Backhouse v Bonomi
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1858 |
| Date | 07 June 1858 |
| Court | High Court |
English Reports Citation: 120 E.R. 643
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
Reversed in Exchequer Chamber, El. Bl. & El. 646. The latter decision affirmed in House of Lords, 9 H. L. C. 503; 11 E. R. 825 (with note).
[622] laNATius bonomi, and caroline his Wife, against backhouse. Monday, June 7th, 1858. Declaration alleged that plaintiff was owner of the reversion of a messuage entitled to the support of the underground mines and earth of the contiguous ground, and that defendant, well knowing &c., negligently, and without leaving proper support, worked the mines under the contiguous land, and kept and continued the messuage, and caused it to remain, without proper support; whereby it became injured. Plea: That the cause of action did not accrue within six years.-It appeared that the messuage was an ancient house : and that defendant, more than six years before action brought, worked the mines at 280 yards distance from the house, in such a manner that the earth intervening between the place of working and the foundation of the house gradually gave way, and finally, within six years of action brought, the effect reached the foundation of the house, which was thereby injured. Till within the six years, no actual damage to the house occurred, nor was the act of defendant known to plaintiff.-Held, by the Court of Q. B. (Lord Campbell C.J., Coleridge and Erie Js., dissentiente Wightman J.), that the defendant was entitled to the verdict.-Judgment reversed in Exchequer Chamber. [Reversed in Exchequer Chamber, El. Bl. & El. 646. The latter decision affirmed in House of Lords, 9 H. L. C. 503; 11 E. E. 825 (with note).] The writ in this action issued on 20th May, 1856. The declaration complained: For that certain messuages and buildings, situated in the parish of West Auckland in the county of Durham, were in the occupation of a certain person, to wit William Parkin, to wit as tenant thereof, the reversion of and in the said premises then and still being in and belonging to the plaintiffs in right uf the said Caroline; and for 644 BONOMI V. BACKHOUSE El BL & EL. 823- that the plaintiffs, in right of the said Caroline, were entitled to have the said messuages and buildings supported, to wit by the mines, earth and soil underground, contiguous, and near to, and under, the said messuages and buildings : yet defendant, well Knowing the premises, wrongfully, carelessly, negligently, and improperly, and without leaving any proper or sufficient support in that behalf, worked certain coal mines under ground, contiguous, and near to, and under the said messuages and buildings, and dug for, and got and took away, coals, earth and soil, out of the mines, and Wrongfully and unjustly kept and continued the said messuages and buildings, and [623] caused them to be and remain, without any proper or reasonable or sufficient support, for a long space of time: whereby, and by reason of the premises, the foundations of the said messuages and buildings became and were greatly weakened and injured ; and the walls of the said messuages and buildings became and were cracked and injured : and the ground, on which the said messuages and buildings stood, subsided, cracked, swagged and gave way. That, by means of the premises, plaintiffs have been and are injured in their reversionary estate and interest in the said messuages and buildings. Pleas. 1. Not guilty. 2. Denial of Parkin's occupancy as tenant as alleged. 3. Denial of the reversion being in the plaintiffs as alleged. 4. That the plaintiffs were not entitled to have the said messuages and buildings, or any or either of them, supported, to wit by the mines, earth, and soil under ground, contiguous, near to, and under the said messuages and buildings, as alleged. 5. That the said alleged causes of action did not accrue within six years before this suit. Issues on all the pleas. On the trial, at the Durham Summer Assizes, 1856, it was ordered, by consent of parties, that the verdict should be entered for the plaintiffs, subject to a special case to be stated for the opinion of this Court by a barrister, who waa to find what caused the damage of which plaintiffs complained, and state such facts as were material, with dates. The arbitrator accordingly stated a case, in substance as follows. The messuages and buildings in the declaration mentioned are situated on the North side of the village of [624] West Auckland in the county of Durham. And they consist of a dwelling bouse and outbuildings contiguous to each other, which are now, and have for some time past been, used as an inn called the Crown Inn, and a yard immediately behind the dwelling house and buildings. The dwelling house and other buildings are all ancient. And they had been in existence for more than forty years before they sustained the injuries complained of in the declaration. And immediately before sustaining those injuries they were in good repair. The said messuages and buildings in the declaration mentioned, the land on which they stand, and the yard behind, were, on 23d September 1835, conveyed to the female plaintiff Caroline Ann Bonomi, who was then unmarried, and by her then name Caroline Ann Fielding, in fee simple. And she continued to be seised as of fee of the said messuages, buildings yard and land, until the time of her marriage with the plaintiff Ignatius Bonomi; which took place on the 27th day of December, 1837. When, and from which time, the plaintiffs became and were, and have ever since continued to be, seised of the said messuages, buildings, yard and land, as of fee, in right of the said Caroline, the female plaintiff. In the year 1848 the said messuages and buildings and yard were let by the plaintiffs to William Parkin, who has continued ever since that time to occupy the same, as tenant thereof to the plaintiffs. And the plaintiffs, in right of the said Caroline, during all that time, continued to be, and still are, seised, as of fee, of and in the revision of and in the said messuages, buildings, yard arid land. The messuages and buildings in the declaration mentioned, and the laud upon which they stand, were, at [625] all times before those messuages and buildings sustained the injuries complained of in the declaration, firmly supported by the mines, earth and soil underground, and as well those under the lands contiguous and near to, as the land under, the said messuages, buildings and land of the plaintiffs. (The ground plot of the plaintiffs' said messuages and buildings was shewn in a plan, to be taken as part of the case.) The defendant, together with some other persons, was, for several years before and until June, 1853, lessee of West Auckland Colliery (mentioned in the order of reference), consisting, amongst others, of coal mines lying under all the lands EL. BLfcBLK*. BONOMI V. BACKHOUSE 645 surrounding and immediately adjoining tbe plaintiffs' said dwelling bouse, buildings and land. (The workings of the colliery were shewn in the plan.) The defendant atid his co-lessees held a large part of those mines under a lease for years granted by the late Bishop of Durham, to whom that part of the mines belonged in right of his see; and other part of the mines under a lease for years granted by Sir William Eden, to whom that part of the mines belonged. The residue of the mines worked by the defendant and his co-lessees were chiefly under small parcels of land. And they worked those parts of the mines generally by special agreements made with the owners of coal from time to time. But, in at least one case, they worked the coal without the consent of the owner of it. The defendant and his co-lessees worked the coal mines under the plaintiffs' said dwelling house, buildings and land, and also under all the lands surrounding and adjoining to the plaintiffs' dwelling house, buildings and land, and had nearly finished their workings under all those lands on the 20th day of May, 1850. But the [626] residue, being only a small portion of the workings of the mines in that district, and near to the said village of West Auckland, was executed and completed after that time, and within the term of six yeans next, before the commencement of this action. I have not had any evidence given before me that the plaintiffs in any way assented to the coal under their said dwelling house, buildings and land being worked by the defendant and his co-lessees. The coal under the plaintiffs' said house, buildings and land, and under the lands surrounding and adjoining the house, buildings and land of the plaintiffs, was of a quality called "eleety," being liable upon exposure to the air gradually to become disintegrated and fall to pieces. The defendant and his co-lessees worked the coal mines under, contiguous and near to the plaintiffs' house, buildings and land, in the usual manner, taking away a portion of the coal, and leaving the residue standing as pillars to support the roof of the mines. The pillars of coal thus left standing unworked by the defendant and his co-lessees in many places would have been amply sufficient to support the roof, and bear the ordinary superincumbent weight and pressure upon them, if all the other parts of the defendant's mines had been worked in the same manner. In several other places the pillars of coal, which the defendant and his co-lessees had left standing and unworked, were of smaller dimensions than those above mentioned. These smaller pillars would have been sufficient to support the roof and sustain all the superincumbent weight for many years to come, if the roof of the defendant's mines in all other parts had been properly supported. But, owing to the peculiar properties of the coal already mentioned, these [627J last mentioned pillars would not have permanently supported the parts of the roof which were above them; and they would ultimately have given way and let down those parts of the roof which were...
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