
    Lydia Billings versus Thomas Taylor.
    
      A husband died seised of a tract of land, of four acres in extent, consisting of a slate quarry, mostly below the surface of the ground, but partially above ground. One quarter of an acre of the quarry had been dug over, and the practice was to take a section of ten or twelve feet square on the surface, and go down to a certain depth, and then begin on the surface again. It was held, that not only that portion of the quarry which had been actually dug, but the whole extent owned by the husband must be considered as opened, and so the widow was entitled to dower in the same.
    Writ of dower. A special verdict was returned, in which the jury find that the late husband of the demandant was seised, during the coverture, of such an estate in the land described in the writ, as that he could endow the demandant thereof; that the land of which dower js demanded, consists of about fifty acres, a part of which, to wit, about four acres, contains a quarry of slate stones, lying mostly within from one foot to ten feet below the surface of the ground, but partially above ground ; that the quarry has been opened and worked for many years, and was worked by the demandant’s husband during his life, and has been worked by the tenant; that the stones of the quarry are valuable for grave stones and other purposes ; that they descend into the earth to a great depth, and will continue to afford a supply for many years ; that the quarry, as now opened, is in extent about one quarter of an acre, and in order to work it to advantage, it is necessary to begin at the top of the ground, at the edge of the-quarry, and remove the soil about ten feet by twelve in extent, and then to work down the quarry to the usual depth ; that this opening will last one or two years, as the quarry has hitherto been dug, and then the workmen begin at the surface and work down as before; that as the jury are not advised whether the demandant is or is not dowable of the quarry, they find the damage which she has sustained by reason of the detention of dower, is $ 60 for all the land excepting the quarry, and if she is dowable of the quarry, they assess $ 100 for the detention of dower of the quarry ; but upon the question whether she is dowable of the quarry or not, the jury pray the direction of the Court, and that their verdict may be entered accordingly.
    
      
      Churchill, for the demandant,
    referred to St. 1783, c. 36, § 4; St. 1783, c. 40, § 3 ; St. 1820, c. 54, § 1 ; Stoughton v. Leigh, 1 Taunt. 402, and cases there cited.
    Nov. 2d.
    
      Cushing, contrà,
    
    contended that the demandant was not dowable in the quarry, or that at most she was dowable in only so much of it as had been opened in the lifetime of her husband. Co. Lit. 53 b; Bac. Abr. Waste, C; 2 Rol. Abr. 816 ; Saunders's case, 5 Co. 12 ; Whitfield v. Bewit, 2 P. Wms. 242 ; Clavering v. Clavering, ibid. 388 ; Hoby v. Hoby, 1 Vern. 218 ; Stoughton v. Leigh, 1 Taunt. 402 ; Coates v. Cheever, 1 Cowen, 461 ; Conner v. Shepherd, 15 Mass. R. 167.
   Shaw C. J.

afterward drew up the opinion of the Court. Whatever doubts may have been formerly entertained, it seems now to be well settled, that a widow is entitled to dower in such mines and quarries, as were actually opened and used during the lifetime of the husband, and it makes no difference whether the husband continued to work them to the period of his death, or whether they have been continued since his death by the heir or his assignee. Stoughton v. Leigh, 1 Taunt. 402.

In New York, the right of dower has been held to attach to a bed of iron ore, and that such a bed of considerable extent must be regarded as opened, although the openings which had been wrought by the husband, had been partially filled up and abandoned, and other openings into the same bed had been made by the heir. Coates v. Cheever, 1 Cowen, 460.

The only question appears to be, whether it is sufficiently shown by the special verdict, that the whole of the slate quarry described therein was opened and wrought previously to the death of the demandant’s husband, so that it ought to be taken into consideration, in connexion with the residue of his estate, and dower assigned in the whole ; and the Court are all of opinion that it was.

A tract of about four acres lying together, contained the slate quarry, about a quarter of an acre of which had been dug over. The stone lay partly above, and the residue immediately under the surface, and as in going down, the quality improved, the practice had been to take a section of ten or twelve feet square, and to go down to the usual depth, and then begin on the surface again. We think it would be too narrow a construction to say that no part of this quarry was opened except that portion which had been actually dug; but it must be considered that the whole, lying together as one tract, belonging to one estate, and wrought in the manner described, was opened, and therefore that the widow was entitled to dower in that, as well as the other estate of which her husband had been seised during the coverture. The judgment therefore on the special verdict, must be entered for the larger sum. 
      
       Tenant in dotver of coal lands may take coal to any extent from a mine already opened, or sink new shafts into the same veins of coal, or dig into a new seam through one already opened above it. Crouch v. Puryear, 1 Randolph, 258. See King v. Dunsford, 2 Adolph. & El. 568,
     