§ 213. Relative rights of mine and surface owner. The owner of the mineral is entitled to enjoy his property to the fullest extent compatible with the rights of the surface owner, and his rights are not confined by the powers enumerated in his grant.' As regards the surface owner, the mine owner's rights are limited, however, to his necessities, and he cannot prevent the surface owner from putting his land to any lawful use, but both are required to use their property so as not to cause unnecessary injury.

cent parcel, is a violation of the right of property, and is actionable, independent of the consideration, whether it was done with or without negligence. Victor Mining Co. v. Min. Co., 50 Mo. App. 525. When the surface and the minerals belong to separate owners, the owner of the surface is prima facie entitled to the support of the subjacent strata; and the owner of the minerals is bound so to work the mines as to leave sufficient support for the surface; but these rights may be varied by express stipulation." Smart v. Morton, 5 El. & Bl. 30; 30 Eng. L. & E. 385; 3 Com. L. R. 1004; M. M. D. 357. "Grantee of surface may recover for injury thereto for failure of mine operator to leave proper supports, though such failure occurs before his deed." Noonan v. Pardee (Pa.), 50 Atl. Rep. 255. The surface owner's right to support of surface in its natural state is an absolute right. Pringle v. Vesta Coal Co., 172 Pa. St. 438; 33 Atl. Rep. 690; Robertson v. Coal Co., 172 Pa. St. 566; 33 Atl. Rep. 706; Belle v. Earl of Dudley, 64 L. J. Ch. (N. s.) 291; 1 Ch. 182. Damages for injury to surface support recoverable when mineral owner injures same. C. & A. R. R. Co. v. Brandau, 81 Mo. App. 1.

322.

1 Marvin v. Brewster Iron Co., 55 N. Y. 538; s. c. 14 Amer. Rep.

2 Ante, idem.

"The owner of a mine beneath the surface, though he have a right of way through the surface soil, has no right so to exercise the same as to interfere with the power of the owner of the land to make any lawful use thereof. The latter may sink a cesspool on his land, though it interfere with a tunnel constructed by the mine owner under the lot." Park Coal Co. v. O'Donnell, 7 Leg. Gaz. 149; 4 Luz. L. Reg. 127; M. M. D. 356. The surface owner who retains title to the oil and gas in a tract of land, has an easement on the coal stratii therein which will enable him to drill through into the oil or gas. Chartier's Block Coal

- Custom cannot affect right.

Since

§ 214. Same the owner of the surface, as a matter of natural right, is entitled to support from the subjacent strata, the grantee of the minerals, where the surface was reserved, would only take title to so much of the mineral as could be obtained, without injury to the surface, and he would not be permitted to show a custom permitting him to interfere with such right of the surface owner,1 as a custom to this effect would be in derogation of the right of property and consequently unreasonable and void. 2

§ 215. Same

"Lateral" and "subjacent" support. The surface owner's easement of support extends not only to the lateral support of his neighbor's land, so far as it may be necessary to sustain his soil in its natural state, but also to the subjacent support of the surface by the underlying stratii and subsoil. All that the surface owner is entitled to, however, from the lateral surface owner, is the support of the surface in its natural condition; but, as to the owner of the subjacent soil or mineral,

Co. v. Mellon, 152 Pa. St. 286; Rend v. Venture Oil Co., 48 Fed. Rep. 248; 48 Cent. Law Journ. 472.

1 Coleman v. Chadwick, 80 Pa. St. 81.

2 "A custom to mine coal without leaving supports for the surface is unreasonable; it is destructive to the upper estate; and if it can be allowed as a custom it must be uniform in the region where the premises are situate, and so ancient that the memory of man runneth not to the contrary," Jones v. Wagner, 66 Pa. St. 430; B. & W. L. C. 608; 5 Am. R. 385; Horner v. Watson, 79 Pa. St. 242; M. M. D. 359.

3 Hunt v. Peak, 1 Johnson (Eng.), 705. "The owner of land, excavating the same for clay to make brick, may not destroy the lateral support of adjoining ground by digging up to his line and necessitating the fall of the soil of the adjoiner into the clay pit; and is liable in damages for injury so occasioned to the adjoining lot." Farrand v. Marshall, 21 Barb. 409; s. c. 19 Id. 380; M. M. D. 359.

4 Alloway v. Wagstaff, 4 H. & N. 307; Richards v. Jenkins, 18 Law Times (N. s.), 438; Dugdale v. Robertson, 3 Kay & J. 695.

5 Farrand v. Marshall, 21 Barb. 409; Richards v. Jenkins, supra.

any injury to the surface owner would be actionable, provided the acts causing the injury occurred subsequent to the vesting of the surface right.1

§ 216. Extends to buildings by implication. - Where the surface owner has granted the minerals beneath the surface to another, the right of surface support extends not only to the soil itself, but also to the buildings erected upon the surface, although it has been held that the mine owner owed no duty as to buildings, subsequently erected. Where buildings or other erections, have been

"The rights and obligations of the owner or occupier of adjacent and subjacent mines are not the same. The surface owner is entitled as against the occupier of adjacent mines or surface, to that support only which the adjacent land and mines afford to his property in its natural condition, and can acquire a right to support for buildings on his land, Only by possession or enjoyment for twenty years. The occupier therefore of the adjacent mines, working them so as to subvert buildings on the surface, is not liable to an action unless the buildings have existed for twenty years before the working which has caused the injury; whereas the surface owner may maintain an action against the subjacent mine occupier for an injury to buildings on the surface, however recently erected, if it be before the commencement of the title and possession of the occupier of the mines." Richards v. Jenkins, 18 Law Times (N. s.), 438; M. M. D. 360.

2 Berkley v. Shafto, 15 C. B. (N. s.) 79; Rogers v. Taylor, 2 H. & N. 828; Jeffries v. Williams, 1 Eng. L. & E. 433. The owner of a building has no natural easement for its support by his neighbor's land. Eads v. Gaines, 58 Mo. App. 586. The natural easement applies only to the land in the condition that nature left it. Handlin v. McMannus, 42 Mo. App. 551. But see Walters v. Hammond, 75 Mo. App. 237.

3 "All that can be claimed by the owner of the surface, under the right of subjacent support, is that no physical injury be wrought to the surface in its natural state, or as contemplated at the time of the grant. The mine owner is not bound to support buildings subsequently erected." Marvin v. Brewster Iron Co., 55 N. Y. 538; 14 Am. R. 322; M. M. D. 357. "When there is a severance of the mineral from the surface ownership, with a right by the terms of the award or grant in the mine owner to disturb the surface, the erection of buildings subsequent to the vesting of the right to disturb the surface cannot

4

3

1

constructed for a sufficient time to give a prescriptive right to the subjacent or lateral support, any injury to such right would be held actionable; the owner of the buildings would be entitled to support for the additional weight of the buildings,' and damages could be recovered for any injury thereto. It is sometimes held that damages are only recoverable where the excavations were negligently conducted; but as the act of making the excavation and the resulting injury to the surface owner themselves constitute an actionable wrong, the better rule perhaps would not require more to be shown.5 Recognizing both the right of the owner of the mineral to his property and the surface owners, as well, and that the enjoyment of the one necessarily resulted in injury to the other, some statutes have given compensation to the mine owner, by way of condemnation, from the surface owner, but as the property in mineral in place is usually so difficult to place a value upon, the more satisfactory solution of such conflicting rights would seem to be to hold the mine owner to damages for excavations to the injury of the surface owner, if his rights

vary the rights of the parties." Rowbotham v. Wilson, 8 H. L. Ca. 348; s. c., 3 E. & E. 52; 6 El. & Bl. 593; 8 Id. 123; M. M. D. 360. 1 Hunt v. Peake, 1 Johnson (Eng.), 705.

2 Hamar v. Knowles, 6 H. & N. 454; Jeffries v. Williams, 20 L. J. Ex. 14; Humphries v. Bragdon, 12 Q. B. 739.

3 Berkley v. Shafto, 15 C. B. (N. s.) 79; Hilton v. Whitehead, 12 Q. B. 733.

4 McGuire v. Grant, 1 Dutch. (N. J. ) 357; Rogers v. Taylor, 2 H. & N. 828.

5 Hamar v. Knowles, 6 H. & N. 454; Jeffries v. Williams, 20 L. J. Ex. 14; s. c. 5 Ex. 792.

6 "A canal company having the privilege of purchasing the subjacent minerals under Act of Parliament cannot hold the owner of the minerals responsible in damages for injuries occasioned by his mining for them upon the refusal of the company to purchase under the act." Wyrley Can. Co. v. Bradley, 7 East, 368. "And so though the working may cause the surface to subside." Fletcher v. Great W. R. Co., 4 H. & N. 242; Great W. R. Co. v. Fletcher, 5 H. & N. 689; M. M. D. 363.

were the more valuable and he was able to respond in damages, but otherwise to restrain all threatened injuries to the surface owner.2

§ 217. Same-Railroad entitled to.-A grant of right of way to a railroad, for railroad purposes, carries the right of surface support, although the title to the minerals may be reserved in the land owner.3 A subjacent or lateral owner would not be permitted to interfere with the necessary surface rights of the railroad company; the right would attach even beyond the limits of the land sold or granted; and would extend not only to the railroad itself, but also to a superstructure, placed by it on the land, notwithstanding it might require more than usual support. But where the law or an act of the

1 Aspden v. Seddon, L. R. 10 Ch. App. 394; Hamar v. Knowles, 6 H. & N. 454. "Case is the proper form of action for injuries done to the surface owner by the acts of the mine owner in not leaving sufficient support." Harris v. Ryding, 5 M. & W. 60; M. M. D. 357.

2 Hunt v. Peake, 1 Johnson (Eng.), 705; Farrand v. Marshall, 21 Barb. 409.

3 Caledonian R. R. Co. v. Sprat, 2 MacQueen, S. C. App. 449; Caledonian Co. v. Belhaven, Id. 56.

4 Caledonian Co. v. Belhaven, supra.

5 Elliott v. N. E. Ry. Co., 7 H. L. Cas. 333.

Elliott v. N. E. Co., supra; North-Eastern R. R. Co. v. Elliott, 30 L. J. Ch. 160; 32 Id. 402. "A railway act providing for the purchase of lands for railroad purposes, with reservation of the minerals to the owner of the lands so purchased, must be construed to give both lateral and vertical support, although the sale to the railway was compulsory, and an injunction was awarded to restrain the working of minerals of great value underneath in any such manner as to occasion damage to the railroad." Northeastern R. R. Co. v. Crossland, 32 L. J. Ch. 353; affirming s. c. 2 Jo. & H. 565; M. M. D. 306. "A railroad company was empowered by special act to take lands, the act providing for compensation to parties owning mines interfered with. The owner of the surface, subsequently, by private sale, without regard to the act, sold the land adjoining his mine to the railroad, reserving the minerals. Afterwards, upon attempting to extend his mine underneath