Testatum.

of the other part, WITNESSETH, that in consideration of the several rents and royalties hereby reserved, and of the co

made the subjects of ejectment and conveyance by livery (Comyn v. Kyneto, Cro. Jac. 150.; Co. Litt. 6 a., Noy. 121.; 4 Mod. 143.'; Salk. 255. Adam's Eject. 30., id. 3. ; Barnes v. Mawson, 1 M. & S. 77. ; Earl of Cardigan v. Armitage, 2 B. & C. 197.; Prest. Touchst. 96.; Seaman v. Vawdry, 16 Ves. 390.; Houghton v. Leigh, 1-Tau. 401.; but see 4 East, 476.), as land includes, in general, every thing beneath its surface; the owner in fee of land is almost invariably the owner of the mines lying beneath (Co. Litt. 4 a.), with the exception of gold and silver mines, which belong, by prerogative, to the Crown, (Plowd. 336.; 2 Inst. 577.). By the statute 1 W. & M. c. 30. (see 5 id. c. 6.), it is enacted, that no mine of copper, tin, iron, or lead shall be adjudged a royal mine, although gold or silver may be extracted out of the same, and the owners of such mines are empowered to work them. The statute 5 W. & M. c. 6., however provides, that the crown may have the ore of such mines, paying for the same. This has been again altered as to lead mines, by the stat. 55 Geo. 3. c. 134. (see 4 Bac. Abr. 163. 201. 213.; Lyddal v. Weston, 2 Atk. 19.; 16 Ves. 392.; 1 Rep. 466. 52 a.); but this right of the owner of the fee is liable to be rebutted by evidence that he has not enjoyed them, and that they have been gotten by other persons (see Rowe v. Grenfell, Ry. & Moo. 396.; Rowe v. Brenton, 8 Barn. & C. 737.). There may be an ownership in fee simple, or for any less estate, distinct from the ownership of the soil (see Harker v. Birckbeck, 1 Wm. Blacks. 482.; Houghton v. Leigh, antè). A tenant for life may work mines already opened as by a preceding tenant in tail (5 Coke's R. 12. ; 2 Wms. 388, 389.; Sal. Ch. Ca. 79.), and may sink fresh shafts or pits for continuing the working thereof (3 Tho. Co. Litt. 237.; 2 P. W. 388.); but he cannot open mines de novo, without being guilty of waste, even though the conveyance expressly passed all mines, waters, trees, and other emoluments (2 Wms. 242.). But, where an estate for life or years is made without impeachment for waste, this is a complete authority to open new mines (1 Sal. 161.; 1 Eq. Ca. Ab. 399.). See Flintoff, on the Law of Real Property, vol. i. p. 45*.

A COLLIERY is a compound subject, and includes both a coal mine and land used in working the same. And notwithstanding mines are real estate, they are for many purposes in a court of equity considered as a trading concern. As a colliery is a trade, an account may be taken of the profits in a court of equity (Story v. Lord Windsor, 2 Atk. 630.; S. C. 1 Ch. Ca. 34.; Wren v. Curton, 8 Ves. J. 502.; Jeffereys v. Smith, 1 Jac. & Walk. 298.; Williams v. Attenborough, Turn. & Russ. 70.); but the decree for an account will not be made without showing possession. In Parrott v. Palmer, 3 Mylne & K. 632., LORD BROUGHAM C. said, that it may be laid down generally that, unless in the case of mines, the rule is no injunction, no account. In Jesus College v. Bloome (3 Atk. 262.), where an account was prayed of timber cut by a tenant before the assignment of his lease, and the term being gone, no injunction could be had, the Court held that no account lay; and so it was

-

venants and agreements hereinafter contained, on the part of the said C. D., E. F., and G. H., their executors, administra

decided, though the Court said, obiter, that mines formed an excepted case, being in the nature of a trade or business. In Whitfield v. Bewit (2 P. Wms. 240.), where an account of timber cut, and an injunction against opening mines, were prayed, the Court appears to have given the account only as incident to a discovery. Indeed, in Sayer v. Pierce (1 Ves. sen. 232.), which was a case of mines, but where no possession had been shown by the plaintiff, LORD HARDWICKE would only entertain the suit in respect of the confusion of boundaries, and he retained the cause for a year, with liberty to bring ejectment. In Garth v. Cotton (1 Ves. sen. 524., and more fully in 1 Dick. 185.), LORD HARDWICKE takes a somewhat different view of his own judgment, in Jesus College v. Bloome, from that which the report of the case gives; but he does not overthrow its doctrine, for he takes the broad distinction, that in the one case there was a legal remedy, and in the other no remedy at all. But it is certain, that if Lee v. Alston be law, the distinction formerly taken, particularly in Jesus College v. Bloome, is shaken, if not overthrown, and a principle established, that wherever timber is cut on the estate by one not having right, account will lie ; because, to use LORD THURLOW's expression, the wrong-doer may be treated as a bailiff. And yet LORD THURLOW assumes throughout that there is all the while a remedy at law. It must, however, greatly detract from the weight of a doctrine so decidedly opposed to the distinct and sensible opinion of LORD HARDWICKE, in Jesus College v. Bloome, that neither in the two reports of LORD THURLOW'S judgment, when the cause was last before the court (3 Bro. C. C. 38. and 1 Ves. jun. 78.), nor in the year 1779 (1 Bro. C. C. 194.), when it was formerly heard, is there the least mention made of that celebrated case, nor, indeed, of Sayer v. Pierce. On the same ground the rule that a purchaser shall have possession as from the quarter day preceding the sale, does not apply to a colliery, but the proper period is the month or week in which the purchase takes place according to the usual course of taking the account (Wren v. Kirton, 8 Ves. 502.). Neither do the rules regulating the practice of opening biddings upon a sale of landed estate apply when a colliery is the subject of sale (Williams v. Attenborough, Turn. & K. 70.).

By the Larceny Act, 7 & 8 Geo. 4. c. 29. 37. (this statute repealed the 25 Geo. 2. c. 10. and 9 Geo. 3. c. 29.) stealing, or severing with intent to steal, the ore of any metal, or lapis calaminaris, manganese, mundick, wad black, cawke, blacklead, coal, cannel-coal, from any mine, bed, or vein thereof, are declared felony, punishable as in case of simple larceny. The fifth section of the same statute makes malicious injuries, as firing coal or cannel-coal mines, punishable capitally; the sixth section makes the maliciously drowning any mine, or obstructing any air way, water way, drain, pit, level, or shaft belonging thereto, to be felony, punishable with transportation for seven years, or imprisonment not exceeding two years, with public or private whipping; the seventh section makes the maliciously destroying, or damaging with such intent,

tors, and assigns, to be respectively paid, observed, and performed, HE, the said A. B., HATH demised and leased, and by these

any engine or other machines belonging to any mine, or any erections attached thereto, or any bridge, waggon, way, or truck connected with the same, an act of felony, punishable in like manner as in the last case; and the eighth section makes the last act punishable capitally, if committed feloniously by persons riotously and tumultuously assembled. By another statute (7 & 8 Geo. 4. c. 31. s. 2.) the injury from this last-mentioned act must be compensated by the hundred.

In regard to customary lands and lands held by copy of court roll, the freehold is in the lord of the manor in respect of the quality of the tenure (see Bract. 1. iv. tract 1. c. 28. s. 5.), on which account trustees to support contingent remainders therein are not essential, the lord's estate being sufficient (10 Ves. 282.; 16 East, 406.). MINES are part of the demesnes of a manor, and not distinct from the right to the soil (2 Term Rep. 705.). The customary tenant or copyholder cannot open new mines without consent of the lord, nor again can the iord open new mines under the lands occupied by such tenant without like permission, unless by special custom (Whitechurch v. Holworthy, 19Ves. 214.; S. C. 4 M. & S. 340.; Bishop of Winchester v. Knight, 1 P. Wms. 408.; Lord Rutland v. Greene, 1Keble, 557.; Bourne v. Taylor, 10 East, 189.). And the copyholder has such possession of the mines under his land as to be able to maintain an action of trespass against any one taking coals from the same, though no injury be done to the surface (Lewis v. Branthwaite, 2 B. & Ad. 437.; Gilb. Ten. 327.). A point was attempted to be established in Parrott v. Palmer, that the lands in question were not copyhold, but customary freehold, and that the law which gave the lord the right to the soil, and to whatever lay below the surface of the ground in copyholds, did not extend to customary freeholds, to support which the following cases were relied upon: Bishop of Winchester v. Knight, 1 P. Wms. 408.; Doe v. Danvers, 7 East, 299.; Bourne v. Taylor, 10 East, 189.; Curtis v. Daniel, id. 275.; Whitechurch v. Holworthy, 19 Ves. 214., S. C. 4 M. & S. 340. LORD BROUGHAM C. said he collected from the whole of the cases, that although as to timber there existed considerable discrepancy, yet the sound rule is to make account the incident and not the principal, where there is ia remedy at law (see Baily v. Taylor, 1 Russ. & Myl. 73.) ; but that mines are to be otherwise considered, and that as to them the party may have an account, even in cases where no injunction would lie (Parrott v. Palmer, antè).

With respect to mines already opened within the manor, as no custom can be maintained, the lord cannot, in working them, be authorised by any custom to commit acts unreasonably oppressive to the occupier of the lands in which they lie (Wilkes v. Broadbent, 1 Wils. 64.). The right of the lord to the minerals under the soil of the copyholder resembles his right to the trees; that is, the property may be in him, but he cannot enter and take the same without consent; and the Court will restrain him by injunction from proceeding both to cut trees for his own use or to open a mine upon the copyhold land (Gray v. Duke of Northumberland, 13 Ves. 235 a., S. C. 17 Ves. 211., S. P. at law;

presents DOTH demise and lease, unto the said C. D., E. F., and G. H., their executors, administrators, and assigns, ALL Parcels. and all manner of mines, beds, lymphs, and veins of coal, ironstone, and other minerals, and the ores thereof respectively, which have been, now are, or hereafter, during the continuance of this demise, shall or may be discovered or opened in, upon, or under all together with full and free liberty, power, Powers to and authority (a), for the said C. D., E. F., G.H., their executors, administrators, and assigns, and their agents, servants, miners, and workmen, from time to time, and at all times during the continuance of the said term hereby granted, at their costs and charges, within the limits of the said beds, lymphs, or veins of coal, ironstone, and other minerals hereby demised,

.

search for and work.

to dig, bore, delve, sink, search for, and raise, get, work, To sink shafts, and win the said mines and veins, and follow and pursue the &c. same, and for that purpose, within the limits aforesaid, to sink such and so many shafts, and to drive such and so many headways, soughs, levels, and drains, and to erect and set up To crect enso many fire and other engines, whimsies, cranks, and other fines, cottages, machines, furnaces, smelting-houses, rolling-mills, houses and stables, cottages and dwellings, for the use and residence of the workmen and others to be employed in the works,

&c.

Bourne v. Taylor, 10 East, 205.; Whitechurch v. Holworthy, 19 Ves. 212., S. C. 4 M. & S. 340.). And the Court will similarly interfere in a case of trespass as well as waste, as where one party works from coal in his own ground into that of his neighbour (Mitchel v. Dors, 6 Ves. 147.; Flamang's case, cited in Hanson v. Gardener, 7 Ves. 308.; Courthope v. Mapplesden, 10 Ves. 290.); but only in cases where the trespass was like waste, and there was no dispute about the right (Smith v. Collyer, 8 Ves. 90., and see 3 Mer. 173.; Norway v. Rowe, 29 Ves. 155.). In Smith v. Collyer the LORD CHANCELLOR expressed his surprise that the jurisdiction by injunction was taken so freely in waste and not in trespass, for there was a writ at common law, after action, to restrain waste; but a trespass, after one action, might be repeated; and see Fitz. Nat. Brev. 139., tit. Writ of Estrepement. But the Court makes a great distinction where a mine has been actually opened and put in a working state, in which case it would be very unwilling to interpose (1 Swanst. 208.; but see 13 Ves. 237.; Player v. Roberts, Sir W. Jones, 243.). Where, however, the soil is in the lord, as by the copyhold being at an end, the ownership of the soil carries every thing under it, and a grant thereof will pass the minerals also (Townley v. Gibson, 2 T. R. 705. Id. 236.).

(a) A licence to work mines confers no estate in them (19 Ves. 158.).

Smelting.

Draining.

To use coal free.

surface lands.

and to take down and again put up the same, and to make use of all such other ways and means as shall from time to time be found necessary or expedient for raising, getting, working, and winning the said coal, iron, ironstone, and other minerals, and the ores thereof respectively, out of the said mines and veins; and for smelting, rolling, converting, and manufacturing the same and the produce thereof; and for draining, raising, and discharging the water and foul air therefrom in the best manner, or as most usually is practised in such and the like undertakings in the neighbourhood; and to use and apply sufficient coal from the amount so to be obtained as aforesaid, for effectually working such engines or machines, free from the royalty hereinafter reserved; and to To deposit upon place, stack up, and deposit, such coal, ironstone, and other minerals, and the ores thereof respectively when raised, and the iron or other product thereof respectively, and the earth, rubbish, or soil, to be raised out of the said pits, shafts, and mines, upon any convenient part or parts of the said land; To carry away. and to have, take, and carry away the same respectively, at his and their free will and pleasure (a); and to convert for and to his and their own proper use and benefit all such coal, iron, ironstone, and other minerals, and the ores thereof respectively, as shall or may be gotten or raised from the said pits, shafts, mines and veins: AND ALSO, within the limits aforesaid, to make such and so many wagonroads or railways, tramroads or bridges, to and from, and cuts, pools, or canals, in and over, the said lands as occasion shall require, and to do and perform all other reasonable acts or things necessary or proper for the carrying away coals, iron, ironstone, ores, and other produce of the said pits or mines, or any other coals, ores, or minerals, any timber-materials, utensils, earth, rubbish, matters, and things, to be used in or about or proceed from the working and converting of the same respectively, or to be used for any of the purposes hereby authorised, as shall from time to time be necessary: AND ALSO full and free liberty of ingress, egress, and regress into, out of, and from the said lands,

To make roads, railways, &c.

Liberty of

ingress, &c. out and from the lands.

(a) See Simpson v. Selwright, 2 Lut. 1247.