The plaintiff takes her title to the house and land, injuriously affected by the acts of the defendant, under a deed granting about twelve acres of land in a single piece and which declares the conveyance to her to be "subject to the right of Stephen C. Gillis, his heirs and assigns, at all times thereafter, so long as the clay or sand may last or be used for brick-making purposes, to enter upon that part of the aforesaid premises which is bounded and described as follows (giving metes and bounds): containing one acre and seventy-five one hundredths of an acre of land, and to dig and take therefrom the clay and sand that may be found thereon fit for brick-making; such clay and sand is to be taken for no other purpose than for brick-making, and the right to enter upon the aforesaid part of said premises is to be only for the purpose of digging and removing such clay and sand." The grantor of the plaintiff took his title by deed from the defendant. In that deed the same twelve acres are described by the same description, and this is followed by a clause in terms "reserving to the said Stephen C. Gillis, his heirs and assigns" the same right to which the plaintiff's conveyance is declared subject and expressed otherwise in the same words. The acre and three-quarters to which the reservation relates appears from its description to be at the south-easterly corner of the twelve acres and its two exterior lines inclosing that corner are in the exterior bounds of the twelve acres. On the other two sides it adjoins the residue of the twelve acres. The injury complained of has been produced by the defendant in removing sand and clay fit for brick-making, and which he has employed for that purpose, from the acre and three-quarters specified in the deeds. All the excavation has been made within those bounds, but the consequence has been that the land of the plaintiff, beyond the bounds of the acre and three *Page 77 quarters, has cracked and fallen in upon the acre and three-quarters, for want of that lateral support which it received while the whole was in a state of nature, from the soil of the acre and three-quarters. Upon these facts it has been adjudged in the Supreme Court that the acts of the defendant were wrongful and he has been enjoined from continuing them.
The general doctrine that where the lands of two owners adjoin upon the surface, each owner has a right that his land shall not be deprived of the support which it derived from the adjoining land in its natural condition has become firmly established in the law of England and of this country. Apparently questioned in the opinion of Judge BRONSON in Radcliff's Executor v.Brooklyn (4 Comst., 200) where the point was not in judgment it has, nevertheless, after a very full and able discussion inFarrand v. Marshall (21 Barb., 410), been adhered to and seems not to have been denied since the first reported statement of it in 2 Rolle's Ab., 565, by any reported judgment. In England it has served as the foundation of a much wider doctrine relating to the right of support between owners of the surface and of mines underneath, and has become perfectly established as law and as consonant to natural justice. Among the numerous cases sustaining these views I may refer to Humphries v. Brogden (12 Q.B., 739 [Ad. El.]); Smart v. Morton (5 Ell. Bl., 309); Rowbotham v. Wilson (8 Ell. Bl., 123, and 8 H.L. Cas., 348); Backhouse v. Bonomi (9 H.L. Cas., 503);Caledonian Railway Co. v. Sprot (2 MacQueen, 449). The text books likewise concur in the same doctrine and refer to and comment upon very numerous cases in its support and illustration. (Washburn on Easements [2d edition], 511, and following, and 558 and following.)
It is further established that the right of support between adjoining or adjacent proprietors is a natural incident to the ownership of land, and is in that respect distinguishable from an easement, which must have its origin in a grant, either actual, or presumed from continued enjoyment. This is *Page 78 established by the consideration that the right at once exists upon the creation of separate ownerships in land adjoining, either laterally or horizontally, and needs no grant nor continuance to give it effect as a right. In Humphries v.Brogden, before cited, Lord CAMPBELL says: "This right to lateral support from adjoining soil is not like the support of one building upon another, supposed to be gained by grant, but it is a right of property passing with the soil. If the owner of two adjoining closes conveys away one of them the alienee, without any grant for that purpose, is entitled to the lateral support of the other close, the very instant when the conveyance is executed as much as after the expiration of twenty years."
But if the right to have support from adjoining land be not an easement, then what may be called the antagonistic right of removing your own soil so as to to diminish the support to which the adjoining owner was entitled, is an easement affecting his land in favor of yours, and making his land the servient tenement in that regard, and subject to the easement of being deprived of its natural support. That such an easement may be acquired by grant or agreement of the parties is obvious, and has been settled by repeated adjudications between surface owners and mine owners underneath. Rowbotham v. Wilson and Smart v.Morton are instances establishing further, that the party claiming the ordinary rule not to be applicable must establish its renunciation by the other party. In the latter case (5 El. Bl., 45), Lord CAMPBELL says: "The rights and obligations of parties, when the surface of land belongs to one owner and the minerals under it belong to another, appear to be well settled by the two cases of Harris v. Ryding (5 M. W., 60) andHumphries v. Brogden. Prima facie, the owner of the surface is entitled to support from the subjacent strata; and if the owner of the minerals works them it is his duty to leave sufficient support for the surface in its natural state. But theprima facie rights and obligations of the owner of the surface and of the minerals may be varied by the production of title deeds, or by other *Page 79 evidence. * * Upon the severance of the surface and the minerals, a deed might be framed empowering the owner of the minerals to remove the whole of them, without leaving a support for the surface. * * It may be contended that the powers here reserved, of working and winning the coals, are not confined to such as are to be exercised on the surface; but wherever exercised, they are perfectly consistent with the exercise of them, being subject to the implied right of the owner of the surface to support from the minerals. If the owner of a house were to convey it to another by deed, reserving the lower story to himself, whatever powers he reserved for the enjoyment of this story, unless the right of support is renounced by the grantee of the superior stories, these powers must be considered as only meant to be exercised subject to this right being respected." In the other case cited,Rowbotham v. Wilson (6 El. Bl., 602), the right of the owner of the minerals to injure the surface in extracting them was supported, not on any distinction between an ownership of the minerals and a mere easement to get them, but upon the ground that his right was supported by agreement at its origin, binding on the surface owner, by which he was precluded from any claim for damage for injury to the surface, by its sinking or other impairment, through the operations of mining; and the Court of Exchequer Chamber affirmed the judgment substantially on the same ground. (92 Eng. Com. Law., 123, 151.) In the House of Lords, where both judgments were affirmed, Lord WENSLEYDALE said (8 H.L. Ca., p. 362): I do not feel any doubt that this was the proper subject of a grant, as it affected the land of the grantor; it was a grant of a right to disturb the soil from below and to alter the position of the surface, and is analogous to the grant of a right to damage the surface by a way over it. The same doctrines are held and enforced in the judgment of Lord SELBORNE, in the House of Lords, in the very recent case of Buchanan v.Andrews (L.R. [2 Scotch Appeals], 290), where he declares that a reservation of minerals, with full power to work and carry away expressed in the largest terms *Page 80 and effectual to reserve the whole property, would still have been subject to the general restriction that binds every owner of property so to use his own as not to injure another's rights or property, but for an affirmative provision altering the ordinary rule.
Upon the whole, it seems to be clear that of common right no owner of land may deprive another adjoining owner's lands, in their natural condition, of lateral support, without the assent or grant of the owner whose lands are to be affected by such deprivation. In the case now before us, if the reservation to the defendant were of the whole acre and three-quarters of land, then it would be plain that under the authorities already considered, he could not have carried on the excavation of the soil to an extent sufficient to injure the soil of the plaintiff, by depriving it of its natural support, without incurring a liability therefor. It is insisted, on the part of the defendant, that inasmuch as it is not the ownership of the one and three-quarter acres which is reserved, but only of the right to get sand and clay for brick-making, that the principles before discussed become inapplicable. Taking the reservation by the defendant to be equivalent to a grant in the same terms from the plaintiff — and that is the aspect most favorable to the defendant — I think it impossible to maintain that a larger right passes by the right to dig within certain bounds than by the grant of the land in the same bounds. All particular rights must be less than the full dominion of the land. The sense of the rule requires us to reject such a distinction. The rule expresses the legal consequence of two adjoining pieces of land being subject to separate ownerships. It is the separation of ownerships, and not their extent or quality in point of estate, that is material. From the separation of ownership rights result in respect to support, not from the greater or less interests of the separate owners. The right claimed on the part of the defendant is made up of two distinct elements: a right to dig within the prescribed bounds and a right to deprive of support the adjoining ground beyond the bounds. The grant does not profess to give both. *Page 81 It only expresses the right to dig. The cases before cited show that the right to dig, given with the property in the thing to be got out, would fail to carry the right to disturb the adjoining ground. It must, in analogy to those cases, be limited to such digging as can be done without injury to the land of the plaintiff, beyond the prescribed bounds. The fact that the plaintiff has other lands adjoining is not material to the construction of the grant. The words of the grant go only up to the specified boundary, and may not be expounded to go beyond by implication. They must receive the same construction as if she had made the grant, owning only the one and three-quarter acres, since they can thus have all the significance and force which belongs to them. The defendant asks that they be interpreted in view of the fact that the plaintiff owned the adjoining land, and might have given a right to be exercised over that as well as over the specified parcel. The conclusive answer is, that according to the cases before cited, that right, to affect other land than that specified, is required to be expressed.
The judgment should be affirmed.
All concur with LOTT, Ch. C., except JOHNSON, C., dissenting.
Judgment reversed.