Cornwall. The possessions of the duchy of Cornwall, when Duchy of vested in the sovereign by reason of there being no Duke of Cornwall in esse, are also vested in the sovereign jure coronæ, and within the same laws and prerogatives as the other possessions of the sovereign (g). The legislature has from time to time restrained the Alienation resovereign from alienating, beyond a certain extent, the strained. possessions of the Crown (h), and has also enabled the sovereign to dispose of absolutely certain lands acquired by purchase and otherwise. But such lands not so disposed of, or any only partially disposed of, go and descend as if the statutes authorizing such disposition had not been made (i). Statutes of The possessions of the Crown embraced by the sta- What within tute applied to those in England (k), and by that ap- Limitation for plied to those in Ireland (1) are manors, lands, tene- the Crown. ments, rents, tithes and hereditaments, excluding, in both statutes, liberties or franchises. The terms manors, tenements and hereditaments are of a very comprehensive character (m); and the term land, although less, is still very comprehensive (n). or unsevered from the land. The term land, being nomen generalissimum, in- Mines severed cludes mines (o); and mines, whether opened or unopened, and whilst unsevered from the land, are part of it (p), and when severed in title and possession from the title and the possession of the land of which they form part are a distinct and separate corporeal hereditament (q), and the right of the owner of them is (g) Vide ante, Chap. II. of this Book, Sect. I. (h) See the several statutes recited in 39 & 40 Geo. 3, c. 88. (i) 39 & 40 Geo. 3, c. 88; 4 Geo. 4, c. 18; 25 & 26 Vict. c. 37; ante, p. 241. (k) 9 Geo. 3, c. 16. (m) See Co. Litt. 5 a, 58 a, 6 a; Perk. s. 116; Plowd. 168; Touch.90. (n) Co. Litt. 4 a; Touch. 92. (0) Co. Litt. 4 a; Touch. 90; Rowbotham v. Wilson, 8 H. L. C. (p) 5 Co. 12; 12 Ib. 9, 12; Plowd. (q) Ib.; Touch. 96; Townley v. Gibson, 2 T. R. 701, Rone v. Grenfel, Ry. & Moo. 396. Right to, not excluded by non-user. Within those statutes. consistent with the enjoyment of the soil by the owner of it (r); and as they are frequently purchased or excepted with a view to their being opened and worked at a future time, and very seldom with an intention of immediate use, they are exempted from the presumption which nonuser justifies in other kinds of property. The mere omission to work them is quite compatible with the intention to preserve and to exercise the right to them (s). The right of the Crown therefore to this description of property may, notwithstanding the lapse of sixty years, or even of a much longer period, remain unaffected (t). In one case indeed (u), where there was a reservation in a grant of land by the Crown of all mines of tin, lead, and all royal mines, Lord Hardwicke, on the mere probability of there being no mines under the land, compelled a purchaser of the land to take it notwithstanding such reservation, and without any compensation. But this case, as regards all mines, other than royal mines, has not only not been recognized but has been disregarded in subsequent instances of mines excepted in grants of land by a subject (x). Mines, therefore, when unsevered in fact, and also in title and in possession, are included in the statutes applied to the possessions of the Crown here noticed under the term land used therein; and when unsevered in fact, but severed in title and in possession, are included either in that term, or in the term hereditament also used therein. And that they are so included may be inferred from the exception of mines in the statutes presently to be noticed, applied to the possessions of the duchy of Cornwall; for these latter statutes, exclusive (r) 16 Ves. 392. (8) Adair v. Shaftoe, 19 Ves. 19. (u) Lyddall v. Weston, 2 Atk. (x) See Adair v. Shaftoe, Seaman v. Vandrey, M'Donnell v. M'Kinty, Smith v. Lloyd, supra. of such exception, are in the same terms as the former ones applied to the possessions of the Crown. Mines royal, however, belong to the Crown by virtue Mines royal. of the royal prerogative (y), and are affected by some what different considerations to those of other kinds of mines. Mines royal will not pass under the term land, or When not ineven under the term mines, in a grant of land by the cluded under Crown, but must be granted in express terms (z). Where, said Lord Hardwicke (a), the Crown has only a bare reservation of royal mines, without any right of entry, it cannot grant a licence to any person to come upon another man's estate, dig up his soil and search for mines. This position, said Sir W. Grant, M. R. (b), is liable to considerable doubt; as being inconsistent with the resolutions of the judges in the case of mines in Plowden (c). His lordship also added, there is no such power in the Crown, and it has none such power by the royal prerogative of mines; for it would be very prejudicial if the Crown could enter into a subject's lands, or grant a licence to work the mines; but when they are once opened it can restrain the owner of the soil from working them, and the Crown can either work. them or grant a licence for others to work them. The reservation in the case before Lord Hardwicke, was of mines of tin, lead, and all royal mines. But as mines royal will pass by express words only, as just stated, the reservation in the grant in that case was surplusage. The proposition of his lordship, questioned by Sir W. Grant, is expressly in relation to such mines, and the context shows that the proposition applied to only mines royal unopened, and, when the case in (y) Reg. v. The Earl of Northumberland, Plowd. 310; 10 Q. B. 26. See 1 W. & M. c. 30, s. 4; 5 Ib. c. 6. (z) Ib.; Hob. 244. 19. (a) Lyddall v. Weston, 2 Atk. (b) 16 Ves. 393. (c) Plowd. 310. See p. 336. term land. Crown mines only as worked. Plowden and the resolutions of the judges therein are considered, is not inconsistent with that case, for the mines involved in it were open, and it is applicable to only such mines. Although, however, the grant of land, or even of land and mines, by the Crown will not, under either term, without express words, pass mines royal (d) under such land, yet by such a grant of land or of such land. -and mines generally, excepting mines royal, the title to and the possession of the latter mines are severed from the title to and the possession of the land; and, although unopened for a long period, the right of the Crown to such mines, notwithstanding the lapse of sixty years, or even of a much longer period, may be unaffected (e). Mines, however, belonging to the Crown are only affected so far affected by the statutes applied to its possessions so far as such mines may have been actually worked; for only in favour of right and in support of the agreement of parties, and not in subversion of such right or agreement, is the possession of part of mines deemed the possession of the whole (ƒ). Rents. Advowsons. Rents in the section 1, as compared with those in the section 7, of the 9 Geo. 3, c. 16, and also rents in the section 1, as compared with those in the section 5 of the 48 Geo. 3, c. 47, mean rent services, or such rents as are rendered in lieu of, and as an equivalent for, issues and profits, with which, as being ejusdem generis, they are associated, and not quit rents (g). Advowsons are the subject of express provisions in the 3 & 4 Will. 4, c. 27. But that statute does not name, and therefore does not affect the Crown (h); and (d) Reg. v. The Earl of Northumberland, Plowd. 310. (e) See Touch. 77, 78; Adair v. Shaftoe, 16 Ves. 390; Seaman v. Vandrey, 19 Ib. 156; Earl of Cardigan v. Armitage, 1 B. & C. 197; M'Donnell v. M'Kinty, 10 Ir. L. R. 514; Smith v. Lloyd, 9 (f) Vide ante, pp. 78. 79. (h) Vide ante, p. 248 et seq. the statutes applied to the possessions of the Crown in England and Ireland just mentioned do not comprise in specific terms advowsons; and, as in the construction of statutes, nothing is ever to be taken by equity against the Crown (i), the question is, whether this species of property is embraced by the general terms employed in the statutes applied to those possessions. In modern times, and in ordinary language, said Sir Meaning of J. Romilly, M. R. (k), an advowson is restricted in its advowson. meaning to the perpetual right of presentation to a church, or to an ecclesiastical benefice. The term advowson, however, has in law also a similar restricted signification, indicating that particular species of advowson called advowson of a church. Advowson, ad vocatio, says Lord Coke (1), so called because the right of presenting to the church was first gained by such as were founders, benefactors or maintainers of the church, and therefore called advocati. They were also called patroni, and the advowson was called jus patronatûs. The term advowson however has, in law, a much more extensive signification. "Advowson, advocatio," says Lord Coke (m), "signifying an advowing or taking into protection, is as much as jus patronatûs." In this signification is included the right of nomination to the mastership of an hospital, a right which, although not to present to a church or an ecclesiastical benefice, in every respect, other than that of having the cure of souls attached to the office, exactly resembles, if it be not identical with, an ecclesiastical benefice (n). At common law, before the statute De Prærogativa Regis (o), a grant by the Crown of a manor to which an advowson was appendant, without the words cum pertinentibus, would pass the advowson (p). But that (i) Plowd. 244. L. (n) Att.-Gen. v. Ewelme Hos- (0) 17 Edw. 2, st. 2, c. 15. Y When and when not passing by grant of a manor. |