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by the respective persons to whom the same were assigned, and by them 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 lauds 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 rendered uneven and less commoilious 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 allotments 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 obtained, or in any manner to dig or break the said surface without the like consent.”
It was held ll] the Court of Qneen’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
V the plaintiff's soil. This view was confirmed by a majority of the
judges in the Exchequer Chamber; but Oresswell J. and Watson B. dissented from it. These learned judges were of oninion, that t-he 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 defendant sought to impose on the pl-aintifi"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. Hui/res (6 E. & B., 643; 25 L.J. 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 del'endant’s contention could not be upheld, and that the plaintifls bad 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 clel terre Lease 40 foote ole ceo al A. your erect un mease sear ceo, 4: outer 40 joote al B. pur erect un mease, &; un de cum erect un mease, &: donque lauter fade an cellar in son terre per que le -mure del primer mease acljoynant eschie, que nul action sur le case gist pnr cel ; Et issent ils diont fuit adjudge 7 Jac. in Pigott &' Series case car chescun poet faire le mel' advantage de so .soen- ; mes il semble que te Ley est anterment sifuit ancient more on mease que eschie per tiet _/oder.”
In Wilde v. Minsterley. to which we have already referred, the rule was thus laid down—“ Si A seisie en fee de 1.-opihold terre 2 prozcimo adjungent al terre B, et A erect un novel mese sur son copihold terre, et ascun parte del mese est erect sur Les confines de son terre proxinio ar/jurzgerzt al terre B., si B. apresjode son terre tam prope aljoundation del mese A mes nulparte del terre A per que le foundation del mese et le nzese rnesme decade en le pitt, oncore nul action gist per A cers B pur ceo que ceojuit le fault de A mesme que il edi/ie son mesa tam prope al terre de B; car il per son act ne poet impeclier B a, faier le melior use dc son terre desmesne que it 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,
’ The fact of the land being copyhold makes no difference. See Humphries v. Brogden, ubi sup. '
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,” C., 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 case :— v
“Sir John Slingsbg post action sur le case vers Barnard et Ball et declare que ilfuit seisie et adhuc est seisie d’un meson NUPEB. edificata, &' le defendant Barnard est seisie d'un mese prochein adjoinant; il dc Hall l’auter defendant en fesans d’un Seller desouth le mesa de Barnard efibde tam prochein al foundation del’ mese del' plaintifl‘ que ils undermine son muse, per que un moitie de son mese decade en le Pit avandit sic afiodit’ per le dit Hall. Fuit ore move en arrest que le declaration nest bon per Binge, 1. purceo que le declaration est repugnant so. gue il fuit rt: adhuc est seisitus del’ mese, J9: 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 pm-te soit deject &: ceo passeroit per grant del mese. 2. L’Action est port vers deua: pur efioder d’un Pit per euw, ratione cujus son mese decade en le Pit sic efiodite per un qu-e est repugnant, CUR. semble que ceo est bon pur ceo, zfec.”
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."
M_r. 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 plaintifl"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 difiicult to conceive what difference there can possibly be, between undermining one’s neigl1bour’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. T hornborough (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 not withdraw that support without being liable in damages for any injury that might accrue to the plaintiff thereby.”
In Humphries v. Brogden, Lord Campbell referred to these two cases, and said :—“ Where a house has been supported more than twenty years by land belonging to another proprietor, with his knowledge, and he digs near the foundation of the house, whereby it falls, he is liable to an action at the suit of the owner of the house. Although there may be some difficulty in discovering whence the grant of the easement in respect of the house is to be presumed, as the owner of the adjoining land cannot prevent its being built, and may not be able to disturb the enjoyment of it without the most serious loss or inconvenience to himself, the law favours the preservation of enjoyments acquired by the labour of one man, and acquiesced in by another who has the power to interrupt them ; and as, on the supposition of a grant, the right to light may be gained from not erecting a wall to obstruct it th right to support for a new building erected near the extremity of the owner’s land may be explained on the same principle.”
In Gag/ford v. Nicholle, 9 Exch. 702, Parke B. (p. 708) observed, that the case before the court was not one “in which the plaintiff has the right of the support of the defend-ant’s soil, either by virtue of a twenty years’ occupation, or by reason of a presumed grant, or by a presumed reservation where both houses were originally in the possession of the same owner; for, unless a right of support by some such means can be established, the owner of the soil has no right of action against his neighbour, who causes the damage by the proper exercise of his own right.” This observation would seem to imply that, if either of the cases mentioned could be established, the right of action would arise. Although in this case there happened to be adjoining buildings belonging to the plaintiff and defendant, yet it was not the support of building by building that was claimed, but the support of a, yard wall by the defendants soil. We mention this here, because otherwise it might be thought that Parke B., in his judgment, intimated an opinion that the right to the mutual support of house by house could be claimed by prescription, whereas there is no direct authority for such a proposition.
Assuming that a right to the support of the adjacent land has been obtained by the enjoyment of an ancient house, it appears that a condition is imposed upon the party entitled to such support, that he shall do nothing within the period requisite for conferring an easement which shall have the effect of increasing t.ie burthens imposed upon his neighbour (Gale, 225); and if, by excavating his own soil, or by other acts, the person claiming the easement has weakened the support from his own soil, he has imposed an increased burthen on the land of his neighbour, which