Odger's English Common Law

DAMNUM SINE INJURIA. 411
port sufficient to maintain the surface in its natural state. The Court of
Queen's Bench gave judgment in favour of the plaintiff.
" If A., seised in
fee of land next adjoining land of B., erects a new house on his land, and
part of the house is erected on the confines of his land next adjoining the
land of B., if B. afterwards digs his land near to the foundation of the
house of A., but not touching the land of A.., whereby the foundation of the
house and the house itself fall into the pit, still no action lies at the suit
of A. against B., because this was the" fault of A. himself that he built his
house so near to the land of B., for he could not by his act hinder B. from
making the most profitable use of B.'s own land." But, on the other hand,
the Court proceeded to remark, " a man who has land next adjoining to mine
cannot dig his own land so near to mine, that thereby ray land shall fall
into his pit ;
" and for so doing, if an action were brought, it seems clear, on
principles of natural justice, that it would lie. The existence of such a right
to lateral support for land from the adjoining soil manifestly places a
restraint on the enjoyment of the adjacent property ; yet, " if the neigh-
bouring owners might excavate their soil on every side up to the boundary
line to an indefinite depth, land thus deprived of support on all sides could
not stand by its own coherence alone," and great damage might be caused to
its innocent owner. The law however is different where the subsidence is
due to the weight of buildings on the land. 1
The owner of minerals underground has prima facie a right to remove
the whole of them, and a right to forbid such removal must be founded on
something more than mere proximity. 2 Thus in the case of Smith v.
Kenriclc 3 the Court decided that it is " the natural right of each of
the owners of two adjoining coal mines—neither being subject to any
servitude to the other—to work his own in the manner most convenient and
beneficial to himself, although the natural consequence may be, that some
prejudice may accrue to the owner of the adjoining mine, so long as that does
not arise from the negligent or malicious conduct of the party." But the
occupier of a mine situated at a higher level than the plaintiff's mine has
no right to be an active agent in sending water into the lower mine. 4
Many Acts of Parliament authorise railway companies and
other public bodies to carry out works and do other acts, which
inflict loss or damage on private individuals, and which with-
out such authority would be actionable. Such individuals
cannot bring an ordinary action for damages, because there is
no injuria, the act which has caused the damage having been
legalised by statute. 5
In most cases, however, the same
statute requires the railway company to pay compensation for
1 Ilanier v. KnowUs (1861), 6 H. & N. 454.
2 Fletcher v. Smith (1877), 2 App. Cas. 781.
» (1849), 7 C. B. 515, 564, distinguished in Att.-Gen. v. Tomline (1880), 14 Ch. D. 58.
* Baird v. Williamson (1SG3), 15 C. B. N. S. 376 ; Att.-Gen. v. Conduit Colliery
Co., [1895] 1 Q. B. 301.
6 Per Mellor, J., in Dunn v. Birmingham Canal Co. (1872), L. E. 7 Q. B. at p. 273 ;
L. R. 8 Q. B. 42 ; and see Dixon v. Metropolitan Board of Worlts (1881), 7 Q. B. D. 418.