The majority opinion allows that to be done which will prove of incalculable injury to Edwards without benefiting Lee, who is asking that this injury be done. I must dissent from the majority opinion, confessing that I may not be able to show, by any legal precedent, that the opinion is wrong, yet having an abiding faith in my own judgment that it is wrong. *Page 798

It deprives Edwards of rights which are valuable, and perhaps destroys the value of his property, upon the motion of one who may have no interest in that which it takes away, and who could not subject it to his dominion or make any use of it, if he should establish that which he seeks to establish in the suit wherein the survey is sought.

It sounds well in the majority opinion to tritely say that he who owns the surface of real estate, without reservation, owns from the center of the earth to the outmost sentinel of the solar system. The age-old statement, adhered to in the majority opinion as the law, in truth and fact, is not true now and never has been. I can subscribe to no doctrine which makes the owner of the surface also the owner of the atmosphere filling illimitable space. Neither can I subscribe to the doctrine that he who owns the surface is also the owner of the vacant spaces in the bowels of the earth.

The rule should be that he who owns the surface is the owner of everything that may be taken from the earth and used for his profit or happiness. Anything which he may take is thereby subjected to his dominion, and it may be well said that it belongs to him. I concede the soundness of that rule, which is supported by the cases cited in the majority opinion; but they have no application to the question before the court in this case. They relate mainly to mining rights; that is, to substances under the surface which the owner may subject to his dominion. But no man can bring up from the depths of the earth the Stygian darkness and make it serve his purposes; neither can he subject to his dominion the bottom of the ways in the caves on which visitors tread, and for these reasons the owner of the surface has no right in such a cave which the law should, or can, protect because he has nothing of value therein, unless, perchance, he owns an entrance into it and has subjected the subterranean passages to his dominion.

A cave or cavern should belong absolutely to him who owns its entrance, and this ownership should extend even to its utmost reaches if he has explored and connected these reaches with the entrance. When the surface owner has discovered a cave and prepared it for purposes of exhibition, no one ought to be allowed to disturb him in his dominion over that which he has conquered and subjected to his uses. *Page 799

It is well enough to hang to our theories and ideas, but when there is an effort to apply old principles to present-day conditions, and they will not fit, then it becomes necessary for a readjustment, and principles and facts as they exist in this age must be made conformable. For these reasons the old sophistry that the owner of the surface of land is the owner of everything from zenith to nadir must be reformed, and the reason why a reformation is necessary is because the theory was never true in the past, but no occasion arose that required the testing of it. Man had no dominion over the air until recently, and, prior to his conquering the air, no one had any occasion to question the claim of the surface owner that the air above him was subject to his dominion. Naturally the air above him should be subject to his dominion in so far as the use of the space is necessary for his proper enjoyment of the surface, but further than that he has no right in it separate from that of the public at large. The true principle should be announced to the effect that a man who owns the surface, without reservation, owns not only the land itself, but everything upon, above, or under it which he may use for his profit or pleasure, and which he may subject to his dominion and control. But further than this his ownership cannot extend. It should not be held that he owns that which he cannot use and which is of no benefit to him, and which may be of benefit to others.

Shall a man be allowed to stop airplanes flying above his land because he owns the surface? He cannot subject the atmosphere through which they fly to his profit or pleasure; therefore, so long as airplanes do not injure him or interfere with the use of his property, he should be helpless to prevent their flying above his dominion. Should the waves that transmit intelligible sound through the atmosphere be allowed to pass over the lands of surface-owners? If they take nothing from him and in no way interfere with his profit or pleasure, he should be powerless to prevent their passage?

If it be a trespass to enter on the premises of the landowner, ownership meaning what the majority opinion holds that it means, the aviator who flies over the land of one who owns the surface, without his consent, is guilty of trespass as defined by the common law and is subject to fine or imprisonment, or both, in the discretion of a jury. *Page 800

If he who owns the surface does not own and control the atmosphere above him, he does not own and control vacuity beneath the surface. He owns everything beneath the surface that he can subject to his profit or pleasure, but he owns nothing more. Therefore, let it be written that a man who owns land does, in truth and in fact, own everything from zenith to nadir, but only for the use that he can make of it for his profit or pleasure. He owns nothing which he cannot subject to his dominion.

In the light of these unannounced principles which ought to be the law in this modern age, let us give thought to the petitioner Edwards, his rights and his predicament, if that is done to him which the circuit judge has directed to be done. Edwards owns this cave through right of discovery, exploration, development, advertising, exhibition, and conquest. Men fought their way through the eternal darkness, into the mysterious and abysmal depths of the bowels of a groaning world to discover the theretofore unseen splendors of unknown natural scenic wonders. They were conquerors of fear, although now and then one of them, as did Floyd Collins, paid with his life, for his hardihood in adventuring into the regions where Charon with his boat had never before seen any but the spirits of the departed. They let themselves down by flimsy ropes into pits that seemed bottomless; they clung to scanty handholds as they skirted the brinks of precipices while the flickering flare of their flaming flambeaux disclosed no bottom to the yawning gulf beneath them; they waded through rushing torrents, not knowing what awaited them on the farther side; they climbed slippery steeps to find other levels; they wounded their bodies on stalagmites and stalactites and other curious and weird formations; they found chambers, star-studded and filled with scintillating light reflected by a phantasmagoria revealing fancied phantoms, and tapestry woven by the toiling gods in the dominion of Erebus; hunger and thirst, danger and deprivation could not stop them. Through days, weeks, months, and years — ever linking chamber with chamber, disclosing an underground land of enchantment, they continued their explorations; through the years they toiled connecting these wonders with the outside world through the entrance on the land of Edwards which he had discovered; through the years they toiled finding safe ways for those who might come to view what they had found *Page 801 and placed their seal upon. They knew nothing, and cared less, of who owned the surface above; they were in another world where no law forbade their footsteps. They created an underground kingdom where Gulliver's people may have lived or where Ayesha may have found the revolving column of fire in which to bathe meant eternal youth.

When the wonders were unfolded and the ways were made safe, then Edwards patiently, and again through the years, commenced the advertisement of his cave. First came one to see, then another, then two together, then small groups, then small crowds, then large crowds, and then the multitude. Edwards had seen his faith justified. The cave was his because he had made it what it was, and without what he had done it was nothing of value. The value is not in the black vacuum that the uninitiated call a cave. That which Edwards owns is something intangible and indefinable. It is his vision translated into a reality.

Then came the horse leach's daughters crying: "Give me," "give me." Then came the "surface men" crying, "I think this cave may run under my lands." They do not know they only "guess," but they seek to discover the secrets of Edwards so that they may harass him and take from him that which he has made his own. They have come to a court of equity and have asked that Edwards be forced to open his doors and his ways to them so that they may go in and despoil him; that they may lay his secrets bare so that others may follow their example and dig into the wonders which Edwards has made his own. What may be the result if they stop his ways? They destroy the cave, because those who visit it are they who give it value, and none will visit it when the ways are barred so that it may not be exhibited as a whole.

It may be that the law is as stated in the majority opinion of the court, but equity, according to my judgment, should not destroy that which belongs to one man when he at whose behest the destruction is visited, although with some legal right, is not benefited thereby. Any ruling by a court which brings great and irreparable injury to a party is erroneous.

For these reasons I dissent from the majority opinion. *Page 802