have not the ex- and of ejectment, in respect of his actual possession of the owners of minerals. The right to minerals separate from the surface, whether Relative by grant, reservation, or licence, necessarily implies the rights of power to get them; and, therefore, the right of using the surface and surface so far as is reasonably necessary for the purpose of getting the minerals in the proper and usual manner; according to the maxim "quando aliquid conceditur, conceditur etiam id sine quo res ipsa esse non potest." For any interference with or injury to the surface beyond what is reasonably necessary, whether wilful or negligent, the owner of the minerals is liable to the surface owner. Generally the relative rights of the parties are regulated by the deed or instrument of grant or licence creating the separate rights; and then the only question is as to the construction of the deed (r).-The right of support for the Right of surface by the subjacent minerals is of the nature of an support. easement, and is treated hereafter under the title of Easements ($). A lease of minerals or a licence to take minerals for a term of years is equivalent to a sale out and out of so much of the soil itself as consists of the minerals to be taken; and the rent reserved upon a mineral lease is not like an ordinary rent or reservation of annual profits, but it is in effect a payment by instalments of the price of the minerals sold. It is usual to reserve it in the form of a royalty, that is, a proportion of the minerals worked or of (p) Harker v. Birkbeck, 3 Burr. 1556; 1 W. Bl. 482; per cur., Rogers v. Brenton, 10 Q. B. 52. (1) Per cur. Doe v. Wood, 2 B. & Ald. 737; Doe v. Alderson, 1 M. & W. 210. (r) Lord Wensleydale, Rowbotham v. Wilson, 8 H. L. C. 360; 30 L. J. Q. B. 53; Blackburn, J., Smith v. Darby, L. R. 7 Q. B. 722; 42 L. J. Q. B. 140. (s) See post, p. 236. Lease of minerals. Right of lessee to the minerals. their value. "A mineral lease or a lease of mines is not in reality a lease at all in the sense of an agricultural lease. There are no periodical harvests. A mineral lease is really a sale out and out of a portion of land” (†). The exhaustion of the minerals within the term demised, leaving no further enjoyment or profit in the lessee, is equivalent to a determination of the lease; and the unexpired residue of the term may be disregarded. Upon a subsequent conveyance of the land with the usual covenants for title, an exhausted but unexpired mining lease was held to be no incumbrance upon the title nor any breach of the covenants (u). So, where the lessee of minerals, part of which lay under a railway, had been compensated for such part to the full value by the railway company under their statutory powers, and he afterwards. surrendered his lease to the reversioner; it was held that the reversioner retained no further right to work the minerals for which the compensation had been paid (x).— Upon this principle of a lease of minerals operating as an absolute sale of the minerals demised, the lessee becomes entitled to recover the full value of minerals wrongfully severed and taken by a stranger during the term; at the same time remaining liable to his lessor for the rent covenanted in the lease (y). The damages for a wrongful taking of minerals are, in general, assessed at the full value of the separated minerals, without allowing for the costs of the wrongful acts of severance and working. Where, however, the wrongful working has occurred boná fide, through mistake or inadvertence, the costs of working have been allowed against the full value (≈). (t) L. Cairns, Gowan v. Christie, L. R. 2 Sc. Ap. 284; L. Blackburn, Coltness Iron Co. v. Black, L. R. 6 Ap. Ca. 335; Bramwell, B., Eadon v. Jeffcock, L. R. 7 Ex. 394. (u) Spoor v. Green, L. R. 9 Ex. 99; 43 L. J. Ex. 57. (x) Smith v. Great Western_Ry. Co., L. R. 3 Ap. Ca. 165; 47 L. J. C. 97 or years to ment for Tenant for life or for years impeachable for waste, Right of cannot, in general, take any minerals or materials from the tenant for life land except so far as may be reasonably necessary for the minerals. repair and maintenance of the property. "Digging for gravel, lime, clay, brick-earth, stone or the like; or for mines of metal, coal or the like hidden in the earth that were not open when the tenant came in, is waste. But the tenant may dig for gravel or clay for the reparation of the house, as well as he may take convenient timber trees" (a). As tenant in possession he can prevent the reversioner or any other person from taking minerals; for his possession extends to everything below the surface. Therefore during his tenancy minerals can only be worked with his consent (b).—Tenant for life "without impeach- Tenant withment of waste" may take minerals or any materials from out impeachthe land for his own use to the exhaustion of the inherit- waste. ance; provided he does not exercise his right in such an unreasonable manner as would be considered equitable waste (c). Consequently minerals wrongfully taken from the land during his tenancy become vested in him, and he is entitled to recover such minerals or their value. Where coal had been taken by trespassing from an adjacent mine, during two successive tenancies for life without impeachment of waste, it was held that compensation paid for the coal taken belonged to the estates of the tenants for life in proportion to the quantities taken during their respective tenancies (d). So with minerals taken by a railway company under the Lands Clauses Act, the compensation payable belongs to the then tenant for life without impeachment of waste, if he could possibly have taken the minerals during his tenancy (e). If land containing open mines, stone quarries, gravel Open mines. pits, brickfields, or other workings of the like kind, be (a) Co. Lit. 53b; ante, p. 36. (b) Lewis v. Braithwaite, 2 B. & Ad. 437. (e) Ante, p. 23. (d) Re Barrington, L. R. 33 C. D. 523; 56 L. J. C. 175. (e) Re Barrington, supra. demised to a tenant for life or for years, without express restriction of the use, the tenant, though in other respects impeachable for waste, is entitled to continue the working and take the profits for his own use; because it is the presumed intention that the lessee shall take the profits of the land in the condition in which it is demised to him (ƒ). "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; but if there be no open mines and 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 those words should be void" (g). An assignee or underlessee of the term has no greater right in this respect than the original lessee; and if it is waste in the lessee to open mines, it is waste in his assignee to continue to work them (h).-Upon the same principle the devisee for life of land containing open mines is entitled to continue to work them for his own use, for "the author of the gift has made them part of the profits of the land"; but he is not entitled to open new mines (i). Tenant in dower, as being tenant for life in one-third of the inheritance, is entitled to work open mines as part of the profits of the land; she cannot open new mines without committing waste, but she can prevent the opening of them by others during her tenancy (k). The incumbent of a living, holding glebe land as tenant for life, may work mines previously opened; but he may not open new mines and take minerals; nor does the consent of the patron render his doing so lawful; and it is doubtful whether the further consent of the ordinary would entitle him to do so (1). Where land was demised for a term of years by way of (f) L. Blackburn, Campbell v. Wardlaw, L. R. 8 Ap. Ca. 641. (g) Co. Lit. 54 b; Saunders' Case, 5 Co. 12a; Astry v. Ballard, 2 Mod. 193. (h) Saunders' Case, 5 Co. 12 b. 466; Miller v. Miller, L. R. 13 Eq. 263; 41 L. J. C. 291. (k) Stoughton v. Leigh, 1 Taunt. 402; Dicken v. Hamer, 1 Dr. & Sm. 284; 29 L. J. C. 778. (1) Holden v. Weekes, 1 J. & H. 278; 30 L. J. C. 35. mortgage, and the mortgagor, who was owner of the inheritance, remaining in possession opened new mines, the mortgagee, on subsequently taking possession, was held entitled to work the new mines opened since his mortgage, as forming part of his security (m).-Upon the same principle the tenant for life of settled land which is let on mining leases at the time of making the settlement is held entitled to take the rents and royalties payable in respect of the minerals gotten, "though they are really instalments of the purchase-money of part of the inheritance" (n). Where tenant in tail of settled land opened mines and died without issue, the tenant for life in remainder was held entitled to continue the working of the mines during his possession (0). Whether a working for mineral or material is to be What are considered an "open mine," which a tenant impeachable open mines. of waste may work for his own use, depends upon the purpose for which it was opened. "If a mine or quarry has been worked for commercial profit, that must ordinarily be. decisive of the right to continue working; and, on the other hand, if minerals have been worked or used for some definite and restricted purpose, (e.g. for the purpose of fuel or repair to some particular tenements,) that would not, alone, give any such right. But if there has been a working and use of minerals not limited to any special or restricted purpose, there appears nothing to justify the introduction of sale, as a necessary criterion of the difference between a mine or quarry which is, and one which is not, to be considered open in a legal sense. Use, as well as sale, is a perception of profit" (p). Mere preparations made for opening a mine are not sufficient to entitle a (m) Elias v. Snowdon Slate Quarries Co., L. R. 4 Ap. Ca. 454; 48 L. J. C. 811. (n) Miller v. Miller, L. R. 13 Eq. 263; 41 L. J. C. 291. Jessel, M. R. Brigstocke v. Brigstocke, L. R. 8 C. D. 363; 47 L. J. C. 817. (0) Clavering v. Clavering, 2 P. Wms. 389. (p) L. Selborne, Elias v. Snowdon Slate Quarries Co. L. R. 4 Ap. Ca. 465; 48 L. J. C. 811. |
