Upon a question of this kind, affecting all the lands in the commonwealth, it would be unjustifiable and mischievous for the court to change a rule of law which has been established and acted upon here for sixty years. Even in England, it is held that for digging upon neighboring land, and thereby causing the plaintiff's land to sink and his building to fall, although the jury find that the land would have sunk if there had been no building upon it, yet no action will lie, if no appreciable damage is proved to the land without the building. Smith v. Thackerah, L. R. 1 C. P. 564.
The weight of American authority is in accordance with the decisions of this court. It has generally been considered that for an excavation causing an injury to the soil in its natural state an action would lie; but that, without proof of a right by grant or prescription in the plaintiff, or of actual negligence on the part of the defendant, no action would lie for an injury to buildings by excavating adjoining land not previously built upon. Panton v. Holland, 17 Johns. 92; Lasala v. Holbrook, 4 Paige, 169; Hay v. Cohoes Co., 2 Comst. 159, 162; McGuire v. Grant, 1 Dutcher, 356; Richart v. Scott, 7 Watts, 460; Richardson v. Vermont Central Railroad, 25 Vt. 465; Beard v. Murphy, 37 Vt. 99, 102; Shrieve v. Stokes, 8 B. Mon. 453; Charless v. Rankin, 22 Mo. 566.
It is difficult to see how the owner of a house can acquire by prescription a right to have it supported by the adjoining land, inasmuch as he does nothing upon land has no use of that land, which can be seen or known or interrupted or sued for by the owner thereof, and therefore no assent of the latter can be presumed to the acquirement of any right in his land by the former. The English cases are founded on an analogy to the doctrine of ancient lights, which is not in force in this country. Hide v. Thornborough, 2 Car. & K. 250, 255, and Stansell v. Jollard, there cited; Solomon v. Vintners' Co., 4 H. & N. 585, 599, 602; Chasemore v. Richards, 7 H. L. Cas. 349, 385, 386; Greenleaf v. Francis, 18 Pick. 117, 122; Keats v. Hugo, 115 Mass. 204, 215; Richart v. Scott, 7 Watts, 460, 462; Napier v. Bulwinkle, 5 Rich. 311, 324. But this case does not require us to determine that question, because there is no evidence that the structures and improvements upon the plaintiff's land have been there for twenty years.
Nor is it necessary to consider whether negligence on the part of the defendant could enlarge the measure of his liability; because the case stated does not find that he was negligent, nor set out any facts from which actual negligence can be inferred. The cause of action is that the plaintiff has an absolute right to have her soil stand in its natural condition, and that any one who injures that right is a wrongdoer, independently of any question of negligence. Foley v. Wyeth, 2 Allen, 131, 133; Hay v. Cohoes Co., 2 Comst. 159, 162; Richardson v. Vermont Central -Railroad, 25 Vt. 465, 471; Humphries v. Brodgen, 12 Q. B. 739.
The fact that the defendant was not the owner of the adjoining land affords him no exemption. It was never considered necessary, in an action of this kind to allege that the defendant owned or occupied the land on which the digging was done that injured the plaintiff's soil. Smith v. Martin, 2 Saund. 400, and note; Nicklin v. Williams, 10 Exch. 259. Even an agent of the owner of the adjoining land would be liable for his own negligence and positive wrongs; for his principal could not confer upon him any authority to commit a tort upon the property or the rights of another. Bell v. Jos-selyn, 3 Gray, 309; Story on Agency, § 311. And, upon the case stated, the defendant appears not to have been an agent of the owner of the land, but to have removed the soil therefrom for his own benefit, by permission of Gillighan, who had a like agreement with and license from the owner; and it is at least doubtful whether the owner of the land could be held responsible for the defendant's acts. Gayford v. Nicholls, 9 Exch. 702 ; Hilliard v. Richardson, 3 Gray, 349.
The case finds that the defendant ceased his work towards the end of October, and left the bank in such a shape that by the effect of rains and frost it was rendered insufficient to hold the soil of the plaintiff in its natural condition, and began to give way at once, although the plaintiff's soil was not actually disturbed till the month of March following. The necessary inference is that by the operation of natural and ordinary causes upon the land as it was left by the excavations of the defendant, and which he took no precaution to guard against, part of the soil of the plaintiff's land slid and fell off; and for the injury so caused to her soil this action may be maintained. But she cannot maintain an action for the injury to her fences and shrubbery, because her natural right and her corresponding remedy are confined to the land itself, and do not include buildings or other improvements thereon. * * *
Judgment for plaintiff.
(2.) Subjacent Support.
55 New York, 538. - 1874.
Folger, J. - The ultimate principles upon which the decision of this case should rest, are not undetermined nor obscure. The relative rights and duties of owners of superjacent lands, and of subjacent minerals, have been much discussed and passed upon. Then, too, the position of adjacent owners of land is an analogous one, and the rules which have been laid down, as to them, and often enforced, throw light upon the questions arising here. * * *
A reserve of minerals and mining rights, is construed as is an actual grant thereof. It differs not, whether the right to mine is by an exception from a deed of the surface, or by a grant of the mine by the owner of the whole estate, therein reserving to himself the surface. Shep. Touch. 100; Dand v. Kingscote, 6 M. & W. 174; Williams v. Bagnall, 15 Week. R. 272; see Wickham v. Hawker, 7 M. & W. 78; and comment thereon in Proud v. Bates, 34 L. J. Chanc. -, 406; s. c. 5 Am. Law Reg. N. S. 171-174. A reservation of minerals and mining rights from a grant of this estate, followed by a grant to another of all that which was first reserved, vests in the second grantee an estate as broad as if the entire estate had first been granted to him, with a reservation of the surface. Arnold v. Stevens, 24 Pick. 106. Though a reservation is to be construed most strictly against the grantor, still there will be retained in him all that it was the clear meaning and intention of the parties to reserve from the conveyance. Harris v. Ryding, 5 M. & W. 60; per Parke, B. p. 70. These observations are made necessary, by positions taken and urged on the argument by the learned counsel for the plaintiff. And here is a fit place to notice Hilton v. Ld. Granville, 5 Q. B., 48 E. C. L. R. 701, much relied upon by him, in that it held that there cannot be reserved in a grant that which will deprive the grantee of the enjoyment of the whole thing granted, and that a clause to that effect must be rejected as absurd and repugnant, has in that respect been from time to time much questioned, and finally in effect overruled. Rowbotham v. Wilson, 8 H. of L. Cases, 348; Duke of B. v. Wakefield, L. Rep. 4 H. of L. 377; and see Hext v. Gill, supra, 700-716. * * *