1. At the request of counsel on both sides I now deliver my judgment on two preliminary points in this case viz., (1) is the covenant for renewal contained in the lease of October 1, 1794, a covenant for perpetual renewal or for a single renewal only; and (2) is the lessee under that lease, as confirmed by the indenture of May 10, 1870, entitled to remove and sell the soil and stones of the hilly ground comprised in that lease.
2. The first question, though probably not of much pecuniary importance, is of considerable speculative interest. The current of legal opinion seems to have changed towards the end of last century, and then to have set against construing such covenants so as to import a perpetual renewal. The history of the earlier cases on the point is fully given in Cruise's Digest, Vol. 4, page 393, et seq. Tie earliest case there referred to is Bridges v. Hitchcock 5 Brown's Parl. Cases (2nd ed.) p. 6 a strong authority in favour of the lessee, but one which has in effect been got rid of by later decisions; for it is difficult to feel satisfied that Lord Ellenborough's explanation of the case in Iggulden. May 7 East 245 is satisfactory. I may further refer specially to Moore v. Foley 6 Ves. 232 as a decision of sir W. Grant, and to Iggulden v. May 9 Ves. 325 and 7 East. 237 as a case decided by Lord Eldon in Chancery and Lord Ellenborough at Common Law, in which they both refused to hold a covenant for renewal to be perpetual, where the words were more in favour of that construction than in the present case.
3. In later years these cases have occurred far less frequently; probably in consequence of the disuse of renewable leases, and especially of those granted by ecclesiastical corporations. The two most recent cases appear to be Brown v. Tighe 2 Cl. & Fin. 396 and Hare v. Burgess 4 Kay & J. 45. The present state of the law is summed up in Davidson's Conveyancing (2nd ed.), Vol. V, Part I, page 127, note. Applying these authorities to the present case, I cannot doubt but that the covenant is for a single renewal only. It is to be 'on the terms and conditions above mentioned', and not 'on the same' or 'the like covenants, conditions, &c;'; words which, though stronger than those here used, are held not to be sufficient to render the covenant for renewal perpetual.
4. The second point is said to be one of great importance. I think that its importance has probably been exaggerated, as in the amended claim the alleged value of the soil of the hill has been simply added to the amount of the claim first sent in, although the two claims are in several points conflicting. It is obvious that the soil could not be bodily removed without destroying the, buildings and trees standing thereon; nor, I should suppose, without Considerable diminution of the market value of the land. Still there is no doubt that the market value of the property leased must be substantially affected by the lessor having or not having power to remove and sell the soil. It is not, as I understand, argued that the lease on the face of it imports this power; but it is contended that the words of the lease are ambiguous and have by the acts of the parties been interpreted as containing the power; and further, that the indenture of May 10, 1870, has conferred the power on or at least recognized it as subsisting in, the lessee. That a lessee for years has not, in the absence of express words, power to remove and sell the soil, except in the case of mines, quarries or pits open when he came in, is a commonplace of real property law. See Co. Lit. 53 (b). The authorities in favour of interpreting the lease by the acts of the parties are summed up in Broom's Legal Maxims (3rd ed.),608, under the title 'Contemporanea expositio est optima et fortissima in lege.' The rule is that ambiguous words may be properly construed by the aid of the acts of the parties. See Doe d. Pearson v. Ries 8 Bins. 178, 181 per Tindal, C.J., and Chapman v. Black 4 Bing. H.C. 187 per Parke, J. The widest effect given to the acts of parties as assisting the interpretation of written instruments is in the case of ancient grants and charters, especially in determining what passed thereunder, a matter naturally hard to discover from the instrument itself after the lapse of many years. The case of Waterpark v. Fennell 7 H.L.Ca. 684 seems to be the one which goes furthest in this direction, in which case the word village was held to include a mountain. On the Other hand, the rule is plain that the acts of parties cannot be allowed to affect the construction of written instruments if that construction be in itself unambiguous; the cases of Moore v. Foley 6 Ves. 232 and Iggulden v. May 9 YES. 325 and 7 East. 237 already cited on the first point reserved are also authorities on this point.
5. Are, then, the words of the lease of October 1, 1794, ambiguous in this behalf? The claimant relies on the expression '&c.; &c.;' occurring in the parcels, which no doubt is in itself meaningless. The expression, however, occurs in the course of the general words following the description of the parcels, and is governed by the succeeding words 'thereon standing and now in his occupation or possession'. It would, to my mind, be hardly consistent with the other words used and with the maxim 'noscitur a sociis' to construe '&c.; &c.;' as here including quarries or mines. But if the words quarries or mines were there, I do not think that they would carry the case further; for it seems clear law that they would give no right to work quarries or, mines other than those open when the tenant came in, which indeed he might have worked in the absence of such words, appropriate as they might be if open quarries or mines in fact existed. I think that to allow the opening of new quarries nor mines there must be a power or liberty in that behalf, and such a power or liberty is found in every quarrying or raining least) with which I am acquainted. Further, I doubt whether the acts of the parties in removing soil, which removal is not proved to have taken place earlier than 1863, could be called in aid of the interpretation of ambiguous words in a lease of 1794. There is no 'contemporanea expositio'.
6. The effect of the indenture of May 10, 1870, is a point of more difficulty. I do not think that the indenture can be considered as estopping the Secretary of State from disputing the claimant's right to remove the soil and stones. It might very possibly, especially when coupled with the Collector's letter of December 21, 1871, have estopped him from deputing the claimant's right to dispose of soil actually severed, at least without making good the costs of severance; or from asserting a right to the monies resulting from the sale of portions of soil under the encouragement afforded by the deed and letter. But I see no such alteration of the claimant's position as is required by Freeman v. Cooke 2 Ex. 654 and the subsequent cases, especially Wilmot v. Barber 15 Ch. Div. 96 to make it inequitable in the Secretary of State now to assert his claims in this behalf under the lease and to estop him from so doing.
7. Then, does the indenture of May 10, 1870, operate as a fresh demise of the premises leased in their condition at the date of the indenture; for at that date there certainly were quarries or pits open on the premises, and if the effect of the indenture is as above suggested the claimant is entitled to continue to work them. This is the point on which I have felt most doubt; but, on the whole, I think that the indenture does not so operate. If there had been a surrender and re-grant, the claimant's contention must have been successful, but in lieu thereof there is a confirmation of the original cease. Now, a confirmation, according to Co. Lit, 295 (6), operate 'to make avoidable estate sure and unavoidable, or to increase a particular estate'; but I can find no authority that it can operate so as to make the estate confirmed subject? to the incidents which it would have had if granted in its condition at the date of the confirmation. And probably the indenture of 1870 was intended to settle the questions pending between the lessor and lessee in respect of the past excavations made with the consent of the Secretary of State, and not to alter the original effect of the lease. The release therein contained by the lessor to the lessee seems to show that the lessee's right to make such excavations was considered doubtful; and it is plain that the lessor had no right to allow such excavations without the lessee's consent, so that he might well agree to the lessee's receiving a part, if not the whole, of the value of the soil removed.
8. On the whole I am of opinion that the present lessee under the lease of 1794 has no right to remove and sell the soil and, stones on the hill thereby demised, and that the market value of the property demised must be estimated on the footing, of his having no such right.
9. I may perhaps properly add that, according to ray present impression, the provision for payment by the lessor of one-half the value of buildings and improvements applies only to a determination of the lease on the expiration of the first period of 99 years, the rights of the lessee at the end of the second period being left to the ordinary law. The point has not yet been discussed, and I am, of course, open to hear argument upon it. It is probably of little pecuniary importance.