[*387

allege that the defendants have *done no more than work their mine according to the usual and approved course of mining in the district. They had an undoubted right to get all the ironstone from their mine, regardless of the natural consequences which might result from their so doing. That is the effect of the judgment of this court in Smith v. Kenrick and of the Exchequer Chamber in Acton v. Blundell. The only obligation which the law imposes upon the defendants, is, that, in working their mines, they shall not be guilty of negligence, or wilfully damage *the plaintiffs' mine. [ERLE, [*388 C. J.-The defendants in working their mine had no right to interfere with the natural flow of the water. If by gravitation it will go away, so be it: but they must not direct it.] The cruts were not made for the purpose of conducting the water in a given course, but for the purpose of getting the ore in the most convenient manner. Smith v. Kenrick distinctly lays it down that the rights and duties of one mine-owner are wholly independent of the working of his mine by an adjoining owner. In delivering the judgment of the court there, Cresswell, J., says,—7 C. B. 564 (E. C. L. R. vol. 62),-"Treating the question as a new one, not governed by the authority of any decided case, for, all those referred to are distinguishable,-it would seem to be the natural right of each of the owners of two adjoining coalmines, neither being subject to any servitude to the other,-to work his own mine in the manner most convenient and beneficial to himself, although the natural consequence may be, that some prejudice will accrue to the owner of the adjoining mine; so long as that does not arise from the negligent or malicious conduct of the party." [ERLE, C. J.-It can hardly be necessary to say that there is no such thing as a wrong, without pre-supposing a right which is violated.] There is greater difficulty in the question, undoubtedly, where artificial means are resorted to for the purpose of raising the water to a spot where it would not otherwise have flowed. But there is no allegation of improper mining here. On the contrary, it is averred by the pleas, and admitted by the demurrers, that what the defendants. stance, and that none of them show any invasion by the defendants of a legal right existing in the plaintiffs, or any good cause of action against the defendants:

"2. That, at any rate, the second, third, and fifth pleas are respectively good and valid answers to the counts to which they are respectively pleaded, and are respectively good in sub

stance:

"3. That the new-assignment of the plaintiffs to the third and fifth pleas respectively is bad. in substance, and that the additional facts therein stated make out no cause of action by the plaintiffs against the defendants:

"4. That the second plea to the new-assignment is good in substance, and is a good and valid answer to the new-assignment:

"5. That the defendants are at liberty to drain, draw, pump, or otherwise remove water from one part of their own mines to another part in whatever manner they may think fit, and are not liable if by reason thereof such water should percolate through strata pervious to water into the mines of the plaintiffs, and cause damage there:

"6. That, at any rate, the defendants are not liable for such consequences, if such draining, drawing, pumping, or otherwise removing of the water within their own mines be done solely for the purpose of mining, and in the usual, proper, and recognised manner and course of mining:

"7. That, at any rate, the defendants are not liable for such consequences, if they do not draw or pump such water from one part of their mines to another part, but the water runs and flows within their mines from one part to the other by gravitation and other natural forces along passages and openings made solely for the purpose of mining, and in the usual, proper, and recognised manner and course of mining."

C. B. N. S., VOL. XV.—16

did was done in the usual and accustomed course of good mining. The substantial causes of complaint alleged in the declaration and in the new assignment are all answered by the pleas.

*389] Gray, in reply.-As to the flow of water by means of the cruts, it is true that it is alleged that the cruts were made for the more convenient working of the defendants' mine; but enough is not alleged to constitute a defence. [BYLES, J.-The allegation is, that the defendants committed no trespass, and that they did what they did in the usual and proper course of mining.] As to the pumping up the water from the lower level, and so causing it to flow into the plaintiffs' mine, it is distinctly charged in the declaration and newassignment, and not denied or excused by anything that is alleged in any of the pleas. The following authorities were referred to,-The Duke of Beaufort v. Morris, 6 Hare 310; Yool on Waste 136; and Bainbridge on Mines 486. Cur. adv. vult. ERLE, C. J., now delivered the judgment of the court: (a)— In this case the plaintiffs complained of the flow of water into their mine from the defendants' mine. The defence was, that the flow arose from mining works carried on with due skill, in a customary and proper manner. As the complaint related to three kinds of foreign water, the questions raised may be better understood by a short description of the local relation of the two properties, which was agreed to be the effect of the pleadings. The two mines adjoined. The defendants' was the upper, the plaintiffs' the lower mine. In each mine were two seams of ironstone, distant a few fathoms from each other. Each seam cropped out on the surface of the defendants' land, and extended with a parallel dip down through the defendants' land into and through the plaintiffs' land. Each party had worked out the upper of the two seams of *ironstone, which we call No.

*390] 1; and the plaintiffs had left no barrier to stop back the water flowing down from the defendants' works in that seam; and of this water the plaintiffs did not complain, it being very clear, from Smith v. Kenrick, 7 C. B. 515 (E. C. L. R. vol. 62), that no complaint could be sustained. In order to get the mineral in the seam which we call No. 2, the defendants made a crut or passage from the first seam to the second seam, so constructed as to be on an incline from a part of the seam No. 2 to a part of the seam No. 1. Although No. 2 lay under No. 1, yet the head of the crut in No. 2 was at a higher level than the mouth of the crut in No. 1. This crut was made in the usual course of skilful mining, for the purpose of getting the minerals. The defendants' counsel explained it to be for the purpose of conveying minerals from the seam No. 2 down the crut to the seam No. 1, and down that seam to the shaft therein, so as to be raised to the surface. While the crut effected that purpose, at the same time the water from the works in the seam No. 2 flowed down through it into the seam No. 1, and so onwards into the plaintiffs' mine.

One complaint of the plaintiffs was of this water; and they contended that they were not obliged to receive through seam No. 1 more water than that which flowed from the works therein, and might maintain their action in respect of the water so flowing from the seam (a) The judges present at the argument were, Erle, C. J., Williams, J., Byles, J., and Keating, J.

No. 2: but on this point we think that the plaintiffs fail. The owners of the higher mine have a right to work the whole mine in the usual and proper manner, for the purpose of getting out any kind of mineral in any part of that mine; and they are not liable for any water which flows by gravitation into an adjoining mine from works so conducted. We think that the law was correctly laid down to that effect in Smith v. Kenrick. If this crut had been made for the *purpose of turning water into the plaintiffs' mine which would not [*391 otherwise have arrived there, and not for the purpose above described, we consider that the action would lie. It appears in Smith v. Kenrick, where the barrier of the lower mine had been wrongfully pierced for air-holes by a former occupier of the upper mine, that a subsequent occupier of the upper mine had no right to make a construction at his lower boundary for the sole purpose of turning some of his water through these openings. By paying money into court in an action for that wrong, he admitted that his exemption from liability was confined to the water which flowed by the laws of nature into the plaintiffs' mine from works conducted for the purpose of getting minerals.

The plaintiffs further complained of other foreign water which had flowed into their mine. This water is alleged in these pleadings to be raised by pumping to a level trough and to cause such a flowing. The counsel described the pumping to be for the purpose of getting other mineral, lying deeper than the two seams above mentioned; and the pump was so placed that a crut led therefrom to the head of the crut above mentioned, at such a level as that the water from the pump flowed down the two cruts into seam No. 1, and so into the plaintiffs' mine. In respect of this water, we think that the action lies.

The defendants, as occupiers of the higher mine, have no right to be active agents in sending water into the lower mine. The plaintiffs, as occupiers of the lower mine, are subject to no servitude of receiving water conducted by man from the higher mine. Each mine-owner has all rights of property in his mine, and, among them, the right to get all minerals therefrom, provided he works with skill and in the usual manner. And if, while the occupier of a higher mine [*392 *exercises that right, nature causes water to flow to a lower mine, he is not responsible for this operation of nature. If the owner of the lower mine intends to guard against this operation, he must leave a barrier at the upper part of his mine, to bay back the water of his higher neighbour. The law imposing these regulations for the enjoyment of somewhat conflicting interests, does not authorize the occupier of the higher mine to interfere with the gravitation of the water, so as to make it more injurious to the lower mine or advanta geous to himself.

This appears to us to be the law. For authority, we refer both to Smith v. Kenrick and also to the question left to the jury in Acton v. Blundell, 12 M. & W. 324.

The judgment will therefore be for the plaintiffs on the demurrer to the declaration and to the plea to the new-assignment, and for the defendants on the demurrer to the other pleas.

Judgment accordingly.

WHITELEY v. ADAMS. Nov. 23.

A communication made bonâ fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has, or honestly believes he has, a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter, which, without this privilege, would be slanderous and actionable.

A., a well-esteemed member of a congregation in London notorious for its extreme highchurch notions, being on a visit to a Mrs. H. (also a member of the same congregation), who was residing for a time at S., in Berkshire, was by her introduced to B., the rector of the parish, a gentleman of similar religious tendencies. The latter introduced A. to one of his parishioners, a farmer named F., with whom A. soon became on terms of intimacy, staying on several occasions at F.'s farm with different members of his family. After the lapse of some months, F., conceiving that he had ground of complaint against A. with regard to some private transactions which he communicated to B., brought an action against A. for board and lodging and the price of a horse which he alleged had been bought of him by A. A. resisted the claim as to the board and lodging on the ground that he and his family had resided at F.'s farm as guests and not as lodgers, and the claim as to the horse on the ground that he had only taken it upon trial.

In this state of things, one C., one of the curates of the London congregation, wrote to B. asking him to consent to act with him as arbitrator in the dispute between F. and A. B. declined; whereupon C. again wrote to him, urging it upon him as a sacred duty to aid in averting what he called a scandal from a member of his (C.'s) congregation. In reply to this letter, B. wrote to C. giving him his reasons for declining to act as arbitrator, imputing to A. very gross misconduct, and adding, "I think it my duty to unmask him to you."

This letter having been handed by C. to A., and the latter having commenced an action for a libel against B., B. came to London, and called on Mrs. H., to whom he detailed some of the charges against A. That lady intimated her conviction that B. was mistaken in his opinion of A., but said she would see him on the subject and communicate with B. the result, adding that she was quite sure A. would tell her the truth. Mrs. H. afterwards wrote to B. (with A.'s knowledge), telling him that A. denied all the charges alleged against him, and reiterating her confidence in A.'s integrity. B. thereupon wrote in answer to Mrs. H. substantially repeating the charges, saying, as to one of them, that there was not a shadow of doubt but that the complaint was correct, and that if A. denied it in the witness-box he would be indicted for perjury. This letter was also handed to A. (who, knowing it was coming, called on Mrs. H. for it), and a second action was the result.

The two actions having been consolidated, the jury at the trial found that the charges contained in the letters were unfounded, but that B. was not actuated by malice :—

Held, that both letters were privileged, on the ground that they were written by the defendant in what he believed to be the honest discharge of a social and moral duty, and on a subjectmatter in which the writer had an interest in making the communications, and the persons respectively receiving them had an interest in the receipt of them,-Byles, J., confining his judgment, as to the second letter, to the latter ground.

Two actions for libel were brought by the plaintiff against the defendant.

The declaration in the first action stated that the *defendant

*393] maliciously wrote and published of the plaintiff a letter containing the words, figures, and abbreviations following, that is to say, "Stockcross Parsonage, March 17th. Dear Sir, I cannot, I am sorry to say, accede to your request, for the following reasons,-first, because Mr. Fowler's lawyer, Mr. Smale, whom I know to be an honourable man, will, I am sure, be quite ready to compromise the matter instead of carrying it into court, if Mr. Whiteley will make fair overtures to him, secondly, because Mr. Whiteley's conduct has been so bad that I should be sorry to have my name in any way associated with him or his affairs. To give you an outline of all the charges which I hear laid against him would occupy more time than I have to spare this morning; but I will mention two or three which I believe to be well founded. Though only a lawyer's clerk, he passed himself off for some time in this parish as a lawyer of considerable wealth, and talked

largely about his landed property in Kent. This enabled him to impose on the rustic simplicity of the Fowlers in a way which he would not otherwise have done. Under the impression that *he was a gentleman of considerable means, they allowed him [*394

from time to time to make himself an unbidden guest at their house, and to send his son to stay with them for the benefit of his health for a month or two. They also sent him, at his request, poultry, &c., &c., and were given to understand by him that full compensation would be made to them for all the trouble and expense to which he had put them. But, with the exception of a shawl sent by Mrs. Whiteley to Mrs. Fowler, they have received no payment whatever. Last of all, he bought a horse of Mr. Fowler, which is not yet paid for; and his attempts to avoid payment have been characterized by extreme meanness, if not downright dishonesty. There are unpleasant rumours about his being immoral and intemperate: but, how far they are true, I am unable to say. It grieves me very much to make these statements respecting a man who evidently wishes to be considered a religious man and a good churchman: but, inasmuch as he said a great deal to my parishioners about his intimacy with the clergy of St. Barnabas, I think it my duty to unmask him to you; and I should be very thankful to be enabled to tell some of my neighbours that his position at St. Barnabas is not quite what he led them to suppose it to be, and especially that his official connection with the English Church Union had ceased,"-by means of the committing of which grievance, the plaintiff had been and was greatly injured in his character and credit, and brought into public scandal and disgrace, &c.

To this count the defendant pleaded not guilty, and a plea justifying the truth of the statements contained in the letter.

The declaration in the second action stated that the defendant falsely and maliciously wrote and published of the plaintiff a letter containing the words, figures, and abbreviations following, that is [*395 say,-"Stockcross Parsonage, May 6th. My dear Mrs. Hurry, -Time will show whether I have been misinformed or not respecting Mr. Whiteley. A writ has been served upon me, and a public inves tigation must therefore take place. If he states on oath in the witnessbox what he has stated to you, especially as to the charge of assault, he will be most certainly prosecuted for perjury; for, there is not a shadow of a doubt but that the complaint of the servant girl is correct. She is a person of unblemished reputation, and a communicant; and no one can listen to her statement, as I have done, without believing every word of it. As to the story about the farmer's wife and the beer-drinking at 10 o'clock on the Sunday morning, I do not attach much importance to it. They are charges of a very minor consideration: but the alleged assault is a very weighty accusation. I am sorry I shall not be able to call on you again for some time. Until the trial comes on I shall be hardly able to leave home: but, if you have any inclination to ask for further information and details, my attorney, Mr. Smale, will be happy to see you. With kind regards to Miss Hurry, sister Pauline, and yourself, believe me," &c.,-by means of the committing of which grievance the plaintiff had been and was greatly injured in his character and credit, and brought into public scandal and disgrace, &c.