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on these premises : Or if there should be, it is uncertain when such erections may be made. To require this extraordinary relief, the injury complained of must actually exist, or the danger must appear to be certain and immediate, and not depending on any contingency. We think it therefore very manifest, that these owners of vacant lots have made out no title to the interposition of a court of equity: Attorney General v. Nichol, 16 Ves. 342; Fishmongers' Co. v. East India Co., 1 Dick. 164; Wynstanley v. Lee, 2 Swanst. 336; Bonaparte v. Camden & Amboy Rail Road Co., 1 Bald. 231 ; 2 Story on Eq. $ 925.
On this ground the defendant's counsel contends that the bill must be dismissed, and that by the rules of pleading and practice in courts of equity, it cannot, at this stage of the proceedings, be amended. And several cases have been cited, in which it was decided that if a party having an interest, joins with him, as a co-plaintiff, a party having no interest, the bill is demurrable, if the facts appear on the bill, and if not, that they may be well pleaded in defence. And as to the rule of amendments, it is well settled in the courts of equity in England, that no amendment generally is allowable, after the parties are at issue and witnesses have been examined. But there are some exceptions, when it is necessary to make new parties ; which may be done by special leave of court. Story, Eq. Pl. § 332; Mitf. Pl. (3d ed.) 262. Goodwin v. Goodwin, 3 Atk. 370. But on the question of amendments we are not bound by the English rules of practice. By our Rev. Sts. C. 100, § 22, “ the court, in which any civil action is pending, may, at any time before judgment rendered therein, allow amendments, either in form or substance, of any process, pleading, or proceeding in such action, on such terms as shall be just and reasonable." Under this provision, we should not hesitate to allow an amendment of the bill on reasonable terms, if by any amendment it could be maintained.
We are therefore to consider the second ground of defence, and to determine whether either of the plaintiffs, according to the rules and principles of equity, is entitled to the relief prayed for.
The defence is, that the defendant, and those from whom he derives his title, have been in the possession of the buildings in which he carries on his trade, for more than twenty years ; during which time, he and they have carried on said trade without molestation or interruption, excepting for about two years, when the said buildings were not so used by them. This, prima facie, is a good foundation for the presumption of a grant, unless the said non user is to be considered as breaking the continuity of the possession. The facts and circumstances in evidence are not sufficient to enable the court to give any decisive opinion on this point; but such as the evidence is, it is not sufficient to show any relinquishment or abandonment, by the persons under whom the defendant claims, of any of their privileges ; and no interruption of their enjoyment of them by the plaintiffs is either proved or alleged. The mere ceasing to enjoy an easement does not destroy a party's right, unless it appears from the facts and circumstances that he intended to
her the Easementsle by pre alleged nulot it is
abandon and not to resume it. So it was decided in Moore v. Rawson, 3 Barn. & Cres. 332; s. C. 5 Dowl. & Ryl. 234. In that case, the party's right to the easement bad become perfect before he ceased to enjoy it, and in that respect it differs from the present case; but the principle, we think, applies here. The material inquiry in all such cases is, whether there was an intention to abandon the easement or privilege before enjoyed, or whether the non user is imputable to some other cause. See Gale & Whatley on Easements (Amer. ed.), 262.
Another objection to the defendant's title by prescription is, that until lately the plaintiffs suffered no damage from the alleged nuisance, and therefore could not interpose to prevent its continuance. But it is very clear that where a party's right of property is invaded, he may maintain an action for the invasion of his right. without proof of actual damage. So it was decided in Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 247, and the principle is unquestionable. 2 East, 161; 2 Met. 469; 4 Met. 477.
Some other objections were made to the defendant's prescriptive right, wbich however it is not important to remark upon, for the most that can be urged is, that the defendant's right is doubtful; and that is sufficient for him to show, as a defence, in the present suit. It has been frequently decided that when works have been suffered to remain three years or upwards, that is considered such laches as to preclude the party from having relief in a court of equity, without going first to law. It was so decided in Weller v. Smeaton, 1 Cox, 102, and in Reid v. Gifford, 6 Johns. Ch. 19.
In the present case, the defendant has been in the uninterrupted possession of his buildings and works ever since the year 1825, carrying on his trade and business during the whole time, without any objection made by the plaintiffs until recently. And in addition he has proved a good prima facie title by prescription. Whether the plaintiffs may be able to impeach this title effectually, we do not know; but that question is to be tried in an action at law. And before its determination, this court, as a court of equity will not interpose.
Nor is this a case in which the proceedings ought to be suspended until the trial and decision of the title at law. That would be a proper course to pursue, where a temporary injunction becomes necessary to prevent irreparable damage ; but to justify such an interposition, the injury ought to be of such a nature as not to admit of delay. This is not such a case. And there seems to be no good reason to doubt, that if the plaintiff's can maintain an action at law, they may obtain an adequate remedy without any interposition of a court of equity. So if the nuisance complained of has become, or shall become, a public nuisance, the law has provided an effectual remedy.
i No right of air to a windmill can be acquired by prescription. Webb v. Bird, 10 C. B. N. S. 268 ; 13 C. B. N. S. 841 ; nor to a chimney, Bryant v. Lefever, 4 C. P. D. 172. As to when an injunction will be refused, though an action may lie, see Cooke v. Forbes, L. R. 5 Eq. 166.
VOL. 11. - 5
HUMPHRIES v. BROGDEN.
Queen's Bench. 1850.
[Reported 12 Q. B. 739.) This was an action against the Durham County Coal Company, sued in the name of their secretary. On the trial, before Coleridge, J., at the Durham Spring Assizes, 1850, the jury, in answer to questions put by the learned judge, found the facts specially. His Lordship then directed a verdict for the plaintiff, giving the defendants leave to move to enter a verdict for them upon the findings of the jury. Knowles, in Easter Term, 1850, obtained a rule nisi accordingly. In Trinity Term, 1850, Watson and Joseph Addison showed cause, and Knowles and Hugh Hill supported the rule. The judgment of the court states so fully the nature of the case, the pleadings, and the arguments and authorities adduced on both sides, as to render any further statement unnecessary.
Cur. adv. vult.
LORD CAMPBELL, C. J., now delivered the judgment of the court.
This is an action on the case. The declaration alleges that the plaintiff was possessed of divers closes of pasture and arable and, situate, &c., yet that the company, so wrongfully, carelessly, negligently, and improperly, and without leaving any proper and sufficient pillars or supports in that behalf, and contrary to the custom and course of practice of mining used and approved of in the country where the mines thereinafter mentioned are situate, worked certain coal mines under and contiguous to the said closes, and dug for and got and moved the coals, minerals, earth and soil of and in the said mines, that by reason thereof the soil and surface of the said closes sank in, cracked, swagged and gave way; and thereby, &c. The only material plea was not guity.
The cause coming on to be tried before my Brother Coleridge at the last Spring Assizes for the county of Durham, it appeared that the plaintiff was possessed of the closes described in the declaration, and that the Durham County Coal Company (who may sue and be sued by their secretary) were lessees, under the Bishop of Durham, of the coal mines under them ; but there was no other evidence whatever as to the tenure or the title either of the surface or of the minerals. It appeared that the company had taken the coals under the plaintiff's closes, withont leaving any sufficient pillars to support the surface, whereby the closes had swagged and sunk, and had been considerably injured; but tbat, supposing the surface and the minerals to have belonged to the same person, these operations had not been conducted carelessly or negligently or contrary to the custom of the country. The jury found that the company had worked carefully and according to the custom of the country, but without leaving sufficient pillars or supports : and a verdict was entered for the plaintiff for £110 damages, with leave to move to enter a verdict for the defendant, if the court should be of opinion that under these circumstances the action was not maintainable.
The case was very learnedly and ably argued before us in Easter and Trinity terms last. On account of the great importance of the question, we have taken time to consider of our judgment.
For the defendant it was contended that, after the special finding of the jury, the declaration is defective in not alleging that the plaintiff was entitled to have his closes supported by the subjacent strata. But we are of opinion that such an allegation is unnecessary to raise the question in this action, Whether the company, although they did not work the mines negligently or contrary to the custom of the country, were bound to leave props to support the surface? If the easement which the plaintiff claims exists, it does not arise from any special grant or reservation, but is of common right, created by the law, so that we are bound to take notice of its existence. In pleading, it is enough to state the facts from which a right or a duty arises. The carefully prepared declaration in Littledale v. Lord Lonsdale, 2 H. BI. 267 (Earl of Lonsdale v. Littledale), for disturbing the right of the owner of the surface of lands to the support of the mineral strata belonging to another, contains no express allegation of the right; and, if the omission had been considered important, it probably would have been relied upon, rather than the objection that a peer of Parliament was not liable to be sued in the Court of King's Bench by bill.
We have therefore to consider, whether, when the surface of land (by which is here meant the soil lying over the minerals) belongs to one man, and the minerals belong to another, no evidence of title appearing to regulate or qualify their rights of enjoyment, the owner of the minerals may remove them without leaving support sufficient to maintain the surface in its natural state? This case is entirely relieved from the consideration how far the rights and liabilities of the owners of adjoining tenements are affected by the erection of buildings : for the plaintiff claims no greater degree of support for his lands than they must have required and enjoyed since the globe subsisted in its present form.
Where portions of the freehold, lying one over another perpendicularly, belong to different individuals, and constitute (as it were) separate closes, the degree of support to which the upper is entitled from the lower has as yet by no means been distinctly defined. But, in
the case of adjoining closes which belong respectively to different persons from the surface to the centre of the earth, the law of England has long settled the degree of lateral support which each may claim from the otier; and the principle upon which this rests may guide us to a safe solution of the question now before us.
In 2 Rolle's Abridgment, 564, tit. Trespass (1), pl. 1, it is said : “ If A., seised in fee of copyhold land next adjoining land of B., erect a new house on his copyhold land” (I may remark that the circumstance of A.'s land being copyhold is wholly immaterial), “ and part of the house is erected on the confines of his land next adjoining the land of B., if B. afterwards digs his land near to the foundation of the house of A., but not touching the land of A., whereby the foundation of the house and the house itself fall into the pit, still no action lies at the suit of A. against B., because this was the fault of A. himself that he built his house so near to the land of B., for he could not by his act hinder B. from making the most profitable use of B.'s own land ; Easter Term, 15 Car. B. R. Wilde v. Minsterley. But, semble that a man who has land next adjoining to my land cannot dig his land so near to my land that thereby my land shall fall into his pit; and for this, if an action were brought, it would lie.” This doctrine is recognized by Lord C. B. Comyns, Com. Dig. Action upon the Case for a Nuisance (A); by Lord Tenterden, in Wyatt v. Harrison, 3 B. & Ad. 871, 876 ; and by other eminent judges. It stands on natural justice, and is essential to the protection and enjoyment of property in the soil. Although it places a restraint on what a man may do with his own property, it is in accordance with the precept, Sic utere tuo ut alienum non loedas. As is well observed by a modern writer : “ If the neighboring owners might excavate their soil on every side up to the boundary line to an indefinite depth, land thus deprived of support on all sides could not stand by its own coherence alone;" Gale on Easements, p. 216.
This right to lateral support from adjoining soil is not, like the support of one building upon another, supposed to be gained by grant, but is a right of property passing with the soil. If the owner of two adjoining closes conveys away one of them, the alienee, without any grant for that purpose, is entitled to the lateral support of the other close the very instant when the conveyance is executed, as much as after the expiration of twenty years, or any longer period. Pari ratione, where there are separate freeholds from the surface of the land and the minerals belonging to different owners, we are of opinion that the owner of the surface, while unincumbered by buildings and in its natural state, is entitled to have it supported by the subjacent mineral strata. Those strata may of course be removed by the owner of them. so that a sufficient support for the surface is left: but, if the surface subsides and is injured by the removal of these strata, although, on the supposition that the surface and the minerals belong to the same owner, the operation may not have been conducted negligently nor contrary to the custom of the country, the owner of the surface may maintain an