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the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore if a

the tenant, to open new mines under the lands occupied by such tenant. (Bishop of Winchester v. Knight, 1 P. Wms. 408. And see, as to the latter point, the opinion of two Judges against one, in the Lord of Rutland v. Greene, 1 Keble, 557, and infra.) The acts which a lord of a manor may do by custom, to enable him profitably to work mines, preriously opened, under lands which are parcel of his manor, must not be unreasonably oppressive upon the occupier of the lands, or the custom cannot be maintained. (Wilkes v. Broadbent, 1 Wils. 64.) And the lord of a manor cannot open new mines upon copyhold lands within the manor, without a special custom or reservation; for the effect might be a disinherison of the whole estate of the copyholder. The lord of a manor may be in the same situation with respect to mines as with respect to trees : that is, the property may be in him, but it does not follow that he can enter and take it. The lord must exercise a privilege over the copyholder's estate, if during the continuance of the copyhold he works mines under it; and a custom or reservation should be shown to authorize such a privilege: but as soon as the copyhold is at an end, the surface will be the Lord's as well as the minerals, and he will have to work upon nothing but his own property. {Grey v. The Duke of Northumberland, 13 Ves. 237 ; 17 Ves. 282; and S. P., at law, under the title of Bourne v. Taylor, 10 East, 205, where all the leading cases on the subject are discussed.) The right to mines may be distinct from the right to the soil. In cases of copyholds, a lord may have a right under the soil of the copyholder; but where the soil is in the lord, all is resolvable into the ownership of the soil, and a grant of the soil VOL. II.

will pass every thing under it. ( Townley v. Gibson, 2 T. R. 705.)

It seems, then, that royal mines, if any such exist in this country, do not belong to the owner of the surface: that with respect to other minerals, even under freehold land, "every day's experience in the mining countries" is not uniform: and that as to mines under customary or copyhold lands, neither the lord of the manor, who has the freehold, nor the tenant who has the enjoyment of the surface, can open fresh mines, without a special custom or express compact. The lord of the manor has, indeed, in a certain sense, the property in such mines ; but if the estate of the customary or copyhold tenant of the surface be an estate of inheritance, the lord may never be able to make his qualified property in the mines available, except by purchasing the right to work them. This may, perhaps, serve to explain the dictum in Lord Cullen's case, (2 Str. 1142,) that "mines are a distinct possession, and may be different inheritances."

If the owner of a fee grants, by indenture, liberty to dig for minerals throughout certain lands therein described, and to raise and dispose of the same for the grantees own use, and to make adits necessary for the exercise of that liberty, habendum for twenty-one years: this deed operates as a license only, and not as a demise of the metals and minerals, so as to vest in the lessee a legal estate therein during the term. By such a deed, the grantor does not part with all the ores then existing within the land, but such parts thereof only as should, under the power given to search and get, be found within the described limits, which is nothing more than a license to search or get, with a grant of such of the ore only as should be found and got, the grantor parting with no estate or interest in the rest. The grantee, therefore, has no estate or property in the land itself, or in any part of the minerals ungot therein: he has a right of property only as to such part thereof, as upon the liberties granted to ltiin should be dug and got. This is no more than a right to a mere personal chattel, bci ng very different from a grant or demise of the mines, or minerals, in the land. (Doe v. Wood, 2 Barn. & Aid. 736.) In the case just cited, it was held, that, under the circumstances stated in that case, the grantee could not maintain an action of ejectment. (9) The different rights of free fishery, several fishery, and common of piscary, are enlarged upon, post, in the 7th section of the next chapter, pp. Mh 10, and the notes thereto. It will there be seen, that, however indisputable it may be, that, by a grant of waters, nothing passes but a right of fishing therein; it is not equally well settled, whether, by grant of a several piscary, the soil does, or does not pass. Lord Coke observes, (1 Inst. 5 b,) "by grant of a vivaryc, not only the privilege, but the land itself passes." And, in his note on the 11th chapter of the Statute of Merton, (2 Inst. 100,) he says, " Vivarium is a word of large extent. Most commonly in law it significth parks, warrens, and pischaries or fishings; here it is taken for warrens and fishings." Probably, the term rirarye is most correctly applied to places in which animals that have been deprived of the full liberty

man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, ex[ * 19 ] cept in the instance of* water; by a grant of which, nothing passes but a right of fishing (p) (9): but the capital distinction is this, that by the name of a castle (10), messuage (11),

(g) Co. Litt. 4.

of their natural state are preserved; and, where fishes are the subjects, a vivarye may only mean an inclosed fish-pond, orstew, not an open stream.

(10) By the name of a castle, one or more manors may be conveyed ; and e converso, by the name of a manor, a castle may pass. 1 Inst. 5; 2 Inst. 31. —Ch. [" Land may be parcel of New castle; castle, honour, and the like, are things compound, and may comprise messuages, lands, meadows, woods, and such like." (Hill v. Grange, 1 Plowd. 1G8, 170.)—Ed.]

(11) A messuage, in intendment of law, primd facie comprehends land, and it will be presumed that ^curtilage, at least, belongs thereto. (Scholes v. Hargreaves, 5 T. R. 48; Hockley v. Lamb, 1 L. Raym. 726; Seamier v. Johnson, T. Jones, 227 j Patrick v. Lowe, 2 Brownl. 101; it should be observed, however, that North v. Coe, Vaugh. 253, is contra.) As to the definition of the word "curtilage," see Mr. Ryland's note to Vol. IV. p. 226. Rights of common, and even of several pasturage, may be appurtenant to a messuage; (Potter v. Sir Henry North, 1 Ventr. 390;) or to a cottage; (Emerton v. Selby, 1 L. Raym. 1015;) and where common is appurtenant, in right, to a tenement, it goes with the inheritance. (1 Bulst. 1H.) So a garden may be said to be parcel of a house, and by that name will pass in a conveyance. (Smith v. Martin, 2 Saund. 401 B; S. C. 3 Keb. 44.) It has also been held, that land may pass as per

toft (12), croft (13), or the like, nothing else will pass,

except what falls with the utmost propriety under the term

made vise of (14); but by the name of land, which is nomen Ji>»ti«>«" '•>

generalissimum, every thing terrestrial will pass (//).

(A) Co. Litt. 4, 5, 6.

taining to a house, if it hath been occupied therewith for ten or twelve years, for by that time it has gained the name of parcel or belonging, and 5hall pass with the house in a will or lease. (Tligham v. Baker, Cro. Eliz. 16; Wilson v. Armourer, T. Raym. 207; Loftes v. Barker, Palm. 376.) And by the demise of a messuage, a garden and the curtilage will pass, without saying cum pertincntiis. [Cardot r. Tact, Cro. Eliz. 89.) For this purpose the word messuage seems formerly to have been thought more efficacious than the word house. (Thomas v. Lane, 2 Cha. Ca. 27; S. P. Keilway, 57.) But the subtilty of such a distinction has been since disapproved. (Doe v. Collin*, 2 T. Ft. 502.) And when a man departs with a messuage cum pertinentits, even by feoffment, or other common law conveyance, not only the buildings, but the curtilage and garden (if any there be) will pass. (Bettisworth's case, 2 Rep. 32; Hill v. Grange, 1 Plowd. 170 a; S. C. Dyer, 130 b.) A fortiori, in a will, although laruls will not pass under the word appurtenances, taken in its strict technical sense; they will pass if it appear that a larger sense was intended tobegiventoit.(/J«civ. A'urton, 1 Bos. & Pall. 57; Ongley v. Chambers, 1 Bing. 498; 9 Moo. 687; Press v. Parker, 2 Bing. 462; 10 Moo. 169.)

(12) " When land is built upon, the space occupied by the building changes its name into that of a messuage. If the building afterwards falls to decay, yet it shall not have the name of land, although there be nothing in substance left but the land, but it shall be called a toft, which is a name superior to land and inferior to messuage." (Hill

v. Grange, 1 Plowd. 170.)

(13) Croft, is a small inclosure near to the homestead.

(14) So long as fines anil recoveries were looked upon strictly as adversary suits, it was held that a reputed manor, which was not a manor in truth, would not pass by the name of a manor in a fine or common recovery, though it might in a conveyance, where the intent of the parties would help the inaccuracy of description. (Mallet v. Mallet, Cro. Eliz. 524.) But when fines and common recoveries came to be looked upon as common assurances only, they were deemed to pass, under the word manor, not only a reputed manor, but also, where it is a manor indeed, lands not in fact parcel of the manor, but which are so reputed. (Thynne v. Thynne, 1 Lev. 28; Sir Moyle Finch's case, 6 Rep. 67.) Lord Mansfield (in Massey v. Pice, Cowp. 349,) was so fully impressed with a sense of the mischief likely to result from allowing a common recovery to be reversed, upon slight objections to the accuracy of description in the prcecipe, that he strongly said, "the consequences of these objections are great; they are void of the least glimmering of common sense; and it would be attended with vast inconveniences to the public in many cases, without a possibility of doing good in any, if in common recoveries, which are a species of conveyance and common assurance, such nice exceptions were to prevail." Since this note was first published, fines and recoveries have been abolished, and more simple modes of assurance substituted, by the statute of 3 & 4 Gul. IV. c. 74.

CHAPTER III

OF INCORPOREAL HEREDITAMENTS.

Definition of As incorporeal hereditament (1) is a rieht issuing out of iRLuarau. a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same (a). It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like ; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are

1 See ante, in the note to p. 17, Mr. Feame's definition of vuorportml ktrriitomrmlt, which is analogous to that given by our author; the closeness of resemblance was to be expected, as both copied from the same original, sketched by Lord Coke.

It is to incorporeal hereditaments alone that prescription, using that word in its strict sense as referring to immemorial usage, properly applies; (see this subject enlarged upon, post, in chap. 17, pp. 263, tt L and the notes thereto;) but there is another kind of prescription, established by the statute law, which extends equally to corporeal hereditaments, and by virtue of which an uninterrupted possession for a certain number of years will give the possessor a good title, by taking away from all other persons the right of entering on such hereditaments, or of maintaining any action at law, or suit in equity, for them. (See this subject exhausted, in the arguments and judgment in the great case of Cholmtmd'ly v. Clinton, 2 Jac. A Walk. 1—206.)

Incorporeal hereditaments may be conveyed either by grant, or by bargain and sale; by covenant to stand seised, or by lease and release, for they

are within the Statute of Uses, (27 Hen- Till, c 10O in construing which, the word heredhamaits is to be understood generally, not confining its operation to such as are corporeal. To make such conveyances valid, however, by aid of the statute, the incorporeal hereditaments must be in actual existence at the time, otherwise no use can arise : {Beaadrley v. Brook, Cro. Jac. 189 :"> and where the conveyance is by grant, the grant only operates on the estate and interest of the grantor, and will pass no more than he is by law enabled to convey. Consequently, if a tenant in tail of a rent service, or a reversion or remainder in tail, grants the same in fee, and dies, this is no discontinuance (see Vol. III. pp. 171, 172.) to the issue in tail. On the same principle, the grant cannot occasion a forfeiture; thus, if a tenant for life or years of an adrowson, rent, common, reversion or remainder of land, or other incorporeal hereditament, grants the same in fee, this is no forfeiture; because nothing passes but that which lawfully may pass. (1 Inst. 251 b. 327 b.)

A particular estate, however, in any incorporeal hereditament, may be forfeited by matter of record, amounting to a clear renunciation of the feudal connexion between the tenant and his lord. Thus, before fines were abolished, if the tenant for life, of any hereditament, corporeal or incorporeal, levied a fine sur cognizance de droit come ceo, &c, this operated a forfeiture of his estate; if he accepted a fine of the same kind from a stranger, this equally caused a forfeiture; for, by admitting the reversion to be in a stranger to convey, and by accepting it himself to the prejudice of the person in reversion, he unequivocally denied the tenure. (Margaret Pager's case, 9 Rep. 106 b.) And though the reversion was not devested by a fine come ceo, levied by a tenant for life of an advowson in gross, still the act worked a forfeiture of the estate for life. {Springer v. Sir Julius Casar, 1 Rolle's Abr. 852.) But, a fine sur concessit had not the same effect; for a fine of this description only transferred such an interest as the tenant for life might lawfully pass. (Pigott v. Earl of Salisbury, T. Jones, 69; Lethieullier v. Tracy, 3 Atk. 729, 730.) And even a fine come ceo, &c, levied by a cestui que trust for life, did not cause a forfeiture; (Whetstone v. Bury, 2 P. Wms. 147;) for whatever conveyance a tenant for life of a trust makes, he cannot destroy the contingent remainders vested in the trustees, he having no legal estate in him; and his conveyance, whatever be its nature, will only pass what

(a) Co. Litt. 19, 20.

he can legally grant. A tenant in tail of a trust might, it is true, bar the remainders by a common recovery, as he may now by a simpler assurance, but that is because he is really master of the estate, and may call in the legal estate when he pleases, and have it executed to the trust; but a Court of Equity will never execute the estate in law to a cestui que trust for life, to enable him to destroy the contingent remainders. (Penhay v. Hurrell, 2 Freem. 213; Lethieullier v. Tracy, ubi supra.)

If the tenant for life of incorporeal hereditaments suffered B common recovery, wherein he was vouched, without the concurrence of the person in remainder, this operated a forfeiture of the estate for life, in the same manner as a fine come ceo levied of the hereditaments would have done. Of course the same rule applied to corporeal hereditaments. (Pelham's case, 1 Rep. 15.)

So, if the tenant of a particular estate in hereditaments, is a party to any act in a court of record, whether as plaintiff or defendant, which act, either expressly or virtually, amounts to a denial of his tenure, he will incur a forfeiture. (Co. Litt. 251 b, 252 a; 1 Roll. Abr. 851—858.) Though the statuteof 3&4Gul.IV.c. 74,abolished fines and recoveries, the titles to very many estates depend on the validity of such assurances previously put on record. The learning on the subject therefore, is not yet obsolete.

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