to work them, was extinguished; though there is no evidence of the exercise of it for more than a century (p). The right to mines has been often reserved and excepted upon the grant of long terms of years, but the separation of this right from the ownership of the surface happens also where the surface has been alienated in fee simple, and it is in many places of ancient origin. Where the mines have been worked, or where the working has been long suspended, the existence of the separate right is not unfrequently forgotten by the owners of the surface, who convey the whole land from time to time without adverting to the fact that the mines cannot pass by the conveyance. Accordingly, instances have been known where an apparently good title has been shown to the land, inclusive of the mines, yet it has subsequently been discovered that the title to the mines was vested in an adverse claimant (q). In an action of trespass for breaking and entering the plaintiff's closes, and digging minerals therein, the pleas were, 1st, not possessed; 2nd, justification of the trespasses by the defendant as assignee of a lease of the minerals, and of the right to work them, for ninety-nine years, granted by the owner of the fee in 1821. The replication was that the right to make an entry did not first accrue to the defendant or those through whom he claimed, within twenty years next before the entry of the defendant, and that the defendant's right was therefore barred by the stat. 3 & 4 Will. 4, c. 27. Issue was taken on that replication. It appeared that in 1821, while B. was in possession as tenant from year to year of a farm, including the close in question, the owner of the fee demised by in (p) Per Lord Eldon, C., Seaman v. Vawdrey, 16 Ves. 392. denture the coal lying beneath the farm to B. and P. for ninety-nine years, with liberty to work the same. The interest of B. and P. under that demise became vested by various mesne assignments in the defendant, who, in 1847 (during the term), worked the coal. Up to 1847 no coal had ever been worked under the demise. It was held, 1st, that B. must be presumed to have been in possession of the minerals as well as of the surface when the lease for ninety-nine years was granted, which thus became a lease in possession and not a mere interesse termini; and that this possession of the minerals continued and passed to the defendant without any actual entry under the lease of 1821; 2nd. That the possession of B. accrued for the benefit of himself and P.; 3rd. That the second plea, confessing that the plaintiff was de facto in possession when the trespasses were committed, would be satisfied by a dispossession of the lessees within twenty years before the defendant entered to commit the trespasses in question; and that the defendant might rely on the right of entry which accrued on such dispossession, and not upon a right of entry accruing as upon a grant of an interesse termini in 1821 (r). Lord Campbell, C. J., said, “the foundation of our opinion is, that at the time when the lease was executed, and the term granted by it commenced, B., one of the lessees, was tenant of the farm under which the minerals demised lie. Being in possession of the surface, in point of law he was in possession of the minerals. He had no right to work the minerals. If he had done so it would have been waste, but the lessor could not have sued him in trespass; and if strangers had worked the minerals, even without breaking the surface, B. might have maintained tres (r) Keyse v. Powell, 22 Law J. Q. B. 305. K This pass against him. The surface and minerals may be dissevered in title and become separate tenements, as appears abundantly from the cases cited (s). But the presumption is to the contrary, and here there is nothing to rebut the presumption down to the time when the lease of the minerals was granted. When B. became tenant of the surface the minerals belonged to the lessor, and they cannot be considered as excepted from the demise any more than timber trees. doctrine has never been questioned, unless with regard to minerals under a copyhold: tenement, as between the tenant and lord: and it was held (t) that, although the property in the minerals be in the lord, the possession of them is in the tenant; and that the tenant may maintain trespass against the owner of an adjoining colliery for breaking and entering the subsoil and taking the minerals. B. having been in possession of the minerals as tenant from year to year, when the lease of them to him and P. was granted, must be considered as continuing in possession, his estate being enlarged by the lease. Being already in possession there could be no necessity for any entry to put him in possession when the lease was executed; he was then in a situation to have taken a release in fee of the minerals, or any intermediate estate between the fee simple and a tenancy from year to year. A lease for ninety-nine years must for this purpose operate in the same manner as a release for that term" (u). It was held by Lord Hardwiche, C., that where the crown has only barely reserved royal mines, it cannot grant a licence to any person to come upon another man's estate and work them (a). Lord Eldon, C., (s) Curtis v. Daniel, 10 East, 273, Humphries v. Brogden, 12 Q. B. 739. (t) Lewis v. Branthwaite, 2 B. & Ad. 437, ante, p. 182. (u) Keyse v. Powell, 22 Law J. Q. B. 309, 310. (x) Lyddall v. Weston, 2 Atk. 20. said, "that position is liable to considerable doubt, as being inconsistent with the resolutions of the judges in the case of mines" (y). SECT. IX. OF THE TENANTS' RIGHT TO INSPECT COURT ROLLs. The court rolls of a manor are the property of the lord (2), but the copyholder has an interest in them as well as the lord; they contain evidence of his title, and the lord is not justified in denying a copyholder access to them (a). With reference to the tenant, the lord is a trustee or guardian merely of the manorial muniments, and cannot lock up from his cestui que trust evidence which would tend to increase his own rights (b). It does not appear to be necessary that a person should be actually a copyhold tenant in order to be entitled to inspect the court rolls, but that it will be sufficient if he has a primâ facie title to a copyhold (c), or is otherwise interested therein (d), as in the case of a devisee of a rent-charge on a copyhold (e). For the purposes of the Copyhold Act, 1852, power is given to enforce the production of any court rolls or copies of court rolls in the possession or power of any lord or tenant, or of the steward of any manor (ƒ). Where the tenant of a manor demands leave to inspect the court rolls and is refused, the Court of (y) Plowden, 310, see p. 336; Seaman v. Vawdrey, 16 Ves. 393. (2) 8 Dowl. 611. (a) Stacey's case, Latch. 182. (b) 2 Watk. Cop. 37, 4th ed. n. (c) Rex v. Lucas, 10 East, 235; Rex v. Tower, 4 Mau. & S. 162. (d) Ex parte Hutt, 7 Dowl. P. C. 690. (e) Ex parte Barnes, 2 Dowl. N. S. 20. (f) 15 & 16 Vict. c. 51, s. 5; see post, p. 231. Mandamus for inspection. Queen's Bench will grant a mandamus to compel it (g). It is not necessary that all or a majority of the persons interested in copyhold property should join in an application to inspect the rolls of the manor, as any of the persons interested in the property are entitled to inspect (h). A claimant to copyhold property, who comes to the court for a mandamus to the steward of the manor to compel him to grant inspection of the court rolls, and admit the claimant as a copyholder of the manor to. enable him to try his right to the property he claims, must, in the affidavit used in moving for the rule, either swear positively that he is entitled to the property claimed, or set out his title or good grounds for his belief that he is entitled to the property. It is not sufficient to swear that he "verily believes" that he is entitled to the property in question (¿). Where a copyhold tenant was forbid by the lord to cut underwood upon the copyhold without the lord's licence, the court granted a mandamus to the lord to permit him to inspect the court rolls so far as related to the cutting of underwood, after applications to and refusal by the lord, although there was not any suit depending (k). In an action by one copyholder against another for an encroachment on the common, an order was made on the steward to permit the plaintiff to inspect and take copies of the original minutes of two manor courts, and to produce all books and court rolls relating to the defendant's title at the trial (). An order upon the lord of a manor to allow the (g) Rex v. Shelley, 3 T. R. 141; see post, pp. 225, 227. (1) Folkard v. Hemet, 2 W. Bl. 1061. |