visional order under their seal, shall set forth the terms and conditions on which they shall be of opinion that the enclosure should be made, and especially the quantity and situation of the allotments (if [*674 any) which under the provisions of this Act should be appropriated for the purposes of exercise and recreation and for the labouring poor, and, in case the lord of the manor shall be entitled to the soil of the land proposed to be enclosed, shall specify the share or proportion of the residue of the land which, after provision made for the payment of expenses, in case the expenses shall under the provisions hereinafter (s. 124) contained be so directed to be paid by sale of land, and after deducting the allotments to be made for public purposes. should be allotted to the lord of the manor in respect of his right and interest in the soil, either exclusively or inclusively of his right or interest in all or any of the mines, minerals, stone, and other substrata under such land, or inclusively or exclusively of any right of pasturage which may have been usually enjoyed by such lord or his tenants, or any other right or interest of such lord in the land to be enclosed, as the case may appear to the Commissioners to require, or as the parties interested, with the approbation of the Commissioners, may have agreed, and in case there shall be any mineral property, or any rights in relation thereto, not vested in the lord of the manor, or other rights which shall appear to the Commissioners proper to be specially provided for upon such enclosure, or to be excepted from the operation thereof, shall specify the provisions or exceptions which should be made in that behalf; and the Commissioners shall thereupon cause notice to be given of their intention to authorize the proposed enclosure, or (as the case may be) to certify in their annual general report the expediency of the proposed enclosure, but upon the terms and conditions in such order expressed, and in case the consents required by this Act should be given within the time in such notice *specified, or within any enlarged time which the Commissioners [*675 may allow for that purpose; and the Commissioners shall cause to be deposited for inspection a copy of such provisional order in the parish or place in which the land proposed to be enclosed, or some part thereof, shall be situate, and may, in case they shall think fit, cause meetings to be holden by an Assistant Commissioner for the purpose of taking consents and dissents, or of ascertaining the interests of consenting or dissenting parties, or give such direction as to the mode of taking and verifying consents as they shall think fit; and, in case it shall appear to the satisfaction of the Commissioners that persons the aggregate amount of whose interests in the land proposed to be enclosed shall not be less in value than two-thirds of the whole interest in such land, and the other persons, if any, whose consents may be necessary under the provisions hereinafter contained, shall have consented to such enclosure upon the terms and conditions in such order expressed, then, if the land proposed to be enclosed cannot be enclosed under this Act without the previous direction of Parliament, the Commissioners shall in their next annual general report certify their opinion that the proposed enclosure would be expedient, with such particulars in relation thereto, or to the terms and conditions aforesaid, as they shall think necessary," &c. The 98th section pro

vides, that, "in every case in every case in which the right to all or any of the mines, minerals, stone, and other substrata under any land enclosed under this Act shall exist as property distinct and separate from the property in the surface, and shall not be compensated upon the enclosure, the right and property in such mines, minerals, stone, or other substrata, and all rights and easements auxiliary to or connected with the exercise or enjoyment of the right and property in such mines, minerals, stone, or *other substrata, shall be in

*676] nowise affected by the enclosure; and, in case any mines, minerals, stone, or other substrata under any land enclosed under this Act, or the right of searching for or getting the same, shall have been leased or agreed to be leased to any person as property distinct and separate from the property in the surface, with or without powers over the surface of the land auxiliary to the purposes of such lease, the rights of the lessee or tenant under such lease or agreement shall be in nowise affected by the enclosure." The 29th section gives a veto to the lord of the manor: it enacts, that, "when the land to which such application shall relate shall be waste of any manor, or land within any manor to the soil of which the lord of such manor shall be entitled in right of his manor, then, unless there shall be more than one person interested in such manor according to the definition of this Act, the Commissioners shall not proceed to an enclosure on such application, or certify in their annual general report the expediency thereof, unless the person interested in the land subject to be enclosed as aforesaid in right of such manor, or his substitute under this Act, shall consent to such enclosure; and where there shall be more than one person interested in such manor, the Commissioners shall not proceed to an enclosure, or certify as aforesaid the cxpediency thereof, in case such persons, or the majority of such persons in respect of interest, shall signify their dissent within the time limited by the Commissioners." But Church is not lord of the manor. well might Mr. Grubb have claimed a veto in his case: see Grubb v. The Enclosure Commissioners, 9 C. B. N. S. 612 (E. C. L. R. vol. 99). [ERLE, C. J.-Your contention is, that, if the Commissioners think proper to decline to take a claim into consideration, their decision is final, and we cannot interfere?] Precisely so: the party who thinks himself aggrieved *must go to Parliament. *677] The Assistant Commissioner has obtained the consent of two-thirds in value of the interests in the land proposed to be enclosed; and he was not bound to take into consideration Church's supposed interest in the substrata. The enclosure professes to deal only with the surface of the land. Church's interest, if he has any, in the minerals, is reserved to him by the exception, and the Commissioners propose to allot him one-fifteenth of the surface. Further, it is submitted that Church has no interest in the minerals. His ancestor purchased the land under the powers of the Land-Tax Redemption Act, 39 G. 3, c. 21. By the 12th section(a) of that Act, the mines and minerals are vested in the

As

(a) Which enacts that "no mines, or minerals, or seams or veins of coal, metals, or other profits of the like nature, belonging to any manors, messuages, lands, tenements, or hereditaments, which shall be sold by any bishop or other ecclesiastical corporation aforesaid, for the purpose of redeeming any land-tax, whether the same shall be opened or unopened, nor any right, title, or claim to open or work the same, &c., shall pass by any conveyance of such manors,

Ecclesiastical Commissioners, whose consent the Enclosure Commissioners have obtained; and the provisional order will be amended in this respect under the 9 & 10 Vict. c. 70, s. 1. The case of Smith v. Smith, 2 Price 101, has no bearing upon the present case: the only question there was, whether the person claiming was the person described in the Enclosure Act, lord or a person claiming *to [*678 be lord of the manor. [ERLE, C. J.--It is demonstrable here that Church is not lord of the manor.]

Manisty, Q. C., and Kemplay, in support of the rule.-The Commissioners are clearly assuming to deal with a valuable right of Mr. Church. He is the owner of the soil, including the brick-earth: this they purpose to take from him, leaving him the barren right to work. it, paying compensation for surface damage. This is a perfect mockery. [ERLE, C. J.-The lord may approve: but I do not know that a purchaser has the same right.] The only question here is, whether the Commissioners have proceeded upon the right principle in ascertain ing whether or not the proper proportion of assents have been given to the proposed enclosure. It is submitted that they have no power to except from the operation of the enclosure anything but what exists at the time as a separate property; that the exception of that which they have a right to except does not exclude the party from the right of voting on the question of enclosure; and that there is in fact no exception in this provisional order. The application here was for the enclosure of Old Oak Common. It cannot be disputed, that, under s. 16, the owner of the substrata is a person "interested in land subject to be enclosed under the Act," and a person who under s. 25 might have applied for the enclosure, and to whom the valuer might assign an allotment. The application is for an enclosure of the common in solido: and the provisional order is, "that three acres at or near the spot marked A. on the plan hereto annexed be allotted to the labouring poor; and that all mines, minerals, stone, and other substrata be reserved to Church, with a right to enter the said lands, when enclosed, for the purpose of opening, working, or winning such mines, minerals, stone, or other substrata, making *compensation for [*679 any damage to the surface which may thereby be done." [WILLIAMS, J.--That is applicable to something to be done beneath the land, leaving the surface available for the ordinary purposes, not to brick-earth, which cannot be taken without destroying the surface.] Minerals," in the 12th section of the 39 G. 3, c. 21, as well as in the 98th section of the 8 & 9 Vict. c. 118, means coal, iron-stone, and the like, and not that which lies immediately under the surface of the land.

ERLE, C. J.-I am of opinion that this rule for a prohibition should be made absolute. It appears to me that Mr. Church clearly is interested in the land proposed to be enclosed in respect of the brick-earth, and in respect of which interest his assent to the enclosure has not been obtained. It is certainly part of the land proposed to be en

messuages, lands, tenements, or hereditaments, either by express or general words in such conveyance; and such mines or minerals, scams or veins of coal, metals, or other profits aforesaid, &c, shall be always absolutely excepted and reserved to such bishop or other ecclesiastical corporations aforesaid, as fully and effectually to all intents and purposes as if the same were in such conveyance expressly excepted and reserved."

closed. It was contended, on showing cause against the rule, that the brick-earth has been taken out of the operation of the provisional order by reason of the exception or reservation at the end thereof,"that all mines, minerals, stone, and other substrata be reserved to Henry John King Church, with a right to enter the said lands, when enclosed, for the purpose of opening, working, or winning such mines, minerals, stone, or other substrata, making compensation for any damage to the surface which may thereby be done." I am of opinion, that, if brick-earth were clearly included within the words "mines," minerals, stone, and other substrata," the reservation does not amount to an exception within the 12th section of the statute. Assuming that it did, it would not, I think, follow that the party entitled would not have a right to a voice with reference to the enclosure. I do not, however, go into that on this occasion, inasmuch as it is unnecessary

to say anything as to the course the *Commissioners, who must

*680] have abundance of experience, are accustomed to pursue in the matter. If the opposition rested upon this brick-earth being an exception out of the enclosure, it is clear to my mind that it must fail. Mr. Church has no separate property in the mines, minerals, and substrata. They are reserved to him, and he has a deep interest in what appears to be a very valuable subject; and yet he is excluded from an opportunity of expressing his dissent from the enclosure. I agree with Mr. White, that the words "mines, minerals, stone, and other substrata," would be misapplied if they were supposed to include brick-earth. In many parts of the country, there may be an exclusive enjoyment of mineral property without very materially interfering with the enjoyment of the land by the owner of the surface. Brick-earth, however, does not come within that category: it cannot be got and worked with advantage without entirely (for the time, at least) destroying the surface. The Commissioners, therefore, clearly were not warranted in treating Mr. Church as an owner of mineral property. He clearly was within the general purview of the statute interested in the land proposed to be enclosed, in respect of the brickearth, which ought to have been included in the valuation; and therefore I am of opinion that the Assistant Commissioner had no right to exclude him from counting in respect of that property amongst the persons assenting to or dissenting from the proposed enclosure.

WILLIAMS, J.-I am entirely of the same opinion. It is not disputed that Mr. Church is the proprietor of valuable property in Old Oak Common, in respect of his right to get brick-earth, if, in so doing, he does not interfere with the rights of those who are entitled to com

mon of pasture there. If, therefore, the enclosure *proceeds, the *681] effect will be to deprive Mr. Church of a very valuable right, without giving him any compensation for it. If it is dealt with simply upon the footing of his being the proprietor of waste land over which there are existing rights of common, the effect will be, that, when the allotment comes to be made, he will only have an allotment propor tionate to the value of that limited right. The brick-earth would only be reserved to him by virtue of the exception, as it is called, in the provisional order, of "mines, minerals, stone, and other substrata," with a right to enter the lands when enclosed, for the purpose of opening, working, or winning such mines, minerals, stone, and other

substrata, "making compensation for any damage to the surface which may thereby be done." That, so far as Mr. Church's interest in the brick-earth is concerned, would be altogether illusory. If this were a case in which the right of the party consisted simply of a right to the minerals in the ordinary sense, that is, minerals which could be worked in the ordinary way under ground, leaving the surface or crust unaffected, there would be nothing illusory in the exception. Mr. Church would then have the minerals, and those to whom the surface was allotted, would, as is reasonable and just, have compensation for any injury they might sustain from his so doing. But, where the thing to be taken consists of the surface itself, if Mr. Church is to make compensation to the allottees, it will be neither more nor less than making him pay for the brick-earth itself. It is quite impossible to allow this manifest perversion of the meaning of the Act.

WILLES, J.-I am quite of the same opinion. It is more than likely, that, when this matter was discussed before the Assistant Commissioner, he had not the *advantage of such a full knowledge [*682 of the facts as we have acquired from the able arguments which have been addressed to us. It is now perfectly clear, that, in dealing with what he supposed to be under-ground rights, the Assistant, Commissioner was in reality dealing with the superficies. It is impossible not to see the justice of Mr. Church's claim after the investigation the case has undergone. The enclosure cannot be pursued any further.

KEATING, J.-I am of the same opinion. It seems to me that up to the point of the refusal to admit Mr. Church as a party assenting to or dissenting from the proposed enclosure, the proceedings of the Commissioners may have been perfectly regular. The application to the Commissioners is, to enclose the whole of Old Oak Common. They accordingly proceed to deal with the whole, and, as part, with the very property in question, and to make special provisions in respect of it, under ss. 25, 26, 27. It would be manifestly contrary to the spirit and intention of the Act that one with whose property the Commissioners are thus dealing should be excluded from having a voice in the matter. The case could not have been brought before the Assistant Commissioner in the way in which it has been presented The whole circumstances, however, being looked at, it is clear that Mr. Church is entitled to vote in respect of the value of the right in question, and that the Commissioners ought to be prohibited from proceeding further with the proposed enclosure.

to us.

Rule absolute.(a)

(a) Bovill asked that Mr. Church might be directed to declare in prohibition, so as to give the Commissioners an opportunity of questioning whether prohibition would lie in such a case. But the Court thought the case too clear, and refused the application.

C. B. N. S., VOL. XI.-26