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Kentucky Court of Appeals - 24 S.W.2d 619, 232 Ky. 791
Tags: Property
tl;dr:
The court has the right to order a survey of an owner's land to determine the coextensive property rights of adjacent landowners.Video Summary
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The case involves an appeal to reverse an order by the lower court to survey the Great Onyx Cave for evidence. The issue is whether the court has the power to invade an owner's property rights to determine if they are trespassing on their neighbor's property. The court believes that a court of equity has the inherent power to compel an inspection of a mine owner's works if there is reasonable suspicion of trespassing. The respondent cites several cases from other jurisdictions where this power has been recognized and exercised. The appeal was dismissed as the order was interlocutory and not appealable. The case does not involve the severance of cave rights from the surface estate.
Judge Logan dissents from the majority opinion that the owner of the surface of real estate owns everything below and above it. He argues that the owner of the surface has the right to everything that can be taken from the earth and used for their benefit, but not to a cave or cavern unless they own the entrance and have explored and connected the reaches of the cave to the entrance. He suggests that the old principle that the owner of the surface of land owns everything from the zenith to nadir must be reformed to fit present-day conditions. The true principle should be that the owner of the surface owns everything upon, above, or under it which they may use for their profit or pleasure and subject to their dominion and control, but their ownership cannot extend beyond what they can use and benefit from, and which may be of benefit to others.
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