Winning minerals. succeeding tenant for life to complete the opening and work the mine (2). And opening mines in part of the land is not equivalent to opening similar mines throughout (). But the sinking of a new mine in the same vein of minerals, or breaking ground in a new place in the same quarry, is not necessarily a new opening; it may be merely a continuation of the former working (s). So the right of taking gravel from a pit implies the right of taking it from the sides of the pit, so as to extend the pit laterally (t). Upon this principle "the whole of the gravel or sand upon the waste land of a manor may be treated as one mine, and each gravel pit as if it were a fresh pit in the mine," and the profits will belong as income to the tenant in possession (u). A mine that has been abandoned merely because it could not at the time be worked at a profit may still be considered an open mine. But a mine that has been abandoned by the owner of the inheritance, with the view to some permanent advantage to the property, would, in general, be no longer considered an open mine (r). And a tenant for life would not be entitled to re-open a mine that had been abandoned before his coming into possession ().-The expression "winning" minerals, which is frequently used in mining leases and licences to denote the condition upon which the mine is to be treated as open for profit and for payment of royalty, is construed to mean that the mine is put in a state capable of continuous working in the ordinary way, after completing the preliminary works necessary for reaching the mineral, draining the mine and making it practically workable (z). (a) Viner v. Vaughan, 2 Beav. 466. (r) L. Blackburn, Campbell v. Wardlaw, L. R. 8 Ap. Ca. 647. (s) Elias v. Snowdon Quarry_Co., L. R. 4 Ap. Ca. 454; 48 L. J. C. 811; Clavering v. Clavering, 2 P. Wms. 388. (t) Ellis v. Bromley Local Board, 45 L. J. C. 763. (u) Cowley v. Wellesley, L. R. 1 Eq. 659; 35 Beav. 635. (x) Bagot v. Bagot, 32 Beav. 509; 33 L. J. C. 116. (y) See Viner v. Vaughan, 2 Beav. 466. (z) Hatherley, L. C. Lewis v. Fothergill, L. R. 5 Ch. 111; Rokeby v. Elliot, L. R. 13 C. D. 277; 7 Ap Ca. 43. Court. under powers Where land is settled and the tenant for life is impeach- Mines opened able of waste, and therefore unable to work minerals, the by order of Court exercises a jurisdiction to order or sanction the opening of mines and working of minerals for the benefit of the property and of all parties interested; in the same manner as with the cutting of timber. In such cases the Court will direct the proceeds to be sold and invested, and the annual income to be paid to the persons coming into possession in succession under the settlement, including the tenant for life. And the fund will ultimately vest absolutely in the first person who becomes entitled under the settlement to an estate unimpeachable of waste, whether for life or in fee, which would entitle him to take the minerals for his own use (a). The same principle applies By trustees presumptively to the proceeds of leases of minerals granted of leasing. by the trustees of settled land under powers of making mining leases. "As between a tenant for life and remainderman, money paid by a lessee as the price of land won and carried away and sold by the lessee in the shape of minerals, stones or bricks, is always treated as capital and not as income, unless the settlor has expressed an intention to the contrary by making the tenant for life unimpeachable for waste, or by some other expression; or unless at the time of the settlement the mines let were open, in which case an intention to the contrary is inferred, if consistent with the language of the settlement” (b). Where land with "the mines and minerals" was settled, and power was given to the trustees to lease the minerals, it was held that the intention was shown that the mines and minerals should be part of the profits, and that the rents and royalties reserved were payable to the tenant for life, and did not form capital (c). Under a settlement which vested the settled land in trustees, upon trust to pay (a) Ante, p. 40; Bagot v. Bagot, 32 Beav. 509; 33 L. J. C. 116. (b) Per cur. Re Ridge, Hellard v. Moody, L. R. 31 C. D. 508; 55 L. J. C. 265; Campbell v. Ward- (c) Daly v. Beckett, 24 Beav. 114. Mining lease under Settled Land Act. Minerals in copyholds. "the whole annual produce and rents" to a tenant for life, it was held that there was no intention shown to include the rents of mines leased by the trustees subsequently to the settlement under statutory powers, which must therefore be treated as capital of which the tenant for life could only claim the interest (d). Under the Settled Land Act, 1882, s. 6, a tenant for life of settled land, within the definitions of the Act, may grant a mining lease for a term not exceeding sixty years; and by sect. 2 a "mining lease" includes "a grant or licence for any mining purposes.' ." By sect. 7 the lease must reserve the best rent that can reasonably be obtained ; and by sect. 9 the rent may be made ascertainable according to the acreage worked or according to the quantities of any mineral gotten. By sect. 11, "Under a mining lease, whether the mines or minerals leased are already opened or in work or not, unless a contrary intention is expressed in the settlement, there shall be from time to time set aside, as capital money arising under this Act, part of the rent as follows, namely, where the tenant for life is impeachable for waste in respect of minerals, threefourth parts of the rent, and otherwise one-fourth part thereof, and in every such case the residue shall go as rents and profits."-A tenant for life of the proceeds to arise from the sale of settled land under a trust for conversion in the settlement, was held to be in the position, in relation to the land before sale, of a tenant "impeachable for waste in respect of minerals," within this section, and therefore entitled to take only one-fourth of the rent of a newlyopened mine as current rents and profits (e). By the general custom of copyhold tenure the lord of the manor retains the minerals, not by a partition of the tenement, but as freeholder of the whole tenement, including (d) Campbell v. Wardlaw, L. R. 8 Ap. Ca. 641. (e) Re Ridge, L. R. 31 C. D. 508; 55 L. J. C. 265. the minerals, the copyhold tenant having the possession only. But the possession of the copyholder extends over the whole tenement and all that it contains above and below the surface, including the minerals. The estate of the copyholder, as tenant at will secured by the custom, does not entitle him to commit waste by taking minerals, or any part of the soil itself. On the other hand, the lord, without a special custom, has no right of entering upon the possession of the tenant to take the minerals or any part of the soil, although the freehold title remains in him (ƒ).—Accordingly, stones lying upon the surface of a copyhold tenement presumptively belong to the lord; and the copyholder, though entitled to the possession, is not entitled to appropriate and dispose of them to his own profit (g).—If the lord wrongfully enter and take any part of the soil or minerals, the copyholder in fee who has the absolute title to the possession and to prevent their removal, becomes entitled to recover the full value of the soil or minerals taken, less the cost and fair profit of the working (4). customs. By special custom of a manor the copyhold tenants may Special have the right, absolute or qualified, of getting and taking away for their own property the minerals under their respective tenements; as they may have by special custom the right of cutting the timber growing upon their tenements. The custom may extend to certain kinds of minerals only, as coal, sand, clay, gravel, brick-earth, or any other mineral (i). So by special custom of a manor the lord may have the right of entering upon the possession (f) Lewis v. Braithwaite, 2 B. & Ad. 437; Keyse v. Powell, 2 E. & B. 132; Bowser v. Maclean, 2 D. F. & J. 420; 30 L. J. C. 273; Jessel, M. R. Eardley v. Granville, L. R. 3 C. D. 832; 45 L. J. C. 672. (g) Dearden v. Evans, 5 M. & W. 11. See Tucker v. Linger, L. R. 21 C. D. 18; 51 L. J. C. 713, cited post, p. 68. (h) Att.-Gen. v. Tomline, L. R. 5 C. D. 750; 46 L. J. C. 654. (i) Salisbury v. Gladstone, 9 H. L. C. 692; 34 L. J. C. P. 222; Hanmer v. Chance, 4 D. J. & S. 626; 34 L. J. C. 413; Portland v. Hill, L. R. 2 Eq. 765; 35 L. J. C. 439; Att.-Gen. v. Mylchreest, L. R. 4 Ap. Ca. 307. Minerals in freeholds of manor. Minerals in waste. Inclosure of waste. of the tenant to work the minerals (k). The custom may be for the lord to take one kind of mineral and the tenants another (1). The onus of proving the special custom lies upon the party claiming the benefit of it (m). As between the lord and the freeholders of a manor the property in the minerals depends upon the terms of the grant. Where the original grant does not appear, as is generally the case, the presumption is that the minerals form part of the freehold and pass with the freehold tenement. But they may have been separated and reserved to the lord; and a partition of this kind throughout a manor may be proved by evidence of the practice of the lord to work minerals from time to time under land of freeholders within the boundaries of the manor (n). The minerals in the uninclosed wastes of the manor, which are not in the occupation of tenants, belong to the lord in immediate possession; and he may therefore work them in right of his ownership of the soil, subject to rights of common or other customary or acquired rights of tenants of the manor over the surface, if any such rights can be proved to exist. The lord has the right to every use and profit to be derived from the wastes, the taking of which is not inconsistent with the rights of commoners or others; and the burden of proof lies upon those who complain that in exercising his rights of ownership, he interferes with their rights (0).-Upon inclosure of wastes under Inclosure Acts, it is a frequent practice to sever the minerals from the surface rights, by reserving them to the lord, and allotting the surface in separate freehold tenements (p). Under such inclosures the reservation to the lord is in general to be construed with reference to his former abso (k) Eardley v. Granville, L. R. 3 (1) Curtis v. Daniel, 10 East, 273. (0) Hall v. Byron, L. R. 4 C. D. 667 46 L. J. C. 297. (p) Pretty v. Solly, 26 Beav. 606; Duke of Buccleuch v. Wakefield, L. R. 4 H. L. 377; 39 L. J. C. 441. |