THE GREAT EXTENDED SLUICING COMPANY V. HALES AND ANOTHER.

Tuapeka Times, Volume III, Issue 163, 23 March 1871, Page 6

THE GREAT EXTENDED SLUICING COMPANY V. HALES AND ANOTHER.

(From the " Otago Daily Times.")

His Honour Mr. Justice Chapman delivei-ed judgment on the motion for an injunction in this case, on Monday, 15th inst., as follows :—: —

Motion for injunction to restrain the defendants from continuing and repeating certain injuries complained of in the declai'ation. The declaration states that the plaintiffs are a mining company, duly incorporated, and that since the year 1866 they have been, and still are, possessed of a piece of land situated at the Blue Spur, Gabriel's Gully, containing 5 acres and 28 perches, the boundaries of which are set out and also delineated on a plan in the margin of the declaraction. The defendants are adjacent occupiers and miners, and the declaration av?rs that they, on, &c, wrongfully, carelessly, negligently, and improperly, and without leaving any proper and sufficient support in that behalf, rained upon and under, and worked and dug for, and got and took away, gold earth, soil, and mineral strata, contiguous and near to the said parcel of land, and caused the same to be and remain without any proper, or reasonable, or sufficient support for a long space of time, whereby and by reason of the premise;?, a large quantity of gold earth and soil on and under and belonging to the said parcel of land of the plaintiffs became loose and cracked, and subsided and gave way, and became wholly lost to the plaintiffs. There is a second count charging that the defendants on, &c, broke and entered the said land of the plaintiffs, and interfered with and disturbed them in the possession thereof, and dug and constructed a water-race through the said land, and diverted water into the said water-race, and negligently and carelessly allowed the water in the said watewace to run through and amongst a large quantity of auriferous earth of the plaintiffs, and carried away the same, and converted it to the defendants' own use. There' is a third couut for the wrongful conversion of a large quantity of auriferous earth and soil, the property of the plaintiffs. The averments of the declaration are verified by two affidavits of William Cum raings, the manager of the Great Extended Sluicing Company, and by that of Alexander M'Nab, a contiguous occupier, who, after supporting the material facts sworn to by Curamings, swears that he believes that the slipping or sliding down of the plaintiffs' auriferous earth on to the land of the defendants, as mentioned in the said affidavits (those of Cmumings), is caused solely by the manner in which the defendants are carrying on their mining operations. M'Nab further swears " that in or about the month of June last, a quantity of the plaintiffs' earth and soil, which had slipped in consequence of the mining operations of the defendants, fell partly on to the land of the defendants, and partly on to the claim of which I am one of the joint owners, and the said earth and soil which fell on the said last mentioned claim was sluiced and washed by me in the ordinary way, and I found the same to be auriferous, and to the best of my belief valuable, and I subsequently paid the plaintiffs for the said earth and soil." Thus, then, two causes of injury by the alleged negligent and careless operations of the defendants are relied on— first, the privation of the lateral support ; and, secondly, the improper use of the water-race ; by both of which causes the auriferous soil was detached from the p]aintiffs' land and carried into and upon the defendants' land, and there

converted to the defendants' use. The case was very fully argued before me last week, and several objections were urged on behalf of the defendants to the case made by the plaintiffs, in point of lay. First, it was said that the plaintiffs had slept upon their rights for so long a period as to amount to acquiescence. I have already expressed my opinion that it is not a case to which acquiescence applies. The injuries may have commenced long since, but they are alleged to have continued up to a recent period. Now in such a case I know of no rule of Equity which compels a plaintiff to resort to the Court at the very inception of an injury. He may submit to the eai'ly injuries in the hope that they will not be repeated ; they may at first be too trifling to justify litigation ; he may attempt private remonstrance leading to amicable compromise; but whon he finds these hopes fail, and the alleged grievance is repeated, he may resort to the Court for redress. The continuous or recurring nature of the injury complained of, and the likelihood of its further continuance, is the foundation of the right to an injunction. The next objection is that the declaration does not sufficiently show title. Seiwyn (N.P.) says, "The action of tresspass vi et armis is termed a possessory action, to distinguish it from those actions in which the plaintiff must show title." As against a wrongdoer it is immaterial whether such possession be founded on a good title or not ; and the same rule applies to chattels. A person with no title, as against the true owner, may maintain trover against a wrongdoer There is a pretty strong case in Strange, 1238, Gary v. Holt, in which the defendant set up his own title, which was held to be no answer. The whole report is short, but quite conclusive :—": — " The plaintiff declared in tresspass upon his possession ; defendant made title, and gave colour to the plaintiff. Plaintiff replied de injuria sua propria, and traversed the title set out by the defendant, and upon demurrer the Coui't held this a good replication, for it lays the defendant's title out of the case ; and then it stands upon the plaintiff's possession, which is enough against a wrongdoer ; and the plaintiff need not reply a title." Northam v. Bowden, the case relied on by Mr. Macassey, is equally conclusive*. It was decided on the same principle. The next objection is, that tho plaintiffs have no right to lateral support from the defendant's land ; and here, I understand Mr. Smith to question the applicability of the common law right to the case ; and also to contend that, even admitting, for the sake of argument, the common law right to lateral support, as between contiguous and conterminous miners in England, that right is completely put an end to by the G-oldfields Act of this colony. As to the existence of the common law right, Humphreys v. Brogden is relied upon. That case no doubt turns upon what is there called subjacent rather than adjacent or lateral support — that is, the grievance complained of was, that the defendants undermined the plaintiffs' soil, which they had a right to do, but without leaving proper support, which they ought to have done. But Lord Campbell's judgment was full of authority in favour of the existence of both rights. His Lordship, moreover, treats the right 1o lateral support as better defined and better settled than the right to underground support ; and this is not to be wondered at, inasmuch as the co-existence of one right to the surface soil, and another right to minerals lying under the soil, had only grown up in comparatively modern times. In examining the law on the subject, his lordship begins by quoting from a case in 2, Rolle's abr., 5G4, iit. Trespass, 1., pi. 1, Wilde v. Minsterly, in which, after stating that no action lies where a man builds a house close to his own boundary, and the next occupier digs up to his owu boundary, and the house falls down, because this was the fault of the owner of tho house ; the report adds. " but semble that a man who has land next to my land cannot dig his land so near to my land that thereby my land shall fall into his pit, and for this, if an action were brought, it would lie." "This doctrine," continues his lordship, "is recognised by Chief Baron Comyn, Com., D., Action upon the ease for a nuisance, A. ; by Lord Tenterden in Wyatt v. Harrison, 3, B. and Ad., 871, 876; and by other criminal judges. It stands on natural justice, and is essential to the protection and enjoment of property in the soil. Although it places a on what a man may do with his own property, it is in accordance with the precept Sic utere tuo ut alienum non ladas. As is well observed by a modern writer ' If the neighbouring owners might excavate their soil on every side up to the boundary line to an indefinite depth, landthus deprived of support on all sides could not stand by its own coherence alone,' Gale on Easements, p. 216. This right does not depend upon priority of occupation or long user." "The right of lateral," support is lordship continues," from adjoining soil is not, like the support of one building upon another, supposed to be gained by grant, but is a right of property passing with the soil. If the owner of two adjoining closes conveys away one ofthem,thealienee,withont 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 or any longer period." Indeed, although the right to lateral support from a house generally rests upon prescription, and yet under certain circumstances, it may rest on the same principle as the right to lateral support from the neighbouring soil. Thus in Richards v. Rose, 9, Exeh., 218, it was held by Chief Baron Pollock, delivering the judgement of the Court, after taking time for consideration, " That where a number of houses are built upon a plot of ground, all the houses belonging to the same owner, being all built together, and each obviously requiring the mutual support of its neighbours for their common protection and security, such right to mutual support equally exists whether the owner parts, first with one i house, and then with another, or with two together, the ownership of the latter being afterwards divided either by sale, devise, mortgage, or any other means. The right does not depend upon the fact whether the houses are parted with at one time or at separate times. That fact cannot affect the result, where the houses are orignally built depending upon each other, and requiring their united support," It may be further observed that the right to recover does not turn on negligence or careles3 working, but simply on the right to lateral and underground support, or both. In Humphries v. Brogden, the jury had negatived carelessness and negligence in the mode of working, but found that the defendants had not left sufficient support, and the right of action was susl ained. So in NicMin v. Williams. in 10, Exch., 259, which turaed upon subjacent and adjacent support, and the declaration charged the working to have been conducted carelessly, negligently, and improperly ; the Court held that the cause of action was not the damage done to the land and houses by the improper working of the mine, but the irjury to plaintiffs' right to have their land and houses supported by the contiguous land and strata of coal, and therefore, when any part of the necessary support was removed, although there was no actual damage, there was a complete cause of action for which the plaintiffs might have recovered prospective damage, and no new cause of action arose from the subsequent damage. Th:rewasaplea in this case which, on demurrer, gave the defendant the judgment; but that had nothing to do with the plaintiffs' rights as disclosed by thedeclaration. It seems to me, therefore, thatjneighbouring occupiers for mining purposes have a mutual right, as against each other, both to lateral and to underground support ; and if one mines up to the boundary of the other, he must either leave buttresses of support or shore up, so as to protect his neighbour against his own workings. It is possible that the workings at the Blue Spur are very deep ; but that does not affect the right of each to lateral support from his neighbour. It may necessitate more gigantic buttresses, or more costly shoring up, but it does not affect the right. Such being the common law right, Mr. Smith contends that the practice of mining for gold in these colonies is so peculiar, and rests so completely on legislation, i.e., on the Goldfields Act in this country, that the common law does not apply. He has not, however, pointed out any provision in the Act which has the effect of taking away the common law right, now under notice, nor do I know any. The common law rights of the subject cannot be destroyed by implication. Even affirmative words do not alter the common law, but are to be read as cumulative thereon. Dwarris has given several instances in which it has been held in the affirmative words do not take away the common law. They are collected at p. 474 of his useful work on Statutes. But here we have not even affirmative words, and I see nothing in the G-old-fields .Act which affects the common law right to lateral support. Such being my view of the law as applicable to the case, I come to the evidence disclosed by the affidavits. Nine affidavits have been filed by the defendants in answer to the case made by the plaintiffs. They are all nearly to the same effect. That of James Farrell seems to me to be the most complete, and specific in its averments. He is a person of great experience ; he knows the ground, and especially the boundaries of the plaintiffs' and defendants' claims. He swears that he measured the distance of the defendants' workings from the plaintiffs' boundary, and that the defendants did not work nearer to the plaintiffs' land than 101 links, or 22 yards. That the support left was in a sloping direction, having for its base 101 links. He further says that he is aware that some of the plaintiffs' soil did fall over into the .defendants' land, but that such falling was not caused by any improper working of the defendants, but by leakage from a certain dam constructed beyond the boundaries of the claims of the plaintiffs and defendants by one M'Nab ; and also from a network of abandoned races. Other affidavits are to the same effect, though as to the evidence of distance, doubt is thrown by the answering affidavits as to the means of acquiring - knowledge by two of the deponents. Now we have the important fact that some of the soil of the plaintiffs did in fact fall into the land of the defendants. This is primd facie evidence that the support, whether of 10 or 100 links base, was not sufficient. It is for the jury

to say whether the support left was sufficient. That would probably be determined by the depth of the defendants' workings, or, in other words, the height of plaintiffs' surface above the lowest level of the defendants' workings. I think that the mere fact of tho plaintiffs' soil having toppled over is primd facie evidence of an absence of proper suppoi't. But the answering evidence, filed in support of the plaintiffs' case, contradicts the statement that a base of 101 links (22 yards) was left unworked to serve as a support, Mowat, who like Farrell is a man of great experience and competent knowledge, inspected the ground subsequently to Farrell's visit thereto. He swears that the boundary marks of plaintiffs' land had fallen away into the defendants' workings ; that there is now a precipitous face of considerable height ; and that he believes that the defendants have cai'ried their workings within the boundaries of the plaintiffs' claim. That is more than the first count of the declaration requires. But the evidence which most impresses me, as lending great support to the plaintiffs' case, is that of the Surveyor, Adams, which is prei cisc, specific, and clear, and is rendered more intelligible by the two plans attached to his affidavit. I have studied these plans with some care. In paragraph 8 of his affidavit he swears that " the defendants have worked out all the ground (describing it) within their boundaries, and that the space between the said lines {i.e., certain lines described on the plan as tho extremity of the defendants' workings) " forms a precipitous acclivity 70 links high at one point described in the plan, " and 165 links high " at another part of the plan. This seems to be the precipitous face mentioned in Mowat's affidavit. In paragraph 9, Adam swears that "the base of the said acclivity or face is situated at a mean distance of 25 links within the defendants' boundaries, and the summit of the same is situated at a mean distance of 2o links within the plaintiffs' boundaries." This contradicts the statement that the defendants never carried their workings nearer to the plaintiffs' boundary than 101 links. In conclusion, Adam swears as follows :—": — " lam of opinion that the said land-slip has been caused solely by the mining operations of the defendants, and particularly by the use of largo charges of gunpowder for blasting, and large streams of water for washing the auriferous earth." There are other affidavits contradicting the statement as to the injury being caused by M'Nab's dam, and the evidence as to the " network of abandoned races ; " and, on the whole, I think there is a preponderance of evidence in support of* the plaintiff's case. Ido not think it necessary to go into the respective rights of the parties, as to the use of the water, because it seems to me that the evidence as to the first count is sufficient to entitle the plaintiffs to the injunction for which they pray, until the hearing.

The costs will be costs in the cause.