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bor, but, having exercised due care, his duty seems to be ended, and the lower miner in such cases should, and generally must, protect himself by proper barriers against invasion. A fair statement of the law, as we view it, is thus made by Lord Hatherly: “The drainage for which miners pay is the carrying away the water from their own mine in a drift or channel into another drift or channel in their neighbor's mine, carrying it by an artificial channel. The natural percolation of water from one mine to another is not a matter as to which the owner of the lower mine has any right of complaint as against the owner of the upper mine. The owner of the upper mine has a right to work it just as he likes, and his neighbor below cannot complain unless he finds that the water has been turned into his mine by channel or artificial arrangement." And the barriers left by the lower miner are not workable ground; 3 but it has been held, in a case which seems to stand alone, that the upper miner must drain to the surface if possible.

$ 1061. Extreme doctrine in England — Owner liable for all damages.- What may be considered by some as an extreme doctrine was laid down by Mr. Justice Blackburn in an early English case, afterwards affirmed by the House of Lords. The learned justice decides, in effect, that whenever a person brings or keeps upon his land anything likely to do mischief, if it escapes, whether beasts, water, filth or stenches, must do so at his peril, being liable for all damages ensuing to his neighbor if he fails to keep it, water especially, properly on his own property. This reasoning

Am. Rep. 394; Nichols v. Marsh- 4 Locust Mountain C. & I. Co. v. land, L R. 10 Ex. 255.

Gorrell, 9 Phila. 247. 1 Smith v. Kenrick, 7 C. B. 515; 5 Fletcher v. Rylands, L R. 1 Ex. Bannon v. Mitchell, 6 Ill. App. 17. 265.

2 Phillips v. Homfray and Foth- Rylands v. Fletcher, L R. H, L. ergill v. Phillips, L R. 6 Ch. App. 330. See also Kahill v. Easton, 18 770.

Minn. 234, 10 Am. Rep. 184; Locust 3 Shafto V. Johnson, 8 B. & S. Mountain Coal & Iron Co. v. Gor. 252

rell, 9 Phila. 247.

6

is certainly sound and logical, and is but another way, as we view it, of stating the rule that one must so use his own as not to injure others.

$ 1062. Statutory barriers - Constitutionality upheld. In some of the states there are statutory provisions requiring certain barriers to be left upon the boundary line of each claim. Such a provision has received consideration in the state of West Virginia, where the requirement was that at least five feet should be left on the line dividing the land from the adjoining land, and providing a penalty of five hundred dollars to any person injured for violation. After considering the form of action, and the fact of the remedy being cumulative, the court proceeded to consider its constitutional aspects in these words: “But it is argued by defendant's counsel that the act is an infringement of the right of private property, transcending the legislature's constitutional power. If the defendant has the right to use his own land and coal mine for all the purposes to which such property is usually applied when, where and how he may see fit, without limitation or restriction, his neighbor, the plaintiff, has an equal right in his adjoining tract. Upon each one is therefore imposed the correlative duty of so using his own land as not to injure his neighbor's or be hurtful to the commonwealth.

This is no undue assumption of the right to apply the police power to a subject which does not fall within it, for regulations on all these subjects have long been recognized as wholesome and reasonable, and as fit subjects for the exercise of the police power, as tending to preserve the rights of the citizen and promote the welfare of the commonwealth. The mining of coal is one of the largest industries carried on in the state. In mining, proper support and ventilation are necessary, and an ample supply of fresh air is stringently exacted by our law on the subject. This is necessary for the health and safety of the miner engaged in a dangerous em

1 See post, SS 1074–76.

ployment, and for that reason the public welfare requires it; but no proper system of ventilation can be maintained by any mine owner unless the area to be worked by him is isolated or bounded by a zone or rib of coal thick enough to support the roof, and to be thick enough to prevent the escape of the air, with no passways down through his dividing line which may prevent the due circulation of the air, and render due ventilation very difficult. ... Thus, we see that this rib of solid coal not to be mined into by either of the adjoining owners was to be contributed by each in equal parts, for the mutual benefit of each, for the protection of the surface, to secure independent systems of ventilation, drainage and workings, and in aid of an industry so great and widely diffused that the state as a whole is interested therein.

This regulation works no hardship on one for the benefit of the other, but is impartial, just and reasonable, imposing a common burden for the benefit of all such owners.” 1

.

Mapel v. John, 42 W. Va. 30, 24 There are statutory regulations for S. E. Rep. 608, citing with approval the protection of miners, and reguHaigh v. Bell, 41 W. Va. 19, 31 L. lating mining, in several of the R. A. 131; 15 Am. & Eng. Ency. states, which are set out in the Law (1st ed.), 593 et seq.; Cooley, Appendix. Const. Lim. (3d ed.), top page 578.

CHAPTER VII.

OF TAILINGS AND DEBRIS STATUTES, AND HEREIN OF DUMP.

# AGE AND REFUSE MATTER, AND MISCELLANEOUS.

ARTICLE A.

Tailings, Debris and Dumpage in General.

§ 1070. Review of easements and of additional servitudes — What by

statute and what by contract. 1071. Public use - When a judicial question. 1072. Must exercise right if claimed – When will not be enjoined. 1073. No inherent right of dumpage. 1074. Value of land immaterial. 1075. Substantial rights should not be wrongfully invaded. 1076. Tailings and debris statutes, and the general debris question. 1077. Modification of the strict riparian doctrine. 1078. Act creating the California Debris Commission, 1079. The doctrine of this article restated.

$ 1070. Review of easements and of additional servitudes — What by statute and what by contract. It has been, and shall continue to be, our intention to avoid a discussion of the question of eminent domain, except so far as it is inseparably connected with the matter in hand. We have elsewhere noticed at length the easements and servitudes especially authorized by statute to be impressed upon the patent issued by the government and authorized to become the subject of eminent domain within the public-land states and territories.1

We do not desire to be understood as asserting that congress has the right to interfere with a sovereign state in respect of the subjects over which the right of eminent domain may be exercised, nor the manner of its exercise. Nor do we think that this has in any manner been attempted. Congress has simply provided, as it had a right to do, that the local legislatures might enact statutory provisions regulating the exercise of the right of eminent domain over mining claims, the ultimate title to which is, until the issuance of patent, still in the United States. In other words, that while, ordinarily, the right of eminent domain over property belonging to the United States may only be exercised as provided by congress, an exception is made in this case, and the local state legislature is given authority to enact provisions governing the exercise of that right over unpatented, as well as patented, mining claims. This matter has also been considered elsewhere and we will make no further reference to it here.

1 Ante, SS 462, 463, 756. See also SS 2328, 2329, R. S. U. S.

We have also noticed at some length, in the preceding chapters of this part of our work, the other easements and servitudes incidental to severed estates. We bare now to deal with still another class of easements, or severed estates, not elsewhere considered.

Separate from and servient to the other estates is the right, usually acquired by contract, but in most jurisdictions, indeed wherever mining is recognized as a public use, permitted by the exercise of the right of eminent domain, for dumping ground and tailings beds and for other similar purposes. But ways of necessity can in general be acquired by condemnation whether mining is recognized as a public use or not."

$ 1071. Public use — When a judicial question.— There is much diversity of opinion as to whether the question, what is or what is not a public use, is a judicial or a legislative one. But the best opinion and the best considered

I Act. Feb. 22, 1865, 13 Stat. at L, 4 As to statutes wherein mining p. 441, $ 9; R. S. U. S., § 910. is considered as a public use, see

2 See sections cited in note 1, post, Appendix. ante, p. 886.

5 Williams v. Gibson, 84 Ala. 228, : Ante, this part, ch. V, art. A, 4 S. Rep. 350. SS 995, 1006, 1008, 1009, 1011, 1016 6 See 1 Am. & Eng. Ency. of Law,

vol. 10, p. 1056, and cases there cited.

et seq.

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