1897 withdrawal of the support previously afforded by the adjacent GREENWELL strata-a support to which, according to the view there taken, v. COAL CO. Bruce J. Low the adjoining owner had abstractedly no right—but the actual BEECHBURN disturbance of his enjoyment of his property which constitutes a wrong and gives a legal ground of complaint. The act of the excavating owner is not tortious in se; it is tortious only when it produces, and, as it seems to me to follow logically, to the extent to which it produces, actual damage." The same view of the nature of the right of action in cases of this character is expressed by the judges in the Court of Appeal in Mitchell v. Darley Main Colliery Co. (1), and in the same case by the majority of the judges in the House of Lords. (2) In the last-mentioned case the defendants in 1867 and 1868 worked a seam of coal lying under and near to the plaintiff's land. A subsidence took place in 1868 and continued until 1871, and cottages of the plaintiff's were damaged by the subsidence. The plaintiff made a claim upon the defendants in respect of that damage, and the defendants repaired the damage, and so satisfied and discharged the cause of action in respect of that damage. Afterwards, without any further working on the part of the defendants, a further subsidence took place in 1882, caused wholly or in part by the defendants' workings in 1867 and 1868, and did further damage to cottages of the plaintiff's. On September 27, 1882, the plaintiff brought an action for this further damage. The defendants pleaded the Statute of Limitations; but it was held in the Court of Appeal and in the House of Lords that the plaintiff was entitled to recover. The judgments of the Master of the Rolls and the other judges of the Court of Appeal in Mitchell v. Darley Main Colliery Co. (1) affirm the principles laid down in the earlier cases to which I have referred. But there are some expressions in the judgment of the Master of the Rolls which the plaintiffs in the present case have relied upon as supporting their contention. The Master of the Rolls says: "What they" (the defendants) "did in excavating was perfectly lawful, if they had taken care that in so using their property they did not hurt him" (the plaintiff); "but in 1868, or immediately afterwards, they (1) (1884) 14 Q. B. D. 125. (2) (1886) 11 App. Cas. 127. 1897 GREENWELL Low COAL CO. Bruce J. did something which did give him a cause of action—that is, they caused his land to subside. . . That cause of action was settled between them when they repaired his houses; but now they have done him a new and wholly independent injury: BEECHBURN they have caused his land to subside again. . . . . They have caused that subsidence by the excavation of the minerals in 1868, and by not having filled up that excavation before 1882. . . . . I cannot help thinking that the judgment of the Lord Chief Justice (1) . . . . examines the whole subject afresh, and gives the most weighty reasons to shew that in such a case as this the only cause of action is the subsidence of the plaintiff's land, and if that subsidence has been brought about by the defendants, whether or not by the omission of something after commission-that is, without taking precautions against the consequences of an act of commission by them—each subsidence is a new cause of action. . . .. I agree with the ... Lord Chief Justice's view that each subsidence is a new cause of action, although the causa causans of each subsidence may be the same. It may be argued that the causa causans is not the same. The causa causans of the first is the excavation; the causa causans of the second is, as a matter of fact, the excavation unremedied, or the combination of the excavation and of its remaining unremedied." (2) It is contended that some of the phrases in the judgment I have quoted support the view that the causa causans of the second subsidence in Mitchell v. Darley Main Colliery Co. (3) was the neglect to fill up the excavation. But I think that the judgment must be read in connection with the facts of the case, and the Master of the Rolls nowhere speaks of the simple neglect to fill up the excavation, or to provide artificial support, as an act of omission of such a character as to give a cause of action. In each case he speaks of the taking away of the support, and the neglect to provide artificial support, as acts which, taken together, operated to cause the subsidence so as to give a right of action. But even if the words can be so construed as (1) In Lamb v. Walker, 3 Q. B. D. 389. (2) 14 Q. B. D. at pp. 129, 133, 134. (3) 14 Q. B. D. 125; 11 App. Cas. 127. v. Low COAL CO. Bruce J. 1897 to lead to the conclusion that the neglect to provide artificial GREENWELL Support of such a character as to prevent the second subsidence was to be regarded as the cause of action, it does not follow BEECHBURN that, because there is an obligation upon a person who has made an excavation of such a character as will, if left without being artificially filled up, cause successive subsidences in his neighbour's land, to prevent the subsidence by providing artificial support, therefore a similar obligation attaches to a person who is merely in possession of the minerals, and has done no act calculated to cause damage to his neighbour. I do not think any of the expressions in the judgment I have referred to support the contention that where a subsidence causing damage to the surface arises from excavations in mines, a person who has not been concerned in making the excavation, and who happens to be in the possession of the mines before and at the time of the subsidence, is liable for the damage caused by the subsidence simply because he did not take measures to arrest the subsidence. It remains to consider the judgment of Lord Blackburn in the same case delivered in the House of Lords. Lord Blackburn dissented from the judgment of the other Judges in the House of Lords, and it is contended that the reasons he gives for his dissent strongly support the contention of the plaintiffs in the present case. The passage relied upon commences near the top of page 144 in the report as printed in 11 Appeal Cases. He refers to an expression used by Bowen L.J. in his judgment in the same case in the Court of Appeal. The Lord Justice had referred to Whitehouse v. Fellowes. (1) In that case the trustees of a turnpike road had constructed a covered drain with catch-pits to carry off the water from the surface of the road into the drain; but, in consequence, as the jury found, of the negligent way in which the catch-pits were constructed and kept, the drain was insufficient to carry off the water, and it was diverted to the plaintiff's land and drowned his colliery. A statute limited the period for bringing an action against the trustees to within three months after the fact committed. The action was brought within three months of the particular (1) (1861) 10 C. B. (N.S.) 765. 1897 v. Low COAL CO. Bruce J. damage complained of, but more than three months after the construction of the drain and catch-pits. It was held that, as GREENWELL an injury was done to the plaintiff by reason of the improper management of the catch-pits, he was not bound to rest his BEECHBURN complaint upon the original construction of the works; but that the continuance by the defendants of that negligent and improper condition of the road under their charge, if accompanied by fresh damage to the plaintiff, constituted a fresh cause of action. Bowen L.J., in Mitchell v. Darley Main Colliery Co. (1), says: "Applying the reasoning of Whitehouse v. Fellowes (2), it seems to me that there has really been, not merely an original excavation or act done, but a continual withdrawal of support-that is to say, not merely an original act the results of which remain, but a state of things continued, and a state of things continued which has led to and caused the subsequent damage." Lord Blackburn, referring to that passage, says: "If I could take that view of the facts I should agree in the conclusion. But I cannot take that view of the facts." (3) It seems to be clear why he could not take that view of the facts. During the argument of the case in the House of Lords a statement was agreed to in writing between the appellants' and respondent's counsel, and part of that statement was as follows: "That after the partial subsidence in 1868 the strata remained practically quiescent until the working of the coal in the next adjoining land in 1881." (4) After that statement had been agreed upon, it was, I think, impossible to treat the case as if the facts proved had shewn that there had been a continual withdrawal of support. Then Lord Blackburn proceeds to point out what in his opinion would be the consequence of assuming that in all cases of successive subsidences there had been a continual withdrawal of support. He says: "One consequence of doing so would be that where the owner in fee of a seam of coal worked it out, and died leaving it in this state, the heir of the land in which the worked-out seam lay would be liable to an action for continuing a nuisance. Surely the facts cannot be such as would produce that effect. (1) 14 Q. B. D. at p. 138. (3) 11 App. Cas. at p. 144. 1897 GREENWELL v. Low COAL CO. Bruce J. And unless they are, I do not think that they can make the defendants responsible on this ground." (1) In that passage Lord Blackburn is not, I think, to be understood as saying that BEECHBURN any such consequences follow from the judgment of the House. He did not agree with the law as laid down in that judgment. He did agree with the conclusion of law laid down by Bowen L.J. in the passage he referred to, but he could not agree in the view of the facts upon which that conclusion was founded. And he points out what would be, in his opinion, the consequence of holding the defendants liable upon the assumption of fact that there had been a continual withdrawal of support. When the passage of Lord Blackburn's judgment is carefully examined it seems to me that it does not afford support to the contention that such consequences as he mentions follow from holding the Darley Main Colliery Company liable upon the grounds upon which the House of Lords held them liable. It remains to consider whether, on the general principles of law, the defendants can be rendered liable upon the ground that they have allowed a nuisance to continue on their land which has caused damage to the defendants. It is upon this principle that the learned writer of a valuable text-book on the Law of Support contends that the person in possession of the mines at the time when the subsidence took place may be rendered liable for the damage caused by the subsidence: Banks on Support, pp. 5-7. There is a dictum of Littledale J. in the case of Laugher v. Pointer (2), which is frequently quoted. That very learned judge, in the course of his judgment, says: "And the rule of law may be that in all cases where a man is in possession of fixed property he must take care that his property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants or by contractors or their servants. The injuries done upon land or buildings are in the nature of nuisances, for which the occupier ought to be chargeable when occasioned by any acts of persons whom he brings upon the premises." The (1) 11 App. Cas. at P. 144. (2) (1826) 5 B. & C. 547, at p. 560. |