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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 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 of 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 difliculty 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 have parted with the right to that support for the surface by the minerals, which it had ever before enjoyed.”
The doctrine that the owner of the surface is entitled, as of common right, to support from the subjacent strata, was adhered to in Rowbotham v. Wilson, as well by the Court of Queen’s Bench as by the Judges in the Exchequer Chamber. The right, however, was treated in the Q,ueen’s Bench as an easement; but
the Judges in the Exchequer Chamber appear to have considered,
that the right to subjacent as well as to adjacent support was a common-law right, and not an easement at all.
The right to the lateral as well as to the vertical support of the surface of land, may be sustained also on another ground besides that of the common-law right.‘ Thus, where an owner conveys a part of his land and retains the residue, or conveys the whole of the surface and retains the underlying minerals, the effect of his conveyance is to include a right to reasonable adjacent or subjacent support, the degree of which is regulated either by the deed of conveyance itself, or by what appears to have been the clear intention of the parties at the time of the grant.
It is laid down by Lord Campbell in Humphries v. Brogden (12 Q. B., 744), that “if the owner of two adjoining closes con
1 See the judgment of the Court of Exchequer Chamber in Bonomi v. Backhouse (28 L. J. Q. B., 380-)
veys away one of them, the alienee, without any grant for thatpurpose, is entitled to the lateral support of the other close the very instant when the conveyance is executed.”
Harris v. Ryding (5 M. and W., 60) is a case in which the question arose as to vertical support. In that case, an owner of land, and of the mines under the surface, granted away the land, excepting out of the grant the mines, and reserving a power of entry upon the surface of the land, in order to do such acts as might be necessary for the purpose of winning the minernls, he making compensation for any damage he might do. After the grant was made, certain buildings were erected on the surface of the land. The plaintiff, who claimed through the grantee, alleged that the defendant, who claimed through the grantor, improperly, and without leaving any suflicient support, worked the mines so as to damage the surface and buildings in question. The defendant did not, in his plea, allege that he had left suflicient support to sustain the land in the state it was in at the time of grant, but alleged that “the supposed improper working was in the getting and carrying away by the defendant of such mines, without leaving support for the messnages and buildings so built and erected on the said land, and not otherwise.” The court held that this plea was bad. Parke B., in the course of his judgment, said :— “ It is clearly the meaning and intention of the grantor, that the. surface shall be fully and beneficially held and enjoyed by the grantee, he reserving to himself all the mines, and veins of coal and iron ore below. By reasonable intendment, therefore, the grantor can be entitled, under the reservation, only to so much of the mines below as is consistent with the enjoyment of the surface, according to the true intent of the parties to the deed; that 1s, he only reserves to himself so much of the mines and minerals as could be got, leaving a reasonable support to the surface. It never could have been in contemplation 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; he would be acting in derogation of his grant 1f he were to take away the whole of the coal below, he having granted the use of the surface to the grantee. If that is the true construction of the reservation and power, the defendant ought to have stated in his plea that he took the coal he did take, leaving a_ reasonable support for the surface in the state it was at the time of the grant. It becomes unnecessary to inquire whether or not he was bound to leave support tor an additional superincumbent weight upon the surface; probably he would not be, but this plea is clearly bad.”
_ The principles applicable to the mode of acquiring by grant a. right to support, were fully laid down by the Lord Chancellor (Cranworth) in the case of The Caledonian Railway v. Sprot (2 Macqueen's H. L. Rep., 4:49). In that case, an owner, conveyed to a railway company a. portion of his land required for the line of the company The conveyance was made expressly for the purpose of the land conveyed being used as a railway; but the mines under the land conveyed, and the tight to win the minerals, were reserved to the vendor. “ If," said the Lord Chancellor, “the owner of a house were to convey the upper story to a purchaser, reserving all below the upper story, such purchaser would, on general principles, have a right to prevent the owner of the lower stories from interfering with the walls and beams upon which the upper story rests, so as to prevent them from afibrdiug proper support. The same principle applies to the case of adjacent support ; so far, at all events, as to prevent a person who has granted a part of his land, from so dealing with that which he retains, as to cause that which he has granted to sink or fail. How far such adjacent support must extend, is a question which in each particular case will depend on its own special circumstances. If the line dividing that which is granted from that which is retained, traverses a quarry of hard stone or n-arble, it may be that no adjacent support at all is necessary. If, on the other hand, it traverses a bed of sand or a marsh, or a loose gravelly soil, it may be that a considerable breadth of support is necessary to prevent the land granted from falling away upon the soil .ofwhat is retained. Again, if the surface of the land granted is merely a common meadow or a ploughed field, the Ile(‘esslly tor support will probably be much less than if it were covered with buildings or trees. And it must further he observed, that all which a grantor can reasonably be considered to grant or warrant, is such a measure of support subjacent and adjacent as is necessary for the land in its condition at the time of the grant, or in the state for the purpose of putting it into which the grant is made. Thus, if I grant a meadow to another, retaining both the minerals under it and also the adjoining lands, I am bound so to work my minerals, and to dig my adjoining lands, as not to cause the meadow to sink or to fall over. But it I do this, and the grantee thinks fit to build a. house on the edge of the land he has acquired, he cannot complain of my workings or diggings if, by reason of the additional weight he has put on the land, they cause his house toifall. It, indeed, the grant is made expressly to enable the grantee to build his house on the land granted, then there is an implied warranty of support. subjacent and adjacent, as if the house had already existed.” The Lord Chancellor held, that by the conveyance the company acquired by giant “an absolute right to the surface of the land, and by implication a. further right to such subjacent and adjacent support as was necessary, taking into account the purpose to which the land was to be put;” and further, that the grantor “cannot, by reason of his having reserved the mines, derogate from his own conveyance by removing that support. In reserving mines, he must be understood to have reserved them so far only as he could work them consistently with the grant he had made to the company."
It seems now to be settled, that the primzi facie rights and obligations of the owner of the soil and the owner of the substrata may be varied by agreement so as to bind the respective owners for the time being, and we presume (although there is no direct decision on the point) that, by analogy, the primd facie rights of adjoining owners may be similarly varied. Until very lately, however, great doubts were entertained whether the primd facie rights to support could be given up so as to bind the land, and even now all the judges are not agreed upon the point. In Hilton v. Lord Granville, (5 Q. B , 7 Ol), Lord Denman expressed an opinion, that a. claim destructive of the subject-matter of a grant cannot be set up by any usage ; and that, even if the grant could be produced in specie, reserving a right to deprive the grantee of the enjoyment of the thing granted, such a clause must be rejected as repugnant and absurd. _
But in Smart v. Morton (5 El & Bl., 30), it seems to have been assumed by the court that these primal facie rights could be varied. The following were the circumstances under which the case arose :—The plaintiti claiming support for his land and the buildings thereon, alleged that the defendant improperly worked the underlying minerals, and did not leave sufiicient support. The defendant confessed to working the minerals without leaving such support, but alleged that he was ustified in so doing, under a deed dated 29th Dec., 1671, whereby the surface was granted away, but the underlying minerals were reserved to the grantor through whom the defendant claimed. By this deed power was reserved to work and win the minerals in any part of the premises, the grantor, his heirs, or assigns, paying certain damages to be estimated as in the deed is mentioned for the loss which the grantee, his heirs, or assigns should suffer thereby. The defendant was willing to pay damages in accordance with this deed. It was proved at the trial that the practice formerly was to work out the minerals so as to leave pillars for the support of the surface ; but that, since 18 l0, the practice had been to work out all the minerals, paying compensation for subsidence: the practice of working out under buildings, however, was disputed. In this case the defendant had worked out under buildings as well as surface. Lord Campbell, who delivered the judgment of the court, said—“1’rim(i facie, the owner of the surface is entitled to support from the snbjacent strata; and, if the owner
of the minerals works them, it is his duty to leave sufiicient support for the surface in its natural state. But the prime?
facie rights and obligations of the owner of the surface and
of the minerals, may be varied by the production of titledeeds or by other evidence. Upon the present record we are to assume that the rights and obligations of the plaintiff and of the defendant, which would exist as of common right, are only varied by the deed of the 29th December, 1671, severing the surface from the minerals, and making of them two separate tene~ ments, to be thereafter held under separate titles. . . But the simple reservation of the minerals would not deprive the grantee of the surface of the right to support from the minerals ; and the defendant must rely upon the special powers reserved as to the working of the minerals. Upon the severance of the surface and the minerals, a deed might be framed empowering the owner of the minerals to remove the whole of them without leaving support for the surface, compensation being made to the owner of the surface for the damage thereby occasioned to his tenement.” But the court did not consider the deed of 1671 so framed; and moreover thought, that the practice of mining must be taken to be the practice used and approved in the county at the time of the reservation. This case, therefore, did not authoritatively dispose of the point, which again arose in Rowbotham V. Wilson (ubi sup.)
In that case the plaintiff was entitled to the surface of land
' through one Pears, to whom the same had been allotted by certain
commissioners, by their award dated in 1770, and purporting to be made in pursuance of an act of parliament. The defendant was entitled to the mines under the surface through one Howlette, to whom the same had been allotted by the award ; and it was in consequence of the working of these mines that the plaintiff’s soil had subsided. The commissioners, it appear, had no authority under the act to separate the surface from the mines ; but Pears and Howlette were parties to the award, which was executed by Pears but not by Howlette. The primdfacie right of the plaintiff to support was not questioned ; but this right, it was urged on the part of the defendant, had been given up at the time when the surface was allotted by the award. The award contained a clause whereby the several proprietors, parties to the award (who were the only persons interested in the disposal of the land and mines), certified their acceptance of their respective allotments, in manner as the same were allotted to them; and each of them disclaimed all interest, in any of the mines under his allotment, except such mines as were allotted to him. The award also contained a. covenant whereby the parties severally covenanted with .each other, that the mines so allotted should for ever after be held