The counsel were here stopped by the court.

Mr. GLASSE, in reply, cited James v. Cochrane, 8 Ex. 556; Green v. Sparrow, 3 Swanst. 408; Ridgway v. Sneyd, Kay 627; and Rogers on Mines, 574.

SIR R. MALINS, V. C.

This case has been very elaborately and carefully argued, and it will not, therefore, be for want of the most complete assistance on the part of counsel that I shall err, if I do err, in the judgment I am about to give.

The case raises points of great importance, not only to the parties concerned, but also to that large portion of the community engaged in mining operations. The rights of the parties must depend, however, on the legal contract existing between them, which is constituted by the lease of the 1st of July, 1862, and which is fully set out in the bill.

But before I go to the terms of that lease, it is not unimportant to look at the position of the parties, and to see what were the circumstances which led to the execution of that lease.

The plaintiff, Mr. Thomas Randall Wheatley, and his son, Mr. Moreton John Wheatley, who is a captain in the Royal Engineers, have been for some years past the owners of the property in question, and at the time of the contract they were. seized in fee of the land on which the mines in question are situated. The Gwersylt is an estate of 465 acres in extent. It has immediately adjoining to it an estate called the Brymbo estate, which was in the year 1859, and had been for some years before that time, worked by the defendants, who had then been and are now working the adjoining mine on a large scale. The coal measures lying under this property have an inclination, as appears from the evidence, of about 1 in 7, the p'aintiffs' estate being immediately adjoining the estate which is held by the defendants, under a lease from the Marquis of WestminThe dip of the measures is from the defendants' estate down to the plaintiffs' estate, so that, of course, in working the plaintiffs' estate they must work at a greater depth than they do in working the Marquis of Westminster's estate. It appears that no attempt had been made prior to 1854, to grant

ster.

any lease, nor to have the coal under this estate worked, and that doubts were entertained whether, if coal were found, it would be found in a workable condition, and a profitable property to work. That may have been the cause why not steps were taken either by Wheatley or his son to procure the working of these mines. However, as the case now stands, the evidence is quite clear that the quantity of coal under the Messrs. Wheatley's estate is not less than 9,000,000 tons, and that it is capable of being worked to the extent of 500 or 600 tons a day, which, at the royalty that is paid under this lease, amounting to 6. a ton, would produce a very large income to the Messrs. Wheatley. The agreement which was executed by the parties on the 20th of February, 1859, is conclusive evidence as to doubts of the practicability of working the mines, since it was provided that the defendants should be allowed two years to prove the existence of coal, paying only for the quantity got. The other terms of the agreement were carried into effect by the lease itself, which was executed two years and a half after the contract. The works were opened suffciently for the purpose of proving the coal, and the defendants having satisfied themselves that the coal was there, and that it was in a workable condition, the rights of the parties were finally determined by the lease of the 1st of July, 1862. (His Honor then stated the provisions of the lease already fully set out.)

Now, it has been contended that there is an obligation in this lease to sink pits, and there is no doubt that common sense would point out that if there be a demise of a coal mine unopened, and there is not an adjoining one open, the only way in which you can by any possibility get to the coal is by sinking pits; but I confess I can have no hesitation in coming to the conclusion that the object of these lessors in 1859 or 1862 (although their views may have changed) was not to encourage the sinking of a pit, but rather to discourage it, and therefore they give the power to the defendants of working these mines by instroke and substroke, and then provide that if (not therefore contemplating that it would be a matter of course that pits should be sunk), but that if pits should be sunk, then, that instead of encouraging the sinking of those pits by diminishing the sleeping rent on account of a great

VOL. VIII-36

expense being incurred in sinking them, they increase the sleeping rent from £720 a year to £1,000 a year. The portion of the covenants which has been mainly relied upon, and which has been, in fact, the subject of this suit, is in these terms: "and also that the lessees shall and will work and carry on the said mines of coal and ironstone hereby demised, uninterruptedly, efficiently and regularly (except in the event of strikes of workmen, accidents or other casualties), according to the usual or most approved practice adopted and used in the working of mines of coal and ironstone, and shall and will get and raise the same seams and beds of coal hereby demised, clearly out in regular course, and shall work the upper of the said seams or beds, respectively called 'the Brassey,' 'the Two-yard,' and 'the Main coal," each seam in advance of the seam next before it, respectively, so as not to endanger the upper seams or seam by undermining." Then there is a clause containing a power to the lessees at any times at the end of seven years, or at the end of any one year, by twelve months notice after that time to determine the lease. From the time of the execution of this lease in July, 1862, it is admitted the defendants have regularly paid to the plaintiffs the sleeping rent of £720 per annum, but considering that in 1862 the existence and workability of the coal under the Gwersylt estate has been proved, and that the lease had been executed in the expectation on the part of the plaintiffs, as in the belief also on the part of the defendants, that large mining operations would be carried on under this estate, it is not to be wondered at that the Messrs. Wheatley became greatly disappointed at the result which took place, namely, that they did not get more than the sleeping rent of £720 a year. I think it will be found in order to work up to the sleeping rent, it would require something like eighty or ninety tons to be worked out every day. The evidence is clear that there would be no difficulty whatever in working the colliery to the extent of some 200 or 300 tons a day, and, of course, if they work 300 tons a day it would give the lessees, in the shape of royalty, 300 sixpences, or £7 10s., and that would make a large increase in their receipts.

Finding, therefore, that in the year 1865 they got nothing but their sleeping rent, and that the sleeping rent had not

been worked up to, it being also admitted on both sides that up to the present time the workings have not amounted to the sleeping rent by some £2,000, so that now the lessees will be at liberty to work so many tons at 6d. a ton as will produce £2,000 without paying anything additional, I repeat that it is not to be wondered that the Messrs. Wheatley were disappointed at the result of the operations in 1865. At the same time they should have remembered that £720 is a very large addition to the income on an estate of 465 acres the slightest damage done to it, and without any portion of the surface being touched, nothing being done upon their estate which any one walking over it could by possibility have discovered. Therefore, although it was open to both parties to entertain these different views of their dealings with one another, the question is, whether anything has taken place which justifies the institution of this suit. The original bill was filed on the 5th of January, 1865. The dissatisfaction of Messrs. Wheatley at that time, and their dissatisfaction now, is not, I am certain, as to the mode of working the mine by the defendants, but as to the extent of the working only. If the extent of the working would have been sufficient, I am perfectly satisfied that this bill would never have been filed; what they want is to receive more money in the shape of royalty. It is perfectly clear, for the reasons which I have already stated, that neither in 1859 nor 1862, did the parties contemplate that pits would be sunk, nor did the Messrs. Wheatley desire that they should be sunk. On the contrary, I think it is obvious they desired they should not be sunk. The question was distinctly raised by the original bill. The present bill does not in terms pray that they should be ordered to sink pits, or require that they should do so. But the evidence in the cause, as now given, is directed expressly to this point. If the evidence of Mr. Shone, the plaintiff's mineral agent, gives a correct view, the lease of 1862 might have thrown the obligation of sinking pits upon the defendants; whereas, as I have already observed, instead of throwing that obligation upon them it relieves them from it, and rather goes to prohibit than to favor it. But Mr. Shone says that ever since he became con. cerned for the plaintiffs he has been strongly of opinion that it was and is necessary to sink pits upon the Gwersylt estate,

in order effectually to work the mines thereunder, and he says he continuously urged this, without success, till the month of September last, when the defendants gave him a notice re. quiring to take a piece of land for the purpose of sinking a pit or pits thereon. Mr. Cadwaladr, who, no doubt, is a gentleman of great experience, follows the same idea (I do not see the slightest reason to dissent from his evidence, on the contrary, as far as I can form any opinion upon the subject, I think that the evidence of Mr. Shone and Mr. Cadwaladr is well founded). Mr. Cadwaladr says, and there is no doubt about it, that these collieries never can be worked to the fullest advantage unless pits are sunk upon the estate. But it does not, therefore, follow from that, that the plaintiffs are entitled to have them so worked.

Then the next witness, Mr. Livesey, a gentleman of great experience, entirely confirms the views of Mr. Shone and Mr. Cadwaladr. In fact all the principal evidence for the plaintiffs is directed to the necessity and the obligation of sinking pits.

It is stated that from the 1st of January, 1862, down to the present time, the defendants have worked only about one acre and three quarters of an acre of the "Two-yard" seam, and only about eighteen acres of the "Brassey" seam, and they have not worked the "Main " seam at all, and the quantity of coal worked by them up to the present time does not exceed 110,000 tons, and not more than one ninth part of the total quantity of coals worked by the defendants out of the mines of the Marquis of Westminster and others; and if the defendants are permitted to continue working in the same manner, not more than one twelfth of the coal in the mines will be gotten within the term of the lease, that is, within forty-two

years.

Then it is further alleged by the plaintiff that the defendants' assertion that they are unable to find a market for the coal is without foundation, since they are now selling eight times as much coal raised from the Marquis of Westminster's mines as they have raised from the plaintiffs'; but that if it were a fact that they could not sell the coal, the defendants might, so as to prevent their working at a loss, determine their lease by giving the plaintiff's twelve months' notice. The plaintiffs charge, however, that so long as the defendants