Share or in and the right of fishing as an adjunct thereto (p), is a corporeal hereditament, and therefore within this statute. Any share, estate or interest in land, as that term is terest in land. here used, is equally with the land itself within that term. Thus dower until assigned is a mere title, and interest er vi termini in legal understanding includes it (7), and brings it within the term land (r), and whether a freehold or a chattel interest. Land of any tenure. Copyholds. The land may be either freehold or copyhold or held according to any other tenure. An heir, whose ancestor had been dead forty years, was refused a mandamus to compel the lord of a manor to admit such heir to copyholds (s). But as the admission was only a preparatory step to trying the right, and not necessary to enable an heir to bring an ejectment, the refusal of the writ did not prejudice his right to try his title. On the application by a person not claiming as heir the court, notwithstanding the lapse of more than twenty years since the right accrued, would probably grant the writ. But where the right to a copyhold estate is barred by the Statute of Limitations, the Court of Chancery will not entertain, at the instance of the person barred, a suit against the lord to compel admission in order to enable the right to be tried at law (t). Copyholds grantable for lives successivè, the first cestui que vie having an absolute power of alienation and his widow being entitled to hold them durante viduitate, were granted in 1779 accordingly. In 1786 the widow of the first cestui que vie surrendered the copyholds and took a regrant of them for the lives of D. and of B. and C., the surviving cestuis que vie in the grant of 1779, and intermarried with the first cestui que vie, and died leaving her husband surviving, who in 1797 (p) Vide supra, pp. 191 et seq. (r) Marshall v. Smith, 18 Jur., (8) Rex v. The Lord of the Manor of Agardsley, 5 Dowl. 19. (t) Widdowson v. The Earl of Harrington, 1 Jac. & W. 532. surrendered, and took a regrant of them for his own life and the lives of two other persons, and in 1803 released the copyholds to the owner of the freehold in reversion in fee, in whom it was then vested severed from the manor, who in 1808 devised the property to trustees, and he and they held possession from 1803. In 1858 the second cestui que vie in the grant of 1797 claimed the property under it, on the ground that his title did not accrue until the death, in 1857, of the widow of the second cestui que vie in the grant of 1779; but the court, although it did not decide the case on the 2 & 3 Will. 4, c. 27, thought that the title of the plaintiff was barred by that statute (u). The right of the lord of a manor to enter on copy- Lord's right of holds for a forfeiture is an interest in land within this entry for a forstatute (v). feiture. The term land in legal signification is indefinite, and Mines. includes, not only the surface, but mines and every other thing under, as well as every thing on and above, cujus est solum ejus est usque ad cœlum (x), as part of, but not distinct from (y), the surface. In Reg. v. The Earl of Northumberland (z), it was said arguendo that mines unopened would not pass in a grant by the name of mines but as parcel of the soil, and that, by that name, open mines only would pass. Lord Dyer, however, said, that a vein when not opened might be termed a mine, quia de mineris aliquæ sunt occultæ, et aliquæ apertæ (a). In various cases it will be presumed that the fee simple of the land carries with it the right to the minerals; but that presumption is not universal, because in mining counties the right to the minerals and the fee (u) Phillips v. Ball, 6 Jur., N. S. 48. (v) See Co. Litt. 345 b; Doe v. Hellier, 3 T. R. 162; Whitton v. Peacock, 3 Myl. & K. 325. (2) Co. Litt. 4 a, b; Touch. 90; Rowbotham v. Wilson, 8 H. L. C. 348. (y) Touch. 77, 78; 2 B. & C. 197; Townley v. Gibson, 2 T. R. 701. (z) Plowd. 310. (a) See also Saunders' case, 5 Co. 12. Severed in title and possession from the land. Minerals, what. Mines distinguished from quarries. simple of the soil are frequently in different persons; the two things are frequently, for many generations, separate; in conveyances of land the minerals are not uncommonly excepted (b). The land in fee simple may be vested in one person, and another person may have an exclusive right to the mines under it (c), and the possession and the inheritance of them be different from the possession and the inheritance of the land (d); and the enjoyment of the soil by the owner of it is perfectly consistent with the right of the owner of the mines to them (e). The term minerals, though more frequently applied to substances containing metals, in its proper sense includes all fossil bodies or matters dug out of mines, and therefore beds of stone which may be dug by winning or quarrying (f). Freestone is a mineral; but in a contract may or may not be included in that term, according to the intention of the parties (g). Where there are minerals capable of being gotten, there, in legal understanding, is a mine, and the moment the minerals are severed they are gotten. There may be no machinery at the place where they are severed; but if men are sent in for the purpose it is the same thing (h). Mines are distinguished from quarries by the mode of working or getting the minerals which they contain (¿). A mine, said Kindersley, V.-C. (k), is not a (b) Rowe v. Grenfel, Ry. & Moo. 396; Seaman v. Vandrey, 16 Ves. 390; Barton v. Downes, Flan. & K. Ir. Rep. 505; Martin v. Cotter, 3 Jo. & Lat. 496; M'Donnell v. M'Kinty, 10 Ir. Eq. R. 514. (c) 1 M. & S. 84; Rowe v. (d) 2 Str. 1142; Cardigan v. (e) 16 Ves. 392; 10 Ir. L. R. 514; supra, pp. 317, 318. (f) Earl of Rosse v. Wainman, 14 Mee. & W. 859; Micklethwait v. Winter, 6 Ex. 644. (g) Bell v. Wilson, 2 Drew. & S. 395. (h) 2 Ad. & E. 598. (i) See Rex v. Inhabitants of Sedgeley, 2 B. & Ad. 65; Duchess Dowager of Cleveland v. Meyrick, 17 L. T. R., N. S. 238. (k) Bell v. Wilson, 2 Drew. & S. 395; 1 L. R., Ch. Ap. 398. quarry, and a quarry is not a mine; for, although we might be puzzled to form a precise definition, there is no doubt about the distinction. A mine, properly speaking, is a driving through the bowels of the earth, or sinking a shaft, and then working horizontally, although, perhaps, not at right angles (1); a mine is worked into the superincumbent earth, but a quarry is worked sub dio, by casting aside the surface. Mines generally, or of a particular species, as fodina May include plumbi, may include the land generally (m). Cock- land. corporeal here burn, C. J., seems to have forgotten this when he asked (n), "who ever heard of a grant of the mineral carrying with it the general ownership of the soil?" When open they are said to be a corporeal heredita- Whether corment (o), but when unopen an incorporeal one (p). poreal or inBut it is submitted that in either case and until gotten ditaments. they are a corporeal hereditament (q), and a part of the land; for when on a conveyance of the land they are retained by the grantor, they are excepted in the conveyance, and an exception, properly so called, can be of only a part of the thing granted, and they thus remain in him (r). It is also submitted that the case of Doe d. Hanley v. Wood does not support the proposition of Mr. Preston, that mines unopened are an incorporeal hereditament. Mines unopened, being parcel of, and not distinct Open are subfrom, the land, are not, but mines open are, as land or ject to dower. tenements (s), subject to dower (t). Mines from their nature are exempted from the pre- Exempt from sumption which non-user (u) justifies in other kinds of presumption arising from (1) See also 2 B. & Ad. 74. (m) Co. Litt. 6 a. (n) 3 Best & S. 748. (0) Prest. Touch. 96. (p) Ib. cit. Doe d. Hanley v. Wood, 2 B. & Ald. 724. (q) See Townley v. Gibson, 2 T. R. 701; 1 H. & N. 799. (r) Touch. 77, 78; Earl of Cardigan v. Armitage, 2 B. & C. (s) Litt. s. 36. (t) F. N. B. 149 C; Stoughton v. Leigh, 1 Taunt. 402. (u) Ante, Book III. Chap. V. non-user. Under cnstomary freeholds. Adverse title to. How the right to, distinct from the land, arises. property (u). When excepted in a conveyance in fee by the owner of the land they are, both as respects the estate and the possession, severed from the estate and the possession of the land, and remain in him as his separate and independent property, and (x) his estate in and possession of them remain unaffected; and until some act be done, or some claim be made, at variance or inconsistent with his right, his possession of them remains unaltered. The mere omission by him or those claiming under him to work them is quite compatible with the intention to preserve and to exercise the right to them (y). Mines under customary freeholds, that is, copyholds not held at the will of the lord, are vested in the lord, although he cannot work them without the assent of the tenant (z). As between persons working mines adversely to the persons entitled to them, the working for twenty years would give a title to the former against the latter (a); but, it would seem, as to only those which have been worked, and not as to those unworked, for the legal presumption, that possession of part is possession of the whole (b), is only made in favour of right, and in support of the agreement of parties (c). The right to mines distinct from the land may arise either by a grant of them, or by a mere licence to enter into the land and to take them, or by an exception of them to the owner of the land, on a disposition by him (u) Adair v. Shaftoe, 19 Ves. 156; Seaman v. Vawdrey, 16 Ib. 390; Barton v. Downes, Flan. & K. Ir. Rep. 505; Martin v. Cotter, 3 Jo. & Lat. 496. (x) Earl of Cardigan V. Armitage, 2 B. & C. 197. (y) M'Donnell v. M'Kinty, 10 Ir. L. R. 514; Smith v. Lloyd, 9 Ex. 562. (z) Duke of Portland v. Hill, 12 Jur., N. S. 286. (a) Rich d. Lord Cullen v. Johnson, 2 Str. 1142; Curtis v. Daniel, 10 East, 273; 8 Ell. & B. 145; Parrott v. Palmer, 3 Myl. & K. 632. (b) Doe d. Earl Falmouth v. Alderson, 1 Mee. & W. 210; Taylor v. Parry, 1 Scott, N. R. 576. (c) M'Donnell v. M'Kinty, 10 Ir. L. R. 514. |