procured a copyright upon her translation. The defendant has violated no duty to the plaintiff.1

Finally, the Revised Statutes of the United States provide that every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury.'

1 Stowe v. Thomas, supra. See Shook v. Rankin, 6 Biss. 477.

2 U. S. Rev. Sts. § 4967. See Perceval v. Phipps, 2 Ves. & B. 19; s. c. 13 Rev. R. 1, and Pref. to last-named; injunction to restrain publication of letters.

CHAPTER XII.

VIOLATION OF RIGHTS OF SUPPORT.

§ 1. INTRODUCTORY.

Statement of the duty. A owes to B the duty (1) to forbear to remove, to B's damage, the lateral support of B's land, while it lies in its natural condition, or while, under title by grant or prescription, it lies in an artificial condition; (2) to forbear to remove negligently, to B's damage, the lateral support of B's land with the superincumbent weight of buildings or materials thereon, adjacent to the boundary; (3) to forbear to withdraw, to B's damage, the subjacent support of his premises.

§ 2. OF LATERAL SUPPORT.

support of the land in its grant or prescription, in right of support of land

The owner of land has a right, against his neighbor, to what is termed the lateral support of the land. This right of lateral support is a right of natural condition, or, in case of an artificial condition; and this in its natural condition is, prima facie, a right analogous to the right to make use of a running stream or of the air. It is not in the nature of an easement, and does not depend upon prescription or grant.' But of course a right to remove the support may be acquired by grant,2 though

1 Bonomi v. Backhouse, El., B. & E. 622, 646; s. c. 9 H. L. Cas. 503. See Darley Colliery Co. v. Mitchell, 11 App. Cas. 127. 2 Rowbotham v. Wilson, 8 H. L. Cas. 348.

not by custom or prescription, because that, it is said, would be oppressive and unreasonable.1

This right of support of the land surrounding a man's premises, unlike rights of property in general, is not infringed, for the purposes of a suit for tort, unless removing the soil cause damage; 2 but damage being caused by the removal of support, a right of action arises. For example: The defendant, owner of premises adjoining the premises of the plaintiff, which are located upon the side of a declivity, excavates the earth of his land so closely to the boundary between his own and the plaintiff's property as to cause the soil of the plaintiff's premises, of its own natural weight, to slide away into the pit. This is a breach of duty to the plaintiff, for which the defendant is liable in damages.

3

The doctrine, however, goes no further than to sustain a right of action for the sinking of land in its natural condition. The action cannot be maintained if the sinking be due to a superincumbent weight placed upon the plaintiff's premises, unless indeed some distinct right has been acquired against the adjoining occupant. For example: The defendant digs a gravel pit in his premises close to the line between his own and the plaintiff's land. Within two feet of the line, on the plaintiff's land, stands a brick house, erected ten years before, and occupied by the plaintiff. By reason of the defendant's excavation, the

1 Hilton v. Granville, 5 Q. B. 701; Wakefield v. Buccleuch, L. R. 4 Eq. 613.

2 Bonomi v. Backhouse, supra.

Thurston v. Hancock, 12 Mass. 220; Cases on Torts, 325. See Gilmore v. Driscoll, 122 Mass. 199. Some doubt was cast upon this doctrine in a dictum in Radcliff v. Brooklyn, 4 Comst. 195, 203, on the ground that it might interfere in cities with the use of property. But this dictum has been disregarded. Farrand v. Marshall, 21 Barb. 409, 414; McGuire v. Grant, 1 Dutch. 356, 367. See Foley v. Wyeth, 2 Allen, 131.

premises being located on the side of a hill, it becomes necessary for the plaintiff to vacate his house, and to take it down, to prevent it from sliding into the defendant's pit. The defendant is not liable, since the plaintiff had acquired no legal right to the support of his house.1

A right to lateral support of buildings is in the nature of a right of easement, and in England can be acquired either by grant or by prescription.2 In this country the right cannot, it seems, be acquired by prescription. But even in England, though a building may have stood upon the plaintiff's premises for the period of prescription, if its walls were improperly constructed, so as for this cause to give way, and not by reason of the excavation alone, the plaintiff cannot recover. And the same would be true, if, within the period of prescription, a new story were added to the house, whereby the pressure was so increased as to cause the sinking.5

On the other hand, it is to be observed that the mere fact that there were buildings, recently erected, standing upon the border of the owner's land when it sank, will not prevent his recovering damages. If the soil sank, not on account of the additional weight, but on account of the operations in the adjoining close (though they were carefully conducted), and would have sunk had there been no buildings upon it, it is held in England that the person sustaining the damage is entitled to redress to the extent

1 Thurston v. Hancock, supra; Caledonian Ry. Co. v. Sprott, 2 Macq. 449; Partridge v. Scott, 3 M. & W. 220.

2 Dalton v. Angus, 6 App. Cas. 740; infra, p. 274.

3 Gilmore v. Driscoll, 122 Mass. 199, 207; Tunstall v. Christian, 80 Va. 1. Yet it has been common in this country to speak of the right as arising from grant or prescription. See Gilmore v. Driscoll, supra, and cases there cited.

4 Richart v. Scott, 7 Watts, 460; Dodd v. Holme, 1 Ad. & E. 493. 5 See Murchie v. Black, 34 L. J. C. P. 337.

of his loss. Clearly if the operation in the adjoining land were conducted with a negligent disregard to the rights of the plaintiff, and the effect of such negligence were the fall of the plaintiff's building, the adjoining occupant is liable therefor.2

But in the absence of negligence in the defendant, if the damage to the plaintiff's premises would have been slight and inappreciable had there been no superincumbent weight, he will not be entitled to recover. For example: The defendant digs a well near the plaintiff's land, which causes the same to sink, and a building erected there within twenty years falls. If the building had not been on the plaintiff's land, the land would still have sunk, but the damage to the plaintiff would have been inappreciable. This is no breach of duty.3

The result therefore is, (1) that the defendant is liable for the damages suffered by his neighbor from the withdrawal of the lateral support when that act, of itself, and without the fault of the neighbor, was the cause of the damage, including in England, but not in this country, damage done to sound buildings built twenty years or more before; though the excavation was carefully made. (2) He is liable for all the damage suffered by withdrawing the support when he was guilty of negligence, including in the damages injuries to soundly built buildings however recently erected. (3) He is not liable, in the

1 Stroyan v. Knowles, 6 H. & N. 454. But some courts hold that the value of the buildings could not be recovered, unless there was negligence; assuming that no right had been acquired by grant (or by prescription, if a right can so be acquired). Gilmore v. Driscoll, 122 Mass. 199, 206, 207.

2 See Gilmore v. Driscoll, supra; Charless v. Rankin, 22 Mo. 566, 574; Schrieve v. Stokes, 8 B. Mon. 453, 459; Dodd v. Holme, 1 Ad. & E. 493; Bibley v. Carter, 4 H. & N. 153.

8 Smith v. Thackerah, L. R. 1 C. P. 564.