the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. There is, no matter how rapid the process of subtraction or addition, no detachment of earth from the one side and deposit of the same upon the other. The only thing which distinguishes this river from other streams, in the matter of accretion, is in the rapidity of the change caused by the velocity of the current; and this in itself, in the very nature of things, works no change in the principle underlying the rule of law in respect thereto.

"Our conclusions are that, notwithstanding the rapidity of the changes in the course of the channel, and the washing from the one side and on to the other, the law of accretion controls on the Missouri River, as elsewhere; and that not only in respect to the rights of individual land-owners, but also in respect to the boundary lines between States. The boundary, therefore, between Iowa and Nebraska is a varying line, so far as affected by these changes of diminution and accretion in the mere washing of the waters of the stream."

The same contention was made in the case of Denny vs. Cotton, 3 Tex. Civ. App., 634, 22 S. W., 122. The land, in this instance, was on the bank of the Rio Grande, and the court says:

"The facts show that the Rio Grande is subject to annual rises that occur in the spring and summer of each year, and that continue for two or three months; that during the stage of high water it is a violent, swift, and turbid stream; that the bank of the river on the south side, in the Republic of Mexico, opposite the land in controversy, is higher than on the north side of the river. That the force of the current strikes the south bank, and that during the period in which the accretion has been going on, as shown to exist in this case, the bank during each rise would cave in and wash away, and the channel of the river would move toward the south after each rise, and land would form on the north side; that that formation and change were noticed and discerned after each rise; some years the changes resulting from the rises in the river were greater than at other years. And that occasionally the progress and change made by the force of the current could be noticed while it was going on. But the evidence, as a whole, shows that the general effect produced by these annual rises in the river during the period 1858 to 1887 was the cause of the accretion and addition to the soil on the north side of the river, and was not the result of sudden changes."

On the authority of the case of Nebraska vs. Iowa, supra, the court decides that the gain is an accretion and belongs to the adjacent proprietor, in spite of the unusual character of the stream and of the changes to which it is subject.

If a riparian proprietor's land is washed away by the water

and afterward land is re-formed within his previous boundaries but unconnected with the shore, he has no right to such new land."

The slow and gradual recession of the water from the land by which it is left dry is called in law, "reliction" and is regulated by the same principles as alluvion; the receding of the water must be slow and imperceptible. This, of course, would include both the sinking and the drying up of the water, or the raising of the land by slow geologic processes such as are to-day in progress in certain places.

Islands which form in navigable waters belong to the public; for the adjacent proprietor only owns to the high-water mark. In non-navigable waters, where the adjacent proprietor owns the land to the thread of the stream, the island belongs to the proprietor on whose land it is found. If it is located on both sides of the former thread of the stream it belongs to both proprietors, the division line being that occupied previously by the thread of the stream. If a sudden change (called "avulsion") occurs in the course of the stream by which a portion of the land is cut off, as where a river cuts across an "ox-bow," the title to the part cut off is not changed.

It is stated that the reason for the allowance of the right of accretion is an award to the shore owner as a compensation for the danger to which he is exposed of having his land washed away by the water ; but probably the real reason is to be found in considerations of convenience and public policy.

The United States Supreme Court, in New Orleans vs. United States, 10 Peters, 662 (717), says:

"The question is well settled at common law, that the person whose land is bounded by a stream of water, which changes its course gradually by alluvial formations shall still hold by the same boundary including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded, is subject to loss, by the same means which may add to his territory: and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain."

But soil or alluvion is not the only thing transported from

6 Wallace vs. Driver, 61 Ark., 429 (432); St. Louis vs. Rutz, 138 U. S., 226 (245); Wells vs. Bailey, 55 Conn., 292.

7 Tiedeman, "Real Property," sec. 687; Tiffany, "Real Property," p. 1038, Washburn, 'Real Property," secs. 1882, 1883, Mulrey vs. Norton, 100 N. Y., 424.

8 Banks vs. Ogden, 2 Wallace, 57; Lovingston vs. St. Clair Co., 64 Ill., 54, 23 Wallace, 68; Delachaise vs. Maginness, 44 La. Ann., 1,043.

9

one place and lodged on the land of another by water. This often happens to logs and timber. In a New York case logs were carried by a flood and lodged on the land of another person. It was decided that the owner of the logs might elect to abandon them, in which case he was not liable and they became the property of the party on whose land they were thrown; or the owner might reclaim them, and take them away, in which case, however, he is liable for the damages occasioned by the logs to the land. In a Canadian case 10 the defendants gathered stones and other material collected about a culvert for the purpose of repairing the same, but before such material could be used, a violent storm arose, and washed the stones, etc., into a raceway belonging to the plaintiffs. It was held that the defendants were not liable for any damages occasioned by such material being carried into the raceway. The elements carried the stones on plaintiff's property and did thereby the damage complained of; and it was not incumbent on the defendants to remove the stones, nor were they liable for any damages occasioned by the same.

9 Sheldon vs. Sherman, 42 N. Y., 484.

10 Snook et al. vs. Town Council of Brookfield, 14 Upper Canada, Q. B., 255.

XX

Further miscellaneous instances of the application of geological principles and processes in law; lateral and sub-adjacent support; asphalt; gases in mines, - ventilation; mining partnership; "salting."

A

LATERAL AND SUB-ADJACENT SUPPORT

NOTHER branch of real estate law which directly deals with geologic features and is liable to demand attention from engineers and geologists is the right of a landowner to have his surface and the strata beneath it supported as they are originally in the state of nature by the strata adjacent to or beneath his property. This in law is termed, "right of lateral and subadjacent support."

The general rule is that the landowner has an absolute right to have his land, in its natural state, supported by the adjacent land. This is not an easement, but is an incident annexed to the soil, and passes with the land. Consequently, the owner of the land cannot excavate it so as to deprive the adjacent land of its proper support. The right of lateral support only extends to land in its natural condition, and not when burdened with buildings. Right of lateral support for burdened land can only be gained in the United States by a grant, express or implied. Such grant is implied where land partly covered by a building is severed by sale. The part of the land carrying the building possesses an implied grant of the right of lateral support in the soil of the other portion of original tract. Also where land is sold for the purpose of locating valuable buildings thereon, a grant of the right of lateral support will be implied. The right of lateral support does not extend to ground located for hydraulic mining. Such a case arose in Hendricks vs. Spring Valley, etc., Co., 58 Calif., 190, in which the defendant, working a "deep digging" by the hydraulic process, worked so near the line that some gravel caved from the plaintiff's land onto the defendant's land and was washed away with the other gravel. The court says:

"The question in the case is, whether the doctrine of lateral support applies to cases like the present. We think not. The very purpose of locating the ground both on the part of the plaintiff and the defendant was to tear it down and wash it away. Its only value consisted in the gold it contained. To apply the doctrine contended for by the appellant (right of lateral support) to ground of this character, would to a great extent defeat the very purpose for which it was located. Defendant would be liable for the amount of gold taken from the gravel that fell from the plaintiff's claim, but for the fact that its value was less than the necessary cost of extracting it."

Besides the right to lateral support a landowner has a right of vertical or sub-adjacent support for his surface. This is chiefly of importance in mining operations when the rights in the surface have been severed from the subsurface rights, and the different strata of mineral, etc., beneath the surface have become vested in different persons from those that own the surface. The general rule of law is that the surface proprietor has the right to the support of his land in its natural condition by the strata beneath, and that the proprietor of the subterranean strata must so work his mineral deposit as to leave sufficient support, either natural or artificial, to retain the land above undisturbed. This is true if all the minerals beneath the surface have been granted to other parties.

An implied right of support to the surface passes therewith, or is retained therefor whenever such a grant is made. In order to deprive the surface proprietor of this implied right of subadjacent support, it is necessary that there should be express provision or words in the grant itself necessarily having such effect.2

In an English case 3 it was held that the owner of land has no right to the support of subterranean water, and that, although an adjacent owner, by making an excavation, drains away subterranean water so that a subsidence of the surface is caused

1 Victor, etc., Co. vs. Morning, etc., Co., 50 Mo. App., 525.

2 Yandes vs. Wright, 66 Ind., 319, 32 Am. Rep., 109; Western Indiana Coal Co. vs. Brown, 74 N. E., 1027; Livingston vs. Moingona Coal Co., 49 Iowa, 369, 31 Am. Rep., 150; Michle vs. Douglass, 75 Iowa, 78, 39 N. W., 198; Erickson vs. Michigan, etc., Co., 50 Mich., 604, 16 N. W., 161; Lords Exrs. vs. Corban, etc., Co., 38 N. J., Eq. (11 Stew.), 452; Ryckman vs. Gillis, 57 N. Y., 68, 15 Am. Rep., 464; Burgner vs. Humphreys, 41 Ohio State, 340; Jones vs. Wagner, 66 Pa St., 429, 5 Am. Rep., 385; Horner vs. Watson, 79 Pa. St., 242, 21 Am. Rep., 55; Coleman vs. Chadwick, 80 Pa. St., 81, 21 Am. Rep., 93; Nelson vs. Hoch, 41 Phila., 655; Scranton vs. Phillips, 94 Pa. St., 15; Carlin vs. Campbell, 101 Pa. St., 348, 47 Am. Rep., 722; Barnes vs. Berwind, 3 Penny, 140 (Pa. 1883); Gumbert vs. Kilgore, 6 Atl., 771; Williams vs. Hay, 120 Pa. St., 485, 14 Atl., 379, 6 Am St., 719; McGowan vs. Bailey, 155 Pa. St., 256, 25 Atl., 648; Pringle vs. Vesta Coal Co., 172 Pa. St., 438.

3 Popplewell vs. Hodkinson, L. R., 4 Ct, Exch. 247.