above referred to, has been much shaken in authority, as one of the positions assumed in the reasoning of the Court has been since overruled in the House of Lords, in the case of Rowbotham v. Wilson (6 E. & B. 593; 8 E. & B. 123). In Gill v. Dickinson (5 Q. B. D. 161), the Court of Q. B. Div. refused to follow Blackett v. Bradley for reasons given in a case upon the same Inclosure Act.

In the Acts for the enfranchisement of Copyhold Lands, 4 & 5 Vict. xxxv., and 15 & 16 Vict. li., provision is made for securing and settling the mineral rights. By the last, statute it is enacted that no enfranchisement shall affect the mineral rights of the lords of manors, or any tenants, without their express consent in writing.

RIGHT TO MINERALS IN COMMONS.

The right of common is the right of taking a profit in the land of another in common with others. Primá facie the lord of the manor is entitled to all waste lands within the manor, and it is not essential, in order to support this primâ facie title, that he should show acts of ownership of such lands. And by the presumption of law the exclusive property in the soil of all common and waste lands of the manor is vested in the lord. Consequently, the right of property in all the minerals in such lands is in him. The commoner has no interest in the soil of the land on which he has a right of common. The right of the lord to the soil of the common lands, in the absence of custom

or express grant, is so extensive, that it may even be exercised to the destruction of the herbage, and pro tanto, to the loss by the commoners of their privileges. In the case of Bateson v. Green (5 T. R. 411), it was held that the right of commoners in a common may be subservient to the right of the lord in the soil; so that the lord may dig clay pits there, or empower others to do so, without leaving sufficient herbage for the commoners, if such a right can be proved to have been always exercised by the lord. "There is a clear distinction," says a learned author,* "between copyhold lands in which the tenant has the possession, and common lands where the right of possession is wholly vested in the lord. In copyhold lands he claims the right of property in mines as part of his freehold inheritance; but he claims the right to work them by prescription, as they are in the possession of others. In common lands he has never lost possession of any part, and that possession, once absolute, is still sufficient to secure to him the full benefit of his first rights. The right of the commoner to the surface is thus subservient to the right of the lord to take the minerals, but the exercise of that right must be bonâ fide and without malice.

"A prescriptive or an actual possessory title, which gives the right to the minerals of a common to the commoners, must, as in other similar cases, be evidenced by distinct acts of ownership."

Where the lord of the manor has stood by for a long period and allowed the tenants to work the mines, and expend large sums of money, the Courts * Bainbridge on Mines, 24.

of Equity will not give him an injunction or account against the tenants, but will leave him to his legal remedy. And it is presumed that the lord may lose his claim altogether to any part of the surface or soil of a common by allowing his title to be ignored and not acknowledged by others. If a stranger, for instance, enters upon a common and there works the minerals without dispute or acknowledgment, he would in due course of time secure a title to work them by prescription, both against the lord and the commoners. The lord may also part with his rights and profits in the common for a valuable consideration, by his own express act. Thus, it appears that the right to the minerals of a common may be vested either in the lord by presumption of law, or in the commoners themselves by prescription, founded on custom or on acts of ownership; or in strangers by express grant, or by sufficient acts of ownership in the nature of encroachments. By the 2 & 3 Will. IV. c. lxxi. s. 1, it is enacted, that "Claims to right of common, profits à prendre, and other profits (except tithes, rents, and services), shall not be defeated after thirty years' enjoyment, by showing only that such right was first enjoyed prior to that period; and after sixty years the right shall be absolute, unless it appear that the same was enjoyed by consent or some agreement.

But even when the rights of the lord are not disputed, they may still co-exist with a claim on the part of the commoners to take the minerals. For Lord Coke "There be divers other commons, as of estovers, of turbary, of piscary, of digging for

says,

coals, minerals, and the like.”* But in such cases as admitted claims on the part of the commoners to dig for coals or minerals, there must, by analogy to other similar rights, be some stint and restriction to the exercise of this right. This point is, however, a very obscure one, and no case has yet been decided which indicates the opinion of the courts on restriction in digging for minerals.

When common lands are inclosed, and no special provision is made to the contrary, the allotments are freehold; but a provision is almost universally made that the allotments shall follow the nature of the tenure of the land in respect of which they are made. If the minerals are not expressly mentioned, it would seem that the several owners will be interested in them according to the nature of the tenure.

In the Act for facilitating the inclosure, exchange, and division of common lands, 8 & 9 Vict. c. cxviii. s. 97, it is enacted, that when part of the land to be inclosed shall be converted into a regulated pasture, and the residue shall be allotted in severalty, it shall be lawful for the valuer, having regard to the right of the lord of the manor, as it shall have been ascertained and declared by the provisional order of the Commissioners, and with the consent of the lord of the manor, and a majority in value of the other persons interested; to direct that the rights of the lord of the manor, in and to all or any of the minerals, stone, &c., under such part of the land as shall be converted into regulated pasture shall be reserved to the lord and all the minerals under the residue to be divided and allotted

* Coke Litt. 122 a.

in severalty, shall become the property of the owners of the respective allotments.

Sect. 98 enacts, that where the right to the minerals under any land inclosed under this Act shall exist as property distinct and separate from the property on the surface, and shall not be compensated for upon the inclosure, such right, and all auxiliary rights and easements, shall not be affected by the inclosure; and, if the minerals under land so inclosed have been leased as property, distinct from the property on the surface, the rights of the lessee shall not be affected by the inclosure.

And by the late Act, 22 & 23 Vict. c. xliii. s. 1, it is enacted, that on any inclosure where the minerals are reserved to the lord or other person, the provisional order must in future specify whether a right to enter the lands to work minerals is to be reserved, and whether any compensation is to be made for damage to the surface. By sect. 2, the lord, or such other person, and the other interested parties, may agree by what persons such compensation to the allottees, whose surface may be damaged, shall be made, and such agreement is to be part of the award. when by the provisional order the minerals are reserved to the lord, or such other person, with a right to enter the enclosed lands to work the minerals, it shall be lawful for the lord or such person to do all that is necessary and convenient for that end. By sect. 4, when the compensation is to be made by the owners of the allotments collectively, with or without the lord, or such person, the damages are to be assessed and enforced by two justices in the manner indicated by sects. 5 and 6.

By sect. 3,