Property in trees

and mines.

fuel in the house. 3. Plough-bote, (or the liberty of taking timber or other wood for repairing waggons, carts, ploughs, and implements of husbandry), and 4. Hedge-bote (or "Hay-bote,") being the liberty of taking sufficient wood for making and repairing the walls, gates, hedges, fences, and enclosures.

Trees and Mines.

In the absence of a special custom the lord is the owner of all trees upon the copyhold land, and of all minerals upon the surface or in quarries or mines underground; but the tenant has a possessory interest, and will be protected against any invasion on the part of the lord (a). But the course of usage may show that in a particular manor the minerals belong to the lord without any possessory title in the tenant; and in the mining districts of the Northern Counties, where it is usual for the mineral strata to belong to separate owners, the presumption as to the owner of the surface having possession of all underground minerals is of much less force than elsewhere (). The lord may prove a right to enter upon the copyhold to dig for minerals, the usage showing what the nature of the original grant to the copyholder had been. But no claim of the lord to a privilege which would have destroyed the value of the original grant can be sustained. Thus it has been held, that the lord cannot

(a) Grey v. Northumberland (Duke), 13 Ves. 236; 17 Ves. 281; Hilton v. (Earl) Granville, 5 Q.B. 701.

(b) Barnes v. Mawson, 1 M. & S. 84.

set up a custom to dig minerals under the copyholds of the manor so as to let down the surface of the land (a).

By special custom copyholders of inheritance, or those 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 (b). But such a custom cannot be sustained by copyholders for lives with no right of renewal (c). Under customs of this kind, copyholders have been held entitled to take for their own property the copper, coal, brickearth, sand, and other metalliferous substances, ores and minerals, within their copyhold tenements. 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 (). It is provided by the Prescription Act, 2 & 3 Will. 4, c. 71, s. 1, that no claim, which can be lawfully made at the common law by custom, prescription, or grant, to any profit in any person'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

(a) Hilton v. (Earl) Granville, 5 Q.B. 701.

(b) Rowles v. Mason, 1 Brownl. 132; 2 Brownl. 85, 192. (c) Mardiner v. Elliott, 2 T.R. 746.

(d) Winchester (Bishop) v. Knight, 1 P.W. 406; see Curtis v. Daniel, 10 East, 273.

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 to apply to the case of copyholders claiming minerals or other profits in their tenements by custom (a). 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. 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 a minute statement of the customs" (b). And in the same case it was held, even though there were instances of surrenders reserving minerals, surrenders of min

(a) Hanmer v. Chance, 11 Jur. N.S. 397; see Portland (Duke) v. Hill, 2 L.R. Eq. 765.

(b) Anglesey (Marquis) v. (Lord) Hatherton, 10 M. & W. 241.

erals 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 within 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 right." And in a recent case (a), where there was evidence to prove a custom of this kind in the absence of evidence 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.

(a) Portland (Duke) v. Hill, 2 L R. Eq. 765.

CHAPTER VIII.

RIGHTS OF COMMON.

General rules as to rights of common-Claim by custom-Copyholders-Freeholders by prescription— Various kinds of common-Common of pasture appurtenant-In open fields-Common of estovers. Of taking underwood, &c.-Common of turbaryOf piscary-Common appendant of freeholders— Common of vicinage Requisites of custom to have common-Not to be uncertain or indefiniteProduce to be used on the copyhold-Restrictions on rights of commoners-Various examples-Common for new copyholds-Reserved rights of lord— Minerals-Trees-Rabbit warrens-Buildings on wastes Conflicting rights-How measured — Rights of commoner-How to be used-Agistment not allowed-Right not to be aliened-Remedies of commoner for injury Incidental rights Representative suits Extinguishment of rights. Effect of purchase of waste-Of enfranchisement. Right how revived Release-Abandonment Effect of non-user-Presumed release-Effect of