den treasures which the great laboratory of nature has provided for man's use in the bowels of the earth. Some of them, at least, are necessary to his comfort. Coal, oil, gas, and iron are absolutely essential to our common comfort and prosperity. To place them beyond the reach of the public would be a great public wrong. Abounding, as our State does, with these mineral treasures, so essential to our common prosperity, the question we are considering becomes of a quasi public character. It is not to be treated as a mere contest between A. and B. over a little corner of earth. We have already seen that, when the owner of the surface parted with the underlying coal, he parted with nothing but the coal. He gave no title to any of the strata underlying it, and it is not to be supposed for a moment that the grantor parted with or intended to part with his right of access to it. We are of opinion that he has such right of access. The only question is how that right shall be exercised, by what authority, and under what limitations. While we do not fully sustain the reasons given by the learned judge below, we will not interfere with this decree for another reason. The plaintiff company has not yet sustained any irreparable injury by reason of the sinking of these wells, and it may never do so. We find ourselves upon a new road, without chart or compass to guide us, and we propose to move slowly. . . . For these reasons we will not disturb the decree of the Court below. The appellant company has its remedy at law, and to that we will remit it. The decree is affirmed, and the appeal dismissed, at the costs of the appellant. WILLIAMS, J. I concur in the decree made in this case, and in the opinion which so ably vindicates it, but I would go further. I would lay down the broad proposition that the several layers or strata composing the earth's crust are, by virtue of their order and arrangement, subject to reciprocal servitudes; and, as these are imposed by the laws of nature, and are indispensable to the preservation and enjoyment of the several layers or strata to and from which they are due, the Courts should recognize and enforce them. . . . GREEN and MCCOLLUM, JJ. We fully concur in this opinion.1 1 [ESSAYS: Simeon E. Baldwin, "The Law of the Airship." (1910, American Journal of International Law, IV, 95.) Arthur K. Kuhn, "Aerial Navigation in its Relation to International Law." (1908, Proceedings of the American Political Science Association, 1908, p. 83.) Lyttelton Fox, "The Law of Aerial Navigation." (1909, North American Review, CXC, 101.) C. C. Moore, "Aerial Navigation Law." (1908, Law Notes, XII, 108.) "Subterranean encroachments of earth." (H. L. R., VI, 100.) "Trespass by underground mining: accrual of action." (H. L. R., IX, 147.) "Quicksand under surface: removal by adjoining landowner." (H. L. R., X, 183.) "Disseisin of surface: whether disseisin of underlying strata." (H. L. R., XI, 417.) SUB-TOPIC B. AFFLUENT ELEMENTS 242. WILLIAM ALDRED'S CASE KING'S BENCH. 1611 9 Co. Rep. 57 a WILLIAM ALDRED brought an Action on the Case against Thomas Benton, which began Trin. 7 Jacobi, Rot. 2802. in Banco, that whereas the Plaintiff, 29 Septemb' anno 6 Jac. was seised of an House, and a Parcel of Land in Length 31 Feet, and in Breadth 2 Feet and a half, next to the Hall and Parlour of the Plaintiff of his House aforesaid in Harleston in the County of Norfolk in Fee; and whereas the Def, was possessed of a small Orchard on the East Part of the said Parcel of Land. (1) Praedictus Thomas malitiose machinans & intendens ipsum Willieum de easiamento & proficuo messuagi & parcelli terrae suorum praedictorum impedire & deprivare, the said 29 Day of Septemb. anno 6 Jacobi quoddam magnum lignile in dicto horto ipsius Thomas construxit & erexit, ac illud adeo exaltavit, &c. quod per lignite illud, &c. tam omnia fenestrae & luminaria ipsius Willielmi aulae & Camerarum suarum, quam ostium ipsius Willielmi aulae suae praedictae penitus obstupata fuerunt, &c. (2) & praedictus Thomas ulterius machinans & malitiose intendens ipsum Willielmum multipliciter praegravare, & ipsum de toto commodo, easiamento & proficuo totius messuagii sui praedicti penitus deprivare, praedicto 29 die Sept. anno 6 supradicto, quoddam aedificium pro suibus & porcis suis in horto suo praedicto tam prope aulam & conclave ipsius Willielmi praedict erexit, ac sues & porcos suos in acdificio in horto illo posuit, & illos ibidem per magnum tempus custodivit, ita quod per faetidos & insalubres odores sordidorum praedictorum suum & porcorum praedicti Thomae in aulam & conclave praedictam ac alias partes praedicti messuagii ipsius Willielmi penetrantes & influentes, idem Willielmus & famuli sui, ac aliae personae in messuagio suo praedicti conversantes & existentes, absque periculo infectionis in aula & conclavi praedicta ac aliis locis messuagii praedicti continuare seu remanere non potuerunt. Praetextu cuius idem Willielmus totum commodum, usum, easiamentum, & proficuum maximae partis messuagii sui praedicti per totum tempus praedictum totaliter perdidit & amisit ad damnum ipsius "Asphalt under surface: removal by adjoining owner." (H. L. R., XIII, 299.) "Overhanging building: injunction: balance of convenience." (H. L. R., XIV, 300.) What constitutes a trespass: Encroachments on land above and below surface." (H. L. R., XIX, 369.) Willielmi 40 l. &c. And the Defendant pleaded Not guilty; and at the assises in Norfolk he was guilty of both the said Nusances, and Damages assessed. And now it was moved in arrest of Judgment. But it was resolved, That the Action for it is (as this Case is) well maintainable; for in a House 4 Things are desired, habitatio hominis, delectatio inhabitantis, necessitas luminis, & salubritas aeris, and for Nusance done to three of them an Action lies, sc. 1. to the Habitation of a Man, for that is the principal End of a House, 2. For Hindrance of the Light; for the ancient form of an Action on the Case was significant, sc. quod Messuagium horrida tenebritate obscuratum fuit, therewith agree 7 E. 3. 50 b. 22 H. 6. 14. by Markham, II H. 4. 47. And as to this there was a Case adjudged in the King's Bench, Trin. 29 El. Tho. Bland brought an Action on the Case against Thomas Moseley, and declared how that James Bland was seised in Fee of an ancient House in Netherousegate in the Parish of St. Michael in the County of the City of York; and that the said James, and all those whose Estate he had in the said House, from Time whereof, &c. have had and have used to have for them and their Tenants, for Life, Years, and at Will in the West side of the said House seven Windows or Lights against a Piece of Land containing half a rood, in the Parish aforesaid, adjoining to the said House, which Piece of Land from Time whereof, was without any building, until the 28 Day of Septemb. anno 28 El. and shewed the Length and Breadth of the said Windows for all the Time aforesaid, by force of which Windows the said James, and all those whose Estates he had in the said House from Time whereof, &c. have used to have for them and their Tenants aforesaid divers wholesome and necessary Easements and Commodities, by reason of the open Air and Light, &c. And that the said James the 20 Sep. an. 28 El. demised to the Pl. the said House for 3 Years; and that the Def. maliciously intending to deprive him of the said Easements, & obscurare Messuagium praedictum horrida tenebritate, &c. 20 Nov. ann. 29 Eliz. had erected a new Building on the said Piece of Land, so near &c. that the said 7 Windows were stopped, whereby the Pl. left the said Easements, &c. Et maxima pars Messuagii praedicti horrida tenebritate obscurata fuit, &c. In Bar of which Action the Defendant pleaded, quod infra praedictam civitatem Eboracum talis habetur, & a toto tempore cuius contrarii memoria non existit, habebatur consuetudo, videlicet, quod si quis habuerit fenestras & visum per easdem versus terram vicini sui, vicinus ille visum illarum fenestratum obstruere super terram illam solebat & posset, sicut melius viderit sibi expedire; by Force of which Custom he justified the stopping of the said Windows; and upon that the Pl. demurred in Law; and it was adjudged by Sir Chr. Wray Ch. Justice, and the whole Court of K's Bench, That the Bar was insufficient in Law to bar the Pl. of his Action, for two Reasons: 1. When a Man has a lawful Easement or Profit, by Prescription from Time whereof, &c. another Custom, which is also from Time whereof, &c. can't take it away, for the one Custom is as ancient as the other. . . And Wray Ch. Justice then said, That for stopping as well of the wholesome Air as of Light an Action lies, and Damages shall be recovered for them, for both are necessary, for it is said, & vescitur aura aetherea; and the said Words horrida tenebritate, &c. are significant, and imply the Benefit of the Light. But he said, That for Prospect, which is a Matter only of Delight, and not of Necessity, no Action lies for stopping thereof, and yet it is a great Commendation of an House if it has a long and large Prospect, unde dicitur, Laudaturque domus longos qui prospicit agros. But the Law don't give an action for such Things of Delight. And Solomon says, Ecclesiast. 11. 7. Dulce lumen est & delectabile oculis videre solem. Et olim (ut Plutarchus in Conv. 7. Sap. resert.) Rex AEthiopum interrogatus Quid optimum? respondebat, Lucem; quis enim natura duce tenebras non exhorrescit? And if the Stopping of the wholesome Air, &c. give Cause of Action, a fortiori an Action lies in the Case at Bar, for infecting and corrupting the Air.1 243. LETTS v. KESSLER SUPREME COURT OF OHIO. 1896 54 Oh. St. 73, 42 N. E. 765 ERROR to the Circuit Court of Cuyahoga County. The plaintiff below, defendant in error here, filed her petition in the Court of Common Pleas against defendant below, plaintiff in error here, averring that she was the owner by purchase under a land contract of certain premises in the city of Cleveland, that defendant owned and occupied the lot on the east side thereof, that she used her premises as a hotel and boarding house, that he was erecting a high board fence on his ground which would obstruct her windows and deprive her of light and air, that said fence was not being erected for any useful or ornamental purpose, but from motives of pure malice alone, and for the express malicious purpose of annoying plaintiff, and excluding light and air from her house so as to render her house uninhabitable, to injure the value thereof, and that said fence would exclude the light and air and thereby greatly injure the value of her house. She prayed that he might be restrained from completing said fence, and that upon the final hearing a mandatory injunction might compel its removal. Defendant below demurred to this petition, and the demurrer was overruled and exceptions taken. The ruling upon this demurrer is 1 [VINER, Abridgment, (1622, “Nuisance," G.). Winch, J., said that where one erected a house so high that the wind was stopt from the windmills in Finsbury Fields, it was adjudged that the house should be broken down. Winch 3, Pasch. 19 Jac. [1622], Anon.] He then filed an answer in reported in 7 Circuit Court Rep. 108. substance a general denial, with an averment that the fence was erected to prevent the rush of water and eve drip from her premises onto his. This she denied in her reply. The case went to the circuit on appeal, and that Court overruled the demurrer, and on the trial made a finding of facts containing in substance the allegations of the petition. . L. A. Willson and Edward David, for plaintiff in error. When we let down the bars and begin to inquire into men's motives, we enter upon dangerous ground. The law is that the motive makes no difference. The maxim: "So use your own as not to injure another's property," entends only to legal injuries, and does not condemn the darkening of another's windows, or depriving him of a prospect, by building on one's own land, where no right has been acquired by rant or prescription. C. J. Estep and S. S. Ford, for defendant in error. We also do not contend that in Ohio we can acquire by use or prescription, an easement in light and air to be supplied to one's windows from the premises of another. . . . The doctrine we contend for is not inconsistent with the law as we concede it to be, when we assert that a man cannot, being actuated by malice alone, and with the purpose of annoying his neighbor, and rendering his property undesirable, and subserving no useful or ornamental purpose, erect a structure to close up his windows. BURKET, J. The only question in this case arises upon the following findings of fact by the Circuit Court: "Said structure was erected upon the land of the defendant and belonged to him. The structure was erected by said defendant from motives of unmixed malice toward said plaintiff, and for no useful, or ornamental purposes of the property of said defendant." It is not claimed that the person of the plaintiff was interfered with in this case, so that we have for consideration only the rights of property. The fence complained of is upon the land of the defendant and belongs to him. Plaintiff fails to aver, and the Court fails to find, that she has any right to, or upon, the lot of defendant below by contract, statute, or any other way known to the law for acquiring a right to, in, or upon lands, unless such right may be acquired by, and transferred to her, by means of the aforesaid "motives of unmixed malice." This is a manner of acquiring on the one hand, and of transferring on the other, a right to property unknown to the law. But it is urged in her behalf, that even if she had no right of property, and even if he was the owner of the lot, that he could not use his own land for the purpose of erecting structures thereon which subserve no useful or ornamental purpose, and are erected through motives of unmixed malice towards his adjoining neighbor. It is and must be conceded that he might, by erecting a building on his lot, shut off her light and air to exactly the same extent as is done |