the surface unincumbered by buildings, whether the workings causing the injury are subjacent or adjacent.

(2) Where buildings have been erected, and the surface would have subsided if they had not been erected thereon, the mine-owner is liable for the injury caused to such surface and buildings by subjacent or adjacent workings, however recently they may have been erected.

(3) Where, but for the weight of such buildings, the subsidence would not have taken place, the mine-owner is not liable, except where the buildings have been erected for twenty years, for injury caused to the surface and buildings by subjacent workings, or workings under adjoining lands, where the enjoyment of the support of the houses has during the twenty years been peaceable and without deception or concealment, and so open that it must be known that some support is being enjoyed by them.

(4) The term "adjoining lands" in this chapter means that portion of 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 the land, injured by such workings, in its natural state.

II. Where the relations between the owner of the surface and the owner of the minerals are governed by some contract, whether such contract arises out of a covenant or reservation in a deed, or out of the provisions of an Act of Parliament giving legislative effect to arrangements come to or presumed to have been come to by the parties, the prima facie right of the owner of the surface is to have his surface supported, and the prima facie right of the owner of

the minerals to get them is limited to getting them without causing injury to the surface; and when the latter claims any right in excess of this, the origin, nature, and extent of such rights must be clearly defined by some grant or equivalent assurance, in the absence of which the presumption is in favour of the right of the owner of the surface to support. In other words, what a Court of Law has to do is to look at the documents, or the Act of Parliament, to see whether the parties have agreed to something different to the common right.

III. While a contract or an Act of Parliament may give a mine-owner the right to work his minerals so as to pull down the surface, a custom claiming such a right is bad.

IV. When different seams lying perpendicularly over one another belong to different persons, the degree of support to which the upper is entitled from the lower has as yet by no means been distinctly defined. But when the owner of several seams of coal sells or lets some of the upper seams, he must by that grant confer on the purchaser or lessee a right to sufficient support from the underlying strata, to enable him to use the strata granted for the purpose for which he acquired them. Mundy v. Duke of Rutland, per. Kay. J. 23 Ch. Div. p. 81.

V. The right to bring an action for injuries caused by mineral workings commences not from the date of the working by which the injury was caused, but from the date of the injury itself.

"THE law relating to this subject," says Mr. Bainbridge, "seems to be sufficiently simple and rational. It is founded on the natural assumption that water is the common enemy, which, whether open or concealed, each owner must combat for himself; and upon another different but consistent principle, that each owner has the full right to extract the greatest possible benefit from his property; and that if in so doing he injure his neighbour he will not be liable to action, if his acts spring from no malice or mischief, and are simply consistent with a reasonable exercise of his own rights. For he ought not to be held responsible for the negligence of a neighbour who might have protected himself. The custom prevailing in most mining districts is conformable to this law. The mine-owner works to the very end of his boundary on the dip of the beds, and leaves a barrier of his own mineral on the rise. Each owner thus fares alike, and each is, or ought to be, independent of the other."* There is here no question of easement. It is a matter depending entirely upon

* Bainbridge on Mines, 426.

the admitted rights of property. If an upper owner trespass upon the barrier of a lower owner, the former will be liable for the consequential damage, as well as for the trespass itself.

The leading cases upon this subject are the following. In the case of Clegg v. Dearden (17 L. J. Q. B. 233), the plaintiffs were in possession of a colliery in Staffordshire from 1830 to the commencement of the suit. The defendant had worked an adjoining colliery, on the rise, previously to the demise, had trespassed into the plaintiffs' coal mine, and had made some excavations and openings in the coal of that mine, by means of which the roof of those excavations fell in, and the interstice became filled with water. Afterwards the plaintiffs worked within a few yards of their boundary, where they found these waters which flooded their mine. These trespasses were previously unknown to the plaintiffs. The defendant had ceased to work his own coal, and to pump out the water. It was found by the special verdict that the distance left by the plaintiffs would have been a sufficient barrier, if the defendant had not trespassed wrongfully. In 1841 an action on the case was brought against the defendant for those trespasses, which was referred to an arbitrator, and substantial damages awarded. Afterwards another action was brought against the defendant for not closing the barrier. But it was held by the Court of Queen's Bench that the action could not be maintained. Lord Denman in giving judgment said there was a legal obligation to discontinue a trespass, or remove a nuisance, but no such obligation upon a

trespasser to replace what he had pulled down or destroyed on the land of another, though he was liable in an action of trespass to make compensation in damages for the loss sustained. The defendant having made an excavation and aperture in the plaintiffs' land, was liable to an action of trespass; but no cause of action arose from his omitting to re-enter the plaintiffs' land to fill up the excavation. Such an omission was neither a continuation of a trespass, nor of a nuisance, nor the breach of any legal duty. The flowing of the water and the damage were merely consequential, for which compensation had been made.

The case of Smith and others v. Kenrick (18 L. J. C. P. 172) is also a valuable leading case upon this subject. The plaintiffs and defendant occupied adjoining collieries. In 1844 a predecessor of the defendant, but with whom he had no privity, committed a trespass and made three holes, called thyrlings, in and through a barrier of coal belonging to the plaintiffs, which separated the two collieries, and formed a barrier between the chambers which had been excavated in the defendant's colliery and the chambers in that of the plaintiffs. The defendant afterwards became the occupier of his colliery without any privity either of contract or estate between him and his predecessors who had so made these holes. When the defendant became the occupier there was a large subterraneous body of water in the Avon Eitha (that is, the defendant's colliery), which communicated with and was fed by springs in the neighbourhood. This body