would have had all the rights of an owner of land at common law. That being so, according to Humphries v. Brogden, the owner of the surface is entitled to the support of the subjacent minerals, and if the owner of the subjacent strata, working ever so carefully, according to the custom of the country, does injury to the surface, by making it subside, he is liable to an action. We have, therefore, to see whether any special power is given by this statute to the lord in this respect. According to one way of reading the Act, there would be a right for him to get the minerals anywhere and at any distance or depth, so that he makes compensation for damage done. But by consent. of counsel on both sides, it seems agreed that the compensation is confined to damage done on the surface. This, therefore, leaves the lord in other respects in the position of an ordinary owner of minerals, where the surface belongs to another, and he cannot, therefore, defend himself effectually against an action."

But in the case of Rowbotham v. Wilson (25 Law Journ. Q. B. 362, and 8 H. L. Cases, 348), where an Inclosure Act had been passed, and on the face of the award it was stipulated that the allottees of the minerals should have liberty to work the mines, and the allottees of the surface should have no claim for compensation for any consequent sinking of the surface, it was held that the owner of the surface took it as a separate tenement, with only a qualified right of support from the minerals, and that he could have maintained no action against the allottee for working them in a careful manner. Houses had been erected upon the surface, and it was contended that as they

had stood thereon for more than twenty years before the subsidence complained of, a right of support to them had at all events been acquired. But Lord Campbell observed that "it would be strange if the owner of the minerals, who might work them although the surface in its natural state might be injured by subsidence, could be prevented doing so by the owner of the surface erecting upon it houses which he, the owner of the minerals, could in no way disturb. We are clearly of opinion that there is no evidence from which a lost grant from the owner of the minerals to the owner of the surface can be lawfully presumed, and that there is no evidence of enjoyment as of right from which the easement can be claimed under Lord Tenterden's Act."

It has been laid down in the case of Hilton v. Lord Granville (13 Law Journ. Q. B. 193), that a custom or prescription by which a manorial right to work mines without compensation for injury is invalid. But this is doubted by a learned author, who thinks that such a custom, though difficult to prove, must, if proved, prevail. For as the right to withhold support without compensation may be the subject of grant, so it seems to follow that it may be established by prescription.

The provisions of the Act 22 & 23 Vict. c. xliii. will be found in another part of this work, and are very important to all persons interested in minera property under inclosed lands.

CHAP. XIII.

INUNDATIONS AND BARRIERS.

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ONE of the great difficulties of coal mining is water. "In the sinkings at the Great Hetton Colliery, in the county of Durham," says a recent author, three principal springs or feeders were met with. The term 'feeder' is very expressive, and intimates that the outflow of the water is constantly fed from some unseen source. Of these feeders, the first issued 2,000 gallons of water per minute; the second, 1,000 gallons; the third, 1,600 gallons per minute. It is generally supposed that these waters are originally derived from the surface, that is, from rains and floods percolating through the superficial beds of earth and soil. Frequent inundations are caused by accumulations of water in adjoining mines. The custom of leaving solid masses of coal, as barriers between adjoining workings, arose from this difficulty. But the negligent manner of working, or the cutting away of too much or the whole of the barrier, or the wrongful working of an adjoining mine, gives rise to disputes and to lawsuits."

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"The law relating to this subject," says Mr. Bainbridge, "seems to be sufficiently simple and rational.

It is founded on the natural assumption that water is the common enemy, which, whether open or concealed, each owner must combat for himself; and upon another different but consistent principle, that each owner has the full right to extract the greatest possible benefit from his property; and that if in so doing he injure his neighbour he will not be liable to action, if his acts spring from no malice or mischief, and are simply consistent with a reasonable exercise of his own rights. For he ought not to be held responsible for the negligence of a neighbour who might have protected himself. The custom prevailing in most mining districts is conformable to this law. The mine owner works to the very end of his boundary on the dip of the beds, and leaves a barrier of his own mineral on the rise. Each owner thus fares alike, and each is, or ought to be, independent of the other."* There is here no question of easement. It is a matter depending entirely upon the admitted rights of property. If an upper owner trepsass upon the barrier of a lower owner, the former will be liable for the consequential damage, as well as for the trespass itself.

The leading cases upon this subject are the following. In the case of Clegg v. Dearden (17 Law Journ. Q. B. 233), the plaintiffs were in possession of a colliery in Staffordshire from 1830 to the commencement of the suit. The defendant had worked an adjoining colliery, on the rise, previously to the demise, had trespassed into the other lower coal-mine, and had

*Bainbridge on Mines, 426.

The

made some excavations and openings in the coal of that mine, by means of which the roof of those excavations fell in, and the interstice became filled with water. Afterwards the plaintiffs worked within a few yards of their boundary, where they found these waters which flooded their mine. These trespasses were previously unknown to the plaintiffs. defendant had ceased to work his own coal, and to pump out the water. It was found by the special verdict that the distance left by the plaintiffs would have been a sufficient barrier, if the defendant had not trespassed wrongfully. In 1841 an action on the case was brought against the defendant for those trespasses, which was referred to an arbitrator, and substantial damages awarded. Afterwards another action was brought against the defendant for not closing the barrier. But it was held by the Court of Queen's Bench that the action could not be maintained. Lord Denman in giving judgment said there was a legal obligation to discontinue a trespass, or remove a nuisance, but no such obligation upon a trespasser to replace what he had pulled down or destroyed on the land of another, though he was liable in an action of trespass to make compensation in damages for the loss sustained. The defendant having made an excavation and aperture in the plaintiff's land, was liable to an action of trespass; but no cause of action arose from his omitting to re-enter the plaintiff's land to fill up the excavation. Such an omission was neither a continuation of a trespass, nor of a nuisance, nor the breach of any legal duty. The flowing of the water and the damage