mission of the injury. But he was directed forthwith to try his right at law (i).

In a later case, the inundation was imputed to a trespass committed more than fifty years ago, and there was much dispute as to the actual supply and course of the water. The Court, after an injunction for restraining the defendants from working in any places which might endanger the plaintiff's mines till answer or further order, and after the hearing of the cause, refused to make the injunction perpetual, but retained the bill and continued the injunction for one year, with liberty for the plaintiff to bring an action at law (k).

It was intimated in the above case by Wigram, V. C., that the present practice was to provide in the order for an injunction for the trial of the right in a court of law, in cases where the legal right was not admitted. The decree was varied, on appeal, by the omission of some directions to admit certain facts at the trial (1).

SECTION IV.

OTHER INJURIES-PRIVATE AND PUBLIC NUISANCES.

OTHER injuries to the surface are usually provided for by compensation clauses.

In the absence of agreement, mining adventurers will, of course, be responsible for all injuries occasioned to the owners of property unconnected with the lands in which the mines are worked. The injuries arising from the poisonous or deleterious particles of mineral substances, or from the processes used in smelting or refining ores, will be liable to compensation by those who have prevented the full enjoyment of the ordinary advantages conferred by Nature. The loss of cattle and other valuable stock may thus fall upon

(i) Robinson v. Lord Byron, cited 18 Ves. 517.

(k) Duke of Beaufort v. Morris,

6 Hare, 340.
(1) 2 Phill. 683.

the adventurer, unless these injuries are produced by the negligence or default of the owners or occupiers themselves. It may be observed, however, that the commission of a slight or insignificant injury will not suffice to render the miner liable. There must be some act which is worthy of redress (m). De minimis non curat lex. It should also be remembered that the prosperity of a mining country and its inhabitants depends upon the successful efforts of the adventurer. The value of all property in the vicinity of mines is inseparably associated with the spirit of adventure. The miner, therefore, should not be harassed in his operations, by claims of an unsubstantial or imaginary character; for the benefits he confers generally far surpass the injuries he may commit.

It sometimes happens, that injuries are produced from the working of mines in mountainous countries, by the rubbish and refuse of a mine being so placed by the adventurers as to be carried down from time to time by the floods of a stream. The water may be thus diverted from its natural and accustomed channel by repeated obstructions and accumulations; and may consequently inflict much mischief upon the lands adjoining to its course. If such an injury were proved against the proper persons, the proprietors of these lands, unless restrained by stipulation or prescription, would obtain damages for the injury sustained. The progress of such an injury, however, is often very gradual, and not easily distinctly attributable to the true causes. It might sometimes be very doubtful, whether the injury could not be accounted for by natural or other causes, which may have operated to produce disorder on the banks of the river; or, at any rate, whether these other causes may not have materially aggravated the consequences of the acts of the adventurers. These difficulties in ascertaining the facts might also be accompanied with other objections to redress of a still more formidable character. There may be many mines which may furnish (m) See Taylor v. Bennett, 7 Car. & P. 329.

F F

refuse to be carried down by the floods of a stream; and each mine may have been subject to a perpetual change of partners. In such cases, how is the remedy to be applied, if the facts were undisputed? At what particular time can the injury be said to be committed? The injury is gradual, and the real basis of it may, perhaps, be attributable to the operations of old adventurers, whose existence, either as a company, or as individuals, may have long ceased. The wrong may have been the slow growth of generations; and it would be unjust to entail the consequences of the negligence of former upon the present adventurers. It may have been produced by the combined acts of many different persons, interested in various mines producing unequal quantities of earth and refuse, and who might have been entitled to the mining property, not only in unequal shares, but for unequal and variable periods. In such cases of difficulty, the remedy, it is feared, would become hopeless. But in cases of more simple occurrence it might be more practicable.

Again, a continued user for twenty years will legalize a private nuisance (n). This user has not necessarily any reference to the persons who may first or successively come within its influence. The old notion of coming to a nuisance is not supported by recent authorities. The user may be said to be appendant to the land, and not to depend on the persons. An occupier or an owner in coming to his new dwelling is entitled to all the rights belonging to it, and he will, of course, be subject to all legalized annoyances (o).

In an early case, it was held, that in an action for using a lime kiln so near to a dwelling that the smoke scorched the fruit trees, it could not be pleaded that the cause of nuisance was erected before the plaintiff had any interest in the tenement (p).

(n) Viner's Ab. Nuisances G.; Elliotson v. Feetham, 2 Bing. N. C. 134; Wright v. Williams, 1 M. & W. 77. See Gale on Easements, 275. (0) Bliss v. Hall, 6 Scott, 500.

(p) Assiz. Book, 4, pl. 3, p. 6. See Beswick v. Cunden, Cro. Eliz. 402; Moore, 353, 449, 599; Rolf v. Rolf, 5 Rep. 101; Penruddock's case, 5 Rep. 101.

In the late case of Elliotson v. Feetham, just cited, an action was brought for a nuisance, produced by workshops of an iron manufactory. The defendants pleaded a user of ten years before the plaintiff became possessed of his house. But it was held, that the defendants should at least have alleged a holding of twenty years' duration.

In another case, also just cited, the defendant pleaded a possession of three years before the coming of the plaintiff. But the plea was overruled. Tindal, C. J., said, the defendant might be the first occupier-but the plaintiff came to his house clothed with all the rights appurtenant to it, one of which at common law is a right to wholesome and untainted air, unless the business has been carried on there for so great a length of time that the law will presume a grant from his neighbours in favour of the party who causes it (g).

The question of fact, whether the cause of complaint amounts to a nuisance or not, is for a jury to decide. Special damage must be shown. But it is no answer to an action by a private person, that the nuisance is indictable as a public wrong (r).

A smelting-house, adjoining to a field, whereby the grass was withered, and horses and cows were killed, has been enumerated among nuisances (s).

The increase of nuisances by larger volumes of smoke, or for any new purposes, or enlarged machinery, seems to be subject to the same law that prevails in the disturbance of river rights.

In a late case of a brick kiln, which had been erected within fifty yards from a country residence, an injunction was obtained to restrain the further burning of bricks as a private nuisance. K. Bruce, V. C., who was requested to decide the case without directing an action or issue, said, the plaintiff was entitled to untainted and unpolluted air,

(q) Bliss v. Hall, 6 Scott, 500. (r) Chichester v. Lethbridge, Willes, 73; Crowder v. Tinkler, 19

Ves. 621.

(s) 1 Roll. Ab. P. 88, Action on the Case, pl. 6, 7.

not necessarily as fresh, free and pure as at the time of building his house, but not rendered incompatible with physical comfort. The process of brick-making must communicate smoke, vapour and floating substances to the air, which, from the relative position of the two parties, must become mixed with the air supplied to the house and pleasure ground, without previous dispersion or diminution. This was an inconvenience, not fanciful, or as one of mere delicacy or fastidiousness, but materially interfering with the ordinary comfort of existence (t).

There is no obligation by common law on an owner or an occupier to maintain his own fences so as to prevent the trespasses of his neighbour. He is only bound so to maintain them as to prevent trespasses from his side. If, therefore, he dig a pit in his own land, he is not obliged to put a fence round it, to keep trespassers from falling into it (u). It seems, however, that a species of easement may exist, by which an owner must keep his fences good against the cattle of his neighbour (x), and must, therefore, fence his pits, as under the Hebrew law (y). This right is confined to cattle; and it does not extend to cattle of other owners straying into the land enjoying the easement (z). The fencing of pits in coal mines is now enforced by the Coal Mines Inspection Act.

It seems, also, that where no such obliging easement can be said to exist, there can be no remedy for injuries. Thus, it was held, if A. seised of a waste adjoining a highway dig a pit in the waste within thirty-six feet of the way, and the mare of B. escape into the waste, and fall into the pit, and there die, B. shall not have any action against A., for that

(t) Walter v. Selfe, 20 L. J., N. S., C. C., 433.

(u) Roll. Ab. 88, pl. 4; Jordin v. Crump, 8 M. & W. 788.

(x) Anon., Ventris, 256; Rooth v. Wilson, 1 B. & Ad. 59; Powell v. Salisbury, 2 You. & J. 391; Boyle v. Tamlyn, 6 B. & C. 337, per Bay

ley, J.

(y) Exod. xxi. 23.

(2) Dovaston v. Payne, 2 H. Bl. 527, per Heath, J. See 3 Wils. 126; Ricketts v. The East and West India Docks and Birmingham Junction Railway Company, 21 L. J., N. S., C. P., 201.