8. In Bonomi v. Backhouse, which was for an alleged injury to plaintiff's house and land by the working of defendant's mines, the house was an ancient one, and the judge, Wightman, remarked, "Where ancient buildings are standing upon the plaintiff's land, the defendant must take care not to use his own land in such a manner as to injure them."1 And after an enjoyment of the support of the natural soil for a dwelling-house for twenty years, a mine-owner may not so work his mine as to injure the foundations thereof.2 But if a house, though a modern one, be injured by a subsidence of the soil on which it stands, occasioned by excavations for minerals, he may, nevertheless, recover the damages thereby occasioned, unless the house was the cause of the subsidence.8 But if the owner of a house sues for an injury to the same, by weakening the support thereof, by excavating for minerals below it, he must state in his declaration the grounds upon which he is entitled to have his house supported by the land above the mines; and unless these are so stated, he will fail in his action.1 9. In Northeastern Railway Co. v. Elliot, the court held that the doctrine that the owner of a mine may not work it so as to take away the reasonable natural support of the surface, applies in cases where public works like a railway are constructed over it, and it is immaterial whether such company purchase, or take the land under its act of incorporation. But if such mine happened to be full of water when the road was constructed, whereby the surface was supported, as well as by props and ribs of coal left in the mines, the company could not complain that such water was afterwards pumped out, and the surface support thereby weakened, inasmuch as it was, from its nature, a mere temporary condition of the property.5 Where one worked a mine in another's land, the shaft by which he reached it opening in a field in which the 1 Bonomi v. Backhouse, Ellis, B. & E. 622, 836. See also Rowbotham v. Wilson, 8 H. of L. Cas. 348, 365, 367. 2 Rogers v. Taylor, 2 Hurlst. & N. 828; Partridge v. Scott, 3 Mees. & W. 220. 3 Strayan v. Knowles, 6 H. & Norm. 465; Brown v. Robins, 4 H. & Norm 186. Hilton v. Whitehead, 12 Q. B. 734. 5 Northeastern Railw. Co. v. Elliot, 1 Johns. & H. 145; Eliot in Error v. N. E. R.R. Co., 10 H. L Cas. 333-336, sustaining the court below. See ante, * 437, pl. 9. p. owner was accustomed to keep his cattle, the occupant of the mine was bound to keep the outlet of such shaft safely fenced, so as to prevent the cattle, rightfully there, from falling into the shaft.1 *SECTION V. EASEMENT OF SUPPORT OF PARTS OF THE SAME HOUSE. 1. Separate freeholds may be had in the different parts of a house. 2. One owner may not impair the support of the part of another. 3. How far owners are to contribute towards repairs. 4. Owners in common contribute towards repairs. Doane v. Badger. 5. How far owners of one story contribute to support another. 5 a. One cotenant may not charge for new erections. [* 480] 6. Remedy in equity of the owner of one story against the owner of another. 7. Law of Scotland as to support of different stories. 8. Laws of France on same subject. 9. Laws of France as to houses falling by decay. 10. How one estate may protect itself from a privy on another. 1. WHILE the law is well settled, that there may be separate owners in freehold or inheritance of different parts of the same house, even though one of these be a single chamber therein,2 the common law seems to be singularly deficient in definite rules in respect to the rights and obligations of the several owners, as to the extent and mode of using the parts of one tenement for the benefit of another, or how far the owner of either part is bound to repair the same, or to contribute to the repairs of other parts. 2. There are definite rules upon this subject in the Scotch and French laws which it is proposed to notice briefly, after considering how far the common law furnishes a guide in determining the rights of the respective parties. It is well settled, in the first place, that where there are different stories to the same house, each belonging to different owners, neither can do any thing within his own story which shall impair the safety or enjoyment of that of the other owners. Thus it is said by Lord Campbell: "The books of reports abound with decisions restraining a man's acts upon and with his own property, where the necessary or probable consequence of such acts is to do 1 Williams v. Groncott, 4 B. & Smith, 149. 2 Co. Litt. 48 b; 1 Washb. Real Prop. 4; Rhodes v. M'Cormick, 4 Iowa, 375. damage to others. The case of common occurrence is [* 481] where the upper *story of a house belongs to one man, and the lower to another. The owner of the upper story, without any express grant or enjoyment for any given time, has a right to the support of the lower story. . . . If," he adds, "the owner of an entire house conveying away the lower story only, is, without any express reservation, entitled to the support of the lower story for the benefit of the upper story," &c., assuming this postulate as an undoubted rule of law, to which he refers for purposes of illustration.1 In the case last cited, Campbell, C. J., says: "If the owner of a house were to convey it to another by deed, reserving a 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 Harris v. Ryding, which was a case involving the rights of surface owners as against the operations of subjacent mine-owners, Maule, J., says: "That right appears to me to be very analogous to that of a person having a room in a house over another man's room; yet his rights over his exclusive property are not unlimited, but are limited by the duty of so using it as not to do any damage to the property of another person. 2 In the case last cited, Parke, B., says: "It is very like the case of the grant of an upper room in a house with the reservation by the grantor of a lower room, he undertaking to do nothing which will derogate from the right to occupy the upper room; and if he were to remove the support of the upper room, he would be liable in an action of covenant, for a grantor is not entitled to defeat his own act by taking away the underpinnings from the upper room." [*482] *3. Neither of the above cases, however, reaches the question, how far the owner of one part is bound to contribute towards the repair or maintenance of any other part of the structure. If the notion of the French law is to be applied, so far as the walls or any other part of the house are necessary for the 1 Humphries v. Brogden, 12 Q. B. 739, 747. See also Smart v. Morton, 5 Ellis & B. 30, 47. 2 Harris v. Ryding, 5 Mees. & W. 60, 76; Rhodes v. M'Cormick, 4 Iowa, 376. benefit of the whole structure, they are to be considered in the nature of party walls, and each owner must contribute or aid in their support and repair. And this seems to be sustained by Kent, Ch., in Campbell v. Mesier.1 4. The same principle was applied in the case of Doane v. Badger, where the subject-matter of common property was a pump which was out of repair; and in illustrating the doctrine, the court refer to the case of a house: "If the two cotenants tacitly agree or permit the house or its appurtenances to go to decay, neither can complain of the other until after a request and refusal to join in making repairs," clearly assuming, that if one joint owner of common property, after notice and demand of the other, cause necessary repairs to be made upon the same, he may have his remedy by action for his reimbursement.2 5. The point was incidentally discussed in Loring v. Bacon, where the plaintiff, who owned the upper story of a house, the roof of which required repairs, caused the same to be made, and then brought an action of indebitatus assumpsit for contribution against the defendant, who owned the lower story and cellar of the house. In giving an opinion in the case, the judge, Parsons, refers to a case from Keilwey, where two of the judges were of opinion, that, if a man have a house underneath, and another have a house over it, the owner of the first house may compel the other to preserve the timbers of the house underneath; and so may the owner of the house above compel the other to repair the timbers of his house below, and this by an action on the case. But it [* 483] is said: "Some of the bar were of opinion that the owner of the house underneath might suffer it to fall; and yet all agreed that he could not pull it down to destroy the house above." And in Tenant v. Goldwin, Lord Holt doubted the law of the above. case. The judge then proceeds: "But there is unquestionably a writ at common law, de domo reparanda,5 in which A is commanded to repair a certain house of his in N., which is in danger of falling, to the nuisance of the freehold of B, and which A ought, and hath been used to repair. This writ, Fitzherbert says, lies, when ' Campbell v. Mesier, 4 Johns. Ch. 334. 2 Doane v. Badger, 12 Mass. 65, 70. 3 Keilwey, 98 b, pl. 4. 4 Tenant v. Goldwin, 6 Mod. 311; s. c. 2 Ld. Raym. 1089, 1093. 5 Fitzh. N. B. 296. a man who has a house adjoining to the house of his neighbor suffers his house to lie in decay, to the annoyance of his neighbor's house. And if the plaintiff recover, he shall have his damages, and it shall be awarded that the defendant repair, &c. . . . And there appears no reasonable cause of distinction in the cases, whether a house adjoin to another on one side or above or underneath it." He then goes on to show why, if the case in Keilwey is law, the plaintiff in the case under consideration could not recover. And adds: "If the case in Keilwey is not law, then, upon analogy to the writ at common law, the plaintiff cannot compel the defendant to contribute to his expenses in repairing his own house. But, if his house be considered as adjoining to hers (the plaintiff's), she might have sued an action of the case against him if he had suffered his house to remain in decay to the annoyance of her house. . . . We do not now decide on the authority due to the case in Keilwey, but, if an action on the case should come before us founded on that report, it will deserve a further and full consideration." 1 In the case of Stevens v. Thompson,2 the court held that one tenant in common could not hold his cotenant liable to contribute for the erection of new buildings upon the common property, but waived the question how far one can make another responsible for repairs made upon existing buildings. 3 But in Calvert v. Aldrich the court held that if one tenant in common make repairs in which the cotenant refuses to join, there is no remedy, at common law, by which he can recover of his cotenant any part of the expense; he should have partition before incurring the expense of the repairs. 6. The reasoning of the court in the above case of Loring v. Bacon goes to sustain a liability of one part-owner of a [* 484] * house to the other for neglecting to keep his own part in repair. But in Cheeseborough v. Green, the court of Connecticut insisted that no action at law could be maintained by the owner of a lower story of a house against the owner of the upper Loring v. Bacon, 4 Mass. 575. 217 N. H. 109. 3 99 Mass. 74. See also Converse v. Ferre, 11 Mass. 325; Co. Litt. 200 b, 11, Co. 82; Com. Dig. Estates, K. 8; Mumford v. Brown, 6 Cowen, 475. 4 Cheeseborough v. Green, 10 Conn. 318. |