in respect of the deficiency, but not if the quantity be only a little less than that described. (a) In general the term acres means according to statute measure, and which is now prescribed by 5 Geo. 4, c. 74, s. 1 & 2, and a contract to sell by other measure would be illegal. (y) There are, however, two descriptions of admeasurement; the one, the landlord's or selling measure, including the hedges, fences and ditches, and growing bushes and underwood in the divisions between closes; and the other the tenant's, or "agricultural measure," including only the ploughing or mowing acres, a distinction sometimes essential to be remembered. In case of the sale of copyhold, as 219 acres more or less, it suffices for the vendor to show that the tenants have long been in the actual possession of land about that quantity, although from the description on the Court Rolls that quantity is not distinctly made out, it being notorious that it is most difficult to make ancient descriptions accord with the modern. (2) CHAP. IV. I. RIGHTS TO REAL PROPERTY. ries to land. As respects criminal injuries to mere land, they are forcible Criminal injuentries and forcible detainers, (a) or wilful and malicious petty injuries, punishable summarily before one justice, under the 7 & 8 Geo. 4, c. 30, s. 24; but the latter act only extends to cases of actual injury, and not merely to persons trespassing by walking over grass, and not occasioning any actual damage; (b) and by express proviso the enactment is not to extend to trespasses under a fair and reasonable supposition that a party had a right to do the act, or to a trespass not wilful and malicious, in hunting, fishing, or in pursuit of game.(c) But the recent Game Act subjects trespassers in pursuit of game, and who are not entitled to the same, to a summary conviction and penalty of 21. (d) and authorizes the owner of the land to take away from the party trespassing, all the game in his possession, and inflicts a penalty for refusing to give it up.(d) crop Prima Tonsura, &c. aftermath, beast gates and 18. Prima Tonsura is a grant of a right to have the first 18. Herbage, of grass; and aftermath is a right to the last crop or pasturage; so there may be a right to the herbage or to the pasture for one hundred sheep; and all these are considered exclusive and corporeal rights, and are recoverable in eject (1) See 17 Ves. 394; 6 Ves. 328; 1 Esp. Ca. 229; Sug. Vend. 372, 375, 5th ed., and 8th ed. p. 294 to 303, where see the cases collected. (y) Cro. Eliz. 267; 4 T. R. 314; 10 Bar. & C. 446; and see Sugd. V. & P. 302, 303; 1 Thomas's Co. Lit. 217, 219; and see 6 Geo. 4, c. 12, s. 23. (z) 4 Russ. R. 267. (a) Post. (b) 2 Car. & P. 585; 1 Mood. & Mal. 56; 1 D. & R. 223. (c) 7 & 8 Geo. 4, c. 30. (d) 1 & 2 W. 4, c. 32. cattle gates. CHAP. IV. Fold courses, sheepwalks, wayleaves, and exclusive rights of pastures or commons. (1) 19. Woods and underwoods. ment, or damages to them in trespass; (e) but the ejectment should be brought specifically for the first grass, or for the aftermath, and not for the land generally; (f) one person may hold the prima tonsura of land as copyhold, and another may have the soil and every other beneficial enjoyment of it as freehold.(g) So in Suffolk, ejectment lies for a beast gate, and in Yorkshire for cattle gates, (h) for both these are considered corporeal interests, and quite distinguishable from mere rights of common of pasture, the owners of them being tenants in common, and having a joint possession, but several inheritances, and are as much demisable as any other tenements, and cattle gates are conveyed by lease and release, and if devised, the will must be duly attested by three witnesses, according to the statute against frauds,(i) and the owner of them may acquire a settlement by the occupation of them. (i) All these are considered to be corporeal interests in the land, and subject the owner of them to the poor rate in respect thereof. (k) "Fold courses, sheepwalks, wayleaves, and other exclusive rights of pasture," are rights nearly of the same description as the last. These sometimes exist quite distinct from mere rights of common or rights of way, and so much so as to constitute corporeal real property, being exclusive rights, and for an injury to which trespass is sustainable, and which property is rateable to the poor; whereas a mere right of common or of way, being incorporeal property, cannot be the subject of an action of trespass, nor is the same rateable. (m) A waggon way, when with exclusive occupation of the ground, is of this description, and entitles the owner to an action of trespass, and he is liable to be rated to the poor. (n) But a mere right of common of pasture, or a mere right of way, is only incorporeal, and is not subject to the poor rates, and the owner's remedy for an injury is only by action on the case; (o) and so is right to panage, which is only of the mast which falls from the trees, and not part of the soil itself. (p) 19. Woods and underwoods. The precise nature of these is frequently essential to be known. Under the statute 43 Eliz. THEIR INJURIES, AND REMEDIES IN PARTICULAR. J. RIGHTS c. 2, only “saleable underwoods" are rateable to the poor; (9) CHAP. IV. and under the tithe law numerous questions arise. A sale of trees or underwood, to be cut down, would now be held to be a sale of goods and chattels, and not of an interest in land. (r) By the grant of all woods, will pass all the highwood and underwood, and not only the wood growing upon the land or soil, but the land or soil itself whereon it grows; but if a man grant to another all his saleable underwoods within his manor, which have been usually sold, with free entry, egress and regress for selling, making, and carrying away the same, then the soil does not pass, but the wood only: (s) though it is said, that without the words, "with free entry, &c." the soil would have passed. (t) Woods and underwoods will pass in a fine or recovery, by the description of so many acres of wood, and so many acres of underwood, &c. And an exception of all timber trees and wood (not in the plural) does not except the soil on which the trees and wood grow. (u) shrubs. 20. Trees and underwoods we have seen, although growing, 20. Trees and are, after they have been agreed to be sold, and sold, considered as quasi personal property; (x) but generally speaking, when growing, they are part of the realty, though necessarily less durable than the land itself. If trees be excepted in a lease, the land on which they grow, or at least that immediately adjoining the stem and roots, is impliedly also excepted, and consequently, if the tenant cut down the trees, the landlord may maintain trespass for breaking his close, as well as for cutting down his trees. (y) But where by a lease of a tenement described as containing nineteen acres, save and except all timber trees, wood, (not woods in the plural,) underwood, &c., it was held that six acres of the soil, which at the time of the lease were covered with growing wood were not excepted, but passed to the lessee. (u) When trees are excepted, it frequently becomes a question, what trees were intended; (≈) an exception of trees in a lease does not include apple trees. (a) Trees become the frequent source of dispute between neighbours, upon questions to whom they or their produce belong, and when they may be cut if overhanging the land of another, (9) 10 East, 219; 1 B. & Cres. 375; Burn's J. tit. Poor, 80 to 83; 1 B. & Cres. 375; 10 East, 219. (r) 9 B. & C. 56; ante, 93. (s) Shep. T. 94. (t) Id. 95, sed quære. (u) 1 Bar. & Adol. 622. (1) Ante, 86, 93; Off. Exec. 49, 60; Toller, 6 ed. 194, 195. (y) Rolls v. Roch, 2 Selwyn's N. P. 1287; but see 1 Bar. & Adol. 625; and see further as to trees, Saund. Rep. Index, tit. Trees. (z) 16 East, S16. (a) 4 Taunt 316; and see 5 Bar. & Cres. 842; 8 D. & R. 657; and see Id. 651. CHAP. IV. TO REAL 22. Mines. (f) which points will be considered in the seventh chapter, relating to the abatement of nuisances. (b) As regards criminal injuries in the nature of larceny or malicious injuries to trees and every description of growing wood, they are provided for by the two consolidating statutes against offences of that nature. (c) The offences in the nature of larceny are stealing trees and vegetable productions from gardens, orchards, &c. if of 17. value; or elsewhere, if of 51. value, punishable by indictment as simple larceny. And stealing trees, &c. growing any where, if of one shilling value, is punishable summarily before justices, with 57. penalty; and a second offence with imprisonment for a year, and whipping; and a third offence as simple larceny; but if the tree be not of one shilling value, the stealing it is not at all punishable criminally. (d) As regards malicious injuries, if the trees or shrubs destroyed were in a garden or orchard, &c., and of the value of 17., the offence is a felony, punishable with transportation for seven years, or two years' imprisonment; (e) and if the trees or shrubs were elsewhere, and of the value of 57., the injury is punishable in like manner; but if the trees, wherever growing, were of the value of one shilling, then the malicious injury is punishable as in the case of larceny of trees of such small value. 22. Mines are recognized at common law and under various statutes. These, unless expressly excepted, would be included in the conveyance of land, without being expressly named; and, therefore, though where mines have been previously used or opened, it is usual to describe them in a deed as a mine, yet, (excepting in a lease merely of the MINE, and not of the surface) no such description seems essential; (g) and so vice versû by the grant of a mine the land itself, the surface above the mine, if livery be made, will pass. (h) All mines (except of gold and silver, which belong to the crown by royal prerogative) (i) are the property of the owner in fee of the surface; (k) and if, therefore, a tenant for life open a new mine, he will be guilty of waste; but he may dig and take the profits of mines that are (b) Post; and see 1 Mood. & M. 112. (d) 7 & 8 Geo. 4, c. 29, s. 38, 39. (f) See as to mines in general, 1 Thomas's Co. Lit. 218; 3 Id. 237; Lears v. Branthwaite, 2 B. & Adolp. 437. (g) Co. Lit. 4; 2 Bla. C. 18; 7 East, 368; 2 Bar. & Ald. 570; 2 B. & Adolp. 437. (h) Co. Lit. 6; Shep. T. 26; 1 Thomas's Co. Lit. 218. (i) Plowd. 336. 1. RIGHTS TO REAL PROPERTY. open. (1) And he may open new pits or shafts for working the CHAP. IV. old vein, for otherwise the working of the same mine might be impracticable. (m) It is said that a recovery cannot be suffered of a mine alone, without the surface, because it is not in demesne, but in profit only. (n) Mines are not titheable of common right, though by custom they may be, because they are a part of the substance of the earth, and an annual produce. (o) Ejectment lies for a coal mine, or for any other mine; (p) and in pleading it may be stated, "that the defendant entered a certain coal mine, or vein of coal, and dug, &c." or it may be alleged that the defendant broke the plaintiff's close, and there dug, made, and sunk divers, to wit, —— pits, shafts, and —— holes, and there raised, dug, and got divers, &c. Trespass, and not case, will lie for encroaching on a lead mine, though the plaintiff has no property in the soil above the mine, but an exclusive right of digging.(q) But if it should turn out that the grant or lease of mines was so worded, as not to operate as an actual demise, but only as a license to dig, then the grantee or lessee could not, before he had actually opened the mines, nor could he after he had abandoned the same, recover in ejectment or trespass, though it is said that he might whilst he was in actual possession of working mines already opened. (r) There are in Derbyshire, Cornwall, and Mendip in Somersetshire, peculiar customs, authorizing any person to enter the land of another to search for and take away minerals, (the sites of houses, &c. gardens, orchards, and highways, excepted; (s) and a close planted with shrubs was holden a garden, within the exception.) (t) Where the ownership of a mine is distinct from that of the surface the exercise of the former is usually regulated by express deed, or by act of parliament, or by usage, so as to prevent the working the former becoming injurious to the latter. (u) If there be no such provision, then the mine must be so worked as not to injure the surface or the adjoining property, and if it be, trespass or case lies for any consequent injury, according to the place and mode of committing it. (u) As the statute 43 Eliz. c. 2, only mentions a particular description of mines, viz. "coal mines," no other mine, however annually productive, is rate |