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BY ROBERT FORSTER MAC SWINNEY, M.A., BAREI9TER-AT-LAW. LONDON : W. MAXWELL & SON, 8, BELL YARD, TEMPLE BAR, 3fafo Sjoohsrlltrs ant> publishers. MEREDITH, RAY, & LITTLER, MANCHESTER ; HODGES, FIGGIS, & CO., AND E. PONSONBY, DUBLIN; C. F. MAXWELL, MELBOURNE AND SYDNEY. 1884, | ions . BRADBURY, ACHItW. i 00., .K.STIM, Wll.TkflU A R» O v^ TO THE KIGIIT HONOURABLE THE LORD JUSTICE FEY, THIS HOOK IS, BY PERMISSION, Jllost Ursprrtfiillij Drtnrateto. 1 U o o PREFACE. The author has endeavoured in this book to state the Law of Mines as it prevails in England. The few Irish mining decisions, and the Acts of Parliament dealing with mines in Ireland, have also been included. The Scotch and the Colonial Reports (as might be expected) abound with decisions upon mining law; and there are some Scotch and many Colonial mining Statutes. Such of the Scotch decisions as have come before the House of Lords have been included. Bu1 it would have been impossible, with the Bpace at the author's disposal, to have entered with any detail into the Scotch or the Colonial law. He has there- for,' contented himself with short references to about forty of the other principal Scotch decisions in recent years, and to the principal Acts of Parliament dealing with mines in Scotland ; and with short references to such of the Colonial decisions as have come before the Privy Council. The cases have been brought down to the date of publication. But some of them are now reported more face. fully or at further stages ; with the results noticed in the 'a, The author is indebted to his friend Mr. Leonard a for the collection of contempo- raneous - in the Table of Cases, a '■ much Labour. He has .'- to thank th _ tleman for valuable help in the preparation of the Index, and in th' the book through the press K. F. y g s TABLE OF CONTENTS. r haiti: r i. MEANT MINERAL, BOIL, AND KINDRED W'"KL>.-> AND BXPR1 PA OP. • T 1—11 en mine and vein or seam 1 — 3 lie 1 defii team 1 mine and rein or team di l 2 B, J' ' ■ - ■ fry 3 — 9 defr .arry 3 4 of mine ........ 3 mine an.: * • rally conclusive 4 illuf- - : ° act 5 • Act 5—9 9 " (■y) / 9—11 contain iug chamber — mine rein, seam, and quarry H exec: 1 I 1Q *ECT. 2— MlM.KAI IX 13 ■) J 11 — 15 - of mineral 1 1 extensive ;»r//' ' • not ' .son 13 U "mines and minerals " in I Rosse r. Wainman -.lethwaite c. Winter ° (0) | * ** °~ language of instrument circumstances of severance ° 11 r. Roper Brown v. Chadwick A^O. v. Mylch eert 1( TABLE OF CONTENTS. (0) /■'■ ! primd facie sense— continued. Tucker v. Linger 17 m or usage 17 (7) Containing chamber 18 (5) Particular kinds of minerals 18,19 metal IS aes 13 Lis 19 " produce " of mines 19 5» P. 3. ^ ; EU H3E, Si BSOIX, Land. Clors, Tenement. BebeditamenT, Bon 19—22 (a) Surface IV 20 (0) Subsoil (7) A ■'. C ■ ! • " '. Hereditament 20,21 (.5) Soil 21 6oil 21 . . . 2 1 Pretty v. Solly Bo clench v. Wakefield 22 SB 1. I. — OPEB AMD New MINES and QUARRIES □ mine or quarry — generally 23 no actual openi -wrongful openings seam ot shuft 24 dormanl mine or quarry ......... 26 3BC I. 5.— COLLIBRT CHAPTBB II. PROPER! V AND POSSESSION. Sect. 1.-- Props i b u.i.y 26—28 surface owner in general pn entitled b Mug beneath 26 presumption rebuttable 27 Land 1 1 ' ' 27 Sect. 2.— -Propertx Roadways and Waterways — Rivers— Sea and Beashobb (o) Roadways generally 28,29 roadway — generally Gen, Highways Act 29 l! ;hw. (Turnpike) Acts Bighw. and Loc. Am. Act, 1878 29 (/3) Railways and Waterworks (7) Rivers 30 I 8 i Sea and Seashore 31 .Sect. 3.— Pbopebtx \m> Possession— Reversions and Remainders - i.iki: Tenancies \nd Leaseholds lands generally— property and possession 32 mines or quan -session 33 minerals — property and possession 33 taining chamber- property and possession 33 TABLE OF CONTENTS. XI Sect. 4.— Property and Possession-— Manorial or Enfranchised ou Inclosed Lands 34—37 (o) Copyhold* 34 > 35 copyholds— property and possession 34 containing chamber— property and possession 35 (0) Customary Freeholds 35 property and possession 3; > (7) Enfranchisement* 3G (5) Wastes 36 37 <«) Jncl>sures tnclosnres Inclosnre Acts 3 ' Sect. 5. Propebty — Pabticulab Localities 37—40 (a) St. Briavels— Derbyshire — Isle of Man 37,38 42 CHAPTER III. WORKINGS AND DSBB FOUNDED ON PROPERTY OR POSSESSION— ORDINARY rENANCIES IN FEE OR FOR LIFE OR YEARS OR AT WILL— REVERSIONS AND REMAINDERS— TRUSTEES. M , i- 1.— Wobejngs Tenant in Fee 43—46 (a) Tenant in Fee Simple tenant in fee simple 44 infant 44 lunatic (0) Tenant in Tail 45 ' i6 tenant in tail infant 46 lunatic • • sect. 2.— Wobkinos— Tenant for Life or Years or at Will . . 46—64 a. Rights as respects open mines and quarries 46— ol (a) Generally • • • ■ ■ ~ 1 :d presumptive right to work open mines and quarries . 4b Irish leascB onus of proof when fact of heing open disputed .... 47 proceeds of sales 47 rents 4g dowresa presumption rebuttable tenant at will Q8) Residuary Gift in Will iq general disability under residuary gift 49 Ml TABLE OF CONTENTS. PAOK (£) Residuary Gift in Will— continued. contrary intention . 49 Wightwick o. Lord 50 b. Rights as respect* New Mines or Quarries — Lrgui Watte . . . 61 — 56 (a) Gnirralhj ............ 51 — 55 limited rights as respects new mines or quarries ... 51 genera] disability in other respects — legal waste .... 51 tenant by curtesy — dowress — jointress 52 tenant for renewable lives or years 52 contrary intention 53 ameliorating waste 64 intermediate termor 55 ($) " Without impeachment of waste " 55,56 " without impeachment of waste " 55 lunatic 66 c. TAenfor Expenditure 56 d. Improper Workings — Legal Waste — Remedies. . .... 56 — 62 (a) Damages — Account 56 — 58 remedies— dami ant mini: - of trade ...... ."'7 preserve contingent remainder? 57 tenant for life in remainder 57 measure of damages 58 (/3) Mode of dealing with proceeds . ■ ■ • . . . no person in esse entitled to inheritance . . ... - d in rs.tr entitled to inheritance illustrations .V.'. 60 owner of inheritance a wrong-doer 60 consequent mode of dealing •'■»» owner of inheritance adopting working 61 (>) Injunc 61, 62 injunction 61 reluctance to grant interlocutory injunction 61,62 s. Improper Workings — Legal Waste — Loss of Remedies . . . 62,63 Siat. of Limitations delay . 63 acquiescence 63 bar only in respect of severed chattels 63 /. Equitable Waste C3. 64 equitable waste 63 remedies 64 Stat, of Limitations 64 Sect. 3. Wobkinos — Revebsionbb ob Remainderman . . . . 64,66 reversioner or remainderman ........ 64 mode of dealing with proceeds 65 acquiescence ........... 65 Irish leases 65 Sect. i. — Wobbjngs — Tbustebb 65, 66 trustees- Conv. Act. 1881 65 express powers 66 TABLE OF CONTENTS. Xlll PAGE Sect. 5.— User 67— 71 a. Ordinary Tenancies in Fee 67 — G9 containing chamber — generally 67 grant in fee excepting mines 67 limits of right 68 other modes of severance ......... 68 grant or exception of minerals 68 Proud v. Bates 69 Hamilton r. Graham 69 b. Life Tenancies and Lea sell olds — Reversions and Remainders . . 70,71 containing chamber — generally . 70 lease excepting surface 70, 71 CHAPTER IV. WORKINGS AND USER FOUNDED ON PROPERTY AND POSSESSION— MANORIAL AND CHURCH LANDS— LANDS SUBJECT TO MORTGAGE OR CONTRACT— LANDS OF RAILWAY OR HARBOUR COMPANIES. Sect. 1.— Workings— Copyholds and Customary Freeholds a. Copyholds— Open Mines or Quarries .... copyholder may work upon mines or quarries . b. Copyholder — New M ines or Quarries .... limited rights as respects new mines or quarries general disability in other respects — waste remedies fur wrongful workings — forfeiture . action to recover — damages and account injunction A Lord — New Mines or Quarries general disability to work new mines or quarries . remedies for wrongful workings— damages and account measure of damages .... injunction d. Customary freeholds . . . • Sect. 2. Workings — Wastes .... lord has general right to work but must leave sufficient common injunction when workings wrongful Sect. 3.— Workings — Church Lands . a. Bishop — Dean and Chapter— Prebendary Archbishop or Bishop .... deprivation — prohibition or injunction Dean and Chapter .... Prebendary prohibition or injunction h. Parson may work Open Mines or Quarries e. Parson — New Mines or Quarries limited ri^ht* as respects new mines or quarries 72- 72— 74, 76 77 77- 79- 75 72 72 74 72 72 73 73 74 75 74 74 75 75 75 77 76 76 77 -82 -79 77 78 78 79 79 79 -82 79 \iv TABLE OF CONTENTS. PAGE '•. Parton — New Mines or Quarries — continued. general disability in other respects ....... 79 rrongful workings— action to recover — account and ages 80 dilapidations 81 injunction or prohibition Bl deprivation i. Wobbxbgs — Lands subject to Mobtgaob a, Mortgagor work unless security prejudiced b. Mortgagee — Open Mines and Quarries ....... s 2 — U mortgagee may work open mines or quarries aeral musi do bo but be may not, pri 83 r jual allowai - 1 h* vies in i bound to work new n - . . . v i norentil irity insufficient . .... s i tor wrongful wi rlring ....... entii ' . wai ' . B.— WOBKINOe I. LHDB Bl BJ LOT .... woi 1 b ndor 36 workings by purchaser si.i c. 6. — WoBKiKOfl Lands of Railwai ob Eabboub i ompaxiks ;v to work . Sv i. T. I -i b Copyholds lord may not, primA or Bub-soil — ta linage - 1 I an 88 I Hey r. Qranville CHAPTER V. WORKINGS AMi USER, FOUNDED <>N | DSTOM, PRE8I RIPTION, AM' STAT1 I SBOT. 1. WOBKTNOS — PBOFTTS A PBKHDBB a. Custom '•• (a) Generally right of profit a prendre not in general claimable by custom (,3) Copyholders and Wasi rally '.'1 — 03 exception in case of copyholder and waste '.'1 but right Bubject to restriction '.'2 occupant '-'^ Irish tenant (j) Copyholders and Wastes— Evidence of Custom .... . ' blic Go d 93 TABLE OF CONTENTS. xv PAOB . 94—97 h. Prescription • qR (a) Generally— Freeholders and Wastes— Evidence . . . • »* ™ right of pro/a d pr«uZra in general claimable by prescription . 94 but ri -lit subject to restriction evidence of right ...••• commoner only entitled to what he digs (0) Copyholders and Wastes Q7 exception in case of copyholder and waste ^ c Lost Grant -Prescript ion Act • " ' ,,. . l( ,MAKV AND PRESCRIPTIVE WOBKINGS 98-104 u. Custom . . • • • " 98 99 f a ) Copyholders and their Tenements— Generally . . . • : may I y custom work new mines or quarries m copy- ^ ■1 ng immaterial that right exerciseable without limit ... ^ righl I by 1': --liption Act ' (3) CbpyfoW, rs and th ir J\ nements-Eoidenoe of Custom . . i^ evident e of custom . 100 admissibility of evidence as to adjoining manor . ■ • admissibilit; lencc as to other kind of waste or other ^ mineral jqj Anglesey v. Hatherton 101 bland v. Hill 102 fy) Lords and Copyholds • 102 lorda may by custom work new mines m copyhold . . . m _ m (Z) Lords and Wastes ' ' * ' doubtful whetl m by custom work m waste without ^ leaving Bufficienl common 102 102 103 103 104 104 104 , 104—108 104. . . 103—107 107 son v. Green B ' , may, if bound te make compensation wanton working ( 6 ) Concurrent Customs b. Prescription ' lord may by prescription work in copyhold . BW5T. 3.— WOBKIHGfl MATERIALS FOB BOADfl Highw.(Turnp ...•■• Gi :i. Highw. Ad • Rail. CL Cons. Art . '•.'... 108,109 SECT ' ^SJrf man, i may hav"e right of user by custom or prescription . 108 but custom as to copyholds subject to restriction . . ■ CHAPTER VI. WORKING AN,. USER AS BETWEEN CO-OWNERS AND PARTNERS. SK( „ l ._CO.OW H BBSHIP WITHOUT PARTNERSHIP EITHER IN WORKINO ^^ or Land • 110j m a. Possession and Working— Generally. . ■ • m every co-owner entitled to work .... XVI TAHLE OF CONTKMS. ta-.e a. Possession and Working — Generally — eonti remedies for interference with right — generally H« ret and manager m i active waste 1 1 1 A. Act unt and Contribute t ........ 111.11- everj - entitled to account Hi not in general to Ken or contribution 1'- c. Pledging Credit al partners i j third parties . . . 118 Hi- OW LAHD BUT PaBTHKBSHIF in WORKING . . 112— 116 a. Paueuion and Working— Generally 112,113 every partner entitled to worit l'- receiver and manager injunction * 13 b. Account and > 113,114 ever I account 1 1 •> and to contribution and lien ...••■■• I' 1 ft Pledg • 11: ' third parties . . . 116 Si r. 8. — ) Contribution H9> 1 -" ry partner entitled in genera I lien . . 119,120 (*) Delay '-' account — delay trust— delay »** e. Pi dit (a) Dealings on irniit . 182, 123 manager nun-, primd facie, bind partners by n< usual dealings (/3) Borrowing Money .,..•■•■•■ 123 — 12. > doubtful whether he can bind by borrowing money . . . 123 but he probably can '-' (>") Negotiable Instruments 185, 126 be cannot, prim&facie, nor can any partner bind h biable instruments '-■' Comp. Act, 1862 lL ' ,; TABLE OF CONTENTS. XV11 CHAPTEE VII. POWERS WITH RESPECT TO BALES, PURCHASES, ENFRANCHISEMENTS PARTITIONS, EXCHANGES, AND EN( LOSURES. PAGE Part A.— Saxes, Purchases, Knki:an< jhibbments, Partitions, and INCI/08URB8 ^27 — 148 r. 1.— Tenant in Feb 127. 128 (a) Tenant in Fee Simple 127,128 may sell 1*7 infant may under Court 127 lunatic may under Couri 127 (0) Tenant in Tail 128 may sell 128 SECT. 2. — Tenant foh Like 129 — 132 a. 8 ■ ■> I •■ 1877 129 may sell under Court '29 and may separately sell surface and mine 129 applicati - ....•••• 129 b. Settled Land Act, ISS2 130—133 meanings of "mines and minerals "and "mining purposes"in ttd Act I 30 tenant for life may seU, enfranchise, exchange, and partition . 130 and ma y deal with surface and mine, and create ctions and - 130 application of -rapital money L31 improyemente with capital money 132 . • 132, 133 r. 3.— Trustees 133—136 a. Sale— Generally 1,5,i may nut prirndfacie sell, or separately sell surface and mine . 133 & # Sale— Confirmation of Sales Act 133,134 may under Act separately deal with surface and mine . . . 133 practice under Act 134 0. Purchase I:;l - l35 may not in genera] purchase 134 d. Sale and Purchase— Express Powers 135,136 -irable to give express powers .... 135 application of proceeds 136 1.- Mortgagee 136 g r . 5.— Co-owiffBBa and Partners 137—141 a. Transfer of Share 137,138 co-owner may transfer • • 137 partner in working may transfer '■'" ordinary partner may transfer 137 h. Partition 138 co-owner may in general partition 138 and partner in working 13 g but not ordinary partner 138 c. Sale of Entirety— Partition Acts .. 138,139 co-owner may have sale under A ft Prot i' ' ■ ' ■'nuition . . . \li dr.tfi pi rder • • ■-....■•■■•■ co: ( y ) I •! ■ ■ PAdl 1M 154 156 1 : :, - L58 156 l 56 167 157 168 OHAFTBB V11I. POWERS W1TB RE8PE< l l" LEASES AM' LI< BNSES. ■ . ■-■- • 5 5 ■ a. ' ' . ),. J P illy ...■■•■■• (P) 1 i ■ ■ f P rt • . lease libcrti'- L69 L61 L69 161 159 L69 L60 161 161 i 162 162 162 164 162 104 I C.5 162 16S 164 167 164 166 166 166 167 167 167 167, 168 L67 168 168- 173 168, 169 L68 169 170 h 2 XX TABLE OF CONTI. (0) Incidental Provisions — Construction of Powers- t i me when power exerciseable duration . rents application of ..... Sect. 4.— Cohporations continued. PAGE 171 171 172 I7:i 173—180 Croii- a Lands ............ 173, 174 Commissioners of Woods may lease . application of rente Duchy of Cornwall Lands Prince of Wales ma I ■ amliaile and Tywarnhaile I Greenwich Hospital Lands Admiralty may 173 171 171 174 171 17:. 176 d. Church Lands 176 (a) Generally .......... Bishop D( ' and < Chapter Parson i&) Ecclesiastical Leasing Act* — Harming and Building Leases I I, < !orp. may Lease ....... Inn mnsl comply with statutory requiren application of rents ..... tanning and building leases i. University and College Lands ..... tain universities and i bul hum comply with statutory requirements incidental powers application of rents ..... /'. Clin rill/ J. 1 1 mix ...... trustees of charities may lease g. Materials for Roads ..... Sect. 6. Lands in Ibeland mines in I reland may be Leased bul statutory requ i inst be complied incidental powers with 1 7:.. 1 76 17:. 17:. L76 176—178 17.; 177 177 178 178 179 179 L80 180 180 180 181 l-l CHAPTER L\. < <>ni i;.v i - -i. i. L. — <;i;m;i;ai.1.y -STATUTE OF PbATJDS— AMBIOUITT OR UN- i'I.UAIMY L8S (a) Generally 1^2,183 contracl respecting land includes, prima facie, everything beneath 182 exceptions L82 right of pre-emption 182 construction— contract or lease 183 (_i8) Statute of frauds 183—186 mine or quarry — soleowner L83 co-owner 184 TABLE OF CONTENTS. X\l (0) Statute of Frauds — continued. partner in working ordinary partner minerals (7) Ambiguity or Uncertainty ambiguity uncertainty Sect. 2.— Title— Nox-kxistknck OF Mine OB Qi ABBi (a) Abstract of Title (fl) Contract dealing with land generally . if mil,.- or quarries exhausted, or third party has right to work vriidnr cannol enforce,and purchaser can enforce with com pensatioa exceptions stipulations in contracts M Contract dealing with mine or quarry specifically . enforcemenl not refused because mining property speculative . Skct. 3.— Possession and Payment • purchaser ot lessee entitled to subject-matter as from date contract . sale by Court taking possession not an acceptance of title .... motion to pay purch into Court . interim " preservation " under Jud. Rules capacity to -ell and payment of price r . 4 _fbaot> and Inequality— Delai Enpoecement (o) Fraud are license 251 license clothed with interest 251 c. Exclusive and Non-exclusive Licenses 252,253 license prima facie non-exclusi \ e ....... 252 rights ( if non-exclusive licensee ........ 252 exclusive license 253 d. Usual provisions 254,255 generally 254 rent — account 254 covenants running with the land 254 distress 254 re-entry 254 c. Construction of doubtful instruments 255 — 257 grant held to create lease 255 b nts held to create licenses 256 other difficulties of construction 25(5 /. Stamps 257 CHAPTER XIII. BANKRUPTCY AND DEATH AND CONSEQUENT DEVOLUTION. a. Bankruptcy — Dissolution of Partnership — Devolution .... 258 bankruptcy generally dissolves partnership . . . ... 258 devolution 258 b. Bankruptcy— leading 258—261 person working mine or quarry not necessarily trader within Irish Bankruptcy Act 258 alum-makers — brick-makers — lime-burners 259 phosphate mine 259 stone quarry 259 XXvi TABLE OF CONTENTS. PAGE b. Bankruptcy — Trading — continued. coal mine n. • . . 260 salt mine ......•••••'• i + .260 slate quarry . , , • 260 iron mine — lead mine result of law England 261 c. Death generally dissolves partnership d. Death— Devolution 262—267 (o) Mine or Quarry 262—265 dower assignment of dower 2 "^ real and personal representatives— minerals 263 963 co-owner partner in working ....-••••• ordinary partner , • Mortmain Acts — trust for individuals 264 trust for undertaking 264 Irish or Scotch or foreign mines— companies under Comp. Act, 1862 26: ' (j3) Renders 265, 266 real and personal representatives heir and remainderman Apportionment Act 266 Mortmain Acts 266 (7) Minerals or their Proceeds 266, 267 (8) Fixtures and Moveable Effects CHAPTER XIY. NEIGHBOURS— GENERAL PRINCIPLES— NUISANCES— USER OF SURFACE OR SUB-SOIL. Sect. 1.— General Principles 268, 269 generally 268 general principle that a man may use his property as he pleases . 268 general principle that a man must not injure his neighbour . . 269 conflict of two principles 269 Sect. 2.— Nuisances 269—273 (a) Generally 269, 270 obstructing navigation 269 sinkings or erections near highways 270 fencings near highways 270 (0) Brick-burning 270—272 no right to burn bricks if nuisance created 270 but nuisance is a question of fact ....... 270 remedies 271 persons liable 272 burning near highways 272 (7) Iron-calcining, Copper-smelting, Lime-burning, $c 272, 273 similar principles in case of iron, copper, or lime-works, &c. . . 272 Pub. Health Act 273 TABLE OF CONTENTS. XXY11 PAGE (7) Iron-calcining, Copper-smelting, Lime-burning, fyc. — continued. persons liable 273 calcining, &c, near highways 273 Sect. 3. — User op Surface or Subsoil 273—285 a. Necessary User 273 — 282 (o) Generally . 273, 274 digging pits and sinking shafts 273 fixing machinery — constructing ponds or sough pits . . . 274 laying minerals or rubbish on surface 274 (&) Voluntary Provisions 274 — 276 invalid liberties 274 restrictions as to exercise 275 compensation for damage 275 assignment of liberties 275 implied liberties not affected by express 276 (y) Statutory Provisions " . . 276 — 281 Inclosure Acts 276 Duke of Cornwall and assessional manors — generally . . 277 compensation 278 notice and security 278 costs 279 recovery of compensation and costs 279 Cornwall Subm. Mines Act 279 Crown Lands Act 279 lands in Ireland 280 (8) Mimes Royal 281, 282 doubtful whether Crown may, to work mines royal, dig pits on surface 281 i. Unnecessary User 282, 283 right of user confined, prima facie, to things necessary . . 282 and to bond fide user 282 e. Destructive or Dangerous User 283 285 (o) Quarrying — Streaming for Tin 283, 284 no right of destructive user, such as quarrying, unless under clear grant 283 Bell r. Wilson 283 Hext v. Gill 284 same principle probably applies as to "streaming for tin " . . 284 mode of dealing with damages where surface in settlement . 284 (£) Fencing Excavations 285 neglect to fence 285 compensation for damage 285 CHAPTER XV. NEIGHBOURS— SUPPORT. Part A. — Different kinds of Support 286 287 lateral and vertical support 286 substance receiving support 286 substance giving support 286 two underlying strata 2^7 XXviii TABLE OF CONTENTS. PAGE Part B. — Nature of Right op Support 287—293 a. Substance Receiving Support 287 290 (o) Land in Natural State 287—289 right for laud in natural state uot an easement .... 287 but not an absolute right of property 287 Backhouse v. Bonomi 288 Smith v. Thackerah 288 damages recoverable once for all in single action . . . 289 result of the cases 289 03) Land in Non-natural State 289, 290 right for land in non-natural state an easement . . . . 289 b. Substance Giving Support 290, 291 («) Land ... 290, 291 land — degrees of right not measured 290 meaning of " neighbour " 291 (/3) Water 291 c. Generally 292. 293 right independent of values of substances or of mode of working . 292 right only to prevent removal after existence as separate tenement . 292 right generally in respect merely of active interference . . . 2915 Part C— Existence op Right op Support 293—341 Sect. 1.— No Actual or Alleged Contract, Custom, or Prescrip- tion 293—304 a. Land in Natural State 293—298 (a) No Evidence as to Severance 293, 294 where no evidence as to severance, owner of land in natural state has prima facie right to support . . . 293 (j3) Voluntary Severance 294—297 grantee with exception of mines has similar right . . 294 grantee with exception of surface has similar right, whether grant is in fee 295 or for years 296 result of the cases 297 ( 7 ) Statutory Severance 297, 298 same principles apply to statutory severance . . . 297 (S) Land Covered by Water 298 b. Land in Non-natural State 298 — 304 (a) Artificial Weight 298, 299 owner of land artificially burdened has, prima facie, no right of support for the weight 298 (0) Artificial Weakening 299—301 similar principles apply to land artificially weakened . 299 immaterial whether excavations made by owner or third party 299, 300 or by defendant if entitled to make them . . . 300 (7) Principle of. Brown v. Robins 301 (5) Remedy for Damage although Right non-existent . . 301 — 303 consequent liability for injury to building . . . , 301 liability for negligence 302, 303 doubtful whether duty to notify intention to withdraw support 303 TABLE OF CONTEXTS. XXIX PAUE (e) Value of Land not entitled to have Artificial Weight sup- ported 303, 304 Mordue v. Durham 303, 304 (O Statutory Severance 304 Sect. 2. — Actual or Alleged Contract, Custom, or Prescription 304—341 a. Exclusion of Bight for Land in Natural State . . . .304—310 (a) Contract 304—306 right of support for land in natural state may be excluded by contract 304, 305 incidental consequences of exclusion of right . . . 305, 30(5 (0) Custom and Prescription 306—309 right may also be excluded by custom if making com- pensation is a part 306 according to Hilton v. Granville, may not otherwise by custom and may not by prescription . . . . 306, 307 but Hilton v. Granville probably wrong as to custom . 307, 308 and prescription and custom on similar footing . . 308 freeholds and copyholds 308 wastes 308, 309 (7) Remedy for Damage although Right Excluded . . . 309 liability under contract or custom 309 liability through negligent or malicious or unusual working 309 (8) Subsequent Acquisition of Excluded Might . . . . 309 subsequent acquisition by prescription probably impos- sibie 309,310 h. Acquisition of Bight for Land in Non-natural State . . .310 — 318 (a) Express Grant 310 right of support for land in non-natural state may be acquired by express grant 310 (0) Implied Grant 310—313 by implied grant, as where at time of severance weight actually on land 310 or avowedly intended to be put there 311, 312 sew T ers 312 gas mains and pipes 312 or even where possible future weight contemplated. . 312,313 no implied right for reasonable weight . . . . 313 (7) Prescription — Enjoyment since Legal Memory . . . 313 right may also be acquired by enjoyment since legal memory 313 (8) Prescription — Enjoyment for Twenty Years . . . . 314 — 317 or by enjoyment for twenty years 314 former doubts whether claim could not be defeated if enjoyment dissented from 314 — 316 Dalton v. Angus 316 this case shows that claims cannot be so defeated . . 316, 317 (e) Generally as to Acquisition 317, 318 necessary that claimant should have support for land in natural state and should act reasonably and without negligence 317, 318 XXX TABLE OF CONTEXTS. (0 Subsequent Loss of Acquired Right and should keep in repair c. Construction of Ambiguous Provisions (o) Generally right which would otherwise exist not excluded by impli cation Mundy v. Rutland right which would otherwise be excluded not preserved by implication K /3) Provisions unconditionally obliging Mine Ua:i< Miiw nils ii n i corked ...... Haines v. Roberts Dugdale v. Robertson Shafto v. Johnson Eadon v. Jeffcock (7) Provisions securing Compensation to Mine Oich, r 1 ith ns Damages or as Purchase Money Cal. R. C. v. Sprot Elliot v. N. E. R. Co N. E. R. Co. v. Crossland .... Dudley Canal Co. v. Crazebrook Birmingham Canal Co. v. Dudley Mid. R. Co. v. Checkley Rail. CI. Cons. Act Fletcher v. G. W. R. Co G. W. R. Co. v. Bennett .... compulsory purchase of easements . effect of severance before compulsory purchase R. v. Leeds. &c. R. Co. ; R. v. Aire, &c. Nav. < 0. (5) Provisions securing Compensation to Surface Owner ft Damage ........ Harris v. Ryding Smart v. Morton Davis v. Treharne Bell v. Love Smith v. Darby Aspden v. Seddon Buccleuch v. Wakefield (e) Provisions relieving Mine Owner from Liability Damage ..... Rowbotham v. Wilson .... Richards v. Harper .... Williams v. Bagnall ... Buchanan v. Andrew Benfieldside Loc. Bd. v. Consett Co. . (() Remarks on and Result of the Cases remarks on the cases .... result of the cases .... PAGE 318 318 318—341 319—321 319, 320 320, 321 321 321—323 321, 322 322, 323 323 323—331 323, 32 4 324— 32C, 326 326, 327 328 329 329 329 329, 330 331—33.', 331, 332 332 335, 336 336 336 336, 337 337 338—341 338, 339 339—341 TABLE OF CONTENTS. XXxi PAGE Tart D.— Statutory Provisions as to Support 341 — 348 (a) Generally 341 (j8) Purchases— Ss. 16, $c, Lands Clauses Act—S. 77, Bail. Cl.Act—Ss. 12, 18, Wat. CI. Act 341, 342 purchases — Rail or Wat. Co 341,342 (7) Compensation for not working — Ss. 6, 78. 70. Rail. CI. Act — Ss, 6, 22, 23, Wat. CI. Act—S. 308, Pub. Health Act, 1875 . . . 342—346 generally 342 compensation for not working 342, 343 person entitled to give statutory notice 343 consequent position of reversioner 343 — 345 these principles not always applicable 345 length of notice — counter notice 345, 346 working after notice — withdrawal of notice 346 improper notices 346 compensation under Pub. Health Act, 1875 346 (5) Damage for Severance — S. 81, Bail. CI. Act—S. 25, Wat. CI. Act . 347 damage for severance 347 (e) S. 85, Lands CI. Act—Ss. 78, 81, Bail. CI. Act—Ss. 22, 25, Wat. CI. Act 347 bond under Lands CI. Act 347 (() Mode 386 remedies for interference 386 d. Subterranean Water . . 386 xxx i v TABLE OF CONTENTS. PAGE SECT.2.-WATEK FLOWING NATURALLY-UNDEFINED COUESE-PER- ^^ COLATIONS •_ 386387 a. Undefined Course " water in undefined course may, F « f"»*> be abstracted 01 ^ ^ diverted at pleasure ' 3g7 _^ 389 b. Percolations— Natural Bights a fortiori percolating water . Chasemore v. Richards ' °[ Acton v. Blundell 387 ' 3f Ballacorkish, &c, Co. v. Harrison but rights only exerciseable for purposes of utility . c. Percolations— Acquired Rights 389,390 primafacie rights may be affected by grant .... damages for interference prescription and custom O0, "\ Sect. 3.— Water flowing in Artificial Channel .... 390—395 a. Natural Rights water flowing in artificial channel may, prvmAfacie^ be ab- stracted or diverted at pleasure b. Acquired Rights 390 > 391 («) Grant 3 ^- :; '" p rim a facie rights may be affected by grant . . . 390,391 (0) Prescription :;:i1 or by prescription 391 Ivirney v. Stocker 391 Gaved v. Martyn 391,392 but there must be an enjoyment as of right . . . 392 Arkwright v. Gell . : ^2, 393 Woodr. Waud 393,394 Gaved r. Martyn 394, 39B construction of water-course under mere license . . 396 (7) Remedies 396 remedies for infringing rights — damages . . . 395 injunction 395 Part B.— Fouling "Water 396—400 a. Water flowing naturally — Defined Course ...... 396 riparian owner may not, primafacie, foul natural surface water . 396 but may under grant or prescription 396, 397 or under custom ... . . 397 remedies for wrongfully fouling natural surface water . . . 397 h. Water flowing i/rt Natural Course, but not in Defined Channel — P e- colaflng Water . . . . 398 no right primafacie to foul water in undefined channel, or perco- lating water 398 e. Water flowing in Artificial Channel 398. 399 or water in artificial channel — Magor v. Chadwick . . . . 398 Whaley v. Laing 398, 399 other cases of fouling 399 damages 399 d. Rivers Pollution Prevention Act 399, 400 offences against the Act 399, 400 proceedings 400 TABLE OF CONTENTS. XXXV PAGE Past C— Discharge and Escape op Water 400—415 Sect. 1.— Discharge of Water 400—403 a. Natural Rights 400 401 no right prima facie to discharge water 400,401 upper and lower mines . . . . . . . . 401 absence of negligence immaterial 401 b. Acquired Bights 402 403 right may be acquired by grant or prescription . . . . 402 Rail. CI. Act , 402 Wat, CI. Act 402 other statutory grants 402 403 not exerciseable wilfully or negligently 403 Sect. 2.— Escape op Water 403—413 a. Natural Rights — Gravitation — Water present Nat u rail 1/ . . 403 409 (o) Generally 403 prima facie right to permit escape of water present naturally 403 (£) Natural User of Property— Damage 404 — 406 well water . 404 upper and lower mines — natural workings — Smith v. Kenrick 404 rainfalls — Wilson v. Waddell 404, 405 Lomax v. Stott 405 drifts or ways made in ordinary course in higher owner's property 405 user of way of necessity 406 law otherwise where outlet made by higher owner . . 406 or where barrier against sea removed 406 (7) Non-natural User of Property— No Damage . . . 407 freedom from liability, when user non-natural, and no damage ensues . . 407 intercepted water — West Cumb. &c. Co. v. Kenyon . . 407 (8) Non-natural User of Property— Damage .... 407 — 409 liability where user non-natural, and damage ensues . 407, 408 tapping a stream — Crompton v. Lea .... 408, 409 negligent or malicious operations 409 b. Natural Rights— Gravitation— Water present artificially . . 409—412 (a) No Statutorg Powers 409, 410 prima facie bability where water present artificially — Rylands v. Fletcher 409 substitution of new for old course of stream . . . 409, 410 hability irrespective of malice or negligence or unusual user 410 (0) Statutory Powers 410—412 statutory freedom from liability — Dunn v. Birmingham Canal Co 410, 411 apparently immaterial that plaintiff knew of probable damage 411 immaterial that compensation clause existed . . . 411 Pub. Health Act, 1875 411 but liability where Wat. CI. Act applies . . . . 411,412 or where construction or maintenance improper . . . 412 C '2 XXXvi TABLE OF CONTENTS. PAGE c. Natural Bights— Vis Major— Act of God, %c 412.413 no liability, where vis major, or act of God, or of third party . 412. 413 d. Acquired Bights right to protection against escape of water may be acquired . 413 Sect. 3.— Combined Effects of Discharge and Escape . . 413 Sect. 4.— Remedies 414, 415 previously specified remedies ordinary remedies — damages 414 water-leave rent 414 measure of damages 414 injunction 414,415 abatement inspection .... - 415 CHAPTER XVIII. COENISH AND DEVONSHIRE COURTS, RIGHTS, AND CUSTOM-. Sect. 1.— Stannaries Courts 416—427 a. Jurisdiction and Proceed i ngs 416 — 126 (a) Generally — Judge and Officers — Nature of Jurisdiction . . 416 — 419 generally 4 1 ( '. , 117 judge and officers 417 nature of jurisdiction — generally 417,418 general common law jurisdiction 418 general equitable jurisdiction 418 non-metallic minerals 418,419 (0) Proceedings 419—423 actions and plaints 419,420 pursers' and creditors' suits 120,421 specific performance — declarations of forfeiture — recovery of possession 121 injunction 421. 122 rectification of register — winding-up 122 special jurisdiction 422,423 miscellaneous matters of procedure 423 (•y) Concurrent and E.echisi re Jurisdiction 424,426 personal actions 121 general equity jurisdiction 424, 425 rectification of register 425 winding-up 425 h. Appeals and, Execution 426. 427 (a) Appeals 426 (j8) Execution 426, 127 generally L26, 127 attachment of debts 427 Sect. 2.— Tin-Bounding — Generally . 428 sect. 3.— Tin-Bounding in Cornwall 428 437 a. Mutual Rights of Owners of Soil and Tinners 428 432 (a) Generally— Manner of obtaining Bounds— Estate of Pounder . 428 — 430 generally 428 bounding de novo in private lands 429 TABLE OF CONTENTS. XXXV11 PAGE (o) Generally — Manner of obtaining Bounds — Estate of Bounder— eont inued. bounding in private lands anciently bounded .... 430 bounding in assessional manors 430 estate of bounder 430 09) Dish or Toll-Tin . . . - 430, 431 (7) Renewals and Workings 431, 432 renewals 431 workings 432 (5) Transfer and Devolution 432 b. Mutual Bights of Co- Adventurers 432, 433 working and contribution 432, 433 supply of goods— sale of interest 433 fraud 433 c. Bounders and other Tinners 433, 434 titles 433 tinners and unwrought bounds 433 trespass 433, 434 d. Bight in respect of water 434,435 customary right of using and diverting water — streaming for tin . 434 Ivimey v. Stocker 434, 435 customary right of washing minerals and discharging sand, &c. . 435 discharging water 435 e. Validity of Custom 435 — 437 has been doubted 435. 436 but probably on insufficient grounds 436, 437 Sect. 4. — Tin-Bounding in Devonshire 437 — 439 a. Mutual Bights of Owners or Occupiers of Soil and Turners . . 437, 438 (o) Generally — Estate of Bounder . 437 (0) Dish 437 (7) Benewals and Workings 438 (8) Transfer and Devolution 438 b. Mutual Bights of Co-Adventurers 438 working and contribution 438 fraud 438 c. Bounders and other Tinners 439 tinners and unrenewed bounds 439 trespass 439 d. Bights in respect of Water 439 e. Validity of Custom 439 the custom is frequently invalid 439 Sect. 5.— Other Rights and Customs 440, 441 title to manorial mines 440 leases and licenses 440 devolution of tolls 440 drainage adit 440 evidence of custom 441 XXXVlii TABLE OF CONTENTS. CHAPTER XIX. THE COST-BOOK SYSTEM AND COENISH AND DEVONSHIRE COMPANIES. PAGE Sect 1 —Generally— Registration— Management .... 442—451 " n n.. .... 442—446 a. Generally cost-book companies usually but not always in Cornwall or Devon 442. 4 13 working " within and subject to the stannary jurisdiction " . . 443 scrip mines formation of a cost-book company— grant or licence meeting of adventurers and record of arrangement .... 443, 444 rules regulating cost-book companies ***> **B commencement of working in cost-book companies .... fraud in origin of cost-book companies *± 6 cost-book companies rateable ; and may sue and be sued in cost- book name b. Registration 447,448 stannary company not being cost-book company . . cost-book company registration optional in stannary companies 447.11s effect of registration and winding-up on former cost-book member 448 registered office c. Management '' s *&1 meetings of cost-book and stannary companies —generally . . 448, 44i> business transacted at meetings II'-' intervals between meetings 149,460 register of list of members of stannary companies . . . . register of mortgages of stannary companies 160 filing of rules of stannary companies 161 rules of stannary companies — additions and alterations . . . 461 Sect. 2.— Account— Calls and Contribution 161 166 a. Account account in cost-book companies 161 I, Calls in- validity of meeting stannary companies — statutory action, &c 162 cost-book companies — collusive creditor's action, &c 462,463 cost-book companies — lien for non-payment 453 stannary companies — forfeiture 453 incidental provisions . . . . . . . • • 464 cost-book companies — forfeiture ' '• ' e. Contribution 164,466 purser's suit 164,466 contribution in winding-up 166 Sect. 3.— Third Parties — Contract and Tort 1 5 •" a. Dealings on Credit 455 — 460 supplying creditor of cost-book company may, prima facie, have action against member 455, 456 defences which will not prevail 456, 167 defences which may prevail 457 membership must be shown 467,468 TABLE OF CONTENTS. XXXIX PAGE a. Dealings on Credit — continued. not necessary to show freehold conveyance to member . . . 458 commencement and end of membership 459 evidence of supply 459 creditor's suit 459, 460 Duke of Cornwall 460 b. Borrowing Money 460, 461 purser or agent or member of cost-book company cannot, prima facie, bind by borrowing money 460, 461 c. Negotiable Instruments 461, 462 and a fort iori cannot in respect of negotiable instruments . . 461,462 d. Creditors of Individual Members of Cost-booh Companies ... 462 e. Tort by Cost-book Company 462 Sect. 4.— Transfer, Kelinquishment, and Devolution . ... 463—475 a. Transfer 463—470 (o) Powers 463 power to transfer shares in cost-book and stannary companies . 463 08) Contracts— Generally 463—466 cost-book companies — 4th sect, of Statute of Frauds — lease . . 463, 464 licence 464 17th sect 464 parol contract generally good 464 usual mode of contracting 465 cost-book companies — abstract of title 465 delivery and payment 465 fraud — rescission 465, 466 (7) Completion — Special Contracts 466 — 469 cost-book companies — parol transfer generally good . . . 466 usual mode of transfer — substitution of names in cost-book . 466 stamps 466, 467 entry in cost -book is pri md facie evidence of transfer . . 467 commencement of liability and benefits 467, 468 special contracts 468 both parties not liable 469 (5) Inoperative Transfers — Frauds vpon Third Parties . . . 469,470 stannary companies — inoperative transfers 469 frauds upon third parties 469, 470 b. Relinquishment 470—474 (a) Poicers 470 power to relinquish shares in cost-book and stannary companies 470 (j8) Notice to Purser — Account and Payment— Special Contracts . 470 — 473 stannary companies — notice to purser 470 cost-book companies— right of and liability to account . . . 470, 471 mode in which account taken 471 payment of balance 471, 472 action for account 472 special contracts — waiver of account 472 waiver of payment 472, 473 (7) Completion .... 473, 474 cost-book companies — removal of name 473 end of liability 473, 474 disposal of relinquished share in stannary company ... 474 xl TABLE OF CONTENTS. PAGE c. Devolution 474, 475 (a) Bankruptcy bankruptcy of member does not dissolve cost-book company . 474 (/8) Death 474, 475 nor death 474, 475 interest in land treated as personalty 476 Mortmain Acts 4/5 Sect. 5.— Dissolution 475—477 a. Sale 475 stannary company may sell its property 4 « 5 b. Winding-up 476, 477 generally 476 stannary companies — former member 476 wages of miners, &c 476 disputed debts or claims 476, 477 interpleader 477 several stannary companies ........ 477 Sect. 6.— Recognition op Cost-Book Custom 478 cost-book custom must be proved in ordinary courts . . . 478 CHAPTER XX. GLOUCESTERSHIRE RIGHTS AND CUSTOMS. a. Generally . 47;i generally — rights of property 17'.i customs 480 meaning of ' free miners ' I > 1 registration of ' free miners ' 481,482 meaning of ' gales ' 482 b. Mutual Rights of the Grown and Free Miners 482 — 493 (o) Gales 482—487 nature of gales and persons entitled thereto 482, 483 applications and grants 483 estate of galee 483, 484 metes and bounds of gales — Brain v. Harris 484 ' galeage ' rent— royalty 485, 486 collateral agreement to pay larger rent 486 accounts — plans — inspection 486 remedies for non-payment of rent or royalty 486, 487 (0) Leases 487 ( 488 leases of quarries 487 other leases _ 487 488 recovery of rent or royalty |>> (7) Liberties and Licences 488 4S9 not subject to rents, &c 1 >. >s subject to rents, &c 488 489 (5) Rules as to Working , 439 491 workings 489,490 discontinuance of workings 490 TABLE OF CONTENTS. xli PAGE (5) Rules as to Working — continued. special rules . 490 remedies for non-compliance 491 (e) Transfer and Devolution 491,492 generally 491 renewals of quarry leases 491, 492 (O Forfeiture and Surrender 492, 493 forfeiture 492 re-gales 492 surrender 492, 493 rights and duties incident to surrender 493 re-grants 493 (tj) Stamps 493 e. Mutual Rights of Private Owners and Free Miners 494, 495 private owner entitled to moiety of rent 494 workings — generally 494 surface damage 494, 495 d. Mutual Rights of Free Miners 495 — 499 (a) Grants 495, 496 priority of applications 495 no right to more than three gales . .... 495, 496 publications — interference with existing gales 496 proceedings to restrain grants 496 08) Boundaries 496,497 (7) Workings 497—499 right to use roads 497 duty not to impede other workings 497, 498 duty to leave barriers 498 duty to prevent escape of water 498, 499 remedies for non-compliance with rules 499 e. Tresjmssers 499 CHAPTER XXI. DERBYSHIRE R[GHTS, COURTS, AND CUSTOMS— REMAINING LOCAL RIGHTS AND CUSTOMS. Sect, l.— Derbyshire Rights, Courts, and Customs .... 500—519 a. Generallg 500—502 rights of property 500 customs 500, 501 statutes and courts 501 statutory meanings of ' mine,' ' vein,' ' mineral property,' and 'ore' 501,502 doubt as to application of Met. Mines Reg. Act .... 502 admissibility of evidence of custom as to adjoining manor . . . 502 b. Barmote Courts 502—508 (o) Generally — Officers and Functionaries 502 — 506 districts and jurisdictions 502, 503 officers and functionaries 503 times and places for holding courts 503, 504 x lii TABLE OF CONTENTS. PAGE (a) Generally— Officers and Functionaries— continued . business transacted at courts duties of stewards, barmasters, and deputy barrnasters . . 504, 505 grand jurors — views " 50o, 506 (0) Proceedings, Appeals, and Execution 506—508 proceedings— generally 506, 507 title 507 trespass and debt appeals execution 607, 508 c. Mutual Rights of the Crown and other Owners of Mineral Duties and the Miners 508—513 (a) General Bight to Search — Meers and Gifts 508—511 general right to search 508, 509 meers and gifts— generally . . . . • • • • 509, 510 non-working of third meer 510,511 consolidation of veins 511 interest of miner — rateability 511 (0) Freeing Dish — Lot and Cope 511, 512 freeing dish 511 lot and cope 611,612 (y) Transfer and Devolution 512,513 High Peak 512,513 other districts 513 (S) Forfeiture 513 non-freeing — non-measurement for duties 513 trespass 513 non-working 513 d. Mutual Eights of Landowners and the Mi/ners 514—517 generally ........... 514 user of surface — right to erect buildings, &c. — rights of way and water 6 11 . ."> 1 ~> duty as to fences 515 right to remove buildings, «fec 515,516 duty as to levelling land and removing building-; . . . 516 landowners' rights as to minerals, &c., other than lead . . . 516 position of Crown as to third meer 516, 517 e. Mutual Rights of Co-adventurers 517 forfeiture for non-working, or non-contribution to expenses . 517 /. Mutual Rights of the Miners and ot In r Mint is 517,518 titles 517 trespass , 517. 518 forfeiture for non-working— outgoing and incoming miner . 518 g. Tithe-owners— Creditors— ■' Relievers ' 518,519 tithe-owners 518, 519 creditors 519 'relievers' 519 Sect. 2.— Remaining Local Eights and Customs 519—522 (a) Isle of Man 519 ( 520 (£) Staffordshire 520 (7) Durham and Yorkshire 520 521 (8) The Colonies 521,522 TABLE OF CONTEXTS. xliii CHAPTER XXII. STEANGEKS— WRONGFUL POSSESSION- WRONGFUL ABSTRACTION- MALICIOUS INJURIES. Sect. 1.— Strangers— Wrongful Possession 523—530 a. Existence of Remedies 523 524 recovery of possession ...... 523 524 establishment of title — generally 524 Land Reg. Act 524 b. Loss of Remedies _ 524 530 Limit. Acts — mines or quarries as part of entire solum . . . 524, 525 Thew v. Wingate 525 Smith v. Stocks m 525 526 not necessary to inclose surface 526 Limit. Acts— mines or quarries as separate subject-matter . . 526, 527 possession of part of a mine — possession of overlying seam . . 527 non-user 527, 528 purchase and exception probably on similar footing as to non-user . 528, 529 statutory severance and non-user 529 trespass ' ( , 529 Prescription Act 529 Duchy of Cornwall minerals 529 530 Sect. 2.— Strangers— Wrongful Abstraction— Civil Remedies . 530—545 a. Existence of Remedies — Person Liable 530 531 generally 530 person liable 530,531 liability of mortgagee for acts of mortgagor 531 b. Damages — Account _ 53 \ 533 where injured party has right of property 531, 532 or is presumed to have it 532 where injured party has right of possession 533 injury to reversioner — trespass by railway company . . . . 533 c. Measure of Damages 533 538 (a) Generally 533—537 different measures of damages 533, 534 former remedies at law 534 remedies in equity — bona fides 534, 535 no colour of right — negligence, &c 535, 536 intentional fraud 536 stranger working by authority of mortgagee . . . . 536 result of the law , . . . 5 36 , 537 (0) Consequential Damage— Unsalealility of Minerals — Trade- Allowances 537, 538 consequential damage 537 538 unsaleabibty of minerals 538 trade allowances 538 d. Mode of Dealing ivith Proceeds 538. 539 tenant for life or years 538, 539 copyholder 539 e. Injunction — Receiver and Manager 539, 540 xliv TABLE OF CONTENTS. PAGE e. Injunction — Receiver and Manager — continued. injunction . 539, 540 receiver and manager 540 /. Inspection 540 — 542 inspection of property may usually be had 540,541 but terms will usually be imposed 541,542 inspection of title-deeds 542 g. Loss of Remedy 542 — 546 release 542 Stat, of Limitations 542,643 running of statute, where wrong-doer demises mine, reserving rents in kind .",11 delay 544 death of wrong-doer — wrongful abstraction 544 personal tort 644,646 Sect. 3.— Wrongful Abstraction— Criminal Remedies . . . 646,646 statutory provisions :>).'> decisions thereon 546,546 Sect. 4.— Malicious Injuries 646—660 (o) Browning Mines 646 statutory provision .Mil decision thereon 546 Q3) Setting Fire to Mines 546,647 statutory provisions 546,647 (7) Injuring Airways, Waterways, Shafts. ,vc 547, 648 statutory provisions .", j 7 decisions thereon .". 1 7 . : l - (5) Injuries to Machinery and Ejfnts ;,4s_;,.-,i) generally — statutory provision 548,549 decisions thereon ;, I ;i rioters — statutory provisions 549,1 CHAPTER XXIII. TAXES, DUTIES, RATES, AND TITHES— PAUPEJ: >\.\ CLEMENTS. Sect. 1.— Land Tax . . - K1 ••••... ... ool Sect. 2.— Income Tax r ,5 1—556 a. Property Liable— Chargeable Value \ 661- 5 & 6 Vict. c. 85, Sch. A. '.'.'. 551,552 slate mines— brickfields .... 552 29 & 30 Vict. c. 36, s. 8 . .'...'. 662 effect of this provision .... . 553 Ryhope, &c., Co. v. Foyer ' r.- profits and gains-realised property . . . ' 554' ;,;,.-, allowances .... ' -.- b. Person Liable . __„ „„_ ,, "•••■•.... oo5, 006 generally .... ' ,.„ , . ■■•••... 5oo, 5o6 retainer ... c. Place of Liability .... d. Appeals . rjf 556 TABLE OF CONTENTS. xlv PAGE Sect. 3.— Succession Duty 557 open mines 557 new mines 557 Sect. 4.— Kates ' 55 7 _5 67 a. Property Liable 557—559 mines and quarries 557 553 subsidiary property 559 rateability depends on working, not profitableness .... 559 b. Chargeable Value 559 553 (o) Hypothetical Rent— Double Rating 559—561 hypothetical rent — mines (not being tin, lead, or copper) and quarries 559, 5,30 tin, lead, or copper mines — statutory meanings of ' mine,' ' dues,' ' lease,' and ' fine ' 560 statutory meanings of ' gross value ' and ' rateable annual value ' 560, 561 Snailbeach Co. v. Forden — double rating 561 (0) Other Circumstances determining Amount 562, 563 royalty 562 enhanced value 562 convenience and situation — profits . . . ... 562 allowances 562) 563 0. Person Liable _ 563 566 generally 563 licensee 563, 564 grantee of easement 564 cost-book company — galee 564 rateability depends on occupancy, not title .... 564 lessor, &c, sometimes rateable — tin-bounder — Derbyshire custom 564, 565 deduction from rent 565 566 Devonshire v. Barrow Co. — Chaloner r. Bolckow .... 566 d. Place of Liability 557 Sect. 5.— Tithes 567 Sect. 6. — Pauper Settlements 568 CHAPTER XXIV. EMPLOYERS AND LABOURERS. Part A.— Regulation Acts 569—606 Sect. 1. — Generally 569 571 generally 569 application of Acts 569 statutory meanings of ' mine ' and ' shaft ' 569 570 statutory meanings of ' owner ' and ' agent ' 570 571 notices 574 Sect. 2.— Summary Proceedings — Offences, Penalties, and Punishments 574 574 (a) Summary Proceedings 574 572 Court of Summary Jurisdiction 571,572 Xl v i TABLE OF CONTENTS. PAGE (/3) Offences, Penalties, and Punishments °' 2_ 57J generally ■ ' „., proceedings for offences and penalties 573 imprisonment a ^ eals " '. 573, 574 prosecutions same offence not twice punishable 5 ' 574 application of penalties Sect. 3— Inspectors— Certificated Managers 574—579 / -> t 4. .... 574 — >76 (a) Inspectors ._.„_. appointment, removal, and qualifications cw4, o7o powers— generally ° t .... 575, 576 plans (/3) Certificated Managers 576—679 appointment of managers '^'J examiners and boards inquiry into competency 677, 678 record of cancellation— restoration expenses of Secretary of State— fees misdemeanours 578,678 Sect. 4.— Employment of Women, Young persons, and ('iiii.i.ki.n r»7'.» — 582 (a) Generally offences as to employment statutory meanings of ' child,' ' young person,' and ' woman ' . 579 (0) Behno and Above Ground — Schools 579—582 prohibitions and restrictions as to employment below ground . 579, 580 schools 580 > 58) duty as to reports restrictions as to employment above ground . . . ,681,582 register 582 (7) Drivers of Engines, &c 582 Sect. 5.— Wages— Dressing Accommodation 583—686 (o) Wages 583, 584 place of payment ■ ,s:i payment by weight 583 offences as to wages 583 check-weigher 683, 584 Weights and Measures Act 584 03) Dressing Accommodation 584 Sect. 6.— Provisions against Accidents 585 — 600 a. General Rules 585 — 592 (a) Generally 585, 586 offences as to general rules 585, 586 books 586 inspection of ' coal-mines ' on behalf of workmen . . 586 (£) Fencings — Shafts, Moods, and Working Places — Machinery 586 — 588 fencings — shafts — roads and working places . . . 586, 587 use of different shafts — engineman — guides and sign ailing 587 cover overhead — chains — flanges or horns — breaks and indicators — ladders 587, 588 TABLE OF CONTENTS. xlvii PAGE (£) Fencings — Shafts, Roads, and Working Places — Machinery — cont. fencings — machinery — gauges and safety-valve — wilful damage, &c 588 daily inspection of ' coal-mine ' 588 (7) Gases and Explosions — Water — Stations and Refuges . .588 — 592 gases — ventilation 588, 589 inflammable gas — reports 589 safety lamps — barometers and thermometers . . . 589, 590 restrictions as to explosive or inflammable substances . 590 exemptions from restrictions 590, 591 water and bore-holes 591 stations — withdrawal and re-admission of workmen . 591 man-holes and refuges 591, 592 b. Special Rides 592—595 ' coal-mines ' — generally 592, 593 ' metalhf erous mines ' — generally 593 false statements — neglect of transmission — defacing notices, &c. 593, 594 certified copy is evidence 594 statutory force of special rules — offences 594 Howells v. Wynne — Higham v. Wright 594, 595 c. Other Causes of Danger 595 — 600 (o) Generally 595, 596 notice by inspector of causes of danger not otherwise provided for 595, 596 K. v. Spon Lane Co 596 (0) Single Shafts . 596—598 prohibitions as to single shafts 596,597 exceptions from prohibition 597 offences as to single shafts 597, 598 (7) Explosive Substances 598 Explosives Act, 1875 598 (S) Fencing of Abandoned Mines 598 — 600 fencing of abandoned mines — generally .... 598, 599 Stott v. Dickinson — Arkwright v. Evans — Evans v. Mostyn 599 Nuis. Rem. Act, 1855 600 Sect. 7.— Arbitration 600, 601 parties to arbitration 600 arbitrators and their appointment 600 umpire and his appointment 600, 601 qualifications of arbitrators and umpire 601 proceedings — remuneration — costs 601 Sect. 8. — Accidents and Inquests . . 601, 602 accidents 601, 602 inquests 602 Sect. 9. — Notices of Openings, Abandonments, and Changes — . Plans — Returns and Reports 603—605 (o) Notices of Openings, Abandonments, and Changes — Plans . . 603, 604 notices of openings, abandonments, and changes . . . 603 plans 603, 604 Q3)' Returns a?ul Reports . . . . 604,605 returns as to quantity of mineral, number of persons employed, &c 604 Xlviii TABLE OF CONTENTS. ()8) Returns and Reports— continued. other returns 604, 605 reports of inspectors 605 reports of examining boards and courts of inquiry ... 605 Sect. 10.— Publication of Acts and Special Rules . . . 605, 606 publication 605, 606 defacing abstract or rules 606 Part B.— Other Acts 606—613 (o) Factory and Workshop Acts 606, 607 statutory meaning of ' non-textile factory ' and ' workshop ' . . 606, 607 provisions of Acts 607 (/J) Truck Act 608—610 application of Act— statutory meanings of 'artificer' and 'em- ployer' 608 payment of wages in coin 608 decisions as to ' artificer ' 608, 609 exceptions from Act 609, 610 (7) Employers and Workmen Act, 1875 610 (5) Employers Liability Act 610 — 613 statutory meanings of 'employer,' •workman.' &e file, (ill remedy for personal injury 611,612 amount of compensation — procedure 612 where Act not applicable 612,613 INDEX 615 TABLE OF CASES: WITH REFERENCES TO ALL THE REPORTS. PAGE Abbot v. Weekly, 1 Lev. 176 91 Aberaman Iron Works v. Wickens, 4 Ch. 101 ; 17 W R 211 • 20 L T N. S. 89 '.'..' 199 Abinger v. Ashton, 17 Eq. 358 ; 22 W. R. 582 2, 229 230 238 Abrahall v. Bubb, 2 Swanst. 172 . ' . ' 45 Abson v. Fenton, 1 B. & C. 195 ; 1 L. J. (0. S.) K. B. 94 . . 368, 369, 370, 378 Ackroyd v. Briggs, 14 W. R. 25 ; 13 L. T. N. S. 521 . . . 37, llo| 532^ 540 Acland v. Atwell, 2 Roll. Abr. 813 ; 3 Swanst. 499, n 79, 80 Acton v. Blundell, 12 M. & W. 324 ; 13 L. J. Exch. 289 . 26,' 68, 382, 386, 388, 389, 404, 407 Adair v. Shaftoe, 19 Ves. 156 527 Adams v, Lloyd, 3 H. & N. 351 ; 27 L. J. Ex. 499 ; 4 Jur. N. S. 590 ; 6 W r' 752 ; 31 L. T. 219 ' ' [ 524 v. Stannaries, Cro. Car. 333 413 Addie v. Inland Revenue, 12 Scot. Law. Rep. 274, cited in Forder v. Handvside ie *- d -233 \ : 555 Adshead v. Needham, cited 2S Beav. 122 541 Allan's Trustees v. Hamilton, 5 Sess. Cas. (Ser. 4) 510 216 Allaway v. Wagstaff, 4 H. & N. 681 ; 29 L. J. Exch. 289 155, 333, 351, 479, 494, 495 Allen v. Hilton, 14 Ves. 58 ; 1 Fonb. Tr. Eq. 432 ' 194 Alloway v. Braine, 26 Beav. 575 ; 33 L. T. 100 . . . . 194, 491 Alresford, &c. Authority v. Scott, 7 Q. B. D. 210 ; 50 L. J. M C 103 • 29 W R. 741 ; 45 L. T. N. S. 73 ' / [ 1QQ Alton Woods, Case of, 1 Co. Rep. 26 b. ; 2 And. 154 ; Moor. 413 ; Jones, 79 41 Ambrose v. Whittingham ; see Andrews v. Whittingham Lake Tin and Copper Mining Co., In re, 14 Ch. D. 390 ; 49 L J Ch 457 j 28 W. R. 783 ; 42 L. T. N. S. 604 '. 447 Amiles v. Chambers, 1 Mod. 35 ; 2 Keb. 596 .... 567 Andrews v. Whittingham, Carth. 277 ; nom. Whittingham v. Andrews, 1 Salk.' 255 ; 4 Mod. 143 ; 1 Show. 364 ; nom. Ambrose v. Whittingham, Comb 201 ZU1 523 Anglesey v. Hatherton, 10 M. & W. 218; 12 L. J. Exch. 57 ; 6 Jur. 305 100, 101, 441, 502 Angus v. Dalton, 4 Q. B. D. 162 ; 48 L. J. Q. B. 225 ; 27 W. R. 623 • 40 L T N. S. 605 ; S. C. 3 Q. B. D. S5 ; 47 L. J. Q. B. 163 ; 38 L. T. N. S. 510 ; see Dalton v. Angus 286, 287, 288, 290, 294, 299, 302, 310, 313, 314, 315, 316, a , 317, 318 Anon, Amb. 209 62 23Q ^ Fonbl. Bk. R. 251 260 ~ : H °S- U7 ".'.".' 46, 53 d , TABLE OF CASES. PAGE Anon, cited in Mitchell v. Dors, 6 Ves. 147 ; S. C. rum. Flamang's Case, cited 7 Ves. 308 ' " _ fiQ cited Sugden's Vendors and Purchasers (14th ed.) at p. 393 188 v. White, 3 Swanst. 108, n. . ■ ■ • ■ ■ ■ ' ' Antrim v. Gray, 9 Ir. Rep. Eq. 513 . . ■ • • • ■ • " ' Appletreewick Lead Mining Co., In re, L. R. 18 Eq. 9o ; 43 L. J. Cb. ,93 ; 11 W. R. 678 ; 30 L. T. K. S. 287 JJJ *« Arkwright * Cantrell, 7 A- & E. 565 ; 7 L. J. Q. B. 63 . . . 503, o04 „ Evans 49 L. J. M. C. 82 . . • 500, 502, 509, 569, 5/0, 599 ; Gel] 5 m t W 203 ; 8 L. J. Ex. 201 . 315, 390, 392, 394, 401, 102, 500, 519 Arlett v. Ellis, 7 B. & C. 346 ; 5 L. J. (O. S.) K. B. 301 . . . 76, 103, 151, 152 Arthur v. Lamb, 2 Dr. & Sm. 428 ; 12 L. T. N. S. 338 Ill Arundell v. Atwell, cited in Tapping, Readwm Prize Essay, p. 7 . 44- Ashton v. Stock, 6 Ch. D. 719 ; 25 W. R. 862 . 206, 527, 529, 532, 534, 535, 538, 540, 543 Ashworth v. Stanwix, 3 E. & E. 701 ; 30 L. J. Q. B. 183 ; 7 Jur. N. S. 467 ; 4 L. T. K S. 85 • • • • 812 Aspden v. Seddon, (1) 10 Ch. 394 ; 44 L. J. Ch. 359 ; 28 W. R. .. T. N S. 415 . 294, 296, 304, 305, 311, 320, 324, 333, 337, 339, 340, 341 (2) 1 Ex. D. 496 ; 45 L. J. Ex. 353 : 24 W. EL B28 \ 34 L. T. N. S. 906 . 74, 98, 102, 292, 294, 295, 804, 306, 309, 311, 312, 334, 351 Astry v. Ballard, 2 Mod. 193; 2 Jones, 71 ; 2 Lev. 1S5; 3 E 723 ; 1 Freem. 444 2, 46, 47, 51, 53 Atherleyv. Sanders (Ap. 1S81, Coram Kay, J.) 17 Atkins v. Davis, Cald. 315 557 Atkinson, Ex parte, 1 M. D. & De G. 300 ; 4 Jur. 971 260 Atkinson v. King, 2 L. R. (Ir.) 320 ; Ir. Rep. 11 C. L. 536 10. _ . 251, 257, 272, 288, 294, 351 Attersoll v. Stevens, 1 Taunt. 183 . . ' . L, 538 A.-G. v. Chambers, 4 De G. M. & G. 206 ; 2 W. R. 636 ; 23 L. T. 238 ; S. I De G. & J. 73 31, 530, 5 I v. Cleaver, 18 Ves. 219 -71 - v. Ewelme Hospital, 17 Beav. 366 ; 22 L. J. Ch. S46 . . . . 203 v. Francis, Set. 219 (V.-C. H. 13 July, 1874) 272 v. Gauntlett, 3 Y. & J. 93 95 v. G. E. R. Co., 5 App. Cas. 473 ; 49 L. J. Ch. 545 : 28 W. EL 768 ; 12 L. T. N. S. 810; S. C. 11 Ch. D. 449 ; 48 L. J. Ch 428 ; 27 W. K. 759 ; 40 L. T. N. S. 265 86 v. Hanmer, 27 L. J. Ch. 837 ; 6 W. R. 804 ; 4 Jur. X. S. 751 ; 31 L. T. 379 . . 31, 36, 91, 92, 94, 151, 207 ■ v. Jackson, 5 Ha. 355 200, 480, 485, 486, 496 v. Marlborough, 3 Madd. 498 32, 43, 45 — - v. Mathias, 4 K. & J. 579 ; 27 L. J. Ch. 761 ; 4 Jur. X. S. 628 ; 31 L T. 367 90, 91, 94, 95, 9 79, 480 v. Mylchreest, 4 App. Cas. 294 ; 48 L. J. P. C. 36 ; 40 L. T. N. S. 764 12, 15, 17. 103, 519, 520 v. Rees, 4 De G. & Jo. 73 ; 5 Jur. N. S. 745 31, 530 v. Sefton, 11 H. L. C. 257 ; 34 L. J. Exch. 98 ; 12 L. T. N. S. 242 ; S. C. 2 H. & C. 362 ; 32 L. J. Exch. 230 ; 9 Jur. N. S. 1296 ; 8 L. T. X. S. 794 ; 3 N. R. 45 557 v. Staffordshire Copper Extracting Co. , Set. 219 (V.-C. W. 29 June, 1866). 272 TABLE OF CASES. A.-G. v. Tomline, (1)15 Ch. D. 150 ; 48 L. J. Ch. 593 ; 43 L. T. N". S. 486 ; S. C. 5 Ch. D. 750 ; 46 L. J. Ch. 654 ; 25 W. R. 803 ; 36 L. T " N - S. 684 . . . . 12, 13, 34, 35, 49, 74, 75, 539 v. ~ (2) 14 Ch. D. 58 ; 49 L. J. Ch. 377 ; 28 W. R. 870 ■ 42 L T N. S. 880 ; S. C. 12 Ch. D. 214 ; 48 L. J. Ch. 593 ; 28 W. R. 76 ; 40 L. T. N". S. 775 . . . . 401, 403, 404, 406, 410 v. Tossell, Set. 223 (V.-C. W. 2 Aug., 19 Dec. 1867) . 270 271 v Wall, 4 B. P. C. 665 . . . . . . . 502; 508 5n ' 5U Attwood v. Small, 6 CI. & F. 232; 2 Jur. 226, 246 . . . . 199 At wood r. Ernest, 13 C. B. 881 ; 22 L. J. C. P. 225 ; 17 Jur. 603 ; 1 W R 436 ■ . f 21L A T \ 185 - * • " • 442,450 Austin v. Amhurst, 7 Ch. D. 689 ; 47 L. J. Ch. 467 ; 26 W. R. 312 ; 38 L. T. N ' S - 217 90, 91, 96 Backhouse v. Bonomi, 9 H. L. C. 503 ; 34 L. J. Q. B. 1S1 ; 7 Jur. X. S. 809 ; 9 W. P. 769 ; 4 L. T, X. S. 754 ; see Bonomi v. Backhouse . 287, 288, 289 „ , „ 292 > 29 4, 301, 351, 353 Badger v. Ford, 3 B. k Al. 153 102 151 Bagg'sCase, 11 Co. Rep. 93 b ' "' 7S Bagnall v. L. & X. W. R. Co., 7 H. & X. 423 ; 31 L. J. Exch. 121 • S Jur X s' 16 ; 10 W. R. 232 ; 5 L. T. X. S. 621 ; S. C. 1 H. & C. 544 ; 9 Jur X S 254 ; 9 L. T. X. S. 419 412 4M Bagot r. Bagot, 32 Beav. 509 ; 33 L. J. Ch. 116 ; 9 Jur. X. S. 1022 ; 12 W R ' 35 ; 9 L. T. X. S. 217 .. . 24, 25, 46, 51, 52, 54, 57, 58,' 59," 60, 539 Bailey v. Stevens, 12 C. B. X. S. 91 ; 31 L. J. C. P. 226: 8 Jur X S 1063 • 10 W. E. 868; 6 L. T. X. S. 356 ... . ' 95 qfi q7 Bain v. Brand, 1 App. Cas. 762 " * '*' v. Hamilton, 6 Sess. Cas. (Ser. 3), 1 . ..." 033 Baird v. Kilsyth, 6 Sess. Cas. (Ser. 4), 116 . . .".'.' ' ' 2 06 v. Williamson, 15 C. B. X. S. 376 ; 33 L. J. C. P. 101 ; 10 Jur X S 152 ; 12 W. P. 150 ; 9 L. T. X. S. 412 . . 401, 403, 404, 405, 409, 413, 414 Baker v. Carter, 3 Ex. D. 132 ; 47 L. J. Ex. 586 ; 26 W. R. 497 . 586 v. Sutton, 1 Keen, 224 ; 5 L. J. Ch. 264 . . . '• 265 Ballacorkish Mining Co. r. Dumbell and Others, L. R. 5 P. C. 49 ; 43 L. J P C 19 ; 29 L. T. X. S. 658 . .' '. .' ' .' ' 388 v. Harrison, ibid. 10, 11, 18, 67, 68, 69, 87, 108, 388, 389, Ballard v. Dyson, 1 Taunt. 279 39 °' 519 ' ^ Balmain v. Shore, 9 Yes. 500 ' Balston v. Bensted, 1 Camp. 462 ' 'o Sfi Bamford v. Tumley, 3 B. & S. 62 ; 10 W. R, 803 ' . ' ' fl Bankart v. Houghton, 27 Beav. 425 : 28 L. J. Ch. 473 ; 5 Jur X S 289- 7 W. R. 197 ; 32 L. T. 382 ' ^2 273 354 v. Tennant, 10 Eq. 141 ; 39 L. J. Ch. 809 ; 18 W. R, 639 • 23 L T ' X S 1 ^7 ' " Bannister v. Bannister, 9 C. & P. 743 . ..." ' ' ' ° ' 1™ Barber «. Nottingham, &c. Co., 15 C. B. X. S. 726 ; 33 L J C P 193 • 10 Jur. X. S. 260 ; 12 W. R. 376 ; 9 L. T. X. S. 829 . ' 411 419 Barnes v. Mawson, 1 il. & S. 77 ' v. Ward, 9 C. B. 392 ; 19 L. J. C. P. 195 ; 14 Jur. 334 Barnsley Canal Co. v. Twibell, 7 Beav. 19 ; 13 L. J. Ch. 434 Barrow, Re, Set. 1499 (V.-C. M. 15 Dec. 1871) . Barrs v. Lea, 33 L. J. Ch. 437 ; 10 Jur. X. S. 996 ; 12 W. R 525 -10 L T X. S. 567 ; 3 X. R. 635 . . . " 28 270 345 129 265 ,1 2 Hi TABLE OF CASES. PAGE Barstow v. Reynolds, 2 Jur. N. S. 790 ; 4 W. R. 645 ; 24 L. T. 83, 278 . . 445 Bartlett v. Phillips, 4 De G. & J. 414 24, 47, 79, 80, 81 Barton v. Downes, Fl. & K. 505 188 Bartonshill Coal Co. v. Reid, 3 Macq. 266 ; 6 W. R. 664 ; 31 L. T. 255 . . 612 Barwell v. Brooks, 15 Jur. 418, n. ; 1 L. T. 75, 454 270 . v. Winterstoke, 14 Q. B. 704 ; 19 L. J. Q. B 206 ; 14 Jur. 392 ; 15 L. T. 23 549 Basiro v. Wharton, 1 Wood, 83 521 Basset v. Basset, Amb. 843 266 > U0 Bastard v. Smith, 2 M. & Rob. 129 ; 5 A. & E. 827 ; 1 Nev. & P. 242 ; 6 L. J. q. B. 8 . ' 382 > 386 > 439 > 440 Bateman v. Mid. Wales Rly. Co., L. R, 1 C. P. 499 ; 35 L. J. C. P. 205 ; 12 Jur. N. S. 453 ; 14 W. R. 672 125 Bateson v. Green, 5 T. R. 411 102, 103 Baxendale v. M'Murray, 2 Ch. 790 ; 16 W. R. 32 359, 397 Baynton v. Leonard, Set. 203 (M. R, 15 Feb. 1853) . . 353, 379, 533, 540, 542 Bealey v. Shaw, 6 East, 208 385, 396 Beardmore v. Tredwell, 3 Giff. 683 ; 31 L. J. Ch. 892 , 9 Jur. N. S. 272 ; 7 L. T. N. S. 207 2 <°> 271 Beaufort v. Bates, 3 De G. F. & J. 381 ; 31 L. J. Ch. 481 ; 8 Jur. N. S. 270 ; 10 W. R. 200 ; 6 L. T. N. S. 82 . . 237, 247, 356, 357, 358, 360 v. Morris, 6 Ha. 340 ; 12 Jur. 614 401, 414 v. Swansea, 3 Exch. 413; 12 L. T. 453 31 Beaumont's Mortgage Trusts, In re, 12 Eq. 86 ; 40 L. J. Ch. 400 ; 19 W. R. 767 136 Beeston v. Weate, 5 E. & B. 986 ; 25 L. J. Q. B. 115 ; 2 Jur. N. S. 540 ; 4 W. R. 325 ; 26 L. T. 272 391, 393 Bell v. Joell, Set. 203 (V.-C. H. 8 July, 1875) . . 353, 379, 533, 536, 537, 540 — v. Love. 10 Q. B. D. 547 ; 52 L. J. Q. B. 290 ; 48 L. T. N. S. 592 151, 204, 287, 294, 295, 298, 301, 304, 305, 307, 308, 309, 313, 317, 320, 332, 335, 337, 340, 351 — v. Midland Ry. Co. (1) 3 De G. & J. 673 356 — v. (2) 10 C. B. N. S. 287 ; 30 L. J. C. P. 27:1 : 7 Jur. N. S. 1200 ; 9 W. R. 612 ; 4 L. T. N. S. 293 . . 377 — v. Wilson, 1 Ch. 303 ; 35 L. J. Ch. 337 ; 12 Jur. N. S. 263 ; 14 W. R, 493 ; 14 L. T. N. S. 115 ; S. C. 2 Dr. & Sm. 395 ; 34 L. J. Ch. 572 ; 11 Jur. N. S. 437 ; 13 W. R. 708 ; 12 L. T. N. S. 529 4, 11, 12, 13, 15, 17, 19, 20, 59, 283, 284, 294, 320, 539 Bellot v. Littler, 22 W. R. 836 ; 30 L. T. N. S. 861 135 Beufieldside Local Board v. Consett Iron Co., 3 Ex. D. 54 ; 47 L. J. Ex. 491 ; 26 W. R. 114 ; 38 L. T. N. S. 530 206, 337 Bennett v. Griffiths, 3 E. & E. 467 ; 30 L. J. Q. B. 98 ; 7 Jur. N. S. 284 ; 9 W. R. 332 ; 3 L. T. K S. 735 541, 542 Bennitt v. Whitehouse, 28 Beav. 119 ; 29 L. J. Ch. 326 ; 6 Jur. N. S. 528 ; 8 W. R. 251 ; 2 L. T. N. S. 45 s 541, 542 Bentley v. Bates, 4 Y. & C. Eq. Ex. 182 ; 9 L. J. Ex. Eq. 30 ; 4 Jur. 552 111, 113, 114, 115, 117, 118, 125, 137, 159 v. Landor, Set. 743 (V.-C. S. 10 Aug. 1861) 159 Beresford v. Bacon, 2 Lutw. 1317 509 Berkley v. Shafto, 15 C. B. K S. 79 313, 332, 351 Betteley v. Stainsby, L. E. 2 C. P. 568 ; 36 L. J. C. P. 293 ; 15 W. R. 1047 ; 16 L. T. N. S. 701 468 Betts v. Thompson, 6 Ch. 732 ; 19 W. R. 1098 ; 23 L. T. N. S. 427 . 94, 95, 151 Bewick v. Whitfield, 3 P. Wins. 267 56, 539 Bibby v. Carter, 4 H. & N. 153 : 28 L. J. Ex. 182 ; 7 W. R. 193 ; 32 L. T. 260 297, 299 Bickett v. Morris, L. R. 1 Sc. & D. 47 ; 12 Jur. N. S. 803 ; 14 L. T. N. S. 835 30, 383 TABLE OF CASES. liii PAGE Bidder v. North Staffordshire Ry. Co., 4 Q. B. D. 412 ; 48 L. J. Q. B. 248 ; 27 W. R. 540 ; 40 L. T. N. S. 801 ; see Elliot v. North Staffordshire Ry. Co. 357, 358, 359, 364, 367, 376 Birch's Case (1), 2 De G. & J. 10 ; 27 L. J. Bkcy. 4 ; 6 W. R. 141 ; 31 L. T. 19 ; S. C. 29 L. T. 401 . . . . . . 442, 470, 473 (2), 28 L. J. Ch. 894 ; 7 W. R. 335 442, 470, 473 Birch- Wolfe v. Birch, 9 Eq. 683 ; 39 L. J. Ch. 345 ; 18 W. R. 594 ; 23 L. T. N. S. 216 57, 58, 60, 61, 62, 63 Birmingham v. Allen, 6 Ch. D. 284 ; 46 L. J. Ch. 673 ; 25 W. R. 810 ; 37 L. T. N. S. 207 287, 291, 294, 300, 353 Canal Co. v. Cartwright, 11 Ch. D. 421 ; 48 L. J. Ch. 552 ; 27 W. R. 597 ; 40 L. T. N. S. 784 . . . 142, 182, 184 v. Dudley, 7 H. & N. 969 ; 9 Jur. N. S. 24 . . . 327 v. Hawkesford, cited 7 East, 371 327 v. Lloyd, 18 Ves. 515 62, 391, 395 v. Swindell, 7 H. & N. 980 n 328 Bishop v. Bishop, 10 L. J. Ch. 302 ; 5 Jur. 931 52, 64, 65 v. Goodwin, 14 M. & W. 260 ; 14 L. J. Ex. 290 217 v. North, 11 M. & W. 418 ; 12 L. J. Ex. 362 .... 359, 370 Blackett v. Bradley, 1 B. & S. 940 ; 31 L. J. Q. B. 65 ; 8 Jur. N. S. 588 ; 5 L. T. N. S. 832 307, 308, 309 Blair v. Hunter Finlay & Co. , 9 Sess. Cas. (ser. 3) 204 388 Blake v. Peters, 1 De G. J. & S. 345 ; 31 L. J. Ch. 884 ; 9 Jur. N. S. 836 ; 10 W. R. 826 ; 1 N. R. 503 44 Blakeslevu Whieldon, 1 Ha. 176 ; 11 L. J. Ch. 164 ; 6 Jur. 54 . 196, 274 Blewett "v. Tregonning, 3 A. & E. 554 ; 5 N. & M. 234, 308 ; 4 L. J. K. B. 223, 234 90, 94 Blyth v. Birmingham Waterworks Co., 11 Exch. 781 ; 25 L. J. Ex. 212 ; 20 Jur. 333 ; 4 W. R. 294 ; 26 L. T. 261 411 v. Topham, Cro. Jac. 158 ; 1 Roll. Abr. 88 270 Boase v. Jackson, 3 Bro. & B. 185 ; 6 Moore (C. P.) 480 248 Bodmin United Mines Co., Re, 23 Beav. 370 ; 26 L. J. Ch. 570 ; 3 Jur. N. S. 350 ; 5 W. R. 300 ; 29 L. T. 20. . . . 444, 445, 457, 470, 472, 473, 478 Bolton Estates, In re, Set. 1491 (V.-C. W. 22 April, 1872) .... 163 Bond's Case, March, 16 9! Bonomi v. Backhouse, E. B. & E. 622 ; 27 L. J. Q. B. 378 ; 28 ib. 378 ; 4 Jur. N. S. 1182 ; 5 ib. 1345 ; 7 W. R. 667 ; 32 L. T. 156 ; 33 ib. 331 ; sec Backhouse v. Bonomi . . . 286, 287, 288, 289, 290, 294, 310, 315, 351, 353 Booth v. Pollard, 2 Y. & C. Exch. Eq. 61 198, 229 Bosworthon Mining Co., In re, 26 L. J. Ch. 612 ; 28 L. T. 352 . . . 455, 478 Bourne v. Taylor, 10 East, 189 34, 72, 73, 74, 87, 98, 102, 355 Bowen's Case, 4 W. R. 800 ; 27 L. T. 297 445, 469 Bower v. Peate, 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 288 Bowers v. Lovekin, 6 E. & B. 584 ; 25 L. J. Q. B. 371 ; 2 Jur. N. S. 1187 ; 4 W. R. 600 ; 27 L. T. 168 520, 609 Bowes' Estate Act, Re, Set. 1258 (V.-C. W. 18 July, 1863) .... 134 Bowes v. Ravensworth, 15 C. B. 512 ; 24 L. J. C. P. 73 ; 3 W. R. 241 ; 24 L. T. 257 3, 19, 361, 366, 367 Bowler v. Wolley, 15 East, 444 275 Bowles' Case, L. C. Conv. 37 ; 11 Co. Rep. 79b ; nom. Bowles v. Bery, 1 Roll. Rep# !77 32, 33, 55, 56, 59, 538 Bowser v. Colby, 1 Ha. 109 ; 11 L. J. Ch. 132 ; 5 Jur. 1178 . 240, 241, 242, 523 v . Maclean, 2 De G. F. & Jo. 415 ; 20 L. J. Ch. 273 ; 6 Jur. N. S. 1220 ; 9 W R. 112 ; 3 L. T. N. S. 456 10, 26, 34, 67, 68, 69, 73, 87, 88, 364, 376, 402, 433 jjy TABLE OF CASES. PAGE Box v. Jubb, 4 Exch. D. 76 ; 48 L. J. Ex. 417 ; 27 W. R. 415 ; 41 L. T. N. S 412, 413 97 206 Boyce v. Greene, Batty, 608 Boyd v. Bruce, 11 Sess. Cas. (ser. 3) 243 Boyd's Settled Estates, In re, 8 Ir. Rep. Eq. 76 . . . . • • - Bradbee v. Christ's Hospital, 4 M. & G. 714 ; 5 Scott, N. R. 79 ; 11 L. J. C. P. 209 302 Bradbiirn v. Morris, 3 Ch. D. 812 .... 355,356,361,374,377,378 Bradburne v. Botfield, 14 M. & W. 559 ; 14 L. J. Ex. 330 .... 238 Bradly v. Stratchy, Barn. 399 '*> ' \1 T Brain, ife, 18 Eq. 389 ; 44 L. J. Ch. 103 ; 22 W. R. 867 ; 31 L. T. N. S. 17 . 492, ' 493, 496 „ Harris, 10 Exch. 908 ; 24 L. J. Ex. 177 ; 25 L. T. 219 207, 214, 480, 481, 484, 531 v. Thomas, 50 L. J. Q. B. 662 . . . . 413, 491, 498, 499, 531 Brand v. Bell's Trustees, 11 Sess. Cas. (ser. 3) 42 255 Breadalbane v. Jamieson, 2 Sess. Cas. (ser. 4) 826 41 Bridges v. Potts, 17 C. B. N. S. 314 ; 33 L. J. C. P. 33« ; 10 Jur. N. S. 1049 ; 11 L. T. N. S. 373 244 Brigstocke v. Brigstocke, 8 Ch. D. 357 ; 47 L. J. Ch. 817 ; 38 L. T. N. S. 760 . 47 Briscoe v. Drought, 11 Ir. C. L. Rep. 250 .... 4, 380, 393, 394, 395 Broadbent, Ex parte, 1 M. & A. 635 ; 3 L. J. Bkcy. 95 . . . 137, 258, 260 v. Ramsbotham, 11 Exch. 602 ; 25 L. J. Ex. 115 ; 4 W. R. 290 ; 26 L. T. 244 381, 386 v. Wilks, Willes 360 ; 2 Str. 1224 ; 1 Wils. 63 109 Bronitield, Ex parte, 1 Ves. 453 44 Brook v. Badley, 4 Eq. 106 ; 36 L. J. Ch. 741 ; 37, ib. 884 ; 16 W. R. 947 ; 16 L. T. N. S. 762 266 Brough v. Homfray, L. R. 3. Q. B. 771 ; 9 B. & S. 492 ; 37 L. J. Q. B. 256 ; 16 W. R. 1123 589 Brown v. Byers, 16 M. & W. 252 ; 16 L. J. Ex. 112 125, 461 i'. Chadwick, 7 Ir. C. L. Rep. 101 4, 16, 48, 205, 523 v. Dibbs, 25 W. R. 776 ; 37 L. T. X. S. 171 . . . 86, 534, 535 v. Kidger, 3 H. & N. 853 ; 28 L. J. Ex. 66 . . . . - 124, L25 v. Rawlins, 7 East, 409 35 v. Robins, 4 H. & 1ST. 186 ; 28 L. J. Ex. 250 ; 32 L. T. 261 292, 301, 302, 313, 315, 351 v. Yermuden, 1 Ch. Cas. 272, 282 518 v. Whiteway, 8 Ha. 145 2 v. Windsor, 1 Cr. & J. 20 299, 303, 310, 315 Brown's Trust Estate, In re, 32 L. J. Ch. 275 ; 9 Jur. N. S. 349 ; 11 W. R. 19 ; 7 L. T. K S. 346 ; 1 N. R. 13 12, 134 Brunton v. Hall, 1 G. & D. 207 ; 1 Q. B. 792 ; 10 L. J. Q. B. 258; 6 Jur. 340 364, 875 Brydon v. Stewart, 2 Macq. 30 612 Buccleuch v. Wakefield, L. R, 4 H. L. 377 ; 39 L. J. Ch. 441 ; 23 L. T. N. S. 102 . 22, 76, 100, 103, 156, 205, 290, 298, 304, 305, 306, 307, 309, 334, 351 Buchanan v. Andrew, L. R. 2 Sc. & D. 286 294, 304, 305, 309, 320, 321, 334, 337, 352 Buck v. Lodge, 18 Ves. 450 86 Buckinghamshire v. Ward, cited 3 Atk. 385 196 Buckley v. Howell, 29 Beav. 546 ; 30 L. J. Ch. 524 ; 7 Jur. N. S. 536 ; 9 W. R. 544 ; 4 L. T. N. S. 172 43,133,135 Buffy v. Stevens, Set. 219 ... 271 Bullen and Sheen's Case, Godb. 343 ... . 76 TABLE OF CASES. ly Bult v. Morrell, 12 A. & E. 745 ; 10 L. J. Q. B. 52 125 Bunbury's Estate, 1 Ir. Rep. Eq. 458 188 Burdon v. Barkus, 4 De G. F. & J. 42 ; 8 Jur. N. S. 656 ; 7 L. T. N. S. 116 ; S. C. 3 Giff. 412 ; 31 L. J. Oh. 521 ; 8 Jur. N. S. 130 ; 5 L. T. N. S. 573 ' 115, 119, 139, 184, 186, 263 Burgess, Ex parte, 2 Gl. & J. 183 259 Bumiester v. Norris, 6 Exch. 796 ; 21 L. J. Ex. 43 ; 17 L. T. 232 . 123, 124, 125 Burroughes v. Hayes, Hay. & Jo. 597 52 63 Burton v. Spencer, 2 "Wood, 336 V,i8 Bute v. Thompson, 13 M. & W. 487 ; 14 L. J. Ex. 95 215 Butler v. Kynnersley, 7 L. J. (0. S.) Ch. 150 ; 8 ib. 67 ; 2 Bli. N. S. 374. See Ormond v. Kynnersley .. 64 Buxton v. Hutchinson, 2 Vem. 46 519 567 Caddick v. Skidmore, 2 De G. & J. 52 ; 27 L. J. Ch. 153 ; 3 Jur. N. S. 1185 ; 6 W. R. 119 ; 30 L. T. 205 ' i 84 Caledonian Ely. Co. v. Belhaven, 3 Macq. 56 ; 3 Jur. N. S. 573 ; 29 L. T. 286 . 324 v. Henderson, 4 Sess. Cas. (ser. 4) 140 . . . . 330 v. Sprot, 2 Macq. 449 ; 2 Jur. N. S. 623 ; 4 W. R. 659 ; 27 L. T. 264 286, 290, 294, 310, 311, 320, 323, 331, 339, 353 Calmady v. Rowe, 6 C. B. 861 31 Calvert v. Gason, 2 Sch. & L. 561 53 Cambrian Ry. Co., Ex parte, 14 Ch. D. 645 ; 49 L. J. Ch. 365 ; 42 L. T. N S 714 Ill Campbell v. Leach, Amb. 740 ; 11 Hill MSS. 412 46, 51, 169, 170, 172, 266, 440 Cannon v. Yillars, 8 Ch. D. 415 ; 47 L. J. Ch. 597 ; 26 W. R. 751 ; 38 L. T. N S- 939 356) 358 Cardigan v. Armitage, 2 B. & C. 197 ; 3 D. & Ry. 414 . 11, 269, 273, 274, 276, 282 Carlyon v. Lovering, 1 H. & N. 784 ; 26 L. J. Ex. 251 ; 5 W. R. 347 ; 28 L. T. 356 202, 305, 396, 397, 402, 434 Carr v. Benson, 3 Ch. 524 ; 16 W. R. 744 ; 18 L. T. N. S. 696 . 212, 250, 252, 253 Carstairs v. Taylor, L. R. 6 Exch. 217 ; 40 L. J. Ex. 129 ; 19 W. E. 723 . . 412 Carter r. Whalley, 1 B. & Ad. 11 ; 8 L. J. (O. S.) K. B. 340 . . 123 Cartwright v. Forman, 7 B. & S. 243 219, 221 243 Cavendish v. Mundy, W. N. 1877, p. 198 59 Cavey v. Ledbitter, 13 C. B. N. S. 470 ; 32 L. J. C. P. 104 ; 9 Jur. N. S. 798 . 270 Cawdor, Re, Set. 1258 (Y.-C. W. 8 July, 1864) 134 Chadwick r. Trower, 8 Scott, 1 ; 6 Bing. N. C. 1 ; 8 L. J. Ex. 286 ; sec Trower v. Chadwick 299, 302, 303 Chaffers v. Woollier, 30 L. T. 126 444 Chaloner v. Bolckow, 3 App. Cas. 933 ; 47 L. J. C. P. 562 ; 26 W. R. 541 ; 39 L. T. N. S. 134 566 Chapman v. Day (1), 47 L. T. N. S. 705 . 277, 286, 297, 301, 304, 323, 332, 351, 354 v. — (2), 31 W. R. 767 ; 48 L. T. 1ST. S. 907 354 Chappel v. Ward, 1 AVood, 113 519 Chasemore v. Richards, 2 H. & N. 168 ; 3 Jur. N. S. 984 ; 5 W. R. 780 ; 29 L. T. 230 ; S. C. 7 H. L. C. 349 ; 29 L. J. Ex. 81 ; 5 Jur. N. S. 873 ; 7 W. R. 685 ; 33 L. T. 350 68, 382, 385, 386, 387, 388, 389 Chatterton v. White, 1 Ir. Eq. Rep. 200 52 Cheadle v. Proctor, 19 L. T. N. S. 289 183 Chetham v. "Williamson, 4 East, 469 252, 256 Chester & Holyhead Rly. Co. v. Hughes, 1 Dr. & Sm. 524 ; see Hughes v. Chester & Holyhead Rly. Co 361 v. Spargo, 18 L. T. N. S. 314 ; 16 W. R. 576 . . . . 424, 446 lvi TABLE OF CASES. PAGE Chilton v. Corporation of London, 7 Ch. D. 735 ; 47 L. J. Ch. 433 ; 26 W. R. 474 ; 38 L. T. N S. 498 91 > 96 Christian v. Gibson, 3 Moo. P. C. 351 52 ° Church v. Inclosure Commrs. 11 C. B. N. S. 664 ; 31 L. J. C. P. 201 ; 8 Jur. N. S. 893 12, 20, 155 Chynoweth's Case, 15 Ch. D. 13 ; 28 W. E. 897 ; 42 L. T. N. S. 636 . 469, 476 Clark, He, 1 Ch. 292 ; 35 L. J. Ch. 314 ; 13 L. T. N. S. 732 . . . . 159 Clarke v. Dickson. E. B & E. 148 ; 27 L. J. Q. B, 223 ; 4 Jur. N. S. 715 ; 31 L. T. 97 446 v. Hart, 6 H. L. C. 633 ; 27 L. J. Ch. 615 ; 5 Jur. N. S. 447 ; 32 L. T. 380 120, 121, 139, 140, 442, 454, 463 v. Smith, Set. 418 (V.-C. W. 3 Aug. 1849) 113 Clarkson v. Woodhouse, 5 T. R. 412 n. ; 3 Dougl. 189 . . . . 92, 102, 152 Clavering v. Westley, 3 P. Wins. 402 ; 2 Eq, Ca. Ab. 224, pi. 9 ... 240 ■ v. Clavering, Mosely 219 ; 2 P. Wms. 388 ; 2 Eq. Ca. Ab. 589, pi. 2 ; Sel. Ca. in Cha. 79 23, 24, 45, 46, 52, 56, 62 Clavering's Case, cited 5 Ves. 690 356 Clayton v. Corby, 5 Q. B. 415 ; 2 G. & Dav. 174 ; Da-'. & Mer. 449 ; 14 L. J. Q. B. 364 ; 8 Jur. 212 92, 94, 95, 97 v. Gregson, 5 A. & E. 302 ; 4 N. & M. 602 214 v. Penson, W. N. 1878, p. 158 218 Cleaton v. Gower, Finch, 164 I 62 Clegg v. Clegg, 3 Gift 322 ; 31 L. J. Ch. 153 ; 8 Jur. N. S. 92 ; 10 W. R. 75 ; 5 L. T. N. S. 441 113, 114 v. Dearden, 12 Q. B. 576 ; 17 L. J. Q. B. 233 ; 12 Jur. 848 ; 11 L. T. 309 406, 531, 538 v. Edmondson, 8 De G. M. & G. 787 ; 26 L. J. Ch. 673 ; 3 Jur. N. S. 299 ; 29 L. T. 131 57,117,119,120,121,122 v. Fishwick, Set. 418 (M. R. 2 June, 1852) . . . 113, 115, 119, 139, 140 v. Rowland, 2 Eq. 160 ; 35 L. J. Ch. 396 ; 14 W. R. 530 ; 14 L. T. N. S. 217 46, 51, 52, 53, 169 Cleland, In re, 2 Ch. 466 ; 15 W. R, 681 ; 16 L. T. N. S. 403 . . 259, 260, 261 Clements v. Hall, 24 Beav. 333 ; 2 De G. & J. 173 ; 27 L. J. Ch. 349 ; 4 Jur. N. S. 494; 6 W. R. 358 ; 31 L. T. 1 119, 121, 122 Clerk v. Clerk, 10 Sess. Cas. (ser. 3) 647 128 Cleveland v. Meyrick, 37 L. J. Ch. 125 ; 16 W. R. 104 ; 17 L. T. N. S. 238 . 4, 5 Clifford v. Watts, L. R. 5 C. P. 577 ; 40 L. J. C. P. 36 ; IS W. R. 925 ; 22 L. T. N. S. 717 215, 217, 220, 221 Clifton v. Walmesley, 5 T. R. 564 221 Clowes v. Beck, 13 Beav. 347 ; 20 L. J. Ch. 505 ; 17 L. T. 300 ... . 91 Cockerell v. Cholmeley, 10 B. & C. 564 ; 1 R. & My. 418 ; 1 CI. & F. 60 . . 33 Colby v. Gadsden, 34 Beav. 416 ; 11 Jur. N. S. 760 ; 12 L. T. N. S. 197 189, 190, 194, 195 Colchester v. Kewney, L. R. 2 Ex. 253 ; 36 L. J. Ex. 172; 15 W. R. 930 ; 16 L. T. N. S. 463 2, 551 v. Roberts, 4 M. & W. 769 ; 8 L. J. Ex. 195 362 Colebeck v. Girdlers Co., 1 Q. B. D. 234 ; 45 L. J. Q. B. 225 ; 24 W. R. 577 ; 34 L. T. N. S. 350 293 Collingwood v. Jenison, Set. 1032 (L. C. 5 May, 1708) 138 Colonial Bank of Australasia v. Willan, L. R. 5 P. C. 417 ; 43 L. J. P. C. 49 ; 22 W. R. 516 ; 30 L. T. N. S. 237 522 Coltness Co. v. Black, 6 App. Cas. 315 ; 51 L. J. Q. B. 626 ; 29 W. R. 717 ; 45 L. T. N. S. 145 169, 553, 554, 555, 563 Commissioners of Sewers v. Glasse, 19 Eq. 134 ....... 77 Comyn v. Kyneto, Cro. Jac, 150 . 523 TABLE OF CASES. lvii PAGE Comyn v. Wheatley, Noy. 121 523 Conolly v. Ely, 2 Moll. 515 53 Constable v. Nicholson, 14 C. B. N. S. 230 ; 32 L. J. C. P. 240 ; 11 W. R. 698 ; 2 N. R. 76 31, 90, 91, 93, 94, 96 Cooper v. Ince Hall Co., W. N. 1876, p. 24 541 542 Copper Miners Co. v. Fox, 16 Q. B. 229 ; 20 L. J. Q. B. 174 ; 15 Jur. 703 ; 16 L. T. 460 12 3 Coppinger v. Gubbins, 3 J. & L. 397 . 22, 23, 46, 51, 52, 53, 54, 55, 56, 61, 227 Coulton v. Ambler, 13 M. & W. 403 ; 14 L. J. Ex. 10 185 Courtown v. Ward, 1 Sch. & L. 8 51, 52, 63 Coverdale v. Charlton, 4 Q. B. D. 104 ; 47 L. J. Q. B. 446 ; 26 W. R. 687 ; 38 L. T. N. S. 687 20 Cowley v. Wellesley, 35 Beav. 635 ; 1 Eq. 656 ; 14 W. R. 528 ; 14 L. T. 245 . 12, 24, 47, 54 Cowling v. Higginson, 4 M. & W. 245 ; 7 L. J. Ex. 265 . . 356, 361, 362, 373 Cowper v. Blake, 17 Ves. 128 540 Cox v. Bishop, 8 De G. M. & G. 815 ; 26 L. J. Ch. 389 ; 3 Jur. N. S. 499 ; 5 W. R. 437 ; 29 L. T. 44 240 — v. Glue, 5 C. B. 533 ; 17 L. J. C. P. 162 ; 12 Jur. 185 ; 10 L. T. 374 20, 21, 26, 27, 533 — v. Stephens, 33 L. J. Ch. 62 ; 9 Jur. N. S. 1144 ; 11 W. R. 929 ; 8 L. T. N. S. 721, 787 ; 2 N. R. 436, 506 451 Cox's Case, 4 De G. J. & S. 53 ; 33 L. J. Ch. 145 ; 9 L. T. N. S. 493 444, 445, 459, 463, 467, 468, 470, 473, 478 Crang v. Adams, 5 B. P. C. 588 218, 527 Craven v. Kaye, Set. 205 (Field, J., for V.-C. H., 29 Aug. 1876) 414, 415, 533, 540 Crawshay v. Maule, 1 Swanst. 495 ; 1 Wils. 181 57, 112, 113, 115, 137, 138, 139, 140, 260, 261, 264 v. Morgan, L. R. 4 Q. B. 581 ; see Morgan v. Crawshay ... 558 Crease v. Barrett, 1 Cr. M. & R. 919 ; 5 Tyrw. 458 . . 26, 38, 429, 430, 431, 441 v. Sawle, 2 Q. B. 862 ; 2 G. & Dav. 812 ; 11 L. J. M. C. 62 429, 430, 431, 558, 564 Crocker v. Fothergill, 2 B. & Al. 652 249, 523 Crockford v. Alexander, 15 Ves. 138 86, 539 v. Salmon, Set. 420 (V.-C. W. 27 April, 1844) 262 Cromford Canal Co. v. Cutts, 5 R. C. 442 ; 12 L. T. 325 . . 329, 346, 347 Crompton v. Lea, 19 Eq. 115 ; 44 L. J. Ch. 69 ; 23 W. R. 53 ; 31 L. T. N. S. 469 269, 303, 309, 382, 401, 403, 404, 408, 409 Crossley v. Lightowler, 2 Ch. 478 ; 36 L. J. Ch. 584 ; 15 W. R. 801 ; 16 L. T. N. S. 438 ; S. C. 3 Eq. 279 396 Crowther v. Thorley, 31 W. R. 564 ; 48 L. T. N. S. 644 ... . 261, 443 Cuddon v. Morley, 7 Ha. 202 73, 74 Curling v. Flight, 2 Ph. 613 ; 17 L. J. Ch. 359 ; 12 Jur. 423 ; 12 L. T. 61 ; S. C. 6 Ha. 41 ; 17 L. J. Ch. 79 ; 12 Jur. 91 ; 10 L. T. 303 ; S. C. 5 Ha. 242 187, 442, 443, 444, 449, 458, 464, 465, 466, 467 Curtis v. Daniel, 10 East, 273 23, 26, 36, 39, 104, 440 Cutler v. Simons, 2 Mer. 103 86 Cutts v. Ward, L. R. 2 Q. B. 357 ; 36 L. J. Q. B. 161 ; 15 W. R. 445 ; 15 L. T. N. S. 614 609, 610 Dalton v. Angus, 6 App. Cas. 740 ; 44 L. T. 1ST. S. 844. See Angus v. Dalton 287, 288, 290, 292, 294, 298, 299, 300, 303, 304, 310, 311, 313, 314, 315, 316, 317, 318 Daly v. Beckett, 24 Beav. 114 ; 3 Jur. N. S. 754 ; 5 W. R. 514 47, 51, 54, 170 lviii TABLE OF CASES. PAGE Dand v. Kingscote, 6 M. & W. 174 ; 9 L. J. Ex. 279 274, 358, 359, 361, 362 367 & 369, 370, 375, 3/8 Daniel v. Grade, 6 Q. B. 145 ; 13 L. J. Q. B. 309 ; 8 Jur. 708 . 226, 255 „. Stepney, L. R. 7 Exch. 327 ; 41 L. J. Ex. 208 ; 21 W. B. 17 ; 27 L. T. N. S. 380 ; S. C. L. R. 9 Exch. 185 ; 22 W. R. 662 ..... 226 Dant v. Moore, 9 L. T. N. S. 381 13 ' 19 Darcy v. Askwith, Hob. 234 ; Hutt. 19 51, 53, 282 Dare v. Heathcote, 25 L. J. Ex. 245 3 ' 3 Dartmouth v. Spittle, 19 W. R. 444 ; 24 L. T. N. S. 67 523, 526, 527, 528, 529, 531 Darvill v. Roper, 3 Drew. 294 ; 24 L. J. Ch. 779 ; 3 W. R. 467 ; 25 L. T. 302 4, 12, 16, 17 Davies v. Games, 12 Ch. D. 813 ; 28 W. R. 16 v. Leo, 6 Ves. 11 61 Stephens, 7 C. & P. 570 373 Davis v. Howard, cited 17 Eq. 503 ; 5 Ch. D. 154 496 v . London and Blackball Ely. Co., 1 M. & Gr. 799 ; 2 Scott N. K. 74 . . 302 v. Marlborough, 2 Swanst. 108 ; 2 Wils. 130 v. Shepherd, 1 Ch. 410 : 35 L. J. Ch. 581 ; 15 L. T. N. S. 122 ; S. C. 12 L. T. N. S 538 41, 187, 200, 21 v. Treharne, 6 App. Cas. 460 ; 50 L. J. Q. B. 665 ; 29 W. R. 869 292, 295, 296, 297, 304, 305, 319, 320, 332, Dawes v. Bagnall, 23 W. E. 690 542,543 Dean v. Thwaite, 21 Beav. 621 532, 533, 543 Dearden v. Evans. 5 M. & W. 11 ; 8 L. J. Ex. 171 ; 3 Jur. 703 . . 34, 72, 73 De Bernus v. James, Set. 219 ; (Field, J., for M. R. 12 Sept. 1876) . , . 271 De Castro's Case, 2 Jur. N. S. 1203 ; 28 L. T. 141 . . . 443, 444, 466, 467 De La Warr v. Miles, 17 Ch. D. 535 ; 49 L. J. Ch. 476 ; 50 ib. 754 ; 29 W. R. 809 ; 42 L. T. N. S. 469 ; 44 ib. 487 94 Dench v. Bampton, 4 Ves. 700 74 Denison v. Holliday, 3 H. & N. 670 ; 28 L. J. Ex. 25 ; S. C. 1 II. & N. 6 26 L. J. Ex. 227 ; 28 L. T. 307 11, 205 Dennett v. Atherton, L. R. 7 Q. B. 316 ; 41 L. J. Q. B. 165 : 20 W. K. 442 210, 292 Dent v. Dent, 30 Beav. 363 ; 31 L. J. Ch. 436 ; 8 Jur. N. S. 786 ; 10 W. R. 56 Denys v. Shuckburgh, 4 Y. & C. Eq. Ex. 42 ; 5 Jur. 21 . . 110, 111, 542, 5 I De Salis v. Crossan, 1 Ball & B. 188 ; nom. De Salis v. , 2 Mol. 516 . . 51 Devonshire v. Barrow Co., 2 Q. B. D. 286 ; 46 L. J. Q. B. 96 ; ib. 435 ; 25 W. R. 60 ; ib. 469 ; 35 L. T. N. S. 474 ; 36 ib. 355 566 Dicconson, In re, 15 Ch. D. 316 ; 29 W. R. 222 128 v. Talbot, 6 Ch. 32 ; 19 W. R. 138 ; 24 L. T. N. S. 49 . 55, 193, 198 Dickenson v. Fletcher, L. R. 9 C. P. 1 ; 43 L. J. C. P. 58 ; 29 L. T. N. S. 540| 585 Dickin v. Hamer, 1 Dr. & Sm. 284 ; 29 L. J. Ch. 778 ; 2 L. T. N. S. 276 43, 48, 52, 64, 65 Dickinson v. Grand Junction Canal Co., 15 Beav. 260 ; 16 Jur. 200; 18 L. T. 258 382, 386, 387 v. Valpy, 10 B. & C. 128 ; 5 M. & Rv. 126 ; 8 L. J. (O. S.) K. B. 51 458, 461, 462 Dixon v. Astley, 1 Mer. 133 86 v. Caledonian Rly. Companies, 5 Ap. Cas. 820 ; 29 W. R. 249 ; 43 L. T. N. S. 513 8, 9, 30, 86, 311, 345, 346 v. Metropolitan Board, 7 Q. B. D. 418 ; 50 L. J. Q. B. 772 ; 30 W. R. 83 ; 45 L. T. N. S. 312 411, 412 v. White, 8 App. Cas. 833. See White v. Dixon 337 v. Wood, W. K 1882, p. 176 334 Dodd v. Holme, 1 A. & E. 493 302, 315, 318 TABLE OF CASES. Hx PAGE Doe r. Alderson, 1 M. & W. 210 ; 1 T. & Gr. 543 ; 5 L. J. Ex. 153. Smirke's Rep. of Vice v. Thomas, p. 39 . . 41, 428, 429, 430, 431, 432, 436, 523 — v. Bancks, 4 B. & Al. 401 241 — v. Collinge, 7 C. B. 939 ; IS L. J. C. P. 305 ; 13 Jur. 791 ; 13 L. T. 236 80, 176 — v. Cook, 5 Esp. 221 152 — v. Davidson, 2 M. & S. 175 37 — v. Lock, 2 A. & E. 705 ; 4 N. & M. 807 ; 4 L. J. K. B. 113 . . 11, 135, 170 — v. Pearce, 2 Peake's N. P. Cas. 242 480, 482, 483, 485, 511 — v. Powell, 8 Scott, N. R. 687 ; 7 Man. & G. 980 ; 8 Jur. 1123 . 33, 183, 251 — v. Price, 8 C. B. 894 ; 14 L. T. 329 227 — v. Wood, 2 B. & Al. 724 .. . 249, 250, 252, 253, 254, 255, 256, 334 Doherty v. Allman, 3 App. Cas. 709 ; 26 W. R. 513 ; 39 L. T. N. S. 129 ; S. C. I. R. 10 Eq. 362, 460 ; 1 L. R. Ir. 249 54, 61 Doran v. Wiltshire, 3 Swanst. 699 131 Douglas v. Scott, 8 Sess. Cas. (ser. 3), 360 216 Duberley v. Page, 2 T. R. 391 91, 151 Ducarrey v. Gill, 1 Moo. & M. 450 ; 4 C. & P. 121 123, 125 Dudden v. Guardians of Glutton Union, 1 H. & N. 627 ; 26 L. J. Ex. 146 . 386 Dudley, Re, 8 Q. B. D. 86 ; 51 L J. Q. B. 121 ; 45 L. T. N. S. 733 148, 273, 286, 290, 312, 346, 411 Dudley v. Warde, Amb. 112 57, 267 Dudley Canal Co. v. Grazebrook, 1 B. & Ad. 59 ; 8 L. J. (O. S.) K. B. 361 302, 325, 326, 327, 338, 411 Dudley's Settled Estates, 26 S. J. 359 164 Dugdale v. Robertson, 3 K. & J. 695 ; 3 Jur. N. S. 687 ; 30 L. T. 52 212, 213, 227, 295, 296, 310, 320, 321, 323, 351, 352, 353 Dunn v. Birmingham Canal Co., L. R. 8 Q. B. 42 ; 42 L. J. Q. B. 34 ; 21 W. R. 266 j 27 L. T. N. S. 683 ; S. C. L. R. 7 Q. B. 244 ; 41 L. J. Q. B. 121 ; 20 W. R. 573 ; 26 L. T. N. S. 241 . 21, 327, 329, 338, 409, 410, 411, 412, 414 Durham v. Hood, 9 Sess. Cas. (ser. 3), 474 401, 403 Durham & Sunderland Rly. Co. v. Walker, 2 Q. B. 940 ; 2 G. & Dav. 326 ; 11 L. J. Ex. 442 11, 273, 355, 361, 362, 363, 364, 367 Durham's Case, 35 Ed. 1, Rot. Pari., vol. i., p. 198, No. 46 ; cited in Liford's Case, 11 Co. 49a ; and in Jefferson v. Durham, 1 Bos. & P. 109 . . . 77 Dyer v. Dyer, 34 Beav. 504 ; 34 L. J. Ch. 513 ; 11 Jur. N". S. 721 ; 13 W. R. 732 ; 12 L. T. N. S. 442 ; 6 N. R. 79 127 Dykes v. Merry, 7 Sess. Cas. (ser. 3), 603 . . . . . . . 572 Eadon v. Jeffcock, L. R. 7 Ex. 379 ; 20 W. R. 1033 169, 238, 269, 288, 294, 295, 296, 303, 304, 305, 309, 320, 322, 323, 332 Eads v. Williams, 4 De G. M. & G. 674 ; 24 L. J. Ch. 531 ; 11 Jur. N. S. 193 ; 3 W. R. 98 ; 24 L. T. 162 194, 532 Eardley v. Granville, 3 Ch. D. 826 ; 45 L. J. Ch. 669 ; 24 W. R. 528 ; 34 L. T. N. S. 609 10, 11, 18, 33, 34, 35, 67, 68, 69, 70, 73, 74, 87, 88, 102, 108, 364, 376, 378, 379, 402, 414, 531, 533 East Botallack, &c. Co., Be, 34 Beav. 82 ; 34 L. J. Ch. 81 ; 10 Jur. N. S. 1193 ; W. R. 197 ; 11 L. T. N. S. 408 ; 5 N. R. 158 425, 448 East India Co. v. Kynaston, 3 Bli. 153 541 Easterby v. Sampson, 1 Cr. & J. 105 245, 246 Ecclesiastical Commissioners v. N. E. Ry. Co., 4 Ch. D. 845 ; 47 L. J. Ch. 20 ; 36 L. T. N. S. 174 .... 86, 530, 532, 533, 535, 537, 542, 543 Edgar v. Law, 10 Sess. Cas. (Ser. 3), 236 612 Edmonds v. Eastwood, 2 H. & N. 811 ; 27 L. J. Ex. 209 ; 6 W. R. 331 ; 30 L. T. 304 5, 226, 552, 556 lx TABLE OF CASES. PAGE Edwards v. Jolliffe, W. N. 1877, p. 120 107 v. Rees, 7 C. & P. 340 222, 225 Re, Set. 1492 (V.-C. M. 18 May, 1877) 160,163 Edwards' Case, 1 L. T. N. S. 399 443, 454, 470, 472 Egremont Burial Board v. Egremont Iron Ore Co., 14 Ch. D. 158 ; 49 L. J. Ch. 623 ; 28 W. R. 594 ; 42 L. T. N. S. 179 26 Elias v. Griffith, 8 Ch. D. 521 ; 46 L. J. Ch. 806 : 48 ib. 203 ; 26 W. R. 869 ; 38 L. T. N. S. 871 . . . . 22, 23, 46, 52, 55, 56, 62, 63, 531, 534 v. Snowdon Slate Quarries Co., 4 App. Cas. 454 ; 48 L. J. Ch. 811 ; 28 W. R. 54 ; 41 L. T. K S. 289 22, 23, 24, 46, 47, 51, 82 Elliot v. N. E. Ry. Co., 10 H. L. C. 333 ; 32 L. J. Ch. 402 ; 9 Jur. N. S. 555 ; 11 W. R. 604 ; 8 L. T. N. S. 337 ; 2 N. R. 87 ; sec North Eastern Ry. Co. v. Elliot . . . 292, 298, 311, 324, 327, 348, 350, 352, 353 v. North Staffordshire Ry. Co., W. N. 1881, p. 52; see Bidder r. North Staffordshire Rly. Co 360, 364 v. Rokehy, 7 App. Cas. 43 ; 51 L. J. Ch. 249 ; 29 W. R. 249 ; 45 L. T. N. S. 769 ; see Rokehy v. Elliot 223 Ellis v. Bromley Local Board, W. N. 1876, pp. 78, 156 ; 45 L. J. Ch. 763 ; 24 W. R. 716 ; 35 L. T. N. S. 182 106 v. Schmoeck, 5 Bing. 521 ; 3 Moo. & P. 220 ; 7 L. J. (O. S.) C. V. 231 . i" Ellway v. Davis, 16 Eq. 294 ; 43 L. J. Ch. 75 496 Elwell v. Crowther, 31 Beav. 163 ; 31 L. J. Ch. 763 ; 8 Jur. N. S. 1004 ; 10 W. R. 615 ; 6 L. T. N. S. 596 383 Elwood v. Bullock, 6 Q. B. 383 ; 13 L. J. Q. B. 330 ; 8 Jur. 1044 ... 91 Ely v. Warren, 2 Atk. 189 92,93,100,441,502 Elinor v. Barwell, 1 De G. F. & J. 530 ; 7 Jur. N. S. 788 ; 1 I.. T. N. S. 597 | S. C. 2 Giff. 410 ; 6 Jur. N. S. 1233 ; 8 W. R. 300 ; 3 L T. N. S. 170 380, 382, 383, 3S4, 3S5, 387, 541, 542 Entwistle v. Davis, 4 Eq. 272 ; 36 L. J. Ch. 825 264, 265 Erlangeru. New Sombrero, &c, Co., 3 App. Cas. 1218 ; 4S L. J. Ch. 78 j 27 W. R. 65; 39 L. T.N. S. 269; see New Sombrero PI, . Erknger 121,199,200 Ernest v. Vivian, 33 L. J. Ch. 513 ; 12 W. R. 295 ; 9 L. T. X. S. 11 Errington v. Metropolitan Rly. Co., 19 Ch. D. 559 ; 51 L. J. Ch. W. B. 663; 46 L. T. N. S. 443 . . 5, 8, 12, 20, 21, 141, 142, 1 13, 188, 208, 342, 343 Escott v. Gray, 47 L. J. C. P. 606 ; 39 L. T. N. S. 121 . . I 16, 162, 153, 156 Evans v. Mostyn, 2 C. P. D. 547 ; 47 L. J. C. P. 258 ; 36 L. T. X. S. B56 570, 599 Evelin's Case, cited 2 Freem. 55 ........ 64 Ewart v. Cochrane, 4 Macq. 117 ; 7 Jur. N. S. 925 ; 10 W. R. 3 5 L. T. X. S. 1 402 — v. Graham, 7 H. L. C. 331 ; 29 L. J. Ex. 88 ; 5 Jur. X. S. 773 ; 7 W. K. 621 ; 33 L. T. 349 ; S. C. 1 H. & N. 550 204 Falmouth v. Innys, Mosely, 87 392, 52 i Fancy v. Scott, 2 M. & Ry. 335 ; 6 L. J. K. B. 305 11 Farrant v. Lovel, 3 Atk. 723 61, 82, 84, 85 Farrow v. Vansittart, 1 R. C. 602 357, 361, 362, 86 : Fawcett v. Strickland, 2 Com. Rep. 577 151 Featherstonhaugh v. Fenwick, 17 Yes. 298 119, 139 i: Lee Moor Co., 1 Eq. 318 ; 35 L. J. Ch. 84 ; 11 Jur. N S. 994 ; 14 W. R. 97 ; 13 L. T. N. S. 460 . . . . 200 Fenn's Case, 4 De G. M. & G. 285 ; 22 L. J. Ch. 692 ; 2 \Y. R. 2S2 ; 22 L. T. 14, 311 ; S. C. 1 Sm. & G. 26 ; 20 L. T. 78 . . 443, 444, 468, 470, 472, 478 Fenton v. Trent, 9 M. & W. 203 354 Fereday v. Wightwick, 1 R. & My. 45 ; Taml. 250 . 57, 112, 114, 120, 137, 258, 262 Ferguson v, Ferguson's Trustees, 4 Sess. Cas. (ser. 4), 532 48 TABLE OF CASES. lxi PAGE Ferrand v. Wilson, 4 Ha. 344, 388 ; 15 L. J. Ch. 41 ; 9 Jur. 860 24, 46, 48, 51, 52, 56, 61, 62 Field v. Beaumont, 1 Swanst. 204 62, 540, 544 v. Lelean, 6 H. & N. 617 ; 30 L. J. Ex. 168 ; 7 Jur. K S. 918 ; 9 W. R. 387 ; 4 L. T. N. S. 121 465 Filewood v. Palmer, 5 Vin. Abr. p. 8, § 33 ; Mosely, 169 ; Melm. MSS. E. 53 36, 62, 76 Finch v. Birmingham Canal Navigation, 5 B. & C. 820 ; 8 D. & By. 680 ; 5 L. J. (O. S.) K. B. 17 390 v. Great Western Ry. Co., 5 Exch. D. 254 ; 28 W. R. 229 ; 41 L. T. N. S. 731 374 Firmstone r. Wheeley, 2 D. & L. 203 ; 13 L. J. Ex. 361 ... 406, 414 Fisher v. Lee, 12 A. & E. 622 ; 10 L. J. Q. B. 1 19 Fitch v. Rawling, 2 H. Bl. 393 91 Flamang's Case, 7 Ves. 308 ; S. C. cited Anon, in Mitchell v. Dors, 6 Ves. 147 51, 57, 61, 539, 540 Fleeming v. Baird, 9 Sess. Cas. (ser. 3), 730 244 v. Howden, 6 Sess. Cas. (ser. 3), 782 206, 526 Fleming v. Carlisle, 1 L. C. 786 64 Fletcher v. Great Western Ry. Co., 4 H. & N. 242 ; 28 L. J. Ex. 147 ; sec Great Western Ry. Co. v. Fletcher 8, 329, 340 v. Rylands, L. R. 1 Exch. 265 ; 4 H. & C. 263 ; 35 L. J. Ex. 154 ; 12 Jur. N. S. 603 ; 14 W. R. 799 ; 14 L. T. N. S. 523 ; S. C. 3 H. & C. 774 ; 34 L. J. Ex. 177 ; 11 Jur. K S. 714 ; 13 W. R. 992 ; 13 L. T. N. S. 121 ; see Rylands v. Fletcher 302, 401, 403, 404, 409, 410, 412, 413 v. Smith, 2 App. Cas. 7S1 ; S. C. nom. Smith v. Musgrave, 47 L. J. Q. B. 4 ; 26 W. R. 83 ; 37 L. T. N. S. 367 ; sec Smith v. Fletcher 405, 406, 408, 410, 412, 413, 414 Flint v. Brandon, 8 Yes. 159 198, 238 Foley v. Addenbrooke, 13 M. & W. 174 ; 14 L. J. Ex. 169 . . . 221, 229, 246 v. Fletcher, 3 H. & N. 779 ; 28 L. J. Ex. 100 ; 5 Jur. N. S. 342 ; 7 W. R. 141 ; 33 L. T. 11 554, 556 Folkard v. Hemmett, 5 T. R. 417, n. (a) 102 Forder r. Handyside, 1 Ex. D. 233 ; 45 L. J. Ex. 809 ; 24 W. R. 764 ; 35 L. T. N. S. 62 555 Forster v. Hale, 5 Ves. 308 184 Fothergill v. Phillips, 6 Ch. 770 184, 193, 194, 535 v. Rowland, 17 Eq. 132 ; 43 L. J. Ch. 252 ; 22 W. R. 42 ; 29 L. T. N. S. 414 198 Fox v. Frith, 10 M. & W. 131 ; 11 L. J. Ex. 336 458 - v. Mackreth, 2 B. C. C. 400 ; 2 Cox 158, 320 194 Frank Mills Co., In re, 23 Ch. D. 55 ; 52 L. J. Ch. 457 ; 31 W. R. 440 444, 445, 470, 471, 478 Frecheville v. Souden, 48 L. T. N. S. 612 585, 587 Friar v. Grey, 15 Q. B. 891 ; 17 L. J. Q. B. 301 ; 12 Jur. 913 ; 12 L. T. 42 ; S. C. 5 Exch. 584 ; 19 L. J. Ex. 368 ; 15 Jur. 814 ; 16 L. T. 82 . . . 243 Galbraith v. Eglinton Iron Co., 7 Sess. Cas. (ser. 3), 167 . . . 333, 358 Gallimore, Ex parte, 2 Rose, 424 259, 260 Garden, &c, Co. v. M 'Lister, 1 App. Cas. 39 ; 24 W. R. 744 ; 33 L. T. N. S. 408 121, 454 Gardner, Ex parte, 1 Rose, 377 259 Garth v. Cotton, 1 Lead. Cas. 751 . . . . 56, 57, 58, 59, 60, 61, 530, 539 Gateward's Case, 6 Co. 59 b. ; Cro. Jac. 152 90, 91, 94, 97 l x jj TABLE OF CASES. PAGE 200 513 14 W. R- 62 , 13 L. 1. JN. E>. /* 4oi> 402> 429> 434; 436) 47g 226 Geasti?. Barker, 2 B. C. C. 61 . • • • • "• ' " T i. n*T . oo T T Pli fiS • 5 Jur. ^. S. 12bo 8 H . K. »( , Gentw. Harrison, Joh. 51/ ; 29 L. J. on. t>» , o 1 L. T. N. S. 128 . ' . ' ' 76 Geo v. Cotber, Sid. 106 . • ■ • ' " ' ' - 1fl . .-> t kwm: g "• * G ".' 24 K a --•-•-• - 298 •••■'' ... „ Guild 9 Q. B.'d. 59 ; 51 L. J. Q. B. 313 ; 30 W. R. 591 ; 46 L. T. N. S 248 ; S. C. 8 Q. B. D. 296 ; 51 L. J. Q. B. 228 ; 30 W. R. 407 ; 46 j I ji c 135 ....•••■'" Gibson v. Smith, 2 Atk. 182 ; Barnard. Chanc. Rep. 493 . . • • • 61, 540 Giddy v. Webb, 3 App. Cas. 908 ; 47 L. J. P. C. 71 ; 38 L. T. N. S. 822 . . 522 Gilbert v. Tomison, 4 D. & R. 222 . . • ' " " ,. ' , T ' T GiU v Dickinson 5 Q. B. D. 159 ; 49 I, J. Q. B. 262 ; 28 W. R. 415 ; 42 I, T. '; c ,* A • 304, 307, 308, 309, 340 N. S. 510 • . Gillespie v. Russel, 9 Sess. Cas. (ser. 3), H. L. 130 . . . • • • - "•' Gillett v. Thornton, 19 Eq. 599 ; 44 L. J. Ch. 398 ; 23 W. R. 437 . . . 248 Glasbrook v. Richardson, 23 W. R. 51 ;'" \^\ Glasgow r. Hurlet Alum Co., 3 H. I.. C. 25 SS Glass v. Haig, 4 Sess. Cas. (ser. 4), 875 Goodman v. Saltash, 7 App. Cas. 633 ; 52 L J. Q. B. 193 ; 31 W. B. 293 ; 48 L T N S 239 ; see Saltash v. Goodman »i» y4 , yo » yo Goodson v. Richardson, 9 Ch. 221 ; 43 L. J. Ch. 790 ; 22 W. R. 337 ; 30 L. T. N. S.-142 Goodtitle v. Alker, 1 Burr. 133 ^ lf Goodwyn v. Spray, 2 Dick. 667 Goold v. Great Western Deep Coal Co., 2 De G. J. & S. 600 ; 11 Jur. N. S. 865 ; 13 W R 1111 • 13 L. T. N. S. 109 ; S. C. 13 W. R. 712 ; 12 L. T. N. S. 842 ' ' • • 269, 274, 276, 372, 406, 481, 484, 498 Gowan *. Christie,' L. R. 2 Sc. & D. 273 . . . 12, 169, 189, L96, 215, 216, 2.:; Grafton v. Hilliard, Amb. 160, n. ; cited 18 Ves. 219, and 4 De G. & Sm. 326 . 2/1 Graham v. Ewart, see Ewart v. Graham 204 Grand Junction Canal v. Shugar, 6 Ch. 483 ; 19 W. R. 569 ; 24 L. T. N. S. 402 380, 382, 386, 388, 389 Grant v. Gunner, 1 Taunt. 435 151 Graves v. Cook, 2 Jur. N. S. 475 455 Gray's Settled Estates, In re, W. N. 1875, p. 106 129 Great Laxey Mining Co. v. Clague, 4 App. Cas. 115 ; 27 W. R. 417 . . 108, 285 Great Western Rly. Co. v. Bennett, L. R. 2 H. L. 27 ; 36 L. J. Q. B. 133 ; 15 W. R. 647 ; 16 L. T. N. S. 186 . 8, 9, 30, 142, 311, 329, 338, 339, 340, 348 v. Fletcher, 5H.&N. 689 ; 29 L. J. Ex. 253 ; 6 Jur. N. S. 961 ; 8 W. R. 501 ; 2 L. T. N. S. 803 ; see Fletcher v. Great Western Ry. Co. . . 8, 329, 330 v. Rous, L. R. 4 H. L. 650 ; 39 L. J. Ch. 553 ; 19 W. R. 169 ; 23 L. T. N. S. 360 . . . - 224, 240 TABLE OF CASES. lxiii PAGE Great Western Rly. Co. v. Smith, 2 Ch. D. 235 ; 45 L. J. Ch. 235 ; 24 W. R. 443 ; 34 L. T. N. S. 267 ; sec Smith v. Great Western Rly. Co. . . . 142, 343, 345, 352, 354 Greathead v. Morley, 3 M. & Gr. 139 ; 10 L. J. C. P. 246 204 . 393, 401 195 . . 216 . 34, 74 320 ; 620 ; 52, 61, 539 489; 243 Greatrex v. Hayward, 8 Exch. 291 ; 22 L. J. Ex. 137 . Green v. Sevin, 13 Ch. D. 589 ; 49 L. J. Ch. 166 ; 41 L. T. N. S. 724 v. Sparrow, 3 Swanst. 408, n Greenwich Hospital v. Blackett, 12 Jur. 151 Gresley v. Monsley, 3 De G. F. & J. 433 ; 31 L. J. Ch. 537 ; 8 Jur. N. S. 10 W. R. 222 ; 6 L. T. N. S. 86 ; S. C. 4 De G. & J. 78 ; 28 L. J. Ch 5 Jur. N. S. 583 ; 7 W. R. 427 ; 33 L. T. 154 Grey v. Friar, 15 Q. B. 901 ; 19 L. J. Q. B. 393 ; 14 Jur. 1105 ; 14 L. T, S. C. 4 H. L. Cas. 565 ; 18 Jur. 1036 ; 23 L. T. 334 . v. Northumberland, 13 Ves. 236 ; S. C. 17 Ves. 281 . 34, 62, 74, 75, 87, 540 Grimes v. Grimes, 11 W. R. 943 ; 8 L. T. N. S. 758 110 Griffiths v. Dudley, 9 Q. B. D. 357 ; 51 L. J. Q. B. 543 ; 30 W. R. 797 ; 47 L. T. N. S. 10 613 v. Gidlow, 3 H. & N. 648 ; 27 L. J. Ex. 404 ; 31 L. T. 300 . 612, 613 v. Rigby, 1 H. & N. 237 ; 25 L. J. Exch. 284 243 Grimstead v. Marlowe, 4 T. R. 717 91 94 Guest v. East Dean, L. R. 7 Q. B. 334 ; 41 L. J. M. C. 129 ; 20 W. R. 332 ; 26 L. T. N. S. 422 27, 266, 558 Guild's Trustees v. Guild, 10 Sess. Cas. (ser. 3), 911 48 Guthrie v. Shearer, 1 Sess. Cas.. (ser. 4), 181 216 Haigh v. Jaggar, (1) 16 M. & W. 525 ; 17 L. J. Ex. 110 ; S. C. 3 Exch. 54 ; 18 L. J. Ex. 125 ; 12 L. T. 352 . . . 249, 250, 256, 257, 539 v. (2) 2 Coll. 231 539, 540 Haines v. Roberts, 7 E. & B. 625 ; see Roberts v. Haines . 292, 294, 298, 320, 321, 332, 351 Hall v. Byron, 4 Ch. D. 667 ; 46 L. J. Ch. 297 ; 25 W. R. 317 ; 36 L. T. N. S. 36 7 76, 77, 103, 151, 283, 305 •. Hopwood, 49 L. J. M. C. 17 ; 41 L. T. N. S. 797 .... 585 v. Johnson, 3 H. & C. 589 ; 34 L. J. Ex. 222 ; 11 Jur. N. S. 180 ; 13 W. R. 411 ; 11 L. T. N. S. 779 ; 5 N. R. 447 612 v. Lund, 1 H. & C. 676 ; 32 L. J. Ex. 113 ; 9 Jur. N. S. 205 ; 11 W. R. 271 ; 7 L. T. K S. 692 ; 1 N. R. 287 396 v. Vivian, Smirke's Rep. of Vice v. Thomas, p. 37 417 Halliday's Estates, In re, 12 Eq. 199 ; 40 L. J. Ch. 687 ; 19 W. R. 966 . . 130 Hamer v. Knowles, 6 H. & N. 454 ; 30 L. J. Ex. 102 ; 9 W. R. 615 ; 3 L. T. N - S. 746 . . . 292, 301, 302, 351 Hamilton v. Dunsford, 6 Ir. Ch. 412 246 v. Graham, (1) L. R. 2 Sc. & Div. 166 ; 6 Sess. Cas. (ser. 3), 965 ; 7 &• 976 . . 10, 11, 18, 27, 67, 68, 69, 355, 361, 367 v , (2) 10 Sc. L. R. 61 207 Hammersmith & City Rly. Co. v. Brand, L. R. 4 H. L. 171 ; 38 L. J. Q. B. 265 ; 18 W. R. 12 ; 21 L. T. N. S. 238 ; S. C. nom. Brand v. Hammersmith & City Rly. Co., L. R. 2 Q. B. 223 ; 7 B. & S. 1 ; 36 L. J. Q. B. 139 ; 15 W R. 437 ; 16 L. T. N. S. 101 ; S. C. L. R. 1 Q. B. 130 ; 35 L. J. Q. B. 53 ; 12 Jur. N. S. 336 ; 14 W. R. 129 ; 13 L. T. N. S. 501 . . . . 324 Hammond v. Hall, 10 Sim. 551 ; 4 Jur. 694 388 Hankey, Ex parte, Mont. & M. 247 254 257 Hanmer v. Chance, 4 De G. J. & S. 626 ; 34 L. J. Ch. 413 ; 11 Jur. K S. 397 ; 13 W. R. 556 ; 11 L. T. N. S. 667 ; 12 ib. 163 ; 6 N. R. 4 73, 90, 98,' 99, 100 Ixiv TABLE OF CASES. PAGE Hanson v. Boothiuan, 13 East, 22 21 ' Harcourt v. White, 28 Beav. 303 ; 30 L. J. Ch. 681 ; 6 Jur. N. S. 1087 ; S W. R. 715 ; 3 L. T. N. S. 4 57 > 62 > 63 Harebottle v. Placock, Cro. Jac. 21 523 Harker v. Birkbeck, 3 Burr. 1556 ; 1 W. Black. 482 . . . 252, 253, 257, 533 Harris v. Coppinger, 1 Hog. 478 53 v. Ekins, 20 W. R. 999 ; 26 L. T. N. S. 827 54 v. James, 45 L. J. Q. B. 545 ; 35 L. T. N. S. 240 . . . . 273, 351 v Rydincr 5 M. & W. 60 ; 8 L. J. Ex. 181 26, 27, 202, 269, 273, 287, 288, ° 291, 294, 304, 320, 331, 333, 336, 351 Harrison, Ex parte, 1 B. C. C. 173 259, 261 v. Ames, 15 L. T. 321 ... 251 v . Heathorn, 6 M. & Gr. 81 ; 6 Scott N. R. 735 ; 12 L. J. C. P. 282 . 125 Harrop r. Hirst, (1) L. R. 4 Exch. 43 ; 38 L. J. Ex. 1 ; 17 AY. R. 164 ; 19 L. T. N. S. 426 386 v. (2) Set. 213 (V.-C. B. 13 Mar. 1872) 383 Hart v. Clarke, 6 De G. M. & G. 232 ; 24 L. J. Ch. 137 ; 3 W. R. 147 ; 24 L. T. 185 ; S. C. 19 Beav. 349 ; 2 W. R. 511 ... 57, 121, 139, 140, 453 Harvey v. Clough, 8 L. T. N. S. 324 ; 2 N. R. 204 . . . . 443, 456, 459 . v. Gilbard, W. W. & H. 552 ; 3 Jur. 316 427 v. Kay, 9 B. & C. 356 ; 7 L. J. (O. S.) K. B. 167 458 Harvie v. Stewart, 9 Sess. Cas. (ser. 3), 129 206 Hatherton v. Bradburne, 13 Sim. 599 ; 13 L. J. Ch. 171 ; 7 Jur. 1100 . . 265 Haven Gold Mining Co., In re, 20 Ch. D. 151 ; 51 L. J. Ch. 242; 30 W. R. 389 ; 46 L. T. N. S. 322 251, 252 Hawardv. Bankes, 2 Burr. 1114 401,414 Hawken v. Bourne, 8 M. & Y\~. 703 ; 10 L. J. Ex. 361 . . . . 443, 456, 457 Hawkins' Case, 2 K. & J. 253 ; 25 L. J. Ch. 221 ; 2 Jur. N. S. 85 ; 4 W. R. 224 ; 27 L. T. 14 442, 445, 456, 457, 478 Hawtayne v. Bourne, 7 M. & W. 595 ; 10 L. J. Ex. 224 ; 5 Jur. 118 . . 460 Hayford v. Criddle, 22 Beav. 477 188, 189 Hayter v. Tucker, 4 K. & J. 243 ; 4 Jur. N. S. 257 ; 6 W. R. 243 185, 264, 443, 464, 475 Hayward v. Cunnington 1 Lev. 231 ; 2 Keb. 290, 311 ; 1 Sid. 354 . . 94, 95 Haywood v. Cope, 25 Beav. 140 ; 27 L. J. Ch. 468 ; 4 Jur. N. S. 227 ; 6 W. R. 304 ; 31 L. T. 48 . . . . 186, 190, 191, 193, 195, 199, 215 v. Richards, Set. 219 (V.-C. W. 4 Aug. 1873) 271 Heane v. Rogers, 9 B. & C. 577 ; 4 M. k Ry. 486 ; 7 L. J. (O. S.) K. B. 285 . 259 Heath v. Fisher, 38 L. J. Ch. 14 ; 17 W. R. 69 ; 19 L. T. N. S. 805 . . . 140 Hedley v. Fenwick, 3 H. & C. 349 361, 364 Henderson v. Eason, 17 Q. B. 701 ; 21 L. J. Q. B. 82 ; 16 Jur. 518 ; 18 L. T. 142 112, 114, 119 Herring v. St. Paul's, 3 Swanst. 492 77, 78 Hewlins v. Shippam, 5 B. & C. 221 ; 7 D. & Ry. 783 ; 4 L. J. (O. S.) K. B. 241 355, 356 Hext v. Gill, 7 Ch. 699 ; 41 L. J. Ch. 293, 761 ; 20 W. R. 520, 957 ; 26 L. T. N. S. 502 ; 27 ib. 291 2, 12, 13, 14, 15, 17, 34, 35, 73, 74, 283, 284, 294, 320, 335 Heydon v. Smith, 13 Co. 67 ; Godb. 172 73 Hichens v. Congreve, 4 Russ. 562 ; 6 L. J. (O. S.) Ch. 167 451 Hickman v. Haynes, L. R. 10 C. P. 598 ; 44 L. J. C. P. 358 ; 23 W. R. 872 ; 32 L. T. N. S. 873 185 Higginbotham v. Hawkins, 7 Ch. 676 ; 41 L. J. Ch. 828 ; 20 W. R. 955 ; 27 L. T. N. S. 328 56, 57, 59, 62 Higgins v. Samels, 2 J. & H. 460 ; 7 L. T. N. S. 240 . . . . 193, 199 TABLE OF CASES. lx.V PAGE Higginson v. Hapley, 19 L. T. N. S. 690 594 Higham v. Wright, 2 C. P. D. 397 ; 46 L. J. M. C. 223 ; 37 L. T. N. S. 187 . 595 Hill v. Hill, 6 Sim. 136 168 Hills v. Parker, 7 Jur. N. S. 833 ; 4 L. T. N. S. 746 185, 263 Hilton v. Granville, (1) 1 Cr. & Ph. 283 ; 10 L. J. Ch. 398 ; 6 Jur. 475 62, 74, 102, 103, 307, 352 „. (2) 5 Q. B. 701 102, 305, 306, 308, 351 v. Whitehead, 12 Q. B. 734 299 v. Woods, 4 Eq. 432 ; 36 L. J. Ch. 941 ; 15 W. R. 1105 ; 16 L. T. N. S. 736 378, 379, 414, 532, 534, 535, 536, 540, 542 Hippesley v. Spencer, 5 Madd. 422 82 Hippisley v. Bath & Wells, cited in Elton on Commons, p. 112 . . . 521 Hoby v. Hoby, 1 Vera. 218 ; 1 Eq. Ca. Abr. 220, pi. 9 ; 2 Ch. Ca. 160 . . 262 Hodgkinson v. Crowe, 10 Ch. 622 ; 44 L. J. Ch. 680 ; 23 W. R. 885 ; 33 L. T. N. S. 388 ; S. C. 19 Eq. 591 ; 44 L. J. Ch. 238 ; 23 W. R. 406 ; 32 L. T. N. S. 144 ; 33 ib. 122 . . 196, 197, 225, 236 v. Ennor, 4 B. & S. 229 ; 32 L. J. Q. B. 231 ; 9 Jur. N. S. 1152 ; 11 W. R. 775 ; 8 L. T. N. S. 451 ; 2 N. R. 272 . 396, 398, 399 — v. Fletcher, 3 Dougl. 31 26, 27, 527 Hodgson v. Field, 7 East, 613 25, 274, 276, 282, 294, 402 v. Moulson, 18 C. B. N. S. 332 .... 234, 235, 245, 296, 333 Holdeni>. Hargreaves, Set. 204, 205 (V.-C. B. 3 Aug. 1876) ... 87, 379 v. Weekes, 1 J. & H. 278 ; 30 L. J. Ch. 35 ; 6 Jur. N. S. 1288 ; 9 W. R. 94 ; 3 L. T. K S. 437 78, 80, 81, 82 Holdsworth v. Brand's Trustees, 4 Sess. Cas. (ser. 4), 875 ; S. C. 2 Sess. Cas. (ser. 4), 683 242 Hole v. Barlow, 4 C. B. N. S. 334 ; 27 L. J. C. P. 207 ; 4 Jur. N. S. 1019 ; 6 W. R. 619 ; 31 L. T. 134 270 v. Thomas, 7 Ves. 589 HI Holker v. Poritt, L. R. 10 Exch. 59 ; 44 L. J. Ex. 52 ; 23 W. R. 400 ; 33 L. T. N. S. 125 ; S. C. L. R. 8 Exch. 107 ; 42 L. J. Ex. S5 ; 21 W. R. 414 381, 384 Hollyman v. Noonan, 1 App. Cas. 595 ; 45 L. J. P. C. 62. . . . 522, 533 Holmes v. Bellingham, 7 C. B. N. S. 329 ; 29 L. J. C. P. 132 ; 6 Jur. N. S. 534 ; 33 L. T. 239 28 v. Powell, 8 De G. M. & G. 572 189 Honeywell, &c. Co. v. Marland, W. N. 1875, p. 46 283 Honywood v. Honywood, 18 Eq. 306 ; 43 L. J. Ch. 652 ; 22 W. R. 749 ; 30 L. T. N. S. 671 54, 59, 64, 539 Hood v. Easton, 2 Giff. 692 ; 2 Jur. N. S. 729, 917 ; 4 W. R. 575, 786 ; 27 L. T. 295 . . -. . .84, 85, 142, 144, 530, 531, 532, 534, 536, 542, 543 Hooper v. Bourne, 5 App. Cas. 1 ; 49 L. J. Q. B. 370 ; 28 W. R. 493 ; 42 L. T. N. S. 97 ; S. C. 3 Q. B. D. 258 ; 47 L. J. Q. B. 437 ; 26 W. R. 295 ; 37 L. T. N. S. 594 ; S. C. 2 Q. B. D. 339 ; 46 L. J. Q. B. 509 ; 25 W. R. 672 ; 37 L. T. N. S. 97 8 ' Hopkins v. Robinson, 2 Lev. 2 ; 2 Saund. 324 ; 1 Mod. 74 36 Horton v. Sayer, 4 H. & N. 643 ; 29 L. J. Ex. 28 ; 5 Jur. N. S. 989 ; 7 W. R. 735 ; 33 L. T. 287 248 Hoskins v. Featherston, 2 B. C. C. 552 79 81, 82 v. Robbins, 1 Vent. 123, 163 ; 2 Keb. 757, 842 ; Pollexfen, 13 . . 36 Hounsell v. Smyth, 7 C. B. N. S. 731 ; 29 L. J. C. P. 203 ; 6 Jur. N. S. 897 ; 8 W. R. 277 ; 1 L. T. N. S. 440 270 Howe v. Dartmouth, 7 Ves. 137 49 Howell v. King, 1 Mod. 190 362, 37S Howells r. Landore, &c. Co., L. R. 10 Q. B. 62 ; 44 L. J. Q. B. 25 ; 23 W. R. 335 ; 32 L. T. N. S. 19 612 lxvi TABLE OF CASES. PAGH Howells v. Wynne, 15 C. B. N. S. 3 ; 32 L. J. M. C. 241 ; 9 Jur. N. S. 1041 ; 11 W. R. 807 ; 8 L. T. N. S. 577 595 Howley v. Jebb, 8 Ir. C. L. R. 435 51 Hoyle v. Coupe, 9 M. & W. 450 ; 11 L. J. Ex. 258 98 Huddersfield and Jacomb, In re, 17 Eq. 476 ; 10 Ch. 92 ; 43 L. J. Ch. 748 ; 44 ib. 96 ; 30 L. T. X. S. 78 ; 31 ib. 466 143, 377 Hughes v. Chester & Holyhead Rly. Co., 3 De G. F. & J. 352 ; 31 L. J. Ch. 97 ; 8 Jur. N. S. 221 ; 9 W. R. 760 ; 7 L. T. N. S. 197 ; sec Chester & Holyhead Rly. Co. v. Hughes 361 v. Williams, 12 Ves. 493 84, 85 Humby's Case, 28 L. J. Ch. 875 ; 5 Jur. N. S. 215 ; 7 W. R. 335 ; 33 L. T. 7 442, 466 Humphreys v. Harrison, 1 J. & W. 581 82 Humphries v. Brogden, 12 Q. B. 739 ; 20 L. J. Q. B. 10 ; 15 Jur. 124 ; 16 L. T. 457 . 20, 27, 286, 288, 290, 291, 292, 294, 295, 299, 304, 315, 351 v. Cousins, 2 C. P. D. 239 409, 410 Hunt v. Peake, Joh. 705 ; 29 L. J. Ch. 785 ; 6 Jur. N. S. 1071 2S6, 287, 292, 294, 298, 301, 315, 351, 352, 353, 532, 533, 537, 540 Hunter v. Gibbons, 1 H. & N. 459 ; 26 L. J. Ex. 1 ; 2 Jur. X. S. 1249 ; 5 W. R. 91 ; 28 L. T. 290 534, 542, 543 Huntington v. Coal Consumers* Association, Set. 421, 422 (V.-C. M. 9 March, 1876) 210 Huntley v. Russell, 13 Q. B. 572 ; 18 L. J. Q. B. 239 ; 13 Jur. 837 ; 13 L. T. 526 24, 46, 79, 81 Hurdman v. North Eastern Rly. Co., 3 C. P. D. 168 ; 47 L. J. C. P. 368 ; 26 W. R. 489 ; 38 L. T. N. S. 339 388, 401, 404, 405, 408, 409 Hutchinson's Trusts, In re, 14 W. R. 473 ; 12 Jur. N. S. 244 ; 14 L. T. N. S. 129 163 Huxham v. Llewellyn, 21 W. R. 570 ; 2S L. T. X. S. 577 194 Hybart v. Evens, 4 C. B. X. S. 215 ; 27 L. J. C. P. 120 ; 4 Jur. N. S. 265 ; 6 W. R. 364 ; 30 L. T. 320 453 v. Parker, 4 C. B. N. S. 209 ; 27 L. J. C. P. 120 ; 4 Jur. N. S. 265 ; 6 W. R. 364 ; 30 L. T. 320 452, 453 Hyde v. Thornborough, 2 C. & K. 250 298, 315 Incledon v. Purges, Carth. 65 ; 2 Salk. 636 ; Holt, 342 94 Ingram v. Barnes, 7 E. & B. 115 ; 26 L. J. Q. B. 319 ; 5 W. R. 726 ; 29 L. T. 297 ; S. C. 26 L. J. Q. B. 82 ; 3 Jur. X. S. 156 ; 5 W. R. 232 ; 28 L. T. 246 609 Insole v. James, 1 H. & X. 243 ; 4 W. R. 680 ; 27 L. T. 223 . . . 384, 385 Iveson v. Moore, 1 Ld. Raym. 486 ; 1 Salk. 15 ; 1 Com. 58 ; Comb. 480 . . 377 Ivimey v. Stocker, 1 Ch. 396 ; 35 L. J. Ch. 467 ; 12 Jur. X. S. 419 ; 14 W. R. 743 ; 14 L. T. X. S. 427 ; S. C. 2 Dr. & Sm. 537 ; 34 L. J. Ch. 633 ; 11 Jur. X. S. 775 ; 13 W. R. 828 ; 12 L. T. X. S. 521 ; 6 X. R. 216 3, 391, 394, 395, 429, 430, 432, 434, 435, 436 Jack v. Creed, 2 Hud. & Bro. 128 46, 53 Jacobs v. Seward, L. R. 5 H. L. 464 ; 41 L, J. C. P. 221 ; 27 L. T. X. S. 1S5 110, 111 Jackson v. Stacey, Holt's X. P. C. 455 361, 373 Jackson's Case, 21 L. T. X. S. 67 ; nom. re The Wheal Ludcott, &c, Co., 17 W. R 745 453 James v. Cochrane, 7 Exch. 170 ; S ib. 556 ; 22 L. J. Ex. 201 ; 1 W. R. 232 ; 20 L. T. 310 229, 232, 233, 234, 238, 362, 365 v. Phelps, 3 Per. & D. 231 ; 9 L. J. Q. B. 106 548 TABLE OF CASES. lxvii James v. The Queen, 5 Ch. D. 153 ; 46 L. J. Ch. 516 ; 25 W. R. 615 ; 36 L. T. N. S. 903 ; S. C. 24 W. R. 944 ; S. C. 17 Eq. 502 ; 43 L. J. Ch. 754 ; 23 W. R. 466 ; 30 L. T. N. S. 84 . . . 480, 483, 493, 495, 496 Jamieson v. Harvey, W. N. 1876, p. 277 528 9, 30 85 77, 78 v. North British Rly. Co., 6 Sc. L. R. 188 . Jeanes v. Hutchins, Set. 1069 (V.-C. 23 Feb. 1824) . Jefferson v. Durham, 1 Bos. & P. 105 .... Jefferys v. Fairs, 4 Ch. D. 448 ; 46 L. J. Ch. 113 ; 25 W. R. 227 ; 36 L. T. N. S. 10 190, 216 v. Smith, (1), 1 J. & W. 298 . 56, 57, 111, 113, 115, 116, 192, 226, 258, 532, 540 v. (2) 3 Russ. 158 137 Jeffries v. Williams, 5 Exch. 792 ; 20 L. J. Ex. 14 ; 16 L. T. 196 . . . 298, 299 Jegon v. Vivian (1), 6 Ch. 742 ; 40 L. J. Ch. 389 ; 19 W. R. 365 70, 215, 216, 218, 220, 231, 232, 233, 236, 237, 239, 240, 245, 246, 364, 378, 402, 403, 405, 414, 532, 533, 534, 535, 536, 537 v. (2), L. R. 2 C. P. 422 ; 36 L. J. C. P. 145 ; 15 W. R. 457 ; 16 L. T. N. S. 236 ; S. C. L. R. 1 C. P. 9 ; 1 Har. & Ruth. 113 ; 35 L. J. C. P. 73 ; 12 Jur. N. S. 184 ; 14 W. R. 227 ; 13 L. T. N. S. 769 ; see Vivian v. Jegon 169, 171, 172, 215 Jenkins v. Bushby, 35 L. J. Ch. 400 ; 12 Jur. N. S. 558; 14 W. R. 531 ; 14 L. T. N. S. 431 207, 524 Jennings v. Broughton, 5 De G. M. & G. 126; 23 L. J. Ch. 399 ; S. C. 17 Beav. 234 ; 22 L. J. Ch. 585 ; 17 Jur. 905 ; 1 W. R. 441 . . . 199, 200, 442, 446 Jervis v. Bruton, 2 Vern. 251 ; 1 Eq. Ca. Abr. 87, pi. 8 45 v. Tomkinson, 1 H. & X. 195 ; 26 L. J. Ex. 41 ; 4 W. R. 683 215, 216, 220, 229, 234, 244 Jervoise v. Clarke, Madd. & G. 96 16S Jesus College v. Bloome, Amb. 54 ; 3 Atk. 262 54, 56, 57, 226 Job v. Potton, 20 Eq. 84 ; 44 L. J. Ch. 262 ; 23 W. R. 5S8 ; 32 L. T. N. S. 110 110, 111 112, 534, 535, 536 Johnson r. Barnes, L. R. 8 C. P. 527 ; 42 L. J. C. P. 259 ; 29 L. T. X. S. 65 ; S. C. L. R. 7 C. P. 592 ; 41 L. J. C. P. 250 ; 27 L. T. N. S. 152 . 95 v. Goslett, 3 C. B. N. S. 569 ; 27 L. J. C. P. 122 ; 4 Jur. N. S. 50 ; 6 W. R. 127 ; 31 L. T. 35 ; S. C. IS C. B. 728 ; 25 L. J. C. P. 274 ; 4 W. R. 655 443, 445, 478 v. Perens ; sec Perens v. Johnson. v. Wyard, 2 Lutw. 1344 91 Joicey v. Dickinson, 45 L. T. N. S. 643 530, 533, 534, 535, 536 Jones v. Bird, 5 B. & Al. 837 ; 1 D. & Ry. 497 303 v. Cwmorthen Slate Co., 5 Ex. D. 93 ; 49 L. J. Ex. 110 ; 28 V T . R. 237 ; 41 L. T. N. S. 575 ; S. C. 4 Ex. D. 97 ; 48 L. J. Ex. 486 ; 27 W. R. 431 ; 40 L. T. N. S. 461 . v. Gooday, 8 M. & W. 146 ; 10 L. J. Ex. 275 v. Reynolds, (1), 7 C. & P. 335 v. (2), 1 Q. B. 506 ; 10 L. J. Q. B. 193 w . (3), 4 A. & E.-S05 ; 6 N. & M. 441 v. Shears, 4 A. & E. 832 ;6N.4 M. 42S ; 5 L. J. K. B. 153 & P. 346 Jowettf. Spencer, 1 Exch. 647 ; 17 L. J. Ex. 367 ; S. C. 15 L. J. Ex. 347 . . . 209, 219 Kay v. Johnston, 21 Beav. 536 112, 11 4 : 119, 120 Kent v. Astley, L. R. 5 Q. B. 19 ; 39 L. J. M. C. 3 ; 18 W. R. 185 ; 21 L. T. K S. 425 260, 607 Keppell v. Bailey, 2 My. & K. 517 198, 199 * 2 . . . 3, 5, 552 534 215, 249, 252 183 249 . 153 ; S. C. 7 C. . 218, 244 15 M. & W. 662 : lxviii TABLE OF CASES. PAGE Kerr v. Pawson, 25 Beav. 394 ; 27 L. J. Ch. 594 ; 4 Jur. N. S. 425 ; 6 W. R. 447 ; 31 L. T, 224 149, 150, 182, 189 Keyse v. Powell, 2E.&B. 132 ; 22 L. J. Q. B. 305 ; 17 Jur. 1052 ; 21 L. T. 126 26, 27, 32, 33, 34, 52, 70, 202, 529, 533 Kilbricken Case, cited in Tapping, Readwin Prize Essay, p. 7 . . . • 442 King v. Smith, 2 Ha. 239 ; 7 Jur. 694 82 King's Case, 6 Ch. 196 ; 40 L. J. Ch. 361 ; 19 W. R. 549 ; 24 L. T. N. S. 599 457, 458, 469 Kinsman v. Jackson, 28 W. R. 337, 601 ; 42 L. T. N. S. 80, 558 . . 219, 220 Kittow v. Liskeard, L. R. 10 Q. B. 7 ; 44 L. J. M. C. 23 ; 23 W. R. 72 ; 31 L. T. N. S. 601 250, 251, 256, 266, 443, 444, 446, 448, 449, 452, 463, 464, 466, 470, 558, 559, 563, 564 Knight v. Mosely, Amb. 176 77,79,81 Knowles v. Dickinson, 2 E. & E. 705 ; 29 L. J. M. C. 135 ; 6 Jur. N. S. 678 ; 8 W. R. 411 ; 2 L. T. N. S. 174 589 — v. McAdam, 3 Ex. D. 23 ; 47 L. J. Ex. 139 ; 26 W. R. 114 ; 37 L. T. N. S. 795 553, 555 Kynaston v. East India Co., 3 Swanst. 248 ; see East India Co. v. Kynaston . 541 Lade v. Shepherd, 2 Str. 1004 28 Laing v. Whaley, 3 H. & N. 675 ; 27 L. J. Ex. 422 ; 4 Jur. N. S. 930 ; 31 L. T. 368 ; see Whaley v. Laing 390, 392, 399 Lamb v. Walker, 3 Q. B. D. 389 ; 47 L. J. Q. B. 451 ; 26 W. R. 775 ; 38 L. T. N. S. 643 288, 289 Lancaster v. De Trafford, 31 L. J. Ch. 554 ; 8 Jur. N. S. 873 ; 10 W. R. 474 ; 7 L. T. N. S. 40 1S6 Lansdowne v. Lansdowne, 1 Madd. 116 57, 64 Lanyon v. Davy, 11 M. & W. 218 ; 12 L. J. Ex. 200 455 v. Smith, 3 B. & S. 938 ; 32 L. J. Q. B. 212 ; 9 Jur. N. S. 1228 ; 11 W. R. 665 ; 8 L. T. N. S. 312 ; 2 N. R. 118 . 456, 459, 467, 468 Lascelles v. Onslow, 2 Q. B. D. 433 ; 46 L. J. Q. B. 333 ; 25 W. R. 496 ; 36 L. T. N. S. 459 76, 150, 151, 152 Law, Re, 7 Jur. N. S. 511 ; see S. C. nom. Jlc Mallins' Settled Estates . . 129 Lawe v. Stoney, W. N. 1876, p. 141 139 Lawler v. Kershaw, 1 M. & M. 93 459 Lawton v. Lawton, 3 Atk. 13 57, 267 V. Salmon, 1 H. Bl. 259, n 267 Lead Co. v. Richardson, 3 Burr. 1341 ; 1 W. Bl. 389 521,558 Lee v. Alston, 1 B. C. C. 194 ; 3 B. C. C. 37 ; 1 Ves. 78 ... . 59, 539 — v. Stevenson, E. B. & E. 512 ; 27 L. J. Q. B. 263 ; 4 Jur. N. S. 950 252, 253 Leeds v. Amhurst, 14 Sim. 357 ; 2 Ph. 117 ; 14 L. J. Ch. 73 ; 9 Jur. 359 58, 63, 64 Lees v. Jones, 3 Jur. N. S. 954 113, 116, 139, 140, 141 Leigh v. Balcarres, 6 C. B. 847 .......... 171 Lemaitre v. Davis, 19 Ch. D. 281 ; 51 L. J. Ch. 173 ; 30 W. R. 360 ; 46 L. T. N. S. 407 • 314, 317 Letchford, In re, 2 Ch. D. 719 ; 45 L. J. Ch. 530 ; 35 L. T. N. S. 466 . . 159 Lewis v. Branthwaite, 2 B. & Ad. 443 26, 32, 33, 34, 70, 533 v. Fothergill, 5 Ch. 103 . . . 218, 219, 231, 232, 233, 236, 237, 238 — - v. Marsh, 8 Ha. 97 ; 13 L. T. 89 196, 225, 235, 541, 542 Ley v. Ley, 6 Eq. 174 ; 37 L. J. Ch. 328 ; 16 W. R. 509 ; 18 L. T. N. S. 126 210, 266 Libri's Case, 30 L. T. 185 ; 5 W. R. 773 463, 467 Liford's Case, 11 Co. Rep. 46 b. . . . 77 78 79 TABLE OF CASES. lxix PAGE Lingwood v. Clyde, L. R. 2 C. P. 72 ; 36 L. J. C. P. 10 ; 15 W. R. 311 ; 16 L. T. N. S. 229 98 v. Stowmarket Paper Making Co., 1 Eq. 77 ; 11 Jur. N. S. 993 ; 11 W. R. 78 ; 13 L. T. N. S. 540 397 Listowel v. Gibbings, 9 Ir. C. L. Rep. 223 4, 12, 16, 48, 205 Littledale v. Lonsdale, cited 2 H. Bl. 267 294 Livingstones Rawyards Coal Co., 5 App. Cas. 25; 28 W. R. 357; 42 L. T. N. S. 334 378, 534, 535, 536, 537, 538 Llanover v. Homfray, 13 Ch. D. 380 ; 28 W. R. 487 34 Llewellyn v. Rous, 2 Eq. 27 ; 12 Jur. N. S. 580 266 Lloyd v. Lloyd Co., Set. 189 (V.-C. M. 8 Aug. 1876) 82, 210 Llynvi, &c, Co. v. Brogden, 11 Eq. 188 ; 40 L. J. Ch. 46 ; 19 W. R. 196 ; 23 L. T. N. S. 518 532, 535, 536, 537 Lockwood v. Wood, 6 Q. B. 31 ; 5 Jur. 626 96 Lofthouse's Case, 2 De G. & J. 69 ; 27 L. J. Bky. 1 ; 6 W. R. 140 ; 31 L. T. 19 442, 448, 463, 466, 469 Lomax v. Stott, 39 L. J. Ch. 834 401, 405, 414 London v. Riggs, 13 Ch. D. 798 ; 49 L. J. Ch. 297 ; 28 W. R. 610 ; 42 L. T. N. S. 580 296, 371, 372 ■ v. Web, 1 P. Wms. 527 ; 2 Eq. Ca. Abr. 758, pi. i . . . 64 London & North Western Ry. Co. v. Ackroyd, 31 L. J. Ch. 588 ; 8 Jur. N. S. 911 ; 10 AV. R. 367 ; 6 L. T. K S. 124 . 8, 249, 329 v. Buckmaster, L. R. 10 Q. B. 444 ; 44 L. J. M. C. 29 ; 23 W. R. 160 ; 31 L. T. K S. 835 256, 563 London & South Western Ry. Co. v. Gomm, 20 Ch. D. 562 ; 51 L. J. Ch. 193 ; 30 W. R. 620 ; 45 L. T. N. S. 505 182 Lonsdale v. Bathurst, 2 AVood, 302 521 v. Curwen, 3 Bli. 168 n 540, 541, 542 Loosemore v. Tiverton, 22 Ch. D. 25 ; 51 L. J. Ch. 570 ; 30 W. R. 628 ; 47 L. T. N. S. 151 12, 15, 21, 30, 108, 531, 533 Lopez v. Andrew, 3 M. & Ry. 329 n 31 Lord v. Wightwick, 4 De G. M. & G. S03 ; 1 Dr. 576 ; 23 L. J. Ch. 235 ; 22 L. T. 249 ; 2 Eq. Rep. 349 ; sec Wightwick v. Lord 51 Lovat v. Leeds, 11 L. T. N. S. 442 164 Low Moor Co. v. Stanley Coal Co., 33 L. T. N. S. 436 ; 34 ib. 186 42, 202, 250, 253, 257, 524, 526, 527, 528, 532, 533 Lowe v. Govett, 3 B. & Ad. 863 ; 1 L. J. K. B. 224 31 Lowndes v. Bettle, 33 L. J. Ch. 451 539 Lowther v. Cavendish, 1 Eden. 99 ; Amb. 356 247, 267 Luscombe v. Steer, 15 AV. R. 1191 ; 17 L. T. N. S. 229 271 Lushington v. Boldero, 15 Beav. 1 ; 21 L. J. Ch. 49 ; 16 Jur. 140 ; 18 L. T. 151 . 64, 539 Lyddal v. Clavering, Amb. 371 n. 44, 45 v. Weston, 2 Atk. 19 188, 189, 281, 282 Lyle v. Richards, L. R. 1 H. L. 222 ; 35 L. J. Q. B. 214 ; 12 Jur. N. S. 947 ; 15 L. T. N. S. 1 213 Lynn Regis v. Taylor, 3 Lev. 160 93, 509 Lyon v. Fishmongers' Co., 1 App. Cas. 662 ; 44 L. J.' 6 Ch. 408 ; 23 AV. R. 689 ; 32 L. T. N. S. 479 30 Macbryde v. Weekes, 22 Beav. 533 ; 2 Jur. N. S. 918 ; 28 L. T. 135 . 193, 195 McDonnells Kenneth, 1 Ir. C. L. Rep. 113 359 v. McKinty, 10 Ir. L. R. 514 11, 20, 41, 527 Ixx TABLE OF CASES. PAGE McGiffen v. Palmer's Co., 10 Q. B. D. 5 ; 52 L. J. Q. B. 25 ; 31 W. R. 113; 47 L. T. N. S. 346 ^l 1 Maclean v. Macandrew, 43 L. J. P. C. 69 52 3 McMahon v. Burchell, 2 Ph. 127 ; 1 Coop. 457 n0 Madras Co. v. Carvetinagarum, 22 W. R. 865 ; 30 L. T. N. S. 770 . . . 411 Magor v. Chadwick, 11 A. & E. 571 ; 9 L. J. Q. B. 159 ; 4 Jar. 482 390, 391, 392, 393, 398, 399, 401, 402 440 Mailtos' Settled Estates, Be, 3 Giff. 126 ; 30 L. J. Ch. 929 ; 9 W. R. 588 ; 4 L. T. 1ST. S. 435 ; nom. Re Law, 7 Jur. N. S. 511 129 Manselo. Evans, Pemb. (1st ed.) 263 540,542 Mansfield v. Crawford, 9 Ir. Eq. Rep. 271 Manvers v. Bartholomew, 4 Q. B. D. 5 ; 48 L. J. M. C. 3 ; 27 W. R. 167 ; 39 L. T. N. S. 327 107 Mare v. Charles, 5 E. & B. 978 ; 25 L. J. Q. B. 119 ; 2 Jur. N. S. 234 ; 4 W. R. 267 ; 26 L. T. 238 461 v. Malachy, 1 M. & Cr. 559 ; 5 L. J. Ch. 345 .... 449, 451, 466 Marker v. Kenrick, 13 C. B. 188 ; 22 L. J. C. P. 129 ; 17 Jur. 44 ; 20 L. T. 223 237 Marlborough v. St. John, 5 De G. & Sm. 174 ; 21 L. J. Ch. 381 ; 16 Jur. 310 ; 18 L. T. 252 51, 78, 79, 80, 82, 175 Marsden v. Moore, 4 H. & N. 500 ; 28 L. J. Ex. 288 ; 33 L. T. 126 . . . 192 Marshall v. Ulleswater Co., 3 B. & S. 732 ; 32 L. J. Q. B. 139 ; 9 Jur. N. S. 988 ; 11 W. R. 489 ; 8 L. T. N. S. 416 ; 1 N. R. 519 . . . • 26 Martin v. Cotter, 3 J. & L. 496 188 > 189 v. Porter, 5 M. & W. 351 378, 531, 534 Martyn ». Gray, 14 C. B. N. S. 824 444, 456, 457 v. Williams, 1 H. & N. 817 ; 28 L. J. Ex. 117 ; 5 W. R. 351 ; 28 L. T. 321 249, 250, 252, 254 Mason v. Shrewsbury, &c, Ry. Co., L. R. 6 Q. B. 578 ; 40 L. J. Q. B. 293 ; 25 L. T. N. S. 239 384, 394, 395, 401, 402, 413 Massey v. Goyder, 4 C. & P. 161 302, 303 Massy v. Gubbins, Longf. & Towns. 88 Mathers v. Green, 1 Ch. 29 ; 35 L. J. Ch. 1 ; 11 Jur. 815 ; 14 W. R. 17; 13 L. T. K S. 420 no Matthews v. Carlisle, 14 L. T. 306 496 v. Harris, 14 L. T. 307 481 v. King, 3 H. & C. 910 ; 13 L. T. N. S. 120 462 Maturin v. Tredennick, 12 W. R. 740 ; 10 L. T. N. S. 331 ; 4 X. R. 15 . 465, 466 Mawson v. Fletcher, 6 Ch. 91 ; 40 L. J. Ch. 131 ; 19 W. R. 141 ; 23 L. T. N. S. 545 ; S. C. 10 Eq. 212 ; 39 L. J. Ch. 583 ; 18 W. R. 798 ; 23 L. T. K S. 277 12, 34, 188, 190, 527 Maxwell v. Martin, 6 Bing. 522 ; 4 Moo. & P. 291 ; 8 L. J. (O. S.) C. P. 174 . 96 Mayhew's Case, 5 De G. M. & G. 837 ; 24 L. J. Ch. 353 ; 1 Jur. N. S. 566 ; 3 W. R. 95 ; 24 L. T. 150 ; S. C. 2 W. R. 353, 486 ; 23 L. T. 55, 137 442, 467, 468, 472 Metiers v. Devonshire, 16 Beav. 252 ; 22 L. J. Ch. 310 ; 1 W. R. 44 ; 20 L. T. K S. 268 215, 217, 218 Mellor v. Spateman, 1 Wm. Saund. 339, 343 ; 2 Keb. 527, 550, 570 . . 91, 94, 97 Mellors v. Shaw, 1 B. & S. 437 ; 30 L. J. Q. B. 333 ; 7 Jur. N. S. 845 ; 9 W. R. 748 612 Metropolitan Board of Works v. Metropolitan Ry. Co., L. R. 4 C. P. 192 ; 38 L. J. C. P. 172 ; 17 W. R. 416 ; 19 L. T. N. S. 10, 744 ; S. C. L. R. 3 C. P. 612 ; 37 L. J. C. P. 281 ; 16 W. R. 1117 311, 315 Metropolitan Rly. Co. & Cosh, In re, 13 Ch. D. 607 ; 49 L. J. Ch. 277 ; 28 W. R. 685 ; 40 L. T. N. S. 482 ; 42 ib. 73 . . . 18, 20 k Cotton's Trustees, Re, 45 L. T. N. S. 103 . 12, 183, 203 Mexborough v. Bower, 7 Beav. 127 240, 248 TABLE OF CASES. lxxi PAGE Mexborough & Wood, Re, 47 L. T. N. S. 516 223 Meynell v. Surtees, 3 Sm. & G. 101 ; 25 L. J. Ch. 257 ; 1 Jur. N. S. 80, 737 ; 3 W. R. 36, 535 ; 24 L. T. 120 ; 25 ib. 227 356, 362 Micklethwaite v. Winter, 6 Exch. 644 ; 20 L. J. Ex. 313 ; 17 L. T. 185 . 15,' 205 Midgley v. Richardson, 14 M. & W. 595 ; 15 L. J. Ex. 257 361, 363, 364, 365, 367, 378 Midland Rly. Co. v. Checkley, 4 Eq. 19 ; 36 L. J. Ch. 380 ; 15 W. R. 671 ; 16 L. T. N. S. 260 12, 328, 352 v. Haunchwood Brick & Tile Co. , 20 Ch. D. 552 ; 51 L. J. Ch. 778 ; 46 L. T. N. S. 301 4, 5, 8, 9, 12, 15, 19, 142, 203, 212, 250, 329, 338, 343, 346, 348 Miles v. Rose, 5 Taunt. 705 ; 1 Marsh, 313 30 Miller v. Miller, 13 Eq. 263 ; 41 L. J. Ch. 291 ; 20 W. R. 324 . . 46, 47, 50, 66 Millett v. Davey, 31 Beav. 470 ; 32 L. J. Ch. 122 ; 9 Jur. N. S. 92; 11 W. R. 176 ; 7 L. T. N. S. 551 25, 84, 85, 86 Milne v. Taylor, 16 L. T. 172 70, 215 Milward's Estate, Lire, 6 Eq. 248 ; 16 W. R. 1078 ' 129 Miner v. Gilmour, 12 Moo. P. C. 131 ; 7 W. R. 328 ; 33 L. T. 98 . . . 382 Mines, Case of, Plowden, 310 2, 26, 40, 281 Mitchell v. Darley, &c. Co., 10 Q. B. D. 457 ; 52 L. J. Q. B. 394 ; 31 W. R.' 549 542 v. Dors, 6 Ves. 147 539, 540 Moggridge v. Hall, 13 Ch. D. 380 ; 28 W. R 487 34 Mold v. Wheatcroft, 27 Beav. 510 ;'29 L. J. Ch. 11 ; 6 Jur. N. S. 2 ; 1 L. T. N. S. 226 356, 377 Monmouth Canal Co. v. Harford, 1 Cr. M. & R 614 ; 5 Tyrw. 68 ; 4 L. J. Ex. 43 356, 372, 378 Moore v. Hammond, 6 B. & C. 456 ; 9 D. & Ry. 482 ; 5 L. J. (O. S.) K. B. 267 452 Mordue v. Durham, L. R. 8 C. P. 336 ; 42 L. J. C. P. 114 ; 28 L. T. N. S. 593 275, 303, 316 Morewood v. Wood, 14 East, 326, n. 93, 96 Morgan v. Crawshay, L. R. 5 H. L. 304 ; 20 W. R. 554 ; 24 L. T. N. S. 889 ; see Crawshay v. Morgan .... 249, 250, 482, 483, 563, 564 v. Powell, 3 Q. B. 278 ; 2 G. & Dav. 721 ; 11 L. J. Q. B. 263 ; 6 Jur. 1109 531, 534 Morris v. Bradburn, 3 Ch. D. 812 355, 356, 361, 374, 378 v. Glynn, 27 Beav. 218 ; 5 Jur. N. S. 1047 ; 2 L. T. N. S. 73 . . . 264 v. Rhydydefed Colliery Co., 3 H. & N. 473, 885 ; 5 Jur. N. S. 339 ; 32 L. T. 161 170 v. Smith, 3 Dougl. 279 217 Morse v. James, Willes, 122 ; 7 Mod. 245 482 Mostyn v. Lancaster, 23 Ch. D. 583 ; 51 L. J. Ch. 696 ; 31 W. R 3, 686 ; 46 L. T. N. S. 648 ; 48 ib. 715 236, 237, 245, 246 Mott v. Lockhart, 8 App. Cas. 568 522 Mountjoy's Case, Godb. 17 ; 1 And. 307 ; Moore's Rep. 174 . . . . 252, 256 Moyle v. Jenkins, 8 Q. B. D. 116 ; 51 L. J. Q. B. 112 ; 30 W. R. 324 . . 612 v. Mayle, Owen, 66 ; Noy, 70 46, 51 Mulliner v. Midland Ry. Co., 11 Ch. D. 611 ; 48 L. J. Ch. 258 ; 27 W. R. 330 ; 40 L. T. N. S. 121 SO, 86 Mimdy v. Rutland, 23 Ch. D. 81 ; 30 W. R. 635 ; 46 L. T. N. S. 477 183, 268, 287, 290, 291, 294, 295, 297, 304, 305, 320, 352, 353 Muugle v. Young, 10 Sess. Cas. (Ser. 3) 901 239, 248 Murchie v. Black, 19 C. B. N. S. 190 ; 34 L. J. C. P. 337 ; 11 Jur. N. S. 608 ; 13 W. R. 896 ; 12 L. T. N. S. 735 294, 299, 304, 305, 310 Murphy v. Ryan, 2 Ir. Rep. C. L. 143 30 lxxii TABLE OF CASES. PAGE Musgiave v. Forster, L. R. 6 Q. B. 590 ; 40 L. J. Q. B. 207; 19 W. R. 1141 ; 24 L. T. N. S. 614 154, 205 v. The Inclosure Commissioners, L. R. 9 Q. B. 162 ; 43 L. J. Q. B. 80 ; 22 W. R. 295 ; 30 L. T. N. S. 160 154 Muskett v. Hill, 5 Bing. N. C. 694 ; 7 Scott, 855 ; 9 L. J. C. P. 201 241, 249, 252, 254, 256 Nagle's Trusts, In re, 6 Ch. D. 104 134 Native Iron Co., In re, 2 Ch. D. 345 ; 45 L. J. Ch. 517 ; 24 W. R. 503 ; 34 L. T. N. S. 777 450 Neath and Brecon Ry. Co., Ex parte, 2 Ch. D. 201 ; 45 L. J. Ch. 196 ; 24 W. R. 357 347 Neath Canal Co. v. Ynisarwed Colliery Co., 10 Ch. 450 . . 357, 378, 379 Neill's Trustees v. Dixon, 7 Sess. Cas. (Ser. 4), 741 304 Nelson v. Bridges, 2 Beav. 236 ; 3 Jur. 1098 86, 537 New River Co. v. Johnson, 2 E. & E. 435 ; 29 L. J. M. C. 93 ; 6 Jur. N. S. 374 ; 8 W. R. 179 387, 388 New Sombrero Phosphate Co. v. Erlanger, 5 Ch. D. 73 ; 46 L. J. Ch. 425 ; 25 W. R. 18, 436 ; 35 L. T. N. S. 309 ; 36 ib. 222 ; see Erlanger v. New Som- brero Phosphate Co 121, 199, 200 Newby v. Harrison, 1 J. & H. 393 ; 30 L. J. Ch. 863 ; 7 Jur. N. S. 981 ; 9 W. R. 849 ; 4 L. T. N. S. 397 252, 253 Newcastle's Estates, He, 24 Ch. D. 129 ; 52 L. J. Ch. 645 ; 31 W. R. 782 ; 48 L. T. N. S. 779 166, 167 Newcomen v. Coulson, 5 Ch. D. 133 ; 46 L. J. Ch. 459 ; 25 W: R. 469 ; 36 L. T. N. S. 385 20, 26, 359 Newmarch v. Brandling, 3 Swanst. 99 . . . . . . . . 362, 377 Newton v. Daly, 1 Fos. & F. 26 453, 456 v. Nancarrow, 15 Q. B. 13, 144 ; 19 L. J. Q. B. 314 ; 14 Jur. 911 . 424 v. Newton, 2 Wils. 170 259 v. Nock, 43 L. T. N. S. 197 220, 226, 228, 235 Nicholls v. Diamond, 9 Exch. 154 ; 23 L. J. Ex. 1 ; 2 W. R. 12 ; 22 L. T. 79 ; 2 Com. L. Rep. 305 461 v. Rosewarne, 6 C. B. N. S. 480 ; 28 L. J. C. P. 273 ; 5 Jur. N. S. 1266 ; 7 W. R. 612 462, 463, 466, 467 Nichols v. Marsland, 2 Ex. D. 1 ; 46 L. J. Ex. 174 ; 25 W. R. 173 ; 35 L. T. N. S. 725 ; S. C. L. R. 10 Exch. 255 ; 44 L. J. Ex. 134 ; 23 W. R. 693 ; 33 L. T. N. S. 625 412 Nicklin v. Williams, 10 Exch. 259 ; 23 L. J. Ex. 335 ; 2 Com. L. Rep. 1304 . 288, 289 Nimmo v. Clark, 10 Sess. Cas. (Ser. 3) 477 572, 588, 595 Nitro-Phosphate Co. v. London, &c, Docks Co., 9 Ch. D. 503 ; 37 L. T. N. S. 330 412 Normanton Gas Co. v. Pope, 48 L. T. N. S. 666 ; affirmed W. N. 1883, p. 108 ; 52 L. J. Q. B. 629 ; 32 W. R. 134 312, 337, 351, 354 North Eastern Ry. Co. v. Crossland, 4 De G. F. & J. 550 ; 32 L. J. Ch. 353 ; 11 W. R. 83 ; 7 L. T. N. S. 765 ; 1 N. R. 72 ; S. C. 2 J. & H. 565 . . 311, 326, 327, 331, 332, 352, 353 v. Elliot, 1 J. & H. 444 ; 2 De G. F. & J. 423 ; 29 L. J. Ch. 808 ; 30 ib. 160 ; 7 Jur. N. S. 6 ; 8 W. R. 603 ; 9 ib. 172 ; 3 L. T. N. S. 82, 520 ; see Elliot v. North Eastern Ry. Co. 290, 294, 298, 311, 326, 393 North Tamar Mine, cited 2 J. & H. 422 478 Northam v. Bowden, 11 Exch. 70 ; 24 L. J. Ex. 237 ; 25 L. T. 100 . . 251, 253 v. Hurley, 1 E. & B. 665 ; 22 L. J. Q. B. 183 ; 17 Jur. 672 . 384, 3S6 542 129 13 W. 190 417 31 W. 46 L. . 382, 384 TABLE OF CASES. lxxiii PAGE Northey v. Johnson, 19 L. T. 104 . . 456, 457, 464, 465, 466, 467, 470, 473 Norton v. Cooper, 5 De G. M. & G. 728 ; 25 L. J. Ch. 121 ; 2 W. R. 362, 659 ; 23 L. T. 125 . . 83 Norval v, Pascoe, 34 L. J. Ch. 82 235, 236, 249, 254 Norway v. Rowe, 19 Ves. 143 . . . 115, 119, 120, 121, 249, 250, 256, 440, 540 Nuttall v. Bracewell, L. R. 2 Exch. 1 ; 36 L. J. Ex. 1 ; 12 Jur. N. S. 989 ; 15 L. T. N. S. 313 381, 384 Oakley i'. Glan-y-Pwll Co., Set. (3rd. ed. 903) .... Okeover, Re, Set. 1501, 1502 (V.-C. M. 2 Aug. 1873) Onions v. Cohen, 2 H. & M. 354 ; 34 L. J. Ch. 338 ; 11 Jur. N. S. 198 ; 13 W. R, 426 ; 12 L. T. N. S. 15 ; 5 N. R. 400. Oppy v. De Dustanville, Smirke's rep. of Vice v. Thomas, p. 38 Ormerod v. Todmorden Mill Co., 11 Q. B. D. 155 ; 52 L. J. Q. B. 445 ; R. 759 ; S. C. 8 Q. B. D. 664 ; 51 L. J. Q. B. 348 ; 30 W. R. 805 T. N. S. 669 Ormond v. Kynnersley, 7 L. J. (O. S.) Ch. 150 ; 5 Madd. 369 ; 2 S. & S. 15 ; sec Butler v. Kynnersley ........... 64 Orr Ewing v. Cokpihoun, 2 App. Cas. 839 383 Owen v. Van lister, 10 C. B. 318 ; 20 L. J. C. P. 61 ; 16 L. T. 194 . . 125, 458 Oxenden v. Compton, 2 Ves. 69 ......... 45 v. Palmer, 2 B. & Ad. 236 ; 9 L. J. (O. S.) K. B. 232 . . . [ 91 Paddock v. Forrester, 3 M. & Gr. 903 ; 3 Scott N. R. 715 ; 11 L. J. C. P. 107 . 104 Padwick v. Knight, 7 Exch. 854 ; 22 L. J. Ex. 198 ; 19 L. T. 206 . . 91, 93, 96 Palmer v. Fleshees, 1 Sid. 167, 227 ; 1 Lev. 122 ; 1 Keb. 553, 625, 794 ; Raym. ' 8 ? 298, 315 Palmer's Case, 7 Ch. 286 ; 20 W. R. 323 ; 26 L. T. N. S. 374 . 420, 423, 470, 472 Palmer's Will, In re, 13 Eq. 408; 41 L. J. Ch. 511 . . . .'.'.' 1.34 Parker v. Frith, 1 S. & S. 199, n 19 4 v. Hills, 5 Jur. N. S. 809 ; 33 L. T. 46 [ i 85 r. Taswell, 2 De G. & J. 559 ; 4 Jur. N. S. 183 ; 6 W. P. 608 ; 30 L. T. 347 ; 31 ib. 226 187 v. Wells, 1 B. P. C. 545 259, 260 Parrott v. Palmer, 3 M. & K. 632 ... 56, 57, 73, 74, 98, 101, 226, 532, 540 Partridge v. Scott, 3 M. & W. 220 ; 7 L. J. Ex. 101 . . 290, 298, 300, 3is', 318 Pascoe v. Swan, 27 Beav. 508 ; 29 L. J. Ch. 159 ; 5 Jur. N. S. 1235 ; 8 W. R. 130 ; 1 L. T. N. S. 17 ' no Pastor's Case, Winch, 8 .......... . 72 Paul v. Dowling, 3 C. & P. 500 ; Moo. & M. 263 259 Peachv v. Somerset, 1 Str. 447 ; Prec. in Chanc. 568 ; 2 Ecp. Abr. 227, 9 • 228 10 ' . ! 72 Peardon v. Underbill, 16 Q. B. 120 ; 20 L. J. Q. B. 133 ; 15 Jur. 465 ; 16 L. T. 262 1 51 Peek v. Trinsmaran Co., 2 Ch. D. 115 ; 45 L. J. Ch. 281 ; 24 W. R. 361 . . 209 Peel v. Thomas, 15 C. B. 714 ; 24 L. J. C. P. 86 ; 24 L. T. 259 ; 3 Com. L. Rep. 397 443, 456, 457 Pell v. Shearman, 10 Exch. 766 .......... 234 Penhale, &c. Mining Co., In re, 2 Ch. 398 ; 36 L. J. Ch. 515 ; 15 W. R. 664 ; 16 L. T. N. S. 336 425, 448 Pennant, kc. Mining Co., He, 15 Jur. 1192 . . . . . . . 442 455 Pennington v. Brinsop Hall Coal Co., 5 Ch. D. 769 ; 46 L. J. Ch. 773 ; 25 W. R. 874 ; 37 L. T. N. S. 149 . . . . 383, 385, 386, 396, 397 l xx iv TABLE OF CASES. PAGE Penryn v. Holm, 2 Ex. D. 328 ; 46 L. J. Ex. 506 ; 25 W. R. 498 ; 37 L. T. N. S. 133 . . • • g2 Peppin v. Shakespear, 6 T. R. 748 Percy v. Shanlv, 2 Moll. 515 • • • • • Perens » Johnson, 3 Sm. & G. 419 ; 3 Jur. N. S. 975 ; 29 L. T. 383 110, 137, 141, 199 PeiTot v. Perrot, 3 Atk. 94 • • • ' * Perry . Attwood, 6 E. & B. 691 ; 25 L. J. Q. B. 408 ; 2 Jur. N. S. 1071 ; 4 W. . R. 608 ; 27 L. T. 170 . . • • • • ■ • • • ' Peruvian Rly. Co. v. Thames & Mersey Marine Insurance Co., 2 Ch. 61/ , 6b h J. Ch. 864 ; 15 W. R. 708 ; 16 L. T. K S. 315 . ■•„••_ 125 ' 126 Peters v. Clarson, 7 M. & Gr. 548 ; 8 Scott K R. 384 ; 13 L. J. 0. P. 217 ; 8 Jur. ^ Peyton v. London, 9 B. & C. 725 '*??»'??* Phillips *. Homfray (1), 6 Ch. 770 34, 378, 401, 406, 414, 531, 532, 53o, 53/, 540 541, 544 - (2), 24 Ch. D. 439 ; 52 L. J. Ch. 401 ; 32 W. R. 6 ; 49 L. T. U. S. 5 879, 524 > 532 > 540 > 544 v. Jones, 9 Sim. 519 ; 3 Jur. 242 215, 217 v. Llanover, 13 Ch. D. 380 ; 28 W. R. 487 34 „. Morrison, 12 M. & W. 740 ; 13 L. J. Ex. 212 ; 8 Jur. 343 . . 211 Phosphate Sewage Co. v. Hartmont, 5 Ch. D. 394 ; 46 L. J. Ch. 661 ; 25 W. R. 743 ; 37 L. T. N. S. 9 Pickering v. Appleby, 1 Com. 353 18o > AQi Pigot v. Bullock, 1 Yes. 479 Pillar v. Llynvi Co., L. R. 4 C. P. 752 ; 38 L. J. C. P. 294 ; 17 W. R 1123 ; 20 L. T. N. S. 923 6 J 9 Pirn v. Davies, 1 Hog. 11 J3 Pindar v. Jackson, 1 Wood, 315 ^ 18 > 5 ^ y Pinnington v. Galland, 9 Exch. 1 ; 22 L. J. Ex. 348 Pit v. Claveriuth, 1 Barn. 318 3o8 Place v. Jackson, 4 D. & Ry. 318 ; 2 L. J. (O. S.) K. B. 156 . 36, 76, 102, 104 Plant v. Stott, 21 L. T. N. S. 106 401, 414, 415, 532, 536, 537 Player v. Roberts, Sir W. Jones, 243 ; Gilb. Ten. 327 . . . • 34, 74, 8/ Plymouth v. Archer, 1 B. C. C. 159 46, 51, 133 Pollard v. Clayton, 1 K. & J. 462 ; 1 Jur. N. S. 342 ; 3 W. R. 349 ; 25 L. T. 50 184, 194, 198, 229 Pollock v. Lester, 11 Ha. 266 270 > 271 Pomfret v. Rycroft, 1 Wms. Saund. 321 ; 1 Vent. 26 ; 1 Sid. 429 ; 2 Keb. 505, 543, 569 293 Ponsonby v. Hartley, W. N. 1883, pp. 13, 44 207, 524 Popplewell v. Hodkinson, L. R. 4 Exch. 248 ; 38 L. J. Ex. 126 ; 17 W. R. 806 ; 20 L. T. N. S. 578 291,349,350 Port v. Turton, 2 Wils. 169 . . 27, 63, 128, 250, 253, 259, 260, 262, 263, 266, 523 Porter v. Lopes, 7 Ch. D. 358 ; 27 L. T. N. S. 824 . HI, 139 Portland v. Hill, 2 Ecp 765 ; 35 L. J. Ch. 439 ; 12 Jur. N. S. 286 35, 73, 74, 75, 91, 97, 98, 99, 100, 101 Pott v. Eyton, 3 C. B. 32 ; 15 L. J. C. P. 257 123 Pountney v. Clayton, 11 Q. B. D. 820 ; 52 L. J. Q. B. 566 ; 31 W. R. 501, 664 ; 49 L. T. N. S. 283 268, 287, 294, 297, 299, 311, 329, 330, 331, 338, 340, 342, 348 Powell v. Aiken, 4 K. & J. 343 70, 71, 375, 378, 379, 415, 530, 531, 532, 534, 535, 536, 537, 540, 544 v. Elliott, 10 Ch. 424 ; 23 W. R. 777 ; 33 L. T. N. S. 110 . . . 201 v. Jessopp, 18 C. B. 336 ; 25 L. J. C. P. 199 ; 4 W. R. 465 185, 463, 464, 466 v. Rees, 7 A. & E. 426 ; 8 L. J. Q. B. 47 . . . . 532, 544, 545 120 . . 584 309 21, 188, 205 . 1093 ; 18 L. T. 187, 196 TABLE OF CASES. lxXV PAGE Powell v. Thomas, 6 Ha. 300 356 Powell's Will, Be, 23 W. R. 151 134 Powlett v. Bolton, 3 Ves. 374 60, 61 Prendergast v. Turton, 1 Y. & C. C. C. 98 ; 11 L. J. Ch. 22 ; 13 ib. 268 ; 5 Jur. 1102 ; 8 ib. 205 . . . • Prentice v. Hall, 26 W. R. 237 ; 37 L. T. N. S. 605 . Preston v. Seddon {see Aspden v. Seddon, 1 Ex. Div. 496) . Pretty v. Solly, 26 Beav. 606 ; 33 L. T. 72 . Price v. Griffith, 1 De G. M. & G. 80 ; 21 L. J. Ch. 78 ; 15 Jur. 190 v. Macaulay, 2 De G. M. & G. 339 ; 19 L. T. 238 34 Proctor v. Hodgson, 10 Exch. 824 ; 24 L. J. Ex. 195 ; 3 C. L. Rep. 755 . . 371 Proud v. Bates, 34 L. J. Ch. 406 ; 12 L. T. N. S. 565 10, 11, 67, 68, 69, 87, 294, 319, 320, 333, 351, 352, 355, 361, 366, 369, 376, 402 Pryse's Estates, In re, 10 Eq. 531 ; 39 L. J. Ch. 760 ; 18 W. R. 1064 . . . 134 Pulteney v. Warren, 6 Ves. 72 57, 226 Purcell v. Nash, 1 Jones, 625 ; 2 Jones, 116 48 Pyer v. Carter, 1 H. & N. 916 ; 26 L. J. Ex. 258 ; 5 W. R. 371 ; 28 L. T. 371 310, 402 Pyne v. Dor, 1 T. R. 55 55 Quarrington v. Arthur, 10 M. & W. 335 ; 11 L. J. Ex. 418 . . . 219, 220 Raine v. Alderson, 6 Scott, 691 ; 3 Bing. N. C. 702 ; 7 L. J. C. P. 273 ; 2 Jur. 327 32, 533 Ralph v. Harvey, 1 Q. B. 845 ; 10 L. J. Q. B. 337 457 Rameshur v. Koonj, 4 App. Cas. 121 382, 390, 391, 392 Ramsay v. Blair, 1 App. Cas. 701 . . . .2, 10, 18, 20, 67, 68, 69, 268, 355 Ramsden v. Hurst, 27 L. J. Ch. 482 ; 4 Jur. N. S. 200 ; 6 W. R. 349 ; 31 L. T. 325 -188 v. Yeates, 6 Q. B. D. 583 ; 50 L. J. M. C. 135 ; 29 W. R. 628 ; 44 L. T. N. S. 612 . . 106, 220 Rawstron v. Taylor, 11 Exch. 369 ; 25 L. J. Ex. 33 . . . . 381, 382, 386, 390 Redgrave v. Lee, L. R. 9 Q. B. 363 ; 43 L. J. M. C. 105 ; 22 W. R. 857 ; 30 L. T. N. S. 519 607 Redmayne v. Forster, 2 Eq. 467 ; 35 L. J. Ch. 847 ; 14 W. R. 825 . . . 118 R. v. Aire and Calder Nav. Co., 30 L. J. Q. B. 337 ; 8 Jur. N. S. 115 ; 10 W. R. 40 324, 331 — v. Alberhury, 1 East, 534 5, 557 — v. Alnwick, 9 A. & E. 444 ; 1 P. & Dav. 343 ; 8 L. J. Q. B. 164 . . . 563 — v. Attwood, 6 B. & C. 277 ; 9 D. & Ry. 328 ; 5 L. J. (O. S.) M. C. 47 . 560, 563 — v. Aylesford Union, 26 L. Ti N. S. 618 562 — v. Baptist Mill Co., 1 M. & S. 612 221, 521, 558, 564 — v. Bedworth, 8 East, 387 215,559 — v. Bell, 7 T. R. 598 355, 564 — v. Bilston, 5 B. & C. 851 ; 8 D. & Ry. 734 558 — v. Bleasdale, 2 C. & K. 765 546 — v. Brettel, 3 B. & Ad. 424 5, 558 — v. Brown, 8 East, 528 5, 558 — v. — , 7 E. & B. 757 ; 26 L. J. Q. B. 308 ; 3 Jur. N. S. 745 . . 570, 585 — v. Churchill, 4 B. & C. 750 ; 6 D. & Ry. 635 91, 97 — v. Crease, 11 A. & E. 677 ; 3 P. & Dav. 434 ; 9 L. J. M. C. 38 . 429, 431, 432, 558, 564 — v. Cunningham, 5 East, 478 .......... 558 — v. Dunsford, 2 A. & E. 568 ; 4 N. & M. 349 ; 4 L. J. M. C. 59 . . .5, 558 — -p. Everist, 10 Q. B. 178 ; see R. v. Westbrook .... 557, 560, 562. 563 lxxvi TABLE OF CASES. PAGE R. v. Fayle, 27 L. T. 64 ; 4 W. R. 460 . . . . 42, 249, 251, 253, 559, 563 — v. Foleshill, 2 A. & E. 593 ; 4 N. & M. 360 ; 4 L. J. M. C. 63 . . 2, 3, 567 — v. Frankland, 32 L. J. M. C. 69 ; 9 Jur. N. S. 388 ; 7 L. T. N. S. 799 ; 1 N. R. 375 442 — v. Granville, 9 B. & C. 188 ; 4 M. & Ry. 171 559, 563 — v. Gratrex, 12 Cox C. C. 157 598 — v. Handley, 9 L. T. N. S. 827 582 — v. Harris, 11 A. & E. 518 ; 3 P. & Dav. 266 ; 9 L. J. Q. B. 114 ; 4 Jur. 459 483 — v. James, 8 G. & P. 131 548 — v. Jolliffe, 2 T. R. 90 355 > 564, 565 — v. Jones, 1 C. & K. 181 ; S. C. 2 M. C. C. 293 546 — v. Keyn, 2 Ex. D. 63 ; 46 L. J. M. C. 17 31, 39 — v. Leeds & Selby Rly. Co., 3 A. & E. 683 ; 5 N. & M. 246 . . . . 331 — v. Main waring, E. B. & E. 474 ; 27 L. J. Q. B. 411 ; 4 Jur. N. S. 928 ; 6 W. R. 594 ; 31 L. T. 178 572 — v. Matthews & Twigg, 14 Cox C. C. 5 548 — v. Metropolitan Board, 3 B. & S. 710 ; 32 L. J. Q. B. 105 ; 9 Jur. N. S. 1009 ; 11 W. R. 492 ; 8 L. T. N. S. 238 ; 1 N. K. 473 .... 387 — v. Norris, 9 C. & P. 241 549 — v. Parrot, 5 T. R. 593 559 — v. Pitt, 5 B. & Ad. 565 ; 2 N. & M. 363 26, 567 — v. Pomfret, 5 M. & S. 139 558 — v. Randall, 4 E. & B. 564 ; 3 Com. L. Rep. 822 ; S. C. nam. R. v. Saunders, 24 L. J. M. C. 57 ; 1 Jur. N. S. 255 ; 3 W. R. 177 ; 24 L. T. 235 551, 558, 559 — v. Rochester, 12 East, 353 558, 559 — v. St. Agnes, 3 T. R. 480 429, 431, 432, 558, 564 — v. St. Austell, 5 B. & Al. 693 ; 1 D. & Ry. 351 221, 249, 250, 558, 559, 564, 565 — v. Sedgley, 2 B. & Ad. 65 ; 9 L. J. (O. S. ) M. C. 61 558 — v. Spon Lane Co., 3 Q. B. D. 673 ; 27 W. R. 46 ; 39 L. T. N. S. 13 ; nam. Spon Lane Co. v. Baker, 48 L. J. M. C. 25 . . . . 403, 591, 596 — v. Stephens, L. R. 1 Q. B. 702 ; 12 Jur. N. S. 961 ; 14 W. R. 859 ; 14 L. T. N. S. 593 . . 269, 270 — v. Todd, 12 A. & E. 816 ; 4 P. & Dav. 335 ; 10 L. J. Q. B. 58 ; 5 Jur. 407 221, 431, 558, 564 — v. Tomlinson, 9 B. & C. 163 ; 4 M. & Ry. 169 ; 7 L. J. (O. S.) M. C. 64 . 563 — v. Tremayne, 4 B. & Ad. 162 ; 1 N. & M. 194 249, 558 — v. Trent, &c. Co., 4 B. & C. 57 ; 6 D. k Ry. 47 ; 3 L. J. (O. S.) K. B. 140 . 563 — v. Trevenner, 2 M. & Rob. 476 545 — v. Warkworth, 1 M. & S. 473 568 — v. Webb, 1 M. C. C. 431 545 — v. Welbank, 4 M. & S. 222 558 — v. West Ardsley, 4 B. & S. 95 ; 32 L. J. Q. B. 306 ; ib. M. C. 255 ; 9 Jur. N. S. 1287 ; 1 W. R. 777 21, 567 — v. Westbrook, 10 Q. B. 178 ; 16 L. J. Q. B. 222 ; 11 Jur. 515 ; 9 L T. 21 226, 557, 559, 560, 562, 563 — v. Whaddon, L. R. 10 Q. B. 230 ; 44 L. J. M. C. 73 ; 23 W. R. 653 ; 32 L. T. N. S. 633 562, 563 — v. Whittingham, 9 C. & P. 234 549 — v. Woodland, 2 East, 164 5, 557, 558 Reignol v. Taylor, 7 Mod. 103 ; Holt, 185 418 Reveley's Settled Estates, 32 L. J. Ch. 812 ; 11 W. R. 744 ; 8 L. T. N. S. 450 . 164 Reynolds v. Bassett, cited in Tapping, Readwin Prize Essay, 49 467 Rich v. Johnson, 2 Str. 1142 27, 523 TABLE OF CASES. lxxvii PAGE Richards v. Harper, L. R. 1 Exch. 199 ; 35 L. J. Ex. 130 ; 12 Jur. N. S. 770 ; 14 W. R. 643 286, 305, 335 v. Harvey, 1 Q. B. 845 ; 10 L. J. Q. B. 337 457 v. Jenkins, 17 W. R. 30 ; 18 L. T. N. S. 437 286, 289, 294, 295, 299, 301, 310, 313, 314, 315, 318, 333, 351 ■ ■ v. Noble, 3 Mer. 673 75 v. Richards, Joh. 255 ; 29 L. J. Ch. 836 ; 6 Jur. N. S. 1145 . . . 369 v. Rose, 9 Exch. 218 ; 23 L. J. Ex. 3 ; 17 Jur. 1036 ; 22 L. T. 104 ; 2 Com. L. Rep. 311 ......... 310 Richardson's Case, 4 "W. R. 670 ; 27 L. T. 197 445, 446, 478 Ricketts v. Bell, 1 De G. & Sm. 335 ; 11 Jur. 918 ; 10 L. T. 105 . 17o' 197,' 198 v. Bennett, 4 C. B. 686 ; 17 L. J. C. P. 17 ; 11 Jur. 1062 443, 444, 460, 463 Ridge, Ex parte, 1 Rose, 316 259 Ridgway v. Sneyd, Kay, 627 ; 24 L. T. 58 . . . . 200, 214, 216, 217 Rigby v. Bennett, 21 Ch. D. 559 ; 31 W. R. 222 ; 48 L. T. 1ST. S. 47 . 310, 311 Riley v. Warden, 2 Exch. 59 ; 18 L. J. Ex. 120 ; 10 L. T. 420 . . . . 609 Rivers v. Adams, 3 Exch. D. 361 ; 48 L. J. Ex. 47 ; 27 W. R. 381 ; 39 L. T. N. S. 39 91, 9 6 Roads v. Trumpington, L. R. 6 Q. B. 56 ; 40 L. J. M. C. 35 ; 23 L. T. K S. 821 251, 253, 558, 559, 563, 564 Roberts r. Clarke, 18 L. T. N. S. 49 271 v. Davey, 4 B. & Ad. 664 ; 1 N. & M. 443 ; 2 L. J. K. B. 141 241, 249, 254, 255 v. Eberhardt, Kay, 148 ; 23 L. J. Ch. 201 ; 2 W. R. 125 ; 22 L. T. 253 111, 113, 114, 115, 116, 117, 119, 137, 139 v. Haines, 6 E. & B. 643 ; 25 L. J. Q. B. 353 ; 2 Jur. N. S. 999 ; 5 W. R. 631 ; 29 L. T. 233 ; see Haines v. Roberts 36, 292, 294, 298, 320, 321, 332, 351 v. Read, 16 East, 215 . 288 v. Roberts, Hard. 96 ......... . 52 v. Rose, L. R. 1 Exch. 82 ; 4 H. & C. 103 ; 35 L. J. Ex. 62 ; 12 Jur. N. S. 78 ; 14 W. R. 225 ; 13 L. T. N. S. 471 ; S. C. 3 H. & C. 162 ; 33 L. J. Ex. 241 ; 10 Jur. N. S. 570 ; 12 W. R, 880 ; 10 L. T. N. S. 624 ; 4 N. R. 338 401, 402, 411 Robinson v. Duleep Singh, 11 Ch. D. 798 ; 48 L. J. Ch. 75S ; 27 W. R. 21 ; 39 L. T. N. S. 313 ; 41 ih. 311 76, 150, 151 v. Litton, 3 Atk. 209 ; 8 Vin. Abr. 475, pi. 16 44 v. Wray, L. R. 1 C. P. 490 ; 14 L. T. N. S. 434 205 Robson v. Devon, 4 Jur. N. S. 245 ; 6 W. R. 203 ; 30 L. T. 225 ; S. C. 3 Jur. N. S. 576 ; 5 W. R. 724 ; 29 L. T. 300 442, 446 Rochdale Canal Co. r. King, 14 Q. B. 122 ; 18 L. J. Q. B. 293 ; 14 Jur. 16 ; 13 L. T. 321 395 Rodewald v. Wayne's Merthyr, &c. Works, Set. 418, 419 (V.-C. M. 25 May, 1876) 113 Roe v. Vernon, 5 East, 51 .......... 34 Rogers v. Brenton, 10 Q. B. 26 ; 17 L. J. Q. B. 34 ; 12 Jur. 263 ; 9 L. T. 352 26, 91, 92, 97, 385, 428, 429, 430, 432, 434, 436, 437, 439, 441 v. Taylor, (1) 1 H. & N. 706 ; 26 L. J. Ex. 203 ; 28 L. T. 275 . 10S, 2S6, 356, 372 v. , (2) 2H. & N. 828 ; 27 L. J. Ex. 173 ; 6 W. R. 249 ; 30 L. T. 321 298, 299, 313, 314, 315, 351 Rokeby v. Elliot, 13 Ch. D. 277 ; 49 L. J. Ch. 163 ; 28 W. R, 282 ; 41 L. T. N. S. 537 ; S. C. 9 Ch. D. 685 ; 47 L. J. Ch. 764 ; 27 W. R. 58 ; 38 L. T. X. S. 846 ; sec Elliot v. Rokeby 219, 222 223 lxxviii TABLE OF CASES. PAGE Rolleston v. New, 4 K. & J. 640 237, 246, 247 Rolls v. Vestry of St. George, 14 Ch. D. 785 ; 49 L. J. Cli. 691 ; 28 W. R. 366, 867 ; 43 L. T. N. S. 140 20, 21, 29 Rose v. Nixon, cited 2 J. & W. 555 57, 523, 532 Ross v. Adcock, L. R. 3 C. P. 655 ; 37 L. J. C. P. 290 ; 16 W. R, 1193 ; 19 L. T. N. S. 202 24, 78, 79, 81, 82 v. Rugge-Price, 1 Ex. D. 269 ; 45 L. J. Ex. 777 ; 24 W. R. 786 ; 34 L. T. N. S. 535 413, 491, 498, 499 Rosse v. Wainman, 14 M. & W. 859 ; 15 L. J. Ex. 67 . . . . 12, 14, 18, 19 Rourke v. White, &c, Co., 2 C. P. D. 205 ; 46 L. J. C. P. 283 ; 25 W. R. 263 ; 36 L. T. N. S. 49 ; S. C. 1 C. P. D. 556 ; 35 L. T. N. S. 160 . . 612, 613 Rowbotham v. Wilson, 8 H. L. C. 348 ; 6 E. & B. 593 ; 8 ib. 123 ; 30 L. J. Q. B. 49 ; 2 L. T. N. S. 642 26, 27, 158, 268, 269, 286, 287, 288, 290, 294, 295, 296, 304, 305, 308, 309, 310, 315, 317, 320, 335, 336 Rowe v. Brenton, Cone. ; 8 B. & C. 737 ; 3 M. & R. 133 26, 34, 38, 39, 73, 74, 98, 100, 101, 428, 429, 430, 431, 441, 502 v. Grenfel, Ry. & M. 396 26, 27 v. Wood, 2 J. & W. 553 . . 57, 63, 83, 84, 115, 116, 117, 118, 120 Rowlands v. Evans, 30 Beav. 302 ; 31 L. J. Ch. 265 ; 8 Jur. N. S. 88 ; 10 W. R. 186 ; 5 L. T. N. S. 658 116, 139, 140 Rowls v. Gells, 2 Cowp. 451 509, 510, 511, 512, 558, 565 Rule v. Jewell, 18 Ch. D. 660 ; 29 W. R. 755 . . . 57, 120, 121, 454 Rutland's Case, 1 Sid. 152 ; 1 Lev. 107 ; 1 Keb. 557 73, 80 Ryhope, &c., Co. v. Foyer, 7 Q. B. D. 485 ; 45 L. T. N. S. 404 . . . 553, 554 Rylands v. Fletcher, L. R, 3 H. L. 330 ; 37 L. J. Ex. 161 ; 19 L. T. N. S. 220 ; see Fletchers Rylands 269, 302, 382, 401, 403, 404, 406, 407, 409, 410, 411, 412, 413, 414 Rylatt v. Marfleet, 14 M. & W. 233 ; 14 L. J. Ex. 305 107 Saccar's Case, Moore, 917 79 Salisbury r. Gladstone, 9 H. L. C. 692 ; 34 L. J. C. P. 222 ; 8 Jur. N. S. 625 ; 9 W. R, 930 ; 4 L. T. N. S. 849 ; S. C. 6 H. & N. 123 ; 30 L. J. Ex. 3 ; 6 Jur. N. S. 1209 ; 8 W. R. 642 . . .12, 34, 73, 74, 90, 98, 103, 305, 307 Salisbury's Case, Godb. 259 77, 78, 82 Salkeld, Ex parte, 3 M. D. & De G. 125 ; 7 Jur. 863 261 Saltash v. Goodman, 7 Q. B. D. 106 ; 50 L. J. Q. B. 508 ; 29 W. R. 639 ; 45 L. T. N. S. 120 ; S. C. 5 C. P. D. 431 ; 49 L. J. Q. B. 565 ; 42 L. T. N. S. 872 ; see Goodman v. Saltash 91, 94, 95, 96 Saltpetre, Case of, 12 Co. Rep. 12 40, 281, 282 Salvin v. North Brancepeth Coal Co., 9 Ch. 705 ; 44 L. J. Ch. 149 ; 22 W. R. 904 ; 31 L. T. N. S. 154 272 Sampson v. Easterby, 9 B. & C. 505 ; 4 Man. & R. 422 246 Sandback Charity Trustees & North Staffordshire Ely. Co., In re, 3 Q. B. D. 1 ; 47 L. J. Q. B. 10 ; 26 W. R. 229 ; 27 L. T. N. S. 391 . . . 144, 347 Sanders v. Partridge, Noy, 132 523 Sandford v. Ballard, 33 Beav. 401 ; 33 L. J. Ch. 450 ; 10 Jur. N. S. 251 . . Ill Sandwich v. Great Northern Rly. Co., 10 Ch. D. 707 ; 49 L. J. Ch. 225 ; 27 W. R. 616 382 Saunders' Case, 5 Co. 12a ; Co. Litt. 54b ; Cr. Eliz. 683 . . . 46, 51, 52, 53 Sayer v. Pierce, 1 Yes. Sen. 232 523, 524, 532 Sayers v. Whitfield, 1 Knapp, P. C. 133 112 Scarth, Re, 10 Ch. D. 499 ; 27 W. R. 499 ; 40 L. T. N. S. 184 . . . . 164 Schomberg, Ex parte, 10 Ch. 172; 23 W. R. 204 ; 31 L. T. N. S. 665 . . 259 TABLE OF CASES. lxxlx TAOE Scots Mines Co. v. Leadhills Mines Co., 3 Macq. 743 ; 34 L. T. 34 387, 389, 393, 404, 405, 408 Scott v. Nesbitt, 14 Ves. 438 112 v. Steward, 27 Beav. 367 168, 170 Scratton v. Brown, 4 B. & C. 485 ; 6 D. & Ry. 536 31 Seagram v. Knight, 2 Ch. 628 ; 3 Eq. 398 ; 36 L. J. Ch. 310, 918 ; 15 W. R. 477, 1152 ; 17 L. T. N. S. 47 56 > 59 ' 62 Seaman v. Vawdrey, 16 Ves. 390 27, 188, 189, 282, 527, 528 Seddon v. Smith, 36 L. T. N. S. 168 26, 29, 526, 531 Sedgwick v. Daniell, 2 H. & N. 319 ; 27 L. J. Ex. 116 452 Sedgwick's Case, 2 Jur. K S. 949 461 Senhouse v. Christian, (1) 1 T. K. 560 358, 359, 368, 378 v. , (2) cited 19 Ves. 157 ; 19 Beav. 356, n. . . . 119, 121 v. Harris, 5 L. T. N. S. 635 219, 224 Senior v. Ward, 1 E. & E. 385 ; 28 L. J. Q. B. 139 ; 5 Jur. N. S. 172 ; 7 W. R. 261 ; 32 L. T. 252 612 , 613 Sewers, Commissioners of, v. Glasse, 19 Eq. 134 77 Seymour v. Morrell, 17 L. T. 139 . . . ' 485, 487 Shafto v. Johnson, 8 B. & S. 252, n. . 210, 295, 296, 304, 320, 322, 323 Shakespear v. Peppin, 6 T. R. 741 91> 151 Shale-y. Hodson, Set. 420 (V.-C. E. 13 Jan. 1846) .... .262 Sharman v. Sanders, 13 C. B. 166 ; 22 L. J. C. P. 86 ; 17 Jur. 765 ; 1 W. R, 152 ; 20 L. T. 247 609 Sharp v. Dawes, 2 Q. B. D. 26 ; 46 L. J. Q. B. 104 ; 25 W. R. 66 ; 36 L. T. N. S. 188 449, 452 v. Wright, 28 Beav. 150 ■ ■ 194, 218 Shaw v. Stenton, 2 H. & N. 858 ; 27 L. J. Ex. 253 ; 6 W. R. 327 ; 30 L. T. 352 228 Sheppard v. Oxenford, 1 K. & J. 491 ; 3 W. R. 397 ; 25 L. T. 90 . . 116, 117 Shotts Iron Co. v. Deas, 8 Sess. Cas. (Ser. 4) 530 244 v. Inglis, 7 App. Cas. 528 270, 272 Shrewsbury v. Blount, 2 Man. & G. 475 ; 2 Scott, N. R. 588 . . . . 446 v. Gould, 2 B. & Al. 487 222 Sibley v. Minton, 27 L. J. Ch. 53 118, 451, 452, 453 Siddons v. Short, 2 C. P. D. 572 ; 46 L. J. C. P. 795 ; 37 L. T. N. S. 230 311, 351, 352 Silver Valley Mines, In re, 18 Ch. D. 472 ; 45 L. T. N. S. 104 . . . . 425 Sim v. Evans, 23 W. R. 730 5, 570 Simmins v. Shirley, 6 Ch. D. 173 ; 46 L. J. Ch. 875 ; 26 W. R. 25 ; 37 L. T. N. S. 121 82 Simmons v. Norton, 7 Bing. 640 ; 5 Moo. & P. 645 ; 9 L. J. (O. S.) C. P. 185 . 51 Simpson v. Ingleby, 20 W. R. 587, 993 ; 26 L. T. N. S. 543 ... 217, 220 v. Telwright, 2 Lutw. 1241 371 Sivrightu. Straiton Co., 6 Sess. Cas. (Ser. 4)1208 216 Sleeman v. Barrett, 2 H. & C. 934 ; 33 L. J. Ex. 153 ; 10 Jur. N. S. 476 ; 12 W. R. 411 ; 9 L. T. N. S. 834 ; 3 N. R 484 520, 609 Slingsby v. Barnard, 1 Rolles R. 430, pi. 24 298 Small v. Attwood, 3 Y. & C. Eq Ex. 105, 501 ; 8 L. J. Ex. Eq. 67 ; 2 Jur. 246 199 Smart v. Jones, 15 C. B. N. S. 717 ; 33 L. J. C. P. 154 ; 10 Jur. N. S. 678 ; 12 W. R. 430 ; 10 L. T. N. S. 271 ; 3 N. R. 648 . . . . 251, 252 v. Morton, 5 E. & B. 30 ; 24 L. J. Q. B. 260 ; 1 Jur. N. S. 825 ; 25 L. T. 97 294, 304, 306, 308, 320, 332, 333, 351 Smith, Be, 10 Ch. 79 ; 23 W. R, 297 43, 44, 45, 54, SO, 110, 111, 127, 128, 160, 161 v. Collyer, 8 Ves. 89 539 > 54 ° v. Darby, L. R. 7 Q. B. 716 ; 42 L. J. Q. B. 140 ; 20 W. R. 982 ; 26 L. T N. S. 762 26, 268, 269, 296, 304, 305, 332, 333 l xxx TABLE OF CASES. PAGE Smith v. Fletcher, L. R. 9 Ex. 64 ; 43 L. J. Ex. 70 ; 31 L. T. X. S. 190 ; S. C. L R 7 Ex. 305 ; 41 L. J. Ex. 193 ; 20 W. R. 987 ; 27 L. T. N. S 164 • see Fletcher v. Smith 303, 309, 382, 401, 405, 406, 408, 409, 413, 414 „. Gatewood, Cro. Jac. 152 90, 91, 94, 96, 97 „. Great Western Ry. Co., 3 App. Cas. 165 ; 47 L. J. Ch. 97 j 37 L. T. N. S 645 • see Great Western Ry. Co. v. Smith 8, 20, 169, 343, 344, 345, 346, 352, 354 „ Kenrick 7 C. B. 515 ; 13 Jur. 362 ; 12 L. T. 556 303, 309, 382, 401, 403, 404, 406, 407, 409, 413 „. Lloyd, 9 Exch. 574 ; 23 L. J. Ex. 194 ; 2 W. R. 271 ; 22 L. T. 289 26, 528 v. Martin, 2 Wms. Saund. 802 299 „. Morris, 2 B. C. C. 311 ; 2 Dick. 697 217 v Musorave [see Fletcher v. Smith) 410 v Stocks, 10 B. & S. 701 ; 38 L. J. Q. B. 306 ; 17 W. R. 1135 ; 20 L. T. N. S. 740 41, 524, 525, 528 „. Thackerah, L. R. 1 C. P. 564 ; 35 L. J. C. P. 276 ; 12 Jur. X. S. 545 ; 14 W. R. 832 ; 14 L. T. N. S. 761 288 Smith's Case, 11 Ch. D. 579 ; 48 L. J. Ch. 480 ; 27 W. R. 845 ; 40 L. T. N. S. 63, 572 45 ° Smithson v. Powell, 20 L. T. 105 189 Snailbeach Mining Co. v. Forden Guardians, 35 L. T. N. S. 514 . . 561, 567 Solomon v. Vintners Co., 4 H. & N. 585 ; 28 L. J. Ex. 370 ; 5 Jur. N. S. 1177 ; 7 W. R. 613 ; 33 L. T. 224 . 287, 294, 315 South Lady Bertha Mining Co., Re, 2 J. & H. 376 ; 32 L. J. Ch. 92 ; 9 Jur. N. S. 170 ; 10 W. R. 687 ; 7 L. T. N. S. 20 . . . 416, 418, 450, 455, 467, 478 Sowerby v. Fryer, 8 Eq.. 417 ; 38 L. J. Ch. 617 ; 17 W. P.. 879; 20 L. T. X. S. 868 79, 80, 81, 82 Spencer v. Scurr, 31 Beav. 334 ; 31 L. J. Ch. 808 ; 9 Jur. N. S. 9 ; 10 W. R. 878 3, 23, 24, 46, 48, 51 Spenser's Trusts, 37 L. J. Ch. 18 ; 16 W. R. 306 ; 17 L. T. X. S. 200 . . 159 Spon Lane Co. v. Baker, 48 L. J. M. C. 25 ; sec R. v. Spon Lane Co. . . . 596 Spoor v. Green, L. R. 9 Exch. 99 ; 43 L. J. Ex. 57 ; 22 W. R. 547 ; 30 L. T. X. S. 393 70; 71, 202, 210, 288, 292 Stafford v. Coyney, 7 B. & C. 257 ; 5 L. J. (O. S.) K. B. 285 . . 361, 373, 378 Staffordshire Canal Co. v. Birmingham, &c. Co., L. R. 1 H. L. 254 ; 35 L. J. Ch. 757 ; S. C. 11 Jur. X. S. 71 ; 13 W. R. 130, 358 ; 11 L. T. X. S. 364, 647 393 v. Hallen, 6 B. & C. 317 ; 9 D. & Ry. 266 ; 5 L. J. (O. S.) K. B. 154 318 Stanford v. Hurlstone, 9 Ch. 116 ; 22 W. R. 422 ; 30 L. T. X. S. 140 . . . 539 Stanley v. Colthurst, 10 Eq. 259 ; 39 L. J. Ch. 650 ; 18 W. R. 969 ; 23 L. T. N. S. 761 55 Stannaries, Case of, 12 Co. Rep. 9 441 Stansell v. Jollard, cited 1 Selw. X. P. 11th ed. 457 298, 315 Stansfield v. Habergham, 10 Ves. 273 44 St. Aubyn v. St. Aubyn, 1 Dr. & Sm. 611 ; 30 L. J. Ch. 917 ; 5 L. T. X. S. 519 249, 266 Steigenberger v. Carr, 3 M. & Gr. 191 ; 3 Scott X. R. 466 ; 10 L. J. C. P. 253 123, 458 Stepney v. Chambers, W. X. 1866, p. 401 24. 51 Stevens v. Guppy, 3 Russ. 171 ; 6 L. J. (O. S.) Ch. 164 192 Steward v. Blakeway, 6 Eq. 479 ; 16 W. R. 1104 ; S. C. 4 Ch. 603 137, 138, 139, 259, 263, 264 TABLE OF CASES. lxxxi PAGE St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642 ; 35 L. J. Q. B. 66 ; 11 Jut. N. S. 785 ; 13 W. It. 1083 ; 12 L. T. N. S. 776 272 Stile v. Butts, Cro. Eliz. 434 91, 96 Stockman v. Whither, 1 Roll. Rep. '86 77 Stockport Waterworks Co. v. Potter, 3 H. & C. 300 ; 10 Jur. N. S. 1005 ; 10 L. T. N. S. 748 ; 4 N. R. 441 3S4 Story v. Windsor, 2 Atk. 630 57, 524, 526, 532 Stott v. Dickinson, 34 L. T. N. S. 291 570, 598, 599 Stoughton v. Leigh, 1 Taunt. 402 . . . 23, 25, 27, 46, 48, 52, 256, 262, 263 Stourbridge Navigation Co. v. Dudley, 3 E. & E. 409 ; 30 L. J. Q. B. 108 ; 7 Jur. N. S 329 ; 9 W. R. 158 ; 3 L. T. N. S. 449 327 Stoutfil's Case, 2 Mod. 77 . 567 Strachy v. Francis, 2 Atk. 217 79, 80, 81 Strelley v. Pearson, 15 Ch. D. 113 ; 49 L. J. Ch. 406 ; 28 W. R. 752 ; 43 L. T. N. S. 155 192, 197, 215, 230, 243 Strode v. Little, 1 Vern. 58 ; 1 Eq. Cas. Abr. 38, pi. 7 . . . 521, 532 Stroud & the East & West India Docks & Birmingham Rly. Co. , In re, 8 C. B. 502 ; 19 L. J. C. P. 117 ; 14 L. T. 291 257 Stroyan v. Knowles, 6 H. & N. 454 ; 30 L. J. Ex. 102 ; 9 W. R. 615 ; 3 L. T. N. S. 746 292, 301, 302, 351 Stuart v. Bute, 1 Dow, 86 266 Sturges v. Bridgeman, 11 Ch. D. 852 ; 48 L. J. Ch. 785 ; 28 W. R. 200 ; 41 L. T. N. S. 219 . 317 Sutclife v. Booth, 32 L. J. Q. B. 136 ; 9 Jur. N. S. 1037 392 Sutton v. Clarke, 6 Taunt. 29 411 v. Weeley, 7 East, 442 259, 260 Swindell v. Birmingham Canal Co., 9 C. B. N. S. 241 ; 29 L. J. C. P. 364 ; 7 Jur. N. S. 190 213, 227, 346 Swindon, &c. Co. v. Wilts, &c. Co., L. R. 7 H. L. 697 ; 45 L J. Ch. 638; 24 W. R. 284 ; 33 L. T. N. S. 513 ; see Wilts, &c. Co. v. Swindon, &c. Co. . 383 Sybray v. White, 1 M. & W. 435 ; Tyrw. & Gr. 746 ; 5 L. J. Ex. 173 285, 505, 506, 515 Tabbekt, Ex parte, 6 Ves. 428 44 Talargoch Co. v. St. Asaph, L. R. 3 Q. B. 478 ; 9 B. & S. 210 ; 37 L. J. M. C. 149 ; 16 W. R. 860 ; 18 L. T. N. S. 711 . . . . 558, 562, 563, 564 Talbot v. Ford, 13 Sim. 173 ; 6 Jur. 843 247 Tanistry Case, Davys's Rep. 28 ......... . 90 Tatam v. Williams, 3 Ha. 347 113, 121, 137, 139, 258, 262 Taylor v. A. -G., 8 Sim. 413 522 v. Evans, 1 H. & N. 101 ; 25 L. J. Ex. 269 556 v. Ifill, 8 L. T. N. S. 148 ; 1 N. R. 566 468 v. Mostyn, 23 Ch. D. 583 ; 51 L. J. Ch. 696 ; 31 W. R. 3, 6S6 ; 46 L. T. N. S. 648 ; 48 ib. 715 . .... 171,172 v. Neville, 3 Atk. 384 198 v. Parry, 1 Scott N. R. 576 ; 1 M. & Gr. 604 ; 9 L. J. C. P. 298 41, 214, 532 v. Shafto, 8 B. & S. 228 ; 16 L. T. N. S. 205 . . . . 210, 304, 323 v. St. Helens, 6 Ch. D. 264 ; 46 L. J. Ch. 857 ; 25 W. R. 885 ; 37 L. T. N. S. 253 . 26, 208, 274, 296, 380, 389, 390 v. Whitehead, Doug. 745 372 Thew v. Wingate, 10 B. & S. 714, n. . . ' . 41, 524, 525, 526, 528, 529, 532 Thicknesse v. Bromilow, 2 Cr. & J. 425 1 25 v. Lancaster Canal Co., 1 M. & W. 472 ; 8 L. J. Ex. 49 : 3 Jur. 11 355, 377 / lxxxii TABLE OF CASES. PAGE Thomas v. Atherton, 10 Ch. D. 185 ; 48 L. J. Ch. 370 ; 40 L. T. N. S. 77 119, 120, 214, 228, 481, 530, 535, 543 v. Birmingham Canal Co., 49 L. J. Q. B. 851 ; 43 L. T. 435 . . . 413 v. Clark, 18 C. B. 662 ; 25 L. J. C. P. 309 . . . 457, 458, 467, 468 v. Hobler, 4 De G. F. & J. 199; 8 Jur. N. S. 125'; 5 L. T. N. S. 564 444, 445 v. Jones, 1 Y. & C. C. C. 510 30, 532, 540 v. Oakley, 18 Ves. 184 532, 539, 540, 544 Thomson v. Gordon, 7 Sess. Cas. (Ser. 3) 687 244 Thornycroft v. Crockett, 16 Sim. 445 ; 12 Jur. 1081 ; 12 L. T. 288 . . . 84, 85 Thursby v. Thursby, 19 Eq. 395 ; 44 L. J. Ch.. 289 ; 23 W. R. 500 ; 32 L. T. N. S. 187 46, 49, 50, 66, 169 Tippet v. Johns, Tapping, Read win Prize Essay, 187 . . 444, 455, 466, 467, 474 Tipping v. St. Helen's Smelting Co., 1 Ch. 66 272 Tipton Green Colliery Co. v. Tipton Moat Colliery Co., 7 Ch. D. 192 ; 47 L. J. Ch. 152 ; 26 W. R. 348 84 Toll v. Lee, 4 Exch. 230 ; 18 L. J. Ex. 364 ; 13 Jur. 614 ; 13 L. T. 325 456, 457, 466 Tolson v. Sheard, 5 Ch. D. 19 ; 46 L. J. Ch. 815 ; 25 W. R. 667 ; 36 L. T. N. S. 756 168 Toppin v. Lomas, 16 C. B. 145 ; 24 L. J. C. P. 144 ; 3 W. R. 446 ; 25 L. T. 129 464 Tottenham v. Byrne, 12 Ir. C. L. Rep: 376 528 Townley v. Gibson, 2 T. R. 701 21, 36, 37, 74, 87, 205 Tracy v. Tracy, 1 Vern. 23 ; 1 Eq. Ca. Abr. 399, pi. 1, 2 52, 61 Tredinnick v. Oliver, 5 H. & N. 780 ; 29 L. J. Ex. 466 462 Tredwen v. Bourne, 6 M. & W. 461 ; 9 L. J. Ex. 290 ; 4 Jur. 747 57, 444, 456, 457 Trelawny v. Williams, 2 Vern. 483 417, 424, 431, 440 Tretoil, &c, Mining Co., He, 2 J. & H. 421 ; 10 W. R. 338; 6 L. T. N. S. 154 455, 478 Trevor- Roper, Re, Set. 1258 (V. C. W. 12 June, 1863) 134 Trotter v. Maclean, 13 Ch. D. 574 ; 49 L. J. Ch. 256 ; 28 W. R. 244 ; 42 L. T. N. S. 118 196, 532, 534, 535, 536, 543 Trower v. Chadwick, 3 Scott, 699 ; 3 Bing. N. C. 334 ; 6 L. J. C. P. 47 ; see Chadwick v. Trower 300, 302 Tucker v. Linger, 8 App. Cas. 50S ; 52 L. J. Ch. 941 ; 32 W. R. 40 ; S. C. 21 Ch. D. 18 ; 51 L J. Ch. 713 ; 30 W. R. 578 ; 46 L. T. N. S. 198, 894 . 4, 5, 12, 15, 17, 46, 54, 55, 58, 534, 535 Tully v. Halsall, 1 Wood, 74 521 Turner v. Borlase, 11 Sim. 17 : 10 L. J. Ch. 26 451, 459 v. Hardcastle, 11 C. B. N. S. 683; 31 L. J. C. P. 193 ; 5 L. T. N. S. 748 260 v. Harvey, Jac. 169 194 v. Hill, 11 Sim. 1 451, 459 v. Mirfield, 34 Beav. 390 398, 399 v. Tyacke, 11 Sim. 16 451 v. Wright, 1 Joh. 740 ; 2 De G. F. & J. 234 ; 29 L. J. Ch. 470, 598 ; 6 Jur. N. S. 647 ; 8 W. R. 387, 675 ; 2 L. T. N. S. 277, 649 . . 44, 45 Tyne Co. v. Wallsend, 46 L. J. M. C. 185 ; 35 L. T. N. S. 854 . . . . 559 Tyrwhitt v. Wynne, 2 B. & Al. 554 26, 36 Tyson v. Smith, 6 A. & E. 745 ; 9 ib. 406 ; 1 N. & P. 784 9o' 91 Umfreville v. Johnson, 10 Ch. 580 ; 44 L. J. Ch. 752 ; 23 W. R. 844 . . 272 Underbill v. Longridge, 29 L. J. M. C. 65 ; 6 Jur. N. S. 221 . . . . 602 United Land Co. v. Great Eastern Rly. Co., 10 Ch. 586 ; 44 L. J. Ch. 685 ; 23 W. R. 896 ; 33 L. T. N. S. 292 374 TABLE OF CASES. lxXXlii PAGE United Merthyr Co., In re, 15 Eq. 46 ; 21 W. R. 117 . . . . 534, 536, 538 Upperton v. Nickolson, 6 Ch. 436 ; 40 L. J. Ch. 401 ; 19 W. R. 733 ; 25 L. T. N S. 4 ; S. C. 10 Eq. 228 ; 39 L. J. Ch. 758 ; 23 L. T. N. S. 343 . . 188 Usbome v. Usborne, 1 Dick. 75 Valentine v. Penny, Noy, 145 .... .... Van Mining Co. v. Llanidloes, 1 Ex. D. 310 ; 45 L. J. M. C. 138 ; 34 L. T. N. S. 692 2 . 431 - 611, 565 Vane v. Lord Barnard, 2 Vein. 738 ; 1 Eq. Ca. Abr. 399, pL 3 ; Prec. Ch. 454 ; Gilb. Eq. Rep. 127 ; 1 Salk. 161 63 Vaughan v. Taff Vale Rly. Co., 5 H. & N. 679 ; 29 L. J. Ex. 247 ; 6 Jur. N. S. 899 ; 8 W. R. 549 ; 2 L. T. N. S. 394 *U Vice v. Anson, 7B.&C. 409 ; 1 M. & Ry. 113 ; 6 L. J. (O. S.) K. B. 24 457, 458, 464 v. Fleming, 1 Y. & J. 227 457 v. Thomas, Smirke, 416, 417, 428, 429, 430, 431, 432, 433, 436, 441, 521, 523, 524, 532 Viner v. Vaughan, 2 Beav. 466 ; 4 Jur. 332, 362 . . . . 23, 25, 46, 51, 61 Vivian v. Jegon, L. R. 3 H. L. 285 ; 37 L. J. C. P. 313 ; 19 L. T. N. S. 218 ; see Jegon v. Vivian (2) . . . • . . • 136, 169, 171, 172 v. Movvatt, 8 L. T. 480 444 . 45 9 Waddell v. Buchan, 6 Sess. Cas. (ser. 3) 690 28 Wainman v. Rosse, 2 Exch. 800 u Wake v. Hall, 8 App. Cas. 195 ; 52 L. J. Q. B. 494 ; 31 W. R. 585 ; 48 L. T. N. S. 834 ; S. C. 7 Q. B. D. 295 ; 50 L. J. Q. B. 545 ; 44 L. T. N. S. 42 267, 274, 501, 508, 509, 514, 515, 516, 517, 518 v. Redfearn, 43 L. T. N. S. 123 501, 503, 514, 515 Wakefield v. Buccleuch, 4 Eq. 613 ; 36 L. J. Ch. 179 ; 15 W. R. 247 ; 15 L. T. N . S. 462 21, 22, 26, 76, 103, 156, 205, 290, 298, 307, 335 Walhalla Gold Co. v. Mulcahy, 40 L. J. P. C. 41 522 Walker v. Bartlett, 17 C. B. 446 ; 18 C. B. 845 ; 25 L. J. C. P. 156, 263 ; 2 Jur. N. S. 261 ; 4 W. R. 300 ; 27 L. T. 104 185, 442, 463, 464, 466, 467 v. Fletcher, 3 Bli. 172, n 415, 540, 541, 542 „ Jefferys, 1 Ha. 341 ; 11 L. J. Ch. 209 ; 6 Jur. 336 27, 122, 194, 217, 218, 229 Walkham United Mines, In re, W. N. 1882, p. 134 425 Wall v. Dunn, Set. 202 353, 542 Wallace's Settled Estates, W. N. 1869, p. 66 164 Wallis v. Harrison, (1) 4 M. & W. 538 ; 8 L. J. Ex. 44 ; 2 Jur. 1019 . . . 251 v . (2) 11 L. J. Exch. 440 364 Walter v Selfe, 4 De G. & Sm. 315 ; 20 L. J. Ch. 433 ; 15 Jur. 416 ; 17 L. T. 103 270, 271, 272 Walters v. Morgan, 3 De G. F. & J. 718 ; 4 L. T. N. S. 758 . . . 194, 196 u North Coal Co., 5 De G. M. & G. 629 ; 25 L. J. Ch. 633 ; 2 Jur. N. S. 1 ; 4 W. R. 140 ; 26 L. T. 167 240 v. Pfeil, Moo. & M. 362 ■ 302, 318 Wanstead Local Board v. Hill, 13 C. B. N. S. 479 ; 32 L. J. M. C. 135 ; 9 Jur. N. S. 972 ; 7 L. T. N. S. 744 271 Ward v. Day, 4 B. & S. 337 ; 33 L. J. Q. B. 3 ; 10 Jur. N. S. 173 ; 11 W. R. 948 ; 2 N. R. 444 ; S. C. 5 B. & S. 359 ; 33 L. J. Q. B. 254 ; 12 W. R. 829 ; 10 L. T. N. S. 578 ; 4 N. R. 171 2 H 25 5 /2 S. 145 522 452 668 . . . . 105, 382, 384 169, 266 64 48 L. T. N. S. 859 . . . 167 lxxxiv TABLE OF CASES. PAGE Wardlaw v. Wardlaw's Trustees, 2 Sess. Cas. (Ser. 4) 368 48 Wardle v. Brocklehurst, 1 E. & E. 1058, 1065 ; 29 L. J. Q. B. 145 ; 6 Jur. N. S. 319 ; 8 W. R. 241 ; 1 L. T. N. S. 519 394 Warrick v. Queen's Coll. Oxford, 6 Oh. 16 ; 40 L. J. Ch. 780 ; 19 W. R. 1098 ; 25 L T N S. 254 ; S. C. 10 Eq. 105 ; 39 L. J. Ch. 636 ; 18 W. R. 719 ; 23 L. T. N. S. 63 90 > 91 > 92 > 94 > 95 > 96 ' 98 Waterpark v. Austen, 1 Jones, 627, n Wat kins v. Caddel, cited 1 B. C. C. 176 . . • • • • 259, 260 Watson v. Eales, 23 Beav. 294 ; 26 L. J Ch. 361 ; 3 Jur. N. S. 53 ; 28 L. T. 243 118, 451, 453, 454, 466, 468 „. Spratley, 10 Exch. 222 ; 24 L. J. Ex. 53 ; 2 W. R, 627 ; 22 L. T. 227 184, 185, 249, 251, 252, 443, 449, 463, 464, 465, 466, 470, 471 Waynes, &c, Co. v. Powell's, &c.', Co.', W. N. 18S0, pp. 141, 159 . . . 542 Weaver v. Floyd, 21 L. J. Q. B. 151 609 Webb v. Bird, 10 C. B. N. S. 268 ; 30 L. J. C. P. 384 ; 8 Jur. N. S. 621 ; 9 W. R. 899 ; 4 L. T. N. S. 445 315 v. Giddy, 3 App. Cas. 908 ; 47 L. J. P. C. 71 ; 38 L. T. N. S. 822 . . 522 v. Paternoster, 2 Roll. Rep. 143 . . 251 v. Wright, 8 App. Cas. 318 ; 49 L. T. N. Weekes v. Snell, 23 L. T. 224 . Weeks v. Heward, 10 W. R. 557 ; 7 L. T. N. S Weir v. Durham, 8 Sess. Cas. (Ser. 3) 725 Wellesley v. Wellesley, 6 Sim. 497 Wells, Re, W. N. 1883, p. Ill ; 31 W. R. 764 v , Parker, 1 T. R. 34 ; see Parker v. Wells . . . 259, 260, 261 Welhvood v. Wellwood, 11 D. 248 216 Welsh Potosi Co., Re, 27 L. J. Ch. 311 ; 4 Jur. N. S. 577 ; 31 L. T. 129 442, 448, 455 Wentworth v. Turner, 3 Ves. 3 . ... 51, 56, 162 West Cumberland, &c, Co. v. Kenyon, 11 Ch. D. 782; 48 L. J. Ch. 793; 40 L. T. N. S. 703 ; S. C. 6 Ch. D. 773 ; 46 L. J. Ch. 850 388, 404, 407, 408 West Jewell Mining Co., Re, Set. 1061 423,426 Westminster Bryrnbo Coal and Coke Co. v. Clayton, 36 L. J. Ch. 476 401, 403, 414, 415 Whaley v. Braucker, 105 Jur. N. S. 535 541 v Laing, 2 H. & N. 476 ; 26 L. J. Ex. 327 ; 5 \Y. R. 834 ; 29 L. T. 312 ; see Laing v. Whaley 384, 390, 392, 398, 399 Whalley v. Ramage, 10 W. R. 315 231 v. Whalley, 2 De G. F. & J. 310 121,122 Wheal Anne Co., In re, 30 Beav. 601 ; 10 W. R. 330 ; 6 L. T. N. S. 38 . 455, 478 Wheal Ludcott, &c, Co., Re The, 17 W. R. 745 ; nam. Jackson's Case, 21 L. T. N. S. 67 Wheatley v. Westminster Bryrnbo, &c, Co., 2 Dr. & Sm. 347 ; 11 Jur. N. S. 232 ; 13 W. R. 400 ; 11 L. T. N. S. 728 ; S. C. 9 Eq. 538 : 39 L. J. Ch. 175 ; 18 W. R. 162 ; 22 L. T. N. S. 7 . . 62, 198, 218, 220, 229, 230, 232, 233, 248 Wheeldon v. Burrows, 12 Ch. D. 31 ; 48 L. J. Ch. 853 ; 27 W. R. 165 ; 28 ib. 196 ; 39 L. T. N. S. 558 ; 41 ib. 327 296, 371 Wheeler v Tootel, Set. 1491, 1502 (V. C. M. 31 July, 1878) . . . 129, 163 Whidborne v. Ecclesiastical Commissioners, 7 Ch. D. 375 ; 47 L. J. Ch. 129 ; 37 L. T. N. S. 346 147, 275, 283, 284, 295 Whitchurch v. Holworthy, 4 M. & S. 340 34, 74, 102 White v. Dixon (1), 2 Sess. Cas. (Ser. 4) 904 396 v. (2), 9 Sess. Cas. (Ser. 4) 375 ; see Dixon v. White ... 337 v. Jameson, 18 Eq. 303 ; 22 W. R. 761 251, 272, 351 453 TABLE OF CASES. lxxxv . 4 L. T. N. S. 818 . 13 : 48 L. J. Ex. 254 27 W. R. 94 White v. Nowlan, 1 Hog. 21 . v. Walsh, 1 Jones, 626, n. . Whitehead v. Bennett, 9 W. R. 626 v. Holdsworth, 4 Ex. D. T. N. S. 638 v. Parks, 2H.&N. 870 ; 27 L. J. Ex. 169 . Whitehouse v. Bayley, 34 L. T. N. S. 93 v. Birmingham Canal Co., 27 L. J. Ex. 25 ; 30 L. T. 156 v. Fellowes, 10 C. B. N. S. 765 ; 30 L. J. C. P. 305 ; 9 W. 4 L. T. N. S. 177 PAGE 53 . . 53 219, 220, 240 39 L. . . 584 384, 387, 389 . . 306 411, 412 R. 557 ; 289, 411, 412 v. Wolverhampton Ry. Co., L. R. 5 Exch. 6 ; 39 W. R. 147 ; 21 L. T. N. S. 558 . Whitfield v. Bewit, 2 P. Wms. 240 ; 2 Eq. Ca. Abr. 589, pL 1 Whitmore v. Mason, 2 J. & H. 204 ; 31 L. J. Ch. 433 ; 10 W. N. S. 631 L. J. Ex. 1 ; 18 . 346, 347 51, 54, 59 R. 168 ; 5 L. T. 139, 258 523 188 . . 11, 355 5 W. . 49, 50, 66 531. 532, 534 139, 140, 141 298 . . 109 L. T. . 110, 111 Whittingham v. Andrews, 1 Salk. 255 ; 4 Mod. 143 ; 1 Show. 364 ; nom. Andrews v. Whittingham, Carth. 277 ; nom. Ambrose v. Whittingham, Comb. 201 . Whyte v, Lee, 6 Sess. Cas. (Ser. 4) 699 Wiekham v. Hawker, 7 M & W. 63 ; 10 L. J. Ex. 153 Wightwick v. Lord, 6 H. L. C. 217 ; 26 L. J. Ch. 825 ; 3 Jur. N. S. 699 R. 713 ; 29 L. T. 303 ; see Lord v. Wightwick .... Wild v. Holt, 9 M. & W. 672 ; 11 L. J. Ex. 285 . . . .41 v. Milne, 26 Beav. 504 138 Wilde v. Minsterley, 2 Rolle's Abr. 564, tit. Trespass (I), pi. 1 Wilkes v. Broadbent, 1 Wils. 63 ; 2 Str. 1224 Wilkinson v. Haygarth, 12 Q. B. 837 ; 16 L. J. Q. B. 103 ; 11 Jur. 104 ; 465 v. Proud, 11 M. & W. 33 ; 12 L. J. Ex. 227 ; 7 Jur. 284 94, 95, 202, 523, 529 Wilkinson's Mortgaged Estates, In re, 13 Eq. 634 ; 41 L. J. Ch. 392 . . . 136 Willesford v. Watson, 14 Eq. 572 ; 20 W. R. 32 ; S. C. 8 Ch. 473 ; 42 L. J. Ch. 447 ; 21 W. R. 350 ; 28 L. T. N. S. 428 248 Williams v. Attenborough, T. & R. 70 . . . . . . .57, 191, 532 v. Bagnall, 15 W. R. 272 . 203, 294, 296, 301, 304, 305, 332, 333, 336 v. Bolton, 1 Cox, 72 58, 60, 61 v. Groucott, 4 B. & S. 149 ; 9 Jur. N. S. 1237 ; 11 W. R. 886 ; 8 L. T N. S. 458 ; 2 N. R. 419 v. Jersey, 1 Cr. & Ph. 91 ; 10 L. J. Ch. 149 ; 5 Jur. 426 v. Raggett, 46 L. J. Ch. 849 ; 25 W. R. 874 ; 37 L. T. N. S. 96 v. Rowlands, 30 Beav. 302 ; 31 L. Ch. 265 ; 8 Jur. N. S. 88 ; 10 W. R 186 ; 5 L. T. N. S. 658 116 v. Williams, 15 Ves. 419 Williamson v. Wootton, 3 Dr. 210 Willmott v. Barber, 15 Ch. D. 96 ; 49 L. J. Ch. 792 ; 28 W. R. 911 ; 43 L. T, N. S. 95 Willway's Trusts, Be, 32 L. J. Ch. 226 ; 1 N. R 469 Wilson v. Bragg, 8 Bac. Abr. 428 v. Douglas, 7 Sess. Cas. (Ser. 3) 112 v. Grey, 3 Eq. 117 ; 36 L. J. Ch. 62 . v. Mackreth, 3 Burr. 1824 v. Merry, L. R. 1 Sc. & D. 326 ; 19 L. T. N. S. 30 . v. Page, 4 Esp. 71 v. Waddell, 2 App. Cas. 95 ; 35 L. T. N. S. 639 v. Willes, 7 East, 121 285 273 537 139, 140 45, 56 182, 187 356 134 51, 52 197 147, 540 253 612 93 235, 237, 245, 269, 403. 404, 405, 408 92, 102 lxXXvi TABLE OF CASES. PAGE Wilts, &c. Co. v. Swindon, &c. Co., 9 Ch. 451 ; 43 L. J. Ch. 393 ; 22 W. R. 212, 444 ; 29 L. T. N. S. 722 ; 30 ib. 443 ; see Swindon, &c. Co. v. Wilts, &c. Co 3S3 Wimbledon & Putney Commons Cons. v. Dixon, 1 Ch. D. 362 ; 45 L. J. Ch. 353 ; 24 W. R. 466 ; 33 L. T. N. S. 679 . 368, 369, 372, 373, 374, 375, 378 Winchester v. Knight, 1 P. Wms. 406 ; 2 Eq. Ca. Abr. 226, pi. 7 34, 35, 72, 73, 74, 75, 98. 101, 544 v. Wolgar, 3 Swanst. 493, n 78 Wishart v. Wyllie, 1 Macq. 389 30 Wither v. Winchester, 3 Mer. 421 78, 79, 82 Womersley v. Church, 17 L. T. N. S. 190 398 Wood v. Lake, Sayer, 3 251 v. Leadbitter, 13 M. & W. 838 ; 14 L. J. Ex. 161 ; 9 Jur. 187 249, 251, 252 v. Morewood, 3 Q. B. 440, n 531, 534 v. Pattesou, 10 Beav. 541 160, 162, 168 v. Sutcliffe, 2 Sim. N. S. 163 ; 21 L. J. Ch. 253 ; 16 Jur. 75 ; 18 L. T. 194 383, 396 v. Waud, 3 Exch. 748 ; 18 L. J. Ex. 305 ; 13 Jur. 472 ; 13 L. T. 212 381, 382, 384, 390, 392, 393, 394, 396, 397, 399, 401, 402 Woodall v. Hingley, 14 L. T. N. S. 167 301, 302, 315, 318 Woolley v. A.-G. of Victoria, 2 App. Cas. 163 ; 46 L. J. P. C. 18 ; 25 W. R. 852 ; 36 L. T. N. S. 121 41, 522 Worcester's Case, 6 Co. Rep. 37a ......... 176 Wren v. Kirton, 8 Ves. 502 57, 191 Wright v. Atkyns, T. k R. 143 44 v. Pitt, 12 Eq. 408 ; 40 L. J. Ch. 558 ; 25 L. T. N. S. 13 225, 226, 240, 254, 378, 501, 503, 509, 540 v. Williams, 1 M. & W. 77 ; 5 L. J. Ex. 107 396 Wyatt v. Harrison, 3 B. & Ad. 871 ; 1 L. J. K. B. 237 . . . 294, 298, 315 Wyld's Case, 1 Mac. & G. 1 ; 1 H. & T. 125 ; 18 L. J. Ch. 139 ; 13 Jur. 133 452, 455, 478 Wynget v. Heathcote, cited in Bentley v. Bates, 4 Y. & C. Eq. Ex. 187 . . Ill Wynn's Devised Estates, In re, 16 Eq. 237 ; 43 L. J. Ch. 95 ; 21 W. R. 695 ; 28 L. T. N. S. 615 134 Wynne v. Forrester, 5 C. P. D. 361 ; 48 L. J. M. C. 140 ; 27 W. R. 820 ; 40 L. T. N. S. 524 585, 594 Wyrley Canal Co. v. Bradley, 7 East, 368 310, 327, 338 Young, Ex parte, 50 L. J. Ch. 221 ; 43 L. T. N. S. 725 . . . 492, 493, 495, 496 TABLE OF STATUTES. 20 Hen. 3, c. 4 (Merton) 6 Ed. 1, c. 5 (Waste) 33 Edw. 1 (Stann. Charter) 23 Hen. 8, c. 8 (Tinworks) 27 Hen. 8, c. 10 (Uses) . c. 23 (Tinworks) 13 Eliz. c. 10 (Restraining) c. 20, ditto 14 Eliz. c. 11, ditto . c. 14, ditto 43 Eliz. G. 2 (Rating) . 21 Jac. 1, c. 16 (Limitat.) . 16 Car. 1, c. 15 (Stannaries) 14 Car. 2, c. 12 (Paup. Settl.) 29 Car. 2, c. 3 (Frauds) . 1 W. & M. c. 30 (Royal Mines) 5 W. & M. c. 6, ditto 1 Anne, St. 1, c. 7 (Crown Lands) St. 2, c. 22 (Workmen) 4 & 5 Anne, c. 3 (Account) 12 Geo. 1, c. 34 (Wages) . . 9 Geo. 2, c. 36 (Mortmain) 13 Geo. 2, c. 8 (Workmen) . 20 Geo. 2, c. 19 (Repealed) 22 Geo. 2, c. 27 (Workmen) . 6 Geo. 3, c. 25 (Repealed) . 9 Geo. 3, c. 29 (Mai. Inj. Scot.) 17 Geo. 3, c. 56 (Workmen) 35 Geo. 3, c. 101 (Paup. Settl.) 38 Geo. 3. c. 5 (Land Tax) 39 Geo. 3, c. 21 (Land Tax Red.) 39 & 40 Geo. 3, c. 77 (Larceny) 41 Geo. 3, c. 109 (Incl.) 42 Geo. 3, c. 116 (Land Tax Red.) 46 Geo. 3, c. 71 (Ireland) . 55 Geo. 3, c. 134 (Royal Mines) c. 184 (Stamps) . 56 Geo. 3, c. 125 (Riot Destr. Scotland) 57 Geo. 3, c. 100 (Land Tax Red.) c. 122 (Wages) 59 Geo. 3, c. 86 (Dean Forest) PAGE 76, 150, 151 . . 56 . 417, 424 435, 439 250, 528, 529 435, 439 78, 80 . 78, 80 78, 80 . 78, 80 557, 558, 563 63, 288, 300, 529, 542, 543, 544 416, 418 568 183, 185, 196, 263, 463, 464 40 . 40 . . 145 . 610 . . 101 . 610 147, 264, 265, 266, 475 . 610 . . 610 . 610 . . 610 . 550 . . 610 . 568 . . 551 . 147 . . 545 22 371, 376, 402 181, 280, 385 . . 40 . 211, 248 . . 550 . 147 . . 610 480, 486, 487 116 lxxxviii TABLE OF STATUTES. 3 Geo. 4, c. 126 (Highw. Tump.) 4 Geo. 4, c. 34 (Repealed) 6 Geo. 4, c. 57 (Paup. Settl.) . 7 & 8 Geo. 4, c. 24 (Higliw. Tump.) c. 31 (Hundred Liab.) . 10 Geo. 4, c. 50 (Crown Lds. ) 11 Geo. 4 & 1 Will. 4, c. 65 (Infants) 1 & 2 Will. 4. c. 37 (Truck) . 2 & 3 Will. 4, c. 71 (Prescr.) . 97, 99, 314, 315, 317, 356, 3& 4 Will. 4, c. 27 (Lira.) c. 42 (Proc.) . c. 90 (Eating) . 4 & 5 Will. 4, c. 22 (Apport.) c. 42 (Stannaries) 5 & 6 Will. 4, c. 50 (Gen. Highw.) c. 76 (Municip.) 6 & 7 Will. 4, c. 71 (Tithe Conim.) c. 96 (Parocli. Ass.) c. 106 (Stannaries) 1 k 2 Yict. 42 (Dean Forest) 43 (Dean Forest) c. 110 (Judgments) c. 120 (Tin) . 2 & 3 Yict. c. 58 (Stannaries) . c. 62 (Tithe Comra.) 35 (Vol. Enfr.). c. 51 (Highw.) c. 27(EccL). c. 28 (Mai. Inj. Irel.) c. 35 (Income-tax) c. 99 (Repealed) c. 108 (Eccl.) c. 23 (Copyholds) . c. 19 (Bailiffs) . c. 55 (Copyholds) c. 65 (Cornwall) . c. 105 (Cornwall) . 4 & 5 Vict. 5 & 6 Vict. 6 & 7 Vict 7 & 8 Vict PAGE 29, 104, 105, 148, ISO, 371 610 21, 568 29, 105 550 . 106, 145, 173, 499 159, 160, 161, 162, 163 . 608, 609 373, 385, 393, 396, 397, 402, 529 56, 524, 526, 527, 528 . 226, 544, 545 . . 559 . 266 416, 423 219, 272, 273, 371, 558 . . 558 . 567 . . 560 11, 416, 417, 418, 419, 420, 423, 424, 437, 455, 459, 478 499 37, 479, 480, 481, 4S2, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 494, 495, 496, 499 462 . . 441 105, 106, 148, 416, 5, 417, 551 146. 420, 423, 441, 545 . . 567 . 36, 148, 149 105, 106 . 178 . . 558 552, 553, 555, 556 . . 582 176, 177, 178, 520 . - 149 . 416, 428 . . 149 145, 257, 277, 416 33, 39, 277, 278, 310, 371, 376, 385, 403, 416, 422, 423, 437, 460, 529, 530 478 141, 142, 144, 148, 280, 329, 338, 341, 342, 347, 354, 376, 377 c. 19 (Lds. Clauses, Scotland) 280 c. 20 (Rail. Clauses) . 5-8, 18, 29, 107, 142, 143, 182, 202, 250, 303, 329, 330, 331, 338—343, 354, 370, 376, 377, 402, 410, 533 c. 110 (Repealed) 8 & 9 Vict. c. 18 (Lds. Clauses) c. 33 (Rail. CI. Scotch) c. 106 (Property) . c. US (Inch) . 9 & 10 Vict. c. 95 (County Courts) 10 & 11 Vict. c. 15 (Gas Clauses) c. 17 (Wat. Clauses) . c. Ill (Inch) . 9, 339 202 . . . 37, 154, 155, 156, 157, 158, 180, 422 416, 424 312, 354 9, 30, 142, 143, 182, 202, 250, 303, 321, 341—848, 354, 371, 376, 377, 402, 411, 412, 413 153, 158 TABLE OF STATUTES. lxxxix 12 & 13 Vict. 14 & 15 Vict. 11 & 12 Vict. c. 13 (Ireland) c. 43 (Summary Jurisd. ) c. 45 (Repealed) . c. 63 (Repealed) c. 83 (Cornwall) . c. 99 (Incl.) c. 108 (Repealed) c. 53 (Incl.) . c. 70 (Rail. Ireland) . e. 90 (Fines, Ireland) c. 93 (Petty Sess. Ireland) c. 94 (Derbyshire) c. 104 (Eccl.) . 15 & 16 Vict. c. 51 (Cop. Enfr.) c. 76 (C. L. Proc.) c. 81 (Rating) c. 163 (Derbyshire) c. 34 (Income-tax) c. 51 (Succ. Duty) c. 70 (Luu. Reg.). c. 137 (Charities) c. 125 (C. L. Proc.) c. 13 (Lun. Reg.) c. 32 (Stannaries). 11, 1 16 & 17 Vict. 17 & 18 Vict. 18 & 19 Vict. PAGE 181, 280 • 571 477 . 29, 271 '39, 149, 174, 416, 417, 419, 420, 423, 428 154, 158 . 478 154, 38, 500— 36, 149, 150 558, 38, 500- 44, 45, 127, 128, 160, 178, 248, 2 13, 416—428, 437, 450, 451, 455, 459, 478, c. 55 (Col. Victoria) c. 67 (Bills of Exch.) c. 108 (Repealed) c. 121 (Nuisances Removal) c. 124 (Charities). 19 & 20 Vict. c. 120 (Repealed) 20 & 21 Vict. c. 31 (Iucl.) . c. 60 (Bank. Ireland) c. 78 (Repealed) . 21 & 22 Vict. c. 27 (Lord Cairns') . c. 44 (Universities) c. 57 (Eccl.) . c. 60 (Repealed) . c. 94 (Copyholds) . c. 109 (Cornwall Subm.) c. 43 (Incl.) . c. 14 (Income-tax) c. 34 (Petition of Right) . c. 124 (Eccl.) c. 151 (Repealed) c. 154 (Ireland) . 9 (Mortmain) c. 40 (Dean Forest) c. 96 (Larceny) . c. 97 (Mai. Inj.) . c. 105 (Eccl.) . 25 & 26 Vict. c. 52 (Eccl.). c. 53 (Land Reg. ) c. 89 (Comp. 1862) 157 280 574 571 519 177 297 563 560 -519 556 557 161 ISO 541 161 460, 545 521 22 & 23 Vict. 23 & 24 Vict, 24 & 25 Vict. . 420 572, 585, 589, 602 . 600 . • 180 . 129, 161, 164 . . 153 . 259 . . 478 , 146, 147, 176, 177, . . 149, 150, 11, 18, 39, 279, 310, 371, 155, 277, 371, 376, 385, 47, 77, 175, 572, 585, 588, 589, 595, 49, 51, 52, 53, 62, 181, 280, 281, 310, 371, ' 147, 264, 265, 266, 479, 480, 482, 483, 486- 546— 126, 261, 265, 416, 417, 421—427, 442, 447, 448, 450, 457, 462, 463, 476. 477 537 173 520 459 297 403 403 556" 496 178 598 385 475 •499 545 550 176 176 524 443, 478 xc TABLE OF STATUTES. 25 & 26 Vict. 26 & 27 Vict. 27 & 28 Vict. 29 & 30 Vict. 30 & 31 Vict. 28 & 29 Vict. c. c. c. c. c. c. c. c. c. c. c. 31 & 32 Vict. c. c. c. 32 & 33 Vict. c. c. 33 & 34 Vict. c. c. c. c. 34 & 35 Vict. c. c. 35 & 36 Vict. c. 108 (Conf. Sales) . 49 (Cornwall) . 45 (Repealed) 47 (Pen. Serv.) 53 (Summary Proc. Scot.) 57 (Eccl.) . 89 (Greenwich Hospital) 99 (County Courts) . 36 (Income Tax) . 62 (Crown Lds.) 90 (Sanitary) 122 (Metrop. Comm.) 48 (Auctions) 97 (Trusts, Scotland). See Addenda. 103 (Repealed) 607 141 (Repealed) 610 35 (Cornwall) 146 40 (Partition) 138 114 (Eccl.) 78, 79, 176 18 (Lds. CI. 1869) 144, 347 19 (Stannaries) . 416, 417, 419, 420, 422, 423, 426, 427, 448—453, 459, 463, 469, 470, 474—478 71 (Repealed) 261 8 (Forest of Dean— Local) 479, 480, 494 PAGE . 133, 136 12, 18, 145, 146, 174, 422 . 164 546, 547, 549, 550 . 571 147 . 175 416, 425 . 551, 552, 553 30, 173, 279, 310, 371, 403 . 600 . . 153 . 191 36 & 37 Vict. 37 & 38 Vict. c. c. c. c. c. c 38 & 39 Vict, c c, 35 (Apportionment) . 46 (Ireland) 97 (Stamps) 22 (Lun. Irel.) . 85 (Dean Forest) 58 (Bankr. Irel.) . 76 (Coal Mines Reg.) 77 (Met. Mines Reg.) 36 (Crown Lds.) 66(Jud.) 54 (Rating) 57 (Limitations) . 96 (Stat. Rev.) 17 (Explosives) 39 (Metalliferous) . 55 (Pub. Health) . 11, 244, 266 281, 371 211, 248, 467 160, 161, 162 . 480, 481, 484, 485, 486, 492, 493 258 11, 569—607, 612 5, 11, 449, 469, 502, 504, 569—607, 612 173 . 416, 426, 536, 539, 540 511, 557, 558, 559, 560, 561, 564, 565, 566 62, 64, 524, 526, 528, 529 176 569, 598 504, 569, 604 29, 107, 148, 271, 273, 312, 342, 346, 411, 559, 560 c. 66 (Stat. Rev.) 176, 181 c. 77 (Jud.) 524, 537 c. 86 (Workmen Consp.) 610 c. 87 (LandTransf.) 27 c. 90 (Ernp. &Work.) . 39 & 40 Vict. c. 17 (Partitions) c. 56 (Comm. Inch) c. 59 (App. Jur.) c. 62 (Parish) c. 63 (Ireland) . c. 75 (Rivers Poll.) c. 79 (Educat. ) 40 * 41 Vict. c. 18 (Settled Estates) . 77, 610, 611 138 95, 106, 152, 153, 155, 156, 157, 158 426 148 . 65, 241, 281 399 581 129, 133, 135, 159, 160, 161, 162, 163, 166, 167, 168 TABLE OF STATUTES. XC1 40 & 41 Vict. c. 33 (Cont. Rem.) 41 & 42 Vict. c. 15 (Income Tax) . c. 16 (Factories) . c. 31 (Bills of Sale) . c. 49 (Weights and Meas.) c. 77 (High, and Loc.) c. 78 (Educat. Scot.) . 43 & 44 Vict. c. 42 (Emp. Liab.) . 44 k 45 Vict. c. 26 (Strat. Ironst.) . c. 41 (Conv. and Ppty.) 45 & 46 Vict. c. 49 (Ireland) . c. 3 (Slate Mines) c. 38 (Settled Land) , 26, 32, 44, 45, 165, 203 11, 18, 127 46 & 47 Vict. c. 52 (Bankruptcy) c. 53 (Factories) . PAQE 57 555 11, 13, 570, 582, 606, 607 226 584 29 581 . 610—613 569, 591 ;, 65, 86, 127, 159, 160, 162, 225, 241, 254, 255, 356, 492 32, 93, 281, 371 569, 591 128, 129, 130, 133, 135, 136 160—169, 173 261 570, 607 CORRIGENDA. P. 2, n. «. For 2 A. & E. 578, read 2 A. & E. 593. Pp. 20, 27, 286, 288, 290, 291. 292, 294, 295, 299, 304, 315, 351. For Humphrej a w Brogden, read Humphries v. Brogden. P. 32. For 44 & 45 Vict. c. 47, read 44 & 45 Vict. c. 49. P. 42, n. 2 . For 27 L. T. 24, read 27 L. T. 64. P. 295, marginal note. For grantee, read grantor. P. 493. lines 12 and 15 from top. For surrenderee, read surrenderor. ADDENDA. Att.-Gen. of Ontario v. Mercer, 8 App. Cas. 767. Add reference, on p. 15, for the meaning of 'lands, mines, minerals, and royalties ; ' and (to pp. 777 et seq. of report) on p. 214, for the meaning of ' royalties.' Bell v. Love, 10 Q. B. D. 547. Add reference (to p. 559 of report) on p. 76, n. 5 , and n. u . This case (the facts of which are stated at p. 332) is now under appeal to the House of Lords. Campbell v. Wardlaw, 8 App. Cas. 641. Add reference (to p. 647 of report) on pp. 22 et seq. for the meaning of open mines ; and (to the whole report) on pp. 46 et se<[. as to the working rights and disabilities of limited owners ; and (to the whole report) on p. 168, n. 4 , as to the effect of the Scotch Act, 30 & 31 Vict. c. 97, s. 2, sub-s. 3 ; and (to pp. 649, 650 of report) on p. 169, n. ". Chapman v. Day, 49 L. T.436, reversed the decision below cited at p. 354 ; and laid down, that the remedy for wrongfully withdrawing support may be lost by the death of the wrongdoer. Dixon v. White, cited at p. 337, n. 3 , is now reported in 8 App. Cas. 833. Add reference (to pp. 843, 847, 851 of report) on p. 294 ; and (to pp. 847, 852 of report) on p. 296, n. 2 ; and (to pp. 843, 847, 850, 851 of report) on p. 305, n. 8 ; and (to the whole report) on p. 334, n. 2 . Mostyn v. Lancaster, cited at pp. 236, 237, 246, is now reported in 23 Ch. D. 5S3. Newcastle's Estates, cited at pp. 166, 167, is now reported in 24 Ch. D. 129. Add reference on p. 133, n. '. Normanton Gas Co. v. Pope, 52 L. J. Q. B. 629, cited at pp. 312, 337, 351, 354, also XC1V ADDENDA. laid down, that compensation under the Gas Clauses Act is payable as soon as a com- pany construct their works, and for future as well as actual injury. Add reference, accordingly, on p. 346. Phillips v. Homfray, cited at pp. 379, 524, 532, 540, 544, is now reported in 24 Ch. D. 439. Pountney v. Clayton, cited at pp. 268, 287, 294, 297, 299, 311, 329, 330, 331, 338, 340, 342, 348, is now reported in 11 Q. B. D. 820. Add reference (to pp. 826, 842, of report) on p. 329, as to mines outside the 40 yards' limit. The language attributed to Bowen, L.J., in the last four lines on p. 330, and the first two on p. 331, is not in terms borne out by the report in 11 Q. B. D. at pp. 843, 844. Taylor v. Mostyn, cited at pp. 171, 172, is now reported in 23 Ch. D. 583. Tucker v. Linger (the facts of which are stated at pp. 17, 54) was affirmed by the House of Lords, and is now reported in 8 App. Cas. 508. Add reference (to pp. 510, 512, 513, of report) on p. 12 as to the meaning of mineral ; and (to pp. 513, 514 of report) on p. 106. The Scotch Act, 30 & 31 Vict. c. 97, s. 2, sub-s. 3. Add reference on p. 168, n. 4 . MINES, QUAKBIES, AND MINEEALS. CHAPTER I. MEANINGS OF MINE, QUARRY, MINERAL SOIL, AND KINDRED WORDS AND EXPRESSIONS. Sect. 1.— MINE, VEIN, SEAM, AND QUARRY, (a) Difference between Mine and Vein or Seam. " Mine " is defined iu Johnson's Dictionary as " a place or DeSnitious of cavern in the earth, which contains metals or minerals : " in Wehster's Dictionary as " a pit or excavation in the earth from which metallic ores or other mineral substances are taken by digging:" in Worcester's Dictionary as "a subterraneous work or excavation for obtaining metals, metallic ores, or other mineral substances, a pit, a cavern ; " and in Wharton's Law Lexicon as " an excavation or cavern in the earth, which yields metals or minerals." " Vein " is defined in Webster's Dictionary as " a seam or layer Definitions nf P i . i • i • , , • i vein and seam. oi any substance more or less wide intersecting a rock; or stratum, and not corresponding with the stratification ; often limited in the language of miners to such a layer or course of metal or ore ;" and in Richardson's Dictionary as "lineal tubes, which convey the blood in animals ; lineal streaks in mineral or vegetable bodies." The Encyclopaedia Britannica thus describes veins : — " These are fissures or cracks in the rocks . . . which are filled . . . with materials of quite a different nature from the rocks in which the fissures occur." 1 " Seam " 1 See vol. xvii.. p. 621 : see also vol, xv.. p. 1 7 T. 2 MEANINGS OF [CHAP. I. is defined in Webster's Dictionary as " a thin layer or stra- tum j 1 a narrow vein between two thicker ones; as a seam of coal." Vein and seam appear accordingly to be convertible expressions. Mine and vein If there are a particular number of veins within or under a tingSshed. S " piece of land, there are precisely the same number of mines occupying precisely the same areas. In this sense the primary meaning of mine is vein. 3 Consistently, however, with this, each word seems to have a distinct meaning of its own. In strictness a mine is not, it would seem, " properly so called, until it is opened. It is at best but a vein of coals before." 3 Indeed it has been laid down that a grant of " lands and mines," where some of the veins in question are open and others hidden, will only pass the open veins. 4 On the other hand, mines, where unopened mines are spoken of, mean in strictness nothing more nor less than veins or seams. 5 In fact, mine appears in its primary sense to imply openness, and vein or seam appears in its primary sense to exclude that notion. In a secondary sense, however, mine may be said to mean a closed vein. "Although a vein be not open, but close, yet it might be termed a mine — that which is not open may be called a mine." 6 And, on the other hand, veins or seams may, in a secondary sense, be called mines. 7 A mine, like a vein or seam, may be properly so called, although it extends through the properties of a variety of owners. 8 The word mine is, however, frequently used in the 1 Stratum is defined ia Johnson's ~> See Hext v. Gill. 7 Ch. 712. per Dictionary as "abed ; a layer :" and in Mellish, L.J. A devise, before the Webster's as "a bed of earth or rock Wills Act, of "pits and veins'" in and of any kind formed by natural causes, upon certain lands, '"together with the and consisting usually of a series of rents and profits of such pits and layers." veins.*' was held to only pass pits and 2 See Abinger v. Ashton, 17 Eq. 369, veins which were open at the date of per Jessel, M.R. ; Ramsay v. Blair, the will : see Brown r. Whiteway.S Ha. 1 App. Cas. TO.'), per Lord Selborne. 150. The same case contains a query, 3 See Astry v. Ballard, 2 Mod. 193 : whether, since the Wills Act, such a see Colchester v. Kewney, L. R. 2 Ex. devise would pass pits or veins open 257. at the death of the testator, but there 4 Astry v. Ballard, u. s. seems no reason to doubt that it 5 See Ramsay v. Blair, u. s., per would. Lord Selborne. 8 Van Mining Co. v. Llanidloes, 1 Ex. 6 See Case of Mines. Plowden, 337. D. 319. Sec also R. v. Foleshill. 2 A. & E. 578. SECT. 1.] MINE, VEIN, SEAM, AND QUARRY. 3 secondary sense of a section of a vein. For example, that portion of a vein, which is confined within the ambit of a particular property, is in common parlance, and may be with propriety, called a mine. It is so considered for rating purposes. 1 And, of course, it is so considered for the purpose of regulating the rights and duties of its owner in respect of the other portions. 2 On the other hand, the word mine is frequently used in the secondary sense of an aggregation of veins or seams. 3 (/3) Difference between Mine and Quarry. " Quarry," as distinguished from mine, is defined in Johnson's Definitions of Dictionary as "a stone mine, a place where they dig stones :" riuarry ' in Webster's Dictionary as " a place, cavern, or pit where stones are cut from the earth for building or other purposes, a stone pit ;" and in Worcester's Dictionary as " a stone bed whence build- ing materials are dug or cut, a stone pit." And in the definition of " mine " in Wharton's Law Lexicon it is said — " When stones only are produced, the places from which they are dug out are called quarries." 4 It has also been judicially stated, that the word " quarry " generally means a place where the material is got out in a large shape like blocks, and not where it is got in small pieces, like coal and ironstone. 5 In the lexicographical Derivations of fiT-i i t iir t i i ... niine and part or the Lncyclopoedia Metropolitana the word " mine is quarry. said to be derived from the Latin minare, a word of the Lower Ages, signifying ducere, to lead, and to mean " to draw or lead, sc, a way or passage underground, a subterraneous duct, course, or passage, whether in search of metals or to destroy fortifica- tions." And in the same work the word "quarry" is said to be derived from the French quarriere ; and it is added, " in the Latin of the Lower Ages quadratarius was a stone cutter, qui marmora quadrat ; and hence quarriere, the j)lace where 1 lb. Cf. E. v. Foleshill, 2 A. & E. works: see Bowes v. Ravensworth, 19 598. C. B. 516. 2 See Ivimey v. Stocker, 1 Ch. 407, 4 For the definitions of '-mine" in 408. these works, see ante, p. 1. 3 See Spencer v. Scurr,31 Beav. 334. 5 Jones v. Cwmorthen Slate Co., Of course "mine" is hardly ever used 5 Ex. D. 95, per Bramwell, L. J. in the secondary sense of underground >s 2 a MEANINGS OF [CHAP. I. he quadrates or cuts the stones in squares." " Quarry " is then defined to be " the place where the stone is cut in squares ; generally a stone pit." l Mine and The true distinction between a mine and a quarry, so far at quarry distin- j ^. ag a i awyer [ s concerned seems, speaking generally, to be guisheu. d _ . , best indicated in the Encyclopaedia Metropohtana. It is the Mode of work- mode of working the article obtained, and not its chemical or ing generally creolooical features, which generally determines its legal cha- conclusive. ° ° . . racter. If the article is obtained by underground workings, the place from which it is obtained is, properly speaking, a mine : if it is obtained by workings upon or above the ground, the place is, properly speaking, a quarry. " The question is, whether you are working so as to remove the surface, including, perhaps, portions of the lateral surfaces, so as not to leave a roof. Mining is when you begin only on the surface, and by sinking shafts, or driving lateral drifts, you are working so that you make a pit or tunnel, leaving a roof overhead." 3 "A quarry is a work from which stone or other material is obtained by excavation from the surface only. Directly you cease to excavate from the surface, and carry on a subterranean work, it ceases to be a quarry." 3 Indeed, according to the statement in the Encyclopaedia Metropohtana, the primary meaning of " mine " was an underground excavation. And it was by suc- cessive transitions in its meaning that the word came first to in- clude the place from which minerals are obtained by such an ex- cavation as well as the excavation itself; and secondly, to mean that place alone, without regard to the excavation. " The primary meaning of the word ' mine,' standing alone, is an underground excavation made for the purpose of getting minerals. In leases and similar documents it is commonly used in a slightly dif- ferent sense. There the word includes the stratum of the minerals as well as the excavation made to win it." 4 1 In Jacob's Law Dictionary theword 3 See Cleveland v. Meyrick. 16 W. R. "mines" is most inaccurately defined If.'."), per Malins, V. C. : see also Brown as "quarries or places whereout any- v. Chadwick, 7 lr. C. L. Rep. 108; thing is digged : " see Bell v. "Wilson, Listowel v. Gibbings, 9 lb. 233 ; Tucker 2 Dr. & Sm. 400. v. Linger, 21 Ch. D. 36. 2 See Darvill v. Roper, 3 Drew. 299, 4 See Mid. R.Oo. v. Haunchwood,&c. per Kindersley, V.C. See also Bell r. Co.. 20 Ch. D. 555. per Kay. J. Wilson, 2 Dr. & Sm. 399. SECT. 1.] MINE, VEIN', SEAM, AND QUARRY. 7) A brickfield, 1 or a gravel or ordinary clay pit, 2 is, there- Illustrations. fore, in the nature of a quarry rather than a mine. On the other hand, a place from which limestone 3 or freestone, 4 obtained by underground workings, was gotten, has been held to be a mine. So it has been held, that a pit from which clay was extracted by underground workings consti- tuted a clay mine. 5 And shares in a slate company, whose operations had been principally carried on underground, and not by open-air workings, have been held to be " shares in mines ; " so as to pass under those words in a bequest in a codicil. 6 And a slate quarry, worked by means of underground workings by levels, has been held to be a mine within the meaning of the Met. Mines Reg. Act, 1872. 7 However, the proper meaning of " mines " may be varied by Exception the context. 8 Thus, works for the getting of slate are assessable Xax Act to the income tax under the Act 5 & G Vict. c. 35, sch. A. 9 as quarries, and not as mines, although the slate be obtained by underground working; 10 the Act distinguishing between "quarries of stone, slate," &c, and " mines/' and applying to each a different principle of assessment. 11 On the other hand, in the 77th and Exception following sections of the Rail. CI. Cons. Act, 1845, 13 , the word clauses Con- " mines " obtains from the context a larger meaning than it solldatlon ct - would otherwise have. These sections are prefaced by the words " And with respect to mines lying under or near the railway be it enacted as follows : " — Sect. 77 then provides, 13 that 1 Edmonds v. Eastwood, 2 H. & N. 10 Jones v. Cwmorthen Slate Co., 825. v. s., affd. 5 Exch. D. 93. 2 Errington v. Met. Ry. Co., 19 Ch. » lb. 99 : see post, Chap. XXIII., D. 571 ; Tucker v. Linger, 21 ib. 36. Sect. 2. 3 R. v. Sedgley, 2 B. & Ad. 65. u 8 & 9 Vict. c. 20. 4 R. v. Dunsford, 2 A. & E. 568. 13 The sections are as follows : — 5 R. v. Brettel, 3 B. & Ad. 424. Cf. Sect. 77 : " The Company shall not be R. v. Alberbury, 1 East, 534; R. v. entitled to any mines of coal, ironstone, Woodland, 2 East, 164 ; R. v. Brown, slate or other minerals under any land 8 East, 528. purchased by them, except only such 6 Cleveland v. Meyrick, 16 W.R.I 04. parts thereof as shall be necessary to 7 35 <& 36 Vict. c. 77 : see Sim v. be dug or carried away or used in the Evans, 23 W. R. 730 (cited in Jones v. construction of the works, unless the Cwmorthen Slate Co., 4 Ex. D. 97). same shall have been expressly pur- 8 Mid. Ry. Co. v. Haunchwood, &c. chased ; and all such mines excepting Co., 20 Ch. D. 555. as aforesaid shall be deemed to be 9 Xcejjost, Chap. XXIII.. Sect. 2. excepted out of the conveyance of MEANINGS OF [chap. I. " the Company shall not be entitled to any mines of coal, iron- stone, slate, or other minerals," except such parts " as shall be necessary to be dug or carried away or used in the construction of the works, unless the same shall have been expressly pur- chased ; and all such mines, excepting as aforesaid, shall" other- such lands, unless they shall have been expressly named therein and conveyed thereby." Section 78 :— " If the owner, lessee or occupier of any mines or minerals lying under the railway or any of the works connected therewith, or within the prescribed distance, or where no distance shall be prescribed, 40 yards therefrom, be desirous of working the same, such owner, lessee or occupier shall give to the Company notice in writing of his intention so to do 30 days before the commencement of working, and upon the receipt of such notice, it shall be lawful for the Com- pany to cause such mines to be in- spected by any person appointed by them for the purpose, and if it appear to the Company that the working of such mines or minerals is likely to damage the works of the railway, and if the Company be willing to make compensation for such mines or any part thereof to such owner, lessee or occupier thereof, then he shall not work or get the same ; and if the Company and such owner, lessee or occupier 2 : 14 MEANING OF [CHAP. I. quarrying. It was in evidence that in Northumberland, the county in which the property was situated, freestone was never known to be got by mining operations as distinguished from quarrying ; and it was admitted that it would not pay to get the freestone otherwise than by quarrying it. It was held, that the defendants were not entitled to work by open quarrying. 1 But it was also held, that the freestone was included in the Hext v. Gill, word minerals. 2 So in Hext v. Gill* There the lord of a manor granted the freehold in a copyhold tenement to the copyholder, excepting " all mines and minerals within and under the premises," &c. Under the tenement was a bed of china clay. No china clay had ever been gotten out of the manor prior to the date of the grant, and it did not appear that its existence had at the date of the grant been contemplated by either party. It was shown that the clay could not be got otherwise than by quarrying it. It was held, that the defendants were not enti- tled to work by quarrying. 4 But it was also held, that the clay was included in the exception. "Mines and A fortiori the proper meaning of the word minerals will not Em'i usually be restricted, where, upon an allotment to commoners, under an Inclosure Act, of the waste lands of a manor, the " mines and minerals " within or under the waste lands are Rosse v. Wain- reserved to the lord. Thus in Rosse v. Wainman? certain man " waste lands in a manor were by an Inclosure Act taken away from the lords and allotted to commoners; reserving neverthe- less to the lords, " all mines and minerals of what nature or kind soever lying and being within or under the said commons and waste grounds in as full, ample, and beneficial a manner to all intents and purposes as they could or might respectively have held or enjoyed the same in case the said Act had not been made ; and giving to the lords full powers of working " the said mines and minerals, and carrying away the lead ore, lead, coals, ironstone, and fossils to be gotten thereout ; " provided that the lords should keep the first stratum of earth " separate and not mix " it " with the lower strata." It was held, that, notwith- standing the use of the word fossils, 6 the lord was entitled to stone 1 See 2>ost, Chap. XIV.. Sect. 3, r. (a). 5 14 M. & W. 859 : affirmed nom. 2 Reversino- S.C. in 2 Dr. & Sm. 395. Wainman v. Rosse, 2 Exch. 800. 3 7 Ch. 699. 6 See infra (5). 4 See post, Chap XIV., Sect. 3, c. (a). SECT. 2.] MINERAL. 15 raised by means of open quarrying from one of the allotments. It was in this case clear, that the object of the Act was to give the surface for cultivation to the commoners, and to leave in the lord what it did not take away for that purpose. So in Mickleihwaite v. Winter. 1 There an Act for inclosing the waste Micklethwadte lands of a manor reserved the " coals and other minerals " to the lord. 2 The defendant, who claimed title through one of the allottees, opened a quarry under his allotment, and dug a con- siderable quantity of stones thereout, It was held, that " minerals " included the stones which had been so dug; and that the plaintiff, who was the lord of the manor, was therefore entitled to damages for the diomno'. 3 (/3) Restriction of prima facie Sense. However, in all cases the prima facie meaning of the word Restriction of minerals will yield to the intention of the parties, where, fvom^^ the language of the instrument in question, such intention is made reasonably clear. 4 For example, language may be used Language of before the word "minerals," or before the words " mines and minerals," which may furnish an argument for restricting such word or words to things ejusdem generis. 5 So, the use after the words " mines and minerals," of such words as " quarries and delfs of slagg, slate, or stone," 6 or " sand, quarries of stone, brick earth, and gravel pits," 7 or other words specifying particularkinds of minerals, may show an intention to use the word minerals in a restricted sense. So where effect cannot be given to a particular clause of an instrument without destroying a previous clause, an intention may be considered to be shown, that such particular clause should have a narrower meaning than it would otherwise have. 8 In like manner, the particular circumstances, under which an Circumstances r> .i , i • ... of severance. instrument ot severance takes etiect, may show an intention 1 6 Exeh. 644. 6 SecA.-G. r. Mylchreest,4 App. Cas. 2 &ee post, Chap. X., b. (a). 294, 307. 308. 3 Cf. Hext v. Gill, 7 Ch. 712, 713. ~> See Tucker v. Linger, 21 Ch. D. 26, 4 See Mid. Ry. Co. v. Haunchwood, per Kay, J. ; 35, 36,jpe? , 'Jessel, M. R. : &c, Co., 20 Ch. D. 555 ; Loosemore v. see, however, ib. 38, 39, 40, per Cotton Tiverton, &c, Ry. Co., 22 ib. 42. and Lindley, L JJ. 5 See Hext v. Gill. 7 Ch. 713. s See Bell r. Wilson. 1 Ch. 308. 1(5 MEANING OF [CHAP. I. Roper to restrict the prima facie meaning of "minerals." Thus, in DarviU v. DarviU v. Roper, 1 two persons, Mr. Boscawen and Lady Dacre, entitled in equal moieties to certain estates, agreed to partition them, and, for that purpose, to abide by a valuation to be made of them; "the mines of lead and coal and other mines or minerals only excepted." The valuation was accordingly made ; and one moiety of the estates was conveyed to. Mr. Boscawen and the other moiety to Lady Dacre, each excepting " the mines of lead and coal and other mines or minerals ; " and one of the deeds in question provided that the profits of the "mines" excepted from the valuation should be taken between the parties according to their several estates and rights. That portion of the estates which was allotted to Lady Dacre contained limestone rock. At the date of the partition this rock was being worked, but was of small value. Subse- quently to the partition it was extensively worked, and its sale yielded a large profit. The rock so worked was worked by open quarries. A bill w r as filed by Mr. Boscawen's repre- sentatives against Lady Dacre's representatives to obtain pay- ment of a portion of the proceeds. It was held, that the limestone was not within the exception, and the bill was Brown v. accordingly dismissed. So in Brown v. Chadwick* There a lease contained the following exception : — " excepting and reserving unto the lessor all mines, minerals, and other royalties whatsoever, with liberty to search for, dig, raise, manufacture on the premises, and carry away the same." This exception was held not to include limestone rock which was worked by means of open quarries at the date of the lease. 3 In DarviU v. Roper the intention of the parties to limit the meaning of the word "minerals" was perhaps apparent from the language of the deed dealing with the profits of the excepted mines. More- over, the stone in question was in' the course of being worked at the date of the partition. And, in addition, it was evidently the object of the parties to divide all that without extreme difficulty or expense it was possible to divide. It must, therefore, have been the intention to include in the division i 3 Drew. 294. 3 ^ee also Listowel v. Gibbings, 9 Ir. - 7 Ir. C. L. IVp. 101. C. L. Rep. 223. Chadwick. SECT. 2.] MINERAL. 17 everything that was apparent or could be easily made apparent on or near the surface. 1 In Brown v. Chadwick the limestone I'ock was being worked by means of open quarries at the date of the lease. A limited construction was also adopted in A.-G. v. Myl- A.-GL v. Myl- chreest? where a contest arose between the Crown and the owners of customary tenements in the Isle of Man as to the title to the clay and sand in the tenements. The Act of Settlement of the Isle " saved " to the predecessors in title of the Crown all " mines and minerals of what kind and nature soever, quarries and delfs of slagg, slate, or stone." The Act had been passed for the purpose of declaring and confirming to the tenants their ancient customary estates ; and an immemorial custom for the customary tenants to take the clay and sand was shown to exist. It was held, that the saving clause did not comprise the clay and sand. So in Tucker v. Linger* There it was shown 1 to be the Tucker v. n i t n -l i Linger. custom or the district in question tor an agricultural tenant to remove the flints which were turned up in the ordinary course of ploughing, and to sell them for his own benefit. A farming- lease provided that the lessee should not commit waste nor use the land for other than agricultural purposes, and it excepted "all mines and minerals, sand, quarries of stone, brick earth, and gravel pits." It was held, that " minerals " did not include the flints to which the custom applied, although it might include flints not got according to the custom. And a limited construction may also, in doubtful cases, be put Custom or upon the word " minerals, where the custom of the country has adopted such construction ; fi or where continuous subsequent usage can be referred to, and is inconsistent with any other construction. 7 1 See, however, the observations on now under appeal to the House of Darvill v. Roper of Jessel, M. R., in Lords. Tucker v. Linger, 21 Ch. D. 32. 6 See Darvill v. Boper. 3 Drew. 301 ; - 4 App. Cas. 294. Bell v. Wilson, 2 Dr. i: 8m. 395, 402, 3 21 Oh. D. 18. on appeal. 1 Ch. 303 ; Hext v. Oil', 7 4 Cotton. L. J., doubted (see pp. 37, Ch. 705 n. ; Tucker v. Linger, 21 Ch. 38) whether the custom had been D. 36, 37. proved. " A.-G. v. Mylchreest, 4 App. Cas. 5 It is understood, that this case is 305, 308. IS MEANINGS OF [CHAP. I. Containing chamber. (y) Containing Chamber. A mere grant or exception of " minerals " will not comprise the chamber which incloses them. No doubt, according to the authorities, "mineral" cannot be confined in its meaning to the product of a mine : l but its meaning has never been so extended as to include anything more than what is merely the product of the earth. • Where, therefore, the freeholder of land grants it, excepting the minerals thereunder, and not excepting anything further, the chamber containing the minerals is com- prised in the grant, and not in the exception ; and the grantor has no interest whatever in the space or shell which his work- ino- creates. 2 However, an exception in such words as " all and sundry the coal and limestone " is equivalent to mines of coal and mines or quarries of stone ; 3 and an exception in such words as " the whole coal stone quarries and all other metals and minerals within" means the whole of the land under the surface. 4 Particular kinds of mine- rals — metal. Stones. (8) Particular kinds of Minerals. " Metal " is a word of less extensive meaning than " mineral." " All metals are minerals, but all minerals are not metals." " We understand by the term metal a firm, heavy, and hard substance, opake, fusible by fire, and concreting again when cold into a solid body, such as it was before, which is malleable under the hammer, and is of a bright glossy and glittering sub- stance where newly cut or broken." 6 The word " stones " hardly 1 See ante, p. 12. - See Ramsay v. Blair. 1 App. Cas. 702. 704. 706 ; Metrop., &c, R. Co. v. Cosh, 13 Ch. D. 614, per Jessel, M. R. The latter is a dictum as to s. 77 of Rail. CI. Cons. Act, 1845; under which, however, mines, and not merely mine- rals, are deemed to be excepted : see the section cited mitr, p. 5, n. l3 . See also, Ballacorkish, &c, Co. v. Harrison. L. R. 5 P. C. 62 : Eardley ». Granville. 3 Ch. D. 834, 83o : cf. the meaning of mine, ante, pp. 9, 10, 11. 3 See Hamilton v. Graham, L. R. 2 Sc. & I). 166. 4 See Ramsay v. Blair, 1 App. Cas. 703. "Mineral" is expressly denned in the following Acts :— 18 & 19 Vict, c. 32. s. 2 ; 21 & 22 Vict. c. 109, s. 8 ; 26 & 27 Vict. c. 49, s. 37 ; 45 & 46 Vict, c. 38. s. 2. These definitions are men- tioned in their proper places. 5 See the definition of "mineral" in Johnson's Dictionary. See Ros?e r. VVainman, 1 I M. & W. 872. 6 Johnson's Dictionary. The deri- SECT. 3.] MINERAL AND SURFACE. }9 seems to require a definition. It may, however, be mentioned that difficulties have sometimes arisen under Acts of Parlia- ment as to its meaning. Where a Navigation Act imposed a toll on " every ton of butter or other goods, wares, merchan- dize, and commodities," and a lower toll on " every ton of coals, cinders, lime and limestone, stone, gravel and manure ;" it was held, that blocks cut with wedges from a quarry, and then re- duced to certain dimensions according to order, and squared with a pick-axe, to be used as railway sleepers, were liable as "stones" only, and not as "merchandize;" although each block was, after such preparation, worth 9c?-. more than un- wrought stone of the same weight. 1 But, where a Navigation Act gave a toll of Id. per ton on " coals, culm, coke, charcoal, or other fuel, road materials, stone, pebbles, sand, clay, manure, limestone," and a toll of 3d. on other " goods, wares, or merchan- dize," not before mentioned ; it was held that coprolites were not " stone," but were "goods, wares, or merchandize." ~ The Fossils. word " fossils " may, in a strict sense, apply to stones dug or quarried. Usually, however, it appears to apply only to metallic minerals. 8 The expression "produce" of mines or "Produce" of minerals does not necessarily mean produce in its native state. mine& " Coke may be such produce, although by combustion its chemical nature is changed. 4 Sect. 3.— SURFACE, SUBSOIL, LAND, CLOSE, TENEMENT, HEREDITAMENT, SOIL. (a) Surface. " Surface," or superficies, prvmd facie, means, of course, Surface, nothing more than the mere vestimenta terra/. No portion, therefore, of the actual surface of the earth will be included in " mine," " quarry," or " minerals." 5 And if the article in question vation of the word from jue-ra ra &A\a 4 See Bowes r. Ravensworth. 1 n 0. is sanctioned by the Encyclopedia B. 518, 523. Metropolitana. 5 See Mid. R. Co. v. Haunchwood, 1 Fisher v. Lee, 12 A. & E. 622. &c, Co.. 20 Cli. D. 555, per Kay. J. 2 Dant v. Moore. 9 L. T. N. S. 381. In Bell v. Wilson (2 Dr. & Sm. 399), 3 See Rosse r. Wainman. 14 M, k V.-C. Kindersley said that mineral W. 872, 873. would include the mould or loam C 2 20 MEANINGS OF SUBSOIL, LAND, [CHAP. I. in effect, although not actually, consists of the surface of the earth, it will not be included in any of those words. It has accordingly been decided, that an exception under an Inclosure Act in favour of the owner of land of "all mines, minerals, stone, and other substrata," with a right to enter the said lands " for the purpose of opening such mines, &c," will not include brick earth, which forms part of, or by lying close thereto in effect forms part of, the surface. 1 However, as opposed to an underlying mine, " surface " may be used in a secondary sense, to denote the whole of the soil lying over such mine, whether such soil itself contains minerals or not. 2 (/3) Subsoil. Subsoil. " Subsoil " includes, prima facie, all that is below the actual surface down to the centre of the earth. 3 It is, therefore, a wider term than " mines " or " quarries," or even than " minerals." 4 And an exception of " coals and coal mines " will only comprise that portion of the subsoil which actually consists of mines of coal, and will not comprise any intervening or other strata, 5 (y) Land, Close, Tenement, Hereditament. Land— Close " Land " or " lands " will, prima facie, include mines 6 and Hereditament quarries. 7 But it is doubtful whether a coal mine is " land " which lies more immediately at the surface, and on which the verdure grows and thrives. But qu., if, with such an extensive meaning as this a grant would not he altogether de- stroyed by an exception : see Bell v. Wilson, 1 Ch. 308. 1 See Church v. Incl. Comms., 11 C. B. N. S. 6(54. 2 See Humphreys v. Brogden, 12 Q. B. 742. Where a " street " be- comes vested in an urban autho- rity under the Tub. Health Act, 1875, they do not acquire the ownership of the mines : see Coverdale v. Charl- ton, i Q. B. D. 116, 121 ; Rolls v. St. George, 14 Ch. D. 796; 41 & 42 Vict. c. 77. s. 27. a See Cox v. Glue. 5 C. B. 549. 4 See Atkinson r. King, 2 L. R. (Ir.) 339 : see ante, p. 12. 5 See Ramsay v. Blair, 1 App. Cas. 704. 6 Shep. Touch. 90 ; Newcomen v. Coulson, 5 Ch. D. 142, 143 ; Smith v. G. W. R. Co., 3 App. Cas. 165, 180 ; Mr Metrop., See McDonnell v. McKinty, 10 Ir. L. R. 514, 521. 524. SECT. 3.] CLOSE, TENEMENT, HEREDITAMENT, AND SOIL. within the Pauper Settlement Act, G Geo. 4, c. 57; so as to enable an occupation of it to confer a settlement. 1 " Close " is a word sufficiently wide to include both the surface and the subsoil. 2 So " tenement " or " hereditament " includes " mines." 3 (6) Soil. " Soil," prima facie, includes the surface and all that is Soil. below it down to the centre of the earth. 4 Thus in Toivnley v. Townley v. Gibson,' an Inclosure Act directed an allotment of part of the on ' lands in question to be made to the lady of the manor " in lieu of and as a compensation for her right and interest in and to the soil of the residue of the said common and waste grounds," and the residue to be allotted to the several tenants in fee, dis- charged from all customary tenures. The Act then contained a saving clause, reserving to the lord all seignories, rents, fines, &c, and all other royalties and manerial jurisdictions what- soever. It was held, that the mines under the allotments made to the tenants were part of the soil, and were not, therefore, re- served to the lord. And the mere circumstance, in such a case, that the mines are in lease at the time of the passing of the Act, will make no difference. 6 It may, however, appear from the context of the instrument, Pretty v. in which the word "soil" is used, that it is not intended to bear its primary signification. Thus in Pretty v. Solly 7 an Inclosure Act directed allotments for public and specified purposes, and that one-sixteenth should be allotted to the lord of the manor " in lieu of and in full compensation for his and their rio-ht and interest in and to the soil of the said waste lands," and that the remainder of the common lands should be divided amongst the commoners to be held in severalty. It was then declared, that the lord's seignorial rights were not to be prej udiced except as 1 See R. v. West Ardsley, 4 B. &; S. 95. 4 See Pretty v. Solly. 26 Beav. 612 ; 2 See Cox v. Glue. 5 C. B. 551. Wakefield v. Buccleuch, 4 Eq. 624 ; 3 See Dunn v. Birmingham Canal Rolls v. St. George, 14 Ch. D. 796. Co.. L. R. 8 Q. B. 47. 48 : Emngton v. 5 2 T. R, 701. Metrop. R. Co.. 19 Ch. D. 568 ; Loose- 6 See Townley v. Gibson, 2 I. R. more v. Tiverton, <5cc. R. Co., 22 Ch. 701. D. 43. ' 26 Bear. 606. 21 2-> MEANINGS OF OPEN' AND NEW [chap. Buedeuch r. Wakefield. to the soil, and that the lord might thereafter enjoy all rents. heriots, fee., " and all mines, minerals, quarries, and other royal- ties," as if the Act had not passed. It was held, that the word 3 il" was used as distinct from ''land," and as equivalent to "surface;"' and that the lord was entitled under the reserva- tion to the mines under all the lands dealt Avith by the Ac:. So in Buccleuch v. Wakefield? There a local Inclosure Act directed allotments to be set out with the ground and soil thereof for specified public purposes, and authorized the sale of a sufficient portion of the wastes to pay the expenses of the inclosure. It then directed a portion, of the remainder of the wastes to be allotted to the lord as a compensation for his interest in the " soil," and the residue of the wastes to be allotted amongst the commoners. The 43rd >ection reserved to the lord all mines and minerals under the lands thereby directed to be divided and inclosed with working powers. The General Act : (incorporated with, so far as not controlled by, the Local Act) enacted, that every allotment set out and sold to a purchaser to defray the expenses of a local inclosure should be absolutely discharged from all common and other rights thereon " or therein," and be vested in the purchaser in fee absolutely. It was held that what was sold to pay the expenses of the inclo- sure was only the surface and was subject to the reservation contained in the 43rd section. 3 Open mine or quarry — generally. Sect. 4.— OPEN AND NEW MIXES AND QUARRIES. To constitute an open or old mine 4 or quarry, there must have been a previous general dedication thereof by a person acting within his lawful rights, for the purpose of making a profit from the produce. 5 To enable such person to so act it is not necessary that he should be the author of the settlement in question. If, for instance, there is a settlement of land con- i L. R. 4. H. L. 377. i 41 Geo 3. c. 109, s. 32. - Affirming, on this point. Wakefield r. Buccleuch. 4 Eq. 613. * In strictness, the word " mine." where an unopened mine is spoken of. appears to be used in a secondary sense : see ante. p. 2. 3 See Coppinger v. Gubbins. 3 J. k L. 417 ; Elias v. Griffith, 8 Ch. D. 532, nom. Elias v. Snowdon. &c., Co.. 4 App. Cas. 4."<4. SECT, l] minks and quarbies. 23 taining unopened mines on one in tail, or for life without im- peachment of waste, with remainder to another for life; and the tenant in tail or for life in possession opens and works; the re- mainderman will, on the death of the tenant in tail without issue and without disentailing, or on the death of the tenant for life in possession, be entitled to treat the mines as open. 1 If the profit from the produce has been made by means of Sales-lease sales, it is clear, that the mine or quarry in question would be treated as open.- And where a general dedication for the pur- pose of profit and sale has been shown, the mine or quarry will be considered open, although no profit may, in fact, have been made. 3 If a profit has been made by means of a lease of the mine or quarry, under which the lessee has actually worked, it is also clear, that the mine or quarry would be treated as open. 4 And it should not, it is submitted, in such a case be deemed ma- terial, whether the lessor has reserved a share of the profits, or has merely reserved a dead rent. 5 It does not, however, seem to be essential, that the profit should be made by means of sales or a lease. Use is also a perception of profit. And if there has been a working and use of minerals, not limited to any special or restricted purpose, the mine or quarry in question would probably be treated as open. A mine or quarry or clay pit cannot be said to be open, if, No actual although preparations had been made for opening it, it has restricted never in fact been opened ; 7 or, if, being the subject of a lease °P enin o s — reserving a share of the profits,* or even a dead rent, 9 no actual openings. 1 See Claveringr. Clavering. Mosely, this fact. No opinion was however 223 ; 2 P. Wms. 3b9. intimated by any of the Lords, that 2 See Elias v. Snowdon, kc, Co., 4 the actual decision would have been App. Cas. 4(51. per Lord Caims, 465, different, if the reservation had been per Lord Selborne. See also Coppinger by way of dead rent. See and con- r. Gubbins, 3 J. & L. 417. per Lord sider in connexion with this point, St. Leonards; Elias r. Griffith, 8 Ch. Stoughton v. Leigh, 1 Tannt. 402 ; a 1). 532, per James, Cotton & Thesiger, case of dower. L.JJ. 6 Elias v. Snowdon. &c, Co., 4 App. 3 Elias v. Griffith, 8 Ch. D. 521, 532, Cas. 465. per Lord Selborne. 533 : cf. Spencer v. Scurr, 31 Beav. " See Viner v. Vaughan, 2 Beav. 469, 334. 470. 4 See cases cited in n. -. s See Elias v. Snowdon. The flux and reflux of the tides are purchase : see post, Chap. VII. Tart A. prima facie evidence of a navigable g , g river. Miles v. Rose, 5 Taunt. 705 ; 2 10 & 11 Vict. c. 17. Murphy v. Ryan,2Ir. L. R. C. P. 143. 3 Ss 12 18 8 Lyon r. Fishmongers' Co., 1 App. * See Loosemore v. Tiverton, &c, Cas. 673, 682. R Co., 22 Ch. D. 33, 34, per Fry, J. 9 See The Crown Lands Act, 1866, See, however, Jamieson v. North Brit. 29 & 30 Vict, c. 62, s. 21. R Co 6 Scot. L. R. 188'; a decision 10 Hale de Jure Maris, Ch. 1 ; Wis- under the Scotch Act, 8 & 9 Vict. c. 33. hart v. Wyllie, 1 Macq. 389 ; Bickett 5 Loosemore v. Tiverton, &c, R. Co., v. Morris, L. R, 1 Sc. & Div. 47 ; Lyon 22 Ch D. 25, per Fry, J. v. Fishmongers' Co., 1 App. Cas. 682. 6 For a case involving the owner- " As to rivers in Cornwall, see infra, ship of minerals deposited upon the Sect. 5 (7). SECT. 2.] SEA AND SEA-SHORE. 31 (5) Sea and Sea-shore. So in the case of the sea. The Crown is entitled, prima facie, Sea and sea- to the soil of the sea adjoining the coasts of the United King- dom; 1 and, in consequence, to all the mines subjacent thereto. 2 So, generally, in the case of the sea-shore. The Crown is, in general, entitled to that part of the sea-shore, which extends from low-water mark up to the ordinary high-water mark/ 5 And by ordinary high-water mark is meant the line reached by the average of medium high tides between the spring and the neap in each quarter of a lunar revolution during the whole year. 4 That part of the sea-shore, which extends from low-water mark up to ordinary high-water mark, may, however, be shown to belong to the adjoining owner. 5 That part of the sea-shore, which lies between ordinary high-water mark and the highest limit of the tide, belongs, prima facie, to the adjoining owner. 6 The ownership of the sea-shore shifts to the Crown or to the adjoining owner, according as the sea encroaches or recedes by slow and insensible steps. But a rapid and perceptible alluvion belongs to the Crown. 7 And the mines beneath the sea-shore belong prima facie to the adjoining owner or to the Crown according as the soil superjacent to such mines belongs to such owner or to the Crown. 8 1 A.-G. v. Chambers, A.-G. v. Rees, 4 De G. M. & G. 206. 2 As to the sea near Cornwall, see infra, Sect. 5 (7). 3 Scratton v. Brown, 4 B. & C. 495 ; Lopez v. Andrew, 3 M. & Ry. 329 n. ; Lowe v. Govett, 3 B. & Ad. 863 ; A.-G. v. Chambers, A.-G. v. Rees, 4 De G. M. & G. 206, 4 De G. & J. 55, 73. 4 A.-G. v. Chambers. A.-G. v. Rees, 4 De G. M. & G. 206. 4 De G. & J. 73. 5 Scratton v. Brown, 4 B. & C. 495 ; Lopez v. Andrew, 3 M. & Ry. 329 n. ; Beaufort v. Swansea. 3 Exch. 413 ; Calmady v. Rowe, 6 C. B. 861 ; A.-G. v. Hanmer. 27 L. J. Ch. 837 : Con- stable v. Nicholson, 14 C. B. N. S. 230. 6 Lowe v. Govett, 3 B. & Ad. 869, 870, 871 ; A.-G. r. Chambers, A.-G. v. Rees. u. .«. ' A.-G. r. Chambers, A.-G. v. Rees, 4 De G. k J. 66, et seq. s lb.. 4 De G. M. & G. 206 ; 4 De G. & J. 73 ; Lopez v. Andrew, u, n. : see A.-G. v. Chambers, 12 Beav. 159 ; R. r. Keyn. 2 Exch. D. 199 : The Crown Lands Act. 1866. 29 & 30 Vict. c. 62, s. 21. As to the seashore in Cornwall, see infra, Sect. 5 (7). 32 PROPERTY AND POSSESSION — REVERSIONS AND [CHAP. II. Sect. 3. -PROPERTY AND POSSESSION— REVERSIONS AND REMAINDERS— LIEE TENANCIES AND LEASEHOLDS. Lands gene- Where lands are granted for life, leaving a reversion in fee rally — pro- . , , , perty and simple vested in the grantor ; or where lands are settled upon possession. one for ^ ^^ reraa j n( ier to ano ther in fee simple or fee tail ; the reversioner or remainderman has the general property and right of inheritance in the subsoil and in the mines or quarries which it may contain, as part of his right in respect of the entire solum from the surface down to the centre of the earth. But the tenant for life has the right of possession or temporary enjoy- ment, as part of his right in respect of the entire solum in like manner. 1 And the position of a tenant for years, or from year to year, or even of a tenant at will, is precisely similar in this respect to that of a tenant for life. 2 However, during the continuance of a statutory term under the Irish Act, 44 & 45 Vict. c. 47, all mines and minerals, coals and coal pits, subject to such rights in respect thereof as the tenant under the imme- diately preceding tenancy was entitled to exercise, are exclusively reserved to the landlord. 3 And, on the other hand, where the residue of a long term is enlarged into a fee simple under the Act 44 & 45 Vict. c. 41, s. 6o, the fee simple includes the fee simple in all mines and minerals ; whether the term was originally created without impeachment of waste or not. 4 Where B. became tenant from year to year of a close contain- ino- an unopened mine, and entered into occupation of the surface ; and in 1821, pending the tenancy, the lessor demised the mine as a separate tenement to B. and P. ; and in 1832 B.'s tenancy from year to year ceased ; and no working took place until 1847 ; it was held, that, before 1821, B. had been in possession of the mine ; that by the demise in 1821 he became 1 See Attersoll v. Stevens. 1 Taunt. Alderson, 6 Scott, 698, 699 : Keyse v. 188, 193 ; Lewis v. Branthwaite, 2 B. Powell, v. s. & Ad. 437, 443, 445 ; Keyse v. Powell, 3 S. 5. 2 E. & B. 144. Cf. the 5th resolution A See the section. As to impeach- in Bowies' Case, Lead. Cas. Conv. 37 ; ment of waste, see post, Chap. III., A.-G. v. Marlborough. 3 Madd. 538. Sect. 2, b. - Lewis v. Branthwaite, n.s. ; Rainev. SECT. 3.] REMAINDERS — LIFE TENANCIES AND LEASEHOLDS. 33 possessed without actual entry ; that such possession enured for the benefit of B. and P. ; and that, accordingly, B. and P. were both in possession from 1821, and did not hold a mere interesse termini} And the principles applicable to lands which happen to con- Mines or qr.ar- tain mines or quarries, must equally apply to mines or quarries aud^ses- 6 ' y themselves as a separate tenement. The lessee for years of a S101U particular mine or quarry has the right of possession ; while the reversioner has the right of property. And the same principles apply to minerals, so long as they remain unsevered Minerals— and part of the inheritance. 2 Nor are such principles affected pos^Mou'" even in the cases where a tenant for life or years is entitled to work them. 3 Before severance he has a power only and not an interest. 4 It follows, that even in such cases, if the tenant for life or years abstains from exercising his right, or only partially exercises it, the minerals, or s"uch of them as remain unworked, devolve on the expiration of his interest on the reversioner or remainderman. 5 The rights of property and possession comprise respectively Containing rights in respect of the chamber which incloses the minerals. pro i>erty arid As soon as a space or vacuum is created by the working of the P° ssessl0n - minerals, the right of property in such space or vacuum becomes vested in the reversioner or remainderman, but the right of possession becomes vested in the tenant for life or years. 6 And the principles applicable to land which happens to contain a mine or quarry must equally apply to a mine or quarry itself as a separate tenement. In the case, therefore, of a mining lease, strictly so called, as soon as the lessee by his working has created a space or vacuum, although the right of property therein becomes vested in the lessor, the right of possession becomes vested in the lessee. 7 1 Keyse v. Powell, 2 E. & B. 132, v. Stevens. 1 Taunt. 193, 198, 199 ; 146. Doe v. Powell, 8 Scott, N. R. 693. 2 See Attersoll v. Stevens, 1 Taunt. 5 See and consider Cockered v. 193, 198, 199 ; Davis v. Marlborough, Chombley, 10 B. & C. 572. 2 Swanst. 147 n. : see also the 7th reso- 6 See Lewis v. Branthwaite, 2 B. & lution in Bowles' Case, L. C. Conv. 37. Ad. 437 ; Keyse v. Powell. 2 E. & B. 3 lb., see post, Chap. III., Sect. 2, a, 144; in connexion with Eardley v. (o) ; b, (/3). Granville. 3 Ch. D. 826. 4 See Davis r. Marlborough, 2 " See further, on this point, post, Swanst. H7 n. : 9ee also Attersoll Chap. XI., Sect. 4 (a). D 34 PROPERTY AXD POSSESSION. [chap. II. Copyholds — property and possession. Sect. 4.— PROPERTY AND POSSESSION— MANORIAL OR ENFRANCHISED OR INCLOSED LANDS. (a) Copyholds. The right of property in mines or quarries beneath or within the copyhold tenements of a manor is, in general, vested in the lord as having the freehold of inheritance in him. 1 But it may by immemorial custom be vested in a copyholder of inheritance ; or for life, with power to renew or to nominate a successor. 2 A grant of copyholds, however, includes a grant of the sub- soil, with all the mines or quarries therein contained, as part of the grant in respect of the entire solum from the surface down to the centre of the earth. The possession of mines or quarries beneath or within a copyhold tenement, and of the subsoil con- taining them, is, accordingly, as part of the entire solum, vested in the copyholder. 3 In fact the right of a copyholder, who has always been regarded as at least a tenant at will, cannot, in this respect, be less than the right of an ordinary tenant at will. 4 The property in the minerals (as well as the mines or 1 Winchester v. Knight, 1 P. Wms. 406; Grey v. Northumberland, 17 Ves. 282 ; Bourne v. Taylor, 10 East, 189 : Rowe v. Brenton, Cone. 313 ; 8 B. & C. 737 ; 3 M. & R. 133 ; Dear- den v. Evans, 5 M. & W. 11 ; Lewis v. Branthwaite, 2 B. & Ad. 487 ; Keyse v. Powell, 2 E. & B. 132 ; Bowser v. Maclean, 2 De G. F. & J. 419 ; Hext v. Gill, 7 Ch. 713 ; Eardley v. Gran- ville, 3 Ch. D. 826, 832 ; A.-G. v. Tomline, 5 Ch. D. 750, 762. Cf. Green- wich Hospital v. Blackett, 12 Jur. 151. 2 See Sciiv. Cop. 252 ; Salisbury v. Gladstone, 6 H. & N. 129. In the manor of Wakefield (Yorkshire) the mines and minerals belong to the copyholders : see Roe v. Vernon, 5 East. 62 ; Price v. Macaulay, 2 De G. M. & G. 343. 344 ; Dav. 2. p. 501, n. The same is apparently the case in the manor of Abercarne (Monmouth) : see Keyse v. Powell, 2 E. & B. 132 ; Phillips v. Homfray, 6 Ch. 771 : see, however, Moggridge v. Hall ; Llan- over r. Homfray ; Phillips v. Llan- over. 13 Ch. D. 380. As to the manor of Great Broughton. see Mawson v, Fletcher, 10 Eq. 212, 214, 219 ; 6 Ch 91, 94. 3 See Tlayer v. Roberts. Sir W Jones, 243 ; Gilb. Ten. 327 ; Grey v, Northumberland, 13 Ves. 236, 17 ib 282 ; Bourne v. Taylor, 10 East, 189 Rowe v. Brenton, Cone. 313 : Whit church v. Holworthy, 4 M. & S. 340 Lewis v. Branthwaite, 2 B. & Ad. 444 Keyse v. Powell, 2 E. & B. 132 ; Bow. aer v. Maclean, 2 De G. F. & J. 420 Eardley v. Granville, 3 Ch. D. 832 A.-G. v. Tomline, 5 Ch. D. 762. 4 See Lewis v. Branthwaite. >/. s. Keyse v. Powell, ". s, : see tint r. p. 32 SECT. 1.] MANORIAL LANDS. 35 quarries) beneath or within a copyhold tenement is, in general, vested in the lord. 1 Upon a grant of copyholds ; as upon an ordinary grant, ex- Containing 10 l J . chamber — cepting the underlying mines ; 2 the grantor retains not merely property and the property in the underlying minerals, but the property in pos the chamber which incloses them. But the possession of such chamber, like the possession of the inclosed minerals, and of the subsoil generally, 3 becomes vested, prima facie, in the copy- holder. 4 As soon, therefore, as a space or vacuum is created by the working of manorial mines, the right of property in such space or vacuum becomes vested in the lord, but the right of possession becomes vested in the copyholder. 5 (/3) Customary Freeholds. The rio-ht of property in mines or quarries beneath or within Customary , . j freeholds - customary freeholds is in general vested in the lord ; and the property ami right of possession in the tenant. 6 Indeed, the fact, that a p03 tenant has no right of property in mines or quarries is often material in showing that his holding is that of a customary, and not of an ordinary, freeholder. Thus, in an action for taking coal under a copyhold tenement, the tenants showed by old surrenders, admissions and decrees, that they were copyholders of inheritance with fines certain, holding according to the cus- tom of husbandry of the manor, but without stating them to hold at the will of the lord. Evidence was produced on the other hand, that for more than 100 years the lord and his pre- decessors had leased coal under copyholds in different parts of the manor and received rents therefor, and that the lessees, and not the copyholders, had taken the coal. It was held, that this explained the nature of the tenure according to the custom of husbandry of the manor, and showed that the freehold was in the lord, and not in the tenants. 7 However, the right of pro- 1 See Hext v. Gill, 7 Ch. 712 ; 5 See ib. A.-G. v. Tomline, 5 Ch. D. 7 ; Portland v. Hill, 2 Eq. a See ante, p. 34. 765, 777. 4 Eardley y. Granville, 3 Ch. P. ' See Brown v. Rawlins, 7 East, 833. 409. I) 2 30 PROPERTY & POSSESSION— ENFRANCHISEMENTS — WASTES [CH. II. Enfranchise- ments. Wastes. perty in mines or quarries beneath or within customary free- holds may be shown to be vested in the tenant. 1 (y) Enfranchisements. Where copyhold tenements are voluntarily enfranchised, the person who obtains the enfranchisement becomes entitled, primd facie, to the mines and quarries therein; the right of property in which becomes divested from the lord. 2 However, with respect to copyholds enfranchised under the Act 4 & 5 Vict. c. 35, the determination of disputes by the Copyhold Commissioners cannot, directly or indirectly, affect any right to mines and minerals ; and no commutation can affect any rights of lords of manors to mines and minerals or quarries, unless expressly commuted. 3 And with respect to copyholds compulsorily enfranchised under the Act 15 & 16 Vict. c. 51, no enfranchisement can affect the rights of any lord or tenant to mines, minerals, or quarries, or to any easements or rights incident to the working thereof, unless with the express consent in writing of such lord or tenant. 1 (5) Wastes. The property in all mines and quarries beneath and within the waste or common of a manor is vested, 'pr'vmd facie, in the lord as the freeholder thereof. 5 But of course, in an action to determine the ownership of land alleged to form part of a waste, acts of ownership by the lord in respect of minerals under other parts of the waste are not receivable in evidence, until it is first shown that the land in question forms part of one entire waste to which those acts are applicable. 6 How- ever, the right of property in mines or quarries beneath or within the waste may be shown to be vested in the tenants of the manor. 7 1 See Curtis v. Daniel 10 ib. 273. 2 See and consider Townley r. Gib- son, 2 T. R. 701. 3 Ss. 39, 82. * S.48. s See Filewood v. Palmer, 5 Vin. Abr. p. 8, § 33 ; Mosely. 172 ; Mclm. MSS. E. 53, Line. Inn Library ; Townloy v. Gibson, 2 T. R. 705 ; Place v. Jackson, 4 D. & Ry. 318 ; Roberts p. Haines, E. & B. 652; A.-G. p. Hanmcr. 27 L. J. Ch. 840: cf. Hoskins v. Robbins, 1 Vent. 123 ; nom. Hopkins p. Robin- son, 2 Lev. 2. 6 Tyrwhitt v. Wynne. 2 B. & Al. 554. " See Curtis p. Daniel, 10 East, 273. SECT. 5.] AND ENCLOSURES-— PARTICULAR LOCALITIES. 37 (e) Inclosures. Where an inclosure takes place, the right of property in the Inclosures. mines and quarries within the inclosure becomes vested, primd facie, in the allottees of the surface, as such allottees. 1 And if the lord, or any person claiming under him, attempts to inter- fere with the allottees' right, he may be restrained. 2 However, upon the occasion of an inclosure, special provisions are usually made as to the property in the mines and minerals. 3 And with Inclosure Acts. respect to land inclosed under the Inclosure Acts, 4 where the right to mines and substrata exists as property distinct from property in the surface, and is not compensated upon the in- closure, the inclosure does not affect the property in such mines and substrata, or any incidental rights or easements ; and where any mines or substrata, or the right of searching for or getting the same, has been leased or agreed to be leased as property distinct from the property in the surface, with or without inci- dental powers over the surface, the inclosure does not affect the rights of the lessee. 5 Sect. 5.— PROPERTY — PARTICULAR LOCALITIES. (a) St. Briavels — Derbyshire — Isle of Man. The right of property in all mines and quarries (with certain st. Briavels. few exceptions) of every description throughout the Forest of Dean and the other portions of the Hundred of St. Briavels, in the County of Gloucester, is vested in the Crown. 6 The right Derbyshire. of property in the mines and veins of lead ore in a district within the Hundred of High Peak, in the county of Derby, called the King's Field, and in certain other parts of the same Hundred ; and in a district within the soke and wapentake of Wirksworth, or Low Peak, in the same county, called the 1 See Townley v. Gibson, 2 T. R, < See post, Chap. VII., Part B., 701 : see p. 706 ; Doe v. Davidson, Sect, 2, b. 2 M. & S. 175, 188, 190. 5 8 & 9 Vict. c. 118, s. 98. 2 See Ackroyd v. Briggs, 13 L. T. 6 See the preamble of 1 & 2 Vict. N. S. 521. c. 43 ; post, Chap. XX., a. 3 See Doe v. Davidson, u. s. manors. 3^ PROPERTY. [CHAP. II. King's Field, is vested in the Crown. 1 The right of property in the mines and veins of lead ore in the manors of Ashford, Hartington, Peak Forest, Tideswell, Crich, Stoney Middleton and Eyam, Youlgrave, and Litton, in the same county, is in Isle of Man. private hands. 3 The right of property in the mines and quarries, and in the minerals (not being clay or sand), in the customary estates of inheritance in the Isle of Man is vested in the Crown. 3 (/3) Assessional and other Manors in Cornwall. Cornish The possessions of the Duchy of Cornwall, granted to the Black Prince by Edward the Third, 4 formerly consisted in part of the seventeen assessional manors of Helston- in-Trigg, Penmayne, Tintagel, Restormel, Penlyne, Penk- neth, Talskedy, Liskeard, Rillaton, Stoke Climsland, Tre- maton, Tewington, Tybesta, Moresk, Tywarnhaile, Helston-in- Kerrier, and Calstock. But the last six of these have been sold for the redemption of land-tax ; with an exception, however, of the mines and metallic minerals thereunder. 5 The lands of these seventeen manors consist, or consisted prior to the Act 7 & 8 Vict. c. 105, partly of freehold tenements, partly of con- ventionally tenements, and partly of wastes. 6 The right of property in the mines and minerals under the freehold tene- ments has always belonged to the tenants. 7 The lord of the manor of Tywarnhaile Tyas, in Cornwall, is entitled to a moiety of all tin mines, tin ore, tin dues, and tin toll under the demesne and conventionary lands of the assessional manor of Tywarn- haile ; and the Duke of Cornwall is entitled to a moiety of all like mines, ore, dues, and toll under the lands within the manor 1 See the preambles of 14 & 15 Vict. 5 See Rowe v. Brenton, Cone, c. 94 ; 15 & 16 Vict. c. 163 (local) ; Introd. ; preamble of 7 & 8 Vict. post, Chap. XXI., Sect. 1, a. c. 105, and schedules thereto. 2 See the preamble of 15 & 16 Vict. 6 lb. c. 163 ; post, Chap. XXI., Sect. 1, a, 7 Rowe v. Brenton, Cone. 315. See 3 See post, Chap. XXI., Sect. 2 (o). also Crease v. Barrett, u. s., 922. In 4 See Rowe v. Brenton, Cone. the latter case the ancient answers of Introd. IX. ; Crease v. Barrett, 1 C. conventionary tenants of a manor M. & R. 921 ; preamble of 7 & 8 Vict. were received in evidence against the c. 105. freeholders of the manor. SECT. 5.] PARTICULAR LOCALITIES. -yj of Ty warnhaile Tyas ; and the lord and the Duke are empowered by agreement in writing, enrolled in the duchy office, to deter- mine all questions arising between them respecting such rights. 1 Subject to such right of the lord of the manor of Tywarn- haile Tyas, the Duke of Cornwall is entitled to all mines and metallic minerals under the conventionary or former conven- tionally lands of the unsold assessional manors ; to all mines, minerals, stone, and substrata under the waste and other demesne lands of the same manors ; to all mine's and metallic minerals under the conventionary or former conventionary lands and former waste or demesne lands of the sold assessional manors ; and to all mines, minerals, stone, and substrata under all other lands of the unsold manors, and all mines and metallic minerals under all other lands of the sold manors, which by the award under the Act 7 & 8 Vict. c. 105 were determined to belong to the Duke. 2 (y) Sea, Sea-shore, and Rivets near or in Cornwall. All " mines and minerals " lying under the sea-shore between Cornish sea, high- and low-water marks in Cornwall, and under estuaries ^j ore ' a and tidal rivers and other places (below high-water mark) even below low-water mark in Cornwall, are, as between 3 the Queen and the Duke of Cornwall, vested in the Duke in right of the Duchy. 4 But from these are excepted " mines and minerals " in land below high-water mark, which is parcel of any manor belonging to her Majesty in right of her Crown. 5 All " mines 1 11 & 12 Vict. c. 83, s. 2. See, sold assessional manors belonged to before the Act, Curtis v. Daniel, 10 the Crown in right of the Duchy. East, 273. 3 As to the construction to be placed 2 7 & 8 Vict. c. 105, ss. 53, 54 ; the on these words, see Penryn v. Holm, schedules thereto, and the awards 2 Exch. D. 332. thereunder; 11 & 12 Vict. c. 83, s. 1. 4 The Cornwall Sub. Mines Act, Where discrepancies exist between the 1S58, 21 & 22 Vict. c. 109, s. 1. See, schedules and maps annexed to the as to the origin of this Act, E. v. awards, they are to be settled by refer- Keyn. 2 Exch. D. 155, 156,157,199, ence to the maps : 11 & 12 Vict. c. 83, 200, 201. The lines of high and lov s. 1. Eowe v. Brenton (Cone. ; 8 B. water marks are, if necessary, deter- & C. 737) had previously decided, that minable by arbitration: see s. 7 of copper ore raised from mines in the the Act. conventionary tenements of one of tli'' *' S. 1. 40 PROPERTY IN MINES ROYAL. [CHAP. II. and minerals" bulow low-water mark under the open sea adjacent to, but not part of, Cornwall, are, as between the Queen and the Duke, vested in her Majesty in right of her Crown. 1 Crown pre- sumptively entitled to mines royal. Presumption rebuttable. Sect. 6.— PROPERTY IN MINES ROYAL. The right of property in all mines of gold and silver within the realm, whether they be in the lands of the Crown or of subjects, is vested, prima facie, in the Crown, by prerogative. 2 In fact, mines of gold and silver are properly called " mines royal," and mines of all other substances " base mines." And it was formerly the law, that, if gold or silver was contained in base metal in the land of a subject, not merely the gold or silver, but such base metal also, belonged to the Crown by pre- rogative. 3 Now, however, no mine of copper, tin, iron, or lead, can be taken to be a royal mine, although gold or silver may be extracted thereout ; 4 and the owner of every such mine may hold and work the same accordingly. 5 But the Crown, and all persons claiming any royal mines under the Crown, have the right of pre-emption of the ore of any such mine in any part of England or Wales or Berwick-on-Tweed (other than tin ore in Devon and Cornwall), at certain specified rates of payment. 6 However, the presumption that the right of property in mines royal is vested in the Crown may be rebutted by evidence of ownership in a subject. A mine royal is not an incident inse- parable from the Crown, but may be severed from it by apt and precise words. 7 And if the Crown has a mine royal in the land of a subject and makes a grant of "mines" srmpli titer, the mine royal will pass : for otherwise the grant would be without effect ; the Crown, as such, not being entitled to the base mines in the land of a subject. 8 If, however, the Crown makes a 1 S. 2. '• Mines and minerals," for the above purposes, include quarries, veins, or beds of stone, and substrata of any other nature, and the ground and soil in, upon, or under which such mines and minerals, quarries, veins, or beds of stone and other substrata Ue : s. 8. 3 Case of Mines, Plowd. 236 ; Case of Saltpetre, 12 Rep. 12. 3 Case of Mines, a. s. 4 See 1 W. & M. c. 30, s. 3. 5 See 5 W. & M. c. 6, s. 1. 6 o W. & M. c. 6, s. 2 ; 55 Geo. 3, c. 134. 7 Case of Mines, Plowd. 336. 8 lb. 337. SECT. 7.] CONSTRUCTIVE POSSESSION. 41 grant of "mines" simpliciter in a piece of Crown land, and there are mines royal and base mines therein, the base mines only will pass : for the common intent of the grant is thereby satisfied. 1 The principle, that a grant by the Crown of lands will not pass gold or silver mines therein, unless they are expressly granted, applies to a grant of lands in the Colonies. 2 Sect. 7.— CONSTRUCTIVE POSSESSION. Where the entry into possession of part of a mine or quarry Constructive is rightful or under a colour of right, the possession of the whole may be presumed. 3 And a person in actual phj^sical possession of part of a mine or vein, who has an agreement for a lease of the whole, and who can compel the lessor to perform it, will be treated as constructively in possession of the re- mainder : 4 although, whether such possession will constitute a tenancy from year to year appears doubtful. 5 And acts of ownership by a wrongdoer in parts of the sub-soil of a single and undivided piece of land may be evidence, that he has taken possession of the whole. 6 In like manner rightful possession of one mine within tin-bounds is a sufficient possession of all the mines within them. 7 However, physical possession by a wrong- doer of part of a mine or vein does not create any conclusive presumption of his possession of the whole. 8 And a person alleging himself to have an agreement for a lease of the whole, if he cannot compel his lessor to perform it, is in the same posi- tion as a wrongdoer. 9 And mere physical possession of one 1 lb., Case of Alton Woods, 1 Rep. 4 Davis v. Shepherd, 1 Ch. 415. 41 a (n.), 46b. 5 Seep. 420. 2 See Woolley v. A.-G. of Victoria, 6 See Thew v. Wingate, 10 B. k S. 2 App. Cas. 163. As to mines royal in 714 n., 720 n., 721 n. ; Smith v. Stocks, Scotland, and settlements by a Crown ib. 701. 712. grantee of lands contained therein, 7 See Doe v. Alderson, 1 M. & W. see Breadalbane v. Jamieson, 2 Sess. 212. As to tin-bounds, see post, Cas. (4th ser.) 826. Chap. XVIII., Sects. 2, 3, 4. 3 See McDonnell v. McKinty, 10 Ir. 8 See McDonnell v. McKinty, u. t. L. R. 527. See also Taylor v. Parry, Thew v. Wingate, 1 B. & S. 721 n. 1 Scott, N. R. 576; Wild v. Holt, » Davis v. Shepherd, u. s., 415. 9 M. & W. 672. 42 CONSTRUCTIVE POSSESSION. [CHAT. II. seam of coal does not of itself create any presumption of the possession of all the other seams of coal lying thereunder. 1 A person who has a licence to work a whole mine or quarry, and who enters on a part, is only, for rating purposes, in occupation of the part. 2 1 See Low Moor Co. v. Stanley Co., frequent importance in questions aris- 34 L T N. S. 186, 189. i^g under the Limitation Acts, and in 2 R. v. Fayle, 27 L. T. 21. As to questions involving trespass. See, as licenses, see post, Chap. XII. The to these, post, Chap. XXII., Sect. 1, &.; principles stated in the text are of Sect, 2. b. CHAPTER III. WORKINGS AND USER FOUNDED ON PROPERTY OR POSSESSION— ORDINARY TENANCIES IN FEE OR FOR LIFE OR YEARS OR AT WILL— REVERSIONS AND REMAINDERS— TRUSTEES. Sect. 1.— WORKINGS— TENANT IN FEE. (a) Tenant in Fee Simple. A tenant in fee simple in possession of lands has, as between Tenant in fe« himself and his successor in title, an absolute right of property 8imp *" in the mines and quarries beneath and within them, as being part of his inheritance. 1 And he has a similar right in the minerals which they contain. 2 He may, in fact, commit what legal waste he pleases. 3 He has, therefore, a clear right, as between himself and his 1 successor in title, to open and work all mines and quarries beneath and within his lands ; and he may freely dispose of the produce of his work- ing. And his right to commit equitable waste is the same as 1 See the timber case of A-G. v. terested,\vill sometimes, in a due course Marlborough, 3 Madd. 537. The prin- of management, be directed by the ciples applicable to timber cases Court to be cut, when, under like cir- apply generally to cases of mines and cumstances, a mine would not be di- quarries (see Buckley v. Howell, 29 rected to be worked (see Re Smith, 10 Beav. 555, 556, 557). No doubt, if, Ch. 84, 85). However, in the former at the time when the title of a tenant case, the right in respect of a mine for life or years accrues, a mine or or quarry should not, it is submitted, quarry has been partially worked, he be compared with that in respect of a may continue the working ; whereas, wood or forest, but rather with that in if, at the same time, a wood has been respect of a single tree. And in the partially felled, he cannot, unless dis- latter, the direction is put upon some punishable for waste, fell the other such special ground, as that the trees trees in the wood (see the argument are too old, or that their cutting would in Dickin v. Hamer, 1 Dr. & Sm. 284, be for the benefit of other trees. 291, 292). And, on the other hand, - A.-G. v. Marlborough, u. .v. particular trees, or clumps of trees, in 3 3 Bl. Com. 223. which a person under disability is in- 41 WORKINGS FOUNDED ON PROPERTY [CHAP. III. his right to commit legal waste, and depends on the same principles. A tenant in fee simple in possession, subject to an executory devise over, is, prima facie, dispunishable for legal waste ; l although it is competent to a settlor by express words to render him punishable. 3 He cannot, however, prima facie, commit equitable waste. 3 Infant, An infant tenant in fee simple in possession may, by his guardian, work mines and quarries, open and new. 4 Lunatic. Mines or quarries belonging to a lunatic tenant in fee cannot, it would seem, be worked under the order of the Court, how- ever beneficial such a course may be for the lunatic. 5 The Court has not, it would seem, any power to sanction such a working, except through the medium of a statutory sale or lease. 6 No doubt, in Ex parte Tabbed , 7 an agreement by the committee of a lunatic tenant for life without impeachment of waste, 8 that coal under the lunatic's estate should be worked by the owner of the adjoining land, was established on the ground that the working would be for the benefit of the lunatic ; and the Lord Chancellor, 9 in sanctioning it, compared the case to that of cutting timber. However, in Re Smith, 10 it was said, 11 that, wherever the Court has made orders with respect to the cutting of a lunatic's timber, it has done so in a due course of management on some such special ground as that the timber was too old, or that the cutting of it was for the benefit of other timber ; 12 but that to direct the severance of a lunatic's minerals would be to direct a disposition of a portion of the inheritance ; that, accordingly, no analogy existed between the 1 See the timber case of Turner v. 5 Re Smith, 10 Ch. 85. Wright, 1 Joh. 740 ; 2 De G. F. & J. 6 See Lun. Reg. Act, 1853, ss. 116, 234 ; overruling the dicta to the con- 124, 130, 131 ; post, Chap. VII., Part trary in Robinson v. Litton, 3 Atk. A., Sect. 1, a ; Chap. VIIL, Sect. 1, a. 209 ; Stansfield v. Habergham, 10 Ves. * 6 Ves. 428. 278 ; and Wright v. Atkyns, T. & R. 8 A tenant for life, without impeach- 157. See also Blake v. Peters, 10 ment of waste, stands with respect to W. R. 826 ; 1 De G. J. & S. 345. legal waste on the same footing, in 2 Blake v. Peters, u. s. most respects, as a tenant in fee : see a Turner v. Wright, u. s. infra, Sect. 2, b (0). 4 Lyddal v. Clavering, cited Amb. 9 Lord Eldon. 371 n. As to open and new mines, 10 10 Ch. 86. see ante, pp. 22, et seq. See also the u Per James, L.J. provisions of the Act 44 & 45 Vict. ,2 See Ex parte Bromfield, 1 Ves. J. c. 41, referred to infra, Sect. 4. 453. SECT. 1.] OR POSSESSION- — TENANT IN FEE. 45 two cases; and that the Court had no jurisdiction to direct the severance of a lunatic's minerals. And, although Ex 'parte Tabbert was not cited in Re Smith, it cannot stand beside it as a decision. 1 However, where such a course is for a lunatic's benefit, his personalty will be laid out under the sanction of the Court in expenses incident to the working of his open mines or quarries, as, for instance, in the erection of a fire engine ; and, in sanctioning it, the Court will pay no regard to the interest of his heir on the one hand, or of his personal representative on the other. 2 (/3) Tenant in Tail. A tenant in tail in possession may commit what legal and Tenant in tail, equitable waste he pleases, and convert to his own use the property wasted. And, to enable him to do so, it is not neces- sary that he should bar the entail. 3 A tenant in tail of lands entailed by Parliament has, primd facie, the same right to commit waste as an ordinary tenant in tail. 4 But his right would be restricted, if the exercise of it would or mio-ht involve the destruction of a mansion-house which the Legisla- ture desired to preserve. 5 A tenant in tail, after possibility of issue extinct, occupies, with respect to waste, the same position as a tenant for life without impeachment of waste. 6 An infant tenant in tail in possession may, by his guardian, Infant. work mines and quarries, open and new. 7 The observations 1 Not merely is lie Smith the more timber case ; but the principle would recent decision, but it is possible, that. apply to the removal of minerals, if the jurisdiction which was dis- which acted as a support to a claimed in that case, was properly mansion. exerciseable in Lord Eldon's time, 6 See the timber case of Williams it ceased to be properly exerciseable V. Williams, 15 Ves. 427, 430 ; A.-G. after the passing of the Lun. Reg. Act, r. Marlborough, 3 Madd. 538, 530 ; 1853. Turner v. Wright, 2 De G. F. & J. 2 Oxenden v. Compton, 2 Ves. J. 247. See, however, the timber case 73. of Abrahall v. Bubb, 2 Swanst. 173. 3 Co. Litt. 224, a. ; 2 Bl. Com. 115. See infra, Sect. 2. b (0). See the timber cases of Jervis v. " See Lyddal r. Clavering, cited Bruton, 2 Vern. 251; A.-G. v. Marl- Amb. 371 n. ; Clavering v. Claver- borough, 3 Madd. 531. 532. ing, Mosely, 223. See also the provi- 1 A.-G. v. Marlborough. 3 Madd. sions of the Act. 44 & 45 Vict. c. 41. 530, 540. referred to. infra, Sect. 4. 5 lb., pp. 545, ct acq. This was a 46 WORKINGS FOUNDED ON PROPERTY [CHAP. III. already x made as to the working of mines or quarries belonging Lunatic to a lunatic tenant in fee simple apply in the case of a lunatic tenant in tail. General pre- sumptive right to work open mines and quarries. Irish leases. Sect. 2.— WORKINGS -TENANT FOR LIFE OR YEARS OR AT WILL. a. Rights as respects Open Mines or Quarries. 2 (a) Generally. It is the general prima facie right of a tenant for life or years, as between himself and the reversioner or remainder- man, to work open mines : and if he does so work, he has the right of property in the minerals, which by the working he converts into chattels. 3 And if he derives his interest under a will, his rights are irrespective of whether trustees of that will have or have not been appointed by the testator. 4 And the same principles apply in the case of open quarries. 5 It is no doubt true, that stone or slate is frequently dug from a quarry for the purpose of building or repairing houses on the property of the owner, and that a person subsequently becoming the tenant for life or years cannot, by the mere fact of such digging, claim the right to work the quarry. But in such a case the quarry has never in fact become an open quarry. 6 Similarly, where a bog, which had been previously cut for sale, is demised for life or years as bog, the tenant may, prima facie, cut and sell turf thereout. 7 And a lessee under any lease made on or after the 1 Ante, p. 44. 2 As to open mines or quarries, see ante, pp. et seq. 3 Saunders' Case, 5 Co. 12 a. ; Co. Litt. 54 b. ; Astry v. Ballard, 2 Mod. 103; Campbell y. Leach. Amb. 748 ; Clavering v. Clavering, Mosely, 223 ; 2 P. Wms. 388 ; Plymouth v. Archer, 1 B. C. C. 160 ; Stoughton v. Leigh, 1 Taunt. 402 ; Viner v. Vaughan, 2 Beav. 466 ; F errand v. Wilson, 15 L. J. 41. 53 ; S. C. 4 Ha. 388 ; Spencer v. Scurr, 31 Beav. 334 ; Bagot v. Bagot, 32 Beav. 516; Clegg v. Row- land, 2 Eq. 160 ; Miller v. Miller, 13 ih. 263; Elias v. Snowdon, &c. Co.. 4 App, < !as. 454. 4 See Thursby v. Thursby, 19 Eq. 413. 5 Elias v. Griffith, 8 Ch. D. 521, 526, 532 ; nom. Elias v. Snowdon, &c, Co., 4 App. Cas. 454 ; overruling Mans- field v. Crawford. 9 Ir. Eq. Rep. 271 : see also Moyle v. Mayle, Owen, 66. 67 ; Ferrand v. Wilson, 15 L. J. Ch. 54 ; Huntley v. Russell, 13 Q. B. 583 ; Tucker v. Linger, 21 Ch. D. 27. 6 See Elias v. Griffith. 8 Ch. D. 532 : see ante, p. 24. 7 Anon., 1 Hog. 147 ; Jack v. Creed, 2 Hud. & Bro. 143 : Coppinger v. Gub- bins, 3 Jo. & L. 410. These cases must be taken to overrule Waterparfc v. Austen, 1 Jones. 627 n. SECT. 2.] OR TOSSESSION — TENANT FOR LIFE OR YEARS. 47 1st January, 1861, of land in Ireland containing open mines has, prima facie, a statutory right to work them and remove the minerals, whether they are granted by name or not in the lease. 1 If a reversioner or remainderman complains, that a Onus of proof ,, . . „ . . . . . . when fact of tenant for hie or years is improperly working a mine or quarry ; being open and the latter alleges, that it was open when he entered into dls i Hlted - possession ; and no lapse of time has occurred ; the onus is in general on the latter to prove his allegation. 2 If, however, a tenant for life or years shows, that there had, in fact, been work- ings when he entered into possession, the onus is in general shifted, and it then lies on the reversioner or remainderman to show, that the workings were not such as to constitute the mine or quarry an open mine or quarry. 3 In like manner, where a tenant for life or years of a mine or quarry has once shown, that a lease of the mine or quarry had been granted, and that work- ings coeval therewith had taken place on the land subject to the lease ; and his own subsequent workings have extended over a long period ; and during that period the owner of the inherit- ance was capable of ascertaining all the facts, was competent to act, and remained passive ; it lies on such owner to show, that the workings did not take place under the authority of the lease. 4 On similar principles, a tenant for life or years was held Proceeds of entitled to receive the capital of the proceeds of a sale by the trustees of his settlement of gravel dug from lands, the profits of which had usually for many years been gained by working the gravel pits. The whole of the gravel was, in effect, a mine, and each gravel pit a fresh pit in the mine. 5 So a tenant for life or years is entitled to the capital of rents or royalties Rents. payable under a lease of mines made by, or in pursuance of powers given by, his settlor ; 6 or payable in respect of a new 1 23 & 24 Vict. c. 154, s. 27. 4 Elias v. Snowdon, kc. Co., v. ..°> ; not now law : see White r. Walsh, Clegg v. Rowland, u. .<. 1 Jones 626, n. ; Coppinger v. Gub- vaste. 5-1 WORKINGS FOUNDED ON PROPERTY OR [CHAP. III. the whole of the mines in question are new mines is imma- terial. 1 Meliorating And a limited owner may be free from liability for working, if his working has amounted to meliorating waste, and is based upon custom. 2 Where, for example, an agricultural tenant agreed to cultivate the land according to the most approved system, and to commit no waste, and to use it for agricultural purposes only ; and the land was in a district where large num- bers of flints came to the surface in the ordinary course of ploughing, and their removal was necessary in order to cultivate the land effectually ; and there was evidence, 3 that it was the custom of the country for tenants to remove such 4 flints and sell them, when not prohibited by their leases ; and the tenant did not plough for the purpose of getting the flints, but com- plied strictly with the custom ; it was held, that the custom was reasonable and good, and that the landlord had no remedy. 5 Indeed, similar principles have in some cases been applied independently of custom. A limited owner has, for instance, been held free from liability for removing turf from a bog and converting it to his own use, where the removal had enabled a deeper layer of earth to be planted or ploughed. 6 So, he may, it has been said, be free from liability for removing stones from land and selling them, if the stones had previously covered the land to such an extent as to render it unfit for cultivation. 7 It 1 See Whitfield v. Bewit, 2 P. Wms. " Harris ?•. Ekins, v.s.,per Bacon, V. 241' ; Daly v. Beckett, 24 Beav. 120. C. : see also Jesus Coll. v. Bloome, Amb. 2 See generally as to meliorating 55, 56. A limited owner cannot, it ia waste, Doherty v. Allman, 3 App. Cas. submitted, work, or be authorized by 709. the Court to work, on the mere ground, 3 Cotton, L. J., doubted (see Tucker that the working should not be de- v. Linger, 21 Ch. D. 37, 38) whether f erred. The power to cut particular the custom had been proved. clumps of timber in a due course of * Observe the limited natm*e of the management (Cowley v. Wellesley, 1 custom. Eq. 656 ; 35 Beav. 635 ; Honywood 5 Tucker v. Linger, 21 Ch. D. 18. It r. Honywood, 18 Eq. 310; and cases is understood, that this case is now there cited) furnishes no analogy upon under appeal to the House of Lords. this point : see and consider He Smith. 6 Coppinger v. Gubbins, 3 J. & L. 10 Ch. 85 ; ante, p. 43, n. l . Lord 417, 418 ; Harris v. Ekins, 20 W. R. Bomilly, however, in Bagot v. Bagot 999. See, however, the question asked (32 Beav. 522 ; Set. 188), appears to by Jessel, M. R., in Tucker v. Linger, have laid down the law differently. 21 Ch. D., p. 32. SECT. 2.] POSSESSION TENANT FOR LIFE OR YEARS. 55 should be observed, however, that a right of removal does not necessarily imply a right of appropriation or sale. There may, as Lord Coke says, 1 be waste " by the vendition." And it seems open to question, whether, independently of custom, a right of appropriation or sale can be properly founded on the doctrine of meliorating waste. 2 At all events, independently of custom, a person will not, it seems, on the mere assertion, that he will improve land after he has committed a waste, be allowed to commit the waste in the first instance. 3 It has been held, that an intermediate assignee of a term, Intermediata who has never himself worked, but has received royalties under sub-leases granted before he came into possession, and has parted with his interest before the commencement of proceed- ings by the reversioner, is not liable to account either for the profits made, or for the royalties paid to him, during his posses- sion of the term. 4 (/3) " Without Impeachment of Waste." An estate may be given to a person for life or years " without "Without im- ,, peach ment impeachment of waste. 5 And a tenant for lite or years without of waste." impeachment of waste may, prima facie, open and work new mines or quarries. 6 And, although, as has been seen, 7 he has no right of property in the mines or quarries themselves ; nor, so long as they remain unsevered, in the minerals contained therein ; he has a right of property in such minerals, as soon as, by working, he converts them into chattels. 8 The words " without impeachment of waste " give a power to the lessee which will produce an interest in him, if he exercises his power 1 Co. Litt. 53 b. lutions in Bowles' Case, L. C. Conv. 2 See Tucker v. Linger, 21 Ch. D. 37 ; Dicconson v. Talbot, 6 Ch. 38. 27, 28, per Kay, J. Where it is desired that a tenant for 3 Coppinger r. Gubbins, 3 J. & L. life should be empowered to work new 418, per Lord St. Leonards. mines or quarries, the power should be 4 See Elias v. Griffith, 8 Ch. D. 521, given in express terms, and be made 534. subject in express terms to all proper 5 As to the right of a person claim- conditions. For the form of such a ing under an executory trust to be power, see Dav. iii. pp. 1076, 1077. made dispunishable for waste, see 7 See ante, pp. 32, 33. Stanley v. Colthurst, 10 Eq. 259, and 8 Seethe eighth resolution in Bow los' cases there cited. Case, u. ».; Pyne v. Dor, 1 T. R. 55, 56. 6 See the seventh and eighth reso- 50 Lunatic. Lien for ex- penditure. Remedies — damages — account. WORKINGS FOUNDED ON PROPERTY OR [cHAP. HI. during the privity of his estate." 1 The observations already 2 made as to the working of mines or quarries belonging to a lunatic tenant in fee simple apply in the case of a lunatic tenant for life without impeachment of waste. c. Lien for Expenditure. A tenant for life, who for many years made large annual payments in respect of foreign mines to keep them continually worked, and so prevent their being forfeited, was, although they were unproductive, held entitled, as against the remainder- man, to a charge on the estate, for his outlay. But he was, in the same case, held disentitled to any charge in respect of moneys, which he voluntarily expended on copper works in England. 3 d. Improper Workings— Legal Waste— Remedies.* (a) Damages — Account. If the injured party has the right of property in the minerals improperly worked ; if, for instance, he is the reversioner or remainderman in fee or in tail ; 5 he may maintain an action to recover them : 6 or he may have an action for damages : 7 or an account. 8 And his right to an account was never, as in legal 1 See the seventh resolution in Bowles' Case, L. C. Conv. 37 : see also Williams r. Williams, 15 Ves. 425. 2 Ante. p. 44. 3 Dent v. Dent, 30 Beav. 363. 4 Formerly if a limited owner, im- peachable of waste, committed waste, the remedy of forfeiture of the place wasted was open to the person entitled to an estate of inheritance in remainder or reversion, if he issued a writ of waste ; and he was also entitled, to treble the value of the thing wasted (6 Ed. 1, c. 5 ; Jes. Coll. v. Bloome, 3 Atk. 263 ; Wentworth v. Turner, 3 Ves. 3). But these remedies were abolished by 3 & 4 W. 4, c. 27. s. 36. Cf. as to copyholds, and church lands, post, Chap. IV., Sect. 1, b ; Sect. 3, a. r. 5 See ante, p. 33. 6 Trover formerly lay : seeClavering v. C. Mosely, 224. See also the timber cases of Bowles' Case, L. C. Conv. 37 ; Bewick v. Whitfield, 3 P. Wms. 268 ; Jesus Coll. v. Bloome, Amb. 34 ; Garth v. Cotton, 1 Lead. Cas. 751, 782, 790 ; Gent v. Harrison, Joh. 517. 524 ; Sea- gram v. Knight, 2 Ch. 632. ~> Trespass formerly lay ; or, if the minerals had been sold, an action for money had and received : see Gent r. Harrison, u. s., 526 ; Seagram v. Knight, ii. s. ; Higginbotham v. Haw- kins, 7 Ch. 676. 8 See Jesus Coll. v. Bloome, Amb. 55, 3 Atk. 262 ; Garth v. Cotton, 1 L. C. 795 ; Jefferys v. Smith, 1 J. & W. 302 ; Parrott v. Palmer, 3 M. & K. 632 ; Ferrand v. Wilson, 4 Ha. 388 ; Coppinger v. Gubbins, 3 J. & L. 397 ; Elias r. Griffith. 8 Ch. D. 525, 526. SECT. 2.] POSSESSION — TENANT FOR LIFE OR YEARS. 57 waste in timber cases before the Jud. Acts, confined to cases Mining opera- where he was entitled to an injunction; 1 mining operations species of having always been looked on as a species of trade. 2 And, of trade - course, his rights are not put an end to by the death of the wrongdoer : he may have an account against his estate. 3 If waste is committed by a tenant for life, acting in collusion Trustees to with the firtt remainderman in fee or tail in esse ; or by a person tingeninre" 11 " who combines in himself the two characters; to the prejudice of mainclerii - an intervening tenant in fee or tail not then in esse, whose rights are protected by the interposition of an estate given to trustees to preserve contingent remainders ; the trustees may have an action for an account. 4 Indeed, as contingent remain- ders are no longer destructible, 5 the only purpose, which can at the present day be served by introducing, in a settlement, a limitation to trustees to preserve them, is that the contingent remaindermen may be protected against waste ; and the land, the timber, and the mines, which together constitute the in- heritance, preserved for them entire. 6 And, if waste is com- Tenant for mitted by a tenant for life, acting in collusion with a remainder- mainder 5 " man ; or by a tenant for life, who is also himself a remainderman ; or by a tenant for life, where there is no remainderman in fee or in tail in esse ; a tenant for life in remainder, even if impeach- able of waste, may have an account. 7 And, on the same principle, that a tenant for life in remainder may have an 1 See Jesus Coll. r. Bloome, Amb. mondson, 8 ib. 814 ; Glasbrook v. 35 ; Parrott v. Palmer, 3 M. & K. 632 ; Eichardson, 23 W. R. 50 ; Rule v. Gent v. Harrison, Joh. 526 ; Higgin- Jewell, 18 Ch. D. 662. botham v. Hawkins, 7 Ch. 676. 3 Garth v. Cotton, 1 L. C. 790, 791, 2 See Story v. Windsor, 2 Atk. 630 ; 792 ; Lansdowne v. L., 1 Madd. 140 ; Lawton v. L., 3 Atk. 13, 16 ; Jesus Bagot v. Bagot, 32 Beav. 509. For Coll. v. Bloome, u.. v.; Dudley v. Ward e, the form of the account, see Bagot v. Amb. 112, 114 ; Pulteney v. Warren, Bagot, Set. 187, 188. 6 Ves. 89 ; Flamang's Case, 7 Ves. 4 Garth v. Cotton, u. .?.. 757, 787 ; 308 ; Wren v. Kirton, 8 Ves. 502 ; Birch- Wolfe r. Birch, 9 Eq. 683. Crawshay v. Maule, 1 Swanst. 495, 5 See 40 & 41 Vict. c. 33. 528 ; Jefferys v. Smith, 1 J. & W. 298, 6 See Garth v. Cotton, u. g., 771, 774, 302 ; Eowe v. Wood, 2 ib. 555 ; Rose 776, 781, 794, 79S, 799. The trustees r. Nixon, ib. ; Williams v. Atten- are themselves liable, if they consent borough, T. & R. 73, 74 ; Fereday v. to the waste, ib. 779. Wightwick, 1 R. & My. 49 ; Taml. 7 See the timber cases of Harcourt 260; Parrott v. Palmer, v..?. ; Tredwen r. r. White, 28 Beav. 303 ; Birch-Wolfe Bourne, 6 M. & W. 463 ; Hart v. Clarke, r. Birch, 9 Eq. 6S3. 6 De G. M. & G. 250 ; Clegg v. Ed- 58 WORKINGS FOUNDED ON PROPERTY OR [CHAP. III. Measure of damages. action for an account against a tenant for life who commits waste, he may, on the death of the wrongdoer, when he becomes tenant for life in possession, make the estate of the wrongdoer accountable. 1 Where an account has been directed against a wrongdoer or against his estate, interest at the rate of £4 per cent, per annum will be charged ; 2 and there will be no allowance for repairs or improvements. 3 But, although interest is in strictness due from the actual time of the wrongful working, it has been said, that the courts will endeavour to deal liberally with the estate of a deceased limited owner, and will be dis- inclined to allow an account of interest to be taken from a period anterior to his death. 4 Indeed it has been said, that this disinclination will exist, although it may have been impos- sible for the remainderman to have commenced his action in the lifetime of the limited owner. 5 The reason is stated to be that, in most cases, the parties being family relations, it would not be for their benefit to go into a long and expensive inquiry as to the nature of the waste committed, and the circumstances under which it was committed. 6 In other respects the account will be taken on the principles, which would have determined the measure of damages, if the wrongdoer had been a stranger. 7 (/3) Mode of dealing ivith proceeds. No person in If, at the time of the improper working, there is not any esse entitled . • i i /> • to inheritance, person in esse entitled to an estate of inheritance m reversion or remainder, the severed chattels must be realized, invested, and dealt with ; or the amount to be accounted for must be in- 1 Birch-Wolfe v. Birch. 9 Eq. 683. 2 See Bagot v. Bagot, 32 Beav. 509, 519, 520 : see the timber cases of Garth v. Cotton, 1 L. C. 795 ; Williams v. Bolton, 1 Cox, 72 ; Leeds v. Am- hurst, 14 Sim. 357 ; 2 Ph. 117. 3 Bagot v. Bagot, u. s., 523. 4 See Bagot v. Bagot, u. s., 519, 520. This case was appealed, but com- promised, with the approval of Lord Westbury, who expressed his con- currence in Lord Romilly's view as to the time from which the account of interest should be taken : see 33 L. J. Ch. 122, n. See also the timber case of Leeds v. Amhurst, 14 Sim. 357 ; 2 Ph. 117. In Garth v. Cotton, u. s., 795, interest was only allowed from the filing of the bill. 5 Bagot v. Bagot, u. s. 6 lb. "' See Tucker v. Linger, 21 Ch. D. 29, per Kay, J. As to a stranger, see post, Chap. XXII., Sect, 2, c. SECT. 2.] POSSESSION TENANT FOR LIFE OR YEARS. 59 vested, and dealt with ; as part of the corpus of the estate. 1 The wrongdoer will not, however, be allowed to receive the income ; 2 but the income will be accumulated, and invested during his life, and added to the original investments. 3 And, if at the death of the wrongdoer, there is a person entitled in possession to an estate of inheritance, such person will be entitled absolutely to the principal of the total investments. 4 But if, instead of being succeeded by a person entitled in pos- session to an estate of inheritance, the wrongdoer is succeeded by a tenant for life, the income of the total investments will be paid to such tenant during his life, and, if necessary, to his successor in like manner, until some person becomes entitled in posses- sion to an estate of inheritance ; who will thereupon also become absolutely entitled to the principal. 5 And, in order to entitle the tenant for life, who succeeds to the wrongdoer, to the income, it is not necessary that he should be unimpeachable of waste. 6 If, however, at the time of the improper working, there is Person in esse . . entitled to in- any person in esse entitled, either indefeasibly 7 or defeasibly, 8 heritance. to an estate of inheritance, the property in the severed chattels ; or the amount to be accounted for ; will belong abso- lutely and immediately to such person, or (if there are more than one), to the first of such persons. And the right of the person so entitled is not affected by the circumstance that between his estate and that of the wrongdoer is interposed in the order of the limitations an estate for life in esse without impeachment of waste. 9 Accordingly, if an estate is settled Illustrations. 1 See Bagot v. Bagot, 32 Beav. 509, 8 In Bagot v. Bagot, ii. «., Lord Eo- 522. milly laid it down, that the amount to 2 lb. be accounted for would not belong to 3 lb. the person entitled to the estate of in- 4 lb. heritance, unless such person were 5 lb. entitled indefeasibly, and could not 6 lb. so belong if there was a possibility of 7 lb. ; Bell v. Wilson, 1 Ch. 309. a prior tenant in fee or tail coming See the 5th resolution in Bowles' Case, into esse. This, however, is only a L. C. Conv. 43, et seq. ; and the timber dictum, and is opposed to the earlier cases of Whitfield v. Bewit, 2 P. Wms. authorities, and Sir G. Jessel refused 239 ; Garth v. Cotton, 3 Atk. 751, 1 L. to follow it in Cavendish v. Mundy, C. 820 ; Lee v. Alston, 1 B. C. C. 193, W. N. 1877, p. 198. 3iZ>., 37; Seagram v. Knight, 2 Ch. 628; 9 See the timber cases of Pigot v. Higginbotham v. Hawkins, 7 Ch. 676 ; Bullock, 1 Ves. jun. 484 ; Gent v. Honywood v. Honywood, 18 Eq. 306. Harrison, Joh. 517, 524. 60 WORKINGS FOUNDED ON PROPERTY OR [CHAP. III. Owner of in- heritance a wrongdoer. Consequent upon A. for life ; remainder to B., either with or without im- peachment of waste, for life ; remainder to the unborn son of B., in fee or in tail ; and A. engages in a series of improper work- ings ; and during these workings the son of B. comes into esse ; and A. is called on to account ; the money to be accounted for will be dealt with as follows. So far as it can be attributed to the workings which took place prior to the birth of B.'s son, it will be invested and accumulated until A.'s death : the income of such accumulations will then be paid to B. during his life ; and, upon B.'s death, the principal will belong to his son abso- lutely. But so far as it can be attributed to workings subse- quent to the birth of B.'s son, it will belong immediately and absolutely to the son. 1 In order, however, to entitle the owner of an estate of inherit- ance to the produce of an improper working, he must be him- self free from blame in respect of the working. If he be him- self the wrongdoer, he will not be allowed to benefit by his wrongdoing. Thus, if lands are settled upon A. for life, re- mainder to B. for life, remainder to the son of B. in tail, re- mainder to the right heirs of X. ; and B. has no son in esse; and A. is the right heir of X. ; and A. improperly works ; he will not be allowed to receive the produce. 2 In like manner, if the owner of an estate of inheritance collude with the tenant for life in an improper working, he will not be allowed to receive the produce of the working, to the prejudice of an inter- vening person not then in esse, who is entitled to a contingent estate of inheritance, and whose rights are protected by the interposition of an estate given to trustees to preserve con- tingent remainders. 3 In each of these cases the produce of the 1 See Bagot v. Bagot, 32 Beav. 509. This case was appealed, but compro- mised with the approval of Lord Westbury upon terms which support the propositions in the text. See 33 L. J. Ch. 122 n. For the form of the enquiries and accounts directed in Bagot v. Bagot, see Seton, pp. 187, 188. 2 See the timber cases of Williams v. Bolton, 1 Cox, 72 ; Powlett v. Bolton, 3 Ves. 374 ; Birch- Wolfe v. Birch, 9 Eq. 683. 3 See the timber cases of Garth v. Cotton, 1 L. C. 782; Birch- Wolfe v. Birch, u. s. ; Honywood v. Holly- wood, 18 Eq. 311. The Court must, however, in every case, be satisfied that collusion has actually taken place. If the limited owner, who commits waste, has in other respects improved the estate, he may be allowed to keep the produce of the waste : Birch-Wolfe v. Birch, u. s. SECT. 2.] POSSESSION — TENANT FOR LIFE OR YEARS. 61 working or the amount to be accounted for will be accumulated mode of i r and invested during the life of the tenant for life; and, on his death, it will be dealt with as part of the corpus of the estate. 1 Moreover, if the owner of an estate of inheritance by his acts 0w ?er of in- heritance adopt and confirm the improper working, he cannot claim to be adopting entitled in prcesenti to the moneys arising from them ; but ' will only be entitled to them after the death of the tenant for life ; and the tenant for life will, during his life, be entitled to the income. 2 (y) Injunction. In addition to his other remedies, the remainderman or rever- Injunction, sioner may have an injunction. 3 And if there be no other re- mainderman in esse except a remainderman for life, an injunc- tion may be granted at his instance. 4 So if A. be entitled for life, remainder to B. for life, remainder to C. in fee or tail ; and A. commit waste ; C. may have an injunction. 5 So a ground landlord may have an injunction to restrain waste. 6 And trustees to pre- serve contingent remainders may have an injunction to restrain waste committed by a tenant for life who is either himself the remote remainderman, 7 or who acts collusively with the remote remainderman. 8 And in such cases an intermediate remainder- man, even if impeachable for waste, has a similar remedy. 9 And it is not necessary for a plaintiff to wait until waste is actually committed. He may obtain an injunction upon a threat to commit it. 10 Before, however, an interlocutory injunction will Reluctance to <• i i i • grant inter- be granted to restrain the working of mines, the working of locutory in- junction. 1 See Williams v. Bolton, 1 Cox, 72 ; G83. Powlett v. Bolton, 3 Ves. 374. 5 See Tracy v. Tracy, 1 Vern. 23 ; 2 See Gresley v. Mousley, 3 De G. Garth v. Cotton, 1 L. C. 785 : Farrant F. & J. 433. v. Lovel, 3 Atk. 723. 3 Flamang*s Case, 7 Yes. 308 ; Viner 6 See Farrant v. Lovel. a. s. v. Vaughan, 2 Beav. 46f> ; Ferrand v. 7 See Ferret v. Perrot, u. s. ; Birch- Wilson, 4 Ha. 388 ; Coppiuger v. Wolfe v. Birch, v. s. Gubbins, 3 J. & L. 397 (observed upon s Garth v. Cotton, 1 L. C. 757. 759, in Dohertyy. Allman.3 App. Cas. 734). 769, 770, 77fi, 777; Birch- Wolfe v. For the form of the injunction, see Birch, ?/. s. Viner v. Vaughan, u. s. 9 Perrot v. Perrot it. s. ; Birch- 4 See the timber cases of Perrot v. Wolfe v. Birch, 7/. s. Perrot, 8 Atk. 94 ; Davies v. Leo. f> "i sj C e Gibson v. Smith, 2 Atk. 182. Yes. 787 ; Birch-Wolfe v. Birch, 9 Eq. tations. Q2 WORKINGS FOUNDED ON' PROPERTY OR [CHAP. III. which has been actually commenced, a clear title to relief must be established. The Court is otherwise reluctant to interfere ; on account of the serious injury which may be caused. 1 e. Improper Workings — Legal Waste — Loss of Remedies. Stat, of Limi- The Statute of Limitations apparently begins to run, in cases of legal waste, as against a remainderman or reversioner, enti- tied to an estate of inheritance, and not under disability, from the time of the severance, and not from the death of the limited owner ; 3 and operates as a bar after six years. 3 In cases where the waste is legal ; but where, either on account of the wrong- doer acting in collusion with the remainderman, or on account of the wrongdoer being also the remainderman, or on account of there being no remainderman in fee or tail in esse, but only a remainderman for life, the remedy was, before the Jud. Acts, exclusively in equity ; the statute apparently begins to run from the death of the limited owner. 4 According to one of such cases, the statute does not operate except after a lapse of twelve years from- the death of the limited owner ; 5 but, in another case, it was laid down, that the statute operated after a lapse of six years. 6 The doctrine, that the statute should not operate as a bar except after a lapse of twelve years appears to have proceeded on the assumption, that a portion of the inheritance 1 See Clavering v. Clavering, 2 P. doer should become the personal Wms. 388, Mosely. 223. See also representative of the injured party, Filewood v. Palmer, Mosely. 171 ; the running of the statute will be Anon., Amb. 209 ; and cf. Grey v. suspended during the administration ; Northumberland, 13 Ves. 236, 17 ib., the hand to receive, and the hand 2S3 ; Birmingham Canal Co. v. Lloyd, liable to account, being the same : see 18 Ves. 516 ; Field v. Beaumont, 1 Seagram v. Knight, v. s. Swanst. 208 ; Hilton v. Granville, 1 3 Ferrand v. Wilson, 4 Ha. 388 ; Cr. & Ph. 297 ; Wheatley v. West- Seagram v. Knight, ;/. *. ; Higgin- minster Brymbo Coal Co.. 9 Eq. 551, botham v. Hawkins, v. s. ; Elias v. 552. As to prevention of waste under Griffith, 8 Ch. D. 528. 23 & 24 Vict. c. 154 (Ireland), see 4 See the timber cases of Harcourt ss. 35, et seq. v. White, 28 Beav. 303 ; Birch- Wolfe 2 See the timber cases of Gent v. v. Birch, 9 Eq. 683. Harrison, Joh. 517, 526 ; Seagram v. 5 Harcourt v. White. ?/. .«., 308, per Knight, 2 Ch. 628 : Higgihbotham v. Lord Romilly ; 37 & 38 Vict. c. 57. Hawkins. 7 Ch. 676. But in case " Birch-Wolfe v. Birch, u. s., per it should happen that the wrong- James V.-C. SECT. 2.J POSSESSION TENANT FOR LIFE OR YEARS. 63 had been filched away, and that the same rule ought to apply to a claim to have it restored as would apply to a claim to the land itself. 1 But the more modern decisions regard all cases of wrongful working (whether constituting waste or' otherwise) as cases in which portions of the inheritance have been, by sever- ance, converted into chattels ; and in which the claim made by the injured party is a claim either to chattels, or to the proceeds of them.' 3 If, however, it be a fact, that, in any case of waste, Delay, the statute would now be held not to operate until twelve years had elapsed, it seems also to be the fact, that delay may be a fatal bar to relief, independently of the statute. 3 Relief may be Acquiescence, also barred by acquiescence. 4 Where a landlord lay by, and permitted a tenant impeachable of waste to expend large sums on a bog with a view to cuttiug it, he was refused an injunction. 5 However, where the remedy is barred, it is only barred as Bar only in respects the chattels actually severed and abstracted. For severed ° example, improper workings, for however long a period, by a chattels - tenant for life or years, will not create a right to continue them ; or disentitle the reversioner or remainderman, when he pleases, to interpose and prevent the continuance. 6 /. Equitable Waste. A tenant for life or years, without impeachment of waste, Equitable cannot, prima facie, commit equitable waste. 7 He is bound to waste ' work with due care and attention to the interests of those who come after. 8 In a case, therefore, where a lessee for years was unimpeachable of waste, it was held, that he was not justified 1 See Hie timber ease of Leeds v. end of 20 years, less two days, after Amhurst, 2 Ph. 117, per Lord Gotten- the death of the wrongdoer. a&m. 4 See Leeds v. Amhurst, 2 Ph. 117. 2 In which ease the Act applying 5 Burroughes v. Hayes, Hay. & Jo. would be 21 Jac. 1, c. 16. See the 597. timber cases of Seagram v. Knight, " Conrtown v. Ward, 1 Sch. & L. 8 ; 2 Ch. 628; Birch-Wolfe V. Birch, 9 Elias v. Griffith, 8 Ch. D. 52], 524*, Eq. 683 ; and see the law as to break- 525. ing bounds, post, Chap. XXII, Sect. 2. 7 See Vane v. Lord Barnard. 2 Vera. Cf. Port v. Turton. 2 Wils. 172. 738. 3 See Harcourt v. Wh'ite, 28 Bcav. s y ce R owe ,. Wood, o j & w 55g 303 ; where the bill was riled at the per Lord Eldon. 61 WORKINGS FOUNDED ON PROPERTY OR [CHAP. III. in diffffins all the soil of a field for bricks, as this would be, in 00 ••it Remedies. effect, destroying the field. 1 A person, who commits equitable waste, is subject to the same liability to pay damages, or to account, as a person who commits legal waste. 3 The decisions are conflicting as to the manner in which, where a tenant for life or years commits equitable waste, the severed chattels, or the amount to be accounted for, should be dealt with. Accord- ing to some authorities, the severed chattels, or the amount to be accounted for, should be dealt with in the same manner as if the improper working had been legal waste : 8 but, according to others, should, in all cases, strictly follow the uses of the settlement ; accumulations being made until the death of the wrongdoer, and (in the event of his being succeeded by a tenant for life or years) the income from his death being paid to such tenant for life or years. 4 A person, who commits equitable waste, Stab, of Limi- may be restrained by injunction. 5 In cases of equitable waste the Statute of Limitations apparently begins to run, not from the time of the severance, but from the death of the limited owner ; 6 and, according to decision, does not operate as a bar except after a lapse of twelve years. 7 Sect. 3.— WORKINGS— REVERSIONER OR REMAINDERMAN. Reversioner or Under no circumstances, not even where the tenant for life remainderman. , -i,, i s • i.i ■ • j or years has no right to work, 8 is the reversioner or remainder- man entitled to do so ; either to the prejudice of the tenant for life or years ; 9 or, by acting in collusion with the latter, to the prejudice of a subsequent remainderman. 10 The interest of the 1 London v. Web, 1 P. Wms. 527. 6 Sec the timber case of Leeds v. 2 Ante, p. 56. Amhurst, 14 Sim. 357; 2 Ph. 117. 3 Ormond v. Kynnersley, Butler v. - lh., 37 & 38 Vict. c. 57. But, Kynnersley, 7 L. J. (0. S.) Ch. 150 ; semble, this is not now law : see 8 ib. 67 ; S. C. 5 Madd. 369 : 2 S. & ante, pp. 62, 63. S, 15; 2 Bli. N. S. 385; Lushington 8 gee ante, pp. 48, 51. --. Boldero, 15 Beav. 1. '■' See Dickin v. Hamer, 1 Dr. & Sm. 4 Lansdowne v. L.. 1 Madd. 140; 2!>5 : see also the timber case of Bishop Wellesley v. W., 6 Sim. 503 : and see v. Bishop, 10 L. J. Ch. 302. the law as laid down by Jessel, M. R., '" See the timber cases of Evelin, in Honywood v. H., 18 Eq. 311. 2 Freem. 53; Fleming v. Carlisle, - s London v. Web. 1 P. Wms. 527. 1 L. C. 786. SECT. 3, 4.] POSSESSION — REVERSIONER OR REMAINDERMAN. 65 reversioner or remainderman in the mines and quarries is the same as his interest in the other parts of the inheritance — a reversion or remainder, strictly so called ; and he cannot exercise his rights by anticipation. And if during the possession of a Mode of deal- tenant for life or years impeachable of waste, minerals are ceeds. severed from the inheritance by the act of the reversioner or remainderman, the tenant for life or years is entitled to have the proceeds invested, and the income paid to him during his tenancy. 1 So, if no actual assignment has been 'made to a lady for her dower, 2 and the remainderman works new mines or quarries in lands in respect of which she is dowable without her consent, although she is not entitled to any interest in the corpus, she is entitled, prima facie, to receive one-third of the income derivable from the produce. 3 A tenant for life or Acquiescence. years may, however, by acquiescing in the exercise of his rights by anticipation by a reversioner or remainderman, dis- entitle himself to the remedy which he would otherwise have.* Where on an Irish tenancy from year to year a notice to quit Irish leases, is given by the landlord with a view to the use of land for turbary ; or the opening or working of any coal, ironstone, lime- stone, or other mineral, or of a stone quarry, clay, sand, or gravel pit, or the construction of any incidental works or build- ings ; or the obtaining of brick earth, gravel, or sand ; and the notice to quit so states ; it is no objection to the notice that it relates to part only of the holding. But the tenant is entitled to compensation, and to a proportionate reduction in his rent. 5 Sect. 4.— WORKINGS— TRUSTEES. Trustees have no right, prima facie, of their own motion, to Trustees- work mines or quarries. However, the Conv. Act, 1881, 6 con- igsi.' tains provisions empowering trustees, in certain cases, to do so. If and so long as any person, who, but for those provisions, 1 See and consider Bishop v. Bishop, Kindersley, V. C. : see also the timber 10 L. J. Ch. 302 ; Dickin v. Hamer, case of Bishop v. Bishop, v. s. 1 Dr. & Sm. 284. 4 See Dickin v. Hamer, u. g. 2 See post, Chap. XIII., d. (a). 6 39 & 40 Vict. c. 63, s. 3. 3 See Dickin v. Hamer, u, s. 298. per 6 44 & 45 Vict. c. 41. OG WORKINGS AND USER FOUNDED ON [CHAP. III. would be beneficially entitled to the possession of land, is an infant, and being a woman is also unmarried, the trustees appointed for that purpose by the settlement (if any) ; or, if there are none so appointed, the persons (if any) who are for the time being trustees, with power of sale of the settled land or of part thereof, or with power of consent to or approval of the exercise of such a power of sale ; or, if there are none, any persons appointed as trustees for that purpose by the Court, on the application of a guardian or next friend of the infant ; may enter into and continue in possession of the land. And such trustees may continue the working of mines, minerals, and quarries, which have usually been worked. But, unless the infant is entitled without impeachment of waste, they cannot work new mines or quarries. For, where the infant is impeach- able for waste, they are not entitled to commit waste. They may apply any net income from the workings for the mainten- ance, education, or benefit of the infant, or they may pay it to the parent or guardian to be applied for the same purposes ; and the residue of the income must be applied according to the provisions of the Act. 1 Express However, in all proper cases, an instrument under which mines or quarries are settled, whether it be a strict settlement, or a settlement containing a trust for sale and a power to post- pone it, or a settlement containing a power of sale, should contain express powers as to their working and management. And the trustees (if any) of the settlement should in general be made the donees of the powers. By this means the preference of one of the beneficiaries to another will be best avoided ; the trustees being bound to act fairly to both. 2 Indeed, during minorities the trustees should always be made the donees. 3 Where trustees are made the donees of working powers, the property in the machinery and stock belonging to the colliery in question should be vested in them ; with powers to repair and replace them, and on trust to permit them to be used in the working, and with power to sell them. 4 & 42. trustees to carry on mining opera- 2 See Wightwick v. Lord, 6 H. L. tions, see Dav. 3, pp. 1126 et seq. Cas. 236; Miller v. Miller, 13 Eq. 3 For the form of a power, see Dav. 3, 267, 2G8 ; Thursby v. Thursby, 19 ib. p. 1082. 395, 413. For the form of a power to * For the form, see ib. 1132 et seq. powers. SECT. 5.] PltOrERTY OR POSSESSION TRUSTEES — USER. G7 Sect. 5.— USER. a. Ordinary Tenancies in Fee. The owner in fee simple or tail of lands containing mines or Containing quarries has an absolute right to use them, and the chamber which genera i] y , incloses them, and the space or shell which the working of the minerals creates, and the subsoil generally, in any manner he thinks proper. And where the owner in fee simple of lands grants them, Grant in fee excepting the underlying mines, he has, with respect to those m ines. mines, a similar right. And as, by excepting the mines, he, ipso facto, excepts the chamber which incloses them, 1 he has a similar right with respect to that chamber, and with respect to the space or shell which the working of the minerals creates. The containing chamber is not purely and solely a species of property which can only be made profitable by the removal of the inclosed minerals ; with the incidental 2 rights of using all proper means for obtaining them. 3 It is a species of pro- perty which is as free as other property from restrictions as to its mode of user. 4 The grantor may, therefore, use the space or shell created by his previous working of the inclosed minerals as a thoroughfare for the carriage of minerals gotten out of his adjoining land. 5 And if, instead of previously working the inclosed minerals, and then utilising the space or shell thereby created, he prefers to cut a passage through those minerals for the express purpose of using it, and to accordingly use it, as a thoroughfare for the carriage of other minerals, he is entitled to do so. 6 And what he may do himself, he may, by the grant of wayleaves, authorise an adjoining owner, or any number of 1 See ante, p. 10. 3 Ch. D. 826, 835 : see also Bowser v. 2 See post, Chap. XIV., Sect. 3, a (a). Maclean, 2 De G. F. & J. 420; Bal- 3 See Hamilton v. Graham, L. R. 2 lacorkish, &c. Co. v. Harrison, L. R. Sc. & D. 166, per Lords Hatherley, 5 P. C. 49, 62 ; Ramsay v. Blair, 1 App. Westbury, and Colonsay. Lord Cas. 701. Chelmsford inclined to the opposite 5 See Proud v. Bates, 34 L. J. Ch. view : see pp. 171, 172, 175, 176. 411 ; Hamilton v. Graham, L. R. 2 4 See Proud v. Bates, 34 L. J. Ch. Sc. & D. 166, 176, 179, 180. 406, 411 ; Hamilton v. Graham, L. R. 6 See ib, 2 Sc. k D. 166; Eardley v. Granville, f 2 08 USER FOUNDED ON PROPERTY OR [cHAP. III. Limits of right. Other modes of severance. Grant or ex- ception of minerals. adjoining owners, to do. 1 And his rights in respect of ventila- tion and drainage are, of course, as unlimited as his rights in respect of transport. 2 And if any water is found in his mines, or percolates into them, he is, as owner of the mines, entitled to appropriate such water and use it in any way he pleases. 3 In- asmuch, however, as an exception of the underlying mines is not equivalent to an exception of the subsoil generally, 4 rights of user founded upon an exception of underlying mines are ex- clusively exercisable within that portion of the subsoil which actually consists of mines, and are not exercisable within the intervening or surrounding soil or strata. 5 Similar principles apply where the owner of land grants it by way of lease, except- ing the mines ; or where he grants the mines in fee simple, and excepts the surface ; or where a severance in fee simple is effected by an Act of Parliament ; or where the subject-matter of a grant, or an exception, are " veins," or " seams," or " quarries." 6 Where, however, according to the true construction of the instrument of severance, there is a grant or exception of minerals only, different principles apply. In no such case does the con- taining chamber form any part of the grant or exception. In no such case, therefore, is the mineral owner entitled to use the minerals for the purpose of carrying through them the minerals gotten in an adjoining mine, or for the purpose of ventilating or draining an adjoining mine. And, if a space is created by the partial working of such minerals, he can only use such space for necessary purposes incident to the work- ing of the remaining minerals. And when the minerals are worked out, his right to use the shell, which remains, ceases altogether. 7 1 See Hamilton v. Graham, L. R. 2 Sc. & D. 176. 2 See ib. 180. 3 See Actons Blundell, 12 M. &W. 354 ; Ballacorkish, &c. Co. v. Harri- son, L. R. 5 P. C. 62, 63. See, how- ever, Chasemore v. Richards, 2 H. & N. 192, per Coleridge, J. ; 7 H. L. Cas. 385, per Lord Wensleydale. 4 See ante, p. 20. 3 See Ramsay v. Blair, 1 App. Cas. 704. 6 See ante, pp. 10, 11. 7 See and consider Bowser v. Mac- lean, 2 De G. F. & J. 415 ; Proud v. Bates, 34 L. J. Ch. 406 ; Hamilton v. Graham, L. R. 2 Sc. & D. 166 ; Balla- corkish, &c. Co. v. Harrison, ib. 5 P. C. 49 ; Eardley v. Granville, 3 Ch. D. 826, 834, 835 ; Ramsay v. Blair, 1 App. Cas. 701. See ante, p. 18. SECT. 5.] POSSESSION FREEHOLDS AND LEASEHOLDS. 69 Proud v. Bates 1 illustrates the principles in question. There Proud ». n i t c ,i Bates. a lease made by the lord of a manor of waste land of the manor, then recently inclosed by the lessee, contained an exception of mines and quarries, with full power to win and work the same, with free wayleave and passage to, from, and along the same, on foot or on horseback, and with all manner of carriages. A way, available for the carriage of minerals, lay exclusively within the excepted mines. It was not, however, sufficiently high to admit of a horse moving his head, whilst the vehicle to which he was attached was being backed. Under these circumstances the lessor chipped off a part of the rock, which lay above the ex- cepted mines ; and claimed a right under the reserved power to carry along the way in its altered state, as well minerals worked within the excepted mines, as also minerals within the manor, although not under the demised property. It was contended, that not merely could this claim not be sustained with respect to the way in its altered state, but that it could not be sustained with respect to the way in its original condition. The first contention failed for reasons which will be stated hereafter. 2 The second also failed ; the Court holding, that the lord had an absolute right to do what he pleased with the excepted mines, and had, therefore, a right to carry through them minerals from wherever gotten. So in Hamilton v. Graham? There, Hamilton v. a feu charter contained an exception in favour of the Duke of Hamilton and his heirs of all coal and limestone within the lands granted, with full working powers. The duke made a passage through the excepted coal, and used it for the con- veyance of other coal and limestone, to which he had a similar right under adjoining lands. It was held, that this was a proper user of the passage. 4 i 34 L. J. Ch. 406. G. F. & J. 420 ; Ballacorkish, &c. Co. 2 Post, Chap. XVI., Sect. 2, b (7). v. Harrison , L. R. 5 P. C. 49 ; Ramsay 3 L. R. 2 Sc. & D. 166. v. Blair, 1 App. Cas. 701 ; Eardley v. * See also Bowser v. Maclean, 2 De Granville, 3 Ch. D. 826. -.y USER FOUNDED ON PROPERTY OR [CHAP. III. b. Life Tenancies and Leaseholds — Reversions and Remainders. Containing It has been already seen, that where a person becomes the chamber— tenan t f or life or years, or from year to year, or even the tenant generally. J . . at will, of lands, he becomes entitled to the right of possession of the subsoil generally; l and that the same principle applies to that particular portion, which consists of mines or quarries; to the chamber which incloses those mines or quarries ; and to the space or vacuum created by their partial or total working. 2 It follows, that, during the duration of his interest, a tenant for life or years, or from year to year, or at will, of lands has, speaking generally, as absolute a right to use as he thinks proper the mines or quarries beneath or within such lands, the containing chamber, the space or vacuum created by his workings, and the subsoil generally, as if he were the owner in fee simple. 3 Lease except- And where the owner of land grants the mines or quarries therein by way of lease, and excepts the surface, the lessee must have a similar right with respect to those mines or quarries, the containing chamber, and the space or vacuum which the working of the minerals creates. 4 No doubt it appears to have been stated in two cases of mining leases, that the lessee did not, according as he worked the minerals, acquire any interest in the space or vacuum thereby created. 5 But in one of them 6 it was probably intended to confine the dictum to a proprietary (as compared with a possessory) interest : for a stranger, who was using the vacuum as an aircourse, was, at the instance of the lessee, re- strained from continuing to do so. Subject, however, to this, the dicta in question cannot, it is submitted, be supported. 7 It is 1 See ante, p. 32. son, B. 2 See ante, p. 33. s See Powell v. Aikin, 4 K. & J. 3 See Lewis v. Branthwaite, 2 B. 358, per Wood, V. C, where the ope- & Ad. 437 ; Keyse v. Powell, 2 E. & B. rative words (so far at least as appears 144; in connexion with Eardley v. from the report), were " mines, veins, Granville, 3 Ch. D. 826. and seams of coal ;" Spoor v. Green, 4 See and consider Milne v. Taylor, L. R. 9 Exch. 109, per Cleasby, B., 16 L. T. 172. The lessee of an ex- where the operative words were hausted mine " might use the mine " veins or seams of coal." for any other purpose — to store 6 Powell v. Aikin, u. a. goods iu, for instance," ib.,2>er Alder- ~> See and consider Jegon v. Viviau, SECT. 5.] POSSESSION — FREEHOLDS AND LEASEHOLDS. 71 impossible to indicate any peculiarity in a mining or quarrying lease strictly so called, which should in the above respect distinguish it from a lease of land which happens to contain a mine or quarry. 6 Ch. 742, 750, 758 ; post, Chap. XL, should prima facie mean, see ante, Sect. 4. As to what the operative words pp. 9, 10, 11. in Powell v. Aikin and Spoor v. Green CHAPTER IV. WORKINGS AND USER FOUNDED ON PROPERTY OR POSSESSION — MANORIAL AND CHURCH LANDS- LANDS SUBJECT TO MORTGAGE OR CONTRACT- LANDS OF RAILWAY OR HARBOUR COMPANIES. Sect. 1.— WORKINGS— COPYHOLDS AND CUSTOMARY FREEHOLDS. a. Copyholds. — Open Mines or Quarries} Copyholder A copyholder of a manor, having obtained by his grant a may work open t f t ^ bsoil f y s tenement, with all the mines and mines or & quarries. quarries therein contained, 2 may, if the mines or quarries were open at the date of the grant, dig them and take the profits. 3 On similar grounds, if stones fall by accident on a copyholder's land, after it has become such, they belong to the copyholder. 4 b. Copyholder — Neiv Mines or Quarries. 1 Limited rights A copyholder is perhaps entitled to open and work new mines as respects . . n , f . 15 new mines or or quarries m a reasonable degree for repairs or personal use. & quarnes. ^ nQ i a copyholder may, it is said, dig for marl : but he ought to lay the marl upon the same copyhold land, and not upon any General dis- other land. 6 However, the lord of a manor having, in general, other^respects ^ ne r ig nt °f property in the mines and quarries in the copyhold —waste. tenements, 7 a copyholder cannot, in general, prima facie, except under the above circumstances, open or work mines or quarries therein, which were unopened at the date of his grant. 8 For, 1 As to open and new mines or quar- & See and consider Heydon v. Smith, ries, see ante, pp. 22 et seq. 13 Co. 68 : and cf. the position of a 2 Ante, p. 34. tenant for life impeachable of waste. 3 See and consider Peachy v. Somer- ante, p. 51. set, 1 Str. 447, 454 ; Bourne v. Taylor, 6 Pastor's Case, Winch, 8. 10 East, 189, 202, 203. ' Ante, p. 34. 4 Dearden v. Evans, 5 M. & W. 11. " Winchester v. Knight, 1 P. Wms. SECT. 1.] WORKINGS COPYHOLDS. 73 by so doing, lie would commit an act of waste. 1 In a case where large masses of stone had fallen from time to time from certain overhanging cliffs upon the field of a copyhold tenement, and had thereby become partially imbedded in the soil ; but there was no evidence to show, that any particular portion of them had fallen since the copyholder in question became such ; it was, on similar grounds, held, that such stones were the property of the lord, and that the copyholder could not remove them for his own profit. 2 However, a copyholder may, for the sake of disencumbering his land, remove stones therefrom, even though such stones be not very small. 3 The remedy of forfeiture is open to the lord of a manor whose Remedies for copyhold tenant wrongfully opens mines or quarries beneath or workfngs— within the copyhold tenement. 4 The lord may also, in general, forfeiture - as having the right of property therein, 5 maintain an action to Action to recover the minerals improperly worked ; 6 or he may recover damageTand damages ; or he may have an account. 7 And. of course, the death account - of the wrongdoer does not destroy the remedy. 8 However, where the lord of a manor stood by for a long period, and allowed copy- holders, without objection on his part, to open and work mines, and expend a large sum of money on mining operations, he was held disentitled to an account prior to the filing of his bill. 9 Mining operations are so uncertain, that if a party, who may be entitled to relief, does not apply for it promptly, it may be 406; Bourne v. Taylor, 10 East, 189, 6 Trover formerly lay: see Winchester 196 ; Rowe v. Brenton, Cone. 313 ; v. Knight, 1 P. Wms. 406 ; Parrott v. Dearden v. Evans, 5 M. & W. 11 ; Palmer, 3 M. & K. 644; Eardley v. Cuddon v. Morley, 7 Ha. 202 ; Bowser Granville, u. s. 833 : cf. Dearden r. v. Maclean, 2 De G. F. & J. 419 ; Salis- Evans, 5 M. & W. 11. bury v. Gladstone, 9 H. L. C. 708 ; "' See Winchester v. Knight, 1 P. Hext v. Gill, 7 Ch. 713 ; Eardley v. Wms. 406 ; Parrott v. Palmer, 3 M. & Granville, 3 Ch. D. 826, 833. K. 644 ; Portland v. Hill, 2 Eq. 765. 1 Eardley v. Granville, w. s. The die- Trespass formerly lay : or, if the mine- tum to the contrary in Rutland's Case, rals had been sold, an action for money 1 Sid. 152, cannot be supported. had and received. An account would " Dearden v. Evans, 5 M. & W. 11. not, however, before the Judicature 3 lb. Acts, have lain, unless possession by 4 Hanmer v. Chance, 4 De G. J. & S. the lord had been shown : see Parrott 636, 637 ; Eardley v. Granville, 3 Ch. v. Palmer, 3 M. & K. 645. D. 833 : see Parrott v. Palmer, 3 M. & 8 See Winchester v. Knight, 1 P. K. 639. Wms. 407. 5 Ante, p. 34. 9 See Parrott v. Palmer, 3 M. & K. 643. 74 WORKINGS FOUNDED ON PROPERTY OR [CHAP. IV. Injunction. inequitable to give it to him. 1 The lord may also, in general, have an injunction to restrain the future wrongful working. 2 How- ever, upon a similar principle to that applied in the case of an account, 8 where the lord has stood by for a long period, and allowed copyholders to expend a large sum on mining opera- tions, he will not be allowed an injunction, but will be left to his remedy in damages. 4 c. Lord — New Mines or Quarries* General dis-' The possession of all mines and quarries in the copyhold ability to work ,. ., -iiic.iiti -a new mines or tenements being in the copyholders, 6 the lord has not, 'prima (.names. facie, any right to enter upon a copyhold tenement in order to bore for or work any new mines or quarries therein. 7 And, as it has been already seen, 8 that the copyholder is, prima facie, under a similar disability, it follows that, where there is no custom in a manor to regulate the rights of the parties, neither the copyholder without license of the lord, nor the lord without license of his copyholder can open and work new mines or quarries beneath or within the copyhold tenement. 9 Remedies for A copyholder may, in general, recover damages against his workings— lord for wrongfully entering upon the copyhold, and working account! ""* tne urines or quarries ; 10 or he may have an account. 11 And 1 See Parrott r. Palmer, 3 M. & K. 643. 2 See Parrott v. Palmer, 3 M. & K. 632 ; Cuddon v. Morley, 7 Ha. 207 ; Green. Hosp. v. Blackett, 12 Jar. 151 ; Portland v. Hill, 2 Eq. 765 : and cf. Richards v. Noble, 3 Mer. 673, over- ruling Dench v. Bampton, 4 Ves. 700. 3 See ante, p. 73. 4 Parrott v. Palmer, u. s. For the form of the account and injunction, see Portland v. Hill, Set. 202. 5 As to new mines or quarries, see ante, pp. 22 et seq. 6 Ante, p. 34. 7 See Player v. Roberts, Sir W. Jones, 243 ; Gilb. on Ten. 327 ; Townley v. Gibson, 2 T. R. 707 ; Grey v. Northum- berland, 13 Ves. 236, 17 ib. 282 ; Bourne v. Taylor, 10 East, 189 ; Rowe v. Bren- ton, Cone. 313, 8 B. & C. 766 ; White- church v. Holworthy, 4 M. & S. 340 ; Salisbury v. Gladstone, 9 H. L. C. 708 ; Portland v. Hill, 2 Eq. 780 ; Hext v. Gill, 7 Ch. 713 ; Eardley v. Granville, 3 Ch. D. 832 ; A.-G. v. Tomline, 5 Ch. D. 750. 8 Ante, p. 72. 9 See Winchester v. Knight, 1 P. Wms.406; Bourne r. Taylor, «■.*.; Rowe v. Brenton, it. s. ; Hilton v. Granville, 1 Cr. & Ph. 294 ; Salisbury v. Gladstone, u. s. ; Aspden v. Seddon, 1 Exch. D. 510. 10 Trespass formerly lay : see Player v. Roberts, u. s. ; Bourne v. Taylor, u. s. ; Eardley v. Granville, 3 Ch. D. 833. 11 A.-G. v. Tomline, v. s. SECT. 1.] POSSESSION — COPYHOLDS — CUSTOMARY FREEHOLDS. 75 these remedies are open to him, although he may be only a reversioner. 1 It has been decided, that the measure of damages Measure of to which a copyholder is entitled, whose lord wrongfully enters upon the copyhold, and works and gets the minerals therein, is the gross amount produced by their sale, less the expenses of the working and of the sale, and less such a sum by way of profit as would have induced a third person to undertake the working. 2 But the decision was apparently disapproved of when the same case was before the Court of Appeal ; as being too favourable to the copyholder. 3 A copyholder may also, in Injunction. general, whether he is entitled in possession or reversion, have an injunction to restrain a wrongful working. 4 Before, however, an interlocutory injunction will be granted, where the working of a mine has been actually commenced, the copyholder must show clearly that the lord has no right to work. Except in clear cases, the Court is reluctant to restrain the further working of a mine, the working of which has been actually commenced ; on account of the serious injury and inconvenience which may be thereby caused. 6 d. Customary Freeholds. The right of property in mines or quarries beneath or within Customary ft ,,..,,? 1.1 i • freeholds. customary freeholds being in the lord, and the possession being in the tenant, 6 precisely the same rights and disabilities exist with respect to the working of the mines and quarries as exist with respect to the working of mines and quarries in copyhold tenements. 7 1 A.-G. v. Tomline,5 Ch. D. 761. also ante, p. 62, n. \ and other cases 2 See ib. 750. there cited. 3 lb. 15 Ch. D. 150, 153, 154. 6 Ante, p. 35. 4 Grey v. Northumberland, 13 Ves. ' See Winchester v. Knight, 1 P. 236, 17 ib. 282; A.-G. v. Tomline, 5 Wms. 406 ; Portland v. Hill, 2 Eq. 765, Ch. D. 750. 777 : see as to copyholds, ante, pp. 72 5 Grey v. Northumberland, w. s. : see ct seq. 76 WORKINGS FOUNDED ON PROPERTY OR [CHAP. IV. Sect. 2.— WORKINGS— WASTES. Lord has The lord of a manor, having the right of property in the general right { d quarr i es beneath or within the waste or common to work. t. _ # . . of the manor, 1 may, prima facie, open mines, or dig brick earth, gravel, marl, or loam, therein. 2 And he may work or dig either for his own use or for the purpose of sale. 3 And he may, it would seem, authorise any other person, not being a lessee, to do so. 4 His rights in these respects proceed from his right of property in the soil, and are independent of the Statute of Merton. 5 In- deed, they are outside the purview of the statute ; the space But must produced by the digging not being inclosed. 6 The lord cannot, leave sufficient however, do anything destructive of common rights. 7 He must, common. J ° . therefore, prima facie, in working his mines or quarries, or dio-o-ing his earth or gravel, leave sufficient common for his com- moners. 8 And he is probably liable, if his commoners' beasts, for want of sufficient fences, fall into pits dug by him in the waste. 9 But the fact, that, for any substantial period, there has been a sufficiency of common, is 'prima facie evidence, that an actual sufficiency has been left. 10 And, in every case, the onus lies on the commoners to show, that the lord is availing himself unduly of his rights. 11 1 Ante,-p- 36. 172; Melm. MSS. E. 53 Line. Inn 2 See Filewood v. Palmer, 5 Vin. Abr. Library, " The lord isabsolutely entitled p. 8, § 33 ; Mosely, 172 ; Place v. to the mine, provided he leaves suffi- Jackson, 4 D. & Ry. 318; Hall v. cient common." See also Arlett v. Ellis, Byron, 4 Ch. D. 667, 675 ; Robinson v. 7 B. & C. 346 ; Wakefield v. Buccleuch, Duleep Singh, 11 Ch. D. 798,815,830, 4 Eq. 613 ; Buccleuch v. Wakefield, 831. The dicta to the contrary in L. R. 4 H. L. 407 ; Hall v. Byron, «. s. ; Bullen and Sheene's Case, Godb. 343 ; Lascelles v. Onslow, w. . See Robinson v. Duleep Singh, 11 433, 450. Ch. D. 830. 5 20 H. 3, c. 4 : see Hall v. Byron, » Hall v. Byron, 4 Ch. D. 667, 680, v. s. 675 ; Robinson v. Duleep Singh, per Hall, V. C. The onus would be V" *• 831. upon the lord, if the act complained 6 Robinson v. Duleep Singh, u. s. 831. of were approvement by him : see post, • See 3 Cruise, 85. Chap. VII., Part B., Sect, 2, a. 8 See Filewood v. Palmer, Mosely, SECT. 2, 3.] POSSESSION — WASTES CHURCH LANDS. 77 An injunction will issue, where the lord wrongfully claims Injunction the right, although he denies any present intention, to do the ^wron^i. act complained of. 1 The County Court has jurisdiction to grant an injunction, subject to an appeal by any person aggrieved to the High Court ; but the jurisdiction does not abridge or inter- fere with other existing remedies. 2 Sect. 3.— WORKINGS— CHURCH LANDS. a. Bishop — Dean and Chapter — Prebendary. Independently of the Act 23 & 24 Vict. c. 124, the rights of Archbishop an archbishop or bishop in respect of mines or quarries beneath blsh ° P " or within the ancient lands of his see are these : — He may dig stones for the purpose of reparation ; 3 or he may sell the stones, provided he applies the money in repairs. 4 And he may work mines or quarries lawfully open at the time when his title com- menced, and apply the produce to his own use. 5 But he cannot open or work new mines or quarries. 6 However, the above rights can hardly be exercised at the present day. For the Act 23 & 24 Vict. c. 124, provided, that, on every avoidance of the see of any archbishop or bishop in England after the passing of the Act, the lands of the see (with certain exceptions) should vest absolutely in the Eccl. Comms. ; 7 and that, as soon as pos- sible thereafter, lands sufficient to secure the statutory income 1 Hall v. Byron, 4 Ch. D. 679, 680. « His right in this respect cannot For the form of such injunction, and be less than that of a parson, as to of a decree quieting the title of com- which see post, p. 79. moners to rights of common, see ib. 6 Knight v. Mosely, Amb. 176. See 680, 681. See also Comms. of Sewers also the timber cases of Bishop of v. Glasse, 19 Eq. 134, 165 ; Set. 216. Durham, 35 Ed. 1, Rot. Pari., vol. i., 217. p. 198, no. 46 (cited in Liford's Case, 2 39 & 40 Vict. c. 56, s. 30. 11 Co. 49 a ; and in Jefferson v. Dur- 3 See the timber cases of Stockman ham, 1 Bos. & P. 109) ; Stockman v. v. Whither, 1 Roll. Rep. 86 ; Salis- Whither, u, s. ; Salisbury's Case, u. s. ; bury's Case, Godb. 259 ; Jefferson v. Bradley v. Stratchy, Barn. 399, 400 ; Durham, 1 Bos. & P. 132 ; Herring v. Herring v. St. Paul's, u. s. As to open St. Paul's, 3 Swanst. 509. and new mines or quarries, see ante, 4 His right in this respect must be pp. 22 et sea. the same as that of a parson, as to 7 s. 2. which see post, p. 79. 78 WORKINGS FOUNDED ON PROPERTY [CHAP. IV should be assigned as an endowment to such archbishop or bishop ; l and that, on the request of any archbishop or bishop, a like arrangement might be made before an avoidance. 2 And, with respect to the lands so assigned as an endowment, certain powers were created, which did not, except through the medium Deprivation- f the grant of a lease, 3 include powers of working. If an Fnlimction! " archbishop or bishop improperly works mines or quarries, he may be deprived of his see : 4 and a prohibition or injunction may be obtained against him by the Metropolitan, or an injunction on an information by the Attorney-General. 5 Dean and Where lands are vested in a Dean and Chapter the fee simple Chapter. belongs in strictness to the Dean and Chapter ; and, at common law, they had a complete power to work all mines and quarries beneath and within such lands, and to apply the produce to their own personal benefit. 6 However, since the passing of the Acts known as the Eestraining Acts 7 it has always been held, that a Dean and Chapter cannot dig stones in their lands ; or sell the stones except for repairs, or for the purpose of applying the money in repairs. 8 The inheritance is the inheritance of the Church, and the Dean and Chapter have no power to divide it amongst themselves. 9 And by the Act 31 & 32 Vict. c. 114, provisions are made for vesting, with the consent in writing of any Dean and Chapter in England under their common seal, and of the visitor of such Dean and Chapter, the estates of such Dean and Chapter, in the Ecclesiastical Commissioners for such con- sideration and on such terms as the Commissioners think reason- able ; and for assigning sufficient lands to such Dean and Chapter i S. 3. Winchester v. Wolgar, 3 Swanst. a s. 4. 493 n. 3 S. 8. See post, Chap. VIIL, Sect. 6 See Marlborough v. St. John, 5 De 5, d. (a). G. k Sm. 179, 180. 4 Phil. Eccl. Law, 1613, citing " 13 Eliz. c. 10 ; 13 Eliz. c. 20 ; 14 Bagg's Case, 11 Co. 98 b. See Liford's Eliz. c. 11 ; 14 Eliz. c. 14. Case,i&., 49 b. ; Salisbury's Case, Godb. 8 Ross v. Adcock, L. R. 3 C. P. 664. 259 ; Jefferson v. Durham, 1 Bos. & See the timber cases of Wither v. P. 122 ; Herring v. St. Paul's, 3 Winchester, 3 Mer. 421, 427 ; Herring Swanst. 510 ; Ross v. Adcock, L. R. v. St. Paul's, 3 Swanst. 492, 510, 515 : 3 C. P. 664. Marlborough v. St. John, 5 De G. & 5 Bradley v. Stratchy, Barn. 399, Sm. 179, 180. 400 ; Jefferson v. Durham, v. s. 131 ; 9 Herring v. St. Paul's,?/. 5. 509, per Wither v. Winchester, 3 Mer. 427; Sir T. Plumer. SECT. 3.] OR POSSESSION — CHURCH LANDS. 79 as an endowment, in lieu of any annual sum payable to them by the Commissioners. 1 A prebendary is punishable for waste. 3 In the Act 31 & 32 Prebendary. Vict. c. 114, provisions, similar to those with respect to the estates of Deans and Chapters, are contained with respect to estates of deaneries, canonries, prebends, and archdeaconries in England. 3 If a prebendary improperly works mines or quarries, a pro- Prohibition or hibition or injunction may be obtained against him by the patron. 4 b. Parson — Open Mines or Quarries} A parson 6 may work open mines or quarries, and apply the Parson may , , . „ work open produce to his own use.' mines or quarries. c. Parson — New Mines or Quarries." A parson may dig stones in his glebe lands for the purpose Limited rights „ • a r\ l Hi c ' i c i • as respects oi repairs. Or he may sell the stones lor the purpose ot applying new mines or the money in repairs actually about to be done, if the stones c i uames - themselves cannot be conveniently used for that purpose. 9 But he cannot be allowed to work to an unlimited extent to provide a general repairing fund. 10 And, except for repairs, a parson cannot, General dis- primd facie, of his own will, open and work new mines or quarries. 11 ot ] ier respects. 1 See ss. 3, 6. Marlborough v. St. John, u. s. ; Bartlett 2 See the timber cases of Bradley v. v. Phillips, 4 De G-. & J. 414 ; Eoss v. Stratchy, Barn. 399 ; Acland v. Atwell, Adcock, L. R. 3 C. P. 665. 2 Rolle's Abr. 813 ; 3 Swanst. 499 n. 8 Knight v. Mosely, Amb. 176. See 3 See s. 13. also the timber cases of Strachy v. 4 Bradley v. Stratchy, u. s. ; Acland Francis, 2 Atk. 217 ; Marlborough v. Atwell, ii. s. v. St. John, 5 De G. & Sm. 178 ; 5 As to open and new mines or Sowerby v. Fryer, 8 Eq. 417, 422. quarries, see ante, pp. 22 et seq. 9 lb. See also the timber case of 6 Where glebe lands are vested in a Wither v. Winchester, 3 Mer. 427, 428. parson or vicar, the inheritance is in 10 Marlborough v. St. John, u. s. 178, abeyance. It is not, for instance, in 181 ; Sowerby v. Fryer, u. s. 422. the patron, or in the patron and ordi- n Knight v. Mosely, Amb. 176 ; nary : see Co. Litt. 340 a ; Hoskins Marlborough v. St. John, 5 De G. & v. Featherston, 2 B. C. C. 552 ; Hunt- Sm. 179 ; Bartlett v. Phillips, 4 De G. ley v. Russell, 13 Q. B. 588. Nor is it & J. 414 ; Holden v. Weekes, 1 J. & in the parson or vicar : Marlborough H. 278 ; Ross v. Adcock, L. R. 3 C. P. v K St. John, 5 De G. & S. 179. 664. See also the timber cases of ' Knight v. Mosely, Amb. 176 ; Liford's Case, 11 Co. 49 a ; Saccar's Huntley v. Russell, 13 Q. B. 572, 591 ; Case, Moore, 917 ; Bradley v. Stratchy, 80 Remedies for wrongful workings — action to recover — account and damages. WORKINGS FOUNDED ON PROPERTY [ciIAP. IV. His position is that of a tenant for life impeachable of waste. 1 And it is clear, that the consent of the patron alone will not enable him to do so. 3 And, although he had, at common law, with the consent of the patron and the ordinary ; 3 or (if there were both a patron paramount and an immediate patron), with the consent of the patron paramount, the immediate patron, and the ordinary ; 4 an unlimited power of alienating the glebe lands, and, a fortiori, an unlimited power of opening new mines and quarries ; it is, since the passing of the Restraining Acts, 5 doubtful whether, even with the consent of his patron or patrons, and ordinary, he can open new mines or quarries. 6 If it be the law, that a parson may, with the consent of the patron or patrons and the ordinary, open and work new mines or quarries, or authorise another person so to do, such consent must be shown to have been obtained, and will not easily be presumed. 7 If it be the law, that a parson may not, even with the consent of the patron or patrons and the ordinary, open and work new mines or quarries, the difficulty cannot, it is submitted, be overcome by obtaining the sanction of the Court; the Court not having, it is submitted, any authority to give such sanction. 8 The patron may maintain an action to recover minerals im- properly worked by a parson or vicar. 9 And the better opinion Barn. 399 ; nom. Strachey v. Francis, 2 Atk. 217 ; Acland v. At well, 2 Rolle's Abr. 813 ; 3 Swanst. 499 n. ; Sowerby v. Fryer, 8 Eq. 417. The dictum to the contrary in Rutland's Case, 1 Lev. 107 ; 1 Sid. 152, 1 Keb. 557 ; proceeding on the alleged ground, that, if a parson were restrained from digging new mines in his glebe, no mines in any glebe could be opened ; is unsustainable. 1 See Marlborough v. St. John, 5 De G. & Sm. 178. See ante, p. 51. 2 Holden v. Weekes, 1 J. & H. 283, 284, 285. 3 lb., 284. See also the timber case of Marlborough v. St. John, it. s. 179. 4 Doe v. Collinge, 7 C. B. 939. 5 Ante, p. 78. 6 See Holden v. Weekes, u. s. : see Mulliner, v. Mid. R. C, 11 Ch. D. 623. "' See Bartlett v. Phillips, 4 De G. & J. 414. 8 The power to sanction the cutting of particular clumps of timber in a due course of management (Marlborough v. St. John, «. *. 179) does not, it is sub- mitted, furnish any analogy upon this point. No doubt, in Holden v. Weekes (w. s. 284), V. C. Wood seems to have thought, that the principle applicable to timber might apply to mines : but he abstained from applying it, and directed an inquiry to ascertain what steps were necessary to obtain the proper sanction : see the decree, 287. See and consider Be Smith, 10 Ch. 85, ante, p. 43, n. l , p. 44. Powers to sell and lease may be exercised under various statutory provisions : see post, Chap. VII., Part A., Sect. 7, c. ; Chap. VIII., Sect. 5, d. (0). 9 Trover formerly lay : see the tim- ber case of Sowerby v. Fryer, 8 Eq. 423. SECT. 3.] OR POSSESSION — CHURCH LANDS. 81 seems to be, that he may, if the severed chattels have been sold, have an action for an account, 1 or for damages. The minerals, if unsold, will be directed to be sold, and the proceeds invested for the benefit of the advowson. 2 And, assuming the correctness of the above opinion, if the minerals have been already sold, the amount, for which the wrongdoer is bound in respect of them to account, 3 will be similarly invested. 4 It is presumed, however, that the wrongdoer would not be allowed to receive the income. 5 An action for dilapidations will not Dilapidations. lie against the estate of a parson or vicar at the suit of his successor, in respect of gravel dug, or minerals worked in the glebe. 6 For (1) the successor is not injured : as he could not have worked, even if the previous working had not taken place. And (2) an action for dilapidations lies not merely for volun- tary but for permissive waste ; and each incumbent is liable for the waste of his predecessor. If, therefore, such an action lay in respect of minerals, the estate of an incumbent would be liable, not merely in respect of minerals raised in his time, without his permission or knowledge, from mines extending, without his knowledge, under the glebe ; but it would also be liable in respect of minerals so raised by any number of his prede- cessors. And in such an action the Statute of Limitations would afford imperfect protection ; the waste being permissive and continuing. 7 If a parson or vicar improperly works, the Injunction or . . . ., . . . prohibition. patron may have an injunction or a prohibition to restrain the future working. 8 The patron is, in general, the only proper 1 Sowerby v. Fryer, 8 Eq. 423, per Holden v. Weekes, w. s., 286, 287. See James, V. C. See also Bartlett v. however, Ross v. Adcock, it. .?. Phillips, 4 De G. & J. 414. The law 5 For the form of the declaration was laid down the other way by Lord which in such a case will be made, see Hardwicke in Knight v. Mosely, Amb. Holden v. Weekes, 11. s., 287. 176; and was acquiesced in by Wood, 6 Eossv. Adcock, %.s., 655, 669 cisej'.; V. C. in Holden v. Weekes, 1 J. & H. overruling the law supposed to have 278, 286 : but, as James, V. C. observed been laid down in Huntley v. Russell, in Sowerby v. Fryer, u. s., it is not easy 13 Q. B. 572. to understand upon what grounds. Cf. 1 Ross v. Adcock, w. . *. » ; num. directed, see Holden v. Weekes, u. s. 287. Slrachy v. Francis, 2 Atk. 21 7 ; Hoskins - See Sowerby v. Fryer, v.. ■*. v. Feathers; on, 2 B. C. C. 552 ; Hidden 3 See post, Chap. XXII. , Sect. 2, e. v. Weekes, 1 J. & If. 278, 285 : Ross v. 4 See Bartlett v. Phillips, v. . L. .T. Ch. 121 556. s. c. r> De G. M. & G. 728. 3 Jb. G 2 84 Just allow- ances. WORKINGS FOUNDED ON PROPERTY OR [CHAP. IV. proved against him. 1 And the mere fact of a mortgagee in possession not making a large expenditure upon the works will not be considered an act of mismanagement on his part; no matter how probable it may be that the works may be benefited by a large expenditure. 3 In taking the accounts under a decree in a redemption action against a mortgagee in possession of mines or quarries, the mortgagee is, under the head of "just allow- ances," entitled to be recouped all moneys which he has ex- pended upon necessary repairs. But to entitle him in respect of permanent improvements, or substantial repairs, he must make out a case for them at the trial. 3 Mortgagee not bound to work new mines or quarries. Nor entitled to do so un- less security insufficient. Remedies for wrongful workings. c. Mortgagee — Neiv Mines or Quarries. * A mortgagee, who is in possession of land containing unopened mines or quarries, is not bound to open and work them. He is not bound to engage in speculations for the benefit of the mortgagor. 5 On the other hand, a mortgagee, who is in possession of land containing unopened mines or quarries, and whose security is not insufficient, is not entitled, prima facie, to open and work them. 6 The reason is that a mortgagee, who opens and works new mines or quarries, destroys a part of the inheritance, which the mortgagor, when he comes to redeem, should be entitled to get back." And a mortgagee, whose security is not insufficient, and who autho- rizes strangers to work, is, although not in possession himself, responsible for their acts. 8 If such a mortgagee does open and work new mines or quarries, the mortgagor may, of course, charge him with his receipts. 9 And he will be disallowed the costs both of working and winning, and of bringing to bank ; l0 1 Rowe v. Wood, 2 J. & W. 555, 556, 557, 558. 2 lb. 555, 556 : see ante, p. 83. 3 Tipton Green Colliery Co. v. Tip- ton Moat Colliery Co., 7 Ch. D. 192. 4 As to new mines or quarries, see ante, pp. 22 et seq. 5 See Hughes v. Williams, 12 Yes. 493, 496, per Lord Erskine. fi Thorneycroft v. Crockett, 16 Sim. 445; Hood v. Easter, 2 Giff. 692 ; 2 Jur. N. S. 917; Millett v. Davey, 31 Beav. 170, 175. 7 Sec Thorneycroft v. Crockett. v. s. ; Hood v. East on, 2 Giff. 697 ; Millett r. Davey. ?/. s., 175, 176. 8 Hood r. Easton, 2 Giff. 692. 9 Hughes v. Williams, v.s. ; Thorney- croft v. Crockett, ?/..ost, Chap. XX., a. 6 See also Grimstead v. Marlow, 4 T. R. 717 ; Mellor v. Spateman, 1 Wm. Saund. 620 ; Austin v. Amhurst, 7 Ch. D. 691, 692 ; Chilton v. London, ib. 740 ; Rivers v. Adams, 3 Exch. D. 364 ; Saltash v. Goodman, 5 C. P. D. 431, 446, 454 ; Goodman v. Saltash, 7 App. Cas. 641, 648, 654 to 662, 669. These cases, and the cases referred to in the preceding notes, decide what was left undecided in Johnson v. Wyard, 2 Lutw. 1344 ; Clowes v. Beck, 13 Beav. 347 ; Padwick v. Knight. 7 Exch. 861. The dictum to the opposite effect in Bond's Case, March 16, is not law ; and, in so far as Stile v. Butts, Cro. Eliz. 434, and Oxenden v. Palmer, 2 B. & Ad. 236, are inconsistent with the propositions in the text, they cannot be supported : see Constable v. Nicholson. 14 C. B. N. S. 239, 240, 241. Cf. Abbot v. Weekly, 1 Lev. 176 ; Fitch v. Raw- ling, 2 H. Bl. 393 ; Tyson v. Smith, 6 A. & E. 745 ; 9 ib. 406 ; Elwood v. Bullock, 6 Q. B. 383. The customs there held valid were not rights of profit aprendre. 1 See A.-G. v. Mathias, v. s., 590 ; Salt- ash v. Goodman, 5 C. P. D. 450, 451. 8 For the right of inclosing commons scc^<#, Chap. VII., Part B., Sect. 2. 9 See Gateward's Case, 6 Rep. 6(». 1> ; nom. Smith v. Gatewood, Cro. Jac. 152 ; Duberley v. Page, 2. T. R. 391 ; Shakespear v. Peppin, 6 ib. 741 ; R. v. Churchhill, 4 B. k. C. 755 ; Rogers v. Brenton, 10 Q. B. 60 ; A.-G. v. Hanmer, 27 L. J. Ch. 841 ; Portland v. Hill, 2 Eq. 765, 7S0 ; Warrick r. Queen"s Coll. Oxford, 6 Ch. 724 : see also Mellor r. Spateman, 1 Wm. Saund. 620. 92 WORKINGS FOUNDED ON [chap. V. But right sub- ject to restric tion. solo : nor can it in the lord's name ; for he cannot claim common in his own land. As, therefore, it is impossible that it can claim by prescription, it is allowed to do so by custom. 1 However, an ancient common of turbary, or the right of taking peat or turf from the waste land of another for fuel in the commoner's house, 2 can only, where claimed by custom, be claimed in respect of an ancient house or building, or a house standing in place of it ; 3 and for the purpose of being spent or consumed thereon. 4 And so, in other cases of rights of profit a prendre, the right cannot be claimed without restriction or limitation. Thus, alleged rights by custom in the copyholders of a manor having gardens parcels of their customary tenements to take turf from the common of the manor, at all times of the year, as often and in such quantity as occasion required, for the purpose of making and repairing grass plots' in such gardens for the improvement thereof, and for the purpose of making and repairing the banks and mounds in, of, and for the hedges and fences of such customary tenements, have been held bad ; as too uncertain and indefinite. 5 And, independently of ancient common of turbary, an alleged right by custom in the copy- holders of a manor must apparently, to be valid, be confined to necessary consumption and repairs upon the ancient copyholds. 6 One, who improperly exercises a right of profit a 'prendre, com- mits waste, and may be restrained by injunction. 7 Whether or not it be possible, not only for a copyhold tenant, but for the mere occupant of a copyhold tenement, to claim by custom a right of profit a prendre in the waste of the manor, 8 it is at all events certain that an ancient common of turbary cannot Irish tenant, be claimed by a mere occupant. 9 Where the tenant of an Irish holding exercises as such a right of cutting and taking turf over uninclosed land in common with other commoners, if the holding Occupant. 1 See Rogers v. Brentou, 10 Q. B. 61, 62, per Lord Denman, 2 See Elton on Commons, 95. :! See Clarkson v. Woodhouse, 5 T. R. 414 n., 415 n.; Warrick v. Queen's Coll. Oxford, 6 Ch. 730. 4 Ely v. Warren. 2 Atk. 100. 5 See Wilson v. Willes. 7 East, 121 : eee also Rogers v. Brenton, 10 Q. B. 26, 57, 60 ; and cf. Clayton v. Corby, 5 ib. 415. 6 See Sci'iv. on Cop. 316 : see also Peppin v. Shakespear,6 T. R. 748 ; A.. G. v. Hanmer. 27 L. J. Ch. 841. 7 See Ely v. 'W arren, u. s. s See ib., 189, 190. 3 Ib„ 190. SECT. 1.] CUSTOM PROFITS A PRENDRE. 93 becomes subject to a statutory term under the Irish Act, 44 & 45 Vict. c. 49, the landlord or any commoner may obtain from the Civil Bill Court of the County an injunction to restrain the tenant from exercising his right otherwise than according to the ordinary usage which has prevailed amongst the com- moners. 1 (y) Copyholders and Wastes — Evidence of Custom. Evidence as to neighbouring manors is not in general admis- Evidence of sible to show the custom in the particular manor in question ; every manor being governed by its own customs. 2 But in the case of manors having a great physical similitude, such as those in the fen districts, a copyholder of the manor in question, claiming the right to dig the soil of the common for turf, may adduce evidence as to the existence of a similar right in the neighbouring manors. 3 So in the mining districts of Cornwall and Derbyshire, where the local customs prevail, evidence of what has taken place in one manor may, it seems, be admitted for the purpose of explaining or showing the custom in another. 4 General evidence of reputation is probably admissible in support of a customary right of digging stones on the lord's waste. 5 A custom pleaded for the tenant of a particular tenement was not allowed to be proved by evidence of a general custom for all the copyholders to the same effect. 6 (8) Public Good. A custom for freemen and proprietors of ships within a Public good. borough to dig gravel on the shore for ballast has also been held to be good ; as being for the maintenance of navigation. 7 1 Ss. 17, 37. 7 See Lynn Regis v. Taylor, 3 Lev. 2 Ely v. Warren, 2 Atk. 189. 160 : see however, Padwick v. Knight ; 3 lb. and Constables. Nicholson, ante, p. 91 ; 4 lb. As to these local customs, see where the custom set up might equally post, Chapters XVIII. , XXI. well have been considered a custom 3 See Morewood v. Wood, 14 East, pro bono publico, and was nevertheless 320 n. held bad. 6 Wilson v. Page. 4 Esp. 71. 94 WORKINGS FOUNDED ON [CHAP. V. b. Prescription. (a) Generally — Freeholders and Wastes 1 — Evidence. Right of profit A right of profit a prendre in alieno solo may, generally, 2 be gen^r?daim- claimed by prescription. 3 It has, accordingly, been considered cable by pre- t i ia t a right to take turf and stones, 4 or coal, 5 in the land of scription. another may be properly claimed by prescription. And the freeholders of a manor may properly claim by prescription a right to cut turf or dig gravel out of the lord's waste. 6 And where the freeholders have, in fact, exercised such a right for many years, the Court will try to find a legal origin therefor. 7 And where such a right has for many years been exercised by the freeholders and also by the inhabitants, the Court will presume, that the inhabitants claimed through the freeholders. 8 It is said, that the reason why the right in question may in general be claimed by prescription, but not by custom, is that a pre- scriptive right, which is personal, may be released ; but that a custom, which is local, cannot be released. 57 In the case of the freeholders of a manor, it seems, that building on the freehold would be deemed an abandonment of the ri^ht. 10 The infrinsre- ment of the right may be restrained by injunction. 11 And, if the right belongs to the freeholders of a manor, one may sue on 1 For the right of inclosing com- buildings ami walls. mons, see post, Chap. VII., Part E„ B See Warrick v. Queen's Coll. Ox- Sect. 2. ford, 6 Ch. 724 ; Letts v. Thompson, 2 For the exception, see infra (0). ib. 739. 3 See Gateward's Case, G Rep. 60 b, '< Warrick v. Queen's Coll. Oxford, nom. Smith -y.Gatewood, Cro.Jac. L12; 10 Eq. 105; G Ch. 716,722; Betts v. Hayward v. Cunnington, 1 Lev. 231 ; Thompson, ?/. s., 736. Mellor v. Spateman, 1 Wm. Sannd. s jj_ cf. Saltash v. Goodman, 5 G20 ; Grimstead v. Marlow, 4 T. R. 717 ; C. P. D. 431. Blewett v. Tregonning, 3 A. & E. 554 ; 9 See Mellor v. Spateman, 1 Wm. Clayton v. Corby. 5 Q. B. 415 ; A.-G. Saund. 620 ; Grimstead v. Marlow. 4 v. Mathias, 4 Iv. & .1. 579 : Constable v. T. R. 719 ; A.-G. v. Mathias, 4 K. & J. Nicholson, 14 C. B. N. S. 230 ; De la 591 ; Goodman v. Saltash, 7 App. Cas. Warr v. Miles, 17 Ch. D. 535. 658. As to custom, see ante, p. 90. 1 See Incledon v. Eurges, Garth. 65. 10 Warrick v. Queen's Coll. Oxford, ■ 5 See Wilkinson v. Proud, 11 M. & G Ch. 730. W. 33. See also A.-G. v. Hanmer, 27 " For the form of the injunction, L. J. Ch. 841, where it was said that see Warrick v. Queen's Coll., Oxford, freeholders might acquire by prescrip- Set. 218 ; Letts v. Thompson. Set. 21 7 tion a right to get stones and sand 218. from the Eoreshore to repair their • SECT. 1.] PRESCRIPTION — PROFITS A PRENDRE. 95 behalf of himself and all the others. 1 The Comity Court has jurisdiction to grant an injunction, subject to an appeal by any person aggrieved to the High Court. 3 However, an ancient common of turbary, where claimed by But right suit- prescription, as where claimed by custom, 3 must be claimed in j^.* restric " respect of an ancient dwelling-house, or a house standing in place of it; 4 and for the purpose of being spent or consumed thereon. 5 And so, in other cases of rights of profits a prendre, where claimed by prescription, the claim must not be without limitation or restriction. Where, accordingly, the defendant, in an action of trespass, pleaded, that he was the owner of a brick kiln ; and that he and all the occupiers thereof had for 30 years enjoyed as of right and without interruption a right to dig and take away from the plaintiff's close so much clay as was at any time required for making bricks at the brick kiln in any year and at all times of the year ; it was held, that the right claimed amounted to an indefinite claim to take all the clay out of the close, and was, therefore, bad. 6 And, where the Forester of the Crown in a particular place in the Forest of Dean claimed a right by prescription to grant gales of the Crown quarries therein without accounting to the Crown for the proceeds, it was held, that the claim, being in effect a claim to carry away the soil of another without stint or limit, could not be sustained. 7 And it is immaterial, however strong the evidence of the user may be. 8 The right must also in every case be claimed either as being annexed to land ; or as being enjoyed in ©toss by a body capable of continuing, such as a corporation ; or as being so enjoyed by a person claiming by descent. 9 It has, 1 Warrick v. Queen's Coll. Oxford, 6 Clayton v. Corby, 5 Q. B. 415 ; lOEq. 105; 6 Ch. 716; Betts v. Thomp- cf. Goodman v. Saltash, 7 A pp. Cas. son, 6 Ch. 732. 646. 2 39 & 40 Vict. c. 56, s. 30. A claim ~> A.-G. v. Mathias, 4 K. k J. 579. to a part of the soil of another cannot A claim by custom also failed : see be sustained by prescription : see • ante, p. 91. See also A.-G. v. Gaunt- Wilkinson v. Proud, 11 M. & W. 33. lett, 3 Y. & J. 93 ; Bailey v. Stevens 3 Ante, p. 92. 12 C. B. N. S. 91 : Saltash v. Good- 4 Warrick v. Queen's Coll. Oxford, man, 5 C. P. D. 431, 448, 449. 6 Ch. 730. s A.-G. v. Mathias. u. s. ; Johnson v. 5 Valentine v. Penny, Noy, 145 ; Barnes. L. R. 7 C. P. 604 ; Saltash v. Hayward v. Cunnington, 2 Keble, Goodman. ■>/. x„ 451. 290. :U1 ; Williams on Commons, 192. 9 See A.-G. v. Gauntlett 3 Y. & .1, 9G WORKINGS FOUNDED ON [dlAP. V. for instance, been held, that a right for the inhabitants of a township, as such, to take stones from the land of another person for the purpose of repairing the highway, cannot be claimed by prescription ; inhabitants, as such, not being a body capable of taking a grant. 1 And a charter from the Crown, 2 or an Act of Parliament, 3 incorporating the inhabitants, will not easily be presumed. 4 And occupiers cannot claim in respect of the estate of another against that other. 5 It is, however, possible to show by prescription a valid right of cutting turf more extensive than common of turbary ; as, for instance, a right of cutting turf in respect of new or additional buildings. 6 Evidence of An original grant of the right to dig stones out of a common risht< does not necessarily extend to the whole of the common. It may have been either a general grant to dig out of the whole of the common, or a grant to dig except as to the particular part in question. An assertion, therefore, of a prescriptive right to dig stones out of a particular part of a common must be sup- ported by evidence as to user in respect of that part. 7 General evidence of reputation is probably not admissible in support of a prescriptive right of digging stones on the lord's waste. 8 Commoner A commoner entitled to dig and take clay has no right to towhat be* take that which another has dug, although he be no commoner : di s s - for a commoner is only entitled to what he himself digs. 9 93 ; Bailey v. Stevens, 12 C. B. N. S. 2 Chilton v. London, U.S., 740 et seg.; 91; Constable v. Nicholson, 14 ib., Rivers v. Adams, U.S., 365 et seg.; Salt- 230, 231 ; Austin v. Amhurst, 7 Ch. D. ash v. Goodman, 5 C. P. D. 445 et seg. ; G92 ; Goodman v. Saltash, 7 App. Cas. Goodman v. Saltash, u. s., 637, 648. 641 6C4. 3 Chilton v. London, u. s. i Constable v. Nicholson,?/..?.. 230, 4 Cf. Warrick v. Queen's Coll. Ox- 234 : overruling the suggestion to the ford, u. s., 716, 722 : ante, p. 94. contrary in Padwick r. Knight, 7 Exch. 5 Austin v. Amhurst, 7i. s. ; Goodman 861. See also Smith v. Gatewood, V. Saltash. u. .«.. 641, 642. Cro. Jac. 152 ; Lockwood v. Wood, G Warrick v. Queen's Coll. Oxford, 6 Q. B. 64 ; Warrick v. Queen's Coll. u. ■«.. 721. 730, 731. Oxford, 6 Ch. 724 ; Chilton v. London, 7 Maxwell v. Martin, 6 Bing. 522. 7 Ch. D. 728, 740 ; Rivers v. Adams, s Morewood v. Wood, 14 East, 3 Exch. D. 363, 364 ; Saltash v. Good- 328 n. man, 5 C. P. D. 431. 9 Stile v. Butts, Cro. Eliz. 434. SECT 1.] PRESCRIPTION — PROFITS A PRENDRE. 97 (/3) Copyholders and Wastes. To the rule, that a right of profit a prendre may be claimed Exception in , r ill case °f c °py _ by prescription, an exception exists m the case ot a copyholder, holder and Such a person cannot claim by prescription a right of profit a waste - prendre in the waste land of a manor. 1 The exception is, how- ever, confined to the waste land of the particular manor of which the copyholder holds. The copyholders of one manor may claim a right of profit a prendre in the wastes of another manor by prescribing in the name of their lord. 3 c. Lost Grant — Prescription Act. If a right of profit d prendre in alieno solo cannot be sus- Lost grant, tained on the ground either of custom or of prescription, it cannot be sustained on the ground of a lost grant. For, if a grant of an unreasonable claim before the time of legal memory cannot be presumed, a fortiori such a grant cannot be presumed since. 3 And if a right of profit a prendre in alieno solo cannot Prescription be sustained on the ground of custom or prescription, it cannot be sustained under the Prescription Act by an user, however long ; 4 that Act merely giving validity to claims, "which may be lawfully made at the common law by custom, prescription, or o-rant." 5 1 See Gateward's Case, 6 Kep. 60 b. nom. Smith v. Gatewood, Cro. Jac 152 ; Mellor v. Spateman, 1 Wms Saund. 620 ; R. v. Churchhill, 4 B. & C 755 ; Rogers v. Brenton, 10 Q. B. 60 Portland v. Hill, 2 Eq. 765. 2 See Rogers v. Brenton. 10 Q. B. 61. 3 See A.-G. v. Mathias, 4 K. & J. 579. 4 See Clayton v. Corby, 5 Q. B. 415 ; A.-G.v. Mathias, u.s. ; Baileys. Stevens, 12 C. B. N. S. 91, 113. * 2 & 3 Will. 4, c. 71, s. 1.— "No claim, which may be lawfully made at the common law by custom, pre- scription, or grant, to any right of common or other profit or benefit to be taken, kc shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of 30 years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of 30 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated, Salisbury v. Gladstone, u. .«. ; Ling- K-ood r. Gyde, L. P. 2 C. P. 73. 77. 6 Portland v. Hill, 2 Eq. 765. 7 See Salisbury v. Gladstone, 6 H. & N. 123 ; 9 H. L. C. 692 : see also Hanmer v. Chance, 4 De G. J. & S. 626. 8 Salisbury v. Gladstone, 6 H. & N. 129. per Wightman, J. ; 9 H. L. C. 708. 9 Which would be bad: see ante, p. 92. 10 See Salisbury v. Gladstone, 6 H. & X. 129 ; 9 H. L. C. 702. See the observations of Lord Cranworth in Salisbury v. Gladstone, 9 H. L. C. 701 ; and of Lord Hatherley in War- rick v. Queens Coll. Oxford, 6 Ch. SECT. 2.] PRESCRIPTIVE WORKINGS. 99 The 1st section of the Prescription Act, providing that claims Right not by custom shall not, after 30 years' enjoyment, be defeated by prescription merely showing their actual commencement, does not affect a Act - claim by a copyholder to dig minerals out of his copyhold tene- ment ; the section applying exclusively to cases where a person claims a profit a prendre in alieno solo. 1 And the 6th section, providing that no presumption shall be made in favour of any claim upon proof of the enjoyment of the right claimed for any period less than that prescribed, merely means that no such presumption shall be made from the bare fact of enjoyment for less than the prescribed period ; and does not take away from the fact of such enjoyment its natural weight as evidence ; so as to preclude a jury from taking it, along with other circumstances, into consideration as evidence of a grant. 2 Accordingly, where copyholders claimed a customary right to dig and carry away vitreous sand from their tenements, and the evidence was such that an inference of the existence of the custom might be readily drawn therefrom, it was held that it was not necessary to prove that the right had been enjoyed for 30 years. 3 (/3) Copyholders and their Tenements — Evidence of Custom. In every case, however, the onus of establishing the custom Evidence of . . • c custom. relied on lies upon the tenant ; 4 and it is often a question ot difficulty to determine whether the evidence offered in support of an alleged custom is sufficient. The law has laid down no rule as to the extent of the evidence which is required to establish a custom, or from which the inference of the fact of a custom may be drawn. It is the province of a jury to draw these conclusions of fact. 5 In a suit by the lord of a manor to restrain certain copyholders from digging and taking away white vitreous sand from their tenements, evidence of a custom to dig vitreous sand for twenty-seven years, and of a custom to dig sand generally for a much longer period, was adduced. The acts of the 1 See Hanmer v. Chance, 4 De G. ante, p. 97, n. 5 . J. & S. G26, 631. 4 Portland v. Hill, 2 Eq. 765. -Jb. s Hanmer v. Chance, 4 De G. J. & 3 lb. This decision reversed S.C. 11 S. 626, 635. L.T.N. S. 667. S.l of the Act is cited ii 2 1UU OTHER CUSTOMARY AND [CHAP. V copyholders had heen open and notorious, and the lord had never attempted to exercise any right of forfeiture. It was held, that there was sufficient evidence of a custom to dig vitreous sand to justify the copyholders; although the manor was one of laro-e extent, and no evidence was adduced that the custom extended over the whole of it. 1 Admissibility An alleged right in a copyholder according to the custom of to •uij'.'i.'.'ing 13 a manor to dig and carry away the coals therein is not proved """" by producing evidence of a like custom in an adjoining manor although in the same parish and leet. 2 And such right will not he proved, although there be evidence showing, that the latter manor was a subinfeudation of the former, unless it be clearly shown, that the separation took place after the time of legal memory : for otherwise the two manors might have had different immemorial customs. 3 But where no question arises with respect to the right to minerals as between a lord and the tenant, but the only question is with respect to the rights of copyhold miners as between each other, a different rule prevails; the proposed evidence relating, not to the customs of the manor, but to the nature of the tenure of the tenants. 4 Where, therefore, in each of several manors belonging to the same lord and part of the same district, it appeared that there was a class of tenants answering the same description, and to whom their tenements had been granted by similar words, evidence of what rights had been enjoyed by those tenants inter se in one manor was received to show what were their rights in another. 5 And in the mining districts of Cornwall and Derbyshire, where the local customs prevail, 6 evidence of what has taken place in one manor may, it seems, be admitted for the purpose of explaining or showing the custom in another ; even where the question is with respect to the right to minerals as between a lord and the tenant. 7 Admissibility Evidence that a copyholder may do one sort of waste, such as ul evidence as ^ 1 Hanmer v. Chance, 4 De G. J. & S. * See Anglesey v. Hatherton, 10 M. 630, 635 : cf. Portland v. Hill, 2 Eq. & W. 237, 238. 765 - 5 Rowe v. Brenton, 8 B. & C. 737, 2 Anglesey v. Hatherton, 10 M. & 3 M. & R. 133. w - 218 - 6 See post, Chapters XVIII., XXI. 3 lb.: cf. Buccleuch v. Wakefield, ^ Ely v. Warren, 2 Atk. 189; Angle- L. R. 4 H. L. 407. sey v , Hatherton. 10 M, k W. 237. SECT. 2.] PRESCRIPTIVE WORKINGS. 101 cutting timber, is no evidence that he may do another sort of to other kind waste, such as digging mines. 1 But a custom empowering or other copyholders to dispose of one sort of mineral may, in some mmeral - cases, be evidence of their right to dispose of a different sort of mineral within the same manor. 2 A deed more than two hundred years old, made between the Anglesey v. lord of a manor of the one part and a number of the copyholders of the other part, which stated in detail various alleged customs, but made no mention of any custom for the copyholders to take minerals ; and which was confirmed by a decree in Chancery ; was held admissible in evidence against a copyholder deriving title under one of the parties to it, to negative the existence of a custom of the manor for the copyholders to take the minerals under their respective copyholds. 3 And it would probably have been evidence for the same purpose, even against a copyholder not deriving title under any of the parties to it. 4 And the Portland a. existence of a customary compiled within the period of legal memory is conclusive evidence against the existence of a custom not mentioned therein. Thus, where the customary of a manor, compiled within the period of legal memory, recognised a right in the tenants to dig coal " propriis usis ;" and it appeared from subsequent documents, that the privilege of digging coal for their own consumption had been enjoyed by the tenants under the waste ; but there was no evidence of a similar restricted enjoy- ment by the tenants under their customary inclosures ; and there was evidence of the tenants having during a long period dug coal in the customary inclosures for sale ; it was held, that the custom was restricted to digging in the waste for coal for the tenants' own consumption, and that the tenants had no right of digging coal under their customary inclosures. 1 Winchester v. Knight, 1 P. Wins. 363, 364 : see Parrott v. Palmer, v. s. 406 ; Parrott v. Palmer, 3 M. & K. 3 Anglesey v. Hatherton, 10 M. & 637. W. 218. 2 Winchester v. Knight, u. s. : but see 4 lb. Rowe v. Brenton, Cone. 329, 3 M. & Ry. 5 Portland v. Hill, 2 Eq. 765. 102 OTHER CUSTOMARY AXD [chap. V. (y) Lords and Copyholds. Lord may, by A special custom may be shown to exist in a manor, author- new n'in"s '[« ising the lord to enter upon copyhold lands and work new copyhold. mineg thereunder. 1 Doubtful whether lord can by cus- tom work in waste without leaving suffi- cient common. Bateson v. Green. Badger v. Ford. (8) Lords and Wastes. 2 "Whether a custom justifying the lord of a manor in remov- ing, or authorising another to remove, the soil of the waste, without leaving sufficient common for his commoners, can under any circumstances be considered valid, is open to doubt. In Bateson v. Green 3 a custom, by which a lord was entitled to dig clay pits in a common, or empower other persons to do so, without leaving herbage for the commoners, was held good : and FolJcard v. Hemmett, 4, and perhaps also Clarkson v. Wood- Jiouse, 5 are authorities to the same effect. And in Place v. Jackson 6 it was held, that the lord of a manor was justified by custom in taking stones and gravel out of some commonable hills within the manor without stint. In Badger v. Ford, 7 on the other hand, it was said, that a custom, which presumed the reservation of a power by a lord at the time of the original grant of the right of common, the effect of which would be to enable the lord to annihilate the right of common altogether, was invalid : and Hilton v. Granville 8 contains observations of a similar kind. And in Wilson v. Willes, 9 it was decided, that one copyholder of a manor could not assert a customary right, derivable from his lord, to take turf in an unlimited quantity from the common of the manor, to the prejudice of the rights 1 Bourne v. Taylor, 10 East, 189 ; Hilton v. Granville. 1 Cr. & Ph. 293, 294 ; Aspden v. Seddon, 1 Exch. D. 510, See Eardley v. Granville, 3 Ch. D. 832 ; and ef. Whitechurch v. Hol- worthy, 4 M. & S. 340. The lord has no such right independently of cus- tom : see ante, p. 74. 2 The lord of a manor may, inde- pendently of custom, open mines or quarries in the manorial wastes, pro- vided that he do not thereby preju- dice the rights of the commoners : see ante, p. 76. :i 5 T. It. 111. - 4 lb.. 417 n. (a). 5 3Dougl. 189; 5 T. B. 412n.(a). For a statement of the custom in this case, see post, Chap. VII., Bart B., Sect. 2. a. 6 4 IV, vd. & By. 818. '' W B. & Al. 153, 155. 8 5 Q. B. 701 : sec pp. 729, 730. 7 East. 128. SECT. 2.] PRESCRIPTIVE WORKINGS. 10o of the other copyholders. And in Arlett v. Ellis} it was said, after an elaborate criticism of Bateson v. Green, GlarJcson v. Woodhouse, and Folhard v. Hemmett, that a custom in a manor, authorising a lord to make, without limit, grants of a waste, in which copyholders had a right of common, would be bad. 2 It will be observed that, in all probability, no assistance can, in the consideration of this question, be derived from con- sidering the law relative to the claim by custom of a copyholder to dig clay without limit out of his copyhold tenement. 3 " It may be that the lord, being the grantor, cannot establish, as a reservation out of his grant, that which, in the absence of pro- duction of the grant itself, is plainly unreasonable." 4 Bateson v. Green may perhaps be reconciled with sound principles by treating the custom there set up as one which was only exercis- able at certain fixed periods of the year. The custom set up in Clarkson v. Woodhouse may possibly be considered good, either as really being for the benefit of the commoners ; 5 or as being a custom, which was confined to a particular portion of the waste land in question. And that set up in Folhard v. Hemmett may possibly be considered good, on the ground of its having been sanctioned b}' the homage of the manor. 6 Unless, how- ever, these are sound distinctions, these decisions, and also the decision in Place v. Jackson, can hardly, it is conceived, be con- sidered good law. 7 It does not follow, that a custom, justifying the lord of a He perhaps manor in removing the soil of the waste, without leaving suffi- bound to cient common, would be bad, if it were part of the custom, that ^^j™"" the lord should make compensation for all damage. 8 In any event, whether a custom by a lord to dig without Wanton work- ing. 1 7 B. & C. 346. 7 See also Wakefield v. Buccleuch, " Per Bay ley, Holroyd & Little- 4 Eq. 639-643, per Malins, V.C. It dale, J J. : see also Hall v. Byron, should, however, be observed, that 4 Ch. D. 667, 678, 679. Bateson v. Green was cited by Lord 3 Such a claim may be supported, Chelmsford, with apparent approval, see ante, p. 98. in Salisbury v. Gladstone, 9 H. L. C. 4 Hall v. Byron, 4 Ch. D. 67V,p:'r 70!). See also Hilton v. Granville, Hall, V.C. 1 Cr. & Ph. 293, 294,^?- Lord Cot- 5 See a statement of the custom, tenham. post, Chap. VII., Part B.. Sect. 2, a. 8 See and consider Buccleuch v. 6 See the observations on these cases Wakefield. L. II. 4 H. L. 396 : but see in Arlctt v. EllLs, 7 B ^ C. 365 to 308. pp. 406, 107. per Bayley. J. 104 OTHER CUSTOMARY AND PRESCRIPTIVE [CHAP. V. stint be valid or not, the digging must be bond fide. The lord may be restrained if he digs wantonly. 1 Concurrent customs. (e) Concurrent Customs. There may, in respect of mines, be two concurrent customs in a manor, one in favour of the lord, and the other in favour of the copyholders. Thus, in Curtis v. Daniel, 2 it was decided, that the lord of a manor in Cornwall might, by acts of ownership, establish his right to all tin mines within the manor, as well under the freehold tenements as under the customary tenements and the wastes ; and, that consistently therewith, the tenants of certain tenements in a vill within the manor, some of them freehold and some customary, might, by acts of ownership for more than 20 years, establish their right to copper mines, as well under the waste and customary lands, as under the freehold lands within the vill. Lord may by prescription work in copyhold. b. Prescription. The lord of a manor may be entitled by prescription to enter upon the copyhold tenements, and dig for and get the minerals ; making compensation to the copyholders for all damage which he causes. 3 Highw. (Turnp.) Act. Sect. 3.— WORKINGS— MATERIALS FOR ROADS. 4 The Highways (Turnpike) Act, 3 Geo. 4, c. 12C, empowers surveyors to the trustees or commissioners of any turnpike road to search for, dig, and carry away any materials for making or repairing turnpike roads : (1), out of any common, river, or brook (not being within 50 yards of any bridge, dam, weir, or jetty), or out of any waste, or common, in any parish, hamlet, or place in which any part of such road may lie, or in any adjoin- 1 Place v. Jackson, 4 D. & Ry. 318. - 10 East. 273. 3 See Paddock v. Forester, 3 M. & G. 903. It was in the same case held, that a pica, stating the prescription, should state it with the qualification as to compensation. 4 These cannot usually be taken under custom : see ante, p. '.'1. SECT. 3 ] WORKINGS MATERIALS FOR ROADS. 105 ing parish, hamlet, or place ; and (2), out of the land of any per- sons where the same may be found in any such parish, hamlet, or place (not being a garden, yard, park, paddock, planted walk, or avenue to any house, or any piece of ground planted and set apart as a nursery for trees). And it empowers them (3) to deposit or carry materials on or through inclosed lands (not being a garden, &c), or open lands, on paying for all damage. In exercise of the first of these powers no payment need be made for the materials taken, but all damage to lands in private hands must be paid for. Before exercising the second in respect of inclosed lands, notice must be given to the owner to show cause against the same before two justices, who may decide in the matter; and, in exercising it, satisfaction must be made to the owner for the materials taken and for damage done. Differences as to payments or damage are determinable by two justices; 1 but no greater satisfaction can be awarded for the materials taken than their actual saleable value. 2 If surveyors make pits or holes in getting materials, they are bound under penalties to fill them up or fence them off, or otherwise secure them against accidents to persons or cattle. 3 In an action to restrain an injury arising from digging gravel pits for repairing turnpike roads, the trustees of the roads are necessary parties as well as the surveyor under whose directions the works are carried on. 4 The General Highways Act, 5 & 6 Will. 4, c. 50, empowers Gen. Highw. surveyors of parishes, in any waste or common, river, or brook, within their parishes, and, if necessary, within other parishes, wherein materials are likely to be found, to dig and carry away the same ; so that they do not divert or interrupt the course of the river or brook, or damage any building, highway, or ford, or get the same out of any river, or brook, within 150 feet from any bridge, dam, or weir : and also empowers them, upon obtaining the consent of the owners, or the licence of two justices, to gather stones : without making satisfaction for their value, but 1 Ss. 97, 98 : see 4 k 5 Vict. c. 51. 3 Geo. 4, c. 126, s. 101. Persons, who remove the materials 2 7 & 8 Geo. 4. c. 24, s. 15. before the surveyors have discon- 3 3 Geo. 4. c. 12 10 Geo. 4. c. 50. s. 106. 7 Q. B. D. 210. 8 39 & 40 Vict. c. 56, s. 20. 3 S - 52 - 9 5& 6 Will. 1. c. 50, s. 55. * S. 54. SECT. 3.] WOKKINGS — MATERIALS FOB ROADS. 107 dam, highway, occupation road, ford, mines, or tin works. 1 Trespass will not lie against a surveyor for entering lands, even although he has not tendered amends for the injury done ; the justices being the proper persons to settle the damages to be paid. 3 The authority granted by the justices does not continue indefinitely, but is limited to the necessities of the occasion in respect of which it is granted. 3 Under an Inclosure Act em- powering the appropriation of particular closes for the getting of stone and gravel and other "materials" for the repair of the highways and other roads to be set out by virtue of the Act, and for the use of the inhabitants of a particular parish, it was held, that the parishioners were not entitled to take stones for the purpose of burning them into lime for manure. 4 The Rail. CI. Cons. Act, 1845, 5 empowers a railway company, Rail. ci. without previous payment, to take temporary possession of land, Cons ' Act " not being more than 200 yards distant, and not being a garden, orchard, or plantation attached to a house, nor a park, planted walk, avenue or ground ornamentally planted, and not being nearer than a prescribed distance to the mansion-house of the owner of such land, for the purpose of taking earth or soil by side cuttings therefrom, or of obtaining materials therefrom for the construction or repair of the railway, or of the ac- commodation works connected therewith. But no stone or slate quarry, brick field, or other like place worked or used for getting materials for sale or disposal can be so taken or used. 6 And the company must give previous notice to the owner; and the owner may object that the land is essential to be retained ; and two justices may order that the land and materials be not taken, and that other lands be taken. 7 And the company must, before using the land, separate it by proper fences and gates from the adjoining lands ; and the materials must be taken in such manner as the owner's surveyor may direct; and the owner may compel the company to purchase the land in ques- 1 S. 57. under its provisions to dig holes in a 2 Peters v. Clarson, 7 M. & G. 548. public thoroughfare, in order to help 3 Manvers v. Bartholomew, 1 Q. B. themselves to water : see Edwards v. ~D. 5. Jolliffe, W. N. 1877, p. 120. 4 Bylatt v. Mar fleet, 14 M. & W. 5 8 & 9 Vict. c. 20. 233. The Pub. Health Act, 1875, 6 g. 32i does not authorise local bodies acting i g Si 33-37, ]QS USER FOUNDED ON CUSTOM AND [CHAP. V. tion. 1 And the company must make full compensation for the value of all clay, stone, gravel, and sand taken, and for all damage done, and may be required to give sureties for the payment thereof. 2 These provisions apparently apply to the case of a company, who are already in possession of a sur- face, and who are desirous of taking the underlying earth or soil. 3 Lord of manor Sect. 4.— USER. The lord of a manor may be entitled by custom to enter upon may Lave t | ie sur f ace of the copyholds or the customary freeholds, and to right of user, ' „ , . , , , by custom, or dig pits therein for the purpose of working the mines, 4 or to prescription. de p 0sifc thereon eart h or rubbish ; 5 or to use a portion of the subsoil for the carriage of the minerals ; 6 either unconditionally, or upon the terms of making compensation for all damage. 7 And the lord of a manor may be entitled, either by custom or by prescription, to dig pits upon the surface of the waste lands of the manor for the purpose of working the underlying mines or quarries, 8 with the incidental right to deposit earth or rubbish But custom as upon such surface. 9 However, a customary user of copyholds, in to copyholds, ort |er to be o-ood, must not be without limitation. If, therefore, subject to . , • l 1 • 1 J restriction. it involves a right which might be exercised, so as to render a copyhold tenement useless for the tenant, it will be bad. Thus, in an action brought by the customary tenant of a manor, the following custom was alleged. It was said, that whenever the lord of the manor, or his tenants of collieries within the manor, sank pits in the freeholds of the manor for the purpose of working the collieries, he and they had been accustomed to throw the earth, i ss. 40, 41, 42. 5 See Ballacorkish, &c. Co. v. Har- • Ss. 39, 43. rison, u. s., 59, 60. 3 See Loosemore v. Tiverton, &c. 6 See Eardley v. Granville, u. s., 833. B. C. 22 Ch. D. 34, 43. 7 See Ballacorkish, &c. Co. v. Har- 4 Ballacorkish. &c. Co. v. Harrison, rison, v. s. ; Eardley v. Granville, u. .■»-., L. B. 5 P. C. 59. It does not, how- 82(1, 833 : see also Great Laxey Mining ever, appear, whether the custom was Co. v. Clague, 4 App. Cas. 115, llii ; one exercisable by the lord of the A.-G. v. Mylchreest, lb. 309. manor as such. Sec also Eardley v. s Rogers v. Taylor, 1 H & N. 70(5. Granville, 3 Ch. D. 832. 9 lb. SECT. 4.] PRESCRIPTION— LORD OF MANOR. 109 stones, coals, &c, coming from such pits together in heaps on the land, being customary tenement of the manor, " near to such pits there to remain and continue," and to place wood there for the necessary use of the pits, and to take away from thence part of the coals so placed there, and to burn other part of such coals " at his and their free will and pleasure." It was held, that this custom was bad, as being uncertain and unreasonable. 1 i Broadbent v. Wilks, Willes, 3G0 ; Wilkes v. Broadbent, 1 Wils. 63 ; 2 Str. 1224. CHAPTER VI. Every co- owner entitled to work. WORKING AND USER AS BETWEEN CO-OWNERS AND PARTNERS. Sect. 1.— CO-OWNERSHIP WITHOUT PARTNERSHIP EITHER IN WORKING OR LAND. a. Possession and Working — Generally. Any joint tenant, tenant in common, or coparcener, of a mine or quarry, is entitled to enter upon and work it. 1 " No authority has been referred to, and I believe none can be found, to say that the rights of tenants in common in a mine are not as extensive as can be suggested for each of those tenants to do what he wills with the undivided property, provided always that he does not take more than his share." .... " How is a tenant in common to enjoy his share (if that is the right expression) of the common property in a coal mine, if he is not at liberty to Remedies for dig and carry away the coal ? " 2 In case of actual ouster, the with^hT- i n j ure d P ai 'ty may recover possession of his undivided share ; 3 and he may recover mesne profits ; 4 or charge the wrongdoer with an occupation rent. 5 And he may recover damages either where there is actual ouster, or where the common property is destroyed by the act of the co-owner. 6 Unless, however, in case generally. 1 See and consider Goodwyn v. Spray, 2 Dick. G67 ; Dcnys v. Shuck- burgh, 4 Y. & C. Eq. Ex. 42 ; Griffies v. Griffies, 8 L. T. N. S. 758 ; Jacobs v. Seward, L. R. 5 H. L. 464 ; Job v. Potton, 20 Eq. 84, 93, 94, 97. See also Co. Litt. 199 b, 200 b. Perens v. Johnson, 3 Sm. & G. 427, does not contain anything to the contrary. Cf., as to Letters Patent, Mathers v. Green, 1 Ch. 29. 2 Job v. Potton, 20 Eq. 84, 93, per Bacon, V.-C. ; in effect overruling several of the dicta in Wilkinson v. Haygarth, 12 Q. B. 837. Ackroyd v. Briggs. 14 W. R. 25. is no authority- to the contrary of Job v. Potton ; its facts being apparently entirely misstated : see the report in 15 L. T. N. S. 521. 3 Co. Litt. 199 b. 4 Denys v. Shuckburgh, 4 Y. . Jewell, 18 Ch. D. 660,664, 665. 19 Ves. 157, 159; 19 Beav. 356 n., 2 Clarke v. Hart, U.S.; Garden,&c. Co. 357 n. ; Norway v. Rowe, 19 Ves. 156, v. M'Lister, 1 App. Cas. 39. 57 ; Rule v. 157 ; Tatam v. Williams, 3 Ha. 356 ; Jewell, u.s. See also Erlanger v. New Clegg v. Edmondson, v. *., 787. In Sombrero Co., 3 App. Cas. 1282, 1283. the latter case the plaintiff took no 3 Clarke v. Hart, u. s. step for nine years. See also Clements 4 See Clarke v. Hart, 6 H. L. C. v. Hall, u. s., 186, 187, 188. 633 ; Clegg v. Edmondson, 8 De G. M. 8 Clegg v. Edmondson, v. g. & G. 787 ; Whalley v. Whalley, 2 De » lb. 810. Cf. Rule v. Jewell, 18 Ch. G. F. & J.. 310. 331. D. G60, ante, p. 120. 122 WORKING AND USER AS [CHAP. VI. it must always in such a case be difficult for a claimant to get rid of the objection of delay by attempting to show, that the mine in question had been tested and explored, and that no uncertainty whatever attached to its value. For no " degree of science foresight and examination affords a sure guarantee against sudden losses disappointments and reverses " in the working of a mine. 1 And the same rule, which applies against a beneficial owner, applies against a personal representative. 2 The objection of delay may, however, be got rid of by the claimant showing, that he has applied for accounts of the working, and that the application has been refused. For, in such a case, he has been kept in ignorance of the circumstances, which were necessary to enable him to decide as to the propriety of insisting on his right. 3 And of course the objection can be got rid of, if the claimant has been under disability.' 1 And in doubtful cases the non- communication of the intention to apply for the renewal, or the smallness of the subsequent outlay and profits, is an element in favour of the claimant. 5 The doctrine, that delay is fatal to the enforcement of a trust, does not appear to apply with the same force, where the trust is express, as where it is constructive. Manager may, prima facie, bind partners by necessary or usual dealings. c. Pledging Credit. (a) Dealings on Credit. The manager of a mining partnership, whether he be a part- ner or not, may, primd facie, as between the partners generally and the creditor, bind the partners generally by incurring debts for wages and goods and by other dealings on credit for the purpose of working the mine, if such a course appear to be necessary or usual in the management ; and such creditor may 1 Clegg v. Edrnondson, 8 De G. M. & G. 814, per Knight-Bruce, L.J. - See Clements v. Hall. 2 De G. F. &J. 186, 188. 3 See Clements v. Hall, 2 De G. & J. 173, 188 (reversing S. C. 24 Beav. 333), per Lord Cranworth. 4 Clegg v. Edrnondson, u. s., 813. 5 Clements v. Hall, 2 De G. F. & J. 189, 190, per Turner. L.J. The latter judge laid it down, that in all cases, where the right to enforce the trust is sought to be defeated, the grounds put forward for defeating it should be watched with jealousy. 6 See Walker v. Jefferys, 1 Ha. 341 ; Clegg v. Edrnondson, w. s., 808, 812. Cf . ante, p. 121. But see Whalley v. Whalley, 2 De G. F. & J. 310. SECT. 3.] BETWEEN ORDINARY PARTNERS. 12' sue any partner accordingly. 1 And, even, if, in such a case, the concern is being carried on with a smaller amount of capital than the amount agreed on at the time of its formation, the defendant will not be free from liability if he has acquiesced in that course of management. 2 Of course, however, in every such action it must appear, that the defendant is in fact a partner, or has held himself out as such. 3 And if the goods supplied are not necessary or usual in the working, the partners are not liable for their price. 4 (/3) Borrowing Money. It is doubtful, whether the authority of the manager extends Doubtful so as to bind the partners by borrowing money on their credit, can bind by although such money be applied for the necessary purposes of borrowms the mine. In Burmester v. Novris* an action was brought against a company, which had been established for the purpose of purchasing and working mines in Prussia and Bavaria, to recover moneys which had been from time to time lent to the directors, and expended by them in working the mines. The deed of settlement of the company provided, that the capital should be £50,000 ; and it also provided means for raising additional capital, in case such a course became necessary. It further provided, that the business of the company should be under the sole control of the directors. It was held, that the deed intended the mines to be worked by means of the capital to be subscribed, and that the provision as to control merely referred to the management ; that, independently of the deed, the directors had no power to borrow money; and that the action was, consequently, not maintainable. 6 However, in Ducarrey v. Gill, 7 where the proceeds of a bill drawn by the 1 German Mining Co., 4 De G. M. 3 Pott v. Eyton, 3 Com. B. 32 : cf. & G. 19, 40, 41. The same principle Carter v. Whalley, 1 B. & Ad. 11. applies in the case of cost-book 4 Copper Miners' Co. v. Fox, 1(3 Q. mines : seepost, Chap. XIX., Sect. 3, a. B. 229. 2 Steigenberger v. Carr, 3 Man. & 5 6 Exch. 796. G. 191 ; 3 Scott N. K. 4(36. The same 6 See also German Mining Co., 4 De principle applies in the case of cost- G. M. & G. 35. book mines" : see post, Chap. XIX., 7 M. & M. 450 ; 4 C. & P. 121. Sect. 3, a. 12 1. WORKING AND USER AS [CHAP. VI. managers of a mining concern had been applied for the purposes of the concern, it was held that the defendant, who was a director and shareholder, although not liable on the bill, 1 was liable as for money lent. So, in Brown v. Kidger* There the defendants were partners in a mining concern, the deed of part- nership of which provided a means of raising additional capital to that originally subscribed, in case such a course became neces- sary. It was thereby also provided, that if any partner should, for any other purpose than the immediate use of the partner- ship, draw, accept, or indorse any bill of exchange in the name of the firm, the others might, by giving notice, dissolve the partnership. The plaintiff, on the promise of two of the defendants to secure him by a bill in the name of the partner- ship, paid certain claims against the concern, to enforce which actions had been commenced. The bill was subsequently given, and the action was brought to recover the amount secured. It was held (1) that the defendants who gave the bill had a clear prima facie authority to borrow money for the purposes of the partnership ; (2) that the deed could not have intended that until additional capital was raised according to its provisions, the business of the firm should be stopped; and (3) that it implied a power to draw bills, which was more extensive than a mere borrowing power ; and that, accordingly, so far from im- pliedly excluding an authority to borrow money, it impliedly affirmed that authority. 3 But he pro- It is not easy to see why the prima facie position of an bably can. ordinary mining partnership or company, as regards the autho- rity of the members to bind each other by borrowing money for the necessary purposes of the concern, should differ from that of other trading partnerships or companies ; 4 and it is conceived that Ducarrey v. Gill and Brown v. Kidger are more satisfactory decisions than Burmester v. Norris? At all events, if the moneys in question are not borrowed from strangers, but are 1 See infra (7). mines stands upon a different footing : 2 3 H. & N. 853. see post, Chap. XIX., Sect. 3, b. 3 This seems wholly irreconcileable 5 See, however, the observations of with Burmester v. Norris, 6 Exch. 796, Turner, L.J... in German Mining Co., u. s. i De G. M. & G. 39 ct sen. 4 The law as respects cost -book SECT. 3.] BETWEEN ORDINARY PARTNERS. 125 advanced by some of the partners themselves at the request of the manager or managers, they will be treated as debts due from the partnership ; : and will, moreover, 'prima facie be allowed to carry interest. 2 And if the moneys in question are advanced by the managers, they may be entitled to be indemni- fied by the partners. 3 (y) Negotiable Instruments. However, prima facie, the manager of a mining concern has He cannot, no authority to bind the partners ; nor has any partner authority nor can to bind the other partners ; by drawing or making or accepting or j^ P inresii: ect endorsing bills of exchange or promissory notes. 4 In such cases ° f negotiable . instruments. the person, who draws or makes or accepts or indorses a bill of exchange or a promissory note, is alone liable. And where a bill is drawn upon a mining concern, and accepted by one of the partners, not in his individual capacity, but by procuration for the concern, the partner so accepting is personally liable. 5 Know- ledge or acquiescence may, however, render a partner liable, who would otherwise not be so. G But where the deed of association of a mining concern empowered voting by proxy at meetings of the company ; and a meeting took place ; and a resolution was carried authorising the resident director to accept bills for the company ; a managing director, who was not present, but was represented by proxy, was held not to be bound. 7 The state of the law as to negotiable instruments does not seem incon- sistent with the proposition, that one of two partners may bind the other by borrowing money for the pressing necessities of the concern ; a mere borrowing power being obviously 1 German Mining Co., 4 De G. M. Morrell, 12 A. & E. 745 ; Brown v. & G. 19 ; where the company in ques- Kidger, 3 H. & N. 853 (the facts of tion was the same as in Burmester v. which are stated ante, p. 124) ; Bate- Norris, u. s. man v. Mid- Wales R. Co., L. R. 1 C. 2 lb., per Knight-Bruce, L.J., Tur- P. 499 ; Peruvian Railways Co. v. ner, L.J., doubting. Thames, &c, Co., 2 Ch. 617. The law 3 German Mining Co., v. s. as to cost-book companies is the same, 4 Ducarrey v. Gill, M. & M. 450 ; see post, Chap. XIX., Sect. 3, c. 4 C. & P. 121 ; Bentley 0. Bates, 5 Owen v. Van Uster, 10 C. B. 318. 4 Y. & C. Eq. Ex. 191 ; Thicknesse v. 6 Harrison v. Heathorn, 6 M. & G. Bromilow, 2 Cr. & J. 425 ; Brown v. 81 ; Thicknesse v. Bromilow, u. s. Byers, 16 M. & \V. 252 : cf. Bult v. 7 See Brown v. Byers. u. s. 126 WORKING AND USER AS BETWEEN ORDINARY PARTNERS. [CHAP. VI. much less extensive than that of drawing or making or accepting or indorsing bills of exchange or promissory notes. Comp. Act, Section 47 of. the Comp. Act, 1862, does not of itself confer on companies registered under that Act a power of issuing negotiable instruments. 1 1 Peruvian Railways Co. v. Thames, &c. Co., 2 Ch. 617. 1862 CHAPTER VII. POWERS WITH RESPECT TO SALES, PURCHASES, ENFRANCHISEMENTS, PARTITIONS, EX- CHANGES, AND INCLOSURES. PART A.— SALES, PURCHASES, ENFRANCHISEMENTS, PARTITIONS, AND EXCHANGES. Sect. 1.— TENANT IN FEE. (a) Tenant in Fee Simple. Every ordinary tenant in fee simple may, of course, sell his May sell. mines or quarries. The Court has authority to sanction the sale of the mines or quarries of an infant tenant in fee. 1 Indeed, infant may under the Settled Land Act, 1882, 2 such an infant is in the same position as a tenant for life ; and the powers of the Act may be exercised on his behalf by the trustees of the settlement, or, if there are none, then under the direction of the Court. 3 Mines or quarries belonging to a lunatic tenant in fee may be Lunatic may sold or otherwise disposed of under the order of the Court, if such a course be for his benefit, 4 And mines or quarries, to which such a lunatic is entitled in an undivided share, may in like manner and in the like event be sold, partitioned, or exchanged. 5 And land containing such mines or quarries may 1 See 44 & 45 Vict. c. 41, s. 41, by sale of particular clnmps of timber in which the provisions of the Settled a due course of management (Dyer ft Estates Act, 1877 (infra, Sect. 2, a) are Dyer, 34 Beav. 504) furnished no made applicable to infants. analogy upon the present point : see 2 45 & 46 Vict. c. 38. ante, p. 43, n. '. 3 Ss. 59, 60. The Court had for- 4 See Lun. Reg. Act, 1853, 16 & 17 merly no such authority : see and Vict. c. 70, ss. 116 et seq. consider Re Smith, 10 Ch. 84, 85. The 5 S. 124. power of the Court to authorize the J 28 POWERS AS TO SALES, PARTITIONS, [CHAP. VII. be sold, partitioned, or exchanged without the mines or quarries, and without any obligation to leave support for the surface. 1 All moneys received on any such sale, partition, or exchange, must be applied for the benefit of the lunatic ; and, on his death, are, so far as they are not so applied, considered as real estate. 2 Where two persons of sound mind were tenants in common of mines with a lunatic ; and the two sold a part of the mines, and granted a lease of another part, in consideration of a gross sum payable by instalments within a limited time ; and one of the two subsequently became a lunatic ; and the other sold and granted a lease of other parts in like manner ; and the sales and leases were subsequently confirmed by the Court; and the first lunatic died leaving the second lunatic her heir-at-law and sole next of kin ; and the second lunatic then died ; it was held, (1) that the leases were in the nature of absolute sales; (2) that the confirmation of the sales and leases operated as sales under the order of the Court ; and (3) that, as between the real and personal representatives of the second lunatic, the proceeds both of the sales and the leases effected after she became such belonged to her heir-at-law as real estate. But it was held, (4) that the shares of both the lunatics in the proceeds of the sale and lease in which the second lunatic concurred were converted, and belonged to the second lunatic's next of kin. 3 03) Tenant in Tail. May sell. A tenant in tail of mines or quarries may, upon barring the entail, 4 sell them. And, under the Settled Land Act, 1882, 5 he has the same powers as a tenant for life. 6 1 He Dicconeon, 15 Ch. D. 316. land) of dispensing with a prohibition 2 16 & 17 Vict. c. 70, ss. 116—121, upon an heir of entail from granting 124, 135. water easements, see Clerk v. C, 10 3 Be Smith, 10 Ch. 79. Sess. Cas. (Ser. 3) 647. 4 A fine might formerly have been 5 45 & 46 Vict. c. 38. levied of mines : Port v. Turton, 2 6 S. 58. Wils. 172. As to the power (Scot- TART A, SECT. 2.] AND EXCHANGES — TENANT FOR LIFE. 129 Sect. 2.— TENANT FOR LIFE. a. Settled Estates Act, 1877. 1 Under the Settled Estates Act, 1877, sales of land containing May sell . p r. n l u under Coiut. mines or quarries may, under the authority of the Court, be obtained at the instance of a tenant for life. 2 And on any sale And may of land, which may be authorized, " any earth, coal, stone, or sur f ;LCC and mineral may be excepted, and any rights or privileges may be mme - reserved, and the purchaser may be required to enter into any covenant, or submit to any restrictions, which the Court may deem advisable." 3 And the Court has power under the Act to authorize a sale of mines with an exception of the surface ; 4 or with an exception of the surface, a grant of mining easements over the surface, and a reservation of rent in consideration of such grant. 5 All money to be received on any sale effected under the Application of authority of the Act may, if the Court shall think fit, be paid to any trustees of whom it shall approve, or otherwise must be paid into Court; and such money must be applied, as the Court may from time to time direct, to some or one of the purposes mentioned in the Act; 6 or, if in Court, it may be invested or applied as capital money arising under the Settled Land Act, 1882. 7 And, until the money can be so applied, it must be invested, and the dividends paid to the parties entitled. 8 1 40 & 41 Vict. c. 18. be sanctioned. For the form of the 2 S. 16. Leave to sell is obtainable order, see Set. 1498. at the instance of " any person en- 5 Re Milward's Estate, 6 Eq. 248 ; a titled to the possession or to the re- decision under the same Act. For tbe ceipt of the rents and profits of any form of the order, see Set. 1498. settled estates for a term of years 6 S. 34 : see also s. 35. determinable on his death or for an " 45 & 46 Vict. c. 38, s. 32 : see estate for life or any greater estate" post, pp. 131, 132. (*. 23). s S. 36. For the form of order, see 3 S. 19. For the form of the order, Set, 1498, 1499. For an order autho- see Set, 1498 ; Re Barrow, Set. 1499. rizing a sale with an exception of 4 Re Mallin's Estates, 3 Giff. 126 ; minerals, and approving of the in- nom. Re Law, 7 Jur. N. S. 511 ; Re vestment of part of the proceeds in the Gray's Estates, W. N. 1875, p. 106 ; purchase of other land, see Re Oke- decisions under the repealed Act 19 over ; Wheeler v. Tootell, Set. 1501, & 20 Vict, c. 120, s. 11. See the 1502. A married woman applying to former case for an illustration of the Court, or consenting, mnst be the terms on which such a sale may examined apart from her husband K 130 POWERS AS TO SALES, PURCHASES, ENFRANCHISEMENTS, [dl. VII. Meanings of "mines and minerals " and " mining purposes " in Settled Land Act. Tenant for life may sell, enfranchise, exchange, and partition. And may separately deal with surface and mine, and create restric- tions and ease inents. b. Settled Land Act, 1882. l In the Settled Land Act, 1882, the following expressions have or include the following meanings : — "Mines and minerals " mean mines and minerals whether already opened or in work, or not ; 2 and include all minerals and substances " in, on, or under " the land, obtainable by underground or by surface working. 3 And "mining purposes" include the sinking and searching for, win- ning, working, getting, making merchantable, smelting or otherwise converting or working for the purposes of any manu- facture, carrying away, and disposing of " mines and minerals in or under " the settled land, or any other land ; and the erection of buildings ; and the execution of engineering and other works suitable for those purposes. 4 A tenant for life may sell the settled land or any part of it, or any easement right or privilege over or in relation to it ; and he may effect an enfranchisement, with or without an excep- tion or reservation of the " mines or minerals," or of any rights or powers relative to " mining purposes " ; and he may make an exchange, and concur in making a partition; 5 at the best consideration that can reasonably be obtained. On a sale, exchange, or partition, any restriction or reservation with respect to " mines and minerals," or with respect to or for the purpose of the more beneficial working thereof, may be imposed or reserved and made binding, as far as the law permits, on the tenant for life and the settled land or any part of it, or on the other party and any land sold or given in exchange or on parti- tion to him ; and an enfranchisement may be made with or without a re-grant of any right, easement, or privilege theretofore (8. 50) ; but, if she is out of the juris- diction, and time is of importance, her examination may be dispensed with (Halliday's Estates, 12 Eq. 199). As to infants, lunatics, bankrupts, and married women, see ss. 49—52. 1 45 & 46 Vict. c. 38. 2 As to open and new mines or quarries, see ante, pp. 22 et seq. 3 S. 2. Cf. ante;??. 4 et seq. The expression "mines or minerals" is occasionally used in the Act : but this, of course, is equivalent to " mines and minerals." 4 S. 2. As Mr. Gierke points out, the word " on," which is used in the definition of " mines and minerals," is absent from the definition of " mining purposes ;" but, nevertheless, having regard to the probably extensive mean- ing of the words " within and under " (as to which see ante, p. 13), the ex- pression " mining purposes " probably includes a reference to surface work- ings : see Gierke on the Act, 30. * S. 3. PT. A, SECT. 2.] PARTITIONS, AND EXCHANGES — TENANT FOR LIFE. 131 held or enjoyed with the land enfranchised. 1 And any sale, exchange, or partition may be made either of land with or without an exception or reservation of all or any of the "mines and minerals" therein; or of any "mines and minerals;" and in any such case with or without a grant or reservation of powers of working, way-leaves or rights of way, rights of water and drainage, and other powers, easements, rights, and privileges for or connected with " mining purposes," in relation to the settled land, or any part of it, or any other land ; and an exchange or partition may be made subject to and in consideration of the reservation of an undivided share in "mines or minerals." 2 And a tenant for life has corresponding powers of executing deeds, 3 and of entering into preliminary contracts. 4 " Capital money " arising under the Act must in general be Application invested or applied in some or one of the modes mentioned in capTtaTmoney. the Act; which include the following: — (1) In payment for any improvement authorized by the Act. (2) In the purchase of land in fee simple, or of copyhold or customary land, or of leasehold land held for sixty years or more unexpired at the time of purchase ; subject or not to any exception or reservation of or in respect of "mines or minerals" therein, or rights or powers re- lative to the working of "mines or minerals" therein, or in other land. (3) In the purchase, either in fee simple, or for a term of sixty years or more, of "mines and minerals" convenient to be held or worked with the settled land ; or of any easement, right, or privilege convenient to be held with the settled land for "mining" or other " purposes."/ And, in order to its being so invested 1 S. 4. trustee : see s. 53. He would, there- 2 S. 17. Mr. Clerke 9tates (see p. fore, be under precisely the same dis- 65) that, under this provision, a tenant ability as an ordinary trustee (as to for life, if unimpeachable of waste, whom see post, p. 133) to enter upon may, by a course of dealing similar to the course of dealing in question, if that mentioned in the case of trustees and so far as it would prejudice his suc- (jtost, p. 133), leave no estate whatever cessor. As regards easements, s. 17 is for his successor in title. But this intended to enlarge the rights of the does not appear to be so. It has been mine owner, whereas the provision in held, that a tenant for life without s. 4, as to restrictions and reservations impeachment of waste, with power to is intended to limit his rights : see sell, is not entitled, if he sells, to the Clerke, 39, 40. produce of the timber on the lands : s S. 20. see Doran v. Wiltshire, 3 Swanst. 699, 4 S. 31. 701. Moreover, a tenant for life is, 5 S. 21. under this Act, in the position of a k 2 132 POWERS AS TO SALES, PURCHASES, ENFRANCHISEMENTS, [cil. VII. with capital niouey or applied, it must be paid either to the trustees of the settle- ment or into Court, at the option of the tenant for life ; and must be invested or applied by the trustees or under the direc- tion of the Court accordingly. Capital money, while uninvested or unapplied, and the investments thereof, are deemed land, and devolve according to the estates and trusts prescribed by s the settlement. 1 Improvements with capital money authorized by the Act are the making or execution on or in connexion with and for the benefit of settled land the works and operations therein mentioned ; which include the following :— (1) Jetties, piers, and landing places on rivers, lakes, the sea, or tidal waters, for facilitating the transport of minerals and of things required for "mining purposes." (2) Brick-making, tile-making, and other works in connexion with the authorized objects. (3) Trial pits for mines and other preliminary works necessary or proper in connexion with the development of mines. (4) The reconstruction, enlargement, or improvement of any of the authorized works. 2 The tenant for life and his successors may, without impeachment of waste, execute the authorized improve- ments and repair them, and do make and use all acts, works, and conveniences proper for those purposes, and get and work firestone, limestone, clay, sand, and other substances, and make tramways and other ways, and burn and make bricks, tiles, and other things. 3 Where, under a settlement, money is in the hands of trustees, and is liable to be invested in land, the trustees may, at the option of the tenant for life, invest or apply it as capital money arising under the Act. 1 Land acquired by purchase, or in exchange, or on partition, must be made subject to the settlement by conveyance and otherwise as directed by the Act ; and the directions in question extend and apply, as far as may be, to " mines and minerals," and to easements rights and privileges over and in relation to land. 5 In exercising the powers of the Act a tenant for life is a trustee for all the parties interested. 6 But the Court may, where it is expedient, appoint trustees for the purposes of the Otlier provi- sions. 1 S. 22. 4 S. 33. * S. 25 : see also ss. 26, 27, 28. 5 S. 24. 3 S. 29. 6 S. 53. PART A, SECT. 3.] PARTITIONS, AND EXCHANGES — TRUSTEES. 133 Act; 1 whose receipts are effectual discharges. 3 A tenant for life, when intending to make a sale, exchange, or partition, must give notice to the trustees of the settlement, and (if he is known to him) to their solicitor ; and at the date of the notice the number of the trustees must not be less than two. 3 Sect. 3.— TRUSTEES. a. Sale — Generally. Of course trustees have no power, prima facie, of their own May not 11 i i • • • • a i i prima fade, motion, to sell lands containing mines or quarries. And where se ii ; orsepar- trustees of a settlement, under which a tenant for life with- ^V*"! 1 , ?,'•'* ' race ami mine, out impeachment of waste is in possession, have a mere power to sell the lands, without more, they have no right, of their own motion, to sell them with an exception of the mines. 4 It is obvious that, if trustees had such a right, it might be in the power of a tenant for life, without impeachment of waste, to leave no estate whatever for his successor in title. The trustees might exercise their right, and might with the proceeds of sale, purchase land which itself contained mines, and which the tenant for life could not be prevented from working. And such sales might be repeated indefinitely. 5 However, in all proper cases recourse may be had to the powers given by the Settled Estates .Act, 1S77, 6 and the Settled Land Act, 1882. 7 b. Sale — Confirmation of Sales Act. 8 And by the Conf. of Sales Act, sales, exchanges, parti- May under tions, or enfranchisements, then already in exercise of a deal with trust or power not forbidding the exception, made of land, • suif;ice and 1 . mine. with an exception of the minerals, or of minerals with an 1 Ss. 38, 39. express powers, see infra, Sect. 3, d. 2 S. 40 : see also ss. 41—44. 4 Buckley v. Howell, 29 Beav. 546. 3 S. 45. As to procedure, see ss. 46 Cf. Plymouth v. Archer, 1 B. C. C. et seq., and the Settled Land Act Rules, 159, 160. 1882. Other specified limited owners 5 See Buckley v. Howell, u. s. have the powers of a tenant for life : 6 Ante. p. 129. s. 58. As to infants, married women, " Ante. p. 130. and lunatics, see ss. 59 — 62. As to 8 25 & 26 Vict. c. 10*. 134- POWERS AS TO SALES, PURCHASES, ENFRANCHISEMENTS, [cH. VII. exception of the residue of the land, and in either case with or without incidental rights or powers, were confirmed. 1 And every " trustee and other person," then or thereafter to become autho- rized to dispose of laud by way of sale, exchange, partition, or enfranchisement, was, unless forbidden by the instrument creating the trust or power, empowered, on obtaining the pre- vious sanction of the Court, to make such disposition, with an exception of any minerals, and with or without incidental rights and powers ; or to dispose of the minerals, with or without such rights or powers, separately from the residue of the land ; and, in either case, without prejudice to any future exercise of the authority with respect either to the excepted minerals, or the undisposed-of land. And it was provided, that the sanction of the Court once obtained should extend to the enabling any disposition to be made from time to time, without the necessity of any further or other application to the Court. 2 The Court will, on petition under the Act, make an order authorizing the sale of land with an exception of the mines, or of the mines with an exception of the surface, in general terms, and without Practice under reference to any particular sale. 3 A petition by trustees, who have a power of sale exercisable with the consent of the tenant for life, for leave to sell the lands and minerals separately, need not, if served on the tenant for life, be served on the remainder- man. 4 But, upon a petition by trustees, who have a power of sale, for leave to sell the surface and mines separately, the cestuis que trustent must either be copetitioners, or must appear and consent. 5 c. Purchase. Way not in Trustees, who hold money for the purpose of an investment in general pur- ^ x chase. land, are not, as a general rule, empowered to purchase land con- taining mines or quarries. It would seem, however, that trus- tees cannot be prevented from purchasing land containing mines or quarries, opened or unopened, if such an investment would 1 S. 1. Estates, u. s. ■ S. 2. s Brown "s Trusts, 32 L. J. Ch. 275 : 3 Willway's Trust, 32 L. J. Ch. 226 ; Palmer's Will, 13 Eq. 408. For forms Wynn's Estates, 16 Eq. 237. of orders under the Act, see Re Caw- 4 Pryse's Estates,) 10 Eq. 531 ; dor ; Re Trevor-Eoper ; Re Bowes' Powell's Will, 23 W. R. 151 ; Nagle's Estate Act ; Re Willway's Trusts ; Trusts, 6 Ch. D. 104 : see also Wynn's Re Brown's Trusts ; Set. 1258. PART A, SECT. 3.] PARTITIONS, AND EXCHANGES — TRUSTEES. 135 be plainly beneficial for all the parties interested. 1 And, assum- ing that they act without any desire to favour a tenant for life to the prejudice of a remainderman, or a remainderman to the prejudice of a tenant for life; the facts, that a tenant for life may work open mines, 2 or, if dispunishable for waste, unopened mines ; 3 and that a tenant for life, punishable for waste, can- not work unopened mines ; 4 are, it would seem, immaterial. 5 Where a testator directed trustees to invest trust moneys in land adjoining to, or convenient to be held with, other land devised by him in strict settlement, the Court sanctioned an investment in mines partly under and partly beside such other land. 6 d. Sale and Purchase — Express Powers. It will frequently be desirable to supplement the provisions of Frequently the Settled Estates Act, 1877, 7 and the Settled Land Act, g i ve exi , re3a 1882, 8 by creating express powers to sell mines or quarries, and i J0Wers - to except them or the surface from a sale of the land. And mines and quarries being the subject-matter of an exception, and not of a reservation, 9 they would not, it has been said, be construed as coming within the word " reservations " in a power. 10 Nor would they, it has been said, be construed as coming within the words " rent and reservations," where there were, in fact, reservations besides rent. 11 And it has been said to be doubtful, whether they would be construed as coming within those words, where there appeared to be, in fact, no reservation, except rent. 12 And, if such be the intention, a settlement should contain an express power to purchase mines or quarries. Where a settlor desires to create an express power to sell or to purchase mines 1 See Buckley v. Howell, 29 Beav. 6 Bellot v. Littler, 22 W. R. 836. 552, 553. As to open and new mines 7 Ante, p. 129. or quarries, see ante, p. 22 et seq. 8 Ante, pp. 130 et seq. As to laying out in the purchase of 9 See ante, p. 11. mines the proceeds of a sale under 10 Doe ?>. Lock, 2 A. k E. 705. the Settled Land Act, 1882, see ante, n Doe v. Lock, v. s. p. 131. 12 Ih. for the form of sucb a power, 2 Ante, p. 46. see Dav. 3, pp. 1018, 1019 ; 4. pp. 81, 3 Ante, p. 55. * 82, n. A power to except mines on a 4 Ante, p. 51. partition or exchange is frequently uee- s See Buckley v. Howell, u. s. ful. For a form, see Dav. 4, p. 42S. 136 POWERS AS TO SALES, AND PURCHASES— [CHAP. VII. or quarries, lie should, it would seem, make the trustees of the settlement the donees of the power. 1 In creating such a power a settlor should, of course, take care to authorize the donees to grant, or reserve, or acquire ; as incident to a sale, or to a sale with an exception, or to a purchase ; such easements and liber- ties, by way of instroke, 2 outstroke, 3 or otherwise, to be exer- cisable in, upon, over, under, through, or in respect of, the adjoining lands ; or the adjoining lands and the lands excepted or assured ; or any other lands ; as the circumstances of the case may render practicable and desirable. 4 And it will in most cases be prudent to limit the powers of the donees by providing, that they shall not sell or purchase, except with the consent in Application of writing of the tenant for life, if of full age. Where a settlement proceeds. contains a power to sell mines or quarries, it should also contain express provisions as to the mode of dealing with the proceeds of sale. It may, otherwise, be doubtful, especially if the settle- ment comprises open mines or quarries, 5 or gives a tenant for life power to work new mines or quarries, 6 whether the inten- tion is that the proceeds shall be treated as capital or as income. In most cases, the fairest course for all the beneficiaries will be to provide a similar destination for the proceeds to that pro- vided for the proceeds of sales under the Settled Land Act, 1S82. 7 Sect. 4.— MORTGAGEE. Mortgagee. The expression " other person," mentioned in the Conf. of Sales Act, 8 has been held to include a mortgagee. 9 It is not necessary for a mortgagee, who presents a petition under the Act, to serve it upon subsequent incumbrancers. 10 And an order may be made, notwithstanding the opposition of a subsequent incumbrancer, or of the mortgagor. 11 1 See Vivian v. Jegon, L. R. 3 H. L. of working and management, see ante, 2'JO. p. 66. 2 See^msf, Chap. XL, Sect. 3, c. 8 See ante, p. 134. 3 See post, Chap. XL, Sect, 4(a). 9 Beaumont's Mortgage Trusts, 12 4 See generally, post, Chap. X., e. Eq. 86; Wilkinson's MortgagedEstates, For the form of such an authority, see 13 Eq. 634. Dav. 3, p. 1019. iu Beaumont's Mortgage Trusts, u.s. 5 See ante, pp. 22 et seq., 47. " Wilkinson's Mortgaged Estates, 6 See ante, pp. 22 et seq., 51 et seq. u. s. J Ante, pp. 131, 132. As to powers TART A, SECT. 5.] MORTGAGEE— CO-OWNERS AND PARTNERS. 137 Sect. 5.— CO-OWNERS AND PARTNERS. a. Transfer of Share. Any co-owner of a mine or quarry may transfer his share ^-°™ luay without the consent of the other or others. 1 Any partner at Partner in will in the working of a mine or quarry, who is a mere co-owner Jjjjjjj may of the land itself, may transfer his share both in the land and in the working without the consent of the other or others. 3 His right to transfer his share in the land cannot De less than his right to do so would have been if he were not a partner in the working. And his right to transfer his share in the working is like the right of any other partner at will to transfer his share. 3 Such a transfer, however, operates as a dissolution of the partnership : 4 and if any subsequent working is carried on between the old partners and the transferee, it is by virtue of a fresh partnership arrangement. Any partner for a term in the working of a mine or quarry, who is a mere co-owner of the land, has a similar right of transfer. 5 Such a transfer does not necessarily operate as a dissolution ; but the old partners may treat it as a dissolution or not at pleasure. 6 Any ordinary Ordinary partner may transfer. 1 Crawshay v. Maule, 1 Swanst. 505, 518, 519, 523 ; Bentley v. Bates, I Y. & C Eq. Exch. 189 : see Steward v. Blakeway. 6 Eq. 179 ; 4 Ch. 6U3. 2 See Crawshay v. Maule, u. s., 517, 518, 519, 523 ; Bentley v. Bates, u. s., 189. It will be observed, that, in Crawshay v. Maule (see Roberts v. Eberhardt. Kay, 155), and apparently also in Bentley v. Bates, the partner- ship was at will. 3 See Lindley, 698. 4 See Lindley, 698 : see Crawshay v. Maule, v. s., 525 ; Bentley v. Bates, u. s., 189. In Fereday v. Wightwick, 1 R. & My. 19, (the report in Tarnl. 261, does not contain the words), it was said, " The shares,'' in a mining concern, " are assignable, and the death or bankruptcy of the holder of shares does not operate as a dissolution ; " and a similar statement was made in Ex parte Broadbent, 1 M. & A. 638. But these propositions can- not, except as respects cost-book mines (as to which see post, Chap. XIX., Sect, i, a (a), c (a) (0) ), be sus- tained. See Jefferys v. Smith, 3 Russ. 167, 16S; Tatam v. Williams, 3 Ha. 355. 5 See Ex parte Broadbent, 1 M. & A. 638. 6 See Lindley, p. 698. See Perens v. Johnson, 3 Sm. k G. 424. It will be observed, that in Bentley v. Bates, v. s., where theL. C. B. (p. 189), says, " Why pray for a dissolution in a case where you may dissolve the part- nership itself by selling your own share ? " it does not appear, that the partnership was anything more than at will. 138 POWERS AS TO SALES AND PARTITIONS — [CHAP. VII. partner, either at will or for a term, in a mine or quarry, may- transfer his share without the consent of the other or others. The effect of such a transfer is the same as the effect of a transfer by a person who is a partner in the working, but a mere co-owner of the land. 1 b. Partition. Any co-owner of a mine or quarry may have a partition of the whole mine or quarry; 2 unless, from the impossibility or inconvenience of having a partition, it would be more proper to direct a sale. 3 And any partner in the working of a mine or quarry, who is a mere co-owner of the land itself, has a similar right ; 4 either before or upon a dissolution. 5 But no ordinary nary partner. p ar tner in a mine or quarry is entitled, against the will of his co-partners, to have the mine or quarry partitioned. 6 Co-owner may in general partition. And partner in working. But not ordi- Co-owner may have sale under Acts. c. Bale of Entirety — Partition Acts. 1 Independently of the Partition Acts, a co-owner of a mine or quarry is not entitled, as of right, to have the whole mine or quarry sold. 8 Nor is a partner in the working of a mine or quarry, who is a mere co-owner of the land itself, so entitled; either previously to, or upon a dissolution. 9 However, under the Partition Act, 18G8, 10 if it appears to the Court that a sale of the property and a distribution of the proceeds would be more beneficial than a partition, the Court may, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others, direct a sale accordingly. 11 And, if the 1 Ante, p. 137. 2 Crawshay v. Maule, 1 Swanst. 518. For a decree for a commission to set out the boundaries of two collieries, and the commissioners to look into both the collieries and see how the one intermixed with the other, and to set down temporary boundaries ; and the order on further consideration, con- firming the certificate and directing the collieries to be held and enjoyed accordingly ; see Collingwood v. Jeni- son, Set. 1032. s See Wild v. Milne, 26 Beav. 504. 4 His right in this respect cannot be less than if he was not a partner. 6 See Wild v. Milne, ti. s. 6 Wild v. Milne, u. s. 7 31 & 32 Vict. c. 40 ; 39 & 40 Vict. c. 17. 8 Crawshay v. Maule, u. s., 505, 518 519, 523 ; Steward v. Blakeway, 4 Ch. 609, 610. 9 Steward v. Blakeway, u. s. 10 31 & 32 Vict. c. 40. 11 S. 3. TART A, SECT. 5.] CO-OWNERS AND PARTNERS. 139 party or parties interested to the extent of one moiety or upwards in the property request a sale instead of a partition, the Court is bound, unless it sees good reason to the contrary, to direct a sale. 1 And, if any party interested requests a sale instead of a division, the Court may, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale. 2 Where a sale of land is directed under the Act, the Court will not in general reserve the minerals. 3 d. Sale of Entirety — Ordinary Partnership. Any partner, is, in general, entitled, in an action seeking for Ordinary dissolution and accounts, and without regard to the Partition have sale with- Acts, to have the whole concern sold. 4 The other partners ^ s regard t0 cannot, for example, in the absence of contract, insist upon taking his share at a valuation. They would have no such right in an ordinary trading concern ; and a mining concern for this purpose stands upon the same footing. 5 But where there is a contract, the other partners may in general, it would seem, insist upon taking the share of one of the partners at a valuation ; even although the partnership has been dissolved by the bankruptcy of that partner. 6 Where a sale is decreed, the Court will, pending the execution of the decree, appoint a receiver and manager. 7 However, where one partner is an infant, and a proposal is made 1 S. 4. As to seeing good reason to G. 249, 250, 251 (affd. Clarke v. Hart, the contrary, see Porter v. Lopes, 7 6 H. L. C. 633) : see ante, p. 57, n. (2), Ch. D. 358 : see p. 363. and other cases there cited. See 2 S. 5. also Burdon v. Barkus, u. s. ; varying, 3 See Lawe v. Stoney, W. N. 1876, upon this point, S. C, 3 Giff. 431, p. 141. 432. 4 Featherstonhaugh v. Fcnwick, 17 6 See Whitmore v. Mason, 2 J. & H. Ves. 298 ; Crawshay B.Maule, 1 Swanst. 204, 209, 215, 216. 505, 518, 519, 523 ; Roberts v. Eber- ' See Crawshay v. Maule, v. s., 507, hardt, Kay, 155, 160; Lees v. Jones, 526,529; Lees v. Jones, n. s. ; Roberts 3 Jar. N. S. 954 ; Wild v. Milne, 26 v. Eberhardt, u. s., 160 ; Wild v. Beav. 504 ; Rowlands v. Evans ; Wil- Milne, u. s., 506 ; Rowlands v. Evans, lianas v. Rowlands, 30 Beav. 302 ; v. s., 310, 311, 312. For the form of Burdon v. Barkus, 4 De G. F. & J. 49, the order, see Clegg v. Fishwick, 50; Steward v. Blakeway, 4 Ch. 609, Set. 417. In Hart v. Clarke (w. s., 610. See Tatam v. Williams, 3 Ha. 254, 255), a receiver and manager 355, 356. was appointed, a dissolution only being 5 See Hart v. Clarke, 6 De G. M. & decreed, and the question of a sale 140 POWERS AS TO SALES AND PURCHASES — [CHAP. VII. by the co-partner to buy the share of the infant, and it appears that it would be for the benefit of the infant that such proposal should be accepted, its acceptance will be sanctioned by the Court, and a sale of the whole mine dispensed with. 1 Time of sale. A sale, to take place immediately after judgment, cannot be required as a matter of right. " The Court, if it directs a sale, will so direct it, that the property may be sold in the manner most beneficial for all parties interested " " The state of the market varies so much, that a sale, which might be beneficial at one moment, and prejudicial at another, cannot be ordered with- out inquiry." 2 And an inquiry will in most cases be directed, whether it will be for the benefit of all persons concerned in the works that the same should be sold, and in what manner, as going works ; or that they should be carried on for the purpose merely of winding up the concern. 3 And if, in an action seeking for accounts and consequential relief, it is doubtful, whether, after debiting the plaintiff with the sums which he ought to have contributed towards the working, a balance will be found due to him, although a dissolution may be adjudged and accounts ordered to be taken and a receiver and manager appointed, the question of a sale will usually be reserved until the accounts have been taken. 4 On the other hand, where a partnership has been dissolved, and the circumstances of the case require it, an order for a sale may be obtained on inter- locutory application before judgment. 5 Indeed, such an order has been obtained, even before dissolution, to prevent a total loss. 6 Mode of sale. A sale by auction will usually be directed. And in such a case some indifferent person well acquainted with mining property will be appointed to conduct the sale, and liberty to bid will be given to all the partners. 7 Sometimes it is impossible to being reserved until the accounts were 4 g ee Hart v. Clarke, 6 De G. M. & taken. G. 232, 254, 255: affirmed Clarke v. 1 Crawshay v. Maule, 1 Swanst. 530. Hart, 6 H. L. C. f>33. 2 lb. 506, 529, per Lord Eldon. 5 Crawshay v. Maule, v. .. Milne, Johnson ii s., 426, 427. 26 Beav. 504, one of the partners was 3 Lees v. Jones, v. s. : 6ee ante, pp. given the conduct of the sale, and liberty 110 et scq. was given to the others to bid. 4 Lees v. Jones, v. s., 951. 1 Lees v. Jones, 3 Jur. N. S. 955 : 5 8 & 9 Vict, c. 18, ss. 16 et grq. see however, Perens v. Johnson, 3 Sm. fi Errington v. Met. R. Co., 19 Ch. & G. 427. D. 559. 568, 569, 573, 578. 2 Lees v. Jones, u. s. ; see Perens v. 7 !/>,, 569. 578. ] 42 POWERS AS TO PURCHASES — [CHAP. VII. are none the less empowered to purchase mines and minerals, because the provisions of the Rail. CI. Cons. Act, 1845, 1 or of the Wat. CI. Act, 2 may apply to them. 3 A railway company purchasing under the Rail. CI. Cons. Act, 1845, are not " entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them, except only such parts thereof as shall be necessary to be dug or carried away or used in the construction of the works, unless the same shall have been expressly purchased ; and all such mines excepting as aforesaid shall be deemed to be excepted out of the con- veyance of such lands, unless they shall have been expressly named therein and conveyed thereby." 4 And the Wat. CI. Act contains provisions substantially identical. 5 And under these provisions such a company may equally purchase minerals worked by surface as those worked by underground workings. 6 And these provisions do not deprive such a company of the power which under the Lands CI. Act they would have of pur- chasing the mines and minerals as a separate tenement. 7 Nor do the words " expressly purchased " confine their power to purchases by agreement only. They are empowered to purchase the mines and minerals as a separate tenement by compulsion. 8 And the mere fact, that they may have already purchased the surface as a separate tenement, does not exhaust their power- They may at any time subsequently, within the period limited for the exercise of their powers, purchase the underlying mines and minerals. For there can be no distinction in principle between a power to make successive vertical purchases of the surface and the underlying strata and a power to make succes- Nou-ithstand- sive horizontal purchases of the surface only. 9 And the power, iiig that tliey 1 8 & 9 Vict. c. 20, s. 77. 7 Errington v. Met. E. Co., 19 Ch. - 10 & 11 Vict. c. 17, ss. 12, 18. J). 559, 569. 3 Birmingham Canal Co. v. Cart- s jj, ? 559^ 5^ 573^ 57^ 573 579 . wright, 11 Ch. D. 421; Hooper v. notwithstanding the dicta to the con- Bourne, 3 Q. B. D. 258 : 5 App. Cas. trary of Lords Cranworth and West- 1, 23, 24 ; Errington v. Met. R. Co., bury in G. W. R. Co. v. Bennett, L. R. 19 Ch. D. 559, 569, 572 ; Mid. R. Co. v. 2 H.^L. 40, 41 ; and of James, L.J., Haunchwood, Sec, Co., 20 ib. 556. in G. W. R. Co. v. Smith, 2 Ch. D « 8 & 9 Vict. c. 20. s. 77. 244. 5 10 & 11 Vict. c. 17, ss. 12, 18. » Errington v. Met. R. Co., it. s.. 559, 6 See Mid. R. Co. r. Haunchwood, 570, 574, 575. &c, Co., v„ .?., 552, 556, 558 ; ante. p. 9. PART A, SECT. 6.] COMPANIES. 113 which such a company possess, 1 of preventing the working of a may also mine upon the terms of compensating the owner, is an additional m T and independent power, and does not restrict their power of purchase. 2 For it may well be more convenient for them to purchase the mines when they are raising their capital ; 3 and they may be able to obtain them at a smaller price than if they waited until the commencement of the mining opera- tions. 4 Moreover, it may well be, that they may require to use the space occupied by the minerals. Those minerals may, for example, be insufficient to afford adequate support to their works ; and their removal and the substitution of artificial props may be necessary for that purpose. Or the space in question may be necessary for some such purpose as the construction of culverts. But, against the will of the land- owner, neither object can be accomplished without acquiring the property in the minerals. 5 And whenever the necessity or Evidence as to propriety of a purchase is contested, the opinion of the officer of propriety of the company, if bond fide, is the only evidence required. And a P urcbase - mere general statement, that the minerals in question are required, is a sufficient expression of opinion. And the onus of proving, that they are wanted for some collateral purpose or that the alleged purpose is manifestly absurd, or that there is in other respects want of bona fides, rests upon the landowner. 6 It is not obligatory on a company purchasing Not !>onnd to surface land under the provisions of the Rail. CI. Act or the Wat. CI. Act to purchase the underlying minerals. 7 Where lands, which a railway company are authorized "Superflu- by their special Act to take, are conveyed to them ; and the conveyance contains an express grant of the mines and minerals thereunder; and the lands are kept by the company, not bond fide for the purposes of the undertaking, but merely for the purpose of working the minerals ; that fact is in itself evidence, that the lands are " superfluous " within the meaning of section 1 See s. 78 of Rail. CI. Act, cited 4 lb., 578. ante, p. 6 n. '" lb.. 572, 574, 575, 576. 2 Errington v. Met. R. Co., 19 Ch. 6 lb., 509, 571, 576, 577. D. 569, 570, 571, 575, 576 : see also 7 Be Huddersfield and Jacomb, 17 post, Chap. XV., Part D. (0) (7). Eq. 476, 489. See the sections of the 3 Errington v. Met. R. Co., v. .«., 570, Acts, ante, pp. 5 n. et leg. 571. 144 POWERS AS TO SALES, PURCHASES, EXCHANGES [dlAr. VIT. 127 of the Lands CI. Cons. Act, 1845. 1 Where, however, the lands are kept under the belief, whether rightly or wrongly, that they will be used at a future time for the purposes of the under- taking, the mere fact that the company in the meantime choose to utilise them by working the minerals thereunder furnishes no such evidence. 2 And if it afterwards turns out, that although the surface is required for the purposes of the undertaking, those purposes could be answered without preserving to the surface the mineral support, there does not appear to be any authority for saying, either that the company are bound to sell the mines apart from the surface, or that in default of such sale the mines vest in the adjacent owners. 3 Indeed it has been laid down, that where in such a case it afterwards turns out, that the surface is superfluous, and vests in the adjoining owners, the mines and minerals will not so vest, but will remain the property of the company. House of Lords. 5 1 See Hooper v. Bourne, 5 App. Blackburn. Where mines, brickworks, Cas. 22, j>f>r Lord Blackburn. and marl pits belonging to charity 2 Hooper v. Bourne, 3 Q. B. D. 288, trustees are compulsorily purchased per Cotton, L.J. ; 5 App. Cas. 22, per by a railway company, and the costs Lord Blackburn. of an inquiry before arbitrators are 3 Hooper v. Bourne, 5 App. Cas. p. taxed and settled as between the par- 12, per Lord Cairns ; p. 24, per Lord ties by one of the taxing masters Blackburn. under s. 1 of 32 & 33 Vict. c. 18, the 4 Hooper v. Bourne, 3 Q. B. D. 258 : Court has no jurisdiction over the see pp. 278, per Bramwell, L.J., 28-4, master's taxation on a motion to re- per Brett, L.J. view : see Sandbach Trustees v. North 5 See 5 App. Cas. 23, 24, per Lord Staff. R. Co., 3 Q. B. D. 1. PAItT A, SECT. 7.] AND ENFRANCHISEMENTS — CORPORATIONS. 145 Sect. 7.— CORPORATIONS. a, Croivn Lands. 1 The Commissioners of Woods, Forests, and Land Revenues 2 Commis- sioners of may sell, 3 exchange, 4 or purchase 5 any mines or quarries ; or sell Woods may any part of them for the purpose of raising money for the or purchase. 30 ' redemption of the land tax charged on any other part. 6 The Application of moneys arising from sales or exchanges, if not immediately wanted, must be invested in the Three per Cents., and the divi- dends applied in the same manner as the income of the Land Revenues is applied. 7 b. Duchy of Cornwall Lands. By the Duchy of Cornwall Man. Act, 1863, 8 the Prince of Prince of Wales, as Duke of Cornwall, may sell or enfranchise 9 or (under sell, enfran- the machinery of the Inclosure Acts 10 ) exchange 11 any mines or chanae^r quarries ; or may purchase any mines, minerals, 12 or quarries, or P urcll ase. rights of mining. 13 All deeds for carrying those purposes into effect must be enrolled in the Duchy office within six months. 14 1 The general law only as to Crown Geo. 4, c. 50, ss. 1, 8). lands is here stated. As to mines of 3 10 Geo. 4, c. 50, s. 34. coal and iron, and quarries of stone, 4 Ss. 42, 43, 44. within the Hundred of St. Briavels, s S. 52. in Gloucestershire, see pod, Chap. XX. : 6 S. 59. and as to mines of lead in parts of 1 Ss. 108, 109, 110, 113. Derbyshire, see post, Chap. XXI. 8 26 & 27 Vict. c. 49. By the ori- 2 At common law the demesne ginal constitution of the Duchy the lands of the Crown were freely dis- possessions thereof were so settled posable by the reigning sovereign (see that they could not be separated or 1 Bl. 286) ; who might, therefore, at alienated : see the preamble of the pleasure, work, or sell, or lease, any Act. mines or quarries beneath or within 9 Ss. 3, 37. them, and take the profits. But since 10 See post, p. 158. the Act 1 Anne, st. I.e. 7, the sove- n S. 41. reign has been disabled from selling 12 " Minerals " in the Act include any part of the Crown lands, or all minerals, whether metallic or not, leasing any part except condition- stone and substrata of every descrip- ally (see s. 5). And under various tion : see s. 37. subsequent Acts the land revenues of 13 S. 7. As to the powers, which the Crown have been placed under the were exerciseable during the minority management of. and are now managed of the Prince, see 7 & 8 Vict. c. 65. by, the Commissioners of Woods, M 26 & 27 Vict. c. 49, ss. 30 ft srq. Forests, and Land Re venues (see 10 146 POWERS AS TO SALES, PURCHASES, ENFRANCHISEMENTS, [CHAP. VII. Application of The moneys arising from sales or exchanges, if not immediately proceeds. W anted (whether for the purpose of purchasing mines, minerals, quarries, or rights of mining, or for any other purpose), must be invested in the Three per Cents., and the dividends applied in the same manner as the income of the Duchy lands is applied. 1 Non-age or I n case the Dnke of Cornwall for the time being should be non-existence. . . , .,... under age, the powers given by the Act may be exercised in his name and on his behalf by the Sovereign for the time being. 3 And when the Duchy is vested in the Crown, the powers of the Act may be exercised by the Sovereign for the time being. 3 c. Church Lands. Eccl. corp. Every Ecclesiastical Corporation (with certain exceptions 4 ) change or may, in general, with the approval of the Ecclesiastical Commis- partition. s i ners for England, and (if such corporation be the incumbent of a benefice) with the consent of the patron, 5 and upon giving three months' notice in writing to the bishop, 6 sell, or convey in exchange, or by way of partition, or otherwise dispose of, mines or quarries belonging to such corporation for such considerations and purposes as the Commissioners may deem reasonable and proper ; and give and receive money by way of equality of exchange or partition. 7 And they may, with the like approval and consent, enter into and vary preliminary contracts. 8 Land Tax— However, by the Land Tax Red. Act, 42 Geo. 3, c. 116, it is provided, that no mines or minerals or seams or veins of coal, metals, or other like profits belonging to any manors or lands, which may be sold by an Ecclesiastical Corporation for the pur- pose of redeeming any land tax, whether opened or unopened, 9 shall pass by the conveyance of such manors or lands, either by express or general words ; but (together with all incidental ease- ments) shall be as effectually excepted and reserved as if expressly excepted and reserved. 10 This Act repealed, as from the 1 Ss. 8, 13, 14 ; 31 & 32 Vict. c. 35. 5 S. 20 ; 21 & 22 Vict. c. 57, s. 1. 2 26 k 27 Vict, c. 49, s. 38. 6 21 & 22 Vict. c. 57, s. 1. 3 S. 39. S. 18 provides for the 7 Ss. 1, 3. settlement by arbitration of disputes 8 S. 4. respecting boundaries or the title to 9 As to open and new mines or any property or to any right of way, quarries, see ante, pp. 22 et seq. or water, or other right. 10 S. 80. 4 See 5 & 6 Vict. e. 108, s. 1. PART A, SECT. 7.] PARTITIONS AND EXCHANGES — CORPORATIONS. 147 24th of June, 1802, the Act 39 Geo. 3, c. 21, which contained similar provisions. 1 Accordingly, where a prebendary, for the purpose of redeeming the land tax on part of the estate of his prebend, sold in 1799 under the powers of the repealed Act a part of the estate, with an exception of the pipe and potter's clay thereunder (except within 20 perches from the houses and inclosures forming part of the land sold), and with certain working powers incident to the exception ; and an Act 2 was subsequently passed, which confirmed invalid sales under the repealed Act ; it was held, that the confirming Act did not so ratify the sale as to give validity to the exception out of the exception. 3 The Acts in question do not, however, affect binding contracts for the sale of lands, which had been entered into before they were passed. 4 All moneys (other than moneys which shall become due and Application payable by way of perpetual annual chief or other rent or rent- charge 5 ) received in respect of any sale, and all moneys received in respect of any exchange or partition, must be paid to the Commissioners, or such moneys or any part thereof may, with the approval of the Commissioners, be permitted to remain out- standing on mortgage, and must, on payment off, be paid to the Commissioners ; and the moneys so paid must be laid out by the Commissioners in the purchase of other lands convenient to be held by the corporation in question ; and the purchased lands, and the lands received on any exchange or partition, must be conveyed so as to vest in the corporation ; and, until the purchase, the moneys must be invested, and the dividends applied in the same manner as the rents of the purchased lands would be applied in case the purchase were actually made. 6 d. Charity Lands. No assurance for charitable uses made after the passing of Charity lands, the Act 24 & 25 Vict. c. 9, is void under the Mortmain Act, 9 Geo. 2, c. 36, by reason of its containing a grant or reservation of any mines or minerals, or easement. 7 1 S. 12. s 28 k 29 Vict. c. 57. 2 57 Geo. 3, c. 100. s. 25. 6 21 & 22 Vict. c. 57, s. 2. 3 Whidborne v. Eccl. Commrs.. 7 ' 24 k 25 Vict. c. 9, s. 1. This ap- Ch. D. 375. plies to voluntary assurances as well 4 Wilson v. Grey, 3 Eq. 117. as to assurances for value. L 2 ] |8 POWERS AS TO PURCHASES AND ENFRANCHISEMENTS [CHAP. VIT. e. Parish Lands — Lands of Local Authorities. Parish lands. Trustees or commissioners of turnpike roads are empowered to contract for the purchase of any land for the purpose of dig- ging materials for the repair or use of the roads ; and at any time afterwards to sell the land so purchased. 1 Where land has been allotted to or otherwise acquired by a parish, and the materials therein have been exhausted, it may be sold under an order of the Local Government Board ; and any right to mines or minerals claimed by the lord of the manor or any other person may be reserved, or the sale may be made subject thereto ; and the proceeds of sale are applicable for the benefit of the parish. 2 Lands of local The Lands CI. Cons. Act, 1845, is incorporated with the authorities. Pub]ic Health Actj 18 7 5 .3 And> although s. 334 of the latter Act provides that " nothing in this Act shall be construed to extend to mines of different descriptions so as to interfere with or obstruct the efficient working of the same, nor to the smelt- ing of ores and minerals, nor to the calcining, puddling, and rolling of iron and other metals, nor to the conversion of pig iron into wrought iron, so as to obstruct or interfere with any of such processes respectively," a local authority is not thereby precluded from purchasing mines ; the obvious application of the section being to nuisances only. 4 PART B.— ENFRANCHISEMENTS, INCLOSURES, PARTITIONS, AND EXCHANGES. Sect. 1.— ENFRANCHISEMENT ACTS. a. Voluntary Commutation and Enfranchisement. Lords and Lords and tenants of manors may, with the consent of the agree on com- Land Commissioners, agree on terms for the commutation 5 or mutation or i 3 Geo. 4, c. 126, s. 100. L..TJ. Denman, J. (see p. 00), eon- 2 39 & 40 Vict. c. 62, ss. 1, 2, 5, C : sidered it to refer to open mines (as cf. 5 & 6 Will. 4, c. 50. s. 48. to which, see ante, pp. 22 et seq.) as 3 See s. 176. opposed to possible future mines. 4 See Up. Dudley, 8 Q. B. D. 86, 96, 5 4 & 5 Vict. c. 35, s. 52. 97. per Brett, Cotton, and Lindley. PART B, SECT. 1.] ENFRANCHISEMENT ACTS. 149 enfranchisement 1 of the manorial rights. The commutation enfranchise- . . . meat. may be made to extend to mines, minerals, and quarries, if ex- pressly agreed upon ; but not otherwise. 2 The agreement for commutation or enfranchisement may be made, wholly or in part, in consideration (amongst other things) of any right to mines or minerals; whether in or under lands parcel of the same manor as the lauds to be commuted or enfranchised, or not. 3 But, if not in or under lands parcel of the same manor, the right to such mines or minerals must, in the opinion of the Commissioners, be convenient to be held with the manor. 4 And, in either case, the right must be subject to the same or the like uses or trusts as the lands to be commuted or enfranchised arc subject to. 5 And the person empowered to obtain the commutation or enfranchisement is accordingly entitled to convey rights to mines and minerals to the person commuting or enfranchising. 6 The Commissioners may hear and determine disputes as to fines or other manorial payments or incidents, but no such determination can directly or indirectly affect any right to mines or minerals. 7 Upon commutation or enfranchisement tenants may grant to Tenants may the lord, in aid of the reservation of his right in mines and grM v e i as t" , ' ° nieuts to lords. minerals, such rights of entry and way, and other easements, in or upon or through their respective lands, as may be requisite for mining purposes. In cases of commutation, it is sufficient to state in the agreement the fact of such grant, and the considera- tion (if any) to be payable therefor. But in cases of enfranchise- ment, the easements must be granted in the deed. 8 b. Compulsory Enfranchisement. Lords or tenants may compel the enfranchisement of manorial lord 01 . 1QT , ... _ , . tenants may rights. In such a case the party requiring the enfranchisement compel enfran- chisements. 1 S. 56. Vict. c. 55, s. 5. 2 S. 82. Lord Romilly, in Kerr v. 7 4 & 5 Vict. c. 35, s. 39. Pawson (25 Beav. 406, 407), in ob- 8 S. 84. This applies to the Duchy serving upon this section, appears to of Cornwall lands : see 11 & 12 Vict, have confused commutation with en- c. 83, s. 5. A power to trustees to franchisement : see Dav. 2, p. 387, n. except mines upon an enfranchise- 3 6 & 7 Vict. c. 23, ss. 1, 3 ; 7 & 8 ment is frequently useful. For the Vict. c. 55, s. 5. form of such a power, see Dav. 4, * 7 k 8 Vict. c. 55, s. 5. p. 428. 6 Ih. 9 15 «fc 16 Vict. c. 51, s. 1 ; 21 & 22 6 6 & 7 Vict. c. 23, s. 3 ; 7 k 8 Vict. c. 94, s. 6. •150 POWERS AS TO ENFRANCHISEMENTS [CHAP. VII. must give notice in writing of his desire to the other party. And, unless the parties can agree about the same, the con- sideration to be paid to the lord must be ascertained by valua- tion; 1 the consideration (in the absence of agreement to the contrary) being, where the enfranchisement is effected at the instance of the tenant, a gross sum of money, and where it is effected at the instance of the lord, an annual rent-charge. 2 After the consideration has been determined on, the Commis- sioners may frame and confirm an award of enfranchisement, But not so as which has the same effect as a deed. 3 No compulsory enfran- rai^hts" 1116 " chisement can affect the rights of any lord or tenant in mines, without con- minerals, or quarries under the lands enfranchised, or any other scut. lands ; or any rights of entry, way, and search, and other ease- ments of any lord or tenant ; or any powers which, but for such enfranchisement, might have been exercised for the purpose of working the mines or quarries or carrying away the minerals therefrom ; unless with the express consent in writing of such lord or tenant. 4 But, without prejudice to these rights and powers, the owners of enfranchisements may disturb and remove the soil for making roads or drains, or erecting buildings or obtaining water. 5 Under Stat, of Merton lord may approve against com- mon of pas- ture. Sect. 2.— IN CLOSURES. a. Generally. Independently of modern legislation, 6 the following is the posi- tion of lords of manors and commoners with respect to the inclo- sure of commons. Under the right of approving given by the Statute of Merton, 7 the lord of a manor may, as against common of pasture, sell or grant leases of or otherwise appropriate the waste or common of the manor. 8 And he may do so equally 1 21 & 22 Vict. c. 94, s. 8. 2 15 & 16 Vict. c. 51, s. 7. 3 21 & 22 Vict. c. 94, s. 10. 4 15 & 16 Vict. c. 51, s. 48. In Kerr v. Pawson, 25 Beav. 407, Lord Romilly appears to have inadvertently stated that there were no means by which the rights of the lord in mines, kc, could be affected. 5 21 & 22 Vict. c. 94, s. 14. 6 See infra, b. For customary and prescriptive rights in respect of wast us or commons, see ante, pp. 91 — 97, 102—104. 7 20 Hen. 3, c. 4. 8 Lascelles v. Gnslow, 2 Q. B. D. 449 et sea. ; Robinson v. Duleep Singh, 11 Ch, D. 831 : sec also Wil- PART B, SECT. 2.] AND INCLOSURES. . 15 [ against the freeholders, 1 as against the copyholders, 2 of the manor. And it is immaterial that the persons entitled to common of pasture are also entitled to some other right of common, such as a right to dig sand ; if they complain only of the interruption of the right of common of pasture. 3 He must, however, leave But must sufficient common for the commoners ; 4 and the onus is upon c C ^ mo S Q fficient him to show that he has done so. 5 But the fact, that for such a period as ten years there has been a sufficiency of common, will frequently be pri/md facie evidence that an actual suffi- ciency has been left. 6 However, the lord of a manor cannot, Cannot, prima prima facie, as against common of turbary or estovers, appro- •f'' r -''.f p ?! ovo priate the mines or quarries, or the earth or gravel, in the commons, waste; such a thing as turf not being annually renewable. 7 And his disability in this respect is irrespective of whether sufficient common for the commoners would be thereby left or not. 8 Such a right would not be authorized by the Statute of Merton, as that only entitles a lord to approve against common of pasture. 9 The disability in question does not, however, exist, unless the land proposed to be approved produces, or is capable of producing, turf or fuel. 10 And in other cases, there may be a But may by special custom in a manor, authorizing a lord to so appropriate. 11 custom - But even, in such a case, the lord must, in exercising his right, leave sufficient common for the commoners ; 13 and leave liams on Commons, 103 et seq. ; Elton minerals ; ante, p. 76. on Commons, 175 et seq. 6 Lascelles v. Onslow, u. s. 1 Which is the more usual case. ' Duberley v. Page, 2 T. R. 391 ; 2 See Williams, 123, citing Shake- Grant v. Gunner, 1 Taunt. 435 ; Arlett spear v. Peppin, 6 T. R. 741 ; Elton, v. Ellis, n. s., 374 ; Lascelles v. Onslow, 209 et seq. u. .v., 433, 450. 3 Fawcett v. Strickland, Com. Rep. 8 Lascelles v. Onslow, u. s. 577 ; Shakespear v. Peppin, u. s. 9 Arlett v. Ellis, u. s., 375 ; A. -CI. 4 Lascelles v.Onslow, 2 Q. B. D. 449 v. Hanmer, 27 L. J. Ch. 841 ; Las- et seq.; Robinson v. Duleep Singh, 11 cellesu Onslow, u.s., 451 ; Williams mi Ch. D. 831. Commons, 137. 5 See Arlett v. Ellis, 7 B. & C. 377 ; u> Peardon v. Underbill, 16 Q. B. Betts v. Thompson, 6 Ch. 732 ; Hall 120. v. Byron, 4 Ch. D. 680 ; Lascelles v. » Arlett v. Ellis, v. s., 370, 371 ; Onslow, v. .v., 450 ; Bell v. Love, 10 Lascelles v. Onslow, v. s., 451. Q. B. D. 559. The onus is upon the a Arlett v. Ellis, w. s., 370,371 ; Las- commoner, where the question arises as celles v. Onslow, v. s., 451. Cf. Badger to the right of the lord to dig for v. Ford, 3 B. & Al. 155. 152 POWERS AS TO [chap. VII. Clarkson v. Woodhouse. Lascelles v. Onslow. Copyholds in waste. Notice of intention to inclose. it in such a state as to make the right of common conveniently exercisable. 1 In an action of trespass against a commoner it was shown to be a custom for the owners of ancient messuages in a manor to have common of turbary in the waste for necessary fuel ; and for the owner of the waste to assign to the owners of the mes- suages reasonable parts of the waste to be held in severalty for digging turves for necessary fuel in respect of such messuages ; and for the owners of such messuages to get turves in such reasonable parts and in no other parts of the waste ; and, when and so often as the turves were completely removed from such reasonable parts, for the owner of the waste to inclose them. This was held to be a good custom. 2 Where a lord in 1751 demised a brick kiln then standing on a waste, with liberty to inclose a piece of land not exceeding half an acre, and to dig earth for the use of the kiln ; and the lease was renewed from time to time ; and meanwhile leases of other parts of the waste were granted for similar purposes ; and during the currency of the lease of 1751 presentments were made by the homage of encroachments on the waste by strangers ; but no objection was made to the granting of the leases ; and the commoners bought bricks at the kilns ; it was held, that there was evidence sufficient to establish, that the lord had by custom the right to approve, so that he left sufficiency of turbary and estovers. 3 And such evidence may be available to an equal degree against the freeholders as against the copy- holders of a manor ; although the freeholders may have obtained from the lord an express grant of common of turbary and estovers. 4 Sand pits or gravel pits in a waste may be copyhold tene- ments distinct from the waste, and demisable by custom. 5 Any person intending to inclose a common, otherwise than under the provisions to be presently mentioned, 6 must give three months' notice, by publication in the local papers, to all persons claiming any right in such common. 7 1 Arlett v. Ellis, 7 B. & C. 377. 2 Clarkson v. Woodhouse, 5 T. R. 412 (n). Its validity appears doubtful: see ante, p. 103. 3 Lascelles v. Onslow, 2 Q. B. D. 433, 451, 452. 4 lb. 452, 453. 5 Doe v. Cook, 5 Esp. 221. 6 See infra, h. ' 39 & tO Vict, c. 5(3. s. 31. PART B, SECT. 2.] IXCLOSURES. J 53 b. Modem Inclosure Acts — Inclosure and Regulation of Commons. 1 (a) Generally — Adjustment of Mights — Local Inquiry. Where land has been inclosed, by encroachment or otherwise, Generally. from land subject to be inclosed, for more than twenty years, and is not declared allottable, inclosure proceedings cannot pre- judice the rights of the Crown or others to such land or the minerals thereunder. 2 A provisional order for the regulation of a common may pro- Adjustment of vide for the " adjustment of rights " in respect of it. 3 And in rl ° " adjustment of rights " the following, amongst other things, are comprised : — As respects rights of common of turbary in, or taking gravel stone from, or otherwise interfering with the soil of, the common, being waste land of a manor, the determination of the persons to exercise, and the mode, places, and times of exercise ; and, on compensation being made to any person aggrieved, the restriction, modification, or abolition of such rights. As respects any common, whether waste land of a manor or not, the determination of the rights and obligations of the lord, severalty owners, or other persons entitled to the soil ; and, on compensation being made to any person aggrieved, the restriction, modification, or abolition of such rights. And as respects any common, whether waste land of a manor or not, the determination of any rights and settlement of any disputes relating to boundaries, rights in the soil, or in the produce of the soil, or otherwise. 4 With respect to applications for a provisional order, it is, Application for provisional amongst other things, necessary, that evidence should be fur- order, nished as to the expediency of the application considered in re- lation to private interests. And such evidence must comprise statements as to the mines, minerals, or valuable strata (if any) under the common in question ; the questions of boundary (if any) concerning such mines, minerals, or strata; and, where the in- 1 As to the Metrop. Commons, see 3 39 & 40 Vict. c. 56, ss. 2, 3. 29 & 30 Vict. c. 122. ' S. 4. - Id & 11 Vict. c. Ill, s. 3. 154; POWERS AS TO [CHAP. VH. terest of any lord of the manor in mineral rights may be affected, the allotment (if any) or compensation agreed on or proposed to Local inquiry, be made to him. 1 The Land Commissioners, if satisfied that a narvmd facie case has been made out, must order a local inquiry ; which is held accordingly, and the result reported. 2 (/3) Draft Provisional Order — Consents — Confirmation. Draft provi- The Commissioners, if satisfied that it is expedient to pro- ceed further in the matter, must then frame a draft provisional order, and, if the application is for the regulation of a common, must therein specify whether the provisions for the "adjustment Statements of rights " are to be put in force. With respect to private and conditions • . , i ,1 ■ . r. ^ i r ±i to be inserted, interests, where the interest ot any lord ot the manor in mineral rights may be affected, there must be inserted in the draft provisional order a statement of the allotment (if any) or other compensation to be allotted or made to him. 3 And there may be inserted, as one of the conditions of the inclosure, any special agreement or matter concerning or affecting the lands to be inclosed. 4 And this provision authorizes a condition, that the right to mines and minerals shall be severed from the soil ; and that the tenement thus created shall remain in the lord, while the soil is allotted to others. 5 There may also be inserted, as one of the conditions of the inclosure, the reserva- tion to the lord of rights of way and other easements over the inclosed lands for working and carrying away mines or minerals, although not under the inclosed lands, and whether within or not within the manor ; and also for working and carrying mines or minerals to be reserved to the lord under the inclosed land. 6 Indeed, where the mines or minerals are reserved to the lord, there must be inserted a statement, whether or not a right to enter for the purpose of working is also to be reserved, and whether or not any compensation is to be made for surface « S. 10. L. R. 9 Q. B. 162. 2 Ss. 10, 11. 4 11 & 12 Vict. c. 99, s. 1. 3 S. 12. Cf. the repealed s. 27 of 5 Musgrave v. Forster, L. R. 6 Q. B. 8 & 9 Vict, c. 118; and the decisioii 590. thereou of Musgrave v. lncl. Comnis., 6 14 & 15 Vict. c. 53, s. 9. PART B, SECT. 2.] IXCLOSURES. 155 damage. 1 And, where there is any mineral property or other rights in relation thereto belonging to persons other than the lord which may be affected, there must be inserted a statement, whether or not a right to enter the land when inclosed for the purpose of working is to be reserved to such other person, and whether or not any compensation is to be made for surface damage ; and there must also be insei'ted such other provisions and reservations as may appear proper. 2 For the purpose of providing a means of compensation for surface damage, the persons interested may agree as to the mode in which compen- sation shall be made ; and such agreement, if allowed by the Commissioners, must be stated to the valuer acting under the Act as part of his instructions, and embodied by him in his report and award. 3 The draft provisional order is then submitted for the consi- Consents, deration of the parties interested. Before it can be certified to be expedient, persons representing two-thirds in value of the interests in the common must consent thereto. 4 If, therefore, in any case an interest includes brick earth, the brick earth must be valued. And if the brick earth forms part of the surface, or lies so close to it as in effect to form part of it, it is immaterial that "minerals" may have been expressly excepted from the operation of the inclosure ; such brick earth not being a mineral. 5 And where the common is land within a manor, to the soil of which the lord is entitled in right of the manor, unless there is more than one person interested, the expediency cannot be certified, unless the person interested consents ; and where there is more than one person interested, the expediency cannot be certified, in case such persons or the majority of them dissent. 6 When the necessary consents have been obtained, the Com- Confirmation, missioners must certify, that it is expedient that the order i See 22 & 23 Vict. c. 43, s. 1. This 3 22 & 23 Vict, c. 43, s. 2 : see provision is not affected by 39 & 40 infra, p. 157. Vict. c. 56, s. 12. As to the meaning * 39 & 40 Vict. c. 56, s. 12. of "surface damage," see Allavvay v. b See Church v. Inch Comms., 11 Wagstaff, 4 H. & N. 681, mentioned C. B. N. S. 664; a deeision under the post, Chap. XV., Part C, Sect. 2, repealed s. 27 of 8 &. 9 Vict. c. 118. c (5), note. See ante, pp. 19, 20. - 22 & 23 Vict. c. 43, s. 1 ; 39 & 40 6 39 & 40 Vict. c. 56, s. 12. Vict. c. 56, s. 12. 156 POWERS AS TO [CHAP. VII. should bo confirmed by Parliament ; and the certificate is then presented to Parliament, and may be confirmed. 1 (y) Valuer — A llotments — Report — A ward. Appointment As soon as conveniently after the passing of any confirming Act, a valuer is appointed to divide set out and allot, or to regulate, the common ; 2 and claims are then heard and determined. 3 His duties and The valuer must allot to the surveyor of highways such part alTotme^ts. of the land proposed to be inclosed as by the instructions given to the valuer shall have been directed to be appropriated for supplying stone, gravel, or other materials for the repairs of roads and ways ; or (in case no such instructions shall have been given) such part (if any) as the valuer shall think fit. 4 And, after making certain other specified allotments ; 5 and after making provision for payment of the expenses by sale of land in case the expenses shall be so directed to be paid ; 6 he must allot to the lord of the manor so much of the land as he shall consider equal to such part of the residue as shall be proportioned to his right or interest, according to the directions of the pro- visional order, in lieu of his right in the soil, and exclusive of any other allotments which may be made to him in respect of any other rights. 7 And in case the provisional order declares, that his right has been estimated exclusively of his right in the mines or substrata, the valuer must, on the request of the lord, reserve to the lord such rights and easements for searching for working and carrying away such mines or substrata as shall not have been included in such estimate, subject to such provi- sions for compensation for surface damage as the valuer, with the approval of the Commissioners, may think reasonable. 8 And the residue of the land is allotted to the persons interested, in 1 39 & 40 Vict. c. 56, s. 12. 4 H. L. 377) ; it was made a question 2 8 & 9 Vict. c. 118, s. 33 ; 39 &. 40 whether or not Commissioners under Vict. c. 56, ss. 13, 32. an Inclosure Act had power to sell, 3 8 & 9 Vict. c. 118, ss. 34, 35, 46, freed from the lord's right to mines, 47, 48, 55, 56, 57, 60. lands sold for the purpose of defraying 4 8 & 9 Vict. c. 118, ss. 34. 72. the expenses of the Act. 6 Ss. 73, 74, 75. 1 S. 76. 6 In Wakefield v. Buccleuch (4 Eq. 8 lb. As to surface damage, see »H3) ; Buccleuch v. Wakefield (L. E. ante, p. 155, n. '. TART D, SECT. 2.] IXCLOSURES. 157 shares proportionate to the value of their interests as claimed and allowed. 1 And in case the provisional order declares, as one of the conditions of the inclosure, the reservation to the lord of easements over the inclosed land for mining purposes, 3 the valuer must reserve to the lord such liberty to construct railways, waggon ways, and roads, and such rights of way and other easements over the lands to be inclosed for working the mines in question, as the valuer, with the approval of the Com- missioners, may think reasonable, and as shall not be inconsis- tent with the provisional order ; subject to such provision for compensation for surface damage as shall be thought reasonable. 3 And in every case in which part of the land is converted into and used as a regulated pasture, and the residue divided and allotted in severalty, the valuer may, having regard to the rights of the lord, as ascertained and declared by the provisional order, and with the consent of the. lord and a majority in value of the other persons interested, direct that the rights of the lord in the mines and substrata under the regulated pasture shall be reserved to the lord, and that the mines and substrata under the residue shall become the property of the owners of the respective allotments, and that the allotments be adjusted accordingly. 4 And, subject to such rights and interests, the property in the soil of regulated pastures vests in the owners of the rights of pasture therein in proportion to their shares as tenants in common. 5 After the completion of the allotment or regulation, a report Report, is drawn up : the parties interested are, if necessary, heard ; and, subject thereto, the report is approved by the Commissioners. 6 The valuer must then, under the direction of the Commis- Award. sioners, draw up an award, and sign it ; describing therein the allotments and regulation ; and declaring whether all or any and which of the mines and substrata shall or shall not have been included in the estimate of the right of the lord in the soil in respect of which any allotment shall have been made to him ; 1 S. 77. « 8 & 9 Vict. c. 118, s. 97. 2 See ante, p. 151. 5 S. 116. 3 14 & 15 Vict. c. 53, s. 9. As to « Ss. 102, 103 ; 39 & 40 Vict. c. 56, surface damage, see ante, p. 155, n. '. s. 13. 158 POWERS AS TO PARTITIONS AND EXCHANGES. [CHAP. VII. and such award must be confirmed by the Commissioners, and is then binding and conclusive. 1 c. Modem Inclosure Acts — Partitions and Exchanges. Partitions and Partitions and exchanges may be made by the valuer acting exchanges. un( J er the Inclosure Acts ; 2 and the power to effect them extends to lands not subject to be inclosed. 3 And where an exchange is made of lands not subject to be inclosed, or of lands as to which no inclosure proceedings are pending, the Commissioners may except or reserve out of such exchange the property or right to the mines or minerals under the land given by both or either of the parties, together with auxiliary rights and ease- ments, and (whether the mines or minerals shall or shall not be reserved) such rights of way and other easements as the parties may have agreed on. 4 1 8 & 9 Vict. c. 118, ss. 104, 105 ; 39 face was disputed, but upheld. & 40 Vict. c. 56, s. 13. In Rowbotham - 8 & 9 Vict. c. 118, ss. 90, 91, 92 ; r. Wilson (8 H. L. Cas. 361, 362, 363, 20 & 21 Vict. c. 31 ; see antr, p. 156. 366), the power of Commissioners 3 8 & 9 Vict. c. 118, s. 147 ; 11 & 12 under an Inclosure Act to separate by Vict. c. 99, s. 13. their award the mines from the sur- 4 10 & 11 Vict. c. Ill, s. 4. CHAPTER VIII. POWERS WITH RESPECT TO LEASES AND LICENSES. Sect. 1.— TENANT IN FEE. (a) Tenant in Fee Simple. Every ordinary tenant in fee simple may, of course, grant May lease at what leases he pleases of his mines or quarries, whether they p are opened or unopened. 1 Where an infant is entitled to lands in fee, and it appears to Infant may the Court to be for his benefit, that a lease thereof should be 4 ; c . 65, made for the working of mines, the infant or his guardian in his ^.^"'j £ st . it , 3 name may, by the direction of the Court, under the Act 1 Will. 4, or Settled Land Act. c. 65, s. 17, make such lease for such term or terms of years, and subject to such rents and covenants, as the Court shall direct. 2 And the lease may be made of new as well as of open mines. 3 And the authority of the Court to give its sanction to such a lease is not confined to cases where the infant is an ordinary tenant in fee simple. It extends to cases where the infant is entitled in possession subject to an executory devise over, if the devisee consents ; 4 or is entitled in remainder, subject to a tenancy by the curtesy, if the tenant consents ; 5 or is entitled merely as a co-owner with other persons. 6 The lands of an infant tenant in fee may also be demised under the powers of the Settled Estates Act, 1877, 7 as extended by section 41 of the Con v. Act, 1 As to open and new mines or quar- ante, pp. 22 et seq, ries, see ante, pp. 22 et seq. * Be Clark, 1 Ch. 292 : cf. Be 2 The Act also applies to the case Letchford, 2 Ch. D. 719 ; and see of an infant being entitled to any 44 & 45 Vict. c. 41. s. 41. leasehold land for an absolute interest : 5 Spencer"s Trusts, 37 L. J. Ch. 18. see s. 17. 6 See Bentley a. Landor, *ct. 743, 3 There is no restriction in the where the form of the order is given, authority given to the Court. As to ' 40 & 41 Vict. c. 18. open and new mines oi quarries, see mines or quarries. 100 POWERS AS TO LEASES AND [cilAP. VHT. 1881. 1 And where one-sixth of an estate containing coals was settled, and the other five-sixths were vested in infants in fee, a lease was approved under the joint authority of the Act 1 Will. 4, c. Go, s. 17, and the Settled Estates Act, 1877. 2 And, under the Settled Land Act, 1882, 3 an infant tenant in fee is in the same position as a tenant for life; and the powers of the Act may be exercised on his behalf by the trustees of the settlement, or, if there are none, then under the direction of the Court. 4 Lunatic may, Where a lunatic is entitled to land in fee, and it appears to be Re*. 6 Act" f° r his benefit that any mine or quarry already opened 5 therein both as to should be worked, the committee may, in the name and on open J behalf of the lunatic, under the order of the Lord Chancellor, make such leases thereof, either with or without any land convenient to be held therewith, and with or without the surface, to such person, for such term or terms, and subject to such rents and conditions, as the Lord Chancellor shall order. 6 ami new And, where a lunatic is entitled to land in fee, and it appears either to be necessary for the maintenance of the lunatic and the members of his immediate family for whom provision is directed to be made, or to be expedient in a due course of management, that any unopened 5 mine or quarry in, upon, or under the land, should be opened and worked, leases thereof may in like manner be granted. 7 The Court, in sanctioning a lease, will not allow a premium or fine to be taken. 8 And what 1 44 & 45 Vict. c. 41. " Kent." an infant was only entitled in remain- under the Act, includes yearly or der; however beneficial such a lease other rent, toll, duty, royalty, or other might have been : Wood v. Patteson, reservation by the acre, the ton, or 10 Beav. 541. Such a lease may, how- otherwise. And a "mining lease," ever, be granted under the Settled under the Act, is a lease for mining Estates Act, 1877 : see infra, Sect. 2, b. purposes ; that is, the searching for, 3 45 & 46 Vict. c. 38. winning, working, getting, making 4 Ss. 59, 60. merchantable, carrying away, or dis- 5 As to open and new mines or quar- posing of, mines and minerals, or pur- ries, see ante, pp. 22 et seq. poses connected therewith, and in- 6 The Lun. Reg. Act, 1853, 16 & 17 eludes a grant or license for mining Vict. c. 70, s. 130 : see the correspond- purposes. S. 2, sub-ss. 9, 11. Cf. the ing Irish Act, 34 & 35 Vict. c. 22, definitions in the Settled Land Act, ss. 79, 81. infra, Sect. 2, c. 7 16 & 17 Vict. c. 70, s. 131 : see - See Be Edwards, Set. 1492. The the corresponding Irish Act, 34 & 35 Court would not, under the Act Vict. c. 22, ss. 80, 81. 1 Will. 4, c. 65, s. 17, have authorized » g ee R e Smith, 10 Ch. 86. the grant of a lease of mines, in which SECT. 1.] LICENSES — TENANT IN FEE. 161 purports to have been a lease under the order of the Court may, if anything in the nature of a premium or fine has been taken, be treated as a sale; 1 and the whole of the consideration may, on the death of the lunatic, belong to his heir-at-law as real estate accordingly. 2 The produce of new 3 mines or quarries, when necessary for the maintenance of the lunatic and his family, must be so applied ; and, in such case the surplus, and in every other case, all the produce, must be carried to a separate account, and applied as mentioned in the Act ; and, upon the lunatic's death, the moneys remaining on the credit of such account are, as between his real and personal representa- tives, considered as real estate* The committee may, under And may , /. . , . accept 8ur» the order of the Lord Chancellor, accept surrenders ot existing renders anJ leases and make new leases ; 5 and all fines and moneys received renew leases - upon renewals must be applied for the benefit of the lunatic; and, on his death, are, so far as they are not so applied, con- sidered as real estate. 6 (0) Tenant in Tail. A tenant in tail of mines or quarries has, under the Settled May lease Land Act, 1882, 7 the same powers of leasing them as a tenant for life. 8 The provisions of 1 Will. 4, c. 65, already stated, 9 enabling leases to be granted of mines beneath lands to which an infant is entitled in fee simple, apply where an infant is entitled in tail. 10 An infant tenant in tail may also obtain power to grant leases of mines or quarries under the Settled Estates Act, 1877, 11 or under the Settled Land Act, 1882. 12 The provisions already stated, 13 enabling leases to be granted of mines or quarries beneath or within lands to which a lunatic is entitled in fee simple, apply where a lunatic is entitled in tail. 14 > Under 16 & 17 Vict, c. 70, ss. 116, 7 45 & 46 Vict. c. 38. 124 : see ante, p. 128. 8 s - 58 - 2 Re Smith, 10 Ch. 79, cited ante, 9 Ante, p. 159. p. 128. ,0 See s - 17 - 3 As to open and new mines or quar- » See ss. 23, 49. See Boyd's Estate, ries, see ante, pp. 22 et seq. 8 Ir. Rep. Eq. 76 (a decision under the * 16 & 17 Vict. c. 70, s. 132 : see the repealed Act, 19 & 20 Vict, c. 120). For corresp. Irish Act, 34 & 35 Vict, c. 22, the form of the order, see pp. 77, 78. 8 _ 82> « See ss. 58, 59. 60. 5 16 & 17 Vict, c. 70, s. 134. 13 Ante, p. 160. 6 S. 135 : see the corresp. Irish Act. M See Lion. Reg. Act. 1853. 16 & 17 34 k 35 Vict, c. 22. ss. 84. 85. Vict. c. 70. ss. 130. 1 31, 132 ; 18 & 19 ,i N52 POWERS AS TO LEASES AND [chap. VIII. Independently of legislation may not, prima facie, lease. Sect. 2.— TENANT FOR LIFE. a. Generally. Independently of legislation, a tenant for life cannot, prima facie, grant leases of mines or quarries, so as' to bind his suc- cessor. But if a tenant for life, impeachable of waste, leases new 1 mines, he will not, although the lease be improper, be allowed to restrain the lessee from working ; as he cannot be permitted to disaffirm his own lease. 2 And on similar principles, an agreement by a tenant for life, impeachable of waste, to grant a lease of new : mines, may, to the extent of his interest, be specifically enforced against him. 3 b. Settled Estates Act, 1877. 4 May under However, under the authority of the Settled Estates Act, Settled Estates 18 ^ the Q onvt may au thorize the grant of mining leases; or leases of wayleaves, waterleaves, 01 other rights or easements over or affecting any settled estates ; for terms of years not exceeding forty years. 5 And any such lease may be for such term of years as the Court may direct, where the Court shall be satisfied, that it is the usual custom of the district and beneficial to the inheritance to grant such lease for a longer term than forty years. 6 And, as the lease may be made whether it in- volves waste or not, 7 it may be made of unopened as well as of opened 1 mines. 8 But every such lease must be made to take effect in possession at or within one year next after the making thereof. 9 And in every such lease must be reserved the best rent or reservation in the nature of rent, either uniform or not, But must comply with statutory re- quirements. Vict. c. 13, s. 1 : see the corresp. Irish Act, 34 & 35 Vict. c. 22, ss. 79, 80, 81, 82. 1 As to open and new mines, see a nte, pp. 22 et seq. 2 Wentworth v. Turner, 3 Ves. 3. 3 See Cleaton v. Gower, Finch, 164. i 40 & 41 Vict. c. 18. * S. 4. Leave to grant leases is ob- tainable at the instance of the same persons as in the case of sales {ante. p. 129, n. 2 ; s. 23). 6 S. 4. Cf. the corresponding pro- vision of the Settled Land Act, post, p. 166. 7 S. 4. 8 There is nothing in the Act to prevent the grant of a lease of mines to which an infant is entitled in re- mainder. The Court had no such power under 1 Will. 4, c. 65 : see Wood v. Patteson, 10 Beav. 541. See 44 & 45 Vict, c. 41, s. 41. 9 40 & 41 Vict. c. 18, s. 4. SECT. 2.] LICENSES TENANT FOR LIFE. ] 63 that can be reasonably obtained, to be made payable half-yearly or oftener, without taking any fine or other benefit in the nature of a fine. But a peppercorn rent or any smaller rent than the rent to be ultimately made payable may, if the Court shall think fit so to direct, be made payable during all or any part of the first five years of the term of the lease. 1 And every such lease must be by deed ; and the lessee must execute a counterpart; and the lease must contain a condition for re-entry on non-payment of the rent for a period of 28 days after it becomes due, or for some less period to be specified in that behalf. 2 And every such lease must contain such other cove- nants and conditions as the Court shall deem expedient. 3 As an illustration of such other covenants and conditions, the Court, in approving of an agreement for a lease of land, with liberty to dig and get brick-earth, has required the lessee to bind himself not to occasion a nuisance to neighbouring owners, and to indemnify the lessors against proceedings in respect of any nuisance. 4 Parts of settled estates may be leased as well as Incidental the whole. And the power to authorize leases may be exercised from time to time. 5 And leases may be surrendered and renewed. 6 And the power to authorize leases extends to preliminary con- tracts. 7 And the power may be exercised either by approving of particular leases ; or, with the consent of all parties, by vesting general leasing powers in trustees. 8 And, where one sixth of an estate containing coals was settled, and the other five sixths were vested in infants in fee, a lease was approved under the joint authority of the Settled Estates Act, 1877, and the Act 1 Will. 4, c. 65, s. 17. 9 As incident to the power to grant a mining lease conferred by the Act, power will be granted to lease so much land as may be necessary for the convenient and 1 77;. It seems doubtful whether 4 S. 26. the Act authorizes a lease reserving a 5 S. 6. render in kind : see Daw 4, p. 415 (n). fi S. 7. Cf . the definition of rent in the Settled ' S. 8. Land Act, 1882, post, p. 164 : see also 8 Ss. 10—13 : see Hutchinson's post, p. 165. Trusts, 14 W. E. 473. See Set. 1487, - S. 4. 1489, for the form of a vesting power. 3 S. 5. For an order approving of 9 See Re Edwards, Set. 1492. As to agreements for mining leases, with the latter Act, see ante, p. 159. For directions as to their settlement by the form of the order, which will be the judge, and as to the application of made, see Set. 1489. 1490. the rents, see Bolton Estes.. Set. 1491. M 2 \u POWERS AS TO LEASES AND [CHAP. VIII. rents effective working of the minerals ; l and power may be granted to grant way-leaves over any part of the settled estates. 3 Application of Where the Court authorizes a lease of any " earth, stone, coal, or mineral," one fourth part, or three fourth parts, of the rent or payment reserved, according as the person for the time being entitled to the receipt of the rent is, or is not, by reason of his estate or of any declaration in the settlement in question, entitled to work such earth, stone, coal, or mineral, for his own benefit, must be from time to time set aside ; 3 and the moneys so set aside must be paid and applied in the same way 4 as moneys to be received on any sale effected under the authority of the Act. 5 And in every lease sufficient provision must be made to insure such application by the appointment of trustees or otherwise as the Court may deem expedient. 6 Salt obtained by the evaporation of brine-water pumped up from a depth of 150 feet is not "earth, stone, coal, or mineral;" so as to come within these provisions. 7 Moneys set aside, and in the hands of trustees for investment in the purchase of other lands, will pass with the surface, and not with the mines of which the lease had been granted, where the surface and the mines have, under a power of appointment, of which the tenant for life of both was the donee, been separately devised. 8 c. Settled Land Ad, 1882. 9 Meanings of In the Settled Land Act, 1882, the following expressions have "Sting" 1 or include the following meanings :— " Rent " includes yearly or SttiedLand otlier rent > and to11 ' dllt y ; r0 y al ty> 0r otheT reservation > h Y tne Act. 1 Reveley's Estes., 11 W. R. 714. paid out of the one-fourth part of the 2 Wallace's Estes., W. N. 18(59, p. 66. rents set aside : Lorat v. Leeds, 11 3 S. 4. Cf. the corresponding pro- L. T. N. S. 442. vision of the Settled Land Act, post, 6 S. 4. For the form of the order, p. 167, see Set. 1490. 4 Ss. 34. 35, 36. 7 See Dudley's Settled Estates, 26 5 See ante, p. 129. An order made S. J. 359, cited in Clerke's Settled under the repealed Act, 19 & 20 Vict. Land Act, p. 53. c. 120, having been amended under 8 Re Scarth, 10 Ch. D. 499 ; decided the repealed Act, 27 & 28 Vict, c. 45, under s. 23 of the repealed Act, 19 & by striking out a condition as to 20 Vict. c. 120. settling a lease in chambers, the costs 9 45 & 46 Vict. c. 38. of the application were directed to be SECT. 2.] LICENSES TENANT FOB LIFE. 1(J5 acre or the ton or otherwise; and, in relation to "rent," " payment " includes delivery. And a " mining lease " is a lease for any "mining purposes" or purposes connected there- with, and includes a grant or license for any " mining purposes." l The meanings of " mines and minerals " and " mining purposes" have been alread}' stated.- A tenant for life may lease the settled land or any part of it, Tenant for or any easement, right, or privilege of any kind, over or in lieTnder relation to it, for mining purposes ; for any term not exceeding Act sixty years. 3 And, as the lease may be made, whether it involves waste or not, 3 it may be made of unopened as well as of opened mines. 4 And a mining lease may be made either of land, with or without an exception or reservation of all or any of the " mines and minerals " therein ; or of any " mines and minerals ;" and in any such case with or without a grant or reservation of powers of work- ing, wayleaves, or rights of way, rights of water and drainage, and other powers, easements, rights, and privileges for or connected with " mining purposes," in relation to the settled land or any part of it, or any other land. 5 But the lease must be by deed, and be But must com- made to take effect in possession not later than twelve months ^tutory re- after its date ; and must reserve the best rent that can reasonably r i llirem ents. be obtained ; and must contain a covenant by the lessee for payment, and a condition of re-entry on non-payment within a time specified not exceeding thirty days ; and a counterpart must be executed by the lessee. 6 The rent may be made to be Incidental ascertainable by or to vary according to the acreage worked, or P °* the quantity gotten or dealt with, in or from the settled land or any other land, or by or according to any facilities given in that behalf. 7 And a minimum rent may be made payable, with or without an average clause. 8 And a lease may be made partly in consideration of the lessee having executed, or his agreeing to 1 S. 2. Cf. the definitions in the withstanding the definition of " rent *' Conv. Act. 1881, ante, p. 160, n. l . (ante, p. 164), the Act, having regard - Ante, p. 130. to its provisions as to the application 3 S. 6 - of rents (post, \>. 167), authorizes a 4 As to open ami new mines, see lease reserving a render in kind (see ante, pp. 22 et seq. Clerke on the Act, -ID). But it is sub- 5 S. 17. mitted that this doubt is unfounded. 6 S. 7. 8 As to an average clause, see post, 1 Mr. Clerke doubts, whether, not- Chap. XI.. Sect. 2. a (£). 106 POWERS AS TO LEASES [CHAP. VIII. execute, on the land leased, an improvement authorized by the Act, 1 for or in connection with " mining purposes." 2 And where it is shown to the Court with respect to the district in question, either that it is the custom for land therein to be leased for "mining purposes" for a longer term or on other conditions than those above mentioned, or in perpetuity ; or that it is difficult to make such leases except for a longer term or on other conditions, or except in perpetuity ; the Court may authorize generally the tenant for life, and each of his successors in title beino- or having the powers of a tenant for life, to make from time to time leases of the settled land or parts thereof for any term or in perpetuity at any rents, secured by condition of re-entry or otherwise as in the order expressed, or may authorize him to make any such lease in any particular case. 3 And a tenant for life may accept, with or without consideration, a surrender of any lease, in respect of the whole land leased, or any part of it, with or without an exception of all or any of the "mines and minerals;" or in respect of "mines and minerals," or any of them ; and on a surrender in respect of part only of the land or " mines and minerals," the rent may be apportioned. And the tenant for life may make a new or other lease, or new or other leases in lots, of the surrendered land or "mines and minerals" or any part thereof; and such new or other lease may comprise additional land or " mines and minerals," and may re- serve any apportioned or other rent. 4 And a tenant for life has corresponding powers of executing deeds, 5 and of entering into preliminary contracts. 6 The powers of the Act may be exercised on behalf of an infant tenant for life by the trustees of the settle- ment, or, if there are none, then under the direction of the Court. 7 1 Ante, p. 132. prove a lease already prepared, or 2 S. 9. See Clerke, 49, 50. may direct that the lease shall con- 3 S. 10. See also s. 12. Cf. the tain specified conditions, or such con- corresponding provision of the Settled ditions as may be approved at cham- Estates Act, ante, p. 1B2. Where, bers without directing the lease to be under the Settled Land Act, the settled by the judge : Settled Land Court gives a general authority, the Act, Rules, 1882, r. 9. order must not, unless for some special 4 S. 13. reason, direct any particular lease to 5 S. 20. be settled or approved by the judge : 6 S. 31. and where the Court gives a particular 7 S. 60. See Re Newcastle's Es- anthority, the order may either ap- tates, W. N. 1883, p. 99, where the SECT. 3.] AND LICENSES — TRUSTEES. 167 Whether the "mines or minerals" leased are already opened or Application of in work or not, 1 there must, unless a contrary intention is ex- ^"ajjitai pressed in the settlement, be from time to time set aside, as lj capital money arising under the Act, three fourth parts of the rent where the tenant for life is impeachable for waste, and otherwise one fourth part, and the residue of the rent must go as rents and profits. 2 The mode of investing or applying capital money has been already stated. 3 The position of a tenant for life as a trustee, and the power of Oikex pro- . . visions. appointing trustees, have been already stated. 1 The provisions requiring the tenant for life to give notice in the case of a sale, exchange, or partition, 5 apply also in the case of a lease. 6 Sect. 3.-TRUSTEES. a. Generally. Trustees, as such, have no power to grant a mining lease on May not, the mere ground that it is beneficial for the parties interested; i ea se. such a lease operating pro tanto as an abstraction of the inhe- powers of the settlement and the powers of the Act were in conflict. See also Be Wells. \Y. X. 1883, p. Ill ; a case of a partnership colliery. 1 As to open and new mines, see ante, pp. 22 et seq. 2 S. 11. In all cases, therefore, whether a tenant for life is impeach- able for waste or not. some portion of the rent must be set aside ; and lie Newcastle's Estates, as noted in W. X. 1883, p. 99, is not to be understood as an authority to the contrary. It seems clear, that it was the intention to introduce a provision corresponding with that of the Settled Estates Act, 1877 {ante, p. 164) ; and that the words " tenant for life impeachable for waste" would be construed as having a similar meaning to the words " not entitled to work for his own benefit" in the Settled Estates Act, 1877. If, therefore, a person is tenant for life of land containing open mines, and a lease is granted under the Settled Land Act, one-fourth part only of the rent need be set aside, although the tenant for life is not such " without impeachment of waste." See Wolst. & T., p. 23. Mr. Clerke, however (p. 53), takes a different view. Where rent is set aside, the lessee must, it seems, pay it to the trustees or into Court. The trustees should be parties to the lease, and their portion of the rent made payable to them. See Wolst. & T., p. 23. See. 1m, \ Clerke. p. 53. 3 Artie, p. 131. 4 Ante, p. 132. 5 Ante, p. 133. 6 S. 45. As to procedure, see ss. 4(i et seq., and the Settled Land Act, Rules, 1882. Other specified limited owners have the powers of a tenant for life : s. 58. As to married women and lunatics, see ss. 61, 62. As to express powers, notwithstanding these Acts, see infra, Sect. 3, h. 168 POWERS AS TO LEASES [chap. vih. Lease of two estates. ritance. And it is immaterial, that they may have been directed to pay the rents of the property in question to a tenant for life. And, independently of statute, they cannot obtain the requisite power from the Court. 1 And a trust to sell mines or quarries does not authorize leases to be granted. 2 However, in all proper cases, recourse may be had to the powers given by the Settled Estates Act, 1877, 3 or the Settled Land Act, 1882. 4 Where two contiguous mining estates belong to trustees upon trust for distinct beneficiaries, and the trustees obtain power to grant mining leases under the Settled Estates Act, an agreement by them to grant one lease of both estates, reserving the rents and royalties as if there were only one estate, and enabling the minerals to be worked by means of a shaft on one of the estates, is ultra vires. 5 And whether an agreement by trustees to grant one lease of two estates can, under any circum- stances, be intra vires, is questionable. 6 Sometimes desirable to give trustees express powers. b. Express Powers, (a) Generally. It will sometimes be desirable to supplement the provisions of the Settled Estates Act, 1877, 3 and the Settled Land Act, 1882, 4 by creating an express power to grant leases of mines or quarries. However, a direction in marriage articles, that a settlement shall contain " all usual powers," will probably, if the articles include mines, authorize the insertion of a power to lease them. 7 And, where a settlement of personal property con- tained a covenant to settle all future acquired property on the same trusts, and subject to the same powers, or as near thereto as the nature and tenure of the property would admit of ; and mines, which had never been effectually worked, but of which the prior owner had granted leases, were subsequently acquired ; the insertion of a power to grant leases of such mines was held authorized. 8 Where a settlement contains an express power of leasing mines or quarries, the power is frequently, if not gene- 1 Wood v. Patteson, 10 Beav. 541. 2 See Jervoise v. Clarke, 6 Madd. 9ii. 3 Ante, p. 162. * Ante, p. 164. 5 Tolson v. Sheard, 5 Ch. D. 19. B lb. "' Hill v. Hill, 6 Sim. 145. * Scott v. Steward, 27 Beav. 367. SECT. 3.] AND LICENSES — TRUSTEES. 169 rally, given to the tenant for life, if siti juris. And the analogy of the Settled Land Act, 1882, 1 lends, to say the least, consider- able countenance to the practice. However, having regard to the fact, that a lease of mineral property is in very few respects different in substance from a sale, 2 it would seem to be the more correct practice to give the power of leasing, as a power of sale is given, 3 to the trustees; 4 arming them, if necessary, with the incidental power to revoke existing, and to appoint new, uses. (/3) Incidental Provisions 5 — Construction of Powers. A power to lease "land" includes a power to lease all Parcels should i • , i ■ i ., fl TT . , be defined in mines and quarries within or under it. b However, in general, crea ti ng in creating a power to grant mining leases care should be P ower to taken to define accurately the mines in respect of which the power may be exercised. Where an estate, " with the mines, minerals, and quarries " thereunder, was settled ; and power was given to the trustees of the settlement to demise " all or any part" of the " said hereditaments, lands, and other premises," so as none of the lessees " be made dispunishable of waste ;" and the power contained no specific mention of mines ; it was held, that the trustees had no power to grant leases of the unopened, but only of the opened, 7 mines. 8 However, where an estate, "with the mines and minerals," was settled; and power was given to the trustees to demise the "said hereditaments and premises, or any part thereof," and the "coal, minerals, and stone within or under the same, together with or separately therefrom, with the appurtenances ;" it was held, that this autho- 1 Ante, p. 165. 3 Ante, p. 136. 2 See Attersoll v. Stevens, 1 Taunt. 4 See Vivian v. Jegon, L. R. 3 H. L. 201, per Lord Mansfield; Jegon v. 290, per Lord Cairns. Vivian, L. R. 1 C. P. 34, per Erie, C.J. ; 5 For forms, see Dav. 3, p. 1007etseq., Eadon v. Jeffcock, L. R. 7 Exch. 394, 1107 et seq., 1212. per Bramwell, B. ; Vivian v. Jegon, 6 See Campbell v. Leach, Amb. 747; L. R. 3 H. L. 290 ; Gowan v. Christie, Clegg v. Rowland, 2 Eq. 165. 166. L. R. 2 Sc. & Div. 284, per Lord ' As to open and new mines, see Cairns ; Coltness Co. v. Black, 6 App. ante, pp. 22 et seq. Cas. 335, per Lord Blackburn. See 8 Clegg v. Rowland, 2 Eq. 165, 166. also Smith v. G. W. R. Co.. 3 App. Cf. Campbell v. Leach, Amb. 740. Cf. Cas. 178, 179, 180, 185, 186, 191. See also Thursby v. Thursby, 19 Eq. 395, also the Scotch case of Weir v. Dur- 414. See ante. p. 53. ham. 8 Sess. Cas. (Ser. 3) 725. 170 POWERS AS TO LEASES [CHAP. VIII. rized a lease of the coal and minerals situated under any part whatever of the premises ; and that the power was not, there- fore, restricted to mines open at the date of the settlement, but extended also to unopened 1 mines. And a clause in the settle- ment, providing that lessees should not be " dispunishable for waste," was held repugnant to the other parts of the settlement, and was rejected in construing it. 2 Where an estate contained mines both opened and unopened; 1 and the donee of a leasing power leased both the opened and the unopened mines, but reserved separate rents on each mine ; it was held, that, as he had not reserved a gross sum for all the mines, the power, although not well exercised as to the unopened, was well exer- cised as to the opened, mines. 3 Liberties. A mere power to lease lands does not authorize a lease of wayleaves or other liberties. 4 In creating a power to grant liberties care should be taken to define them accurately. Diffi- culties arising from the neglect of this precaution may, no doubt, sometimes be solved by reference to the liberties usual in the district in question. 5 But, generally, a solution will not be easy. In Morris v. Rhydydefed Co., 6 a settlement reserved a power to lease collieries and coal mines, " together with all such powers, authorities, accommodations, liberties, and privileges as shall be necessary, or are usually contained in leases of collieries or mines in the county, place, or neighbourhood where the col- lieries or mines " are " situate, for seeking, winning, working, drawing, taking, and carrying away " the coals ; and provided, that the lessee should not, except in the cases expressly provided for, be made dispunishable for waste by any express words. In a lease granted under the power the lessee was authorized to build all such workmen's cottages, &c, as should be " bond fide necessary or proper " for carrying out the works ; and also to dig and use on any part of the lands stones, brick earth, and other materials for any building authorized to be made. The 1 As to open and new mines, see of the land which contains them. See ante, pp. 22 ct seq. Doe v. Lock, 2 A. & E. 705. 2 Daly v. Beckett, 24 Beav. Hi. 4 See Ricketts v. Bell, 1 De G. & S. 3 Campbell v. Leach, Amb. 740. The 335. like care should be taken to use accu- 5 See Scott v. Stewart, 27 Beav. 367, rate language in creating a power to 368. except mines or quarries from a lease 6 3 H. & N. 473, 885. SECT. 3.] AND LICENSES— TRUSTEES. 17 L lessee built several cottages for workmen. It was found by a jury, that the power to build cottages in places convenient to the works of the mine was a necessary and usual power in mining leases. It was held, that the lease was valid. 1 So, difficulties may arise, unless the time when a leasing power Time when may be first exercised is defined. In LeigJt v. Balcarres 2 a diffi- c i se a.bie. culty arose as to whether a leasing power under a will could be exercised during the life of the first tenant for life. The testator devised the residue of his real estate to the use of trustees, in trust to pay the rents to A. for life, but impeachable for waste for " digging or getting any part of any coal or cannel opened or to be opened" otherwise than under the pow r er thereinafter given ; remainder to the use of B. for life, impeachable for waste in like manner; remainder to the trustees to support contingent re- mainders ; remainder to the use of C. and his sons in tail male ; with other remainders over. Then followed a power to "the person or persons (except A.)," who, under the previous limitations, should, for the time being, " be seised of, or entitled to, the actual freehold," or " the annual rents," to grant leases of the mines in possession. It was held, that the trustees had power to grant leases during the life of A. In like manner, difficulties may arise, unless the period, for Duration. which the lease may be granted, is defined. No doubt, where a testator settles lands upon A. for life without impeachment of waste, with remainder to his first and other sons in tail male, with remainders over ; and he empowers the tenants for life under his will to grant mining leases "for such term- or numbers of years" as to them "shall seem reasonable and proper ;" he authorizes a lease for 99 years. 3 And it may be, that in some cases a gift of a power to lease mines simpliciter, without saying for how long, may authorize a lease for 99 years. 1 It is, however, clear, that a gift of a power to lease mines, following a gift of a life estate in real 1 Cf. Jegon v. Vivian, L. R. 1 C. P. 3 See Taylor v. Mostyn, 5] L. J. Ch. 9, 36, 37 : reversed on another point 696 : affirmed W. N. 1883, p. 87. 2 ib. 422 ; Vivian v. Jegon, ib. 3 H. L. 4 See Vivian v. Jegon, I.. R. 3 H. L. 285. For the form of a power with 293, 294, per Lord Cranworth : cf. respect to liberties, see Dav. 3, pp. Jegon v. Vivian. L. R. 1 C. P. 27, 28, 1007 et seq., 1107 et seq. per Erie, C. J. - fi C. B. 847. 172 POWERS AS TO LEASES [CHAP. VHI. properly of which they form a part, although expressed in general terms, will not of necessity imply a power in the tenant for life to make a lease exceeding the term of his own life. Thus, in Vivian v. Jegon 1 a testator devised his estates to his daughter for her life, without impeachment of waste, and then to her issue male and female, and, in default of such issue, over. The will gave the daughter power to " work or contract for, lease, or set out to be worked and wrought," the mines, &c, under the estates, but provided that the "neat proceeds and profits arising therefrom " should be applied by the daughter with the consent of his trustees in the purchase of other estates, of which the daughter was to receive the rents for her life. The will also provided, that the trustees, with the consent of the daughter or her successor, might exchange the estates. The daughter granted a lease for 60 years. It was contended, that the daughter had power to lease the mines, not merely for her own life, but for any reasonable period that might be found necessary in order to make a beneficial practical lease. But it was held, that the daughter was restricted to making leases for her own life only. 3 It has been held, that, where a tenant for life, who was the donee of a leasing power for 21 years, granted a lease for 26 years, and the lessee expended moneys on the faith of it, he was as the purchaser entitled to have the defective execution aided in equity. 3 Rents. A power to lease at the best and most approved yearly rent has been held to have been well exercised by reserving an ore rent ; ore being analogous to money, and a reservation of it going, on the death of the tenant for life, to the remainderman accordingly. 4 A power to a tenant for life, without impeach- ment of waste, to grant mining leases for such terms, " and under and subject to such rents and reservations and agreements," as to him "shall seem reasonable and proper," has been held to have been well exercised by granting a lease at a peppercorn rent by way of mortgage. 5 1 L. R. 3. H. L. 285. open : see p. 517. 2 Affirming Jegon v. Vivian, L. R. 2 3 Campbell v. Leach, Amb. 740. C. P. 422, which reversed S. C. L. R. 1 * lb. C. P. 9. In Ernest v. Vivian, 33 L. J. s Taylor r. Mostyn, 51 L.J. Ch. 696 : Ch. 513, this point was expressly left affirmed W. N. 1883, p. 87. SECT. 4.] AM) LICENSES — CORPORATIONS. 17:3 Where a settlement or will contains a power to graut leases Application of mines or quarries, it should also contain express provi- sions as to the mode of dealing with the proceeds. Having regard to the fact, that a lease of mines or quarries is, in most respects, substantially the same as a sale, 1 it may otherwise be doubtful, whether the intention is, that the proceeds shall be treated as capital, or as income. In most cases the fairest course for all the beneficiaries will be to provide a similar destination for the proceeds of a lease to that provided for the proceeds of a lease under the Settled Land Act, 1882. 2 Sect. 4.— CORPORATIONS. a. Crown Lands. 3 The Commissioners of Woods, Forests, and Land Revenues i Comms. of • /-a • • m Woods may may, with the consent of the Commissioners of the 1 reasury, lease, lease any mines or quarries (other than mines of gold or silver) beneath or within any of the Crown lands for any term not exceeding sixty-three years from the time of making the lease. 5 There may be reserved either an annual rent in money, or a rent partly in money and partly in kind, or a rent or duty upon the quantity or value of the produce. And, with the approval of the Commissioners of the Treasury, a fine may be taken. 7 And, generally, the lease may be upon such conditions, and may contain such covenants and stipulations, as the Commissioners of the Treasury may approve. 8 And, as the lessee may be made dispunishable for waste, 9 a lease may be granted as well of new mines or quarries as of those already opened. 10 And licenses as well as leases may be granted. 11 1 Ante, p. 169. previous state of the law, 10 Geo. 4, c. 2 Ante, p. 167. 50, ss. 28 et seq. Fines may also be 3 The general law only as to Crown taken on granting a license for the lands is here stated. As to quarries making of an underlease, assignment within the Hundred of St. Briavels in or other disposition : 29 & 30 Vict. c. Gloucestershire, see post, Chap. XX. 62, s. 3. 4 See ante, p. 145, n. 2 . 8 36 & 37 Vict, c. 36, s. 4. 5 10 Geo. 4, c. 50, s. 22 : Crown 9 10 Geo. 4, c. 50, s. 27. Lands Act, 1873, 36 k 37 Vict. c. 36, s. 4. 10 As to open and new mines or quar- 6 10 Geo. 4, c. 50, s. 33. ries, see ante, pp. 22 et seq. 1 The Crown Lands Act, 1866, 29 & » 29 & 30 Vict, c. 62. s. 3. As to 30 Vict. c. 62, s. 3. See, as to the licenses, see post. Chap. XII. 174 POWERS AS TO LEASES [CHAI\ VIII. Application of rents. One moiety of the net annual income received by the Com- missioners of Woods in respect of mining leases must be carried to the account of the capital of the land revenue of the Crown, and the other moiety to the account of the income of such land revenue. 1 And provisions exist for the purpose of ascertaining the amount of the net income. 2 Prince of Wales may lease. Tywarnhaile and Tywarn- haile Tyas. b. Duchy of Cormvall Lands. By the Duchy of Cornwall Man. Act, 1863, 3 the Prince of "Wales, as Duke of Cornwall, may demise any mines or quarries, whether opened 4 or not (with power to the grantee to work, get, carry away, and dispose of the minerals, and to do all acts necessary or expedient therefor), for any term not exceeding thirty-one years in possession, but not in reversion ; so that upon every such demise there be reserved a reasonable amount of rent, royalty, dues, toll, or dish ; and so that no fine be taken, 5 except in certain specified cases. 6 And he may grant a new lease on the surrender of any existing lease ; 7 and he may accept a surrender of any lease, and grant separate leases. 8 All leases must be enrolled in the Duchy office within six months. 9 The lord of the manor of Tywarnhaile Tyas in Cornwall and the Duke of Cornwall are empowered, by agreement in writing, enrolled in the Duchy office, to provide for and regulate the granting, demising, and working of all tin mines, tin ore, tin dues, and tin toll under the demesne and conventionary lands of the assessional manor of Tywarnhaile in the same county, and under the lands within the manor of Tywarnhaile Tyas; and the collecting, recovering, and dividing the profits and advantages accruing therefrom ; and the doing of all incidental matters. 10 1 S. 2. 2 lb. 3 26 & 27 Vict, c. 49. 4 As to open and new mines or quar- ries, see ante, pp. 22 et seq. 5 S. 21. 6 S. 23. 7 S. 26. 8 S. 27. 9 Ss. 30 et seq. For provisions for the case of their being no duke or of his being under age, see ante, p. 146. 10 11 & 12 Vict. c. 83, s. 2. As to the assessional manors, see ante, p. 38. SECT. 4.] \XI> LICENSES — CORPORATIONS. 175 c. Greenwich Hospital Lands. The Admiralty l are empowered by the Greenwich Hospital Admiralty may Act, I860, 2 to grant mining leases for any term not exceeding forty-two years. And the lessee may be made dispunishable for waste. But every such lease must take effect in possession, and not in reversion ; and the best yearly rent must be re- served ; and no fine must be taken ; and every lease must con- tain a condition of re-entry on non-payment ; and the lessee must execute a counterpart, and must thereby covenant for pay- ment of the reserved rent. 3 Rent may be reserved by way of toll, dut} r , royalty, or reservation, by the acre, the ton, or otherwise. 4 d. Church Lands. (a) Generall//. An archbishop or bishop, being disabled from opening or Archbishop or working new mines or quarries, 5 cannot, of course, of his own will, grant leases of the right to do so. But an archbishop or bishop, to whom lands have been assigned as an endowment under the Act 23 & 24 Vict. c. 124, G may, with the approval of the Estates Committee of the Ecclesiastical Commissioners, from time to time grant mining leases of any such lands for such periods, for such considerations, upon such terms, and in such manner, as such committee under the circumstances of each case may think fit. But the committee may require that any portion of the rent reserved shall be payable to the Ecclesiastical Commissioners. 7 At common law, a Dean and Chapter had com- Dean and plete power to grant leases of all mines and quarries beneath or p within their lands, and to apply the rents reserved to their own benefit. 8 But since the passing of the restraining Acts, 9 it has always been held, that a Dean and Chapter cannot grant leases 1 By the Greenwich Hospital Act, 4 lb. 1865, all lands, which at the com- 5 See ante, p. 77. mencement of the Act. were vested in 6 See ante, pp. 77, 78. the Commissioners of Greenwich Hos- 7 S. 8. pital, were transferred to, and became 8 See Marlborough v. St. John. 5 De vested in, the Admiralty : see s. 22. G. &. Sm. 179, 180 : see ante. p. 78. 2 28 & 29 Vict. c. 89. 9 Ante, p. 78. 3 S. 29. 1 ^76 POWERS AS TO LEASES [CHAP. VIIT. of their lands, dispunishable of waste ; such leases being deemed to be within the equity of the Acts. 1 And, since the Act 31 & 32 Vict. c. 114, 2 a Dean and Chapter are expressly dis- Parson. abled from granting leases dispunishable of waste. 3 A parson, being disabled from opening or working new mines or quarries, 4 cannot, of course, of his own will, grant leases of the right to do so. And his power to grant such leases, even with the consent of his patron or patrons, 5 and ordinary, is in general, since the passing of the restraining Acts, 4 as doubtful as his right to open new mines or quarries with the like consent. 6 (j3) Ecclesiastical Leasing Acts — Farming and Building Leases. Eccl. corps. Under the provisions of the Eccl. Leas. Act, 1842, 7 as ex- tended by the Eccl. Leas. Act, 1858, 8 every ecclesiastical cor- poration, aggregate or sole (with certain exceptions), 9 may, demise any mines or quarries belonging to such corporation, in consideration or partly in consideration of premiums or not, or for such other considerations, and for such term or terms, and under and subject to such covenants stipulations conditions and agreements on the part of the lessee, and generally in such manner, as the Ecclesiastical Commissioners shall think proper and advisable ; and may grant incidental rights of opening and working, and of working any adjacent mine by way of outstroke 10 or other underground communication ; and may also grant such portion of land belonging to such corporation, and all such rights and liberties of way and passage, wayleaves and water- leaves, and other rights, easements, and facilities for the opening and working of all such mines or quarries, and leading and carrying away the produce thereof, or otherwise incident to mining operations, as shall be deemed expedient. 11 And exist- 1 See Worcester's Case, 6 Rep. 37 a. 8 21 k 22 Vict. c. 57. The Eccl. 2 See ante, p. 78. Leas. Acts do not apply to the Isle of 3 S. 9. As to leases by Prebendaries, Man : 37 & 38 Vict. c. 96 ; 38 & 39 Rectors, &c, see 24 & 25 Vict. c. 105 ; Vict. c. 66 (Stat. Law Rev.) : see 25 & 26 Vict. c. 52. post, Chap. XXL, Sect. 2 (o). 4 See ante, p. 79. 9 See 5 & 6 Vict. c. 108, ss. 1, 6. s See Doe v. Collinge, 7 C. B. 939. ln See post, Chap. XL, Sect. 4 (a). 6 See ante, p. 80. H 5 & 6 Vict. c. 108, ss. 4, 6 ; 21 & 22 ' 5 & 6 Vict. c. 108. Vict. c. 57. s. 1. SECT. 4.] AXD LICENSES — CORPORATIONS. ] 7 ing leases may be surrendered and renewed. 1 And contracts and licenses to search for mines, and other powers preliminary to or consequent upon contracts, may be entered into, granted, and varied in such manner and for such considerations as to the Ecclesiastical Commissioners may appear desirable. 2 How- But must ever, leases cannot be granted, if the convenient enjoyment statutory *re- of any palace of an archbishop or bishop would be prejudiced. 3 i mrement s. And every lease, contract, licence, or power, must be granted or entered into with the approval of the Ecclesiastical Commis- sioners ; and (if made by the incumbent of a benefice) with the consent of the patron ; and (if made of copyhold mines or quarries, or of watercourses, ways, or easements, in, upon, over, or under, copyhold lands, where the copyhold or customary tenant is not authorized to make leases for the term of years intended to be created by such lease) with the consent of the lord. 4 In the case of any lease granted under the Act of 1842 Application of (unless it be granted subsequently to the Act of 1858 by any rector, vicar, or incumbent with cure of souls 5 ) such portion of the improved value accruing thereunder, as by order in council shall be determined, not being more than three-fourths nor less than a moiety of such improved value, must be paid to the Ecclesiastical Commissioners, and be subject to the provisions relating to moneys payable to them ; and the remainder of such improved value is deemed to be an improvement within the meaning of the provisions relating to the incomes of arch- bishops and bishops, deans and canons, archdeacons and incum- bents of benefices. 6 In the case of airy lease granted under the Act of 1858, all moneys received in respect thereof must be applied in the same manner as moneys received in respect of sales. 7 1 5 & 6 Vict. c. 108, ss. 5, 16. tion of which, see s. 12), to sell, en- 2 21 & 22 Vict. c. 57, s. -1. franchise, or exchange their lands, 3 5 & 6 Vict. c. 108, s. 9. and to lay out the moneys to arise 4 S. 20 : see also the following see-- therefrom in the purchase of other tions. lands, were empowered, with the ap- 5 See 21 & 22 Vict. c. 57, s. 10. proval of the Church Estates Com- 6 5 & 6 Vict. c. 108, s. 14. missioners, from time to time to grant 7 See s. 2 ; ante, p. 147. Ecclesias- mining leases of such other lands for tical corporations, empowered under such considerations, upon such terms. 14 & 1.") Vict. c. 104 (as to the dura- and in such manner, as £he Commis- ns POWERS AS TO LEASES [chap. VIII. Farming and buildiDg leases. By the Act empowering incumbents to grant farming and building leases 1 it is provided, that, in every case where the rio-ht is exercised, a clause shall be inserted excepting the mines and minerals. But consistently with that the lessee may be authorized to take brick earth, stone, lime, and other materials for erections and repairs. 2 And ecclesiastical corporations, aggregate or sole, empowered under the Eccl. Leas. Act, 1842, to grant building leases, may, as incident thereto, give liberty to the lessee to dig, take, carry away, and dispose of such earth, clay, sand, loam, or gravel, as it shall be found convenient to remove for building or repairing purposes. 3 Certain uni- versities and colleges may lease. e. University and College Lands. The Universities of Oxford, Cambridge, and Durham, and every College therein, and the Colleges of Winchester and Eton, may, under the Universities and College Estates Act, 1858, 4 lease any mines or quarries in any lands belonging to such University or College ; either with or without any messuages, buildings, or lands convenient to be held or occupied therewith ; and either with or without the surface of the lands containing sioners. under the circumstancesof each case, might think fit. And the Commis- sioners might have required that any portion of the rent received should be laid out in the purchase of other lands for the benefit of the demising cor- poration, or otherwise applied as therein mentioned. See s. 9. i 5 & 6 Vict. c. 27. * S. 1. 3 5 & 6 Vict. c. 108, s. 1. Special provisions exist for regulating the re- lations between the Ecclesiastical Com- missioners, or ecclesiastical corpora- tions, and their former tenants of mines or minerals, who are entitled to have their leases renewed. By the Act 23 & 24 Vict. c. 124, it is provided (s. 22), that the Ecclesiastical Com- missioners, or any ecclesiastical cor- poration, aggregate or sole, shall, in granting to a lessee, whether for years or for lives, an extended term, and in fixing the terms of such grant^ have regard to the value of the interest of the lessee under any lease theretofore ordinarily renewable on payment of a fine, and shall, as a rule, in com- puting such value, estimate and in- clude an extension of the existing unexpired term to the 1 1th of October, 1884, at the accustomed rate of fine ; and, in the case of any lease for life, which, according to the expectancy of human life, would not determine until after the 1 1 th October, 1884, shall have regard to the actual value of the in- terest of the lessee. And, in case the lessee requires an extended term to be granted to him, and differences arise between him and the lessors in respect thereof, such differences are (ss. 23, 41) determinable by arbitration under the provisions of the Com. Law Proc. Act, 1854. 4 21 k 22 Vict, c. 44. SECT, i J AND LICENSES CORPORATION'S. ]79 such mines or quarries ; and whether the same shall or shall not have been previously opened or worked j 1 for any term not ex- ceeding 60 years, to take effect in possession, and not in rever- sion or by way of future interest ; with full power to work and raise the minerals, and to work any adjacent mine by way of outstroke 2 or other underground communication, and to do all things necessary for winning, working, getting, cleansing, and smelting the minerals, and manufacturing and carrying them away, or otherwise incident to mining operations. However, leases cannot be granted, if the convenient enjoyment of any house or building forming part of or attached to any College, or the offices or gardens thereto belonging, would be prejudiced. 3 And in But must ... . n comply with every lease there must be reserved the best rent, m money, or tolls, statutory re- duties, royalties, and reservations, by the acre, the ton, or other- 3 uirements - wise, that can be reasonably obtained, without taking any fine or premium : and the lessee must covenant to pay the rent, and all taxes, charges, rates, assessments, and impositions affecting the demised lands : and the lease must contain a proviso for re- entry on non-payment of the rent, or (except as to such covenants as the University or College may think fit to except) non-per- formance of the covenants : and the lessee must not be autho- rized to commit waste except for the purposes aforesaid : and must execute a counterpart : and must enter into such other covenants as the University or College shall deem expedient ; due regard being had to the custom of the country or district in question. 4 Wayleaves and waterleaves may be granted for Incidental a like term. 5 And leases may be surrendered and renewed. 6 And licenses may be granted to dig gravel, sand, earth, loam, or clay suitable for making bricks or tiles out of any part of the lands belonging to the demising University or College for such considerations as may be considered reasonable." And, in grant- ing building and repairing leases, the lessee may be authorized to dig, take, and carry away and dispose of, such earth, clay, sand, or gravel, as it shall be found convenient to remove. 8 1 As to open and new mines or quar- s S. 19. ries, see ante, pp. 22, et seq. 6 S. 22. 2 See post, Chap. XL, Sect. 4 (a). 7 S. 15. 3 S. 26. 8 S. 11. * S. 20 N 2 J SO POWERS AS TO LEASES AXD [(HAP. Vllf. Application of rents. One equal third part of the net rents and reservations received in respect of any mining lease, and of the net moneys received in respect of any license, must be applied as part of the ordinary income of the University or College. And the remainder must be applied either in the purchase of lands for the benefit of the University or College ; or in the erection of new or improvement of existing buildings ; or in the improvement of lands belonging to such University or College ; or in the purchase of easements in respect of adjoining lands : and, in the meantime, it must be invested, and the income applied as part of the ordinary income of the University or College. 1 Trustees of charities may lease. f. Charity Lands. The trustees of any charity lands may, on satisfying the Charity Commissioners, that the letting of any part of the charity lands on leases for working any mine, or that the digging for or raising of stone, clay, gravel, or other minerals, would be for the benefit of the charity, and on obtaining their authority, and although such leases or acts may not be authorized or permitted by the trust, grant such leases or do such acts. 2 Materials for roads. g. Materials for Roads. Trustees or commissioners of turnpike roads are empowered to contract for the demise from any person of any land for the purpose of digging materials for the repair or use of the roads. 3 Sect. 5.— LANDS IN IRELAND. Mines in Ireland may be leased. Every archbishop, bishop, dean, dean and chapter, archdeacon, prebendary, and other dignitary ecclesiastical, parson, rector, 1 Ss. 15, 21. 2 See Char. Trustr, Act, 1853, 16 & 17 Vict. c. 137, ss. 21, 26 ; Char. Trusts Amend. Act, 1855, 18 & 19 Vict. c. 124, ss. 38, 39. See also Chaj. Trusts Amend. Act, 1855, s. 29. As to the acting trustees of a charity, see Char. Trusts Amend. Act, 1855. s. 16. 3 3 Geo. 4, c. 126, s. 100. As to purchases, see ante, p. 148. Where an allotment is made to a surveyor of highways under the Inch Act, 8 & 9 Vict. c. 118, and no direction is made as to the ownership of the grass and herbage, the surveyor must let the allotment, reserving the right to get and take away the stone, gravel, and other materials. S. 72 : see ante. p. 1 56. SECT." 5.] LICENSES LANDS IN IRELAND. J g [ vicar, body politic and corporate, college, cathedral, or collegiate church, and hospital; and every trustee for charitable or other purposes or for any feme covert or infant of freehold or certain other specified estates; and every tenant for life with an im- mediate remainder to his first and every other son in tail male ; and every tenant in dower or curtesy with the consent of the immediate reversioner or remainderman for an estate of inherit- ance, or (in case of the nonage, idiotcy, or lunacy of the latter) with the consent of the guardian or committee with the appro- bation of the Lord Chancellor ; may grant leases not exceeding forty-one years of mines and minerals in Ireland within his oi- their lands. And such leases may comprise certain speci- fied quantities of land contiguous to the mines and minerals for the convenient erection thereon of workmen's houses and smelting houses and other necessary buildings. 1 But every But statutory such lease must commence in possession without any fine : and re ?g?^ ientB the best rent, whether in money or kind, must be reserved : and P lied witn - every such lease must contain a condition for re-entry on non- payment ; and the lessee must execute a counterpart.- And Incidental existing leases may be surrendered and re-granted. 3 Where mines have been excepted from a grant of lands in Ireland, the person entitled to the rent, in fee simple, fee farm, fee tail, or for life, with immediate remainder to his own issue, has, in respect of the mines, similar leasing powers. 4 1 46 Geo. 3, c. 71, s. 1 ; 11 & 12 3 11 & 12 Vict. c. 13. s. 3. Vict. c. 13. bs. 1, 2; and the Acts 4 46 Geo. 3, c. 71, s. 1 ; 11 & 12 therein mentioned. Vict. c. 13, s. 1 ; 23 & 24 Vict. c. 154. 2 11 & 12 Vict. c. 13, s. 1 ; 38 & 39 s. 32. Vict. c. 66 (Stat. Law Rev.). CHAPTER IX. CONTRACTS. Sect. 1.— GENERALLY- -STATUTE OF FRAUDS— AMBIGUITY OR UNCERTAINTY. Contract re- specting land includes, primd facie, everything beneath. Exceptions. Right of preemption. (a) Generally. A contract to sell or grant a lease of land will generally in- clude the entire solum from the surface down to the centre of the earth. It will generally, therefore, include the mines, quarries, and minerals beneath or within it. 1 However, where a railway company or a waterworks company give notice to take lands under the Kail. CI. Cons. Act, 1845, 2 or the Wat. CI. Act, 3 they should, if they wish to take the mines and minerals thereunder, expressly include them in their notice. They will not have the right to do so in the absence of express mention. 4 In like manner, a statutory commutation of manorial rights may, if expressly agreed upon, but not otherwise, be made to extend to mines, minerals, and quarries. 5 And no compulsory enfranchisement can affect the rights of any lord or tenant in mines, minerals or quarries, or incidental liberties, unless with the express consent in writing of such lord or tenant. 6 A covenant giving an unlimited right of preemption of mines is obnoxious to the rule against perpetuities. 7 Subject to this a covenant giving a right of preemption runs with the land ; so as to be capable of enforcement by the assigns of the covenantee against the devisees of the covenantor. 8 1 Williamson v. Wootton, 3 Dr. 213 ; Kerr v. Pawson, 25 Beav. 406. 2 See 8 & 9 Vict. c. 20, s. 77. s See 10 & 11 Vict, c. 17, ss. 12, 18. 4 Met. R. Co. and Cotton's Trustees, 45 L. T. 103 ; Errington v. Met. R. Co., 19 Ch. D. 560, 573, 574 ; ante, p. 142. 5 Ante, p. 149. 6 Ante, p. 150. ' See L. & S. W. R. Co. v. Gomm, 20 Ch. D. 562 ; overruling, on this point, Birmingham Canal Co. v. Cart- wright, 11 Ch. D. 421. 8 Birmingham Canal Co. v. Cart- SECT. I.] GENERALLY STATUTE OF FRAUDS. [83 It is sometimes a question, whether a mining instrument Construction is a contract for a lease or an actual lease. Tn Jones v- ]' Reynolds. 1 the defendant wrote to the plaintiff: — "I shall be happy to take a lease of your iron ore at N., and I will engage to work the several veins, &c, the term to be four years from the 24th of June next, .... the relative proportions of the iron ores in weight to be worked to- gether to be ascertained by a competent person." The plaintiff replied : — " I agi*ee to the terms contained in your letter, and shall be ready to grant a lease conformable thereto, &c, when you require me." It was held, that an agreement for a lease had been entered into. In Doe v. Powell, 2 the lessor agreed to " let aud grant a lease " at a rent " to commence in a year from the time a pit is sunk through the four-foot coal," with power to work the said minerals, and to deposit rubbish and make a wharf ; and the lessee agreed " to commence working a pit before the 24th of June next ; " and the lessor engaged that '' he had not incumbered ;" and the lease was to "contain the usual covenants, &c, as entered into by " the lessor's brother ; and the lessor engaged " to sign a lease upon the said terms as soon as it can be prepared." No possession had been given at the time, nor was any stipulated for. It was held, that an agreement for a lease had been entered into. ()8) Statute of Frauds. A contract by the sole owner of a mine or quarry for the sale Mine or quarrj thereof, or of any interest therein, or for the grant of a lease thereof, without more, must, to be enforceable, be in writing signed by the party to be charged, pursuant to the fourth sec- tion of the Statute of Frauds. 3 And a verbal contract between the owner of a mine and another person, that the mine shall be demised upon royalties, and the royalties divided between them, has been held to be, in substance, a contract for the sale and wright, 11 Ch. D. 421. As to damages ' 1 Q. B. 506. for breach of such a covenant, see - 8 Scott X. R. 687 ; 7 M. & Ch. 770, 778. 4 See Pollard r. Clayton, 1 K. & J. 471. 5 See Forster r. Hale. 5 Ves. 314. 6 See Boyce v. Green, Batty 608 ; Watson v. Spratley, 10 Exch. 222. ' See Caddick v. Skidmore, u.s., 52, 56. 8 Burdon v. Barkus, 4 De G. F. & J. 47. 9 Watson v. Spratley. v. t. SECT. 1.] AMBIGUITY OB UNCERTAINTY. L85 part of the stock in trade, and then to divide those profits between the members in proportion to their shares. In the latter cases, therefore, the members are not entitled either to land, or to any interest in land, within the fourth section of the Statute of Frauds. 1 And the same considerations apply, where, instead of mines or quarries being vested in trustees for a parti- cular association for the benefit of the undertaking carried on by it, they are vested in the association itself for the benefit of the undertaking. 3 Where mines or quarries are vested in trustees for a partnership or company in trust for the under- taking generally, a contract to sell shares therein is not a con- tract for the sale of " goods, wares, and merchandize " within the 17th section of the Statute of Frauds. 3 Accordingly, such a contract, not being within either the 4th or the 17th section of the statute, is good, although entered into by parol. 1 A contract for the sale of minerals already severed is, of Minerals course, a contract for the sale of " goods, wares, or merchandize " within the 17th section of the Statute of Frauds. 5 So also in the case of minerals not already severed ; G conversion into chattels by severance being contemplated. (y) Ambiguity or Uncertainty. If it is intended, that a mine or quarry shall belong separately Ambiguity. to one or more members of a partnership, instead of being the common property of the firm ; or shall become the common pro- perty of the firm, instead of belonging separately to one or more of the members ; the contract to that effect should be clear and unambiguous. In Hills v. Parker, 7 where the lessee of certain salt works had taken in a partner to work them, it was held, that the acts and conduct of the parties had constituted 1 See Watson v. Spratley, 10 Bxch. 4 Watson v. Spratley, >/. s. 222 ; Hayter v. Tucker, 4 K. & J. 241). 5 Hickman v. Haynes, L. R. 10 < '. P. The fact of the concerns having been 601. cost-book mines is immaterial. See fi See Dart 203, citing Coulton v. also Powell v. Jessopp, 18 C. B. 336 ; Ambler. 13 M. & W. £03 ; a decision Walker v. Bartlett. ib., 845, 859. upon a navigation Act. 2 See Watson v. Spratley. u. s. 7 7 Jur. N. S. 833 : reversing Parker :t Watson v. Spratley, u, s. : see also v. Hills. ."> ib., 809. Pickering v. Appleby, 1 Com. 353. 180 CONTRACTS — AMBIGUITY [CHAP. IX. the saltworks a partnership asset. In Burdon v. Barkus, 1 on the other hand, it was held, under all the circumstances of the case, that a seam of coal, which had, prior to the formation of a partnership, been leased to one of the partners, did not form part of the partnership property, but remained the separate property of the lessee. However, the other partner, who, under the im- pression that the lease was a partnership asset, had concurred in a large expenditure in the erection of works for winning the seam, was upon the dissolution held entitled to a fair allowance. 2 Uncertainty. It has been decided, that an agreement to lease two seams of coal known as the two-feet coal and the three-feet coal, " lying under land to be hereafter defined in the Bank-end Estate," meant, " lying under land in the Bank-end Estate, the bounda- ries of which were to be thereafter defined ; " and was not there- fore so indefinite as to prevent its being enforced. 3 However, where an agreement was entered into for a lease of the "iron- stone lying under the lands of Sir H. Trafford, Bart., situate at Patricroft," Patricroft not being a place with defined territorial limits ; and the lessee stipulated for liberty to try the mine for a year without any liability for dead rent, and for liberty to abandon it at the end of that time ; and the lessee expended a considerable sum in trying the mine in exercise of his liberty ; it was held (1), that the agreement was too uncertain to entitle the lessee to enforce it ; and (2) that he was not entitled to any damages for his outlay. 4 And where an agreement was entered into to lease the minerals under certain land to the west of a fault supposed to run through the land in the direction of a line drawn on a plan referred to in the agreement ; and the quantity of land was described as " supposed to be 83 acres or thereabouts ;" and a similar agreement was entered into to lease the minerals to the east to a second lessee, " supposed to be 98 acres or there- abouts ;" and each agreement provided for the payment of a dead rent ; and the fault was afterwards found to run, so as to leave on the west eight acres only ; it was held, that the second agreement could not have been enforced by the second lessee. 1 3 Giff. 412 ; 4 De G. F. & J. 42. 140. 2 See Set. 1200. 4 Lancaster v. De Trafford, 31 L. J. 3 See Haywood v. Cope, 25 Beav. Ch. 554. SECT. 2.] OS UNCERTAINTY— TITLE. Is? It was considered (1), that the case was not one of mere falm demonstratio, but that the intention was to demise the minerals bounded by the fault, if fault there were in the direction marked on the plan. It was also considered (2) that the agreement could not, having regard to the provisions as to dead rent, be con- sidered a chance agreement as to the amount of minerals to be comprised in the lease ; and that, although the words " or there- abouts " might possibly have covered a trifling deviation in the line of the fault, they could not cover a deviation to the extent in question. 1 And where an agreement was entered into for the sale of land ; with clauses, that in the event of there being any coals or ironstone thereunder, a royalty of 6d. per ton should be paid thereon, and that any mines required to be left by a certain railway company should be paid for, as if gotten, out of the money to be received for them from the company ; it was held, that it was too uncertain to be enforceable. 2 And, of course, an agreement to lease " coals, &C.," can seldom be capable of enforcement. 3 Sect. 2.— TITLE— NON-EXISTENCE OF MINE OR QUARRY. (a) Abstract of Title. A purchaser of a mine or quarry ; or of any share or interest Abstract of therein, which is, or includes, a share or interest in the land itself; is entitled to a regular abstract of title. 4 A purchaser of a share in a mining concern, which does not include any interest in the land itself, is not entitled to an absti'act ; but only to such evidence of the constitution of the concern, and of the nature of the title under which the land is worked, as will show, that the subject-matter of the purchase is what it professes to be, and that the proposed form of transfer will give him a valid title to the share. 5 1 Davis v. Shepherd, 1 Ch, 110,415 " search for and work mines or ft seq. minerals. &c.," has been held not to - Williamson v. Wootton, :> Dr. 210. render the agreement void for un- 3 See Price v. Griffith, 1 De G. M. & certainty : sec Parker v. Taswell, 2 G. 80. A reservation in an agreement De G. & J. 5o9. for a lease of "all customary rights ' Curling r. Flight, 2 Ph. 613, 617. and reservations."' such as liberty to 5 lb. 188 CONTRACTS TITLE NON-EXISTENCE [CHAP. IX. If mines or quarries ex- hausted, or third party has right to work, vendor cannot enforce, and purchaser can enforce with compensation. Exceptions. (/3) Contract dealing with Land generally. A contract to sell land will generally, as has been already seen, 1 include, not merely the surface, but the mines, quarries, and minerals beneath it. If, therefore, the mines or quarries have been exhausted or partly exhausted by working ; or their owner- ship is in a third party ; or there is a right in a third party to enter and work them ; the vendor cannot in general enforce the contract ; and, on the other hand, the purchaser can in general enforce it with compensation. 2 And in the case of a third party having the owner- ship, or the right to work, the position of the purchaser is not affected, however long the third party may have refrained from exercising, and however little he may show his intention to exercise, his rights. 3 Nor in the case of a third party having the ownership, is the position of the purchaser affected, although the third party may be disentitled to work without the surface owner's consent. 4 Nor is it affected, however difficult it may be to estimate the compensation, if, with the assistance of experts, a probable estimate is possible. 5 Nor is it affected by the fact, that no proof has been given of the actual existence of the mines or quarries, if no proof has been given of their non- existence. 6 But it will be affected by proof of their actual non- 1 Ante, p. 182. 2 Seaman v. Vawdrey, 16 Ves. 390 ; Barton v. Downes, Fl. & K. 505 ; Martin r. Cotter, 3 J. & L. 49(3 ; Hay- ford v. Griddle, 22 Beav. 480 ; Rams- den v. Hurst, 27 L. J. Ch. 482 : Pretty v. Solly, 26 Beav. 606 ; Bunbury's Estate, 1 Ir. Rep. Eq. 458 ; Mawson v. Fletcher, 6 Ch. 91, 94 ; Upperton v. Nickolson, 10 Eq. 228, 230 ; 6 Ch. 436. In the last case land sold as free- hold had been enfranchised under the Enfranchisement Acts : see, as to this. ante, p. 150. 3 Seaman v. Vawdrey, v. x. ; where there had been no exercise for 106 years. See also Ramsden v. Hurst, u. s. An Anonymous case is referred to by Lord St. Leonards (Vend. & Plir. last edit.. p. 393), in which a purchaser of an estate, with some valuable mines, which were under a common, was compelled to complete, on the ground, that obstruction by the commoners was highly improbable. But the au- thority of the case is doubted by Mr. Dart (1105, 1106) ; and it is obviously inconsistent with Seaman v. Vawdrey, u. .«., and the other cases cited in the pre- ceding note. See however Lyddal v. Weston, 2 Atk. 19. See further, as to the doctrine of non-user as applied to mines, post, Chap. XXII., Sect. 1. h. 4 See the Sc. decision of Whyte v. Lee. 6 Sess. Cas. (4th Ser.) 699. 5 Ramsden v. Hurst.;/.. s., per Kinders- ley, V. C. See however Bunbury's Estate, u. k 45 Vici. c. 41. s. 6. kc. Co., 20 Ch. D. 552 ; ante, p. 9. mines or arriea. 204 SALES, ENFRANCHISEMENTS, PARTITIONS, [CHAP. X. Precautions to be taken in framing in- struments. Every instrument dealing with mining property as a separate subject-matter should deal with it by the description of "mines and veins," and not by the description of "mines" only, or " veins " only ; having regard to the proper meanings of those words. 1 Every Crown grant of mineral property should deal with it by the description of "mines royal as well as base;" having regard to the meaning of mines in a Crown grant. 2 It has been already seen, that the word " mine ;" and probably the words "vein," "seam," and "quarry;" are wide enough to include, prima facie, the chamber in which the minerals are inclosed. 3 In framing instruments dealing with mining property regard should be had to these facts. And regard should also be had to the meaning of the word "mineral;" 4 and to the various meanings of the words "surface," "subsoil," "land," "close," "tenement," "hereditament," and " soil." 5 Care neces- sary in expressing intention to include mines or quarries. Illustrations of difficulties which may otherwise ensue — generally. b. Parcels. (a) Intention to include Mines or Quarries. Where it is intended that mines or quarries should be dealt with, care should, of course, be taken to express the intention with clearness. No doubt, where an Inclosure Act saves to the lord of a manor all seignories, rights, &c. ; and provides that he may enjoy the same, and all rents, services, &c, courts, &o, and all mines and minerals, and all powers of getting the same, and all other rights, in as full, ample, and beneficial a manner as he could have enjoyed the same, in case the Act had not been passed ; the mines and minerals and incidental rights will belong to the lord, although he previously enjoyed them in a capacity other than seignorial. 6 And, under the power given to the Land Commissioners of making, as the condition of an inclosure, any 1 Ante, p. 2. - Ante, pp. 40, 41. 3 Ante, pp. 9, 10, 11. 4 Ante, pp. 11 et seq. 5 Ante, pp. 19 et seq. 6 Ewart v. Graham, 7 H. L. C. 331, 343 ; affirming Graham v. Ewart. 1 H. & N. 550 ; and questioning, if not overruling, Greathead v. Morley, 3 M. & G. 139. As to the limited meaning, which, for other purposes, such a pro- vision will have, see Bell v. Love, 10 Q. B. D. 547, 566 et seq. CHAP. X.j EXCHANGES, ENCLOSURES, AXD INCUMBRANCES. 205 special agreement concerning the lands to be inclosed, 1 their intention to sever mines, &c, from the soil is sufficiently mani- fested by such a clause as this : — That one sixteenth part in value of the lands be allotted to the lords of the manor in lieu of their right and interest in the soil of the lands exclusively of their ri^lit and interest in the mines, minerals, stone, and other substrata under the lands. 2 Where, however, an Act for inclos- ing wastes of a manor provided, that a certain portion should be made to the lord in lieu of his right and interest in the soil, and that the residue should be allotted to the several tenants in fee, discharged from all customary tenures; and the Act con- tained a saving clause, reserving to the lord all seignories incident to the manor, and all rents, fines, services, &c, and all other royalties whatsoever ; and at the date of the Act there was a subsisting lease of the mines under the allotments ; it was held, that the lord was not, under the Act, entitled to those mines. 3 Under the express terms of an Inclosure Act, the lord of a manor may be deprived of the ownership of the soil of the waste, while his right to the mines and minerals therein may be saved to him. 4 In Micklethwait v. Winter, 5 an Inclosure Act for inclosing Micklethwait the waste lands of a manor enacted, that certain allotments v ' Winter - should be made to the lord for the damage he would sustain by being obliged to make compensation for digging for any coals or minerals ; and that, if the lord should enter on any of the lands for the purpose of digging any coals or other minerals, he should make compensation for damage done ; but it did not expressly reserve the mines or minerals to the lord. The lord was, before the Act, entitled to the soil and freehold of the com- mon, and to the coals and minerals thereunder. It was held, that, under the Act, he was entitled to the mines and minerals. In Denison v. Hollida y/' the owner of land, which contained coal, Deniwn v. ' Holliday. 1 Ante, p. 154. Beav. 606 ; Wakefield v. Bucclcucb, - Musgrave v. Forster, L. R. 6 Q. B. 4 Eq. 613 ; Buccleuch v. Wakefield, 590. L. R. 4 H. L. 877 : cited ante, pp. 21. 3 Tovraley v. Gibson. 2 T. R. 701. 22. See also Micklethwaite v. Winter, 6 4 See Robinson v. Wray, I,. 1!, 1 C. Ex. 653 ; Brown v. Chadwick, 7 Ir. C. P. 400. L. Rep. 108 ; Listowel v. Gibbings, 9 5 (i Exch. 644. ib. 223. And cf. Pretty v. Solly. 26 6 3 H. & V. 670. 200 SALES, ENFRANCHISEMENTS, PARTITIONS. [ciIAP. X. Antrim M, Gray. Benfieklside Board v. Consett Co. mortgaged both land and coal. She subsequently devised the coal mines to her children, and her lands (except the mines) to trustees, upon trust to sell ; and, subsequently to her will, she demised parts of the coal to two of the trustees. By a deed of conveyance by the trustees of her will and the trustees and executors of the mortgagee to a purchaser ; after reciting, that the purchaser had agreed to purchase the lands, save and except the beds of coal, and that the lessees were entitled to all the coal ; it was wit- nessed, that the trustees and executors of the mortgagee con- veyed all the land, together with all houses, &c, and quarries, (omitting the word " mines,") excepting and reserving unto the lessees during a certain term (which was shorter than that granted to them by the mortgagor) all the mines and beds of coal, to have and to hold to the purchaser in fee. It was held, that the purchaser had acquired no interest in the mines of coal. 1 In Antrim v. Gray, 2 a grant of land had been made in 1749, which excepted all mines and minerals. In 1856, the Irish Incumbered Estates Court purported to convey the same land " subject to the covenants, clauses, and agreements, on the part of the grantee " under the previous grant. The Court had power to make a title to the whole solum, from the surface down to the centre, and to convey every possible interest therein. It was held, that the mines did not pass to the grantee under the conveyance of 1856. Where an Inclosure Act for inclosing commons, and setting out public highways over the land, re- served to the lord of the manor "all mines, minerals, and quarries, of what nature and kind soever, lying and being within or under the said moors or commons intended to be divided and allotted," it was doubted, whether the mines under the roads were included. 3 1 Affirming S. C. 1 H. & N. 631. 2 9 Ir. Rep. Eq. 513. 3 Benfieldside Local Board v. Con- sett Iron Co. 3 Exch. D. 65, per Cleasby, B. It need hardly be said, that where a grant of land contains a proviso, that the grantee should not dig or get any coal upon the land for sale, but only such as should be burned or employed thereon, the pro- viso cannot constitute an exception of the coal : see Ashton v. Stock, 6 Ch. D. 725. For questions arising under Scotch grants, see Fleeming v. Howden, 6 Sess. Cas. (3rd ser.) 783 ; Harvie v. Stewart, 9 ib. 129 ; Boyd v. Bruce, 11 ib. 243 ; Baird v. Kilsyth, 6 ■ib. (4th. ser.) 116. CHAP. X.] EXCHANGES, ENCLOSURES, AND INCUMBRANCES. 207 (/3) Boundaries. And no less cai-e should be taken to define with clearness Care uecessary the limits of the mines or quarries. For this purpose existing boundaries. boundaries either on the surface or underground should be made use of as far as possible ; and, in so far as they cannot be used, there should be a reference to imaginary lines. The limits should also in every case be defined by reference to a map or plan ; and this map or plan should correspond exactly with the description contained in the instrument to which it belongs. 1 The Crown, as lord of the manor of Englefield, Meaning of granted " all those coal mines found, or to be found, within the commons, waste grounds, or marshes within the said lordship of Englefield" ; with a proviso that the grant should be construed strictly against the Crown. It was held, that coal which formed part of the manor, but lay under the foreshore of the estuary of the river Dee between high- and low-water marks, was included in the word " waste," and therefore passed. 2 c. Liberties and Restrictions. As will be hereafter seen, 3 the owner of a mine or quarry is Mine owner entitled, primd facie, to exercise various important liberties in ever P o Ss ibie, respect of the overlying surface or of the surrounding subsoil, stl P ulat( ; ior 1 jo o > express hber- derivable from the mere position, as adjoining owners, of the ties. owner of such mine or quarry and the owner of such sur- face or such subsoil. As will, however, also be seen, 4 there are various important liberties, which a mine or quarry owner is not entitled to exercise in respect of the overlying surface or the surrounding subsoil, unless he has expressly stipulated for the right to do so. Aud it is in every case desirable, that he should, if possible, be in a position to ascertain the whole of his rights from the instrument under which he 1 See Brain v. Harris, 10 Exch. 908. ley, W. N. 1883, 13, 44. As to the onus. See post, Chap. XI., Sect. 1 (£). in Scotch law, in a case of difficulty, 3 See A. G. v. Hanmer, 27 L. J. Ch. see Hamilton v. Graham, 10 Sc. Law 837. As to production of documents Rep. 61. in cases as to boundaries, see Jenkins v. 3 See post, Chap. XIV., Sect. 3, a. Bushby, 35 ib. 400 ; Ponsonby v. Hart- * See ib., b, c. 208 SALES, ENFRANCHISEMENTS, PARTITIONS. [CHAP. X. Particular claims. In most cases the grantee of a mine or quarry upon an kinds of liber- exception of the rest of the land, or the grantor who excepts a ties which are * desirable. mine or quarry from the rest of the land, or the person who otherwise becomes or remains the owner of a mine or quarry under an instrument of severance, will find it convenient, besides stipulating for liberty of searching for, digging, getting, working, winning, and carrying away the minerals, to stipulate for liberty of entering upon the surface ; of using existing, and of sinking, driving, making, erecting, setting up, and using, new, pits, shafts, adits, levels, cuttings, roads, tramways, railways, reservoirs, watercourses, basins, drains, soughs, airways, houses, buildings, boilers, furnaces, ovens, pumps, engines, and machi- nery ; and of exercising these liberties as often as may be convenient ; l of discharging upon the surface the water from the mine ; of using the surface for the carriage of the minerals, with or without the aid of horses, waggons, tramways, or loco- motive engines ; of laying the minerals and rubbish upon the surface ; and of exercising all these liberties without regard to whether support be thereby withdrawn from the surface, or the surface be thereby cut up, or permanently destroyed, or seriously injured. And he will often find it convenient to stipulate for liberties of using, abstracting, diverting, withdrawing support from, or fouling water; whether such water be surface or sub- terranean, and whether it be present naturally or artificially. Of course, however, he will hardly find it possible to obtain such liberties except upon the terms of making compensation for all damage. Fencing pits As w ^l ^ e hereafter seen, 2 if a mineral owner leaves pits or shafts unfenced, and horses or cattle belonging to the overlying surface owner are thereby injured, the mineral owner will, in general, be, prima facie, liable. Express provisions as to the fencing of pits and shafts should, however, in all cases of sever- ance of ownership be inserted. It will sometimes in such cases be proper to stipulate that the mineral owner shall fill up pits and shafts when they are no longer wanted, and shall restore the surface. And provisions should in all such cases be made 1 See Taylor v. St. Helens, <; Ch. D. - Seejw»f, Chap. XIV., Sect. 3.r (ff). 278, 281. &c. GHAP. X.J EXCHANGES, ENCLOSURES AND INCUMBRANCES. 209 for compensating the surface owner or his tenants for damage Compensation done to the crops by the mineral operations ; and for damage C ro P ;, ai &)f e * or inconvenience- caused by smoke issuing from furnaces, if the use of furnaces is necessary or probable. 1 (J. Sales — Price. Where the plaintiff granted to the defendant all the coals Jowett ». and mines of coal under certain lands ; and the defendant ma&^aeot covenanted to pay to the plaintiff as the price £40 for every " found -" statute acre of the coal, which should be "found" under the lands ; and, until the said price should be fully paid, to pay £40 per annum by half-yearly payments, whether the whole of an acre of the coal should in any year be "gotten " or not ; and the defendant did not enter into any covenant to work or get the coal ; it was held, that the " finding" of coal was not a con- dition precedent to the plaintiff's right to recover the annual sum of £40.~ e. Ineu mbrances — Repayment — Remedies. 3 It is always proper in mortgages of mines, having regard to Re-payment, the diminishing nature of the security, for the mortgagee to stipulate that the principal money advanced shall be repayable by instalments. 4 In an action for foreclosure against a mining company by the Remedies, holders of debenture bonds, who have a charge on all the real and personal estate, assets, plant, machinery, and effects of the company, an interim order for the appointment of a receiver and manager may be obtained. 5 A mortgagor may, in a proper 1 For the construction of provisions 3 As to the rights of a mortgagor and as to user of the surface or the suhsoil, mortgagee to work, see ante, pp. 82 see post, Ghap.XrV., Sect. 3, a. (£) (y). et sea.; the rights of the mortgagee See, as to support, post, Chap. XV. : of a partner, ante. p. 118; and tho as to ways, post, Chap. XVI. ; and as power of a mortgagee to sell, ante, p. to water, post Chap. XVII. For the 136. And as to the positions of a form of a reservation of liberties in a mortgagor and a mortgagee, where partition deed, see Wolst. & T.'s Settled minerals belonging to a third party Land Act, pp. 136, 138, 139. 140. are improperly worked, see post, 2 Jowett v. Spencer, 1 Exch. 647 : Chap. XXII., Sen. 2, a. reversing S. C. 15 M. & W. 662. 4 Dav. 2, Part 2, 433 n. "Found" was said to mean •• ascer- 5 Peek v. Trinsmaran Co.. 2 Ch. D. tained to lie and be." 115; Set. 122. For the form of an p 5210 SALES, ENFRANCHISEMENTS, PARTITIONS, [cHAP. X. case, in a foreclosure action, be restrained from removing", disturbing, or injuring fixtures. 1 Taylor v. Shafto. Dennett v. Atherton. Spoer v. Green. /. Covenants for Title. In Taylor v. Shafto" the owner of land granted a lease of the mines thereunder ; and the lease contained provisions not merely enabling, but binding, the lessees so to work as to withdraw sup- port from the surface. 3 The owner subsequently sold the surface, excepting the mines, with power to work and carry away the minerals; and the conveyance contained the usual covenant for the right to grant, free from incumbrances. Subsequently to the sale the workings of the lessees caused the surface to subside. It was held, that the covenant had been infringed. However, where the owner of land containing mines works out the mines ; and subsequently sells or demises the land, giving the usual covenant for quiet enjoyment ; and the purchaser or lessee builds a house ; and, in consequence of the workings, the house subsides ; the covenant is nevertheless not infringed. Such a covenant would otherwise imply a warranty, that the land was capable of being used for any purpose, or for any purpose not expressly excluded. 4 Spoor v. Green 5 involved similar questions. There the owner of land, underneath which were coal mines and fire clay, granted a lease of the seams of coal, with incidental powers over the surface in respect of those seams, and also in respect of an adjoining colliery. The seams were soon after- wards substantially worked out by the lessees. Subsequently, but during the subsistence of the lease, the owner, without fraud or concealment, sold the land ; 6 and the conveyance contained the order appointing a receiver and manager on behalf of debenture hol- ders, without prejudice to a previous order, see Huntington v. Coal Ass., Set. 421, 422 : see also Lloyd v. Lloyd Co. ib. 189. 1 See Lloyd v. Lloyd Co., Set. 189. For the proportions in which mines and surface property, which belong to different persons, but are together subject to a rent -charge, should con- tribute' to the payment of the charge, see Ley v. Ley, 6 Eq. 174. 2 8 B. & S. 228. 3 See Shafto v. Johnson, 8 B. & S. 252, n., cited post, Chap. XV., Part C, Sect. 2, c. (/3), where the lease in question was the same. 4 See Dennett v. Atherton, L. R. 7 Q. B. 327. 5 L. R. 9 Exch. 99. 6 There was no exception of the fire- clay, which was, accordingly, included in the sale. CHAP. X.] EXCHANGES, AND INCUMBRANCES. usual covenants for title, quiet enjoyment, and freedom from incumbrances. There had not been, subsequently to the sale, any working, or any exercise of the powers over the surface ; and it did not appear, that such powers were likely to be exer- cised. More than 20 years after the sale, but in consequence of the workings, the surface subsided. It was held (1) that the subsistence of the lease in respect of the unwrought coal, and the unexercised powers, did not constitute a breach of the covenants ; and (2) that, if it did, the breach was not a continuing breach, but had taken place once for all; and that the remedy was, therefore, barred by the Statute of Limitations. 1 And the fact, that the lessees had, subsequently to the sale, but within 20 years of action brought, entered the mines, and taken some fire- clay therefrom, was held (3) not to constitute a breach of the covenant for quiet enjoyment; the fire-clay having been in- cluded, not in the lease, but in the sale, and such taking having, therefore, been a trespass. 2 However, the fact, that the lessees had, at the time of entry, also taken some loose fragments of coal from the mines, was held (4) to constitute a breach of the covenant for quiet enjoyment. :; g. Stamps. Conveyances on sales are subject to an ad valorem duty of 10s. per f 100 ; 4 and the term conveyance on sale includes every instrument, and every decree or order of any Court or of any Commissioners, whereby any property upon the sale thereof is legally or equitably transferred to or vested in the purchaser or any other person on his behalf or by his direction. 5 1 Per Cleasby and Bramwell, BB., instrument subject to this Act Kelly, C.B., dissenting. stated, that the plaintiffs had agreed 2 jjy to sell to the defendants all the 3 Per Kelly, C.B. In consequence two upper veins or beds of coal. &c., of the state of the pleadings the deci- at the price of £77 per acre, £100 to sion upon tliis point was immaterial. be paid on the date and the remainder * Stamp Act, 1870, Sched. by equal quarterly payments, with a 5 S. 70. These words are wider provision, in case more coal should l>e than those in the Act 55 Geo. 3, worked than in any year should ex- c. 184 : " conveyance .... of any ceed £100 at the rate of £77 per acre, kind or description whatsoever upon for the payment of the excess. It the sale of any lands, &c, whereby was held, that an ad valorem stamp the lands, &c, shall be conveyed to or was not necessary. See Phillips vested in the purchaser, . 41. 1 1 Ch. 410. fl L. R. 1 II. L. 22-2. 214 LEASES PARCELS- [CIIAP. XI. Admissibility of evidence as to use of language amongst miners. to for the purpose of ascertaining the real boundary. 1 Of course, however, it is impossible 'to delineate on a map or plan with absolute accuracy in all minute particulars the limits of mines or quarries. Accordingly, where a variance exists, or is said to exist, between the limits as described in the instrument in question, and as delineated on a map or plan, the limits will be ascertained as far as possible by reference to the words of description in the instrument, and without reference to the map or plan. 2 Sometimes evidence will be admitted to show the under- standing amongst miners as to the particular language em- ployed. Thus, in Clayton v. Gregson, 3 lessees had covenanted, that they would, by a certain time, get all the coal "not deeper than or below the level of" the bottom of the A. mine under a certain point at the surface. It was held, that evidence was admissible to show, whether, according to the understanding of miners, the expressions used referred to a perpendicular depth below the surface, or to the inclination of the strata and the power of drainage. 4 Sect. 2.— RENT AND ROYALTY. a. Mine or Quarry. (a) Generally. Desirability of The lessor of a mine or quarry should always stipulate for a dead raft and combination in the reddendum of fixed or dead rent, and of royalty. royalty. He will, by this means, ensure the receipt, on the one 1 Per Lords Cranworth and Chelms- ford, Lord Westbury dissenting. The plan was in itself slightly inaccurate, but this was held by the majority of the Lords to be immaterial. 2 Taylor v. Parry, 1 Scott N. R. 576. Cf. Brain v. Harris, 10 Exch. 908 ; Thomas v. Atherton, 10 Ch. D. 200, 201. 3 5 A. & E. 302. • It was referred to an arbitrator to receive evidence, and state a case ; and he found, that, according to the understanding of miners throughout the district in which the mine was situate, the expressions had reference to the inclination of the strata and the power of drainage. It was held, that judgment could not be given on the footing of the finding ; some of the parties to the lease having been named as residing outside the district ; and a new trial was ordered. Cf. Brain v. Harris, u. s. SECT. 2.] RENT AND ROYALTY. 215 hand, of a yearly sum of ;i specified amount, however unpro- ductive the demised property may prove; and, on the other hand, of a sum proportionate to its productiveness, if it prove productive. In some leases the dead rent and the royalty are made payable cumulatively. Others provide, that a deduction out of the dead rent may be made of the royalty actually paid 08) Dead Rent Where a dead rent is reserved, it is payable, /. .-•. 636. 2 Haywood v. Cope. 25 Beav. 140 ; 6 Phillips r. .Times. //. g. 519. Strelley v. Pearson, 15 Ch. D. 1 13, L19. '■ Ridgway v. Sneyd, n. s. 627. Cf. the Scotch law as to onworkahi lit y 8 Phillips y. Jones, m. s.; Mellei to profit, as illustrated in Gowan v. Devonshire, u. s. 255. Christie, L. R. 2 Sc. & D. 27:5. 9 R. v. Bedworth, 8 East, 387 ; Bute 3 Phillips v. Jones, 9 Sim. 519; v. Thompson, 13 M. & W. }S7 ; Milne Mellers v. Devonshire, 16 Beav, 252. v. Taylor, 16 L. T. 172: Jegon o, 4 Ridgway o. Sneyd. Kay, 627,635. Vivian. L. R. 1 C. P. 34: Clifford v. See also Mellers v. Devonshire, u. s. Watts, 5 i'ft., 587, 588. 216 LEASES — [chap. XI. payment. demised prove tu be a nonentity, if the bargain between the parties is, in substance, that the lessee shall take his chance of finding the minerals. For in such a case a warranty by the lessor, that the mine exists, will not be implied. 1 It has, however, been said, that, if, in consequence of former and unknown workings, the minerals supposed to have been demised had all been pre- viously gotten, the payment could probably not be exacted ; the doctrine of mutual mistake being, in such a case, probably ap- Fraud to evade plicable for the relief of the lessee. 2 Where a lessee had cove- nanted to pay a dead rent commencing on the first quarter-day after a specified quantity of coal had been dug, he was not allowed to escape the payment by fraudulently abstaining from completing the digging of that quantity. 3 Where a dead rent is not reserved, the lessor cannot rely, as a safe substitute, upon a covenant by the lessee to work in a work- manlike manner : 4 or even upon covenants to take the usual steps forthwith to win the minerals ; or to work diligently and regularly ; or to get a specified quantity of minerals in each year of the demise. For, where a lessee had covenanted to pro- ceed forthwith to sink pits " as far as could and ought to be accomplished by persons acquainted with the nature of collieries, and as in such cases was usual and customary ; " and he ascer- tained, upon trial, that there were, in fact, no coals, or none worth the expense of getting ; it was held, that he was not Covenants as to working are unsafe substitute. 1 Jefferys v. Fairs, 4 Ch. D. 448: where, however, evidence was given to show, that the search was insuffi- cient. See also Jervis v. Tomkinson, 1 H. k N. 208. In Scotch law a lessee is entitled to abandon a mining lease, when the mine turns out to be a nonentity, or there is a total destruc- tion or exhaustion of it : Gowan v. Christie, L. R. 2 Sc, & D. 273. The Civil law doctrine, upon which the Scotch law is founded, was the same. 2 Ridgway v. Sney r d, Kay, 627, 635, 3 Green v. Sparrow, 3 Swanst. 408 n. For a decision, under a Scotch lease, as to the non-liability to pay- ment until the lessor had performed a covenant on his part to make a road, see Guthrie v. Sheares, 1 Sess. Cas. (4th ser.) 181. A covenant (Scotland) to portion a daughter upon the father's death in a sum equal to 3 years' rental of an estate containing minerals was held to mean an average of the rental for the 3 years preceding the death ; a new lease at a greatly- increased rent having been granted within the 3 years : Douglas v. Scott, 8 ib, (3rd ser.) 360 ; following Wellwood r. W., 11 D. 248. See also Allan's Trustees v. Hamilton, 5 ib. (4th ser.) 510; and cf. Sibright v. Straiton Co., 6 ib. 1208. 4 Jegon v. Vivian, 6 Ch. 757, 758. SECT. 2.] RENT AND ROYALTY. 217 bound to sink the pits. 1 And, if, where a lessee lias covenanted to work fairly and regularly, or diligently and regularly, faults are found or unavoidable and insuperable 2 accidents happen, whereby it is impossible to work except at a ruinous expense; although the lessee will not be allowed to plead the faults or accidents as an absolute bar to all relief against him on his covenant ; 3 the lessor will not, on the other hand, be allowed to enforce the covenant, if the lessee offers to pay the royalty on all the minerals capable of being worked. 4 And, if, where a lessee has covenanted to get a specified quantity in each year, it turns out that there never was in the mine the quantity speci- fied, the covenant cannot be enforced.' The lessee should, if possible, stipulate that, in computing Lessee should the amount of rent, deductions should be made in respect of deductions minerals which should be found unworkable or unsaleable, and in respect of faults; and that deductions should also be made in the event of the working being prevented or suspended by fire, water, or other insuperable accident. The lessee should also, if possible, stipulate for the insertion And for in the lease of an " average clause ; " whereby, in the event of his clause! failing in any year of the demise to raise a sufficient quantity of minerals to compensate him for the payment of the dead rent, he may be entitled to make up the deficiency in any subsequent year, without being obliged to pay royalty in respect thereof. Where it is intended to insert an average clause, unless the intention is clearly expressed, difficulties may arise. Thus, in Bishop v. Goodwin, 7 where a royalty was made payable quarterly, it was provided, that, in case, at the end of the first quarter of any year the royalty should not equal £38 10*., the lessees 1 Hanson v. Bootlinian, 13 East. 22. If the lessor ran get everything he - An issue will, if necessary, be has contracted for. he will not, in directed to ascertain, whether the addition, be allowed to compel the accident is unavoidable and insupera- lessee to be at an expense which will ble : see Walker v. Jefferys, 1 Ha. 3.")2. benefit no one: Bidgway v. Sneyd, 3 Morris v. Smith. 3 Dongl. 27'.'. u. s., &35,pei' Wood, V.-C. 4 Smith v. Morris. 2 B. C. C. 311 5 Clifford v. Watt-. L. R. 5 C. P. (for the form of the decree in which .">77. see p. 314) ; Phillips v. Jones, 9 Sim. '' See, as to accidents, Simpson v. 519 : Walker v. Jefferys, u. s. : Mellers Ingleby, 20 W. R. 587, 993. v. Devonshire, 16 Beav. 258; Ridg- "' 14 M, & W. 260. way v. Sneyd, Kay, 632, 633. 634, 637. 218 LEASES — [(HAP. XI. should thereupon pay the deficiency; and that, in case, at the end of the second quarter, the royalties for that and the preced- ing quarter should not equal £75, the lessees should thereupon pay the deficiency ; and so on with respect to the third and fourth quarters ; it being the intention of the parties, that the royalties should always amount to " £150 per annum at the least." It was held, that, in calculating the amount due at the end of each year, the lessees were not entitled to set off the excess of royalty accruing in any quarter against a deficiency in the previous quarter ; but that the lessor was entitled, at the end of each quarter, to the full sum of £38 10s. 1 Lessor should stipulate for covenants as to working ; so as to secure maximum royalty. (y) Royalty." Proper provisions should be inserted to secure the payment of as large a royalty as possible. The lessee should, for instance, be required to covenant that he shall continuously work ; 3 and such covenant should be explicit in its terms. It will not be implied from the mere fact, that the parties to such a lease could have had no other intention than that the property should be worked ; 4 or that a royalty has been reserved ; 5 or that the lessee has covenanted to work in a " proper and workmanlike " manner. 6 Indeed, in a case, where a rent and a royalty were reserved ; and the lessee covenanted to work in a " workman- like manner" all mines "which then had been, or thereafter during the continuance of the demise should be, discovered or i In Clayton v. Penson, W. N. 1878, p. 158, a difficulty arose on an average clause through the use of the words "actually worked and brought up." A lessee sometimes stipulates, that. until a specified time elapses, he shall not be charged with dead rent : see Lewis v. Fothergill, 5 Ch. 103. A lessee also frequently stipulates for liberty to surrender his lease in certain contin- gencies : see, as to this, infra, Sect. 6, b. - As to the advisability of reserving a royalty, as well as a dead rent, see ante, p. 214. 3 Jegon v. Vivian, 6 Ch. 757. Cf. Walker v. Jeffreys, 1 Ha. 341, 351. 4 Jegon v. Vivian, u. s. 5 See Crang v. Adams, 5 B. P. C. 588 ; Wheatley v. Westminster Brymbo Coal Co., 9 Eq. 538, 539 ; Jegon v. Vivian, v. s., 742, 746. The two latter cases must apparently be taken to over- rule Sharp v. "Wright, 28 Beav. 150 ; where the reservation of a royalty, pay- able quarterly, was held to imply a covenant to commence working imme- diately, and to proceed continuously. 6 Jegon v. Vivian, w. s., 757. Cf. Mcllers v. Devonshire, 10 Beav. 257. SECT. 2.] RENT AND ROYALTY. ■> ] ;i opened ; " and an action was brought upon the covenant ; and the lessee pleaded, that, before the demise, the mines had never been worked, and that, during the demise, he had never in fact worked them ; it was held, that lie had not infringed the covenant. 1 And where a lessee covenanted to pay a dead rent, and to continue to work so long as the mine was " fairly work- able," it was held, that he was not obliged to continue to work when he could no longer work at a profit. 2 Acquiescence by a Acquiescence lessor in the breach of a covenant to work continuously may breach.' not disentitle him to bring an action for ejectment. 3 But it may oblige him, before doing so, to give the lessee a reasonable time for restoring the plant and machinery on the mine to a working condition. 4 A covenant to " win " a mineral means, prima facie, to Meaning of reach it, and put it in such a condition, that it may be continu- ously worked in the ordinary way. 5 " A coal-field is won when full practicable available access is given to the coal hewers." G A covenant to "raise" means, prima facie, to get or win ; Meaning of not to bring to the surface. 7 A covenant to work china clay in the most proper and effectual manner with a reasonable number of able-bodied men kept employed on the works at all reason- able and usual working times ; and so that the china clay may be " raised, washed, and made merchantable as speedily as practicable ; " has been held to be infringed by omitting for several weeks to employ the men in the raising, although during the whole of such time they were employed in the washing and making merchantable. 8 The lessor should not, however, exclusively rely u]Don a Lessor should 1 Quarrington v. Arthur, 10 M. & 111. W. 335. 6 Rokcby v. Elliot, 13 Ch. D. 279, 2 Jones v. Shears, 7 C. & P. 346; per James, Baggallay, and Thesiger, S. C. 4 A. & E. 832. See, however, L.JJ. : see also S. C. '.» Hi. 639, per Cart wright v. Forman, 7 13. & S. Fry, J. Sec further, on this point, 247. infra, pp. 222. 223. 3 Whitehead v. Bennett. 9 W. R. 7 Senhouse v. Harris. 5 L. T. X. S. 62G, where there had been an acquies- G35 ; Kinsman v. Jackson, 42 ib. 80. cence for fifteen years. 8 Kinsman v. Jackson, u. s., 80, 558. 4 Whitehead v. Bennett. ?/..?. See As to the meanings of "found" and further, as to covenants to work, infra, "gotten," see Jowett o. Spencer, 1 Sect. 3, b. Exch. 647; ante, \k 209. In b. 54 •> Lewis v. Fothergill, ■> Ch. 106. of .". & <', Will. 4. c. 50 (Highw.), 220 LEASES- [CHAP. XI. also stipulate for covenant to produce specified quantity. covenant to work continuously; or to work uninterruptedly, efficiently, and regularly. It is, no doubt, the law, that, if a dead rent has been reserved by a lease in addition to a royalty, and the lessee has covenanted to work constantly and effectually ; and, after an interval, he discontinues the working altogether ; he may be made liable on the covenant, although he pays the dead rent. 1 But difficulties may easily arise in determining the precise amount of working, which will satisfy such a cove- nant. 2 The lessor should, in addition to a covenant to work continuously, require the lessee to covenant to produce a specified quantity of minerals at or within specified intervals. 3 If a lessee enters into a covenant to produce a specified quantity of minerals, whether they exist in the mine or not ; or to pay the stipulated royalty as if they had existed ; lie will not, although there never was that quantity in the mine, be allowed to allege impossibility of performance at the time of entering into the covenant ; whether occasioned by the act of a third party, or by the act of God, or otherwise. 4 If, how- " getting" refers only to " winning," and does not include " carrying away " : Ramsden v. Yeates. 6 Q. B. D. 583, 585 ; ante, p. 106. As to pro- visions respecting the sinking of pits and shafts, see infra, Sect. 3, c, (7). 1 See Whitehead v. Bennett, 9 W. R. 628, per Kindersley, V.C. ; Simp- son v. Ingleby, 20 W. R. 993, per James and Mellish, L.JJ. ; Kinsman r. Jackson, 42 L. T. 80, per Jessel, M.R . ; affirmed, ih. 558. See also Quarrington v. Arthur, 10 M. & W. 335 ; Jervis v. Tomkinson, 1 H. & N. 195. Cf. Newton v. Nock, 43 L. T. 197. There a covenant in a brick lease to " get the demised clay to the fullest practicable extent, consistent with the means of sale of bricks and tiles to be made therefrom," was held not to bind the lessee to go on work- ing ; the evidence showing, that pro- fitable brickmaking at the royalty in question had become impossible. In Wheatlcy v. Westminster Brymbo Coal Co., 9 Eq. 538. 550. 551, 553 : and Simpson v. Ingleby, 20 W. R. 588 ; Malms, V.C, expressed his opinion, that a lessee could not, under the cir- cumstances mentioned in the text, be made liable ; and that such a cove- nant as is there mentioned only ob- liged him, in the event of his working, to work constantly and effectually ; but did not oblige him to work at all, if he did not choose to do so. His Lordship did not, however, in Wheat- ley v. Westminster Brymbo Coal Co., decide the point ; but only held, that, if there was a liability, it could not be enforced in equity. 2 See Wheatlcy r. Westminster Brymbo Coal Co., u. .. T, T. 516. •2:21 LEASES — [CHAP. XI. stroke 1 or otherwise, through, over, under, or upon the demised property, minerals gotten in other mines ; and for the rights to ventilate and drain other mines through the demised property ; and (if it be intended that the lessee shall not enjoy the right without paying for it) for the right to work the demised mine by instroke. 2 G. W. R. Co. v. The words "through, over, or under," used in a reservation of wayleave royalty for the carriage of foreign minerals, were the subject of decision in Great Western Railway Co. v. Ron*:'' The company in that case agreed to take an assignment of a por- tion of the demised land ; and erected a siding thereon ; and used such siding for the temporary shunting of trains, until they could safely and conveniently forward them to their destination. Many of such trains contained foreign minerals. It was contended, that, of the words "through, over, or under," "through" was the o-overnina: word ; and that the reservation could not have been intended to apply to minerals, which were brought on the demised land for a temporary purpose, and then removed ; but only to minerals, which traversed the land in the sense of enter- ing at one end, and going out at the other. It was, however, held, that, in respect of the minerals in question, the royalty Senhouse v. was payable. In Senhouse v. Harris? a difficulty arose upon a Hams. reservation of outstroke royalty. There the defendant was the lessee of mine A. (which was not owned by the plaintiff) ; and was the grantee under the plaintiff of the right of carrying coals from that mine along a tramway of the plaintiff on payment of 2id per ton carried. The defendant took a lease of B., an ad- joining mine, from the plaintiff; and thereby obtained liberty to bring the coal got in A. to the surface by way of outstroke through B. on payment of lhd. per ton for outstroke rent. It was held, that 1\d. per ton was payable in respect of the pro- duce of A. conveyed along the tramway, although such produce was brought to the surface through B. 5 1 See infra, Sect, i (a), from B., "which should be used or 2 See infra, Sect. 3. c, (/3). consumed on or for any engine em- 3 L. R. 4 H. L. 650. ployed in working or carrying on the 4 5 L. T. N. S. 635. mines demised." The engine of B. 5 The lease also provided, that no was used in keeping B. free from rent was to be paid for any coal got water, hut was at the same time also SECT. 2.] RENT AND ROYALTY. £25 c. Measurements, Accounts, Phi us, Inspection, <(•< . As ancillary to the covenants to pay royalty or footage rent ; Lessor Bhould or to pay way leave, airleave, or waterleave rent ; or to pay rent SnteMto for the rights of instroke, 1 outstroke, 2 ventilation, or drainage ; measures iiiii> accounts, the lessor should stipulate for the insertion of covenants by the plans, lessee to valu# and measure or weigh the minerals in question ; mspec and to apprize the lessor of the times of so doing ; and to keep proper accounts, and also proper plans, of the workings ; and to allow the lessor to have access to the mine and to the measur- ing or weighing machines ; and to produce the accounts and plans for the inspection of the lessor, and to allow him to take copies thereof. 3 The provisions of the Act 44 & 45 Vict. c. 41, s. 14, restricting the right of forfeiture for breaches of covenants in leases, are not available in the case of a covenant to allow the lessor to have access to or inspect books, accounts, records, weigh- ing machines, or other things, or to enter or inspect the mine or the workings thereof. 4 Where a shaft leading to the mine is itself within the demised property, the lessor is, in the absence of stipulation, entitled to go down the shaft and inspect the mine. 6 d. Remedies for Non-Payment, Independently of any provision to that effect, a distress will Distress. lie on non-payment of a dead rent : or even on non-payment of a royalty, or a footage rent; the maxim, if? certum est, quod used for bringing up the coal in A. 2 See infra, Sect. 4 (a). Upon this it was held, that no rent 3 Even before the Jud. Acts settled was payable in respect of the engine, accounts might sometimes have been because (1) it would be difficult to deter- re-opened for error at law : see Perry mine how much of the steam power v. Attwood, 6 E. & B. 691. As to the was appropriated to the purposes of effect which a covenant to keep ac- B. ; and (2), the amount might be counts and deliver copies will some- considered to have been paid for in times have, see Edwards v. Rees, 7 ( '. the outstroke rent. See Hodgkinson & P. 340, ante, p. 222. For an injunc- v. Crowe, 10 Ch. 622 (p. 623), for tion to restrain the removal of ore until another case in which a question arose it was measured, see Wright v. Pitt, 12 as to the liability to payment for the Eq. 408. 417. mere user of coal. 4 See the section. 1 See infra, Sect. 3 c (/3). 5 See Lewis r. Marsh. S Ha. 97, 99. Q 226 LEASES — RENT AND [chap. XI. Action on covenant. Action for account. Interest. cerium reddi potest, being in the latter cases applicable. 1 A power in a mining lease of distraining upon lands ; " in which there shall be for the time being any pits or openings, by or through which the " demised coal " shall for the time being be in course of working by the lessees, their executors, administrators, and assigns;" probably does not run with lands owned by the lessees at the time of the demise, and through which the mines were worked : but it is binding as against assignees with notice. 2 Besides the remedy of distress a lessor may, of course, have a remedy on the covenants to pay. And a lessor was always entitled, even before the Jud. Acts, to a remedy in equity for an account. And this was irrespective of whether he was also entitled to an injunction : mining operations having always been regarded as a species of trade ; 3 and the rule, " no injunction, no account," haviag, therefore, been deemed inap- plicable. 4 In a successful action to recover rents and royalties interest at £4 per cent, is also recoverable from the date of the writ. 5 Sect. 3. -WORKING. a. Right to Work. Express right Every mining lease should give the lessee liberty to search for, to work should . . . . , , . , . be given to dig, get, work, win, and carry away the minerals in question. lessee. -^ Q doubt there is a clear distinction between a lease of lands, which happen to contain mines or quarries ; and a lease, which embraces no other property than mines or quarries. In the 1 Daniel v. Gracie, 6 Q. B. 145 ; R. v. Westbrook, 10 ib. 205 ; Edmonds v. Eastwood, 2 H. & N. 826. 2 Daniel v. Stepney. L. R. 9 Exch. 185 ; reversing S. G, 7 ii. 327. A mining lease, giving a power of dis- tress by way of security for a debt, and reserving a rent as a mode of providing for the payment of interest, is not a bill of sale within the mean- ing of the Bills of Sale Act, 1878 : see s. 6. 3 Jesus Coll. ?•. Bloome, Ami). 55, 56 : 3 Atk. 262, 264 : Pulteney Warren, 6 Ves. 73, 89 ; Jefferys v. Smith, 1 J. & W. 302 ; Parrott v. Palmer, 3 M. & K. C32. C40, 642 : sec also ante, p. 57 n. 2 , and other cases there cited. 4 Jesus Coll. v. Bloome, u. s. ; Pul- teney v. Warren. ?/..■?. ; Parrott v. Palmer, u. s. ; Ernest v. Vivian, 33 L. J. Ch. 517, 519 ; Wright v. Pitt, 12 Eq. 416. See, however, Geast v. Barker, 2 B. C. C. 61. 5 Newton v. Nock, 43 L. T. N. S. 197 ; under the Act 3 & 4 Will. 4. c. 42. s. 28. For provisions for re-entry on non-payment, see infra, Sect. 6. a. SECT. 3.] ROYALTY WORKING. 007 former case, if the mines or quarries are new, 1 the lessee is, prima facie, disentitled to work. 2 In the latter case, although they are new, 1 he is, prima facie, entitled to work. 3 However, even in the latter case, his rights seem doubtful, if the mines or quarries are convertible to any other use than that of being worked. 4 And if the lease embraces both open l and new x mines or quarries, he is not, in the absence of express liberty, entitled to work the new mines or quarries. 5 And the terms And in unam- in which the liberty is given should be free from ambiguity. 31guous terms - In Dugclale v. Robertson, 6 the facts of which have been already sufficiently stated, 7 it was held, that the exception referred not merely to the liberty to " open, dig, sink, drive, win, work, and make ;" but also to the liberty to "search for, work, gain, raise, and get up, stack and carry along, use, sell and dispose of;" so that, although the mines and minerals under the lands coloured red were included in the lease, the lessees were held not entitled to work them. 8 As in the case of a grant in fee simple, 9 so in the case of Incidental a lease for years, whatever liberties in respect of the overlying surface or the surrounding subsoil are desirable for the purpose of working the mine or quarry in question should be the subject of express stipulation and grant. The lessee will usually find it convenient to stipulate for liberties similar to those already mentioned in the case of grants in fee simple. 10 The lessee of a quarry, who has covenanted not to commit waste by cutting trees, does not infringe his covenant by cutting trees excepted from the lease, and which it is necessary to remove in order to work the quarry. 11 A brick lessee, who has covenanted not to take or use more of the surface than should be necessary, nor to do any act by reason whereof the demised land should be 1 As to open and new mines or quar- 183,200. As to the effect of a cove- ries, see ante, pp. 22 et sea. nant by lessees to work " except the 2 See ante, pp. 51, 52. ribs or pillars which must necessarily 3 See ante, p. 53 : see also Cop- or which the lessors might require to pinger v. Gubbins, 3 J. & L. 410. be left," see Swindell v. Birmingham 4 See Coppinger v. Gubbins, u. s. Canal Co., 9 C. B. N. S. 241. ante, 5 See ante, p. 53. p. 213. 6 3 K. & J. 695. 9 Ante, p. 207. 7 Ante, p. 212. ln Ante, pp. 207, 208. 8 Cf. Attersoll r. Stevens, 1 Taunt. ll Doe v. Price, 8 C. B., 894. Q 2 OOg LEASES-'- [CHAP. XI. damaged, infringes his covenant by bringing foreign clay on to the demised land and there making it into bricks. 1 Quiet enjoy- And, of course, every lease should contain the usual cove- ment ' nant by the lessor for quiet enjoyment. In Shaw v. Stenton 2 a lessor covenanted, that the lessee should and might peaceably and quietly have, hold, occupy, possess, and enjoy the demised mine without any let, suit, trouble, molestation, interruption, or disturbance whatsoever. The lessor, in working ironstone, which lay above the demised mine, caused part of the roof of the demised mine to crush and fall in, and also caused the demised mine to be flooded. At the same time no act was done by the lessor upon the demised mine itself. It was held, that, in respect of both acts of damage, the covenant was infringed. 3 The mere orant of the right to work may, however, sometimes prevent a lessor or any person claiming under him from doing any act whereby such working may be made impossible. In Glasgow v. Hurlet Alum Co. 4, a lease was made of certain alum mines. A subsequent lease was made of certain underlying coal seams; and the coal lessees had worked out all the coal, except certain pillars which supported the roofs of the seams. If these pillars were removed, the working of the alum would have become impossible. The coal lessees proceeded to remove the pillars. It was held, that they were not entitled to do so. 5 Liability to A lessor may be liable to indemnify the lessee, if property, indemnify for w j 1 « c j 1 ^ e p Ur p rts to include in the demise, belongs to a third stranger's party, and the latter recovers against the lessee for working it. 6 mine. b. Duty to Work? Express duty Whenever it is intended to make it compulsory on a lessee to work, proper provisions for that purpose should be inserted. to work should be thrown on lessee. 1 Newton v. Nock, 43 L. T. N. S. ties who lease the alum ores;'' there- 2y7_ by showing beyond doubt, what the 2 2 H. & N. 858. intention was. 3 See further, as to covenants for G See Thomas r. Atherton, 10 Ch. D. quiet enjoyment, ante, pp. 210, 211. 197, 199. 4 3 H. L. C. 25. ' Provisions as to working for the 5 Itshould be observed, however ,that purpose of securing as large a royalty the coal lease contained a clause, that as possible have been already con- nothing thereby granted should " in sidered : see ante, pp. 218, et seq. any way injure the rights qf the par- SECT. 3.] WORKING. ■?;.".) It is clear, that a lessee cannot be compelled to work a mine on the mere ground, that it has been included in the demise, and a royalty reserved in respect of it; 1 or, apparently, on the mere ground, that he has covenanted, " in working it," to do certain things. 2 However, where a lessee has entered into an absolute covenant to " carry on, get, and work " a mine ; and has abandoned it ; he will, independently of his liability (if any) on account of rent or royalty, be liable, prima facie, on the covenant ; although its performance would have involved a use- less expense. 3 And, of course, he will not be discharged from such a covenant merely because he has also covenanted to work in a workmanlike manner. 4 Where a lessee of iron mines covenanted to work, unless the ironstone would not, by itself, or with a " proper mixture " and process in the manufacturing, make good common pig iron, it was held, that the meaning of the covenant was, not that the proper mixture should be found upon the demised premises, but that it should be procured by the lessee. 5 Specific performance cannot be obtained of a But per- covenant to work. 6 If the law were otherwise, the Court would n u ot spec ifi_ be subjected to incessant applications as to the working; and °?J ly enforce - would, in effect, have thrown upon it the duty of managing and superintending the working ; and this duty it invariably declines. 7 Similar observations apply to particular modes of working; 80 in case of such as simultaneously working, or working pro ra Id, two or^odesof more seams comprised in the same lease. Thus, in Abinger v. W0lkin £- Ashton 8 three overlying and underlying seams ; the T seam, which was uppermost, the B seam, which was the next, and the C seam, which was the lowest ; were comprised in the same 1 Wheatley v. Westminster Brymbo 6 See Wheatlej' v. Westminster Coal Co., 9 Eq. 539, 554 ; Abinger v. Brymbo Coal Co., u. s., 538. 551, 552 : Ashton, 17 Eq. 370. See also James Abinger v. Ashton, u. s., 358. See also v. Cochrane, 7 Exch. 170. Booth v. Pollard, 4 Y. & C. Exch. Eq. 2 See James v. Cochrane u. s. 179. til ; Pollard v. Clayton, 1 K. & J. 462. 3 Jervis v. Tomkiuson, 1 H. & N. ' Pollard v. Clayton, U.S.; Wheatley 195. Cf. James v. Cochrane, u. ,?., v. Westminster Brymbo Coal Co. u. s. 178, 179. 8 17 Eq. 358. A covenant to work 4 Walker v. Jeffreys, 1 Ha. 350, 351, "at all times" two or more seams of 352 ; Jervis v. Tomkinson, u. s. coal is, as was observed in this case 5 Foley v. Addenbrooke, 13 M. & (p. 370), frequently incapable of literal W. 174. performance. 230 LEASES [CHAP. XI. lease. The lessees covenanted to work and carry on at all times the said seams with their utmost skill and ability, in the best and most effectual manner, to the best advantage, and according to the common mode arid usual practice of carrying- on coal works with effect. After having for some time worked the three seams, they ceased to work the T seam, and were working the C seam in advance of the B seam. It was held, that there had been no breach of the covenant ; and a suit to compel the simultaneous working of all the seams was dis- Remedy for missed. 1 And where there is a breach of such a covenant : the breach usually damages and remedy is usually in damages only. 2 In no such case can the injimc ion. ^jg^ f tfie lessor be indirectly reached by an injunction to restrain the working altogether unless the particular mode in question is pursued. 3 To justify such an injunction the lessee must have entered into some restrictive or negative covenant of a precise kind ; as, for instance, not to work at all except in the particular mode specified. 4 This is a principle, which is applicable to other. cases besides those of mining leases. Court reluctant But to mining property it is peculiarly applicable. The Court to restrain ... workings. has the greatest reluctance to grant injunctions to restrain the working of mines ; on account of the great injury and incon- venience which may be caused. And it invariably refuses to do so, unless there is a " breach of an express covenant, or uncontro- verted mischief." 5 A fortiori, an injunction will not be granted, if the particular mode of working in question be shown to be not in accordance with the usual practice in the district. 6 And, of course, it will not be granted, if it be shown to involve probable danger to life. 7 1 Cf. Wheatley v. Westminster Brymbo Coal Co., 9 Eq. 551, 552 ; ante, Brymbo Co., 2 Dr. & Sm. 347 ; 9 Eq. p. 62, n. \ and other cases there 540, 553, 554. Cf. also Strelley v. cited. Pearson, 15 Ch. D. 113. 6 Abinger v. Ashton, 17 Eq. 358, 377. 2 Wheatley v. Westminster Brymbo It was shown to be the common prac- Coal Co., 9 Eq. 554. tice in Cheshire, the district in ques- 3 Abinger i>. Ashton, 17 Eq. 358,371. tion, to work a lower seam before 4 lb. working a higher. 5 See Anon. Amb. 209, per Lord " Abinger v. Ashton. u. *. 373, 374, Hardwicke ; Wheatley v. Westminster 375. SECT. 3.] WORKING. 2'4i c. Instroke — Sinking Pits or Shafts, (a) Generally. The right of instroke is the right of conveying minerals from Meanings of a demised mine to the surface through a pit or shaft in an ad- an d "out- joining mine. It is the converse right to that of outstroke ; stroke - which is the right of conveying minerals from an adjoining mine to the surface through a pit or shaft in the demised mine. 1 Where the lessee of a mine is also the lessee, or is the owner, of Importance of an adjoining mine, the importance to him of possessing the stroke, right of instroke is obvious ; having regard to the expense which usually attends the sinking of a pit or shaft. It may, on the other hand, be extremely important to a lessor to be en- titled to compel his lessee to sink a pit or shaft upon the demised premises. He may thus best ensure that, during the demise, the mine shall be worked to the fullest advantage ; or that, at the end of the demise, it shall, in the event of any minerals then remaining unworked, be delivered up in a condition as favourable as possible to the continuance of the working. If he is not so entitled, the lessee will, if in a position to do so, probably work by instroke ; and may, if not in such a position, prefer leaving the mine altogether unworked to undergoing, before working, the expense of sinking a pit or shaft. (/3) Instroke. The lessee of a mine is entitled, prima facie, to work and Leasee entitled, get the minerals by instroke. 3 And he will not be deprived of '{'', Vi'JiVt of iri- the right to work by instroke, unless by clear and specific provi- stroke - sions. Thus, if he has obtained powers to make communications between the demised mine and adjoining mines, for the express purpose of working the adjoining mines by outstroke, and to work by outstroke accordingly ; and, by means of these same communications, to work the demised mine by instroke ; and has covenanted not to open any communications between the 1 See infra, Sect. 4, (a). 1 Lewis v. Fothergill, 5 Ch. 103 ; Jegon 2 Whalley v. Eamage, 10 W. R. 315 ; v. Vivian. G Ch. 712, 755, 756. 2,32 LEASES — [chap. XI. demised mine and the adjoining mines, and not to carry any minerals along any communications between the demised mine and the adjoining mines, except in pursuance of his powers; he cannot be prevented from making communications into an ad- joining mine for the purpose of working, and by means thereof working, the demised mine by instroke. And it is immaterial, that such communications may not have been made for the primary purpose of working the adjoining mine by outstroke ; or that, from the absence of shafts in the demised mine, it may never be possible to work the adjoining mine by outstroke. If, through breaches made in the barrier between the demised mine and an adjoining mine he is entitled to carry the minerals of the demised mine, he is entitled to make the breaches for that very purpose. 1 However, his position may be different, if he is acting with mala fides, or unskilfully. 2 (y) Sinking Pits or Shafts. 5 Lessee not Consistently with the principle, that a lessee is entitled, fade, to sink prima facie, to work by instroke, 4 he is not bound, prima facie, pits or shafts. m or( j er to g e ^ £ ne minerals, to sink pits or shafts. And he And, to bind ... . .. , ... . • i • • in i him, intention will not incur liability by not sinking a pit or shaft on the mere shown" 6 ° learIy g romi d that, at the date of the lease, he was not the owner or lessee of any adjoining mine : 5 or that both lessor and lessee contemplated as possible or probable the sinking of pits or shafts : 6 or that the lessee is empowered to sink a pit or shaft, and to bring the minerals to the surface, and to make roads, and to carry the minerals over the surface : 7 or that he has cove- 1 James v. Cochrane, 8 Exch. 556, 3 As to the right of a lessee (as distin- 574, 575 : cf. Lewis v. Fothergill, 5 Ch. guished from the obligation upon him) 108, 109. The decision upon this point to sink pits or shafts, see ante, pp. 227, was assisted by the decision, which had 228. been previously come to, that the lessee *• See ante, p. 231. was entitled to use the demised mine 5 Jegon v. Vivian, 6 Ch. 742, 756. as a thoroughfare, and not merely as a fi James v. Cochrane, 7 Exch. 177 ; 8 terminus : see post, Chap. XVI., Sect. Exch. 556, 577 ; Jegon v. Vivian, 6 Ch. 2, b. (y). It is nevertheless a strong 754, 756. decision : see and consider the argu- ' Lewis v. Fothergill, u. s. 104 ; ment. Wheatley v. Westminster Brymbo ? See Lewis v. Fothergill, v, s. 106, Coal Co. 9 Eq. 539, 546 ; Jegon v. 110. Vivian, v. s. 755. SECT. 3.] WORKING. 2.'io nanted not to sink a pit or shaft except in particular parts of the demised property : x or that the lease contains a provision, that the payment of a dead rent shall not commence for a specified number of years, if, within that time, the necessary steps are taken, bond fide, to win and work : 2 or that, by not sinking a pit or shaft, much of the mineral will necessarily be wasted : 3 or that, if, instead of sinking a pit, the mine is worked by instroke, it will be exposed either to the peril of the water naturally accumulating within its own area being insufficiently drained, or to the peril of receiving an influx of water from the adjoining mine ; no injury from either cause having actually taken place : 4 or that the lessee has covenanted to work " un- interruptedly, efficiently, and regularly according to the usual or most approved practice ; " and that the working cannot be carried on to the fullest advantage unless a pit or shaft is sunk : 5 or that he has covenanted to work in a " proper and workmanlike manner ; " at all events in districts where working by instroke is usually practised : G or that the lease reserves the liberty of entering the demised property to view its condition ; and that no entry can be made unless a pit is sunk : 7 or that it contem- plates the surrender, at its expiration, of the demised property in such a state as to allow of the lessor working the remaining minerals ; and that such working cannot immediately, or cannot profitably, be undertaken, if a pit has then to be sunk to reach them. 8 A fortiori, he will not incur such liability where the lease empowers him to work by outstroke ; any argument founded upon injury to the demised property by breaking the barrier being, in such a case, inapplicable. 9 The necessity, under these circumstances, of requiring a lessee to specifically covenant tu 1 Wheatley v. Westminster Brymbo Jegon v. Vivian, u. s. 756. The evi- Coal Co., 9 Eq. 551, 552. dence of experts will be admitted to 2 Lewis v. Fothergill, 5 Ch. 103. Cf. explain the local meaning of such a James v. Cochrane, 8 Exch. 556. As covenant : Lewis v. Fothergill, it. .v. to "winning," see ante, pp. 219,222, 107,110. 223. 7 Jegon v. Vivian, u. s. 742 : see the a Jegon v. Vivian, 6 Ch. 742 : see argument, the argument. 8 Jegon v. Vivian, u. s. 754, 755, 7.~>< - >. 4 Lewis v. Fothergill. u. s. 757. 5 Wheatley v. Westminster Brymbo 9 See Lewis v. Fothergill, v. s. 108, Coal Co., v. s. 538, 5 IS, 549. 109. Cf. James v. Cochrane, v. s. ; 6 Lewis v. Fothergill.. >/. s. 103, 110 ; ante, p. 232. 2M LEASES- [CHAP. XI. But he will be bound, if he has cove- nanted. sink pits or shafts, if such be the intention, is obvious. Where a lessee has entered into a specific covenant to sink a pit or shaft, he will be liable for not performing it ; although its per- formance may involve, so far as the actual working of the mine is concerned, an useless application of time, labour, and ex- pense. 1 The measure of damages for non-performance is the expense the lessor would be put to in himself making the pit or shaft. 2 Lease should contain pro- visions as to support for surface. d. Surface or Mine Protected or Deprived of protection against Damage. (a) Surface. Provisions, either preserving support for, or enabling it to be withdrawn from, a surface should be clear and unambigu- ous. In Hodgson v. Moulson* a very ambiguous covenant as to support was construed in favour of the lessor. There lessees covenanted to work in a workmanlike manner, and to "leave pillars of the solid stone of sufficient strength to support the roofs of the said mines, and to get and clear the said stone in the usual and best way in which the same is done in other works of a like character in Clayton." They also covenanted to pay for surface damage ; and, at the expiration of the term, to fill up the pits and shafts. They left pillars of sufficient strength to enable the mines to be worked properly and in the manner usual in Clayton, but not of sufficient strength to prevent the surface from subsiding. They were 1 Jervis v. Tonikinson, 1 H. <.V N. 195. Cf. James v. Cochrane, 7 Exch. 170. 2 See Pell v. Shearman, 10 Exch. 766 : see p. 769. The defendants in this case covenanted with the plain- tiff, that, if he would surrender a lease to his lessor, they would within two years, or within such period as should be agreed in a new lease, which the lessor had agreed to grant to them, sink upon the demised premises a pit to the depth of 130 yards in search of coal ; and, in case a marketable vein of coal should be reached, pay to the plaintiff £2,500. The plaintiff, having sued the defendants for breach of covenant, gave evidence to show, that, if the defendants had sunk the pit, marketable coal might have been found. It was held, that the plaintiff was entitled to more than nominal damages, and that the true measure of damage was the amount which he had lost by being deprived of the opportunity of finding marketable coal. 3 18 C. B. N. S. 332. SECT. 3.] WORKING. 235 held liable on the covenant. It was observed, that the lease contemplated the working out of the whole of the stone during the term ; and that it could not, therefore, have been the sole object of the covenant to compel such a working as would enable the lessor to continue it after the expiration of the lease. 1 Where a lessee, contrary to his covenants, causes the fall of fences bounding the demised land by excavations under them, he may be compelled by mandatory injunction to restore them to their former condition. 2 The ordinary mode of providing, that the surface shall be supported, but that the mineral owner shall not, at the same time, be obliged to leave the whole of the under- lying minerals unworked, is to require him to leave unworked pillars of the minerals in specified places and of specified dimen- sions, 3 or to substitute artificial props according as the natural props are removed. 4 As will be hereafter 5 seen, if a mineral owner leaves pits or And as to shafts unfenced, and horses or cattle belonging to the overlying surface owner are thereby injured, the mineral owner will, in general, be prima facie liable. Express provisions as to the fencing of pits and shafts should, however, in all cases be inserted. It will sometimes be proper for a lessor to stipu- late, that the mineral owner shall fill up pits and shafts when they are no longer w r anted, and restore the surface. 6 And provision should in all cases be made as to compensating And as to coui- a lessor or his tenants for damage done to the crops bv the P ensatl0 ° for ° r J damage to mineral owner carrying minerals over, or depositing rubbish upon, cro P s » &c - or otherwise using, the surface ; and for damage or inconvenience caused by smoke issuing from furnaces used by the mineral owner in his workings. A covenant to make such compensa- tion runs with the land ; 7 and, if entered into by two or more 1 In cases like Hodgson v. Moulson, 4 As to the construction, in a Scotch the surface owner is, however, prima instrument, of restrictions on carrying facie, entitled to support indepen- workings near houses, see Gillespie v. dently of any covenant : see post, Russel, 9 Sess. Cas. (Ser. 3), H. L. 130. Chap. XV., Part 0., Sect. 1, a (j8). 5 Post, Chap. XIV., Sect. 3, o (0). 2 Newton v. Nock, id L. T. N. S. 6 See Wilson v. Waddell, 2 App. 197. Cas. 100. 3 See, as to the necessity of this, ? Norvalv. Pascoe, 34 L. J. Ch. 82, s I. Lewis v. Marsh. 8 Ha. 99. 236 LEASES [chap. XI. persons, jointly and severally, will bind an assignee of any of them. 1 Lease should contain pro- visions as to support for mine. And as to dangerous gases. And as to drowning. (/3) Mine. As in the case of the surface, 3 provisions securing support for the mine should be free from ambiguity. However, a covenant by a lessee, that, at the determination of the lease, he will " leave " sufficient pillars for the support of the roof, and for preventing thrusts and creeps, precludes him from, in the meantime, removing the pillars. 3 Where mines were in mort- gage ; and the mortgagor by arrangement with the mortgagees demised the mines to a trustee for the mortgagees ; and the lessee covenanted not to remove the pillars of the mines with- out the consent of the mortgagor and his assigns, or other the person or persons for the time being entitled to the premises ; it was held, that the covenant was for the protection of the equity of redemption, and that the mortgagees had no power to consent to the removal. 4 Where an overlying and an under- lying seam are comprised in the same lease, and they are sepa- rated by a narrow interval, it is frequently desirable, in order to secure support for the overlying seam, to provide, that the underlying one shall not be worked in advance. The necessity of framing every such provision in the form of a negative covenant has been already adverted to. 5 A lessor should, in many cases, require the lessee to covenant not to do or leave undone any act whereby the demised mine may be rendered obnoxious to dangerous gases from an adjoining mine. There can be no doubt, that a lessee will not, independently of a covenant (if any) entered into by him not to allow the demised mine to be drowned, or to work the demised mine in a proper and workmanlike manner, be allowed to work in such a way as to probably cause the mine to be drowned. 6 The 1 Norvalv. Pascoe, 31 L. J.Ch. 82,*81. 2 Ante, p. 231. 3 See Mostyn v. Lancaster, 51 L. J. Ch. 696, 701, 702. 4 lb. 696 : affirmed 31 W. R. 686. 5 See ante, p. 230. The lessee of a mine may sometimes be disabled from depriving it of support, if the rights of the lessee of a superjacent mine would be affected : see Glasgow v. Hurlet Alum Co., 3 H. L. C. 25, cited ante, p. 228. 6 See Lewis v. Fothergill, 5 Ch. 110 ; and cf. Jegon v. Vivian, 6 ib. 756 : see also Anon. Amb. 209 ; Hodgkinson v. Crowe, 19 Eq. 594. SECT. 3.] WORKING. £37 lessor should, however, in all cases require the lessee to enter into an express covenant not to do, or suffer to be done, any act or thing which may occasion or tend to produce the drown- ing of the mine ; and he should take care, that no provision is inserted, which may neutralise the effect of such a covenant. In Rolleston v. Jew 1 a lessee entered into such a covenant. He also covenanted to leave the lessor, at the end of the term, if he should so require, all the engines and machinery, which should have been used in and about the working, upon receiving twelve months' notice from the lessor, and being paid for the same. The lease, however, contained a proviso, that the lessee might at any time during the term, or within twelve months after its expiration, remove all the machinery and engines, unless the lessor should be minded to purchase. Fourteen years before the expiration of the term the lessee became insolvent ; and his trustees gave the lessor notice of their inten- tion to remove the engines and machinery, unless he should be minded to purchase. It was conceded by the Court, that the trustees might possibly be liable in damages, if the mine were actually drowned. 2 But it was held, that the lessor could not oblige them to leave the engines and machinery unemployed upon the demised premises until the end of the term ; 3 and that, unless he gave notice of his intention to purchase, and paid, they could not be restrained from removing them ; although such removal would occasion or tend to produce the drownino-. Independently of his liability (if any) under his covenants, a lessee, who removes a barrier between the demised mine and an adjoining mine, is prima facie guilty of waste, and may be made liable accordingly. 4 However, in this case also, the lessor should not rely upon the prima facie position. He should always require the lessee to enter into an express covenant to keep up proper barriers to protect the mine from being drowned. 5 A lessor should also, of course, require the lessee to enter into Ami as to re- pairs, 1 4 K. & J. 640. also Jegon v. Vivian, 6 ib. 758, 789 ; 2 See pp. 648, 649. and cf. Wilson v. Waddell, 2 App. Cas. 3 Cf. Beaufort v. Bates, 3 De G. F. 100. As to the effect of a covenant to & J. 381,395. '-leave" pillars, see Mostyn v. Lan- 4 Marker v. Kenrick, 13 C. B. 188. caster, 51 L. J. Ch. 696, 701, 702 ; 5 See, as to the necessity of this, ante, p. 236. Lewis v. Fothergill, 5 Ch. 108 : see 238 LEASES — WORKING- [CHAP. XI. specific covenants to repair and keep in repair. In James v. Cochrane 1 the lessee of a mine covenanted not to allow it to be overburdened by water ; and to keep the levels, drifts, and necessary staples for air clear and in good repair, order, and condition from the surface of the earth down to the levels and drifts; and to pump all water out of the mine. It was inti- mated, that suffering the workings and aircourses of an old seam of the mine, which had been partially worked, but which was being worked no longer, to remain full of water, whereby the aircourses in that seam were interrupted, was not a breach of No specific per- the covenant as to repairs. Specific performance cannot be had of a covenant to repair. 2 Nor in general can such a covenant be indirectly enforced by injunction. 3 A covenant to work in a " proper and workmanlike manner " does not mean, pri/md facie, in such a manner only as shall be most advantageous for the lessor. It means, primd facie, in such a manner as shall not be simply an attempt to get out of the earth as much mineral as can be got for the particular purpose of the lessee, regardless of any ordinary or workman- like proceeding. 4 formance as to repairs, Meaning of ' ' proper and workmanlike manner." Lessee not en- titled, 'primd facie, to right of outstroke. Sect. 4.— USER OF SUBSOIL. 5 (a) Outstroke. It has been already stated, that the right of outstroke is the right of conveying minerals from an adjoining mine to the surface through a pit or shaft in the demised mine. 6 The importance of possessing the right is obvious ; having regard to the expense, which usually attends the sinking of a pit or shaft. The lessee of amine, as such, is not entitled, prima facie, to work 1 8 Exch. 556. 2 See Flint v. Brandon, 8 Ves. 159. 3 Abingerv. Ashton, 17 Eq. 376. For provisions as to inspection, see ante, p. 225. 4 Lewis v. Fothergill, 5 Ch. 108. per Lord Hatherley. The evidence of experts will be admitted to explain the local meaning of such a covenant. ib. 107, 110. In Eadon v. Jeffcoek. I.. R. 7 Ex. 393 {per Cleasby and Martin, BB.), it was said that lessees, even in the absence of covenant, are bound to work in the usual and ap- proved mode of working in the dis- trict. As to the consequences of not making covenants several as well as joint, see Bradbume v. Botfield, 14 M. & W. 559. As to user of surface, see ante, pp. 227, 228. 6 Ante, p. 231. SECT. 4.] USER OF SUBSOIL. 239 by outstroke. His position is not within the principle formerly- laid down ; that the lessee of a mine or quarry has, speaking generally, during the duration of his interest, as absolute a right to use as he thinks proper the mine or quarry, the containing chamber, and the space or vacuum which the working of the minerals creates, as if he were the owner in fee. 1 In working by outstroke the acts of the lessee of a mine, as such, are not confined within the ambit of the solum demised to him. He of necessity operates, or in part operates, in land not comprised in his demise. Nor can he justify his operations, because he may be entitled under a grant, express or implied, 2 to use the land in question as a way for the conveyance of the demised minerals. The grantee of a right of way for the conveyance of minerals from a particular mine cannot, prima facie, use the way for the conveyance of minerals from any other mine. 3 Accordingly, if a lessee desires to exercise the right of working by outstroke, he should expressly stipulate for the right to do so. And if he works by outstroke without having the right to do so, the lessor may obtain compensation by way of wayleave rent upon the minerals carried through the demised mine. 4 (/3) Ventilation of adjoining Mine. A lessee is entitled, 'prima facie, to use, or permit to be used, But is entitled the demised mine for the purpose of ventilating an adjoining rentiLtion! mine. 5 If, therefore, it is desired to deprive him of the right to do so, or to make his exercise of it subject to the payment of an air- leave rent, express provisions for that purpose should be inserted. (y) Drainage of adjoining Mine. A lessee is not entitled, prima facie, to artificially conduct Or drainage, water from an adjoining mine into the demised mine. 6 But a lessee is entitled, 'prima facie, to permit the demised mine to 1 Ante, pp. 70, 71. 10 Sess. Cas. (Ser. 3) 901. Similarly 2 See. as to ways of necessity, post, the grantee of the right is not entitled Chap. XVI., Sect. 3. to exceed it : ib. 3 See post, Chap. XVI., Sect. 2, b ($). 5 Jegon v. Vivian, 6 Ch. 758, 759. 4 See ib., Sect. 6, b. The Scotch 6 See ib. 758. See also post, Chap. law is the same : Mungle v. Yonng. XVI T., Part C, Sect. 1, «. •i\o LEASES — ASSIGNMENT [chap. XI. receive, by the natural action of gravitation, the drainage of an adjoining mine. 1 And if he makes, or permits to be made, in the adjoining mine any conduits or channels, not for the purpose of artificially conducting water through the demised mine, but in the ordinary and proper course of working the adjoining mine ; and water flows along such conduits or channels into the demised mine; he is, 'prima facie, free from liability. 2 If, therefore, it is desired to deprive him of his rights in those respects, or to make his exercise of them subject to the payment of a waterleave rent, express provisions for that purpose should be inserted. Where a lessee covenants to leave proper and sufficient barriers in the demised mine against all adjoining mines, and to prevent the draining or laying dry any such adjoining mines, he will, if necessary, be compelled, by man- datory injunction, to perform his covenant. 3 Sect. 5.— ASSIGNMENT. Lessor should It will, in most cases, be proper for a lessor to require the stipulate for . covenant lessee to covenant, that he will not assign or underlet without ment S assign " the previous leave in writing of the lessor. 4 A mere equitable deposit of a lease is not a breach of a covenant not to assign without license. 5 An account probably lies against the equitable owner of a lease, who has entered into possession and worked. Ac- cording to some decisions this was so, even before the Jud. Acts : on the ground, either that he had worked under the authority of the lease, and was subject, therefore, to the pay- ment which it imposed ; or that he must be treated as a tres- passer, and was liable to account as such. 6 But there were decisions of more authority directly to the contrary. 7 Account against equit< able owner. 1 Jegon v. Vivian, 6 Ch. 758. 2 lb. See also i>ost, Chap. XVII., Part C, Sect, 2, a (/8). 3 Mexborough v. Bower, 7 Beav. 127. 4 It is sometimes convenient to re- strict the covenant by providing, that it shall not extend to the case of re- sponsible tenants : see Whitehead v. Bennett, !) W. K, 62fi. 5 Bowser v. Colby, 1 Ha. 109, 138. 6 See Wright v. Pitt, 12 Eq. 408, 417. For the form of the order, see p. 417. See also Clavering v. Westley, 3 P. Wms. 402 ; Gt. W. R. Co. v. Rous, L. R. 4 H. L. 650. < Walters v. North Coal Co., 5 De G. M. & (i. fi2() ; Cox v. Bishop, 8 ib. 815. SECT. 6.} DETERMINATION. 241 Sect. 6.— DETERMINATION. 1 a. Forfeiture. A clause is usually inserted, providing, that, in the event Proviso avoid- of the lessee making default in payment of the rent, or in breach of performance or observance of the other covenants or pro- covenant - visions of the lease, the lease shall be absolutely void. Where a lease contains such a clause, the clause is considered to be inserted for the benefit of the lessor only, and not for the benefit of the lessee. 2 Subject to the provisions of the Act 44 & 45 Vict. c. 41, the lessor may, on the happening of the event in question, pronounce the lease to be void or not, at his option. 3 And the lessee will not, on the happening of the event, be allowed to insist, that, by reason of his previous payment of rent, he has become a tenant from year to year ; 4 or be allowed, in an action against him for subsequent breaches of covenant, to insist, that the lease has been already avoided. 5 On the other hand, even independently of those provisions, the lessor must, on the happening of the event in question, do some act showing his intention to avoid the lease ; and cannot, without doing such act, treat the lessee as a mere trespasser. 6 Where a lease con- tained a proviso avoiding it, if the demised mine " should stop or cease working at any time two years," it was intimated that, to preserve the lease, the working must be bond fide, and not collusive or fraudulent. 7 An action to recover possession will lie for mines as well as for surface property. 8 However, the Act 44 & 45 Vict. c. 41, provides, that a right Conv. Act, 1881 of forfeiture of a " mining lease " shall not be enforceable by action or otherwise, unless and until the lessor serves on the lessee a notice specifying the breach complained of; and, if capable of remedy, requiring the lessee to remedy it ; and, in 1 As to notices to quit under Irish 4 Doe v. Bancks, u. $,, 401. holdings, see 39 & 40 Vict, c. 63, cited 5 lb. ante, p. 65. 6 Roberts v. Davey, v. s. : see also 2 Doe v. Bancks, 4 B. & Al. 409 : Bowser v. Colby, 1 Ha. 130, 131. Roberts v. Davey, 4 B. & Ad. 664. < Doe v. Bancks, u. s., 403. 3 Doe v. Bancks, v. s., 401 ; Muskett * Seepost, Chap. XXII., Sect. 1. a. r. Hill. 5 B. N. C. 694. 242 LEASES — [chap. XI. any case, requiring the lessee to make compensation in money ; and the lessee fails within a reasonable time to remedy the breach, if capable of remedy, and to make reasonable compensa- tion. And the lessee may, (either in the lessor's action or in his own), apply to the Court for relief; and the Court may grant or refuse it, as it thinks fit ; and, in case of relief, may grant it on such terms as it thinks fit. But these provisions do not extend to a clause against the assigning, underletting, parting with the possession, or disposing of the land leased ; or to a clause for forfeiture on bankruptcy, or on the taking in execution of the lessee's interest ; or to a clause for allowing the lessor to have access to or inspect books, accounts, records, weighing machines, or other things, or to enter or inspect the mine or the workings thereof. And they do not apply in the case of non-payment of rent. 1 The notice required to be served is sufficiently served, if left for the lessee at the office or counting-house of the mine ; or if sent there by post in a registered letter addressed to the lessee by name, and such letter is not returned through the post-office undelivered ; and service is deemed to be made at the time when the registered letter would in ordinary course be delivered. 2 Delay. And, having regard to the fluctuating character of mining property, the lessor must in all cases be prompt in enforcing his right of forfeiture. 3 Relief within And the lessee may, at any time within six months after execution, obtain relief against forfeiture for a breach of covenant to pay rent ; upon paying the rent and arrears and all costs of the lessor. 4 And he may equally obtain relief, whether the lease contains a mere power of re-entry on non-payment, or a proviso that in that case the lease shall be void. 5 1 See s. 14. tion. Holdsworth v. Brand's Trustees, 2 See s. 67. For the meanings of 2 Sess. Cas. (Ser. 4), 683. As to damages rent and mining lease under the Act. for not giving up possession, and as to see ante, p. 160, n. 1 . the lessee having a reasonable time to 3 Bowser v. Colby, 1 Ha. 139. give up possession, see S. C. 3 ib. 304 ; 4 Ib. 109. 4 ib. 369. A lease is frequently made 5 Ib. A lessor (Scotland) reserved avoidable on the bankruptcy of the a right to forfeit, if dissatisfied with lessee. For a Scotch decision on such the working. He was held not bound a clause, see Glass v. Haig, 4 Sess. Cas. to state the grounds for his dissatisfac- (Ser. 4), 875. six months. ECT. 6.] DETERMINATION. 24,3 b. Surrender. The lessee should, if possible, protect himself against losses Lessee should in respect of dead rent, by stipulating for liberty to surrender liberty to sur- the lease, in the event of the mine becoming exhausted ; or render - becoming incapable, in consequence of fire, water, or other insuperable accident, of being worked. 1 And he should take care, that the stipulation is not affected by the other por- tions of the instrument. A lease contained numerous cove- nants by the lessees as to the mode of working. It then provided, that, if the lessees should give notice of their desire to give up possession before the end of the eighth year of the term, then, "all arrears of rent being paid, and all and singular the covenants " on the part of the lessees having been performed, the lease should be void ; " but, nevertheless, without prejudice " to any remedy to which " any of the parties " might be entitled for breach of any of the covenants. It was, (notwith- standing the sub-proviso), held, that the performance of all the covenants by the lessees was a condition precedent to their right to determine. 2 And in a lease containing a stipulation, that the rent should cease, in case the whole of the coals, so far as the same could be " fairly wrought," should be worked out before the expiration of the term, it was held, that " fairly wrought" did not refer to profit; but meant that which can be fairly and properly gotten according to mining usage without extraordinary difficulty or expense. 3 And the lessee should also take care, that the language of the stipulation expressly applies to accidents, which may have previously occurred. In a case at law before the Jud. Acts, it was held, that a stipulation defective in that respect did not free the lessee from the liability to pay rent ; although the lease was expressed to commence from a time antecedent to the happening of the accident in question, and 1 See Gowan v. Christie, L. R. 2 Sc. 901. which reversed Friar v. Grey, ib. k D. 282 ; Strelley v. Pearson, 15 Ch. 891. D. 113. 3 Griffiths v. Rigby, 1 H. See Haigh v. Jaggar, 16 M. & W. an interest : see, as to this, infra, b. 525 ; 3 Exch. 54 ; Martyn v. Williams, 250 LICENSES. [chap. xn. creates an estate in fee simple. 1 In the latter, it gives, on the death of the grantee, an estate to his executors or administrators, if the duration of the grant has been fixed, and has not then determined. 2 Indeed, it has been said, that, even if the duration has not been fixed, an estate may pass to the executors or administrators, to last as long as any minerals remain ungotten ; 3 at all events, if the grant can operate under the Statute of Uses, and the grantee has elected that it shall so operate. 4 But the proposition, even in the latter form, is doubtful. 5 And if it be well founded, the election must be made while there is the power of electing. The executor of the grantee cannot elect. 6 And whether, if the grantee had discontinued work- ing, the executor could, after a considerable lapse of time, again May be granted enter as if he were the licensee, is also doubtful. 7 A license is to persons not n , i , -> , named. frequently granted, not merely to a person or persons named simply ; but to a person named in conjunction with others not named, but described as his partners or co-adventurers. In such a case the persons not named will, equally with the person named, be entitled to exercise the license. 8 A licensee of minerals, with a grant to cany them away, is an "occupier" within the words " owner, lessee, or occupier," en- titled to give the notice mentioned in s. 78 of the Rail. CI. Cons. Act, 1845, and in s. 22 of the Water Clauses Act. 9 How- ever, a licensee, as such, not having any interest in the soil, is not rateable. 10 But a licensee in exclusive occupation of the land containing the mine ; or of buildings, machinery, and roads " Occupier ' under Rail. CI. or Wat. CI. Act. Rateability. 1 H. & N. 827, 829 ; Carr v. Benson, 3 Ch. 525, 526. 1 Martyn v. Williams, 1 H. & N. 827, 829. 2 See Haigh v. Jaggar, 16 M. & W. 525, 540 ; Low Moor Co. v. Stanley Coal Co., 34 L. T. N. S. 186. 3 See Port v. Turton, 2 Wils. 170, 172 ; Atkinson v. King, Ir. R. 11 C. L. 540, per May, C.J. 4 See Haigh v. Jaggar, 16 M. & W. 525, 540 ; 3 Exch. 68, 69. * See and consider Low Moor Co. v. Stanley Coal Co., u.s. Sec also Atkin- son v. King, 2 L. R. (Ir.) 346, 350, per Christian, L.J. 6 Haigh v. Jaggar, 3 Exch. 54, 68, 69. 7 lb. 54, 69, 70. 8 See Norway v. Rowe, 19 Ves. 158, 159 ; Doe v. Wood, 2 B. & Al. 724. 9 See Mid. R. Co. v. Haunch wood, &c, Co., 20 Ch. D. 552, 561, As to these sections, see ante, p. 5, n. I3 ; p. 9. 10 See Morgan v. Crawshay, L. E. 5 H. L. 316 ; Kittow v. Liskeard,L. P. 10 Q. B. 13; post, Chap. XXIII.. Sect. 4 c Cf. R. v. St. Austell. 5 B. 6 Al. 693. CHAP. XII.] LICENSES. used in connection therewith ; is rateable in respect of such land ; l or of such buildings, machinery and roads. 2 b. Bare Licenses and Licenses Clothed with Interests. A bare license may be created by parol. 3 It confers no Bare license, interest in the minerals authorized to be dug even after they have been dug; 1 although it enables the licensee to maintain an action for their recovery as against a mere wrongdoer, who removes them. 5 It is revocable ; 6 at all events, before it has been actually exercised, and expense has been incurred. 7 And a conveyance by the grantor is sufficient to revoke it. 8 A license to dig minerals, coupled with a grant to carry them License clothed away, and convert them to the grantee's own use, creates interest - an incorporeal hereditament in the grantee ; 9 and may be limited either in fee simple, or for a term of years. 10 Such a license, to be legally effectual, must be created by deed. 11 But, if created by a mere written contract, followed by exercise and also followed by the expenditure of money, it has apparently been always effectual in equity. 12 Indeed, it has been held effectual, although created by a mere verbal arrangement with an agent, and although the agent exceeded his authority ; the principals having stood by and allowed the mining operations to proceed, and having only interposed when they proved suc- cessful. 13 And if created by a mere written contract for a 1 R. v. Fayle, 27 L. T. 65 ; Roads v. 10 lb. Trumpington, L. R. 6 Q. B. 56. » Wood v. Leadbitter, u. s., 845, 2 Kittow v. Liskeard, 10 ib. 13. 854 ; Doe v. Powell, 8 Scott, N. R. 3 See and consider Wood v. Lead- 693, 701, 703 ; Watson v. Spratley, 10 bitter, 13 M. & W. 844, 845. Exch. 235 ; Atkinson v. King, 2 L. R. 4 See Haven, &c, Co., 20 Ch. D. 160. (Ir.) 340. Wood v. Lake (Sayer, 3). a s See Northam v. Bowden, 11 Exch. decision apparently to the contrary, 70 ; where the plaintiff had a license cannot be supported : see Wood v. to dig and remove tin, and for that Leadbitter, it. .?., 850. Cf. Smart v. purpose, but without having any in- Jones, 15 C. B. N. S. 717. terest* therein, to dig up the soil with 12 See Atkinson v. King, Ir. Rep. 11 which it was intermixed. C. L. 536, 540, per May, C.J. ; 2 L. R. 6 See Webb v. Paternoster, 2 Roll. (Ir.) 320, 335,^er Ball, C, Morris, C.J., Rep. 143, 152, per Dodderidge. J. ; and Deasy, L.J. ; Christian, L.J., dis- Wood v. Leadbitter. u. s., 844. senting. Cf. White v. Jameson, 18 i Wallis v. Harrison, 4 M. & W. 538. Eq. 303. 8 lb. 13 See Harrison v. Ames, 15 L. T. 9 Ante, p. 249. 321. •>:>•> MCKNSKS. [chap. XII. valuable consideration, an action has always lain for a breach of that contract. 1 Such a license gives to the grantee the right of property in such minerals as he gets, when by the act of oettino- he has converted them into chattels ; 2 but not before. 3 It may be assigned or demised inter vivos ; 4 but, only, so as to pass the legal interest, by deed. 5 It is capable of transmission by will, 6 or of devolution on intestacy. 7 And it is irrevocable. 8 License prima .facie non- exclusive. Rights of non- exclusive licensee. c. Exclusive and Non-exclusive Licenses. The licensee of a right to dig minerals in a particular piece of land, although empowered to carry them away, and convert them to his own use, has not, prima facie, the exclusive right to dig therein. 9 The licensor may, prima facie, himself dig in the same land ; or grant as many other similar licenses, exer- ciseable with respect to the same land, as he thinks fit. 10 And it is difficult to impute to a licensor knowledge of the extent of the licensee's intended operations, or otherwise of his objects in applying for the license ; so as to disable the licensor from him- self subsequently working, or empowering others to do so. 11 It follows, that one licensee cannot, prima facie, recover pos- session against another in respect of mines lying within the assigned limits, but not connected with the workings of the former. 13 A licensor cannot, however, sweep away from a non-exclusive licensee the whole of the benefits of the license. The rights of the parties must be reasonably construed. 13 Nor can a licensor do any act, which will defeat the known objects of a non- 1 See Smart v. Jones, 15 C. B. N. S. 717. * Doe v. Wood, 2 B. & Al. 738, 739, 711 ; Carr v. Benson, 3 Ch. 531. 3 See ante, p. 219. 4 Mountjoy's Case, Godb. 18 ; Mus- kett v. Hill, 5 Biug. N. C. 691 ; Mar- tyn v. Williams, 1 H. & N. 827. 5 See Harker v. Birkbeck, 3 Burr. 1563 ; Watson v. Spratley,10 Exch.235. 6 Mountjoy's Case, u. s. 7 Martyn v. Williams, u, s. 8 Doe v. Wood, u. s., 738 : Wood v. Leadbitter, 13 M. & W. 845, 817 ; Mus- kett v. Hill, u. s., 707. 9 Mountjoy's Case, Godb. 17 ; 1 And. 307 ; Moor, 171 ; Cheetham v. Wil- liamson, 4 East, 469 ; Doe v. Wood, u. s., 739 ; Carr v. Benson, u. s., 532, 534, 536 ; Haven, &c., Co., 20 Ch. D. 160. See also Lee v. Stevenson, E. B. & E. 510 ; Newby v. Harrison, 1 J. & H. 396. 10 lb. 11 Carr v. Benson, u.s., 534: cf. Jones, v. Reynolds, 4 A. & E. 805, 808. 12 Doe v. Wood, u. s., 721. 737. 739. 13 Carr v. Benson, w. *•., 534, 535. CHAP. xn.J licenses. 253 exclusive licensee in applying for his license. 1 And, if a non- exclusive licensee has taken possession of a particular mine, and has actually opened and worked it, he is probably entitled to recover possession against any person who ousts him; 2 at all events, if he is entitled to the exclusive occupation of the soil containing the mine. 3 Indeed he is probably entitled to recover possession, even if he has only taken actual possession of a particular mine. 4 And the taking actual possession of and working one of several seams comprised in the same grant is the constructive possession of the others. 5 However, it seems impossible, by merely striking into a particular seam, to acquire possession of it ; at all events, if it is extensive, and runs through a considerable district, or through several collieries. 6 And it is clear, that, in order to take possession of a seam, something- more must be done than clearing out an old pit which has not yet reached the seam; 7 however great the expense of so doing may be, and however obvious the reference of the expenditure may be to working the seam. 8 As against a mere trespasser, a non-exclusive licensee's rights are probably larger than as against another licensee. 9 The desirability, under the above stated circumstances, of Exclusive expressly obtaining an exclusive license, if such be the intention, license - is obvious. An exclusive licensee has not, any more than a non-exclusive, any interest in the soil ; or, before the actual digging, in the minerals authorized to be dug. 10 An exclusive licensee may recover possession against any person, who ousts him ; n and may maintain trespass against any person, who encroaches on his workings. 12 See also Lee v. Stevenson, E. B. k E. Harrison, u. s., 395 ; Carr v. Ben- 510 ; Newby v. Harrison, 1J. & H. 397. son, u, s., 531, 533. Cf. Northarn v. 1 Carr v. Benson, 3 Ch. 525, 532. Bowden, 11 Excb. 70, cited ante, p. 2 Doe v. Wood, 2 B. & Al. 737 : see 251. Cf. also Low Moor Co. v. Stanley Koads v. Trumpington, L. R. 6 Q. B. 64. Coal Co., 34 L. T. N. S. 186. 3 Roads v. Trumpington, it. s. 10 See Doe v. Wood, 2 B. & Al. 739 : 4 Carr v. Benson, u. s., 534. see ante, p. 249, 5 Sue Low Moor Co. v. Stanley Coal u Even a non-exelusive licensee Co., 33 L. T. N. S. 436 ; 34 ib. 186. may frequently do so : see this page, 189 ; ante, pp. 41, 42. sup. Carr y. Benson, u. s. 12 Harker v. Birkbeck, 3 Burr. 1556 ; 7 lb. Wilson v. Mackreth, ib. 1824 ; Port v. 8 lb. 535. Turton, 2 Wils. 172; R. v. Fayle, 27 9 Doe v. Wood. u. s., 742 : Newby v. L. T. 65 ; Low Moor Co. v, Stanley Coal 254 LICENSES. [chap. XII. Uenerally. Rent. Account. Covenants running with laud. Distress. Re-entry. d. Usual Provisions. Many of the usual provisions of a mining lease are applicable to a mining license ; and with similar consequences. Payments agreed to be made in respect of a license are in the nature of rent. 1 As in the case of a lessor, 3 a licensor was always entitled, even before the Jud. Acts, to a remedy in Equity for an account ; and that irrespectively of whether he was also entitled to an injunction. 3 The equitable assignee of a license stands in a similar position, as regards accounting, to that occupied by the equitable owner of a lease. 4 A covenant by a licensee to make compensation for surface damage, or to repair the mine, runs with the land; 5 and, if entered into by two or more persons jointly and severally, will bind an assignee of any of them. 6 A power of distress is inapplicable to the subject- matter of a license as such ; and should be expressly provided for, if such be the intention. 7 A proviso for re-entry is also inapplicable to the subject- matter of a license as such. 8 Its insertion in the grant is never- theless frequently of use. For, under a license, works may be erected, and corporeal possession had, which it may be com- petent to the grantor to resume. 9 Where the grant of a license contains a proviso avoiding it on breach of covenant, the proviso is, as in the case of a lease, 10 considered to be inserted for the benefit of the grantor only, and not for the benefit of the licensee. 11 Subject to the provisions of the Act 44 & 45 Vict, c. 41, the grantor may, on the breach, pronounce the grant to be void or not, at his option. 12 However, even independently of those provisions, he must, on the breach, do some act showing Co., 33 L. T. N. S. 436, 444 ; affirmed, 34 ib. 186. 1 Ex parteHsLTikej,! Mont. &M. 247. 2 Ante, p. 226. 3 See Wright v. Pitt, 12 Eq. 408. 4 See ante, p. 240. See Wright v. Pitt, u. s. : for the form of the order, see p. 417. 5 Martyn v. Williams, 1 H. & N. 817 ; Norval v. Pascoe, 34 L. J. Oh. 82. In Martyn v. Williams, a cove- nant to repair works was held to be infringed by not repairing certain pit-pans and levels : see p. 826. 6 Norval v. Pascoe, n. s. I See Ward v. Day, 4 B. & S. 358. 8 Roberts v. Davey, 4 B. & Ad. 664, 672. 9 Doe v. Wood, 2 B. & Al. 740. 10 Ante, p. 241. II Roberts v. Davey, v. s., 664. 671, 672. li Muskett v. Hill, 5 Bing. N. C. 61)4 ; S. C. 7 Scott, S55. CHAP. XII. LICENSES. 255 his intention to avoid the grant ; and cannot, without doing- such act, treat the licensee as a mere trespasser. He may not, it is true, be able to actually enter, as in the case of a lease ; or to do more than give notice of the avoidance. But such notice he should give. 1 And, independently of those provisions, what- ever may be the terms of a proviso for re-entry, they should be strictly pursued. Where the proviso was, that the grantor might, on breach of covenant, avoid the grant by giving the licensee notice of the avoidance ; and the notice actually given was, that, unless the covenant was thenceforth observed, the grant would be avoided ; it was held, that this was an insuffi- cient notice. 3 And the provisions of the Act 44 & 45 Vict. c. 41, restricting the right of forfeiture, 3 apply to mining- licenses ; a '•' mining lease " under the Act including a license. 4 And the acts of the grantor may show an intention on his part to waive a forfeiture. And where a grantor attempted (although illegally) to levy a distress, and afterwards entered into nego- tiations to grant a new license on the expiration of the existing one, it was held, that such an intention was sufficiently shown. 5 However, the exercise of a right of re-entry may sometimes be inferred from the acts of the grantor, where those acts would otherwise have been wrongful. 6 For a wrongful re-entry the licensee may bring an action. 7 e. Construction of Doubtful Instruments. In Daniel v. Grade, 8 the proprietor of a house and of a marl Grant held pit and brick mine demised the house by an unwritten agree- i ease> ment to the plaintiff from a day named ; and it was at the same time agreed without writing, that the plaintiff should take the marl pit and the brick mine, and should pay quarterly, at the 1 Roberts v. Davey, 4 B. &; Ad. 664, Scotland a licensee, who had been 671,672. made liable for flooding an adjoining 2 Muskett v. Hill, 5 Bing. N. C. 694. mine, was held disentitled to an in- 3 See ante, pp. 241, 242. demnity from his licensor ; but it 4 See ante, p. 160, n. '. was intimated, that, if he had been 5 Ward v. Day, 4 B. & S. 337 : 5 ib. a lessee, his position might have been 359. different : Brand v. Bell's Trustees, 6 Doe v. Wood, 2 B. & Al. 724. 1 1 Sess. Cas. (3rd Ser.) 42. ~< lb. Muskett v. Hill. u. s. In 8 6 Q. B. 145. 256 LICENSES. [chap. XII. Grants held to create licenses. Other diffi- culties of construction. usual quarter days, 8d. per solid yard for all the marl that he got, and Is. 8d. per thousand for all the bricks that he made. It was held, that the agreement for the marl pit and the brick mine was a demise from year to year. 1 On the other hand, in Cheetham v. Williamson, 2 a covenant with, and grant to, a person, that it should be lawful for him, his heirs and assigns, at all times to enter upon certain lands to search and dig for coal, and to take and carry away the same to his and their own use, was held to create a license only. And the mere fact that, by the same instrument, the licensor had derived bis interest from the licensee, was held immaterial so far as respected the construction of the instrument. 3 So in Doe v. Wood. 4, There a grant was made to A., his partners, fellow-adventurers, executors, administrators, and assigns, of free liberty to dig for tin and all other metals throughout certain lands, and to raise and dispose of the same to their own use, and to make adits, &c, necessary for the exercise of that liberty ; excepting to the grantor liberty to drive any new adit within the lands "granted," and to convey any watercourse over the premises "granted ;" habendum for twenty-one years. The grantee covenanted to pay rent, rates, and taxes ; and to work the mines during the term. It was held, that the grant was not a lease, but only a license. 5 And, in the case of a grant for a term, the mere reservation of a right of re-entry to the grantor on breach of covenant by the grantee will not suffice to convert what would otherwise be a license into a lease. 6 In Haigh v. Jaggar 7 there was a bargain and sale of the coal under certain closes to three people, their executors, adminis- trators, and assigns ; with provisions, that, from and after the commencing of the digging and sinking any pit or shaft for the sale of the coal, the grantees should have liberty of getting selling, winning, and working, for any term of years computed 1 Cf. Stoughton v. Leigh, 1 Taunt. 402, 409. 2 4 East, 469. 3 See also Mo'untjoy's Case, Godb. 17; 1 And. 307 ; Moor, 174. 4 2 B. & Al. 724. 5 See also Norway v. Howe, 19 Yes. 158 : Muskett v. Hill, 5 Bing. N. C. 706, 707 : and cf. Kittow v. Liskeanl. L. R. 10 Q. B. 7, 13. 6 Doe v. Wood. 2 B. «Sc Al. 724. A proviso for re-entry is frequently in- serted in a license : ante, p. 254. Cf. L. & N. W. R. Co. v. Buckmaster. L. R. 10 Q. B. 444, 447. ' 16 M. & W. 525 : 3 Exch. 54. CHAP. XII.] LICENSES. 257 from the time when they should begin to sink, until six acres of coal should be gotten ; that at the expiration of twelve years the coal should be measured, and if six acres should not be then gotten there should be liberty to get the ungotten portion of the six acres ; and when six acres were gotten there should be liberty to get the remainder; habendum for twelve years from the 2nd Feb., 1805. It was intimated, that the instrument operated as a demise for twelve years from the 2nd Feb., 1805, and as a license after that time. However, in Low Moor Co. v. Stanley Iron Co., 1 a bargain and sale of unopened mines to a person, his executors, administrators, and assigns; not followed by enrolment or by livery of seisin, but followed by possession ; was held, in disregard of Uaigh v. Jagrjar, to create neither a lease nor a license, but only a tenancy at will. 2 In Atkinson v. King 3, a grant in these words, "I agree to allow you to sink pit for coal in B. at Is. Gd. per ton, and not to allow any one to sink on any coal you prove in the pit," was said to be a license. 4 In Ex 'parte Hankcy? A. entered into an agree- ment with B., authorising him during the then present year to dig earth and make bricks on two pieces of land, on payment of specified sums varying according to the quantity of the bricks to be made. It was held, that B.'s estate was a lease for a year. In Re Stroud? A. agreed to let and B. to hire land and premises at a fixed surface rent for the purpose of brick- making. B. was to pay 2s. per thousand for the bricks, and to make at least 4,000,000 a year, or pay rent equal thereto ; and he was not to excavate beyond the depth of eight feet without special license. It was held, that B.'s estate was either a tenancy at will or from year to year. /. Stamps. A license to get minerals of the Duchy of Cornwall for a Stamps. period not exceeding one year is exempt from stamp duty. 7 1 3-1 L. T. N. S. 186. In the Court by Christian, L.J., in the Court of below (33 ib. 436) Hr.igh v. Jaggar Appeal (2 L. E (Ir.) 346, 350). {ante, p. 256) was followed. 5 1 Mont. & M. 247. 2 This was at law. In equiiy the 6 8 C. B. 502. interest of the grantee would have ' 7&8 Vict. c. 65, s. 43. An equi- been different. table assignment of a license did not 3 Ir. Kep. 11 C. L. 540, per May, C.J. formerly require a stamp : see Harker 4 The dictum was dissented from v. Birkbeck, 3 Burr. 1563. CHAPTER XIII. Bankruptcy generally dissolves partnership. Devolution. BANKRUPTCY AND DEATH AND CONSEQUENT DEVOLUTION. a. Bankruptcy — Dissolution of Partnership — Devolution. The bankruptcy of any partner in the working of an ordinary mine or quarry, whether he is a partner in the land itself also, or a mere co-owner of the land, operates, it is conceived, as a dissolution of the partnership. And, if any subsequent working is carried on between the old partner and the trustee, it is, it is conceived, by virtue of a fresh partnership arrangement. There are, no doubt, authorities declaring that, in this respect, mining partnerships differ from other kinds of partnership. 1 But, unless these authorities are taken to apply to cost-book mines, 2 they cannot, it is conceived, be considered law. 3 It is impossible for two or more partners in a mine or quarry to defeat the policy of the bankrupt laws by providing, that, on the bankruptcy of any of them, his trustee shall not be entitled to his interest in the land, but only to his interest in the assets other than the land. 4 Person work- ing mine or quarry not necessarily trader within Irish Bank- ruptcy Act. b. Bankruptcy — Tradi ng. A person, who works mines or quarries, may be a trader in the sense that mining operations have always been regarded as a species of trade. 5 He may not, however, necessarily be a trader within the meaning of the Bankr. (Ir.) Am. Act, 1872 ; 6 1 Fereday v. Wightwick, 1 R. & My. 49 ; Ex parte Broadbent, 1 M. & A. 688. See ante, p. 137, n. \ 2 See post, Chap. XIX., Sect. 4, a, (a) ; c, (a), 03). 3 See Jefferys v. Smith, 3 Kuss. 167. Cf. Tatam v. Williams, 3 Ha. 355. 4 Whitmore v. Mason, 2 J. & H. 204. 5 See ante, p. 57, n. *, and cases there cited. 6 35 & 36 Vict. c. 58. CHAP. XIII.] BANKRUPTCY AND CONSEQUENT DEVOLUTION. 259 and it may be important to determine under what circumstances he is or becomes a trader within the meaning of that Act. The Act itself l includes in its specification of traders alum- Alum makera makers, 2 brickmakers, 3 and limeburners. 4 —brick- makers — lime The Act also includes " persons who seek their living burners. by buying and selling goods or commodities, or by the workmanship or conversion of goods or commodities." 5 The phosphate owner of a phosphate mine, who sells the phosphate, is not mme " within this description. 6 Nor is a person who digs stones from stone quarry. his own quarry, and sells them ; 7 although he may become so by purchasing stones from others, if the purchase is on an extensive scale, and he intends to carry on a trade. 8 Nor is Coal mine. a person who works a coal-mine, and sells the coal, within the description in question ; whether he has acquired the mine for 1 S. 4 ; 20 & 21 Vict, c. 60, s. 90. 2 An alum -maker was formerly held to be a trader, or not, according as he manufactured independently as a trade, or merely manufactured as a mode of enjoying the profits of his land : see Newton v. Newton, 2 Wils. 170 ; Port v. Turton, ib. 172; Watkins v. Caddel, 1 B. C. C. 17(3; Wells v. Parker. 1 T. R. 38 ; Parker v. Wells, 1 B. P. C. 515 ; Sutton v. Weeley, 7 East, 417 ; Ex parte Burgess, 2 Gl. & J. 200. 3 A brickmaker was formerly held to be a trader, if he purchased or rented land, and manufactured bricks thereout for public sale as an independent trade (Ex parte Harrison, 1 B. C. C. 173 ; Wells v. Parker, u. s.,3i ; Parker v. Wells, u.s. ; Sutton v. Weeley, u. s. 418 ; Ex parte Burgess, u. s. 199 ; Hcaue v. Rogers, 9 B. & C. 590) ; or if the produce of his land was merely the raw material of a manufacture, and was used as such (Wells v. Parker, ■u. s.) ; or if he purchased the ma- terials of his manufacture (Ex parte Gallimore, 2 Rose, 424). But he was not held to be a trader, if he merely manufactured as the most beneficial means of enjoying the profits of his land (Ex parte Harrison, u. s.\ Wells v. Parker, v. s. ; Parker v. Wells, u. s. ; Sutton v. AVeeley, u. $., 412 ; Ex parte Gallimore, w. s. ; Ex parte Bur- gess, u.s.; Heane v. Rogers, v. s.; Paul v. Dowling, 3 C. & P. 500) ; whether he had a freehold or a leasehold interest therein (Ex parte Gallimore, u.s.; Ex parte Burgess, u. s. ; Be Cleland, 2 Ch. 469) ; and notwithstanding that various ingredients were used, and that by the manufacture the earth was changed into a totally different substance (Sut- ton v. Weeley, u. .?., 447). And manu- facturing generally for sale did not, of itself, constitute him a trader, if he had acquired the land by gift or devise (Sutton v. Weeley, u. s., 446, 447. See, however, Wells v. Parker, u. s., 40). 4 The same distinction was formerly held to prevail in the case of lime- burners, as in the case of alum-makers (as to which see supra, n. -) : see Sutton v. Weeley, u. .«., 447 ; Ex parte Ridge, 1 Rose, 316 ; Ex parte Burgess, u. s., 200 ; Paul v. Dowling, u. s. 5 S. 4 ; 20 & 21 Vict, c. 60, s. 90. 6 Ex parte Schomberg, 10 Ch. 172. ' Ex parte Gardner, 1 Rose, 377 : see also Ex parte Burgess, u. s., 200. Cf. Steward v. Blakeway, 6 Eq. 481. 8 Ex parte Gardner, u. s, s 2 2G0 BANKRUPTCY AND [CHAP. XIII. that very purpose, or not. 1 And the mere facts of his buying articles, and selling them to his own pitmen, will not constitute him a trader. 2 But if he procures a particular species of coal from elsewhere on an extensive scale, to sell with his own, and so render his own marketable ; and sells them together ; he becomes a trader. 3 For, in such a case he both buys and sells. 4 Salt mine. A person who takes a lease of salt-works and brine-pits for the purpose of manufacturing salt out of the springs and rock salt on the demised premises, and who manufactures salt accordingly, and sells it, is not within the description ; although these several acts are done in conjunction with another person, and for Slate quarry, the common benefit. 5 Nor is a person, who becomes the lessee of a quarry, and works it up into slates for sale, within the description. 6 And he is not brought within it by merely selling tools and gunpowder to his workmen. 7 And, of course, he is not brought within it by a single act of selling spare iron to a Iron mine— builder to be used in buildings on the premises. 8 Nor is a person, who smelts iron or lead ore from his own mines into pig iron, and sells it, within the description ; although various ingredients are used in the smelting, and by the smelting an essentially different substance is produced. 9 But where a person not merely raises iron ore from his own mine, but purchases other iron ore on a large scale, and manufactures and sells both, he becomes a trader. 10 And if the ore bought is to the ore raised in such a proportion as that of Go or 70 to 35 or 30 per cent., the buyer becomes a trader ; notwithstanding that the ore bought may have been bought for the purpose of making the ore raised a marketable commodity. 11 Where the lessee of an iron mine purchased large quantities of pig iron, which he 1 Port v. Turton, 2 Wils. 100 ; Wells « j} ( , Oleland, 2 Ch. 466. Cf. Kent v. v. Parker, 1 T. K. 38 ; on appeal, Astley, L. E. 5 Q. B. 19, 25. Parker r. Wells, 1 B. P. C. 545 ; Ex 7 Re Cleland, u. s. Cf. Ex parte parte Broadbent, 1 M. & A. 640 ; Gallimore, u. s. Anon. Fonbl. Bk. R. 251. s ji e cleland, u.s. 2 Ex parte Gallimore, 2 Rose, 424. » See Watkins v. Caddel, 1 B. C. C. 3 Port v. Turton, u. s., 170 ; Ex parte 176 ; Sutton v. Weeley, u. s., 447. Gallimore, u. st. 10 See \y at kins v. Caddel, u. s., 178 : 4 See and consider Anon. Fonbl. Crawshay v. Maule, 1 Swanst, 523, Bk. B. 251. Cf. Sutton v. Weeley, 7 528. Cf. Wells v. Parker, u. s., 34, 39. East, 448. n Turner v. Hardcastle, 11 C. B. 3 Ex parte Atkinson, 1 M. D. & De N. S. 083. G. 300. CHAP. XIII.] CONSEQUENT DEVOLUTION. 261 manufactured into cast iron implements for the purpose of working the mine ; and sold to persons in the neighbourhood the surplus of the cast iron, which he did not require to use ; whether he was a trader or not was held to be a question of his intention. 1 The result of the law may be expressed as follows : — Result of Iaw (1.) Alum-makers, brickmakers, and lime-burners, are traders. (2.) Subject to this, the mere fact, in the case of any mine or quarry, that it has been purchased or taken on lease for the purpose of working it, and selling the produce, does not con- stitute a trading. 2 (3.) Nor does the mere fact that, by the working, a different substance is produced. (4.) Nor do the mere facts that the mine or quarry belongs to, and the working is conducted by, two or more persons in conjunction. 3 (5.) Nor do the mere facts of purchases being made on a small scale of other produce to sell with, and make marketable, the produce of the working, and of sales of them being made together. 4 (6.) But it is otherwise, if the purchases of other produce are made on an extensive scale. (7.) Whether or not there is a trading may, in doubtful cases. depend on whether the land is ancillary to the manufacture, or the manufacture to the land. 5 Similar considerations applied in England under the Bank- England. ruptcy Act, 1869. 6 But the Bankruptcy Act, 1883, abolished the distinction in England between traders and non-traders. 1 Ex parte Salkeld, 3 M. D. & De trustees of the society, who sin ml I G. 125. have " full power to sell lease get or 2 See Re Cleland, 2 Ch. 469. win" the minerals as they should 3 This was doubted in Crawshay v. think best, for the benefit of the niem- Maule, 1 Swanst. 518, 523. bers. It was held, that the winning 4 See and consider ib. 523. of the minerals was not merely sub- s See Ex parte Harrison, 1 B. C. C. sidiary to the main object of the 178 ; Wells v. Parker, 1 T. P. 34. Cf. society ; that it was a carrying on of Crowther v. Thorley, 31 W. R. 564. a business ; and that the society was. There the rules of a building society therefore, within s. 4 cf the Comp. provided, that upon the conveyance Act, 1862. of land by the society to its members. 6 » c 'ee s. 4 ; sch. 1. the mines should be reserved to the 262 DEATH AND [chap. xni. Death generally dissolves partnership. c. Death — Dissolution of Partnership. The death of any partner in an ordinary mine or quarry operates, it is conceived, as a dissolution of the partnership. 1 d. Death — Devolution? Dower. (a) Mine or Quarry. Dower may be due of mines or quarries wrought during the coverture. 3 And it is immaterial, in order that a right of dower may accrue, whether the mines or quarries were wrought by the husband, or by lessees for years under him ; or whether such lessees paid pecuniary rents, or rents in kind ; or whether the mines were under the husband's own lands, or under the lands of another person, if the husband had obtained from such other person (not a mere license, but) a grant to take the whole stratum. 4 Dower cannot be due of mines or quarries unopened 5 during the coverture ; whether under the husband's own lands, or under the lands of others; and whether such mines or quar- ries were left unopened by the husband, or by his lessees. 6 Assignment of Dower may be assigned of mines or quarries either collectively with other lands, or separately of themselves. 7 It should, it has been said, be assigned by metes and bounds, if practicable : otherwise either by a proportion of profits, or by separate alter- nate enjoyment of the whole for short proportionate periods. 8 In assigning- dower an estimate should be made of the annual value of the open 5 mines or quarries as part of the value of the estates of which the widow is dowable. 9 But it is not necessary to assign any of the open 5 mines themselves, or any portions of them. The third part in value to be assigned may dower. 1 Notwithstanding the dictum to the contrary in Fereday v. Wightwick, 1 E. & My. 49. See Tatam v. Wil- liams, 3 Ha. 355. Cf., as to bank- ruptcy, ante, p. 258. See also ante, p. 137, n. 4 . 3 It has always been necessary, that a Trill of mines should be executed with the same formalities as a will of surface property : see Port v. Turton, 2 Wils. 172. For the form of an order in an administration action for the ap- pointment of a receiver and manager of a testator's mines, see Shale v. Hod- son, Crockford v. Salmon, Set. 420. 3 Stoughton v. Leigh, 1 Taunt. 402.j * lb. 5 As to open and new mines or quarries, see ante, pp. 22 et seq. 6 Stoughton v. Leigh, u. s. ' lb. 8 lb. 9 lb. 410 : see also Hoby v. Hoby, 1 Vera. 218. CHAP. XIII.] CONSEQUENT DEVOLUTION. 263 consist wholly of land set out by metes and bounds, and con- taining none of the open 1 mines. Or any of the mines them- selves may be included in the assignment ; being specifically described, if the particular lands in which they lie are not also assigned. Or the enjoyment and perception of the profits of any of the particular mines may be divided. 2 However, at the present day dower is hardly ever actually assigned. It need hardly be said, that minerals when unsevered are Real and per- part of the mine or quarry containing them, and devolve with sentatives— it, and not as pure personal estate. 3 minerals. On the death of any tenant in common or coparcener of Co-owner. a mine or quarry, his or her share devolves as real, and not as persona], estate. 4 On the death of any partner in the Partner in working of a mine or quarry, who is a mere co-owner of the land itself, his share devolves as real, and not as personal, estate. 5 While, however, this is quite clear as a principle, its application to a particular state of facts often gives rise to diffi- culties. The parties may, for example, by the nature of their operations, leave it in doubt, whether they have not constituted themselves partners in, and altered their relations as mere co-owners of, the land. Where any such doubt arises, the test for resolving it is to be found in the answer to the question, Have the parties treated their operations as ancillary to the land, or the land as ancillary to their operations ? In the former case, their relations as co-owners of the land will not have been altered. In the latter, they will. Quarrying will frequently be found to come under the former case. Such an operation as digging out iron ore, and turning it into iron bars, will usually be found to come under the latter. 6 If two or 1 As to open and new mines or becomes, on his entering into pnrtner- quarries, see ante, pp. 22 et seq. ship with another, the property of the 2 Stoughton v. Leigh, 1 Taunt. 410, firm, and the case where it continues 411. to be the property of the original 3 Port v. Turton, 2 Wils. 172. owner, as illustrated by Hills v. 4 See Steward v. Blakeway, 6 Eq. Tarker, 7 Jur. N. S. 833 ; and Burdon 481, 482,^?- Lord Romffly. v. Barkus. 3 Giff. 412 ; 4 De G. F. & 5 lb. J. 42. For the test, whether a share 6 lb. 481, per Lord Bomilly: see also in a mining concern is, or is not, an Davies v. Games, 12 Ch. D. 813, and interest in land within the 4th sect. cases there cited. Cf. the distinction of the Statute of Frauds, see ante, between the case where land being pp. 184, 185. the separate property of one person 264 DEATH AND [chap. XIII. Ordinary partner. Trust for unJcrtakin more persons are co-owners of land, and carry on a trade as ancillary to it, and out of the undivided profits of the trade purchase other land, the purchased land will, on the death of one of them, devolve as real, not as personal, estate. 1 The share of an ordinary partner in a mine or quarry devolves, prima facie, as personal estate. 2 But, of course, his interest in land will, in case an intention to that effect be clearly indicated, devolve as real estate. 3 Mortmain Where mines or quarries are vested in trustees for a partner- iadfviduals *" sn *P or company in trust for the individual members in propor- tion to their shares, and not in trust for the undertaking generally, the interest of each member is an interest in the land, and cannot be bequeathed to a charity. 4 However, where mines or quarries are vested in trustees for a partnership or company in trust for the undertaking generally, and not for the individual members in proportion to their shares, 5 a bequest of his interest by any member is not obnoxious to the Mortmain Acts. 6 Thus, in Hayter v. Taclcer? a tes- tator bequeathed his residuary personal estate to a charity. Part of the estate consisted of shares in various mining under- takings. 8 It was in evidence, that leases of the mines in ques- tion had been granted to trustees for the undertakings; and that the shareholders had no interest in the mines themselves, but only in the profits of the working. It was held, that the charity was entitled. And, in such a case, it is apparently immaterial, whether the substantial object of the concern is a dealing with land, or whether the land is merely ancillary to a trading independent of it. Morris v. Glynn d is, no doubt, a decision to the contrary. In that case a testatrix was at the time of making her will possessed of fifteen shares in a concern, the business of which consisted of manufacturing iron obtained 1 Steward v. Blakeway, G Eq. 479 ; 4 Ch. 603. 2 Crawshay v. Maule, 1 Swanst. 508 ; Steward v. Blakeway, 6 Eq. 481. 3 See Balmain v. Shore, 9 Ves. 500. 4 See Hayter v. Tucker, 4 K. i: J. 243, 246 ; Entwistle v. Davis, 4 Eq. 5 As to the effect of which, see ante, pp. 184, 185. 6 Hayter v. Tucker, u. s. l 4 K. k J. 243. s They were conducted on the cost- book system, but this is immaterial. 9 27 Beav. 218. CHAP. XIII.] CONSEQUENT DEVOLUTION. 265 from its own estates. These estates were vested in trustees in trust for the purposes of the company ; but it could not be dis- puted, that the land was not held as merely ancillary to an ordinary trading purpose. The testatrix bequeathed the shares to a charity ; and it was held, that the gift was invalid. Morris v. Glynn has, however, since been expressly dissented from : ; and it can hardly now be considered law. 2 Shares in Irish or Scotch Irish, or Scotch, or foreign mines, are not within the policy of mines^com- the Mortmain Acts. 3 And shares in companies registered under P ames " n(ler the Comp. Act, 1862, are personal estate. 4 1362. (j3) Renders. In Barrs v. Lea, 5 certain sums payable half-} T early, and de- Real and scribed as " further consideration money," and depending on the representa- rate of working the demised mines, were, in addition to an tlves< annual surface rent, reserved to the lessor, his heirs and assigns. It was held, that, as between the real and personal representa- tives of the lessor, these sums were in the nature of rent, and passed to the heir. However, in Hatherton v. Bradburne, G A., being the owner of mines, executed a deed, by which he " sold and disposed of, and granted and conveyed " them to B. for 99 years, subject to the payment to the owner, his "executors, ad- ministrators," and assigns, of £7998 by instalments extending over the first twelve years. On non-payment, power was given to A., his " executors, administrators," and assigns, to distrain and re-enter ; and provisions were made for the consequent avoid- ance of the grant, and for relieving A., his " heirs, executors, or administrators," from any liability to repay any part of the " purchase-money " for the "minerals" sold. The deed also en- abled B. to become the tenant of the surface at a rent extending over the whole period ; and this rent and an incidental power of distress were reserved to A., his "heirs and assigns." It was held, that the unpaid instalments of the £799S were not in 1 See Entwistle v. Davis, i Eq. 272. Set. 591. 2 Cf., as to one of the tests of a 4 S. 22. trading, ante; p. 261. 5 33 L. J. Ch. 437. 3 Baker v. Sutton, 1 Keen, 234. 6 13 Sim. 599. For the form of the order, see lb. ; 266 DEATH AND [chap. XIII. Heir and re- mainderman. Apportion- ment Act. Mortmain Acts. the nature of rent, but constituted a personal debt owing by the lessees. Ore is analogous to money, and a reservation of ore or toll will go to the remainderman as money, although made payable to the lessor, his heirs and assigns. 1 The Apportionment Act, 1870, 2 applies to rents or royalties reserved at fixed periods. 3 But it does not apparently apply to royalties payable at uncertain times, and depending upon acts within the will and pleasure of the party who is to pay; such as royalties payable upon a sale of the produce of the mine or quarry. 4 Mining rents and royalties are personalty, not realty, for the purposes of the Mortmain Acts. 5 (y) Minerals or their Proceeds. Minerals or Where the tenant for life of a settled mine or cpiarry, in the their proceeds. exerc i se f ^ s right, works it, the minerals, which by the work- ing he has converted into chattels, devolve, on his death, on his personal representative, and not on the remainderman; 6 the tenant for life having made them his absolute property. 7 As 1 Campbell v. Leach, Anil). 748 : see also Basset v. Basset, id. 843. J 33 & 34 Vict. c. 35. 3 See Llewellyn v. Bous, 2 Eq. 27, a decision under 4 & 5 Will. 4, c. 22. 4 St. Aubyn v. St. Aubyn, 1 Dr. k Sm. 611. This was a decision under 4 & 5 Will. 4, c. 22, the language of which is rents, annuities, and other payments " made payable or coming due at fixed periods." The language of the Act of 1870 (33 & 34 Vict. c. 35, s. 2), is different ; being " rents, an- nuities, dividends, and other periodical payments in the nature of income." But "periodical payments" would probably receive the same construc- tion as "payments affixed periods." See, however, Set. 1267. As to ap- portionment in Scotland between an heir and an executor, see Weir v. Dur- ham, 8 Sess. Cas. (Ser. 3), 725. The proper principle, on which an appor- tionment of rent should be made, where a man dies intestate, having been the owner in fee of a mine, and the lessee for a term of the overlying surface ; and either property is value- less without the other ; and the heir- at-law and administrator are desirous that both properties should be let together to the same tenant ; is to assume the mine and the surface to have always been differently owned, and then to calculate what rent the mine owner would have to pay for the use of the surface : see Guest v. East Dean, L. B. 7 Q. B. 342 ; Kittow v. Liskeard, 10 ib. 13. Cf. Ley v. Ley, 6 Eq. 174. 5 Brook v. Badley, 4 Eq. 106. 6 Stuart v. Bute, 1 Dow, 86. 7 See ante, pp. 46, 55. See Port v. Turton, 2 Wils. 172. CHAP. XIII.] CONSEQUENT DEVOLUTION. 267 has been already seen, 1 where mines or quarries belonging to a lunatic tenant in fee simple are sold, partitioned, or exchanged, the moneys received in respect thereof, so far as they have not been applied for the benefit of the lunatic, are, on his death, considered as real estate. (5) Fixtures and Moveable Effects. Salt pans erected for the purposes of salt works by a tenant Fixtures and in fee simple, which were removeable, have been held to go to j^^ e the heir, and not to the executor ; the salt works having been necessary for the enjoyment of the inheritance. 3 It has, however, been held, that, where a tenant for life or in tail erects a fire engine to work his colliery, it will, on his death, devolve as personalty, and not go with the estate to the remainderman ; a colliery having always been considered as a species of trade. 3 The question, whether such articles as materials laid down for making waggon-ways, or such articles as fire-engines, are fixed to the freehold, and pass therewith to the heir or remainder- man ; or go to the personal representative of the party erecting them ; will sometimes be determined by the custom of the district in question. 4 1 Ante, p. 128. 90, 118. An inquiry on the subject 2 Lawton v. Salmon, 1 H. Bl. 259 n. will, if necessary, be directed, ih. As 3 Lawton v. Lawton, 3 Atk. IS, 1(5 ; to buildings and machinery erected Dudley v. Warde, Amb. 112, 114 : under the Derbyshire customs, see see also ante, p. 57, n. 2 , and other Wake v. Hall, v. s., 195, 216 ; post, cases there cited. See Wake v. Hall, Chap. XXL, Sect. 1, d. As to Scotch 8 App. Cas. 195, 210. law, see Bain v. Brand, 1 App. Cas. 762. 4 See Lowtherv. Cavendish, 1 Eden, CHAPTER XIV. NEIGHBOURS— GENERAL PRINCIPLES— NUISANCES- USER OF SURFACE OR SUBSOIL. Sect. 1.— GENERAL PRINCIPLES. Generally. It has been seen, that, where mines subjacent to a surface, and the surface, are differently owned ; whether such ownership has always been separate, or the separation has been effected by some instrument of severance ; the mines and the surface are separate tenements, and possess all the incidents of separate ownership. 1 Of course, the same principle applies, where an underlying and an overlying mineral property are differently owned. 2 And, a fortiori, it must apply, where mines are differently owned from a laterally adjacent surface ; or where two laterally adjacent mineral properties are differently owned. Where any of these states of things exists, it is important to ascertain what the mutual rights and duties of the adjoining owners are. General The most general princijDles applicable to determine the a man may use mutual rights and duties of adjoining owners are few and heVieaseT 7 " sim P^ e - " When anything is granted, all the means to attain it and all the fruits and effects of it are granted also ; and shall pass inclusive together with the thing by the grant of the thing itself, without the words cum pertineiitiis, or any such like words. Cuicunque aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potuit." 3 Upon a simple grant of mines, therefore, the power to dig them is granted ; 4 and in all other respects everything which is necessary for the fair and reasonable 1 See ante, pp. 27, 67. k B. 149 ; 8 H. L. C. 3C0 ; Smith v 2 See and consider Mundy v. Rut- Darby, L. R. 7 Q. B. 722 ; Ramsay v. land, 23 Ch. D. 81, 89, 96. Blair, 1 App. Cas. 703 ; Pountney v. 3 Shep. Touch. 89. Clayton, 31 W. R. 666. 4 lb. ; Rowbotham v. Wilson, 8 E. SECT. 2.] NEIGHBOURS— GENERAL PRINCIPLES. 2G9 enjoyment of the thing granted passes. And where, instead of mineral property being granted, it is excepted from a convey- ance of land, the same principles apply. For " what will pass by words in a grant will be excepted by like words in an exception." * And where it is not known, whether mineral property has been the subject of grant or of exception, but it is merely known that its ownership is in fact distinct from the ownership of adjoining property, similar principles apply. For it is a rule, that a man may, in general, use his property as he pleases, and make the most of it. 2 " The general rule of law in both countries 3 is, that the owner of one piece of land has a right to use it in the natural course of user, unless in so doing he interferes with some right created either by law or contract. And, as a branch of that law, the owner of the minerals has a right to take away the whole of the minerals in his land, for such is the natural course of user of minerals; and a servitude to prevent such an user must be founded on something more than mere neighbourhood." 4 It is, however, General on the other hand, a clear rule, as expressed in the maxim sic aVnanmus^ utere tuo ut alienum non lecdas, that a man must not, in the not ^i"™ lm neighbour. user of his property, do an injuria to his neighbour. 5 Where conflict of two the two principles conflict, the question arises, Which principle P nnci P ,es - shall prevail ? Sect. -2.— NUISANCES. (a) Generally. The owner of works carried on for profit by his agents is Obstructing liable to be indicted for a public nuisance caused by acts of his ° workmen in carrying on the works ; although done by them without his knowledge, and contrary to his general orders. 6 1 Shep. Touch. 100 ; Cardigan v. 4 Wilson r. Waddell, 2 App. Cas. Armitage, 2 B. & C. 207 ; Goold v. 99, per Lord Blackburn. G. W. Deep Coal Co., 12 L. T. N. S. 5 See Harris v. Ryding, 5 M. & W. 844. 73 ; Rowbothani v. Wilson, 8 H. L. 2 See Crompton v. Lea, 19 Eq. 12G : Cas. 360 ; Smith v. Darby, L. R. 7 Q. see also Rylands v. Fletcher, L. R. B. 723 ; Eadon v. Jeffcock, L. R. 7 Ex. 3 H. L. 338. 387, 396 ; Crompton v. Lea, u. s. 3 England and Scotland. 6 R. v. Stephens, L. R. 1 Q. B. 702. 270 NEIGHBOURS — [chap. XIV Sinkings or erections near highways. Fencings near highways. This principle has been applied against the owner of a quarry whose workmen threw the rubbish from the quarry into a river, whereby the navigation was obstructed. 1 Persons are bound under penalties not to sink pits, or erect steam-engines, gins, or other like machinery, within twenty- five yards from any part of a carriage-way or cart-way ; unless screened therefrom, so as not to be dangerous to passengers, horses, or cattle. 2 If an excavation is made so near to a highway as to amount to a public nuisance, and a private injury ensues, an action will lie. 3 However, the owner of an unfenced quarry, which adjoins a public road, but is not so near as to be dangerous to persons using the road in the line of the road, is under no liability to a person who deviates from the road and falls into the quarry. 4 No right to burn bricks, if nuisance created. But nuisance is a question of fact. (/3) Brick-burning. A man has no right to burn bricks on his land, although made of his own clay, if a nuisance would be thereby created. 5 And he cannot justify the nuisance by saying, that it is done at a convenient time and place, and is a reasonable user of the land ; or is pro bono publico? However, the question, whether a nuisance is created, is one of fact in each particular case. It is not, for instance, a question of mere proximity. Burnino- bricks within 48 yards, 7 or GO yards, 8 or 180 yards, 9 or 200 yards, 10 1 R. v. Stephens, L. R. 1 Q. B. 702. 2 5 & 6 Will. 4, c. 50, s. 70. 3 Barnes v. Ward, 9 C. B. 302 : see also Hounsell v. Smyth. 7 C. B. X. S. 731. 4 Hounsell v. Smyth, «. s. Cf. Blyth v. Topham, Cro. Jac. 158. As to the liability of surveyors of high- ways, in exercising statutory rights of digging materials for roads, to fill up or fence off pits, sec ante, pp. 105, 106. See, further, as to neglect to fence excavations, infra, Sect. 3, c. (£). 5 Walter v. Selfe, i De G. &; Sm. 315, 324; Pollock v. Lester, 11 Ha. 266 ; Bamford v. Turnley, 3 B. k S. 62. G Walter v. Selfe, u. s. ; Bamford v. Turnley, «. .er Willes, J. ; Dalton v. Angus, u. s., 792, jut Lord Selborne ; 809, per Lord Blackburn : see also pp. 712, 746. Cf. Birmingham v. Allen, 6 Ch. D. 292, per James, L.J. ; 297, pe r Brett, L.J. 3 Humphries v. Brogden, 12 Q. B. 745; Cal. R. Co. v. Sprot, 2 Macq. 451 ; Mundy v. Rutland, 23 Ch. D. S9. See Re Dudley, 8 Q. B. D. 93, 94, 96. 4 See Wakefield v. Buccleuch, 4 Eq. C28, 638 ; Buccleuch v. Wakefield, L. R. 4 H. L. 405. 5 See Cal. R. Co. r. Sprot, 2 Macq. 151. 6 lb. See also N. E. R. Co. r. Elliot, 1 J. & H. 152, etscq. 7 Humphries v. Brogden, 12 Q. B. 745 ; Rowbotham v. Wilson, 6 E. & B. G01. 8 Humphries v. Brogden,?/..?. ; Row- botham v. Wilson, u. s., 602. See, how- ever, Rowbotham v. Wilson, 8 H. L. Cas. 363, 364. 9 Humphries v. Brogden, «. •'.. 107, 109. As to the effect of covenants for title, see ante, pp. 210, 211. PARTS E. C.] NATURE OF RIGHT. 293 Whore a natural substance constitutes a support, the right of Right generally support is merely a right to prevent one's neighbour from actively merdyoi interfering to remove the support. If a natural support falls active illter - 11 ference. away merely through the operation of natural causes, the injured person has, prima facie, no right of action against his neighbour for his mere passive omission. 1 In such a case the person claiming the right must, if he wishes to prevent an injury, himself take the necessary steps. 2 And he may, if he pleases, enter for that purpose on the land of his neighbour.' 5 The consequences are, no doubt, different, if a natural support is removed, and an artificial support substituted, 4 and the arti- ficial support is not properly maintained. PART C— EXISTENCE OF EIGHT OF SUPPORT. Sect. 1.— NO ACTUAL OR ALLEGED CONTRACT, CUSTOM, OR PRESCRIPTION. a. Land in Natural State. (a) No Evidence an to Severance. Where land is in its natural state ; and no contract, custom, where no or prescription is available to regulate its right to support ; and gJ^J^, 83 to no evidence is producible as to the time or mode of its severance owner of land .in natural from the adjoining land, whether by reason of both lands having state Las been always separate, or of nothing being known of their owner- ^bTto sup- ship except that it was severed at some past period ; the owner i JOrt - of the former land is entitled to have it supported by the latter ; 1 See and consider Pomfret v. Girdlers' Co., u. s. Ricroft, 1 Wins. Saund. 557 ; Colebeck 3 lb. v. Girdlers' Co., 1 Q. E. D. 243. 4 Which may be done : see anfi\\i\>. 3 See and consider Colebeck v. 287, 2S8. 291 NEIGHBOURS— SUPPORT— EXISTENCE OF RIGHT — [CHAP. XV. whether the latter adjoin laterally, 1 or vertically. 2 In other words, every owner of land in its natural state has & prima facie right to support, lateral as well as vertical ; and the adjacent or subjacent owner has no right, prima facie, in order to win his minerals, to withdraw such support. Accordingly, in an action for removing support from land in its natural state, the plaintiff has never been obliged, as a matter of pleading, to allege that he was entitled to the support. 3 Grantee with exception of mines has similar right. (3) Voluntary Severance. Where a grant is made of land in its natural state, whether by way of conveyance in fee simple, or by way of lease, with an exception of the mines ; and no provision is made with respect to support ; the grantee is entitled to support as incident to his grant. 4 And of course the same principle prevails, where a 1 See 2 Rolle's Abr. 564, tit. Tres- pass (1) pi. 1 ; Com. Dig., Action upon the Case for a Nuisance (A) ; Hunt v. Peake, Job. 705. The land in the latter case was built upon ; but it was found, that, even if unbuilt upon, it would have been injured (upon which point, sec post, p. 301). See also Wyatt v. Harrison, 3 B. & Ad. 871, 876 ; Humphries v. Brogden, 12 Q. B. 711 ; Cal. R. C. v. Sprot, 2 Macq. 458 ; Bonomi v. Backhouse, E. B. & E. 636, 651 ; Backhouse v. Bonomi, 9 H. L. C. 512, 513 ; N. E. R. C. v. Elliot, 1 J. & H. 153 ; Solomon v. Vintners' Co., 4 H. & N. 597 ; Murchie v. Black, 19 C. B. N. S. 207 ; Birmingham v. Allen, 6 Ch. D. 287 ; Pountney v. Clay- ton, 31 W. R. 501, 666. 2 Humphries v. Brogden, 12 Q. B. 739. See also Harris v. Ryding, 5 M. & W. 60 ; Smart v. Morton, 5 E. & B. 30, 46 ; Roberts v. Haines, 6 E. & B. 613 ; Haines v. Roberts, 7 E. & B. 625 ; Cal. R. C. v. Sprot, 2 Macq. 158 ; Row- botham v, Wilson, 6 E. & B. 601 ; 8 E. & B. 149 ; N. E. R. C. v. Elliot, 1J. & H. 153 ; Eadon v. Jeff cock, L. R. 7 Ex. 388 ; Hext v. Gill, 7 Ch. 713 ; Atkinson v. King, 2 L. R. (Ir.) 332 ; Angus v. Dalton, 4 Q. B. D. 167 ; Davis v. Tre- harne, 6 App. Cas. 460, 466 ; Bell v. Love, 10 Q. B. D. 553 ; Pountney v. Clayton, 31 W. R. 501, 666. 3 See Humphries v. Brogden, 12 Q. B. 741, 712. See also Littledale v. Lons- dale, 2 H. Bl. 267, there cited ; Row- botham v. Wilson, 8 E. & B. 142 ; Dalton v. Angus, 6 App. Cas. 809 ; Bull. 6 L. (3rd edit.), 406, n. (*). 4 Roberts v. Haines, 6 E. & B. 652, 654, 655 ; Cal. R. C. v. Sprot, 2 Macq. 451 ; Proud v. Bates, 34 L. J. Ch. 406, 412 ; Williams v. Bagnall, 15 W. R. 275 ; Richards v. Jenkins, 17 ib. 31 ; Eadon v. Jeffcock, L. R. 7 Exch. 388 ; Buchanan r. Andrew, L. R. 2 Sc. & D. 288 ; Aspden v. Seddon, 10 Ch. 396 (n) ; ib. 1 Exch. D. 503 ; Mundy r. Rutland, 23 Ch. D. 96 ; Pountney v. Clayton, 31 W. R. 667. Cf. Bell v. Wilson, 1 Ch. 303; Hext v. Gill, 7 Ch. 714; Whidborne v. Eccl. Comms., 7 Ch. D. 379, 381. TART C, SECT. 1.] NO CONTRACT, CUSTOM, OR PRESCRIPTION. 2'J5 grant is made of mines with an exception of underlying mines. 1 And a subsequent purchaser or lessee from the grantor cannot, as against the right, shelter himself under a plea of want of notice. 2 And there is no exception from this general rule. The lord of a manor is, no doubt, entitled, prima facie, in working minerals under the wastes, to withdraw support from the sur- face ; provided he leaves sufficient common for his commoners. 3 But the lord has himself the property in the surface of the wastes, as well as in the underlying minerals. 4 And, prima facie, there is no limit to the exercise of his rights except that he should leave a sufficiency of common. 5 On similar principles, where a lease was made of mines, with an exception of under- lying mines, it was held, that the lessor could not work the underlying mines in such a way as to withdraw support from the barrier of the demised mines, and so render the demised mines liable to an influx of water from an adjoining worked-out mine. 6 Where there is a grant of land in its natural state by way of Grantee with /. . i • .i , • o ,i r l exception of conveyance in lee simple, with an exception of the surface ; and sur fa Ce has no provision is made with respect to support; the law is pre- s |! Illl , ar ri ° Ilt » cisely the same. Previously to Davis v. Treharne 7 this pro- is in fee, position might perhaps have been considered uncertain. There was no actual decision either in favour of or against it ; and the dicta were not uniform. But the dicta in favour of it greatly preponderated. 8 And its authority was really concluded by the circumstances under which Humphries v. Brogden was 1 Mundy v. Rutland, 23 Ch. D. 81, 89, 96, 97. 2 lb. 90, 91. 3 Bell v. Love, 10 Q. B. D. 559, 5C0, 561, 566. 4 See ante, pp. 36, 76. 5 See Bell v. Love, v. s. ; ante, p. 76. His rights may be restricted by cus- tom : see and consider the reference to the special case in Bell v. Love, n. s., 561. 6 Mundy v. Rutland, 23 Ch. D. 81, 90, 96. 7 6 App. Cas. 460. 8 See, against it, Rowbotham r. Wilson, 8 E.& B. 149, 150,^?- Martin, B. : in favour of it, Humphries v. Brogden, 12 Q. B. 746, 747, per Lord Campbell ; Rowbotham v. Wilson, 8 H. L. C. 360, per Lord Wensleydale ; Dugdale r. Robertson, 3 K. & J. 700 ; Shafto v. Johnson, 8 B. & S. 252, n., per Wood, V.C. ; Richards r. Jenkins, 17 W. R. 31, per Kelly, C.B., and Martin. B. ; Aspden r. Seddon, 1 Exch. D. 507, 509, per Cleasby, B., and Mel- lish, L.J. Cf. Eadon r. Jeffcock, L. R. 7 Exch. 388. 9 12 Q. B. 739 : see ante, p. 294. 296 NEIGHBOURS — SUPPORT — EXISTENCE OF RIGHT — [CHAP. XV. decided. For the surface owner must in that case be taken to have shown his right to support in whichever way the severance might be supposed to have been effected, whether by a grant excepting the mines, or by a grant excepting the surface. 1 If, however, there was formerly any real uncertainty on this point, it was removed by the House of Lords in Davis v. Trehame? or for years. Where the grant takes the form of a lease for years, the case formerly presented greater difficulty. There was a complete contradiction of dicta ; three cases containing dicta, that a lessor must be taken, prima facie, to retain the right of sup- port, 3 and a fourth case dicta to the contrary. 4 The latter dicta were founded upon the proposition, that a mining lease, " being a contract entered into between the owner of both surface and minerals and a lessee for the purpose of removing and making saleable minerals, which form in part what is called the natural support of the soil," 5 should be governed by a different principle of construction from that which should govern a sale of mines. And from this it was concluded, that, in a lease of mines, no terms should be imported into the contract except what were actually expressed ; and accord- ingly, that, if the right of support were not expressly reserved, it could not be reserved by implication. 6 Now it is no doubt the fact, that a mining lease in general contemplates an imme- diate removal of the minerals, whereas a sale or exception may 1 There was no evidence to show S. 252 n., 254 n., per Wood, V.-C. ; how the severance had taken place, Smith v. Darby, L. R. 7 Q. B. 724, and in theory it must have taken place 725, 726, per Blackburn, Mellor, and in either of the two ways : see Row- Lush, JJ. botham v. Wilson, 8 H. L. C. 355. * See Eadon v. Jeffcock, L. R. 7 2 G App. Cas. 460. The doctrine of Exch. 388, 390, per Cleasby and Mar- implied reservation stands for this pur- tin, BB. Sec also Hodgson v. Moul- pose on the same footing as the doc- son, 18 C. B. N. S. 332, where the trine of implied grant : see Wheeldon Court evidently took the same view. v. Burrows, 12 Ch. D. 31, 44, 49, &<*., 5 Eadon v. Jeffcock, L. R. 7 Exch. 59 ; London v. Riggs, 13 ib. 808. The 388. per Cleasby and Martin, BB. maxim, li a grant is to be construed 6 Sec Eadon v. Jeffcock, u. s. The most strongly against the grantor" is learned judges then proceeded to corn- obsolete. See Taylor r. St. Helen's, 6 ment upon Dugdale v. Robertson, 3 K. Ch. D. 270. Cf. Williams v. Bagnall, & J. 695, and disapproved of that de- 15 W. R. 274, 275, 276. cision. See also Aspden v. Seddon, 10 3 See Dugdale v. Robertson, 3K.S: Ch. 399 n., per Jessel, M.R. J. 695, 700 ; Shafto v. Johnson, 8 B & PART C, SECT. 1.] NO CONTRACT, CUSTOM, OR PRESCRIPTION. 297 as often as not contemplate a removal at a future time. And it is also the fact, that, where, as is usually the case, a royalty is reserved, the lease contemplates the removal on as large a scale as possible. These, however, were small circumstances upon which, without more, to found a distinction between the two cases with respect to the right of support. In Davis v. Treharne l the House of Lords declared what the law is. According to this decision, it does not follow from the mere facts of a lease having been granted and a royalty reserved thereunder, that there is not a right of support. Those facts may be elements to be taken into consideration, in seeing whether or not the right is taken away. But they are not suffi- cient of themselves to decide that question. 3 As the result of the cases, in which a voluntary instrument Result of of severance is producible, but in which no provision has been made with respect to support, the following propositions may be considered as established : — (1) The owner of land in its natural state is entitled, prima facie, to support, both lateral and vertical. (2) This is so, in whichever way the severance is effected ; whether by a grant excepting the mines, or by a grant excepting the surface. (3) Where the mines are granted, the facts, that the grant is by way of lease ; and that a royalty is reserved ; are not, of themselves, sufficient to disturb the presump- tion. 3 (y) Statutory Severance. A severance of the ownership of adjoining lands is fre- Same princi- quently effected under the provisions of Inclosure Acts, or f t atutoy J t0 of the Copyhold Enfranchisement Acts. Of course it will severance - seldom in such cases happen, that some attempt will not be made by the instrument of severance to regulate the rights of 1 G App. Cas. 460. Pountncy v. Clayton, 31 W. R. 664, 2 See pp. 466, 467, per Lord Black- H66. burn ; p. 469, per Lord Watson. See 3 See further, as to support under also Chapman v. Day, 47 L. T. 705, 709 ; leases, ante, pp. 234, 235, 236. Mundy v. Rutland, 23 Ch. D. 89; 298 NEIGHBOURS — SUPPORT — EXISTENCE OF RIGHT — [CHAP. XV. the respective parties. Should, however, this not be so, and should the right of support in such cases have to be determined on prirnd facie grounds, the same principles will be applicable as are applicable where the severance is effected by a voluntary instrument. 1 Land covered by water. (8) Land covered by Water. The foregoing principles have been considered with reference to the right of support for land in its natural state uncovered by water. It is conceived, that the same principles apply to the right of support for land upon or over which water rests or flows in the ordinary course of nature. 2 b. Land in Non-natural State. (a) Artificial Weight. Owner of "Where land has been artificially burdened by a building ; and ciaUy^uixlened n0 contract is available to regulate its right to support ; no right has, prima f sur) p 0r t lateral or vertical, exists for the building. 3 And, of facie, no right n _ _ ° of support for course, the same principle applies to the case of an artificial basin, or reservoir, or canal, or watercourse. 4 And where a 1 Roberts v. Haines, 6 E. & P.. 652, 654, per Lord Campbell, and Cole- ridge and Erie, J J. ; Haines v. Roberts, 7 ih. 626, per Cockburn, C.J. ; N. E. R. Co. v. Elliot, 1 J. & H. 153, per Wood, V.-C. ; 2 De G. F. k J. 432, per Lord Campbell; Elliot v. N. E. R. Co., 10 H. L. Cas. 356, 362, per Lords Chelmsford and Kingsdown ; Wakefield v. Buccleuch, 4 Eq. 649, per Malins, V.-C. ; Buccleuch v. Wake- field, L. R. 4 H. L. 411, per Lord Chelmsford. See also, as to Inclosure Acts, Bell v. Love, 10 Q. B. D. 564, 565, 568, per Baggallay and Lindley, L. JJ. : The right to withdraw support from naturally flowing water, the person interested in which has no title to the soil over which it flows, falls under the same principle as the right to abstract naturally flowing water, and will be more conveniently considered hereafter : see post, Chap. XVII., Part A., Sect. 1, Sect. 2. 3 Wilde v. Minstcrley, 2 Rolle's Abr. 564, tit. Trespass I., pi. 1 ; Palmer v. Fleshees, 1 Sid. 167 ; Stansell v. Jol- lard, cited in 1 Selw. N. P., 11th ed., 457 ; Wyatt v. Harrison, 3 B. & Ad. 871 ; Partridge v. Scott, 3 M. & W. 220 ; Hyde v. Thornborough, 2 C. & K. 250 ; Jeffries v. Williams, 5 Exch. 800; Gayford v. Nicholls, 9 ib. 708; Rogers v. Taylor, 2 H. & N. 828; Hunt v. Peake, Joh. 705 ; N. E. R. Co. v. Elliot, 1 J. & H. 153 ; Dalton v. Angus, 6 App. Cas. 753, 772. Slingsby v. Barnard, 1 Rolle's R. 430, pi. 24, so far as it is inconsistent with the pro- position in the text, cannot be up- held : see Dalton v. Angus, v. s., 742, 743. 4 There is, of course, no analogy PART C, SECT. 1.] NO CONTRACT, CUSTOM, OR PRESCRIPTION. 299 right of support for an artificial weight has been acquired by way of easement, 1 no right of support exists, . 6 Sce ant6} p 2ss. 4 lb. pp. 289, 293. 297, per Jessel, PART C, SECT. 1.] NO CONTRACT, CUSTOM, OR PRESCRIPTION. 3(Jl obligation to bear the additional weight, which would from time to time be thrown on the adjacent land, according as the vertical support was being removed. 1 (y) Principle of Brown v. Robins. However, even if land is in its non-natural state, a right still Principle of i /» • /■ it r , Brown /•. ramains, prima facie, tor such a degree or support as its owner Robins. would have been entitled to, if it had remained in its natural state. Therefore, where land, which has been built upon, is damaged through the withdrawal of its support, its owner will, if he can prove that it would have been damaged even in its natural state, be entitled, primd facie, to a remedy. 2 And, it has been said, that the mere fact, that the land in question was previously weakened by excavations by a third party in another direction, will not relieve from liability a defendant who was aware of the fact. 3 But this is not consistent with the proposi- tions stated in the preceding page ; and cannot, it is submitted, be considered law. 1 (8) Remedy for Damage although Right Non-existent. It follows from the last proposition, that, if support is with- Consequent drawn from land which has been built upon ; and the building- ha . blllt y for L ' e> injury to is injured ; and it is shown, that the land would have been in- building. jured, even in its natural state ; the remedy, to which the injured party is entitled, cannot be confined to the injury to the land. He will also be entitled to recover in respect of the injury tor*— the building. 5 And if he has suffered a consequential injury to 1 See Williams v. Bagnall, 15 W. R. 454 ; Bell v. Love, 10 Q. B. U. 547, 272, 27G. Under the terms of the con- 570 ; and see Backhouse v. Bonomi, tract the mine owner was precluded I) H. L. Ca. 5U3. from entering on the surface, and was 3 See Brown v. Robins, u. s. therefore compelled to work from the 4 See Brown v. Robins, u. *•., p. 194, adjoining property ; but the decision per Martin, B. was independent of this fact. Cf. 5 Brown v. Robins, ?/. s., 186 ; Woodall v. Hingley, 14 L. T. N. S. Hunt v. Peake, Job. 713 ; Stroyan v. 1*57. Knowles, Hamer v. Knowles, u. .v. ; I 2 Brown v. Robins, 4 H. & N. 1SS ; Richards v. Jenkins, 17 W. R. 34 ; Hunt v. Peake, Joh. 712 ; Stroyan v. Chapman v. Day, 47 L. T. 705. In Knowles, Hamer v. Knowles, 6 H. & N. the last case the mine owner had, / 302 NEIGHBOURS — SUPPORT — EXISTENCE OF RIGHT — [ciIAP. XV. Liability for negligence. his trade, in respect of this also he will be entitled to recover. 1 And it is not open to the wrong-doer to contend, that the trade should have been immediately discontinued, to prevent an aggravation of the injury. 2 Had it not been for the wrong- doer's unlawful act, there would have been no injury at all. 3 Whether the owner of land in its non-natural state may, 'prima jade, make an adjoining owner liable for removing support, if the removal has been done negligently, is a question not free from doubt. The decisions upon the point are con- tradictory. According to seven of them, the adjoining owner is liable, if the removal has been done negligently: 4 but it may be that some of that number cannot be regarded as authorities ; 5 and others might have been decided upon different grounds. 6 According to one of the decisions, no action is main- tainable for removing support, however negligently, to which the plaintiff is not entitled; 7 although, according to another of them, this is only the case, where the defendant is ignorant of the existence and nature of the supported structure. 8 In this conflict reference may be made to the law applicable where land is in its natural state, and where the right of its owner to support has been excluded. He seems nevertheless entitled to a remedy, if the support is withdrawn by reason of the adjoining owner working negligently, or maliciously, or contrary to the custom of the country. 9 There does not seem to be any upon the severance of the mines from the surface, covenanted to make good all damage caused by his workings, and restore the surface ; and it was contended, but without success, that this imposed on the surface owner an implied obligation not to build. 1 See Stroyan v. Knowles, Hamer v. Knowles, 6 H. i: X. 454. 2 See ib. p. 465. 3 See Brown v. Robins, 4 H. & X. 180. 4 See Walters v. Pfeil, Mood. ,V M. 302 ; Massey v.Goyder, 4 C. & P. 101; Dudley Canal Co. r. Grazebrook, 1 B. & Ad. 65 ; Dodd v. Holme. 1 A. ,\: B. 493 ; Davis v. Lond. & Blackwall Ey. Co., 1 M. & G. 799 ; Bradbee i>. Christ's Hospital, 4 M. & G. 714 ; Woodall r. Hingley, 14 L. T. N. S. 107. Angus v. Dalton (4 Q. B. D. 204) contains an opinion of Brett, L.J. to the same effect. 5 Walters v. Pfeil, u. s., and Massey v. Goyder, U.S. are only nisi prius deci- sions. 6 In Dodd v. Holme, u. s.. and Brad- bee v. Christ's Hospital, u. s., the right of support was not disputed. See G ay- fur, 1 v. Xicholls, 9 Exch. 708. 7 See Gayford v. Nicholls, 9 Exch. 702. s See Chadwickr. Trower, 8 Scott 1, reversing Trower v. Chadwick, 3 ib. 699. Cf. Fletcher r. Rylamls. 3 H. & C. 795, et zcq. (reversed ib. L. R. 1 Exch. 205 ; Ry lands v. Fletcher. L. P. 3 H. L. 330) ; Woodall v. Hingley, 14 L. T. X. S. 107. 9 See infra, Sect. 2, a (7). PART C, SECT. 1.] NO CONTRACT, CUSTOM, OR PRESCRIPTION. 303 reason why the law applicable where land is in its natural state, and where it is in its non-natural state, should in this respect be different. It is also to be observed, that, in many of the cases, which in other respects ascertain the relative rights and duties of adjoining owners, the presence or absence of wilfulness or negligence on the part of the defendant has been deemed material. 1 The preponderance both of authority and principle is therefore greatly in favour of the proposition, that negligence entails liability. Akin to the preceding question is the further question, Doubtful whether an adjoining owner is bound to give the owner of land to notify inten- in its non-natural state notice that he intends to withdraw the V 011 towittt " draw support. support. The actual authorities upon this question are con- flicting. 2 (e) Value of Land not entitled to have Artificial Weight supported. Although an owner of land, who puts an artificial weight Mordue v, upon it, is not entitled, prima facie, to have such weight urian1, supported, 3 he is entitled, prima facie, to put the weight upon it in the first instance. 4 It follows, that, where the owner of land is not entitled to have an artificial weight thereon sup- ported, and the value of the land has for any purpose to be estimated, it is not necessarily estimable with reference merely to the purposes to which the land can be applied in its natural state. In Mordue v. Durham 5 the defendants sold land to the plaintiff with an exception of mines and minerals. The conveyance reserved extensive powers to the defendants to 1 See Smith v. Kenrick, 7 C. B. 515 ; Peyton v. London, 9 B. & C. 725 ; Eadon v. Jeffcock, L. R. 7 Exeh. 395 ; Brown v. Windsor, 1 Cr. & J. 27. It Smith v. Fletcher, 9 lb. 64, 67 ; Cromp- was answered in the negative in Chad- ton v. Lea, 19 Bq. 127, 129. Cf. the wick v. Trower,8 Scott 1 ; where, how- language of s. 79 of Bail. CI. Cons. ever, the defendant was ignorant of Act, 1845, and s. 23 of Wat. CI. Act ; the existence of the wall, which was ante, p. 5, n. 13 ; p. 9. damaged. 2 The question was answered in the 3 See ante, p. 298. affirmative in Massey v. Goyder, 4 C. 4 See Mordue v. Durham. L. B. S C. & P. 1G1 ; which was, however, only a B. 3*0 ; Daltun v. Angus, App. Cas. nisi prius decision. See also, on this 7\j.a/ () subject, Jones v. Bird, 5 B. & Al. 837 ; 5 L. B. 8 C. P. 33G. 304 NEIGHBOURS — SUPPORT — [chap. XV. occupy and use the surface for the purpose of working. It also provided, that it should not be lawful for the plaintiff to do anything whereby the defendants should be hindered in the exercise of the reserved powers ; and that the defendants should compensate the plaintiff for damage or spoil of ground to be occasioned by the exercise of the powers. The powers were exercised ; and the plaintiff claimed as compensation the value of the land with reference to any purpose to which it might be reasonably considered as applicable. The claim was held to be maintainable. 1 Statutory severance. (0 Statutory Severance. The principles which, prima facie, determine the right of support for land in its non-natural state, do not exclusively apply, where no evidence as to the time or mode of severance of the two adjoining tenements is producible, or where the instru- ment of severance is voluntary. They equally apply, where the instrument of severance has been entered into under the provi- sions of a railway or canal Act, or otherwise has a statutory origin. 2 Sect. 2.— ACTUAL OR ALLEGED CONTRACT, CUSTOM, OR PRESCRIPTION. a. Exclusion of Right for Land in Natural State. (a) Contract. Rigbt of sup. If apt words are used, whether in the instrument of severance port for land in natural itself , orina contemporaneous, or a subsequent instrument ; 4 1 See further, as to this case, ante, pp. 275, 27G. Cf. the Sc. case of Neill's Trustees v. Dixon, 7 Sess. Cas. (4th ser.) 741 ; a decision on the mean- ing of " surface damage." 2 See ante, p. 298, n. '. 3 See Rowbotham v. Wilson, 6 E & B. 593 ; 8 ib. 123 ; 8 H. L. Cas 348 ; Shafto v. Johnson, 8 B. & S 252 O) ; Taylor v. Shafto, ib. 228 Murchie v. Black, 19 C. B. N. S. 207 Williams v. Bagnall, 15 W. R. 272 Buccleuch v. Wakefield, L. R. 4 H. L 377 ; Smith v. Darby, L. R. 7 Q. B. 71G ; Eadon v. Jeffcock. L. R. 7 Exch. 379 ; Buchanan v. Andrew, L. R. 2 Sc. & D. 288 ; Aspden v. Seddon, 10 Ch. 396 (»), 401 ; ib. 1 Exch. D. 496 ; Gill v. Dickinson, 5 Q. B. D. 159 ; Davis v. Treharne, 6 App. Cas. 466, 469 ; Dalton v. Angus, ib. 809 ; Chapman v. Day, 47 L. T. 709 ; Mundy v. Rutland, 23 Ch. D. 81, 88, 89 ; Bell v. Love, 10 Q. B. D. 558. This in fact is admitted in Harris v. Ryding, 5 M. & W. 60 ; Hum- phries v. Brogden, 12 Q. B. 745, 757 ; Smart v. Morton, 5 E. & B. 30, 46. 4 See Rowbotham v. Wilson, 6 E. & PART C, SECT. 2.] EXISTENCE OF RIGHT — CONTRACT. 305 and whether in affirmative or negative terms ; l and whether in state may be express terms or by plain implication ; ~ and whether the under- contract. y lying mines are granted or excepted ; 3 and whether the instru- ment is voluntary or statutory ; 4 the right of support for land in its natural state may be effectually excluded. This was formerly supposed to be impossible, as appears from the dictum of Lord Denman in Hilton v. Granville 70 : — " Even if the grant could be produced in specie, reserving a right in the lord to deprive his grantee of the enjoyment of the thing granted, such a clause must be rejected as repugnant and absurd." G It is, however, clear, that if a man grants land ; with an exception of the mines, and with a right to withdraw support from the sur- face ; a surface may, if the right be exercised, nevertheless belong to the grantee ; although possibly not the same kind of surface as that which belonged to him at the date of the grant. 7 And Lord Denman's dictum has been expressly overruled. 8 And of course the right may be partially 9 as well as wholly excluded. It has been laid down, that a proviso in a purchase deed, that Incidental con- the vendor, his heirs or assigns, " tenants or lessees," should not exchiTion of be liable for any damage caused by the sinking of the land nsht< through mining operations in getting " the minerals hereby excepted," would enure for the benefit of a lessee holding under an antecedent lease ; such lease having been recited in the deed, and the minerals comprised in the lease having been part of the minerals excepted from the purchase. 10 An owner of land B. 604 ; 8 ib. 147 ; Murchie v. Black, 19 C. B. N. S. 205. Cf. Richard r. Harper, L. R. 1 Exch. 205. 1 See Smith v. Darby, L. R. 7 Q. B. 72i, j)er Blackburn, J. 2 See ib. 725 ; Aspden v. Seddon, 10 Ch. 401 ; Davis v. Treharnc, 6 App. Cas. 4G9. 3 See Williams v. Bagnall, 15 W. R. 274, 275, 276. 4 Bell v. Love, 10 Q. B. D. 55S. 566. 5 5 Q. B. 701. 6 See p. 730. 7 Sec Rowbotham v. Wilson, 6 E. k B. 603 ; 8 H. L. Cas. 361, 362 ; Salis- bury v. Gladstone, 9 H. L. Cas. 703 ; Williams v. Bagnall, 15 W. R. 276. s See Rowbotham r. Wilson, 8 H. L. Cas. 348. See also Carlyon v. Lovering, 1 H. & N. 799 ; Bucoleuch v. Wakefield, L. R. 4 H. L. 399, 410 ; Buchanan v. Andrew, L. R. 2 Sc. & D. 297 ; Hall v. Byron, 4 Ch. D. 678 ; Bell v. Love, 10 Q. B. D. 5G1. 9 In Mundy v. Rutland, 23 Ch. D. 81, Kay. J., thought that the provisions of a lease (stated post, pp. 320,321) par- tially excluded the right of support. The Court of Appeal thought that they were unintelligible. 10 See Eadon v. Jeffcock, L. R. 7 Exch. 379, 397, 39S, per Bramwell, B. Cf., on this point, Davis v. Treharne, 6 App. Cas. 460 : post, p. 332, n. \ x oOG NEIGHBOURS — SUPPORT — EXISTENCE OF [ciIAP. XV in its natural state, whose right of support is excluded by con- tract, may nevertheless be entitled to a remedy, if the damage which he sustains has been occasioned by the working of minerals not the subject of that contract. If, for example, upon a sale or lease of lands the mines are excepted, with liberty to get them without being liable for any damage ; and the mine owner is also the owner of mines which laterally adjoin ; and he does not work the excepted mines, but works the lateral mines ; and his workings damage the land sold or demised ; he may be liable. 1 (/3) Custom and Prescription. Right may also The right of support for land in its natural state may also be excluded by custom, if apparently be excluded by custom, if it is a part of the custom JnaSfonfoa tnat compensation shall be made for all damage. 2 P art - In Hilton v. Granville 5 an action was brought by a copy- HiftMi ?" Gran- no ^ er against his lord's lessee for working minerals under the otherwise b^ C0 Pyh°ld P arcel m such a way as to withdraw support there- custom, and from ; and from two ancient copyhold houses, which had been miy not by , ., , ,, i m i prescription. built thereon. 1 1 wo pleas were, amongst others, put in: a prescriptive right so to work without making any compensation for the damage to be done, and a custom so to work from time immemorial without making any compensation. Both pleas were held bad. This decision was treated as sound in Salisbury 1 See Whitehouse w. Bayley, 34 L. T. compensation for the injury so caused, 93 ; Aspden v. Seddo'a, 1 Ex. D. 505. was alleged to exist at the time of In Whitehouse v. Bayley. the plaintiff's the injury complained of. The plea of buildings were damaged, but the land such a custom was held bad ; but would have been damaged even if un- upon the ground, that the existence built upon : see as to this, ante, p. 301. of the custom was not sufficiently He might have been free from liability, proved. if he had postponed the working of the 3 5 Q. 15. 701. lateral mines until after he had worked 4 The principle of the decision was the excepted mines : see ante, p. 300. not affected by the fact that houses 2 See Aspden v. Seddon, 1 Exch. D. were upon the laud. The pleas were 509, 510, per Mellish, L. J. See also not confined to newly built houses, but the observations of Lord Hath erley in were so wide as to embrace houses Buccleuch v. Wakefield, L. R. 4 H. L. coeval with the custom itself; a; to 39."), 39fi, 399. Cf. Smart p. Morton, which a grant of the right of support 5 E. & B. 30. There a custom to work would, in the absence of the custom, so as to let down the surface, paying }>- implied : see infra, h. (£). TART C, SECT. 2.] RIGHT — CUSTOM OR PRESCRIPTION'. 307 v. Gladstone? was acted on in Blackett v. Bradley,- and was approved in Bell v. Love ; 3 and it has never been, as a decision, either overruled or disapproved. However, its correctness, as a decision, that a custom so to work is invalid, is hardly consistent with many of the observations of Lord Cottenham, when the same case was in Chancery ; 4 and certainly was not treated as being beyond doubt in Buccleuch v. Wakefield.} The following reasons may be urged in favour of the view, But Hilton v. that Hilton v. Granville is not, in that respect, good law: — bMywtc^g&s (1.) The lawfulness of a grant of the right to disturb the surface to custom - is now beyond doubt. But when Hilton v. Granville was decided, such a grant was supposed to be unlawful; 7 and it is difficult to say how far the decision may not have been due to this erroneous notion. (2.) It seems reasonable to conclude (all customs being supposed to have their origin in grants), that a custom may be valid, if a grant, which could create it, could have been valid. (3.) The main ground, upon which the de- cision proceeded, was, that a customary right to disturb the surface is repugnant to the right of the surface owner to sup- port ; is, therefore, unreasonable ; and, being unreasonable, wants one of the requisites of a good custom. 8 It does not, however, appear to be the fact, that a customary right to disturb a sur- face is repugnant to the right of the surface owner to suprort. A similar argument was disregarded in the case of a grant. 9 And there is no reason why a custom and a grant should in this respect stand upon a different footing. 10 And (4) a customary right to disturb a surface, paying compensation for the damage so caused, appears to be without doubt a good custom. 11 But if a payment from time to time, as and when damage is caused, is sufficient to give validity to a custom, a payment once for all at 1 9 JT. L. C. C92, 702. field v. Buccleuch, 4 Eq. G50— C53. " 1 B. & S. 940 : overruled in Gill v. <*• Ante, pp. 304, 305. Dickinson, 5 Q. B. D. 159. " See Lord Demnan's dictum in this 3 10 Q. B. D. 5G1, per Baggallay, very case, cited ante, p. 305. L. J. 8 See ante, p. 90, n. -. * 1 Cr. & Ph. 283, 294. 29."). » See ante, p. 305. 5 L. It. 4 IT. L. 399, per Lord l0 See the observations of Lord Cot- Hatherley ; 406, il0,per Lord Chelms- tenham in Hilton v. Granville, 1 Cr. & ford. It was followed in the reversed Ph. 293. 294. decision in the court below : see Wake- " See ante, p. 306. X 2 308 NEIGHBOURS — SUPPORT — EXISTENCE OF [cHAP. XV. And prescrip- tion and custom on similar footing Freeholds and copyholds. Wastes. the origin of the custom should for that purpose be equally effectual. And a payment, or something equivalent to a pay- ment, may reasonably be presumed to have then taken place. The first of these reasons may not perhaps be entitled to much consideration. As against the second, it may be urged, that the lawfulness of a custom does not necessarily follow from the law- fulness of a grant. " Though the parties may have legally made such a contract, it would not be reasonable to presume that they had done so." l It may be doubted, however, whether this objection is sufficient to dispose of the second reason ; and it is difficult to see what objection can be urged against the third or the fourth. Upon the whole, therefore, it is submitted, that Hilton v. Granville would not, in the above respect, be followed at the present day. 2 If a custom to disturb the surface without paying any compensation may now be considered good, it must, at all events, be conclusively shown to exist ; 3 and to have existed at the time when the severance of the adjoining tene- ments took place. 4 No reason exists why the same remarks should not equally well apply to a plea of a prescriptive right so to work as to disturb the surface."' As regards the validity of pleas of rights by custom or prescription to withdraw support from a surface, there is no distinction between freeholds and copyholds. 6 In Gill v. Dickinson 7 an action was brought by the owner of an allot- ment of waste land within a manor against a lessee under the lord for working minerals under the allotment in such a way as to withdraw support therefrom. The defendant pleaded (amongst other things) an immemorial custom in the lord and his assigns to work the minerals under the wastes without leaving support, and without making any satisfaction 1 See Blackett v. Bradley, 1 B. & S. 953, per Blackburn, J. ; Bell v. Love, 10 Q. B. D. 561, per Baggallay, L.J. 2 As to a custom being said to be void, because it is unreasonable, see ante, p. 90, n. -. * See Smart r. Morton, 5 E. & B. 30 ; Bell v. Love, 10 Q. B. D. 560. 4 See Smart v. Morton, u. s. 5 See Hilton v. Granville, 5 Q. B. 701. Cf. the observations of Lord Wensleydale in Ptowbotkam v. Wilson, 8 H. L. C. 363. 6 See Hilton v. Granville, u. s. 7 5 Q. B. D. 159. PART C, SECT. 2.] EIGHT — CONTRACT — CUSTOM OR PRESCRIPTION', '309 for the injury thereby caused. It was held, 1 that the case was not governed by the decision in Hilton v. Granville ; 2 and judgment was given for the defendant. It may possibly be, that a custom to mine under copyholds without leaving support for the surface is bad, as being unreasonable. 3 But it does not follow, that a custom to mine under a waste is bad. 4 Indeed, independently of custom, the lord is, as has been already seen, 5 entitled, in working under the wastes, to withdraw support from the surface ; provided only he leaves a sufficiency of common. (y) Remedy for Damage although Bight excluded. An owner of land in its natural state, whose right of support Liability under is excluded, is frequently entitled to compensation for the custom, damage he may sustain ; either by the terms of the instrument by which his right is excluded ; or, if it can be validly excluded by custom, 6 by such custom. 7 Where an instrument, which excludes the right of a surface owner to support, provides that he shall be compensated for all damage which he may thereby sustain, the burden of the liability to make such compensation runs with the land. 8 Where the right of support for laud in Liability its natural state has been excluded, the adjoining owner may, gent or nevertheless, it would seem, be liable, if he works negligently, malicions or or maliciously, or contrary to the custom of the country. 9 working. (6) Subsequent Acquisition of Excluded Bight. Whore the right of support 1 Overruling Blackett v. Bradley. 1 B. & S. 910. In Bell v. Love (10 Q. B. D. 561) Baggallay, L.J., expressed (although extra-judicially) approval of the decision in Blackett v. Bradley. His Lordship's attention, however, was not apparently called to Gill v. Dickinson. ' J Ante, p. 306. 3 See, as to this, the three preceding pages. 4 See also Buccleuch v. Wakefield, L. E. 1 H. L. 406, 410 (per Lord Chelmsford), where it is said, that a custom applicable to the customary tenancies of a manor is no authority for land in its natural state has Subsequent acquisition ly for the right of working mines with reference to the wastes. 5 See ante, p. 295. r ' See the three preceding pages. 7 Sec ante, p. 30C. 8 Aspden v. Seddon ; Preston v. Sed- don ; 1 Exch. D. 496. 9 See Eowbotham v. Wilson, 6 E. & B. 593, 602 ; 8 it. 123 ; 8 H. L. C. 318 ; Eadon r. Jeffcock, L. E. 7 Exch. 393, 391 ; Buchanan v. Andrew, L. E. 2 Sc. 6 D. 292, 296. Cf. Smith v. Kenrick, 7 C. B. 515 ; Smith r. Fletcher, L. E. 9 Exch. 64, 67 ; Crompton v. Lea, 19 Eq. 127, 129. 810 NEIGHBOURS — SUPPORT — [CHAP. XV. prescription been excluded, it cannot, apparently, be subsequently acquired P ossfble y im * ky prescription. 1 It would be impossible, in such a case, to show an enjoyment as of right. b. Acquisition of Right for Land in Non-Natural State. (a) Express Grant. Right of sup- A right of support for land in its non-natural state may be Fn non-natural acquired by express grant or reservation ; whether voluntary, 3 or state may be s t a t u tory. As instances of statutory acquisitions it may be acquired J J l J by express mentioned, that provisions are made for the preservation of dvvellinghouses under the Act 7 & 8 Vict. c. 105 ; 3 of houses and other buildings under the Cornwall Subm. Mines Act, 1858 ; 4 of piers and other structures under the Crown Lands Act, 1866 ; 5 and (in the case of mines excepted from a grant of lands in Ireland) of places of worship, graveyards, cemeteries, public schools, houses, and outhouses, under the Act 23 & 24 Vict. c. 154. 6 (/3) Implied Grant. Or by implied The right may also be acquired by implied grant or reserva- wh'reat time tion. 7 If, for instance, the weight caused by buildings, or by an of severance artificial watercourse, be upon land at the time when such land weight actually , ... on land. is severed from the adjoining land, there is, prima facie, an implied grant or reservation, as the case may be, of the right of support for such buildings or watercourse. 8 1 This question was suggested in Rowbotham v. Wilson, G E. & B. 593. 2 See Brown v. Windsor, 1 Cr. & J. 20 ; Bonorni v. Backhouse, E. B. & E. 655 ; Angus v. Dalton, -1 Q. B. D. 162, 16!), 170, 197; Dalton v. Angus, 6 App. Cas. 792. 3 Giving working powers to the Duke of Cornwall : ante, p. 27S. 4 See ante, p. 279. 5 Ante, p. 280. 6 Ante, p. 281. 7 Bonomi v. Backhouse. E. B. k E. 655 ; Angus v. Dalton, -1 Q. B. D. 162, 169. 8 See Wyrley Canal Co. v. Bradley, 7 East, 368, 372 ; Richards v. Rose, 9 Exch. 218 ; Gayford v. Xicholls, ib. 70S ; Caledonian R. Co. v. Sprot, 2 Macq. 451 ; Murchie v. Black, 19 C. B. N. S. 205 ; Richards v. Jenkins, 17 W. R. 30 ; Dalton v. Angus, 6 App. Cas. 792, 826 ; Rigby v. Bennett, 21 Ch. D. 567 : and cf. Pyer v. Carter, 1 H. & N. 916 ; Dugdale v. Robertson, 3 K. & J. 695, 700. In Caledonian R. Co. v. Sprot, «. *., it was said, that, what a grantor grants, is such a measure of support " as is necessary fur the land in its condition at the time of the grant : r ' see p. 451. By the grant is of course meant the last grant, if there have been more than one : Richards v. Jenkins, u, s., 33. PART C, SECT. 2.] EXISTENCE OF RIGHT— CONTRACT. 311 So, where land is purchased, or excepted from a purchase, for Or avowedly a particular object, and such object is known to both parties l^there ° at the time of the purchase, there is, primd facie, an implied grant or reservation, as the case may be, of a reasonable degree of support for the due execution of that object. 1 There- fore, "where the avowed object of a purchase of laud is the erection thereon of a building, or a railway, or a canal, the pur- chaser purchases, prima facie, by implication, the right of support for such building, railway, or canal. 3 And, whether the purchase be voluntary, or effected under the compulsory powers of an Act of Parliament ; 3 or the object be, or be not, stated in the instrument of purchase; 4 is wholly immaterial. 5 And however the building, railway, or canal may be used, or to whatever purposes it may be applied, is also wholly immaterial. 6 Where the owner of two adjoining tenements sells one of them, excepting the underlying mines ; and stipu- lating, that he shall not be liable for any damage, which their working may cause ; his stipulation, according to a principle already stated, 7 does not exempt him from liability for damage to that tenement by lateral workings under the other tenement. And if he sells it for the erection of buildings, his stipulation may not exempt him from liability for damage to those buildings by such lateral workings ; although, if it had been unburdened 1 See Caledonian R. Co. v. Sprot, 2 Macq. 451, 452 ; N. E. R. Co. r. Elliot, 1 J. & H. 153 ; Elliot v. N. E. R. Co., 10 H. L. C. 357, 3G2 ; N. E. R. Co. v. Crosland, 4 De G. F. & J. 551) ; G. W. R. Co. v. Bennett, L. R. 2 H. L. 40"; Aspden v. Seddon, 10 Ch. 401 ; ib. 1 Ex. D. 506 ; Siddons v. Short, 2 C. P. D. 577 ; Bigby v. Bennett, 21 Ch. D. 567, 569. 2 See Caledonian R. Co. v. Sprot, 2 Macq. 451, 452 ; Elliot v. N. E. E. Co., 10 H. L. Cas. 357, 362 ; Siddons v. Short, 2 C. T. D. 572, 577 ; Dixon v. Cal. Comp. 5 App. Cas. 829 ; Dalton r. Angus, 6 ib. 792, 826 ; Pountney r. Clayton, 31 W. II. 665, 667. Cf. Met. Bd. v. Met. R. Co., L. It. 3 C. P. 612 ; 1 ib. 192. 3 See Siddons v, Short, u. s. ; Dixon t. Caledonian E. Co., 5 App. Cas. 829. See also ante, p. 298, n. 1 , and cases there cited. 4 See Siddons v. Short, n. x. 5 If, on the other hand, a grant is made for such a purpose as that of grazing, and the grantee builds a rail- way, he will, if the support be removed, be, jirimd facie, without a remedy : see Caledonian E. Co. v. Sprot, 2 Macq. 451. e Caledonian R. Co. v. Sprot, 2 Macq. 462 ; N. E. R. Co. v, Elliot, 2 De G. F. & J. 432. The prima facie position may be modified by circum- stances : see Rigby v. Beunctt, 21 Ch. D. 567, ct sea. 7 See ante, p. 306. 31 2 NEIGHBOURS — SUPPORT EXISTENCE OF [CHAP. XV. by buildings, the workings would not have caused it to come down. 1 Sewers. According to similar principles the provisions of the Pub. Health Act, 1875, obliging every local authority to keep in repair all sewers belonging to them, and to make all necessary sewers ; and empowering them, after giving reasonable notice to the owner or occupier, " to carry any sewer into, through, or under any lands whatsoever within their district," making com- pensation to all persons injured ; 2 give them by implication the right to have sewers made under the powers of the Act, supported by the subjacent minerals. The powers of the Act might otherwise be inoperative. 3 And the right is not confined to those parts of the subjacent minerals which lie mathe- matically beneath the sewers. 4 But whether the Act also gives an implied right of general lateral support is doubtful. 3 Gas mains and In like manner, where an Act of Parliament vested gas mains pipes. an( j g as pjp es [ n a company, and provided for their mainte- nance ; and empowered 6 the company to lay down, and from time to time maintain, additional and other mains and pipes, and to do all such acts as they might think proper for supplying gas ; they were held entitled to have both the original, and additional or other, mains and pipes supported by the subjacent minerals. 7 But it would have been otherwise, if they had acted without such statutory powers. For they would then have been wrongdoers from the beginning. 8 Or even where And, even if it be merely shown to have been within the SSSt'con™ contem plation of the parties to a purchase, that an artificial tsmplated. weight might, at a then future time, be placed upon the land purchased or excepted, a grant or reservation will, prima facie, be implied of a reasonable degree of support for that weight. Thus, where, upon a sale of land, the purchaser covenanted, that the land, " or any buildings now or hereafter to be erected 1 See Aspden v. Seddon, 1 Exch. D. nuisances : ante, p. 1-18. 506. 6 Besides containing an express pro- 2 See ss. 15, 16, 308. vision on the subject, the Act in ques- 3 See Re Dudley, 8 Q. B. D. 86. tion incorporated the Gas. 01. Act, 4 See ib. pp. 93, 94, 95, 96. 1847 (10 k. 11 Vict. c. 15). 5 Ib. S. 334, providing that nothing 7 Xormanton Gas Co. v. Pope, 4S L. in the Act should be construed to ex- T. 666 ; affirmed 52 L. J. Q. B. 629. tend to mines, merely applies to 8 See ib. PART C, SECT. 2.] RIGHT— CONTRACT — PRESCRIPTION. 31S thereon," should not be used for certain specified purposes, it was held, that the vendor was liable for so working mines as to injure buildings which had been erected subsequently to the sale. 1 There are no other means by which a grant or reservation of No implied . right for the right of support for land in its non-natural state can be reasonable implied. There is no authority 2 for the proposition, which ireig *' has been sometimes advocated or suggested, 3 that the owner of a surface ought, in every case, to have, prima facie, a right of support for all reasonable buildings which may be put upon it. Refusing to accept it can hardly, it may be observed, in any case, involve hardship. For, if a man's house is injured by mining operations, and he can show, that his land would have been injured, even if it had been in its natural state, he will, although having no right of support for the house, be entitled to damages, not merely in respect of the land, but also in respect of the house. 4 (y) Prescription — Enjoyment since Legal Memory. The right of support for land in its non-natural state may Right may be acquired by enjoyment from the time of legal memory. 5 quire(i fc _ And where the right is claimed on this ground, the claim to it en J°y™e n t ° ° since legal cannot be defeated by reason only, that actual proof is given, by memory. scientific or other evidence, that the non-natural state must of necessity have originated at a time later than that of legal memory. The fiction of a grant made and lost in modern times may, it seems, be applied, so as to destroy the effect which such proof might otherwise have. 7 1 Berkeley v. Shafto, 15 C. B. N. S. & N. 190, 193. 79. 4 See ante, p. 301. 2 See Dalton v. Angus, 6 App. Cas. 5 Angus v. Dalton, 4 Q. B. D. 162, 804, 808, per Lord Penzance: and see 170, 171, 185, 186; Dalton v. Angus, 763. See also Richards v. Jenkins, 17 6 App. Cas. 762, 763, 783, 781, 810. See W. R. 3d, per Channell, B. Bell v. Love, 10 Q. B. D. 559, 560. 3 See Rogers v. Taylor, 2 H. & N. 6 Angus v. Dalton, u. s., 172, 186, 828 ; Richards r. Jenkins, 17 W. R. 199. 32 ; Dalton v. Angus, 6 App. Cas. 749, 7 /&, \i2,pcr Thesiger. L. J. 772 : see also Brown v. Robins, 4 H. 314 NEIGHBOURS — SUPPORT— [cHAP. XV. (6) Prescription — Enjoyment for Twenty Years. Or by enjoy- The right of support for land in its non-natural state may also be twenty "years, acquired by an adverse enjoyment for twenty years. 1 However, an enjoyment for twenty years can only confer the right, if the servient owner was capable of making a grant. 2 No such right can, for example, be obtained against a lunatic. 3 And an enjoyment for twenty years can only confer the right, if the servient owner knew or might have known, that some altera- tions as to support were being made. 4 But if he had or might have had this knowledge, it is not necessary that lie should also have been aware of the extent or details of the alterations. 5 And an enjoyment for twenty years cannot confer the right, if the person claiming it has practised deception or concealment. If a person, who knows that an artificial weight is being in fact imposed, makes inquiries as to its extent or details, and receives false or misleading information, no right can be acquired against him by prescription. And if the weight is imposed secretly or surreptitiously, so as to keep material facts from his knowledge, his position is the same. 6 Former doubts, Whether, after the right has been in point of fact enjoyed for could noUi™ twenty years, the claim to it cannot be defeated by mere proof, defeated if £] )a £ ^ ie enjoyment was never actually assented to, or was enjoyment dis- ° J J sented from, dissented from, was formerly not free from doubt. For it was a received doctrine, that the right of support for land in its non-natural state is only a negative or passive easement ; 7 not susceptible of interruption by the servient owner ; and not, therefore, an easement obtainable by twenty }^ears' enjoyment within the meaning of s. 2 of the Prescription Act. 8 The 1 Rogers v. Taylor, 2 H. & N. 828. 5 lb. 801, 802, 828. See also Richards v. Jenkins, 17 W. R. 6 lb. 802, 827, 828. See Lemaitre 31, 33 ; Angus v. Dalton, 4 Q. B. D. r. Davis, 19 Ch. D. 281. 1G2, 170, 171, 185, 186, 201 ; Dalton ' Angus r. Dalton, w. . See Webb r. Bird, 10 C. B. N. S. 283, per Erie, C. J. ; Arkwright v. Gell, 5 M. k. W. 233 ; Angus v. Dal- ton, 3 Q. B. D. 8.5 ; 4 ib. 162, 170, 185, 197, 198; Dalton v. Angus, 6 App. Cas. 742, 764. The statement in Hyde v. Thornborough, 2 C. & K. 254, that the right in question is within 2 & 3 Will. 4, c. 71, s. 2, was regarded as erroneous. 2 See Palmer r. Fleshees, 1 Sid. 1C7 ; Stansell r. Jollard, 1 Selw. N. P. 11th edit. 457 ; Brown r. Windsor, 1 Cr. & J. 20 ; Wyatt v. Harrison, 3 B. & Ad. 871 ; Dodd v. Holme, 1 A. & E. 493 ; Partridge v. Scott, 3 M.&W. 220 ; Hyde v. Thornborough, 2 C. & K. 254 ; Humphries v. Brogden, 12 Q. B. 749 ; Gayford v. Nicholls, 9 Exch. 708 ; Kowbotham v. Wilson, 8 E. & B. 140, 142 ; Rogers v. Taylor, 2 H. & N. 828 ; Brown v. Robins, 4 ib. 186, 190 ; Solomon v. Vintners' Co., ib. 598, 599, 602 ; Hunt v. Peake, Joh. 711 ; Bo- nomi v. Backhouse, E. B. & E. 655 ; Richards v. Jenkins, 17 W. R. 31, 33. See also Met. Bd. Wks. v. Met. R. C, L. R. 3 C. P. 622 ; and cf. Woodall r. Hingley, 14 L. T. N. S. 167. 3 Dicta in favour of the proposition are expressed more or less broadly in most of the cases cited in the pre- ceding note, except Brown v. Robins, and Solomon v. Vintners' Co. The latter cases contain dicta expressly against it ; but it should be observed, that in Solomon r. Vintners' Co. the actual decision was upon a claim to the right of support for a house from (not adjoining soil, but) another house not immediately adjoining. Woodall v. Hingley, v. s. (a case of honey-combed land), also contains a dictum against the proposition. 4 See Arkright v. Gell, 5 M. & W. 203 ; Solomon v. Vintners' Co., u. s., p. 599. See also Dalton v. Angus, 6 App. Cas. 764, 775, 779, 805, 806, S07. 516 NEIGHBOURS — SUPPORT — EXISTENCE OF [cHAI\ XV. Dalton r. Ansrus. This case shows that claim cannot be so defeated have fallen by the withdrawal of the support, 1 and of being made liable accordingly. 8 It would be a reproach to the law, if, to prevent the acquisition of the right, it were necessary to resort to a course so irrational and so perilous. On the other hand, was a man obliged, in order to resist the acquisition of the right, to bring an action ? If so, upon what, principle could such an action be supported ? For the dominant owner, in imposing the artificial weight in the first instance, was clearly acting within his lawful rio-hts. 3 These reasons were fully considered in Dalton v. Angus* where an express decision upon the subject in question was pronounced by the House of Lords. In that case two adjoining houses, which were estimated to be upwards of a hundred years old, had been occupied as dwelling-houses by the respective pre- decessors in title of the plaintiffs and the defendants until about twenty-seven years before the date of the defendants' excavations. The plaintiffs' predecessor then converted his house into a coach factory ; ami, in doing so, he concentrated on one particular spot of the defendants' soil a weight, to which the entire range of that soil had previously contributed support. The defendants' predecessor was competent to grant the right of support ; and he knew, or might have known, that alterations were in fact being made. The plaintiffs' predecessor acted openly and without deception or concealment ; but without having obtained from the defendants' predecessor any grant of the right of support, or any assent to the use of such support. The defendants took down their house, and dug cellars in the soil ; and, as the result, the whole factory fell. It was held, that the plaintiff was entitled to recover ; 5 and the law applicable to the case was laid down as follows : — Uninterrupted enjoyment for twenty years of the right of support for land in its non-natural state raises a presumption of a grant of the right ; assuming, that the servient owner was competent to make a grant, knew or might have known that some artificial weight existed, and the dominant owner 1 See Gale. p. 381. 2 See ante. p. 301. 3 See Mordue r. Durham. L. R. S C. P. 336 ; Dalton v. Angus, 6 App. Ca<=. 756. 764. 775. 784, 796. 4 6 App. Cas. 740. 5 Affirming Angus v. Dalton. 4 Q. B. D. 162 ; which reversed S. C. 3 ib. So. PART C, SECT. 2.] RIGHT CONTRACT PRESCRIPTION*. 317 acted without deception or concealment. And this presumption cannot be rebutted by mere proof by the servient owner, that he had made no grant either at the commencement or during the continuance of the enjoyment; or even that he had positively dissented from the enjoyment. And the acquisition of the right cannot be prevented by any legal proceedings. It can only be prevented by actual physical interruption, however difficult or inconvenient or ruinous to the person interrupting such inter- ruption may be. 1 Indeed, although it was not necessary for the decision, the doctrine, that the right of support for land in its non-natural state is only a negative or passive easement,- was in the same case expressly challenged by Lords Selborne and Watson. 3 And it was accordingly laid down by Lord Selborne, that it is an easement within s. 2 of the Prescription Act. 4 L'pon this point, however, Lord Blackburn refused in the same case to express an opinion. 5 (e) Generally as to Acquisition. In no case can a right of support for land in its non-natural state Necessary that be acquired, if the person claiming the right is disentitled to sup- g^^^aTe port for the land in its natural state. 6 No doubt Bel! v. Love' support for land in natural contains observations to the contrary. But they were not neces- state, and sary for the decision ; and cannot, it is submitted, be sustained. 5 reaS oiiabiv and In order that a right of support mav be acquired for land in wltll0Ut ne g!i- its non-natural state, the dominant owner must have acted reasonably and without negligence. If injury to a building or 3 ■:• Angus r. Dalton. i Q. B. D. - e Eowbotham r. Wilson. 6 E. k 162, 172. 173. 176, 177. 186, 187, per B. 593, 60a 5 ib. 123 ; 8 tt L Thesigcrand Cotton, L. JJ. ; Dalton 3(8,365. r. Angus. 6 App. - ~ 797, 8 ' 10 Q. B. D. .".47. 570, 571, per - . See Walters v. Pfeil, v. .?., 3fi2 ; 229 ; Woodall r. Hingley, 14 L. T. X. Dodd r. Holme, it. ., the preceding note. per Taunton, J. 3 Richards v. Jenkins, 17 W. R. 32, 7 See Staffordshire Canal Co. r. 33. Hallen, 6 V,. & C. 317. 4 See Dodd r. Holme, U.S., 10b, EOS, 8 Of course it may in its turn be 507. acquired as an casement. a Wallers r. Pfeil, M. & M. 302 ; PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 319 difficulty in ascertaining what tlie intention of the parties, or (in cases decided under Acts of Parliament) of the legislature, really was. It will he remembered, that, in the case of land in its natural state, its owner is entitled, primd facie, to support; 1 and that, in the case of land in its non-natural state, a grant or reservation of the right of support is, under certain circumstances, 2 primd facie, implied. The difficulty, therefore, in the class of cases now in question, has usually been to ascertain, whether or not the provisions used by the parties or the legislature showed an intention, either in the case of land in its natural state, or in the case of land in its non-natural state, to exclude the presumption which the law would otherwise have raised, and to make a contract by which alone the rights of the parties were to be governed. Such provisions, except so far as they can be grouped together, 3 have usually been of four different kinds: — (1) Provisions unconditionally obliging the mine owner to leave minerals u n worked ' ' : (2) provisions securing compensation to the mine owner either as damages or as purchase money " : (3) provisions securing compensation to the surface owner for damage 6 : and (4) provisions relieving the mine owner from liability for damage. 7 (a) Generally. A right of support, which would otherwise exist, will not be Right which excluded by mere implication founded upon conjecture. 8 For w ig e ex ^t ^ ot example, as has been already seen, 9 the usual reservation of a ? xcl ™ de <* h >' 1 j ' implication. royalty ; although pointing at the removal of the demised minerals on a large scale ; is not, of itself, sufficient to disturb the presumption, that the right of support is reserved. So the clause commonly inserted in an Inclosure Act, under which the mines are reserved to the lord, of holding and enjoying them " in as full, ample, and beneficial a manner to all intents and pur- poses " as he could have done in case the Act had not been 1 Ante, pp. 294 et seq. ' See infra (e). 2 Ante, pp. 310 et sea. 8 See Proud r. Bate.?, 34 L. J. Ch. 3 See infra (a). 412; Davis v. Treharne, 6 App. Gas. 4 See infra (£). 469. 5 See infra (7). ° Ants, p. 297. 6 See infra (5). 3£0 NEIGHBOURS — SUPPORT — EXISTENCE OF RIGHT — [CHAP. XV. made, is not, of itself, sufficient to disturb the presump- tion, that the right of support is granted. A right of holding and enjoying mines is merely incidental to their ownership. And it is immaterial, that, before the Act, the lord might have worked without regard to the support, provided he left a sufficiency of common. 1 By the Act the rights of the commoners become freehold rights ; and the clause in question must there- fore be read with reference to such freehold rights, and so as not to prejudice them. 2 So the clause commonly inserted in an instrument of severance giving full liberties of working and winning is not, of itself, sufficient to disturb the presump- tion, that the right of support is granted or reserved. 3 Such a clause only gives to the mine owner in express words what, in its absence, he would have by implication. 4 So the facts, that a lessee has covenanted to work "in the usual and most approved way " in which other works of the like kind are per- formed in the district in question, and has complied with his covenant, will not relieve him from liability for withdrawing support, if on other grounds he would have been liable. 5 And it is immaterial, that the common mode of working in such district is to work up to the barrier, and then, in coming back, to cut away the pillars which are left. 6 Such a covenant merely refers to the manner of w r orking for mining purposes, 7 and con- sistently with the other legal rights of the parties. 8 Mumly r. Munrfy v. Rutland 9 was decided on similar principles. Rutland. - 1 1 There the owner of land, under which were several strata of coal, demised one of the upper strata to the plaintiff; re- serving to himself and his lessees the right of working any 1 See ante, p. 295. Treharne, 6 App. Cas. 460. See. how- - See Bell v. Love, 10 Q. B. P. 547. ever, Rowbotham v. Wilson, 8 H. L. 565—570. Cas. 363, 364. 3 See Harris v. Ryding, 5 M. & W. 4 See ante, pp. 273, 274. CO ; Smart v. Morton, 5 E. & B. 30 ; 5 See Buchanan r. Andrew, v. x., Roberts v. Haines, 6 i b. 643 ; Haines r. 292 ; Davis v. Treharne, ?/. s., 464. Roberts, 7 i b. 625 ; Cal. R. Co. v. Sprot, 6 See Shafto i\ Johnson, 8 B. & S. 2 Macq. 449 ; Proud v. Bates, 34 L. J. 256 n. Ch. 406, 412 ; Bell r. Wilson, 1 Ch. 303 ; ' Davis r. Treharne, ;/. g., 464. Hext v. Gill, 7 Ch. 714 ; Buchanan >\ 8 Shafto v. Johnson, u.s. The dicta Andrew, L. R. 2 Sc. & D. 290 ; Aspden to the contrary in Eadon r. Jeff- v. Seddon, 10 Ch. 402 ; Bell v. Love, cock, L. R. 7 Exch. 389, cr.nnot be u. s., 562, 563, 570. Cf. Dugdale v. sustained. Robertson, 3 K. & J. 695; Davis v. 9 23 Ch. D. SI. PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 321 coal not included in that demise, and the same powers and privileges with respect to such last -mentioned coal as if that demise had not been made ; provided, that in exercising such powers and privileges the working of the coal then demised should not be prevented or " unnecessarily interfered with," and that compensation should be made to the plaintiff, for any "necessary interference" with the workings. It was held, 1 that the provisions of the lease were unintelligible, and could not determine the rights of the parlies ; and that, if the lessor wished to reserve the right of withdrawing support from the demised stratum, he should have done so in plain terms. On the other hand, an instrument, which would otherwise be Right which construed as excluding the right of support, will not be con- w j' se ' he cx _" strued as preserving it on the mere ground, that it requires the cluJeJ nc,t 10 ° * preserved by minerals to be " properly worked." 2 implication. (/3) Provisions unconditionally obliging Mine Owner to leave Minerals univorked. In Haines v. Roberts 3 an Inclosure Act, after giving power Haines v. to allot the common and waste lands of a manor, enacted, that it should be lawful for the lord of the manor to enter upon the allotments to search for and get coal, &c. It also enacted, that the lord should not open any work on the surface within forty yards of any dwelling-house then or thereafter to be erected, nor get any coal or ironstone under such dwelling-house within the perpendicular distance of forty yards from the foundations. It was held, that the prohibition against working within forty yards did uot entitle the lord to work at a greater distance in such a manner as to interfere with the right of support. 4 In Dugdale v. . . , _., . « -, -, R Robertson. Dugdale v. Robertson 5 the mines under ol4 acres ot land," 1 By the Court of Appeal. Kay, J., weight of the house, the ground would thought, that the lease partially ex- have given way : see, upon this point, eluded the right of support. ante, p. 301. And, having regard to 2 Buchanan v. Andrew, L. R. 2 Sc. the reference to houses in the Act, & D. 292. there was an implied right of support 3 7 E. & B. 625, affirming Roberts r. for the house : see ante, pp. 311, 312. Haines, 6 ib. 643. 5 3 K. & J. 605. Sec also ante, pp. 4 As the result of the working the 212, 213. dwelling-house was injured. But the 6 And not merely, it will be ob- jury found, that even w'thout the served, a particular bed of coal : cf., v 3£2 NEIGHBOURS — SUPPORT — EXISTENCE OF EIGHT — [CHAP. XV. delineated on a plan attached to the lease, were demised to the defendants ; with full liberty to work them, and to open pits, &c, except in or upon certain demesne lands belonging to a mansion, and consisting of about four acres ; provided that all pits or works sunk or raised for the purpose of working the minerals under certain ornamental grounds, surrounding the demesne lands, and coloured yellow upon the plau, should be sunk and raised at the furthest point from the mansion-house at the part coloured yellow. The defendants proceeded (but without infringing the special provisions) to excavate under the lands coloured yellow, and the mansion in consequence began to give way. On a bill being filed by the successors of the lessor, it was held, that the plaintiffs were entitled to the benefit both of the special provisions and of the prima facie right, Shaftov. A different construction was adopted in Shafto v. Johnson. 1 Johnson. . . ' Ihere the plaintiff s testator granted a lease of coal mines, in which the lessees covenanted to work the colliery in a proper manner, and according to the best and most approved method of working, and so as to produce with safety the greatest quantity of merchantable coals from and out of each and every of the workable seams thereof; and not knowingly to do or suffer to be done any wilful or negligent act, which might endanger the colliery, or occasion any loss thereto ; and not to sink pits within 200 yards of a dwelling-house; and to leave unwrought the coal under a mansion-house, and under certain specified gardens, pleasure grounds, and parks. The lease contained other provisions for the security of these specified portions of the surface, and for making compensation for damage to the portions not specially protected. On a bill for an in- junction to restrain the lessees from working without leaving sufficient support for the portions of the surface not specially protected, it was held, that the whole provisions of the lease taken together showed a sufficient intention to exclude the right of support. It was considered, that the leading features of the lease were (1) the intention, in preference to everything on this point, Eadon r. Jeffcock, L. R. 1 8 B. k S. 2.j2 n. 7 Exch. 379. PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 323 else, to provide for the safety of the mine ; and (2) the covenant (not by way of privilege to the lessees, but by way of positive obligation upon them, and for the benefit of the lessor) to get all the coal, which could be got with safety to the mine. 1 So in Eadon v. Eadon v. Jeffcochr There a particular bed of coal (exclusive of those lying under it) was demised with working powers to persons through whom the defendants claimed. The lease reserved a minimum rent of ,£200 as for 2 a. 1 r. 1G p., and a further yearly rent of £85 per acre for coal actually got beyond the 2 a. 1 r. 16 p., " including all ribs and pillars left in working the coal," except certain pillars of specified dimensions, which the lessees bound themselves to leave during the whole of the term. The lessees also covenanted to work the mines in a good and workmanlike manner. The plaintiffs claimed under the lessor. The pillars specified in the lease were left. The defendants worked properly ; but their working caused a subsidence, and this injured the plaintiffs' land and certain buildings which had been shortly before erected thereon. 3 It was held, that the defendants were not liable for the injury. 4 The facts, that a particular bed of coal only was demised, and that a minimum rent was reserved, were held to form material considerations in construing the lease. 5 (y) Provisions securing Compensation to Mine Owner either as Damages or as Purchase Money. In Caledonian R C. v. Sprot 6 a railway company had been CahR. C. v. incorporated by an Act passed in 1827. The Act, after giving pr ° 1 See also Eadon v. Jeffcock, L. R. 2 L. R. 7 Ex. 379. 7 Ex. 389 : and cf. Dugdale v, Robert- 3 The land would have subsided son, 3 K. & J. 695, ante, p. 321. The without the buildings: see, upon this construction adopted in Shafto v. point, ante, p. 301. Johnson was approved in Taylor v. * Per Cleasby and Martin, BB., Shafto, 8 B. & S. 228, 247. It was Bramwell, B., doubting. For obser- there held, that the existence of the vations on some of the dicta in this lease mentioned in Shafto r. Johnson case, see ante, pp. 296, 297. constituted, in a subsequent sale of 5 Cf. Dugdale v. Robertson, 3 K. & the surface by the reversioner, a breach J. 695; ante, p. 321; Chapman r. of the reversioner's covenant, that the Day, 47 L. T. 705, 709. Cf. also Taylor sale was made free from incumbrances; r. St. Helens, G Ch. D. 264: see pp. so as to entitle the surface owner to 275, 276. damages for subsidence by reason of 6 2 Macq. 449. the lessees' workings : see ante, p. 210. V2 324 NEIGHBOURS— SUPPORT— EXISTENCE OF RIGHT — [CHAP. XV. the company compulsory purchasing powers, provided, that it should be lawful for landowners, in selling their lands, to except the mines, and that the company should in that event have no right of property in the mines. The Act also provided, that compensation should be made to any landowner, who should sustain damage through the exercise of any of the powers thereby conferred. In 1834 Sprot conveyed to the company a portion of his land for the purposes of the railway, which the company intended to construct. The deed excepted the mines; with full power to search for, win, and carry away, the minerals. No provision was made as to adjacent or sub- jacent support. The Caledonian Company derived title from the company incorporated in 1827. In 1850 Sprot proceeded to work underneath the land conveyed, and also underneath his own adjacent land. The Caledonian Company objected to the workings, as being likely to endanger the safety of the railway. Sprot insisted, that they were only entitled to stop the workings upon the terms of compensating him, but this they refused to do. It was considered by the House of Lords, that the compensation mentioned in the Act referred exclusively to the execution by the company of their powers ; and that it could not refer to any damage which Sprot might have sustained by his own act in having granted, (if he in fact had granted,) by implication in the deed of 1834 the right of adjacent and sub- jacent support. 1 It was also considered, according to a principle before stated, 2 that such a grant had in fact been made. It was, therefore, held, that Sprot was not entitled to work, so as to withdraw adjacent or subjacent support. 3 Elliot v. Elliot v. N. E. R. C. 4 was a somewhat similar case. There the company had been incorporated by an Act passed in 1834. The Act recited the expediency of making the railway, and of throwing a bridge over a particular river ; and it then gave the company compulsory purchasing powers for the purposes of the railway. Sect. 27 reserved to the landowners the mines under the 1 Cf. E. v. Aire and Calder Nav. Co. &c, R. C. v. Brand, L. R. 4 H. L. 224, SOL. J. Q. B. 337, 351. per Lord Cairns ; Aspden v. Seildon, " Ante, pp. 311, 312. 10 Ch. 404. 3 Cf. Caledonian R. C. r. Belhaven, 4 10 H. L. C. 333. 3 Macq. 56. See also Hammersmith, N. E. R. C. PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 32 = lands to be purchased, with full working powers, " so that no damage or obstruction be done or thereby occur to or near such railway or other works." l Sect. 28 provided, that, as soon as the landowners in working such mines approached within twenty yards of any masonry or building belonging to the company, they should give notice to the company; that the company might thereupon compel a sale within the twenty yards ; and that, if they did not do so, the owners might work, provided they worked in the usual and ordinary manner, and did no avoidable damage. The company purchased land under their powers from various persons, including a Mr. Boulcott ; and they then proceeded to construct their railway, and to build their bridge, making one end of the bridge rest on the land purchased from Boulcott. The bridge was finished in 1838, and was of great weight and solidity. The defendant, who was a lessee from Boulcott of the mines under the land purchased, commenced mining operations in 1859 near the bridge, and the suit was instituted to restrain him from with- drawing support. It was contended, that the 27th section should be interpreted by the 28th ; that " damage " in the 27th section therefore meant " damage avoidable by reasonable and proper working " ; and that the meaning of the two sections taken together was, that the company were entitled to purchase a limited amount of support, and could claim no other support, lateral or vertical. The House of Lords, how- ever, considered, that the two sections were independent of each other ; that the Legislature, not unreasonably thinking that the ordinary works of the railway would put but little extra weight upon the surface, intended by sect. 27 to provide for such ordinary works ; and that the Legislature intended sect. 28 to apply exclusively to works of weighty masonry. It was, accordingly, held, (1) that the effect of the two sections taken together was, that, except within twenty yards underneath the masonry, (for which special provision was made,) there was no power under any circumstances to work, unless on the condition 1 Cf. with these words the similar different construction there placed words used in Dudley Canal Co. v. thereon. Grazebrook, infra, p. 327, and the 326 NEIGHBOURS — SUPPORT— EXISTENCE OF RIGHT — [CHAP. XV. N. E. R. C. v. Crossland. Dudley Canal Co. v. Graze- brook. of causing no obstruction or damage. And it was held (2) that the working mentioned in sect. 28 meant working under the land conveyed ; that this could only refer to subjacent working ; and that the implied grant of the right of adjacent support was not, therefore, excluded. 1 So also in N. E. R. C. v. Crossland. 2 There an Act of 1830, under which a railway company had been incorporated, autho- rised the compulsory purchase of land, and reserved the mines under the land purchased to the landowner; but provided, that in working them, " no damage or obstruction be thereby done or occur to or in such railway or works." Soon after the passing of this Act the company purchased land, together with the privilege of making an arched tunnel therein. An Act of 1836, under which another railway company had been incor- porated, contained a clause giving them an option of purchasing any minerals the working of which would be likely to injure their railway. In 1844 the property and rights of the first company were purchased by the second company. The plaintiffs derived title from the second company. The defendant, who represented the persons whose land had been purchased, gave notice to the plaintiffs in 18G2, that he intended to work the minerals under and on each side of the tunnel ; and he called upon the plaintiffs to exercise their option of purchasing them. The plaintiffs, considering, that their rights were governed by the Act of 1830, refused to do this ; and they filed a bill for an injunction. It was held, that the Act gave the plaintiffs the right of vertical sivpport for the tunnel, and that the law gave them the right of lateral support as flowing out of the contract. Dudley Canal Co. v. Grazebrook? was differently decided. There, the company had been incorporated by an Act passed in 1776. The Act, after giving the company power to make a canal, and aqueducts for supplying it, provided, that no owner of any mines should work them within twelve yards from the canal, or under any part of the canal or aqueducts, or under any land lying within twelve yards from either side of the canal or 1 Affirming N. E. R. C. v. Elliot, 2 De G. F. & J. 423, which affirmed S. C. 1 J. &H. 145. 2 2 J. & H. 565 ; 4 De G. F. & J. 550. 3 1 B. & Ad. 59. TART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 307 aqueducts, "except as hereinafter mentioned," without the com- pany's consent. The Act then provided, that, when the owner of any mine lying under the canal or aqueducts, or within twelve yards therefrom, should he desirous of working, he should give the company three months' notice. The company might there- upon inspect the mines, and compel a sale thereof, if they thought proper; and, in default of such inspection or purchase, the owners might work. The Act also provided, that nothing therein contained should defeat the right of the owners to the mines lying under the canal or aqueducts ; and that, subject to the conditions in the Act contained, the owners might work the mines, "provided, that in working such mines no injury be done to the said navigation." The canal and aqueducts were made ; and in 1827 an owner of land lying under an aqueduct gave the company notice of his desire to work. He then pro- ceeded to work in the ordinary and proper manner, and without doing unnecessary damage ; and the aqueduct was in conse- quence injured. It was contended, that the effect of the words " provided, that in working such mines, no injury be done to the said navigation," was to exclude all power under any cir- cumstances to work except on condition of causing no injury. The court, however, held, that the only way of reconciling these words with the preceding provisions, giving a power to compel a sale of the mines, was to construe "no injury " as meaning "no unnecessary or extraordinary injury;" 1 and that the company were, accordingly, without a remedy. 2 The decision was, there- fore, in effect, that the provisions of the Act were inconsistent with a right of subjacent support having been impliedly granted. So in Birmingham Canal Co. v. Dudley ; 3 a decision under Birmingham Canal Co. v. Dudley. 1 Cf. this construction with the tion did not contain the words " pro- construction placed on the words " eo vided that in working the mines no that no damage or obstruction be injury be done to the said naviga- done or thereby occur to or near such tion ;" and where there was, there- railway or other works," in Elliot v. fore, no such difficulty as that, which N. E. R. C, and on similar words in arose in Dudley Canal Co. v. Graze- N. E. R. C. v. Crossland ; ante, pp. brook. See also Stourbridge Canal 324, 325, 326. Co. v. Dudley, 3 E. & E. 409 ; and 2 Overruling Birmingham Canal cf. Dunn v. Birmingham Canal Co., Co. v. Hawkesford, 7 East, 371 n. See L. R. 7 Q. B. 244, 265, 272, 274 ; 8 ib. also Wyrley Canal Co. v. Bradley, 42, 46. 7 East, 368, where the Act in ques- 3 7 H. & N. 969. Lheckley. ;^S NEIGHBOUES — StJPPOET— EXISTENCE OF EIGHT — [CHAP. XV. the same Act, but under a different section. The section there in question provided, that no owner of mines should carry on any work for getting such mines under any tunnel or within twenty yards of the same without the consent of the company. It was contended, that the words "except as hereinafter mentioned;" 1 did not apply to this section; and that the section accordingly imposed a prohibition in the case of tunnels which was absolute. It was, however, held, that the prohibition was subject to the same exception as that applicable to working within twelve yards ; and that the company could not therefore require the minerals within the twenty yards' limit to be left unworked without paying for them. Mid. R. c. v. So in Midland Rail. Co. v. Ck&Hdey? There, a Canal Act reserved the mines and minerals " within and under" 4 the land, through which the canal was to be made, to the owners of the land ; and it empowered the owners, (subject to the restrictions thereinafter contained), to work and get such mines and minerals, not thereby injuring the navigation or the works. By subsequent sections the owners of mines were prohibited from getting minerals under or within ten yards from the canal without the consent of the canal proprietors. But the canal proprietors were, if they withheld their consent, required to com- pensate such owners in the manner provided by the Act. The defendant was the lessee of a quarry adjacent to the canal ; and he derived title from the person, who had sold to the proprietors the land on which the canal was made. The defendant com- menced working more than ten yards from the canal, but his working was of a nature to endanger its safety ; and the suit was instituted to restrain him from proceeding. It was held, that the canal proprietors were entitled to adjacent support beyond the teu yards' limit. But it was also held, that the pro- visions of the Act as to compensation extended by implication to workings beyond the limit ; and that the canal proprietors were not, therefore, entitled to stop the working without com- pensating the defendant in the same mauner as if the quarry had been within the limit. 1 Ante, p. 327. 3 4 £ q 19 - Following Birmingham Canal Co. 4 See. as to these words, ante, p. 13. v. Swindell. 7 H. & N. 080 n. PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS; 3£J) The principle of the decision in Dudley Canal Co. v. Graze- Rail. ci. Cons. brook has been acted on in the cases decided under ss. 77, 78, and 79 of the Rail. CI. Cons. Act, 1S45. 1 The first of these Fletcher v. cases was Fletcher v. G. W. li. C.~ There, the company by '' ll ' " agreement with the owner purchased land for the purpose of making a railway. They took a conveyance in the form given by the L. C. Cons. Act, 1845, sched. A. The owner, pur- suant to s. 78 of the R. C. Cons. Act of 1845, gave the company notice of his intention to work his mines within the forty yards' limit. The company gave the owner notice that the work- ing of the mines was likely to damage their works ; but they refused to pay the owner a compensation, which had been assessed under s. 78. It was proved, that, if the mines were worked, the surface, even in its natural state and without the railway, would subside. 3 It was (notwithstanding the last- mentioned fact) held, that the provisions of the Act were sufficient to exclude the implication of a grant of the right of adjacent or subjacent support ; that the owner of the minerals was entitled to get them, notwithstanding that the company's works might thereby be injured ; and that, therefore, under the cir- cumstances of the case, he was entitled to recover the compen- sation which had been assessed. This case was approved and followed by the House of Lords in G. W. R. C. v. Bennett ; 4 G. W. R. c. r. , , ...... ...... Bennett where, under precisely similar circumstances, a similar decision was arrived at. 5 So also in L. & X. W. R C. v. AcJrroyd. 6 There, a land- Compulsory " purchase or owner, by a deed executed in December, 1847, granted to a easements, railway company, who purchased under compulsory powers, and through whom the plaintiffs derived title, the right to make and maintain a tunnel. It was contended, that this was a grant of a mere easement, and that it could not have the same effect as a grant of the land actually occupied by the tunnel would have had. The court, however, held, that the 1 S & Vict. c. 20. The sects, are 5 .See also Dunn v. Birniingharn cited ante pp. 5. et ssq. («)• Canal Co. L. B. 7 Q. B. 266 : Mid. B. " : 4 E. & X. 242 : affirmed norn. Co. r. Haunchwood &c. Co. 20 Ch. D. G. W. R. Co. v. Fletcher. 5 ib. 689. 5t>l ; rountney r. Clayton, 31 W. R., 3 See 4 H. A: X. 247. See, as to 504, CC5, 066. Cf. Cromford Canal Co. this point, ante p. 301. v. Cutts, 5 E. C. 442. * L. E. 2 H. L. 27. 6 31 L. J. Ch. 588. 330 NEIGHBOURS — SUPPORT — EXISTENCE OF RIGHT — [ciIAr. XV. landowner's right to work minerals under ss. 77, 78, and 79 of the R. C. Cons. Act, 1845, was the same as if the land actually occupied by the tunnel had been purchased ; and a bill filed to require the landowner to leave sufficient adjacent and subjacent support for the tunnel was accordingly dismissed. 1 Effect of And the Rail. CI. Cons. Act, 1845, does not exclusively apply, before compul- where the owner of the surface is also the owner of the mines sory purchase. a ^ ^ e ^ me f ^e compulsory purchase. It equally applies, where there has been a previous severance of the surface and the mines. And in the latter case it is immaterial, that the mine owner could not have withdrawn the support as against the vendor to the company. Thus, in Pountney v. Clayton? the owner of land demised the subjacent mines to the defen- dant. A railway company afterwards compulsorily acquired the land excepted from the demise. They subsequently sold as "superfluous" part of the land so acquired ; and that part be- came vested in the plaintiff. The defendant withdrew support from the surface. It was held, that the company could not give to their purchaser any greater right than they themselves possessed ; and that the plaintiff was, therefore, without a remedy. On the other hand, where a landowner conveys the sur- face in the first instance by an ordinary private assurance ; and the grantee then sells such surface to a railway company, who purchase under compulsory powers ; the company do not, apparently, possess a right equal to that possessed by their im- mediate vendor. In such a case the mine owner is, apparently, entitled to get his minerals, notwithstanding that the works of the company may thereby be injured. 3 And it is no objection to these conclusions, that they may give the mine owner an advantage for which he has not stipulated, and has not paid. If they in fact give it to him, it is because the Legislature has thought proper that he should have it. It seems, however, doubtful, whether, of necessity, they give him such an ad- vantage. It may perhaps be, that in any compensation, which 1 Cf. the Sc. case of Cal. E. Co. v. 688, per Bowen, L. J.; disapproving Henderson, 4 Sess. Cas. (4th ser.) 140. of the dictum to the contrary of Cock 2 31 w - R -» 66i - burn, C. J., in G. W. R. C. v. Fletcher, 3 See Pountney v. Clayton, 31 W.R., 5 H. & N., 697, 698. PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 331 he obtains as the price of preventing him from working, the vendor to the company is entitled to share. 1 In R. v. Leeds, &c, Rail. Co.,~ and R. v. Aire, &c, Nav. R. v. Leeds Co., 3 the principle of the cases decided under the Rail. CI. R %, Air'c&c Cons. Act was held inapplicable. In both these cases the Acts Nav - c - of Parliament, under which the companies were constituted, authorized compulsory purchases of land, reserving the mines to the landowners; and compulsory purchases took place ac- cordingly. However, in the latter case, the Act did not contain any clauses giving the company the right of purchasing the mines, 4 or any clauses for compensating the mine-owner. And in both cases, it was, at the time of the purchase, known, that there were mines under the land purchased ; and the purchase- money was agreed to and paid with that knowledge. It was in both cases held, that the right of support was purchased and paid for in the first instance. 5 (d) Provisions securing Compensation to Surface Owner for Damage. In Harris v. Ryding, 6 A., being seised in fee of land, granted Harris v. it to P. in fee ; excepting the mines and minerals, with free y ing * liberty to come into and upon the premises to dig them, and every part thereof; " making a fair compensation for the damage to be done to the surface of the premises and the pasture and crops growing thereon." It was held that A. was not entitled to take all the mines, but only so much as he could, leaving a reasonable support for the surface ; and that, on the sinking of the surface by reason of his working, he was liable. 7 The com- 1 See Pountney v. Clayton. 31 W. R. a 30 L. J. Q. B. 337. 688,^>rBowen,L.J. The Wat. CI. Act, * Cf. N. E. R. Co. v. Crossland, 2 J. 10 & 11 Vict. c. 17, contains provisions k H. 565 ; 4 De G. F. & J. 550. with respect to mines lying under or 5 Cf. Cal. R. Co. v. Sprot. 2 Macq. near lands purchased by Wat. Com- 455. panics, which are substantially the 6 5 M. & W. 60. same, and would no doubt receive the 7 There were houses on the land at same construction, as ss. 77, 78 and the time of the subsidence. The 79 of the Rail. CI. Cons. Act. 1845 : defendants did not, however, state, see ss. 18, 22 and 23 of the Wat. CI. that, in removing their coal, they left Act. sufficient support for the surface in its 2 3 A. & E. 683. natural state : they claimed an abso- 832 NEIGHBOURS — SUPPORT — EXISTENCE OF EIGHT — [CHAP. XV. Smart v Morton. pcnsation clause was relied on in argument for the purpose of showing, that the parties themselves, having fixed upon a par- ticular remedy for the damage resulting from the workings, must, by implication, be held to have excluded the ordinary remedy. But this contention failed. The Court considered that the compensation clause applied, or might be deemed to apply, to damage resulting from acts done on the surface under the reserved liberty ; and that, even if this were not so, and the clause applied to injuries from operations below, it merely made the remedy cumulative. 1 In Smart v. Morton," a similar construction was adopted ; although compensation was there provided for damage "by reason of digging, working, sinking, breaking of ground, and wayleave or other matter or thing used or exercised in working or leading of coals." And a similar construction was approved of in Davis v. Treharne ; 3 although it was there assumed, 1 that the lessee was at liberty to do and execute all necessary or convenient acts, works, and things, upon, in " or under," or above the premises, making compensa- tion for all damage occasioned by the exercise of the liberties. Bell v. Love. There was less difficulty in Bell v. Love, 5 a case under an In- closure Act. There, however, the Act only provided for making satisfaction " for the damages and spoil of the ground " occa- sioned to the persons at the time in possession, such satisfaction not to exceed £5 yearly " during the time " of such working, for every acre damaged or spoiled. It was in this case evident, that the compensation clause pointed to temporary and not permanent damage ; the occupier being alone entitled to receive the compensation, and a period being limited for the duration of its payment. 6 Davis V. Treharne lute right to remove the support. See, as to this, the judgment of Parke, B. p. 71 ; and sec ante, p. 301. 1 See also Berkeley v. Shafto, 15 C. B. N. S. 79, 92 ; Williams v. Bagnall, 15 W. R. 27-1, 275 ; Smith v. Darby, L. R. 7 Q. B. 726 ; Chapman v. Day, 47 L. T. 707, 70S. Cf. N. E. R. Co. v. Crossland, 2 J. & H. 578. 2 5 E. & B. 30. 3 6 App. Cas. 460. 4 Merely argwnehti causa. The reserved liberties in the lease of the surface were more extensive than the granted liberties in the previous lease of the mines, and the former liberties could not of course confer any rights upon the mineral lessee which he had not under the latter. Cf. on Ibis point, Eadon v. Jeffcock,L. R. 7 Exch. ante, p. 305. 5 10 Q. B. D. 547. 6 See also Roberts v. Haines, 6 E. & B. 043 ; Haines v. Roberts, 7 ib. 625 PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 333 A different construction was adopted in Smith v. Darby. 1 Smith <•. There a person, through whom the plaintiff claimed, and who y " was seised in fee of certain lands and of the underlying mines, demised the mines, with full power to the lessees to work the same; making reasonable compensation to the lessors and their tenants for damage done by the surface being covered with rubbish, or for damage done to the lands in sinking and gettino* the minerals, " or for injury done in dwelling-houses " on the lands " by getting minerals, &c, under or near the same," according to the covenant thereinafter contained. Then fol- lowed a covenant, providing, that, in case damage should be caused to the dwelling-houses by the mining operations, the lessees should rebuild or repair them ; and that they should compensate the lessor and his tenants for damage done to the crops and land. It was held, that these provisions were suffi- cient to exclude the right of support. It should be observed, that, in this case, 2 the compensation clause could not, as in Harris v. Rycling? be read as confined to acts done on the surface ; and that the remedy could not, therefore, be considered cumulative. It was evident, that injury was contemplated to the dwelling-houses ; and this could only proceed from mining operations below. 4 So in Aspden v. Seddon. 5 There a piece of Aspden v. land was conveyed ; excepting the underlying mines, with liberty to search for and carry away the minerals, " but without entering on the surface ;" the grantor making compensation for all damage done by the exercise of the excepted liberties to the erections to be made on the piece of land. The consideration for the conveyance partly consisted of certain covenants by the (but see p. 627. 7«'?' Martin B.); Richards of coal, or where lords work coal by v. Jenkins, 17 W. .E. 30. Cf. Hodgson custom under copyhold lands:" see v. Moulson, 18 C. B. N. S. 332. Cf. p. 688, per Watson, B. Cf. the Scotch also Proud v. Bates, 34 L. J. Ch. 412. cases of Bain v. Hamilton, 6 Sess. Cas. The construction placed upon " surface (ser. 3) 1 ; Galbraith v. Eglington Co., 7 damage" in Harris r. Ryding and Sess. Cass. (ser. 3), 167. Smart r. Morton was adopted in l L. R. 7 Q. B. 716. Allaway v. Wagstaff, 4 H. & N. 681. • - See the judgment of Lush, J. at There surface damage was denned to p. 727. mean "damage to the crops by using 3 5 M. & W. 60, ante p. 331. the surface, or by the smoke coming 4 Cf. Williams r. Bagnall, 15 \V '. R. from the colliery works or pit heaps 273, Infra, 336. in respect of which compensation is 5 10 Ch. 394. payable under leases or reservations Wakefield. 334 NEIGHBOURS — SUPPORT — EXISTENCE OF RIGHT — [ciIAP. XV. grantee, including a covenant to erect and keep in repair a cotton-mill on the piece of land. The grantee erected the cotton-mill. The mine owner worked by means of a pit out- side the boundary of the surface owner ; and, in consequence of the working, the land subsided, and the mill was injured. It was held, that, notwithstanding the covenant to erect the mill, 1 the mine owner could not be restrained from working, so as to let down the surface. It was in this case evident, that, as the mine owner was precluded from entering upon the surface, the compensation which he was to pay could only refer to under- ground workings. 2 Buccleuch «. Buccleuch v. Wakefield 3 was a case of greater difficulty. There an Inclosure Act, after directing certain allotments to be sold to defray the expenses of the Act, reserved to the lord of the manor all mines under the lands directed to be divided and inclosed. Then followed certain specially enumerated powers of a very elaborate kind ; amongst which was a power to destroy the surface for an indefinite period by the deposit of refuse, the erection of buildings, and the formation of channels. These powers were to be exercised in as full and ample a manner as if the Act had not been passed ; the lord making reasonable com- pensation for damage done by his mining operations to the persons sustaining such damage. The mines were very valu- able ; and previously to the Act the lord had frequently worked them, paying compensation for the damage which he did. And, regard being had to the fact of the soil having previously been commonable, the reserved powers were far more extensive than any which the lord would have had if the Act had not passed. Mr. Wakefield was the purchaser of some of the land which had been sold to defray the expenses of the Act. The Duke of Buccleuch was the lord of the manor. It was held, that the intention of the legislature was, that the completest power should be given of working the mines ; and, therefore, 1 Cf., upon this point, Buchanan v. the right to bring an action at law Andrew, L. R. 2 Sc. & D. 286, infra, for damages. An action was accord- P- 336 - ingly brought, which resulted in favour 2 Cf. Davis v. Treharne, 6 App. Cas. of the surface owner : see Aspden r. 468 ; Dixon v. Wood, W. N. 1882, p. Seddon, 1 Exch. D. 496. 176. The bill in Aspden v. Seddon 3 L. R. 4. H. L. 377. was dismissed, without prejudice to PART C, SECT. 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 335 that the lord was entitled to work to an extent, which might reach to the utter destruction of the land above, subject only to the liability to pay compensation for damage done. 1 (e) Provisions relieving Mine Owner from Liability for Damage. In Rowbotham v. Wilson? certain land was enclosed by an Rowbotham award made in 1770 under an Inclosure Act ; and the surface was allotted to a person through whom the plaintiff claimed, and the mines to a person through whom the defendant claimed. By a clause in the award all the allottees of the surface, parties to the award, covenanted that the allottees of the mines, parties to the award, their heirs and assigns, should be at liberty to work the mines, and should not be liable to any action for any sinking of the surface. The plaintiff's predecessor executed the award as a deed. The defendant's predecessor did not execute it, but accepted the allotment under it. Houses were afterwards built upon the land ; and, after they had stood undisturbed for more than twenty years, the mineral operations of the defendant caused the surface to sink, and the houses were injured. It was contended, that the covenant, not being a covenant running with the land, could not bind the plaintiff. It was, however, held, that the covenant, although nominally such, was in effect a grant of a right to disturb the surface ; and that the plaintiff was not, therefore, entitled to maintain an action. 3 Richards v. Harper i Richards v. was a case of a different kind. There the owner of freehold and copyhold land adjacent to each other sold the copyhold land ; and by a deed of even date the purchaser covenanted and granted, that the vendor and his heirs might work the mines in the ad- joining freehold without being liable to make compensation for any injury caused by such working to the copyhold, or to certain 1 Reversing Wakefield v. Buccleucli, Wensleydale. See Bell v. Love, 10 4 Eq. 613. See the observations, upon Q. B. D. 5(52. It was contended in this decision, of Mellish, L.J., in Hext Rowbotham v. Wilson, that a support v. Gill, 7 Ch. 71(3, 717. had at all events been acquired for 2 8 H. L. G. 348, affirming S. C. 8 E. the houses by the twenty years' en- & B. 123, which affirmed S. C. G ib. joyment. See, as to this, ante p. 317. 593. 4 L. R. 1 Exch. 199. » See 8 H. L. 0. 3G2, per Lord 336 NEIGHBOURS — SUPPORT EXISTENCE OF RIGHT — [CHAP. XV. Williams v. Bag nail. Buchanan v. Andrew. buildings authorised to be erected thereon. The deed was not entered on the Court Rolls, nor referred to in the surrender. The copyhold was afterwards enfranchised ; and it was conveyed by the purchaser to the Church Building Commissioners, under whom the plaintiff took. Neither the lord of the manor, nor the commissioners, nor the plaintiff, had notice of the deed. The de- fendant, who took the adjoining freehold land under the original vendor, worked the mines thereunder ; and, in so doing, he caused the land of the plaintiff to sink, and damaged the buildings thereon. It was held, that the covenant did not run with the land, and that the defendant was bound to compensate the plaintiff for the injury. 1 In Williams v. Bagwell," lands were conveyed to the pre- decessors of the plaintiffs in fee. The conveyances excepted all mines, with full power to work and get, without entering upon the land and premises ; and without being answerable for any injury whatsoever, which should arise to the said land and premises, or to any buildings which should at any time afterwards be erected thereon by reason of the working and getting, &c. ; and without being liable to any action or suit at law or in equity, costs, charges, losses, damages, or expenses, for, or on account of, any such injury or damage. A lessee from the vendor of all the excepted mines worked them ; and he thereby caused the surface of the plaintiff's land to sink, and in- jured buildings which had been erected thereon subsequently to the conveyance. It was contended, that the provision relieving the vendor from liability applied, or might be taken to apply, as in the case of the compensation clause in Harris v. Ryding? to damage other than that resulting from the removal of the support. It was, however, held, that the prima facie right of the surface owner was completely swept away by the express terms of the contract. 4 So in Buchanan v. 1 Pollock, C. B. rested his decision 362. on the fact, that the land in question had been originally copyhold : but the majority of the Court (Martin, Chan- nell and Figott, BB.) were of opinion, that the result would have been the same if the land had been freehold. Cf. Rowbotham r. Wilson, 8 H. L. Cas. 2 15 W. R. 272. 3 5 M. & W. GO ; ante, p. 331. 4 The right of lateral support was claimed in additon to that of vertical support, but without success : see, upon this point, ante, pp. TOO, 301. PART C, SECT. 2.] CONSTRUCTION OF AMBIGtTOlTS PROVISIONS. 337 Andrew} There a feu of lands was granted, excepting the subjacent mines, with full working powers. The feuar con- tracted to build a house upon the land, according to an elaborately defined plan ; and to maintain it in repair. But the feu contained a provision, that the superior should not be liable for any damage which might arise to the surface feued, or the house which might be erected thereon, by or through the working of the minerals by long-wall workings 2 or other- wise, or which might arise from or through the setting or crushing of any coal-waste. The house was afterwards built ; and it was damaged by the working of the minerals. It was held, notwithstanding the nature of the contract as to building the house and keeping it in repair, that the feuar was without a remedy in damages. 3 And it was held, that, as his right to an injunction depended on his right to damages, he was equally without a remedy by injunction. 4 In Benfieldside Local Board v. Consett Co., 5 a different con- Benfieidside struction was adopted. There commissioners, acting under Consett Co . powers given to them by a local Inclosure Act for inclosing certain commons, set out public highways over the land, and directed that it should be lawful for all persons to use them. The Act reserved to the lord of the manor, his successors and assigns, in the widest terms, all rights belonging to the manor, and all mines, minerals, and quarries, under the commons ; with power to do every act necessary for working and winning them as effectually as he or they could have done in case the Act had not been made, without paying any damages or making any satisfaction. The defendants, who were the assignees of the lord, worked so that parts of one of the roads set out by the commissioners subsided. It was held, that it could not have been intended, that an Act, which appointed a public road, should at the same time legalise a public nuisance by injuring the road ; and that the defendants were therefore liable. 6 1 L. R. 2 Sc. & D. 280. (4th ser.) 375 : affirmed nom. Dixon 2 A method under which the whole v. White, Vv\ N. 1883, p. 52. of the minerals were removed without 4 See 2 Sc. & D. 291, 292, 29G. leaving any support whatever. See Bell r. Love, 10 Q. B. D. 562 3 Cf. Aspden v. Seddon, 10 Ch. 394, 503. ante p. 333. And distinguish the Sc. 5 3 Exch. D. 54. case of White v. Dixon, 9 Sess. Cas. 6 See also Normanton Gas Co. r. z 338 NEIGHBOURS— SUPPORT— EXISTENCE OP RIGHT— [CHAP. XV. (() Remarks on and Result of the Cases. Remarks on Of the cases referred to in division (y) of the present sub- the cases. ^ ^ R Q y< g^ miof . y# jy; # # £ ? and lY> j£. R . (J. v. Crossland, may be reconciled with Dudley Canal Co. v. Grazebrooh, and the decisions under sects. 77, 78, and 79 of the Rail. CI. Cons. Act, 1845, on the following grounds :— The provisions of those sections (in conjunction with the Lands CI. Cons. Act, 1S45, 1 ) were intended to create a special code 2 by which alone the relations of railway proprietors to adjoining landowners were to be governed. The companies were not, in the first instance, in purchasing the surface, to be obliged to make compensation in respect of the mines thereunder. If they thought it likely, that the mines might not be worked for an indefinite period, they might postpone making such compen- sation, until the necessity for so doing arose. 3 Accordingly, in the cases decided under those sections, and in cases like Dudley Canal Co. v. Grazebrooh, which, although not decided under those sections, were decided under Acts of Parlia- ment, the policy of which was very similar, 4 the Courts had little difficulty in holding, that the implication of the grant of the rights of adjacent and subjacent support was excluded. 5 In Col, R. C. v. Sprot, Elliot v. N. E. R. C, and N. E. \R. C. v. Crossland, on the other hand, the Acts of Parliament by which the companies had been incorporated, and the deeds by which they had purchased their lauds, were all of prior date to the passing of the Rail CI. Cons. Act, 1845. And, although, as will have been observed, 6 the injuries com- Pope, 48 L. T. 666, 669: affirmed 3 See ante, p. 8 n. *, and cases there 52 L. J. Q. B. 629. cited. See also Pountney v. Clayton, 1 See infra, Part D. (£). u. s. - The sections of the Rail. 01. Act 4 See the observations of Bayley, J., are prefaced by the words, " And with in Dudley Canal Co. v. Grazebrook, 1 respect to mines lying under or near B. &; Ad. 72 ; and Cockburn, C. J. and the railway be it enacted as follows." Hannen, J. in Dunn v. Birmingham See G. W. R. Co. v. Bennett, L. R. 2 Canal Co., L. R. 7 Q. B. 256, 276, 277, H. L. 40, per Lord Cranworth ; Pount- 279. See also Wyrley Canal Co. v. ney v. Clayton, 31 W R. 665, 667, Bradley, 7 East, 372. per Brett, M. R., and Bowen, L. J. 3 See Mid. R. Co. v. Haunchwood The sections are cited ante pp. 5 n. &c. Co. 20, Ch. D. 558. et seq. 6 See ante, pp. 323, 324, 325, 326. PART 0., SECT 2.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 339 plained of, or sought to be restrained, in the three latter cases were done, or threatened to be done, at times subsequent to the passing of the Rail CI. Cons. Act, 1845, or of enactments of a similar policy, 1 the Courts could not hold, that subsequent legis- lation was intended to control rights previously acquired by the companies. 2 The policy of the Rail. CI. Cons. Act being there- fore inapplicable to cases like Cal. R. C. v. Sprot, Elliot v. JS r . E. R. C, and iY. E. R. C. v. Crossland, there was no reason why the principle, that where a grant is made for a particular object known to both parties at the time of the grant, a reasonable degree of support for the due execution of that object is impliedly granted, 3 should not in those cases be adopted. 4 With respect, generally, to the various cases referred to in divisions (/3), (y), (o), and (e) of the present subject, the following observations may be made. In the earlier cases, the Courts, in construing the instruments before them, apparently adopted the curious mode, both in the case of land in its natural state, and of land in its non-natural state, of assuming, in the first instance, the existence of an intention, that the right of support should not be disturbed ; and of then proceeding to consider, whether the provisions used could not be reconciled with that in- tention. In the later cases, on the other hand, the Courts seem to have assumed nothing ; but to have proceeded at once to construe the instruments before them according to their literal and natural meaning. It is, in many respects, difficult to reconcile the earlier with the later cases ; and, on these grounds, the difficulty seems capable of explanation. 5 It need hardly be added, that the later cases must, at the present day, be con- sidered authoritative. Having regard to these circumstances, the following proposi- Result of the tions may, as the result of the cases, in which the instrument of severance is producible, and in which some contract has been made, or is said to have been made, with respect to support, be considered as established : — 1 Such as the Scotch Railways Act 3 Ante, p. 311. of 1845 in Cal. R. Co. v.. Sprot. 4 See Aspden r. Seddon, 10 Ch. 401, 2 See Cal. R. Co. r. Sprot, 2 Macq. per Mellish, L. J. 458 ; G. W. R. Co. v. Bennett, L. R. 2 5 See Aspden v. Seddon, 10 Ch. 397 H. L. 32, 40. O). l 2 3i0 NEIGHBOURS SUPPORT — EXISTENCE OF RIGHT [CHAP. XV. 1. Instruments of severance are at the present day construed according to their literal and natural meaning, rather than according to preconceived assumptions of the existence of an intention in the parties, or in the Legislature, that the right of support should not be disturbed. 2. Where it appears, from the express words of such instru- ments, or by clear intendment therefrom, that it was the inten- tion to exclude the right, effect will be given to such intention. 3. Where the mine owner is relieved from liability for damage, the surface owner may often be presumed to have been compensated by anticipation. But in other cases the presence of a clause for compensating the surface owner ; l at all events if it refers to underground working ; are material elements in ascertaining' an intention to exclude the right. 4. In cases decided under ss. 77, 78, and 79 of the Rail. CI. Cons. Act, 1845, or under similar provisions, such an intention will usually be presumed. And in such cases it is immaterial, that the surface would have subsided, even if it had been left in its natural state. 2 5. In such cases it is also immaterial, whether the owner of the surface is or is not the owner of the mines at the time of the compulsory purchase. 3 6. But it will be otherwise, where, from the provisions in question, the right appears to have been purchased and paid for in the first instance. 4 7. The common covenants to work in the usual and most approved mode ; or the common clause in an Inclosure Act, under which mines are reserved to the lord, of holding and enjoying them in as full, ample and beneficial a manner as if the Act had not been made ; or the common clauses giving full liberties of working and winning; are not, of themselves, sufficient to exclude the right. 5 8. The right will not be excluded if a public nuisance would be thereby legalized. 6 1 See Aspden v. Seddon, 10 Ch. 396, 31 W. R. 664. 397 O) ; Gill v. Dickinson, 5 Q. B. D. 3 See ante, p. 330. 162 ; Bell v. Love, 10 Q. B. D. 569. * See ante, p. 331. 2 See Fletcher v. G. W. R. Co.; and 5 See ante, pp. 319, 320. G. W. R. Co. v. Bennett ; cited ante, 6 g ee an f e> p 33^ p, 329. See also Pountney v. Clayton, PARTS C, D.] CONSTRUCTION OF AMBIGUOUS PROVISIONS. 341 9. The right may not be excluded by a provision relieving the mine owner from liability, if such provision be constituted, not by a grant, but by a covenant not running with the land. 1 10. Where the right has not been expressly excluded, or where the intention to exclude it is doubtful, the principle formerly 2 mentioned — that the owner of land in its natural state is entitled, prima facie, to support, lateral as well as ver- tical ; and that in whichever way the severance is effected, whether by a grant of the land, excepting the mines, or by a grant of the land (whether in fee simple, or for a term of years,) excepting the surface ;— is applicable in favour of the conten- tion, that the right has been granted or reserved by implication. 3 11. Where, under like circumstances, land is in its non-natural state, the principle formerly mentioned 4 — that where land is purchased, or excepted from a purchase, for a particular object, and such object is known to both parties at the time of the purchase, there is, prima facie, an implied grant or reservation of a reasonable degree of support for the due execution of that object — is applicable in favour of the like contention. PART D.— STATUTORY PROVISIONS AS TO SUPPORT. (a) Generally. Many statutory provisions as to support under Inclosure Generally. Acts; 5 under "Railway Acts; 6 and under Canal Acts; 7 have been already noticed. (/3) Purchases— ss. 16, cfec, Lands Clauses Acts. 77 Bail. CI. Act—ss. 12, 18 Wat. CI. Act. A railway company or a waterworks company, having the Purchases— ,',.,■, i i a 4. Fail, or Wat usual power to purchase lands, have power under ss. lb, et seq. Co » Pee ante, pp. 335, 330. * See ante, p. 311. a Ant6t p . 297. 5 Ante, pp. 321, 332, 334, 335, 337. 3 See Aspden u. Seddon, 10,Ch. 396 6 Ante, pp. 323—326, 329—331. O), 399 («). 7 Ante > p P- 326 ' 327 ' 328, 342 NEIGHBOURS — SUPPORT — [CHAP. XV. of the Lds. CI. Act, 1845, and s. 77 of the Rail. CI. Cons. Act, 1845, or ss. 12 and 18 of the Wat. CI. Act, to purchase mines and minerals; and may do so separately from the rest of the land from the surface down to the centre ; by compulsion ; and notwithstanding that they may have already purchased the surface as a separate tenement. 1 Arid the power, which they also possess, of preventing the working of a mine upon the terms of compensating the owner, does not restrict their power of pur- chase. 3 It may, no doubt, be more convenient for them, as the Legislature enables them, 3 to postpone making compensation in respect of the mines until the necessity arises. 4 But it may on the other hand be both more convenient and more economical for them to purchase the mines at once. 5 Indeed it may be necessary for them to take the latter course, if they desire to be protected against injury from subsidence. For they may have no means of obtaining adequate support for their works without removing the minerals, and substituting artificial props. 6 Their power of purchase is, however, only exercisable in respect of mines and minerals lying under lands within the prescribed territorial limits ; and is only exercisable within the prescribed time. 7 (y) Compensation for not working — ss. 6, 78, 79 Rail. CI, Act—ss. G, 22, 23 Wat. CI. Act— s. 308 Pub. Health Act, 1875. Generally. The questions, which have arisen respecting support under ss. 78 & 79 of the Rail. CI. Con's. Act, 1845, and under ss. 22 & 23 of the Wat, CI. Act, have been already partly considered. 8 Compensation The power of preventing the working of a mine upon the for not working. 1 Errington v. Met. R. Co., 19 Ch. D. M. R. See ante, p. 143. 559 ; ante, pp. 141, 142. They are not - Errington v. Met, R. Co., u. s., 559, in the position of purchasers, who buy 569, 570, 571, 575, 576. under the Lds. CI. Act, but cannot 3 Ante, p. 338. avail themselves of the Rail. CI. Act 4 Errington r. Met. R. Co., v, s., 570, or the Wat. CI. Act. The latter pur- 571. chasers have no power to elect to buy 5 Ante, p. 143. the surface only. If they buy at all, 6 Errington v. Met. R. Co., u. s., 575. they must buy the whole of the land, 7 lb. 570, 575. including the mines. See Pountney 8 Ante, pp. 329, 330, 331. v. Clayton, 31 W. R. 664, per Brett, TART D.] STATUTORY PROVISIONS. 3i3 terms of compensating the owner is in some respects wider and in others narrower than the power of purchasing a mine. The former power is not confined to mines lying under lands within the prescribed territorial limits ; nor is it only exercisable within the prescribed time. It applies to mines under lands outside the limits ; and it is exercisable at all times. 1 On the other hand the company do not by paying the compensation acquire the property in the mines and minerals in respect of which they pay it. Those mines and minerals continue the property of the landowner ; and, although he cannot remove them, neither can the company. 2 The " owner, lessee, or occupier," entitled to give the notice Person entitled mentioned in s. 78 of the Rail. CI. Cons. Act, 1845, and in s. 22 tory notice." 1 " of the Wat. CI. Act, 3 means the person, who has the right to presently work the mine in question. And the compensation to be made under those sections, as the price of stopping an in- tended working, means the compensation to which such person is individually entitled according to his interest. If he may remove the whole produce of the mine, and the extent of his tenure will enable him to do so, the compensation may mean the entire value of the minerals. If his right is not so great ; if he cannot take away the whole, or his tenure will not enable him to do so ; or if he cannot appropriate to his own benefit the whole of the produce; the compensation means that part of the entire value which is proportionate to his interest. And the mere fact, that, in cases of the latter kind, it may often be a matter of extreme difficulty to assess the compensation, seems immaterial. 4 A licensee, if entitled to appropriate the minerals which he gets, 5 is an occupier within the statutory words. 6 On the other hand, the reversioner on a lease cannot obtain Consequent compensation under those sections, although he may show a reversioner. right of his own to be compensated beyond that of the lessee. But he is not, therefore, without a remedy. In such a case ss. 6 1 Errington v. Met. E. Co., 19 Ch. D. be met in assessing the compensation, 570, 575. see the instance put by Mellish, L. J. (G. 2 lb. 575. W. E. Co. r. Smith, 2 Ch. D. 252) of a 3 See ante, pp. 6 n., 9. woman entitled during widowhood. 4 See Smith v. G. W. E. Co., 3 App. 5 See ante, p. 249. Cas. 178, 179, 180, 185, 188, 191. As 6 See Mid. E. Co. r. Haunchwood, to the difficulty which may sometimes &c., Co., 20 Ch. D. 552, 561. 344 NEIGHBOURS— SUPPORT — [CHAP. XV. and 78 of the Rail. CI. Cons. Act, 1845, or ss. G and 22 of the Wat. CI. Act, must be read together ; and the reversioner may avail himself of s. G of the Act in question ; the word " lands " in that section including mines. 1 Thus in Smith v. G. W. R. Go. 2 There the company purchased land under the Rail. CI. Cons. Act, 1845, but did not purchase the subjacent coal. The com- pany constructed a part of their railway on the land so purchased. The landowner subsequently granted a lease of the coal. The lease was at an acreage rent ; and the lessee covenanted to work out all the coal during his term. The lessee gave the company notice of his intention to work within the forty yards' limit. 3 The company thereupon compensated the lessee, and the coal was left unworked. The lessee afterwards surrendered the lease to the landowner ; and the latter sold the mine to the defendant. Shortly before the expiration of the tertn for which the lease had been granted, the defendant gave the company notice of his intention to work ; and he claimed compensation without regard to the payment previously made to the lessee. The company filed their bill, offering compensation, having regard to their previous payment; and asking for an injunction to restrain the defendant from working. It was contended on the part of the defendant, that the company had compensated the lessee and him alone ; and accordingly, until the defendant was compen- 1 Cf. ante, p. 20. Sect. 6 of the Rail. special Act or any Act incorporated CI. Cons. Act, 1845, is as follows :—" In therewith vested in the Company; exercising the power given to the and except where otherwise provided Company by the special Act to con- by this or the special Act the amount struct the railway and to take lands of such compensation shall be ascer- for that purpose the Company shall tained and determined in the manner be subject to the provisions and re- provided by the said Lands Clauses strictions contained in this Act and in Consolidation Act for determining the said Lands Clauses Consolidation questions of compensation with regard Act ; and the Company shall make to to lands purchased or taken under the the owners and occupiers of and all other provisions thereof ; and all the pro- parties interested in any lands taken visions of the said last-mentioned Act or used for the purposes of the railway, shall be applicable to determining the or injuriously affected by the construe- amount of any such compensation and tion thereof, full compensation for the to enforcing the payment or other value of the lands so taken or used, satisfaction thereof." S. 6 of the Wat. and for all damage sustained by such CI. Act is to the same effect, owners occupiers and other parties by 2 3 App. Cas. 165. reason of the exercise as regards such 3 See s. 78, cited ante p. 6 n. lands of the powers by this or the PART D.] STATUTORY PROVISIONS. 345 sated as the then absolute owner, he was entitled to work. It was contended, on the other side, that the Legislature could never have intended, that the company should be obliged to pay more than once for the same coal ; that, if the defendant was thereby prejudiced in respect of royalties to which he might have been entitled under the lease, the Legislature had provided a special method of compensating him under s. G ; and that that compensation they had offered to give him by their bill. The latter contention was upheld b}' the Court, and an injunc- tion was granted. 1 However, even in the case of a company subject to the Rail. These princi- Cl. Cons. Act, 1845, or the Wat. CI. Act, if a notice has been always ap- given and compensation received in respect of one kind of P llcaljle - mineral, such as coal, the owner is not precluded from subse- quently giving a notice and receiving compensation in respect of another kind of mineral, such as ironstone intermixed with the coal. 2 And in the case of a company not so subject, both a reversioner and his lessee may be entitled to receive compensa- tion in respect of the same minerals. 3 A mine owner is obliged to give thirty days' notice to a rail- Length of way or waterworks company of his intention to work out the counter notice, minerals in question. 4 However, the company are not bound to any fixed period after that notice within which they must give a counter-notice. 5 If at any time thereafter they fear danger to the line, they can stop the working, or (if it has been already commenced) the prosecution of the working, by a notice of their willingness to pay compensation for the minerals which are un- wrought, and which they desire to be left standing. No doubt 1 See the form of the decree pp. 183. pany is entitled to share in the com- 192, 193. It affirmed G. W. R. Co. v. pensation which may be awarded to Smith, 2 Ch. D. 235. the mine owner. See ante pp. 330, 2 See Smith v. G. W. E. Co., 3 App. 331. Cas. 182, per Lord Cairns. 4 See R. C. Cons. Act, 1845, s. 78, 3 See Barnsley Canal Co. v. Twibell, cited ante, p. 6, n. ; Wat. CI. Act, s. 7 Beav. 19. Where the owner of a 22. The notice should in all cases be surface is not the owner of the mines sufficient in point of form : see Dixon at the date of a compulsory purchase v. Cal., &c., Companies, 5 App. Cas. by a company ; and the mine owner 823, 834. could not have withdrawn support as s See R. C. Cons. Act, s. 79, cited against the vendor to the company ; ante, p. 6 n. ; Wat. CI. Act. s. 23. it may be, that the vendor to the com- 316 NEIGHBOURS — SUPPORT- [CHAP. XV. Working after notice — with- drawal of notice. Improper notices. Compensation under Pub. Health Act, 1875. Smith v. G. W. R. Co., a case in the House of Lords, 1 contains a dictum to the contrary. 2 But the dictum was overruled in a subsequent case before the same tribunal. 3 A mine owner, who has given the statutory notice, does not lose his right to compensation by merely afterwards proceeding to work the minerals in question. Such a working can only entitle the company to damages or an injunction in independent proceedings ; or to a reduction in the amount of the compensa- tion. 4 On the other hand, a notice once given cannot be with- drawn ; unless perhaps with the consent of the company. 5 In general, as has been already seen, 6 where a company pur- chase land under the provisions of the Rail. CI. Cons. Act, or under Acts of a similar policy, they are not in the first instance, in purchasing the surface, obliged to compensate the landowner for mines which he has not begun to work. But this rule does not apply, where it appears, that the mines in question are about to be worked without delay. As soon as the injury com- plained of, although not actually sustained, has become capable of estimation, the time for receiving compensation has arrived. 7 A mine owner will not, however, it seems, be allowed to force a company into arbitration, where it appears that no injury can possibly arise from his workings. 8 And in all cases a notice of an intention on his part to work should be bond fide. 9 The compensation to which, under the Pub. Health Act, 1875, a mine owner is entitled, who is obliged to leave his minerals unworked, 10 is payable as soon as the local authority in question have constructed their works, and in respect as well of pro- spective as of actual injury. 11 1 3 App. Cas. 165. 2 See p. 182, per Lord Cairns. 3 Dixon r. Caledonian, &c, Com- panies, 5 App. Cas. 820 ; a decision upon the Rail. CI. Cons. (Scotland) Act, 1845. See Mid. R. Co. v. Haunch- wood, &c, Co., 20 Ch. D. 561. 4 See Swindell v. Birmingham Canal Co., 9 C.B.N. S. 241, 279. 5 See ib. 6 Ante, p. 338. 7 See Cromford Canal Co. v. Cutts, 5 R. C. 442. Cf. Whitehouse v. Wol- verhampton R. Co., L. R. 5 Exch. 6. 8 See Cromford Canal Co. v. Cutts, v. s. 9 See Mid. R. Co. r. Haunchwood, &c., Co., 20 Ch. D. 558. 10 See ante, p. 312. 11 lie Dudley, 8 Q. B. D. 86, 94, 96. PART D.] STATUTORY PROVISIONS. 3 J. 7 (5) Damage for Severance — s. 81 Rail. CI. Act — s. 25 Wat. CI. Act. A company purchasing land under the Rail. CI. Cons. Act, 1845, Damage for are bound, " from time to time," to compensate a mine owner for all expenses and losses he may sustain by severance. 1 And the Waterworks CI. Act contains provisions of a very similar kind. 3 Whitehouse v. Wolvcrliampton R. Co. z shows the prin- ciple upon which such compensation will be estimated. It was there held, that the mine owner was, notwithstanding the words " from time to time," entitled to have included in his compensa- tion items for losses or expenses not then actually sustained, but which would necessarily be sustained or incurred in working the mines, and which were capable of being immediately estimated with reasonable certainty. A contrary construction of the Act would lay on a mine owner the obligation of actually spending the money he sought to recover before he could establish his claim ; and perhaps of making claims cle die in diem. 4 " 0) S. 85 Lds. CI. Act—ss. 78, 81 Rail. CI. Act— ss. 22, 25 Wat. CI. Act. The bond required to be given under s. 85 of the Lands CI. Bond un-lcr Cons. Act, 1845, by a company desirous of entering upon lands before agreement come to, award made, or verdict given, does not include within its condition compensation for minerals under ss. 78 and 81 of the Rail. CI. Act, 1845, 5 or under ss. 22 and 25 of the Waterworks CI. Act ; 6 but only the purchase money for the lands taken, and compensation for the execution of the works. 7 1 See s. 81, cited ante, p. 7 n. by severance : Sandback Trustees v. 2 See s. 25. North Staf. R. Co., 3 Q. B. D. 1. See 2 L. R. 5 Exch. 6. Cf. Crornford further, as to s. 81 Rail. CI. Act, and Canal Co. v. Cutts, ante, p. 316. s. 25 Wat. CI. Act, infra (e). 4 The Court has no jurisdiction over 5 See these sects, cited ante, pp. a master's taxation, under s. 1 of 32 & 6 n., 7 n. 33 Vict. c. 18, of the costs of an 6 Ante, p. 9. enquiry to assess compensation in re- 7 Ex parte Neath and Brecon R. Co., spect of purchase money and damage 2 Ch. D. 201. 348 NEIGHBOURS — SUPPORT — [CHAP XV. (0 Mode of working — Right to inspect. Working must A mine owner left at liberty to work his mines must, under beproper and ^ ^.^ terms of ^ 7^ ^ of the j^ ^ Q()ns Act> work them in a manner proper and necessary for the beneficial working, and according to the usual mode of working in the district in question. And, if any damage is caused by his not doing so, he is liable to make it good. 1 But the mere facts, that the usual mode of working surface minerals is by open workings and that open workings would involve a trespass upon the pro- perty of the company in question, do not entitle the company to say that surface minerals shall not be worked by underground excavations. The company would otherwise be enabled to pre- vent surface minerals from being worked at all. 2 Right to A company purchasing land under the Rail. CI. Cons. Act, inspec . 1845, may enter and inspect the mines, and make use of the mining machinery, for the purpose of ascertaining, whether, in their working, sufficient support is left for the railway. And, in a proper case, they may compel the mine owner to take all neces- sary precautions for the protection of the railway. 3 And the Wat. CI. Act 4 contains provisions of a somewhat similar kind. 5 PART E.— SUPPORT FROM WATER. Express grant. The right of support from water may be acquired by express grant. 6 Ein t v. Ib Elliot v. A 7 ". E. R. Co., 7 there was,- at the time of the N. E. R. c. purchase of land by a company for the purpose of erecting a railway, underneath the land purchased, and also underneath some adjoining land of the vendor, an old mine which had been drowned for more than forty years. The drowning was due to 1 See ante, p. 6 n. ; G. W. R. Co. v. 3 See 8 & 9 Vict. c. 20, ss. 83, 84, 85, Bennett, L. R. 2 H. L. 38, 39, 42. ; cited ante, p. 7 n. Pountney v. Clnyton, 31 W. R. 6(55, * 10 & 11 Vict. c. 17. 666. 5 See s. 26. 2 See Mid. R. Co. v. Haunchwood, 6 There is no primd facie right : sec &c, Co., 20 Ch. D. 552, 560, 561, per ante, p. 291. Kay, J. '" 10 H. L. C. 333 : see ante, p. 324. PART E.] SUPPORT FROM WATER. 34.9 the accidental overflowing of a neighbouring river. The water stood eighty fathoms deep in a perpendicular shaft in the mine ; and from this shaft ran horizontally several passages, which were filled with water. On the surface of the purchased land the company constructed a portion of their works. Vertical support to the land so burdened was in part given by the hydro- static pressure of the water in the shaft, and was also in part given by the water in the horizontal passages. The mine owner gave the company notice of his intention to work the mine, and for that purpose to pump out the water in the shaft and passages ; and the company filed a bill to restrain him. The Court held, that the company had no right to prevent the mine owner from withdrawing the water. 1 The circumstance of the water being in the shaft and passages was purely accidental, and one which the company might have known there was every probability of the mine owner altering. In Popplewell v. Hodkinson/ a conveyance of land in Popplevel] ». Manchester contained a covenant by the grantee to build in order to secure a chief rent. The land was wet and spongy. The plaintiff (who claimed under the grantee) built cottages on the land ; but he did not, before doing so, drain the land, so as to make it more suitable to bear the weight of the cottages Subsequently the ownership of the adjoining land (the title to which was derived from the same grantor) became vested in persons who employed the defendant to build a church thereon. With a view to effectually draining such adjoining land, and thereby securing a good foundation for the church, the defendant excavated deeply. The plaintiff's land was in consequence drained : it subsided ; and the cottages were in- jured. The Court considered, that, the adjoining land beino- close to an important and populous city, the plaintiff's pre- decessor should have had strong grounds for supposiug that it would be built upon ; aud would, if necessary for that purpose, be effectually drained. It moreover considered, that the plain- tiff was guilty of neglect in not draining his own land in the 1 Varying the order of V. C. Wood at liberty to drain the water from the (1 J. & H. 145), as affirmed by Lord shaft, but not from the passages. Campbell (2 De G. F. & J. 423) ; ac- ■ L. R. 4 Ex. 248. cording to which the mine owner was 350 NEIGHBOURS — SUPPORT — [CHAP. XV. Result of the cases. first instance. It was, therefore, held, that the plaintiff was without a remedy. It was at the same time intimated, that where an owner of land has obtained a grant for a particular object, and there are no exceptional circumstances in the case, he may properly insist, as against his grantor, that the with- drawal of subterranean water will deprive him of a reasonable decree of support for the due execution of that object ; and may make his grantor liable accordingly. The result of the law may be expressed as follows : — 1. The owner of land may obtain a right to support from water by express grant. 2. And where he has obtained a grant of the land for a particular object known to his grantor, his grantor cannot, in general, remove the water in the land, if support from the water is necessary for the due execution of such object. 3. But, in the latter case, if there are exceptional circum- stances ; as if the presence of the water is due to accident, 1 or if the plaintiff could not have inferred that the adjacent land would have been left undrained, 2 or if the plaintiff has himself neglected ordinary precautions ; 3 he may be without a remedy. PART F.— REMEDIES. a. Surface Owner. (a) Existence of Remedies. Person liable. It need hardly be said, that where the right of support is infringed, no remedy can be had against a person who was powerless to prevent the infringement. If, for instance, a mine owner demises the mine, and the lessee wrongfully withdraws support from the surface, it is against the lessee, and not against the lessor, that a remedy is available. In like manner, if a mine owner grants a license to work, and the license is irre- vocable 4 , the licensee is alone responsible for any damage for the 1 See Elliot v. N. E. R. Co., 10 H. L. C. 333 ; ante, p. 348. 2 See Popplewell v. Hodkinson. L. R. 4 Ex. 248, 252. 3 lb, p. 250, per Martin, Bramwell, and Channell, BB. 4 See ante, pp. 251, 252. PART F.] REMEDIES. 351 wrongful withdrawal of support. 1 But if the license is revocable, and the licensor knows that damage may ensue from the con- templated acts of the licensee, the licensor may be made responsible. For he might have revoked the license, and so prevented the damage. 2 If, however, a mine owner demises the mine ; and subsequently sells the land, excepting the mine, and reserving working liberties, and covenanting to make compen- sation for all damage to the surface through the exercise of the reserved liberties ; and the lessee, in the exercise of his own rights, works, and withdraws the support ; the remedy is against the lessor. 3 Sometimes particular remedies are specified by anticipation, Previously either by the parties themselves or by the Legislature, for the remedies, damage which may be sustained by the withdrawal of support ; in such a way that those remedies only are available. And, when this is so, care should be taken, that the specified reme- dies are pursued. 4 But, in other cases, although particular remedies may be specified, the ordinary remedies may be also available, and the remedies may in fact be cumulative. 5 Subject to the necessity in proper cases of pursuing certain Ordinary r , •^^ ^• r remedies — specified remedies, an ordinary action lor damages will lie lor damages, infringing the right of support. And if a reversioner and a lessee have both been injured in respect of the same propert}', each may recover in proportion to his injury. 7 It has been 1 See Atkinson v. King, 2 L. R. (Ir.) ton, u. s. ; Bonomi v. Backhouse, E. 320. B. & E. 622 ; Backhouse v. Bonomi, - lb. : see p. 337. See also Siddons 9 H. L. C. 503 ; Proud v. Bates, 34 L. v. Short, 2 C. P. D. 572. Cf. White v. J. Ch. 406, 412. As to land in its Jameson, 18 Eq. 303. non-natural state, see Hilton v. Gran- 3 See Berkeley v. Shafto, 15 C. B. ville, 5 Q. B. 701 ; Roberts v. Haines, N. S. 79, 97, 99. Cf. Harris v. James, u. s. ; Haines v. Roberts u. s. ; 45 L. J. Q. B. 545. Rogers v. Taylor, 2 H. & N. 828 ; 4 Buccleuch v. Wakefield, L. R. 4 H. Brown v. Robins, 4 ib. 186; Allaway L. 377. v. Wagstaff, ib. 681 ; Hunt v. Peake, 5 Harris v. Ryding, 5 M. & W. 60 ; Job. 705 ; Richards v. Jenkins, it. s. ; Smart v. Morton, 5 E & B. 30 ; Roberts Aspden- v. Seddon, 1 Ex. D. 496; v. Haines, 6 E. & B. 643 ; Haines v, Chapman v. Day. 47 L. T. 705 ; Bell Roberts, 7 ib. 625 ; Dugdale v. Robert- r. Love, 10 Q. B. D. 547 ; Xormanton son, 3 K. & J. 695 ; Richards v. Jen- Gas Co. v. Pope, 48 L. T. (Hi6. affirmed kins, 17 W. R. 30. 52 L. J. Q. B. 629. 6 As to land in its natural state, see " Stroyan v. Knowles, Hamer v. Harris r. Ryding, v. s. ; Humphries v. Knowles, 6 H. & X. 454. Brogden, 12 Q. B. 739 ; Smart v. Mor- 852 NEIGHBOURS — SUPPORT — [cHAP. XV. already seen, that only one action will lie for all the injurious consequences of the removal of support from laud in its natural state. 1 But, as has been already seen, the owner can recover in such action for all damage, past, present, and prospective. 2 It has also been seen, that where land ha3 been artificially burdened ; and there is no right to support for the artificial weight ; and support is withdrawn ; but it is shown, that, even if the land had been in its natural state, it w-ould have been injured ; the owner's remedy will not be confined to such damages as he would have been entitled to recover if the land had re- mained in its natural state. He will, as has been already seen, be also entitled to recover for the injury to the artificial weight. 3 Injunction. An injunction may also, in general, be obtained to restrain the future infraction of the right. 4 And, although in some cases it will not be obtained unconditionally, it may be ob- tained upon the terms of paying compensation to the mineral owner. 5 And it will not in general be refused on the mere ground, that the injury is of such a nature as to be capable of being satisfied by damages. 6 However, where the party seeking it has, with knowledge of the probable consequences, abstained from interference until the workings in question have proceeded for a considerable distance, and considerable expense has been incurred, he will not, having regard to the serious injury which may be caused by stopping mining operations, 7 be allowed an injunction ; but will be left to his remedy in damages. 8 And an injunction will not usually be directed aJb cmte; unless the defendant claims the right to work in an improper manner ; 9 i Ante,?.289. G.W.B.Co„3App.Ca8. 165; Biddona 2 Ih -iiort, 2 C. P. D. 572. a Ante,p. 301. s M - ]i - ' ; - : '"- 4 ■* 19 : * As to land in its natural state, see sec ante. p. 328. Proud r. Bates. M L. J. Ch. 406. Afi * Si Short, ». *.. 577. to an underlying stratum, see Mtmdy ' Hilton r. Granville, 1 Cr. k Ph. r. Rutland. 23 Ch. D. 81. As to land 297. Bee also ante, p. 62 d. ' and other in its non-natural state, see Dug- cases there cited. dale p. Robertson. 3 K. k J. 69S j 9 Bee Hilton r. Granville, 1 Cr. k Hunt r. Peake. Joh. 71 5 ; Elliot v. Ph. 283, 296, 297, 298. N. E. B. Co.. 10 H. L. C. 333 ; N. E. 9 Biddona x. Short, 2 C. P. D. 572. R ( land. 2 J. & H. 565 ; Of. Buchanan r. Andrew, L. Pv. 2 Sc. 2 I) J. 550; G.W. B. Co. r. & D. 288. Smith. 2 Ch. D. 235 ; nom. Smith r. PART F.] REMEDIES. and it appears reasonably probable, that damage will ensue in consequence. 1 When the infraction of the right is restrained, it will, consistently with the principle that degrees cannot be measured out to which the right may extend, 2 be restrained in the most general words, and without specifying any limits within which the mineral workings may be carried on. 3 In a proper case a mandatory injunction may be obtained. 4 A litigant may. in a proper case, obtain, upon interlocutory L- application, liberty to inspect his neighbour's mine and work- ings, and the working plans connected therewith, fur the purp of ascertaining, whether his right of support has been infringed."' -j Loss of Remedies. If six years have elapsed since the right of support, whether Stat, of _ , Limitations. for land in its natural state, or for land m its non-natural state, : - been infringed, the remedy will be barred. But it must be remembered that, although something may have been done, 1 Birmingham p. Alien. G Ch. D. 287, i x ~. The Court will sometimes, ■where there is a conflict of evidence, or otherwise in cases of doubt, lake an independent report from a referee, and act upon it : see Mundv r. Rutland, 23 Ch. D. 97. - - Ante. p. 290. 3 As to lanl in its natural - , Set. 2 >. A- to an underh iig stratum, see Mundy v. Rutland, u. .*.. 94. 98. As to land in its non-natural sta'.e. see CaL L\ Pprot, 2 Macq. 4.j4 ; Hum r. Peake. 713 : El i - . N rth East. R. C, 10 H. L. C. 333 : X. E. R. Co. r. < land. 2 J. & H. 5S0; 4 De 0. F. Jc J. of the order in Bell r. JoelL Set. 203. 3 See Wall r. Dunn. Sel - - Baynton r. Leonard, ib. 203. For the forms of a declaration as to a plaintiff's right of support, and an injnn staying the working of minerals neces- - . v to such support, and that the defendant should permit the plaintiff to have access to the s for the purpose of making supports, see Dug- dale r. - . 3 K. & J. 701. the form of a declaration as to a plaintiff'- right to compensation in respect of damage by mining under vises or by subsidence "f the soil, with an injunction and an enquiry as to damages, see Hunt r. Peak* . 713. For the form of an injur. I ining in general words the in- ■n of the right of snppoi I Bell r. Joell. Set. 203 ; Baynt :d. ib. : Wall r. Dunn. ib. 202 (a :j a church) ; Hunt p. Peake, Joh. 713: E E. R. : H. L. C. 333 : X. E. R, I ,2 J. .t H. 580: 4 De G. F. a; J. 560 : Mun : support for the : of an underlying stratum). And for the form of an order giving liberty Wall r. Dunn. 1 Baynt: n p. L-.iiard. u. *. nomi v. Backhouse. E. B. A: E. 622 : Backhouse r. Bonomi, 'J H. L. C. 503. A A 354 NEIGHBOURS — SUPPORT — REMEDIES. [CHAP. XV. which afterwards produces damage, the right is not infringed until damage actually takes place. 1 Acquiescence. The remedy will not easily be barred by acquiescence. For instance, the lord of a manor, who by the permission of his copy- holder works under the copyhold, and in the course of his work- ings injures the copyhold buildings, will not escape liability by alleging that the copyholder must have known the probable results of the working. 3 Diath of Whether the maxim, actio personalis moritur cum persona, applies upon the death of the wrongdoer, is a question, which has been discussed, but not decided. 3 b. Mine tuner. Mine owner. A mine owner may also, in some cases, although not allowed to work, so as to withdraw support from the surface, have a remedy against the surface owner for being obliged to leave his minerals unworked. Thus, a mine owner, disabled from work- ing, may be entitled to receive compensation under s. G8 of the Lands CI. Cons. Act, 1845. 4 So, a mine owner, disabled from working, may be entitled to receive compensation under s. 6 of the Gas CI. Act, 1847. 5 And a mine owner, disabled from working or from working except at a disadvantage, may be entitled to compensation, and to damages for severance and other damage, under ss. 78 and 81 6 of the Rail. CI. Act, 1845, or ss. 22 and 25 7 of the Wat. CI. Act. The measure of compensation, and the measure of damages for severance, have been already adverted to. 8 If a particular remedjr is specified by anticipation, it may be, that that remedy only is available. 9 1 lb. : ante, p. 28S. "> Ante, p. 9. 2 See Bankart v. Houghton. 27 Beav. 8 Ante, pp. 343, 347. See also, in 433. connexion with s. 85 of Lds. CI. Act, 3 See Chapman r. Day. 31 W. E. ante, p. 347. 767. 9 See Fenton v. Trent, &c, Co.. '.» M. 4 Sec G. W. R. Co. v. Smith, 2 Ch. & W. 203 ; where it was hell, that D. 235 ; Smith v. G. W. R. Co., 3 App. the remedy was a feigned issue. See Cas. 1G5 ; ante, pp. 343. 344. also Normanton Gas Co. v. Pops, u. s. 5 10 & 11 Vict. c. 15 : seeXormanton {ante, p. 312), a case under the Gas Gas Co. v. Pope, 25 L. J. Q. B. 62!) CI. Act, 1847 (10 & 11 Vict. c. 15, ss. (ante, p. 312). 6, 40) ; where it was held, that the Ante, pp. 6, 7. n. remedy was arbitration. CHAPTER XVI. NEIGHBOURS— ROADWAYS AND AIRWAYS. Sect. 1.— NATURE OF EIGHT OF WAY— GENERALLY. A right of way in alieno solo 1 is an incorporeal right by way Right of way of easement. 2 And it is none the less an easement, because it ment> ' may be a necessary incident to the enjoyment of his property by the dominant owner. 3 The dominant owner cannot prevent the servient owner from Servient using the way. If he could, his right of way would not be an ^ or .'.'[',',,. easement, but a right of property in the land occupied by the the ,v:i - v - way. 4 Nor can he prevent the servient owner from making- alterations in the way, provided that it is not thereby rendered an obstruction to the dominant owner. 5 The Crown has apparently a right of way for the carriage Right must through the lands of a subject of the produce of mines of gold ^mate in and silver; and also of saltpetre; 7 and probably of treasure s rant . 01 * P re " L L ^ scription. 1 As to rights of way in propria solo, see ante, pp. 67, 68, 69, 87. 88, 89. 2 Hewlins v. Shippam, 5 B. & C. 229 ; Thicknesse v. Lancaster Canal Co., 4 M. & W. 492, 495 ; Ramsay v. Blair, 1 App. Cas. 706, \ cr Lord Sel- borne. 3 See Ramsay v. Blair, v. s., per Lord Selborne. It is respectfully sub- mitted, that the propositions laid down by Lord Chelmsford at p. 703 are not consistent with principle. Cf. Bourne r. Taylor, 10 East, 205. 4 See R. v. Jolliffe, 2 T. R. 95. In R. v. Bell (7 T. R. 598) it was decided, that the grantee of a wayleavc for carry- ing coal was rateable to the poor as occupier ; but oidy because he had en- closed the way, and excluded all persons from using it. 5 Bradburn v. Morris, Morris v. Brad- burn, 3 Ch. D. 821, 823. A right of way cannot, properly speaking, be the subject of an exception, or a reserva- tion. For it is neither part of the thing granted ; nor does it, like a rent, issue out of the thing granted. Where a grantor purports to except or reserve a right of way, it really takes effect as an easement newly created by way of express regrant by the grantee. See Wickham r. Hawker, 7 M. & W. 68 Durham, &c.,Co. v. Walker, 2 Q. B. 940 Proud v. Bates, 34 L. J. Ch. 406 Hamilton v. Graham. L. 1!. 2 Sc. >.V. D. 168. See ante, pp. 281, 282. < See ante, p. 282, rr. 2 . 356 NEIGHBOURS — ROADWAYS — [chap. XVI. trove. 1 Subject to this, a right of way in alieno solo, being an incorporeal right by way of easement, 2 must have its origin in grant, express or implied ; or in prescription. A right of way founded upon grant must, to be legally effectual, be created by deed. 3 A right of way by prescription may be acquired at common law either by an enjoyment from time immemorial ; or, upon the fiction of a modern lost grant, by an enjoyment for twenty years. Or, it may be acquired under the 2nd section 4 of the Prescription Act. 5 However, unless the enjoyment is as of right, a right of way cannot be acquired under the Prescription Act. 6 Unlimited grant. Sect. 2.— ROADWAYS— EXPRESS GRANT. a. Kind oj Way. (a) Unlimited Grant. Where there is a general and unqualified grant of the way intended to be made or used, the grantee may make or use any kind of way he pleases. 7 1 See ante, p. 282, n. -. 2 See preceding page. 3 See Hewlins v. Shippam, 5 B. & C. 229. Rights of way are sometimes claimed as being legally appurtenant to the subject matter of a grant ; and at other times as being contained in the general words of an instrument. For the law in such cases, see L. C. Conv. 170, 175. See also Conv. Act, 1881, s. 6. Mining rights of way are, as may be supposed, usually of too much importance to be allowed to de- pend on either of such grounds. For claims to rights of way for mining purposes based on expectation followed by expenditure, see Clavering's Case, 5 Ves. 690 ; Powell v. Thomas, 6 Ha. 300 ; Meynell v. Surtees, 3 Sm. & G. 101. Cf. Bankart v. Tennant, 10 Eq. 141 ; Willmott v. Barber, 15 Ch. D. 101. See also Bell v. Midland R. Co., 3 De G. & J. 686 ; Mold v. Wheatcroft, 27 Beav. 510,516. 4 Cited ante, p. 314, n. s . 5 See Monmouth Canal Co. v. Har- ford, 1 Cr. M. & R. 614; Cowling v. Higginson, 4 M. & W. 245 ; Rogers r. Taylor, 1 H. & N. 706 ; Bradburn v. Morris, Morris v. Bradburn, 3 Ch. D. 812. In Rogers v. Taylor two pleas under the Act of prescriptive rights for 20 years and 40 years to cut through the surface of a waste in a manor in order to reach and work quarries, and remove the stones, were held good. 6 Monmouth Canal Co. v. Harford, v. s. ; Cowling v. Higginson, u. s. 7 See Beaufort v. Bates, 3 De G. F. & J. 393 ; Cannon v. Villars, 8 Ch. D. 420. SECT. 2.] EXPRESS GRANT. o57 03) Grant clearly Limited. Where the way intended to be made or used is clearly de- Grantee of .... limited right fined by the instrument of grant, and there is nothing in the in- cannot have strument to indicate a contrary intention, the grantee of the right J ha f gj^fted. ° cannot make or use any other kind of way than that which has been granted. He cannot, for instance, where a right of passage simpliciter is granted, make or use a tramway or railroad ; l or, where a right of waggon-way is granted, make or use a tram- way or railroad ; 2 or, where a right of railroad simpliciter is granted, make or use a railroad to be traversed by locomotive engines. 3 And he cannot justify the making or using a dif- ferent kind of way from that which has been granted on the ground, that no more land has been thereby taken, or that the landowner has not been thereby in any respect injured. He has no right to take the land at all, except for the particular kind of way indicated. 4 (y) Grant not clearly Limited. Where the way intended to be made or used is not clearly Difficulties , ..i i where grant defined by the instrument of grant, the grantee is not entitled not clearly to make or use any kind of way he pleases ; without regard jjj^fe to the circumstances of the case, or the necessities of his posi- tion. 5 The grantee may, however, in such a case, claim the right to make or use some particular kind of way ; and this claim may be contested by the servient owner. Under such circumstances the nature of the locus in quo, Physical sur roundings. or of the terminus a quo, or of the terminus ad quern, may, taken in connexion with the language of the grant, serve to determine the propriety of the claim. If, for instance, the locus 1 Beaufort r. Bates, 3 De G. F. & J. 4, a. 392 ; Neath Canal Co. v. Ynisarwed 4 Farrow v. Vansittart, u. *., 609, Colliery Co., 10 Ch. 450. 610. 2 See Farrow v. Vansittart, 1 E. C, 5 See Farrow v. Vansittart, u. *., 609 ; Bidder v. North Staff. B. Co., 4 609. There the grant was of " free Q. B. D. 429. ingress, egress, and regress, wayleav 3 lb. Cf. the law, where the right and passage, to and from" mines, is claimed by prescription, infra, Sect. 358 NEIGHBOURS— ROADWAYS- [CHAP. XVI. Language of grant. Henhouse v. Christian. Dand v. Kingscote. in quo is a metalled road, with pavement on both sides, the pre- sumption will, if not inconsistent with the language of the grant, be, that it was intended to be used in accordance with the manner of its construction ; namely, not merely as a foot-road, but as a road for horsemen and carts. 1 But, if it is only paved with flagstones, and is not sufficiently wide to enable a waggon or cart to pass, the presumption may be, that it was not intended to be used for waggons or carts. 2 If, again, one end of the way in question runs into and forms part of a public highway, over which parties do not presumably contemplate making railways or tramways, it will not be presumed that it was intended to be used as a railway or tramway. 3 The language of the grant has frequently been the subject of discussion. Thus, in Senhouse v. Christian,* a grant was made of a " free and convenient way, as well an horseway as a footway, as also for carts, waggons, wains, and other carriages whatsoever, in, through, over, and along" a slip of land, for the purpose of carrying coals from a colliery to the common highway. The grantee could not commodiously carry the coals unless by laying down a framed waggon-way ; and this he was, accord- ingly, held entitled to do. So in Dand v. Kingscote. 5 There was there a grant of lands, "excepting and reserved out of the grant all mines of coals within the fields and territories of Amble aforesaid, together with sufficient wayleave and stayleave to and from the said mines, with liberty of sinking and digging pit and pits." The Court held the words " sufficient wayleave " to mean such a description of wayleave as would be reasonably sufficient to enable the coal owner to get from time to time all seams of coal to a reasonable profit. 1 Sue Cannon v, Villars, 8 C'h. D. i20,.per Jessel, M. R. - 7J.,p.421. 3 Bidder v. North Staff. R. Co., 4 Q. B. D. 430. Cf. Beaufort v. Bates, 3 De G. F. & J. 393, 394. If the road is the only means of access to the grantor's mansion house, the grantee may not be entitled to lay down iron plates : see the .Scotch case of Galbraith v. Egling- ton Co., 7 Sess. Cas. (3rd ser.) 167. * 1 T. R. 560. 3 6 M. & W. 174. 6 See also Cannon r. Villars, v. .«., 413 : and cf. Bidder v. North Staff. R. Co., u. s., 429, 430. In Pit v. Claverinth, 1 Barn. 318, a grant of a " convenient wayleave for the carriage of coal through a waste," was held not to entitle the grantee to a right of waggon-way : but this case must be taken to be overruled by Dand v. Kingscote. SECT. 2.] EXPRESS GRANT. '359 In Bishop v. North 1 an Act of 32 Geo. 3, for making a Bis'iop v. canal, empowered the owners of any mines of coal within cer- tain parishes to make any railways or roads to convey their coals to the canal over the lands of any person ; making satisfac- tion for the damage thereby occasioned. It was held, that the Act empowered such owners to make railways to be traversed by locomotive engines. In Bishop v. North there was a com- pensation clause for the damage which might be occasioned by the making of the way ; and it seems clear, that the decision would not have been the same, if this clause had been absent. It would have been a serious thing to hold, that, under such a grant as was there used, the servient owner was without a remedy of any kind ; although his land was cut and levelled ; and he was precluded from thereafter using it, except in one particular way, and with carriages of one particular construction. 2 There was not, moreover, in Bishop v. North, any suggestion, that the running of locomotives would create a public or private nuisance, or be a source of danger to the neighbourhood. In all such cases the probability or improbability of a nuisance being created, or of accidents occurring, is a material element in arriving at a decision. 3 However, in Bishop v. North, the in- strument in question was an Act of 32 Geo. 3. The mere cir- cumstance, therefore, that locomotive engines were not in use at the date of the instrument, and could not, accordingly, be presumed to have been within the contemplation of the legis- lature, was considered immaterial. 4 Bidder v. North Staffordshire Rail Co." was differently JjJJf^ decided. There, however, the grant was not, as in Senhouse v_ r. C. Christian, Band v. Kingscote, and Bishop v. North, a grant » 11 M. Ac W. 418. Q. B. D. 412, 430. 2 However, in Dand r. Kingscote, 6 3 See Bishop v. North, 11 M. & W. M. & W. 174, there was no compensa- 426, 427 ; Bidder v. North Staff. E. tion clause for injuries done by making Co., u. s., 412, 430. ways; and the Court nevertheless inti- 4 See also Senhouse v. Christian, 1 mated, that a question (which was T. R. 567 ; Dand r. Kingscote, v. s. ; raised, but not decided), as to the McDonnell r. Kenneth, 1 Ir. C. L. Eep. coalowner's right to make a railway, 113 : and cf. Baxendale v. McMurray, with cuttings and embankments, and 2 Ch. 794 ; Newcomen v. Coulson. 5 fenced in so as to exclude the surface Ch. D. 133. owner, was at all events arguable. 5 4 Q. B. D. 412. Cf. Bidder r. North Staff. E. Co., 4 360 NEIGHBOURS ROADWAYS [chap. XVI. One liberty restricted by another. of a way in any place convenient for the working ; for the purposes of the working ; and for the exclusive use of the grantee. It was, on the contrary, a giant of a way in a particularly defined place. It was not a grant for the purposes of the working. And it appeared to be for the use of others as well as of the grantee ; the grantee being under an obliga- tion to maintain and keep in repair the subject matter of the grant. 1 And where, to a liberty to make and use roads and ways, there is added a liberty to do all such other acts as may be deemed necessary or expedient for "con- veying the iron ore to the furnaces and other works on the lands," it is probable, that, having regard to the latter liberty, railroads and tramways are not included in the former. 3 Result of the cases. (5) Result of the Cases. The result of the preceding cases may be expressed in the following propositions : — (1.) Where there is a general and unqualified grant of the way intended to be made or used, the grantee may make or use any kind of way he pleases. (2.) Where the kind of way intended to be made or used is clearly defined by the instrument of grant, the grantee cannot, primd facie, make or use any other kind of way; although such other kind of way may not be more onerous to the servient tenement, i (3.) Where the kind of way intended to be made or used is not clearly defined, the nature of the locus in quo, or of the terminus a quo, or of the' terminus ad quern, may, taken in connexion with the language of the grant, serve to deter- mine the kind of way. (•i.) Where the words " convenient wayleavc," " sufficient wayleave," " necessary wayleave," and the like, are used as incident to a grant ; or where a grantee is empowered to make ways " to convey his coals ;" the grantee may in general make 1 See pp. 429, 430. Affirmed by the 2 See Beaufort v. Bates, 3 De G. F.& House of Lords : nom. Elliot v. North J. 381,393, 394. Staff. R. Co., W. N. 1881. p. 52. SECT. 2.] EXPRESS GRANT. %ft\ waggon-roads or tramroads, or even (if only there be a clause securing compensation to the servient owner for any damage he may sustain, and it do not appear, that accidents are likely to occur,) railroads to be traversed by locomotive engines ; according to the particular exigencies of each particular case. (5.) However, to enable him to do so, the grant must have been for the purposes of the working, and for the exclusive use of the grantee. (6.) If the grantee is, in other respects, entitled to make a particular kind of way, he cannot be prevented from so doing, merely because that kind of way was not in use at the date of the instrument under which he claims; and could not, therefore, be presumed to have been within the contemplation of the parties, or (as the case may be) of the legislature. b. Application. (a) Unlimited Grant. Where the purposes, for which a way may be applied, are Unlimited granted generally, and without qualification, the grantee may gI use the way for any purpose he thinks proper. 1 (/3) Grant clearly Limited. Where the purposes, for which a way may be applied, are Grantee of specified in the instrument of grant, and there is nothing in cannot use the instrument to indicate a contrary intention, the grantee way for other J ' ° purpose of the right cannot use the way for any other purpose than the th:in tl,:ifc particular purpose for which the grant is made. 2 Where, for in- stance, the way is granted for all purposes except that of carrying minerals; 3 or for agricultural purposes; 1 or for other definite 1 Hughes v. Chester. &c. R. Co., 3 De Durham, kc, Co. v. Walker, 2 Q. B. G. F. & J. 352 ; reversing Chester, &c, 940 ; Midgley v. Richardson, 14 M. & R. Co. v. Hughes, 1 Dr. k Sm. 524. W. 595 ; Bowes v. Ravensworth, 15 2 See Hamilton v. Graham, L. R. C. B. 512 ; Hedley r. Fenwick, 3 H. & 2 Sc. & D. 169: see also Jackson v. C. 349; Proud v. Bates, 34 L. J. Ch. Stacey, Holt's N. P. C. 455 ; Stafford 40ii. v. Coyney, 7 B. k C. 257 ; Cowling v. 3 Stafford v. Coyney, u. -v. Higginson, 4 M. & W. 245. See also 4 Jackson v. Stacey. w. s. ; Bradburn Dand v. Kingscote, 6 M. k W. 174 ; v. Morris, Morris v. Bradburn, 3 Ch. Farrow v. Vansittart, 1 R. C. G09 ; D. 812. 362 NEIGHBOURS — ROADWAYS- [CHAP. XVI. purposes, not including mining or quarrying purposes ; l it cannot be used for mining or quarrying purposes. So, where there is a grant of a right of way for the carriage of minerals, the way cannot be used for general purposes ; 2 or for the con- veyance of passengers. 3 So, where a right of way is granted for the conveyance of minerals from a particular mine, the way cannot be used for the conveyance of minerals from any other mine. 4 So a grant of a right of way for carrying minerals to or from a particular place, as a terminus, will not justify going over that place to or from another place beyond it ; 5 unless such particular place be a highway. 6 And a mine owner cannot justify the user of a way for any other purpose than the par- ticular purpose for which the grant has been made, on the ground, that no substantially greater burthen has been thereby put upon the servient tenement." Difficulties where grant not clearly limited — generally. Dancl v. Kingscote. (y) Grant not clearly Limited. Where the purposes, for which a way may be applied, are not clearly defined by the instrument of grant, the grantee is not entitled to apply it for any purpose he pleases ; without regard to the circumstances of the case, or the necessities of his position. 8 The grantee may, however, in such a case, claim the right to apply it for some particular purpose ; and this claim may be contested by the servient owner. In Land v. Kingscote? the owner of two adjoining pieces of land conveyed them by separate deeds to different persons. There was in one of the deeds an exception and reservation in these words : — " Excepting and reserved out of the grant all mines of coals within the fields and territories of Amble 1 Cowling v. Higginson, 4 M. & W. 245. 2 Durham, &c., Co. v. Walker, 2 Q. B. 240 ; Meynell v. Surtees, 3 Sm. & G. 117,118. 3 Farrow v. Vansittart, 1 R. C. 609 ', Durham, &c, Co. v. Walker, u. s. 4 Dancl v. Kingscote, 6 M. & W. 174 ; Durham, &c, Co. v. Walker, w, s. See also Newmarch v. Brandling, 3 Swanst. 99, 107, 108 ; and cf. Farrow v. Van- sittart, v. s. 5 See Howell v. King, 1 Mod. 190 ; Colchester v. Roberts, 4 M. & W. 769. See also James v. Cochrane, 8 Exch. 556 ; post, p. 365. 6 Colchester v. Roberts, u. s. " Farrow v. Vansittart, v. s. 8 lb. 9 6 M. & W. 174. SECT. 2.] EXPRESS GRANT. 363 aforesaid, together with sufficient wayleave and stayleave to and from the said mines, with liberty of sinking and digging pit and pits." The other deed contained precisely similar words, except that " Hawxley " was substituted for " Amble." It was held, that the coal owner was not entitled to carry over the land comprised in the first deed the coal got under the land comprised in the second deed ; and that, although the coal underneath both pieces of land formed part of the same mineral field. In Durham, &c, Rail. Co. v. Walker, 1 the Dean and Chapter Durham, &c, of Durham demised certain lands to the defendant. They excepted and reserved the mines and quarries ; with full power to dig, win, work, get, and carry away, the same ; and with free ingress, egress, and regress, wayleave, and passage, to and from the same, " or to or from any other mines, or quarries, lands, and grounds." Afterwards the Dean and Chapter granted liberty to the company to enter the demised lands ; and to make and maintain a double way over them; and to use and grant the use of such way for the conveyance of passengers, coal, and goods. It was contended, that the Dean and Chapter had power under the reservation, to grant wayleaves either (1) over all or any part of the lands demised, without any restric- tion as to the uses to w r hich the wayleaves might be applied ; or (2) for the purpose of candying coals and minerals from any mines whatsoever ; or, at all events (3), for the purpose of cann- ing their own minerals, whether raised from under the lands demised, or any other lands. The Court, however, considered, that both the wayleave to or from the excepted mines, and the wayleave to or from other mines, lands, and grounds, were only mentioned in connexion with the excepted mines, and were not mentioned as a distinct matter of exception or reservation. It was, accordingly, held, that the right reserved was only that of making and using ways, and granting wayleaves for the purpose of getting the excepted minerals. InMidgley v. Richardson, 2 an Inclosure Act for inclosing moors Midgley v. and commons in a manor in the county of Durham provided, 1C arcson " that the Bishop of Durham and his successors might work 1 2 Q. B. 940. - 14 M. & W. 595, G07, 608. 364 NEIGHBOURS — ROADWAYS [CHAP. XVI. and enjoy all mines and quarries lying under the moors and commons ; together with all convenient and necessary ways and wayleaves, and liberty of winning and working the mines belonging to the see -wheresoever the same should be, and of leading and carrying away all the coals gotten thereout, " or out of any other lands or grounds whatsoever." There was no power under the Act of going to the mines of strangers for the purpose of working them ; nor was there any compensation provided for injury from the carriage of minerals from such mines. Upon these two circumstances it was held, that the Bishop was not entitled to carry over the inclosed lands coals got out of other mines, which he worked within the manor, but which did not belong to the see. The words, " or out of any other lands or grounds whatsoever," were interpreted as meaning lands or grounds other than mines ; e. g., quarries, chalk pits, marl pits, &c, which did not strictly come under the description of mines. 1 Bidder v. A decision more favourable to the mine owner was come to in r. c. the somewhat similar case of Bidder v. North Stafford. Rail. Co? There the lessees of mines were authorized to take and use " full and sufficient rail and other ways, paths, and passages to and for the said lessees and their agents, servants, and workmen or others," to carry away " all or any of the coal, cannel, slack, iron, and ironstone, the produce of the mines thereby demised, or any other mines." It was contended, that, unless some limitation were put upon the words " or any other mines," the produce of mines which neither adjoined, nor were worked by the lessees, might be carried over the ways in question ; and that those words should, accordingly, be read, as if after them were added the words " and brought to the surface on the demised 1 Followed in Hedley v. Fenwick, 2 De G. F. k J. 415; Jegon v. Vivian, 3 H. & C. 34'J. See also Farrow v. 6 Ch. 742 ; Eardley v. Granville, 3 Ch. Vansittart, 1 R. C. 602 (where an D. 826. As to the meaning of "mine," exactly similar lease to that in Dur- as distinguished from " quarry," see ham, &c, Co. v. Walker came before ante, pp. 3 ct x:q. See, further, as to the Court to be construed) ; Wallis v. Midgley v. Richardson, post, p. 365. Harrison, reported together with Dur- " 4 Q. B. D. 412, 430,431. Affirmed ham, &c, Co. v. Walker, in 11 L. J. by the House of Lords : nom. Elliot Exch. 440. Cf. Brunton v. Hall. 1 G. r. North Staf. R. C, W. N. 1881, p. & D. 207. Cf. also Bowser v. Maclean. 52. SECT. 2.] EXPRESS GRANT. 3Q5 land." Tt was considered, that the authority Avas limited to mines worked by the lessees ; but that, even if this were not so, there was no ground for putting any limitation whatsoever on the generality of the language of the lease. A decision favourable to the mine owner was also come to in James ». James v. Cochrane?- where the language of a grant, referring in Cochrane - other respects to a particular place as a terminus, was held to entitle the grantee to use it as a thoroughfare. There the lessees of a mine covenanted to leave unworked a barrier of coal between the demised mine and the adjoining mines ; and not to open any communications in such barrier, except where the lease gave them liberty to do so. The liberty was to make communications through the barrier for the purpose of convey- ing underground coals gotten in any adjoining colliery from such colliery into the demised mine ; and to convey such coals ac- cordingly ; and from thence to "convey and carry away" all such coals ; " and also to draw to bank at any of the pits sunk or to be sunk " in the demised lands the coals from such adjoining- colliery. No pits were ever sunk by the lessees in the demised lands. It was held, that the lessees had liberty to carry the coal of adjoining mines through a breach in the barrier into the demised mine ; and thence, through another breach in the barrier, into adjoining mines on the other side ; and to raise it to the surface through shafts in the last-named mines. 2 And, if, independently of the language of the grant, it is rea- Midgley v. sonable,from the circumstances of the case, to make a presumption 1C r son ' in favour of the owner of the mine or quarry, a construction may be adopted, which might not otherwise be adopted. Thus, in Midgley v. Richardson, 3 an Inclosure Act for inclosing moors and commons in a manor in the county of Durham contained a saving of the rights of the Bishop of Durham as lord of the manor. The other material provisions of the Act have been already stated. 1 It was probable, that, at the passing of the Act, the Bishop was in the habit of carrying over the in- closed lands coals from mines wherever situate ; and he had 1 8 Exch. 556. 3 U M. & W. 595. - See, further, as to this case, ante, 4 Ante, pp. 363, 364. pp. 231,332. 366 NEIGHBOURS — ROADWAYS [CHAP. XVI. only received a very small compensation for the allotment. It was held, that he was entitled to carry over the inclosed lands, not merely the coals got within those lands, but also those got out of any other mines belonging to the see. The Court ob- served that, having regard to his probable position at the passing of the Act, and to the amount of compensation which he had received, it was reasonable to presume as far as possible in the Bishop's favour. 1 Bowes v. So in Bowes v. Ravenswortk? There an Inclosure Act avensworti. enacte( j ^at nothing therein contained should be construed to prejudice the rights of the lord of a manor as such lord ; but that the lord should enjoy all mines, minerals, and quarries belonging to the manor, in as full and ample a manner as if the Act had not been made ; with liberty to make ways along the waste lands intended to be inclosed ; and to do every other act then or thereafter in use for working, leading, and carrying away the said mines, minerals, and quarries ; and also for " lead- ino-, carrying, and conveying the coals and produce of any other mines and minerals from or under any other lands and grounds whatsoever." The lord constructed a railway, and used it for the purpose of carrying coke ; which, however, was not made from coal worked out of the wastes in question. The Court considered, that the intention was as clear as possible, that the rights previously enjoyed by the lord of the manor were not to be interfered with. It was, accordingly, held, that " produce of any other mines and minerals " did not mean produce of mines and minerals other than coals, but produce of mines and mine- rals other than the mines, minerals, and quarries before men- tioned ; and that the mine owner was, therefore, justified in his user. Proud r.Bates. So in Proud v. Bates? In that case (the facts of which have been already sufficiently stated 4 ) the lessor claimed a right to carry along the way in question, as well minerals worked within the excepted mines, as also minerals within the manor, although not under the demised property. It was held, 5 that the lessor was entitled to an absolute wayleave, and not merely to a right 1 See. fm-ther. as to this case. ante, 3 34 L. J. Hi. 406. pp. 363, 364. 4 Ante, p. 69. - 15 C. B. .j 12. 5 Per Wood, V.-C. SECT. 2.] EXTRESS GRANT. 307 of way for the purpose of working the excepted minerals. The Court observed, that the circumstance of the lessor having been owner of the entire manor favoured the presumption, that it was not intended, that the wayleave should be used merely for working the excepted minerals. The Court also observed that, if the wayleave were of the restricted kind contended for, the mine owner would not have obtained any larger powers than he would have obtained by implied grant, if there had been a mere exception of the mines, without more ; l and that, this being so, it was reasonable to infer, that, what was expressed widely, was not intended to be confined to a restricted right. This reason- ing was evidently approved of by the same learned judge in a more recent case. 2 But it does not seem to have been con- sidered in the preceding cases. 3 (8) Result of the Cams. The result of the preceding cases maybe expressed in the Result of the following propositions : — (1) Where the purposes, for which the way may be applied, are granted without qualification, the grantee may use the way for any purpose. (2) Where the purpose is specified, the grantee cannot, primd facie, use the way for any other purpose ; although such other purpose may not be more onerous to the servient tenement. (3) Where the words "convenient wayleave," " sufficient way- leave," " free wayleave and passage to and from," and the like, are used as incident to a grant or exception, the way can only, primd facie, be used for getting the granted or excepted minerals. (4) The prima facie disability will frequently be removed by the addition of such words as " or any other mines or quarries ;" and a limitation will not, at the present day, be easily put upon the generality of such words. 1 1 See ante, pp. 273. 274. Q. B. 940 ; Midgley v. Richardson, 14 - Hamilton v. Graham, L.R. 2 So. & M. ..V W. 595 ; Bowes c. Kavensworth. D. 175. 1"' C. B. 512. 3 See Dand p. Kingscote. G M. & W. 4 See Bidder v. North Staf. R. C. 174 ; Durham, &c, Co. v. Walker, 2 cited ante. p. 364. 368 NEIGHBOURS — ROADWAYS — [cHAP. XVI. (5) Evidence of an intention, that no such disability should exist, may be afforded by such circumstances as that the owner of the mine or quarry was previously to the instrument, under which he claims the right in question, entitled to exercise that right, and that his previous right was not intended to be inter- fered with. (G) In doubtful cases the consideration, that, if the right claimed by the owner of the mine or quarry were not conceded, he would not have obtained any larger powers than he would have obtained by implied grant, may turn the scale in his favour. c. Direction — Dimensions— Construction — Maintenance. (a) Direction. Where direc- Where the direction, which the way may take, is indicated tion lmnted. ^.^ gu flj c j ent clearness, the grantee of a right of way cannot, prima facie, make or use a way in any other direction. Thus, the grantee of a free and convenient way " in, through, over, and along" a slip of land, was held not to be entitled to make a transverse way across the land. 1 And in such a case, the mere fact, that the way indicated is rough or inconvenient, will not justify the grantee in making or using a way in another direc- tion. 3 Where direc- Where the direction, which the way may take, is not indicated limited* with sufficient clearnesses where the words used are "free ingress, egress, and regress, way leave, and passage to and from " the mines in question, the grantee is not entitled, at pleasure, to make a way in any direction, without regard to the necessities of his work- ings. 3 And his right in such a case to make the way in a particular direction will usually depend on whether he acts with reasonable skill and discretion. 4 If, however, he does so act, he will not be confined to the shortest practicable course to the terminus, to which his minerals are to be carried ; if a more circuitous route 1 Senhouse V. Christian, 1 T. R. 3 Farrow r. Vansittart, 1 Eft. Ca. 560. 609. 2 Wimbledon, kc. Cons. v. Dixon, 4 Abson v. Fenton, 1 B. facie right of through his neighbour's property. 3 And upon a grant or excep- ventilation, tion of mines, with liberty, express or implied, to ventilate the mines through the property of the grantor or grantee, the i See Brunton r. Hall, 1 G. & D. As regards "dimensions" and "con- 210 (n.), where the learned reporters struction" no difficulty can possibly state the conclusion to be drawn from arise. And as regards " maintenance," the cases decided prior to the date of sec «Mf«, p.370. In Dandt\Kingscote,6 the report, and compare it with the M. & W. 174, the validity of a plea of a civil law doctrine upon the subject, customary right of way, which was set Cf. the law, where a right of way is up, was not considered; but, apparently, conferred by express grant, ante, pp. only because sufficient evidence in 356 et seq. ; 361 et seq. support of the plea was not produced. 2 Wimbledon, &c, Cons. v. Dixon, As to extinguishment of rights of way, 1 Ch. D. %&2,per James and Mellish, see L. C. Conv. 230 et seq.; Shelf. L.JJ. In other respects there can be Real Prop. Stat,, 81, 82, 83. no difficulty as regards "direction." 3 See Powell o. Aikin, 4 K. & J. 356. 376 NEIGHBOURS — ROADWAYS [chap. XVI. Rail. CI. Cons. Act. mine-owner is not, prima facie, entitled so to ventilate an ad- joining mine, of which he may also be the owner. 1 A landowner, whose land is compulsorily purchased by a rail- way company, under the authority of the Rail. CI. Cons. Act, 1845 ; who possesses mines under the railway, or within the pre- scribed distance therefrom, which he is prevented from working by reason of apprehended injury thereto ; and who possesses other adjoining mines, which extend so as to lie upon both sides of the railway ; has under the Act a similar right to make airways between such other mines through the intervening land for ventilating purposes, exercisable under similar limitations, and followed by similar consequences, to those already 2 noticed Wat. CI. Act. with respect to roadways. 3 And the Wat. CI. Act contains somewhat similar provisions. 4 The Land Tax Red. Act, 42 Geo. 3, c. 116, contains provisions reserving mining easements, where land containing mines is sold under the powers of the Act. 5 Mining easements in respect of air may also be exercised under the Incl. Act, 22 & 23 Vict. c. 43 ; r> and by the Duke of Cornwall and his lessees under the Act 7 & 8 Vict. c. 10o. 7 These several rights have been already mentioned. 8 Other statu- tory gi - ants. Previously specified remedies — " injurious affection." Sect. 6.— REMEDIES. a. Interference with Right. A mine-owner, on whose land a company have entered under compulsory powers, and who is "injuriously affected" by the execution of their works, may be entitled to receive compensa- tion under s. 68 of the Lands CI. Cons. Act, 1845. 9 The diffi- culties, which sometimes arise in estimating the amount of compensation, are illustrated in Bidder v. North Staff. Rail. Co. 10 There the plaintiffs were lessees under leases of different dura- 1 See and consider Bowser v. Mac- lean, 2 De G. F. & J. 415 ; Proud v. Bates, 34 L. J. Ch. 406; Eardley r. Granville, 3 Ch. D. 826 : in analogy to the rule in the case of a right of road- way, that where a right of roadway is granted for a specified purpose, the way cannot be used for a different purpose : see ante, p. 361. 2 Ante, pp. 370, 371. 3 See ss. 80, 82 of the Act, cited ante, pp. 6 n., 7 n. 4 See 10 & 11 Vict, c. 17, s. 24. 5 Ante, p. 146. 6 Ante, pp. 276, 277. 7 Ante, pp. 277, 278. 8 See preceding notes. 9 8 & 9 Vict, c. IS. 10 4 Q. B. D. 412, 432. SECT. 6.] AND AIRWAYS — REMEDIES. 377 tions of two adjoining mines. The company had, under their compulsory powers, taken a portion of the surface over the mine comprised in the longer lease ; and had thereby cut off the direct access, which had previously existed between that mine and a neighbouring canal. A new access was possible. But it was more circuitous ; and it was only obtainable by exercising a right, which the plaintiffs were entitled to exercise, 1 of going over the sur- face of the mine comprised in the shorter lease. In estimating the damage which the plaintiffs had sustained, it was held, (1) that a deduction should be made on account of the power to acquire the new access; but, (2) that the circuitousness of the new access, the shorter duration of the lease of the land over which it was obtainable, the damage which it would occasion to such land, and all other like matters, should be taken into con- sideration, and allowed for, in making the deduction. A mine- Damages for owner may also be entitled to compensation, where a portion of severance - his mines is taken under compulsory powers, and his mining communications thereby severed. 2 But damages for severance cannot, of course, be obtained, where the portion taken does not actually contain within itself the mining communication. 3 Where a statutory remedy is specified, it should be pursued. 4 Subject to the necessity in proper cases of pursuing specified Ordinary remedies, an action for damages will lie for obstructing a right damages - of roadway or airway. 5 And, although an action does not, in general, lie for a public nuisance, without special damage, yet, if a man is the owner of a colliery adjoining a public high- way, and his coal carts are stopped on the highway, this is sufficient special damage to support an action. 6 The dominant Injunction, owner may also, in general, have an injunction ; 7 and, if necessary, a mandatory injunction. 8 However, in order to 1 See ante, pp. 364, 365. 287 ; Mold r. Wheatcroft, 27 Beav. 2 See, as to s. 81 Rail. CI. Act, and 510, 521. s. 25 Wat. CI. Act, ante, pp. 7, n. ; 9. 6 Iveson v. Moore, 1 Ld. Raym. 3 Be Huddersfield and Jacomb, 17 486 ; 1 Salk. 15. Eq. 476. As to what is included in "' Newmarch v. Brandling, 3 Swanst. the bond required to be given under 99 ; Bell v. Midland R. Co., 3 De G. & s. 85 of the Lands CI. Act, see ante, J. 673; Mold r. Wheatcrof t, u.s. For p. 347. the form of the injunction, see Mold 4 See Thicknesse w. Lancaster Canal v. Wheatcrof t, u.s. Co., 4 M. & W. 472. 8 See Bradburn v. Morris, Morris v. 5 Bell v. Midland R. Co., 10 C.B. N. S. Bradburn, 3 Ch. D. 812, 820. 378 NEIGHBOURS — ROADWAYS [CHAP. XVI. entitle the dominant owner to a remedy, he must have a present intention to use the way for mining purposes. 1 Damages. Wayleave or airleave rent. Injunction. b. Improper User. (a) Existence of Remedies. If a man, who has no property in a piece of laud, and who has no right of way over or through it for the carriage of his minerals or the ventilation of his mine, uses it for the carriage of his minerals or the ventilation of his mine, he may be made liable in damages. 2 And, if a man, although having a right of way over or through his neighbour's land for the carriage of his minerals or the ventilation of his mine, uses that land in an improper manner ; whether as respects the kind of way which he uses ; 3 or the direction which it takes ; 4 or the purpose for which he applies it ; 5 he maybe made similarly liable. Or, in the latter case, the injured party may obtain compensation by way of wayleave or airleave rent upon all minerals gotten out of the wrongdoer's mine, which have been carried or ventilated through the land of the injured party. 6 The injured party will also, in general, be entitled to an in- junction to restrain the future user. 7 And for this purpose 1 Bradburn v. Morris, Morris v. Bradburn, 3 Ch. D. 812, 820. 2 Monmouth Canal Co. r. Harford, 1 C. M. & R. 614. See also Martin v. Porter, 5 M. & W. 352, 353. 3 Neath Canal Co. r. Ynisarwed Colliery Co., 10 Ch. 450. < Senhonse v. Christian, 1 T. E. 560 ; Abson v. Fenton, 1 B. & C. 105 ; Dand v. Kingscote, 6 M. & W. 199. 5 Howell v. King, 1 Mod. 190 ; Stafford v. Coyney, 7 B. & C. 257; Dand v. Kingscote, «. s., 195 ; Midgley - r. Richardson, 14 M. & W. 595. e See Powell v. Aikin, 4 K. & J. 343 ; Hilton v. Woods, 4 Eq. 441, 442 : Jegon v. Vivian, 6 Ch. 742 ; Phillips v. Homfray, ib. 770. For the form of an inquiry, which will be made with a view to providing such compensa- tion, see Hilton v. Woods, Set. 206 ; Jegon v. Vivian, 6 Ch. 762, 763, Set. 205, 206 ; Phillips v. Homfray, 6 Ch. 776. In the latter case the L. C. refused (p. 781) on appeal, but chiefly on the ground of expense, to direct an inquiry as to ventilation. In Living- stone v. Rawyarda Coal Co., 5 App. Cas. 25 (the facts of which are stated port, Chap. XXII., Sect. 2, c. (o)) it was intimated, that no compensation by way of way-leave rent could have been recovered : see p. 38, per Lord Hatherley ; p. 43, per Lord Blackburn. In that case, however, no damage could have been shown by the carriage of the coals through the pursuer "s land. 7 Powell r. Aikin, v. s, ; Wright v. Pitt, 12 Eq. 417 ; Phillips r. Homfray, ■x.s. ; Wimbledon, &C, Cons. r. Dixon, 1 Ch. D. 362 ; Eardley v. Granville, 3 ib. 826, 832. SECT. 6.] AND AIRWAYS. 3 it is immaterial, that no special injury can be done him by a continuation of the user. 1 And if a man lays rails upon his neighbour's land for the purpose of carrying his minerals over them ; 3 or makes an aperture in his neighbour's land for the purpose of carrying his minerals, or ventilating his mine, through it ; 3 without having the right to do so ; he may, in general, be compelled by mandatory injunction to remove the rails, or to stop the aperture up. 4 A man, who does not im- properly make an aperture, but merely improperly uses one made by a previous wrongdoer, will not be ordered to himself stop it up, and to undergo the expense necessary for that pur- pose. 5 But he will be ordered to give access through his pro- perty to the injured party, to enable the latter to stop it up, and to carry all materials necessary for that purpose. 6 (/3) Loss of Remedies. The death of the wrongdoer may be a bar to the remedy ; Death of having regard to the maxim, actio 'personalis movitur cum*™* 15 0i persona. Thus, in Phillips v. Homfray, 7 inquiries were di- rected with a view to compensate the plaintiffs by way of way- leave rent for the improper user of their property by the de- fendants. While the inquiries were being proceeded with one of the defendants died. It was held, that the inquiries should, as against the estate of that defendant, be stayed. 8 1 Powell v. Aikin, 4 K, & J, 343 ; to remain, rails, train-plates, sleepers, Eardley v. Granville, 3 Ch. D. 826, and other articles on the plaintiff's 832. Cf. Goodsonr. Richardson, 9 Ch. land, see Neath, &c, Co. v. Ynisarwed, 221. &c., Co., ib. 196. And for the form of 2 Neath, &c, Co. v. Ynisarwed, &c. an interlocutory injunction to restrain Co., 10 Ch. 450. the construction of a railway or train- 3 Powell v. Aikin, it. s. way for mineral purposes, see Holden 4 For the form of an order restrain- v. Hargreaves, ib. 204, 205. ing transport and ventilation, see Hil- 5 See Powell v. Aikin,?/. . Gaved v. Martyn, 19 C. B. N. S. 386 NEIGHBOURS WATER — USING AND ABSTRACTING [CHAP. XVII. Remedies for interference. Subterranean water. their mines, and for that purpose to dig trenches over other persons' lands. 1 If a man's acquired rights in water flowing naturally and in a defined course are infringed, he may recover damages and have an injunction.- And it is not necessary to show special damage in order to recover for the diversion of a natural water- course, in respect of which rights have been acquired by grant or prescription. 3 d. Subterranean Water. It is sufficient to say upon this subject that, as far as is possible from the nature of the case, the same principles apply as those which apply in the case of surface water flowing naturally in a defined course. 4 Water in un- defined course may, prima facie, lie abstracted or diverted at pleasure. Sect. 2. -WATER FLOWING NATURALLY— UNDEFINED COURSE- PERCOLATIONS. (/. Undefined Course. Very different considerations apply, where the water, whether surface or subterranean, " comes no one knows exactly Avhence, and flows no one knows exactly how ; winch is unconfined in any channel, either as rainfall or from springs of the earth ; which may vary from day to day, or spring up beneath the sur- face in a direction which no one knows." 5 If water flows in its natural course, whether surface or subterranean, but does not flow in a defined channel, any person through whose property it flows may, primd facie, abstract or divert it at pleasure. 6 A 1 Bastard r. Smith, 2 M. & Rub. 129. As to a customary right in non-riparian owners to use the water of a stream, see Harrop v. Hirst, L. R. 4 Exch. 43. - See Pennington r. Brinsop Hall Co., 5 Ch. D. 774. 3 See Northam r. Hurley, 1 E. & B. 665 ;Rawstronr. Taylor, 11 Exch. 369. As to inspection, see ante, "pp. 383. 38 I. 4 See Dickinson v. Grand Junc- tion Canal Co., 7 Exch. 300, 301; Dudden v. Clutton, 1 H. 3 ; ante, pp. 392, 393. had not been made by the bounders, 3 See 3 Exch. 779. In Wood v. but was only subject to their rights. Waud, the intermediate owner had, See, as to tin bounding and streaming, besides diverting, abstracted and de- post, Chap. XVIII., Sect. 3, d, Sect, tained water from an artificial water- 4, cl. course of a temporary natiire, so as to 6 See also Wardle v. Brocklehurst, occasion sensible loss to the plaintiff. 1 E. & E. 1060, 1061 ; Mason v. Shrews- He was held liable for so doing, but bury, &c, Co., L. R. 6 Q. B. 584. the question was only raised upon a Briscoe v. Drought (11 Ir. C. L. Rep. plea of not guilty. - 250), to the contrary upon this, can- 't 19 C. B. N. S. 732. not be sustained. Cf. Ivirney v. 5 Called in the case the " upper laun- Stocker, 1 Ch. 409. der." See as to the "lower launder," PART A, SECT. 3.] ABSTRACTING — ARTIFICIAL COURSE. 395 In fact the enjoyment of the easement 1 of discharging water upon the property of a neighbour is of itself no evidence of the existence of an easement in favour of that neighbour of being bound to continue the discharge. 3 Where an artificial watercourse was constructed over the land Construction of watercourse of the servient owner under a mere license granted by him to under mere the dominant owner ; and a successor in title of the dominant owner enjoyed it without interruption for twenty years ; and he had no knowledge of the license ; the fact of the license is not of itself sufficient to stamp the character of precariousness on the enjoyment. But it is evidence from which a jury may find that there was never any enjoyment as of right. 3 (y) Remedies. If a man's rights in an artificial watercourse are infringed, he Remedies for may recover damages. 4 And it is not necessary to show special rights— damage in order to recover for the diversion of an artificial dama s es - watercourse, in respect of which rights have been acquired by grant or prescription. 5 The injured party may also have an injunction. injunction. 6 But his right to an injunction may be lost by laches ; especially if he has permitted expenditure by the other party. 7 And, if the enforcement of the right would cause inconvenience or injury to the working of a mine, it will not, except in clear cases, be enforced ; at all events on interlocutory motion. 8 1 See infra, Part C, Sect. 1, b. either by grant or prescription, such 2 See Briscoe v. Drought, 11 Ir. rights are extinguished by unity of C. L. Eep. 250 ; Gaved v. Martyn, 19 seisin, and are suspended by unity of C. B. N. S. 758. Cf. Mason v. Shrews- possession, of the land from which and bury, &c, Co., L. E. 6 Q. B. 582, 587. the land to which the water flows : 3 Gaved v. Martyn, u. s., 732 : see Ivimey r. Stocker, 1 Ch. 396, 408. p. 745,^'rWilles, J. As to acquiring 4 Gaved v. Martyn, 19 C. B. N. S. by way of easement a right to the 732 ; Ivimey v. Stocker, 1 Ch. 408. flow of a part of water, which is itself 5 See Eochdale Canal Co. v. King, penned back under an acquired ease- 14 Q. B. 122. ment, see ante, p. 385. For a claim 6 Ivimey v. Stocker, u. s. to use canal water for mining pur- 7 See Birmingham v. Lloyd, 18 Ves. poses, based on expectation followed 515. by expenditure, see Bankart v. Ten- 8 See ib. Cf. other cases cited antr > nant, 10 Eq. 141. Where rights in p. 62, u. \ an artificial watercourse are acquired •396 NEIGHBOURS WATER [CHAP. XVII. PART B.— FOULING WATER. a. Water flowing naturally— Defined Course} Riparian On the same principle, that a riparian owner may use a stream SFtriSd in a reasonable degree, or abstract or divert it in reasonable jack, foul Quantities 2 he may, by washing his minerals by means of it, or natural sur- 1 . • • • 1, -j. ^^^. face water. pumping water from his mines into it, alter its quality m a reasonable degree. But, as he may not sensibly diminish the body of the stream, 3 he may not sensibly alter its quality. He must not, therefore, prima facie, impregnate the stream with poisonous or foul matter. 4 But may under He may, however, acquire by grant or prescription the right grant or pre- , f j t ^ Q stream# 5 ^nd a right acquired by prescription may be scription. . . . 7 acquired either at common law, or under the Prescription Act.' In Carlyon v. Lovering* the plaintiff and the defendant were riparian owners of a watercourse flowing upon the surface. The defendant's property was situated higher up the stream than the plaintiff's, and consisted of tin mines. The defendant, in washing his minerals, sent a quantity of sand, stones, and rubbish, which became dislodged in the process, down the stream ; and the stream was in consequence fouled. In an action for so doing a plea of a right under the Prescription Act 7 was held a good plea. In Wright v. Williams 9 an action was brought for fouling a watercourse on the plaintiff's land. The defendant, who was the owner of a copper mine, pleaded a right 1 As to what constitutes such water, As to fouling from natural drainage. ??/. see ante, pp. 380, 381. The point was left open in the Sc. cnse 2 s ee an te, p. 382. of White r. Dixon, 2 Sess. Cas. (4th 3 S ee ib. ser 0> 904 - < See Hodgkinson v. Ennor, IB.i; 5 See Wood v. Waud, ?/. s., 772 ; S. 229 ; Pennington v. Brinsop Hall Carlyon r. Lovering, 1 H. & N. 797, Coal Co., 5 Ch. D. 769 : see also Wood 798. For a claim by implied grant 1o v. Waud, 3 Exch. 748. It is no defence pollute water, see Hall r. Lund, 1 H. to an action for fouling a stream to & C. 676. show, that it is also fouled by other 6 See Bealcy r. Shaw, 6 East, 214, persons : Wood v. Waud, v. s. ; Weed 215. v. Sutehfe, 2 Sim. N. S. 166 ; Crossley 7 See s 2. cited ante, p. 314, n. s . r. Lightowler, 2 Ch. 478 ; Pennington 8 1 H. & N. 784. r. Brinsop Hall Coal Co., v. *., 772. 9 1 M. & W. 77. PART B.] FOULING WATER. 397 to sink pits on his own land ; to fill such pits with iron ; to cover the same with water pumped from the mine for the purpose of precipitating the copper contained in such water ; and then a right under the Prescription Act l to let off the water impregnated with metallic substances into the water- course. The plea was held good ; on the ground that the right in question was in substance a claim to a watercourse over the land of another person.- A claim by custom to foul natural surface water was held Or under good in Carlyon v. Lovering? In that case (the facts of which have been already partly stated i ), one of the pleas was a plea of an immemorial custom for miners within the stannaries of Corn- wall to do the act complained of. 5 The decision was founded on the fact, that the custom in question was not indefinite or unreasonable, but limited to the necessary working of the mines. 6 If a man's natural 7 rights in water flowing in its natural course Remedies for and in a defined channel are infringed by foulino- it, he mav in wro 1 I ? gfally i . ° J o ' ,1J 'V ' LlL fouling natural general, recover damages. 8 The measure of damages will of surface water. course be the expenses to which he has been put. 9 He is also, in general, entitled to an injunction to restrain the continuance of the injury. And his right to an injunction is independent of whether he can prove actual damage. 10 If a man's acquired 11 rights in water flowing in its natural course and in a defined channel are infringed by fouling it, he may, in general, recover damages, and have an injunction. 13 1 Sees. 2, cited ante, p. 3H, n. s . ningfcon v. Brinsop Hall Coal Co., 5 2 See also Wood v. Waud, 3 Excli. Ch. D. 774. 74S, 772 ; and cf. Baxendale v. Mc. 9 Pennington v. Brinsop Hall Coal Murray, 2 Ch. 790. Co., u. s., 709, 774. 3 1 H. & N. 7S4. >o JTb. ; and see ante, pp. 382, 383. For 4 See preceding page. the form of an injunction to restrain 5 See post, Chap. XVIII., Sect. the pollution of a stream, see Ling- 3, d. wood v. Stowmarket Co., 1 Eq. 77 : see 6 See, as to the requisites of a custom, also Set. 225 et seq. ante, p. 90, n. -. » See ante, pp. 3S4, 385. ' See ante, pp. 381, 382. l2 See Pennington v. Brinsop Hall 8 Wood v. Waud, u. s., 748 ; Pen- Coal Co., v. s. 393 NEIGHBOURS — WATER- [CHAP. XVII. No right, ■prima facie, to foul water in uudefmed channel, or percolating water. b. Water flowing in Natural Course but not in Defined Channel — Pe rcolating Water. It does not follow, that, because water, wbich does not flow in a defined channel, 1 or which percolates, 2 may, primd facie, be abstracted or diverted, it may be fouled. Whoever fouls water, which does not flow in a defined channel, may, prima facie, be made liable in damages. 3 And whoever fouls per- colating water, may, primd facie, be made liable in damages; 4 and may be restrained by injunction. 5 Or water in artificial channel — Magor v. Chad wick. Whaley v. Laing. c. Water flowing in Artificial Channel.. In Magor v. Chadwick 6 the owners of a mine made an adit through their lands in order to drain the mine. They after- wards ceased to work the mine ; and the plaintiffs, who were the owners of a brewery, and through whose premises the water had flowed for more than twenty years after the working ceased, had used it during that time for brewing. The defendants, who were the owners of other mines, and did not claim under the owners of the adit, began to use the adit for the purpose of draining their mines ; and, in so doing, they polluted the water. They were held liable. In Whaley v. Laing 1 the plaintiff, by the permission of a canal company, made a communication from the canal to his own premises. By means of the water so conducted he fed the boilers of an engine, which he used for mining purposes. The defendant, without any right or permission from the company, fouled the water in the canal, and, in consequence, the water which came to the plaintiff's premises ; and by contact with this water the plaintiff's boilers were injured. It was contended, that the plaintiff had no right to the water until he took it; that, when he took it, it was already fouled ; that it was, therefore, his own act which occasioned the injury ; 1 Ante. p. 386. - Ante, p. 387. 3 Hodgkinson v. Ennor.4 B. & S. 229. * lb. B Turner v. Mil-field, 34 Beav. SCO ; Womersley e. Church. 17 L. T. n.s. ISO. 6 11 A. & E. 571. 7 2 H. 4: N. 476. PART B.J FOULING WATER. 399 and that he could not, accordingly, have any right of action. The defendant was, however, held liable. 1 In Mo.gov v. Chadvrick the defendants were strangers, and the Other cases „ , . i , c , l C Of fouling. plaintiffs had an uninterrupted enjoyment ot the water lor more than twenty years ; and the decision proceeded expressly upon those two grounds. 2 It seems, however, clear, that a person, in whose land an artificial watercourse commences to flow is, prim l facie, under an equal disability with a stranger to foul that water, to the prejudice of the person whose land it reaches. And it seems equally clear, that such disability ought not to depend on an un- interrupted enjoyment by the injured party for twenty years ; but that it ought to exist, however short the enjoyment may be. 3 Whether, in each of these cases, the disability extends to an intermediate owner through whose land the water flows without any act on his part to induce such flow, is a question of greater difficulty. But it is conceived, that this may also be answered in the affirmative. If a man's rights in an artificial watercourse are infringed by Damages, fouling it, he may of course recover damages. 4 d. Rivers Pollution, P vevention Act. Every person, who puts the solid refuse of any quarry into Offences c -,i - L i a ii i. -2. against the a stream, 3 so as to interfere with its due now, or to pollute its Act. waters, commits an offence against the Riv. Poll. Prev. Act, 1S76. 6 Every person, who puts any solid matter from any mine into auy stream, in such quantities as to prejudicially interfere with its due flow ; or any poisonous, noxious or polluting solid or liquid matter proceeding from any mine, other than water in the same condition as that in which it has been 1 This decision was in the Exeh. Ch. 31 Bear. 390. Such a fouling is an ex- (nom. Lain. Kenrick, 7 C. B. 563, 566 ; Fletcher 162 ; L. R. 1 Exch. 89, 90 ; Hurdman r . Rylands, 3 H. & C. 7S9, 796 ; Smith r. N. E. R. Co., 3 C. P. D. 173. „. Fletcher, L. R. 9 Exch. 65 ; Cromp- 2 5 M. & W. 203. ton v. Lea, 19 Eq. 127. 3 Ante, p. 392. 8 Westminster, &c, Co. v. Clayton, 4 Magorr.Chadwick,llA.&E.571; 3fi L. J. Ch. 476,478. Cf. Lomax r. Wood v. Wand, 3 Exch. 748 ; Greatrex stott, 39 ib. 834. The law of Scotland r. Hayward, 8 ib. 291 ; Gaved v. Mar- j s the same : see Durham v. Hood, 9 tyn, u. s., 732 ; Mason r. Shrewsbury, Sess. Cas. (ser. 3). 474, where the &c, Co., L. R. 6 Q. B. 578 : see ante, upper owner had exploded large pp. 393, ct xeq. charges of gunpowder in order to get 5 Lomax v. Stott, 39 L. J. Ch. rid of the water. 83L 9 Baird v. Williamson, 15 C. B. N. S. 6 Baird v. Williamson, 15 C. B. N. 376 ; Rylands v. Fletcher, L. R. 3 S. 390, 391 ; Westminster, &c, Co. v. H. L. 341. And see A.-G. v. Tomline, Clayton, 36 L. J. Ch. 476, 478 ; Plant 12 Ch. D. 228, 229. v. Stott, 21 L. T. N. S. 106 ; Phillips w g ee Westminster, &c, Co. r. Clay- r. Homfray, 6 Ch. 781. ton, 36 L. J. Ch. 476, 478 ; Rylands 7 Haward v. Bankes, 2 Burr. 1114 ; v. Fletcher, L. R. 3 H. L. 341, 342. 402 NEIGHBOURS — WATER — [CHAP. XVII. b. Acquired Rights. Right may be A right may be acquired as an easement by grant ; or by giant or pre- prescription at common law, or under the Prescription Act ; to Bcnption. interfere actively in discharging water upon the land of another, whether such water does, or does not, originate in the land of the dominant owner. 1 A liberty to drain water from an intended " colliery " will, having regard to the wide meaning of that word, 2 receive a proportionately wide construction. 3 Upon a grant or exception of mines, with liberty express or implied to the mine owner to drain the mines through the property of the grantor or grantee, the mine owner is not, prima facie, entitled so to drain an adjoining mine of which he may also be the owner. 4 Rail. CI. Act. A landowner, whose land is compulsorily purchased by a railway company under the authority of the Rail. CI. Cons. Act, 1 845 ; who possesses mines under the railway, or within the prescribed distance therefrom, which he is prevented from working by reason of apprehended injury thereto ; and who possesses other adjoining mines, which extend so as to lie upon both sides of the railway ; has under the Act a similar right to make water communications between such other mines through the intervening land for drainage purposes, exerciseable under similar limitations, and followed by similar consequences, Wat. Cl. Act. to those already 5 noticed with respect to ways. 6 And the Wat. CI. Act contains somewhat similar provisions. 7 The Land Tax Red. Act, 42 Geo. 3, c. 116, contains provisions, reserving mining easements, where land containing mines is Other statu tory grants. 1 See Arkwright v. Gell, 5 M. i: W. 203 ; Magor v. Chadwick, 11 A. & E. 571 ; Wood v. Waud, 3 Exch. 748 ; Gaved v. Martyn, 19 C. B. N. S. 758 ; Roberts v. Rose, 3 H. & C. 1G2 ; L. R. 1 Exch. 82, 89, 90 ; Mason v. Shrews- bury, &c, R. Co., L. R. 6 Q. B. 583. Cf. Carlyon v. Lovering, 1 H. & N. 784. For claims by implied grant to use a drain, see Pyer v. Carter, 1 H. & N . 916 ; Ewart v. Cochrane, 4 Macq. 117. 2 See ante, p. 25. a See Hodgson v. Field, 7 East, 613, 620. 4 See and consider Bowser v. Mac- lean, 2 De G. F. & J. 415 ; Proud v. Bates, 34 L. J. Ch. 406 ; Jegon v. Vivian, 6 Ch. 742 ; Eardley v. Gran- ville, 3 Ch. D. 826 : in analogy to the rule in case of a right of way, that where a way is granted for a particular purpose, it cannot be used for a dif- ferent purpose : see ante, p. 361. 5 Ante, pp. 370, 371. 6 See ss. 80, 82 of the Act, cited ante, pp. 6 n., 7 n. 1 See 10 & 11 Vict, c. 17, s. 24. TART C, SECT. 2.] ESCAPE OF WATER. 403 sold under the powers of the Act. 1 Mining easements in respect of water may also be exercised under the Inch Act, 22 & 23 Vict. c. 43 ; 3 by the Duke of Cornwall and his lessees under the Act 7 & 8 Vict. c. 105 ; 3 by the Crown and persons claiming under it under the Cornwall Subm. Mines Act, 1858 ; 4 and by the Crown in respect of the foreshore or the adjacent lands under the Crown Lands Act, 1865. 5 These several rights have been already mentioned. In whatever way a right is acquired in respect of water, it must not be exercised wilfully or negligently. 7 Not exer- ciseable wil- fully or negligently. Sect. 2.— ESCAPE OF WATER. a. Natural Rights — Gravitation — Water present Naturally. (a) Generally. Prima facie, a man is free from liability, if water, which is Primd facie ,i i • c i • i i • right to per- present in the ordinary course ot nature upon or within or m f t escape f beside his property, escapes from or through his property to wa * er P reseilt that of his neighbour by the mere force of gravitation. 8 If, in such a case, the neighbour wishes to protect himself, he should put up barriers. 9 And this is his only remedy. He cannot, for example, enter upon the property of the other owner, in order to remove the water. 10 1 Ante, p. 146. 2 Ante, p. 276. 3 Ante, p. 277. 4 Ante, p. 279. 5 Ante, p. 280. 6 See preceding notes. 7 See Smith r. Kenrick, 7 C. B. 515 ; Rylands v. Fletcher, L. R. 3 H. L. 330; Crompton r. Lea, 19 Bq. 127. 129. 8 See Smith v. Kenrick, u. s., 515, 564 ; Fletcher v. Rylands, 3 H. & C. 789 ; Rylands v. Fletcher, L. R. 3 H. L. 338, 342 ; Jegon r. Vivian, 6 Ch. 758, 759 ; Wilson c. Waddell, 2 App. Cas. 98, 99 ; A.-G. v. Tomline, 12 Ch. D. 228, 14 lb. 63. 9 See Smith v. Kenrick, v. .?., 565 ; Baird v." Williamson, 15 C. B. N. S. 392 ; Westminster, &c, Co. v. Clayton, 36 L. J. Ch. 478 ; Rylands r. Fletcher, 7i. s., 339, 341 ; Crompton v. Lea, v. s., 123, 124 : see also Jegon r. Vivian, v. s. " The water is a sort of common enemy, against which each man must defend himself," Smith r. Kenrick, v. s. , 566, per Cresswell, J. «> See R. r. Spon Lane Co., 3 Q. B. D. 680, 682, per Cockburn, C. J. , and Mellor, J. The law of Scotland is the same : see Durham v. Hood, 9 Sess. Cas. (3rd ser.) 474. Dd2 404 NEIGHBOURS — WATER — [CHAP. XVII. Well-water. Upper and lower mines- natural workings — Smith v. Kenrick. Rainfalls — Wilson v. Waddell. (/3) Natural User of Property — Damage. So, if a man digs a well upon his land ; and bis neighbour, whose land is on a lower level, afterwards opens a mine, and the water flows into it ; the owner of the well is free from liability. 1 And if the workings, or an alteration in the workings, of a mine owner upon a higher level are proper and usual, he will be free from liability ; although, as the necessary result of such workings, or such alteration, water, which had not previously so descended, descends by gravitation into a lower mine ; or water, which had previously descended, descends in greater quantities. 2 Thus, in Smith v. Kenrick? the plaintiff and the defendant were the owners of collieries A. and B. The collieries adjoined, and B. was on a higher level than A. A predecessor of the defendant, but with whom he had no privity, had made three ' thyrlings ' or large holes through a vertical seam of coal in A., which formed a barrier between A. and B. When the defendant became the occupier of B., there was a large body of sub- terranean water therein, which was supported by a thick horizontal bar of coal in B. The inevitable effect of removing the bar would be, that the water, by the mere force of gravitation, would flow through the thyrlings into A. The defendant nevertheless worked out the bar in the usual and proper course ; and A. was in consequence inundated. It was held, that the plaintiff had no remedy. 4 And the principle applicable to water collected by previous workings equally applies to water collected by the workings or alteration in question. 5 So in the case of surface water produced by rainfalls. Thus, in Wilson v. Waddell, 6 the respondents were the owners of mines, which dipped towards adjacent mines of the appellants in such a way that rain falling on the surface of the respondents' 1 See the question aske 1 by Bram- well, B., in Fletcher v. Rylands, 3 H. &c C. 781. Cf. the converse case of Acton v. Blundell, ante, p. 388. 2 See Scots Mines Co. v. Leadhills Mines Co., 3-1 L. T. 34. a 7 C. B. 515. 4 See also Baird v. Williamson, 15 C. B. N. S. 37G, 3 ( J0 ; Rylands v. Fletcher, L. R. 3 H. L. 339, 341 ; Crompton v. Lea, 19 Eq. 123, 124, 126 ; Hurdman v. N. E. E. Co., 3 C. P. U. 174 ; West Cumb., &c, Co. v. Kenyon, 11 Ch. D. 787, 788, 789 ; A.-G. v. Tom- line, 12 ib. 228. 5 Crompton v. Lea, u. $., 127. 6 2 App. Cas. 95. PART C, SECT. 2.] ESCAPE OF WATER. 405 mines would, unless stopped by such surface or by the minerals thereunder, descend by gravitation into the appellants' mines. The respondents, in the usual and proper course of working, removed their minerals. The superjacent surface in consequence cracked ; and the rainfall, which would otherwise have flowed over it, flowed into the respondents' workings, and thence into the appellants' mines. It was held, that this was a damnum absque injuria ; and that the appellants were without a remedy. No servitude, in such cases, lies, prima facie, on the owner of the upper mines, for the benefit of the owner of the mines on the dip, to preserve either the surface, or the subjacent minerals, as water-tight as the undisturbed state of the strata. 1 And even where the upper mine is worked, not by mining, but by quarrying, the result is the same ; although, as the consequence, the rain, instead of escaping by the ordinary watercourses, becomes confined in a leaky or porous hollow. 3 - Lomax v. Stott 5 was decided on similar principles. There Lomax v. the defendants were working mines in two places, A. and B. ; B. "" being to the dip of A., towards which the water from A. would naturally flow in the proper course of working. The defendants worked out the minerals in A. ; and then, to save pumping up the water, they stopped up the opening between A. and B. The water in consequence became dammed up in A. ; and it then rose so high as to overflow by gravitation the plaintiff's mine. It was held, that the plaintiff had no remedy. 4 And if the higher owner makes a crut, or drift, or way, in his Drifts or ways mine, not for the purpose of artificially conducting water into or dinary his neighbour's mine, but in the ordinary and proper course ^"her owner's of working his own mine ; and water flows along such crut, or property, drift, or way, and floods his neighbour's mine ; the higher owner will not, prima facie, be liable. 5 1 See Wilson v. Waddell, 2 App. had been pierced by the plaintiff's pre- Cas. 99. decessors, who, in so doing, had tres- 2 See Smith v. Fletcher, L. R. 7 passed in the defendants' mine. Exch. 307, 309 ; 9 ib. 66 ; Fletcher v. 5 See Baird v. Williamson, 15 C. B. Smith, 2 App. Cas. 786 ; and cf. N. S. 376, 390, 391, where a crut had Hurdman v. North East Rail. Co., 3 C. been made ; Jegon v. Vivian, 6 Ch. P. D. 168. 742, 758, where drifts and ways had 3 39 L. J. Ch. 834. been made. See also Scots Mines 4 Thebarrierbetweenthetwomii.es Co. v. Leadhills Mines Co., 34 L- 406 NEIGHBOURS— WATER [CHAP. XVII. User of way of Upon similar principles, a man who is entitled to sink a shaft necessity. through overlying land from the surface to the mines in order to reach and work them, 1 is not apparently the less entitled, because it is shown, that the process of sinking will inevitably let loose a body of water within the overlying land, and thereby ruin it. 2 It is at all events certain, that he will not be re- strained from so doing, if the anticipated danger is shown to be visionary. 3 Law otherwise, Where, however, the outlet into the lower mine was made made e b° y UtIet by or by the default of the higher owner, or his prede- higher owner. cessors j n title, the principle of Smith v. Kenrick 4 will not apply. In such a case the higher owner cannot free himself from liability on the ground that the flow from his property is due to gravitation. 5 But if the trespass, and the flow of water which is the subject of complaint, happen at two different periods, and the lower owner has already been compensated for the trespass, he cannot afterwards claim relief on the ground of injury from the water. 6 Or where And the owner of the foreshore will not be permitted to re- barrier against ,.,,/• n r -\ .1 sea removed, move shingle therefrom, so as to expose the foreshore to the inroads of the sea. For there is no analogy between the prin- ciples applicable to water pursuing occult courses and_ those applicable to a great visible bank operating as a protection against the visible waves of the sea. 7 And it is the duty of the Crown to preserve the realm from the inroads of the sea ; at whose instance, therefore, a person who proceeds to destroy a natural barrier against the sea may be restrained. 8 T. 34 ; Rylands r. Fletcher, L. E. 3 5 Firmstone v. Wheeley, 2 D. & L. H. L. 330 ; Phillips v. Homfray, 6 Ch. 203. See also Smith r. Kenrick, 7 781 : and see Smith v. Fletcher, L. R. C. B. 560, 564. See, however, Clegg 9 Ex. 64, 65, 67 ; nom. Fletcher v. v. Dearden, 12 Q. B. 576. Smith, 2 App. Cas. 781. 6 See Clegg v. Dearden, u. s. ; Smith 1 See ante, p. 372. v. Kenrick, 11. s., 564. 2 See Goold v. Gt. West. Coal Co., ~> A.-G. r. Tomline, 14 Ch. D. 63. 2 De G. J. & S. 610, et scq. s A.-G. v. Tomline, 12 Ch. D. 214 ; 3 lb. 14 Ch. D. 58. 4 7 C. B. 515 ; ante, p. 404. PART C, SECT. 2.] ESCAPE OF WATER. 407 (y) Non-natural User of Property — No Damage. Not merely is a man, who uses his property according to the Freedom from ........ liability, natural mode of its user, generally free from liability in respect w here user of any ensuing damage to his neighbour. Where no actual ™j"™ urd ' damage has ensued, he is also free from liability, although his damage ensues. user be non-natural. 1 And, in such a case, his merely temporarily intercepting, as Intercepted • • i water- he is entitled to intercept, 3 water, which would otherwise have West Cumb., percolated into his neighbour's property, does not lay him under K °£ yo °; v ' an obligation to prevent such water from afterwards reaching that property. Thus, in West Cumb., &c, Co. v. Kenyon? water in a higher mine, which had previously found its way into certain old workings thereof, and had thence percolated into the lower mine, was tapped by and collected into a shaft sunk by the higher owner. The higher owner then made a borehole at the bottom of the shaft. It was admitted, that he did not do so in due course of mining, but only for the purpose of getting rid of the water. The effect of the borehole was to return the Avater to the old workings ; and it thence percolated into the lower mine in the same way in which it would have done, if neither the shaft nor the borehole had been made. In fact the higher owner's operations had no effect whatever beyond the limits of his own property ; and they did not cast upon the lower mine any burden, which that mine had not previously borne. The higher owner was held free from liability. i (8) Non-natural User of Property— Damage. Where however, as the result of a man's non-natural mode Liability where ' ' , . user non- of user, water, which had previously found its way by gravita- na tural, and tion and percolation into his neighbour's mine, finds its way in damage ensues. greater quantities, a cause of action arises. 5 And even where i See West Cumb., fee., Co. v. Ken- 4 Reversing id., 6 Ch. D. 773. yon, 11 Ch. D. 782. 5 See Smiths Kenrick, 7 C. B. 561 ; 2 On the principle of Acton v. Blun- Rylands v. Fletcher, L. R. 3 H. L. 339 ; dell 12 M & W. 324, ante, p. 388. West Cumb., .fee, Co. v. Kenyon, 11 Ch. 3 11 Ch. D. 782. D. 782, 783, 785-790. 408 NEIGHBOURS — WATER — [CHAP. XVII. it finds its way by a different channel or at a different time, although not in greater quantities, liability may be incurred. For the result may be to throw upon the neighbour's mine a burden which it had not borne before. 1 To escape liability, where damage ensues, the person who has caused the damage must show, that his operations have been ordinary, reasonable, and proper. 2 If, therefore, he is a higher mine owner, he must show, that lie has acted prudently in the ordinary course of mining. 3 The removal of the surface by a higher owner, by means of which his mine is flooded, may possibly constitute an unreasonable or improper working, so as to give the injured party a remedy, if the removal is contrary to the usual course of working in the district. 4 But it does not do so on the mere ground, that it is in contravention of a covenant entered into by the higher owner with a third party. 5 Tapping a A higher owner will not be justified in incautiously tapping a stream- t d gQ i nun dating the country below. 6 And if a higher Crompton v. ' _ , . Lea. owner commences to sink a shaft for the purpose ot completing the working out of his mines ; and the necessary result of allowing him to proceed will be, that the bed of a river will fall in, and the river flow into his workings, and thence into the lower owner's mine ; he will be restrained. An act certain to do irretrievable damage to the lower owner, and to endanger the lives of those in his employment, and to bring no advantage whatever to the higher owner, cannot be considered an ordinary, reason- able, and proper mode of working the higher mine. 7 And in none of such cases can the higher owner excuse himself on the ground, that the lower owner by previous workings in his own O 1 West Cumb., &c. Co. r. Kenyou, of the covenants of the lease was, that, 11 Ch. D. 782. 783, 785—790. when the mines were worked out, he 2 Smith r. Fletcher, L. R. 9 Exch. should restore the surface. This cove- 61, 66, 67 ; Crompton v. Lea, 19 Eq. nant he did not perform, and the per- 129 • Fletcher r. Smith, 2 App. Cas. fonnance of it would have prevented 781 ; Hurdman r. N. E. R. Co.. 3 C. P- the injury complained of. p i74_ 6 Scots Mines Co. v. Leadhills 3 Scots Mines Co. r. Leadhills Mines Co., 34 L. T. 34. Mines Co., 34 L. T. 34. 7 Crompton v. Lea, 19 Eq. 115, 125, 4 Wilson v. Waddell, 2 App. Cas. 126, 127, 129. The action was ulti- 95 ioo. mately dismissed : see W. N. 1876. 5 lb. The higher mine owner there p. 266. held his property upon lease, and one PART C, SECT. 2.] ESCAPE OF WATER. 400 mine has removed minerals, which would otherwise have acted as a barrier against the water. 1 A fortiori a higher owner will be liable for damage, if his Negligent or malicious operations. operations have been negligent or malicious. 2 b. Natural Rights — Gravitation — Water present Artificially. (a) No Statutory Powers. If a person, upon whose land it would not naturally come, Prima fade brings upon his land, of his own mere will, and for his own water present ° purposes, and collects and keeps there, so dangerous an element as artjficiaiiy— water, he does so at his peril ; and he is, prima facie, answerable Fletcher. for all the damage, which may result from its escape. Thus, in Rylands v. Fletcher, 3 the defendant constructed, for the pur- poses of a mill, a reservoir on a piece of land, adjoining which the plaintiffs were working mines. The plaintiffs had pre- viously worked their mines up to a spot, where there were cer- tain old passages of disused mines. Those passages were con- nected with vertical shafts, which communicated with the land above, which had been out of use for many years, and which were apparently filled with earth and marl. Shortly after the water was introduced into the reservoir, it broke through some of the old shafts, flowed through the old passages, and flooded the plaintiffs' mine. The defendant was held liable. 4 And the result would have been the same if the disused mines had them- selves been worked by the plaintiffs. 5 And where a higher owner, for his own convenience, diverts Substitution of the course of a stream, he must take care that the substituted course f course shall be capable of conveying off the water, which stream - mio-ht flow into it from all such floods and rainfalls as might reasonably be expected to happen in the locality. 6 And his 1 Crompton v. Lea, 19 Eq. 130. Fletcher v. Rylands, L. R. 1 Exch. 2(55 2 See Smith v. Kenrick, 7 C. B. 515 ; (see 279, 280) ; which reversed ib. 3 H. Baird v. Williamson, 15 C. B. N. S. & C. 774. See also Dunn v. Birmingham 391 ; Rylands v. Fletcher, L. R. 3 H. Canal Co., L. R. 7 Q. B. 2r.9, 270. Cf. L. 330; Crompton v. Lea, u. •?., 127 ; Humphries v. Cousins, 2 C. P. D. 239. Hurdman v. N. E. R. Co., 3 C. P. D. 5 See Rylands v. Fletcher, L. R. 3 H. 174. L. 342. 3 L. R. 3 H. L. 330. 6 See the dicta in Smith v. Fletcher, 4 See pp. 339, 340, 342 : affirming L. R. 7 Exch. 312, 313 ; 9 ib. 65 ; 410 NEIGHBOURS — WATER — [CHAP. XVII. Liability- irrespective of malice or negligence or unusual user. duty in this respect cannot be affected by the mere circumstance that the cubical capacity of the new course may be equal to or greater than that of the old course ; or by the circumstance that the old course may have been faulty or defective. 1 He will not be allowed, without incurring responsibility, to reproduce in the new course whatever defects existed in the old one. 2 Where a higher owner is liable for an injury which the lower owner may sustain through an escape of water, such liability is wholly irrespective of any question as to malice, or negligence, or unusual or unreasonable user. 3 Statutory freedom from liability — Dunn v. Birmingham Canal Co. (ft) Statutory Poivers. Different considerations may sometimes apply, where the rights and obligations of adjoining owners are to be found within the provisions of an Act of Parliament, which authorizes the construction of works of public utility and convenience. Thus, in Dunn v. Birmingham Canal Co. 4 There the defend- ants' canal was constructed under an Act authorizing them to take land compulsorily ; making compensation for all damage, which might at any time whatsoever be sustained by the execu- tion of their works. The minerals under the canal were reserved to the landowners, who were given the conditional right to work usual in such cases. 3 The plaintiff, who was the owner of mines under the canal, complied with the conditions ; and he then proceeded to work. He worked properly and without negligence ; but knowing, that, as the result of the working, his mines would probably be flooded. The canal was properly constructed, and properly maintained. The effect of the work- ing was, that the strata became displaced ; and the mine was flooded. It was held, that the defendants had acted strictly within the powers given to them by the Act ; that the principle Fletcher v. Smith, 2 App. Cas. 787, et seq. : nom. Smith v. Musgrave, 47 L. J. Q. B. 4. 1 Fletcher v. Smith, ?/. s. 2 lb. : see A.-G. v. Tomline, 12 Ch. D. 228, 229. 3 See Fletcher v. Rylands, 3 H. & C. 789 ; L. R. 1 Exch. 279, 285, 286 ; Rylands v. Fletcher, L. R. 3 H. L. 340, 341, 342; Humphries v. Cousins, 2 C. P. D. 245. . 4 L. R. 7 Q. B. 244 ; 8 ib. 42. 5 Cf. s. 79 of Rail. CI. Act, 1845 cited ante, p. 6 n., which was merely a repetition of previous enactments to a similar effect. PART C, SECT. 2.] ESCAPE OF WATER. 411 of Rylands v. Fletcher 1 did not, therefore, apply ; that their omission to purchase the plaintiff's mines did not amount to an injuria, as they were under no obligation to do so ; 2 and that the plaintiff was, accordingly, without a remedy. 3 It was also Apparently said, 4 that there was an additional fact of itself fatal to the that plaintiff plaintiff. He had known the probable result of his workings, J^^JjJ" and had courted the danger which ensued. But this dictum appears of doubtful correctness. 5 It was further said, that the Immaterial , n ■, i i -ill- ip c ii that compensa- plaintiff could probably have availed himself ot the compensa- t ion clause tion clause which the Act contained. 6 But even if there had exlsted - been no such clause, the defendants would not have been held liable. 7 On similar principles a local authority, who make sewers Pub. Health ►. ^ /• • v i i Act, 1875. under the Pub. Health Act, 1875, are not, prima facie, liable, if the sewage percolates into the subjacent mines. For they are entitled to have the sewers supported by the mines ; 8 and the percolation could only therefore ensue from the wrongful act of the mine owner. 9 Generally however, the principle laid down in Rylands v. But liability J where Wat. CI. Act 1 L. R. 3 H. L. 330 ; ante, p. 409. enjoyed his property : see 283, 284, applies. 2 L. R. 7 Q. B. 262, 273 ; 8 ib. 49, per Hannen, J. No opinion was ex- 51 52. pressed on the point in Exch. Cham. : 3 Cf. Sutton v. Clarke, 6 Taunt. 29 ; see L. R. 8 Q. B. 42. Whitehouse v. Birmingham Canal Co., 6 See L. R. 7 Q. B. 262, 263, 264, 27 L. J. Ex. 25 ; Whitehouse v. Fel- 272, 273 ; 8 ib. 46, 47, 48, 52. See lows, 10 C. B. N. S. 765. It is worth contra. 7 ib. 280, et seq. noticing, that in Dunn v. Birmingham 7 See L. R. 8 Q. B. 47, 48, 51, 52, 53. Canal Co. the Act, which applied, was See also Blyth v. Birmingham Water- the same as that which governed the works Co., 11 Exch. 781 ; Vaughan v. decision in Dudley Canal Co. v. Graze- Taff Vale R. Co., 5 H. & N. 679 ; brook, 1 B. & Ad. 59 (see ante, p. 326). Madras Co. r. Carvetinagarum, 22 VV. Accordingly, while the mine owner was R. 865; Dixon v. Metrop. Bd. 7 Q. held to be without a remedy against B. D. 418. If and so far as Barber v. the canal owners for the flooding of Nottingham, &c, R, C. (15 C. B. N. S. his mines, the canal owners would, in 726) is inconsistent with Dunn v. Bir- the events which had happened, if mingham Canal Co., it must be con- they had sought relief against the sidered to be overruled. It was treated mine owner for draining away their by Mellor, J. (Dunn v. Birmingham canal, have been equally without a Canal Co., L. R. 7 Q. B. 269) as having remedy. proceeded upon the ground of actual 4 See L. R. 7 Q. B. 258, 260, per negligence on the part of the defend. Cockburn, C. J. ants : but see the judgment, 15 C. B- 5 Ex hypothesi, the plaintiff was N. S., at p. 748. merely exercising his lawful rights, 8 See ante, p. 312. without which he could not have . 9 Be Dudley, 8 Q. B. D. 86, 95, 96. 412 NEIGHBOURS — WATER [CHAP. XVII. Or where con' struction or maintenance improper. Fletcher 1 will apply to waterworks constructed under statutory provisions. By. the Wat. CI. Act 2 it is enacted :— " Nothing in this Act or the special Act shall prevent the undertakers from being liable to any action or other legal proceeding, to which they would have been liable for any damage or injury done or occasioned to any mines by means or in consequence of the waterworks, in case the same had not been constructed or main- tained by virtue of this Act or the special Act." 3 And if the rights and obligations of a railway or canal com- pany or other corporation are regulated by an Act of Parlia- ment ; and the company or corporation would, on the principle of Dunn v. Birmingham Canal Co., be in other respects free from liability ; they may become liable, if the works authorized to be executed by them have been constructed 4 or maintained 5 improperly, or contrary to the provisions of their Act. And in all such, cases every fresh damage from a continuance of the wrongful act is a distinct cause of action. 6 No liability, where ris c. Natural Rights— Vis Major— Act of God,dx. Upon the same principle that a man is, primd facie, free from liabilitv, if water escapes from his property to that of his major, or J ' l A act of God, or ne jo-hbour by the mere force of gravitation, he is, ^nma facie, party. ^^ ^^ liability, if the escape is the consequence of vis major? or is the act of God. 8 And a person, from whose property > Ante, p. 409. 2 10 & 11 Vict. c. 17. 3 S. 27. 4 Whitehouse v. Fellows, 10 C. B. N. S. 765 ; Barber v. Nottingham, &c, R. Co., 15 lb. 726. See obser- vations on the latter case in Fletcher v. Rylands, L. R. 1 Exch. 277 ; Dunn v. Birmingham Canal Co., L. R. 7 Q. B. 269 : see also ante, p. 411, n. ". 5 Bagnall v. L. & N. W. R. Co., 7 H. & N. 423 ; 1 H. & C. 544. It was held not to be a claim enforceable under the compulsory clauses of the Act ; the plaintiff not having been injuriously affected by the works, but by the Com- pany's wrongful conduct with respect to them. See observations on this case in Fletcher v. Rylands, it. s., 271 ; Dunn v. Birmingham Canal Co., v. .«., 267, 268, 269. See also Whitehouse v. Birmingham Canal Co., 27 L. J. Exch. 25. 6 Whitehouse r. Fellows, v. s. "i See Fletcher r. Rylands, L. R. 1 Exch. 280 ; Rylands v. Fletcher, L. R. 3 H. L. 340, per Blackburn, J. : see also Carstairs v. Taylor, L. R. 6 Exch. 217 ; Box v. Jubb, 4 Exch. D. 76. 8 See Fletcher v. Rylands, v. s. ; Rylands v. Fletcher, u. s. ; Fletcher v. Smith, 2 App. Cas. 787, 788. Cf. Nichols v. Marsland, L. R. 10 Exch. 255 ; 2 Exch. D. 1 ; Nitro-Phos. Co. v. Lond., &c, Docks Co., 9 Ch. D. 503 ; Dixon v. Metrop. Bd., 7 Q. B. D. 418. PART C, SECT. 3.] DISCHARGE AND ESCAPE. 413 water would otherwise inevitably have escaped by the act of God, does not become a wrongdoer, merely because, in order to prevent or mitigate a calamity, he voluntarily does an act which expedites the escape. 1 A similar principle prevails, where the escape is the act of a third party ; 2 and, a fortiori, where it is due to the neighbour's own default.' 5 And these observations apply even to cases like Rylands v. Fletcher ; 4 where the person sought to be made liable has brought a body of water upon his land, which would not naturally have come upon it. ;) d. Acquired Rights. A right may be acquired as an easement by grant, either Right to pro- . « tection against voluntary or statutory, to protection against the escape of water escape f by gravitation, or its flow in its natural course. 6 But it is dim- ^[ re ™ :iy be cult, if not impossible, to acquire such a right by prescription. For the enjoyment of the right could hardly be free from the objection of precariousness. 7 Sect. 3.— COMBINED EFFECTS OF DISCHARGE AND ESCAPE. Where a mine on a lower level is damaged by an influx of Combined . . effects of dis- water from the higher mine ; and such influx is due to separate charge and and distinct causes, some of which the higher owner is, and esca P e - others of which he is not, under a duty to control ; the higher owner will be liable for so much of the damage as can be attributed to the former causes ; and he will be free from liability for so much as can be attributed to the latter. 8 1 Thomas v. Birmingham Canal Co., The two latter cases were decided 43 L. T. 43."). under r. 19 of sched. 2 of the Forest of - Box r. Jubb, 4 Exch. D. 7(3. Dean " Coal" award of 1841, men- 3 Fletcher v. Rylands, L. R. 1 Exch. tioned post, Chap. XX. d. (y). See, 280; Rylands v. Fletcher, L. R.3H. L. generally, rr. 19 and 18 respectively 340. of schedule 2 of the Coal and Iron 4 L. R. 3 H. L. 330 : see ante, awards of 1841, mentioned ib. See p # 409. tne Waterworks CI. Act, s. 27, cited 5 See Rylands v. Fletcher, u. s., 340 ; ante, p. 412. Fletcher v. Smith, 2 App. Gas. 787, 788 ; 7 See and consider Mason v. Shrews- Box v. Jubb, u. s. bury, Sec, Co., L. R. 6 Q. B. 584. 6 See Smith v. Kenrick, 7 C. B. 515, 8 See Baird r. Williamson, 1 5 C.B.N.S. 564 ; Ross v. Rugge- Price, 1 Ex. D. 269 ; 376 : see also Smith v. Fletcher, L. R. Brain v. Thomas, 50 L. J. Q. B. 662. 9 Ex. 64, 67 ; reversing S. C, 7 ib. 305. 414 NEIGHBOURS WATER DISCHARGE [CHAP. XVII. Previously specified remedies. Ordinary remedies — damages. Water-leave rent. Measure of damages. Injunction. Sect. 4.— .REMEDIES. 1 Sometimes particular remedies are specified by anticipation for the damage which may be sustained by an influx of water ; in such a way that those remedies only are available. Where this is so, care should be taken, that the specified remedies are pursued. 2 Subject to the necessity in proper cases of pursuing specified remedies, a man maybe made liable in damages, who discharges water from his mine upon the property of his neighbour, or drains his mine through the property of his neighbour ; without having the right to do so. 3 Or the injured party may obtain compensation byway of water-leave rent upon all minerals gotten out of the wrongdoer's mine, which have been drained through the land of the injured party. 4 The fact, that the injured party is a lessee with a short term, may affect the measure of damages : either in his favour ; having regard to the probable loss of the mineral which the injury may cause : or in favour of the wrongdoer ; having regard to the contingency, that the injured party may refrain from removing the water, and leave the wrongdoer subject to an action by the reversioner. 5 The injured party will also in general be entitled to an in- junction to restrain the future user. 6 And, for this purpose, it is immaterial that no special injury can be done him by a 1 Cf. the law in the case of road- ways and airways, ante, pp. 378, 379. 2 See Dunn v. Birmingham Canal Nav., L. R. 7 Q. B. 244 ; 8 ib. 42 ; ante, p. 411. Cf. Bagnall r. L. & N. W. R. Co., 7 H. & N. 423 ; 1 H. & C. 544. 3 Haward r. Bankes, 2 Burr. 1114; Firmstone v. Wheeley, 2 D. & L. 203 ; Baird v. Williamson, 15 C. B. N. S. 376 ; Rylands v. Fletcher, L. R. 3 H. L. 330; Craven v. Kaye, Set. 205; Fletcher v. Smith, 2 App. Cas. 781. 4 See Plant v. Stott, 21 L. T. N. S. 106 ; Jegon v. Vivian, 6 Ch. 742 ; Phil- lips v. Homfray, ib. 770. For the form of an inquiry, which will be made with a view to providing such compensation, see Phillips v. Homfray, v. $., 776. The L. C. refused (p. 781) on appeal, but chiefly on the ground of expense, to direct the inquiry. 5 See Smith v. Fletcher, L. R. 7 Exch. 313. 6 Beaufort v. Moms, 6 Ha. 340 ; Westminster, &c, Co. v. Clayton, 36 L. J. Ch. 476, 478; Lomax r. Stott, 39 ib. 834 ; Jegon v. Vivian, u. .v. ; Phillips v. Homfray, w. s. ; Craven v. Kaye, Set. 205 ; Eardley v. Granville, 3 Ch. D. 826. For the form of an in- junction to restrain an improper user for drainage purposes, see Hilton r. Woods, Set. 206. TART C, SECT. 4.] AND ESCAPE — REMEDIES. 415 continuation of the user. 1 And if a man makes an aperture in his neighbour's land for the purpose of draining his mine through it ; without having the right to do so ; he may, in general, be compelled by mandatory injunction to stop such aperture up. 2 The mandatory injunction may be directed even on interlocutory application. 3 And it may have effect given to it under the superintendence of a special referee. 4 The injured party may also treat the invasion of water as a Abatement, nuisance ; and abate it accordingly. 5 And although, if there are two ways of abating it, he must, in general, choose the less mischievous, he need not do so, if some injury would be thereby done to an innocent third party, or to the public. 6 And he does not become liable to the wrongdoer, merely because, in order to prevent that injury, he trespasses upon the land of the third party. 7 A litigant, who has a prima facie case, may usually obtain, Inspection, on terms, on interlocutory application, liberty to inspect his neighbour's property. 8 1 See and consider Powell v. Aikin, Walker v. Fletcher, u. ■■?. 4 K. & J. 343. s See Roberts v. Rose, 3 H. & C. 2 See Powell v. Aikin, 4 K. & J. 343 ; 162 ; L. R. 1 Exch. 82, 89, 90. Plant v. Stott, 21 L. T. N. S. 100 : see f > lb. also Walker v. Fletcher, 3 Bli. 172 n., 1 lb. 178 n. 8 See ante, pp. 383, 384. For forms 3 See Walker v. Fletcher, u. s. ; of orders to inspect, see post, Chap. Westminster, &c, Co. v. Clayton, 36 XXII., Sect. 2,/. A person, who con- L. J. Ch. 476, 478. For the form of veys water into a mine, is sometimes such injunction, see Westminster, &c, guilty of felony ; and punishable ac- Co. v. Clayton, u. s., p. 478, Set. 205. cordingly : see lb., Sect. 4, (a). 4 See Craven v. Kaye, Set. 205. Cf. CHAPTER XVIII. CORNISH AND DEVONSHIRE COURTS, RIGHTS, AND CUSTOMS. 1 Sect. 1.— STANNARIES COURTS. a. Jurisdiction and Proceedings. (a) Generally — Judge and Officers — Nature of Jurisdiction. Generally. The Stannaries Court has jurisdiction through the counties of Cornwall and Devon ; 2 and it is peculiar to those counties. The Court for Cornwall is usually held at Truro, 3 and that for Devon at either Plymouth, Devonport, or Stonehouse; 4 and such Courts are held at least four times in the year. 5 The Court may moreover be held at any place within the Stannaries for the purpose of hearing witnesses and takiug evidence. 6 And, in some cases, directions may be given, that petitions to wind up a company shall be heard by the Court in London or Westminster, 1 For the Cost-Book System, and 4, c. 42 ; 6 k 7 Will. 4, c. 106 ; 2 k 3 Cornish and Devonshire Companies, Vict. c. 58 ; 7 & 8 Vict. c. 19 ; 7 k 8 see the next Chapter. Vict. c. 65 ; 7 & 8 Vict. c. 105 ; 9 & 10 - See 6& 7 Will. 4, c. 106,s. 21; 18 & Vict. c. 95 (s. 141); 11 k 12 Vict. c. 19 Vict. c. 32, s. 32. Originally the Stan- 83 ; 18 & 19 Vict, c. 32 ; Ord. in Counc. naries were districts paying royalty on 24th June, 1856; Gen. Ord. 20th tin to the Prince of Wales. There March, 1857; Comp. Act, 1862 (25 & were always Stannaries in Devon as 26 Vict. c. 89) ; 28 & 29 Vict. c. 99 well as Cornwall ; but before 18 & 19 (s. 6) ; 32 k 33 Vict. c. 19 ; Jud. Act, Vict. c. 32 there was no Court of Stanna- 1873(36 &37 Vict, c. 66); Gen. Orders ries except the Court in Cornwall, with and Rules, March, 1876. Further Or- a jurisdiction limited to that county : ders and Rules may be made under the see South Lady Bertha Co., 2 J. & H. provisions of 18 k 19 Vict. c. 32, s. 23 ; 380, 381. The jurisdiction of, and the 32 & 33 Vict. c. 19, s. 43. procedure in, the Stannaries Court are 3 6 & 7 Will. 4, c. 106, s. 21. regulated by the ancient charters 4 18 & 19 Vict. c. 32, s. 33. granted to the tinners (as to which see 5 6 & 7 Will. 4, c. 106, s. 21 ; 18 & App. to Smirke's Rep. of Vice v. Tho- 19 Vict. c. 32, s.33. mas), and by the following Acts and 6 IS k 19 Vict. c. 32, s. 21. Orders :— 16 Car. I. c. 15; 4 & 5 Will. SECT. 1.] STANNARIES COURTS. 417 or in other parts of England. 1 And, in all cases, whether in Cornwall or Devon, or elsewhere, the Court may make such order by way of injunction or otherwise, as the nature of the case may require. 2 And, during vacations, 3 the Court may grant injunctions in any part of England. 4 The jurisdiction is principally exercised by the Vice-Warden of the Stannaries; 3 or, in case of his illness or accidental absence, by a Deputy. It is, in some respects, exercised by the Registrar. 7 The jurisdiction is, so far at least as respects Cornwall, an ancient immemorial jurisdiction ; and it has been recognized as such by various ancient charters granted to the tinners of Cornwall. 8 Of these the charter of 33 Ed. 1 is perhaps the most striking ; according to which the working tinner in the Stannaries had (except in cases respecting land, life, or limb) the privilege of being sued only in the Stannary Courts, and the Warden or Vice-Warden had authority to hold pleas ac- cordingly. 9 The Court is a court of record ; 10 and it possesses both a common law and an equity side. 11 Subject to the difference in the questions in respect of which they may be Judge and Ollicers. Nature of jurisdiction- generally. 1 Comp. Act, 1862, s. 83 ; 32 & 33 Vict. c. 19, s. 38. 2 6 & 7 Will. 4, c. 100, s. 17 ; 18 & 19 Vict. c. 32, s. 32. Where there must be a hearing or an argument, it is not the practice to make an order except by consent, or on the voluntary attend- ance of the parties or their agents : see Troc. in Stan., p. 254, n. (a). 3 As to vacations, see G & 7 Will. 4, c. 10(5, s. 17 ; 32 & 33 Vict. c. 19. s. 42. 4 32 & 33 Vict. c. 19, s. 42. 5 See 6 & 7 Will. 4, c. 106, ss. 1, 2, 4, 6, 7. As to his appointment, qualifica- tions, and disabilities, see ss. 1, 2, 37, 38 ; 18 & 19 Vict. c. 32, s. 29. 6 See 32 & 33 Vict. c. 19, s. 39. ' As to his appointment, qualifica- tions, and disabilities, see G & 7 Will. 4, c. 106, ss. 22, 37 ; 32 & 33 Vict. c. 19, s. 39. As to a temporary registrar, see 32 & 33 Vict, c. 19, s. 40 ; the other offi- cials, 6 & 7 Will. 4, c. 106, ss. 24. 36 ; 1 1 & 12 Vict. c. 83, s. 1 1 ; 18 k 19 Vict. c. 32, s. 34 ; salaries, 6 & 7 Will. 4, c. 106, ss. 25, 26, 28, 29, 38 ; 2 & 3 Vict, c. 58, s. 1 ; 18 & 19 Vict. c. 32, ss. 25,27,34, 36, 38; Comp. Act, 1862, s. 1 72 ; 32 & 33 Vict. c. 19, ss. 41, 44 : see also 6 & 7 Will. 4, c. 106, ss. 27, 30, 31, 38. Actions against officers of the court must be commenced within three months, and short forms of pleadings must be admitted in such actions : 11 & 12 Vict. c. 83, s. 12. 8 For these charters, see the App. to Smirke's Rep. of Vice v. Thomas. 9 See Smirke's Rep. of Vice v. Tho- mas, App. p. 14. 'o 6 & 7 Will. 4, c. 106, s. 21. 11 See the preamble of 6 & 7 Will. 4, c. 1 06 ; Vice v. Thomas, Smirke's Rep. ; 6&7 Will, i, c. 106,s.2. It was formerly considered to be a court of law, but not a court of equity : Trelawny v. Wil- liams, 2 Vern. 483 ; Hall v. Vivian, reported in Smirke's Rep. of Vice r. Thomas, 37 ; Oppy v. De Dustanville, ■ib. 38. See, generally, Vice v. Thomas, v. .v., 95, 102. 418 STANNARIES COURTS. [cHAP. XVni. exercised, the general common law and equity jurisdictions are concurrently administered. 1 General com- The general common law jurisdiction in Cornwall is exercised diction W in respect of all personal actions in which one or both of the parties are miners under any of the following conditions : — (1.) Where a miner sues a person not a miner for any cause of action arising within the Stannaries; or touching mines of metallic minerals in the Stannaries ; or adventurers in such mines. (2.) Where a person not a miner sues a miner for any such cause of action. (3.) Where a miner sues another miner for any transitory cause of action, whether arising in or out of the Stannaries, and whether it relates to mines and adventures or not. 2 And, for the purpose of determining the jurisdiction, all persons are considered miners when and so long as they are really engaged in searching for or working metallic minerals within the Stannaries, or in making the produce merchantable ; whether they are labourers, agents, or adven- turers. 3 The general common law jurisdiction in Devon is exercised in respect of questions, in which miners in Devon are concerned ; but only in causes and in respect of matters relating to mines. 4 General equit- The general equitable jurisdiction is exercised in respect of tion. questions relating to tin mines, lead mines, copper mines, and all other metals and metallic minerals in Cornwall and Devon. 5 Non-metallic Although non-metallic minerals are not, of themselves, within the cognizance of the Vice-Warden, yet, wherever any mine is worked within the Stannaries by the same adventurers both for 1 See Ord., March, 1876. v. Taylor (7 Mod. 103), it was stated, 2 See 6 & 7 Will. 4, c. 106, ss. 7, 41 ; that there was no jurisdiction, where Proc. in Stan. (185G), Introd. Notice, the plaintiff was not a tinner. But 10. The jurisdiction was formerly see, as to these cases, Proc. in Stan, confined to matters in which tin or (1856), Introd. Not. 14. tinners were concerned : see 16 Car. 1, 3 Proc. in Stan. (1856), Introd. Not. c. 15, s. 1 ; preamble of 6 & 7 Will. 4, 13. c. 106 ; South Lady Bertha Co., 2 J. & 4 IS & 19 Vict. c. 32, s. 32. H. 380,381. In Adams v. Stannaries 5 6&7 Will. 4,c. 106, ss. 4,41 ; 18& 19 (Cro. Car. 333), it was stated, that the Vict. c. 32, s. 32. It was formerly con- jurisdiction was only in respect of tin fined to matters in which tin or tinners matters, and where both or one of the were concerned : see 16 Car. 1, c. 15, s. litigants was a tinner ; and in Reignol 1 ; preamble of 6 & 7 Will. 4, c. 106. minerals. SECT. 1.] STANNARIES COURTS. 419 metallic and for non-metallic minerals, the entire mine is within his cognizance. 1 (j3) Proceedings. The common law jurisdiction is exercised in actions, and Actions and in suits commenced by plaint. Actions, properly so called, are commenced and prosecuted in a manner, and subject to rules of pleading and procedure, very similar to those applicable to actions in the High Court. 2 Actions for debt or damages not exceeding £50 may be prosecuted summarily by plaint. 3 They are commenced by entering a plaint in writing, and taking it to the Vice- Warden's secretary ; who thereupon delivers to the plaintiff a summons requiring the defendant to appear and answer. 4 An infant may sue by plaint for wages, piece-work, or work as a servant. 5 The defendant, within a prescribed time, may file a demurrer or plea to the jurisdiction, and give the plaintiff notice. Or, if he wishes to raise certain special defences, he may give the plaintiff notice of his intention. But he need not, in other cases, unless the Vice- Warden otherwise orders, file or give any plea or notice. 6 The defendant may have relief against third parties under similar circumstances to those provided for in the Jud. Acts and Orders. 7 Actions by plaint may be tried by a jury of five persons. 8 The 1 18 & 19 Vict. c. 32, s. 1. Plumbago, or black lead, was by this sect, declared to be a metallic mineral. " Mine " in 6 & 7 Will. 4, c. 106, means any mine, work, or adventure, wherein or con- nected with which metals or metallic minerals are worked : s. 44. " Mine " or "mineral" in 18 & 19 Vict. c. 32, means, prima facie, metallic mine, or metallic mineral : s. 2. 2 Orel. Marcb, 1876, tit. Actions, O. 1, r. 1 : see this title generally. For forms of proceedings, see Schedule of Forms. As to service of process and substituted service, see 18 & 19 Vict. c. 32, ss. 6, 7, 8 ; 32 & 33 Vict. c. 19, s. 31 ; Ord. March, 1876. tit. Actions, Oo. 7, 8, 9. For actions respecting com- pensation and costs, where the Duke of Cornwall exercises his right of entry on lands, see ante, p. 279. 3 18 & 19 Vict. c. 32, s. 16. 4 For the form of the plaint and summons, see Ord. March, 1876, tit. Suits commenced by Plaint, 0. 1, rr. 1,2. 5 0. 2 : see 0. 3. 6 Oo. 7, 8. " 0. 9. 8 18 & 19 Vict. c. 32,8.16. Cf. 11&12 Vict. c. 83, s. 7. Permission to prose- cute by writ instead of plaint may be granted in a proper case : Ord. March, 1876, tit. Suits comm. by Plaint, 0. 18, r. 2. See, as to service of the plaint and summons, 0. 1 ; parties to plaints, 0. 2 ; parties under age, 0. 3 payment of money into court, 0. 4 inspection, 0. 5 ; discontinuance, 0. 6 special and other defences, Oo. 7, 8 particulars of demand, 0. 10 ; security for costs, 0. 11 ; trial, 0. 12 ; costs, 0. E E 2 420 STANNARIES COURTS. [ciIAP. XVIII. Bills of Exchange Act, 1855, applies to the Stannaries Court. 1 Trials may be had either before the Vice- Ward en, or before the Vice-Warden with a jury. 2 The Vice- Warden may direct and try issues of fact. 3 He may postpone or adjourn trials ; 4 and may grant new trials. 5 A rule of Court may be enforced by making it a rule of a superior Court. In certain cases causes may be removed to the Queen's Bench Division. 7 Pursers' and Pursers' suits and creditors' suits 8 are part of the equitable re x r8sul 'jurisdiction. A purser's or creditor's suit is instituted by petition, addressed to the Vice- Warden, and entitled of the Stannaries of the county or counties in which the mine or works of the company to which it relates are situate. 9 The petition is taken to the Vice-Warden's secretary ; who delivers to the petitioner a summons requiring the defendant to appear and answer. 10 The defendant, thereupon, within a prescribed time, may deliver a demurrer or plea to the jurisdiction, or an answer; 11 and the plaintiff, within a further prescribed time, may deliver a replication. 12 An order against a member for payment of a debt due by the company in question may be enforced by a sale of the defaulter's share. 13 Several adven- turers may be joined as defendants in one purser's suit ; and 14 ; amendment, 0. 15 ; interpleader, Plaint, 0. 12, r. 9. See, in case of the O. 17. And see, as to forms of pro- illness or accidental absence of the ceedings, Sched. of Forms. Vice-Warden, 32 A: 33 Vict.c. 19, s. 39. 1 Ord. in Counc, 21 June, 1856. See, 5 6 & 7 Will. 4, c. 10(5, ss. 8, 16 ; 2k 3 as to the form of proceedings, and as Vict. c. 58, s. 5. See Ord. March, 1876, to costs, Gen. Ord., 20 March, 1857. tit. Actions, O. 38; tit. Suits comm. 2 Ord. March, 1876, tit. Actions, by Plaint, O. 12, rr. 12, 14. 0. 35, r. 1 ; tit. Suits comm. by Plaint, 6 6 A: 7 Will. 4, c. 106, s. 12. 0. 12. See, as to jurors and juries, 6 k ' S. 42. 7 Will. 4, c. 106, ss. 16, 32, 33, 34, 35 ; 8 They are properly speaking ac- 2 & 3 Vict. c. 58, s. 2 ; 11 k 12 Vict. c. 83, tions : see Ord. March, 1876, tit. Purs. s. 8 ; 18 & 19 Vict. c. 32, s. 35. A special and Cred. Suits. They are applicable jury cannot, apparently, be impanelled to cost-book companies, and will be f ur- except by consent : see Proc. in Stan. ther referred to in the next chapter : p. 262, n. (b). Jurors attending are see Sect. 2, c. exempted from attendance at sessions : 9 For the form of the petition and 2&3 Vict.c. 58, s. 2 ; 18 & 19 Vict. c. 32, summons, see Ord. March, 1876, tit. s. 35. Purs, and Cred. Suits, 0. 1 ; and 3 6 & 7 Will. 4, c. 106, s. 16. He Sch. of Forms, has power to give the costs of trying 10 0. 1, r. 10. an issue : Palmer's case, 7 Ch. 288. u Oo. 4, 5. 4 Ord. March, 1876, tit, Actions, >- 0. 6. 0. 35, r. 3 ; tit. Suits comm. by 13 6 & 7 Will. 4, c. 106, s. 18. SECT. 1.] STANNARIES COURTS. 421 the Vice- Warden may make one decree for payment, and one order for sale ; and payment may be enforced by separate process. 1 In creditors' suits, where several adventurers are sued, or several creditors sue, separately, the suits maybe consolidated. 2 Where, in a creditor's suit, a claim is made in respect of goods or the proceeds thereof, sold or intended to be sold, by any landlord for rent or other distrainable demand, or by any other person not being a party to the suit, the Vice- Warden or the Registrar may adjudicate upon such claim by interpleader. 3 And the adjudication is final, and has the force of judgments or decrees. 4 The Registrar is the proper person to make sales under any decree or order of the Court in pursers' or creditors' suits. 5 And, in making such sales, he may act without a license ; and without being liable to duty. 6 The Vice- Warden may also, under the equitable jurisdiction, Specific per- grant specific performance of contracts for sale ; and make declarations of declarations of forfeiture for the non-working of setts. 7 Upon a JjJjSj^T declaration of forfeiture being made for non-working ; or upon a possession, sett or lease being determined for breach of condition or other- wise ; the Vice-Warden has jurisdiction to entertain proceedings for recovery of possession of the mine in question, being within the Stannaries ; and of buildings, machinery, works, and waters, annexed thereto or occupied therewith. 8 But he cannot ad- judicate upon any claim touching the freehold or inheritance of any person except by consent. 9 The Vice- Warden may also, under the equitable jurisdiction, Injunction, prohibit by injunction the working of any mine in a manner 1 18 & 19 Vict. c. 32, s. 4. fixed up at the Account House of the 2 S. 5 : see also Orel. March, 1876, tit. mine in question a notice that he has Purs, and Cred. Suits, 0. 16. r. 10. done so : O. 2, r. 7 : see also 0. 10, r. 6. As to service of the petition and sum- 3 18 & 19 Vict. c. 32, s. 11. mons in pursers' and creditors' suits, 4 S. 12. See s. 13 as to staying ac- see 0. 2 ; appearance, 0. 3 ; hearing, O. tions, where an interpleader is pending. 7 ; evidence, O. 8 ; discovery, 0. 9 ; de- 5 Ord. March, 1876, tit. Purs, and cree, 0. 10 ; amendment, O. 12 ; abate- Cred. Suits, 0. 16. ment and revivor, 0.13 ; injunction, 0. 6 Comp. Act, 1862, s. 68. The As- 14; and proceedings upon orders of sale, sistant Registrar has the same privi- 0. 16. And see, as to forms of proceed- lege, ib. ings, Sch. of Forms. The plaintiff in 7 Proc. in Stan. (1856), Int. Not. 26. a creditor's suit is obliged, immediately 8 18 & 19 Vict. c. 32, s. 15. after filing his petition, to cause to be 9 Ss. 14, 15. 422 STANNARIES COURTS. [CHAP. XVIII. contrary to custom or covenant. 1 And the Registrar may, on the application of a creditor or member, issue injunction orders in creditors' suits ; and forbid the sale of setts, leases, machinery, or other effects, on the usual allegation of urgency ; or issue such orders in other cases of like urgency, or imminent waste or damage; and may suspend or dissolve the order; subject, however, to reconsideration by the Vice-Warden. 2 The juris- diction to grant in vacation injunctions in any part of England 3 may be exercised by the Registrar. 4 Rectification of And, under the equitable jurisdiction, the Vice- Warden may wSfung^up. summarily rectify the register of a compauy. 5 And he may wind up a company on petition, as in the Chancery Division of the High Court. 6 And he has a special aud wide jurisdiction inci- dental to a winding up. 7 The Registrar may, with the sanction of the Vice-Warden, when a winding-up order is made, and no official liquidator is appointed, act as official liquidator. 8 But he need not give security ; nor is he entitled to remuneration ; nor is he liable to penalties. 9 Special juris- The Vice-Warden has a special jurisdiction to decide questions arising out of the rights of working given to the Duke of Cornwall under the Act 7 & 8 Vict. c. 105. 10 Causes pending before a County Court judge within the Stannaries touching the customs of mining ; n or cost-book mines ; 13 or the effect and operation of setts, or licenses ; or contracts for the sale and transfer of shares in mines ; or tin-bounds ; u may be remitted for trial before the Vice-Warden. 13 The Vice-Warden may by 1 S. 15. 14, 13; termination of winding-up, ■ 32 & 33 Vict. c. 19, s. 37. 0. 16 ; costs, 0. 18 ; and appeals, 3 Ante, p. 417. 0. 19. And, as to forms, see Sch. of 4 32 & 33 Vict. c. 19, s. 42. Forms. 5 Comp. Act, 1S62, s. 35. " See next Chapter, Sect. 5, b. 6 Ss. 79, 81. See, as to the petition, 8 32 & 33 Vict. c. 19, s. 33. service, and hearing, Ord. March, 1876, 9 lb. tit. Wind. Comp., 0. 2 ; as to the order, 10 See ante, pp. 277 et seq. See also O. 3 ; official liquidator. 0. 4 ; proof of 8 & 9 Vict. c. 1 IS (Inch), s. 18 ; 26 & 27 debts, 0. 5 ; list of contributorics. 0.6 ; Vict. c. 49 (Duchy Manag.), s. 8. order of payment of debts or calls, 0. 7 ; u See infra, Sect. 3, Sect. 4. payment of moneys, 0. 8 ; investment, 12 See next Chapter. O. 9 ; admission of documents, 0. 11 ; 13 18 & 19 Vict. c. 32. s. 17. See Ord. appearance, 0.12; service of summons, March, 1876, tit. Suits comm. by notice, &c, Comp. Act, 1862, s. 68 ; 0. Plaint, 0. 16. 13 ; witnesses and affidavits, Oo. SECT. 1.] STANNARIES COURTS. 423 consent refer proceedings and disputes to arbitration ; and he may himself act as arbitrator. 1 The Vice-Warden has, consistently with the provisions of the Miscellaneous Comp. Act, 18G2, the same jurisdiction and powers in the case ccdure. 8 ° Pr ° of companies registered under that Act as he has in the case of unincorporated companies. And, for the purpose of giving fuller effect to such jurisdiction, in all actions, suits, or proceedings in the Court, all process issuing thereout, and all orders, rules, demands, notices, warrants, and summonses, required to be served on any company, whether registered or not. or on any member or agent thereof, may, without any special order, be served in any part of England ; or may, by special order, be served in any part of Great Britain, or the adjacent islands. 2 And, generally, service of subpoenas on witnesses is good in any part of England or Wales ; and may be enforced by process from the Queen's Bench Division, if the expenses be tendered. 3 Oaths may be administered, and affidavits taken by the Registrar, or by com- missioners ; 4 and affidavits, affirmations, and declarations, are sometimes available, although not sworn, made, or taken, by or before a commissioner of the Court. 5 The Registrar may make orders for amending pleadings ; and may determine applications for further time ; and may make various other interlocutory orders ; subject to appeal to the Vice-Warden. 6 The Registrar is the proper person to tax costs. 7 All applications in Court of whatever kind in a suit are made by motion. 8 But proceedings before the Registrar are by summons. 9 1 18 & 19 Vict. c. 32, s. 20. rected to be taxed by the Taxing Mas- 2 Comp. Act, 1862, s. 68. ter of the Court of Chancery. See also 3 6 k 7 Will. 4, c. 106, ss. 9, 10. West Jewell, &c, Co., Set. 1601. 4 4 & 5 Will. 4, c. 42, s. 1 ; 2 & 3 8 See, as to motions, Ord. March. Vict. c. 58, s. 6 ; Ord. March, 1876, tit. 1876, tit. Miscell., 0. 5. Miscell., 0. 6. 9 0. 10, r. 1. See 0. 10, generally, 5 32 & 33 Vict. c. 19, s. 27. As to for proceedings before the Registrar, enrolments and copies being evidence, As to costs, see 0. 12. The Registrar see 11 & 12 Vict. c. 83, s. 6. has also certain duties to perform un- 6 18 k 19 Vict. c. 32, s. 19; Ord. March, der 7 & 8 Vict. c. 105, relating to mines 1876, tit. Purs, and Cred. Suits, 0. and minerals belonging to the Duchy 12. As to the practice on such ap- of Cornwall : see ss. 59, 61,62,63,64; peals, see tit. Miscell., 0. 11. ante, pp. 278. 279. The seal (6 & 7 ~> Tit. Miscell., 0. 12. In Palmer's Will. 4, c. 106, s. 19) of the Court, and case, 7 Ch. 288, which was an appeal the signature of the Registrar, arejudi- in a winding-up, the costs were di- cially noticed by all courts and judges 424 STANNARIES COURTS. [CHAP. XVIII. (y) Concurrent and Exclusive Jurisdiction. Personal In personal actions 1 the jurisdiction of the Stannaries Court and of the High Court has been stated to be concurrent.- Bat the statement is not supported by any decision ; and it is conceived, that, if in the High Court privilege were pleaded, the defendant might still rely on the charter of 33 Ed. 1. ; 3 so as to oust the jurisdiction. 4 The jurisdiction of the Stannaries Court and of the County Courts in personal actions has, however, been decided to be concurrent. 5 The County Courts Act, 9 & 10 Vict. c. 95, enacts, that all pleas of personal actions, where the debt or damage claimed is not more than £20, may be holden in the County Court ; and that no privilege, except as thereinafter excepted, shall be allowed to any person to exempt him from the jurisdiction of any Court holden under the Act/ No doubt, it also enacts, that "nothing in this Act contained shall be construed to affect the Courts of the Lord Warden or of the Vice-Warden of the Stannaries of Cornwall ; but this pro- vision shall not be deemed to prevent the establishment of any Court under this Act within the said Stannaries, or to limit or affect the jurisdiction of any Court so established under this Act." 7 But the latter enactment only saves the Stannaries Courts, and not the personal privilege of the tinners. 5 General equity As respects the Stannaries Court and the High Court, the jun s ic ion. g enera i equity jurisdiction 8 of the Stannaries Court appears, so far as it goes, to be exclusive ; 9 and, so far as it does not go, the High Court may be resorted to. 10 As respects the Stannaries Court and the County Courts, there is an express enactment, precluding County Court judges from entertaining jurisdiction in England : Comp. Act, 1862, ss. 6S, carrow, 13 Q. B. 154 ; IS & 19 Vict. c. 125. None bat barristers and solicitors . 32, s. 32. can practise in the Court: see 6 & 7 5 Newton v. Nancarrow, 15 Q. B. Will. 4, c. 106, s. 20. See, as to change 144. of solicitors, Ord. March, 1876, tit. 6 Ss. 58, 67. Miscell., O. 9. A list of fees must be "> S. 141. hung up : 6 k 7 Will. 4, c. 106, s. 33. s g ee anft ^ pp 42 u. 421. 1 See ante. pp. 418. 419. 420. 9 Batten, 14. See Trelawny v. Wil- - See Batten on Stan. Act, 1869, Hams, 2 Vera. 483 ; Dan. Ch. Pr.. P- 14. 532. See, however, Chester 0. Spargo, 3 Ante, p. 417. IS L. T. N. S. 314. 4 See and consider Newton v. Nan- l0 Batten, 14. SECT. 1.] STANNARIES COURTS. 425 in any case to which the equitable jurisdiction of the Stannaries Court extends. 1 The jurisdiction to summarily rectify the register of a company, 2 Rectification of where a name has been improperly entered or omitted, may be reglbtcr - exercised by a judge of the High Court, or by the Vice-Warden, at the option of the applicant. 3 The option has been apparently given, because it was considered desirable, that, for the remedy of a wrong of a very peculiar kind, the greatest opportunities should be afforded, and as many doors as possible opened. 4 And the mere fact, that some of the objects of a company established for working within the district of the Stannaries are to be carried out beyond that district, does not exempt the company from the Stannary jurisdiction; at all events so far as relates to the working within the district. 5 The Stannaries Court is the proper Court for winding up a Winding-up. company 6 "engaged in working" mines within and subject to the jurisdiction ; unless the Vice-Warden certifies, that the company would be more advantageously wound up in the Chan- cery Division. 7 The reason why concurrent jurisdiction has not been given in the latter case to the High Court is that questions may arise requiring local knowledge or local evidence. 8 How- ever, the words " engaged in working " mean " are or have been engaged in working ", or " now or formerly engaged in working " ; and they do not apply to a case where a company, although they have purchased a mine within the jurisdiction, have not begun to work it. 9 A fortiori, the words "engaged in working" do not apply, where such a company are authorized by their memorandum of association to purchase mines in " Cornwall or elsewhere in England." l0 i 28 & 29 Vict. c. 99, s. 6. For the ' Comp. Act, 1862, p. 81. In Walk- practice in case of demurrers to the ham United Mines, W. X. 1882, p. jurisdiction, see 18& 19 Vict. c. 32, s. 18 ; 134, the Vice- Warden refused his cer- Ord. March, 1876, tit. Actions, 0. 21, r. tificate. 4 ; tit. Purs, and Cred. Suits, 0. 4. 8 See Penhale, &c., Co., 2 Ch. 403, 2 See ante, p. 422. 404; Silver Valley Mines, 18 Ch. D. 3 Comp. Act, 1862, s. 35 ; Penhale, 475. &c., Co., 2 Ch. 398. 9 See Silver Valley Mines, v. .?., 472 ; 4 Penhale, &c, Co., u. s., 403, per overruling East Botallack, &c., Co., 34 Lord Cairns. Beav. 82. 4 Penhale, &c, Co., n. s. 10 Silver Valley Mines, u. s. 6 See ante, p. 422. 426 STANNARIES COURTS. [CHAP. XVIII. Appeals. Execution- generally. b. Appeals and Execution. (a) Appeals. Appeals lie to the Court of Appeal ; l and there may be a final appeal to the House of Lords. 3 But no appeal to the Court of Appeal is allowed, where the debt or damages sought to be recovered do not exceed £20 ; and where no question of juris- diction, or of the custom of mining, has arisen in the Court below. No appeal operates to stay proceedings, or is allowed, unless the appellant notifies to the Registrar, within thirty days after notice of the decision appealed against, his intention to appeal; and then gives or offers to give security to the Registrar to prosecute the same, and to abide by the final decision ; and also deposits £20 with the Registrar, to be paid to the opposite party if the appeal fails, unless the Court otherwise directs. And if the appeal is prosecuted by a registered company with limited liability, or by a bankrupt, the Registrar may require a sufficient surety to be joined as co-obligor in the bond, who may be personally liable to the extent of £50. 3 (/3) Execution. No formal demand is necessary before enforcing orders to pay ; or to produce, file, or deliver up books, papers, deeds, or accounts ; or to deliver up property. 4 Where a decree, order, or judgment, 1 Jud. Act, 1873, s. 18. Appeals formerly lay to the Lord Warden of the Stannaries. He was assisted by two or more assessors, who were mem- bers of the Judicial Committee of the Privy Council, or Judges of the Supe- rior Courts. The Lord Warden might, however, have at once remitted a cause pending before him for the determina- tion of the Judicial Committee. And, in -winding-up cases, he might have remitted appeals to the Court of Ap- peal in Chancery ; whose decision was final without any further appeal. Seel8&19 Vict.c. 32, s. 26 ; Comp.Act, 1862, s. 124 ; 32 & 33 Vict, c. 19, s. 32. 2 See App. Jur. Act, 1876 (39 & 40 Vict. c. 59), ss. 3, 11. Final appeals for- merly lay to the Judicial Committee of the Privy Council : see 18 & 19 Vict, c. 32, s. 26. 3 18 & 19 Vict, c. 32, s. 26 ; 32 & 33 Vict.c. 19,s.32. See also, as to appeals, Ord. March, 1876, tit. Miscell., 0. 14 ; tit. Wind. Comp., 0. 19. Every order pronounced by the Court of Appeal under the Comp. Act, 1862, s. 124, must be drawn up and entered by the Registrar of the Court ; and must be re- mitted by him to the Court of the Vice- Warden, by transmitting an office copy by post, but without fee, to the Registrar of the Vice- Warden : Order of Court, 28th July, 1869 : see 4 Ch. xliv. For the form of an order made on appeal from the Vice- Warden, see West Jewell Mining Co. Set. 1601. 4 32 & 33 Vict.c. 19. s. 28. SECT. 1.] STANNARIES COURTS. 42 7 is for payment of mone} r , costs, charges, or expenses, the party prosecuting it may enforce payment by suing out a writ of fieri facias to be executed within the jurisdiction without special leave. 1 Where the decree, order, or judgment, cannot be enforced within the Stannaries, any division of the High Court may issue process for the recovery of the amount due. And where the debt or damages sought to be recovered do not exceed £250, any county court, whether within or beyond the Stannaries, may issue like process. 2 A judgment for recovery of posses- sion of mines may be enforced by a writ of possession. 3 An order may, upon the application of the plaintiff, in an action for the detention of a chattel, be made for the specific delivery thereof; and that, if it cannot be found, the defendant be distrained by all his goods until he render it, or yield its assessed value. ■* Obedience to decrees, orders, or judgments, other than those for the payment of money, costs, charges, or expenses, is enforceable by attachment and committal. 5 And, generally, all decrees, orders, and judgments, made or pronounced in the case of any company registered under the Comp. Act, 18G2, or any member or agent of such a company, may be enforced in the same manner as in other cases ; 6 and in winding-up matters the Vice-Warden has the same power of enforcing his orders as the High Court. 7 Debts may be attached in a purser's suit, where judgment is Attachment of given for the payment of money. 8 And, if necessary, an issue e s ' may be tried for determining the liability of the garnishee. 9 1 Orel. March, 1876, tit. Miscell., 0. 4 0. 43 ; Tit. Miscell., 0.2, r. 9. 2, r. 1. 5 32 & 33 Vict. c. 19, s. 30; Old. 2 18 & 19 Vict. c. 32, ss. 9, 10 ; 32 & March, 1876, tit. Miscell., 0. 3. 33 Vict. c. 19, s. 29 ; Ord. March, 1876, 6 Comp. Act, 1862, s. 68. tit. Miscell., 0. 2, r. 2. This could 7 S. 120. See Ord. March, 1876, tit. not formerly have been done in the Wind. Comp., 0. 8, r. 4 ; and Sched. of case of final decrees on the equity side Forms. of the Court : see Harvey v. Gil bard, W. s Tit. Miscell., 0. 4, r. 1. W. &H. 552. The judge of a County 9 R. 6. See, as to staj- of proceed- Court within the Stannaries may re- ings, 0. 7 ; service of orders, 0. 8 ; and mit any claim of interpleader, arising costs, 0. 12. For forms of writs of on the execution of process, for deter- execution and attachment, see tit. mination by the Vice- Warden's Court : Miscell.; tit. Wind. Comp.; Sched. of 32 & 33 Vict. c. 19, s. 29. Forms. See, as to fees and charges, 3 Ord. March, 1876, tit. Actions, 0. the tables and schedules at the end of 42. Ord. March, 1876. As to fines and 428 TIX-BOUNDIXG GENERALLY. [CHAP. XVIII. Sect. 2.— TIN-BOUNDING— GENERALLY. Generally. The custom of tin-bounding is peculiar to the counties of Cornwall and Devon. It had its origin in the ancient privileges granted to the tinners of those counties ; which date, so far at least as respects Cornwall, from a period long anterior to the Norman Conquest ; and which were from time to time affirmed both by royal charters, and at various Stannary Convocations or Parliaments. 1 The custom can only, apparently, be exercised in respect of tin. If a bounder, in working a tin mine, extracts copper from it with the tin, he cannot, apparently, claim the copper. 3 Both tinners and lords of the soil are, in Cornwall, prohibited under penalties from digging or sinking shafts in highways. 3 Sect. 3.— TIN-BOUNDING IN CORNWALL. a. Mutual Rights of Owners of Soil and Tinners. (a) Generally — Ma n ner of obta i n ing Bou rods — Estate of Bounder. Generally. The right of tin-bounding in Cornwall may be claimed either in respect of land of a private person ; or in respect of land within the seventeen ancient assessional manors. 4 And, when claimed in respect of land of a private person, it may be claimed either de novo ; or in respect of land which has been anciently bounded. 5 penalties, see 18 & 19 Vict. c. 32, s. 27. Process is executed by bailiffs (7 & 8 Vict. c. 19 ; 11 & 12 Vict, c. 83, ss. 9, 10). The property provided for the use of the Stan. Court is vested in the Duke of Cornwall : 11 & 12 Vict. c. 83, s. 13. 1 See (as to the charters) ante, p. 417. See pp. x.. xi. , of Int rod. to Cone's Rep. of Rowe v. Brent on ; and the preface to Pearce's Stannary Laws. See also, generally, Pearce ; and see '•Laws of the Stannaries," Line. Inn Lib., published at Truro by Heard ; Rogers v. Brenton, 10 Q. B. 28, et seq., 65. The principal convocations for Cornwall were those of 22 Jac. 1 ; 1 1 Car. 1 ; 2 Jac. 2 ; 2 Anne ; and 26 Geo. 2 : for Devonshire, those of 2 Hen. 8 ; 21 Hen. 8 ; 2.") Hen. 8 ; 6 Edw. 6 ; and 16 Eliz. Convocations in some in- stances apparently made new laws as well as presented old customs : see Rogers v. Brenton, ?/..?., 31. 2 Rogers v. Brenton, >/. s., 56, per Lord Denman. Cf. Doe v. Alderson, reported in Sniirke's Rep. of Vice v. Thomas, 42. 3 Pearce, 52 ; Laws of Stan... 60. 4 See ante, p. 38. 5 Laws of Stan., 34, 89 ; Tearce, 37. SECT. 3.] TIN-BOUNDING IN CORNWALL. 429 The right of bounding de novo in the land of a private person Bounding de is obtained in the following manner: — If the lord of the soil " a ^j s m pni of a piece of waste land, in which a tin-mine exists, and which is unbounded or void of lawful bounds, cannot or will not himself work it, any working * tinner may give him three months' notice in writing of his own desire to work. The lord is then entitled, at any time within the three months, to himself work, if he thinks proper to do so ; and so to preserve his exclusive rights. In the event of the lord not intervening, the tinner may, at the next ensuing Stannary Court, proclaim openly the bounds which he desires to work ; the limits of their corners ; the names of his co-adventurers, if any ; and all other necessary particulars respecting them : proving the notice to the lord, before the proclamation is received. The proclamation is repeated at the two ensuing Stannary Courts ; and, if the tinner's claim is not displaced before the third proclamation, a writ of possession issues from the Court, commanding the bailiff of the Court to put the tinner in possession. Possession is then delivered, and the tinner becomes entitled to search for and work ; and, for that purpose, to enter on the surface, and encumber it with buildings, machinery, and refuse stuff. 2 And possession of one mine within tin bounds is a sufficient possession of all the mines within them. 3 But, subject to those rights, the possession of the surface remains in the lord. 4 It is necessary, that the bounds should have four corners, consisting of twenty-four turves or stones, six to each corner ; and that they should also have side bounds. 5 The right de novo can only be acquired in respect of waste land, while it remains waste. It cannot be acquired, if the waste has once been inclosed. 6 1 The privilege is confined to work- mas, 41, 42 ; R. r. Crease, 11 A. i: E. ing tinners : see Tearce, 37 ; Laws of 077 ; Crease v. Sawle, 2Q.B. 862, 865 ; Stan., 35. Officers and "great per- Rogers v. Brenton, 10 Q. B. 26, 50— 56, sons " are disabled ; Pearce, 41 ; Laws 57, 67 ; Gaved v. Martyn, 19 C. B. N. S., of Stan. 41. I'^-i 7^> e * se S- > Ivimey v. Stocker, 2 2 See, as to the statements in the Dr. & Sm. 542, 543 ; 1 Ch. 396, 397, test, Laws of Stan., 34, 40, 56, 89, 94 ; 403, 404. Pearce, 37, 40, 50 ; R. ». St. Agnes, 3 3 See Doe v. Alderson, 1 M. & W. T. R. 480 ; Rowe v. Brenton, Cone. 212. 80, 81 ; Crease v. Barrett, 1 Cr. M. & 4 lb. R. 919, 920, 922 ; Doe v. Alderson, re- 5 See Pearce, 50 ; Laws of Stan., 57. ported in Smirke's Rep. of Vice v. Tho- G Rogers v. Brenton, 10 Q. B. 50. 430 TIN-BOUNDING IN CORNWALL. [ciIAP. XVIII- bounded. Bounding in The land of any private person, which has been anciently Sentiy DdS bounded, may, if it is vacant, be entered upon by any tinner, and bounded by him. 1 Such tinner must at the ensuing Stannary Court enter his proclamation, and name his co- adventurers, if any ; the limits of the bounds ; and the desig- nations of the old and new works. 2 It is not, however, necessary that the land, when entered upon, should be un- inclosed. 3 So much of the several and inclosed customary land within the seventeen assessional manors, 4 as has been anciently bounded with turf, may in like manner be entered upon. 5 A tin bound, as such, cannot, properly speaking, be made the subject of an action to recover possession. 6 But where a bounder has once worked and been in possession, and has not abandoned it, he is, in strictness, in case of a wrongful entry, entitled to recover " the mine lying within his bounds " ; even where he is not in actual possession at the time. 7 The estate of a bounder is, in Cornwall, in the nature of a chattel real. 8 Bounding in assessional manors. Estate of bounder. (/3) Dish or Toll-Tin. Dish or toll-tin. As compensation to the owner of the soil, the bounder is in the great majority of cases obliged to render him a portion of the produce, called the dish or toll-tin. This is usually a fifteenth; 9 1 Pearce, 37 ; Laws of Stan., 34, 56, 89 ; Crease v. Barrett. 1 C. M. & R. 920 ; Doe v. Alderson, reported in Smirke's Rep. of Vice v. Thomas, 41, 42 ; Crease v. Sawle, 2 Q. B. 865, 866 ; Rogers v. Brenton, 10 Q. B. 50. 2 See Pearce, 26 ; Laws of Stan., 19. The statement of Parke, B., to the contrary in Doe v. Alderson, reported in Smirke's Rep. of Vice v. Thomas, 42. seems to be incorrect. 3 See n. ', and authorities there cited. 4 See ante, p. 38. 5 Pearce, 37 ; Laws of Stan., 34, 89 ; Rowe v. Brenton, Cone. 81, 328 ; Crease v. Barrett, 1 C. M. & R. 920 ; Crease v. Sawle, 2 Q. B. 865, 866; Ivimey v. Stocker, 2 Dr. & Sm. 542. 6 See Doe v. Alderson, 1 M. & W. 210; Rogers v. Brenton, 10 Q. B. 53. In Ivimey v. Stocker, 2 Dr. & Sm. 545 (reversed, 1 Ch. 396), V.-C. Kindersley said that there was no clear authority on this point. "> See Doe v. Alderson, 1 M. &; W. 210 ; S. C. (in a subsequent stage) reported in Smirke's Rep. of Vice v. Thomas, 39 (see pp. 41, 44); Vice v. Thomas. ;/. .*.. 1. 26, 35 ; Rogers r. Brenton. u. .?., 52. 53. 8 Pearce, 51 ; Laws of Stan., 58 ; Vice v. Thomas.?/..'?., 10; Ivimey v. Stocker, 1 Ch. 404. 405. Cf.. as to Devonshire, infra, Sect. 4, a (a). 9 Pearce,37 ; Laws of Stan.. 34. See generally the cases cited, ante. p. 429, n. -. SECT. 3.] TIN-BOUNDING IN CORNWALL. 431 but, according to certain special customs, a twelfth, 1 or a tenth. 2 In some few cases the render is made in money. 3 In order to secure the due render, tinners are bound under penalties not to break tin at a distance from their works.* An action for an account will lie in respect of toll-tin. 5 And, if it is not rendered within three years, the bounds may be avoided. 6 The person entitled to the dish or toll -tin is rateable, as being in receipt of a portion of the mine ; and the bounder is exempt. 7 (y) Renewals and Workings. The bounder must, or some one on his behalf, in order to pre- Renewals, serve his rights against the owner of the soil, annually renew the bounds by a new cutting of the turves, as at the commence- ment. 8 And keepers of bounds for others, who, without giving notice, suffer them to become void for want of renewal, incur penalties. 9 The obligation to renew applies to side bounds ; but in case side bounds are not renewed, while head bounds are renewed, the side bounds only are liable to be lost. 10 How- ever, if the day of renewal is allowed to slip, it may, subject to the right of the owner of the soil to re-enter, be made good by a subsequent renewal before any intervention by a rival tinner. 11 Bounders and keepers of bounds for others are obliged, under penalties, upon request by the owner of the soil, to show the corners of their bounds, and to disclose the day of renewal. 13 1 Rowe v. Brenton, Cone. 81 ; Crease been changed : see Rat. Act, 1S74, s. v. Sawle, 2 Q. B. 865, 866. 13 ; Van Mining Co. v. Llanidloes, 1 Ex. 2 Crease ». Barrett, 1 Cr. M. & R. 919, D. 310. The toller usually takes the 920, 925 ; R. v. Crease, 11 A. & E. 677. toll-tin to a blowing-house, where it is 3 Rowe v. Brenton, Cone. 81. Be- weighed and purchased. The par- sides the toll-tin a fine was also for- ticulars are then entered in the blow- merly paid ; but this payment has ing-house books, and are open to in- long since ceased : see Rowe v. Brenton, spection. See Crease v. Barrett, 1 Cr. Cone. 319. As to the " land dole," see M. & R. 919, 923, 924, where the admis- Pearce. 50 ; Laws of Stan., 57. sibility of such entries in evidence was 4 Pearce, 57 ; Laws of Stan., 71. in question. 5 See Trelawny r. Williams, 2 Vera. 8 See Pearce, 37, 50 ; Laws of Stan., 483. 34, 57. See ante, p. 429. 6 Laws of Stan.. 95. 9 Laws of Stan.. 90, 91. < This was so before the Rat. Act, w Pearce, 50 ; Laws of Stan., 57. 1874 (see R. v. St. Agnes, 3 T. R. 480 ; u Pearce. 26; Laws of Stan., 20. See R. v. Crease, 11 A. & E. 677 ; R. v. Doe v. Alderson, reported in Smirke'a Todd. 12 lb. 816 ; Crease v. Sawle, 2 Rep. of Vice v. Thomas, 43, 44. Q. B. 862. 886) ; and the law has not 1: Laws of Stan., 91, 95. 432 Workings. TIN-BOUNDING IN CORNWALL. [ciIAP. XVni. And although the bounder is not compelled to continuous working with absolute strictness, and is allowed a reasonable time for consideration, preparation, and due selection of places and planes, he must not cease to pursue in good faith his original object. If he does, the owner of the soil may resume his exclusive rights. 1 Transfer and devolution (h) Transfer and Devolution. Tin-bounds may be the subject of assignment, settlement, or demise. 2 And it is not an uncommon thing for bounders, instead of working the mines which they have bounded, to let them out to other persons to do so : upon the terms of receiving either a money rent ; or a certain proportion of the produce, called the " farm-tin." 3 In the latter case the persons receiving are rateable, as being in receipt of a portion of the mine ; and the persons paying are exempt. 4 Tin-bounds may also be the subject of bequest ; 5 and they may be liable to the payment of debts and legacies. 6 Being an estate in the nature of a chattel real, they pass to executors. 7 Working and contribution. b. Mutual Rights of Co-Adventurers. If any co-adventurer refuses to set his part to farm, or bring in his men to work, or pay his contribution to the expenses, the other adventurers to the extent of one-half in value may give him notice to do so. If the notice is not complied with, he will be excluded from the bounds and the adventure. And, in that event, he will, in general, be only entitled to the usual and ac- customed farm in proportion to his share. But, if the other 1 Laws of Stan., 95, 10G ; Rogers v. Brent on, 10 Q. B. 64. 2 Rogers v. Brenton, 10 Q. B. 64 ; Vice r. Thomas, Smirke's Rep. 12 ; Doe v. Alderson, reported in ib. 43 ; S. C. 1 M. & W. 210. 3 Pearce, 40 ; Laws of Stan., 40, 96 ; Ivimey v. Stocker, 2 Dr. & Sm. 542 ; 1 Ch. 397. Where there is a doubt, whe- ther lands are under bound or not, it is not uncommon to take a lease both from the party supposed to be bound owner and from the lord : see R. v. Crease. 11 A. & E. 683, per Cole- ridge, J. 4 See R. r. St. Agnes, 3 T. R. 480. See ante, p. 431, n. 7 , and the| authorities there cited. 5 Rogers v. Brenton, v. ss. 6 Pearce, 51 ; Laws of Stan., 58. ' lb. ; Ivimey v. Stocker, 1 Ch. 404. See ante, p. 430. SECT. 3.] TIN-BOUNDING IN CORNWALL. U$3 adventurers have set their parts, he will he entitled to a propor- tion of the reserved farm, or of the usual farm, at his election. 1 Adventurers may bring in, in proportionate parts, their own Supply of J , . . c •, . , goods— sale of goods for the purposes of the working ; the prices tor winch interest. are fixed periodically, and notified to the adventurers or their agents. 3 Any co adventurer, who sells his interest, must notify the name of the purchaser to the others. 3 If any co-adventurer defrauds the other adventurers, he is Fraud, liable to damages and a fine. 4 And if any co-adventurer fraudu- lently suffers an old bound to become vacant by non-renewal, and then renews on his own account, the renewal enures fur the benefit of the adventurers who are not privy to the fraud ; and the person committing the fraud is liable to forfeit £2U. 5 c. Bounders and other Tinners. Any tinner, who has been in possession for a year and a day, Titles, is not allowed to be dispossessed without a verdict. Indeed, whoever first enters gains a right of property, although not a year and a day in possession, until the title of the rival claimant is determined. But the fruits of the bounds are protected for the benefit of the person ultimately proving his title. 6 Where the owners of bounds leave them unwrought for Tinners and • r- , i • , i i • unwrought twelve months, other tinners may, if they give the owners notice bounds< of their desire to work, and the owners do not within two months resume the working, enter and work them. But they must, in the case of a ' dry-work,' pay to the owners one seventh of a 'dish;' and, in the case of a ' water-work,' one ninth. And they must give security that they will work properly. And, in the event of an improper working, the owners may re-enter. 7 Tinners may not carry away tin stuff from adjoining bounds. Tn If they do, a remedy may be had in damages. And where it is 1 Pearce, 40 ; Laws of Stan.. 40, 96. 4 Pearce, 57 ; Laws of Stan.. 70, If the mine in question is worked on 107. the cost-book system, a " purser's suit" 5 Pearce. 42 ; Laws of Stan.. 42. '.hi. (as to which see next Chap., Sect. 2, r.) 6 Pearce. 41 ; Laws of Stan.. 41. 42, may also be maintained : see Laws of 56, 57. Stan., 101. 102, 103. 7 Laws of Stan., 47, 48, 91, 92, 93 ; - Tearce, 51 ; Laws of Stan., 58. Pearce. 44 ; Vice v. Thomas. Smirke, 3 Laws of Stan.. 59. 13, 30. F F 431 TIN -BOUNDING IN CORNWALL. [CHAP. XVIII. suspected, that there has been a breaking of bounds, the owner may, on giving notice, go down and measure the ground in the bounds of the supposed trespasser ; and, on resistance by the latter, he may obtain an order for that purpose from the Vice- Warden. The party disobeying such an order may be fined. If, after measurement, it appears that there has been a breaking of bounds, or that the fact is doubtful, a trial may be had, and an interim injunction obtained. 1 Customary right of using and diverting water — streaming for tin. Ivimey v. Stocker. d. Rights in Respect of Water. Bounders are entitled by custom to the free use of the water over the whole of the district within their bounds ; and to the right of diverting that water into other streams. 2 Indeed cleansing the produce of their workings by ' streaming ' is almost always a necessary part of their operations ; and, for this pur- pose, ' streamers for tin ' usually secure a conduit of water from the nearest stream. 3 Bounders may, moreover, carry an adit for the passage of water through other men's bounds in waste lands without leave; although they cannot, of course, claim any benefit in any tin which they may break. But they may not carry an adit through other men's several lands without leave and pay- ment. 4 However, bounders, who disturb ' pot- water,' or divert water from an ancient mill, are liable to an action ; and bounders, who maliciously divert water, are liable to penalties. 5 And bounders cannot, invito domino, cause a stream of water to be made to flow from other lands over the lands bounded. For such water, although it may be beneficial to them, may be injurious to the owner of the soil. Where bounders have, from before the time of living memory, used for the purposes of their works the water of an artificial watercourse arising in the land of another person, the right to the use of the watercourse is presumed to be a right belonging 1 Laws of Stan., 97. Whoever forcibly enters on tin works, and dis- turbs the workers, is liable to penal- ties and a fine : Pearce, 45 ; Laws of Stan., 48. 2 Rogers v. Brenton, 10 Q. B. G7 ; Gaved v. Martyn, 19 C. B. N. S., 732, 751, ct seq. 3 See Pearce, siii. ; Rogers v. Bren- ton, u.s. As to streaming for tin, see ante, p. 284. 4 Pearce, 44 ; Laws of Stan., 4G. & Laws of Stan., 104. 6 Ivimey v. Stocker. 1 Ch. 405, 409. SECT. 3.] TIN-BOUNDING IN" CORNWALL. 435 to the land in which the bounders arc exercising their customary privileges; and not a right conceded to them as bounders. If, therefore, the bounders abandon their works, the right to the use of the watercourse enures for the benefit of the owner of the soil ; and the owner of the land in which it arose will not be per- mitted to divert it. 1 And the mere fact, that the owner of the land in which it arose was also one of the bounders does not create a unity of possession ; so as to extinguish the right. 2 Bounders are entitled by custom to wash their minerals in Customary right of wash- the streams of water within their bounds ; and to send down such ing minerals, streams the sand, stones, rubble, and other stuff dislodged in the i ngS and &c! process of the workings. 3 And this right exists even in the case of natural surface streams ; and although its exercise may either foul or obstruct them, to the damage of other riparian owners. 4 They must not, however, in exercising the right, injure rivers, or lands adjoining rivers. And if, as a consequence of its exercise, lands become overflowed by a river, they are bound, within two days after receiving notice from any person thereby injured, to clear the river ; and, in default, are liable to damages and to a fine. 5 And, for the protection of the havens and ports in Cornwall, persons, who stream for tin near any waters or rivers flowing into such havens or ports, are under a statutory obligation to prevent the dislodged sand, stones, gravel, and rubble from being conveyed into such havens and ports ; and this obligation is enforceable under penalties. 6 Bounders are not entitled to let off water through other men's Discharging water. adits without leave and payment. 7 e. Validity of Custom. The validity of the custom of tin-bounding in Cornwall has Validity of . ,. . 11 i i i , -i i • • -i i ■ custom lllS been judicially doubted ; on the ground, that it involves a claim been doubted. 1 lh. 396, 404, &c. ; reversing S. C. able : sec ante, p. 397. 2 Dr. & Sm. 537. 5 Laws of Stan., lit."). No such no- 2 Iviniey v. Stocker, 1 Ch. 408. See tiee appears to have been given in further, as to this case, ante, p. 391. Carlyon v. Lovering. >/. x. 3 See Carlyon v. Lovering, 1 H. & G 23 Hen. S, c. 8, s. 1 : 27 Hen. 8, c. N. 784. 23, s. 2. 4 lb. The custom is not unreason- ' Pearce, 44 ; Laws of .Stan , 46. i- v 9. 436 TIN-BOUNDING IN CORNWALL. [CHAP. XVHI. by custom to a right of profit a prendre in alieno solo} And in other respects the custom has been said to be also open to objection. It has been objected (2) that no evidence has ever been adduced, which prescribes any limit to the area capable of being bounded : (3) that, if a large area is inclosed, it is uncertain what extent of working within it will satisfy the custom : (4) that the custom asserts a right not merely to take, but to search for ; and that it may, therefore, seriously affect titles to land, although not actually containing tin : (5) that the exercise of the custom may destroy any mineral, which may be mixed with tin : and (6) that, in lands of customary tenure, toll is payable, not to the customary tenant who may alone be injured by the workings, but to the lord who may sustain little or no injury. 3 But probacy j t canno t be doubted, that these are weighty objections. It on insufficient , ° J J grounds. has, however, been expressly decided, that the first of them is immaterial. 3 It may be, that the right of tin bounding iDVolves a claim by custom to a right of profit d prendre. But it is not therefore bad. If it were not claimable by custom, it would not be claimable at all ; 4 except, perhaps, as part of the local law of a particular district. 5 For it is incapable of acquisition by prescription. 6 It has, however, been broadly stated, that the right of tin-bounding is not in fact a right of profit a prendre ; but is, on the contrary, an interest in the land itself. A right of profit & prendre is merely the privilege of digging a part of another's soil for a special purpose ; and a right to take the whole of a particular product at the taker's discretion, as the right of tin -bounding is, cannot, it has been stated, be properly so described. 7 If these statements are correct, they furnish of themselves a complete answer to the first objection. The second and third objections may probably be answered by saying, that 1 See A.-G. v.' Mathias, 4 K. & J. the case of copyholders, ante, pp. 91 . 591 : see ante, pp. 90 et seq. 92. 2 See Rogers v. Brenton, 10 Q. B. 5 See Doe v. Aldcrson, reported in 66. 67, 68. Smirke's Rep. of Vice v. Thomas. 40 ; 3 Rogers v. Brenton, 10 Q. B. 26. See Gaved v. Martyn, u, s., 757. also Gaved v. Martyn, 19 C. B. N. S. 6 Rogers v. Brenton, v.s., 60, 61. Sec 7C2, 757 Ivimey v. Stocker. 1 Ch. ante. pp. 95, 96. 403. ' See Elton on Commons. Ill, 115, 4 Rogers r. Brenton. v. .?., 62. Cf. 116. 117. SECT. 4.] TIN-BOUNDING IN DEVONSHIRE. 437 reasonableness must determine both the area capable of being bounded, and the extent of working necessary to satisfy the custom. The fourth and fifth objections may be answered by saying, that the inconveniences or hardships in question are of themselves insufficient to establish the invalidity of the custom. And the sixth objection may probably be answered by saying, that arguments based on hardship, which might with propriety be applied to the case of ordinary persons, cannot with equal propriety be applied to the case of customary tenants. Independently of these considerations, it may be said to be for the benefit of the public, that minerals should not remain locked up in the bowels of the earth. 1 Sect. 4. -TIN-BOUNDING IN DEVONSHIRE. a. Mutual Rights of Owners or Occupiers of Soil and Tinners. (a) Generally— Estate of Bounder. No tinner is entitled to work in meadow grounds (except Generally, in places where tin has usually been wrought); or in any orchard, garden, mansion house, or buildings, or in any curti- lages belonging thereto ; or in any tillage land ; or in any land, where o-rain or corn is grown ; without licence both of the lord of the soil and of the tenant in occupation ; on pain of forfeit- ing £5 and treble damages. 3 Subject to this, any tinner may dig tin, wherever it may be found, in Devonshire ; and any person, who hinders him, is liable to a penalty of £40. 3 The estate of a bounder is, in Devonshire, an estate in fee Estate of bounder. simple. 4 (/3) Dish. The tenth part of the profit of tin worked in any meadow, Dish. pasture, or tillage belongs to the lord of the soil and the tenant in occupation in equal shares. 5 1 See Rogers r. Brenton, u. *., 50. 3 lb. 190. Cf., as to Cornwall, ante, The cnstom has been recognized, al- pp. 429. 430. though not unreservedly, by statute : 4 Pearce, 106. 202, 215. Cf., as to see 6 & 7 Will. 4, e. 106, s. 43 ; 7 & S Cornwall, ante, p. t30. Vict. c. 105, ss. 32, 84 ; 18 & 19 Vict. e. 5 Pearce, 249. Cf., as to Cornwall, 32, s. 17. ante, pp. 430, 431. 2 Pearce, 248. 438 TIN-BOUNDING IN DEVONSHIRE. [CHAP. XVIII. Renewals. "Workings. (y) Renewals and Workings . Bounders are obliged, in order to preserve their rights, to renew their bounds yearly between the feasts of St. Peter Advincula and St. Michael the Archangel. 1 Bounders must not, in working, injure any timber or woods ; without the licence both of the lord of the soil, and the tenant in occupation ; on pain of forfeiting £5, and treble damages. 2 And they are obliged to level all wrought places in meadows within one year; but not so as to injure the conveyance of water to or from any works. 3 Transfer and devolution. (5) Transfer and Devolution. Tin bounds in Devonshire may be the subject of conveyance, or devise. 1 Being fee simple estates, they devolve, on intestacy, on the heir-at-law. And if the heir is under sixteen years of age when his title accrues, the next of kin, or some nominee of the father or mother, enters and works ; and accounts to the heir when he attains sixteen. 5 Working and contribution. Fraud. b. Mutual Rights of Co-Adventurers. Any co-adventurer may work in his own work for his own part. 6 Every co-adventurer is bound to contribute to the expenses ; and, if he refuses to do so, he will be disentitled to share in the profits. 7 Any gift or conveyance of his interest, made for the purpose of escaping contribution, is void. 8 If any co-adventurer colludes with a stranger to defraud the other adventurers by allowing the stranger to ' pitch ' new bounds without informing the other adventurers, he is liable to forfeit his share, and to pay a penalty of £20. And the stranger is liable to a similar penalty. 9 1 Pearce, 200, 257. Cf., as to Corn- wall, ante, p. 431. - Pearce, 248. 3 lb. 249. ■» lb. 19G, 223. 5 lb. 194. See ante, p. 437. See further, as'to infants, Pearce, 195. 6 Pearce, 197. 1 lb. 214. 8 lb. 210. 9 lb. 194. SECT 4.] TIN-BOUNDING IN DEVONSHIRE. 439 c. Bounders and other Tinners. If bounders fail to renew at the prescribed time, 1 other Tinners and T-i r» i -it a '• i r i unrenewed tinners may ' pitch before the Feast of All Saints next lol- bounds, lowing. They must then give warning to the bound-owners. And they must enter the name of the ' pitch ' in the books of the Stannary Court the next time it meets ; with their own names, those of their co-adventurers, those of the owners, and the day and place of warning. Proclamations are then made in the Court ; and the owners are entitled to come in, and prove, if they can, that no default has been made. And, on their failure to do so, the title of the ' pitchers ' is established. 2 Taking tin from tin works is prohibited. If it is improperly Trespass, taken, an action will lie to recover it. 3 d. Rights in Respect of Water. Bounders are entitled by custom to carry water to and from Rights in . , respect of their works in, over, or through meadows, orchards, woods, water . groves, and other land ; * and any person hindering them is liable to a penalty of £40. 5 They are not, however, entitled to divert water from streams into their mines, and for that purpose to dig trenches over other persons' lands. And ' streamers for tin ' are not allowed to injure the works of other tinners. 7 And the same provisions exist for the protection of the havens and ports of Devonshire, 8 as of Cornwall. 9 e. Validity of Custom. So far as the custom of tin-bounding in Devonshire is, as in The custom ,,-,-,.,. ,i frequently the case of many descriptions of land it is, a custom to take inv: ,r„i. the soil of another person without compensating him, it is wanting in the element of reasonableness ; and without doubt is accordingly invalid. 10 1 Ante, p. 438. 7 Pearce. 204. 205. As to ' streamers,' 2 Pearce, 200, ct seq., 257. see ante, pp. 284, 434. 3 /£,. 211. 8 23 Heu. 8, c. 8. s. 1 ; 27 Hen. 8, c. 4 lb. 190, 249. 23, s. 2 ; Pearce 204. 205, 242. 5 jy m 190. 9 Ante, p. 435. « Bastard v. Smith, 2 M. & Rob. 10 See Rogers v. Prenton, 10 Q. B. 129. 68. It is only in the case of meadow^. 440 OTHER CORNISH AND [CHAI\ XVIII. Sect. 5.— OTHER RIGHTS AND CUSTOMS. Title to manorial mines. Leases and licenses. Devolution of tolls. The lord of a manor in Cornwall niay, it seems, by con- veyance and acts of ownership, establish his right to all tin mines within the manor ; although under the freehold tenements thereof. 1 Where an agreement was entered into in waiting for a tin sett in Cornwall, and no time was fixed for its duration, the duration was, by the custom of the Stannaries, said to be as long as the adventurers were willing to work. 2 Where adventurers, entitled to mining concerns in Cornwall under leases or licences, allow more than a year and a day to pass without working, the leases or licences become, it is said, avoided by the usage of the Stannaries ; and the lessor or grantor may re-enter. 8 Where toll, or a proportionate part of ore, is reserved as a rent upon a mining lease in Cornwall, made by a tenant for life under a power, the benefit of it, as in the case of a money rent, devolves upon the remainderman. 4 And, where, upon a lease of mines being granted by a tenant for life under a power, a toll of one-sixth of the produce was reserved ; and a power was reserved to the lessor to take up at any subsequent time another sixth, upon payment of a proportion of the expenses up to that time incurred, and upon agreeing to pay a propor- tion of the future expenses; 5 it was held, that the benefit of this power devolved upon the remainderman. 6 Drainage adit. No custom exists in Cornwall, by virtue of which an adit once artificially made for draining a mine may always be used for that purpose; so as to prevent rights to the prejudice of that purpose from being acquired in respect of the water issuing from the adit. 7 pastures, and tillages, that a portion of the profit goes to the lord of the soil and the tenant in occupation : see nut i'. p. 437. As to the requisites of a custom, see ante. p. 90, n. a . See and consider Bastard v. Smith, 2 M. & Rob. 129 ; $. c. 5 A. & E. 827. Cf . as to Cornwall, ante, pp. 435, 436, 437. 1 See Curtis v. Daniel, 10 East, 273. - Trelawny r. Williams, 2 Vern. 484, Cf. Basset v. Basset, Amb. 843. 3 See Norway v. Rowe, 19 Ves. 146. 4 Basset v. Basset, Amb. 843 ; Camp- hell v. Leach, ib. 74S. 5 Such a power was in the mining vernacular of Cornwall known as a ' pleasure dole.' 6 Basset v. Basset, Amb. 843. 7 See Magor v. Chadwick, 11 A. & E. 571 : see pp. 572, 573, 581. 584. SECT. 5.] DEVONSHIRE RIGHTS AND CUSTOMS. J 11 Evidence of what has taken place iu one manor in Cornwall Evidence of or Devonshire may, it seems, be admitted for the purpose of Cl explaining or showing the custom in another ; even where the question is with respect to the right to minerals as between a lord and the tenant. 1 And the ancient answers of conven- tionary tenants of one of the seventeen ancient assessional manors 3 of Cornwall, stating the rights of the lord, have been received in evidence against the freeholders of the manor ; 3 the custom of mining in a particular district having been in ques- tion ; and the conventionary tenants having been persons who had a competent knowledge on the subject, and who were con- sulted as such. 4 1 See Howe v. Brenton, 8 B. & C. 758 ; Anglesey r. Hatkeiton, 10 M. & W. 237. Cf. Ely v. Warren, 2 Atk. 189. This forms an exception to the general rule : see ante, p. 93. 2 See ante, p. 38. 3 See Crease v. Barrett, 1 C'r. M. & K. 919. 4 See ib. pp. 928—930. It was for- merly necessary to coin tin in Corn- wall, and duties in respect of the coinage were payable to the Crown (see Vice v. Thomas, Smirke's Rep. App. 89). But by 1 & 2 Vict. c. 120 the necessity for coinage was abolished : the duties on the coinage were made to cease : an annual sum payable to the Crown was substituted therefor ; and provision was made for the payment of new duties of customs on tin and tin ore in reduction of the duties, which were previously payable (see ss. 1 to 8 inclusive). And by 2 & 3 Viet. c. 58, s. 1, provision was made for an assessment on tin ore in Corn- wall. The Crown had also formerly (as in strictness it still has) the right of preemption of tin in Cornwall. This right was not by prerogative, but was an " ancient right and inherit- ance " (Case of Stannaries, 12 Kep. 9). It was enforced as lately as the last century. The price and terms were usually settled by negotiation between the Crown on the one side, and the tinners represented by the Stannary Parliaments on the other : see Rogers v. Brenton, 10 Q. B. 38, n. (c) : see also Vice v. Thomas, Smirke's Rep., App. 91. CHAPTER XIX. THE COST-BOOK SYSTEM AND CORNISH AND DEVONSHIRE COMPANIES. Sect. 1.— GENERALLY.— REGISTRATION.— MANAGEMENT. a. Generally. Cost-book Cost-book companies were first known, and they chiefly exist, companies • Cornwall and Devon. In fact almost every open mine in usually, but not ^ x always, in those counties is or was until recently worked on the cost-book Cornwall or . . . . , ,., Devon. system •; l and every mining association therein is or was until recently presumed to have been formed on that system, in the absence of express agreement to the contrary. 2 Cost-book companies are not, however, peculiar to Cornwall and Devon. They are to be met with in other parts of England ; 3 in Wales ; 4 in Ireland ; 5 and even in the Colonies. 6 And the legality of concerns, formed before the commencement of the Comp. Act, 1862, and worked on the cost-book system in Wales, or in other parts of England than Cornwall or Devon, cannot be disputed ; no matter of what numbers their pro- prietary may consist, and although they may not be registered under that Act. 7 No mining partnership, consisting of more than 1 Proc. in Stan. (1856), Introd. No- De G. M. & G. 837 ; Arundell v. Atwell, tice, p. 21. cited in Tapping's Readwin Prize 2 Ib. p. 28. Essay, p. 7 ; Hawkins' Case, 2 K. & J. 3 See Clarke v. Hart, 6 H. L. C. 253 ; Walker v. Bartlett, 18 C. B. 845 ; 633 (Cumberland) ; Edwards' Case, 1 Birch's Case, 2 De G. & J. 10 ; Loft- L. T. N. S. 399 (Staffordshire) ; Apple- house's Case, ib. 69 ; Welsh Potosi Co., treewick Co., 18 Eq. 95 (Yorkshire). 27 L. J. Ch. 311 ; Hnmby's Case, 28 ib. 4 See Curling v. Flight, 5 Ha. 242 ; 875 ; Birch's Case, ib. 891. 6 ib. 41, 44 ; 2 Ph. 613, 614 ; Pennant 5 The Kilbricken Case, cited in Tap- &c. Co., 15 Jut. 1192; Atwood v. Ernest, ping. 7. Sec 30 L. T. 1S5. 13 C. B. 881 ; Jennings v. Broughton, c See Proc. in Stan. (1856), Introd. 22 L. J. Ch. 587 (S. C. 5 De G. M. Not., p. 20 ; Eobson v. Devon. 3 Jur. & G. 136) ; Fenn's Case, 1 Sm. & G. 26 ; N. S. 576, 4 ib. 245. 4 De G. M. & G. 285 ; Mayhew's Case. 5 ~ See R. v. Frankland. 9 Jnr. X. S , SECT. 1.] COST-BOOK AND STANNARY COMPANIES GENERALLY. 443 twenty persons, can, however, be formed since that Act, unless it is registered under it ; or is formed in pursuance of some other Act, or of letters patent ; or works within and subject to the jurisdiction of the Stannaries. 1 Aud, to bring a partnership or Working company within the latter description, it must work for metallic gjSto^ minerals in Cornwall or Devon. 3 Stannary jurisdiction." A scrip mine is only another name for a cost-book mine. It Scri mines might, no doubt, seem from expressions used in some of the reported cases, that a difference exists. 3 But such expressions were due to an imperfect apprehension of the nature of the cost-book system. 4 In general, as the first step towards the formation of a cost- Formation of book company, one or more persons obtain from the owner of company— the soil a grant or licence to search for minerals. This grant or P' arit or ° . license. license is considered to be in trust for the company ; and, only in very rare cases, is there a formal declaration of trust in writing. 5 But, whether there is a formal declaration of trust or not, the grantees are entitled, as between themselves and the company, to be indemnified and held harmless in respect of it. G A meeting is then held of the persons intending to become Meeting of adventurers in the proposed concern ; who decide on the number andTecoiTof of shares into which it shall be divided, the number to be allotted arrangement. to each, and the corresponding proportions in which each shall contribute to the expenses of the working. 7 They sometimes agree upon a fixed capital; 8 and they sometimes constitute the 390,^;- Erie, J. See also the cases cited mine was in the argument suggested ante. p. 422 n. 4 , in none of which was to exist : see p. G90. any question raised as to the legality 4 See Tapping, pp. 1. 2. of the concern. 5 Kittow v. Liskeard, L. R. 10 Q. B. 1 Comp. Act, 1862, s. 4. An ordi- 10. See also Hayter v. Tucker, & K. & nary partnership, consisting of more J. 247. than twenty persons, and having for G Kittow v. Liskeard, v. s. its object to get, win, and sell mine- "' For the description in the text, see rals, must be registered : see Crowther Kittow v. Liskeard, L. R. 10 Q. B. 9. v. Thorley, 31 W. R. 504. citedante, p. See also Curling v. Flight, 6 Ha. 4."i, 261, n. 5 . 2 Ph. 614 ; Watson v. Spratley, 10 - See ante, pp. 418, 419. Exch. 235 ; Peel v. Thomas, 15 C. B. 3 In Hawken v. Bourne, 8 M. & W. 714. 709, the mine in question is stated to 8 See De Castro's Case, 2 Jur. X. S. have been a ' scrip mine.' In Ricketts 1203 ; Harvey v. Clough, 8 L. T. X. S. v Bennett, 4 C. B. 686, a difference be- 324 ; Johnson v. Goslett, 18 C. B. 728 : tween a scrip mine and a cost-book 3 C. B. X. S. 569. 444 COST-BOOK AND STANNARY [CHAP. XIX, shares of a fixed amount. 1 They sometimes also provide, that it shall be imperative to issue new shares, if further capital is required. 2 All such cases are, however, rare ; and are, in strict- ness, a departure from the normal type of the system. 3 For their intention generally is that goods shall be ordered on credit from time to time, 4 according as they are necessary for the pur- poses of the concern ; and, that, for the payment of such goods, money shall be from time to time provided by means of calls or contributions. 5 They usually appoint an officer called a 'purser' to act as their agent; and they frequently appoint, in addition, one or more ' captains ' to assist the purser. But, in many cases, they appoint a managing committee and a secre- tary ; who discharge the duties, which would otherwise devolve upon the purser. They enter the particulars of their arrange- ment, and their own names and addresses, in the cost-book ; which is a book kept for the purpose of entering their ' costs,' or working expenses ; 7 and which gives its name to the system. 8 And they then sign, or ought to sign, the cost-book. 9 The cost- book does not require an agreement stamp. 10 Rules regu- The majority of companies, purporting to be worked on the letting cost - book com- cost-book system, were until recently exclusively regulated by the unwritten code of rules constituting the cost-book custom. 11 However, at the present day, 1 - the majority of such companies 1 See De Castro's Case, 2 Jur. N. S. the members against the other members I 203 - and the committee ; but the secretary 2 See Thomas v. Hobler, 4 De G. F. was not made a party ; an order for & J. 201, 204. inspection was made against one of 3 Proc. in Stan. (1856), Introd. Not. the committee, although he alleged 28, 29 ; Kittow v. Liskeard, L. R. 10 that he had no individual control over Q. B. 9. See Tapping, 27. the secretary : see Chaffers v. Woolner, 4 Tredwen v. Bourne, 6 M. & W. 465, 30 L. T. 126. 466 ; Martyn v. Gray, 14 C. B. N. S. 842. 7 Curling v. Flight, v. s. ; Kittow v. 5 Ricketts v. Bennett, 4 C. B. 701 ; Liskeard, w. .■?. Fenn's Case. 1 8m. & G. 31 ; Kittow v. 8 Proc. in Stan. (1856), Int. Not., 19. Liskeard, u. s. o See Tippet v. Johns, Tapping, 187. 6 Curling v. Flight, 6 Ha. 45; 2 Ph. "> Vivian v. Mowatt, 8L. T. 480. 614; Proc. in Stan. (1856), Int. Not. 23; " See Bodmin United Mines, 23 Beav- Kittow v. Liskeard. u. s. Where a cost- 379 ; Cox's Case, 4 De G. J. & S. 55 n., book company possessed a committee of 56n. Scealso Curling?;. Flight,2Ph.618. management and a secretary ; and the 12 This, no doubt, explains the con- latter had the custody of the books, flicting statements in Bodmin United subject to the order of the committee ; Mines, v. s.. and Cox's Case, v. ,?., and and an action was brought by some of in Frank Mills Co., 23 Ch. D. 55, 56. paines SECT. 1.] COMPANIES — GENERALLY. li:> are worked according to expressly defined rules. 1 In some cases these rules are little more than an echo of the custom ; and, where this is so, the companies are, of course, as strictly cost- book companies as if they were without a code. But, in others, the rules depart more or less from the custom ; and, where this is so, the companies cannot properly be said to be cost-book companies at all. 3 Where rules exist, they should be entered in the cost-book, and signed by the members. 3 Indeed it is sometimes made obligatory on the members to sign them before they can become entitled to the privileges of membership. But notwithstanding such an obligation, a person may, without sign- ing, be deemed to have become a member ; and may be liable to creditors accordingly. 4 It has been said to be customary in companies, purporting to Commcnce- be worked on the cost-book system, in cases where a fixed ,lien , tof • ° working in capital has been agreed upon, to commence working as soon as cost-book all the capital has been subscribed for, although no instalment may have been received in respect of a considerable part of it. 6 However this may be, it is quite clear, that, where a fixed capital has been agreed upon, and the working has been com- menced, and then abandoned, before a considerable portion of the capital has been subscribed for, an allottee is, pHmd facie, entitled to recover back from the promoters the deposits which he may have paid. 6 But, of course, knowledge, followed by laches, may deprive him of his rights. 7 It need hardly be said, that where the prospectus of a cost-book company provides, that the capital shall not be less than a specified amount ; and the rules provide, that, upon a fixed proportion being subscribed for, the working may be commenced ; a member cannot escape from his position by alleging that the rules are inconsistent with the prospectus. 8 1 See Frank Mills Co.. >/. s. 199. 2 Bodmin United Mines, u.s. ; Cox's s Johnson v. Goslett, 3 CRN. S. 569, Case, u. s. See Frank Mills Co., v. s., 56. 577 ; affirming S. C, 18 C. B. 728. In b Tapping, 16. strictness, a fixed capital is foreign to 4 Hawkins' Case, 2 K. & J. 253 ; the nature of the cost-book system : Bowen's Case, 4 W. R. 800. The exist- ante, pp. 443. 444. ence of rules may sometimes relieve 6 Barstow v. Reynolds, 24 L. T. S3, members from being bound by any- 278 ; Johnson v. Goslett. v. s. thing, which does not appear therein : i Hawkins' Case. 2 K. & J. 2."):!. see Thomas r. Hobler, 4 De G. F. & J. s Ih. ; Richardsi m's case. I W. R. 670. 440 COST-BOOK AND STANNARY [CHAP. XIX. Fraud in origin of cost-book companies. Cost-book companies rateable ; and may sue and be sued in cost-book name. Where a cost-book company lias its origin in fraud, and a member is thereby induced to contribute to it, he may recover damages for any injury sustained by him. 1 And he may have his contract to take shares altogether rescinded, and the money paid by him recovered, if he is in a position to return the shares in the same state as when he took them. 3 He cannot, how- ever, have the latter remedy, if he has received dividends on the shares; or, if the company, having been originally unlimited, has been registered as a limited company. For, in such cases, his position, as respects a return of the shares, has been altered. 3 And a member, who alleges that the pros- pects of a cost-book undertaking were exaggerated by the directors, is not, of course, entitled to a remedy of any kind, if he has had as full an opportunity as the directors of ascertaining the real prospects. 4 And he may lose the remedy, to which he would otherwise be entitled, if he has failed to act with common prudence. 5 Where there is a substantial variation between the prospectus of a cost-book company and its rules ; and a member has become such on the faith of the prospectus ; and the com- pany is wound up ; there may be no right to place him on the list of contributories. 6 The members of a cost-book company may have a possession for rating purposes. 7 And there is no reason since the Jud. Acts why a cost-book company, although unincorporated, may not sue and be sued like any other partnership in the partner- ship name. 8 1 Clarke v. Dickson, E. B. & E. 148 ; Chester v. Spargo, 18 L. T. N. S. 314. 2 Clarke v, Dickson, u. s. ; Chester v. Spargo, v. s. 3 Clarke v. Dickson, «. s. 4 Jennings v. Brought on, 17 Beav. 234 ; 5 De G. M. & G. 120. The mine was a cost-book mine : see the report in 22 L. J. Ch. 587. 5 Robson v. Devon, 3 Jur. N. S. 576 ; 4 ib. 245. 6 See Richardson's Case, 4 W. R. 670. In an action against the direc- tors of a cost-book company for mis- representations in their prospectus, a book purporting to be a former cost- book of the company, and to contain accounts of disbursements, is not ad- missible in evidence, unless it be shown that it was, in fact, kept by the purser while he was acting as such : Shrewsbury v. Blount, 2 Man. & G. 475, 496 ; 2 Scott, N. R. 588. 7 Kittoiv v. Liskeard, L. R. 10 Q. B. 7. 8 See Escott v. Gray, 47 L. J. C. P. 606. SECT. 1.] COMPANIES — REGISTRATION. i [7 b. Registration. A company (not being a cost-book company) engaged in work- Stannary ... , . . . ~ . . j. ,. ,, , company not mg mines "within and subject to the Stannary jurisdiction, being C ost- and consisting of seven or more members, may be registered book com " o • See ante, p. 443. 2 Escott v. Gray, 47 L. J. C. P. 006. 8 32 & 33 Vict. c. 19, s. 16. 3 See Sibley v. Minton, 27 L. J. Oh. 9 S. 17. See ante. p. 449, 1 15 I COST-BOOK AND STANNARY [CHAP. XIX, Incidental provisions. Cost-book companies- forfeiture. Any share so forfeited must be carried to an account, called "The Account of Forfeited Shares;" and it is deemed to be the property of the company, and may be disposed of as the company think fit ; and any member may purchase it, if sold. 1 A statutory declaration by the purser or other agent, that the call was made, and notice given, and default and forfeiture made, is evidence of the facts therein contained as against all persons entitled to the share. And such declaration, and the receipt of the purser or other agent for the price of the share, if sold, constitute a good title to the share. The pur- chaser must be entered in the cost-book, or other books and papers of the company, as a member ; and he is thereupon deemed the holder, discharged as against the company from calls due prior to the purchase. And he is not bound to see to the application of the purchase-money ; nor is his title affected by any irregularity in the proceedings in reference to the sale. 3 Any member whose share is forfeited is nevertheless liable to pay all calls, interest, and expenses payable in respect of the same at the time of the forfeiture. 3 Independently of statute, 4 shares in a cost-book company cannot, unless the rules of the company contain an express provision to the contrary, be forfeited for non-payment of calls. 5 And, in all cases, the conditions, on which a forfeiture may take place, must be strictly pursued. c. Contribution. Purser's suit. A cost-book company, working " within and subject to the Stannary jurisdiction," 7 may also maintain a customary suit known as a ' purser's suit,' in the name of the purser or other agent, against the defaulter, for a contribution to the expenses of the working ; and, in default of payment, for a sale of the 1 S. 18. 2 S. 19. Cf.. as to relinquished shares, post, p. 474. 3 S. 20. 4 The statute only applies to com- panies within and subject to the Stan- nary jurisdiction : see ante, p. 452, n. 8 . 5 Clarke w. Hart, 6 H. L. C. 633. 6 lb. See also Watson v. Eales. 23 Beav. 294, 302, 304 ; Rule v. Jewell, IS Ch. D. 660, 602. Cf. Garden, &c, Co. v. McLister, 1 App. Cas. 39. Where a member's shares have been forfeited bond fide, he cannot be subsequently placed on the list of contributories in respect of them : Edwards' Case, 1 L. T. N. S. 399. 7 See ante, p. 443. SECT. 3.] COMPANIES — THIRD PARTIES — CONTRACT. 155 defaulter's shares. 1 And if, upon the sale, the proceeds are insufficient to satisfy the debt, costs of action, and expenses of sale, the payment of the residue may be enforced in the same manner as other judgments for payment of money are enforce- able. 2 But the only person, who can in general be made liable for contributions, is the person whose name appears in the cost-book as the owner. The purser cannot make a person liable on the mere ground, that he has agreed to become a member. 3 A member of an unregistered cost-book company, who is Contribution being sued by creditors, may, if the concern is insolvent, and he is not in arrear in respect of calls, obtain contribution from his co-adventurers through the medium of a winding-up order. 4 But an order will not be made where the applicant refuses to pay his calls, and the company is able to meet its pecuniary engagements. 5 Sect. 3.-THIRD PARTIES— CONTRACT AND TORT. a. Dealings on Credit. The customary right of the purser, or other agent of a cost- Supplying book company, to order goods on credit for the necessary purposes of e 0St -book 1 6 & 7 Will. 4, c. 106, s. 18 ; 18 & 19 purser had been a party to a com- Vict. c. 32, s. 3 ; Ord. March, 1876, tit. position deed executed by such share- Purs, and Cred. Suits, 0. 10, r. 4. holders, and had thereby released his See, as to the procedure in Purs. Suits, claim, see Lanyon v. Davey, 11 M. & ante, pp. 420, 421. W. 218. 2 18 & 19 Vict. c. 32, s. 3 : ante,-p-±-~ . 4 See Pennant, &c, Co., 15 Jut. 3 Tippet v. Johns, Tapping, 187. 1192; Bosworthon Co., 26 L, J. Ch. In Graves v. Cook (2 Jur. N. S. 475), 612 ; Wheal Anne Co., 10 W. K. 330 : the directors of a cost-book mine, S. C. 30 Beav. 601 ; Tretoil, &c., Co., 2 wanting money to work it, entered J. & II. 421 ; South Lady Bertha Co., into an agreement that they should ib. 376 : decisions under the former each take 100 shares in it at £1 per Winding-up Acts. See also Welsh Po- share ; and each of them, accordingly, tosi Co. 27 L. J. Ch. 311. An unregis- gave his I.O.U. to the purser for tered company was there registered : £ 100. An action being brought on one the registered company was wound up ; of the I.O.U.'s, it was held, that this and the unregistered company was was evidence of an account stated be- subsequently wound up under an in- tween the purser and the defendant. dependent order : ante, p. 448. For a case, in which an action by a 5 See Wyld's case, 1 Mac. & G. 1 ; purser against shareholders, as ac- 1 H. & T. 125 ; a decision under one of ceptors of a promissory note, was the former Acts, defended on the ground, that the 456 COST-BOOK AND STANNARY [CHAP. XIX. company may, of the concern has been already stated. 1 prima facie, have action against member. Defences which will not prevail. It is on this ground well settled, that he has authority, prima facie, to bind the members by dealings on credit ; and that, accordingly, unless the company be registered under the Comp. Act, 18G2, a supply- ing creditor may, prima facie, bring an action against an indi- vidual member to enforce the obligation. 3 It is no defence to such an action, that the defendant has paid all calls or contributions, which were payable by him. 3 Nor is it any defence, that the goods in question were supplied since the date of the last transfer of shares in the company ; that the purser had paid certain moneys to the plaintiff on account ; that new members of cost-book companies cannot, prima facie, be sued for debts incurred prior to the time when they join ; 4 and that the plaintiff was not, therefore, entitled to appropriate the moneys in payment of goods supplied prior to the date of the last transfer. 5 And even, if a company pur- porting to be worked on the cost-book system is being carried on with a smaller amount of capital than the amount agreed on at the time of its formation, the defendant will not be free from liability, if he has acquiesced in that course of manage- ment. Moreover, an express agreement made between the defendant and the manager or the other members, that the manager should not deal on credit ; 7 or that the defendant should incur no liability ; 8 will not, primd facie, free the defen- dant from liability. And it need hardly be said, that, in such a case, the plaintiff's ignorance, at the time he supplies 1 Ante, p. 444. 2 Proc. in Stan. (185G), Int. Not. 23. See also Ellis v. Schrnoeck, 5 Bing. 521 ; Tredwen v. Bourne, 6 M. & W. 461 (which, although not so stated in the reports, were cases of cost-book mines) ; Newton v. Daly, 1 Fos. & F. 26 ; Toll v. Lee, 4 Exch. 230 ; Northey r. John- son, 19 L. T. 104 ; German Mining Co., 4 De G. M. & G. 40, 41 ; Peel v. Thomas, 15 C. B. 714 ; Lanyon v. Smith, 3 B. & S. 938 ; Harvey v. Clough, 8 L. T. N. S. 324 ; Martyn v. Gray, 14 C. B. N. S. 824, 842 ; Escott v. Gray, 47 L. J. C. P. 606, 607. The law is the same in the case of ordinary partnerships : see ante, p. 122. 3 See Hawken v. Bourne, 8 M. & W. 703. In the judgment this was stated to be a case of a scrip mine, but a scrip mine is only another name for a cost-book mine : see ante, p. 443. 4 As to which sec infra, Sect. 4, a. (7). 5 Geake v. Jackson, 36 L. J. C. P. 108. 6 Tredwen v. Bourne, u. s. ; Haw- kins' case, 2 K. & J. 253. Cf. as to ordi- nary partnerships, ante, p. 123. 7 Hawken v. Bourne, u. s. s Peel v. Thomas, n. s. SECT. 3.] COMPANIES —THIRD PARTIES — CONTRACT. 457 the goods, that the defendant is interested in the concern, is immaterial. 1 If, however, the goods supplied are not necessary or usual Defences in the working of the mine, the person by whom, or by whose prev-'d] 1 '' 3 authority, they are ordered is alone liable for their price. 2 And, of course, a person, who supplies goods to a cost-book mine, cannot make a member liable, if he has been previously informed that that member will decline responsibility. 3 And if, in any case, the plaintiff knows of the existence of an agreement between the manager and the defendant, that the manager should not deal on credit, he cannot make the defendant liable. 4 And such an agreement, although inoperative as between a defendant and a plaintiff without notice, will, of course, be good as between the defendant and the manager. 5 In an action seeking to make a member of a cost-book com- Membership pany liable, it must, of course, be shown, that, at the time when mus Jes ° wn " the debt was contracted, his name was properly entered on the cost-book as a member ; or, in some other way, shown, that he was in fact a member, 6 or had held himself out as such. 7 Although an admission made by him, that he is a member ; or what amounts to an admission, such as the production of his signature to an agreement to purchase shares ; 8 is a circum- stance to be considered in estimating his liability; 9 if the admission be shown to have been made in error, it cannot have any effect. 10 And where by the rules of the company in question registration is necessary to constitute him a member; and he has executed an agreement to purchase shares; but he has not authorized his name to be registered ; and his name has been 1 Hawken v. Bourne, 8 M. & W. of the mine, or did acts which led the 703. captain to believe, that he was a - Tredwen v. Bourne, G M. & W. member : the captain informed the •101 : Hawken v. Bourne, 8 ib. 703. plaintiff ; and the plaintiff supplied 3 Vice v. Fleming, 1 Y. & J. 227. the goods : the defendant was held 4 Hawken v. Bourne, it, . ; Batten on Stan. Act, 1869. 11, 12 ; which, although not so stated in the 6 & 7 Will. 4, c. 106, s. 18; 18 & 19Vict.o. report, was a case of a cost-book mine. 32, s. 5 ; 32 & 33 Yict. c. 19, s. 24 ; Turner It was in the same case questioned, v. Hill, 11 Sim. 1 ; Turner ?•. Borlase, ih. whether the mere payment of the 18, 19 ; Cox's Case, 4 De G. J. & S. 56 n. deposit, without the subsequent signa- See, as to the procedure in Cred Suits, ture, would have made the defendant ante, pp. 420, 421. Where the petitioner a partner. is also a member, he is m t entitled to 2 Lanyon v. Smith, 3 B. &. S. 938 ; payment until all the creditors, not Harvey v. Clough, 8 L. T. N. S. 324. being members, are paid in full : Ord. The registration was under the re- March, 1870, tit. 1'urs. and Cred. pealed Act, 21 &22 Vict. c. 60. Suits, O. 16. r. 11. :1 Geake v. Jackson, 36 L. J. C. P. 108. 460 COST-BOOK AND STANNARY [CHAP. NIX. unsatisfied part will be apportioned rateably amongst all the members according to the number of their shares ; who are liable to pay the same accordingly. And, for the purpose of ascertaining who the members are, the registrar may call for and enforce production of the cost-book and all other papers and documents of the mine ; and examine the purser or other agent. And if such members refuse payment, it may be enforced in the same manner as other judgments for payment of money are enforceable. 1 Duke of Persons, on whose lands the Duke of Cornwall enters under the Act 7 & 8 Vict. c. 105, and who are entitled to compensa- tion and costs in respect thereof, may exercise all the privileges of a mining creditor in respect of the mines in question. 2 b. Borrowing Money. Purser or agent The prima facie power of the purser or other agent of a cost- cost-book book company to bind the members is limited to dealings on Tannot^rrimd cre( *it f° r tne necessary purposes of the concern. Cost-book facie, bind by companies are carried on by means of ready money from time borrowing . money. to time supplied by the members ; 3 and are notoriously so carried on. And, this being so, the purser or other agent 4 has no authority, prima facie, to bind the members ; and, d fortiori, no member 5 has authority, primd facie, to bind the other mem- bers ; by borrowing money on their credit. And the fact, that the necessity for the borrowing was of the most pressing kind, seems immaterial. Thus, in Haivtayne v. Bourne? a lenders' action was unsuccessful ; although the money had been borrowed for the purpose of paying their wages to labourers, who, in con- sequence of non-payment, had obtained warrants of distress on the materials belonging to the mine. 8 However, the authority in question may, it would seem, be acquired by the agreement 1 18 & 19 Vict. c. 32, s. 5 ; Orel. March, ships, ante, pp. 123, 124. 1876, tit. Purs, and Cred. Suits, 0. 10, 6 Proc. in Stan. (1856). Int. Not. r. 13 : see ante, p. 427. See, as to inter- 23. pleader, ante, p. 421. 7 7 m. & W. o9~> ; a case of a cost- - S. 65. See ante, p. 279. book mine, although not so stated fn 3 Ante, p. 444. the report. 4 Eicketts v. Bennett, 4 C. B. G8b'. 8 See also German Mining Co., 4 De 5 See lb. See, as to ordinary partner- G, M. & G. 40, 41. SECT. 3.] COMPANIES — THIRD PARTIES — CONTRACT. Ill] or acquiescence of those sought to be bound. 1 And if the person who borrows duly applies the loan for the necessary purposes of the concern, and is subsequently made liable by the lender for the amount, he is entitled to be reimbursed by the concern. 2 c. Negotiable Instruments. A fortiori the purser or other agent of a cost-book company And,&/i has no authority, primd facie, to bind the members; nor has re8 pectof any member authority, prima facie, to bind the other members ; P e g° tiaMe . J j > j- j > > instruments. by drawing or making or accepting or indorsing bills of exchange or promissory notes. 3 In Dickinson v. Valpy* where an unsuccessful action upon a bill drawn and accepted by a cost-book mining concern was brought against one of the members, the fol- lowing observations were made upon this subject : — " In the case of an ordinary trading partnership the law implies that one partner has authority to bind another by drawing and accepting bills ; but it does not follow that it is necessary for the purpose of carrying on the business of a mining company. One of several persons jointly interested in a farm has no power to bind the others by drawing or accepting bills, because it is not neces- sary, for the purposes of carrying on the farming business, that bills should be drawn or accepted. Besides this is in form a bill of exchange drawn by the company on themselves. It is, therefore, in effect, a promissory note. I think it would require more evidence to show, that the directors of such a company had power to bind the other members by promissory notes than by bills of exchange." 5 In such cases the person, who draws or makes or accepts or indorses a bill of exchange, or a promissory note, is alone liable. 6 And even, where a bill is accepted by a purser, not in his individual capacity, but by procuration for the company, the purser, if a member of the company, is personally liable. 7 Of course, however, the power to bind the member in 1 See and consider Sedgwick's Case, 4 10 B. & C. 128. 2 Jur. N. S. 919. 5 Pp. 138, 139, per Littlcdalc. J. 2 See ib. See Proc. in Stan. (185G), G Dickinson v. Valpy, 10 B. & C. Int. Not, 21. 128 ; Marc v. Charles, 5 E. & B. 978. 3 Brown v. Byers, 16 M. & W. 252 ; a 7 Nicbolls v. Diamond, 9 Exch. 154. case of a cost-book mine, although not, Cf. as to ordinary partnerships, ante, in terms, so stated in the report. p. 12o. 462 COST-BOOK AND STANNARY COMPANIES. [CHAP. XIX. question may be shown to exist. And if his conduct amounts to a representation that he has authorised the transaction, he may be liable. 1 Creditors of individual members of cost -book companies. d. Creditors of Individual Members. If judgment is recovered against a member of a cost-book company in Cornwall for a private debt ; and &fi. fa. upon such judgment is delivered to the sheriff; and the company has not been registered under the Comp. Act, 1862; the sheriff may, apparently, seize the property of the company, and sell the share and interest therein of the judgment debtor in the ordinary way. For the company is not, apparently, a public company within the meaning of the Act 1 & 2 Vict. c. HO. 2 On similar grounds shares in a cost-book mine are not, apparently, liable to be charged with a judgment debt under section 14 of the same Act. 3 It seems doubtful, whether shares in a cost-book mine can be attached in the Lord Mayor's Court. 4 Tort by cost-book company. e. Tort. Any member of a cost-book company may be sued for a nuisance occasioned by the working of the mine. 5 Where, how- ever, a plaintiff obtained a verdict and judgment in such an action, and afterwards obtained a rule nisi for an injunction, the Court discharged the rule ; it appearing, that the defendant had bond fide sold his shares before he had received notice of the application for the injunction. 6 1 Dickinson v. Valpy, 10 B. & C. 128. 2 See Lindley, 696. 3 The point was treated as doubtful in Nicholls v. Rosewarne, 6 C. B. N. S. 480. 4 See Tredinnick v. Oliver, 5 H. & N. 780. 8 See Matthews v. King, 3 H. & C. 910. 6 lb. SECT. 4.] CONTRACT AND TORT — TRANSFER. 168 Sect. 4.— TRANSFER, RELINQUISHMENT, AND DEVOLUTION. a. Transfer. (a) Powers. Any member of a cost-book company, whether registered rower to under the ComD. Act, 1862, or not, may transfer his share or ^ cost-book shares without the consent of the other members; and may^^"' } insist upon his transferee being accepted as a member in his place. And such transfer will not operate to dissolve the com- pany. 1 An unregistered company, working ' within and subject to the Stannary jurisdiction,' 3 need not, however, recognise the transfer of a fractional part of a share. 3 (/3) Contracts — Generally. Where a cost-book mine is held upon lease by one of the Cost-book /• i • i- ■ i -i i • • companies — members in trust for the individual members in proportion to 4th sect, of their shares, the interest of each member includes an interest p^uds— in the land itself, as well as in the profits of its employ ment.* lease - And, so far as it is an interest in land, a contract for the transfer of it must be in writing signed by the party to be charged, pursuant to the 4th section of the Statute of Frauds. 5 But, where a cost-book mine is held upon lease by one of the mem- bers in trust for the undertaking generally, and not for the indi- vidual members in proportion to their shares, the share of each member includes neither land, nor an interest in land, within the 4th section of the Statute of Frauds. 6 Where, however, a lease of land is granted for the purposes of a cost-book company, no trust is, except in very rare cases, formally declared in favour of > Ricketts v. Bennett, 4 C. B. 692 ; pp. 137, 133. Watson v. Spratley, 10 Excli. 222. 2 See ante, p, 443. 235 ; Clarke v. Hart, 6 H. L. C. G49 ; 3 32 & 33 Vict. c. 19, s. 15. Libri's Case, 30 L. T. 186 ; Lofthouse's 4 See Watson v. Spratley, v. g. 24(1. Case, 2 De G. & J. 73 ; Nicholls v. Rose- 5 lb. warne, 6 C. B. N. S. 489 ; Cox's Case 6 lb. ; IWell v. Jessopp, 18 C. B. 4 De G. J. & S. 55 n. ; Froc. in Stan. 336 ; Walker v. Bartlett, ib. 845, 859. (1856), Int. Not. 24; Kittow v. Lis- See ante, pp. 184, 185, where the rea- keard, L. R. 10 Q. B. 10, 16. Cf. as to sons for this distinction are stated. ordinary raining partnerships, ante. 464; COST-BOOK AND STANNARY [CHAP. XlN. the members. 1 The interest, therefore, in the great majority of cases, of each member (even where a lease, as distinguished from a license, is granted), does not include any interest in the land ; but is exclusively an interest in the profits of its employment, and in the tackle and machinery upon the land. In such cases a contract for the transfer of his interest by a member is not governed by the 4th section of the Statute of Frauds ; 2 and, in so far as Vice v. Anson 3 (the facts of which have been already stated 4 ) contains dicta to the contrary, it cannot be considered License. law. 5 Where a license, as distinguished from a lease, is granted for the purposes of a cost-book company, it seems immaterial, so far as regards the 4th section of the Statute of Frauds, whether the license is held on trust for the undertaking generally, or for the members in proportion to their shares ; or whether there has been no expression of trust whatever. In none of these cases has a member any property in the mine. He has merely a pro- perty in the ore, when, and not before, it is won from the mine. That is to say, his interest is purely a chattel interest ; 6 and a contract for the transfer of such interest does not accord- ingly seem to be within the 4th section of the Statute of Frauds. 7 In the absence of evidence to the contrary, there is a presumption that shares in a cost-book mine are not an interest in land. 8 17th sect. A contract to transfer shares in a cost-book mine is not a contract for the sale of goods, wares and merchandize within the 17th section of the Statute of Frauds. 9 Parol contract Accordingly a contract to transfer shares in a cost-book genera y gooc . m - ne -^ exce pt [ n the rare cases where the vendor has an interest in the land itself, good, although entered into by parol. 10 i Ante, p. 443. 8 See Powell v. Jessopp, 18 C. B. 2 Watson v. Spratley, 10 Exch. 222. 336 ; Hayter v. Tucker, ?/. s., 246. 3 7 B. & C. 109. D Watson v. Spratley, u. g. Cf . Pick- 4 Ante, p. 158. ering v. Appleby, 1 Com. 353. 5 SeeCuiiingi;.Flight,2Ph.613,617. I0 Watson v. Spratley. v. s. See also 6 See Walker v. Bartlett, 18 C. B. Toll v. Lee, 4 Exch. 230 ; Northey v. 845, 859 ; Hayter v. Tucker, 4 K. & J. Johnson, 19 L. T. 104 ; Kittow v. Lis- 247. See, as to mining licenses, ante, keard, L. R. 10 Q. B. 10. See Toppin pp. 2i9,et seq. v. Lomas, 16 C. B. 161. This proposi- " See and consider Watson v. Sprat- tion does not appear to be subject to ley. 10 Exch. 222. See also Walker v, any qualification ; and there do not Bartlett v. s. appear to be any grounds for the SECT. 4. J COMPANIES — TRANSFER. L65 However, the usual mode of contracting for the sale and Usual mode of . . . . . , , contracting. purchase of an interest in a cost-book mine is either through the medium of a mining broker; 1 or by each party making a memorandum of the sale in his own book, in the same way as brokers or jobbers do on the stock exchange. 2 A purchaser of shares in a cost-book company is not, unless Cost-book . , , . ,- . , , companies — where the vendor has an interest in the land itselt, entitled to a abstract of regular abstract of title to the mine.' 5 But he is entitled to tltle - such evidence of the constitution of the company, and of the nature of the title under which the mine is worked, as will show, that the subject-matter of the purchase is what it pro- fesses to be, and that the proposed form of transfer will give him a valid title to the shares.* In an action for not accepting shares in a cost-book mine, Delivery ana . v i • i payment. evidence is admissible of an usage among brokers in sucli shares, that, in contracts for their sale and purchase, the delivery takes place at the time appointed for payment, and that the purchaser cannot demand delivery before that time. 3 Where a number of shares in one cost-book mine have been Fraud — purchased on the faith of untrue representations by the vendor ; and the purchaser has subsequently parted with a portion of them ; he is entitled to rescind the sale as regards the portion which he has retained. For those parted with and those re- tained fluctuate in value together. But a sale in one transaction of several kinds of shares will not be set aside for misrepre- sentation, unless the person seeking relief is able to restore all the shares which he has purchased. For some may become profitable, and others worthless. 7 Where a plaintiff is entitled to have a sale of shares rescinded, he is not, in order to preserve his right, obliged, after he issues his writ, to pay calls on them. And, if they are forfeited for non-payment of such calls, the doubts expressed by Erie, J., in Northey 4 //;. t\ Johnson, 19 L. T. 104. 5 Field v. Lelean, >i. s. 1 See Field v. Lelean. G H. & N. 6 Maturin r. Tredenniek. 12 W. R. (117. 740. - See Watson r. Spratley, 10 Exch. 7 lb. Cf. the law, where a member 222 231. of a cost-book company has been in- 3 Curling i: Flight, 2 Ph. 613, G17, duced to join through fraud by the 618, promoters, ante, p. 44G. rescission. Kit) COST-BOOK AND STANNARY [CHAP. XIX. loss must ; at all events if the defendant knows of their having been made ; fall upon the latter. 1 (y) Completion— Special Contracts. Cost-book It appears to be competent, prima facie, in the great majority companies — ■ o r , P . ■, , . parol transfer ot cas es, for a member ol a cost-book company to transfer, as generally good. [^ [ s competent for him to agree to transfer, his interest by Usual mode of parol. 2 However, the general mode of effecting a transfer is substitution of ^ v tne purser or other agent substituting the name of the names in cost- transferee for that of the transferor in the cost-book ; his book > authority for that purpose being either the deposit in the company's office of a formal deed of assignment ; or, more com- monly, a written or verbal direction to the purser or other agent from the transferor, and a written or verbal acceptance of the shares by the transferee. 3 In general, each party to a transfer may, by an action for specific performance, compel the other to concur in procuring the substitution of names to be made ; and he may recover for any injury sustained by the default of the other in that respect. 4 But, of course, fraud or concealment may be a bar to any such action. 5 If, on a sale being effected, a written direction is given to the purser or other agent to sub- stitute the name of the transferee for that of the transferor; and a blank is left for the name of the transferee ; the vendee is not bound to procure his own name to be registered. 6 But, if, before he procures some name to be registered, a call is made on the vendor, the vendee is bound to indemnify him in respect of it. 7 Stamps. A registered transfer of shares in a cost-book company may, it seems, be effectual without a stamp. 8 But any request or 1 Maturin v. Tredcnnick, 12 W. R. r. Bartlett, ib. 845 ; Lofthouse's Case, 740. For the form of the order, see 2 De G. & J. 71, 72 ; "Watson r. Eales, 1»- 742. 23 Bear. 296 ; Nicholls v. Rosewame, 6 2 See "Watson v. Spratley, 10 Exch. C. B.N. S. 480. See also Proc. in Stan. 222. See also Toll v. Lee, 4 Exch. 230 ; (1856), Int. Not. 24 ; Kitiow c.Liskeard, Northey v. Johnson, 19 L. T. 104 ; v. s. Cf. Northey r. Johnson, u. s. Kittow v. Liskcard, L. B. 10 Q. B. 10 ; < Tippet r. Johns, Tapping, 187 ; ante, p. 4G4. Broc. in Stan. (1856), Int. Not. 25. 3 See Mare v. Malady, 1 M. & Cr. 5 De Castro's Case, 2 Jur. N". S. 1203. 500 ; Curling v. Flight, 6 Ha. 45 ; 2 Ph. G Walker v. Bartlett, 18 C. B. 845. 614 ; Toll r. Lee, n. *., 230 ; Watson r. '' II). Spratley. it. *., 222, 225, 226 ; Powell 8 See Toll v. Lee, 4 Exch. 230. Cf. v. Jessopp. 18 C. B. 338, 330 ; Walker Walker r. Bartlett. 18 C. B. 845. SECT. 4.] COMPANIES — TRANSFER. 117 authority to the purser or other agent of a cost-book company to enter or register any transfer of a share, or part of a share ; or any notice to such purser or agent of any such transfer ; must have a sixpenny stamp. 1 And non-compliance with this obliga- tion entails a penalty of £20. 3 Although cost-book shares cannot be disposed of by the mere Entry in cost- . book is prima entry of a transfer, 8 an entry by the purser or other agent is, fade evidence in all cases, as between the members themselves, primd facie ° er " evidence of a transfer having been made. 4 As between the transferor and the transferee the consequences Commence- ment of of not procuring the substitution of names are immaterial. liability and Indeed it has been decided, that a proviso, that no transfer shall be complete unless entered in the cost-book, and acknow- ledged by the purser, is nothing more than form/' The conse- quences with respect to the company or its creditors may, however, be serious. For the registered owner is alone liable, prima facie, in respect as well of calls or contributions, as of claims by creditors ; 7 and he may alone be liable to be placed on the list of contributories. 8 He may, on the other hand, be alone entitled to the benefits of membership. 9 Prima facie, therefore, the transferor becomes free from all liability, and becomes disentitled to all benefit, in respect of future trans- actions as soon as he has procured his transferee's name to be registered. 10 Conversely, a transferee, is not liable, prima facie, either to the company, or to his transferor, or to creditors, for 1 33 lii. respects creditors, however, he musl not < See Tippet v. Johns. Tapping, 1ST ; continue to hold himself out as a mem- ante, p. 4,">7. ber. Non-registration may also somc- 8 See Humby's ease. 28 L. J. Ch. times produce serious consequences 875. Cf. De Castro's Case, 2 Jur. X. S. with respect to creditors of the in- 1203. dividual members : sec Nicholls v. 9 The rules of many companies pro- Rosewarne, 6 C. B. N. S. 480; ante, vide that a transferee shall not be p. 462. ji H 2 408 COST-BOOK AND STANNARY [CHAP. XIX. calls or contributions, or debts, which ought to have been paid by the transferor. 1 Nor, on his refusal to pay such calls or contributions, can the company declare his shares to be for- feited. 2 Special However, the prima facie position of parties may be altered contracts. . , . „ „ by agreement or conduct at or subsequently to a transfer ol shares. A transferee may agree to become liable in respect of past transactions ; or he may so conduct himself as to recognize or adopt them. 3 And where the form of transfer of shares in a cost-book company gave to the transferee the transferor's interest in all moneys in hand, and in everything whatever connected with the concern ; and provided, that the transferee should hold on the same conditions as his transferor had held ; and a member transferred his shares in that form ; it was held, that, as between the transferee and his transferor and the other members, the liability of the transferee could not be limited to the time from which he took the transfer. 4 Indeed it has been said, that wherever partnership articles provide, that a partner may transfer his shares, they mean that he may so transfer them as to put the transferee in his place as to antecedent liability. 5 A transferee may also, in respect of claims by creditors, be in- directly affected by past transactions ; in consequence of the lien, which supplying creditors may enforce on the machinery and materials for the time being belonging to the company. 6 On the other hand, as in the case of a transfer by way of mort- gage, the transferor may agree to indemnify the transferee in respect of future transactions. 7 1 Thomas v. Clark, IS C. B. <3<>2 ; Cranworth : see also Taylor v. Ifill, 8 Watson v. Eales, 23 Beav. 294, 302 ; L. T. N. S. 148. The rule is not Lanyon v. Smith, 3 B. & S. 945 ; Cox's affected by the circumstance that the Case, 4 De G-. J. & S. 55, n. transferor may himself have been one - Watson v. Eales, u.s. The fact, of the creditors : Taylor r. Ifill, u, s. that the transferee is only the mort- 6 Cox's Case. >/. •?., 5G n. ; Geake v. gagee of the shares, is immaterial, ib. Jackson, 36 L. J. C. P. 109; ante, 3 Cox's Case, 4 De G. J. & S. 55 n. p. 459. 4 Mayhew's Case, 5 De G. M. & G. 1 See Betteley r. Stainsby, L. E. 2 C. 837. Cf. Fenn's Case, 4 ib. 285, 294. P. 5(38 ; where to an action on such It need hardly be said, that no such an agreement there was an unsuccess- provision can affect the rights of third ful plea of bankruptcy under the Act parties : see Mayhew's Case, «. s., of 1849. Cf. special contracts in the 849. case of Relinquishment, iyfra b, (/3). 5 See Mayhew's Case. u. s., per Lord SECT. 4.] COMPANIES — TRANSFER. 1-69 A transferor and a transferee cannot both be made contribu- Botn parties not liable. tories in respect of the same shares. 1 (b) Inoperative Transfers — Frauds upon Third Parties. An unregistered cost-book company, working "within and Stannary ..•,..„.-! • companies - subject to the stannary jurisdiction, ~ need not recognize inoperative a transfer of a share until all calls made in respect of it, with interest and expenses, have been paid. 3 A transfer of shares in a stannary company made for the Frauds upon purpose of getting rid of the further liability of the share- holder, as such, fur a nominal or no consideration, or to a person without any apparent pecuniary ability to pay the reasonable expenses of working the mine, or to a person in the menial or domestic service of the transferor, is fraudu- lent ; and need not be recognized by the company, or by the Court on the winding-up of the company, whether the company is registered or unregistered.^ Assuming, however, that a particular transfer is fraudulent, on the ground that the transferee is insolvent ; if it has been acted on and recognized by the company, with knowledge of the insolvency ; it cannot be set aside in the winding-up ; nor can the name of the trans- feror be put on the list of contributories. 5 And where a person not already a member purchases shares in a cost-book com- pany in the name of a nominee ; and does so either to prevent its being known that he is trafficking in shares of the com- pany, or even (it seems) to escape liability; he cannot be made a contributory. If, in order to delude the public into an exaggerated estimate of the number of shares in a cost-book company, a person procures some shares of which he is the owner to be transferred into and registered in the names of mere nominees for him, he may, in the event of the company 1 See Bowen's Case. 1 W. R. 800. 3 32 & 38 Vict. c. I'.'. -. 1 1. As to giving notice under the Met. ' S. 85. Mines Reg. Act. 1872, of a change of •'' Ctiynoweth's Case. 15 Ch. P. 18. members, seejW. Chap. XXIV.. Sect. Sec also Lofthouse's < !ase, 2 De G. & J. 9, (a). 0!>, 73, 74. ; See ante, p. 413. 6 King's Case. ; Watson v. Spratley, 2 See Batten, 40. v. s, 3 Frank Mills Co., 23 Ch. D. 52. ' Frank Mills Co., }/. s. 4 Watson v. Spratley, 10 Exch. 226, 8 lb. 233. 9 Batten, 40 ; Watson v. Spratley, 5 See Frank Mills Co.. u. s. ; where v. .«. there was a valuation at breaking-up lu Batten, 48, 49. 1 7 :2 COST-BOOK AND STANNABY [cHAr. xix. Action for account. Special contracts — waiver of account. Waiver of payment. member to the company, it is, primA facie, payable imme- diately. But, if a debt is found due from the company to the member; although it is due immediately; it is not payable, prima facie, until the expiration of two years. And the continuing members are personally liable, prima facie, to pay it at the end of the two years ; and are so liable, although the assets of the company may be then exhausted. 1 A member relinquishing his shares may also have an action to have his proportion of the assets ascertained and paid.- It is, of course, open to a member, upon relinquishing his shares, to agree with the continuing members, that no account shall be taken between them. Where such an agreement is made, the relinquishing member cannot subsequently claim his proportion of the assets. Nor, on the other hand, can he be subsequently rendered liable for calls ; although made prior to the relinquishment. 3 The rules of a cost-book company provided, that a member might determine his liability upon giving notice in writing to the purser, and signing a relinquishment of all claims on the company in respect of the shares ; and the pro- spectus contained statements to a similar effect. A member relinquished his shares in accordance with this provision ; and the company was subsequently wound up. It was intimated, that the provision would not have applied, if the relinquishment had been fraudulent ; and would probably not have applied, if the operations of the company had previously ceased, or if there had been a simultaneous relinquishment by all the members. 4 But, in the absence of these special circumstances, it was held, that the relinquishing member could not, as between himself and the other members, be made liable even for the debts existing at the time of the relinquishment. 5 Where the members of a cost-book company, some of whose shareholders were in arrear in respect of calls, agreed, that, if a member in arrear relinquished his shares, he might, within a limited time, redeem so many as, at the amount of former calls, 1 Palmer's Case, 7 Ch. 286. - Edwards' Case, 1 L. T. N. S. 399. :1 lb. 4 See 4 De G. M. & G. 29(1. per Knight-Bruce, L.J. s Fenn's Case, 4 De G. M. k G. 285. See also Mavlie\v*s Case. 5 lb. 837 ; Bodmin United Mines. 23 Bear. 379, 380,381. SECT. 1.] COMPANIES — RELINQUISHMENT. 173 would equal the amount paid by him ; and no provision was made for payment of the calls then due ; and certain members relin- quished accordingly, and asserted their intention to redeem, but took no actual steps to redeem within the limited time ; and the company was subsequently wound up ; it was held, that the re- linquishing members could not, the transaction having been bond fide, be put upon the list of contributories. 1 And where the purser of a company was authorized to conduct all correspond- ence ; and a member desired to relinquish ; and the purser wrote to him, stating the sum which he was to pay as his pro- portion of the liabilities ; and he paid that sum, and then relinquished ; it was held, that he became exempt from all liability as a member ; although the rules of the company provided, that the affairs should be managed by a committee, and although the sum in question was less than the proper proportion. 2 (y) Completion. A member who has relinquished his shares is entitled to Cost-book have his name removed from the list of members. 3 companies— removal of A relinquishment does not affect the liability of the relin- name - quishing member to the then existing creditors of the concern. 4 End of But, as in the case of transfer, 5 a member of a cost-book com- ia " lt; " pany gets rid of all liability in respect of future transactions, as soon as he has relinquished. It has been said, that, where shares are relinquished, the company are under no obligation to save the relinquishing member harmless from contracts entered into while he was a member; except only in the way of con- tribution, as in the case of other partnerships. 7 But it is presumed, that the company would be free from such obligation only in case the relinquishing member had not, upon relinquish- 1 Bodmin United Mine*. 23 Beav. : > Ante, p. 4(17. 370, 381, et seq. G Cox's Case, 4 De G. J. & B. 56 n. - Birch's Case. 28 L. J. Ch. 894. Cf. See Xorthey v. Johnson. 19 L. T. 204. special contracts in the ease of transfer. As respects creditors, however, he ante, p. 468. must not continue to hold himself out 3 Birch's Case. 2 De G. & J. 10. as a member. 4 See Bodmin United Mines. 2:? ' Cox's Case. 4 Do G. J. & S. "j n, Beav. 378. 47-1 COST-EOOK AND STANNARY COMPANIES — [CHAP. XIX. Disposal of relinquished share in staunary company. ment, paid to the company the balance (if any) found due from him upon taking the usual accounts. 1 Where a share in an unregistered cost-book company, work- ing " within and subject to the stannary jurisdiction," 2 is relin- quished, it must be carried to an account, called "The Account of Relinquished Shares ;" and it is deemed to be the property of the company, and may be disposed of as the company think fit ; and any member may purchase it, if sold. 3 A statutory declaration in writing by the purser or other agent of the company, that a share has been relinquished, is sufficient evidence of the facts therein stated as against all persons interested in the share. And that declaration, and the receipt of the purser for the price of the share, if sold, constitute a good title thereto. The purchaser must be entered in the cost-book as the holder of the share ; and he is thereupon discharged as against the company from all unpaid calls, interest, and expenses, due to the company in respect thereof accrued before the purchase. And he is not bound to see to the application of the purchase- money; nor is his title affected by any irregularity in the proceedings in reference to the sale. 1 c. Devolution. (a) Bankruptcy. Bankruptcy Q n ^he same principle, that a voluntary transfer of a share of member L x does not in a cost-book company will not ; 5 the bankruptcy of a member, book company, and the vesting of his share in his trustee, will not ; operate to dissolve the company. (/3) Death. Nor death. For the same reason the death of a member of a cost-book company, and the devolution of his share, will not operate to 1 See ante, p. 471. The registration of a cost-book company under a limited liability Act has no effect on the lia- bility of a member, who has previously transferred or relinquished his shares : see ante, p. -148. '-' See ante. p. 443. 3 82 & 33 Vict. c. 10. s. 21. 4 S. 23. Cf. as to forfeited shares, ante, p. 454. s See ante, p. 463. Tippet t: Johns. Tapping. 180. SECT. 5,] DEVOLUTION — DISSOLUTION. 475 dissolve the company. 1 In fact the doctrine of delectus personce in no case applies to a cost -book company. If the interest of a member of a cost-book company includes Interest in an interest in the land itself, which seldom happens, 2 and against personalty. which there is a presumption, 3 the interest in the land itself will on his death be treated as personal estate. 1 In the great ma- Mortmain jority of cases shares in a cost-book company may be validly bequeathed to a charity ; the interest of the owner of such shares seldom including an interest in the land itself. 5 It is otherwise in the rare instances, in which a lease of a cost-book mine is held in trust for the individual members in proportion to their shares, 6 Sect. 5.— DISSOLUTION. a. Sale. Any unregistered company, working " within and subject to Stannary the stannary jurisdiction," 7 may. by special resolution, 8 to which Be u its " three-fourths in value of the members consent in writing or at i n-0 i' ert - v - a meeting, sell the machinery and materials, with or without the interest of the company in the leases or sett, as a going concern. But such sale must be by public auction ; and due notice must be given by public advertisement in some local paper, and in some paper specially relating to mining companies, for two successive weeks before the sale ; and no such power is allowed to prejudice the rights of lessors or creditors. 9 And any member, or any creditor in a creditor's suit, may, in a proper case, obtain an injunction to restrain the sale of machinery and other effects on a mine, or to restrain the sale of setts. 10 And if the company is a cost-book company, a creditor may, in addition, have an injunction to restrain the removal of the machinery and other effects, or to restrain the removal of the ores. 11 1 lb. ' ; See Hayter c. Tucker, u. .?. 2 See ante, p. 4C>4. ? See ante. p. 448. 3 See lb. 8 Ante, p. 449. 4 See ante, p. 2<>4. 9 32&33 Vict, c. 19, s. 24. See Hayter 5 See Hayter v. Tucker. 4 K. & J. v. Tucker, «. s., 247. 243, 246, 251 ; referred to, ante, p. 264 : 10 32 & 33 Vict. c. 19, s. 3(5. see also ante, p. 464. " Ord. March, 1876, tit. ' Purs, and 470 COST-BOOK AND STANNARY [chap. XIX. Generally. Stannary companies- former member. Wages of miners, &c. Disputed debts or claims. b. Winding-up. Stannary companies, whether registered or not, may be wound up in the Vice- Warden's Court, or in the Chancery Division of the High Court. 1 And, for the purpose of enabling a winding-up order to be made, an unregistered stannary cost- book company is deemed to be unable to pay its debts, if a decree or order absolute for the sale of its machinery, materials, and effects has been made in a creditor's suit in the Vice- Warden's Court. 2 Cost-book companies working in England (but not "within and subject to the stannary jurisdiction " 3 ), or working in Wales, may, whether registered or not, be wound up in the Chancery Division of the High Court. 4 The Court may, at any time after the presentation of a petition to wind up a company, restrain further proceedings against it." J Where an unregistered stannary company is being wound up, a former member is not liable to contribute to the assets, if he has ceased to be a member for two years before the mine has ceased to be worked, or before the date of the winding-up order. Accordingly a member of a cost-book mine in Cornwall, who had ceased to be a member more than two years before an order for winding up, was held not liable to be put on the list of con- tributories as a past member ; although he had not so ceased for two years before the mine ceased to be worked. 7 Where a stannary company, whether registered or not, is being wound up, the amount (if any) due at the date of the winding-up order to miners, artisans, and labourers employed in or about the mine, in respect of wages or other earnings, not exceeding three months' wages or earnings, is payable in priority to all other debts. 8 If, in the course of proving the debts and claims of creditors in the Vice-Warden's Court, any debt or claim is disputed, or ap- Cred. Suits,' 0. 14. A list of injunctions is required to be exhibited at the Registrar's office for the inspection of all applicants : ib. See ante, p. 422. 1 Comp. Act, 1SC.2, ss. 70. 81. 199. See ante, pp. 422, 425. 2 Comp. Act, 18C2. s. 199. 3 See ante, p. 443. 4 Comp. Act. 18(52, ss. 79, 81, 100. A company cannot, if unregistered, be wound up, unless it consists of more than seven members : s. 19!). 5 S. 85. ' ; 32 & 33 Vict. c. 19. s. 25. "' Chynoweth's Case, 15 Ch. D. 13. s 32 & 33 Vict, c. 19. s. 26. SECT. 5.] COMr-AXIES — DISSOLUTION". 17 7 pears to be open to question, the Court may adjudicate upon it. The Court also has power, incidentally, to decide upon the validity and extent of any lien or charge claimed by any creditor on any property of the company in respect of such debt ; and to make binding declarations of right. And for determining any ques- tion the Vice-Warden may direct and settle any action or issue. And the finding of the jury in such action or issue is conclusive of the facts found, unless the judge who tries it makes known to the Vice-Warden that he was not satisfied with the finding ; or unless it appears to the Vice-Warden, that, in consequence of miscarriage, accident, or the subsequent discovery of fresh material evidence, such finding ought not to be conclusive. 1 And if, after an order for winding up in the Vice- Warden's Interpleader. Court, it appears that any person claims any property in, or any lien upon, any of the machinery, materials, ores, or effects on the mine, or on premises occupied by the company in connection with the mine, or to which the company was at the time of the order primd facie entitled, the Vice-Warden or Registrar may adjudicate on such claim by interpleader. 3 And any action or issue directed upon such interpleader may be tried in the Vice- Warden's Court, or at the assizes or sittings in London or Middlesex before a judge of the High Court. 3 Where several companies are in course of liquidation by the Several Stannaries Court, if a contributory of one of them is a creditor of companies. another, the Vice-Warden may direct that the debt be attached, and payment suspended for a time certain, as a security for pay- ment of the calls which may in the course of the liquidation become due from him to the company of which he is a con- tributory ; and the amount may be made applicable and applied to such payment in due course. But no order of attachment is allowed to prejudice any claim which the indebted company may have by way of set-off or otherwise ; or any claim of lien or specific charge on the debt in favour of any third person. 4 1 Comp. Act, 1862, s. 108. as to the winding up of Cost-book 2 S. 116. and Stannary companies was in many 3 lb. respects anomalous, and deserves men- * 32 &33 Vict. c. 19, s. 34. As to affi- tion. The Act 11 , lb. p. 366. 7 lb. p. 365. s 1 & 2 Vict. c. 43, s. 45. fl 8. 53 ; C. award, sch. 2. rr, 16, 17 ; I. award, sch. 2. rr. 16, 17 ; Q. award. sch. 2. r. 6. 10 24 & 25 Vict. c. 40, s. 4. 11 50 Geo. 3, c. Sfi, s. 7 ; 1 & 2 Vict. c. 43, s. 52 ; 24 & 25 Vict. c. 40, s. 4 ; 34 & 35 Vict, c. 85, s. 36. 12 59 Geo. 3, c. 86, s. 8 ; 1 & 2 Vict, c. 43, s. 52 ; 24 & 25 Vict. c. 40, s. 4 ; 34 & 35 Vict. c. 85, s. 31!. 13 See A.-G. v. Jackson, 5 Ha. 355, 3(38. » 24 & 25 Vict. c. 40. s. 5. CHAr. XX.] RIGHTS AND CUSTOMS. 4S7 person to sue. 1 The Crown may also proceed by informa- tion. 2 (/3) Leases. The Commissioners of Woods are empowered to grant leases Leases of to free miners of any quarries in the Forest for twenty-one years; subject to such rent and conditions as they think proper. 3 They may also grant leases to free miners 1 for twenty-one Other lea- e& years of the right to get clay or sand from the open or waste lands of the Forest. 5 And they may grant to the person or persons entitled to any pit, level, quarry, or work, leases for twenty-one years of the right to get clay or sand therein. But the last-mentioned leases ; and the right to work the pit, level, quarry, or work in question ; must always be vested in the same person or persons. 6 They may also grant leases for twenty-one years of any part of the open or waste land of the Forest for the purpose of erecting kilns or other works for the manufacture and burning of the clay into bricks or tiles. 7 All the leases so authorised must be made subject to such rents and conditions as the Commissioners think fit. But the rents must be reserved to the Crown free of all taxes and assessments; and the leases must contain conditions of re-entry on non-payment of the rent or non-observance of the conditions; and they must be enrolled in the Office of Land Revenues, and entered in the office of tli2 Commissioners of Woods. 8 The Commissioners may also grant leases to free miners, whether of mines or quarries, for thirty-one years, of any part (not exceeding six acres for a coal or iron mine, and one acre and a half for a quarry), of the uninclosed waste land of the Forest, for any purposes connected with the con- venient working of any mine or quarry. And every such lease may contain an agreement for the renewal thereof. Every such lease must be enrolled. 9 And, if granted in connexion with a 1 Seymour v. Morrell, 17 L. T. 130; * Or to any other person or persons ; 24 & 25 Vict. c. 10. s. 5. see 1 & 2 Vict. c. 43, s. 84. 2 59 Geo. 3, c. 8G, s. 10. Non-pay- 5 S. 84 ; 24 &26 Vict. c.40,s. 2. ment also entails the liability to for- 6 24 & 25 Vict. c. 40. s. 17. feiture : see infra (Q. 7 lb. 3 1 & 2 Vict. c. 43, s. S3 ; 24 & 25 s Kt2 Vict. c. 43. s. 84. Vict. c. 40, s. 2. : ' S. 2." : 24 & 25 Vict. c. 40. s. 6. 488 GLOUCESTERSHIRE [CHAP. XX < .Recovery of rent or royalty. coal or iron gale, a memorandum of the grant must be entered in the ' Surface Boundary Book,' and marked on the copy of engraved plans, kept at the Gaveller's office. 1 The amount of any rent or royalty payable under any lease, not exceeding £50, may be recovered in the County Court, 3 Not subject to rents, &c. Subject to reDts, &c. (y) Liberties and Licenses. Every coal orirongalee may make and use ail necessary levels, drifts, drains, ' cuts-out,' 3 water-courses, pits, shafts, and pit- heaps ; and use such heap room, as may be sufficient for the purposes of his workings. 4 But before any new works can be opened, the situation and extent of the ground to be occupied by each pit or level mound must be determined by the Gaveller or Deputy. 5 Every quarry galee or lessee may, in like manner, make and use all necessary roads, drains, and spoil banks. 6 Upon obtaining the previous sanction in writing of the Com- missioners of Woods, a coal or iron galee, or a quarry galee or lessee, may make and use all such railroads and other roads as the Gaveller or Deputy may deem requisite for his workings.? And, upon obtaining the like sanction, a coal or iron galee may erect any steam or fire-engine within any inclosure, or within sixty yards from the fence of any inclosure. 8 However, the erection of steam-engines or dwelling-houses in inclosed land is unlawful without the previous consent in writing of the owner. 9 And where a coal or iron gale, pit, or level, is opened within inclosed land, no building can be erected or work made, except such as the Gaveller may consider absolutely necessary ; and in the manner least injurious to the inclosed land. 10 The Commissioners of Woods are empowered, upon such rents, 1 C. award, sch. 2, r. 10; I. award, sch. 2, r. 10. 2 24 & 25 Vict. c. 40. s. 5. 3 As to the inclination of ' cuts-out,' sec C. award, sch. 2, r. 22 ; I. award, sch. 2, r. 20. 4 C. award, sch. 2, r. 1 ; 1. award, sch. 2, r. 1. 5 C. award, sch. 2, r. 10 ; I. award, sch. 2. r. 10. 6 Q. award, sch. 2, r. 1. 7 C. award, sch. 2, r. 3 ; I. award, sch. 2. r. 3 ; Q. award, sch. 2, r. 2. 8 C. award, sch. 2, r. 7; I. award. sch. 2, r. 7. 1 & 2 Vict, c. 43, s. 69. 10 C. award, sch. 2, r. 23 ; I. award, sch. 2, r. 21. As to liberties incident to the coal and iron gales confirmed by the awards of 1841, see C. award, sch. 3 ; I. award, sch. 3. CHAr. XX.] EIGHTS AND CUSTOMS. ^gg conditions, and regulations as they think fit, to grant licenses to sink, open, work, and use pits, shafts, or levels ; and to make roads ; and to use rights of way, water, air, outstroke, 1 instroke, 3 or other easements for working and disposing of the produce of any gale or quarry ; in or under any of the waste or in- closed lands of the Crown in the Forest; or under any mine or quarry comprised in any existing gale or lease. But the licensee must do as little damage as ma} 7 be. And he must compensate all persons who may he injured. And, on ceasing to use or require the easement in question, he must restore the land to its former condition, unless required by the Gaveller or Deputy to leave it in its then present condition. Every such license is required to be entered in the books of the Gaveller or Deputy ; and to be enrolled. 3 The amount of any rent or royalty payable under any license, not exceeding ,£50, may be recovered in the Countv Court. 4 (5) Rides as to Working. Every galee of an unopened coal or iron gale is obliged to Workings. bond fide commence opening the same within five years from the date of his grant. But this time may, in the case of an unavoidable or unforeseen mining accident or impediment occurring, or in the case of any other reasonable cause of delay being proved to the satisfaction of the Gaveller, be extended. Disputes as to whether there has been a bond fide opening, or as to an extension of time, are determinable by arbitration. Every coal or iron galee, and every quarry galee or lessee, is obliged to work in a fair, orderly, and workmanlike manner; and according to the best and most improved system for the time being ; and not to desist from working for five years at any one time after the vein in question has been gained. 6 A quarry galee or lessee must not overrun or commit any waste or spoil of stone; and he must not interrupt or interfere with any public footpath, or any road not properly belonging to his 1 See ante, p. 238. 4 24 & 25 Vict. c. 40, s. 5. - See ante, p. 231. s Award of 1871. 3 1 & 2 Vict, c. 43, s. 65 ; 24 & 25 6 C. award, sch. 2, r. 9 ; I. award, Vict. c. 40, s. 15. sch. 2. r. 9 ; Q. award, sch. 2, r. 5. 190 GLOUCESTERSHIRE [CHAP. XX. quarry. 1 Nor must he, in working near the boundary of any inclosure, carry forward his workings, so as to injure the inclo- sure, or the wall or other fence or boundary thereof; without the consent in writing of the Commissioners of Woods. And he must leave so much space on the outside of any such in- closure, as may be necessary for the protection of the boundaries, and for the continuance of any adjoining carriage or bridle road or footpath. 3 Every galee of a coal gale created sub- sequently to the awards of 1841 is obliged to leave barriers of coal in each vein, of such width and in such situations, as the Gaveller or Deputy may from time to time direct. 3 Discontinuance In the event of any coal or iron gale, which is drained bv a ot workings. . J steam-engine, or other machinery, and which lies above any other gale also worked by a steam-engine, being worked out or abandoned before the lower gale, the holder of the upper gale is obliged to leave at the office of the Gaveller three months' previous notice in writing of his intention to discontinue the working of the engine. 1 And every galee of a coal or iron gale created subsequently to the awards of 1841 is obliged, on abandoning or disusing a level pit or other work opened by him, to remove all unnecessary buildings and works, and to smooth the surface of the ground ; and to set up upon or about any such abandoned or disused work such walls and fences or other protection, as the Gaveller or Deputy may deem necessary for the safety of cattle. And, upon refusing or neglecting to do these acts within three months after notice, they may be done at his expense. 5 And the Gaveller or Deputy, or the Verderers, have a general authority to order the removal of buildings and works, which are no longer necessary for the working of mines or quarries. But the owner of such buildings or works is entitled to the materials. Special rules. The working of gales created subsequently to the awards of 1841 may also be made subject to such further special rules, as the Gaveller or Deputy may, with the approval in writing of the Commissioners of Woods, in each case think necessary. 7 1 Q. award, sch. 2. r. .". s C. award, sch. 2. r. 12 ; I. award - E. S. sch. 2. r. 12. 3 C. award, sch. 2, r. IS. « 1 & 2 Vict. c. 43, s. 815. 4 R. 8 ; I. award, sch. 2. r. 8. ~> S. 56. CHAP. XX.] RIGHTS AND CUSTOMS. j()] The obligation to observe the rules, subject to which a gale Remedies is held, is a personal obligation on the person for the time being compliance, in actual possession, or receipt of the proceeds of the gale ; whether as owner, lessee, under-lessee, or otherwise. 1 Com- pliance with the rules may be enforced by an action in the nature of an action of covenant ; 3 or by an injunction in the Queen's Bench Division ; 3 at the suit of the Crown. 1 (e) Transfer and Devolution. Galees may sell, assign, transfer and dispose of their gales, Generally. either by deed or will, to each other, or to any other person or persons ; and lessees of quarries have similar rights.'' Delay is fatal to the right of enforcing a contract to sell or purchase a gale. G Transfers of gales, or of leases of quarries, inter vivos, are required to be entered within three months in the books of the Gaveller or Deputy ; 7 and unregistered transfers are void. 8 The Gaveller or Deputy may refuse to register the transfer of a gale or lease until the rent or royalty payable in respect thereof has been paid. And, where a transfer or devolution has already taken place otherwise than by deed requiring registra- tion, as by will or descent, he may refuse to register the subse- quent transfer, unless the deed effecting it contains a recital of the circumstances under which the unregistered transfer or de- volution took place. 10 Persons proposing to purchase may ascer- tain, whether payments are in arrear, upon applying to the Gaveller or Deputy. 11 The Commissioners of Woods may, at such rent and on such Renewals terms as maybe agreed on, grant renewals of leases of quarries, i ea sel for terms not exceeding twenty-one years, to the assignees of 1 24 & 25 Vict. c. 40, s. 4. form of the minute to be Brought for 2 J h. registration, see sched. to 24 & 25 3 I & 2 Vict. c. 43, s. 29. See Ross Vict. c. 40 : see also ss. 10, 12. 13, of v. Rugge-Price, 1 Ex. D. 2(1'.) ; Brain v. that Act. Thomas, 50 L. J. Q. B. 6G2. s 24 & 25 Vict, c. 40, s. 14. The 4 Forfeiture may also ensue on non- Commissioners of Woods may, however, compliance : see infra (0. authorize nunc pro tunc entries : 1 & 2 5 1 & 2 Vict. c. 43, s. 23. Vict. c. 43, s. 59. 6 Alloway v. Braine, 26 Beav. 575. 9 24 & 25 Vict. c. 40. s. 9. See ante, pp. 194, 195. 10 S. 11. M & 2 Vict. c. 43, s. 58. For the " S. 9. 492 GLOUCESTERSHIRE [CHAP. XX. free miners; although such assignees be not themselves free miners. 1 (() Forfeiture and Surrender. Forfeiture. Non-payment of the rents or royalties in respect of gales entails the liability to forfeiture, and to the right of the Crown to re-enter. 2 And, although the Court may possibly have the right to relieve against the forfeiture, if the arrears of rent are tendered, or proceedings are taken, by the evicted galee, within six months, no relief will be given if more than six months are allowed to elapse before tendering the arrears or taking pro- ceedings. 3 In like manner, unless the rules subject to which gales are held are complied with, the gale in respect of which default is made is liable to be forfeited, and the galee to be evicted by the Crown. 4 Where a gale has become liable to forfeiture, the forfeiture is complete on service of a notice to that effect ; and an actual re-entry on the part of the Crown is Re-gales, not necessary. 5 Forfeited gales of coal or iron may be re- galed. 6 Surrender. The galee of a gale of coal or iron confirmed by the awards of 1841 may surrender it at the end of any year, on giving six months' previous notice in writing, and leaving the same at the Gaveller's office. 7 The holder of a subsequent coal or iron gale may surrender it at the end of two years from the grant thereof, on giving three months' previous notice ; or at the end of any sub- sequent year, on giving six months' previous notice ; such notices to be in writing, and to be left at the Gaveller's office. 8 The galee or lessee of a quarry may surrender it at Michaelmas in any year, on giving three months' previous notice in writing, and leaving the same at the Gaveller's office. 9 At the expiration of the requisite notice the gale or lease in question becomes void ; and no deed or other act of surrender is necessary. 10 Surrenders of gales other than by notice, and surrenders of parts of gales, 1 34 & 35 Vict. c. 8.",, s. 34. . fi 1 & 2 Vict. c. 43, s. 29. 2 Be Brain, IS Eq. 389. 7 C . award, sell. 2, r. 6 ; I. award, 3 Ib - sell. 2, r. G. 4 1 & 2 Vict. c. 43, s. 2D ; 21 & 25 s Ib. Vict. c. 40, s. 3. Qn., whether s. 14 of 9 q. awardj sch# 2 r> g . 04 k .,- the Conv. Act, 1881, applies to gales. Vict. c. 40. s. 1 8. 5 Ex parte Young, 50 L. J. Ch. 221. lo 24 & 25 Viet. c. 40. s. 19, CHAP. XX.] RIGHTS AND CUSTOMS. 4,93 may also be made, and accepted by the Gaveller ; on such terms and conditions as he shall think expedient. 1 And surrenders of leases of quarries or works; or of land leased in connexion with gales, quarries, or works ; may be made, and accepted by the Gaveller ; on such terms and conditions as he shall think expedient. 2 Every coal or iron galee, surrendering before his gale is worked BigW* and , „ duties incident out, must leave all roads and passages used by him in a free to surren ler. and open state for the succeeding galee. And every quarry galee must, upon surrendering, leave the quarry, and the roads and drains belonging thereto, in fair working condition. 3 A surrenderee of a coal or iron gale is allowed six months from the surrender to remove all minerals then lying on banks, and all machinery erections and buildings used by him. And a surrenderee of a quarry gale or lease is allowed three months from the surrender to remove all stone then worked for sale, and all machinery and buildings used by him. Bat the act of removal must not be so done as to cause any wilful or unnecessary impediment to the Crown, or to the entering galee or lessee. 4 Surrendered coal or iron gales may be re-galed. And sur- Re-grants, rendered quarry gales or leases ; and surrendered leases of land used in connexion with any gale, quarry, or work ; may be the subject of future leases. 5 The Gaveller or Deputy may, with the consent of the owners, and on the necessary previous sur- renders being made, divide two or more gales or parts of gales ; and he may regrant them, on such terms and conditions as he may deem proper, to the persons entitled. 0/) Stamps. All instruments made by or on behalf of the Crown in relation Stamps. to the Forest or Hundred are exempt from stamp duty. 7 1 S. 20 ; 34 & 35 Vict. c. 85, s. 33. 5 See 24 & 25 Vict. c. 10, s. 20. 2 24 & 25 Vict. c. 40, s. 20. Sur- 6 S. 21. renders are required to be registered 7 S. 22. As to the costs of litigation like transfers ; but non-registration between the Crown and a free miner, does not avoid them : ib. see James v. The Queen, 17 Eq. 516, 3 C. award, sch. 2, r. 15 ; I. award, 517 ; Re Brain, 18 Eq. 410 ; James v. sch. 2, r. 15 ; Q. award, sch. 2, r. 3. The Queen, 5 Ch. D. 1(32; Ex parte 4 C. award, sch. 2, r. 8 ; I. award, Young, 50 h. J. Ch. 221. sch. 2, r. S ; Q. award, sch. 2, r. 4. 494 GLOUCESTERSHIRE [chap. XX. Private owi entitled to moiety of rent. Workings- generally. Surface damage. c. Mutual Rights of Private Owners and Free Miners. A private owner of inclosed land in the Hundred, not being in the Forest, 1 is entitled to one-half of the net rent or royalty payable by free miners in respect of the minerals gotten thereunder ; and, if there are more than one such owner, an apportionment will be made by the Gaveller or Deputy. And disputes with respect thereto are referable to arbitration. 2 The erection of steam-engines or dwelling-houses in inclosed land is unlawful without the previous consent in writing of the owner. 3 And where a coal or iron gale, pit, or level, is opened within inclosed land, no building can be erected or work made except such as the Gaveller may consider absolutely necessary ; and in the manner least injurious to the inclosed land. 4 A quarry galee or lessee, in working near the boundary of any patch or freehold land, must not carryforward his workings so as to injure the same, or the wall or fence or other boundary thereof, without the previous consent of the owner. And he must leave so much space on the outside of any such patch or freehold land, as may be necessary for the protection of the boundaries, and for the continuance of any adjoining carriage or bridle-road or footpath. 5 The owners of inclosed lands in the Hundred, whether they are also in the Forest or not, are entitled to compensation from the miners for surface damage. The compensation may consist of an annual payment, or a sum in gross : it may be absolute or conditional ; and it is assessable by the Gaveller or Deputy. After assessment, it is recoverable in an action of debt ; and, until pay- ment is made, the working in respect of which the assessment is made may not be proceeded with. The expression 'inclosed lands ' does not apparently include a dwelling-house standing on uninclosed land, and open on three sides. 7 And the expression ' surface damage ' means damage done to the surface by such 1 The wood known as the Abbot's 4 ('. award, sch. 2. r. 2.3 ; I. award, Wood is deemed uninclosed land with- in the Forest for the purposes of 1 & 2 Vict. e. 43, and 24 & 25 Vict. c. 40 : see 33 Vict. c. viii., s. 9. 2 1 & 2 Vict, c. 43, s. 07. 3 S. G'J. sch. 2, r. 21. s Q. award, sch. 2, r. 8. G 1 & 2 Vict. c. 43, s. 0,8 ; 24 & 25 Vict. c. 40, s. 16 : see Ailaway v. Wag- staff, 4 H. &N. C81. ' Ailaway v. AVaerstaff. u. s. CHAP. XX.] RIGHTS AND CUSTOMS. .[€)[ acts as sinking a shaft through it, or making a road on it ; and it does not include damage caused by withdrawing support from it. 1 Free miners are not, however, exempt from liability in an ordinary action for wrongfully withdrawing such support. 2 (/. Mutual Rights of Free Miners. (a) Grants. Gales must be granted to free miners in the order of their Priority of applications in writing ; and the entry of applications in the &vl ' l books of the Gaveller or Deputy is evidence of the priority of applications. 3 If there are more than one application on the same day for the same gale, the person entitled must be determined by lot. 4 Before, however, the actual grant, an applicant for a gale has no estate or interest legal or equitable. It is perhaps open to him, if there has been delay or other mis- conduct on the part of the Gaveller or his Deputy, to obtain a mandamus. But the duties of the Gaveller, or his Deputy, are purely ministerial ; and he has no other remedy. 5 If, therefore, he dies before the gale has been actually granted, his right is not transmissible to his heir or devisee. It is altogether lost. And it is immaterial that the Gaveller may have been for a long time deterred by the claims of other free miners from making the grant. Where several persons have applied for a grant of the same gale, and a grant has been made to one, the rights of all the other applicants are extinguished. And, if the gale is subsequently forfeited, the first applicant after the forfeiture, and not the next on the list of former apj)licants, is entitled to the gale. 7 The first applicant after notice of a forfeiture is en- titled to priority over the first applicant after a re-entry ; a forfeiture being complete on service of the notice. 8 No free miner is entitled to have more than three gales No right to more than three l':i1c~. 1 lb., p. C87 : cf. s. c. p. 307. 6 lb. ; overrulingS.C17Eq.502. On 2 lb., p. 681. See ante, pp. 351, et the other hand, the applicant may with- se n draw his application at any time before 3 1 & 2 Yict. c. 43, s. GO. the grant is actually made, ante, p. 483. 4 jj # 7 James v. The Queen, 3 Ch. D. 153, 5 See James v. The Queen, 5 Ch. per Malms, V.-C. D. 153, 159, 161, per James and Bag- s Ex parte Young, 50 L. J. Ch. 221 : gallay, L.JJ. see ante. p. 492. 496 GLOUCESTERSHIRE [chap. XX. granted to him at any one time. Nor is he entitled to have any other gale granted to him, unless one or more of the three shall have been exhausted ; notwithstanding that he may have disposed of the previously granted gale or gales. 1 But where a free miner has obtained grants of three several gales ; and has (before working it out) surrendered one of them, on the ground that it did not contain sufficient coal to make it worth the working; it will be treated as exhausted, so as to entitle him to a fourth gale. 2 Publications- N gale can be granted, unless fourteen days' notice of the interference with existing application shall have been published by the Gaveller or Deputy in a newspaper or newspapers circulating in Gloucestershire, specifying the day and hour and place of the intended grant. 3 And gales may not be granted, which may interfere with existing gales. 1 fSubject to this, however, any vein of coal or iron, which lies under or near a vein already galed, may itself be galed. And a galee has no title to a vein which is not actually included in his gale. 5 If one applicant for a gale desires to restrain the Gaveller from making a grant to another, he should present a Petition of Right to the Queen ; making the other applicant a party. But the Gaveller or his Deputy is not, it seems, a proper party to an action by one applicant to restrain another from aj^plying for or accepting a grant. 7 Proceedings to restrain grants. (/3) Boundaries. 8 Boundaries. The Gaveller or Deputy may settle disputes as to boundaries ; and, with the consent of the adjoining owners, he may alter the boundaries between adjoining gales or workings. 9 Where the 1 1 & 2 Vict, c. 43, s. 61. 2 Ellway v. Davis, 16 Eq. 294 ; James V. The Queen. 5 Ch. D. 15)?. 3 Ik 2 Vict. e. 43, s. 56. 4 8. 62. 5 C. award, sch. 2, r. 2 ; I. award, sch. 2, r. 2. G See lie Brain, 18 Eq. 389 ; Ex parte Young, 50 L. J. Ch. 221. 7 See Davis v. Howard, referred to in 17 Eq. 503 ; 5 Ch. D. 154. In Mat- thews v. Carlisle, 1-i L. T. 306, an in- junction was obtained against the Gaveller ; but this was before 23 & 24 Vict. c. 34 (Petition of Eight Act). 8 See ante, pp. 480, n. 5 ; 484. Ques- tions as to metes and bounds are ques- tions between the different miners, rather than between the Crown and any particular miner : A.-G-. v. Jackson, 5 Ha. 367. 9 24 & 25 Vict. c. 40, s. 23 : see Q. award, sch. 2, r. 7. CHAI\ XX.] EIGHTS AXD CUSTOMS, l'.l? boundary of a galo is a barrier of coal lying between such gale and any adjoining gale, the Gaveller or Deputy may, if he thinks that the working may safely be proceeded with, grant to the owners on the two sides ; or to the owner, for whose protec- tion the barrier appears to have been left ; license to work and dispose of the coal in such barrier. But such grant must be subject to a royalty, conditions, and rules, similar to those applicable to the remainder of the coal belonging to such owners or owner; and to such other conditions as the Gaveller may think proper. And before any such license can be granted, notice of the intention to grant it must be published in a newspaper circulating in the Forest of Dean ; and all persons who would be affected by such grant are entitled to be heard against it. 1 (y) Workings. The railroads and other roads, which a coal or iron galee, or a Right to use quarry galee or lessee, is allowed to make and use, 2 may be also used by the owners of other works, upon payment of reasonable compensation ; the amount of which is, if necessary, determin- able by arbitration. 3 A coal or iron galee may not work so as to impede or injure Duty not to the workings of other gales ; and a quarry galee or lessee may J^rkings. " not place his spoil bank so as to impede or interrupt the work- ings of an adjoining or other quarry. 1 Where, however, a gale of coal was granted ; and a condition was imposed on the galee, that the underlying veins of coal might be subsequently galed to other persons, but with the proviso that the prior galee was not to be thereby impeded or injured ; and the underlying veins were subsequently galed, with a license to sink a shaft to them from the surface through the coal of the prior galee ; and the only practicable way of reaching the underlying veins was by sinking such a shaft ; the subsequent galee was held entitled to sink it. The proviso was construed as being a restriction on 1 24 & 25 Vict, c. 40, s. 24. r. 2. - See ante, p. 488. 4 0. award, sch. 2. r. 2 ; I. award. 3 C. award, sch. 2. r. 3 ; I. award. sch. 2, r. 2 ; Q. award. s C h. 2. r. 5. sch. 2. r. 3 ; Q. award, sch. 2. K K 498 GLOUCESTERSHIRE [chap. XX. Duty to leave barriers. Duty to pre- vent escape of water. the mode of working the underlying veins after they had been reached ; but not before. 1 Every coal galee of later creation than the awards of 1841 is obliged to leave barriers of coal in each vein of such width, and in such situation, as the Gaveller may direct. 2 The owner of a higher gale, not drained by any steam-engine, who wilfully or negligently allows water from his gale to fall into a lower gale, is liable to the lower galee for all damage which may ensue. 3 The lialjility in resjDect of water of a higher galee is not, however, confined to this. The owner of a higher coal gale, which is drained by steam-engines, and from which by the stopping of the engines water would be thrown into a lower gale, is bound, so long as he continues to hold possession, so to work his engines, as to prevent water from his gale from falling into the lower gale. 1 And the liability of a higher iron galee is even greater. He is under a similar obligation to that of a higher coal galee with respect to the working of his engines. And he is, in addition, liable to compensate the lower galee for all damage from any escape of water from his gale, although he may have worked his engines properly, and have been wholly unable to prevent the damage ; the amount of such com- pensation being, if necessary, determinable by arbitration. 5 On the other hand, the owner of a dip gale is bound to prevent water from accumulating therein, and rising above the level of his workings, to the injury of the land galee. Where any gale is drained by a steam-engine or other machinery ; and it lies above auy other gale, also worked by a steam-engine ; and it is worked out or abandoned before the dip gale; the land 1 Gould v. G. W. Deep Coal Co., 2 De G. J. & S. 600 ; affirming S. C. 12 L. T. N. S. 812. The principle applied was that of a way of necessity : sec. as to this, ante, p. 872. In the great majority of cases, the Gaveller would probably, in granting the subsequent gale, make it a condition, that general compensation should be made by the galee, for damage occasioned by his workings to the prior galee. In the absence of such a condition, how- ever, the prior galee could obtain no compensation for such damage : see Goold v. G. W. Deep Coal Co., «. s., 608, per Lord Westbmy, 2 C. award, sch. 2, r. 18. 3 R. 19 ; I. award, sch. 2.r. 18. 4 C. award, sch. 2, r. 19. See Ross v. Rugge-Price. 1 Ex. D. 269 ; Brain v. Thomas, 50 L. J. Q. B. 662. 5 I. award, sch. 2, r. 18. As to the law, in the absence of contract, see ante, pp. 403, ct scq. fi C. award, sch. 2, r. 19 ; I. award. sch. 2. r. 18. CHAP. XX.] EIGHTS AND CUSTOMS. .J.QQ galee must leave at the usual or last known residence of the dip galee three months' previous notice in writing of his intention to discontinue the working of the engine. 1 If the rules, according to which a galee should work, are not Remedies complied with, compliance may be enforced by an injunction in c °mpliance the Queen's Bench Division at the suit of the adjoining galee.- Wlth rults - And, if necessary, the injunction may, it seems, be mandatory. 3 If the adjoining galee has been injured by a non-compliance, he may also bring an ordinary action for damages. 4 And it is not necessary for him to show a previous notice to the defendant of the injurious consequences of the non-compliance. 5 A mortgagor, in possession and working, may be made liable in such an action. But not a mortgagee, who has never been in possession. 6 e. Trespassers. The Verderers of the Forest have power to inquire into all Trespassers, trespasses by cutting, taking, or carrying away of turf, gravel, stone, sand, or other soil within the Forest ; and to prosecute the persons guilty of the same ; and, upon conviction, to fine the offenders any sum not exceeding ^620 ; and to direct the trespasses to be abated. But if any person proceeded against insists, that the trespass was not committed within the Forest boundaries, the Verderers cannot proceed to conviction ; but are obliged to certify to the Attorney-General, in order that proceedings by information or otherwise may be taken.' 1 C. award, sch. 2. r. S ; I. award. Brain v. Thomas, u. «., 6(52. sch. 2, r. 8. s Ross v. Rugge-Price, v. s.. 272. - lk.2 Vict. c. 43, s. 29. 6 Brain v. Thomas, ?/. s. 3 See Brain v. Thomas, 50 L. J. Q. B. ' 10 Geo. 4. c. 50, s. 100; 1 & 2 663, per Lord Selborne. Viet. c. 42, s. 14 ; 24 & 25 Vict. c. 40. 4 Rossi'. Rugge- Price. 1 Ex. D. 2(50 ; s. 25. K K 2 CHAPTER XXL Rights of property. Cust DERBYSHIRE RIGHTS, COURTS, AND CUSTOMS- REMAINING LOCAL RIGHTS AND CUSTOMS. Sect. 1.— DERBYSHIRE RIGHTS, COURTS, AND CUSTOMS. a. Generally. The right of property in the mines and veins of lead ore in a district within the Hundred of High Peak, in the county of Derby, called the King's Field, and in certain other parts of the same Hundred ; and in a district within the Soke and Wapentake of Wirksworth or Low Peak, in the same county, called the King's Field ; and in certain duties payable in respect of such mines and veins ; is vested in the Crown, as part of the possessions of the Duchy of Lancaster. 1 The right of property in the mines and veins of lead ore in the manors of Ashford, Hartington, Peak Forest, Tideswell, Crich, Stoney Middleton and Eyam, Youlgreave, and Litton, in the same county ; and in certain duties payable in respect thereof; is in the hands of various private persons. 2 The right of property in the land containing the mines, in respect of which the duties are pay- able, is in the hands of various other private persons. 3 These various rights are subject 4 to an ancient customary right in all the 1 See the preambles of 14 & 15 Vict. c. !>4 ; 15 & 16 Met. c. clxiii. See Arkwright r. Gell, 5 M. & \V. 204 ; Arkwright v. Evans. 49 L. J. M. C. 82. 2 See the preamble of 15 & 16 Vict, c. ^ clxiii. There can be no doubt, that in each case the right of property, strictly speaking, extends to the mines as well as the duties ; and, under certain cir- cumstances, the mines may be for- feited to the owners of the duties : ece infra, c. (8). ■' See 14 & 15 Vict. c. 94, sch. 1 ; 13 & 16 Vict. c. clxiii, sch. i. 4 The whole of the King's Field in early times belonged to the Crown, and the customary rights and duties as to mining therein originated while it so belonged. The Crown subse- quently made grants of the soil to private persons; but these grants of neccssitj- only operated subject to the customary rights and duties. Trac- SECT. 1.] DERBYSHIRE RIGHTS, COURTS, AND CUSTOMS. 501 subjects of the realm to search for and dig the mines and veins of lead ore, on payment of the above-mentioned duties. 1 The miners have also customary rights as between themselves. And they are subject to customary rights in favour of tithe owners ; creditors; and persons, who 'relieve 'the mines. All these Statutes and rights are now regulated by statute. 2 And questions relating Courte " thereto are decided in the Great and Small Barmote Courts. 3 In the Acts in question 1 the following words or expressions Statutory have or include the following meanings :— In each Act the «mhi™" "' words "mine or mines, vein or veins," mean a mine or mines. " ve ! n '" , ' mineral vein or veins of lead ore ; and include parts of or shares in property," any mine or vein, as well as entire mines and veins, and all minerals containing lead ore. In each Act the words " mineral property " include mines and veins of lead, and parts of or shares in any such mines or veins, and the works, rights, and appurtenances connected therewith, and also lead ore ; and all tools, materials, goods, chattels, and effects used in searching for, getting, cleansing, or preparing lead ore, whether such tools, materials, goods, chattels or effects be or be found in or upon any mine or works, or elsewhere. 5 In the first Act the word tically, therefore, the lead mines were Steward and Grand Jury at a Great excepted out of every grant ; and liberty Barmote Court held at Monyash on was reserved to the Crown, and the the 5th of April, 1859 ; and afterwards customary miners as its licensees, to duly sanctioned by the Duke of Devon- work them : see Wake v. Redfearn, 43 shire, as lessee of the duties of ' lot ' L. T. 123; Wake v. Hall, 7 Q. B. D. and 'cope,' by the Chancellor of the 297 ; 8 App. Cas. 211. As to Eyam, Duchy of Lancaster, and by Parlia- see post, p. 502, n. s . ment. In Wake v. Hall. u. s., 19S, 1 See the preambles of 14 & 15 Vict. Lord Blackburn inadvertently stated, c. 94 ; 15 & 16 Vict. c. clxiii : see also that the powers of s. 56 had not been Wright v. Pitt, 3 Ch. 811. exercised. The rights existing in the 2 Those existing in High Peak are other districts are regulated by the principally regulated by the High Peak Derbyshire Mining Customs and Mining Customs and Mineral Courts Mineral Courts Act, 1852, 15 & 16 Vict. Act, 1851, 14 & 15 Vict. c. 94 (see s. 16) ; c. clxiii (see ss. 25, 65) ; and the arti- and the articles and customs comprised cles and customs comprised in the in the schedule thereto, which have schedule thereto, which have the force the force of statute (s. 1 ; Wake v. of statute (s. 1). Hall, 8 App. Cas. 198, 206, 211). They 3 See 14 & 15 Vict. c. 94. s. 7 ; 15 ,5c are also in part regulated by certain 16 Vict. c. clxiii, s. 16. New Customs, entitled "New and Ad- 4 14 & 15 Vict. c. 94 ; 15 & 16 Vict. ditional Customs, Articles, Rules, and c. clxiii : see supra, n. -. Orders,'" established under the provi- 5 See s. 2 of each Act : New Cast. sions of s. 56 of that Act. by the a, 59. 502 DERBYSHIRE RIGHTS, [chap. XXI. Doubt as to application of Met. Mines Reg. Act. Admissibility of evidence of custom as to adjoining manor. 'ore' means lead ore, and 'belland' exclusively. 1 And in the second the word ' ore ' means lead ore exclusively. 2 It has been doubted, whether the Met. Mines Reg. Act, 1872, applies to Crown mines subject to the Derbyshire custom. 3 But, apparently, this doubt is not well founded. i Evidence of what has taken place in one manor in Derby- shire may, it seems, be admitted for the purpose of explaining or showing the custom in another ; even where the question is with respect to the right to minerals as between a lord and the tenant. 5 Districts and jurisdictions. b. Barmote Courts. (a) Generally — Officers and Functionaries. There are or may be a Great and a Small Barmote Court for each of the following districts : — (1) High Peak ; (2) Wirks- worth ; (3) the united manors of Ashford, Hartington, Peak Forest, and Tideswell ; (4) the united manors of Stoney Mid- dleton, and Eyam ; (5) Crich ; (6) Youlgreavc ; and (7) Litton. 6 The jurisdiction of the Courts for High Peak extends over the whole of the King's Field therein, and over all other parts of the Hundred of High Peak in which the duties are payable. 7 The jurisdiction of the Courts for the Soke and Wapentake of Wirksworth extends over the whole of the King's Field therein. And the jurisdictions of the Courts for the manors extend (ex- cept, possibly, as to certain parts of Eyam 8 ) over them respec- 1 .See s. 2. Belland is what remains in the dirt after the ' smytham,' or offal ore, has been taken away : see A.-G. r. Wall. 4 B. P. C. G66. 2 See s. 2. 3 See Arkwright v. Evans. 49 L. J. M. I . 82, ST. 4 Under s. 39 of the Act, and under s. 1 of the Met. Mines Beg. Act, 1875, Barmasters are charged with certain specified duties : see post, Chap. XX IV. Part A.. Sect. '.>, (£). '•> See Ely v. Warren, 2 Atk. 189 ; Anglesey v. Hatherton, 10 M. & W. 237 : cf. Bowe v. Brenton, 8 B. & C. 758. This forms an exception to the general rule: see ante. p. 100. 6 14 & 15 Vict. c. 94, b. 6 : 15 & It! Vict. c. clxiii. bs.11, 12, 13, 14, 15. " 14 & 15 Vict. e. 94, s. 16. 8 The owners of certain lands within Eyam. called 'ancient freeholds,' have always claimed to be exempt in re- spect of such lands from all mineral customs, and from the jurisdiction of the Barmote Courts. And this claim is not prejudiced by the Acts relating to the Derbyshire Mining Customs and Mineral Courts ; it being provided by 15 k 1C> Vict. c. clxiii, s. 26, that, until it shall be found by law, that these lands are subject to such customs and such jurisdiction, they shall not be affected by anything contained in the SECT. 1.] COURTS, AND CUSTOMS. 503 tively. 1 The Courts are courts of record ; 3 and all the respective jurisdictions are separate and distinct. 3 The jurisdictions are exercised by the Stewards ; 4 or, in case of Officers ana their illness, or accidental absence, by their Deputies ; 5 with the £unctl0nanes - assistance of the ' Barmasters/ and 'Deputy Barmasters.' c There are one Steward and one Barmaster for each district possessing a Great and a Small Barmote Court ; 7 but (as regards the districts other than High Peak) the same person may bo Steward for more than one of them. 8 Each Barmaster may have several Deputy Barmasters. 9 Great Barmote Courts are held at the following times and Times and places: — For High Peak, twice in the year at Monyash in the holding King's Field therein: 10 for Wirksworth, twice in theyearatWirks- c ' ourts - worth : n for the united manors of Ashford, Hartington, Peak Forest, and Tideswell, once in the year at such place within the jurisdiction as the Steward appoints : 13 for the united manors of Stoney Middleton and Eyam, once in the year at such place within the jurisdiction as the Steward appoints ; 13 and for Youlgreave and Litton, as often in the year in Youlgreave and Litton, as the persons respectively entitled to the first estate of freehold in the mineral duties payable in Youlgreave and Litton may at their discretion think proper. 14 And a Court may be held at Crich ; but need not be held, unless the Steward so Acts. The onus is, therefore, on those clxiii. ss. 6, IS. 19. The lessee under the wlio allege, that such lands are sub- Crown of mineral duties cannot hold ject to the customs and the jurisdic- the office of Barmaster : see Arkwright tion, to prove their allegation : see v. Cantrell. 7 A. & E. 565. See. as to Wright r. Pitt, 12 Eq. 408, 416. the protection of the officers of the 1 15 & 16 Vict. c. clxiii, s. 25. courts. 14 & 15 Vict. c. 94, ss. 10, 21, - 14 & 15 Vict. c. 94, ss. 8, 15 ; 15 & 42. 43, 51 : 15 & It; Vict. c. clxiii, ss. 16 Vict. c. clxiii, ss. 17, 24. 20, 30, 50. 51, 59. 3 Wake r. lledfearn, 43 L. T. 12:.. ' 14 & 15 Vict. e. '.)4. ss. 3. 9 : 1."- 4 14 & 15 Vict. c. 94, ss. 3, 15 ; 15 & 16 Vict. c. clxiii, ss. 3. 1. 6. 12, 18, & 16 Vict. c. clxiii. ss. 3, 24. As to 19. their appointment and qualifications, 8 15 & 16 Vict. c. clxiii, s. 7. see 14 k 15 Vict. c. 94, s. 3 ; 15 & 16 9 14 ,t 15 Vict. c. 94, s. 9 ; 15 & 16 Vict. c. clxiii, ss. 4, 6, 7, 8. Viet. c. clxiii, ss. 6, 18, 19. 5 14 & 15 Vict. c. 94, s. 4 ; 15 & 16 10 14 & 15 Vict. c. 94. s. 6 ; New Cost. Vict. c. clxiii, s. 9. a. 22. 6 14 & 15 Vict. c. 94, s. 9 ; 15 & 16 » 15 & 16 Vict. c. clxiii. s. 11. Vict. c. clxiii, ss. 18, 19. As to their u S. 12. appointment and removal, see 14 & 15 13 lb. Vict. c. 94, ss. 9, 11, 12 ; 15 & 16 Vict. c. 14 Ss. 14. 15. 504 DERBYSHIRE RIGHTS, [CHAP. XXI. Business transacted at Courts. Duties of Stewards, Barmasters, and Deputy Barmasters. desires. 1 Small Barmote Courts for High Peak are held at any place within the jurisdiction which the Steward appoints : ~ for Wirksworth, in Wirksworth ; 3 and for the manors, at such places within the manors as the Stewards appoint. 1 And they are held as often as is necessary.' The principal business transacted at a Great Barmote Court is the swearing in of the Grand Jury : G at a Small Barmote Court, the trial of actions of title, trespass, and debt. 7 The duties of the Stewards are to attend and preside at ' views of mines ; ' s to hold and preside at the Courts ; to hear and determine applications to the Courts, which do not require the intervention of a jury, and make orders thereon ; to tax costs ; and to perform various ministerial acts in the course of actions. 9 The duties of the Barmasters are to select the Grand Jury ; to make out a list of jurors to attend at the Small Barmote Courts ; to execute all precepts and warrants directed to them by the Stewards; to attend 'views of mines;' 8 to set out ' gifts ;' 10 and to assist in regulating the working of the ' mines,' and the rights and duties of the miners. 11 The duties of the Deputy Barmasters are to serve summonses in actions in the Small Barmote Courts; to serve summonses on jurors; to attend ' views of mines ;' 8 to collect the dues payable to the Crown, or other persons entitled thereto, and keep accounts of such dues ; to keep their Barmaster's book, and make en- 1 S. 13. If not held, the grand jurors and other jurors for Wirksworth per- form the duties in Crich : lb. - 14 & 15 Vict. c. 94, s. 6 ; New Cast. a. 24. 3 15 &16 Vict. c. clxiii, s. 11. 4 lb. 5 14 & 15 Vict. c. 94, ss. 6, 24 ; 15 & 16 Vict. c. clxiii, ss. 11, 33. 6 14 & 15 Vict. c. 94, s. 7 ; 15 & 16 Vict. c. clxiii, s. 16. New rules and customs for High Peak may be made at the Great Barmote Courts for that district : see 14 & 15 Vict. c. 94, s. 56. This right has since the Act been only once exercised : see ante, p. 501, n. - " 14 & 15 Vict. c. 94, s. 7; 15 & 16 Vict. c. clxiii, s. 16. Parties are not precluded from proceeding in any other court which has jurisdiction : 14 & 15 Vict. c. 94, s. 55 ; 15 a - 22 : 3 14 k 15 Vict. c. 94, s. 14; New New Oust. a. 11 ; 15 & 16 Vict. c. clxiii, Cast. a. 23 ; 15 lV: 1(5 Vict. c. clxiii, s. 23. sch. 1. a. 23. 4 14 & 15 Vict. c. 94, s. 22 ; New 8 lh. Gust. aa. 13. 14, 15, 17; 15 & 16 Vict. 9 14 & 15 Vict. c. 94, sch. 1. a. 23 : c. clxiii, s. 31. See ib., as to their se- 15 & 10 Vict. c. clxiii. sch. 1, a. 24. lection, qualification, and period of »° 14 & 15 Vict. c. 94, sch. 1. aa. 22, service. 23 ; 15 & 10 Vict. c. clxiii, sch. 1. aa. s 14 k 15 Vict. c. 94, s. 23 : New 23. 24. Oust, aa. 15, 1G ; 15 & 16 Vict. c. " lb. clxiii, s. 32. l ' U & 15 Vict - c ' U ' sch ' l - a - " : '« 14 & 15 Vict. c. 94, s. 38 ; New see a. 24 ; 15 & 1G Vict. c. clxiii. scb. Gust. aa. 15, 1G ; 15 & 16 Vict. c. clxiii, 1, a. 23 : sec a. 25. The opinions d< i s. 47. As to exemptions in High Peak, not, apparently, require to be Btamped see 14 & 15 Vict. c. 94, s. 39. As to like an award : see Sybray v. White, 1 their protection, see 14 & 15 Vict. c. 94, M. & W. 435, a case before the pa sch. 1, a. 25 ; 15 & 16 Vict. c. clxiii, of the Acts. 506 DERBYSHIRE RIGHTS, [CHAP. XXI. who openly reads them, 1 and thenceforth preserves them with the documents of the Courts. But, if the ' view ' shall have been had in an action, he is obliged, if required by the plaintiff or defendant, to permit them to be used for the purpose of evidence on the trial." (/3) Proceeding*, Appeals, and Execution. "Proceedings— An action in the Small Barmote Court of any district is com- geneia y. mencec l by entering a plaint with the Steward. 3 The Steward then issues a summons, specifying the day when a Court will be held for the trial; 4 and this summons is served on the defendant. 5 Service of subpoenas to give evidence on trials is good in any part of England or Wales ; and may be enforced by process from the Queen's Bench Division, if the expenses be tendered. 6 Witnesses may (in High Peak) be examined on oath or affirmation. 7 They are (in all the districts) bound under penalties to give evidence ; 8 and, if they give false evidence, they maybe punished for perjury. 9 Matters of fact in issue are triable by a jury of owners or maintainors of ' mines ' within the jurisdiction, being resident in the county of Derby, and not being members of the Grand Jury. 10 And the performance of their duties is enforceable under penalties. 11 The Steward 1 14 & 15 Vict. c. 94, sch. l,a. 22; 15 s u & lg Victi c fJ4 _ g< 2 ; 15 & .V II! Vict. c. clxiii, sch. 1. a. 23. 16 Vict. c. clxiii. s. 29. 2 lh. As to the expenses of the » 14 & 15 Vict. c. 94, s. 19 : 15 cV 16 view, see ib. A view, or something Vict. c. clxiii, s. 28. very like it, took place in Sybray r. m 14 & 15 Vict. c. 94, ss. 24. 31, 35. White, 1 M. & W. 435. 80 ; tf ew rjust. aa. 18, 19, 21 ; 16 & 3 14 & 15 Vict. c. 94, s. 5. sch. 1, a. 16 Vict. c. clxiii, ss. 33, 43, 45, 46. Ki ; 15 & 1(5 Vict. c. clxiii, s. 10, sch. With respect to some of the districts, b a - 1(l - if there are an insufficient number of jurors resident therein, the Barmaster 14 & 15 Vict. c. 94. s. 24 ; 15 ,v. 16 \ ict. c. clxiii. s. 33. ma y summon persons from the lists 5 See, as to the mode of service in provided for the other districts : see High Peak, 14 & 15 Vict. c. 94. s. 25 ; 15 & 16 Vict. c. clxiii. s. 44. New Cust. aa. 28, 29, 30 : in the other n 14 & 15 Vict, c.' 94, s. 37 : New districts. 15 & 16 Vict. c. clxiii. s. 34. Cust. a. 19 ; 15 & 16 Vict. c. clxiii, G 14 & 15 Vict. c. 94, s. 31 : see s.40 ; s. 47. See. as to exemptions in High 15&16 Vict. c. clxiii, s. 40: sees. 48. Peak, 14 & 15 Vict c. 94. s. 39; 7 14 & 15 Vict. c. 94, s. 18. As to countermanding. New Cust. aa. 20, affidavits in High Peak, see New Cust. 39, 45, 46 ; fees, a. 44. a. 56, SECT. 1.] COURTS, AND CUSTOMS. 507 may adjourn the Court, or the hearing of the proceedings therein. 1 He may (in High Peak) amend proceedings ; - and he may (in all the districts) grant new trials, and set aside judgments, and stay proceedings. 3 He may also (in High Peak) by consent refer proceedings to arbitration; and set aside awards. 4 The party, who has judgment in his favour, is entitled to costs. 5 Where the owners of a ' mine ' in High Peak are more than three in number, they may appoint and register with the Barmaster an agent to sue and be sued on their behalf. 5 A person claiming title cannot, generally, bring more than Title. one action to recover the same ' mine.' 7 And if the ' mine ' is in process of working, he must bring his action within three months after he shall have had notice of the working ; or within six months after it shall have been worked, whether he shall have had notice or not. 8 A nonsuit is not a bar to a fresh Trespass and action, either of trespass, or of debt. 9 Actions in the Small Barmote Courts may be removed to, and Appeals, appeals lie to, the Queen's Bench Division. 10 Where the plaintiff in an action of title in a Small Barmote Execution. Court obtains judgment ; and the defendant refuses to deliver jDossession ; execution may issue, and delivery may be enforced by the Barmaster. And, where a judgment is given, or an order made, to pay any debt or damages, or any money or costs, or where any penalty is imposed ; and default is made in pay- 1 14 & 15 Vict, c. 94, s. 17 ; New 1 A. 17 of sch. 1 of each Act. For Cast. aa. 43, 4(5; 15 & 10 Vict. c. the form of the summons in an action clxiii, p. 27. of title in High Peak, see New Oust. a. - New Cust. a. 50. 25. Any person not named as a de- ;i A. 17 of sell. 1 of each Act. fendant may, by leave, appear and 4 New Cust. a, 51. defend. 5 14 & 15 Vict, c. 94, ss. 28, 53 ; s 14 ,\: 15 Vict. c. 94, sch. 1, a. 21 : 15 & 16 Vict. c. clxiii, ss. 37. CI. As to 15 & 1G Vict, c. clxiii, sch. 1. a. 22. service of judgments and orders in ,J A. 17 of sch. 1 of each Act. As to High Peak, see New Cust. a. 48. For the defences of infancy and coverture, the consequence of not proceeding in and other special defences in actions an action, see 14 & 15 Vict. c. 94, s. 26 ; of trespass and debt in High Peak, New Cust.aa. 37, 41, 46 ; 15 & 16 Vict, see New Cust. aa. 33, 34. 36, 39, 40, c. clxiii, s. 35. As to confessing claims 41,42; as to payment into Court, aa. in High Peak, see New Cust. aa. 32, 35, 36, 38, 39, 40, 41, 42. 36. And as to compromises in High 10 14 & 15 Vict. c. 94, ss. 29, 30, 52 ; Peak, see ib. aa. 31, 46. 15 & 16 Vict, c, clxiii, ss. 38, 39, 6 New Cust. aa. 9, 10 : see also 60. f.a. 27, 49. 508 DERBYSHIRE RIGHTS, [CHAP. XXI. ment ; execution may issue against the ' mineral property ' 1 of the defaulter within the jurisdiction, and the property may be sold by the Barmaster. And, if the defaulter has no ( mineral property' within the jurisdiction, or not sufficient to answer the amount in question, the amount or the deficiency may be re- covered by an action in the High Court ; or, if it does not exceed £50, in the County Court. 2 Necessary or proper build- ings or machinery, which a miner erects on the surface under his customary powers, 3 are ' mineral property ' within the mean- ing of these provisions. 4 Claims by a third party to ' mineral property ' taken in execution may be determined by an inter- pleader action in a Small Barmote Court. 5 c. Mutual Rights of the Crown and other Oivners of Mineral Duties and the Miners. (a) General Right to Search — Meers and Gifts. General right Every subject of the realm is entitled, primd facie, to search for, sink, and dig, mines of lead 'ore ' 6 upon, in, or under all lands within the jurisdiction of the Courts, except churches, churchyards, places for public worship, burial grounds, dwelling- houses, orchards, gardens, pleasure grounds, and highways. 7 And he may follow and work his ' vein,' G and search for and get lead 1 See ante, p. 501. 50; 15 & n; \'i,t. c. clxiii, s. 5G. A - 14 & 15 Vict. c. 94, ss. 32, 33, 47 ; register of proceedings is required to 15 & 1(5 Vict. c. clxiii, ss. 41, 42, 55. be kept by the steward, and all per- 3 See infra, d. sons wishing to inspect it may do so : 4 See Wake v. Hall, S App. C'as. see 14 ,<: 15 Vict. c. 94. ss. 44, 45 ; 207, 213, 214, per Lords Watson and 15 & 1G Vict. c. clxiii, ss. 52, 53. Fitzgerald. For forms of proceedings, see sch, 2 of 5 14 & 15 Vict. c. 94, s. 40; New each Act; New Gust. a. 25. And Cust. aa. 54, 55 ; 15 & 1G Vict. c. for fees and payments, see schedules 3 clxiii, s. 54. Execution may in some and 4 of each Act : New Cust. aa. 57, cases be superseded : sec 14 & 15 Vict. 58. c. 94, s. 41 ; 15 & 1G Vict. c. clxiii. 6 For the meanings of vein and ore, s. 49. As to levying costs in actions see ante, pp. 501, 502. by or against executors or adminis- ' A. 1 of sch. 1 of each Act. As to the trators in High Peak, see New Cust. jurisdiction of the Courts, see ant,, p. aa. 52, 53. Orders made out of 502. For a statement of the custom in court in High Peak for payment of High Peak before the passing of the costs are enforceable like judgments : Acts, see A.-G. v. Wall, 4 B. P. C. 665. New Cust. a. 47. As to the application Before the passing of the Arts the of penalties, sec 14 & 15 Vict. c. 94, s. custom in Wirksworth was said to SECT. 1.] COURTS, AND CUSTOMS. 'ore,' under the excepted lands in High Peak, and at a lower depth than fifteen yards from the surface under the excepted lands in the other districts. But, as regards his rights in the latter respects, all damage done by him may be recovered in an action 1 at the suit of the owner or occupier. And, as regards the same rights, the working may be suspended or regulated by the Steward and Grand Jury ; in case, in High Peak, the owner or occupier apprehends, that the security of the excepted lands will be endangered ; and, in case, in the other districts, the owner or occupier apprehends that the working is carried on at a less depth than fifteen yards from the surface, or that the security will be endangered. 2 A subject does not possess his rights the less, because he happens to be the owner of the soil which incloses the minerals. 3 Nor, on the other hand, does he lose his rights by becoming the lessee under the Crown of the mineral duties. 4 He may, however, contract himself out of his rights ; and he effectually does so by accept- ing a lease or licence with respect to the minerals in question. 5 If any new ' vein ' is found by any person in High Peak, and Meers and ' ore ' is raised therefrom, the following consequences ensue. ™ n erailY. The first finder is entitled to two ' meers ' in length of the ' vein,' one on each side of the ( founder,' or point at which the ' vein' is first found ;° or to any less quantity ; to be set out by the Barmaster in the presence of two of the Grand Jury. 7 The Crown or its lessees are entitled to the third ' meer ; ' to be set be, " to dig for lead in another's soil -1 D. & R. 222. Sec, generally, for the as far as one can throw his mattock : *' customs before the Acts, and for a see Lynn llegis v. Taylor, 3 Lev. glossary of terms. Mandcr's Derby- 160. Sec also Howls v. Gells, 2 Cowp. shire Miner's Glossary. ■151. It was necessary, in pleading : In the County Court, if the the custom, to plead it with cer- damage does not exceed £50 : other- tainty ; and to allege its existence wise in the High Court : a. 1 of sch. in some manor, vill, parish, or 1 of each Act. hundred. It would not, for instance. - A. 1 of sch. 1 of each Act. have been sufficient to allege its ex- 3 See Wake v. Hall, 7 Q. B. D. istence in the King's Field. Sec 298. Beresford r. Bacon, 2 Lutw. 1317. It 4 See Arkwright r. Evans. 19 was, in a case before the passing of L. J. M. C. Sii.^cr Lord Coleridge. the Acts, held that 'gardens' in- s See Wright c. Pitt, 12 Eq. 108, eluded a place planted with shrubs 416. six years, and with potatoes immc- ° II & 15 Viet. c. !>4, s. 2. diately, before the transaction in ques- '' 14 & 15 Vict. c. 94, sch. 1, aa. 10. tion took place : Gilbert v. Tomison, 11, 18. 509 510 DERBYSHIRE RIGHTS, [cHAP. XXI. out, at the option of the Barmaster, at either extremity of the two first or 'founder meers.' 1 And the finder is entitled to each subsequent 'meer,' each way, to the extent which he may claim or require at the time of 'freeing ' the 'founder meers.' 2 If any new 'vein' is found in any of the other districts, and ' ore ' is raised therefrom, the following consequences ensue. The first finder is entitled to two similar ' meers,' or to any less quantity ; to be similarly set out. 3 The Crown or its lessees, or the other owner of the mineral duties, is entitled to the third 'meer;' to be set out in halves at either extremity of the ' founder meers.' 4 The finder is entitled to each subse- quent ' meer,' not exceeding fifty ' meers ' in the ' vein,' to the extent which he may claim or require at the setting out of the ' founder meers.' And such subsequent ' meers ' may be set out either wholly in one direction in the ' vein,' or partly in one direction and partly in the other, as the miner may choose at the time of setting out the ' founder meers.' 5 A ' meer ' in High Peak, Hartington, Peak Forest, Tideswell, Stoney Middletou and Eyam, and Litton, measures thirty-two yards : 6 in Wirksworth, Ashford, and Crich, twenty-nine yards; 7 and in Youlgreave, twenty-eight yards. 8 The setting out of the 'meers' by the Barmaster is called the 'gift;' and the particulars of each ' gift ' are required to be entered in the Barmaster's book. 10 Non-working If the Crown, or its lessees, or the other owner of the mineral of third meer. duties, refuses or neglects to work the third ' meer,' the finder may purchase the same at such price as the Steward or Bar- master and Grand Jury may determine. Or he may work through it ; upon laying aside for the use of the owner of the 1 A. 10 ; s. 2. As to forfeiture for quarter of land in breadth adjoining trespassing in the third ' nicer,' see on each side of the vein, so far as it infra (5). extended in length ; which was called 2 A. 10. As to 'freeing,' see in- the ' quarter cord :' and the Crown was frit (/3). entitled to a meer of ground, with 3 1.") k 1(5 Vict. c. elxiii, sch. 1, the like privilege of 'quarter cord,' aa, 10, 11, IS. on each side of the founder meer. 4 A. 10. o a. 18 of sch. 1 of each Act. 5 lb. In a case before the Acts (Rowls ' 13 & 16 Vict. c. elxiii. sch. 1 v. Gclls, 2 Cowp. 451). it was stated. a. 18. that in Wirksworth the finder was. - s lb. for the purpose of working the vein, o y ec s _ 2 of each Act. entitled to use seven yards and a 10 A. 10 of sch. 1 of each Act. SECT. 1.] COURTS, AND CUSTOMS. 511 mineral duties all ' ore ' which may be gotten therein, after deducting the expenses of getting. 1 Any person having two or more veins of lead lying contiguous Consolidation to each other ; or connected by any shafts, gaits, or ways ; TCU18 " may, with the consent of the Barmaster or Grand Jury, con- solidate the titles to such veins. An entry to that effect is required to be made in the Barmaster's book ; and the veins are thenceforth treated as held under one title. 2 The interests of the miners appear to be freehold in their Interest of nature. 3 And, although before the Rat. Act, 1874,* a lesser ^teSty. under the Crown, or any other person entitled to the mineral duties, was rateable, as being in receipt of a portion of the mine; and the miner was exempt; 3 it may be doubted, whether the Act has not altered the position of the miner in that respect. 6 (/3) Freeing Dish — Lot and Cope. A miner is bound, before obtaining a 'gift/ to pay to the Freeing dish. owner of the mineral duties the ' freeing dish,' or so much ' ore ' as is sufficient to fill a dish of a specified measurement. 7 And he is bound to pay a similar dish for every third and subse- quent ' meer ' which he reaches. 8 If, however, he obtains a gift of less than a whole 'meer,' he is only bound to pay a 'freeing dish ' of a proportionate amount. 9 Duties of 'lot' and 'cope' are also payable by the miners Lot and cope. to the owners of the mineral duties. 10 ' Lot ' in High Peak, in Wirksworth, and in the manors other than Crich, is one- thirteenth part of all ' ore ' raised : in Crich, one-ninth. 11 1 lb. ; New Cust. a. 6. XXIII. Sect. 4. b. 2 14 & 15 Viet. c. 94, sch. 1, a. 27 ; 7 A. 11 of sch. 1 of each Act, As New Cast. a. 12 ; 15 & l(i Vict. c. to the measurement, sec a, 3 of sch. clxiii, sch. 1, a. 28. 1 of each Act. ;) See Doe v. Fearce, 2 Peake's s A. 1 1 of sch. 1 of each Act. N. P. 244. '-' A. IS of sch. 1 of each Act. As 4 37 & 38 Vict. c. 54. to forfeiture, see infra (5). 5 See Rowls v. Gells, 2 Cowp. 451. 10 A. 9 of sch. 1 of each Act. 6 S. 13 (as to which, see Van Min- u lh. See Rowls v. Gells. 2 Cowp. ing Co. v. Llanidloes. 1 Exch. D. 310) 451. ' Smytham ' (ante. p. 502, n. '.) can hardly be applicable. For duties. was not, before the passing of the which include' cope' (as to which see Acts, exempted from the payment of infrn (,8) ), would not be ''wholly re- the duties: see A.-G. v. Wall, 4, served in kind." Sec post, Chap. B. P. C. C>7'.t. The exemption was u DERBYSHIRE RIGHTS, [chap. XXI. "Cope' in High Peak, and in the manors other than Ashford and Crich, is the sum of fourpence For every Load of aine dishes of ' ore,' each dish beingof a specified capacity : in Wirksworth, Ashford, and (.'rich, sixpence for every load of nine dishes. 1 In order to insure due payment y~>{ ' cope,' all 'ore' raised is re- quired to be measured by the Barmaster. 9 ' Lot 1 is set apart and taken by the Barinaster when he measures any 'ore;' 8 and, if necessary, an action for an account will lie for its payment. 4 Payment o( "cope' is enforceable by an action of debt in the Small Barmote Court, or the Count? Court ll.Ji Peak. (} ) Trcmsfer and Devolution. Any person may transfer his interesl in any ' mine ' or ' vein ' in High Teak to any other person. 1 ' The transferor and trans- feree must both ex< cute a transfer in a specified form ; ; and the consideration for the transfer musl be truly stated. On the transfer being presented to the Barmaster or his Deputy, duly stamped and executed, and proof being given o( the due execu- tion, it must be entered in the Barmaster's book ; and the entry of the transfer is primd facit evidence o( its execution. 8 Whore any person entitled to any 'mine' or 'vein' in High Peak becomes bankrupt, a certificate of the appointment of his trustee. when presented to the Barmaster, must be entered in his book. there alleged to be part of the torn, and issues were directed to try the custom at law. As to the statu- meanings of ore. see ante, p. ■ 2 1 A. >.) of seh. 1 of each Aet. A- to the capacity of the dish, see :;. sch. 1 of each Aet. See \l vi Cells. 2 Cowp. 451. In A.-G. v. Wall (4 B. P. C. 665), a case involv- ing t ; - i of High Teak h the | ass \ ts, • ' : ' said te be every thirteenth dish dressed and made merchantable, and • '. for every ' load ' of • ore :' and the ' load ' w contain about 500 pounds or !' ' dishes : ' and the • dish * was said e a woo .leu measure about 21 inches long, 6A inches broad, and 4 inches deep, in which the ore. when dressed and separated from the dirt and base minerals adhering to it. was immemorially measured. \ ■ '•.'. :' sch. 1 of each Aet. In case the Barmaster does nol at- tend, the measurement is made by two | ersons employed by the miner : a. 7 of solt. I of eaeh Acl : New (,'ust. a. .">. As to forfeiture, see infra (_5). \. 9 •' - ih. 1 of eaeh Aet. 4 A.-t;. v. Wall. I B. P. C. 669. 5 A. 9 of sch. 1 of each Act. « It & 15 Viet. e. 94, sch. 1, a 6. 7 See. for the form. New Oust. a. 2. 8 U & 15 Vict. e. '.'!. sch. 1. a. t! ; New Cust a. 2. 3 New Cast. a. :'>. SI-XT. 1.] COURTS, AND CUSTOMS. 513 And where any person entitled to any 'mine' or 'vein' in High Peak dies, having devised or bequeathed it, the material 3 of the probate of his will and codicil-; (if any;, when pre- ■ ated to the Barmaster, must be entered in his book. 1 In the other districts any person may transfer his interest Other by causing an entry to be made in the Barmaster's b And any person may require any grant, conveyance, probate of a will, or oth iirance, relating to any ' mine,' to be entered in such book, with all necessary particulars. And every document so entered has priority over all documents not entered ; and all I have precedenc ach other according to the dates of their entry. 2 (5) Forfeiture. If anv 'mine' or 'vein' is worked without being duly Non-frying- : fa -I/ '■ it is liable to forfeiture to the owner of the mineral me nt duties payable in respect of it; and possession of it may be re- covered in the Small Barmote Court. 4 Miners are bound, under pain of forfeiting to the of the mineral duties the value of the ' ore/ or of the ' mine ' at which it is gotten, not to sell any ' ore,' or remove it from the ' mine,' until the measurement required for the purposes of 'lot' and ' cope has been made. 6 If a miner commits a trespass in the third 'meer' allotted Ti- to the owner of the mineral duties, 7 the 'mine,' of which the meer ' in which the trespass is committed forms a part, is liable to forfeiture to such owner ; and p I may be recovered in the Small Barmote Com If any 'mine' or 'vein ' is neglected and not wrought with- Non-working, out sufficient excuse : and remains so for three weeks after notice of the intention to forfeit it shall have been given to the- miner or put up at or near the 'mine;' it may be forfeited, and given by the Barmaster to any person or persons willing to work it 8 1 A. 4. 3 ••• p. 512. '- 15 ft 16 Vict, c cbriii, scl 1, -'- ] of each A (L g < 1 See ante, pp. 509, 510. fcj p- 5ii. ... 12 trfsch. 1 of each-'. .1 of each Act » U &15Vict. .l.a. 19; L L 51 4 DERBYSHIRE RIGHTS, [CHAP, XXI. d. Mutual Rights of Landowners and the Miners. Generally. Some of the relations between the landowners and the miners have been already considered. 1 See— ri S M-to Evei 7 miner is entitled, so long as his 'mine ' shall be worked, erect = and without making any payment therefor, 2 to the exclusive — rightfof °' use of so much of the surface as may be necessary for mining wate^ purposes. 3 And (as an incident of this right) he is entitled to erect upon the surface any necessary or proper buildings or machinery, with foundations sunk into the soil ; and from time to time to alter their description and character, according as improvements are discovered and introduced. 4 And he is also entitled to rights of way, either on foot or with carts, from the nearest highway to the 'mine,' and from the ' mine ' to the nearest running stream, spring, or natural pond ; and to use the water from such stream, spring, or pond for mining purposes. 3 But he is subject, as to the exercise of these rights, to the supervision of the Barmaster and two of the Grand Jury, or of the Steward. 6 It is not, however, competent for a miner, who sinks a shaft in the Hundred of High Peak, to use the surface land in that Hundred to dress ore and place spoil or refuse got from the Wapentake of Wirksworth, into which he may have extended his operations. 7 For the Hundred and the Wapentake are distinct, and are governed by different Acts of Parliament. 8 Indeed there is a dictum, that a miner has no New Oust. a. 7 ; 15 & 16 Vict. c. clxiii, rights which arc exerciseablc hide- sch. 1, aa, 19. 20. See, on this subject, pendently of custom, ante, p. 274. as to ' consolidated ' veins, 14 & 15 'A.4 of sch. 1 of each Act. By 15 Vict. c. 94, sch. 1, a. 27 : 15 & 16 Vict. & 16 Vict. c. clxiii (which applies to c. clxiii, sch. 1, a. 28. See Wake v. the districts other than High Peak) Hall, 8 App. Cas. 202. ornamental watersand private fisheries o Ante ' P" 509 - are excepted ; and it is provided that, 2 Except in certain specified cases ; if the way passes over inclosed lands, as to which, see a. 5 of sch. 1 of 15 the miner must make and repair & 16 VlCt " C " clxiii - proper gates and stiles, and that the • A. 5 of sch. 1 of each Act. He miner must not so use water, as to has, therefore, more than a mere defile it, or lessen it whereby cattle easement on the surface : see Wake may be deprived of a sufficiency : v. Hall, 8 App. Cas. 214. sch 1 a 4 < See Wake v. Hall, 7 Q. B. D. 299 ; e' A 'a. 4, 5, of sch. 1 of each Act. 8 App. Cas. 202, 205, 208, 209, 212, 7 Wake v. Redfearn, 43 I, T. 123 214, 215. Cf. the somewhat similar s See A. 13 of sch. 1 of each Act. New Cust. aa. 8, 10 ; 15 & 16 Vict. c. '" A. 1G of sch. 1 of each Act. See clxiii, sch. 1, a. 21. ante, p. 507. 3 Ante, pp. 509, 510. s A. 1G of sch. 1 of each Act. See 4 A. 15 of sch. 1 of each Act. ante, p. 507, 518 DERBYSHIRE RIGHTS, [CHAP. XXI. at the instance of any person, not being a litigant in an action in a Small Barraote Court, for the purpose of ascertaining whether a trespass is being committed ; and the majority of the Grand Jury are of opinion that a trespass is being com- mitted, but that the fact does not yet clearly appear; the Steward may require the alleged trespasser to give security for the value of all 'ore,' which may be gotten in his work- ings, until the fact can be ascertained. And, in default of such security, he may authorize the Barmaster to retain all such ' ore.' And if, at any adjourned ' view/ the Grand Jury are of opinion that a trespass has been committed, the injured party may obtain the benefit of and enforce the security ; or he may obtain delivery of the ' ore.' And, if either party feels himself aggrieved, he may prosecute his claim in the Small Barmote Court. 1 Forfeiture for The liability to forfeiture for neglecting to work has been non-working— a j rea( jy mentioned. 2 Although a forfeiture is incurred, the outgoing and J ° ' incoming right of property in the buildings and machinery used in con- miner. . , . ... nexion with the 'mine continues m the miner ; who may accord- ingly remove them, or receive compensation from the incoming miner for allowing them to remain. And the incoming miner may, on the other hand, require their removal, if he is unwilling that they should remain. 3 g. Tithe-owners — Creditors — ' Relievers' Tithe-owners. There is payable by way of tithe the tenth dish of all lead ore gotten in Worselworth, Hartington, and Eyam ; 4 and nine pence a load of nine dishes of all lead ore gotten in Stoney Middleton. 5 And payment maybe enforced by an action for an account. 6 Tithe-ore is not due in respect of mines in Matlock 1 14 & 15 Yict. c. 94, sch. 1, a. 28 j 315; Tapping on the Act, pp. 35, 15 & 16 Vict. c. clxiii, sch. 1, a. 2D. 36. And the custom has been pre- - Ante, p. 513. served by the Act : see s. 67. 3 See Wake v. Hall, 7. Q. B. D. s Burton v. Spencer, 2 Wood, 303 (affirmed, 8 App. Cas. 195). 336. 4 This was so by custom before the fi Brown r. Yermuden, «.<*. ; Pindar passing of 15 & 16 Vict. c. clxiii : v. Jackson, v. s. ; Burton v. Spencer, see Brown v. Vermuden, 1 Ch. Cas. v. s. 272, 282 ; Pindar v. Jackson, 1 Wood, SECT. 2.] COURTS, AND CUSTOMS. 519 or Bradbourne. 1 It is not due of common right ; or otherwise than by custom. 3 Any person claiming a debt against a miner for articles Creditor-. furnished to a ' mine,' or for mining purposes, or for work or labour in, upon, or in respect of any ' mineral property,' 3 may recover the amount due in an action of debt in the Small Barmote Court. 4 If a person ' unwaters ' or gives 'relief to any ' mine ' or "Relievers." 'vein,' the owner of the 'relieved mine ' is obliged, so long as the 'relief is continued, to deliver to the person giving the 'relief such portion of the 'ore' got in the 'relieved mine' under the level at which the 'relief has been given, as the Barmaster and Grand Jury may determine. And such portion must be ' delivered, dressed and made merchantable, by the owner without concealment or diminution ; and it must be free from all charges in getting and dressing. And the value of it may be recovered in the High Court ; or, if under £50, in the County Court. 5 Sect. 2.-REMAINING LOCAL EIGHTS AND CUSTOMS. (a) Isle of Man. Under the Act of Settlement of the Isle of Man the right of isle of Man. property in the mines and quarries, and in the minerals (not being clay and sand), in the customary estates of inheritance in the Island is vested in the Crown. But the owners of i Chappel v. Ward, 1 Wood, 113 ; county for the purpose of draining Pindar v. Jackson, ib. 315. the lead mines, upon an agreemeni 2 Buxton v. Hutchinson, 2 Vera, with the mine owners to allow them .„ a portion of the ore raised : see Ark- b See ante, p. 501. wright v. Cell, 5 M. fcW. 203, 228, 229 ; 4 A 10 of sch. 1 of each Act. Sec Tapping on the former Act, p. 25. ante p 507 The soughs are constructed through « 14 & 15 Vict, c. 94, sch. 1, a. the lands of third parties, either under 26 • 15 & 16 Vict. c. clxiii, sch. 1, a. licenses obtained from them, or as 27.' The custom, to which this statu- part of the custom: see Arkwngkt v. torv sanction is given, is one long Gell, u.s. known in Derbyshire. It has, in fact, • See Ballacorkish, &c. Mining Co. been the practice for companies of v. Harrison, L. R. 5 P. O. 49 ; A.-U. v. adventurers to construct and main- Mylchreest, 4 App. Cas. 291. tain large soughs or canals in that 520 REMAINING LOCAL [CHAP. XXL customary estates of inheritance in the customary tenements in the Island are entitled by immemorial custom to the clay and sand therein ; the custom having grown up with the tenures as one of their customary incidents, and not being incapable of having had a legal origin. 1 The Crown, and persons acting under its authority, have a customary right to go upon the customary tenements, and pierce the surface for mining pur- poses ; subject to a customary liability to make compensation to the tenants for any damage thereby done. 3 Whether a liability can exist by custom to make compensation for an act, which does not constitute legal damage, seems doubtful. 3 ((3) Staffordshire. Staffordshire. The following custom prevails with respect to ' butty colliers ' 4 in Staffordshire : — If they leave off working a coal mine without giving notice, they are not entitled to be paid for ' gate-road ing,' ' air-heading,' or coals ' undergone.' But if they give notice, they are entitled to be paid for those things by the owner of the mine. And, if the mine is not worked, they are not bound to wait until the working is recommenced, and then to look for payment to the succeeding butty colliers. 5 Durham and Yorkshire. (y) Durham and Yorkshire. Tithe is due by custom of lead ore dug in the mines called ' Grass Groves,' in Teasdale Forest in the county of Durham ; 1 A.-G. v. Mylchreest, 4 App. Cas. 294. - Ballacorkish, &c. Mining Co. v. Harrison, L. R. 5 P. C. 54 ; A.-G. v. Mylchreest, u. 8. 309. 3 Ballacorkish, kc. Mining Co. v. Harrison,//, x., t)4.G.~». Sec /////V.pp.HS'J, 390. As to the local right to dig for stone not being forfeited by a non-user for 21 years, see Christian v. Gibson, 3 Moo. P. C. 351. The Eccl. Leas. Acts do not apply to the Isle of Man : ante, p. 170, n. s : see the Bishop's Mines and Quarries (Tynwald) Act, 18G8. 4 Butty colliers are two or more working colliers who join together ; and enter into an agreement with a mine owner to get coal or ironstone from the mine, at so much a yard or so much a ton, and sometimes at so much a day. They are not allowed to under-let the work or leave it ; but they employ other workmen under them ; and they are responsible for their wages. They usually work manu- ally themselves ; and they may bind themselves to the mine owner to do so. See Bowers v. Lovekin, 6 E. & B. 584 ; Sleeman v. Barrett, 2 H. & C. 934. 5 See Bannister v. Bannister, 9 C. & P. 743. SECT. 2.] RIGHTS AND CUSTOMS. 521 and no deduction can be made for digging, winning, and getting. 1 So tithe is due by custom of lead ore when cleaned and washed in Stanhope in Weardale in the same county ; and no deduction can be made for digging, winning, and getting. 2 Tithe is also due by custom of such lead ore dug in Arkilgarthdale in York- shire as will not go through an inch ' riddle ' as it falls from the ' picks.' 3 In every case payment may be enforced by an action for an account.' 4 And the impropriator may obtain liberty in such an action to go down into the mine and inspect it, and for that purpose to make use of the defendant's tackle ; to secure himself against fraud. 5 (o) The Colonies. The principle, 6 that a grant of lands by the Crown will not The Colonies. pass gold or silver mines therein, unless they are expressly granted, applies to a grant of lands in the Colonies. It has for instance been held, that a grant of lands in Victoria made before the passing of the Imperial Statute, 18 & 19 Vict. c. 55, 7 did not operate to pass gold or silver mines ; they not having 1 Tiilly v. Halsall, 1 Wood, 74. for an account of the profits of the 2 Basire v. Wharton, ib. 83. Mendip mines, the defendant pleaded 3 Lonsdale v. Bathurst, 2 ib. 302. an Act of Parliament, which had given 4 See the preceding cases. exclusive jurisdiction of all matters 5 See Lonsdale v. Bathurst, u. s. Pe- arising within the mines to particular culiar customs also formerly prevailed Courts. The plea was overruled, on amongst the silver and copper miners the ground that there was no aver- of Northumberland, Cumberland and merit that those Courts included a Yorkshire ; amongst the miners of Court of Equity. All the customs Alston Moor in Cumberland (see Lead referred to in the preceding part of Co. v. Richardson, 3 Burr. 1344, 1345) ; this note are now obsolete. In R. v. amongst the lead miners of the Forest Baptist Mill Co. (1 M. & S. (112) there of Mendip, in Somersetshire; and in was a demise by the lord of the other parts of England. See Smirke's manor of Rowberrow, in Someiset, of Rep. of Vice v. Thomas, pp. 115 et the lot or toll of one-fourth of the seq., 121, 125, 127. In the Mendip lap')* calaminarU raised within the waste are divers "grooves" and mines manor ; but whether this had its origin of lead, for which any man may dig in custom or agreement does not ap- on payment of one-tenth, by the name pear : see p. 6 1 7. of lot-lead, to the lord of the manor 6 See ante, pp. 40, 41. of Wells : see Hippisley v. Bath & " By this Act the Crown formally Wells, cited in Elton on Commons, transferred its rights in the gold and 112. In Strode v. Little (1 Vera. 58) silver in Victoria to be dealt witli by where a bill was brought in Chancery the Colonial Legislature. 52:2 REMAINING LOCAL RIGHTS AND CUSTOMS. [CHAP. XXI. been expressly mentioned in the grant. 1 Mining rights in the Colonies are chiefly regulated by Acts of the local legislatures. 3 1 See Woolley v. A.-G. of Victoria, 2 App. Cas. 163. In Taylor v. A.-G. (8 Sim. 413) a lease by the Crown of all mines in the province of Nova Scotia was held to include mines in the island of Cape Breton. - A detailed reference to these Acts, which are numerous ; or to the decisions thereon, which are also numerous; would be outside the scope of this work. It may, however, be mentioned, that of the deci>inn^ thereon the following came before the Privy Council : — As to mining rights generally in Victoria, Walhalla Gold Co. v. Muicahy, 40 L. J. P. C. 41 : see also Col. Bk. of Australasia v. Willan, L. R. 5 P. C. 41 ; Woolley v. A.-G. of Victoria, v. s. As to the jurisdiction of the Courts of Mines there, and their relation to the Su- preme Court, Walhalla Gold Co. r. Muicahy, v. s. ; Col. Bk. of Aus- tralasia v. Willan, n. s. As to the operation in New Zealand of the Gold Fields Act, 1866, Maclean v. Maoandrew, 43 L. J. P. C. 60. As to rights to mines and Ordinary Quartz ( 'hums in Queensland, Hollyman v. Noonan, 1 App. Ca«. 595. As to rights to mines under State grants in Griqnaland West, Webb v. Giddy, Giddy v. Webb, 3 lb. 908; Webb r. Wright, 8 ib. 318. And as to rights to gold mines in Nova Scotia, Mott v. Lockhart, ib, 568. CHAPTER XXII. STRANGERS— WRONGFUL POSSESSION— WRONGFUL ABSTRACTION— MALICIOUS INJURIES. Sect. 1.— STRANGERS— WRONGFUL POSSESSION. a. Existence of Remedies. The remedy of recovery of possession is maintainable in Recovery of ,,.„,. •, possession. respect of mines, whether open or unopened/ it such mines and the overlying surface are possessed by the same person, and the remedy in respect of the mines is merely a part of the remedy in respect of the whole solum from the surface down to the centre. 2 And the same remedy is maintainable in respect of open 1 mines, as the distinct subject-matter of an action. 3 Whether it is maintainable for unopened 1 mines as the distinct subject-matter of an action, was until somewhat recently a ques- tion upon which there was no very distinct authority. 1 It was, however, stated in a somewhat recent case, that there may be 1 As to open and new mines, see Rose v. Nixon, 2 J. & W. 555. See ante, pp. 22 et seq. also Doe v. Aldcrson, Smirke's Rep. 2 Ejectment formerly lay : see of Vice v. Thomas ; Bowser v. Colby, Harebottle v. Placock, Cro. Jac. 21 ; 1 Ha. 114 ; Dartmouth v. Spittle, Goodtitle v. Alker, 1 Burr. 143 ; 19 W. R. 445. See, however, the die- Crocker V. Fothergill, 2 B. & Al. turn in Brown v. Chadwick, 7 Ir. 660. C. L. Rep. 108, a case of open quarries. 3 See Comyn v. Kyneto, Cro. Jac. See also Vice v. Thomas, u.8. ; and 150 ; Comyn v. Wheatley, Noy, 121 ; Burt. Comp. 364. See, as to licences, Sanders v. Partridge, ib. 132 ; Whit- ante, pp. 252, 253 ; as to tin bounds, tingham v. Andrews, 1 Salk. 255 ; ante, p. 430. nom. Andrews v. Whittingham, Carth. 4 Upon the point in question, see 277 (a case of coal mines in Durham, Sayer v. Pierce, 1 Ves. Sen. 232, 233 : where the number of them was not Wilkinson v. Proud, 11 M. & W. 33. mentioned) ; Rich v. Johnson, 2 Str. The sheriff could not have given pos- 1142 ; Port v. Turton, 2 Wils. 172 ; session of unopened mines : see Cole Sayer v. Pierce, 1 Ves. Sen. 232; on Eject. 91. 524 STRANGERS — [chap. XXII. Establishment of title — generally. Land Reg. Act. a corporeal right to unopened mines ; of which of course possession may be recovered. 1 And proceedings are maintainable to establish a title to mines. Even before the Judicature Acts, although the legal estate might not have been outstanding, such proceedings were almost always maintainable in equity ; 2 either on the ground, that mines were a species of trade, and that the taking of an account was usually required ; 3 or on the ground, that the mine in question might be ruined, if it were necessary to wait for the legal remedy ; 4 or on the ground, that a question as to confusion of boundaries was usually involved. 3 A title to mines and minerals may also in substance be established under the Land Registry Act. 6 i>. Loss of Remedies. Limit. Acts— A title to mines or quarries, as part of the entire solum from mlaSeTas ^ e surface down to the centre, is capable of acquisition under part of entire the Limitation Acts. 7 And a title may be acquired against a s0 ^ um * • public body, such as the surveyors of highways, no less than against an individual. 8 And, if the Acts of the person who 1 See Low Moor Co. r. Stanley Coal Co. 34 L. T. X. S. ISC, per Lord Cairns. This was in the same case doubted by Mellish, L. J. ; in conse- quence of the passage in Shep. Touch., cited ante, p. 202, n. : . Mellish, L. J. construed the passage as meaning, that in every case a right to dig mines was a mere incorporeal heredita- ment. But Lord Cairns construed it as merely meaning, that in every case the particular language of a deed should be examined in order to ascertain the intention. - See Story v. Windsor, 2 Atk. 630 : Falmouth v. Innys, Mosely, 89. 3 Story v. Windsor, v. s. See also ante, p. 57, n.'-\ and other cases there cited ; and see Phillips v. Homfray, 52 L. J. Oh. 405. 4 Falmouth v. Innys, u. s. 5 Sayer v. Pierce, 1 Ves. Sen. 233 : see also Vice v. Thomas, Smirke. As to production of documents in cases as to boundaries, sec Adams r. Lloyd, 3 H, \ X. 351 ; Jenkins v. Bushby, 35 L. J. Ch. 400 ; Ponsonby v. Hartley, W. X. 1883, 13, 44. 6 25 ,v: 26 Vict. c. 53. The Act obliges an applicant thereunder to state in the description of the land to be furnished by him, whether or not he claims to be entitled to all or any of the subjacent mines and minerals. And, unless he expre>^ly mentions mines or minerals, they are deemed not to be included. And, if he expressly mentions them, it be- comes the duty of the registrar to have especial regard thereto in all subsequent inquiries to be made by him with respect to such land, and in the investigation of the title thereto, and also in the service of the statu- tory notices : see s. 9. 7 3 & 4 Will. 4, c. 27 ; 37 & 38 Vict. c. 57. s Thew v. Wingate, 10 B. & S. 714, n. : Smith r. Stocks, ib. 701. SECT. 1.] WRONGFUL POSSESSION. 525 claims the title show such a possession as would have enabled him to maintain trespass against a stranger for entering and working, that fact, of itself, stamps his possession as an adverse possession ; in respect of whieh the Limit. Acts may commence to operate. 1 Theiu v. Wingate 2 is an example of the acts which will Thew o. suffice for this purpose. There, under an Inclosure Act, an allot- in s ate - ment (called No. 158) of land containing a gravel pit was made to surveyors of highways for repairing purposes ; and adjoining lands were allotted to another person. The surveyors obtained gravel from No. 158 down to the year 1813 ; but thenceforth until 1858 they never entered or exercised any right thereon. In 1813 the adjoining allottee built a cottage and barn, and other buildings, on part of No. 158, and inclosed part of it with a fence. About the same time he cut off a corner of it ; and he thereafter used such corner with part of his own allotments as one entire arable field. In 1814 or 1815 he cleared out the pit, and converted it into a pond. It was held, that the acts of the adjoining allottee, being acts of ownership in parts of the sub- soil of a single and undivided piece of land, were evidence that he. had taken possession of the whole; that such possession would have enabled him to maintain trespass against a stranger for meddling with the subsoil ; and, accordingly, that he had acquired a title against the surveyors. So in Smith v. Stocks. 3 Smith v. There, under an Inclosure Act, a gravel pit was allotted to surveyors of highways for repairing purposes. The pit was entirely surrounded by the plaintiff's land. From 1837 to 1863 the surveyors ceased to take gravel from the pit, and took no steps to assert their right thereto. In 1 837 a tenant of the plaintiff's predecessor filled up part of the pit ; and he cultivated the surface as arable land until 1863. In 1839 another tenant ploughed up the remaining portion ; and he cultivated it as arable land until 1863. It was held, that the title of the surveyors was barred by the Statute of Limitations. And in the same case the fact, that the first-mentioned tenant was in 1844 elected a surveyor, and held office for a year, was 1 Thew u. Wingate, 10B.&S. 7 14, ii. : - 10 B. & S. 714, n. see p. 721, n., per Blackburn, J. As 3 lb. 701. to trespass, see infra, Sect. 2, b. 52G STRAXGERS- [CHAP. XXII. Not necessary to inclose surface. Limit. Acts — mines or quarries as separate subject- matter. held insufficient to interrupt the running of the Statute ; the character of his possession as tenant not having been altered during his year of office. However, it would appear, that, to acquire a title to mines or quarries, as part of the entire solum from the surface down to the centre, it is not necessary that the surface should be inclosed or fenced. It has been laid down, that in such a case adverse possession may be acquired by an user, such as a farmer might exercise over his farm. 1 A title to mines or quarries, whether open or unopened, 2 as a separate subject-matter, is also capable of acquisition under the Limit. Acts, if the person claiming them has already the exclu- sive right to the surface. 3 And if his acts show such a posses- sion of them as, if he were not already entitled to the surface, would have enabled him to acquire a title to them as part of the entire solum from the surface down to the centre, they will enable him to acquire a title to them as a separate subject- matter. 4 And a title to mines or quarries, whether open or unopened, 2 as a separate subject-matter, is equally capable of acquisition, where the person claiming them has not already the exclusive right to the surface. 5 For the same principle must apply where mines or quarries are approached laterally as that, which applies where they are approached vertically. And in the case of unopened 2 mines forming a separate subject-matter, it has been held, that where a tenancy at will had been established by an entry into possession under an unenrolled bargain and sale, the Statute of Limitations began to run from the first year of such tenancy ; so as, after the proper lapse of time, to perfect the title of the bargainee. 6 And an unmistakeable adverse possession would probably be shown, if the mine or quarry in 1 See Seddon v. Smith, 36 L. T. 168, 1G9. Cf. the law in the case of licences, ante, p. 253. 2 As to open and new mines or quar- ries, see ante, pp. 22 ct ceq. 3 See Thew v. Wingate, 10 B. & S. 714 n., 721 n.,per Blackburn, J. 4 lb. : see ante, p. 525 As to Scotch law, see Fleeming r. Howden, 6 Sess. Cas. (3rd ser.) 7S3. 5 See Dartmouth r. Spittle. 19 W. I!. 415. 6 Low Moor Co. v. Stanley Coal Co. 34 L. T. 186, per Lords Cairns and Coleridge. Hellish, L. J. doubted whether the Statute conld apply ; on the ground, that ejectment would not have lain : see ante, p. 524, n. \. Cf. Story v. Windsor, 2 Atk. 630, 632. SECT. 1.] WRONGFUL POSSESSION. 527 question were surrounded on all sides with galleries, and a certain defined area so opened out. 1 However, as has been already seen, 2 where there is an entry Possession of r. •/•iii part of a mine into possession of part of a mine, the possession of the whole —possession will, or will not, in general, be presumed, according as the pos- ° ea ^ 1 } '"° session of the part is rightful, or under a colour of right, or is wrongful. And from this it follows, that where the entry into possession is wrongful, a title can, in general, be only acquired in respect of the part of which actual physical possession has been taken. 3 Where a man enters on and takes possession of one seam of coal, and by lapse of time acquires a title to it, the law will not presume that his possession extends to all the other seams of coal lying under that particular one. 4 Mere non-user by a mine owner, no matter for how long a Non-user. time, will not give the surface owner a title to mines or quarries by prescription. In the case of other kinds of property the inference of an abandonment of a right by non-user may fairly be made. But not in the case of mines. For mines are fre- quently purchased or excepted for the express purpose of keeping them unwrought until other mines shall be exhausted. These propositions were laid down long before the first Real Prop. Limit. Act 5 came into operation. Indeed in one case it was laid down, that there could be no presumption of a grant of mines, in the face of an express exception on a sale many years pre- viously ; although the mine owner had permitted an expenditure by the surface owner in respect of the mines without making any claim thereto. 7 And the Limit. Acts have not made any change in the law. In McDonnell v. McKinty, 8 a case decided since the first of them came into operation, it was said : — "Discontinuance means an abandonment of possession by one person followed by the actual possession of another person." » See Ashtou v. ■ Stock, 6 Ch. D. Co. 34 L. T. N. S. 186, 189. 726. See also Seaman v. Yawdrey, 5 3 & 4 Will. 4, c. 27. 16 Ves. 392 ; Mawson v. Fletcher, ° See Seaman v. Vawdrey, 16 Yes. 10 Eq. 214, 219 ; 6 Ch. 94. 392 : see also Crang v. Adams, 5 B. P. C. 2 A n t e p. 41, 588 ; Hodgkinson v. Fletcher, 3 Doug. 3 McDonnell v. McKinty, 10 Ir. L. 31 ; Adair v. Shaftoe, cited, 19 Yes. E. 527 ; Dartmouth v. Spittle, 19 W. 156. R. 445. See also Ashton v. Stock, n. s. 7 Adair v. Shaftoe, n. s. 4 See Low Moor Co. v. Stanley Coal s 10 Ir. L. E. 514. user. 528 STKANGEES [CHAP. XXII. .... " Only by user of them, or by some unequivocal act of possession," can a person who has excepted mines from a sale be dispossessed by lapse of time. 1 , . . " Mines from their nature are exempted from the presumption, which non-user justifies in other kinds of property; for mines are frequently purchased or excepted with a view to their being- opened and worked at a future time." 2 The Limit. Acts do not apply to the mere want of actual possession by the owner ; but to cases where the owner has been out of possession, and some other person has been in possession. 3 Thew v. Wvngate 4 is an example of the acts of possession which will be regarded as " unequivocal." 5 Purchase and The observations in McDonnell v. McKinty are not, it exception mi i l i r> l probably on will be observed, confined to the case of a mine being ex- asTJnon- 0111 ^ ce P te( l fr° m a sale. They are also applied to the case of a mine being purchased. 6 In other words, they are applied not merely to non-user by a person who has once been in possession; but to non-possession by a person, who, with the right to take, has never actually taken, possession. And it is submitted that this is the law. And, if so, it is not neces- sary, that a mineral lessee, whom the Statute of Uses may not have clothed with possession, should make an actual entrv within the period prescribed by the Limit. Acts, in order to preserve his rights against his lessor ; the latter not having been himself in adverse possession. Indeed, if the law were otherwise, the lessor of a mine, whose lessee could not avail him- self of the Statute of Uses, and was disentitled to work, 7 miffht it would seem, without any default by the lessee, insist that upon the expiration of twelve years from the date of the lease, the right of possession had become, ipso facto, revested. 8 In 1 P. 52(5. 383, 385. 2 P. 527. Cf. Jamieson v. Harvey, * 10 B. & S. 714 n. W. N. 1876, p. 277. & See the facts stated, 'inte, p. 3 Smith v. Lloyd, 9 Exch. 562, 525. 572 ; Thew v. Wingate, 10 B. & S. 6 See supra. See also Seaman v. 719 n., 720 n. ; Smith v. Stocks, ib. Yawdrey. 1 equally apply where it is severed from the surface under an Act of Parliament. 2 A wrongdoer cannot, by merely having worked for more Trespass. than twelve years from his own mine into a mine belonging to his neighbour, and without more, claim a title to his neighbour's mine under the Limit. Acts. 3 A claim to a given substratum of coal lying under a close, Prescript. not being a claim to a right of profit a 'prendre, but a claim to a part of the soil itself, cannot be sustained under the Prescription Act. 4 All claims of the Duke of Cornwall to mines or minerals in Duchy of Cornwall are barred, where the land has been held and enjoyed m °i™ era i s . adversely without interruption or disturbance for sixty years; and the mines and minerals have been substantially worked at any time during that period by the person in enjoyment ; and have not at any time during that period been worked, or the tolls, dues, royalties, and other profits enjoyed, by the Duke or persons claiming under him. 5 And all such claims are equally barred, where the land has been held and enjoyed adversely without interruption or disturbance for 100 years; and the mines and minerals have not at any time during that period been worked, or the profits enjoyed, by the Duke or persons claiming under him. 6 But time does not begin to run as to reversions until they fall into possession; 7 nor as to heredita- ments granted for limited estates until such estates fail. 8 And the bar does not extend to any mines or minerals determined 1 2 E & 13. 132. 4 Wilkinson r. Proud. 11 M. k W. 2 See Thew v. Wingate, 10 B. & S. 33. See s. 1 of the Act cited, ante, 714, n., the facts of which are partly p. 97, n. 5 . stated, ante, p. 525. 5 7 & 8 Vict. c. 105, s. 73. 3 Dartmouth v. Spittle, 19 W. R. ° S. 74. 444 ; Ashton v. Stock, 6 Ch. D. 719, ~> S. 76. 726. S S. 77. 51 M 530 STRANGERS — WRONGFUL [CHAP. XXII. to belong to the Duke by the award under the Act 7 & 8 Vict, c. 105. 1 Sect. 2.— STRANGERS- WRONGFUL ABSTRACTION— CIVIL REMEDIES. a. Existence of Remedies — Person Liable. Generally. If a stranger enters on another man's land, and works or abstracts his minerals, whether by breaking bounds, or other- wise, the injured party is, prima facie, entitled to a remedy. 2 And to entitle a person to a remedy, it is not necessary that he should be in esse at the date of the wrongdoing. A contingent remainderman, upon coming into esse, may, for example, have a remedy in respect of previous wrongful workings. 3 However, where it is ultra '-ires of a company, such as a railway company, or a harbour company/ to work mines, no remedy can, it seems, be had against them by a person, whose minerals they may have wrongfully abstracted. 5 Person liable. The actual wrongdoer is not, of necessit}', alone liable. A person who shares the profits of the wrongdoing ; as, for instance, an employer, 6 or a partner ; ~ may be also liable. And where third parties work mortgaged minerals under an authority given by the mortgagee, and the mortgagee has no power to give the authority, the third parties are liable to the mortgagor. 8 And persons may also be liable, who take part in the wrongdoing ; although they do not share the profits. 9 And, of course, persons, under whose directions minerals are wrongfully removed, may be liable ; although the act of getting and winning is done by 1 See s. 80. See ante, p. 39. D. 845, 855, 856. 2 An issue will, if necessary, be cli- fi See Thomas v. Atherton, 10 Ch. rected to ascertain the facts as to D. 198 ; Joicey r. Dickinson. 45 L. T. the working : see A.-G. r. Chambers. N. S. 643. A.-G. r. Rees, 4 De G. & J. 55, 73, where 'See Thomas v. Atherton, «. *., an issue was directed to ascertain, 197. whether there had been a working s Hood v. Easton, 2 Giff. 692. 697, below the present or former line of 69S ; 2 Jur. X. S. 917. high water at ordinary tides. 3 Powell v. Aiken (4 K. & J. 343, 358) 3 Garth v. Cotton, 1 L. C. 780. only decided, that the remedy was 4 Ante, p. 86. not available in Equity before the 5 Eccl. Comms. r. N. E. R. Co., 4 Ch Jud. Acts. SECT. 2.] ABSTRACTION — CIVIL REMEDIES. 531 another. 1 Where two or more persons are together guilty of the wrongdoing, each is answerable for the whole of the damage. 2 A mortgagee cannot be made accountable for the acts Liability of of his mortgagor in possession, who is guilty of wrongfully acts of mort- abstracting or working the minerals of third parties. 3 And gas ° r it makes no difference that the proceeds of the abstracted minerals are applied by the mortgagee in reduction of his debt ; if he has no notice of the wrongful acts of the mortgagor. 4 It has, however, been intimated that, if, after a mortgagor has wrongfully abstracted or worked minerals belonging to third parties, the mortgagee goes into pos- session ; and, although without knowing that he is acting wrongfully, himself continues the abstraction ; the onus may possibly lie upon him to show how much he himself abstracted, and how much his mortgagor abstracted. 5 And where a mort- o-ao-or abstracts minerals from the land of another ; and sells them, and pays over the proceeds to the mortgagee ; the mortgagee, if he has known of the abstraction, may be made liable. 6 b. Damages — Account If the injured party has a right of property in the abstracted Where injured . . party Las right minerals, he may, in general, maintain an action to recover f pror erty. them. 7 Or he may maintain trespass. 8 Or, if the minerals have been sold, he may recover damages. 9 Or he may have an 1 See Powell v. Aiken., 4 K. & J. 527, 528. 534. 343 : see the form of the order at 1 Attersoll v. Stevens. 1 Taunt, p. 359. 18:5, 199, 201. Trover formerly lay : 2 See Addison on Torts, 84, 85 ; and see Wood r. Morewood, 3 Q. B. II". cases there cited. See the forms of n. ; Eardlcy v. Granville, 3 Ch. D. the decrees in Hood v. Easton. 2 Giff. 826, 833. 701 ; Phillips v. Homfray, 6 Ch. 771. 8 See Martin v. Porter, 6 M. k W. 77 5 77C. 351 : Morgan r. Powell, 3 Q. B. 27> ; 3 Powell v. Aiken, u. s. Cf. Brain v. Wild v. Holt, it M. & W. 672 ; C'i Thomas, 50 L.J. Q. B. 662. v. Dearden, 12 Q. B. 576; Brain r. 4 Powell v. Aiken, u. s. Harris. 10 Exch. 00S ; Dartmouth r. 5 Powell v. Aiken, it. s., 343, 353, Spittle, 19 W. P. 444 ; Loosemore v. 354. See the form of the order, 359. Tiverton, &c, P. Co.. 22 Ch. D. 42, 43. 360. 44. 6 Powell v. Aiken, v. s., 349, 350. 9 See Seddon v. Smith, 36 L. T. Cf. Elias r. Griffith, 8 Ch. D. 521, N. S. 168. An action for money had M H 2 532 STRANGERS — WRONGFUL [CHAP. XXII. account. 1 Even before the Jud. Acts an account was usually 2 maintainable in equity ; mining operations having always been Or is presumed regarded as a species of trade. 3 And even if his right of pro- perty rests on mere legal presumption, he is entitled to similar remedies. And if he shows a right or colour of right applying to a whole mine or vein, and acts of ownership exercised over the minerals in parts, the law will, as against a stranger, pre- sume his right of property over the minerals in the other parts. 4 And he will sufficiently show a right applying to a whole mine or vein, if he shows that he has an agreement for a lease thereof, and that he could compel the lessor to perform it. For in such a case he will be treated as constructively in possession. 5 And if he shows acts of ownership in parts of the subsoil of a single and undivided piece of land, they may be evidence that he has taken possession of the whole ; and the law may, as against a stranger who meddles with the subsoil, presume his right of property over the whole. 6 Indeed, if such a presump- tion can be made, that fact will, of itself, as has been already seen, 7 stamp his possession as an adverse possession ; and enable it, as against the actual owner, to ripen into property by lapse of time accordingl}'. and received formerly lay : see Powell some impediment to obtaining a legal r. Pees, 7 A. & E. 426. remedy (Vice v. Thomas, Sinirke's 1 See Strode v. Little, 1 Vem, 58 ; Rep.) ; or did not show possession Thomas r. Oakley, 18 Ves. 181 ; (Sayer v. Pierce, 1 Yes. Sen. 232 ; Thomas v. Jones, 1 Y. & C. C. C. 510, Parrott v. Palmer, 3 M. & K. 645). 526 ; Eads v. Williams, 4 De G. M. & 3 See Story v. Windsor, 2 Atk. 630 ; G. 674, 693 ; Dean v. Thwaite, 21 Jefferys v. Smith, 1 J. & W. 302 ; Beav. 622 ; Hood v. Easton. 2 Giff. Pose v. Nixon, 2 ib. 555 ; Williams r. 692, 697, 698 ; 2 Jur. N. S.917 ; Powell Atten borough. T. & R. 73. See also v. Aiken, 4 K. & J. 343 ; Hunt v. ante, p. 57, n. - and other cases there Peake, Joh. 705 ; Ernest v. Vivian, cited ; and see Phillips v. Homfrav, 33 L. J. Ch. 517 ; Ackroyd v. Briggs, 52 L. J. Ch. 405. 13 L. T. X. S. 521 ; Hilton v. Woods, 4 See Taylor v. Parry, 1 Scott, N. R. 4 Eq. 432 ; Plant v. Stott, 21 L. T. 576 ; Wild v. Holt, 9 M. & W. 672. N. S. 106; Llynvi Co. v. Brogden, 11 Cf. Davis v. Shepherd, 1 Ch. 410, Eq. 188 ; Jegon r. Vivian, 6 Ch. 742 ; 414, 415, 416, 417. 420 ; Low Moor Phillips v. Homfrav. ib. 770 ; Eccl. Co. r. Stanley Co., 33 L. T. 436, 34 ib. Commis. v. N. E. R. Co., 4 Ch. D. 845 ; 1S6. Ashton v. Stock. 6 ib. 719 ; Trotter v. 5 Davis v. Shepherd, u. s. ; ante, p. Maclean, 13 ib. 574. 41, 2 It would have been refused, if the 6 Thew v. Wingate, 10 B. k S. 721, party seeking it did not show some n. per Blackburn, J. privity with the other party, or " Ante, p. 525. SECT. 2.] ABSTRACTION — CIVIL REMEDIES. 5,33 If the injured party has the right of possession; as, if lie is Where injur,-! a tenant for life or years impeachable of waste, 1 or a tenant [^J from year to year, 3 or a tenant at will, 3 or a copyholder ; i he may, in general, maintain trespass. Or he may have an account. 5 And the benefit of a remedy may not be confined to the injury to re- immediate owner or possessor. The reversioner on a lease lias trSpasTby been held entitled to maintain case against a trespasser for raUwa y com ' ° L pany. digging coal in the lessees' land. 6 A person, who would other- wise be entitled to maintain trespass, is not the less entitled, because the wrongdoers are a railway company, who have entered upon minerals which have been reserved to him. The company cannot in such a case say, that he has only been "injuriously affected" under sect. G of the Rail. CI. Cons. Act, 1845 ; 7 and is only therefore entitled to the compensation recoverable thereunder. 8 c. Measure of Damages. (a) Generally. Damages for the wrongful working or abstraction of minerals Different . . measures of may be assessed according to the value of the minerals at the damages. pit's mouth ; without making any allowance for the expense of getting and severing, or of bringing to bank. Or they may be assessed according to the value when got and severed ; allowing for the expense of bringing to bank, but not for the expense of 1 Keyse v. Powell, 2 E. & B. 132 ; value of minerals abstracted, see ib. ; Hollyman v. Noonan, 1 App. Cas. Hunt v. Peake, Joh. 713 ; Jegon ?■. 595. See also Cox v. Glue, 5 C. B. Vivian, 6 Ch. 712. 7C,i>. '1'hc account 519. See ante, p. 32. may be taken by a referee : see Dean 2 Keyse v. Powell, u.s. See ante, v. Thwaite. 21 Beav. 623,624 ; Craven p. 32. v. Kaye, Set. 205; Eccl. Comms. v. 3 Low Moor Co. v. Stanley Coal Co., N. E. R. Co., 4 Ch. D. 845, 867, 868 : 34 L. T. N. S. 1S6. See ante, p. 32. Joicey v. Dickinson, 45 L. T. X. S ■> Lewis v. Branthwaite, 2 B. & Ad. 643. 437 ; Bowser v. Maclean, 2 De G. F. c Piaine v. Alderson, 6 Scott, 691. & J. 415 ; Eardley v. Granville, 3 Ch. Cf. Harker v. Birkbeck,3 Burr. 1500n. D. 826, 833. See ante, p. 34. " See ante, p. oil n. '. 5 For the form of an order directing s Loosemoro v. Tiverton. &c., R. Co., an account, see Belli'. Joell, Set. 203 ; 22 Ch. D. 25, 43. As to trespasses in Baynton r. Leonard, ib. And for the the Forest of Dean, see ante, p. I'.' 1 .', form of an inquiry for ascertaining the 534 STRANGERS — WRONGFUL [chap. xxir. Former reme- dies at law. Remedies in equity — bona fides. getting and severing. Or they may be assessed with an allow- ance for the expense both of getting and severing, and also of bringing to bank. Formerly, where the remedy was sought at law in trover, the plaintiff, if, before action brought, he had demanded delivery of the severed chattel, and the demand had not been complied with, was apparently entitled to recover the value of the chattel ; without allowing for the expense either of getting and severing, or of bringing to bank. 1 Where, however, the remedy was sought at law in trespass, and no previous demand had been made, the plaintiff was entitled to recover the value ; without allowing for the expense of getting and severing ; but allowing for the expense of bringing to bank. 2 Furthermore, it was laid down in one of the cases at law, 3 that, if the defendant had not been guilty of fraud or negligence, but had honestly believed that he was acting within his rights, he ought to be allowed the expense of getting and severing, as well as of bringing to bank. 4 However, in equity the right of the defendant to an allow- ance has usually been held to depend upon whether he has acted bond or maid fide. If lie has acted, as it has been described, " fairly and honestly ;" or " inadvertently ;" or under a " mere mistake ;" or under a " bond 'fide belief of title ; " 5 or even in the bond fide expectation, that he was about to obtain a title, and the injured party has (or must be treated as having) 1 Martin v. Porter, r> M. & W. 352, per Parke, B. ; Wood v. Morewood, 3 Q. B. 440 n.. 441 n.. per Parke, B. ; Morgan v. Powell. 3 Q. B. 281, per Coleridge, J. : Livingstone v. Paw- yards Coal Co., 5 App. Cas. 39, 40,^?' Lord Blackburn. - Martin v. Porter. 5 M. & W. 352, 354 ; Morgan v. Powell, 3 Q. B. l'7^ : Wild v. Holt, 9 M. & W. 672 ; Hunter v. Gibbons, 1 H. & X. 466 ; Jegon v. Vivian, 6 Ch. 760. 3 Wood v. Morewood, 3 Q. B. 441 n. Wood v. Morewood was only a Xisi Prins decision ; but it received the express sanction of Lord Blackburn in Livingstone v. Piawyards Coal Co., 5 App. Cas. 40. 4 See also Wild v. Holt. 9 M. & W. 673 : Hood v. Easton, 2 Giff. 699, 700 ; Jegon v. Vivian. 6 Ch. 761. Cf. Jones v. Gooday, 8 M. & W. 146. 3 Hilton r. Woods, 4 Eq. 432, 440 ; Jegon v.Vivian, 6 Ch. 742, 760. 761. 7«',2 : United Merthyr Co., 15 Eq. 46 ; Job v. Potton, 20 Eq. 84, 97 ; Ashton v. Stock, 6 Ch. D. 719. 727 ; Brown v. Dibbs. 25 W. R. 776 ; Elias v. Griffith, 8 Ch. D. 529 ; Trotter v. Maclean, 13 Ch. D. 574, 586 ; Livingstone v. Piaw- yards Co., 5 App. Cas. 25, 34, 40 ; Joicey v. Dickinson, 45 L. T. N. S. 643 ; Tucker v. Linger, 21 Ch. D. 29 (affirmed 8 App. Cas. 508). See also Hunter v. Gibbons, 1 H. & X. 466 : Powell v. Aiken, 4 K. & J. 359. SECT. 2.] ABSTRACTION — CIVIL REMEDIES. 535 known of the abstraction; 1 he has usually been allowed the expense both of getting and severing, and also of bringing to bank. 2 Indeed, in a case, where minerals A., consisting of an acre and a half only in extent, were surrounded on all sides by minerals B. ; and it was believed by both the owner of A. and the lessees of B., that minerals A. w r ere included in the lease of B. ; and it was impossible for the owner of minerals A. to have worked them to a profit himself, or to have disposed of them except to the lessees of B. ; and the lessees of B. worked out and disposed of A. ; it was held, that the remedy of the owner of A. was confined to the value to him of minerals A. at the time they were taken ; and that, in the circumstances, the best estimate of that value was a sum calculated at the rate of the royalty paid by the lessees of B. under their lease. 3 And, in another case, an honest wrongdoer w r as, on similar principles, in addition to the above-mentioned allowances, held entitled to an allowance for carrying to market. 4 If, on the other hand, the defendant has acted, as it has been No colour of described, "without any colour of title;" or "in a manner ge ° nce) ^ wholly unauthorized and unlawful;" or if his conduct has been " negligent " or " wilful ;" he has usually been held not entitled to an allowance for getting and severing. 5 Thus, where the mortgagor of a mine worked into his neighbour's mine ; and the mortgagees entered into possession, and continued the workings, but without knowing that they were wrongful ; an inquiry was directed to ascertain the value at the pit's mouth of all the coal abstracted by the mortgagees ; allowing them the expense of bringing to bank, but not of getting and i Trotter v. Maclean, 13 Ch. D. 574. 5 Powell v. Aiken, 4 K. & J. 343 ; 586. In this case one of four trustees Llynvi Co. v. Brogden, 11 Eq. 188; had actual knowledge ; and, it being Phillips v. Homfray. Futhergill v. his duty to impart it, knowledge was Phillips, 6 Ch. 770, 77(5, 780 ; Job v. imputed to the others: see pp. 585,588. Potton, 20 Eq. 97; Eccl. Comms. v. - For the form of the order, see N. E. B. Co., 4 Ch. D. 845, 86S ; Thomas Powell v. Aiken, 4 K. & J. 359, 360 ; v. Atherton, 10 ib. 200, 202 ; Trotter Job v. Potton, 20 Eq. 99 ; Hilton v. v. Maclean, 13 id. 574, 587 ; Joicey v. Woods, Set. 206 ; Jegon v. Vivian, 6 Dickinson, 45 L. T. X. S. 643 ; Tucker Ch. 762; Set. 205, 206; Ashton v. v. Linger, 21 Ch. D. 29 (affirmed 8 App. Stock, Set. 1652. Cas. 508). For the form of the order, 3 Livingstone v. Rawyards Co., 5 see Llynvi Co. v. Brogden, 11 Eq. 191 ; App. Cas. 25. Set. 206 ; Phillips v. Homfray. 6 Ch. 4 Brown v, Dibbs, 25 W. E. 77**.. 775, 776. 530 STRANGERS WRONGFUL [CHAP. XXII. severing. 1 So, where a mine was vested in trustees without power to lease it ; and the owner of an adjoining mine com- menced to work into the trustees' mine, in the bond fide belief that he was about to obtain a lease from them ; and notice was subsequently given to the adjoining owner, that no lease could be granted; it was held, that, in respect of workings subsequent to the date of the notice, the adjoining owner could only be allowed the expense of bringing to bank. 2 Intentional If the wrongdoer is guilty of intentional fraud, and his con- duct amounts to larceny, his position is not in equity more disadvantageous. No doubt there are cases apparently de- ciding, 'that where the wrongdoer is guilty of larceny, he is disentitled not merely to an allowance for getting and severing, but to an allowance for bringing to bank. 3 And there are dicta in other cases, which are actually or apparently to the same effect. 4 But any decisions or dicta to that effect must now be Stranger treated as overruled. 5 Where, however, the minerals in question working by r j ». . , , authority of formed part ot a property in mortgage ; and the mortgagee had no right to work them, and was bound to account for their value without obtaining any allowances ; c a stranger professing to work under his authority was held to stand in the same position. 7 But the decision is of at least doubtful correctness. 8 Result of the Having regard to the provisions of the Jud. Act, 1873, that, in all cases of conflict between the rules of equity and of law, the rules of equity shall prevail, 9 the following propositions may be laid down respecting the subject now in question : — 1 See Powell v. Aiken, 4 K. & J. Job v. Potton, 20 Eq. 91, 97. per 343. See the observations on this case Bacon, V.-C. ; Livingstone v. Raw- in Llynvi Co. v. Brogden, 11 Eq. 191. yards Coal Co., 5 App. Cas. 34, 39, per 2 Trotter v. Maclean, 13 Ch. D. 574. Lords Hatherley and Blackburn. 3 See Plant v. Stott, 21 L. T. N S. 5 See Trotter v. Maclean, 13 Ch. D. 106; where an account was directed 5S6,^'r Fry, J. ; Joicey v. Dickinson, of the ' full market value ' of the 45 L. T. N. S. 643, per Baggallay. severed minerals. From the short Lush, and Lindley, L.JJ. form of the decree in Bell v. Joell, 6 See, as to this highly punitive given in Set. (p. 203). all allowances remedy in the case of a mortgagee, would seem to have been there also ante, p. S4. excluded. 7 Hood v. Easton, 2 Giff. 692, 699, 4 See Hilton v. Woods, 4 Eq. 440, 700, 701. per Malins, V.-C; Jcgon v. Vivian, 8 See S. C. on appeal, 2 Jur. N. S. 6 Ch. 701, 762, per Lord Hatherley ; 917, 918. United Merthyr Co., 15 Eq. 47 n. 9 36 & 37 Vict. c. 66, s. 25, sub-s. 11. mortgagee. law SECT. 2.] ABSTRACTION — CIVIL REMEDIES. 537 (1) Where the wrongdoer acts under a bund fide belief, that he is entitled to remove the minerals in question, damages will usually be assessed against him on the principle of allowing him the expense both of getting and severing, and also of bringing to bank. (2) Where the wrongdoer is guilty of negligence or inad- vertence, or otherwise acts without any colour of right, he will usually be allowed the expense of bringing to bank, but not of getting or severing. (3) The same principle will apply, although the wrongdoer is guilty of intentional fraud, and his conduct amounts -to larceny. (8) Consequential Damage — Unsaleability of Minerals — Tra de A llowa nces. Where the wrongdoer might otherwise, in accounting, be Consequential entitled to allowances, he may possibly disentitle himself, if he has worked in such a manner as to seriously injure the rest of the plaintiff's mine. 1 And it is quite clear, that the wrongdoer may now be made directly liable for all consequential injury which may be caused ; whether by reason of surface damage ; 3 or by reason of the rest of the plaintiff's minerals being ren- dered unworkable, or useless ; 3 or otherwise. 4 So, if the result of the wrongdoer's conduct is to remove a barrier, and thereby render the plaintiff's mine liable to be invaded by water, the plaintiff may be entitled to additional damages for this indirect injury. 5 However, if, as the result of the wrongdoer's conduct, a 1 Powell v. Aiken, 4 K. & J. 343, per Bell v. Joell, Set. 203; Llynvi Co. v. Wood, V.-C. Brogden, 11 Eq. 192; Set. 206; * See Hunt v. Peake, Joh. 705; Phillips v. Homfray, 6 Ch. 776, 781; Livingstone v. Rawyards Coal Co., 5 Williams v. Raggett, 23 W. R. 874 ; App. Cas. 25, 31. Set. 1652. The law was laid down the 3 See Jegon v. Vivian, 6 Ch. 742, other way in Powell v. Aiken, u. t. 759 762. ( see P. 351) : but this was before Lord 4 See Nelson v. Bridges, 2 Beav. Cairns' Act and the Judicature Acts. 244 ; Plant v. Stott, 21 L. T. N. S. 106. 5 Plant v. Stott, u.s. ; Eccl. Comms. In Jegon v. Vivian, «. s., a general v. N. E. R. Co., 4 Ch. D. 845. 867, 868. inquiry was directed as to the damages, Cf. Jegon v. Vivian, 6 Ch. 769 : and which the plaintiff had sustained by see the first inquiry in the mimit, 3, reason of the defendant's workings. p. 762. For the form, see Set. 205. See also 538 STRANGERS WRONGFUL [chap. XXII. Unsaleability of minerals. Trade allowances. barrier is removed, and compensation is recovered for the act of trespass, the wrongdoer's liability in respect of it is at an end. He cannot be made liable in respect of a subsequent influx of water through the aperture. For he incurs no obli- gations in consequence of his mere omission to close it up. 1 The mere circumstance, that the injured party could not have sold the severed minerals, but could only have consumed them upon the premises beneath which they lay, does not affect the measure of damages. 2 But it may be otherwise, if he could not have got them, or could only have got them at a ruinous expense. 3 Under an order allowing " actual costs and expenses ;" or "disbursements;" 4 or, it seems, "just allowances;" 5 profit or trade allowances will not be included. Tenant for life or year?. (/. Mode of Dealing with Proceeds. Where during the possession of a tenant for life or years, who is entitled to work minerals, they are severed by a stranger, the damages recoverable against him 7 will belong absolutely to such tenant for life or years. 8 His right thereto cannot be affected by the circumstances, that he might not himself have worked the minerals during the period of his interest; and that, if he had not done so, they would have devolved as part of the inheritance upon the remainderman or reversioner. 9 "Where during the possession of a tenant for life or years, who is not entitled to work minerals, 10 they are severed by a stranger, the damages recoverable against him 7 will be dealt with as follows : — If, at the time of the severance, there is not any person iu esse entitled to an estate of inheritance in reversion or remainder in the mines or quaiTies, the proceeds, or the amount to be accounted for, will be invested and dealt 1 Clegg v. Dearden, 12 Q. B. 576. 2 Ashton v. Stock, t) Ch. U. 7 lit, 72ti. 3 See Livingstone v. Rawyards Coal Co., 5 App. Cas, 25 ; ante, p. 535. 4 United Merthyr Co., 15 Eq. 46. 5 See p. 49. 6 See ante, pp. 46, 55, " Ante, pp. 533 et seq. s See and consider the eighth reso- lution in Bowles" Case, L. C. Conv. 37. 9 See Attersoll v. Stevens, 1 Taunt. 183. 10 See ante, pp. 48, 51. SECT. 2.] ABSTRACTION — CIVIL REMEDIES. 539 with as part of the corpus of the estate. 1 And it seems, that during the possession of the tenant for life or years, the income will not be accumulated, but will be paid to him ; he not having done anything to disentitle himself to receive it. 2 With this exception, the principles, applicable to determine the mode of dealing with the amount recovered in respect of wrongful work- ings by a tenant for life or years, 3 seem equally to apply where the severance is the act of a stranger. 4 It has been said, that, where copyhold minerals are severed Copyholder, by a stranger, the damages recoverable against him should be divided in equal shares between the lord and the copyholder. 5 e. hi junction — Receiver and Manager. The injured party may also, in general, have an injunction Injunction, to restrain the future working or abstraction. Prior to the Judicature Act, 1873, very fine distinctions were, in cases of trespass, drawn between the right to restrain a person who was in possession, and a person who was not in possession ; and between the right to restrain a person not in possession who was a mere trespasser, and a person not in possession who acted under a colour of right. 6 But there was usually 7 no difficulty 1 See and consider Bewick v. Whit- 116. field. 3 P. "Wins. 267; Lnshington v. '• It was refused in Haigh v. Jaggar, Boldero, 15 Beav. 1 ; Honywood v. u. s. But there the defendants had Honywood, 18 Eq. 306. been working for a considerable time 2 See and consider Lushington v. before the application was made : Boldero, U.S., 7; Bagot v. Bagot, 32 there was a question of title involved - Beav. 509, 519. The only reason in which the plaintiffs were proceeding this and similar cases for refusing to simultaneously to determine at law allow the tenant for life or years to (see Haigh v. Jaggar, KJ M. & W. 525 ; receive the income is that he is a 3 Exch. 51 ; ante, p. 250) ; and it was wrongdoer. See also Lee v. Alston, 1 not suggested that the defendants were B. C. C. 193 ; 3 ib. 37 ; Bell v. Wilson, working unskilfully, or that they were 1 Ch. 309. insolvent. It was also refused by Lord 3 Ante, pp. 58, 59, 60. Thurlow : see the case mentioned in 4 Consider Gresley v. Mousley, 3 De Crockford v. Alexander, 15 V, s. G. F. & J. 133, 115, 116 ; and see 138. But afterwards he changed his Garth v. Cotton, 1 L. C. 781, 782. opinion, and granted it : see the state- 5 A.-G. v. Tomline, 15 Ch. D. 152, ments in Mitchell*. Dors, 6 Yes. 117 ; per Fry, J. Smith v. Collyer, 8 ib. 90 ; Thomas v. o See Haigh v. Jaggar, 2 Coll. 231, Oakley, IS ib. 186 ; Lowndes v. Bettle, 235 ; Lowndes v. Bettle, 33 L. J. Ch. n. s., 151 ; and see Flamang's Case, 7 151 ; Stanford v. Hurlstone, 9 Ch. Yes. 308. 540 STRANGERS — WRONGFUL [CHAP. XXII. in obtaining an injunction, where mines were being wrongfully worked, or minerals wrongfully abstracted ; l the consequences of refusing it being usually irreparable, 2 and mining operations being considered a species of trade. 3 And that Act expressly provides, that an injunction may be obtained, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise ; or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title ; and whether the estates claimed by both or by either of the parties are legal or equitable. 1 And it is not necessary for a plaintiff to wait until a trespass is actually committed. He may obtain an injunction upon a threat to commit it. 5 Receiver and It may be proper, in a case of disputed title, instead of granting an injunction, to appoint a receiver and manager. manager. /. Inspection. inspection of a litigant, who has a pri/md facie case, may usually obtain, usually be had. on interlocutory application, an order, giving himself and his agents liberty at all reasonable times to inspect his neigh- bour's property, for the purpose of ascertaining whether his own mine has been encroached upon. And, as ancillary thereto, he may, in proper cases, obtain liberty to measure and 1 Mitchell v. Dors, 6 Yes. 147 ; Fla- 2 See Flamang's Case, u. s. ; Cowper mang's Case, 7 ib. 308 ; Smith v. v. Blake, u. s. ; Thomas v. Oakley, v. x. Collyer, 8 ib. 1)0 ; Grey v. North- 3 See Jcfferys v. Smith, u. s. : see umberland, 17 ib. 282 ; Norway v. also ante. p. 57. n. 2 , and other cases Rowe, 19 ib. 147 ; Field v. Beau- there cited ; and see Phillips v. Hom- mont. 1 Swanst. 208; Jefferys v. fray, 52 L. J. Ch. 405. Smith, 1 J. & W. 302 ; Parrott r. l S. 25, sub-s. 8. Palmer, 3 M. & K. 632 ; Thomas v. 5 See Gibson v. Smith, 2 Atk. 182 ; Jones. 1 Y. & C. C. C. 510, 526 ; Powell Wilson v. Grey. 3 Eq. 121. See Judi- d. Aiken. 4 K. & J. 343 ; Hunt v. Peakc, cature Act, 1873, s. 25, sub-s. 8. For Joh. 705 ; Wilson v. Grey. 3 Eq. 121 ; the form of the injunction, see Lons- Hiltou v. Woods. 4 Eq. 432 ; Wright v. dale v. Curwen, 3 Bligh. 16S n., 170 n.; Pitt, 12 Eq 417; Phillips v. Horn- Walker v. Fletcher, ib. 172 n. ; Baynton fray, 6 Ch. 776; Ashton v. Stock. 6 v. Leonard, Set. 203 ; Powell v. Aiken, Ch. D. 719, 725; cases of mines : Cow- 4 K. & J. 360; Mansel v. Evans, per v. Blake, 17 Ves. 128; Thomas v. Pemb. (1st edit.) 263; Bell r. Joell, Oakley, 18 ib. 184 ; Ackroyd v. Briggs, Set. 203 ; Craven v. Kaye, Set. 205. 13 L. T. N. S. 521 ; cases of quarries, 6 See Haigh v. Jaggar, 2 Coll. 231, or stones. 238, 239. SECT. 2.] ABSTRACTION CIVIL REMEDIES. .',11 dial ; and to make sections, plans, and surveys ; and to use the neighbour's shafts and machinery ; and to remove obstructions to the inspection. And the neighbour will be ordered to give all reasonable facilities in the way of ventilation and otherwise for effectuating those objects. Prior to the Judicature Acts, Courts of equity, by virtue of their original jurisdiction ; l and Courts of law, under sect. 58 of the Com. Law Proc. Act, 1854 ; 3 were in the habit of making orders for those purposes. Under the early Judicature rules similar orders were made. 3 And similar orders may be made under the Rules of the Supreme Court, 1883. 4 Time will usually, if asked for, be given to answer the evidence of the applicant. 5 But a mere denial of the encroachment, without actual disproof, is usually imma- terial ; the right in question not depending on the balance of testimony, but on the circumstance that by its exercise the fact of the encroachment will be best ascertained. The applicant will, however, usually have to submit to the But term-, will • tt •« n i. usually be following, or most of the following, terms : — He will usually be im p 0SC (i. obliged to give a reasonable notice in writing, stating the time at which he proposes that the inspection shall take place, and the names and descriptions of the persons whom he proposes as his agents for that purpose. He will not be allowed to appoint agents to whom his neighbour may reasonably object. He will not be allowed to inspect except for the purpose of ascertaining the fact of the encroachment. His neighbour will usually be allowed to attend the inspection. The obstructions which he i See Kynaston v. East Ind. Co., 3 Hall Co., W. N., 1876, p. 24. Swanst. 24S, 262 : East Ind. Co. v. 4 0. 50, r. 3. Kynaston. 3 Bl. 153 ; Lonsdale v. Cur- s See Whaley v. Braucker, v. s. wen. ib. 168 n., 171 n. ; Set. 204 ; 6 See Bennitt v. Whitehouse, 28 Walker r. Fletcher, 3 Bl. 172 n.; Lewis Beav. 119, 122, 123; Cooper v. Ince r. Marsh. 8 Ha. 97 ; A.-G. v. Chambers, Hall Co.. W. X.. 1876, p. 24. 12 Beav. 150; Set, 204; Bennitt v. however. Whaley r. Braucker, 10 Jur. Whitehouse, 28 Beav. 119, 122. 123; N.S.535,536; where V.-C. Kindersley Set. 203, 204 (and Adshead v. Xeedham, said he would not have made the there cited) ; Ennor v. Barwell, 1 De order, if a plan had been produced, G. F. & J. 529 ; Whaley c. Braucker, Bhowing the state of the mine ; and 10 Jur. N. S. 535 ; Phillips v. Homfray, the neighbour had acknowledged its 6 Ch 776. correctness, and submitted to an intcr- 2 17 & 18 Vict. c. 125. See Bennett locutory injunction against encroach- v. Griffiths, 3 E. & E. 467 ; Set. 204. ing. a O. 52, r. 3. See Cooper v. Ince 542 STRANGERS — WRONGFUL [chap. XXII. Inspection of title deeds. may remove will usually be confined to such matters as rubbish, framed dams and barriers, and recently erected walls ; and then only when the removal can take place without danger to life or health. And (irrespectively of considerations of life or health) he will not usually be allowed to break up his neighbour's soil He will not be allowed to do unnecessary damage to his neigh- bour's property or operations. He will usually have to make good all damage which his neighbour may sustain ; and he may be obliged to give security that he will do so. And he will usually have to bear all the costs of the inspection. 1 A litigant may also, in a proper case, obtain inspection of his neighbour's lease for the purpose of seeing from the parcels and plan where his boundaries are. 2 Release. Stat, of Limitations. g. Loss of Remedy. It need hardly be said, that a release in respect of the wrongful abstraction of minerals is no defence to proceedings for an act of wrongful abstraction, of which the plaintiff was ignorant when he executed the release. 3 If six years have elapsed since the wrongful abstraction was committed, and no steps have been taken in the meantime to obtain compensation, the injured party will, in general, be barred of his remedy by the Statute of Limitations. 4 And, 1 As to the removal of obstructions, see Walker v. Fletcher, 3 Bli. 178 n. ; Ennor v. Barwell, 1 De G. F. k J. 530, 531, 532 (varying - on appeal an order of V.-C. Stuart) ; Bennett v. Griffiths. 3 E. & E. 467, 470 : as to giving secu- rity, see Bennett r. Griffiths,?;. .?. : and, as to costs, see Mitchell v. Darley, $c, Co., 10 Q. B. D. 457 ; (which, for the purposes of appeal, are in the discretion of the Court, ib.~). And, generally, as to the propositions in the text, and for forms of orders to inspect land, see the same cases ; and also Lonsdale v. Curwen, 3 Bli. 168 n., 171 n. ; Set. 204 ; Lewis r. Marsh, 8 Ha. 100 : Set. 204 ; A.-G. v. Chambers, 12 Beav. 160 ; Set. 204 ; Baynton v. Leonard, Set. 203 ; Bennitt D.Whitehouse, 28 Beav. 122.123 ; Set. 203. 204 ; Hilton r. Woods. Set. 206 ; Mansel r. Evans, Pemb. (1st edit.) 263 ; Cooper v. Ince Hall Co., W. N., 1876, p. 24 ; Wall v. Dunn, Set, 202. And for the form of an interlocutory order obliging the defendant to keep an account of the workings ; and, in the event of the plaintiff succeeding, to furnish particulars of the royalty rendered to the lessor ; and for liberty for the plaintiff, in the like event, to verify the accounts by inspection of the defendant's books ; see Oakley v. Glan-y-Pwll Co.. Set. (3rd edit.) 903. - Wayne's, &c, Co. v. Powell's, &c, Co., W. N., 1880. pp. 141, 159. 3 Eccl. Comms. v. N. E. R. Co., 4 Ch. D. 845. 4 Denys v. Shuckburgh. 4 Y. & C. Eq. Ex. 42 ; Hunter v. Gibbons, 1 H. & N. 459 ; Hood v. Easton, 2 Jur. N. S. 917 ; Dawes v. Bagnall. 23 W. SECT. 2.] ABSTRACTION — CIVIL REMEDIES. 543 although the Statute was enacted with reference to actions of trespass, strictly so called, it equally applies to proceedings in a Court of conscience in respect of a trespass. 1 In like manner, in the case of a continuing trespass, an account cannot, in general, be carried back further than six years. 2 And the right to plead the Statute is probably not affected by the circum- stance, that the wrongdoer acted under the authority of a person who could not himself have pleaded it ; as, for instance, a mortgagee. 3 With respect, however, to a continuing trespass, it has been decided, that, where the amount wrongfully abstracted has been proved, the onus lies on the wrongdoer to show what part of it was not taken within the six years. 4 And an account will be carried back further than six years, if the injured party can show, that the abstraction was intentional ; and that steps were taken to conceal either the fact of the abstraction, 5 or its extent. 6 And even if the injured party can show, that he could not have discovered the wrongful act earlier than a particular period, the Statute of Limitations will only begin to run from the date of such period ; 7 unless it appears, that he neglected to use reasonable diligence. 8 For an abstraction of minerals differs from a mere ordinary trespass of goods. The injured party may frequently be ignorant, and nothing may happen to excite his suspicion, that his minerals are being abstracted. 9 R. 690 ; Eccl. Corns, v. N. E. R. Co., v. s., 623 ; Hunter v. Gibbons, 1 II. & i Ch. D. 845,857, 858. The statute in N. 459 ; Dawes v. Bagnall, 23 W. R. question is 21 Jac. 1, c. 16, s. 3. 690 ; Trotter v. Maclean, u. s., 584. 1 See Trotter v. Maclean. 13 Ch. Sec also Gibbs r. Guild. 8 Q. B. D. D. 574, 584 ; Gibbs v. Guild, 9 Q. B. 296 ; 9 ib. 59. jy (57 > 6 See Trotter v. Maclean, v. •?.. 585. • Dean v. Thwaite, 21 Beav. 621 ; In Dawes v. Bagnall, u. *., an omission Ashton v. Stock, 6 Ch. D. 719, 726; by the defendants to mark the illegal Trotter v. Maclean, it, s. See also workings in plans, which they kept of Thomas v. Athcrtou, 10 Ch. D. 202. the workings in their own mine, was 3 See Hood v. Easton. u. s. ; where. considered insufficient to constitute a on appeal, the L.JJ. apparently dis- case of concealed fraud, approved the decision on this point of 7 See Eccl. Comms. v. N. E. R. Co., V.-C. Stuart, as reported, 2 Giff. 692. 4 Ch. D. S45,S58 et seq. ; audef. Gibbs See, as to a mortgagee, ante, p. 85. v. Guild, u. s. * Dean v. Thwaite, 21 Beav. 621 ; 8 Denys v. Shuckburgh. m. *., 42 ; Trotter v. Maclean, 13 Ch. D. 574, Dean v. Thwaite. u. s. 623 ; Eccl. 585 _ Comms. v. N. E. R. Co., u. .?., 861, 862. ° See Denys v. Shuckburgh, 4 Y. & 9 See Dean r. Thwaite, n. s.. 622 ; C. Eq. Ex. 53 ; Dean v. Thwaite. Trotter r. Maclean, v. s., 581. 544 STRANGERS— WRONGFUL [chap. XXII. Delay. Death of wrongdoer- wrongful abstraction Running of Where the wrongdoer has demised the mines in question, statute, where i i i i r c i wrongdoer aiK1 nas reserved rents by means of payment of produce m demises mine, specie, the profits will be considered as accruing at the time of reserving L L rents in kind, receiving the produce, and not at the time of its sale ; and the Statute will, therefore, run from the time of the receipt. 1 Mere delay may induce the Court to withhold an interlocutory injunction to restrain the alleged wrongful working of a mine ; es])ecially after expenditure has been incurred ; regard being had to the serious injury which might otherwise be caused. 3 The death of the wrongdoer will not deprive the injured party of the right to recover from his estate the value of all minerals which he may have wrongfully abstracted. For a wrongful abstraction of minerals is not a mere personal tort. It is an act from which the estate of the wrongdoer derives a profit. And proceedings in the nature of an action for money had and received, or proceedings for an account, have always, Personal tort, therefore, been maintainable in respect of it. 3 However, where the act of the wrongdoer is a mere personal tort, the maxim, actio personalis moritur cum persona, will apply ; and his death may be a bar to the remedy. Thus, in Phillips v. Homfray, 4, an inquiry was directed, whether a farm and under- lying mineral property belonging to the plaintiffs had sustained any, and what, damage by reason of the manner in which the defendants had abstracted the plaintiffs' minerals. 5 While the inquiry was being proceeded with, one of the defendants died. It was held, that, as against the estate of that defendant, the inquiry should be stayed. 6 Where, however, the abstraction has taken place within six months before the death, an action may, notwithstanding the maxim, be maintained under the Act 3 & 4 Will. 4, c. 42. But it must be brought within six months 1 Denys v. Shuckburgh, 4 T. k, C. Eq. Ex. 42. - Field v. Beaumont. 1 Swanst. 208. See also ante, p. fi2. n. 1 , and. other cases there cited. 3 See Winchester v. Knight, 1 P. Wms. 407 ; Thomas v. Oakley, 18 Ves. 186 ; Powell v. Rees, 7 A. & E. 426 ; Powell r. Aiken, 4 K. & J. 352 ; Phillips v. Homfray, 6 Cli. 770; and the observations on the first inquiry in Phillips v. Homfray of Pearson, J., in S. C, 52 L. J. Ch. 403, 404. 4 6 Ch. 770. 5 As to the right to recover for this consequential damage, see ante, p. 537. 6 See 52 L. J. Ch. 401 : affirmed W. N., 1883, p. 132. SECT. 3.] ABSTRACTION — CRIMINAL REMEDIES. after the executors or administrators undertake the adminis- tration. 1 Sect. 3.— WRONGFUL ABSTRACTION— CRIMINAL REMEDIES. Whosoever shall steal, or sever with intent to steal, the Statutory „ , ,..,.. provisions, ore 01 any metal, or any lapis calaminaris, manganese, or mundick, or any wad, black cawke, or black lead, or any coal or cannel coal from any mine, bed, or vein thereof respectively, shall be guilty of felony ; and, being convicted thereof, shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. 2 And whosoever, being employed in or about any mine, shall take, remove, or conceal any ore of any metal, or any lapis calaminaris, manganese, mundick, or other mineral found or being in such mine, with intent to defraud any proprietor of or adventurer in such mine, or any workman or miner employed therein, shall be guilty of felony ; and, being convicted thereof, shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. 3 An indictment, that the defendants being persons employed Decisions in a mine, in the parish of, &c, in the county of Cornwall, did steal ore, the property of the adventurers in the said mine, then and there being found, does not sufficiently show that the ore was stolen from the mine. 4 Where a prisoner was indicted 1 Sees. 2. See, accordingly, Powell wages; the ore still remaining in the i>. Rees 7 A. & E. 426. possession of the owners; were nol 2 24 & 25 Vict. c. !)('>, b. 38. guilty of larceny : R. v. Webb, 1 .M. 3 S. 3!). This section is of general C. C. 431. Under the Act 39 & 40 application. ! i provision, such mine, or to hinder or delay the working thereof, unlaw- fully and maliciously pull down, fill up or obstruct, or damage with intent to destroy, obstruct, or render useless, any airway, waterway, drain, pit, level or shaft of or belonging to any mine, shall be guilty of felony ; and shall be liable, on conviction, to the same punishment as that provided for the drowning of a mine. 3 But this provision does not extend to any damage committed underground by any owner of any adjoining mine in working it, or by any person duly employed in such working. 1 ' Where one of two owners of adjoining mines, asserting that a Decisions . thereon. certain airway belonged to him, directed his workmen to stop it up ; and the workmen, acting bond fide, did so ; they were acquitted, although their master knew that he had no right to the airway. But they would have been guilty, if they had > 24 & 25 Vict. c. 97, s. 26 ; 27 & 28 3 24 k 25 Viet. c. 97, s. 28 ; 27 & 28 Vict, c. 47, s. 2. Vict. c. 47, s. 2 : ante. p. 546. - 24 'k 25 Vict. c. 97, s. 27 ; 27 k * 24 & 25 Vict. c. 97, s. 28. 28 Vict. c. 47. s. 2. 548 MALICIOUS INJURIES. [chap. xxir. known that the stopping up was a malicious act of their master. 1 The provision in question is intended to render a person criminally liable who acts with a wicked mind. It is not intended to ajDply to the bond fide exercise of a supposed right." Generally- statutory provision. (8) Injuries to Machinery and Effects. Whosoever shall unlawfully and maliciously pull down or destroy, or damage with intent to destroy or render useless, any steam-engine or other engine for sinking, draining, ventilating or working, or for in anywise assisting in sinking, draining, ventilating or working, any mine, or any appliance or appa- ratus in connexion with any such steam or other engine or any staith, building, or erection used in conducting the business of any mine, or any bridge, waggon-way or trunk, for conveying minerals from any mine, whether such engine, staith, building, erection, bridge, waggon-way or trunk be completed or in an unfinished state ; or shall unlawfully and maliciously stop, obstruct, or hinder the working of any such steam or other engine, or of any such appliance or apparatus as aforesaid, with intent thereby to destroy or damage any mine, or to hinder, obstruct, or delay the working thereof; or shall unlawfully and maliciously wholly or partially cut through, sever, break or unfasten, or damage with intent to destroy or render useless, any rope, chain or tackle, of whatsoever material the same shall be made, used in any mine, or in or upon any inclined plane, railway or other way, or other work whatsoever in anywise belonging or appertaining to, or connected with, or employed in any mine, or the working or business thereof; shall be guilty of felony ; and, being convicted thereof, shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven, and not less than five, years ; or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, 1 R. v. James. 8 C. & P. 131. See James v. Phelps. 3 Per. & I). 231. 2 E. v. Matthias anil Twigg, 11 Cox C. C. 5. SECT. 4.] MALICIOUS INJURIES. 549 and, if a male under the age of sixteen years, with or without whipping. 1 Where a steam-engine used in working a mine had been Decisions stopped, and locked up for the night; and the prisoner got into the engine-house and set it going ; and the engine received an injury ; it was held, that this was a damaging of the engine. 2 A scaffold erected at some distance aoove the bottom of a mine, for the purpose of working a vein of coal on a level with the scaffold, is an 'erection used in conducting the business' of a mine. 3 And where mine owners constructed a wooden trough, by means of which water Avas conveyed from a spring to a pool half a mile distant from their mine, being as near as the nature of the ground admitted ; and the water so brought was used for the purpose of washing the ore obtained from the mine ; it was held, that the trough was an ' erection.' '" If any persons, riotously and tumultuously assembled together Riotevj— to the disturbance of the public peace, shall unlawfully and with provisions, force demolish, or pull down or destroy, or begin to demolish, pull down or destroy, any steam-engine or other engine for sinking, working, ventilating, or draining any mine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, waggon-way, or trunk, for conveying minerals from any mine, every such offender shall be guilty of felony ; and, being convicted thereof, shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than five years ; or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, 5 And if any persons, riotously and tumultuously assembled together to the dis- turbance of the public peace, shall unlawfully and with force injure or damage any such engine, staith, bridge, waggon-way, 1 24 ,v 25 Vict. c. 97, s. 2 ( .) ; 27 & 2S charging the damaging of the steam- Vict. c. 47, s. 2. Previously to 24 & 25 engine: Bee R. v. Whittroghanij 9 C. Vict. c. '.»7. it was held, that, where a & I'. 234. mine was worked by a steam engine, - J!. V. \<>nis. '.» C. & P. 241. which caused a cylinder to revolve. :i 1!. v. Whittingham, ib. 2:; I. and take up the rope as the coal ' Harwell v. Winterstoke, 14 Q. Ik was drawn up ; and the cylinder was 701. damaged ; proof of such damage b 24 & 25 Viet. c. 97. s. 11 ; 27&2> would not support an indictment Vict. c. 47, s. 2. 550 MALICIOUS INJURIES. [cHAI\ XXII. or trunk, every such offender shall be guilty of a misdemeanour ; and, being convicted thereof, shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years, and not less than five years ; or to be imprisoned for any term not exceeding two years, with or without hard labour. And if, upon the trial of any person for any felony under the first of these provisions, the jury shall not be satisfied that such person is guilty thereof, but shall be satisfied that he is guilty of any offence under the second of these provisions, then the jury may find him guilty thereof; and he may be punished accordingly. 1 1 24 & 25 Vict. c. '.'7. s. 1-' ; -'7 & above-stated provisions is committed. 28 Vict. c. 47, s. 2. Sec, as to Scot- are liable to yield full compensation land, 9 Geo. 3, c. 29; 56 Geo. 3, c. to the person damnified for the damage 125 ; Ireland, 5 & 6 Vict, c. 28. s. 5. done ; including any damage at the Under the Act 7 & 8 Geo. 4. c. 31. the same time done to any fixture, furni- inhabitants of the hundred, wapen- ture or goods in the building or crec- take. ward, or other district in the tion in question (s. 2). See, as to nature of a hundred, in which any procedure, ss. 3 et seq. offence mentioned in the first of the CHAPTER XXIII. TAXES, DUTIES, RATES AND TITHES— PAUPER SETTLEMENTS. Sect. 1.— LAND TAX. All quarries, mines of coal, tin, lead, copper, mundic, iron Land Tax. and other mines, iron mills, furnaces, and other iron works, salt works, and alum mines and works, are, under the Act 38 Geo. 3, c. 5, subject to Land Tax. 1 And, although in strictness mines or quarries cannot, it would seem, be properly so called until they are opened, 3 the Act probably applies to them, although they may not have been opened when it was passed. They are nothing more than land and the potential profit of land in existence at the time the Act was passed. 3 Sect. 2.— INCOME TAX. a. Property Liable — Chargeable Value. Independently of sect. 8 of the Act, 29 & 30 Vict. c. 30, 5 & 6 Vict . c. 35, Sch. A. mines and quarries are assessable to the Income Tax under Schedule A. of the Act, 5 & G Vict. c. 35. Under No. III. of that Schedule "quarries of stone, slate, limestone, and chalk,'' are assessable on the amount of profits in the preceding year. Under the same number "mines of coal, tin, lead, copper, mundic, iron, and other mines," are assessable on the full amount for one year, or on an average of the five preceding years. But, if any ' mine ' has, from some unavoidable cause, been decreased and is decreasing in annual value, so that the i see s. 4. L'xoh. 257, 258. Cf. R. v. Randall, 1 2 Seean'r, p. 2. L. & B. 561, 569. 3 See Colchester v. Kewnev, L. R. 2 552 INCOME TAX. [CHAP. XXIII. average of five years will not give a fair estimate of the annual value, the annual value may, under No. IV. of that Schedule, be computed on the actual amount of profits in the preceding- year, subject to the usual abatement on account of diminution of duty in the current year. And if any ' mine ' shall have wholly failed, the assessment may, under the same number, be wholly discharged. 1 Under No. III. of that Schedule, "iron works, salt works, and alum mines or works, water works, &c, railways, &c, and other concerns of the like nature from or arising out of any lands, tenements. &c," are assessable on the profits of the year preceding. And, generally, all lands, tene- ments, or hereditaments capable of actual occupation, and not coming within the foregoing specific principles, are, under No. I. of that Schedule, assessable according to their annual value. Slate mines— As the Act distinguishes between 'quarries of slate' and brickfields. . . e . 1 ' mines,' and applies to each a different principle of assessment, works for the getting of slate are assessable as ' quarries,' and not as 'mines;' although the slate be obtained by underground working. 2 Brick fields are either within the principle applicable to iron works, salt works, and alum works': or within the general principle. 3 20 & soviet. Sect, 8 of the Act, 29 & 30 Vict. e. 36, enacts that "the several and respective concerns described in No. III. of Schedule A. " of the Act, 5 & G Vict. c. 35, shall be assessed " in the manner in the said No. III. mentioned, according to the rules prescribed by Schedule D. of the said Act, so far as such rules are consistent with the said No. Ill ;" with a special proviso as to railways. And Schedule I)., which provides for the assessment in respect of any "trade, manufacture, adven- ture, or concern in the nature of trade not contained in any other Schedule," requires the assessment to be made on a sum not less than the full amount of the balance of the profits or gains " upon a fair and just average of three years." 1 -Fifth rule. No. III.,' mentioned ference between a mine and aquarry. in No. IV. r. .">.. i.s an obvious mistake see ante, pp. 3 et sea. for • second rule, No. III.' ■< Edmonds v. Eastwood, 2 H. & X. 2 Jones v. t'wmorthen Slate Co.. I 811. Exch. D. 97 ; o ih. 93. For the dif- SECT, 2.] INCOME TAX. 553 Sect. 8 of the Act, 29 & 30 Vict. c. 30, appears to have Effect of this abolished No. IV. of Schedule A. of the Act, 5 & 6 Vict. c. 35, pro and to have substituted the rules in Schedule D. 1 As to its effect in other respects there is considerable doubt. It was laid down in Knowles v. McAdam,- that it makes the three- year period applicable to such cases as that of a colliery com- pany, formed for the purpose of carrying on the business of working coal mines. And it was laid down in Byh ' * of a previous company, it has not, under the rules of Schedule D., "been set up and commenced" within that period; so as to entitle it to have the computation made on the average of the i See Ryhope, &c, Co. v. Foyer, 7 4 G App. ('as. 337,338,339,^' Lord Q. B. D. 500. per Lindley, J. ; Colt- Blackburn. ness. &c, Co! v. Black, 6 App. Cas. 5 See Coltness, &c, Co. >: Black, G XM.per Lord Blackburn. App. Cas. 338, per Lord Blackburn. - 3 Exrh. D. 23, per Kelly, C.B.. Cleasby, J'... in Knowles v. M'Adam and Cleasby and Pollock, BB. (3 Exch. D. SO) refused to admit this »7Q. B. D. 485. per Grove and consequence. Lindley. JJ. 554 INCOME tax. [chap. XXIII. balance from the date of the first " setting up." } Nor (inde- pendently of whether No. IV. of Schedule A. is not now abolished), 2 is such a company entitled, under that number, to have its profits estimated in proportion to the profits received since the com- mencement of its "possession or interest;" on the ground that, by reason of its possession or interest having commenced within the three-year period, it cannot make out the statutory account. 3 It has, on the contrary, under the rules of Schedule J)., " suc- ceeded to" the previous company; so as to retain the position which it would have held, if it had been identical therewith. 4 It may, however, under those rules, prove that its profits and gains have fallen short from some " specific cause ;" so as to entitle it to have the computation made " on the amount of the full value of the profits and gains received annually;" or, in other words, on the gains for the current year. And an extraordinary depression in the coal trade may not improperly be called a " specific cause." 5 Profits and The tax, as might be expected from its title, is essentially realised a tax u P on profits and gains. Where, for example, a principal property. j^ j s ma ^ e re p a y a ble by periodical instalments, none of the instalments are chargeable. (i And where the purchase-money of an estate is made payable by periodical instalments, although each instalment may in substance be partially compounded of interest, it is not within the purview of the Acts. 7 Consistently, however, with this, the tax is a tax upon property. It assumes the ownership of a mine or quarry ; disregards the amount it may have cost, either in the way of purchase or of rent ; pro- ceeds to describe the method of calculating its 'annual value;' and declares, that this shall be the average * profit received therefrom.' s A mine owner, as distinguished from a merchant or trader, is, in fact, in every case taxed in respect of his mine as a fixed and realized ' property,' which belongs to him, and from which he reaps an annual benefit. And the statutory 1 SeeRyhopc, &c. s Co. v. Foyer. 7 6 Foley v. Fletcher, 3 H. & X. 779 Q. B. D. 4S:,. 784. 2 See preceding page. 7 j/ K n ;r,;i 3 See Ryhope, &c. Co. o. Foyer, u. s. s Coltness Co. v. Black. G App. Cas. 4 Tb' 326, per Lord Penzance. 5 lb. SECT. 2.] INCOME TAX. 5 words, 'annual value,' or 'profit received,' are used not as the subject of taxation ; but only as the measure of the taxation to which the ' property ' is subject. 1 It follows that deductions are not allowable in respect of Allowances, capital, merely bcause it is exhausted or consumed in making the profit. 3 They are not, for example, necessarily allowable for amounts expended in sinking a pit ; which may constitute a permanent addition to caj)ital. 3 Nor, for similar reasons, are they allowable for the year's depreciation of all the pits in a mine, whenever sunk. 1 Nor are deductions allowable in respect of capital, which is withdrawn, 5 or which suffers diminution. However it may be, that in some cases a mine owner is entitled to an allowance in respect of the cost of sinking a pit, if that pit b^ exhausted by the workings of the year in which it is sunk. 7 And deductions are always allowable for depreciation of machinery or plant. 8 b. Person Liable. In the cases subject to the specific principles prescribed Generally. by the Act, 5 & (J Vict. c. 35, 9 the duty is, under No. III. of Schedule A., chargeable on the person, corporation, company or society, carrying on the concern ; or on their agents, treasurers, or other officers ; on the amount of the produce or value ; and before paying, rendering, or distributing the same either between the different persons or members, or to the owner of the soil or property, or to any creditor or other claimant. And all such persons, companies, or societies are bound to allow out of such produce or value a proportionate deduction of the duty. And, in respect of any mine carried on by a company of adventurers, the duty is, under the same number, chargeable on the com- 1 Hi. p. 327. ^'7- Lord Penzance. '• See Coltness Co. v. Black, 6 App. 2 Acldie v. Inland Revenue, cited in Cas. 321, prv Lord Cairns; 339, per Forder v. Handyside, 1 Exch. D. 233 ; Lord Blackburn : see, however, \>. Coltness Co. v. Black, (i App. Cas. ill."). 326, per Lord Penzance. The latter case overruled Knowles v. s See 11 & 12 Viet. c. 15, s. 12. Si e, M'Adam, 3 Exch. D. 23. before the Act, Addle v. Inland 3 Addie v. Inland Revenue, v. s. Revenue. >'. ••>•. : Forder v. Handyside, 4 Coltness Co. v. Black, %. s. v. s. Cf.. as to allowances in the case 5 See Sch. D. of 5 & 6 Vict. c. 35. of rating, post, pp. 5(52, 563. 6 5 & 6 Vict. c. 35, s. 159. 9 See ante, pp. 551. 552. 556 INCOME TAX. [chap. XXIII. pany jointly. But any adventurer may claim to be charged separately; in order to setoff his loss in one concern against his profits in another. Retainer. Every person, who is liable to the payment of any rent, or any yearly interest of money, or any annuity or other annual payment ; whether payable half yearly, or at shorter or more distant periods ; may, on making the payment, deduct and retain the amount of the duty according to the rate. 1 Accord- ingly, where, on the lease of a brick field, there was a reserva- tion for "royalty or brick rent the yearly sum of £100," and for every thousand bricks to be made in any year over and above the first million " an additional royalty or brick rent of 2s.," it was held that the lessee was entitled to deduct and retain thereout the amount of the duty.- Of course, however, the person claiming the right to deduct must show in the first instance a liability to the charge. Where, tor instance, on the lease or sale of a mine, the consideration is a fixed sum pay- able by periodical instalments, as none of the instalments are in fact chargeable,' they arc not sums out of which the duty may be deducted. 1 c. 1'liKw of Liability. riaee of Under No. IV. of Schedule A. of the Act, o & 6 Vict. c. 35, " mines of coal, tin, lead, copper, mundic, iron, and other mines," arc chargeable in the place where they are situate, or where their produce is manufactured. : lii ;v K - ; Ante, p. 554. Vict. c. 34. S. 40; Scb. D. ' Taylor v. Evan-. 1 II. ,v N. 101 : - Edmonds v. Eastwood, '2 II. & X. Foley v. Fletcher. :> ih. 7r>'.>. 811. '' 23 A: 24 Vict. o. 14, B. 7. SECT. 3.] SUCCESSION DUTY, 557 Sect. 3.— SUCCESSION DUTY. For the purposes of the Succ. Duty Act the yearly value of Open mines, an opened 1 mine is ascertainable upon the average profits or income, after deducting all necessary outgoings, during such a number of preceding years as may be agreed upon between the Commissioners and the successor. And if no agreement is come to, the principal value must be ascertained ; and the annual value is then considered to be equal to interest at £3 per cent. per annum on the amount of such principal.- It is probable that unopened 1 mines have an annual value New mim within the meaning of the Act. Although they neither yield, nor are capable in their existing state of yielding, any annua] income, yet they are saleable, and would fetch considerable sums in the market. 3 However, property, which is increased in value by the discovery of minerals therein, the previous existence of which was unknown, is not within the contemplation of the Act. 1 Sect. 4.— RATES. a. Property Liable. Mines and quarries of every description are rateable to Mines and ... .. quarries, the relief of the poor; and are also liable to all county 1 As to open and new mines, see ante, pp. 22 rt xcq. - 16 & 17 Vict. c. 51, s. 2(5. 3 See A.-G. v. Sefton, 11 H. L. C. 257, 268, per Lord Westbury. 'Un- opened mines ' at p. 268 is no doubt a misprint for ' opened mines.' Lord Chelmsford seems to have inclined to the same view (seep. 279). But Lord Wensleydale refused to express an opinion upon the point (see p. 273). See the question asked by Lord VVens- leydale at p. 263. The House of Lords affirmed A.-G. v. Sefton, 2 H. & C. 362 ; in which the majority of the Court were of opinion, that unopened mines were not within the Act. * See A.-G. v. Sefton, 11 II. L. C. 271, per Lord Wensleydale. See the question asked by Lord Westbnry at p. 262. 5 43 Eliz. c. 2 ; Hal. Act, 1874 (37 & 38 Vict. c. 54), s. 3. Prior to the latter Act the law as to tin' rate- ability of mines and quarries to the poor was in a very anomalous state. By 43 Eli/., c. 2. it was enacted <^s. ! ) that the churchwardens and overseers of every parish should raise by taxa- tion of every ' occupier of lands. houses, tithes, coal mines, or saleable underwoods,* a sufficient sum of money for the relief of the poor according to the ability of the palish. Limeworks (Atkins V. Davis, Cald. 33S ; 1;. r. Alberbury. 1 East, 534); brickworks (R. v. Westbrook, B. c. Everist. 10 Q. B. 178) ; slateworks (B. v. Woodland. 558 RATES. [chap. XXIII. rates, 1 borough rates, 2 highway rates, 3 and other local rates 2 East, 164) ; clay pits (R. v. Brown. 8 East, 528) ; and gravel, sand, or marl pits (R. v. Woodland, 2 East, 167) ; which were really such, and were not mines in the proper sense of that word (ante, pp. 3 et seq.~) ; were treated as 'lands ' within the meaning of the Act ; and were therefore rate- able. Coal mines having been ex- pressly mentioned in the Act were, of course, also rateable. But, having been alone mentioned, a long course of decision had established, that lead mines (Lead Co. v. Richardson, 3 Burr. 1341 ; Rowls r. Gells, 2 Cowp. 453); ironstone mines (R. v. Cunning- ham, 5 East, 478 ; R. v. Bilston, 5 B. & C. 851 ; Crawshay v. Morgan, L. R. t. Q. B. 581 ; affirmed Morgan v. Crawshay, L. R. 5 H. L. 304 ; Guest v. East Dean, L. R. 7 Q. B. 334 ; Kittow v. Liskeard, in ih. 15) ; limestone mines (1!. r. Sedgley, 2 B. & Ad. 65) ; freestone mines (R. v. Dunsford. 2 A. & E. 568 : R. r. Randall, 4 E. & B. 564) ; clay mines (R, v. Brettel, 3 B. & Ad. 424) : salt mines (R. v. Sedgley, 2 B. & Ad. 74) ; and all other mines than coal mines (R. v. Baptist Mill Co., 1 M. & S. 618 ; Crease v. Sawle, 2 Q. B. 886 : Kittow v. Liskeard, -u. s. 12) ; were exempt from the liability. It had also, by a very peculiar doctrine (jur Blackburn, J., in Roads v. Trumping- ton, L. R. 6 Q. B. 64), been established, that, where mines other than coal mines were in lease or occupation ; and the lessor, or person receiving, received a money rent (R. v. Rochester. 12 East, 353 ; R. r. Baptist Mill Co., u. s., 619 ; R. v. Welbank, 4 M. & S. 222 : R, v. Tremayne, 4 B. & Ad. 162 ; R. r. Crease, 11 A. & E. 577) : or a propor- tionate part of the produce of the mines in an altered state (R. v. Pom- fret, 5 M. & S. 139) ; he was not liable to be rated : but that, where he received a proportionate part of the produce in its natural and primitive state; as under the custom of tin- bounding in Cornwall (R. v. St. Ague*. 3 T. R. 480 ; R. v. Crease, 11 A. & E. 677 ; Crease v. Sawle, 2 Q. B. 862, 886 ; ante, pp. 430, 431) ; or under the custom of Derbyshire (Rowls v. GeUs, 2 Cowp. 451 ; ante. -p. 511); or under express stipulation (R. v. Baptist Mill Co., 1 M. & S. 612 ; R. v. St. Austell. 5 B. & Al. 693 ; R. v. Todd. 12 A. & E. 816) ; he was so liable. And it had been further established, that the occupiers of surface land, with build- ings and machinery thereon ; or of a watercourse ; used in connection with a mine not itself rateable under the Act of Eliz. ; were rateable in respect of such surf ace buildings and machinery (Guest r. East Dean, L. R. 7 Q. B. 334 ; Kittow v. Liskeard, 10 ib. 7); or of such watercourse (Talargoch Co. v. St. Asaph, L. R. 3 Q. B. 478) : overruling R. r. Bilston, 5 B. &C. 851 ; according to which the subsidiary property was to be regarded as part of the mine itself, and as not therefore rateable. The Rat. Act, 1*71 (s. 3) extended the liability to mines of every kind not mentioned in the Act of Eliz. 1 Under the consolidating Act, 15 & 16 Vict. c. 81, all hereditaments then rateable to the relief of the poor were made rateable to the county rates : and by the Rat. Act, 1874 (ss. 10, 15), all hereditaments thereby made rateable to the relief of the poor (see supra) were made rateable to the county ratc<. 2 See 5 k. 6 Will. 4, c. 76, s. 92 ; Rat. Act. 1874, ss. 10, 15. 3 The Act 5 & 6 Will. 4, c. 50. s. 27. made rateable for highway purposes ••all property now liable to be rated and assessed to the relief of the poor, provided that the same rate shall also extend to such woods, mines, and quarries of stone or other heredita- ments, as have heretofore been usually rated to the highways.'* The liability under this Act to highway rates was, accordingly, capable of a greater SECT. 1.] RATES. 559 leviable upon property rateable to the relief of the poor. 1 And the rateability extends to surface lands, roads, and Subsidiary water-courses; and to shafts, buildings, and machinery; used in connexion with a mine or quarry." And it also extends to land, buildings, and machinery ; and to roads ; of which a person working a mine or quarry is in exclusive occupation ; although he be only working undef|a license. 3 Mines or quarries, if they are actually being worked, are Rateability . ., , ™ depends on rateable, although they may be unprofitable. 4 lhey are not, working, however, rateable before they are worked, and become pro- JJ^* rofi ductive ; 5 or after they have ceased to be productive. And, although the occupiers of mines or quarries, which have ceased to be productive, are rateable in respect of surface lands occupied therewith ; they are not rateable in respect of build- ings, boilers, engines, plant, or railways so occupied; if tin e things are in substance only part thereof, and are not shown to have any independent value. 7 b. Chargeable Value. (a) Hypothetical Rent— Double Eating. Mines or quarries, other than tin mines, lead mines, or copper Hypothetical £ , l • l rent— Mines mines, are rateable upon an estimate ot the rent, at wnicn (liut being tin, lead, i i copper) and extension than the liability to poor ing,' 3 & i Will. 4. c. 90, b. 9; Pub. quarries. rates; which, so far as related to Hea. Act, 1875, s. 163; 'general mines, was confined to coal mines district rate/ Pub. Hea. Act, L875, (ante, p. 558, n.). And it was de- s. 211. See also Rat. Act, L874, ss. cided, that this liability was not 10, 15. limited to the identical mines actually 3 Sec ante, p. 558, n. See also rated before the passing of the Act ; It. v. Granville, 9 B. & 0. L88 : Tyne but that it applied to mines of the Co. v. Wallsend, 46 L. J. M. C. L8o. same description as those previously ;! Roads v. Trumpington, L. R. 6 Q. usually rated in the parish in question, B. 56; Kittow v. Liskeard, 10 lb. ,. although opened and worked for the A mere licensee, as such, is not rate- first time subsequently to the passing able : sec post, p. 563. of the Act. See R. v. Randall, 4 E. & ' R. v. Parrot, 5 T. 1!. 593, 596 : R. B. 564, a case of a stone mine. By r. Bedworth, 8 Last, 3S, ; R. r. St. the Rat Act. 1874, all hereditaments Austell, 5 B. .V; Al. 699. thereby made rateable to the relief of 5 R. v. Rochester, 12 East, 358 ; R. the poor were made rateable to the v. Fayle, 27 L. T. 65. highway rates: ss. 10, 15. See also < ; R. r. Bedworth, u. s. ; R. r. West- Pub. Hea. Act, 1875, ss. 144, 216. brook, 10 Q. B. 202. » See, as to 'lighting ' and ' watch- " Tyne Co. v. Wallsend. k. s. 500 RATES. [(HAP. XXIII. Tin, lead, or copper mines — statutory meanings of ' mine,' ' dues,' ' lease,' and 'fine.' Statutory meanings of 'gross value,' and ' rate- able annual value.' the same might reasonably be expected to let from year to year ; free of all usual tenants' rates, and taxes, and tithe commuta- tion rent-charge (if any) ; and deducting therefrom the prob- able average annual cost of the repairs, insurance, and other expenses, if any, necessary to maintain them in a state to command such rent." 1 Where such mines or quarries are in the occupation of a lessee ; although the sums, which he pays, whether by way of rent strictly so called, or by way of royalty, or by way of rent and royalty, do not necessarily form the basis of the rate in the sense of determining its amount ; they are all within the statutory meaning of 'rent.'- In the Rat, Act, 1874, the following words, when applied to a tin, lead, or copper mine, have or include the following- meanings :— The word 'mine,' when a mine is occupied under a lease, includes the underground workings, and the engines, machinery, workshops, tramways, and other plant, buildings (not being dwelling-houses), and works and surface of land occupied in connexion with, and for the purposes of, the mine, and situate within the boundaries of the land comprised in the lease or leases, under which the dues, or dues and rent, are payable or reserved. The word ' dues ' means dues, royalty, or toll, either in money, or partly in money and partly in kind ; and the amount of dues, which are reserved in kind, means the value of such dues. The word ' lease ' means lease or sett, or license to work, or agreement for a lease or sett, or license to work. And the word ' fine ' means fine, premium, or foreeifl or other payment or consideration in the nature thereof. 3 Where a tin, lead, or copper mine is occupied under a 'lease ' or 'leases' granted without 'fine,' on a reservation wholly or partly of 'dues' or rent, the 'gross value' is the annual amount of the whole of the 'dues' during the year ending on the 31st December preceding the date at which the valuation list or poor-rate 4 is made; in addition to the annual amount of any 1 Sec the Par. Ass. Act. 6 ,V 7 Will. 4. c. 96, s. 1. See also 15 & ] u ' Vict, c. 81, s. C ; Pub. Hea. Act. 1875, s. 211. Cf. the decision, before the Par. Ass. Act, of R. v, Attwood. 6 B. i: C. 277. - 1!. r. Attwood. v. s. : R. Vm West- brook, ii. v. Everi.st. 10 Q. B. 178. 203, 207. 3 See s. 7. 1 See s. 15. SECT. 4.] RATES. 561 reserved fixed rent, which may not be paid or satisfied by such ' dues.' And the ' rateable annual value ' is the same as the gross value; except that, where the person receiving the 'dues ' or rent is liable for repairs, insurance, or other expenses necessary to maintain the mine in a state to command the annual amount of ' dues ' or rent, the average annual cost of the repairs, in- surance, and other expenses for which he is so liable, is deducted from the gross value for the purpose of calculating the rateable value. 1 Where any such mine is occupied under a 'lease' granted wholly or partly on a ' fine ;' or where any such mine is occupied and worked by the owner ; or, in the case of any other such mine, to which the other provisions as to tin, lead, and copper mines do not apply, and of which the royalty or 'dues' are not wholly reserved in kind; 2 the gross and rate- able annual value are the annual amount of the 'dues,' or ' dues ' and rent, at which the mine might reasonably be expected to let without ' fine ' on a lease of the ordinary dura- tion, according to the usage of the country; if the tenant undertook to pay all tenants' rates and taxes, and tithe rent- charge ; and also the repairs, insurance, and other expenses necessary to maintain the mine in a state to command such annual amount of ' dues,' or ' dues ' and rent. 3 A lease comprised a lead mine, land and works; the mine Snaiibeach Co. . . • ■• i ,i J'. Forden — and most of the works being m the union in question, and the double mtin , land and the remaining works being in the neighbouring union. After the ore was crushed and washed, it was taken by a tramway about half a mile to a smelting house, forming part of the works in the neighbouring union, and was there converted into lead for sale. It was held, (1) that the crushing, washing, and smelting works were all included under ' mine,' as above denned, as being " in connexion with, and for the purposes of the mine ;" (2) that the rating authorities were not entitled to assess any part of the mine twice over; and, accordingly, (3) that, in order to obtain the rateable value of the mine in the union in question, a deduction should be made from the gross dues in respect of the rateable premises in the neighbouring union. 4 i g 7> * Snaiibeach Co. v. Forden, 35 L. T. -' See s. 13. N. S. 514. 3 See s. 7. Q Q 563 RATES. [CHAP, XXIII. Eoyalty. Enhanced value. Convenience and situation — profits. Allowances. (j3) Other Circumstances determining Amount. In making a prospective rate on a lessee, who pays royalty, the rate should, in order to calculate the royalty, be, in general, assessed on the following principle -.—Regard should, in general, be had to the quantum, which the plant and machinery used in the particular working are capable of producing within the year of rating, in the absence of proof, that such quantum cannot or will not be produced ; and on the quantum, which they are supposed to produce in the particular year. 1 If, however, the lessee shows, that he could not prudently contract by anticipation to pay more than an amount smaller than the calculated royalty, the smaller amount will be the true criterion according to which to rate him. 2 A licensee of the right of working coprolites in a parish, in which the rates were made quarterly, dug ten acres every year ; and was in possession of ten acres one whole year ; but only exhausted about two and a quarter acres in each quarter. Three acres and a half were the greatest quantity used by him at any one time for coprolite purposes ; and six acres and a half, from which the coprolites had been raised, always lay unproductive. His occupation was perpetually shifting. It was held, that he was rateable in each quarterly rate in respect of ten acres at their enhanced or coprolite value. 3 The amount, at which property used in connection with a mine is rateable, is not the mere amount of the agricultural value of the land on which such property stands ; but the amount of the enhanced value which the land has through the existence of such property. 4 The convenience and situation of a mine or quarry should be considered in estimating its rateability. But the actual profits which its occupier makes are not material, and cannot be allowed to influence the assessment. 5 An allowance may be made in respect of rates on account of 1 R. r. Westbrook, R. v. Everist, 10 Q. B. 178. 2 lb. See p. 20G. 3 B. v. Whaddon, L. R. 10 Q. B. 230, per Mellor, Lush, and Archibald, JJ. ; Cockburn, C.J., dissenting. 4 See Talargoch Co. v. St. Asaph, L. R. 3 Q. B. 478 ; 9 B. & S. 210 ; a case of a watercourse. 5 R. v. Avlesford, 26 L, T. N. S. CIS, SECT. 4.] RATES. 563 the necessity of repairing and replacing works and engines. 1 But in no case can an allowance be made for expenditure in rendering mines or quarries productive. 2 Nor can the amount of the rate be affected by the circumstance that the subject- matter is being gradually exhausted. 3 c. Person Liable. The person liable is the occupier. 4 And by this is meant Generally, the person who has the sole and exclusive possession ; 5 either by himself, or by his servants or agents. A person, who has a mere license to remove the produce of Licensee. a mine or quarry, without more, is not an occupier of it ; and is not, therefore, rateable. 7 And, although a person, who has a license to work a whole mine or quarry, and who enters on a part, may be in constructive possession of the whole, 8 he is only, for rating purposes, in occupation of the part. 9 But where a licensee has an exclusive right to occupy the soil containing the mine in question, he may be rateable in respect of such soil. 10 And where a licensee agreed to " forthwith enter upon " land, and there dig, and effectually fence the excavations, and complete them by a given time, and reinstate the land, and then "yield and deliver up" the land to the grantor; and the excavations and works contemplated by the agreement required a constant occupation of the land ; and it was impossible to use the land for any other purpose from the commencement of the excavations until the reinstatement; it was held, that the 1 R. v. Tonilinson. 9 B. & C. 163, ,; Kittow v. Liskeard, L. R. 10 Q. 1GG ; R. v. Granville, ib. 191. B. 7. 2 R. r. Attwood, G ib. G77 ; R. v. "' See R. r. Trenl Co., I I 1 ,. \ ( '. 57 : Westbrook, R. v. Everist, 10 Q. B. 178 ; R. V. Alnwick. 9 A. & E. 14 1 ; Roads Coltness Co. r. Black, 6 App. Cas. 331. v. Trumpington, L. R. (i Q. 1'.. 62; 3 R. v. Attwood, v. s. ; R. v. West- Morgan v. Crawshay, E. I!. :> II. L. brook, R. v. Everist, u. s. ; Coltness Co. 316; Kittow c. Liskeard. L. R. 10 Q. r. Black, u.s. Cf., as to Income Tax, B. 13 ; R, v. Whaddon. ib. 244. Cf. ante, p. 555. I- & N - w - R - v - Buckmaster, ib. 70, 4 See s. 1 of 43 Eliz. c. 2, cited ante, 444. p. 557 n. s. 8 Sec ">"'•• P- 42 - s Talargoch Co. v. St. Asaph, L. R. 9 R. v. Fayle, 27 L. T. 64. 65. 3 Q. B. 484 ; Kittow v. Liskeard, 10 ib. l0 lb. I Roads v. Trumpington, L. R. 13. 14 ; R. v. Whaddon. ib. 242, 6 Q. B. 56. o o 2 50-i RATES. [chap. XXIII. Grantee of easement. Cost-book company— galee. Rateability depends on occupancy, not title. Lessor, &c, sometimes rateable — tin-bounder- Derbyshire custom. licensee had the exclusive right to occupy the soil ; and was rateable accordingly. 1 A person, who has a mere easement to use a wayleave, 2 or waterleave, 3 for mining purposes, is not an occupier ; so as to make him rateable in respect of it. But if, under a grant of a wayleave with liberty to erect a bridge, the grantee makes a way, and incloses it, and thereby excludes all other persons, he becomes an occupier of the wayleave for rating purposes. 1 And, if the grantee of a waterleave constructs a watercourse with pipes and culverts, he becomes an occupier of the land con- taining them. 5 The members of a cost-book company may have an occupa- tion for rating purposes. But the purser, secretary, and chief managing agent for the time being, of any tin, lead, or copper mine, or any of them, may, if the overseers or other rating- authority think fit, be rated as the occupier. 7 The interest of a galee of mines or quarries in the Forest of Dean, or Hundred of St. Briavels, 8 is probably capable of occupation for rating purposes. 9 A person in actual occupation, although a licensee, or even a mere trespasser, is rateable. For the nature of his title is, for rating purposes, immaterial. 1 " However, where a mine other than a coalmine 11 is in lease or occupation, and the rent or royalty or due is wholly reserved or received in kind, whether under the custom of tin-boundino- in Cornwall, 13 or under express stipulation, 13 the lessor or person receiving is rateable, as being in receipt of a portion of the mine, and the lessee or occupier is exempt. 14 And, even where 1 Roads v. Trumpington, L. R. (I Q. B. 56. - R. v. Jolliffe, 2 T. R, 90. 3 Talargoch Co. v. St. Asaph, L. R. 3 Q. B. 484. 4 R. v. Bell, 7 T. R. 598. 5 Talargoch Co. v. St. Asaph, u. s., 478. c Kittow v. Liskeard, L. R. 10 Q. B. 7. 7 Rat, Act, 1874, s. 7. 8 See ante, p. 483. 9 Morgan r. Crawshay, L. R. 5 H. L. 304. 111 R. r. Bell, 7 T. R. 598 ; Kittow <•. Liskeard. u. s. 13. 14, 15. 11 In the case of coal mines the lessee was always rateable : see ante, p. ."»58, n. 12 See R. v. St. Agnes, 3 T. R. 480 ; R. v. Crease, 11 A. & E. 679; Crease v. Sawle, 2 Q. B. 862, 886. See ante, pp. 431, 432, 558, n. 13 R. r. Baptist Mill Co., 1 M. & S. 612 ; R. v. St. Austell, 5 B. & Al. 693 ; R. v. Todd, 12 A. & E. 816. 11 This was so before the Rat. Act SECT. 4.] RATES. 5G5 a lessor has the option of receiving the royalty in kind or in money ; and he elects to receive it in money ; he is rateable, and the lessee is exempt. 1 And the liability of the lessor is not affected by the circumstance, that the property in question is not, in strictness, of itself, and apart from adjoining property demised to the same lessee, a mine ; if no part of such adjoin- ing property is at the time in process of working. 2 Indeed, even if such adjoining property is at the time in process of working, the lessor is nevertheless apparently rateable. 3 For although one mine may extend through the properties of a variety of owners, each property may contain a mine for rating purposes. 4 Although, however, in such cases, the lessee may be exempt, his exemption is confined to the mine itself. He is rateable in respect of shafts, buildings, and machinery ; and of surface land, and watercourses ; used in connexion therewith." Before the Rat. Act, 1874, a lessee of Crown mines subject to the Derbyshire custom, or a lessee under any other person en- titled to the mineral duties, was rateable, as being in receipt of a portion of the mine ; and the miner was exempt, 7 But it may be doubted whether the Act has not altered the position of the miner in that respect. 8 "Whether the grantor of a wayleave, who receives a rent or royalty in respect of it, and whose grantee is exempt, is himself liable in respect of the rent or royalty, appears doubtful. 9 The liability to rates of mines other than coal mines was first Deductinn established by the Rat. Act, 1874. 10 It was accordingly thereby enacted that, where any poor or other ' local ' rate ; which, at the commencement of the Act, 11 any lessee, licensee, or grantee of a 187-1 (see ante, p. 558, n.). And the law G See ante, pp. 500, et seq. has not been changed : see Rat. Act, ' Sec Rowls r. Cell-. 2 Cowp. 151. 1874, s. 13 ; Van Mining Co. v. Llanid- 8 S. 13 (as to which, see Van Mining loes,'l Ex.D. 310. Co. r. Llanidloes, u. s.) can hardly be i R. v. St. Austell, 5 B. & Al. 693 ; applicable. For duties, which include Van Mining Co. v. Llanidloes, u. s. ' cope ' (as to which, sec ante, pp. 511, v. s 2 Van Mining Co. v. Llanidloes, 512) would not be "wholly reserved in kind." S ' 7J o R. ,.. Jolliffe, 2 T. R. 90. * lb. : see ante, pp. 2, 3. '" See ante, p. 557. n. <\ ■ Van Mining Co. r. Llanidloes, «. s. » The Act, as to most of its pmvi- Thc law was the same before the sions, came into operation on the 6th Rat, Act, 1874 : see ante, p. 558, n. April, 1875 : see s. 11. 566 RATES. [chap. XXIII. mine, was exempt from being rated to in respect of such mine ; became payable by him in respect of such mine during the con- tinuance of his lease, grant, or license, or before the arrival of the period at which the amount of the rent, royalty or dues, was liable to revision or readjustment; he might (unless he had specifically contracted to pay such rate in the event of the abolition of the said exemption) deduct from any rent, royalty, or dues, one-half of any such rate paid by him ; provided that he should not deduct any sum exceeding what one-half of the rate in the pound of such poor or other local rate would amount to, if calculated upon the rent, royalty, or dues, 1 Any payment so authorized to be deducted is a good dis- charge for such amount of rent, royalty, or dues, as is equal to the amount of such payment ; and it may be recovered as an ordinary debt from the person to whom the rent, royalty, or dues may be payable. And the person receiving the rent, royalty, or dues, has the same right of appeal and objection, as he would have if he were the occupier. 2 Devonshire r. Where a lease of iron mines, executed before the com- Ohaioner v. mencement of the Act, 3 contained a covenant by the lessee to Bolckow. p a y a cer ^ a i u rent, free of " all rates, taxes, tithe rent-charges, expenses, and deductions whatsoever, parliamentary, parochial, or of any other nature," it was held, that a specific contract was not thereby constituted ; so as to disentitle the lessee to deduct one-half of the rate from the rent. 1 And even where such a lease contained covenants by the lessee to pay certain rents and royalties, " free and clear of and from all cesses, taxes, rates, charges, and impositions whatsoever, laid or imposed, or here- after to be charged, laid or imposed" by parliament or other- wise, and to pay them "free from all deductions whatsoever," and to pay " all manner of taxes, rates, assessments, charges, and impositions whatsoever, parliamentary or parochial, which now are, or which shall at any time or times hereafter during the continuance of this demise be taxed, rated, charged, assessed or imposed," landlord's property-tax excepted; a similar decision was arrived at. 5 1 S. 8. 4 Devonshire v. Barrow Co., 2 Q. B. 2 S. 9. D. 286. 3 See n. ll on preceding page. s Chaloner v. Bolckow, 3 App. Cas. SECT. 5.] TITHES. 5o7 d. Place of Liability. Where a mine lies in several parishes, it is rateable pro- P ] ace of portionately in each of them; although the adit and machinery liallUlt y- may be situate in one only. 1 Where an Inclosure Act enacted, that the allotments to be set out thereunder should be deemed to be situate in a different parish from that in which they would naturally be situate ; but that nothing in the Act should affect the owner's right to certain mines ; it was held, that the enact- ment only affected the portion of the soil actually allotted to the commoners, and did not affect the mines ; and that the mines remained rateable in the parish in which they were actually situate, as before the Act. 2 Sect. 5.— TITHES. Tithes are not payable, of common right, of quarries of Tithes, stone, gravel, turf, tin, lead, brick, lime, marl, coal, chalk, and such like ; these substances being a produce of the earth, and not an annual produce. 3 But ore payable by way of tithe may be due by custom ; as in Worselworth, Hartington, and Eyam in Derbyshire, 4 and Stoney Middleton, in the same county ; 5 Teasdale Forest, in the county of Durham, 6 and Stanhope in Weardale, in the same county; 7 and Arkilgarth dale, in York- shire. 8 Mineral tithes are not within the Tithe Comm. Act, 6 & 7 Will. 4, c. 71. 9 But they may be made the subject of a parochial agreement under the Tithe Comm. Act, 2 & 3 Vict. c. 62. 10 033. See this case for a statement of Buxton v. Hutchinson. 2 Vera. 46. the principle of the provision in 4 Ante, p. 518. question. ° ■**■ 1 R. v. Foleshill, 2 A. & E. 593; 6 Ante, p. 520. Snailbeach Co. v. Forden, 35 L. T. N. ~> Ante, p. 621. S. 514, 517 ; ante, p. 561. 8 lb. 2 R. v. Pitt, 5 B. & Ad. 565. 9 See s. 90. 3 2 Inst, 657 ; Arniles r. Chambers, 1J Sec s. 9. 1 Mod. 35 ; Stoutfil's Case, 2 Mod. 77; 568 PAUPER SETTLEMENTS. [CHAP. XXIII. Sect. 6.— PAUPER SETTLEMENTS. Pauper _ Jt is doubtful, whether a coal mine is ' land ' within the settlements. Act 6 Geo. 4, c. 57 ; so as to enable an occupation of it to confer a settlement. 1 But if it is, it must be rented at £10 a year at the least, for the whole of the year during which it is occupied. 3 A pauper freeholder, entitled to dig turf for his own use, and get stone from a common, is not, therefore, irremoveable from the parish under the Acts 14 Car. 2, c. 12, and 35 Geo. 3, c. 101, s. I. 8 1 See E. v. West Ardsley, i B. & S. - 1 b. 95. 3 R. v. Warkworth, 1 M. & S. 473. CHAPTER XXIV. EMPLOYERS AND LABOURERS. PART A.— REGULATION ACTS. Sect. 1.— GENERALLY. The internal regulation of mines is governed by the Coal Generally. Mines Regulation Act, 1872, 1 and the Metalliferous Mines Regulation Act, 1872 ; ~ as supplemented and altered by the Acts 38 & 39 Vict. c. 17, s. 59 ; 38 & 39 Vict. c. 39 ; 44 & 45 Vict. c. 26 ; and 45 & 46 Vict. c. 3. The Coal Mines Act applies to mines of coal, mines of stratified Application ironstone, mines of shale, and mines of fire-clay. 3 The Met. ° Mines Act applies to mines other than those to which the Coal Mines Act applies. 4 And if any question arises whether a mine is a ' coal ' mine, or a ' metalliferous ' mine, it is referable to a Secretary of State; whose decision is final. 5 The Met. Mines Act, subject to certain modifications, applies to the Isle of Man. 6 It has been doubted whether the Met. Mines Act applies to Crown mines subject to the Derbyshire custom. 7 But, apparently, this doubt is not well founded. 8 In each Act ' mine' includes, prima facie, every shaft in the statutory course of being sunk, and every level and inclined plane in the "inline " course of being driven for commencing or opening any mine, or*"* '&*&•' for searching for or proving minerals, and all the shafts, levels, planes, works, machinery, tramways, and sidings, both below i 35 & 36 Vict. c. 76. M. C. 82, 87. As to the Derbyshire 2 35 & 36 Vict. c. 77. custom, see ante, pp. 500, et seq. 3 See s. 3. 3 Under s. 39 of the Act. and under 4 gee s ' 3 ' s. 1 of 38 & 39 Vict. c. 39, Barmasters s Coal Mines Act, s. 70; Met. Mines (as to whom see ante, p. 504,) arc a t s 39 charged with certain specified duties : e'sees. 43. see post, p. 604. 7 See Arkwright v. Evans, 49 L. J. 570 REGULATION ACTS — GENERALLY — [('HAP. XXIV. ground and above ground, in and adjacent to a mine, and any such shaft, level, and inclined plane, and belonging to a mine. 1 However, where two or more parts of a 'coal mine' are worked separately, the ' owner ' or ' agent ' may give notice to that effect to the inspector ; ~ and thereupon each part is deemed to be a separate mine. If, however, the Secretary of State thinks that the division tends to evade the provisions of the Coal Mines Act, he may give notice of objection thereto. If the 'owner' or 'agent' declines to acquiesce in the objection, he may within twenty days give notice to the inspector, that he so declines. And the matter is thereupon determinable by arbitration ; the receipt of the last notice being deemed to be the date of the reference. 3 In each Act ' shaft,' prima facie, includes ' pit.' 4 A slate quarry worked by means of under- ground workings by levels has been held to be a ' mine ' within the meaning of the Met. Mines Act. 5 Statutory In each Act 'owner' means, prima facie, any person or "owner^and body corporate who is the immediate proprietor, or lessee, or ' agent.' occupier ; and does not include a person or body corporate who merely receives a royalty, rent, or fine ; or is merely the pro- prietor, subject to any lease, grant, or license for the working ; or is merely the owner of the soil, and is not interested in the minerals. 6 And any contractor for the working of a ' coal mine ' is subject to the Coal Mines Act as if he were an ' owner;' but not so as to exempt the ' owner ' from liability. 7 If there are two or more co-owners, ' owner ' includes any of them. 8 Of course the holder of an expired lease is not an 'owner.' 9 And the mere recipient of a rent or royalty does not become an ' owner,' because he is also a lessee. 10 In the Coal Mines Act 1 Coal Mines Act. s. 72 ; Met. Mines Act, s. 41. The words '■ and not inter- Act, s. 41. ested in the minerals.'* refer to the 2 As to 'inspectors,' see ]>ost, pp. immediately preceding words, and not 571 — 576. to all the three categories included in 3 Coal Mines Act. s. 25. Astoarbi- the exception : see Evans v. Mostyn, trations, seepost, pp. 600. (501. 2 C. I'. D. 547, 552. 4 S. 72 ; Met. Mines Act. s. 41. ~> Coal Mines Act. s. 72. 3 Sim r. Evans, 28 W. R. 730. See s K. v. Brown. 7 E. & B. 757. ante, p. 5. Other quarries arc subject D Sec Stott v. Dickinson, 31 L. T. N. to the Factory and Workshop Acts : S. 291. seepost, pp. 606, 607. 10 Arkwright v. Evans, 49 L. J. M. ( !. G Coal Mines Act, s. 72 : Met. Mines 82. PART A, SECT. 2.] SUMMARY PROCEEDINGS. 57 | ' agent ' means, prima facie, any person having on behalf of the ' owner ' care or direction of a ' mine,' or any part thereof, and superior to a ' manager.' In the Met. Mines Act ' agent ' means, prima facie, any person having on behalf of the ' owner' care or direction of a mine, or any part thereof. 1 All notices under either Act may be served by post by a Notices, prepaid letter ; and, in proving service, it is sufficient to prove, that the letter was properly addressed and posted. 2 Sect. 2.— SUMMARY PROCEEDINGS— OFFENCES, PENALTIES, AND PUNISHMENTS. (a) Summary Proceedings. In each Act the term ' Court of Summary Jurisdiction ' Court of means : 3 — In England and Ireland, any justice or justices of the j ur i s< _uctiou. peace, metropolitan police magistrate, stipendiary or other magistrate or officer to whom jurisdiction is given by the Sum- mary Jurisdiction Acts, 4 or any Acts therein referred to ; and in Scotland, any justice or justices of the peace, sheriff or other magistrate, to the proceedings before whom the provisions of the Summary Jurisdiction Acts 5 may be applied. The Court of Summary Jurisdiction, when hearing and determining an information or complaint under either Act, is required to be "constituted : in England, either of two or more justices of the peace in petty sessions, or of some single magistrate or officer having equivalent powers : in Scotland, of two or more justices of the peace, or of the sheriff or some other single magistrate or officer having equivalent powers; and in Ireland (within the police district of Dublin), of one of the divisional justices of that 1 Coal Mines Act, s. 72 ; Met. Mines peace for, or of the police of. such Act, s. 41. district, ami (elsewhere) the Petty 2 Coal Mines Act, s. 71 ; Met. Mines Sessions (Ireland) Act. 1861, and any Act, s. 40. amending Act : sec ib. 3 Coal Mines Act, s. 72 ; Met. Mines 5 Is., The Summary Proe.Act,1864 : Act. s. 41. see ib. * I.e., in England, 11 & 12 Vict. c. 43, 6 Sec further, as to the application and any amending Acts ; and in Ire- of the Acts to Scotland, Coal Mines land (within the police district of Act, ss. 65, 73 ; Met. Mines Act, ss. 36. Dublin), the Acts regulating the 42. powers and duties of justices of the 572 REGULATION ACTS — SUMMARY PROCEEDINGS — [cHAP. XXIV. district, and (elsewhere), of two or more justices of the peace in petty sessions. And, in every case, the Court must sit at the properly appointed place. 1 An ' owner/ ' agent,' or manager of a ' coal mine,' or his father, son, or brother, cannot act as a Court or member of a Court of Summary Jurisdiction in respect of an offence under the Coal Mines Act. 2 (/3) Offences, Penalties, and Punishments. Generally. Every person employed in or about a ' mine ' other than an ' owner,' ' agent/ or manager, 3 who is guilty of any act or omis- sion, which in the case of an ' owner,' ' agent,' or manager, would be an offence against the Act in question, is guilty of an offence. Every person guilty of an offence is liable to a penalty, if he is an 'owner,' 'agent,' or manager, of £20; and, if he is any other person, of £2 ; for each offence. And, if the inspector has given written notice of any such offence, he is liable to a further penalty of £1 for every subsequent day that such offence continues. 4 Proceedings All offences under the Coal Mines Act not declared to be and penalties, misdemeanours, 5 and all offences under the Met. Mines Act, and all penalties under either Act, and all money and costs by either Act directed to be recovered as penalties, may be prosecuted and recovered before a Court of Summary Jurisdiction. 6 Any com- plaint or information under either Act must be made or laid within three months. 7 The description of any offence in the words of the Act is sufficient. Any exception, exemption, proviso, excuse, or qualification, may be proved by the defendant ; but it need not, even if specified or negatived in the information, be 1 Coal Mines Act. s. 62 ; Met. Mines 5 See post, pp. 578, 579. Act, s. 33. See, as to procedure in fi Coal Mines Act, s. 62 ; Met. Mines Scotland, Dykes v. Merry, 7 Sess. Cas. Act, s. 33. (3rd ser.) 603 ; Nimmo v. Clark, 10 it. '• The repealed Act. IS & 19 Yict. 477 : decisions under the rep. Act, c. 108, provided that " all penalties 23 & 24 Vict. c. 151. may be recovered within three 2 Coal Mines Act, s. 67. months ; " which apparently applied 3 ' Managers ' only exist in the case not to the commencement of the pro- of mines governed by the Coal Mines ceedings, but to the time of the judg- Act : post, p. 576. ment : see E. v. Mainwaring, E. P>. & E. 4 Coal Mines Act, s. 60 ; Met Mines 474. Act, s. 31. FART A, SECT. 2.] OFFENCES, PENALTIES, AND PUNISHMENTS. proved by the informant. An 'owner,' 'agent' or manager may, if he thinks fit, be sworn and examined, where he is charged in respect of any non-observance by another person. And the Court must, if required by either party, cause minutes of the evidence to be taken and preserved. 1 The Court must not impose a penalty under the Coal Mines Act exceeding £50. But that or any less penalty may be imposed for any (me offence, notwithstanding that the offence involves a higher penalty. 2 An 'owner,' 'agent,' or manager, or a person employed, who Imprisonm at. is guilty of an offence, which was reasonably calculated to endanger the persons employed, or to cause them serious per- sonal injury, or to cause a dangerous accident, and was com- mitted wilfully by the personal act, personal default, or personal negligence of the person accused, may, if the Court thinks a pecuniary penalty inadequate, be imprisoned with or without hard labour, for a period not exceeding three months. 3 A person may appeal from a sentence of imprisonment, or Appeals. from the imposition of a penalty amounting to or exceeding- half the maximum penalty, to the next Court of General or Quarter Sessions holden not less than twenty-one days after- wards. The appellant must within seven days give notice to the other party and to the Court below of his intention to appeal, and of the ground thereof. And he must, immediately after the notice, give security before a justice of the peace to try the appeal, and to abide the judgment of the Court, and to pay such costs as may be awarded. But the justice may, if he thinks fit, thereupon release him from custody. The Court of appeal may adjourn the appeal ; and it may confirm, reverse, or modify the decision below, or remit the matter to the Court below, or make such other order as it thinks just; and it may make such order as to costs as it thinks just, 4 No prosecution can be instituted against an 'owner,' ' agent,' Prosecutions. or manager for any offence which can be prosecuted before a i Coal Mines Act. s. 63 ; Met. Mines 4 lb. These provisions are subject a t s 34 t0 certaia qualifications with respect 2 See s' 63 to Scotland : sec the sections in ques- s Coal Mines Act, s. 61 ; Met. Mines tion. Act, s. 32. .74 REGULATION ACTS — OFFENCES, PENALTIES, [CHAP. XXIV. Same offence not twice punishable. Application of penalties. Court of Summary Jurisdiction, except by an inspector, or with the consent in writing of the Secretary of State. And, in the case of any offence of which the ' owner,' ' agent,' or manager is not guilty, if he proves that he had taken all reasonable means to prevent its commission, an inspector must not in- stitute a prosecution, if satisfied that such means had been taken. 1 No person can be punished twice for the same offence. But subject to this, any person may be indicted or liable under any other Act or otherwise to another or higher penalty or punish- ment. And if the Court before whom a person is charged thinks, that proceedings ought to be taken under any other Act or otherwise, the case may be adjourned for that purpose. 2 Where a penalty is imposed for neglecting to notify an explosion or accident, 3 or for any offence which has occasioned loss of life or personal injury, the Secretary of State may direct the penalty to be paid to the persons injured, and the relatives of those whose death may have been caused, or some of them. But such persons must not have occasioned the explosion or accident, or committed the offence, or contributed to do so. And the fact of such payment must not affect any proceeding relative to such explosion, accident, or offence. Subject as above, all penalties must be paid into the receipt of the Exchequer, and carried to the Consolidated Fund. In Ireland all penalties must be applied as directed by the Fines Act (Ireland), 1851, and any amending Act. 1 Sect. 3.— INSPECTORS— CERTIFICATED MANAGERS, (a) Inspectors} Appointment, Inspectors are appointed and removed by the Secretary of removal and . . qualifications. State ; who assigns them their duties, and awards them 1 Coal Mines Act. s. 64 ; Met. Mines Act, s. 35. 2 Coal Mines Act, s. GO ; Met. Mines Act, s. 37. 3 See post, pp. 601, 002. 4 Coal Mines Act, s 08 ; Met, Mines Act, s. 38. 5 As to inspectors acting as such at the commencement of the Acts, see Coal Mines Act, s. 74 ; Met. Mines Act, s. 44, PART A, SECT. 3.] AND PUNISHMENTS — INSPECTORS. .".7.") sncli salaries as the Commissioners of the Treasury approve. 1 Inspectors appointed under either Act may, if directed by the Secretary of State, act under the other.- Land agents and mining engineers; and managers, vie .vers, 'agents' and valuers of ' mines ;' and arbitrators in differences between ' owners,' 'agents,' and managers of 'mines;' and the partners of such persons ; and persons otherwise employed in ' mines ;' are dis- qualified from acting as inspectors. 3 Inspectors are empowered to make all necessary inquiries for Powers— . Kencrfilly. ascertaining whether the provisions of the Acts are complied ° with ; to enter, inspect, and examine any 'mine' at all reason- able times by day and night, but not so as to impede or obstruct the working ; to make inquiry respecting the condition of any 'mine,' and the ventilation thereof, and the sufficiency of the special 4 rules for the time being in force therein, and the safety of the persons employed therein, or in any contiguous ' mine ;' and to exercise such other powers as may be necessary for carrying the Acts into effect. And persons who wilfully obstruct inspectors; and 'owners,' 'agents,' and managers who refuse or neglect to furnish to inspectors the means necessary for exercising their powers ; are guilty of offences against the Acts. 3 The 'owner,' 'agent,' or manager must keep in the office at Ha ns - the mine ; or (in the case of ' metalliferous mines ') in the principal office of the mines belonging to the same ' owner ' in the district ; an accurate plan 7 of the workings. And such plan must show (in the case of ' coal mines ') the workings up to six months previously; and (in the case of 'metalliferous mines ') the workings up to six months previously other than workings last discontinued more than twelve months before the commencement of the Met. Mines Act. 8 And the 'owner,' i Coal Mines Act, s. 43 ; Met. Mines Act, s. 17. Act, s. 15. Notice of the appointment c There are no certificated managers must be published in the London in ' metalliferous mines.' Gazette : lb. " ' ^ an ' includes a map and section, 2 See ib. ancl a correct copy or tracing of any 3 Coal Mines Act, s. 44 ; Met, Mines original plan : Coal Mines Act, s. 72 : Act s. 16. M- et - Mines Act, s. 41. * 'see post, pp. 592—595. 8 1st Jan., 1873 : see s. 2. s Coal Mines Act, s. 45 ; Met. Mines 576 REGULATION ACTS — INSPECTORS — [CHAP. XXIV. 'agent/ or manager must produce the plan to an inspector at the office ; and, if requested, mark the progress of the workings up to the time of production ; and must allow the inspector to examine it. Non-observance of these provisions is an offence against the Act in question. And, in addition, the inspector may (whether a penalty has or has not been inflicted) require an accurate plan to be made within a reasonable time at the expense of the 'owner;' and non-compliance with the requisi- tion is also an offence against the Act. But these provisions only apply,, in the case of 'metalliferous mines,' to those in which more than twelve persons are ordinarily employed below ground. 1 (/3) Certificated Managers? Appointment Every ' coal mine ' is required to be under the control and of managers. ( ] a jiy supervision of a manager. And the ' owner ' or ' agent ' is obliged to nominate himself or some other person (not being a contractor for getting the mineral, or a person in his employ- ment) to be the manager ; and to notify to the district inspector his name and address. To be qualified, a manager must be registered as the holder of a certificate. If any ' coal mine ' is worked for more than fourteen days without a qualified manager, the 'owner' and 'agent' are each liable to a penalty of £50; and to a further penalty of £10 for every day during which the mine is so worked. But the ' owner ' will be free from liability, if he proves that he had taken all reasonable means to comply with the above provisions. And, if, for any reasonable cause, there is for the time being no qualified manager, the ' owner ' or ' agent ' may appoint any competent person to be a temporary manager ; notifying his name and address, and the reason of his appointment, to the district inspector. And a mine in which less than thirty persons are ordinarily employed below ground, or of which the average daily put-out does not exceed twenty-five tons, is exempt from the above provisions, unless the district inspector otherwise directs. 3 1 Coal Mines Act, s. 47 ; Met. Mines in ■ metalliferous mines.' Act, s. 19. :i Coal .Mines Act. s, 26. - There are no certificated managers PART A, SECT. 3,] CERTIFICATED MANAGERS, 577 Examiners exist for the purpose of granting certificates of Examiners competency to managers ; and Boards exist for the purpose of appointing the examiners. The members of a Board are them- selves appointed and removed by the Secretary of State. And they consist of three ' owners ' of 'coal mines;' three persons employed in or about a 'coal mine,' not being 'owners,' 'agents,' or managers; three mining engineers, 'agents,' managers, or coal viewers ; and one inspector under the Coal Mines Act. 1 The proceedings of a Board arc in accordance with specified rules. 2 Examiners cannot be members of a Board except with the consent of the Secretary of State. A Board may make, alter, and revoke rules as to the conduct of the examinations, and the qualifications of the applicants; but in every examination regard must be had to such knowledge as is necessary for the practical working of mines. 3 The Secretary of State may make, alter, and revoke rules as to the places and times of examinations ; the number and remunera- tion of the examiners; and the fees (which are not to exceed £2) to be paid by the applicants. 4 The Secretary of State delivers a certificate of competency to every successful appli- cant ; and a register of the holders of certificates is kept under his direction. 5 A copy may, in case of loss, be obtained on payment of a fee of five shillings. 6 The Secretary of State may at any time institute a public Inquiry into J * competency. inquiry into the competency of a manager. He appoints a county court judge, metropolitan police magistrate, stipendiary magistrate, or other person or persons, either alone, or with an assessor or assessors, to conduct the inquiry ; and he appoints a person to conduct the case. 7 And he may pay to the mem! of the Court, including the assessors, such remuneration as, with the consent of the Treasury, he appoints. 8 But he is bound, before the inquiry commences, to furnish a statement of the case to the manager. The manager may attend by i g 27 service, having the same effect as certi- 2 See sell 2 to the Act. ficates of competency : see s. 31. 3 g 2g fi S. 35 ; sch. 1. As to reports, see « S. 29; sch. 1. J"' xt ■ P- li0: '- 5 S. 30. Managers, existing as such ■ S. 32. at the passing of the Act, were also 8 ' ; . 33. entitled to grants of certificates of »78 REGULATION ACTS MANAGERS EMPLOYMENT [CHAP. XXIV. Record of cancellation — restoration. Expenses of Secretary of State — fees. Misde- meanours. himself, his counsel, solicitor, or agent ; and he may, if he thinks fit, be sworn and examined as an ordinary witness. 1 The Court of inquiry has all the powers both of a Court of Summary Jurisdiction, and of an inspector. The Court may also by summons require the attendance of witnesses ; who are entitled to such expenses as would be allowed to witnesses attending on subpoena before a Court of Record ; and, in case of dispute as to the amount, to such expenses as may be certified by a master of the High Court. The Court may cancel or suspend the certificate. And it may require a manager, under pain of forfeiting of £100, to deliver it up ; and may hold it until the conclusion of the inquiry ; and may then restore, cancel, or suspend it. 2 The Court may also make such order respecting the costs and expenses of the inquiry as it thinks fit ; and such order is enforceable by any Court of Summary Jurisdiction. 3 A cancellation or suspension must be recorded in the register of holders of certificates ; but a certificate may be restored by the Secretary of State, if it is shown to him to be just to do so. 4 All costs and expenses ordered by the Court of inquiry to be paid by the Secretary of State, and all remunerations payable to members of the Court, and all expenses incurred by the Secretary of State with respect to certificates, are payable out of moneys provided by Parliament. 5 All fees payable by applicants for examination for, or for a copy of, a certificate must be paid into the receipt of the Exchequer, and carried to the Consolidated Fund. 6 Any person who (1) forges, or counterfeits, or knowingly makes any false statement in any certificate of competency, or any official copy of such certificate; or (2) knowingly utters or uses any such certificate or copy which has been forged or counterfeited or contains any false statement ; or (3) for the purpose of obtaining, for himself or any other person, employ- ment as a certificated manager, or the grant, renewal, or restoration of any certificate, or a copy thereof, either (a) makes 1 s. 32. * s. 34. - lb. s g s< 33j 36< :i S. 33. As to reports, see post, fi S. 36, p. 605. TART A, SECT. 3.] OF WOMEN, YOUNG PERSONS, AND CHILDREN. 579 or gives any declaration, representation, statement, or evidence, which is false in any particular, or (b) knowingly utters, produces, or makes use of any such declaration, representation, statement, or evidence, or any document containing the same ; is guilty of a misdemeanour; and is liable, on conviction, to imprisonment for a term not exceeding two years, with or without hard labour. 1 Sect. 4.— EMPLOYMENT OF WOMEN, YOUNG PERSONS, AND CHILDREN. (a) Generally. Non-observance by any person of the provisions as to employ- Offences as to ment is an offence against the Act in question. Ami the ' owner,' ' agent,' and manager, or the ' owner ' and ' agent ' (as the case may be), are also each guilty of an offence, unless he proves that he had taken all reasonable means to prevent the non-observance. If, however, it appears that any non- observance was induced by a misrepresentation as to age by a parent or guardian, no such offence will have been committed. But, in that case, the parent or guardian will be guilty of an offence. 2 In the Coal Mines Act ' child ' means a child under the age Statutory . . . , e , ^meanings of of thirteen years; 'young person a person ot the age ot 'child,' thirteen, and under the age of sixteen years ; and 'woman' a '• v " mi - ' i"' 1 '" ' o •> son, :m. Id, 17 ; Met. Mines Act. s. 9. 2 Coal Mines Act. s. 1 7. 584 REGULATION ACTS WAGES [CHAP. XXIV. : check weigher ' at the place appointed for the weighing, measuring, or gauging, to take an account. The check weigher must be one of the persons employed either in the mine in question, or in another mine belonging to the ' owner.' He must not impede or interrupt the working ; and he must not interfere with the weighing, measuring, or gauging ; and his absence is no reason for interrupting or delaying it. But he must be afforded every facility for taking an account. And if proper facilities are not afforded, the ' owner,' ' agent,' and manager are each guilty of an offence against the Coal Mines Act, unless he proves that he had taken all reasonable means to afford them. If the ' owner,' ' agent,' or manager desires the removal of a check weigher, he may complain to any Court of Summary Jurisdiction ; l which, if of opinion that sufficient prima facie ground has been shown, must call upon the check weigher to show cause against his removal. And at the hearing the Court may make a summary order for his removal (but without prejudice to the stationing of another check weigher in his place) ; and may make such order as to costs as it thinks just. 2 For the purpose of obtaining a summary order it is not necessary to show actual interruption to the working. The order may be obtained in such a case as that of intimidating workmen with a view of compelling them to cease working. 3 A check weigher ceases to be such, if and so soon as the miners who appointed him are dismissed, and the mine closed. And, although the same miners be immediately re-engaged, he is not thereby reinstated. 4 Weights and The Weights ami Me as. Act, 1S78, 5 applies to the weights used in any 'coal mine ' for determining wages by weight. And the district inspector of weights and measures must accordingly from time to time, but without unnecessarily impeding or interrupting the working of the mine, inspect and examine the weighing machines and weights used in, or the measures or gauges used for, any ' coal mine.' But this provision does not prevent the use of the measures or gauges ordinarily used. 6 1 Ante, p. 571. 4 Whitehead v. Holds-worth. 4 Exch. - Coal Mines Act, s. IS: see also D. 13. s. 02. 5 II & 42 Viet. c. 49. 3 I'rentice ('. Hall, 2C> W. E. 2:57. 6 Coal Mines Act, s. 1!'. commodal ii a. PART A, SECT. 6.] DRESSING ACCOMMODATION. 585 (/3) Dressing Accommodation. In a ' metalliferous mine,' in which more than twelve persons Dressing ac- are ordinarily employed below ground, sufficient accommodation must be provided above ground near the principal entrance of the mine, and not in the engine house or boiler house, to enable them to conveniently dry and change their dresses. 1 Sect. 6.— PROVISIONS AGAINST ACCIDENTS - a. General Rules. 3 (a) Generally. Non-observance of the general rules is an offence against offences as the Act in question. And in the event of any non-observance Rules, by any person being proved, the 'owner,' 'agent,' and manager, or the ' owner ' and ' agent ' (as the case may be), are each guilty of an offence against the Act, unless he proves that he had taken all reasonable means, by publishing and enforcing the rules, to prevent such non-observance. 4 Under this provision separate proceedings may be had against anyone of two or more co-owners. And the agent of a 'coal mine' may be convicted thereunder, although the mine is under the control of a duly certified manager. And it has been held, that a certified manager might have been convicted, who might with the resources at his command have improved the condition of the mine ; although to place it in a perfectly proper condition would have entailed an outlay of £200, and his own salary was only £1 a week. 7 And a working miner may be convicted thereunder as well as an owner or agent. s An information was, 1 Met. .Mines Act. s. 23 (ni). decision under the repealed Act, 18 & - For the punishment of conduct l'.i Vict. c. 108, ss. 4. 11. calculated to cause accidents, see 6 Wynne v. Forrester, 6 C. 1'. D. ante, p. 573. 361. Df. the repealed Act, 23 & 24 3 So called in the Acts. Vict. c. 151, ss. 10, 22, and thedecision 4 Coal Mines Act, s. 51 ; Met, Mines thereon of Dickenson v. Fletcher. L. R. Act, s. 23. See also Coal Mines Act, 9 C. P. 1. s. 51 (28). As to publishing, see post, 7 Hall ?\ Hopwood, 49 L. J. M. C. pp. 605, 606. 17. 5 See R. r. Brown, 7 E. & B. 757 ; a s Frecheville r. Souden, 48 L. T. »>12. 586 REGULATION ACTS — PROVISIONS [ciIAP. XXIV. Books. Inspection of ' coal mines ' on behalf of workmen. under this provision preferred against a part owner of a ' coal mine.' It was proved, that the general rules were put up in various parts of the mine ; that the defendant occasionally visited the mine, but resided at a distance, and took no part in the management ; and that the management was under the exclusive control of the certified manager, who was also a part owner. The defendant was not examined as a witness, as he might have been ; l but it was admitted that he had not per- sonally taken any means to enforce the rules. The justices dismissed the information. It was held, that there was evidence from which they might properly have done so. 2 The books mentioned in the general rules applicable to ' coal mines,' or a copy, must be kept at the office at the mine ; and any inspector, and any person employed, may at all reasonable times inspect, and take copies of and extracts from, any such books. 3 The persons employed in a ' coal mine' may appoint two of their number to inspect it at their own cost. And the persons so appointed may once a month go to every part, and inspect the ' shafts,' levels, planes, working places, return airways, ventilating apparatus, old workings, and machinery ; and they must be afforded every facility for such purpose. They must report the result, and record the report in a specified book, and sign it. 4 Fencings — shafts — roads and working places. (0) Fencings— Shafts, Roads, anal Working Places— . Machinery. All entrances to places in ' coal mines ' not in actual course of working and extension must be fenced across their whole width. 5 And the top of every ' shaft ' in a ' coal mine,' and of almost every ' shaft ' in a ' metalliferous mine,' which is out of use, or used only as an air shaft, must be fenced. And the top and all entrances between the top and bottom of every working or pumping ' shaft ' in a mine governed by either Act, must be fenced ; but the fence may be temporarily removed for repairs 1 Under s. 63, sub-s. 4 : sec ante, p. 573. 2 P.aker v. Carter. 3 Exch. D. 132. Coal Mines Act. s. 51 (31). S. 51 (30). S. 51 (4). f *t TART A, SECT. 6.] AGAINST ACCIDENTS. 5&7 or other operations, if proper precautious arc used. 1 Where the natural strata are not safe, every working or pumping 'shaft' in a mine governed by either Act must be securely cased, lined, or otherwise made secure. 2 And where one portion of a shaft in a ' metalliferous mine ' is used for the ascent and descent of persons, and another portion for raising the material gotten, the first portion must be cased or otherwise securely fenced off .from the last. 3 And the roofs and sides of every travelling road and working place in a 'coal mine ' must be made secure; and, if not secured, persons are not allowed to travel or work therein, unless appointed to explore or repair. 4 Where, in a 'coal mine,' there are a downcast and a furnace Use of different ' shaft,' and both have apparatus for raising and lowering persons, enamMnan— every person emploved is entitled, on giving notice, to use the gulJes : "" 1 ... signalling. downcast 'shaft.' ° In any ' coal mine,' which is usually entered by machinery, a proper engineman must attend to work the lowering and raising machinery during the whole time that any person is below ground. 6 Every working ' shaft ' in a ' coal mine ' used to draw minerals, or in a mine governed by either Act used to lower or raise persons, must, if exceeding fifty yards in depth, and not exempted by the district inspector, have guides and proper means of signalling from and to the bottom, and every entrance in work between the surface and the bottom, to and from the surface. 7 A sufficient cover overhead must be used in lowering or Cover over- raising persons in a working ' shaft,' except where it is worked _fl an ^g a ™ s by a windlass, or the person is employed about the pump or horns—breaks J ... . . aml indicators repairs, or the district inspector gives exemption/ And for a - ladders. breach of this provision a working miner may be convicted as well as an owner or agent. 9 Single-linked chains are not allowed except for the short coupling chain attached to the cage or load. Flanges or horns, and other appliances must be used on drums. 1 S. 51 (13), (1±) ; Met. Mines Act. 6 Coal Mines Act, s. 51 (17). s. 23 (6), (7). 6 S. 51 (IS). 2 Coal Mines Act, s. 51 (15) ; .Met. ' S. 51 (ID) : Met. Mines Act. s. 23 Mines Act. s. 23 (8). (10). 3 Met. Mines Act, s. 23 (9). s Coal Mines Act, s. 51 (20) ; Met. 4 Coal Mines Act, s, 51 (16). As to Mines Act. s. 23 (11). the fencing of abandoned mines, see 9 Frecheville v. Souden, 18 L. T. (il2. post, pp. 598—600. i » 588 REGULATION ACTS PROVISIONS [CHAI\ NN1Y. to prevent the rope from slipping. Breaks, and indicators, to show to the person in charge the position of the cage or load, must be attached to every machine worked by steam, water, or mechanical power. 1 A ladder permanently used for ascent or descent in a ' metalliferous mine ' must not be fixed in a vertical or overhanging position, and must be inclined at the most con- venient angle, and must have substantial platforms at intervals of not more than twenty yards. 2 Fencings— Fly-wheels, and exposed and dangerous parts of machinery, ^ugesand usec ^ in mines governed by either Act, must be securely ^}l A ' alve_ " fenced. 3 Every steam boiler must have a proper steam gauge wilful damage, J r r o o &c. and water gauge, and a proper safety valve. 1 No person must wilfully damage ; or, without proper authority, remove or render useless ; any appliance or thing provided in any mine in compliance with either Act. 5 Daily inspec- Tn the case of ' coal mines ' a competent person must examine tion of ' coal . „ , , , , - , mine.' once m every twenty-tour hours the external parts of the machinery, and the head gear, working places, levels, planes, ropes, chains, and other works ; and once in every week the ' shafts' by which persons ascend or descend, and the guides or conductors therein ; and report the result. And he must record the report in a specified book, and sign it, 6 (y) Gases and Explosions — Water — Stations and Refuges. Gases— An adequate amount of ventilation must be constantly pro- ventilation. ii- , • , , i , /■ i „ duced in every 'mine, to such an extent (in the case of 'coal mines,' by diluting and rendering harmless noxious gases), that the ' shafts,' levels, stables, and working places, and the travelling roads to and from such working places, may be fit for working and passing. 7 To comply with this provision ventilation must be produced even during the temporary suspensions of actual 1 Coal Mines Act, s. 51 (21). (22). Mines Act. s. 23 (17). (23) ; Met. Mines Act, s. 23(12), (13). * Coal Mines Act. e. 51 (25) ; Met. (14). See the Sc. decision under the Mines Act, s. 23 (18). repealed Act, 23 & 21 Vict. c. 151, of ■' Coal .Mines Act, s. 51 (27); Met. Nimnio p." Clark, 10 Sess. Cas. (3rd Mines Act, s. 23 (19). ser.) 177. c Coal Mines Act, s. 5] (29). - Met, Mines Act, s. 23 (15). • Coal Mines Act, s. 51 (1) ; Met. 3 Coal Mines Act, s. 51 (24); Met. Mines Act. s. 23 (1). PART A, SECT. G.] AGAINST ACCIDENTS. 539 work, as on Sundays. 1 And it is not a sufficient compliance to cause ventilation to pass along the working places and travelling roads. So much of the mine must be kept so ventilated as to render the working places and travelling roads safe. 2 In every ' coal mine,' in which inflammable gas has been inflammable found within the preceding twelve months, a competent person gas— re P° rts - must, once in every twenty-four hours, if one shift of workmen is employed, and once in every twelve hours, if two shifts are employed, before the time for commencing work in any part, inspect such part, and the roadways leading thereto with a safety-lamp ; and make a report of their condition as to ventila- tion. And in every ' coal mine,' in which inflammable gas has not been so found, a competent person must, once in every twenty-four hours, so far as practicable, immediately before the time for commencing work in any part, inspect such part, and the roadways leading thereto ; and make a like report. In each case workmen are prohibited from working, until the parts in question, and the roads leading thereto, are stated to be safe ; and in each case the report must be recorded without delay in a specified book, and signed by the person making it. 3 In every working approaching any place in a 'coal mine/ Safety lamps— where there is likely to be an accumulation of explosive p-as ,!f rometei T J r o > thermometers, no lamp or light other than a locked safety-lamp is allowed. And, where a safety-lamp is required, a competent person must examine it immediately before it is taken into the workings, and ascertain it to be secure, and securely locked. And, in the dangerous place in question, it must not be used without such examination, and must not be unlocked without due authority; nor is any person, unless he is appointed for the purpose, allowed to have in his possession any key or contrivance for opening the lock, or any lucifer match or apparatus for striking a light. 4 After dangerous gas has been found in any 'coal 1 See, upon the repealed Act, 18&19 Homfray, L. K. 3 Q. B. 771 : 9 B. & B. Viet. c. 108, ss. 4, 11, Knowles v. 492. Dickinson, 2 E. & E. 705. 3 Coal Mines Act, s. 51 (2), (3). 2 See, upon the repealed Act, 23 & 4 S. 51 (7). 21 Vict. c. 151. s. 10, r. 1, Brough v. 590 REGULATION ACTS — PROVISIONS [CHAP. XXIV. Restrictions as to explosive or inflammable substances. Exemptions from restric- tions. mine/ a barometer and thermometer must be placed above ground in a conspicuous position near the entrance. 1 The use in the underground part of any ' mine ' governed by either Act of gunpowder or other explosive or inflammable substance is only allowed under the following conditions : — It must not be stored in the ' mine.' It must not be taken into the ' mine/ except in a case or canister containing not more than four pounds. A workman must not have in use at one time in any one place more than one of such cases or canisters. In charging holes for blasting (except in the case of such ' metalliferous mines ' as may be excepted by the Secretary of State), an iron or steel pricker must not be used, and must not be in any person's possession ; and an iron or steel tamping rod or stemmer must not be used for ramming either the wadding or the first part of the tamping or stemming on the powder. And a charge of powder, which has missed fire, must not be unrammed. 2 And the use of the like substance in the under- ground part of any 'coal mine' is subject to the following further restrictions': — (1) It must be contained in cartridges. (2) During three months after inflammable gas has been found a competent person must, immediately before firing the shot, examine the place where it is to be used, and the contiguous places, and must not allow the firing unless he finds it safe ; and a shot must not be fired except under his direction. (3) During the like three months, if the gas issued so freely that it showed a blue cap on the flame of the safety-lamp, it must only be used either (a) in those cases of stone drifts, stone work, and sinking of shafts, in which the return air from the place of use passes into the main return air course without passing any place in course of working; or (6) where the persons employed are out of the place of use. And (4), where a mine is divided into separate panels, having each an independent intake and return airway from the main air courses, the provisions respect- ing the substance in question apply to each panel, as if it were a separate mine. 3 However, a stratified ironstone mine in the lias formation, 1 S. 51 (26). 2 S. 51 (8) ; Met. Mines Act. s. 23 (2). 3 Coal Mines Act, s. 51 (8). See further, as to explosive substances, post, p. 598. PART A, SECT. 6.] AGAINST ACCIDENTS. 591 may, on the application of the 'owner,' 'agent,' or manager, be exempted by a Secretary of State from the first of the further restrictions, which would otherwise apply to it as a ' coal mine' And a slate mine may in like manner be exempted from the conditions, which would otherwise apply to it as a ' metalliferous mine.' But every such application must be transmitted to the district inspector, and the requirements l as to the posting of proposed special rules apply thereto. And the Secretary of State may at any time revoke the exemption, upon causing twenty-four hours' notice thereof to be posted up at the mine. And the district inspector must, in his annual report, 2 set forth a list of the exemptions so granted or revoked. 3 Where there is likely to be a dangerous accumulation of water Water and in a ' coal mine,' the working approaching the place of danger must not exceed eight feet in width ; and there must be con- stantly kept, at not less than five yards in advance, one bore- hole near the centre of the working, and flank bore-holes on each side. 4 A station or stations must be appointed at the entrance to Stations— every 'coal mine,' or to different parts, as the case may require; an j re i beyond which workmen are prohibited from passing, until the aJlu ' sslon of mine or part in question has been inspected, and stated to be safe. 5 If at any time it is found by the person in charge, that, by reason of any cause whatever, the mine or part in question is dangerous, every workman must be withdrawn ; and a competent person must make an inspection (and with a locked safety-lamp, if the danger arises from inflammable gas), and must make a true report ; and workmen must not, except to inquire into or remove the cause of danger, or to explore, be readmitted into the mine or such part, until the same is stated by the report not to be dangerous. Every report must be recorded in a specified book, and signed by the person making it. 6 Every underground plane, on which persons travel, which is Man-lioles an i refuges. 1 Post, pp. 592—594. 4 Coal Mines Act, s. 51 (9). 2 Post, p. 605. 5 S. 51 (5). 3 See 44 & 45 Vict. c. 26, s. 2 (Strat. G S. 51 (fi). See, as to these provi- Ironst. Mines Gunp. Act. 1SS1) ; 45 sions, R. v. Spon Lane Colliery Co., Vict. c. 3, s. 2 (Slate Mines Gunp. Act, 3 Q. B. D. 673. 1882). 592 REGULATION ACTS — PROVISIONS [CHAP. XXIV. self-acting, or worked by an engine, windlass, or gin, must (if exceeding thirty yards in length) have proper means of signal- ling between the stopping places and the ends ; and (in every case) have, at intervals of not more than twenty yards, sufficient man-holes for refuge. Every road, on which persons travel underground, must, in the case of a ' coal mine,' where the load is drawn by a horse or other animal, have, at intervals of not more than fifty yards ; and in the case of a ' metalliferous mine,' where the produce in transit exceeds ten tons in any one hour over any part, and the load is drawn by a horse or other animal, have, at intervals of not more than one hundred yards ; sufficient spaces for refuge. Each space must be of sufficient length, and of at least three feet in width between the waggons and the side ; and in the case of a ' metalliferous mine ' the Secretary of State may require the inspector to certify whether the produce in transit does or does not exceed the specified weight. Eveiy man- hole and space for refuge must be constantly kept clear, and access thereto kept open. 1 b. Special Rides. 2 'Coal mines' The establishment in every 'coal mine' of such special rules fr 6D6ri\lIv (in addition to the general rules), as under the particular cir- cumstances of the case appear best calculated to prevent acci- dents and to provide for proper discipline, is by the Coal Mines Act rendered compulsory. These rules are in the first instance framed by the ' owner,' ' agent,' or manager. They are then posted up in legible characters, in some convenient place at or near the mine ; and a printed notice is posted up with them, stating, that any objection to them by any of the persons employed may be sent to the district inspector ; whose address is given. After an interval of not less than two weeks, and of less than three months after the commencement (if commenced subsequently to the commencement of the Act 3 ) of any working to which they relate> they are required to be transmitted to 1 Coal Mines Act, s. 51 (10). (11). special rules in existence at the com- (12) ; Met. Mines Act, s. 23 (3). (4). mencement of the Coal Mines Act. see (5). s. 7."- of the Act. 2 So called in the Acts. As to 3 See Coal Mines Act, s. 2. PAItT A, SECT. 6.] AGAINST ACCIDENTS. 593 the district inspector for approval by the Secretary of State ; accompanied by a certificate of the posting up signed by the sender. If they are not objected to within forty days, tin v become established. 1 If they are objected to, modifications may within that time be proposed therein; and, if the 'owner,' 'agent,' or manager does not within twenty days object to the modifications, the rules, with the modifications, become established. But if an objection is sent in within twenty days, the matter is referable to arbitration, and the rules become established as settled by the award; the date of the receipt of the objection being deemed to be the date of the reference. 2 Special rules, when established, must be signed by the district inspector. 3 Special rules may be amended or added to at the instance either of the 'owner,' 'agent,' or manager, or of the Secretary of State ; similar proceedings, as nearly as possible, taking place before the amended or new rules become established, to those which take place before the original rules become established. 1 The 'owner' or 'agent' of any 'metalliferous mine' ma} 7 , if ' Metalliferous he thinks fit, transmit to the district inspector proposed special generally. rules of a similar kind, accompanied by a similar certificate ; previously posting them up in a similar manner, for a similar interval, and with a similar printed notice. 5 And these rules become established, or become established with modifications, in a similar manner. And they may be amended or added to in a similar manner at the instance of the owner or agent. 7 The Secretary of State may, moreover, propose special rules to the 'owner' or ' agent ' of a 'metalliferous mine,' in which there are no special rules ; and, where there are special rules, he may propose amendments or additions. And the provisions with respect to a proposal for modifying the special rules trans- mitted by an ' owner ' or ' agent ' apply, as nearly as may be, to such proposed special rules, amendments, and additions. 8 If the ' owner,' ' agent,' or manager, or the ' owner ' or ' agent ' Fa,sc st;lt °- ° ° ments— neglect 1 Ss. 52, 53. 3 Met. Mines Act. ss. 24, 25. - S. 54. As to arbitrations, see G Ss. 25, 20. pout, pp. GOO, 601. ' S. 27. 3 Coal Mines Act, s. 52. * lb. * S. 55. Q Q 594 REGULATION ACTS — PROVISIONS [CHAP. XXIV. oftransmis- (as the case may be), makes any false statement with respect sion — defacing ... .. n ,, , , ... ., notices, &c. to the posting up of the rules and notices, he is guilty of an offence against the Act in question. 1 And if special rules are not transmitted to the inspector within the time limited by the Coal Mines Act, the ' owner,' ' agent,' and manager are each guilty of an offence, unless he proves that he had taken all reasonable means to secure the transmission. Any person, who pulls down, injures, or defaces any proposed special rules, or any notice which may have been posted up, is guilty of an offence against the Act in question. 3 Certified copy A copy of special rules must, if required, be certified by an is evidence. . , .„,.... „ , , inspector ; and a copy so certified is evidence of the rules. 4 statutory force All special rules when established must be observed as if they of special rules . . . . •—offences. were enacted in the Acts ; and non-observance by any person is an offence against the Act in question. And the ' owner,' ' agent,' and manager, or the ' owner ' and ' agent ' (as the case may be), are each also guilty of an offence, unless he proves that he had taken all reasonable means to prevent such non-observance. 5 Under this provision a miner may be con- victed, although a special rule of the mine in question provides that he shall receive a cojry of the special rules, and although there is no evidence that he has received it. G And the agent of a ' coal mine ' may be convicted thereunder, although the mine is under the control of a duly certified manager. 7 Howells v. Special rules in force in a ' coal mine,' provided that the Wynne — Higham r. chartermaster should be the responsible manager of the pit ; and that the banksman or hooker-on should take care that the persons descending should in no case exceed eight. The banks- man violated the rule by lowering more than eight persons into the pit at one time ; and there was evidence, that the chartermaster was close to the pit, and cognizant of the banks- 1 Coal Mines Act, s. 5G ; Met. Mines the Coal Mines Act require the use of Act, s. 25. locked safety-lamps, the same provi- 2 Coal Mines Act, s. 56. sions apply as those which apply to 3 S. 58 ; Met. Mines Act, s. 29. locked safety-lamps under the general 4 Coal Mines Act, s. 59 ; Met. Mines rules : see Coal Mines Act, s. 51 (7) ; Act, s. 30. ante, p. 589. 5 Coal Mines Act, s. 52 ; Met. Mines G Higginson r. Hapley, 19 L. T. N. Act, s. 24. See also Coal Mines Act, S. 690. s. 51 (28). Where special rules under < Wynne r. Forrester, 5 C. P. D. 361 Wright. TART A, SECT. 0.] AGAINST ACCIDENTS. .V,i.-, man's act. The banksman was the servant of the charter- master. It was held, that the char term aster might be convicted of aiding and abetting the banksman to commit a violation of the rule. 1 A special rule in force in a 'coal mine' provided that no person ' employed in or about the works ' should ascend the pit contrary to the direction of the hooker-on. The work- men employed in the mine had power to dismiss themselves at a moment's notice ; and certain of them dismissed themselves accordingly. They then asked the hooker-on to allow them to ascend the pit; but he refused to do so until the ordinary time came fur workmen to quit the mine. They then ascended contrary to his direction. It was held, that they had been guilty of a breach of the rule. 2 c. Other Causes of Danger. (a) Generally. An inspector may give notice in writing to the ' owner/ Notice by ' agent,' or manager of any cause of danger not provided for by c auses f express provisions or special rules/' stating the particulars, and '^"S 01 '. 1101 r i r o i otherwise pro- requiring the same to be remedied ; and, unless the same be vided for, forthwith remedied, the inspector must report the same to -the Secretary of State. If the ' owner,' ' agent,' or manager objects to remedy the matter in question, he may within twenty days state his objection in writing to the Secretary of State ; and thereupon the matter is determinable by arbitration, the date of the receipt of the objection being deemed to be the date of the reference. 1 If the 'owner,' 'agent,' or manager fails within twenty days to comply either with the requisition of the notice, where no objection is sent in, or with the award made on arbi- tration, he is guilty of an offence against the Act in question. But the Court, if satisfied that he has taken active measures for compliance, may adjourn any proceedings for punishment; 1 Howclls r. Wynne, 15 C. B. X. S. were defined by special rules, see 3 ; a decision on the repealed Act 23 & Nimmo v. Clark, 10 Sess. Cas. (3rd 24 Vict. c. 151. ser.) 477 ; a Sc. decision under the rep. 2 Higham r. Wright. 2 C. P. D.397. Act 23 & 21 Viet. c. 151. As to liability fur the non-employment 3 Ante, pp. 585. et seq. : p. 592. of a particular person whose duties 4 See post, 600, 601. Q Q 2 596 REGULATION ACTS— PROVISIONS [CHAP. XXIV. and. it the works are completed within a reasonable time, no penalty can be inflicted Agreements inconsistent with servance of those provisions are void. 1 K -. Spon The owners of a ' eoal mine ' were convicted under these pro- Lane Co. . . ' visions, lhe mine contained a perpendicular pit shaft at the same level as. and communicating with, a similar shaft in an adjoining mine, which did not belong- to the owners of the mine in question. The district inspector gave notice to the owners, that an accumulation of water existed near to and in con- nexion with their mining works, which was dangerous, and tended to the bodily injury oIl the workmen employed; and he required them ' forthwith to remedy the matter.' The accumu- lation of water was in the pit shaft of the adjoining mine, and the owners of the mine in question had no power to interfere with the water ; but it was shown, that, after the receipt of the notice, they did not remove the men at work in their own pit shaft and mine. It was held, that the conviction was wrong. 3 It was considered, that the provisions in question did not enable the inspector to give notice in eases where the source of danger was beyond the control of the occupiers of the mine; and that the only remedy was under the provisions as to the withdrawal of workmen in eases of danger." {,3) Single Shaft*. Prohibitions The employment of persons in a ' coal mine ' is in general a ' angle . .. . , , . . . ° shafts. prohibited, unless there are in communication with every seam at work at least two shafts or outlets, separated by natural strata of not less than ten feet in breadth, by which distinct means oi ingress and egress are available (whether such two shafts or outlets belong to the same mine, or one or more of them to another mine 1 : and unless there is a communication of not less than four feet wide and three feet high between such shafts or outlets ; and unless there is at each of them, or upon the works, proper apparatus for raising and lowering persons at 1 Coal Mines Act. >. 16 : Met. Mines M. C. 25 : per Cockbnm, C. J„ and Aor - 5 - l & .Mellor. J.. Lush. J., dissenting, ; K. r. Spon Lane Co.. 3 Q. B. P. 673 ; 3 See ante, p. 591, nom. Spon Lane Co. t. Baker. -IS L. J. PA1JT A, SECT. H.j . K€fl each of them. But the .separation is not deemed incomplete by reason only that openings through the strata have been made for temporary purposes of ventilation, drainage, or otl wise ; or, where inflammable gas Las not been found within twelve months, for the same purposes, although not temporary. 1 Agreements in contravention of the prohibition are void. 2 However the above general prohibition does not apply in the g either of opening a new mine to search for or prove f ™ m i' rohlbl * minerals, or of any working for the purpose of making a com- munication between two or more shaft-, so long as not more than twenty person- are employed below ground at anyone time. Nor does it apply in the case of any proved mine, (1; so long it is exempted by the Secretary of State on the ground either (a i that the quantity of mineral proved is not sufficient to repay the requisite outlay: or, (6) if the mine is not a coal mine, or mine with inflammable gas, that sufficient provision has been made against danger from other causes than explosions; or. that the workings in any -earn have reached the boundary., and that it is expedient to work away the pillars already formed, notwithstanding that one of the shafts or outlets maybe thereby cut off: and (2) so long as there are not employed below ground at any one time more than twenty persons, or 'if the min< not a coal mine, or mine with inflammable gas) than such larger number as may be allowed by the Secretary of State. Nor does it apply in the case of any mine, one of the shafts or outlets of which has become, by reason of some accident, unavailable for use, so long as the mine is exempted by the Secretary of State, and the conditions of the exemption are observed. 3 Every 'owner,' 'agent,' and manager, who fails to observe t: prohibition in question, is guilty of an offence against the Coal ' 1D =""' Mines Act. And (without prejudice to any other remedy for enforcing the Act; the High Court, whether any other pro- ceedings have or have not been taken, may, upon the applica- tion of the Attorney-General, prohibit by injunction the working 1 See Coal nines Act, -. 2". exhausted, and extending the time f"r - -.21. other mines (s. 24) ; but the^e provi- a See s. 21. The Act - ns can hardly now be of practical provisions exempting certain mine*. importai on the ground of their being uearlv REGULATION ACTS — PROVISIONS [ciIAP. XXIV. of any mine, in which any person is employed in contravention of the prohibition; and may award such costs as it thinks just. But not less than ten days' notice in writing of the intention to apply for such injunction must be given to the ' owner/ ' agent,' or manager. 1 (y) Explosive Substances. Where a magazine or store is established by the ' owner ' for the purpose of any mine governed by either Act, the Secretary of State may direct an inspector under either Act to act with respect to such magazine or store as a government inspector under the Explosives Act, 187-v and may revoke any such order. And such inspector, while such order is in force, has for that purpose the same powers and authorities as he has under the Coal Mines Act, and the Met. Mines Act, and also the powers and authorities of a government inspector under the Explosives Act, 1875.' (6) Ft noing of Abandoned Mines. Where any mine governed by cither Act is abandoned, or the working discontinued, at whatever time such abandonment or discontinuance occurred, the ' owner,' and ' every other person interested in the minerals,' must cause the top of the 'shaft,' and any side entrance from the surface, to be and be kept securely fenced for the prevention of accidents. But (subject to any contract to the contrary) the ' owner ' is, as between himself and any other such person, liable to carry, and to pay auy costs incurred by any other such person in carrying, this provision into effect. And the provision does not exempt any person from liability under any other Act or otherwise. 4 As the provision applies, " at whatever time the abandonment or discontinuance occurred," it is not confined to mines abandoned or discontinued since the Act in question came into operation. 5 1 Sec ?. 20. 2 38 & 39 Vict. c. 17. :! S. 59. See further, as to explosive substances, ante, p. 590. 1 Coal Mines Act. s. 41 ; Met, Mines Act. s. 13. 5 Sec Stott v. Dickinson, 34 L. T. 291, The law as regulated by the repealed Act, 23 & 21 Vict. c. 151, s. 21. did not apply to mines aban- doned before the passing thereof : sec R, v, Gratrex, 12 Cox C. C. l.~>7. PART A, SECT. 6.] AGAINST ACCIDENTS. 5gg Where, however, in the case of a mine governed by the Met. Mines Act, the abandonment or discontinuance occurred before the passing of that Act, the provision applies only to such 'shaft' or side entrance of the mine as is situate within fifty yards of a highway, road, footpath, or place of public resort, or in open or uninclosed land ; or is required by an inspector to be fenced, on the ground that it is specially dangerous. 1 Non- observance of the provision is an offence against the Act in question. 2 A person, who has been the lessee of a ' coal mine,' but whose Stott d, lease has determined by lapse of time, is not an 'owner' within Arkwrighttv the Coal Mines Act; and is not therefore amenable to this 5 vans_ provision. 3 And a lessee under the Duchy of Lancaster of a lead Mostyn. mine, and of the duties arising therefrom, who holds subject to the Derbyshire custom ; * and who is bound by his lease to pay to the Duchy by way of rent all he might annually receive in respect of the mine, and an additional rent of five shillings ; is neither an ' owner,' nor a ' person interested in the minerals ' within the Met. Mines Act. For he has no pecuniary interest either in the mine or the minerals. 5 Persons, who were the owners in fee of a ' metalliferous mine,' demised it for a term of years. Royalties were reserved ; and were made payable upon the place where the ore should be gotten and weighed, and before it should be taken away. Powers of distress and entry, if the royalties should be in arrear, were also reserved. While the lease was still in force the lessees ceased working, and allowed the mine to remain insufficiently fenced. It was held, that the owners in fee, although not ' owners ' within the Met. Mines Act, were ' other persons interested in the minerals,' and were guilty of an offence accordingly. 6 It was laid down in the same case, that the words ' other persons interested in the minerals ' referred to persons having a present interest ; and did not refer to persons having a remote interest, or an interest arising merely from contract ; and that they did not refer to trustees or cestuis que trust. 1 Met. Mines Act, a. 13, 4 See ante, pp. 500, ct se<[. - Coal Mines Act,s. 41 ; Met. Mines 5 Arkwright v. Evans. 4 ( J L. J. M. Ct Act. s. 13. 82. 3 Stott v, Dickinson, u, t, 6 Evans v. Mostyu, 2 C. P. D. 517. 000 REGULATION ACTS — ARBITRATION — [ciIAr. XXH . Nnis. Rem. Act, 1855. In addition to the above provision, any 'shaft' or side entrance, which is not fenced as required, and is within fifty yards of any highway, road, footpath, or place of public resort; or is in open or uninclosed land, is a nuisance within sect. 8 of the Nuisances Removal Act, 1855, as amended by the Sanitary Act, 1S0G. 1 Parties I arbitration. Arbitrators and their appointment. Umpire ami his appoint- ment. Sect. 7.— ARBITRATION. The 'owner,' 'agent,' or manager of a 'coal mine,' or the ' owner ' or ' agent ' of a ' metalliferous mine,' on the one hand ; and the inspector (on behalf of the Secretary of State), on the other hand ; are the parties to an arbitration. The death or removal of, or other change in, any party does not affect the proceedings Each of the parties may within twenty-one days after the reference appoint an arbitrator. The appointment must be in writing, and notice must be forthwith sent to the other party, and the appointment is irrevocable without his consent. If within the twenty-one days either party fails to appoint, the arbitrator appointed by the other may determine the matter in difference. If before the award any arbitrator dies, or becomes incapable to act, or for fourteen days refuses or neglects to act, his appointor may appoint a substitute ; and if he fail- to do so within fourteen days after notice from the other party, the remaining arbitrator may determine the matters in differ- ence. However, in either of the foregoing cases, the party failing to appoint may, before the single arbitrator has actually proceeded, appoint an arbitrator, who may then act as if no failure had been made. It' a single arbitrator fails to make his award within twenty-one days, his appointor may appoint another arbitrator in his place. 3 If the arbitrators fail to make their award within twenty-one days, or within such extended time as they may have appointed, the matter in difference is determinable by their umpire. The 1 Coal Mine- Act. b. 41 : Met. Mines Act. -. 13. See farther, as to fencings, ante, pp. 586, 537. : Coal Mine- Act. s. 49 ; Met. Mine, Act, s. 21. 3 //,. PART A, SECT. 8.] ACCIDENTS AND INQUESTS. G01 arbitrators must, before they enter upon the arbitration, appoint an umpire by writing 1 . If the umpire dies or becomes incapable to act, or refuses to make his award, the arbitrators must forthwith appoint another umpire ; and on refusing, or failing, or for seven days after request neglecting, to do so, an umpire may, uii the application of either party, be appointed by the Chairman of the district General or Quarter Sessions. 1 No person can act as arbitrator or umpire who is employed Qualifications . , - • . i ■ . i of arbitrator.-, in or in the management ot, or is interested in, the nunc an( j umpire. in question. And every person who is appointed must be a practical mining engineer, or a person accustomed to the working of mines ; but, when an award has been once made, the arbitrator or umpire is deemed to have been qualified. 2 The arbitrators and their umpire, or any of them, may Proceedings— .... ill remuneration examine the parties and their witnesses on oath ; and tney —costs. may consult any counsel, engineer, or scientific person. The remuneration of the arbitrators or the umpire must be fixed by the Secretary of State ; and, with the costs, must be paid as the award may direct. The costs may be taxed by a Master of the High Court. The amount (if any) payable by the Secretary of State is payable as part of the expenses of inspectors under the Acts. The amount (if any) payable by the 'owner' 'agent' or manager, or by the ' owner ' or 'agent ' (as the case may be), is recoverable in the same manner as penalties under the Acts. 3 Skct. 8.— ACCIDENTS AND IXol'ESTS. Where in or about any mine to which either Act applies, Accidents, either above or below ground, either loss of life or personal injury to any person employed occurs by reason of any explosion of gas, or powder, or of any steam boiler; or loss of life or serious personal injury to any such person occurs by reason of any accident Whatever; the 'owner,' 'agent,' or manager, or the ' owner ' or ' agent ' (as the case may be), must within twenty- four hours notify the facts to the district inspector ; specifying the character of the explosion or accident, and the number of > lb. - lh. 3 //<. 602 REGULATION ACTS — ACCIDENTS AND INQUESTS — [dlAr. XXIV. persons killed and injured. And where any such personal injury- results in death, he must notify the death to the inspector within twenty-four hours after it comes to his knowledge. Non-observance of these provisions is an offence against the Act in question. 1 Inquests. Where a coroner holds an inquest upon the body of any person, whose death may have been caused by any explosion or accident in a mine governed by either Act, of which notice should be given, the coroner must adjourn the inquest, unless an inspector, or some person on behalf of the Secretary of State, is present. And he must give to the district inspector at least four days' notice in writing of the time and place of holding the adjourned inquest. If, however, the explosion or accident has not occasioned the death of more than one person, and the coroner has given to the district inspector not less than forty- eight hours' notice of the time and place of holding the inquest, he need not adjourn, if the majority of the jury think that course unnecessary. And, in any case, before an adjournment, he make take evidence to identify the body, and may order the interment. An inspector may at any inquest examine a witness, subject to the order of the coroner. Where evidence is given at an inquest at which an inspector is not present of any neglect as having caused or contributed to the explosion or accident, or of any defect appearing to the coroner or jury to require a remedy, the coroner must give notice to the district inspector of such neglect or default. Any person having a personal interest in, or employed in or in the management of, the mine in question, is disqualified from serving on the jury. Non- observance of these provisions is an offence against the Act in question. 2 1 Coal Mines Act, s. 89 ; Met. Mines after such loss of life ' : see the conse- Act, s. 11. As to the disposition of the quent decision thereon of Undcrhill /•. consequent penalties, sec ante, p. ."374. Longridge, 29 L. J. M. C. 65. The repealed Act, 18 & 19 A T ict. c. 108, - Coal Mines Act, s. 50 ; Met. Mines s. 9, only provided for sending the Act, s. 22. notice 'within twenty-four hours next PART A, SECT. L).] NOTICES OF OPENINGS, ABANDONMENTS, ETC. G03 Sect. 9.— NOTICES OF OPENINGS, ABANDONMENTS, AND CHANGES— PLANS.— RETURNS AND REPORTS. (a) Notices of Openings, Abandonments, and Changes. — Plans. Where any working is commenced for the purpose of opening Notices of a new ' shaft ' for any mine governed by either Act ; or where °i )C,lin - ■-'< J ° J ' abandonments, a ' shaft ' of any such mine is abandoned, or the working dis- and changes. continued ; or where the working of a ' shaft' of any such mine is re-commenced after any abandonment or discontinuance for a period not exceeding two months ; or where any change occurs in the name of, or in the name of the 'owner,' 'agent,' or manager, or the ' owner ' or ■ agent ' (as the case may be), of any such mine, or in the officers of any incorporated company which is the owner of any such mine ; the ' owner,' ' agent,' or manager, or the 'owner' or 'agent' (as the case may be), must give notice to the district inspector within two months ; and, in default, is guilty of an offence against the Act in question. But, in the case of a ' metalliferous mine,' these provisions apply only where more than twelve persons are ordinarily employed below ground ; and, in the case of a partnership working such a mine within the Stannaries, if notice of every change in the purser is sent, notice of a change in the members need not be sent. 1 Where any 'coal mine;' or any 'metalliferous mine,' in which Plans. more than twelve persons have ordinarily been employed below ground ; is abandoned, the owner at the time of the abandon- ment must within three months send to the Secretary of State an accurate plan, showing the boundaries of the workings up to the time of the abandonment ; and, in default, is guilty of an offence against the Act in question. But no person, except an inspector, is entitled, without the consent of the ' owner,' to see the plan of a ' coal mine,' or, without the license of the Secre- tary of State, to inspect or copy the plan of a ' metalliferous mine,' until after the lapse of ten years from the abandonment 1 Coal Mines Act. 9, 40 ; Met. Mines Act. s. 12, .See ante, p. 4 19. 001- REGULATION ACTS— RETURN'S AND REPORTS — [ciIAP. XXIV. of the ' coal mine/ or ten years from the receipt of the plan of the ' metalliferous mine.' J (/3) Returns and Reports. Returns as to On or before the 1st of February in every year the ' owner,' quantity of ( , J J J mineral, agent, or manager, or the ' owner,' or 'agent ' (as the case may number of persons em be), must send to the district inspector a correct return, specify- ployed, &c. i ng with respect to the year ending on the preceding 31st of December, in the case of a ' coal mine,' the quantity of mineral wrought ; and, in the case of a ' metalliferous mine,' the quantity in statute weight of the mineral dressed, and of the undressed mineral which has been sold, treated, or used ; and, in. each case, the number of persons ordinarily employed below and above ground, distinguishing the persons employed below and above, and the classes and ages of the persons so employed, whose hours of labour are regulated by the Act in question. And every person who makes default is guilty of an offeuce against the Act. However, in any ' metalliferous mine,' where not more than twelve persons arc employed underground, the returns as to the quantity of mineral must be made by the Barmaster or other officer (if any) employed to collect the dues or royalty ; and, where there is such a Barmaster or other officer, the 'owner' or 'agent' need not send any return as to the number of persons employed. In the case of ' coal mines,' the aggregate results of the returns with respect to a particular county or district, or any large portion thereof, may be pub- lished ; but the individual return cannot be either published or seen except with the consent of the person making it, or of the ' owner.' Forms of returns may be obtained from the district inspector. 2 Other returns. And the ' owner,' occupier, or manager of every 'coalmine' must, on the 1st of January in every year, and at any other time when required by the Secretary of State, send to the district inspector a return specifying the average number of persons employed daily, above and below ground ; the mode of 1 Coal Mines Act. s. 42 ; Met. Mines Act. s. 10 ; 38 & 39 Vict. c. 30 (Met. Act. s. 14. Mines Reg. Act. 1875). As to Bar- - Coal Mine- Act. s. 38 ; Met. Mines masters, see ante, pp. 503. 501. PART A, SECT. 10.] PUBLICATION OF ACTS AND SPECIAL RULES. 005 ventilation ; the furnace or fan used ; the diameter and depth of the downcast and upcast shafts ; the number of splits and the quantity in cubic feet per minute ; the average length of the airways ; the sectional area of the airways ; and the average total quantity of fresh air in cubic feet per minute. 1 Inspectors under either Act must make annual reports of their Report:- of proceedings to the Secretary of State; to be laid before both 1 " 1 '" Houses of Parliament. 2 The report under the Coal Mines Act must contain the name of every teacher disqualified for granting certificates of attendance of boys at school, and the name of the school at which he taught ; for communication to the Committee of Council on Education. 3 The Secretary of State may also direct inspectors to make special reports as to accidents which have caused loss of life or personal injury ; which may be made public at such time and in such manner as he thinks expedient. 1 Boards for appointing examiners for granting certificates of Reports of competency to managers under the Coal Mines Act must make b^iTand a report and return of their proceedings to the Secretary of Courtsof i inquiry. State, and of such other matters as he may from time to time require. 5 And courts of inquiry into the competency of managers must, upon the conclusion of the inquiries, send full reports to the Secretary of State. Sect. 10.— PUBLICATION OJ ACTS AND SPECIAL PULES. For the purpose of making known the Act in question and Publication. the special rules (if any) 7 to all persons employed, the ' owner,' ' agent,' or manager, or the ' owner ' or ' agent ' (as the case may be), must cause an abstract of the Act (which is obtainable from the district inspector) ; and a copy of the special rules (if any); with the name and address of the district inspector, and the name of the ' owner ' or ' agent,' and of the manager, or of 1 Coal Mines Act, s. G9 ; sch. 4. Sec 4 S. 4S ; Met. Mines Act, s. 2d. sch. 4 for the form of the return. 5 See s. 28. See ante, p. 577. 2 Coal Mines Act, s. 48 ; Met. Mines c S. 32. See a,tt<<, p. 577. Act. s. 20. 7 Special rules do not necessarily 3 Coal Mines Act, s. 10. See ante. exist in the case of a 'metalliferous p. 581. mine :' ante. p. 593. GOG FACTORY AND fciiAr. XXIY. Defacing abstract or rules. the ' owner ' or ' agent ' (as the case may be), appended thereto ; to be posted up in legible characters, in some conspicuous place at or near the mine. And, as often as the same become defaced, obliterated, or destroyed, he must cause them to be renewed. And he must supply a printed copy of the abstract and the special rules (if any) gratis to each person employed, who applies at the office at which the persons employed are paid. In the event, in the case of a ( coal mine,' of non-com- pliance with these provisions by any person whomsoever, the ' owner,' ' agent,' and manager are each guilty of an offence against the Coal Mines Act, unless he proves that he had taken all reasonable means to prevent the non-compliance. 1 And if, in the case of a ' metalliferous mine,' the owner or agent fails to comply therewith, he is guilty of an offence against the Met. Mines Act, unless he proves that he had taken all reasonable means to prevent the non-compliance. 2 Any person who pulls down, injures, or defaces any notice, abstract, or special rules, when posted up in pursuance of the Acts, is guilty of an offence against the Act in question. 3 PART B.— OTHER ACTS, (a) Factory and Workshop Acts. Statutory Under the Factory and Works. Act, 1878, 4 a 'non-textile 'non-textile factory' includes (1) w T orks for making earthenware, except ^woiSlop!' 1 bricks and tiles > not bein S' ornamental tiles : (2) blast or other furnaces or premises, where the process of smelting or other- wise obtaining any metal from the ores is carried on : (3) copper mills : (4) mills or premises, where any process is carried on for converting iron into malleable iron, steel, or tin plate, or for otherwise making or converting steel; and (5) iron foundries, copper foundries, brass foundries, and other premises, where the process of founding or casting metal is carried on, except where 1 Coal Mines Act, s. 57. - Met. Mines Act, s. 23. 3 Coal Mines Act, s. 58 : Met. Mine- Act. 29. 4 41 Vict. c. Ifi. TART B.] WORKSHOP ACTS. f,07 such process is carried on by not more than five persons, and as subsidiary to the repair and completion of some other work. 1 And a 'workshop' includes (1) "quarries, that is to say, any place, not being a mine, in which persons work in getting- slate, stone, coprolites, or other minerals;" and (2) "pit-banks, that is to say, any place above ground adjacent to the shaft of a mine, in which place the employment of women is not regulated by the Coal Mines Reg. Act, 1872, or the Met. Mines Reg. Act, 1872, whether such j:»lace does or does not form part of the mine within the meaning of those Acts." 2 The Factory and Works. Act, 1878, makes unlawful the Provisions employment of girls under the age of sixteen years in the mak- of ing or finishing of bricks or tiles, not being ornamental tiles ; or in the making or finishing of salt. 3 And it makes unlawful the taking of meals by ' children,' ' young persons,' or ' women,' in those portions of earthenware works known as the 'dippers' house,' ' dippers' drying room,' and the ' china scouring room/ l But many of its provisions as to meal hours do not, in the case of 'children,' 'young persons,' and 'women,' apply to blast. ■ furnaces or iron mills. 5 And the provisions of the Fact, and Works. Acts, 1878 and 1883, as to 'young persons' and ' women ' working overtime do not apply to premises, where the making or finishing of bricks or tiles, not being ornamental tiles, is carried on. G And the provisions of the former Act as to the employment of 'children,' 'young persons/ and 'women,' for an additional half-hour do not apply to iron mills, where male 'young persons' are not employed during any part of the night. 7 And its provisions as to the employment of male 'young persons ' during the night do not apply to blast furnaces or iron mills. 8 i S. 93; sch. 4, part 1. s S. 38 j sch. 1. - S. 93 ; sch. 4, part 2. As to the ' S. 39 : sch. 2. Regulation Acts, see ante, pp. 569, 5 Sch. 3, part 2. 570, 579, ct seq. The Factory Act. 6 S. 53 : sch. 3, part 3 ; 40 & 17 30 k. 31 Vict. c. 103 (repealed), did not Vict. c. 53, s. 13. apply to slate quarries worked in the " 41 Vict. c. 16, s. 54 ; sch. 3, pan I. open air (Kent v. Astley, L. R. 5 Q. 8 S. 58; sch. 3. part 0. As to the B. 19), or to works in the open air for statutory meanings of •child.* 'young the manufacture of cement from chalk person.' and ' woman,' see s. 96. and mud (Redgrave v. Lee, 9 it. 363). 60S TRUCK ACT. [CHAP* XXIV. meanings of ' artificer ' and ' employer. 1 (/3) Truck Avt. 1 Application of The Truck Act applies to persons employed in or about the Act— statutory ma k m o- casting, convertino;, or manufacturing of iron or steel, or any parts, branches, or processes thereof; or in or about the working or getting of any mines of coal, ironstone, lime- stone, or salt rock ; or in or about the working or getting of stone, slate, or clay; or in the making or preparing of salt, bricks, tiles, or quarries; or in or about the making or otherwise preparing of any porcelain, china, or earthenware, or any parts, branches, or processes thereof.- The word ' artificers ' means all workmen, labourers, and other persons employed in or about the trades and occupations specified in the Act. And the word ' employers ' means all masters, bailiffs, foremen, managers, clerks, and other persons engaged in the hiring, employment, or superintendence of the labour of any such artificers. 3 In contracts for the hiring of ' artificers ' wages must be made payable in the current coin of the realm or in bank-notes ; and must not contain any stipulation as to the manner of expending them. And wages must be paid in coin or bank- notes; and wages not so paid may be recovered. And in an action for wages no set-off is allowed for goods supplied by the ' employer;' and no 'employer' has any right of action against his ' artificer ' for goods supplied on account of wages. And if the ' artificer,' or his wife or children become chargeable to the parish, the overseers may recover any wages earned within three months, and not paid in coin or bank-notes. But these provisions do not invalidate the payment of wages in drafts payable to bearer on demand, if the 'artificer' consents. 4 An ' employer,' who enters into contracts or makes payments declared illegal by the Act, is liable to penalties. 5 Where a person contracts to load ironstone at so much per ton, but without any stipulation for his own personal labour; and he employs men to do the work under him, and from time Payment of wages in coin. Decisions as to ' artificer i 1 & 2 Will. 4, c. 37. ■ S. 19. 3 S. 2,-). * Ss. 1 to 8. inclusive. 5 S. 9. For proceedings for thoir recovery, see --. 10 to 18, inclusive; ss. 21, 22. PART B.] TRUCK ACT. $09 to time works personally; he is not an 'artificer.' 1 And where a labourer enters into a contract to make as many bricks as the employer requires, on the terms, that the employer shall find clay and all materials, and the labourer all the labour, and that the payment shall be 10s. Gd. per thousand ; and the labourer does part of' the work himself, and employs others to do the rest; he is not an 'artificer.' 2 But a collier employed to get coal from a mine at so much a ton, and having liberty to employ other men to assist him, is an ' artificer,' if by his contract he is bound to give his personal labour in the per- formance of the work. 3 'Butty colliers,' 4 who are bound to work personally, and who do so work, are ' artificers.' ° But ' butty colliers,' who bind themselves not for mere labour, but for the result of labour, are not ' artificers.' 6 It is questionable whether a labourer, who is employed to make a cutting on a railway, and who for that purpose removes clay which is used for making bricks, is employed ' in or about the working or getting of clay ' within the Act. 7 As exceptions from the operation of the Act, it is provided Exceptions that an 'employer 'or his agent may supply, or contract to supply, to an ' artificer ' any medicine, or medical attendance, or any fuel, or any materials, tools, or implements for mining- purposes ; and may demise to him the whole or any part of any tenement at any rent to be thereon reserved; and may advance to him any money for contribution to a friendly society or savings' bank, or for his relief in sickness, or for the education of his children. And corresponding deductions may be made, or contracted to be made, from the wages of the ' artificer,' if they are not excessive in amount, and if the contract for them is in writing and signed by the ' artificer.' 8 In order to bring a contract for the supply of materials within the exceptions from the Act, it must be a contract of sale, and not a mere contract of hiring. 9 But the amount to be deducted in respect 1 Sharman v. Sanders, 13 C. B. 1G6. 5 Bowers v, Lovekin, 6 E. .t B. 58-1. Cf. Kiley v. Warden, 2 Exeh. 51). 6 Sleeman v. Barrett, 2 H. & C. 934. 2 Ingram v. Barnes, 7 E. & B. 115. 7 See Riley v. Warden. 2 Exch. 59. 3 Weaver v. Floyd, 21 L. J. Q. B. a See ss. 23 & 21. See Pillar v. 151. See also Ingram v. Barnes, u. s. Llynvi, &c., Co., L. R. 1 C. P. 752. 4 See ante, p. 520, n. 4 . ,J Cutts v. Ward, L. R. 2 Q. D. 357. E R 610 EMPLOYEES AND WORKMEN ACT. [CHAP. XXIV. of each head of deduction need not be specified in the contract. 1 And where a contract allowed a deduction for medicine and medical attendance ; and by the practice of the mine in question 6cl. a week was paid by each miner towards a club kept by the employer for the purpose of providing medicine and medical attendance for such miners as required them ; the employer was held entitled to deduct that amount. 2 (y) Employers and Workmen Act. Empl. and jf or the purposes of the Empl. and Workmen Act. 187-V u oik. Act, . # L 1S75. which regulates disputes between employers and workmen, ' workman ' includes any miner, whether under or above the age of twenty-one years, who has entered into or works under a contract with an employer, express or implied, oral or in Avriting, being a contract of service or a contract personally to execute any work or labour. 1 (6) Employers' Liability Act. ^einiS of For the P m "P oses of the Empl. Liability Act, 1880/ unless the 'employer,' context otherwise requires, the following words or expressions ' workman, . , &c have or include the following meanings : — ' Person who has superintendence entrusted to him ' means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour. 'Employer' includes a body of persons corporate or unincorporatc. And ' workman ' Wooden 'sprags' for propping up a tween mine owners and miners, are now mine were in the same ease held to be repealed : see 38 & 39 Vict. c. 8G. s. 17. • materials." The Act 57 Geo. 3. c. 122. extends the 1 Cutts v. Ward. L. It. 2 Q. 1>. 357. provisions of the Act 12 Geo. 1, c, 31, ' : Ih. Sec further, as to the Act. to Labourers in collieries ; and thereby Macdonell on Mast, and Serv., pp. 366, entitles them, upon non-payment of et seq. their wages, to obtain warrants from ;i 38 & 39 Vict. c. 'JO. the justices of the peace for levying 1 S. 10. See further, as to the Act, such wages by distress and sale of the Macdonell on Mast, and Serv., pp. 630, offenders' goods. As to frauds by et seq. The Acts 20 Geo. 2, c. 19 ; 6 persons engaged in iron manufac- Geo. 3, c. 25 ; and 4 Geo. 4, c. 34. with tures. see 1 Anne, St. 2, c. 22; 13 the Mast, and Serv. Act, 1867 (30 & 31 Geo. 2, c. 8 ; 22 Geo. 2, c. 27 ; and 17 Vict. c. 141), which formerly regulated Geo. 3, c. 56. disputes arising out of contracts he- ■"' 43 & 44 Vict, c. 42. PART IJi] EMPLOYEES* LIABILITY ACT. 611 means any person to whom the Empl. and Workmen Act, 1875, applies. 1 Where personal injury is caused to a ' workman ' by reason Remedy for pcr.S'UKil of any defect in the condition of the ways, works, machinery, injury. or plant connected with or used in the business of the ' employer,' such ' workman ;' or in case the injury results in death, his legal personal representatives, and any persons entitled in case: of death ; have the same right of compensation and remedies against the ' employer,' as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work. But a workman is not entitled to this right, unless the defect arose from, or had not been discovered or remedied owing to the negligence of the ' employer,' or of some person in his service, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition. 2 A similar right exists, where personal injury is caused by reason of the negligence of any ' person ' in the service of the ' employer,' who has any 'superintendence entrusted to him,' whilst in the exercise of such superintendence ; or by reason of the negligence of any person in the service of the ' employer,' to whose orders or directions the ' workman ' at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed. And a similar right exists, where personal injury is caused by reason of the act or omission of any person in the service of the ' employer ' done or made in obedience to the rules or bye-laws of the ' employer,' or in obedience to particular instructions o-iven by any person delegated with the authority of the ' employer.' But a ' workman ' is not entitled to the last- mentioned right, unless the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions in question ; and where a rule or bye-law has been approved, or accepted as a proper rule or bye-law, by a Secretary of State or the Board of Trade or any other Government department under any Act of Parliament, it is not an improper or defective rule or bye-law. Nor is a ' workman ' entitled to any of such rights, 1 S. S : see ante, p. 610. &C, Co., 10 Q. B. D. :>. - Ss. 1, 2. See McGiffin c. Palmer's. B B 2 612 employers' liability act. [chap. XXIV. Amount of compensation — procedure. Where Act not applicable. where he knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information to the ' employer,' or some person superior to himself in the service of the 'employer;' unless he was aware that the 'employer' or such superior already knew of such defect or neediorence. 1 O O However, the amount of compensation recoverable under the Act must not exceed the estimated earnings, during the three years preceding the injury, of a person in the same grade, in the like employment, and in the same district, 2 And an action is not maintainable unless notice of the injury be given within a prescribed time, and in a prescribed manner, 3 aud the action be commenced within a prescribed time. 1 And every action must be brought in a county court, 5 Notwithstanding the Act an employer is not liable for the negligence of a person who, although remaining his general servant, is, at the time of the accident in question, under the 1 Ss. 1. 2. - S. 3. 3 See ss. 4. 7. The notice must be in writing : Moyle r. Jenkins. 8 Q. B. D. 11G. 4 See ss. 4, 7. •' S. (I. This Act has made an impor- tant change in the law. Formerly, unless an employer was guilty of per- sonal negligence (Brydon /■. Stewart. 2 Macq.30; Griffiths v. Gidlow,3H.& N. 64S ; Senior r. Ward. 1 E. & E. 385 ; Ashworth r. Stanwix. 3 ib, 701 ; Mellors ,-. Shaw. 1 1!. & S. 137), he was free from all liability for the death of or injury to a workman caused by the negligence of a fellow-work- man ; the doctrine of common employ- ment applying : see Bartonshill Coal Co. v, Reid, 3 Macq. 266, and cases there cited ; Rourke v. White, &c. s Co., 1 C. P. D. 556, 2 :h. 205. And it was immaterial, whether the workman who caused the injury was, for instance, the person who let the miners down into, and afterwards brought them up from. ■ the mine (Bartonshill Coal Co. r. Reid, u. s., 296 ; Senior v. Ward, u. •«.) or was the ' imderlooker ' of the mine (Hall v. Johnson, 3 It. & C. 589) ; or was the manager, whether appointed without reference to statute (Wilson v. Merry. L. R. 1 Sc. & D. 326), or ap- pointed in obedience to the Coal Mines Reg. Act, 1872 (HoweUs r. Landore Co., L. R. 10 Q. B. 62 : seeante, p. 576). Workmen, it was held, did not cease to be fellow-workmen, because they were not all equal in station or authority (Wilson v. Merry,?*.*.). And, accord- ing to a dictum of Lord Chelmsford, civil freedom from liability for injuries was not diminished by the Reg. Acts (Wilson v. Merry, u. s., 339, ct seq. : but see the Sc. case of Edgar v. Law, 10 Sess. Cas. (3rd scr.) 236 : see ante, pp. 569 et seq.~). However, even before the Act, if one member of a partner- ship was guilty of an act of negligence causing death or injury to a workman, and the act occurred in a matter within the scope of the partnership undertaking, all the partners were liable (Ashworth r. Stanwix, 3 E. .V E. 701 ; Mellors v. Shaw. 1 B. & S. 437). PARTE.] EMPLOYEES' LIABILITY ACT. 613 orders and control of another employer. 1 And negligence on the part of the workman killed or injured may he pleaded as a defence to an action.- And a workman may contract himself out of the Act/' 1 Rourke v. White, &c, Co., 1 C. 1'. :i Griffiths v. Dudiey,9 Q. P.. D.357. D. 556, 2 ib. 205. See, generally, as to the Act, Macdonell 2 Griffiths v. Gidlow, 3 H. & N. (148 ; on Mast, and Serv., pp. G54. et seq. Senior v. Ward. 1 E. & E. 385. INDEX ABANDONED MINES. (See Regulation Acts. ) ABANDONMENT. (See Gloucestershire Rights, &c. ; RegulaMon Arts.) account, bars claim to, even where claimant has legal interest, L20, 12] non-user, no inference of, by, 527, 528 six years sufficient bar to account by analogy to Stat, of Lim., 120 ABBOT'S WOOD, 479 n., 494 u. ABERCARNE, right of property in mines and quarries in manor of, 34 n, ABSTRACT OF TITLE, purchaser of mine or quarry, or share in, entitled to, 187 share not including interest in land not entitled to, 1S7 shares in cost-book mine not entitled to, 465 unless they include interest in land, 465 ABSTRACTION OF MINERALS. (SeeLarceny; MeasureoJ Damages; Trespass.) ACCIDENT. (See Bead Bent ; Lease; Regulation Acts ; Roadivays.) ACCOUNT. (See Delay; Mortgage.) co-owner, against, 111 copyholder, for wrongful workings by, 73 cost-book company, against partner, iu, 451 equitable owner of lease, against, 240 license, against, 254 Forfeited Shares, of, in Stannary Companies, 4.">4 galee, against, under Gloucestershire Custom, 486 galee obliged to keep, 486 lessee, against, 226 licensee, agaiust, 254 life or years, for wrongful workings by tenant for, 56 lord of manor, for wrongful workings by, 74 "lot," of, under Derbyshire Custom, 512 parson or vicar, against, 81 partner, agaiust, 113, 114, 117 referee, taking of, by, 533 n. relinquishment of shares in cost-book company, taking of, on, 470. 471, 472 Relinquished Shares, of, in Stannary Companies, 474 tithe ore, of, 518, 521 toll-tin, of, 431 trespass, in, where injured person has right of possession, 533 property, 531, 532 form of order for, 533 n. ACCOUNT-HOUSE OF MINE, 421 n. 016 INDEX. ACQUIESCENCE. (See Delay.) expenditure, followed by, may bar relief, against copyholder, 73, 74 ' life or years, tenant for, 63 remainderman or reversioner, 65 co-owner liable to contribute, may render, 112 cost-book company, may render member of, liable, where purser borrows money, 400, 401 lessor, by, effect of, on breach of covenant to continuously work, 219 licensor, effect of, on position of, under mere contract, 251 nuisance, effect of, on right to restrain, 272, 273 partner, may render, liable in respect of negotiable instruments, 125 support, effect of, on right to damages for withdrawal of, 354 injunction to prevent withdrawal of, 352 watercourse, effect of, on right to injunction in respect of artificial, 395 ACREAGE RENT, 221 ACTIO PERSONALIS MORITUR CUM PERSONA. (See Death.) ACTIONS. (SeeBarmoti Courts; Stannaries Courts.) ACTS OF OWNERSHIP. (See Construdm Possession; Presumption.) ACTS OF PARLIAMENT. (See references under short or popular titles. See Table of Statutes.) "ACTUAL COSTS AND EXPENSES," not include trade allowances, 53S ADJOINING OWNERS. (See Airways j Neighbours; Nuisance; Roadioam ■ Support; Trespass; User; Water.) ADMIRALTY. < See Gn • moicJi Hospital . let. ) ADVERSE POSSESSK >.\. (See Limitations, Statutes of; Prescription ) what acts constitute, 524—526, 532 ADVOWSON. (See Parson.) AGENT. (See Cost-Bool; dec; Partner.) meaning of, in Regulation Acts, 570, 571 AGREEMENT. (See Contract, ) AIR-HEADING, butty colliers, when not entitled to be paid for, 520 AIRLEAVE RENT, lease, reservation of, in, 223, 239 neighbour, right of, to, for improper ventilation through his property, 37S AIRWAYS. (See Gas : Regulation Acts. grant in fee excepting mines, grantor may use space created by workings for ventilation of foreign miuerals, where, 68 fe grant or exception of miuerals, different principles apply where 68 lord of manor, with right to ventilate manorial mines through sub-soil mav not, prima jneie, ventilate foreign, 87, 88 ' y malicious injuries to, 547 Neighbours, airleave rent, compensation by way of, for wrongful ventilation 378 form of enquiry, 378 n. ' damages for improper user, 378 interference with right, 377 Duke of Cornwall, rights of, 376 Inclosure Acts, rights under, 376 INDEX. 0)17 AIRWAYS— continued. Neighbours, injunction against improper user, 378 interference with right, 377 mandatory, to stop up aperture, 379 where wrongdoer improperly uses, not makes, ." ; 7 * > forms of, 379 n. Land Tax Red. Act, easements under, 370 Railways Clauses Act, right under, to make communications between severed mines, 376 ventilate adjoining mine, lessee may permit mine to, 239, 24(i ventilation, no prima facie right to cause, 375 reservation of royalty, for right of, 224 through property of grantor, grantee of mine, with liberty of, may not ventilate adjoining mine, 375, 376 Waterworks Clauses Act, right under, to make communications between severed mines, 376 proprietary or possessory laud for ventilation, user of. (See J r st r. Regulation Acts, returns as to, under, 605 ALLOTMENTS. (See Indosure Ads.) ALLOWANCES. (See Income Tax; Measure of Damages ; Rating.) ALSTON MOOR, 521 n. ALUM-MAKERS, traders within Ir. Bankruptcy Act, 259, 26 1 AMBIGUITY IN CONTRACT, 185, 1S6. (See Partner.) APPARATUS, malicious injury to, 548 APPEAL, Barmotc Courts, 507 Income Tax Assessment, 550 Stannaries Court, 426 Summary Jurisdiction, Court of, 573 APPLIANCE, malicious injury to, 548 APPORTIONMENT ACT, applies to rents and royalties reserved at fixed periods, 266 semble, not to royalties payable on sale of produce, 266 APPORTIONMENT OF RENT, where intestate owner in fee of mine and lessee of surface, and both to be let together, 266 n. APPROVEMENT. (See Indosure Ads ; M< Hon, Statute of.) ARBITRATION. (See Baihoays Clauses Cons. An.) Barmote Courts, 507 0. - 5 removal of action to Queen's Bench Division, 507 service of judgments and orders in High Peak, 507 n. setting aside judgments, 507 Small Barmote Court, actions in, how commenced, 506 times and places for holding, 504 trial of actions of title, trespass, and debt in, 504 stamp, si uili/r, opinion of grand jury not require, 505 n. staying proceedings, 507 Stewards, duties of, 504 jurisdiction exercised by, 503 subpoenas to give evidence, service of, 506 how enforced, 506 time limited for bringing action, 507 title, action of, 517 execution in, 507 only one, for same mine by same person, 507 recovery of possession, 517 trial of, 504 form of summons in High Peak, 507 n. leave to person not named to appear and defend, ."07 a. trespass, trial of action of, 504, 517, 518 views of mines, 505, 506, 517, ~>18 expenses of, 506 "Wirkswortk, jurisdiction of Courts for, 502 witnesses, examination of, 506 BAROMETEKS, use of, in coal mines under Regulation Acts, 589, 590 BARRIER, Gloucestershire custom, duty of galee under, to leave, 49S liberty to galee under, to work coal in, 496, 497 lessee, who removes, liable for waste, independently of covenant, 2.">7 lessor should stipulate as to keeping up, 237, 245, 246 mandatory injunction to enforce covenant as to, 240 support from, lessor of superjacent mines may not work subjacent mines so as to withdraw, 295 trespasser who removes, liable for influx of water, 537 where damages recovered against, for removal, no damages for subsequent influx, 537, 53S BASE MINES, 40 BELLAND, 502, 502 n. BIDDINGS, former practice as to opening, not applicable to mines, 191 n. BILL OF DIRECTIONS, 505 BILL OF EXCHANGE. (See Bills of Exchange Act; Cost-Bool: and Stannary Companies; Partm r. \ INDEX. G21 BILLS OF EXCHANGE ACT, application of, to Stannary Courts, -11!), 420 BILLS OF SALE ACT, 1878, not applicable to distress under mining lease, 220 n. BISHOP, leasing powers of, 175. (See Ecclesiastical Leasing Acts.) working lights of, 77, 78 workings, remedies against, for improper, 7S BLAKENEY, claim of lord of manor of, as to gales, 479 n. BLAST FURNACES, application of Factory and Workshop Acts to, 606 BLOWING-HOUSE, 431 n. BOAPvDS, for appointing examiners under Kegulatiou Acts, 577 reports of, 605 BOOKS, to be kept under Regulation Acts, 58G BORE-HOLES, 591 BOROUGH RATES, rateability of mines and quarries to, 558 BORROWING ; MONEY. (See Cost-Book and Stannary Companies ; Partnt r. ) BOUNDARIES. {See Bounds; Parcels.) documents, production of, in questions as to, 207 u., 524 u. establishment of title, suit for, almost always maintainable, because confu- sion of, usually involved, 524 BOUNDS. (See Tin-Bounds.) breaking. (See Measure of Damages ; Trespass.) metes and. (See Gloucestershire Rights, d-c.) BUADBOURNE, tithe-ore not due in respect of mines iu, 518, 519 BREAKING BOUNDS. (See Measurt of Damages ; Trespa BREAKS. 588 BRICK burning. (See Nuisana . earth is a mineral, 12 held, how assessed to Income Tax, 552 is a quarry rather than a mine, 5 makers are traders within Ir. Bankruptcy Act, 259, 261 BRIDGE, malicious injuries to, 548 — 550 BUILDINGS. [See Derbyshin Rights, die.) malicious injuries to, 54S — 550 rateability of, '2.">0, 559, 565 support for. (See Support.) BURNING. (See Nuisance ; Setting Fire.) BUSINESS, winning of minerals a, within sect. 4 of Companies Act, 1S62, 261 n. 622 INDEX. BUTTY COLLIERS, artificers within Truck Act, when, are, 609 custom with respect to, 520 who are, 520 u. CALLS ON COST-BOOK OR STANNARY SHARES, action to recover, collusive creditor's, only non-statutory remedy, 452, 453 stay of, on payment of calls, 453 terms on which stay granted, 4.">3 to recover, statutory purser's, 4.V2 what to be alleged and proved in, 452 u. creditor's action, payment of, immaterial iu, 4.36 Couuty Court, jurisdiction of, in action to recover, 452 n. discount for punctual payment of, 452 forfeiture for non-payment of, 453, 4,14. (See Forfeiture.) interest, charge of, on non-payment of, 452 recovery of, iu action for payment of, 452 lieu for non-payment of, 453 how enforced, 453 making of, 440, 452 meeting, validity of, at which made, 4.V2 payment for goods by means of, 444 prospective expenses, for, 4">2, 4.">;> purchaser entitled to rescind not obliged, after writ, to pay, 465 where forfeited for non-payment, loss on vendor, 465, 466 registered owner alone liable, primd facie, for, 4(17 transfer, person liable to pay, where blank, 466 stannary company need not recognize, before payment of, 469 transferee, liability of, to pay, 467, 468 transferor, liability of, to pay, 467 CALSTOCK, 38 CAMBRIDGE, power of University and Colleges of, to lease mines or quarries, 178 — 180 CANAL. (See Support ; Water,) CAPE BRETON, Crown lease of mines in Nova Scotia, held to include mines iu, 522 u. CAPITAL. (See Cost- Book and Stannary Companies; Incomt Tax.) CAPITAL MONEY, under Settled Laud Act, 131, 132 CAPTAIN of cost-book company, 444 CATTLE. See Fences.) CAVEAT EMPTOR applies to lessee refusing to pay dead rent on account of faults, 215 purchaser pleading exhaustion, if he has known of some working, 1 89 seeking to rescind for fraud, if he has judged for himself, 199 unknown faults, 200 CEM ENT WORKS. (See Nuisana . ) CERTIFICATED MANAGER. (See Reg-illation Acts.) CESTUI QUE TRUST. (See Trust; Trust,,-.) not included in 'other persons interested in minerals' iu Met, Mines Act 599 INDEX. 023 CHAIN. (See Regulation Acts.) malicious injury to, 548 CHALK, a mineral, 12 works. (See Nuisance.) CHAMBER. (See Containing Chamber.) CHARITABLE TRUSTS ACTS, trustees of charities may, with consent of Charity Commissioners, lease mines, &c, under, 180 CHARITY. (See Mortmain Acts. CHATTEL REAL, estate of tin-bounder in Cornwall is, 4.'i0 CHECK-WEIGHER. {See Regulation Acts.) CHILD. (See Regulation Ads.) Factory and Works. Acts, provisions of, as to, 607 CHINA-CLAY, a mineral, 12 . CHURCH L..4NDS. (See Bishop ; Dcm Chapter; V ' Acts; Land Tax Red. Act; Parson; Prebendary.) CLAY, a mineral, Yl Isle of Man, right to, in, 519, 520 pit is quarry rather than mine, 5 unless when worked underground, 5 CLERGY". (See Ch urch Lands. ) CLOSE, includes both surface and subsoil, 21 COAL. (See Table of Contents.) a mineral, 12 COAL AWARD, 481 n. COAL GALES. (See Gloucestershire Rights. <(r. ) COAL MINE, owner of, whether trader within Ir. Bankruptcy Act. •_'•">!• COAL MIXES REGULATION ACT. (See Regulation A COALERY, definition of, 25 COALS UNDERGONE, butty colliers, when not entitled to be paid for, 520 CODICIL, devolution under, according to Derbyshire custom. 513 COIN, payineut of wages in, under Truck Act, 60S COINAGE, of tin in Cornwall uo longer necessary, 441 n COKE, may be ' produce of mines,' 19 ovens. (See Nuisana . COLLEGE. (See Universities and College Estates Act.) 624 INDEX. COLLIERY. (See Tabic of Contents.) companies, how assessed to Income Tax, 553, 554 construction of liberty to drain water from intended, 402 definitions and meaning of, 25 trade, a species of, 267. (See Trade.) COLONIES, cost-book mines in, 442 Crown grant in, not pass gold or silver mines without express mention, 41, 521 Victoria, 251, 252 Crown lease of mines in Nova Scotia held to include mines iu Cape Breton, 522 n. local Acts, mining rights in, regulated by, 522 Privy Council, decisions of, as to rights in mines iu, 522 u. COMMISSIONERS OF WOODS. (Sec Grown ; Gloucestershire Eights, tfce.) COMMITTEE OF LUNATIC. (See Lunatic. COMMON LAW PROCEDURE ACT, arbitration under, 248 inspection uuder, 541 COMMON OF TURBARY, meauiug of, 92. (See Custom; Prescription.) COMMON, TENANT IN. (See Co-owner ; Partner.) COMMONS. (See Custom : Inclosure Acts ; Tnclosuresj Merton, Stat, of; Prescrip- tion : Wasti j. COMMONS ACT, 1876. (See Inclosure Acts. ) materials for roads under, 106 COMMUTATION, (See Enfranchisement Ads.) COMPANIES. (See Companies Act, 1862; Company; Cost /-'<»//■ a,vi Stannary Companies ; Harbour Com) m n ies .• Lands Clauses Consolidation Act ; Rail- ways Clauses Consolidation Act; Stannary Courts; Waterworks Clauses Act.) COMPANIES ACT, 1862. (See Cost Book and Stannary Companies. business, winning minerals is a, within s. 4 of, 261 n. negotiable instruments, no power to issue, under s. 47 of. 126 partnership, legality of mining, if formed before, 442 siuce, 442, 443 personal estate shares iu companies are, under, 265 COMPANY. (See Cost Book and Stannary Companies : Stannary Courts.) laches by, less material than by individual, 200 n. Income Tax, 553 — 556. (See Incorm Tax.) COMPENSATION. (See Employers' Liability Act; Fraud; Lands Clauses Conso- lidation Act; Measun of Damages; Raihvays Clauses Consolidation Act; Roadways; Water; Wat&noorks Clauses Act.) COMPULSORY PURCHASES. (See Lands Clauses Consolidation Act; Railways Clauses Consolidation Ail ; Waterworks Clauses Act. and voluntary on similar footing as to support, 311 CONCEALMENT. (See Fraud.) of ore, with iuteut to defraud, when a felony, 545 punishment for, 545 INDEX. 625 CONFIRMATION OF SALES ACT, future sales, exchanges, partitions, or enfranchisements, Court may sanction disposition from time to time, 134 without reference to any particular sale, 134 "other person" includes mortgagee, 136 power of separate dealing by "trustee or other person," 134 but must obtain sanction of Court, 134 past like sales, &c, confirmation of, 133, 134 practice under Act, 134, 13(3 forms of orders, 134 n. CONSEQUENTIAL DAMAGE. (See Measun of Damages,) effect of death on right to recover in respect of, 544, 045 CONSOLIDATION OF VEINS, 511, 514 u. CONSTRUCTIVE POSSESS ION, agreemeut as to whole, with physical possession of part, is constructive pos- session of whole, 41, 532 contra, wdrere agreemeut not enforceable, 41, 213 licensee iu actual possession of one of grauted seams is in constructive pos- session of others, 253 licensee of whole mine, who enters on part, only rateable as to part, 42, 503 rightful possession of part, constructive possession of whole where, 41, 527 seam, physical possession of one, not, of itself, constructive possession of all beneath, 41, 42, 527 tin-bounds, rightful possession of one mine iu, is sufficient possession of all, 41, 429 wrongdoer, acts of ownership by, iu parts may be evidence of possession ot Avhole, 41, 532 physical possession by, of part, not conclusive presumption as to whole, 41, 527 CONSTRUCTIVE TRUST, arises on renewal of lease by partner, 119 tin-bounds, 433 delay fatal to enforcement of, 121, 122. (See Delay.) CONTAINING CHAMBER. (See User.) copyholder, where space created by workiug, possession is in, 35 galee, where space created by working by, property vests iu Crown, 4S4 lessee, where space created by workiug, possession is in, 33 lessor, where space created by working by lessee, property is in, 33 life, where space created by working, possession is in tenant for, 33, 70 lord of manor, where space created by working by copyholder, property is mine includes space created by working, and vacuum after working, 9, 10, 11 consequences where severance of mine from surface, 10, 11 mineral generally not include space created by working, IS but context may enlarge meaning, IS quarry probably iucludes space created by working, 11 remainderman or reversioner, where space created by workiug by tenant for life or years, property is in, 33 seam probably includes space created by workiug, 1 1 vein probably includes space created by workiug, 11 _ years, where space created by working, possession is in tenant for, 33, / CONTINGENT REMAINDERMAN. (See Contingent Remainders.) on coming into esse, may have remedy for previous trespass, 530 CONTINGENT REMAINDERS. TUbsTEES TO PRESERVE, may have account for waste for benefit of tenant in fee or tail not tn injunction. 61 CONTINUOUSLY WORK. {See Royalty.) 626 INDEX. CONTRACT, abstract of title, 187, 465. (See Abstract of Title.) acceptance of title, taking possession not an, 191, 192 ambiguity in, 185, 186 construction — contract or lease, 183 copyholds, where subj. matter, not nee. to mention lord's right to mines, 1S9 cost-book co., 463—466, 468, 472, 473. (See Fraitds, Stat, of; Relinquisli- ment, die. ; Transfer.) covenants to be inserted when contract silent, 196, 197. (See Specific Per- formancc.) dead rent, omission to stipulate for, not make contract for "all usual cove- nants," void for inequality, 194 reservation of, does not free lessee, although mine or quarry non- existent, 190 delay fatal to enforcement of, 194, 195. (See Delay.) enfrancht. (compuls.) not affect mines, unless with conseut in writing, 1S2 when subj. matter, not nee. to mention lord's int. in mines, 1S9 fraud a bar to enforcement of, 192 — 194. (See Fraud. ) ground for rescission or compensation, 199—201 (See Fraud.) Frauds, Stat, of, 183—185, 463, 464. (See Frauds, Stat, of) local customs, when applicable, not necessary to mention existence of rights thereunder, 1S9 loss, in sale by Court, between sale and confirmation, falls on pur., 191 management, in sale by Court, between sale and confirmation, 191 manorial rights, commut. of, not include mines, unless express agreement, 182 mistake, 200. (See Mistake.) opening biddings, former practice as to, not applicable to mines, 191 n. part performance of, takes case out of Statute of Frauds, 184 paymeut of price dependent on capacity to sell, 192 performance. (See Specific Performance.) possession, purchaser or lessee entitled to beuefit of, as from contract, 191 when time for taking, not arranged, purchaser entitled to, as from when, 191 pre-emption, covenant giving right of, runs with land, 182 unlimited right of, void for perpetuity, 182 "preservation"' under Judicature Rules, motion to restrain lessee from ceasing to pump proper for, 192 property transferred by sale, not by confirmation, when sale by Court, 191 quiet enjoyment, when lessee entitled to covenant for, when working by third person, 190 railway co. , notice by, should mention mines, if such be intention, 182 ratification of parol, 184 rescind, right of vendor to, when purchaser persists in objection to title to mines, 190 specific performance of. (See Specific Performance.) speculative character of mining property, enforcement not refused, because of, 190 surface to centre, whole solum from, included in contract to sell land _ generally, 1S2, 188 title, where waut of, to mines or quarries, vendor cannot in gen. enforce, 188 purchaser may in general enforce with compensation, 188 immaterial that compensation difficult to estimate, 188 existence of mines or quarries not proved, 1S8 real owner has long refrained from working, 188 may not work without consent of surface owner, 188 contra where local customs apply, 189 or where proof of non-existence of mines, or cesser of right to work, 188, 189 but difficult to prove non-existence, 18S n. pur. knows of want of title and goes into possession, 189 subject-matter copyholds or enfranchisements, 189 trade, effect of principle that mines a species of, 191 uncertainty in, 186, 187. (See Uncertainty.) INDEX. G27 CONTRACT— emit in ued. warranty as to existence, when no, and mine or quarry non-existent, purchaser or lessee bound, 190 immaterial that in lease dead rent reserved, 1 00 waterworks co., notice by, should mention mines, if such be intention, 182 working, where mines exhausted or partly exhausted by, purchaser may in general enforce, with compensation, 188 contra where purchaser has known of working, 189 or of some working, although not of extent, 189 or where third person is in possession and working, 1S9 smalluess of value of miuerals, effect of, 189, 190 working, where mines exhausted or partly exhausted by, vendor cannot in general enforce, 188 works, purchaser who, may be ordered to pay purchase-money into court, 86, 192 CONTRIBUTION. (See Co-owner ; Cost-Book and Stannary Companies ; Partru r. | CONTRIBIJTORIES. (See Cost-Book and Stannary Companies.) CONVENTIONARY TENEMENTS, 38, 39 CONVERSION, necessary, where residuary gift in will, 49, 50, .Jl of share, on death of partner in cost-book company, 475 mine or quarry, "204 CONVEYANCE, boundaries, 207 covenants for title iu, 210, 211. (See Title.) enfranchisement (compulsory), not affect right to mines, unless with express consent, 203 "found," meaning of, iu, 209 "gotten," meauing of, in, 209 land iu, primd facie includes all from surface to centre, 202 land-tax, mines in laud sold for redemption of, uot pass by, 146, 203 liberties for which mine-owner should stipulate in, 207, 208 manor, Avhere conveyance of, will pass mines, 203 parcels, 204—206. (See Parcels.) precautions to be taken in framing, 204. (See Parcels.) Railways Clauses Act. (See Hail/coys Clauses Consolidation Act | Purchase. I stamps, 211 waste, miues iu, pass by general words, although existence unknown, 203 Waterworks Clauses Act, (See Waterworks Clauses Act). CONVEYANCING AND LAW OF PROPERTY ACT, 1881. forfeiture, provisions of, as to lessee's breach of covenant as to inspection of mine, accounts, &c, not applicable to, 225, 242 licences, application of, to, 255 qu. , whether applicable to gales, 492 n. service of notice, 242 infant tenant iu fee, lands of, demisable under, 159 infants, provisions of, authorising trustees to work on behalf of, 65, 66 manor, conveyance of, under, includes, primdfacie, mines, &c, 203 miuiug lease, meaning of, in, 160 n. rent, meaning of, iu, 160 u. term enlarged under, ownership of miues, where, 2(1, 32 original impeachability of waste immaterial, 26, 32 CO-OWNER. (See Cost-Book and Stannary Companies; Partition ; Partitw Partner.) account, action for, for appropriation beyond share, 1 1 1 appropriate, no co-owner entitled to, more than share, 111 appropriation, meauing of improper, 111, 112 contribution, co-owner not in general entitled to, against others, 112 contra where others acquiesce, aud moneys spent in necessaries, 112 damages for interfering with right of working, 110 ss2 628 INDEX. CO-OWNER— continued. destruction or ouster, there must be, before remedy for interference, 110, 111 destructive waste restrained, 111 devolution of share of, as real estate, 263 lien, co-owner not in general entitled to, against others, 112 contra, where others acquiesce and moneys spent in necessaries, 112 manager, 111. (See Receiver and Manager. ) mesne profits, where interference with right of working, 11(1 occupation-rent, where interference with right of working, 1 10 partners as to third persons, co-owners in general are, 112 partnership in working. (See Partner.) profits, not accountable for share of, 112 receiver and mauager, 111. (See Receiver and Manager.) recovery of undivided share, wheu interference with right of working, 110 sale, may not generally have, 138 under Partition Acts, may have, 138, 139. (See Partition Ads.) specific performance not enforceable as to moiety, where contract by, as to whole, 196 transfer share, may, 137 work, any co-owner may enter on and, 110 CO-PARCENER. (See Co-Owner.) CO-PARTNER. (See Cost-Book, &c. ; Partm , COPE, 511, 512, (See Derbyshire Rights, recover minerals, lord may have action to, when copyholder wrongfully works, 73 remedies for wrongful workings by, 7."!, 74 lord, 74, 75 repairs, right of copyholder to dig new mines or quarries for, 72 reversioner, immaterial for remedy against lord that copyholder a, 75 stones, which fall on copyhold laud, rights as to, 72, 73 trespass, damages agaiust stranger for, how divided, .">:;!) for workiugs by stranger, copyholder may have, 533 user of surface or subsoil, S7 — 89. (See / r si r . vendor of copyholds need not mention that property in mines in lord, 189 Wakefield, property of mines in manor of, in, 34 n. waste, copyholder who works new mines or quarries, commits, 73 waste, sand pits, abstract of title to mines, purchaser of cost-book share not entitled to, 165 account, action by mortgagee of one partner in cost-book company for, 451_ one member of cost-book company against others for, 4">l need not ask for dissolution, 4.">1 parties to, 451 relinquishing member of cost-book company for, 472 for, of profits of particular share in cost-book company, 451 n. account of forfeited shares in stannary company, 454 relinquished shares in stannary company, 474 account, taking of, on relinquishment, 471 accounts and entries by purser, 449 statutory duty as to, of agent of stannary company, 449, 450 auditing of, of stannary company, 449 passing of, of cost-book company, 449 G30 INDEX, COST BOOK AND STANNARY COMPANIES— continued. actions by and against cost-book company in partnership name, 44G power of Vice-Warden in winding up stannary company to direct, 477 additions to rules of stannary company by special resolution, 451 admission of membership, effect of, in action by creditor, 457, 45S adventurers, meeting of, on formation of cost-book company, 443 advertisements necessary before sale of property of stannary company, 475 affidavits in winding-up of stannary company, 477 n. agents, appointment and removal of, 449 transaction of business by, 449 agreement to become member, effect of, on liability to contribute, 455 alterations in rules of stannary company by special resolution, 451 attachment in Mayor's Court, doubtful whether cost-book shares liable to, 462 of debt due by one stannary company to contributory of other, when both in licpaidation, 477 order for production of list of members of cost-book company enforceable by, 450 auction necessary before sale of property of stannary company, 475 bankruptcy of member not dissolve cost-book company, 474 bill of exchange. (See, under present title, negotiable instruments.) borrowing money, member of cost-book company may not, primd facie, bind others by, 460 purser of cost-book company may not, primd facie, bind others by, 4G0 when borrower entitled to reimbursement, 461 calls. (See Calls, &c.) capital, abandonment of working before subscription of, effect of, 445 fixed, seldom agreed on, 443, 444 where agreement for, commencement of working, 445 necessary in registration, 447 working, with smaller, than agreed, effect of, in cred. action, 456 captains sometimes appointed for cost-book company, 444 change of purser, notice of, under Met. Mines Act, 449 n., 603 charge, adjudication on validity and extent of, in winding-up, 477 attachment of debts not to prejudice, 477 charity, cost-book shares may, in general, be becpieathedlo, 475 contra, where lease in trust for individuals, 475 colonies, cost-book companies formed in, 442 collusive creditor's action to recover calls. 452, 453 stay of, 453 terms on which stay ordered, 453 commencement of working of cost-book company, 445 committee of management sometimes appointed for cost-book company, 444 order for inspection against member of, 444 n. Companies Act, 1S62, legality of cost- book company, if formed before, 442 since, 442, 443 registration under, of stannary co., optional, 447,448 concealment a bar to enforcing contract for transfer of cost-book share, 466 contract. (See Contract ; Relinquishment, Duke of Cornwall enters, position of person on whose lands, 279, 460 England, cost-book comps. in or. parts of, than Cornwall or Devon, 442 entries by purser in cost-book, 449 entry in cost-book of particulars of cost-book arrangement, 444 resolutions, 449 rules, 445 632 INDEX, COST BOOK AND STANNARY COMPANIES— continued. entry in cost-book, transfer of shares, not operate as, 467 primd facie evidence of, 467 evidence, admissibility in, of book purporting to be former cost -book, 446 n. that delivery of cost-book shares and payment simultaneous, 4 ( 15 of supply of goods, what is sufficient, 459 what, purchaser of cost-book share entitled to, 465 filing copy of rules, duty of stannary company as to, 451 fixed amount, shares in cost-book company seldom of, 443, 444 capital seldom agreed on, 443, 444 where agreement for, commencement of working, 445 nee. in registration of cost-book co., 447 foreclosure by mortgagee of one member of cost-book co. against others, 451 forfeited shares, account of, 454 mode of dealing with, 454 sale of, and position of purchaser, 454 forfeiture. (See Forfeiture.) formation of cost-book company, 443, 444 former member, liability of, in winding up, 476 fraud. (See Fraud.) Frauds, Statute of. (See Frauds, Slut ale of.) freehold conveyance to member, not nee. to show, in creditors' actn., 45S High Court, winding up in, 425, 476 holding out to creditors as member, by person who has never been a member. 457, 457 n. relinquishing member, 473 n. transferor of shares, 467 u. indemnify relinquishing member, duty of cost-book company to, 473, 474 transferee as to future transactions, transferor may agree to. 468 injunction to restrain nuisance, cost-book member who sells, not liable to, 462 sale of property of company at instance of member or creditor, 475 injunctions, exhibition of list of, 476 n. inspection against member of committee, order for, 444 n. of register of members by member, 450 Vice- Warden may compel, 450 of mortgages, by member or creditor, 450 order for, 450 rules of stannary company, 451 order for, 451 interest, calls recoverable with, in purser's action, 452 charge of, on calls unpaid, 452 interpleader, in winding up, 477 trial of actions or issues directed on, 477 intervals between meetings, transactions of cost-book co. in, 449, 450 I. O. U.'s given by directors of cost-book company to purser, effect of, 455 n. Ireland, cost-book companies in, 442 issues, power of vice-warden to settle, iu wiuding up, 477 judgment debt, semble cost-book shares not liable to be charged with, 462 judgment debtor, sale of share in cost-book company of, for priv. debt, 402 jurisdiction, within and subject to stannary, where working is, 443 jury, conclusiveness of finding of, in winding up, 477 land, cost-book interest iu, treated as personalty, 475 lessors not prejudiced on sale of property of stannary company, 475 lieu, adjudication in winding up on validity and extent of, 477 attachment of debt not to prejudice, 477 for non-payment of calls in co-t-book company, 453 enforcement of, by sale, 453 of supplying creditor, 459 enforcement of, by customary suit, 459 effect of, on position of transferee, 468 limited company, registration of cost-book company as, 447 list of members, 450 inspect and obtain copy of, member entitled to, 450 order for, how enforced, 450 production of, member or creditor entitled to, 450 INDEX. 633 TOST BOOK AND STANNARY COMPANIES conti d list of members, production of, order for, how enforced, 150 statutory duty as to, 450 majority in value pass resolutions in stannary co., 1 18 of shares eovern cost-book company, 44i) Mayor's CouxVlouf.tful whether cost-boob shares liable to attachment m, 462 meeting, calls must he made at valid \sl fe of adventurers to form cost-book company, 443 single member of stannary company nut a, 4 l.i meetings, business transacted at, 449 meetings, ^^ ^ atteil ding, as showing membership, 458 intervals between, 449, 4.">0 of cost-book and stauuary companies, 448, 44. 1 member, agreement to become, effect of. on lability to contribute, 4.,, holding out as, 4.">7, 457 n., 4b, n., 4,.> n. metallic mmeS, .eLsity to work for , in ( 'orowall or Devon to be «rth» ind subiect to stannary jurisdiction, 44.. £fd^s^or^^Srl£Tr b n^^, sSE%*-s o t , £-----; » *£*£■» 4 "' order for, 4.>o Mortmain Acts, cost-book shares not in general within, 475 contra where lease in trust for individuals, 470 -" ° f ^Sip!SonT| l and' a^inst cost-book company^ 446 negotiable instruments, purser or member may not, pn <-, 'Tat^ maler, acceptor, or indorser alone liable 461 liability of purser, who accepts per procuration, 4bJ new^S'i^e^Som P rovitd for in cost-book company, 444 ;:£ purchase of cost-book shares in uame of, effect of, 409, 4,0 notice of meeting, special, what is. 44S, 449 to purser, on relinquishment, 4,U nuisance by cost-book company, liability of member for, 462 Wcontract for transfer of cost-book shares generally good, 464 1 transfer of cost-book shares generally good, 166 ivirtip<* +,o action for account. 451 . . , . S» toer >o»y trausfcr, effect of partnereUp problem tbat, 468 felM^^P^M^ ^' =£or^ -- production » ^ memberSj member r creditor entitled to, 450 order for, how enforced, 4oU promissory note. (See, under prout itifle, «*•) P^s! SSlSy^ev.^ ' n, aotioa ou, o, book porportmg to be r former cost-book, 44b n. and rules, effect of conflict between, 445, 44b purser, accounts and entries by, 449 actio, by. to = er ^abs, 4^ ^ ^ ^ __ SrS'bLlettoSe,. Met. Mine. Reg. Aet, 449 ,,. 603 to, on relinquishment, 4,0 power of, to borrow money, 400 1 draw bills of exchange, &c, 4b 1 order goods on credit. 455, 156 C31 INDEX. COST BOOK AND STANNARY COMPAmES— continued. purser, removal of, 449 transaction of business by, 449 pursers' suit for contribution, 420, 421, 433 n., 454, 455 procedure in, 420, 420 n., 421, 421 n. (See Stannaries Courts.) ratability of members of c. b. co. , 446, 564 ready money principle, cost-book company carried on upon, 460 recognition of cost-book custom, existence and nature of, recognized in Stannary Courts, 478 of, recognized by Legislature. 47S no judicial, in ordinary courts, 478 rectification of register of members by Vice- Warden, 422, 450 or by High Court at option of applicant, 425 reason why option given, 425 register of members of stannary compauy, 450 effect of entering name in, without authority, 457, 458 inspect and obtain copy of, member entitled to, 450 must be kept at registered office, 450 rectification of, 422, 425, 450 registei'ed office of stannary registered company, 44S owner alone entitled to benefits of membership, 467 liable for calls or contributions, 455, 467 to be placed on list of contributories, 467 registrar's office of Vice- Warden's Ct., one of offices for registration, 44S u. registration and winding up, effect of, on former cost-book member, 418, 455 n., 459 of c. b. co., effect of, on right to resciud for fraud, 446 whether within or without stanuary limits, 447 stannary company not being cost-book compauy, 447 optional in stannary company, whether c. b. or not, 447, 44S without authority, effect of, 457, 458 reimbursement, where borrower entitled to, from cost-book company, 461 relinquishment. (See Relinquishment, .if.) removal of agents of cost-book company, 449 rescission of contract to take or buy shares. (See Fraud.) resolution, special, what is, 449 resolutions, entry of, in cost-book, 449 rules of cost-book company, effect of conflict between, and prospectus, 445, 446 entry of, in cost-book, and signature, 445 expressly defined, now usual, 444, 445 contra formerly, 444 members may not be bound by anything not appearing in, 415 n. where rules depart from custom, company not cost-book, 445 where written rules necessary, 447 of stauuary companj', 451 alterations and additions, how made, 451 what may not be made, 451 duty to file copy, 451 inspection of, 451 order for, 451 sale for non-payment in creditor's suit, 459 of calls, 453 contribution, 454, 455 of forfeited shares in stannary company, 454 property of stannary company under special resolution, 475 injunction by member or creditor to restrain, 475 lessors or creditors not prejudiced, 475 public auction, and advertisements necessary, 475 relinquished shares in stannary company, 474 share of judgment debtor for private debt, 462 scrip mine same as cost-book mine, 443 secretary sometimes appointed iu cost-book compauy, 444 set-off, attachment of debts not to prejudice, 477 shares, agreement in cost-book company upon number of, 443 of fixed amount, seldom in cost-book company, 443, 444 signing of cost-book, 444 INDEX. G35 COST BOOK AND STANNARY COMPANIES— continued. siguiug of rules in cost-book, 44.3 special notice of meeting, what is, 44S, 449 resolution, what is, 449 specific performance, actionfor, to compel substitution of names in c.-b.. 466 stamp, cost-book not require agreement, 4 14 request or authority to register transfer requires sixpenny, 466, 467 penalty, 4(i7 transfer valid without, 466 stannary jurisdiction, working, within and subject to, meaning of, 4 i:i stay of proceedings in collusive creditors' action, 453 terms on which stay granted, 453 in winding up, 476 supply of goods, what is sufficient evidence of, 4.59 title, what evidence of, purchaser of cost-book share entitled to, 405 tort by cost-book company, liability of member for, 462 transfer. (See Transfer.) trust for cost-book company of grant from owner of soil seldom declared, 1 !.'! Vice-Warden's Court. (See Stannaries Courts.) winding up stau. co. in, 476. (See /;' . ,{■■-.) vouchers, custody of cost-book, 450 u. wages of miners, &c, for three months payable in priority in winding up, 170 Wales, cost-book companies in, 44:2 winding-up, 422, 425, 476, 477. (See Winding-up, d-c.) working, abandonment of, before subscription of capital, effect of, 445 commencement of, of cost-book company. 445 within and subject to stannary jurisdiction, meaning of, 44.'} written rules, where necessary for cost-book company, 447 COUNTY COURT, cost-book mines, remission to Stannary Court of C. C. causes touching, 422 shares, jurisdiction of, in actions to recover calls on, 452 n. Derbyshire Rights, &c, ' cope,' enforcement of payment of, in, 512 damage for exercise of working rights, recover}'' of, in. 509 n. execution in, of judgment or order for payment iu Barmote Court, SOS un watering mines, recovery in, of compensation for, 519 Employers' Liability Act, action under, to be brought iu, 612 Gloucestershire Rights, &c, recovery of rent or royalty in, 486, 48S, 4S9 Rivers Pollution Prevention Act, offences under, restrainable by, 400 Stannaries Courts, concurrent jurisdiction in personal actions, 424 not concurrent equitable jurisdiction, 424, 425 process from County Court for euforciug stannary order, 427 remission from County Court for trial, 422 of claim of interpleader, 427 n. COUNTY RATES, ratability of mines and quarries to, 557, 55S COURT, pay into, purchaser working may be ordered to, S(^, 192 sale by. (See Contract j Cost-Book and Stannary Companies.) COURTS. (See Barmote Courts; County Court; Gloucestershiri Rights, f, 2\~ payable although mine not worth working because of unknown, "_' 1"> fraudulently abstaining from working to evade payment, 216 lessor should always stipulate for reservation of, 214, 215 nonentity, effect of reserving, on right to enforce contract, where mine a, 190 fact that mine is a, is immaterial as to liability to pay. 215, 216 pits, covenant to take usual steps to sink, is unsafe substitute for, 216 regularly, covenant to work, is unsafe substitute for, 216 royalty, lessee cannot escape payment by offering to pay, 215 Scotch law, 216 n. Settled Land Act, may be reserved under, 165 specified quantity in each year, coveuaut to get, is unsafe substitute for, 216 time, lessee sometimes stipulates for exemption for, 218 n., 233 support, effect of reserving, as regards, 323 surrender, on minerals being worked out, immaterial as to liability to pay, that lessee may, 215 under all circumstances, when reserved, usually payable, 215 working, covenants as to, are unsafe substitute for, 216, 217 payable although mine not worth, 215 workmanlike manuer, covenant to work in, is unsafe substitute for, 216 DEAN" AND CHAPTER, leases may not be granted by, 175, 176. (See Ecclcs. Leas. Acts.) working, position of, as to, 78 DEAN, FOREST OF. (See Gloucestershire Eights, &c.) DEATH. (See Apportionment Act; Co-owner; Cost-book and Stannary ('<>■ Derbyshire Rights, &c. ; Devolution ; Dower ; Fixtures ; Licence; Mortmain Ads; Partner ; Bent; Tin-bounding.) accident, notification of death resulting from, 602 gale, loss of right to, by, 495 inquests, 602 of cost-book member converts interest in land (if any) into personalty, 475 does not dissolve company, 474, 47 5 workman, where remedy under Employers' Liability Act, 611 partner operates as dissolution, 262 support, remedy in respect of, may be destroyed by, 354 (See Chapman v. Day, now reported on appeal iu 49 L. T. 436. ) tort, remedy may be destroyed by, where personal, 544 e.g., where consequential damage through trespass, 54 I where tort within six months before death, action within limited time, 544, 545 trespass, remedy in respect of, not destroyed by, 5 14 waste, remedy against copyholder in respect of, not destroyed by, 73 tenant for life or years in resp. of, not destroyed by, 57, 58 way, remedy for wrongful user of right of, destroyed by, l>79 (Phillips v. Homfray, now reported 24 Ch. D. 439.) DEBENTURE HOLDER, appointment of interim receiver and manager, at instance of, 209 form of order, 209 n. , 210 n. DEBT. (See Barmote Courts; Derbyshire Rights, &c) DEDUCTIONS. (See Income Tax; Lease; Bating.) 640 INDEX. DEED, necessary to create legal grant of right of water, 3S4 n. way, 356 interest in licence, 251 transfer of licence, 252 DELAY. (See Acquiescence.) abandonment by person with legal interest nee. to bar rights, 120, 121 but relief only obtainable on terms, 121 possession immaterial, if subsequent, 194 account, delay may be bar against partner applying for, 120, 121 assertion of claim insufficient to keep right alive, 121 company, effect of laches by, 200 u. contract to sell or lease, delay may bar right to enforce, 194 periods which were formerly held fatal, 194 shorter periods uow held fatal, 194, 195 exceptional circumstances, delay not fatal under, 195 copyholder, delay may bar relief against, 73, 74 disability, delay uo bar when claimant under, 122 equitable interest, delay may be bar against partner with mere, 120 expenditure, effect of, 121. 122, 514 fluctuating character of mining operations, 120 forfeit, delay may bar right of lessor to, 242 fraud, delay may bar right to rescind contract for, 200 gale, contract for purchase of, 491 injunction, delay may bar light to iuterlocutory, 544 laches, person with legal interest not barred by mere, 121 legal iuterest and abandonment of rights, 120 insistence on and recognition of rights, 120, 121 life or years, delay may bar remedy against tenant for, 63 Limitations, abandonment for six years sufficient by analogy to Stat, of, 120 in mining property Court goes beyond analogy of Stat, of, 121 receiver and manager, delay may bar right against partner applying for, 117 refused, delay uo bar, when application for accounts made and, 122 renewal of lease, delay may bar right of partner to enforce trust on, 121 effect of non-communication of intention to apply for, 122 representative, application of doctrine of, against personal, 122 resciud contract for fraud, delay may bar right to, 200 mineral contract, laches peculiarly applicable to action to, 200 time of the essence in mining contracts, though not originally named, 195 ergo, either party may fix reasonable time, and in default rescind, 196 trespasser, delay may bar remedy by interl. iujn. against alleged, 544 trust express, than where constructive, semble delay less fatal where, 122 uncertainty, difficult to get rid of objection of, by showing no, 122 water rights, delay may bar right to restrain infringement of, 395 DELIVERY IN SPECIE BY WAY OF KENT, 221, 222 DEMESNE LANDS. (See Wastes.) DEPRIVATION, bishop, 7S parson, S2 DEPUTY BARM ASTER, 503. (See Derbyshire Sights, &c.) DEPUTY GAVELLER. (See Gloucestershin Rights, &c.) DEPUTY STEWARDS, 503. (See Berlyshin Rights, d-c.) DERBYSHIRE RIGHTS, COURTS, AND CUSTOMS. (See BarmoU Courts.] account of lot, action for, 5 1 2 tithes, action for, 518 actions. (See Barmoti Courts.) appeals, 507 Ashford, property in lead mines, &c, in, 38, 500 bankruptcy, 512 Barmasters. (See Barmote Courts.] INDEX. Oil DERBYSHIRE RIGHTS, COURTS, AND CUSTOMS— continued. belland, meaning of, 502 n. buildings, devolution of, as personalty, f>]li n. duty of miner as to removing, ."ill! right of miner to erect and alter, 514 remove, 515, 516 (incoming) to require removal, 51S (outgoing) to remove, 51S co-adventurers, mutual rights of, 517 consideration for transfer to be stated, 512 consolidated veins, forfeiture as to, 514 u. consolidation of veius, 511 contract, customary rights may be lost by, 509 contribution, forfeiture for non-, 517 cope, meaning of, 511, 512 measurement of, 512 payment of, how enforceable, 512 County Court, damage for working in excepted places recovered in, 509 n. Courts. (See Barmote Courts.) Crich, property in lead mines, 18 enforcement of, 51 S smytham, meaning of, 502 n. former non-exemptiou of, from duties, 51 I n., 512 n. statute and scheduled articles and customs, regulation of, by. 501, 501 n. Stewards. (See Barmott Courts.) Stoney Middleton, property in lead miues, &c, in. 38, 50 I surface, right of miner to exclusive use of, for mining purposes, 514 no user of, iu High Peak for ore, &c, from Wirksworth, .">14 qu., user of, of one owner for produce of other owner, 515 Tideswell, property in lead mines, kc, in, 38, 500 tithes, 5 IS, 519, 507 enforceable by action for account, 51 S not due of common right, 519, 567 title, action of, 517. (See Barmote Courts.) recovery of possession iu, 5 1 7 gift is origin of, 517 priority of rinding determines, 517 transfer. (See Transfer.) trespass, action of, 504. (See Barmote Court*.) damages, 517 in third meer, forfeiture for, 513 unwatering mines, 392 n., 519 compensation iu respect of, 519 how recoverable, 519 vein, statutory meaning of, 501 veins, approach, meeting, and intersection of, .">17 consolidation of, 511 vendor need not mention existeuce of customary rights, 189 views of mines, 505, 506 expenses of, 506 u. trespass, for ascertaining, 517, 51S adjourned view, 518 water. (See, under preseut title, unvxttering.) rights of, 514, Til4 n. way, rights of, 514, 514 n. will or codicil, devolution under, 513 entry of probate, 513 Wirksworth, property in lead miues, &c., in, in Crown, 37, 38, 500 working, forfeiture for uou-. 513, 517, "'I s third nicer, position of Crown in, 516, 517 right of finder upon nou-working of, 510, 511 Youlgreave, property in lead miues, &c, in, 38, •"'Hit DEVISE. (See Mortmain Acts ; Win.) DEVOLUTION. (See Apportionment Act; Bankruptcy; Co-owner; Cost-book and Stannary Companies; Derbyshire ]!i., 278, 279, 422 water, right of, to take, use, and divert, 277. 278, : JS5 way, rights of, of, 277, 278, 371, 376 DURHAM. (See Universities and College Estates Act.) tithe ore due by custom iu Teasdale Forest and Stanhopc-in-Wcardale, in, 520, 521, 567 action for account of, 521 inspection of mine by impropriator, 521 DUTY. (See Succession Duty.) 646 INDEX. EARTHENWARE WORKS, application of Factory and Workshop Acts to, 606 EASEMENTS. (See Airways ; Enfranchisement Acts; Nuisance; Powers; Road- ways; Support; User: Water.) grantee of, not in general rateable, 564 contra where he excludes all other persons, 564 ECCLESIASTICAL COMMISSIONERS. (See Ecclesiastical Leasing Acts.) ECCLESIASTICAL LEASING ACTS, bishop, notice to, of sale, &c. , 146 building leases, mines to be excepted on, 178 materials, 178 contracts for leases, 177 sales, &c, 146 Ecclesiastical Commissioners, approval of, to leases, 176, 177 sales, &c, 146 exchange miues or quarries, power of ecclesiastical corporation to, 146 farming leases, mines to be excepted on, 178 incidental rights and easements, power to grant, 176 Isle of Man, non-application of, to, 176 n. , 520 n. land tax, mines, &c, in lauds sold for redemption of, do not pass, 146, 147 lease, ecclesiastical corp. may in gen., ace. to approval of Eccl. Comma., 176 leases under 14 & 15 Vict. c. 104, 177 n. licences, power to grant, 177 lord of manor, to copyhold lease, consent of, necessary, 1 77 palace of bishop, enjoyment of, not to be prejudiced, 177 partition mines or quarries, power of ecclesiastical corporation to, 146 patron, consent of, to sale or lease, 146, 177 proceeds of sales, &c, application of, 147 renewal of leases, 176, 177 under 23 & 24 Vict. c. 124, 178 n. rents, application of, 177 sell mines or quarries, power of ecclesiastical corporation to, 146 surrender of leases, 176, 177 EJECTMENT. (See Establishment of Title ; Forfeiture ; Recovery of Possession. ) EMPLOYER. (See Employers and Workmen Ad; Employers' Liability Act; Factory and Workshop Acts ; Regulation Acts ; Truck Act.) liability of, for trespass of minerals by servant, 530 EMPLOYERS AND WORKMEN ACT, 1875, meaning of workman in, 610 EMPLOYERS' LIABILITY ACT, 1880, act or omission of person in service of employer, when injury from, 611 compensation, amount of, under, 612 condition of ways, works, machinery, &c, where injury from, 611 contract himself out of Act, workman may, 613 County Court, action to be brought in, 612 employer, meaning of, 610 knows of defect, &c, and fails to give notice, where workman, 611, 612 negligence of person in service of employer, where injury from, 611 servant, when employer not liable for, 612, 613 workman killed or injured, 613 notice in writing of injury, 612, 612 n. ' person who has superintendence entrusted to him,' meaning of, 610 personal iujury, remedy for, 611 procedure, 612 workman, meaning of, 610, 611 ENFORCEMENT OF JUDGMENTS AND ORDERS. (See Rarmotc Courts ■ stannaries Courts.) INDEX. 047 ENFRANCHISE. (See Enfranchist m nt Jets ; Enfranchi u nts.) Duke of Cornwall may, as to Duchy lands, 145 life, teuant for, may, under Settled Land Act, 130 and separately deal with surface and mines and create easemeuts, 130 trustees may with sanction of Court under Conf. Saks Act, 134 past enfranchisements made by, confirmed, 133, 134 ENFRANCHISEMENT ACTS. (See Enfranchise ; EnfrancM agree as to commutu. or enfrchnt., power of lords and tenants to, 14S, 140 agreed on, commutation may extend to mines, if, 36, L49, 182 agreements for com. or enfr. may be in consideration of right to mines, 140 compel enfranchisement, lords or tenants may, 140, 150 compulsory enfranchisement not affect mineral rights without consent in writing, 30, 150, 1S2, 203 disputes, power of Commissure, to determine, uot affect mineral rights, 149 easements to lord for mineral purposes, tenants may grant, 1 (!) except mines on enfranchisement, form of power to, L49 n. support under, where uot expressly provided for, 297, 298 ENFRANCHISEMENTS. (See Enfranchise : Enfranchisement Acts.) property in ms. or qs. under volunt. , primS facie iu psou. obtaining, 3G vendor of, need not explain as to property in mines, &c, 1S9 ENGINEMAN, attendance of, under Regul. Acts, 587 ENGINES, malicious injuries to, 548 — 550 EQUITABLE WASTE. (See Life or Years, Tenant for ; Mortgage ; Simple, Tenant in Fee; Tail, Tenant in.) ERECTION, malicious injury to, 548 — 550 what is an, 540 ESSENCE, TIME OF THE, always in mining contracts, 195 ergo either party may fix reasonable time, and on default rescind, 105 ESTABLISHMENT OF TITLE. (See Limitations, Statutes of .) proceedings for, always maintainable as to mines, 524 uuder Land Regist. Act, 524 ESTOVERS, tenant for life or years may dig for, in new mine or quarry, 51 ETON. (See Univ. and Coll. Estates Act.) EVIDENCE. (See Custom (Workings) ; Cost-book and Stannary Companies; Dale of Cornwall ; Gloucestershire Rights, &c. ; Regul. Jets; Tin-bouna covenant, adinissibdity of evidence to explain local meaning of, 233 u. customary right of copyholders to work in their tenements, c. of, 99, 100 language amongst miners, admissibility of evidence as to use of, 214, 214 n. profits a prendre, evidence as to, 93, 90. (See Custom ; Prescription.) wastes, custom as to, 152 EXAMINERS, for granting certificates to managers uuder Regulation Acts, 577 reports of, 605 EXCEPTION, distinguished from reservation, 11, 135 mine is subject-matter of, 11 right of way may not take effect as, 355 n. 648 INDEX. EXCHANGE, Crown lands, 145 Duchy of Cornwall lands, 145 Ecclesiastical Leasing Acts, 146 except mines on, form of power to, 135 n. Iu closure Acts, 158 life, tenant for, may under Settled Land Act, 130, 131 and separately deal with surface and mines, and create restrictions and easements, 130, 131 undivided share iu mines, &c, 131 trustees may, with sanction of Court under Couf. Sales Act, 134 past exchanges made by, confirmed, 133, 134 EXCHANGE, BILL OF. (See Bills of Exchange Act; Cost-Book and Stannary Companies ; Partner. ) EXCLUSIVE LICENCE. (See Licence.) EXECUTION. (See Barmotc Courts ; Cost-Book and Stannary Companies ; Stan- naries Courts.) EXHAUSTION. (See Dead Bent ; Income Tax; Bating.) EXPENDITURE. (See Acquiescence ; Delay.) by surface-owner not give him title to mines by prescription, 527 EXPLOSIVES. (See Explosives Act, 1875.) restrictions as to use of, in mines, 590 exemptions from restrictions, 590, 591 EXPLOSIVES ACT, 1875, application of, to mines, 598 EYAM, 500, et seq. (See Derbyshire Rights, &c.) claim by owners of ancient freeholds in, 502 n., 503 n. FACTORY AND WORKSHOP ACTS, non-textile factory, what iucluded in, 600, 607 provisions of, as to employment of girls, 607 taking meals and meal hours, 607 working overtime, during the night, &c, 607 workshop, what included in, 607 pit-banks adjacent to shaft of mine, 607 cpuarries, 607 FAIRLY and regularly, effect of covenant to work, 217 workable, effect of covenant to work, so long as mine, 219 wrought, meaning of, iu stipulation that rent should cease, 243 FALSA DEMONSTBATIO. (See Uncertainty.) FAN, returns as to, under Regulation Acts, 60."> FARM TIN, 432 FAULTS, effect of existence of, ou covenant to work regularly, 217 existence of unknown, is no excuse for non-payment of dead rent, 215 lessee should stipulate for deductions in respect of, 217 FEE SIMPLE. {See Simple, Tenant in Fee.) mines may be held for estate in, 27 FEE TAIL. (See Tail, Tenant in.) mines may be held for estate in, 27 INDEX. 649 FELONY. (See Larceny ; Malicious Injuries ; Eegul. Acts; Setting Fire ; Wai FEME COVEPvT. (See Dowress; Jointress.) FENCES. (See Derbyshire J!i, L06 waut of, uear, when a uuisauce, 270 lessor should stipulate as to, "23.") shaft, obligation of mine-owner who siuks, to keep it fenced, 285 surface owner should, ou severauce, stipulate as to, 20S FENCING. (See Fences; Regulation Acts.) FIDUCIARY RELATIONSHIP, tenant for life probably in, towards trustees with respect to purchase, 193 FINE, meaning of, in Rating Act, 187-4, 560 FIRE. (See Gas ; Sett ing Fin . ) FIRE CLAY, a mineral, 12 FIRE ENGINES. [See Fixtures.) FIRM. (See Partner.) FIXTURES. (See Derbyshire Rights, die.) construction of covenants as to removal of, 246, 247 custom determining devolution of, as realty or personalty, 267 inquiry if necessary, directed, 267, n. drowning, in absence of covenant, lessee may remove, uotw. prob. of, 24' i tire eugine erected by tenant for life or in tail, devolves as personalty, 267 injunction against infringing covenant to deliver up, 246 lessee, coveuant by, to deliver up at end of term, &c., 246 oppressive covenant as to, 247 running with land, covenant as to delivering up, &c. , 246 gait pans erected by tenant in fee devolving ou heir, 267 'ways and roads,' meaning of, 247, 247 n. FLANGES, 587, 588 FLINT, a mineral, 12 custom under agricultural lease empowering lessee to appropriate. 17, 54 (Tucker v. Linger, affirmed, 8 App. Cas. 508) FLUCTUATING. (See Speculatwe, Ac,) FOOTAGE RENT, distress lies for, 225 reservation of, 221 FORECLOSURE. (See Cost-Book and Stannary Companies; Mortgage; Partner.) FOREST OF DEAN. (See Gloucestershire Rights, 4 resolution at meeting with special notice, 453 sale of forfeited shares and position of purchaser, 454 statutory notice, 453 650 INDEX. FOKFEITUEE— contintted. cost-book and stanuary companies, for nou-paymeot of calls in, strict pursuance of conditions of, necessary, 454 transferee not liable to, where calls payable by transferor, 4C8 vendor in pur's, action to rescind for fraud, loss from, is on, 405, 466 Derbyshire rights, courts and customs, consolidated veins, 514 n. effect on right to remove buildings and machinery of incurring, 515, 516 for nou -contribution to expenses, 517 recovery of possession, 517 non-freeing, 513 recovery of possession, 513 non-working, 513, 517, 518 recovery of possession, 517 selling or removing ore before measurement for lot and cope, 513 trespass in third meer, 513 recovery of possession, 513 Gloucestershire rights and customs, priorities upon, 495 relief against, 492 qu., effect of s. 14 of Conveyancing Act, 492 n. rent or royalty, for non-payment of, 492 rules, for non-observance of, 492 service of notice, complete on, 492 lease, clause of, usually inserted in, 241 clause is for benefit of lessor only, 241 construction of clause, 241 lessor may, subject to Conveyancing Act, elect to avoid lease, 241 must do act showing intention to avoid, 241 Conveyancing Act, provisions of, as to, 241, 242. (See Conv., d-c. Act.) Cornwall, for non-working for year and day of lease in, 4 10 prompt to enforce, lessor should be, 242 recovery of possession, action for, lies for mines, 241 relief within six months for non-payment of rent, 242 licence, clause of, not applicable to subject-matter of licence as such, 254 of frequent use in, 254 acts, exercise of right of, inferred from, 255 clause is for benefit of licensor only, 254 construction of clause, 255 licensor may, subj. to Conveyancing Act, elect to avoid licence, 254 must do act showing intention to avoid, 254, 255 Conveyancing Act, provisions of, as to, 255 Cornwall, for non-workiug for year and day of licence in, 440 strict pursuance of conditions of, necessary, 255 waiver of, 255 wrongful re-entry, action for, 255 Stannaries Courts, declaration of, in, for non-working, 421 tin-bounds, 431, 432, 438 FORGERY. (See Rccjulativn Acts. ) FOSSILS, meauing of, 14, 19 metallic minerals, usually applicable to, 19 stones, may apply to, 19 FOULING WATER. (See Water.) FOUND, meaning of, 209 n. FOUNDER, 509, 510 INDEX. ,l ''' ™™£pl«ion of Factory ami Workshop Acta to, 606, 607 ^"lo^to j5?L himself, effect of purchaser, 199 rescission, purcn lorfeite( i for non-payt., losson vend., 465 466 where pur. may have, tho. he has sold part oi shares, 465 . riot have, 465 Rnecitie performance barred by, 400 , cost-Sook ami stannary companies, transfer of shares in, when a, H>9 effect of acquiescence by company, 40.1 nominee, purchase of cost-book shares in name of, 469, 470, 4,0 u. cost-book company, conversion of, into hunted company, 44, n. origin of, 440 SiK admissibility in, of bno* purport^ to be former cb.. 44,; „. knowing real prospects of company, effect ot, +«> prospectus ancl rules, effect of variation ^ between, 446 prudence, effect of failure to act with, 44o rescission of contract to take shares, 440 Crown officials for fraud, setting aside contract by. 4! b dead rent, fraud to evade payment of, 216 enforcing contract to sell or lease, fraud a bai to D-, km nduchy relation to vendor, effect of purchaser being in a 193 general statements as to prospects of mine, effect of 199, -00 iron manufactures, fraud by persons engaged in 610 n imitations, effect of, in preventing operation of Stat it of, 543 measure of compensation, when compensation decreed, JH not being misled, effect of plaintiff, 193, 1JJ prompt S, enforce remedy, injured person ^ust ^e |00 purchaser concealing existence of mine no fraud, Ui 1 value of mine no fraud, 194 obtaining improper access to mine, effect of, 194 using contrivance or word or gesture, effect of, ,194 receiver and manager, appointment of, ou application of pui. in possn., -00 rescind, right to, for, 199 . C n.fipp effect of in selling undermined, l l M . J u boundi' in Cornwall,°lraud by co-adventurers m, 433 tin oouncun B , d f ul hy c0 -adventurers in, 438 uevuu \ ,i i ^ + . -lin.vpp for brnu'in" to bank. Dob immaterial that purchase not at undervalue, 193 walling or stacking coal, &c, 545 n. ™"£J5?E2. « i— T. -tract by, must be in writing, .84 lease underta king, when mine held on, seeus, 463 licence, where mine held on, «*»* contact not within s. 4, 40,4 narol contract for transfer generally good 404 ^sumption that cost-book shares not interest in land, 4G4 minerals, contract for sale of, within s. 17, 185 although not severed, 185 part performance takes case out ot, 1W partner in working, contract by, within s. 4, 184 ^^o^ 1 "™, and merchandize/ when mine, or quarry in trust for Undertaking, shares in, not, within s. 1/, 185 _. parol contract, when mine or quarry in ^g^SSSfaK 4, 1M trust for individuals, where mine or quarry held on, shai c v, itmu , undertaking, where mine or quarry held on, secus, 164, 185 652 INDEX, FRAUDS, STATUTE OF— continued. profit and loss, not affecting ownership of land, contract to sliare, 184 ratification may bind, when contract parol, 184 sole owuer of mine or quarry, contract by, within s. 4, 183 coutract to demise mine on royalties, and divide royalties, 183, 184 offer mines, and parol offer, 184 FREE MINERS. (See Gloucestershire Rights, not bound until grant, 483 application for gale, priority of, determines right, 49o apportionment of moiety rent between private owners of inclosed lands, \S I arbitration. (See Arbitration.) assignees of free miners, renewals of (marry leases to, 491, 492 Awards, Coal, Iron, and Quarry, 480 m, 481 n. inaccuracy of, as to metes and bounds, 480 n., 484 plans and schedules to, 481 n. rules under, 481 n. barrier, duty of coal galee to leave, 490, 498 licence to work coal, 496, 497 Blakeney, claim of lord of manor of, as to gales, 479 n. boundaries, alteration of, 496 disputes as to, 496 injury to, 494 protection of, 490 questions as to, are between different miners, 496 n. buildings, erection of, 494 removal of, 490 Commissioners of Woods, enrolment of free miners by, 482 rights of Crown represented by, 179 County Court, recovery of rent or royalty in, 486, 488, 489 Courts, ancient Miue Law, 482 u. covenant, action of, for payment of rent or royalty, 4S6 to enforce rules, 491 Crown and free miners, mutual rights of, 482—493 iuterests of, represented by Gaveller, 479 space created by workings belongs to, 483, 484 customs almost entirely regulated by statute, 480, 480 n., 4S1 n. as to various inclosed lands regulated without ref. to stat. 4S0 n. qu. rights of free miners in respect of such lands, 481) u. damages for non-compliance with rules as to working, 499 dead rent. (See, under present title, galeagi mils and royalties.) death before grant of gale, 495 delay fatal to enforcing contract, 491 Deputy Gaveller. (See, under present title, gavelh r.) devolution of gale or lease, 491 discontinuance of workings, 490 distress, rents or royalties recoverable by, 486 division of gales, 493 dwelling houses, erection of, in inclosed lands, 488, 494 engines, discontinuance of working of, 490 engraved plans, marking on copy of, 484, 488 enrolment of free miners, 482 substituted rent, 486 entry and enrolment of gales, 483 leases, 4S7, 488 Liberties and liceuccs, 189 evidence, extracts from register admissible in, 482 fee simple, galee has estate in, 483 fences, duty to set up, 490 injury to, 490 fifth man, ancient right of Crown to put in, 483 n. fire engines, liberty to erect, 488 Forest of Dean, ownership of surface of, 479 Forester not entitled to gale Crown quarries without accounting, 01, Jo forfeited gales, regales of, 492 forfeiture. (See Forfeiture. ) fraud as to agreement to pay larger thau reserved rent, 486 654 INDEX. GLOUCESTERSHIRE RIGHTS AND CUSTOMS-contfnu«2. free miners, meaning of, 481 mutual rights of, 405 — 499 right of, to gales, 482, 4S3 freehold land, injury to, 494 gale, exhausted, when treated as, 496 may be held jointly, 483 meaning of, 482 nature of, 482, 483 new, uo right to, unless one of previous exhausted, 496 origin of word, 482 n. three, no right to more than, 495, 496 galeage rents and royalties, 485 arbitration, as to amount of, 485 Commissioners, powers of, as to confirmed gales, 4S5 n. enrolment of substituted amount of, 486 forfeiture for non-payment, 492 Gaveller proper person to sue for, 486, 487 iuclosed lauds, right of private owner of, to moiety of, 494 mode of recovery of, 486, 4S7 non-liability to pay for certain periods or purposes, 485 personal obligation to pay, 486 revision of, every twenty-one years, 4S5, 486 short working of any year may be made up in subsequent year, 485 times wheu payable, 485 Gaveller, interests of Crown represented by, 479 not proper party to action to restrain grant of sale, 496 proper person to sue for galeage rents and royalties, 486, 487 Hundred of St. Briavels, ownership of mines and quarries in, 37, 479 surface of, 479 impede or injure workings, duty not to, 497, 498 inclosed lands, dwelling-hcuses, erection of, in, 488, 494 gales in, 482, 483 meaning of, for compensation for surface damage, 494 right of private owner of, to moiety rent, 494 steam engines, erection of, in, 4SS, 494 iuclosures, injury to, 490 information for recovery of rent or royalty, 487 injunction to enforce compliance with rules, 491, 499 mandatory, 499 restrain grant of gale, 496 parties, 496 inspect plans and workings, right of Gaveller or Commissioner to, 4S6 interrupt other workings, duty not to, 497, 498 lease, clay or sand for twenty-one years, of right to get, 4S7 entry and enrolment of, 487, 488 kilns and burning clay for twenty-one years, of open land for, 487 quarries for twenty-one years, of, 4S7 re-entry on non-payment of rent, condition for, 487 rent must be free of taxes, &c, when, 487 recovery of, in County Court, 488 waste laud of forest for thirty-one years, of, 487 liberties and licences not subject to rents or conditions, 488 in iuclosed lauds, 488 levels, drifts, drains, cuts-out, watercourses, pits, shafts, and pit- heaps, 488 railroads and other roads, drains, and spoil banks, 4SS steam and fire engines, 488 liberties and licences subject to rents or conditions, 488, 489 pits, shafts, levels, roads aud easements, 4S9 compensation to persons injured, 4S9 entry and enrolment, 489 recovery of rent in County Court, 489 restoration of laud after user, 489 lot, determination by, of right to gale, 495 machinery, right of surrenderor to remove, 493 mandamus against Gaveller for delay, &c, iu grant of gale, 495 INDEX. 655 GLOUCESTERSHIRE RIGHTS AND CUSTOMS- ,' /. metes and bounds, 484 awards of 1841, inaccuracy of, as to, 484 deliued, how sometimes, 484, 484 u. „i„„_ t s i entry in Surf. Bound. Book and marking on copy engraved plan., 484 minerals, right of surrenderor to remove, 493 Sake xs to agreement to pay larger than reserved rent 486 mortgagee, liability of, for non-compliance with rules, 499 mortgagor, liability of, for non-compliance with rules, 499 nunc pro tunc entries of transfers. 491 u. parol agreements to pay larger than reserved rent effect of, 486 parties to proceedings to restrain grant of gale, 49b petition of right to restrain grant of gale, 49b plans, a duty of galee to make, and allow inspection of, 486 ' to awards, inaccuracy of, 481 n. priority of application for gale, 495 . .,. , ,„- private owners and free miners, mutual rights of, 494, 4.... property, rights of, 479 railroads, right to use, 488, 497 rateability of galee, 483, 564 regales of forfeited gales, 492 registration of free miners, 481 privileges not exerciseable before, 4t« refusal of, by Gaveller, 482 anneal from refusal, 4S2 . refusTof Gaveller to register transfer, 491. (See Transfer.) regrant of divided gales, 493 . surrendered gales and quarries, 493 roads, injury to, 494 interference with, 4b9, 4S«J royalty "(Sef under pre^nt title, galeagcrents ^ royalties.) rules, Coal, Iron, and Quarry Awards, under, 481 n Commissioners of Woods, powers of as to, 481 n. obligation to observe, is personal 49 remedies for non-compliance with. 4Ji, 4jj special, as to working, 490 Speech House, to be hung up in, 481 n. working, as to, 4S9— 491 schedules to awards, inaccuracy of, 481 n. . Sessions, appeal to, from refusal of Gaveller to register, 482 time for, 482 n. shafts, sinking of, through overlying gale, 49/, 4J8 compensation as to, 49S n. space created by workings, property mm Crown 483, 4S4 stamps, exemption of Crown instruments fajj. «» steam-engines, erection of, in inclosed land ±88, * 94 notice as to discontinuance of working of, 498, 49J support, action for withdrawing, 495 Surface Boundary Book, entries in 484, 488 surface, compensation for damage to, 494 damage, meaning of, 333 n., 494, 4Jj of Forest, ownership of, 479 _ Hundred, ownership of, 479 surrender. (See Surrender. ) transfer, 491, 492. (See Trantfsr.) trespassers, punishment of, in lorest, 499 ^S^K-t S not mention existence of customary rights, 189 656 INDEX. GLOUCESTERSHIRE RIGHTS AND CUSTOMS— continued. verderers, appeal to, from refusal of Gaveller to register, 4S2 time for, 482 u. power of, to remove uuuecessary buildings, 490 waste, duty of galee or lessee uot to commit, 489 water, duty to prevent escape of, 413 n., 498 liability as to, of dip galee, 49S higher coal galee, 498 iron galee, 498 notice as to discontinuance of working of engine, &c, 498, 499 will, devolution of gale or lease under, 491 working, commencement of, 489 coutiuuance of, 489 duty not to impede or injure, 497, 498 mode of, 4S9 rules as to, 4S9— 491 special, 490 space created by, property in, in Crown, 4S3, 484 GOD, ACT OF, 412, 413. GOLD. (See Royal Mines.) GOLD FIELDS ACT, operation of, in New Zealand, 522 n. GOODS, WARES, AND MERCHANDIZE. (See Frauds, Statute of.) GOTTEN. (SeeW.) meaning of, 209, 219 n., 220 n. GRAND JURY. (See Derbyshire Rights, tfce.) GRANT. (See Conveyance; Lost Grant.) construed most strongly in favour of grautor, maxim as to, now absolute, 296 n. new mines lie in, 202 open mines lie in, 202 GRASS GROVES, tithe-ore due by custom in, 520 GRAVEL, a mineral, 12 pit a quarry rather than a mine, 5 GREAT BROUGHTOX, right of property iu mines and quarries in manor of, 34 n. GREENWICH HOSPITAL ACT, Admiralty may under, lease for forty-two years, 175 rent, 175 GRIQUALAND WEST, mining rights iu, 522 n. GROSS VALUE, meaning of, in Rating Act, 1874, 560, 561 GUARDIAN. (See Infant. ) GUIDES, 587 GUNPOWDER. (See Regulation Acts.) HARBOUR COMPANIES, may acquire mines, 86 not, prima fuck work mines except for temporary purpose, S6, Si wrongful working of minerals, not liable, semblc, for, 530 INDEX. 657 HARD LABOUR. (See Imprisonment ; Regulation Acts.) HARTINGTON, 500 ct seq. HAVENS AND PORTS of Cornwall and Devon, protection of, 435, 439 HAZARDOUS. (See Speculative, &c.) HEIR. (See Apportionment ; Apportionment Act ; Fixtun and persoual representative, rent passes to heir, as between heir, 265 unpaid instalments are sometimes a debt and not rent, 2 >■">, 266 remainderman, ore-rent goes to remainderman, as between heir, 266 HELSTON-IN-KERRIER, 38 HELSTON-IN-TRIGG, 38 HEREDITAMENT includes mines, 21 HIGH PEAK. (See Derbyshire Eights, dbc.) HIGHWAY RATES, rateability of mines and quarries to, 558 HIGHWAYS. (See Roadways ; Tin-Bounding.) General Highways Act, property in mines under roads under, 29 provisions of, as to taking and carrying materials for roads, L05, 107, 371 Highways & Locom. Amend. Act, property in mines under roads under, '2il Highways Turnpike Acts, property in mines under roads under, 29 provisions of, as to taking and carrying materials for roads, 104, 105, 371 parties to action to restrain injury from digging gravel pits, 105 Limitation Act. title to mines, &c, may be acquired against surveyors of, under, 524, 525 materials for, taking, 104, 107 nuisance, brick-burning near, when a, 272 calcining or burning iron, lime or clay, or making cokes near, a, 273 sinking pits or erecting machinery near, a, 'I'M waut of feuciugs near, when a, 270 repairs from land of other person, surveyors, &c, of, cannot by custom take stones for, 91 HORNS, 587, 5S8 HOUSE. (See Buildings.) HUNDRED OF HIGH PARK. (See Derbyshire Rights, &c.) HUNDRED OF ST. BRIAVELS. (See G thire Rights, die) HUSBAND. (See Married Woman.) ID CERTUM EST QUOD CERTUM REDDI POTEST, 225, 226 IDIOT. (See Lunatic.) IMPEACHMENT OF WASTE, WITHOUT, 55, 56 IMPLIED GRANT. (See Support ; WaUr.) G58 INDEX. IMPRISONMENT. (See Regulation Acts. ) for malicious injuries, 540 — 550 wrongful abstraction of minerals, 545, 546 IMPROVEMENTS WITH CAPITAL MONEY, 132 •IN OR UNDER,' construction of, in Settled Land Act, 130 n. INCLOSED LANDS. (See Gloucestershire Rights, dkc. ; Tin-bounding.) INCLOSURE ACTS. (See Merton, Statute of; Roadways.) compensation for working rights under, 277 doubtful intention to include mines or quarries under, 204 — 206 exchanges, power to except from, right to mines and easements, 158 valuer under, may make, 158 Inclosure and Regulation of Commons, adjustment of rights, 153 application for provisional order, 153 award, 157, 158 confirmation of draft provis'onal order, 155, 156 draft piovisional order, 154 compensation for surface damage, 154, 155 consents of persons interested, 155 valuation of brick earth, 155 statements and conditions to be inserted in, 154, 155 expenses of Act, right to mines in land sold to pay, 156 n. local inquiry, 154 report, 157 twenty years, right to mines under laud inclosed for, not affected by inclosure proceedings, 153 valuer, appointment of, 156 duties and powers of, as to allotments and reservation of mines and easements. 156, 157 inclosure under, property in mines, kc. , when separate from surface and not compensated for, not affected where, 37 Limit. Act, effect of, agst. highw. surveyors to v/hom land allotted under, 525 materials for roads under, 107 'mines and minerals,' meaning of, in, 14, 15 partitions, valuer under, may make, 158 roads set out under, presumption of property in mines under, 28, 29 'soil,' meaning of, in, 21, 22 streams, right to alter course of, under, 277, 384, 385 support under, construction of ambiguous provisions as to, 321, 333-335, 337 right of, when not expressly provided for, 297, 298 effect of clause as to holding mines, &c, iu as full, kc, a manner as if Act not made, 319, 320 surface, power of Commissioners under, to separate mines from, 158 n. right of user of, under, 276, 277 water, easements in l-espect of, under, 276, 403 way for transport and air, rights of, under, 276, 277, 371, 376 working rights under, 276, 277 INCLOSURES. (See Inclosure Acts ; Merton, Statute of. ) parcels and boundaries. (See Parcels.) right of property in mines or quarries in, 37 INCOME TAX, adventurer of company may claim to be charged separately, 556 allowances, 555 'annual value ' applies to measure of taxation, 554, 555 appeals, 556 assessability under 5 & 6 Vict. c. 35, 551, 552 29 & 30 Vict. c. 36, 552, 553 effect of, 553 brick-fields, how assessed, 552 capital which is exhausted or consumed, no allowance in respect of,- 555 withdrawn or diminished, no allowance in respect of, 555 INDEX. INCOME TAX— continued. company acquiring rights and liabilities of previous company, 553, 55 1 compauy of adventurers chargeable jointly, 555, 556 five-year period for mines, ic, under 5 & 6 Vict. c. 35, 551, 552 instalments, where debt or price payable by, no iustal. chargeable, 55 I machinery, allowance for depreciation of, 555 mines, &c, how assessed, 551 — 553 person liable, 555, 556 pits, allowance in respect of sinking, 555 place of liability, 556 plant, allowance for depreciation of, 555 ' possession or interest ' of compauy, meaning of, 554 ' protit received ' applicable to measure of taxation, 554, 555 profits and gains, tax is tax on, 554 property, tax is tax on, 554 quarries, &c. , how assessed, 551 — 553 retainer by person liable to annual payment, 556 uecessary to show liability to tax, 556 ' set up and commenced,' meaning of company having been, 553, .Vil single-year period for quarries, &c, under 5 & 6 Vict, c 35, 551, 552 slate mines assessable as quarries, 5, 552 ' specific cause, ' diminution of profit from, 554 what is, 554 ' succeeded to ' previous compauy, meaning of company having, 554 INCORPOREAL HEREDITAMENT. (See Corporeal.) licence to dig, coupled with grant is, 249, 251 INCUMBRANCES. (See Mortgage.) INDICATORS, 588. INFANT. (See Barmote Courts; Regulation Acts; Stannaries Courts; T Bounding.) power to lease miues of tenant for life under Settled Laud Act, 166 mines of tenant in fee simple I. Will. 4, c. 65, s. 17, 159 co-owner, 159 new and opeu mines, 159 remainderman subject to tenancy by curtesy, 159 subject to executory devise, 159 form of order, 159 n. joint powers of I. Will. 4, c. 05, s. 17, and Settled Estates Act, 160, 163 form of order, 1 63 n . remainder, where infant entitled iu, 160 n., 162 n. Settled Estates Act and Conveyancing Act, 159 Settled Land Act, 160 power to lease mines of tenant in tail I. Will. 4, c. 65, s. 17, 101 Settled Estates or Settled Land Act, 161 form of order, 161 n. power to sell Court, under direction of, 1-7 partner in partnership action, purchase of share of infant by, 139, 140 Settled Estates Act, 130 n. Settled Land Act, 127, 133 n. workings, guardian of tenant in fee or tail in possession, powers of, to work, I I trustees, no power of, to work uew mines, &c, 66 power of, to work open mines, &c, under ( onv. Act, 65, 66 application of produce, 66 INFLAMMABLE GAS, 590 INFLAMMABLE SUBSTANCE (See Regulat 660 INDEX. INFORMATION, for nou -payment of rent for gales, 4S7 INHABITANTS. (See Custom ; Prescription.) INJUNCTION. (See Airways; Copyholder; Cost-Book and Stannary Companies ; Gloucestershire Eights, , --w Bm" of Sale Act, 1878, not applicable to distress for rent, 220 n. boundaries, 213, 214. (See Parcels ) nr . n ^A P f ftr 235 compensation for damage to crops, lease shoi M 1™ £ f or 235 covenant to make runs with land, 23o, Z60 construction— lease or contract, 183 licence, 255 — 257 Conveyancing Act, foSSK I^Sf. not applicable to breach of damages general remedy for breach of covenant to work, 2M dead rent, 215 -218. (See Dead Re ,t.) lessor should always reserve, 214, _lo . deposit of lease not breach of covenant against assignment. I . distress lies for dead rent or royalty or footage rent. 225, 22b nower of, probably not run witn land, — o . drain adjoining mine -"^Jj^ throu^demild mine, lessee may not j"*^*** 8 drainage, lessor should stipulate for covenant to Leave barriers against, .4, d g ' mandatory injunction to enforce covenant 40 no rent primd facie payable for right ..t. - U • - »• of adjoining mine, lessee may .use mine tor, , 71 no rent payable, pri - bt of, 239 reservation of rent for right of, 224. 239 waste, independent of covenant, lessee, who removes barrier, liable for, 2".7 water. (See, under present title, drain; drainag . ng ; and see Water. ) lessor should stipulate for barriers against, 245 waterleaves, lessor should reserve rent in respect of, 223 wayleaves, lessor should reserve rent in respect of, 223 weighing minerals, lessor should sometimes stipulate for covenant as to, 225 win, meaniug of, 219 work, duty to, should be expressly thrown on lessee, 228, 220 no duty because mine leased and royalty reserved, 220 or because of covenant ' in working' to do certain things, 220 liable on covenant, notwithstanding useless expense of performance, 220 liability not specifically enforceable, 229 construction of covenaut, 220 right to, should be expressly given to lessee, 220, 227 working out before end of lease, 244, 245 workings after end of lease, 245, 246 workmanlike manner, coveuantto work in, does not absolve from covenant to work, 220 imply cov. to continuously wrk., 218, 210 not safe substitute for dead rent. 216 evidence to explain local meaning of covenant to work in, 233 n. meaning of covenaut to work in proper and, 238 pits, effect of covenant to work in, on liability to sink, 233 LEASEHOLDER. (See Lease; Life or Years, Tenant for ; Fears, Tenant f-r.) "LEAVE" pillars, effect of covenant in lease to, 336 (Mostyn v. Lancaster, now reported 23 Ch. D. 583) LEGAL WASTE. (See Life or Years, Tenant for.) LESSEE. {See Lease; Life or Fears, Tenant for; Years, Tenant fur.) LESSOR. (See Lease. ) 666 INDEX. LEVELS, malicious injuries to, 547 LIBERTIES. (See Trustee; User.) for which inine.owner should stipulate ou lease, 227, 228 sale, 207, 208 LICENCE, account against equitable owner who enters and works, 254 ■ licensee, 254 immaterial that no right to injunction, 254 acquiescence by licensor in verbal arrangement, effect of, 251 assignment of, 252 bare licence, how created, 251 meaning and incidents of, 251 buildings, liability of licensee to be rated for, 250, 251 construction of doubtful instruments, 255 — 257 deed necessary for legal assignment or demise of, 252 creation of, 251 demise of, 252 Derbyshire custom, accepting licence destroys right under, 509 devolution of, 252 distress not applicable to subject-matter of, 254 Duchy of Cornwall exempt from provisions as to stamps, 257 duration of grant to personal representative, fixing of, 250 exclusive licence, incidents of. 253 exercise and expenditure, effect of, when mere written contract 251 forfeiture of, 254, 255. (See Forfeiture.) Frauds, where mine held under licence, contract as to cost-book shares not within Statute of, 404 incorporeal hereditament, licence coupled with grant is, 249, 251 injunction, licensor always entitled to account irrespective of, 254 intestacy, devolution of, on, 252 iuterest, licence clothed with, incidents of, 251, 252 irrevocable licence, 252 land containing mines liability of licensor to be rated for, 250, 251 lease for a term and then liceuce, grant held to create, 250, 257 year, grant held to create, 257 grant held to create, 255, 256 licence, grant held to create, 250 machinery, liability of liceusee to be rated for, 250, 251 named, licence may be granted to psons. not named in conjn. withpsous., 250 non-exclusive, licence is primd facie, 252 liceusee, rights of, 252, 253 nuisance by licensee, licensor liable for, if licence revocable, 272 not liable for, if licence irrevocable, 272 occupation may entail rateability, 250, 251, 564 'occupier ' within Railways and Waterworks CI. Acts, licensee with grant is, 250 & parol, bare liceuce may be created by, 251 personal representative, 1. coupled with grant may be limited to, 249—251 right of, tore-enter, when grantee discontinued, 250 possession, recovery of, liceuce with grant prob. subj. -matter of actn. for, 249 when licence exclusive, 253 non-exclusive, 252, 253 taking of, effect of, 249, 253 what acts constitute, 249, 253 power to. (See Powers. ) property in mine, licensee has no, 249 property in minerals, bare licensee has no, even after gettiug, 251 but may recover against mere wrongdoer, 251 exclusive liceusee has no, before getting, 253 licensee has no, before gettiug, 249 with grant, has, after getting, 252 soil, licensee has no, 249, 253 uugotteii minerals, licensee has no, 249 rating of licensee, 42, 2.30, 25!, 503, 564. (See Rating.) INDEX. 667 LICENCE— continued. re-entry, 254, 255. (See Forfeiture.) rent, payments iu respect of licence are in nature of, 254 repairs, covenants by licensee as to, run with land, 25 I revocable, bare licence is, 251 revoked by conveyance by grantor, bare liceuce may be, 251 roads, liability of licensee to be rated for, 250, 251 runs with laud, covenant by licensee to compensate for surface damage or to repair, 254 simple, liceuce coupled with grant may be limited in fee, 249—25] stamps, 257 support, withdr. of, by licensee, licensor liab. for, if licence revocal ' not liab. for, if 1. irrevo suiface damage, covenant by licensee to compeus. for, runs with land. 254 term of years, licence coupled with grant may be limited for, 249 251 trespass, right of exclusive licensee to maintain. 253 non-exclusive licensee to maintain, 253 use and occupation, where liceuce may be subject -matter of, 249 Uses, election by licensee that liceuce shall operate under Statute of. 250 water, licensee may have right by prescription to prevent diversion of, 392 will, grant held to create tenancy at, 257 transmission of, by, 252 written contract to grant, where action lies for breach of, 251, 252 year to year, grant held to create tenancy from, % 2'u LIEN. (See Co-owner : Cost- Book and Stannary Companies ; Life or Pi for; Mortgcujc ; Partner.) LIFE OR YEARS, TENANT FOR. (See Devolution ; Fixtures ; I Mines or Quarries ; Settled Estates Jet ; Settled Land Act.) fixtures and moveable effects. (See Fixtures.) lease, contract by, to grant, enforceable to extent of iuterest, 162 disaffirm his, may not, 162 donee of power to grant, usually made, 168, 109 doubtful propriety of practice, 169 no primA facie power to, except under statute, 162 statutory power to grant, 102—167. (See Settled Estates Aet ; S Land Act.) lieu of, for expenditure, 56 possession of containing chamber in, 33, 70 land containing miues or quarries iu, 32, 52, 70, 533 mines or quarries in, 33 uusevered minerals in, 33 property of above iu reversioner or remainderman. 32, 33 immaterial as to uusevrd. minerals, that tenant for 1. or y. may wrk., 33 purchasing from trustees of settlt. prob. bound to disclose existee. of m., 193 sale, powers of, as to, 129— 133. (See Settled Estate user, right of, as to, 70, 71. (See I' Workings (See Campbell v. Wardlaw, 8 App. Caa. 641.) account against stranger, tenant for life or years may have, 533 at instance of tenant for life in remainder, 57 trustees to pres. cont. rems., 57 for equitable waste, 114 legal waste, persou with right of property may have, 56, 57 'no injunction, no account, never applied to mines, 56, 57 form of, 57 n. acquiescence and expenditure, may bar relief against, 63 may bar relief against reversioner or remainderman, 65 'all royalties,' construction of, 48 appropriation of minerals removed tor improvements, right of, 55, (id u. assignee in same position as original lessee, 52 continue wrongful workings, bar to remedy gives no right to. 63 contrary inteution in settlement disentitles, to workojien mines. 4S, 49 entitles, to work new mines. 5.". will may entitle to work notwithstanding duary clause, 49—51 curtesy, right of tenant by, to work, 52 «V,.s INDEX. LIFE OR YEARS, TENANT FOK-amtinued. "W orkings, customary right of meliorating waste under agricultural leases, 54 Tucker v. Linger affirmed, S App. Caa. 51 damages for equitable waste, 64 legal waste, person with right of property may have, 56 measure of, 5S death of, remedy not barred by, 57, 5S deferred, no right of, to work, merely because work. shd. not be, 54 n delay may bar remedy for legal waste, 63 destroy field, no right of. to, although without imp. of waste, 63, 64 dowress, right of, as to working, 48, 52 when reversioner or remainderman works, 65 equitable waste, no right of, to commit, tho. without imp of w 63 64 estovers, right of, to dig for, 51 executory trust, right of person claiming under. 5.3 n. dints, customary right to appropriate in agricultural lease, 54 (Tucker v. Linger affirmed, S App. Cas. SOS) forfeiture does not now lie against, 56 n. ground landlord may have injunction to restrain waste, 61 improvement of land, right of removing turf or stones 'for, 54 55 improvements authorised by S. L. Act, workings for purposes of, 132 no allowance for, in measure of damages, 5S injunction for equitable waste. 64 ground landlord may have, 61 interlocutory, seldom granted, where working commenced, 61, 62 life, immediate remainderman for, may have, 61 'no injunction, no account,' never applied to mines, 51 remainderman or reversioner may have, 61 subsequent remainderman for life may have, 61 threat to commit waste entitles to, 61 trustees to preserve contingent remainders may have, 61 form of, 61 n. interest at 4 per cent, allowed against " - not allowed from period" before death of. " - intermediate termor receiving rents uuder prior subdeases, 55 Ireland, waste in, 62 n. Irish leases, 46. 47, 49, 51, 52 notice to quit under, with view to work, 65 jointress, right of, as to worki: . leased where property, and convertible to no other use, lessee mav work, 53, 227 legal waste, workng of new mines or quarries by, is, 52 remedies for, 56 — 61 Limitations, Statute of, a bar to remedy for equitable waste. 64, 64 n. '■:, runs from death of wrongdoer, and six years a bat suspension of running of, 62 n. a bar to remedy for legal waste, 62, 63 generally runs "from severance, and 6 years are bar, 62 . . where w. leg. but former remedy inequity, 62, (J3 long term, existence of, immaterial as regards waste, 52 enlargement of, 26, 32 lunatic, workings by, measure of damage for legal waste. meUorating waste, right of, to commit, 54 custom., 54 other cases, 54, 55 no right, on mere assertion, that it will improve, 55 new mines or quarries, gener fade disability of, to work 51 (See Quarries.) inquiry, if nee. to ascertain fact of opening, 51 n.. 52 n. form of, 52 n. right of, to work, if without imp. of waste, 55 INDEX; LIFE OR YEARS, TENANT FOR— con/ Workings, aixl to appropriate severed minerals, •" form of enabling power, 55 n. onus of proof, when fact of being open disputed, 47 open mines or quarries, general pn tight of, to work, 40. OjKii Mines or Q and previously cut turf, 46 and to appropriate severed minerals, 40. 266 immaterial if settlor testator whether trustees appointed. HI proceeds of wrongful workings, mode of dealing with, equitable waste, 64 legal waste, 58 — 61 where person in esse entitled to inheritance, 59 no person iii esse entitled to inheritance, 5S, 59 form of enquiries and accounts, Oh n. owner of inheritance a wrongdoer, On. DO n.. 01 adopts wrongdoing, 01 trespass, 538, 539 where tenant for life or years entitled to work. ". - not eutitk-d to work, •"■:,-. 539 property, remedies where injured person has right of. 50, 57 rebuttable, presumption of right of, to work open mines, 48 recover miuerals, action to recover, by person with right of propert remainderman for life may have account. 57 injunction, 61 remainders, trustees to preserve, may have account. 57 injunction remedies for improper workings, 56 — 64 renewable for ever, rights of tenant for lives or years. 52. 53 rents or royalties may be received by, of open mines, or quarries. i7 repairs, no allowance for, in measure of damagi resid. gift in will, no right of, to work open miues comprised in. 49 reversioner or remainderman may Lave account or damagi action to recover minerals injunction against, 61 remedy agaiust trespasser. not entitled to work, 64 if he works dowress may have third of income, 65 ordinary tenant for life may have whole of income, sale of minerals removed for improvements, right of, doul tfuX 55 sales of open mines or quarries, proceeds of, may be received by, 47 Scotland, law of, as to oper. mines, 48 n. (See Campbell v. Wardlaw, 8 App. Cas. 641.] Settled L. Act, wrkngs. for ppses. of improvements authorized by, 132 some ms. open and others new, right of wrkng. underlease, where, 53, 227 stones, right of removal of, for improvement of land, 54, i>o threat to commit waste, injunction may go upon, 61 timber cases, how far applicable to miues, 54 n. trade, mines a species of, 57 trespass, measure of damages how far determined by pples, appke. I reversioner or remainderman may have remedy upon, 533, tenant for life or years may have account upon, 533 against stranger, 52, mode of dealing with proceeds, 538, 539 trustees sell land exceptiug mines and purchase mines with proceeds, right of, where, 133 to pres. contin. rems. liable, if conseutto impper. wrkngs.. 57 n. use, right of, to dig for personal, 51 vendition, waste by the, 55 waste. (See, under present title, equita waste; rating waste.) ' with all mines,' effect of leasiug land. 53 settling land. 5:;. 54 without impeachment of waste, right of, to work new mil and to appropriate severed miuerals, 55, 56, 266 form of enabling power, o^ n. 670 INDEX. LIME-BURNERS, traders within Ir. Bankruptcy Act, 259, 261 LIMESTONE, worked underground is mine rather than quarry, 5 LIME WORKS. (See Nuisance.) LIMITATIONS, STATUTES OF. (See Prescription. ) adverse possession, what acts constitute, 524 — 527, 532 analogy of, in mining property, Court goes beyond, 121 to, abandonment for six years may bar claim to account, by, 120 bargain and sale, running of, where teuancy at will by entry under unen- rolled, 526 conscience, application of statute to proceedings in Court of, 543 continuing trespass, account not carried back beyond six years, where. 543 covenants for title on sale of surface and subsistence of mining lease, opera- tion of, where, 210, 211 death of wrongdoer who commits waste. (See Life or Years, Tenant for.) dilapidations, action for, 81 discontinuance, meaning of, 527 discovery of trespass, stat. only runs from, where prev. discov. imposs., 543 Duke of Cornwall, claims of, to minerals, when barred by, 529, 530 expenditure by surface-owner does not give him title to miues under, 527 fraud and concealment, account carried back beyond six years, where, 543 galleries, effect of surrounding mine or quarry with, 526, 527 inclose surface, not nee. to, to acquire title to mines or quarries under, 526 intentional fraud, account carried back further than six years, where 543 interesse termini for purpose of, semble lessee witht. possn. has not mere, 529 lessee, not necessary semble for, to enter within 12 years, if lessor not iu adverse possession, 528, 529 immaterial that lessee without possn. under St. of Uses, 52S, 529 life or years, tenant for. (See Life or Years, Tenant/or.) mortgagee improperly working cannot plead, S5 right to plead, when wrongdoer acts under authority of, 543 neglecting to use reasonable diligence, effect of, 543 non user by miueowner not give surf.-owner title to mines under, 527, 52S immaterial that mine-owner has permitted expend, by surf.-owner, 527 onus on wrongdoer to show what part not taken within six years, 543 overlying seam, no presumption of possession of underlying seam from statutory title to, 527 part of entire solum, title to mines or quarries as, may be aoqrd. under, 524 possession, statute only applies where mine owuer out of possession, and other person in, 528 public bodies, title may be acquired under, agaiust, 524—526 purch. and exceptn. frcm sale prob. on sim. footing as to non-user, 528 rents in kind, where wioagdoer demises mine reserving, statute runs from receipt, 544 separate subject-matter, title to ms or qs. as, may be acquired under, 526 immaterial whether claimant eotitled to surface or not, 526 support, a bar after six years to action for withdrawing, 353 no bar to action for withdrawing, until six years after damage, 288 probably no bar against previous excavator who weakens, until six years after damage from present excavation, 300 trespass, a bar after six years to action for. 542. 543 trespasser acquires no title to mine under, by working into it for 12 yrs. , 529 waste by teuaut for life or years, operation of, where, 62 — 64 wrongful entry only gives title to part of which physical possn. taken. 527 LIQUIDATOR. (See Winding-up, &c.) LISKEARD, 38 LITTON, 500 ct seq. LIVERY OF SEISIN, formerly essential to conveyance of open mines, 232 u. INT'KX. 671 LOCAL AUTHORITY. {Bee Public Health .let.) LOCAL BATES, rateability of mines and quarries to, LOCOMOTIVE. (See Roadways.) LOED MAYOR'S COURT. (See Cost-book LORD OF MANOR. (See chise : Enfranchisen suresj Merlon, StatuL of; I les.) establishment of right of, to manorial mines iu Cornwall, 440 LOED WARDEN OF THE STANNARIES, former jurisdiction of, transferred to Court of Appeal. 426, 420 a. LOST GRANT, right of profit a prendre not sustainable on ground of, 97 LOT, 511, 512. See Derbyshire. Eights, dec.) LOW PEAK. [Bee Derbyshire Rights, die.) LUCIFER MATCHES, prohibition of, under Eegidation Act- LUNACY REGULATION ACTS. See Lunatic.) LUNATIC, mining machinery may under Court be purchased out of personalty of, 4."> partner, no order for receiver and manager on application of, 1 L6 power to exchange mines of, under order of Court, 1:27 undivided share of, 1"27 without mines, kc. , and witht, leaving support. 127. 128 application of produce, 128 devolution of uuappli d produce on death. 128, 267 lease mines of tenant for life under Settled Land Act. 167 n. in fee simple under Luu. i 160 incidental powers. 160 new and open mines. ..vc. . may be leased, 1G0 application of produce of new mines and quarries. Ill I devolution of unapplied produce on death, 101 premiums and fines on leases not allowed. 100 application of, when taken, 1(30, 101 devolution of. on death. 101 surrenders and renewals. 101 fines on renewals, 161 lease mines of tenant in tail. 161 partition mines of. under order of Court, 127 undivided share of. 127 without mines, &c., and without leaviug support, 127. 128 application of produce. 128 devolution of unapplied produce on death. 128, 267 sell mines of, under order of Court, 127 under Settled Estates Act. ISO u. Laud Act, 133 n. undivided share of. 127 without mines, &c, and without leaving support. 127. 128 application of produce, 128 devolution of unapplied produce on death. L28, 267 working, tenant for life without imp. of waste, 56 in fee simple, no power of Court to sanction working of mines, &C, of. 44, 45 power of, to work, uuder stat. sale or lease, 44 in tail, 46 timber eases, analogy of. not applicable to working of min< 672 INDEX. MACHINERY. (See Derbyshire Eights, dec; Fixtures; Income Tax; Maliciom Injuries; Hating; Regulation Acts.) right of miue owner to fix, on surface, 274 MAINS. (See Gas.) MALICE. (See Malicious Injuries.) liability for, in letting water escape, 409, 410 withdrawing support, 302, 309 MALICIOUS INJURIES. (See Drowning : Setting Fire.) airways, waterways, drains, pits, levels, or shafts, when a felony, 547 punishment for, 547 wicked mind necessary to constitute felony, 547, 548 machinery and effects, 548 — 550 generally, 548 a felony, 548 punishment for, 548, 549 what is a damaging of an engine, 549 an erection used in conducting the business of a miue 549 rioters, 549, 550 demolishing, pulling down, or destroying, &c, 549 a felony, 549 punishment for, 549 injuring or damaging 549, 550 a misdemeanour, 549, 550 punishment for, 550 liability of hundred to make compensation, 559 n. on trial for felony jury may convict of misdemeanour, 550 MAN, ISLE OF, Bishop's Mines and Quarries Act, 18G8, 520 n. clay and sand, owners of cust. estates of inhertce. entld. by cust. to, 519, 520 compensation, customary liability of Crown to make, for workings/520 ' doubtful, whether liability, where no legal damage, 3S9, 390, 520 e.g., damage in respect of percolating water, 389, 390 Crown, customary right of, to pierce surface for mining purposes, 520 Ecclesiastical Leasing Acts not applicable to, 176 n., 520 n. Met. Mines Act, application of, to, 569 minerals in Act of Settlement of, meaning of, ] 7 mines, &c. (not clay or sand) in cust. estates of inhertce. iu Crown, 33, 519 non-user for twenty-one years, right to dig for stone not forfeited by, 520 n. MANAGEMENT of mines, Court will not undertake, 229 MANAGER. (See Receiver and Manager ; Regulation Acts.) MANDAMUS against gaveller under Gloucestershire custom, 495 MANDATORY INJUNCTION. (See Airways; Gloucestershire Right,, &c. ; Lease; Roadways; Support; Water.) MAN-HOLES, 592 MANOR. (See Lord of Manor. ) where conveyance of, will pass miues, 203 MANORS, ASSESSIONAL. (See Duke of Cornwall ; Tin-Bounding.) MAPS. (See Plans.) MARBLE, a mineral. 12 INDEX. 673 MARRIED WOMAN. (See Dowress ; Jointress.) defence of coverture in Barmote Courts, 507 u. powers of, under Settled Estates Act, 130 n. examination of, 129 u. Land Act, 133 n., 167 a. MASTER. (See Employer ; Employers and Workmen Act; Employ I. ility Act; Factory and Workshop Acts ; Regulation Acts; 1 MATCHES, prohibition of lucifer, under Regulation Acts, 589 MATERIALS FOR MINING PURPOSES, supply of, is exception from Truck Act, 009 what are, 610 n. MATERIALS FOR ROADS, highways, 104—107 power to contract for lease of land to supply, 180 purchase of laud for supplying, 14S railways, 107, 108 , sale of land, where materials exhausted, and reservation of right to mines, &c, 148 MATLOCK, 518 MAXIMS ' • , ,c n n s actio personalis moritur cum persona. (See Death.) caveat emptor. (See Caveat Emptor.) cuicumquc aliquid conceditur, conceditur etiam et id sun quo res ipsa non esse potuit, 26S 'graut to be construed most strongly agaiust grantor, obsolete, L!><> n. 'no injunction, no account,' not applicable to miues, 50, 57, 226, 254 quicquid plantatur solo, solo cedit, 515 sic utere tuo ut alienum non Icedas, 269 MAYOR'S COURT. (See Cost-Book and Stannary Companies.) MEASURE, payment of wages by, 583, 584 MEASURE OF DAMAGES, fraud in inducing purchase, 201 'injurious affection' under Lands Clauses Act, 376, 377 life or years, improper workings by tenant for, 58 mortgagee not entitled to allowances for working or bringing to bank, S4 pits, breach of covenant to sink, 234, 234 n. Trespass, 533, 538 . ... ,„ ..... bank, expenses of bringing to, when allowed, o&t, 060, o , liable for, 537 liability to invasion of water by removing barrier, •>•"-/ but when damage recovered fur removal, no damage for subsecpient influx, 537, 538 rest of plaintiff's minerals unworkable or useless, 537 surface damage, 537 different measures of damages, 533, 534 equity, remedies in, 534 — 536 'fairly and honestly,' allowances when trespasser acts. 534 fraud, allowance for bringing to bank, notwithstanding, 536 getting and severing, expenses of, when allowed. 5:: I, 535 form oi oiilcr, .>:>•> n. not allowed, 535, 536 form of order, 535 n. inadvertently, allowances, wheu trespasser acts, 534 674 INDEX. MEASURE OF DAMAGES— continued. Trespass — law, former remedies at, 534 market, allowance to honest wrongdoer for carrying to, 535 ' mere mistake, ' allowances when trespasser acts under, 534 mortgagee going into possession and innocently continuing, 535 position of trespasser who works by authority of, 536 ' negligent,' allowances when conduct of trespasser has been, 535 result of law as to allowances, 53G, 537 ' trade allowances ' not included in ' actual costs and cxpeuses,' 53S ' disbursements,' 538 semble, in 'just allowances,' 538 'unauthorized and unlawful,' allowances where trespasser has acted in manner, 535 unsaleability of minerals, how affects, 538 ' wilful,' allowances when conduct of trespasser has been, 535 ' without any colour of title,' allowances when trespasser acts, 535 water, wrongfully discharging or draining, 414 fouling, 397 MEASUREMENT. (See Derbyshire Rights, <(-. ; Lease.) MEDICINE AND MEDICAL ATTENDANCE, supply of, an exception from Truck Act, 600, 610 MEERS, 509-511, 516, 517 MEETINGS. (See Cost Book and Stannary ( ' ; antes.) MELIORATING WASTE. (See Life or Years, Tenant for ( Work ings).) MEMBERS. (See Cost-Book and Stannary Companies.) MENDIP, FOREST OF, 521 u. MERCANTILE. (See Trade.) mining concerns, though mercantile for some purposes, are not for all, 114 MERTON, STATUTE OF, common, lord of manor must leave sufficient, 151 custom may entitle lord to approp. ms., &c, agst. com. of turbary, &c 151 where appropriation under, lord must leave sufficient common, and so that right of common conveniently exerciseable, 151, 152 customs as to commons, validity and evidence of, 152 evidence of sufficiency of common, long actual sufficiency is frequently primd J Li '. l< . AOJ. onus on lord to show sufficiency of common, 151 pasture, lord may under, appropriate waste as against common of 150 as against both freeholders and copyholders, 151 immaterial that commoners entitled to other common, 151 publication of notice of intention to inclose, 152 sand or gravel pits in waste may be copyholds distinct from waste, 152 turbary or estovers, lord may not under, appropriate mines, &c, as agaiust common of, lol ° immaterial that sufficient common left, 151 turf or fuel, but laud must be capable of producing 151 work in waste, right of lord to, not dependent on, 76 MESNE PROFITS, recovery of, agaiust co-owner, 110 METAL, definition of, 18 derivation of, 18 n., 19 n. less extensive in meaning than mineral, IS INDEX. 675 METALLIC MINERALS, necessity to work for, in Cornwall or Devon, fur company to hi within and subject to jurisdiction of Stannaries, 443 when minerals mean, 12 n. when non-metallic minerals within jurisdiction of Vice-Warden, 41$, 419 within jurisdiction of Vice-Warden, 418, 419 METALLIFEROUS MINES REGULATION ACTS. (Sec 7/ lets.) METES AND BOUNDS. (See Gloucestershire Rights, &c. ; Parcels.) MINE. (See Mineral; and see Table of Contents.) brickfield is quarry rather than mine, 5 clay mine, pit from which clay got by underground workings is, 5 pit is quarry rather than mine, 5 definitions of, non-statutory, 1, 4u. statutory, 1 1 n. Cornwall Submarine Mines Act, 40 n. Derbyshire Acts, 501 Rating Act, 560 Regulation Acts, 5G9, 570 Settled Laud Act, 130 Stannaries Acts, 419 u. derivation of, 3 freestone got by underground workings is, 5 gravel pit is quarry rather than mine, 5 Income Tax Acts, meaning of, in, 5, 552 limestone got by underground workings is, 5 primary sense of, implies openness, 2 is underground excavation, 4 except iu leases and similar documents, 4 quarry and, distinction between, 4 mode of workiug generally conclusive, 4 illustrations of distinction, 5 exceptions, 5 — 9 Railways Clauses Consolidation Act, meaning of, in 5 — 9 seam and, distinction between, 2 secondary senses of, 2, 3 slate concern, when held to be, 5, 552, 570 space created by working included iu meaning of, 9 surface not included in, 19 vacuum after workiug, included in meaning of, 9 veiu and, distinction between, 2 Waterworks Clauses Act, meaning of, in, 9 MINE LAW COURTS, ANCIENT, 482 n. MINERAL. (See Mine ; and see Table of Oont> nts. | circumstances of severance may restrict meaning of, 15 — 17 custom may restrict meaning of, 17 date of instrument, evidence that at, mine would not have included sub- stance in question, does not restrict primd facie sense, 13 definitions of, non-statutory, 11, 18n. statutory, 12 n., 18 u. Cornwall Submarine Mines Act, 40 n. Derbyshire Acts. 51 1 1 Duchy of Cornwall Management Act, 145 a Settled Laud Act, 130 Stannaries Acts, 12 n., 419 n. Hints sometimes not included iu, in agricultural leases, 17 (Tucker v. Linger, affirmed, 8 App. Cas. 508.) Inclosure Act, meaning of, when mines, &c. , reserved to lord under, 1 4, 1 5 language of instrumeut may restrict meaning of, 15 — 17 metalliferous, mine frequently means thing which is, 11, 12 ' mines aud minerals,' construction of, 13 x x 2 G76 index. MINERAL — continued. prima fade sense of, extensive, 12 everything got from beneath surface for profit, 12 e.g., coal, iron, freestone, clay, stone, flint, marble, slate, brick- earth, chalk, gravel, sand, coprolites, 12, 13 (See Tucker v. Linger, 8 App. Cas. 512.) not easily restricted, 13 primary sense of, is what grows in miue, 1 1 quarrying, mineral may be such, although worked by, 12 where impossible to get except by, and no power to get by quarrying, 13 restriction of prima, facie sense of, 15 — 17 salt obtained from brine water not included in, 164 space created by working not included in meaning of, 18 surface not included in meaning of, 13 n., 19, 20 n. ' under ' follows mineral in instrument, effect where, 13 usage may restrict meaning of, 17 'within and under' follow mineral in instrument, effect where, 13 MINERAL PROPERTY. (See Derbyshire Rights, d-c.) meaning of, in Derbyshire Acts, 501, 508 MINES ANI) MINERALS, construction of, 13 meaniug of, in Settled Laud Act, 130 MINES REGULATION ACTS. (See Regulation Acts.) MINES ROYAL. (See Royal Mines.) MINIMUM RENT. (See Dead Rent.) MINING LEASE, meaning of, in Conveyancing Act, 160 n. Settled Land Act, 165 MINING PURPOSES, meaning of, in Settled Land Act, 130 MISDEMEANOUR. {See Regulation Ads.) when malicious injury by rioters a, 549, 550 punishment for, 550 MISREPRESENTATION. (See Fraud.) MISTAKE, contract to sell or lease may be set aside for, 200 mere existence of unknown faults not sufficient, 200 serious misconception as to quantity probably sufficient, 200 of Crown officials, setting aside contract for, 486 where exhaustion through former unknown workings, dead rent probably not payable because of mutual, 216 MORESK, 3S MORTGAGE. (See Rent Charge.) account for profits, mortgagee who works must, 85 value of ore or damage to soil, non-liability of mortgagee to, 85 allowances for working or bringing to bank, mortgagee not entitled to, 84 form of account, 84 n. cost-book member, mortgagee of. (See Cost-Bool- and Stannary Companies.) costs of working, mortgagee not entitled to allowance for, 84 damage to soil, non-liability of mortgagee in respect of, 85 expenditure, receiver and manager not appointed because of failure of mort- gagee to make large, 84 fixtures, injunction to restrain mortgagor from removiug, &c, 209, 210 . — INDEX. ' ' improvements, mortgagee must prove claim for permanent, 84 injunction to restrain mortgagee from working, 85 mortgagor from working, ^_ form of interim order, 82 n. instalments, mortgage money shouldbe made ^^^^^9 ■ just allowances/ mortgagee may ami „ nder or neoe g jjj ^ lessee, no power in mortgagee to leiease, irom SSgeSX-^^Ued, to obtain remand ■ „ew mines or ouarncs. J*^^S^2£U Sufficient, 85 not bound to work, 84 . entitled to work unless secy, msun., 84 occupation rent, mortgagee wrongfully forking chargeable With, So form of inquiry and direction, bo n. onus on mortgagee to show insufficiency o security, 85 onus on mon a ^^ ^ .^^ being m arrearj 85 open mines or quarries. J^j^ST** immaterial whether opening before "J^^"^, 8-2, 83 mortgagee must work, to prevent loss, 83 partner, mortgagee of. (See /'«//», vr.) } 1 position of person who is mortgagee and receiver and manager, (bee Keceiver an j register of mortgages, 450 allowances ' to necessary, 8 1 4»irs, mortgagee ^^^MtajW M . . sell oode,- Coofirm. of Sales Act, mrtgee. may, 136. speculate, mortgagee of new »» ^ °<* 8 unta authorised, 83 ''""-rs uSgSSSleel. JU-5^.,^ M bv third person under l..s author^ . hahuitj form of order, o31 n. ,-,- pnfitlc .i t0 allowances, doubtful trespasser under authority of mortgagee disentitled whether, 530 . . . . mr , y ^ ( ,nacc as to working, 86 vendor, with vendors ^J^^SS^a or destructive. 86 waste, mortgagee restrained from commituu MORTGAGEE. (See Mortgage.) MORTGAGES, REGISTER OF, 450 MORTGAGOR. (See Mortgage.) 678 INDEX. MORTMAIN ACTS, Companies Act, 1862, shares in company under, are personal estate, 265 cost-book shares may generally be bequeathed to charity, 475 contra, where lease of cost-book mine in trust for individuals, 475 grant or reserv. of mines not avoid assurance for charit. uses, 147, 147 n. Irish or Scotch or foreign mine, share in, not within, 265 form of order, 265 n. rents or royalties are personalty for purposes of, 266 trustees for individuals, when mine or quarry in, no member can bequeath share to charity, 264 contra, when mine or quarry in trustees for undertaking, 264 semble, immat. whether or not laud aucill. to independent trading, 264 NAME of partnership, action by and against cost-book company in, 446 NAVIGABLE STREAM. (SeeMver; Water.) NECESSITY, WAY OF, bona fides, necessity of, 372 dimensions of, 372 impassable, effect of previous way being, 372 reservation or re-grant of, 371 uses to which applicable under re-grant, 372 n. sinking from surface to reach and work minerals, 372, -197, 49S consequent escape of water, 372 property in minerals removed in process, 372 statutory severance, 371, 372 surface way, 371 NEGLIGENCE. (See Employers' Liability Act ; Partner; Support; Wider,) NEGOTIABLE INSTRUMENTS. (See Cost-Book and Stan. Camps. ; Partner.) NEIGHBOUR. (See Airways ; Nuisance ; Powers; Roadways; Support; Surface; User; Water.) general principles, a mau may not injure his neighbour, 269 use his ppty as he pleases, and make the most of it, 268, 269 < rgo, he may take away all the minerals in Ins land, 269 conflict of two principles, 269 mines and surface, when differently owned, are separate tenements, with all incidents of separate ownership, 27, 268 same principle in case of mines and laterally adjoining surface, or two laterally adjoining mineral properties, 268 underlying and overlying mineral ppties, 268 meaning of, 291 user of surface or subsoil. (See User. ) NEW MINE OR QUARRY. (See Open Mine or Quarry.) acquisition of, under Statute of Limitations, 526 grant, lies in, 202 land tax, probably subject to, 551 recovery of possession, remedy of, maintainable in respect of, 523 even, probably, where mine separate sub. -matter of actn., 523, 524 succession duty, probably subject to, 557 NEW ZEALAND, operation of Gold Fields Act in, 522 n. NON COMPOS MENTIS. (See Lunatic) NON-EXCLUSIVE LICENCE. (See Licence. ) INDEX. 679 NON-METALLIC MINERALS, jurisdiction of Vice- Warden as to, 418, 419 NON-TEXTILE FACTORY. (See Factory and Worl thqp Acta.) NON-USER, no inference of abandonment by, in ease of mines, 527, 52S NORTHUMBERLAND, obsolete mining customs in. 52] n. NOTE, PROMISSORY. (See Cost-l Partner.) NOTICE. (See Special Notice. ) NOTICES. (See Conveyancing, &c, Act; Railways Clauses Consolidation Ad; Regulation Acts ; Settled Land Act.) NOVA SCOTIA, Crown lease of mines in, held to include mines in Cape Breton. 522 n. right to gold mines in, 522 NUISANCE. (See Nuisances Removal Act; Water.) acquiescence, effect of, 272, 273 brick-burning, no right of, if nuisance created. 270 nuisance by, is a question of fact. 270 cement works, when a, 272 chalk works, when a, 272 coke ovens, when a, 272 copper works, when a, 272 cost-book member, when liable for, 462 highway, interference with right of way on, action for, 377 highways, brick-burning near, 272 calcining near, 273 excavations near, 270 where person deviates from road and falls into quarry. 270 sinking pits or erecting machinery near, 270 injunction in general to restrain, 271 form of injunction and undertakings, 271 n., 272 n. limitation of distance, 272 n. no, when damages adequate remedy, 271 iron works, when a, 272 lessor not liable, when lessee commits, 272 contra where lessor authorizes, 273 licensor liable, when licence revocable and licensee commits. 272 not liable, when licence irrevocable, 272 limeworks, when a, 272 other persons not complaining is immaterial, if nuisance exists. 271 proximity, nuisance is not a question of mere. 270, 271 Public Health Act, brick-burning not necessarily 'noxious or offensive trade, business, or manufacture' within, 271 immaterial on right to injunction that remedy under, 271 not available agst. working ms. ; or Bmelting, calcining, or puddling ; or converting pig-iron into wrought, 273 river, obstructing navigation of, 270 sentimental grievances not sufficient to create. 272 similar nuisance in same neighbourhood immaterial ii nuisance exists. 271 substantial inconvenience and material discomfort necessary to create, -71 time and place being convenient and user reasonable, effect of, 271 workmen cause public nuisance, person whose, indictable, 2(39 NUISANCES REMOVAL ACT, unfenced shaft or side entrance a nuisance within, 000 OATHS, 423 OCCUPATION RENT. (See Co-owner; Mortgage.) 680 INDEX. OCCUPIER. (See Licence ; Rating. ) OFFENCES. (See Regulation Acts.) OFFICIAL LIQUIDATOR, 422 ONUS OF PROOF. (See Copyholder; Limitations, Statutes of; Merton, Statute of; Mortgage ; Wastes. ) OPEN MINE OR QUARRY. (See Campbell v. Wardlaw, 8 App. Cas. 647.) corporeal hereditament, and lies in grant, 202 dormant mine or quarry, 25 where working stopped for advantage of estate, 25 from inability to work at profit, 25 inquiry to ascertain fact, 25 n. form of, 25 n. experimental openings, 24 grant of lands and mines, when some veins open and others hidden, 2, 53 lease and actual working constitute, 23 whether reservation of royalty or dead rent, 23 Limitations, acquisition of, under Statute of, 526 new pit or shaft or breaking on same seam or rook, 24 seam in open mine, 24, 47, 48 shaft for working different mineral, 24 inquiry to ascertain fact, 24 n., 25 n. form of, 25 n. no actual openings, 23 previous general dedication for profit necessary to constitute, 22 not necessary tbat person dedicating be author of settlement, 22 profit and sale, immaterial that no profit be made, if dedication for, 23 recovery of possession, remedy of, maintainable in respect of, 523 even as separate subject-matter, 523 restricted purposes, openings for, 24 casual permission, 24 digging of gravel by surveyors of highways, 24 sales of produce, effect of, 23 Succession Duty, how assessed for, 557 trespass, openings by way of, 24 use, not for limited purpose, 23 Workings. (See Bishop ; Copyholder; Customary Freeholder ; Life or Years, Tenantfor; Mortgage; Parson; Trustees. And see Campbell v. Wardlau; 8 App. Cas. 641.) wrongful openings, 24 OPENING BIDDINGS, former practice of, not applicable to mines, 191 n. OPTION. (See Pre-emption.) ORDINARY. (See Bishop; Parson.) OPE. (See Ore-Rent; Tithes.) meaning of, in Derbyshire Acts, 501, 502 ORE-RENT, analagous to money, and devolves on remainderman, 266, 440 reservatn. of, under power to lease at best aud most apprved. yearly rent, 172 OUTSTROKE. (See Instroke ; Pits.) importance of right of, 238 lessee, as such, may not, primd facie work by, 238, 239 meaning of, 231, 238 pits, effect of right of working by, on duty to sink, 231, 232 royalty, reservation of, in lease, 223, 224 difficulties upon, 224, 224 n., 225 n. wayleave rent for improper working by, lessor may have compensation by way of, 239 681 INDEX. OWNER, meaning of, iu Regulation Acts, 570, 571 OWNERSHIP. (See Property.) acts of. (See Constructive Possession; Presumption. OXFORD. (See Universities and College Estates Act, ) PARCELS, boundaries should be clearly defined, 207, "213, 214 admiss. of evidence as to use of language amongst miners, 214, 2J In. best mode of so doing— use of existing boundaries maps and plans, &c, 207 effect of difference between parcels and plan, 213, 214 intention to include mines, &c, should be clearly expressed, 204, 212 difficulties which may otherwise arise, 204—206, 212 grants, 20.3, 200 Inclosnre Acts, 204— 20G lease, mines or quarries may be included iu, tho. lessee disentld. to wrk., 213 PARISH. (See Materials for Roads; Pauper Settlements : Rating.) PARLIAMENT, ACTS OF. (See references under short or popular titles. >^ce Table of Statutes.) PAROCHIAL ASSESSMENT ACT, 559, 500 PAROL. (See Cost-book and Stannary Companies; Frauds, Statute of; Lid ' account probably against, by patron for improper workings, SI form of, 81 n. Court may not sanction working of new mines, &c, try, bU Crown may, if necessary, have injunction against, 82 damages probably against, by patron for improper -workings, SI deprivation, liability to, for improper workings, 82 dilapidations, no action against, for, 81 inheritance in abeyance, when glebe lauds in, , 9 n. iuiunction against, at instance of patron, 81 . Sse new mines, &c, no right of, to, 170. See Ecclesiast^l L u credit, 122 contra where goods supplied are not necessary, 123 money advanced by partners at request of, treated as debts, 124, 125 and carry interest, 125 not liable to advance more than prudent owner, I -J misconduct, partner not entitled to contribution for bss due to pen., 1 L9, 1 - mismanagement shown, receiver and manager appointed, where, lib mortgagee and^t^ position o^a^n^ gainst others, 118 position of, in other respects, lib pre-emption, effect of clause of, on rights of, 118 receiver and man. against ors., appted. on apphc. of, 115 neg Hgence oi £*» aSSSSSdueto^ ffi 20 n e g otiaMeLtruments,Com^c,lS^ parties to action for account, 1 IS partition, ordinary partner not entitled to, ,138 1 partner in workmg may m general have Ids Partition Acts, partner in working may have sale undei, 13s, 1.,.. SSxt^s 3- **- real estate, share of ordinary partner, when devolves ^M, -04 partner m working devoh es as, ZW receiver and manager, when appointed. See SnewS "lease by°, makes him a trustee for other partnen, LU immaterial that partnership at will, 119 or that lessor would not have renewed to . oil . 1 U partner communicated intention to others, 11 J form of declaration and inquiry, 1 1J n. sale in case of ordinary P«toOTj^ ^ dissolution, 117 iniunction against, m action not seeiviuvii , impossibility of selling, consequences of, 141 684 INDEX. PARTNER— continued. sale in case of ordinary partnership, mode of sale, 140, 141 time of sale, 140 inquiry as to time and mode, 140 form of, 140 n. not immediately after judgment, as of right, 140 sometimes directed on interloc. application before judgment, 140 and even before dissolution to prevent total loss, 140 sometimes reserved until accounts taken, 140 partner, whether at will or for term may sell his share, 137, 138 sale in case of partnership in working, Partition Acts, p. may have sale under, 138, 139. (See Partition Acts. partner whether at will or for term may sell his share, 137 sometimes proper to direct sale instead of partition, 138 trade, mines a species of, 115 transfer his share, any partner at will may, 137, 138 for term may, 137, 13S effect of transfer, 137, 138 trespass of minerals by partner, liability for, 530 joint liability, 531 valuation, contract may entitle partners to purchase share at, 139 immaterial that partnershp dissolved by bankrutcy of other p., 139 will only, presumption in case of doubt that partnership is at, 115n. work his own share, partner must not send down sep. set of miners to, 113 in a practicable way, any partner may, 112, 113, 115 PARTNERSHIP NAME, action by and against cost-book company in, 446 PATRON. [See Parson j Prebendary.) PAUPER SETTLEMENT, coal miue is laud, doubtful whether, so as to enable occupation to confer settlement, '20, 21, 568 rented, at what it should be, if it is, 568 turf and stone, pauper freeholder entitled to dig, not irre moveable, 568 PAYMENT. (See Contract. ) PEAK FOREST. {See Derbyshire Rights, dbc.) 'PEE,' 517 PENAL SERVITUDE for malicious injuries, 546 — 550 PENALTIES. (See Regulation Acts. ) PENKNETH, 38 PENLYNE, 38 PENMAYNE, 38 PEPPERCORN RENT by way of mortgage, when authorised, 172 PERISHABLE. (See Speculative, &c.) PERPETUITIES. (See Contract.) PERSONAL ESTATE. (See Conversion ; Devolution; Tin-Bounding.) INDEX. G8i PETITION. (See Winding-up, on. b . copyholder cannot by prescription claim pr. A prendre in waste, 91, . -, 97 copynoic ^ dis ^ility confined to waste of particular manor 97 right of, to work new ms. not affected by Prescr. Act, 99 ergo, where existence of custom inferrable, not necessary to show 'enjoyment for thirty years, 99 . County Court, jurisdiction of, to restrain infr of right of prof. Apr. ■■> ICn quarries may not by prescription be galed without accounting to Crown for produce, 95 , . , , . n . custom why profit A prendn claimable by prescription, but not by, 94 Snce of reputation, prob. not admissible as to digging in mrt^M user as to particular part necessary to support right to dig out of that part, 96 indefinite claim by owner of brick kiln to take clay bad, 9o Inhabitants cannot by prescription take stones for repair ot highway s, 96 incorporation of, not easily presumed, 90 injunction, infringement of right of profit A prendre restrainable by. I ong exercise of right by, Court will try to find Legal origin, where 94 manor, claim by freeholders of, to take turf or gravel from waste. 9 f ■occupiers not entitled to claim profit A pn ndre, 9b narties to action to restrain infnngement of right oi prof. A p .. 94, 9o Ascription Act, profit A pr Ire not sustainable by custom or prescnp- tion is not sustainable under, 9"i profit A prendre generally claimable by prescription 94 restriction, profit A prendre not claimable by prescription without. 95 immaterial that evidence of user be strong 95 sand, &c, claim by fhldrs. by prescription to take. Horn foreshore, 94 o. stones claim by p. to take, in laud of other pson. good. 94, 94 n. tuXrV? Sent common of, must be claimed for ancient buddings, and to be spent there, 95 688 INDEX. PRESCRIPTION— continued. Workings, turf, claim by prescription to take, in land of other person good, 94 larger right by p. to cut, may be shown than com. of turb. , 96 PRESCRIPTION ACT. (See Prescription. ) « PRESERVATION ' OF PROPERTY, motion to restrain lessee from ceasing to pump is motion for, under Judica- ture rules, 192 PRESUMPTION. (See Constructive Possession.) of right of property, when made, 532 remedies for trespass, where property rests on legal, 532 PRINCIPAL AND AGENT. (See Cost-book, &c; Partner.) PRIVY COUNCIL, decisions of, as to mining rights in Colonies, 522 n. PROCLAMATIONS. (See Tin-bounding.) 'PRODUCE OF MINES,' meaning of, 19 PRODUCTION OF DOCUMENTS iu cases as to boundaries, 207 n., 524 u. PROFIT A PRENDRE. (See Custom; Lost Grant; Prescription; Tin-bounding.) PROHIBITION. (See Bishop; Parson; Prebendary.) PROMISSORY NOTE. (See Cost-book and Stannary Companies; Partner.) PROMOTERS OF COMPANY. (See Cost-book and Stannary Companies.) PROOF. (See Evidence.) PROPER AND WORKMANLIKE MANNER. (See Lease.) PROPERTY. (See Containing Chamber; Copyholder; Customary Freeholder; Derbyshire Rights, &c. ; Enfranchisements; Gloucestershire Rights, Ac. ; Highways; Tnclosures; Life or Years, Tenant for ; Man, Isle of ; Rail- ways, dr. ; Rivers ; Roadways ; Royal Minis .- Sea : Sea-shore : Simple, Tenant in Fee; Wastes; Waterworks; Will, Tenant at; Year to Year, Tenant from : Years, Tenant for.) admissibility in evidence of statement as to ownership of surface, 20, 27 Conveyancing Act, enlargement of term into fee under, 26, 32 different ownership of different strata, 27 where, separate tenements with all incidents of separate ownership, 27, 208 gold or silver mines. (See Royal Mines.) Land Transfer Act, provisions of, as to mines, &c, 27, 28 presumption of ownership rebuttable, 27 Act of Parliament, 27 evidence of long separate enjoyment, 27 instrument of severance, 27 remedies, where right of, in abstracted minerals, 531 surface, owner of, entitled prima facie to all beneath or within, except gold or silver mines, 20 immaterial that surface acquired by prescription, 20 ownership of, not presumed from ownership of mines, 26 PROSECUTIONS. (See Regulation Acts.) PROSPECTUS. (See Cost-book and Stannary Companies.) PUBLIC HEALTH ACT, 1S75. (See Nuisance ; Support; Water.) pxirchase mines under, local authority may, 14S street under, does not carry ownership of mines, 20 n. water, digging holes in thoroughfare to obtain, 107 n. INDEX. 689 PUBLICATION. (See Regulation Acts.) PUNISHMENTS. (See Malicious Injuries; Regulation Acts.) PURCHASE. (See Compulsory Purchase; Contract; Lands Clauses C Act; Purchaser ; Railways Clauses Consolidation Act ; Waterw n ■ Act.) PURCHASER. (See Purchase ; Vendor.) injunction agiiust, if iu possession and working ami lessening securi- pay money into Court, if, before conveyance allowed iuto possession, and works, may be ordered to, 86, 192 PURSER. (See Cost-Book and Stannary Companies ; Rating; Regulation Acts.) PURSER'S SUITS. (See Cost- Book and Stannary Companies ; Stannaries C QUARRY. (See Table of Contents.) definition of, in Factory and Workshops Act, 1878, 607 definitions, non-statutory, of, 3, 4 derivation of, 3 Income Tax Act, meaning of, in, 5, 552 how assessed to, 551—553 mine and, distinction between, 4, 5 mode of working generally conclusive, 4 dlustrations of distinction, 5 exceptions, 5 — 9 Railways Clauses Consolidation Act, meaning of, in, 5 —9 slate, owner of, whether trader within Ir. Bankruptcy Act, 260 space created by working, probably wide enough to include, 11 stone, owuer of, whether trader within Ir. Bankruptcy Act, 259 surface not included in, 19 user of, for transport, ventilation, and drainage. (See User.) vacuum after working, probably wide enough to include, 11 Waterworks Clauses Act, meaning of, in, 9 QUARRY AWARD, 480 n., 481 n. QUARRY GALES. {See Gloucestershire Rights, n. thirty days, necessary, .'!45 ' owner, lessee, or occupier,' meaning of, .'543 payment for support in fust instance, different effect of Acts, where, :v.:\ postpone compensating for mines till necessity arises, company may B 338, 342, 346 prevent working, power to, not confined to ms. within fixed limits, 343 only exercisable within fixed time, :;).'; previous severance of surf, and mines, Act applies notw. 330, 331 immat. that m. owner cd. not have withdrn. s. as agst. vend, to co sale of surface to ordinary owner and resale 1" company, 330 mode of dealing with compensation, 330, 331, 345 a. (Pountney v. Clayton, now reported 11 »,». B. 1 ». 820.) proper and usual manner, mine owner at lib. to work must work in. 348 property iu mines, company making compensation do not acquire, 343 protect rail., company may compel mine owner t<> t t k < ■ >t<-p> t<>. .'II s . purchase and preveut working, different effect of powers to, 342 different effect of Acts not empowering, 331 sometimes necessary to, in order to obtain artificial support, 342 subjacent support, exclusion of implication of grant of, 325), 330 immaterial that surface in natural state would have subsided, 329 superfluous, mines semble are not, if, although surface required, mineral support is not required, 144 surface minerals by underground wrkgs, right of m. owner to wrk., 348 twice for same mineral, company not bound to pay, 345 roadways between severed mines, right under, to make, 370, 371 trespass, rail. co. liable in, for wrongfully entering upon minerals, 533 injured pson. not coutiued to coinpeus. under s. li. 533 co. not liable in, semble for wrongful working of minerals, 530 water communication between severed mines, right under, to make, 402 work mines, company may not primd facie, 86, NT, 1 1 1 co. may temporarily, if intend ultimately to use, 86, 87, 144 RAISE, meaning of, 219 RATEABLE ANNUAL VALUE, meaning of, in Rating Act, 1874, 560, 561 RATIFICATION. (See Acquiescence ; Frauds, Stolid RATINC4, allowances, 562, 563 borough rates, mines and quarries of every description liable t>>. 558 buildings, liability to be rated iu respect of, '250, 251, 559, 565 chargeable value of mines (not being tin, lead, or copper) and qs., 559, 560 when in occupatiou of lessee. 560 not in occupation of lessee, 559, 560 tin, lead, or copper miucs, 560, 561 convenience of property, to be considered in estimating rate, 562 copper mines, chargeable value of, 560 cost-book company, members of, may be rateable, 446, 5(54 county rates, mines and quarries of every description liable to, 557, 558 deduction from rent, when exemption abolished by Rat. Act. 1874, 565, 566 exception where specific contract to pay in event of abolition, 51 6 meaning of s] ecific contract, 566 right of appeal and objection, 566 Derbyshire custom, former rateability of Crown lessee and exemption of miner. 511, 51 5 doubtful wher. Rat. Act has not alter.. 1 position of miner, 511, 565 double rating not allowed, ."(II dues, statutory meaning of, 560 easement, grantee of, not generally rateable, 564 692 INDEX. RATING— continued. enhanced value, rateability at, 562 exclusive occupation of laud containing mine, licensee in, rateable for land, 250, 251, 503, 504 subsidiary buildings, machinery, and roads, rateable for them, 250, 251 right to occupy, what constitutes, 563, 564 exhausted, immaterial for rating purposes that mine being gradually, 563 expenditure in rendering mine productive, no allowance for, 563 tine, statutory meaning of, 500 Gloucestershire custom, galee under, may probably be rated, 483, 564 gross value, statutory meaning of, 560, 561 highway rates, mines and quarries of every description liable to, 558 Inclosure Act placing allotment in parish other than actual, effect of, 567 land containing mine, liability to be rated in respect of, 250, 251 lead miues, chargeable value of, 560 lease, statutory meaning of. 500 lessee exempt as to mine may be liable for subsidiary property, 565 lessor, &c., rateable where rent received in kind, 221, 564, 505 custom of tiu-bounding, 431, 432, 564 express stipulation, 221, 564 where lessor has option to receive in kind, 221, 564, 565 immaterial that property in question not strictly a mine, 3, 505 licensee as such not rateable, 250, 563 liable for soil, if in exclusive occupation, 250, 251, 503, 504 subsid. ppty., if in exclusive occupat., 250, 251 may only be liable for pt., tho. in coustr. possn. of whole, 42, 503 local rates, liability to, 558 machinery, liability to be rated in respect of, 250, 251, 559, 505 mine, statutory meaning of, 500 crushing, washing, and smelting works held included in, 561 mines of every description rateable, 557, 558 occupier, liability of, 563 meaning of, 503 parishes, mine in several, how rated, 507 person liable, 503 — 565 place of liability, 567 poor, miues and quarries of every description are rateable to the, 557 productive, miues not rateable after they cease to be, 559 profits not to be considered in estimating rate, 502 purser or secretary of tin, lead, or copper mine may be rated, 504 quarries of every description, rateable, 557. 558 rateable annual value, statutory meaning of, 561 repairing and replacing, allowances on account of necessity of, 562, 563 roads, liability to be rated in respect of, 250, 251, 550 royalty, mode of calculating, in making prospective rate, 562 shafts, liability to be rated in respect of, 559, 505 situation of property to be considered in estimating rate, 562 specific contrt. to pay rate on abolition of exemptn., 566 subsidiary property, liability to be rated in respect of, 250, 251, 559, 565 surface lands, liability to be rated in respect of, 559, 565 tin-bounding, rateability under cust. of, 431, 432, 564. (See Tin- Bound ing.) tin mines, chargeable value of, 560 trespasser may be rateable, 564 unprofitable, mines or quarries rateable if worked, although, 559 watercourse, liability to be rated in respect of, 559, 505 waterleave, grantee of, not in general rateable, 504 where g. of, lays pipes or culverts, he may be as to contg. land, 504 wayleave, grautee of, not iu geueral rateable, 504 contra where he excludes other persons, 564 whether grantor of, is rateable for rent, is doubtful, 565 working, no rateability before, 559 not profitableness, rateability depends on, 559 EATING ACT, 1874. (See Hating.) REAL ESTATE. (See Conversion ; Devolution; Tin-Bounding.) INDEX. 603 RECEIVER AND MANAGER, co-owner, 111 mere disputes, not in general appointed in case of, 111 partition or sale, appointed in actioa for, on interlocutory application, 1 1 1 even where mere occupation established, 1 1 1 plaiu exclusion or interference, semble appointed where, 111 debenture holder, interim, on application of, 209 form of order, 209 n., 210 n. delay, effect of, on right to, 117 manager necessary, if working to be continued, appointment of, 111 n. mortgagee, appointment against, 83, 84 necessary to show specified mismanagement, 83, 84 mortgagor, appointment against, in action for foreclosure, 209 form of order, 209 u., 210 n. partner, abroad, appt. of, both here and, in ptnrshp. action, 116, 110 n., 117 n. form of order, 117 n. delay, may bar right to, 117 dissolution and account, action for, in general necessary, 113, 115, 110 form of order, 113 n. decreed and sale adjourned, appt. of, where, 139 n., 140 n. not sought, appointment of, under special circs. , where, 1 1 6 exclusn., or interfce., or iuability to agree on plan, nee. to show, 113, 110 or clear mismanagement, 116 interlocutory application, appointment of, upon, 113, 115 lunatic, appointment not made on application of, 116 mortgagee and partner, appointment where same person, 117 of partuer, appointment on application of, 115 sale decreed, appointment, where, 139 purchase, appointment in action to set aside, for fraud, 200 receiver, appointment of, stops working, 1 1 1 n. testator's mines, form of order for appointment as to, 202 n. title disputed, appointment where, 540 RECOVERY OF MINERALS, action for, where injured person has right of property, 531 RECOVERY OF POSSESSION. (See Barmote Court: Licence; Limitations, Statutes of; Stannaries Courts; Tin- Bounding.) action for, lies for mines as well as for surface property, 211 open and new mines, when mines and surface in same hands. 523 mines as separate subject-matter, 523 probably lies for new mines as separate subject-matter. 624 RECTIFICATION OF REGISTER. (See Stannaries Courts.) RECTOR, leases by, 176 n. (See Ecclesiastical Leasing Acts.) RE-ENTRY. (See Forfeiture ; Recovery of Possi ssion. ) REFEREE. (See Support ; Trespass; Water.) REF UGES, 592. (See Regulation Acts. ) REGISTER. (See Regulation Acts.) of members of stannary company, 450 mortgages in stannary company, 450 rectification of, 422, 425, 450. (See Stannaries Courts.) REGISTRAR OF STANNARIES COURTS. (See Stannaries Courts.) REGISTRATION. (See Cost-Book and Stannary Companies ; Stannaries CourU.) REGULARLY, effect of covenant to work, 217, 233 694 INDEX. KEGULATION ACTS. (See Lunacy Regulation Acts.) abandoned mines, fencing of, 598 abandonment before Met. Mines Act, 599 of shaft, notice of, 603 plan to be sent to Secretary of State upon, 603 restriction as to inspection of, 603, 604 re-working, notice of, after, 603 abstract of Act to be posted up, and, when necessaiy, renewed, 605, 606 liability for injuring or defacing, 606 supply of copy of, gratis, 606 offences for nou-compbance, 606 accidents, imprisonment for offences likely to cause, 573 notification of death resulting from, to inspector, 602 to inspector, 601, 602 non-compliance, 602 penalties, application of, in respect of, 574 provisions against, 5S5 — 600 Acts, which apply, 569 agent, liability of, under general rules, 585 statutory meaning of, in Coal Mines Act, 570, 571 Met. Mines Act, 571 appeal from Court of Summary Jurisd. to General or Quarter Sessions, 573 powers of Court of, 573 procedure, 573 appliance, wilfully damaging or removing or rendering useless, 588 arbitration. (See Arbitration.) Attorney-General may have injunction to restrain working, when, 597, 598 award, 600, 601. (See Arbitration.) barmasters, returns by, as to met. mines, 60-4 barometers, 5S9, 590 boards for appointing examiners, 577 reports of, 605 books mentioned in general rules to be kept at office, 586 inspection of, 586 bore-holes, 591 boys, duty of employers of, below ground, as to reports, 581 prohibitions and restrictions, as to employt. of, below ground, 579, 580 register of, employed below ground, 582 school, attendance of, at, 580, 581 breaks, 588 certificate of attendance of boy at school, 5S0, 581 disqualification of teacher to grant, 5S1 competency of manager, 577 cancellation or suspension of, record of, 578 examiners for, 577 fees in respect of, how applied, 578 forging or making false statements in, 578 loss of, 577 register of, 577 restoration of, 578 Secretary of State, expenses of, as to, how paid, 578 certificated manager. (See, under pi-esent title, manager.) change of name, notice of, 603 check-weigher, 583 powers, and duties of, 584 removal of, by Court of Summary Jurisdiction, 584 what necessary to show in applyiug for, 5S4 stationing of, to take account, 583, 5S4 when ceases to be such, 584 who may be, 584 child, meaning of, in Coal Mines Act, 579 children, employment of, 579 — 582 above ground, restrictions as to, 581, 582 offences as to, 579 register of children employed, 582 Coal Mines Act, application of, 569 question as to, referred to Sec. of State, 569 INDEX. 696 REGULATION ACTS— continued. co-owners, separate proceedings under special rules in case of, 585 coroner at inquests, duties and powers of, 602 cover overhead in lowering and raising persons, 587 danger, imprisonment for offences likely to cause, 573 not otherwise provided for, uotice by inspector of causes of, 595 agreement inconsistent with provisions, 596 non-compliance with provisions, 595, 596 source of danger beyond control of occupiers of miue, 596 statement of objection by owner, agent, or manager, 595 arbitration as to, 595 death from accident, notification of, to inspector, 602 Derbyshire custom, doubtful whether Met. .Mines Act applies to Crown mines subject to, 502, 569 lessee of duties under, not within Met. Mines Act, 599 discontinuance, notice to be given of, 603 dressing accommodation in met. mines, 585 drivers of engine, windlass, or gin, 582 engine, person in charge of, to be male of eighteen years, 5S2 where worked by animal, 582 man, attendance of, for lowering and raising machinery, 5S7 evidence, certified copy of special rules admissible in, 594 examiners for granting certificates to managers, 577 explosive or inflammable substance, restrictions as to, 590, 591 exemptions, 591 Explosives Act, 1875, application of, 598 fencing of abandoned mine, 598 entrances, 586, 5S7, 598 machinery, 588 shafts, 587 tops of shafts, 586, 598 persons bound to fence, 598 flanges, 587, 588 forgery of certificates of attendance at school, imprisonment for, 581 managers, 578, 579 gas. (See, under present title, inflammablt gas; ventilation.) general rules, 5S5, 586 offences as to, 585, 586 girls, prohibitions and restrictions as to employt. of, below mound, 579, 580 guardian, duty of, to secure attendance of boys at school, 5i>l guides for working shaft, 587 gunpowder, restrictions as to use of, 590 hard labour for offences under, 573, 579, 581 horns, 587, 588 imprisonment for forging, &c, certificate of attendance at school, 581 manager, 579 offences likely to cause danger, 573 indicators, 588 inflammable gas found within twelve months, inspection, when, 589 not found within twelve months, inspection when, 589 prohibition as to working, 589 substance, 590, 591 injunction to restrain working till compliance as to single shafts. 597, •"'■' s injuring or defacing notice, abstract, special and proposed rules, ;">94, 606 inquests, 602 inquiry into competency of manager, 577 Court of Inquiry, 577, 578 reports of, 605 Secretary of State, costs and references of, ordrd. to be pd. by, •">7 S ' inspection of books, 586 coal mines, daily. 5S8 on behalf of workmen, 586 report, 586 where inflammable gas found within twelve months, 5S9 not found, 589 inspector, appointment of, 57-4, 575 disqualified from acting as. who arc. 575 096 INDEX, .REGULATION ACTS- continued. inspector, appoiutment of, inquests, functions of, at, 602 notice by, of causes of danger, 595 notification to, of accident, 602 death resulting from accident, 601, 602 powers of, to enforce duty of owner to keep plans, &c, 575, 576 enter and inspect mine, 575 inquire as to compliance with statutes, 575 ventilation, safety, &c, 575 offences as to, 575 prosecutions by, 574 register of persons employed, production of, to, 582 removal of, 574, 575 reports of, 605 Ireland, application of penalties in, 574 Isle of Man, application of Met. Mines Act to, 569 ■ jury at inquests, who disqualified to serve on, 602 ladders for ascent and descent in met. mines, 588 lease, holder of expired, whether bound by provisions as to abandonment 599 lowering and raising machinery, attendance of enginemau for, 5S7 or raising persons, apparatus in shafts for, 596, 597 cover- overhead in, 587 lucifer matches, &c, prohibition as to, 5S9 machinery, fencing of, 588 manager, appointment of certificated, 576 boards for appointing examiners for granting certificate to, 577 certificate of competency of, 577-579 examiners for granting certificate to, 577 general rules, liability of, as to, 5S5 inquiry into competency of, 577 met. mines, none in, 576 n. penalties for working without, 576 qualification of, 576 temporary, 576 manholes in underground planes, 592 Metallif. Mines Act, application of, to Isle of Man, 569 doubtful whether applicable to (Jr. ms. in Derbyshire, 502, 569 question as to application of, referred to Secretary of State, 569 mine, statutory meaning of, 569, 570 part of, deemed to be separate mine, 570 objection by Secretary of State, 570 miner, liability, under general rules, of workiug, 585, 587 special rules, of working, 594, 595 misdemeanour, forging, &c., as to certificates a, 578, 579 notice of abandonment or discontinuance, 603 change of name of mine, or of owner, agent, or manager, 603 officers of company, 603 opening of new shaft, 603 re-working after abandonment, 603 Nuisances Rem. Act, unfenced shaft or side-entrauce within, 600 offences, prosecution of, 572—574 procedure, 572, 573 time for complaint or information, 572 same offence not twice punishable, 574 proceediDgs under another Act, 574 other persons interested in minerals, meaning of, 599 owner, statutory meaning of, 570 contractor for working coal mines liable as, 570 includes any one of two or more co-owners, 570 not include holder of expired lease, 570 lessee of duties under Derbyshire custom, 599 recipient of rent because also a lessee, 570 parent, duty of, to secure attendance of boys at school, 581 part owner, liability of, under general rules, 585, 586 penalties, amount of, under Coal Mines Act, 573 application of, 574 INDEX. 697 REGULATION ACTS— continued. penalties, application of, in Ireland, 574 for offences, 572, 573 recovery of, 572, 573 plan to be kept by owner, agent, or manager, 575, 576 incidental powers of iuspector, 575, 676 offences, 57(1 sent to Secretary of State on abandonment, 003 restriction as to inspection, 4c, of, 603, 004 prosecutions, 573, 574 none for offences triable by Court of Summary Juried., o7.".. 67 I except by inspector, 574 or with consent of Secretary of State, 574 when inspector must not institute, 574 public house, &c, wages not to be paid at, 583 publication of Acts and special rules, 605, 606 quarry, when a mine within Met. Mines Act, 5, 570 raising. (See, under present title, lowering. ) refuge, spaces for, in underground roads, 592 size of, 592 register of women, young persons, and children employed, 582 production of, to inspector, 5S2 relatives of persons injured, payment of penalties to, 574 removing, or rendering useless, appliance, 5S8 reports of Courts of inquiry, 605 examining boards, 605 inspectors, 605 names of disqualified teachers, 605 special on direction of Secretary of State, 605 returns, 604, 605 by barmaster as to metallif. mines, 604 forms of, 604 of persons employed, 604 quantity of minerals gotten, 604 publication of result of, 604 roads, securing roofs and sides of travelling, 587 spaces for refuge in underground, 592 rules. (See, under present title, general rules, special rult safety lamps, 589, 594 n. examination of, before use, 589 must not be unlocked, 589 safety valves for steam boilers, 588 school, attendance of boys at, 580, 581 certificate of, 5S0, 581 payment for, 5S1 service of notices, 571 proof of, 571 shaft, abandonment of, notice of, 603 casing and lining, 587 communication between, 596 different shafts, use of, 587 fencing of, 587 tops of. 586, 598 persons bound to fence, 598 guides and signalling for working, 587 inspection of, 588 notice of opening new, 603 re-workiug after abandonment, notice of, 603 single, prohibition as to, in coal mines. 596 agreements in contravention, void, 597 exceptions, 597, 597 n. offences as to, 597, 59S compliance enfrcd. by injn. to restr. wrknj statutory meaning of, 570 uufeuced, a nuisance, 600 signalling, 587, 591, 592 singledinked chains, restriction on use of, 5S7 698 INDEX. REGULATION ACTS— continued. slate mines, exemption of, from restrictions as to explosives, 591 special rules, certified copy of, admissible in evidence, 504 false statements as to posting up of, 593, 594 in coal mines compulsory, 592 amendments and additions, 593 arbitration as to, 593 establishment of, 593 framed, by whom, 592 objections and modifications, 593 posting up of, 592 copy of, and renewal of, when nee, 605, 606 publication of, 605, 606 supply of, gratis, 606 liability for non-compliance, 606 transmission of, to inspector, 592, 593 in nietallif. mines, at iustance of owner or agent, 593 Secretary of State, 593 injuring or defacing proposed special rules or notices, 591 special rules, 606 liability for non-observance, 594, 595 non-transmission to inspector, 504 statutory force of, 504 Stannaries, notice of change of purser in, 603 stations beyond which workmen may not pass before inspection, 591 steam gauges, 588 stratified ironstone ms., exemption of, from restrictn. as to explos., 590, 591 Summary Jurisdiction Acts, 571 n. Court of, appeals from, 573 constitution of, 571, 572 disqualification from acting as or being members of, 572 imprisonment by, 573 meaning of, 571 proceedings for offences and penalties, 572, 573 prosecution for otfeuces triable before, 573, 574 removal of check-weigher by, 58 i teacher, disqualification of, to grant certificate, 581 report as to uame of disqualified, 605 thermometers, 589, 590 travelling roads, securing roofs and sides of, 587 umpire, 600, 601. (See Arbitra underground planes and roads, 591, 592 ventilation for rendering gases harmless, 588, 589 during temporary suspension of work, 588, 5t>9 power of iuspector to inquire as to, 575 returns as to, 604, 605 wages, offences as to, 583 payment of, at public house, &c, prohibited, 583 by weight, measure, or gauge, 583 water, provisions where dangerous accumulation of, probable, 591 Weights and Measures Act, application of, 5S4 wilful damage to appliance, 588 woman, meaning of, in Coal Mines Act, 579 •women, prohibitions and restrictions as to employt. of, below ground, 579, 5S0 restrictions as to employment of above ground, 581, 582 offences as to, 579 register of women employed, 582 working places, securing roofs and sides of, 587 workmen, stations for, 501 withdrawal and readmissiou of, 591, 596 young person, meaning of, in Coal Mines Act, 579 persons, duty of employer of male, below ground, as to reports, 581 restrictions as to employment of, above ground, 581, 582 offences as to, 579 register of young persons employed, 582 INDEX. 699 EEGULATION OF COMMONS. (See Inclomn Arts.) RELEASE, given id ignorance, remedy for trespass not lost by, 542 RELIEF. (See Derbyshire Rights, JL-c. ; Forfeiture.) 'RELIEVERS,' 519 RELINQUISHMENT OF COST-BOOK AND STANNARY SHARES 1 Account of Relinquished Shares ' iu stannary company, 474 account, relinquishing member entitled and subject to, 470 may have action for, 47- agreement not to take account, 472 construction of agreement, 472 effect of agreement, 472 agreements as to payment of balance, 472, 473 balance becomes debt due to or from member, 470, 471 creditors, relinquishment does not affect liability to existing, 473 indemnify relinquishing member as to former contracts, obligation on com- pany to, 473, 474 mode iu which account taken, 471 effect of following different principle on previous occasions, 471 mode in which relinquishment made in stannary company, -47< > of dealing with relinquished share in stannary company, 474 notice to purser, 470 part of share, stannary co. not bound to recoguize relinquishment of, 470 payment of balance, debt from company to member due immedly., and payable in 2 yrs., 47*-' personal liability of continuing members to pay, 472 debt from member to company payable immediately, 471, 472 power of cost-book member to relinquish shares, 470 removal of name from list of members, right to, 473 sale of relinquished shares, and position of purchaser, 474 subsequent transactions, relinquishment removes liability as to, 473 effect of continuing to hold oneself out as member, 473 n. REMAINDERMAN. (See Fixtures ; Heir ; Life or Years, Tenant/or.) contingent, on coming into esse, may have remedy for prev. trespass, 530 REMAINDERS, TRUSTEES TO PRESERVE CONTINGENT, account, at instance of, 57 injunction, at instance of, 61 RENDERS. (See Dead Rent ; Lease ; Rent ; Royalty. ) RENEWAL of bounds, 431, 433, 438, 439. (See Tin-Bounding.) lease, 119, 121, 122. {See Delay.) RENEWABLE FOR EVER, TENANT FOR LIVES OR YEARS, waste by, 52, 53 RENT. (See Apportionment Act; Dead Rent; Gloucestershire Rights, d£c.; Heir} Lease; Life or Years, Tenant for; Mortmain Acts ; Ore-Rent; Royalty.) meaning of, in Conveyancing Act, 160 u. Settled Laud Act, 104, 165 RENT-CHARGE, mode in which surface and mine together subject to, should contribute, 210 u. REPAIR. {See Lease; Support.) REPORTS. (See Regulation Acts.) RESCISSION. (SeeFrcmd; Mistake.) 700 INDEX. RESERVATION and exception, distinction between, 11, 135 right of way not the subject of a, 355 u. RESIDUARY GIFT IN WILL, working rights of tenant for life under, 49—51 RESOLUTION. (See Cost- Book and Stannary Companies.) RESTORMEL, 38 RESTRAINING ACTS, Dean and Chapter cannot since, dig stones, or sell except for repairs, 78 or lease mines, 175, 176 parson can with consent of patron and ordinary work new mines, doubtful whether since, 80 or grant leases, 176 RETAINER OF INCOME TAX, 556 RETIREMENT. (See Relinquishment, die. ; Transfer.) RETURNS. (See Regulation Acts.) REVERSIONER. (See Copyholder ; Lease; Life or Fears, Tenant for ; Trespass : Will, Tenant at; Tear to Fear, Tenant from; Fears, Tenant for.) REVOCABLE LICENCE. (See Licence.) RILLATON, 38 RIOTERS. (See Malicious Injuries.) RIPARIAN OWNER. (See Water.) RIVERS. (See Cornwall; Nuisance; Rivers Pollution Prevention Act; Water.) navigable river, what constitutes, 30 u. ownership of miuerals deposited by stream on beds of pool, 30 n. I» resumption as to ownership of mines uuder, 30 RIVERS POLLUTION PREVENTION ACT, offences under, poisonous, noxious, &c, solid or liquid matter from mine, 399 400 solid matter from mine, 399 refuse from quarry, 399 proceedings under, appeals, 400 County Court, offences restrainable by, 400 penalties for disobeying order, 400 notice of intention to take proceedings— pendency of other proceedings, 400 other powers not prejudiced by powers of Act, 400 sanitary authority, with consent of Local Gov. Bd., may alone take 400 duties and powers of sanitary authority, 400 ROADS. (See Regulation Jets; Roadways.) ROADWAYS. [See Airways; Derbyshire Rights, d-c. ; Gloucestershire Rights, dr. ■ Highways; Necessity, Way of.) cophldr. may alone, primd facie, use space created by lord's wrkngs 87—89 custom, lord may by, use surface or subsoil of copyhold as roadway 'lOS grant in fee excepting mines, ' grantor may use space created by workings for carriage of foreign miuerals, 67, 69 s and may cut space for that purpose, 67, 69 grant wayleaves to others to do so, 67, 68 limitation of right to part actually consisting of miues. 6S in fee excepting surface, similar principles applicable to, 68 or exception of minerals, principles applicable where, 68 INDEX. 701 ROADWAYS — continued. Iucl. Act, soil and ms. in roads set out under, pr fac. rested in lord, 28, 29 lessor excepting mines in similar position fco grantor excepting mines, 68 lord of manor may not pr. fac. use surface or subsoil •■ rls, ^7 with right to carry manorial ms. may not carry : 39 form of injunction, 89 u. interlocutory injunction, NT Q. materials for, 104—107, 148, 180. (See Motet minerals, principles applicable where grant or exception of, 68 Neighbours, ..,_.,.. accidents as affecting constructu. of grant, prob. of occurrence of 51, Sbl altering direction of way, effect of grantee capriciously, 369 application to which way may be put, .SGI— 368 appurtenant to subject-matter of grant, 356 n. circuitous course, if more beneficial, grautee may use, 368, 369 compensation clause as affecting construction of grant, 359 construction of way, mode of, 370 ' convenient wayleave,' grantee under, may only get granted or excepted minerals, 302 — 364 what kind of way grautee may make under, 358 — 361 'convey his coals,' what kind of w. gtee. of right to, may make, 360, 361 Cornwall Submarine Mines Act, rights of Crown under, 3/1 Crown Lauds Act, rights of Crown under, 371 may semblc carry mines royal through lauds of subjects, 3.>.> and saltpetre, 3.").") probably treasure trove, 355, 366 customary right of way, 375 n. damages for improper user, 378 interference with right, 377 immaterial that no special damage if public nuis., .:, , severance, 377 nee. that part taken contain min. communication, ::, , death of wrougdoer bars remedy for improper user, 379 (Phillips v. Homfray, now reported, 24 Ch. D. 439.) deed necessary to create legal grant of way, 356 dimensions of way, 369 direction of way, 36S, 369 Duke of Cornwall under 7 & 8 Vict. c. lOo, rights of, 3, 1 easement, right of way is an, 355 exception, right of way is not the subject of an, 355 n. expectation, followed by expenditure, rights founded on 356 n. •free wayleave,' grautee under, may only get granted or excepted minerals, 363, 307 « general words ' of grant, origin m, 356 n. grant or prescription, right of way usually has origin io, 356 highway as a terminus, grautee of way to, may go beyond it, 362 exit of way into, rebuts presumption ot user as railway, 358 right to traverse, 369 Highways Acts, rights of way under, 104—106, 371 implied grant, 273, 274, 371, 372. (See tocessity, ' ay of.) mipneu g , ^^ oq construction of miue owucr having similar rights under, 307, 368 improper user, remedies for, 378, 379 'in, through, over, and along,' construction of, 308 lnc'losure Acts, right of way under, 371 injunction against improper user ^ 378 J immaterial that no special injury, 3, \ o, J maud. inju. to remove rails or stop up aperture, 378 where wrongdoer improperly uses, not makes. .;,'.' forms of, 379 u. interference with right, 377 form of, 377 n. mandatory, 377 . . . interfere with pre-existing right, effect on construction of aon-i to, 365-368 interference with right, remedies for, 3/0— 3, H 702 INDEX. ROADWAYS— contimied. Neighbours, Irish Acts, rights of way under, 371 judge of direction, grautee is, where direction not specified, 369 kind of way which may be used, 350 — 301 Land Tax Redemption Act, easements under, 371 Lands Clauses Act, compnsatu. for 'injurious affection' under, 376, 377 difficulties in estimating compensation, 376, 377 language of grant — application of way, 362 — 368 kind of way, 358—361 limited, where application, way cannot be used for different ppse., 361 immaterial that servient owner would not be injured, 362 where direction, 36S kind of way, grantee cannot have different way, 357 immaterial that landowner would not be injured, 357 loss of remedies, 379 maintenance of way, 370 mala fides, in selecting way, 369 mandatory injunction against improper user, 379 interference with right, 377 minerals, where grant for all ppses. except mnrls., no right for, 361, 362 same where grant for agricultural or other restricted pur- poses, 361, 362 where grant for, from partic. m., no right from other mine, 362 place as a terminus, 362 no right for gen. ppses., or passengers, 362 ' necessary wayleave,' what kind of way grautee may make under, 361 necessities of position, grantee caunot act without regard to, although grant not limited, 357, 362, 368 necessity, way of, 371, 372. . Wayof.) not clearly limited, where grant, 357—360, 362—368, 369 nuisance, immaterial as to right to damages, that no special damage, if public, 377 'or any other ms. orqs., lands or grounds,' &c, constructu. of, 363—367 passage, grantee of right of, cannot have tramway or railroad, 357 paving, kind of way sometimes indicated by mode of, 358 physical surroundings, kind of way sometimes iudicated by, 357, 358 prescription. (See Prescription.) right of way usually has origin in grant or, 356 present intention to use way necessary before remedy available, 377, 378 prudent owner would adopt, proper mode of construction is what, 370 railroad, grautee of right of passage cannot have, 357 waggonway cannot have, 357 with locomotives, effect of compus. clause on right to use, 359, 301 grant should be for purpose of working and for exclusive use of grautee, 360, 361 grautee of right of railroad cannot have, 357 Railways Clauses Act, right under, to make communications between severed miues, 370, 371 re-grant, right of way takiug effect as, 355 n. remedies for improper user, 37S, 379 interference with right, 376 — 378 remedy, necessary to use specified statutory (if any), 377 reservation, right of way is not the subject of a, 355 n. result of cases as to application of way, 367, 368 kind of way, 360, 361 royal mines, s^diJJk, Crown may carry through lands of subject, 355 saltpetre, right of Crown to carry, 355 servient owner may use or alter way, 355 skill, right of selection generally depends on acting with reasonable, 368 statutory rights of way, 370, 371 ' sufficient wayleave,' grantee under, may only get granted or excepted minerals, 362 — 364 what kind of way grantee may make under, 35S —361 708 INDEX. ' ROADWAYS— continued. Neig !l!~Mare between mines on cither Bide, right to use mines as 365 me of grant, not nee. that way should only be o kind ^ useat 359 tramway, grantee of 'conv. wayleave' 'sufficient wayleave, &c, maj make, 358 — 361 right of passage cannot have, 357 waggpnway cannol bave, ^>7 SSI g U g » nt ee u.de r , = « ^ £ > 00 may make, 358 — ooz right of, cannot have, tramway or railroad, 3.,, Waterworks dances Act, right under, to make communications betwee* severed mines, 371 wayleave rent for improper user, 3/b, 6ib n. form of inquiry, 37S n. . width, kind of way sometimes determined by its 358 presumption as to ownership of mines under roaus, «_ ^ ^^ Ind()gure Act, 28, 29 m-oprietary or possessory land for carriage, user of. (See I - r. I ?S3eSject-matter of grant, right of user, where, 6b mteabilitv as to roads, 250, 559 ROPE, • • K/IQ malicious injuries to, ois ROWBEREOW, custom in manor of, 521 n. ROYAL MINES. (See Crovm ) inines without ex , Colonies, Crown grant in, wi 1 not pass gon mention, 41, oil Victoria, 521, 522 Crown P--^^-^f^/ me tals, not entitled to latter. 40 but has right of pre-emption, 40 gold and silver mines are, 40 ^rs:r&?aTA^» »- •* *-. « rebuttable, presumption of ownership m Crown is, Scotland, 41 n ,. .. sur f a ce to, 281, 282 EOYALTY. (See^o* - J-, « —**•*•»**' * acutely '-or in breach covt. to secure m^^ ^ of. airleaves, reservation of, for, „*£* SalSS^^atgH-JS SS-d .**». for, 2.8 t0 P r 4 r»,=£ &££*«.- « -*— - 21 ^f„ t covert ...eu ^S^teSr^ ^ m liability notwithstanding difficulty or „«. o» 704 INDEX. ROYALTY— continued. covenant to raise such minerals as it is possible to find, effect of, 221 work, reservation of, does not imply, 229 distress lies for, 225 drainage of other mines, reservation of, for right of, 224 instroke, reservation of, for right of, 224 life or years, right to, of tenant for, 47, 48 meaning of. (See A.-G. of Ontario v. Mercer, 8 App. Cas. 767.) outstroke, reservation of, for right of, 223, 224 difficulty upon reservation of, 224, 224 n., 225 n. raise, meaning of, 219 rate on lessee, how calculated iu making prospective, 562 reservation of, lessor should always stipulate for, 214, 215 sell at pit's mouth, reservation of, for sum for which mineral would, 221 n. support, effec of reservation of, iu excluding right of, 297, 319 ventilating other mine, reservation of, for right of, 224 wayleaves or waterleaves, reservation of, for, 223 win, meaning of, 219 RULES. (See Cost-Book and Stannary Companies ; Gloucestershire Rights, Q. Regulation Acts, application of. to, 571, 571 n.. 572 a., 573 n, rental, daughter's portion by reference to 3 years' rental means average, 216 Q. royal mines, in, 4l n. surrender of leases, 244 n. trustees, leasing powers of. See 30 & 31 Vict. c. 97. B. 2, sub - 3; and Campbell v. Wardlaw, 8 App. Cas. 641. water, liability for discharge of, 401 n. no liability for escape of, 403 n. SCRIP MINE, 443 SEA. (Sea Wa . . presumption as to ownership of mines under, 6\ SEA-SHORE, ownership of mines under, 31, 30 SEAM, definition of, 1, 2 mine and, distinction between. 2 primary sense of, excludes openness, 2 secondary sense of, 2 space created by working probably included in, 1 ) vacuum after working probably included in, 1 1 user of, right of, 68 vein and, are convertible expressions, 2 SECRETARY. (See Cost-Book and Stannary Companies ; Rating.) SECRETARY OF STATE. (See Regulation Arts SERVANT (See Employer ; Employers and Workmen Act ; Empl ' Mity Act; Factory and Workshop Acts ; Regulation Acts; Truck Act.) SERVICE OF NOTICES. (See Conveyancing, &c, Act; Regulation Acts.) SERVICE OF PROCESS, &c. (See Barmote Courts; Stanna SETTING ASIDE. (See Fraud; Mistake.) SETTING FIRE to mine, when a felony, o46,_ o4 , punishment for, 547 attempt, when a felony, j~47 punishment for, 547 SETTLED ESTATES ACT. (See Fettled Land Act.) power of tenant for life to lease under, contracts, power as to, 163 Court may authorise leases of mines or easements for 40 years, M or for louger term if ace. to cust. of district and beneficial, l<>- devolution of moneys set aside, 164 'earth, stone, coal, and mineral,' apphc. of rent in reap of, 164, 164 n. forms of orders, 163 n. , 164 n. incidental powers, 163 rights and easements, 163, 164 infant entitled in remainder, 162 n. undivided shares of, 163 , kiud, qu. whether reservation of rent in, authorised, 163 n. new 'and open mines may be leased, 162 particular leases and general leasing powers, lo3 saltSn^^ statutory requirements as to rent, &c, to be complied with, 16-, surrenders and renewals, L63 y ., TOO INDEX. SETTLED ESTATES ACT— continued. power of tenant in fee simple to lease under, lands of infants under, as extended by Conveyancing Act. 159 joint powers of, and 1 Will. 4, c. 65, s. 17, 160 power of tenant in tail to lease under, 161 power to sell under, bankrupts, 130 n. Court may authorise sale of land containing mines, &c, at instance of tenant for life, 129 separate sale of surface and mines, 129 easements and easement rents may be granted or reserved, and restric- tions imposed, 129 terms on which sale sanctioned, 129 n. forms of orders, 1 29 n. infants, 130 n. lunatics, 130 n. married woman, 130 n. examination of, 129 n., 130 n. proceeds, application of, 129 trustees, 133 SETTLED LAXD ACT. (Se< Act. ' mines and minerals,' meaning of. in, 130, 130 n. ' miniug lease,' meaning of, in. 165 ' mining purposes,' meaning of, in, 130, 130 n. power of tenant for life to lease under, average clause authorised, 165 capital money, settiug aside as, 167 ' teuaut for life impeachable for waste,' meaning of, 167 n. setting aside in case of open mines, 167 n. conflict betweeu powers of settlement and powers of Act. 166 n., 167 n. (Newcastle's Estates, now reported, 2-1 Ch. D. 129. ) contracts, 166 Court may authorise lease for more than sixty years, or in perpetuity, if according to custom of district or other lease impracticable, 166 deeds, 166 except or reserve mines, ivc, or easements, power to, in leasing land. L65 improvements, lessee may execute, 165, 166 infant, lliii kind, render in, probably authorised, 165 n. lunatics, 167 n. married women, 167 n. minimum rent authorised, 16."> mining purposes, power to lease land or easements for, for 60 years. 165 new and open mines may be leased, 165 lease of whole or part, with additional mines, power to make, 166 and to reserve apportioned or other rent, 166 particular leases and general leasing powers, 166 procedure, 167 n. rent may be according to acreage worked, or quantity gotten, or facili- ties given, 165 rents, application of. 167 rules under Act, 166 n. statutory requirements as to rent, Szc. to be complied with. 165 surrender of whole or part, with or without exception of mines, power to accept, 166 and to apportion rent, 166 power of teuaut in fee simple, who is an infant, to lease under, 160 tail, who is an infant, to lease under, 160 powers of tenant for life to sell, enfranchise, exchange or partition under, application of capital money, 131 payment for improvements, 131 purchases of mines, &c, and easements, 131 subject to exceptions, as to mines. &c, or easements, 131 burning bricks, making tiles, &c, 132 deeds and contracts, 131 devolution of capital money. 132 INDEX. ■5T7TTT VT) T,AXD ACT — continued. , powerstf tenant for life to sell, enfranchise, ex. firestoue, limestone, clay and sand, &c, working of, \ii improvements, power of tenant tor life and successors to execute, 132 with capital money, 132 brick making, tile making, &c, 132 ietties, piers, &c, for transport of mineral. 132 trial pits and other preliminary mining works, 1.5- infants, 133 n. lunatics, 133 n. married women, 133 n. notices, 133 .„,. power to enfranchise, exchange, or partition, U<> sell land or easement over it, 130 separately deal with surface and mine, 130 purchase, or in exchange or on partition, and acquired by, 132 restrictions aud easements may be created, 130, Ml difference between restrictions and easements l.,l n. successive sales, s< rtible no power to engage in, 1-1 >'• tramways and other ways, making of, 132 trustee for all parties, tenant for life a, 132 trustees, position of, 133 ■ powers of trustees to sell surface apart from mines (See Newcastle's Estates, 24 Ch. D. 129.) powers to sell, &c, of infant tenant in fee simple 1-, r tail, 128 ' rent,' meaning of, iu, 164, 165 SETTLEMENT. (See Pauper Settl it ; Settled Estates Act; Scttl I U SETTS. (See Stannaries Courts.') duration of agreement for, 440 forfeiture for non-working of, 4"_1 SEWERS. {See Support; Water.) SHAFT. (See Fences ; Pit* ; noting ; Regulation Acts.) malicious injuries to, 547 SHARES. (See Companies Act, 1862 ; Cost-Book and St, Partner.) SIC UTERE TUO UT ALIENUM NON LJSDAS, 269 SIGNALLING, 587, 591, 592 SILVER. (See Royal Mines.) SIMPLE, ESTATE IN FEE, mines may be held for, 27 SIMPLE, TENANT IN FEE. (See Fixtures ; Infant . 1 power to lease, 159— 161 «pll nartition, or exchange, IZI, ito property nmSfqnarries, and minerals has, if in possession, I I l 1 i, J ■ i x. n c rspp ntmtain na Chaml user bv. right oi. >et ("«'"" . „ ,, SINKING PITS. (See Pits.) SLATE, a mineral, 12 worked underground a mine, o „ 70S INDEX. SLATE MIXES GUNPOWDER ACT, 591 SLATE QUARRY. {See Regulation Acts.) owner of, whether trader within Ir. Bankruptcy Act, 260 SLEEPING RENT. (See Dead Bent.) SMELTING WORKS, application of Factory and Workshops Acts to, 606 SMOKE. (See Nuisance ; Surface Damage.) SMYTHAM, 502 n., 511 n. (See Derbyshire Bights, \ SPACES FOR REFUGE, 592 SPECIAL NOTICE, forfeiture at meeting with, 454 making of calls at meeting with, 452 meaning of, 448, 449 SPECIAL REFEREE. (See Support ; Trespass; Water.) SPECIAL RESOLUTION, alterations in and additions to rules by, 4ol menuiug of, 449 sale of property under, 475 SPECIAL RULES. (See Regulation Acts. ) SPECIFIC PERFORMANCE, easements, covenant as to, runs with the laud, 198 may be had of contract for grant or lease of, 197, 198 mine or quarry, contract for sale or lease of, specific performance may be had of, 195, 196 stannary mine, 421 not enforceable as to moiety, where tenant in common contracts for lease of whole, 196 covenants to be inserted where contract silent, liberty for lessor to enter and inspect, 196 vendor, when price payable according to workings, 196 "usual and customary mining clauses," 196 assignment, covenant against, 197 bankruptcy, right of reentry on, 197 buildings by Sc. lessee, removal of, 197 n. district, effect of particular provisions being usual in, 197 modes and times of working, 196 re-entry for non-payment of rent or royalty, 196 other breach, 196, 196n. surrender, right to, if mine not workable at profit. 197 in Derbyshire, 197 water, innux of, 196 .substitution of names in cost-book, 4,66 SPECIFIC PERFORMANCE— contin minerals, « . contract for sale of, specific performance may not be h id of, L98 immaterial that supply and payment by instalments, 198 or that minerals are of a partic. descriptn. or from partic. . working of mine involved, & fortiori, if, 198 covenant for purchase of, docs not run with laud, 198, 199 injunction, contract not indirectlj • repairs, not obtainable of covenant as to, 238 work, not obtainable of covenant to, 229 SPECULATIVE NATURE OF MINIM: PROPERTY. biddings', former practice as to opening, not applicabli to mines, I'M n. contract, enforcement of, never refua I 190 sometimes element in favour of enforcing, l»d delay, person otherwise entitled to reliei u »y, - ■•• - >■ ' - » ' - fraud, general statements as to prospects comparatively immaterial as ba, 199, 200 . ., , „ . .,.„, laches peculiarly applicable to action to set aside contract, 200 residuary gift in will, conversion prima facie necessary under, 4.) 5J SPEECH HOUSE, 481 n. SPRAGS m , » x «n are materials within Truck Act, Old a STAFFORDSHIRE, butty colliers, custom as to. in, • >•-»> meaning of, ;V20 n. STAITH, malicious injury to, 54S — aoO STAMPS. (See Barmote -to; C R -y/i/s, appeal to Court of Appeal, 420 l>\ bankrupt, 420 limited company, 420 deposit, 420 form of order, 420 u. not a stay of proceedings, 126 ootice, 420 procedure, 426 a. arity, 426 where uol allowed, 426 House of Lords, 126 applications, how made. 423 arbitration, 422. 42.S Assistant Registrar, 421 a. attachment of debts in pursers suits, 4_, barristers, right of, to practise in, 424 n. Bills of Exchange Act, application of, to, 419, »-■' cli'ii' 1 r cs 42 1 ii ■ common law jurisdiction in Cornwall, 118 I h \ onshire, l I s ,panies. S< 710 INDEX. STANNARIES COURTS— con tinned. Companies' Act, not necessary to register under, company working within and subject to jurisdiction of, 443 what is such company, 443 concurrent administration of law and equity, 417, 418 Cornwall, jurisdiction in, 418 cost-book mines. (See Cost-book and Stannary Companies. ) remission for trial from County Court of causes as to, 422 costs of trial of issues, 420 n. taxation of, 423 County Court, process from, for enforcing stannary order, 427 remission of claim of interpleader from, 427 n. for trial from 422 County Courts have concurrent jurisdiction in personal actions, 424 not concurrent equitable jurisdiction, 424, 42.3 covenant, injunction to restrain working, contrary to, 421, 422 Creditors' Suits. (See Cost-book and Stannary Companies; and, under preseut title, Pursers' and Creditors' Suits.) custom, injunction to restrain workings contrary to, 421, 422 customs of mining, remission for trial from County Court of causes as to, 422 damages not exceeding £50, suits commenced by plaint for, 410 debt not exceeding £50, suits commenced by plaint for, 410 debts, attachment of, in purser's suit. 427 Deputy of Vice-Warden, 417 Devonshire, jurisdiction in, 418 Duchy mines, duties of registrars as to, 278, 279, 423 n. Duke of Cornwall. (See Duke of ( 'ornwall. ) property provided for, vested in, 428 u. ejectment. (See, under present title, recovery of possession.) enforcement of orders as to registered compauies, 427 in winding up, 427 equitable jurisdiction, 418 execution, 426, 427 where previous formal demand not necessary, 420 fees, 427 n. list of, 424 d. ft. fa. for payment of money, costs, &c, 426, 427 tines, 427 n., 428 n. forfeiture for non-working, &c, 421 freehold, no jurisdiction as to claims touching, except by consent, 421 High Court has no equitable jurisdiction, where resort may be had to, 424 semble, no jurisdiction in personal actions within, 424 jurisdiction of, to rectify register, 425 process from, for enforcing stannary oi'der, 427 House of Lords, final appeal to, 42G infant, right of, to sue, 419 inheritance, no jurisdiction as to claims touching, except by consent, 421 injunction, jurisdiction as to granting, 421, 422 of Registrar as to, 422 vacation, grant of, in, 417, 422 where grantable, 417, 417 n. interlocutory orders, 423 interpleader after winding up, 477 in actions, 420 u. in creditors' suits, 421. 421 n. remission of claim of, from County Court, 427 u. issues, trial of, 420 costs, 420 u. jurisdiction, how regulated. 41(1 n. nature of, 417, 41S jurors and juries, 420 u. licences, remission for trial from County Court of causes as to, 422 limited company, appeal by, 426 mine, statutory meaning of, 410 n. mineral, statutory meauing of, 419 n. non-metallic minerals, when within jurisdiction of, 41S, 419 oaths, 423 INDEX. 711 STANNARIES COURTS continued. officers of, actions against, 4 1 T u. Official Liquidator, Registrar m , 122 penalties, 427 u., 428 n. personal actions, jurisdiction in, 424 petitions. (See under preseut title, pitch, entry of name of, iii books of, place of jurisdiction of, 416 places for holding Courts, 41(i, 417 plaint, suits commenced by, for debt or damagi III procedure in, 419, 419 n., 420 u. triable by tive jurors, ! Hi plumbago, a metallic mineral within Acts relating to, ll'.t a. proceedings in, 419 425. 427 n. procedure in, bow regulated, U6 q. proclamation of tin-bounds in, 429, 130, 439 property provided for, vested in 1 >. of Cornwall, 428 n. Pursers' and Creditors' Suits. See CostA procedure in, 420, 420 n.. 4 - _'l, 4:21 n. attachment of debts in Pursers' Suit enforcement of orders in, by 8a] sh ires, 120, 121 injunctioa in C. v .. 122 interpleader in C. S., 121, 121 n. powers of Registrar 121 Assistant Registrar, 4J1 n. record, are Courts of, 417 recovery of possession, 421 writ of possession for, 127 rectification of register, 422. 4".() jurisdiction as to, by High Ct. or Stan. Ct., at optn. of applicant, 42."> reason why option given, 42.~> where some objects of stan. co. carried out beyond stan. di registered companies, jurisdiction as to, 4'2'A orders as to, enforcement of, 427 Registrar, 417 appointment, qualifications, and disabilities of, 117 n. Duchy mines, duties of, as to, 278, •27!', 42.S' n. injunctions, jurisdiction of, as to. 422 Official Liquidator, may act as, 422 sale of shares, powers of, as to, 421 signature of, judicial notice of. 423 n., 424 n. registration under Companies' Act of company working within and Bubject to jurisdiction of, not necessary, 443, 447, 4 4S what is such company, 44'A sale of shares, enforcement of orders in I'm.-, and ('red. Suits by, 120, 1-1 powers of Registrar as to. 421 remission for trial from ( bounty < lourt of causes as to, 122 seal of Court, judicial notice of, 423 n., 424 n. service of orders, summonses, &c, 423 subpoenas, 423 setts, remission for trial from ( lounty * !ourt of causes as to, 122 shares. (See, under present title, salt ; transfers : and Bee T solicitors, change of, 424 n. right of, to practise in, 421 n. specific delivery of chattel. 427 performance of contracts for sale. 421 stannaries, what were originally. 4 Hi n. stay of proceedings, appeal not a, 126 taxation of costs, 423 times for holding Court, 416, 1 17 tin-bounds, proclamation of, in, 429, 130, 139 remission for trial from County Court of i '-"- tinners, jurisdiction of, recognised in charters granted to, tl , transfer of shares. (See I transfers of shares, remission for trial from ' ountj < ourt i to, 422 712 INDEX. STANNARIES COURTS— continued. vacations, injunctions during, 417 jurisdiction of Registrar as to, 422 Vice- Warden, jurisdiction of, principally exercised by, 417 winding up of companies, 422, 425, 476, 477. (See Winding up, r <- ■>'■'•■ right of, where severance under, 297, 298 injunction generally obtainable to restrain infringement ol right of, 352 nit ante not usually granted, 352 a& ^m where there is claim of right and prob of damage, 352, acquiescence and expenditure may bar ngnl to. ...,_ compensation, sometimes granted on fcerms oi paying, Sol damages a sufficient remedy, immaterial that, 6dZ general words, when granted, will 1- granted in, 353 mandatory, may be obtained in proper case, 353 to enforce provisions as to support, -■•■> inspeoUonTm^orkings, and plans, order for, 0. inb H. applic., 353 form of order, 353 n. ^t^^*^ u '' 348 land, owner of, has primd facit nght of, 293, 294, .11!) support by L'sr, compensation for minerals Lauds Clauses Act, hond ™^kX&ys Clauses Consolidation Act, 347 compensation under, :•>•">, ^^'oTner of land has,™*/^ right of 294 ^s^ le ase, faet^^^^ * «*""■ «* - should stipulate for support for surface 234 construction of provision as to. ->|- .-■' mandatory injunction to enforce, 2^5 ordinary mode of providing tor, -..So liability for damage, effect o provnaom re Uevm^ !»"£» « K£^3=^^~* Ji '"" contra, where licence revocable, .-Wl withdrawing. Limitation, Sta^teo., a ba^r^y^^^ ,„, llia l,lv no bat against previous ejcavatoi until P £?yeVrs after dSmge ft present; s|eav. ^S^nrfg —T. *«" ieofwSg^mmer^t^V?^? 11 - - -^ 348 principles, 286 _ ,, vl nature of right of support tor land IB, ->, - result of cases, 289 . , ., , .„ u ojg owner of land in, iufrfmdfim ngMc f,J93, 294, nature of right of, as to i^g-ra^E^Eta. I"*-* "« 716 INDEX. SUPPORT— continued. nature of right of, as to substance receiving, 287 — 290 generally, 292, 293 strata, right of, not affected by, 290 negligence, necessary that claimant of rights for land in non-uatural state should act without, 317, 318 servient owner liable if no injury but for his acts, 318 may not accelerate injury, 318 semble, entails liability for withdrawal of, 302, 303, 3U9 neighbour, meaning of, in questions relating to, 291 non-natural state. (See, under present title, artificial weight; building; ■ ned. > land in, and land in nat. state regultd. by diff. pples., 286 entitled to such support, as owner would have had, if it remained in natural state, 301, 352 ergo, owner of built-on laud has remedy if it would have been damaged in natural state, 301 A, in previously weakened land, no lia- bility on defendant, though aware of fact, 301 remedy extends to injury to building, 301, 352 and to consequent injury to trade, 301, 302 necessary that claimant in, should have support for laud in natural state, 317 right of, for land in. only an easement, 289, 290 character of right when acquired same as for land in nat. state, 290 notice of intention to withdraw, doubtful whether duty to give, 303 plea of purchase without, of right of. ■_".»."> nuisance by injuring roads, effect of, on provisions as to. 337 passive omission, no primd facie right of action for mere, 203 contra, where artificial support, 293 plans, inspection of, on interl. application. 353 pleadiug, necessary in, to allege right of, for artificial weight, 299 not necessary iu, to allege grounds of right, '-Oil right of. for land in natural state, 294 prescription — enjoyment of right for twenty years, 314 — 317. (See Pre- script since legal memory, 313 right of, for land in natural state may probably be excluded by, 306—308 subsequent acquisition of excluded right probably not obtainable by, 309, 310 previous withdrawal of, no right of action I >y purchaser for, if uo fraud, 292 proper and usual manner, m. owner must under 1!. C. < '. Act work in, 348 property, support for laud iu natural state not absolute right of, 287 purchase by railway or waterworks companj for purposes of, 341, 342 of mine by railway company to substitute artificial, 143 Public Health Act, compens.itiou under, for leaving miue uuworked, 346 when payable and what included in, 346 gives right of subjaceut, to statutory sewers, 312 right not confined to mathematically su!>j. minerals, 3)2 whether right of gen. lateral support is doubtful, 312 Railway Act, provisions as to, in, 323 — 326, 329 — 331 right of. where severance under. M(l4 co., ambiguous provisions as to, in case of, 323 — 326, 320 —331 compensation by. for not working, 342—310. 354 may purchase mine to substitute artificial, 143 purchase by, for purpose of. 341. 342 right of, where purchase for erection of. 31 1 Railways Clauses Cousolidation Act. (See Jim/. CI. Cons. Act. reasonable weight, no right of, for niere, 313 reasonably, nee. that claimant for land iu non-nat. state slid. act. 317. 31 S servient owner liable, if no injury but for his acts, 318 may not accelerate injury, 318 receiving, substance, 286 referee, reference to, by Court in cases of doubt as to withdrawal of, 353 n. remedies for withdrawal of. 350—354 loss of, 353, 354 INDEX. 717 SI PP0R1 remedies for withdrawal of, where previously specilied, should sometimes be atoue used, :i>. but sometimes ordinary also available, 351 repair, necessary to keep building in, to avoid loss of right of, 318 neighbour may enter bo, reservoir, no prim I fa rie right of, for, 298 reversioner and lessee may som >ver in proportion, .'i.>l roads, effect of nuisance by injuring, on pro royalty, reservation of, an elem asidering whether right of, excluded, 297,319 running with land, covenant not; 335, 336 runs with laud, liability to compensate for withdrawal of, separate tenement, right of, is right to previ raJ of support, aftei existence as, 292 sewers, right of, to subjacent, 312 statutory contract, exclusion of right of, by, 305 cn-aut, right of. for land in non-natural state, acquired by, 310 provisions as to. 341- 348 severance, right of, where, 297, 298-, 304 strata, right of, with respect to two Bubj icent, 287, 294, - subjacent. (.See, under present title aud superjacent mines, right of, as to, 294, superfluous lands, 143, 144. (See Superfluous I surface damage, meaning of, 304 n., 333 u., 494, 495 mnrls by underg. excavations, right under K. < . I . Act to wrk ,6*0 tail, duty of tenant in, not to withd. support from mansion house, 4.) n. trade, where remedy for consequent injury to, 301, 302 trespass, mine owner may alone maintain, in respect ol minerals trespasser may uot withdraw, from artificial weight, 299 . . , twenty years, enjoyment of right of, for, 314—317. underground workings, effect of reference to, in ambig. provisions as to, 332—334,336 unusual working, semble, entails liability for withdraw.il oi unworked, compensation to mine owner for leaving minerals, 3o4 effect of provisions obliging m. owner to Leave mnrls., SZl—i&> ' usual and most approved way,' effect of covenant to work in, 320 value of laud not entitled to, for artificial weight, 303, 304 values of substances giving and receiving s., right of s. independent of, 292 vertical, 286 . . . owner of land has, primd facte, right oi, Atl same principles apply to lateral aud, 286 workings hit. workings may entail liab. notw. contr. for impunity as to, 305, 306, 311, 312 waste, right of lord of manor to withdraw support from, 295 customary right to do so good, 308, 309 water, right of support, where laud covered naturally by, -J8 support by, 2S6 mav be acquired by express grant, .i4> 3 ' implied grant, 34S e.g., when grant forparticular purpose known to grantor, he cannot derogate, 350 contra, when presence of w. due to accident, fcc , *4», .•■"' no/. light to, -J9l withdrawing support from barrier and letting m, 295 waterworks company. iSee Waterworks Clauses Act.) compensation by, for not working, 342, 343, ■ !•'. ...-4 purchase by, for ppose of, 341, 342 weakened, no primd of for land aru.ic.ally 299 800 immaterial whether weakened by owner oi laud oi hird us m u but on happening of damage, prob. remedy agst. third or by defendant, if entitled to cause weakening, 390, oOl weight. (See. under present title, artificial wt igM. ) no primd facie right of, for increase to, 299 winning and working, effect of clause giving tull liberties of, 320 718 INDEX. SURFACE. (See Confirmation of Sales Act; Neighbour; Settled Estates Act ; Settled Land Act ; Superfluous Lands ; Support; Surface Damage ; User.) and miues, when differently owned, are separate tenements, with all the incidents of separate ownership, 27, 26S meaning of, 19 not included iu 'mine,' 'quarry,' or 'miueral,' 19 owner of, entitled prima facie to all beneath, except gold and silver mines, 26 presumption as to ownership of mines rebuttable, 27 rateability of, 559 reservation of rent for, 223 secondary sense of, 20 settled, mode of dealing with damages iu respect of. when surface, 2S4 user of, for pits, machinery, ponds, rubbish, transport, &c, 87, 108, 109, 273, 274, 2S4. (See Custom ; I r s, : ) under Derbyshire custom, 514, 516 SURFACE BOUNDARY BOOK, 484, 488 SUE FACE DAMAGE, estimating compensation for, where powers exereiseable subject to making compensation, 275, 276 meaning of, 304 n., :VA:in., 494. 495 recovery against trespasser for, 537 SURRENDER. (See Powers (leases and licences.)) Gloucestershire rights and customs, surrender of gale on notice, 492 otherwise than on notice. 492, 493 part of gale, 492. 193 surrendered gales and quarries, lease of, 493 regrant of, 493 surrenderor, duty of, as to roads, drains, &c, 493 right of, as to removing minerals, machinery, &e., 493 lease, 'at any time,' construction of liberty to surrender, 244 'fairly wrought,' meaning of, iu stipulation that rent should cease, 243 liberty to surrender, lessee should stipulate for, iu case of exhaustion or accident, 243 construction of clause, 243, 244 previous accidents, application of clause to. 243, 2 1 1 waiver of right to surrender, 244 SURVEYORS OF HIGHWAYS. (See Highways.) TACKLE, malicious injuries to. 548 TAIL, ESTATE IN FEE, mines may be held for, 27 TAIL, TENANT IN. (See Fixtures ; Infant; Lunatic.) power to lease, 161 sell, on barring entail, or under Settled Land Act, 128 user by, right of. (See Containing Chamber ; User. Avaste at pleasure, may, if in possession, commit, 45 may commit, if so under Parliamentary entail, 45 contra, if support would be removed from mansion house, 45 n. may not commit, if so after possibility of issue extinct, 45 TALSKEDY, 38 TAXATION OF COSTS 1 N STANNARIES COURTS, 423 TAXES. (See Income Tax; Land Tax; Succession Duty.) TEACHER, 581, 605. (See Regulation A< ' fNDEX. 719 TEASDALE FOREST, tithe-ore due by custom in, 520, 521, ."><>7 TENANT AT WILL. (See Will, Tenant TENANT BY THE CURTESY, waste by, 52 TENANT FOR LIFE OR YEARS. (See Lif or Y TENANT FOR LIVES OR YEARS, RENEWABLE FOR EVER, waste by, 52, 53 TENANT FOR, YEARS. (See Lease ; Life or Years, Tenant for ; )' for.) TENANT FROM YEAR TO YEAR. (See Year to » TENANT IN COMMON. (See Co-Owner ; Partition; Pari TENANT IN FEE SIMPLE. (Sec Simple, Tenant TENANT IN TAIL. (See Tail, Tenant i TENANT, JOINT. (See' 1 y owner being also bound< unwrougnt bounds, rights of other tinners as to, 133 validity of custom, 435 — 437 wasteland, bounding in, 4'_".) water brought to surface by tin-bounders, diversion by into owner of, 31)4 no right to discharge, 435 right to use and divert, 385, 434, 4.35 no right to cause Mow from or. lands over lands 1-1 use by bounders enuring for benefit of land-owner, 391, 134, 435 right to wash minerals. &c, by means of, 39(5, 435 working, bounder must not cease, 4.'!_' duties of co-adventurers as to, 43'2, 433 Tin-bounding in Devonshire, bounders and other tinuers, mutual rights of, 139 co-adventurers, mutual rights of, 438 collusion with stranger as to pitching new bounds, 4!;S contribution, duties of co-adventurers as to, 438 devolution on heir-at-law, 438 dig tin, right to, 437 dish, render of, to lord of soil and tenant in occupation, 437 entry of 'pitch ' in books of .Stannaries Courts, 439 estate of bounder is in fee simple, 437 fraud as to pitching new bounds, 438 havens and ports, protection of, 439 infaut heir, 438 occupiers of soil and tinners, mutual rights of, 437, 438 owners of soil and tinners, mutual rights of, 437, 438 ' pitching ' by other tinners, 439 fraud as to, 438 proclamations of pitches in Stannaries Courts, 439 renewals, 438 streamers for tin may not injure other tiuuers, 439 transfer of bounds, 43S trespass, 439 unrenewed bounds, 439 valid, ciistom of, frequently not, 439 water, no right to divert, and dig trenches over lauds of others. 3S6, 439 right to carry, to and from works, 439 will, tin bounds may be devised by, 438 workings, duties as to, towards owner of soil, I of co-adventurers as to, 438 TIN-BOUNDS. (See Tin-bounding.) TINNERS. (See Stannaries Courts; Tin-bounding.) ancient charters of, 417 TINTAGEL, 38 TITHE COMMUTATION ACTS. (See Tithes.) TITHES. (See Derbyshire Rights, 3 or may recognize or adopt them, 468 third parties not affected, 408 u. power of cost-book member to, 403 registration of, immaterial as between the parties, 467 rescission. (See Fraud.) specific performance for refusal to, 400 stamp, registered transfer valid without, 466 _ request or authority to purser to icgister, requires CM., 1' penalty, 407 . . . , - ,.■ ■ usage, that delivery of cost-book shares and payt. simult., end. ot, 4U.> usual mode of contracting for transfer of cost- book share... transfer of cost-book shares, 466 Derbyshire Rights and Customs, High Peak, consideration for, 5 1 '2 entry of — etfect of entry. 5 1 2 form of, 512 power of, 512 other districts, entry of, 513 power of, 513 priority of entered documents, 513 ( lloucestershire Rights and ( ustoms, by galee or lessee, 4!)1 delay fatal to enforcing contract, 191 a urn: pro turn' entries of, 491 u. registration of, 491, 491 a. invalidity of unregistered, 491 refusal by gaveller to register, 491 purchaser may ascertain whether payments inancir, i renewals of quarrj leases to assiguees ol miners, 491, 4 partnership, any partner at will may transfer his snare, VSt, i* 724 INDEX. TRANSFER— continued. partnership, auy partner for term may transfer his share, 137, I3S effect of transfer, 137, I3S tin-bounds, 432, 438 TRANSFEREE. (See Transfer.) TRANSFEROR. (See Transfer.) TREASURE TROVE, rights of Crown as to, 282 n., 355, 356 TREES. (See Timber.) TREMATON, 38 TRESPASS. (See LimUations, Statutes of .) account, injured person who has right of possession may have, 533 property may have, 531, 532 form of, 533 n. Barmote Courts, action of, in, 507, 517, 518 constructive possession, remedies of person with mere, 532 what is constructive possession. 532. (See Cons Pot tsion.) copyholder and lord, damages for trespass divisible between, .">.".'.> may have trespass or account, 533 damages for, 531 death of wrongdoer, remedy for abstraction not lost by, 544 personal tort may be lost by, 5 1 1 but action where tort within six months before death. 54 1 but must be brought within limited time, 544, 545 (Phillips o. Eomfray, now reported 24 Ch. D. 439.) directions trespass committed, liability of persons under whose, 530, 531 employer may be liable for, as sharing profits, 530 expenditure followed by delay may bar right to interlocutory injunction, 544 Forest of Dean, trespass in, 499 harbour company, no remedy semble against, where ultra pirn to work, 530 iujuuctiou to restrain, usually obtainable, 539, 540, 544 form of, 540 n. inquiry for ascertaining value of minerals abstracted, 533 n. inspection, 540 — 542. (See Inspection.) issue, if necessary, directed to ascertain fact of, 530 n. joint liability for damage, where two or more persons guilty of, 531 life or years entitled to work, damages how applied where tenant for, 538 not entld. to work, damages how applied where t. for, 538, 539 t. for, impeachable of waste may have trespass or acct., 52, 533 Limit., loss of remedy through Stats, of, 542—544. See Limit., Stats, of.) loss of remedy for, 542— 5 1 5 measure of damages against trespasser, 533—538. (See Mem. of Damages.) mode of dealing with damages against trespasser, 538, 539 mortgagee, 84, 531, 536. (See Mortgage.) open mine, working by way of trespass does not constitute mine an, 24 part in wrongdoing, without sharing protits, liabilit) r of persons taking, 530 partner may be liable for, as sharing profits, 530 possession, injured person with right of, may have trespass or account, 533 ■prima 'facie remedy for, 530 profits of, liability of person who shares, 5:>i) property, remedies of injured person with right of, 531, 532 person presumed to have right of, 532 when presumption will be made. 532. (See Constru >/'oh.) quiet enjoyment, trespass by stranger no breach of covenant for, 21 1 railway company liable for wrongfully entering on minerals, 533 semble, not liab. pr.fox. for wrngn. wrkng. of mnrls., 530 rateable, trespasser may be, 51 i4 receiver and manager, appointment of, when title disputed, 540 recover minerals, injured person with right of ppty. may have acta, to, -".".1 INDEX. 725 TRESPASS continued. referee, account may be taken by, .m.{ n. release given in ignorance, remedy for, not lost by, 542 remainderman on coming into e - 530 reversioner on lease may Lave remedy for, 533 threat to commit, injunction may be had on, ..40 tin-bounds, 433, 434, 439 trade, mines are a species of, 53-2 _ trespass, injured person with right of possession may bring 1 ' J property may bring, 5«$1 will, tenant at, may have trespass or account. 533 year to year, tenant from, may have trespass or account, TRESPASSER. (See Treq TRIAL. (See Barmote Gmrts ; 5 es Courts.) TROVER. (See Trespass.) TRUCK ACT, application of, COS artificer, meaning of, in, 608 who is, 608, 609 ^,°SPJK, cootraot tor pav,„c„« ofwage, to be in, 608 wages to be be paid in, b0» when wages not paid in, 608 contract as to deductions to be in writing, 609, 61(T drafts payable to bearer on demand, payment in, 60b employer, meauiug of, 60S exceptions from Act, 609, 610 , labourer employing others under him, 60S 609 materials for mining purposes, supply of 609 medicine or medical attendance or fuel, supply of, 00J penalties under, 608 TRUNK, . . . malicious m juries to, o-ib-ooo TRUR Sannaries Court for Cornwall usually held at. 41. TRUST, CONSTRUCTIVE, 119, 121, 122 delay in enforcing, 121 122 ou renewal of tin-bounds, iSS ^'''""uoc&t'-SS'p'ersoos Interested in uoocraV b, Met M fa I. powe" to exchange, 134. (See Omf. o/Sates Act.) duration of lease should be specified, 1 i 1 express powers, 168- 173 , , hall Be emreas. and pper.,' 171 ' fOT ^r^MoT^w^pora 23 Ch. D. 583.) «•*■ £S ."diSS i solve difflcoltv »),c„ B otde8.ed, ,70 mines should be defined, 169 726 INDEX. TRUSTEE— continued. Power to Lease, new ms. may be leased, doubtful whether, if ms. not defiued, 169, 170 no power, primd facie, to grant mining lease, 1G7 immaterial that direction to pay rents to tenant for life, 168 ore-rent, 172 peppereorn-rent by way of mortgage, 17- (Taylor v. iMostyu, now reported 23 Ch. D. 583.) power to lease mines, following life estate, effect of, 171, 17*2 simpliciter, effect of, 171 rents, application of, should be provided for, 173 sale, mining lease equivalent to, 169 Scotland. (See 30 & 31 Vict., c. 97, s. 2, subs. 3; and Campbell v. Wardlaw, 8 App. Cas. 641.) sell does not authorise lease, power to, 168 Settled Estates Act, 168 Land Act, 168 time when power first exerciseable should be specified, 171 two contiguous estates, one lease of, 168 ' usual powers,' power prob. implied from direction in articles as to, 168 wayleaves, &c, power to lease lauds not authorise lease of, 170 power to partition, 134. (See' m of Sales Act.) Power to Sell or Purchase, beneficial for all parties, power to purchase, where, 134, 135 Confirmation of Sales Act, 133, 134 Court, sanction of purchase I y, 135 donees of power, who should be, 135, 136 easements, &c, power to create, 136 form of power, 136 n. express powers, frequently desirable to give, 135 forms of powers, 1 35 u. liberties, power to create, 136 no power in general to purchase laud contg. mines or quarries, 134, 135 to sell laud coutaiuiug mines or quarries, 133 excepting mines, 133 proceeds of sale, application of, 136 ' reut and reservations,' meaning of, in power, 135 'reservations,' meaning of, iu power, 135 Settled Estates Act, 133 Laud Act, 133 (See Newcastle's Estates, 24 Ch. D. 129.) power to work, donees of working powers, trustees (if any) should be, 66 form of power, 66 u. machy., &c, shd. be vested in donees with powers as to repairs, kc, 66 new mines or quarries, uo power to work, G(i no power, rnero motu, to work, (i,~> open ms. or qs., power to work for infant under Conv. Act, 65, 66 applicatiou of produce, 66 to preserve contingent remainders, account at instance of, 57 injunction at instance of, 61 TURBARY, COMMON OF, 92. (See Custom; Merlon, Statute of ; Prescription.) TURNPIKE ACTS. (See High ways. ) TYBESTA, 38 TYWARXHAILE, 38, 174. (See Duke of Cornwall.) TYWARNHAILE TYAS, 38, 174. (See Duke of Corn wall.) ULTRA VIRES. (See Harbour Companies ; Powers; Rail. CI. Cons. Act.) I'M PIPE. (See Arbitrati INDEX. 7'27 UNCERTAINTY. (See Specific Performance. \ in contract, "coals, &c," 187 " lying under land to be hereafter defined," 186 " lying under the lands of T., situate at P.," 186 "minerals, &c," 187 n. "supposed to be eighty-three acres or thereabouts," 186, 187 of mining operations. (See Delay ; Speculative, die.) 'UNDER,' construction of, 13 ' UNDERGONE,' COALS, 520 UNINCORPORATED COMPANIES. (See Cost-Book, die; ; Stan UNITY OF POSSESSION, in water rights under custom of tin-bounding, 435 UNIVERSITIES AND COLLEGE ESTATES ACT, building aud repairing leases, 179 buildings, offices or gardens, convenient enjoyment of, not to be prejudiced, 179 incidental lands, buildings, rights aud easements, 178, 179 licences, 179 new and open mines may be leased, 179 rents, application of, 180 statutory requirements to be complied with, 179 surrenders and i*enewals, 179 Universities and Colleges of Oxford, Cambridge, and Durham, and Colleges of Winchester and Etou, may lease mines, &c, under, for 60 yrs., 178, I ,'.' UNOPENED MINE OR QUARRY. (See New Mine or Quarry.) UNPAID PURCHASE MONEY. (See Purchaser. ) UNREGISTERED COMPANIES. (See Cost-Book, >."> terms usually imposed, 3S3, 3S4 forms of order, 3S4 n., 54'_' n. Irish Acts, diversion and use of water under, 2S0, 385 laches and expenditure may bar right to injunction, ;;'.i.*> machy., riparian owner may use steam for working mining, 382 mandatory injunction to restr. interference with water rights, '• natural surface water flowing iu denned course, meaning of, 380, 381 negligence, effect of, in entailing liability, 389 percolating water, primd facie right to abstract or divert, ,"!S7. 407 no difference between preventing water from reachic ising water to leave, 'AS~, 3S8 acquired rights, 3S9, 390 prescription, rights in artif. water course, may be acqrd by, 391 395 (See Prescriptii percolating water may not be acquired bj surface water may be acquired by, 385. V| <■ Prescription.) reasonable degree, right of riparian owner to abstract or divert in. 382 reasonably, water rights only exerciseable, 3S9 riparian owner, rights of, in natural surface water. 3S1, ," s - river, riparian owner may not tap bed of, and draw off water, "in- sensibly interfere with common enjoyment, rip. owner may not, 382 meaning of sensil.de interference, 3S2 n. 734 INDEX. WATER— continued. Neighbours — Using, Abstracting, aud Diverting. simultaneous interference with percolating water, and water in defined course, 389 n. statutory grant of water rights, 384, 385 stranger may not abstract water from artificial watercourse, 390 qu., liability of stranger to person who conducts water under mere permission, 390 subterranean water, principles applicable to, 386 superjacent and subjacent owners, percolation as between, 388 surface water, rights in respect of, 381 — 386 tin-bouuders, rights of, to divert water within bounds, 385 transport, right of riparian owner to use stream for, 382 undefined course, prima facie right to abstract or divert water in, 386 acquisition of right to prevent, 386, 387 unity of possession, suspension of rights by, 395 n. seisin, extinguishment of rights by, 395 n. utility, water rights only exerciseable for purposes of, 382, 389 well 'dry, mining operations laying, 388 immaterial whether well ancient, 388 n. wilfully, water rights not exerciseable, 389 pits, &c, effect of peril from water on liability to sink, 233 proprietary or possessory land for drainage, user of. (See User.) rateable, grantee of waterleave not in general, 564 but laying pipes aud culverts may make him, as to land containing them, 564 t rateability as to watercourses, 559, 565 trespass, liability for influx of water, where remov. of barrier by, 406, 537 compensation for t. bars right of subseq. compens., 400, 537, 538 WATERCOURSES, rateability as to, 559, 565 WATERLEAVE, grantee of, not in general rateable, 564 but laying pipes and culverts may make him, as to land contg. them, 564 water rent, compensation to neighbour, by way of, for impper. drainage, 414 reservation of, in lease, 223 WATERWAYS. (See Water.) malicious injuries to, 547 WATERWORKS CLAUSES ACT. (See Railways Clauses Consol. Act.) airways between severed mines, right under, to make, 376 bond under Lauds CI. Act not include compensation for minerals under, 347 bound to purchase subjacent mines, co. purchasing under, not, 143 compensation, mine owner whose working is prevented entitled to, ,354 damage for severance under, 347, 354, 377 expressly purchased and conveyed, co. purchasing under, not entitled to mines, unless, 30, 182, 202, 203 inspect under, right to, 348 licensee entitled to appropriate is 'occupier ' under, 250 notice, person entitled to give statutory, 343 power to purchase mines and minerals under, 341, 342 quarries, mines in ss. 18, 22, of, include, 9 reversioner, position of, when lessee compensated under, 343, 344 roadways between severed mines, right under, to make, 371 support, construction under, of ambiguous provisions as to. 331 u. water communications between severed mines, right under, to make. 402 present artificially, liability under, when damage from, 411, 412 WAY OF NECESSITY. (See Necessity, Way of.) WAVLEAVE. (See Airways ; Eating; Roadwa INI>F.X. ':;-. WAYLEAVE RENT, lease, reservation of, in, 223 outstroke, lessor may have compensation l»y way of, for improper work by, 239 transport through his property, neighbour may have COi of, for improper, 378 WAYS. (See Airways ; Necessity, Way of ; Roadways.) ' WAYS AND ROADS,' meaning of, in mining lease, 247, 247 u. WEARDALE, STANHOPE IN, tithe-ore due by custom in, 521 WEIGHT, payment of wages by, 5S3, 584 WEIGHTS AND MEASURES ACT, application of, to mines, 584 WET T S former customary rights of lord of manor of, as to Mendip mines, 521 n. WHIPPING, " ... punishmeut for malicious injuries, 540 — oVJ WIDOW. (See Dowrcss ; Jointress.) WIFE. (See Married Woman.) WILFUL DAMAGE, to appliances under Regulation Acts, 588 WILFULLY, . . water rights not exerciseable, 3S9, 403 WILL (See Death ; Devolution ; Mortmain Acts ; Will, Tenant at.) form of order for receiver aud manager of testator's mines. 262 of mines executed with same formalities as of surface property, 262 a. residuary gift in, working rights by tenant for life under, 49—51 WILL, TENANT AT, construction— tenancy at will or licence, zot Limitations, running of Statute of, when tenancy at will by entry under unenrolled bargain and sale, 526 possession of mines or quarries, right of, is in, o2-6i, "! possession of mines or quarries, right of, in, 32, '.V.), 70, 533 trespass or account against stranger at instance of, 533 user, right of, 70 YEARS, TENANT FOR. 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