Attorney General v Mathias

[579] the attorney-general v. mathias. Cm. V.-C. Wood and Mr. Justice Byles. June 6, 24, 25, July 8, 1858. [S. C. 27 L. J. Ch. 761; 4 Jur. (N. S.) 628 ; 6 W. E. 780. See Johnson v. Barnes, 1872-73, L. E.'7 C. P. 604; 8 C. P. 527; Mayor of Saltash v. Goodman, 1880-82, 5 C. P. D. 449; 7 Q. B. D. 106; 7 App. Gas. 633; Earl De la Wan v. Miles, 1881, 17 Ch. D. 577; Smith v. Andrews [1891], 2 Ch. 700.] Sights of the Crown. Officers of the Crown. Woodwards or Foresters of the Crown. Liability to account. Forest of Dean. Free Miners. Mines and Stone Quarries. Gale Fees or Rents. 1 & 2 Vid. c. 43. Custom. Prescription. Lost Grant. Profits a Prendre. Statutes of Limitation. Manors. The Defendants claimed, as woodwards or foresters of the Crown, a right to grant to certain free miners gales or licenses for working stone quarries in uninclosed lands, part of the Forest of Dean, the soil whereof was in the Crown, to exact gale fees or rents in respect thereof, and to apply the same to their own use without accounting to the Crown. Held (independently of the considerations that the alleged right, had it existed, would have been extinguished by the Dean Forest Mines Act, 1 & 2 Viet, c. 43, and that the evidence failed to establish the exercise of any such right in point of fact), that no such right could exist in point of law; for, with regard, first, to the free miners, it was a claim to subvert the soil and carry away the substratum without stint or limit, which could not be established (1) by custom, for it was a profit a prendre, which cannot be claimed in alieno solo; nor (2) by prescription, for prescription, to be good, must be both reasonable and certain, a,nd this was neither; nor (3) by presuming^ lost grant, for prescription presupposes a grant, and if such a grant cannot be presumed before, a fortiori it cannot after the period of legal memory; and a claim which cannot lawfully be made upon one of these three foundations cannot be substantiated by a user, however long, and is not saved by any Statute of Limita-tations; and with regard, secondly, to the Defendants, besides the foregoing objections, they could not shew a valid prescription exempting them, as officers of the Crown, from accounting for the proceeds of the Crown's soil which they had sold. The office of woodward or forester of the Crown is an office of trust, incapable of assignment without a license from the Crown founded on the return to a writ of ad quod damnum. Whether such an office can be annexed to a manor-qucere. The Queen, in right of her Crown, is seised to herself, her heirs and successors, of the soil of the Forest of Dean, in the county of Gloucester, with its mines and minerals; subject to the rights and privileges vested in the registered free miners of the forest, under an Act passed in the year 1838, for regulating the opening and working of mines and quarries in the forest. (1 & 2 Viet. c. 43.) By this Act Commissioners were appointed for carrying the Act into execution (sect. 1), and it was enacted that certain persons therein described should be taken to be free miners (sect. 15); that a register of the persons being free miners should be made as therein mentioned (sect. 16); that no person should be deemed a free miner whose name was not registered as such (sect. 21); and that such free [580] miners, duly registered as such, should have the exclusive right to have gales or leases of quarries within the forest (sect. 23). The Commissioners were directed, within three years from the passing of the Act, to make an award ascertaining what persons at the passing of the Act were in possession of or entitled to gales of stone quarries within the forest (sect. 24), and to set out by their award the metes and bounds of each gale or quarry, which was thereupon to be held by the person entitled thereto for the term and in manner therein stated, paying to Her Majesty, her heirs and successors, such yearly rent as therein mentioned (sect. 27). After the execution of their award all the customs respecting mines and quarries and the rights and privileges of free miners, other than such as were confirmed by the Act or the award, were to cease (sect. 31). Power was given to the Commissioners of the Woods and 242 ATTORNEY-GENERAL V.- ò MATHIAS. 1E.&J.581. Forests to grant leases of quarries in the forest for twenty-one years to any persons being free miners as aforesaid; arid it was enacted that, after the passing of the Act, no quarry within the forest should be opened by any person whomsoever other than under or by virtue of a lease to be granted as aforesaid, notwithstanding any custom or usage to the contrary; and that no person should be entitled to any quarry within the forest except such as under the aforesaid provisions should be specified in the commons award, of except the same should be held under a lease to be granted in pursuance of the provisions of the Act (sect. 83). . , . In July 1841 the Commissioners made their award, as required by the Act. Notwithstanding the Act and the awardj the Defendants, Mathias, claimed to grant, and did in fact affect to grant to persons not named in the award, and not being free miners, and in particular to the Defendant, Morse, gales or licenses for working stone quarries in uninclosed lands [581] within a part of the forest called Blakeney Walk, exacting in respect thereof certain gale fees or rents, which they applied to their own use without accounting to the Crown. Under these circumstances an information was exhibited on behalf of the Crown, praying (1) that it might be declared that the Defendants, Mathias, had not any right or title to grant gales or leases within any part of the forest to any person or persons whomsoever, or to exact gale fees or rents in respect thereof, and that they might be...