fairly to demand the expenditure and risk ofa prudent owner, he will be answerable for the neglect, for he is bound to make the most reasonable use of the estate, and to satisfy his own claims with due diligence, and the nature of the estate should have been contemplated at the time of mortgage, or of taking possession.

On the other hand, it may be concluded, that if a mortgagee in possession exceed the expenditure and risk demanded from a prudent owner, he will be equally accountable for the consequences. He will not be allowed the expences of an unnecessary or extravagant enterprise, or, it is presumed, of pursuing an enterprise in a useless or chimerical manner, but in both instances must speculate at his own hazard. (a)

But although a mortgagce in possession may be, in some cases, bound to prosecute the working of old mines and quarries, it is submitted that, in the absence of stipulation, he may be prevented from opening new mines. At law, his estate is absolute, and he is therefore subject to no action of waste or trespass; but it has been long decided in equity where the mort gagor is, until foreclosure or sale, considered to be the actual owner of the land, that a mortgagee shall not be permitted to waste the estate. (b)

If the security of a mortgagee prove defective, it has been held that he may cut down timber, and apply the produce to the satisfaction of the interest, and then of the principal, and a court of equity will not restrain him from so doing. (c) A similar principle, it may be inferred, will apply to the mines, viz. that a mortgagee will be permitted to open mines if there is a deficiency in his mortgage security, and then he must speculate at his own risk.

In a case just cited, (d) the mortgagee had opened a slate quarry. It was decided that he did it at his own hazard; but an injunction was not applied for, and therefore the question of right did not arise.

When mines form a distinct inheritance or possession, and are the subjects of limitation and conveyance, the right to work them would seem to be necessarily incident to the right of possession. The ordinary doctrines with respect to waste appear quite inapplicable to such cases. The mines are then the express subjects of conveyance, and this circumstance would supply the absence of express stipulation. Any person, therefore, in possession under such circumstances, would appear to have an unlimited right to work mines, both opened and unopened, at his own pleasure, if not otherwise prevented. The privilege to commit waste may of course be conferred by any expressions which may sufficiently show the intention of the parties.

(a) Hughes v. Williams, 12 Ves. 493.
(c) Witherington v. Bankes, Sel. Ca. Ch. 31.

(b) Hanson v. Derby, 2 Vern. 392.
(d) Hughes v. Williams, Supra.

CHAPTER III.

ON THE TRANSFER OF MINES.

I. On the Statute of Frauds.

II. Transfer by deed.

III. By will.

IV. By operation of law.

V. Transfers of shares in mines.

SECTION I.

ON THE STATUTE OF FRAUDS.

THERE can be no doubt that mines and minerals, whether forming a distinct possession or inheritance or not, are within the provisions of this statute. In either case, they form part of the land itself.

In a case in Ireland, the Chief Justice of the Court of King's Bench observed, that the mining company were engaged in a partnership in interests in lands, tenements, and hereditaments. The nature of mining implied at least a right to open the ground, and keep it open, and such right to the land for a limited time and purpose as induced the court, in Crosby v. Wadswords, (a) to hold a contract for the sale of a growing crop to be within the statute. But the evidence given upon the trial, by the secretary of the company put that part of the case out of doubt. He stated, that the company had many mines at work in different parts of Ireland; that they had purchased some and rented others; and that they had erected steam engines, and smelting houses, and built workmen's houses. Now, the shares of this company were transferable, and what did a purchaser of one of them acquire, and what would he be entitled to on the dissolution of the company? Why, a share of those houses and interests in land which the company had acquired. (b)

The following statement of the construction of four sections of the Statute of Frauds as applicable to mines and minerals, seems to be all that is necessary on a branch of the law so familiar.

1. The first section then, requires the creation of any lease, estate, or interest in mines to be in writing, and to be signed by the parties creating it, or their agents thereunto lawfully authorised by writing.

It must particularly be observed, that the authority of an agent to create any lease or interest must be in writing from the principal. The authority may, of course, be either general or special, under a general power of

(a) Infra.

(b) Boyce v. Green, Batty, 608,

attorney, or for a special purpose. In practice, however, a general deputation of authority is not usually resorted to. It would confer too great authority upon agents to invest them with the power of creating any interest whatever in the mines which may lawfully pass from the grantor, and upon any terms they may think proper. Special powers are, of course not liable to the same objection, and are adopted in cases when, as in other transac tions, the signature of the grantor cannot be conveniently obtained at the proper time and place.

2. The exception contained in the second section cannot be said to have any practical reference to mines; for though the duration of interest might be made to correspond with the requisitions of the exception, it can never happen that lessees would agree to give two-third parts of the full improved value of the thing demised. The profits of mines in general are too valua ble ever to admit of any reservation to that amount. The usual render with respect to all minerals is of very much less amount; and after great expenditure of capital, time, and labour, a rent of two-thirds of the profit of a mine in its most prosperous condition would form a most disproportionate deduction from the returns of an adventure which, in almost all cases, is uncertain in its results. Even in the demise of quarries and open workings, the labour of getting and disposing of the stone or mineral must always be too great to justify so large an amount of rent.

3. It has been already observed, that the operation of the third section extends to all cases within the meaning of both the first and second. All leases and other interests, therefore, in mines and minerals, whether originally created by writing, or subsisting by parol under the second section, must be assigned and surrendered in writing, by the party himself, or by an agent lawfully authorised by him in writing, as in the first section.

But the assignment or surrender need not be by deed. A note or any writing to that effect so signed by the party or his agent will be sufficient, (a) but it must be stamped.

4. The fourth section, so far as relates to our present purpose, is confined to any contract or sale of lands, or any interest in or concerning them. For it is quite clear that the words in the remaining part of the section " or upon any agreement not to be performed within a year," does not extend to an agreement concerning lands. (b) And it is equally clear that this section contemplates in its operation not only the origin of a contract, but also all transfers of subsisting interests. (c)

But this section differs materially from the preceding ones in not requiring the authority of an agent to be in writing. It follows, therefore, that though no agent can pass a legal interest under the first and third sections, unless

(a) Farmer v. Rogers, 2 Wils, 26.

(b) Hollis v. Edwards, 1 Vern, 159, Bracebridge v. Heald, 1 Barn, & Ald. 722.

(c) Anon. 1 Ventr. 361. Poultney v. Holmes, 1 Str. 405.

their authority, however lawful, be evidenced by writing, yet, under the fourth section, they may, if otherwise lawfully authorised, bind their principal by creating or transferring in writing an equitable interest in fieri without being authorised by writing. The extent and nature of this authority will be noticed presently.

A license to work mines is very distinguishable from a lease of mines. The former is an incorporeal hereditament, a mere right, which, in some instances may be revocable, in others, not exclusive of the similar rights of others, and, in all cases, only confers a right of property in the minerals when they have been severed from the freehold, and taken into the possession of the party. A lease, on the other hand, is a distinct conveyance of an actual interest in the thing demised, the right to which attaches even before the substance is extracted or taken. The difference in the creation and properties of a license and a lease will be discussed in the next chapter.

A license or liberty to work mines is very usual in mining countries. When an adventure is entered upon, a regular lease is not always obtained, till the prospects of the enterprise promise such results as may require a more particular arrangement; and the mine is, in these cases, often worked under a license. It becomes, therefore, very important to ascertain whether such a license be within the Statute of Frauds.

It is submitted, that licenses of this description are directly within the meaning of the statute, and that this opinion rests upon reasons very different from those applicable to some of the cases which have been decided upon the subject of licenses generally.

It has, certainly, been held that a mere license is, in some instances, not within the first, and by implication, the fourth sections of the statute.

A parol agreement was entered into for liberty to stack coals on part of a close for seven years, and, during this term, the person to whom it was grant ed should have the sole use of that part of the close upon which he was to have the liberty of stacking coals. Lee, C. J., and Dennison, J., were of opinion, that the agreement was good, and relied upon the authority of Webb and Paternoster, (a) where it was held, that a grant of a license to stack hay upon land, did not amount to a lease of the land. They maintained that the agreement in the present case was only for an easement, and not for an interest in the land-that it did not amount to a lease, and consequently it was not within the Statute of Frauds. Forster, J., said, that the agreement did not amount to a lease, but he inclined to think that the words in the statute, any "uncertain interest in land," extended to the

(a) Palm. 71.

agreement upon which the other judges observed, that these words related only to interests uncertain as to the time of their duration. It was ultimately decided that the agreement was good for the seven years. (a)

Now, with respect to the case of Webb and Paternoster relied upon in the above case, it is sufficient to observe that the decision there was come to upon another point, and that that case arose before the Statute of Frauds. It was even there held that the interest under the license was such as bound the land in the possession of a subsequent lessee. The statute does not apply exclusively to leases and estates in land. It applies to all interests. A right to enter alone is an interest, much more a right to use and occupy to the exclusion of others. The decision, therefore, in Wood v. Lake, was directly against both the spirit and language of the statute.

That decision, however, has been followed in several cases, but the point scems to have been very carelessly discussed. It has been successively held that a parol license to put a sky-light over an arca, a parol agreement for leave to inhabit a house, a parol license to build a house on the waste of a manor, and a parol beneficial license to be exercised upon land, are all valid as not conferring interests in lands. (b)

In the above cases, there was simply a right either to control pro tanto the right of ownership in the lands of another, or to use and occupy the land for a definite purpose, and without any liberty for converting or appropri ating the land for other purposes. But a license to work mines is of a very different description. It confers not only a right to enter and occupy, but to commit waste, and carry away part of the land itself-viz., the minerals. This right may, as we shall afterwards see, be in some instances revocable at the will of the party, but even then it will, of course, exist in full force till revocation. It seems, therefore, impossible to contend that this right is not an interest within the Statute of Frauds. To assert that, it would be necessary to maintain that the minerals are not part of the land.

An interest in land may exist where there is no actual estate in the land. And it has, in other cases, been determined that such an interest is within the meaning of the statute.

Thus, it has been decided that sales of growing poles, of standing underwood, of a crop of mowing grass, are all within the statute. (c) It is true the cases upon this subject are very conflicting, and that the leaning in the later decisions is certainly in favour of bringing the produce of the land not within the first and fourth sections, but the seventeenth section, which en

(a) Wood v. Lake, Say. 3. *

(b) Winter v. Brockwell, 8 East, 308, Rex v. Inhabs. of Standen, 2 Mau. and Sel. 461. Rex v. Inhabs. of Hornden, 4 Mau. and Sel. 562. Tayler v. Waters, 2 Marsh, 551. 7 Taunt. 374. But see Cocker v. Cowper, 1 Cro. Mecs. and Rosc. 418. Fentiman v. Smith, 4 East. 107.

Hewlins v. Shippam, 3 Barn. and C. 233.

(c) Teall v. Anty, 4 Moo. 542. Scorell v. Boxall, 1 You. and Jerv. 396. Crosby v. Wadsworth, 6 East, 602. See Carrington v. Roots, 2 Mees. and Wels. 248.