case its grantee gets the minerals, subject to the easement or estate, in certain cases elsewhere shown,' of the right of an adjoining proprietor to penetrate his ground in following the vein on its downward course. Manifestly, in the United States, the same doctrine must apply, as to all lands occupied as public streets, which obtains in England. And in such case, where the title has never passed from the United States or the state, as the case may be, the minerals under the street must belong to the state or United States in virtue of its sovereignty. Where, however, the ultimate fee of the street or road-bed, as the case may be, is in a proprietor other than the occupant, it would follow that the owner of the fee in all cases would own the underlying mines. And as to mines beneath navigable river beds, there is undisputed authority from very early times that they belong to the sovereign. There are cases authorized by law, which are fully considered elsewhere in this work, where minerals are reserved out of a patent granted by the United States. But the United States parts with the title to mineral lands as such in only one way. 16. No regalian right in the United States - Distinction between regalian right and sovereign control.- A distinction exists, and should be observed, between ultimate 1 Post, Part XI, ch. I. 2 BL. Com., p. 18, vol. 2; Shep. Touch., p. 90; Broom, Leg. Max., p. 395; Rush v. French, 1 Ariz. 99, 25 Pac. Rep. 816. 32 Bl. Com., p. 18. See also Grand Rapids Ice & C. Co. v. South Grand Rapids Ice Co., 102 Mich. 227, 60 N. W. Rep. 681; Pittsburg & L. A. L. Co. v. Cleveland Iron M. Co. and Lake Superior Iron Co., 118 Mich. 109, 76 N. W. Rep. 103; s. c., dismissed for want of jurisdiction, 178 U. S. 270. Davis v. Weibbold, 139 U. S. 507; Colorado C. & I. Co. v. United States, 123 U. S. 307; Butte City Smoke House Lode Cases, 6 Mont. 397, 12 Pac. Rep. 858; Samuel W. Spong, 5 L. D. 193; Cleghorn v. Bird, 4 L D. 478; Kings County Com'rs v. Alexander, 5 L. D. 125; Dughi v. Harkins, 2 L. D. 721. See also post, Part X, ch. VI. 5 Deffeback v. Hawke, 115 U. S. 392; Steele v. St. Louis S. & R. Co., 106 U. S. 449; Witherspoon v. Duncan, 4 Wall. 218; Davis v. Weibbold, supra. ownership and right to govern, on the one hand, and the exercise of regalian right, after possession and title is parted with, on the other. The former exists in the United States, the latter does not. The ownership, as well as the manner of exercising control, of mineral lands, is regulated in the United States by statute. Nothing contained in this section or the two preceding it should be so construed as to indicate the existence of a policy on the part of the United States to reserve the minerals out of any grant except as authorized by statute, or in pursuance of colonial grants containing provisions in the nature of covenants running with the land. Neither regalian right, nor anything similar, has ever existed in or been asserted by the United States. While it has sovereign authority, and the power to enact such statutes as congress in its wisdom sees fit, within the limits of the constitution, its right is dependent upon and controlled entirely by statute.* ARTICLE E. Of the General Nature of the Tenure of Mineral Lands Other Than Royal Mines-And Herein of Allodial Title, and of Customary Lands - Likewise the Early Laws and Policy of the States. § 17. Limitations in England upon regalian right, or as to royal minesCustomary and copyhold lands. 18. Copyhold lands-Minerals not generally distinct from inheritance. 19. Custom against royal mines in Cornwall and Devon - Early statutes against. 20. Recent acts-Enfranchisement of copyhold lands. 21. Right of entry into reserved mines. 22. Similarity to feudal tenure as to mines. 23. Feudal tenure. 1See authorities cited ante, § 15, A 14, notes 4 and 5. See also United States v. Parrott, 1 McAll. 271, 27 Fed. Cas. 416 (No. 15,998); Glenn v. United States, 13 How. 260; Lee Doon v. Tesh, 68 Cal. 48, 8 Pac. Rep. 621; United States v. Castillero, 2 Black 1. ?Lee Doon v. Tesh, supra; Weeks, Mineral Lands, § 2; United States v. Parrott, supra; United States v. Gear, 3 How. 119. 3 United States v. Castillero, supra; ante, § 14. 4 See authorities cited to note 1, ante. See also § 15 and notes, ante. 24. Examples of sovereign authority asserted by the states. § 17. Limitations in England upon regalian right, or as to royal mines-Customary and copyhold lands. It is well settled that certain copyhold and other customary lands in England are exempt from the general operation of the common-law rights and obligations, and are controlled solely by customs of the manor and the judgments of courts, a copy of which furnishes the paper title of the copyholder.1 And in the absence of special customs to the contrary, the right of property in minerals, in copyhold and customary lands, is vested in the lord of the manor, and the mineral right is vested in the tenant. Consequently, in such cases, neither the lord nor the tenant can exercise any right to work them without mutual consent; and there are cases which hold that this right in the copyholder is exclusive. 2 It has been said that the lord of the manor may claim minerals against the crown, a copyholder as against the lord of the manor, and even commoners may have the right to dig gravel, but, it seems, not to take mineral to the exclusion of the lord.1 But a custom to take one sort of minerals is no evidence of a custom to take any other sort.5 12 Bl. Com. 99, 100, 149; Pollock & Maitland, Hist. Eng. Law, vol. 1, pp. 342, 384, 387; Co. Inst. 596, Law 1, ch. 9; Bainb. Mines, 1 Am. (from 3d London ed.), ch. 2, § 1; 1 Am. ed., p. 4, note; Id., pp. 38, 112; Collier, Mines, p. 79, § 5; Earl of Cardigan v. Armitage, 3 B. & C. 158. 2 Scriven, Copyholds, p. 509; Bourne v. Taylor, 10 East, 189; Rutland v. Green, 1 Ken. 57, 1 Sid. 152; Player v. Roberts, W. Jones, 243; Gilbert, Tenures, 327; Co. Inst. 62a, Law 1, ch. 10, § 80; Bishop of Winchester v. Knight, P. Wms. 406, per Lord Kenyon; Townley v. Gibson, 2 T. R. 704; Whitechurch v. Hol worthy, 19 Ves. 214, 4 M. & S. 304; Gray v. Northumberland, 13 Ves. 236, 17 id. 281. See also Lewis v. Branthwaite, 2 Barn. & Ad. 437; Mitchell v. Dors, 6 Ves. 147. 3 Bowser v. McLean, 2 De Gex, F. & J. 415, 30 L. J. Ch. 273; Greathead v. Morley, 3 M. & G. 139, 10 L. J. (N. S.) C. P. 246. 4 Crown v. Lord Yarborough, 3 B. & C. 91, 5 Bing. 163; Roe v. Brenton, 8 B. & C. 766, 3 Man. & Y. 133; Hayden v. Smith, 13 Co. 68; Hoskins v. Robbins, 1 Mod. 74; Potter v. North, 1 Ventr. 123; North v. Coe, Vaugh, 251. 5 Curtis v. Daniel, 10 East, 273. § 18. Copyhold lands - Minerals not generally distinct from inheritance.- Certain rights have grown out of custom in parts of England, relative to copyhold lands, which create a well-defined distinction between them and ordinary public lands or crown lands. With reference to copyhold lands, it may be said that when the minerals contained therein belong to the lord of the manor they do not form an inheritance distinct from the freehold, but are a part of the demesne of the manor; and in the grant of wastes, or in the enfranchisement of copyhold lands, the mines and minerals will not be reserved by the common reservation of all seigniories, royalties and jurisdictions. The minerals must be mentioned in express terms, or they will become the property of the owners of the surface, and part of the same inheritance. But a copyholder may, by custom, ac quire the right to take and use minerals.2 So it is that by presumption of law the lord of the manor is entitled to the exclusive property in the soil of all common and waste lands of the manor, and, consequently, to all mines and minerals therein.3 19. Custom against royal mines in Cornwall and Devon Early statutes against.-Thus it is that in consequence, perhaps, of the abuse of the royal prerogative, certain customs from small beginnings had grown up, whereby certain lands, denominated customary and copyhold lands, not all copyhold lands, however, had become exempt from the operation of the royal prerogative, and in the counties T. R. 701. 1 Bainb. Mines (1st Am. ed.), p. 6 v. Lowther, 2 Dick. 677; Horcy v. and note; Townley v. Gibson, 2 Hagberton, Cro. Jac. 229; Cooper v. Marshall, 1 Burr. 265; Sadgrove v. Kerby, 6 T. R. 486; Filewood v. Palmer, Mos. 169, 5 Vin. Abr. 7; Rogers v. Taylor, 1 H. & N. 828; Arlet v. Ellis, 7 B. & C. 336; Potter v. North, 1 Saund. 347; Hoskins v. Robbins, 1 Mod. 74; Co. Lit. 122a; Kentick v. Pargiter, Cro. Jac. 208; Douglass v. Kendall, Yelv. 256. Hayden v. Smith, 13 Co. 68, Godb. 173; Stephenson v. Hill, 3 Burr. 1278; Doe v. Huntington, 4 East, 271; Brown v. Rawlins, 7 East, 409; Duke of Portla v. Hill, 35 L. J. 439, L. R. 2 Eq. 765. 'Dallas' Notes to Bainb. Mines (1st Am. ed.), p. 7. See also Bolton of Cornwall and Devon particularly, these customs had become immemorial; and with reference to mines and minerals therein it could not be exercised.1 The expansion, too, of the claim of prerogative, extending, as we have shown, in some cases to other minerals, and to mineral ores containing other than the royal metals, provided the royal metals were also found therein in quantities to justify working, led to the organization in the time of Queen Elizabeth of a society having for its purpose the restriction by statute of the royal prerogative and of the management of royal mines. It gave the crown, or those claiming under it, a pre-emption right of purchase of minerals at fixed rates, within a specified time, otherwise the right was defeated. It was expressly provided that it should not interfere with the rights of the tinners of Devon and Cornwall. Mr. Bainbridge, speaking of this statute, says: "It should be observed, in the first place, that the right of the crown to all mines of gold and silver in which the ores of those metals are found, in connection with other substances than copper, tin, iron or lead, remains unaffected by these statutes. And that the presence of any of the four metals just mentioned would seem to be sufficient to protect the ore against the claims of the crown."2 20. Recent acts - Enfranchisement of copy hold lands. While there have been several acts of parliament during the reign of Queen Victoria for the avowed purpose of enfranchising copyhold lands, it is a noteworthy feature in them all that so firm has the customary right become fixed in 1 Bainb. Mines (1 Am. from 3d London ed.), p. 30; Doe v. Huntington, 4 East, 271; Collier, Mines, pp. 3, 4; Gilbert, Tenures, 327; Brown v. Rawlins, 7 East, 409; Rutland v. Green, 1 Keen. 507; Bourne v. Taylor, 10 East, 189; Winchester v. Knight, 1 P. Wms. 406. 2 Bainb. Mines, pp. 34-36. 34 & 5 Vict.. ch. 35, §§ 39, 82, 84; 14 & 15 Vict., ch, 95, referring to High Peak Mining Customs and Mineral Courts Act, 15 & 16 Vict., ch. 51, § 48; Derbyshire Customs and Mineral Courts Act, 21 & 22 Vict., ch. 94; 24 & 25 Vict., ch. 40: 32 & 33 Vict., ch. 19. |