Property I, Pages 97–102

Edwards v. Sims

Court of Appeals of Kentucky, 1929

Facts:

Defendant was a judge who directed surveyors to enter plaintiff's land and others' to survey the Great Onyx Cave to see if it ran under the property of a man named Lee.

Issue:

Did the court proceed erroneously by entering and enforcing the order directing the survey of the subterranean premises of the petitioners?

Plaintiff's Argument:

Defendant was without jurisdiction or authority to make the order, and plaintiff's cave property and right of possession and privacy will be wrongfully and illegally invaded, causing injury without an adequate remedy.

Rules:

  • The owner of the surface owns everything above and below his land unless explicitly separated.

  • Page 98, Paragraph 3

    A court of equity, however, has the inherent power to compel a mine owner to permit an inspection of his works at the suit of a party who can show reasonable ground for suspicion that his lands are being trespassed upon through them, and may issue an injunction to permit such inspection.

    Exception:

    The person applying for such an inspection must show a bona fide claim and allege facts showing a necessity for the inspection, and the person whose property is to be inspected must have had an opportunity to be heard in relation thereto.

Reasoning:

The plaintiff no doubt owns a section of the cave. However a cave is like a mine, and must be inspected for others as well. This inspection should therefore be allowed as such.

Holding:

No, the court was allowed to direct a survey of the cave to inspect for trespass. Writ of prohibition denied.

Dissenting Opinion:

Logan: While no legal precedent says so, the age-old doctrine that one who owns the land owns everything above and below is not true. The owner of the land has no right to the cave underneath it; it should belong entirely to he who owns the entrance of the cave. Can one stop airplanes from flying overhead? Passing through one's property should be allowed if it does not interfere with his profit or pleasure.

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