the land. Graham v. United States, 4 Wall.; Pico v. United States, 5 id. (3.) A survey of a claim thus confirmed made by a surveyor-general of the United States is inoperative, if contested, until finally approved by the land department at Washington. (4.) Where a quantity of land in California was granted by the Mexican government within boundaries embracing a larger amount, in the possession of which larger amount the grantee was placed, he is entitled to retain possession of the entire tract until the quantity granted is segregated by the officers of the government and set apart to him, and he may maintain ejectment for the entire tract or any portion of it against parties claiming possession under the pre-emption laws of the United States. (5.) Lands claimed under Mexican grants in California are excluded from settlement under the pre-emption laws, so long as the claims of the grantees remain undetermined by the tribunals and officers of the United States. Cornwell v. Culver, 16 Cal. 429; Riley v. Heisch, 18 id. 198; Mahoney v. Van Winkle, 21 id. 552. The defendants below were held to be trespassers, and the judgment below was affirmed.

STATE COURTS AND RECEIVERS APPOINTED BY FEDERAL COURTS.

SUPREME COURT OF KANSAS-NOVEMBER 23, 1877.

ST. JOE AND DENVER CITY R. R. CO. AND BOND, Receiver, v. SMITH, County Treasurer.

I. S., a county treasurer, filed his petition in the District Court against a railroad company, and B., the receiver of said company, appointed by the Circuit Court of the United States, to recover the taxes levied upon said company for the year 1874. The petition alleged the appointment of the receiver and his possession and control of the road. Without, so far as the record discloses, the issue or service of any process, the company and receiver filed a joint answer, in which they admit that a portion of the taxes are properly chargeable against the company, and consent that judgment may be rendered against them in this action for that amount; and also allege the appointment of the receiver by the United States Circuit Court, that he is not amenable to the process of the District Court, and pray that, as to him, the suit may be dismissed. The District Court decided that it had jurisdiction, and rendered judgment against the receiver. Held, no error. II. While it may be conceded that a court appointing a receiver may draw to itself all controversies to which the receiver is a party, or which affect the property under his control, yet it does so only by direct action upon parties by way of injunction or proceedings as for contempt, and the appointment in no manner affects the ordinary jurisdiction of other tribunals.

III. An allegation, therefore, in an answer that the defendant is a receiver duly appointed by another court, raises no question as to the jurisdiction of the court in which the answer is filled.

IV. Under the general tax law the valuation of real estate is fixed in the first place by the assessor and not by the owner, and may thereafter be changed by the board of equalization at a regular meeting, of which legal and public notice is given, and by the law of 1874 the assessment and valuation of railroad property was to be the same as that of other property.

ERROR

RROR from Marshall county. The opinion states the case.

Doniphan & Reed, for plaintiffs in error.

Frank W. Love, County Attorney, and Everest & Waggener, for defendant in error.

BREWER, J. This was an action to recover certain taxes levied upon the property of the railroad company for the year 1874. And the first question presented is one of jurisdiction. It is insisted that the District Court had no jurisdiction of an action against a receiver duly appointed by the United States Circuit Court. It will be proper to notice first how the ques

tion is presented in the record. There appears a petition filed by the county treasurer and the joint answer of the railroad company and the receiver. The fact of the appointment of the receiver and his possession of the road is alleged in the petition. The record discloses no process, and for aught that is shown the appearance of the receiver was entirely voluntary. No separate plea to the jurisdiction was filed, and the only manner in which the jurisdiction of the court was challenged was by an allegation in the answer that defendant Bond was a receiver appointed by the United States Circuit Court, and as such was an officer of that court, and not subject to suit herein, and a prayer that the suit against him might be dismissed. Immediately prior to this allegation and prayer was this admission:

4. Defendants admit that, upon a proper assessment, said company would be liable and should properly pay taxes upon the amount of their sworn returns, which is admitted may be adjudged in this case, which would be the sum of $ Did the District Court under these circumstances err in exercising jurisdiction and rendering judgment against the receiver? We think not. The general proposition is unquestioned that a receiver is an officer of the court by which he is appointed, amenable to its orders and to be protected by the power of that court from any interference with the discharge of his duties. This protection is accorded in at least two ways, by punishing for contempt any such interference, or by injunction restraining suit in any other court against him. The authorities may, perhaps, not be entirely unanimous as to whether the power of restraint by injunction reaches to all suits against a receiver, and it may be a question whether, when the object of the suit is merely the establishment of a claim, and does not seek to disturb the possession or question the title or right of the receiver, the claimant may not prosecute his action in a court other than the one appointing the receiver, without danger of punishment for contempt or restraint by injunction. But into a discussion of that question we shall not enter. It will be conceded for this case that the power of the court appointing a receiver is unlimited for purposes of protection to restrain all suits, in all courts, against the receiver, and to punish as for a contempt any interference with the receiver by force or action. But it is also beyond question that a party may, by leave of the court appointing the receiver, maintain any action in any court against him. In other words, the court appointing the receiver is not thereby compelled to assume jurisdiction of all controversies to which he may become a party, but may leave their determination to any court of appropriate jurisdiction. The appointment does not ipso facto oust all other courts of their ordinary jurisdiction as to matters in which the receiver may be interested, or which affect the property placed in his hands; it simply secures to that court the power to control at its discretion all such controversies. It may assert its right to take all such controversies, or it may leave them for determination wherever the parties may bring them. The jurisdiction of other courts remains unchanged, but it may reach parties and compel them to proceed nowhere else than in its own forum. This, we think, the authorities uniformly concede. Thus in Hill v. Parker, 111 Mass. 508, it is said that, "when the action is brought without applying for such leave, the possession of the receiver is not necessarily a valid defense at law, and the Court of

Chancery, if applied to for an injunction, may, in its discretion, allow the action to proceed to judgment and to be defended by the receiver." Again, in Kinney v. Crocker, 18 Wis. 74, "in such cases it (the court appointing the receiver) will sometimes punish as for a contempt, any attempt to disturb the possession of its officer; it will sometimes restrain suits at law and draw to itself all disputed claims in respect to the subjectmatter; and sometimes it will allow the suits at law to proceed. But in all these cases it is not a question of jurisdiction in the courts of law, but only a question whether equity will exercise its own acknowledged jurisdiction of restraining suits at law under some circumstances, and itself dispose of the matter involved." In Blumenthal v. Brainard, 38 Vt. 407," a Court of Chancery will protect a person acting under its process or authority, in the execution of a decree or decretal order, against suits at law, and will compel parties to apply to that court for relief. This protection is accorded by that court to its officers only on their own application, and is granted by the chancellor in the exercise of his discretion, and it is to be presumed that it would be granted in any necessary or proper case for such relief. But we think that the mere fact that the defendants were acting as receivers under the appointment of the Court of Chancery cannot be recognized as a defense to a suit at law for a breach of any obligation or duty which was fairly and voluntarily assumed by them in matters of business, conducted or carried on by them while acting as such receivers." In the case of The Bank v. Risley, 19 N. Y. 369, it was decided that "a person having a superior legal title or lien ought, it seems, to obtain the leave of a court of equity, before attempting to disturb the possession of a receiver. But the question is one of contempt purely, and does not affect the legal right." And in Aston v. Heron, 2 Mylne & Keen, 390, "if the misconduct of an officer of the court in executing its orders becomes the subject of civil proceedings before another tribunal, the court may, in its discretion, either itself take cognizance of the complaint, or may leave the matter to be dealt with upon such proceedings." See, also, Paige v. Smith, 99 Mass. 395; Allen v. R. R. Co., 42 Iowa, 683; 2 Southern Law Review (N. S.), p. 576. It is evident from these authorities that the question always is not one of jurisdiction but of contempt, that the ordinary jurisdiction of other courts is in no manner taken away or affected by the appointment of a receiver, that while the court making the appointment may draw to itself all controversies to which the receiver is a party, it does so by acting directly upon the parties, and not by challenging the jurisdiction of the other tribunals, that while it may so draw to itself all such controversies, it is not compelled to do so, and that not doing so in any particular case, the mere fact of the appointment constitutes no plea to the jurisdiction. Applying these principles to the case at bar, and can there be any doubt of the jurisdiction of the District Court? The county treasurer brings his action in that court against the receiver; whether he first obtained leave of the Circuit Court, whose officer the receiver was, to bring this action in the District Court is not shown. It is nowhere alleged or denied that such leave was asked and obtained. It is conceded that the Circuit Court, if no such leave was granted, could have restrained the treasurer from prosecuting the action or punished him for contempt. Nothing of this kiud was, so far as is shown by the record, ever applied for by the receiver, or, if applied

for, was refused by the Circuit Court. "It is to be presumed," says the Supreme Court of Vermont, "that it (the protection) would be granted in any necessary or proper case for such relief." So it is to be presumed here that if the Circuit Court in its discretion deemed it best to draw to itself this controversy, it would have done so. Not having done so it must be presumed that it deemed it wise to leave the matter for determination to the tribunal in which it was pending. And in this ruling we think the learned Justice of the Circuit Court exhibited that clear sense of justice and propriety which has made his administration of the law in that court an honor to himself and a credit to the bench, for it seems to us eminently wise that questions of taxation should be so far as possible left to the determination of the tribunals of the State which imposes the tax. Power in the State to tax the property or securities of the United States is denied, because the power to tax involves, it is said, the power to destroy. From the same proposition flows the propriety of leaving to the State tribunals questions of the validity and extent of State taxes. And we can but think that considerations of this nature prevented the drawing to itself by the Circuit Court of the question of taxation involved in this action. Further, the appearance of the receiver seems to have been voluntary. Can a party come voluntarily into court and then question its jurisdiction of his person? And again he admits the validity of the tax up to a certain amount, and consents that judgment may be rendered in this action against him for such amount. Can a party against whom an action is pending come voluntarily into court, admit that part of the claim is due, consent that judgment may be rendered against him for that amount, and at the same time restrict the jurisdiction off the court to inquire and determine as to the validity of the entire claim? It seems to us most clearly not. The District Court had jurisdiction, and it did not err in rendering judgment by reason of any lack of jurisdiction. The other question, that of the validity of the tax, seems to be settled by the decision in the case of the Kansas Pacific Railroad Co. v. Wyandotte Co., 16 Kans. 587, or at any rate controlled by the views expressed in the opinion in that case. The objections to the validity of this tax are that the assessors did not accept the valuation returned by the company, and that the board of equalization raised such valuation without any personal notice to the company. Neither of these objections is well taken. The property in this case was real property, in that personal. The distinction between the manner of assessing the two kinds of property was pointed out in that opinion. The valuation of personal property as returned by the owner is conclusive until corrected by proceedings before the county clerk, or commissioners, of which the owner must receive notice, while the valuation of real estate is fixed in the first place by the assessor, and may be changed by the board of equalization at a regular meeting of which public notice has been duly given. It is conceded that such notice was given. The act of 1874 provides that railroad property "shall be treated in all respects in regard to assessment and equalization the same as other property belonging to individuals." Laws 1874, p. 149, § 7. This provision seemed to us decisive of the question in that case, and it must be held as equally controlling here. The tax appears to be valid and the judgment must be affirmed.

All the justices concurring.

LIABILITY FOR ACTS IMPAIRING LATERAL SUPPORT.

ENGLISH COURT OF APPEAL, JUNE 26, 1877.

MAYOR OF BIRMINGHAM V. ALLEN (37 L. T. Rep. [N. S.] 207).

When, by reason of the working out of the mines under lands lying between the lands of A and those of B, A cannot work the mines under his lands without causing a subsidence of B's lands and buildings erected thereon, B cannot restrain A from working his mines up to his own boundary if the intervening land would, had it remained in its natural state, have sufficed to support B's lands and buildings.

THIS

IIS was an appeal from a decision of the Master of the Rolls. The facts of the case were as follows:

The Birmingham and Staffordshire Gas-light Company were incorporated by act of Parliament, by which, and by various subsequent acts, they were empowered to make and supply gas in the borough and neighborhood of Birmingham, and to acquire and carry on gasworks for that purpose. By the Birmingham Gas act, 1875, the plaintiffs, the Corporation of Birmingham, acquired the gasworks of the company, and all the powers and rights of the company.

In 1824 the company had purchased from Henry Bell a portion of an estate situate at Swan village, with the mines and minerals thereunder, and on this land the company from time to time erected retorthouses and works. Some of these works had been erected more than twenty years before the commencement of the present action. The north-west side of this land was bounded by the Birmingham canal, on the other side of which was the Swan Farm colliery, which the defendants purchased in 1872.

Under and near the Swan Village Gasworks there were four seams of coal, varying in thickness and depth from the surface, and all dipping toward the west. These four seams were known as the Brooch coal, the Thick coal, the Heathen coal, and the New Mine coal. In 1834, by an exchange effected between the company and the representatives of Henry Bell, the Thick coal lying under that part of the company's lands situate between their works and the canal was conveyed to Messrs. Bagnall, who covenanted to work out such coal within eighteen months. The workings from the defendants' colliery in the Brooch coal extended near to the plaintiffs' boundary, but were discontinued in March, 1873, before reaching the bound

ary. The workings from the defendants' colliery in the Thick coal also extended near to the plaintiffs' boundary, but were discontinued in January, 1874, before reaching the boundary.

The statement of claim alleged that slight subsidences in the soil of the plaintiffs' land and cracks in the buildings thereon were caused by these workings in the Brooch and Thick coal, but that the workings were stopped in time to prevent more serious damage. It also alleged that the defendants were now working the New Mine coal in the direction of the plaintiffs' land; that this seam was being continuously worked, and that, owing to these workings and to the previous removal of the Brooch and Thick coal, subsidence of the soil of the plaintiffs' land was likely to result, and had, in fact, already commenced; and that, if the defendants continued the workings toward the plaintiffs' land, they would withdraw the support of the adjacent strata necessary for the enjoyment and use of the plaintiffs' land, and would cause considerable sub

sidence to the same and irreparable injury to the gasworks and retorts; and also, that the defendants' workings would cause a subsidence of the plaintiffs' land, even if there were no buildings thereon; and the plaintiffs prayed for an injunction to restrain the defendants from working the mines or minerals lying near to the plaintiffs' land in such a manner as to cause subsidence of the surface of the plaintiffs' land, and for other relief.

In their statement of defense the defendants asserted that the alleged subsidences, if any such had taken place, and the alleged injury to the plaintiffs gasworks, if there had been any, were attributable partly to the Thick coal under the intermediate land between the gasworks and the canal having been worked out by Messrs. Bagnall in pursuance of their covenant, and partly to the erection of some of the plaintiffs' buildings within twenty years before the commencement of the action, and partly to the withdrawal, with the plaintiffs' concurrence, of water from the Thick coal measures of the defendants' colliery, which the defendants alleged had, by being allowed to accumulate there, afforded considerable support to the land above.

The case was tried before the Master of the Rolls. who delivered this opinion:

JESSEL, M. R. I am of opinion that the plaintiffs' case entirely fails. We have had a most careful and, I think, a most exhaustive investigation into the facts, and, as far as I am concerned, I have no doubt upon any of the facts necessary to be decided. I think it is plain that if the land adjoining the plaintiffs' land had not been undermined, the defendants might work the New Mine seam as well as the Thick coal seam, second working, up to their boundary, without injury to the plaintiffs' lands.

[The evidence is here considered at length.]

Now, having so far considered the facts, let me consider the law. As I understand, the law was settled by the House of Lords, confirming the decision of the Exchequer Chamber, in the case of Bonomi v. Backhouse, 4 L. T. Rep. (N. S.) 754; 9 H. of L. Cas. 503, that every land-owner in the kingdom has a right to the support of his land in its natural state. It is not an easement, it is a right of property. That being so, if the plaintiffs' land had been in its natural state, no doubt the defendants must not do any thing to let that land slip or go down or subside. If they were doing an act which it could be proved to me by satisfactory experts' evidence would necessarily have that effect, I have no doubt this court would interfere by injunc tion on the ground upon which it always interferes, namely, to prevent irreparable damage when the damage is only threatened. Of course, they must have a much clearer and much stronger case to call for the interference of this court by injunction where the damage is merely threatened and no damage has actually occurred than when some damage has actually occurred; because in the one case you have no facts to go by, but only opinion, and in the other case you have actual facts to go by. If some damage has occurred, it makes it manifest and certain that further damage will occur by reason of the prosecution of the works. Now, in this case, if it stands, it will merely stand on opinion evidence; and, as I said before, opinion would be sufficient ground for interference if all the experts agreed and the court were satisfied that damage had occurred; and I think, when I compare the evidence of these various experts, I must take it

for this purpose, as above stated, that if the defendants work up to within fifteen yards of their boundary in their New Mine coal, damage will accrue, and serious damage will accrue, to the plaintiffs' buildings. But the question I have to decide is, whether in law that entitles them to an injunction? Now, I think it does not. In this case, it is true that they acquired the mineral area, and acquired some of the land after the Thick coal had been worked out, and not before. But for the present purpose I leave out of consideration the fact of their ownership of any thing, and I will treat the case as if the portions which they possess-the minerals under and the portion where the Thick coal has been extracted-did not belong to them. Now it appears on the evidence, and, as I say, is the result of the evidence, that if that Thick coal had not been extracted from under these portions of land, the intended operations of the defendants would certainly not cause any substantial injury. But it is said that, inasmuch as these operations have occurred in what I will call the intervening ground, and have thereby weakened the support, it will entitle the plaintiffs to prevent the owners of the land on the other side of this intervening land from working their mines in the way they could otherwise have worked them. But the first question one asks is, why? Why should the act of the intervening owner- that is, the owner of the intermediate land-deprive other men of their rights to their mines? It strikes one at once as a most extraordinary proposition. The act of the intervening owner for this purpose is rightful as regards the mine owners whose mines are asked to be confiscated-for that is what it comes to. For if they cannot work them, they are virtually confiscated. The plaintiffs ask for the confiscation of the property, not because the intervening owner has done any wrongfor he only worked his mines, and when he worked them he occasioned no injury to the persons who owned the property on the other side - but it is said that, inasmuch as he has taken out his coal first, the defendants are deprived of the right of getting their mines. I say it is a startling proposition, and one which appears to me so unfounded in reason that I should be very loth indeed to believe it was founded in law. Now, what is the right of the adjoining owner? As I said before, it is a right to the support of his land in its natural state. Support by whom? The judges have said, support by his neighbor. What does that mean? Who is his neighbor? Mr. Chitty wanted to extend his neighbor to all England, and said: "I do not care who they are; all the land-owners in England, however distant, are my neighbors for this purpose, if their operations do in any remote degree injure my land." But surely that cannot be the meaning of it. The neighboring owner for this purpose must be the owner of that portion of the land-it may be a wider or a narrower strip of land - the existence of which, in its natural state, is necessary for the support of my land. That is my neighbor for that purpose; as long as that land remains in its natural state and it supports my land, I have no right beyond it, and, therefore, it seems to me that that is my neighbor for this purpose. There might be land of so solid a character, consisting of solid stone, that a foot of it would be enough to support the land. There might be other land so friable and of such an unsolid character that you would want a quarter of a mile of it, but, whatever it is, as long as you have got enough land on your boundary which, left untouched, will support

your land, you have got your neighbor, and you have got your neighbor's land, to whose support you are entitled. Beyond that it would appear to me that you have no rights. Well, that being so, it is clear upon the evidence that the intervening portion of land was sufficient in its natural state for the support of the plaintiffs' land. Therefore, it appears to me that the plaintiffs have no right as against the land-owners on the other side of that intervening space, and that they acquire no right, whatever the owner of the intervening land 'may have done. If the act of the intervening owner has been such as to take away the support to which the first land-owner who complains is entitled, then, for whatever damage occurs from the act which he has done, the first owner may have an action, but an action against the intervening owner, not an action against the owner on the other side, and it appears to me that it would be really a most extraordinary result that a man upon whom no responsibility whatever originally rested, who was under no liability whatever to support the plaintiffs' land, should have that liability thrown upon him without any default of his own, without any misconduct or any misfeasance on his part. I cannot believe that any such law exists, or ever will exist. It appears to me, therefore, that the plaintiffs are not entitled to damages for the acts of the defendants, and that the only order I ought to make is to dismiss the action with costs. From this decision the plaintiffs appealed.

On the hearing of the appeal, the facts, as found by the Master of the Rolls, were admitted.

Chitty, Q. C., and Beale, for the appellants, cited Gale on Easements (4th ed.), 337: Bonomi v. Backhouse, E. B. & E. 622, 646; and on appeal, 4 L. T. Rep. (N. S.) 754; 9 H. of L. Cas. 503; Brown v. Robins, 4 H. & N. 186; Wilson v. Waddell, L. Rep., 4 App. Cas. 59. [BAGGALLAY, L. J., referred to Hunt v. Peake, Johns. 705.]

Southgate, Q. C., Ince, Q. C., and Speed, for the respondents, cited Partridge v. Scott, 3 M. & W. 220; Solomon v. The Vintners' Co., 4 H. & N. 585; Stroyan v. Knowles, 6 id. 454.

JAMES, L. J. I am of opinion that the judgment of the Master of the Rolls in this case ought to be affirmed. It has been conceded in the course of the argument that what the plaintiffs claim is, at all events, in fact, whatever it may be in principle, an extension of the liability of mine owners beyond any thing for which there is an express authority in any decided case, that is to say, an extension of such liability to a case in which the owner of the mines is not the adjoining owner de facto to the person whose property is alleged to have been injured; and it is also conceded, for the purposes of the argument and upon the facts of the case, that if the whole of the intervening land, whosoever it had belonged to, or may belong to now, had been left in a state of nature, there would have been in that state of nature a sufficient support for the land of the plaintiffa so as not to have imposed any burden upon the defendants, or to have caused what the Master of the Rolls has called a confiscation of the defendants' mineral property. I agree with the Master of the Rolls that it seems a very startling thing to say that a man who has got a property in valuable mines can be deprived of those valuable mines because someone else, between him and somebody else, a third person, has been doing something with his property Whether you call it an easement, or a natural right

incident to property, or a right of property, it seems to me that those are only different modes of expressing the origin of the right, and do not express any difference in the right itself. Whether you use those terms or not, there must always be the idea and the substance of a dominant and servient tenement, and it does seem to me rather startling to find that the servient tenement can have its servitude or obligation increased by the act of the owner of the dominant tenement, or by the act of a third person intervening between the owners of the dominant and servient tenements. In all the cases the terms "neighboring" and "neighbor" have always been used, and I think that not immaterial. Whether as the right of the adjacent owner or of a subjacent owner, it has always been considered as the right of a man against his neighbor. Those are the terms which are always used in the cases. As the Master of the Rolls in this case has pointed out, it does not mean necessarily that he is to be the owner of a mere little slip of land. If the adjacent owner is only the owner of a small thread or strip of land not affording support, that, of course, would not be neighboring land within the meaning of the rule, and he has, therefore, endeavored to define, and I think he has succeeded in defining, what adjacency and what neighborhood means in these cases. He has said, using a very felicitous expression, that that is the adjacent land, that that is the neighboring property, which, in extent, would, in the natural state of things, have afforded the requisite support to the dominant tenement. I see no reason to dissent from that; there certainly is no authority which would entitle me to dissent from that proposition, and I cannot, upon principle, find any reason for extending the liability to an owner of some land beyond the soil which is so described. It appears to me really that if that be not so, and if the rights were to be determined exactly as the thing stands, if the question is to be tried the moment the alleged damage is done or apprehended, then there is no distinction in principle, whether the intermediate acts which have changed the natural position of the properties are due to the plaintiff himself or to somebody else, because, if he has lawfully worked his mines, he would say," I have done no wrong. I have done nothing that I was not lawfully entitled to do; I have worked out the mines under my own land as far as I might lawfully do so, and, having done that, I have now a cavity under my land, and I warn you, my neighbor, that you must not follow my example and work your mines, because if you work your mines in addition to my working my mines, you will let my house down over my mines, or the surface from which I have removed my support," throwing the burden entirely on him. It seems to me that that would be included in the result if it were to be tried at the time the thing was done. And that is exactly what we have authority against, because in the case in the Court of Exchequer, of Partridge v. Scott, 3 M. & W. 220, as it appears to me, we have a direct authority for saying that where a man has himself diminished the subjacent support of his own land he has no right of action or complaint against his neighbor, whose acts, by reason of that previous weakening, have caused subsidence of the plaintiffs' soil. That we have authority for. Well, then, it appears to me, that both upon principle and upon authority, we must hold that if the plaintiffs themselves had caused the subsidence they could not have succeeded. Upon the same principle it appears to me to follow, as

I have pointed out, that if somebody, not the plaintiff, and if somebody, not the defendant, has intervened and destroyed that which was the natural and legitimate support of the plaintiffs' property, that is to say, that portion of the neighboring land which, in a state of nature, did exist for the purposes of support, then that nothing further would arise to the prejudice of the owner of the further land than would have arisen in the case of the plaintiffs doing it themselves. I am of opinion, therefore, that the judgment of the Master of the Rolls is right, and must be sustained.

BAGGALLAY, L. J. This appeal has been argued, and, I think, conveniently argued, upon certain admissions or assumptions, which constitute the limit and scope of the pleadings. According to the pleadings, the plaintiffs' land consists of five several properties adjacent to each other, which need not be particularly alluded to, and an injunction is asked to restrain working by the defendants in such a way as to injure by subsidence or otherwise, any portion of those five several properties; but the case has now been limited to the consideration of the intervening land, and to the injury which is anticipated as likely to happen to the retort houses upon that land on the east of the intervening strip. It is admitted that the conclusions at which the Master of the Rolls arrived upon the facts of the case should, for the purpose of argument, be treated as conclusive. One of those conclusions of fact was, that if the land intervening between the plaintiffs' land and the land of the defendants had remained in its natural state, the defendants might have worked up to their boundary without doing any injury at all to the plaintiffs' land. Another of the conclusions of fact was that, assuming the lands to be as they are at present, then the defendants cannot work nearer than within fifteen yards of the mineral boundary between the two properties without causing a subsidence; and a third admission is this-and I think it is an important one- - that the support of the retort houses has not been in any way appreciably diminished by the work of the plaintiffs themselves under their land. In that view of the case the suggested injury is that, by the working in the coal measures of the defendants, and by means of the primary subsidence or falling in of the lands between the defendants' land and the plaintiffs' land, which lands are also for the purpose of argument assumed to have belonged to third parties, the anticipated damage is from the working in the coal measures of the defendants causing subsidence in those intervening lands, and by reason of that subsidence occasioning injury also to the plaintiffs' lands. Now, it really appears to me that when once you have arrived at those conclusions and admissions of facts, you have a case on which there can be no possible question. It seems to me to be quite contrary to all principle and authority to say that, by reason of the working by the defendants upon lands which are not adjoining lands to the plaintiffs' lands—which, upon the assumption, they are not in the present case-1 -there can be a right of action against the defendants. I entirely concur in the expression used by the Lord Justice, that when once we arrive at those conclusions on the subject, there is no case at all made by these plaintiffs.

BRETT, L. J. It appears to me strange, but I believe it to be the truth, that there is no authority on the particular point that we have to determine, and which has, therefore, to be determined for the first time in