and was not part of the copyhold estate called Greys. Then it was argued on behalf of the plaintiffs that because the parcels of the deed of 1799 include a parcel of land running with Garka Moor containing twenty-seven acres, and these twentyseven acres cannot be found in the inclosed part of Greys, therefore twenty-seven acres (although how we are to get the bounds I do not know) are to be taken out of the moor. That I think is not the true construction of the deed. The deed. professes to convey "all that customary or copyhold tenement called Greys," and the rest is simply a description of what is contained in Greys, and it is said besides: "which said tenement called Greys is now held for the life of John Hext gentleman, under the yearly rent of 15s. 3d. by copy of court roll." It appears to me that nothing but what was part of the customary or copyhold tenement called Greys could pass under that, notwithstanding there might be any misdescription in the parcels. If the tenement called Greys was entitled to an exclusive right of common over a portion of the moor which by mistake had been treated as if it were parcel of the copyhold tenement, the consequence would be that the exclusive right of common would pass, but the property in the soil would not pass. Therefore, upon the whole, I come to the conclusion that the plaintiffs have not made out their title to what they call, as I think erroneously, the uninclosed part of Greys, and therefore cannot have any relief respecting it, the bill not being framed for raising the question whether the getting china clay can be complained of by persons only entitled to rights of common over the land.

Then I come to the question whether the plaintiffs are entitled to relief respecting the inclosed part of Greys. Mr. Karslake raised the objection that the defendants have not threatened to get, and have not-except by mere accident— got any china clay in Greys; and therefore that this court ought not to grant an injunction, or enter into the question whether they are entitled to get it or not.

The facts upon this part of the case are these: It appears that the first two defendants, as lords of the manor, have let to the two other defendants the right to get china clay in the waste and over a large portion of the estate called Greys, and therefore they profess to exercise the right of ownership over it, and they have professed to give them the power to get china clay from Greys in the ordinary way in which china clay is got in that neighborhood. It appears that the lessees have entered on one occasion into the estate called Greys with the intention of getting china clay, though they did not get any, and did not remain there. The bill being filed and the question raised, the defendants being sought to be restrained from getting china clay, they say: "We have a title to get china clay out of the estate called Greys, and we are entitled to get it in the way in which it is ordinarily got; but we have no present intention of getting it." We are of opinion that after this it is idle for the defendants to say they do not threaten to get the china clay under the inclosed part of Greys, and to contend that this court is precluded from deciding the question whether they are entitled to get it in the way in which they say they have a right to get it.

That brings us to the real question on the merits, whether the defendants, having had the manor of Treverbyn Courtenay conveyed to them, have a right to get the china clay under the reservation and exception in the deed of 1799.

The first question to be determined is whether the china clay is within the exception of "mines and minerals." Now china clay is thus described:-(His Lordship here read the account of china clay, and the mode of getting it, from the plaintiffs' evidence, as above.)

Is this china clay reserved under the exception of "mines and minerals"? There was a great deal of discussion before us as to the meaning of the word "mines," whether it is confined to underground working, or may possibly extend to open working, or whether it does

not apply to the workings at all, but in this sort of reservation means the metal, the veins, and seams themselves, which are in a secondary sense called "mines." I think that it is not necessary here to go into those questions, for whatever may be the meaning of the word "mines” when used alone, it is here combined with the more general word "minerals," and the authorities seem to show that where there is an exception of "mines and minerals," the putting the word "mines" before "minerals" does not restrict the meaning of the word "minerals." Many authorities, some at law and some in equity, have been brought before us to show what is the meaning of the word "minerals." But the result of these authorities, without going through them, appears to be this: That a reservation of "minerals" includes every substance which can be got 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. Ought it to have a more limited meaning in the present case? The circumstances, as far as they are material to be stated, are these: The seller was the lord of the manor. What he sold was the freehold of a copyhold tenement. Now the lord of a manor is, beyond all question, entitled to all the minerals, in the most general sense of the word, under a copyhold tenement. There is nothing to be got out of the soil and sold for a profit which the copyhold tenant, in the absence of some special custom, is entitled to get without the permission of the lord; the property of it is in the lord, although it is true that, in the absence of special custom, the lord cannot get it without the license of the tenant. The position of the parties, therefore, furnishes no reason for restricting the meaning of the word "minerals," and there being no special words before "mines and minerals" which might furnish an argument for restricting them to things ejusdem generis, I am of opinion that the surface, and all profit that can be got from cultivating the surface, or

building on it, or using the surface, is intended to be conveyed, but that the right to everything under the surface, and to all profit that can be got from digging anything out from under it, is intended to be reserved. I am therefore of opinion that china clay is included in the reservation. The only argument against this is that china clay cannot be got without destroying the surface, and that it could not be intended to give power wholly to destroy the surface without compensation. The case of Bell v. Wilson, Law Rep. 1 Ch., 303, appears, however, to be a direct authority that the mere circumstance that a mineral cannot be got without destroying the surface, though it may be a very strong ground for holding that the owner of the mineral is not entitled to get it, is not a ground for straining the meaning of the word "mineral." In that respect the lords justices differed from Vice-Chancellor Kindersley, and we are bound by their decision.

Then we come to the important question, whether there is power to get this china clay in the only way in which, according to the concurrent testimony of all the witnesses, it can be got, by a process which utterly destroys the surface of the land. A great number of cases were cited to us upon that point, in none of which was the language exactly similar to that in the case before us, and they must be referred to merely for the purpose of getting a principle from them. Now the cases show that where the ownership of minerals is separate from the ownership of the surface, prima facie the owner of the surface is entitled to have his surface supported by the minerals. That is not confined, as contended by the solicitor-general, to the case where the court has not before it the instrument under which the owner of the minerals derives his rights, but it also applies to cases where the court has the instrument before it, for the purpose of construing the instrument, to this extent, that prima facie the right to support exists, and the burden lies on the owner of the minerals to show that the instrument gives him authority to destroy what is described by

the judges as the inherent right of a person who owns the surface apart from the minerals. The question is, whether the words of the reservation in the present case mean that the ownership of the surface is altogether to be subject to the ownership of the minerals, so that the owner of the minerals may do whatever is necessary for the purpose of enabling him to get them, although it may of necessity utterly destroy the surface; or do the words, according to their true construction, only give a right, in the nature of an easement, to go upon the surface and dig through it for the purpose of getting at the minerals underneath? In my opinion, the short and ambiguous words of this reservation, according to their fair construction, only give a right to create what I may call temporary damage, and do not authorize the owner of the minerals absolutely to destroy or to cause a serious continuous and permanent injury to the surface.

Now, if we refer to the authorities, we find that there are several cases relating to the right of the owner of minerals to let down the surface in the course of getting the minerals by pure mining-cases in which the power of getting the minerals has been given in far stronger language than it is in the present case, where, nevertheless, the courts held that he was not entitled to get the whole of the minerals if that involved the destruction of the surface, but that in getting them he must have regard to the rights of the owner of the surface to support by the minerals. In Harris v. Ryding, 5 M. & W., 60, the power was this: "With full liberty of ingress, egress, and regress to come into and upon the thereby appointed and granted and released premises to dig, &c., the said mines, &c., and every part thereof, and to sell and dispose of, take and carry away, whatever might be there found at their or his respective wills and pleasures; and also to sink shafts, &c., for the raising up, working, carrying away, and disposing of the same or any part thereof, making a fair compensation to T. P. (the grantee) for the damage to be done to the surface of