hold, especially as it is above twenty years old, that he was entitled to the support of the surrounding ground. But when the jury found that the injury was not occasioned by the weight of the building, the existence of the house on the land was immaterial. The plaintiff complains of injury to the land, the fall of the house being rather matter of damage. And if the defendant knew that the land there had been so weakened by undermining on the east side, that there was greater danger in working on the west side than there would otherwise have been, then he ought not to have dug there so as to throw the plaintiff's land down. And, having done so, he is responsible for the injury."

The term adjacent lands was first defined in a Court of Law in the judgment of the Master of the Rolls in The Mayor of Birmingham v. Allen (L. R. 6 Ch. D. 284; L. J. Rep. 37 N. S. 207); confirmed on appeal. In that case the Master of the Rolls held that when, by reason of the working out of the mines under lands lying between the lands of A and those of B, A cannot work the mines under his own lands without causing a subsidence of B's lands and buildings erected thereon; B cannot restrain A from working his mines up to his own boundary. In the course of his judgment the Master of the Rolls said: "Now, what is the right of the adjoining owner? As I said before, it is a right to the support of his land in its natural state. Support by whom? The judges have said support by his neighbour. What does that mean? Mr. Chitty (counsel for the plaintiff, A) wanted to extend his neighbour to all England, and said: 'I do not care who they are; all the landowners in England, however distant, are

The neighbouring owner owner of that portion of

my neighbours for this purpose, if their operations do in any remote degree injure my land.' But surely that cannot be the meaning of it. for this purpose must be the land-it may be a wider or a narrower strip of land— the existence of which in its natural state is necessary for the support of my land."

When a building erected less than twenty years has been injured by the subsidence of the land upon which it is built, the question of liability depends upon whether the weight of the building has helped to cause the subsidence. If the workings would have caused the land, unencumbered, to subside, then the mine-owner is liable for the damage done to the building and land; but if, but for the weight of the building, the land would not have subsided in consequence of the workings, the mine-owner is not liable. This is the principle to be gathered from the cases of Wyatt v. Hutchinson (3 B. & Ad. 871), Brown v. Robins (4 H. & N. 186), Hunt v. Peate (Johns 705), and Partridge v. Scott, and has always been acted upon by judges in directing juries. "Judges often have at least I myself often have," says Martin, B., in Bonomi v. Backhouse, "left it to the jury to say whether the building of the house has made any difference as to the subsiding of the land."

The right of buildings erected twenty years to actual support of the adjoining land was the subject of much discussion in the above-mentioned case of Dalton v. Angers (6 App. Ca. 740), in which, after calling in the assistance of six judges, the House of Lords decided “That a right to lateral support from adjoining land may be acquired by twenty years' uninterrupted enjoy

ment 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 or concealment, and so open that it must be known that some support is being enjoyed by the building."

The facts in the case were as follows: Two dwelling houses adjoined, built independently, but each on the extremity of its owner's soil, and having lateral support from the soil on which the other rested. This having continued for much more than twenty years, one of the houses (the plaintiffs') was, in 1849, converted into a coach factory, the internal walls being removed, and girders inserted into a stack of brick-work in such a way as to throw much more lateral pressure upon the soil under the adjoining house. The conversion was made openly, and without deception or concealment.

More than twenty years after the conversion, the owners of the adjoining house employed a contractor to pull down their house and excavate, the contractor being bound to shore up adjoining buildings and make good all damages. The contractor employed a subcontractor upon similar terms. The house was pulled down, and the soil under it excavated to a depth of several feet; and the plaintiffs' stack, being deprived of the lateral support of the adjacent soil, sank and fell, bringing down with it most of the factory. It was held, upon the principles above stated, that the plaintiffs had acquired a right of support for their factory by the twenty years' enjoyment, and could sue the owners of the adjoining house and the contractor for injury.

With regard to the right of support to buildings

from subjacent soil where there has been twenty years' enjoyment of the support, there appears to have been up to recently only one case directly in point. That case was Rogers v. Taylor (2 H. & N. 828), in which case Lord Chief Justice Cockburn laid it down to the jury that at the end of twenty years after the house had been built, the plaintiff (the owner) would have acquired a right to support unless in the meantime something had been done to deprive him of it, and that the jury must presume that the additional burden was put upon the land by the assent of the owner of the minerals, and must presume a grant by such owner of a right to support. He therefore left it to the jury to say whether the plaintiff had enjoyed the support for the foundation of his house for twenty years. And the verdict, found for the plaintiff, was upheld by the Court. The decision in this case was never appealed against, and was therefore the law upon the subject of subjacent support to buildings erected twenty years. Probably the reason why there are not many cases upon the point is due to the fact that the excavations, which have caused the injury, would have caused the surface in its natural state to subside. In the case of Bell v. Love (10 Q. B. Div. 548), it was held by Lord Justice Lindley that the principles of Dalton v. Augus (cited above), applied also to that case, which was a case of subjacent support. That being so, a house built twenty years acquires a right to the support of the subjacent land upon the same conditions as it acquires a right to the support of adjoining land, which conditions are to be found in the decision of Dalton v. Augus, above cited.

In the cases previously considered in this chapter no question of title was involved. Where such a question arises the matter becomes one of construction of documents. Lord Blackburn thus put it in Davis v. Treharne (6 App. Ca. 467): "In common right the person who owns the surface has a right to have it supported below by minerals. What a Court of Law has to do is to look at the documents, and see whether the parties have agreed upon something different from the common right."

It is obvious that each particular case must depend upon the documents relating to it, and except where a principle of construction applicable to all such cases is laid down, the judgment in one case will afford but little aid in determining another. A case furnishing a useful principle of construction is that of Smith v. Darby (L. R. 7 Q. B. 716). In that case a plea to a declaration for mining under the plaintiff's land without leaving proper support, whereby the foundations of the plaintiff's mill and other buildings gave way, and the buildings fell, which set out a lease granted by the plaintiff's predecessor in title, the terms of which were sufficient to show, by implication, that it was intended that the lessees of the mine should have the right to work the mine so as to undermine the surface, subject only to paying damages according to the covenants, was held upon demurrer to be good. In the course of his judgment, Lush, J., said: "I take it to be well established by the cases, that a grant of all the minerals under certain lands without more, must be read not as meaning a grant of all the minerals that may be found under those lands, but of all the