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of the minerals works them, it is his duty to leave sufficient support for the surface in its natural state. But the prima 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 tenements, 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 authori. tatively 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 appears, 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 prima facie 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 by the respective persons to whom the same were assigned, and by ther be worked without any interruption by any other persons parties to the award, or claiming under them respectively, “ who for the time being are, or may be, owner or owners of the surface of the lands under which such mines are situate; and without being subject or liable to any action or actions for damage, on account of working and getting the said mines, for or by reason that the surface of the lands aforesaid may be rendereri uneven and less comino'lious to the occupiers thereof by sinking in hollows, or being otherwise defaced and injured when such mines shall be worked; the said several proprietors, parties to these presents, and interested in the disposal of lands and mines under the circumstances aforesaid, having agreed with each other, and being willing and desirous to accept their respective allotments in their several situations herein before declared, subject to any inconvenience or incumbrance which may arise from the cause aforesaid ; so, nevertheless, as that nothing herein contained shall extend, or be construed to extend, to authorize or enable any of the parties for the time being entitled to the said mines to sink pits in the allotinents under which the same are situate, for the purpose of working the said mines, without the consent of the then owners of the surface of the same allotments previously obtainerl, or in any manner to dig or break the said surface without the like consent.'
It was held in the Court of Queen's Bench, that although the commissioners had no power to make such an award as the one in question ; yet, as Pears was a party to it, he and all persons claiming under him were bound by it, and consequently that the defendant was not liable for damage done by the subsidence of the plaintiff's soil. This view was confirmed by a majority of the judges in the Exchequer Chamber; but Cresswell J. aud Watson B. dissented froin it. These learned judges were of opinion, that the covenant in the award merely imposed a personal obligation on Pears not to sue an obligation that would not run with the land. Watson B. moreover seemed to think, that such a burthen as the d-fendant sought to impose on the plaintiff's land was one which could not be the subject-matter of a grant.
Another point which has lately been settled is, that where an owner of mines is restricted by deed or otherwise from working them in a particular manner, so as not to endanger the support of the surface, the owner of the surface is entitled not only to the protection thus afforded, but also to his common-law right to support. This was decided in the case of Roberts v. Haines (6 E. & B., 643 ; 25 L.J. Q. B., 353; and in error, 7 E. & B., 625; 27 L. J. Q. B., 49), where the owner of certain mines was, by an act of parliament, precluded from working them within a certain distance laterally or perpendicularly from any dwelling-house on the surface. This provision had not been contravened by the defendant; but at the trial the jury found that damage had been done to the plaintiff's houses by the workings of the defendant, and that such injury would have arisen to the land without the superincumbent weight of the houses. The defendant contended that he was not liable by the terms of the act. All the judges, as well in the Queen's Bench as in the Exchequer Chamber, were of opinion that the defendant's contention could not be upheld, and that the plaintiffs nad the common-law right to support as owners of the surface ; and that the provision in the act against working within certain distances was an additional protection, and abso utely prohibited such working under any circumstances; and, even if no injury arose from such working, yet the owner of the mines who so worked them would be a wrongdoer, and might be restrained by injunction.
The right to the support of the foundations of buildings by adjoining land is not a natural right; but it may be acquired in various ways (to which we shall presently refer) as an easement.
The earliest case in which this appears to have been laid down is that of Palmer v. Fleshees, reported in Siderfin vol. i. p. 167, as follows :
“Si jeo esteant seise del terre Lease 40 foote de ceo al A. pur erect un mease sur ceo, & auter 40 foute al B. pur erect un mease, di un de eus erect un mease, & donque lauter fode un cellar in son terre per que le mure del primer mease adjoynant eschie, que nul action sur le case gist pur cel; Et issent ils diont fuit adjudge 7 Jac. in Pigott & Suries case car chescun poet faire le mel advantage de sa soen; mes il semble que le Ley est auterment si fuit ancient mure ou mease que eschie per
tiei foder.” In Wilde v. Minsterley, to which we have already reterred, the rule was thus laid down—“Si A seisie en fee de copihold terre ? proximo adjungent al terre B, et A erect un novel mese sur son coprhold terre, et ascun parte del mese est erect sur les confines de son terre proximo alljungent al terre B., si B. apres fode son terre tam prope al foundation del mese A mes nul parte del terre
le foundation del mese et le mese mesme decade en le pitt, oncore nul action gist per A vers B pur ceo que ceo fuit le fault de A mesme que il edifie son mese tam prope al terre de B; car il per son act ne poet impedier B a faier le melior use de son terre desmesne que il poet.'
Here, it will be observed, the law was not, as in the former case, said to be different as regards an ancient messuage ; but, nevertheless, the ruling of the court applies only to a modern building.
2 The fact of the land being copyhold makes no difference. See Humphries v. Brogden, ubi sup.
A per que
Comyns, C.B., refers to these two cases, and says that an action upon the case does not lie if a man build a house and make cellars upon his soil, whereby a house newly built, in an adjoining soil, fall down (Dig. " Action upon the Case for a Nuisance,” Č., vol. i. p. 233).
The case of Slingsby v. Barnard (1 Rolle Rep. 430) seems, however, to show that the law on this question was not clearly settled in those early days. The following is the report of the
“Sir John Slingsby post action sur le case vers Barnard et Ball et declare que il fuit seisie et adhuc est seisie d'un meson NUPER edificata, di le defendant Barnard est seisie d'un mese prochein adjoinant; il & Hall l'auter defendant en fesans d'un Seller desouth le mese de Barnard effode tam prochein al foundation del mese del plaintiff que ils undermine son mese, per que un moitie de son mese decade en le Pit avandit sic affodit per le dit Hall. Fuit ore move en arrest que le declaration nest bon per Binge, 1. purceo que le declaration est repugnant sc. que il fuit & adhuc est seisitus del mese, & apres il dit que parte del mese est deject que est le cause de son action ; CUR. ceo est assets bon pur ceo que ceo que remaine est un mese coment que parte soit deject & ceo passeroit per grant del mese. 2. L'Action est port vers deux pur effoder d'un Pit per eux, ratione cujus son mese decade enole Pit sic effodite per un que est repugnant, CUR. semble que ceo est bon pur ceo, &c."
In 2 Vin. Abr. 14 pl. 49 (Actions. Case n. c.), the case is thus given :-"A was seised of a house newly built, and B was seised of a house next adjoining; and B in digging a cellar so near the house of A that he undermined it, by reason whereof part of A's house fell into the hole so digged, action on the case lies for A. Adjudged."
Mr. Gale has endeavoured, but we think unsuccessfully, to reconcile these three cases. He says that in the third case the action was brought, not for the withdrawal of support, but for digging so near the foundation of the plaintiff's house as to undermine it, and that, in the motion in arrest of judgment, there is no allusion to any claim to support, (Gale, 221, 1st ed.) But it is difficult to conceive what difference there can possibly be, between undermining one's neighbour's house by digging in one's own soil, and withdrawing support by such digging; and if Lord Campbell's reasoning on the omission of any mention of a right to support in the declaration in the Earl of Lonsdale v. Littledale, be applied to the present case, it may be argued that the right to support must have been a recognized right, otherwise the omission of any mention of it would most probably have been relied on, rather than the subtle objections which, according to
the report, were made to the declaration. This case, then, can scarcely be reconciled with the other two; but in modern cases it has been almost entirely ignored, and those in Siderfin and Rolle's Abr. have been followed.
Thus, in Wyatt v. Harrison (3 B. & Ad., 871), Lord Tenterden after observing that the question in the case then before the court resolved itself to this, namely; whether, if a person builds to the utmost extremity of his own land, and the owner of the adjoining land digs the ground there, so as to remove some part of the soil which formed the support of the building so erected, an action lies for the injury thereby occasioned, said—“Whatever the law might be, if the damage complained of were in respect of an ancient messuage possessed by the plaintiff at the extremity of his own land, which circumstance of antiquity might imply the consent of the adjoining proprietor at a former time to the erection of a building in that situation; it is enough to say in this case, that the building is not alleged to be ancient, but may, as far as appears from the declaration, have been recently erected; and if so, then, according to the authorities, the plaintiff is not entitled to recover.
If I have laid an additional weight upon my land, it does not follow that my neighbour is to be deprived of the right of digging his own ground, because mine will then become incapable of supporting the artificial weight which I have laid upon it; and this is consistent with 2 Rolle, Ab."
We shall now refer to the cases which indicate the various modes of acquiring a right to the support of the foundations of a building by the adjoining soil, premising that the character of the right, when once accrued, is the same as that of the right to the support of the surface of land, (Bonomi v. Backhouse, 28 L. J. Q. B., 380.)
In Stansell v. Jollard (1 Selw. N. P. 69, 11th ed. 457) Lord Ellenborough is said to have held, that “where a man had built to the extremity of his soil, and had enjoyed his building above twenty years, then, upon analogy to the rule as to lights, &c., he acquired a right to support, or, as it were, of leaning to his neighbour's soil, so that his neighbour could not dig so near as to remove the support, &c.; but that it was otherwise of a house, &c., newly built.
And in Hide v. Thornborough (2 Car. & K., 250), where plaintiff and defendant were owners of adjoining lands, and on the plaintiff's land a house had stood for twenty years, which fell in consequence of B. digging for building purposes on his own land, Parke B. (in summing up) said :-“ If the plaintiff has enjoyed the support of the land of the defendant for twenty years to keep up his house, and both parties knew of that support, the plaintiff had a right to it as an easement, and the defendant could