maintained, in several instances, the right of his court to dispense this relief, and who invited all mankind to come and pray for it (i). But his opinions in favour of this practice have been shown to have been inconsistent and incorrect, and it may be doubted whether the Court of King's Bench, much less the Court of Common Pleas, ever had such a power at all (k).

Ecclesiastical persons cannot be restrained from working open mines or old quarries, according to Lord Hardwicke (). In this respect, therefore, they seem to resemble ordinary tenants for life.

From the same case, it would appear that no patron will be entitled to an account of profits arising from mines, even if they were improperly obtained, because he cannot derive any profit from the property of the church. This reason is very insufficient. Why should it follow, that when a patron applies for an account he intends to derive any profit from the benefice? The patron is the guardian of the rights of the church, and the same power that enables him to proceed against an ecclesiastical person at all, might extend with propriety to the demand of a proper application of past profits.

Although a rector cannot legally commit waste, he may, like other limited owners, take stone or timber for repairs and other necessary purposes connected with the parsonage property. But he will be restrained at the suit of the patron from selling for other purposes, or for providing any fund for past expenditure or for future repairs. A parson has not so large an estate in the church domain as deans and chapters, and, as a general rule, he must apply the produce of the land to the property of his benefice (m).

In another case, where a surveyor of highways had opened gravel pits in the glebe lands under his statutory powers, it was held, that a rector was guilty of waste for

(i) 1 Roll. 86.

(k) 1 Bos. & Pul. 111, 125.

(2) Knight v. Moseley, Amb. 176.

(m) Duke of Marlborough v. St. John, 5 De G. & Sm. 174; 21 L. J., N. S., C. C., 381.

having continued to work the gravel in the same pits for sale, and his executors were made liable to the succeeding incumbent for spoil of ground (n).

It will be afterwards seen that all spiritual persons may, with certain consents and restrictions, under a late statute, demise both opened and unopened mines without distinction (o).

(n) Huntley v. Russell, 18 L. J., N. S., Q. B., 239.
(0) Chap. IX.

CHAPTER V.

RIGHTS OF WAY, AND WATER, and other mining RIGHTS.

I. General Inherent Rights.

II. Rights of Way.

III. Rights of Water.

IV. The Prescription Act.

SECTION I.

GENERAL INHERENT RIGHTS.

It has been seen that a grant or exception of mines confers or reserves a right to work them without express powers for that purpose. For the law will not permit a thing to be given without itself adding the proper means of possession and enjoyment (a). But as the law will not authorize acts which exceed the manifest object of the grant, it becomes necessary to inquire into the limit within which these acts are allowed. In leases by competent owners, larger powers are generally given than would be implied by law. But it is frequently necessary to inquire into the powers of the lessor himself. There are also many rights connected with the due enjoyment of mines which affect neighbouring proprietors and inhabitants, and which, therefore, demand careful conduct on the part of the mining proprietors.

As a general rule, the bare right to work mines will be accompanied with the right to use so much of the surface as is strictly necessary and reasonable. This may often be determined by reference to the usage in similar pursuits; and an owner of mines will not be limited to such appliances only as existed at the time of some remote grant; but (a) Shep. Touch. 89.

he may freely employ the means of modern invention. He will be entitled to erect all adequate modern machinery, as steam-engines, for draining the mines, and for drawing the minerals from deeper workings (b). All such rights are construed liberally in favour of the grantee. Mining operations, like all practical and mechanical pursuits, derive gradual improvement from the advancement of the arts and the discoveries of science. The pressure of competition, and increased expenditure, demand that the grantee should fairly participate in the progress of society, and reap the full benefit of his grant. It must be presumed that the grantor intended to give the right to adopt all the means usually employed for the time being in such enterprises. But all expedients, whether old or new, must be strictly subservient to the specified purpose. Thus, an owner of that kind cannot use the surface or any of the materials of the land for changing the character of the mineral to which he is entitled, as for converting for sale coal into coke, clay into bricks, or for smelting the metallic ores, much less for any further purpose of manufacture. For his property can only be procured in its first marketable state. To effect this object he may avail himself, subject, often, to the concurrent rights of other owners, of the elements and materials afforded by the land in which his mines are found. Thus, he may use water for cleansing ores and for machinery, make channels and reservoirs, and make and repair roads. In commons this right would probably be held to have a wider extension than in ancient lands; but even in these lands, it is presumed, there would exist a right to take stone or clay for the necessary mining purposes. But this right does not extend to timber. Thus, an action of waste was brought against a lessee of the land for felling oak trees for the use of open mines. It was held, that a lease gave no such implied power; and that, as a tenant could

(b) Dand v. Kingscote, 6 Mee. & W. 174.

not cut wood for the repair of new houses, much less could he do so for acts which impoverished the inheritance (c).

It has been seen that the lord of a manor, by general custom, and the tenants, by special custom, may be entitled to the mines in a waste or common. In either case there will be the same line of demarcation between the acquisition of a mineral immediately vendible, and the processes carried on for changing its character. Such processes are quite distinct from mining, and are often carried on at some distance from the mines, and as a separate branch of business. But, independently of this distinction, it has been seen, that when the lord is entitled to the mines of commons, he may, in the legal and proper exercise of his right to work them, even possibly deprive the commoners of all participation in the profits of the common (d). But this right to work the minerals will not in itself authorize him to exceed the power of an ordinary commoner, with respect to the erection of smelting or refining works. This object must be accomplished upon a different principle, viz., that arising from the paramount and peculiar authority of the lord over common; and its attainment will depend upon the extent to which he can appropriate and inclose the common lands of a manor without the consent of the other commoners. There can be no doubt that, by special custom, the lord may inclose against commons of every description (e). The lord or his grantee (ƒ) may also approve part of the common under the powers of the Statutes of 20 Hen. III. c. 4, and 13 Edw. I. st. 1, c. 46; and the true limit would seem to be, that, in so doing, he leave a sufficiency of common for the tenants of the manor (g). This sufficiency is a question of fact for the jury, and to be determined with reference to the rights of all interested, and the actual cir

(c) Lord Darcy v. Askwith, Hobart, 234; Hutt. 19.

(d) See Chap. II. Sect. 3.
(e) Arlett v. Ellis, 7 Barn. & C.

(f) Glover v. Lane, 3 T. R. 445. (g) Sadgrove v. Kirby, 6 T. R. 485; Shakespeare v. Peppin, 6 T. R. 748.