act of acquisition on his own part. But this natural right to support exists in respect of land only, and not in respect of buildings, but the former right remains, though houses are built. But a right to support for buildings may be acquired; and when so acquired it is an easement." Stevenson v. Wallace, 27 Gratt. (Va.) 77.

"The right to lateral support must be regarded as an incident to the land. It is a right of property, 'necessarily and naturally attached to the soil."" It has been well said that 'the negation of this principle would be incompatible with the very security for property, as it is obvious that if the neighboring owners might excavate their soil on every side up to the boundary line, to an indefinite depth, land thus deprived of support on all sides could not stand by its own coherence alone. [Gale & Wheatley on Easements, p. 216.] This doctrine of support has always been strictly confined to those cases in which the owner of the land has not, by building or otherwise, increased the lateral pressure upon the adjoining soil. Every attempt to extend it beyond such cases has proved unsuccessful. When the party complaining of an injury has himself erected buildings upon the margin of his own land, he has been regarded as himself at fault, and therefore not entitled to recover, upon the familiar doctrine that he who complains of the use which another makes of his own property, must himself be free from fault." Farrand v. Marshall, 19 Barb. (N. Y.) 380.

"It is a necessary consequence from this principle that, for any injury to his hand resulting from the removal of the natural support to which it is entitled. by means of excavation on an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done, and the mischief thereby occasioned. This does not depend upon negligence or unskillfulness, but upon the violation of a right of property which has been invaded and disturbed. This unqualified rule has been limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. injury to buildings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining land, an action can only he maintained

For an

when a want of due care or skill, or positive negligence has contributed to produce it." Foley v. Wyeth, 2 Allen (Mass.) 131.

We have held in a previous case that of natural right the surface land is entitled to support from the strata below, and that, when one owning the whole fee, grants the minerals, reserving the surface to himself, his grantee is entitled only to so much of the minerals as he can get without injury to the superincumbent soil and that the plea of a custom would be unreasonable, and hence wanting in an element essential to its validity. A grant of minerals and all privileges necessary for the convenient working, etc., of coal, and the rights 'incident or usually appurtenant to working and using coal mines' does not affect the grantor's right to a surface support. The loss of springs to the owner of the surface by reason of the ordinary working of the mines does not render the owner of the minerals liable for damages. Coleman et al. v. Chadwick, So Pa. St. S1. See also Myer v. Hobbs, 57 Ala. 175; Gilmore v. Driscoll, 122 Mass. 199; Thurston v. Hancock, 12 Mass. 220. (This case is much cited, but in a number of cases has been criticised adversely.) Calender v. Marsh, 1 Pick. () (Mass.) 418; White v. Dresser, 135 Mass. 150: Lasala v. Holbrook, Paige (N. Y.) 169; Marvin v. The Brewster Iron Mining Co., 55 N. Y. 538; Bellows v. Sackett, 15 Barb. (N. Y.) 96; Hay v. The Cohoes Co., 2 N. Y. 159; Marvin v. Brewster Iron Mining Co., 55 N. Y. 538; s. c., 14 Am. Rep. 322; Buskirk v. Strickland, 47 Mich. 389; Busby v. Holthaus, 40 Mo. 161; Charless v. Rankin, 22 Mo. 566. B. & P. R. Co. v. Reaney, 42 Md. 117; Shafer v. Wilson, 44 Md. 268; Dyer

V.

City of St. Paul, 27 Minn. 4573 O'Neil v. Harkins, 8 Bush (Ky.) 620. McGuire v. Grant, 1 Dutch. (N. J.) 356; Executors of Lord v. Carbon Iron Mfg. Co., 38 N. J. Eq. 452; Scranton v. Phillips, 94 Pa. St. 15; Carlin v. Chappell, for Pa. St. 348; Jones v. Wagner, 66 Pa. St. 429; Hoy v. Sterrett, 2 Watts (Pa.) 337; Wheatley v. Baugh, 25 Pa. St. 524; Haverstick v. Sipe, 33 Pa. St. 368; Wiers Appeal, 74 Pa. St. 230; Homer v. Watson, 79 Pa. St. 242; s. c., 21 Am. Rep. 55; Richardson v. Vt. Cent. R. Co., 25 Vt. 465; Beard v. Murphy, 37 Vt. 99; Roath 7. Driscoll, 20 Conn. 533; s. c., 52 Am. Dec. 352; Yandes v. Wright, 66 Ind. 319;

s. c., 32 Am. Rep. 109; Mamer v. Lussem, 65 Ill. 484; Nevins v. Peoria, 41 Ill. 502; Wilms v. Jess, 94 Ill. 464; s. c., 34 Am. Rep. 242; Tunstall v. Christian, So Va. 1; s. c., 56 Am. Rep. 581; Northern Trans. Co. of Ohio v. Chicago, 99 U. S. (9 Otto) 635; Angus v. Dalton, L. R., 6 App. Cas. 740; Partridge v. Scott, 3 M. & N. 220; Wyatt v. Harrison, 3 B. & Ad. 871; Harris v. Ryding, 5 Mees. & W. 59; Smart v. Morton, 5 El. & B. 30; s. c., 30 Eng. L. & Eq. 385. Change of Grade of Street.-An interference with right of support by cutting down a street, or otherwise removing the support of adjacent soil is a taking for which compensation must be made. See Fellows v. City of New Haven, 44 Conn. 240; Mitchell v. Mayor of Rome, 49 Ga. 19. See, however, Mayor of Rome v. Omburg, 28 Ga. 46; City of Quincy v. Jones, 76 Ill. 231; Aurora v. Fox, 79 Ind. 1; City of Delphi v. Evens, 36 Ind. 90; s. c., 10 Am. Rep. 12; Callendar v. March, 18 Mass. (1 Pick.) 418; Armstrong v. St. Paul, 30 Minn. 299; Dyer v. St. Paul, 27 Minn. 457; Morey v. Albany, 98 N. Y. 376; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195; Mears v. Commissioners of Wilmington, Ired. (N. Car.) L. 73; Keating v. Austin, 38 Ohio St. 431; Thurston 7. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 Mass. 199, 201; Farrand v. Marshall, 19 Barb. (N. Y.) 120. Thus where the grade of a street is cut down and the soil of the abutting owner slides into the street, he is entitled to recover. See Aurora v. Fox, 78 Ind. 1; Armstrong v. St. Paul, 30 Minn. 299; Dyer v. St. Paul, 17 Minn. 457; Morey v. Albany, 98 N. Y. 396; Keating v. Čincinnati, 38 Ohio St.

141.

In Snyder v. City of Lancaster (Pa.), 9 Cent. Rep. 381, the plaintiff sued to recover for damage caused to his property by the opening of a street. The city in opening the street removed a house of which the gable end was used as the gable end of plaintiff's premises. The result was that the removal left the plaintiff's house without

any gable end. The court held that the plaintiff's house was injured by the removal of the gable end and that he was entitled to compensation.

The plaintiff and defendant, being the owners of adjoining mining claims, of the kind known as “deep diggings," and which are worked by the hydraulic process, the latter in mining its own ground washed away the gravel, so that the bank caved, and a portion of the plaintiff's claim fell upon the ground of the defendant and was washed away and the gold extracted by it; but the value of the gold extracted was much less than the necessary cost of extracting it. Held, the doctrine of lateral support does not apply to cases like the present, where the very purpose of locating the ground, both on the part of the plaintiff and defendant, was to tear it down and wash it away, and therefore the defendant was not liable.

Hendricks v. Spring Valley Mining and Irrigation Co., 58 Cal. 190; Backhouse v. Bonomi 9 H. L. Cas. 503; Hunt v. Peake, 1 Johns. (Eng.) 705; S. c., 29 L. J., Ch. 785; Humphries v. Brogden, 12 Q. B. D. 743; Wyatt v. Harrison, 3 Barn. & Adol. 871; s. c., 23 Eng. Com. L. 380.

1. An easement for support may be acquired in different modes, but all are reducible to one by grant; which may

be

express, implied or presumed. When the owner of land acquires the easement of support, it would seem that his natural right of support in respect of the soil is enlarged so as to embrace the buildings which he may erect on his land, and invests him with the same right of support in respect of his buildings that he has ex jure naturæ in respect of the soil. If the plaintiff has enjoyed the support of the land or buildings 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 the support without being liable in damages for any injury that accrues

to the plaintiff thereby. In such case the grant is presumed. The grant is implied in the absence of express stipulations, in every case where the owner of adjoining houses or of houses and land severs the property by sale; for in every such case, rights to support are granted by implication by the vendors and purchasers, respectively, for the preservation of the buildings belonging to each other. Rights of support in such cases are mutually granted and reserved between original owner and first grantee; and the second grantee succeeds to owner's reserved rights.

Stevenson v. Wallace, 27 Gratt. (Va.) 77. [This case has been severely criticised in Tunstall v. Christian, 80 Va. 1, but is referred to here as a good statement of the law as held in many States which hold that this right may be acquired by prescription.]

"It is to be assumed as settled, that where two or more houses, so constructed as to require mutual support, are conveyed to different owners, or where separate portions of one dwelling become vested in different owners, a right of support as incident to the property passes by the conveyance to each grantee, unless excluded by the terms of the grant. Easements of this description are acquired by grant; but, in construing the conveyance, it is to be presumed that the parties intended to preserve the obviously existing relations and dependencies of the estate, and all those incidents necessary to the present enjoyment of the thing granted are held to pass. There is an obligation upon each adjacent proprietor in favor of the other beyond what is implied in the maxim which requires every one to use his own so as not to injure his neighbor. The exclusive dominion of each is so far qualified that neither can take away the support of the other, however prudent and careful on his part the act may be. Pierce v. Dyer, 109 Mass. 374. See also Story 7'. Odin, 12 Mass. 157; Casselbery v. Ames, 13 Mo. App. 575; Charless v. Rankin, 22 Mo. 566; McGuire v. Grant, 1 Dutch. (N. J.) 356; Eno v. Del Vecchio, 4 Duer (N. Y.) 53; Lasala v. Holbrook, 4 Paige (N.Y.) 169; Kieffer v. Imhof, 26 Pa. St. 438; City of Quincy v. Jones, 76 Ill. 231; U. S. v. Appleton, 1 Sumn. (U. S.) 492.

"A grant made expressly for the purpose of the grantees building a house creates a legal easement over the adjoining land retained by the grantor coexten

sive with the known uses of the grant; and the circumstance that the grant does not notice the intention of building is immaterial in a case where both grantor and grantee are aware of it, affecting at most the grantee's remedy only, not his right also, relative to such an easement." Robinson v. Grave, 27 L. T. 648, aff`g 29 L. T. 7. See also Rigby 2. Bennett, 21 Ch. D. 559; s. c., 40 L. T. 47; Murchie v. Black, 19 C. B., N. S. 190; Caledonian R. Co. v. Sprot, 2 Macq. H. L. Cas. 479; Palmer v. Fleshees, 1 Sid. 167; Cox v. Matthews, 1 Vent 237; Brown v. Windsor, 1 Crompt. & J. 20.

"A right to lateral support from adjoining land may be acquired by twenty years' uninterrupted enjoyment for a building proved to have been newly built or altered so as to increase the lateral pressure, at the beginning of that time, and it is so acquired if the enjoyment is peaceable and without deception in concealment and so open that it must be known that some support is being enjoyed by the building." Dalton v. Angus, 6 App. Cas. (Eng.) 740; rev'g 3 Q. B. D. 85; Hunt v. Peake, 1 Johns. (Eng.) 705; s. c., 29 L. J., Ch. 785; Partridge v. Scott, 3 Mee. & W.

220; Brown v. Windsor, I Crompt. & J. 20; Hide v. Thornborough, 2 Car. & Kir. 250.

In the case of Mitchell v. The Mavor etc. of Rome, 49 Ga. 19; s. c., 15 Am. Rep. 669, TRIPPE, J., said: "This rule, then, of presumption of right, by grant or otherwise, may well apply to claims which relate to commons, markets, water courses, ways, and the like, where an adverse user or enjoyment is a direct and overt injury to the person who may be the true owner, and against whom the presumption is to be made. In all these instances there is an invasion on the property of another, or his beneficial interest in it is lessened. The wrong done may be redressed by immediate action. During all the time, which, by its lapse, may raise the presumption against him, he has it in his power to arrest that presumption by asserting his right and having it settled by a judgment. But it is difficult, if not impossible, to see how this doctrine can be made to apply to those instances of easements, so called, where there is no possession of anything belonging to another, no encroachment upon another's right, no adverse user, in fact, nothing done whatever against which another could complain, or for

which an action could be brought, and no remedy existing whereby to prevent such a presumption from arising. If it does so apply, a person would be compelled to submit to the loss or depreciation of important rights, or to a damaging interest accruing to another by mere loss of time, and be utterly powerless to prevent it save, perhaps, by some churlish or expensive appropriation of his property to uses or purposes hurtful to himself and offensive to his neighbor. Thus, for instance, if this doctrine exists in the case of lights or windows overlooking the premises of an adjoining proprietor, simply because they have been used for twenty years (and after that time no building can be erected to interfere with such lights), then as such proprietor of the adjacent land has no right of action, no claim for damages for a wrong done, he will be forced to build at the dictation of another, or set up an obstructing wall, merely to show he is lord of his own soil, or forever lose the right of the free use of his property. A servitude on his land might become fixed, simply because he might not be prepared to build within a given time. The decisions thus far referred to were cases involving the question of a prescriptive right from long enjoyment, to light and air. But every principle or reason advanced in support of them applies with full force to a claim of right by the owner of a building erected on the line of his lot to the lateral support of the adjacent soil, on the ground that his building has been standing there for a given number of years. Neither in the case of the window opening out on another man's land, or of a building erected on the dividing line, has the owner committed an act against which his neighbor can protest. He has not touched his property or invaded any right, or given any cause of action. He had a right to use or build on his lot to the farthest limit of his boundary. He has only done this, and never has had any use, or

possession, or enjoyment of any right, corporeal or incorporeal, belonging to another, to which objection could in any form be made, and it would therefore be a misuse, as well as an abuse, of the terms licence, grant, and acquiescence, to say he has acquired a right by means thereof from the owner of the adjacent lot. This was so expressly decided in Hoy v.Sterrett, 2 Watts (Pa.) 327; Richart v. Scott, 2 Watts (Pa.) 460.' The grounds upon which these decisions are put are precisely the same as those in the cases applicable to lights and air. As has been well said by a writer in the American Law Review, vol. 1, p. 10: 'How can the assent of the adjoining proprietor be implied when he never had the opportunity of expressing his dissent? He could bring no action against his neighbor for doing what he had a perfect right to do. It is a mockery to say he might have dug up his land during the period of prescription. The doctrine has been very much shaken in England since the recent case of Solomon v. Vinters Co., 4 H. & N. 585;' and adds further, 'the analogous doctrine of lights has been so generally discarded in this country, that we are disposed to believe that the prescriptive right of support to houses will be also rejected when fairly presented for decision.'

"As was said of the doctrine of a prescriptive right to lights, already quoted, so may it be said of this, as claimed by the plaintiff in error, 'it cannot be applied to the growing cities and towns of this country without working the most mischievous consequences.' In Mayor and Council of Rome v. Omberg, JUDGE LUMPKIN said: 'People purchase property and build in towns with full knowledge of public necessity to have streets by excavating or elevating, as the case may demand; and they must take the chances and consequences.' I conclude on this point with the words of our young brother who ably argued it for defendant

in error: 'One building on his own land is clearly in the exercise of his legal rights. There is no encroachment upon the land or rights of another; no occupation of that which belongs to another; no adverse possession under a claim of title. No one can have a right of action against him, for he has not trespassed upon or violated the rights of any other person. How, then, can he, by this lawful use of his own land for twenty years, acquire a beneficial interest in the land of his neighbor?" "

The following cases either deny that this right can be acquired by prescription or modify the doctrine. Gilmore v. Driscoll, 122 Mass 199; Tunstall v. Christian So Va. 1, s. c., 56 Am. Rep. 581 Napier v. Bulwinkle, 5 Rich. (S. Car.) 311.

1. "From the recent English decisions it appears that the party who is about to endanger the building of his neighbor by a reasonable improvement on his own land is bound to give the owner of the adjacent lot proper notice of the intended improvement, and to use ordinary skill in conducting the same; and that it is the duty of the latter to shore or prop up his own building, so as to render it secure in the mean time. (See Payton v. Mayor of London, 9 Barn. & Cress. 725; 4 Man. & Ry. 625; Walters v. Pfeil, i Moody & Malk. 362; Massey v. Goyder, 4 Car. & Payne 161).' Lasala v. Holbrook, 4 Paige (N. Y.) 169.

"The owner of the lot, who improves by putting up a dwelling or other house thereon, extending to the boundary of the same, which is a mere line of length without breadth separating his lot from the adjacent one belonging to another, and remaining unimproved, must be considered as bound to use suitable materials and the requisite skill in doing so, in order that the walls of his building next to the adjacent lot may, if the owner thereof should think proper, in preparing the foundation for the house which he may afterwards resolve on erecting, to excavate the adjacent earth or to go below the foundation of the walls of the first building, admit of this being done by ordinary care and caution, with the use or the common and ordinary means of accomplishing it. If the first builder, in the construction of his wall use material unfit for the purpose; or the materials,

though suitable, are so unskilfully built in the wall that it cannot be preserved and supported by ordinary care and diligence, with the use of the usual and ordinary means resorted to in practice for that purpose; when the second builder comes to dig out the foundation for his house, but notwithstanding the use of such care, diligence and means by the latter to prevent it, the wall gives way and with it a part or the whole of the first building falls, occasioning small or great loss to the owner thereof, it must be regarded as damnum sine injuria, for which the second builder is in nowise responsible." Richart v. Scott, 7 Watts (Pa.) 460.

It is erroneous to rule that the proprietor having the excavating done is bound to use such care and caution as a prudent man experienced in such work would have exercised, if he had himself been the owner of the injured building. Such a ruling tends to mislead, as one who is proprietor of both the contiguous lots might very prudently subject himself to expense and inconvenience for the protection of his building that could not justly be imposed upon one making excavations upon an adjoining lot belonging to him. The excavator cannot set up as a defence that he used such care as his builder and superintendent, a skilful and careful person, deemed necessary. The decisive question is, whether there was actual negligence in making the excavation. Charless v. Rankin, 22 Mo. 566.

The party having the right, under a reservation in the deed, to remove the coal underlying property conveyed to another owner, is held to the exercise of ordinary care in removing the coal, and if such care requires that pillars or ribs of coal be left in order to protect the property of the surface owner, their removal would constitute negligence, entitling the surface owner to damages for loss caused thereby. Livingston . Moingona Coal Co., 49 Iowa 369; Carlin v. Chappell, 101 Pa. St. 348; Scranton v. Phillips, 94 Pa. St. 15; Horner v. Watson, 79 Pa. St. 242; Coleman r. Chadwick, So Pa. St. Sr; Wilms t Jess, 94 Ill. 464; Yandes v. Wright, 66 Ind. 319.

"The provision of the act of 1853 regulating the excavation of lands by owners in the cities of New York or Brooklyn which requires such owner,