This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Tidal waters and navigable rivers.
(s) Devonshire (Duke of) v. Pattenson, (1887) 20 Q. B. D. 263; 57 L. J. Q. B. 189; and see Ecroyd v. Coultard, 1898, 2 Ch. 358; 67 L. J. Ch. 458.
(t) Dwyer v. Mich, (1870) 4 Ir. R. C. L. 424.
(u) Micklethwait v. Newlay Bridge Co., (1886) 33 Ch. D. 133; 55 L. T. 336. Cf. Mellor v. Walmesley, 1905, 2 Ch. 165.
(x) lb. (y) Ecroyd v. Coultard, sup.
(z) Coulson and Forbes on Waters, 4th ed. p. 99.
(a) A.-g. v. Earl of Lonsdale, (1868) 7 Eq. 377; 38 L. J. Ch. 335; Orr-ewing v. Colquhoun, (1877) 2 A. C. 839; Smith v. Andrews, 1891, 2 Ch. 678; and see 4 Macph. (H. L.) 44; Booth v. Ratte, (1890) 15 A. C. 188; 59 L. J. C. P. 41.
(b) Coulson and Forbes, pp. 100, 101; Johnstone v. O'neill, 1911, A. C. 552, 578.
Every landowner, independently of prescription, and as an original right incident to property, is entitled to so much lateral support from his neighbour's land as is necessary to keep his soil in its natural state (e); but he has no prima facie right to burden his own land by buildings, and then to require an extraordinary amount of support by his neighbour's land (f). If, however, his buildings, though of recent erection, do not contribute to the subsidence - that is to say, if the facts show that the subsidence would have occurred independently of any buildings, - he is entitled to full damages in case of their being destroyed or injured by subsidence caused by subterranean workings under the adjoining land (g). And it seems that the right to extraordinary support is an easement coming within the provisions of the Prescription Act (h), and that such a right may, therefore, be acquired by twenty years' enjoyment for a building proved to have been newly built, or altered so as to increase the pressure at the beginning of that time (i). The grant of such an easement, moreover, may be implied; for a vendor on selling part of his land is presumed to grant such a measure of support from his adjacent land as is necessary for the land sold in its then condition, or when applied to the purpose for which the grant was expressly made. The precise measure of such support depends upon the special circumstances of each case (7c). So, where houses are built on land belonging to the same owner, and are then sold to different purchasers, or some are sold and others retained by the landowner, the right to mutual support will be presumed, by way of reservation or grant in the several conveyances (I). But where two adjoining plots or houses belonging to the same owner are sold at different times, the usual presumption under which the second purchaser would be entitled to lateral support may be rebutted by the existence of stipulations subject to which he purchased and which are inconsistent with it (m). The reservation of an easement of support may be implied in favour of the grantor where the easement is one of necessity, but, it seems, not otherwise (n).
Right of lateral support.
How the right may be acquired.
(c) Coulson and Forbes, 4th ed. p. 369.
(d) A.-g. v. Chambers, (1854) 4 De M. & G. 206; 23 L. J. Ch. 662; A.-g. v. Emmerson, 1891, A. C. 649; 65 L. T. 564. As to the title to lands gained from the sea, either by alluvion or dereliction, and either by natural or artificial causes, see A.-g. v. Chambers, (1859) 4 D. & J. 55; 23 L. J. Ch. 662; Mellor v. Walmesley, 1904, 2 Ch. 525; 52 W. R. 665; Mercer v. Denne, 1905, 2 Ch. 164. As to the right of the owner of the foreshore to remove shingle, see A.-g. v. Tomline, (1880) 14 Ch. D. 58; 49 L. J. Ch. 377. As to the title to foreshore in Cornwall, see Mayor of Penryn v. Holm, (1877) 2 Ex. D. 328; 46 L. J. Ex. 506. As to the proper method of determining the boundary of the foreshore of a tidal river, see Darling's Trustees v. Caledonian R. Co., (1904) 5 F. 1001 - Ct. of Seas. As to the rights of the public over the foreshore, see Brinckman v. Matley, (1904) 73 L. J. Ch. 642; Llandudno V. D. C. v. Woods, 1899, 2 Ch. 705; Behrens v. Richards, 1905, 2 Ch. 614.
(e) Hunt v. Peake, (1860) John. 705; 29 L. J. Ch. 785; Rowbotham v. Wilson, (1857) 8 E. & B. 123. 27 L. J. Q. B. 61. This right is confined to such an extent of adjacent land as in its natural and undisturbed state is sufficient to afford the requisite support: Corp. of Birmingham v. Allen, (1877) 6 Oh. D. 284; 46 L. J. Ch. 673; and see Howley Park Coal & Cannel Co. v.. L. & N. W. R. Co., 1913, A. C. 11.
(f) Harris v. Ryding, (1839) 5 M. & W. 60; Humphries v. Brogden. (1850) 12 Q. B. 739; Jefries v. Williams, (1850) 5 Ex. 792; 29 L. J. Ex. 14; Smart v. Morton, (1855) 5 E. & B. 30; 24 L. J. Q. B. 60.
(g) Brown v. Robins, (1859) 4 H. & N. 186; 28 L. J. Ex. 250; Stroyan v. Knowles, (1861) 6H. & N. 454; 30 L. J. Ex. 102; Goddard. 8th ed. p. 470.
(h) See Dalton v. Angus, (1881) 6 A. C. 740; 50 L. J. Q. B. 689, where the point was left open; Lemaitre v. Davis, (1881) 19 Ch. D. at p. 291; and see Union Lighterage Co. v. South Graving Dock Co., 1902, 2 Ch. 557; 71 L. J. Ch. 791; Gale, 10th ed. p. 365 et seq.
(i) Dalton v. Angus, sup.
(k) Cal. R. Co. v. Sprot, (1856) 2 Macq. 449; 4 W. E. 659; Row-botham v. Wilson, (1860) 8 H. L. C. 348; 30 L. J. Q. B. 49; Roberts v. Haines, (1856) 6 E. & B. 643; 25 L. J. Q. B. 353; Haines v. Roberts, (1857) 7 E. & B. 625; 27 L. J. Ex. 49; Cal. R. Co. v. Ld. Belhaven, (1860) 3 Macq. 56; 29 L. T. (O. S.) 286; Backhouse v. Bonomi, (1861) 9 H. L. C. 503; 34 L. J. Q. B. 181; Smith v. Darby, (1872) L. R. 7 Q. B. 716; 42 L. J. Q. B. 140; Siddons v. Short, (1877) 2 C. P. D. 572; 46 L. J. C. P. 795; Rigby v. Bennett, (1882) 21 Ch. D. 559; 48 L. T. 47.
(l) Richards v. Rose, (1853) 9 Ex. 218; 23 L. J. Ex. 3; Gayford v. Nicholls, (1854) 9 Ex. 702; and cf. Howarth v. Armstrong, (1897) 77 L. T. 62.
(m) Murchie v. Black, (1865) 19 C. B. N. S. 190; 11 Jur. N. S. 608; Goddard, 8th ed. 291.
When the right of support is interfered with by the withdrawal from the adjoining land of the necessary supporting strata, no right of action accrues until some actual damage has resulted (o); but it seems that the damage need not be pecuniarily appreciable (p). If, however, the party withdrawing the support insists that he has a right to do so, without being liable for any damage resulting therefrom, he may, it seems, be restrained by injunction, though no actual mischief has occurred (q). Each fresh subsidence is itself a new cause of action. Thus, where a subsidence takes place for which compensation is made, and no further working takes place, but subsequently a fresh subsidence occurs owing to workings by an adjacent mineowner, the Statute of Limitations is no bar to an action for the injury done by the fresh subsidence, though it occurs many years after the original subsidence (r). The owner of mines, however, is not liable for damage to the surface occurring during his ownership but caused by the working of one of his predecessors in title (s). It follows from the rule that the withdrawal of support does not give rise to a right of action until damage has resulted, that in assessing the damages recoverable by a surface owner for subsidence owing to the working of the minerals under or adjoining his property, the depreciation in market value attributable to the risk of future subsidence must not be taken into account (t).