English jurisprudence with the primary or etymological significance of the words, and gradually enlarging their meanings until their original derivation and early judicial application became all but obsolete. In this primary sense, a "mine" denoted an underground excavation made for the purpose of getting minerals; and, as a corollary, minerals primarily were the substances obtained through underground excavations.

The word "mine" was used in contradistinction to " quarry," and "minerals" meant substances of a mineral character which could only be worked by means of mines as distinguished from quarries. In other words, regard was there had entirely to the mode in which the substance was obtained, and not to its chemical or geological character.3

William's law dictionary defines "minerals" to be anything that grows in mines and contains metals," and "mines" is defined as " quarries or places whereout any"thing is dug; this term is likewise applied to hidden "treasure dug out of the earth." These same definitions recur in Tomlin's law dictionary.5

Lord Halsbury says: "I should think that there could "be no doubt that the word 'minerals' in old times meant "the substances got by mining; and I think 'mining' in "old times meant subterranean excavation.'

289. Enlarged meaning of "mine."-These primary significations were soon enlarged, so that in time the word "mine" was construed to mean, also, the place where minerals were found, and soon came to be used as an equivalent of "vein," 99.66 seam, lode," or to denote an aggregation of veins, and, under certain circumstances, to include quarries and minerals obtained by open workings.'

99 66

Midland Ry. Co. v. Haunchwood B. &. T. Co. (1882), L. R. 20 Ch. D. 552.

2 Darvill v. Roper, 3 Drewry, 294.

3 Bainbridge on Mines, 4th ed., p. 5.

* London, 1816.

5 London, 1835.

6 Magistrates of Glasgow v. Farie, L. R. 13 App. C. 657.

Midland Ry. Co. v. Haunchwood B. & T. Co. (1882), L. R. 20 Ch. D.

558; Stewart on Mines, p. 2.

290. "Mineral" as defined by the English and Scotch authorities. In reference to the term "mineral," we quote the following from Bainbridge:

"A mineral has been defined, in the narrow sense of "the word, to be a fossil or what is dug out of the earth, "and which is predominantly metalliferous in character. "The term may, however, in the most enlarged sense, be "described as comprising all the substances which now "form, or which once formed, part of the solid body of the "earth, both external and internal, and which are now "destitute of and incapable of supporting animal or vege"table life. In this view, it will embrace as well the bare "granite of the high mountains as the deepest hidden "diamonds and metallic ores.".

Mr. Stewart says:

"Both scientifically and popularly the term 'mineral' "has been applied to substances whose chemical and phys"ical properties are sufficiently uniform to admit of iden"tification and classification, whether they exist in a mine "or upon the surface of the ground.""

A few illustrations from comparatively recent authorities will enable us to understand the modern signification. given to the term "mineral" by the English courts.

In Midland Railway v. Checkley, Lord Romilly, master of the rolls, said:

"Stone is, in my opinion, a mineral, and, in fact, every"thing except the mere surface which is used for agricul"tural purposes. Anything beyond that which is useful "for any purpose whatever, whether it is gravel, marble, fire-clay, or the like, comes within the word mineral,' "when there is a reservation of the mines and minerals "from a grant of land."

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In Midland Railway Co. v. Haunchwood B. & T. Co.,1 Mr. Justice Kay expressed the view that "minerals" meant, primarily, all substances (other than the agricultural surface of the ground)" which may be got for manufacturing

"or mercantile purposes, whether from a mine, as the word "would seem to signify, or such as stone or clay, which are "gotten by open working."

In the leading case of Hext v. Gill, the house of lords announced the rule that a reservation of "minerals" includes every substance which can be obtained from underneath the surface of the earth for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the court to give it a more limited meaning."

In Attorney-General v. Welsh Granite Co.,3 Lord Esher, master of the rolls, said:

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min

"The many cases which have been cited go to establish "the definition, especially Attorney-General v. Mylchreest, "and Hext v. Gill, where Mellish, L. J., states the result of authorities. It is evident from these cases that "'erals' means substances which can be got from beneath "the surface, not by mining only, but also by quarrying, "for the purpose of profit."

In Magistrates of Glasgow v. Farie, before the house of lords, involving the interpretation of a reservation in an act of parliament authorizing the construction of waterworks, wherein it was provided that the undertakers of the project "shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased "by them," Lord Herschell thus announced his view:

"I think the reservation must be taken to extend to all "bodies of mineral substances lying together in seams, "beds, or strata, as are commonly worked for profit.'

In Loosemore v. Tiverton & North Devon Ry. Co.,7 Mr. Justice Fry, following Hext v. Gill, says:

? This doctrine was approved and followed in a later case (AttorneyGeneral v. Tomline (1877), L. R. 5 Ch. D. 750.)

(1887), 35 W. R. 617.

* (1879), 4 App. C. 294.

5 Waterworks Clauses Act, (1847), 10 & 11 Vict. C. 17.

6 L. R. 13 App. C., 685.

7 (1882), L. R. 22 Ch. D. 25.

"There being no such restrictive context in the present 'case, the inquiry is whether the clay which was got out "was clay which could be worked for a profit."

Lord Halsbury, in the Farie case (supra), criticises the doctrine of Hext v. Gill. He says:

"In the first place, it introduces as one element the circumstances that the substance can be got at a profit. It "is obvious that if that is an essential part of the defini"tion, the question whether a particular substance is or is "not a mineral may depend on the state of the market; "and it may be that a mineral one year is not a mineral "the next."

Lord Herschell, in the same case, thus expresses his views:

"In its widest significance the word 'mineral' probably 'means every organic substance forming a part of the crust "of the earth other than the layer of soil which sustains 'vegetable life. In some of the reported cases it seems to "be laid down or assumed that to be a mineral a thing. "must be of commercial value or workable at a profit. Be "that as it may, it has been laid down that the word min"'erals' when used in a legal document, or in any act of "parliament, must be understood in its widest signification, "unless there be something in the context, or in the nature "of the case, to control its meaning."

Of course, the element of profitable working is in no sense a part of the definition of the word in its primary or etymological sense.

While these criticisms of Lord Herschell are plausible when the primary or etymological signification of the word is considered, yet the doctrine of Hext v. Gill and the later cases following it may be fairly said to present a reasonable definition in the light of the progressiveness of the age and advancement in the natural sciences, with which the courts seem to have kept pace.

This element of commercial value, which to a large extent controls the acquisition of mining titles in the United States, is by no means new. The German codes contained

1 Magistrates of Glasgow v. Farie, (1888), L. R. 13 App. C. 689–690.

H

a limitation prohibiting the prospector from claiming mineral or ore which did not offer the basis for practical and lucrative mining or metallurgical operations. Under the French and Belgian systems, before a mining concession could be obtained, it was necessary "to ascertain whether "the land contains a layer which is susceptible of a prof"itable working."

In Sweet's dictionary of English law, we find the following definition: —

"In the most general sense of the term, minerals are "those parts of the earth which are capable of being got "from underneath the surface for the purpose of profit.'

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291. English rules of interpretation.—Mr. Stewart enunciates certain rules as being sanctioned by current authority in England and Scotland, governing the construction of the term "mineral." These are as follows:

"First-The word 'mineral,' when used in a legal doc"ument or in an act of parliament, must be understood in "its widest signification, unless there be something in the "context or nature of the case to control its meaning.

"Second-The meaning of the word 'mineral,' though "not easily restricted, yields to the context when the rela"tive positions of the parties interested, their intention, or "the substance of the transaction so indicates.

"Third-In doubtful cases, the custom of the district, or such usages without which a deed or statute would be "inconsistent may limit the word 'minerals.'

"Fourth-Where the terms 'mines' and 'minerals' are "both used in the same deed or statute, the word 'min"'erals' is not on that account to suffer limitation of its "meaning."4

In treating of the rules governing the interpretation of American statutory law, we will have occasion to recur to the foregoing.

1 Halleck's De Fooz on the Laws of Mines, p. 110.

2 London, 1882.

3 This definition was also adopted in Rapalje and Lawrence's law dictionary, published in America the following year.

4 Stewart on Mines, pp. 10-13.