Page images
[ocr errors][ocr errors][ocr errors]

tiffs or their predecessors acquired the mineral area, and acquired some of the land after the Thick Coal had been worked out and not before ; but for the present purpose I lay out of consideration the fact of their ownership of anything, and I will treat the case as if the portions under which they possess the minerals, and the land so subsequently acquired, did not belong to them, and it appears as the result of the evidence that if that Thick Coal had not been extracted from under these portions of land, the intended operations of the defendants would certainly not cause any substantial injury.

But it is said that, inasmuch as these operations have occurred in what I will call the intervening land, and have thereby weakened the support, it will entitle the plaintiffs to prevent the owners of the land on the other side of this intervening land from working their mines in the way they could otherwise have worked them. But the first question one asks is, Why? Why should the act of the intervening owner, that is, the owner of the intermediate land, deprive men of their rights to their mines? It strikes one at once as a most extraordinary proposition. The act of the intervening owner for this purpose is rightful as regards the mine-owners whose mines are asked to be confiscated, for that is what it comes to. If they cannot work them they are confiscated. The plaintiffs ask for the confiscation of their property, not because they have done any wrong, for they have done no wrong - not because the intervening owner has done any wrong, for he only worked his mines, and when he worked them he occasioned no injury to the person who owned the property on the other side ; but it is said that inasmuch as he has taken out his coal first, the clefendants are deprived of the right of getting their mines. I say it is a startling proposition, and one which appears to me so unfounded in reason that I should be


loth indeed to believe it was founded in law.

Now, what is the right of the adjoining owner? As I said before, it is to the support of his land in its natural state - support by whom? The judges have said, “ Support by his neighbor.” What does that mean? Who is his neighbor? It was contended that all the landowners in England, however distant, were neighbors for this purpose if their operations in any remote degree injured the land. But surely that cannot be the meaning of it. The neighboring landowner to me for this purpose must be the owner of that portion of land, whether a wider or narrower strip of land, the existence of which in its natural state is necessary for the support of my land. As long as that land remains in its natural state, and it supports my land, I have no rights beyond it, and therefore it seems to me that he is my neighbor for this purpose. There might be land of so solid a character, consisting of solid stone, that a foot of it would be enough to support the land. There might be other land so friable and of such an unsolid character that you would want a quarter of a mile of it. But whatever it is, as long as you have got enough land on your boundary, which left untouched will support your land, you have got your neighbor's land whose support you are entitled to. Beyond that it would appear to me you have no rights.

Well, that being so, it is clear upon the evidence that the intervening portions of land between the boundary of the plaintiffs' and the boundary of the defendants' land was sufficient in its natural state for the support of the plaintiffs' building. Therefore it appears to me that the plaintiffs have no rights as against the landowners on the other side of that intervening space, and that they acquire no rights whatever the owner of the intervening land may have done ; and, if the act of the intervening owner has been such as to take away the support to which the first landowner who complains is entitled, then, for whatever damage occurs from the act which he bas done, the first owner may have an action, but an action against the intervening owner, not an action against the owner on the other side ; and it appears to me that it would be really a most extraordinary result that the man upon whom no responsibility whatever originally rested, who was under no liability whatever to support the plaintiffs' land, should have that liability thrown upon him without any default of his own, without any

misconduct or any misfeasance on his part. I cannot believe that any such law exists or ever will exist. It appears to me, therefore, that the plaintiffs are not entitled to damages for the acts of the defendants, and that the only order I ought to make is to dismiss the action with costs.

From this decision the plaintiffs appealed. It was admitted on the appeal that if the land lying between the plaintiffs' and defendants' land had remained in its natural condition, the present works of the defendants would not cause any injury to the surface of the plaintiffs' land; but that in its present condition the defendants could not work nearer than fifteen yards to their boundary without endangering the surface of the plaintiff's' land. It was also admitted that the support of the surface on which the retort houses were built was not appreciably diminished by the works of the plaintiffs' predecessors in title. The case came before the Court of Appeal on the 26th of June, 1877. JAMES, L. J. I am of opinion that the judgment of the Master of the Rolls ought to be affirmed. It has been conceded in the course of the argument that this is, at all events, in fact, whatever it is in principle, an extension of the liability of mine-owners beyond anything for which there is an express authority in any decided case, that is to say, to a case in which the owner of the mines is not the adjoining owner de facto to

person whose property is alleged to have been injured ; and it is also conceded for the purposes of the argument, and upon the facts of tle case, that if the whole of the intervening land, to whomsoever it

or may belong now, had been left in a state of nature, there would have been in that state of nature a sufficient support for the land of the plaintiffs so as not to have imposed any burden upon the defendants, or to have caused what the Master of the Rolls has called a confiscation of the defendants' mineral property.

had belonged

I agree with the Master of the Rolls that it seems a very startling thing to say that a man who has got a property in valuable mines can be deprived of those valuable mines because some one else between him and somebody else, a third person, has been doing something with his property. Whether you call it an easement or a natural right incident to property, or a right of property, it seems to me that those are only different modes of expressing the origin of the right, and do not express any difference in the right itself. Whatever it be, there must be, whether you use those terms or not, the idea and the substance of a dominant and servient tenement; and it does seem to me rather startling to find that the servient tenement can have its servitude or obligation increased by the act of the owner of the dominant tenement, or by the act of a third person intervening between the owners of the dominant and servient tenements. In all the cases the terms “ adjacent,” “ neighboring," and " neighbor” have been used, and I think that not immaterial. It has always been considered as the right of the adjacent owner, or the right of a subjacent owner; it has alalways been considered as the right of a man against his neighbor. These are the terms which are always expressed in all the cases. As the Master of the Rolls in this case has pointed out, it does not necessarily apply to a case where the adjacent owner is the owner of a mere strip of land not affording support; and he has, therefore, endeavored to define, and I think he has succeeded in defining, what adjacency and neighborhood mean in these cases. He has said, using a very felicitous expression, that that is the adjacent land, that is the neighboring property, wbich in extent would in the natural state of things have afforded the requisite support to the dominant tenement. I see no reason to dissent from that; there certainly is no authority which would entitle me to dissent from that proposition, and I cannot, upon principle, find any reason for extending the liability to an owner of some land beyond the zone which is so described. It appears to me really that if that were not so, and if the thing were to be determined exactly as the thing stands, that the moment the alleged damage is done, or the alleged damage is apprehended, there is no distinction in principle whether the intermediate acts which have changed the natural position of the properties are due to the plaintiff himself or to somebody else, because if he has lawfully worked his mines, he would say, “ I have done no wrong; I have done nothing that I was not lawfully entitled to do. I have worked out my mines under my own land as far as I might lawfully do so, and having done that I have now a cavity under my land, and I now warn you, my neighbor, that you must not follow my example and work your mines, because if you work your mines in addition to my working my mines you will let down my house or the surface from which I have removed my support,” —thus throwing it entirely upon him. It seems to me that would be included in the result if it were to be tried at the time the thing was done; and that is exactly what we have authority against. Because in the case in the Court of Exchequer, Partridge v. Scott, 3 M. & W. 220, as it appears to me, we have a direct authority for saying that where a man has himself diminished the subjacent support of his own land, he has no right of action or complaint against his neighbor whose acts by reason of that previous weakening have caused subsidence of the plaintiffs' soil. That we have authority for. Upon the same principle, it appears to me to follow, as I have pointed out, that if somebody, not the plaintiff or the defendant, has intervened and destroyed that which was the natural and legitimate support of the plaintiffs' property, that is to say, that portion of the neighboring land which in a state of nature did exist for the purposes of support, no further consequence would arise to the prejudice of the owner of the further piece of land than would have arisen in the case of the plaintiff doing it himself.

I am of opinion, therefore, that the Master of the Rolls' judgment is right, and must be sustained, and that the appeal must be dismissed, with costs.

BAGGALLAY, L. J. This appeal has been argued, and I think it has been conveniently argued, upon certain admissions or assumptions which limit the scope of the pleadings. According to the pleadings, the plaintiffs' land consists of five several properties adjacent to each other, colored with five different colors, which need not be particularly specified, and an injunction is asked to restrain working by the defendants in such a way as to injure, by subsidence or otherwise, any portion of those five several lands, but the question has now been limited to the consideration of the land on which the retort houses are erected. It has been agreed also that certain conclusions which the Master of the Rolls arrived at upon the facts of the case shall, for the purpose of the argument, be treated as established. One of those conclusions of fact was that if the land intervening between the plaintiffs’ land in question and the land of the defendants had remained in its natural state, the defendants might have worked up to their boundary without doing any injury at all to the land. Another of the conclusions of fact was, that assuming the lands to be as they are at present, then the defendants cannot work nearer than within fifteen yards of the mineral boundary between the two properties without causing serious damage to the plaintiffs' buildings; and a third admission is this and I think it is an important one that the support of the retort houses has not been in any way appreciably diminished by the working of the plaintiffs themselves under the land on which they are erected.

In this view of the case the suggested injury is, that by the working of the coal measures of the defendants, and by means of the primary subsidence or falling in of the lands between the defendants' land and the plaintiffs' land, which lands are also, for the purpose of argument, assumed to have belonged to third parties, injury will be occasioned also to the plaintiffs' land. Now it appears to me that when once you have arrived at the conclusions and admissions of fact to which I have just alluded, you have a case on which there can be no possible question. It seems to me to be quite contrary to all principle and authority to say that, by reason of the working by the defendants upon lands which are not adjoining lands to the land of the plaintiffs, and which, if the intermediate lands had remained in their natural state, would not have afforded support to the plaintiffs' land, there can be a right of action against the defendants. It appears to me that in the various cases, and they were all cited, I think, and discussed in the case of Bower v. Peate, 1 Q. B. D. 321, the very essence of the thing is that the land should be adjacent; that is, adjacent in the sense defined by the Master of the Rolls.

BRETT, L. J. It appears to me strange, but I believe it to be the truth, that there is no authority on the particular point that we have to determine, and that it has therefore to be determined for the first time in this case.

I assume for the purpose of this case that the land lying intermediate between the defendants' land and that which the plaintiff's desire to protect is in the hands of other persons than the plaintiff's or the defendants, and I assume that if the defendants work under their own lands they will cause damage to the plaintiffs' lands, and I further assume that if the defendants should not work under their land that no damage will occur to the plaintiffs' land, so that in one sense it will be the act of the defendants which will cause the damage to the plaintiffs? land. But then, as against that, I take the finding to be that if there had been no working under the intermediate land, working under the defendants' land would not damage the plaintiffs' land, and it is upon that last finding that I think this case must be determined, because upon that last finding the defendants' land is brought within this proposition, that it is land which in its natural state, and in the natural state of the plaintiffs' land and of the intermediate land, would not be necessary as a support to the plaintiffs' land at all. It seems to me to follow from that that if the defendants worked in their own land up to the boundary when there were no workings in either the plaintiffs' land or the intermediate land, their workings would have no effect whatever upon the plaintiffs' land. They would have a perfect right, therefore, under these circumstances, to work up to the limit of their own land. Then can that right of theirs which they have under those circumstances be diminished by any act done either by the plaintiffs or by any one for whose acts the defendants are not otherwise responsible? It seems to me that their right cannot be so diminished. As for their right being diminished by any act of the plaintiffs themselves, I think the reasoning of Baron Alderson in Partridge v. Scott, 3 M. & W. 220, is conclusive to show that the defendants' right could not be diminished under such circumstances by reason of anything done by the plaintiffs themselves on their own land. Well, if that be the case with regard to the plaintiffs, and we have authority so far, we have only to go the additional step of saying that the defendants' right shall not be diminished by the act of the intermediate owner that is, the act of a person for whose action they are otherwise not at all responsible.

« PreviousContinue »