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action against the owner of the minerals for the damage sustained by the subsidence. Unless the surface close be entitled to this support from the close underneath, corresponding to the lateral support to which it is entitled from the adjoining surface close, it cannot be securely enjoyed as property; and under certain circumstances, as where the mineral strata approach the surface and are of great thickness, it might be entirely destroyed. We likewise think that the rule giving the right of support to the surface upon the minerals, in the absence of any express grant, reservation or covenant, must be laid down generally without reference to the nature of the strata, or the difficulty of propping up the surface, or the comparative value of the surface and the minerals. We are not aware of any principle upon which qualifications could be added to the rule ; and the attempt to introduce them would lead to uncertainty and litigation : greater inconvenience cannot arise from this rule, in any case, than that which may be experienced where the surface belongs to one owner, and the minerals to another, who cannot take any portion of them without the consent of the owner of the surface. In such cases a hope of reciprocal advantage will bring about a compromise advantageous to the parties
and to the public.
Something has been said of a right to a reasonable support for the surface : but we cannot measure out degrees to which the right may extend ; and the only reasonable support is that which will protect the surface from subsidence, and keep it securely at its ancient and natural
The defendant's counsel have argued that the analogy as to the support to which one superficial close is entitled from the adjoining superficial close cannot apply where the surface and the minerals are separate tenements belonging to different owners, because there must have been unity of title of the surface and the minerals, and the rights of the parties must depend upon the contents of the deeds by which they were severed. But, in contemplation of law, all property in land having been in the Crown, it is easy to conceive that, at the same time, the original grant of the surface was made to one, and the minerals under it to another, without any express grant or reservation of any easement. Suppose (what has generally been the fact) that there has been in a subject unity of title from the surface to the centre: if the surface and the minerals are vested in different owners without any deeds appearing to regulate their respective rights, we see no difficulty in presuming that the severance took place in a manner which would confer upon the owner of the surface a right to the support of the minerals. If the owner of the entirety is supposed to have alienated the surface, reserving the minerals, he cannot be presumed to have reserved to himself, in derogation of his grant, the power of removing all the minerals without leaving a support for the surface; and, if he is supposed to have alienated the minerals, reserving the surface, he cannot be presumed to bare parted with the right to that support for the surface by the minerals which it had ever before enjoyed. Perhaps it may be said that, if the grantor of the minerals, reserving the surface, seeks to limit the right of the grantee to remove them, he is acting in derogation of his grant, and is seeking to hinder the grantee from doing what he likes with his own: but, generally speaking, mines may be profitably worked, leaving a support to the surface by pillars or ribs of the minerals, although not so profitably as if the whole of the minerals be removed ; and a man must so use his own as not to injure his neighbor.
The books of reports abound with decisions restraining a man's acts upon and with his own property, where the necessary or probable consequence of such acts is to do damage to others. The case of common occurrence nearest to the present is, where the upper story of a house belongs to one man and the lower to another. The owner of the upper story, without any express grant, or enjoyment for any given time, has a right to the support of the lower story. If this arises (as has been said) from an implied grant or covenant, why is not a similar grant or covenant to be implied in favor of the owner of the surface of land against the owner of the minerals? If the owner of an entire house, conveying away the lower story only, is, without any express reservation, entitled to the support of the lower story for the benefit of the upper story, why should not an owner of land, who convey's away the minerals only, be entitled to the support of the minerals for the benefit of the surface?
I will now refer, in chronological order, to the cases which were cited in the argument; and I think that none of them will be found in any degree to impugn the doctrine on which our decision rests. In Bateson v. Green, 5 T. R. 411, Buller, J., say's :
" Where there are two distinct rights, claimed by different parties, which encroach on each other in the enjoyment of them, the question is, Which of the two rights is subservient to the other?” And it was held that the lord may dig clay pits on a common, or empower others to do so, without leaving sufficient herbage for the commoners, if such right can be proved to have been always exercised by the lord. So, here, the right of the owner of the minerals to remove them may be subservient to the right of the owner of the surface to have it supported by them.
Peyton v. The Mayor, &c. of London, 9 B. & C. 725, was cited to show the necessity for introducing into the declaration an averment that the plaintiff was entitled to the easement or right which is the foundation of the action : but the easement there claimed was a right of support of one building upon another, which could arise only from a grant actual or implied; and there Lord Tenterden says: “ The declaration in this case does not allege, as a fact, that the plaintiffs were entitled to have their house supported by the defendants' house, nor does it in our opinion contain any allegation from which a title to such support can be inferred as a matter of law.” In the case at bar, we are of opinion that the declaration alleges facts from which the law infers the right of support which the plaintiff claims.
Wyatt v. Harrison, 3 B. & Ad. 871, decided that the owner of a house, recently erected on the extremity of his land, could not maintain an action against the owner of the adjoining land for digging in his own land so near to the plaintiff's house that the house fell down: but the reason given is, that the plaintiff could not, by putting an additional weight upon his land, and so increasing the lateral pressure upon the defendant's land, render unlawful any operation in the defendant's land which before would have caused no damage ; and the court intimated an opinion that the action would have been maintainable, not only if the defendant's digging would have made the plaintiff's land crumble down unloaded by any building, but even if the house had stood twenty years. Where a house has been supported more than twenty years by land belonging to another proprietor, with his knowledge, and he digs near the foundation of the house, whereby it falls, he is liable to an action at the suit of the owner of the house ; Stansell v. Jollard, 1 Selw. Ni. Pri. 457 (11th ed.), and Hide v. Thornborough, 2 Carr. & Kir. 250. Although there may be some difficulty in discovering whence the grant of the easement in respect of the house is to be presumed, as the owner of the adjoining land cannot prevent its being built, and may not be able to disturb the enjoyment of it without the most serious loss or inconvenience to himself, the law favors the preservation of enjoyments acquired by the labor of one man and acquiesced in by another who has the power to interrupt them; and, as, on the supposition of a grant, the right to light may be gained from not erecting a wall to obstruct it, the right to support for a new building erected near the extremity of the owner's land may be explained on the same principle.
In Dodd v. Holme, 1 A. & E. 493, where there is a good deal of discussion respecting the rights of owners of adjoining lands or houses, no point of law was determined, as the case turned upon the allegation in the declaration that the defendants dug carelessly, negligently, unskilfully
, and improperly,” whereby " the foundations and walls” of the plaintiff's house gave way." The plaintiff's house was proved to have been in a very bad condition ; but Lord Denman said that the defendants had no right to accelerate its fall.
The Court of Exchequer, in Partridge v. Scott, 3 M. & W. 220, concurred in the law before laid down in this court, that a right to the support of the foundation of a house from adjoining land belonging to another proprietor can only be acquired by grant, and that, where the
built on excavated land, a grant is not to be presumed till the house has stood twenty years after notice of the excavation to the person supposed to have made the grant; but nothing fell from any of the judges questioning the right to support which land, while it remains in its natural state, has been said to be entitled to from the adjoining land of another proprietor. Some land of the plaintiff's not covered with buildings had likewise sunk, in consequence of the defendant's operations in his own land; but the court, in directing a verdict to be entered for the defendants on the whole declaration, seems to have
thought that the sinking of the plaintiff's land was consequential upon the fall of the houses, or would not have taken place if his own land had not been excavated.
The judges in the Exchequer Chamber held, upon a writ of error from the Court of Common Pleas in Chadwick v. Trover, 6 New Ca. 1; see Trower v. Chadwick, 3 New Ca. 334, that the mere circumstance of juxtaposition does not render it necessary for a person who pulls down his wall to give notice of his intention to the owner of an adjoining wall which rests upon it, and that he is not even liable for carelessly pulling down his wall if he had not notice of the existence of the adjoining wall; but this decision proceeds upon the want of any allegation or proof of a right of the plaintiff to have his wall supported by the defendant's, and does not touch the rights or obligations of conterminous proprietors, where the tenement to be supported remains in its natural condition.
Next comes the valuable case of Harris v. Ryding, 5 M. & W. 60, which would be a direct authority in favor of the present plaintiff, if it did not leave some uncertainty as to the effect of the averment, in the declaration, of working “ carelessly, negligently, and improperly," and as to whether the plaintiff was considered absolutely entitled to have his land supported by the subjacent strata, to whatever degree the affording of this support might interfere with the defendant's right to work the minerals. There one seised in fee of land conveyed away the surface, reserving to himself the minerals with power to enter upon the surface to work them; and it is said to have been held that, under this reservation, he was not entitled to take all the minerals, but only so much as “could be got, leaving a reasonable support to the surface" (p. 70). The case was decided upon a demurrer to certain pleas justifying under the reservation, and the declaration alleged careless, negligent, and improper working, which there must be considered as admitted, whereas here it is negatived by the verdict; but the barons, in the very comprehensive and masterly judgment which they delivered seriatim, seem all to have thought that the reservation of the minerals would not have justified the defendant in depriving the surface of a complete support, however carefully he might have proceeded in removing them. Lord Abinger says: “ The plea is no answer, because it does not set forth any sufficient ground to justify the defendants in working the mines in such a manner as not to leave sufficient support for the land above, which is alleged by the declaration to be a careless, negligent, and improper mode of working them." Parke, B., observes : it never could have been in the contemplation of the parties “ that, by virtue of this reservation of the mines, the grantor should be entitled to take the whole of the coal and let down the surface, or injure the enjoyment of it;" and, again : " This plea is clearly bad, because the defendants do not assign that in taking away the coal they did leave a sufficient support for the surface in its then state.” The question is," says Alderson, B., " whether the grantor is not to get the minerals
which belong to him, and which he has reserved to himself the right of getting, in that reasonable and ordinary mode in which he would be authorized to get them, provided he leaves a proper support for the land which the other party is to enjoy.” My Brother Maule, then a judge of the Court of Exchequer, says, in the course of his luminous judgment: The right of the defendants “ to get the mines is the right of the mine-owners, as against the owner of the land which is above it. That right appears to me to be very analogous to that of a person having a room in a house over another man's room, or an acre of land arljoining another man's acre of land.” Parke, B., that he might not be misunderstood as to the right of the owner of the surface, afterwards adds: “I do not mean to say that all the coal does not belong to the defendants, but that they cannot get it without leaving sufficient support.” It seems to have been the unanimous opinion of the court that there existed the natural easement of support for the upper soil from the soil beneath, and that the entire removal of the inferior strata, however skilfully done, would be actionable, if productive of damage by withdrawing that degree of support to which the owner of the surface was entitled, the duty of the owner of the servient tenement forbidding him to do any act whereby the enjoyment of the easement could
The counsel for the defendant cited and relied much upon the case of Acton v. Blundell, 12 M. & W. 324, in which it was held that a land owner, who, by mining operations in his own lands, directs a subterraneous current of water, is not liable to an action at the suit of the owner of the adjoining land, whose well is thereby laid dry. But the right to running water and the right to have land supported are so totally distinct, and depend upon such different principles, that there can be no occasion to show at greater length how the decision is
We have now to mention the case of Hilton v. Lord Granville, 5 Q. B.701. A writ of error may probably be brought in this case (see 12 A. & E. 737, note c], when all the issues at fact have been disposed of ; and nothing which I now say is to preclude me from forming any opinion upon it, should I ever hear it argued. If well decided, the plaintiff is justified in relying upon it; for it is strongly in point. This court there held that a prescription or a custom within a manor for the lord, who is seised in fee of the mines and collieries therein, to work them
any dwelling houses, buildings, and lands, parcel of the manor, doing no unnecessary damage, and paying to the tenants and occupiers of the surface of lands damaged thereby a reasonable compensation for the use of the surface of the lands, but without making compensation for any damage occasioned to any dwelling houses or other buildings within or parcel of the manor by or for the purpose of working the said mines and collieries, is void as being unreasonable. Lord Denman, C. J., said: “A claim destructive of the subject matter of the grant cannot be set up by any usage. Even if the grant could be produced