Noneihamy V. Silva
Present: De Sampayo J. and Schneider A.J.

NONEIHAMY v. SILVA et al.

318-D. C. Galle, 15,427.
Usufructuary-Right to dig for minerals.

A usufructuary may dig for and extract minerals from the land, bat lie is only entitled to the interest on the proceeds thereof.
IN this case the first plaintiff-appellant as absolute owner of l/32nd share and of another half, which is subject to a life interest in favour of the second respondent, of the land called Mulanegodabedda, alleged that the first respondent, who owned no share of the said land, had since September, 1913, acted in collusion with the second re­spondent, and had obtained and appropriated 700 tons of plumbago. The first plaintiff-appellant claimed a sum of Rs. 1,875 from the re­spondents, being the value of her share of the plumbago calculated at the rate of Rs. 100 per ton, and after giving credit to the respondents for Rs. 10,000 for working expenses. The first plaintiff-appellant further prayed that the respondents be ordered to bring into Court the value of half share of the second respondent, viz., the Rs. 30,000, or to give adequate security for the same.
The respondents denied that so much as 700 tons were obtained, and pleaded that in any event the first respondent was not bound to bring the value of the half share, viz., Rs. 30,000, into Court, or to give security for the same.
By judgment dated July 29, 1918, the appellant's action was dismissed as against the first respondent, and the appellant was declared entitled to receive a sum of Rs. 19.09 only from the second respondent, and the second respondent was further ordered to bring into Court a sum of Rs. 305.40 only, which the Court assessed was the value of her half share.
The District Judge (L. W. C. Schrader, Esq.) delivered the following judgment: -
In this case the minor plaintiff is entitled to a l/32nd part of the land Mulanegodabedda and to a half, subject to the life interest of second defendant, her grandmother Gimarah. In this land Louis (first defen­dant) has been mining for plumbago since September, 1913, on the strength of an agreement entered into with Gimarah, witnessed and consented to by the minor's next friend, and with the full cognizance and assent of her mother, another co-owner. The arrangement was one in which second defendant was held out as the sole owner of the- land, and gave first defendant permission to mine for a return of one-tenth share of the yield to the owner. This he has done, and has rendered ................................ a list of receipts from the grantor showing that he has paid her in the aggregate of money and plumbago a total of Rs. 610.81 as the one-tenth share.
The next friend and his wife instituted partition proceedings when plumbago digging was prosperous, and obtained an injunction three months before the expiry of the agreement, and the minor's next friend now sues the license grantor and licensee for-

(1) The payment of l/82nd share of the proceeds, which he calculates at Rs.1,875.
(2) An order on defendants to tender security for the minor's half share of the proceeds of the mining, or Rs. 30,000.
(3) In the alternative, an order to bring into Court the whole proceeds, Rs. 60,000, to be kept for plaintiff, subject to second defendant's usufruct.
2. The issues as to quantities arise; also whether the claim can be for shares of the output or of the ground share; whether the defendants acted, in collusion to deprive the minor; whether the life interest which second defendant enjoys entitled her to the use of the minerals absolutely, or whether she is bound to secure them or their value to the minor and enjoy only the interest upon them; and lastly, whether the action is maintainable against the first defendant for security in respect of
second defendant's obligations.
3. The case is complicated by reason of the fact that the minor's natural guardians, her mother Angohamy and the next friend-her second husband-acquiesced in and openly sanctioned this mining agreement
But it is conceded that this operates as no estoppel to the minor.
4. The rule governing the usufructuary's right over minerals and stones on the property is stated by Voet, lib. VII., tit, 1, 24, in the passage " magis est . . . . . . . fructuarius solo talium rutorum æsorumque pretio utatur, quomdiu vivit, aut exeo fænori collocate usuras percipiat, finito usufructu pretium deductis impensis proprietario redditurus. " This is clear enough, and the amount agreed upon as the ground share, which was presumably considered reasonable by the plaintiff, and is usual, must be regarded as the " pretium deductis impensis". For it is certain that the mineral could not have been extracted by the defendant or in her name on any other terms. Neither she nor the minor were capable of working the mine on any other terms and gain a larger share of the profit. And the usufructuary has a perfect right to exploit the property in this way. She is, therefore, bound to secure to the minor the half share of the principal sum or price.
5. In regard to quantities extracted, I hold the plaintiff's estimates to be absolutely unfounded and unreliable. The four or five tons a day deposed to was a pure exaggeration of the first defendant for his own purposes when an injunction was claimed, and the rapid output was strictly limited in time to the short period of Tune and early July. I agree that the receipts are a very proper and good clue to the amount really taken out, and hold that it cannot nave been more than the sixty or seventy tons during the whole period of the lease.
6. I have already found on the evidence that there was no collusion between defendants, to which the plaintiff's mother and stepfather were not parties; that there was no intention of depriving the minor of her rights, ass the grandmother had every intention of leaving, and the party expected her money to devolve on the minor. A quarrel has, however, since occurred 'over
the disposal of the plaintiff 's hand in marriage, to that the family harmony has been disturbed, with the usual result, that the daughter and son-in-law an vigorously preventing their mother-in-law from their rights.

7. With regard to the petition of the first defendant, I am of opinion that the action it not maintainable. As I have found, Voet makes it clear that the usufructuary it entitled to open mines and put the property to this use, to long at he only uses the interest of the money. The first defendant is only the instrument who opened the mines in her name. As miner he is entitled to the reward of his labour. It is the usufruc­tuary alone against whom the action lies. The licensee was in no sense wrong-doer, nor his act tortious. I think the passages from Nathan cited reveal the fact that the action lies only against the usufructuary; certainly it cannot lie against the instrument. The first defendant must be discharged. He entered into a permissible and legitimate agreement with the defendant, although not capable of being enforced at law by reason of its want of notarial execution. But it was acted upon, and such action wag lawful and within the compass of the contracting parties' rights. As licensee he is not responsible for the obligations of the other party or parties to the contract. I answer the last issue in the negative,
8. The action is dismissed, with costs, as against first defendant, payable by next friend personally. The second defendant is decreed to pay (a) Rs. 19.09 as the minor's l/82nd share, and (6) to bring into Court the half share of the price received, to wit, Rs. 806.40, for plaintiff, subject to her own (second defendant's) life interest.
The plaintiff succeeds only on one issue (the seventh), and is not entitled to costs. The whole case was due to a quarrel, in which the minor (plaintiff) has no concern. These parties will, therefore, bear their own costs.
Samarawickreme, for plaintiff, appellant.
A. St. V. Jayawardene, for defendant, respondent.
March 14, 1919.