afterwards conveyed to persons under whom the plaintiff claims. *90] It is submitted that this is a covenant the benefit of which runs with the land, and that the declaration sufficiently shows that the acts in respect of which compensation is claimed have been done by persons for whose acts the defendant is answerable, viz., the lessees of the testator, or their assigns. It is true the declaration does not in terms allege that the lease authorized the working of the mines under the land in question: but it must be assumed that the working was rightful, until the contrary is shown. The plaintiff would have no remedy against the lessees or their assigns, unless he could show them to be wrongdoers. The question is, whether the compensation which the defendant is to pay under his covenant, is limited to surface damage. The sixth plea probably means to allege that the acts complained of were the acts of wrongdoers; but it is not so stated. Nor does the seventh plea afford any answer to the declaration. [WILLIAMS, J.—• Does not the declaration confine the complaint to acts done under the lease?] It is submitted that it does not. [WILLIAMS, J.-Then why mention the lease?] It was necessary to set out the lease, in order to explain the breach. [BYLES, J.-The sixth plea is equivalent to an allegation that the acts complained of were done by a stranger.] The seventh plea is clearly bad: the deed of 1857 evidently contemplates that there shall be houses built upon the land.

*91] Quain, contrà.(a)—The first count is clearly bad: *the only breach assigned, is, non-payment of compensation for damage. The count shows that the injury complained of is, injury to the surface of the land by letting it down and so damaging the plaintiff's buildings. It is submitted that that is not a damage within the compensation clause; but that the plaintiff must seek his remedy by an action upon the case against the person who did the mischief. The compensation contemplated by the deed, is to be for something done. in pursuance of the reservation: but the declaration does not show that the damage complained of is the lawful winning and working of the coal under that reservation. A leading case upon this subject is Harris v. Ryding, 5 M. & W. 60. There, A., being seised in fee of certain lands, granted them to P., his heirs and assigns, reserving to himself, his heirs and assigns, "all and all manner of coals, seams and veins of coal, iron-ore, and all other mines, minerals, and metals which then were or at any time and from time to time thereafter should be discovered in or upon the said premises, &c., with free liberty of ingress, egress, and regress to come into and upon the premises, to dig, delve, search for, and get, &c., the said mines and every part thereof, and to sell and dispose of, take, and convey away the same, at their free will and pleasure, and also to sink shafts, &c., making a fair compensation to P. for the damage to be done to the surface of the premises, and the pasture and crops growing thereon." It was held, that, under this reservation, A. was not entitled to take all the mines, but only so much as he could get, leaving a reasonable support to the surface. Parke, B., in the course of the argument, observes,—“ The

(a) The points marked for argument on the part of the defendant were as follows:"1. That it is not shown by the declaration that any damage has been done by any of the persons for whose acts the defendant has covenanted to make compensation,-2. That he is not liable for the damage occasioned by the houses, &c., being put upon the land."

clause as to compensation means for damage done by exercising the powers reserved. This is case for working the mines in an unreasonable manner. If you work the mine in an unreasonable *manner, it is not within the clause." And, in giving judgment, he [*92 says: "The rule of law is, that a reservation is to be construed strictly: still, however, it would reserve to the grantor all that was not conveyed by the grant, provided the meaning and intention of the parties be clear. What then is the meaning and intention of the parties here? It is clearly the meaning and intention of the grantor that the surface shall be fully and beneficially held and enjoyed by the grantee, he reserving to himself all the mines and veins of coal and iron-ore below. By reasonable intendment, therefore, the grantor can be entitled under the reservation only to so much of the mines below as is consistent with the enjoyment of the surface according to the true intent of the parties to the deed, that is, he only reserves to himself so much of the mines and minerals as could be got, leaving a reasonable support to the surface." [WILLIAMS, J.-That case is also an authority to show that the compensation clause only gives a cumulative remedy.] Smart v. Morton, 5 Ellis & B. 30, is a very similar case. [WILLIAMS, J.If a man covenants to pay compensation for damage resulting from what he properly does, does he not à fortiori covenant to pay compensation for what he improperly does?] The result of all the cases,Roberts v. Haines, 6 Ellis & B. 643 (E. C. L. R. vol. 88), (in error, Haines, app., Roberts, resp., 7 Ellis & B. 625 (E. C. L. R. vol. 90)), Robotham v. Wilson, 8 Ellis & B. 123 (E. C. L. R. vol. 92), 8 House of Lords Cases 348, Bonomi v. Backhouse, E. B. & E. 642, Backhouse v. Bonomi, 9 House of Lords Cases 503,-is, that a reservation of a power to work mines and minerals does not authorize a working so as to destroy the support of the surface; and that the defendant's liability is confined to compensation for such acts as he or those for whose acts he is responsible may do by virtue of the reservation. The next question is as to the person by whom the *injury is to be com[*93 mitted. The action is not founded upon the lease, but exclusively on the reservation in the original grant: the lease is introduced merely for the purpose of showing by whom the injury was committed. The reservation in the deed is," except and always reserved out of these presents all and every the seam and seams of coal and other minerals under the said hereditaments hereby granted, with power to win, work, and carry away the same under or over any part of the said hereditaments and premises; the said R. D. Shafto or the person or persons for the time being entitled thereto, and his and their assigns, paying to the said R. Robinson (the lessee), his heirs and assigns, reasonable compensation for any damage which he or they may sustain thereby." To assign a good breach of that covenant, the declaration must aver a working of the mines by R. D. Shafto or the person or persons for the time being entitled thereto : whereas, it is consistent with what is here alleged that the injury complained of was done by a perfect stranger; there is no allegation that the working was pursuant to the reservation in the deed of 1857, or pursuant to the lease. [BYLES, J.-May this be treated as a count in tort?] It is submitted not; for, in that case, it must be shown that the injury was done by the defendant or by some person with his privity and by his

authority. [BYLES, J.-You say that workings without the power are wrongs; and that the defendant is liable for lawful workings, but not for wrongs.] Precisely so: the authorities show that the wrongdoer is the only person liable. The 7th plea addresses itself to the suggestion that the land in question was conveyed for building purposes. Since the case of The Caledonian Railway Company, app..

Sprot, resp., 2 Macq. 449,(a) it cannot be denied *that, if this had *94] been a grant of land expressly for building purposes, there would have been an implied grant of the land together with the buildings to be erected upon it. Here, however, there is no express grant for building purposes; no covenant to build. The plaintiff relies on the collateral covenant by the grantee that the hereditaments and premises conveyed by the deed, "or any buildings now or hereafter to be erected thereon," shall not be used for certain purposes. The obvious meaning of that, is, that, if the grantee shall hereafter choose to use the land for building purposes, he shall not thereby create a nuisance. [WILLIAMS, J.-There is abundant evidence, on the face of the deed that the parties contemplated that the land would be built upon.] That will not bring the case within The Caledonian Railway Company, app., Sprot, resp. There, the company could not use the land for any other purpose than the construction of their railway. The plea is clearly good, within the cases of Brown v. Robins, 4 Hurlst. & N. 186, and Stroylan v. Knowles, 6 Hurlst. & N. 454. In the lastmentioned case it was held, that, where the working of mines, in how*95] ever careful a manner, has caused a subsidence of the adjacent land, the owner is entitled to recover in respect of damage to buildings thereon, although erected within twenty years, provided their weight did not contribute to the subsidence.

Manisty, Q. C., in reply.-The question is narrowed to this,whether there was a rightful or a wrongful working of the mines by the lessees or their assigns: if the former, it is conceded that the defendant is liable; but, if the latter, it is contended that he is not. Vice-Chancellor Wood decided yesterday, in a suit by the tenant for life to restrain the lessees from working the mines so as to disturb the surface, that they were not only entitled but bound to work out all the coal, irrespective of any injury that might be done to the surface. Smart v. Morton, 5 Ellis & B. 30, decides that you must look at the reservation to see what is a rightful and what a wrongful working. The plaintiff is no party to the deed. It is for the defendant to show, if the fact be so, that the working was wrongful. [The Court suggested that the declaration should be amended by striking out the words in italics in p. 87, and substituting the following," by such

(a) It was there held that a conveyance of land to a railway company for the purposes of the line, gives a right by implication to all reasonable subjacent and adjacent support connected with the subject-matter of the conveyance: and therefore, although in the conveyance to the railway company the minerals are reserved, the grantor is not entitled to work them, even under his own land, in any manner calculated to endanger the railway. But, if I grant a meadow to A. for grazing purposes, retaining the minerals and the adjacent land, and if A., having no warranty against subsidence, thinks fit to build a house on the edge of the meadow, and the house falls, he is without remedy against me, and has himself alone to blame for the consequences. If, however, the grant were made expressly for building purposes, there would then be an implied warranty of support, both subjacent and adjacent.

And see Elliot v. The North Eastern Railway Company, 32 Law J., Chan. 402 (in the House of Lords).

winning, working, and carrying away as in the first deed is mentioned and provided for," withdrawing the demurrer to the declaration, and substituting a traverse for the sixth plea. After some discussion, this was assented to.] The substantial question is, whether the winning and working was rightful. It may be assumed to have been done under a lease granted before the conveyance of 1857. With knowledge of the existence of the lease, the defendant chooses to convey the land with this compensation clause. The covenant will be construed with reference to the state of things at the time of the making of the deed: Smart v. Morton. As to the seventh plea,-it may be [*96 conceded, that, if the houses were built under an ordinary lease, and their building occasioned the subsidence, the plaintiff would have no cause of action. But it is otherwise where it is manifest on the face of the deed that it was contemplated that the land should be used for building purposes. Regard being had to the dimensions of the subject-matter of the conveyance, at the comparatively large price paid for it, and at the nature of the covenants entered into by the grantee, it is impossible to doubt that this was a grant for building purposes.

WILLIAMS, J.-I am of opinion that the declaration, as amended, is good, and the seventh plea bad, and consequently that the plaintiff is entitled to judgment. As the declaration originally stood, in conjunction with the sixth plea, some very important points were raised: and the material part of those points will arise again whenever the argument upon the traverse which is now substituted shall take place. The declaration, after setting out the purchase-deed of February, 1857. and bringing down the title to the plaintiff, proceeds to allege the damage done after his title accrued; and it states the damage in this way,-"the said messuages and dwelling-houses were injured and damaged, and the plaintiff sustained damage thereto, by such winning, working, and carrying away as in the first deed is mentioned and provided for, of seams and parts of seams of coal, which seams extended, reached, and were under the said piece of ground above mentioned, and which sustained and supported the said piece of ground and the said messuages and dwelling-houses," &c. The amended record will contain a traverse of that averment, in lieu of the sixth plea: and the first question we have to decide, is, whether the declaration as thus amended is good. I am of opinion that it is. There is a distinct admission by the demurrer that the injury was such as [*97 formed the subject of compensation under the clause for compensation contained in the deed; and the declaration is good, unless the nature of the covenant makes such a breach repugnant and impossible. I was at first much struck with the view presented on the part of the defendant, that this was nothing more than the ordinary covenant contained in deeds where there is a separation of the mines and minerals from the surface of the land, viz. that the grantor shall have a right to win and work the minerals and to use the surface for the purpose of carrying them away, constructing works, and opening shafts, payable a reasonable compensation for surface damage. At first I was inclined to think that this was simply a covenant of that But we have nothing to do with that now. Even construing the covenant in that narrow way, I cannot say that it is not possible

sort.

that the damage complained of may have been done by a winning and working of the mines by persons for whose acts the defendant is responsible. As to the seventh plea,-we are not fettered by any of the authorities cited, though the reasoning of some of them may sefully be applied to the present argument. The question is one of Construction upon the surrounding circumstances appearing upon the record. The plea in effect denies that the plaintiff is entitled to compensation under the clause for compensation contained in the deed, for damage (if any) resulting from the winning and working of the minerals under the land, because such damage was occasioned by the erection of the houses thereon. It is plain, I think, from the whole tenor of the deed, that the parties did contemplate that houses would be built upon the land it is almost treated as a certainty. It seems monstrous to say, that, where a deed contemplates the building of *houses, and provides specifically for what shall be done when the *98] houses are built, the grantee shall forfeit his claim to compensation because he has carried into effect that which was contemplated by the grant. I am clearly of opinion that the plaintiff is entitled to compensation if he has sustained damage from the working of the mines, notwitstanding his having built on the land, and consequently that the seventh plea is no answer to the declaration.

WILLES, J.-I am of the same opinion. As to the declaration, all that the court does, is, to direct that the issue shall be in the proper form for determining whether or not the acts complained of are acts which are within the compensation clause in the deed. As to the seventh plea, the question raised, is, whether the deed affords any protection in respect of injury done to the surface of the land with houses built upon it. I must admit that my mind has fluctuated during the argument on this point. The only mention of buildings is in the covenant of the vendee against using the premises so as to incur danger or create a nuisance, and has reference rather to the rights of the vendor than to those of the vendee. But, when it is pointed out that this relates to "any buildings now or hereafter to be erected" on the land, I think it must clearly be implied that the building of houses was contemplated, and that the houses to be built were entitled to support, and consequently that the damage done to them is to be compensated for.

BYLES, J.-It is unnecessary to express any opinion upon declaration as it originally stood. The amendment, which was very properly consented to by Mr. Quain, has entirely changed its effect. The question now presented by the breach, as amended, is, whether *99] the working of the mines which is complained of was a working provided for by the deed. I cannot say that that is a bad breach, unless I am prepared to say that under no conceivable circumstances could it be a good breach. Upon this I express no opinion. But, as to the seventh plea, I entirely agree with my Brothers Wil

liams and Willes.

Rule accordingly, the costs to be costs in the cause.(a)

(a) At the trial the plaintiff obtained a verdict, which there was no attempt to disturb.