#### Crouch v. Puryear, &c.

December, 1822.

Waste — Tenant In Dower — Coal Mines.† — It is not waste in a tenant in dower of Goal lands, to take Coal to any extent, from a mine already opened, or to sink new shafts into the same veins of Coal.

Same — Same—Same.—The tenant may penetrate through a seam already opened, and dig into a new seam that lies under the first.

John Ellis died intestate, leaving a widow and three children. At the time of his death, he was seised of about 234 acres of land in Henrico county. Upon the assignment of the widow’s dower, the portion of land which was allotted to her. contained a mine of coal, which had been worked to a small extent, in the life-time of her husband. The widow afterwards intermarried with Puryear the defendant. *Puryear, or some person claiming under him, caused another pit to be opened on the dower land, and proceeded to raise coal therefrom; but a suit being threatened, he desisted. The plaintiff, Crouch, afterwards purchased the rights of the children; and thus became entitled to the whole of the said tract, subject to the dower aforesaid. McRae and Dorrington, having purchased a lease of the said dower land, are preparing to resume the working of the said new pits, and to open one or more other pits or other seam or seams of coal, and to work them on a very large scale. The plaintiff, therefore, prays an injunction to stop the defendants in their proceedings aforesaid; more especially, as he does not consider them able to make compensation, if the mischief shall be once perpetrated.

The chancellor awarded the injunction.*

McRae and Dorrington filed their joint answer, admitting the lease to them, and their intention to *go*on and take coal from the mine opened by the said John Ellis, and for that purpose they mean to sink shafts and do such other things as are required for the full enjoyment of their rights under the lease, without committing waste: that they, as representing the rights of the widow, are authorised to take coal from the said mine, without stint; and that it is not waste to sink shafts or to pursue the coal belonging to the said mine, in every direction, and to every extent they may think proper to obtain the coal. They admit, that there was another shaft sunk at the distance of a very few yards from the pit opened by the said John Ellis, before the lease to them; but by whom it was done, they know not. The defendants are working the said last-mentioned shaft, which they conceive they have a right to do; not only because they believe that all the coal upon the said dower lands are part of the same mine, (having no reason to believe, that there is any other distinct *body of coal on the dower lands,) and that the shaft on which they are working passes through the seam or vein, which was opened by the said John Ellis in his life-time; but because, upon the principles of law and common sense, a mine once opened, is regarded every where. This doctrine is the more reasonable, as the lands where a mine is situate, are usually sterile and of no value, except for the mineral; and, therefore, to deny the free use of it, would be to deprive the dowress of all benefit from the endowment.

Ellis Puryear and his wife also filed their answer, which contains, in substance, nearly the same matter as the answer of McRae and Dorrington.

Upon motion .of the defendants, the chancellor dissolved the injunction: being of opinion, that the two seams or strata of coal are proved to be connected by a substance of slate and coal throughout, and should be regarded as forming the same mine, according to the understanding of the colliers in England and Scotland, in like cases; and if so, the tenant for life, in right of her dower, might, upon common law principles, work the old shaft to every reasonable purpose, without stint; and, upon the same principles, she might open new pits or shafts for that purpose.

The plaintiff, Crouch, obtained an appeal from this order of dissolution.

Stanard, for the appellant.

This case may be viewed under two aspects. 1. Upon the supposition that this vein of coal was opened in the life-time of the husband. 2. Upon the idea that the vein was a new one not opened before. I contend that, in either case, the appellees were guilty of waste, and ought to be restrained by injunction.

*1. The only question on the first point is, whether a widow is entitled to work a vein of coal already opened, to any extent? It is remarkable, that the English books should contain so few cases on this subject. A short passage in Coke upon Littleton, (a) contains almost every thing that is useful on the present occasion; for Bacon, Comyns and Viner, are mere repetitions of the doctrines of Coke. Mines of coal are not like fisheries, inexhaustible in their nature, and indefinite in *100their enjoyment; and, therefore, it depends upon the discreet conduct of the tenant, whether the reversion will be valuable or otherwise. The rights of the heir are particularly regarded by the English law. The question always is, whether any act will impair the inheritance? The privileges of house bote, hedge bote, &c. are not exceptions to this rule, but tend to confirm it. They are all for the benefit of the heir, and result from the duty of the particular tenant, to preserve the inheritance. The extent of the tenant’s right is to be determined by the use, which the owner of the fee simple himself made of the property. Thus, the tenant for life can only repair houses already in existence, but cannot erect new ones. It is waste to convert meadow into arable land, or wood land into arable. The digging of coal cannot possibly promote the advantage of the heir; because it diminishes the stock from which the heir may derive revenue. The true limitation can only be found in the extent, to which the owner of the fee simple worked the mine. On the supposition, therefore, that this pit was opened in the life-time of Ellis, the intestate, the appellees ought to be restricted to the same use that he made of the pit; and as .it is proved and admitted, that the appellees are preparing to work the mine much more extensively than Ellis ever did, the injunction ought not to have been dissolved. ' •

2. Upon the supposition that the appellees are working a new vein, (which is the fact,) the law is still more clear *in favor of the appellant. The cases which will be relied upon on the other side, will be found, on examination, not to support the right claimed by the appellees. The case of Findlay v. Smith, (b) was governed by the value of the property and the terms on which it was devised; the relationship of the devisees to the testator; the heavy charge he had imposed on the life estate, and the intention to be inferred from these considerations. As to the case of Clavering v. Clavering,(c) it may be remarked, that it goes further than any other case in the English books, and that it was not a decision of the right, but a refusal to grant a peremptory injunction, when the plaintiff had a remedy which he might resort to, without hazarding the great and irremediable loss that might result from the injunction. But, that case is distinguishable from the present, in one important point. The mine itself was the subject leased, and not as mere incident to the tenancy of the land But, all that the tenant claimed in that case, was a right to sink new shafts into the old vein. Mine and vein are synonimous. But, here the new vein is separated from the old one by a horizontal stratum of slate, which renders them totally distinct. The appellees cannot reach this new vein, without penetrating through the old one, and the stratum 'of slate that lies between them. Stoughton v. Lee,(d) proves, that the term mine applies to the stratum of coal which has been opened._

Call, Wickham and Nicholas, for the appellees.

The case of Clavering v. Clavering, is a decision in point, and Findlay v. Smith, follows up the principle and confirms it. It is decided, in those cases, that a tenant may dig new pits into a mine that is already opened. The question, therefore, really turns upon the meaning of the term mine.

*To ascertain its meaning, we should resort, not to- legal precedents, but to the opinions of men skilled in the particular art or science in question. Every art has its own peculiar language; and it is impossible to speak with the necessary precision, if we employ words of science in their vulgar acceptation. Assuming this standard, we shall find that the term mine, includes the whole mass or vein of coal, contained within the land, held by the tenant. A vein is not synonimous with a seam of coal. A vein or mine, (which is the same thing,) contains many seams. These seams may be separated from each other, by strata of slate oi other matter, but they are all included' in the same mine. Every mine or vein, lies *in*different seams. These ideas are fully confirmed by all the treatises that have been written on the subject.(e) In Clavering v. Clavering, the word vein or mine is used in the same sense. When, therefore, that case decides that new shafts may be sunk in an open mine or vein, it says in effect that the tenant may bore into every different seam composing that mine. It makes no difference, whether the seams are separated by a horizontal or perpendicular stratum of slate. They are equally-parts of the same vein.

Mr. Stanard’s idea, that the rights of the tenant are only intended for the benefit of the reversioner, is not supported by any authority. Whenever the law gives any estate, however small, it gives the right and the means of enjoyment. Indeed, it is impossible to give any rational account of some of the acknowledged privileges of a tenant, such as fire-bote for instance, upon such a principle. This privilege certainly cannot produce any advantage to the reversioner. The more obvious principle is, that the law intends each estate to be enjoyed in its fullest extent; and e^en where the full enjoyment of the particular estate, may impair the rights of the reversioner, the law will not contract the rights of the tenant. This happens *in regard to those things that are consumed in their use. A pipe of wine, for example, may be given to one for life or years, remainder to another. But it will hardly be said, that the tenant would be restrained in the enjoyment of his estate, although he may leave the reversioner, only an empty cask.

But it is not admitted, that the free use of a coal mine, will produce any injury to the reversioner. On the contrary, the sinking of shafts is a benefit to him; because it relieves him from the expense incident *101to exploring for coal. There is no instance •of a coal mine being exhausted.

W. Hay, junr. in reply.

Mr. Stanard’s first position remains unrefuted. But, let it be conceded that he is incorrect, when the question is stated as ,a general one; still there are facts in this case, which will justify the court in imposing upon the widow and her assignees, the restriction for which he has contended.

The case of Stoughton v. Lee,(f) shews, that notwithstanding there may be an open mine, in lands of which a widow is endow-,able, that the assignment may be of a third in value, without reference to the mine; and, that if an open mine be assigned, an estimate should be made of its annual profits.

There is no pretence for saying, that such an' estimate was made in this case; •and there is the strongest ground for contending, that the assignment was intended to be of a third in value, without reference to the mine. It appears, from the deeds which are exhibited, that the widow has received a third of the land in quantity, including the mansion; and if an unrestricted right to work the mines was allowed her, the assignment was excessive. That such a right was not in the contemplation of the parties, is very manifest from the deed to her assignees; in which *they are laid under a restriction as to working, until it was judicially determined that she herself had a right to do it; a doubt as to her authority, which surely could not have existed, if the profits •of the mine had been estimated as they ought to have been in the assignment.

But, whatever may be the fate of this ■question, there can be no doubt, that upon the authority of Clavering v. Clavering, she is to be restricted to the old vein, and cannot open a new one; and the controversy turns upon the' import of that term. It is used by the court as a term embracing only a part of the same mine, and as restrictive of the rights of the tenant; and in this view, cannot have any other signification, than seam or stratum. The case of Stoughton v. Lee, is a direct authority for this position. In fact it goes further; it shews that mine and stratum are in legal intendment synonimous. Mine, or stratum, is the language of the court in the case sent to be determined at law, and the same terms are used by the law court in Its certificate, which determined that in the •open strata the widow was endowable, but not in those which were unopened; and there were several of each kind upon the same land.

This construction receives additional support from the same case, which decides, as stated above, that where an open mine is assigned for dower, an estimate must be made of its annual profits. It is not easy to conceive, in what manner this estimate is to be made of the profits of strata, the existence of which is not ascertained, and which may be indefinite both in number and extent. No mode can be pursued, but to consider the visible stratum as the mine, the profits of which are to be ascertained.

The appellees can derive no support from the writers on Geology and Mineralogy, who have been cited. Let their authority be conceded; let the accounts which they give, of the structure of mines, be correct. Let it be admitted that the term vein is technically never applied to minerals, but only to metals; and that the term mine, *when understood scientifically, embraces an indefinite number of strata. What is their bearing on this case? The point for the decision of the court, is not the technical, but the legal, import of the terms, in the adjudged cases. This only can be brought to bear upon the question. If the term vein is used by the court, as synonimous with seam or stratum, the word must be received in the sense in-which they used it, although it may not be correct in technical language.

But the authority of these writers is not admitted. A court may with propriety receive information upon questions connected with science and trade, from persons conversant with them; but it must be derived from their testimony, and not from their writings. Such was the mode adopted in Clavering v. Clavering. Works of this nature, are not like general histories, to which it is conceded that courts may sometimes have recourse. But this is only as to matters relating to the country at large, and never upon questions of private right, or as to particular customs. Camden’s Britannia, a work of great authority, was rejected upon a question somewhat like this.(g)

As little support can the appellees receive from domestic precedents. The case of Findlay v. Smith, which was cited as running upon all fours, is surely very unlike the present. The majority of the court who decided it, expressly found the decision, not upon common law principles, but upon the rights conferred on the widow by the will, which laid her under no restrictions. In addition to which, it was admitted that the saline mineral was inexhaustible; and there being no restriction upon the use of that, the right to use the fuel was co-extensive.

The case of tenants in common, who are owners of the inheritance in coal mines, has as little application. The subject is, from its nature, incapable of partition; and if- one tenant, through folly or obstinacy, will not contribute to the expense of the works', the other who is willing' to ^encounter it, should be permitted to derive a profit from them.

As to the argument derived from the absence of British decisions (from which it is inferred, that the right claimed by the appellees, was never disputed,) it may, upon the same ground, and with the same propriety, be urged, that such a pretension as theirs, was never before advanced. If the law upon this subject, had been so well settled as not to admit a dispute, it is a little remarkable, that the case of Stoughton v. Lee, should have been sent from the *102court of chancery, to the court of common pleas, at this late period, to determine, not merely the extent of the widow’s right to work mines, but whether she had any right at all; and this too, in a country in which collieries have been in vigorous operation for many centuries.

The case of Gibson v. Smith, (h) is a decisive answer to the statement, that a coal mine cannot be exhausted, and that the reversioner sustains no injury, but on the contrary, derives a benefit, from the unlimited working of it. It decides that a mere threat to- commit waste in a colliery, is sufficient to warrant the interposition of the court; and this too, in a case in which it never interferes, but upon the ground of irreparable injury. And it must be manifest, that whether the mine can be exhausted or not, the more it is worked, the greater must be the labor necessary, and of course the expense.

Ledbetter’s deposition, to which so much importance has been attached, proves at most, only what the colliers in some parts of England, in common parlance, understood by the term mine. But, even as to this point, it is not explicit, but' affords only his opinion. But had it been explicit, it is short of the evidence upon which the case of Clavering v. Clavering was decided, and which went to shew the usage as to tenants, for life or years, of collieries.

Whatever restrictions the law imposes upon conventional tenants, as to whom the reversioner has a right to impose **his- terms, are, a fortiori, applicable to a tenant in dower, who comes to her estate by act of law.

†

See, citing principal case, Macaulay v. Dismal Swamp Land Co., 2 Rob. 507, 526, and *foot-note;*Koen v. Bartlett, 41 W. Va. 566, 576, 23 S. E. Rep. 665, 666; Williamson v. Jones, 43 W. Va. 566. 27 S. E. Rep. 411; Wilson v. Youst, 43 W. Va. 833. 28 S. E. Rep. 784; Stewart v. Tennant, 52 W. Va. 559. 44 S. E. Rep. 231.

*

Tbe injunction was awarded by Judge Green, then chancellor of the Fredericksburg district.— Note in Original Edition.

(a)

 Co. Litt. p. 54,6.

(b)

6 Munf. 134.

(c)

 2 F. W: 388.......

(d)

 1 Taunton, 402.

(e)

 Kirwan’s Geological Essays, 291; lb. 296; lb. 203; lb. 308: Homes on Coal Mines, 14; Encyclop. (Dobson’s Edition,) vol. 5, art. (Coal.)

(f)

 1 Taunton.

(g)

**Philips’ law of evidence, 320.

(h)

 2 Atk. 183.

JUDGE BROOKE,

December 19. — delivered the opinion of the court, that the decree should be affirmed.*

*

Jvdge Green did not sit in this cause.