Bills of sale. land within the 4th section (f). The sale of pasture or of a permanent crop, as of grass, to be cut or fed by the buyer, is a contract concerning an interest in land within the 4th section (g). 66 By the Bills of Sale Act, 1878, 41 & 42 Vict. c. 31, s. 4, 'personal chattels," the subjects of bills of sale, are interpreted to mean, amongst other things, "growing crops when separately assigned or charged," but not to include growing crops when assigned together with any interest in the land on which they grow." By the Bills of Sale Act, 1882, 45 & 46 Vict. c. 43, s. 4, a schedule is to be annexed to a bill of sale, confining its effect to the personal chattels comprised in the schedule; but s. 6 (1) excepts "any growing crops separately assigned or charged where such crops were actually growing at the time when the bill of sale was executed." The separate assignment is construed to mean an assignment separately from any interest in the land on which they grow, and not also separately from other goods (h). The original Bills of Sale Act, 1854 (repealed by the above Act, 1878), applying to "goods and other articles capable of complete delivery," was construed not to apply to growing crops (i). If subsequently to the granting of a bill of sale including growing crops, they are severed by the grantor, they become personal chattels ; and the bill of sale must be registered and satisfy all requirements of the Bills of Sale Acts in order to secure the crops to the grantee in the event of the grantor becoming bankrupt while they still remain in his possession (). (f) Evans v. Roberts, 5 B. & C. 829; Jones v. Flint, 10 A. & E. 753; Scovell v. Boxall, 1 Y. & J. 396; Rodwell v. Phillips, 9 M. & W. 501; Leake on Contracts, p. 258. (g) Crossley v. Wadsworth, 6 East, 602; Carrington v. Roots, 2 M. & W. 248. (h) Roberts v. Roberts, L. R. 13 Q. B. D. 794; 53 L. J. Q. B. 313. (i) Brantom v. Griffits, L. R. 2 C. P. D. 212; 45 L. J. C. P. 588; Exp. Payne, L. R. 11 C. D. 539. (k) Exp. National Mercantile Bank, L. R. 16 C. D. 104; 50 L. J. C. 231. CHAPTER V. MINES AND MINERALS. Property in minerals-separate property in minerals-power to sell minerals separately. -con Licence to get minerals-distinction of licence and property-co struction of grant or licence-exclusive licence-remedies of licensee. Relative rights of owners of surface and minerals-right of support for surface. Lease of minerals-right of lessee to the minerals. Rights of tenants for life or years to take minerals-open mines. Minerals in copyhold tenements-special customs-minerals in freeholds Minerals under railways-severance of access to minerals-superfluous land. Construction of terms, minerals, mines, and quarries. Prerogative of gold and silver-grants of royal mines-treasure trove -prerogative of saltpetre-public rights of mining. minerals. Property in land, as defined and bounded by the Property in superficial area, presumptively extends to everything contained below the surface, including whatever passes under the description of minerals, except gold and silver, which are a prerogative right of the Crown (a). A conveyance of land in fee simple primâ facie passes the minerals and everything below the surface (b); and possession of the surface is primâ facie evidence of the ownership of the soil beneath, including the minerals (c). Minerals may be partitioned from the surface and Separate treated as a separate subject of property. The owner of property in (a) Co. Lit. 4a; post, p. 70. (b) Egremont Burial Board v. Egremont Iron Co., L. R. 14 C. D. 158; 49 L. J. C. 623. (c) See Tyrwhitt v. Wynne, 2 B. & Ald. 554; Seddon v. Smith, 36 Law Times, 168. minerals. land or minerals separately. land may create a separate property in minerals; either by granting away that part of the land which contains the minerals, reserving to himself the surface and all other parts; or by granting away the land, with express exception to himself of the part containing the minerals. In either way the minerals thus partitioned from the rest of the land constitute a separate corporeal hereditament subject to all the incidents of real property, so far as they Power to sell apply to such special form of hereditament (d).-A power or trust to sell land in general terms does not authorize a sale of the surface with exception of the minerals, or of the minerals separately from the land (e). The statute 25 & 26 Vict. c. 108, was passed to confirm dispositions of land and minerals separately, which were then liable to be invalidated from the above cause. It proceeds by sect. 2 to extend for the future trusts and powers of sale by enacting that "Every trustee or other person authorized to dispose of land by way of sale, exchange, partition or enfranchisement, may, unless forbidden by the instrument creating the trust or power, so dispose of such land with an exception or reservation of any minerals, or may dispose of by way of sale, exchange or partition, the minerals separately from the residue of the land;" but not without the previous sanction of the Court of Chancery. The statute applies to mortgagees having powers of sale, as well as to trustees (f). Under this statute the Court may give a general order or sanction to authorize the disposal of the mines and of the land separately and at different times as occasion may require (g).-Under the powers of the Settled Land Act, 1882, 45 & 46 Vict. c. 38, s. 17, "A sale, exchange, partition or mining lease may be made either (d) Stoughton v. Leigh, 1 Taunt. 402; Wilkinson v. Proud, 11 M. & W. 33; Mellish, L. J., Aspden v. Seddon, L. R. 1 Ex. D. 509; 46 L. J. Ex. 353. (e) Buckley v. Howell, 29 Beav. 546; 30 L. J. C. 524. (f) Beaumont's Trusts, L. R. 12 Eq. 86; 40 L. J. C. 400; Wilkinson's Estates, L. R. 13 Eq. 634; 41 L. J. C. 392. (g) Wynn's Estates, L. R. 16 Eq. 237; 43 L. J. C. 95. See Palmer's Will, L. R. 13 Eq. 408. 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," and other powers and privileges connected with mining purposes in relation to the settled land or any other land. minerals. A licence may be granted to enter land and to search Licence to get for and get minerals without granting any estate in the land itself; the grantee then takes no estate or property in the land or in any specific portion of it, but acquires property only in such minerals as he may get under the licence; which" is no more than a mere right to a personal chattel, when obtained in pursuance of incorporeal privileges granted for the purpose of obtaining it" (h). The licence is an incorporeal hereditament of the nature of a profit à prendre in the land of another. As such, it may be claimed by prescription; whereas an estate or property in the land itself cannot be so claimed, but must be claimed by a title founded on seisin or possession (i).-A Distinction of licence may be as beneficial as a grant of property as re- property. gards the getting of the minerals; but it does not carry with it, as the latter does, any other proprietary uses and profits of the space containing the minerals. For instance, a mere licence to work a substratum of minerals does not give the right to use the space as a way for passage and traffic to and from adjacent mines, which is an ordinary incident of the property in the substratum itself (). So the licence to take minerals of a specified kind would not give any right to take other minerals found in combination with them in the same working; as in the case of a tin (h) Per cur., Doe v. Wood, 2 B. & Ald. 739; Muskett v. Hill, 5 Bing. N. C. 706. (i) See post, p. 329. v. Proud, 11 M. & W. 33. Wilkinson (k) Ramsay v. Blair, L. R. 1 Ap. Ca. 701; Duke of Hamilton v. Gra- licence and of grant or licence. bounder extracting copper with the tin, who has no right to the copper, nor to any other metal than the tin which. he in fact extracts (/).-Whether a deed operates to conConstruction vey the land itself containing minerals, or only to give a licence to get minerals within the space defined, is a question of construction of the words used. Such a licence cannot be given by way of exception to a grant of land, because nothing can be the subject of an exception, strictly speaking, that is not part of the thing granted, and the licence is a new and distinct species of right which can be created by grant only. If expressed to be reserved or excepted out of land granted, it can take effect only by implying a re-grant of the licence from the grantee of the land to the grantor. Hence where mines and minerals. are expressed to be an exception from a grant of the land, they will in general be construed according to the literal form of words as intended to except the soil itself containing the minerals, and not as creating a mere licence to take them (m).-A licence may be exclusive of the owner and of any other person; or it may admit of similar licences being granted to others not inconsistent with the former. A licence to take minerals is presumptively not exclusive, and is so construed in the absence of intention. expressed to the contrary (»). "A man taking a licence when he is under no obligation to work cannot exclude his licensor from granting as many more of those licences as he thinks fit; provided always, that they are not so granted as to defeat the known objects of the first licensee in applying for his licence" (o).-The licensee of an exclusive right to take minerals, who has opened a mine in exercise of his right, may maintain an action of trespass Exclusive licence. Remedy of licensee. (1) Per cur., Rogers v. Brenton, 10. Q. B. 56; ib., note at p. 65. (m) Proud v. Bates, 34 L. J. C. 406; Duke of Hamilton v. Graham, L. R. 2 Sc. Ap. 166; per cur., Ballacorkish Mining Co. v. Harrison, L. R. 5 P. C. 62; Wickham v. Hawker, 7 M. & W. 63; Doe v. (n) Mountjoy's Case, Co. Lit. 164 b, 1 And. 307; Godb. 17; Chetham v. Williamson, 4 East, 469. (0) Wood, L. J., Carr v. Benson, L. R. 3 Ch. 532. |
