and is a right of property which passes with the soil without any grant for the purpose, said: "It is a necessary consequence from this principle, that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation of an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskilfulness, but upon the violation of a right of property which has been invaded and disturbed. This unqualified rule is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. For an injury to buildings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining land, an action can only be maintained when a want of due care or skill, or positive negligence, has contributed to produce it." 2 Allen, 133. And it was accordingly adjudged that, if the defendant in that case, by excavating and carrying away earth on her own land, caused the plaintiff's land to fall and sink into the pit which she had dug, she was liable for the injury to the soil of the plaintiff; but that, in the absence of any proof of negligence in the execution of the work, the jury could not take into consideration, as an element of damage for which compensation could be recovered, the fact that the foundation of the plaintiff's house had been made to crack and settle, although the weight of his house did not contribute to the sliding or crumbling away of the soil.

The decisions in Thurston v. Hancock and Foley v. Wyeth are not affected by those in Hartshorn v. Worcester, 113 Mass. 111, and Marsden v. Cambridge, 114 Mass. 490, which related to claims for injuries. done in the making of a highway, and were based upon the terms of the Statutes upon that subject, and not upon the rule of the common law governing proprietors of adjoining lands.

By the modern authorities in Great Britain, it is clear that a right to the support of a building by adjacent land can arise only by grant or prescription. Wyatt v. Harrison, 3 B. & Ad. 871; Partridge v. Scott, 3 M. & W. 220; Caledonian Railway v. Sprot, 2 Macq. 449; Bonomi v. Backhouse, E., B. & E. 622, and 9 H. L. Cas. 503.

In Bonomi v. Backhouse, in which an action was maintained by an owner of land and of an ancient house, for damage occurring within six years, from the working of coal mines, two hundred and eighty yards from the house, more than six years before the commencement of the action, Mr. Justice Willes, delivering the judgment in the Exchequer Chamber, which was affirmed by the House of Lords, said: "The right to support of land and the right to support of buildings stand upon different footings as to the mode of acquiring them; the former being prima facie a right of property analogous to the flow of a natural river, or of air, though there may be cases in which it would be sustained as matter of grant; whilst the latter must be founded upon prescription or grant, express or implied; but the character of the

rights, when acquired, is in each case the same." E., B. & E. 654, 655. And Lord Wensleydale said: "I think it perfectly clear that the right in this case was not in the nature of an easement, but that the right was to the enjoyment of his own property, and that the obligation was cast upon the owner of the neighboring property not to interrupt that enjoyment." 9 H. L. Cas. 513.

The cases of Brown v. Robins, 4 H. & N. 186; Hunt v. Peake, H. R. V. Johns. 705, and Stroyan v. Knowles, 6 H. & N. 454, in which it was held that, in an action for causing soil to sink, which would have sunk if there had been no building upon it, the damages recovered might include the injury to the buildings also, are directly opposed to our own cases of Thurston v. Hancock and Foley v. Wyeth, in the latter of which Brown v. Robins was before the court.

Upon a question of this kind, affecting all the lands in the Commonwealth, it would be unjustifiable and mischievous for the court to change a rule of law which has been established and acted upon here for sixty years. Even in England, it is held that for digging upon neighboring land, and thereby causing the plaintiff's land to sink and his building to fall, although the jury find that the land would have sunk if there had been no building upon it, yet no action will lie, if no appreciable damage is proved to the land without the building. Smith v. Thackerah, L. R. 1 C. P. 564.

The weight of American authority is in accordance with the decisions of this court. It has generally been considered that for an excavation causing an injury to the soil in its natural state an action would lie; but that, without proof of a right by grant or prescription in the plaintiff, or of actual negligence on the part of the defendant, no action would lie for an injury to buildings by excavating adjoining land not previously built upon. Panton v. Holland, 17 Johns. 92; Lasala v. Holbrook, 4 Paige, 169; Hay v. Cohoes Co., 2 Comst. 159, 162; Mc Guire v. Grant, 1 Dutcher, 356; Richart v. Scott, 7 Watts, 460; Richardson v. Vermont Central Railroad, 25 Vt. 465; Beard v. Murphy, 37 Vt. 99, 102; Shrieve v. Stokes, 8 B. Mon. 453; Charless v. Rankin, 22 Mo. 566.

It is difficult to see how the owner of a house can acquire by prescription a right to have it supported by the adjoining land, inasmuch as he does nothing upon, and has no use of, that land, which can be seen or known or interrupted or sued for by the owner thereof, and therefore no assent of the latter can be presumed to the acquirement of any right in his land by the former. The English cases are founded on an analogy to the doctrine of ancient lights, which is not in force in this country. Hide v. Thornborough, 2 Car. & K. 250, 255, and Stansell v. Jollard, there cited; Solomon v. Vintners' Co., 4 H. & N. 585, 599, 602; Chasemore v. Richards, 7 H. L. Cas. 349, 385, 386; Greenleaf v. Francis, 18 Pick. 117, 122; Keats v. Hugo, 115 Mass. 204, Richart v. Scott, 7 Watts, 460, 462; Napier v. Bulwinkle, 5 Rich. 311, 324. But this case does not require us to determine that question,

215;

because there is no evidence that the structures and improvements upon the plaintiff's land have been there for twenty years.

Nor is it necessary to consider whether negligence on the part of the defendant could enlarge the measure of his liability; because the case stated does not find that he was negligent, nor set out any facts from which actual negligence can be inferred. The cause of action is that the plaintiff has an absolute right to have her soil stand in its natural condition, and that any one who injures that right is a wrongdoer, independently of any question of negligence. Foley v. Wyeth, 2 Allen, 131, 133; Hay v. Cohoes Co., 2 Comst. 159, 162; Richardson v. Vermont Central Railroad, 25 Vt. 465, 471; Humphries v. Brogden, 12 Q. B. 739. The fact that the defendant was not the owner of the adjoining land affords him no exemption. It was never considered necessary, in an action of this kind, to allege that the defendant owned or occupied the land on which the digging was done that injured the plaintiff's soil. Smith v. Martin, 2 Saund. 400 and note; Nicklin v. Williams, 10 Exch. 259. Even an agent of the owner of the adjoining land would be liable for his own negligence and positive wrongs; for his principal could not confer upon him any authority to commit a tort upon the property or the rights of another. Bell v. Josselyn, 3 Gray, 309; Story on Agency, § 311. And, upon the case stated, the defendant appears not to have been an agent of the owner of the land, but to have removed the soil therefrom for his own benefit, by permission of Gillighan, who had a like agreement with and license from the owner; and it is at least doubtful whether the owner of the land could be held responsible for the defendant's acts. Gayford v. Nicholls, 9 Exch. 702; Hilliard v. Richardson, 3 Gray, 349.

The case finds that the defendant ceased his work towards the end of October, and left the bank in such a shape that by the effect of rains and frost it was rendered insufficient to hold the soil of the plaintiff in its natural condition, and began to give way at once, although the plaintiff's soil was not actually disturbed till the month of March following. The necessary inference is that by the operation of natural and ordinary causes upon the land as it was left by the excavations of the defendant, and which he took no precaution to guard against, part of the soil of the plaintiff's land slid and fell off; and for the injury so caused to her soil this action may be maintained. But she cannot maintain an action for the injury to her fences and shrubbery, because her natural right and her corresponding remedy are confined to the land itself, and do not include buildings or other improvements thereon.

The remaining question is of the measure of damages. The peculiar form of the case stated, in this respect, as might be inferred from its terms, and as was admitted at the argument, has been occasioned by incorporating into it the substance of the award of an arbitrator. It is agreed that the "damages occasioned to the plaintiff, by loss of and injury to her soil alone, caused by the acts of the defendant, amount to ninety-five dollars." We are of opinion that she is entitled to recover

that sum, and no more.

She is clearly not entitled to recover the cost of putting her land into and maintaining it in its former condition, because that is no test of the amount of the injury. Mc Guire v. Grant, 1 Dutcher, 356. She cannot recover the difference in market value, because it does not appear that that difference is wholly due to the injury to her natural right in the land; it may depend upon the present shape of the lot, upon the improvements thereon, or upon other artificial circumstances which have nothing to do with the natural condition of the soil. Judgment for the plaintiff for $95.1

In an action upon the case, for stopping of a watercourse, which had used to have its current from such a place, through such a place, and so to come into the plaintiff's yard, and there to fill and supply a pond with water, for the necessary watering of his cattle, the defendant hath erected a stone wall, and so hath stopped this, that the plaintiff wanted his water, and was by this damnified.

The defendant pleaded in bar, a unity of possession in the land of the house, and place to which, and of the land through which, and of other land, of which, &c.

The only question moved, and insisted upon was, whether this unity of possession will extinguish this watercourse, or not.

This case was argued at the bar, and much debated, and for further argument, the same was adjourned to another time.

Afterwards (S.) Termin. Mich. 2 Car. R. B. R. this case was moved again, and urged, that by this unity of possession, the watercourse is not extinguished; and for this purpose, Coke, 4 pars., Terringham's

1 On the obligation to use care in excavating so as not to cause damage unneces sarily to a neighbor's house, although it has no right of support, see Peyton v. Mayor of London, 9 B. & C. 125; Dodd v. Holme, I A. & E. 493; Chadwick v. Trower, 6 Bing. N. C. 1; Austin v. Hudson River R. R. Co., 25 N. Y. 334; Shafer v. Wilson, 44 Md. 268; Gale, Easem. 248-266.

On the right to withdraw subjacent water, see Elliot v. N. East. R. Co., 10 H. L. C. 333; Popplewell v. Hodkinson, L. R. 4 Ex. 248; Horner v. Watson, 79 Pa. 242.

On the question when the right to damages accrues, see Backhouse v. Bonomi,

9 H. L. C. 503; Lamb v. Waker, 3 Q. B. D. 389; Mitchell v. Darley Main Colliery Co., 14 Q. B. D. 125; 11 Ap. Cas. 127.

On the right of support generally, see 1 Am. Law Rev. 1.

VOL. II.-7

Case; 14 H. 4, fol. 7, profit apprender extinct by unity; 21 E. 3, fol. 2, a way extinct by unity; 35 H. 6, fol. 55, 56, a warren not extinct by unity; he may hawk in his own land, 16 Eliz. Dyer. fol. 326; 13 Eliz. Dyer. fol. 295; 11 H. 7, fol. 25, the case of the gutter not extinct by unity, as it was urged; Terminum. Hillar. 36 Eliz. B. R. Rott. 1332, a case between Herneden and Crowch was urged, that service of enclosure, extinct by unity; and 39 Eliz.; Harrington's Case was urged, in which it was adjudged, that service of enclosure shall be extinct by unity of possession, and not to be afterwards revived.

Hillar. 4, Jac. B. R. Jourden against Attwood, the case of a way adjudged to be extinct by unity, as it was urged, and not to be revived; 24 E. 3, fol. 25, common extinct by unity.

11 H. 4, fol. 5, a way extinct by unity.

Dodderidge, J. If J. have a mill, and a watercourse unto it, he sells the land, he shall not stop the water, being matter of necessity, and not like unto the case of the way; therefore not to be extinct by unity, because of necessity, and the same hath a continual running.

The reason of the case of enclosure urged is, because the prescription there was interrupted, and therefore all gone, and extinct; and so it was adjudged, 3 Jac.

The whole court at this time seemed to be clear of opinion, that the watercourse here, was not extinct, by the unity of possession, there being a great difference between this case and the case of the way.

WHITLOCK, J. The course of a spring, is a natural course and current, and to stop this, may be a nuisance to the Commonwealth, and a private wrong.

Afterwards, this case was argued at large by all the four judges (Termin. Mich. 2 Car. R. B. R.), who all agreed in opinion, that judgment ought to be given for the plaintiff, and that the watercourse in this case is not extinct, by the unity of possession.

1. WHITLOCK, J. There is a difference between a way, a common, and a watercourse. Bracton, lib. 4, f. 221, 222, calls them servitutes prædiales, these which begin by private right, by prescription, by assent, as a way common, being a particular benefit, to take part of the profits of the land; this extinct by unity, because the greater benefit shall drown the less; a watercourse doth not begin by prescription, nor yet by assent, but the same doth begin ex jure naturæ, having taken this course naturally, and cannot be averted.

2. JONES, J. This watercourse is not extinct by the unity of possession, the same being a thing which ariseth out of the land, and no interest at all, by this claimed in the land, but quod currere solebat, this way, and so to have continuance of this.

3. Dodderidge, J. Agreed herein, that this watercourse is not extinct by the unity of possession.

1. Because the nature of this is to be current.

2. Because it is also a thing of necessity, for the watering of cattle, and a thing which of necessity is to have continuance, the same not to