Imágenes de páginas
[merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors]

fect the validity of the contract. If it avoids the con- LORD HALSBURY. My Lords: In this case the tract, no enforcement can be bad. But this is so, not plaintiff, the owner of land upon the surface, bas sued because the excess is offensive to the le. fori, nor in- the lessees of certain seams of coal below and adjacent deed because it is against the policy of States to en- to the plaintiff's land for having disturbed the plainforce illegal foreign contracts, for that which is illegal tiff in the enjoyment of his property hy causing it to in one State may be unobjectionable in another, but subside. The defendants before and up to the year because the contract never had a legal existence and 1868 have worked, that is to say, excavated, the seams there is nothing to enforce.

of coal of which they were the lessees. Their excavaIt is of the highest importance in this age of rapid tion caused a subsidence of the ground, for which and easy communications, and of extensive commer- they acknowledged their liability and made satisfaccial transactions, that a liberal policy should be ob- tion. There were other subsidences after this, and as served in respect to the enforcement of foreign con- the case originally came before your lordships, it was tracts. In the midst of the intimate commercial re- matter of inference only whether these subsidences lations of different countries, and the various and were or were not in some way connected with, if not complicated systems of law which prevail, the enforce- forming part of the original subsidence. The parties ment of obligations would be hopeless, if each State have now, by an admission at your lordships' bar, attempted to apply the tests and penalties of its do- placed the matter beyond doubt. It has been agreed mestic regulations to foreign contracts. This is es- that the owner of the adjoining land worked out his pecially the case in the matter of interest, the rate of coal subsequently to 1868. That if he had not done so which depends on local circumstances. Social order there would have been no further subsidence,and if the may be insecure, capital may be scarce and specula- | defendants' coal had not been taken out, or if suff. tion may be active. All these things tend to increase cient support had been left, the working of the adthe rate of interest; and the refusal to recognize such joiping owner would have done no harm. Under conditions and enforce contracts based on them, these circumstances, the question is whether the satiswould put a stop to all foreign trade.

faction for the past subsidence must be taken to have JOHN B. MOORE. been equivalent to a satisfaction for all succeeding

subsidence. No one will think of disputing the propoSTATUTE OF LIMITATIONS MINES - SUBSID.

sition that for one cause of action you must recover

all damages incident to it by law once and for ever. ENCE OF SURFACE-SECOND SUB

A house that has received a shock may not at once SIDENCE.

show all the damage done to it, but it is damaged not

the less then to the extent that it is damaged, and HOUSE OF LORDS, FEB, 8, 1886.

the fact that the damage only manifests itself later on

by stages does not alter the fact that the damage is DARLEY MAIN COLLIERY Co, v. MITCHELL.* there; and so of the more complex mechanism of the When damage is caused to land by the removal of the min

human frame, the damage is done in a railway accierals under it and the consequent subsidence of the sur

dent, the whole machinery is injured, though it may face, the owner has a cause of action whenever and as

escape the eye or even the consciousness of the sufoften as such damage takes place.

ferer at the time; the later stages of suffering are but The respondent was the owner of land, and in 1867 and 1868

the manifestation of the original damage done, and the appellants worked out the coal under the land with

consequent upon the injury originally sustained. But out leaving proper support, in consequence of which the

the words “cause of action" are somewhat ambigsurface subsided, and some cottages belonging to the re

uously used in reasoning upon this subject; what the spondent were injured. The appellants made compensa

plaintiff bas a right to complain of in a court of law in tion for the injury, and did not work the minerals after

this case is the damage to his land, and by the damage 1868. In 1882 a further subsidence occurred from the

I mean the damage which had in fact occurred, and if combined effect of the previous workings of the appel

this is all that a plaintiff can complain of, I do not see lants and workings under the adjoining land. The re

why he may not recover toties quoties fresh damage is

inflicted. Since the decision of this house in Bonomi spondent brought an action to recover compensation for the injury he had sustained. Held, that a new cause of

v. Backhouse, 9 H. of L. Cas. 503; 4 L. T. Rep. (N. S.)

754, it is clear that no action would lie for the excavaaction arose in respect of the second subsidence, and that

tion. It is not therefore a cause of action; that case the respondent's right to maintain an action for the in

established that it is the damage and not the excavajury he had sustained in consequence of it was not barred by the statute of limitations.

tion which is the cause of action. I cannot understand

why every new subsidence, although proceeding from HIS was an appeal from a judgment of the Court of

the same original act or omission of the defendants, is Appeal (Brett, M. R., Bowen and Fry, L. JJ.), not a new cause of action for which damages may be reported in 52 L. T. Rep. (N. S.) 675, and 14 Q. B. Div. recovered. I cannot conuur in the view that there is a 125, reversing a judgment of Hawkins, J., upon further breach of duty in the original excavation. consideration, in an action tried before him and In Rowbotham v. Wilson, 8 E. & B. 123, Cresswell, Leeds, in which the respondent was plaintiff and the J., said the owner of the mines might have removed appellants were defendants. The facts of the case ap- every atom of the minerals, without being liable to an pear from the head-note above, and from the reports action, if the soil above had not fallen, and what is in the court below. On the question of the statute of true of the first subsidence seems to me to be neceslimitations, Hawkius, J., ordered judgment to be en- sarily true of every subsequent subsidence. The de. tered for the defendants on the authority of the judg- fendant has originally created a state of things which ment of the majority of the Queen's Bench Division, renders him responsible if damage accrues; if by the Lamb v. Walker, 3 Q. B. Div. 359; 38 L. T. Rep. (N. S.) hypothesis the cause of action is the damage resulting 643, but the Court of Appeal overruled that decision, from the defendant's act, or an omission to alter the and the defendants appealed to the House of Lords. state of things he has created, why may not a fresh Attorney-General (Sir R. Webster, Q. C.), Forbes, Q.

action be brought? A man keeps a ferocious dog C., and G. Banks, appeared for appellants.

which bites his neighbor; can it be contended that

when the bitten man brings his action he must assess Rigby, Q. C., and C. E. Ellis, for respondent.

damages for all possibility of any future bites? A man

stores water artificially, as in Rylands v. Fletcher, 19 * 54 L. T. Rep. (N. S.) 882.

[merged small][merged small][ocr errors][ocr errors]


[ocr errors][ocr errors]
[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

L. T. Rep. (N. S.) 220; L. R., 3 H. of L. 330; the water injured the plaintiff's premises, and that the defend-
escapes and sweeps away the plaintiff's house; he re- ants had been called upon to do and had paid for re-
builds it, and the artificial reservoir continues to leak pairs rendered necessary, it is clear that the original
and sweeps it away again. Cannot the plaintiff re- working was such as to give rise to a cause of action
cover for the second house, or must he have assessed as early as 1871, and that tbe plaintiff had then known
in his first damages the possibility of future invasionit. Lamb v. Walker, 38 L. T. Rep. (N. S.) 643; 3 Q. B.
of water flowing from the same reservoir? With re- Div. 389, was then cited. With a view to enable the
spect to the authorities, the case of Nicklin and Wil- plaintiff's counsel to fully consider that authority, it
liams, 10 Ex. 259, was urged by the attorney-general was arranged that the jury should be discharged, and
as an authority upon the question now before your that the case should be reversed for further consider-
lord ships, by reason of some words attributed to ation, it being expressly admitted by the plaintiff that
Lord Westbury in Bonomi v. Backhouse. If Lord damage was done by subsidence in 1868. On further
Westbury really did use the words attributed to him,it consideration the plaintiff's counsel is stated by Haw-
is, I think, open to doubt in what sense they are to be kins, J., to have admitted that judgment must be en-
understood. Parke, B., in that caso, delivered the tered for the defendant, unless Lamb v. Walker, which
judgment against the plaintiff's recovering any subse- | he intended to question in a Court of Appeal, was
quently accruing damage, because he said, the cause overruled. I think it convenieut here to see what was
of action was the original injury to the right by with the decision in Lamb v. ker, so as to see whether,
drawing support. That principle is admittedly wrong, while it stands unreversed, it was decisive of the case
and was expressly held to be wrong in Bonomi v. before Hawkins, J. Mauisty, J., quotes so much of
Backhouse, since if that had been law, there could the plaintiff's statement of claim as was material in
have been no answer to the plea of the statute of lim- that ease. There was a first claim, on which the re-
itations in that case. It is difficult to follow Brett, feree gave a farthing, which I do not notice. I think
M. R., when he says it was not necessary to overrule the fifth and sixth paragraphs are in effect the same as
Nicklin v. Williams by that decision. It seems to me the amended statement of claim in the action pow at
to have been the whole point decided in Nicklin v. bar. But the only plea in Lamb v. Walker was pay-
Williams, and how that case so decided can be an au- ment into court of 1501., and the issue joined was
thority for any thing I am at a loss to understand. I whether that was enough. That was referred, and it
think the decision of this case musí depend as mat- was ou the award that the questiou was raised. The
ter logic upon the decision of your lordships' house two material findings on the award are stated: “2. I
in Bonomi v. Backhouse, and I do not know that it is estimate the damage actually sustained by the plain-
a very legitimate inquiry, when a principle has been tiff at the date of the commencement of the action **
laid down by a tribunal from which there is no ap- * at 1001. 3. I estimate the future damage which will
peal, and which is bound by its own decisions, whether be sustained by the plaintiff * * at 1501." Не
that principle is upon the whole advantageous or con- therefore directed judgment to be entered for 4001..
venient; but if such considerations were permissible, deducting the 150l. paid into court from those two
I think Cockburn, C. J., in his judgment in Lamb v. sums, amounting together to 5501. The question was
Walker, 38 L. T. Rep. (N. S.) 643; 3 Q. B. Div. 389, es- raised on a rule to reduce the damages, and was,
tablishes the balance of convenience to be on the side whether the plaintiff was in point of law entitled to
of the law as established by Bonomi v. Backhouse. I recover the sum of 1501., which the referee finds will
cannot logically distinguish between a first and second be sustained by the plaintiff by reason of the defend.
or a third or more subsidences, and after Bonomi v. ants' acts." The decision in Lamb v. Walker was that
Backhouse it is impossibie to say that it was wrong in he was so entitled. And I think it was rightly thought
any sense for the defendant to remove the coal; Cress- that if damages subsequent to a writ issued iu 1871
well, J., has said, I think rightly, he might remove could be recovered in an action on that writ, they
every atom of the mineral. The wrong consists, and were included in the cause of action then existing,
as it appears to me, wholly consists, in causing another and consequently that decision, which was binding on
man damage, and I think he may recover for that Hawkins, J., was at that stage of the proceedings con-
damage as and when it occurs. For these reasons Iclusive against the plaintiff.
think that the judgment appealed from should be af-

In Lamb v. Walker, Cockburn, C. J., differed from firmed, with costs.

the majority of the court. He said: “Taking the Lord BLACKBURN. My Lords: This is an appeal view I do of the leading case of Backhouse v. Bonomi, against an order of the Court of Appeal, by which it I am unable to concur in holding, that in additiou to was ordered that the judgment of Hawkins, J., de- the amount to which he may be entitled for actual livered ou further consideratiou,on the 18th of Decem-damage sustained through the excavation of the adjaber, 1883, should be reversed, and judgment entered ceut soil by the defendant, the plaintiff is entitled to for the plaintiff for damages to be assessed by an arbi- recover in respect of prospective damage, that is to trator to be agreed upou, with costs. Before this house say, anticipated damage expected to occur, but which can say whether this order is right or not, it is neces- has not actually occurred, and which may never sary to know what was the case on which Hawkins, arise." He enters into elaborate reasoning to support J., directed judgment, which this order reverses, to this opinion, which I shall examine presently. I thiuk be entered for the defendant. The writ was issued if that opinion had prevailed in Lamb v. Walker, and a on the 27 of December, 1882. There was an alternative judgment had been given accordingly, that decision defense that the causes of action did not, nor did any would have been, not only not an authority against of them.first accrue to the plaintiff at any time within the plaintiff in this case, but an authority in his favor six years before the commencement of the action; and as far as the defense of the statute of limitations is therefore it lay on the plaintiff to give evidence of concerned. There must have been some understandsome cause of action subsequent to the 27th of De ing between the counsel for the plaintiff and for the cember, 1876. I think it sufficiently appears in Haw.defeudants in this case as to what was to be done in kins, J.'s judgment that the defendants bad worked case the final decision on this very important question out the seams of coal of which they were lessees as was in conformity with the opinion of Cockburn, C. long ago as 1868, and that they had done nothing from J. And I think, thougb I wish it had been expressly that time. And as the defendants seem to have stated, it must now be taken that the defendants' proved and relied on the fact that very considerable counsel agreed that he would not, on the evidence then subsidences had occurred between 1868 and 1871 which before the court, ask for a verdict on any of the other

[ocr errors][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][ocr errors][ocr errors][ocr errors][merged small]
[ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]

defenses, but would in that case consent to have the cide nothing on a question which does not here arise, damages settled by arbitration. Cockburn, C. J., viz., whether if the same person has two separate could not, in Lamb v. Walker, have meant to go so far tenements, say A. on the north of the beam worked by as to say that if a house had been shaken, and was ev. the defendaut and B. on the south of it, and damage idently going to fall, but had not yet completely fallen bas actually occurred to A., and he sues for the damwhen the writ issued, the plaintiff could only recover age done to it, he is bound to join in the action any for what had already occurred, and would have to claim which he has or hereafter may have as to B. bring a fresh action when a further chimney fell. He Whilst the recent decision of Brunsden v. Humphrey has not quite sufficiently guarded himself from saying in the Court of Appeal, 51 L. T. Rep. (N. 8.) 559; 14 Q. 80. But as the facts here were different, it was some- B. Div. 141, stands unreversed, and I do not mean to what late in the day but with the assent of this house, cast any doubt on it, it would seem that he is not. It agreed to add this further admission: “That if the is desirable to see what the case of Bonomi v. Backowner of the adjoining land (one Cooper) had not house (E. B. & E. 622) really was. The writ was issued worked bis coal, there would have been no further on the 20th of May, 1856. The declaration alleged that subsidence; but the appellants (defendants) admit that the plaintiffs, as reversioners of certain buildings in if the coal under the respondent's (plaintiffs) land had the occupation of Parkin, were entitled to have the not been taken out, or if the appellauts (defendants) said messuages and buildings supported by the mines had left sufficient support under respondents' (plain- and soil “contiguous and near to and under the said tiffs) land, then the working of the adjoining owner messuages and buildings,'' and then in the usual way would have done no harm.” I do not understand this alleged working by the defendant, disturbing the supto be an admission that the subsidence was occasioned port, by which the walls of the said messuages were by the removal by the defendants of other coal than cracked and injured, and the ground on which the that the removal of which occasioned the subsidence said messuages and buildings stood subsided. The in 1871. Such an admission would havő raised a dif- pleas were: 1, Not guilty; 2, denial of Parkin's occuferent question, and one the solution of which might pancy as tenant as alleged; 3, denial of the reversion have required a further investigation as to the facts. being in the plaintiffs as alleged ; 4, that the plaintiffs I will now proceed to consider the case exactly as if it were not entitled to have the said messuages and buildwas an appeal from Lamb v. Walker. I must first ob- | ings or either of them supported, to-wit, by the mines, serve that Manisty, J., in that case, says: “It is a well- earth, and soil underground contiguous; 5, that the settled rule of law that damages resulting from one said alleged causes of action did not accrue within six and the same cause of action must be assessed and re- years before this suit. The verdict was eutered for covered once for all.” And it is not disputed by the plaintiffs, subject to a special case. One very imCookburn, C. J., that the rule is established that portant question raised in and decided by that case "damages resulting from one and the same cause of was as to the rights of buildings to support, as disaction must be assessed and recovered once and for tinguished from the rights of the natural soil to the all.” He joins issue with Manisty, J., on the applica- support; witb that we are not now concerned. The tion of this rule to cases arising from subsidence oc- arbitrator in detail stated very clearly, and I have no casioned by mining so as to remove support. And I doubt very accurately, the way in which the cleety think that this rule is established as the general rule coal in the Auckland coal-field was worked. I doubt of law, I do not think it is one of those rules of law if this account would be found to be applicable in which depend upon natural justice. I think it is an most coal-fields. I think I may say that it would not artifioial rule of positive law introduced on the balance in some. I do not know what is the nature of the of convenience and inconvenience. I think that if it strata in the Yorkshire coal-field where the present were res integra a great deal might be said against the coal lies. But it appeared quite clear on his stateexpediency of the rule. I know no place where the ment of the case, that though it was apparent in 1850, objections to the expediency of the rule are more more than six years before the action, that unless clearly and forcibly stated than by Cockburn, C. J., in steps were taken to stop the progress of the thrust that case. But I think it was not disputed in the ar- theu in operation the plaiutiffs' houses would be ingument that at all events, when the act complained of jured by the thrust, yet no actual injury was sustained is one which would entitle the plaintiff to maintain an till 1854, less than six years before the action; he also action, and recover, as a matter of law, at least nomi- found that the thrust would coutinue and would pronal damages, without any proof of damage in fact, the duce damage in future. There was also a finding that rule is firmly established, and I think all three judges it was possible to stop the thrust, “but the expense of in the court below agree that the question is what was so doing would have been very great, and would on the cause of action in this case. They adopt the rea- the whole have amounted to a much larger sum than soning of Cockburn, O. J., in Lanıb y. Walker, that it the value of the property injured." He then prologically follows, from Bonomi v. Backhouse, that ceeded to find in detail the facts on which it was to there are independent and distinct causes of action, depend how the issues should be entered, and then on each fresh distinct cause of damage, though arising proceeded as follows: “If the verdict is to be entered from the same act of disturbing the soil. Fry, L. J., for the plaintiffs upon the issues joined on the first, puts this very clearly. He does not think that it is fourth, and fifth pleas, another question for the court concluded by authority, and says: “I think we are is (4), whether the defendant is responsible for all the bound to determine this question on principle. Now, damage which has been sustained by the plaintiffs by with reference to principle, it appears to me to be reason of the injuries to their said messuages and plain that all damages which result from one and the buildings above described, or for any or what part of same cause of action must be recovered at one and the that damage, and whether he is responsible in any and same time, and therefore we are driven to the inquiry what respect for the probable future damage which may what is the cause of action in a case of this descrip be occasioned in manner above described, or for the dam. tion.” In this I completely agree, but I have not been age occasioned by the diminution in value of the said able to agree with the reasoning by which it is sought messuages and buildings by reason of their insecure to be made out that it logically follows, from the de- state and condition, or the injuries which will probcision in Backhouse v. Bonomi in this house, that ably be hereafter occasioned by the further progress there are fresh causes of action at each fresh subsid- of the thrust as above mentioned." Had this question, ence, arising from the old disturbance of the strata, and more especially the part of it I have marked in occasioning fresh damage to the same property. I de- | italics, been answered, it would have decided the ques

[merged small][merged small][merged small][merged small][ocr errors][ocr errors][merged small][ocr errors]
[ocr errors][ocr errors][ocr errors][merged small]


[merged small][merged small][merged small][merged small][ocr errors]

tion afterward raised in Lamb v. Walker. But as the breach of duty, followed by damage, there is a causo majority of the Queen's Bench decided that the issue of action; and that until there is damage there is no on the fifth plea should be entered for the defendant, more cause of action for the breach of duty than there the fourth question required no answer from those would be in a person who saw the breach of duty in three judges, and received none. Wightman, J., does the reckless rider of a horse, but was not damaged, give an answer, which I think, so far as it goes, is in though in peril. Littledale, J., said in Hodsoll v. Stalfavor of Cockburn, C. J.'s, view in Lamb v. Walker. lebras, 11 A. & E. 301, speaking of an action by a masThe defendant does not appear to have thought the ter for beating his servant per quod servitium amisit: fourth question of importance, for nothing whatever “It is argued that a fresh action might be brought was said in the argument in the Exchequer Chamber from time to time, but that is not so, the action being about it; and though the expression in the judgment founded not upon the damage only, but upon the unindicates approval of Nicklin v. Williams, 10 Ex. 259, lawful act and the damage. Without the special damso far as regarded the principle “that no second or age, this action would not be maintainable at the fresh action cau, under such circumstances, be brought plaintiff's suit. A fresh action could not be brought for subsequently accruing damage, all the damage unless there were both a new unlawful act, and fresh cobsequent upon the unlawful act is in oontemplation damage.” This, I think, indicates the real principle. of law satisfied by the one judgment or accord," and No authority was cited on the argument against this, seems in favor of the view taken by the najority in except a dictum of North, C. J., in the report of Lord Lamb v. Walker, yet I do not think it can be properly Townshend v. Hughes, 2 Mod. 151, where he is reported said that the Court of Exchequer Chamber in their to have said: “This is a civil action, brought by the judgment put their minds to that question, which was plaintiff for words spoken of him, which if they are not much, if at all, argued before them. Before the in their own nature actionable, the jury ought to con

was taken into this house the damages were sider the damage which the party may sustain, but it agreed on at 5001., how or op what principle we do not a particular averment of special damage makes them kuow. And that being so the house had no occasion actionable, then the jury are only to cousider such to decide any thing on that fourth question. There damages as are already sustained, and not such as may seems to have been no allusion to it in the argument, happen in future, because for such the plaintiff may and I think no one of the lords makes ang reference have a new action. North, C. J., was a great lawyer, to it. I think that Bonomi v. Backhouse does decide and though at the moment engaged in maintainiug that there is no cause of action until there is actual what seems a very bad cause, no dictum of his is to be damage sustained, and does decide that the Court of slighted. But this, it he did say it, was utterly irreleExchequer erred when in Nicklin v. Williams, 10 Ex. vant, for his opinion was that the words spoken were 259, they said that there was an injury to the right as actionable, without any special damage, such in the soon as the support was rendered insufficient, though case before him being neither averred nor proved. I no damage had occurred. But I do not think that it cannot therefore attach much weight to this dictum, at all follows from this that the act of removing the and it has never, I think, been acted upon. I come minerals to such an extent as to make the support in- therefore to the conclusion that the opinion of the masufficient is an innocent act rendered wrongful by the jority in Lamb v. Walker was the better opinion. I subsequent damage. That would be a great anomaly, should say that I take a very different view of Whitefor I think there is no other instance in our law where house v. Fellows, 4 L. T. Rep. (N. S.) 177 ; 10 C. B. (N. au action lies in consequence of damago against a per- 8.), 765, from that taken by Brett, M. R. I think that son doing an innocent act. There are many where no was an action for maintaining a nuisance, which from action lies against the doer of an improper act, unless time to time caused fresh dainage. What Williams, J., and until damage accrues. One is alluded to by Lord there says is: "The true answer to this objection, as Cranworth. The cause of action against the speaker it seems to me, is that no fresh cause of action arises of words not actionable per se consists in the speaking from each fresh damage, but that where there is not of the words and the damage. It was therefore held only a fresh damage, but a continuance of the cause in Littleboy v. Wright, 1 Lev. 69; 1 Sid. 95, on error of damage, such continuance of the wrongful act from the Palace Court, that an inferior court had no which caused the damage constitutes a fresh cause of jurisdiction over an action for calling the plaintiff a action." This was how the Court of Error in Ireland whore, whereby the plaintiff lost ber marriage, unless understood that case in Devery v. Grand Canal Co., 9 both the speaking of the words and the loss of the Ir. Rep. C. L. 194. So understanding it and approvmarriage were averred and shown to have occurred ing of it, Palles, C. B., in that case gave judgment for within the jurisdiction. But the cause of action was the plaintiff. How that case is in any way in conflict as much the speaking of the words as the damage. It in principle with Nicklin v. Williams I am unable to is quite clear, that if the words were spoken under perceive. Bowen, L. J., says, “that applying the reasuch circumstances as to be privileged, no amount of soning in Whitehouse v. Fellowes, it seems to me damage could give rise to an action. So where a man that there has really been not merely an original beats another's servant, no action arises to the master excavation or act done, but & continual withuntil there is damage by the loss of the service, but no drawal of support.” If I could take that view amount of damage would give the master an action if

of the facts, I should agree in the conclusion. the beating was justifiable. And if a man in breach of But I caynot take that view of the facts. One consethe duty to take reasonable care in the management quence of doing so would be that where the owner in of a borse in a public street gallops along it, no action fee of a seam of coal worked it out, and died leaving lies except at the iustance of a person who has suffered

it in this state, the heir of the land in which the damage. But no amount of damage will give a cause worked-out seam lay would be liable to an action for of action against the owner of the horse unless a continuing a nuisance. Surely the facts cannot be breach of duty is showi), And I think that there is a such as would produce that effect. And unless they duty in the owner of land on which his neighbor's are I do not think that they can make the defendant land rests to respect it, and take care that he does not

responsible on this ground. I therefore think that the injure that support. This is subject to many qualifi- order appealed against should be reversed, aud the cations, some of which were considered in Birming: 1 judgment of the 18th of December, 1883, restored. ham v. Allen, 6 Ch. Div. 284; 37 L. T. Rep. (N. 8.) 207. LORD BRAMWELL. My Lords: Laying down genAll I think that is reall decided in Bonomi v. Back- eral propositions is attended with the same danger as noulse, at least in this house, is that where there is a giving definitions. Some necessary qualificatiou or

[merged small][merged small][ocr errors][ocr errors]
[merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][ocr errors][merged small]

exception is generally omitted. Moreover such propo- torney-general denied tbis, and was driven to do so.
sitions are often and justly called obiter. With these But suppose A. owned the adjoining property on one
fears before my eyes I shall nevertheless venture on side, and B. that which was at right angles to it, there
some abstract propositions. It is a rule that when a must then be two causes of action. Now apply this
thing directly wrongful in itself is done to a man, in reasoning to the present case. There are by the ad-
itself a cause of action, he must, if he sues in respect mission of the parties two separate and distinct dam-
of it, do so once and for all. As if he is beaten or ages caused to the plaintiff by the acts, including in
wounded, if he sues he must sue for all his damage, that word omissions, of the defendants. One a re-
past, present, and future, certain and contingent. He moval of coal and non-providing of supports, which
cannot maintain an action for a broken arm, and sub- caused a subsidence in 1868. A cause of action ac-
sequently for a broken rib, though he did not know crued then. Another cause of action is the removal of
of it when he commenced his first action. But if he coal, including perhaps the coal which caused the first
sustained two injuries from a blow, one to his person, subsidence, but doubtless also a removal of coal ex-
another to his property, as for instance, damage to a tending to a greater distance, and not immediately
watch, there is no doubt that he could maintain two under the plaintiff's land, and the non-providing
actions in respect of the one blow. I may apply the against the consequences, which when the adjoining
test I mentioned in the argument. If he became owner to the defendants removed his coal, as he law-
bankrupt, the right in respect of the watch would vest fully might (though I think that immaterial), caused
in his trustee; that for damage to his person would a creep in the defendants' land, which in time caused
remain in him. I have put the case of a trespass. The the further subsidence. I think this gives & second
same would be true of an action for consequentiaj cause of action. I think therefore that the judgment
damages. A man slandered or libelled by words ac. was right. It seems to me not to matter that the sub-
tionable in themselves must sue, if at all, for all his sidence was of the same spot, nor that the immediate
damage in one action. Probably if he sustained spec- cause of the second subsidence was the non-existence
ial damage, as that he lost a contract through being of coal underneath that spot. Two damages have
charged with theft, he might maintain one action for been occasioned to the plaintiff, one directly and im-
the actionable slander, another for the personal loss-mediately by the removal of the coal under his sur-
certainly if the case of Littleboy v. Wright, 1 Sid. 95; 1 face; the other by that and removal of other coal, and
Lev. 69, is right. But it is not necessary to decide consequent creeping and further subsidence. The at-
this. I now come to the case of where the wrong is torney-general, as I have said, denied that there could
not actionable in itself, is only an injuria, but causes & be two causes of action if two different parts of the
damnum. Such a thing may be. A bargain between plaintiff's land subsided at two different times. But
A. and B. that B. should call C. a swindler would be surely there must be. Suppose the two pieces be-
unlawful, thougb neither actionable nor indictable, longed to different owners, as I have suggested. Of
except perbaps as a conspiracy. But it would not be course one can see the danger and inconvenience that
enforceable, though the bargain was made out of the will follow. This damage accrues many years after
jurisdiction, and so not indictable. In such a case it the defendants' act which has caused it. If my rea-
would seem that as the action was only maintainablesoning is right, many years hence there might be a
in respect of the damage, or not maintainable till the further action from some further subsidence. But the
damage, an action should lie every time a damage ac- inconvenience is as great the other way. For if the
crued from the wrongful act. For example, A. says defendants are right, it follows that on the least sub-
to B. that C. is a swindler, B. refuses to enter into a sidence happening a cause of action accrues once and
contract with C., C. has a cause of action against A.; for all, the statute of limitations begins to run, and
D., who was present and heard it, also refuses to make the person injured must bring his action, and claim
such a contract: surely another action would lie. And and recover for all damage actual, possible, or con-
80 one would think if B. subsequently refuses another tingent for all time. As to the authorities, Bonomi v.
contract. Of course one can see that frauds might be Backhouse seems clearly in the plaintiff's favor. In-
practiced. So they may in any state of law. But I deed I have thought of limiting my judgment to the
cannot see why the second action would not be main- | following remark on it. It decided that the excava-
tainable is the second loss was traced to the speaking. tion of the coal was not wrongful, and that the cause
And perhaps one might apply the same test. Would of action accrued when the damage arose. The dam-
not the first right of action pass to the trustees of C. if age now complained of arose at the last subsidence.
he became bankrupt? If the second loss was after the That subsidence was no part of or continuance of the
bankrupt's discharge, it would rot. There is still former subsidence, therefore no cause of action in re-
another class of cases to be considered, viz., those spect of it arose till it happened.
where the act causing damage is not in itself wrong- LORD FITZGERALD. My Lords: The real, though
ful. No easier case can be taken than the above- not the formal, question for your lordships' determi-
ground case of an excavation, whereby an adjoiuing vation is whether Lamb v. Walker, ubi supra, was cor-
owner's soil is let down. It cannot be said that the rectly decided. Lord Blackburn rightly deals with
act of excavation is unlawful. A contract to do it tbis appeal in the same light as if it was an appeal
could be enforced. No injunction against it could be from Lamb v. Walker. I do not propose to follow him
obtained unless injury was imminent and certain. in his instructive examination of that case and Back-
What would be the rights of the person damaged in house v. Bonomi, ubi supra, and his criticisms on those
such a case? I think the former reasoning would ap- cases, but I think that we may deduce from the au-
ply. If there was an excavation 100 yards long, and tborities some propositions as now settled in law, and
fifty feet of the neighboring soil fell in, the right of applicable to the circumstances of the appeal now be-
action would be in respect of those fifty feet, and not fore your lordships' house, and to similar cases. I
only in respect of what had fallen in, but what would proceed to state those propositions, though in doing
in future fall in along the fifty feet. But if afterward 80 I am couscious of the danger pointed out by Lord
the other fifty feet fell in, there would be a fresh cause Bramwell. (1) That the owner of the surface has a
of action. Surely this must be so. If ten feet at one natural and legal right to the undisturbed enjoyment
end fell in, and afterward ten feet at the other, it of that surface in the absence of any binding agree-
would be impossible to say that there would not be ment to the contray. (2) That the owner of the sub-
two causes of action. If the excavation was on two jacent minerals may excavate and remove them to the
sides of a square, the same consequences. The at-

utmost extent, but should exercise that right so as

[ocr errors][ocr errors][ocr errors]
« AnteriorContinuar »