(i) Above, pp. 58, 59; Newman v. Rogers, 4 Bro. C. C. 391; Sug. V. & P. 262; 1 Dart, V. & P. 419, 5th ed.; 484, 6th ed.; 497, 7th ed.; below, Chap. XII.

Sec.1.

(k) Ex parte Manning, 2 P. W. 410; Child v. Abingdon, 1 Ves. jun. 94; Champernowne v. Brooke, 3 Cl. & Fin. 4, 23; Brooke v. Champernowne, 4 Cl. & Fin. 589; Enraght v. Fitzgerald, 2 Dr. &

Where land sold consists of an allotment acquired under an Inclosure Act (m), the title material to be investigated, prior to the award made pursuant to the Act, is that under which all the lands, in respect of which the allotment was awarded, were held (n). It is also material to ascertain that the powers given by the Act were not exceeded in making the award, for no title is conferred by the award of any allotment made ultra vires (o).

Allotments under an Inclosure Act.

Where the title to land sold is made under an exchange effected in the manner which has now long been usual, - namely, by deeds of mutual conveyance containing vendor's covenants for title, but no provision for mutual re-entry in case of eviction (p), - the title to be investigated prior to the exchange (q) is the previous title to the land taken in exchange alone, and the title to the land given in exchange is immaterial (r). But where land sold has been acquired through an exchange effected by an order of exchange made under the Inclosure Act, 1845, and the Acts amending it (s), it is unnecessary for the purchaser to investigate the title to the land so acquired prior to the order of exchange (t); for unless the order were made without jurisdiction, that land thenceforward became irrevocably subject to the title, under which the land given in exchange was held (u). The prior title to the land given in exchange is, therefore, the only title which it is material to investigate (x); but as it appears that the order of exchange would be invalid if made without jurisdiction, and such jurisdiction arises on the application of the persons interested in the land proposed to be exchanged (y), it seems that the purchaser would he entitled to require proof that the person who applied for the order in respect of the land taken in exchange was in fact interested therein within the meaning of the Acts (z).

Exchange effected by mutual conveyances.

War. 43, 47; Vesey v. Elwood, 3 Dr. & War. 74, 82; Wallis v. Sarel, 5 De G. & S. 429.

(l) Bailey v. Collett, 18 Beav. 179; Sug. V. & P. 628; 1 Dart, V. & P. 630, 631, 5th ed.; 712, 6th ed.; 654, 7th ed.

(m) As to the inclosure of common fields and commons, see Wms. Real Prop. 62, 424, 21st ed.; Williams on Convnons, 77- - 79, 246 sq.

In) Major v. Ward, 5 Hare, 598, 604 '; Sug. V. & P. 372, 373; 1 Dart. V. & P. 164, 286, 5th ed.; 186, 326, 6th ed.; 181, 322, 7th ed.; 1 Davidson, Prec. Cony. 627, 4th ed. Inclosure Acts usually provided that the tenure of the lands allotted should be the same as that of the lands in respect of which the allotment was made, and reserved the minerals under the lands allotted to the persons previously entitled to thorn: but where no such provisions were made the tenure of the allotments was freehold and the mines under them passed with the soil to the allottees; see Davidson, Prec. Conv. vol. ii. part i. p. 491, n., 4th ed.; Townley v. Gibson, 2 T. R. 701; Doed. Lowes v.Davidson, 2 M. & S. 175; Doe v. Hellard, 9 B. & C. 789; Wakefield v. Buccleugh, L. R. 4 Eq. 613, 627; 4 H. L. 377; Butterknoivle Colliery Co., Ltd. v. Bishop Auckland, etc. Co., Ltd., 1906, A. C. 305; Williams on Commons, 223, 224, 250, 251; Inclosure Act, 1845 (stat. 8 & 9 Vict. c. 118), ss. 94, 98. As to the question whether the right of sporting over allotments of waste land has been reserved by an Inclosure Act to the lord of the manor, see Williams on Commons, 240 - 243; Devonshire v. O'Connor, 24 Q. B. D. 468; Ecroyd v. Coulthard, 1898, 2 Ch. 368.

(o) Wingfield v. Tharp, 10 B. & C. 785; Casamajor v. Strode, 2 My. & K. 706, 718-722; Sug. V. & P. 375.

(p) See Davidson. Prec. Conv. vol. v. pt. ii. pp. 77 - 81, 3rd ed.; 1 Key & Elph. Prec. Conv. 700 - 713, 4th ed.

Exchange by-order under the Inclosure Act, 1845.

(q) If the exchange were made at least forty years before the sale, it would of course be a good root of title; see above, pp. 100, 106.

(r) The acquisition of land in this way is exactly similar to its acquisition on sale, and if the title to the land given in exchange were bad, the party who took it in exchange would, in the absence of fraudulent misrepresentation, have no right to recover possession of the land which he exchanged for it, but could only pursue his remedy in damages under the covenants for title; Bartram v. Whichcote, 6 Sim. 86, 92; see below. Chap. XII. Sec. 3; Chap. XIV. Sec. 1; Chap. XIX. Sec. 5. But where an exchange of lands was effected at common law before the year 1845, a mutual right of re-entry on eviction was implied, and so the title both to the land given and to the land taken in exchange was material; see Bustard's case, 4 Rep. 121a; Sug. V. & P. 372; 1 Davidson, Prec. Conv. 528, 4th ed.; Wms. Real Prop. 160, and n. (c), 217, 610, 611, 21st ed.; stats. 7 & 8 Vict. c. 76, s. 6; 8 & 9 Vict, c. 104, s. 4.

(s) See above, pp. 147 and n. (q), 152 and n. (r); Wms. Real Prop. 143, 217, 21st ed.

(t) 1 Davidson, Prec. Conv. 529, 4th ed.; 1 Dart, V. & P. 287, 5th ed.; 328, 6th ed.; 324, 7th ed.

(u) Stat. 8 & 9 Vict. c. 118, s. 147; Minet v. Leman, 20 Beav. 269, 279, 7 De G. M. & G. 340 (deciding that gavelkind land may well be so exchanged for land held in free and common socage); Collins, J., Jacomb v. Turner, 1892, 1 Q. B. 47, 51, 52; Davidson, Prec. Conv. vol. ii. pt. i. pp. 94, 95, n., 100, n., 4th ed.

(x) Such an order of exchange is not in itself a good root of title, as it affords no evidence of the validity of the title to the land given in exchange; see previous note; above, p. 106.

A sale as well as a conveyance of land includes the right to all mines and minerals in and under the land (a); except only gold and silver mines, which belong to the Crown (b). If, therefore, the vendor desire to reserve any minerals or have no title to the mines, he must be careful to provide by express stipulation that the minerals he desires to retain shall be excepted from the sale and sufficient working powers reserved to him, or that he is selling the surface only (a). Whenever mines and minerals are excepted from a conveyance of land by the agreement of the parties thereto, it appears that the word minerals, unless limited by the context, will include every substance embedded in or forming part of the land and having a value of its own apart from its worth as a portion of the soil (c). Thus the term minerals, when used in such a conveyance (d), has been held to include china clay (e), coprolites (f), and brick earth and clay (g), and would certainly comprise slate, freestone and limestone (h), and every other kind of stone (i), besides coal and ironstone (k). It appears that the term minerals would have the same meaning in a contract of sale as in a conveyance of land (l). A landowner who has sold and conveyed away the surface excepting the mines and minerals, but without reserving any express power to enter and get them, retains by implication of law all necessary powers for working the same: but the powers so reserved to him are only such as are strictly necessary for the purpose (m); and it is usual on such sales for the vendor to stipulate expressly for the reservation of larger powers, including the liberty of using the surface for works connected with the mines, such as the deposit of rubbish, the erection of engines and other works, or of cottages for workpeople, and the making of tramways, railways, etc. (n). If a contract of sale of land should provide for the mines and minerals being excepted, but not for the reservation of any express powers of working them, the vendor would not be entitled to require the reservation to him, in the conveyance to the purchaser, of any larger powers than he would retain by implication of law; and if the contract should expressly provide for certain powers of working, the vendor could not require any larger powers to be reserved to him by the conveyance (o). In the absence of express or implied stipulation to that effect, a vendor retaining the miues and minerals will have no right to let down the surface by his workings (p), or, where the excepted minerals can only be gotten by surface workings, to work them in such a way as will utterly destroy the surface soil of the land (q). So long as the ownership of any mines or minerals is enjoyed as an incident of the ownership of the surface, they pass, as a rule, without express mention (unless specially excepted) upon any conveyance or disposition of the surface (r); and where a title has been acquired under the Statute of Limitations (s) by adverse possession of the surface, a similar title to the mines and minerals thereunder will have been equally obtained (t). But after mines have once been severed from the surface, they remain distinct therefrom as separate corporeal hereditaments (u), the title thereto is no longer affected by any act of disposition or possession of the surface; and it is not lost by any mere omission to enter upon or work the mines (r). In such case the acquisition, subsequent to the severance, of a new title to the surface under the Statute of Limitations, will not of itself disturb the title to the mines (y). If, however, the mines severed be actually entered upon and held by a trespasser in such a way that he keeps possession of them, he will in due time obtain a good title under the statute (z). It is not sufficient, however, for a trespasser merely to enter on a mine and take coal or other minerals away; he cannot get a title to a mine, as a corporeal hereditament, unless he remain in possession of it, as such, for the statutory period (a). And the retention of possession of some particular mine or seam of coal, or some part thereof, will not confer a title under the Statute of Limitations to any other mine or seam lying beneath the mine so possessed or to any other part of that mine than so much thereof as has been in the trespasser's actual possession (b). The reader will remember that, in the absence of any custom to the contrary, all mines and minerals in and under copyhold lands belong to the lord, though the tenant has possession of them, and neither party can work them without the other's consent (c). Such mines and minerals pass to the tenant upon an enfranchisement made by a conveyance of the freehold in fee under the general law (d), unless of course they are expressly excepted: but they do not pass upon an enfranchisement (whether voluntary or compulsory) effected under the powers given by the Copyhold Acts, unless specially comprised therein (e).