Henderson and Geidt, JJ.
1. In 1854 Lakhan Acharjee Goswami granted a putni lease, dated the 30th Falgun, of mauza Alutia consisting of upwards of 500 bighas along with three other mauzas, to the defendant Krishna Kanji, through whom the Malia defendants, the appellants, claim. According to the kabuliyat (for the patta is not forthcoming) the coal and mineral rights and the surface of such of the lands in the mauzas as are coal-bearing were excepted from the grant. The translation in the paper book of the clause in the kabuliyat containing the exception is not quite accurate, but the translation by one of the sworn Interpreters of this Court, which is admitted to be correct, is as follows:
Within the said lot such places where there are or shall be in existence coals, coal-pits, minerals, in land or water are reserved under your khas control. The same shall have no concern with me, the lessee.
2. Up to that time there had been no working for coal in the mauzaand the existence of coal in the mauza had not been established.
3. On the 26th Pans 1290 and 23rd Srabon 1300, respectively, the successors in title of Lakhan Acharjee Goswami executed mokurrari maurmi leases in respect of the coal and mineral rights of the entire mauza Alutia to the plaintiff, Ram Nath Bhutta, charjee, and one Jadu Nath Roy, but the plaintiff subsequently obtained from the legal representatives of Jadu Nath Roy a dufmokuran lease in respect of his interest. In December 1895 the plaintiff granted a perpetual lease of the minimum right in the entire mauza to the defendants Madhab Prosad, who thereupon commenced to dig a pit in the land for the purpose of prospecting for coal, but he was stopped by the Malia defendants, who were in possession of the surface by virtue of the putni of the 13th Falgun 1261. Thereupon Madhab Prosad, being unable to get quiet possession, filed a suit in the High Court to have the perpetual lease cancelled and to recover the premium of Rs. 5 000 which he had paid to his lessor. Pending the hearing of that suit the plaintiff and Madhab Prosad on the 19th December 1899 filed a joint petition, in which it was agreed between them that the hearing of the suit should be postponed for a year to enable the plaintiff to bring the present suit to establish his title to the underground rights in the mauza and to put his lessee, the defendant Madhab Prosad, in such possession as would enable him to work the minerals. It was agreed that, if the intended suit should fail, the plaintiff was to repay the Rs. 5,000; but if it should be successful and the defendant Madhab Prosad should obtain possession under his lease, the suit in the High Court was to be withdrawn,
4. The present suit was instituted on the 30th April 1900 The plaintiff prayed that under the terms of the putni patta and iabuhyat of the 13th Falgun 1261 his right might be established to carry on coal business in the coal lands of mama Alutia-that is to raise coal and carry on business for the sale of coal to do all business accessory for carrying on coal business and for the residence of all people, who shall conduct that business, etc.: and to use the surface land of the said mauza as may be necessary and to dig the fame and to make borings on any part of the mauza and to sink wells, steps and dig tanks and to have access to and from the said mauza,' and he also asked for a permanent injunction against the Malia defendants restraining them from offering any obstruction to the doing of the acts mentioned.
5. It was not alleged in the plaint that there was any coal in the mauza, and in their written statement the Malia defendants, who alone defended the suit, stated that they did not admit the existence of coal at any place in the mauza and they submitted that, as the plaintiff had not alleged that there was coal, the suit was not maintainable. One of the issues raised was whether the mauza contained coal or other minerals. Before the hearing of the suit the plaintiff applied that a Commissioner might be appointed to make borings or that he himself might be directed to make borings in order that it might be ascertained whether there was in fact coal in the mama. As to this the Subordinate Judge made no order, merely recording that the question would be considered after the evidence had been recorded, and there the matter dropped, no further reference having, as far as appears, been made to the subject in the Court below. No evidence to show that there was coal in the mauza was given by the plaintiff. All that was proved in this connection was that an attempt had been made to ascertain whether there was coal in the mauza, but it had been frustrated by the action of the Malia defendants.
6. The Subordinate Judge held that the plaintiff was entitled to get possession of the surface lands of the mauza to the extent absolutely necessary for the purpose of finding and working the coal, and that the Malia defendants were entitled to compensation for any injury to their surface rights by acts of the plaintiff in excess of his just right.
7. On this appeal it is, in the first place, contended before us on behalf of the defendants that the plaintiff having granted a perpetual lease to the defendant, Madhab Prosad, was not entitled to bring this suit. Having regard to the fact that it was owing to the opposition of the defendants themselves that Madhab Prosad had been unable to obtain possession, and complete his title, and that Madhab Prosad had been compelled to sue his lessor to set aside the lease, it cannot we think be said that Madhab Prosad's title was complete. The objection is a purely technical one, and it fair to say that it was not in the end pressed. But as Madhab Prosad is a party to the suit we think the objection is really groundless.
8. For the defendants it was also contended that there being no a legation in the plaint that there was coal in the--, the plaint disclosed no cause of action, as the plaintiff's right to go on the surface was, it was argued, dependent upon there being coal or other minerals in the mauza. It was further contended that there Having been no admission by the defendants and no proof furnished at the trial that there was coal in the mauza the Court for the same reason had no alternative, dealt with when we have objections will be more conveniently dealt with when we have considered the question of the construction and effect of the clause in the kabutiyat of the 13th Falgun 1261 dealing with the exception or reservation by Lakhan Acharjee Goswami of the mineral rights.
9. The mohurrari maurasi patta of 23rd Srabon 1300, one of the patta under which the plaintiff claims, recited the earlier Patta of the 13th Falgun 1261, by which Lakhan Acharjee Goswami had rented the surface lands of the mauza with Krishna Kanji The actual terms of the recital (according to the translation which we had made by one of the sworn Interpretors of the Court, the translation at page 8 of the paper book being admitted on both side to be inaccurate) are as follows:
Previous to this my predecessor the late Lakhan Acharjee Goswami settle the surface lands of the mauza with krishna Chandra Kanji under a patta on the 13th Falgun 1261 after excluding the underground coal, minerals, ores, as also the water and land on the surface and other land etc. for raising the same. The lessor then purported to grant in mokurrari all his right, title and interest in the surface suitable for raising the underground coal in the mauza and declared that the lessees should 'hold * * * the coal and other minerals, etc. * * * and any kind of land surface tank, waste land or cultivated property on the surface as you may require' and should 'dig pits and erect the necessary structures, lines, etc., for pits thereon.' It is said that the other patta of the 26th Pous 1290 contained the same or similar provisions.
10. In order to determine the nature and extent of the exception or reservation made by Lakhan Acharjee Goswami in 1854, when he granted the patta of the 13th Falgun 1261 we have to, refer to the kabuliyat of that date granted by Krishna Chandra Kanji as the patta, which ought to have been with the Malia defendants, has not been produced. It is admitted that the nature and the terms of the exception may be gathered from the clause of the kabuliyat, a translation of which is set forth above. In our opinion that clause shows clearly that the lessor excepted from his grant or reserved to himself the right to coal and other minerals below the surface, wherever they might be within the mauza, and that the Malia defendants are bound by this reservation. This right with all the incidents attaching thereto was transferred by the successor of Lakhan Acharjee Goswami to the plaintiff and Jadu Nath Roy, and the interest of Tadu Nath Roy has since become vested in the plaintiff by the durmokurrari executed in his favour by Jadu Nath Roy's representatives. It appears that the effect of the same clause in the kabuliyat of the 13th Falgun 1261 was considered by a Bench of this Court in the case of Rameswar Malia v. Whyte Unreported. Appeal from Original Decree, No. 41 of 1902, dated 9th July 1902, in connection with mauza Saltose, one of the other three mauzas covered by the kabuliyat, and the same construction was placed upon it. In another case, Gandoo Mahata v. Nilmonee Singh Deo (1894) 1 C.L.J. 526, a clause in a kabuliyat almost in the same terms was considered by another Bench of this Court and it was similarly construed.
11. It seems clear from the decisions in England that when the surface land is granted and the minerals are excepted or when minerals are granted and the surface land is excepted, such powers as are necessary to get the minerals are granted and reserved as the case may be as a necessary incident of the grant. See Dand v. Kingscote (1840) 6 M. & W. 174. In Rowbotham v. Wilson (1860) 8 H.L.C. 348, 360 Lord Wensleydale said: 'The rights of the grantee to the minerals, by whomsoever granted, must depend upon the terms of the deeds by which they are conveyed or reserved, when the surface is conveyed. Prima facie it must be presumed that the minerals are to be enjoyed and therefore that a power to get them must also be granted or reserved as a necessary incident. It is one of the cases put by Sheppard (Touchstone, Chap. 5, 89) in illustration of the. maxim 'Quando aliquid coneeditur, concedihir etiam, et id sine quo res ipm non esse pot nit,' 'that by a grant of mines is granted the power to dig them.' In Cadogan v. Armitage (1828) 2 B.& C. 197, 211, it was said that the incidental power, that is the right of using the surface, to which a mine-owner may be entitled by implication would warrant nothing beyond what was strictly necessary for the convenient working of the coals: it would allow no use of the surface, no deposit upon it to a greater extent or for a longer duration than should be necessary, no attendance upon the land of unnecessary persons. It would, it was said, be questionable at least whether it would authorize a deposit upon the land for the purpose of sale and whether it would justify the introduction of purchasers to view the coals. See Marshall v. Borrowdah Plumbago Mines and Minerals Co. (1892) 8 T.L.R. 275, Where, however, a liberty to dig pits is expressly granted, the owner of the minerals has as incident to the liberty the right prima facie of erecting a steam-engine and other necessary machinery for draining the mines and drawing the coals from the pits. Hayles v. Pease (1899) 1 Ch. 567. In Ramsay v. Blair (1876) 1 App. Cas. 701, 704 Lord Hatherley, in dealing with the rights of a proprietor in respect of property excepted from a demise, pointed out that as respects the power of working, whether incidental to the reservation of, the property or expressly specified in the instrument, no right of property is attached to that--it was simply a right of availing yourself of that property, which you have reserved to yourself in the lands in question. Applying these principles to the present case, it. would seem that the original lesson of the surface land in excepting the coals and other minerals impliedly reserved to himself as a necessary incident the right to dig for and win the coal.
12. It will be convenient now to consider the contentions put forward on behalf of the defendants that the plaint discloses no cause of action, and that in the absence of proof that there is coal or other minerals in the mauza, this suit ought to have been dismissed. While it is admitted that the plaintiff would have a right to come upon the land for the purpose of working the existing coal it is said he has no right to come upon the land to make borings or to sink shafts in order to ascertain whether there is coal in the mauza. There is no evidence on the record to show that there is coal in the mauza, but it seems to us that in no case, unless coal is visible on the surface, can it be said with certainty that there is coal underneath the surface. No doubt in cases where there is no outcrop on the surface, the opinions of experts may be obtained, and it may be shown that in all probability coal or other minerals may be found under the surface in a given area, but the only way in which the fact that such exist can be demonstrated is by boring or by sinking shafts or making inclines or otherwise digging through the soil. In this connection we are referred to the case of Martin v. Cotter (1846) 9 Ir. Eq. R. 351, where lands were set up as held under a clear and indefeasible title in fee-simple and it appeared that they had been conveyed forty years before with a reservation to the tenants of another estate of the right to cut turf and | quarry limestone. The right had never, since the conveyance, been exercised, and there were no turf or quarries on the land, but it did not appear that there might not be turf and there was no proof that there was no limestone. The title was objected to, and the objection was held to be good on the ground that it could not be said that there was nothing like turbary in the estate and no experiment having been made for the purpose of ascertaining whether there was or was not limestone, it could not be said that there was none. The Lord Chancellor said that there being a reservation of it would lead one to suppose that there was limestone. It was to be presumed it was said that the subjects exist which the conveyance recited were granted to others. This case, in our opinion, affords but little assistance in dealing with the point raised before us. The question there was whether a purchaser was bound to accept the title, when there was a possibility of the tenants of another estate at some time insisting upon rights of cutting turf and quarrying for limestone on the estate and it was held that he was not bound to accept it. The mauza in the present case is situate in what is well known to be a colliery district, the mineral rights were reserved and the present owner of these rights now seeks to enforce them. The mineral rights were excepted or reserved at the time when the surface rights were granted to the defendant, and that by the very instrument to which the predecessors of the Malia defendants were parties. It may be taken, therefore, that when the lease of the surface was granted, it was in the contemplation of both parties that coal or other minerals might be found and that the lessor or his successors or assignees might at any future time proceed to take the ordinary steps to prospect for, and if it considered advisable, proceed to win such coal, if any, as might be found.
13. If a person who had reserved to himself or granted to another the mineral rights in an estate could be prevented by the owner of the surface from entering upon the land in order to bore or to dig for coal, until such time as he had proved the existence of coal or minerals under ground, his right would be practically negatived or incapable of being exercised at all. In our opinion the reservation of the mineral rights or the grant of such rights apart from the surface rights must be taken to carry as incident to it the power not only to go upon the land and work the minerals known to be underground, but to go on the laud and conduct the ordinary preliminary operations by boring or otherwise to ascertain (when it is not known), if there are minerals underground. In that view we are not prepared to accept the arguments addressed to us in support of these contentions of the defendants.
14. Before considering the form of the decree to be made in the present case it is necessary to notice another contention put forward on behalf of the plaintiff. It was argued that upon the true construction of the reservation of the mineral rights, Lakhan Acharjee Goswami reserved to himself the surface also of such portion of the mauza as might be coal-bearing, a construction which would, in the event of the entire mauza being coal bearing, give to the plaintiff the right to the entire surface without apparently any obligation on his part towards the lessees of the surface. Although this point was much pressed, we do not consider ourselves bound to discuss it for the plaintiff did not in his plaint claim that he was entitled to anything more than the use of the surface or so much of it as might be necessary for ingress and egress upon the mauza and for making borings, sinking shafts and for raising coal, etc., and the only issue raised with regard to this part of the case was whether the plaintiff was entitled to get possession of surface land in the mauza adequate for the purpose of working coal.
15. In the unreported case referred to above the decree declared that the plaintiffs in that case were entitled to exercise the subsoil right only in a reasonable manner and to interfere with the surface right of the defendants only so far as might be necessary and declared that the defendants were entitled to compensation for any injury arising by reason of the plaintiffs' acts in excess of their just rights. In Gandoo Mahata v. Nilmonee Singh Deo (1894) 1 C.L.J. 526, 531 the decree declared that the plaintiff there was entitled to ingress and egress upon the mehal for the purpose of reasonably working the coal and metals, which were reserved to him by the kabuliyat, doing no more damage to the surface than was absolutely necessary and protecting the defendant's right to support in the case of any excavations being made and compensating the defendants for any injury to the surface of the soil. In the present case the Subordinate Judge has in the main adopted the construction in these cases, By this decree, which follows to some extent the prayer in the plaint, it was ordered and decreed that the plaintiff's right be established to and he do get possession of such quantity of surface land in mauza Alutia as he may require for his use for carrying on coal business on the coal lands of mauza Alutia, that is for raising coal, carrying on the sale of coal, for the residence of the people, who are to be engaged in the said work, for using and digging the surface laud of the said mauza as may be necessary, for doing all necessary acts for the purpose of carrying on coal business and making borings at any place and for making wells, steps and tanks, excavations and for going (having access) to the said mama, that, if the plaintiff exceeding his just rights, cause any loss by his acts to the surface rights of the defendants Nos. 1 and 2 in the said mauza, the defendants Nos. 1 and 2 shall be entitled to receive compensation from the plaintiff, that a perpetual injunction be issued forbidding the defendants from obstructing the plaintiff in doing the acts mentioned above, and that the defendants Nos. 1 and 2 do pay to the plaintiff the costs in this suit.' With a slight modification we consider this decree to be such as the plaintiff is entitled to. The decree, however, must declare that the plaintiff is entitled to the coal and the minerals underneath the surface of the mauza, to ingress and egress upon the mauza for the purpose of making borings or sinking shafts and doing such other acts as may be reasonably necessary for the purpose of ascertaining whether there is coal or other minerals therein. And in lieu of the words 'that the plaintiff's right be established to and he do get possession of such quantity of surface land in mauza Alutia as he may require,' we would substitute the words 'that the plaintiff is entitled to the reasonable use of such portion or portions of the surface lands in mauza Alutia as he may require.'
16. It has been suggested that the decree should be made to declare as far as possible what the 'just rights of the plaintiff' are, but in our opinion this might lead to complication hereafter as it is really impossible to define or enumerate what his just rights are, for the plaintiff is practically, if not actually, entitled to exercise all the rights, which a proprietor of the minerals may reasonably exercise upon the surface for the purpose of conveniently and economically winning the minerals.
17. With the modifications indicated the decree of the Subordinate Judge will be affirmed and the appeal dismissed with costs.