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if a man were interrupted in signing a deed by which his property was to be conveyed.
Another error of language, less mischievous, but still one which it is desirable to remove, is the assertion that the right to the support of your own house by your neighbour's premises is not a right of property. It is difficult to conceive what definition could be given of rights of property which would exclude such a right as this. The right of support, if it exists at all, is, to use the expressive language of the Roman Law, a jus in re alienâ, and it is also a jus in vem; or, combining the two phrases into one, it is a right over a thing available against all the world. Is not every such right a right of property? I think everyone would say so who was not blindfolded by the English cases. The Judges, who use this language, do not say what in their view constitutes a right of property; but whilst they admit that the support of land unencumbered by buildings is a right of property, they say that a similar right if the land be built upon is not. The ground for this distinction seems to be the notion that the former right existed from the
beginning," an expression which, as I understand it, is not equivalent to “time immemorial,” or the commencement of the reign of Richard I., but throws us back to the date of the last great geological change. I gather also from one of the judgments that Lord Wensleydale applied another test to rights of this kind, "that they were bestowed by Providence for the common benefit of man.” To my mind this is a sorry mode of eking out a legal argument. Supposing it to be correct to assert that Providence did bestow the right of support of unencumbered land for the common benefit of man, how does that prove that the right of support in this case is a right of property, and that in the case of encumbered land it is not? This is another instance of confusion in the use of language. What is really meant is this: that the right to support is, in the case of unencumbered land, attributed by the law without
any proof of its acquisition; whereas, the right to support of encumbered land is not attributed by the law, but must be shown to have been acquired. That is what is meant, and so stated the assertion is intelligible. This is the phraseology in similar cases of both the French and Italian Codes.
There is, however, one difficulty connected with this subject which I am bound to admit that mere verbal correction will not altogether remove. The Lord Chief Justice Cockburn, in his judgment in the Court below (L.R. 3 Q.B.Div. 85), insisted very strongly that if the right was one which practically could not be obstructed, it could not be acquired by enjoyment, for the reason that the most vigilant owner would thus be exposed to have his rights curtailed at the will of his neighbours. The Lord Chief Justice also considered that obstruction of the enjoyment of the right of support, when the dominant owner had exceeded, what I may call for want of a better expression, the natural right, was practically impossible. That is to say, he considered it practically impossible for a man to dig away his own soil so as to take away the support from his neighbour's house, as soon as his neighbour began to lean too much upon him. Most people, I imagine, will agree with the Lord Chief Justice. But supposing we do not go so far. Why on earth should people be driven into doing anything so selfish and unneighbourly? No one wants to do anything of the kind, and a rule of law which brought about any such result would be most disastrous. Everyone has probably seen in various parts of the suburbs of London half-a-dozen boards nailed to the top of two poles, and placed so near a neighbouring window as to exclude all light from entering it. This melancholy object might serve as a monument to the author of the Prescription Act, to whom we are indebted for it. The ground which is overlooked is generally occupied by cabbages, sometimes it is not occupied at all, and only lies
waiting for a builder to take it. No one's privacy, or convenience, or comfort would be interfered with by the window in question, if the view from it were wholly unobstructed, and a gloomy chamber would, for a time at least, be rendered more cheerful. But no prudent owner dare allow this. Parliament has decreed, that if this window remains unobstructed for twenty years, a considerable strip of the adjoining ground shall become for ever useless to the owner; that is to say, it cannot be applied to the only purpose for which it is really suitable, namely, for being built on.
Savigny, by no means an impulsive lawyer, calls such a state of things monstrous, and not being embarrassed by the Prescription Act, proceeds to examine whether upon true principles of law a negative easement is gained merely because the adjoining owner has not interrupted its enjoyment. The argument is well known, and I need not repeat it here. He comes. to the conclusion that the right is not gained.
It is not necessary for me to say whether Savigny's conclusion is right or wrong. English Judges seem to be divided upon the point, some thinking that negative easements can be so gained, and others that they cannot ; others again thinking that some negative easements can be so gained, but not all. As regards light the
As regards light the question has been settled in England by statute in favour of the acquisition, whilst by the two codes which I have already had occasion to refer to the question is settled the other way. I do not think a solution of this question in the sense of the Prescription Act can be considered a satisfactory one. Even if Savigny be wrong in his law, there is at least good sense in his observation that a man ought not, merely by building a house, to put himself in the way of gaining numberless easements against all his surrounding neighbours, who (I assert again), are practically powerless to prevent the acquisition. Fancy what would happen if in a crowded
town, when a man added a new storey to his house, his neighbours began to “ interrupt” his enjoyment of the various easements incident to such a building. They would have to treat him as bees are said to treat an intruder into their hives—they would have to enclose him in a kind of shell or cylinder impervious to the light, at the same time digging a trench all round his foundations. Indeed, I am not sure that, in theory, this trench ought not to be dug so as just to let down the new building. Anyhow it is an operation requiring the nicest mechanical calculations, and probably rendering it necessary to pull down and rebuild many of the adjoining houses. If this is practicable, I still ask, is it desirable ?
But I admit that the rigid application of the other alternative, namely, that even an enjoyment from time immemorial will not confer the right to a negative easement, would scarcely seem to be acceptable to English people. Sometimes it happens that a small house, which has been comfortably lighted and ventilated for perhaps a hundred years, is about to be rendered almost unfit for habitation by a huge building planted at its side. I am afraid that no arguments which Savigny or any other lawyer could produce would persuade English people that there was in this no injury which the law ought to redress; and if people think that this ought to be the law, they have a right to make it so. But no power on earth can make the acquisition of negative easements conform to the principles of acquisition founded upon user. The easements of light, and air, and of support, if not created by a real agreement, express or implied, ought, to the extent desired, to be attributed by the law, and rendered entirely independent of acquisition by enjoyment. Acquisition by enjoyment in cases where enjoyment cannot be interrupted is a far less satisfactory expedient, and not a whit more just, than giving to all men, without enjoyment, a fixed and modified right to certain easements which everybody
With the standard works of Davidson and Prideaux already in possession of the field, there might seem at first sight to be hardly room for these two goodly volumes of Messieurs Key and Elphinstone; but an examination of the work has convinced us that it really supplies a mass of fresh material which every conveyancer will find a most useful addition to his library. The forms are far more numerous than the precedents which are drafted by way of reference to them. They are professedly “modelled mainly upon those in general use among conveyancers of the modern school," whose characteristic is clearness and conciseness, as distinguished from the prolixity and verbosity of the older generation; and in many cases both concise and full forms are given. Both the precedents and forms have evidently been selected with much discrimination, and are carefully and accurately edited. By making use of the ordinary contractions much space has been saved, so that the Compendium at the same time covers a very wide range, and is yet kept within convenient limits. The notes are very short, but practical and to the point, and references are given to “ Davidson's Precedents," and other works on conveyancing, for fuller information on the law and practice. We can thoroughly recommend the book to both branches of the profession, but more especially to Solicitors, who will find it a valuable aid for ready use in all ordinary conveyancing practice.
A Digest of the Hindu Law of Inheritance and Partition, from the Replies of the Shastris in the Bombay Presidency. Second Edition, with Introductions, Notes, and Appendix, by RAYMOND West and JOHANN GEORG BÜHLER. Bombay Education Society's Press. 1878. (London : Trübner.)
We have here what will, we cannot doubt, prove a useful addition to the library both of judges and magistrates, and members of the Bar in India, and of counsel engaged in Indian cases before the Privy Council. Messrs. West and Bühler present us with a goodly volume of “ Responsa Prudentum" from Western India, devoted to an important and often perplexing branch of law. In fulfilling their functions as editors they have added remarks wherever the “Responsa" seemed to require annotation, discussion, or explanation. Their references, in the excursuses which they prefix to all the principal divisions of the work, cover a wide area of Indian and European writers on the subjects with which they have to deal.