10 N.Y. 538 | NY | 1874
The ultimate principles upon which the decision of this case should rest, are not undetermined nor obscure. The relative rights and duties of owners of superjacent lands, and of subjacent minerals, have been much discussed and passed upon. Then, too, the position of adjacent owners of land is an analogous one, and the rules which have
Of important results in this case, are the rules, that this court is bound to take the facts, as they are stated in the case to have been found by the judge or referee, and to compare the judgment with those statements of fact (Farnham v. Hotchkiss, 2 Keyes, 9); that, in the absence of express findings of fact to sustain the judgment, it may look into the testimony, and, if there be evidence which will support the conclusions of law, it may infer that there was a finding of fact by the judge' or referee, though not expressed (Newman v. Frost, 52 N. Y., 422); but that, if there is any evidence upon which the judgment may rest, this court may not look into the testimony to determine whether there is preponderating evidence to the contrary; nor, where there is any contrariety of testimony, to determine whether it was correct to refuse to find a fact as requested. (Chamberlin v. Prior, 2 Keyes, 539.)
The whole estate was at first in Parks. He severed it by his conveyance to Downs. He transferred to Downs and his grantees only the surface land. It is said that such a transfer is of the surface, and of all profit which can be got from cultivating it, or building upon it, or using it; that thus much is intended to be conveyed. (Hext v. Gill, Law Eep. [7 Chy. App.], 700.) But as in the same conveyance, there is a reserve to the grantor of an important part of the general estate, and of important incidents thereto, it is manifest that if the reserve is effectual and still operative, there is imposed upon the estate conveyed a serious servitude; though it, in its turn, becomes to a certain extent dominant over the estate reserved. The remark in Hext v. Gill (supra) has a limit then, and that which Parks can be reasonably considered to have granted, is the surface land, and such measure of support subjacent, as was necessary for the surface land, in its condition at the
There is a clause in the deed from Parks to Downs, " Reserving always all mineral ores, now known or that may be hereafter known, with the privilege of going to and from all beds of ore that may be hereafter worked, on the most convenient route to and from.” The learned justice has found that this is a reservation of all ore on the premises. It is also of a privilege of way upon the premises. There need be no difficulty, whether what is claimed to have been retained in Parks by this clause, is technically the subject of an exception, or of a reservation, or in part of one and in part of the other. (Craig v. Wells, 11 N. Y., 315.) There is no doubt of the intention of the parties to the conveyance. It was to keep in Parks and his future assigns, unconveyed to Downs and his assigns, all that which the meaning of the clause, had it been framed with strictest technicality, would have saved from the operation of the granting part of the deed. (Provost v. Calder, 2 Wend., 517; Bridger v. Pierson, 45 N. Y., 601 ; Whitaker v. Brown, 46 Penn. St., 197.)
A reserve of minerals and mining rights, is construed as is an actual grant thereof. It differs not, whether the right to mine is by an exception from a deed of the surface, or by a grant of the mine by the owner of the whole estate, therein reserving to himself the surface. (Shep. Touch., 100 ; Dand v. Kingscote, 6 M. & W., 174; Williams v. Bagnall, 15 Week. R., 272; see Wickham v. Hawker, 7 M. & W., 78 ; and comment thereon in Proud v. Bates, 34 L. J. [Chanc.], 406; S. C., 5 Am. Law Reg. [N. S.], 171-174.) A reservation of minerals and mining rights from a grant of the estate, followed by a grant to another of all that which was first
The deed from Parks to Payntar, and that from Payntar to the defendant vest in it, then, all the estate which Parks did not convey to Downs, and all the rights incident thereto; and this estate and these rights are as great, as if he had made his deed to Payntar in the terms of the reservation in that to Downs, while he (Parks) owned the whole estate unsevered. It is an old rule, that, when anything is granted, all the means of attaining it, and all the fruits and effects of it are also granted. (Shep. Touch., 89, 100 ; Bacon Ab., Grants [I], 4.) This rule we have in more than one instance, of late, been called upon to apply in behalf of the grantee. In Corn-stock v. Johnson (46 N. Y., 615) it is stated so largely as this: “ Everything necessary for the full and free enjoyment of the mill passed as an incident appurtenant to the land conveyed.” (See, also, Voorhees v. Burchard, decided November, 1873.
The plaintiff claims that this general power, if thus acquired as an incident to a grant, is limited by an especial power or privilege, particularly mentioned in the grant or reservation. And as the reservation here does, in particular terms, stipulate for a privilege of going to and fro, he insists that this privilege is all that the defendant has. Such is not the effect of such a particular. (Earl Cardigan v. Armitage, 2 B. & C., 197; Green v. Putnam, 8 Cush., 21.) The right to work a mine, reserved by the grantor of the surface, carries with it the right to penetrate to the minerals through the surface of the land conveyed, for the purpose of digging them out and removing them. (Gould v. G. W. D. C. Co., 29 J. P., 820; S. C., 12 L. T., 842; 13 id., 109; Rogers v. Taylor, 1 H. & N., 706; Hext v. Gill, supra.) This being so, there must be included in the right to break through the surface, the right to do so in such manner as is most advantageous to the owner of the right to mine, so that the surface is not wholly destroyed. By this is meant, that he has the right to sink a shaft vertically, or to drive a way horizontally, or to do both in different places, so that he may reach the minerals and take them out from below the superjacent earth, following the veins of ore with excavations below the surface; always, however under the restriction, that what he does it is necessary for him to do for the reasonable use and enjoyment of his property in the minerals. We are aware that in Harr
The necessity which is to govern is not fixed and unvarying. The right may be exercised in a manner suitable to the business to be carried on. Such is the principle of the decision in the analogous case of Gayford v. Moffatt (Law Rep. [4 Ch. App.], 133), where it is held that a lessee of an inner close, becomes entitled to a right of way through an outer close, and that the way afforded to him, must be suitable to the business to be carried on by him, on the premises demised. And what is, perhaps but an expansion of the last proposition, the exercise of the right is not to be confined to the modes in vogue when it was first acquired. The owner of the mine may keep pace with the progress of invention and ingenuity, so far as is necessary to a profitable working of his property in competition with rivals. Hence, he may adopt new and improved methods, which are usually availed of in the same business, when the use of them is necessary
It is to be borne in mind all the while, that the rights which follow ownership as incident thereto, are no more nor greater than those which are necessary for the beneficial enjoyment of the property. It may be convenient to have other rights, less difficult or less expensive with them, to carry on the operations, but this is not the test. The learned counsel for the defendant insists, that the measure of the use which it may make of the plaintiff’s land, is not the most rigid necessity, but a reasonable convenience. It is said by Lord Mansfield, in Morris v. Edgington (3 Taunton, * 31) : “ It would not be a great stretch to call that a necessary way, without which the most convenient cmd reasonable mode of enjoying the premises could not be bad.” We do not think that this is sustained to that extent by later decisions; and see comments upon that case in Barlow v. Rhodes (1 Cromp. & Meeson, 439). In Lawton v. Rivers (2 McCord, 445) it is remarked: “ An inconvenience may be so great as to amount to that kind of necessity which the law requires.” In Pettingill v. Porter (8 Allen, 1) it is held; “ that there is a way by necessity, where another cannot be got or made without unreasonable labor and expense; and that in determining the question, the
The defendant may not claim, as incident to the grant to it, that which is convenient. -It may have only that which is necessary, but may have that in a convenient way. One may have a way by necessity over the land of another; and having it thus, he may have it at a place and route which is convenient for him. But he never can have it because it is convenient for him, unless it is first necessary. The right arises from the necessity of the case, and not otherwise. It will be seen, when we come to consider the findings of fact and refusals, that this is of much importance. It is very rarely, then, that a case arises where, upon this test, the mine owner can justify the use of the surface for the lengthened keeping of his ore. Still more rarely, for the long-continued deposit of the rubbish from the mine, or for the erection of buildings for the storage of materials, the housing of animals or the use of artisans. So says Bayly, J., in 2 Barnewall & Cresswell (supra) : “ The incidental power would warrant nothing beyond what was strictly necessary for the convenient working of the coals. It would allow no use of the surface, no deposit upon it to a greater extent or for a longer duration than should be necessary, no attendance upon the land of unnecessary persons. It would be questionable at least whether it would authorize a deposit upon the land for the purposes of sale, and whether it would justify the introduction of purchasers to view the coals.” (See Kaler v. Beaman, 49 Maine, 207.) Turner v. Reynolds (23 Penn. St., 199), cited by the
We have considered the case so far, upon the incidental powers arising from the reservation of the right of property in the minerals. The privilege further reserved in the deed to Downs, and subsequently granted to defendant, of going to and from all beds of ore that might be thereafter worked on the most convenient route to and from, we have shown does not in any wise limit these incidental powers. On the contrary, it is plain that it aids them. It is not a right of way only over the surface; it is to all beds of ore thereafter worked. Of necessity, to reach beds below the surface, the way must go through the surface; not merely on a necessary or a convenient route, but,, as the terms of the privilege are, on the
The plaintiff insists, however, that whatever may have been the rights which were retained by Parks from his conveyance to Downs, they were intercepted, and extinguished or transferred, and did not reach the defendant. He sets up an adverse possession. He bases it upon the affirmative acts of Downs and his grantees, and upon the neglects and omissions of Parks and his grantees of the minerals. This claim of an adverse possession cannot rest merely upon a non-user by the grantors of the defendant. The rights now claimed by them were the subject of an express grant. In such case, though there be a non-user, if there has been no act of the owners of the surface lands which prevented the exercise of the rights of mining, they still exist. (Smiles v. Hastings, 24 Barb., 44; Armstrong v. Caldwell, 53 Penn. St., 284; and see Smith v. Lloyd, 9 Exch., 562.) Hor can it rest upon any act of the owners of the surface which appears in the case. To work such effect, the act must be hostile and adverse to the rights of the owner of the minerals. That cannot be predicated of the acts displayed in the findings or in the proof. Hot an instance is given of any assumption of control over the ore by digging it, or by preventing, interfering with or forbidding an attempt to dig it. The only acts shown, are those of Downs and others, in filling up, at times, and in places, the old cut to the vein, in changing, in places, the course of the old cart-way, and putting fences across with bars and openings therein. These were not accompanied with any claim of sole and exclusive right to the entire estate, nor to the way over it. They were not done, in avowed hostility and resistance of a claim of right by the grantors of defendant. They were not acts which were, of themselves, of necessity and natural result, hostile to other rights and exclusive of them. All that can be said of them is, that the owners of the surface lands had the use and enjoyment of them, and of the ways over them,
There is one fact in this case not considered there, and which is urged by the plaintiff. The deeds from Downs and his grantees, down to that to the plaintiff, do not contain the clause of reservation which is in the deed from Parks to Downs. Such omission does not affect the conclusion we arrive at, as is held in Seaman v. Vawdrey (16 Vesey, 390).
The plaintiff acquired, as a right of property, that there should be left of the minerals, in their place under the land, sufficient to support the surface in its natural state. This was the extent of his right to subjacent support, there being no buildings upon the land when Parks conveyed to Downs, nor the erection of any, one of the purposes in their contemplation. (Cal. R. W. Co. v. Sprot, supra.) The defendant lays stress upon the small consideration given for the land. The right to support is without regard to the comparative value of the strata. (Humphries v. Brogden, 12 Q. B., 739.) This right to sufficient subjacent support is likened, sometimes, to that to have lateral support to land. In that case, all which can be claimed is, that the adjacent owner shall not so dig upon his land as that that of his neighbor shall fall into his pit. If the weight of buildings, of late erected by his neighbor on his land, causes it to slide, when of its own weight it would not, there is no claim for redress. (Lasala v. Holbrook, 4 Paige, 169.) Is it not the same rule, that whatever an adjacent owner can do upon or in his own land, confined within that, and neces
If or do these rights; (for a time and to a degree to impair the surface, and so that support be left sufficient for it in its natural state, to leave it insufficient to support buildings not ancient) ; require, or depend upon, a covenant to make compensation, as is urged by the plaintiff. It is true that many reservations of such rights are accompanied with a covenant to compensate. The covenant does not create or add to the reservation. The privileges are created, fixed and defined, by the term's of the reservation alone. If there be a reservation without a covenant, the rights it creates^ or retains are just as valid and maintainable.
If or does this case fall, in its main aspects at least, within the rule recognized and applied in Hay v. Cohoes Co. (2 N. Y., 159). There the adjacent owner, though following a lawful purpose upon his own land, in excavating a canal thereon, cast rocks from it upon his neighbor’s land. He immediately and physically invaded his neighbor’s exclusive possession. He had the right to dig the canal. His neighbor had the right of undisturbed possession of his property. It was held, on grounds of public policy, better, if these rights conflicted, that he should give up the right of a particular use, than that his neighbor should lose the beneficial use of his altogether. Here, however, the case, if not reversed, is nearly so. The sole use which the defendant can make of its property is to excavate and remove it. If it is doing only what is necessary to that end, shall it give up altogether the sole beneficial use of its property, that the plaintiff may use his undisturbedly in one way, the most profitable, doubtless, and the most desirable, but still one way of several ?
And so of the argument brought by the plaintiff, from the analogy of those decisions, which hold that one may not so use his property as to make a nuisance to his neighbor. There can be no rightful complaint thereof by one who has agreed that such use may be made. The reciprocal rights
The point made by the plaintiff on his printed brief, that it was but the limited right of certain persons to mine which was reserved by Parks, is not sustained by the proofs. The folios to which he refers have been stricken out of the appeal book ; it seems by stipulation.
The plaintiff also invokes the doctrine of estoppel, and insists that the defendant, having reposed upon its rights, if any it had, until the plaintiff had changed his condition by large expenditures upon his property, may not now, with good faith toward him, insist upon those rights to his detriment. There is no estoppel in the case. It does not appear that the silence or inaction of the defendant misled the plaintiff, or that he at all relied thereupon in his making his primary investment in the premises, or his subsequent expenditure in their improvement.
Having thus given our views of the legal questions involved in the case, it remains to determine the result of their application to the facts. The plaintiff appeals from so much of the judgments below, (upon the questions other than his damages), as are based upon the conclusions of law of the learned justice at Special Term, expressed as follows: First, that the defendant owns, all mines, minerals and ores upon the plaintiff’s lands described in the complaint. Second,
In our judgment the learned justice was correct in arriving at these conclusions. The first, second, third and fifth have been shown to be correct, directly, in the foregoing discussion. The fourth, sixth and seventh depend entirely upon the fact of whether the acts therein mentioned were necessary for the profitable and beneficial enjoyment of the property of the defendant in the minerals. The learned justice has not in terms found as matter of fact that the use in these particulars was thus necessary. And although he has refused to find that all of the use made by the defendant of the plaintiff’s ground has been necessary in carrying on the operations of the mine, he has not found, nor has he refused to find, that the use in the particulars comprehended in the above conclusions of law, was not necessary for some lawful purpose of the defendant. So that we are enabled to look into the evidence, and to make inferences therefrom in support of the conclusions of law and the judgment arrived at by him. We find that there is enough in the testimony, to sustain a finding of fact, that the use of the plaintiff’s land was in these particulars thus necessary. We so infer.
The defendant appeals from the judgment, and has excepted to some of the conclusions of fact. We think that the conclusions thus excepted to are immaterial to the questions now in contention, or are sustained by some of the testimony given. The learned justice does, indeed, find
The learned justice found that the blasting was not conducted with the care usual in such cases. The testimony on which to sustain this is not very great. It is true that the effects of the blasting upon the house and reservoir of the plaintiff have been marked; and it is true that it is in the testimony, that it is not usual for the blasts to produce such effects, so that it may be said consequentially that the blasts have not been such or so conducted as is usual. Yet it is also in the testimony that the house of the plaintiff is peculiarly founded ; on the solid rock, some feet below the surface. The effect upon it, may be quite as much from this peculiarity of structure, as from the lack of care in the blasting. For the evidence is not variant, that no greater amount of powder is used to a charge than is common among miners. It was, however, a question of fact for the trial
It has also excepted to the refusals to find as requested. Certain of these are as-fully met as the defendant has a right to insist upon, by a finding of the request, with a qualification which is sustained by portions of the testimony. Some of them are refused, where no evil result seems to have followed to the defendant; for no conclusion of law or adjudication has been made, inconsistent with the existence of the fact, the finding of which was requested. Those of them, in which the defendant requested the learned justice to find that .all' of the use made by it of the ground was necessary in the operation of the mine, were addressed to the very important issue in the case, upon which much of the testimony taken had a bearing. The learned justice had before him testimony which, if he gave it preponderance, sustains his refusal. Others of requests refused are not now material, or were properly the declined. The important one, as to the blasting, contains several matters, some of which might well have been found, but others which we think that it was in the learned justice to decline, according as he viewed and weighed the variant testimony. Thus it was shown, without contradiction, that it is customary to blast by night as well as day in mining; it was testified that the defendant had taken all the care that it possibly could in blasting, and had done nothing that was not necessary; that the charges did not exceed one pound of powder to any blast, while blasts are customary, made with twenty-five pounds; it was testified, with no contradiction, that there was no other way of dislodging the ore than by blasting it out. On the other hand it was shown that the effects of the blast were much felt by the plaintiff and his family and his house, and that it was unusual for a house to be so affected by the blasting in a mine. How, one request refused contained this clause : “ The blasts of the defendant have not been unusual in size.” We have before commented on the affirmative finding of fact on this subject, and for the same reasons we are obliged to conclude that
The defendant excepts to the several conclusions of law: 1st. That the tramway cannot by right be raised above the level of the ground, unless so high as that it may be, passed under by horses and carriages. 2d. That it has no right to deposit or keep upon plaintiffs land any ore or refuse stuff or rubbish, or any barn, stable, blacksmith shop, powder-house or other building. 3d. That it has no rijght to blast in the night-time, during the hours for sleep. 4th. Hor at any time so as to shake, crack or injure the erections of the plaintiff. 5th. That it has a right to sink a steam engine on the premises, for the purpose of working said mine, but not in the manner in which it has operated it. 6th. That it has no right so to work the mine as to deprive the plaintiff’s premises of the necessary support ■ to prevent the surface from falling in. 7th. To the amount of damages and to the judgment ordered.
The sixth of these findings, for reasons above given, must be construed as holding no more than that the surface, in its natural state, must have sufficient support from the underlying minerals. In this view it is correct.
As to all the rest of these conclusions, except as to one hereafter especially noted, they are right or not, as is found the one controlling question of fact whether the acts of the" defendant to which they refer were or were not necessary for the profitable and beneficial enjoyment of the defendant’s property. We have given our view of the legal principles which should govern such cases as this. It will have been observed that the application of them hinges on this fact. The learned justice has not found it; he has refused to find it. He would find no more than that it was convenient. 1 Whatever might be our opinion as to the necessity of the use, if we should look into the testimony, we are not at liberty
It will be seen that, technically, there is but one error, of
In this view it is unnecessary to look into the questions raised as to the various items of damages adjudged.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.
Ante, p. 198.