occupation (e). The same right may exist with respect to minerals; and a copyholder, though not entitled generally to any description of minerals, may, by custom, acquire a right to take and use any material, as limestone, marl, clay, and gravel, for the same purposes (f). For if custom can give a copyhold tenant a general right to minerals, it may also give him a limited ownership over them. Indeed, it appears probable, that such a privilege would exist of common right, and without reference to custom (g).

The same law applies to all lands in which the freehold is vested in the lord, in whatever manner the tenant's interest may be passed, as, for instance, lands of the tenure of customary freehold. For an owner may have a freehold estate, but still the freehold tenure may remain in the lord (h).

In the recent acts for the enfranchisement of copyhold and customary lands, provision is made for the rights to mines (i). By the last compulsory statute, it is declared that no enfranchisement shall affect the mineral rights of the lords of manors or any tenants without their express consent in writing.

SECTION III.

IN COMMON AND INCLOSED LANDS.

By presumption of law, the lord of the manor is entitled to the exclusive property in the soil of all common and waste lands of the manor, and consequently to all mines and minerals therein, for the tenants have no other interest than to take the herbage by the mouths of their cattle (k).

(e) Heydon v. Smith, 13 Co. 68; 2 Brownl. 319; Godb. 173; Ashmead v. Ranger, 1 Lord Raym. 551; 3 Salk. 638.

(ƒ) Gilb. Ten. 327.

(g) See Heydon v. Smith, supra.

(h) Doe d, Reay v. Huntington, 4 East, 271; Brown v. Rawlins, 7 East, 409.

(i) 4 & 5 Vict. c. 35, ss. 39, 82, 84, and 15 & 16 Vict. c. 51, s. 48.

(k) Bolton v. Lowther, 2 Dick.

This interest of the lord, as in copyholds, is not conferred by custom. It is a right reserved to him out of his original grant, and is only proved by custom (1). This right, therefore, remains valid till it is impeached by evidence which may show a different ownership, either in the commoners or in strangers.

It has been decided that a prescription by copyholders to have the sole right of pasture upon a common, in exclusion of the lord, may be established (m). For, though the interest of the lord is such, that a custom for his entire exclusion from the profits of a common would be held unreasonable, and could not be maintained, yet his right to any of the minerals or to the trees would show the requisite participation in the profits. For the same reason, the lord, by participating in the right of pasture, or in any other way, may, by custom, lose all claim to the minerals.

This right of the lord to the subjacent soil, in the absence of custom or express grant, is of so strong a nature, that it may be exercised to the destruction of the herbage, and to the partial if not the absolute exclusion of the rights of the commoners (n). His authority, in this respect, is quite distinct from that derived from the Statute of Merton, and does not depend upon a sufficiency of herbage being left to the commoners (o). It would be difficult to define any

677; Horsey v. Hagberton, Cro. Jac. 229; Cooper v. Marshall, 1 Burr. 265; Sadgrove v. Kirby, 6 T. R. 486; S. C. in error, 1 Bos. & Pul. 17; Filewood v. Palmer, Mos. 169; 5 Vin. Ab. 7.

(1) Folkard v. Hemmett, 5 T. R. 417, n. (a). See Wentworth v. Clay, Fin. Rep. 263; Boulcott v. Winmill, 2 Camp. 261; Northwick v. Stanway, 3 Bos. & Pul. 346.

(m) Hoskins v. Robins, 1 Mod. 74; 2 Saund. 324; 2 Keb. 842; 1 Lev. 123; 2 Pollexf. 13; 1 Ventr. 123,

163. See also Potter v. North, 1 Vent. 383; 1 Saund. 347; 2 Keb. 513; 1 Lev. 268; North v. Coe, Vaugh. 251; 1 Lev. 253; 2 Bulst. 87, n.(6); Co. Litt. 122 a; Kentick v. Pargiter, Cro. Jac. 208; Yelv. 129; Douglass v. Kendal, ibid. 256; Pitt v. Chick, Hut. 45.

(n) Bateson v. Green, 5 T. R. 411. See Clarkson v. Woodhouse, 5 T. R. 412, n.; 2 T. R. 392.

(o) 20 Hen. 3, c. 4; and see 13 Edw. 1, st. 1, c. 46.

limit to the exercise of such a right of the lord (p). His claim is paramount to the privileges of the manorial tenants. His interest in the soil is the remnant of an estate once absolute and free from control.

In the case of Bateson v. Green, the lord claimed a right to dig clay in a common already insufficient to supply herbage for the commoners. It was held by the Court of King's Bench, that the lord might have such a right, and that the evidence supported it. Lord Kenyon observed, that if the lord had only a right to dig clay for his own use, or had any other limited right, then his digging for sale would have been an excess. Mr. Justice Buller, who was an eminent mining lawyer, added, that the extent of the several rights of the lord and the commoners depended altogether on immemorial custom; that where there are two distinct rights which encroach on each other, the question was, which was subservient to the other?-that in general the lord's was the superior right, because the property of the soil was in him; but that if the custom showed it was subservient to the commoners, then he could not use the common beyond that extent; but there the evidence showed that the lord had always dug the common, when, where and in what manner he pleased, though for a great number of years past there was not a sufficiency of common for the tenants.

Some doubt was thrown upon the correctness of these opinions in the judgment in the late case of Hilton v. Lord Granville (q). But there is a clear distinction between copyhold lands, in which the tenant has the possession, and common lands, where the right of possession is wholly vested in the lord. The estate of the lord in commons is of superior origin and power to that of the commoners. In customary lands he claims the right of property in mines as part of his freehold inheritance, but he claims the right to

(p) See Arlett v. Ellis, 7 Barn. & C. 366, 373.

(q) 5 Q. B. 701; 13 L. J., N. S., Q. B., 200. See last section.

work them by prescription, as they are in the possession of others. In common lands he has never lost possession of any part, and that possession, once absolute, is still sufficient to secure to him the full benefit of his first rights. For all presumed grants of common must be held to have been made subject to the existing and concurrent interests of the lord. He is restrained by statute from arbitrary acts of inclosure, which would defeat the acquired rights of the commoners. But he is not amenable for any acts which are necessary for the full enjoyment of his own rights, even if these acts should tend altogether to deprive the commoners of their pasturage.

In a suit for specific performance, it was objected that the mines agreed to be purchased were situate under a common, where others had a right of common, and consequently the purchaser would be subject to actions for sinking shafts to work the mines: Lord Eldon, after remarking upon the improbability of any obstruction from the commoners, said, that in case of any action a farthing damages would be sufficient, and decreed a specific performance (r).

In the above case, the mines were sold together with an estate, but it does not appear whether the vendor was the lord of the manor, or how he acquired a right to the mines. It is submitted, that if his right fell within the scope of the preceding observations, a commoner could have no pretence for claiming even a farthing damages.

The right of the commoner to the surface is thus subservient, under such circumstances, to the right of the lord to take the minerals, but the exercise of that right must be bonâ fide, and unattended with malice. On one occasion, the Court of King's Bench held, that if the lord exercised the right of taking stone wantonly, and so unnecessarily to interfere with the commoner's right of pasture, he would be

(r) Anon. Chanc. 7th Sept. 1803, MS. See Sugden, Vend. and Purch. vol. 2, p. 184.

liable to an action, but not, if he acted honestly in getting stone as occasion required (s).

A prescription, or an actual possessory title, which gives the right to the minerals of a common to the commoners, must, as in other similar cases, be evidenced by distinct acts of ownership.

Thus, an action of trover was brought for copper ore raised upon Towan, in the parish of St. Agnes, Cornwall, by the lessees of the lord of the manor, who was entitled to the toll of tin in all the lands, both customary and freehold, and also in the wastrell or common called Towan Common. The defendant was a lessee of the owners of six tenements in Towan vill, who were exclusively entitled to the herbage, and five of which tenements were freehold and one customary freehold. It was proved, that these owners had received dues of copper in respect of sets granted by them for twenty or thirty years. It was insisted at the trial, that the lord of the manor was entitled to the copper under the waste, but Bayley, J., said, that though the general presumption of law was, that the soil of the waste was in the lord of the manor, yet it might be shown by evidence of acts of ownership to be in the tenants of the six tenements. A verdict was found for the defendant, and a new trial was afterwards refused on the ground of adverse possession (t).

It has been said before that the lord cannot, by custom, be entirely excluded from the profits of a common. In the case just cited, it appears that the lord had no right either to the herbage, or to the copper mines, but his right to the toll of tin still existed.

But it is presumed the lord may possibly lose his claim altogether to any part of the surface or subsoil of a common, by neglecting to assert his rights by acts of ownership, or by his title not being otherwise acknowledged. If, for instance, the minerals are worked by strangers, who, in

(s) Place v. Jackson, 4 Dow. & R. 318.

(t) Curtis v. Daniel, 10 East, 273.