is materially affected by the manner and to the extent in which the upper owner makes use of the water. As this use is not what would ordinarily be regarded as a natural incident to the land bordering upon a watercourse, it becomes a matter of easement or servitude if continued long enough, and under proper circumstances to create a prescriptive right. Such, in brief, was the case referred to, and the questions involved were: 1st. If the upper owner had diverted more water than he had a prescriptive right to do, to the injury of the lower owner's mill and crop which he was cultivating? 2d. Whether, as he had acquired a prescriptive right to divert the water for the production of a certain crop (kalo) upon certain lands, he had a right to use it upon other lands in growing a crop of cane? 3d. Whether, as in the use of the water upon the kalo land, a portion of it reached the plaintiff's land, whereby it was benefited, and this had been continued from time immemorial, the defendant had a right to cease using it upon his kalo land and to use it on his cane land, and thereby deprive the plaintiff of the enjoyment of the water from the kalo land? And 4th. What rule should be applied as to the extent of enjoyment of the parties, if at any time there should be deficiency of water by reason of an extraordinary drought? Upon these points the Chancellor held that the rights of the parties, as to the extent to which either could apply the waters of the streams running through their lands, must be measured by the prescriptive rights of user acquired by each; that the right attached to the estates owned by them, and had reference to the quantity to be used and not the particular mode in which it should be applied, and that it was indifferent whether it was used in growing kalo or cane; that inasmuch as the use of the water upon his kalo land was artificial and for his own benefit, the owner was not bound to continue it, although its discontinuance worked an injury to the adjacent owner; and that the use of the water of the stream was so far the common property of both, that if, from extraordinary causes, there was a deficit in the quantity necessary to supply the wants of both, the loss should be borne pro rata, by the estates of the parties in interest. All these points are fully considered in the light of authorities drawn from English and American decisions and elementary treatises. And the case itself and its decision furnish palpable and gratifying evidence of the change which has come over the social and political condition of a people who, within the memory of living witnesses, have emerged from barbarism and idolatry, and are now enjoying the gladsome light of jurisprudence in its dispensation by a learned and able judiciary and an educated bar.1 1 Peck v. Bailey, Pacific Com. Advertis., Feb. 9, 1867. [540] 1. How far lateral support a right incident to property. 4. Thurston v. Hancock. Removing support of adjacent house. 8. One may not carelessly injure the support of another's house. 9. One may not dig in another's land to the injury of a third party. 9 a. Lateral and subjacent support of public works. 10. Radcliffe v. Mayor, &c. How far one may dig his own soil. 13. How what is carelessness in digging is tested. 14. Support for houses gained by prescription and implied grant. 15. Foley v. Wyeth. Care to be used in digging as to houses. 15 a. Right implied of impairing lateral support. 16. Right to dig limited by its not injuring the natural soil. 17, 18. How far knowledge of facts affects the degree of care to be used. 1. AMONG the rights which adjacent proprietors of lands may have to enjoy the benefit of their contiguity, is that of [* 430] * having one parcel laterally supported by the other. It is a right incident to the ownership of the respective lands, rather than an easement which one has in the other. It does not result from the idea of an adverse enjoyment, nor is it derived from any grant, as something superadded to the dominion which the owner of the fee has, as such, over the soil of the particular close that is supposed to be benefited by it. So far as it partakes of the character of an easement, it is that of a natural easement, like the right of a riparian proprietor to the flow of a natural stream along its accustomed watercourse. A writer in the London Law Magazine and Review, in treating of this subject, thus states the law: "But the right being a right to support from land in its natural state to land in its natural state, on the one hand, it includes only the right to such support as is furnished by the permanent conditions of land, not by its accidental circumstances, and, on the other hand, if the support required is increased, either by increasing the weight of the supported land, or by diminishing its self-supporting power, no right exists to have this additional support supplied by the neighboring land, and no subsidence resulting from this cause gives a right of action." But where the owner of one parcel undertakes to claim, as a right, this lateral support of an adjacent parcel to sustain an additional burden thereon, as a dwelling-house, an artificial embankment, and the like, it becomes a servitude so far as the adjacent parcel is concerned, and an easement in favor of the parcel sharing the benefit of such support.3 A division fence between two adjacent lots of land standing upon the line, is not considered such additional burden thereon ast 1 M'Guire v. Grant, 1 Dutch. 356, 368; Humphries v. Brogden, 12 Q. B. 739; Lasala v. Holbrook, 4 Paige, 169; Farrand v. Marshall, 19 Barb. 380; Hunt v. Peake, Johns. Ch. (Eng.) 705; No. East. R. W. Co. v. Elliot, 1 Johus. & H. 145; Foley v. Wyeth, 2 Allen, 131; Rowbotham v. Wilson, 8 Ellis & B. 123, 152; Solomon v. Vintners' Co., 4 Hurlst. & N. 585; Bonomi v. Backhouse, Ellis, B. & E. 622, 642, 644; Caledonian R. W. Co. v. Sprot, 2 Macq. H. of L. Cas. 449; Napier v. Bulwinkle, 5 Rich. 311, 323; Eliot v. N. E. R. R., 10 H. L. Cas. 354. 2 20 Law Mag. & R. 82; Smith & Thackerah, L. R. 1 C. B. 564. Humphries v. Brogden, 12 Q. B. 739, 748, 750; Thurston v. Hancock, 12 Mass. 226; Bonomi v. Backhouse, Ellis, B. & E. 622, 646; Backhouse v. Bonomi, 9 H. L. Cas. 503; Hunt v. Peake, Johns. Ch. (Eng.) 705, 712; Partridge v. Scott, 3 Mees. & W. 220; Rogers v. Taylor, 2 Hurlst. & N. 828; Hide v. Thornborough, 2 Carr. & K. 250. not to be entitled to the lateral support of the adjacent lots, like the natural soil itself.1 [ED. The right of lateral support for land in its natural state, besides being a natural right incident to the ownership of land, and independent of grant or prescription, is also an absolute right, and independent of the question of negligence. If the owner of the adjoining land takes away the natural support, it does not matter whether he acts with due care, and is guilty of no negligence. On the other hand, this natural right of support does not extend to buildings or other additional weights superimposed upon the land, unless either by express grant, or by their existence on the land for a prescriptive period, they have gained an easement of support from the adjacent land. Until they have so acquired that right, the owner of the adjoining land may cut or dig it away as he chooses, provided he does not carelessly or wantonly deprive his neighbor of the support to his buildings; or, in other words, if the owner of the adjoining land makes excavations of such a nature that by it the adjoining land would, in its natural state, be caused to fall, without the additional weight of buildings upon it, he is liable, whether negligent or not. If the excavation is such that the adjoining soil would not have fallen, had it not been weighted by the buildings upon it, he is not liable, unless he made the excavation carelessly, negligently, or wantonly.2 This natural right is sometimes rebutted by the circumstances of the case, apparently. Thus it has been held that, if the whole value of a tract of land consists in what can be got out of it by digging it away, and the owner bought it for the purpose of destroying it in that way, as in the case of land bought for hydraulic mining, the adjacent owner is not liable if by such mining on his own land he causes the adjacent land to fall, though he would be liable for any minerals he took from his neighbor's fallen land. In the case referred to, the plaintiff and defendant owned adjoining gold 1 O'Neil v. Haskins, 8 Bush, 653. [Contra, Gilmore v. Driscoll, 122 Mass. 201.1 2 [Angus v. Dalton, L. R. 6 App. Cas. 740; Gilmore v. Driscoll, 122 Mass. 199; White v. Dresser, 135 Mass. 150; Myer v. Hobbs, 57 Ala. 175; Buskirk v. Strickland, 47 Mich. 389; Baltimore & Pot. R. R. Co. v. Reaney, 42 Md. 117; Shafer v. Wilson, 44 Md. 268; Wier's Appeal, 81* Penn. St. 203; Stevenson v. Wallace, 27 Gratt. (Va.) 77. Cf. McMillen v. Watt, 27 Ohio St. 306.] |