may be erected upon it, the mineral and mining rights being reserved to the grantor, is entitled to support from the adjacent and underlying soil, not only for his land but for the buildings upon it. But independent and apart from any such provision, the rule deducible from the authorities seems to be that surface support is due to the land in the condition at the time the severance takes place, and if the support is sufficient for that purpose any heavy buildings placed thereon, in the absence of such a contract as just mentioned, would be at the risk of the builder. These matters are sometimes controlled in England by legislative enactment. Thus, where an act of parliament authorizes canal owners, for instance, to prevent adjoining land-owners from operating their mines within ten yards of the canal, the canal company may restrain such operation, but not without compensation to the land-owners. And this compensation extends not only to the value of the coal in the bed, but also for profit which could only be made by digging the coal. ARTICLE C. Subjacent and Adjacent Support — Customary and Natural Rights. 1040. Adjacent and subjacent support. 1041. In general no right to destroy the surface under any circumstances. 1042. Controlled by the contract of severance, but affected by custom. 1043. Bad custom will not warrant injury. § 1040. Adjacent and subjacent support.- The doctrine we have attempted to outline in the preceding sections with reference to surface support in general applies with equal force to adjacent and subjacent support, and the rule deducible from the law is, with reference to the matter in hand, that, independent of contract, the general duties imposed 1 Northeastern R. R. Co. v. Elliott, 2 De Gex, F. & J. 423; affirmed, Elliott v. Northeastern R. R. Co., 10 H. L. Cas. 333, 9 Jur. (N. S.) 555. 2 See ante, § 1020, note 1, p. 861. 8 Midland Ry. Co. v. Checkley, L. R. 4 Eq. 19. 4 Barnsley Canal Co. v. Twibell, 7 Beav. 19, 13 L. J. M. S. Ch. 434. upon the miner, especially in coal regions, where there may be different estates in the same bed or vein, are not to mine his vein entirely to the line, nor yet to dig pits in the floor or foot-wall and thus injure the subjacent proprietor.1 1041. In general no right to destroy the surface under any circumstances. It seems equally clear and well settled that the right of surface support, likewise of lateral and subjacent support, are matters of natural right; and before it can be said that they are lost, the instrument by and under which the claim is made must make the right clearly appear, or it will be presumed not to exist.2 § 1042. Controlled by the contract of severance, but affected by custom.- Where the severance is created by contract or other paper writing separate from and independent of the duty which the law enjoins, the rights of the parties will generally be measured and controlled by the writing itself. But custom will assist in the interpretation 1 Elliott v. Northeastern Ry. Co., 10 H. L. Cas. 333, 9 Jur. (N. S.) 555, 11 W. R. 604: Jeffries v. Williams, 5 Ex. 792, 1 Eng. L. & Eq. 433; Wyatt v. Harrison, 3 B. & Ad. 871; Nicklin v. Williams, 23 L. J. (N. S.) Exch. 335; 26 Eng. L. & Eq. 549. See also S. C., 10 Exch. 259; Backhouse v. Bonomi, 9 H. L. Cas. 503; Richards v. Jenkins, 18 L. T. Rep. (N. S.) 438; Hendricks v. Spring Valley M. & I. Co., 58 Cal. 190; Gilmore v. Driscoll, 122 Mass. 199; Victor M. Co. v. Morning Star M. Co., 50 Mo. App. 525; Thomas Iron M. Co. v. Allentown, 28 N. J. Eq. 27; Lord v. Carbon Iron Mfg. Co., 38 N. J. Eq. 452. 2 Dixon v. White, 8 App. Cas. 833 (H. L. Sc.), citing and approving Rowbotham v. Wilson, 8 El. & Bl. 123, 8 H. L. Cas. 348; Andrew v. Buchanan, L R. 2 H. L. Sc. 286; Aspden v. Sedden, L. R. 10 Ch. 394. See also Caledonian Ry. Co. v. Belhaven, 3 Macq. H. L. Cas. 56, 3 Jur. (N. S.) 573; London & Northwestern Ry. Co. v. Ackroyd, 31 L. J. Ch. 588, 8 Jur. (N. S.) 911, 10 W. Rep. 367; Humphreys v. Brogden, 5 Q. B. 739; Robertson v. Youghiogheny R. Coal Co., 172 Pa. St. 566, 33 Atl. Rep. 706. 3 Davis v. Trehearne, 6 L. R. 460; Coleman v. Chadwick, 80 Pa. St. 81; Jones v. Wagner, 66 Pa. St. 429; Harris v. Ryding, 5 M. & W. 60; Robertson v. Youghiogheny River Coal Co., 172 Pa. St. 566,33 Atl. Rep. 306; Prindell v. Vesta Coal Co., 172 Pa. St. 438,33 Atl. Rep. 690; Burgner v. Humphrey, 41 Ohio St. 340; Carlin v. Chappel, 101 Pa. St. 348; Mickle v. Douglass, 75 Iowa, 78, 39 N. W. Rep. 198. of the contract and in fixing the rights of the parties.1 But customary mining means that the ordinary precautions usually taken in mining are to be observed.2 The rule was thus clearly stated by the supreme court of Pennsylvania in a late case: "If the owner of the coal undertakes to mine and remove it,- as he has an undoubted right to do, and damage results to the surface, either (a) from negligence in conducting his mining operations, or (b) from failure to properly and sufficiently support the surface, or (c) from both these causes combined, the surface owner is entitled to recover compensation for such injury as he may show he has sustained." § 1043. Bad custom-Will not warrant injury.— But from the general rule that a custom, to be effectual for any purpose, must be reasonable in itself, and of such long standing as to justify the conclusion that all people in the vicinity know of it and act with reference to it, flows the principle that bad customs, as a general rule, have no force, will not warrant injury, nor justify, in all cases, a departure from the duty to leave surface support. Moreover, no custom can be invoked to set aside a special contract, but only to interpret it." 1 Curtis v. Daniel, 10 East, 272; Wakefield v. Buccleuch, L. R. 4 Eq. 613; Bell v. Earl of Dudley, 13 Rep. (Jan. 1895), 272, 1 Ch. 182; Beatty v. Gregory, 17 Iowa, 109; Hecksher v. Sheaffer (Pa.), 14 Atl. Rep. 53; Jones v. Wagner, 66 Pa. St. 429; Carter v. Philadelphia Coal Co., 77 Pa. St. 286. 2 Youghiogheny River Coal Co. v. Hopkins, 198 Pa. St. 343, 48 Atl. Rep. 19, Horner v. Watson, 79 Pa. St. 242; Coleman v. Chadwick, 8 Pa. St. 81. Pringle v. Vesta Coal Co., 172 Pa. St. 438, 33 Atl. Rep. 690, citing (q. v.) Jones v. Wagner, supra; Horner v. Watson, supra; Coleman v. Chadwick, supra; Carlin v. Chappel, 101 Pa. St. 348. 4 Broadbent v. Wilks, 1 Willes, 360; Blackett v. Bradley, 1 B. & S. 940; Hilton v. Granville, 5 Q. B. 701; Blewett v. Tregonning, 3 Ad. & El. 554; Constable v. Nicholson, 14 C. B. (N. S.) 230. 5 Randolph v. Halden, 44 Iową 327. CHAPTER VI. OF WATER RIGHTS AND DRAINAGE. § 1050. Water, common enemy - Drainage - Flooding. 1051. When not liable for flooding-Liable for direct acts - Not gen erally for omission, unless negligent. 1052. The servitude which the lower mine owes to the upper and to the surface - Pumping or turning water into mine. 1053. Limitations and exceptions - Liable for negligence. 1054. Rights and duties of the upper mine owner-So use your own as not to injure others. 1055. Upper miner must not interfere with barriers. 1056. Liable for negligence. 1057. An example of the rule by Mr. Bainbridge - Not liable in ab sence of negligence. 1058. What seems to be the true rule deducible from the authoritiesHighest proprietor must use reasonable diligence - Not liable for injury resulting from natural causes. 1059. Working to boundary-Extent of liability for. 1060. Not generally liable for natural flow. 1061. Extreme doctrine in England - Owner liable for all damages. 1062. Statutory barriers - Constitutionality upheld. § 1050. Water, common enemy - Drainage - Flooding. Pursuing the principle discussed in the last subdivision relating to the duties, and in some cases servitudes, which one estate owes to another, there are circumstances in mining, where water, instead of being a necessity as elsewhere considered, becomes a source of menace and trouble, and thereby a common enemy, against which each proprietor is bound to make for himself proper provisions for drainage and against flooding. This rule is confined strictly to water coming into the mine in a natural way and in the ordinary course of mining. The authorities in the foot-note unite in saying that the application of the above principle in all its bearings forbids one to bring upon his own land on or below the surface, by aqueduct or by pumping, any water which he permits to flow upon and injure his neighbor. If the injury is the result wholly of natural causes, no liability results, but if from the act of the party, of course he is liable.1 - § 1051. When not liable for flooding-Liable for direct acts Not generally for omission unless negligent.And while the adjoining or upper miner must not wantonly, wilfully or negligently flood his neighbor's mine,2 there is a servient duty placed upon the lower proprietor by the law to care for, without compensation, the water which comes to him in the ordinary course of seepage and gravitation, and for that the upper or adjacent proprietor is not liable.3 This is but enlarging upon the controlling principle set down in the last preceding section. One miner may not turn or pump his water into his neighbor's mine, but he is not liable if it goes there by seepage or gravitation if induced or accelerated by no act of his. 1 Rylands v. Fletcher, L. R. 3 H. L 330, affirming Fletcher v. Rylands, 2 App. Cas. 781; Smith v. Kenrick, 7 C. B. 515; Baird v. Williamson, 15 C. B. (N. S.) 376; Firmstone v. Wheeley, 2 Dowl. & L. 303, 13 L. J. (N. S.) Ex. 361; Clegg v. Deardon, 12 Q. B. 576, 17 L. J. (N. S.) 233; Crompton v. Lea, L. R. 19 Eq. 115; Duke of Beaufort v. Morris, 6 Hars 340; Attorney-General v. Council of Birmingham, 4 K. & J. 548; Bentz v. Armstrong, 8 W. & S. 40: Marritt v. Parker, Coxe, 460; Williams v. Gale, 3 Har. & J. 231; Harker v. Kenrick, 13 C. B. 187; Jegon v. Vivian, 6 Ch. App. 742; Shafto v. Johnson, 8 B. & S. 252. 2 Bainb. Mines (1st Am. ed.), p. 460; Trower v. Chadwick, 6 Bing. N. C. 1,8 Scott, 1; Lord v. Carbon Iron Mfg. Co., 38 N. J. Eq. 452; Fletcher v. Rylands, L. R. 1 Ex. 265, 3 H. & C. 774; affirmed, Rylands v. Fletcher, L. R. 3 H. L. 330; Firmstone v. Wheeley, 2 Dow. & L. 203; Smith v. Kenrick, 7 C. B. 515; AttorneyGeneral v. Council of Birmingham, 4 Kay & J. 528; Phillips v. Humphrey, L. R. 6 Ch. App. 770; Crompton v. Lea, L. R., 19 Eq. 115. 3 Bainb. Mines (1st Am. ed.), pp. 455, 456, 460; Smith v. Kenrick, 7 C. B. 515, 18 L. J. (N. S.) 172; Tenant v. Goldwin, 1 Salk. 360; Lord v. Carbon Iron M. Co., supra; Phillips v. Humphrey, L. R. 6 Ch. App. 770; Baird v. Williamson, 15 C. B. (N. S.) 376; Fletcher v. Smith, L. R. 2 App. Cas. 781; Nichols v. Marshland, L. R. 10 Ex. 255; Jegon v. Vivian, L. R. 6 Ch. App. 742; Crompton v. Lea, L. R. 19 Eq. 115; Jones v. Robertson, 116 Ill. 543. |