particularly the public debt, of the extinguished state. The former falls heir to the latter's assets, credits, revenues, and resources subject to the charges or burdens resting upon them. Res transit cum suo onere. Thus, the United States assumed the public obligations of the former colonies in 1789, the enlarged Sardinia or the new Italy took over the public debts of the lately annexed Italian states in 1861, as did Prussia those of the incorporated German states in 1866. In case there are several successors, the debt should be ratably divided, preferably in proportion to the revenues and taxable resources of that portion of the divided territory which each receives. In principle, the absorbing or incorporating state also succeeds to the contractual obligations of the extinguished state, at least as far as the rights of third parties are involved; and, vice versa, the contractual rights and obligations of the annexing state extend to the inhabitants and territory of the people absorbed. There are, however, important exceptions to this rule. It is clear that political (including personal and dynastic) treaties and alliances of the extinguished state fall to the ground. It is equally clear that transitory or dispositive treaties remain in force. Of such a character are stipulations respecting boundary lines, servitudes, or easements resting on the land relating to the use and repair of roads (including railways) or the navigation of rivers, etc. In these cases the rights of third parties, which it would be illegal to ignore or destroy, are involved. There is a serious difference of opinion in respect to treaties of commerce, navigation, extradition, etc. According to some authorities (e. g., Despagnet, No. 91; 1 Piedelievre, No. 148; Rivier, pp. 72 ff.; 1 Westlake, p. 67 n.) such treaties are extinguished like those of a political alliance or friendship. According to another, but more infrequent, view, 'treaties of commerce and other international conventions which bind the annexed state' (1 F de Martens, p. 369) remain in force. There is a third opinion which considers 'a general answer to these questions based on principle, to be impossible, and leaves them to the nature and scope of the treaties and concrete circumstances for decision.' (Ullmann, 2d ed. p. 132. Cited by 1 Westlake, p. 67 n.) The better opinion (and the one most consonant with international practice) would seem to be that such treaties may be annulled at the option of the absorbing state. True it is that the rights and interests of third parties are affected; but the interests involved are for the most part economic or quasi political in their nature, and cannot as a rule resist the pressure of changed social and political conditions."

In Wilson on International Law, p. 51, it is said: "When the whole or a portion of one state becomes a part of another state as a result of conquest, cession, or otherwise, local obligations pass to the acquiring state. Contracts relating to the public interests of the acquired territory, entered into by the state formerly having sov

ereignty, are usually acknowledged by the new sovereign. Provisions to this effect occur in many treaties, and when not specifically mentioned such obligations are usually assumed, on proof that the claim is just and equitable." And on p. 369 the same author says: "If the whole state is completely conquered, there is no authority with which to make any treaty, and the rights and obligations belonging to the territory pass to the conqueror."

In Taylor on International Public Law, p. 201, it is said: "Whenever an entire state loses its identity by being absorbed into another, the absorbing power as the heir to its whole property naturally becomes liable for its entire debt, and at the same time extends its treaty obligations to the annexed territory. After the incorporation of Naples in the Kingdom of Italy, it was decided by the courts of both France and Italy that a treaty made in 1760 between France and Sardinia, relative to the execution of judgments of the courts of one within the limits of the other, applied to every part of the new Italian state into which Sardinia had expanded. When a state is annihilated, as in the case of the Kingdom of the Netherlands, and two entirely new and distinct states are created out of its fragments, neither of which represents the defunct nationality, what then becomes of its obligations? From Grotius we learn that, where a state is divided, 'anything which may have been held in common by the parties separating from each other must either be administered in common or be ratably divided.' Chancellor Kent made that vague rule a little more definite when he said that if a state should be divided in respect to territory, its rights and obligations are not impaired; and if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common.' Phillimore, after quoting both Grotius and Kent, declared that if a nation be divided into various distinct societies, the obligations which had accrued to the whole, before the division, are, unless they have been the subject of a special agreement, ratably binding upon the different parts.' So far as Phillimore is concerned there is no basis for Hall's statement that 'it is difficult to be sure whether these writers only contemplate the rare case of a state so splitting up that the original state person is represented by no one of the factions into which it is divided,' because he limits his comments to a case in which a nation is 'divided into various distinct societies.' In that event he says that prior obligations, in the absence of special agreement, are 'ratably binding upon the different parts.' Or as Heffter (§ 25) has expressed it: 'Property rights and duties of an entirely extinguished state survive its dissolution, subject only to a change in their administration; in cases of partition they devolve proportionately upon each of the dismembered parts. To that extent it may be said that the treasury of the absorbing state succeeds absolutely to the rights and duties of the extinguished

one.' It may be true that new creations arising out of the annihilation of an older state, which they do not represent, are not legally bound to assume ratably a part of its general indebtedness,-that such obligation is purely a moral one. Whether moral or legal, the obligation of Holland and Belgium to bear ratably the general debt of the defunct Kingdom of the Netherlands was distinctly recognized and enforced in the treaty of 1839, in which the European Concert made an equitable settlement of all the interests involved." According to Westlake, an exception to the application of the principle that the successor assumes responsibility for the financial obligations of the extinguished state exists where a loan has been contracted for the purpose of the war, which rests in extinguishment or absorption. 1 Westlake, International Law, p. 78.

A contrary view is expressed in Oppenheim, International Law, $ 82.

The question under discussion is incidentally touched upon in the report of the Transvaal Concessions Commission, British State Papers, South Africa, 1901, as follows: "10. Though we doubt whether the duties of an annexing state towards those claiming under concession or contracts granted or made by the annexed state have been defined with such precision in authoritative statement, or acted upon with such uniformity in civilized practice, as to warrant their being termed rules of international law, we are convinced that the best modern opinion favors the view that, as a general rule, the obligations of the annexed state towards private persons should be respected. Manifestly the general rule must be subject to qualification; e. g., an insolvent state could not by aggression, which practically left to a solvent state no other course but to annex it, convert its worthless into valuable obligations. Again, an annexing state would be justified in refusing to recognize obligations incurred by the annexed state for the immediate purposes of war against itself; and probably no state would acknowledge private rights, the existence of which caused, or contributed to cause, the war which resulted in annexation.'" (Quoted from Wilson, International Law, p. 52.) E. S. O.

5 B. R. C.

[HOUSE OF LORDS.]

WEST LEIGH COLLIERY COMPANY, LIMITED, Ap

pellants,
and

TUNNICLIFFE & HAMPSON, LIMITED, Respondents.

[1908] App. Cas. 27.

Also Reported in 77 L. J. Ch. N. S. 102, 98 L. T. N. S. 4, 24 Times L. R. 146.

In assessing the damages recoverable by a surface owner for subsidence owing to the working of minerals under or adjoining his property, the depreciation in the market value of the property attributable to the risk of future subsidence must not be taken into account. To recover damages the surface owner must wait until the damage or injury caused by subsidence has happened.

Decision of the Court of Appeal, [1906] 2 Ch. 22, 75 L. J. Ch. N. S. 512, 94 L. T. N. S. 715, 22 Times L. R. 521, reversed; and decision of Swinfen Eady, J., [1905] 2 Ch. 390, restored.

(December 2, 1907.)

THE facts material to this appeal are stated in the judgments of Lord Ashbourne and Lord Macnaghten.

[28] C. A. Russell, K.C., and Jessel, K.C. (Leslie Scott with them), for the appellants. No cause of action arises until there has been an actual subsidence; and then compensation is due to the surface owner. Damages can be recovered every time that a subsidence happens. The mere apprehension of future subsidence, or the depreciation in the value of the property, is no element of damage. Otherwise compensation might be awarded more than once; there might be damages for an actual subsidence, plus the apprehension of a future subsidence, and then for that future subsidence when it happens. This is the doctrine laid down by Willes, J., in Bonomi v. Backhouse (1859) El. Bl. & El. 622, 654, and approved on appeal to this House (1861) 9 H. L. Cas. 503, 34 L. J. Q. B. N. S. 181, 7 Jur. N. S. 809, 4 L. T. N. S. 754, 9 Week. Rep. 769, 16 Eng. Rul. Cas. 216,

13 Mor. Min. Rep. 677. In Lamb v. Walker (1878) 3 Q. B. D. 389, 47 L. J. Q. B. N. S. 451, 38 L. T. N. S. 643, 26 Week. Rep. 775, Cockburn, Ch.J., in dissenting from the other judges, excluded mere apprehension, even amounting to certainty, from consideration. Cockburn Ch.J.'s view of the law was expressly approved in this House in Darley Main Colliery Co. v. Mitchell (1886) 11 App. Cas. 127, 55 L. J. Q. B. N. S. 529, 54 L. T. N. S. 882, 51 J. P. 148. Depreciation in value was also held not to be an element of damage in Battishill v. Reed (1856) 18 C. B. 696, 25 L. J. C. P. N. S. 290, and in Rust v. Victoria Graving Dock Co. (1887) 36 Ch. D. 113, 56 L. T. N. S. 216, 35 Week. Rep. 673.

Cripps, K.C., and Langdon, K.C. (F. L. Wright with them), for the respondents. The surface owner has a proprietary right to support, and compensation is due for subsidence and as often as there is a subsidence. But the subsidence involves a present deterioration in value, for which the surface owner is entitled to compensation. This is not covered by the damages payable on a second subsidence, for that subsidence is of an already diminished property. The original subsidence is of, say, property X; the subsequent one is of property X-Y, and unless Y is accounted for the owner suffers an injury for which he has received no redress. Compensation was allowed for the diminished value of property in Cowper-Essex v. Acton Local Board (1889) 14 App. Cas. 153, and the principle was recognized by Bowen, L.J., in Mitchell v. Darley Main Colliery Co. (1884) 14 Q. B. D. 125, 138, which was affirmed in this House. The question here is one rather of detail than of principle, and all that is contended for is that the present deterioration in selling [29] value brought about by a past subsidence is an element in the assessment of damages for that subsidence. C. A. Russell, K.C., in reply.

The House took time for consideration.

Lord Macnaghten: My Lords, I agree with Swinfen Eady, J., and the late Lord Justice Sir R. Romer.

I think that this case is concluded by authority. In my opinion. it is impossible to reconcile the judgment under appeal with the principles laid down in this House in Backhouse v. Bonomi