owner can recover only for the actual physical damage so caused as and when it occurs. The former alternative would be inconvenient and capricious in its results; but it need not be discussed, because it is excluded by authority of the highest order. The latter is affirmed as law by equally high authority, and draws with it the result that the compensation disputed in this case cannot be allowed. To say that the surface land would sell for less because of the apprehension of future subsidence is no doubt true. To say that the depreciation in present value caused by that apprehension ought to be included as an element of compensation is, in my view, unsound. For that is asking compensation, not for physical damage which has in fact arisen, but for the present influence on the market of a fear that more such damage may occur in future. Etymological confusion lies at the root of many difficulties, and perhaps there has been in this subject something of the kind in regard to the use of the word "damage" or "damages." Be that as it may, I am unable, with the utmost respect, to agree with the opinion of the majority of the Court of Appeal. I think this appeal ought to be allowed.

Order of the Court of Appeal reversed: Order of Swinfen Eady, J., restored, with costs here and below.

Lords' Journals, December 2, 1907.

Solicitors: Fowler & Company, for Grundy, Lumb, & Grundy, Manchester; Patersons, Snow, Bloxan, & Kinder, for Wilson, Wright &Wilsons, Manchester.

Note.-Measure and elements of damages recoverable for nonnegligent interference with right of support.

The reason for limiting the scope of this note to cases in which there was no negligence in making the excavation which deprived the adjoining premises of their support is, that where there is negligence the right violated is not the same as the right which is violated where there is no negligence, so that the elements of damage, and conceivably the measure of damages, may be different. The difference may be comprehended in the statement that the cause of action in the one case is for negligence, in the other case, for nuisance.

For example, as it is generally held that the right of lateral support extends only to support for the soil in its natural state, and does not include support for the protection of buildings or other structures placed upon it, no recovery can be had for injury to buildings or other improvements where there is no negligence in making the excavation, but where there is negligence, damages are recoverable for injuries to the buildings or other improvements as well as for the injury to the soil itself. In the latter case, possibly the measure of recovery might include prospective damages.

The mode of estimating the amount of damages recoverable is dependent on the conception entertained of the right of support. If that right is in the nature of a servitude and the injury is the disturbance of that servitude, the measure of recovery may comprehend the depreciation in the market value of the property occasioned by the possibility of further damages from the same cause, as well as the depreciation occasioned by the damage which has actually occurred. On the other hand, if the right for an interference with which an action will lie is considered not as an easement, but as a right to an undisturbed enjoyment of the property in its natural condition, then no recovery for future disturbances may be had, since the cause of action therefor has not yet come into existence.

Originally, the right of support seems to have been considered as a servitude to which the adjoining or subjacent property was subject; but as it sometimes happened that the injurious effects of excavations were not experienced until a long time after the excavation had been made, it became necessary, in order to prevent the statute of limitations from being pleaded in bar of an action by the owner of the injured property, to take the position that the disturbance of the surface, and not the withdrawal of the support constituted the wrong. See Backhouse v. Bonomi (1861) 9 H. L. Cas. 503, 34 L. J. Q. B. N. S. 181, 7 Jur. N. S. 809, 4 L. T. N. S. 754, 9 Week. Rep. 769, 16 Eng. Rul. Cas. 216, 13 Mor. Min. Rep. 677. This position may be said to have been the result of the balancing, on the one side, of the inconvenience to the person making the excavation in being required to defend an action or to pay damages long after the excavation had been made, and, on the other side, of the inconvenience of requiring the landowner, under penalty of being left remediless, to bring an action within the statutory period after the excavation had been made, when the possibility of actual or further damage resulting is still within the domain of speculation. Although this view may thus be said to have been dictated by considerations of convenience, rather than to rest upon any logical basis, the English courts have deemed it necessary also to adopt its logical corollaries, that subsequent actions are maintainable to recover damages for additional disturbances, notwithstanding a previous recovery for a previous disturbance resulting from the same excavation (Darley Main Colliery Co. v. Mitchell [1886] 11 App. Cas. 127, 55 L. J. Q. B. N. S.

529, 54 L. T. N. S. 882, 51 J. P. 148; Crumbie v. Wallsend Local Bd. [1891] 1 Q. B. 503, 60 L. J. Q. B. N. S. 392, 64 L. T. N. S. 490, 55 J. P. 421); and that, in assessing damages, prospective damages arising from the risk of future subsidences must not be taken into account (WEST LEIGH COLLIERY Co. v. TUNNICLIFFE & HAMPSON).

Measure of damages generally.

The rule generally followed in the United States is that the measure of damages for the removal of lateral support is not the value of the earth which falls away (Parrott v. Chicago G. W. R. Co. (1905) 127 Iowa, 419, 103 N. W. 352; Williams v. Missouri Furnace Co. (1882) 13 Mo. App. 70; McClelland v. Schwerd (1907) 32 Pa. Super. Ct. 313), nor, ordinarily, the cost of restoring the property to its former condition, or of building a retaining wall (Moellering v. Evans (1889) 121 Ind. 195, 6 L.R.A. 449, 22 N. E. 989; Schmoe v. Cotton (1906) 167 Ind. 364, 79 N. E. 184; Orr v. Dayton & M. Traction Co. (1911) 178 Ind. 40, 48 L.R.A. (N.S.) 474, 96 N. E. 462, Ann. Cas. 1915B, 1277; Gilmore v. Driscoll (1877) 122 Mass. 199, 23 Am. Rep. 312, 14 Mor. Min. Rep. 37; McGuire v. Grant (1856) 25 N. J. L. 356, 67 Am. Dec. 49; Ulrick v. Dakota Loan & T. Co. (1891) 2 S. D. 285, 49 N. W. 1054), as in many cases this would be impossible except at a cost which would be wholly out of proportion to the actual damage (McClelland v. Schwerd (1907) 32 Pa. Super. Ct. 313); nor is it the loss of rentals therefrom (Barry v. Chicago, I. & St. L. Short Line R. Co. [1909] 149 Ill. App. 627); but the difference in the market value of the premises before and after the removal (Schroeder v. Joliet (1901) 189 Ill. 48, 52 L.R.A. 634, 59 N. E. 550; Barry v. Chicago, I. & St. L. Short Line R. Co. supra; Moellering v. Evans (1889) 121 Ind. 195, 6 L.R.A. 449, 22 N. E. 989; Schmoe v. Cotton (1906) 167 Ind. 364, 79 N. E. 184; Orr v. Dayton & M. Traction Co. (1911) 178 Ind. 40, 48 L.R.A. (N.S.) 474, 96 N. E. 462, Ann. Cas. 1915B, 1277; Richardson v. Webster City (1900) 111 Iowa, 427, 82 N. W. 920; Parrott v. Chicago G. W. R. Co. (1905) 127 Iowa, 419, 103 N. W. 352; Kopp v. Northern P. R. Co. (1889) 41 Minn. 310, 43 N. W. 73; Schultz v. Bower (1894) 57 Minn. 493, 47 Am. St. Rep. 630, 59 N. W. 631, s. c. on subsequent appeal 64 Minn. 123, 66 N. W. 139; Williams v. Missouri Furnace Co. (1882) 13 Mo. App. 70; McGuire v. Grant (1856) 25 N. J. L. 356, 67 Am. Dec. 49; Pullan v. Stallman (1903) 70 N. J. L. 10, 56 Atl. 116, 15 Am. Neg. Rep. 125; McClelland v. Schwerd (1907) 32 Pa. Super. Ct. 313; Ulrick v. Dakota Loan & T. Co. (1891) 2 S. D. 285, 49 N. W. 1054).

In McClelland v. Schwerd (1907) 32 Pa. Super. Ct. 313, it was said, apropos of the holding that the value of the soil displaced, if such value is to be computed upon the loose dirt and rock that have

fallen, is not ordinarily a reliable test of the pecuniary injury, that "possibly there might arise a case in which the loss of the soil would be so insignificant relatively as not to appreciably affect the selling or rental value of the lot or the owner's use and enjoyment of it. In such a case the market value of the lost soil, treated as a separate commodity, might be adequate compensation for the injury, but there is no natural or legal presumption, either prima facie or conclusive, that it would be such in all cases."

A similar rule has been followed in actions for damages for the removal of vertical support.

Thus in Collins v. Gleason Coal Co. (1908) 140 Iowa, 114, 18 L.R.A. (N.S.) 736, 115 N. W. 497, 118 N. W. 36, it is held that the measure of damages for injury to surface by mining operations is the difference between the value of the land immediately before the defendant commenced to remove the subjacent support and such value immediately thereafter, "lessened, if any, as a result of the mining . . . damaging the surface of said land, and the improvements of plaintiff thereon."

So also in Jackson Hill Coal & Coke Co. v. Bales (1915) Ind. -, 108 N. E. 962, the measure of damages was held to be the difference between the value of the real estate immediately before and immediately after the subsidence, rather than the cost of restoring the premises to their original condition.

Where a building is injured by reason of the removal of its subjacent support, and the injury is of a permanent character, the depreciation of its market value is the measure of damages, and not the cost of repairing it, when such cost would be greater than the diminution in value, or when the repairing of the house would be practically impossible. Piedmont & G. Creek Coal Co. v. Kearney (1911) 114 Md. 496, 79 Atl. 1013.

The measure of damages for injury to property by undermining caused by the discharge of an hydraulic tunnel, by reason of which the property cannot be used as a site for heavy buildings, to which use it is adapted, is the diminution in value, notwithstanding the cost of constructing foundation walls of extraordinary depth extending below the disturbed strata would be less than the diminution in the value of the property, as the construction of such walls would not restore the property to its natural condition. Barnett v. St. Anthony Falls Water Power Co. (1885) 33 Minn. 265, 22 N. W. 535.

But unless care is taken to limit the estimate of the present market value of the property to its value in the condition in which it actually is, apart from any depreciation occasioned by the risk of further damages, the effect will be to permit the recovery of prospective dam

ages.

This was guarded against in Schultz v. Bower (1894) 57 Minn.

493, 47 Am. St. Rep. 630, 59 N. W. 631, in which the court, regarding the wrong as "not the excavation, but the act of allowing the other's land to fall," went on to state that "hence the measure of damages is the diminution of the value of the land by reason of the falling of the soil" (as distinguished from its diminution by reason of the excavation). Upon a subsequent appeal the court, in upholding instructions as to the measure of damages, stated that they substantially incorporate the law, which is, that the jury must "exclude any depreciation in the plaintiff's land caused solely by the existence of the excavation on the defendant's land." 64 Minn. 123, 66 N. W. 139.

And in McGettigan v. Potts (1892) 149 Pa. 155, 24 Atl. 198, it was held that the measure of damages in an action for the removal of lateral support is not the difference in the value of the land before and after the infliction of the injury, but the precise and actual damage done.

In Noonan v. Pardee (1901) 200 Pa. 474, 55 L.R.A. 410, 86 Am. St. Rep. 722, 50 Atl. 255, 21 Mor. Min. Rep. 517, it was held that the measure of damages to a surface owner from removal of the support for his land by means of mining operations is the actual loss sustained to the land and buildings by reason of the cave-in, and not the difference in market value before and after the injury.

But in Ulrick v. Dakota Loan & T. Co. (1891) 2 S. D. 285, 49 N. W. 1054, the statement is made that where an excavation is made carefully and with proper regard for the rights of the adjoining owner, and injury ensues, the measure of damages is the diminution of the value of the land in consequence of such excavation.

And in Weaver v. Berwind-White Coal Min. Co. (1907) 216 Pa. 195, 65 Atl. 545, it was held that the measure of damages for permanent and irremediable injuries to land occasioned by failure to give surface support is the actual loss in the depreciation of the value thereof.

An instruction in an action for the wrongful removal of subjacent support that if the plaintiff has, since the supposed injuries occurred, been offered as much and could sell the property for as much as he paid for it, then he has not sustained any substantial damages, is flagrantly erroneous. Penn v. Taylor (1887) 24 Ill. App. 292.

The depreciation should be computed with reference to the plaintiff's property as a whole, and not with reference merely to the narrow strip along which the soil has fallen away. Parrott v. Chicago G. W. R. Co. (1905) 127 Iowa, 419, 103 N. W. 352.

It is a general rule, established by a line of decisions which need not be here cited, that an owner is entitled to support for his ground in its natural state, and does not include such support for the protection of buildings or other structures placed upon it.