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coparceners may also, when competent, agree to any special enjoyment or partition in the usual way. (a)
Similar observations will apply to joint tenants, and tenants in common.
Mines, when held for chattel interest, will vest in administrators, in case of intestacy, and whether held for freehold or chattel interests, will also vest in the assignees of the estates cf bankrupts and insolvents. They will also be subject to the ordinary processes of executions on judgment.
Under the third section of the Statute of Frauds, existing interests in land may still be assigned and surrendered by act and operation of law.
Thus, if during a lease from year to year, the landlord, with the assent of the tenant, who quits the premises, accept and treat a third persen as his tenant, this will amount to a valid surrender of the former tenant's interest by operation of law. (6) And the acceptance of a new lease for a term, to commence during the existence of a former demise, amounts to a surrender of the first term, (c)
TRANSFER OF SIIARES.
In cases of partnership in mines, it usually happens, that the interest in the property is legally vested in one or more partners, in trust for themselves and the rest of the company. It may be useful, therefore, to consider in what manner a transfer of shares held under such circumstances should be eifected.
When the property is thus vested, the existence of the trust may be shown by any written evidence or admission of the parties which may suffice to establish the fact, and a bill in equity may be filed for the discovery of the trust.—But when the adventure is of any consequence, there should either be a conveyance of the property to the other partners in the shares to which they are entitled, or the trust should be declared by the trustees in a regular deed, in which should be expressed the respective interests of all parties interested in the property at the time of the execution. It will be seen in a subsequent part of this treatise, that it is of great importance that the objects of a mining company should be fully developed in a deed of copartnership, by which the partners may prevent many of the legal and troublesome consequences arising from such connections. (<2) It is very usual to effect both purposes by the instrument, (e) It may occasionally be
(a) See Bac, Ab. Coparc, C.
(A) Thomas v. Cook, 2 B. and Aid. 119. Phipps v. Sculthorpe 1 B. and Aid. 50.
(c) Hamerton v. Stead, 3 Barn, and C, 478. 5 D. and R. 206. And sec Woodfall on Landlord and Tenant, by Harr. c. vii. s. 8.
(d) See chap viii. (e) See Appendix.
sufficiently proper to include the stipulations of partnership in the deed of grant itself.
If the mines are held for a freehold interest, the cestuis que trust will, of course, be entitled to an equitable freehold; and if only for terms of years, they will be entitled only to an equitable chattel interest. If, again, the property is held under a mere agreement, all the parties interested will stand merely in a similar condition, and will be equally entitled to equitable interests only, cither of a freehold or personal nature. In all these cases, the shares of the cestuis que trust would be effectually bound by any written memorandum or agreement for transfer, which would, in equity, affect the legal estate, and control its disposition. In some cases, as where the adventure is of trifling importance, or when the period of enjoyment is very limited, it may be sufficiently prudent to dispense with any further means of security. But it will generally be most advisable to tranpfer the shares by an indenture of equitable grant or assignment, by which the conveying parties may be clearly estopped from asserting subsequent claims, and may enter into proper covenants with the persons acquiring the shares.
Notice of transfer should be immediately given to the trustees. This is often effected by the entry of the names of new partners upon the books of the concern, and recognition by their copartners. But if the trustees are not partners, express notice should be given.
If the person transferring the shares be one in whose name the property is held, and ho disposes of his whole interest, it will, of course, be proper that he should also divest himself of all legal and equitable title to the general property as well as the particular shares. This object may be attained in the manner already pointed out in the preceding sections. If there be only an agreement for the mining property, no further conveyance than that of the shares can, of course, be obtained.
These observations will apply equally to licenses either for freehold or chattel interests.
It is almost unnecessary to say, that the shares will follow the course of devolution and descent, and be subject to the usual incidents of real property, according to the nature of the tenure. Equity follows the law. If they are freehold of inheritance, they will descend to the heir in cases of intestacy, except in cases where, as we shall afterwards see, they are still to be considered in the nature of personal estate, and even then the heir will hold an equitable interest for those beneficially entitled. If the shares are leasehold for years, they will devolve upon the executor or administrator who will hold them upon the trusts of the will, or as part of the general personal estate of the deceased.
Transfers of shares in mines are often effected in a most careless and irregular manner, and so as frequently to lead to vexatious litigation. It should be strongly impressed upon the minds of all adventurers that their shares in mines can only be effectually transferred in compliance with the Statute of Frauds, the provisions of which have been already discussed.
In some cases, however, Courts of Equity have supplied the wants of a strict observance with the requisitions of that Statute; but this doctrine has been carried, in some cases, to an exorbitant extent, and Lord Redesdale might justly make the observation that it was absolutely necessary for the Courts to make a stand, and not carry the decisions further. (a)
It is decided, however, that if a purchaser take rightful possession of the property, (6) or if he expend money in improving the condition of the property according to the agreement, (c) the contract will be considered as in part executed, and the Statute will be deprived of its operation. But the payment of a small part of the purchase money only will not have that effectecZ) And it appears to be tho better opinion of the profession that even the payment of a considerable proportion will be equally inoperative. (e)
ON LEASES AND LICENSES.
I. Description of a mining lease.
DESCRIPTION OF A MINING LEASE.
The greatest portion of mineral districts are worked under leases or licenses, and questions of importance are frequently arising with respect to the validity and construction of these instruments. This subject has, therefore, been reserved for distinct consideration.
(a) 2 Scho. and Lef. 5.
(4) Butcher v, Stapely, 1 Vern. 363. Pyke v. Williams, 2 Vern. 465. Lacon p. Mertins, 3 Atk. 1. Wills r. Stradling, 3 Ves. 378. Bowers v. Cator, 4 Ves, 91. Gregory v. Mighell, 18 Ves. 328. Eine v. Balfe, 2 Ball, and B. 343. Morphea v. Jones, 1 Svranst. 172.
(c) Foxcraft v. Lister, 2 Vern. 456. Floyd v. Buckland, 2 Freero. 268. Mortimer v. Orchard, 2 Ves. jun. 243. Toole v. Medlicott, 1 Ball, and B. 393.
(d) Seagood v. Mcale, Prec . Ch 560. Lord Fingal v. Boss, 2 Eq. Ca. Abr. 46. pi. 12. Main v. Melbourn, 4 Ves. 720,
(c) Batcher v. Batcher, 9 Ves. 382. Clinan v. Cooke, 1 Scho. and Lef. 22. And see 1 Ca. and 0*. TS*. 1 Sag. V. and P. 208.
In pursuing this investigation, we may proceed, in the first place, to give a general description of a mining lease, to define its construction, and some of its legal incidents; to point out the distinction in the creation of an actual demise and a mere license to work mines; and to describe the nature and properties of a license. The right to grant interests of this description, and the manner in which, in some cases, that right must be exercised, will be discussed in the next chapter.
A lease should, after a proper description of the parties, proceed to demise under an adequate description, the subject of contract. No cases are reported on the subject of insufficient description of mines, though many disputes have arisen, as might naturally be supposed. When all the mines or quarries of any particular metal or mineral within a certain district, form the subject of demise, as is usual in the coal fields and limestone beds of the kingdom, no dispute can well arise, except with respect to the actual boundary of the surface, or that below corresponding with the surface. In such cases, all the specified products found within the line of demarcation will belong to the lessee. But metals are usually deposited in veins or lodes; and not like coal, which is always found in a state of stratification, corresponding more or loss with the crust of the earth. Now, in such cases, it is not the invariable, though not an uncommon practice, to demise all the minerals within certain bounds which are ascertained on the surface; but it is perhaps more usual to demise only particular veins, or known, or supposed deposits of metalliferous substances. These veins are demised for a certain length, and with a proportionate and adequate breadth. When there is only one adventure in operation within the same field, little difficulty is experienced; for if a new vein is discovered in the course of workings, the right to which it is desirable to acquire, this desire may usually be gratified without infringing upon the rights of other adventurers. But the lessor may, in some cases, be induced to withhold any further extension of grant, though it must be acknowledged, that in general, the conduct of extensive owners towards mining adventures is marked by great liberality and fairness of dealing. It also often happens that many of the veins, which may have been traced from a greater or less distance, are actually in lease at the same time, in the same parcel of ground. Thus, veins in the possession of different lessees, may actually intersect each other; or if not intersecting each other, the veins may, at any rate, come within the boundary prescribed for the proper breadth in each demise, or they may run into a district comprised in a deed of general grant. In such cases, there can be no doubt that the first grant must be sustained in all its vigour. Qui prior est in tempore, potior in jure. The second lessee cannot claim what has been already granted to the first. But the difficulty is frequently only half solved by the application of this plain rule of law. It may, in many cases, be exceedingly difficult to ascertain the identity of a vein, and a vein may be improperly or imperfectly described in the grant.
These difficulties may also be increased by the nature or disturbance of the stratification of the earth. It would be impossible, iu a treatise of this description, to give any accurate idea of the difficulties which might be occasioned by imperfect description; and it would be equally impossible to enter into any particular enumeration of the geological phenomena which might render the clearest description of no avail in ascertaining the rights of the parties. To instances of the first kind, there are no limits but those prescribed to the imperfections of language. And Nature, in her subterraneous operations at least, is not more to be depended upon than human efforts are, for regularity of proceeding. Thus, the course of two different veins may be interrupted by the intersection of a strong cross vein, which may produce almost unavoidable confusion to the respective rights of different adventurers.
But it is not only in the exploration of metalliferous veins that the mining adventurer is exposed to unpleasant encounters of this description. The same result may take place even in the working of minerals found in a stratified state, ami which are justly considered to be easier of search, though not always easier of attainment. For instance, a well ascertained stratum of coal may be the subject of accurate description and demise. There would appean to be little difficulty in such a case. But the whole stratification may be affected in a manner similar to the case just mentioned by an intersecting dyke, or vein of extraneous matter. Different strata of coal may have the same horizontal position on both sides of the disturbing dyke; but they may be totally changed in their relative situation to each other on each side. Thus, an upper stratum of coal may be thrown down so far as to correspond with the third or fourth stratum downwards on the other side; and these different but adjacent strata may be of the same thickness and quality, and may, in their general character, possess points of almost entire resemblance and identity. Suoh mistakes are often inevitable during what is called the process of boring or experimenting for coal; and even when the coal is actually in the course of working, it is possible that the error may still continue for a considerable time. The consequences resulting from such causes may be very serious. Veins and strata may be unconsciously worked by those who may, under circumstances of great hardship, be unexpectedly called upon to give up the produce of their successful labours to others who have established a superior claim. Again, the minerals may be fraudulently and violently] extracted by persons who are conscious of their want of title, but who may disguise or pervert the facts, and take shelter under the colour of a legal claim. Disputes may arise, the law be appealed to, and an expenditure, which may require almost the wealth of a prosperous mine to satiate, may be incurred; and it may happen, after all, that when the rights of the parties have been adjusted by the judgment of the