had not been wrongful, the assignees would have been entitled for the life of the bankrupt. There was another tenant for life, still living, and who had not taken any part in the waste (s). The same rule prevails in favour of a tenant for life, unimpeachable for waste, when the waste has been committed by a deceased tenant for life, who had no right to commit waste (t). A tenant in tail after possibility of issue extinct, has only an estate for life in the lands. This estate has, however, been derived from an estate in fee tail; on this account, he possesses more than the ordinary powers of the tenant for life, and having once had the power of committing waste, he is still dispunishable for waste, because he continues in the seisin by virtue of the livery upon the estate tail (u). But he cannot commit wanton or malicious waste, in which he will be restrained by the Court of Chancery in analogy to the rule to be presently noticed with respect to a tenant for life without impeachment of waste (x). His privileges extinct are also personal, and arise from the privity of estate. His grantee, therefore, will be a mere tenant for life (y). A tenant for life, without being authorized, cannot commit waste. But he will be entitled to take the minerals upon his lands for the purposes of husbandry and repairs. One of the incidents to his estate is his right to estovers (z). This word has been generally defined to mean an allowance of necessary wood; but there seems reason to contend that the original word estoffe, whence comes the English word stuff, might comprise all that was necessary for the cultivation and repairs of the estate generally. The statute of Westminster 2, c. 25, gives an assize of novel disseisin de (s) Lushington v. Boldero, 15 Beav. 1; 21 L. J., N. S., C. C., 49. (t) Waldo v. Waldo, 10 L.J., N. S., C. C., 312. (u) Co. Litt. 27 b; 2 Inst. 302; 1 Roll. Rep. 184. (x) Abraham v. Bubb, 2 Freem. 53; Anon. 2 Freem. 278; Lewis (y) Co. Litt. 28 a; Aprice's case, 3 Leon. 241. (2) Co. Litt. 41 b. estoveriis bosci, which would seem to show that the word was not used in necessary connection with wood. At any rate, there can be no doubt that a tenant for life may, in all cases, dig for gravel, lime, clay, earth, stone or similar minerals for the repair of buildings and the manuring of the land (a). Thus, it is said, if a lessee of land with mines of coals, iron, and stones, digs as much as is necessary for him to use, without selling, it is no waste (b). But it is also stated by Coke, if the tenant cut down trees for repairs and selleth them, and after buyeth them again, and employs them about necessary repairs, yet it is waste by the sale (c). But an important distinction has been taken between mines open and unopened. Lord Coke says, "a man hath land in which there is a mine of coals, or of the like, and maketh a lease of the land (without mentioning any mines) for life or for years, the lessee for such mines as were open at the time of the lease made, may dig and take the profits thereof. But he cannot dig for any new mine that was not open at the time of the lease made, for that should be adjudged waste, and if there be open mines, and the owner make a lease of the land, with the mines therein, this shall extend to the open mines only, and not to any hidden mine; but if there be no open mine, and the lease is made of the land together with all mines therein, there the lessee may dig for mines and enjoy the benefit thereof, otherwise those words should be void (d)." It might certainly seem to be the true construction of an instrument granting lands with all mines therein, and the mines were unopened, that the tenant for life or for years should be unimpeachable for waste, and be at liberty to work the mines by express stipulation; ut res magis valeat quam pereat; but this doctrine, notwithstanding Saunders' case, where it was first (a) Co. Litt. 53 b, 54 b; Moyle v. Moyle, Owen, 67. (b) 2 Roll. Abr. 816. (c) Co. Litt. 53 b. See Countess of Plymouth v. Lady Archer, 1 B. C. C. 159. (d) Co. Litt. 54 b; Saunders' case, 5 Co. 12; Lord Darcy v. Askwith, Hob. 296; Hutt. 19. See Code Nap. Civ. 598. resolved, was denied both by Lord Macclesfield and Lord King in a similar case, in which it was urged, that the mines being expressly granted by the settlement with the lands, it was as strong a case as if the mines themselves were limited to the tenant for life. But it was decided, that a tenant for life subject to waste shall no more open a mine than cut down the timber trees which were equally granted by the deed, and that the meaning of inserting mines, trees and water was that all should pass, but as the timber and mines were part of the inheritance, no one should have power over them but such as had an estate of inheritance limited to him (e). The same reasoning might apply to mines that were opened, which are equally part of the inheritance, but the presumption in favour of this construction of the deed is certainly stronger; for the absence of more express stipulation would seem to show that the land was granted with all its current profits (f). In the other case, there was, properly speaking, no mine at all, but only veins or strata. Indeed there can be no doubt that, though a tenant for life subject to waste cannot in any case open mines, he may, in the absence of stipulation to the contrary, proceed to work the mines or quarries that are opened. In this instance, modus et conventio vincunt legem, and it is quite competent for a settlor to stipulate that a tenant for life or for years shall not even work the open mines and quarries (g). It has been decided, that a tenant for life, subject to waste, may open new workings to pursue old veins which were open when he came into possession of the estate. An injunction was moved for, but Lord King observed, that the question had been determined in the great cause of Hellier v. Twyford, in which he was of counsel, and which was tried at the assizes in Devonshire before Mr. Justice (e) Whitfield v. Bewit, 2 P. Wms. 240. (f) Rutland v. Greene, 1 Sid. 152; 1 Lev. 107. (g) Ferrand v. Wilson, 4 Hare, 383; 15 L.J., N. S., C. C., 41. See Doe d. Hopkinson v. Ferrand, 20 L. J., N. S., C. P., 202. Powell, where it was proved by witnesses to be the course of the country, and a practice well known in those parts among the miners, that any person having a right to dig in mines may pursue the mine, and open new shafts or pits to follow the same vein; and that otherwise the working in the same mines would be impracticable, because the miners would be choked for want of air, if new holes were not continually opened to let the air into them; that the same vein of coal frequently ran a great way, and the same mine of coals was very knowable, and easy to be discerned (h). In the same case, it was decided that, to enable a tenant for life to work mines, it is not necessary that they should have been open at the time of the settlement. It is sufficient if the mines are lawfully opened by any precedent tenant in tail, though subsequent to the settlement. The actual distinction between an old mine and a new mine has never been plainly determined; at least no case is reported. Such questions might be found to be difficult of solution. From the case just cited, it would seem that the pursuit of the same vein or stratum would be permitted to a person claiming to work old mines. There does not appear to be any objection to such a test, if the works were continuous. It might be doubtful, however, how far a mine which had been discontinued could be considered to be still an old mine (i), or whether a new bed or vein can be worked by means of an old shaft (k). Much would, in all such cases, depend upon the particular facts (1). In a late case, an owner in fee had made some preparations for working clay. There were old pits which had not been worked for twenty years, and it was stated that he had taken some clay from them. But they were not stated to be in a course of working at his death. A tenant for life, under his will, began to dig clay, but an injunction was (h) Clavering v. Clavering, 2 P. Wms. 388; Sel. Ch. Ca. 79; Moseley, 219. (k) Ferrand v. Wilson, supra. Taunt. 410. (i) Ibid. F granted, in order that the state of the pits might be more exactly ascertained (m). Cases of this kind will mostly depend on the distinction between suspension and abandonment (n). Such is the law with respect to the rights of a tenant for life subject to waste, and we are now to consider the rights of a tenant for life, who is made expressly dispunishable for waste, or who is without impeachment of waste. It has frequently been decided, that these words only extend to permissive waste, and not to the destruction of the estate itself, and that they will not authorize any malicious or extravagant acts of ownership, as in cutting down ornamental trees, or in wantonly pulling down houses (o). It had been decided in an old case at law, that the words, without impeachment of waste, gave the tenant the absolute property in the thing wasted, and courts of equity were for some time prevented by this case from interfering, as it would have been to declare that a man should not be allowed to make use of the property which the law allowed him(p). But it has also been held at law, that a tenant for life, under these circumstances, was only exempt from an action of waste, the penalty of the Statute of Gloucester, the recovery of treble value and the place wasted (g). It seems, however, never to have been disputed, either at law or in equity, that a tenant for life, without impeachment of waste, may open and dig mines at his own pleasure (r). (m) 8 Viner v. Vaughan, 2 Beav. 466. (n) See Chap. V. (0) Packington v. Packington, 3 Atk. 215; Abraham v. Bubb, 2 Freem. Rep. 53; Vane v. Lord Barnard, 2 Vern. 738; 1 Salk 161; Bishop of London v. Web, 1 P. Wms. 527; Aston v. Aston, 1 Ves. 264; Piers v. Piers, 1 Ves. 521; Rolt v. Lord Somerville, 2 Ab. Eq. 759; Strathmore v. Bowes, 2 Bro. Rep. 88. (p) Lewis Bowles' case, 11 Co. 79. See 1 Ves. 265; Pyne v. Don, 1 Term Rep. 55. (g) 11 Rep. 82; Co. Litt. 220; 2 Inst. 146; 6 Rep. 63; Dyer, 184; Wood's Inst. 574. (r) Plowd. 135; Hard. 96; Tracy v. Tracy, 11 Vern. 23; Bray v. Tracy, 1 W. Jones, 51; Aston v. Aston, 1 Ves. 264. |