of coal, and mines of coal in and under the said closes in which &c., and full and free liberty to enter upon the said closes in which &c., to dig, &c., the same, as claimed by the defendants, are corporeal hereditaments, a title to which cannot be made by prescription. As to the third plea; that the defendants claim a corporeal hereditament, and that to such a claim the stat. 2 & 3 Will. 4, c. 71, does not apply. W. H. Watson, in support of the demurrer.―These pleas are clearly bad, for no right, whether prescriptive or by force of the stat. 2 & 3 Will. 4, c. 71, can be claimed in other than incorporeal hereditaments. [Parke, B.-No doubt, you can only prescribe for what lies in grant.] In 2 Bl. Comm. 264, it is said-" Secondly, as to the several species of things which may or may not be prescribed for, we may in the first place observe, that nothing but incorporeal hereditaments can be claimed by prescription, as a right of way, a common, &c. ; but that no prescription can give a title to lands and other corporeal substances, of which more certain evidence may be had." So, in Roll. Abr., Prescription, (B.), it is said—"No title to land can be claimed by prescription." This position being therefore assumed as indisputable, the only question in the present case is, whether the right here claimed is more than a mere incorporeal hereditament. Undoubtedly, a mere license to get coal, which does not oust the grantor of his own right to dig for coal in the same land, is a mere incorporeal right, and lies in grant: Earl of Huntingdon and Lord Mountjoye's case (a), Doe d. Hanley v. Wood (b), Chetham v. Williamson (c). But a mine or vein of coal, which the pleas here state Richardson, and those through whom he claims, to have been entitled to, is part and parcel of (a) 4 Leon. 147. (b) 2 B. & Ald. 724. (c) 4 East, 469. Exch. of Pleas, the inheritance, and is a matter whereof a person is seised 1843. WILKINSON ย. PROUD. in fee, and it lies in livery and not in grant. [Parke, B.— It would be a matter of some difficulty to make livery of seisin of a stratum of coal lying under the soil.] A communication might be made by digging down to it. [Alderson, B.-Possibly a symbolical delivery on the surface of the land might be sufficient.] A party entitled to a vein or seam of coal is always alleged in pleading to be seised in fee of the coal: see Bourne v. Taylor (a), and Dand v. Kingscote (b). In Stoughton v. Leigh (c), it was held that a grant which authorized the grantee to take the whole stratum of a mine was a grant of a real hereditament in feesimple, whereof the wife was dowable. Lord Mansfield there says, "The grant of the stratum might be taken to be a grant in fee-simple. In the course of the discussion, I was strongly struck with the argument used for the heir, that Lord Coke has, in 1st Inst. 32, enumerated all the species of inheritance of which a woman shall be endowed, and I thought it extraordinary that no mention should be made of mines. But upon referring to the passage, it appears to be no enumeration of all the things whereof a woman shall be endowed; nothing like it; in the thirtysixth section, upon which this is a commentary, Littleton says, the wife shall be endowed of all lands and tenements of which her husband was seised. Lord Coke says not a word to explain what is land or what is a tenement, thinking the import of those terms well known in the law." Trespass, or ejectment, will lie for a mine, although another has the surface. Andrews v. Whittingham (d), Commyn v. Kincto (e), Harebottle v. Placock (f). In Lewis v. Branthwaite (g), it was held that the possession of a mine is in (a) 10 East, 189. (e) Cro. Jac. 150. (g) 2 B. & Adol. 437. the copyholder, and not in the lord, and that the copy- Exch. of Pleas, holder might therefore maintain trespass for an entry upon it. Martin, contrà.-A transfer of an unopened mine of coal lies in grant and not in livery. The rule cited from 2 Bla. Comm. 264, is not borne out by the authorities referred to, to the extent there laid down. The authorities there mentioned, viz. Doctor and Student, Dial. 1, c. 8, and Finch, 132, only say, "that no prescription maketh a right in lands." The doctrine of prescription is founded on analogy to the stat. of Westminster 1, 3 Edw. 1, c. 39, whereby the time of limitation on writs of right was made to begin from the period of the return of Richard I. from the Holy Land, A. D. 1198. But until the stat. 32 Hen. 8, c. 2, land as well as incorporeal rights might be claimed by prescription. That statute enacted, "that no manner of persons should from thenceforth sue, have, or maintain any writ of right, or make any prescription, title, or claim of, to, or for any manors, lands, tenements, rents, annuities, commons, pensions, portions, corodies, or other hereditaments of the possession of his or their ancestor or predecessor, and declare and allege any further seisin or possession of his or their ancestor or predecessor, but only within threescore years next before the teste of the same writ, or next before the said prescription, title, or claim, so thereafter to be sued, commenced, brought, made, or had." Before the term of sixty years was fixed by this statute, the law of England was, that all evidence of title was lost in remote antiquity, and the only period of limitation upon the recovery in a real action was that beyond which it was supposed that "the memory of man was not to the contrary," viz. the reign of Richard I.: see Litt. s. 170. The reason why a man cannot prescribe for corporeal hereditaments is stated in Paramour v. Yardley (a), viz. because he (a) Plowd. 545 a. 1843. WILKINSON v. PROUD. 1843. v. PROUD. Exch. of Pleas, has a better title to them, by possession and visible enjoyment. That is a reason which is applicable only to the WILKINSON Surface: but a right to minerals which may or may not exist under the soil, is a right which lies in grant. It would be difficult, nay in many cases impossible, to give livery of seisin of a stratum of coal. As the right to mines has always existed, as distinguished from the right to the surface of the land, the conveyance of them must have been by grant, for livery of seisin is wholly inapplicable to them, at least in the case of unopened mines. In Shep. Touch. 96, (7th edit.), it is said,-" By the grant of mineras, or fodinas plumbi, &c. or mines of lead, the land itself will pass, if livery of seisin be made thereof; but otherwise it seems not, and then the grantee hath by the grant a power to dig only granted to him." Upon which, Mr. Preston remarks, "A mine may be a corporeal hereditament; for instance, if a mine be open, and granted, the grant is of a corporeal hereditament. In regard to mines not open at the date of the grant, this distinction (a distinction founded on principle), though no decision is found on the point, may be taken. The grantee has an incorporeal and not a corporeal hereditament; Doe v. Wood (a); an interest which would pass by grant without livery of seisin," &c. And the author proceeds to explain how ejectment lies for a mine which is open, and held under a right of mining. Ejectment, however, will lie for tithes, which are an incorporeal hereditament. The Case of Mines (b) is also an authority to shew that the right to minerals is one that lies in grant. See also Burton's Law of Real Property, p. 361. An unopened mine may be likened to the case of a grant of treasure trove, which may be claimed by prescription: Co. Lit. 114.b., e.; Com. Dig. Prescription, (C). In Seaman v. Vawdrey (c), the question was, whether a purchaser was entitled to compensation for a (a) 2 B. & Ald. 724. (b) Plowd. 322. (c) 16 Ves. 390. 1843. WILKINSON v. PROUD. right to salt-mines under the land, alleged to exist in cer- Exch. of Pleas, tain persons, but which had not been exercised for a hundred years; and it was held that, notwithstanding the nonuser, he was entitled to compensation, no adverse possession being alleged. [Parke, B.-It is not the right of getting the coal which is claimed here, but the right to the stratum of coal.] Why should not a man claim timber upon another man's land by prescription? Whether corporeal or not, it is equally a right in fee-simple: Stanley v. White (a). In Stoughton v. Leigh, the judgment expressly makes a distinction between opened and unopened mines. In Lord Mountjoye's case, the right claimed was only a right of getting the coals in common with the owner of the land, and not an exclusive right. But even if the Court should be of opinion that an unopened mine is not per se the subject of a claim by prescription, still these pleas are good, because they claim not the mines merely, but also the right of making shafts and adits, and erecting engines on the surface of the soil: and then, a part of the right being claimable by prescription, the pleas may set up a prescription for the whole. [Lord Abinger, C. B.-Suppose the right to the mines were granted, without the right to enter upon the land.] The grantee of the coals would be entitled to an incidental right to enter and get them. Earl of Cardigan v. Armitage (b). If a portion of an entire right must be claimed by prescription, there is no authority that a man may not prescribe for the whole of that entire right. Lord ABINGER, C. B.-I think this is clearly a prescription to land. A vein of coal is land, unless distinguished from the land by the deed of conveyance. I have little doubt that if Mr. Martin were to search the Year Books, he would find cases to shew that such a claim is contrary (a) 14 East, 332. (b) 3 B. & Cr. 197; 3 D. & R. 414. |