tenant for

minerals; and on account of this possessory interest the Damages to tenant may maintain trespass against any person who wrongful by means of an entry made on the adjoining lands takes working. away the minerals (t). If the lord takes the minerals. without obtaining the consent of the tenant he will be liable to him in damages. The measure of damages will Measure of damages. be the net return from the sale of the minerals, less such a sum by way of profit as would induce a third person to undertake the working of the minerals. This rule was thus stated by Fry, J., in Attorney-General v. Tomline (u). "The copyholder is in the position of being able to say to the lord of the manor you shall never get the minerals. His consent must, therefore, be purchased from him by the lord if he wishes to get them. Everything, therefore, which arises from the sale of the minerals, and which is not necessary to repay the outlay for the working and to induce a third person to undertake the working, would naturally come to the person who can prevent the minerals from being dug (x). He has an absolute veto. The value of that veto appears to me to be the value of the minerals, less so much money as would induce a third person to get them, that is, the measure of damages would be the net returns from the sale of the minerals, less such a sum by way of profit as would induce a third person to undertake the enterprise." By special custom copyholders of inheritance, or those Special who have an equivalent estate, as tenants for lives with right of renewal or of nominating the successor, may be the absolute owners of the trees upon their lands, or the minerals upon the surface or in quarries and mines, and in such a case they may cut timber for sale, or open mines and quarries (y). But such a custom cannot be sustained

(t) Lewis v. Branthwaite, 2 B. & Ad. 437.

(u) 5 Ch. Div. 750, 768. (x) The minerals in this case were coprolites.

(y) Rowles v. Mason, 1 Brownl. 132; S. C. 2 Brownl. 85, 192; Blewett v. Jenkins, 12 C. B. N. S. 16.

customs.

by copyholders for lives with no right of renewal (≈). Under customs of this kind, copyholders have been held entitled to take for their own property the copper, coal, brick-earth, sand, and other metalliferous substances, ores and minerals, within their copyhold tenements (a). And it has been held, that a custom empowering the tenants to take one sort of mineral might possibly be evidence of their right to take minerals of other kinds (b). It is provided by the Prescription Act, 1832 (c), that no claim, which can be lawfully made at the common law by custom, prescription, or grant, to any profit in another's land, where such profit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of 30 years before a suit or action, shall be defeated or destroyed by showing only that such profit was first taken at any time prior to that period, but nevertheless that the claim may be defeated in any other way, by which it might have been defeated at the time of the passing of the Act; and when such profit shall have been so taken for a period of 60 years before the suit or action, the right is to be deemed absolute, unless it appears that the same was taken by some consent or agreement expressly made or given for that purpose by deed or writing. This provision has been held not to apply to the case of copyholders claiming minerals or other profits in their own tenements by custom (d). As will appear later (e), there is no rule as to the extent of evidence which is required to establish a custom, or from which the presumption or inference of the fact of a custom may be rightly drawn. "It is the province of a jury to draw

(z) Mardiner v. Elliott, 2 T. R. 746.

(a) Hanmer v. Chance, 4 De G. J. & S. 626; Salisbury (Marquis of) V. Gladstone, 9 H. L. Cas. 692; Wakefield v. Buccleugh (Duke of), L. R. 4 H. L. Cas. 377.

(b) Winchester (Bishop of) v. Knight, 1 P. Wms. 406; and see Curtis v. Daniel, 10 East, 273.

(e) 2 & 3 Will. IV. c. 71, s. 1. (d) Hanmer v. Chance, 4 De G. J. & S. 626.

(e) Post, c. x.

these conclusions of fact. There are several reported cases in which the Courts have refused to disturb the verdicts of juries as to a custom in a manor even when the evidence was very slender" (ƒ). But it must be remembered, that the evidence of user will not support the claim by custom, if it can be shown independently that the custom could not have had a legitimate origin, as being unreasonable under the circumstances, or did not in fact exist at some period since the commencement of legal memory (g). The absence of any mention of the right in a formal statement of the customs of the manor made under proper authority would upset the claim (). "If a custom existed at a particular time to give the tenants a right to the minerals, it is natural to expect that they would not omit it in an elaborate and minute statement of the customs "(). And in the same case it was said, even though there were instances of surrenders reserving minerals, surrenders of minerals separately, and several instances of working for minerals, that "if there be an agreement or acting by any of the copyholders, under circumstances which render it impossible to believe in the existence of the custom at the time when they so acted and agreed, that acting and agreement must be evidence whereby the jury would conclude (if it be proved to have occurred after legal memory) that the custom did not then exist, that it is not a custom from time immemorial, and that the subsequent usage is referable to usurpation and not to right" (j); and in the case of Portland (Duke of) v. Hill (k), where there was sufficient evidence to prove a custom of this kind if there

(f) Per Lord Westbury, L. C., in Hanmer v. Chance, 4 De G. J. & S. 626, 635; see Doe d. Mason v. Mason, 3 Wils. 63; Roe d. Bennett v. Jeffery, 2 M. & S. 92.

(g) See Tyson v. Smith, 9 A. & E. 406; Mill v. New Forest Commissioner, 18 C. B. 60.

(h) Anglesey (Marquis of) v.

Hatherton (Lord), 10 M. & W. 218; Portland (Duke of) v. Hill, L. R. 2 Eq. 765.

(i) Per Lord Abinger, C. B., in Anglesey (Marquis of) v. Hatherton (Lord), 10 M. & W. 218, 241.

(j) Per Alderson, B., Ibid. at p. 244.

(*) L. R. 2 Eq. 765.

were nothing to the contrary, the existence of a customary of the manor compiled within legal memory was held to be conclusive evidence against the existence of a custom to take minerals which was not mentioned therein.

Manorial Franchises.

It will be convenient to mention here some of the more important franchises and privileges which are not infrequently claimed by lords of manors, either by grant from the Crown, or by prescription through long enjoyment, and which may be exercised by them not only over the wastes but in some cases over the lands which are held or are parcel of the manor.

Free-warren.

Every lord of a manor has, by virtue of his ownership of the soil, the right to sport and shoot over the wastes of the manor, and to kill game there, subject to the provisions of the Game Laws, and by ancient reservation or custom he may have similar rights over the copyholds, which are parcel of his manor; and a compulsory enfranchisement of the copyhold will not deprive him of these rights without his express consent in writing (7); he has no right merely as lord, and in the absence of any right of free-warren, to sport over the freehold lands, which are held of the manor or are within its ambit (m). Lords of manors, however, frequently possess rights of free-warren, either by virtue of a grant from the Crown, or by prescription implying a grant (n). A grant of freewarren confers on the person entitled to it a right to preserve and keep, as his own property, the beasts and fowls of warren within certain limits, and to prevent all other persons from killing or taking them (o). According

(7) 15 & 16 Vict. c. 51, s. 48. (m) Keble v. Hickringill, 11 Mod. 74; Bruce v. Helliwell, 5 H. & N. 609, 620.

(n) The Case of Monopolies, 11 Rep. 84 b, 87 b; Beauchamp (Earl) v. Winn, L. R. 6 H. L. 223, 238. (0) 2 Blackst. Comm. 39.

to Lord Coke, the term beasts of warren include hares, conies, and roe-deer, while among fowls of warren are comprised partridges, quails, rails, pheasants, woodcocks, mallards, and herons (p); but in Barrington's Case (q), it was ruled that the only beasts and fowls of warren are hares, conies, pheasants, and partridges. It has been expressly decided that grouse are not fowls of warren (r). A grant of free-warren usually gives the right to the grantee "within all his demesne lands" in the manor. The effect of these words was considered in the case of the Attorney-General v. Parsons (s), and in delivering the judgment of the Court of Exchequer Lord Lyndhurst, C.B., said, "though the word 'demesne' may in some cases be applied to any fee simple lands a man holds, yet it is more correct and usual to apply it to the lands of a manor, which the lord of that manor either actually has or potentially may have in propriis manibus." If the person having the right of free-warren alienes his lands, but reserves the free-warren to himself, such a reservation would be effectual, and the free-warren would then be a warren in gross, but if the lands are conveyed without any reservation or express mention of the right, it will be extinguished (t). A conveyance of the manor, "together with the appurtenances," will not carry a right of freewarren (u), unless the right of free-warren has actually become appurtenant by prescription (~).

Questions as to the existence of rights of free-warren frequently arise in cases where the waste lands of a manor have been inclosed under the provisions of an Inclosure Act, and have been allotted in severalty. It may be said to be the general rule that when a part of a waste is