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words. In Co. Litt. 55. b. it is laid down, that there may be an implied as well as
an express ouster. Wherever the lessor manifests his intention to resume the possession by any act which is wholly inconsistent with the title of the lessee, and which, unless he had at the time a right of re-entry, would make him a trespasser,
that the act shall amount to a re-entry. Co. Litt. 245. b. Viner's Abr. tit. Entry, ss. I. 3. 17. Winnington's case. (a) Now here a right of re-entry by Carlyon did exist; and these acts, unless referred to that right, are clearly acts of trespass; for he authorised the workings by Rowe; went upon the lands, pointed out the boundaries, wishing them at the same time success; and in fact resumed the possession of the lands. He participated in the profits with them, and worked himself, in conjunction with other adventurers, in another part of the lands. Unless, therefore, the presumption be made, that all this was done in pursuance of his right of re-entry, he has been a trespasser in almost every part of the lands; and the authorities shew that such presumption ought therefore to be made. Then can the mere declaration in the recital of the set to Rowe overcome this? Undoubtedly not; and besides, it being clear that that instrument is vaguely worded, it is not improbable that the parties might suppose that the manual delivery of the set of 1806 to Carlyon amounted to a surrender. Then as to the first point made by the plaintiff
, it is clear that this instrument does not amount to a lease. It is conceded, that the question is not to be determined by the mere wording of the instrument; but it is observable, first,
.(a) 2 Rep. 59.
Doe against Woon.
that its form is that of a licence. Then there is no consideration stated to be given for it, and nothing certain granted by it; for, at the time, it was not clear that any thing existed which could be granted. It is a licence to search, reserving no rent, except in the case that something was found. If, therefore, the lessor parted with his land on those terms, it would be a most unprofitable bargain. Then if this were a lease, Hanley alone would take, and not his co-adventurers, for they are not parties to it. But if a licence, they would take. No case can be cited of ejectment lying for an unopened mine; for how can the sheriff deliver possession of it? And as this is a grant of precise and distinct powers, no other powers can be given by inference. Then what are given ? only the liberty to search for minerals, and not the minerals themselves. In the granting part of the deed and the habendum, there is no doubt; and it is only where those parts of the deed are doubtful, that they can be enlarged by reference to the other parts of the deed.
In Norway v. Roe (a), Lord Eldon, speaking of this individual instrument, says, that it is nothing like a demise of mines. That is, therefore, an authority on this very point. The case of Chetham v. Williamson (6), strongly shews that a grant of this sort is not exclusive of the grantor. And the words " full right,” on which stress has been laid, only mean “ free and undisturbed,” but not " exclusive" right; Lord Mountjoy's case. (c) The cases of the boillourie of salt, prima vestura, &c. are all either cases of grants of the whole profits of the land, or the whole profits of the land for a certain time. But here mere
(6) 4 East, 469.
(a) 19 Ves. jun. 158.
Doe against Woon.
partial profits of the land are granted, for this is not a grant of all the minerals, but of the smelting minerals only; and there is a material distinction between partial profits and those which, though they are the partial profits for the whole year, are nevertheless the whole profits for a time. This instrument, therefore, does not amount to a lease, and as no interest in the land sufficient to maintain ejectment passed under it, the defendant is entitled to the judgment of the Court.
Cur. adv. vult.
ABBOTT C. J. now delivered the opinion of the Court.
This case, which came before the Court upon a special verdict, was lately argued at Serjeants' Inn, before my Brothers Bayley, Holroyd, and myself; my Brother Best declining to attend, by reason of his having been formerly engaged as counsel in the cause.
Upon the argument, three principal questions were made; first, as to the sufficiency of the stamp upon the letters of administration under which the lessor of the plaintiff claimed ; secondly, upon the legal effect and operation of the indenture of the first of March, 1806; viz. whether this indenture operated as a demise of the metals and minerals, so as to vest in the lessee a legal estate therein, during the term, upon the conditions mentioned in the deed, or only as a licence to work, and get the metals and minerals that might be found within the limits described; and, supposing the indenture to operate as an actual demise of the metals and minerals, then, thirdly, whether the acts done by the grantor, and under his authority, amount to, and are to be considered as a re-entry under the proviso, so as put an end to the term of years created by the deed.
DOE against WOOD.
Upon the question relating to the sufficiency of the stamp, our opinion was given at the time of the argument, and it is not necessary to say more on that subject. Upon the second question, it was argued, on the part of the lessor of the plaintiff, that the indenture of the first of March, 1806, operated as an actual demise of the metals and minerals, and conveyed the legal estate in them during the term, as a chattel real. This proposition is necessary to the maintenance of the present action, because if the deed operated as a licence only, then, admitting that a party claiming under such a deed, and who should have actually opened and worked, and should be in the actual possession of a mine, might, if ousted of such possession, maintain an ejectment, yet such a right, supposing its existence, (and upon the question of its existence it is not necessary for us to decide,) would not sustain the present action, inasmuch as the defendant was not shewn to be in possession of any mine worked under the deed in question, but only of other mines and parts of the metals and minerals lying at a distance from the workings of the grantee; and which workings had even been long abandoned by him. It is our opinion, that this deed operates as a licence only.
The doubt has arisen from the inaccuracy of some of its expressions, which, seem to import that the grantor supposed himself to have done that by the granting part of the deed, which it is insisted on by the defendant, the words of the granting part do not warrant. But this instrument, though inaccurate, is a regular formal deed, containing all the formal or orderly parts of a deed of conveyance, enumerated by Lord Coke, (in
DOE against WOOD.
Co. Litt. 6. a.) except the clause of warranty; viz. the parties between whom it is made of the one part and of the other part; a full description of the premises it purports to grant, with the exceptions or reservations thereout; the habendum; the reddendum; the covenants and proviso for re-entry; the incujus rei testimonium, and the witnesses. One of the proper offices of the premises or granting part of a deed, as is there stated by Lord Coke, is, “to comprehend the certainty of the tenements” to be conveyed. This indenture, in its granting part, does not purport to demise the land, or the metals or minerals therein comprised. The usual technical words of demising such matters are well known and usually adopted in a formal deed, where the intent is to demise the land, or metals or minerals; but the purport of the granting part of this indenture, is to grant, for the term therein mentioned, a liberty, licence, power, and authority, to dig, work, mine, and search for metals and minerals, in and throughout the lands therein described, and to dispose of the ore, metals, and minerals only, that should within that term be there found, to the use of the grantee, his partners, &c.; and it gives also further powers for the more effectual exercise of the main liberty granted. Instead, therefore, of parting with, or granting, or demising all the several ores, metals, or minerals, that were then existing within the land, its words import a grant of such parts thereof only as should, upon the licence and power given to search and get, be found within the described limits, which is nothing more than the grant of a licence to search and get (irrevocable, indeed, on account of its carrying an interest,) with a grant of such of the ore only as should be found and got,