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shall be gotten save as aforesaid; and also that he the said Jeremy Marshall, his heirs and assigos, shall not only mend and repair such part of the fence or walls of him the said Robert Stansfield, his heirs or assigns, as shall be broken down or injured by the said Jeremy Marshall, his heirs or assigns, or his or their agents or workmen, but shall also from time to time, and at all times make good, inaintain, and secure that part of the fence or walling towards the banks of the said brook where the said rubbish is intended to be laid. In witness whereof the parties above named to the parts of these indenlures have interchangeably put their hands and seals the day and year first above expressed. Jeremy Marshall (L.S.)” And the said plaintiff further says that, after the said Jeremy Marshall had carried up the said sough, and made the two sough pils, as in the said last plea is inentioned, and long before the said time when, &c. to sit, A.D. 1776, it became and was no longer necessary to keep open, either of the said sough pits, for the purpose of examining the said sough, and thereupon the said sough pits were, afterwards and long before the said time when, &c. to wit, on the day and year last aforesaid, respectively filled and covered up to the surface of the ground by and with the consent and approbation of the person then seised of and in the said parcel of woody ground, and the said other lands heretofore of the said Jeremy Marshall with the appurtenances, and entitled to use and enjoy the said sough, together with the same ground, for the purpose in the said plea in that behalf inentioned, and have pot since been kept open, 10 wit, at Heaton atoresaid, and this the said plaintiff' is ready to verify, wherefore he prays judg. ment and the damages by him sustained on occasion of the counnitting the said trespasses in the introductory part of the said last plea mentioned to be adjudge ed to bim, Sc. To this the defendant demurred, and he plaintis joined in demurrer.
HOLROYD, for the defendant, in support of the de- 1806. murrer;'“ by the grant of the sough, a right to keep Hovason! the pit-in repair is granted as incident thereto; for versus
PIELT. where there is a power of making a thing, and the party has the use of it, he has a right to keep it in repair."
“ If a man bargains and sells all his trees, growing upon certain lands whereof he is seised, the bar. gainee has power given him, as incident to the grant to come upon the land and cut down and carry away the trees, at whatever time he pleases, and the coming upon the land is justifiable."* So,“ if a man grants to me to make a trench in his soil from such a fountain unto my house, so that I may put a pipe to convey the water to my place, (or house) in a conduit, if, after, my pipe be stopped, I may dig the ground to amend the pipe ; for it is incident to the grant.”of So what is said by Twisden, J. in Pomfret v, Roycroft,f is to the same point for quando aliquid conceditur, id conceditur sine quo res ipsa uti non potest.” “A farmer of the king of a capital inessuage makes a conduit to convey water to his house, through the land of a copyholder of the manor,and afterwards, the king grants the capital mese suage to A. with the appurlenances, and the copyhold was granted to another person ; adjudged that the far'mer may dig the ground to amend the pipe, because terra transit cum onere, Guy v. Brown. Here the grant to Jeremy Marshall is intended to have continyance, and to vest in hiin his heirs and assigns; and the interest which he has in it is not merely to inake the sough, but to continue it, and the provisions for keeping open the soughs for a certain time, as espressed in the deed, do not take frow himn the right of repair, for the cases pui as before ciled are ex
* 2 Rol. Abr. 567. + 9 E. 435. 6. Curia, Ventra
43 ; see also i Saund. 321, Mo. 644. pl. 19,
actly in point, that a person has a liberty to make a pipe, or ;lay a pipe, the right of repair is incident thereto.* The grant also extends to the coals under both the lands. Stansfield was seised of the woody ground, the close in question, through which the sough: was to be carried from the side of the hill to Jeremy Marshall's woody ground, the liberty, therefore, could only be granted in Stansfield's own ground and not in Jeremy Marshall's. The vein of coal in the other lands was a continuance of the vein of coal under Jeremy Marshall's woody ground. The situation of the parties is, therefore, to be considered, and the question is, whether, wlien Jeremy Marshall was seised of land, and the veins of coal underneath, the land being a part of the woody ground, and also of other ground, and being desirous of working the veins of coal under both lands applies to Stansfield, for liberty ta dig pits and to carry up bis sough, and such a grant is made, it should be restrained merely to the first making of the
• LAWRENCE, J. " The grant is to make a sough from the bottoin of the hill near a brook in a parcel of woody ground of Stansfield into a parcel of woody ground of Jeremy Marshall's, the two pieces of land only, are mentioned, the ground from which and into «which it is to be carried ; the other circumstances are stated only in the plea, and not in the grant."
HOLROYD. " Jy hen Stansfield grants the sough to go up to Jeremy Marshall's woody ground, he takes potice of that only which is on his own ground, the purpose is not mentioned in the grant.”
LAWRENCE, J. "If any other purpose made it necessary to drain the lands of Jeremy Alarshall according to your construction, he might do it, under thiş grant, by means of the songh." ;
HOLROYD. “The grant being general, no extrinsic circumstances are to be taken into consideration to restrain it ; or if they are, then these circumstances are to be considered, and we are to take it as fully as the purposes for which it was originally intended may require. “Grants will take a different operation, ac. cording to the estate of the person who grants."* . · Lord ELLENBOROUGH, C. J." How can we take iolo consideration other circumstances, there being no averment?".
HOLROYD. “ If not, we have the grant generally for all purposes; and if the other circumstances are to be taken into consideration, then we may enquire into the estates of the grantor and the grantee, the object for which it was granted, and the situation of the lands.”
Lord ELLENBOROUGH, C. J. “The grant to his heirs and assigns might be necessary, if the thing is to be done at all, for the grantee might die before it is completed." ;
HOLROYn. " In the case in Roll there was merely the grant of a pipe.”,
Lord ELLENBOROUGH, C. J. “ In the case in Sauna ders it is a grant of the use and occupation, which was plainly a continuing grant, and there he might Jose the thing, if he could not repair it, the grantor pot being bound to repair it.”
HOLROYD. “ There is nothing of continuance in the case in Roll or the points laid down in Shepherd, “ If a man grants to me to make use of his land to lay a pipe to convey water from a farın to my house,”
** Shep. I'ouch, 87, 88.
these are not words containing any terms of continua ance. Here it is not a grant to Jeremy Marshall, that he his heirs and assigns shall nake; but to Jeremy Marshall his heirs and assigns, that he his heirs and assigns shall do it ; a liberty in fee granted to the grantee ; and sough pits are necessary to the grant of the drain."
Wood, contrà, made two questions; first, “ Whether the right of repair, by making and opening sough pits, is incident to the grant of the liberty of making. the sough ;" and secondly, which he considered as the most material question,“ whether the grant can be extended to give a right to use and to continue the sough for taking other coals under other lands." As to the case in 2 Roll, 56, in the case of a grant of trees in another's lands, the grantee must have a right to enter lo cut them down, or else he could not possibly take the thing granted; but it is otherwise here when the sough is once made. In the case of the pipe cited for the defendant, there is evidently a continuing grant, which from the nature of the thing is to be perpetual. Here then is a grant to make one particular thing; there are onlytwo closes mentioned from and to which the sough is to be made, namely the piece of woody land of the plaintiff and that of the defendant ; the sough is, therefore, to be confined to that extent only, and it must be meant for the purpose of draining the coal pits in that woody ground and no further : and the sough pits which were first opened, have in fact been filled up long ago, by the consent of both parties; and they were by the express language of the grant, to be kept open so loug as they miglit be necessary for the examining of the sough and no longer. There is in the grant, an exo press mention of repair for a particular purpose, and speaking of repairs in one instance, the parties would have exlended it to others, by express terms, if it had