Astry v Ballard
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1793 |
| Date | 01 January 1793 |
| Court | Court of the King's Bench |
English Reports Citation: 83 E.R. 510
COURT OF KING'S BENCH
[185] astry against ballaed. By a lease of land and mines, wherein some are open and some not, those open pass only. S. C. 2 Jon. 71. 3 Keb. 709, 723, 761, 765, &c. Fide Plowd. case of Mines. Trover, upon non culp. and a special verdict, the case was, one seised of land wherein were some mines open, and some not open, by indenture demised the lands and mines therein to the defendant, who opened a new coal mine, not open before, and there dug the coals for which the action is brought; and whether in this case by the demise lands and mines he could open new mines, or not1? was the question. For the plaintiff it was said, that he could not, and Co. Lit. 54 b. cited : a lease of kinds and mines, some open, arid some not; those only which are open pass, being sufficient to satisfy the words, and the lessee cannot open new mines: so if a man demise land and timber, the lessee is not impowered to sell timber. 11 Co. Liford's case. By such general words lessees shall not have power to commit waste; where it is intended to invest him with such power, there ought to be express words in the grant to that purpose, as in this case, mines open or not open: for the defendant it was answered and agreed, that Co. Lit. 54 b. is, as was cited; but to warrant his opinion he cites Saunders's case, 5 Co. which does not warrant it; for there it is expressly said, that by a lease of land mines open will pass, not that by a lease of land and mines, mines not open will riot pass; and if by a lease of land only mines open pass, and by a lease of land and mines, mines not open do not pass, the word mines will signify nothing in the case; for by a lease of land and mines nothing but the land mines open pass, and so they would by a lease of the lands only : this then is only the opinion of Coke in his comment upon Littleton, not warranted by Saunders's case, nor any other; for all the former booka say, that by a lease of land and mines the mines pass, not making any distinction, whether open or not open. But the Court held, that by the words land and mines, there being mines open at the time of the demise, no mines pass but those open, and gave judgment for the plaintiff. Simpson and Pemberton for the plaintiff; Levinz for the defendant.
English Reports Citation: 83 E.R. 515
COURT OF KING'S BENCH
[195] astry against ballard. Plaintiff took one of the defendants in execution...
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