Citation. 22 Ill.232 Ky. 791, 24 S.W.2d 619 (1929)
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Brief Fact Summary.
The entrance of a cave was located on Edwards, the Petitioner’s (Petitioner) property. The Petitioner operated a public exhibition of the cave. A dispute arose because the Petitioner’s neighbor, Lee (Lee), felt the cave might extend under his property.
Synopsis of Rule of Law.
Despite the historical principle that property ownership includes ownership of both the air above and the soil below real estate, there are certain cases, such as this, where a court of equity is empowered to make rulings which prevent the property from being used to the detriment of or interference with contiguous property and owners.
The entrance to the Great Onyx Cave was located on the Petitioner’s property. The Petitioner opened the cave to exploitation and public show. Lee owned the neighboring property. In an underlying case, Lee sued the Petitioner to compel a survey of the cave to determine whether any portion of the cave fell within the boundaries of Lee’s property. In that case, the Respondent here, Chancellor Sims (Respondent) ordered a survey. The Petitioner appealed that ruling and the Court of Appeals found the appeal was filed prematurely. The Petitioner, being aggrieved, filed the instant case in the form of a Petition for Writ of Prohibition against Chancellor Sims, who was sitting as the court of equity.
Does the Court have the right to order the invasion of Petitioner’s land, for the purpose of conducting a survey, to determine conclusively the rights between two landowners in a dispute before the Court?
Yes. The Writ of Prohibition is denied.
A Writ of Prohibition is an extraordinary remedy only issued upon certain proof. Under the provisions of the Kentucky Constitution, the Petitioner must show either (i) the inferior court has no jurisdiction and there is no remedy through appeal, and (ii) the inferior court possesses jurisdiction, but is exceeding its authority, or is about to exercise its power erroneously, and which would result in “great injustice and irreparable injury” to Petitioner where the Petitioner has no remedy by appeal or otherwise. Here, the Court holds the inferior court (Chancellor Sims), has jurisdiction over both the parties and subject matter. Therefore, this Court is concerned only whether the inferior court’s order was erroneous.
The Court finds this case to be one of first impression. In a prior case the Court held that one person may own surface rights and another may own cave rights, but that such a situation is not present here. Petitioner Edwards has what appears to be an undivided absolute right of ownership of the property. The Court also notes the historical principle that a property owner owns the sky above, the surface, and also the soil beneath his land. The Court observes, ordinarily such a right cannot be interfered with. Yet the Court finds that there are limitations on the historical doctrine.
The Court compared this case to one involving mines. The Court noted that in the case concerning mines, the Court of Equity had the right to order by injunction an inspection of the mine. A prerequisite to the inspection was a showing of reasonable suspicion the mine was intruding on a neighbor’s property. The Court found this analogy persuasive. In the mine case, the inspection is ordered to determine whether minerals are being extracted from the neighbor’s property, whereas in the case at bar, the inspection is ordered to determine whether the Petitioner is trespassing on the property of Lee. The Court finds that the power of the Chancellor to make such an order of inspection must be accompanied by (i) a bona fide claim and (ii) the Defendant to such a suit is accorded the opportunity to be heard. Both of those conditions were met in this case.
The Court refused to issue the Writ of Prohibition, meaning the inspection of the Petitioner’s property occurred. The Court found that the lower court had not exceeded its jurisdiction, therefore, no consideration had to be given to whether the Petitioner would suffer an irreparable injury as the result of the lower court’s order.
The Dissent would hold that since the effect of the lower court’s order is to injure Edwards while no risk of injury is borne by Lee the case is wrongly decided. Also, that the surface land where the mouth of the cave is found should make the entirety of the cave the property of the person who owns the mouth. Further, no one should be allowed to own anything which they cannot subject to their dominion.
The important principle from this case is that the right of a property owner is not absolute and that courts will, in rare instances, find exceptions to common-law historical maxims. It is useful also to consider the extraordinary remedy of the Writ of Prohibition, along with the requirements for issuing the Writ.