Signification of term land. Injury caused by adjoining building. CUJUS EST SOLUM EJUS EST USQUE AD CŒLUM. (Co. Litt. 4. a.)-He who possesses land has an interest in, and exclusive right to, that which is upon or above it to an indefinite height. Land, in its legal signification, has an indefinite extent upwards, so that, by a conveyance of land, all buildings, growing timber, and water, erected and being thereupon shall likewise pass (p). So, if a man eject another from land, and afterwards build upon it, the building belongs to the owner of the ground on which it is built, according to the principle derived from the Roman law, ædificatum solo solo cedit (q), which maxim we shall separately consider expressed in a somewhat more general form. If then, in the case just supposed, the owner brings ejectment for the land, he may do so without mentioning the building, unless, indeed, it be a messuage, in which case it ought, perhaps, to be particularly named (r). So, when it is wished to recover water, as ponds or streams, to which the claimant is exclusively entitled, it may be done by the description of so many acres of land covered with water (s). From the above principle it follows, that a person has no right to erect a building on his own land which interferes with the due enjoyment of adjoining premises, and occasions damage thereto, either by overhanging them, or by the flow of water from the roof and eaves upon them, unless, indeed, a legal right so to build has been conceded by grant, or may be presumed by user, and by operation of the recent stat. 2 & 3 Will. 4, c. 71, s. 2. (p) Co. Litt. 4. a.; 2 Bla. Com. 18, 19; 9 Rep. 54. (q) Bell, Dict. and Dig. of Scotch Law, 33. (r) Goodtitle d. Chester v. Alker, 1 Burr. 143, 144. (s) 2 Bla. Com. 18. tion. The difficulty which frequently arises in these cases is, Form of acwhether the form of action should be case or trespass; the former being for the consequential, the latter for the immediate and direct injury resulting from the act of defendant. Thus, if the occupier of a house, who has a right to have the rain fall from the eaves of it upon the land of another person, fixes a spout whereby the rain is discharged in a body upon the land, the proper form of action by the owner of the land against the occupier of the house for this injury is an action on the case, because the flowing of the water, which constitutes the injury, is not the immediate act of the occupier of the house, but the consequence only of his act, viz. the fixing the spout (t). Where, however, a direct injury is committed to houses or lands which are in the possession of the party complaining, the proper form of action is trespass; as, where the defendant builds upon the soil or messuage of the plaintiff. There are, also, some few instances in which case and trespass are concurrent remedies; as, for heightening and building on a party-wall, whereby plaintiff's windows are darkened. In which case, it was observed, that the injury was done partly by an act of trespass, viz., the building on the property of the plaintiff, and partly by that which was not an act of trespass, but the subject of an action on the case, viz., the building on the defendant's soil and the consequent obstruction (u). But not only for each of the above injuries will an action lie at suit of the occupier, but the landlord and reversioner may also recover by action on the case, if the jury think there is a damage to the reversion, as in the case above mentioned, for building a roof with eaves, which discharged (t) Reynolds v. Clarke, 2 Lord Raym. 1399. See Thomas v. Thomas, 2 Cr., M. & R., 34; 9 Rep. 54. Injury to reversion. Where build ing overhangs water by a spout into adjoining premises (x); but the declaration must allege the act to have been done to the damage of the reversion, or must state an injury of such a permanent nature as to be necessarily injurious thereto (y). Not only will a man be liable who erects a building either upon or so as to overhang his neighbour's land (2), but the case is the same if the boughs of his tree are allowed to grow so as to overhang my land, which they had not been accustomed to do (a). In a case before Lord Ellenborough at Nisi Prius (b), which was an action of trespass for nailing a board on the defendant's own wall, so as to overhang the plaintiff's garden, and in which case the above maxim was cited in support of the form of action, his Lordship observed, that he did not think it was a trespass to interfere with the column of air superincumbent on the close; that, if it was, it would follow, that an aëronaut was liable to an action of trespass, qu. cl. fr., at the suit of the occupier of every field over which his balloon might happen to pass, as the question, whether or not the action was maintainable, could not depend upon the length of time for which the superincumbent air was invaded, and that, if any damage arose from the object which overhung the close, the remedy was by action on the case, and not by action of trespass (c). (x) Tucker v. Newman, 11 A. & E. 40. (y) Jackson v. Pesked, 1 M. & S. (z) 1 Steph. Com. 158; 3 Id. very for erecting it. As to what is a sufficient possession to entitle a person to bring trespass, see Dyson v. Collins, 5 B. & Ald. 600. (a) Norris v. Baker, 1 Rol. Rep. 393; Lodie v. Arnold, 2 Salk. 458; 3 Steph. Com. 500. (b) Pickering v. Rudd, 4 Camp. 219. (c) See Reynolds v. Clarke. 2 Ld. Raym. 1399. downwards as wards. Not only has land in its legal signification an indefinite Land extends extent upwards, but in contemplation of law it extends well as upalso downwards, so that whatever is in a direct line between the surface of any land and the centre of the earth belongs to the owner of the surface; and hence, the word "land," which is nomen generalissimum, includes, not only the face of the earth, but every thing under it or over it; and therefore, if a man grants all his lands, he grants thereby all his mines, his woods, his waters, and his houses, as well as his fields and meadows (d). Where, however, a demise was made of premises late in the occupation of A., (particularly described), part of which was a yard, it was held, that a cellar, situate under the yard, and late in the occupation of B., did not pass by the demise; for though primâ facie it would do so, yet that might be regulated and explained by circumstances (e). The maxim, then, above cited gives to the owner of the soil all that lies beneath its surface, and accordingly the land immediately below is his property. Whether it is solid rock, or porous ground, or venous earth, or part soil and part water, the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure (f); although, as already stated, he may in some cases incur liability by so digging and excavating at the extremity and under the surface of his own land as to occasion damage to the house or other building of his neighbour (g). Although the general rule, which obtains in the absence of any express covenant or agreement between the parties (d) 2 Bla. Com. 18. (e) Doe d. Freeland v. Burt, 1 T. R. 701. (f) Judgment, Acton v. Blundell, 12 M. & W. 324, 354. See Magor v. Chadwick, 11 A. & E. 571. (g) Ante, p. 162; Dodd v. Holme, 1 A. & E. 493; Wyatt v. Harrison, Separate proface and mine perty in sur rals. interested in land, is as above stated, yet it frequently happens that a person, being entitled both to the mines and to the land above, grants away the land, excepting out of the grant the mines which would otherwise have passed under the conveyance of the land, and also reserving to himself the power of entering upon the surface of the land which he has granted away, in order to do such acts as may be necessary for the purpose of getting the minerals excepted out of the grant, a fair compensation being made to the grantee for so entering and working the mines. In this case one person has the land above, the other has the mines below, with the power of getting the minerals; and the rule is, according to the maxim last considered, that each shall so use his own right of property as not to injure his neighbour, and, therefore, the grantor will be entitled to such mines only as he can work, leaving a reasonable support to the surface. And here we may observe, that the bare exception of the mines and minerals, without a reservation of right of entry, would vest in the grantor the whole of the mines and minerals; but he would have no right to work or get them except by the consent of the plaintiff, or by means of access through other shafts and channels, with which the grantee's land had nothing to do, for here the two properties, viz., in the surface and in the subterranean products, are totally distinct (h). Analogous to the preceding case is that of the grant of an upper room in a house, with the reservation by the grantor of a lower room, he undertaking not to do anything which will derogate from the right to occupy the upper room. In this case, if he were to remove the supports of the upper room, he would be liable in an action of covenant (¿). (h) Harris v. Ryding, 5 M. & W. 60, 66, 73. |