A right of way may be granted appurtenant to a mine. It is subject to the general principles applicable to rights of way in terms of its use. Its directional route may be defined.
The reasonable use of the stream to which a riparian owner is entitled includes abstraction of reasonable quantity of water for the purpose of working machinery in connection with his mine. Property rights extend to water, soil on the surface and below the land, provided it is flowing in known and defined channels.
A riparian owner is not bound to accept greatly increased flow of water caused by discharge of water raised from mines by artificial means. The mine owner is not entitled by working minerals under a river to cause subsidence so as to interfere with the flow to a lower riparian owner. He is not entitled to draw off all the water in natural watercourses.
A right may be granted to conduct water through an artificial channel over adjoining land. In this case, the party through whose land the water flows presumptively may take water without liability to others whose land it flows through.
A temporary diversion of flow for a particular purpose may be allowed without breaching the rights of those owners through whose land it flows. If however, the stream is originally intended to have a permanent flow or if the party who has caused the artificial channel to flow has abandoned the works by which the flow was caused and given up control over the streams, rights may be acquired by prescription both as against persons from whose land the stream comes and any person through whose land it flows similar to those existing in natural streams.
The riparian owner may have an action for damages if his natural or acquired rights are infringed. An injunction will be given to restrain continuance of the injury even if there is no actual damage. Inspection of the neighbouring property may be allowed if there is a prima facie case on an interlocutory application.
There is no natural right of water flowing in an undefined channel and a mine owner carrying on a mining operation who drains away water from an adjacent or super adjacent lands, so the wells become dry is under no liability. However, the right to prevent diversion and abstraction may be acquired by grant. Pollution of a stream is an offence under a range of legislation.
Incidental to property and land, there is a right to permit water naturally present to flow or percolate by r gravity through land or underground strata to a lower level. There is presumptively no right on the part of the owner to discharge water onto the land at a lower level by interference with gravity or by conducting water through an artificial channel for that purpose.
The occupier of a mine is entitled to extract minerals in the most efficient manner, and he is not liable if he permits the escape of water which collects in the workings or even the natural flow was increased. Accordingly,
- the removal of stratum which caused indentation of a lower mine by an accumulation of water above the stratum or
- working in a proper manner which results in surface cracks and allow surface water to enter or
- damming up water by a barrier so that water accumulates and overflows to an adjacent mine or an increased natural flow by rivers working
does not impose liability on the owner of the upper mine in respect of an injury to an adjoining mine owner by the consequent inflow of water. The mining operation should however be reasonable, ordinary and proper.
A miner who trespasses an adjoining owner is liable in relation to damage caused by the inflow of water in consequence of the original trespass. However there is no continuing nuisance and the damage must be recovered all at once.
A mine owner presumptively is not entitled to pump water from his mine in discharge into a stream in which the owner has riparian rights. He may not conduct water to a mine at a lower level by artificial pipes. He will be liable for damage caused if he pumps up water from a lower part of his mine and allows it to ascend by gravity into an adjoining mine or conducts water through a weak spot in his neighbour’s boundary.
A person is presumptively liable for all damage resulting from escape of water which he has collected and retained on his land for his own purpose. In accordance with the famous Rylands v Fletcher principle, a person who collects something on his land which is the dangerous if it escapes, is liable for the consequences regardless of negligence or nuisance. No right to discharge water onto a neighbouring mine may be acquired as an easement by grant of prescription or statute.
A mine owner presumptively has no right to ventilate his own mine by making an opening into an airway through his neighbours mine. However, if by natural causes, or due to the act of his neighbour, his mine is ventilated by the passage of air, the neighbouring owner does not acquire a right of action and may block up the opening.
A right to ventilate a mine by passage of air may exist as an easement. It may exist by grant, statute, implication or prescription.
That emission of smoke, fumes and vapours that diminish neighbouring property value or its beneficial use may constitute an actionable nuisance at common law. Damages may be recovered, or an injunction e may be granted to restrain it. There may be procedures against the statutory nuisance or under more comprehensive antipollution legislation.
In the absence of indication to the contrary, there is incident to the ownership of a mine, a right to take and carry away the minerals where it is granted. The grant will be interpreted to give effect to the same where possible.
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