THE RIGHT TO WORK MINERALS.

1. When the Owner does not hold the Surface. We have next to consider in what cases the proprietor of coal strata is entitled to work them, when the property in them is separated from that of the surface, and forms a distinct inheritance and possession.* Mineral property in this condition is held either by express grant or exception, or by virtue of acts of ownership which have created a prescriptive right, by lapse of time, against the owners of the surface. In this last case the acts themselves have established the full right to work. It is a general rule that when anything is granted, the means of attaining it, and all the fruits of it (so far as the power and estate of the granter extends), are also granted.† Thus a grant of minerals involves also the power and right to enter and work them, unless there is some restriction in the grant itself. Any special power will be limited in its duration and consequences by the particular expressions which confer it. In all well-prepared instruments, compensation is provided in such cases for injuries to the surface. But in the absence of such express stipulation, it is presumed that proper compensation would still be recovered, unless any words in the instrument itself could be construed to

* It may be convenient to state that if A., the owner of land, lets B. open a shaft to dig for minerals without any other express stipulation, B. is bound to fence that shaft. (Williams v. Groucott, 27 J. P. 693.)

† As to the right to sink through an upper seam, see page 29.

withhold it.* Of course a person can only grant what he himself possesses, and, therefore, in the case of minerals under copyhold lands, though the lord may grant the property in those minerals to another, he cannot grant the right of entry to work them.

2. Rights of Persons with limited Interests.

A tenant in tail has an estate of inheritance, to hold to himself and the heirs of his body, or to himself and particular heirs of his body. These tenants in tail, as they have estates of inheritance, are entitled to commit every kind of waste, but this power continues only during the life of the tenant in tail. When it is said that tenants in tail may commit every kind of waste, the meaning is, that they can do those acts to the land which tenants who have not an estate of inheritance cannot legally do. Now, as waste consists, amongst other things, in opening new mines or quarries, it follows that a tenant in tail may do these acts. Tenants in tail, after possibility of issue extinct, are also not impeachable for waste, but, like tenants for life, when their estate is given without impeachment of waste, they may be restrained from wilfully destroying the estate.

A tenant for life, without being authorized, cannot commit waste. A mortgagee in fee in possession has a right at law to commit any kind of waste, being then considered as the absolute owner of the inheritance; but he will be restrained by a Court of Equity, which will direct an account of timber, for instance,

* Bainbridge on Mines, 59.

cut down, and order it to be applied in reduction of the mortgage debt.

Copyholders cannot, unless there be a special custom to warrant it, commit any kind of waste, and every species of waste not warranted by the custom of the manor, operates as a forfeiture of the copyhold.

Ecclesiastical persons who hold lands in right of a church, are disabled from committing waste, though, like other tenants for life, they have the right to take from the land the materials necessary for repairs. They cannot legally open new mines, but they may work those already open. And this distinction between mines already opened and unopened is important in other cases besides that of ecclesiastical persons. Lord Coke says, "A man hath land in which there is a mine of coals, or the like, and maketh a lease of the land without mentioning any mines, for life or for years; the lessee for such mines as were open at the time of the lease made, may dig and take the profits thereof. But he cannot dig for any new mine that was not open at the time of the lease made, for that should be adjudged waste. And if there be open mines, and the owner make a lease of the land with the mines therein, this shall extend to the open mines only, and not to any hidden mines. But if there be no open mine, but the lease is made of the land together with all mines therein, then the lessee may dig for mines and enjoy the benefit thereof, otherwise these words should be void."* But this last proposition

is not now held to be law. There is but little difference in this respect between a tenant for life and for years. Both are now equally punishable for waste, and both may work mines already opened.

But a tenant for life, without impeachment of waste, may open and dig mines at his own pleasure, though a Court of Equity would probably interfere if it were shown that he was exercising his privilege in a wanton or malicious manner. For every mining operation is to some extent a destruction of the property, and must be exercised fairly.

A jointress, tenant for life, is in the same situation as an ordinary tenant for life, and may be with or without impeachment of waste. An estate by the curtesy, and an estate in dower, are also estates for life, and the holders are punishable for waste. Coparceners, joint tenants, and tenants in common, are also liable to each other for waste; but they may all concur among each other in an act of waste, provided this concurrence includes all.*

The remedies for waste are either by action of trespass on the case in the nature of waste, which may be brought by the person in reversion or remainder, for life or for years, as well as in fee; or, secondly, by application to the Court of Chancery by bill, which will then not only direct an account to be taken for the damage done, but will interpose, by way of injunction, to restrain the commission of future waste. Ecclesiastical persons may also be proceeded against

* 11 Rep. 49 a; Denys v. Shuckburgh, 4 T. & C. 42; Durham and Sund. Rail. Co. v. Wawn, 3 Beav. 119.

for waste in the Civil as well as the Ecclesiastical Courts. It has been held that an action will lie against them for dilapidations, and may be brought by the successor to a benefice against his predecessor or his representatives. There is also no doubt that the Court of Chancery may grant an injunction against any ecclesiastical person to stay waste in cutting down timber, or opening new quarries or mines on the glebe.