Royal mines of gold and silver.

to dig or move the surface for the purpose of improving it as a building site, or for the purpose of brick making (7). -In the Railways Clauses Act above referred to, the "mines" excepted out of a conveyance of land to a railway company include minerals of all kinds whether forming part of the surface or lying underground, and carry the right of working in the usual way, whether by mining or by open workings (). In the Settled Land Act, 1882, 45 & 46 Vict. c. 38, s. 2, (10, iv), mines and minerals are defined to mean "mines and minerals whether already opened or in work or not, and include all minerals and substances in, on, or under the land, obtainable by underground or by surface working.” In the Quarry Fencing Act, 1887, 50 & 51 Vict. c. 19, s. 4, "The term 'quarry' includes every pit or opening made for the purpose of getting stone, slate, lime, chalk, clay, gravel, or sand, but not any natural opening."

By the common law "all mines of gold and silver within the realm, whether they be in the lands of the Queen or of subjects, belong to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with other such incidents as are necessary to be used for the getting of the ore." Also if gold or silver be in ores or mines of copper, tin, lead, or other base metal in the soil of subjects, "as well the base metal as the gold and silver in it belongs by prerogative to the Crown; with liberty to dig for it and to carry it away; and in such case it shall be called a mine royal." "And this is the reason that the law doth give to the King mines of gold and silver, thereof to make money" (s). The statutes 1 Will. & M. st. 1, c. 30, and 5 Will. & M. c. 6, amended by 55 Geo. III. c. 134, enacted that no mine of copper,

(q) Robinson v. Milne, 53 L. J. C.

1072.

(r) See ante, p. 66 (x).

(s) Case of Mines, Queen v. Earl Northumberland, Plowden, 336; 2 Co. Inst. 577; Rogers v. Brenton, 10 Q. B. 48.

A

tin, iron, or lead shall be adjudged a royal mine, although gold or silver may be extracted out of the same in any quantities; provided that the King may have the ore of such mines, paying for the same at a rate therein stated. The prerogative of royal mines gives no power to enter into the land of a subject to search for them, or to grant licence to any person to do so; but when they are once opened, the Crown can restrain the owner from working them, and can either work them itself, or grant a licence for others to work them (t). "A mine royal may Grants of by the grant of the King be severed from the Crown, and royal mines. be granted to another, by apt and precise words." grant by the Crown of "land" or of "mines" is construed strictly, as exclusive of royal mines, unless there be precise words to express them. But a grant by the Crown of all mines in certain land will pass royal mines, if there be no other mines of the Crown in the land to which the grant can apply, otherwise the grant would be void of effect (u). "Treasure trove is when any gold or silver, in coin, Treasure plate or bullion, hath been of ancient time hidden, whereof no person can prove any property; wheresoever it be found, it doth belong to the King, or to some lord or other by the King's grant, or prescription." "Whether it be of ancient time hidden in the ground, or in the roof, or walls, or other part of a castle, house, building, ruins, or elsewhere, so as the owner cannot be known." If it be of any other metal than gold or silver, it is no treasure and belongs not to the King (). A chattel, not being treasure, found in the soil, whereof no person can prove any property, primâ facie belongs to the owner of the soil; as an ancient boat found in excavating beneath the surface. And a lease of the land for building with the right of excavating and removing the soil for the foundations of

(t) Hardwicke, L. C. Lyddal v. Weston, 2 Atk. 20.

(u) Case of Mines, Plowden, 336, 337; Woolley v. A.-G. of Victoria,

L. R. 2 Ap. Ca. 163; 46 L. J.
P. C. 18.

(x) 3 Co. Inst. 132; 1 Blackst.
Com. 195.

trove.

Prerogative of saltpetre.

Public rights

custom.

the buildings, was held not to pass the property in such a chattel to the lessee, who found it in the course of excavation: there being no intention in the lease to pass it with the scly'. Chattels, not being treasure, found on the surface or elsewhere than in the soil, whereof no property can be proved, belong prímá facie to the finder in right of his possession ='; except that wreck or chattels cast upon land by the sea, whereof no owner can be found, belong to the Crown by prerogative, or in some cases to the lord of a manor as grantee, express or prescriptive, of the Crown 4.

There is also a prerogative in the Crown to dig and take saltpetre wherever found, to make gunpowder, which is a branch of the general prerogative for the defence of the realm. It differs from the prerogative of gold and silver in not attributing to the Crown any assignable property in the mineral, but only the right of taking it for a definite purpose.

In some districts there are public rights of mining of mining by founded upon custom; as the custom of tin bounding prevailing in Cornwall, and the customs prevailing in the Forest of Dean, and in the district of the Peak in Derbyshire. There customary rights are now for the most part regulated by statutes (c).

(y) Elices v. Brigg Gas Co., L. R. 33 C. D. 562; 55 L. J. C. 734.

(2) Armory v. Delamirie, Strange, 505; 1 Smith's L. C.; Merry v. Green, 7 M. & W. 623.

(a) 2 Co. Inst. 166; post, p. 172. (b) Case of Prerogative of Saltpetre, 12 Co. 13.

(c) See post, p. 563.

CHAPTER VI.

GAME AND WILD ANIMALS.

Property in game and wild animals-trespass in pursuit of game. Game laws-penalties on trespasser-on occupier-game defined— noxious animals-tame animals.

Right to game as separate property-contracts relating to taking
game-Ground Game Act-licence to sport.

Construction of grants and leases as to the game-inclosure awards.
Rating of game as a separate tenement.

Forests-forest law-charter of the forest-chase-park-warren-
grant of manor with warren.

wild animals.

Land carries with it, as an incident of possession, the Property in right of capturing the game and other wild animals found game and upon it; but there is no property in such animals until reduced into possession. "When it is said by writers in the common law, that there is a qualified or special right of property in game, that is, in animals feræ naturæ which are fit for the food of man, the word 'property' can mean no more than the exclusive right to catch and appropriate such animals, which is called by the law a reduction of them into possession. This right is said in law to exist ratione soli or ratione privilegii. Property ratione soli is the common law right which every owner of land has to take all such animals feræ naturæ as may from time to time be found on his land; and as soon as this right is exercised the animal so caught becomes the absolute property of the owner of the soil. Property ratione privilegii is the right which by a peculiar franchise anciently granted by the Crown, by virtue of prerogative, one man may have of taking animals feræ naturæ on the land of another; and in

Trespass in pursuit of game.

like manner the game when taken by virtue of the privilege becomes the absolute property of the owner of the franchise" (a).

If a person find game upon his own land and pursue and take it upon the land of another, it becomes his property, by reason of his original right of capture; the pursuit and capture of the wild animal being considered as one continuous act; but the entry upon the land of another, without his leave, is a trespass, which is not justified by the pursuit of the game (b). If the game be both found and taken by a trespasser upon the land of another person, it becomes the property of the owner of the land, ratione soli,-as if it had been taken by himself or by his authority (c). And so, it seems, if game be found by a trespasser on the land of one person, and taken by him on the land of another person, it becomes the property of the person on whose land it was found, ratione soli (d). Similarly if a trespasser started game in a franchise of forest or warren and pursued and took it beyond the boundaries of the franchise, the privilege followed the game, and it became the property of the owner of the franchise (e). Where a person hunting with hounds in the usual manner over the lands of others found a hare on the land

(a) Westbury, L. C. Blades v. Higgs, 34 L. J. C. P. 288; 11 H. L. C. 621.

(b) Manwood, Forest Law, pp. 387, 392, citing Year Book, 12 H. 8, 10; Kenyon v. Hart, 6 B. & S. 249; 34 L. J. M. 87.

(c) Blades v. Higgs, supra; Lonsdale v. Rigg, 1 H. & N. 923; 26 L. J. Ex. 196.

(d) "If A. start a hare in the ground of B., and hunt and kill it there, the property continues all the while in B.; but if A. start a hare in the ground of B., and hunt it into the ground of C., and kill it there, the property is in A. the hunter: but A. is liable to an action of trespass for hunting in the grounds as well of B. as of C." Holt, C. J. Sutton v. Moody, 1 L.

Raym. 250; adopted in 2 Blackst. 419. But as to the second of the above propositions "it would appear to be more in accordance with principle to hold, that if the trespasser deprived the owner of the land where the game was started of his right to claim the property, by unlawfully killing it on the land of another to which he had driven it, he converted it into a subject of property for that owner and not for himself; the first proposition with respect to game started and killed on the land of the same owner is free from all difficulty." L. Chelmsford, Blades v. Higgs, supra.

(e) Holt, C. J. Sutton v. Moody, 1 L. Raym. 250; L. Westbury, L. C. Blades v. Higgs, supra.