CHAPTER III. MINING SETTS AND LEASES. I. GENERAL PRACTICAL OBSERVATIONS. II. GRANT OR LICENCE OF MINING SETTS. 1. As to the date, parties, recitals, and testatuin clause. 3. Habendum. 4. Reddendum. 5. Covenants. III. MINING LEASES. IV. SETTS AND LEASES OF COAL MINES AND QUARRIES. I. GENERAL PRACTICAL OBSERVATIONS. Right of working mines, how usually conferred.]-The right of working mines and quarries is granted, either by a licence conferring that privilege, or by an actual lease of the premises. A licence to mine is distinguishable from a lease in many essential particulars. The former, being only an incorporeal hereditament, confers a mere right, and not necessarily a right exclusive of similar privileges in other parties, and in all cases only conferring an actual right of property in the minerals after they have been severed from the freehold and taken into the possession of the party (Doe d. Hanley v. Wood, 2 Barn. & Ald. 274); whereas a lease passes an actual interest in the thing demised, the right to which attaches even before the substance is extracted or taken. Still, a mere licence to search is a very usual, if not the most usual, mode of grant in the greater portion of our mining districts, which, although it does confer an exclusive right, nevertheless confers such an interest in lands as cannot be revoked or countermanded by the grantor, unless the instrument granting such licence contains an express stipulation to that effect: (Liggins v. Ings, 5 Moo. & Pa. 712.) Still, the privilege which this licence confers to the grantee does not deprive the grantor, or persons claiming under him, from exercising similar rights within the limits of his sett, provided they do not interfere with the workings of the grantee: (Cheetham v. Williamson, 4 East, 469.) Licence may be so worded as to confer an exclusive privilege.] -But although a licence to search does not necessarily confer an exclusive privilege, it may nevertheless be so worded as to convey that right, to the exclusion of every other person, by simply inserting in the granting clause of the instrument that the grantee shall have this exclusive liberty. Still, the grant of this exclusive right ought to be directly expressed in the granting clause; for although, if the description should fail in this respect, the intention might still be gathered from other parts, or from the general scope of the instrument, it would seem that at law the right to work would not be exclusive, but the instrument would merely operate as a written contract for an exclusive right, which in equity, and in equity only, would be binding on the grantor and those claiming under him; yet, it seems that if this right could be considered as included in a covenant entered into with the grantor, or if any particular recitals or expressions should suffice to constitute a legal covenant, then such a contract would, even at law, be held to run with the land, and bind the assignees as to any of its profits. How licence may be granted.]—A licence is granted, either by an agreement under hand only, or by an indenture; in the former case, an agreement stamp will be sufficient to cover it; but in the latter, it must be stamped as a deed. General outline of usual form of licence.]-The general form of licence, whether it be by agreement or by deed, authorizes the grantee to search for minerals within certain specified limits for some certain term, varying from one to twenty-one years or upwards, and to raise, prepare, and sell all such minerals as shall be so raised therefrom, and to adopt all such means and contrivances as may be necessary for carrying out all the above-mentioned objects; the grantee rendering to the grantor a rent either in money or in kind, or both, and undertaking to prosecute the search with diligence; to render a due account of all ores raised, and to pay the reserved dues in respect of the same; and in case of failure on the part of the grantee to observe the terms and conditions of the sett, that the same shall become absolutely void and forfeited: (see the form of an agreement for a sett, 1 Con. Prec., Part III., Section I., No. VIII., pp. 464, 465, 2nd edit.) As to quarries.]-A licence to work quarries, of every kind or description, is penned in much the same way as a licence to search for ores and minerals, but in licences of the former kind it is more usual to reserve a certain annual rent in money, which the grantee covenants to pay; in order, therefore, to carry out the latter object, it becomes necessary that the instrument should be a deed. It is also usual to insert a power of distress for recovering any arrears of rent that may accrue due during the term, concluding with the usual proviso empowering the grantor to determine the term in case of nonpayment of rent, or for breach of covenant by the grantee: (see the form 1 Con. Prec., Part III., Section II., No. I., pp. 572, 574, 2nd edit.) Advantages of a deed over a mere agreement.]—In all mining setts, unless the licence is intended merely as a trial, to see what the land is likely to produce, and with a view to a more formal instrument in case the search should prove satisfactory, a deed under seal, whereby all the parties may become mutually bound as well at law as in equity, will be preferable to a mere agreement, the essential parts of which can be only enforced through the medium of a court of equity. Where the licence is entered into by a steward or agent.]— If the licence be entered into by the steward or agent of the grantor, it should be expressly stated that he enters into such agreement for and on behalf of his principal, and the grantee, before he binds himself by entering into any such agreement, should ascertain that such steward or agent is duly authorized by writing to make such grant, for otherwise the Statute of Frauds (29 Car. 2, c. 3, ss. 1, 2) disables him from creating or assigning any legal estate or interest for any term whatever. And notwithstanding such steward or agent, by signing an agreement in the name of his principal, may pass an equitable interest in rights of this description, it seems that this can only be done where such an authority can be shown by usage, or the recognition of former acts of a similar nature; and in all such cases it is essential that he should strictly conform to the usages which have been established in the exercise of his authority, and he will not be allowed to bind his principal by the adoption of a mode of transacting business contrary to the previous regulation of an established custom which has been acquiesced in by the latter. Thus, as a learned writer on the subject very aptly remarks (Bainbridge on Mines, 92), "It is presumed the introduction of unusual stipulations with respect to the operations of mining, or the agreement for a demise, or a licence to work for an unwarrantable period of time, will not be binding on the owner without his consent or recognition. But agreements of this kind may of course bind the other parties, and pro tanto the principal. And in conclusion, it may be submitted that when a mining agent signs an instrument, which in its language amounts to a demise or lease, but which necessarily fails in conferring a legal interest for want of a written authority of the agent, such an instrument will be supported as a sufficient agreement to bind the principal. In order, however, to obtain equitable assistance, there must always be a valuable consideration; but the render of dues, or an agreement to make a money payment, will be amply sufficient for this purpose; and that whether it does or does not appear on the face of the agreement." IL GRANT OR LICENCE OF MINING SETTS. 1. As to the date, parties, recitals, and testatum clause. 3. Habendum. 4. Reddendum. 5. Covenants. 6. Provisoes. 1. As to the Date, Parties, Recitals, and Testatum Clause. As to the date and parties.]—When a mining sett or licence to search for minerals is granted by deed, the instrument commences with the date and names of the parties, in the same manner as in an ordinary lease; in like manner, the party having the legal estate must be the granting party, as must all other parties having an interest in the property, who would be the necessary concurring or consenting parties in case an actual lease had to be granted. Recitals.]-Recitals are as unfrequent in mining setts as in ordinary leases, being only used for the purpose of showing the relation of the granting parties, or the authority under which the grant is made, as, under similar circumstances, would be necessary in a lease. Testatum.]-The consideration for which the sett is granted must, for the reasons we have previously stated (ante, p. 508), be accurately set out in the testatum clause. The usual operative words are "give and grant," by which the grantor confers upon the grantee, his partners, co-adventurers, executors, administrators and assigns, full and free liberty, licence, power and authority to dig, work, mine and search for all the ores and minerals (specifying them) in, under and throughout the parcels (which should be then particularly described, and their boundary correctly defined), and to raise all such ores as shall be found on the premises, and then and there to dress and render them fit for sale, and carry off the same, and within the limits of the sett to make adits and pits, construct water-courses, and erect such buildings, engines and machinery, as may be considered necessary for the effectual exercise of such licence: (see the form 1 Con. Prec., Part III., Section IV., No. II.. clause 2, p. 576, 2nd edit.) 2. Exceptions and Reservations. Usual exceptions and reservations.]—The usual exceptions or reservations by the grantor are, the right of erecting engines and driving adits within the limits of the sett, but so, nevertheless, as not to impede the exercise of the grantee's rights within such limits (see the form 1 Con. Prec., Part III., Section II., No. III., clause 3, p. 588, 2nd edit.; ib., No. IV., clause 6, p. 602); but it seems that this exception, in reality, confers no greater right than the grantor would otherwise retain: (as to which see ante, p. 538, and the authorities there referred to.) Where the licence is restricted.]—The right of mining is frequently restricted to some particular kind of ores, or to metallic ores or minerals only, and not allowed to extend to coal, slate or limestone; and sometimes vice versâ. Whenever this is intended, it will be proper to make an express exception to the lessor of whatever is to be excepted out of the sett (see a form of this description, 1 Con. Prec., Part III., Section II., No. V., clause E., in notis, p. 612.) |