P discovered a cave under his land and also the entrance to that cave. He explored the cave and began advertising the cave to the public.
Tourists began to visit the cave, P began to profit.
Lee lived on adjoining land and thought that P's cave was partially under his land. Lee asked a court to order a survey of the cave to see if there was any of it under his land. If so, he would be entitled to ownership of the cave under his land (and, thus, some of the profits).
P sought a writ to keep the judge from ordering the survey.
Procedural History:
Lower court found for Lee, ordered survey.
COA KY denied writ of prohibition, ordered survey.
Issues:
Should a landowner have to rights to everything above and below his land?
Holding/Rule:
A landowner should have the rights to everything above and below his land.
A court has the right to interfere with property rights of one to enforce the property rights of another.
Dissent rules…
He who owns the surface is the owner of everything that may be taken from the earth and used for his profit or happiness.
The owner of the surface has no right in such a cave which the law should protect unless he owns an entrance into it.
Reasoning:
To whomever the soil belongs, he owns also to the sky and to the depths is an old maxim and rule.
Caves and mines are very similar, and such action would be allowed in the case of a mine.
This survey will establish who has title to the cave and should be undertaken to prevent trespass.
Dissent:
The majority's rule might follow from case law, but it is wrong for a court of equity to injure one party without benefitting the other party.
He who owns the surface is the owner of everything that may be taken from the earth and used for his profit or happiness.
The owner of the surface has no right in such a cave which the law should protect unless he owns an entrance into it.
The earth to the sky adage is stupid.
Under the majority rule, an airplane is trespassing when it flies over someone's land.
