not to commit any manner of waste, damage or injury other than such as should be reasonably necessary or unavoidable in or upon any of the said lands therein before described, under or by virtue of the powers therein before contained. The indenture also contained a covenant by the Defendants at all times during the continuance of the said term to allow to the parties of the first part, their heirs or assigns, "or other the occupier or occupiers for the time being of Brymbo Hall aforesaid," such coal as they should reasonably require, at certain specified rates of payment.

The demesne lands and pleasure-grounds attached to the mansion-house, and coloured red in the plan, comprised about four acres. The lands coloured yellow in the plan consisted of ornamental grounds surrounding the lands coloured red.

By virtue of this demise the Defendants assumed a right to excavate under the lands coloured red as well as under those coloured yellow, and proceeded with such excavation until the mansion and offices began to give way.

The Plaintiffs thereupon filed their bill for an injunction to restrain the Defendants from excavating under the lands coloured red, or under any portion of the lands coloured yellow supporting or assisting in the support of the lands coloured red; and for an order upon the Defendants to fill up all the excavations already made by them under the lands coloured red.

[697] The cause now came on to be heard upon motion for a decree.

Mr. Rolt, Q.C., Mr. James, Q.C., and Mr. Little, for the Plaintiffs, contended, first, that the mines and minerals under the lands coloured red did not pass by the lease; secondly, that, if they did pass by the lease, they were not authorised to be excavated or gotten; and thirdly, that, in any event, the Defendants were not entitled to excavate or to work any mines or minerals under any lands mentioned in the lease, so as to injure any part of the mansion and offices.

The law was clear that, of common right, and independently of any evidence to shew how the surface and the minerals have come into different hands, the owner of the surface is entitled to support from the subjacent strata; and if the owner of the minerals remove them, it is his duty to leave sufficient support for the surface in its natural state: Humphries v. Brogden (12 Q. B. 739); and this common law right is not affected by the special contract, but the Plaintiffs are entitled to the benefit of both Caledonian Railway Company v. Sprot (2 Macq. 449); where land had been granted to a railway company, reserving the minerals to the grantor, and it was held that the latter was not entitled to work even under his own adjoining lands in any manner calculated to endanger the railway. See also The Caledonian Railway Company v. Lord Belhaven (3 Jur. (N. S.) 573), where the same rule was followed.

The Vice-Chancellor held, upon the first point, that the mines and minerals under the land coloured red were included in and passed by the lease.

Mr. Willcock, Q.C., Mr. Cairns, Q.C., Mr. Kenyon and Mr. Eddis, for the Defendants, contended that, if the first [698] point was decided in their favour, the second must be so. If the mines and minerals under the land coloured red were included in and passed by the lease, it could not reasonably be contended that the Defendants were not authorised to excavate and get them. Another construction must be put upon the words "except in or upon any demesne lands, &c., coloured red," which, in fact, were intended merely to prevent the opening of pits, and the digging and sinking of shafts and levels in or upon any such demesne lands, and not to prevent excavating below them.

Then, as to the right to support from the subjacent strata, it was clear that, whatever may be the common law rights in the absence of special contract, it is open to parties, by special contract, to qualify and even to waive their prima facie right to support, and to deprive themselves of their right to damages or to protection in respect of injury, however great, cccasioned by the working of the minerals below the surface: Rowbotham v. Wilson (25 Law. J. (Q. B.) 362).

The present case was distinguishable from Harris v. Ryding (5 M. & W. 60), as well as from Smart v. Morton (5 Ell. & Bl. 30). Here the mines were granted, the surface was reserved. There, conversely, the surface was granted and the mines were reserved. In those cases, therefore, it might well be held that the grantee of the surface had a prima facie right to support, from which nothing in the grant could authorise the Defendant in so working his mines as in any way to derogate.

The Vice-Chancellor intimated to Mr. Rolt that he was prepared, without hearing a reply, to make the decree set out below; but if he required more, he must hear him.

[699] Mr. Rolt, Q.C., would be satisfied with the decree proposed.

VICE-CHANCELLOR Sir W. PAGE WOOD. The question in this case resolves itself into the construction to be put upon the indenture; and upon the terms of the indenture it is clear that the mines and minerals under the lands coloured red were included in and did pass by the lease; but that the Defendants were not authorised by that indenture to work them, or to execute any works upon those lands, or to search for any coal or mineral therein. [His Honor shewed this from the words of the indenture and from the evidence as to the conduct of the parties; and proceeded :]

As to the rest of the lands comprised in the indenture, the common law right is now clear from the decision of the Court of Queen's Bench in Smart v. Morton (5 Ell. & Bl. 30)—although that did not carry the law further than the decision of the Court of Exchequer in Harris v. Ryding (5 M. & W. 60). In Smart v. Morton there was a plea that, in the deed by which the surface was granted to the parties through whom the Plaintiff claimed, there was an express reservation of the mines, with liberty to work those mines and drive drifts, and use any other ways for the better and more commodious working and winning the same; and the grantor covenanted to pay treble damages for such loss or damage as should be sustained by the grantee; that it was in the necessary and needful working of the mines that the Defendant had caused the damages complained of, and that he was ready to pay damages according to the covenant. But, on demurrer, the Court held that the plea was bad; for the occupier of the surface had a primâ facie right to the sup-[700]-port of the subjacent strata, and the deed did not authorise any working in derogation of that right.

And so, conversely, where the minerals are demised and the surface is retained by the lessor, there arises a prima facie inference at common law upon every demise of minerals or other subjacent strata that the lessor is demising them in such a manner as is consistent with the retention by himself, of his own right to support, as in the case put in the judgment of the House of Lords (2 Macq. 449) of a demise of the upper part of a house. If I demise to you the lower story of a house, and reserve to myself an upper story, the presumption is that I do not part with my right to be supported by the story I demise.

It is true there may be an express stipulation, as there was in Rowbotham v. Wilson (25 Law J. (Q. B.) 362), by which the owner of the surface waives his right to support, and agrees to allow the mines to be so worked as to destroy his property; but in the absence of express words, shewing distinctly that he has waived or qualified his right, the presumption is that what he retains is to be enjoyed by him modo et formâ as it was before, and with that natural support which it possessed before he parted with the subjacent strata; and so it would be in the case of a watercourse or other easement of a like nature.

If any evidence were required in aid of this presumption, no deed ever contained clearer indication than the present that the property was intended to be occupied and enjoyed as before the lease; for here there is an express covenant on the part of the Defendants to supply the Plaintiffs "or other the occupier or occupiers for the time being of Brymbo Hall," the mansion in question, with coal. But no such evidence is required.

[701] Declare that the Defendants are not entitled, under the lease, to work any coal or mineral, or execute any works upon the portion of land marked red upon the plan attached to the lease, or to search for any coal or mineral therein; and order an injunction accordingly.

Declare that the Plaintiffs are entitled to have a sufficient support for upholding the mansion-house called Brymbo Hall and the offices and buildings upon the said portion of land coloured red; and that the Defendants are not entitled to remove any of the earth or soil necessary for such support from any part of the demised premises.

Inquire whether any and what part of the lands comprised in the indenture of

demise, other than the portion of land coloured red, affords such support to the said mansion-house, offices and buildings as to render it necessary that the same or any or what part thereof should be left undisturbed for the purpose of such support.

Liberty for Plaintiffs to bring any such action as they may be advised in respect of any past working of the mines.

Defendants to permit Plaintiffs, at all reasonable times, to have access to the mines for the purpose of making such supports as may be necessary for upholding the mansion.

[701] HICKS v. HASTINGS. June 1, 2, July 10, 13, 1857.
Boundaries. Confusion of.

Testatrix, by her will, appointed the manor of W. (over which she had an equitable power of appointment) to uses, under which the Plaintiff became entitled as tenant in tail in possession, and devised her residuary real estate to trustees upon trust to sell. The trustees sold (inter alia) a field, part of which was shewn by the abstract to be parcel of the manor, and procured the legal estate in the whole to be conveyed to the purchaser. Held, that, notwithstanding the fault of the confusion lay with the party through whom the Plaintiff claimed, the Plaintiff was not precluded from establishing in this Court a claim to his portion of the land, and to a proportional part of the rents from the time when he came of age. And an inquiry was directed in what part of the field the Plaintiff's portion was situate.

Elizabeth Barker, by her will, in 1807, appointed the manor of Watton (which in 1796 had been limited to the use of Mason and Grigson and their heirs, upon trust, as she should by will appoint) to uses, under which, in 1828, the Plaintiff, then an infant, became entitled as tenant in tail in possession; and she devised her residuary real estate to Harvey, Hebgin and Mason, and their heirs, upon trust to sell.

[702] In 1814 Harvey, Hebgin and Mason proceeded to sell the residuary real estate of the testatrix, together with other lands not comprised in the residuary devise, in lots, Lot 11 being described in the particulars of sale as containing 6a. 1r. 24p., "whereof 2a. 3r. are freehold, and the residue leasehold, for the term of 900 years, commencing 20th March 1567, at a peppercorn rent." Smith Hastings became the purchaser of Lot 11, and took a conveyance accordingly, Grigson and Mason joining in such conveyance so as to pass their legal estate, if any, in the premises.

Smith Hastings afterwards sold and conveyed a portion of the property to the Defendant, Secker, and by his will devised the remainder to his children, the infant Defendants, and appointed his wife, the Defendant, Sarah Hastings, his executrix. He died in 1849.

The Plaintiff attained the age of twenty-one in the same year; after which he executed a disentailing deed, vesting the manor in himself in fee.

The bill averred that the 2a. 3r., described in the particulars of sale as freehold, were, in fact, parcel of the manor, and did not pass under the residuary devise; and that this circumstance appeared by the abstract delivered to Hastings before he completed his purchase; and prayed that an account might be taken of the rents of the 2a. 3r. received by him and by the Defendants, Sarah Hastings and Secker, since the 1st of June 1831, when the Plaintiff became entitled to the manor as tenant in tail in possession; that the Defendants might be decreed to convey the 2a. 3r. to the Plaintiff; and that a commission might issue, or directions be given for ascertaining and settling the boundaries of the 2a. 3r., or, if such boundaries could not be ascertained, that a quantity of land of equal value might be set out of the inclosure forming Lot 11.

[703] Evidence was adduced on the part of the Plaintiffs to shew that the 2a. 3r. was originally copyhold, but in 1793 became extinguished in and formed parcel of the manor.

Mr. Rolt, Q.C., and Mr. Rowcliffe, for the Plaintiff, contended that the evidence shewed that the 2a. 3r. was parcel of the manor as early as 1793; and that Smith

Hastings had taken a conveyance with notice of that circumstance. That being so, there must be a decree as in Hicks v. Sallitt (3 De G. M. & G. 792)—a suit instituted by the same Plaintiff in reference to the same devise, and which ought to have set at rest all questions arising under it for an account and reconveyance; or, if the boundaries cannot be ascertained, the Plaintiff should have an equivalent: The Duke of Leeds v. The Earl of Strafford (4 Ves. 180), The Attorney-General v. Fullerton (2 Ves. & Bea. 263), and The Attorney-General v. Stephens (1 K. & J. 724, and cases there cited).

Mr. Cairns, Q.C., and Mr. Toller, for the Defendant, Sarah Hastings, and Mr. W. W. Cooper, for the infant Defendants, contended that the evidence did not shew that the 2a. 3r. ever formed part of the manor; and, even if it did, they disputed the Plaintiff's right to a decree, on the ground that the confusion of the 2a. 3r. with the rest of the land sold by the trustees in Lot 11 was owing to the negligence of the testatrix through whom the Plaintiff claimed. The Court would leave the Plaintiff to his remedy, if he was entitled to any, at law.

Mr. Amphlett, for the Defendant Secker.

Mr. Rolt, Q.C., in reply.

VICE-CHANCELLOR. The peculiarity here is that the [704] determination of the question in your favour would not bind the party entitled in remainder expectant upon the determination of the term of 1567.

Mr. Rolt. That circumstance cannot deprive the devisees of the right in the interim to have the question determined as between themselves and those claiming under them.

Judgment reserved.

July 13. VICE-CHANCELLOR Sir W. PAGE WOOD. I cannot do better than to preface my judgment in this case by repeating the observations of the Lord Chancellor in the cause of Hicks v. Sallitt (3 De G. M. & G. 792) as to the discretion which the Court is called upon to exercise in a case where, as here, it is almost impossible not to have a strong leaning in favour of Defendants who are in possession of property purchased so long ago: "Parties filling such a position ought not certainly to be disturbed, unless a clear case be made out against them; but when such a case is made out it is the duty of the Court to decide in favour of the Plaintiff without displeasure against him for asserting what the result shews to be his legal right."

As to the merits of the particular point now urged there can be no reasonable ground for doubt. The Plaintiff shews that the 2a. 3r.-the piece of land now in question was clearly parcel of the manor in 1793. He makes out a clear prima facie case that his land was conveyed to Smith Hastings, through whom the Defendants claim; and that Hastings took his conveyance with full notice on the title-[705]-deeds of the limitations under which the Plaintiff has become entitled.

To rebut that prima facie case, the Defendants seek to raise a doubt as to the identity of the roads by which the property is described as bounded.

[His Honour stated the evidence on this subject, and held that this doubt was unfounded.]

It was argued that I ought not to direct a reconveyance as prayed by the bill, but to leave the Plaintiff to his remedy at law. Now, the course at law is this. The Plaintiff points out the land, and the sheriff delivers possession of the land so pointed out; and if he delivers too much the Court sets that right by summary relief; but in a case like the present the Court could not afford such summary relief. Consequently, to leave the parties to their remedy at law would, in this case, be to deprive the Plaintiff of any remedy.

This is not the ordinary case of confusion of boundaries. The testatrix having 6a. 1r. 24p., which is partly freehold, partly leasehold, devises the freehold part to the Plaintiff, and the leasehold part to trustees for sale. The trustees undertake to discharge that trust and proceed to sell. It then became the duty of the trustees to see that the leasehold part, and no more, was comprised in the conveyance to the purchaser, and the duty of the purchaser to do the like. It is true that the testatrix was the party to blame for the confusion of the freehold land improperly sold by the trustees with the leasehold. But in reference to that argument, Clarke v. Yonge (5 Beav. 523), which was referred to in [706] Hicks v. Sallitt, appears to me to have a

material bearing. There the Plaintiffs were entitled to an advowson, and were also entitled as impropriators, although ignorant of their rights in that respect, to a portion of the corn tithes. The Defendant, as rector of the parish, was also entitled to a portion of the corn tithes, but from the time of his collation he had received the whole. In this state of things an award was made, and afterwards confirmed, by which all the tithes were commuted for a gross sum, the whole of which was to be paid to the rector and his successors. To this award the Plaintiffs as patrons had assented through their neglect the whole became mixed together and confused; and accordingly, when they came to file their bill, seeking to establish a claim to their proportion of the rent-charge, it was contended that they were concluded by the award to which they, as owners of the advowson, had consented. But Lord Langdale did not take that view of the case. After holding, upon the preliminary question, that the Plaintiffs were entitled to a portion of the corn tithes, and that the portion to which they were so entitled was a moiety, he said this: "The case is attended with considerable difficulty; but on the best consideration which I have been able to give to the Act, I think that the Plaintiffs are not precluded from seeking to establish in this Court a claim to a portion of the rent-charge commensurate with the proportionate value of their portion of tithes, which was a part of the consideration for which the rent-charge was given." (5 Beav. 538.)

There, the property in question being a mere money charge, the decree was comparatively easy to frame. Here I can only deal with the case by way of inquiry.

I must declare that the Plaintiff is entitled to the 2a. 3r. [707] described as freehold in the particulars of sale, and constituting part of Lot 11; there will then be a decree for the Plaintiff, as in Hicks v. Sallitt, comprising a direction that all the Defendants join in the conveyance of the property in question to the Plaintiff, and a declaration that the Plaintiff is entitled to the rents and profits received by the Defendants, or any of them, or by Smith Hastings, deceased, since the 1st of June 1831, in respect of the 2a. 3r. Then there will be an inquiry in what part of the 6a. 1r. 24p. comprised in Lot 11 the 2a. 3r. are situate; and who has been in possession of the same; and a declaration that if it shall appear that the 6a. Ir. 24p. have been held at one rent, the Plaintiff is entitled to a proportional part in respect of the 2a. 3r. as against the Defendant, Sarah Hastings, reserving the question, as between her and Secker, of Secker's liability.

My difficulty as to Secker is this, that I am not sure that what was conveyed to him by Smith Hastings comprised any part of the 2a. 3r. in question; but I am clear that the conveyance to Smith Hastings comprised the whole.

[708] JARROLD v. HOULSTON. June 30, July 1, 2, 9, 1857.

[S. C. 3 Jur. (N. S.) 1051. See Chatterton v. Cave, 1875-78, L. R. 10 C. P. 580; 2 C. P. D. 42; 3 App. Cas. 483.]

Copyright. Piracy. Injunction where Part only Objectionable.

If any person by pains and labour collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to those questions, and explanations of those phenomena, whether such explanations and answers are furnished by his own recollection of his former general reading or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers, under certain heads and in a scientific form, is sufficient to constitute an original work, of which the copyright will be protected.

But another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it.

In determining whether an injunction should be ordered, the question, where the matter of the Plaintiff's work is not original, is, how far an unfair or undue use has been made of the work.