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Extent of its

tion.

fructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other.

Land hath also, in its legal signification, an indefinite legal significa- extent, upwards as well as downwards. Cujus est solum, ejus est usque ad cælum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land: and downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries (8). So that

(8) 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). From the same case 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 licence 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 licence of the lord

the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore if a [*19]

of the manor; nor for the lord, without the consent of 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 shewn 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 will pass every thing under it. (Townley v. Gibson, 2 T. R. 705).

It seems, then, that royal mines 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 their own use, and to make adits necessary for the exercise of that liberty, habendum for twenty-one years:

man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are *equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing (g) (9): but the capital distinction is this, that by the name of a castle †,

(g) Co. Litt. 4.

this deed operates as a licence 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 with in 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 licence to search and get, with a grant of such of the ore only as should be found and got, the grantor parting with no estate or interest 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, 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.

† 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.Cн. "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.

messuage (10), toft (11), croft (12), or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of (13);

but by the name of land, What passes by

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 Bingh. 498.
Press v. Parker, 2
Bingh. 462).

(10) A messuage, in intendment of law, primá 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. Patrick v. Lowre, 2 Brownl. 101; it should be observed, however, that North v. Coe, Vaugh. 253, is contra). 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 pertaining 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. to the homestead. Raym. 207. Loftes v. Barker, Palm. 376). And by the devise 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.

(11) "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).

(12) Croft, is a small inclosure near

(13) 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 since fines and common recoveries have been

it.

which is nomen generalissimum, every thing terrestrial will pass (h).

(h) Co. Litt. 4, 5, 6.

looked upon as common assurances only, they will 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."

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