COVENANTS WITH RESERV ATION OF MINES. General laws relating to mines. Rights of tenant for life in respect of mines. appurtenances and the inheritance thereof, in fee-simple, at or for the price or sum of £, excepting, nevertheless, may be greatly doubted. (See 16 Ves. 392, and the former part of this note). It has been said that a recovery could not be suffered of mines, because they were not in demesne, but only in profit. (5 Com. Dig. by White, 340). But it is apprehended that although they are not specifically mentioned in the stat. 3 & 4 Will. 4, c. 74, they are included therein under the term "hereditaments." Mines are not titheable of common right, although in some places they are so by custom. (3 Com. Dig. by White, 45). Dower is due of mines wrought during the coverture, either by the husband himself or his lessees, and whether the mines are under the husband's own land, or under the lands of which the soil belongs to others; (Stoughton v. Leigh, 1 Taunt. 402); a case which enters with considerable minuteness into the method of assigning dower of mines. Dower is not due of any unopened mines. (S. C.) A tenant for life or years may dig and take the profits of mines which are open; (Co. Lit. 54. b.; Campbell v. Leach, Amb. 740); and may open new pits or shafts for working old veins; (Clavering v. Clavering, 2 P. Wms. 388); but he cannot open a new mine. (Co. Lit. 53. b., 54. b. ; Campbell v. Leach, ubi supra). If there be open mines, and a lease be made of the land and mines, this will only comprise the open mines; but if there be no open mine, and a lease is made of the land, together with all mines therein, the lessee may open and work the mines. (Co. Lit. 54. b.; Saunders' case, 5 Rep. 12). This principle does not, however, extend to the case of a tenant for life under a settlement where the mines are only mentioned among the general words. (Whitfield v. Bewit, 2 P. Wms. 240.) See further the notes on mining leases in the next volume of this work. If lands containing mines be in settlement, it is the duty of the trustees for preserving contingent remainders to take care that the mines are not worked otherwise than the tenants for life, or the persons for the time being entitled to the profits, have power to work them. For it is the duty of such trustees to preserve the inheritance as entire as possible, and that inheritance consisting of the land, timber, and mines, cannot be preserved entire without preserving all three. (See Lord Hardwicke's judgment in Garth v. Cotton, Dickens, 196, 202). In a case in which there was a lunatic tenant for life with remainder to his first and other sons in tail, an agreement by the committee of the lunatic that the coal under the lunatic's estate should be worked by the owner of the adjoining land, was established by the Lord Chancellor, but the circumstances of the case were very peculiar. (Ex parte Tabbert, 6 Ves. 428). If a tenant for life make a lease of mines, he cannot have relief against and reserved out of the said contract or agreement for purchase, all the coal mines, seam and seams of coal, lying the lessee, even though the granting of the lease may cause a forfeiture of the life estate, and the remainder-man cannot join the tenant for life against the lessee, but must sue alone. (Wentworth v. Turner, 3 Ves. 3). Mines cannot in ordinary cases be wrought to advantage, or even wrought at all, without a considerable outlay of capital in machinery, and in the making of shafts, levels, and other necessary works. And hence, notwithstanding mines are real estate, they are for many purposes considered in a court of equity as a trading concern. (Story v. Lord Windsor, 2 Atk. 630; S. C. 1 Cha. Ca. 34; Wren v. Kirton, 8 Ves. 502; Jeffereys v. Smith, 1 Jac. & Walk. 298; Williams v. Attenborough, Turn. & Russ. 70; see, too, 1 Swanst. 518, 3 Atk. 15). A court of equity, too, uses its power of granting injunctions with great caution in the case of mines, because of the irreparable injury which a cessation of working may occasion. (Anon. Amb. 209; Clavering v. Clavering, 2 P. Wms. 388; S. C. 2 Eq. Ca. Abr. 589; 18 Ves. 516). And when a person who claims a right to mines has stood by for a long period, and seen persons at their own expense working the mines, and expending money on them, a court of equity will not interpose by injunction, but will leave the parties to their remedy at law. (Field v. Beaumont, 1 Swanst. 208; Parrott v. Palmer, 3 My & Ke. 632). And the same principle is applied as to the appointment of a receiver. (Norway v. Rowe, 19 Ves. 156). But of course the objection to an injunction does not apply when the mine has not been opened. (Grey v. Duke of Northumberland, 13 Ves. 236). The reluctance of the court to grant an injunction in the case of mines leads to a relaxation of the general rule, that without an injunction there can be no account. And in mining cases the court will decree an account even if it think fit to refuse the injunction. (3 Atk. 263, 264; Parrott v. Palmer, 3 My. & Ke. 632; see, too, the cases on these points collected 3 My. & Ke. 634). It should be observed, however, that where a person, having begun to work a mine in his own land, works into that of another, the court will grant an injunction to restrain his proceedings. (Mitchell v. Dors, 6 Ves. 147). A copyholder, whether of inheritance or for lives or years only, has a possessory interest in mines; and a copyholder of inheritance or for lives with a positive right of renewal, may, by immemorial custom, have a proprietary right in mines. But without such custom the proprietary right of mines is in the lord; and hence, in the absence of a special custom, neither the tenant without the license of the lord, nor the lord without the consent of the tenant, can open and work mines. (Scriven on Copyholds, 484; Gilb. Tenures, 327; Bishop of Winchester v. Knight, 1 P. Wms. 406; Bourne v. Taylor, 10 East, 189, and the cases and authorities there cited). The Court of Chancery will grant an injunction against the COVENANTS WITH RESERV- Doctrines of equity in respect of mines. Mines in copyhold lands. -to whom they belong. COVENANTS WITH RESERV ATION OF -that powers of mining should be given to the vendor. Witnesseth. Parcels. or being in, within, or under, or to be wrought or gotten from, forth, or out of the said closes or parcels of land, or any of them: AND WHEREAS, upon the treaty for the said purchase, it was agreed that the several powers, liberties, and privileges, hereinafter contained, of or relating to the winning, working, taking, leading, and carrying away the said coal mines, seam and seams of coal, should be given or limited to the said A. B., his heirs and assigns, in manner hereinafter mentioned: NOW THIS INDENTURE WITNESSETH, that, in pursuance of the said agreements, and in consideration &c., (supra, p. 194), he the said A. B. hath granted, aliened, released, and confirmed, and by these presents doth grant, alien, release, and confirm unto the said C. D., (in his actual possession &c., supra, p. 198), ALL THOSE the closes or parcels of land, opening of a mine by a copyholder, unless a custom be shewn in support of the right. (Grey v. The Duke of Northumberland, 13 Ves. 206; and see, further, Lord Cullen v. Rich, Bull. N. P. 102; Rowe v. Brenton, 8 B. & C. 737; S. C. 3 Man. & Ry. 133; Lewis v. Braithwaite, 2 B. & Ad. 437; Parrott v. Palmer, 3 My & Ke. 632; and see the cases cited Ib. 634). In the last case it was attempted to establish, that the law which gave the lord the right to the soil and to whatever lay below the surface of the ground in copyholds, did not extend to customary freeholds, but the point was not decided. It may, however, be observed, that the copyholder is not excluded from all that lies below the surface, for he may dig for marl, for manure, and perhaps for clay. (Pastor's case, Winch. 8; 3 My. & Ke. 637). A right in the lord to one class of minerals may exist consistently with a right in the tenant to another class. (Curtis v. Daniel, 10 East, 273). It is not necessary, for the objects of this publication, to enter into any examination of the evidence which will be required of a customary right; it does not materially differ from that required in respect of other customs. (See Curtis v. Daniel, and Rowe v. Brenton, ubi supra; Doe d. Mason v. Mason, 3 Wils. 63; Roe d. Bennett v. Jeffery, 2 Mau. & Sel. 92; Doe d. Dauncey v. Dauncey, 7 Taunt. 674; 2 Atk. 189; and Scriven on Copyholds, 570, et seq.; Locke v. Colman, 2 My. & Cra. 635). The lord of a manor stands in the same situation as any other claimant of mines, if he permit the tenants to work the mines without putting forward his claim; that is, he is left to his remedy at law, and is not entitled to an injunction from a court of equity. (Parrott v. Palmer, 3 My. & Ke. 652). WITH RESERV ATION OF MINES. hereinafter particularly mentioned, (that is to say), [par- CONVEYANCE cels-general words]: To HAVE AND TO HOLD the said closes or parcels of land and hereditaments, and all and singular other the premises hereinbefore granted and Habendum to released, or expressed and intended so to be, unto the uses, said C. D., his heirs and assigns, to the uses, nevertheless, and for the intents and purposes, and under and subject to the declarations and agreements hereinafter limited, expressed, and contained, (that is to say), (b): (b) It may be observed, that although, in the precedent in the text, the mines and rights of mining are included in the conveyance, and limited back to the vendor, yet that this course is by no means the usual one. The more common practice is to except and reserve the mines and rights of mining out of the conveyance, and, unless in peculiar circumstances, that form is to be preferred. It was not, however, thought necessary to alter the arrangement of the draft from which the precedent in the text was taken, as the desired alteration can be readily made, and it may in some cases be advantageous to convey and relimit the mines. The following form may serve as an example of the common mode of excepting the mines out of a conveyance : : "Save and except out of this present conveyance, all mines, quarries of coal and ironstone, and other mines and minerals whatsoever, now found, or at any time or times hereafter to be found, under the said hereditaments and premises hereinbefore released, or expressed and intended so to be, or any of them or any part thereof, with full power and authority for the said [vendor], his heirs, assigns, or other the person or persons for the time being entitled to the said mines and minerals and excepted premises, (this refers to the case of the vendor not being entitled in fee-simple), and his and their lessees, agents, and workmen, at all times to enter upon the said hereditaments and premises, and every part and parts thereof, to seek and search for the said mines and quarries, and to open and work the same, and erect any steam or other engine or engines, or machinery, and to do all acts necessary for working, winning, washing, and carrying away the said mines, quarries, coal, iron-stone, and other minerals, and also all such other rights of entry, and other rights, privi Mode of excepting mines from a convey ance of the soil. CONVEYANCE WITH RESERV. ATION OF As to the coal and the powers of mining, to the use of ven dor in fee. AS TO ALL those the coal mines, seam and seams of coal, lying and being in, within, or under, or to be had, wrought, or gotten from, forth, or out of all those the said several closes or parcels of ground, lands, and hereditaments hereinbefore released, or expressed and intended so to be, together with all such liberties, privileges, and powers of making, sinking, and working pits, shafts, drifts, levels, drains, water-courses, pools, and embankments, and of making, laying, placing, using, and repairing pit-room, heap-room, pit-hills, waggon-ways, branches, and other ways, bridges, mounts, and batteries, and of making, erecting, and repairing hovels, lodges, sheds, whimseys, gins, fire and steam-engines and other engines, edifices, buildings, works, and machinery (c) whatsoever, in, under, and upon, through, over and along the said closes or parcels of land and hereditaments herein before released, or expressed and intended so to be, or any of them, or any part thereof, as the said A. B., his heirs or assigns, shall deem necessary or proper, convenient or useful, in or for the searching for, winning, working, taking, leading, and carrying away, and selling or disposing be neces leges, and easements whatsoever, as shall or may With respect to the nature of the exception of mines and mining powers, see the observations of Bayley, J., in the Earl of Cardigan v. Armitage, 2 B. & C. 206. (c) Care should be taken that the appropriate local technical terms, as well as general terms, be employed. |