Parker, C. J.
The facts agreed present a case of great misfortune and loss, and one which has induced us to look very minutely into the authorities, to see if any remedy exists in law against those who have been the immediate actors in what has occasioned the loss ; but after all the researches we have been able to make, we cannot satisfy ourselves that the facts reported will maintain this action. -
The plaintiff purchased his land in the year 1802, on the .summit of Beacon Hill, which has a rapid declivity on all sides. In 1804 he erected a brick dwelling-house and out-houses on this lot, and laid his foundation, on the western side, within two feet of his boundary line. The inhabitants of the town of Boston were at that time the owners, either by original title or by an uninterrupted possession for more than sixty of the land ,on the hill lying westwardly of the lot pur[197]*197chased by the plaintiff. On the 6th of August, 1811, the defendants purchased of the town the land situated westwardly of the said lot owned by the plaintiff; and, in the same year, commenced levelling the hill, by digging and carrying away the gravel; they not actually digging up to the line of division between them and the plaintiff; but keeping five or six feet therefrom. Nevertheless, by reason of the hill, the earth fell away, so as in some * places [* 224 j to leave the plaintiff’s foundation wall bare, and so to endanger the falling of his house, as to make it prudent and necessary, in the opinion of skilful persons, for the safety of the lives of himself and his family, to remove from the house; and, in order to save tho materials, to take down the house, and to rebuild it on a safer foundation. The defendants were notified of the probable consequences of thus digging by the plaintiff, and were warned that they would' he called upon for damages, in case of any loss.
The manner, in which the town of Boston acquired a title to the. land, or to the particular use to which it was appropriated, can have no influence upon the question ;• as the fee was in the town, without any restriction as to the manner in which the land should be used or occupied.
It is a common principle of the civil and of the common law, that the proprietor of land, unless restrained by covenant or custom, has the entire dominion, not only of the soil, but of the space above and below the surface, to any extent he may choose to occupy it.
The law, founded upon principles of reason and common utility, has admitted a qualification to this dominion, restricting the proprietor so to use his own, as not to injure the property or impair any actual existing rights of another. Sic utere tua ut alienum non Icedas. Thus, no man, having land adjoining his neighbour’s which has been long built upon, shall erect a building in such manner as to interrupt the light or the air of his neighbour’s house, or expose it to injury from the weather or to unwholesome smells.'
But this subjection of the use of a man’s own property to the convenience of his neighbour is founded upon a supposed preexisting right in his neighbour to have and enjoy the privilege which by such act is impaired. Therefore it is, that, by the ancient common law, no man could maintain an action against the owner of an adjoining tract of land, for interrupting the passage of the light or the air to a tenement unless the tenement thus affected was ancient, so that the plaintiff could prescribe for the privilege of which he had * been deprived ; upon the common notion of prescription, [*225 ] that there was formerly a grant of the privilege, which grant has been lost by lapse of time, although the enjoyment of it has continued.
Now, in such"case of a grant presumed, if shall for the purposes [198]*198of justice be further presumed that it was from the ancestor of the man interrupting the privilege, or from those whose estate he has ; so as to control him in the use of his own property, in any manner that shall interfere with or defeat an ancient grant thus supposed to have been made. This is the only way of accounting for the common law principle which gives one neighbour an action against another, for making the same use of his property which he has made of his own. And it is a reasonable principle ; for it would be exceedingly unjust that successive purchasers or inheritors of an estate for the space of sixty years, with certain valuable privileges attached to it, should be liable to be disturbed by the representatives or successors of those who originally granted, or consented to, or acquiesced in, the use of the privilege.
It is true, that, of late years, the courts in England have sustained actions for the obstruction- of such privileges of much shorter duration than sixty years. But the same principle is preserved of the presumption of a grant. And, indeed, the modern doctrine, with respect to easements and privileges, is but a necessary consequence of late decisions, that grants and title-deeds may be presumed to have been made, although the title or privilege claimed under them is of a much later date than the ancient time of prescription.
The plaintiff cannot pretend to found his action upon this principle ; for he first became proprietor of the land in 1802, and built his house in 1804, ten years before the commencement of his suit. So that, if the presumption of a grant were not defeated by showing the commencement of his title to be so recent, yet there is no case, where less than twenty years has entitled a building to the [*226] qualities of * an ancient building, so as to give the owner a right to the continued use of privileges, the full enjoyment of which necessarily trenches upon his neighbour’s right to use his own property in the way he shall deem most to his advantage. A man who purchases a house, or succeeds to one, which has the marks of antiquity about it, may well suppose that all its privileges of right appertain to the house ; and, indeed, they could not have remained so long, without the culpable negligence or friendly acquiescence of those who might originally have had a right to hinder or obstruct them. But a man who himself builds a house, adjoining his neighbour’s land, ought to foresee the probable use by his neighbour of the adjoining land ; and, by convention with his neighbour, or by a different arrangement of his house, secure himself against future interruption and inconvenience.
This seems to be the result of the cases anciently settled in England, upon the substance of nuisance or interruption of privileges and easements ; and it seems to be as much the dictate of common «ense and sound reason, as of legal authority.
[199]*199The decisions cited by the counsel for the plaintiff,
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Parker, C. J.
The facts agreed present a case of great misfortune and loss, and one which has induced us to look very minutely into the authorities, to see if any remedy exists in law against those who have been the immediate actors in what has occasioned the loss ; but after all the researches we have been able to make, we cannot satisfy ourselves that the facts reported will maintain this action. -
The plaintiff purchased his land in the year 1802, on the .summit of Beacon Hill, which has a rapid declivity on all sides. In 1804 he erected a brick dwelling-house and out-houses on this lot, and laid his foundation, on the western side, within two feet of his boundary line. The inhabitants of the town of Boston were at that time the owners, either by original title or by an uninterrupted possession for more than sixty of the land ,on the hill lying westwardly of the lot pur[197]*197chased by the plaintiff. On the 6th of August, 1811, the defendants purchased of the town the land situated westwardly of the said lot owned by the plaintiff; and, in the same year, commenced levelling the hill, by digging and carrying away the gravel; they not actually digging up to the line of division between them and the plaintiff; but keeping five or six feet therefrom. Nevertheless, by reason of the hill, the earth fell away, so as in some * places [* 224 j to leave the plaintiff’s foundation wall bare, and so to endanger the falling of his house, as to make it prudent and necessary, in the opinion of skilful persons, for the safety of the lives of himself and his family, to remove from the house; and, in order to save tho materials, to take down the house, and to rebuild it on a safer foundation. The defendants were notified of the probable consequences of thus digging by the plaintiff, and were warned that they would' he called upon for damages, in case of any loss.
The manner, in which the town of Boston acquired a title to the. land, or to the particular use to which it was appropriated, can have no influence upon the question ;• as the fee was in the town, without any restriction as to the manner in which the land should be used or occupied.
It is a common principle of the civil and of the common law, that the proprietor of land, unless restrained by covenant or custom, has the entire dominion, not only of the soil, but of the space above and below the surface, to any extent he may choose to occupy it.
The law, founded upon principles of reason and common utility, has admitted a qualification to this dominion, restricting the proprietor so to use his own, as not to injure the property or impair any actual existing rights of another. Sic utere tua ut alienum non Icedas. Thus, no man, having land adjoining his neighbour’s which has been long built upon, shall erect a building in such manner as to interrupt the light or the air of his neighbour’s house, or expose it to injury from the weather or to unwholesome smells.'
But this subjection of the use of a man’s own property to the convenience of his neighbour is founded upon a supposed preexisting right in his neighbour to have and enjoy the privilege which by such act is impaired. Therefore it is, that, by the ancient common law, no man could maintain an action against the owner of an adjoining tract of land, for interrupting the passage of the light or the air to a tenement unless the tenement thus affected was ancient, so that the plaintiff could prescribe for the privilege of which he had * been deprived ; upon the common notion of prescription, [*225 ] that there was formerly a grant of the privilege, which grant has been lost by lapse of time, although the enjoyment of it has continued.
Now, in such"case of a grant presumed, if shall for the purposes [198]*198of justice be further presumed that it was from the ancestor of the man interrupting the privilege, or from those whose estate he has ; so as to control him in the use of his own property, in any manner that shall interfere with or defeat an ancient grant thus supposed to have been made. This is the only way of accounting for the common law principle which gives one neighbour an action against another, for making the same use of his property which he has made of his own. And it is a reasonable principle ; for it would be exceedingly unjust that successive purchasers or inheritors of an estate for the space of sixty years, with certain valuable privileges attached to it, should be liable to be disturbed by the representatives or successors of those who originally granted, or consented to, or acquiesced in, the use of the privilege.
It is true, that, of late years, the courts in England have sustained actions for the obstruction- of such privileges of much shorter duration than sixty years. But the same principle is preserved of the presumption of a grant. And, indeed, the modern doctrine, with respect to easements and privileges, is but a necessary consequence of late decisions, that grants and title-deeds may be presumed to have been made, although the title or privilege claimed under them is of a much later date than the ancient time of prescription.
The plaintiff cannot pretend to found his action upon this principle ; for he first became proprietor of the land in 1802, and built his house in 1804, ten years before the commencement of his suit. So that, if the presumption of a grant were not defeated by showing the commencement of his title to be so recent, yet there is no case, where less than twenty years has entitled a building to the [*226] qualities of * an ancient building, so as to give the owner a right to the continued use of privileges, the full enjoyment of which necessarily trenches upon his neighbour’s right to use his own property in the way he shall deem most to his advantage. A man who purchases a house, or succeeds to one, which has the marks of antiquity about it, may well suppose that all its privileges of right appertain to the house ; and, indeed, they could not have remained so long, without the culpable negligence or friendly acquiescence of those who might originally have had a right to hinder or obstruct them. But a man who himself builds a house, adjoining his neighbour’s land, ought to foresee the probable use by his neighbour of the adjoining land ; and, by convention with his neighbour, or by a different arrangement of his house, secure himself against future interruption and inconvenience.
This seems to be the result of the cases anciently settled in England, upon the substance of nuisance or interruption of privileges and easements ; and it seems to be as much the dictate of common «ense and sound reason, as of legal authority.
[199]*199The decisions cited by the counsel for the plaintiff,
The common law has adopted the same principle, considering the actual enjoyment of an easement for a long course of years as establishing a right which cannot with impunity be impaired by him who is the owner of the land adjoining.
The only case cited from common law authorities, tending to show that a mere priority of building operates to deprive the tenant of an adjoining lot of the right of occupying and Using it at his pleasure, without being subjected to damages, if by such use he should injure a building previously erected, is that of Slingsby vs. Barnard, cited from Rolle. Sir John Slingsby brought his action on the case against Barnard and Ball, and declared that he was seized of a dwelling-house nuper edificatus, and that Barnard was seized of a house next adjoining ; and that Barnard, and Ball under him, in making a cellar under Barnard’s house, dug so near the foundation of the plaintiff’s house, that they undermined the same, and one half of it fell. Judgment upon this declaration was for the plaintiff, no objection having been made as to the right of action, but on.jy to the form of the declaration.
The report of this case is very short and unsatisfactory ; it not appearing whether the defendant confined himself in his digging to his own land, or whether the house then lately built was upon a new or an old foundation. Indeed, it seems impossible to maintain that case upon the facts made to appear in the report, without denying principles [200]*200which seem to have been deliberately laid down in other books, equally respectable as authorities.†
[201]*201Thus, in Siderfin, 167, upon a special verdict the case was thus. A., having a certain quantity of land, erected a new house upon part of it, and leased the house to B. and the residue of the land to C., who put logs and other things upon the land adjoining said house, so that the windows were * darkened, &c. It was [*228] holden that B. could maintain case against C. for this injury. But the reason seems to be, that C. took his lease seeing that the house was there, and that he should not, any more than the lessor, render the house first leased less valuable by his obstructions.† It was, however, decided in the same case, that, if one seized of land lease forty feet of it to A. to build upon, and another forty feet to B. to build upon, and one builds a house, and then the other digs a cellar upon his ground, by which the wall of the first house adjoin • ing falls, no action lies ; and so, they said, it was adjudged in Pigott fy Surry's case, for each one may make what advantage he can of his own.‡ The principle of this decision is, that both parties came to [202]*202the land with equal rights in point of time and title ; and that he who first built his house should have taken care to stipulate with his neighbour, or to foresee the accident and provide against it by setting his house sufficiently within his line to avoid the mischief. In the same case it is stated, as resolved by the court, that, if a stranger have the land adjoining to a new house, he may build new houses, &c., upon his land, and the other shall be without remedy, when the. lights are darkened ; otherwise, when the house first built was an ancient one.
In Rolle’s Abridgment, 565, A., seized in fee of copyhold estate, next adjoining land of B., erects a new house upon his copyhold land, and a part is built upon the confines next adjoining the land of B., and B. afterwards digs his land so near the house of A., but on no part of his land, that the foundation of the house, and even the house itself, fall; yet no action lies for A. against B., because it was the folly of A. that he built his house so near to the land of B. For by his own act he shall not hinder B. from the best use of his own land that he can. And after verdict, judgment was arrested. The reporter adds, however, that it seems that a man, who has land next adjoining my land, cannot dig his land so near mine, as to cause mine to slide into the pit; and, if an action be brought for this, it will lie.
[ * 229] * Although, at first view, the opinion of Rolle seems to be at variance with the decision which he has stated, yet they are easily reconciled with sound principles. A man in digging upon his own land is to have regard to the position of his neighbour’s land, and the probable consequences to his neighbour, if be digs too near his line ; and if he disturbs the natural state of the soil, he shall answer in damages ; but he is answerable only for the natural and necessary consequences of his act, and not for the value of a house put upon or near the line by his neighbour. For, in so placing the house, the neighbour was in fault, and ought to have taken better care of his interest.†
[203]*203If this be the law, the case before us is settled by it ; and we have not been able to discover that the doctrine has ever been overruled, nor to discern any good reason why it should be.
The plaintiff purchased his land in 1802. At that time the inhabitants of Boston were in possession and the owners of the adjoining land now owned by the defendants. The plaintiff built his house within two feet of the western line of the lot, knowing that the town, or those who should hold under it, had a right to build equally near to the line, or to dig down into the soil for any other lawful purpose. He knew also the shape and nature of the ground, and that it was impossible to dig there without causing excavations. He built at his peril; for it was not possible for him, merely by building upon his own ground, to deprive the other party of such use of his as he should deem most advantageous. There was no right acquired by his ten years’ occupation, to keep his neighbour at a convenient distance from him. He could not have maintained an action for obstructing the light or air ; because he should have known, that, in the course of improvements on the adjoining land, the light and air might be obstructed. It is, in fact, damnum, absque injuria,.
By the authority above cited, however, it would appear that for the loss of, or injury to, the soil merely, his action * [ * 230 ] may be maintained. The defendants should have anticipated the consequences of digging so near the line ; and they are answerable for the direct consequential damage to the plaintiff, although not for the adventitious damage arising from his putting his house in a dangerous position.
1 Domat, 309, 408. — Fitz N. B. 183 — 9 Co. 59. — Palmer, 536. — 1 Roll. Abr. 140.—Ibid. 430. — Slingsby vs. Barnard, 1 Roll. Rep. 88.— 2 Roll Abr. 565. — 2 Saund. 697.— Co. Lit. 56, b. — 1 Burr. 337. — 6 D. & E. 411. — 7 East, 368. — 1 B. & P. 405 3 Wils 461.