PRECEDENT LVIII. TION OF MINES. 6.-and restore to the usual con dition land which has been used for mining purposes, but is no longer required; tillage, as hereinafter mentioned: AND FURTHER, that the said A. B., his heirs or assigns, will from time to time, at his and their own expense, fill up every pit or shaft which WITH RESERVAshall be sunk or made in the said lands and hereditaments herein before limited to the use of the said C. D., his heirs and assigns, and which the said A. B., his heirs or assigns, shall cease to get coal in, or to use, immediately after every such pit or shaft shall so cease to be wrought and shall be of no further use, and also remove all the said spoilbanks, pit-hills, railroads, tramroads, and other roads, bridges, buildings, engines, machinery, and erections whatsoever, immediately after the use thereof respectively for the purposes aforesaid shall be discontinued (d), and also the materials thereof, and the spoil or rubbish to be made or occasioned thereby, and also will thereupon, at the like expense, trench and level in a proper and workmanlike manner such part or parts of the same lands as shall have been used or occupied by or for any of the purposes aforesaid, or as shall have been damaged or spoiled thereby, and also lay and spread the surface soil and earth on the surface of the same lands, and do everything requisite or proper for making the same lands fit for tillage: AND WILL, as occasion shall require, make, 7.-and erect erect, and keep good and sufficient gates, rails, bars, and gates and fences; posts, with locks and keys, upon and across such railroads, tramroads, and other roads, as aforesaid, in all places where the same shall be necessary or proper, to shut up and inclose any breach, gateway, or opening, which the said A. B., his heirs or assigns, shall from time to time make in any of the fences of the same lands, and will sufficiently fence off on all sides every railroad, tramroad, and other road, pit, shaft (e), spoil-bank, pit-hill, (d) It would be almost impossible to say when this covenant could be enforced; for although the mine owner may discontinue working for many years, the pits may become useful afterwards in sinking to other seams of coal; and, as has been already observed, nonuser for any length of time will not deprive him of his rights. (e) Even in the absence of such a stipulation, it is a duty imposed by the common law on the mine owner, where the surface belongs to PRECEDENT TION OF MINES. 8.-and that landowner may make ways across the ways of the mineowner; bridge, building, and engine, and all the machinery, and works whatsoever, made, laid, or placed by him or them WITH RESERVA in or upon the said lands, or any part thereof, and will maintain the same gates, rails, bars, posts, locks, keys, pales, and fences in good repair, and will provide and will keep shut and fastened the same gates, bars, and rails, in order to prevent, as much as may be, cattle and other animals from trespassing on or straying from the same lands, and also will, whenever any damage shall be done by or to cattle or other animals trespassing on or straying from any of the same lands, in consequence of the said fences, gates, posts, rails, and bars, or any of them, not being made, erected, maintained, shut up, locked, or fastened, make reasonable satisfaction for the same damage to every person injured thereby: AND FURTHER, that it shall be lawful for the said C. D., his heirs and assigns, and at all times, to make, lay, and use, for any purpose or purposes whatsoever, any railroad, tramroad, or other road, over and across any of the railroads, tramroads, or other roads, made, laid, or used in or upon the same lands by the said A. B., his heirs or assigns, by virtue of the right and power hereby limited to him and them as aforesaid, the said C. D., his heirs or assigns, not unnecessarily interrupting or obstructing the railroads, tramroads, or other roads, so to be made, laid, and used by the said A. B., his heirs or assigns, as aforesaid: AND ALSO, that it shall be lawful for the said C. D., his heirs and assigns, at all times to pass and repass, upon or along, over or across, all or any such railroads, tramroads, or other roads, made or laid in or upon the same lands, by virtue of the right and power hereinbefore limited to the use of the said A. B., his heirs and assigns, as well on horseback as on foot, and with or without horses, sheep, cattle, carts, waggons, and carriages, but so that the said A. B., his heirs or assigns, be not thereby unne 9.-and use mine-owner's ways. another, to fence his shafts securely, and he is liable to pay the surface tenant for any damage sustained by his neglect to do so: Williams v. Groncott, 2 N. R. 419. PRECEDENT TION OF MINES. 10. Agreement to refer to arbi tration. cessarily disturbed or interrupted in the use and exercise and enjoyment of any of the rights and powers hereinbefore limited to him and them, and so that the same rail- WITH RESERVAroads, tramroads, and other roads shall be thereby as little damaged as possible (f): PROVIDED ALWAYS, and it is hereby agreed and declared, that if any dispute, question, difference, or controversy shall arise (g) between the said parties to these presents, or their respective heirs or assigns, touching these presents or any clause or thing herein contained, or the construction hereof, or any matter in any way connected with these presents or the operation hereof, or the rights, duties, or liabilities of either party in connection with the premises, then and in every or any such case the matter in difference shall be referred to two arbitrators, or their umpire, pursuant to mining. (f) On a conveyance to a purchaser in fee of a messuage, build- As to restrictions ings, homestead, and lands, the coal mines were excepted, with liberty on rights of to enter and sink pits for getting the coal, and to erect engines, and make drains, &c., for working the coal, except as to such lands as lay within 150 yards of the messuage and, buildings, and, except any homestead. On the construction of this conveyance, it was held that the vendor had reserved to himself the right to dig coals under the messuage, buildings, and homesteads, and within 150 yards of the same respectively; but that he had not the right to sink pits, erect engines, or make drains within 150 yards of the messuage or buildings, or within the homestead: Bowler v. Wolley, 15 East, 444. Questions of this nature, for the most part, may, and ought to be avoided by care on the part of the draftsman; but questions of fact sometimes arise, which can only be settled by extrinsic evidence. As, for instance, what constitutes a garden: Gilbert v. Tomison, 4 Dowl. & Ry. 222. See, further, with respect to the extent and duration of a grant of powers of mining, Hodgson v. Field, 7 East, 613; S. C., 3 Smith, 538. And with respect to the usual parliamentary restrictions on mining operations in the neighbourhood of canals, see Dudley Canal Navigation Company v. Grazebrook, 1 B. & Ad. 59; and the cases there cited. (9) Arbitration clauses in a deed, though very commonly employed, Arbitration were seldom of any practical benefit; and since the passing of the clauses unneces Common Law Procedure Act, 1854, their utility has greatly dimi- sary. nished. A short clause, such as that in the text, referring to the Act, will answer every purpose. PRECEDENT WITH RESERVA- and so as with regard to the mode and consequences of the reference, and in all other respects, to conform to the provisions in that behalf contained in the Common Law Procedure Act, 1854, or any then subsisting statutory modification thereof; And upon every or any such reference the arbitrators and umpire shall respectively have power to examine the parties and witnesses upon oath, and either to fix, settle, and determine the amount of costs of the reference and award respectively, or incidental thereto, to be paid by both parties or by either party, or to direct the same to be taxed either as between solicitor and client, or as between party and party, or otherwise, and to direct and award when, and by and to whom, such costs shall be paid [Add covenants for title, see supra, p. 208]. IN WITNESS, &c. (ADD a Schedule of Parcels if necessary). PRECEDENT IN CONSIDERA TION OF A RENTCHARGE. 1. Parties. 2. Witnesseth: -consideration, -appointment. LIX. CONVEYANCE by APPOINTMENT and GRANT of a PIECE THIS INDENTURE, made, &c., between A. B., of, &c. [vendor], of the one part; and C. D., of, &c. [purchaser], of the other part: WITNESSETH, that, in consideration of the yearly rentcharge hereinafter limited, and of the covenants by the said C. D. hereinafter contained, he the said A. B., in exercise of a power contained in an indenture dated &c., and expressed to be made between [parties], and of every or any other power enabling him in this behalf, doth hereby direct and appoint that the parcel of land (a) Sce the notes to Precedent LVIII., supra, pp. 423 et seq. PRECEDENT IN CONSIDERA- and hereditaments hereinafter expressed to be hereby granted, (but subject to the reservation hereinafter specified,) shall henceforth remain and be To the uses, and subject to the charge and powers hereinafter limited and contained; AND THIS INDENTURE ALSO WIT- 3. Witnesseth NESSETH, that, for the considerations aforesaid, he secondly: the said A. B. doth hereby grant Unto the said C. D. -grant, and his heirs, ALL THAT parcel of land, &c. [Parcels, parcels. supra, p. 219-General Words, supra, p. 208, omitting mines and minerals]; BUT SAVE NEVERTHELESS AND EX- 4. Reservation of minerals, &c. CEPT, out of the direction and appointment herein before contained, and out of this present grant, all mines and minerals (b) lying and being within and under the said land and hereditaments hereinbefore expressed to be hereby appointed and granted, with free liberty and power for the said A. B., his appointees, heirs, and assigns, to take all usual, necessary, or convenient means for working, getting, laying up, dressing, making mer chantable and taking away the said mines and minerals, and also to make and repair tunnels and sewers, and to lay and repair pipes for conveying water to and from any manufactory or other building, or for any other purpose whatsoever (paying and making reasonable compensation for all damages to be incurred thereby); TO HAVE AND TO 5. Habendum : HOLD all the said premises hereinbefore expressed to be hereby granted, subject to the exception, liberty, and power aforesaid, UNTO the said C. D. and his heirs, To the uses and subject to the charge and powers hereinafter limited and contained (c); AND IT IS HEREBY DECLARED, (b) These words apply not only to metalliferous ores, but to substances, whether metalliferous or not, dug out of the earth by means of subterraneous boring or working; they do not apply to stone quarries, gravel pits, or the like: Darvill v. Roper, 3 Drew. 294: but see Earl of Rosse v. Wainman, 14 M. & W. 859. (c) Sometimes only the mines and minerals are excepted, the mine owner's powers over the surface being limited to him in the following manner: "TO THE USE AND INTENT that the said A. B., his "Mines and minerals," meaning of. |