66

(9) The passage in the text requires a little qualification. The result of experience in the mining countries is not uniform. In Curtis v. Daniel, 10 East, 274, Bayley, J., held, that although the presumption of law, generally speaking, is that all mines under freehold belong to the freeholder, in Cornwall it might be otherwise as to tin mines, which are governed by peculiar laws and customs." On a motion for a new trial, Lord Ellenborough, C. J., asked, "Why may there not be two customs, one for the lord of the manor to have the tin, and another for the tenants to have the copper under their estates?" And it is perfectly well established, that, all mines of gold and silver within the realm, though in the lands of subjects, belong to the Crown by prerogative, with liberty to dig and carry away the ores thereof, and with all other such incidents thereto as are necessary to be used for getting the ore. (The Queen and The Earl of Northumberland, in the case of Mines, Plowd. 336.) However, as in this country no mines have been discovered which, properly speaking, can be described as gold and silver mines, this prerogative is not very valuable. A slight intermixture of gold or silver will not constitute a royal mine, where the bulk of the ore is of baser metal. A majority of the judges did, indeed, in the case cited, hold a different opinion; but as this rule would have operated as a great discouragemeut to any subject to open any mine whatsoever, it

was enacted by 1 Gul. & Mary, sess. 1. c. 30, s. 4, that no mine of copper, tin, iron, or lead, should be adjudged to be a royal mine, although gold or silver might be extracted out of the same. The act was explained, and a right of preemption secured to the Crown, by 5 & 6 Gul. & Mary, c. 6. The rate of purchase at which that right might be exercised, was altered by 55 Geo. III, c. 134. (See Vol. I. p. 294.) From the same case in Plowden it may also be collected, that, if in a grant of an estate by the Crown there be a bare reservation of royal mines, without any proviso for right of entry, (which would be essential in the case of a private individual,) it is competent to the Crown to grant a license to any person to come upon the estate so granted, and dig up the soil in search of such mines. Lord Hardwicke, it is true, (in Lyddal v. Weston, 2 Atk. 20,) held a contrary doctrine; but Lord Eldon (in Seaman v. Vawdrey, 16 Ves. 393), repudiated Lord Hardwicke's attempt to unsettle what had been resolved by the twelve Judges, in the case in Plowden.

The freehold of customary lands, and lands held by copy of court roll, is in the lord of the manor. In such lands, unless the act be authorized by special custom, (Whitchurch v. Holworthy, 19 Ves. 214; S. C. 4 Mau. & Sel. 340,) it is neither lawful for the customary tenant, or copyholder, to dig and open new mines, without the license of the lord of the manor; nor for the lord, without the consent of

the word "land" includes not but every thing under it, or

the tenant, to open new mines under the lands occupied by such tenant. (Bishop of Winchester v. Knight, 1 P. Wms. 408. And see, as to the latter point, the opinion of two Judges against one, in the Lord of Rutland v. Greene, 1 Keble, 557, and infra.) The acts which a lord of a manor may do by custom, to enable him profitably to work mines, previously opened, under lands which are parcel of his manor, must not be unreasonably oppressive upon the occupier of the lands, or the custom cannot be maintained. (Wilkes v. Broadbent, 1 Wils. 64.) And the lord of a manor cannot open new mines upon copyhold lands within the manor, without a special custom or reservation; for the effect might be a disinherison of the whole estate of the copyholder. The lord of a manor may be in the same situation with respect to mines as with respect to trees: that is, the property may be in him, but it does not follow that he can enter and take it. The lord must exercise a privilege over the copyholder's estate, if during the continuance of the copyhold he works mines under it; and a custom or reservation should be shown to authorize such a privilege: but as soon as the copyhold is at an end, the surface will be the lord's as well as the minerals, and he will have to work upon nothing but his own property. (Grey v. The Duke of Northumberland, 13 Ves. 237; 17 Ves. 282; and S. P., at law, under the title of Bourne v. Taylor, 10 East, 205, where all the leading cases on the subject are discussed.) The right to mines may be distinct from the right to the soil. In cases of copyholds, a lord may have a right under the soil of the copyholder; but where the soil is in the lord, all is resolvable into the ownership of the soil, and a grant of the soil

VOL. II.

only the face of the earth, over it. And therefore if a

will pass every thing under it. (Townley v. Gibson, 2 T. R. 705.)

It seems, then, that royal mines, if any such exist in this country, do not belong to the owner of the surface : that with respect to other minerals, even under freehold land, "every day's experience in the mining countries" is not uniform: and that as to mines under customary or copyhold lands, neither the lord of the manor, who has the freehold, nor the tenant who has the enjoyment of the surface, can open fresh mines, without a special custom or express compact. The lord of the manor has, indeed, in a certain sense, the property in such mines; but if the estate of the customary or copyhold tenant of the surface be an estate of inheritance, the lord may never be able to make his qualified property in the mines available, except by purchasing the right to work them. This may, perhaps, serve to explain the dictum in Lord Cullen's case, (2 Str. 1142,) that "mines are a distinct possession, and may be different inheritances."

If the owner of a fee grants, by indenture, liberty to dig for minerals throughout certain lands therein described, and to raise and dispose of the same for the grantees own use, and to make adits necessary for the exercise of. that liberty, habendum for twenty-one years: this deed operates as a license only, and not as a demise of the metals and minerals, so as to vest in the lessee a legal estate therein during the term. By such a deed, the grantor does not part with all the ores then existing within the land, but such parts thereof only as should, under the power given to search and get, be found within the described limits, which is nothing more than a license to search or get, with a grant of such of the ore only as should be found and got, the grantor parting with no estate or in

D

"

terest in the rest. The grantee, therefore, has no estate or property in the land itself, or in any part of the minerals ungot therein: he has a right of property only as to such part thereof, as upon the liberties granted to him should be dug and got. This is no more than a right to a mere personal chattel, being very different from a grant or demise of the mines, or minerals, in the land. (Doe v. Wood, 2 Barn. & Ald. 736.) In the case just cited, it was held, that, under the circumstances stated in that case, the grantee could not maintain an action of ejectment.

(9) The different rights of free fishery, several fishery, and common of piscary, are enlarged upon, post, in the 7th section of the next chapter, pp. 39, 40, and the notes thereto. It will there be seen, that, however indisputable it may be, that, by a grant of waters, nothing passes but a right of fishing therein; it is not equally well settled, whether, by grant of a several piscary, the soil does, or does not pass. Lord Coke observes, (1 Inst. 5 b,) “by grant of a vivarye, not only the privilege, but the land itself passes." And, in his note on the 11th chapter of the statute of Merton, (2 Inst. 100,) he says, "Vivarium is a word of large extent. Most commonly in law it signifieth parks, warrens, and pischaries or fishings; here it is taken for warrens and fishings." Probably, the term vivarye is most correctly applied to places in which animals that have been deprived of the full liberty

of their natural state are preserved; and, where fishes are the subjects, a vivarye may only mean an inclosed fish-pond, or stew, not an open stream.

(10) By the name of a castle, one or more manors may be conveyed; and e converso, by the name of a manor, a castle may pass. 1 Inst. 5; 2 Inst. 31.

CH. ["Land may be parcel of a castle; castle, honour, and the like, are things compound, and may comprise messuages, lands, meadows, woods, and such like." (Hill v. Grange, 1 Plowd. 168, 170.)—ED.]

Patrick v.

(11) A messuage, in intendment of law, prima facie comprehends land, and it will be presumed that a curtilage, at least, belongs thereto. (Scholes v. Hargreaves, 5 T. R. 48; Hockley v. Lamb, 1 L. Raym. 726; Scamler v. Johnson, T. Jones, 227; Lowre, 2 Brownl. 101; it should be observed, however, that North v. Coe, Vaugh. 253, is contra.) As to the definition of the word "curtilage," see Mr. Ryland's note to Vol. IV. p. 226. Rights of common, and even of several pasturage, may be appurtenant to a messuage; (Potter v. Sir Henry North, 1 Ventr. 390 ;) or to a cottage; (Emerton v. Selby, 1 L. Raym. 1015;) and where common is appurtenant, in right, to a tenement, it goes with the inheritance. (1 Bulst. 18.) So a garden may be said to be parcel of a house, and by that name will pass in a conveyance. (Smith v. Martin, 2 Saund. 401 a; S. C. 3 Keb. 44.) It has also been held, that land may pass as per

taining to a house, if it hath been occupied therewith for ten or twelve years, for by that time it has gained the name of parcel or belonging, and shall pass with the house in a will or lease. (Higham v. Baker, Cro. Eliz. 16; Wilson v. Armourer, T. Raym. 207; Loftes v. Barker, Palm. 376.) And by the demise of a messuage, a garden and the curtilage will pass, without saying cum pertinentiis. (Carden v. Tuck, Cro. Eliz. 89.) For this purpose the word messuage seems formerly to have been thought more efficacious than the word house. (Thomas v. Lane, 2 Cha. Ca. 27; S. P. Keilway, 57.) But the subtilty of such a distinction has been since disapproved. (Doe v. Collins, 2 T. R. 502.) And when a man departs with a messuage cum pertinentiis, even by feoffment, or other common law conveyance, not only the buildings, but the curtilage and garden (if any there be) will pass. (Bettisworth's case, 2 Rep. 32; Hill v. Grange, 1 Plowd. 170 a; S. C. Dyer, 130 b.) A fortiori, in a will, although lands will not pass under the word appurtenances, taken in its strict technical sense; they will pass if it appear that a larger sense was intended to be given to it. (Buck v. Nurton, 1 Bos. & Pull. 57; Ongley v. Chambers, 1 Bing. 498; 9 Moo. 687; Press v. Parker, 2 Bing. 462; 10 Moo. 169.)

(12)" When land is built upon, the space occupied by the building changes its name into that of a messuage. If the building afterwards falls to decay, yet it shall not have the name of land, although there be nothing in substance left but the land, but it shall be called a toft, which is a name superior to land and inferior to messuage." (Hill

v. Grange, 1 Plowd. 170.)

(13) Croft, is a small inclosure near to the homestead.

(14) So long as fines and recoveries were looked upon strictly as adversary suits, it was held that a reputed manor, which was not a manor in truth, would not pass by the name of a manor in a fine or common recovery, though it might in a conveyance, where the intent of the parties would help the inaccuracy of description. (Mallet v. Mallet, Cro. Eliz. 524.) But when fines and common recoveries came to be looked upon as common assurances only, they were deemed to pass, under the word manor, not only a reputed manor, but also, where it is a manor indeed, lands not in fact parcel of the manor, but which are so reputed. (Thynne v. Thynne, 1 Lev. 28; Sir Moyle Finch's case, 6 Rep. 67.) Lord Mansfield (in Massey v. Rice, Cowp. 349,) was so fully impressed with a sense of the mischief likely to result from allowing a common recovery to be reversed, upon slight objections to the accuracy of description in the præcipe, that he strongly said, "the consequences of these objections are great; they are void of the least glimmering of common sense; and it would be attended with vast inconveniences to the public in many cases, without a possibility of doing good in any, if in common recoveries, which are a species of conveyance and common assurance, such nice exceptions were to prevail." Since this note was first published, fines and recoveries have been abolished, and more simple modes of assurance substituted, by the statute of 3 & 4 Gul. IV. c. 74.

(1) See ante, in the note to p. 17, Mr. Fearne's definition of incorporeal hereditaments, which is analogous to that given by our author; the closeness of resemblance was to be expected, as both copied from the same original, sketched by Lord Coke.

It is to incorporeal hereditaments alone that prescription, using that word in its strict sense as referring to immemorial usage, properly applies; (see this subject enlarged upon, post, in chap. 17, pp. 263, et seq. and the notes thereto;) but there is another kind of prescription, established by the statute law, which extends equally to corporeal hereditaments, and by virtue of which an uninterrupted possession for a certain number of years will give the possessor a good title, by taking away from all other persons the right of entering on such hereditaments, or of maintaining any action at law, or suit in equity, for them. (See this subject exhausted, in the arguments and judgment in the great case of Cholmondely v. Clinton, 2 Jac. & Walk. 1-206.)

Incorporeal hereditaments may be conveyed either by grant, or by bargain and sale; by covenant to stand seised, or by lease and release, for they

are within the Statute of Uses, (27 Hen. VIII. c. 10,) in construing which, the word hereditaments is to be understood generally, not confining its operation to such as are corporeal. To make such conveyances valid, however, by aid of the statute, the incorporeal hereditaments must be in actual existence at the time, otherwise no use can arise; (Beaudeley v. Brook, Cro. Jac. 189;) and where the conveyance is by grant, the grant only operates on the estate and interest of the grantor, and will pass no more than he is by law enabled to convey. Consequently, if a tenant in tail of a rent service, or a reversion or remainder in tail, grants the same in fee, and dies, this is no discontinuance (see Vol. III. pp. 171, 172.) to the issue in tail. On the same principle, a grant cannot occasion a forfeiture; thus, if a tenant for life or years of an advowson, rent, common, reversion or remainder of land, or other incorporeal hereditament, grants the same in fee, this is no forfeiture; because nothing passes but that which lawfully may pass. (1 Inst. 251 b. 327 b.)

A particular estate, however, in any incorporeal hereditament, may be for