80 EIGHTS OF OWNER OF SURFACE. 



General v. Maiiliias, that the woodwards or foresters of B walk (the 

 soil of which was in the Crown) within the limits of the Forest of Dean, 

 could not as such have a right to ^-rant to certain persons called " free 

 miners" gales or licences for working stone within B walk, and to 

 take gale I'ents and apply them to their own purposes, without account- 

 ing to the Crown. Independently of statute 1 & 2 Vict., c. 43, which 

 extinguished the right and capacities of free miners, no right could 

 ever have been established by any custom, however ancient, uniform, 

 and clear, to the exercise of the custom as now claimed by the defend- 

 ants, viz., a right in one person to enter upon the soil of another, 

 and to carry away portions of it. Such a right cannot lie estahlished 

 htj prescription, nor by assumption of a lost (jrant ; and a claim which 

 is radically bad in itself cannot be substantiated by any statutes of 

 limitation. 



The right of the owner of the surface to the support of the under- 

 ground strata, under and near to his land, is one of the ordinary natural 

 rights of property incidental to all land, and not an easement or right 

 acquired by grant or otherwise ; and the injury to this right, and not 

 the consequential damage, is the cause of action. Hence the Statute 

 of Limitations runs from the time of the act which ultimately caused 

 the damage, although actual damage did not arise till afterwards, and 

 so it was held by Lord Campbell C.J., Coleridge J., and Erie J., Wight- 

 man J., dissentienle, in Bonomi v. Baclchouse. And per Curiam: "The 

 check upon mining for the protection of the surface is for the advantage 

 of the surface, and that advantage is secured by the decision in 

 IhimpJiries v. Brogden. Tlie surface owner taking that advantage may 

 not unreasonably be held to take it with ordinary legal incidents, and, 

 among others, a liability to be barred by six years from the wrongful 

 act. In case of mining operations, Avhich are a trespass, the statute 

 runs from the trespass, though the party may have been ignorant of the 

 act done. The same rule may with equal justice apply to a surface 

 owner, notwithstanding he may have been ignorant of the violation of 

 the right to support. The right of support which the plaintiffs here 

 claim is a natural right of property to be presumed till, as in Iiowbotham 

 V. Wilson, evidence is given to rebut the presumption ; and that such 

 a right is not to be considered an easement or a servitude arising from 

 grant. But the consequence does not seem to follow, that the Statute 

 of Limitations cannot begin to run for an injury to such a right till 

 there has been an actual subsidence of the surface. With regard to the 

 authorities quoted, JVicklin v. Williams is expressly in point, and the 

 decisions relied upon to show that this is an action for consequential 

 damage complete only upon the subsidence of the surface, may be 



