CHAP. XIV.

WORKING OUT OF BOUNDS.

THE working of coal beyond the limits to which the proprietor of the mine is entitled is sometimes a source of great mischief. It is not only the loss of the coal itself which may be involved, but the barrier left by the neighbouring miners may be broken through, and thus bring about calamitous results to life and property. The remedy for this injury is an action of trespass. In an action of trespass for taking away coal under such circumstances, the plaintiff is entitled to recover the value of the coal at the time of its severance from the soil, and the trespasser cannot claim any deduction therefrom in respect of the expense incurred by him in getting the coals, unless there is a fairly disputed title. This value is the selling price at the pit's mouth, after deducting the expense of carrying the coals from the place in the mine where they were got to the pit's mouth. The plaintiff is also entitled to compensation for all injury done to his soil by digging, if the approach be made from the surface by new excavations. The estimate of the loss from the removal of the coal depends upon the value of the coal at the time of its severance from the soil; and the defendant has no right to any deduction

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in respect of royalty payable by the plaintiff to the mine owner on coals got from the mine.*

The recent case of Hilton v. Woods (Law Reports, Equity, 1867, p. 433) is an authority upon the question of compensation to the owner for coal improperly worked by the occupier of an adjoining mine. "It is clear," says Sir R. Malins, "that a different principle is applicable when the coal is taken inadvertently, or (as in the present case) in the bona fide belief of title, and when it is taken fraudulently, with full knowledge on the part of the taker that he is doing wrong, or, in other words, committing a robbery. In such cases it may be proper to apply the strict rule laid down in Martin v. Porter (5 M. & W. 351), which is, to charge the full value of the coal without allowing any of the expenses of getting it. But in cases where no such ingre dients have existed, a milder rule has been applied.” He afterwards stated that rule to mean, that the fair value of the coals should be given, as if the coal field had been purchased from the plaintiff at the fair market value of the district.

If the adjoining owner sinks a mine in his own land, and makes lateral excavations, trespassing upon the minerals of a lessee to whom that land has been demised generally, and in which the minerals are not yet worked, without disturbing the surface of the land, the lessee may maintain an action for the trespass to his possessory interest, and the lessor may maintain an action for the injury to his reversionary estate. If the surface and minerals have been severed

* Martin v. Porter, 5 M. & W. 352; Wild v. Holt, 9 M. & W. 672; Addison on Torts, 180.

in title, and become separate tenements, then the grantee or owner of the minerals is the only person entitled to sue in respect of trespasses upon them.*

In order to avoid this kind of trespass, and the expense and responsibility it involves, proper underground surveys ought to be constructed by competent surveyors, which serve to prevent such trespasses as are not wilful and intentional.

There is no difficulty in ascertaining by such surveys the precise position of the workings to a yard. Surveys and maps ought to be kept in the office of the colliery. And when this mode of self-protection is not attended to, the trespasser, even by accident, cannot justly complain if he is made to pay, by way of damages, the value of the coal at the pit's mouth, without being allowed to deduct the wages he may have paid for cutting it, and certain other expenses connected with raising it to the surface.

In the new case of Davies v. Sheppard (35 Law Journ. Chan. 531), the view of the Court of Chancery with respect to a mistake in quantity, and the expression " or thereabouts," may be found.

The mines under a farm of 181 acres were supposed to be divided by a fault running north and south in such a way as to leave about 83 acres on the west and 98 acres on the east; and the owners, by several agreements, agreed to demise to S. the mines lying to the westward of the fault, "supposed to be 83 acres or thereabouts," and to D. the mines lying to the east of the same fault, "supposed to 98 acres or there

* Keyse v. Powell, 22 Law Journ. Q. B. 305.

abouts," and each lessee was to pay, in addition to a royalty, a dead rent amounting to about 27. per acre on the estimated area of the mines demised to him. No lease was executed to either of the lessees, but they entered upon and commenced working the mines agreed to be demised to them respectively. S. in the course of his working arrived at a fault, which, if taken as the boundary between the mines agreed to be demised to him and those agreed to be demised to D., would leave him only eight acres instead of 83, and he worked through the fault. D. then filed a bill for an injunction to restrain him from so working, and one of the Vice-Chancellors granted the injunction; but upon appeal this decision was reversed, the court being of opinion that, assuming the fault worked. through by the defendant to be the same as the fault indicated in the agreement (which was not clear), the plaintiff was not entitled to a lease of mines so largely exceeding the estimated acreage of the mines agreed to be demised to him as the mines lying to the eastward of the fault, and he could not be considered as constructively in possession of more than the lessors had by their agreement bound themselves to demise.

In construing the words "or thereabouts," when used to qualify the statement of the estimated quantity of mines agreed to be demised, the same principles ought to be acted upon as would guide the court in construing the same words in an agreement for sale or demise of the surface.

In the case of R. v. Hickman and others, tried at Stafford, in March 1861, before Mr. Baron Wilde, an attempt was made to give a criminal character to

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acts of this nature. The prosecutor was the occupier of a colliery, and the prisoners were in partnership, and occupied an adjoining colliery. This last had been partially worked out by other previous occupiers, but in 1857 the prisoners took a lease of it, and continued the works by taking out the ribs and pillars. In February 1860, the prosecutor, in consequence of suspicions, applied to the prisoners for leave to inspect their workings, which was refused. July the prisoners, on being applied to by the prosecutor's solicitor, gave permission. It was then discovered that a brick wall had been made across a gate-road near the boundary of the two mines, in consequence, as the prisoners said, of the fire-damp, which made it impossible to work further in that direction. The prisoners refused to remove this dam. A mining engineer deposed that in 1859 he had informed the prisoners that they had carried the gateroad a little beyond their boundary, through the prosecutor's mine. Another witness, who had been in their employ early in 1860, proved that not only had this gate-road been carried about 100 yards through the prosecutor's mine, but that he had been told by the prisoners to get the coal on both sides of it. It was thick coal, and was about twenty yards in thickness, and this witness said that it had been taken by order of the prisoners, who superintended the under-ground work, to the extent sometimes of fifteen yards in width. It was after this that the dam was constructed, and the suggestion was made that the dam was for the purpose of concealing what had been done.

The prosecutor admitted that