained in the case of Hunt v.
Peake (i), wherein Vice-Chancellor Wood said : " That any
person working the earth, either by direct excavation of the
surface or by underground workings, although in his own
soil, must so work it as not to occasion the subsidence of
the original soil of his neighbour ; that is to say, every man
who is the owner of the land is entitled to have his land
supported as it stands in the state of nature." And the
Browne v. recent cases of Browne v. Robins (j), not only maintains
the same doctrine, but goes even further, and decides that
when mines are worked under land adjacent, but not
adjoining, so as to cause the soil intervening to give way,
and thus indirectly to cause also the surrounding soil and
houses built thereon to give way, damages may not only be
recovered for the falling in of the surrounding soil, but
for houses also which had been erected thereon more than
twenty years ; and Watson, B., in the case, admitted that
the right to adjacent support may in certain cases raise
Hunt v.
Peake.
Robins.
(/) 2 Macq. 449 ; see also Caledo-
nian Rail. Co. v. Belhaven, 3 Macq. 56.
(.7) 27 L.J. Q.B. 378; 28 L.J.
Q.B. 378.
(A) 4 Hurls. & N. 307, 681.
() 29 L.J. Ch. 786.
(/) 28 L.J. Ex. 250.
SECT, ii.] QUALIFIED RIGHT OF SUPPORT. 469
nice questions, which did not, however, arise in that case.
In Hamer v. Knowles the same doctrine as to the right of Hamer ?.
K 1
lateral support from the intervening soil was upheld ; and
Pollock, C.B., said the right of support was not interfered
with by buildings being erected upon the farm, if their being
upon the land did not contribute to the subsidence (&).
The recent judgment in the case of Elliot v. the North-
Eastern Railway Company, to be presently mentioned (I), as WadT
has not interfered with the authorities already referred to ; J imn ad "
1-1 J acent and
and upon a consideration or all the cases, it is submitted subjacent
that the right of the owner of the surface to support for 8U PP rt -
his lands from the adjoining and subjacent soil and mi-
nerals, and in some cases from the adjacent soil also, is
clearly established ; so that whenever the freehold of the
soil is distinct, or not blended with the freehold of the
minerals, or the title to two or more veins or seams of coal
under the same lands are vested in different persons,
whether the veins are situated perpendicularly the one over
the other, or intersect each other, the respective owners
must so conduct their mining operations as not to interfere
with the rights of his neighbour. Each owner must, in
fact, so explore the ground as not to deprive his neighbour
of that support which by the law of England, in analogy
to the Roman law, he is undoubtedly entitled to receive,
" Sic utere tuo ut non alienum lagdas."
But the title of the owner of the surface or the under- Right of
surface may be so acquired as to qualify the prima facie mavbe
right to support from the adjoining or subjacent strata, qualified,
which we have been discussing in the preceding pages.
This doctrine was clearly laid down by Lord Campbell in
Rowbotham v. Wilson (m). In that case there was an en- Row-
closure of lands, under an Act of Parliament, when it was
agreed, by deed, by and between certain owners of allot-
ments, that the minerals under their respective allotments
should be allotted to others, with power for them to get
(A) 30 LJ. Ex. 102. (m) 8 H.L. Ca. 348.
(/) Post, p. 478.
470 EASEMENTS AND SERVITUDES. [CHAP. xvn.
Row- the minerals without regard to the surface, and without
Wilson. ' compensation, and Lord Campbell held, and is reported to
have said : " We adhere to the doctrine laid down by this
court in Humphries v. Brogden (), that where the sur-
face of land and the minerals under it are held as separate
tenements by different owners, of common right the owner
of the surface is entitled to support from the subjacent
strata, without reference to the nature of the strata or the
difficulty of propping up the surface. But we there ex-
pressly guarded ourselves against the supposition that we
intended l to lay down any rule applicable to a case where
the prima facie rights and liabilities of the owner of the
surface of the land and of the subjacent strata are varied
by the production of title-deeds or by other evidence.' In
the present case we are of opinion that there is evidence to
show that upon the severance of the surface and the mine-
rals, the owner of the surface took it as a separate tene-
ment, without that continuing and unqualified right to
support from the subjacent strata, to which the owner of
the surface would be prima facie entitled. He had an ease-
ment for the support of the surface, but it was of a quali-
fied character. There was a servitude imposed upon the
owner of the minerals, but this servitude was likewise of a
qualified character. Both easement and servitude were sub-
ject to the right of the owner of the minerals to work and
get them in a careful manner, although the surface might
thereby be injured. The owner of the surface had it con-
veyed to him with this qualified easement only, and with
this qualified easement he was contented to accept it.
Notwithstanding some expressions of Lord Denman in
Hilton v. Lord Grranville (o), we are of opinion that upon
the severance of the surface of the minerals into separate
tenements to be held by different owners, such an arrange-
ment might effectually be made as to the right of support
to the surface from the minerals. There is here nothing
in derogation of the grant of the surface. The grantee of
the surface may still hold in fee simple with all the rights
and incidents belonging to that estate. He would not have
() Ante, p. 462. (o) Ante, p. 461.
SECT, ii.] QUALIFIED RIGHT OF SUPPORT. 471
the perfect" easement of support from the minerals, but
this (as must be supposed for valuable consideration) he has
been contented to waive ; and he takes his tenement with
an easement of support of a qualified character. No deceit
is practised upon him, and no attempt is made to create an
estate in law without the usual incidents belonging to that
estate. Therefore no rule of law is violated. In Hilton v.
Lord Granville (p) as well as in Harris v. Ryding (q), and
in Smart v. Morton (r\ it is taken for granted that such
an arrangement would be valid, the owner of the minerals
making compensation toties quoties to the owner of the sur-
face for the damage done to the surface in working the
minerals, but surely it can make no difference whether the
owner of the surface is to be indemnified by subsequent
payments or by an advantage conferred upon him in re-
spect of price which he pays, or by the extended area which
he obtains in consideration of the loss or inconvenience to
which he may afterwards be subject from the subsidence
of the surface by the working of the minerals. On these
principles the original allottee of the land acquired his
tenement, with only the qualified right of support from the
minerals, and he could have maintained no action against
the allottee of the minerals for working them in a careful
manner." The above-mentioned case of Rowbotham v.
Wilson afterwards came before the Exchequer Chamber,
and although the judgment of the court below was affirmed,
the judges differed in opinion, but the case again came be-
fore the House of Lords, when the judges were unani-
mously in favour of the judgment previously delivered by
Lord Campbell in the Queen's Bench (s). The special
circumstances connected with the rights of the lord of the
manor and the allottees of waste lands, did, in a great
measure, govern the case of Roberts v. Haines before re-
ferred to (t) ; and in the case of the North-Eastern Rail- North-
way Company v. Elliott, it was held, that although, as be- j>y < c . v.
tween conterminous owners, the lateral support of a neigh- Em
bour's soil can only be claimed for the surface of the land
(p) Ante, p. 4G1. () Ante, p. 469.
(?) Ante, p. 459. (*) Ante, p. 4G5.
(r) Ante, p. 465.
472 EASEMENTS AND SERVITUDES. [CHAP. xvii.
iii its natural state, yet where a person sells land to another
to be used for an express purpose, he will not be allowed to
derogate from his own grant by doing anything in the ad-
jacent soil which unfits the land sold for the purpose for
which it was sold ; and it makes no difference that the land
so sold was taken under compulsory powers ; but a pur-
chaser is not entitled to any additional support afforded by
the accidental state in which the adjacent soil happens to
be at the time of the purchase, however long it may have
been in that state prior to the purchase. Thus, where the
owner of a drowned mine sold land to a railway company
for the purpose of building a bridge, and the land sold de-
rived additional support from the water in the mine, it was
held- that the railway company were not entitled to restrain
him from pumping out the water, and restoring the mine to
a working condition, although the mine had continued in
its drowned state, and the works had been abandoned for
a period of forty years prior to the purchase (11). In the
Compensa- case of Croft v. London and North- Western Railway Com-
uuforeseen P an Jj ^ was ne ^ tnat damages which were likely to accrue
damages, from subsidence, and might have been foreseen when a
grant to interfere with the sub-strata was given, were not
recoverable (v).
SUPPORT TO BUILDINGS.
The right of support to land is not necessarily extended to buildings. When the
soil is overloaded Wyatt v. Hanson Gay ford v. Nicholls Solomon v.
Vintners' Company Sprot v. Caledonian Railway Company. When the build-
ings did not cause the subsidence Hunt v. Peal-e Hamer v. Knou-les. Support
through an intermediate house Solomon v. Vintners' 1 Company. Prescriptive
right to support Stansell v. Jollard Hill v. Thornborouyh Dodd v.
Holme Partridge v. Scott Rogers v. Taylor Brou-ne v. Robins Bibby v.
Carter Hunt v. Peake Humphries \. Broyden Bonomi v. Backhouse So-
lomon v. Vintners' Company Berkley v. Shafto constructive suj>port.
No right THE right of support which the owner of one parcel of
land is entitled to receive from the owner of another parcel,
does not apply in all its bearings, as is apparent from the
00 Elliot v. North-Eastern Rail. (r) 32 L.J. Q.B. 113.
Co., ante, p. 4C9, post, p. 478.
SECT, ii.] SUPPORT TO BUILDINGS. 473
before-mentioned cases, to houses and buildings erected
upon the surface. As respects the land, the ground is en-
titled to support ex jure naturae ; but the right of support
which the houses and buildings are entitled to receive, is
an incident arising out of the right of support attached to
the soil, and can only be claimed either by grant, or by pre-
scription which presumes a grant. Even when the right
exists, the owner of the soil is not liable in all cases for
damages which may ensue to such erections in consequence
of excavations or mining operations carried on beneath the
soil provided he was only making a reasonable use of the
sub-strata. For instance, where a man builds a house at the
extremity of his own land, he does not thereby acquire any
right of support from his neighbour's land, unless he has
some grant to that effect ; so that the owner of the adjoin-
ing land will be justified in excavating his own land for
mining or any other purpose, even although by so doing,
he takes away the support necessary to uphold his neigh-
bour's house (w). A man has no right, in fact, so to load When the
his own soil as to make it require the support of his neigh- ovei .i oac i et i.
bour's (A-). But if the buildings which had been erected at
the extremity of the land did not cause or contribute to
the subsidence of the soil, then damage for the fall of the
buildings is recoverable for the loss thereby sustained as
part and parcel of the loss occasioned by the subsiding of
the soil. In Hunt v. Peake, Vice-Chancellor Wood said : wheu
" It is the ground that needs support : the ground has buildings
, ,, T did not
fallen, and they had a right to have the ground supported cause tho
as it stood, and to put anything upon the ground they subsidence.
thought fit, upon the supposition of its being supported by
their neighbours' land " (y). And Chief Baron Pollock, in
delivering judgment in Hamer v. Knowles, observed: "It
was said the plaintiff had no right of support for buildings,
but we think that if their being there did not contribute to
the subsidence, the plaintiff is entitled to damages for in-
(w) Rol. Ab. title Trespass, ante, Vintners' Co. 28 L.J. Ex. 370 ; Sprot
p. 456. v. Caledonian Railway Co.; Urowne
(x) Wyatt v. Harrison, ante, p. r. Robins; Hamer r. Knowles; ante,
457 ; Gayford v. Nicholls, 23 L.J. pp. 468, 4 69.
Ex. 205, "s.c. 9 Ex. 702 ; Solomon v. (y) 29 L.J. Ch. 785; ante, p. 468.
474 EASEMENTS AND SERVITUDES. [CHAP. xvn.
juries to them through the defendant's wrongful act in
causing the ground on which they stood to subside" (z).
Support And there is no right of support through an intermediate
through an & .
interme- house ; so that where there are three contiguous houses, 11
diate house. f.j ie OW ner of the first in removing his house causes the
second house to fall, and the third house afterwards fall in
consequence of the loss of support which it had received
from the second house, there will be no right of action by
the proprietor of No. 3 against the proprietor of No. 1, and
no such right will be acquired under the Prescription
Act (a).
Prescrip- But the owner of one house may acquire a right to sup-
tive right
to support, port from his neighbour's after a lapse of twenty years from
the erection of the house, as in that case a grant by the
owner of the adjoining or subjacent lands to such right of
Browner, support might be inferred (b). In the case of Browne v.
Robins (c), it was clearly decided that where a coal mine is,
as was the fact in that case, worked under another person's
property, although not immediately adjoining, that if any
damage ensues, such as the soil intervening giving way, the
workers of the mine will be liable, and the court in that case
seemed to lean to the opinion that if the house had been
standing twenty years there was a right to the support of the
surrounding ground for the maintenance of such house (d).
Such right of support of the owner of an ancient house
was di scusse( i i n the case f Hunt v. Peake, in which Vice-
Chancellor Wood is reported to have said, " I do not know
that it has come clearly, pointedly, and precisely in question
Bonomi v. * n the former authorities. No doubt the dicta in Bonomi
Backhouse. Vt Backhouse, and Humphries v. Brogden, are clear to the
effect that you acquire by a twenty years' acquiescence on
Humphries the part of your neighbour a right to the easement, or
v. Brogden whatever it is termed, of having the house you have added
to your own soil supported by your neighbour's soil ; but
(z) 30 L.J. Ex. 102. tridge v. Scott ; Rogers v. Taylor,
(a) Solomon v. Vintners Co., 28 ante, pp. 458, 466.
L.J. Ex. 370. (c) 28 L.J. Ex. 250 ; see also Bibby
(&) Stansell v. Jollard ; Hide v. r. Carter, 28 L.J. Ex. 182.
Thornborough ; Dodd v. Holme ; Par- (d) Ante, pp. 457, 468.
SECT, n.] SUPPORT TO BUILDINGS. 4-75
that doctrine lias been called in question" (e). It was ques-
tioned in the case of Solomon v. the Vintners' Company, Solomon v.
before referred to, but that case was not quite of the same c * ntD
character as the case of Hunt v. Peake, being the case of a
house which leaned upon another, and we are not therefore
surprised to find Chief Baron Pollock asserting that, " If
the house removed had been the next adj oining the plain-
tiffs, we should have been much embarrassed by some
cases and dicta," and " it seems to us that in the absence of
all evidence as to the origin or grant, the only way in which
such a right can be supported is that suggested by Lord
Campbell in Humphries v. Brogden, viz. an absolute rule
of law similar to that which is stated to have existed in the
civil law, but there is 110 authority for any such rule, at
least none is brought before us" (/). The three cases of
Humphries v. Brogden, Solomon v. Vintners' Company, Decisions
and Hunt v. Peake, were all decided upon different facts, ^ Chouse
and neither of them interferes with the judg ment in the standing
other. The result of the decisions would seem to be in years '
favour of buildings existing twenty years, being entitled to
the support of the soil ; and in all other cases when a
house falls in consequence of the subsidence of the soil
caused by mining or other operations, the question of a
right to support, will depend upon many surrounding cir-
cumstances ; such as, the state or condition of the building,
the distance from the excavations, the circumsta nces under
which the house was built, and whether the house was
built under a grant from the proprietor of the soil.
By deed, lands were conveyed by A. to B., with a reser- Constmc-
vation to A. of the minerals and a right to work them, upon
paying compensation to B. for any injury which might be
done to the land by the working of the mines . Buildings
were not mentioned in the deed in such a manner as to
show clearly that they might be built upon the land, but
the court thought, from a consideration of all the clauses
in the deed, that the deed contemplated the erection of
(e) 29 L.J. Ch. 785. (/) 28 L.J. Ex. 376.
476
EASEMENTS AND SERVITUDES.
[CHAP. xvii.
buildings, and upon that supposition decided that B. was
entitled to compensation both in respect of the buildings
and of the lands which were damaged ().
Support to
works of
public
companies.
Wyrley
Canal Co.
v. Bradley.
SUPPORT TO RAILWAYS, PUBLIC WORKS AND CANALS.
Works of a public company constructed tinder an Act of Parliament are entitled to
less subjacent but to more adjoining and adjacent support than the works of a
jtrivate owner. Wyrley Canal Company v. Bradley. Dudley Canal Company
v. Grazebrook Rex v. Leeds and Selby Railway Company. Caledonian
Railway Company v. Sprot. North-Eastern Railway Company v. Crossland.
Elliott v. North-Eastern Railway Company Subjacent adjoining and ad-
jacent support a compulsory purchase, differs only from an ordinary purchase
when the deed of conveyance or Act of Parliament imposes conditions.
Fletcher v. Great- Western Railway Company ; London 6; North- Western
Railway Company v. Acfiroyd not impugned by the judgment in Elliot v.
North-Eastern Railway Company. Damages from subsidence, Croft v. Lon-
don $ North- Western Railway Company.
THE right of support which a railway or other public
company constructed under an Act of Parliament is
entitled to receive from the subjacent and surrounding
soil and minerals is not co-extensive, so far as relates to
subjacent support, with the rights of private owners ; but,
as respects adjoining and to a greater degree adjacent
support, the right is more extensive.
In the case of the Wyrley Canal Company v. Bradley,
the court were of opinion that the meaning of the Act of
Parliament in requiring the coal-owners to give notice to
the company of their intention to work their mines within
a certain distance of the canal, was for the purpose of
enabling the company to pui'chase the rights of the coal-
owners, if they thought their canal works likely to be
endangered by the nearer approach of the miners ; but if
the company declined the purchase, as they had done in
this case, the court held, that the coal-owners were left to
their common law rights, as if no canal had been made,
and they might take every part of their coal in the same
manner as they might have done before the Act passed,
their former rights in that respect not having been taken
away by the Act, which had only appropriated the surface
0) Berkley v. Shafto, 15 C.B. N.S. 79.
SECT, ii.] SUPPOKT TO RAILWAYS CANALS. 477
of the land and so much of the soil as was necessary for the
cutting and making of the canal (A).
In the case of the Dudley Navigation Company v. Graze- Dudley
brook (i), land was taken by a canal company under an Act Canal Co -
of Parliament, for the express purpose of using the same brook.
for the canal, but the mines and minerals were to remain
the property of the vendor of the land, the company having
power to purchase them. The company refused to pur-
chase the mines, and the owner thereupon proceeded to
work them in the usual and proper manner, and thereby
injured the canal and works of the company ; but it was
held, in accordance with the before-mentioned case of
Wyrley Canal Company v. Bradley, that the company had
no remedy, and that the mine-owner was not liable to com-
pensate the company for the injury they had sustained.
In the course of argument Mr. Justice Littledale, a judge
peculiarly conversant with the rights of mineral owners,
made an observation which shows that he interpretated the
law differently from that since laid down in Harris v. Ryding
and other cases before mentioned (j). He said : " Suppose
there had been no Act of Parliament in this case, and a man
had sold the land to the company, reserving all mines to
himself, he surely would have been entitled to work the
mines in the usual way, even if he had thereby caused
damage to the company." In the case of Rex v. the Leeds Rex v.
and Selby Railway Company (&), where a conveyance was g ee ^ and
made under a railway Act, excepting the minerals, the Rail. Co.
mine-owner was held to be under no obligation to leave a
support for the surface.
But, in the cases of the Caledonian Railway Company Caledonian
v. Sprot (1) and the same Company v. Lord Belhaven (m) Ra ' 1- c -
it was held, that if an owner of land convey lands for the
purpose of a railway, but not under the provisions of an
Act of Parliament, reserving the minerals with power to
win and work the same, such reservation is subject to an
implied condition that such support be left for the surface
as was necessary for the land in its condition at the time of
(A) 7 East, 371. Fenton, v. the Trent and Mersey Na-
(t) 1 Barn Ad. 59. vigation Company, 2 Rail. Cases, 837.
fi) Ante, p. 459. (/) 2 Macq. 449.
(A) 3 Adol. and Ell. C83 ; and gee (m) 3 Jur. N.S. 573.
478 EASEMENTS AND SERVITUDES. [CHAP. xvn.
the grant, or the state, for the purpose of putting it into
which, the grant was made. The former of these two
cases was cited in Fletcher v. Great Western Railway
Company (w), and the only answer given to it was that the
conveyance containing the reservation in question, was not
made pursuant to an Act of Parliament.
North- j n North-Eastern Railway Company v. Crossland it
Jbjfl stern
Rail. Co. was held, that a vendor selling land to a railway company,
v. Cross- or j. ne purposes o f a railway, even though the sale was
compulsory, and the minerals were reserved, is bound to
leave sufficient support for the railway and works, both
vertical and lateral ; and in that case, although minerals of
great value were known to be under the railway, the owner
of the minerals was not allowed to search for them, be-
cause by so doing the railway and works would be da-
maged (o).
North* V ' The case of Elliot v " tlie North-Eastern Railway Corn-
Eastern pany, which has been for some time before the court, has
Rail. Co. a j. i en gt;h been decided in the House of Lords. In that
case a conveyance of a strip of land was made to a railway
company in 1834, under an Act of Parliament, which pro-
vided, by one section, that all coal or other mineral should
be deemed to be excepted out of any purchase of lands by
the company, and might be worked by the owners and
lessees thereof, " so that no damage or obstruction be done
or thereby occur to or in such railway or other works ;"
and in case of damage reparation was to be made by the
owners or lessees ; by another section, whenever the work-
ings should approach within twenty yards of any masonry
or building belonging to the company, notice thereof was
to be given to the company, and they might then require
the minerals under such masonry or building to be reserved
for their protection, in which case they were to purchase
the same ; but if the company did not require the minerals
to be left, the owners or lessees might work the minerals
under the said masonry or buildings, in the usual and ordi-
nary manner of working mines, doing no avoidable da-
() 28 L J. Ex. 147 ; 29 L.J. Ex. (o) 2 Jo. & H. 565.
253.
SECT, n.] SUPPORT TO RAILWAYS-CANALS. 479
mage. The land was taken for the purpose of building
thereon a bridge of great weight, which was subsequently
built by the company. At the time of the purchase there
was beneath the land, and a large tract of adjoining land
belonging to the vendor, an old mine, which had been acci-
dentally flooded, and had long previously been full of
water. In 1859 a lessee, deriving title under the vendor,
threatened to drain the mine and renew the workings:
and it was held, that, in addition to the right of surface
and lateral support, and the special protection afforded by
the Act in respect of workings within twenty yards dis-
tance of any masonry or building, the railway company
was entitled, by way of necessary incident to the grant of the
land, to such lateral support from the adjacent land of the
vendor not situate within the twenty yards as might be
necessary to uphold the bridge; and that the lessee was
properly restrained from working minerals under the adja-
cent land not the property of the company, and not within
the limits of twenty yards, so as to affect the stability of
the bridge. It was further held, that the circumstance
of the conveyance of the land being compulsory and not
voluntary could not, in the absence of any special enact-
ment, affect the construction of the conveyance, nor pre-
vent it from passing to the company the necessary right of
support as an ordinary legal incident to the purchase. The
judgment in the case merits attention. Lord Chelmsford
said : " The Act of the company provided for the rights of
the mine-owner arid of the company as far as the pur-
chased lands extend. But the injunction which has been
granted restrains the appellant from working, not only
under the purchased lands, but also under or in the land
adjoining to the land so purchased, in such a manner as to
affect the stability of the Victoria Bridge, the railway, and
other works. And the appellant contends that the com-
pany having secured by their Act a certain amount of
support to their masonry and buildings, and also within
the limits of the purchased lands what may be necessary
for the ordinary purposes of the railway, their rights are
defined by the Act, and the rule of the common law with
480
EASEMENTS AND SERVITUDES.
[CHAP. xvii.
Lateral
Subjacent
joining
support.
regard to lateral support from adjacent land is altogether
excluded. But this argument appears to me to be answered
by the decision of this House in the case of the Caledonian
Railway Company v. Sprot (p). There the Act contained a
clause making it competent to the proprietor whose lands
were authorized to be taken, to reserve from the bargain
and sale to the company the whole minerals in the lands
for his own proper use and behoof, but restraining him
from working the minerals till he had given security from
injury which might thence in any way result to the un-
dertaking. The conveyance of Mr. Sprot to the company
contained a reservation of the minerals under the land con-
veyed, and may be considered as equivalent to the excep-
tion of the minerals by the Act itself. And Lord Cran-
worth, then Lord Chancellor, in advising the House, said,
' Independently of any parliamentary enactment, the
effect of the conveyance was to convey the land to be
covered by the railway to the company, together with
a right to all reasonable subjacent and adjacent sup-
port, a right to such support being a right necessarily
connected with the subject-matter of the grant.' " Lord
Kingsdown, in his judgment, said, "The question then
is, what are the rights the company would have ac-
quired against the vendor by the conveyance from him if
the purchase had been made by private bargain, and the
conveyance had reserved to the vendor the right to the
minerals under the land sold ? I apprehend that upon the
authorities there can be no doubt that the vendor having
sold the land for the bridge and the railway, could not so
use the property which he had reserved, either the minerals
under the land sold, or the surface of or minerals under the
adjoining land, as to prejudice the use of that which he
had granted for the purpose for which it was known to
have been granted. He could not have taken away either
from under the land sold or from the adjoining land, mine-
rals, the abstraction of which would have the effect of
interrupting the railway, or endangering the bridge. That
this would be so at common law in the case of a private
(p) Ante, p. 466.
SECT, ii.] SUPPORT TO RAILWAYS CANALS. 481
contract was not disputed, but it is said the law is different
when a compulsory sale is made under an Act of Parlia- Compul-
ment ; in which case it was argued that the purchaser takes so , r y sale ,
" when and
nothing but what the Act of Parliament gives in terms, how dif-
It is extremely difficult to understand what difference there ferent to a
can be for this purpose between the effect of a conveyance one.
when the contract is entered into under the authority of
an Act of Parliament and when it is made by private bar-
gain. In either case the conveyance must pass the pro-
perty described in the deed with its legal incidents. There
may, indeed, be either in the conveyance or in the Act
of Parliament, provisions which exclude from the convey-
ance of the land its ordinary legal incidents, but unless
something to this effect be shown, the ordinary legal inci-
dents will attach to the land. The real question, therefore,
is, does the conveyance in this case, or does the Act under
which it was made, contain anything which excludes the
operation of the ordinary rule of law ? The appellant re-
presents the vendor, and can assert no rights which the
vendor could not have maintained. It is not sugo-ested
t>O
that there is anything special in the terms of the convey-
ance, but the provisions of the Act of Parliament are relied
on. Let the matter be considered first under the 27th sec-
tion. That section applies only to minerals reserved, that
is, to minerals under the sold land, and so far from contain-
ing anything contrary to the common law right, it expressly
recognizes and enforces it, for it provides that the minerals
may be got by the owner, so that no damage or obstruction
be thereby caused to the railway or works ; and that if any
damage be done and the owner do not repair it, the com-
pany may do it and charge the expense on the owner.
Does this recognition of the common law right to subjacent
support afford any inference of an intention to exclude the
common law right to lateral support ? I can see no foun-
dation for any such inference. But this question seems to
me to be settled by the decision of your lordships in Sprot's
case ( ' m tne l atter > it constitutes an incorporeal hereditament
to which the term easement is applied.
The Roman law is as follows : " Et quidem iiaturali jure,
communia sunt omnium hsec : aer, aqua profluens, et mare,
et per hoc littora maris" (a). It is worthy of remark, that
in Fleta, where the " res communes" are enumerated, no
(n) Inst. lib. ii. tit. i. s. 1.
When
water is
SECT, in.] NATURAL WATERS. 485
mention is made of "aqua profluens" (b). Vinnius, in Roman,
his commentary on the Institutions, explains the mean- law -
ing of the text ; as follows : " Communia sunt quse a
natura ad omnium usum prodita, in nullius adhuc di-
tionem aut dominium pervenerunt : Hue pertinent, prse-
cipue aer et mare, quge cum propter immensitatem, turn
propter usum, quern in commune omnibus debent, jure gen-
tium divisa non sunt, sed relicta in suo jure, et esse pri-
maevo adeoque nee dividi potuerunt. Item aqua pro-
fluens, hoc est, aqua jugis, quas vel ab imbribus collecta, vel
e venis terras scaturiens perpetuum fluxum agit, flumenque
aut rivum perennem facit. Postremo propter mare, etiam
littora maris. In hisce rebus duo sunt, qua3 jure naturali
omnibus competunt. Primum communis omnium est ha-
rum rerum usuS, ad quern natura comparata3 sunt : turn
siquid earum rerum per naturam occupari potest, id eate-
nus occupantis fit, quatenus ea occupatione usus ille pro-
miscuus non laeditur" (c). And he proceeds to describe the
use of water, "aqua profluens ad lavandum et potan-
dum unicuique jure naturali concesssa." The law as to
rivers, is " flumina autem omnia, et portus, publica sunt ;
ideoque jus piscandi omnibus commune est in portu flu-
minibusque." And Vinnius, in his commentary on this
passage says, " Unicuique licet in flumine publico navigare
et piscari" (d). And he proceeds to distinguish between a
river and its water : the former being, as it were, a per-
petual body, and under the dominion of those in Avhose ter-
ritories it is contained ; the latter being continually chang-
ing, and incapable, whilst it is there, of becoming the
subject of property, like the air and sea. In public rivers,
whether navigable or not, it appears that every one was
forbidden to lower the water or narrow the course of the
stream, or in any way to alter it, to the prejudice of
those who dwelt near, and there is a distinction made
between public and private rivers. From these autho-
rities it seems that the Roman law considered running
water, not as a bonum vacans, in which any one might ac-
quire a property ; but as public or common in this sense
(6) Lib. iii. ch. i. (d) Lib. ii. tit. i. p. 127.
(c) Lib. ii. tit. i. p. 124.
486
EASEMENTS AND SERVITUDES
[CHAP. xvn.
American
law.
Natural
rights.
only, that all might drink it, or apply it to the necessary-
purposes of supporting life ; and that no one had any pro-
perty in the water itself except in that particular portion
which he might have abstracted from the stream, and of
which he had the possession, and during the time of such
possession only (c).
The law in America as to the right of a land proprietor
to a natural water-course flowing through his land, appears
to embody the Roman law upon that subject, and it is
thus stated by Chief Justice Story (d) : " Every person
through whose land a natural water-course runs, has a
right, publici juris, to the benefit of it as it passes through
his land, to all the useful purposes to which it may be
applied; and no proprietor of land on the same water-
course, either above or below, has a right unreasonably, to
divert it from flowing into his premises, or obstruct it in
passing from them, or to corrupt or destroy it. It is inse-
parably annexed to the soil, and passes with it, not as an
easement, nor as an appurtenance, but as parcel. Use does
not create it, and disuse cannot destroy or suspend it.
Unity of possession and title in such land with the lands
above it or below it does not extinguish it or suspend it."
And Justice Story further expounds the law of natural
rights by stating that, " Primd facie, every proprietor upon
each bank of a river is entitled to the land covered with
water in front of his bank, to the middle thread of the
stream. In virtue of this ownership, he has a right to the
use of the water flowing over it in its natural current with-
out diminution or obstruction. But strictly speaking, he
has no property in the water itself, but the simple use of it
while it passes along. The consequence of this principle is,
that no proprietor has a right to use the water to the preju-
dice of another. It is wholly immaterial whether the party
be a proprietor above or below in the course of the river,
the right being common to all the proprietors on the river,
no one has a right to diminish the quantity which will, ac-
cording to the natural current, flow to the proprietor below,
(c) Digest, lib. xliii. tit. xii. xiii. ; (rZ) Johnson v. Jordan, 2 Mete.
Embrey v. Owen, 6 Ex. 368. (U.S.), 234.
SKCT. iii.] NATURAL WATERS. 487
or to throw it back upon a proprietor above. This is the
necessary result from the perfect equality of right among
all the proprietors of that which is common to all. The
natural stream, existing by the bounty of Providence for
the benefit of the land through which it flows, is an inci-
dent annexed, by the operation of law, to the land itself.
When I speak of this common right, I do not mean to be
understood as holding the doctrine that there can be no di-
minution whatsoever, and no obstruction or impediment
whatever, by the riparian proprietor, in the use of the
water as it flows, for that would be to deny any valuable
use of it. There may b3, and there must be, allowed of
that which is common to all, a reasonable ^use. The true
test of the principle and extent of the use is, whether it is
to the injury of the other proprietors or not. The maxim
is applied, Sic utere tuo ut alienum non Icedas " () Chasemore v. Richards, 7 H.L. Broadbent v. Ramsbotham, 25 L.J.
Ca. 349 ; New River Co. v. Johnson, Ex. 115.
6 Jur. X.S. 374. (y) Miller v. Miller, 9 Penn. St. Rep.
(w) Acton v. Blundell, post, p. 496 ; 74.
Galgay v. G. S. & W. Rail. 4 Ir. C.L. (?) 10 Cush. (U.S.), 191-
456 ; Insole v. James, 1 H. & N. 243 ;
SECT, in.] DIVERSION OF WATER. 493
the learned judge, from " a large running stream for agri- Diversion
culture or manufacturing purposes would cause no sensible
or practical diminution of the benefit to the prejudice of a
lower proprietor, whereas taking the same quantity from a
small running brook, passing through many farms, would
be of great and manifest injury to those below who need it
for domestic supply, or watering cattle, and therefore it
would be an unreasonable use of the water, and an action
would lie in the latter case, and not in the former. It is,
therefore, to a considerable extent, a question of degree.
Still the rule is the same, that each proprietor has a right
to a reasonable use of it for his own benefit, for domestic
use and for manufacturing and agricultural purposes. It
has sometimes been made a question whether a riparian
proprietor can divert water from a running stream for
purposes of irrigation ; but this, we think, is an abstract
question, which cannot be answered either in the affirma-
tive or negative, as a rule applicable to all cases. That a
portion of the water of a stream may be used for the pur-
poses of irrigating land we think is well established as one
of the rights of the proprietors of the soil along or through Rights of
which it passes. Yet a proprietor cannot, under colour of irngatl
that right, or for the actual purpose of irrigating his own
land, wholly abstract or divert the water-course, or take
such unreasonable quantity of water, or make such unrea-
sonable use of it, as to deprive other proprietors of the
substantial benefit which they might derive from it if not
diverted or used unreasonably The right to the use
of flowing water is publici juris, and common to all the
riparian proprietors ; it is not an absolute and exclusive
right to all the water flowing past their land, so that any
obstruction would give a cause of action, but it is a right
to the flow and enjoyment of the water, subject to a similar
right in all the proprietors to the reasonable enjoyment of
the same gift of Providence. It is only, therefore, for an Remedies.
obstruction and deprivation of this common benefit, or for
an unreasonable and unauthorized use of it, that an action
will lie. But for such deprivation or unwarrantable use
an action will lie, though there be no actual present
491
EASEMENTS AND SERVITUDES.
[CHAP. xvii.
damage." By reason of possession of an estate there is a
right to the use of a stream of water for the purposes of
irrigation for a certain limited period, and if an action be
brought for diverting the water, the right may be averred
in the declaration as an easement to which the plaintiff is
entitled by reason of his possession, without mentioning or
referring to the title-deeds under which the plaintiff ac-
quired the right (a).
Prescrip- A prescriptive title to divert water for any purpose may
" s ' be acquired (6) ; this has been clearly laid down in America
as well as in England (c), but the privilege claimed must
not go to the destruction of the subject-matter, otherwise it
will be unreasonable, and therefore bad (d).
FOULING Prima facie no one has a right to defile water, and there
WATER BY ' s no distinction in this respect between water which flows
MINING.
in an open water-course and water which percolates through
the soil (e). But a prescriptive right may even be acquired
to foul or corrupt the waters of a pond or stream for the
purposes of trade, or in the working for ores or mine-
rals (/) ; nevertheless such a prescriptive right must have
been continuous, and it is doubtful whether the exercise of
the right can be less than once at least in each year if a
title by prescription is relied upon (g).
In the case of Weeks v. Heward, where the plaintiff
filed a bill and prayed for an injunction to restrain the de-
fendant from polluting a stream which supplied certain
watercress beds of the plaintiffs, the injunction was re-
fused, on the ground, it seems, that the defendant's right
to use the water was, in the absence of any prescriptive
(a) Mortham v. Hurley, 1 Ell. &
B. C65.
(b) Embrey v. Owen; ante, pp.
327, 489; post, pp. 501, 503.
(c) Arnold v. Foot, 12 Wend. (U.S.),
330 ; Bealey v. Shaw, G East, 208 ;
Wright v. Williams, 1 M. & W. 77 ;
Arkwright v. Cell, 5 M. & W. 203 ;
Greatrex v. Hayward, 8 Ex. 291;
Magor v. Chad wick, 11 Ad. & Ell.
571; Murgatroyd v. Kobinson, 2G
L.J. Q.B. 233; Moore v. Webb, 1
C.B. N.S. 673 ; Sutcliffe v. Booth, 32
L.J. Q.B. 136.
(W) Arkwright v. Cell, 5 M. & W.
203 ; Taylor v. Bennett, 7 Car. & P.
329; Carlyon v. Levering, 26 L.J.
Ex. 251.
(e) Hodgkinson v. Ennor, 32 L.J.
Q.B. 231.
(/) Wright v. Williams, 1 M. &
W. 77; Wood v. Sutcliffe, 2 Sim.
N.S. 163; Ward v. Eobins, 15 M.
& W. 237 ; Carlyon v. Levering, 1
H. & N. 784 ; Stockport Water Co.
v. Potter, 7 Jur. N.S. 880.
(g) Arkwright v. Cell, 5 M. & W.
233 ; Lowe v. Carpenter, 6 Ex. 825.
SECT, in.] DIVERSION OF WATEE. 495
right, as good as the plaintiff's ; but the right of a riparian
proprietor to receive the water unpolluted does not seem to
have been disturbed by the decision (/*).
The fouling of water is prohibited by the 10 Vic. c. Water-
17, s. 61, and applies to every person who shall bathe Q* s s es
in any stream, reservoir, aqueduct, or other waterworks Act, 1847.
belonging to the undertakers, or wash, throw, or cause to
enter therein any dog or other animal : also every person
who shall throw any rubbish, dirt, filth, or other noisome
thing into any such stream, reservoir, aqueduct, or other
waterworks as aforesaid, or wash or cleanse therein any
cloth, wool, leather, or skin of any animal, or any clothes,
or other thing; and also to every person who shall cause
the water of any sink, sewer, or drain, steam-engine, boiler,
or other filthy water belonging to him or under his control,
to run or be brought into any stream, reservoir, aqueduct,
or other waterworks belonging to the undertakers, or shall
do any other act whereby the water of the undertakers shall
be fouled.
By the 24 & 25 Yic. c. 109, being the Salmon Fishery Salmon
Act, 1861, all persons are forbidden under the penalties of
the Act from putting, or knowingly permitting to be put,
into any water containing salmon, or into any tributaries
thereof, any liquid or solid matter to such an extent as to
cause the waters to poison or kill the fish ; but no person is
to be subject to the penalties of the Act for anything done
in the exercise of any right to which he is by law entitled,
if he prove to the satisfaction of the court before whom he
is tried that he has used the best practicable means, within
a reasonable cost, to render harmless the liquid or solid
matter so permitted to flow or to be put into waters ; and
nothing in the Act is to prevent any person from acquiring
a legal right in cases where he would have acquired it if
the Act had not been passed, or to exempt any person
from any punishment to which he would otherwise be
subject, or legalize any act or default that would but for
the Act be deemed to be a nuisance or otherwise contrary
to law (i).
(A) 10 W. R. 557. (i) Sees. 5, 6, 7 ; Hodgson v. Little, 14 C.B. N.S. Ill,
496 EASEMENTS AND SERVITUDES. [CHAP. xvn.
Scotland. The above-mentioned Act only applies to England, but
by the 25 and 26 Vic. c. 97, being the " Salmon Fisheries
Scotland Act, .1862," there is a similar provision in re-
ference to the salmon rivers of that country, with an
exception, however, in respect of the river Tweed and to
ajl the fisheries in that river, or the mouth or entrance
thereof, as defined by the " Tweed Fisheries Amendment
Act, 1859" (j).
SUBTKK- The distinction between underground and percolating
R \NKAN
AND waters, and those which flow on the surface, was clearly
w >RING taid down by Chief Justice Tindal in the case of Acton v.
Blundell (&). In that case the plaintiff claimed a right to
the water of certain underground springs, streams, and water-
courses, which, as he alleged, ought of right to run, flow,
and percolate, into his lands for supplying certain mills with
water ; and also for the draining off the water of a certain
spring or well of water in certain land of the plaintiff, by
reason of the possession of which land (as he also alleged)
he ought of right to have the use, benefit, and enjoyment
of the water of the said spring or well for the convenient
use of his land. The defendants, by their pleas, traversed
the plaintiff's alleged rights. At the ^trial, the plaintiff
proved, that within twenty years before the commencement
of the suit, viz. in the latter end of 1821, a former owner
and occupier of certain land and a cotton-mill, had sunk and
made in such land a well for raising water for the working
of the mill ; and that the defendants, in the year 1837, had
sunk a coal-pit in the land of one of the defendants at
about three-quarters of a mile from the plaintiff's well, and
about three years after sunk a second at a somewhat less
distance; the consequence of which sinkings was, that by
the first, the supply of water was considerably diminished,
and by the second was rendered altogether insufficient for
the purposes of the mill. The learned judge, before whom
the cause was tried, directed the jury that, if the defend-
ants had proceeded and acted in the usual and proper man-
ner on the land for the purpose of working and winning a
0') See sees. 13, 34; also the (4) 12 M. & W. 347.
Tweed Acts, 1857, 1859.
SECT, m.] SUBTERRANEAN WATER. 497
coal mine therein, they might lawfully do so, and that the
plaintiff's evidence was not sufficient to support the allega-
tions in his declaration. Against this direction of the judge
the counsel for the plaintiff tendered a bill of exceptions.
Lord Denman in his judgment said : " The question argued Distinction
before us has been in substance this, whether the right to W e at ^r 6n
the enjoyment of an underground spring, or of a well sup- flowing on
l-j l*L 1. J i i v .0, the surfac3
plied by such underground spring, is governed by the same an( j un( i e r-
rule of law as that which applies to, and regulates, a water- ground
course flowing on the surface. The rule of law which go- W1
verns the enjoyment of a stream flowing in its natural
course over the surface of land belonging to different pro-
prietors is well established ; each proprietor of the land has
a right to the advantage of the stream flowing in its natu-
ral course over his land, to use the same as he pleases, for
any purpose of his own, not inconsistent with a similar
right in the proprietors of the land, above or below ; so-
that, neither can any proprietor above diminish the quantity
or injure the quality of the water which would otherwise
naturally descend, nor can any proprietor below throw
back the water without the license or the grant of the pro-
prietor above. The law is laid down in those precise terms
by the Court of King's Bench, in the case of Mason v.
Hill (/), and substantially is declared by the Vice-Chan-
cellor in the case of Wright v. Howard (m), and such
we consider a correct exposition of the law. And if the
right to the enjoyment of underground springs, or to a
well supplied thereby, is to be governed by the same law,
then undoubtedly the defendants could not justify the sink-
ing of the coal-pits, and the direction given by the learned
judge would be wrong. But we think, on considering the Springs.
grounds and origin of the law which is held to govern run-
ning streams, the consequences which would result if the
same law is made applicable to springs beneath the surface,
and, lastly, the authorities to be found in the books, so far
as any inference can be drawn from them bearing on the
point now under discussion, that there is a marked and
(0 6 B. & Ad. 1 ; 2 Nev. & M. (m) 1 Sim. & S. 190 ; ante, p. 488.
747 ; ante, p. 487.
2K
498 EASEMENTS AND SERVITUDES. [CHAP. xvn.
Distinction substantial difference between the two cases, and that they
springs 1 are not to ^ e governed by the same rule of law. The
and water ground and origin of the law which governs streams run-
thTsur- n nm m their natural course would seem to be this, that the
face. right enjoyed by the several proprietors of the lands over
which they flow is, and always has been, public and noto-
rious : that the enjoyment has been long continued in or-
dinary cases, indeed, time out of mind and uninterrupted ;
each man knowing what he receives and what has always
been received from the higher lands, and what he transmits
and what has always been transmitted to the lower. The
rule, therefore, either assumes for its foundation the implied
assent and agreement of the proprietors of the different
lands from all ages, or perhaps it may be considered as a
rule of positive law (which would seem to be the opinion of
Fleta and of Blackstone), the origin of which is lost by the
progress of time ; or it may not be unfitly treated, as laid
down by Mr. Justice Story, in his judgment in the case of
Tyler v. Wilkinson, in the courts of the United States (??),
as ' an incident to the land ; and that whoever seeks to
found an exclusive use, must establish a rightful appropri-
ation in some manner known and admitted by the law.'
But in the case of a well sunk by the proprietor, in his own
land, the water which feeds it from a neighbouring soil
does not flow openly in the sight of the neighbouring pro-
prietor, but through the hidden veins of the earth beneath
its surface : no man can tell what changes these under-
ground sources have undergone in the process of time : it
may well be, that it is only yesterday's date, that they first
took the course and direction which enabled them to supply
the well : again, no proprietor knows what portion of water
is taken from beneath his own soil : how much he gives
originally, or how much he transmits only, or how much he
receives : on the contrary, until the well is sunk, and the
water collected by draining into it, there cannot properly be
said, with reference to the well, to be any flow of water at
all. In the case, therefore, of the well, there can be no
ground for implying any mutual consent or agreement, for
(n) 4 Mason (U.S.), 401 ; ante, p. 486.
SECT, in.] SUBTERRANEAN WATER. 499
ages past, between the owners of the several lands beneath
which the underground springs may exist, which is one of
the foundations on which the law as to running streams is
supposed to be built ; nor, for the same reason, can any
trace of a positive law be inferred from long-continued ac-
quiescence and submission, whilst the very existence of the
underground springs or of the well may be unknown to the When in-
proprietors of the soil. But the difference between the two ^r'PhtTs
cases with respect to the consequences, if the same law is to unknown.
be applied to both, is still more apparent. In the case of
the running stream, the owner of the soil merely transmits
the water over its surface : he receives as much from his
higher neighbour as he sends down to his neighbour be-
low : he is neither better nor worse : the level or the water
remains the same. But if the man who sinks the well in
his own land can acquire by that act an absolute and inde-
feasible right to the water that collects in it, he has the
power of preventing his neighbour from making any use of
the spring in his own soil which shall interfere with the
enjoyment of the well. He has the power, still further, of
debarring the owner of the land in which the spring is
first found, or through which it is transmitted, from drain-
ing his land for the proper cultivation of the soil ; and
thus, by an act which is voluntary on his part, and which
may be entirely unsuspected by his neighbours, he may im-
pose on such neighbour the necessity of bearing a heavy
expense, if the latter has erected machinery for the pur-
poses of mining, and discovers, when too late, that the ap- Mining not
propriation of the water has already been made. Further,
the advantage on one side, and the detriment on the other,
may bear no proportion. The well may be sunk to supply
a cottage, or a drinking-place for cattle ; whilst the owner
of the adjoining land may be prevented from winning
metals and minerals of inestimable value. And, lastly,
there is no limit of space within which the claim of right
to an underground spring can be confined : in the present
case, the nearest coal-pit is at a distance of half a mile
from the well : it is obvious the law must equally apply if
there is an interval of many miles. Considering, therefore,
2K2
500 EASEMENTS AND SERVITUDES. [CHAP. xvn.
the state of circumstances upon winch the law is grounded
in the one case to be entirely dissimilar from those which
exist in the other ; and that the application of the same
rule to both would lead, in many cases, to consequences at
once unreasonable and unjust ; we feel ourselves warranted
in holding, upon principle, that the case now under discus-
sion does not fall within the rule which obtains as to sur-
face streams, nor is it to be governed by analogy therewith.
No case has been cited on either side bearing directly on
the subject in dispute. The case of Cooper v. Barber (o),
which approaches the nearest to it, seems to make against
the proposition contended for by the plaintiff. In that case,
the defendant had for many years penned back a stream
for the purpose of irrigation, in consequence of which the
water had percolated through a porous and gravelly soil
into the plaintiff's land ; but as this percolation had been
insensible and unknown by the plaintiff until the land was
applied for building purposes, the court held, that the de-
fendant had gained no right thereby, so as to justify its
How far continuance. The case of Partridge v. Scott (p), is an au-
fandTmay thority to show that a man, by building a house on the ex-
be claimed tremity of his own land, does not thereby acquire any right
water from ^ easement, for support or otherwise, over the adjoining
flowing land of his neighbour. It is said, in that case, f he has no
right to load his own soil so as to make it require the sup-
port of that of his neighbour, unless he has some grant to
that effect.' It must follow, by parity of reason, that, if
he digs a well in his own land so close to the soil of his
neighbour, as to require the support of a rib of clay or of
stone in his neighbour's land to retain the water in the well,
no action would lay against the owner of the adjacent land
for digging away such clay or stone, which is his own pro-
perty, and thereby letting out the water; and it would
seem to make no difference as to the legal rights of the
parties, if the well stands some distance within the plain-
tiff's boundary, and the digging by the defendant, which
occasions the water to flow from the well, is some distance
within the defendant's boundary; which is, in substance,
(o) 3 Taunt. 99. (p) 3 M. & W. 230.
SECT, in.] SUBTERRANEAN WATER. 501
tlie very case before us. The Roman law, forms no rule,
binding in itself, upon the subjects of these realms ; but, in
deciding a case upon principle, where no direct authority
can be cited from our books, it affords no small evidence of
the soundness of the conclusion at which we have arrived,
if it proves to be supported by that law, the fruit of the
researches of the most learned men, the collective wisdom
of ages and the groundwork of the municipal law of most
of the countries in Europe. The authority of one at least
of the learned Roman lawyers appears decisive upon the
point in favour of the defendants; of some others the
opinion is expressed with more obscurity. In the Digest,
lib. xxxix. tit. iii., De aqua pluvia arcenda (sec. 12), 'De-
nique Marcellus scribit, cum eo, qui in suo fodiens, vicini
fontem avertit, nihil posse agi : nee de dolo actionem ; et
sane non debet habere; si non animo vicini nocendi, sed
suum agrum meliorem faciendi id fecit.' It is scarcely
necessary to say, that we imitate no opinion whatever as to
what might be the rule of law, if there had been an unin- rvescrip-
terrupted user of the right for more than the last twenty ng *'
years ; but, confining ourselves strictly to the facts stated
in the bill of exceptions, we think the present case, for the
reasons above given, is not to be governed by the law
which applies to rivers and flowing streams, but that it
rather falls within that principle, Avhich gives to the owner
of the soil all that lies beneath his surface ; that the land
immediately below is his property, whether it be solid rock,
porous ground, or venous earth, or part soil and part water ;
that the person who owns the surface may dig therein, and Mining
apply all that is there found to his own purposes at his free pl
will and pleasure ; and that if, in the exercise of such right,
he intercepts or drains off the water collected from under-
ground springs in his neighbour's well, this inconvenience
to his neighbour falls within the description of damnum
absque injuria, which cannot become the ground of an
action."
The decision in Acton v. Blundell, was afterwards ex- Dickinson
plained by Pollock, C.B. ( ' dergronnd
but he must not trespass upon his neighbour's barriers so as water for
to cause the water to flow into his neighbour's mine (i). mmm e-
The same principle was sustained in the case of Chasemore
v. Richards (M), on the ground that everything under the
surface, whether it be solid rock or porous ground, or part
soil and part water, belonged to the owner of the sur-
face, as incident to the land ex jure naturae. But there
must be a reasonable use only of the water underground (v),
and it is not improbable that if the water was extracted
from the soil for purposes foreign to the soil, to the injury
of adjoining lands, that such a use would be held un-
lawful (iv).
It may be doubted, notwithstanding what fell from Lord No pre-
Denman in Acton v. Blundell (#), whether there can be a ^If/to 6
claim by prescription to underground water. Lord Wensley- under-
dale, in the above-mentioned case of Chasemore v. Richards, ^^
said he did not think that the principle of prescription was ap-
plicable to such a case, although Coleridge, J., in the same
case, may be said to have raised a question whether a right
to water percolating through the earth might not be acquired
on the ground of long and uninterrupted enjoyment. But
if we remember that the common law principle of prescrip-
tion presumes a grant that open adverse enjoyment in such
cases is the evidence of such a grant, and that the right
itself is rather ex jure naturae than an easement attached
to land, we shall find some difficulty in supporting a pre-
scriptive right to subterranean waters (y). By the Code Code Na-
Napoleon low lands are subjected to those more elevated, po (
to receive the waters naturally running from them, and
neither the proprietor of the high or low land can do any-
thing to prevent the natural flow of the water. In the
absence of prescription or other lawful title, the proprietor
of the soil may use all springs in his land at pleasure,
(0 Clegg v. Dearden, 12 Q.B. 576 ; dale in Chasemore v. Richards, 29 L.J.
Powell v. Aiken, 4 K. & J. 343 ; Wil- Ex. p. 88 ; 7 House of Lords' Cases,
liamson v. Baird, 10 Jur. N.S. 154. 349.
() 29 L.J. Ex. 87; ante p. 491. (*) Ante, p. 501.
M Walker v. Fletcher, 3 Bli. 172. M Ante, pp. 327, 44C, 489, 491,
(w) See dictum of Lord Wensley- 494.
504
EASEMENTS AND SERVITUDES.
[CHAP. xvn.
American
law.
ARTIFI-
CIAL
WATERS
AND
WATER-
COURSES.
and lie lias a right to cut a way for running water to flow
through his land from an adjoining proprietor's land. Ser-
vitudes, apparent and continual, whether as respects water
or otherwise, may be acquired by grant, or by a possession
for thirty years; but continual servitudes non-apparent
(which would seem to include underground water) and
containable servitudes, apparent and non-apparent, can only
be created by deed (z). The law of servitudes, however, in
France, cannot be said to be very firmly settled, but several
useful treatises have been published on the subject (a).
The law of America on the subject of underground
water has recognized the principles of the law as esta-
blished in this country, and the Civil Code of Louisiana
contains similar provisions to those of the French Code
concerning servitudes for drawing water from the well of
another, and includes servitudes of aqueduct and drain as
among continuous, and that of drawing water among the
discontinuous servitudes (6).
It was stated in the case of Magor v. Chadwick that
artificial water-courses, in the absence of special custom,
were not generally distinguishable in law from natural
ones (c), but that doctrine has been materially qualified by
subsequent cases. Where, for instance, an artificial water-
course was granted for temporary purposes, it was held that
no action will lie for a diversion thereof by the grantor,
and that the right to artificial water-courses, as against the
party creating them, must depend upon the character of
the water-course and upon the circumstances under which it
was created (d). The law does not authorize the occupiers
of a mine on a higher level to interfere with the gravitation
of the water, so as to make it flow into a mine on a lower
level (e).
Where an artificial water-course has been made to pass
through two estates, when jointly held by the same person,
(z) Code Nap. art. 640-644, 690,
691, ante, p. 443.
(a) Duranton, Cours du Droit
Fran9ais, 144 ; Merlin Re'pertoire de
Jurisprudence, tit. Cours d'Eau.
(6) Civ. Co. Louisiana, art. 716-
732, 768-770.
0) 11 Ad. & Ell. 571 ; Ark-wright
f. Gell, 5 II. & W 203.
(d) Sutcliffev. Booth, 32 L.J. Q.B.
136; Wood v. Waud, 3 Ex. 776;
Greatrext'. Hayward, 8 Ex. 291 ; s.c.
22 L.J. Ex. 137; Whaley v. Laing, 2
H. & N. 476 ; 3 H. & N. 675, 901.
(e) Williamson v. Baird, 10 Jur.
N.S. 154.
SECT, ui.] ARTIFICIAL WATERS. 505
it will be difficult, when a severance of the two estates
takes place, to decide the extent of the rights of the owner
of each estate to the water-course (/).
How far an easement in an artificial water-course can be Prescrip-
acquired by one not owning the land through Avhich it is tive nghts
constructed was raised in the case of Beeston v. Weate (g).
The authorities do not go the length of affirming that pre-
scriptive rights may not be acquired in artificial water-
courses, but rather that the mode of acquiring such pre-
scriptive rights is different to the mode of acquiring similar
rights in natural streams ; and this doctrine was afterwards
maintained by Chief Baron Pollock, in Wood v. Waud (A),
who said : " We entirely concur with Lord Denman that a
water-course, of whatever antiquity, and in whatever degree
enjoyed by numerous persons, cannot be enjoyed so as to
confer a right to the use of the w r ater, if proved to have
been originally artificial, is quite indefensible ; but, on the
other hand, the general proposition, that, under all circum-
stances, the right to water-courses, arising from enjoyment,
is the same whether they be natural or artificial, cannot
possibly be sustained. The right to artificial water-courses,
as against the party creating them, surely must depend
upon the character of the water-course, whether it be of a
permanent or temporary nature, and upon the circum-
stances under which it is created. The enjoyment for
twenty years of a stream diverted or penned up by perma-
nent embankments, clearly stands on a different footing
from the enjoyment of a flow of water originating in the
mode of occupation or alteration of a person's property,
and presumably of a temporary character and liable to
variation." The same principle was recognized in Simpson
v. Hoddinott, and has not since been departed from (i).
But a water-course, though artificial, may have been ori-
ginally made under such circumstances, and have been so
used as to give all the rights that the riparian proprietor
(/) Wardle v. Brocklehurst, 29 L.J. (A) 3 Ex. 777 ; s.c. 1 8 L.J. Ex. 305.
Q.B. 145. (t) 26 J-J- C - P - 148 5 8ee also
(#) 25 L.J. Q.B. 115; 5 Ell. and Briscoe r. Drought, 11 Ir. C.L. 266,
B. 986; see also Baer v. Martin, 8 274.
Blackf. (U.S.), 817 ; Prescott v. White,
21 Pick. (U.S.), 341.
506
EASEMENTS AND SERVITUDES.
[CHAP. xvii.
American
law.
would have had if it had been a natural stream ; and in an
action by one riparian proprietor against another for the
pollution and diversion of a water-course, it was held a mis-
direction to tell the jury, that, if the stream were artificial
and made by the hand of man, the plaintiff could have no
cause of action (i).
In America the distinction between prescriptive rights in
natural and artificial waters does not seem to have been so
clearly settled as in England (j) ; nevertheless, there, the
terms in which an artificial water-course is created must be
considered in determining the extent and mode of its use,
and in the absence of an express grant defining the extent
and mode of application to use of an artificial water-course,
reference must be had to such use as had previously
existed (&).
SECTION IV.
EIGHTS OF WAY WAY-LEAVES.
A right of way not necessarily a right of way for all purposes when for limited
purposes a grant in gross, is personal Prescriptive right ; how affected by
unity of ownership -pleading the right Way-leaves when under a grant of
way-leaves a railway maybe made by locomotive power construction of rights
of way, way-leaves, waggon-way, under a reservation for obtaining minerals
are ways capable of exception or reservation out of grant of land ways of
necessity.
A right of A RIGHT of way is not to be affected by a declaration of
way not t j t j e unfa the 25 & 26 Vic. c. 67. If a right of way is ac-
necessanlv i -, c i -n i
a right of quired under and by virtue of a grant, the right will be
for all cons {- rue d most liberally for the grantees (I). But a right
oses. ., . , ~
of way does not necessarily imply a right of way for
all purposes, and it may even exist for all purposes except
one, as, for instance, the carrying of coals (m). There may
be a right of way over the land for farming purposes, which
(*) Sutcliffe v. Booth, 32 L.J. Q.B. 279 ; Roberts v. Karr, 1 Taunt. 495 ;
136. Harding v. Wilson, 2 B. & C. 96 ;
(j)Watkinstf.Peck, 13 N.H. (U.S.) Plant v. James, 5 B. & Ad. 791;
purposes.
360, 370; Wheatley v. Chrisman, 24
Penn. St. Rep. 298, 304 ; Hoffman v.
Stowe, 7 Cal. (U.S.), 46.
(A) Tyler v. Wilkinson, 4 Mason
(U.S.), 3"97, 407; Leer. Stevenson, 1
Ell. B. & Ell. 512 ; s.c. 27 L.J. Q.B.
263.
(/) Ballard v. Dyson, 1 Taunt.
Dand v. Kingscote, 6 M. & W. 197 ;
Bishop v. North, 12 L.J. Ex. 362;
Wardle v. Brocklehurst, 29 L.J. Q.B.
146.
(OT) Marq. of Stafford v. Coyney, 7
B. & C. 257; Henning v. Burnet, 8
Ex. 187.
SKCT. iv.] RIGHTS OF WAY WAY-LEAVES. 507
would not imply a right to carry coal for the working of a
mine under the surface (n). But a right of way for car-
riages and hogs is prima facie evidence of a right of way
for all cattle, and the onus of proving the restriction lies on
the grantor, and a right of carriage-way will comprehend a
foot-way as well as a horse-way (o) although probahly not
a drift-way ; but a foot and horse-way do not imply a right
to carry even manure in a wheelbarrow, although he who
wheels it travels on foot (p). A right of way for all man-
ner of carriages does not necessarily imply a right of
way for all manner of cattle (q). Still, if a way has been
used for several purposes, it is an inference that there is a
right of way for all purposes, but if the evidence shows a
usage for one purpose, or for particular purposes only, an
inference of a general right would hardly be presumed.
Whenever the right exists there must be a reasonable exer-
cise of the right (r).
The distinction between a right of way for a limited or Limited
for general purposes, as also the manner in which the P^ r P ses
grantee may defeat his own right is illustrated in the case
of the South Metropolitan Cemetery Company v. Eden (s),
Jervis, C.J., in delivering judgment, said: "This is not
like the case of Henning v. Barnet (t\ where the
grant was of a right of way to a particular place for a
particular and limited purpose. If I grant a man a way to
a cottage which consists of one room, I know the extent of
the liberty I grant ; and my grant would not justify the
grantee in claiming to use the way to gain access to a town
he might build at the extremity of it. Here the grant is
general, to use the road for the purpose of going to or re-
turning from the land conveyed, or any part thereof : it is
not denned, as in the case referred to. But whether the
plaintiffs had or had not a right to alter the position of the
gates as described in the plan, it is quite clear that they
had a right of way along the road in question to the upper
end of the land ; and the defendant having obstructed that
(ra) Higham v. Rabett, 5 Bing. N.C. (?) Ballard v. Dyson, 1 Taunt.
622 ; Cowling v. Higginson, 4 M. & p. 285.
W. 245. (r) Hawkins v. Carbines, 27 L.J.
(o) Davies v. Stephens, 7 Carr & Ex. 44.
P. 670. (0 16 C.B. 57.
(p) Brunton v. Hall, 1 Q.B. 792. (<) Ante, p. 506.
503
EASEMENTS AND SERVITUDES.
[CHAP, xvii-
A grant in
gross, is
personal.
Prescrip-
tive rirfit.
Pleatling
right.
way by the excavation of the road in the manner stated,
the plaintiffs have, it is conceded, a right of action, unless
that right is affected by the doctrine of suspension, which,
I must confess, I do not understand. The plaintiffs have
a right of way to the upper end of their land. Suppose
they do not choose to have a gate at all, but build up a
wall along the whole line, why may they not say, when we
want to exercise our right, we will knock down our wall ? I
think the plaintiffs have done nothing to defeat the right
granted to them ; and that, whether there were two gates
or only one, the defendant had no right to obstruct the
way in the manner he has done."
If the way be granted in gross, it is personal only, and
cannot be assigned (u).
The existence of the right is a question for the judge,
the extent of the right and the reasonable use of the way,
are questions for the jury (u).
Under a plea of a prescriptive right, it was formerly neces-
sary to show a user of it for all purposes, time out of mind,
according to the usual terms on which such plea is pleaded,
but the claims to rights of way have since been provided
for by the 2nd section of the Prescription Act (w}. If a
person entitled to a right of way by prescription, afterwards
becomes the owner of the soil, over which the right is exer-
cised, for the same extent of interest in the land as in the
right of way, the prescriptive right will, by such unity of
possession, become extinguished (#) ; but as there will be
no merger unless the duration of the two interests are the
same, if the same person becomes entitled to the right
and the land for different durations of interest, the right
will, in such an instance, only be suspended. Where the
right of way is extinguished by unity of possession, it will,
in some cases revive, as by partition among parceners.
In pleading a right, care should be taken to aver the ex-
tent of the right, as will be seen by a reference to the case
(w) Weekly v. Wildman, 1 Ld.
Kaym. 407 ; Ackroyd v. Smith,
10 C.B. 164; s.c. 19 L.J. C.P.
315; Bailey v. Stevens, 31 L.J. C.P.
226, 229.
() Cowling v. Higginson, 4 M. &
W. 256 ; Hawkins v. Carbines, 27 L.J.
Ex. 44.
(w>) Ante, pp. 327, 335.
(a;) Wardle v. Brocklehurst, 29
L.J. Q.B. 146; Bailey v. Stephens,
suprk.
SECT. iv.J RIGHTS OF WAY WAY-LEAVES. 509
of Midgley v. Richardson (y), wherein Mr. Baron Rolfe
said : " The question is, whether the plea sufficiently avers
that the Derwent Colliery from which the coal in question
was to be conveyed, Avas a mine belonging to the Bishop's
see. The averment that the lands were parcel of the manor,
is equivalent to an averment that they Avere parcel of the
demesnes. But they might be part of the demesnes, which
were copyhold, and the mines might by the custom belong
to the copyhold tenant ; and, as the plea is to be taken most
strongly against the party pleading, we think the mines are
not sufficiently alleged to belong to the see.
The grant of a right of way, or the power to make a way, Way-
will not be confined to such ways as were in use at the
time of the grant. Thus, the reservation in 1630 of a suf-
ficient way-leave (z) was decided in 1830 to enable the then
owner to make a railway. Lord Wensleydale (when Mr.
Baron Parke) in delivering judgment said : " The reserva-
tion is to be construed according to the rule laid down in
Sheppard's ' Touchstone,' 100 ; in the same way as a grant
of the owner of the soil of the like liberties : ' for what will
pass by words in a grant will be excepted by like words in
an exception.' Now the reservation is a right to dig a pit
or pits (which pits are mentioned in the compensation clause
to be such as may thereafter happen to be sunk), and of
sufficient way-leave and stay-leave connected with these
pits. There is no doubt that the object of the reservation
is to get the coals beneficially to the owner of them, and
therefore it should seem that there passes by it a right to
such a description of way-leave, and in such a direction, as
will be reasonably sufficient to enable the coal-owner to get
from time to time all the strata of coal to a reasonable
profit : and therefore the owner is not confined to such a
description of way as is in use at the time of the grant, and
in such a direction as is then convenient " (a).
In another case, where the owner of an estate was ati-
(y) 14 II. & W. 608. (a) Dand r. Kingscote, C M. & W.
(2) "Way-leaves in the coal districts 197 ; Pit r. Ladj- Claverinth, 1 Barn,
of the North of England, are called 318 ; Senhouse r. Christian, 1 T.R.
outstrokes. 5CO.
510 EASEMENTS AND SERVITUDES. [CHAP. xvn.
thorized by Act of Parliament to make railways or roads to
convey coals, ironstone, limestone, marble, or other stone or
minerals over the lands of another person, it was held that
the power extended to the making of railroads to be tra-
versed by locomotive engines. Mr. Baron Parke, in de-
livering judgment, said : " I think the defendants in this
case have a right to make the proposed road for carrying
coals by any reasonable means, provided it does not create
a nuisance. The power given by the Act is to make any
railway ; and it is not shown that the term railway has any
definite meaning, requiring it to be made on the level ; and
I cannot think that it can be qualified by showing that, at
the time of the passing of the Act, a particular species of
railway, unlike the one contemplated, was in use. The
power is general to make railways over the lands or grounds
of any person or persons, making satisfaction for the da-
mages to be occasioned thereby. The railroad in question
must, however, be properly adapted to the purpose, and
reasonable care must be taken that it does not become a
nuisance to the public or to individuals" (6).
Construe- The construction to be placed on the reservation of a
rihts of right f way > " way-leave," " waggon-way," came before
way, way- the court in 1842 (c). The Dean and Chapter of Durham
waggon- being seized in fee of certain lands, granted a lease thereof
way. to one W., in the year 1832, reserving to themselves the
mines, quarries, and seams of clay, with power to work the
said minerals and to carry the same away with free ingress,
egress, and regress, way-leave and passage, to and from the
same, or to or from any other mines, quarries, seams of
clay, lands and grounds, on foot and on horseback, and
with carts and all manner of carriages, and also all neces-
sary and convenient ways, passages, conveniences, privi-
leges, and powers whatsoever, for the purposes aforesaid,
and particularly of laying, making, and granting waggon-
way or waggon-ways in or over the said premises or any
part thereof, paying reasonable damages for spoil of ground
to be thereby done, upon the adjudication of two iudiffe-
(&) Bishop v. North, 11 M. & W. (c) Durham & S. Ey. Co. v
426 ; s.c. 12 L.J. Excb. 362. Walker, 2 Q.B. 940.
SECT, iv.] EIGHTS OF WAY WAY-LEAVES. 511
rent persons to be chosen by the parties. Afterwards the
lessors granted to a railway company, for a term, liberty to
enter the demised lands, and to make and maintain a double
main road or way over them, in a specified line, and to use,
and grant the use of such way for the conveyance of pas-
sengers, coals, and goods. The company then made a rail-
way over the lands, which W., before the last mentioned
grant, had demised to a tenant. W. sued the company for
damage to his reversion. The company pleaded the reser-
vation in the first-mentioned indenture, which they alleged
to have been made between the Dean and Chapter of the
one part, and W., the plaintiff, of the other part, and averred
that they, as the servants, and by command of the Dean and
Chapter, entered for the purpose of making, and made, over
the demised lands, a road or way, being such a road or way
as was within the intent and meaning, and could and might
be made by virtue of the reservation. It was proved on
the trial that the railway was adapted, and of proper width,
for carrying on a traffic in coals with certain parts of the
county ; that a railway fitted for such traffic would also
cany passengers, which, however, would make no difference
to the land, but only increase the wear and tear of the rails :
that the railway was not yet formed over plaintiffs land, but
had reached a point within three hundred yards of it, and
that from that point, passengers were carried on the railway.
The judge in summing up, directed the jury that, if the
railway was made over plaintiff's land for other purposes
besides the carrying of coals or other minerals, it was not
within the reservation and they must find for the plaintiff ;
which they did. On a bill of exceptions, and writ of error,
the Court of Exchequer Chamber awarded a venire de
novo, and held : 1st. That the right reserved to the Dean
and Chapter was only that of making and using ways and leave . s .
J , , % r i restricted
granting way-leaves for the purpose ot getting the excepted to the
wood and minerals ; not for general purposes ; nor for car- 6 e . ttm s of
. , , ' . minerals,
rymg coals and minerals, from whatever mines gotten ; nor
for carrying coals and minerals of their own, gotten else-
where than on the demised lands. 2nd. But that, if the
road, when made, was such as the reservation authorized,
512 EASEMENTS AND SERVITUDES. [CHAP. xvii.
the intention to use it for a purpose not authorized was no
ground for an action by the reversioner, though, if the in-
tent were carried into effect, the tenant might be entitled
to bring trespass. 3rd. That the proper questions for the
jury were, whether, when the road was formed, it had be-
come necessary or expedient for the railway company to
make a road for the purpose of getting the excepted mine-
rals ; and, if so, whether the road made was a proper road
for that purpose, assuming that it would be used for no
Not capable other. 4th. That a right of way cannot, in strictness, be
tioiTor^e- ma( ^ e ^ e subject either of exception or reservation. It is
servation. neither parcel of the thing granted, nor is it issuing out of
the thing granted, the former being essential to an excep-
tion, and the latter to a reservation. A right of way re-
served (using that word in a somewhat popular sense) to a
lessor, as in the present case, is, in strictness of law, an ease-
ment newly created by way of grant from the grantee or
lessee, in the same manner as a right of sporting or fish-
ing, Avhich has been lately much considered in the cases of
Doe dem Douglas v. Lock (d) and Wickham v. Hawker (e).
It is not indeed stated in this case that the lease was exe-
cuted by the lessee, which would be essential in order to
establish the easement claimed by the lessors as in the na-
ture of a grant from the lessee ; but we presume that in
fact the deed was, according to the ordinary practice,
executed by both parties, lessee as well as lessors. Tin-
dal, C. J., concluded the judgment in the case by say-
Way- i n g that, " It was pressed in the argument on behalf of the
the North, plaintiffs in error, that general way-leaves, or powers of
granting rights of way, over lands demised, as easements re-
served to grantors or lessors are so very usual in the North
of England, and often constitute so very valuable a pro-
perty, that the court will so construe the reservation as to
cariy out this presumable intention. But to this we cannot
accede. Indeed, if Ave were to hazard a conjecture on this
subject, we should be strongly disposed to think that the
words in the present lease, and which it was suggested are
the same that occur generally in leases from the Dean and
(d) 2 A. & E. 705. (e) 7 M. & W. 63.
SECT, iv.] RIGHTS OF WAT WAY-LEAVES. 513
Chapter, were probably introduced long ago, before the
great importance of way-leaves had been fully felt or un-
derstood either by grantor or grantees, and when really
nothing more was thought of than the subject-matter ac-
tually excepted, and what was necessary for the purpose of
making that available ; and that the same words have been
subsequently retained without much attention to their pre-
cise import. Be that, however, as it may, we are clearly of
opinion that the ways referred to in the exception in this
case are confined to ways necessary or proper for enabling
the lessors to get the matters excepted, and, in like manner,
that the powers mentioned in the latter part of the excep-
tion, and particularly the power of granting rights of way,
are powers which can only be exercised ' for the purposes
aforesaid,' that is, for the purpose of getting the excepted
trees, mines, and minerals" (/).
In the case of Richards v. Richards re Glamorganshire
Canal Act (g) it was decided that where the proprietor of
a mineral district had power to make roads and railroads
over land of other persons from his mines to a canal, he
was not restricted to the shortest way, but might adopt any
more circuitous route which he found more expedient, pro-
vided he did not wander over the estate in an unreasonable
manner.
Ways of necessity arise whenever the owner of two Ways of
estates conveys one of those estates to another person, the neo
estate so conveyed being then either entirely surrounded by
the estate remaining in the possession of the grantor, or partly
by his land and partly by that of strangers, provided always
that there is no access to the land so conveyed ; in such a
case the grantee is entitled to a right of way over the land
so remaining in the hands of the grantor in order that he
may have access to, and be enabled to enjoy the estate so
conveyed to him (7i). Where several conveyances are made
(/) 2 Q.B. 968; see also Wallis v. GO; Morris v. Edgington, 3 Taunt.
Harrison, 11 L.J. Ex. 440 ; Arkwright 24 ; Pinnington v. Galland, 9 Ex. 1 ;
v. Cell, 5 M. & W. 203; Midgley v. Proctor v. Hodgson, 10 Exch. 824;
Richardson, 14 M. & W. 608 ; New- White . Leeson, 5 H. & N. 53 ;
march v. Brandling, 3 Swanat. 99. Wissler v. Hershey, 23 Penn. St. Rep.
(g) John. 255. 333 ; Ogden v. Grove, 38 Penn. St. Rep.
(ft) Clarke v. Rugge, 2 Roll. Abr. 487.
2L
514 EASEMENTS AND SERVITUDES. [CHAP. xvii.
at the same or at different times of portions of the same es-
tate, the priority or order of the conveyance -will not de-
stroy the right of any of the grantees; and if no way
existed before the conveyance, the owner of the estate over
which the right is to be exercised may designate the way in
a reasonable manner and at the least inconvenience to him-
self (i). When the way is once selected it cannot be
altered except by consent of all the parties entitled to use
it (y). The right to a way of necessity is limited in re-
spect to its duration ; if, therefore, an access to the estate
shall at any time be acquired by the owner thereof, either
by the purchase of other land or by the making of a public
road, or in any other manner which affords such access, the
way of necessity ceases, in other words, the way of necessity
over the estate of the original grantor ceases so soon as the
necessity ceases (&).
(f) Pinnington v. Galland, 9 Ex. 1 ; (&) Morris v. Edgington, and White
Russell v. Jackson, 2 Pick. (U.S.), 574; v. Leeson, supra ; Mold v. Wheatcroft,
Smiles v. Hastings, 24 Barb. (U.S.),44. 29 L.J. Cb. 15.
(/) Morris v. Edgington, 3 Taunt.
24; Holmes v. Seely, 19 Wend. (U.S.),
507.
CHAP, xvm.] POOR'S RATE. 515
CHAPTER XVin.
RATING OF MINES, MINERALS, AND QUARRIES, AND OF
WAYS AND OTHER EASEMENTS.
POOR'S RATE
HIGHWAY RATE
COUNTY RATE
CHURCH RATES
TITHES.
POOR'S RATE.
Poor Law Act, 43 Eliz. c. 2 no mine but a coal mine rateable. When iron is
mixed with coal exclusive occupancy Quarries of all minerals are rate-
able. Tolls and dues when payable in kind, are rateable chargeable to oc-
cupier of land Justices' jurisdiction but tolls or dues reserved in specie, are not
rateable. Ores in a partially smelted state. Tolls or dues payable by custom
residence not necessary. The principle of rating coal-mines result of decisions
when rateable to two parishes. Commons and Waste lands principle of
rating mines in enclosed lands. Rights of Way, Way-leaves, and Easements,
in England, not rateable. Rating of Mines, Ways, and Easements, in Ireland.
THE Poor Law Act, 43 Eliz. c. 2, s. 1, imposes a tax Poor's rate,
upon " every inhabitant, parson, vicar, and other, and of
every occupier of lands, houses, tithes impropriate, propria-
tions of tithes, coal mines, or saleable underwood," within
the parish, "for and towards the necessary relief of the
ame, impotent, old, blind, and such other being poor and
not able to work," within the said parish. Under and by
virtue of this statute it was decided that no mine except a
2L2
516 EATING OF MINING PROPERTY. [CHAP. xvni.
Coal mines coal mine was rateable to the poor (a) ; although, as Lord
rateable 6 Ellenborougli observed, the word " coal mine" was pro-
bably mentioned in the statute only by way of example, and
not of exclusion (Z), and notwithstanding a more recent opi-
nion of Chief Justice Tindal that if the statute was now to be
reviewed it would probably be held not to exclude any
mine (c). But whether by accident or intention, the law
remains the same to the present time, viz. that no mine
except a coal mine is liable to the poor's rate. When a
mine is not liable to be rated, the proprietors will not be
liable to a rate for engines, machinery, buildings, or any
other erections, erected and used solely for the purpose of
effectually working the mines, either on or beneath the sur-
face, or for drawing water from off the mine, such erec-
tions being regarded as part and parcel of the mine; but
all smelting mills, furnaces, machinery, and buildings neces-
sary for smelting the tin are not regarded as part and parcel
of the mine, and are therefore rateable (d).
When iron It frequently happens that iron is intermixed with coal,
with*oal an ^ i* 1 sucn cases it was formerly doubted whether the
entire productions of the mine, including the iron as well
as the coal, was not rateable ; and in the case of Rex v.
Cunningham and others (e), where the lessees and occupiers
of a large tract of land and of mines which had been dis-
covered under the said land, containing iron and coal inte-
mixed, were rated to the poor in one sum for the farm and
land, and in another sum for the iron and coal mines,
although sufficient coal only was raised for the purpose of
manufacturing the iron, and not for sale ; but on appeal the
rate was disallowed, the court holding that the lessees and oc-
cupiers were not rateable for the iron, but only for the coal,
and that inasmuch as they had been rated for both the
iron and coal in one entire sum, the rate being bad as to
one, was bad as to both, for the court had no means of
(a) Lead Company v. Richardson, 3 (7>) R. v. Baptist Mill Co. 1 M.
Burr. 13-11 ; 1 W. Black, 389 ; At- & S. 617.
kins v. Davis, Cald. 318, 325; R. v. (c) Crease v. Sawle, 11 L.J. M.C.
Cunningham, 5 East, 478 ; R. v. Sed- 62.
geley, 2 B. & Ad. 65 ; R. v. Brettell, (d) R. v. Bilston, 5 B. & C. 851.
3 B. & Ad. 424 ; R. v. Dunsford, 2 Ad. (e) 5 East, 478.
& Ell. 568 ; 4 Nev. & Man. 349.
CHAP, xvin.] POOR'S RATE. 517
ascertaining how much was applicable to the one and how
much to the other.
In the case of Rex v. Trent and Mersey Navigation Exclusive
Company (/), a distinction is drawn between a privilege to
obtain minerals, and the sole and exclusive occupancy of a
mine. In the former instance the company, which had
taken materials from a quarry, for their own use, for a
period of twenty years, under a power reserved to them,
were held not to be rateable, on the ground that the right
was a mere privilege, not exclusive, and which'might there-
fore be granted by the owner to any other person.
But although mines, except coal mines, are exempt from Quarries of
poor rates under and by virtue of the statute of Elizabeth,
minerals are not exempted, and consequently if minerals able -
be raised in any other way than by means of a mine, they
will be liable to the rate. Minerals frequently are raised
from quarries, quarries of minerals are therefore rateable ;
and as the question has been often raised, whether the
working for ores, or the raising of metallic, and even non-
metallic, substances, amounts to a mine or a quarry, we have
already attempted to draw a distinction between the two (g).
In all cases of rating, the justices of the peace are to de- Justices'
termine whether the workings amount to a mine, and must action.
not leave that question for the decision of the court
above (h).
Tolls or dues reserved in kind in respect of all mines are Tolls aml
also rateable, on the ground that the reservation is a portion Mrred ia
of the land itself, and that the persons entitled to them are kin(I an '
the actual occupiers of the land (i). From the time of the
decision in Rowls v. Gells (j) to the present, the law has
undergone but few changes in this respect, and the judg-
ment of Mr. Justice Le Blanc, in the case of Rex v. Blanc, J.
Baptist Mill Company, contains a clear exposition of
the law. He says (k) : " The question has always been
(/) 4 B. & C. 57. B. & Aid. 693 ; Minutes of Evidence
Cy) Ante, p. 143. taken before Select Committee of
(li) R. v. Dunsford, 2 Ad. & Ell. House of Commons in 1856, p. 321.
588. (j) Cowp. 451.
(i) Rex i. Baptist Mill Co. 1 M. (k) 1 M. & S. CIS.
& S. G17 ; R. v. St. Austell parish, 5
518 RATING OF MINING PROPERTY. [CHAP. xvm.
whether the party rated could or could not be brought
within the description of the statute of Elizabeth. The
statute describes this class of persons as occupiers of lands,
houses, tithes, coal mines, or saleable underwood. The
construction that has been put upon the statute has been
this, that because the Legislature expressed coal mines, it
did not mean to include any other mines ; and the reason
given for such a distinction was, that other mines were
considered as matters of hazard at that time, and therefore
it was concluded that the Legislature did not mean to
subject the occupier of such a species of property to
taxation. It remains, then, to be seen what construction
the decisions have put on the words ( occupier of land,' in
order to determine whether a party who is in the receipt of
a considerable revenue, which is not subject to risk, and
arises out of land, may not be comprehended under the
term occupier of land. In determining this, we are not
tied down to follow the strict definition of land through all
its consequences and in every possible view in which it may
be considered, and to decide whether this would enable the
party to maintain trespass (quare clausum fregit), or
whether it corresponds in every other incident with the
definition of land. In Rowls v. Gells (Z) it was considered
that the lord who received a stipulated benefit from the
profits or value of mines, in case they did prove of
value, was an occupier jointly with the adventurers, and
not excusable, upon the same ground that excused the
adventurers, namely, that the adventure was uncertain, or
might prove unsuccessful; but the lord was held for the
purpose of being rated, as an occupier. Here the party shares
with the adventurer without incurring any risk, and Rowls
Chargeable v. Gells determined such person to be chargeable as oc-
of land?" 61 cu P^ er ' What reason is there for saying that Rowls v.
Gells was an erroneous decision? It is not necessary in
construing the words of this statute, which was passed
for a particular purpose, to hold that the word ' lands' should
satisfy every possible view under which land may be consi-
dered. Here it is enough that the party is an occupier of
(?) Cowp. 451.
CHAP, xvm.] POOR'S EATE. 519
land for the purpose of being rated to the relief of the poor.
Where a person receives, without risk, part of the produce
extracted from the bowels of the earth, he is an occupier of
land ; but where he merely receives a rent, or money pay-
ment, there the Court has held, as in Rex v. Bishop of
Rochester (m), that he is not an occupier. It is said,
however, that we ought to overturn Rowls v. Gells and
Rex v. St. Agnes (?z), unless we can distinguish them from
this case ; but I see no reason why the Court should hold
those cases to have been improperly determined, especially
where they have laid down a rule of construction which
has prevailed for nearly forty years, and has been the guide
of the courts below. As to distinguishing them, I cannot
feel the weight of the observations which have been made
with that view. In Rowls v. Gells and Rex v. St. Agnes
the rate was confined to the person in respect of the toll-
dish of lead and tin raised ; here the owner of the land was
entitled to a certain portion of the ore when raised, which
he lets, or allows persons to stand in his place as to that
share; and we will not inquire whether this was a legal
demise, for he authorizes them to receive, and they do
receive it. They stand, therefore, in the situation of the
lessee in Rowls v. Gells and the person entitled in Rex v.
St. Agnes. But subsequent cases have been cited, in
which it is supposed that the authority of Rowls v. Gells
and Rex v. St. Agnes has been disturbed ; which supposi-
tion is only raised, by laying hold of particular expressions
of the Court, to be found there. The cases of Williams v.
Jones (o) and Rex v. Nicholson (p) are totally different ; for
those were the profits of a ferry, arising out of a right to
convey passengers over a river ; it was impossible in those
cases to say that the persons were occupiers of anything
but the boat and tackle in wliich the passengers were con-
veyed, in the same manner as a stage-coachman is the
owner of his coach; it was therefore impossible to make
the doctrine of Rowls v. Gells bear on those cases. View-
ing all the cases on the subject, and the principle upon
(TO) 12 East, 353. (e>) 12 East, 346.
(n) 3 T.K. 480. (/;) 12 East > 88 -
520 RATING OF MINING PROPERTY. [CHAP. xvm.
which Howls v. Gells was decided, and likewise the public
convenience, as regards this species of property, and not
seeing that the original construction on the words, ( occupier
of land,' may not comprehend a person so far an occupier
as to receive a portion of the land discharged of any risk, I
cannot say that this company is not rateable."
Judgment In the case of Crease v. Sawle (5-), Tindal, C.J., says :
Timiai " ^ r ^ ee ^ that we are equally bound by the same autho-
rity ; and, important as it is, in all branches of the law, to
abide by previous decisions, in none is it more important
than in this. The rules which apply to the rateability of
property are every where daily acted upon in the manage-
ment of parochial affairs, and materially affect the value
of estates. It would be extremely inconvenient, and in-
deed mischievous, to overrule a class of cases which have
been much discussed and sanctioned by many eminent
judges, and which are now constantly acted upon, because
we might not feel perfectly satisfied with the reasons
assigned for their decision. And, if we could permit our-
selves to disregard these authorities on that account, we
might feel disposed, on the same ground, to reject others,
which have put a construction on the statute of 43 Eliz.
c. 2, which we should be by 110 means sure that it ought to
bear, if we were now for the first time called upon to ex-
plain the meaning of its language ; which would seem to
have been framed with a view to render rateable all occu-
piers of every description of real estate; and it might be
very questionable whether occupiers of mines of any de-
scription were exempt. But we think it wiser to abstain
from the discussion of such questions, and to abide by the
construction which numerous decisions have given to the
words of the statute, and which has been for a long time
constantly acted upon ; and, according to these decisions,
whilst we must hold that the occupier of every mine,
except coal mines, is exempt, we feel ourselves equally
bound to hold, that he who receives a portion of the ore in
an unmanufactured state, is liable to be rated."
(?) 2 Q.B. 862.
CHAP, xvm.] POOR'S RATE. 521
But tolls or dues reserved in money, are, on the authority Tolls or
of the before-mentioned cases, not rateable to the poor, dues ?:
i , ' served in
because such a reservation is a certain fixed payment or specie, not
rent reserved out of the produce of the land not amounting rateablc '
to a reservation or an occupancy of the land itself. On
this subject, Taunton, J., in the case of Rex v. Tremayne,
is reported to have said (r) : " The distinction is very
subtle, but the cases may, perhaps, be reconciled by distin-
guishing between a reservation of a rent and a reservation
of part of the soil ; in the latter case, the lessor has been
considered as occupying that part of the soil which he has
so reserved ; here, there is a pecuniary rent reserved and no
reservation of any part of the soil."
A reservation of a portion of the ore, in a smelted state, Ores in a
is in the nature of a money reservation, and therefore not g t "^ e ted
rateable ; if in a state only fit to be smelted, it is like a re-
version of part of the soil, and consequently rateable (s).
Tolls or dues payable by custom, as in the case of tin- Custom,
bounding, are subject to the rate ; and residence is not Residence.
necessary to create the liability to pay the rate, whether the
reservation is by custom or by deed (t).
The principle on which coal mines are rated or exempted The prin-
froin rates is contained in the Parochial Assessment Act, ^tin^
6 & 7 Will. IV. c. 96. It is there provided that no rate Coal Mine?.
for the relief of the poor in England and Wales shall be
allowed by any justices, or be of any force, which shall not
be made upon an estimate of the net annual value of the
several hereditaments rated ; that is to say, of the rent at
which the same might reasonably be expected to let from year
to year, free of all usual tenants' rates and taxes, and tithe
commutation rent-charge, if any, and deducting therefrom
the probable average animal cost of the repairs, insurance,
and other expenses, if any, necessary to maintain the pro-
perty in a state to command such rent ; the Act also pro-
vides that nothing therein contained is to be construed to
(r) 4 B. & Ad. 170. 12 Ad. & Ell. 810 ; s.c. 10 L.J. M.C.
0) R. v. Earl of Pomfret, 5 M. 6k 14.
S. 139 ; Crease v. Sawle, 2 Q.B. 862 ; (<) Crease v. Sawle, suprh ; Rex v.
R. v. Tremayne, suprk ; Ifcg. v. Todd, Paynter, 7 Q.B. 255.
522 RATING OF MINING PROPERTY. [CHAP. xvm.
alter or affect the principles, or different relative liabilities,
if any, according to which different kinds of hereditaments
were then by law rateable. Rates by the Act are required
to be made in a given form, and owners of tenements may
compound for the rates in the same manner as before the
passing of the Act. The Poor Law Commissioners are
directed to ascertain the proper rateable value, and justices
of the peace may hear appeals against any rate.
Result of rpj ie resu i t o f fa e d ec i s i ons o f the courts, both before and
decisions. . /! / i
since the passing 01 the Act, may be said to consist in the
following propositions : 1st. That a coal mine is liable to be
rated, although no profit may have been derived from the
mine. The occupancy of the mine makes the property rate-
able (u). 2nd. That a coal mine must be rated as soon as it
is set at work and produces coal, and only during the time
that it is productive. Lord Ellenborough, C.J., illustrated
this principle in the case of Rex v. Bedworth (v), wherein
his lordship said : " The mine itself being exhausted the
subject-matter of profit is gone, and that being rateable
only for the concurrent annual value during the period for
which the rate is made, if the mine occupied no longer
affords any such concurrent annual value, the subject
matter of the rating is gone." 3rd. That the criterion of
value does not necessarily depend upon the actual amount
of rent paid to the landlord, but on the sum for which the
land or property would let (w) ; consequently the improved
annual value of a mine will be the subject of a rate (x).
All fixed machinery, whether underground or on the sur-
face, must be included in the valuation, without consider-
ing whether the machinery be real or personal property, so
as to be liable to distress or seizure under legal process, or
whether it would descend to the heir or executor, or belong
at the expiration of the lease to the landlord or tenant (y).
Where a poor's rate was made upon two-thirds of the net
rent of land and one-half of the net rent of a colliery,
() R. v. Parrot, 5 T.R. 593. (*) R. v. Ld. GranviUe, 9 B. & C.
(v) 8 East, 387. 188.
(w) R. v. Attwood, 6 B. & C. 277 ; (y) Reg. v. Guest, 7 Ad. & Ell.
R. v. Trustees of D. of Bridgwater, 9 951.
B. & C. 68.
CHAP, xviii.] POOR'S RATE. 523
allowance being made for repairs, it was held that this was
a fair criterion of the annual value (z). The condition of
the mine, its prospects, and other similar circumstances, are
often ingredients in the calculation. A fictitious value
which a mine acquires from peculiar circumstances must
not be mistaken for the probable amount of rent for which
the mine would let to a bona fide company (a). Where a
royalty was payable for bricks, together with a fixed
annual charge for the land made use of, it was held, that
the royalty and charge might properly be considered as the
rent ; that the payment in respect of the brick-earth was
not the less a rent because the subject-matter of the renting
was in the course of being wholly consumed; that in the
absence of proof to the contrary, the number of bricks
which the " stools" could make are the number which may
be presumed to have been actually made within a given
year ; and that no deduction was to be made for the breeze,
ashes, or any other materials used in making the bricks, it
being presumable that these were allowed for in fixing the
royalty (Z>).
Sometimes it happens that coals are taken from lands When rate-
situate in two different parishes, and brought to surface by
means of a shaft situate in one of the parishes only. In
such a case it has been held that the coal mine is liable to be
rated to both parishes, and that the shafts and machinery
are rateable to the parish in which they are situate (c).
By the 17 Geo. II. c. 37, it is provided that if any dis- Commons
pute or uncertainty shall arise or exist as to which parish f^d^* 8
waste lands which have been or shall be improved or
drained shall lie or ought to be rated, the occupier of such
lands, tenements, tithes, and mines, shall be rated to the
relief of the poor and to all other parochial rates to the
parish which lies nearest to such lands ; and if any dispute
arises thereon the justices in general Quarter Sessions are
to determine the same. Where lands were enclosed under How mines
and by virtue of an Act of Parliament which declared, that rated<
all the allotments to be set to the several persons having
(z) R. v. Tomlinson, 9 B. & C. 163. (6) R. v. Westbrook& R. v. Everist,
(a) R. v. Birmingham Gas Co. 1 10 Q.B. 178 ; s.c. 16 L.J. M.C. 87.
B. & C. 506. (c) R. v. Foleshill, 2 A. & E. 693.
524 EATING OF MINING PROPERTY. [CHAP. xvnr.
the right of common, should be deemed to be situate within
the same parish respectively in which the ancient lands
were, it was held that the Act only affected those portions
of the soil which had been allotted to the commoners, and
not the coal mines which were situate under the allotments,
and consequently that the coal mines were rateable to the
relief of the poor of the parish in which the mines were
actually situate, notwithstanding that the allotments were
rateable elsewhere (d).
Rights of No person can be rated in respect of a right of w^ay, of
and 'ease-** way-leaves, waggon-way, or similar incorporeal rights, be-
ments, not cause they are in their nature incapable of occupation ;
but a rate may be made for such rights in respect of land
in the actual and exclusive occupation of such persons in
or over which such rights are exercised, and if, therefore,
the same person is in possession of the land and of the
easement, he will be subject to the rate () See Sharp v. Hainsworth, 32
to one justice. L.J. M.C. 33.
CHAP, xix.] MISDEMEANORS. 537
tract of service should be for any specified time ; it is only
necessary that the relation of master and servant should
exist between the parties (q).
There is no right of appeal against any order of justices Appeal,
for payment of wages under the aforesaid Act of 4 Geo.
IV. c. 34, and the words in the 5th section of that Act, viz.
" that every order or determination of justices under the
Act should be final and conclusive,"* seem to take away in-
directly any right of appeal which the master might pre-
viously have had against any decision under and by virtue
of the aforesaid Act of 20 Geo. II. c. 19 (?).
By the 20 Geo. II. c. 19, s. 2, the justices are empowered Misde-
to hear all complaints of misconduct made by a master j^""/ 3 by
against any miner, collier, or other labourer (s), and to
punish the offender, either by committing him to the
House of Correction (t), for any reasonable time not
exceeding one calendar month, or by abating some part of
his wages, or discharging him from his employment ; and
in the case of an apprentice, by committing him to- prison Appmi-
for any time not exceeding one calendar month ; and by tlces>
section 1 of the 4 Geo. IV. c. 34, the complaint may be
made by the steward or agent of the master.
When a contract is entered into by any miner, collier, or Contracts,
other labourer, for a certain fixed time, if the person so
contracting shall absent himself before the completion of
such contract, or be guilty of. any other misdemeanor, a
justice may, under the 4th section 6 Geo. III. c. 25, upon
complaint made by the master, or his steward or agent,
hear such complaint, and commit the offender to prison for
any period not exceeding three calendar months. By
section 3 of 4 Geo. IV. c. 34, the justices' power of
enforcing contracts extends to contracts entered into in
writing, even if the servant have not commenced the ser-
vice, and to oral as well as written contracts commenced
but not completed (M), but not to contracts entered into with
O/) Willett v. Boole, 1 Cox MHR. (<) Wood v. Fenwick, 10 M. & W.
ca. 195; Taylor v. Porter, 31 L.J. l'J5.
M.C. 111. () Askew's case, 2 L. M. & P. 429 ;
(r) Queen v. Bedwell, 4 Ell. & B. 213. Ashmore v. Horton, 29 L.J. M.C. 13 ;
(*) See Finley r. Jowle, 1 2 East, 248. Lawrence v. Todd, 2 Cox Mag. ca. 322.
538 REGULATION OF MINES. [CHAP. xix.
infants, if to their disadvantage (v). In addition to the
punishment of imprisonment, the justices may now abate
the wages of or discharge the labourer from his employ-
ment. The summary jurisdiction given to justices extends
only to cases where the relationship of master and servant
exists in the ordinary acceptation of those terms ; if, there-
fore, the master contracts with his servant to do a certain
work for a certain price, the relationship of master and
servant is destroyed, and the statute does not apply (w),
unless the contract requires the servant personally to as-
sist in the work (x). The Act applies to persons engaged in
manual labour, but not to stewards, bailiffs, or agents
appointed to overlook those so employed (y) ; and if a
servant leaves his master under a bona fide belief that he
had a right to do so, or for other good cause, he cannot be
convicted under the statutes (2). A commitment of a
servant under 4 Geo. IV. must show on the face of the
conviction that the offence for which the servant was con-
victed fell within the statute (a), and the conviction and
warrant may be in one or separate instruments (6).
Misde- By the 6 Geo. III. c. 25 (c), when apprentices absent
themselves from their master's services before the term of
their apprenticeship shall have expired, a justice is em-
powered to oblige any such absenting apprentice, when-
ever he shall be found, to serve for such a period of time
as he shall have absented himself, unless in the mean while
he shall have made satisfaction to his master ; or in default
thereof, to commit such apprentice to prison. But the said Act
is not to extend to apprentices paying their masters a fee of
10, or where seven years shall have expired next after the
end of the term for which such apprentice contracted to
serve. Gray v. Cookson (d) decided that the 4th section of
20 Geo. II. c. 19 is not repealed by the 1st section of
(j;) Reg. v. Lord, 12 Q.B. 757. (y) Davies v. Baron Berick, 30 L .J.
(w) Bran well . Penneck, 7 B. & M.C. 84.
C. 536 ; Lancaster v. Greaves, 9 B. & (z) Rider v. "Wood, 29 L.J. M.C. 1 ;
C. 628 ; Sharman v. Sanders, 13 C.B. Reg. v. Youle, 1 Cox Mag. ca. 355.
166 ; Collier's case, 3 Ell. & B. 607 ; (a) Geswood's case, 2 Ell. & B. 952 ;
Taylor v. Porter, 31 L.J. M.C. 111. (6) Bailey's case, 3 Ell. & B. 607.
() Bowers v. Lovekin, 25 L.J. (c) Sees. 1, 4, 5, 6.
Q.B. 371; Willett v. Boote, 1 Cox (d) 16 East, p. 13 ; Reg. v. Youle,
Mag. ca. 195. supra.
CHAP, xix.] MISDEMEANORS. 539
6 Geo. III. c. 25, but that the remedy given to the master
by the latter statute is cumulative to the punishment
inflicted on the apprentice by the former statute.
It is declared by the 7th section of 20 Geo. II. c. 19, Stannaries
that that Act shall not apply to the Stannaries of Devon ^[ )evon
and Cornwall, but that section is afterwards repealed by Cornwall,
section 2 of 27 Geo. II. c. 6, which extends the provisions
of the first-mentioned statute to all tinners and miners who
are or should be employed in the said Stannaries, but the
subsequent Act of 6 Geo. III. c. 25 does not apply to the
Stannaries.
By the 5th section of the 20 Geo. II. c. 19, power of Appeal,
appeal to the Quarter Sessions is given against any deter-
mination, order, or warrant of any justice under that Act,
save and except an order of commitment. There is like-
wise a power of appeal reserved under the 6 Geo. III.
c. 25, s. 5, against any order, determination, or warrant of
any justice under that Act, except on an order of commit-
ment, upon such party complaining giving six days' notice
of such appeal, and entering into recognizances as directed
by the Act. But such appeal was held, in Eex v. Stafford-
shire Justices (e)j not to lie against an order of the justices
containing a conviction and commitment, such conviction
and commitment being considered one and the same thing,
and therefore to fall within the above exception.
By the 1st section of 39 & 40 Geo. III. c. 77, provision Mbde-
is made for the punishment of any person who shall pull coaUnd '"
down or fill up, or attempt to pull down or fill up any shaft, iron mines.
or damage any road leading to any coal or iron work, or
who shall wilfully dig, take, or carry away, or attempt to
dig, take, or carry away, any coal, culm, or other mineral
from any waste or enclosed lands. Colliers and miners dis-
regarding their agreements with their employers, entered
into by writing, or for wilfully working coal and iron-
stone in a manner different to what they had stipulated, or
otherwise abandoning the agreement they had entered into,
are liable to a fine of 40s., or in case of non-payment im-
prisonment for six months (/). Justices are also em-
(e) 12 East, 572; Bailey'a caw, 3 Ell. & B. 607. (/) Sec. 6.
510 REGULATION OF MINES. [CHAP. xix.
powered by the 4th section of the said Act to punish any
miner, or collier, or other person, who shall be guilty
of the offence of walling or stacking coals, or iron-stone,
or iron ore, with intent to defraud their employers or
fellow- workmen (g) ; and other offences are provided for
by the said Act, such as the carrying away of materials be-
longing to any manufacturer or coal-dealer whatsoever, or
for damaging any such materials not exceeding the value of
5s., with power for any justice to deal with such offences
in a summary manner. An appeal is given by the said
statute to the Quarter Sessions, but proceedings are not to
be quashed for want of form or removed into any court of
record. The Act is not to extend to any damage done
underground by the owners of adjoining mines, or per-
sons duly authorized by them to work in such adjoining
mine.
Complaints The justices are also empowered by section 3 of 20
against Q eo> jj c> ]_g ? t hear complaints made by any apprentice
against any master for refusal of necessary provisions,
cruelty, or other ill-treatment, and if such complaint be
proved, to discharge such apprentice from his apprentice-
ship. The Act only applies where the sum paid to the
master as a premium did not exceed 5, extended by
33 Geo. III. c. 55, to 10, and by the 1st section of
Geo. IV. c. 29, to any sum not exceeding 25. The 2nd
section of the Act also gives justices power to hear all
complaints by any servant, miner, collier, or other labourer
against his master for refusal of necessary provisions,
cruelty, or other ill-treatment, and such justice if satisfied
of such complaint, is to discharge such employed person
from his master's service. An appeal lies to the General
Quarter Sessions (7i) against any order of a justice under
either of the aforesaid Acts. The misconduct of a master
towards his apprentice or servant is now, in certain cases,
made a criminal offence (i).
By 6 Geo. IV. c. 129, s. 3, it is provided that no
person shall by violence to the person or property, or by
O) Reg. r. Webb, 1 Moo. C.C. 431. (0 24 & 25 Vic. c. 100, s. 26, and
(A) Sec. 5. post, chap, xxiii.
CHAP, xix.] COMBINATIONS. 5il
threats (j) or intimidation or by molesting, or in any Combina-
way obstructing another, force, or endeavour to force, any Rasters
journeyman, manufacturer, workman, or other person hired antl work-
er employed in any trade or business, to depart from his m
hiring, employment, or work ; or prevent or endeavour to
prevent any such person, not being hired or employed,
from hiring himself to, or from accepting work or employ-
ment, from any person or persons. The Act does not
apply to meetings held either by masters or workmen, for
the sole purpose of consulting upon and determining the
rate of wages or prices which the persons present at such
meeting shall require for their work, nor to the payment of
their workmen, nor the hours of working and employment,
nor to any agreement, verbal or written, entered into among
themselves for such objects and purposes (&) ; but the work-
men must not meet and combine for the purpose of dic-
tating to their masters whom they shall employ, as a com-
bination for such a purpose is indictable as a conspiracy (I).
Penalties are imposed upon offenders ; justices of the
peace are to hear, complaints, and an appeal lies from their
decision.
In the case of the Queen v. Rowlands (m), Mr. Justice
Pattison, in passing sentence on some workmen who had
been convicted upon an indictment under the 6 Geo. IV.
cap. 129, said: " The object of the Legislature was that Masters
all masters and workmen should be left free in the con- labourers
duct of their business. The masters Avere at liberty to must , be
. ... . , left freo.
give what rate of wages they liked, and to agree among
themselves what rate of wages they would pay. In like
manner, the workmen were at liberty to agree among
themselves for what wages they would work, and were not
restricted in so doing by the circumstances that they were
in the employ of one or other of the masters. The inten-
tion of the Legislature was to make them quite free."
In Walsby v. Autrey (n), Cockburn, C. J., said: " I am
decidedly of opinion that every workman, so long as he is
(/) Reg. P.Rowlands, 17 Q.B. 671; (7) R. v. Bykcrdike, 1 Mood. &
Ex. parte Perham, 29 L.J. M.C. Rob. 179.
33; O'Neill v. Longman, 2 Cox Mag. (m) 21 L.J. M.C. 81.
ca. 343. (n) 30 L.J. M.C. 122.
(k) Sees. 4, 5.
542 REGULATION OF MINES. [CHAP. xix.
not bound by any contract, is entitled when in the service
of an employer to the free and unfettered exercise of his
own discretion, whether he will remain in that service in
conjunction with any other workmen with whom he may
not choose to serve ; and, more than this, if several work-
men consider others obnoxious, personally, or on account
of character or conduct, they have a perfect right to the
exercise of their discretion, and to put the alternative to
the employer of either retaining their services by discharg-
ing the obnoxious persons, or of retaining the latter, and
thus losing the others' services. And the master has a
right to the opportunity of exercising his discretion in the
matter. But if the men go further, and do not fairly give
the master the alternative, but seek to coerce him by
threats of doing something that is likely to operate to his
injury, into the discharge of the obnoxious persons, then I
think the case properly comes within the operation of the
3rd section of the Act."
22 Vic. c. Bv the 22 Vic. c. 34, it is enacted, " That no workmen
34
or other person, whether actually in employment or riot,
shall by reason merely of his entering into an agreement
with any workman or workmen, or other person or persons,
for the purpose of fixing or endeavouring to fix the rate of
wages or remuneration at which they or any of them shall
work, or by reason merely of his endeavouring peaceably
and in a reasonable manner, and without threat or intimi-
dation, direct or indirect, to persuade others to cease or
abstain from work, in order to obtain the rate of wages, or
the altered hours of labour so fixed or agreed upon, or to
be agreed upon, shall be deemed or taken to be guilty
of molestation or obstruction within the meaning of 6
Geo. IV. c. 129, and shall not therefore be subject or
liable to any prosecution or indictment for conspiracy:
Provided always, that nothing therein contained shall
authorize any workman to break or depart from any
contract, or authorize any attempt to induce any work-
24 & 25 man to break or depart from any contract." Whoever in
Vic. c. o. p ursuance o f anv unlawful combination or conspiracy to
raise the rate of wages, shall assault any person, is guilty
CHAP, xix.] INSPECTION OF COAL MINES. 513
of a misdemeanor, and liable to imprisonment with or
without hard labour (o). A bond entered into by em- Bonds to
ployers to counteract combination of workmen is illegal. cou t . eract
. . o " coniuinji-
if it can be shown, that the bond operates in restraint of tions
trade and is not strictly confined to the protection of legal llIegaL
rights (p).
In addition to the foregoing provisions, the Legislature Inspection
has passed several Acts for the inspection and regulation of ^onstone 1 " 1
Coal and Ironstone mines situate in Great Britain, and mines,
additional powers are given by these Acts, to investigate,
the mode of ventilation () Hilton v. Eckersley, 25 L.J. (*) 23 & 24 Vic. c. 151, s. 6.
Q.B. 199. (0 Ireland is excepted by 30 sec.
(7) Knowles v. Dickinson, C Jur. of Act.
N.S. C78.
REGULATION OF COAL MINES.
[CHAP. xix.
Appoint-
ment of
inspectors.
Duties of
inspectors.
thereto respectively. The term " owner," is to mean the
immediate proprietor, lessee, or occupier of a coal mine or
colliery, or ironstone mine, or of any part thereof. The
term " agent," is to mean any person having on behalf of
the owner the care or direction of the mine. The term " in-
spector," is to mean an inspector or inspectors appointed or
continued under the Act. And the term "district," that
portion of Great Britain assigned, or which shall be
assigned, to any one of such inspectors. The word
" sheriff," includes " sheriff's substitute."
By section 8, Her Majesty's Secretary of State is to
appoint inspectors, and from time to time to remove such
inspectors, but no person who shall act or practise as a land
agent, or as manager, viewer, or agent, or mining engineer,
or valuer of mines, or arbitrator in any matter or dispute
arising between owners of mines, or be otherwise employed
in any mine (it) shall act as inspector.
The powers and duties of inspectors (v) enable them to
enter, inspect, and examine any mine, and the works and
machinery belonging thereto at all reasonable times, but so
as not to impede or obstruct the working of the mine ; and
to inquire into the condition and ventilation thereof, the
mode of lighting and using the lights, and into all matters
connected with the safety of the persons employed, and
whether the provisions of the Act are complied with ; and
the owner of every mine is required to furnish the means
necessary for such entry, inspection, examination, and
inquiry. Notice of anything dangerous, with the par-
ticulars thereof, although not provided for by the Act or
the general or special rules, is to be given by the inspector
to the owner or agent, and to one of Her Majesty's principal
Secretaries of State (w) ; and if the owner or agent object
to remedy the danger or defect, he may, within twenty
days after receipt of such notice, forward to the said
inspector and to the Secretory of State a statement con-
taining the groimds of such objection, together with a
nomination of five or more competent persons who shall
() Sec. 9.
() Sec. 1C.
(w) Sec. 17.
CHAP, xix.] INSPECTION OF COAL MINES. 545
not be interested in or employed in such mine, of whom the
Secretary of State shall appoint one or more, to be an
arbitrator or arbitrators, to determine the matters in
difference.
By section 18, the owner or agent is required to produce Ma P s and
true and complete maps or plans of the working of the inspectors,
mines for the inspector, and if the owners do not produce
true and correct maps or plans, the inspector may require
them to be made at the expense of the owner on the scale
mentioned in the Act and in the form therein directed, but
the inspector is not allowed to make a copy of any part of
the said map or plan.
By section 23, every person who wilfully obstructs any Penalties
. . .-, ;. r r , . -, . j J forob-
inspector in the execution of his duty, and every owner or 8 tmcting
agent of a mine who refuses or neglects to produce the inspectors,
required map or plan to such inspector, or to furnish him
with the means necessary for making any entry, inspection,
examination, or inquiry, under the Act, or who neglects
or wilfully violates any provisions of the Act, for the
neglect or violation of which no other penalty is imposed,
is liable to a penalty not exceeding 10 for eveiy such
offence, to be recovered in a summary way before two
justices of the peace, or in Scotland before the sheriff,
within three months after the commission of the offence (#) ;
and when recovered the penalties may be paid to the person
who has sustained injury, or to the family or relatives of
any person whose death may have been occasioned by any
accident or offence under the Act, not being a person who
occasioned or contributed to the accident, and save, as
aforesaid, all penalties recovered under the Act, are to be
paid into Her Majesty's Exchequer.
Every inspector is obliged by the 27th section of the
Act, on or before the 1st of March in every year, to make
a separate and distinct report, in writing, of his proceedings
during the preceding year, and to transmit the same to one
of Her Majesty's principal Secretaries of State, who is to
lay a copy of such report before Parliament.
The duties of the coroner who holds any inquests on Coroner8 -
(*) Sec. 25; Reg. v. Mainwaring, 27 L.J. M.C. 278.
2N
546
REGULATION OF COAL MIKES.
[CHAP. xix.
duties.
Accidents
in mines.
deaths arising from accidents are pointed out in the statute.
He may adjourn an inquest in certain cases specified in the
Act, but before such adjournment he may receive evidence
to identify the body, and may order its interment (?/).
Owner or If the owner or agent of a mine does not comply with
their* * tne provisions of the 17th section, either by removing the
defects complained of by the inspector, or by forwarding
the grounds of his objection to the inspector, within
twenty days after being informed of such defects, or
make nomination of five competent persons to arbitrate
on the question ; a penalty of 1 per day is inflicted for
every day beyond the twenty days, and until such defects
shall have been removed ; and by the same section, where
matters in dispute have been determined by arbitration,
the owner or agent is liable to the same penalty if he
neglects to remedy any defect according to the award of
any arbitrator for every day after the receipt of a copy of
such award, and until such defects have been remedied.
By section 19, when loss of life or any personal injury
occurs to any person employed in and about a mine, by
reason of any explosion, or if loss of life, or any serious
personal injury occurs to any person so employed, by reason
of any accident within such mine or the works thereof, the
owner or agent shall, within twenty-four hours after such
accident and loss of life or personal injury, send notice
thereof to the Secretary of State, if the accident occurred
in England, or to the Lord Advocate if the accident
occurred in Scotland, and also to the inspector of the
district ; and such notices must specify the probable cause
of such accident, and may be sent through the post ; a
penalty of 20 is imposed for the omission to send such
notice (z).
By the 21st section, in cases of the abandonment or dis-
continuance of a mine, or where the working thereof is
recommenced after abandonment or discontinuance for a
period exceeding two months, or where any workings are
commenced for the purpose of opening a new mine, the
owner or agent is to give to the inspector two months'
(#) Sec. 20. (z) Underbill v. Longridge, 29 L.J. M.C. 65.
Fences to
abandoned
mines.
CHAP, xix.] GENERAL RULES. 517
notice thereof by letter through the Post-office; and
where any such mine is abandoned or the working is
discontinued, the owner shall cause the same to be, and
to be kept, securely fenced for the prevention of acci-
dents (a).
Every owner or agent of a mine is also liable to heavy Penalties,
penalties for not having proper rules established and pre-
served (&); and where no other penalty is imposed, every
such owner or agent renders himself liable to a penalty of
10 for every offence contrary to the provisions of the said
23 24 Vic. c. 151 (c).
Section 10 of 23 & 24 Vic. c. 151, provides general General
rules to be observed in every colliery, coal, or ironstone ru
mine. These are :
1. An adequate amount of ventilation (d) shall be con-
stantly produced in all coal mines or collieries and iron-
stone mines to dilute and render harmless noxious gases to
such an extent that the working places of the pits, levels,
and workings of every such colliery and mine, and the
travelling roads to and from such working places shall,
under ordinary circumstances, be in a fit state for working
and passing therein.
2. All entrances to any place not in actual course of
working and extension, and suspected to contain dangerous
gas of any kind, shall be properly fenced off so as to pre-
vent access thereto.
3. Whenever safety lamps are required to be used they
shall be first examined and securely locked by a person or
persons duly authorized for this purpose.
4. Every shaft or pit which is out of use, or used only as
an air pit, shall be securely fenced (e).
5. Eveiy working and pumping pit or shaft shall be
properly fenced, when operations shall have ceased or been
suspended.
6. Every working and pumping pit or shaft where the
natural strata, under ordinary circumstances, are not
(a) Ante, pp. 212, 265 ; rule 4, (d) Knowles v. Dickinson, 29 L.J.
below. M.C. 135.
(7;) See sec. 22. (e) Ante, pp. 212, 265.
(c) Sec. 28.
2N2
513 REGULATION OF COAL MINES. [CHAP. xix.
safe, shall be securely cased, or lined, or otherwise made
secure (/).
7. Every working pit or shaft shall be provided with
some proper means of communicating distinct and definite
signals from the bottom of the shaft to the surface, and
from the surface to the bottom of the shaft.
8. All underground self-acting and engine planes on
which persons travel, are to be provided with some proper
means of signalling between the stopping places and the
ends of the planes, and with sufficient places of refuge at
the sides of such planes at intervals of not more than twenty
yards.
9. A sufficient cover overhead shall be used, when lower-
ing or raising persons, in every working pit or shaft where
required by the inspectors.
10. No single-linked chain shall be used for lowering or
raising persons in any working pit or shaft, except the
short coupling chain attached to the cage or load.
11. Flanges or horns of sufficient length or diameter
shall be attached to the drum of every machine used for
lowering or raising persons.
12. A proper indicator to show the position of the load
in the pit or shaft, and also an adequate break, shall be
attached to every machine, worked by steam or water
power, used for lowering or raising persons.
13. Every steam boiler shall be provided with a proper
steam gauge, water gauge, and safety valve (g).
14. The fly-wheel of every engine shall be securely
fenced.
15. Sufficient bore holes shall be kept in advance, and,
if necessary, on both sides, to prevent inundations in every
working approaching a place likely to contain a dangerous
accumulation of water.
Special In addition to the general rules, special rules (Ji) are also
to be established and observed by every mine (i), but
(/) Mellors v. Shaw, 30 L.J. Q.B. (7t) Senior v. Ward, 28 L.J. Q.B.
333 139.
(g) Reg. v. Brown, 26 L.J. M.C. * (i) 23 & 24 Vic. c. 151, ss. 11, 13.
183.
CHAP, xix.] SPECIAL RULES. 519
where special rules have already been provided, they are to
remain the special rules till amended (j), and be of the
same force as if established under the Act. Directions
are given by section 13 for framing rules where no such
special rules are now in force, and which are to be prepared
and forwarded to the Secretary of State for approval with-
in three months after the working of the mine or colliery
shall be commenced or renewed. The Secretary of State
may propose alterations or the substitution of other rules,
and if the owners of the mine and the Secretary of State
do not agree as to the special rules to be adopted, arbitrators
are to be appointed ; and in case of the death, refusal, in-
capacity, or neglect of any such arbitrator to act in the
matter submitted to him, a substitute may be appointed; or
if the owner of the mine fails to comply with the provisions
of the statute, or if such owner do not within twenty days
from the day on which such alterations or additions or such
rules, by way of substitution, are proposed to him, object
to the same ; or does not, under the several circumstances
mentioned in the statute, appoint an arbitrator, and give
notice in writing of such appointment to the Inspector of
the District, the special rules framed as aforesaid added to
or modified by the Secretary of State, shall be established
as the special rules of the mine.
The rules by section 14 may be amended from time to Special and
time, and by section 15 the special as well as the general ^
rules are to be affixed in some conspicuous place at the
mine, and at the place where the workmen are paid ; and
a printed copy of such general and special rules are to
be supplied to all persons employed in and about the mine,
who shall apply for the same.
Particular attention is directed to these special and Penalties,
general rules, as a penalty of 20 is imposed on the agent
or owner of the mine by the 22nd section, in case such
rules have not been established or affixed on the mine as
aforesaid, or have not after obliteration been restored, or
in case of any wilful violation, or neglect of such rules by
the owner, agent, or viewer of the mine. And a further
(/) Sec. 12.
550 REGULATION OF COAL MINES. [CHAP. xix.
penalty of 1 per day is imposed upon the owner or agent
during the continuance of any such offence as aforesaid,
after notice from the inspector to remedy any such default
or neglect. Every person other than aforesaid, employed
in and about any mine who neglects or wilfully violates
any of the special rules, shall be liable upon a summary
conviction before two justices, to a penalty of 40s., or im-
prisonment for three months; but no justice interested
in the mine is to act in the said matter (k). And every
person (I) who pulls down, injures, or defaces any notice
affixed as required by the Act, shall be liable to a like
penalty of not exceeding 40s., to be recovered (m) in a
summary way before two justices, but within three months
after the commission of the offence ; and in order that no
person shall escape punishment, it is provided by the 23rd
section that, for every violation of any provision of the
Act where no other penalty is provided, the offender is
liable to a penalty not exceeding 10.
Certified A certified copy (n) of the special rules under the hand
of the inspector shall be evidence of such special rules and
evidence, of their being duly established, without further proof, and
such inspector is directed to certify such copy when re-
quired.
Prohibition The recent Act of 25 & 26 Vic. c. 79, has introduced
shafts 8 G new regulations respecting all coal mines and ironstone
mines mentioned in the 7th section of the 23 & 24
Vic. c. 151. The Act declares that the expression,
(l existing mine " shall mean a mine that is actually being
worked at the time of the passing of the Act ; and the
expression "new mine," a mine opened after the passing
of the Act, or an old mine the working of which is begun
afresh after the passing of the Act (o). The 3rd section
provides that after the passing of the said Act it shall
not be lawful for the owner of a new mine, and after
the first day of January, 1865, for the owner of an exist-
ing mine to employ any person in working within such
(&) Eeg. v. Brown, 26 L.J. M.C. () See. 20.
183. (p) Sec. 2.
(0 Sec. 24.
(m) Sec. 25.
CHAP, xix.] SINGLE SHAFTS. 551
mine, or to permit any person to be in such mine for the
purpose of working therein, unless there are in communi-
cation with every seam of such mine for the time being at
work at least two shafts or outlets, separated by natural
strata of not less than ten feet in breadth, by which shafts
or outlets distinct means of ingress and egress are available
to the persons employed in the mine; but it shall not be
necessary for the two shafts or outlets to belong to the
same mine, if the persons therein employed have available
means of ingress and egress by not less than two shafts or
outlets, one or more of which may belong to another mine.
This clause is not to apply to opening a new mine for the
purpose of searching for or proving minerals, or to any
working for the purpose of making a communication
between two or more shafts, provided that not more than
twenty persons are employed at any one time in the said
new mine or working.
Section 4 provides that, if the owner of any existing mine Appeal by
objects, within the time mentioned in the 5th section, in fisting
writing addressed to one of Her Majesty's principal Secre- mine to
taries of State, that by reason of the nature of the mine, or ar
from its being nearly exhausted, or from any other special
cause, he ought to be exempted from the obligation of provid-
ing an additional shaft or outlet in pursuance of the Act, or
that he cannot provide an additional shaft or outlet within
the time limited by the Act, the said matters are to be re-
ferred to arbitration, and the arbitrator is to decide if the
owner shall be relieved from the obligation of providing an
additional shaft or outlet, or have an extension of time
granted to him. for providing an additional shaft or outlet,
and if the decision of the arbitrator is adverse to the owner ;
or if no award is made by reason of any default or neglect
on the part of the owner, he shall be bound to comply
with the provisions of the Act, in the same manner as
if this section had not been enacted.
The said 5th section provides that arbitrations, in pur- Mode of
suance of the Act, are to be conducted in manner directed
by the thirteenth section of the 23 & 24 Vic., c. 151, in tions.
cases where the owner, within the twenty days therein
552 REGULATION OF COAL MINES. [CHAP. xix.
mentioned, objects to any alterations in or additions to
rules, or rules by way of substitution proposed by the
Secretary of State ; but no objection by the owner of an
existing mine is to be entertained unless it is made within
the times following ; that is to say, if he claims to be ex-
empted from the obligation of providing an additional
shaft or outlet within six calendar months after the passing
of the present Act ; and if he claims to have an extension
of time for providing an additional shaft or outlet, within
the six calendar months immediately preceding the 1st of
January, 1865.
Power to The 6th section gives superior courts of law and equity
conTiTance P ower ) upon the application of the Attorney General
with Act. acting on behalf of the said Secretary of State, to pro-
hibit by injunction the working of any mine in which any
person is employed in working, or is permitted to be for
the purpose of working, in contravention of the provisions
of the Act, and may award such costs in the matter of the
injunction as the court thinks just ; but without prejudice
to any other remedy permitted by law for enforcing the
provisions of the Act.
Agree- Section 7th declares that no person shall be precluded
contraven- ^7 an y agreement made before the passing of the Act
tion of Act from doing such acts as may be necessary for providing
an additional shaft or outlet to a mine where the same is
required by the Act, or be liable under any agreement to
any penalty or forfeiture for doing such acts as may be
necessary in order to comply with the provisions of the
Act.
Construe- The Act by the 8th and last section is to be construed
tion of Act. w i t h the 23 & 24 Vic. as one Act, and the aforesaid addi-
tional powers to be in addition to, and not in derogation of
any powers conferred by such last mentioned Act, and all
the powers given in such last mentioned Act may be exer-
cised in the same manner as if the now recited Act had
not been passed.
Appeal. Inasmuch therefore as the two Acts of 23 & 24 Vic.
and 25 & 26 Vic. are to be construed as one Act, and the
said Act of 23 & 24 Vic. and that of 5 & 6 Vic. are also
CHAP, xix.] SIXGLE SHAFTS. 553
to be read as one Act; the 21st section of 5 & 6 Vic.
which gives an appeal to the quarter sessions to any person
aggrieved by a conviction of any justice under the 5 & 6
Vic. is now extended to the provisions of the other two Acts.
But all judgments, determinations, and proceedings of any
justice not appealed from, or of such quarter sessions, are to
be final and not subject to review by any court whatever.
And no conviction or adjudication made on appeal shall be
quashed for want of form, or be removed by certiorari into
any of the superior courts of record (/?).
The coal mines of Scotland are now mainly regulated Scotland,
by the before-mentioned statutes. Further information
may be obtained from " Barclay's Digest " (q).
(l>) Sec. 22 of 5 & 6 Vic. c. 99. (g) 2d. Edit. pp. 138, 596, 613.
554 THE COAL TRADE. [CHAP xx.
CHAPTER XX.
THE COAL TRADE.
The Coal Trade is free. Measuring keels, boats, carts, $c. Justices may fix
retail prices of imported coals. Coals must be sold by weight. Penalties for
selling one kind of coals for another. When coals are unfit for the specified
purposes. Special contract for conveying coals by rail. Statutory contract,
how proved. Duties on imported coals.
LONDON DISTRICT. The Coal Exchange. Duties on Inland and Foreign
coals entering the port. Borrowing money on duties. By-laws. Sales to be
by weight. Selling one sort of coals for another tickets on delivery sacks
ships and carts carts to be weighed with the coals delivery of less
quantity than purchased weighing-machines with carts coals and sacks to
be weighed weighing-machines to be kept at public places certificate of
quantity of coals to be delivered to be registfred penalties in respect of the
above defaults how recoverable and applied. Limitation of actions Patent
fuel not liable to duties Amendment Act, 1 2 Vic. c. 101, consequences of
not delivering tickets when coals are delivered on purchaser's wharf direct
Duties continued to 1882, and extended to coals brought by railways, canals,
or any other mode of conveyance icithin the London district. Coal-whip2)ers >
Acts expired.
LOCAL ACTS AND LAWS. Brighton King's Lynn Northumberland and
Durham, meaning offloading in regular turn' 1 '' Newcastle-upon-Tyne
Ireland.
Coal trade COAL-OWNERS, lightermen, masters of ships ? and others,
having united themselves together for the purpose of
keeping up the price of coals, it was thought necessary at
one time by the Legislature to interfere to prevent such
combinations, and accordingly three Acts of Parliament
CHAP, xx.] THE COAL TEADE. 555
were passed, viz. 9 Anne, c. 28, 4 Geo. II. c. 30, and 28
Geo. III. c. 53, wherein provisions were inserted to dissolve
such compacts, and to prevent the future combination of
persons for the purposes aforesaid ; but these provisions
failing in their object and proving injurious to the trade,
were afterwards repealed by the 6 & 7 Will. IV. c. 109.
Since this statute, merchants and others engaged in the
coal trade are free to regulate and fix the price of
coals.
By 9 Hen. V. c. 10 ; 30 Car. II. stat. 1, c. 8 ; 6 & 7 Will. Measuring
III. c. 10 ; 11 Geo. II. c. 15, and 15 Geo. III. c. 27, com- S,
missioners were appointed for the admeasurement and carts . & c.
marking of keels, boats, wains, carts, and other carnages
used for the conveyance of coals in any port, and penalties
to be recovered before a justice are inflicted for removing
or altering the said marks ; and by 52 Geo. III. c. 9 all
ships and vessels in the coal trade carrying coals, culm, or
cinders, must be measured and duties paid thereon according
to the quantity of coal the ship is capable of containing.
By statute 17 Geo. II. c. 35, any three county justices Justices
of the peace are authorized to set the rates and prices of all t a ju prices
coals, "called sea coals," as should be brought by sea into of imported
any river, creek, haven, or port, except in the river Thames, cc
to be sold by retail, allowing a reasonable profit to the said
retailer, beyond the price paid by him to the importer, and
the ordinary charges thereupon accruing; and if any
retailer of such coals shall refuse to sell as aforesaid, then
the justices of the peace respectively are authorized to
empower one of their officers to enter into any wharf, or
other place, where such coals are stored up, and to take and
sell the coal at such rates as the said justices respectively
shall judge reasonable, rendering to such retailer the
money for which the said coals shall be so sold, less the
charges and expenses thereby incurred ; and if any action
shall be commenced against the justices of the peace,
constable, or any officer or person, for anything to be done
in pursuance of the Act, the defendant in every such
action may plead the general issue, and give the special
matter in evidence ; and if the verdict be found for him,
556 THE COAL TRADE. [CHAP. xx.
or the plaintiff becomes nonsuited, such defendant shall
recover and have his damages, and treble costs of suit,
provided nevertheless, that no person interested in any
wharf used for the receiving of coals, or who shall trade by
himself or others, in his own or any other name, in the sale
of any coals, not being for his own private use, shall act, or
otherwise intermeddle in settling the price of such coals as
aforesaid.
Coals to be Coals must be sold by weight and not by measure, and
1 j i / O /
weight. by 5 & 6 Will. IV. c. 63, s. 9, it is enacted that every
person who shall sell any coal, slack, culm, or cannel of any
description, by measure, and not by weight, shall, on con-
viction, be liable to a penalty of not exceeding 40s. for
every such sale. The proceeding necessary to be taken to
recover the penalties is pointed out in the statute (a), and
inspectors of weights and measures are to be appointed (&).
All weights must be according to the imperial standard, as
fixed by the Act, and all others are illegal (c). But it was
held in the case of Jones v. Giles, that a contract for the
sale of a certain number of tons of iron by the ton, " long
weight," was not in contravention of that statute or of the
5 Geo. IV. c. 74 (d).
Penalties Selling coals of a different description from those con-
one tond of tracted for, is an offence under 3 Geo. II. c. 26, s. 4, for
coal for which heavy penalties are recoverable, and the place of
delivery of such coals is the place where the cause of action
arises (e).
When coals If coals are sold for a particular purpose, for which they
for the * prove unfit, an action will He for the recovery of damages,
specific but in the case of the Pacific Steam Navigation Company
v. Lewis, where the invoice described the coals as " steam
coals," and the plaintiffs failed to prove that the invoice
was part of their contract with the defendant, the plaintiffs
were nonsuited, but afterwards leave was obtained to amend
the declaration by alleging that the coals were unfit for
(a) Sec. 33. ( 4 -
186. (A) Sec. 4.
(h~) Brown v. Capel, M. & M. 374.
558 THE COAL TRADE. [CHAP. xx.
men to appoint and remove officers at pleasure (Z). The
corporation may remove or enlarge the market, and for
that purpose they may purchase lands and tenements (in).
For defraying the necessary expenses of the market, the
corporation are authorized to take from every master of a
vessel laden with coals, cinders, or culm, arriving in the
Duties on p Or t o f London to the westward of Gravesend, Id. per ton
(n) on the cargo. The ancient rights of the corporation to
levy other duties were not to be exercised for seven years,
but afterwards resumed under new regulations, to be
levied and paid, or in default recovered as the Act pro-
vided (0). The duties are to be applied in purchasing
land, and for other specified purposes, and when they shall
be more than sufficient for supporting the market and
paying the compensation and salaries to the clerks, and
others employed in executing the Act, then the overplus of
the duties are to be laid out in stock, in the names of the
chamberlain, town clerk, and comptroller, to accumulate
till the dividends shall be sufficient for the purposes afore-
Borrowing said, and when sufficient the duties are to cease. By sec-
of duties. ti n 25 the corporation are empowered to borrow money
upon the credit of the duties, and to make bye-laws (p),
with reasonable penalties for the regulation of the market ;
By-laws, but such by-laws must be approved of by one or more of
the judges, and be printed and published. The chamber-
lain is to keep an account of the duty, and the monies
borrowed on credit of it ; and an account of the produce
shall once in every year be laid before both Houses of
Sales to be Parliament. By section 43, all coals, cinders, and culm,
which shall be sold from and out of any vessel in London
or Westminster, or within twenty-five miles of the General
Post-office, are to be sold by weight, and not by measure.
Selling one jj v sec tion 45, if any seller shall knowingly sell one sort of
sort of coals J ' J . . . i i- i
foranother. coals for another within the assigned limits, lie shall pay
10 per ton, but shall not be subject to such penalty in
respect of any number of tons exceeding twenty-five tons
(0 Sec. 5. (o) Sees. 60-64, post, p. 562.
(TO) Sees. 6, 7. (/>) Sees. 33, 34.
(B) Sec. 23.
CHAP, xx.] THE LONDON DISTRICT. 559
for the same offence. By section 47 the seller shall, with
every quantity of coals exceeding five hundred and sixty Tickets on
pounds, delivered from any lighter, &c., within the limits dellver . v -
aforesaid, deliver a ticket in the form mentioned in the
Act, under penalty of 20. This section was afterwards
repealed, and a new provision substituted in its place, with
a similar penalty for disregarding it, but without any pro-
vision for recovering the penalty, and it was accordingly
held that no action would lie at the instance of an individual
for the recovery thereof (q). By section 48, coals sold
from any lighter, &c., or wharf, wno na ve power to award a
penalties, portion of any penalty, not exceeding one-half part thereof,
to the informer, or other person assisting in apprehending
the offender (c).
Limita- All actions must be brought and tried in the county
tions of or place where the cause of action arises, and no action or
actions. . . , , r i -
suit as to be commenced against any person tor anything
done in pursuance of the Act, after three calendar months
next after the cause of action accrues (d) ; one-half of
penalties above 25 sued for and recovered in the superior
courts, is to be paid to the informer or person suing for
them, the other half to Her Majesty (e).
Patent fuel Patent fuel, an article composed of coal-dust mixed with
not liable 13 per cent, of pitch and lime, is not liable to the duties
imposed upon coal under the Act of 1 & 2 Will. IV.
c. Ixxvi., or the continuation Acts. Wilde, C.J., said (/) :
" It is true that patent fuel is composed chiefly of coal-
dust, but, in order to make it merchantable as fuel, it is
necessary to mix the coal-dust with a certain quantity of
pitch and lime ; and, although the proportion of those ingre-
dients are small as compared with the coal-dust, it was
admitted that they were really necessary, and were not
introduced for the purpose of evading the duty. And,
although it may be true, as stated by the scientific witnesses
examined on behalf of the plaintiffs, that there is no pur-
pose to which ordinary pit coal can be applied to which
coal-dust could not also be applied ; yet it is manifest that
the latter would be applied at so great a disadvantage as to
be almost worthless ; whereas, mixed with the pitch and
lime, and having undergone the process described in the
case, it becomes, for many purposes, more valuable than
ordinary coal. The fact, therefore, of the coal-dust being
so applicable does not, in our opinion, decide the question.
In construing the Act of Parliament imposing the duty, we
must assume that the word ( coals ' is used in its ordinary
(c) Sees. 77, 79. (/) Mayor of London v. Parkinson,
(d) Sec. 89. 10 C.B. 238.
(e) Sec. 85.
CHAP, xx.] THE LONDON DISTRICT. 563
popular sense, and must see whether the article in question
comes within its meaning, according to that criterion."
The above-mentioned Act of 1 & 2 Will. IV. c. Ixxvi. i & 2 Vic.
was amended by 1 & 2 Vic. c. ci., and new provisions made c- cil
with respect to the seller's ticket (g) to be left with the de-
livery of the coals ; the weighing-machines (A) to be sent with
each cart ; the alloAvance of drawbacks (i) ; and the pay-
ment of wages ; and, subject to the approval of the Board
of Trade, the Corporation of London may issue by-laws for
regulating vessels laden with coals.
The 3rd section of 1 & 2 Vic. c. ci. is as follows : " That, Conae-
with any quantity of coals not exceeding 560 pounds deli- n n ^H f
vered by any cart, waggon, or other carriage, within the very of a
cities of London and Westminster, or within twenty-five tl(
miles from the General Post Office, the seller shall deliver,
or cause to be delivered to the purchaser, or to his servant
or agent, immediately on the arrival of the cart, waggon,
or other carriage in which such coals should be sent, and
before any of such coals should be unloaded, a ticket,
according to a certain form; and that, in case any such
seller should not deliver or cause to be delivered such
ticket as aforesaid to the purchaser of such coals, or to his
agent and servant, before any part of such coals were
unloaded, every such seller should for every such offence
forfeit and pay any sum not exceeding 20." By the
form given in the Act the ticket is required to be " signed"
with the name or names of the seller or sellers, and that of
the carman, in words at full length. In reference to this
section it has been decided that the omission to deliver a
ticket with the coals may be pleaded in bar to an action for
the price of the coals sold (/). The principle of this deci-
sion is consistent with previous cases decided on the same
class of statutes. In Little v. Poole (&), where an action
was brought for the price of a quantity of coals which had
been sold and delivered by the plaintiff to the defendant, it
was contended that the plaintiff was not entitled to recover,
(//) Sees. 2-4. (f) Cundell v. Dawson, 4 C.B. 376.
(A) Sees. 6, 6. (*) 9 B. & C. 192.
(t) See also 20 & 21 Vic. c. Ixxxix.
24 & 25 Vic. c. 42, a. 7.
2 o2
56-4 THE COAL TRADE. [CHAP. xx.
Conse- because a ticket had not been delivered with the coals, as
Sie- f re( J uirecl by the then existing statute 47 Geo. III. c. 58,
livery of s. 113 ; the various cases of Law v. Hodson (Z), Langton
ticket. v ^ jj u g] ies ( m ) ? Cannan v. Bryce (n), and Bensley v. Big-
nold (o), were cited and considered ; and Lord Tenterden,
in giving judgment, said : " The regulations prescribed by
this Act of Parliament appear to be intended to prevent
fraud in the vend and delivery of coals ; and that, for that
purpose it was required, that the ticket should be signed by
the coal-meter ; and that, as the ticket was not signed as
required for that purpose, the plaintiff, the seller of the
coals, was not entitled to recover." Bay ley, J., said :
" The case fell within the principle of Law v. Hodson, in
which case the court held, that, the policy of the Act being
to protect the buyer against the seller, it would be best
effected by holding that the vendor could not recover the
value of the bricks which had been delivered, such bricks
having been less than the statutable size; and that the
object of the Legislature in the statute then in question
(the 47 Geo. III. c. 68) would also be best effected by
holding that a seller of coals could not recover the value of
them where he had omitted to deliver a ticket pursuant to
the statute." Littledale, J., and Parke, J., recognized the
same principle, and a nonsuit was accordingly entered.
The judgment in Little v. Poole is consistent with the cases
of Marchant v. Evans (p), Rex v. the Inhabitants of
Gravesend ( 1 M. &. S. 593. 0) 2 M. & W. 149.
() 3 B. & Aid. 179. (0 4 C.B. 399.
(o) 5 B. & Aid. 335. (M) Blanford v. Morrison, lo Q.B.
(p) 2 J. B. Moore, 14. 724.
3 B. & Ad. 240.
CHAP, xx.] THE LONDON DISTRICT. 565
apply when a cargo is delivered on the wharf of the pur- Wheu coals
chaser directly from a coal brig in which it was supplied ih-e
without the intervention of any other vessel. Parke, B., dl <* on
wnsri of
said : " We are all agreed, and need not trouble the other purchaser.
side ; the 4th section imposes a penalty on the seller of
coals if they are delivered without a proper ticket. This
being a penal enactment, we must construe it strictly ac-
cording to the fair import of the language, without extend-
ing it. The section, in terms, applies only to the case of a
delivery by a vendor to a purchaser by 'lighter, vessel,
barge, or other craft.' I agree that the word l vessel ' may
denote a large or a small vessel. Its meaning must be re-
gulated by the context. I agree also that in the former
Act the word ( vessel ' and other words also may include a
brig. But in the 4th section of this Act, the words ' other
craft ' are appended to the specific words. l Craft,' there-
fore, is the governing word, which is to include all the ves-
sels previously specified. If the words had been ( ship or
other craft,' then, I think, there would have been an incon-
sistency, and we must have rejected either one word or the
other. We think that, according to the ordinary import of
language, the word ( vessel,' as used in this section, must be
' craft ;' and that the section does not apply where the cargo
has been delivered bodily out of the vessel in which the
coals were shipped at Newcastle on to the wharf of the pur-
chaser. It is said that such a case is within the mischief
contemplated; that may be; but the Legislature has not pro-
vided against it. It may have been supposed that such a
provision as the 75th section of the former Act, 1 & 2
Will. IV. c. Ixxvi. (v), which requires the fitter to send out
a certificate of tonnage to be registered at the London coal
market, would be sufficient in such a case. At all events,
we think the 4th section of the present Act applies only
where coals are delivered from a larger store by the inter-
vention of craft. Probably the section would not apply
where the purchaser fetches away the coals in a craft fur-
nished by himself ; but on this it is unnecessary to give any
opinion."
fr) Ante, p. 561.
56G
THE COAL TRADE.
[CHAP, xx
Coal
duties
continued
to 1882.
Coal-
whippers
Acts
expired.
By the 3 & 4 Vic. c. cxxxi. (after reciting several Acts
of Parliament, viz. 5 & 6 W. & M. c. 10; 10 Greo.
IV. c. 136: 11 Geo. IV. & 1 Will. IV. c. Ixiv.; 1 & 2
Vic. c. ci. ; and 2 & 3 Vic. c. 80), other provisions are made
in reference to the coal trade ; and by subsequent Acts the
duties payable under the before-mentioned Acts have been
continued to the 5th July, 1882 (?) ; those duties now
amount together to the sum of 13d. per ton, and are ex-
tended to coals brought to London by railways (a;) within
the London district (?/), or by any other mode of convey-
ance (z\ including canals (a).
The Coalwhippers Acts, which by section 50 of 14 and
15 Vic. c. 78, were to remain in force till the year 1856,
have not been since continued, consequently, the sale and
delivery of coals, and the discharge of the vessels in the port
of London, are now left under the control of the owners
and masters of vessels and the purchaser.
LOCAL Local Acts have been passed for the regulation of the
coal trade, and ships entering ports with coal ; these must
be consulted whenever any question arises affecting any
particular port, but in the absence of special regulations the
preceding observations relative to the coal trade generally,
and the Acts relating to the port of London hereinbefore
referred to, will, in numerous instances, afford assistance in
the solution of disputed questions.
Brighton. By a local Act relating to Brighton, it was enacted that
there shall be paid any rate or duty which the commis-
sioners should impose not exceeding 3s. for every chaldron
of coal brought or delivered within the limits of the town,
and it was held that a duty was payable in respect of each
quantity of coals amounting to a chaldron brought into the
town, although at different times and in several parcels, each
containing a less quantity than a chaldron (6).
(w>) 24 & 25 Vic. c. 42, s. 10 ; 26 (z) 8 & 9 Vic. c. 101, s. 2 ; 14 &
& 27 Vic. c. 46, s. 1. 15 Vic. c. cxlvi. ss. 2, 18.
(x) 8 & 9 Vic. c. 101, s. 2 ; 14 & (a) 14 & 15 Vic. c. cxlvi. ss. 13, 17,
15 Vic. c. cxlvi. ; 24 & 25 Vic. c. 42, 30, 35 ; 24 & 25 Vic. c. 42, s. 4.
s. 4. (6) Mills v. Funnell, 2 B. & C. 899.
(y) 24 & 25 Vic. c. 42, ss. 3, 7.
CHAP, xx.] LOCAL LAWS. 567
The borough of King's Lynn, in Norfolk, claimed the King's
sole and exclusive right, by immemorial custom, of measur- L y nn -
ing all coals imported into their harbour, and since the
Weights and Measures Act, 5 & 6 Will. IV. c. 63, s. 9,
came into operation, of weighing the said coals, and to ap-
point persons for that purpose by making an entry in the
corporation books of the appointment. Coal-meters were
accordingly so appointed, with the privilege of retaining for
then: own use the sum fixed by the corporation ; but in the
case of Smith v. Cartwright it was held, that the right
of the corporation by custom to measure coals imported,
was not by the 5 & 6 Will. IV. c. 63 converted into a right
to weigh, and that as the payment in respect of the measure-
ment was for the benefit of the meters only, he was an
officer and not a servant of the corporation, and therefore
an appointment under seal would be necessary (c).
A royal commission, dated 30th August, 1836, addressed
to the chief coal-owners, viewers, and custom-officers resi-
dent in or stationed in the counties of Northumberland Northum-
and Durham, contains various regulations and directions re- a ^ au
specting the measuring of coals in those districts, the regis- Durham,
try of keels, boats, waggons, and other carriages ; together
with other provisions with a view of preventing frauds ; but
the regulations thus prescribed do not seem to be much un-
derstood in the district, or generally followed.
By charter-party it was agreed to load a vessel at Sun- Meaning of
derland with coke with all possible despatch, in the custo- " loadin g
,, . i i i i . ln turn."
mary manner, " in regular turn ; delay took place in the
loading, and in an action for damages consequent upon
such delay, evidence was tendered that, according to the
custom of the port of Sunderland under such a contract,
the shipowner was bound to wait till a manufacturer
of coke, not named in the contract, had supplied all ships
(whose names were put down in a turn-book kept by
the manufacturer) which he had previously contracted to
load with coke in the port, provided he used reasonable de-
spatch ; but such evidence was held to be inadmissible,
although it was shown that the manufacturer's name \\;is
o
mentioned at the time the contract was made. It was
(c) 6 Ex. 927 ; 20 L.J. Ex. 401.
568 THE COAL TRADE. [CHAP. xx.
nevertheless held that evidence might be given to explain
the meaning of "regular turn" (d).
Newcastle- By 8 & 9 Vic. c. Ixxiii. commissioners and other officers
upon-Tyne. are appointed (e) for the regulation of the coal trade of the
Newcastle district, but nothing therein contained is to be
deemed or construed to prevent the provisions of any Act
which might be thereafter passed for the general regulation
of the coal trade from applying to the port of Newcastle
and the coal trade therein (/). The Act is to continue in
force for twenty-one years.
Coals sent from Newcastle to London were liable to a
port duty according to the Newcastle chaldron (g).
Ireland. -^7 ^ Will. IV. c. 21, several previous Acts, so far as
they imposed restrictions upon the coal trade in Ireland,
were repealed, and other regulations made in reference
thereto.
(d) Hudson v. Cleinentson, 25 L.J. (/) Sec. 48.
C.P. 234. (g) Linskill v. Read, 2 Peake's N.P.
(e) Sees. 1, 10. Cas. 68.
CHAP, xxi.] CIVIL REMEDIES. 569
CHAPTER XXI.
CIVIL KEMEDIES.
SECTION I.
COMMON LAW.
EJECTMENT.
USE AND OCCUPATION.
TROVER.
TRESPASS.
CASE.
EQUITY.
EQUITABLE RELIEF.
BILL FOR AN ACCOUNT.
FORECLOSURE SUITS.
REDEMPTION SUITS.
RECEIVERS AND MANAGERS.
INSPECTION OF ADJOINING MINES.
INJUNCTIONS.
SECTION II.
MASTERS AND WORKMEN.
COMMON LAW.
THE Common Law Procedure Acts, 1852 and 1854,
though they introduce extensive changes in the practice of
the courts, do not contain any provision for the abolition of
the forms of action previously in use ; but inasmuch as by
those Acts several causes of action may be joined together,
the distinction which formerly existed between one form of
action and another, has, to a certain extent, diminished in
importance.
570 CIVIL REMEDIES. [CHAP. xxi.
Statute of I n mining matters, the cause of action accrues when
' the actual damage was, or might have been, by reason-
able diligence, discovered ; so that the Statute of Limita-
tions would only begin to run from the period at which
the injury might have been discovered; and it was ruled
by- Mr. Justice Willes, in Bonomi v. Backhouse, over-
ruling Nieklin v. Williams (a), that any other construction
of the statute which would deprive a man of redress when
he might be in invincible ignorance of the damage, would
be harsh, and contrary to ordinary principles of law (&).
Ejectment. Ejectment, lies for the recovery of the possession of a
mine; and also for tin bounds, not, however, by the
name of "bounds," but of a "mine"(c). When eject-
ment lies, and there are liberties, easements, or other in-
corporeal rights appurtenant to the mine and enjoyed
therewith, they may be recovered with the mine (d).
The legal owner of the fee and all other persons with
limited legal interests may bring ejectment, but a person
claiming under a license only, if out of possession, cannot
maintain the action (e). One of several joint tenants who
has been ousted by his companions may also maintain the
action (/). Ejectment cannot be brought by the lord of
the manor for the recovery of mines situate in the lands of
the copyhold tenants, because, in the absence of custom,
the property only in the minerals is vested in the lord,
whilst the legal possession of them is in the tenant (g) ; and
it is doubtful whether ejectment will lie for an unopened
mine in any lands, freehold or copyhold, when the title to
the mine is distinct from that of the surface (A).
(a) 10 Ex. 259. v. Brenton, 10 Q.B. 53 ; ante, pp.
(6) Ante, pp. 154, 334, 499; Denys 365, 373.
v. Shuckburgh, 4 You. & C. 42 ; (d) Crocker v. Fothergill, 2 B. &
Emmott v. Mitchell, 14 Sim. 432 ; Aid. 661.
Chasemore v. Richards, 7 H.L. Ca (e) Doe d. Hanley v. Wood, 2 B.
& Aid. 724 ; Daniel v. Gracie, 6 Q.B.
349 ; Bonomi v. Backhouse, 28 L.J
Ex. 335.
(c) Harebottle v. Placock, Cro. Jac
21 ; Comyn r. Kyneto, ib. 150
Andrews i : . Whittingham, Carth. 27;
145.
(/) Co. Litt. 199 b ; Cubitt v.
Porter, 8 B. & C. 268 ; Stedman v.
Smith, 26 L.J. Q.B. 314.
1 Salk. 255 ; Crocker v. Fothergill, ($r) Ante, p. 172.
2 B. & Aid. 660 ; Jones v. Reynolds, (/) Sayer v. Pierce, 1 Ves. Senr.
11 Ad. & Ell. 808 ; Vice v. Thomas, 234 : Wilkinson v. Proud, 11 M. &
Smirke's Eep. 35 ; Earl of Falmouth W. 33, 37.
v. Alderson, 1 M. & W. 210; Rogers
SECT, i.] USE AND OCCUPATION. 571
An action for use and occupation can be maintained on Use and
an agreement for a lease to work veins of minerals, when occu P atl(
any act has been done to constitute possession, such as be-
ginning to explore the ground, or making preparations for
commencing operations (i).
Trover lies for the wrongful removal of all ores severed Trover,
from the soil (j\ and a licensee may maintain the action (k) ;
but every wrongful removal which deprives a person of the
possession of his property is not necessarily such a conver-
sion of the property as will amount to trover (I).
If in possession, the owner of a mine may maintain tres- Trespass
pass ; if out of possession, an action on the case is generally ai
the proper remedy for all kinds of injury to the property ;
in some instances there is an election between trespass and
case (m). Case generally lies for and in lieu of the action of
waste (w), and may be maintained for any kind of waste, not-
withstanding that the injuries sustained constitute a breach
of an express covenant (0). The remedy does not die with
the person who committed the trespass, but will lie against
the executor or administrator of a deceased person, both for
injuries committed by the deceased during his life, as well
as for those injuries which have been continued by his
legal representatives (p). The various questions which we
have discussed respecting injuries to mining property will
generally form the subject of either one or the other of
these forms of action, and in most instances of both (q).
When the lateral adjacent or subjacent support to lands With-
has been withdrawn through mining operations, a right of JjJJJ?^
action accrues to the injured party ; unless the proprietor lands by
of the soil has lost his right to support under one or other m
of the circumstances before referred to (r). Ignorance of
(t) Jones v. Reynolds, 7 C. & P. () Ante, p. 259.
335 ; 4 Ad. & Ell. 805. (o) Marker v. Kenrick, 13 C.B.
CO Rowe v. Brenton, 8 B. & C. 188.
737; ante, p. 176. (p) Powell . Rees, 7 Ad. & Ell.
(A) Northam v. Bowden, 24 L.J. 426 ; 8 L.J. N.S. Q.B. 47.
Ex. 257; ante, p. 311. (?) Ante, pp. 176, 253, 261.
(0 Thorogood v. Robinson, 6 Q.B. (/) Ante, pp. 337, 440, 455, 469,
769. *72, 476.
O) Muskett v. Hill, 5 Bing. N.C.
694 ; Cubitt v. Porter, 8 B. & C. 268 ;
Marker v. Kenrick, 13 C.B. 188.
572 CIVIL REMEDIES. [CHAP. xxi.
the limits will be no excuse for a trespass upon another's
rights, unless the trespasser was misled by the party seeking
redress (s). No course of action arises merely in conse-
quence of the omission to fill up excavations or apertures
wrongfully made (t).
Amount of J n estimating the amount of damages, the full value of
the severed minerals will be allowed without any deduction
for the expenses incurred in severing them, or for rent pay-
able to the mine-owner ; but the expenses of removing the
minerals and bringing them to the pit's mouth may be de-
ducted (w).
Water. Any interference with the right of another, to the use of
water, whether in its natural or artificial state (v), is ac-
tionable (w), even though no actual damage may have
ensued (#) ; and if the water is diverted so as materially to
lessen the application of it to the estates or property of an
owner above or below, an action also lies, unless a prescrip-
tive right to divert the water can be established (z/) ; and
an action can be maintained for its defilement or pollu-
tion (z). A. distinction has been drawn between natural
and artificial waters, and it has been laid down in effect
that what would be damage to a natural stream may be no
damage to an artificial one, and that the mode of deter-
mining the right of parties to artificial water must depend
upon the manner and object for which they were ac-
quired (a). But the most important questions generally
arise respecting subterranean waters, and the respective
rights of owners of adjoining mines to the use of them (b) ;
and here it is material to observe, that it is doubtful whether
a claim to underground waters can be acquired by prescrip-
tion or custom (c).
inunda- Inundations caused by the flowing of water from one
tions.
(s) Atty.-Genl. v. Fullerton, 2 Yes. (u) Ante, p. 484, 504.
& B. 263. (w) Ante P- 492 . 493 -
(0 Firmstone v. Wheeley, 13 .LJ. (x) Ante, p. 488, 493.
Ex. 361 ; Clegg v. Dearden, 12 Q.B. (y) Ante, p. 327, 489, 492, 505.
601. (z) Ante, p. 494.
O) Martin v. Porter, 5 M. & W. (a) Ante, p. 504.
351 ; Morgan v. Powell, 3 Q.B. 278; (6) Ante, p. 496.
11 L.J. Q.B. 263 ; Wild v. Holt, 11 (c) Ante, p. 503.
L.J. Ex. 285; 9 M. & W. 161, 672.
SECT, i.] TRESPASS-CASE. 573
mine into another, consequent on the breaking of barriers, Barriers,
are of frequent occurrence ; and in all such cases, the onus
of proving a right to have the barrier maintained, generally
devolves upon the injured party (d). In the case of Smitn
v. Kenrick, it was contended that the owner of one mine
was of common right bound to prevent the water coming
into his own mine from flowing into his neighbour's ; but
Cresswell, J. (e\ held the contrary, and decided that it
would rather seem to be the right of each of the owners of
the adjoining mines, neither being subject to any servitude
to the other, to work his own mine in the manner most
convenient to himself, although the natural consequence
be, that some prejudice might accrue to the adjoining
owner, so long as there was no negligence or malicious in-
tent. But the courts of equity always did, and the courts
of law will now also, restrain the owner of one mine from
inflicting unnecessary injury to his neighbours ; and all an-
ticipated encroachments will be prevented (/).
The privileges which have been accorded to miners, in Ways,
the use of roads and ways, as well as way-leases, have often
been the cause of litigation ( P- 513 -
(/) Ante, pp. 253, 261 ; and post,
p. 576.
574 CIVIL REMEDIES. [CHAP. xxi.
EQUITY.
Equitable -yy e nave pointed out numerous instances where equity
lias interfered to prevent a wrong ; and if it be remembered
that mining property is of a very fluctuating nature, and
that one of the most useful branches of the jurisdiction of
the courts of equity is to afford instant relief, it will be seen
how applicable the remedies in equity are, to all kinds of an-
ticipated or actual injuries to mines or mining interests.
Contracts. A contract for the purchase of any interest in a mine
should be carried into effect with the least possible delay ;
time is the essence of the contract, and the intended pur-
chaser may therefore fix a peremptory day for completion,
and on the contractor making default, may rescind the
contract, or apply to equity to enforce it, and pend-
ing proceedings, protect the property (&). The Court of
Chancery will act with unwonted vigour in such a case. If
after a lease is granted to work mines, and the lessee
delays working the mine, equity will interfere (J).
Deeds. The construction of mining deeds forms an important
branch of mining law, and it appears from the numerous
cases discussed in this work how frequently equity is
resorted to in such cases. Even a devise of minerals
requires more than ordinary care, and has occasioned the
necessity of equity construing the intention of the parties.
Formerly, equity would not try the right to a mine (m), but
now, whenever any question of title arises out of proceed-
ings in Chancery, that court must try the question, and has
no power to remit it to the common law courts (n).
Bill for an ^ bill in equity may be filed for an account of the
account, profits and loss of a mine in certain cases, and under
certain circumstances, because it is a species of trade (o),
but it is doubtful whether the court will lend its aid to this
(/fc) Macbryde v. Weekes, 22 Beav. (o) B. of Winchester v. Knight, 1
533. P.W. 406; Whitfield v. Bewit, 2
(7) Green v. Sparrow, cited in 3 P.W. 240 ; Jesus Coll. v. Bloome, 3
Sivanst, 408. Atk. 262 ; Pulteney v. Warren, 6
(m) Vice v. Thomas, 4 Y. & C. Ves. 89 ; Norway r. Rowe, 19 Ves.
538; Sayerv. Pierce, 1 Ves. Senr. 232. 144; Hood v. Easton, 2 Giff. 692;
(n) Copeland v. Webb, 1 N.R. 119. ante, p. 230.
SECT, i.] EQUITY ACCOUNT. 575
mode of proceeding on the part of one or more of several Bill for an
owners, if the partnership affairs can be wound up under
the Joint Stock Companies Acts ; and it will be even more
reluctant still to interfere between partners in mines cany-
ing on business within the counties of Cornwall and Devon
on the Cost Book principle, as in those cases full and ample
justice may be generally attained by a resort to the court of
the Stannaries (j;>). The difficulties also of proceeding in
equity for an account in an unregistered mining company
will be apparent, when it is remembered, that in an ordinary
suit of this nature, all those who are or have been partners,
and are to be affected by the proceedings, should be before
the court.
Whenever this remedy is resorted to, the bill should be
filed as soon as the necessity for the account arises, as un-
necessary delay will prejudice the application to the
court (q).
As a rule, the account will be decreed, either indepen-
dently of relief respecting the corpus of the land, or as in-
cident or collateral to it (r).
A bill for an account may be filed, among other reasons,
for preventing a multiplicity of actions, but not to award
damages only or to give relief attainable at law (s).
When an account is decreed, the proper officer of the
court, who takes the account, must allow all the reasonable
expenses incurred in the management of the partnership
affairs (i).
A bill for an account will also be sustained by the
owners or lessees of a mine against their agent (u) ; by a
mortgagor of mines against his mortgagee (t?) ; by a mort-
gagee who is also a partner against his co-partner (w) ; by
(p) 18 & 19 Vic. c. 32. See 25 & (/) Scott v. Nesbitt, 14 Ves. 445.
26 Vic. c. 89. () Crease v. Penprase, 1 Jur. 840,
(j) Parrott v. Palmer, 3 My. & K. 2 You. & C. 527.
632. (r) Hughes r. Williams, 12 Ves.
(r) Bishop of Winchesters. Knight; 493; Rowe v. Wood, 2 Jac. & W.
Pulteney v. Warren ; Parrott r. Pal- 559 ; Norton v. Cooper, 25 L.J. Ch.
mer, supra. 121 ; Millett v. Davey, 32 L.J. Ch.
() Bishop v. Church, 2 Ves. Senr. 122.
104 ; Yates . Hambly, 2 Atk. 362 ; (w) Rowe r. Wood, supra.
Smith v. Cooke, 3 Atk. 381 ; Sayer v.
Pierce, 1 Ves. Senr. 232.
576
CIVIL REMEDIES.
[CHAP. xxi.
Statute of
limitation.
Foreclosure
and re-
demption
suits.
Receivers
and
managers.
a lessor against a lessee as a trustee for other persons (#) ; by
a mortgagor against the owners of adjoining property (t/) ;
by an infant on his coming of age against his guardians (z).
Where, by underground working, the defendant had
wrongfully taken the coal of his neighbour, the court
limited the account to six years, but intimated an opinion
that the onus probandi rested upon the wrong-doer to show
that any coal which was proved to have been wrongfully
abstracted was so abstracted within the six years ; and that
in cases of fraud, as where ships had been taken to conceal
the wrongful act, the accounts would not be limited to any
period (a).
The peculiar nature of mining property, gives additional
importance to proceedings in equity instituted by mort-
gagors or mortgagees ; and we have already referred to
several questions recently decided on the respective rights
of these parties in foreclosure and redemption suits (b),
It is only necessary further to observe that wherever equity
is resorted to, the fluctuating nature of mining property
will influence the court very considerably in the exercise of
its jurisdiction.
A receiver or manager of mines will be appointed at the
instance of one of several owners, on the ground that
the subject-matter is a species of trade, and not a mere
tenancy in common in land (c), but not against a
mortgagee in possession for omitting to incur unnecessary
expenses, although it might be a beneficial expenditure (d),
These and other similar questions will be found in another
part of the work (e).
Inspection ^ ^h e owner of a mine has reason to suspect that the
of adjoin- owner of an adjoining mine is encroaching on his rights,
(x) Clavering v. "VVestly; Claver-
ing v. Reed, 3 P. W. 402.
O) Hood v. Easton, 2 Giff. C92;
ante, p. 231.
(z) Mulhallen v. Marum, 3 Dru.
& W. 337.
(a) Dean v. Thwaite, 21 Beav.
621; Hood v. Easton, supra; and
ante, p. 230.
(6) Ante, p. 231.
(c) Holmes v. Bell, 2 Beav. 298;
Jefferys v. Smith, 1 Jac. & W. 298;
Goodman v. Whitcombe, 1 Jac. & W.
689 ; Crawshay v. Maule, 1 Swanst.
495 ; Wilson v. Greenwood, 1 Swanst.
471 ; Smith v. Jeyes, 4 Beav. 503.
(O Rowe v. Wood, 2 Jac. & W. 555.
(e) Ante, p. 230.
SECT, i.] INSPECTION OF ADJOINING MINES. 577
he may obtain an order for inspection under the 58th
section of the Common Law Procedure Act, 1854 (17
& 18 Vic. c. 125), or from a court of equity ; and
the court which grants such inspection, may order the
removal of all obstructions with a view to such inspection
being effectually made ; and, if necessary, to direct the
making of drift-ways, or any other act which the Govern-
ment inspector of the district may report can be done
without any practical difficulty or danger to the lives or
health of the workmen, or probability of detriment to
the present or future workings of the mine so to be
inspected, beyond a temporary inconvenience, such as
suspension of the works. And the court may also order,
that the owner of the mine to be inspected, shall give all
reasonable facilities for access to the mine, and for the ven-
tilation thereof during such inspection (/).
Formerly, the courts of equity had exclusive jurisdiction Injunc-
in the granting of injunctions, but now, whenever any
proceedings are pending in a court of law, the judges of
those courts have generally concurrent jurisdiction with the
courts of equity in the granting of injunctions (g).
It is only in cases of urgent necessity that the injunction The effect
is granted, and whenever the necessity does exist, the
parties seeking relief must be very prompt in making the
application to the court, as any delay is not only an
argument against the urgency, but is generally fatal to the
application (Ji) ; but delay in cases of waste is not so pre-
judicial to the application, as in other cases where in-
junctions are applied for (i).
(/) Atty.-Genl. v. Chambers, 12 496; Clavering v. Clavering, 2 P.
Beav. 159; Notes to the case of the Wms. 388; Grey v. Duke of North-
E.ist India Co. v. Kynaston, 3 Bligh, umberland, 13 Ves. 236 ; 17 Ves.
O.S. 153, 168; Ennor v. Harwell, 6 282; Birmingham Canal Co. v.
Jur. N.S. 1233; Bennitt v. White- Lloyd, 18 Ves. 515; Norway v.
house, 29 L.J. Ch. 326 ; Bennett v. Rowe, 19 Ves. 143; Field v. Beau-
Griffiths, 30 L.J. Q.B. 98 ; Whaley mont, 1 Swanst. 204 ; Clowes v.
v. Brancker, 10 L.T. N.S. 155; ante, Beck, 20 L.J. Ch. 505; Clegg r. K<1-
p. 289. mondson, 3 Jur. N.S. 299 ; Williams v.
(/) 15 & 1C Vic. c. 76, sec. 226; St. George's Harbour Co. 2 De G. &
17 &18 Vic. c. 125, sees. 79-82; 25 J. 547; Davies v. Marshall, 4 I, T.
& 26 Vic. c. 79, sec. 6 ; ib. c. 89, N.S. 105.
sec. 85. (t) Atty.-Genl. v. Eastluke, 1L
(/) Lowther v. Stamper, 3 Atk. Hare, 205.
2r
578
CIVIL REMEDIES.
[CIIAP. XXI.
Injunc-
tions.
Waste.
Trespass.
Negligence in a plaintiff will also frequently deprive him
of his right to an injunction (j).
Formerly, it was doubted whether an injunction could
be granted to restrain the use of a legal right, but it seems
now to have been decided that a legal right improperly or
iiiequitably exercised may be restrained (&), especially as
against persons with limited interests (I).
We have shown that an injunction will be granted to
prevent any anticipated injury to mines; and even when
the title is disputed, if delay would be likely to cause per-
manent injury, the injunction will be granted without wait-
ing for any decision on the issue concerning the right (m) ;
on the other hand, injunctions will be granted to prevent the
working of mines to the injury of adjoining mine proprietors
or the detriment of the rights of others on the surface or in
adjacent lands (w), and either at the instance of those in
possession or in reversion. But the courts of equity show
great reluctance to grant injunctions ex parte, or where the
right to the injunction depends upon any undecided pending
point of law, and even before the equities of the suit have
been determined (o).
Injunctions have always been granted to restrain all
kinds of waste (p). The principle upon which the court of
equity has acted in restraining waste by persons with
limited interests, has been stated to be analogous to a breach
of trust (q\ but that view of the doctrine of waste has
lately met with disapproval (r).
Injunctions have also for some time been granted in cases
of trespass (s), but there must be a much stronger case
(/) Johnson v. Wyatt, 11 W. R.
852.
() Buckland v. Gibbins, 11 W. R.
483.
(0 Thomas v. Oakley, 18 Ves.
184.
(m) Ante, pp. 253, 201.
() Ante, p. 455 ; Hunt v. Peake,
29 L.J. Ch. 786 ; Whaley v. Brancker,
10 L.T. N.S. 155.
(o) Ante, pp. 259, 261.
(p") Ante, pp. 157, 253; Farrant
v. Lovel, 3 Atk. 723 ; Lord Norbury
r. Alleyne, 1 Dr. & Walsh, 337;
Keogh v. Collins, Kay & J. 805 ;
Kemp v. Sober, 1 Sim. N.S. 520; 19
L.T. 308 ; Neale v. Cripps, 4 K. & J.
472 ; Elwell v. Crowther, 31 L.J. Ch.
765 ; Bagot v. Bagot, 32 L.J. Ch. 116.
(q) Ormonde v. Kynersley, 5 Mad.
369 ; 7 L.J. Ch. 150 ; 8 L.J. Ch. 67.
(r) Kingham v. Lee, 15 Sim. 399 ;
Powys v. Blagrave, Kay, 501 ; 4 De
G. M. & G. 448.
(s) Mitchell v. Dors, 6 Ves. 147 ;
Earl Cowper . Baker, 17 Ves. 128 ;
Player v. Roberts, Sir W. Jones, 243.
SECT. I.]
INJUNCTIONS.
579-
to justify the interference of the court in cases of trespass
than in those relating to waste (f).
Injunctions have been granted to restrain the taking of Injunc-
precious stones (w) ; to prevent a tenant and strangers from 1(
digging for minerals (v) ; from removing mineral sub-
stances deposited by a stream (w) ; at the instance of the
lord of a manor to protect his rights after a sale of land
with a reservation of the minerals (x) ; from destroying
fences (y) ; to protect the legal rights of a riparian pro-
prietor to the flow or purity of a stream, whether natural
or artificial (z) ; to prevent water from flowing into the
mine of another (a) ; against diverting water (b) ; from
conveying coals by means of an underground tramway (c) ;
from destroying or injuring a colliery way-leave (d) ; to
prevent the breach of a covenant, where the construction of
the covenant is free from ambiguity (e).
The court will be very cautious in granting in junctions to When
, . ., i . r !_ * / f\ mines are
restrain the working or mines in active operation (/). j n ac tive
operation.
(2) Wood v. Sutcliffe, 2 Sim. N.S.
163 ; Clowes v. Beck, 13 Beav. 347 ;
McSwiney v. Haynes, 1 Ir. Eq. 322 ;
Peter v. Daniel, 5 C.B. 568 ; Oldaker v.
Hunt, 6 De G. M. & G. 376; Atty.-
Genl. v. Borough of Birmingham, 4
Kay & J. 528; Bidder v. Croydon,
6 L.T. N.S. 778 ; Ennor v. Barwell, 2
Giff. 410 ; Hodgkinson v. Ennor, 32
L.J. Q.B. 231.
() Duke of Beaufort v. Morris, 6
Hare, 340.
(6) Elmhirst v. Spencer, 2 Mae. &
G. 45 ; Whaley v. Brancker, 10 L.T.
N.S. 155.
(c) Bowser v. Maclean, C Jur. N.S
1220; see also Pollard v. Clayton, 1
(<) Elmhirst v. Spencer, 2 Mac.
& G. 45 ; M'Curdy v. Noak, 17 L.J.
Ch. 166.
(u) Earl Cowper v. Baker, 17 Ves.
128; Whaley v. Brancker, 10 L.T.
N.S. 155.
() Flamang's case, cited 6 Ves.
147; 7 Ves. 308; 15 Ves. 138;
Emmott v. Mitchell, 14 Sim. 432;
Earl Lonsdale v. Curwen, 3 Bli. 168 ;
Grey v. Duke of Northumberland, 17
Ves. 281 ; Haigh v. Jaggar, 2 Coll.
231 ; Earl Cowper v. Baker, 17 Ves.
128; Thomas v. Oakley, 18 Ves. 184;
Clowes v. Beck, 13 Beav. 347 ; Powell
v. Aiken, 4 K. & J. 343.
(w) Thomas v. Jones, 1 Y. & C.C.C.
526.
(a;) Grey v. Duke of Northumber-
land, 13 Ves. 236; 17 Ves. 281;
Bourne u. Taylor, 10 East, 189; Lewis
v. Branthwaite, 2 B. & Ad. 437;
Whitechurch v. Holworthy, 19 Ves.
213; Hilton v. Lord Granville, 5
Q.B. 701 ; Bowser v. Maclean, 2 De
G. F. & J. 415.
(y) Pratt r. Brett, 2 Mad. 62.
K. & J. 462.
(d) Newmarch v. Brandling, 3
Swjnist. 99.
(e) Tipping v. Ecker.-ley, 2 K. & J.
264.
(/) Grey v. Duke of Northumber-
land, 13 "Ves. 236; Birmingham
Canal Co. v. Lloyd, 18 Ves. 515; Field
v. Beaumont, 1 Swanst. 208.
2 p 2
580 CIVIL REMEDIES. [CHAP. xxi.
MASTERS AND WORKMEN.
When labourers' Contracts are within Statute of Frauds. Contracts for an in-
definite time notice to determine service.
APPRENTICE v. MASTER, for neglect, want of instruction, or proper main-
tenance.
WORKMAN v. MASTER, for an injury caused by negligence when the work-
men contribute to the misfortune when a competent foreman is engaged
when accident occurs through another servant when fellow-worker is a
partner a volunteer worJcer. Statutory liability Lord Campbell's Act.
23 $ 24 Vic. c. 151 ; 25 # 26 Vic. c. 79 neglect of general and special rules
Injunctions. Fences.
MASTER'S LIABILITY TO STRANGERS, for the acts of his workmen un-
lawful acts when a contractor is employed fraud of workmen.
MASTER v. STRANGERS, for loss of services of workmen -for harbouring
workmen for procuring breach of contract.
Drowning Coal-pits and Mines.
Statute of CERTAIN contracts entered into between a master and
Frauds. , . 1 . .
his workman, whether in reference to mining or any other
occupation, must be in writing, as will appear by reference
Workmen's to the Statute of Frauds (a). In mining contracts there
contracts, should be inserted a provision in case of accidents or checks
in trade which might cause unavoidable interruption in the
works ; such as : inundations, falling in of shafts or pits,
freezing of canals, as it is probable that the employer,
under those and similar circumstances, would in the absence
of any agreement to the contrary, be bound to pay the em-
ployed for the period when it would be impossible to work (6).
Whether such contracts be oral or written, we have already
pointed out the summary proceedings before justices for the
regulation of the conduct of masters and workmen, the re-
covery of wages, and the punishment of misdemeanors (c).
We now proceed to show that the workman or apprentice, in-
dependently of such summaryproceedings, has a common law
right of action against his master in respect of all contracts
whatsoever. If a workman, not being a domestic servant,
enters into a contract of service for an indefinite time, the
(a) Ante, p. 268. 161 ; Whittle v. Franldand, 2 B. &
(6) Reg. v. Lord, 17 L.J. M.C. S. 19.
181 ; ex parte Bailey, 23 L.J. M.C. (c) See ante, p. 537.
SECT, n.] MASTERS AND WORKMEN. 581
law presumes a yearly hiring (d} ; but such a presumption
may be varied by evidence of usage to the contrary (0) ;
but if not so varied, and the workman misconducts himself
and is discharged during the year, or voluntarily quits his
employment during the year, in either case he is not en-
titled to any wages for that year (/).
In all cases of yearly hiring, some doubts have been Notice to
entertained respecting the mode of determining such en-
gagements, but the law would now seem to be settled on
this point by deciding that such services shall end with the
current year upon a 'reasonable notice to quit (g). Rea-
sonable notice is generally understood to be a three months'
notice ; but if the judge, on the trial of a cause, leaves the
jury to decide the question whether the service was to
last till the end of the current year and be determined by
a three months' notice, or how otherwise the court will
not disturb the verdict on the ground either of misdirec-
tion, or that it is an inflexible rule that, except with menial
servants, a general hiring was a hiring for a year (h).
Cases, therefore, will frequently arise, where the length of
service and the notice necessary to determine it must de-
pend upon the nature of the w r ork contracted to be per-
formed and the usage applicable to such cases (i).
The length of notice generally tallies with the length of
service or time between the pay-days ; in South Wales, a
month's notice is generally understood; in the North of
England, where the pay is usually every fortnight (j), a
fortnight's notice is required ; and in Cornwall, the length
of notice depends entirely upon the nature of the employ-
ment. Apart from the arrangements of particular districts,
labourers, miners, and workmen, are generally engaged by
the week or month, and in such cases, a notice equal to the
length of service is required.
(d) Lilley v. El win, 11 Q.B. 742; (y) Williams v. Byrne, 7 A. & E.
Fawcett v. Cash, 5 B. & Ad. 904. 177 ; Todd r. Kerrich, 8 Ex. 151.
(e) Baxter v. Nurse, CM. & G. 935. (K) Fairinan v. Oakford, 29 L.J.
(/) Huttman v. Boulnois, 2 C. & P. Ex. 459.
510 ; Lilley v. Elwin, 11 Q.B. 742; (i) Nowlan v. Ablett, 2 C. M. & R.
Kidgway v. Hungerford Market Co. 54.
3 A.&E. 171 ; Horton r. McMurtry, (./) Whittle v. Frankland, 31 L.J.
29 L.J. Ex. 260. M.C. 81.
582 CIVIL REMEDIES. [CHAP. xxi.
Apprentice An apprentice has a right of action against liis master
v. master. ,. ' . r i ^ ^
to enforce a covenant for Ins instruction and maintenance,
even though the apprentice may misconduct himself (&) ;
and this would even appear to be the law, although the
apprentice's conduct amounted to gross negligence and
even dishonesty (T).
If the master ill-treats his apprentice, the latter, not-
withstanding anything to the contrary contained in his in-
denture of apprenticeship, will be justified in deserting his
master (m).
Workman A master who employs a servant, is bound to take all
reasonable precautions for the safety of that servant, more
especially if the work is, like mining, of a dangerous cha-
racter ; and the law of Scotland on this point is the same
as the English law ; if, therefore, from any negligence of
Master's the master an in -jury is sustained by the workman, the
liability for v n ^ f i ill
negligence, master is liable to an action for damages. It would be
gross negligence not to inform the workmen of concealed
dangers known to the employer (w), or if the master
is present and personally superintends the work (o) ; but
the master's liability does not extend to injuries caused
by third parties (p), or where the workman could judge
as well if not better than the master of the precautions
Workmen's necessary to be taken for the prevention of accidents (q) ;
and the master's responsibility ceases when the accident
occurs in consequence of the negligence of the workman
himself, or by his disregarding the rules prescribed for
his safety (r). Indeed, no action will lie for the recovery
of damages where the party complaining, has by his
own want of due care and caution, in any way con-
tributed to the accident (s) ; but there is a distinction to
(&) Winstone v. Linn, 1 B. & C. (o) Roberts v. Smith, 26 L.J. Ex.
469-70. 319.
(0 Philps v. Clift, 28 L.J. Ex. (p) Alsop v. Yates, 27 L.J. Ex.
153. 156.
(m) Edward v. Trevellick, 4 Ell. (q) Seymour v. Maddox, 16 Q.B.
& B. 69-70. Rep. 330 ; Couch v. Steel, 3 Ellis &
O) Paterson v. Wallace, 1 Mac- B.402.
queen, 748 ; Bartonshill Coal Co. v. (r) Senior v. Ward, 28 L.J. Q.B.
Reid, 3 Macq. 295; Roberts v. Smith, 139.
26 L.J. Ex. 319 ; Ashworth v. Stan- (s) Witherley v. Regent's Canal
wix, 30 L.J. Q.B. 183. Co. 12 C.B. N.S. 2.
SECT, ii.] MASTERS AND WORKMEN. 583
be drawn when the action is founded in tort and not in
contract (t).
In Brydon v. Stuart (w), it was decided that the owner of Master's
J ,. I'M liability for
a mine was bound to exercise ordinary care and vigilance ne giigence.
in keeping the shaft of a mine and the machinery and
tackle for lifting people from it and lowering them into it,
in a secure and sound condition ; in that case, the widow
of a man who was killed in being drawn up out of the
shaft, sued for and recovered damages under Lord Camp-
bell's Act. The man was being drawn up at his own re-
quest, and on his refusal to work on account of alleged Refusal to
defects in the lining and ventilation of the pit ; but the work>
Lord Chancellor held, that even if the refusal to work
was unlawful, the master was liable. " Whatever," said
his lordship, " the man does in the course of his master's
employ, according to the fair interpretation of the words
eundo, morando, redeundo, the master is responsible, and it
does not make any difference that the workmen had 110
lawful excuse or proper cause for leaving their work. If
they had said wrongfully, ( We will not work any more,
we will terminate our contract ; now take us up again ;'
it was the duty of the master to take them up safely,
as to have brought them down safely. The master who
lets them down is bound to bring them up, even if they
come for their own business, and not for his. He is
answerable for the state of his tackle, which in this instance
was defective, and his obligation continues even after the
men have ceased to work in his employ, and while they are
causing themselves to be removed from it."
The master is not liable when he employs a competent When
foreman to superintend the works, and gives him' instruc- fo^, 1 ^^
tions to examine the plant, machinery, and tackle, to see engaged.
that it is fit for use (v). The same principle was upheld
in a judgment of Chief Justice Shaw in America (w).
The mere relation of master and servant does not
(0 Martin v. Great Northern Ry. (M) 2 Macq. 34.
16 C.B. 179; Waite v. North-Eastern (v) Ormond v. Holland, Ell. B. &
Ry. Co. 27 L.J. Q.B. 417; 28 L.J. Ellis, 102.
Q.BJ258. (w) See 3 Macq. 316.
584
CIVIL REMEDIES.
[CHAP. xxi.
Extraor-
dinary
risks.
Negligence
of fellow-
AVhen fel-
low-work-
man is a
partner.
raise an implied contract on the part of the master, to take
due and ordinary care, not to expose the servant to ex-
traordinary danger and risk in the course of his employ-
ment (#).
If one servant suffers for the wrongful act or carelessness
of another servant, the master will not be responsible if he
took ordinary precautions to have proper servants and ma-
chinery for the conduct of the work (y) ; as a rule, indeed, a
servant has no right of action against his master for injury
done to him in the course of his employ by the acts of his
fellow-servant ; and if killed, no action under the 9 & 10
Vic. c. 23 can be maintained by his representatives (2). For
instance, where the plaintiff, was with other workmen in the
employ of the defendant, engaged in sinking a pit, and was
at the bottom of the pit assisting in filling a tub with water,
which was drawn up to the top to be emptied, and through
something occurring at the top where his fellow-work-
men were employed, it fell down on the plaintiff and
injured him, the master was held not to be liable (a).
But the master's liability attaches unless the servants are
engaged in the same common employment, and engaged
in the same work under that common employment (6) ;
where, therefore, servants are engaged in different depart-
ments of duty, an injury committed by one servant upon
another, will make the master liable (c). Some nicety, and
even difficulty, in particular cases will occasionally arise,
but by keeping in view the few leading principles here laid
down, the liability of the master can generally be ascer-
tained without much difficulty.
If a servant sustains an injury from his fellow-servant,
who is also one of the proprietors, such fellow-servant
(or) Riley v. Baxendale, 30 L.J.
Ex. 87.
(y) Priestley v. Fowler, 3 M. & W.
I; Wiggett v. Fox, 11 Ex. 833; Hut-
chinson v. Newcastle, Y. & B. Ry. Co.
5 Ex. 343 ; Degg v. Midland Ry. Co.
1 H. & N. 773; Wigmore v. Jay, 5
Ex. 354; Bartonshill Coal Co. v.
Reid, 3 Macq. 284, 288, 307; Tar-
rant v. Webb, 25 L.J. C.P. 261;
Searle v. Lindsay, 31 L.J. C.P. 106.
(z) Vose v. Lancashire & Y. Ry.
Co. 27 L.J. Ex. 249 ; Searle v. Lind-
say, 31 L.J. C.P. 106.
(a) Griffiths v. Gidlow, 27 L.J. Ex.
404.
(6) Walter v. South-Eastern Ry.
Co. 32 L.J. Ex. 209.
(c) Potter v. Faulkner, 31 L.J. Q.B.
30; Bartonshill Coal Co. v. Me-
Guire, 3 Macq. 307.
SECT, ii.] MASTERS AND WORKMEN. 585
would be liable in his character of master, and being
liable, the partners of such fellow-worker in the same con-
cern, are also liable (d).
If a person volunteers to assist a servant in his work, A volun-
and whilst so employed, sustains an injury by the negli- ^ ker
gence or carelessness of another servant, the master would
not be liable (. (6) Hall v. Hollander, 4 B. & C.
Riches, 16 C.B. 104. G60.
0) Bartonshill Coal Co. v. Reid, 3 (c) Bennett v. Allcott, 2 T.R. 166 ;
Macq. 283 ; Bartonshill Coal Co. v. Carr v. Clarke, 2 Chitty's Rep. 261.
McGuire, 3 Macqueen, 300-6. (d) Reg. v. Chillesford, 4 B. & C.
(z) I. i in | .us v. London G. 0. Co. 102.
32 L.J. Ex. 34.
590
CIVIL REMEDIES.
[CHAP. xxi.
Master
may sue
strangers
for har-
bouring
workmen,
for pro-
curing
breach of
contract.
where a married woman is separated from her husband
and living with her father as his servant, the father
D
may maintain the action (e). The relationship of master
and servant must, however, be shown to be a real genuine
service ; and where, therefore, a person is only occa-
sionally employed, no action will lie (/). A master
is also entitled to an action against a stranger who
harbours his apprentice or servant, even after the de-
sertion of the apprentice; and in such a case the master
may waive the tort and bring assumpsit against a stranger
for the work and labour of his apprentice (g) ; but the new
master would not be liable to such an action if he did not
know that the apprentice had deserted, or unless he after-
wards refused to restore such apprentice or servant upon
request (A). A master can also maintain an action against
a stranger for causing or procuring his servant to leave
him, or to break his contract, whether the employment
has actually commenced or is only in fieri, and even
although the strict relationship of master and servant
was not subsisting (i).
Drowning By the 13th Geo. II. c. 21, treble damages may be sued
and mines. f r an d recovered by action of debt against any person who
shall unlawfully, wilfully, and maliciously divert or cause to
be diverted (j\ water from any river, brook, water-course (A 1 ),
channel, or land flood, or convey or cause to be conveyed
water into any coal-work, mine, pit, or delph of coal, or into
any subterraneous cavities or passages (/), or make or cause
(e) Harper v. Luffkin, 7 B. & C.
387.
(/) Thompson r. Eoss, 29 L.J.
Ex. 1.
O) Foster v. Stewart, 3 M. & S.
191.
(A) Blake v. Lanyon, 6 T.E. 221.
(z) Lumley v. Gye, 2 Ell.&B. 21G.
(j) Ante, p. 492.
ft) Ante, p. 484.
(/) Ante, p. 496.
SECT, ii.] MASTERS AND WORKMEN. 591
to be made any subterraneous cavities or passages with an
intention to damage such property ; and a similar right of
action is given against any person who shall destroy or
obstruct any sough or sewer (which had been a sough or
sewer in common for fifty years) made for draining any
coal-work, mine, pit, or delph of coal, or who shall attempt
or continue any such mischievous practice, or should aid
or assist therein in manner aforesaid; but the Act does
not apply to the owners of any such sough, drain, or
sewer.
592 PLEADINGS. [CHAP. xxu.
CHAPTER XXII.
PLEADINGS IN ACTIONS EELATING TO MINES, MINERALS,
AND QUARRIES.
BARRIERS.
For removing barriers whereby water flows into a
mine.
Firmstone v. Wheeley, 2 D. & L. 203; Shaw v. Stenton, 27
L.J. Ex. 253; Williamson v. Baird, 10 Jur. N.S. 154; ante, pp.
438, 503 ; post, " Trespass," p. 598.
CANALS.
Declaration for compensation to owners of mines
under a canal, the working whereof, the canal com-
pany prevented, and pleas.
Swindell v. Birmingham Canal Company, 9 C.B. N.S. 241 ;
Reg. v. Aire & Calder Navigation Company, 30 L.J. Q.B.
337.
COAL MINE.
Averring right to.
Midgley v. Richardson, 14 M. & W. 608.
COAL TRADE.
Plea, alleging an omission to deliver a ticket on deli-
very of the coals, in contravention of the 1 & 2
Will. IV. c. Ixxvi.
Meredith v. Holinan, 16 M. & W. 798 ; ante, p. 559.
COMMONS.
Disturbing surface and digging up the soil.
2 & 3 Will. IV. c. 71, s. 1 ; Carr v. Foster, 3 Q.B. 581 ; Ricketts
v. Salwey, 2 B. & Aid. 360 ; ante, p. 188.
CHAP. XXIL] PLEADINGS. 593
Plea of a right to dig for minerals.
Paddock v. Forrester, 3 M. & G. 903 ; Clayton v. Corby, 2 Q.B.
813.
Customary right to dig coals.
Anglesey v. Hatherton, 10 M. & W. 218 ; Wilkinson v. Proud,
11M. &W. 33.
To take sand and marl.
Blewett v. Tregonning, 3 Ad. & Ell. 554 ; Glover v. Dixon, 9 Ex.
158; ante, p. 328.
Plea of a prescriptive right to search for minerals.
1 Wins. Sannd. 345 (2) ; 2 & 3 Will. IV. c. 71, ss. 1, 5.
Schedule B. 47, Common Law Procedure Act, 1852.
Blackett r. Bradley, ante, p. 189.
CONDITION PRECEDENT.
How to be pleaded.
Friar v. Grey, 15 Q.B. 891 ; and see 5 Ex. 584.
CORNISH CUSTOMS.
Plea of a local custom to throw away sand and rubble
raised in the working of a mine, into a natural
stream.
Carlyon v. Lovering, 26 L.J. Ex. 251 ; ante, pp. 340, 379.
COST BOOK SYSTEM
Must be pleaded in order to give the party relying
upon it the benefit of the custom.
Ante, pp. 340, 379.
COVENANTS.
Declaration on a covenant in a lease to pay a certain
sum for fixed and tonnage rents, with pleas and
replication.
Perry v. Attwood, 25 L.J. Q.B. 408 ; ante, p. 296.
Equitable plea.
Mines R. Societies v. Magnay, 10 Ex. 489.
CROWN.
Pleading right to work mines by custom against the
crown.
Ante, pp.96, 404, 437.
CUSTOMS.
Illegal custom.
Broadbent v. Wilkes, ante, p. 329.
2Q
594- PLEADINGS. [CHAP. xxii.
Averring right to search for minerals generally.
Paddock v. Forrester, 3 M. & G. 903; 2 & 3 Will. IV. c.
71, s. 5.
To search for minerals in the lands of another.
Hilton v. Lord Granville, 5 Q.B. 703; ante, pp. 327, 331;
Rogers v. Brenton, 10 Q.B. 26; Constable v. Nicholson, 14 C.B.
N.S. 230 ; ante, p. 328.
Declaration, for throwing sand and rubbish into a
stream and polluting it. Pleas of a prescriptive
right to do so.
Carlyon v. Lovering, 26 L.J. Ex. 251 ; ante, pp. 327, 333.
Plea of a right to raise coals.
Anglesy v. Hatherton, 10 M. &W. 218; Wilkinson . Proud,
11M. & W.33.
To search for and take sand and marl.
Blewett v. Tregonning, ante, p. 327; Glover v. Dixon, 9
Ex. 158.
EASEMENT.
A declaration as well as a plea should aver the extent
of the right.
Midgley v. Richardson, 14 M. & W. 608 ; ante, p. 508.
Count against a lessee of an easement on land.
Martyn v. Williams, 1 H. & N. 817 ; ante, p. 440 ; Peyton v.
Mayor of London, ante, p. 457.
FENCES.
Count for not repairing a fence.
Rooth v. Wilson, 1 B. & Aid. 59 ; Roberts v. Great Western
Railway Company, 27 L.J. C.P. 266 ; ante, pp. 212, 265.
For not fencing shafts to a mine.
Sybray v. White, 1 M. & W. 435.
For not fencing quarries.
Hounsell v. Smith, ante, p. 263.
Plea justifying a trespass to remove fences under a
prescriptive right may be sustained.
2 & 3 Will. IV. c. 71, s. 5; ante, pp. 212, 265.
FIXTURES.
Count for preventing a lessee from removing fixtures,
there being a clause in the lease which allowed a
reasonable time after the expiration thereof, for the
removal.
Stansfield v. Portsmouth, ante, p. 321.
CHAP, xxn.] PLEADINGS. 595
Count for depriving the owner of fixtures, such as
machinery, machines, &c., and subsequent pleadings.
London & "W. L. & D. Co. v. Drake, 28 L.J. C.P. 297.
FOREIGN JUDGMENT.
How to be pleaded.
Frayes v. Worms, ante, p. 65 ; Munroe v. Pilkington, ante, p. 66-
LEASE.
To be pleaded as a deed.
Kollason v. Leon, 7 H. & N. 73.
LICENSE.
For conversion of ores, sand, and gravel, raised under
a license.
Northam v. Bowden, 11 Ex. 70.
MASTERS AND WORKMEN.
Count against a master for injuries sustained by the
workmen in the course of his employment.
Scott v. Mayor of Manchester, 1 H. & N. 59 ; Williams .
Clough, 27 L.J. Ex. 325.
For allowing the servant to work in a mine where
there was a dangerous shaft.
Mellors v. Shaw, 1 B. & S. 437.
For allowing machinery to be in a dangerous state.
Griffiths v. Gidlow, 27 L. J. Ex. 404; Senior v. Ward, 28 L.J.
Q.B. 139 ; Ashworth v. Stanwix, 30 L.J. Q.B. 183.
For wages due to the labourer. The common count
for work and labour is sufficient.
Grafton v. Armitage, 2 C.B. 336.
For inducing a workman or an apprentice to leave his
master's employ.
Hartley v. Cummings, 5 C.B. 247 ; Cox v. Muncey, 6 C.B.
N.S. 375.
For harbouring a servant or apprentice.
Sykes v. Dixon, 9 Ad. & Ell. 693.
Plea that plaintiff and defendant were engaged in the
same common employment.
Wiggett v. Fox, 25 L.J. Ex. 188 ; Griffiths v. Gidlow, 27 L.J. Ex.
404.
Plea that the foreman employed by the defendant was
a competent person.
Hutchinson v. York, Newcastle, & B. Ry. 5 Ex. 343.
2 Q2
596 PLEADINGS. [CHAP. xxn.
Plea that plaintiff was voluntarily assisting in the
work.
Degg v. Midland Railway Company, 1 H. & N. 773.
Pleas justifying a dismissal on the ground of miscon-
duct on the part of a workman.
Amor v. Fearon, 9 Ad. & Ell. 548.
MINERALS.
For the use of veins and minerals.
Jones v. Reynolds, 4 Ad. & Ell. 805.
MINES.
For breaking and entering a coal mine and taking and
carrying away the coals.
Morgan v. Powell, 3 Q.B. 278 ; Brains. Harris, 10 Ex. 908.
NUISANCE.
For making trenches or pits whereby personal damage
ensued.
Sadler v. Henlock, 4 Ell. & B. 571 ; Hardcastle v. South Y.
Ry. 4 H. & N. 67.
PRESCRIPTIVE RIGHTS.
Prescriptive rights, under 2 & 3 Will. 4, c. 71, s. 5,
should be pleaded according to the fact.
Welcome v. Upton, 5 M. & W. 398 ; Holford v. Hankinson, 5
Q.B. 584.
Plea alleging a right to work mines and quarries
which amounts to a destruction of the subject-mat-
ter, is bad.
Hilton v. Granville, 5 Q.B. 701 ; Blackett v. Bradley, 31 L.J.
Q.B. 65 ; ante, p. 451.
RAILWAYS.
Count against a railway company for compensation for
minerals, the removal of which by the owner being
likely to damage the works of the company.
Fletcher v. Great Western Railway, ante, p. 201.
For not repairing fences.
Ricketts v. East & West India Docks Company, 12 C.B. 160 ;
Bessant v. Great Western Railway, 8 C.B. N.S. 368 ; Elliott v.
North-Eastern Railway Company, ante, pp. 196, 476, 478.
For water flowing along a railway cutting and perco-
CHAP, xxii.] PLEADINGS. 597
lating through the bed of the railway into the mines
beneath.
Bagnall v. London & North- Western Railway Company, 31
L.J. Ex. 129.
SHAFTS.
For not properly fencing a shaft.
Sybray v. White, 1 M. & W. 435.
SHARES IN A MINE.
For not re-delivering foreign mining shares deposited
by way of loan, after payment of the loan.
Owen v. Routh, 14 C.B. 327 ; ante, p. 314.
Upon an implied indemnity against future calls.
Walker v. Bartlett, 17 C.B. 446.
SHARES.
For non-registry of shares, whereby they became
forfeited.
Catchpole v. Ambergate Railway Company, 1 Ell. & B. Ill ;
ante, p. 314.
Mandamus to register shares.
Copeland v. North-Eastern Railway Company, 6 Ell. & B. 277.
STATUTE OF LIMITATIONS.
How and when to be pleaded.
Smith v. Lloyd, ante, p. 155 ; McDonnell v. McKinty, ante,
p. 156.
SUPPORT TO BUILDINGS.
Declaration bad unless it states the grounds upon
which a house is entitled to the support of the
lands.
Hilton v. Whitehead, 12 Q.B. 734 ; ante, p. 472.
Declaration for digging, carelessly, negligently, unskil-
fully, and improperly.
Dodd v. Holme, 1 Ad. & Ell. 493 ; ante, p. 457 ; Stroyan v.
Knowles, 6 H. & N. 454.
For taking away support to buildings.
Langford v. Woods, 7 M. & G. 625 ; Brown v. Windsor, 1 C.
& J. 20; Hide v. Thornborough, 2 C. & K. 250; Wyatt r.
Harrison, ante, p. 472 ; Solomon v. Vintners' Company, 28 L.J.
Ex. 370 ; Hunt v. Peake, 29 L.J. Ch. 785.
SUPPORT TO LANDS.
Declaration for carelessly, negligently, and impro-
perly digging and working for minerals, whereby
598 PLEADINGS. [CHAP. xxn.
the support to the surface is withdrawn. Pleas of
a reservation of mines by deed.
Harris v. Ryding; ante, p. 459 ; Stroyan v. Knowles, 6 H. & N.
454.
For taking away subjacent support in the course of
mining.
Humphries v. Brogden, 12 Q.B. 743 ; Smart v. Morton, 24 L.J.
Q.B. 260 ; Adams v. Lloyd, 27 L.J. Ex. 499 ; Bonomi v. Back-
house, 27 L.J. Q.B. 378 ; 28 L.J. Q.B. 378 ; Elliott v. North-
Eastern Ky. Co. ; ante, pp. 469, 478.
For taking away adjacent and subjacent support.
Nicklin v. Williams, ante, p. 570 ; Rogers v. Taylor, ante, p.
466 ; Richards v. Rose, 9 Ex. 218 ; Browne v. Robins, 28 L.J. Ex.
250 ; ante, p. 468.
TENANTS IN COMMON.
Action (inter se).
Ante, p. 169 ; Cresswell v. Hedges, 31 L.J. Ex. 497.
TIN BOUNDING.
Eight to bound tin, pleaded in
Reg. v. Crease, 11 Ad. & Ell. 677 ; ante, p. 367 ; Crease v. Sawle,
2 Q.B. 862 ; Doe d. Earl Falmouth v, Alderson, ante, p. 367 ; R.
v. Paynter, 7 Q.B. 273 ; Vice v. Thomas, ante, p. 369 ; Rogers
v. Brenton, ante, pp. 347, 365, 370.
.-
TRESPASS.
For breaking into and entering a mine and carrying
away the minerals.
Morgan v. Powell, 3 Q.B. 278; Brain v. Harris, 10 Ex. 908.
For removing barriers of coal.
Firmstone v. Wheeley, 2 D. & L. 203 ; Shaw v. Stenton, 27
L.J. Ex. 253.
A plea justifying the pulling down of premises in which
persons are residing, not good, without alleging notice
to remove the nuisance.
Perry v. Fitzhowe, 8 Q.B. 757, 764; Davies v. Williams, 16
Q.B. 555.
Plea justifying trespass under a grant to take minerals.
Roberts v. Davey, 4 B. & Ad. 664; Lewis v. Branthwaite, 2 B.
&Ad. 437; ante, p. 175.
Justifying under a prescriptive title to mines and
quarries, the right to dig and raise minerals through
the quarries.
Dand v. Kingscote, 6 M. & W. 174 ; Rogers v. Taylor, 26 L.J.
Ex. 203.
CHAP, xxn.] PLEADINGS. 599
TROVER.
Count for conversion of the soil taken and carried
away.
Higgon v. Mortimer, 6 C. & P. 616; Player v. Roberts, ante,
pp. 173, 176 ; Burroughes v. Bayne, 29 L.J." Ex. 185.
For conversion of the minerals.
Rowe v. Brenton, ante, p. 176.
For conversion of sand and gravel mixed with ores.
Northam v. Bowden, 11 Ex. 70.
WASTE.
Declaration for allowing premises which defendant
was bound to keep in repair to fall into decay.
Jones v. Hill, 7 Taunt. 392 ; ante, p. 253.
For cutting down, damaging, and destroying trees.
Martin v. Gilham, 7 A. & E. 540.
For digging for minerals.
Ante, pp. 159, 176, 253.
Voluntary Waste.
Ante, p. 253 ; Kinlyside v. Thornton, 2 Wm. Bl. 1111 ;
Young v. Spencer, 10 B. & C. 145; Huiitley v. Russell, ante,
p. 256.
Permissive waste, does not always lie against a lessee.
Ante, pp. 159, 167 ; Herne v. Bembow, 4 Taunt. 764 ; Gibson v~
Wells, 1 Bos. & Pul. N.R. 290.
WATER-COURSES.
For the use of a stream of water.
Davis v. Morgan, 4 B. & C. 8 ; ante, p. 484.
For injury to the plaintiff's natural right to the flow of
water.
Hall v. Swift, 4 Bing. N.C. 381; Northara v. Hurley, 1 Ell.
& B. 665 ; Insole v. James, 1 H. & N. 243.
Declaration alleging a right to underground springs
and water-courses ; pleas traversing the right.
Acton v. Blundell, 12 M. & W. 347 ; ante, p. 496.
For diminishing the force of a stream.
Blagrave v. Bristol Waterworks Company, 1 H. & N. 369.
For polluting water.
Murgatroyd v. Robinson, 7 Ell. & B. 391 ; Hipkins v. Birming-
ham Gas Company, 30 L.J. Ex. 60.
Count averring right to irrigate water.
Northamr. Hurley, 1 Ell. & B. 665; ante, p. 494.
600 PLEADINGS. [CHAP, xxn
Damages from water flowing along a railway cutting
and percolating through the bed of the rails into
the mines beneath.
Bagnall v. London & North- Western Railway Company, 7 H.
& N. 423.
For removing barriers, whereby water flows into a
mine.
Williamson v. Baird, ante, p. 592.
Plea of a right to discharge noxious water into a
stream.
Wright v. Williams, 1 M. & W. 77 ; Moore v. Webb, 1 C.B. N.S.
673 ; Carlyon v. Levering, 26 L.J. Ex. 251.
Pleas of a prescriptive right to water for certain spe-
cified purposes.
Wardt>. Robins, 15 M. & W. 237; Sampson v. Hoddinott, 1
C.B. N.S. 590.
WAYS.
Alleging a right to a way, and for obstructing the
way, with pleas.
South Metropolitan Cemetery Company v. Eden, 16 C.B. 42 ;
Benge v. Swaine, 15 C.B. 784 ; Worthington v. Gimson, 29 L.J.
Q.B. 116.
WATS AND WAY-LEAVES.
Plea of a reservation of a way and of the right to
grant a way-leave.
Durham & S. Railway Company v. Walker, 2 Q.B. 940; ante,
p. 506.
WORKING MINES.
Declaration and pleas for wrongfully and negligently
working mines, whereby the soil gave way and
injured the erections thereon.
Stroyan v. Knowles, 6 H. & N. 454 ; Hunt v. Peake, 29 L.J.
Ch. 785.
CHAP, xxiii.] CRIMINAL OFFENCES. 601
CHAPTER XXIII.
CRIMINAL OFFENCES.
Special provisions relating to mines,
24 t
cumstances that it the mine were thereby set nre to, the
offender would be guilty of felony, shall be guilty of
felony, and being convicted thereof shall be liable, at the
discretion of the court, to be kept in penal servitude for
any term not exceeding fourteen and not less than three
years ; or to be imprisoned for any term not exceeding two
years, with or without hard labour, and with or without
solitary confinement, and, if a male under the age of sixteen
years, with or without whipping" (f).
Setting fire Whosoever shall unlawfully and maliciously set fire to
to build- ail y building other than such as are in this Act before
mentioned, shall be guilty of felony, and being convicted
thereof shall be liable, at the discretion of the court, to be
kept in penal servitude for any term not exceeding fourteen
years, and not less than three years ; or to be imprisoned
for any term not exceeding two years, with or without hard
labour, and, if a male under the age of sixteen years, with
(A) Sec. 25; see 7 & 8 Geo. IV. c. (*) Sec. 26 ; 7 Will. IV. & 1 Vic. c.
30, sec. 23 ; also 14 & 15 Vic. c. 92, 89, sec. 9.; and 9 & 10 Vic. c. 25, sec. 9.
sec. 3 ; ante, pp. 212, 263, 594. 0') Sec. 27 ; 9 & 10 Vic. c. 25, sec. 7.
CHAP, xxni.] CRIMINAL OFFENCES. 605
or without whipping. This clause will include every
building not falling within any of the previous sections of
the Act ; and all those buildings which, not being within
the curtilage of a dwelling-house, and not falling within
any term previously mentioned, were unprotected before
this Act passed. The term "building" is no doubt very in-
definite, but it was used in the 9 & 10 Vic. c. 25, s. 1 ; and
it was thought much better to use that term alone, and
leave it to be interpreted as occasion might require.
" Whosoever shall unlawfully and maliciously cause any Conveying
water to be conveyed or run into any mine, or into any * ' ^ine^da-
subterraneous passage communicating therewith, with in- maging
tent thereby to destroy or damage such mine, or to hinder s
or delay the working thereof, or shall with the like intent
unlawfully and maliciously pull down, fill up, or obstruct,
or damage with intent to destroy, obstruct, or render use-
less, any air-way, water-way, drain, pit, level, or shaft of or
belonging to any mine, shall be guilty of felony, and being
convicted thereof shall be liable, at the discretion of the
court, to be kept in penal servitude for any term not
exceeding seven years and not less than three years ; or to
be imprisoned for any term not exceeding two years, with
or without hard labour, and with or without solitary con-
finement, and, if a male under the age of sixteen years,
with or without whipping : Provided that this provision
shall not extend to any damage committed under ground
by any owner of any adjoining mine in working the same,
or by any person duly employed in such working" (&).
" Whosoever shall unlawfully and maliciously pull down Damaging
or destroy, or damage with intent to destroy, or render use- en g' ne8 >
J [ . . \ . , . . waggon-
less, any steam-engine or other engine for sinking, draining, way, &c.
ventilating, or working, or for in anywise assisting in sink-
ing, draining, ventilating, or working any mine, or any
appliance or apparatus in connexion with any such steam or
other engine, or any staith, building, or erection used in
conducting the business of any mine, or any bridge,
waggon-way, or trunk for conveying minerals from any
(/fc) Sec. 28 ; 7 & 8 Geo. IV. c. 30, Reg. v. Foster, 4 Cox's C.C. 25 ; ante,
sec. 6, and 9 Geo. IV. c. 56, sec. 7 pp. 484, 590.
(L); Re S- v. Norris, 9 C. & P. 241;
606 CRIMINAL OFFENCES. [CHAP. xxm.
mine, whether such engine, staith, building, erection, bridge,
waggon-way, or trunk be completed or in an unfinished
state, or shall unlawfully and maliciously stop, obstruct, or
hinder the working of any such steam or other engine, or
of any such appliance or apparatus as aforesaid, with intent
thereby to destroy or damage any mine, or to hinder,
obstruct, or delay the working thereof, or shall unlawfully
and maliciously wholly or partially cut through, sever,
break, or unfasten, or damage with intent to destroy or
render useless, any rope, chain, or tackle, of whatsoever
material the same shall be made, used in any mine, or in or
upon any inclined plane, railway, or other way, or other
work whatsoever, in anywise belonging or appertaining to
or connected with or employed in any mine or the working
or business thereof, shall be guilty of felony, and being
convicted thereof shall be liable, at the discretion of the
court, to be kept in penal servitude for any term not
exceeding seven years and not less than three years ; or to
be imprisoned for any term not exceeding two years, with
or without hard labour, and with or without solitary con-
finement, and, if a male under the age of sixteen years,
with or without whipping" (Z).
Riotously " If any persons violently and tumultuously assembled to-
buildingsf gether to the disturbance of the public peace, shall unlaw-
engines, &c. fully and with force demolish, or pull down, or destroy, or
begin to demolish, pull down, or destroy, any house, stable,
coach-house, outhouse, warehouse, office, shop, mill, malt-
house, hop-oast, barn, granary, shed, hovel, or fold, or any
building or erection used in carrying on any trade or manu-
facture, or any branch thereof, or any building other than
such as are in this section before-mentioned belonging to
the Queen ; or any machinery, whether fixed or moveable,
prepared for or employed in any manufacture or in any
branch thereof, or any steam-engine, or other engine for
sinking, working, ventilating, or draining any mine, or any
staith, building, or erection used in conducting the business
of any mine, or any bridge, waggon-way, or trunk for con-
(0 Sec. 29 ; 7 & 8 Geo. IV. c. 30, 23 & 24 Vic. c. 29, sec. 1 ; Reg. v.
sec. 7; 9 Geo. IV. c. 56, sec. 8, and WMttingham, 9 C. & P. 234.
CHAP, xxiii.] CRIMINAL OFFENCES. 607
veying minerals from any mine, every such offender shall
be guilty of felony, and being convicted thereof shah 1 be
liable, at the discretion of the court, to be kept in penal
servitude for life, or for any term not less than three years,
or to be imprisoned for any term not exceeding two years,
with or without hard labour, and with or without solitary
confinement" (w).
" If any persons riotously and tumultuously assembled to- Riotously
gether to the disturbance of the public peace, shall uulaw- mhi eS)
fully and with force injure or damage any stable, coach- engines, &c.
house, outhouse, warehouse, office, shop, mill, malthouse,
hop-oast, barn, granary, shed, hovel, fold, building, erec-
tion, machinery, engine, staith, bridge, waggon-way, or
trunk, as is in the last preceding section mentioned, every
such offender shall be guilty of a misdemeanor, and being
convicted thereof shall be liable, at the discretion of the
court, to be kept in penal servitude for any term not exceed-
ing seven years and not less than three years, or to be im-
prisoned for any term not exceeding two years, with or
without hard labour, provided, that if upon the trial of any
person for any felony in the last preceding section men-
tioned, the jury shall not be satisfied that such person is
guilty thereof, but shall be satisfied that he is guilty of any
offence in this section mentioned, then the jury may find him
guilty thereof, and he may be punished accordingly" (n).
This clause is intended to provide both for cases where
there is no sufficient evidence of an intention to proceed to
the total demolition of the house, &c., and also for cases
where no such intent ever existed, provided there be a riot
and injury done, within the terms of the clause. The
latter part of the clause enables the jury who try an indi-
vidual for any felony mentioned in the preceding section,
to convict of the offence created by this clause, if they are
not satisfied that an offence within the preceding clause is
satisfactorily proved.
(m) Sec. 11 ; see also 7 & 8 Geo. 2 ; Rex v. Thomas, 1 Russ. C. & M.
IV. c. 30, sec. 8 ; 23 & 24 Geo. III. c. 270 ; 4 C. & P. 237 ; Rex v. Price, 5
20, sees. 7, 8; & 27 Geo. III. c. 15, C. & P. 510; Rex v. Batt, 6 C. & P.
sec. 5; Barwell v. Winterstroke, 19 329; Reg. v. Howell, 9 C. & P. 437;
L.J. Q.B. 206. Reg. v. Adams, 1 C. & M. 299.
(n) See 1 & 2 Will. IV. c. 44, sec.
608 CRIMINAL OFFENCES. [CHAP. XHI.
Appre- The apprehending of persons committing any offence
offemfefs. specified in 24 & 25 Vic. c. 97, is provided for by the 61st
section of that statute, and is as follows : " Any person
found committing any offence against this Act, whether
the same be punishable upon indictment or upon summary
conviction, may be immediately apprehended without a
warrant, by any peace officer, or the owner of the property
injured, or his servant, or any person authorized by him,
and forthwith taken before some neighbouring justice of
the peace to be dealt with according to law" (o).
24 & 25 By section 26 of 24 & 25 Vic. c. 100, it is provided that,
Vic. c. 100. Whosoever, being legally liable, either as a master or
mistress, to provide for any apprentice or servant necessary
Masters food, clothing or lodging, shall wilfully and without lawful
and work- ^
men. excuse refuse or neglect to provide for the same, or shall
unlawfully and maliciously do or cause to be done any
ill-treat- bodily harm to any such apprentice or servant, so that the
life of such apprentice or servant shall be endangered, or
the health of such apprentice or servant shall have been or
shall be likely to be permanently injured, shall be guilty of
a misdemeanor, and being convicted thereof shall be liable,
at the discretion of the court, to be kept in penal servitude
for the term of three years, or to be imprisoned for any
term not exceeding two years, with or without hard la-
bour" (p).
Ireland and All the before-mentioned statutes apply to Ireland as
Scotland. we jj as England, but not to Scotland, unless where other-
wise expressly provided.
MAN- When a person is in a public situation, having certain
SLAUGHTER d u tj es t o perform, and especially when on their performance
or non-performance depend the safety or insecurity of other
people, then the public have a right to expect a greater de-
gree of caution than under other circumstances would be
(o) Similar clause in 7 & 8 Geo. (p) See similar clause 14 & 15 Vic.
IV. c. 30, sec. 28; 9 Geo. IV. c. 56, c. 11, sec. 1.
sec. 35; Reg. v. Fraser, 1 Mood. C.C.
419.
CHAP, xxm.] CRIMINAL OFFENCES. 609
required ; the culpable neglect of such duties whereby Man-
death ensues, will sustain a criminal charge of manslaughter.
In the case of Rex v. Haines, it was the duty of the defen-
dant, as ground bailiff of a mine, to cause the mine to be
properly ventilated by causing air-headings to be put up
where necessary ; the bailiff neglected this part of his duty,
in consequence whereof a person was killed by an explosion
of fire-damp, and on a trial of the delinquent for man-
slaughter, the learned judge who tried the cause, directed
the jury to find a verdict of guilty if they thought there
was a want of ordinary and reasonable precaution in not
providing the air-headings (q). The same principle was
laid down in the case of Reg. v. Barrett (r).
In another case, the prisoner was indicted for man-
slaughter, the offence being occasioned by the falling of a
truck full of bricks into the shaft of a mine where the
deceased was at work, it being the duty of the prisoner to
have placed a stage over the mouth of the shaft, which he
neglected to do, and the judge left it to the jury 7 to say
whether the accident happened through the negligence of
the prisoner, the jury found in the affirmative, and the
Court of Criminal Appeal affirmed the conviction (s).
In the case of Reg. v. Lowe, the prisoner was charged
with manslaughter for allowing a boy to perform a duty in
reference to the raising and letting down a skip or basket
for the accommodation of the workmen, which it was the
duty of the prisoner to have performed. The prisoner was
found guilty, and Lord Campbell said, in reference to that
case, " that an act of omission, as well as of commission,
may be so criminal as to be the subject of an indictment
for manslaughter" (t).
2 C. & Kir. 368. (<) 7 Cox's C.C. 301 .
2 C. & Kir. 343. (0 4 Cox's C.C. 449 .
610 PRECEDENTS FOR [CHAI-. xxiv-
CHAPTEE XXIY.
PRECEDENTS FOR LICENSES AND LEASES.
PAGE
1. LICENSE TO SEARCH FOR MIHERALS . . . 610
2. LEASE OF A TIN, COPPER, OR LEAD MINE . . .611
3. LEASE OF COAL MINES IN THE NORTH OF ENGLAND . 624
4. LEASE OF A COLLIERY AND OF THE SURFACE AND AD-
JOINING LANDS IN WALES .... 652
5. LEASE OF QUARRIES OF LIMESTONE AND OF LANDS . . 669
6. LEASE OF A LIMESTONE QUARRY . . . 678
7. LEASE OF A WAY-LEAVE . . . . 679
S. LEASE BY DIRECTION OF THE COURT OF CHANCERY . 681
9. LEASE UNDER A POWER . . . . 682
10. LEASE UNDER A POWER, THE LESSOR BEING ALSO
TENANT FOR LIFE ..... 683
11. LEASE UNDER A POWER AND IN PURSUANCE OF AN
AGREEMENT ENTERED INTO WITH A DECEASED, THE
LESSOR BEING ALSO TENANT FOR LIFE . . . 684
LICENSE TO SEARCH FOR MINERALS.
CHARLES TREVELYAN, of , in the county
of , Esq., hereby gives and grants to Paul
Williams, of , in the county aforesaid, miner, full,
exclusive (a), and irrevocable license and authority to
search for tin, copper, lead, and all other minerals, for the
period of one year, of, in, and throughout All that estate
called , situate in the parish of , in
the county aforesaid, now in the occupation of ,
upon the following terms, that is to say : that the said Paul
(a) Ante, p. 311.
CHAP, xxiv.] LICENSES AND LEASES. 611
Williams forthwith commences and, during the aforesaid
time, continues to explore the said lands and search for the
minerals therein, in a skilful and workmanlike manner :
that the said Paul Williams do and shall pay unto the said
Charles Trevelyan one-eighteenth part of all monies arising
from the minerals which shall be gotten and sold from the
said estate, immediately after every such sale, without any
deduction for rates or taxes, property -tax only excepted:
That the said Paul Williams do make ample compensation
for all damages or injury which may be occasioned to
the said estates, and the crops and cattle thereon, or the
adjoining estates ; such compensation to be fixed by the
toller or agent for the time being of the said Charles
Trevelyan, his heirs or assigns, in case the parties differ
about the same : Thaty provided the said lands have,
during the period aforesaid, been effectually worked and
explored, and the said Paul Williams, at or before
the expiration of the said period, obtains such a com-
pany of adventurers for carrying on the said mines, as
shall be satisfactory to and approved of by the said Charles
Trevelyan, then the said Paul Williams shall be entitled to
a lease for the term of twenty-one years, to be granted
by the said Charles Trevelyan to such of the adventurers
who may propose to carry on the said mine, as the said
Charles Trevelyan may nominate for that purpose, on the
terms aforesaid, and subject thereto, to such other excep-
tions, covenants, clauses, and provisions, as are usually
inserted in mining leases granted by the said Charles
Trevelyan, for the manor of
Dated this day of , 1864.
LEASE OF A TIN, COPPER, OR LEAD, MINE.
TJiis Indenture, made the day of , 1864,
Between Walter Molesworth St. Aubyn, of , Esq.,
hereinafter called the " lessor," of the one part, and William
Harris and Richard Thompson, both of , gentlemen,
hereinafter called the " lessees," of the other part, Witnesseth
2R2
612 PRECEDENTS FOR [CHAP. xxiv.
that in consideration of the rents, reservations, covenants,
and conditions hereinafter mentioned, on the part of the
said lessees, to be paid, observed, and performed: The
said lessor doth give and grant unto the said lessees
license, power, and authority at all times during the con-
tinuance of this demise, to dig, work, mine, and search for
Parcels de- tin, copper, lead, and all ores, metals, and minerals, in and
)ec ' throughout All that part of the manor of , situate
within the parish of , in the county of , com-
prised within the following limits (that is to say) : From a
stone post, marked P. 1, placed in the north-west corner of a
garden situate on the right-hand side of the road leading
from to , in the occupation of , and
from thence to a stone post, marked P. 2, placed in the
western hedge of , being the northern boundary
of the said manor of , from thence eastward by
the line of stone posts placed in the said to a stone
post, marked P. 3, situate near the boundary stone be-
tween the tenements of and , and
from thence south in a straight line to a stone post, marked
P. 4, placed in the hedge of a croft, part of the tenement
of , in the occupation of , and from
thence in a westerly direction to a stone post, marked P. 5,
placed in a field, part of the tenement of , in the
occupation of , and from thence in a straight
line to a stone post, marked P. 6, placed in a field, part of
the tenement of , in the occupation of ,
and from thence by the hedge of the same field to the
centre of the and road, and from thence, to the
aforesaid stone post marked P. 1. All which said pre-
mises are now in the several occupations of , and are
hereinafter denominated or referred to by the word "limits."
Another {All those several fields of the said lessor situate within
of e p C arcelT the P ai%isl1 f > in tllS Said C0untv f >
and in the Tithe Commutation Map of the said parish,
numbered respectively 41, 56, 97, .... and in and
throughout parts of all those several other fields of the said
lessor, numbered respectively in the said map 92, 95, and
which said fields and parts of fields are more particularly
CHAP, xxiv.] LICENSES AND LEASES. 613
delineated in the map or plan hereon endorsed, and therein
coloured blue, and are now in the occupation of ,
as tenant to the said lessor, and are hereinafter referred to
by the word " limits.")
And the tin, copper, lead, and all other ores, metals, Liberties
and minerals which shall be gotten or found within the t
limits aforesaid, there to raise and bring to grass,
and then to spall, stamp, and make merchantable and fit
for sale, and (subject to the reservations, covenants,
and conditions hereinafter contained) to carry away and
dispose of the same to their own use, and to dig and make
any adits, drifts, shafts, pits, leats, or other conveni-
ences, and to erect any houses, sheds, engines, or other
machines or buildings within the limits hereby granted for
working the mines intended to be carried on therein, and
to make such and so many waggon-roads or railroads, or
any other roads necessary, which may be necessary or proper
for the carrying away of the ores or materials, or for the
exercise of the license, liberties, powers, and authorities
hereby given ; and to raise, dig, and get stone, sand, brick-
earth, or clay, for the erection of any building or for any of
the purposes aforesaid, doing as little damage as possible in
the exercise of the several liberties and powers hereby
granted, and not interfering with any former lease now sub
sisting, and paying for any destruction or damage to the
surface of the lands as herein provided. Reserving unto the Reserva-
said lessor all waters and water-courses, with liberty to con- 1(
vey the same or any other waters and water-courses through
or over the said limits or any part thereof, or any adits or
drifts therein for any purpose whatsoever, not inconsistent
with or derogatory from the powers, liberties, licenses, and
authorities hereby given and granted. And also reserving
unto the said lessor and his and their agents liberty at all
times to go down into and through the said mine and
workings for the purpose of inspecting the same, and to dial,
examine and measure the same, and for those purposes to
make use of any of the machinery and tackle employed or
used in the said mine. And also liberty at any time to
enter into and upon any of the limits aforesaid for the
614 PRECEDENTS FOR [CHAP. xxiv.
purpose of examining the state and condition of the mines
and works erected thereon, and for inspecting the said
ores, metals, and minerals which may from time to
time be raised to the surface, in order to see that
the same are properly spalled, rendered fit for, stamped,
dressed, and made merchantable and fit for sale. And
also free liberty at any time for the said lessor and his
and their workmen and agents to make from any part of
the said limits at or above the level of the deepest adit
therein, any adits or drif ts with shafts necessary and proper
for driving and continuing the same, into any other lands
of the said lessor, or as far as he or they lawfully may, into
the lands of any other person or persons whomsoever, and
Haben- to keep open, repair, and use the same. To have, use,
exercise, and enjoy the said several liberties, licenses, powers,
and authorities hereby granted (subject as aforesaid), toge-
ther with all and singular way, water-courses subject as
aforesaid, and the appurtenances, unto the said lessees for
the term of years from the day of , deter-
Kedden- minable nevertheless as hereinafter mentioned. Yielding
and paying unto the said lessor, as and by way of rent, the
sum of 50 (b), by equal half -yearly payments, on the
day of and the day of in each year during
the said term, the first payment to be made on the day
of next, free and clear from all rates, taxes, and im-
positions whatsoever (except property-tax), subject neverthe-
less to be reduced by any amount which shall have been
actually paid in each year under the reservation next here-
inafter contained, it being the intent and meaning of the
parties to these presents that a clear sum of not less than
shall be paid to the said lessor in each and every year
under and by virtue of these presents. And also yielding
and paying (c), as and by way of rent, unto the said
, one full part of all the monies for which
all the ores, metals, and minerals to be raised or gotten within
or from the said limits during the said term, shall be sold, or
contracted to be sold ; the said ores, metals, and minerals,
according to the nature thereof, being first well and truly
spalled, dressed, stamped, and rendered merchantable and
(6) Ante, p. 294. (c) Ante, pp. 294, 517, 621, 526.
CHAP, xxiv.] LICENSES AND LEASES. 615
fit for sale by and at the expense of the said lessees, before
the sale of aiif part thereof, and every such payment to be
made without any deduction or abatement whatsoever for
or in respect of any present or future taxes, charges, rates,
or assessments whatsoever (except property-tax), at the end
of two calendar months next after the sale of the same ores,
metals, and minerals.
(Rendering and delivering unto the said lessor, yearly and Another
every year during the continuance of the said term, one ^ eadendu
full part or share of all ores (d) to be from time to time
produced and obtained by the said lessees for the time
being from or out of the mines and premises hereby demised,
well and sufficiently washed, cleansed, and made fit for
smelting (e\ according to the best and most improved mode
practised within the said manor, free and clear from all
rates, taxes, and impositions now or hereafter to be imposed
by Act of Parliament or otherwise, and all other charges and
expenses whatsoever relating thereto (except property-tax).
And the said lessees do hereby covenant (/) with the Covenants,
said lessor, in manner following, that is to say : That they, To pay
the said lessees, will pay unto the said lessor the said several re
rents, royalties, sum and sums of money hereinbefore re-
served and made payable as aforesaid, upon the respective
days and times and in manner hereinbefore appointed for
payment of the same respectively, according to the true
intent and meaning of these presents, without any deduc-
tion or abatement whatsoever (except property-tax). And Taxes -
will at all times during the said term pay and discharge all
rates, taxes, charges, payments, assessments, and impo-
sitions whatsoever (except the grantor's property-tax) which
now are or at any time during the continuance of the said
term may be charged or imposed upon or in respect of the
said mines to be worked and carried on by virtue of these
presents, or the said rents or sums of money hereby re-
served and made payable, arid also all rent charges in lieu
of tithes charged upon or issuing out of such of the lands
comprised within the limits aforesaid, as he, the said lessee,
(d) Under this reservation, rates (e) Ante, p. 521.
are payable, ante, p. 515 ; also p. (,/") Ante, pp. 296, 305.
294.
616 PRECEDENTS FOR [CHAP. xxiv.
shall take possession of, use, or occupy, under the grant or
Effectually the powers or authorities herein contained. And that the
intoes" sa id lessees will forthwith begin, and afterwards during the
continuance of the said term, effectively and regularly
explore and try the lands within the limits aforesaid in a
proper and workmanlike manner, and carry on the said
mines agreed to be undertaken and prosecuted within the
limits aforesaid and the bottoms thereof, and every lode
therein discovered or to be discovered therein, according to
the most modem approved practice of good miners ; and
drive and keep forward all adits and levels of or belonging
to the said mines, and continue the same in their proper
directions, and with a due preservation of levels to the
extent of the limits aforesaid, with as many able-bodied
Lessor to men as can conveniently be employed therein. And also
worked that it shall be lawful for the said lessor, and without
limits. determining this demise as to the rest of the said limits, to
enter into, work, and carry on, for his and their own use
and benefit, such of the lodes and veins now or hereafter to
be discovered within the said limits as shall not be fully and
effectually \vrought by the said lessees by the space of two
calendar months, on giving to the said lessees, or leaving on
some part of the said limits (either before or after the ex-
piration of such two months), one calendar month's notice
in writing of his intention so to do, and for that purpose to
use all the levels, drifts, adits, or shafts then and there
being, and also to have the use and advantage of all such
ropes, engines, buckets, and other materials as shall then
Erection of ^g on fa e grj^ mme? a t pleasure, and gratis. And also
shall and will forthwith erect within the aforesaid limits (or
on the adjoining lands to be worked in connexion with
those limits) such good and sufficient engine or engines,
to be each equal at least to a inch cylinder, and
such other machinery as may be necessary for well and
effectually draining and constantly keeping drained and
cleared the deepest and lowest levels of the said mine,
and for opening and working the said limits to the bottoms
thereof in a proper and workmanlike manner, and accord-
ing to the most approved custom of good miners. And
CHAP, xxiv.] LICENSES AND LEASES. 617
shall and will, without intermission, pursue and sink, work,
and raise in the best and most effectual manner, and with
a sufficient number of able workmen, all such lodes, veins,
and branches of metals, ores, and metallic minerals now or
hereafter to be discovered within the said limits. And
also will work and continue to work, without intermission, Working
the engine now erected within the aforesaid limits respec- en g mes -
tively, so that the said mines may be carried on and
effectually wrought at all times during the said term
without interruption on account of water accumulating
therein, except the same be occasioned by accident or
unavoidable impediments. And will, at their own expense,
without any unnecessary delay, well and truly spall and
render fit for stamping, dress and make merchantable and
fit for sale, in a proper manner, and sell the said ores,
metals, and minerals, either by public sale or private con-
tract, for the best price or prices in money that can be
obtained for the same, giving unto the said lessor three
clear days' previous notice in writing of the time of such
proposed sale. And will not mix any of such ores, metals, or Mixing
minerals with those of any other mine, without leave in ores>
writing first obtained for that purpose, nor sample or sell
the same with such other ores; and will, during the said
term, give unto the said lessor, or to his or their known
agent, full three days' notice in writing of the time of every
sale of tin, copper, lead, or other ores, metals, or minerals
raised within the limits aforesaid. And also will during the Repairing
continuance of the said term keep all the engine-houses m
and other buildings erected or to be erected within the said
limits in substantial repair ; and well and sufficiently bind,
secure, repair, and keep open with timber and fixed stemples
and props, and by other good, effectual, and durable means,
all adits, levels, drifts, shafts, and other the workings
within the limits aforesaid ; and the same severally in such
repair and firmly bound, secured, and kept open and sup-
ported as aforesaid ; and the shafts effectually sollared ; and
the whole in good order for the further prosecution there-
of, will at the expiration or other sooner determination
of the said term peaceably and quietly leave and yield
618
PRECEDENTS FOR
[CHAP. xxiv.
Lessor's up (g). And also shall and will at the end or other sooner
purchase determination of this demise, leave all the engines, ma-
machinery, chinery, materials, and tackle thereunto belonging, and
being in and upon the mine, for the period of six months
next after the determination of this lease, within which
period the lessor shall have the option of purchasing* all or
any of the engines, machinery, materials, and tackle, which
are legally removeable by a tenant, at a valuation, but so
that no part of any engine shall be taken without taking
the whole ; the price of such of the said engines, ma-
chinery, materials, and tackle elected to be taken by the said
lessor, and the time of payment, to be ascertained in case of
dispute by arbitration, in manner hereinafter provided;
but if the said lessor do not elect to take at a valuation
as aforesaid the said engines, machinery, or other effects,
then it shall be lawful for the said lessees at any time
within six months next after notice in writing to that
effect to the said lessees given by the said lessor or his
agent, or, in default of such notice, within six months next
after such election might have been made as aforesaid,
notwithstanding the determination of the said lease, to enter
upon the said hereby demised premises for the purpose of
selling and removing the same, without being obliged to re-
pair any buildings which shall be necessarily destroyed or
Plans. injured in taking down and removing the same. And also
will once in every year (or oftener if required), at their
own expense, provide for and deliver to the said lessor or
his or their known agent, a correct plan and section of the
mines or works carried on and prosecuted for the time
being within the limits aforesaid, and of all lodes and
Names of vems therein respectively. And will whenever they shall
be called upon for that purpose, supply at their own ex-
pense, to the said lessor or his or their known agent, a per-
fect list of the names, places of abode, number of shares,
and interest of every adventurer concerned in the working
of the said mines. And also w r ill, during the said term,
keep upon some part of the said mines, true and regular
accounts in books, of all ores, metals, and minerals as afore-
(V/) Ante, pp. 299, 304.
turers.
Accounts.
CHAP, xxiv.] LICENSES AND LEASES. 619
said, which shall be raised or gotten within the limits afore-
said, and of the sales of all such ores, metals, and minerals,
and the names of the respective purchasers thereof, and of
all other matters and things relating to or concerning the
working of the said mines, and the disposal of the produce
thereof ; and permit and suffer the said lessor and his agents,
and other persons by him or them authorized, upon demand
at the counting-house of the mine, or at the house of the
purser, to examine and take copies of every book kept for the
use of the said mines, containing any account of the tin,
copper, and other ores, metals, and minerals raised or gotten
out of the said limits, and of the disposal, price, and value
thereof, or in any manner showing the produce of the said
mines and the receipts and expenditure thereof. And also will Preserva-
preserve and lay aside in heaps on some convenient place eart ij
for the use of the said lessor, all the meal, earth, and soil
which shall be dug up in the prosecution of the said ad-
venture, and shall not within twelve months after lay any
ores or rubbish thereon, within which time the lessor may
remove the same. And will at all times during the said term, Fences,
make and keep up sufficient fences (7t) round every shaft and
open part of any adit or workings, within the limits aforesaid,
and at the end or other sooner determination of the said term,
leave the same so fenced and the shafts effectually sollared.
And also will well and sufficiently repair every road, hedge,
and gate which may be injured. And also make such compen- Compen-
sation and satisfaction for all damage occasioned to the land satlon -
or premises, cattle or goods, of any tenant or occupier thereof
by working the said mines, the amount of such compensa-
tion to be fixed by arbitration, in manner hereinafter pre-
scribed. And also will upon demand, pay unto the said
lessor for every statute acre of all enclosed and cultivated
land within the limits aforesaid which shall be taken and
damaged by the said lessees for the purpose of working
and carrying on the said mines, the sum of 100 sterling,
and so in proportion for any less quantity of ground than
an acre; and for every statute acre of land of an in-
ferior description within the limits aforesaid which shall be
(h) Ante, pp. 213, 2G2, 547.
G20 PRECEDENTS FOR [CHAP. xxiv.
taken or used for the purpose aforesaid, the sum of 50
sterling, and so in proportion for any less quantity of
land than an acre, the amounts thereof respectively to be
paid as soon as the quantity of land shall from time to time
Fouling be ascertained. And will during the said term conduct and
rivers. convey away all the water which shall be drawn from the
said mine or the bottoms thereof, or used for dressing any
ores, or any other purpose whatsoever, so that the same
shall not flow into, nor in any way injure or foul the
streams of water or rivulets now running through the
estates of and ; and for this pur-
pose will make, provide, and erect all necessary leats, con-
duits, pipes, and launders at his own expense, and cleanse
and scour the said leats, conduits, pipes, and launders, as
often as occasion shall require ; and will not do or commit
any act, matter, or thing, whereby the same streams of
water or rivulets may be injured or fouled. And will not
Uestric- during the said term, sink any shaft or shafts, pit or pits,
tions as to ... & . J
shafts and within or upon any part ot the estates or , or
erections. ^ or either of them, now in the several occu-
pations of the said , or their tenants, or in
any lands of the said lessor, situate to the right and east-
ward of a certain road leading from to
aforesaid, or within seventy fathoms of a certain plantation
called , or either of them, or any part thereof,
nor bring or lay thereupon any tin, copper, lead, or other
ores, metals, or minerals, or mining or other materials, or
deads or rubbish, or other matter or thing whatsoever, nor
erect or build or make or permit or suffer to be erected, built,
or made within the said estates or places, any erections,
buildings, or paths whatsoever, nor do or permit or suffer
to be done any other act, matter, or thing, whereby or by
means whereof the surface or pasture thereof or any part
thereof shall or may be in anywise injured, defaced, da-
maged, or destroyed. And will not erect or build or suffer
to be erected or built, any burning-house or stamps on any
part of either of the said estates or places aforesaid. And
w ^ no * ^ rea k or enter, or in anywise injure or damage
ground. the surface of any homestead, orchard, or garden plot, or
CHAP, xxiv.] LICENSES AND LEASES. 621
ground on which farm-buildings or cottages are standing,
without leave in writing from the said lessor for that purpose
first had and obtained. And further, that it shall be lawful
at all times for the said lessor and his agents, either alone or
with any other person or persons, to go down into, examine
and measure, and ascend from all or any of the workings
of the said mines, and for that purpose to use the tackle
and other conveniences then and there being, and gratis.
And the lessor covenants (i) with the lessee in manner Covenants
following, that is to say: that he, the said lessor, bjtfhj^,^*
full power and authority to grant this present lease in
manner aforesaid according to the true intent and mean-
ing of these presents ; And that it shall be lawful for quiet en-
the said lessees for the time being, at all times during Jy ment -
the continuance of this lease, paying and performing
the rents, reservations, covenants, provisoes, and agree-
ments hereinbefore, on their part respectively contained,
peaceably and quietly (j) to possess and enjoy the said
several licenses, liberties, and privileges in manner afore-
said, for their own use and benefit, without any disturb-
ance, claim, or demand whatever, from or by the said
lessor, or any person lawfully claiming through or in trust
for him ; And that free, and clear, and well, and sum"- Free from
ciently defended and indemnified by the said lessor from j ncum -
and against all other estates, titles, debts, and incumbrances
whatever, either already or to be hereafter made, occasioned,
or suffered by the said lessor, or any person lawfully claim-
ing or to claim by or through him ; and further, that the Further
said lessor, and all other persons having, or claiming, or assurance -
who shall or may hereafter have or claim any estate or
interest in the said demised premises, or any part thereof,
under or in trust for him the said lessor, shall and will, in
any of the events aforesaid, from time to time, and at all
times hereafter, upon every reasonable request, and at the
proper costs and charges of the said lessees for the time
being, do and execute all such further and other lawful and
reasonable acts, deeds, things, conveyances, and assurances,
in the law whatsoever, for the further bettering and more
(*) Ante, p. 297. (j) Ante, p. 305.
PRECEDENTS FOR
[CHAP. xxiv.
Re-entry
in default.
perfectly demising the said premises hereby intended to be
demised, with their appurtenances in manner aforesaid, ac-
cording to the true intent and meaning of these presents, as
by the said lessees for the time being, or their counsel in
the law, shall be reasonably advised or required. Pro-
vided always, that if all or any part of the rent or royal-
ties hereinbefore reserved, or the monies hereinbefore
made payable to the said lessor shall at any time during
the said term be in arrear or unpaid by the space of thirty
days next after the same shall have become payable under
the reservations thereof hereinbefore respectively contained,
then, and as often as it shall so happen, it shall be lawful
for the said lessor or his agents for the time being, or any
person or persons on his behalf, to enter into and upon the
said mines within the limits aforesaid, and there to seize
and distrain all or any of the ores, engines, machinery,
goods, chattels, and personal effects which shall be then
and there found, and in due time after the same shall have
been so seized and distrained (unless the same rents and
monies so being in arrear, and all expenses incurred in and
about the distress shall be sooner paid), to cause the same
ores, engines, machinery, goods, chattels, and personal
effects, to be appraised and sold, or otherwise disposed of
according to law, as in cases of ordinary distresses for rent
in arrear ; and out of the proceeds of every such sale to re-
tain the said rents and monies so being in arrear, together
with all costs and expenses of and incidental to every such
distress ; rendering the surplus (if any) to the said lessees,
or paying the same to their credit at some banking-house in
Power for the said county. Provided also, that if the said rents
hereby reserved, or the monies hereby made payable, or
any part thereof, shall not be duly yielded or paid accord-
ing to the true intent and meaning of these presents, or
if the said lessees shall, at any time during the said term,
for two months consecutively, discontinue to work or re-
fuse or neglect to carry on the said mines in the most effec-
tual manner, according to the most approved practice of
good miners, and in conformity with the terms of this lease,
or shall fail to observe or perform the several covenants
lessor to
revoke
deed.
CHAP, xxiv.] LICENSES AND LEASES. 623
and conditions hereinbefore contained, or any or either of
them, and which on his and their parts respectively are, or
ought to be, observed, performed, and kept, then and thence-
forth and in any or either of the said cases it shall be lawful
for the said lessor by any deed or deeds under his hand to
revoke, countermand, and determine the several liberties,
licenses, powers, and authorities hereby granted ; and imme-
diately after notice in writing of such deed or deeds shall
have been delivered to the said lessees, or any or either of
them, or the purser, manager, or principal captain for the
time being of the said mines, or left for them or him re-
spectively, at their or his then or then last-known dwelling-
house or place of abode, or at the account-house, or other
public place upon or belonging to the said mines, this pre-
sent indenture, and the liberties, licenses, powers, and au-
thorities hereby granted, and every article, clause, matter,
and thing herein contained, shall cease, determine, and be
absolutely void, save and except as far as concerns and for
the purpose of enforcing any right of action which shall or
may have accrued to the said lessor or lessees respectively,
by reason of the breach or non-performance of all or any of
the covenants and conditions hereinbefore contained ; and
the said lessor shall be at liberty immediately thereupon, or
at any time thereafter, although no advantage may have been
taken of any previous instance of neglect or default, to take
possession of the said mines and premises, either personally
or by his or their known agent, and in the latter case, with-
out a regular power of attorney for that purpose, and the
same to have again, enjoy, and re-grant, as if these presents
had never been made, without being compelled to have re-
course to any suit at law or in equity to effect such purpose.
Provided also, that in case the said lessees shall be de- Power for
sirous of quitting or delivering up possession of the said ' essees . to
mine at any time before the expiration of the said term, lease.
and of such their desire, shall give to the said lessor six ca-
lendar months' previous notice in writing, signed by them,
or any or either of them ; then, and in such case, upon full
payment of all the dues or rent hereinbefore reserved, and
observance and performance of all the covenants and pro-
624 PRECEDENTS FOR [CHAP. xxiv.
visions herein contained on the part of the said lessee, this
present indenture, and the liberties, licenses, and authorities
hereby granted, shall, at the expiration of the same six calen-
dar months, cease, determine, and become absolutely void ex-
cept for the purpose of enforcing any rights of action which
shall have accrued to either of the parties hitherto by rea-
son of any breach of all or any of the covenants and agree-
ments hereinbefore contained.
Arbitra- -(Insert clauses for referring all disputes to arbitration;
also for obtaining a further lease, as at pages 650 and 651.)
lease " Provided, lastly, that the heirs and assigns of the said
Charles Trevelyan, hereinbefore called the lessor, and the
.Lessor . . .
"lessee" executors, administrators, and assigns of the said William
defined. Harris and Richard Thompson, hereinbefore called the les-
sees, shall be bound by and entitled to the benefit of these
presents, and the covenants, conditions, provisoes, and
agreements herein contained, in like manner as if they had
been respectively named therein throughout next after the
words " lessor " and " lessees," respectively, as far as the
same will admit, and unless the context or the nature of
the case may require a different construction.
In icitness whereof the said parties to these presents
(written or engrossed on skins or pieces of parchment)
have hereunto set their hands and seals the day and year
first above written.
LEASE OF COAL MINES IN THE NORTH OF ENGLAND.
This Indenture, made the day of , A.D.
1864, between Richard Fenwick, of , Esq., herein-
after called the " lessor," of the one part, and Alfred
Wilkinson, of , merchant, hereinafter called the
" lessee," of the other part, Witnesseth that in consideration
of the rents and sums of money, covenants, provisoes, and
agreements, hereinafter respectively reserved and contained,
and by or on the part of the said lessee to be paid, observed,
CHAP, xxiv.] LICENSES AND LEASES. 625
and performed respectively, he, the said lessor, doth hereby
grant and demise unto the said lessee, All and every the Desc
mines and seams of coals (&) situate within or under, or
which can or may be had, wrought, or gotten, in, from, or
out of All those fields, containing about fifty acres, being
part and parcel of an estate called , situate
within the township of and parish of , in
the county of Durham, and which said fields are delineated
and coloured blue on the plan endorsed on the first skin of
these presents. Together with full power and authority to Powers to
and for the said lessee, subject to the restrictions, provisoes,
and covenants hereinafter contained, in and upon the lands
aforesaid, to dig, sink, drive, and make pits, shafts, trenches, T O (li & an(l
graves, drifts, air-courses, water-gates, water-courses, as well s h a ft s .
for the winning, working, and getting of coals, in, forth,
and out of the said mines and seams hereby demised, and
all or any other mines or seams in or by the use or exercise
of the powers in that behalf hereinafter contained, as for
the draining and ventilating the said respective mines and
seams or any of them ; and also liberty and power of out- Outs . trok(>f5
stroke and instroke, from and out of, and to and into all or strokes.
any of the mines or seams hereby demised, to and into, or
towards and from, and out of all or any other mines or
seams now belonging to or worked by, or hereafter during
the continuance of this demise to belong to, or be worked
by the said lessee, without leaving any barrier between the
mines or seams hereby demised, and such other mines or
seams or any of them, unless the said lessee shall think
proper so to do ; and liberty and power by means of all or
any of such outstrokes or instrokes to win and work coals
out of any such other mines or seams as aforesaid, and to
draw and bring the same to bank at all or any of the pits
or shafts of the mines and seams hereby demised, to be
sunk or made in the lands hereinbefore described or any
part thereof, or to lead away underground the same coals
or any part thereof, and also all or any coals the produce
of the mines or seams hereby demised to or towards any
other pits or shafts whatsoever, wheresoever situate ; so
(K) Ante, p. 292.
2s
626
PRECEDENTS FOR
[CHAP, xxiv
To make
coke.
Surface
accommo-
dation.
always that in making and using the said outstrokes and
instrokes respectively the said mines, seams, and premises
hereby demised, or any of them, be not drowned or destroyed
or overburthened with water, foul air, or styth, and so also
that as little damage be thereby done to the said last-men-
tioned mines or seams and premises as the nature of the
case will admit. Together also with full liberty and power
for the said lessee in or upon the lands aforesaid, but sub-
ject as aforesaid, to build coke-ovens or furnaces, and
thereat to manufacture and burn into coke or cinders any
coals to be wrought or gotten forth or out of the mines or
seams of coal hereby demised, or out of any such other
mines or seams, by means of such outstrokes or instrokes as
aforesaid. And also to have and use sufficient and con-
venient heap room, ground room, and pit room, for laying
all such coals, stones, gravel, and earth, as shall from time
to time be gotten and brought to bank, as well forth and
out of such other mines and premises as aforesaid by the
means aforesaid, as forth and out of the said mines and
premises hereby demised, and the coke to be made from
such coals respectively ; and also full and sufficient way-
leave and passage to and for the said lessee both under-
ground and upon and over the surface of the lands herein-
before described (but subject as aforesaid), to take, lead,
carry away, and sell, with horses, carts, waggons, or any
other carriages, not only all or any of the coals to be by
the said lessee wrought and gotten in and out of the said
mines and premises hereby demised, but all or any of the
coals to be by him wrought and gotten in and out of any
such other mines or premises as aforesaid by the means
aforesaid, and the coke to be made from the said coals
respectively, and for that purpose or for the purpose of
conveying colliery or mining materials, to or from or for
the use of the said hereby demised and other mines and
premises respectively, to make and use railways, waggon-
ways, rail- w r ays, and other ways (/) or road within, over, and upon
the knds hereinbefore described, or any part thereof, but
in such situations only as shall be agreed upon by the said
(0 Ante, p. 506.
Way-
leaves.
To con-
struct
CHAP, xxiv.] LICENSES AND LEASES. 627
lessor and the said lessee, or their respective agents or col-
liery viewers, or in case of disagreement, then as shall be
determined by arbitration in manner hereinafter provided ;
and upon or for the use of such railways or other ways or
roads, to erect and use horses and stationary or locomotive
or other engines and rope, or other machinery or other
motive power at present known or of future invention.
And with full power and authority upon the said lands, Erection of
subject as aforesaid, to erect and build agents' and work- andJtmiid-
men's houses, engines, and engine-houses, workshops, store- ings.
houses, granaries, stables, sheds, and all other necessary
erections and buildings, for drawing or raising of coals or
water, or for the standing of horses, and laying and placing
of coals, coke, and rubbish, and workmen's and other ma-
terials, to be used or employed in or about the said mines
and premises hereby demised, and such other mines as
aforesaid, for the time being wrought or carried on by the
means aforesaid, and for all other necessary and usual col-
liery purposes, for or in connexion with the said respective
mines and premises and the use or exercise of the powers
and liberties hereby granted or any of them, so always that
no erections or buildings be made or set up by virtue of
the powers herein contained within two hundred yards of
any farm, onstead, or dwelling-house, at present or hereafter
to be erected upon the said lands, and so that as little
damage be done as reasonably may be to the said lands,
and so that such coke ovens, workmen's or agents' houses
shall be built in such numbers and situations only as the
said lessor from time to time by any writing under his
hand may permit or allow. And also power and liberty in To work
and upon the said lands, subject as aforesaid, to dig and quai
get clay, and to make and burn bricks and tiles, and to win
and work quarries of stone and lime, and to burn liine, and
to get earth, soil, and rubbish ; such bricks and tiles, stone,
lime, earth, soil, and rubbish respectively to be used or em-
ployed only for or in the exercise of the powers and liber-
ties herein contained or some of them, but not for sale or
any other use or purpose whatsoever ; and generally full General
power and authority to do all and whatsoever shall be neces- P wer3
2 s2
628
PRECEDENTS FOR
[CHAP. xxiv.
Reserva-
tions to
lessor.
Of mines
not de-
mised.
Use of
ways.
Way-
leaves.
Ways,
railway:
sary or convenient, for, in, or about the winning, working,
and getting and vending of coals, in, out of, and from, the
said demised mines and premises, and such other mines and
premises as aforesaid, by the means aforesaid, and the
making and vending of coke therefrom respectively, and
the effectual exercise, use, and enjoyment of the powers
and liberties herein contained, and every or any of them,
subject always and without prejudice to the restrictions,
qualifications, and covenants herein contained, except and
aliuays reserved unto the said lessor, full and free right,
power, and liberty, to bore or otherwise search for, win, and
work, and to cany away the produce of all or any quarries
of stone, mines, and seams of ironstone, fire clay, and other
minerals and substrata whatsoever, in or under the said
lands hereinbefore described other than the mines and
seams of coal hereby demised. And also to pass and repass
over and across any railway or other way or road, to be
made or used by the said lessee by virtue of these presents,
on foot or horseback, or with or without horses, or other
animals, and carts or other carriages laden or unladen.
And also to have and use for any purpose or purposes, any
way-leave whatsoever both underground and upon the sur-
face, within, through, over, and along all and every or any
of the lands aforesaid, with liberty to make, lay, and place,
and use thereon or therein, any railways or other ways or
roads, and therewith to cross and intersect any railways or
other ways or roads to be made, laid, or used by the said
lessee, by virtue of these presents. And also except and
reserved to and for the said lessor, his servants, tenants,
and farmers, for the use, benefit, and improvement of
their lands, liberty and power to pass and repass upon and
along the railways and other ways or roads to be made or
used by the said lessee, by virtue of these presents, on foot
or on horseback, or with or without horses, or other animals,
engines, waggons, trucks, carts, or other carriages, laden or
unladen, such carnages and engines used on such rail-
ways or waggon-ways respectively having wheels properly
constructed for travelling on the same ways without
paying any compensation in respect thereof. And also
CHAP, xxiv.] LICENSES AND LEASES. 629
full power and liberty for the said lessor to use the Railways
railways and other ways to be made or used by the said
lessee, by virtue of these presents, as well for leading,
carrying, or conveying of coals and other colliery or mining
produce and materials, to and from or for the use of any
coal mines or other mines whatsoever, as for the conveyance
of passengers and purposes of general traffic, or for any
other purpose whatsoever, provided that all engines,
waggons, and carriages which shall be used for any of the
purposes of this present exception, have wheels properly
constructed for travelling on such ways, and that the said
lessor or his grantees or lessees shall make a fair compensa-
tion to the said lessee for the wear and tear of way occa-
sioned by the exercise of the liberties and privileges in this
exception contained, such compensation to be ascertained or
settled in case of difference by arbitration in manner here-
inafter provided. And also, except and reserved to the said
lessor full power and liberty to grant and demise all or any
of the said excepted and reserved powers and liberties, or
the use or exercise thereof, to any person or persons, com-
pany or corporation whomsoever or whatsoever. Provided
that in the exercise or use thereof, whether by the said
lessor or by his grantees or lessees, as little hindrance or in-
terruption as reasonably or conveniently may be, shall be
given to the said lessee or his agents, servants, or \vorkmen,
in the use and exercise of the powers and authorities here-
inbefore granted or demised. And also provided that when
any railway or waggon-way to be made or used by the said
lessee, by virtue of these presents, and any other railway
or waggon-way that may be made by virtue of the excep-
tions or reservations in that behalf hereinafter contained,
shall be laid or placed so as to cross or intersect each other,
at any place on the lands hereinbefore described, where a
stationary engine or self-acting inclined plane or a rope or
ropes, is, are, or shall be used on or for both or either of
such railways or waggon-ways, the person or persons, com-
pany or corporation, by whom such crossing or intersection
shall be made, shall at his or their own expense, if so re-
quired, by the other party, make the same by means of a
630 PRECEDENTS FOR [CHAP. xxiv.
bridge or arch or tunnel over or under the railway or
waggon-way of such other party, and shall keep such
bridge, arch, or tunnel, and the other works necessary for
the said crossing or intersection in good order and re-
pair. And also excepting and reserving full power and
authority to and for the said lessor, or his agents or
servants, to stop and prevent the passage of all persons,
horses, and other animals, engines, waggons, and other
carnages and commodities whatsoever, passing or being
along or upon any railways or other ways to be made
or used under the powers and liberties hereby granted,
other than and except such as are hereby authorized to
pass or be along or upon the same, or to take and im-
pound all horses and other animals, and all engines,
waggons, and other carriages, and the contents thereof
(other than and except as aforesaid), which shall be found
passing or being along or upon the same railways or other
Haben- ways or any of them. To have and to hold, use, exercise, and
enjoy the said mines and seams of coal with the powers,
liberties, and other the powers hereinbefore mentioned
and granted or demised or intended so to be, subject to the
exceptions, reservations, restrictions, and qualifications
aforesaid, unto the lessee from the first day of May, 1864,
for the term of years thence next ensuing, and
fully to be complete and ended, subject nevertheless to the
provisoes for determination of the said term hereinafter
Redden- contained. Yielding and paying therefore during the con-
tinuance of the said term unto the said lessor the several
yearly certain tentale and other rents or sums of money
hereinafter mentioned (that is to say), the yearly certain
rent of 400 (m), for or in respect of such quantities of
coals to be yearly and every year during the said term
wrought, gotten, and brought to bank out of the mines
and seams hereby demised (other than coals hereinafter
exempted from rent) as, at the respective rates or prices
per ton hereinafter mentioned, and in proportion for a less
quantity than a ton, shall be equivalent to the amount of
such certain rent ; (that is to say) for round or unscreened
(m) Ante, pp. 294, 515.
CHAP, xxrv.] LICENSES AND LEASES. 631
coals wrought out of the Hutton seam, the rate or price of
22s. 6d. per ton (a ton of coals being throughout these pre-
sents taken as equivalent to 18^ Newcastle chaldrons of
53 cwt. imperial per chaldron) ; for round or unscreened
coals wrought out of the High Main seam, the rate or price
of 20s. per ton ; and for round or unscreened coals, wrought
out of any other seam or seams, the rate or price of 15s.
per ton ; and for small coals, being such as shall have passed
through a screen the bars w r hereof shall not be more than
fths of an inch asunder, one half of the respective rates or
prices aforesaid, according to the respective seams whence
the same shall have been wrought or gotten, but the said
certain rent to be payable and paid by equal half-yearly
payments, on the day of and the
day of during the continuance of this
demise, whether the equivalent quantities of coals shall or
shall not be yearly wrought, gotten, and brought to bank
out of the mines and seams hereby demised, and the said
certain rent having been paid up to the day of
last, as the said lessor hereby acknowledges,
the next half-yearly payment thereof is to be made on the
day of next. And also yielding and Second red.
paying unto the said lessor, yearly and every year during '
the continuance of this demise, over and above the said
certain rent, the like respective rates or prices per ton, and
in proportion for a less quantity than a ton, for all such
coals (other than and except as aforesaid) as shall be yearly
wrought, gotten, and brought to bank out of the mines and
seams hereby demised, over and above the quantities, which
at the said rates or prices shall be equivalent to the amount
of the said certain rent, the said tentale rent to be payable
and paid yearly on the day of in every
year of the said term hereby granted, and so that at each
such day of payment the whole amount of such tentale
rent for the year then ended or ending shall be fully paid
and satisfied. And also yielding and delivering during the Third red-
continuance of this demise, at the staith or drop or depot
at Sunderland or Bishopwearmouth of the said lessee, such
quantities of best or round coals, the produce of the mines
632 PRECEDENTS FOR [CHAP. xxiv.
or seams hereby demised (but not exceeding 15 chaldrons
of 53 cwt.), in any one year, for the use and consumption
of the lessor, as he or his agent shall or may from time to
time require, without payment for the same, or in lieu of
such last-mentioned reservation and delivery, at the option
of the said lessor, yielding and paying to him on the
day of , in every year of the said term
hereby granted, the further rent or sum of sterling.
Provisoes. Provided always, that no rent shall be paid or accounted for
in respect of such coals as shall be delivered to or for the
said lessor as aforesaid, nor in respect of such small coals
as aforesaid, as shall be consumed for the use of the
engines, workshops, heap-fires, pit, and railway lamps,
agents' and workmen's fires, and other usual colliery
purposes, so that the same do not exceed one-ninth
of the coals wrought and gotten out of the said de-
mised mines or seams, and also, so that, whilst any other
mines or seams shall be wrought or earned on in con-
junction with the mines or seams hereby demised, by
means of such outstrokes or instrokes as aforesaid, or fair
proportion of the coals consumed for the purposes afore-
said, shall be taken from the produce of such other mines
Making up O1 - seams. Provided also, that if in any year or years of the
of preced- 3 sa id term hereby granted there shall not be wrought,
ing years, gotten, and brought to bank out of the mines and seams
hereby demised such a quantity of coals as shall, at the
rates or prices aforesaid, be equivalent to the amount of the
said certain rent, it shall be lawful for the said lessee,
during any succeeding or future year or years of the said
term, to work, get, and bring to bank out of the said
demised mines and seams such extra quantities of coals as
shall be sufficient to make up such short workings or de-
ficiency, without paying any tentale rent or sum of
money for the same, other than or beyond the said certain
rent, and that this proviso shall apply to and be available
for the making up, as w r ell of such short workings or de-
ficiencies as have already occurred since the said day of
, as of those which may hereafter occur, but the
overworkings in any year or years of the said term hereby
CHAP, xxiv.] LICENSES AND LEASES. 633
granted, shall not be allowed to come in aid of or to make
up the short workings or deficiency in any succeeding or
future year or years. Provided also, and it is further
agreed and declared that it shall be lawful for the said
lessee, during the continuance of the said term hereby
granted, to work, get, and bring to bank, out of and from
the said mines and seams of coal hereby demised, over and
above the quantities of coal requisite to make up the said
certain rent hereby reserved and the short-workings or de-
ficiencies hereinbefore authorized or allowed to be made up,
such further quantities of coals as, at the respective rates
or prices aforesaid, shall amount to the sum of , being
the amount or value of certain short-workings that have
accrued during a previous tenancy of the hereby demised
premises, without paying any rent or sum for the same,
other than or beyond the said certain rent hereby re-
served. And also yielding and paying unto the said Fourth
l i T i " ' A? jj r redden-
lessor, yearly and every year during the continuance of dum
this demise, the further rent or sum of 2s. 6d. per
ton (n), and in proportion for a less quantity than a
ton, for all coals wrought or gotten by the said lessee
from and out of any mines or seams (other than the
mines or seams hereby demised) that shall be won, or
wrought, or drained, or ventilated, wholly or in part, by
means of any such outstrokes or instrokes as are herein-
before authorized to be used and made respectively,
whether such coals shall or shall not be drawn or brought
to bank, at or by means of any pit, shaft, or drift of or
belonging to the mines or seams hereby demised, and sunk
or made in or upon the lands hereinbefore described, the
said last-mentioned rent to be considered as payable for
outstroke, underground way-leave, water-course, and out-
course, and to be payable and paid whether all, or some, or
one only of such easements or privileges shall be used or
exercised for or in respect of the said coals. And also Fifth rc) Ante, p. 296.
CHAP, xxiv.] LICENSES AND LEASES. 637
hereafter taxed, charged, assessed, or imposed, or due, or
payable, upon, for, or in respect of the mines, powers, liber-
ties and premises hereby granted or demised, or any of
them, or the occupation, use, or enjoyment thereof, or on
the produce thereof, or on the rents hereby reserved, or any
of them. And also shall and will, from time to time during
the continuance of this demise, yield and deliver in manner
aforesaid, such quantities of best or round coals the pro-
duce of the mines or seams hereby demised as are hereby
reserved or mentioned in that behalf. And also shall and Foref-
will, during the continuance of this demise, work, manage, ^orkin
and cany on the mines and premises hereby demised in a mines,
fair, proper, and orderly manner, and according to the best
and most improved method of working mines and seams of
the like nature on the rivers Tyne, Wear, and Tees, and
so as to obtain therefrom the greatest possible quantity of
coals, and shall not, nor will do, or suffer to be done, any
wilful or negligent act or thing which may cause, or tend to
cause, the drowning or firing of the said mines or premises
hereby demised, or any part thereof, or cause, or tend to
cause, any loss of coal, or which may occasion or bring any
creep or thrust upon the same, or stop or obstruct any of
the air-courses, water-courses, passages, or drifts thereof ;
and that if by reason of any act, neglect, or default, or im-
proper mode of working or management of the said demised
mines or premises, by or on the part of the said lessee, or
his agents or servants, any coal therein, or in any of the
seams thereof shall be rendered inaccessible or incapable
of being worked, or if the said lessee should leave un-
wrought any barrier, bulk, or warren of coal in any of the
seams hereby demised, or in any parts thereof respectively,
next or adjoining to any other mines or seams whatsoever,
but which barrier he is nevertheless hereby permitted and
allowed to have if he should think proper so to do, the coal
so rendered inaccessible, or incapable of being worked, or
left in such barrier as the case may be, as aforesaid, shall
be chargeable and charged with and subject to the pay-
ment of rent under and by virtue of these presents, in like
manner as if it had been actually worked and brought to
638 PRECEDENTS FOR [CHAP. xxiv.
bank by the said lessee during the year or respective years
in which it shall have become inaccessible or incapable
of being worked, or might or ought to have been worked
Erection of out of and upon such barrier as aforesaid. And far-
buildings. ^^ ^^ ^he said lessee shall not nor will erect or build
any coke-ovens, or agents' or workmen's dwelling-houses,
in or upon the said lands hereinbefore declared, save in
such numbers and situations as the said lessor shall from
time to time by writing under his hand permit or allow.
For keep- And also, that the said lessee shall and will at all times
a" counts* during the continuance of this demise, keep or cause to be
kept, full and accurate accounts, of the quantities of coals
wrought, gotten, and brought to bank from and out of the
mines and premises hereby demised, and from and out of any
other mines and premises that may be wholly or partially
wrought, drained, or ventilated by means of the powers or
liberties hereby granted or demised, or any of them, and
also of the quantities of coals and coke the produce of any
such other mines or premises that shall be led or carried
away over or upon the lands hereinbefore declared or any
part thereof, by means of the powers in that behalf herein-
before contained, specifying and distinguishing in such
accounts, the quantities of coals and coke respectively
chargeable, with each of the respective rates or prices per
ton as tentale rents hereby made payable or mentioned,
and also the respective quantities and qualities of coals
hereby exempted from rent, or for or in respect whereof
Delivering exemption from rent shall be claimed. And shall and will
nts ' once in each calendar month during the continuance of
this demise, make, and at his own expense deliver to the
said lessor, or his agent or colliery viewer, a full and correct
account (distinguishing and specifying as aforesaid) of the
quantities of coal wrought, gotten, and brought to bank
from and out of the mines or premises hereby demised, and
also of the quantities of coals and coke respectively wrought,
gotten, and brought to bank, and led away as aforesaid by
the means aforesaid from and out of any such other mines
or premises as aforesaid during the then next preceding
CHAP, xxiv.] LICENSES AND LEASES. 639
calendar month. And also shall and will from time to time, Inspection
and at all reasonable times during the continuance of this a cl e * a ~
i . n i i n. mmationof
demise, permit the said lessor or his agent or colliery viewer, accounts.
to have access to the overmen's, banksmen's, and staith-
men's books of presentments, drawings, and leadings, and
all other books and accounts relating to the working and
drawing to bank of coals out of or from the mines and
premises hereby demised, or such other mines or premises
as aforesaid, or to the leading of coals or coke, the produce
of such other mines or premises on the lands hereinbefore
declared, or any part thereof, by the means aforesaid, with
liberty to take copies thereof or extracts therefrom at
pleasure. And also that any person or persons employed Accoun
by and at the expense of the said lessor, shall and may
from time to time, and at any time or times during the bank.
continuance of this demise, at any pit or pits of the de-
mised mines, or elsewhere upon any of the lands aforesaid,
or at any other pit or pits wheresoever situate, where any
coals the produce of the demised mines or premises hereby
demised, or of any such other mines or premises as afore-
said, shall be drawn or brought to bank, take an account in
writing of all or any coals wrought and brought to bank
from and out of the mines or premises hereby demised, or
any such other mines or premises as aforesaid, and of the
quantities of coals and coke the produce of such other
mines or premises led away over the lands aforesaid by the
means aforesaid, and that he, the said lessee, his agents,
servants, and workmen, shall and will afford to such person
or persons all facilities necessary or convenient for taking
such accounts. And also that it shall and may be lawful Inspection
to and for the said lessor, or his agents, viewers, or servants f mines'". ^
(but not exceeding five persons at any one time), from time
to time, and at any time or times during the continuance of
this demise, without any interruption, to descend into the
mines and seams hereby demised by means of any pit or
shaft already or to be hereafter sunk or made in the lands
hereinbefore declared, or any other pit or shaft wheresoever
situate, for the time being belonging to or used by the said
G40
PRECEDENTS FOR
[CHAP. xxiv.
Keeping
plans of
workings.
For uni-
formity of
size of
corves,
boxes, or
tubs.
lessee and communicating with the said hereby demised
mines and premises, and to use the machinery, ropes, ser-
vants, and horses belonging to the said lessee for that pur-
pose, and for safe return forth and out of the hereby
demised mines and premises, to the intent to inspect and
survey the same mines and premises and the workings and
management thereof. And also, if deemed expedient, to
measure or survey the same, and to use any other means
for ascertaining the quantities of coals wrought throughout
or remaining unwrought therein, so that such persons or
viewers do not thereby obstruct the workings of the said
hereby demised mines and premises, or of any other mines
or seams belonging to or worked by the said lessee, more
than necessity may require, and that the said lessee shall
and will, if thereunto requested, cause one or more of his
viewers, or other servant who may have a competent know-
ledge of the said demised mines and premises, or other
mines and premises, to attend and assist the agents, viewers,
or servants of the said lessor in making any or every such
inspection, survey, and measurement as aforesaid. And also
shall and will, during this demise, make and keep filled up
from time to time, every three calendar months at the least,
a proper and accurate plan of the workings in each seam of
the said mines and premises hereby demised and the other
mines, on which plans respectively the true position, direc-
tion, and inclination of all faults, troubles, and dykes met
with or found in the said mines and premises, as well as of
all drifts, outstrokes, instrokes, air-courses, and water-courses
therein, shall be correctly laid down or shown, and to which
plans respectively the said lessor, and his agents, viewers,
and servants, shall and may from time to time, and at all
reasonable times, have access, with liberty to inspect the
same, and take copies thereof and extracts therefrom at
pleasure. And further, that the corves, boxes, or tubs re-
spectively, to be used for the drawing to bank of coals from
the mines and premises hereby demised, or from any such
other mines or premises as aforesaid, by the means afore-
said, and the waggons, trucks, or other carriages to be used
for the loading or carrying away of coals and coke respec-
tively, the produce of such other mines or premises over the
CHAP, xxiv.] LICENSES AND LEASES. 641
lands aforesaid, or any part thereof, by the means aforesaid,
shall respectively be made and kept of one uniform size,
and that of some acknowledged and specified size or capa-
city, but not so that those used at any one pit or shaf t need
be of the same size, gauge, or capacity as those used at any
other pit or shaft, and that the said corves, boxes, or tubs,
waggons, trucks, or other carriages, shall not, nor shall any
of them, be altered during the continuance of this demise,
unless at least two calendar months' notice in writing be
given to the said lessor of the intention to make such alte-
ration. And that the said lessee, or his agents or servants,
shall and will at all times during the continuance of this
demise, weigh the contents of the said corves, boxes, or
tubs, when and as they respectively shall be drawn to bank,
with weighing-machines and weights to be for that purpose
provided, and kept in good order and repair, by and at the
expense of the said lessee, at each pit or shaft where coals
shall be drawn to bank, from or out of the hereby demised
mines or premises, or from or out of any such other mines
or premises as aforesaid by the means aforesaid, and shall
and will enter the weights of the contents of every corf,
tub, or box in a book or books to be kept for that purpose
by the said lessee, or his agents or servants, which book or
books shall be open at all times to the perusal and inspec-
tion of the said lessor and his agents and viewers, with
liberty to take copies thereof and extracts therefrom at
pleasure. And also that the said lessor, or his agents,
viewers, or servants, may from time to time, and at any
time or times, as often as he shall think proper, measure
and gauge the corves, boxes, and tubs, waggons, trucks,
and other carriages respectively aforesaid, or any of them,
and weigh the same and the contents thereof with the
weighing-machines and weights to be provided and kept by
the said lessee as aforesaid. And that if upon any such
measuring, gauging, or weighing, the said corves, tubs, or
boxes, waggons, trucks, or carriages, or any of them re-
spectively, shall be found to be of too great size, gauge, or
capacity, the said lessor, or his agents, viewers, or servants,
may stop and hinder the same from being used until they,
2 T
PRECEDENTS FOR
[CHAP. xxiv.
Examining
weighing-
machines
and
weights.
Keeping
fences,
crossings,
gates, &c.
by and at the expense of the said lessee, be reduced to the
proper size, gauge, or capacity, and all corves, boxes, or
tubs, waggons, trucks, or carnages found to contain, or to
be of a size, gauge, or capacity for containing an excess of
weight, shall be reckoned to have carried such excess for
three calendar months then next preceding, unless there
shall have happened a measuring, gauging, or weighing
within the last-mentioned time, and then from the time of
such last-mentioned measuring, gauging, or weighing, and
rent shall be chargeable and paid upon such excess accord-
ingly. And also that the said lessor, and his agents and
viewers, may from time to time, and at any time or times,
as often as they shall think proper, examine all or any of
the weighing-machines and weights to be provided and
kept by the said lessee as hereinbefore covenanted, in order
to ascertain whether the same respectively are or is correct
and in good repair and order; and if, upon any such ex-
amination, such w r eighing-machines, or any of them, shall
be found incorrect or out of repair or order, the said lessor,
or his agents or viewers, may require the same to be ad-
justed, repaired, and put in order by and at the expense of
the said lessee; and if such requisition be not complied
with within fourteen days after being made, the said lessor,
or his agents or viewers,
may cause the said weighing-
machines and weights respectively to be adjusted, repaired,
and put in order, and may recover the expense of so doing
from the said lessee ; but the foregoing provisions, or any of
them, shall not prejudice or affect any rights, remedies,
claims, and demands of the said lessor against the said
lessee by reason of the said weighing-machines and weights,
or any of them, being incorrect or out of repair or order.
And also shall and will fence off, and during the continuance
of this demise keep fenced off, from the adjoining lands,
with a substantial wall or railing, or other proper fence or
fences ( 1864. Provided always, and the said lessee
distress. ^h hereby grant to the said lessor, that in case any of the
rents hereinbefore reserved or made payable shall be in
arrear, in part or in the whole, by the space of twenty-one
days next after the same shall become due, according to
the respective reservations thereof hereinbefore contained,
then, and in every such case, it shall be lawful to and for
CHAP, xxiv.] LICENSES AND LEASES. 657
the said lessor (under the present power, and as a cumula-
tive remedy) to stop or hinder the loading and sending of
any coals or coke from off the said premises, and to distrain
all and every or any of the said coals or coke on the said
premises, and all the horses, waggons, carts, gins, engines,
machinery apparatus, implements, or utensils whatsoever
used in and about the said works and premises, and also all
goods and chattels whatsoever of the said lessee being on
the said lands and premises, and the distress and distresses
then and there found, to take, load, and carry away, detain,
manage, sell, and dispose of in like manner as landlords are
by law authorized to do with distresses for rent in arrear,
to the intent that thereby and therewith, or otherwise, the
said lessor may be fully paid and satisfied the rents or rent
in arrear, and all costs and expenses occasioned by the non-
payment thereof at the time at which the same became
due, according to the reservation thereof hereinbefore con-
tained (v}. And the said lessee hereby covenants (w) with Covenants
, . . by lessee.
the said lessor in the manner following, that is to say, that
he, the said lessee, mil and shall well and truly pay, or Payment
cause to be paid, unto the said lessor the rent of , and
also the royalty rent hereinbefore severally and respectively
reserved and made payable, on the several days and in the
manner hereinbefore appointed for payment of the same
severally and respectively. And also shall and will, at all Taxes,
times during the said term, pay and bear all and singular
the taxes, rates, charges (including tithe commutation rent-
charges), assessments, and impositions, from which the said
several and respective rents are hereinbefore severally and
respectively reserved clear and free, and save harmless the
said lessor from and against the same and all claims and
demands occasioned by the non-pavment thereof. And also To P rcn ; idc
11 -11 1-1111 11 i a couutmg-
that the said lessee will and shall keep at all times during house and
the said term, upon some convenient part of the premises
hereby leased, a counting-house for the said colliery ; also
one or more proper, correct, and sufficient weighing-machine
or machines of the most approved construction, and will
and shall cause to be weighed by means of the said machine
() Ante, p. 635. (w) Ante, p. 296.
2u
C58 PRECEDENTS FOR [CHAP. xxiv.
or machines the coals as well already "raised, but neither
sold nor weighed, as from time to time to be raised out of
the said mines, and also the coke as well already produced,
but neither sold nor weighed, as from time to time to be
produced from any of the said coals, and such coals and
coke to be weighed as aforesaid, if already raised or pro-
duced, as soon as reasonably can be after the execution of
these presents, and if not already raised or produced, when
and as the same shall from time to time be respectively
raised and produced, and will and shall cause all the said
coals and coke where not sold when and as raised to be
again so weighed when and as the same shall from time to
time be sold, and will and shall permit the agent of the
said lessor to be present at any and every such weighing.
Books and And also will and shall at all times, during the said term,
accounts. k ee p or caused to be kept at the counting-house of the said
colliery, proper books in some of which shall be entered
fairly and legibly from day to day full, true, particular, and
intelligible accounts of the following matters, viz. : 1.
The quantity and description as well of all coals and coke
already and to be raised and produced, as of all such stone
and clay raised and to be raised as shall be converted into
lime and bricks or tiles respectively ; 2. The sales and de-
liveries which, since the day of , 186 , have
been, or from time to time shall be, made of the said coals
and coke, the times thereof respectively, and the names of
the purchasers ; 3. The produce of such sales ; 4. The
purposes for which such lime and bricks or tiles were made,
and the mode, time, arid place in and at which they were
employed ; also accounts of all other particulars calculated
to elucidate the measures aforesaid, and in others of which
said books shall be fairly and legibly made faithful and
just entries of all sinkings of pits, drivings of levels, borings,
and workings out on the said premises, describing therein
the particulars of such in a regular and technical manner.
Plans and And also will and shall at all times, during the said term,
Dns ' keep and have forthcoming at the counting-house aforesaid
accurate and intelligible plans and sections of the coal-mine
beds, strata, veins, and seams hereby leased, and of all pits,
CHAP, xxiv.] LICENSES AND LEASES. 659
shafts, galleries, levels, dykes, and other matters connected
therewith, so as to exhibit the progress and actual state of
the workings of the said mines; which said books, plans,
and sections shall be at all times accessible to and open to
the inspection and examination of the lessor and his agents
for the purpose of casting up the accounts, and of making
copies or abstracts of the said books and plans or extracts
therefrom, or verifying any copies or abstracts of or ex-
tracts from the said books and plans. And also that the
said lessee will and shall, on each and every of the quarter-
days hereinbefore appointed for payment of rent, at his
own expense, make out and deliver to the lessor or his
agents a correct copy of the said books of account for the
then last preceding quarter of a year, accompanied with an
abstract or summary thereof, so framed as to show the
amount of royalty rent payable for that quarter. And also
will and shall at all times, at the request and expense of
the lessor and his agents, make out and deliver to the same
person or persons making such request copies, abstracts,
and extracts of and from the said books, plans, and sections.
And also that the lessee will and shall sell, and that at the Sale of
best price which according to the nature and quality thereof *"
can be had for the same, all the coals and coke as well
already raised and produced as aforesaid but not sold, as
those shall be so raised and produced as aforesaid, save only
such coals as have been or from time to time may be con-
verted into coke, and such coals and coke as shall from
time to time be required and used for the purpose of work-
ing the engines, or in making any bricks or tiles, or in con-
verting any limestone into lime, to be severally used during
the said term in any of the works or for colliery purposes
within, upon, or under any of the aforesaid lands and pre-
mises ; and also except all the coals required for consump-
tion, and actually consumed during the said term hereby
granted in the houses or habitations, and for the private
domestic use, convenience, or necessity of all or any of the
agents, workmen, servants, or labourers for the time being
employed in and about the said colliery or works, or any of
them, so that the quantity of such last-mentioned coals do
2u2
660 PRECEDENTS FOR [CHAP. xxiv.
not exceed that usually allowed for similar purposes at
other collieries in Anglesea and Carnarvonshire, nor exceed
in any case or on any account tons in any one year.
For effect- And also that the lessee will and shall, during the term
ual1 ?; hereby granted, in all respects work the coal mines and coals
hereby demised in a fair, orderly, efficient, skilful, provi-
dent, and proper manner, according to the most approved
method of working collieries in Anglesea and Carnarvon-
shire, and without any voluntary intermission or unneces-
sary loss of time, and so as to render the same as productive
of royalty rent as circumstances will permit, and without
any unnecessary waste, and with as little damage to the
surface or the buildings thereon as is reasonably possible.
And in particular will and shall carry on and use the
Longway system of working the said coal whenever and
wherever such mode of working shall be practicable. And
will and shall sink as few and as deep pits as possible
for reaching and working the coal, and will and shall work
the deep coal first, and will not, nor shall on any account
whatsoever, open shallow works in the bassetts of the said
coal. And will and shall at all times during the term
hereby granted keep the mines hereby leased well and
Drains. sufficiently drained and ventilated, and cause all pumping-
shafts and water-hods to be lined with stone or bricks in a
sufficient and workmanlike manner, according to the best
and most approved mode of completing the same, and cause
all pits and shafts already or to be hereafter sunk or made,
to be well, effectually, and by durable means secured and
Fences. kept open and fenced (V) round by sufficient walls. And
also will and shall in working the coal-mine beds and strata
seams and veins hereby leased, keep and leave unwrought
in every seam of coal, a barrier (?/), bulk, or warren of whole
coal of at least five yards in breadth or thickness in every
part next to or adjoining the estates or lands of other per-
sons, and will not nor shall cut through or in any way
perforate the same without the previous consent in writing
of the lessor, or his agents duly authorized. And further
will and shall, during the said term of twenty-one years,
(x) Ante, pp. 213, 262, 547. (#) Ante, p. 438.
CHAP, xxiv.] LICENSES AND LEASES. 661
engage, keep in pay, and employ an experienced and skil- Agents.
f ul agent, to be approved of by the lessor, to [conduct the
works, and also not less than able-bodied miners certain
engaged without intermission, except while prevented by number of
'iii . j . . , . . 1.1 workmen.
inevitable accident, in working the mines, and sink, erect,
make, and maintain all necessary or proper pits, shafts,
galleries, levels, adits, buildings, engines, machinery,
tackle, and gear, and provide and employ proper and suffi-
cient horses, cattle, carriages, tools, utensils, and materials,
in order that the works may be carried on and followed up
during the said term skilfully and with unabated vigour,
and that all engines, machinery, and implements to be Machinery,
hereafter introduced on the premises shall be of good work-
manship and materials and of a modern character. And
also will and shall cause to be properly laid aside in heaps Preserving
for the lessor, all the earth and soil which shall be dug up eartb -
in the working of the said mines. And will not, nor shall
wilfully or negligently do, or suffer, or omit any act or
thing the commission or omission of which shall or may
produce, or occasion, or tend to produce the drowning of Drowning
any of the said mines, or the destruction or loss of or any mme-
damage to the coals therein. And also that the working
of the said mines and all the mining operations authorized
by these presents, shall take place and be earned on under
the inspection and superintendence and subject to the
control of the lessor, his steward, bailiff, or surveyor. And Power to
also that the lessee shall and will at all times when the said f urve y and
i inspect.
mines shall be in work, cause to be conveyed gratis from
the surface down into the said mines, and through them,
and thence back again and up to the surface, by means of
the machinery and apparatus, the lessor, his steward, agent,
nominee or nominees, for the purpose of surveying and
inspecting the said mines and works, and ascertaining
whether the same are kept in good and proper repair, order,
and condition, and are being worked and carried on in the
manner hereinbefore specified in that behalf, and according
to the true intent of these presents, or not, and will and
shall give to him or them such explanations touching the
said mines as shall be requisite in that behalf; and that in
C62 PRECEDENTS FOR [CHAP. xxiv.
case on any sucli survey it shall be found that any of the
said mines and works are not in good and proper repair,
order, and condition, or are being worked or used in an
unfair, irregular, unworkmanlike, improvident, or improper
manner, then, on a notice in writing thereof from the lessor,
or his steward or agent for the time being, given to the
lessee, the said mines and works shall forthwith be put into
good and proper repair and condition, and the inculpated
mode of working or using the same be discontinued, and
the right mode adopted, or should the terms of the notice
require it, the further working of the said mines shall be
suspended until full satisfaction and amends shall have
been made for the damage or injury sustained, or occa-
sioned by or to the lessor, through or by reason of the said
mines and works having been so worked or used in an
unfair, irregular, unworkmanlike, improvident, or improper
Filling up manner. And also that the lessee will and shall as often
' S ' as the pits or shafts sunk shall by reason of the exhaustion
face. of the veins or seams of coal become useless, fill up the
same pits or shafts, or, at the election of the lessor, arch
over the same with bricks in a substantial and secure
manner, burying therein the spoil and rubbish which shall
have been raised or gotten out of the said pits or shafts,
and in either case cover the mouths of the said pits or
shafts with good earth or soil. And at the same time level
the land immediately surrounding the said pits or shafts,
and break up, and level, and cover with good soil the sur-
face of any roads used in connexion with and become
unnecessary by the disuse of the same pits or shafts, so as
to render the surface of the said pits or shafts, and of the
land and roads connected therewith, fit for tillage and cul-
tivation. And will or shall when and as any erections,
buildings, engines, furnaces, machinery, ironwork, or other
apparatus already or to be erected, built, constructed, or
fixed by the lessee in or upon the said appropriated lands
shall be taken down and removed, in like manner, break
up, level, and cover with good soil the surface of the sites
thereof, and level the surface of the land immediately sur-
rounding the same, and break up, level, and cover with
CHAP, xxiv.] LICENSES AND LEASES. 663
good soil the surface of the roads used in connexion with
but become unnecessary by the taking down and removal
of the same so as to render the said sites, land, and roads
fit for tillage and cultivation. And further, that the lessee For cul-
will and shall cultivate such part of the lands hereby leased tivatin f
/ some of the
as are or heretofore usually have been in or are intended lands.
for tillage, in and according to the following rotation of
crops ; that is to say, he will not nor shall take therefrom
more than two crops of corn in five years, nor these other-
wise than in and under the following order and qualifica-
tions viz. the first of the said crops of corn to be followed
in the next succeeding year by a green crop, well manured
and kept free from weeds, and in the year immediately
next following shall come the second crop of corn, which is
to be laid down with clover and seeds, and the said second
crop shall be followed in the next succeeding year by a
crop of hay, and after that and in the year next following
by clover or grass fed off. And also that the lessee will
not nor shall at any time or times sell, or dispose of, or
carry away any hay, grass, straw, fodder, or stubble which
shall at any time or tunes during the said term grow upon
or be produced by or on the said premises, or any part
thereof, but will and shall spend the same upon the said
premises. And also will and shall duly and regularly lay
and spread abroad upon such parts of the said premises
as shall most need the same, all the dung, compost, and
manure which shall from time to time be made upon the
said premises, and at the expiration or sooner determination
of the term will and shall leave in heaps on some conve-
nient part or parts of the premises, for the benefit of the
lessor, and without being paid for the same, so much of the
same dung, compost, and manure as shall not have been so
laid and spread. And will not nor shall plough up or
convert into tillage any part of the pasture land, nor mow
the meadow land oftener than once in any year, nor take
therefrom two crops in two consecutive years, without
manuring or irrigating the same in one of those years, nor
mow any part not mown previously within a period of ten
years, and generally that the lessee will and shall manage,
664 PRECEDENTS FOR [CHAP. xxiv.
till, cultivate, and use all the lands hereby leased and not
required for the mining purposes hereinbefore authorized,
in a due and regular course of good husbandry, so that the
same shall not be in anywise injured or deteriorated, but
improved. And will not nor shall cut down, root up,
fell, top, shred, or damage, or through negligence allow to
be shred or damaged, by cattle or any other means, any
tree, sapling, or underwood, for the time being growing, or
being upon the land hereby leased, nor commit, nor suffer
to be committed any waste, spoil, or destruction upon any
Repairs, of the premises hereby leased. And also that the lessee
will and shall, from time to time, and at all times during
the said term, well and sufficiently repair, amend, maintain,
sustain, fence, dress, cut, scour, cleanse, keep free from
weeds, and preserve in good and sufficient order and repair,
and in due and proper course of working, all and singular
the premises hereby leased, together with all houses, build-
ings, and sheds used for agricultural purposes, all hedges,
fences, pales, gates and stiles, roads, ways, drains, water-
ditches and other ditches, ponds, water-courses, and sluices,
in, upon, or belonging to the said premises, or any part
thereof; together also with all the buildings, engines,
machinery, railways, or roads of every description, and
other conveniences which now are or during this lease shall
by the lessee be erected, set up, constructed, or made for
winning and working the said mines, beds, seams, and veins
of coal, or otherwise carrying on the said colliery works,
provided this covenant shall not extend to prevent the
lessee from pulling down and erecting elsewhere on the
premises any buildings, engines, or machinery erected or
to be erected by him for colliery purposes, power to take
down and remove which is hereinbefore given to him by
these presents, or from substituting new engines, machinery,
or implements proper and sufficient for the due and proper
Drains. working of the mines for others before there. And in par-
ticular the lessee will and shall cause all drains and ditches
Roads. to be cleared out at least every two years. And also that
the lessee will not, nor shall make, or cause to be made any
roads, paths, or tracks, except such as shall be necessary or
CHAP, xxiv.] LICENSES AND LEASES. 665
convenient for the due use and cultivation of the said
lands, or for the due use and working of the mines afore-
said, nor these without the previous consent in writing of
the lessor, or his steward or agent ; nor shall nor will use
any such roads, paths, or tracks if or when made, or any
existing road, path, or track, save only for those purposes,
and for no other purpose whatsoever. And will within
one calendar month from the day of the date hereof
break up, or cause to be broken up, the road or track
marked A. B. in the said plan in the margin of the
first skin of these presents, and cease to use the said
road, or any other road or track across or over any of
the lands hereby leased, as a way to the coal mine be-
longing to the Right Honourable the Earl of
, known as the coal mine. And that Power of
it shall be lawful for the lessor or his agents at all reason-
able times during the term hereby granted, to enter into
and upon the houses, buildings, lands, and premises hereby
leased, to examine and ascertain the state of the repairs
and cultivation and general condition thereof, and of all
such wants of reparation, defaults, and defects, as upon
any and every such view shall be discovered in or upon
any parts or part of the premises contrary to the covenants
hereinbefore contained of the lessee, to give notice to the
lessee, and that the lessee will and shall within three calen-
dar months, or within a shorter time, if the urgency of the
case shall so require, next after any and every such notice
so given, well and sufficiently repair, amend, or remedy
every such want of reparation, default, or defect specified
or mentioned in such notice, according to the exigencies
and true intent of the same notices. And further, that it Hunting
shall be lawful for the lessor, with or by his attendants. and fisl ; in g
rcscr v c ( I
servants, or other persons authorized by him in that behalf,
to have the sole and exclusive right of hunting, hawking,
and fowling, and pursuing and killing game upon the
said premises, and fishing in the waters of or adjoining the
same, at his or their free will and pleasure, at all reason-
able times of the year during the said term, and to carry
away the game, beasts, wild-fowl, and fish thus destroyed
G66 PRECEDENTS FOR [CHAP. xxiv.
or taken, and that the tenant will and shall warn off all
other persons sporting or trespassing in search or pursuit of
game on the premises hereby leased, and inform the lessor
of the names and addresses of all such persons, and permit
the name of the lessee to be used by the reversioner in all
such proceedings as the lessor shall be minded to take,
against all or any such persons, being first indemnified
against all loss, costs, charges, and expenses to be occasioned
by any such proceeding ; and will not nor shall do or suffer
any act or thing whereby or by means of which such pro-
Against ceedings may cease, fail of effect, or be delayed. And also
isigmng. j.j^ ^ e j essee ^yyi no f. nor s ] ia |^ without having first ob-
tained the consent in writing of the lessor, assign over or
underlet, or in any manner part with the possession of all
or any part of the lands, colliery, mines, and premises hereby
leased, or deposit with any one by way of mortgage or lien
Powers of this present indenture. And also that the lessee will and
during the sna ll permit the lessor, in the last year of the term, to sow
last year, grass seeds with any spring corn which it may then be in
the course of cropping to sow, and will and shall properly
harrow in the said seeds, and will and shall permit the
lessor to take the hay, together with the green crops grow-
ing on the said premises at the end of the said term at a
price or prices to be fixed by two impartial practical valuers,
to be chosen, one by the lessor and the other by the lessee,
or in case of the disagreement of such valuers, by a third
person of their nomination, such price, as respects the hay,
to be its market value at , less the cost of
carnage there, and less the value delivered on the said
premises of as many loads of good stable dung as there
shall be loads of hay, and as respects the green crops to be
Setting out then: value to be consumed on the said premises. And also
^ iat ^e l essee shall, one calendar month before the expira-
tion of the term, set out for the lessor one equal twelfth
part of all the coals and coke then resting or lying unsold
on the premises, in lieu of the royalty rent which, had the
whole thereof been sold, would have been payable to the
lessor for the same, and thenceforward set out for the lessor
a like part of all the coals and coke which shall, before the
CHAP, xxiv.] LICENSES AND LEASES. 667
expiration of the term, be raised or made upon the premises
and not sold in lieu of the similar rent ; and will and shall
bank up separately all the coals and coke which shall be so
set out in such manner as to keep the surface around the
pits of the colliery free and clear, and so as not to obstruct
or hinder the operations of an entering tenant in screening
and depositing his coals. And also will and shall, before For re-
the expiration of the said term, remove from the premises "alfand
hereby leased, all the residue of the said coals and coke, coke, and
and all the tenant's fixtures which shall not be required by
the lessor to be sold to him under the power in that behalf
hereinafter contained ; and level the surface of, and cover T level the
with good soil, and reinstate as nearly as may be, such of
the said lands, hereby leased, the surface whereof shall
have been broken, disturbed, or covered by reason or means
of the working or carrying on of the said mines and works,
and render the same fit for tillage and cultivation. A nd For selling
further, that the lessee shall, at the expiration or sooner de- ^ "fi^ts
termination of the term, if the lessor shall by notice in a * a valua-
writing require him so to do, sell to the lessor all or any of
the engines, machineiy, tools, utensils, tram-plates, trade-
fixtures, and implements used or employed by the lessee in
or about the working of the mines or carrying on the col-
liery, which at the time of such requirement shall be in,
upon, about, or belonging to the premises or any part
thereof, and shall be specified or mentioned in such notice
upon being paid for the same, the price at which they shall
be valued by arbitration, in manner hereinafter provided
in case the parties differ about the same ; provided that if
such sale is required to be made on the expiration of the
term, such requirement be notified to the lessee by or on
behalf of the lessor three calendar months before the ex-
piration of the term. And lastly, that the lessee will and For yield-
shall, at the expiration or sooner determination of the term, n
peaceably yield up to the lessor the messuages, buildings,
lands, colliery, and premises thereby leased, save in so far
as the beds, strata, veins, or seams and minerals shall have
been exhausted or diminished by virtue of the works carried
on under these presents, with the shafts, pits, galleries,
668 PRECEDENTS FOR [CHAP. xxiv.
levels, drains, soughs, water-courses, roads, ways, and other
conveniences belonging to the said colliery (the tram-plates
and other ironwork appertaining to any of the said roads or
ways, and not purchased by the lessor, excepted), in good
and sufficient repair and condition (z\ and in due and
proper order and course in all respects, the said lands
hereby leased being in a due and regular course of hus-
bandry and cultivation, and such as shall be consistent with
the terms and restrictions in that behalf aforesaid, and the
ungotten and unexhausted mines being in a due and re-
gular course of working according to the most approved
practice of good miners, and well drained and ventilated,
and in good order for the future prosecution thereof,
there being left in the pits which shall then be in work a
sufficient quantity of unwrought accessible coal to serve
and supply the usual sale of the colliery during the space
of months, if there shall be so much of such
coal remaining in the same pits, and the disused pits or
shafts being filled up or arched over and secured, and the
disused and unnecessary roads broken up, and the surface
both of the same pits, shafts, and roads, and of the other
lands or grounds (the surface whereof shall be broken, dis-
turbed, or covered by reason or means of the working and
carrying on of the said mines and works) properly levelled
and covered with good soil, and reinstated and rendered fit
for tillage and cultivation, pursuant to the covenants of the
lessee in that behalf hereinbefore contained. And the
Covenants l essor hereby covenants with the lessee in manner follow-
by lessor. . . . J , ~ ,
mg, that is to say : (Covenants jor title, quiet enjoyment, and
further assurance, ante, pp. 621, 647.) And further, that it
shall be lawful for the lessee, in accordance with the custom
of the country in this behalf, to hold over and keep pos-
session of the barns on the said premises until the
day of next after the expiration of the said term,
for the purpose of thrashing out and disposing of the corn
and grain the produce of the said premises hereby leased.
And also that the lessor will and shall at the end of the
said term pay to the lessee the value of the hay and green
(2) Ante, pp. 299, 304.
CHAP, xxiv.] LICENSES AND LEASES. 669
crops then being on the said premises, such value to be
fixed as aforesaid, in case the parties differ about the same.
Provided always, and it is hereby declared and agreed, that Proviso for
if it shall happen that either of the yearly rents herein- re - entrv -
before reserved shall be behind or unpaid, in the whole or
in part, by the space of thirty days next after any day
whereon the same ought to have been paid as aforesaid
(having first been demanded, and either upon or at any
time after such thirtieth day), or if the lessee shall be-
come bankrupt, or shall assign his estate, or effects, or
any part thereof in trust for his creditors, or shall com-
pound for the payment of his or their debts, or if any exe-
cution shall be levied on his goods and chattels, or if he
shall break or not keep any covenant hereinbefore con-
tained, on his part to be performed or observed, it shall in
any one of the cases aforesaid be lawful for the lessor into
and upon the premises hereby leased, or any part thereof,
in the name of the whole, to re-enter, and the same to have
again and enjoy as in his former estate ; but without preju-
dice to any and every other right or remedy then already
accrued to him by virtue of these presents, anything herein-
before contained to the contrary notwithstanding. And it is Proviso" as
hereby declared that all notices required by these presents to notlces>
to be given to the lessee shall be deemed to have been given
to him accordingly, if they respectively shall have been left
for him at the counting-house of the colliery, or shall have
been affixed upon some conspicuous part of the premises
hereby leased.
(Insert clauses for obtaining a further term ; also for re-
ferring matters in dispute to arbitration ; and for defining
the terms " lessor" and " lessee" as at pages 650-652.)
In witness, fyc.
LEASE OF QUARRIES OF LIMESTONE AND OF LANDS.
This Indenture, made the day of , 1864,
between the Right Hon. Gertrude Lady , of
, of the one part, and Charles Johnson, of
, merchant, of the other part, Witnesseth,
670 PRECEDENTS FOR [CHAP. xxiv.
that in consideration of the rents, royalties, and covenants
hereinafter reserved and contained respectively on the part
of the said C. J. to be paid and kept, the said Gertrude
Lady (hereinafter called the lessor) doth by these
presents grant and lease unto the said 0. J. (hereinafter
Description called the lessee), All that piece or parcel of land situate in
uls ' the parish of Llandona, in the county of Anglesey, and
containing altogether about , be the same more
or less, bounded by the sea-coast towards the ,
and surrounded by other lands of the said lessor on all
other sides, and more particularly described and delineated
in the map drawn in the margin of the first skin of these
presents, the extent or limits thereof being thereon distin-
Lessee's guished by the red line drawn around the same. Together
ers ' with full power and authority for the said lessee, and his
agents, servants, workmen, and others by him or them
authorized in that behalf, to quarry (a), work, and bring to
the surface, or to excavate or otherwise obtain, the lime-
stone, or limestone rock, lying beneath the said piece of
land within the limits aforesaid, and such limestone to
crush or burn into lime, or otherwise make merchantable,
and subject to the reservations, covenants, and conditions
hereinafter contained, to take away and dispose of. And
for the purposes of these presents, in, under, upon, through,
over, or along the said piece or parcel of land within the
limits aforesaid, to make or sink any quarries, pits, shafts,
or excavations ; and also to make, erect, remove, and re-erect
and repair any bridges, quays, jetties, wharfs and banks,
cottages, stables, sheds, kilns, steam and other engines,
crushing-mills, or works and machinery which may from
time to time be required for all or any of the purposes
aforesaid. And full liberty of ingress, egress, and regress,
way and passage, at all times for the said lessee and his
agents, workmen, servants, and others by him or them
authorized in that behalf, with or Avithout horses, waggons,
carts, carriages, and other means of transport, implements,
utensils, gear, and materials of every description, by the
existing or accustomed roads or way, or any other roads,
() Ante, p. 143.
CHAP, xxiv.] LICENSES AND LEASES. 671
tramroads, rail, waggon, or other ways to be hereafter con-
structed by the said lessee without any hindrance or moles-
tation of or by the said lessor, except and reserved unto the Reserva-
said lessor all seams, veins, beds, and substrata, ores, metals, ^"g^f
minerals, and other profitable substances (save limestone all other
and limestone rock), and all clay, marl, gravel, and other or
earth within or under the last-mentioned land, and, as inci-
dent thereto, full liberty either with or without her agents,
servants, and workmen, and others, by her duly authorized
in that behalf, at all times to search for, work, win, and
dress, make merchantable and warehouse, or in any other
way stow and leave upon the said lands, or remove by any
means therefrom, the said excepted minerals, and to do all
acts and use all ways and means necessary, proper, or con-
venient for executing the purposes aforesaid, with due and
reasonable efficiency, but not so as in the exercise or en-
joyment thereof, to obstruct the said lessee in the exercise
and enjoyment of the powers hereinbefore granted to him.
And also except and reserved unto the said lessor an unin-
terrupted right of way and passage at all times hereafter
for herself and her tenants, under-tenants, agents, servants,
workmen, and others by her duly authorized, with or with-
out horses, beasts, cattle, carts, or carnages, across, through,
over, and along all or any roads or ways for the time being
used upon and through any parts or part of the said piece
of land hereby leased at her free will and pleasure, as well
for the due and convenient occupation and enjoyment of
any lands adjoining as for making available the mining
powers hereby reserved. And also except and reserved unto
the said lessor full liberty by herself, or by or with her
tollers, agents, servants, workmen, and others, by her re-
spectively in that behalf authorized, either for the purposes
of the mining powers hereby reserved, or for any other
lawful purpose, at reasonable and convenient times to de-
scend or otherwise enter into all workings in or under the
said piece of land hereby apportioned and leased, and use the
shafts, or other workings, machinery, and gear of the said
lessee for the time being in or about the said hereby de-
mised premises. To have and to hold the said piece or iiabendum
672 PRECEDENTS FOR [CHAP. xxrr.
parcel of land, and tlie limestone and limestone rock and
premises hereby demised, unto the said lessee for the full
term of twenty-one years, commencing from the day
Redden- ^ ) Yielding and paying (b) yearly and every
dum. year during the said term unto the said lessor, for the sur-
face of the said lands and premises hereby leased, the rent
of sterling by four equal quarterly payments, free
from all deductions whatsoever, parliamentary, parochial,
or otherwise (the landlord's income or property tax only
excepted), the first payment of the said rent to become due
and be made on the day of . And also
yielding and paying yearly, and in every year dm-ing the
said term, unto the said lessor, for and in respect of the
powers of quarrying and obtaining and removing limestone
and limestone rock, and other the powers and authorities
hereinbefore described and hereby leased, the sum of l^d.
per ton for eveiy ton (to be fairly weighed pursuant to the
covenants hereinafter contained) of limestone or limestone
rock which shall from time to time be raised or gotten by
quarrying, excavating, or otherwise from and out of the
said piece or parcel of land and premises, to be paid on the
surface of the said land hereby leased immediately after the
weighing of such limestone and limestone rock as aforesaid,
and at least once in every three calendar months in each
year, and clear and free of, and from all present or future
taxes, rates, assessments, charges, and deductions, whether
parliamentary, parochial, or otherwise (the landlord's in-
come or property tax only excepted). And also from time
to time during the said term, as often as at the end of any
year terminating on the day of , the
monies actually paid under these presents during that year
in respect of the renter royalty of l^d. per ton hereinbefore
reserved, shall not amount to the sum of 20 sterling,
yielding and paying to the said lessor, upon the day so ter-
minating each such year, a sum of money of such an
amount as, together with the monies so paid during that
year in respect of the reservation last aforesaid, will make
up the full sum of 20, and every sum of money to become
(&) Ante, pp. 294, 515.
CHAP, xxiv.] LICENSES AND LEASES. 673
payable under this reservation shall be paid, free from all
deductions, for or on account of any taxes, charges, rates,
assessments, or impositions, or any other cause or thing
whatsoever (except the landlord's property or income tax).
And the said lessee hereby covenants (c) and agrees with the Covenants
said lessor that he, the said lessee, will and shall during the by e
said term hereby created, well and truly pay unto the lessor Payment
the said several yearly rents, or sums of money hereinbefore
reserved and made payable on or at the days or times and
in the manner hereinbefore appointed for payment thereof,
respectively free from all charges and deductions whatso-
ever, except as aforesaid. And will and shall accordingly, TO weigh
at his own costs and charges, from time to time, as often as hmestone -
1600 tons of limestone or limestone rock shall have been
excavated or obtained from and out of the said land and
premises, and at least once in every three calendar months
respectively of each year fairly weigh upon some conve-
nient part of the surface of the same land, all the limestone
or limestone rock for the time being raised, excavated, or
obtained in, upon, or under the same land, and not pre-
viously accounted for to the lessor. And will and shall give
ten days' notice at the least to the lessor, or her known
agent or toller, at the known residence or office for the
time being of such agent or toller, of the day, hour, and
place when and where every such weighing will be made,
in order that she may be present or represented thereat,
and take part in the same. And also will not on any ac-
count, or for any purpose, remove or take away from the
said lands, or crush, or burn into lime any of the said lime-
stone or limestone rock, or suffer the same to be removed,
crushed, or burned by any other person or persons whom-
soever, until the same shall not only have been so fairly
weighed as aforesaid, but until the rent or royalty hereby
reserved in respect thereof shall have been so paid as afore-
said. And also that all the weights, beams, and scales used
by the said lessee for the purposes aforesaid, shall be in all
respects fair. And also that the said lessee will and shall Payment
pay and bear all tithes, or rent charges in lieu of tithes, and of taxea>
(c) Ante, p. 296.
2x
674; PRECEDENTS FOR [CHAP, xxiv
all taxes, rates, assessments, and charges whatsoever, whether
party, parochial, or otherwise, in respect of the premises
hereby leased (the landlord's property and income tax alone
Power of excepted). And further, that in case any or either of the
ess ' rents hereinbefore reserved, or any part thereof, shall not
have been paid by the space of twenty-eight days next
after any day or time hereinbefore appointed for the pay-
ment of the same, or in case any limestone or limestone
rock shall have been weighed, crushed, or burnt into lime,
or removed without such prior notice having been given to
the lessor, or her agent or toller as aforesaid, then in any
such case, and although no demand shall have been made
of the rent for non-payment of which such entry may be
made, should the same have been made on that account, it
shall be lawful for the lessor to enter upon and into the
premises hereby leased, or any part thereof, and to seize all
the limestone and limestone rock, and lime, engines, ma-
chinery, goods and chattels then and there found, or any
part thereof, and whether in any waggon, cart, or other
carriage, or vessel laden or in course of being laden there-
with. And either to detain the same upon some part of
the said quarries and premises, or the adjoining lands, until
the unpaid rent or royalty (should such entry and seizure
have been made in respect of the non-payment thereof)
shall be paid, or until the limestone or limestone rock, and
lime so weighed, crushed, and burned without such prior
notice as aforesaid (should the entry and seizure have been
made on that account), shall have been weighed at the
expense of the said lessee in the presence of the lessor, or
her known agent or toller, and until in either case all the
costs, charges, and expenses of and attending such seizure
For effect- and detention shall have been paid. And also that the said
uall y lessee will and shall conduct the quarrying of the said
working > _ . .
the quar- limestone and limestone rock hereby leased in a skilful,
workmanlike, fair, careful, and tenantlike manner, and
raise and get in each quarter of a year during the said
term, as large a quantity of limestone or limestone rock as
reasonably can be consistently with the rules and practice
of good quarrying and a due regard to the interests of the
CHAP, xxiv.] LICENSES AND LEASES. 675
lessor. And will and shall at all times during the said For repairs,
term, well and sufficiently repair and uphold all kilns and
other buildings which shall have been erected or set up in
or upon, or shall be requisite to be maintained for the use
of the said quarry, or any purpose connected therewith, or
with the workings thereof, and all engines, machinery,
utensils, buildings, and fixtures in, upon, or about the same
in a proper course of \vorking and state of repair. And in
particular, will and shall well and sufficiently secure and
keep open and support with proper timber and fixed
stemples and props, or other effectual and durable ways
and means, shafts, excavations, and other workings, which
shall be driven, sunk, or made on the said lands within the
limits aforesaid, and shall for the time being continue to
be material or useful for the proper and efficient working
of the said quarry. And also will and shall forthwith erect, Fences,
and all times during the said term of twenty-one years, at
his own expense, constantly repair and maintain a sufficient
fence (d), with proper gates around the said piece of land
hereby leased, for the protection of man and beast against
damage or injury by reason, or means, or in consequence of
any shafts, pits, quarries, or excavations which may be
made or opened by the said lessee, or by any one under his
authority, or of any other matter or thing which may be
done by him or them upon, within, or under the said land
and premises. And also shall and will during the said Accounts,
term, keep upon some convenient part of the said premises
proper books of account, and make therein, from day to
day, full, true, particular, and legible entries of the work-
ings of the said quarry or quarries, and the quantity, size,
weight, or measurement and quality of the limestone or
limestone rock raised or obtained therefrom, and containing
all particulars of dates, facts, and circumstances, necessary
or proper for ascertaining the amount of the rents which
shall from time to time become payable by virtue of these
presents. And will at all times during the said term permit
the lessor and her agents to have free access to the said
books of account, to inspect, examine, and make extracts,
(d) Ante, pp. 213, 262, 647.
2x2
676 PRECEDENTS FOR [CHAP. xxiv.
or copies of or from the same. And also will, at least once
in every three calendar months, during the said term, or
oftener if more convenient to the said lessee, render at his
own expense to the lessor or to her agent or toller, a true
and particular account of all limestone and limestone rock
raised, quarried, excavated, or obtained from the said land
and premises hereby leased, and crushed, and burned into
lime, and made merchantable, since the last preceding ac-
count, if any, and of the quantities, weights, or measure-
To make a ments and qualities of the same. And also that the said
inspection, lessee will and shall at all reasonable times during the said
term hereby created, permit and also assist the lessor, either
by herself, or by or together with her agents and other
persons by her employed in that behalf, peaceably to enter
into and descend any quarry or quarries, shafts, or excava-
tion upon or under the premises hereby leased, in order to
examine, measure, and take plans of the shafts, excava-
tions, and other works thereof, and to view and search all
or any part of the same quarries and premises, including
the engines, machinery, and apparatus belonging thereto,
and ascertain the state and condition thereof respectively,
and the manner in which the workings there are being
carried on, and the amount of limestone or limestone rock
which shall have been raised, or obtained, and removed
therefrom, or for any other lawful purpose, and for that
purpose to make use of the machinery, tackle, and other
apparatus belonging to the said quarry or quarries and works,
as often as the said lessor may deem necessary ; and so
often as upon any such view and search had, any want of
reparation or other defect whatsoever in the state and condi-
tion of the said quarries and premises, or any default or
omission in the working of the same, contrary to the cove-
nants or agreements herein contained of the said lessees
shall be discovered, and notice thereof in writing be given
to the said lessee by the lessor, all such wants of reparation,
defects, defaults, and omissions shall be made good and
supplied by and at the expense of the lessee within three
calendar months next after such notice thereof shall have
been given as aforesaid. And also that the said lessee will,
CHAP, xxiv.] LICENSES AND LEASES. 677
at the expiration or other sooner determination of the said Leaving
term of twenty-one years, deliver up unto the lessor the
said piece of land, quarries, workings, and buildings, and
other the premises hereby appointed and leased, in good
condition, tenantable repair, and perfect working order,
ready for the future working of the same. And also will
and shall, at the expiration of the said term of twenty-one
years, if required by notice in writing from the lessor given
to the said lessee three calendar months or upwards pre-
viously thereto, leave upon the said premises all the engines,
crushing-mills, machinery, and apparatus then being on the
said premises (including gear, utensils, implements, iron
railways, old iron, and materials then used in and about the
works), and all fixtures belonging to the said lessee, or such
of the said engines, machinery, and apparatus and fixtures
as shall be specified in such notice for the lessor, the same
to be taken and paid for at a valuation to be agreed upon Arbitra-
by the said lessor and lessee at the expiration or sooner de- tlon -
termination of the said term of twenty-one years, or in case
of their failing to agree and so differing, to be determined
by two arbitrators or their umpire, to be appointed in the
usual manner (d). And lastly, that the said lessee will not Against
nor shall, at any time or times hereafter, assign over or un- M
derlet, or in any manner part with the possession of the said
piece of land, quarries, powers, and premises hereby ap-
pointed and leased, or any of them, or any parts or part
thereof, without the previous license in writing of the
lessor. Provided always, and it is hereby agreed and de- Proviso for
clared, that in case the rents hereinbefore reserved or either re
of them shall not be duly paid according to the reservation
and covenant for payment of the same respectively herein-
before contained, and shall continue not to be paid for the
space of forty-two days next after any one of the several
times whereon the same ought to have been paid, and
although no formal demand of payment of the same shall
have been made, or if the said lessee shall become bank-
rupt, or assign his estate or effects, or any part thereof in
trust for his creditors, or compound for the payment of his
debts, or if any execution shall be levied on his or their
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