lease to be subsisting, but that the Bill should be dismissed as to the second point, whether the lease was determined or not. The costs were divided according to the issue of the suit. (a)

It will be afterwards seen, on what other occasions the Court of Chancery has interfered with respect to the enjoyment of mining property. (b)

The following decision may here be mentioned:-In a lease of mines and smelting mills in a waste there was the recital of an agreement that the lessees should take down a smelting mill, and erect a mill of larger dimensions, with several other buildings upon another peice of ground in the same waste, which were thenceforth to become the property of the lessor and the two other proprietors of the mines of the waste. There was a covenant on the part of the lessees to keep and deliver up at the end of the term in good repair the new mill to be erected. The lessor was not entitled to the general property in the waste, but he had power to erect buildings and smelting mills. It was held, that, though the covenant did not expressly extend to the erection of the new mill, there was an implied covenant to fulfil the terms of the agreement. It was also decided, that the covenant ran with the land, that is, the mines demised, so as to be available to the assignee of the reversion. The covenant was considered to tend to the support and maintenance of the subject of demise. (c)

In another case, the owners of several distinct iron works joined with other persons in forming a railway, and severally engaged that they and their assigns would take all the lime-stone used in their works from a certain quarry, and carry it, and the ironstone from their mines to their furnaces along the railway, on payment of a certain tonnage. The partnership deed of the railway recited that the strangers joined in the scheme in consideration of those benefits.-The owners of one of the iron works sold them to a purchaser with notice of the covenant. It was held that he was not bound by the covenant, on the ground that the covenant was entered into by mere strangers, that there was a want of privity, and that parties could not be allowed to invent new modes for the enjoyment of property to be transmitted to remote persons, and impressed with peculiar conditions. It was creating a new species of tenure. (d) The latter reasons for this decision have not been aquiesced in, and they seem to be quite open to dispute. The case must rest upon the want of privity. (e)

SECTION III.

LICENSES TO WORK MINES.

It has been before remarked, that there is a great distinction between

(a) Greene v. Sparrow, Reg. Lib. A. 1725. fol. 120. 124 cited 3 Swanst. 408.

(b) See chap. viii., ix., and xii.

(c) Sampson v. Easterby, 9 Barn. and C, 505. 1 Cromp. and Jer. 105.

(d) Keppell v. Bailey, 2 Myl. and Keen. 517,

(e) 2 Sug. V. and P. 502.

lease of mines and a license to work mines. The former is a distinct conveyance of an actual interest or estate in lands, while the latter is only a mere right or incorporeal hereditament to be exercised in the lands of others. We may now proceed to notice the difference in the creation of those interests, and to describe the general properties of a license which will be found to have much resemblance, in many respects, to an actual lease.

In order to ascertain whether an instrument must be construed as a lease or a license, it is only necessary to determine whether the grantee has acquired by it any estate in the land, in respect of which he might bring an action of ejectment. If the land is still to be considered in the possession of the grantor, the instrument will only amount to a license, and though the grantee of the license will certainly be entitled to search and dig for mines according to the terms of this grant, and appropriate the produce to his own use, on payment of the stipulated rent or proportion, yet he will acquire no property in the minerals till they are severed from the land, and have thus become liable to the recovery in an action of trover. It must be remembered, that in order to constitute an actual lease of mines it is not necessary for the grantor to acquire any right or interest in the surface; for minerals have been shown to be capable of forming a distinct inheritance in the lands of which they are part, and, consequently, an actual estate may be both created in and restricted to any specified kinds of minerals. But a license is created only where the grantor has acquired no right of property to any part of the soil or minerals, till they are separated from the general inherit

ance.

If a man, says Lord Coke, grant to another to dig turves in his land, and to carry them at his will and pleasure, the land shall not pass, because but part of the profit is given, for trees, mines, &c., shall not pass. (a)

It has certainly been determined, that the intention of the parties may constitute an actual demise, whether the words be in the form of a licence, or a covenant, or an agreement. But it must sufficiently appear from the construction of the granting part, that it is clearly the intention of the parties, that the one should divest himself of the possession, and that the other should come into it for a determined time. (b) And it must be suffi ciently apparent, that there is nothing in the grant of a liberty to work mines at all inconsistent with the possession being still reserved to the grantor.

This distinction has been clearly recognized by several decisions.

In a case before cited, there was a covenant for a person and his heirs and assigns at all times thereafter to enter and search and dig for coal and other minerals, and carry them away to their own use. It was decided, that

(a) Co. Litt, 4 b.

(b) See Bacon's Ab. Leases, K.

the words only amounted to a license or liberty to dig and work the mines. (a)

In another case, an owner of the land granted full and free liberty to work for tin, copper, and other minerals in the Crinnis Mines, in the county of Cornwall, for twenty-one years; and there was a similar lease relating to another mine called Campdown. It was held by Lord Eldon, that this was nothing like a demise of mines, though he did not mean to say that similar principles would not apply to it. These leases, as they are called, were not demises of the mines, but simple grants of licenses and liberties to work,

and there was no estate whatever in the grantees. (b)

The same case afterwards came before the consideration of the Court of King's Bench. The indenture was described as giving also full liberty to the grantees to erect within the limits of the set thereby granted, sheds, engines, and buildings, and to turn all water and water courses to their use, and to cut any channels over the lands for conveying the water; and there was an exception to the grantor of full liberty to make use of any of the adits or levels, and of sinking any shafts for the purpose of working mines in other lands, and of conveying any water course over the premises granted. It was contended, that the language of these grants and exceptions, and the clause of re entry which enabled the grantor and his heirs to repossess and enjoy the lands in case of breach of any of the covenants, showed, that an interest in the soil was intended to pass. But it was held by the Court that the deed operated as a license only. Lord Tenterden, in delivering the judgment of the Court, observed, that the doubt had arisen from the inaccuracy of some of its expressions, which seemed to import that the grantor supposed himself to have done that by the granting a part of the deed, which, it was insisted, the words of the granting part did not warrant. But the instru ment, though inaccurate, was a regular formal deed, containing all the formal and orderly parts of a deed of conveyance enumerated by Lord Coke, except the clause of warranty. (c) One of the proper offices of the premises or granting part of a deed, as stated by Lord Coke, "was to comprehend the certainty of the tenements" to be conveyed. This indenture, in its granting part, did not purport to demise the land, or the metals or minerals in it, but a liberty to dig for metals and minerals, and to dispose of those only that should be found there within the term, the grantor parting with no estate or interest in the rest. If so, the grantor had no estate or property in the land itself, or any particular portion of it, or in any part of the ore, metals or minerals, which are not obtained. He acquired no more than a mere right to a personal chattel, when obtained in pursuance of incorporeal privileges granted for the purpose of obtaining it. It had been contended

(a) Chetham v. Williamson, 4 East, 469. 1 Smith, 278. (b) Norway v. Rowe, 19 Ves. 158.

(c) Co. Litt. 6 a.

that there were words in the deed which showed an intent to demise, particularly in the clause of re-entry. A proviso of that description was in itself not less applicable to a license to dig and work for mines, than to a demise of metals and minerals, because, under such a license, works may be effected, and a corporal possession had, which it might be competent for the grantor to resume. The expressions in the deed might probably be attributed to want of care and caution in its preparation; but, supposing it otherwise, still they could have no further effect, than to show that the grantor who used them supposed that the soil or minerals, and not a mere liberty or privilege, passed by his deed; and if the words used in the granting part of the deed were of doubtful import, and would bear the construction contended for, they might, with the aid of others showing the intent, be sufficient to pass the land or soil, and support an action of ejectment. But the words of the granting part were plain and not of doubtful import; and as the proper office of that part of the deed is to denote what the premises are that are granted, and is the place where the intent of the grantor, and what he has actually done in that respect, is more particularly to be looked for, recourse must be had to it to see whether he has actually granted what it is urged his expressions denote that he supposed he had granted, for the question properly was not what he supposed he had done, but what he really had done by his grant. (a)

It will appear, therefore, from the preceding case, that, notwithstanding the rules of law that a grant is to be taken most strongly against the grantor, and that the intention of the parties is, if possible, to be supported, the deficiency of the granting part of a deed in the description of the thing granted, will not be assisted by the intention of the parties expressed in the other parts of the decd, unless that description may easily admit of an interpretation corresponding with the other portions of the deed. No expression of intention, it must be presumed, however strong, if it is not found in the proper place, will suffice so far to control the operation of this rule, as to vest any other premises in the grantee than those mentioned and described in the granting part. A more liberal rule of construction prevails with respect to wills. But a deed is a formal instrument, and is interpreted according to the strict rules of construction. But it will be obvious, that there may be recitals or expressions even in a deed, though they might not be discoverable in the deed mentioned in the above case, which might be construed by a Court of Equity as an agreement to perform what that particular act had failed to accomplish. In like manner, it is conceived, from the more indulgent construction which prevails in the interpretation of wills and agreements, expressions of still less force contained in such instruments might be held sufficient to effectuate the supposed intention of the parties. But it may well be doubted, whether the expressions made use of in the above deed

(a) Doe dem. Hanley v. Wood, 2 Barn, and Ald. 724.

would be sufficient to denote any further intention than that established by the decision.

A license to work mines is often framed, as in the above case, in the same manner as a regular demise, with formal provisoes and covenants entered into by both parties. The observations which have already been made with respect to the forms of leases, will, therefore, be generally applicable to licenses of this description.

But it remains to consider some incidents which are peculiar to licenses.

A license to work mines is not revocable or countermandable at the will of the grantor, because it confers an interest in lands (a) and because it is supported by a consideration, when a rent is paid to the owner of the land. (b) But it may be revocable by agreement.

Upon the subject of licenses, there arises a very important question with respect to mines-viz., whether those instruments are exclusive of the rights of others?

It may be stated, as a general rule, that a license to work mines is not exclusive of the similar rights of the grantor, or of those who may claim under him by virtue of a similar authority.

This was decided in a very early case. Lord Mountjoy, being seised in fee of the manor of Canford, sold it in fee with the reservation, and with a covenant on the part of the purchaser, that Lord Mountjoy, his heirs, and assigns might dig for ore in the lands, (which were great wastes) parcel of the manor, and dig turf also for the making of alum. It was held that, notwithstanding this grant, the purchaser, his heirs, and assigns might dig also, like the case of common sans nombre. (e)

In the case of Chetham v. Williamson, (d) a similar reservation of coals was made in a purchase deed, and the license was held not to confer an exclusive right to the coals. Lord Ellenborough observed, that no case could be named where one who had only a liberty of digging for coals in another's soil had an exclusive right to the coals, so as to enable him to maintain trover against the owner of the estate for coals raised by him; and after citing the case of Lord Mountjoy, said that those who compared it to a grant of common sans nombre, used that as the strongest instance to show that it could not be an exclusive right.

It appears, therefore, that an exclusive right to minerals will not necessarily be conferred by the grant of a license to work them. But it must not be concluded from these decisions that the license to work may not be in such a form, as effectually to vest in the grantee a sole and undisturbable right to the minerals. It may be generally laid down, that if it appear to be the in

(a) Doe d. Hanley v. Wood, 2 Barn. and Ald, 738.

(b) See Winter v. Brockwell, 8 East. 308. Tayler v. Waters, 7 Taunt. 374. Liggins v. Ingo, 5 Moo, and P. 712,

(c) Co. Litt. 165 a. Godb. 18. 1 And. 307, 4 Leon. 147,

(d) 4 East. 469.