Chap. IV. actual possession of it, the attempt to eject him by force brings the person who makes it within the provisions of the statute against forcible entry (). If a person who has a legal right of entry upon land which is in the possession of a wrong-doer, is allowed to enter peaceably through the open door, it is still illegal for him to turn out the wrong-doer with violence (e). To constitute a forcible entry or detainer it is not necessary that anyone should be assaulted, but only that the entry or detainer should be effected with a strong show of force (f). The question as to whether the only remedy for a forcible entry is by indictment under the Statute of Ric. 2, or whether an action will lie as well, at the suit of the person in possession, has of late years been frequently before the Courts. The decisions of the judges on the point are somewhat difficult to reconcile, and the law on the subject can hardly be considered at present to be finally settled, though the balance of judicial opinion inclines to the view that an action cannot be maintained, and that a statement, in an action for trespass, that the entry was forcible, is mere matter of aggravation and not a substantive cause of action (g). Fry, J., in the course of a case decided in 1881, observes: "I do not think that such a thing as an action for forcible entry is to be found in any of the books. That is because the statute makes a forcible entry indictable" Where, however, the slightest independent wrong (such as an injury to furniture) is committed in the course of the forcible entry, damages can be recovered, even by a person whose possession was wrongful, for the statute makes a possession obtained by force unlawful, even when it is obtained by the rightful owner (i). In a case which was recently before the Irish Courts, it was held that an action could be maintained by one who had been in possession of land without title, against the true owner of the land for forcibly entering and expelling the plaintiff from the possession and taking goods (although the property of the defendant) then being on the land (k). In a still more recent case, (d) Lows v. Telford, 1 App. Cas. 414; 45 L. J. Ex. 613. (e) Edwick v. Hawkes, 18 Ch. D. 199; (f) Milner v. Maclean, 2 C. & P. 17. " (h). however, decided in 1884, Kay, J., observes that "it is not the law Chap. IV. that a rightful owner could not use force to eject a trespasser who had gained possession of his property (1). hundred for damage done to tenements by against the rioters. By 7 & 8 Geo. 4, c. 31, s. 2, it is enacted that if any church, Proceedings chapel, house, stable, &c., or any building or erection used in any trade or manufacture, or in conducting the business of any mine or any engine or machinery employed in any manufacture, or in working any mine or bridge, waggon-way, &c., or truck for conveying minerals, shall be feloniously demolished, pulled down or destroyed, wholly or in part, by any persons riotously assembled together, the inhabitants of the hundred shall, if any damage done exceeds £30, be liable (s. 8) to yield full compensation to the persons damnified by the offence, and also for any damage which may at the same time be done to any fixture, furniture, or goods in any such church, chapel, house, or buildings. Before such action can be maintained, the persons damnified, or the servant who had care of the property damaged, must within 7 days after the offence go before some neighbouring justice of the peace, having jurisdiction over the locality of the offence, and state upon oath the names of the offenders, if known, and submit to the examination of the justice touching the circumstances of the offence, and become bound by recognizance to prosecute, &c.; every such action must be commenced within 3 calendar months after the commission of the offence. The damage done must exceed £30, and the party damnified must send in a notice of claim to the high constable of the hundred, who is to exhibit such claim to two justices of the peace, who are to appoint a petty session for the purpose of hearing and determining such claim. Prima facie the owner of the surface is entitled to the surface itself and all below it, ex jure nature, and those who claim the property of the minerals below must do so by some grant or conveyance by him or from the Crown (m). The rights of a grantee of minerals, by whomsoever granted, must depend upon subject, was considered. It had before been questioned by Parke and Alderson, BB., in Harvey v. Brydges, 14 M. & W. 442; and by Cresswell, J., in Davis v. Burrell, 10 C. B. 821. (1) Scott v. Brown, supra. See Dari son v. Wilson, supra. A license given by a tenant to his landlord to eject him from the premises is void, as offending (m) Rowbotham v. Wilson, 8 H. L. Rights of property in special cases. Mines. Chap. IV. the terms of the deed of conveyance, but primâ facie, it will be presumed, if the minerals are to be enjoyed, that a power to get them was also granted or reserved as a necessary incident (n). Right to support with reference to mining. Adjacent mines. Where the surface of land belongs to one man and the minerals underneath belong to another, the rule of law is that primâ facie the right to support exists, and that the burden lies upon the owner of the minerals to show that the instrument under which he derives his rights gives him authority to destroy the surface (o). The owner of the minerals is bound to work them so as to leave sufficient support for the surface in its natural state (p), unless it can be clearly shown that, under his title, he has power to derogate from the common law right to support inherent in the owner of the surface (q). Where the owner of minerals excavates without leaving sufficient support for the surface, a right of action does not accrue to the owner of the surface, until he has suffered some actual damage (r). The Court will, however, interfere by way of injunction to prevent threatened damage (s). It is the natural right of each of the owners of adjoining mines, where neither mine is subject to any servitude to the other, to work his own mine in the manner which he deems most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine, so long as such prejudice does not arise from the negligent or malicious conduct of his neighbour (t). Where the working of mines, in however careful a manner, As (n) Rowbotham v. Wilson, supra. (0) Humfries v. Brogden, 15 Q. B. (p) Caledonian Rail. Co.v. Sprot, 2 Macq. (7) Aspen v. Seddon, L. R. 10 Ch. 394; Eadon v. Jeffcock, L. R. 7 Ex. 379; Rowbotham v. Wilson, supra. In mining leases where a right to let down the surface is given to the lessee, there is usually a covenant that he shall pay compensation for any injury done to the owner of the surface. (r) Backhouse v. Bonomi, 9 H. L. Cas. 503; 34 L. J. Q. B. 181 (in Court below); El. Bl. & El. 637; 28 L. J. Q. B. 378. (s) Hext v. Gill, supra; Hunt v. Peake, 1 Johns. 708; 29 L. J. Ch. 785. Where removal of support threatens the exist ence of a watercourse, see Elwell v. Crowther, 31 Beav. 163; 31 L. J. Ch. 763. (t) Smith v. Kenrick, 7 C. B. 515; 18 L. J. C. P. 172. has occasioned the subsidence of the land of another, although Chap. IV. not immediately adjoining, damages may be recovered in respect of the injury to buildings thereon erected or enlarged within twenty years, provided their weight did not occasion or contribute to the subsidence (u). Trespass will lie for encroaching on a mine, though the plaintiff has no property in the soil above the mine, but only a right of digging (x). copyholds. In an ordinary estate of copyhold the property of minerals is Minerals in in the lord, but the possession is in the copyholder, so that he can bring trespass against a stranger for interfering with his possession of them (y). By setting out a highway and dedicating it to the use of the public, the owner of the land only grants a right of way over it, and does not part with his property in the soil (z). The soil of a turnpike road is not vested is the trustees of the road, but remains in the persons who were entitled to it before the Act passed by which they were appointed trustees. The trustees. have only the control of the highway (a). The ordinary presumption of law as to the property in the soil of highways is thus stated by Williams, J.:-" The owner of the adjacent soil is to continue his common law right, viz., as proprietor of the road usque ad medium filum vice, and if he owns the soil on both sides he is entitled to the whole road" (b). Where the boundary of property is described as abutting upon a highway, such boundary must be taken (in the absence of evidence the other way) to extend to the middle of such highway (c). The provisions of the Highway Acts and the Metropolis Local Management Act, 18 & 19 Vict. c. 120, so far as they apply to (u) Hamer v. Knowles, 6 H. & N. 454; 30 L. J. Ex. 102. As to the working of mines under railways and canals, see Railway Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20, ss. 77 & 78. (e) Harker v. Birkbeck, 1 Wm. Bl. 482. (y) Eardley v. Granville (Earl), 3 Ch. D. 826. (z) Every v. Smith, 26 L. J. Ex. 345; Lade v. Shepherd, 2 Str. 1004. (a) Davison v. Gill, 1 East, 69. (b) Salisbury (Marquis of) v. G. N. Rail. Co., 28 L. J. C. P. at p. 54. This presumption of law applies equally to a It private as a public road. It may of (c) Reg. v. Strand Board of Works, 4 Property in the soil of highways. Chap. IV. roads or streets, are subordinate to the paramount rights reserved by the owner of the soil of the highway dedicated to the public. He may exercise all rights which are not inconsistent with the rights of passage by the public (d). Property in waste land way. The presumption is that the strip of waste land which adjoins adjoining high the highway belongs to the owner of the adjoining inclosed land, and not to the lord of the manor (e); this presumption may, however, be repelled by evidence of acts of ownership by him in respect of the waste land (f). Property in the soil of towing paths and banks of rivers. Property in the soil of non navigable rivers. Where the strip of waste land communicates with open commons or other large portions of land, the presumption is either done away with or considerably narrowed; for the evidence of ownership which applies to the larger portions applies also to the narrow strip which communicates with them (g). Where a statute gave to the navigation company of a river a power to set out towing-paths along the river, but the language left it in equal doubt whether the soil of the towing-path was to vest in the company or only the easement of the right of way for the purposes of towing, it was held that the company did not acquire a right to the soil of the towing-path, but only such a use of the soil or easement as was necessary for the purposes of navigation (). In the course of his judgment in this case, Williams, J. (i), observes, speaking of the undertakers of the navigation company, "they are in the ordinary position of trustees of a turnpike road, who, as Lord Kenyon said in Davison v. Gill (k), have only the control of the highway, and not the soil of it vested in them." The owners of land abutting on a navigable river or canal, along which a towing-path extends, have a right to make use of the towing-path for the purpose of landing or shipping goods, provided it is used in such a way as not to obstruct the navigation of the canal or the use of a path as a towing-path (1). When the lands of two riparian proprietors are separated from each other by a non-navigable river, each proprietor (d) St. Mary, Newington v. Jacobs, (e) Steel v. Prickett, 2 Stark. 463; (f) Doe v. Kemp, 2 Scott, 9. (g) Grose v. West, 7 Taunt. 39. (h) Badger v. South York. Rail. & Nav. Co., 28 L. J. Q. B. 118; 1 El. & El. 347. (i) At p. 121, 28 L. J. Q. B. (k) 1 East, 69. (1) Monmouthshire Rail. & Canal Co. v. Hill, 4 H. & N. 427; 28 L. J. Ex. 283. |
