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It has frequently been decided, that these words only extend to permissive waste, and not to the destruction of the estate itself, and that they will not authorise any malicious or extravagant acts of ownership, as in cutting down ornamental trees, or in wantonly pulling down houses. (a) It had been decided in an old case at law, that the words, without impeachment of waste, gave the tenant the absolute property in the thing wasted, and courts of equity were for some time prevented by this case from interfering, as it would have been to declare that a man should not be allowed to make use of the property which the law allowed him. (b) But it has also been held at law, that a tenant for life, under these circumstances, was only exempt from an action of waste, the penalty of the statute of Gloucester, the recovery of treble value, and the place wasted. (c)

It seems, however, never to have been disputed either at law or in equity, that a tenant for life, without impeachment of waste, may open and dig mines at his own pleasure. (d)

The right will, of course, be accompanied with all the necessary incidents; but if it could be shown that the tenant was exercising his privilege in a wanton or malicious manner, a court of equity, it is presumed, would interfere to control him, in analogy to the principle adopted in cases of the destruction of timber and houses.

A long lease had been granted by a former Bishop of London, without impeachment of waste, and the lessee had articled with some brickmakers, that they might dig and carry away the soil of 20 acres, 6 feet deep, provided they did not dig above two acres in the year, and levelled those acres before they dug up others. A bill of injunction was brought by the then bishop, which alleged that this was carrying away the soil, part of the inher itance, and would in consequence turn the pasture field into a pit or pond; that the defendant, in digging all the soil for the bricks, was actually destroying the field. It was argued for the defendant that frequent experience showed that the digging of brick did not destroy the field, there being many fields about the town where bricks had been dug, and those fields used again for pasture; but that admitting it was waste, yet there being a power to commit waste, the lessee might do it, as well as open a new mine, and carry away the mineral without filling it up again. Lord Macclesfield said that the case was within the reason of Lord Barnard's case, (e) where as he

(a) Packington v. Packington, 3 Atk. 215. Abraham v. Bubb, 2 Freem. Rep. 53. Vane v. Lord Barnard, 2 Vern. 738, 1 Salk. 161. Bishop of London v. Web, 1 P. Wms. 527. Aston v. Aston, 1 Ves. 264. Piers v. Piers, 1 Ves. 521. Rolt v. Lord Somerville, 2 Ab. Eq. 759. Strathmore v. Bowes, 2 Bro. Rep. 88.

(b) Lewis Bowles' case, 11 Co. 79. See 1 Ves, 265. See Pyne v. Don, 1 Term Rep, 55, (c) 11 Rep. 82, C●. Litt, 220. 2 Inst. 146. 6 Rep. 63. Dyer, 184. Wood's Inst. 574.

(d) Plowd, 135, Hard, 96. Tracy v. Tracy, 11 Vern, 23. Bray v. Tracy, 1 W. Jones, 51. Aston v. Aston, 1 Ves, 264.

(e) Vane v. Lord Barnard, 2 Vern, 738, 1 Salk. 161.

was not permitted to destroy the castle to the prejudice of the remainder man, so neither should the lessee destroy the field against the bishop who had the reversion in fee, to the ruin of the inheritance of the church. The defendant was permitted to carry away the brick he had dug, but restrained from digging further. (a)

Every mining operation is pro-tanto a destruction of the property and particularly if the surface is interfered with, as happens in almost all cases. Such powers, therefore, must be fairly exercised. In the above case, the lessee was carrying away not the minerals only, but the soil itself.

A jointress, tenant for life, is in the same situation with respect to mines as an ordinary tenant for life, and may be subject to or without impeachment of waste. (b)

In a case where there was a covenant that a jointure should be of a certain yearly value, and it fell short, and the estate was not without impeachment of waste, the court refused to prohibit the jointress from committing waste so far as to make up the defect of the jointure. (c) But though a court of equity may refuse to lend its assistance in preventing waste in a case when there was such a strong claim for the privilege, yet an action at law might be brought against her, and it does not follow from the above decision, that the court would interfere in her favour to restrain the action.

An estate by the curtesy, and an estate in dower, are also estates for life, and the tenants are punishable for waste; (d) for they cannot, in their origin, be freed from the liability by the consent of parties, their estates being created by act of law. (e) But like other tenants for life, they may work open mines. (f)

The right of curtesy, extends over the whole lands, and the right to customary dower or freebench is often equally extensive. The right to dower, however, at common law, attaches only to one-third of the lands. Hence arises a difference in the term and nature of the enjoyment of lands held in dower. An interest which extends over the whole land will, of course, be accompanied with an immediate right of exclusive possession, because it does not interfere with the rights of others, but in other cases, the dower, the right to which only attaches on the death of the husband, must be assigned. Dower ought to be assigned within forty days from that event; and it is not till assignment that the widow acquires an actual estate in the land. It will be afterwards shown how that assignment should be made with reference to mines, and what is the effect of it.

There is little difference between the rights of a tenant for life, and a tenant for years. Both hold their estates equally of the grantor, the estate

(a) Bishop of London v. Web, 1 Peere W. 527.

(b) Basset v. Basset, Finch, 190. Aston v. Aston, 1 Ves. 264.

(c) Carew v. Carew, Abr. Eq. 221.

(e) See supra in this chapter.

(d) 2 Inst. 294. Stat. of Glou. 6 Ed. I, c. 5.

(f) Stoughton v, Leigh, 1 Taunt, 411.

of a tenant for life not being within the provisions of the statute of quia emptores against subinfeudation. Both tenants are entitled to reasonable estovers, and to take minerals, for the purposes of husbandry, and necessary repairs. (a) They are now equally punishable for waste. () A tenant for years may work mines already opened. (c) A clause of impeachment of waste, when inserted in a grant or demise for years, will have the same effect as when contained in a grant for life, and the lessee will be equally restrainable by a court of equity from committing wanton waste. (d) The mines in lands held for terms of years, are generally reserved to the owner of the inheritance.

A tenant at will has no power to commit any kind of waste, and an act of waste will determine his estate. (e) He is not bound to repair houses like a tenant for years, (ƒ) and therefore has no right to estovers.

A tenant at sufferance has no rightful estate at all, and there is no privity of estate between him and the owner of the land. His continuance of possession, therefore, alone is an act of trespass, much more, when accompanied with acts of ownership. (9)

Tenants by statute and elegit have too uncertain an interest to enable them to do more than take the ordinary profits of the estate. A mortgagee has, in law, an absolute estate in the lands mortgaged; and is consequently entitled to take immediate possession after default in payment, and to receive the rents and profits of the estate. And a court of equity will never interfere to prevent the mortgagee from exerting these rights. (h)

With respect to mines, the mortgagee in possession, it seems, will be clearly entitled to work old mines, in satisfaction of his demands, though it has been decided that he is not bound at the utmost to advance more money in a mining speculation than a prudent owner would do. For, as Lord Eldon justly said, if he were owner, he might speculate for himself as much as he pleased; the advantages, whatever they might be, would be his, and if it turned out unfortunate, he would bear the loss. But can a mortgagee be required to do that? Can he be required to risk his own fortune in speculation, and to incur hazard in an adventure which is ultimately to redound to the benefit of the mortgagor? (i)

There can, however, be no doubt that a mortgagee in possession will be accountable for wilful default; and if the nature of the property be such as

(a) Co. Litt. 41b.

(b) Mitchell v. Dors, 6 Ves. 147. See also Hanson v. Gardner, 7 Ves. 308.

(c) Co. Litt. 54 b.

(d) Abraham v. Bubb, 2 Freem. 63. Bishop of London v. Web, 1 P. Wms. 527. (e) Co. Litt. 57. a.

(f) Litt. S. 71. Lady Shrewsbury's case, 3 Rep. 13 b. 1 Show. 288.

(g) Co. Litt. 57 b. 270 b.

(h) Williams v. Medlicott, 6 Price, 496. See 2 Mer. 259.

(i) Rowe v. Wood, 1 Jac. and Walk. 555.

fairly to demand the expenditure and risk ofa prudent owner, he will be answerable for the neglect, for he is bound to make the most reasonable use of the estate, and to satisfy his own claims with due diligence, and the nature of the estate should have been contemplated at the time of mortgage, or of taking possession.

On the other hand, it may be concluded, that if a mortgagee in possession exceed the expenditure and risk demanded from a prudent owner, he will be equally accountable for the consequences. He will not be allowed the expences of an unnecessary or extravagant enterprise, or, it is presumed, of pursuing an enterprise in a useless or chimerical manner, but in both instances must speculate at his own hazard. (a)

But although a mortgagee in possession may be, in some cases, bound to prosecute the working of old mines and quarries, it is submitted that, in the absence of stipulation, he may be prevented from opening new mines. At law, his estate is absolute, and he is therefore subject to no action of waste or trespass; but it has been long decided in equity where the mort gagor is, until foreclosure or sale, considered to be the actual owner of the land, that a mortgagee shall not be permitted to waste the estate. (b)

If the security of a mortgagee prove defective, it has been held that he may cut down timber, and apply the produce to the satisfaction of the interest, and then of the principal, and a court of equity will not restrain him from so doing. (c) A similar principle, it may be inferred, will apply to the mines, viz. that a mortgagee will be permitted to open mines if there is a deficiency in his mortgage security, and then he must speculate at his own risk.

In a case just cited, (d) the mortgagee had opened a slate quarry. It was decided that he did it at his own hazard; but an injunction was not ap plied for, and therefore the question of right did not arise.

When mines form a distinct inheritance or possession, and are the subjects of limitation and conveyance, the right to work them would seem to be necessarily incident to the right of possession. The ordinary doctrines with respect to waste appear quite inapplicable to such cases. The mines are then the express subjects of conveyance, and this circumstance would supply the absence of express stipulation. Any person, therefore, in possession under such circumstances, would appear to have an unlimited right to work mines, both opened and unopened, at his own pleasure, if not otherwise prevented. The privilege to commit waste may of course be conferred by any expressions which may sufficiently show the intention of the parties.

(a) Hughes v. Williams, 12 Ves. 493.
(c) Witherington v. Bankes, Sel. Ca. Ch. 31.

(b) Hanson v. Derby, 2 Vern. 392.
(d) Hughes v. Williams, Supra.

CHAPTER III.

ON THE TRANSFER OF MINES.

I. On the Statute of Frauds.

II. Transfer by deed.

III. By will.

IV. By operation of law.

V. Transfers of shares in mines.

SECTION I.

ON THE STATUTE OF FRAUDS.

THERE can be no doubt that mines and minerals, whether forming a distinct possession or inheritance or not, are within the provisions of this statute. either case, they form part of the land itself.

In a case in Ireland, the Chief Justice of the Court of King's Bench observed, that the mining company were engaged in a partnership in interests in lands, tenements, and hereditaments. The nature of mining implied at least a right to open the ground, and keep it open, and such right to the land for a limited time and purpose as induced the court, in Crosby v. Wadswords, (a) to hold a contract for the sale of a growing crop to be within the statute. But the evidence given upon the trial, by the secretary of the company put that part of the case out of doubt. He stated, that the company had many mines at work in different parts of Ireland; that they had purchased some and rented others; and that they had erected steam engines, and smelting houses, and built workmen's houses. Now, the shares of this company were transferable, and what did a purchaser of one of them acquire, and what would he be entitled to on the dissolution of the company? Why, a share of those houses and interests in land which the company had acquired. (b)

The following statement of the construction of four sections of the Statute of Frauds as applicable to mines and minerals, seems to be all that is necessary on a branch of the law so familiar.

1. The first section then, requires the creation of any lease, estate, or interest in mines to be in writing, and to be signed by the parties creating it, or their agents thereunto lawfully authorised by writing.

It must particularly be observed, that the authority of an agent to create any lease or interest must be in writing from the principal. The authority may, of course, be either general or special, under a general power of

(a) Infra.

(b) Boyce v. Green, Batty, 608,

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