Present: De Sampayo J. and Loos A.J.    1919

SILINDAHAMY et al. v. PERIS et al.

333 and 334-D. C. Ratnapura, 2,840.

Right   of   co-owner    to   dig   for   plumbago-Right    to     minerals    reserved   in Crown    grant-Action    by    miner    against    co-owner    and    lessee    for .   recovery  of possession and damages-Jus tertii.

The Crown sold in 1892 a piece of land reserving mining rights. Out of several shares, the plaintiffs became entitled to a share, and the fifth defendant to another. On a mining lease from several co-owners, the plaintiffs opened a pit for plumbago, and after the expiration of the lease continued to work it with the tacit consent of   all   the   co-owners.

The sixth defendant, who took a lease from the fifth defendant, dispossessed the plaintiffs and worked the pit. The plaintiffs sued for recovery of possession and damages.

Held, that, though the Crown had reserved mining rights, the plaintiffs   were   entitled   to   maintain   the   action.

The possessor of a thing may maintain, an action against the wrong-doer,  though not against  the  true  owner.

The plaintiffs were entitled to the plumbago, though they , may have to account for it to the Crown.

Where a co-owner carries on mining operations on the common land, he is entitled to appropriate to himself the whole output, less the ground share of the other co-owners.

Silva v.  Fernando 1 [1 (1912) 15 N. L.R. 499.] distinguished.

THE facts appear from the judgment.

Samarawickreme (with him E. G. P. Jayatilleke), for sixth defendant,   appellant.

Drieberg (with him F. M. de Saram), for fifth defendant, appellant.

Bawa, K.C. (with him A. St. V. Jayawardene and Wijemanne), for plaintiffs,  respondents.

Cur.  adv.  vult.

April 11, 1919.   De Sampayo J.-

These are two appeals taken by the fifth defendant and sixth defendant, respectively, in an action arising out of a dispute to a plumbago mine on a land called kiriwelahena. The main appeal is that of the sixth defendant, who has raised certain important questions of law. The land originally belonged to the Crown, and was sold on a Crown grant dated June 6, 1892, which reserved to the Crown all right and title to the mines and minerals on the land,

together with power of entry for discovering or working such mines, or for procuring and carrying away any minerals in or upon the land. By devolution of title from the Crown grantees the details of which need not be mentioned the first and second plaintiffs, who are husband and wife, are now entitled to one-fifteenth share of the land, and fifth defendant to one-fifth share, and the first, second, third, and fourth defendants to the remainder of the land. The land contains plumbago, and for many years several pits have been worked thereon either by the co-owners or by lessees under them. The present disputes relates to a pit called Galpatala, the history of which may be stated as follows. On February 5, 1898, the co-owners gave a mining lease for eight years to the first plaintiff, who opened a pit and worked it till January 24, 1903, when he assigned his interest to the third plaintiff. The original lease expired in 1906, but the third plaintiff, with the tacit consent of the co-owners, continued to work the pit under the first plaintiff, whose wife, the second plaintiff, had in the meantime become entitled to one-sixtieth share of the land by purchase. The third plaintiff having worked the pit for some time gave certain interests therein successively to two persons named D. A. Fernando and Weerakoon. These persons gave up the pit, and the third plaintiff resumed work again and continued to mine for plumbago with the first plaintiff, who himself acquired title to another three sixtieth share of the land in 1908  The pit was a very expensive one, and its name indicates that rocks had to be blasted and other difficult operations performed. By this time i