lute title to the soil and to everything constituting the soil; it is therefore held to include every part of the soil that can be worked consistently with the surface rights of the allottees (q). And where an Inclosure Act reserved all mines and minerals to the lord as fully as before the Act, with a special provision for restoring the surface after getting the minerals, it was held to reserve building stone got by quarrying from the surface (r). ways. With respect to minerals lying under or near railways, Minerals it is provided by the Railways Clauses Act, 8 Vict. c. 20, under rails. 77, that the railway company shall not be entitled to any mines or minerals under any land purchased by them, except only such parts thereof as shall be necessary to be carried away or used in the construction of the works; unless the same shall have been expressly purchased and conveyed. By s. 78 if the owner, lessee, or occupier of any mines or minerals lying under or near the railway be desirous of working the same, he shall give to the company notice in writing of his intention to do so thirty days before the commencement of working, and if the company be willing to make compensation, he shall not work or get the same (s). By s. 79 if the company be not willing to treat for the payment of such compensation, the owner may work the mines in the proper and usual manner in the district. And in the latter event he will not be liable for any damage done to the railway from the proper working of the mines according to the Act (t). Under these sections the vendor of the land purchased by the railway company retains only the right to get the minerals, (1) Rosse v. Wainman, 14 M. & W. 859; Hext v. Gill, L. R. 7 Ch. 699; 41 L. J. C. 763. (r) Rosse v. Wainman, supra. (8) Midland Ry. v. Robinson, L. R. 37 C. D. 386; 57 L. J. C. 441. (t) Great Western Ry. v. Bennett, L. R. 2 H. L. 27; 36 L. J. Q. B. L. 133; Dixon v. Caledonian Ry., L. R. F Surface minerals. Severance of access to minerals. Superfluous land. without any estate or interest in the land itself containing them; the space occupied by the minerals belongs to the company (u).-The mines and minerals reserved by the above Act to the vendor of the land includes surface minerals that may be got by open workings as well as the minerals got by underground working; the section 77 excepting only such parts thereof as are necessary to be dug and carried away in the construction of the works. Consequently the vendor may proceed to work a bed of brick, fire-clay, slate or stone upon which the railway is made, unless the company are willing to make compensation for it (x).-Sect. 80 enables the owner of minerals, to which the access is cut off by a railway company having purchased the minerals lying under their line, to work the minerals by tunnelling under the railway. And sect. 81 provides that the company shall compensate the owner of the minerals for all such additional expenses and losses as shall be incurred by him by reason of the severance of the minerals, or of their being worked in such a manner as not to injure the railway, and for any minerals which cannot be obtained by reason of the railway (y). Minerals underlying land purchased by a railway company which are not required for the support of the surface or other purposes of the railway, are not within the description of "superfluous land" in the Lands Clauses Act, 8 & 9 Vict. c. 18, s. 127, which requires the company to sell all such superfluous land within ten years of the completion of the works, and in default of sale vests such land in the owners of the lands adjoining thereto. The superfluous land intended by the Act is such portion of the land purchased as is superfluous, having regard to the (u) Jessel, M. R. Re Metrop. Distr. (x) Midland Ry. v. Haunchwood Glasgow v. Farie, Weekly Notes, 1888, p. 192. (y) Whitehouse v. Wolverhampton Ry. L. R. 5 Ex. 6; 39 L. J. Ex. 1; Midland Ry. v. Miles, L. R. 30 C. D. 634; 55 L. J. C. 251, 745; Midland Ry. v. Miles, L. R. 33 C. D. 632; 55 L. J. C. 745. use of the surface; it is to be separated by a vertical section of the land, and does not apply to the portion that may be separated by a horizontal section, either below the line of railway as in the case of mines and minerals, or above the line, where it is carried below the surface in a tunnel ().-Land that has been taken compulsorily without the minerals and afterwards sold as superfluous land carries with it no further rights, in regard to the minerals and the mode of working them, than the railway company had; consequently, as the owner of the minerals would not have been liable to the railway company for damage to the surface caused in the usual and proper working of the minerals, so he will not be liable for such damage to a purchaser of the superfluous land from the company (a). of terms: The general term "minerals " includes "every substance Construction which can be got from underneath the surface of the earth minerals"; for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the Court to give it a more limited meaning" (b). Accordingly, a reservation of "minerals" from a grant of land, includes "everything except the mere surface, which is useful for any purpose whatever," as gravel, sand, fireclay or the like; also every species of stone, as marble, limestone, ironstone, freestone (c). Clay used for puddling or for brick making is a mineral within the Railways Clauses Act, 1845, s. 77, which reserves the minerals to the vendor, upon a purchase of land by a railway company under their compulsory powers (d). China clay under a (2) Re Metrop. Distr. Ry. v. Cosh, L. R. 13 C. D. 607; 49 L. J. C. 277. See Cairns, L. C. Hooper v. Bourne, L. R. 5 Ap. Ca. 1; 49 L. J. Q. B. 370; Rosenberg v. Cook, 51 L. J. Q. B. 170. (a) Pountney v. Clayton, L. R. 11 Q. B. D. 820; 52 L. J. C. 566. (6) Mellish, L. J. Hext v. Gill, L. R. 7 Ch. 712; 41 L. J. C. 763; Fry, J. A.-G. v. Tomline, L. R. 5 C. D. 762; 46 L. J. C. 654. (c) Romilly, M. R. Midland Ry. v. Checkley, L. R. 4 Eq. 25; 36 L. J. C. 380; Bell v. Wilson, L. R. 1 Ch. 303; 35 L. J. C. 337; Rosse v. Wainman, 14 M. & W. 859; 2 Ex. 800; Micklethwait v. Winter, 6 Ex. 644; 20 L. J. Ex. 313. (d) Loosemore v. Tiverton Ry., L. R. 22 C. D. 25; 51 L. J. C. 570: Midland Ry. Co. v. Haunchwood Brick Co., L. R. 20 C. D. 552; 51 L. J. C. 778. "mines" and "quarries." copyhold tenement is included in the minerals to which the lord of the manor is entitled; his claim extending to minerals in the most general sense of the word. "There is nothing to be got out of the soil and sold for a profit which the copyhold tenant, in the absence of some special custom, is entitled to get without the permission of the lord; the property of it is in the lord, although, in the absence of special custom, the lord cannot get it without the licence of the tenant" (e). So, beds of coprolites belong to the lord (ƒ). Flints turned up in ploughing are minerals which prima facie belong to the landlord; but by local agricultural custom the tenant may be entitled to pick them off the land and sell them (g). The term "mine" is used in the primary meaning for an underground working without removing the surface, in distinction to an open working or "quarry;" the meaning being determined by the context and the circumstances in which the term is used (). It is also used for the stratum or vein of mineral worked. By a grant of "mines" or "mines of lead," the soil itself primâ facie passes, and not merely the right of digging in the soil and taking minerals (). A grant of "coals" or "coal mines" carries with it the strata of coal, but not the intermediate strata of different minerals; except that the grantee may remove so much of the adjacent strata as is necessary for working the strata granted, and he may dispose of the material so removed for his own use and profit. So, the spoil banks made in the proper working of a mine become appurtenants of the mine and pass with it, as also the shafts of the mine (k). A lease of "workable coal seams (e) Hext v. Gill, L. R. 7 Ch. 712; 41 L. J. C. 763. (ƒ) A.G. v. Tomline, L. R. 5 C. D. 750; 46 L. J. C. 654. (g) Tucker v. Linger, L. R. 21 C. D. 18; 51 L. J. Č. 713. (h) Turner, L. J. Bell v. Wilson, L. R. 1 Ch. 308; 35 L. J. C. 340; Kindersley, V.-C. Cleveland v. Mey rick, 37 L. J. C. 128; Jones v. Cumorthen Slate Co., L. R. 4 Ex. D. 97; 5 ib. 93; 49 L. J. Ex. 110. (i) Co. Lit. 6 a; Shepp. Touchst. 96. (k) Ramsay v. Blair, L. R. 1 Ap. Ca. 704; Robinson v. Milne, 53 L. J. C. 1074. was construed to mean such coal seams as were workable at a profit, and therefore to include such seams of coal as containing ironstone would produce a profit by being worked together with the ironstone (1). minerals. The words "mines and minerals" as commonly used Mines and in combination in a grant or reservation, are not to be construed as restricting the meaning to such materials only as can be got by the process of mining strictly so called; they primâ facie include minerals in the general meaning of the term, together with the right of working them in the manner proper to each kind (m). A reservation in a Canal Act to the landowners of "all mines and minerals within or under the land" was construed to include every species of mineral within the land whether got by underground or by surface working (n). But a grant of land with a reservation of "mines and minerals within and under the land" was construed strictly as referring to underground workings only, and not permitting the quarrying of freestone from the surface (o). A partition of land, excepting the "mines and minerals" and providing that they should continue to be held in common, was construed as excepting from partition only such minerals as could be got by mining in the sense of underground working; and that the surface minerals got by quarrying, such as limestone, passed in severalty under the partition; otherwise there would remain nothing unexcepted for the partition to operate upon (p). A building lease excepting the minerals, and containing express conditions for building, impliedly carries with it the right to dig and remove so much of the surface minerals as is necessary to make the foundations of the buildings, and the lessee may dispose of the material so removed; but it gives no right (1) Carr v. Benson, L. R. 3 Ch. 524. (m) Mellish, L. J. Hext v. Gill, L. R. 7 Ch. 712; 41 L. J. C. 761. (n) Midland Ry. v. Checkley, L. R. 4 Eq. 25; 36 L. J. C. 380. (0) Bell v. Wilson, L. R. 1 Ch. 303; 35 L. J. C. 337. (p) Darvill v. Roper, 3 Drew. 294; 24 L. J. C. 779. |