ducted in a careless or improper manner.

Held, the doctrine of lateral support has no application in such a case, where the very purpose of locating is to tear down and wash away the ground. The defendant would be liable for the amount of gold taken from the gravel that fell from plaintiff's claim, but for the fact that in this case its value was less than the necessary cost of extraction.

Schultz v. Bower, 57, 493 (1894). "The right of iatMinnesota. eral support from the adjacent soil is an absolute right of property; and, as a consequence of this principle, it follows that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation on an adjoining tract, the owner has a legal remedy against the party by whom the mischief has been done. This remedy does not depend upon negligence, but upon the violation of the right of property. This unqualified or absolute right of lateral support applies only to the land itself, and not to the buildings or other artificial structures. Where one, by digging in his own land, causes the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other's land to fall."

Victor M. Co. v. Morning Star M. Co., 50 Ap. 525 Missouri. (1892). The right to lateral support applies only to the land in its natural state, and not to the weight increased by artificial structures, nor when the self-supporting power of the land has been diminished. Where the plaintiff, in conducting his operations, has not left the pillars and other supports necessary to insure the safety of the superincumbent earth, on which he has heavy structures and operates machinery, he is not entitled to lateral support from his neighbor, and cannot enjoin him from mining with ordinary care up to the line when the earth is such that a perpendicular wall would sustain its own weight and the natural pressure thereon by the power of its own coherence. If defendant should mine carelessly, so as to cause the caving or subsidence of plaintiff's land, he would be liable in damages.

Gourdier v. Cormack, 2 Smith, 200 (1853). Where, in New York. blasting rocks on his own land, an owner threw stones upon an adjoining lot, and so extended his blast as to forcibly split out the rock on the adjoining lot, undermining the foundation of the house thereon and rendering it insecure, he was liable in damages to the tenant of the adjoining lot.

Farrand v. Marshall, 21 Barb. 409 (1855). The right of lateral support is an incident to the land, a right of property naturally and necessarily attached to the soil. A proprietor has the entire dominion of his own, and he may use his land as he pleases, so long as he does not disturb the dominion or rights of others to the beneficial use of their land. An owner of land has the right to the support of his land in its natural condition by his neighbor's land. The latter may excavate his soil to any depth he pleases, but he may not deprive the former of this support. Hence where plaintiff's land was in its natural condition, and the adjoining owner had excavated his land, for the purpose of making bricks, to a depth of fifty feet, whereby plaintiff's land was beginning to sink and crack, and defendant had given notice that he would continue his excavations up to the dividing line

and to an indefinite depth, he will be enjoined from digging so near the line as to do any injury to plaintiff's land.

Ryckman v. Gillis, 57, 68 (1874). Defendant sold and conveyed by warranty deed to plaintiff's grantee a piece of land, reserving the right to enter upon a portion thereof, particularly described, "at all times thereafter, so long as the clay and sand may last or be used for brick-making purposes," and to dig and take therefrom the clay and sand that may be found thereon fit for brick making. In digging and removing the clay and sand, some of the adjoining land fell into the excavations. Held, an action to restrain defendant from removing so much of the soil as was necessary to furnish lateral support to the adjoining land could not be maintained. "The plaintiff and defendant were not contiguous owners of different pieces of land; the former owned the fee, the latter had only an incorporeal right to excavate the reserved clay and sand upon a specifically described part of the land. The doctrine of lateral support and other rights incident to and affecting lands adjacent to each other, owned by different proprietors, has no application to such a case."

The right of support might have been expressly secured to the owner in fee of the land by the deed, but here "the intention of the parties is carried out by a reservation of the right; and that form of securing it was, I think, adopted with the intent of relieving the land designated for its exercise from the burden of supporting that adjacent thereto, to which an exception of the land itself from the grant would have subjected it." Pennsylvania.

Wier's Ap., 81, 203 (1874). The defendant's land was on a steep slope of a hill, and was used for quarrying stone; the plaintiff, who adjoined, had made a roadway, by embanking and supporting it by a wall.

Defendant, by stripping his land and quarrying, brought down the plaintiff's land; but this was found to be by removing its natural support, and not by reason of the weight of the wall and embankment. The defendant was enjoined from quarrying, excavating, or stripping his land so near the plaintiff's as to take away the natural lateral support, which was found by the master to be forty feet, with privilege to defendant to make a nearer approach upon making a substantial support to plaintiff's land.

CHAPTER XXII.

MINING ON THE LAND OF OTHERS.

- TRESPASS.

To excavate and take minerals from the land of another without his consent is a trespass, whether this be done by going upon the land and taking out minerals, by mining over the boundaries thereof on the surface or subterraneously, or by working into the dip of a vein which is within the operation of the apex rule and belongs to another. It is likewise a trespass to enter upon premises in the actual possession of another for the purpose of performing the acts necessary to constitute a location; such an entry cannot be the basis of acquiring title. One who enters the side lines of the lode location of another is prima facie a trepasser, but he may rebut the presumption by showing that he is following the dip of his own vein.

The injured party may have his remedy in an action of trespass against the wrongdoer, or he may bring trover for the minerals taken against whomsoever he finds in possession thereof, or he may waive the tort and bring an action of assumpsit for their value. He may also reclaim the minerals as his property, if he can identify them, in whosesoever hands he finds them (provided they have not become attached to real estate), and for this purpose may maintain an action of replevin. Where, however, the minerals are taken by one in adverse possession, in the exercise of a colorable title, without force or fraud, trespass or trover will not lie. In addition to these legal remedies, the owner of land. or min-. erals may have an injunction against one who wrongfully takes minerals from his mines. This equitable remedy is the subject of another chapter.2

It is the duty of a mine owner, as of any one else, not to encroach upon his neighbor's land. He is obliged to know the boundaries, and to keep upon his own side of them. When he

1 Actual possession is rendered unnecessary in Colorado by Laws 1893, p. 349, M. A. S. Supp. 3164 a.

2 Chap. XXIII., Div. III., "Injunction.” 8 For statutes requiring the leaving of walls and pillars, see ante, p. 632.

mines near to the boundary, if it is indistinct or indefinite, it is his duty to ascertain it by survey. The rule that the owner or lessee of a mine must ascertain its boundaries at his peril has, however, no application between lessor and lessee, where adjoining mines belong to the same person and are leased by them to different lessees. The lessor in such a case had the power to protect himself by covenant, and neglecting to do so, he cannot take advantage of a rule existing ex necessitate rei. Even if by the terms of the lease it became the lessee's duty to mark a theoretical division line, an encroachment beyond it, in an honest attempt to ascertain it, would not constitute a trespass. The lessee would only be liable for negligence or improper mining. Where one adjoining owner points out an incorrect division line to his neighbor, he will be estopped from denying it to be the true line, if at the time he knew it was not such, and his neighbor was ignorant thereof. But if he in good faith pointed out an incorrect line, he is not estopped, but may subsequently, upon the ascertainment of the correct line, treat his neighbor as a trespasser if the latter persist in disregarding the true boundary.

As it is the duty of him who takes minerals to know whence he takes them, it is likewise his duty to know when he has taken them. And if he sets up as a defence to an action that a part were taken before the plaintiff acquired title, he must show what part. Where one is mining near the boundary of his land, he should keep an accurate account of what he takes out. If he fails to do so, evidence as to its value will be most strongly construed against him. If he refuses to allow an inspection by the adjoining owner, who suspects that he is mining over the boundary, equity will order an inspection, and will likewise decree an account pending a dispute as to the exact situation of the boundary.1

Subterranean trespasses are peculiarly susceptible of concealment from the injured owner, and it is generally within the power of the trespasser, by failing to disclose the trespass, to pre

1 See Chap. XXIII., Div. V., “Inspection" In some States this right of sur vey and examination has been secured and defined by statute. Colorado, M. A S. 3164; Dakota, Comp. L. 1887, ch. 19, art. 1, sec. 2014; Idaho, Rev. Stats. 1887, sec. 4542; Illinois, Hurd's Rev. Stats. 1895, ch. 94, secs. 2-5, p. 1052; 2 Starr & Curtis,

Ann. Stats. 2739; Michigan, How. Ann. Stat. 4122-6; Missouri, Gen. Stats. 1889, secs. 7040-2; New Mexico, Act Feb. 11, 1887, p. 206; North Dakota, Rev. Codes 1895, sec. 1442; Ohio, Rev. Stats. 1890. secs. 4374-9; Virginia, Code 1887, secs. 2571-2.

vent the other party from asserting his right to redress within the statutory period. Such action on the part of the trespasser is fraudulent, and suspends the running of the statute until such time as the injured party discovers, or reasonably could have discovered, the trespass. Until that time it was not practicable for him to assert his right, and he is not within the mischief which the statute is intended to remedy. A different view was held in Ohio, but the legislature has brought the law of that State into conformity with the view above expressed.1

Where minerals have been mined and removed unintentionally or by mistake from the land or mine of another, the measure of damages in trover is the value of the minerals taken; and in trespass, this value, increased by the injury done to the land by their removal. There are two views as to what is the value of the minerals which is to be used as a measure of damages. The better view is that it is the value in situ; that is, the value at the pit's mouth, less the expense of mining and of carrying it to that place. This view is held in Massachusetts, Missouri, Nevada, Pennsylvania, South Carolina, and Tennessee, and the United States courts of the Eighth Circuit. This valuation may also be expressed as the usual royalty paid for the right of mining.

The other view is, that the value of the minerals to be used in estimating damages is their value when they first became chattels ; that is, immediately on severance from the land, without deduction for the cost of severance. It is the value at the pit's mouth, less only the expense of conveying it to that place and of preparing it for market after the first act of severance. This rule prevails, in the case of innocent trespasses, in California, Illinois (where no allowance is made for separating the mineral from the earth and refuse after it is severed from the land, or for breaking up the large masses), and Maryland. This same rule is laid down in Colorado, Nevada, and the United States Supreme Court as applicable to intentional trespassers. And the New York courts seem to adopt it as a general rule applicable whether the trespass is intentional or not. In Maryland, if the trespass be intentional, wilful, or the result of wilful negligence, the plaintiff is entitled. to recover punitive damages in addition, damages compensatory for the wanton wrong.

That the cost of extraction was more than the value of the

1 Rev. Stats. 1890, sec. 4982.