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held that such an allegation was unnecessary to raise the question, whether the company were bound to leave props to support the surface ? “If,” said Lord Campbell, “the easement which the plaintiff claims exists, it does not arise from any special grant or reservation, but is of common right-created by the law---so that we are bound to take notice of its existence,
We have, therefore, to consider whether, when the surface of land (by which is here meant the soil lying over the minerals) belongs to one man, and the minerals belong to another—no evidence of title appearing to regulate or qualify their rights of enjoyment—the owner of the minerals may remove them without leaving support sufficient to maintain the surface in its natural state. This case is entirely relieved from the consideration, how far the rights and liabilities of the owners of adjoining tenements are affected by the erection of buildings; for the plaintiff claims no greater degree of support for his lands than they must have required and enjoyed since the globe subsisted in its present form. We are of opinion that the owner of the surface, while unincumbered by buildings and in its natural state, is entitled to have it supported by the subjacent mineral strata. Those strata may, of course, be removed by the owner of them, so that a sufficient support for the surface is left; but if the surface subsides, and is injured by the removal of those strata-although, on the supposition that the surface and the minerals belong to the same owner, the operation may not have been conducted negligently, nor contrary to the custom of the country—the owner of the surface may maintain an 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. 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 level. 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 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 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 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 Queen'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 that purpose, 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 minerals, 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 sufficient 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 sufficient 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 is, he only reserves to himself so much of the nines 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 if 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 pot he was bound to leave support for an additional superiucumbent 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
of the company
(Cranworth) in the case of The Caledonian Railway v. Sprot (2 Macqueen's H. L. Rep., 449). In that case, an owner conveyed to a railway company a portion of his land required for the line
The conveyance was marle expressly for the purpose of the land conveyed being used as a railway; but the mines under the land conveyed, and the right to win the minerals, were res-rved 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 affording proper support. The same principle applies to the case of ailjacent 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 marble, 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 of what is retained Again, if the surface of the land granied is merely a common meadow or a ploughed field, the necessity tor support will probably be much less than if it were covered with buildings or trees. And it must further be 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 to fall. If, inderd, the grant is made expressly to enable the grantee to build bis 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 grant “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 primâ 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 primâ facie rights of adjoining owners may be similarly varied. Until very lately, however, great doubts were entertained whether the prima 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., 701), 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 deprire 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 primâ facie rights could be varied. The following were the circumstances under which the case arose :—The plaintiff claiming support for his land and the buildings thereon, alleged that the defendant improperly worked the underlying minerals, and did not leave sufficient support. The defendant confessed to working the minerals without leaving such support, but alleged that he was justified 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 1810, 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—“ Prima facie, the owner of the surface is entitled to support from the subjacent strata ; and, if the owner