Mr.

19,500. In the leases under the Settled Estates Act? R. W. Cooper. They are in the Act.

16 Dec. 1891.

Capitalisation

of rent under the Settled Land Act, 1882.

Existing difficulties, effect on the development of the mineral industry.

19,501. And you do not know from what they are taken ?--I have no idea. I have never seen such a settlement with a capitalisation provision in it.

19,502. Do you think, if there is a provision for capitalisation, those proportions are fair and reasonable, or have you not considered that question ?—I have not considered it particularly. It is an exceedingly difficult question, because it depends first of all upon whether the tenant for life is impeachable or unimpeachable for waste, and then the powers or the right of each class of tenant of that description de. pend upon the title and condition of the propertywhether the mines are open or not, for instance.

19,503. And on the area of the property?-Yes, on the area of the property.

19,504. Because the tenant for life may exhaust the whole of the property?—Yes. It is an exceedngly difficult question; very difficult, indeed.

19,505. (Chairman.) You have given us your opinion as to these difficulties. You have had a great deal of practice in respect of these leases in the north of England, I believe?-Yes, I have.

19,506. Will you tell us whether these difficulties which you have pointed out have had any serious practical effect in respect of the development of the mineral industry of the north ?-I certainly could not put it so high as that. I could not say that they have seriously interfered with the development of the mineral industry of the north.

19,507. In the north of England, that is, in Northumberland or Durham ?-No, I would not put it so high as that, except in this sense that everything, of course, that restricts the disposition of the industrial man, as I call him-the lessee-to embark his money and to spend his money freely, is indirectly a check to the development of industry. But if you ask But if you ask me whether the production of coal has been restricted by these things, I could not, of course, say so. I have known several cases of distinct hardship arising from these short powers. I have a case in my mind at the present moment, where a question arose with regard to the exercise of certain rights on the surface with regard to colliery houses,--workmen's houses. Workmen's houses in the north are always built by the lessee; they are, in fact, part of his colliery plant. He has to provide good houses for the men free of charge. That is the custom in the north of England; in fact, it is part of the wages of the men. particular case the owner could only get a 21 years' lease, while the lease of the minerals was as much as twice or thrice that, and the duration would be probably twice or thrice that. The result will be that in the course of two years now, I think, this lease will fall in, and the colliery owner has to face his rent being doubled, notwithstanding the fact that the houses were built by himself or his predecessors. That does act undoubtedly as a discouragement to lessees; they like to have as fixed a tenure for their expenditure as they can get.

In this

19,508. That particular case, I suppose, happened because there was no power in the settlement to give any lease beyond 21 years?—Yes.

19,509. That would apply to any building property, colliery or any other?-It was not a building property, it was more a mining property than a building property. Speaking of the same thing again I can think of another case of a 21 years settlor where he grants mining powers; these mining powers are necessary to be used in connection with the working of coal held on a much longer tenure, and they are, owing to the powers, only for 21 years. The colliery lessee who is working the minerals must face the almost certainty of having not only a discussion on it, but the possibility of having an increased rent at the end of 21 years. It may not be so of course; it is a matter for negotiation, but still the colliery lessee does dread those risks and he is always anxious to avoid them if he can so as to make the tenure as safe as possible.

19,510. (Chairman.) Have you had cases of difficulty arising when a settled property is under trust and in the hands of trustees who usually do not consider that they have the same latitude in action as actual owners, cases where trustees were obliged to be restricted to the letter-?--To the letter of the lease do you mean?

19,511. Yes, to the letter of their powers?-Do you mean as regards waiving any of the conditions of the lease?

19,512. Where the difficulty is increased when a property is in the hands of trustees ?-As against being in the hands of an absolute owner? 19,513. Yes?-Certainly I have.

easements.

19,514. Now as regards surface or underground Powers in easements, wayleaves, and surface subsidence, what respect of have you to say upon those points?—I think the power in these respects conferred by the Settled Land Act is very full (section 17 is the section). It appears to give very wide powers to grant easements and rights and privileges of every description for mining purposes in relation either to the settled land itself or to any other land.

19,515. What form do concessions modifying the Difficulties in conditions of mining leases usually take?-The first the way of modification of concession that is generally applied for is a reduction conditions of of rent. The second-I have had a certain amount of leases. experience as to the second-is that lessees sometimes ask when they find before the expiration of the lease that their coalfield is drawing to an end as it were, and that they are not able to work out the coalfield let to them up to the extent of the dead rent reserved, and that therefore the supply of their colliery establishment depends upon other coalfields which they work in connexion with the coalfield in respect of which they have to pay the dead rent they sometimes are anxious to have the out-stroke rents, that is the underground wayleave rents, payable to the lessor of the shaft up which the coals are brought, brought into account as well as the actual tonnage rents, payable in respect of the coals worked out of the particular coalfield itself. There again, where the property is in the hands of limited owners or trustees, that can only be done in all probability by the lease being surrendered and a fresh lease granted. The third matter where concessions are often asked for is as to the power to carry forward short workings which have accrued under a previous lease, or a lately expired lease but which have not

been worked off.

19,516. Now do you find in respect of those three different modifications of mining leases that there are practical difficulties put in the way of a limited owner carrying out whatever his wishes might be in respect of those three different items in consequence of the law of settlement ?--Yes, I think there are practical difficulties in the way.

lease.

19,517. You will point out in what those difficul- Reduction of ties consist? In the first case, if it is desired to re- rent, and duce the rent, this can only be done so far as I can surrender of see either by the lessee exercising his power to surrender his lease at stated intervals, if he has that power in the lease, which is universal in the north of England, and taking a new lease on the agreed modified terms, or by the lessor if he is tenant for life, exercising the power of surrender which is given to him under the Settled Land Act, and then granting a new lease.

19,518. (Mr. Rhodes.) Exercising his power or surrender under the Settled Land Act, do you say, the tenant for life can surrender his lease with or without consideration of the settlement?

(Chairman.) You are just now referring to the Settled Land Act of 1882, are you not?-Yes.

19,519. To section 13? That is the section, Under that the lessor can accept a surrender and then grant a fresh lease. In granting a fresh lease, of course, the consideration of whether the settlement powers of leasing are as extensive as the powers of the Settled Land Act will naturally apply, and also the consideration of whether his settlement is

before or after the Act will also apply. If his settlement is before the Act, and if his settlement powers are shorter than those in the Act he will only exercise his shorter powers by reason, I think, of the capitalisation which would be involved in exercising the powers of the Act. Of course, if his settlement Of course, if his settlement is after the Act, and there is a declaration in the settlement avoiding the capitalisation, he will then exercise the powers of the Act. I have had experience of cases under both those heads.

19,520. I understand the same difficulty would apply to the averaging of out-stroke rents ?-I think so, precisely.

19,521. Have you had any cases in your own experience where a tenant for life was anxious in bad times to reduce the rents of the mine owner, and he could not do it in consequence of his limited powers? -I do not know. I do not think I have, because in one case that I have had to deal with, fortunately the tenant for life had a very full power under his settlement. He agreed to reduce the rent, and it was carried out by surrendering the lease under the powers of the Settled Land Act, and granting a fresh lease under the powers of his settlement, which did not entail any capitalisation. In another case that I had the lessees exercised their power of surrender, and then I think either the trustees or the tenant for life granted a fresh lease on the modified terms. I do not myself know of any case where the reduction has been rendered impossible, speaking as far as I recollect at present.

19,522. (Lord Macnaghten.) Of course the tenant for life may reduce the rent for his own life ?-For his own life, of course-possibly in a case under the Land Act he would not have power to do it, because the tenant for life is supposed to be acting as trustee for the purposes of the Land Act.

19,523. We have had in the course of our inquiry a great many statements made to us that in bad times the proprietors of land have very often reduced the rents payable by the mine owners?—Yes.

19,524. Do you conceive that these difficulties have practically interfered with their power of action in this matter; do you know of any single hard case which has occurred in consequence of these difficulties?-I cannot say that I do. I know of a case at the present time where a tenant for life waived, I think an underground wayleave rent, or something of that nature. Of course the concession operated during his life, but he died, and I do not think that the concession was continued by his successor. To that extent of course it was a hardship, but I know of nothing, that I could bring forward as a striking case of hardship.

19,525. It is more a legal point than a practical point? That is so, and it was in that sense that I brought it forward.

19,526. Now there is the third category which you have mentioned, namely, the short workings?-There I do know of a case.

19,527. I think, perhaps, you have not exactly explained where the difficulty lies in this ?-I will do 80. If these unrecouped (as I call them) short workings, which have accrued under a previous lease are to be carried forward and brought into account in a new lease, I do not think that a tenant for life exercising his powers of leasing would be able to authorise that to be done, because a power to make up short workings is in effect a liberty to work a certain amount of coal free of rent on the ground that it had been previously paid for, and I should more than doubt whether, under the terms of the sections of the Settled Land Act (which I think are section 7 and section 9) such a thing could be done; in fact, my opinion, for what it would be worth, is that it could. not be done.

19,528. (Mr. Jamieson.) Before the Settled Land Act?-Under the Settled Land Act.

19,529. Before the Settled Land Act?-That would involve a more difficult question, because before the Land Act, under the ordinary settlements the general

Mr.

16 Dec. 1891,

condition was that the rents that had to be reserved were the best that could be reasonably had. There R. W. Cooper, fore, in determining whether the rent was the best that could be reasonably had, you would have to have regard to a variety of considerations; and I can Short quite conceive it might well be that although the workings. unrecouped short workings were allowed to be carried forward, yet taking the settlement into consideration, it would be difficult to show that the rent as a whole under a lease, previous to the Act was the best that could be had.

19,530. (Chairman.) Is there not a provision in the Settled Land Act to the effect that every lease shall reserve the best rent that can reasonably be obtained, regard being had to all the circumstances of the case?—Yes, that is in the Act.

19,531. Has any case come into court to settle this point?—No, I know of no decision whatever on the poiut.

The

19,532. (Mr. Jamieson.) If instead of making that abatement, the rent were reduced in the new lease, there could be no objection to that?-What I say of that is rather this when I come to think of it. question of the power to make up the short workings is more or less in the nature of a concession to that particular lessee. The question is whether an in dependent lessee would not be willing to come and take the coal field without that particular concession; and if he was willing to pay the same rent without the concession then the granting of a concession would not be the best rent that could reasonably be had.

19,533. (Mr. Dale.) Supposing the terms as a whole, including the right to carry forward these shorts, were the best that could be got, there might still be an uneven distribution of the terms as between the tenant for life and the remainder man ?—Yes, there might be.

19,534. Because alternative equivalent terms might be a lower tonnage rent and no carrying forward of the shorts?—Yes.

19,535. The effect of which might be that the tenant for life would benefit less because he would be immediately the recipient of a less tonnage rent?Yes.

19,536. Do you see what I mean?—Yes.

19,537. I am assuming two sets of terms whic might be deemed to be absolutely equivalent in point of advantage?—Yes; you mean the same certain rent and the same tonnage rent.

19,538. Not necessarily, two sets of terms which might be described as equivalents to each other although they varied in form; both of them being capable of being described as the best terms obtainable; but in regard to one of them shorts are carried forward, that is the right to work coal at some future period without paying any rent for it at all; and in the other set of terms there is no carrying forward of any shorts, but in all probability that is met by a lower tonnage rent than attached to the other set of terms. In the operation of these two sets of terms the effect might be different upon the tenant for life and upon the remainder man ?-Yes, I can conceive of such a case.

19,539. Therefore there might be that difference? Yes, I can conceive it.

19,540. (Chairman.) Do you know any case of difficulty under this particular head, where there has been some difficulty in allowing the short workings to be recouped in consequence of this ?-Yes, I have known of such a case.

19,541. You have known of such a case?-Yes, I have.

19,542. Do you think it would be advisable to have an alteration in the law in order to make these things clear?-I think that if in fact any legal doubt exists upon that point it would be very well to have it altered, because the more the powers that are conferred upon tenants for life are brought into harmony with common practice the better. It is not at all an unusual thing in ordinary cases for unrecouped shorts to be carried forward, or for the lessee to ask for them

to be carried forward; and power ought to be given to the tenant for life to do it.

19,543. You think nothing should restrict the tenant for life in acting in the same way that a man who had complete control over his property would act in similar circumstances?—I think so, provided it all be done bonâ fide.

19,544. Do you know any cases where minerals are held in undivided shares ?-Yes; I have experienced two or three cases in the north of that description.

19,545. Will you explain what is meant by "held in undivided shares "?--Where the coal-field belongs to two, three, or four owners as what is termed joint tenants, or tenants in common as the legal expression is. Their shares are either fourths, or fifths, or tenths, or sixteenths as the case may be.

19,546. What is the result of that ?-The effect of that is this: that the owner of any of the undivided shares may work the coal, and he may authorise the working of the coal; but, he is liable to account for the value of the coal at the pit mouth, less the cost of getting it there, to the other co-owners who do not concur, to the extent of their proportions.

19,547. Lord Macnaghten.) Did you ever know of a co-owner working a mine?—I did once, but I confess it was probably a mistake. I acted for the co-owner; he was a defendant, as there was a bill filed in Chancery for an account.

19,548. He conceived himself to be the owner of an entirety?—I think he thought under the leasehold agreement that he had from the remaining nine tenths that it was all right. It had been probably overlooked altogether.

19,549. It is not a usual thing that of being a coowner, is it?—These undivided shares are not by any means common.

19,550. (Chairman.) Do you know any cases in which coal is not worked in consequence of difficulties of this nature?-Coal not being worked?

19,551. Yes?—I never heard of one case; but I know of a case where the coal might not have been worked, where two owners had a strong dispute, and one owner immediately took proceedings for a partition, and, of course, that is by no means a satisfactory procedure; but the end of it was that the matter was compromised and conditions were arranged.

19,552. (Lord Macnaghten.) Why not satisfactory; that would have led to a sale and a partition ?—It was so long, and the delay was so great; and in the meanwhile the colliery lessees' works were standing.

19,553. (Mr. Rhodes.) And then again, you cannot partition underground mines like you can the land? -You can do it, but then there was the uncertainty as to which particular portion of the coalfield might be allotted to the particular co-owner.

19,554. (Lord Macnaghten.) There is a right to demand a sale ?-Yes, there is of course; but we dreaded the delay of 12 or 18 months before we got to a hearing.

19,555. (Chairman.) What remedy would you suggest to this difficulty, if a remedy should be applied to it?--I have not addressed my mind to that question at all.

19,556. (Lord Macnaghten.) Would you rather suggest the appointment of an additional judge, and less delay in dealing with cases ?-Possibly; I think that would meet it. The acts of Parliament giving rights of partition are perfectly satisfactory if you can get the remedy in time.

19,557. Then when the country pays for another judge that will meet it?-Yes, I think that will be the best cure. I only mention that as one of the matters affecting the legal aspect of the position of the owner of minerals.

19,558. (Chairman.) As I understand you merely wished to make an exhaustive memorandum ?-That was all. I have nothing to suggest on this point.

19,559. You do not put it forward as a matter of very serious consequence ?-No, not at all; merely as a matter of interest rather than as a grievance.

19,560. What are the conditions when the surface and the minerals are held by different owners ?— There, of course, the condition of affairs does un- Severance of doubtedly become more complicated. So far as my ownership. knowledge goes, except in Northumberland and Durham there is not much severance; that is to say, in most cases the surface and the minerals belong to the same owner; but in the county of Durham there is a great Ideal of severance. In Northumberland there is a certain amount, but not so much as there is in the county of Durham. I believe that in Durham the greater part of the land over the mines which belong to the Ecclesiastical Commissioners (who are no doubt the largest lessors in the county, because I think the out-put from their mines is more than a third of the whole out-put of the county) belongs to other owners than the Commissioners.

19,561. That is, the surface belongs to other owners?—The surface belongs to other owners than the Commissioners. The Commissioners are the owners of a considerable manor in a part of Northumberland which originally was part of the county of Durham, and there the surface does not belong to them. There are also in Northumberland cases of commons which have been enclosed, either by agreement or by Act of Parliament, where the surface belongs to the successors in title of the allottees and the minerals belong to the successors in title of the lord of the manor. There are also some cases near Newcastle where the surface was sold off of considerable estates, perhaps some 150 years ago or thereabouts, and the minerals are now being worked, and of course the surface of the estate has passed into a variety of hands since then.

Durham.

19,562. Were the Bishop of Durham's lands largely Copyholders in held by copyholders?—Yes, in Durham the bishop's the county of lands were largely held by copyholders, and there is to this day a large amount of copyhold surface land in that county. The county of Durham was divided into several large copyhold manors, and there are several manors in that county of which the bishop was the lord, and of which the Ecclesiastical Commissioners are now the lords.

19,563. Did the soil and the minerals themselves originally belong to the bishop?-Originally, in times gone by, no doubt both belonged to the lord of the manor. In the course of time a system of copyhold tenure sprang up, and although the copyhold surface dues in Durham are exceedingly light, the result is this, that as a matter of law what is termed the possession, of the entire property is in the copyholder, but the property or the ownership of the minerals is in the lord of the manor. Of course the result of that as a matter of law is this, that in the absence of custom neither the lord nor the copyholder can work the minerals without the consent of the other. The copyholder cannot work except possibly for his own personal use. I have seen it suggested somewhere that he might do it for that purpose. know of one small manor in Durham of which the Commissioners are not the lords which belongs to a private individual, and there, by a very curious old custom, the upper seam of coal is worked by the copyholders of the manor who have a sort of copyhold pit, a little village pit which has existed for a very long time indeed. That is the only case I know of a copyholder in Durham working minerals at all. In all the other cases the minerals belong to the lord; the copyholder cannot work them but the lord has no right to enter upon the copyholder's property.

I

19,564. Has he a right to go underneath the copyholder's property?-He has the right to work the minerals undoubtedly.

19,565. (Mr. Rhodes.) And to let down the surface?-No.

19,566. (Lord Macnaghten.) Not without the leave of the copyholder or particular custom, has he? -In Durham (and I should say that I was referring to Durham) he has the right, which has been thoroughly well established, by custom and without

Surface damage.

Shafto v. Bolckow.

the leave of the copyholder to work the minerals, but not to let down the surface.

19,567. (Chairman.) You are speaking now in reference to the Ecclesiastical Commissioners?—Yes.

19,568. Generally speaking, the Ecclesiastical Commissioners or the Bishop of Durham have the right to work the minerals ?-Yes, they have.

19,569. Without the consent of the copyholder ?— Yes.

19,570. As regards the letting down of the surface, what is the condition of things with respect to that? -As regards the letting down of the surface there appeared to be a somewhat common belief prevalent in Durham till the year 1888 that the bishop might let down the surface on paying compensation for damage done to the surface. That was contested in an action of Shafto v. Bolckow (the well-known Bolckow, Vaughan, and Company), but the Commissioners failed entirely to prove any such custom -I mean the custom of a right to cause subsidence on paying compensation. Mr. Justice Kekewich delivered judgment, and he was in favour of the copy

holder.

19,571. What did that judgment establish ?-It established in effect this, that the Ecclesiastical Commissioners, as the owners of the minerals under copyhold lands in the county of Durham, have not the right by themselves or their lessees to take away the surface support even on paying money compensation; and it also established this, that they have not the right to use the underground space for any purposes not connected with what I may call episcopal coal, that is to say, coal belonging to the bishopric of Durham originally.

19,572. They could not take, for example, the coal which the Ecclesiastical Commissioners might have acquired under the land of a neighbouring owner through underneath the copyholder's lands ?-I think not. I think they would not have that right. Instead of episcopal coal I should more correctly, perhaps, have said coal that was part of the ancient possessions of the see and bishopric of Durham. In that particular case of Shafto v. Bolckow it was not a question of whether their lessee Bolckow had the right to carry underneath Shafto's copyhold, coals which belonged to the Commissioners, although they were not part of the ancient possessions of the bishopric, but whether he had a right to carry coals belonging to a third party. It was held that the lessee had not that right. In that particular respect, however, the decision in the case of Shafto v. Bolckow really amounted to this, that the Commissioners failed to establish the extensive custom which they tried to maintain; and the learned judge naturally followed the previous decisions. The last decision Fardley v. which I remember was the case of Eardley v. Lord Lord Granville, Granville, a decision of the late Master of the Rolls which followed a previous decision in a north country case arising near Bishop Auckland, of Bowser v. McClean, which was a decision of Lord Campbell's.

and Bowser v. McClean.

Rights of copyholders, surface damage, and underground wayleaves.

19,573. How far has that practically interfered with the power of the coal owners to work the coal which they have leased from the Ecclesiastical Commissioners? Well, the practical effect of it is this, that the copyholder, the surface owner, obtains rent from the worker of the minerals for the privilege of carrying underneath his surface nonmanorial minerals. It has not, as it were, interfered with the working because the lessee simply had to pay rent, and that has been a question of negotiation.

19,574. Did it enable the copyholder to ask what the mine owner might consider to be exorbitant terms either for letting down the surface or for using the underground wayleave ?-Exorbitant, of course, is a question of degree; but it enabled the copyholder to demand a rent per ton for coal which did not belong to him, undoubtedly, for the mere privilege of working it away. What the copyholders have generally done is this: They say, "We will take a certain sum per "ton with a general provision for payment of compen"sation in money for damage as it arises, or we will

"take an increased sum per ton to cover the right to

Mr.

16 Dec. 1891.

cause damage"; that is to say, which will include R. W. Cooper the compensation. Of course that is paid in addition to the rent which is paid to the owner of the coal underneath the copyhold tenement, namely, to the Rights of lord of the manor.

copyholders, 19,575. (Mr. Rhodes.) And in addition to that rent surface which was estimated as the fair rent when the mine damage, and was leased?-In many cases; certainly, I have underground wayleaves. doubt that is so.

no

19,576. (Mr. Jamieson.) It would endure only during the continuance of the lease ?-Most of our leases in Durham do not expire till the year 1926 or 1930, I believe. They were all previous to this decision renewed on terms of 42 or 63 years, expiring about 1926.

19,577. (Chairman.) Do you consider that that constitutes any grievous hardship to colliery owners? -It has had the effect of increasing the rent by from 1d. to 1d. per ton. That is the effect. It is a question of money altogether, and it has increased the rent by from 1d. to 14d. per ton. In times of depression, of course I am not a trader myself, but I know from my general knowledge, that in times of depression when competition is very severe ld., or lid., or 1d. per ton is a matter of great importance.

19,578. (Lord Macnaghten.) But still the copyholder had certain defined rights which he would only give up on payment of money?-Undoubtedly, he had certain legal rights.

19,579. (Mr. Dale.) But rights which were not supposed to exist when the lease was taken ?-I think in this case both the lessors and the lessees erroneously supposed that those rights did not exist. There appeared to be a sort of undefined idea that the Bishop of Durham or the Ecclesiastical Commis. sioners had very extensive powers; but when the question did arise the obligation to contest and settle all these questions was thrown upon the lessee. He has to fight the question and he has to pay the rent. The practice of the Ecclesiastical Commissioners-I do not blame them at all for it-is to grant their leases so far as they lawfully can or may.

19,580. (Lord Macnaghten.) And they do not reduce their rent in consequence?-I have not heard that they do so. I know cases where they certainly have not reduced the rent in consequence. I wish it to be understood that I do not venture to suggest any particular complaint against the Ecclesiastical Commissioners as landlords generally in regard to the rent they get, because if I were to express an opinion it would be rather a good one than a bad

one.

19,581. (Chairman.) There are also some commons Right of which are somewhat differently circumstanced in owners of relation to the copyholders ?—Yes, in Durham there common land. is a large amount of common land, a very large amount. I have had a good deal to do with questions of commons, and I should think there must be at least 30,000 acres of land in Durham which was originally common land, and which is now enclosed by private Acts of Parliament under which valuable coal mines lie. There the relative rights of the owners of the surface and the owners of the minerals, who are the Ecclesiastical Commissioners in most cases, as lords of the manor, depend upon the language of the particular Act of Enclosure. There are several cases of commons in Durham where the lords of the manor are not the Ecclesiastica. Commissioners, I can think offhand of at least half a dozen.

19,582. (Mr. Abraham.) To whom are the royalties paid in that case ?-To the lord of the manor, the owner of the minerals.

19,583. (Chairman.) Is there no doubt about the ownership of the minerals ?-None whatever.

19,584. The question, as I understand it, is as to how far the proprietor, as I should call him, of the minerals can work his minerals ?-Or use the underground space.

Bell ". Love.

Shafto v. Bolckow.

19,586. Have any cases of practical difficulty arisen in consequence of this ?--Yes; several. Of course these practical difficulties in the end all become questions of money. It is a question of making the best terms you can. When these difficulties arise they all resolve themselves into a question of so much per ton.

19,587. Have the commoners been bought off-— ? -Their successors; they are allottees now; they were

commoners.

19,588. May we say that the allottees have been bought off by payment of some sort ?-Certainly.

19,589. Has that also tended to increase the royalty upon coal?-Distinctly. We have had, I think, in Durham and Northumberland our fair share of reported cases on these questions in the law courts. We have a famous case of Bell v. Love, with which, of course, my Lord opposite is very well acquainted, reported in 9th Appeal Cases, p. 286, which went to the House of Lords. That was the case of the enclosure of a moor near the city of Durham. The lords there were the Ecclesiastical Commissioners as successors of the Dean and Chapter of Durham. Then we have that case of Shafto v. Bolckow in 1888, which was not reported; but I have the shorthand writer's notes of the judgment of Mr. Justice Kekewich. That was also the case of a common near Bishop Auckland, a place called Byers Green, of which, I think, the bishop was originally the lord, and of course the Ecclesiastical Commissioners were lords as his successors. In these two cases the decision on the question of the surface support was against the mine owner. Then we have the case of Gill v. Dickinson. We had that in the year 1880 or 1881, and the judgment, which was delivered, I think, by the late Mr. Justice Lush, is reported in the 5th Queen's Bench Division Law Reports, p. 159. That was the case of a common called the Wolsingham Common. And we have what is, I think, the last case to my knowledge, a case in which I was concerned myself, which was decided in the Court of Appeal Consett Water- in 1889, a case of the Consett Waterworks Company v. Ritson. That is reported in the 22nd volume of the Law Reports, Queen's Bench Division, pp. 318 and 702. In that case the court below were of opinion that the mine owner was not entitled to let down the surface. That decision, however, was reversed by ths Court of Appeal.

Gill v. Dickinson.

works Co. v. Ritson.

Restrictions on

19,590. Is there any other case upon the restriction use of surface. of the rights of copyholders in commons ?-The rights to use the surface have been restricted. Upon that point there was a case decided as long ago as the year 1845 in connexion with one of these commons; it was the case of Midgley v. Richardson, which is reported in the 14 Meeson and Welsby, p. 595. There was another case in 1864, the case of Hedley v. Fenwick, which is reported in the third volume of Hurlstone and Coltman, p. 349.

Midgley v. Richardson, and Hedley v. Fenwick.

19,591. What was that case?-It was a case where a railway had existed for a good many years leading from a pit sunk on land forming part of one common. It ran over part of that common; then it passed over another common, the lords in both cases being the same, and eventually it joined a public line of railway. For a great many years the makers of the railway, the owners as I call them in popular phraseology, had carried their minerals-the common minerals belonging to the lord of the manor-from this common pit, as I call it, over this railway. They subsequently took a fresh coal mine adjoining, a freehold coal mine, not belonging to the lord of the manor. Thereupon the owner of the surface over which the railway passed applied for and obtained an injunction to prevent the railway being used for the carriage of coal not belonging to the bishopric of Durham. That case again was compromised by a wayleave lease having to be taken. I think the rent was fixed at a penny per ton-indeed I should not say I think-I

know it was, because I happen to know all about the

case.

19,592. (Mr. Jamieson.) Do you quote that as a case of hardship ?-The question of hardship is hardly a matter for me to express an opinion about.

19,593. Or for remedy?-Yes, I am rather disposed to think that it was. I will explain to you how the anomaly rose. In the case of one of these commons there was an undoubted right on the part of the lords of the manor to authorise their lessees to carry any coals wherever found by railway, but in the case of the common immediately adjoining the right was limited to coals belonging to the bishopric of Durham.

19,594. (Lord Macnaghten.) In the Enclosure Act?-In the Enclosure Act.

19,595. A great deal of difficulty very often arises from the variation of language in these Acts? Very much so, indeed.

19,596. Have you ever thought of any means by which that might be remedied ?-In the case of these enclosures, where the lords originally had a right I take it to make the railways and to use the railways for any purpose they thought fit, because the soil was absolutely the property of the lord provided that he preserved the pasturage of the commoners, which was a comparatively small matter, I do not see why where these railways have been constructed for a given purpose and used for a given purpose they could not be used for all purposes of the colliery.

19,597. Still these rights have grown up and they have been recognised?-They are defined by Act of Parliament; they are rights undoubtedly in the legal sense of the word.

19,598. (Mr. Jamieson.) And everybody had notice of them?--I do not think so at all, because in all these cases I am quite sure that they were a surprise to the mine owners.

19,599. They had legal notice of them ?-In the sense that every subject has legal notice of an Act of Parliament, yes.

19,600. (Chairman.) And did the landowner also receive wayleave rent?-That same landowner receives from another colliery which uses the same railway a wayleave rent for the coals passing over the same railway.

19,601. Have you any other cases in which you know of difficulties of this kind having arisen ?Owing to these variations in the powers in the Acts?

19,602. Yes.-I had a case of my own not very long ago where a pit had been sunk for drainage purposes on one of these commons. The pit had been sunk for many years, and it was sunk, of course, in connexion with the drainage which was naturally produced in the ordinary course of operations in the common colliery. The lessee subsequently took some adjoining freehold coal belonging to an adjoining proprietor, not the lord of the manor, and of course he worked it in connexion with the rest of his coal. The somewhat astute agent of the owner of the surface after some time discovered that the drainage from the freehold coal naturally mixed with the drainage produced in the common coal by gravitation, and he immediately threatened to apply for an injunction to restrain the use of the pit unless we came to terms, and to terms we were obliged to come; we could not help ourselves.

19,603. (Mr. Jamieson.) Is that again a case of hardship? I think it is. I cannot conceive why in this case the owner of the surface land, which was undrained moorland, or land which without an existing pit upon it, was not worth more than 5s. an acre in the ordinary way-absolutely moorland-should in consequence of what was little better than an underground accident, that water gravitated from royalty A into royalty B and there mixed with the water of royalty B, demand a very excessive rent. The rent, I may tell you, was 1007. a year for a field of 25 acres.

19,604. For pumping out another man's water ?—— No, not for pumping out another man's water, but