respond, in such case, with its exact definition. But in this, as in some other instances, the action of ejectment has been carried beyond its original limits. And it has been expressly decided, that such an action for the recovery of mines may be supported. (a)

It would seem, however, to be doubtful whether such an action could be brought to recover the possession of unopened mines, the title to which is distinct from that to the surface (b) This subject has been already partially discussed in considering the operation of a feoffment with livery of seisin. In a case of unopened mines, it was observed by Lord Hardwicke, that the question was not, whether actual entry was necessary, and he denied that without entry an action of ejectment could not be brought; for the common rule, obliging the defendant to confess lease, entry, and ouster, was, in law, sufficient to support that. (c)

It has been seen, that an ejectment cannot be brought by the lord of a manor for the mines situate in the lands of his copyhold tenant, in the absence of special custom; for though the former is entitled to the right of property, the latter is entitled to the right of possession. (d)

It has been decided, that such an action will not properly lie in respect of a license only to work mines. In the case of a license, an action of this kind was brought for the recovery of mines. It was held by the Court of King's Bench, that a proviso for re-entry was not less applicable to a license to work mines, than to an actual demise of the minerals, because under such license works might be effected, and a corporal possession had, which it might be competent for the grantor to reserve, but that such an instrument did not. confer a right sufficient to support the action of ejectment. (e)

But the grant of a license will support an action of trespass. (ƒ)

When the minerals are severed from their native bed, and become the subject of manipulation, they are mere personal chattels, like the trees which are severed from the freehold, and an action of trover will, therefore, be maintainable for their recovery in that condition. This form of action. has been often adopted to try the right to mines. (g)

But an action of trover cannot be maintained for the recovery of a certificate or voucher of a person being entitled to certain shares in a mining as sociation, if the plaintiff can show no legal title to the document. (h)

(a) Comyn v Kyneto, Cro. Jac. 150. De mineris carbonum in the county of Durham, Carth. 277. Wyld's case. Lawson v. Williams, cited Cro, Jac. 150. Cullen v. Rich, Bull. N, P. 102. Harebottle v. Placock, Cro. Jac. 21.

(b) Lewis v. Branthwaite, 2 Barn. and Ad. 437.

(c) Sayer v. Pierce, 1 Ves sen. 234.

(d) Sayer v. Pierce, 1 Ves. sen. 232. See chap. iii. sec. ii,

(e) Doe d. Hanley v. Wood, 2 Barn. and Ald, 739, 740.

(f) Bishop of Winchester v. Knight, 1 P. W. 407. Harker v. Birkbeck, 1 W. Black. 482.

3 Burr, 1556. Roberts v. Davey, 4 Barn, and Ad. 665,

(g) Player v. Roberts, W. Jones, 243. Cullen (Lord) v. Rich, Bull. N. P. 102. 2 Str. 1142. Rowe v. Brenton, 8 Barn and C. 737. Rowe v. Grenfell, R. and M. 396. (h) Dawson r, Rishworth, 1 Barn, and Ad, 574.

An action for use and occupation was held to be maintainable, in respect of a shaft or down, which had been let by a written agreement not under scal, if the defendant could be considered as having taken possession of the shaft; and he was also held liable, under those circumstances, to all the rent payable to the lessor till the determination of his tenancy, and whether he has continued to work the mine or not. But it was also said, that if he had merely caused holes to be dug, and had them filled up immediately, with a view to ascertain only what kind of a bargain he was about to make or had made, such acts would not amount to a taking of possession. (a)

Mines may also be taken possession of under the writ of elegit. A tenant in elegit, it has been seen, cannot open mines in lands of which he has taken possession. This restriction, it is presumed, would not apply to mines forming a separate inheritance; for such an exercise of power would not constitute waste. The point, however, is of little practical importance, as it can rarely, if ever, happen, notwithstanding the recent extension of the remedy, that such a temporary tenant would feel justified in proceeding to open mines.

At common law, an action of waste was maintainable to recover the place wasted, as well as damages for the injury done to the inheritance. This form of action, however, was attended with many difficulties and peculiarities, and gradually fell into disuse. It is now expressly abolished. (b) The mod. ern remedies for punishing the commission of waste are an action on the case in the nature of waste, an action of covenant, and an action of assumpsit. The two latter actions are almost confined to cases between landlord and tenant. The action of assumpsit is resorted to when the tenancy is by agreement, not under seal, or in cases of an implied covenant. The action of covenant arises upon express and legal covenants. But an action on the case is most generally applicable, in cases of waste, and is maintainable by the reversioner or remainder man for life or years, against a stranger or tenant, even if the latter be a tenant at will or by sufferance. (e) It may be brought against a tenant after the expiration of his term. (d)

If a lease contain an express covenant against waste, the lessor may still bring an action on the case against the tenant. (e)

An action of trespass is also maintainable in cases of waste. (ƒ)

In all these cases, damages may be recovered for the amount of injury sustained.

The remedies with respect to waste committed by ecclesiastical persons have already been discussed. (g)

(a) Jones v. Reynolds, 7 Carr, and P. 335, Per Coleridge, J.

(b) 3 and 4 Will. IV, c. 27, s. 36.

(c) 2 Wms. Saund. 252, n. 7. West v. Treude, Cro. Car. 187.

(d) Kinly side v. Thornton, Bl. Rep. 1111.

(g) See Chap. iv.

Sir Thomas Plumer.

(e) Ibid.

Sir W. Jones, 224. (f) West v. Treude, supra.

See also Herring v. Dean and Chapter of St. Paul, 3 Swanst, 510. Per
Bishop of Winchester v. Wolgar, cited ibid, 493.

A lessee covenanted to pay a certain proportion of the value of nine hundred Cwt. of the coals to be raised, unless prevented by unavoidable accident from working the pit. It was held, that if the accident were only of such a nature that the working of the pit was not physically impossible, but might have been effected, the defendant was liable, though the expense would be greater than the value of the coals to be raised. (a)

SECTION II.

EQUITABLE REMEDIES.

I. Courts of Equity have long ago adopted the practice of giving relief, in certain cases, by injunction to restrain persons from working mines. This remedy was always obtainable in cases of waste. It was extended to trespasses in mining cases, for the purpose of preventing irreparable mischief. (b) And it has even been carried so far as to restrain the taking of valuable stones, or nodules of clay, used for making cement under a patent, and which were found between high and low water mark, and below low water mark in the sea. (c)

In cases of a pressing nature, an injunction may be obtained on motion only, and before the answer of the defendant is put in. A contrary decision of Lord Hardwicke has been overruled. (d) The bill must, in such cases, be actually filed, and be supported by proper affidavits of title, and showing an actual or threatened interference.

But a distinction has always been observed with respect to the hasty disturbance of mines in active operation,-Mining operations may, in general, be prevented without much permanent injury even to the rightful owner, when no expenditure has been incurred, and when no extensive preparations have been made. But the nature of mining requires that the works should be kept in a constant state of repair and activity, and an injunction for causing such operations to be at once suspended, might produce an injury which might be of the most fatal consequences, both with respect to the costs of recommencing the suspended operations, and with respect to rival ownerships, by which the most favourable opportunity for disposing of the produce might be lost. As a general rule, therefore, the Court will not interfere by injunction, on motion, and before the cause is fully heard, in cases where there

(a) Morris v. Smith, 3 Doug. 279.

(b) Gibson v. Smith, Barn. Ch. Rep. 497. Player v. Roberts, W. Jones, 243, Anon. Amb. 209. Grey v. Duke of Northumberland, 13 Ves. 236. 17 Ves. 281. Mitchell v. Dors, 6 Ves. 147. Whitfield v. Bewit, 2 Pee. W. 240. Flamang's case, cited 7 Ves. 308. Norway v. Rowe, 19 Ves. 144. Field v. Beaumont, 1 Swans. 208. 3 Madd. 102.

(c) Earl Cowper v. Baker, 17 Ves, 128.

(d) Lowther v. Stamper, 3 Atk. 496.

has been either great expenditure or great delay. (a) Delay alone, without much expenditure, will of itself sufficiently justify the Court in withholding the summary application of a remedy which is required to be sought for at once, and in the acquisition of which unusual facilities are afforded by the Court. The only ground for so strong a measure is that a denial of it might be attended with irreparable mischief.-If persons are not prompt in proclaiming this mischief, the circumstance may be considered either to refute the extent of the injury, or their title to redress.

In one case, it was observed by Lord Eldon, that the grantees had actually worked the mines from 1808 till 1816, when the action of trespass was commenced-and that action was not brought to trial till 1817. It had been very correctly stated, that if the defendants had filed a bill to stay the the working of the mines, the Court must have refused an injunction to parties who had permitted these operations to proceed from 1808 til 1816, without interruption. To stop the working of a coal mine was a serious injury; and the expenditure incurred in the course of eight years would raise an equitable ground to prevent the hasty interference of the Court. The defendants would have been directed first to bring an action, and to return when the result of the trial had enabled the Court better to deal with the application. (b)

In another case, the time of delay amounted to two years—and the injunction was refused. (c)

When a special injunction is granted, it is for the purpose of immediately protecting the rights of those interested in the property. But whether issued in the first instance or not, it will be incumbent on the plaintiff, upon the hearing of the cause, to shew just grounds for the relief being granted or continued. The Court may then proceed to the final decision of the question, or, as in cases of disputed title, may direct the plaintiff to establish his right in a court of law.

If there be any unnecessary delay in the plaintiff in such a case, in trying an action at law, this delay will, in itself, form just grounds for dissolving an injunction. Thus, in the case of Grey v. the Duke of Northumberland, it was observed by Lord Eldon, after noticing that the action at law had miscarried by means of an error in pleading, in making the defendant a tenant in fee, instead of a tenant for life, that the merits of the question had not been tried from the fault of the plaintiff, which presented a strong case for dissolving the injunction; unless some means of procuring a speedy trial could be insured, he should dissolve it. (d)

Bir

(a) Anon, Amb. 209, Grey v. Duke of Northumberland, 13 Ves. 236, 17 Ves. 282. mingham Canal Comp. v. Lloyd, 18 Ves. 515. Field v. Beaumont, 1 Swans. 208. 3 Madd. 102, nom. Beaumont e. Field, 1 Barn. and Ald. 247.

(b) Field v. Beaumont, 1 Swans. 204.

(c) Birmingham Canal Comp. v. Lloyd, 18 Ves. 515.

(d) 17 Ves. 281.

It must always require a strong case on the part of the plaintiff to demand the interference of the Court by injunction in cases of trespass by the working of mines. The remedy cannot be administered on every occasion of injury. There must exist an urgent necessity for so strong a proceeding, otherwise the parties will be left to their remedies at law.

A motion was made before Lord Hardwicke, to restrain a lessee from working a coal pit irregularly and detrimentally to the lessor. The Chancellor refused the injunction, and observed that the Court grants injunction to stay the working of a colliery with great reluctance, from the great incon venience it occasions, and that it never will do it, but where there is a breach of an express covenant, or an uncontroverted mischief. (a)

In another case, it was observed by Lord Eldon, that the act of stopping a colliery about to be wrought might possibly, with reference to rival ownerships, be the means of making it absolutely unproductive twelve months afterwards, when it was to be wrought. The injunction was refused after the delay of two years. (b)

In another case, the same Judge observed, that inconceivable mischief might ensue from upholding the injunction too long, as the value of the opportunity of working a coal mine, if lost, might never be recovered, especially if it was contiguous to other mines belonging to the same person; and the interposition of the Court must be with a considerable pressure, that on the part of the plaintiff there should be no delay in going to trial..(c)

It has been doubted, whether after a verdict at law in an action of trespass, in favour of the plaintiff in equity, the Court will afterwards grant an injunction against future trespasses, when the plaintiff refused to produce at the trial documents which are necessary for a fair decision. (d)

II. It has been seen, that mining is considered as a species of trade. A Bill in Equity, therefore, may be brought for an account of the profits. (e) There are many instances in which the Court has decreed an account in cases of working mines, which it could not have decreed in cases of felling timber. (f)

An owner of a coal mine made a lease of it to a trustee, in trust for five other persons, in equal shares. The lessee entered and worked the mine,

(a) Clavering v. Clavering, 2 Pee. W. 388.

(b) Birmingham Canal Co. v. Lloyd, 18 Ves. 515,

(c) Grey v. Duke of Northumberland, 17 Ves. 281. (d) Field v. Beaumont, 1 Swans. 210, (e) Bishop of Winchester v. Knight, 1 Pee. W. 406. Whitfield v. Bewit, 2 P, W. 240. Story v. Lord Windsor, 2 Atk. 630. 1 Ch. Ca. 34. Clavering v. Westley, 3 P. W. 402, Pulteney v. Warren, 6 Ves. 89. Norway v, Rowe, 19 Ves. 144. Rowe v. Wood, 2 Jac, and W. 559.

(f) Jesus College v. Bloome, 3 Atk. 262. Amb. 54.