A few illustrations from comparatively recent authorities will enable us to understand the modern signification given to the term "mineral" by the English courts. In Midland Railway v. Checkley,1 Lord Romilly, master of the rolls, said:

"Stone is, in my opinion, a mineral, and, in fact, "everything except the mere surface which is used "for agricultural purposes. Anything beyond that "which is useful for any purpose whatever, whether "it is gravel, marble, fire-clay, or the like, comes within "the word 'mineral,' when there is a reservation of "the mines and minerals from a grant of land."

In Midland Railway Co. v. Haunchwood B. & T. Co.,2 Mr. Justice Kay expressed the view that "minerals" meant, primarily, all substances (other than the agricultural surface of the ground) "which may be got for "manufacturing or mercantile purposes, whether from a mine, as the word would seem to signify, or such as "stone or clay, which are gotten by open working.”

In the leading case of Hext v. Gill, the house of lords announced the rule that a reservation of "min"erals" includes every substance which can be obtained from underneath the surface of the earth 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."

In Attorney-General v. Welsh Granite Co.," Lord Esher, master of the rolls, said:

"The many cases which have been cited go to estab"lish the definition, especially Attorney-General v.

' (1867), L. R. 4 Eq. C. 19.

(1882), L. R. 20 Ch. D. 552.

3 (1872), L. R. 7 Ch. App. 699.

This doctrine was approved and followed in a later case (AttorneyGeneral v. Tomline (1877), L. R. 5 Ch. D. 750).

5 (1887), 35 W. R. 617.

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"Mylchreest,' and Hext v. Gill, where Mellish, L. J., states the result of authorities. It is evident from "these cases that 'minerals' means substances which "can be got from beneath the surface, not by mining "only, but also by quarrying, for the purpose of "profit."

In Magistrates of Glasgow v. Farie, before the house of lords, involving the interpretation of a reservation in an act of parliament authorizing the construction of water-works, wherein it was provided that the undertakers of the project "shall not be entitled to any mines "of coal, ironstone, slate, or other minerals under any "land purchased by them," Lord Herschell thus announced his view:

"I think the reservation must be taken to extend to "all bodies of mineral substances lying together in seams, beds, or strata, as are commonly worked for profit." 3

In Loosemore v. Tiverton and North Devon Ry. Co.,* Mr. Justice Fry, following Hext v. Gill, says:—

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"There being no such restrictive context in the pres"ent case, the inquiry is whether the clay which was got out was clay which could be worked for a profit." Lord Halsbury, in the Farie case (supra), criticises the doctrine of Hext v. Gill. He says:

"In the first place, it introduces as one element the "circumstances that the substance can be got at a profit. It is obvious that if that is an essential part "of the definition, the question whether a particular "substance is or is not a mineral may depend on the state of the market; and it may be that a mineral one "year is not a mineral the next."

1(1879), 4 App. C. 294.

Waterworks Clauses Act (1847), 10 & 11 Vict. c. 17.
L. R. 13 App. C. 685.

(1882), L. R. 22 Ch. D. 25.

Lord Herschell, in the same case, thus expresses his views:

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"In its widest significance the word 'mineral' probably means every organic substance forming a part of "the crust of the earth other than the layer of soil which "sustains vegetable life. In some of the reported cases "it seems to be laid down or assumed that to be a "mineral a thing must be of commercial value or work"able at a profit. Be that as it may, it has been laid "down that the word 'minerals,' when used in a legal "document, or in any act of parliament, must be under"stood in its widest signification, unless there be some"thing in the context, or in the nature of the case, to "control its meaning.”1

Of course, the element of profitable working is in no sense a part of the definition of the word in its primary or etymological sense.

While these criticisms of Lord Herschell are plausible when the primary or etymological signification of the word is considered, yet the doctrine of Hext v. Gill and the later cases following it may be fairly said to present a reasonable definition in the light of the progressiveness of the age and advancement in the natural sciences, with which the courts seem to have kept pace.

This element of commercial value, which to a large extent controls the acquisition of mining titles in the United States, is by no means new. The German codes contained a limitation prohibiting the prospector from claiming mineral or ore which did not offer the basis for practical and lucrative mining or metallurgical operations. Under the French and Belgian systems, before a mining concession could be obtained, it was necessary "to ascertain whether the land contains a layer which is susceptible of a profitable working.” 2

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1 Magistrates of Glasgow v. Farie (1888), L. R. 13 App. C. 689-690. 'Halleck's De Fooz on the Law of Mines, p. 110.

Lindley on M.-9

In Sweet's dictionary of English law,' we find the following definition :—

"In the most general sense of the term, minerals are "those parts of the earth which are capable of being got from underneath the surface for the purpose of 66 profit." 2

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91. English rule of interpretation. Mr. Stewart enunciates certain rules as being sanctioned by current authority in England and Scotland, governing the construction of the term "mineral." These are as follows:

"First-The word 'mineral,' when used in a legal "document or in an act of parliament, must be under"stood in its widest signification, unless there be some"thing in the context or nature of the case to control "its meaning.

"Second-The meaning of the word 'mineral,' "though not easily restricted, yields to the context "when the relative positions of the parties interested, "their intention, or the substance of the transaction so "indicates.

"Third-In doubtful cases, the custom of the district, "or such usages without which a deed or statute would "be inconsistent, may limit the word 'minerals.'

"Fourth-Where the terms 'mines' and 'minerals' "are both used in the same deed or statute, the word "'minerals' is not on that account to suffer limitation "of its meaning." 3

In treating of the rules governing the interpretation of American statutory law, we will have occasion to recur to the foregoing.

'London, 1882.

This definition was also adopted in Rapalje and Lawrence's law dictionary, published in America the following year. Many of the English cases are cited in Murray v. Allard, 100 Tenn. 100, 66 Am. St. Rep. 740, 43 S. W. 355.

Stewart on Mines, pp. 10-13.

292. Substances classified as "mineral" under the English decisions. -Before leaving the subject of the English law and decisions, it is not out of place to enumerate some of the substances which have been adjudicated to be within the term "mineral."

It is hardly necessary to mention gold, silver, the common metals, or coal, as they fall within the earlier definition of the term, and were usually obtained through underground excavations. In addition to these, the following substances have been successively held to be minerals:

Beds of stone, obtained either by mining or quarrying;1

Stone, obtained by quarrying;

3

Stone, for road-making and paving; 3

Freestone (sandstone); *

'Earl of Rosse v. Wainman (1845), 14 M. & W. 859; S. C., 10 Morr. Min. Rep. 398-construing act of parliament (55 Geo. III, c. 18-inclosure act) reserving to the lords "all mines and minerals."'

* Micklethwait v. Winter, 6 Exch. 644.

'Midland Railway v. Checkley (1867), L. R. 4 Eq. C. 19.

Reservation in canal act (1796) of the mines and minerals within and under the lands through which the canal was to be made. In this case the master of the rolls said that every species of stone, whether marble, limestone, or ironstone, came within the category of "minerals."

In Bell v. Wilson (post), the vice-chancellor said that in strictness the term "mineral" comprises chalk, slate, and all kinds of stone, whether freestone, sandstone, or granite.

In Adjutant-General v. Welsh Granite Co. (1887), 35 W. R. 617-construing inclosure act (1812), similar to that considered in Rosse v. Wainman (supra),—it was held that the term "mineral" included granite.

'Bell v. Wilson (1865), 2 Drew. & S. 395; S. C. on appeal, L. R. 1 Ch. App. 303-construing an exception in a lease of "mines and seams of "coal and other mines, metals, or minerals, as well opened as not "opened."

Jamieson v. North British Ry. Co., 6 Scot. L. Rep. 188-construing Scotch railway clauses act, which is identical with English act.

Glasgow and S. W. Ry. Co. v. Bain (1893), 21 R. 134; Mawson v. Fletcher (1870), L. R. 6 Ch. App. C. 91, 94.