ICLR: Appeal Cases/1886/Volume 11/THE DARLEY MAIN COLLIERY COMPANY APPELLANTS; ANDTHOMAS WILFRID HOWE MITCHELL RESPONDENT. - (1886) 11 App.Cas. 127

(1886) 11 App.Cas. 127

[HOUSE OF LORDS.]THE DARLEY MAIN COLLIERY COMPANY APPELLANTS; AND THOMAS WILFRID

HOWE MITCHELL RESPONDENT.

1886 Feb. 8.

LORD HALSBURY, LORD BLACKBURN, LORD BRAMWELL and LORD FITZGERALD.

Limitations, Statute of (21 Jac. c. 16) - Cause of Action - Damages, recovery of for Injury after Satisfaction forprevious Injury arising from same Act - Support - Action for Subsidence after Compensation for previousSubsidence.

Lessees of coal under the respondent's land worked the coal so as to cause a subsidence of the land andinjury to houses thereon in 1868. For the injury thus caused the lessees made compensation. They workedno more, but in 1882 a further subsidence took place causing further injury. There would have been nofurther subsidence if an adjoining owner had not worked his coal, or if the lessees had left enough supportunder the respondent's land:-

Held, affirming the decision of the Court of Appeal, Lord Blackburn dissenting, that the cause of action inrespect of the further subsidence did not arise till that subsidence occurred, and that the respondent couldmaintain an action for the injury thereby caused, although more than six years had passed since the lastworking by the lessees.

Nicklin v. Williams (10 Ex. 259) and Backhouse v. Bonomi (E. B. & E. 622; 9 H. L. C. 503) discussed. Lambv. Walker (3 Q. B. D. 389) overruled.

APPEAL from a decision of the Court of Appeal (1).

The respondent having brought an action against the appellants for damages for injuries done tohis cottages by subsidence in the ground on which they stood, caused by the improper working ofthe defendants' colliery, among other defences they set up the Statute of Limitations. At the trialbefore Hawkins J. at the Leeds Summer Assizes 1883 the following facts were proved or admitted:-

The plaintiff was the freeholder of six perches of land and three cottages thereon, in the parish ofDarfield, Yorkshire. The defendants were lessees of a seam of coal under the plaintiff's land, andworked the coal up to 1868. In consequence of that

Page 1

(1) 14 Q. B. D. 125.

(1886) 11 App.Cas. 127 Page 128working a subsidence of the land took place in 1868 causing injury to the plaintiff's cottages, inrespect of which the defendants were required to and did then execute repairs. The defendantsnever worked the coal after 1868, but in 1882 a further subsidence of the land took place, causingfurther injury to the cottages. For this injury this action was brought in December 1882.

The special jury having been discharged by consent, Hawkins J. on further consideration enteredjudgment for the defendants upon the defence of the Statute of Limitations, the plaintiff's counseladmitting that he could not distinguish the case from Lamb v. Walker (1). The Court of Appeal (BrettM.R., Bowen and Fry LJJ.) reversed this decision and entered judgment for the plaintiff fordamages to be assessed by an arbitrator (2). From this decision the defendants appealed.

During the argument of the respondent's counsel before the House a discussion took place as tothe cause of the subsidence in 1882, and in the result the following statement was agreed to inwriting between the appellants' and respondent's counsel:- That after the partial subsidence in 1868the strata remained practically quiescent until the working of the coal in the next adjoining land in1881, which working caused a "creep" and a further subsidence. That if the owner of the adjoiningland (one Cooper) had not worked his coal there would have been no further subsidence; but theappellants admit that if the coal under the respondent's land had not been taken out or if theappellants had left sufficient support under the respondent's land, then the working of the adjoiningowner would have done no harm.

1885. July 10, 13, 14. Sir R. E. Webster A.G. and Forbes Q.C. (G. Banks with them) for the appellants:-

The question is whether (as the appellants deny) the Court of Appeal were right in overruling Nicklin v.Williams (3) and Lamb v. Walker (1). When a cause of action has once developed itself the Statute ofLimitations begins to run. The excavation

(1) 3 Q. B. D. 389.

(2) 14 Q. B. D. 125.

(3) 10 Ex. 259.

(1886) 11 App.Cas. 127 Page 129and the subsidence which took place in 1868 and then caused damage were the whole cause of action. Thefurther subsidence in 1882 was not a fresh cause of action, but part of the original cause, there having beenno fresh workings. This is the principle governing Nicklin v. Williams (1) and that case was approved by the

Page 2

Queen's Bench in Backhouse v. Bonomi (2). Willes J. in delivering the judgment of the Exchequer Chamber(p. 658), says that where actual damage has been sustained "no second or fresh action can be brought forsubsequently accruing damage; all the damage consequent upon the unlawful act is in contemplation of lawsatisfied by the one judgment or accord." In this House that judgment and the reasons were approved by thejudges in attendance, and were distinctly adopted by the House (3). Lord Westbury there (p. 512) expressedapproval of Nicklin v. Williams (1), saying: "The decision of that case is, I think, beyond all question." Lamb v.Walker (4) is a direct authority for the appellants. It is not the excavation which is the wrongful act: it is theexcavation without precautionary measures. There is a fallacy in the reasoning of the Court of Appeal on thispoint. As soon as any damage occurs the cause of action is complete; the whole damage is thenrecoverable. The case of slander causing special damage is analogous. There cannot be successive actionsfor one slander whenever additional special damage occurs.

The judgment of Brett M.R. errs in speaking of "successive and independent subsidences." No man can saywhere a subsidence ends or begins: the motion is continuous. That judgment also errs in supposing that thedecision of the House of Lords in Backhouse v. Bonomi (3) is inconsistent with Nicklin v. Williams(1). The twocases of Whitehouse v. Fellowes (5) and Brunsden v. Humphrey (6) are not against the appellants, thecircumstances being quite different, and the causes of action clearly distinct.

[They also referred to Penruddock's Case (7).]

(1) 10 Ex. 259.

(2) E. B. & E. 622.

(3) 9 H. L. C. 503, 511.

(4) 3 Q. B. D. 389.

(5) 10 C. B. (N.S.) 765.

(6) 14 Q. B. D. 141.

(7) 5 Rep. 100 b.

(1886) 11 App.Cas. 127 Page 130Rigby Q.C. and C. E. Ellis for the respondent:-

Page 3

There are here two causes of action: the cause of action is not the digging, but the interference with the rightof support which causes damage. An injury has not occurred till it is known to be an injury. The wrong is theletting down the surface. Comyns' Dig. Action on the case for Nuisance (A) p. 418, citing 2 Roll. 565 l. 10,treats the case of a man "digging a pit on his land so near that my land falls into the pit," as a nuisance. InBackhouse v. Bonomi (1) Wightman J.'s view is in our favour, and there is nothing against it in the judgmentsof the other judges. In that case (p. 631) there was a special finding as to the continuance of the thrust andthe probability of future damage. Willes J. there said (p. 655) that until the decision in Nicklin v. Williams (2) itwas never supposed that digging in a man's own soil to any extent was unlawful. The passage in thejudgment of Willes J. relied upon by the appellants (3) was itself extra-judicial, as he afterwards admitted inWhitehouse v. Fellowes (4).

[LORD BRAMWELL:- What Willes J. said in Whitehouse v. Fellowes (4) was obiter; commenting upon hisown obiter observations in Backhouse v. Bonomi (3) upon the dicta in Nicklin v. Williams (2), whichthemselves were obiter.]

Between the decisions in the Exchequer Chamber and the House of Lords came Rowbotham v. Wilson (5),where Lord Wensleydale's observations shew that he recognised the principle now contended for by therespondent that till injury no action lies.

[LORD FITZGERALD referred to Devery v. Grand Canal Co. (6).]

The only question discussed or decided by the House in Backhouse v. Bonomi (7) was the question raisedby the memorandum; and there is absolutely nothing in the final decision hostile to the respondent. If the firstdamage consequential on the digging is recoverable though the digging is more than six years old, why

(1) E. B. & E. 622, 642, 645, 652, 655.

(2) 10 Ex. 259.

(3) E. B. & E. 658.

(4) 10 C. B. (N.S.) 785.

(5) 8 H. L. C. 348, 359, 364.

(6) 8 Ir. Rep. C. L. 511; 9 Ibid. 194.

(7) 9 H. L. C. 503, 511.

Page 4

(1886) 11 App.Cas. 127 Page 131is not the second? The excavation being left as it was without support is analogous to a continuing nuisance,and the law applicable thereto should be applied here; see Rosewell v. Prior (1); and Thompson v. Gibson(2).

In defamation where the words are actionable in themselves the statute runs from the speaking of the words;but where they are not actionable in themselves it runs from the damage: Saunders v. Edwards (3); Littleboyv. Wright(4). There are no decisions on slander which assist the determination of the point, though there aredicta: see Lord Townsend v. Hughes (5) per North C.J. In Fetter v. Beal (6) Lord Holt is reported (in ModernReports but not in the other reports) to have said: "If A. bring an action for words actionable in themselvesand recover damages, and afterwards by reason of the words she lose a husband, yet no action will lieafterwards for the special damage; and so if the words be actionable for the special damage which party hassuffered by reason of them, and for that damages are recovered, and after the party has another specialdamage." The appellants will rely on Clarke v. York (7) but there is no analogy, the position was altered: theexisting cause of action had passed into res judicata. The law of subjacent support is based on the sameprinciple as the law of adjacent support: Humphries v. Brogden (8).

Sir R. Webster A.G. in reply:-

Nicklin v. Williams (9) decided more than was overruled in Backhouse v. Bonomi (10), see Clarke v. York(7).The plaintiff has a right to have his land at its original height: he has no right to have it at the intermediateheight to which it was brought in 1868. There is no case in which damage without a wrongful act or omissionhas been held to give a cause of action. The plaintiff could have recovered for the subsequent damages inthe first action. It was then known to experts that a working

(1) 2 Salk. 460.

(2) 7 M. & W. 456.

(3) 1 Sid. 95; Sir T. Raym. 61.

(4) 1 Lev. 69; 1 Sid. 95.

(5) 2 Mod. 150.

(6) 1 Ld. Raym. 339, 692; 1 Salk. 11; 12 Mod. 544.

Page 5

(7) 52 L. J. (Ch.) 32.

(8) 12 Q. B. 739, 743.

(9) 10 Ex. 259.

(10) E. B. & E. 622.

(1886) 11 App.Cas. 127 Page 132by the adjoining owner might injure the plaintiff. That was an element to be estimated in calculating thedamages. To succeed, the respondent must contend that the jury ought to have been directed to excludesuch damages.

The House took time for consideration.

Feb. 8, 1886. LORD HALSBURY :-

My Lords, in this case the plaintiff, the owner of land upon the surface, has sued the lessee of certain seamsof coal below and adjacent to the plaintiff's land for having disturbed the plaintiff in the enjoyment of hisproperty by causing it to subside. The defendants before and up to the year 1868 have worked, that is to say,excavated, the seams of coal, of which they were lessees. Their excavation caused a subsidence of theground, for which they acknowledged their liability and made satisfaction. There were other subsidencesafter this, and as the case originally came before your Lordships, it was matter of inference only whetherthese subsidences were or were not in some way connected with, if not forming part of, the originalsubsidence. The parties have now by an admission at your Lordships' bar, placed the matter beyond doubt.

It has been agreed that the owner of the adjoining land worked out his coal subsequently to 1868. That if hehad not done so there would have been no further subsidence, and if the defendants' coal had not beentaken out, or if sufficient support had been left, the working of the adjoining owner would have done no harm.Under these circumstances, the question is whether the satisfaction for the past subsidence must be taken tohave been equivalent to a satisfaction for all succeeding subsidences. No one will think of disputing theproposition that for one cause of action you must recover all damages incident to it by law once and for ever.A house that has received a shock may not at once shew all the damage done to it, but it is damaged nonethe less then to the extent that it is damaged, and the fact that the damage only manifests itself later on bystages does not alter the fact that the damage is there; and so of the more complex mechanism of thehuman frame, the damage is done in a

(1886) 11 App.Cas. 127 Page 133railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness ofthe sufferer at the time; the later stages of suffering are but the manifestations of the original damage clone,and consequent upon the injury originally sustained.

Page 6

But the words "cause of action" are somewhat ambiguously used in reasoning upon this subject; what theplaintiff has a right to complain of in a Court of Law in this case is the damage to his land, and by thedamage I mean the damage which had in fact occurred, and if this is all that a plaintiff can complain of, I donot see why he may not recover toties quoties fresh damage is inflicted.

Since the decision of this House in Bonomi v. Backhouse (1) it is clear that no action would lie for theexcavation. It is not, therefore, a cause of action; that case established that it is the damage and not theexcavation which is the cause of action. I cannot understand why every new subsidence, althoughproceeding from the same original act or omission of the defendants, is not a new cause of action for whichdamages may be recovered. I cannot concur in the view that there is a breach of duty in the originalexcavation.

In Rowbotham v. Wilson (2), Cresswell J. said that the owner of the mines might have removed every atomof the minerals without being liable to an action, if the soil above had not fallen; and what is true of the firstsubsidence seems to me to be necessarily true of every subsequent subsidence. The defendant hasoriginally created a state of things which renders him responsible if damage accrues; if by the hypothesis thecause of action is the damage resulting from the defendant's act, or an omission to alter the state of thingshe has created, why may not a fresh action be brought? A man keeps a ferocious dog which bites hisneighbour; can it be contended that when the bitten man brings his action he must assess damages for allpossibility of future bites? A man stores water artificially, as in Fletcher v. Rylands (3); the water escapes andsweeps away the plaintiff's house; he rebuilds it, and the artificial reservoir continues to leak and sweeps it

(1) 9 H. L. C. 503.

(2) 8 E. & B. 123, 157.

(3) Law Rep. 3 H. L. 330.

(1886) 11 App.Cas. 127 Page 134away again. Cannot the plaintiff recover for the second house, or must he have assessed in his firstdamages the possibility of any future invasion of water flowing from the same reservoir?

With respect to the authorities the case of Nicklin v. Williams (1) was urged by the Attorney-General as anauthority upon the question now before your Lordships, by reason of some words attributed to Lord Westburyin Bonomi v. Backhouse (2). If Lord Westbury really did use the words attributed to him, it is, I think, open todoubt in what sense they are to be understood. Baron Parke in that case delivered the judgment against theplaintiffs recovering any subsequently accruing damage, because, he said, the cause of action was theoriginal injury to the right by withdrawing support. That principle is admittedly wrong, and was expressly heldto be wrong in Bonomi v. Backhouse (2), since if that had been law there could have been no answer to theplea of the Statute of Limitations in that case. It is difficult to follow the Master of the Rolls when he says itwas not necessary to overrule Nicklin v. Williams (1) by that decision. It seems to me to have been the wholepoint decided in Nicklin v. Williams (1), and how that case so decided can be an authority for anything I am ata loss to understand.

Page 7

I think the decision of this case must depend as matter of logic upon the decision of your Lordships' House inBonomi v. Backhouse (2), and I do not know that it is a very legitimate inquiry, when a principle has been laiddown by a tribunal from which there is no appeal, and which is bound by its own decisions, whether thatprinciple is upon the whole advantageous or convenient; but if such considerations were permissible, I thinkCockburn C.J. in his judgment in Lamb v. Walker (3) establishes the balance of convenience to be on theside of the law, as established by Bonomi v. Backhouse (2). I cannot logically distinguish between a first anda second, or a third, or more subsidences, and after Bonomi v. Backhouse (2) it is impossible to say that itwas wrong in any sense for the defendant to remove the coal. Cresswell J. has said, and I think rightly, thathe might remove every atom of the mineral.

(1) 10 Ex. 259.

(2) 9 H. L. C. 503, 512.

(3) 3 Q. B. D. 389.

(1886) 11 App.Cas. 127 Page 135The wrong consists, and, as it appears to me, wholly consists, in causing another man damage, and I thinkhe may recover for that damage as and when it occurs.

For these reasons, I think that the judgment appealed from should be affirmed with costs.

LORD BLACKBURN :-

My Lords, at the close of the argument I came to the conclusion that the judgment should be reversed; andprepared and circulated an opinion containing the reasons which led me to that conclusion. All three of theother noble and learned Lords who heard the argument have come to the conclusion that the judgmentshould be affirmed, and that must be the judgment of the House. I think it better to read the reasons which Ihad before written.

This is an appeal against an order of the Court of Appeal, by which it was ordered that the judgment ofHawkins J. delivered, on further consideration, on the 18th of December 1883, should be reversed, andjudgment entered for the plaintiff for damages to be assessed by an arbitrator to be agreed upon, with costs.Before this House can say whether this order is right or not, it is necessary to know what was the case onwhich Hawkins J. directed judgment, which this order reverses, to be entered for the defendants. The writwas issued on the 27th of December 1882.

There was an alternative defence that the causes of action did not, nor did any of them, first accrue to theplaintiff at any time within six years before the commencement of the action; and therefore, it lay on theplaintiff to give evidence of some cause of action subsequent to the 27th of December, 1876.

Page 8

I think it sufficiently appears in Hawkins J.'s judgment, that the defendants had worked out the seams of coalof which they were lessees as long ago as 1868, and that they had done nothing from that time. And as thedefendants seem to have proved and relied on the fact that very considerable subsidences had occurredbetween 1868 and 1871, which injured the plaintiff's premises, and that the defendants had been called uponto do and had paid for repairs rendered necessary, it is clear that the original working was such as to giverise to a cause of action as early as 1871,

(1886) 11 App.Cas. 127 Page 136and that the plaintiff had then known it. Lamb v. Walker (1) was then cited. With a view to enable theplaintiff's counsel to fully consider that authority, it was arranged that the jury should be discharged, and thatthe case should be reserved for further consideration, it being expressly admitted by the plaintiff that damagewas done by subsidence in 1868.

On further consideration, the plaintiff's counsel is stated by Hawkins J. to have admitted that judgment mustbe entered for the defendants unless Lamb v. Walker (1), which he intended to question in a Court of Appeal,was overruled.

I think it convenient here to see what was the decision in Lamb v. Walker (1), so as to see whether, while itstands unreversed, it was decisive of the case before Hawkins J. Manisty J. (at p. 391) quotes so much ofthe plaintiff's statement of claim as was material in that case. There was a first claim, on which the refereegave d., which I do not notice. I think the fifth and sixth paragraphs are in effect the same as the amendedstatement of claim in the action now at bar, and set out in the Appendix, p. 7. But the only plea in Lamb v.Walker (1) was payment into Court of 150, and the issue joined was whether that was enough. That wasreferred, and it was on the award that the question was raised. The two material findings on the award arestated at p. 392:- "2. I estimate the damage actually sustained by the plaintiff at the date of thecommencement of the action ... at 400. 3. I estimate the future damage which will be sustained by theplaintiff ... at 150." He therefore directed judgment to be entered at 400, deducting the 150 paid into Courtfrom those two sums, amounting together to 550.

The question was raised on a rule to reduce the damages, and was "whether the plaintiff was in point of lawentitled to recover the sum of 150 which the referee finds will be sustained by the plaintiff by reason of thedefendant's acts." The decision in Lamb v. Walker (1) was that he was so entitled. And I think it was rightlythought that if damages subsequent to a writ issued in 1871 could be recovered in an action on that writ, theywere included in the cause of action then existing, and consequently that decision, which was binding onHawkins J., was at that stage of the proceedings conclusive against the plaintiff.

(1) 3 Q. B. D. 389.

(1886) 11 App.Cas. 127 Page 137In Lamb v. Walker (1) Cockburn L.C.J. differed from the majority of the Court. He said: "Taking the view I doof the leading case of Backhouse v. Bonomi (2), I am unable to concur in holding that in addition to theamount to which he may be entitled for actual damage sustained through the excavation of the adjacent soilby the defendant, the plaintiff is entitled to recover in respect of prospective damage, that is to say,anticipated damage expected to occur, but which has not actually occurred and which may never arise." Heenters into elaborate reasoning to support this opinion, which I shall examine presently. I think if that opinionhad prevailed in Lamb v. Walker (1), and a judgment had been given accordingly, that decision would havebeen, not only not an authority against the plaintiff in this case, but an authority in his favour as far as thedefence of the Statute of Limitations is concerned.

Page 9

There must have been some understanding between the counsel for the plaintiff and for the defendants inthis case as to what was to be done in case the final decision on this very important question was inconformity with the opinion of Cockburn L.C.J. And I think, though I wish it had been expressly stated, it mustnow be taken that the defendant's counsel agreed that he would not, on the evidence then before the Court,ask for a verdict on any of the other defences, but would in that case consent to have the damages settled byarbitration.

Cockburn L.C.J. could not in Lamb v. Walker (1) have meant to go so far as to say that if a house had beenshaken, and was evidently going to fall, but had not yet completely fallen when the writ issued, the plaintiffcould only recover for what had already occurred, and would have to bring a fresh action when a furtherchimney fell. He has not quite sufficiently guarded himself from saying so.

In the present case, there being obscurity in the statement of the facts, it was, somewhat late in the day, but,with the assent of the House, agreed to add this further admission: "That if the owner of the adjoining land(one Cooper) had not worked his coal, there would have been no further subsidence, but the appellants(defendants) admit that if the coal under the respondent's (plaintiff's) land had not been taken out, or if theappellants

(1) 3 Q. B. D. 389.

(2) 9 H. L. C. 503.

(1886) 11 App.Cas. 127 Page 138(defendants) had left sufficient support under respondent's (plaintiff's) land, then the working of the adjoiningowner would have done no harm." I do not understand this to be an admission that the subsidence wasoccasioned by the removal by the defendants of other coal than that the removal of which occasioned thesubsidence in 1871. Such an admission would have raised a different question, and one the solution ofwhich might have required a further investigation as to the facts.

I will now proceed to consider the case exactly as if it was on appeal from Lamb v. Walker. (1)

I must first observe that Manisty J. in that case says (2): "It is a well settled rule of law that damages resultingfrom one and the same cause of action must be assessed and recovered once for all." And it is not disputedby Cockburn L.C.J. that the rule is established that "damages resulting from one and the same cause ofaction must be assessed and recovered once and for all." (3) He joins issue with Manisty J. on theapplication of this rule to cases arising from subsidence occasioned by mining so as to remove support. AndI think that this rule is established as the general rule of law. I do not think it is one of those rules of law whichdepend upon natural justice. I think it is an artificial rule of positive law introduced on the balance ofconvenience and inconvenience. I think that if it were res integra a great deal might be said against theexpediency of the rule. I know nowhere where the objections to the expediency of the rule are more clearlyand forcibly stated than by the Lord Chief Justice. (4)

But I think it was not disputed in the argument that at all events when the act complained of is one whichwould entitle the plaintiff to maintain an action, and recover, as a matter of law, at least nominal damages,

Page 10

without any proof of damage in fact, the rule is firmly established, and I think all three judges in the Courtbelow agree that the question is what was the cause of action in this case. They adopt the reasoning ofCockburn L.C.J. in Lamb v. Walker (1) that it logically follows, from Bonomi v. Backhouse (5) that there areindependent and distinct causes of action, on each fresh distinct cause of damage, though arising

(1) 3 Q. B. D. 389.

(2) 3 Q. B. D. 394.

(3) 3 Q. B. D. 403.

(4) 3 Q. B. D. 405.

(5) E. B. & E. 622.

(1886) 11 App.Cas. 127 Page 139from the same act of disturbing the soil. Fry L.J. puts this very clearly. He does not think that it is concludedby authority, and says "I think we are bound to determine this question on principle. Now with reference toprinciple it appears to me to be plain that all damages which result from one and the same cause of actionmust be recovered at one and the same time, and therefore we are driven to the inquiry What is the cause ofaction in a case of this description?" In this I completely agree, but I have not been able to agree with thereasoning by which it is sought to be made out that it logically follows, from the decision in Backhouse v.Bonomi (1) in this House, that there are fresh causes of action at each fresh subsidence arising from the olddisturbance of the strata occasioning fresh damage to the same property. I decide nothing on a questionwhich does not here arise, viz., whether, if the same person has two separate tenements, say A. on the northof the seam worked by the defendant and B. on the south of it, and damage has actually occurred to A., andhe sues for the damage done to it, he is bound to join in the action any claim which he has or hereafter mayhave as to B. Whilst the recent decision of Brunsden v. Humphrey (2), in the Court of Appeal standsunreversed (and I do not mean to cast any doubt on it) it would seem that he is not.

It is desirable to see what the case of Bonomi v. Backhouse (1) really was. The writ was issued on the 20thof May, 1856. The declaration alleged that the plaintiffs, as reversioners of certain buildings in the occupationof Parkin, were entitled to have the said messuages and buildings supported by the mines and soil"contiguous and near to and under the said messuages and buildings," and then in the usual way allegedworking by the defendant, disturbing the support, by which the walls of the said messuages were crackedand injured, and the ground on which the said messuages and buildings stood subsided. The pleas were, - 1,not guilty; 2, denial of Parkin's occupancy as tenant as alleged; 3, denial of the reversion being in theplaintiffs as alleged; 4, that the plaintiffs were not entitled to have the said messuages and buildings or eitherof them supported, to wit, by the mines, earth, and soil underground contiguous;

Page 11

(1) E. B. & E. 622.

(2) 14 Q. B. D. 141.

(1886) 11 App.Cas. 127 Page 1405, that the said alleged causes of action did not accrue within six years before this suit. The verdict wasentered for the plaintiffs, subject to a special case. One very important question raised in and decided by thatcase was as to the rights of buildings to support, as distinguished from the rights of the natural soil to thesupport; with that we are not now concerned. The arbitrator in detail stated very clearly, and, I have no doubt,very accurately, the way in which the cleety coal in the Auckland coal-field was worked. I doubt if thisaccount would be found to be applicable in most coal-fields. I think I may say that it would not in some. I donot know what is the nature of the strata in the Yorkshire coal-field where the present coal lies. But itappeared quite clear on his statement of the case that, though it was apparent in 1850, more than six yearsbefore the action, that unless steps were taken to stop the progress of the thrust then in operation, theplaintiff's houses would be injured by the thrust, yet no actual injury was sustained until 1854, less than sixyears before the action; he also found that the thrust would continue and would produce damage in future.There was also a finding at page 631, that it was possible to stop the thrust, "but the expense of so doingwould have been very great, and would on the whole have amounted to a much larger sum than the value ofthe property injured." He then proceeded to find in detail the facts on which it was to depend how the issuesshould be entered, and then proceeded as follows:- "If the verdict is to be entered for the plaintiffs upon theissues joined on the 1st, 4th, and 5th pleas, another question for the Court is, 4, whether the defendant isresponsible for all the damage which has been sustained by the plaintiffs by reason of the injuries to theirsaid messuages and buildings above described, or for any and what part of that damage, and whether he isresponsible in any and what respect for the probable future damage which may be occasioned in mannerabove described, or for the damage occasioned by the diminution in value of the said messuages andbuildings by reason of their insecure state and condition, or the injuries which will probably be hereafteroccasioned by the further progress of the thrust as above mentioned." Had this question, and moreespecially the part of it I have marked in italics, been answered, it

(1886) 11 App.Cas. 127 Page 141would have decided the question afterwards raised in Lamb v. Walker (1). But as the majority of the Queen'sBench decided that the issue on the 5th plea should be entered for the defendant, the fourth questionrequired no answer from those three judges and received none. Wightman J. does give an answer at page638, which I think, as far as it goes, is in favour of Cockburn L.C.J.'s view in Lamb v. Walker (1).

The defendants do not appear to have thought the fourth question of importance, for nothing whatever wassaid in the argument in the Exchequer Chamber about it; and though the expression in the judgmentindicates approval of Nicklin v. Williams (2), so far as regarded the principle "that no second or fresh actioncan, under such circumstances, be brought for subsequently accruing damage, all the damage consequentupon the unlawful act being in contemplation of law satisfied by the one judgment or accord" and seems infavour of the view taken by the majority in Lamb v. Walker (1), yet I do not think it can be properly said thatthe Court of Exchequer Chamber in their judgment put their minds to that question, which was not much, if atall, argued before them. Before the case was taken into this House the damages were agreed on at 500,how or on what principle we do not know; and that being so, the House had no occasion to decide anythingon that fourth question. There seems to have been no allusion to it in the argument, and I think no one of theLords makes any reference to it.

I think that Bonomi v. Backhouse (3) does decide that there is no cause of action until there is actual damagesustained, and does decide that the Court of Exchequer erred when in Nicklin v. Williams (2) they said that

Page 12

there was an injury to the right as soon as the support was rendered insufficient, though no damage hadoccurred. But I do not think that it all follows from this that the act of removing the minerals to such an extentas to make the support insufficient is an innocent act rendered wrongful by the subsequent damage. Thatwould be a great anomaly, for I think there is no other instance in our law where an action lies inconsequence of damage against a person doing

(1) 3 Q. B. D. 389.

(2) 10 Ex. 259.

(3) 9 H. L. C. 503.

(1886) 11 App.Cas. 127 Page 142an innocent act. There are many where no action lies against the doer of an improper act, unless and untildamage accrues. One is alluded to by Lord Cranworth. The cause of action against the speaker of words notactionable per se consists in the speaking of the words and the damage. It was therefore held in Littleboy v.Wright (1), on error from the Palace Court, that an inferior Court had no jurisdiction over an action for callingthe plaintiff a whore, whereby the plaintiff lost her marriage, unless both the speaking of the words and theloss of the marriage were averred and shewn to have occurred within the jurisdiction. But the cause of actionwas as much the speaking of the words as the damage. It is quite clear that if the words were spoken undersuch circumstances as to be privileged, no amount of damage could give rise to an action. So where a manbeats another's servant, no action arises to the master until there is damage by the loss of the service, but noamount of damage would give the master an action if the beating was justifiable. And if a man in breach ofthe duty to take reasonable care in the management of a horse in a public street gallops along it, no actionlies except at the instance of a person who has suffered damage. But no amount of damage will give a causeof action against the owner of the horse unless a breach of duty is shewn. And I think that there is a duty inthe owner of land on which his neighbour's land rests to respect it, and take care that he does not injure thatsupport. This is subject to many qualifications, some of which were considered in Birmingham v. Allen (2). AllI think that is really decided in Bonomi v. Backhouse (3), at least in this House, is that where there is abreach of that duty, followed by damage, there is a cause of action; and that until there is damage there is nomore cause of action for the breach of duty than there would be in a person who saw the breach of duty inthe reckless rider of a horse, but was not damaged, though in peril.

Littledale J. said in Hodsoll v. Stallebrass (4), speaking of an action by a master for beating his servant perquod servitium amisit: "It is argued that a fresh action might be brought from

(1) 1 Lev. 69.

(2) 6 Ch. D. 284.

Page 13

(3) 9 H. L. C. 503.

(4) 11 A. & E. 301.

(1886) 11 App.Cas. 127 Page 143time to time; but that is not so, the action being founded, not upon the damage only, but upon the unlawfulact and the damage. Without the special damage, this action would not be maintainable at the plaintiff's suit:A fresh action could not be brought unless there were both a new unlawful act, and fresh damage."

This I think indicates the real principle. No authority was cited on the argument against this except a dictumof North C.J. in the report of Lord Townshend v. Hughes (1), where he is reported to have said: "This is acivil action brought by the plaintiff for words spoken of him, which if they are in their own nature actionable,the jury ought to consider the damage which the party may sustain; but if a particular averment of specialdamages makes them actionable, then the jury are only to consider such damages as are already sustained,and not such as may happen in future, because for such the plaintiff may have a new action." North C.J. wasa great lawyer, and, though at the moment engaged in maintaining what seems a very bad cause, no dictumof his is to be slighted. But this, if he did say it, was utterly irrelevant, for his opinion was that the wordsspoken were actionable, without any special damage, such, in the case before him, being neither averred norproved. I cannot, therefore, attach much weight to this dictum, and it has never, I think, been acted upon. Icome, therefore to the conclusion that the opinion of the majority in Lamb v. Walker (2) was the betteropinion.

I should say that I take a very different view of Whitehouse v. Fellowes (3) from that taken by the Master ofthe Rolls. I think that was an action for maintaining a nuisance, which from time to time caused freshdamage. What Williams J. there says, is: "The true answer to this objection, as it seems to me, is that nofresh cause of action arises from each fresh damage, but that where there is not only a fresh damage, but acontinuance of the cause of damage, such continuance of the wrongful act which caused the damageconstitutes a fresh cause of action."

This was how the Court of Error in Ireland understood that case in Devery v. Grand Canal Co. (4). Sounderstanding it, and

(1) 2 Mod. 151.

(2) 3 Q. B. D. 389.

(3) 10 C. B. (N.S.) 765, 784.

(4) 9 Ir. Rep. C. L. 194.

Page 14

(1886) 11 App.Cas. 127 Page 144approving of it, Palles C.B. in that case gave judgment for the plaintiff. How that case is in any way in conflictin principle with Nicklin v. Williams (1) I am unable to perceive.

Bowen L.J. says that, "Applying the reasoning in Whitehouse v. Fellowes (2), it seems to me that there hasreally been not merely an original excavation or act done, but a continual withdrawal of support." If I couldtake that view of the facts, I should agree in the conclusion. But I cannot take that view of the facts. Oneconsequence of doing so would be that where the owner in fee of a seam of coal worked it out, and diedleaving it in this state, the heir of the land in which the worked out seam lay would be liable to an action forcontinuing a nuisance. Surely, the facts cannot be such as would produce that effect. And unless they are, Ido not think that they can make the defendants responsible on this ground.

I therefore think that the order appealed against should be reversed, and the judgment of the 18th ofDecember 1883 restored. The noble and learned Lords who heard the case have each of them come to anopposite conclusion, and the Order of the House will be in conformity with their view.

LORD BRAMWELL :-

My Lords, laying down general propositions is attended with the same danger as giving definitions. Somenecessary qualification or exception is generally omitted. Moreover, such propositions are often and justlycalled "obiter." With these dangers before my eyes, I shall nevertheless venture on some abstractpropositions.

It is a rule that when a thing directly wrongful in itself is done to a man, in itself a cause of action, he must, ifhe sues in respect of it, do so once and for all. As, if he is beaten or wounded, if he sues he must sue for allhis damage, past, present, and future, certain and contingent. He cannot maintain an action for a brokenarm, and subsequently for a broken rib, though he did not know of it when he commenced his first action. Butif he sustained two injuries from a blow, one to his person, another to his property, as, for instance, damageto a watch, there is no doubt that he could maintain two actions in respect of the

(1) 10 Ex. 259.

(2) 10 C. B. (N.S.) 765, 784.

(1886) 11 App.Cas. 127 Page 145one blow. I may apply the test I mentioned in the argument. If he became bankrupt, the right in respect of thewatch would vest in his trustee. That for damage to his person would remain in him. I have put the case of atrespass. The same would be true of an action for consequential damages. A man slandered or libelled bywords actionable in themselves must sue, if at all, for all his damage in one action. Probably, if he sustainedspecial damage, as that he lost a contract through being charged with theft, he might maintain one action for

Page 15

the actionable slander, another for the personal loss, - certainly if the case in Siderfin is right. But it is notnecessary to decide this.

I now come to the case of where the wrong is not actionable in itself, is only an injuria, but causes adamnum. In such a case it would seem that as the action was only maintainable in respect of the damage, ornot maintainable till the damage, an action should lie every time a damage accrued from the wrongful act.For example, A. says to B. that C. is a swindler, B. refuses to enter into a contract with C., C. has a cause ofaction against A.; D., who was present and heard it, also refuses to make such a contract; surely anotheraction would lie. And so one would think if B. subsequently refuses another contract. Of course, one can seethat frauds might be practised. So they may in any state of law. But I cannot see why the second actionwould not be maintainable if the second loss was traced to the speaking. And perhaps one might apply thesame test. Would not the first right of action pass to the trustees of C. if he became bankrupt? If the secondloss was after the bankrupt's discharge, it would not.

There is still another class of cases to be considered, viz., those where the act causing damage is not initself wrongful. No easier case can be taken than the above ground case of an excavation, whereby anadjoining owner's soil is let down. It cannot be said that the act of excavation is unlawful. A contract to do itcould be enforced. No injunction against it could be obtained unless injury was imminent and certain. Whatwould be the rights of the person damaged in such a case? I think the former reasoning would apply. If therewas an excavation 100 yards long, and fifty feet of the neighbouring soil fell in, the right of

(1886) 11 App.Cas. 127 Page 146action would be in respect of those fifty feet, and not only in respect of what had fallen in, but what would infuture fall in along the fifty feet. But if afterwards the other fifty feet fell in there would be a fresh cause ofaction. Surely this must be so. If ten feet at one end fell in and afterwards ten feet at the other, it would beimpossible to say that there would not be two causes of action. If the excavation was on two sides of asquare, the same consequences. The Attorney-General denied this, and was driven to do so. But suppose A.owned the adjoining property on one side, and B. that which was at right angles to it, there must then be twocauses of action.

Now apply this reasoning to the present case. There are by the admission of the parties two separate anddistinct damages caused to the plaintiff by the acts, including in that word omissions, of the defendants. Onea removal of coal and non-providing of supports, which caused a subsidence in 1868. A cause of actionaccrued then. Another cause of action is the removal of coal, including perhaps the coal which caused thefirst subsidence, but doubtless also a removal of coal extending to a greater distance, and not immediatelyunder the plaintiff's land, and the non-providing against the consequences; which, when the adjoining ownerto the defendants removed his coal, as he lawfully might (though I think that immaterial), caused a creep inthe defendants' land, which in time caused the further subsidence. I think this gives a second cause ofaction. I think, therefore, the judgment was right.

It seems to me not to matter that the subsidence was of the same spot, nor that the immediate cause of thesecond subsidence was the non-existence of coal underneath that spot. Two damages have beenoccasioned to the plaintiff, one directly and immediately by the removal of the coal under his surface: theother by that and removal of other coal, and consequent creeping and further subsidence. TheAttorney-General, as I have said, denied that there could be two causes of action if two different parts of theplaintiff's land subsided at two different times. But surely there must be. Suppose the two pieces belonged todifferent owners, as I have suggested.

Of course one can see the danger and inconvenience that will(1886) 11 App.Cas. 127 Page 147

follow. This damage accrues many years after the defendants' act or omission which has caused it. If my

Page 16

reasoning is right, many years hence there might be a further action from some further subsidence. But theinconvenience is as great the other way. For if the defendants are right, it follows that on the leastsubsidence happening, a cause of action accrues once and for all, the Statute of Limitations begins to run,and the person injured must bring his action, and claim and recover for all damage, actual, possible, orcontingent for all time.

As to the authorities, Bonomi v. Backhouse (1) seems clearly in the plaintiff's favour. Indeed I have thought oflimiting my judgment to the following remark on it. It decided that the excavation of the coal was not wrongful,and that the cause of action accrued when the damage arose. The damage now complained of arose at thelast subsidence. That subsidence was no part of or continuance of the former subsidence, nor caused by thesame cause only, but by a further cause, in this sense, that without this cause the subsidence would nothave taken place. Therefore no cause of action in respect of it arose till it happened.

LORD FITZGERALD :-

My Lords, the real, though not the formal question for your Lordships' determination is whether Lamb v.Walker (2) was correctly decided. My noble and learned friend (Lord Blackburn) rightly deals with this appealin the same light as if it was an appeal from Lamb v. Walker (2). I do not propose to follow my noble andlearned friend in his instructive examination of Lamb v. Walker (2), and Backhouse v. Bonomi(3), and hiscriticisms on those cases, but I think that we may deduce from the authorities some propositions as nowsettled in law, and applicable to the circumstances of the appeal now before your Lordships' House, and tosimilar cases:- I proceed to state those propositions though in doing so I am conscious of the danger pointedout by my noble and learned friend, Lord Bramwell.

1. That the owner of the surface has a natural and legal right to the undisturbed enjoyment ofthat surface in the absence of any binding agreement to the contrary.

(1) 9 H. L. C. 503.

(2) 3 Q. B. D. 389.

(3) 9 H. L. C. 503.

(1886) 11 App.Cas. 127 Page 1482. That the owner of the subjacent minerals may excavate and remove them to the utmostextent, but should exercise that right so as not to disturb the lawful enjoyment of the owner ofthe surface.

3. That the excavation and removal of the minerals does not, per se, constitute anyactionable invasion of the right of the owner of the surface, although subsequent events showthat no adequate supports have been left to sustain the surface.

Page 17

4. But that, when, in consequence of not leaving or providing sufficient supports, adisturbance of the surface takes place, that disturbance is an invasion of the right of the ownerof the surface, and constitutes his cause of action.

The foundation of the plaintiff's action then seems to be that although the excavations of the minerals wereacts by the defendants in the lawful enjoyment of their own property, yet when subsequently damage arosetherefrom to the plaintiff in the enjoyment of his property, the defendants became responsible.

For although the law encourages a man to the free use of his own property, yet, if in doing a lawful thing inthe enjoyment of that property he occasions damage to his neighbour which might have been avoided, hewill be answerable for that damage whenever it occurs.

Now as to the cause of action in 1868, there is no doubt that the mere excavation prior to or in 1868 waslegitimate, and not of itself alone the foundation of any right of action, but when the subsidence of that yeartook place and caused damage to the plaintiff's houses, then the defendants became liable to make goodthat loss, because though their acts were in the lawful use of their own property, yet the injuriousconsequences to the plaintiff might have been avoided. It is the disturbance then, when it arises, that is thecause of action, and not the prior legitimate acts of the owners of the minerals in the lawful enjoyment of theirown property.

But although this be true, yet still the question which arose in Lamb v. Walker (1), and which was notexpressly decided by this House in Backhouse v. Bonomi (2), remains now to be considered and finallydecided. There was a subsidence in 1868, causing special damage, giving the plaintiff a cause of action, andin

(1) 3 Q. B. D. 389.

(2) 9 H. L. C. 503.

(1886) 11 App.Cas. 127 Page 149respect of that damage he accepted compensation, which, it seems agreed, is equivalent to a recovery ofdamages in an action if such an action had then been instituted.

In 1882 a fresh and distinct subsidence took place, causing special damage to the plaintiff.

It was admitted before your Lordships, rather late in the argument, but for the purpose of better enabling yourLordships to come to a conclusion:- "That after the partial subsidence in 1868 the strata remained practicallyquiescent until the working of the coal in the next adjoining land by the owner thereof in the year 1881, whichworking caused a creep and a further subsidence." And further:- "That if the owner of the adjoining land hadnot worked his coal there would have been no further subsidence, and that if the coal under the respondent's(plaintiff's) land had not been taken out, or if the appellants (defendants) had left sufficient support under the

Page 18

respondent's (plaintiff's) land, then the working of the adjoining owner would have done no harm."

It will be observed on these admissions that the partial subsidence of 1868 had practically ceased, and that afresh creep and subsidence took place in 1882, which would not have taken place if the defendants had leftsufficient natural support under the plaintiff's land, or, we may add, had substituted adequate artificialsupport.

There can be no doubt that though there has been no act of commission by the defendants since thecompletion of the excavation of 1868, yet if there had been no subsidence causing damage to the plaintiffprior to that of 1882, the present action could be maintained; but it is alleged that as the plaintiff had acomplete cause of action in 1868, arising from the prior excavation and the subsidence of 1868, the Statuteof Limitations then commenced to operate, and has barred the present action. It was further argued that in1868 the plaintiff could and ought to have insisted on recovering once and for all any damage that mightarise prospectively from the excavation of 1868, according to the rule of law which, in order to prevent amultiplicity of actions, provides, that damages resulting from one and the same cause of action must beassessed and recovered once and for all.

(1886) 11 App.Cas. 127 Page 150That rule was applied by the majority of the Court in Lamb v. Walker (1), and is not controverted. It is notinflexible, and admits of exceptions.

We have to consider what was the cause of action in 1868, and whether the cause of action of 1882 (thecreep and subsidence of 1882), is one and the same cause of action as that of 1868. If it is so, then thedefendants are entitled to succeed on the defence of the Statute of Limitations.

This appeal represents a class of cases peculiar and exceptional, to meet which and to avoid graveinconvenience, if not injustice, our flexible common law has somewhat moulded itself. I deprecate discussingsome of the arguments addressed to us, which seemed to me to be too fine, such as for instance whetherthe original act of the defendants was "innocent," or "perfectly innocent." The question here is not whetherthe original act of the defendants was "innocent," but whether the defendants have occasioned damage tothe plaintiff without any inevitable necessity.

I am of opinion that Cockburn L.C.J. in the case of Lamb v. Walker (1), and the Court of Appeal in the casebefore us, were respectively right in resting on Backhouse v. Bonomi (2), and deducing from it a principlewhich governs the question.

Backhouse v. Bonomi (2) is not satisfactorily reported. We gather from the report in your Lordships' Housewith some difficulty what was actually decided. Mr. Manisty, in his argument in that case at your Lordships'bar, puts it thus:- "The act done was a perfectly innocent act at the time it was done; the argument on theother side is that it must be treated as having been injurious because it might afterwards become so. If theaction had been brought when the act was first done, the answer would have been that the defendant had aright to do the act, and that no damage had been occasioned." Lord Westbury, says, "I think it is abundantlyclear, both on principle and authority, that when the enjoyment of the house is interfered with by the actualoccurrence of the mischief, the cause of action then arises, and the action may then be maintained." AndLord Cranworth, adds:- "It has been supposed that the right of the party whose land is interfered with is aright to what is called the pillars or the

Page 19

(1) 3 Q. B. D. 389.

(2) 9 H. L. C. 503.

(1886) 11 App.Cas. 127 Page 151support. In truth, his right is to the ordinary enjoyment of his land, and until that ordinary enjoyment isinterfered with he has nothing of which to complain. That seems the principle on which the case ought to bedisposed of."

It seems to me that Backhouse v. Bonomi (1) did decide that the removal of the subjacent strata was an act(I will not say an innocent act) done in the legitimate exercise of ordinary ownership, which, per se, gave noright of action to the owner of the surface, and that the latter had no right of action until his enjoyment of thesurface was actually disturbed. The disturbance then constituted his right of action.

There was a complete cause of action in 1868, in respect of which compensation was given, but there was aliability to further disturbance. The defendants permitted the state of things to continue without taking anysteps to prevent the occurrence of any future injury. A fresh subsidence took place, causing a new andfurther disturbance of the plaintiff's enjoyment, which gave him a new and distinct cause of action.

If this view is correct, then it follows that the cause of action now insisted on by the plaintiff is not the samecause of action as that of 1868, but is in point of law, as it is physically, a new and independent cause ofaction arising in 1882, and to which the defence of the Statute of Limitations is not applicable.

The necessary conclusion is that Lamb v. Walker (2) was not correctly decided, and that the able reasoningof Cockburn L.C.J. in that case ought to have prevailed.

Order appealed from affirmed; and appeal dismissed with costs.

Lords' Journals 8th Feb. 1886.

Solicitors for appellants: S. B. Somerville for Baxter & Co., Doncaster.

Solicitors for respondent: Ridsdale & Son for Saunders, Nicholson, & Reeder, Wath, near Rotterdam.

(1) 9 H. L. C. 503.

(2) 3 Q. B. D. 389.

Page 20