in question, either by the production of direct conveyances, or, in the absence of documentary evidence, by proof of acts of ownership and length of possession. But the mere reputation of ownership is not sufficient to rebut the presumption of law in favour of the owner of the surface. It must be accompanied with uniform usage and exercise of the right. But a right of this kind cannot be acquired by prescription, which is applicable only to incorporeal hereditaments. Prescription can confer the right to work minerals, but does not constitute the right of property in the minerals themselves, which are part of the land itself. The case of Wilkinson v. Proud (11 M. & W. 33) clearly marks this distinction. It decided that the right to a given substratum of coal lying under a close is a right to land, and cannot be claimed by prescription, though a right to take the coal is different. In that case Mr. Baron Parke said, “The claim set up is a prescriptive right not to take coal in the plaintiff's close, but to part of the soil itself, viz. a given substratum of coal lying under the close, which does not lie in grant, and cannot be claimed by prescription." These acts of ownership must be distinct from those over the surface, in order to support the right to a freehold. But they need not always be exercised in the identical lands that are in question, provided those lands can be shown to be within the operation of a custom prevailing over an ascertained district. The case of Barnes v. Mawson (1 Maule & Selwyn, 77) supplies an illustration of this point. It was an action of trover for coals. The question was, whether the lord of a manor was entitled to the

coals under a certain freehold tenement within the manor. He was allowed to show by parol evidence that there was a known distinction within the manor between the "old land” and the "new land," and that the plaintiff's land lay within the boundary of the new land; and also to show, by evidence of general reputation and acts of taking coal under the lands of other freeholders within the same boundary, that the right to the coals under the plaintiff's land was in the lord.

When the right to the minerals is vested in a person not entitled to the surface, and there has been no adverse possession or establishment of title on the part of any other persons by acts of ownership, the right. of possession will be held to continue in the original owner; and no presumption of waiver or grant will arise from the non-user of the right in favour of the owner of the surface. It has been said that there are many cases where, from non-user of a right, an inference of abandonment might fairly be made; but that does not apply to such a case as this. It is not generally true that the owner of mines works every mine which he has a right to work, and therefore the relinquishment of the right cannot be presumed from the non-exercise of it. It was well known that mines remain unwrought for generations, and that they are frequently purchased or reserved, not only without any view to immediate working, but for the express purpose of keeping them unwrought until other mines. should be exhausted, which might not be for a long period of time.*

* Seaman v. Vaudrey, 16 Ves. 390.

The Statute of Limitations, 3 & 4 Will. IV. c. xxvii., does not apply to the mere absence of the exercise of rights of possession by the real owner of mines, but to the adverse possession of others. By this statute the doctrine of non-adverse possession is done away, except in cases provided for by sect. 15; and an ejectment must be brought within 20 years after the original right of entry of the plaintiff (or of the party under whom he claims) accrued, whatever be the nature of the defendant's possession.

RIGHT TO MINERALS IN COPYHOLD LANDS.

As the copyholder has now acquired, by Act of Parliament, 21 & 22 Vict. c. xciv., an estate of inheritance in his lands by the process of enfranchisement which he is empowered to effect, the peculiar rights with regard to minerals arising out of this tenure are becoming of less importance. The copyhold tenure is said to be derived from the ancient system of villenage, in which low tenure parts of the demesne lands of lords of manors were held under the feudal system. The villeins held small portions of land at the will of the lord, who might dispossess them whenever he pleased. But the villeins in process of time gained considerable privileges from their lords. For the latter having in many places, time out of mind, permitted their villeins and their children to enjoy their possessions without interruption, in a regular course of descent, the common law, of which custom is the life, gave them title to prescribe against their lords, and on performance of the customary services to hold their lands

in spite of any determination of the lord's will. For though they were said to hold their estates at the will of the lord, yet that is such a will as is agreeable to the custom of the manor, of which the rolls of the manor courts were evidence. And as such tenants had nothing to show for their estates but these rolls, or copies of such entries witnessed by the steward, they were called "tenants by copy of court roll," and their tenure itself a "copyhold."

In the absence of any special custom the general rule seems to be that the right of property in minerals lying on or under land held by this tenure belongs to the lord, while only a possessory interest is vested in the tenant. But neither the lord without the consent of the tenant, nor the tenant without the licence of the lord, may open and work new mines. In his Treatise on Tenures, Lord Chief Baron Gilbert says, p. 327, "It seems to me that a copyholder of inheritance cannot, without a special custom, dig for mines, neither can the lord dig in the copyholder's lands, for the great prejudice he would do to the copyhold estate." The leading case upon this point is that of Bourne v. Taylor (10 East, 189), in which it was distinctly laid down that the lord of a manor, as such, has no right, without a special custom, to enter upon the copyholds within his manor, under which there are mines and veins of coal, in order to bore for and work the same; and the copyholder may maintain an action of trespass for so doing. This case was followed by another, Lewis v. Branthwaite (2 Barn. & Ad. 437), in which it was decided that, as in copyhold lands, though the property in mines is in the lord, while the possession

of them is in the tenant, the latter may maintain an action of trespass against the owner of an adjoining colliery for breaking and entering the subsoil and taking coal therein, though no trespass be committed on the surface.

But if the minerals are once severed from the inheritance, whether by the copyhold tenant or by any stranger, the lord will be entitled to recover them in an action of trover. They are no longer part of the freehold, but personal chattels belonging to an owner whose right of possession has accrued. "Custom is the life of all tenures by copy," and custom is in fact the evidence of the terms of the grant of the lord. When a custom exists enabling the lord to work the mines, it must be concluded that the possession of the minerals has been reserved to him. But the custom must not exhaust the whole estate of the copyholder without recompense. There can be no doubt that a general claim by the lord to work mines in customary lands without compensation would be held to be invalid.*

With reference to the customary rights of the tenants as to coal, the case of the Duke of Portland v. Hill (Law Reports, Equity, p. 765), will be found very valuable. It was laid down that in lands held by copy of court roll according to the custom of the manor the freehold is in the lord, and in the absence of custom (the onus of which lies upon the tenant) the tenant has no right to work the minerals. The existence of a "customary," compiled within the period

*Bainbridge on Mines, 20.