tention of a deed of grant or license, that the grantee should be solely and exclusively entitled to work for minerals, the grantor will be afterwards precluded from abridging or derogating from his grant by any attempt to exer cise a right, similar only indeed, but incompatible with his former disposition. This intention should properly appear in the granting part; for the use of the granting part as has been observed, (a) is to give an accurate description of the thing granted. It is an essential part of the thing granted, that it is freed from the interruptions and claims of others. If the description should fail in this respect, but the intention may still be gathered from other parts, or the general scope of the instrument, it would seem that, at law, the right to work would not be exclusive, but that the deed would create an equitable contract for an exclusive right, which would be binding upon the grantor, and those claiming under him. If this right could be considered to be included in a covenant entered into by the grantor, or if any particular recitals or expression should suffice to constitute a legal covenant, such a contract would even at law, be held to run with the land, and bind the assignees of any of its profits.

It would be useless, in the absence of decision, to consider by what particular expressions an exclusive right may be granted. It was contended, in one case, that the grant of "full and free liberty" to work was sufficient for that purpose, on the ground that if two persons had full liberty to work the mines, there would be a great interference with the rights of each other. (b) But it was not necessary to investigate that point in the case; and it may be safely asserted that such expressions would not be sufficient to confer an exclusive right; for they amcunt to no more than what would be implied by law. There must be some expression adequate to give the grantee a sole and exclusive privilege, incapable of being disturbed or interferred with. Questions of this nature seldom occur in practice; for almost all mines of any prospective value, not in the hands of the proprietors themselvs, are worked under leases, when these can be obtained. If, however, the minerals of a district were worked under two different licences, and by different adventurers, it is quite clear that such questions might become not only of paramount consequence, but of very difficult solution. In different mining adventures carried on in search of distinct kinds of minerals, there might arise abundant causes of dispute with respect to interference. When the same kind of material is the joint object of attainment, the rights of the parties might become still more embarassing. It is submitted, that in cases of actual interference in the course of mining operations, the claimants, under the first grant, would be entitled to a general preference. Qui prior est in tempore, potior in jure. But it is difficult to assert any general principle upon a subject which might, from its nature, become so exceedingly com

(a) See supra.

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

plicated in actual practice. The mode of working, the nature of the interference, the relative situation and priority of any particular operations, the designs of the parties, would all become important ingredients in the settle. ment of such questions; and it would appear, from analogous cases on mining subjects, that an expenditure of capital, labour, and time might in themselves create an equitable right to a sole enjoyment of the particular mines. (a)

From the above observations, it will be sufficiently obvious how important it is that mining adventurers should be furnished with either an exclusive license, or a regular lease. The latter is, in many respects, the preferable instrument.

It has been seen before, that leases, even for chattel interests, are now, under the proviso for making them void on breach of the covenants or conditions, only voidable at the election of the lessor-and that the same con struction is applicable to licenses for years. (b) But a license, whether for a freehold or a chattel interest, may, upon forfeiture, be determined by simple notice.

In the above case of Roberts v. Davey, the license was for twenty-cne years, and it was observed by Mr. Justice Littledale, that if it had been a freehold lease of land, it would have been necessary for the lessor to avoid it by entry, or if that were impossible, by claim. But that instrument was a mere license to dig, and did not pass the land-an actual entry, therefore, was unnecessary to avoid it—but by analogy to what was required to be done in order to determine a freehold lease, it seemed to follow that, to put an end to the license, the grantor should have given notice of his intention so to do. The giving of such notice in the case of such an instrument was equivalent to an entry or claim by the grantor of a freehold estate to which a condition is annexed. (e)

It was held in a case before cited, (d) that a proviso for re-entry was in itself not less applicable to a license to dig than to a demise of minerals, because under such a license, works might be effected, and a corporal possession had, which it might be competent for the grantor to resume. But this was not meant to convey the impression of the Court that entry was as necessary for avoiding a license as a freehold lease. A license to work nines, whether it be for a freehold or a chattel interest, is still an incorporeal hereditament, unattended with any present estate in the land out of which it issues. As such, it is, strictly speaking, incapable of actual entry. The works may be entered upon, but these do not constitute the subject of grant. It follows, therefore, that any such license may be determined by acts which

(a) See Norway v. Rowe, 19 Ves. 156-159.

(b) See last Section, and Doe d. Hanley v. Wood, 2 Barn. and Ald. 724, Roberts v. Da vey, 4 Barn. and Ad. 672.

(c) 4 Barn. and Ad. 672.

(d) Doe d. Hanley v. Wood, 2 Barn. and Ald. 740.

are applicable to the nature of the property, viz., by notice of the intention of the grantor to take advantage of the forfeiture committed by his grantee -and this notice, it is presumed, may be either express, or implied from acts of entry, or of notorious ownership. There is no distinction in this respect, between licenses for frechold interests and for years.

It is a general rule of law, that no rent can issue out of any incorporeal hereditament, because such inheritances are incapable of being distrained upon. (a) But the Crown is excepted from this rule, because by its prerogative all the lands of the lessee are liable to distress for rent (b) Rent, therefore, cannot, eo nomine, be reserved upon a license to work mines. Indeed, it may be doubted, whether in the case of an actual demise of mines without land, any rent liable to remedy by distress, can issue; for the works would not be demised, and there would be nothing on the subject of demise to distrain. But the reservation of rent will, in either case, be good by way of contract, for the non-performance of which the lessor will be entitled to an action of covenant or debt-for the lessor might otherwise be left without a remedy. (c)

In other respects, the incidents and construction of licenses seem to correspond with what has already been said upon the subject of mining leases.

From the preceding observation and cases, it will appear very important, when any mining adventure is in contemplation, to ascertain whether the subject of speculation is entirely freed from previous grants and reservations. In cases of freehold leases, this subject should receive particular attention, although it has been seen that a sufficient entry may be completed by persons acting under the authority of the grantor. Allusion has al ready been made to this necessity for caution in treating of the relation of grantor and grantee. But prudence is equally required, and in all cases of grant, whether for freehold or personal interests, in adjusting the rights of different companies of adventurers. It very frequently happens, in mining districts, that a mine is worked under a license or a lease, containing the usual clauses of forfeiture and re-entry; and from the want of success the enterprize is virtually abandoned by the company. It is not uncommon for another lease or license to be granted to other persons, or even to the same persons, in trust for another company of speculators, a great part of whom may have been members of the old compamy. At any rate, the mining agent and the leading directors of the first company may continue in the same capacity and situation with respect to the new company. There may be little change in any respect, except in the ordinary event of taking a new (b) Ib. 47 a. 5 Co. Rep. 4, 56.

(a) Co. Litt. 47 a, 142 a, 144.

(c) Dalston v. Reeve, Ld. Raymond, 77.

interest in the mine, and in the subs itution of a few dormant proprietors. All acts of ownership may thus be referred to either company, if the interest under the former grant is not effectually extinguished.

It very frequently occurs, particularly in operations for obtaining the metallic ores, that a second or a subsequent adventure, is attended with great, and perhaps unexpected success. Questions of prior claim may slumber when the result is doubtful, but when the prospects of a mine begin to be realized, these questions may cause, not only as in Hanley v. Wood, great embarassment, but great danger of a successful interference. A long course of litigation may ensue, and the mine may either cease to be worked, or the profits may flow into the hands of those who may be eventually be declared to possess no title to them. It is no less the duty of the lessor as of the miner to ascertain, that any grant under which mining operations are conducted, is not liable, from negligence and inattention, to be in any manner prejudicially effected by claims of prior origin, which should have been legally destroyed by properly carrying out the conditions which control them. To the lessor, indeed it might be of no consequence whatever, if the terms of the subsequent grant were equally favourable to his interests as those of the first. But every lessor is morally, if not legally, bound to furnish voluntarily, in such cases a valid title to the property he professes to dispose of; and especially in those particular matters which the lessee may not have the means of investigating for himself. On the other hand, it will readily be admitted, that no circumstance can be more vexatious to a mining adventurer, than after a long course of expense, doubt, and anxiety, to be harrassed by prior claims, when at length the enterprise has been favoured with the fulfilment of his hopes.

In such cases, however, a Court of Equity will often refuse to lend its assistance in favour of persons urging former claims.

In one case of this description, a motion for a receiver on the part of the first lessees was refused. Lord Eldon, on that occasion observed, that in disturbing possession with reference to such a subject as mines, the Court would be taking an extremely strong step; especially if great expenditure had been applied without the interposition of other claimants, until it was excited by the profitable result of that expenditure, in which they would take no share. (a)

In case decided by Lord Rosslyn, (b) the plaintiff and defendant had been partners in a coal mine, under a lease, with a right of renewal. The renewal was obtained, and the mine worked, by the defendant alone, and the Bill was dissmissed, on the ground the plaintiff having waited till the concern appeared by the property embarked in it by the defendant to be profitable, keeping aloof while it was hazardous, had lost the equity he had by the renewal of his partner.

(a) Norway v. Rowe, 19 Ves. 156. (b) Senhouse v. Christian, cited 19 Ves. 157. 159.

Lord Eldon, in commenting upon this case, said it involved a doctrine with regard to mining concerns, upon which at least the Court would not refuse to act without great consideration-speculatlons of that nature were very hazardous. He had known a copper mine produce £20,000 a year, and the next week worth nothing, and that was as true of coal mines. There were persons who would stand by, see the expenditure incurred-if it turned out profitable, would set up their claim-if otherwise, would have nothing to do with it-and it deserved great consideration, whether the Court would interpose, even by Decree, much less on motion. (a)

These observations seem to apply to all mining adventurers.

It must be observed, that in both those cases, the plaintiffs had not the legal estate; and it may be concluded, that under such circumstances, a Court of Equity would refuse to interfere at all. It does not, however, appear to be settled, whether, after great expenditure incurred, without interruption or remonstrance, the Court would refuse to interfere against the owners of the legal estate who had not participated in the expenditure. It cannot, under any circumstances be considered to be a very equitable proceeding to encourage or acquiesce in an expenditure accompanied with great risk and delay, and afterwards to claim the whole benefit of the outlay. It would be a species of fraud. Every case will depend upon its own peculiar circumstances, but great injustice might result in many such cases, if a Court of Equity refused to interfere for the purpose of declaring such owners Trustees, as to the whole estate vested in them, for those adventurers who have carried on the mining operations.

A similar doctrine has even been maintained at law. An estate was sold at a remote period with a reservation of coal mines-they were reserved, because no one would give any thing for them. The application of machinery at length rendered them available, and the owner of the surface worked the coals after an enormous expense-and then the other party came forward. Upon the trial of the issue which seems to have been directed by the Court of Chancery, it was strongly laid down to the jury by Mr. Jus tice Buller, that as the proprietor had stood by during the whole of the expenditure, a grant should be inferred (b)

Lord Eldon, however, though admitting the great knowledge of Mr. J. Buller, with respect to mining concerns, established that the direction was wrong. (c) The circumstances of this case are not fully detailed. But the direction of the learned Judge was probably considered bad on the general ground of there being an insufficiency of time to warrant the presumption of a grant against the absolute owner of the inheritance. But the case is very different when a person is originally a trustee for himself and others claiming iuterests in the property. The legal estate vested in him (a) 19 Ves. 159. (3) Adair v. Shaftoe, cited 19 Ves. 156. (c) Ibid.