tended on behalf of the defendants that the plaintiff was not entitled to have the compensation assessed on the above principles; and further, that he was not entitled to compensation as to some parts of the land in respect of which he claimed compensation. The opinion of the Court was asked by the umpire upon the following questions: 1. Whether the compensation for damage or spoil of ground was to be inclusive of ground occupied by pits which were open and existing at the time of the execution of the deed of conveyance of the 10th of September, 1859? 2. If exclusive of ground occupied by such pits, whether such ground was to be inclusive or exclusive of grounds used or occupied at the time of the execution of the said deed with and for the necessary purposes of such pits? 3. Whether the compensation for damage or spoil of ground was to be inclusive or exclusive of ground which at the time of the execution of the deed was used or occupied for having access to, or getting or carrying away, or converting, manufacturing, or otherwise disposing of the excepted minerals and premises, or any other minerals or substances, or for agents' or workmen's houses, or for pit or heap room, furnaces, or engine houses, or other like conveniences. 4. Whether the compensation for damage or spoil of ground was to be inclusive or exclusive of ground which at any time after the execution of the said deed might be used or occupied for the purposes mentioned in the preceding questions, or any of them. 5. Whether the compensation for damage or spoil of ground (to whatever it was applicable) was to be estimated with reference to the value of the ground, if usable only for the purposes for which it was used at the time of the execution of the said deed, or with reference to its value, if usable for building or any other purposes to which it was applicable, or with reference to its value as subject to any restrictions necessarily imposed upon its use by the provisions of the said deed, or on what other principle. 6. Whether the plaintiff was restricted by the provisions of the said deed from using the land for any purposes which would substantially add to the surface weight to be supported from below. 1873 MORDUE v. DEAN AND CHAPTER OF DURHAM. 7. Whether the plaintiff was restricted by the provisions of the said deed from using the land for any purpose for which it could not be used without interfering with the minerals or other substances excepted and reserved by the said deed, or with the powers thereby excepted and reserved for working or getting the said minerals or substances. 8. Whether the restrictions referred to in the two last preceding questions, or either of them, or any other restriction necessarily imposed upon the use of the land by the provisions of the said deed, ought to be taken into consideration in estimating the damage or spoil of ground, and how, and upon what principle. Herschell, Q.C. (Wood Hill with him), for the plaintiff. The compensation for damage or spoil of land caused by the exercise of the powers reserved must be assessed with reference to the value of the land for any purpose to which it may be applicable. The defendants contend that the effect of the clause in the conveyance which forbids any interference by the grantee with the exercise of the reserved powers is to restrict the plaintiff from putting the land to any use inconsistent with its use for mining purposes. The argument clearly goes too far. This would prevent the plaintiff from erecting any building, however temporary its character, upon the land; or from using it for any purpose but agriculture, for which purpose, considering the nature of its surroundings, it might probably have no value. Upon this principle there would be no compensation at all due, for the land would be of no value to the grantee. The meaning is, that when they think fit the defendants may use the land for mining purposes, and the plaintiff is not to interfere with or prevent such use of it; but the defendants must make compensation according to the ordinary marketable value of the land. A question will be raised as to whether compensation is to be made in respect of pits open at the time of the conveyance. With respect to the old unused pit, it must be admitted that as to the mere existence of that, while it continues unused no compensation is due. With respect to damage caused by the subsequent working of pits open at the date of the conveyance, or by the subsequent user 1873 MORDUE บ. DEAN AND DURHAM. of lands then already occupied for mining purposes, compensation is clearly due. [He cited Duke of Buccleuch v. Wakefield. (1)] Kemplay, Q.C. (Haselfoot with him), for the defendants. It is contended that there is no compensation to be made in respect of CHAPTER OF damage arising from the use of pits open at the date of the conveyance, and from the accessories necessary to the working of them. The plaintiff took the land subject to the right to use them. With respect to the basis upon which compensation is to be assessed, it is submitted that, looking to the provisions of the deed, it was obviously never intended that the grantee should be entitled to alter the condition and character of the land in a manner inconsistent with mining operations; as, for example, to burthen the surface of the land with buildings, so that mining would be impossible without letting them down. The powers reserved are so extensive, and the restrictions so widely expressed, that it was clearly intended that the surface should remain substantially unaltered. The value of the land must, therefore, be estimated with reference to the restrictions put upon its user, and not as though it were applicable to any purpose. [He cited Bell v. Wilson (2); Rowbotham v. Wilson (3); Hext v. Gill (4); Caledonian Railway Company v. Sprott (5); Shafto v. Johnson (6); Smith v. Darby (7); Eadon v. Jeffcock (8); Smith v. Thackerah. (9)] Herschell, Q.C., in reply. The only restriction imposed on the grantee is, that he is not in any way to touch or interfere with the minerals, and so far as any purpose is concerned for which the land could not be used without doing so, that must be considered in estimating the compensation; but the restriction cannot have the sweeping construction contended for. The grantors can only restrict or prevent the plaintiff's use of the land for any purpose to which it is applicable without actual interference with the minerals upon payment of compensation. BOVILL, C.J. There may be some difficulty with respect to the (1) Law Rep. 4 H. L. 377. (2) 2 Dr. & Sm. 395; Law Rep. 1 Ch. 303; 34 L. J. (Ch.) 572. 49. (3) 8 H. L. C. 348; 30 L. J. (Q.B.) (4) Law Rep. 7 Ch. 699. (6) 8 B. & S. 252, n. (9) Law Rep. 1 C. P. 564. 1873 MORDUE v. DEAN AND particular expressions used in some of the clauses of the conveyance upon the construction of which the present case must depend, but the general effect of the language seems to be that the property in CHAPTER OF the soil is to pass to the plaintiff with the exception of the minerals, which are to remain in the defendants, the Dean and Chapter of Durham. DURHAM. It is a conveyance of the soil and buildings thereon to the plaintiff in the condition in which they then existed, and it appears to me that the plaintiff thereby acquired all the ordinary rights of an owner of freehold property, subject to such rights as were expressly reserved or re-granted to the dean and chapter. The reservation is in substance one of all minerals with complete powers of getting and working them, and of erecting buildings, machinery, and such other works as might be necessary for those purposes, and these powers relate not only to pits thereafter to be opened, but to pits already open. The plaintiff, by an express provision of the deed, is absolutely excluded from using or exercising any of the rights vested in the dean and chapter with respect to the enjoyment of the minerals. There is also a general clause which prevents the plaintiff from interfering with the exercise of the powers reserved to the dean and chapter, and if this clause were to be construed according to the widest interpretation of the words employed, as contended for on behalf of the defendants, there is hardly an act which could be done by the plaintiff in the exercise of the ordinary rights of an owner with respect to the land which might not in one sense be a hindering or interrupting of the exercise of the powers reserved. But I am of opinion that this clause must receive a reasonable interpretation, taking into consideration the general objects of the conveyance; and that it must be taken to refer to any actual interference with the powers reserved at the time when it may be sought to exercise them, and not to be intended to prevent the ordinary use of the land by the plaintiff as owner of the freehold. The exercise of the rights reserved to the dean and chapter is made subject to a provision for compensation to the plaintiff for damage or spoil of ground which may be occasioned by the exercise of all or any of the powers reserved, to be ascertained from time to time, as occasion may arise, by arbitration. On the whole 1873 MORDUE DEAN AND DURHAM. it appears to me that under the provisions of this deed the plaintiff, as purchaser of the reversion, had a right to use the land in any way which he might think fit, provided he did not touch or interfere with the minerals: to build on it, or put it to any other CHAPTER OF purpose for which it might be suitable; that the powers given to the defendants do not in any way amount to restrictions on the ordinary rights of the plaintiff as owner, and that, therefore, the compensation is to be assessed on the principle that there are no such restrictions. A question was raised with respect to an old pit shaft existing at the date of the conveyance, and with respect to that I am of opinion that no compensation could be claimed for its mere continuance in existence, but that if it were used afresh and damage resulted therefrom, or if new buildings were erected, tramways laid down, or workmen's cottages built in connection therewith, to all these new workings the compensation clause would apply. With respect to the basis upon which the compensation is to be assessed, I am of opinion that it must be assessed according to the marketable annual value of the land with reference to the purposes to which these lands might reasonably be applicable. And I think that the plaintiff is entitled to compensation not only in respect of the land actually taken or used in the exercise of the reserved powers, but also of the damage occasioned to parts of the land not taken by severance or otherwise. To apply the principles already laid down to the various questions put to us: with respect to the first and second questions, I am of opinion that the plaintiff is not entitled to compensation in respect of the mere existence of the old pits or damage already occasioned thereby at the date of the deed, but for future damage which may be occasioned thereby he is entitled. I am also of opinion that he would be entitled to compensation in respect of any land that has been or that may hereafter be used as accessorial to the working of such pits, not having been so used at the time of the execution of the deed. In answer to the third question, I am of opinion that the plaintiff is entitled to compensation in the case of lands which had been already used or occupied for the purposes enumerated prior to the execution of the deed, in respect of the damage occasioned by the use of such lands, if any, for such purposes subsequent to the |