Bowser v Maclean
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1860 |
| Date | 21 November 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 682
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 30 L. J. Ch. 273; 6 Jur. (N. S.), 1220; 3 L. T. 456; 9 W. R. 112. See Eardley v. Granville, 1876, 3 Ch. D. 834; Cooper v. Crabtree, 1882, 20 Ch. D. 592.
[415] bowser v. maclean. Before the Lord Chancellor Lord Campbell. Nov. 10, 12, 21, 1860. [S. C. 30 L. J. Ch. 273; 6 Jur. (N. S.), 1220; 3 L. T. 456; 9 W. B, 112. See Eardley v. Grancitte, 1876, 3 Ch. D. 834; Goqier v. Cmbtree, 1882, 20 Ch. D. 592.] The lord may drive carriages along a tramway under copyholds of the manor, for the purpose of working mines within the manor, but not of working mines beyond its limits, and a bill will lie for an injunction at the suit of a copyholder to restrain the lord from using the tramway for the latter purpose; nor is it an objection to such a bill that the copyholder is not in possession of the surface, but has let it to a tenant. This was an appeal from the decision of Vice-Chancellor Stuart allowing a demurrer to the Plaintiffs bill, and refusing a motion for an injunction with costs. The material statements on the bill, which was filed by E. Bowser, J. Humphries and T. Peacock, against Sir Charles F. Maclean, were to the following effect:- The Plaintiff Richard Bowser is in equity seised to him and his heirs of the lands, tenements, hereditaments and premises called the Cockton Hill estate, situate in [416] the township of Bondgate-in-Auckland and parish of Saint Andrew's Auckland, in the county of Durham, and such estate is copyhold or customary freehold of the manor of Bondgate-in-Auckland, formerly part of the possessions of the See of Durham, but now belonging to and vested in the Ecclesiastical Commissioners in right of the said See; and, in accordance with a custom of the said manor in that behalf, the said estate is now vested in the Plaintiffs John Humphries and Thomas Peacock, and their sequels, as tenants on the Rolls of the Court of the said manor, upon trust for the Plaintiff' Richard Bowser, his heirs and assigns; and the Plaintiff Richard Bowser has let the said estate for nine years past to one Ralph Hutchinson, as farmer of tlie surface thereof only from year to year. The Defendant Sir Charles Fitzroy Maclean is the owner or proprietor of a colliery called the Woodhouse Close Colliery, the pit or shaft of which is sunk upon a farm called the Woodhouse Close Farm, which one Francis Johnson holds under lease from the said See of Durham, and the Defendant is lessee of and works the coal mines of the said See of Durham under the copyhold or customary lands comprised in the said manor of Boadgate-in-Auckland, and the said Defendant draws such coals to the bank or surface at the said Woodhouse Close Colliery, The Plaintiff Richard Bowser recently discovered that the Defendant, Sir Charles Fitzroy Maclean, had for some time past been working or getting the coal under an...
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...below it down to the centre of the earth: see, for example, Rowbotham v Wilson [1860] 8 HL Cas 348, 360, per Lord Wensleydale; Bowser v Maclean (1860) 2 De G F & J 415, 419, per Lord Campbell LC; Pountney v Clayton [1883] 11 QBD 820, 838, per Bowen LJ; Elwes v Brigg Gas Co [1886] 33 Ch D 5......
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...32 Hindringham: ibid 2.495. 33 (1861) 9 HL Cas 692, 11 ER 900. 34 (1876) 3 Ch D 826. 35 Bowser v Maclean (1860) de Gex, Fish & J 415, 45 ER 682. out the copyholder had the right to the space where they had previously lain. In this the position is different from a separation of the minerals ......
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