However, the right of surface support may be divested by grant from surface owner to the owner of the minerals, and if the surface owner has expressly waived or qualified his right, he would not be entitled to protection in equity, for a subsequent injury to the surface, and his grantee would take the surface subject to the rights of the mineral owner and the previous limitations placed upon the rights of the surface owner by his grant.1 A land § 490. Protection of right to lateral support. owner has the right, independent of prescription, to the lateral support of his neighbor's land, so far as the same is necessary for sustaining his own soil in its natural state, and for excavations causing a withdrawal of such support, he is entitled to compensation for the injury resulting to the land, and also for whatever damage is caused to the buildings erected thereon. And a court of equity will restrain the adjoining landowner from excavating or removing the soil wick, 80 Pa. St. 81; Humphreys v. Bragden, 12 Q. B. 739; s. c. 1 Eng. L. & E. 241. "And for liability of lessee for acts of his subtenant, see Berkly v. Shafto, 15 C. B. (N. s.) 79; Bainb. 483; Williams v. Gibson, 84 Ala. 228. 1 Smith v. Darby, L. R. 7 Q. B. 716; Buchanan v. Andrew, L. R. 2 S. C. App. 286; 5 Moak, 125; Scranton v. Phillipps, 94 Pa. St. 15; Williams v. Bagnal, 12 Jur. (N. s.) 987. And it is asserted by Mr. Bainbridge that any permanent injury to surface is justifiable, if necessary to the er joyment of the right to mine. Bainb. on Mines, 21. But the authorities do not extend the rights of the mineral owner so far, and the surface owner in such case is entitled to compensation. Bain. 486; Hodgson v. Moulson, 18 C. B. (N. s.) 332; Gilmore v. Driscoll, 122 Mass. 199; Wood on Nuisances, 185; cases cited, 184-190; Wakefield v. Buccleugh, L. R. 4 Eq. 624; Ryckman v. Gillis, 57 N. Y. 68; 15 Am. Rep. 464; Martin v. Brewster I. Co., 55 N. Y. 538; 14 Am. R. 322. And a custom justifying such injury is not a good defense. Horner v. Watson, 79 Pa. St. 242. 2 Hunt v. Peake, 1 Johnson (Eng.), 705; Farrand v. Marshall, 21 Barb. 409. But see Ryckman v. Gillis (57 N. Y. 58), where a reservation of the right to take clay was enforced, although causing adjacent land to cave. from his land, if the effect of such excavation will be to cause the land of his neighbor, by reason of the removal of his lateral support, to fall or subside.1 But the lateral support to which an owner of land is entitled only extends to such adjacent land as would be sufficient to afford the necessary support in its natural and undisturbed State, and in granting relief under such circumstances, equity is confined to those cases where the complainant has not himself, by buildings or otherwise, increased the lateral pressure upon the adjoining soil, for if he has erected buildings upon the margin of his own land, as he would himself be regarded at fault, he would not be entitled to an injunction.3 But where the buildings erected by the complainant were injured by the mine operations of the adjoining landowner, and his operations would have caused the land to subside, without the additional weight of the buildings, the court held complainant was entitled to a perpetual injunction and for compensation, and although the mine operator is not generally liable for injuries to buildings erected subsequent to the acquisition of his right to mine, where the working of the mine was the real cause for the subsidence of the adjacent land, the owner can recover for 1 The rule as to lateral support is the same as in case of ordinary adjoining land. Bainbridge on Mines, 499; Lord v. Larbon Iron Mfg. Co., 38 N. J. Eq. 452; Richards v. Jenkins, 18 L. T. Rep. (N. s.) 438; Gilmore v. Driscoll, 122 Mass. 199; s. c. 23 Am. Rep. 312; Hunt v. Peake, supra. 2 Farrand v. Marshall, 21 Barb. 409; 19 Id. 380; Birmingham v. Allen, L. R. 6 Ch. Div. 284. 3 Hunt v. Peake, 1 Johnson (Eng.), 705; Partridge v. Scott, 3 M. & W. 220; McGuire v. Grant, 1 Dutch. (N. J.) 356; Rogers v. Taylor, 2 H. & N. 828. 4 Jeffries v. Williams, 5 Ex. 792; Rogers v. Taylor, supra; Homer v. Knowles, 6 H. & N. 454; Hunt v. Peake, 1 Johnson (Eng.), 705. 5 Marvin v. Brewster Iron Co., 55 N. Y. 538; 14 Am. Rep. 322; Rowbotham v. Wilson, 8 H. L. Cas. 348; s. c. 3 E. E. 752; 6 El. & Bl. 593. damage to buildings thereon, if he was not himself negligent in the erection of such buildings,1 and the erection of buildings subsequent to the vesting of the right to mine. would not vary the rights of the parties.2 § 491. As to claim on public land – -"Placer mines.". The principle upon which the courts grant relief in case of trespass to mining property applies to occupants of claims upon the public land and can be resorted to either by the States or general government to protect the public land from injuries of the class called trespasses.3 Equity's relief by injunction is particularly applicable to the kind of mining known as " placer mines," and on account of the irreparable injury that would result from the continuance of a trespass to this character of property, it would seem that the courts should exercise still greater latitude in trespasses to such property. The ore in a placer mine consists generally of small auriferous deposits which could be easily worked out and removed without leaving the slightest evidence of their value, upon which to base an accounting. For this reason the courts should be, and generally are, more alert to enjoin encroachments and 1 Homer v. Knowles, 6 H. & W. 454; Hunt v. Peake, 1 Johnson (Eng.) 705. And where the conveyance of the minerals contemplates a future erection by the surface owner of certain buildings thereon which he covenants not to put to certain uses, this was held, by implication, a sufficient reservation of the right of support for the buildings afterward erected. Berkley v. Shafto, 15 C. B. (N. s.) 79. 2 Marvin v. Brewster Iron Co., supra; Rowbotham v. Wilson, 8 H. L. Cas. 348. 3 United States v. Gear, 3 How. (U. S.) 133, 120; Cotton v. U. S., 11 How. (U. S.) 229; U. S. v. Cortillera, 2 Black, 1; U. S. v. Parrott, 1 McAll (U. S.) 271; s. c. McAll (U. S.) 447; 15 Am. & Eng. Enc. of Law, 514. 4 High on Inj., 735, p. 562; Chapman v. Toy Long, 4 Sawyer, 28. And see, as to rights of patentee to excavating ditches and injury by flooding soil, Henshaw v. Clark, 14 Cal. 160. trespasses upon such mines, whenever the complainant shows himself entitled to possess the mines under general law, or some local rule or custom, and has also the right to appropriate the ore therein.1 2 § 492. For diverting water course. The necessity of the conditions of miners upon the public land, has led to a recognition of their right, both by Congress and by local rules and customs, to the use of the waters of running streams for mining purposes, and an injunction would not lie to restrain the defendant from using the waters of a stream for mining purposes, unless the plaintiff had acquired prior right to use the waters of such stream, and the defendant was guilty of such an unreasonable use of the water as to render the plaintiff unable to exercise his rights in and concerning the same. But it is frequently 1 Wade's Am. Min. Laws, p. 234, § 158. Chapman v. Toy Long, 4 Saw, 28, where defendants, being aliens, were enjoined from working a placer claim, although they had prior possession to complainant, for the reason that they were not qualified to locate the claim. High on Inj., § 735, p. 562. "Where plaintiffs alleged ownership of a lode claim, and prayed an injunction to restrain defendants working, and the defendants' answer not only denied plaintiffs' allegations, but stated that the plaintiffs were working the lode and property of the defendants: Held, that under the practice act of Utah, the court had power to enjoin the plaintiffs from working." Smith v. Richardson, 1 Utah, 245; M. M. D., p. 150. 2 Basey v. Gallagher, 20 Wall. 670; Wait's Act. & Def., Vol. IV, p. 442; McKnight v. Ratcliff, 44 Pa. St. 156; Clark v. Willett, 35 Cal. 534; Stone v. Bumpus, 46 Cal. 218; Esmond v. Chew, 15 Cal. 137; Smith v. Kenrick, 7 C. B. 505; Fletcher v. Rylands, 3 Hurl. & Colt. 173. 3 Ante, idem. Atchison v. Peterson, 1 Mon. T. 561; Locust Mountain Coal Co. v. Garrell, 9 Phil. (Penn.) 247; Fletcher v. Smith, L. R. 2 App. Cas. (H. L.) 781; Baird v. Williamson, 15 C. B. (N. s.) 376; Tillotson v. Smith, 32 N. H. 90. "A person appropriating and diverting the water of a stream at a given point, cannot afterwards change the point of diversion to the prejudice of a subsequent locator." Butte T. M. Co. v. Morgan, 19 Cal. 609; M. M. D. 406. "No equitable remedy can be had necessary, where mining is carried on at any great depth, to have a stream of water running through the mine or tunnel to be used for mining purposes, and if the complainants are entitled to have a stream running through their tunnel, and the defendant diverts the stream from plaintiff's drift, or tunnel, by constructing and excavating his own beneath the same, an injunction will lie on behalf of the plaintiff to prevent the defendant from so doing, providing the plaintiff can show a good title to the land in controversy, and the water is not shown to come from the land of the defendant.1 § 493. Flowing of refuse matter. — An injunction will lie in behalf of a prior occupant of a mining claim to restrain adjoining mine owners from draining the refuse matter from their mines over such occupant's claim, or to protect the occupant of a mining claim against the refuse coming down from a claim on a higher location than his own. And it would seem an injunction will be granted for a mere past diversion of a water course; but when the injury is continuing, relief may appropriately be sought in equity." Tuolumne W. Co. v. Chapman, 8 Cal. 392; M. M. D. 140. 1 Fletcher v. Smith, L. R. 2 App. Cas. (H. L.) 781. A mine owner has no right to be an active agent in sending water into a lower mine. Baird v. Williamson, 15 C. B. (N. s.) 376. And in Pennsylvania it is said he must use reasonable diligence to prevent the flow of water from his mine into the lower one. Locust Moun. Coal Co. v. Garrell, 9 Phil. (Penn.) 247. In case of a contested water right, where the granting of a temporary injunction would work less harm than its refusal, it should be granted. Copper King v. Wabash Mining Co. (1902), 114 Fed. Rep. 991. One appropriating water after it passed from a placer mine, and before it passed from the premises to the creek, held to acquire rights of a licensee only, and not entitled to enjoin its pollution. Fairplay Hydraulic Mining Co. v. Weston (Colo.), 67 Pac. Rep. 160. 2 Logan . Driscoll, 19 Cal. 623. jury by water from another mine. And it will also lie to prevent in- |