(May 13, 1851.)
KANE, District Judge.
Is there anything in the deed which asserts, that Eoree intended to do more than enter into the ordinary covenant that, so long as there was iron ore on the 282 acres, Bennet and his assigns might work it if they chose, on paying a certain price per ton? I find the legal and apt phraseology in which a lawyer might embody such a covenant, and nothing more. The indenture in the case of Doe v. Wood, ■quoted at the bar, seems to me to resemble the grant of an exclusive incorporeal hereditament, much more than the covenant before us. It was contended in that case, that It should be regarded as a lease, and there was much in the words that gave countenance to such an interpretation. Thus it was argued, that the “full and free liberty to dig all metals and minerals, throughout the demised lands,” was tantamount to a sole grant of all the minerals, since two individuals could not both have full liberty so to dig; that the exclusive right which was engaged for to the adits or shafts, amounted to an exclusive right to the ore, for the ore could not be got out except by the adits; that the right to erect sheds, to make water-courses, and use all the water on the land, showed that an interest passed in the soil; that the limited powers which were reserved to the lessor pending the term of passing through the mines for the purpose of working other mines adjacent; and still more the right of re-entry, in case of breach, which was specially set out in the deed, — all assume that while the term continued the grantee had an estate; and that this was supported by the language in many parts of the instrument, which spoke of the “land hereby granted,” the “ground and premises hereby granted,” the “land or ground hereby granted,” &e. The court was of opinion that the indenture amounted only to a license to dig and work; and Chief Justice Abbott, while he admitted that formal words of demise were not necessary to pass such an interest in the soil as was claimed, added that, whatever doubts the expressions referred to might cast, they were not sufficient to vary the construction of the granting words, which of themselves were not of doubtful import, and that they could not operate to extend the grant, by converting the things granted from chattels personal, when gotten into á chattel real previously to their being gotten. 2 Barn. & Aid. 740, 741. The case in Bingham, which the plaintiff’s counsel refer to as destroying the value of Doe v. Wood, was a case of mutual and well-guarded covenants, which not only authorized the licensees to raise ore, paying therefor a certain toll, but also bound them to do so with a prescribed degree of energy and effect under penalty of a forfeiture —a circumstance of much importance in determining the intent of the parties; besides which, they must have contemplated the grant of an assignable interest, for they had covenanted that the license might be assigned by deed.
II. But regarding Foree’s covenant as an operative grant, what is the right that the plaintiff could claim under it? He says that it is not a right of common, but a right that excludes the owner of the soil. .1 think he is wrong in this. I should rather call it a right of common, even though it excluded the owner of the soil; that is to say so far as the policy of the law permits him to be excluded. Common is a right or privilege, says Sir Matthew Hale (Abr. tit. “Common”), which one or more persons claim to take and use in the natural produce of another man’s land. It may therefore be exclusive, or rather sole; for the grant, or the prescription or custom, may be in favour of one man only. But it can never exclude the lord of the soil from his reasonable participation. In Procter v. Mallorie, 1 Rolle, Abr. 365, Coke, J., says — “Notwithstanding a grant of common sans nombre the lord may common with the grantee; and moreover the grantee must use the common with a reasonable number.” And the reporter adds — “This was agreed to by the lord chancellor.” And in two cases in the Year Books, which I cite from Rolle’s Abridgment (title A, “Common,” pi. 2, and title 1, “Common sans Nombre,” pi. 5), the same position is affirmed. The owner of the soil, it is there said, hath such an interest in the soil, that though he grant a right of common sans nom-bre, yet the grantee cannot use the common with so many cattle, that the owner cannot have common enough for his own cattle. And Coke adds (Co. Litt 122a), that “a custom or prescription totally to exclude the owner of the soil is unreasonable, and void as against law; because it was implied in the first grant that the owner of the soil should have common also.” One of the points agreed in the Case of Lord Mountjoy, was based upon this doctrine; where it is said, that notwithstanding the grant of the right to dig, &c., to the Lord Mountjoy, the grantor, his heirs and assigns, owners of the soil, might dig there also; “like to the case of common sans nom-bre.” And the same is relied upon as undoubted law by Lord Ellenborough, in Chetham v. Williamson, 4 East, 469. In truth the only exception to its application that I have found contended for in the books, is in the case of a free fishery, mooted in a case in 2 Salk. 637 (Smith v. Kemp), and discussed in Mr. Hargrave’s note on Co. Litt. 122.
III. But would such a hereditament as the plaintiff claims to have, be susceptible of apportionment? He claims that it is a right in gross; I have given my reason already for regarding it as a right in common. A right of common in gross sans nombre. Can such a right be apportioned?
The leading case upon this question, is that of Lord Mountjoy, stated in the argument of the counsel, and just now referred to by [93]*93me. This case throughout, bears on the question before us. It denies that the grantee of a right to mine, can either assign his right to a third person for a part of the tract, or so assign an undivided interest in his right for the whole tract, as to confer on the as-signee a several right to mine; and by the reason which it gives for a continuing right to mine, in the grantor, notwithstanding his grant to another, it shows that the case would not differ, whether the original mining grant were or were not in its terms exclusive, for it refers to the analogy of a common sans nombre, in which, as we have seen, the owner of the soil cannot be excluded, but may complain that he is surcharged, even against his own grantee, of common unlimited. In other words, the case decides that a right in gross to mine, whether in terms exclusive or not, is essentially integral, and not susceptible of apportionment. And this may be the meaning of Treby, C. J., where he says (Weekley v. Wildman, 1 Ld. Raym. 407), “Although a common sans nombre may be granted at this day, yet such grantee cannot grant it over.” And a similar explanation may perhaps reconcile the opinion expressed in Shep. Touch, p. 238, to the same effect with the remark of Treby, and the case in the Year Book, 18 Edw. IV. 84, which the annotators cite as in opposition to their text. The incorporeal hereditament may well be assignable, and yet not apportionable. The assignment may have legal effect, but if it be to more than one, the assignees take together an indivisible entirety. Such I apprehend to be clearly the law laid down in Lord Mount-joy’s Case, and I have no reason to suppose that the law of England is different at this day. To the same effect is Layman v. Abeel, in New York (16 Johns. 30), the points decided in which are well condensed in the syllabus.
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(May 13, 1851.)
KANE, District Judge.
Is there anything in the deed which asserts, that Eoree intended to do more than enter into the ordinary covenant that, so long as there was iron ore on the 282 acres, Bennet and his assigns might work it if they chose, on paying a certain price per ton? I find the legal and apt phraseology in which a lawyer might embody such a covenant, and nothing more. The indenture in the case of Doe v. Wood, ■quoted at the bar, seems to me to resemble the grant of an exclusive incorporeal hereditament, much more than the covenant before us. It was contended in that case, that It should be regarded as a lease, and there was much in the words that gave countenance to such an interpretation. Thus it was argued, that the “full and free liberty to dig all metals and minerals, throughout the demised lands,” was tantamount to a sole grant of all the minerals, since two individuals could not both have full liberty so to dig; that the exclusive right which was engaged for to the adits or shafts, amounted to an exclusive right to the ore, for the ore could not be got out except by the adits; that the right to erect sheds, to make water-courses, and use all the water on the land, showed that an interest passed in the soil; that the limited powers which were reserved to the lessor pending the term of passing through the mines for the purpose of working other mines adjacent; and still more the right of re-entry, in case of breach, which was specially set out in the deed, — all assume that while the term continued the grantee had an estate; and that this was supported by the language in many parts of the instrument, which spoke of the “land hereby granted,” the “ground and premises hereby granted,” the “land or ground hereby granted,” &e. The court was of opinion that the indenture amounted only to a license to dig and work; and Chief Justice Abbott, while he admitted that formal words of demise were not necessary to pass such an interest in the soil as was claimed, added that, whatever doubts the expressions referred to might cast, they were not sufficient to vary the construction of the granting words, which of themselves were not of doubtful import, and that they could not operate to extend the grant, by converting the things granted from chattels personal, when gotten into á chattel real previously to their being gotten. 2 Barn. & Aid. 740, 741. The case in Bingham, which the plaintiff’s counsel refer to as destroying the value of Doe v. Wood, was a case of mutual and well-guarded covenants, which not only authorized the licensees to raise ore, paying therefor a certain toll, but also bound them to do so with a prescribed degree of energy and effect under penalty of a forfeiture —a circumstance of much importance in determining the intent of the parties; besides which, they must have contemplated the grant of an assignable interest, for they had covenanted that the license might be assigned by deed.
II. But regarding Foree’s covenant as an operative grant, what is the right that the plaintiff could claim under it? He says that it is not a right of common, but a right that excludes the owner of the soil. .1 think he is wrong in this. I should rather call it a right of common, even though it excluded the owner of the soil; that is to say so far as the policy of the law permits him to be excluded. Common is a right or privilege, says Sir Matthew Hale (Abr. tit. “Common”), which one or more persons claim to take and use in the natural produce of another man’s land. It may therefore be exclusive, or rather sole; for the grant, or the prescription or custom, may be in favour of one man only. But it can never exclude the lord of the soil from his reasonable participation. In Procter v. Mallorie, 1 Rolle, Abr. 365, Coke, J., says — “Notwithstanding a grant of common sans nombre the lord may common with the grantee; and moreover the grantee must use the common with a reasonable number.” And the reporter adds — “This was agreed to by the lord chancellor.” And in two cases in the Year Books, which I cite from Rolle’s Abridgment (title A, “Common,” pi. 2, and title 1, “Common sans Nombre,” pi. 5), the same position is affirmed. The owner of the soil, it is there said, hath such an interest in the soil, that though he grant a right of common sans nom-bre, yet the grantee cannot use the common with so many cattle, that the owner cannot have common enough for his own cattle. And Coke adds (Co. Litt 122a), that “a custom or prescription totally to exclude the owner of the soil is unreasonable, and void as against law; because it was implied in the first grant that the owner of the soil should have common also.” One of the points agreed in the Case of Lord Mountjoy, was based upon this doctrine; where it is said, that notwithstanding the grant of the right to dig, &c., to the Lord Mountjoy, the grantor, his heirs and assigns, owners of the soil, might dig there also; “like to the case of common sans nom-bre.” And the same is relied upon as undoubted law by Lord Ellenborough, in Chetham v. Williamson, 4 East, 469. In truth the only exception to its application that I have found contended for in the books, is in the case of a free fishery, mooted in a case in 2 Salk. 637 (Smith v. Kemp), and discussed in Mr. Hargrave’s note on Co. Litt. 122.
III. But would such a hereditament as the plaintiff claims to have, be susceptible of apportionment? He claims that it is a right in gross; I have given my reason already for regarding it as a right in common. A right of common in gross sans nombre. Can such a right be apportioned?
The leading case upon this question, is that of Lord Mountjoy, stated in the argument of the counsel, and just now referred to by [93]*93me. This case throughout, bears on the question before us. It denies that the grantee of a right to mine, can either assign his right to a third person for a part of the tract, or so assign an undivided interest in his right for the whole tract, as to confer on the as-signee a several right to mine; and by the reason which it gives for a continuing right to mine, in the grantor, notwithstanding his grant to another, it shows that the case would not differ, whether the original mining grant were or were not in its terms exclusive, for it refers to the analogy of a common sans nombre, in which, as we have seen, the owner of the soil cannot be excluded, but may complain that he is surcharged, even against his own grantee, of common unlimited. In other words, the case decides that a right in gross to mine, whether in terms exclusive or not, is essentially integral, and not susceptible of apportionment. And this may be the meaning of Treby, C. J., where he says (Weekley v. Wildman, 1 Ld. Raym. 407), “Although a common sans nombre may be granted at this day, yet such grantee cannot grant it over.” And a similar explanation may perhaps reconcile the opinion expressed in Shep. Touch, p. 238, to the same effect with the remark of Treby, and the case in the Year Book, 18 Edw. IV. 84, which the annotators cite as in opposition to their text. The incorporeal hereditament may well be assignable, and yet not apportionable. The assignment may have legal effect, but if it be to more than one, the assignees take together an indivisible entirety. Such I apprehend to be clearly the law laid down in Lord Mount-joy’s Case, and I have no reason to suppose that the law of England is different at this day. To the same effect is Layman v. Abeel, in New York (16 Johns. 30), the points decided in which are well condensed in the syllabus. “The grantee in fee of a right of common in gross and without number, may alien it, and it descends to his heirs, but it cannot be aliened in such a way as to give the entire right to several persons, to be enjoyed by each separately; and where it descends to several persons, as tenants, in common, or parceners, it seems that it cannot be divided between them, but that there must be a joint enjoyment of it; nor can one of the tenants alone convey a right in the common, but they may jointly alien their rights.” The same principle is carried out in Van Rensselaer v. Radcliff, 10 Wend. 639, where Chief Justice Savage decides that “common of estovers, if divided by the act of the party, is extinguished; if by descent cast must be exercised by the heirs jointly.” The extinguishment of the right by an assignment of it in part is, I suppose, deduced from this consideration, that the right being essentially an entire one, and the whole neither passing to the assignee nor continuing in the assignor, it remains no longer in any one. And all this is in harmony with the ancient law of qualified and incorporeal hereditaments. Thus a condition may not be apportioned; but is determined by license as to part Dumpor’s Case, 4 Rep. [Coke] 119b; 1 Smith, Lead. Cas. 83. And a right of way in gross doth not pass to several by assignment; and though a rent charge may be apportioned, as by an apportionment of the soil, in respect to which it is reserved, or so far at least, that parceners may take it (Co. Litt. 164a, 165b), or a rent service, for it is to the advantage of the lord (Doe v. Meyler, 2 Maule & S. 276), as parceners may also take a corody certain, or an advowson, or a right of mill certain; yet this is only where the division of the inheritance would not prejudice another, for in the case of estovers or corody uncertain, or piscary or turbary sans nombre, there can be no apportionment; and the reason why parceners take in such case at all, seems to be, that they make but one heir in law, and therefore they must join in actions real, and if disseised, in one assize. Co. Litt 164a. As they must also join, (and so must tenants in common, qua parceners under our American statutes of descent,) when damages are to be recovered for a tort done to their lands. Daniels v. Daniels, 7 Mass. 137. I take, then, the law to be, that if an incorporeal hereditament passed by the words of Foree’s covenant to Bennet, it was one not susceptible of apportionment; that it passed by his death to his heirs jointly, and can only be enjoyed by them jointly, and as one tenant; that the assignees of the heirs stand in no better plight than the heirs themselves, and can have no separate enjoyment of the mining right, and that neither heirs nor assigns, nor both, can claim to exclude the heirs and assigns of Foree, owners of the soil, from a right to dig ore in common with them,
3. There remains the third inquiry, Can this suit be maintained, on proof of an apportioned interest, the defendant not having pleaded an abatement? The plaintiff claims not as a tenant in common with others, but as the exclusive owner of a several right; and he cannot now turn round, and asserting a tenancy in common instead, exclude the de-fence from showing that he does not legally represent the interests which on this amended view of his title should have united in the institution of the suit. The right which he asserted was an exclusive one in himself, according to some of the counts, and one that excluded the defendant according to the others. And in one form or the other, it was the basis of his suit. The case fails unless his proofs support this exclusiveness of claim.
GRIER, Circuit Justice.
Assuming, for the argument, the plaintiff.to be the assignee of the whole right which was vested in Bennet, and that it is a grant upon sufficient consideration, let us inquire, what is granted? Not the iron ore. This the plaintiff properly admits in his declaration, where he defines his interest under the deed, as a “right and privilege to dig, take, and carry away iron ore to [94]*94be found" in the land of defendant. If it had been a grant of an absolute property in all the iron ore in the tract, the deed ■would have been insufficient to confer title without livery of seisin, and the statute of limitations a bar to the claim. A right or privilege to dig and carry ore from the land of another; is an incorporeal hereditament, — a right to be exercised on the land of another. It is a license irrevocable, when granted on sufficient consideration. It may be demised for years or granted in fee: it is assignable. The grantee or assignee of suchalicense, right or privilege to be exercised in the land of another, has no such title to the ore that he can support trover against the owner of the land for ore or coal raised by him. Chetham v. Williamson, 4 East, 476. On this subject I may adopt the words of Lord Tenterden in one of the cases relating to mines, quoted at the bar (Doe v. Wood, 2 Barn. & Ald. 724, 738): “This indenture in its granting part does not purport to demise the land or the metals or the minerals therein comprised. The usual technical words of demising such matters are well known and usually adopted in a formal deed when the intent is to demise the land or metals or minerals. But the purport of the granting part of this indenture is to grant for the term therein mentioned, (here in fee,) a liberty, license, power, and authority to dig, work, mine and search for metals, minerals, in and throughout the lands described, and to dispose of the ore, &c. that should be found within the term, to the use of the grantee, &c. Instead, therefore, of parting with or granting all the ore that was then existing on the land, its words import a grant of such parts thereof as should, upon the license or power given to search and get, be found within the described limits; which is nothing more than a grant of a license to search and get, (irrevocable, indeed, on account of its carrying an interest) with a grant of such of the ore only as should be found and got, the grantor parting with no estate or interest in the rest.”
2. Is the right granted, one that is exclusive of the owner of the soil? Much stress has been laid upon the word “all” in this arrant, as having the effect of making it exclusive. But so important a restriction cannot be deduced from so equivocal an expression. The deed has been drawn by a very able con-veyancer. He seems to have had Lord Mountjoy’s Case in his mind at the time. He employs none of the apt and well known terms or phraseology to indicate an intention of giving an exclusive right as against the grantor himself. The grant of a right to dig. take and carry away “all” iron ore to be found within the bounds, &c. shows the extent of the license, but not its exclusiveness. The grantee may dig, take, &c. of any or all the ore he can find on the land, but he has no exclusive right in any of it till he finds it and digs it. It is a right without stint as to quantity, and Lord Mountjoy’s Case likens it to the grant of a right of common sans nombre which does not exclude the owner. This is a point decided in Lord Mountjoy's Case as reported by Coke, Leonard and God-bolt.
3.. Did the evidences given by the plaintiff support the allegation that he urns possessed of the exclusive right to dig, &c., assuming that the deed in question conferred an exclusive right on Bennet to dig, take, and carry away the iron ore on this tract of land? The right, license or libertjr granted to Bennet is in its nature one and indivisible. Unless the plaintiff is clothed with the whole he has nothing. As for other things indivisible, it may be held by one or more as joint tenants. But they hold per my et per tout, (not as Blackstone has erroneously interpreted it, “by the half or moiety and by all,”) but “by nothing and by all” (7 Man. & S. 452, in note), or, in the language of Bracton, “Quili-bit totum habet et nihil habet, scilicet totum in communi et nihil separatim per se.” As a right to be exercised in the land of another it is an indivisible unit. Whether the plaintiff has l-99th or 94-99ths makes no difference. If he has not the whole he has nothing. It is a question of title and not of pleading. The Case of Lord Mountjoy is conclusive on this point also. New trial refused.
On a subsequent day the following opinion totius curiae signed by both judges, was pronounced by
(Sept. 8, 1851.)
GRIER. Circuit Justice.
As the opinions heretofore delivered by the respective members of this court on the questions argued on the motion for a new trial may possibly be construed as arriving at the same result by a different course of reasoning; and may be considered as deciding the present motion only, without any definite opinion of the whole court, as to the nature or construction of the covenant in the deed of 1769, we state the following propositions as ruled by the whole court, in which we agree; without repeating the authorities or all the reasons which might be urged in support of them; and for which we refer to our several opinions as delivered.
1st. For the purposes of the present decision we assume that the covenant in question contains a grant in fee to Bennet and his heirs for a sufficient consideration to be paid.
2nd. We decide, that the thing granted is not the iron ore contained in the land of defendant: but an incorporeal hereditament, a right or license or liberty, well described in the plaintiff’s declaration as “a right and privilege to dig, take and carry away” all or any iron ore to be found in the land of defendant. It is a license irrevocable, which may be demised for a term of years, or assigned in fee.
3rd. That until the grantee or his assigns exercised this privilege by digging, taking, [95]*95&c., iron ore found in the land, they had no property in the ore that would support an action of trover for the same.
4th. That the effect of the word “all” in this grant is not to give an exclusive right as against the grantor. It describes the extent to which the license may be exercised, not Its exclusiveness. It is a grant of a right to take ore without stint, and is aptly compared to a right of common in gross sans nombre, which does not exclude the lord or owner of the land out of which it is granted.
5th. That such a right is indivisible, and unless the plaintiff as assignee is clothed with the whole, he has nothing, and cannot support this suit as against the owner of the land.
Oth. And lastly: That the Case of lord Mountjoy as reported by several authoritative reporters, and among them, by Lord Coke in his Commentary, is directly in point on both parts of the case, and rules it. Its authority has never been questioned; and the application of its doctrines to this case results in a conclusion which accords with our reason, and our sense of justice.