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in specie, reserving a right in the lord to deprive his grantee of the enjoyment of the thing granted, such a clause must be rejected as repugnant and absurd. That the prescription or custom here pleaded has this destructive effect, and is so repugnant and void, appears to us too clear from the simple statement to admit of illustration by argument.”
The most recent case referred to was Smith v. Kenrick, 7 Com. B. 515, 564, in which the Court of Common Pleas, after great deliberation, held that it is the right of each of the owners of adjoining mines, where neither mine is subject to any servitude to the other, to work his own mine, as far as the flow of water is concerned, in the manner which he deems most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine; so that such prejudice does not arise from the negligent or malicious conduct of his neighbor. But no question arose there respecting any right to support; the controversy being only respecting the obligation to protect an adjoining mine froin water which may flow into it by the force of gravitation. And in the very learned judgment of the court, delivered by my Brother Cresswell, there is nothing laid down to countenance the doctrine that, in a case circumstanced like this which we have to determine, the owner of the minerals may, if not chargeable with malice or negligence, remove them so as to destroy or damage the surface over them which belongs to another.
We have attempted without success to obtain from the Codes and Jurists of other nations information and assistance respecting the rights and obligations of persons to whom sections of the soil, divided hori. zontally, belong as separate properties. This penury, where the subject of Servitudes is so copiously and discriminately treated, probably proceeds from the subdivision of the surface of the land and the minerals under it into separate holdings being peculiar to England. Had such subdivision been known in countries under the jurisdiction of the Roman civil law, its incidental rights and duties must have been exactly defined, when we discover the right of adjoining proprietors of lands to support from lateral pressure leading to such minute regulations as the following: “Si quis sepem ad alienum prædium fixerit, infoderitque, terminum ne excedito: si maceriam, pedem relinquito: si verò domum, pedes duos : si sepulchrum aut scrobem foderit, quantum profunditatis habuerint, tantum spatii relinquito: si puteum, passûs latitudinem." Dig. Lib. X. Tit. I. (Finium regundorum) s. 13.
The Code Napoléon likewise recognizes the support to which the owners of adjoining lands are reciprocally entitled, but contains nothing which touches the question for our decision more closely than the following article on “ Natural Servitudes.” 1 " Les fonds inférieurs sont assujettis, envers ceux qui sont plus élevés, à recevoir les eaux qui en découlent naturellement sans que la main de l'homme y ait contribué." “Le propriétaire supérieur ne peut rien faire qui aggrave la servitude du fonds inférieur.” Code Civil, liv. ii. tit. iv. ch. i. art. 640. But reference is here made to adjoining fields on a declivity, not to the surface of land, and the minerals, being held by different proprietors.
1 Servitudes qui dérivent de la situation des lieux.
The American lawyers write learnedly on the support which may be claimed for land from lateral pressure, and for buildings which have long rested against each other, but are silent as to the support which the owner of the surface of lands may claim from the subjacent strata when possessed by another. See Kent's Commentaries, Part vi. Lecture lii. vol. iii. p. 434, ed. 1840.
However, in Erskine's Institute of the Law of Scotland, treating of the servitude, Oneris ferendi, the very learned author has the following passage, which well illustrates the principle on which our decision is founded : “Where a house is divided into different floors or stories, each floor belonging to a different owner, which frequently happens in the city of Edinburgh," " the proprietor of the ground floor is bound merely by the nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to repair his own property, that it may be capable of bearing that weight.” “The proprietor of the ground story is obliged to uphold it for the support of the upper, and the owner of the upper must uphold that as a roof or cover to the lower.” Book ii. tit. 9, s. 11.
For these reasons, we are all of opinion that the present action is maintainable, notwithstanding the negation of negligence in the working of the mines; and that the rule to enter a verdict for the defendant must be discharged. We need hardly say that we do not mean to lay down any rule applicable to a case where the prima facie rights and liabilities of the owner of the surface of the land and of the subjacent strata are varied by the production of title deeds or by other evidence.
BROWN v. ROBINS.
[Reported 4 H. & N. 186.)
That whereas, before and at the time of the committing of the grievances, &c., the plaintiff was possessed of certain land with a certain house and outbuildings standing and being thereon ; and whereas there were certain foundations of and supporting the said house and outbuildings, which the plaintiff had of right enjoyed and onght to enjoy, set the defendant wrongfully, negligently, carelessly and improperly, without leaving sufficient support in that behalf, worked certain mines near to and adjoining the said land, whereby the said land and the said foundations of the said house and outbuildings sank,
swagged and gave way, &c.
Pleas. — First: Not guilty. Second : That at the time of the supposed grievance the plaintiff did not of right enjoy, nor ought of right to enjoy, the said foundations of and supporting the said house and outbuildings.
At the trial, before Byles, J., at the last Stafford Assizes, it appeared that the plaintiff was the owner of a house and outbuildings, situate to the east of a lane called Bill Hay Lane, but not adjoining to it, inasmuch as a garden and lawn, belonging to another owner, lay between the plaintiff's premises and Bill Hay Lane, and adjoined them on the opposite sides. The plaintiff's house had been built in 1834 on solid ground.
Between 1828 and 1831 coal had been gotten by one Jesson from under that part of the garden and lawn which adjoined the lane, but not up to the plaintiff's premises. Ribs and pillars of coal were at that time left to support the surface. In 1838 Jesson began to work the coal on the west side of Bill Hay Lane, leaving a rib of coal against the lane. In 1846 “ crownings in ” took place in the lawn and garden. In working the thick coal in Staffordshire, it is the practice to get out a certain quantity of coal in the first instance, leaving what are called ribs, to prevent water and air from coming in from adjoining mines, and pillars to support the surface. The pillars are eight yards square, the intervals between them eight yards in width. When the coal is worked out between the pillars, the mines are left for some years that the earth may settle. During this time it sometimes happens that in some places droppings of earth continually take place from the roof between the pillars, and by degrees the surface falls in, causing a basinshaped hollow on the surface; this is called “ a crowning in.” After the soil has become consolidated the mine is again worked, and the ribs got out as far as possible. In 1854 the defendant, who was then the owner of the mines on the west side of Bill Hay Lane, began to work out the ribs and pillars left by Jesson in 1838. The nearest of the defendant's workings were at a distance of thirty-five yards from the plaintiff's house. In 1857 the plaintiff's house began to crack. The plaintiff's witnesses alleged that the damage was caused by the getting of the ribs and pillars by the defendant on the west side of Bill Hay Lane. There was evidence that the defendant knew of the excavations on the east side of the lane.
The learned judge asked the jury, — First, was the sinking of the plaintiff's premises caused by the defendant's workings, either alone or in conjunction with anything else? The jury answered this question in the affirmative.
Secondly. - Would the same damage have arisen from the defendant's workings if the ground had been left solid on the east side of Bill Hay Lane?
The jury found that it would not; but that some of the damage would have happened.
Thirdly. – Did the plaintiff enjoy, as of right, support from the defendant's ribs and pillars? His Lordship said that the plaintiff's house was built in 1834 The excavations on the east side of Bill Hay Lane were finished in 1831, and therefore existed for twenty years when the defendant's workings began in 1854. If the defendant knew of the excavations on the east of Bill Hay Lane, the plaintiff had enjoyed as of riglit for twenty years the support of the defendant's soil. The jury found that the defendant did know of the excavations.
Fifthly. - Did the land fall from the superincumbent weight of the house, or would it have fallen if no house had been erected upon it? The jury found that the land would have fallen in the same manner whether there had been a house upon it or not.
Sisthly: – If the damages arose partly from the defendant's workings, and partly from the old workings to the east of Bill Hay Lane, how much was occasioned by the defendant's workings, and how much by the old workings? The jury found £300 damages, £250 occasioned by the defendant's workings, and £50 partly by the defendant's workings and partly by the old workings to the east of the lane. Upon these findings the learned judge directed a verdict to be entered for the plaintiff
' for £300, reserving leave for the defendant to inove to enter a verdict or to reduce the damages to £250; neither party to be at liberty to
Huddleston, in Michaelmas Term, obtained a rule to show cause why the verdict should not be entered for the defendant upon the plea of not guilty, so far as relates to the allegations that the defendant worked carelessly and negligently, on the ground that those allegations were not supported by the evidence; and on the second issue, on the ground that the plaintiff had not enjoyed, as of right, for twenty years, the right of support for his buildings from the ribs and pillars of coal worked by the defendant; that there was no evidence nor was it found by the jury that the defendant, or those under whom he claimed, knew for twenty years that the plaintiff's premises were in fact supported by the mines worked by the defendant; or why the damages should not be reduced to £250, on the ground that as to £50, the damage was not occasioned by the defendant's working, but by the “ crownings in ” on land adjoining the plaintiff's premises; or why a new trial should not be bad on the ground of misdirection, namely, that the learned judge should have directed the jury that no right of support from the ribs and pillars of coal west of Bill Hay Lane worked by the defendant was gained for the plaintiff's buildings, unless the defendant, or those under whom he claimed, knew for twenty years that, in consequence of the excavated state of the mines east of Bill Hay Lane, the plaintiff's buildings were in fact being supported by the said ribs and pillars, and that there was no evidence of such knowledge, and that, as the plaintiff did not establish a right of support for bis buildings from defendant's ribs and pillars, the damages were excessive in respect of any supposed injury to the plaintiff's land.
Gray and Scotland now showed cause.
of the rule.
POLLOCK, C. B. This rule must be discharged. As to the right of support for the house quâ house, if necessary to decide it, which it is not, I should be disposed to hold that the plaintiff was entitled to the support of the surrounding ground. But the moment the jury found that the subsidence of the land was not caused by the weight of the superincumbent buildings, the existence of the house became unimportant in considering the question of the defendant's liability. It is as if a mere model stood there, the weight of which bore so small a proportion to that of the soil as practically to add nothing to it. The plaintiff's complaint resolves itself into this, that the land was injured ; and the house was considered by the learned judge solely with reference to the amount of the damages. Then it is said that the same amount of damage would not have happened if the land to the east of Bill Hay Lane had been left solid. If the excavation to the east of Bill Hay Lane contributed to the damage, did the defendant know that this ground was riddled by mines? The jury found that he knew it. He knew there was greater danger of injuring the plaintiff by sinking on the west side of the lane than there would have been if the ground on the east side had been left solid, and he ought to have known that the excavated ground was less powerful and gave less support on that side. He is therefore responsible for the whole of the damage. The objections upon which the rule was founded are answered in every part, and the rule must therefore be discharged.
MARTIN, B. I am of the same opinion. The rule was obtained on several grounds. First, that there was no evidence of negligence on the part of the defendant. It was admitted that this fails because, if the plaintiff was entitled to the support of the defendant's land and was deprived of it, the absence of negligence is immaterial. Secondly, that the support was not enjoyed as of right. The mode in which the question was dealt with shows that this issue was properly decided in favor of the plaintiff. There was ample evidence that the defendant knew the state of the plaintiff's land. There is no ground for reducing the damages. The house was lawfully on the plaintiff's land, and was damaged by the unlawful act of the defendant. As to the point that no right of support by the defendant's ribs and pillars had been acquired, unless the defendant knew that in consequence of the excavated state of the plaintiff's ground his buildings were in part supported by these ribs and pillars, and there was no evidence of such knowledge, I think there was ample evidence. I do not wish to consider that as a criterion of the defendant's liability ; but it was so treated.
Watson, B. When the report of the learned judge was read, it became clear that there was no ground for this rule. It was alleged that there was no evidence that the defendant had worked carelessly ; but the meaning is that he worked carelessly with reference to the rights of the plaintiff. The defendant desired to raise a question as to the right of support by adjacent land. When a great weight is put on land which immediately causes a pressure upon the adjoining land, a