DEFINITION OF SURFACE DAMAGE. 99 



solo, liave no application to the present question. A copyholdei- may, 

 by custom, not only have a possessory but a proprietory right in the 

 trees and minerals in his copyhold tenement. In the case of minerals, 

 the taking them is, in effect, a taking of a portion of the corjjus of the 

 copyhold tenement. There appears to be no doubt but that a copy- 

 holder of inheritance may not only, by custom, work old mines already 

 opened, but that he may also by custom dig within his tenements for 

 new ones, and, if successful, work them. The case of the Bishop of 

 Winchester v. Knight (2 Ld. Eaymond, 1056 ; and 1 P. Williams, 40G), 

 [see Laiv of the Farm, p. 307] is an authority for the proposition that 

 by custom a copyholder of inheritance may open and work new mines. 

 GiWert C.B., in his treatise on tenures, p. 827, says that a copyholder 

 of inheritance cannot without a custom dig for mines ; obviously mean- 

 ing that with a custom he could. In Scriven on Cojnjholds, p. 420, it is 

 said that by custom a copyholder of inheritance may be entitled to the 

 trees and mines in his copyhold. The plaintiff's counsel in his argu- 

 ment did not doubt but that a custom for a copyholder to have and 

 work quarries and mines might be good, but contended that the sur- 

 face must be left. But no case was cited to warrant such a con- 

 clusion. It may l)e that the mine or minerals, or a quarry of stone, 

 might occuiDy the whole surface of the particular copyhold tenement, 

 and that a general right to take stone or minerals would necessarily 

 involve the taking of the surface. But in the present case there is 

 nothing to show that the taking the clay would necessarily involve the 

 taking of the surface. All the clay might be so situate as to be capable 

 of being got at, as coals or other minerals. But however that may be, 

 we think there is nothing to show that such a custom as that in ques- 

 tion is unreasonable or bad in point of law ; and we may further ob- 

 serve that it is said, in Scriven on Copyholds, p. 26, that a custom is 

 not unreasonable because it is prejudicial to or diminishes the lord's 

 casualty profit as to escheat. For these reasons, we think the defend- 

 ant is entitled to our judgment " (JIarquis of SalisJ)ury v. Gladstone). 

 DefiniUon of surface damage. — The words "surface damage" in the 

 Forest of Dean Act (1 & 2 Yict. c. 43, s. 68) do not include damage 

 to buildings on the land, by reason of the subsidence occasioned by 

 underground workings. This " surface damage " is damage to the 

 mere surface, injury to the crops, or destruction of the grass, com- 

 pensation for which can be ascertained by computation, and deter- 

 mined upon by the gaveller. To cause a subsidence of the soil, par- 

 tially or wholly destroying the future fertihty of it, is not a surrace 

 damage ; it may be damage to the hoase and land, but it is not sur- 

 face damage {Allaway v. Wagslaff). 



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