persons claiming under the copyholder of inheritance (t). Where by agreement, dated 1656, between the lord and certain tenants of customary tenements within a manor, the tenants covenanted that they, their heirs or assigns, would not cut down, sell or dispose of any wood standing or growing, or thereafter to stand or grow, upon certain tenements without the licence of the lord, and the lord covenanted to set out yearly, upon request of the tenants, sufficient for the repairing of their houses, &c., and other necessary uses in and about the said tenements; and that in case any of the tenants, their heirs or assigns, should plant any wood upon the said tenements, it should be lawful for them to cut down, use or dispose of all or any such wood for repairing their houses, &c., or for any other their necessary uses, without disturbance of the lord; it was held that the defendant, who was tenant of one of the customary tenements comprised in the above agreement, was not entitled, without the licence of the lord, to cut down and sell wood which had been planted on the tenement by a tenant since the agreement; and that having so done, the lord might maintain trover for the wood (u). copyholder. If the lord cut down trees where by the custom the Action by copyholder shall have the lops, an action on the case lies against the lord (x). So if a stranger cut down trees upon a copyhold, the copyholder shall have an action upon the case for the loss of shade, fruit, &c., though it was not the custom for him to take the trees (y). (t) Denn d. Joddrell v. Johnson, 10 East, 266; Mardiner v. Elliott, 2 T. R. 746. (u) Blackett v. Lowes, 2 Mau. & S. 494. Interference respecting timber. In the case of waste the lord's remedy is to proceed of Chancery for the forfeiture, and generally the Court of Chancery will not interfere by injunction to restrain a copyholder from committing waste, and to account for the produce of timber(2). Lord Brougham, C., observed, the principle on which Lord Loughborough proceeded in that case has never been considered a sound one, namely, that the only remedy of the lord for waste done by the tenant in cutting down timber, without licence or custom, is at law for the forfeiture, a doctrine laid down by his lordship in a case of timber, but which he clearly applied to mining and other waste as well. Lord Brougham, C., was clearly of opinion that in such a case the remedy in equity by injunction was not excluded (a). Where the remedy for the forfeiture will be an inadequate remedy, as in the instance of a barren spot upon which many valuable timber trees grew, the injunction will be granted; for if the copyhold tenant only forfeited his copyhold by cutting the trees, he might in such a case be a considerable gainer by his own wrongful conduct (b). Where a tenant had cut down timber, and a bill for a discovery was brought against him, a demurrer was allowed, on the ground that his answer might subject him to a forfeiture for waste (c). Where a copyholder for life cut trees, though none were applied to the repair of the premises till several months after, and after ejectment brought as for a forfeiture, and most of them still remained unapplied, but parts of the premises were still out of repair, it is a question for the jury whether they were cut bonâ (z) Dench v. Bampton, 4 Ves. 700. (a) Parratt v. Palmer, 3 My. & K. 339. (b) Richards v. Noble, 3 Mer. 673. (c) Att. Gen. v. Vincent, Bunb. 192; see Lord Uxbridge v. Staveland, 1 Ves. 56. fide for the purpose of repair, and were in a course of application for that purpose; and there being no evidence that they were to be applied to any other purpose, the court refused to set aside a verdict for the defendant (d). If a tenant for life commit waste, the lord may enter notwithstanding a grant in remainder expectant on the death or forfeiture of such tenant for life, and the admission of the remainder-man, the court observing that, if it were otherwise, the tenant for life and reversioner by combining together might strip the inheritance of all the timber (e). contract in ber on copy. On a contract for the sale of lands, described as Case of a partly freehold and partly copyhold, and the timber cluding timthereupon (the latter at a specified valuation), upon a holds. condition that the vendor should not be required to distinguish the freehold land from the copyhold, nòr the respective boundaries thereof, it was held, that upon the particulars and conditions the contract for the land and timber was one contract, and not separate contracts, and that the purchaser was bound to pay for the timber at the valuation, notwithstanding the fact that it might be wholly upon the copyhold land, and therefore subject to the rights of the lord and the restrictions of the custom (f). Where, upon a contract for the sale of an estate, a separate and distinct contract is made for the sale of the timber upon it, the court will not enforce the latter contract, unless the vendor can give the purchaser such possession and dominion over the timber as will entitle him to fell and remove it; but if an entire contract be made for (d) Doe d. Foley v. Wilson, 11 East, 56. (e) Doe d. Folkes and Dean and Chapter of Exeter v. Clements, 2 M. & Selw. 68. (f) Crosse v. Lawrence, 9 Hare, 462; 16 Jur. 142; 21 L. J. Chanc. 889. the sale, both of the estate and the timber (notwithstanding the purchase money is made up of distinct sums for each), the vendor is only bound to make out his title to the land according to the contract, and the title to the land is the title to the timber upon it (g). Turner, V. C., observed, "that the question depended principally, if not wholly, upon the point whether the contract for the purchase of the timber and the purchase of the land were to be considered as separate and distinct contracts, or as constituting together one contract; for undoubtedly, if the contract for the purchase of timber was to be considered as a separate and distinct contract, it would be incumbent upon the vendor to prove either that there was a custom of the manor entitling the vendor to cut timber, or that it was a case in which a grant of a right to cut timber might be presumed in favour of the tenant" (h). Minerals not affected by ment except by express agreement. SECT. VIII. OF RIGHTS RESPECTING MINES. Under the Copyhold Act, 1841, the commutation of enfranchise- manorial rights may by express agreement extend to rights in mines and minerals, but otherwise shall not affect such rights (i). But tenants may grant rights of entry and way and other easements to lords of manors for mining purposes (j). No enfranchisement under the Copyhold Act, 1852, shall extend to or affect the estate or rights of any lord, or tenant in or to any mines, minerals, limestone, lime, clay, stone, gravel, pits or quarries within or under the lands en (g) Crosse v. Lawrence, 9 Hare, 462; 16 Jur. 142; 21 L. J. Chanc. 889. (h) Crosse v. Lawrence, 9 Hare, 462; see Crosse v. Keen, ibid. 469. (i) 4 & 5 Vict. c. 35, ss. 13, 82. (j) Ibid. s. 84. franchised, or within or under any other lands, or any rights of entry, rights of way and search, or other easements of any lord or tenant in, over or under any lands or any powers which in respect of property in the soil might but for such enfranchisement have been exercised for the purpose of enabling the lord or tenant more effectually to search for and work any mines, minerals, pits or quarries, or to carry away any minerals, limestone, lime, stone, clay, gravel or other substances had or gotten therefrom (k). The copyhold commissioners require the steward of the manor to state whether the lord claims the right to mines or minerals, and if so, whether it is proposed to extinguish such right by the enfranchisement. The amount of the consideration to be given in lieu thereof is to be stated. rights of tenants. The lord of a manor may be in the same situation Relative with respect to mines as with respect to trees (7), that lords and is, the property may be in him, but it does not follow that he can enter and take it without consent, which must be acquired by purchase or otherwise (m). word mine The term "minerals," though more frequently ap- Meaning of plied to substances containing metals, in its proper rals. sense includes all fossil bodies or matters dug out of mines; and Dr. Johnson says, that "all metals are minerals, but all minerals are not metals;" and mines, according to Jacob's Law Dictionary, are “quarries or places where anything is digged;" and in the Year Book, 17 Edw. 3, c. 7, " mineræ de pierre" and "de charbon" are spoken of. Beds of stone, which may be (k) 15 & 16 Vict. c. 51, s. 48. (1) See ante, pp. 174-176. (m) Grey v. Duke of Northumberland, 17 Ves. 282; Bourne v. Taylor, 10 East, 189. |