nice question sometimes arises; but here everything was determined, by the finding of the jury, that the accident was not caused by the weight of the building, and that this weight had no effect in causing the subsidence of the soil. As to the damages, the jury found that the defendant, knowing the state of the plaintiff's land, worked his own mines, and so caused the injury. There is, therefore, no ground for reducing the damages.

CHANNELL, B. The learned judge left certain questions to the jury. The findings, which are not impeached, taken in connection with the questions, appear to me to leave no room for the argument attempted to be raised on the part of the defendant. Rule discharged.

DECLARATION that the plaintiff was possessed of certain land, and the land received lateral support from certain land adjoining thereto; and the defendants dug and made on this adjoining land an excavation or well near to the land of the plaintiff, and the defendants thereby, and for want of keeping and continuing the sides of the well shored up, or otherwise preventing the consequences hereinafter mentioned, wrongfully deprived the land of the plaintiff of its support, whereby the land of the plaintiff sank and gave way, and divers walls, buildings, and premises of the plaintiff on the land sank and were damaged, whereby the plaintiff was put to great expense, &c.

Pleas, Not guilty, and Not possessed.

was

At the trial before Erle, C. J., at the last Surrey Spring Assizes, it proved that the plaintiff was possessed of a piece of land on which a building had been recently erected, and that the defendants, who neighboring landowners, dug a well on their own land near to that of the plaintiff, and afterwards filled up the well with such loose earth that the ground round it sank, and the plaintiff's building was injured, causing damage to the amount of £15.

were

The jury found, in answer to questions by the Chief Justice, that the land of the plaintiff would have sunk if there had been no building on it, and that some particles of sand from it would have fallen on to the defendants' property, but that the plaintiff would have suffered no

appreciable damage.

A verdict was entered for the defendants, with leave to the plaintiff to move to enter the verdict for such sum under £15 as the court should direct, on the ground that the facts proved at the trial entitled the plaintiff to a verdict without proof of any pecuniary damage.

Robinson, Serjt., having obtained a rule nisi, pursuant to the leave reserved,

Joyce showed cause.

Robinson, Serjt., and Joseph Sharpe, in support of the rule.

ERLE, C. J. I am of opinion that this rule should be discharged. There is no doubt that a right of action accrues whenever a person interferes with his neighbor's rights, as, for example, by stepping on his land, or, as in the case of Ashby v. White, 1 Sm. L. C. 5th ed. 216, interfering with his right to vote, and this though no actual damage may result. But for a man to dig a hole in his own land is in itself a perfectly lawful act of ownership, and it only becomes a wrong if it injures his neighbor; and since it is the injury itself which gives rise to the right of action, there can be no right of action unless the damage is of an appreciable amount. A person may build a chimney in front of your drawing-room, and the smoke from it may annoy you, or he may carry on a trade next door to your house the noise of which may be inconvenient; but unless the smoke or noise be such as to do you appreciable damage, you have no right of action against him for what is in itself a lawful act. In the case of St. Helen's Smelting Company v. Tipping, 11 H. L. C. 642; 35 L. J. (Q. B.) 66, in which the defendant had set up some chemical works, the House of Lords held that, if the noxious vapors did not cause material damage to the plaintiff, he had no cause of action. In the present case the digging the well and filling it up again were in themselves perfectly lawful acts, and the jury have found that they did no sensible damage to the plaintiff, and he has therefore no right of action.

BYLES, J. I am of the same opinion. In actions for a trespass the trespass itself is a sufficient cause of action. But in actions for indirect injuries like the present, the judgment of the House of Lords in Bonomi v. Backhouse, 9 H. L. C. 503; 34 L. J. (Q. B.) 181, shows that there is no cause of action if there be no damage, and I cannot distinguish between no appreciable damage to the land in its natural state and no damage at all.

MONTAGUE SMITH, J. I am of the same opinion. The mere subsidence of the surface of the soil is not necessarily an injury, and we are bound by the verdict of the jury, who found that in fact no appreciable damage would have occurred if these new buildings had not been on the land. Rule discharged.

BIRMINGHAM v. ALLEN.

CHANCERY DIVISION AND COURT OF APPEAL. 1877.

[Reported L. R. 6 Ch. Div. 284.]

THIS was an action by the Corporation of Birmingham, who were the owners of gasworks called the Swan Village Gasworks, to restrain the defendants, T. H. Allen and T. E. Holden, who were proprietors of Swan Farm Colliery, in the neighborhood of the gasworks, from working their coal in such a manner as to cause subsidence of the surface of the plaintiffs' land.

The plaintiffs purchased the gasworks from the Birmingham and Staffordshire Gaslight Company in the year 1875.

The gas company purchased the land on which the works were erected, together with the minerals under the same, in the year 1824. They afterwards purchased the minerals under various pieces of land adjoining their property, for the purpose of preventing the surface of their own land from being shaken or disturbed. Among others they purchased, in 1872, the minerals under a piece of land belonging to Messrs. Pershore & Gregory which adjoined the western boundary of the gasworks. The defendants' colliery lay to the west of this piece of land, to which it adjoined, so that the piece of land lay between the properties of the plaintiffs and the defendants.

The seams of coal under the district were as follows: The Brooch Coal, 3 ft. 9 in. thick, about 90 yards from the surface.

The Thick Coal, 28 ft. 9 in. thick, about 156 yards from the surface. The Heathen Coal, 3 ft. 6 in. thick, about 156 yards from the

surface.

The New Mine Coal, 5 ft. 6 in. thick, about 185 yards from the

surface.

The Thick Coal under the piece of land purchased by the gas company in 1872 had been worked out more than thirty years before they purchased it, and the superincumbent earth was propped by pillars in the usual way.

The Thick Coal under the gasworks had not been worked out when the company purchased the site in 1824; but in the year 1834 they granted the Thick Coal under a small portion of the surface to Messrs. Bagnall & Haynes, who worked it out. Some of the area thus granted was exactly under the retorts of the gas company.

The defendants were now engaged in working the lowest vein, or New Mine Coal, under their land. They worked from west to east, and in doing so approached within a few yards of the western boun

dary of land purchased by the gas company in 1872.

The plaintiff's claimed that the working of the New Mine Coal by the

VOL. II.

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defendants had already caused a subsidence of the surface of their land and the buildings thereon erected, and would, if persisted in, cause them great injury, and they brought this action for an injunction accordingly.

The defendants pleaded that if any subsidence of the plaintiffs' land had taken place, it had been caused partly by the excavations of Thick Coal under the plaintiffs' own land by the lessees of the gas company, and partly by the erection of buildings within the last twenty years over such excavated portions; and they denied that they were under any liability to the plaintiffs in respect of any injury they had sustained.

Both sides went into evidence at great length. The trial came on before the Master of the Rolls on the 15th of March, 1877, and witnesses were examined on both sides.

The result of the evidence is stated in the judgment of the Master of the Rolls.

Chitty, Q. C., and Beale, for the plaintiffs.

Southgate, Q. C., Ince, Q. C., and Speed, for the defendants.

JESSEL, M. R. I am of opinion that the plaintiffs' case entirely fails. We have had a most careful and, I think, a most exhaustive investigation into the facts, and, as far as I am concerned, I have no doubt upon any of the facts necessary to be decided.

I think it is plain that if the land adjoining the plaintiffs' land had not been undermined, the defendants might work the New Mine seam as well as the Thick Coal seam up to their boundary. [His Lordship then referred to the evidence on this point.]

Now, looking to this evidence, and considering that it is for the plaintiffs to prove their case, I am of opinion that it is proved satisfactorily that, supposing the land between the plaintiffs' and the defendants' land had remained in its natural state, if the defendants' workings should be prosecuted up to the boundary of their property, they would not, as far as the New Mine is concerned, cause any injury whatever to the plaintiffs' works.

Then there is a second question, which is a question of fact I think I ought to give my opinion upon. Has the working of the defendants' New Mine at all actually injured the plaintiffs' buildings? I am clear it has not. [His Lordship then considered the evidence on this part of the case, and considered that there was no evidence of injury already received.]

Then comes the question, Will it occasion injury? As to that, the evidence is very conflicting. Mr. Cooksey puts the safe distance as 100 yards, and although there is a little variation, the plaintiffs' experts substantially agree in putting the safe distance at 100 yards, or fiftyfive yards from the defendants' boundary. The defendants' four experts also substantially agree, and they put it at sixty yards, or fifteen. yards from the defendants' boundary.

Here, again, it is for the plaintiffs to make out their case; and it seems to me to be mere surmise on both sides. However, I must say, if it were necessary to decide the case on that ground, that it is not

proved to my satisfaction that more than sixty yards is required, that is, more than fifteen yards from the boundary.

[His Lordship, after considering certain subordinate questions of fact, continued]

I now come to a point of very great difficulty indeed, on which the evidence is in a very singular condition. The plaintiffs themselves, or their predecessors in title, had allowed a portion of their land to be undermined, that is, had allowed coal to be extracted from under that land, and the question was, whether the extraction of that coal in any way interfered with the support of the retort houses. Now the odd part of the matter is, that the experts for the plaintiffs said that it would interfere with the support, and increase subsidence; and the experts of the defendants said it would not. Under these circumstances, I think it is only fair to say that, as against the plaintiffs, they cannot reject the evidence of their own experts, and therefore I must consider that it does affect it to some extent, but, considering the evidence of the defendants' experts, not to a material extent. That is the way that

matter appears to me.

Now, having so far dealt with the facts, let me consider the law. As I understand, the law was settled by the House of Lords, confirming the decision of the Court of Exchequer Chamber in the case of Backhouse v. Bonomi, 9 H. L. C. 503, that every landowner in the kingdom has a right to the support of his land in its natural state. It is not an easement: it is a right of property. That being so, if the plaintiffs' land had been in its natural state, no doubt the defendants must not do anything to let that land slip, or go down, or subside. If they were doing an act which it could be proved to me by satisfactory expert evidence would necessarily have that effect, I have no doubt this court would interfere by injunction on the ground upon which it always interferes, namely, to prevent irreparable damage when the damage is only Of course they must have a much clearer and much stronger case to call for the interference of this court by injunction where the damage is merely threatened and no damage has actually occurred, than when some damage has actually occurred, because in the one case you have no facts to go by, but only opinion, and in the other case you have actual facts to go by. If some damage has occurred, it makes it manifest and certain that further damage will occur by reason of the prosecution of the works.

threatened.

Now in this case, if it stands at all, it may well stand merely on opinion evidence, which would be sufficient ground for interference if all the experts agreed and the court were satisfied that damage had occurred; and I think when I compare the evidence of these various experts, I must take it for this purpose as proved that if the defendants work within fifteen yards of their boundary, and in their New Mine Coal, damage, and serious damage, will accrue to the plaintiffs' buildings. But the question I have to decide is whether in law that entitles them injunction. I think it does not. In this case it is true the plain

to an