Chap. IV. Reservation and exception of minerals. Estovers of gravel, clay, and minerals. Turbary. The reservation of minerals includes all reasonable means of getting them (d). A reservation of " minerals" includes every substance which can be got from underneath the surface of the earth, whether by mining or quarrying, for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the Court to give it a more limited meaning (e). The test, however, is not whether the substances in question can be worked at a market profit at the time, but whether they have a use and a value independent of and separate from the rest of the soil (f). A reservation of mines and minerals in a farming lease does not indicate an intention to exclude a custom of the country for tenants to remove and sell flints which come to the surface in the ordinary course of agricultural operations so as to deprive the tenant of this right (g). A tenant for life or years may take reasonable estovers of gravel and clay for the repairs of buildings, although the pits were not open at the date of the grant or demise (h). There may be also estovers of brick earth, lime, or the like, for the reparation of buildings or manuring the land (i). So also may there be estovers of coal (k). If there are open quarries of limestone on the land, the tenants may work them for estovers (1). A tenant for life or years of land comprising turves has a right to cut by way of estovers as many turves as may be reasonably sufficient for consumption on the premises by way of firebote (m), but he may not cut turves for the purposes of (d) Earl of Cardigan v. Armitage, 2 B. & C. 197; 26 R. R. 313; Proud v. Bates, 34 L. J. Ch. 411. See Harris v. Ryding, 5 M. & W. 60; Goold v. Great Western Deep Coal Co., 2 D. J. & S. 600; Mordue v. Dean and Chapter of Durham, 8 C. P. 336; Hayles v. Pease and Partners, Ltd., (1899) 1 Ch. 567. (e) Hext v. Gill, 7 Ch. 712. (f) Earl of Jersey v. Neath Union, 22 Q. B. D. 562, per Bowen, L.J.; Johnstone v. Crompton & Co., (1899) 2 Ch. 190, 197. Linger, 21 Ch. D. (g) Tucker v. (h) 2 Roll. Ab. 816. (i) Co. Litt. 53 b, 54 b; Saunders' case, 5 Co. Rep. 12 a. (k) 2 Roll. Ab. 816. (1) Purcell v. Nash, 1 Jon. 625; Mansfield v. Crawford, 9Ir. Eq. 271. (m) De Salis v. Crossan, 1 Ba. & Be. 188; 12 R. R. 12; Lord Courtown v. Ward, 1 Sch. & Lef. 8; Howley v. Jebb, 8 Ir. C. L. 435. sale (n), unless turves have always been so cut, or unless there is no other mode of enjoying the land (0). The right of turbary only applies to turves adapted for the purposes of fuel, and does not apply to turves of grass (p). Chap. IV. holder in mines, A copyholder, whether of inheritance or for life, or for years Interest of copyonly, has the same possessory interest in mines as he has in clay, gravel, &c. trees (q). By custom a copyholder of inheritance may have the right to break the surface and dig gravel, sand, and clay, without stint, from out of his own tenement for the purposes of sale off the manor (r). So also may a customary tenant have the right by custom to work mines for profit on his own copyhold tenement (s). But in the absence of custom the tenant cannot, without the leave of the lord, open or work new mines or work quarries upon his own tenement, nor on the other hand can the lord, in the absence of a custom, open and work mines upon the tenement of a copyholder (t). If a stranger takes the minerals, the copyholder can bring trespass against the stranger for interfering with his possession, and the lord may bring an action against the stranger to recover the minerals (u). The right of the lord of a manor to minerals Right of lord to is a right of property to the mineral substance only, subject to copyholds. which the copyholder has an estate in the soil throughout. If the lord has removed minerals, the space left belongs to the copyholder (u). (n) Coppinger v. Gubbins, 3 J. & L. 410; Howley v. Jebb, 8 Ir. C. L. 435; Wakefield v. Hendron, 11 L. R. I. 505. (0) Coppinger v. Gubbins, 3 J. & L. 410; Stevenson v. Moore, 7 Ir. Ch. 462. See, as to grants of turbary, Hill v. Barry, Hay. & J. 688; Hargrove v. Congleton, 12 Ir. C. L. 362, 368. (p) See Wilson v. Willes, 7 East, 121; 8 R. R. 604; Wilkinson v. Haygarth, 12 Q. B. 837. (q) Scriv. on Cop. 296; Eardley v. Lord Granville, 3 C. D. 832. See Bowser v. Maclean, 2 D. F. & J. 415. (r) Marquis of Salisbury v. Glad stone, 9 H. L. C. 692; Hanmer v. (8) Bishop of Winchester v. Knight, (t) Bishop of Winchester v. Knight, 1 P. Wms. 406; Grey v. Duke of Northumberland, 13 Ves. 236, 17 Ves. 281; Bourne v. Taylor, 10 East, 189; 10 R. R. 267; Cuddon v. Morley, 7 Ha. 204; Duke of Portland v. Hill, 2 Eq. 765; Eardley v. Lord Granville, 3 C. D. 832. (u) Eardley v. Lord Granville, 3 C. D. p. 833. minerals in Chap. IV. Right of lord of manor to take gravel, &c., &c., in the waste of the manor. Waste by altera of land. The lord of a manor, in the absence of custom, is entitled to every substance which can be got underneath the surface of the earth in a copyhold tenement for the purpose of profit (x). Although in the case of copyholds the property in the mines and minerals is in the lord, the concurrence of the tenant is necessary, as a rule, in order that the minerals may be worked (y); and accordingly a copyholder may obtain an injunction against the lord entering and digging for minerals under his tenement (z). It seems open to question, however, whether the lord is not free to work the minerals without the concurrence of the tenant, provided that he does so by underground workings and without entering upon or interfering with the surface (a). The lord of a manor may take gravel, marl, loam, turves, &c., in the waste of the manor, so long as he does not infringe upon the rights of the commoners. His right exists by reason of his ownership of the soil, and is quite independent of the right of approvement under the Statute of Merton or at common law. There is no ground of distinction between the lord's "digging and cutting" simply, and "digging and cutting for purposes of sale." The burthen of proving that he avails himself unduly of this right lies on the tenants. In the case of approvement the onus probandi is on the lord, upon the ground that the lord having made a grant over the whole waste, his right to inclose is treated as a right conditional upon his establishing that he has left sufficient to enable the tenants to enjoy the right of common granted (b). Any permanent alteration of the character of land, such as tion of character the conversion of meadow into arable land by ploughing it up, or arable land into wood, or a meadow into an orchard, is waste, even although the value of the land be increased, because it not only changes the course of husbandry, but affects (x) Att.-Gen. v. Tomline, 5 C. D. 762; 15 C. D. 150; Hext v. Gill, 7 Ch. 712. (y) Hext v. Gill, 7 Ch. 712; Eardley v. Lord Granville, 3 C. D. 832. (z) Att.-Gen. v. Tomline, 5 C. D. 750. (a) Scriven, 298; and see Bowser v. Maclean, 2 D. F. & J. 415. (b) Hall v. Byron, 4 C. D. 667; Bell v. Love, 10 Q. B. D. 558; Robertson v. Hartopp, 43 C. D. 484, 499. the proof of title (c). But a mere temporary alteration in the ordinary and reasonable course of husbandry is not waste (d). The enclosure and cultivation of waste land may be waste by reason of the injury to the evidence of title (e). Chap. IV. land. Sect. 2. By the general law a tenant for life or for years is under no Waste by bad obligation to cultivate land. It is not waste to suffer arable cultivation of ground to lie fresh and not manured, so that it grows full of thorns it is merely bad husbandry (f). To oblige a man to cultivate according to good husbandry, there must be either an express contract or a custom of the country (g). A custom of the country need not have existed from time immemorial, as must a custom properly so called. It is sufficient if there be a general usage applicable to farms in the part of the country in which the land is situated (h). The mere relation of landlord and tenant creates an implied obligation on the part of the tenant to manage and use a farm in a husbandlike manner according to the custom of the country where the premises are situated (i), unless, indeed, the lease or agreement contain some express covenant or premise inconsistent with such custom and sufficient to exclude it (k). The removal of hay, straw, dung, crops, &c., from a farm is waste, where it is contrary to the custom of the country, and will be restrained (e) Co. Litt. 53 b; Lord Darcy v. Askwith, Hob. 234; Worsley v. Stewart, 4 Bro. P. C. 377; Simmons v. Norton, 7 Bing. 647; 33 R. R. 588; Goring v. Goring, 3 Sw. 661; West Ham Central Charity Board v. East London Waterworks Co., (1900) 1 Ch. 624; but see Meux v. Cobley, (1892) 2 Ch. 253; and see Agricultural Holdings Act, 1883, s. 42. (d) 2 Roll. Ab. 814; Viner, Ab. tit. Waste; Malevrer v. Spinke, Dyer, 37 a; Simmons v. Norton, 7 Bing. 647; 33 R. R. 588; Cruise, Dig. tit. iii. c. 2, s. 19; Gibbon on Dilap. 198. (e) Queen's College v. Hallett, 14 East, 489; 13 R. R. 293. observations on this case in West Hum Charity v. East London Waterworks Co., (1900) 1 Ch. 624. See (f) Bro. Ab. Waste, pl. 5 2 Roll. Ab. 814; Hutton v. Warren, 1 M. & W. 472; 46 R. R. 368. (g) Hutton v. Warren, 1 M. & (h) Leigh v. Hewitt, 4 East, 154; (i) Powley v. Walker, 5 T. R. (k) Hutton v. Warren, 1 M. & W. 466; 46 R. R. 368; Clark v. Royston, 13 M. & W. 752; Wilkins v. Wood, 17 L. J. Q. B. 319; Woodfall, 16th ed. 186. Chap. IV. Waste in buildings. by injunction (1). So also the sowing of lands with pernicious crops, such as mustard, is waste, and will be restrained (m). The obligation to cultivate lands according to the custom of the country does not apply to a garden or meadow let with a gentleman's residence (n). Waste in houses or buildings consists either in pulling them down or in suffering them to go to decay (o). The law of waste extends not only to dwelling-houses, but to every description of buildings, such as outhouses and barns (p). An alteration of buildings which changes their nature and character is waste, even although the value of the premises be thereby increased. Thus, the converting two chambers into one, or è converso, or the converting a hand-mill into a horse-mill, or a corn-mill into a fulling-mill, or a malt-mill to a corn-mill, or a logwood-mill to a cotton-mill, have been held to be waste (q). So also the conversion of a private house into a shop is waste (). So also may the building of a new house, where there was one before, be waste, if it impair the evidence of title (s). In Smith v. Carter (t) the Court restrained a man from pulling down a house and building another which the landlord objected to. "It is not sufficient," said Lord Romilly, M. R. (u), "that the house proposed to be built is a better one. The landlord has a right to exercise his own judgment and caprice, whether there shall be any change: if (1) Pulteney v. Shelton, 5 Ves. 147, 260, n.; v. Onslow, 16 Ves. 173; Kimpton v. Eve, 2 V. & B. 349; 13 R. R. 116; Pratt v. Brett, 2 Madd. 62; 17 R. R. 187; Walton v. Johnson, 15 Sim. 352. (m) Pratt v. Brett, 2 Madd. 62; (n) Johnstone v. Symons, 9 L. T. (0) Co. Litt. 53 a. See Kimpton 13 R. R. 116. (p) Doe v. Earl of Burlington, 5 B. & Ad. 507; 39 R. R. 549. (2) Co. Litt. 53 a; Green v. Cole, 2 Willm. Saund. 228; City of London v. Graeme, Cro. Jac. 182; Brydges v. Kilburn, cit. 5 Ves. 689; 5 R. R. 146; Hunt v. Browne, Sau. & Sc. 191; but see Grand Canal Co. v. McNamee, 29 L. R. Ir. 131 (C. A.). (r) Bonnett v. Sadler, 14 Ves. 526; 9 R. R. 341; Doggett v. Curnow, 1 Set. 553; Maunsell v. Hort, 1 L. R. I. 88. (s) Co. Litt. 53 a; 1 Lev. 309; S. C., Cole v. Green, nom. Cole v. Forth, 1 Mod. 94. But see Jones v. Chappell, 20 Eq. 539. (t) 18 Beav. 78. (u) Ib. |