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Citation. 22 Ill.232 Ky. 791, 24 S.W.2d 619 (1929)
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. Facts.
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. Issue.
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?