124. Right to search for minerals under railways and canals. By the Railway Clauses Consolidation Act (8 & 9 Vict. c. 20), it is enacted (s. 77) in the case of the purchase of lands by any company constituted under that act, that the company shall not be entitled to any mines of coal, ironstone, slate, or other minerals under any land purchased by them, except such part thereof as shall be necessary to be dug or carried away, or used in the construction of the works, unless the same shall have been expressly purchased, and that all such mines, excepting as aforesaid, shall be deemed to be excepted out of the conveyance of such lands, unless they shall have been expressly named therein and conveyed thereby. And by s. 78 it is enacted, that if the owner, lessee, or occupier of any mines or minerals lying under the railway, or any of the works connected therewith, or within the prescribed distance, or where no distance shall be prescribed, forty yards therefrom, be desirous of working the same, such owner, &c., shall give notice in writing to the company of his intention; and if it appear to the company that the working of the mines is likely to damage the works of the railway, the company may, by giving compensation in the mode provided by the statute, () prevent the working of the mines. But if, within thirty days after the receipt of the notice, the company do not state their willingness to treat for the payment of compensation, the owner of the mines may work them in a manner proper and necessary for the beneficial working thereof, and atcording to the usual manner of working mines in the district, making good damage done to the railway or works by improper working. Similar provisions have been inserted in various acts of parliament incorporating canal companies, and enabling them to purchase lands for the formation of a canal, and the effect of them is to deprive the company of the right to support for the railway or canal from coal, ironstone, and slate, or minerals lying beneath the surface of the adjoining land, within the purchasing distance, or beneath the land over which the railway or canal is carried, unless they have purchased the slate or minerals, or compensation has been given in the manner prescribed by the statute. (m) Under statutory provisions of this sort, the company do (1) Post, ch. 16. (m) Great West. Rail. Co. v. Bennett, L. R., 2 H. of L. Ca. 27. Midland Rail. not in the first instance pay to the landowner more than the value of the surface in the shape of purchase-money, or for the injury to the surface, if compensation only is made for damage; the minerals remain the property of the owner of the soil; but where he is desirous of getting them, the company have the option of purchasing them at a fair price, to be settled, in case of dispute, in the usual way. These provisions, it has been observed, are for the benefit of the company, who are relieved from the great expense of buying the minerals along the whole line of an intended railway or canal in the first instance, before it is constructed; and are enabled to postpone the purchase of them until the time when, from the state of the market in the neighborhood, the owners really want to get them. When this happens, the company have an option either to buy, in which case the landowner can not get the mineral, but is fully compensated for the loss of that right or not to buy, in which case he receives no compensation at all, but his right to get them remains as complete as if no railway had been made. (n) These statutory provisions do not exclude the ordinary right of a purchaser to support from adjacent land situate beyond the purchasing limits; and, therefore, where a vendor has sold land to a railway company for the erection of a bridge or a viaduct, he can not excavate his own adjoining land, situate beyond the purchasing limits, so as to deprive the bridge or viaduct of the necessary adjacent support. (0) The 81st section of the 8 Vict. c. 80, enacts "that a railway company shall from time to time pay to the owner, lessee, or occupier of mines extending so as to lie on both sides of the railway, all such additional expenses and losses as shall be incurred by such owner, &c., by reason of the severance of the surface land, or of the continuous working of the mines being interrupted, or by reason of the same being worked so as not to prejudice the railway, and in case of dispute as to the amount of such losses and expenses," the same shall be settled by arbitration. An arbitrator may, under this section, include damage not actually incurred, but which will be necessarily incurred by the mine-owner, by reason of the sever (1) Dudley Canal Nav. Co. v. Grazebrook, I B. & Ad. 72. Stourbridge Canal Co. v. Dudley (Earl of), 30 Law J., Q. B. 108. London & North-West. Rail. Co. v. Ackroyd, 31 Law J., Ch. 588. (0) Elliot v. North-East. Rail. Co. 32 Law J, Ch. 402. N. E. R. Co. v. Crosland, 32 Law J., Ch. 353. ance, and the interruption in the working of his mines, if it be reasonably ascertainable. (p) It has been held that clauses in Canal Acts, requiring coalowners to give notice to canal companies of their intention to work their mines within a certain distance of the canal, and giving liberty to the company to inspect the works, and to prohibit the owners, upon compensation being made, from working within that distance, were framed for the purpose of enabling the company to purchase out the rights of the coalowners, if they thought their canal works likely to be endangered by the nearer approach of the miners; that if the company declined the purchase, the coal-owners were left to their common-law rights, as if no canal had been made, and they might take every part of their coal in the same manner as they might have done before the act passed, their former rights in that respect not having been taken away by the act, which has only appropriated the surface of the land, and so much of the soil as was necessary for the cutting and making of the canal, leaving the coal, &c., to the owners, to be enjoyed in the same manner as before. (q) "The difficulty which arose upon the Dudley Canal Act was this, that the wording of the clause there, doing no damage, was coupled with the power of the company to purchase, and it seemed, in the judgment of the court, to be a useless and frivolous clause, unless they gave a wider interpretation to the words working without doing damage,' because, they said, if it is to be a simple and absolute clause that no damage shall be done, it is a very idle thing to put the company upon the terms of purchasing." (r) But where there is no clause in the act requiring the railroad or canal proprietors to procure immunity from damage by purchasing the minerals, and authorizing them to make the purchase, the mine-owner can not work his mine so as to destroy or injure the railroad or canal. (s) And the same principle applies if the works and excavations of the mineowner, endangering a railway structure, are situate beyond the purchasing limits, so that the clause does not apply. (t) If a (p) Whitehouse v. Wolverhampton Rail., L. R., 5 Exch. 6. (2) Wyrley Canal Co. v. Bradley, 7 East, 371. (r) Wood, V.-C., North-East Rail. Co. v. Elliott, 29 Law J., Ch. 811. (s) Reg. v. Aire & Calder Nav. Co., 30 Law J., Q. B. 337. (1) North-East Rail. Co. v. Elliott, 2 De G. F. & J. 423; 30 Law J., Ch. 160; 32 Law J., Ch. 402. mine-owner, having worked up to the purchasing limits, gives notice to the company, and the company decline to purchase the minerals, and the mine-owner proceeds with the working of the mine under the railway, and the soil sinks, and the railway drains and drainage works become choked up or destroyed, and the surface-water from the railway percolates through the earth, and floods the mine, the railway company is in general bound by statute to make good the damage and rebuild the drains, and this from time to time, as the earth subsides. through the working of the mine. (u) 125. Servitude of support from one house to another, when built together so as to require mutual support.-Where a number of houses have been built together by one owner, so as to require and receive mutual support, there is, either by a presumed grant, or by a presumed reservation, a right to such mutual support for their common protection or security, so that if the houses are afterwards sold and conveyed,to different individuals, this mutual dependence of one house upon another, and right to mutual support, continues; and if several adjoining landowners by common consent and agreement, build their houses together, so that the house of one of them rests upon and requires the support of the adjoining house, there would be an implied grant of a right to mutual support, and the right would continue, notwithstanding alterations in the ownership of the houses by sale, mortgage, devise, &c. (a) But if two houses are built against each other, with separate and independent walls, resting upon separate and independent foundations, so as to stand independently of each other, one house has no right to an easement of support from the other. (y) 126. When separate floors of a building are granted to different proprietors.-If the owner of a house conveys the upper story to a purchaser, there is an implied grant of support from the lower stories, so that the owner of the latter can not interfere with the walls and beams upon which the upper story rests, (u) Bagnall v. Lond. & North-West. Rail. Co., 7 H. & N. 423; 31 Law J., Exch. 121. (x) Richards v. Rose, 9 Exch. 221. (y) Solomon v. Vintners Co., 4 H. & N. 598. Peyton v. Mayor of London, 9 B. & C. 736. Kempston v. Butler, 12 Ir. C. L. R. 516. 1 Thompson v. Miner, 30 Iowa, 356; Ottumwa Lodge v. Lewis, 34 Id. 67; Loring v. Bacon, 4 Mass. 575; Graves v. Bordan, 26 N. Y. 501; Calvert v. Aldrich 99 Mass. 74; Stevens v. Thompson, 17 N. H. 109. and prevent them from affording proper support. () And if a man builds a house, and forms each story or flat into a separate dwelling, and sells or lets the different stories of the house to different individuals, there is an implied grant to every purchaser or hirer of the rooms of all such adjacent and subjacent support as may be necessary for the maintenance and enjoyment of each respective dwelling. And when the different floors and flats of the same house are held as separate freeholds by different individuals, the owner of the lower rooms and foundations is in general bound to uphold and maintain the main walls and necessary supports of the rooms above. (a)' "Where I have a chamber below, and another has a chamber above mine, as they have here in London, in this case I may compel him who has the chamber above to cover his chamber for the salvation of the timber of my chamber below; and in the same manner he may compel me to sustain my chamber below, by the reparation of the principal timber, for the salvation of his chamber above." (b) There is a writ in natura brevium to a mayor, to command him that has the lower rooms to repair the foundation, and him that has a garret to repair the roof; and that is grounded upon a custom. (c) 3 If the owner of a house grants the upper rooms to be holden and enjoyed for life or in fee, reserving to himself the lower rooms, he impliedly undertakes not to do anything which will derogate from his own grant. If, therefore, he were to remove the supports of the upper room, he would be liable to an action. (d) And if he conveys the house to another by deed, reserving the lower story to himself, with powers of enlarging and altering such lower story, those powers must be exercised so as not to interfere with or endanger the necessary 1 Graves v. Berdan, 26 N. Y. 501; Ottumwa Lodge v. Lewis, 34 Iowa, 67. But see Cheeseborough v. Green (10 Conn. 318), where it was held that at law no liability existed on the part of the upper owner to repair. By the French Law, Code ment of repairs in such cases. Napoleon, Art. 664, provision is made for the adjust- |