[*196] as in a case mentioned by Lord Eldon, where an estate had What acts are been sold two hundred years before, with a reservation of deemed waste. coal mines, which were at length brought to bank by the application of a machinery at an immense expense by the person in possession of the surface who had forgotten the reservation. The other party then came forward, and upon the trial of an issue, Mr. Justice Buller directed the jury to presume a grant, from the circumstance of the proprietor having stood by during the whole of the expenditure; this direction, however, was afterwards established to be erroneous.(a) (a) Adair v. Shaftoe, cit. 19 Ves. 156. giving notice of such discovery. Every person discovering a mine of gold or silver within the state, before he can work the same, must give notice of it in writing, to the secretary of state, describing particularly the nature and situation of the mine. Such notice is to be registered in a book, to be kept by the secretary for that purpose. After the expiration of the term above specified, the discoverer of the mine, or his representatives, are to be preferred in any contract, for the working of such mine, made with the legislature, or under its authority. See 1 R. S. of N. Y. p. 281. In Pennsylvania, the fifth part of all gold and silver ore is reserved for the use of the state, to be delivered at the mine clear of all charges. Dunlop's Laws of Penn. p. 132. In the case of the State of Georgia v. Canatoo, (National Intelligencer, Oct. 24th, 1843,) it was held that the right and title to land included a right to all the mines and minerals therein, unless they were separated from the land by positive grant or exception; and that if the state made a grant of public lands to an individual without any exception of mines and minerals, the mines and minerals would pass to the grantee as part and parcel of the land; and that the Cherokee Indians had a right to dig and take away gold and silver from the lands in their reserves, or lands not ceded to the state, and were not amenable in trespass for so doing, inasmuch as they had as good a right to the use of the mines and minerals as to the use of the land and its products in any other respect; that they were lawful occupants not chargeable with waste, for the right of the state was a right of pre-emption only, and never considered otherwise by the government of Great Britain, when it claimed and exercised dominion over this country, nor by our own government which succeeded to the British powers. Unless expressly excepted, mines would be included in the conveyance of land, without being expressly named, and so vice versa, by a grant of a mine, the land itself, the surface above the mine, if livery be made, will pass. Co. Litt. 6; 1 Tho. Co. Litt. 218; Shep. Touch. 26; 15 Vin. Abr. 401; 2 Supp. to Ves.jun. 257; 10 East. 273; 1 M. & S. 84; 2 B. & A. 554; 4 Watts, 223, 346. When land is let on which there is an open mine, the tenant may, unless restricted by his lease, work the mine. 1 Cru. Dig. 132; 5 Co. Rep. 12; 1 Chit. Pr. 184, 185. And he may open new pits or shafts for working the old vein, for otherwise the working of the same mine might be impracticable. 2 P. Wms. 388; 3 Co. Litt. 237; 10 Pick. Rep. 460. Persons for and against whom injunc tion granted. *CHAPTER IX. IN WHAT CASES, AND FOR AND AGAINST WHAT PERSONS, A Prohibition and writ. The proceedings at common law in Waste, were originally by prohibition out of Chancery, which was the foundation of the suit: it was directed to the sheriff, and if not obeyed, and an alias and pluries produced no effect, a writ of attachment was issued out of Chancery, returnable in a court of common law, which was the original writ of the court.(a)[1] By the statute of Westm. 2, this writ was taken away, and the writ of summons substituted in its place. Lord Chief Justice Eyre, in noticing Lord Coke's assertion, when treating of prohibition at common law, that it "may be used at this day," observes, that these words, if true at all, can only apply to that very ineffectual writ directed to the sheriff empowering him to take the posse comitatus to prevent the commission of waste intended to be done.()[2] How far this (a) 1 B. & P. 121. [1] At common law a prohibition from the court of chancery, which was considered as the foundation of a suit to restrain or punish the commission of waste, lay only against tenant in dower, tenant by the curtesy, and guardian in chivalry; but it was extended by the statute of Gloucester. 6 Ed. 1, c. 5, and other statutes, to tenants for life, and tenants for a term of years. 22 Vin. Ab. Waste, S. [2] Lord Chief Justice Eyre in the case of Jefferson v. Bishop of Durham, 1 Bos. & Pull, 120, learnedly expounded the state of the common law with regard to waste, as follows: "At common law, the proceedings in waste was by writ of prohibition from the court of chancery, which was considered as the foundation of a suit between the party suffering by the waste, and the party committing it. If that writ was obeyed, the ends of justice were answered. But if that was not obeyed, and an alias and pluries produced no effect, then came the original writ of attachment out of chancery, returnable in a court of common law, which was considered as the original writ of the court. The form of that writ shows the nature of it. It was the same original writ of attachment which was, and is the foundation of all proceedings in prohibition, and of many other proceedings in this court, at this day, &c. That writ being rereturnable in a court of common law, and most usually in the court of common pleas, on the defendant appearing, the plaintiff counted against him; he pleaded; the question was tried; and if the defendant was found guilty the and against remedy continued as applicable to ecclesiastical persons will Persons for be noticed hereafter. This writ, being returnable in a court whom injuneof common law, the question was tried; and if the defendant tion granted. was found guilty, the plaintiff recovered single damages. The statute of Gloucester(a) directed *that the tenant should forfeit the place wasted and also treble damages[1] (a) 6 E. 1, c. 5. plaintiff recovered single damages for the waste committed. Thus the matter stood at common law. It has been said (and truly so, I think, so far as can be collected from the text writers,) that, at the common law, this proceeding lay only against tenant in dower, tenant by the curtesy, and guardian in chivalry. It was extended by different statutes (Stat. of Marlbridge ch. 24; and of Gloucester, ch. 5,) to farmers, tenants for life, and tenants for years, and I believe, to guardians in socage. That which these statutes gave by way of remedy, was not so properly the introduction of a new law, as the extension of an old one to a new description of persons. The course of proceeding remained the same as before these statutes were made. The first act which introduced anything substantially new, was that (Stat. of Gloucester, ch. 13,) which gave a writ of waste or estrepement, pending in the suit. It follows, of course, that this was a judicial writ, and was to issue out of the courts of common law. But except for the purpose of staying proceedings pending a suit, there is no intimation, in any of our text writers, that any prohibition could issue from those courts. By the statute of Westminster 2d, the writ of prohibition is taken away, and the writ of summons is substituted in its place; and although it is said by Lord Coke, when treating of prohibition at common law that it may be used at this day,' those words, if true at all, can only apply to that very ineffectual writ directed to the sheriff, empowering him to take the posse comitatus, to prevent the commission of waste intended to be done. The writ directed to the party, was certainly taken away by the statute. At least, as far as my researches go, no such writ has issued, even from chancery, in the common cases of waste by tenants in dower, tenants by the curtesy, and guardians in chivalry, tenants for life, &c., since it was taken away by the statute of Westminster 2d. Thus the common law remedy stood, with the alteration above mentioned, and with the judicial writ of estrepement introduced pendente lite." [1] In Ohio, a tenant in dower, for voluntary or permissive waste, forfeits the place wasted, but the statute does not give treble damages. Tenant by the curtesy does not forfeit. 2 Chase, 1316; Walk. Intro. 326, 329. In Massachusetts, Maine and Michigan, the penalty is forfeiture with damages. Mass. Rev. St. 630. See St. 1841, 187; Mich. Rev. Stat. 265; Me. Ib. 393. In Maine, the statute of Gloucester has been held not to be in force, nor does the action of waste lie against a dowress. Perhaps for actual waste, an action on the case would lie. Tenant by the curtesy is liable for waste. Smith v. Follansbe, 13 Maine, 273; Me. Rev. St. 567. In Rhode Island, the action of waste is still in use for recovery of the freehold estate wasted. Loomis v. Wilbur, 5 Mass. 13. In Indiana, (Ind. Rev. L. 210-11,) a widow forfeits the place wasted to the immediate reversioner or remainderman. But, for negligent waste, she is merely liable in damages. A statute requires her to keep the estate in repair. In [*198] Persons for and against whom injunction granted. Action of waste. The action of waste has fallen so completely into disuse, that the case of The Keepers, &c. of Harrow School v. An New Hampshire and Vermont, a widow is made liable to an action, for strip or waste done or suffered. In Maryland, at the suit of a devisee or his guardian. 1 Verm. L. 159; N. H. L. 189; Verm. Rev. St. 291; Md. L. 407. In Illinois, (Illin. Rev. L. 237, 625,) she forfeits to the immediate reversioner, having a freehold or inheritance, where she wantonly or designedly commits or suffers waste. But for negligent or inadvertent waste, the claim is for damages only. In both cases, the remedy is an action of waste. If she marry again, the husband is liable with her for waste done by her before, or by him after marriage., In Connecticut, until a recent period there was no statute against waste by a tenant for years, and, it is said, few actions of waste are brought. A tenant for life, holding by act of party, might commit waste or authorize another to do it, without incurring any liability. But by a late act, all particular tenants for life or for years, though holding by act of party, are forbidden to commit waste, with a saving of vested rights. The statutes of Marlbridge and of Gloucester are not in force; but the provisions of the former are adopted as to tenants in dower and by the curtesy, upon the ground of general reasonableness. 1 Swift, 89, 519; Moore v. Ellsworth, 3 Conn. 487; Crocker v. Fox, 1 Root, 323; Rose v. Hays, Ib. 244; Conn. St. June 6, 1840, p. 28. In Kentucky, (2 Ky. Rev. L. 1530; Robinson v. Miller, 2 B. Monr. 287,) the statute of Marlbridge is re-enacted-"farmers shall not make waste, nor sale, nor exile of house, woods and men," &c. without licence. For such waste, they shall yield full damages, and be punished by amercement grievously. But a subsequent chapter of the Revised Laws provides an action of waste, giving forfeiture and treble damages, according to the statute of Gloucester. It has been held that a reversioner cannot recover the land from a tenant in dower for waste, by ejectment. Only the immediate reversioner in fee, of an estate for life, can maintain an action of waste. Hence, during the continuance of an intermediate life estate between such reversioner and the party who commits waste, the latter is not liable, and if he die before the intermediate tenant, the action is forever gone. In New York, this rule has been changed by statute; but the reversioner recovers, without prejudice to the intervening estate. In North Carolina an action lies at the instance of him in whom the right is, against all tenants committing the waste. Co. Lit. 53 b, 218 b, n. 2; Paget's case, 5 Rep. 76 b; Bray v. Tracy, Cro. Jac. 688; 1 N. Y. Rev. St. 750; 1 N. C. do. 609. Tenant for life is liable to an action, for waste committed by him, though he have since assigned his estate. 1 Cruise, 90. Lord Coke says, that an heir cannot have an action of waste for waste done in the life of his ancestor, nor a parson, &c. in the time of the predecessor. So if tenant for years, having committed waste, die, an action of waste does not lie against the exccutor, &c. But in Virginia, Kentucky, North Carolina, New Jersey, New York, Michigan, Maine, and Massachusetts, statutes provide, that the heir may sue for waste done in the time of his ancestor. And in Massachusetts, Maine, and Michigan, an action for waste survives against executors, Mass. Rev. St. 630; 1 Vir. Rev. C. 277; 2 Ky. Rev. L. 1530-1; 1 N. C. R. St. 610; 1 N. J. R. C. 209; 2 N. Y. R. S. 334; Mich. Rev. St. 496–7; &c. Me. lb. 568. In order to sustain the action of waste, the reversion must continue in the derton(a) has been mentioned as the only instance of it re- Persons for and against membered by persons now living;[2] an action on the case whom injunc (a) 2 B. & P. 86. same state as when the waste was done; for if the reversioner grant it away, or lease it for years, unless it be "in futuro," the waste is dispunishable, even though he take the whole estate back again. The same effect is produced, though he grant the reversion to the use of himself and his wife, and of his heirs. The action of waste consists in privity. Co. Lit. 53 b, 54 a. If tenant by the curtesy or tenant in dower assign his or her estate, and waste be done by the assignee, the heir may have an action of waste against either of such tenants and recover the land from the assignee. In New York, it is provided, that the action may be brought against the assignee. And if the heir have also assigned, the action lies in favor of his assignee, against the assignee of the tenant, because the privity is destroyed. In other cases, the action shall be brought against him who did the waste, for it is in nature of a trespass. Co. Lit. 54 a; Bates v. Shraeder, 13 John. 260; 2 N. Y. R. S. 334. If a tenant, after assignment, continue to take the profits, he is liable for waste. Co. Lit. 54 a; 1 Vir. R. C. 277; 1 N. J. do. 209-10; 2 Ky. R. L. 1530-1; 1 N. C. Rev. St. 609. Lord Coke says, a wife, holding an estate by survivorship shall be punished for waste done by the husband in his life, if she agree to the estate, though there hath been variety of opinions in our books. Co. Lit. 54 a. But an action of waste does not lie against the husband of a woman, tenant for life, after her death-the former having committed waste during her life; for he was seized only in her right, and she was tenant of the freehold. Otherwise, if she was tenant for years, because the term vested in him. If a tenant for life assign on condition, and the grantee do waste, and the former re-enter for condition broken; the action of waste lies against the grantee, and the place shall be recovered. Ib. Although the statute of Marlbridge prohibits only farmers from committing waste, yet a tenant is responsible for the waste, by whomsoever done, the law regarding him as having power to prevent it, while the landlord has no such power, not being on the land. The reversioner looks to the tenant, and he has a claim over in trespass, against the wrong doer himself. Only the act of God, of the public enemy, or of the lessor himself, will excuse the lessee. He is like a common carrier. 1 Cruise, 124; 4 Kent. 77; White v. Wagner, 4 Har. & J. 373. Lord Coke says, even an infant, and baron and feme, shall be punished for waste done by a stranger. But although the reversioner may hold the tenant liable for waste done by a stranger, he may also, at his election, bring an action on the case against such stranger, for any injury in its nature permanent-as, for instance, digging up the soil. The action of waste lies against a lessee only. Co. Lit. 54 a; Ross v. Gill, 4 Call, 252; Randall v. Cleveland, 6 Conn. 328. (See Wilford v. Rose, 2 Root, 20.) [2] Blackstone's account of the action of waste at common law, and as awarded by statute, is as follows:-"A writ of waste is an action partly founded upon the common law, and partly upon the statute of Gloucester; and may be brought by him who hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by curtesy, or tenant for years. This action is also maintainable in pursuance of tion granted. |