Harker et Al v Birkbeck et Al
| Jurisdiction | England & Wales |
| Judgment Date | 11 July 1764 |
| Date | 11 July 1764 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 978
IN THE COURT OF KING'S BENCH
S. C. 1 Black. 482.
See post, 1824 a. Co. Lit 164 b. and post, 2832.
See Low Moor Company v. Stanly Coal Company, 1875, 76, 33 L. T. 444; 34 L. T. 186; Sutherland v. Heathcote [1891], 3 Ch. 518; [1892], 1 Ch. 475.
barker et al. versus bibkbeck et Au Wednes. llth July, 1764. [S. C. 1 Black. 482.] Trespass and not case will lie for encroaching on a lead mine, though the plaintiff has no property in the soil above the mine, but only a liberty of digging. [See post, 1824 a. Co. Lit. 164 b. and post, 2832.] [See Low Mow Company v. Stanley Coal Company, 1875, 76, 33 L. T. 444 ; 34 L. T. 186 ; Sutherland v. HeathcMe [1891], 3 Ch. 518; [1892], 1 Ch. 475.] This was a special case from the last Lent-Assizes for the county of York. The verdict was given for the plaintiffs : but There was a rule, by consent, " that the verdict should be subject to the opinion of this Court; and if that opinion should be for the plaintiffs, then they were to be at liberty to proceed upon it; if for the defendants, then the verdict to be vacated, and instead thereof, a nonsuit returned." It was an action of trespass upon the case; wherein the plaintiff's declare, that whereas they were and still are lawfully intitled to and ought to have and enjoy the sole liberty and privilege of digging for, getting and raising lead ore, and taking the benefit thereof, within a certain place or plat of ground lying and being in Whitaside, east of the old field called Grena Field, bounded, &c. as is particularly stated in the declaration; the defendants well knowing the premises, but intending to injure the plaintiffs in this behalf, and to deprive them of all the benefit and advantage of getting and raising lead and lead-ore within the said place or plat of ground within the limits above described, and whilst the said plaintiffs were so lawfully intitled to get lead-ore there as aforesaid, did sink for, raise and get a great quantity (to wit 100 ton) of lead-[1557]-ore within the said place or plat of ground within the limits above described, of the value of 2001. and took and carried away the same, and converted and disposed thereof to their own use : whereby the said plaintiffs were deprived of the benefit and advantage which they might and otherwise would have made of their said liberty and privilege. There was another count, containing the like recital, and charging the like facts of sinking for, raising and getting a great quantity of lead-ore within the said plat and within the limits above described ; but omitting to charge taking, carrying away and converting it to their own use ; which count lays this as an interruption to the plaintiffs, in the exercise of their said liberty and privilege there, of digging for, getting and raising lead-ore; and thereby depriving them of the benefit and advantage which they might and otherwise would have made of their said liberty and privilege. The defendants pleaded the general issue, " not guilty ; " and thereupon issue was joined. The case stated and reserved for the opinion of this Court was- That Mrs. Moore, as executrix of her husband, was solely intitled to the mines and (d) This is contrary to 1 Magens, page 10, at the end of the note there, where the practice of the London Insurance Company is said to be contrary to what is here mentioned. 3 BURB. 1888. BARKER V. BIRKBECK 979 veins of lead and lead-ore within the limits mentioned in the declaration, for a term of years yet to come. That she had no interest in the soil, but for the purposes of digging and searching for lead and lead-ore and working the said mines. That she employed one Rosewarne, as her agent: and that he, on her behalf, and the plaintiff Barker, on behalf of himself and partners, signed a writing upon plain paper without stamps, in the following words-" 16th June 1761. Memorandum.- Mr. Thomas Rosewarne, agent to Mrs. Frances Moore, doth let or set to John Barker and partners, to raise lead-ore in a plat of ground lying and being in Whitaside, east of the old field called Grena-Hill. This plat of ground begins at a gill called or known by the name of Long Gill; and from Long Gill Head to Pickerstone Rigg, which is the south-west boundary adjoining to the Duke of Bolton : the north-east boundary of this plat of ground begins at a gill at the west end of Birks pasture, known by the name of Will Anton Gill Head, and from Will Anton Gill Head, to a boundary called or known by the name of High Barle, adjoining to the Duke of Bolton ; which is the north-east boundary of this plat of ground. John [1558] Harker and partners do agree to pay to Mrs. Frances Moore...
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