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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, (b) 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 ef fect. (d) And it appears to be the better opinion of the profession that even the payment of a considerable proportion will be equally inoperative. (e)

CHAPTER IV.

ON LEASES AND LICENSES.

I. Description of a mining lease.
II. Construction of leases.

III. License to work mines.

SECTION I.

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.

(b) Butcher v. Stapely, 1 Vern. 363, Atk. 1. Wills v. Stradling, 3 Ves. 378. Ves. 328. Kine v. Balfe, 2 Ball, and B. (c) Foxcraft v. Lister, 2 Vern. 456. Floyd v. Buckland, 2 Freem. 268. Mortimer v. Orchard, 2 Ves. jun. 243. Toole v. Medlicott, 1 Ball. and B. 393.

Pyke v. Williams, 2 Vern. 465. Lacon v. Mertins, 3 Bowers v. Cator, 4 Ves, 91. Gregory v. Mighell, 18 343. Morphett v. Jones, 1 Swanst. 172.

(d) Seagood v. Meale, Prec. Ch. 560. Lord Fingal v. Ross, 2 Eq. Ca. Abr. 46. pl. 12. Main v. Melbourn, 4 Ves. 720,

(e) Butcher v. Butcher, 9 Ves. 382. Clinan v. Cooke, 1 Scho, and Lef, 22. And see 1 Ca. and 135 1 Sug. 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 less 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 ascer

tain 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, in 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, and 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 appear 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. Such 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 uneonsciously 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 prosper. ous 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

law, the offenders may have found means to evade the consequences by a timely description or expenditure of property. The utmost that can be done in the preparation of a demise for avoiding any of these consequences, is to render the description as clear and intelligible as possible. No human language can control the operations of Nature. The rest must be left to be decided by the test of actual experience.

The direction, situation, nature, and quality of the vein or stratum, must be fairly proved by experiment, and in case of doubt, it will be for a jury to determine in whose favour the evidence preponderates.

After describing the subject matter, the instrument usually demises the full liberty to work the mines, and often in demises of metalliferous veins, to smelt the ores, and to erect washing and smelting apparatus, and to effect several other purposes particularly enumerated. Now it has been seen, before that the right to work mines is necessarily incident to the grant without any express authority for that purpose, and that this power 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 the law. (a) A grant or lease of mines, therefore, will be attended with all the rights and incidents which may be necessary for the full enjoyment of the thing granted, unless any of those rights and incidents are restrained by express stipulation; for modus et conventio semper vincunt legem. It is often a matter of great importance to ascertain what rights are necessarily incident to grants of this nature, and consequently how far any other rights should be expressly provided for, if the application of law is not sufficient to effectuate the intention of the parties. The only incidents which will be implied by law, will be those which may be necessary for giving the grantor the full benefit of his contract, and for enabling him to produce and carry away the mineral in a merchantable condition. He may enter, dig shafts, and pits, drive levels, make water gates, and aqueducts for draining the mines; he may erect all such engines, machinery, and buildings which may be absolutely required for obtaining the minerals, or for protecting them when they are in his possession; and he may, in short, make use of all such means as are usually and necessarily employed for the effectual and proper working of similar mines. Such rights must be incident to mining leases of every description. If the mineral, as coal or limestone for instance, be procured from the earth in such a state as to be immediately vendible without any additional process, no other incidents will be presumed, for no other are absolutely required; but if the mineral, like the ores of the different metals, be found in a crude and imperfect state, or mixed up with the soil or other ingredients of the earth, an additional right will be presumed for the benefit of the grantee or lessee, viz., to erect washing mills and other apparatus for cleaning and washing the mineral from impurities mixed with it, and for

(a) Earl of Cardigan v. Armitage, 4 Barn. and C. 197. See chap. ii.

enabling him to produce the mineral in a state fit for smelting, or for immediate use, when, for the first time, it becomes, properly speaking, an article of commerce. The mineral may thus be effectually secured from the freehold, separated from extraneous substances, and procured in a pure and marketable condition. The objects of a simple grant will, therefore, have been fully attained, and the mineral may be taken from off the lands. Such incidents, therefore, as these, need not be specified in a lease, though it is always preferable to leave no room for dispute. But all other rights which are not implied by law, such as the right to erect houses for workmen, furna ces and buildings for smelting and refining ores, for making use of any of the other materials on the lands not included in the grant, must be expressly mentioned; for, however important they may have been in the contemplation of the parties, they are not strictly necessary for the full operation of the grant or lease. In short, all rights which are not obviously implied by law, and which are intended to be conferred, should be clearly expressed on the face of the instrument.

It may be often very important to make special stipulations with respect to rights of way. A rights of way is incident to every grant, in cases where the grantor has the power to confer it. But it frequently happens that some required deviations from the proper course, some proposed alteration in the general condition of the property, or some particular mode or plan of shipment or delivery, demand a more particular arrangement. It may also here be observed that in leases of the surface, the grantor should, in all mining countries, make such reservation with respect to rights of way as may seem to be probably required for mining operations. If the minerals in the lands are reserved to the grantor, the tenant of the surface will then never have been in the possession of them. The exception will be construed as a grant, and a right of way will, of course, be presumed by law. But this right will not extend to minerals produced in the lands of others. Way leaves, in many mining districts, are of very great annual value; and when they are likely to be required, they should always be properly reserved in all farming leases. It will be the duty of every prudent lessee, before he is far embarked in a mining speculation, to secure to himself all the necessary rights of way which may be required to be obtained from other persons as well as from the grantor of the mines. Few circumstances can be more harrassing to the enterprising lessee, than to find that after years of patience and expenditure, and when his efforts have been finally crowned with success, he will still be required to make an unconscionable bargain for a right of way, without which his acquisition will be comparatively worthless, and which by foresight and attention, might have been effectually provided, for. Such cases, it is to be feared, are not uncommon. It will be often proper for the lessor to reserve rights of way through the mines demised for the purpose of working other mines. These are, in the coal districts of the

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