Neither of the royal metals, however, are usually found in this country in union with any other metals but lead, though silver has been found in Huel Alfred, in Gwinear, Cornwall, in green corbonate of copper, and in Huel Ann, in Phillack, Cornwall, with arsenical pyrites. And it may be considered, that, on this account, no fear need be apprehended of the Crown being enabled to exercise its right,

There is a considerable quantity of silver extracted from lead ores: and the rate of pre-emption has been raised by a recent statute, (a) by which, after reciting that in consequence of the lapse of time and change of circumstances, the former rate had been inadequate to the increased expense of raising lead, it is enacted that the rate shall thenceforth be £25 per ton. Since the passing of this act, the price of unsmelted lead has never been beyond the sum of £15 per ton, and even during the late war when the value of lead, like that of other metals, was extraordinarily high, it never reached the sum of £23 per ton. About the year 1807, the price closely approached to that sum, but it is now considerably reduced. Lead adventurers have, therefore, at present, nothing to apprehend from the right of pre-emption. But the subject cannot be dismissed without the observation, that the rate of pre-emption over all the metals ought to have been permanently fixed by reference to the market price of the day.

CHAPTER II.

ON THE RIGHT TO WORK MINES.

A person may have an undisputed right of property in mines, and may yet have no power to avail himself of that right; and again, a person may have a distinct right of possession in mines, as part of his tenement, without being entitled to exert any act of ownership over them.

Such, is the condition of the lord and tenant, in the absence of special custom, with respect to mines in copyhold and customary lands. (b) And there are other persons who, from the limited nature of their interests, or the peculiar quality of their estates, are subject to similar incapacities, and are not permitted to despoil the inheritance by working mines.

It is unnecessary to say that when mines form part of the whole unsevered inheritance, an owner in fee simple possesses, in all freehold lands, an unrestricted right to work the mines in his estate.

It is equally clear, that all owners in fee whose title to mines depends upon custom, against the presumption of law, will be entitled to the right to

(a) 55 Geo. III. c. 134.

(b) See chap. ii.

work them, as the lord against the tenant, or the copyholder or commoner against the lord. For the right has been gained or preserved by the custom founded upon such acts of ownership. The right to work does not, in this instance, depend upon the right of property. The latter right is established by the former.

It has also been seen (a) that the lord is presumptively entitled to work mines in the commons and wastes of the manor, and that the Crown is sup posed to have the right to enter the lands of a subject to search for and work mines of gold and silver. (b)

It remains, however, to be seen, in what cases the owner of mines is entitled to work them without the concurrence of the owner of the surface, when the property in mines forms a distinct inheritance and possession.

It has been expressly decided, in a case of some importance, first, that the right to enter and work mines is necessarily incident to a grant of mines, without any express authority for that purpose; and secondly, that this pow er cannot be restrained by a special power given in the affirmative, which may authorise more acts than would be implied by law, but which will in no wise exclude the full operation of law. (c)

In that case, Sir Thomas Danby, a former owner of the demesne lands of a manor, had enfcoffed the Earl of Sussex of several closes, except and reserving unto himself and his heirs all the coals in the lands and premises, together with free liberty for Sir Thomas and his heirs at all times thereafter during the time that the said Sir Thomas and his heirs should continue the owners and proprietors of the demesne lands of Farnley, to dig pits, or otherwise to sough and get coals in the said lands and premises, and to sell and carry away the same with carts and carriages, or otherwise to dispose of the same coals at his and their wills and pleasures, making reasonable satisfaction for damages. Afterwards the manor and demesne lands of Farnley were sold by the Danby family to the defendant. An action of trespass was brought by the plaintiff who was then owner of the lands in question, against the defendant, for entering and working for coal. On demurrer, it was argued for the plaintiff, that the heirs of Sir Thomas Danby having ceased to be owners and proprietors of the demesne lands of Farnley, the defendant had no right to enter and dig pits. It was admitted, that if there had been a genral exception of the coal to the feoffor and his heirs, the law would imply a right to get it co extensive with the reservation; but it was contended, that the express liberty to take the coal limited the duration of the privilege by mutual consent and contract. Bayley, J., in delivering the judgment of the court, took an elaborate view of the subject, and said, that an exception was distinguished from a reservation by its being part of the thing granted, and in existence at the time of the grant, that it was always taken most strongly (a) Chap. ii. (b) Chap. iii.

(c) Earl of Cardigan v, Armitage, 2 Barn. & Cress. 197. 3 D. & R. 414.

against the feoffor or grantor, and that when any thing is excepted, all things that depend upon it, and are necessary for obtaining it are excepted also.(a) The coals were part of the thing granted, and in esse at the time. The consequence, therefore, was, that the property in the coals was never out of Sir Thomas Danby the feoffor, and would have remained in him and his heirs as before, without words of inheritance in the exception, and a right, as incident, to get the coals, and do all things necessary for the obtaining of them, would have been excepted also. The express liberty was introduced by the words "together with," as if the intention were to increase what had preceded, not to diminish; and he took it to be a general rule, that words tending to enlarge should not, unless the intention was very plain, be taken to restrain.(6) It might be taken as clear, that an express liberty did not always control what would otherwise exist, especially if the express liberty went beyond what would be implied. To give it a controlling power, the intention that it should have that effect must be very plain. (c)-The special power had its necessary use, for it went beyond the incidental power which the law would imply. The incidental power would warrant nothing beyond what was strictly necessary for the convenient working of the coals; it would allow no use of the surface; no deposit upon it to a greater extent or for a longer duration than should be necessary; no attendance upon the land of unnecessary persons. The express power gave great latitude in these respects. It had therefore its necessary use, though it worked nothing in restraint of the incidental right which Sir T. D. and his heirs would otherwise have had.

It would appear, therefore, that though a grant or exception may be controlled by express words of restriction or limitation, yet, if not so controlled, the grantor will have all the powers which are by law considered to be incident to such a grant for the full and necessary enjoyment of it. Any special power, as in the above case, will be limited in its duration and consequences, by the particular expressions which confer it.

The nature and extent of these implied powers, and of others arising from express stipulation, will be noticed in a subsequent part of the treatise. (d) It is scarcely necessary to observe that the above remarks can have no application to mines in copyhold lands, which are not absolutely vested in the grantor. The lord may grant the property in mines, but he cannot grant what he may not himself possess the right of entry to work them. It may sometimes happen, however, that the lord may have made a grant in fee of the minerals in copyhold lands not subject to any special custom, to third persons, and then enfranchises the lands, without excepting the minerals.-It might be contended that the mines, as in other freehold lands, formed a distinct inheritance, and that the grantees had then a right to the possession of their property. But it is presumed, the grantees would not be in the situa

(a) Shepp. Touch. 78, 100,

(b) Winter v. Loveden, Lord Raym. 267.

(c) Stukeley v. Butler, Hobart, 168, and see 8 Ass, 10, and Dy. 19. (d) See chap, iv.

tion of parties claiming the full benefit of an unrestricted grant, inasmuch as at the time of their grant no right of entry could possibly be passed from the grantor, and no reservation had been made in the deed of enfranchisement, which might enure for the benefit of the grantor. The consequence would appear to be, that the mines would be severed from the demesnes of the manor, and would form a separate inheritance as freeholds generally, but that they would remain as inaccessible to the proprietor as before the act of enfranchisement. But if the grant of the minerals were made for a limited period, the owner of lands would, in such cases, of course be entitled to them after the expiration of that period. (a)

When the mines are excepted in the deed of enfranchisement, full powers to enter and work should be given; for otherwise it might be doubted whether the lord or his grantee would be in any better condition with respect to the mines than before. The exception merely operates upon what he is already possessed of. Illa pars quam retinet semper cum eo est et semper fuit. (b) But it can confer nothing more, except what may be presumed to have been intended by the nature of the contract. The exception cannot itself form a reservation. The exception is always part of the thing granted, and in existence at the time of the grant. A reservation, on the other hand, is always of a thing not in existence, but newly created, and arising out of the subject of grant. (e) The mines may be excepted, but the right to work them should, in such cases, be also reserved. The owner of the land grants nothing to which a legal presumption can attach. But the reservation of a right to work will operate, by way of contract, as the grant of a new incorporeal hereditament in favour of the lord.

We are now to discuss the rights of those possessed of more limited interests, and we may first consider the privileges of proprietors, when the mines form an unsevered portion of the general inheritance.

Most of the different estates which may subsist in a fee simple can only be created by some of the common assurances recognized by law. It is not unusual to insert, in instruments of this description, distinct powers or reservations with respect to the working of mines. These powers, however, will be reserved for future consideration, and we shall at present confine our attention to the interests of those claiming either by act of law, or under instruments which contain no special clauses or directions with respect to mines.

It may, in the first place, be generally premised, that it is an act of waste to work mines or quarries. (d)

(a) Townley v. Gibson, 2 T. R. 701.

(b) Co. Litt. 47 a. Brooke's Abr. title Reservation, pl. 46.

(c) Shepp. Touch. 80.

Lock, 1 Ad. and Ell. 744,

(d) Co. Lit. 53 b, 54 b. Manwood's case, Moore, 101,

Fancy v. Scott, 2 Man, and Ry, 335. Doe, dem. Douglas v.

Moyle v. Moyle, Ow. 66. Nowell v. Donning, 2 Rol. Abr. 816.
Astry v. Ballard, 2 Mod. 193.

A tenant in tail has, like a tenant in fee simple, an estate of inheritance in the lands limited to him, but his estate must descend in the particular line marked out for its devolution. Notwithstanding this limited mode of descent, an estate in tail has certain incidents annexed to it which cannot be restrained by any condition, and amongst others, is the power of the tenant to commit waste. A tenant in tail, therefore, may fell timber, pull down houses, and open and work mines. But the waste or the act of seve rance from the inheritance must be committed in his own lifetime, for the heir will be entitled to the remainder as part of the fee. (a)

The Court of Chancery will never restrain a tenant in tail from commit. ting waste. (b)

A tenant in tail

after possibility of issue extinct, has only an estate for life in the lands. This estate has, however, been derived from an estate in fee tail; on this account, he possesses more than the ordinary powers of the tenant for life, and having once had the power of committing waste, he is still dispunishable for waste, because he continues in the seisin by virtue of the livery upon the estate tail. (c)

But although a tenant in tail after possibility of issue extinct has the power to commit waste, by the common law, yet he cannot commit wanton or malicious waste, in which he will be restrained by the Court of Chancery in analogy to the rule to be presently noticed with respect to a tenant for life without impeachment of waste. (d)

The privileges of a tenant in tail after possibility of issue extinct are personal, and arise from the privity of estate. His grantee, therefore, will be a mere tenant for life. (e)

A tenant for life, without being authorised, cannot commit waste. But he will be entitled to take the minerals upon his lands for the purposes of husbandry and repairs. One of the incidents to his estate is his right to estovers. (f) This word has been generally defined to mean an allowance of necessary wood; but there seems reason to contend that the original wood, estoffe, whence comes the English word stuff, might comprise all that was necessary for the cultivation and repairs of the estate generally. The statute of Westminster, 2. c. 25, gives an assize of novel disseisin de estoveriis bosci, which would seem to show that the word was not used in necessary connection with wood. At any rate, there can be no doubt that a tenant for life may, in all cases, dig for gravel, lime, clay, earth, stone, or similar minerals for the repair of buildings and the manuring of the land. (g) It

(a) 11 Rep. 50 a. Plowd. 259, Hard. R. 96.

(b) Forrester's Rep. 16. Glenorchy v. Bosville, Cas. Temp. Talb. 16.

(c) Co. Litt. 27 b. 2 Inst. 302. 1 Roll. Rep. 184.

(d) Abraham v. Bubb, 2 Freeman, 53, Anon. 2 Freem, 278. Lewis Bowles' case, 11 Rep. 83 a. Cook v. Winford, Abr. Eq. 221. Williams v, Williams, 12 Fast, 209.

(e) Co. Litt, 28 a. Aprice's case, 3 Leon. 241.

(f) Co. Litt, 41, b.

(g) Co. Litt, 53 b, 54. b, Moyle v, Moyle, Owen, 67. Roll. Abr. 816.