mon, from which considerable quantities of iron and coal had been extracted, and upon which every extensive iron works had been erected. A Bill was filed by one of the co-tenants against the others for a dissolution of partner ship. As the facts bearing upon this particular point were not sufficiently set out in the Bill, an affidavit in explanation of the nature of the business was ordered, in which it was stated, that the iron works at Cyfarthfa had been conducted as a trading concern-that the produce of the mines consisted of ironstone, coal, and limestone-and that at the works, large quantities of iron had been, and were manufactured, sometimes from the materials obtained from the leasehold land in question, and sometimes from pig iron and finers' metal purchased in London, Plymouth, and Bristol; that from the first establishment of the works, the proprietors had been in the habit of making very considerable purchases of iron ore from Lancashire, pig iron, and finers' metal, and of old wrought iron, naval and ordnance stores, for the purpose of manufacture at the works into various sorts of iron, and re-selling them in that manufactured state; that these purchases had been made by the successive firms with a view to profit, by manufacturing the articles purchased into bar and other iron for re-sale, and not merely for mixing the same with the iron produced from the works for improving the latter, or bringing it to a better market. Lord Eldon obseved, that it was difficult to establish that this was an interest in land, distinct from a partnership in trade-a mere interest in land, in which a partition could take place; for when persous, having purchased such an interest, manufacture and bring to market the produce of the land (1) as one common fund, to be sold for their common benefit, it might be contended that they have entered into an agreement, which gives to that interest the nature, and subjects it to the doctrines of a partnership in trade. It may be observed, that all these acts are equally applicable to strict owners of land who are not partners in a trade, and this idea must have suggested itself to the mind of Lord Eldon. For on a subsequent day he remarked, that a very difficult question might arise, whether, if the parties being originally tenants in common of a mine, agreed to become jointly interested in the manufacture of its produce for the purpose of sale, they continued mere tenants in common of the mine-still more, if not only carrying the produce of their own mine to market, they became purchasers of other property of a like nature, to be manufactured with their own. On a still subsequent day, Lord Eldon in delivering final judgment, said that after repeated consideration, he entertained no doubt that it was a trading concern, and that a partnership had subsisted. If the contents of the affidavit alluded to in the above case were correct, (1) It should be observed that the affidavit above referred to, by which it appears that they brought to market the manufactured produce of other lands, was not then before the Court. there could be no doubt that the concern was a trade, which subjected the parties to the operation of the bankrupt laws, and therefore to the consequences of partnership. The purchase of other materials for the sake of manufacturing and selling them, as distinct articles of commerce, was quite sufficient to divest them of the exclusive character of owners of land. It may be observed, that, in the above case, the parties were also interested in the lands in the same proportions, as in the trade itself. It may perhaps be presumed, that when the proportions differ, the intention of the parties to become partners will be more readily, though not necessarily implied. The point was shortly afterwards adverted to in another case before the same Chancellor. But it did not form part of the ground of decision in that case, as it was decided that a manager of the mine might be appointed by the Court, even if the parties were not actual partners, but only tenants in common of land. (a) In another case, six persons had taken a lease for years of mines, and also another lease of the surface lands, under which the mines were situated, and had worked the mines as a joint concern, divided into equal shares. One of them was appointed manager, and had become much indebted to it. He afterwards became bankrupt, and it appeared he had mortgaged his shares. A Bill was filed for the sale of the property; and that it might be declared, · that the shares of the bankrupt should be applied, in the first place, in repaying to the partnership the debt which he had incurred in the management of the concern. The true question, therefore, was whether the parties stood in the relation of partners to each other. The above case of Crawshay v. Maule, was very properly distinguished, in the argument, from the present case, in which no other articles appear to have been purchased; and it was contended, that if the rules which are applicable to common trading partnerships, were to be extended to part owners of mines, it would be difficult to foresee what consequences might follow, affecting interests of the greatest magnitude, and placing many individuals of the highest rank and fortune in situations which they never contemplated-and that the parties must be considered as tenants in common of the mines and lands. But Sir John Leach, M. R. observed, it was true, a mining concern differs in some particulars from a common partnership-but it had been repeatedly held to be in the nature of a trading concern. He said that in Crawshay v. Maule, Lord Eldon had expressed a doubt, whether, if persons previously entitled as tenants in common to mines, were to form a mining concern, the general princi ples of partnership would apply, and he (the Master of the Rolls) was not aware that the particular point had ever been decided; but the distinction there was, that the interest in the mines was expressly acquired for the purpose of a partnership, and the general principle was therefore to be applied. (b) (a) Jefferys v. Smith, 1 Jac. and W. 298. (b) Fereday v. Wightwick, 1 Russ. and M. 45. This decision seems to rest upon substantial reasons. The question is then one depending upon intention. And it may be concluded, that when persons acquire interests in lands apparently for the sole purpose of working the mines in them, they must be considered as entering into a commercial partnership. There does not appear to be any ground for distinction in such cases, if the parties have even acquired a permanent and absolute interest in the property. But it does not follow that, in every such case, such an inference can be drawn from the acts of the parties. An estate may be purchased or acquired for a definite period by a tenant in common, who may proceed forthwith to work the mines. But the mines may not have formed the only or even the primary inducements for effecting the purchase or acquisition. Much will always depend upon the particular facts. But it is submitted, as a general rule, that, in all such cases, there must not only be an express intention to work the mines, but this object must have been either solely contemplated by the parties, or of such paramount consequence as to effectually overbalance any other advantages anticipated from the estate. For the mines may form very important considerations in the arrangements of capitalists, and yet their existence need not preclude the motives which may proceed from the supposed general advantages of the investment. This principle, however, will regulate, by far, the greater proportion of mining cases, not specially provided for, in this country, where it is usual for adventurers, only to obtain limited interests in the mines themselves, without acquiring any rights to the general inheritance. It may, therefore, be safely asserted, that, in all such cases, where the obvious intention of the parties to acquire interests in the land for the sole purpose of carrying on mining speculations can be deduced from the nature of those interests, and the manner of their acquisition, the parties will be considered, from these circumstances alone, to have entered into a particular partnership, and to be liable to all its consequences. On the other hand, if it can be shown, that lands have been long in the possession of the different parties, or of those through whom they claim, or that they have been acquired without any intention to work the mines as an exclusive object, and if, after the mining operations have commenced, the parties have carefully avoided the assumption of the outward indicia of partnership, they must, it is conceived, be considered merely as the proprietors of land exercising the common acts of ownership in a manner adapted to the nature of their respective interests in it. If an interest in opened mines is enjoyed by persons as a distinct inheritance or possession, it would appear, that it will only be under peculiar circumstances, that the parties can be considered to be exempt from the obligations of partnership. The intention, in general, will be too strongly expressed. It is quite possible, however, for persons to have been originally entitled to distinct shares in such a property, without ever having received profits as a partner, or having personally interfered in the management of the concern. It may also frequently happen that mines in this condition. may devolve, by conveyance or operation of law, upon persons who have thus contracted no engagement of partnership. (a) A person may still continue to be entitled to the legal interest in his share, or to the legal or equitable reversion in it, and may cease, for a time, from becoming liable as a partner. Such experiments, however, are often dangerous, if it is desiraable not to incur the liability. In all cases, where it is intended that a trading partnership should be established, it is desirable that the parties should, by express agreement in writing, declare their intentions, and thus resolve all doubts upon the subject. This precaution seems not only to be reasonably required by the public, who may thus deal with them upon the faith, and with all the advantages, of a partnership; but it may often be indispensable for properly securing the interests of the parties themselves, by enabling them to prosecute the works in an efficient manner. The consequences of the above distinction are these:-If the works are carried on by persons as mere owners of land, concurring in a general sys tem of management for their common benefit, the shares of each person will only be liable for his individual engagements, and to the payment of debts contracted by himself or his authorized agent, without interfering with the shares of the other tenants in common. It is true, that, in cases of disagreement and mismanagement, a Court of Equity will appoint a general manager for the benefit of the whole. (b) But this remedy will very inadequately provide for the exigencies of such a case. In no other respect, will the parties be liable to the consequences of a partnership in trade. The shares cannot be sold for the liquidation of accounts as between the parties themselves; there cannot be enforced, as upon a dissolution, a general sale of the whole property; there will be no restraint upon the introduction of new partners, and there will, in short, be none of those general incidents of a commercial partnership, the exercise of which may prove of so much importance to the effectual and regular working of a mine. (a) See Jefferys v. Smith, 3 Russ. 158. CHAPTER VI. ON THE REMEDIES RELATING TO MINES AND MINERALS. I. Legal remedies. II. Equitable remedies. SECTION I. LEGAL REMEDIES. THE subject of remedies connected with mining property has been already incidentally discussed in various parts of the treatise. Much, therefore, which might otherwise have have been found under the present title, has been anticipated.-It will be proper, however, to lay before the reader a general view of the subject, which may include the discussion of those remedies which have not yet been particularly mentioned. It has been seen that a property may be acquired in mines, which will be quite independent of the property in the lands in which they are situate. In this condition, the minerals, of whatever character they may be, will, of course, still form parts of the land itself, and will constitute land in strictly legal acceptation. As such, mines become liable to the adminstration of all the usual remedies relating to the law of real property, except in those cases which, in consequence of the peculiarity of this species of property, may necessarily demand some modification of those remedies. It may be proper to remind the reader that the word mine is not here used in its strict sense, but as descriptive of the strata, or minerals themselves. An action of trespass may be maintained in respect of any improper interference with the enjoyment of mines, in all those cases in which that remedy is generally applicable. The same kind of action is usually resorted to for try ing the validity of a trial. (a) But an action of ejectment will also be maintainable for recovering possession of a mine. It might certainly be contended, when the mines form a distinct inheritance, that the action of ejectment is possessory; that the object of contention must, at least, be such as to be capable of actual possession from the delivery of the sheriff; that all the excavated parts would be of an incorporeal nature, or, at any rate, would become part of the general freehold, through which a mere right of way would be permissible; and that all the portions, which are severed, instantly lose the character of land, and become mere personal chattels. Such an action would certainly not seem to cor (a) Bourne v. Taylor, 10 East, 189. Roberts v. Davey, 4 B. and Ad, 665. |