We do not see how this case can be distinguished in principle from that of Davenport v. Lamson, nor indeed from the general doctrine upon the subject; and sufficient matters are stated in the case as facts to settle this question without submitting it to the jury.
It does not relieve the plaintiff that the defendant did not resist his passing, on the ground that he was going to lots beyond the Bean lot. No doubt both parties understood the object of the plaintiff, but the defendant was not obliged to state the reasons why he objected. If he was in the wrong, he was answerable; and if in the right, he was not called upon to show his reason. It was quite as incumbent on the plaintiff to state that he was not going to the Mountain pasture, as for the defendant to object to his using the way on that ground.
The fact, also, that the defendant had permitted the sheep to be driven over the way to the pasture about a week before, and that he had been paid for it, does not aid the plaintiff. His going there under those circumstances gave him no right to pass over the way on the day of the trespass, nor had this fact any tendency to show a right.
When the plaintiff was on the way, using it for an unauthorized purpose - the purpose of going to the Mountain pasture to salt his sheep, wherever they might be - the defendant had the right to stop him.
The court ordered a verdict for the defendant; and upon the question which we have considered, we think they were right, and there must be Judgment on the verdict.
b. Lateral and subjacent support.
(I.) Lateral Support.
122 Massachusetts, 199. - 1877.
Gray, C. J. - The right of an owner of land to the support of the land adjoining is jure nature, like the right in a flowing stream. Every owner of land is entitled, as against his neighbor, to have the earth stand and the water flow in its natural condition. In the case of running water, the owner of each estate by which it flows has only the right to the use of the water for reasonable purposes, qualified by a like right in every other owner of land above or below him on the same stream. But in the case of land, which is fixed in its place, each owner has the absolute right to have his land remain in its natural condition, unaffected by any act of his neighbor; and, if the neighbor digs upon or improves his own land so as to injure this right, may maintain an action against him, without proof of negligence.
But this right of property is only in the land in its natural condition, and the damages in such an action are limited to the injury to the land itself, and do not include any injury to buildings or improvements thereon. While each owner may build upon and improve his own estate at his pleasure, provided he does not infringe upon the natural right of his neighbor, no one can by his own act enlarge the liability of his neighbor for an interference with this natural right. If a man is not content to enjoy his land in its natural condition, but wishes to build upon or improve it, he must either make an agreement with his neighbor, or dig his foundations so deep, or take such other precautions, as to insure the stability of his buildings or improvements whatever excavations the neighbor may afterwards make upon his own land in the exercise of his right.
In 2 Rol. Ab. 564, it is stated that in Wilde v. Minsterley, in 15 Car. 1, it was decided in the King's Bench, after a verdict for the plaintiff, that "if A. be seised in fee of copyhold land next adjoining to the land of B., and A. erects a new house upon his copyhold land, and some part of the house is erected upon the confines of his land next adjoining to the land of B., and B. afterwards digs his land so near to the foundation of A.'s house, but no part of A.'s land, that thereby the foundation of the house and the house itself fall into the pit, yet no action lies by A. against B., because it was A.' s own fault that he built his house so near the land of B., for he by his act cannot hinder B. from making the best use of his own land that he can.
But it seems that a man who has land next adjoining to my land cannot dig his land so near my land that thereby my land shall go into his pit; and, therefore, if the action had been brought for this, it would lie."
In the same court, in 15 Car. 11, Justices Twisden and Windham said that it had been adjudged that, "If I, being seised of land, lease forty feet thereof to A. to build a house thereon, and other forty feet to B. to build a house, and one of them builds a house, and then the other digs a cellar in his land, whereby the wall of the first house adjoining falls, no action lies for that, because each one may make the best advantage of his digging," "but it seemed to them that the law is otherwise, if it was an ancient wall or house that falls by such digging." Palmer v. Fleshees, 1 Sid. 167. In another report, the corresponding statement is that" it was adjudged that two having ground adjoining, the one built de novo, and the other in his ground digged so near, that the other fell, and no remedy, the house being new." Palmer v. Flessier, 1 Keb. 625. * * *
There are indeed two or three early cases, in which actions appear to have been sustained for undermining houses by digging on adjoining land. Slingsby v. Barnard, 14 Jac. 1, 1 Rol. R. 430; Smith v. Martin, 23 Car. 11, 2 Saund. 400; Barwell v. Kensey, 35 Car. 11, 3 Lev. 171; s. c. 1 Mod. Entr. 195. But in Slingsby v. Barnard, and in Smith v. Martin, the objections made were not to the right to maintain the action, but only to particulars in the form of the declaration; and in Barwell v. Kensey the declaration, as construed by the majority of the court, alleged not merely digging near the plaintiff's foundation, but digging that foundation itself.
In Tenant v. Goldwin, 2 Ld. Raym. 1089-1094, Lord Holt and Justice Powell are reported to have "held that a man cannot build so near another man's house as to throw it down." But the only point adjudged was the same as in Ball v. Nye, 99 Mass. 582, that a man is bound, of common right, to keep a vault upon his own land in repair, so that the filth shall not flow upon his neighbor's land, "for he whose dirt it is must keep it that it may not trespass." s. c. 1 Salk. 360, 361; 6 Mod. 311; 1 Salk. 21; Holt, 500. And upon a comparison of the various reports it is evident that the digging so near another's wall as to weaken it was not spoken of as giving a right of action to the owner of the wall, but as limiting his liability for the escape of filth caused by the new digging.