The plaintiff acquired, as a right of property, that there should be left of the minerals, in their place under the land, sufficient to support the surface in its natural state. This was the extent of his right to subjacent support, there being no buildings upon the land when Parks conveyed to Downs, nor the erection of any, one of the purposes in their contemplation. Cal. R. IV. Co. v. Sprot, supra. The defendant lays stress upon the small consideration given for the land. The right to support is without regard to the comparative value of the strata. Humphries v. Brogden, 12 Q. B. 739. This right to sufficient subjacent support is likened sometimes to that to have lateral support to land. In that case, all which can be claimed is, that the adjacent owner shall not so dig upon his land as that of his neighbor shall fall into his pit. If the weight of the buildings, of late erected by his neighbor on his land, causes it to slide, when of its own weight it would not, there is no claim for redress. Lasala v. Holbrook, 4 Paige, 169. Is it not the same rule, that whatever an adjacent owner can do upon or in his own land, confined within that, and necessary for the convenient and beneficial enjoyment of it, which works no physical injury to his neighbor's possession in its natural state, he may do without liability to his neighbor, although it may work physical injury to a building lately erected thereon by his neighbor? For in Humphries v. Brogden, supra, the reason is given, that an owner cannot by putting an additional weight upon his own land, and so increasing the lateral pressure upon his neighbor's land, render unlawful any operation thereon which before would have caused no damage. Is this exemption from liability confined to a case of lateral pressure? If he may so dig as that the building shall topple down, and not be liable so long as that but for the building, the earth would not have fallen in; may he not so blast in digging as that the building shall shake, crack and crumble, without giving cause of action, so long as that the surface of his neighbor's ground is not injured or disturbed, though it be shaken? He is not bound to support the building, so long as he affords a support sufficient for the soil without the building. He is not bound to refrain from digging in his own land, so soon as he comes near the limit of support for his neighbor's building, not an ancient one. He is not bound to be circumspect in his means of digging, so long as they do not affect badly his neighbor's land. Is he bound to refrain from the use of the means which do not injure his neighbor's land, for that they badly affect a modern house thereon? In our judgment he is not. See Smith v. Thackerah, Law Rep. 1 C. P. 564. Whatever it is necessary for him to do for the profitable and beneficial enjoyment of his own possession, and which he may do with no effect to the adjacent surface in its natural state, that he may do though it harm erections lately put thereon. As the rights and relations of adjacent owners and those of superjacent and subjacent owners are alike, so may the subjacent owner do beneath the surface what the adjacent owner may do beside it. And where, as in Harris v. Ryding, supra, learned judges of the subjacent owner not being entitled to let down the surface or injure the enjoyment of it, they mean the surface in its natural state, and not with additions to it in buildings not ancient. And see Partridge v. Scott, 3 M. & W. 220.
50 New York, 639. - 1872.
Rapallo, J. - The deed from Everard Peck to the plaintiff states that the wall in controversy was, at the time of the conveyance, being erected by Peck, as the west wall of a block of stores. The centre line of the wall is, by the deed, made the easterly boundary of the land conveyed, which includes the land on which the westerly half of the wall stands. It appears that Peck's stores were afterward completed, and the plaintiff erected a building upon his own lot, using the wall as a party-wall, and inserting in it the joists of his building. Peck afterward conveyed to the defendant, who made the addition to the height of the wall.
We think that the language of the deed and the acts of the parties show that it was their intention that the wall should be a party-wall for the common use of both lots. The deed states that Peck was at the time erecting the wall, half of which was conveyed, and that it was to be the west wall of his block. This implies that the wall was not then completed, and that Peck was to have the right to complete it and use it as the west wall of his block. If the deed is to be treated as an absolute conveyance, free from any reservation, easement or privilege in the co-owner of the wall, Peck would have had no right to proceed to complete it, or, at least, that part which was beyond his line, after the conveyance. It cannot be supposed that any such was the intention of the parties. Subsequently to this conveyance the wall had been used for more than twenty years as a party-wall.
Although land covered by a party-wall remains the several property of the owner of each half, yet the title of each owner is qualified by the easement to which the other is entitled; and an important question in this case is whether such easement includes the right to increase the height of the wall, provided such increase can be made without detriment to the strength of the wall or to the property of the adjacent owner.
This question, in the absence of statutory regulations upon the subject, does not seem to have been distinctly settled by authority; but the fact appears in several of the cases relating to party-walls that the height has been increased, and there is no intimation that such increase was unlawful. Watt v. Hawkins, 5 Taunton, 20, was an action of trespass. The plaintiff had added to the height of a party-wall, and the defendant tore down the addition, for which injury the plaintiff brought trespass. The only point decided was that the parties were not tenants in common of the land, and there fore the action of trespass could be maintained. In Campbell v. Mesier, 4 Johns. Ch. 334, a party-wall, standing equally on two lots, having become ruinous, the owner on one side, against the will and in spite of the prohibition of the adjacent owner, pulled down the wall and rebuilt it higher than it was originally. It was held that the adjacent owner was bound to contribute to the expense of the new wall, but not to the extra expense of making it higher than the old. There is no intimation in the case that the increase of height was wrongful. In Partridge v. Gilbert, 15 N. Y. 601, the new wall built by the defendant was not only higher, but its foundations were deeper, than the old wall which it replaced. The right to make these additions was not, however, discussed in the case, and perhaps there was no occasion to discuss it; the action being brought by the tenant of the adjacent lot, whose goods were injured in making the repair, and not by the owner.