Massot v. Moses

| S.C. | Dec 7, 1871

The opinion of the Court was delivered by

Willard, A. J.

In the decision below, and in the argument at the bar, an important feature of this case has not received the attention due to the importance of its bearing. The line of argument pursued assumes that the question, whether the defendant, Moses, acquired under the grant of Massot an exclusive right as against the grantor, to the minerals contained within the premises described, for the period of ten years, is to be decided by first determining whether the thing granted was in its nature corporeal or incorporeal. It is contended that the grant created, at most, either a mere license, or an incorporeal hereditament, and authorities are cited to show that in such cases the grant does not include the right of the grantor to exercise, concurrently, a similar right to that conferred by his grant or license. The objection to this line of argument is, that it lays too great stress on the technical import of the words of conveyance, and gives too little attention to the actual intent of the parties, as evidenced by the entire instrument. The true inquiry is, what, from the construction of the whole instrument, was the nature of the right, power or property intended by the parties to be vested in the grantee ? Having ascertained, from this source, the nature of the thing granted, it will not be difficult to ascertain whether it is corporeal or incorporeal, nor to find the technical terms appropriate to describe such interest.

The instrument in question is, in form, a deed, signed, sealed and witnessed as such. Massot, in consideration of $2,000, grants, sells and conveys to Moses, his heirs, executors, administrators and assigns, “ the right and privilege of entering in and upon, by himself or his agents, all or any part of. the land hereinafter described, for the purpose of searching for mineral and fossil substances, conducting mining operations to any extent the said party of the second part may deem advisable, and for working, removing, selling, and, as the property of the party of the second part, to use and appropriate, for the term of ten years from the date of these presents, all organic or inorganic minerals, rocks, fossils, marl, or so-called phosphates, that may be found on, by any person or persons, or contained in, any part of all that plantation or tract of land,” &c. Moses is further to have the right to cut and remove trees, wood and timber, when he shall deem it advisable and advantageous, such trees, wood and timber to remain the property of Massot, who is to have the disposal and profit thereof.

The deed contains the following proviso: “Provided, further, That the party of the second part (Moses) shall not, at any onetime during the aforesaid term of ten years, engage in working over one-third part of the said tract, the third to be worked to be selected by the party of the second part, and said selection to be made as often as the party of the second part may desire.” The deed further conveys, for the like period, a general right of way, with the privilege of constructing railroads and other roads, and machinery, to be used in the extraction, preparation, manufacture and transportation of the organic and inorganic substances in question, with the right to remove the same at the expiration of the term aforesaid.

What distinguishes this grant from that in Lord Mountjoy’s case, (Co. Litt., 165,) and in all the other cases relied on as decisive against the exclusive nature of the grant, is contained in the expression “ that may be found on, by any person or persons, or contained in, any part,” &c. The term, “ any person,? must be regarded as including the grantor, so that if the grantor, in an attempt to exercise the same right as that conferred, should find any such substances upon the premises described, such act of finding would complete the title of the grantee or his assigns to the substances so found under the express terms of the grant. It might, perhaps, be said that this applies only to substances .“found on,” but not those “contained in ” the premises. This construction cannot prevail, for it would contravene the general intent of the instrument. It is clear that, as to some part of the minerals, the right of the grantor is excluded, and to that extent something more than á right in the nature of common is conveyed.

How far, then, does this exclusion extend ? It is evident that the parties did not intend to make a distinction, as to the character of the grantee’s title, between the minerals lying on the surface of the ground and those contained within it. Such a distinction would be inconvenient and senseless. If, then, it was intended that the grantee should have the same right in respect to the one class as to the other, the particular expression under consideration must be regarded as characterizing the grantee’s right, as to the whole, as exclusive of the grantor and all other persons.

This view is aided by the fact that the consideration of the deed was an entire sum of money demandable absolutely under the deed, and which may be assumed to include a valuation, fixed by the parties, on all minerals that the grantee was authorized to remove from the premises, and might, by possibility, remove therefrom, during the term of ten years, and by the further fact that the deed, by its terms, professed to sell and convey the material itself, as well as the right to search for and take it.

It is not necessary to rest this case upon the whole ground taken in Caldwell vs. Fulton, 31 Penn., 475. In that case the grant was held to exclude the grantor on the ground that the consideration, being an entire sum paid for the right conferred, evidenced an intent to sell the whole mineral content as such. Independent of the character of the consideration, the language of the grant, in Caldwell vs. Fulton, was substantially the same as that in Lord Mountjoy’s case. The opinion in Caldwell vs. Fulton does not seek to unsettle the authority of Lord Mountjoy’s case, but finds grounds of distinguishing the cases, in the fact that different inferences are to be drawn, as to the intended exclusiveness of the grant, from the respective considerations in the two grants.

In the case before this Court, the construction of the grant does not depend wholly on the character of the consideration, as we have already seen. It is, however, a circumstance in the case, and, therefore, it is in place to enquire, whether the fact that the consideration is an entire sum demandable at the delivery of the deed, and intended as compensation for the right granted, tends to show an intent to convey an exclusive interest.

Apart from the limitation of ten years, if the subject-matter of the grant had been personal property, instead of land, it would have passed an exclusive right of property to the grantee.

A bill of sale for a valuable consideration, paid of all the goods of a certain kind in a certain warehouse, or all the quarried stone or mined ores, in a certain field, would show an intent to transfer a perfect title. Should the vendor, at the same time, confer a license upon the purchaser to enter upon his premises, and to search for, and remove the property, its effect would be to enlarge still further the right of the purchaser.

Although the subject-matter of the contract be land, still, if capable of severance, so as to become personal property, the parties are not precluded, by any rule of law, from treating it, in its unsevered condition, as personalty, and transferring title accordingly.—Clark vs. Way, 11 Rich., 624.

These propositions are not disputed by Lord Mountjoy’s case, nor by any of the English or American cases following its authority; but, on the other hand, are supported by many cases of undoubted authority.

To all such contracts and grants, whether relating to realty or personalty, the test that has been applied, is the intent of the parties. The difference between the two cases is this: that certain words sufficient to manifest such intent, in the case of personalty, are not deemed sufficient for that purpose in the case of realty.

The proper conclusion from these cases would seem to be, that grants of a right to enter the lands of the grantor and sever therefrom and appropriate its products or mineral contents, are subject to a presumption not applicable to the case of a sale of personalty, that the grantor did not intend to exclude his own proprietary right to a concurrent enjoyment with the licensee of the power granted. If this view is correct, any words evidencing an intent on the part of the grantor to part with his proprietary rights over the subject-matter to which the grant relates, would rebut such presumption. What force, then, should be given to words tending to evidence an intent on the part of the grantor to exclude himself from the enjoyment concurrently with the grantee of the right conferred ? So far as the existence of such a presumption bears on the question, the obvious answer is, that the same force should be given to the expressions employed that would be given had the subject-matter been other than realty. The presumption, indeed, demands some positive evidence of an exclusive intent, but does not influence the force of the evidence of such intent.

If the foregoing propositions flow from the principles of law, and are compatible with the adjudicated cases, then we have a clear rule to govern us in seeking the construction of the grant in question.

We have only to ask what the parties had in contemplation as the right intended to be created, giving to the terms, or expressions employed by them in a technical sense, that technical force and effect conferred upon them by the adjudicated cases entitled to have weight as authority. We have now to look into the current of decisions to verify the grounds of our conclusions ; but that we may the better understand their bearing and force, it is proper to observe some of the features in the various instruments which have received judicial construction as bearing on the question of intent.

In all the grants of mining rights, from the earliest reported, cases down to the present time, there is a striking similarity in the terms used to describe the character of the rights intended to be conferred. It is described, substantially, as a right to enter certain designated premises, and to search for minerals, to mine or work them, appropriate and sell them. In some cases the premises may be used for manufacture only to the extent of preparing the raw material for use or sale ; in other cases, like the case in hand, the right to use the premises for the purpose of manufacture is unlimited, as to the nature and extent of the manufacturing powers. The right uniformly embraces authority to go upon the land of another, and perform there certain acts which could only be justified under authority, derived from the owner, of severing from the land certain portions of the body of the land, so as to become personal property, and appropriating the same as against the right of the owner and all other persons.

Such a right may exist perfect in the hands of a grantee, and yet not exclude the right of the grantor or owner to take from the land like substances, for his own use, so that he does not obstruct or impede such operations as the grantee may have set on foot, in virtue of his grant.

Although the right to mine in the lands of the grantor, may extend to all minerals, or to all of a given class, yet that does not exclude the grantor from appropriating minerals of that description, provided he does not obstruct the operations of the grantee. In a word, the possession of a right to go upon the lands of another to search for, sever, remove and appropriate any or all minerals, or any or all of a given class, does not exclude the owner of the land from taking to his own use, minerals of the same character and class from the premises embraced in the grant. Nor does the fact that such right is, by the terms of the grant, an assignable interest in the hands of such grantee, operate to the exclusion of the grantor.

When, however, the grant evidences an intent to exclude the grantor, such intent provides whether the grant extends to all mineral substances, or to all of one or more classes.

There are three modes in which the intent to exclude the grantor has been expressed: first, by terms importing a sale and conveyance of the minerals, as such, in which case the grantor’s right is ex-eluded, by a necessary implication, from, the possession of full proprietary right on the part of the grantee; second, by words of conveyance, conferring on the grantee exclusive power over the subject-matter of the grant; and, third, by provisions excluding the grantor from the performance of acts appropriate to him as owner of the land, where the effect of such exclusion is to leave unlimited control in the grantee of all materials to which the mining right relates.

An intent to exclude the grantor, though, not expressed in the body of the deed, may be implied from the nature of the consideration. The fact that the grantee is bound to pay for the substances appropriated by him according to the quantity realized, at an agreed rate, whether in kind or in money, does not, of itself, disclose an intent to exclude the grantor. But if the consideration appears to include a value fixed by the parties on the whole mineral deposit, and is demandable absolutely under the contract, without depending on the value of the actual result from the mining operations of the grantee, the grant is regarded as a sale of the mineral, and, as to it, the grantor is excluded.

We will now look into the cases, in order to verify the deductions from them already stated.

Lord Mountjoy’s case (Co. Lit., 165,) determines that a reservation of the right to take minerals and turf, although existing as an assignable and heritable interest, does not necessarily exclude the owner of the land. In that case, there were no words expressive of an intent to exclude the owner of the land, independent of the nature of the thing reserved. It is true, the reservation must be regarded as made upon consideration, but the consideration, whatever it may have been, was not in a form enabling the Court to conclude that, in fixing that consideration, the parties had acted upon a real or assumed valuation of all the materials subject to appropriation under the terms of the reservation.

The authority of this case has been recognized in this State, in Clark vs. Way, 11 Rich., 624; in Pennsylvania, in Caldwell vs. Fulton, 31 Penn., 624, and Funk vs. Haldeman, 53 Penn., 229.

Wilson vs. McKreth (3 Burr., 1824,) holds that one may have, as against the owner of the land, an exclusive right to take the turf. It is worthy of notice that, from all that appears in that case, the right of the plaintiff may have been limited to so much as he should require for a particular use. The question of exclusiveness was not treated in that case as at all dependent on the question, whether, in its nature, the right conferred was corporeal or incorporeal, but wholly on the terms of the grant or prescription under which it was claimed.

Chitham vs. Williamson (4 East., 469,) followed Lord Mountjoy’s case. Lord Ellenborough says, in that case, “no case can be named where one who has only a liberty of digging for coals in another’s soil, has an exclusive right to the coals, so as to enable him to maintain trover against the owner of the estate for coals raised by him.” This is far from saying, that such an exclusive right cannot be created by the use of suitahle language in the grant. It is only authority for saying, that exclusion will not be implied from the naked fact of a grant of that nature.

Doe vs. Wood (2 Barn. & Ald., 724,) contained nothing to take it out of Lord Mountjojy’s case.

The question was, whether the grant operated as a demise or a license merely. The discussion of the question by Abbott, C. J., shows, that the question of exclusiveness, as settled by the language and intent of the grant, was regarded as laying at the foundation of the question, whether the instrument could take effect as a demise. It was not in terms a demise, and could only be made to operate as such, when the right intended to be conferred was of such a nature as to be the proper subject of a demise. The consideration of that grant tended rather to strengthen than rebut the presumption, that the grantor did not intend to divest himself of the entire property of the minerals, for, instead of its being an entire sum, including the value of all materials subject to appropriation under it, it Avas a reservation of a share of the minerals, as such. The idea of a grant, operating as a sale or demise of the minerals themselves,, is distinctly recognized, and the casé before the Court distinguished from one resting on a grant of that nature.

It is fairly inferable from the case, that had the grant conferred an exclusive right of mining for a term of years, it would have been regarded a demise, although the subject-matter was not an opened mine, but merely minerals contained in the land. This proposition is as distinctly recognized as it could Avell bo, without being directly ruled by the decision.

Muskett vs. Hill, 2 Bering., N. C., 694, while adhering to Doe vs. Wood, goes a step further, holding, under a grant closely resembling that in Doe vs. Wood, that a license of that character could operate as a grant in respect of minerals taken under its authority, and therefore constituted an assignable interest in the hands of the licensee. Clark vs. Way, 11 Rich., 624, applied the principles of Lord Mountjoy’s case to the case of a right to take timber in the land of another. The applicability is put distinctly on the ground that the grant contained no words of exclusion. Caldwell vs. Fulton, 31 Penn., 475, is a leading Pennsylvania case bearing on this question. The adjudications of the Courts of that State, in this branch of the law, are entitled to great consideration, both for the extent and value of the mining operations that have been affected by such adjudications, and for the great learning and experience of the Judges from which they have emanated. Apart from the nature of the consideration of the grant in Caldwell vs. Fulton, it was distinctly ruled by Lord Mountjoy’s case. Judge Woodward, who delivered the opinion of the Court in a previous case between the same parties, both in that case, and in Funk vs. Haldeman, 53 Penn., 229, recognized the authority of Lord Mountjoy’s case, as reported by Lord Coke, under the weight of authority that had, both in the English and American Courts, sanctioned its rulings, but held that the grant then under consideration was to be regarded as a sale, for a valuable consideration, of the absolute and exclusive right to all the coal under the grantor’s land. The opinion in the recent case reported in 31 Penn., 475, was delivered by Judge Strong. This opinion does not so distinctly appear to place the decision on the ground of the nature of the consideration paid, but that such was the turning point of the ease distinctly appears in Clement vs. Youngman, where the same Judge states the point decided in Caldwell vs. Fulton. Clement vs. Youngman, 40 Penn., 341, contains this important expression : “In Caldwell vs. Fulton we held that a grant of an unlimited right, litle and privilege to dig and take away the coal, in a designated tract of land, to any extent the grantee might think proper, and for a consideration, presently paid, was a grant of the coal itself, and not merely a license or incorporeal right.” To this view of Caldwell vs. Fulton, the Court declares itself as adhering. The grant in that case related to two distinct kinds of material to be found on the premises, namely, iron and limestone. The Court held that the agreement was not intended by the parties to confer an absolute right to either the ore or the limestone, on the ground that, as it regards the ore, the only consideration stated was an agreement to pay for the amount of ore actually taken, and as to the limestone, no consideration of any kind was stipulated for, besides the limestone was only to be taken to be used in the manufacture of iron from the ore. This case is in entire harmony with Lord Mountjoy’s case, and is distinguishable from Caldwell vs. Fulton by the fact that there was no consideration stipulated for, that implied a sale of all the minerals of the designated kinds on the premises. It holds that an agreement to pay a stipulated price for the minerals actually taken, estimated upon the quantity taken, is not such a consideration as implies a sale of the whole mineral content. In this last respect the case resembles Doe vs. Wood, with the exception, that the consideration stipulated for, in that case, was a share of the minerals, instead of a fixed equivalent in money. This case treats the question as to whether the right granted is corporeal as depending upon the intention of the parties as to its exclusiveness, as derived from all parts of the instrument construed together.

Glonninger vs. Franklin Coal Co., 55 Penn., 7. The grant in this case was held not to be exclusive on two grounds: first, the consideration was a merely nominal sum ($6.50); and, second, the right to take coal was limited to the amount required by the grantee for his use as a blacksmith. In construing that part of the grant that operated to limit the amount to be taken, the Court took into account the state of knowledge, as to the value of coal, and its uses at the time of making the contract.

Graves vs. Hodges, 55 Penn., 564, holds that an agreement to pay a stipulated price per ton for ore taken, does not import an exclusive privilege. Grubb vs. Bayard, 2 Wall. Jr., 81" court="None" date_filed="1851-04-15" href="https://app.midpage.ai/document/grubb-v-bayard-9298837?utm_source=webapp" opinion_id="9298837">2 Wall., Jr., 81, where the consideration was also an amount stipulated to be paid per ton for the mineral taken, holds that the grant was not exclusive. Thus we find, in eases entitled to weight as authority, the proposition that when the grantee has unlimited authority over the subject-matter of the grant, a consideration consisting of an entire sum, including the valuation fixed by the parties upon the whole mineral content of the land, or of the class of minerals to which the mining right relates, demandable absolutely under the contract, furnishes evidence of an intent to confer an exclusive right on the grantee. On the other hand, the proposition is not disputed by any of the cases regarded as of leading authority on this subject.

This conclusion appears entirely reasonable. No presumption of an intent to reserve any part of the thing granted ought to prevail against ground of reasonable inference, that the price received by the grantor is an equivalent for the whole thing granted. Certainly in equity such a presumption could not be allowed to prevail over the manifest equity disclosed by the nature of the consideration.

We are not called upon in this case to decide that the fact of such a consideration, standing by itself, is sufficient to characterize the contract as intending an exclusive right, but as in the present case there are other evidences of such intent, we are only required to hold that the existence of such a consideration tends to establish an exclusive intent. We hold, therefore, that the grant to the defendant Moses was intended to, and did in fact, exclude the grantor, Mas-sot, from all right to appropriate to himself any of the mineral substance to which the grant relates during the term of the contract, and from conferring such right upon any other person, as against the grantee or those of right claiming under the grant.

Had Moses’ right been unlimited as to time, the grant would have operated as an absolute sale and conveyance of the mineral itself, as in the case of Caldwell vs. Fulton. The limitation of the right to ten years prevents it from having this effect, but does not change the character of the grantee’s authority during that period, such authority being that due to a full proprietorship of the minerals during the term. The words “ sell and convey ” cannot have their full effect, in consequence of the limitation in point of time, but in conjunction with other expressions of the grant, they serve to fix the character of the grantee’s power and right, as a full proprietorship, during such term. This conclusion is not affected by the limitation imposed, as to the extent of the surface to be worked at any given time, as that limitation does not impair the right to work the whole, but limits the use of the surface of the ground as an incident to the operation of searching for and removing the minerals.

It is clear that the grant operated as a demise of the minerals for the term of ten years, and, therefore, the interest of the grantee was divisible.

Three things are necessary to a demise ; first, a proper subject-matter; second, possession for a term of years: and, third, a right to the profits during such term. The argument in behalf of the plaintiff is, that the powers conferred by the grant does not relate to any thing corporeal, of which possession may be had. If this conclusion be established, it would result, as contended for by the plaintiff, that the power being incorporeal, it was indivisible, and the defendant, having attempted to divide it, had destroyed it.

The answer to this argument is supplied by the authorities, as well as by the reason of the case. The law of England, on this subject,is stated by Mr. Bainbridge, in his work on the Law of Mines and Minerals, 163. He states that minerals contained in the land, although unopened, as well as opened mines, are capable of forming “ a distinct possession or inheritance,” and that if it was requisite that livery of seizin should be made of them, still they are susceptible of such livery. That author does not cite the authority of adjudicated cases to these propositions, as fully as might be expected. It is, however, not unlikely that this view of the law, so distinctly shadowed forth in Doe vs. Wood, 2 Barn. & Ald., 924, should have been practically acted upon without further controversy.

In Doe vs. Wood, the question was whether ejectment would lie in the case of unopened mines, by one having the right to mine, though not entitled as owner or lessee of the land. If property of that kind had been incapable of sustaining a possessory title, the answer to the action would have been complete without any further enquiry, in order to ascertain the intention of the parties to the grant. The fact that the Court regarded it as important to ascertain whether the parties intended it as a demise, shows, conclusively, that it was capable of acting as a demise, if the parties so intended. This case leaves no doubt as to how the law of England stood, and if no other authority for so doing existed, Mr. Bainbridge would have been justified in stating, in the manner in which he has stated it, the law of that country.

Caldwell vs. Fulton, 31 Penn., 475, holds that, by the law of Pennsylvania, minerals unsevered, are land, capable of being held and transferred, apart from the ownership of the land.

This determination necessarily involved the idea, that a possessory title could be had “ in minerals in place,” and, therefore, we should infer that a grant or conveyance, intended by the parties to operate as a transfer of property of that character, for a term of years, accompanied by an exclusive enjoyment of the profits thereof, would create a demise. There are, however, expressions in Caldwell vs. Fulton, and Clement vs. Youngman, that involve this deduction in some perplexity, as it regards the effect of the Pennsylvania cases. In these cases stress was laid on the fact that the right of the grantee was wholly unlimited in respect of time, quantity and use. It is not difficult to see the bearing of that fact in Caldwell vs. Fulton, for there the conclusion that the grant operated to exclude the grantor rested on the fact that the parties intended a sale and conveyance. It was important to show that the entire interest in the coal was transferred. But it would not seem to follow that there was no other mode by which the grantor could have conferred an exclusive right on the grantee, than by making an instrument that was capable of operating as a sale and conveyance absolute of the whole content of coal.

The difficulty as to the construction intended by the Pennsylvania cases arises from expressions employed in the opinions. The opinion of Judge Woodward, reported in 31 Penn., 475, is clear upon this point. He sought to rest the case upon the inferences arising out of the consideration. From the consideration he inferred a contract of sale of the whole content of coal. His language is, “ he sold for a valuable consideration all he had in sixteen acres, and all the coal in his other land. I say all, because the grant is limited to no time or quantity or purpose or person.” The absence of a limitation as to time is here referred to as defining how mueh was sold, and not for the reason that such a limitation would be necessarily decisive against the grant operating as exclusive against the grantor.

Judge Strong, in the opinion in the second case that arose between the parties to Caldwell vs. Fulton, sought to place the right of the grantee on quite different ground from that previously taken by Judge Woodward. His theory of the case, started with the proposition that “minerals in place” were land, and might be transferred as such. He then lays down the principle, that a conveyance of the whole profit of land is a conveyance of the land itself. In order to apply these principles to the case in hand, it was requisite to show two things: first, that coal was a profit of land ; and, second, that the grantee acquired a right to the whole profit of coal. In answering the objection that coal being but part of the profit of the land, the principle could not bh applied, he holds that the subject of the grant being coal, the whole usufruct and dominion were granted. In other words, coal in place was, in itself, land, and might be conveyed as such. It is difficult to understand why, if coal is land, it should be necessary to treat it as merely a profit of land. According to this view a sale of coal was a sale of land eo nomine. Why, then, resort to a principle which is only important when the laud, as such, is not conveyed? To the operation of this principle he ascribes the conclusion in Lord Mountjoy’s case, Cheatham vs. Williamson, Doe vs. Wood and Grubb vs. Bayard.

An examination of the eases last mentioned will show that the idea that a conveyance of the profit of land is a conveyance of the land, did not enter into the grounds of decision in those cases. Of Lord Mountjoy’s case, Judge Strong says that the grant was of “ only sufficient for a single specified purpose, viz: the manufacture of alum and copperas.” And thus it was not in conflict. In other words, if the right in that case had not been subject to that particular limitation, it would have been held to exclude the grantor. It is far from clear that the grant in Lord Mountjoy’s case, so far as it related to ores, was subject to the limitation that clearly applied to the turf; at all events, that solution was not indicated in the case as reported.

It is very clear that Lord Ellenborough did not so understand Lord Mountjoy’s case, when, in Cheatham vs. Williamson, he deduced from that case the proposition, that one having a liberty of digging for coals in another’s land, has not an exclusive right to the coals, as against the owner of the soil. Had the grant in Lord Mountjoy’s case been unlimited, as to the purpose for which the grantee should take the turf or minerals, it still would have been only “ a liberty of digging” in another’s soil, and the remark of Lord Ellenborough would be equally applicable to the case.

The comment made by Judge Strong, on Cheatham vs. Williamson, that that case was decided upon the idea that livery of seizin was indispensable, does not appear to be sustained by the report of that case in 4 East. Lawrence, J., says “ the covenant, therefore, can only operate as a grant, but will not pass the land itself without livery.”

The allusion to the want of livery arose from the fact that E. Hyde was only the owner of the equity of redemption, and had not the legal estate in him, and as the right to mine was reserved in his deed, it was necessarily unaccompanied by livery, for E. Hyde, not having the legal estate, could not make livery. The remark of Lawrence, J., if entitled to be regarded as disclosing the point of the case, falls far short of making the assertion that such an interest as an exclusive grant would have created was incapable of being attended by livery.

Judge Strong’s comment on Doe vs. Wood, (2 Burr, and Ald., 719,) fails to elicit the full import of that case. It was not the fact that the grant was limited to a term of twenty-one years, that was the ground of holding it a license. The question was whether it was a demise or license. If a demise, it would be the limitation of a term of years that would make it such. That, of course, then, was not the turning point as between a demise and a license. Abbott, C. J., states the question as follows: “ One of the questions was whether this indenture operated as a demise of the metals and minerals, so as to vest in the lessee a legal estate therein, during the term, upon the condition mentioned, or only a license to work and get the metals and minerals that might be found within the limits described.” Here is a clear conclusion that a legal estate in the mines and minerals might be created for a term of years, and so far as to operate as a demise. The question was, then, had the parties done so? The conclusion of the Court was, that by the terms of the grant the grantee did not take a present interest in the minerals as proprietor, but that his proprietary right arose only when the minerals were severed from the land. It will be borne in mind, that in that case the grantor retained an interest in the minerals themselves in the form of a share of all minerals raised. That decision clearly rests on the idea that the grant was not exclusive, because it was nothing more than a liberty to dig for minerals in the land of another. Had there been anything in the granting part of the deed, or in the consideration, showing that the parties intended it to be exclusive, it is clear that it would have been upheld as a demise. This shows clearly that the limitation, as to time, was not the turning point in the case. That case professed to follow Lord Mount-joy's case, and we are at liberty to conclude that the construction put upon the grant was the result of the principle settled in that case. This view seéms to strengthen the idea that has already been advanced in regard to Lord Mountjoy’s case, that the Court allowed a presumption, in the absence of 'words of exclusion, that the grantor did not intend to divest himself of his proprietary right as owner of the land, but to admit the grantee to a participation in certain of those rights. The conclusion of Judge Strong is summed up in these words: “ When the intent is to give the entire usufruct, and power of disposal, the legal title must be held to pass.” Standing by itself, this proposition is not controverted, nor was it necessary .to go beyond the mere affirmation of that proposition in Caldwell vs. Fulton. But it does not follow that because the entire usufruct and power are limited to a term of years, that a legal estate by way of demise will not pass. It will be observed that Judge Strong speaks of “ the entire usufruct and power of disposal.” There is a well defined distinction between a deed of the usufruct and the power of disposal as it regards its competency as an actual conveyance of the land to which it relates. A deed of the usufruct of land can only convey the land itself under the operation of a rule of construction enlarging the terms of the deed beyond their direct import, on the principle of implication. Not so in the case of a deed conveying the “power of disposal,” when such a conveyance is made for the use and enjoyment of the grantee.

In the latter case, the subject of the grant is dominion over the land. All that a deed purporting to convey the land, specifically, can pass, is the dominion over the land.

The deed does not affect the physical attributes of the land, or confer on it any quality fitting it to become subject to the dominion of the new owner. It simply transfers to the grantee what the grantor previously possessed. “ Power of disposal is dominion over the land.”

When, therefore, the deed conveys both the usufruct and power of disposal, it is unnecessary to resort to the rule, that conveyance of the whole usufruct is the conveyance of the land itself, for the deed acts at once, by a principle of interpretation within itself, asa conveyance of the land.

Regarding coal as land, the deed in Caldwell vs. Fulton did not merely convey the usufruct of land, but conveyed complete and absolute power of control over land, for the use and enjoyment of the grantee.

For the same reason, had that deed conveyed the same power of control and disposal for a term of years, it would have created a demise. It is quite evident, from the summary already quoted, as made in Clement vs. Youngman as to the point ruled in Caldwell vs. Fulton, that the Court, on mature consideration, was disposed to adhere to the conclusion that the true point of distinction between that case and Lord Mountjoy’s case, was the difference in the inferences to be drawn from the considerations of the respective grants.

No one disputes the validity of a lease of opened mines, nor that such a lease covers the stratum or vein of minerals, so far as embraced within the lands described, and is not limited to the openings, which are merely conveniences for getting access to the mineral, nor to the superficial occupation of the ground.

Extensive workings may serve to develope the value of a stratum or vein of mineral, but are not essential to complete the legal idea of property in such substances.

The legal conception of land is that of a right, within the limits of law, to control some part of the earth embracing its surface and content.

In general, conveyancing deals only with the surface of the ground, and, accordingly, we have come to consider surveyors’ lines as the true boundaries of property. If we find difficulty in conceiving of the ownership of a vein of mineral as land, it probably arises from the fact that we cannot conceive of the outlines of such property being traced by surveyors’ lines. But this is a mere superficial idea of land. A man’s possessions, as the owner of land, is a solid body of rock, soil and water, bounded by planes instead of lines. There is no good reason why he should not, if he chooses, divide his possessions with those who can make a more advantageous use of it than he can make, by horizontal planes, or oblique planes, so long as the law can comprehend and effectuate his purpose.

Such is the practice of mankind, and it is due to the practice of the law that its ideas should keep pace with the habits and usages of practical life.

The notion of accessibility forms no part of the idea of land, yet the difficulty that arises in attempting to form a legal conception of a vein of mineral as land, springs from the idea of its inaccessibility. As it regards livery of seizin, it is not, now-a-days, a question whether the owner of the soil can reach it, in order to perfect a symbolical delivery, but whether the statute of uses can reach it so as to give effect to a deed of bargain and sale.

The interest of Moses being a demise, it was competent for him to divide it, and, therefore, the ground of the bill fails, and it must be dismissed with cost.

Moses, C. J., and Wright, A. J., concurred.