Page images

not withdraw that support without being liable in damages for any injury that might accrue to the plaintiff thereby.”

In Humphries v. Broyden, Lord Campbell referred to these two cases, and said :-“Where a house has been supported more than twenty years by land belonging to another proprietor, with his knowledge, and he digs near the foundation of the house, whereby it falls, he is liable to an action at the suit of the owner of the house. Although there may be some difficulty in discovering whence the grant of the easement in respect of the house is to be presumed, as the owner of the adjoining land cannot prevent its being built, and may not be able to disturb the enjoyment of it without the most serious loss or inconvenience to himself, the law favours the preservation of enjoyments acquired by the labour of ove man, and acquiesced in by another who has the power to interrupt them; and as, on the supposition of a grant, the right to light may be gained from not erecting a wall to obstruct it ih right to support for a new building erected near the extremity of the owner's land may be explained on the same principle.”

Io Gayford v. Nicholls, 9 Exch, 702, Parke B. (p. 708) observed, that the case before the court was not one “in which the plaintiff has the right of the support of the defendant's soil, either by virtue of a twenty years' occupation, or by reason of a presumed grant, or by a presumed reservation where both houses were originally in the possession of the same owner; for, unless a right of support by some such means can be established, the owner of the soil has no right of action against his veiglibour, who causes the damage by the proper exercise of his own right.' This observation would seem to imply that, if either of the cases mentioned could be established, the right of action would arise. Although in this case there happened to be adjoining buildings belonging to the plaintiff and defendant, yet it was not the support of building by building that was claimed, but the support of a yard wall by the defendant's soil. We mention this here, because otherwise it might be thought that Parke B., in his judgment, intimated an opinion that the right to the mutual support of house by house could be claimed by prescription, whereas there is no direct authority for such a proposition.

Assuming that a right to the support of the adjacent land has been obtained by the enjoyment of an ancient house, it appears that a condition is imposed upon the party entitled to such support, that he shall do nothing within the period requisite for couterring an easement which shall have the effect of increasing tie burthens imposed upon his neighbour (Gale, 225); and if, by excavating bis own soil, or by other acts, the person claiming the easement has weakened the support from his own soil, he has imposed an increased burthen on the land of his neighbour, which

there has been no ancient user to oblige the neighbour to submit to; and it follows, that if the damage would not have occurred but for the excavation, &c., no action would in such case lie, (Gale, 226.)

This is exemplified by the case of Partridge v. Scott (3 M. and W. 220), in which the plaintiff claimed support for the foundations of his houses by the subsoil of neighbouring land. Theru were two houses; one an ancient one, the other a modern one, and the soil under the surface on which the houses were built had been excavated by the owner of the surface. It was proved that the soil under the modern house had been excavated before that house was built; but there was nothing to show that the soil under the ancient house had not been excavated after the erection of that house. Alderson B. said—“Rights of this sort, if they can be established at all, must, we think, have their origin in grant. of a man builds his house at the extremity of his land, he does not thereby acquire any right of easement, for support or otherwise, over the land of his neighbour. He has no right to load his own soil, so as to make it require the support of that of his neighbour, unless he has some grant to that effect.

There are no circumstances in the case from which we can infer any such grant as to the new house, because it has not existed twenty years; nor as to the old house, because, though erected more than twenty years, it does not appear that the coal under it may not have been excavated within twenty years; and no grant can at all events be inferred, nor could the right to any easement become absolute, even under Lord Tenterden's Act, until after the lapse of at least twenty years from the time when the house first stood on excavated ground, and was supported in part by the defendant's land. If the law stood as it did before Lord Tenterden's Act (2 & 3 Will. IV., c. 71, s. 2), we should say that such a grant ought not to be inferred from any lapse of time short of twenty years, after the defendants might have been or were fully aware of the facts. And even since that act, the lapse of time, under these peculiar circumstances, would probably make no difference; for the proper construction of that act requires that the easement should have been enjoyed for twenty years under a claim of right. Here neither party was acquainted with the fact that the easement was actually used at all; for neither party knew of the excavation below the house. We should probably, therefore, have been of opinion that there was no user of the easer under a claim of right, and that Lord Tenterden's Act, therefore, would not apply in a case like this. However, the facts of this special case do not raise that point."


2 E


The right to the support of land, or of a house by neighbouring land, appears to stand upon the same footing as the right to the like support by adjoining land. In Brown v. Robins (4 H. & N. 186; 28 L. J. Ex., 250), land belonging to a third person intervened between the land of the plaintiff and that of the defendant. A house more than twenty years old, standing on the plaintiff's land, was injured by the subsidence of the surface, caused by the defendant working mines under his own land. The defendant was aware that, by working the mines under his land, and by withdrawing the pillars and ribs, the safety of the plaintiff's land would be endangered. The jury found that the subsidence was not caused by the weight of the plaintiff's house; and, under these circumstances, the court held that the plaintiff was entitled to the support of the neighbouring land. Pollock C. B. moreover said—“As to the right of support for the house quá house, if necessary to decide it, which it is not, I should be disposed to hold that the plaintiff was entitled to the support of the surrounding ground."

The right to the vertical support of the foundations of buildings by the underlying strata, would not, upon principle, seem to be a natural right. Watson B., however, in Rogers v. Taylor (2 H. and N., 828 ; 27 L. J. Ex., 173), appears to have been inclined to think that there is some distinction in this respect between the right to vertical and the right to lateral support; and that an owner of the surface of land is entitled to its support for buildings put upon it, even in the absence of a grant or a right by prescription for that purpose. Of the cases quoted by the learned judge in support of this view, Humphries v. Brogden was one; but in that case the question of support as to buildings was not alluded to, except only for the purpose of excluding it from consideration. Baron Parke's opinion in Harris v. Ryding, is apparently opposed to that of Baron Watson. In Jeffries v. Williams (5 Exch., 792) the question was not raised; and in Smart v. Morton (a case which, according to the report of Rogers v. Taylor in the Law Journal, was especially adverted to by Watson B.) the questions in dispute were regulated by deed between the parties. Again, in the case of Hilton v. Whitehead (12 Q. B., 734), the declaration alleged that the plaintiff "of right was entitled to, and of right ought to, have had his said dwellinghouse, &c., supported by the land between the same, and the mines of the defendant;” and the court was of opinion that the declaration was bad, for not stating the grounds on which the plaintiff was entitled to have his house so supported.

We apprehend, therefore, that the greater weight of authority

· Tle report of this case in the Law Jou. nal is inaccurate.

favours the view that the right to the vertical support of the foundations of buildings by the underlying minerals, is not a natural right, but one that may be acquired as an easement, in the like manner as the right to support of a building by adjoining soil may be acquired.

We must here call the reader's attention to the fact, that the report in the Law Journal of the judgment of Watson B., in Rogers v. Taylor, is totally different from that given in the authorized report of the case. We attribute no blame to the learned gentleman who reported the case for the former, for probably the judgment was delivered in the very words he has given; and, indeed, it is worthy of notice, that in nearly all the cases in which the courts take time to consider of their judgments, the reports of them in the Law Journal and in the authorized report are almost identical ; but in cases in which judgments are delivered off-band, there are frequent and important discrepancies, which may perhaps be accounted for on the supposition that the judgments themselves are altered upon reconsideration.

In dealing with these questions of the right to adjacent or subjacent support of a house, it must be borne in mind that there are cases in which, though the house be modern, damages may be recovered for an injury done to it by digging too near the common boundary. If the owner establishes his right to support for his soil, and the jury should be of opinion that the land would have fallen in in consequence of the digging, even had no additional weight been imposed by building, the value of the house falling with the land may be recovered as damage resulting from the principal injury, (Gale, 225; Brown v. Robins, ubi sup.)

There is no direct authority that the right to the support of a building, by an adjoining building, may be claimed simply by twenty years' enjoyment. In Peyton v. The Mayor of London (9 B. & C., 725), the question arose, but the declaration did not allege as a fact, that the plaintiffs were entitled to have their house supported by the defendant's house; nor did it, in the opinion of the court, contain any allegation from which a title 10 such support could be inferred as a matter of law, and the plaintiffs' case consequently failed.

But in Brown v. Windsor (1 Cr. and J., 20), it was proved that permission had been obtained in 1803, from the then owner of the defendant's house, to build against the wall of such house,

' In Jeffries v. Williams (5 Exch., 792), and Bibby v. Carter (4 H. and N., 153, S. C., 28 L. J. Exch., 182), it was held that the declaration, although it contained no averment of the right to support of a house by adjoining soil, yet disclosed a sufficient cause of action, because it did not appear in the declaration that the defendant was the owner of the adjoining soil, or entitled to avail himself of the rights of such owner.

and that the easement had been acquiesced in for twenty-seven years. Here the court held that the defendant could not alter his wall, so as consequentially to injure the plaintiff's house, without being liable for such injury. And in Richards v. Rose (9 Exch., 218), the court held, that where a number of houses are built at the same time by the same owner, the right of mutual support exists, either by a presumed grant or a presumed reservation ; so that the owner who sells one of the houses, as against himself, grants such right, and on his part also reserves the right.

We now come to the case of Solomon v. the Vintners Company. In this case, the plaintiff's house was not next adjoining to the defendants' house, but a house belonging to another person intervened between the two. The plaintiff's house leaned upon the intervening house, and the intervening house leaned upon the defendants' house. The defendants, by causing their house to be pulled down, occasioned the fall of the intervening house, which brought down the plaintiff's house with it. All the houses were ancient houses, and more than twenty years old. There was no evidence that the three houses ever were held under one title, or belonged to the same owner, or even that there was a community of roof between them, to constitute what is termed in civil law contignatio.

The Lord Chief Baron delivered the judgment of himself and Martin and Channell, B.B. After observing that, if the house removed had been the next adjoining the plaintiff's, their lordships would have felt much embarrassed by some cases and dicta ; and after referring to the cases of Stansell v. Jollard, Hide v. Thornborough, and Humphries v. Brogden, bis lordship said"It is extremely difficult to see how the circumstance of the houses having stood for twenty years makes any difference, or creates a right where houses are supposed to have been built by different adjoining landowners, each with its own separate and independent walls, but upwards of twenty years ago one of them got out of the perpendicular, and leaned upon, and was supported in part by, the others, so that if the latter were removed the other would fall. It cannot be a right by prescription, which supposes a state of things existing before the time of legal memory. Nor does it seein to us to be a right under the Prescription Act, 2 & 3 Will. IV. c. 71, which has been hitherto confined to rights in their nature of a perpetual and permanent character, and the ownership of which is in fee-simple. It seems to us that, in the absence of all evidence as to origin or grant, the only way in which such a right can be supported, is that suggested by Lord Campbell in Humphries v. Brogden, namely, an absolute rule of law similar to that which is stated to have existed in the civil law. But there is no authority for any such rule to be found; at least was stated


« PreviousContinue »