underlying the plaintiff's close, upon which there are no buildings, in the careful and usual manner of working the mine so weaken the subjacent support to the plaintiff's close, without his consent, as to cause the same to sink and suffer injury. The defendants are liable for the damage sustained.1 It is laid down that there is a difference between rights of support against a subjacent owner of land and an adjacent owner in regard to buildings upon the dominant tenement. The right to the support of buildings, as has already been observed, depends upon grant, reservation, or (in England) prescription. But, as against an underlying freehold, the owner of the surface freehold is entitled, without grant or reservation, to the support of all buildings erected, however recently, before the title of the lower owner began and possession was taken. For example: The defendants are lessees and workers of a mine under the plaintiff's freehold. The plaintiff, at various times before the defendants began their works, and within twenty years thereof, erects buildings above the mines on ground honeycombed by the workings of another company some years before. The workings by the defendants increase the defective nature of the ground, and a subsidence of the surface follows; and from this cause and the fact that the plaintiff's buildings were not constructed with sufficient solidity, considering the state of the ground, damage ensues to the plaintiff's buildings. The defendants have violated their duty to the plaintiff by not shoring up and supporting the overlying tenement." The support required, in the absence of grant or prescription, appears, however, to be merely a reasonable 1 Humphries v. Brogden, supra. 2 Richards v. Jenkins, 18 Law T. N. s. 437. Of course, if the buildings would have fallen without the act of the defendants, they would not be liable for the damage to them. support. Whether the owner of the upper tenement could require the owner or occupant of the lower to support structures of extraordinary weight, is doubtful. The true view seems to be that when the owner of the whole property severs it by a conveyance either of the surface, reserving the mines, or of the mines, reserving the surface, he intends, unless the contrary be made to appear by plain words, that the land shall be supported, not merely in its original condition, but in a condition suitable to any of the ordinary uses necessary or incidental to its reasonable enjoyment.1 There is an analogous right of support in respect to the upper stories of houses divided into horizontal tenements. It is laid down that if a building is divided into floors or flats,' separately owned, the owner of each upper floor or 'flat' is entitled to vertical support from the lower part of the building, and to the benefit of such lateral support as may be of right enjoyed by the building itself. The same would (probably) be true if the stories of the building were leased to different persons. 1 Richards v. Jenkins, supra. In this case, however, Mr. Baron Channel inclined to think that, if the buildings were erected after the defendants took possession, the period of prescription should elapse before a right to their support could be acquired. 2 Dalton v. Angus, 6 App. Cas. 740, 793; Caledonian Ry. Co. v. Sprot, 2 Macq. 449. CHAPTER XIII. VIOLATION OF WATER RIGHTS. § 1. INTRODUCTORY. Statement of the duty. A, a riparian proprietor or mill owner, owes to B, a riparian proprietor below, on the same stream, the duty to forbear taking, except for domestic purposes, or for the needs of a mill suited to the size of the stream, anything more than a usufruct of the water thereof. § 2. OF USUfruct and ReASONABLE USE OF STREAMS. Riparian proprietors have rights in the water of the streams flowing by or through their lands, which may be thus stated: Each proprietor is entitled to the enjoyment of the water ex jure naturæ, as a natural incident to the ownership of the land. And the right is like ordinary property rights in this, that an action may be maintained for an infraction though no actual damage has been sustained.2 Examples from the authorities just cited will presently appear. There have been some expressions by the courts, and one or two decisions, to the effect that the right to the use of a running stream is absolute, like the right to the enjoyment of land; so that any diminution of the water by an upper proprietor is deemed actionable if he has not a 1 Embrey v. Owen, 6 Ex. 353, 369, Parke, B. right by grant, or by prescription, just as an entry upon land without license is actionable.1 And this view has been urged in England.2 The true principle, however, is that each riparian owner has at least a right of usufruct (' usus-fructus') in the stream, subject to the rights, whatever they may be, of the riparian owners higher up, but that no one can have an absolute right, for any and every purpose, to the whole volume of water. That is, there can be no infraction of the right by any abstraction of water which does not sensibly affect its volume. Without such an act, the usufruct is not interfered with, and the right of other proprietors has not been infringed. It is only for an unreasonable use that an action will lie.* What amounts to an unreasonable use of a stream will vary according to the circumstances of the case. To take a quantity of water from a large stream for agriculture or for manufacturing purposes might cause no sensible diminution of the volume; while taking the same quantity from a small brook passing through many farms would be of great and manifest injury to those below who need it for domestic or other use. This would be an unreasonable use of the water, and an action would lie therefor.5 The same would be true if a mode of enjoyment quite different from the ordinary one should be adopted, sensibly diminishing the volume of water for any consider 1 Wheatley v. Chrisman, 24 Penn. St. 298. See Crooker v. Bragg, 10 Wend. 260. 2 See the arguments in Embrey v. Owen, 6 Ex. 353. 8 Embrey v. Owen, supra; Mason v. Hill, 2 Nev. & M. 747; s. c. 5 B. & Ad. 1; Miner v. Gilmour, 12 Moore, P. C. 131; Sampson v. Hoddinott, 1 C. B. N. s. 590. 4 Embrey v. Owen, supra. Elliot v. Fitchburg R. Co., 10 Cush. 191; Cases, 352; Miner v. Gilmour, 12 Moore, P. C. 131. able time.1 For example: The defendant, an upper riparian owner, diverts much water from the stream into a reservoir, and delays it there to supply a factory; this being an extraordinary use of the stream. The act is a breach of duty to the plaintiff, a lower owner.2 Again: The defendant owns a great tract of porous land adjacent to a stream, the water of which he diverts by canals, in order to irrigate his land, sensibly diminishing the stream. This is a breach of duty to the plaintiff, an owner lower down.8 These examples illustrate the rule that the action does not require proof of special damage. A stream may be much reduced in size without causing any actual loss to lower proprietors; but the right being to a full volume of water, the diminution of the stream in any sensible, material degree by the upper proprietor is an infraction of that right, and accordingly creates liability. If, on the other hand, there is no infraction of the right, there is no liability whatever the use. For example: The defendants erect a dam across a stream and take a considerable part of the water; but the amount so taken is made good by other water which the defendants let into the stream, and the plaintiff in fact sustains no damage. There is no infraction of the plaintiff's right, and no cause of action.4 Again, every riparian proprietor may use the water of the stream for his natural domestic purposes, including the needs of his animals, and this without regard to the 1 Sampson v. Hoddinott, 1 C. B. N. s. 590. 2 Wood v. Waud, 3 Ex. 748, 781. 3 Embrey v. Owen, 6 Ex. 353, 372. 4 Elliot v. Fitchburg R. Co. 10 Cush. 191; L. C. Torts, 509. See also Seeley v. Brush, 35 Conn. 419; Chatfield v. Wilson, 31 Vt. 358; Gerrish v. New Market Manuf. Co. 30 N. H. 478, 483; Dilling v Murray, 6 Ind. 324. |