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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 rem; 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 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
requires, and by which, if a man loses in one direction, he gains in another. The extent to which such easements will be attributed by the law, and the manner in which they will be secured, should be laid down in a code of building regulations, which will naturally be more minute than, and in some respects different from those of the French Code, but for which the clear and simple provisions of that code will form something like a model. Moreover, it serves no useful purpose to go back for the origin of such rights to “the beginning,” or to derive them from the “ bounty of Providence." Nor is it necessary to have recourse to any of the principles handed down to us by the Roman Law. These principles are not in all respects suitable to the wants of the nineteenth century. The legislative authority of Parliament is strong enough to establish such rights on a firm basis. Judges have done their best to put the law on a reasonable footing and have failed. A good Parliamentary Committee, well advised by persons of skill and experience, could, I believe, easily settle the matter.
III.-ON THE SIMPLIFICATION
SIMPLIFICATION OF THE MARRIAGE LAWS OF THE UNITED KINGDOM.
subject of Marriage, and we recur to some different aspects of it in the present number. The latter part of our former essay was principally devoted to the question whether in English law the contract of marriage was civil or religious. We endeavoured to show that though the Church claimed to hold this contract in her holy keeping,
Law Magazine and Review, No. CCXXXI., February, 1879.