tion, because it would not pay them. They frequently spoke of the ditch as theirs, protected it from destruction, and refused to sell it. It was held that there was not an abandonment.

II. SUBTERRANEAN STREAMS AND PERCOLATIONS.

The owner of minerals or mining lands may interfere with the course of subterranean waters, provided it is necessary in the course of his mining operations, and he has acted without negligence or malice. In such a case, whatever injury may have been caused to the springs or watercourses of neighboring or of surface owners is damnum absque injuria. Springs upon the lands of another may thus be totally destroyed without creating a legal injury. If, however, the destruction or injury is caused with malice or by negligence, the owner of the spring is entitled to damages. And where the spring that has been destroyed owes its source to a distinct watercourse, whose existence is known to the mine owner, or to percolations which his knowledge of the geological formation of the land would cause a reasonable expectation that he would disturb by his operation, and if in addition to this knowledge it appears that he, by reasonable precautions in ordinary use, and without material detriment to himself, might have preserved the watercourse or percolations from injury or diversion and the spring from contamination or destruction, his failure to do so is negligence.

Ellis v. Duncan, 21 Barb. 230 (1855). The owner of

New York. a farm may open and work a quarry upon it, although by doing so he intercepts one of the underground sources of a spring on his neighbor's land, which supplies a stream flowing partly through the land of each, and thereby diminishes the supply of water to his neighbor's injury. Men are presumed to acquire title to land with a full knowledge of what is visible, and of the rights which result therefrom, but they cannot be supposed to acquiesce in an appropriation of streams of whose existence they are not generally aware.

The owner of

Wheatley v. Baugh, 25, 528 (1855). Pennsylvania. land who, in the use of his property for mining pur

poses, interferes with the subterranean flow of water and thus destroys a spring on his neighbor's land, is not liable for the damages thus done unless he is guilty of malice or negligence. Maguire v. Howard, 40, 391 (1861). The owner of coal land on which were a dwelling and a well of water, having sold the coal, afterwards sold the surface, part of the purchase money being secured by bonds and mortgages. In the bonds it was provided that the pur"bound for the sinking of a well below the coal, or otherwise to obtain water for family purposes, provided the same be

chasers were

necessary by reason of failure of water in the well then dug within two years." The failure of the water within the time, the neglect of the vendor to make it deeper or dig another, and the expenditure by the vendee in sinking the well of an amount greater than the amount of the only bond remaining unpaid, discharges the latter from the payment of the bond. The condition of the bond was a guarantee by the vendor that the water would not fail, whether by natural means or by the mining of coal. For though the vendee knew of the grant of the coal to another, so, also, did the grantor in accepting the bond.

An offer by the vendor to dig a new well at the outcrop of the coal, several hundred feet from and much lower than the house, so that the water would be useless for family purposes, was not a compliance with the condition of the bond.

Haldeman v. Bruckhart, 45, 514 (1863). An owner of land, who in mining upon it drains off water and interferes with its subterranean flow either in a well defined stream or by percolation, and thereby destroys a spring on the land of an adjoining owner, is not, in the absence of malice and negligence, liable in damages therefor.

Coleman v. Chadwick, 80, 81 (1875). The owner of the surface cannot recover for the loss of springs occasioned by the ordinary operation of mining by the owner of the substrata.

Trout v. McDonald, 83, 144 (1876). Destruction of a spring belonging to the surface owner, if a necessary incident to mining, is damnum absque injuria.

Gumbert v. Kilgore, 6 Cent. Rep. 406 (1886). See this case on page 683, post.

Collins v. Chartiers Valley Gas Co., 131, 143 (1890). The rule that for unavoidable damage to another's land, in the lawful use of one's own, no action can be maintained, does not exempt a land owner from all obligations to pay regard to the effect of his operations on subterranean waters. The distinction between rights in surface and in subterranean waters is not founded on the fact of their location above or below ground, but on the fact of knowledge, actual or reasonably acquirable, of their existence, location and course; in either case the rule of damnum absque injuria applies only in the absence of negligence. If a person boring for oil or gas have knowledge that neighboring water wells are supplied from a stratum of clear water underlying his land, and that there is a deeper stratum of salt water likely to rise and mingle with the fresh, when penetrated in such boring, and may prevent this mingling by a reasonable outlay, his failure to use the means available therefor is negligence.

Collins v. Chartiers Valley Gas Co., 139, 111 (1891); s. c. as 131, 143, which is followed here. The rule there stated is not confined to actual knowledge of the particular subterranean stream of water. The defendant is liable where his knowledge of the general geological formation was such as to cause a reasonable expectation that the working would cause a commingling of salt water with fresh water, which in its percolation supplied the wells of the neighborhood.

"The question in this case relates not to the right, but to the manner of its exercise. The defendant had a right to drill in search of natural gas, but it was bound to exercise this right in a reasonable

manner, and with due regard to the rights of others. In its search for gas it had to drill through nearly two thousand feet of the earth's crust, with its successive layers or strata of rock, gravel, slate, and other substances, and their veins of water, fresh and salt. In the ordinary course of drilling, these veins of water had to be cased out of the well, and the jury have found on abundant evidence that at a small additional expense, by a process well known and easily applied, and in more or less frequent use throughout the oil and gas districts of Pennsylvania, they might have been kept from mingling, and the wells in the neighborhood saved thereby. If so, then the maxim sic utere tuo ut alienum non lædas applies, and the defendant is liable, not because it has necessarily injured the plaintiffs in the exercise of its own legal right, but because it has injured them unnecessarily by the neglect of such reasonable precautions as might and should have been taken to protect them. According to the testimony, this gas well was drilled with the knowledge of the fact that salt water was to be encountered; that it could be confined to its own bed; that, if it was not, the whole neighborhood would be spoiled,' and that there were many wells near by in the borough of Glenfield to be affected by their care or want of it in this particular. Yet no effort whatever was made to shut off the salt water, or to avoid the destruction of the wells which it was practicable to save. The ground of the defendant's liability is negligence, the want of reasonable care, under the circumstances, for the rights of others." The drilling here was done by a contractor, who was not required by his contract to use any of the appliances usual and necessary to prevent the pollution of water. The contract contained, as to this matter, the clause, "All springs to be fully protected from damage, and drillings to be carried from the wells to such point as will do the least damage to property possible." This the court below charged did not relieve the gas company of responsibility, as the contractor was not required to shut off the salt water from the fresh so as to protect it. This was assigned as error in the court above, but the judgment was affirmed without mention of this point.

CHAPTER XXI.

RIGHTS OF SURFACE AND LATERAL SUPPORT.

L Surface Support.

II. Lateral Support.

I. SURFACE SUPPORT.

WHERE there has been a horizontal division of the land, the owner of each subjacent estate owes to the owner of the superincumbent estate the support of his land in its natural condition, and the owner of the superincumbent estate has conversely a right to this support. This is an absolute proprietary right, necessarily arising out of the ownership of the surface, and not an easement depending upon a grant.

The mine owner in taking out his minerals must leave sufficient support for the superincumbent land. This he may do by leaving ribs or pillars, or by constructing artificial supports. If he fails. to do this and the land sinks, he is liable for the damage that occurs to the surface owner by reason thereof, and he may be enjoined from the further removal of minerals.

Whether the mine owner has worked his mine skilfully or negligently does not affect the existence of the right to surface support. The right is absolute, and causing the subsidence of the surface by mining beneath it is negligence, however carefully or in accordance with usual practice the operation may have been conducted. The owner of the minerals has a right to so much only as he can take out without injury to the surface. In an Iowa case the right to surface support was held to depend upon want of ordinary care in the removal of the minerals; but this is at variance with authority and reason, and the general rule has been subsequently correctly stated in that State. The surface owner's right is likewise unaffected by his knowledge of the state of the mines or the method of working them, nor can it be controlled by a custom to take out all the minerals without provision for support.

Though the right of surface support is absolute, yet the subjacent owner may be relieved of the corresponding obligation by a release from the surface owner, or by the terms of the instrument creating his estate. But upon him who thus attempts to control the rule of law, lies the burden of proof. To destroy or injure the surface, there must exist some statutory or contract authority. The intention to part with the right of surface support must appear by plain and explicit language in the grant of the minerals, or by an express exception from a reservation of them. It may not be taken away by mere implication from language not necessarily importing such a result. It is not accomplished by a grant or reservation of all the minerals under the land, or of all the privileges necessary to their convenient working; nor do special provisions as to support relieve the mine owner from any further duty toward the surface owner. The immunity gained to the owner of minerals by an express covenant extends to his lessee. And such a release is binding upon the grantor and those taking title under him, but not upon the State or its grantee entering by right of eminent domain. But where recorded articles of agreement to sell the minerals do not contain. such a release of the obligation to furnish support for the surface, purchasers of the surface are affected only with the notice of what was recorded, and not with a provision in a subsequent unrecorded deed absolving the mine owner from this duty, and they consequently are not bound by the latter.

The mine owner cannot be relieved of his obligation by parol evidence that at the time of the grant the grantor told him that the mining of the coal would let the surface down.

The surface owner's right is to the actual support of the land in its natural condition. It does not extend to the support of buildings erected upon the surface, and the mine owner may mine so that the buildings fall, provided his mining would not have injured the surface in its natural state. On the other hand, the mere presence of buildings does not prevent a recovery for injury to the surface, unless it be shown that the subsidence was due to their presence; but the presumption is that the removal of the minerals caused the subsidence. If this is the case, if the surface has subsided because of the mine owner's failure to furnish sufficient support to keep it in its natural condition, he is liable for injury to ordinary buildings that may have been erected on the surface