I concur in the ultimate conclusion reached by my brethren as expressed in the majority opinion, but I differ widely from the reasoning employed therein as a basis for reaching it. In expressing my views as to the basis — or platform so to speak — upon which I think the judgment should rest, I will content myself with only mentioning universally known principles of the law without encumbering what I shall say with supporting opinions and text authorities, except where I deem it necessary to adopt a different course. If this were the majority opinion, I would feel it requisite throughout to fortify the legal propositions that I shall state with adjudicated cases and text authorities of recognized and undisputed reliability.
The opinion states the facts, and correctly concludes that "the case is sui generis." It then adds: "Counsel have been unable to give us much assistance in the way of previous decisions of this or other courts. We are left to fundamental principles and analogies." Those excerpts therefrom are undoubtedly true, and *Page 430 some principle must be found by which (1) the involved property (the cave) may be rendered profitable to each of its several owners, and (2) that it may be kept open in its entirety; not only for the purpose of making each owner's portion profitable to him, and all others having proprietary rights therein, but also that the patronizing public might not be deprived of the educational and other benefits to be derived from visiting the nature-made wonder throughout its length, without any obstructing walls by separate segment owners, which under the theory of the opinion they would undoubtedly have the right to construct, provided they could gain entrance into the cave for that purpose.
It is because of the recognition of such segment ownership, as recognized and applied by the opinion, with its following consequences, that has led me to adopt the views hereinafter expressed, and which I am confident will be found to be not only the more practical, but also an assured guarantee is thereby furnished against the possible obstructions, already mentioned, and other potential consequences that lurk in the theory approved and adopted by the court's opinion. The case, being sui generis, with its peculiar facts having never heretofore been presented to a court for a declaration of rights growing out of similar conditions, must necessarily be determined upon equitable principles, formulated with the view of not only preserving the rights of owners, but also for maintaining those of the public, both of which I think are endangered and liable to become wholly destroyed if the declared basis of the opinion should be adhered to in any future state of facts wherein such obstructing activities should be employed. The opinion, according to my interpretation of it, recognizes the right of courts in such sui generis cases to employ a tool from the contents of its inexhaustible chest whereby a particular case may be fitted into the niche that it should occupy so as to preserve the rights of all persons concerned. That recognition is exhibited by the attempted differentiation of this case from an ordinary trespass action and to determine the rights of the parties on ex contractu principles. In doing so it regards as analogous the multiplied cases that have been determined wherein a trespasser on real estate takes away from the corpus a part of it, and which part so abstracted was the only source of profit involved — as for *Page 431 example oil, gas, coal, and other tangible minerals. To the same effect are the cases wherein a trespasser takes away a part of the soil of another. In all such cases where the trespassing act is willfully done, the measure of recovery of the one trespassed upon is the net value of the substance taken away from the corpus of his property. On the other hand, where no corpus is abstracted and taken away, but only a mere use of the property, with the corpus left intact upon the cessation of the use, the measure of recovery is the reasonable rental value of the property.
I have yet to meet with a case where A would be made to account to B for all of the agricultural profits grown by A on B's land while the grower was an undoubted trespasser. The measure would be the damages that A did to B's land (all of which he would leave intact after the trespassing act ceased) and which is practically universally determined as being the rental value of the land for the use to which it was put. Other illustrations could be cited in substantiation of the same view and which illustrations are analogous to the one here involved, as is pointed out in the opinion. Manifestly that rule for the measure of damages in this case (and which is the one insisted on by appellants) would be utterly impractical and glaringly inequitable in the exigencies of the case developed by the facts. Therefore, the opinion properly searches for, and finally discovers and applies what is regarded therein as the proper shaping tool from the law's reserved chest, but which I think is the improper one. Authority for the grafting upon a universally established rule an exception to meet the exigencies of the case, or to reshape and remodel it so as to fit the facts in hand, is well stated in the text of 21 C. J. pages 22 to and including page 30, and the devotion of more time and space would thoroughly demonstrate it. Such authority springs from the recognized fact that the reservoir of the law, containing available equitable principles, is not supposed to ever become so depleted as to render courts impotent in the administration of justice. The theory herein advanced for the correct principle upon which the judgment should be based, recognizes and employs that authority, the same as does the majority opinion; but it is my conclusion that the theory herein advaneed is the one best fitted and best calculated to guarantee and perpetually *Page 432 preserve the rights of all parties concerned than is the one adopted and approved by the majority members. The sui generis nature of the case producing the demonstrated exigencies undoubtedly calls for an exercise of that authority in declaring the principles upon which the rights of all parties concerned should be adjusted.
My theory is this: That the cave in this sui generis case should be treated as a unit of property throughout its entire exhibitable length, including the augmentations of prongs or branches, and that it should be adjudged as owned jointly by all of the surface owners above it, in proportion that the length of their surface ownership bears to the entire length of such exhibitable portion. I realize that herein lies the departure (but which I think is justified from the exigencies of the case) from the ancient rule of, "Cujus est solum, ejus est usque ad coleum et ad infernos (to whomsoever the soil belongs, he owns also to the sky and to the depths.)" That maxim literally followed would segmentize ownership both above and below the surface corresponding to boundaries of the latter; and it is the denying of that effect, as applied to property of the nature of a cave, that constitutes the departure from, or exception to the rule, that I advocate; whilst the majority opinion not only discards that theory, but advocates other departures equally if not more drastic, and which are necessarily followed by much more impractical and destructive consequences. The same departure has already been made by all courts before which the question has arisen, with reference to ownership "to the sky" by the owner of the surface, in determining aerial navigation rights, and which departure was forced by the necessities of the case. I, therefore, can conceive of no objection to extending it in the opposite direction when the same necessities demand it.
Joint ownership arises under three classes of acquired titles. Under one, the several owners are known as "cotenants"; under another they are known as "tenants in common"; and still another they are known as "joint tenants" or "holders in coparcenary." But subsection 28 of section 732 of our Civil Code of Practice dispenses with the common-law distinctions and treats alike all of such joint ownerships. It was so interpreted and applied in the case of Melton v. Sellars,167 Ky. 704, 181 S.W. 346. The Code provision, therefore, dispenses *Page 433 with the technical distinction of such joint ownerships and upholds all the rights that a cotenant would have at common law in and to the jointly owned property. Among those rights are (1) to employ the jointly owned property so as to produce profit to the one so employing it, as well as to his co-owner or owners, and (2) to call upon his cotenant or tenants, who do profitably employ the property, to account to him for his proportion of the net profits. See the text in 7 Rawle C. L. 832, sec. 26, and Freeman on Co-Tenancy, sec. 270 et seq.
The cave in divided segments according to surface ownership, if the division should be made, would render each segment of little profit producing value. But the theory of the opinion indisputably implies that right which if exercised would render all portions of the cave beyond the Edwards boundary (within which is located its entrance from the surface) absolutely valueless, since it is incontrovertibly established by the evidence in this case that no opening into the cave can be made upon any of the lands of the respective owners extending back from its mouth located, as said, within the Edwards boundary. Nevertheless, as pointed out, the other owners of different segments of the cave (back from its entrance) may prevent, under the theory adopted by the majority opinion, the owners of the Edwards tract from exhibiting any portion of the cave than that which lies under their surface. With the attractiveness of the cave thus curtailed, but a small amount of patronage of inspecting it could be obtained, since the sightseers could penetrate it no farther than the Edwards line. The same consequences would follow as to the other segments, if their owners could make a practical entrance into their separately owned segment, but which as we have seen, they cannot do. Thus the cave as an entirety, as will be easily seen, could be destroyed as a profit producing property, and also as a pleasing and educating exhibition to the members of the public. But such consequences could not and would not follow the theory herein advanced. Following its adoption, remedies are abundant whereby any joint owner might enforce the continued opening and operation of the cave, even by the appointment of a receiver if necessary, or the employment of some other remedy known to the law. The theory of joint ownership which I conclude is the correct one to adopt and apply under the exigencies of this case *Page 434 does not conflict with the maxim supra that the surface owner also owns to the "depths below," except that it applies his ownership — not to the particular segment underlying his surface rights — but to the aliquot part of the entire attractive vacuum made by nature, called "a cave," and that the extent of his joint ownership in the entire property is measured by his surface rights. As will be seen, that theory prevents any such obstructive and destroying consequence as is above pointed out, both as applied to each joint owner and to the sightseeing public; as well as to render easy the adjustments of the rights of all the owners in all future operation of the cave as a profit-producing agency.
If it should be said that some of the rulings heretofore advanced by us in former appeals with reference to the rights of the parties in this case prevent the application of the views of joint ownership herein advocated, the answer is that so far as I have been able to discover such orders were interlocutory in their nature and were not final, being employed only to preserve the status until a correct and final determination of the rights of the parties could be adjudged. If, however, I should be mistaken in that, then the majority opinion might be approved as being the only equitable one now available, after barring the joint ownership theory in this particular case under the "law of the case" rule, but at the same time declare that as to future cases of like nature the joint ownership theory should prevail.
For the reasons stated, I concur in the result of the majority opinion, but disagree with the theory upon which it is based.