492 RELATING TO MINES AND MINERALS. [CHAP. XIII. on the case against his lessee for an injury to his reversion, for an improper working of the mine, although the injury might have been redressed by an action for breach of covenant under the lease. When there is a contract under seal, the same contract, not under seal, cannot be the ground of an action. But when a lessee commits an act of waste, the lessor is not bound to take the higher remedy for breach of covenant (c). There may sometimes be an election between case and trespass. If workmen are forcibly ejected from a mine, it is trespass; but the refusal generally to allow a claimant to exercise his rights, which may exist in parts of the mines not previously worked, would furnish sufficient ground for an action on the case (d). In an action for damages suffered by an owner in his coal mine, in consequence of the working of another owner in his mine, which was separated from the former by another coal mine, it was held, that an action on the case was the proper remedy (e). The grant of an exclusive licence will support an action of trespass or of case (ƒ). Under such a licence it is not necessary, in an action on the case, to show a seisin in fee, as that action is founded on possession only (g). An action of ejectment will also be maintainable for recovering the possession of a mine. It might certainly be contended, when mines form a distinct inheritance, that the action of ejectment is possessory; that the object of con (c) Kinlyside v. Thornton, 2 W. Bl. 1111; Muskett v. Hill, 5 Bing. N. C. 694; Marker v. Kenrick, 13 C. B. 188; 22 L. J., N. S., C. P., 129. See M'Donnell v. M'Kinty, 10 Irish L. Rep. 514. (d) Muskett v. Hill, supra. (e) Haward v. Bankes, 2 Burr. 1113. See Raine v. Alderson, 6 Scott, 691; 4 Bing. N. C. 702; Scott v. Shepherd, 2 Bl. 392, and 1 Smith's Leading Cases, 210, as to the distinction between trespass and case. (f) Bishop of Winchester v. Knight, 1 P. W. 407; Harker v. Birkbeck, 1 W. Bl. 482; 3 Burr. 1556; Roberts v. Davey, 4 B. & A. 665. (g) Thriscutt v. Martin, 3 Exch. 454; 18 L. J., N. S., Exch., 291. tention must, at least, be such as to be capable of actual possession from the delivery of the sheriff; that all the excavated parts would be of an incorporeal nature, or, at any rate, would become part of the general freehold, through which a mere right of way would be permissible; and that all the portions, which are severed, instantly lose the character of land, and become mere personal chattels. Such an action would certainly not seem to correspond, in such a case, with its exact definition. But in this, as in some other instances, the action of ejectment has been carried beyond its original limits. It has been expressly decided, that such an action for the recovery of mines may be supported (h). It would seem, however, to be doubtful whether such an action could be brought to recover the possession of unopened mines, the title to which is distinct from that to the surface. This subject has been already discussed in considering the operation of a feoffment with livery of seisin. In a case of unopened mines, it was observed by Lord Hardwicke, that the question was not, whether actual entry was necessary, and he denied that without entry an action of ejectment could not be brought; for the common rule, obliging the defendant to confess lease, entry and ouster, was, in law, sufficient to support that (i). It will be seen, in a subsequent chapter, that the action may be brought for tin bounds, when they are preserved by the actual working of the mines, and not merely claimed by cutting turves. Although an ejectment will not lie for a bare incorporeal hereditament, yet all the rights and easements of that kind (h) Comyn v. Kyneto, Cro. Jac. 150; Wyld's case, Lawson v. Williams, cited Cro. Jac. 150; Cullen v. Rich, Bull. N. P. 102; Harebottle v. Placock, Cro. Jac. 21; Andrews v. Whittingham, Carth. 277; Salk. 255. (i) Sayer v. Pierce, 1 Ves. sen. 232. See Chap. VI., and Wilkinson v. Proud, 11 M. & W. 33; 12 L. J., N. S., Exch., 227. 494 RELATING TO MINES AND MINERALS. [CHAP. XIII. enjoyed with land or mines may be recovered with the subject matter of which they are deemed to form part (k). On the trial of an ejectment, the mesne profits may now be recovered down to the time of verdict (?). It has been seen, that an ejectment cannot be brought by the lord of a manor for the mines situate in the lands of his copyhold tenant, in the absence of special custom; for though the former is entitled to the right of property, the latter is entitled to the right of possession (m). It has been decided, that such an action will not properly lie in respect of a licence only to work mines. In the case of a licence, an action of this kind was brought for the recovery of the mines. It was held by the Court of King's Bench, that a proviso for re-entry was not less applicable to a licence to work mines, than to an actual demise of the minerals, because under such a licence works might be effected, and a corporeal possession had, which it might be competent for the grantor to reserve, but that such an instrument did not confer a right sufficient to support the action of ejectment (n). When the minerals are severed, and become the subject of manipulation, they are mere personal chattels, like the trees which are severed from the freehold, and an action of trover will, therefore, be maintainable for their recovery in that condition. This form of action has been often adopted to try the right to mines (o). A parol licence is sufficient for this action (p), and it need not be exclusive, with respect to the minerals actually raised. (k) Crocker v. Fothergill, 2 B. & Ald. 661, per Holroyd. (1) 1 Geo. 4, c. 87, s. 2. (m) Lewis v. Branthwaite, 2 Barn. & Ad. 437. See Chap. II. (n) Doe d. Hanley v. Wood, 2 Barn. & Ald. 739, 740. (0) Wilson v. Mackreth, Burr. 1825; Hoe v. Taylor, Moore, 355; Player v. Roberts, W. Jones, 243; Cullen (Lord) v. Rich, Bull. N. P. 102; 2 Str. 1142; Rowe v. Brenton, 8 Barn. & C. 737; Rowe v. Grenfell, R. & M. 396. (p) Northam v. Bowden, 24 L. J., N. S., Exch., 237. The change of chalk into lime, it seems, may be sufficient to defeat the action (g). The ejectment of workmen, and the refusal to allow the removal of the property, do not amount to sufficient evidence of conversion, in the legal sense (r). An action of trover cannot be maintained for the recovery of a certificate or voucher of a person being entitled to certain shares in a mining association, if the plaintiff can show no legal title to the document (s). An action for use and occupation was held to be maintainable, in respect of a shaft or down, which had been let by written agreement not under seal, if the defendant could be considered as having taken possession of the shaft; and he was also held liable, under those circumstances, to all the rent payable to the lessor till the determination of his tenancy, and whether he had continued to work the mine or not. But it was also said, that if he had merely caused holes to be dug, and had them filled up immediately, with a view to ascertain only what kind of a bargain he was about to make or had made, such acts would not amount to a taking of possession (t). A non-resident partner in a cost-book mine is not within the jurisdiction of the County Courts Act, as a person carrying on business there (u). Mines may also be taken possession of under the writ of elegit. A tenant in elegit, it has been seen, cannot open mines in lands of which he has taken possession. This restriction, it is presumed, would not apply to mines forming a separate inheritance; for such an exercise of power would not constitute waste. The point, however, is of little practical importance, as it can rarely, if ever, happen, notwithstanding the recent extension of the remedy, that such a (q) Thorogood v. Robinson, 14 L. J., N. S., Q. B., 87. (r) Ibid. (s) Dawson v. Rishworth, 1 Barn. & Ad. 574. (t) Jones v. Reynolds, 7 Carr. & P. 335; 4 Ad. & E. 805. (u) Mitchell v. Hender, 23 L. J., N. S., Q. B., 273. 496 RELATING TO MINES AND MINERALS. [CHAP. XIII. temporary tenant would feel justified in proceeding to open mines. SECTION II. EQUITABLE REMEDIES. COURTS of Equity have long ago adopted the practice of giving relief, in certain cases, by injunction, to restrain persons from working mines. This remedy was always obtainable in cases of waste. It was extended to trespasses in mining cases, for the purpose of preventing irreparable mischief (x). This right has been extended to restrain the taking of valuable stones, or nodules of clay used for making cement, and found on the sea beach (y); to restrain waste by a copyholder, at the instance of the lord (2); to prohibit an owner, who has a limited right to take stone from a quarry in the land of another owner, from abusing his privilege (a). In the last case it was said by Lord Eldon, that throughout Lord Hardwicke's time, and down to that of Lord Thurlow, the distinction between waste and trespass was acknowledged. The case in which Lord Thurlow first hesitated, was that of a person who, having a close demised to him, began to get coal there, but continued to work under the contiguous close, belonging to another person. It was held, the former, as waste, could be restrained, but, as to the close, not demised to him, it was a mere trespass; and the Court did not interfere. But Lord Thurlow must have changed his opinion, on the ground that the defendant was (x) Gibson v. Smith, Barn. Ch. Rep. 497; Player v. Roberts, W. Jones, 243; Anon., Amb. 209; Grey v. Duke of Northumberland, 13 Ves. 236; 17 Ves. 281; Mitchell v. Dors, 6 Ves. 147; Whitfield v. Bewit, 2 P. W. 240; Flamang's case, cited 7 Ves. 308; Norway v. Rowe, 19 Ves. 144; Field v. Beaumont, 1 Swanst. 208; 3 Madd. 102; Clowes (z) Richards v. Noble, 3 Mer. 673. (a) Thomas v. Oakley, 18 Ves. 184. |