HOUSE OF LORDS
HOUSE OF LORDS
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|HENRY ANGUS & CO.
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|THE COMMISSIONERS OF HER MAJESTY'S
WORKS AND PUBLIC BUILDINGS
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|HENRY ANGUS & CO.
The Judges desired time to consider, and on the 17th of March, 1881, delivered the following opinions:-
"The earliest case which has any bearing upon the question is that of Slingsby v. Barnard (14th James I.)(3). The Court gave judgment in favour of the right of support, although the house in respect of which it was claimed was not an ancient house, but had been only recently built. This, although not referred to,
must be considered to have been overruled by the case which followed it of Wilde v. Minsterley (15 Charles I.)(1), where it is said, "If A ., seised in fee of copyhold land next adjoining land of B ., erect a new house on his copyhold land, and part of the house is erected on the confines of his land next adjoining the land of B ., if B . afterwards digs his land near to the foundation of the house of A ., but not touching the land of A ., whereby the foundation of the house and the house itself fall into the pit, still no action lies at the suit of A . against B ., because this was the fault of A . himself that he built his house so near to the land of B .; for he could not by his act hinder B .from making the most profitable use of B.'s own land." The cases are not of much value as establishing any principle, but they are not unimportant as shewing that the attention of the Courts was called to the question at this early date, and as thereby affecting the value of more recent decisions. Palmer v. Fleshees (15 Carles II.)(2), cited in Comyns' Digest(3), was an action for the obstruction of the Plaintiff's lights; but the Judges in their first resolution say "that if a man, being seised of land leases forty feet to A . to build a house thereon, and forty feet to B . for a like purpose, and one of them builds a house and then the other digs a cellar in his land which causes the wall of the first adjoining house to fall, no action will lie, for every one may deal with his own to his best advantage, but semble, that it would be otherwise if the wall or house were an ancient one." In Stansell v. Jollard (1803), Lord Ellenborough directed the jury that "where a man has built at the extremity of his land, and has enjoyed his building above twenty years, by analogy to the rule as to lights, & c., he has acquired a right to support, or, as it were, of leaning to his neighbour's soil, so that his neighbour cannot dig so near as to remove that support; but it is otherwise of a house newly built." This case is referred to in Selwyn's Nisi Prius, 9th Edition, upon the authority of Lawrence , J., also by Mr. Smith in his Leading Cases in the notes to Ashby v. White(4), and by Mr. Gale in his work on Easements as from a manuscript note(5). In Hide v. Thornborough (1846)(6), Parke ,B., cited Stansell v. Jollardas law, and ruled that if there were twenty years enjoyment by the Plaintiff of the support of the house from the Defendant's land, and it was known that the Defendant's land supported the Plaintiff's house, that is sufficient to give him a right of support. Both these cases were cited as authorities by Lord Campbell in Humphries v. Brogden(7). In Wyatt v. Harrison(1832)(8), the plaintiff, who claimed a right of support to his house was held to fail, because it was not an ancient house; but Lord Tenterden in giving judgment says: "Whatever the law might be, if the damage complained of were in respect of an ancient messuage possessed by the Plaintiff at the extremity of his own land, which circumstance of antiquity might imply the consent of the adjoining proprietor, at a former time, to the erection of a building in that situation, it is enough to say in this case that the building is not alleged to be ancient, but may, as far as appears from the declaration, have been recently erected, and if so, then, according
to the authorities, the Plaintiff is not entitled to recover." Partridge v. Scott(1838)(1), was a case in which the Plaintiff claimed a right to support for two houses. As to one of these, it was not an ancient house, and the Court, therefore, decided against the right claimed. As to the other, it had been built by the Plaintiff on ground which had been so excavated as not to afford sufficient support to the house; and, therefore, as was said by the Court, the Plaintiff had caused the injury to himself without any fault on the part of the Defendants. The judgment, however, of the Court, which was delivered after consideration, is of importance, because, as is noticed by Thesiger , L.J., in his judgment below, it affirmed in substance two propositions: first, that the second house, being an ancient house, would, but for the excavation of the soil upon which it stood by the Plaintiff himself, have acquired an easement of support by virtue of an implied grant; secondly, that, apart from the Prescription Act , such a grant might have been inferred from an enjoyment of the house, although standing upon the excavated soil, for twenty years after the defendants might have been or were fully aware of the facts. The judgment, therefore, seems to assume that, in the case of a house standing upon soil in its ordinary condition, the servient owner has sufficient notice of the fact of support being enjoyed to raise the presumption of acquiescence, and the consequent implication of a grant by him, when the enjoyment has continued for twenty years. In Humphries v. Brogden(1850)(2), the question of disputed right was between the occupier of land unbuilt on and the occupier of subjacent minerals; but in the considered judgment of the Court delivered by Lord Campbell, he reviews the authorities which relate to the right of support gained by houses, and referring to the cases of Stansell v. Jollard(3) and Hide v. Thornborough(4),distinctly lays it down that "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." In Gayford v. Nicholls (1854)(5), the Plaintiff's houses being modern, they had gained no right of support, but in giving judgment Parke , B., assumes that had they stood for twenty years it would have been otherwise, for he says, "This is not a case in which the Plaintiff has the right of the support of the Defendant's soil, 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 neighbour who causes the damage by the proper exercise of his own right." In Rowbotham v. Wilson (1857)(6), the Queen's Bench, Exchequer Chamber, and your Lordships' House were all of opinion that the question of general right was excluded by reason of both Plaintiff and Defendant claiming under predecessors whose rights were governed by the express terms of an award; but the questions before the Court involved the right to the support of houses by adjacent land, and in dealing with this some of the Judges seem to have considered the existence
of such a right after a house has stood for twenty years as settled law. I shall have occasion to refer to what they say more fully when considering the mode in which such a right is acquired. In Rogers v. Taylor(1858)(1), a right similar to that claimed by the Plaintiff in the present case was alleged in the declaration and denied by the plea. At the trial the late Lord Chief Justice Cockburn told the jury that he thought at the end of twenty years after the house had been built the Plaintiff would have acquired a right to support, unless in the meantime something had been done to deprive him of it, and that the jury must presume that the additional burden was put upon the Plaintiff's land by the assent of the adjoining owner, and a grant by such owner of a right of support. He left it to the jury to say whether the Plaintiff had enjoyed the support for the foundations of his house for twenty years. The jury found that the Plaintiff had enjoyed the right of support for his house on the foundations on which it stood without interruption for twenty years. This finding was treated as a verdict for the Plaintiff, and both the ruling and the verdict were upheld by the Court of Exchequer, upon the ground that the Plaintiff's house had stood for more than twenty years."
"The most recent and the most important of the decided cases bearing upon the subject is undoubtedly that of Bonomi v. Backhouse (1858)(2), which came before the Court of Queen's Bench upon the argument of a special case, whereby it appeared that certain messuages and buildings in the declaration mentioned had been in existence for more than forty years without sustaining injury, that they were firmly supported by mines, earth, and soil underground contiguous and near to and under the land of the Plaintiffs, and that the Defendant who had become the occupier of coal mines under and immediately adjoining the Plaintiffs' buildings, had so worked the coal as to remove pillars under land distant about 280 yards from the Plaintiffs' property, whereby the roof of the Defendant's mine fell down and subsided so as to produce a thrust, the effect of which gradually extended laterally to the land upon which the Plaintiffs' houses were built and whereby they were ultimately let down and injured. The main question, which was decided by the Exchequer Chamber and by your Lordships' House(3) in favour of the Plaintiff, was that with reference to the the Plaintiffs' right of action accrued not when the coal was extracted by the Defendant from underneath his own land, but when the Plaintiffs' buildings were first injured. The Plaintiffs' right of support for his buildings was however clearly raised by the case as stated, and was considered and dealt with by the Judges who heard the arguments and also by some of the noble and learned Lords before whom the appeal came in this House. Wightman , J., in the Court of Queen's Bench, says: "Upon consideration of all the cases, it appears to me that the cause of action, in such a case as the present, is founded upon a breach of duty on the part of the Defendant by so using his own property as to injure that of his neighbour, and not upon any right of the Plaintiffs to an easement in, upon, or over the land of their neighbours. Where ancient buildings are standing upon the Plaintiffs' land, the Defendant must take care not to use his own land in such a manner as to injure them. The language used in
some of the cases is not very clear, but it appears to me that the cases of Wyatt v. Harrison(1); Chadwick v. Trower(2) in Exchequer Chamber, reversing the judgment of the Common Pleas in Trower v. Chadwick(3); Partridge v. Scott(4); Roberts v. Read(5); and the older cases of Slingsby v. Barnard(6);Aldred's Case(7), and the opinions expressed by the Judges in giving their judgment in the case of Rowbotham v. Wilson(8) in the Exchequer Chamber affirming the judgment of the Queen's Bench in Rowbotham v. Wilson(9)in the Exchequer Chamber at the sittings after last Trinity Term, are authorities to shew that the right claimed by the Plaintiffs is not a right founded upon the presumption of a grant or easement, but is the common right of an owner of land not to be injured in his property by the way in which the Defendant uses his, according to the two maxims of the law, ',' and '.'" Willes , J., in delivering the judgment of the Court of Exchequer Chamber, said: "The right to support of land and the right to support of buildings stand upon different footings as to the mode of acquiring them, the former being primâ facie a right of property analogous to the flow of a natural river or of air: Rowbotham v. Wilson(8); though there may be cases in which it would be sustained as matter of grant (see the Caledonian Railway Company v. Sprot (10)), whilst the latter must be founded upon prescription or grant, express or implied, but the character of the rights, when acquired, is in each case the same." In the House of Lords the Plaintiffs' right to recover, subject to the Statute of Limitations , seems to have been taken for granted, and that the interference with the house, as well as with the land, was present to the minds of the noble and learned Lords who were present, is obvious from what fell from them. Lord Westbury , L.C., in giving judgment, says, "I think it is abundantly clear, both upon principle and upon authority, that when the enjoyment of the house is interfered with by the actual occurrence of the mischief, the cause of action then arises." Lord Cranworth also said, "It has been supposed that the right of the party whose land is interfered with is a right to what is called the pillars or the support. In truth, his right is a right to the ordinary enjoyment of his land." And Lord Wensleydale adds, "I think it is perfectly clear that the right in this case was not in the nature of an easement, but that the right was to the enjoyment of his own property, and that the obligation was cast upon the owner of the neighbouring property not to interrupt that enjoyment."
"If these cases and dicta are dealt with individually, and subjected to a close criticism, many of them are no doubt open to objections such as that in some the facts are not so fully stated as might now be desired; in others, the exact character of the legal right said to be affirmed and the mode of its acquirement are not fully or accurately dealt with, nor is the right always based upon the same grounds. But in considering these objections, it must be remembered that the
difficulties presented are essential to the gradual growth and development of all our unwritten law, of which this is only an instance, and further, that the enjoyment of every right which is established not by statute but by a long course of judicial decisions and dicta , would be open to attack if such a remark were allowed unduly to prevail. The substance and practical effect, therefore, of all that has gone before must be kept in view, especially in a case in which it is obvious that, having reference to the subject-matter with which the Courts were dealing and to the rights of the parties affected, the law laid down from time to time must have practically influenced the position of all who were interested in buying, selling, leasing, or building upon land within or near to towns and elsewhere wherever the land was available for building purposes, all of whom might well act and in many cases must have acted upon the supposition that they had acquired rights in accordance with the law so expounded."
"Two points relating to this part of the cases were strongly urged on behalf of the Defendants. First, it was said that the right which is claimed in the present case for the support of a house had never been treated as a natural right, such as exists where soil unbuilt on is supported by the soil of an adjoining owner; and, secondly, that failing any natural right, there are only three modes known to the law whereby such a right can be created, namely, by express grant, by prescription evidenced by acquiescence, or by an implied grant, the latter of which has commonly been presumed in those cases in which the right claimed has been long enjoyed. These two questions may properly be dealt with together, because, in truth, the considerations which affect the nature of the right, and the mode by which it may be acquired in law are necessarily interwoven; and here it may be well to advert to the language used by Lush , J., in his ruling at the trial of this case, where he does not lay down, that the right claimed by the Plaintiff is a natural right, as in the case where soil is supported by soil, but he uses this language: "I think it has become absolute law that where a building has stood for twenty years supported by adjacent soil, it has acquired a right to the support of the soil." On behalf of the Plaintiff it was argued before your Lordships that this must be taken as a rule of law not resting upon fiction or upon implied grant, but as a right of property, namely, an enjoyment of support which after twenty years becomes indefeasible in the same manner as the occupier of land may, by bare possession for a sufficient period of time, acquire a good title; and further, that the right which is acquired by the Plaintiff as attaching to his house is a right which restricts his neighbour, not from using or moving his own land, but from so using or moving it as to injure the Plaintiff's house. The proposition thus asserted appears to me to put the right of the Plaintiff upon a reasonable foundation, and if affirmed by your Lordships it would lay down an intelligible rule of law freed from difficulties which obviously present themselves whenever, with a view consistently to uphold what after all is merely technical, it has been endeavoured to rest the right in question upon a supposed actual grant which has been lost, or upon the production of evidence, great or small in degree, tending to shew a supposed de facto acquiescence in the building of the house by the neighbour whose land supports it, either of which involves a supposition so improbable as to make it repugnant to good sense, and therefore one upon which it is most undesirable that Judges and juries should act."
"There is, however, authority in support of the view which I have taken; not only is it said by Willes , J., in Bonomi v. Backhouse(1)that the character of the right of the owner of a house to support when acquired is the same as the right of the owner of soil unbuilt upon, but in Humphries v. Brogden(2) Lord Campbell , in delivering the judgment of the Court, says: "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 one 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, the right to support for a new building erected near the extremity of the owner's land may be explained on the same principle." Parke , B., also, in the passage which I have already cited from his judgment in Gayford v. Nicholls(3),treats the right of support gained by a house which has been built for twenty ears as depending upon something distinct from such a right gained by a presumed grant or reservation. So also in Rowbotham v. Wilson, Bramwell , B., during the argument(4),asserts that after a house has stood for twenty years it acquires a right to support from the adjoining land; upon which Serjeant Hayes, arguendo , says, "That is an incident which the law then annexes, it is sometimes said to be founded on a presumed grant, but that after all is a mere fiction;" and Cresswell , J., adds: "I always thought that would turn out to be a matter of positive law, like the light acquired by constructing a window." In the same case Watson , B., commencing by dealing with the right to support of soil by soil, says: "If, by digging, the adjoining land is let down the right to compensation is on the ground that the adjoining owner could not use his own land to the prejudice of his neighbour, not on the ground of the disturbance of an easement (2 Roll. Abr. 564, Trespass (I.) pl. 1). The course of precedents shews this, for it is not necessary to allege, in such case, that the Plaintiff had the right to support: Earl of Lonsdale v. Littledale(5), and the declaration and judgment in Humphries v. Brogden(6); with this distinction, that the right to support to a building upon the land is acquired by twenty years existence, whereas the land is entitled to support in its original state." The observations of Bramwell , B., in his judgment(7),if they are to be considered as referring to the Plaintiff's houses as well as to his land are to the like effect. In confirmation of this view I would refer also to those portions of the judgments in Bonomi v. Backhouse which I have already cited. If I am right in supposing that the proposition which I have asserted in answer to your Lordships' question is established by legal decisions, it would not be necessary at this period of time to scan very closely the reasons upon which those decisions were based; but when the subject matter is looked at from a point of view which considers the rights of the community as well as those of individual owners, the grounds in favour of allowing a right of support to be acquired by building
appear to me to preponderate over those that can be urged to the contrary. It was said by Willes , J., in Bonomi v. Backhouse(1): "The law favours the exercise of dominion by every one upon his own land and his using it for the most beneficial purpose to himself." In Rogers v. Taylor(2), to which I have already referred, Martin , B., in the course of the argument asks, "Has not a man reasonably using his land a right to support for it?" In my judgment such a right may and ought to attach to the ownership of all land, it being no more than the right of the owner to adapt his land to one of the common and usual requirements of mankind."
"In the arguments of counsel and also in the judgments in the Courts below, the cases which deal with the right gained by prescription for ancient lights were referred to and fully discussed. I forbear to follow these; partly because all that can be said with respect to them appears to have been thoroughly exhausted, and also for this further reason, most of the cases which relate to the doctrine of lights were decided upon the Prescription Acts; and even where this is not so, the right which is gained by the owner of a house in respect to lights is of so peculiar a character that it does not appear to me to afford much useful analogy when dealing with the right to support. Two observations, however, with regard to the case of lights have some bearing upon the present question. It is said that no right can ever be gained except where the owner of the servient tenement could prevent the act done by the owner of the dominant tenement whereby the right is alleged to have been acquired, or could have brought an action in respect of it, and that it is the forbearing to interfere with the exercise of the right, or to bring an action in respect of it, which leads to the inference of acquiescence, whence an implied grant may be presumed. In cases of affirmative easements, such as the user of a footpath, this is undoubtedly true. If, however, it is attempted to apply the same rule to the case of lights where the right acquired is of a negative character considerable difficulty arises, because, although in many cases the owner of a house or land may prevent his neighbour acquiring a right to lights by blocking them without putting himself to any great expense or inconvenience, there are other cases, such as where the windows are at a great height from the ground, in which the expense or inconvenience of blocking windows would practically be as great or almost as great as would attend upon the excavating of land in such a manner as to prevent a neighbour who builds acquiring a right of support; and looked at from this point of view such analogy as does exist between the two cases appears to me rather to favour the view of the Plaintiff when he asserts that such a right as he claims may be obtained without any actual acquiescence by the Defendant; and it is quite clear that in case of lights the right is not the less gained by the owner of the dominant tenement, because the owner of the servient tenement has forborne any right of action against him, for although the owner of the servient tenement may in some cases prevent the growth of the right by blocking the windows, in no case could he bring an action against his neighbour because they had been opened. The second observation which points to the same conclusion is that the mode of acquiring a right to light cannot be properly compared to the mode by which a right of way is acquired. The latter can from its very nature only be acquired by user accompanied
with the consent of the owner of the land over which the right of way is claimed. The former is acquired by mere occupancy. This was pointed out by Littledale , J., in his judgment in Moore v. Rawson(1),and the distinction which he draws has been frequently acquiesced in and was mentioned with approval by Willes , J., in Bonomi v. Backhouse(2), and by Wightman , J., in Webb v. Bird(3)."
"If but little assistance can be gained by referring to the rights which the law has affirmed in favour of ancient lights, still less in my opinion is afforded by reference to the cases cited by counsel for the Defendants of Webb v. Bird(4)where the owner of a windmill which had been erected more than twenty years claimed the right of the passage of air to it uninterrupted by his neighbours; and Bryant v. Lefever(5) in which the owner of a chimney complained of the owner of adjoining land for rebuilding a wall of greater height than it had been for twenty years, and thereby causing him annoyance by smoke. There is really no parallel between those cases and that before your Lordships, and the view I take of the present case is in no way affected by them. I notice them only to shew that they have not been overlooked."
"As to the second question the period during which the Plaintiffs' house has stood will be found in par. 4 of the Respondents' case, where the effect of the evidence at the trial is given as follows: "It was proved that both the factory of the Plaintiffs, and the house pulled down by the Defendants, were ancient buildings, both of which had been formerly, and for a period long exceeding twenty years before 1849, used as dwelling-houses; that there was no party wall between them, but that they were divided by a wall which belonged to the house pulled down by the Defendants; nor was there any cellar under the latter; that since the year 1849 there had been no alteration in the Plaintiffs' premises, but that in that year their predecessors openly, notoriously, and without concealment converted the same into a coach factory, in which their business had been since that time so openly carried on." Under these circumstances, I am of opinion that the period during which the Plaintiffs' house has stood at the date of the acts done by the Defendants which are complained of by the Plaintiffs was sufficient to give them the same right as if the house was ancient. The law upon this point cannot be more clearly summarised than it was by Lush , J., in his judgment in the Court below, where, starting with a period down to James I., he says:(6)"Theoretically, an ancient house at this period was a house which had existed from the time of Richard I. Practically, it was a house which had been erected before the time of living memory, and the origin of which could not be proved. But it afterwards came to be settled law that an uninterrupted possession of light, water, or any other easement for twenty years afforded a ground for presuming a right by grant, covenant, or otherwise, according to the nature of the easement; and, if there was nothing to rebut the presumption, a jury might and should be directed to act upon it." This view is amply borne out by the note of Serjeant Williams in 2 Wms. Saund. 174, and the cases there cited, and
by the other authorities which are alluded to by Lush , J., in his judgment below. The presumption arising from twenty years enjoyment cannot, no doubt, be treated as conclusive, that is, as a , which is not to be rebutted by evidence; it is conclusive only when the evidence of enjoyment is uncontradicted and unexplained. Thus it might be shewn that no grant could have been legally made by the owner of the servient tenement, as was the case in Barker v. Richardson(1), where lights had been enjoyed for more than twenty years over land which during part of that time had been glebe land. It was held there that a grant could not be presumed, inasmuch an the rector being only tenant for life was incompetent to grant such an easement. In the present case, however, on evidence appears to have been offered on the part of the Defendants to contradict or explain the user by the Plaintiffs which ought to have been submitted to the jury. For the reasons which I have already given, evidence which merely shewed that there had been no actual acquiescence by the Defendants would have been irrelevant."
"In answer to the third question, I say that it is not necessary to prove that the defendants or their predecessors in title had knowledge or notice of the alterations, in order to make the injury to the Plaintiffs' building by removing the lateral support after the lapse of twenty-seven years an actionable wrong. The alterations made by the Plaintiffs in 1849 amounted merely to the conversion of that which had been a dwelling-house into a coach factory, and no evidence was adduced to shew that these alterations had been done otherwise than openly, and in the usual manner of building applicable to such an object. It appears to me, therefore, that what was done by the Plaintiffs was that which they might lawfully do for the purpose of improving their premises and using them in the manner most advantageous to their business: and that, therefore, the relations between themselves and the Defendants in respect to such alterations and any additional weight or further onus upon the Defendants occasioned by them, are to be looked at in precisely the same light as id the building of the Plaintiffs had been originally constructed as a coach factory, and not as a dwelling-house; or as if in 1849 the Plaintiffs had pulled down their dwelling-house and built a coach factory on its site; or as if there having been no dwelling-house or building until 1849 the Plaintiffs had built for the first time a coach factory in the form in which it stood after the alterations that were made by them at that date. Under these circumstances it becomes unnecessary for me to deal with the arguments which were addressed to your Lordships' House at the Bar, arising out of the distinction which was taken between the original dwelling-house and the alterations that were made in 1849."
"The mode in which I have answered the third question renders it unnecessary for me to answer the fourth question."
"In conclusion, I answer the fifth question submitted to us by your Lordships by saying that the course taken by the learned Judge at the trial of directing a verdict for the Plaintiffs was correct, and that he ought not to have left any question to the jury. Had any question been raised by the Defendants at the trial with regard to the facts which were given ti evidence, it would have been the duty of the learned Judge to take the opinion of the jury upon these facts,
but no such question was raised, and the facts were substantially admitted by both sides. Under these circumstances the only matter which remained for decision was, what was the proper legal result of those facts; and, assuming the view which I have taken to be right, the course adopted by the learned Judge of directing a verdict for the Plaintiffs was correct and in accordance with what has usually been done by Judges on similar occasions, with this exception, that instead of resorting to fiction and directing the jury that they ought to find a lost grant of support as a matter of fact, Lush , J., told them that the Plaintiffs were entitled to the verdict as a matter of law, and directed them to find accordingly."
"It is clear that these rights and burdens come into existence by implication of law at the very moment of severance. They are unquestionably known as "natural rights," and require no age to ripen them. The same origin is, I think, to be ascribed to rights and burdens of a similar character existing in respect of flowing water. It happens that land allotted in severalty is bounded by a natural river, and when that is the case the implied terms are imposed upon the owner of that land and upon all other owners of other lands bounded by the same
stream, that each one is entitled to have the flow continue in its natural course and channel for the natural use and benefit of all, and is subject to the like burden of not interfering with that flow to the prejudice of any. Besides and in addition to these rights the owner of the land in its natural state had also of course the absolutely necessary enjoyment of the free passage of light and air in its natural state over and from his neighbour's land to and over his own. But unlike the right of support of soil by soil and of the flow of water in a defined course, the owner in the case of light and air has originally no right of enjoyment which can prevail against his neighbour's right to make any use of his land he may like, although such use will interfere with the natural transmission of the light and air. But if the owner of the land wishes to erect a building with openings for the admission of light and air he may proceed to do so by building (as he has a right to do) his wall with the windows in it close to the very verge of his own land, so that it owes of necessity its support in part to the neighbour's adjacent soil, and the windows receive their light and air directly from it. He has thus taken into his own enjoyment and, as it were, into his own occupation the soil of his neighbour, and also the light and air transmitted to him by his neighbour by a confinement and enjoyment of it in a particular definite channel. But although his doing this is a perfectly lawful act requiring no grant, license, or assent from the adjoining owner, it does not at first confer any right as against his neighbour, either of support of the wall or of transmission of light or air, or impose any burden in those respects on his neighbour. The latter may at first and until the lapse of a definite period of enjoyment use his own soil by digging or otherwise, or build a wall up to the very edge of his own ground, notwithstanding that by so doing respectively he causes his neighbour's building to fall or obstruct the passage of the light and air through the window. Neither building nor window has yet become "ancient." For these propositions I refer to Palmer v. Fleshees(1); Wyatt v. Harrison(2); Partridge v. Scott(3). But if he do not by some act of interruption prevent it, the open continuance of this enjoyment by the adjoining owner for the requisite period of time, makes the building or windows to be "ancient," and converts the de facto enjoyment into a right, an injury to which thenceforth by any use of the neighbour's land is an actionable wrong. Interruption of the enjoyment is the only mode by which the acquisition of this right can be prevented; nothing short of it is of any avail, and no actual assent is required to convert the lawful enjoyment into a right. This is laid down by Bayley , J., in Cross v. Lewis(4),and by Littledale, J., in Moore v. Rawson(5).
These propositions are the result I think of the authorities cited and analyzed by my Brother Pollock in the opinion which he has just expressed to your Lordships. I do not propose to go through those authorities in detail, but merely to add such observations as seem to me to support the conclusion at which he and I have arrived. As was remarked by the late Lord Chief Justice in his judgment below, the cases to be found in the books relating directly to the right of lateral support of "building" by adjacent "soil" are comparatively few, but there are
found in the books a vast number of authorities in reference to other rights of a more or less analogous character which seem to me to bear upon the question. Those authorities may be divided generally into four classes according as they relate to: (1st.) Vertical or lateral support of land or buildings; (2nd.) Light and air; (3rd.) Water; and (4th.) Way or common, or rights of that nature. In the cases relating to the rights of the first class, I find it clearly laid down that by the uninterrupted enjoyment in fact of lateral support of an "ancient" building the right to the support is acquired. In Wilde v. Minsterley(1), and in Palmer v. Fleshees(2), the words used to cover the existence or non-existence of the right are "ancient" or "new" messuage, and I find the proposition stated, substantially in the terms which I have used, by Lord Ellenborough in Stansell v. Jollard(3), by Parke , B., in Hide v. Thornborough(4),and again in Gayford v. Nicholls(5); by Cresswell , J., and Bramwell ,B., in Rowbotham v. Wilson(6),and lastly and most elaborately and unequivocally in the judgment of Wightman ,J., in Bonomi v. Backhouse(7), in which he distinctly treats the actionable wrong in such a case as founded upon the breach of duty in one man's using his property so as to injure that of his neighbour; not as founded on any presumption of grant or easement, but the common right of an owner of land not to be injured in his property by the wrong of his neighbour. In this view Campbell, L.C.J., and Coleridge and Erle , JJ., all concur, and I conceive it to have been the view entertained by some of the noble and learned members of your Lordships' House who advised the House upon the judgment of the appeal(8). I am well aware that it has been doubted whether this assertion of the law in the last case is to be considered as an authority applicable to the one now before your Lordships, but I am unable to share in that doubt for the reasons stated by my Brother Manisty .
Besides these cases which involved the right of "lateral" support of buildings, there is also one relating to "vertical" support in a case where the subjacent strata had been severed from the surface. The right of support of the surface soil in such a case is analogous to the right of "lateral" support, indeed so much so that in the case of Humphries v. Brogden(9), in which the right of the owner of the surface to have it supported by the subjacent severed minerals was first directly asserted, that right was deduced from the previous authorities cited above as to the right of "Lateral" support, and in the case of support of surface by the minerals below there is now no question but that the right is a natural one.
In Rogers v. Taylor (10), the case to which I refer, the Plaintiff's house had been built in 1824 upon land the quarries underlying which had been expressly excepted from the conveyance to him, and had become therefore a separate tenement, and the stone under the house had been got by the owner of the excepted quarries in 1840, leaving supports of the house at that time sufficient. In 1853 the Defendant, the owner of the quarries and also of adjacent land, in quarrying
cut away the supports under the Plaintiff's house and it fell. At the trial before the late Lord Chief Justice Cockburn it was contended on behalf of the Defendant that in order to make out a title to have the house supported by the subjacent soil, the Plaintiff was bound to shew a continuous enjoyment for the required period "as of right," and that there had in fact been none such, but only a contentious enjoyment. But the direction of the Lord Chief Justice was that at the end of twenty years, after having built the house the Plaintiff acquired the right of support unless something had been "done" to deprive him of it, and the question he left to the jury was whether the Plaintiff had enjoyed the support for the foundation of his house for twenty years. The jury found that he had done so, adding the words "without interruption," and the ruling and verdict were upheld. I cite this case for the purpose of the precise language of the Lord Chief Justice in his ruling and direction. At the same time there is no doubt but that the Court of Exchequer, in supporting the direction and verdict, were inclined to place the right of vertical support of a house in the category of easements, requiring prescription or presumed grant for its foundation, and they adopted the same view as to "lateral" support in Partridge v. Scott(1), whilst in Solomon v. Vintners' Company(2), a case of support of building by building, they went further and expressed doubts as to the authority of Stansell v. Jollard(3), Hide v. Thornborough(4), and the observations of Lord Campbell in reference to this subject in Humphries v. Brogden(5).
In order to appreciate the correctness or otherwise of this view it is, I think, desirable to refer a little more in detail to the case of Partridge v. Scott(1), for the reasoning of the Judges in that case shews that they were ready to affirm the existence of the right after the lapse of the requisite period of enjoyment, although they entertained a different view from that expressed in the decisions I have referred to as to its origin and mode of acquisition. The material facts in Partridge v. Scott(1) were, that there were two houses in respect of injury to which the action had been brought. One had existed more than thirty years, and was admittedly "ancient;" the other was admittedly "new;" and both were at the time of action brought found to be on excavated ground, so that at some time or other the surface had been deprived in part of what otherwise would have been its natural support. There was no evidence to shew when this had happened, but it is obvious that in this state of things the owner of the houses had ever since that time been de facto enjoying a greater degree of support by, and was throwing upon, the neighbouring soil, a greater burden than if his underlying soil had been in its natural position. The fact of the excavation was also unknown to both parties, and, as beyond all question the acquisition of the right depends upon the non-interruption of the enjoyment by the neighbour only where he has the knowledge or means of knowledge that it is being had, and all he knew in that case was the inference which he was bound to draw from the known fact of the house being built and of necessity deriving support from his soil, the Court of Exchequer held that no right of support had been gained of either house, of one because it was "new," and the other because the underlying strata
might have been removed within twenty years. The inference to be drawn from this case seems to me to be that but for that fact the right would have been acquired. It was pointed out by Littledale , J., in Moore v. Rawson(1) (a case of light), and by Fry , J., in Hall v. Lichfield Brewery Company(2), that such a right is not properly the subject of "grant," but that the implication of law to be made in support of it is a covenant not to interfere with the enjoyment, which seems to me to be merely an alternative mode of slating the right to depend (as put by Wightman , J.,) upon the maxim of "." It is, I know, thought by some, for whose opinions I have the highest respect, that, thinking, as they do, that the right rests upon a presumed grant, it can only exist where all the circumstances are such as would have existed if there had been in fact such a grant made, and that it is unjust and inequitable to hold that such a right can be gained in cases like this where the servient owner has, as is admittedly the case, no power of preventing the enjoyment which is to found it. It is, however, clear that where the surface and subjacent strata have been divided horizontally into separate tenements, a house built by the owner of the surface, and which has, de facto ,enjoyed the support of the subjacent minerals for more than twenty years has acquired the right of support of that mineral, unless, as in Rowbotham v. Wilson(3),there is evidence to the contrary; and in Partridge v. Scott(4) the right would have been extended by the Court of Exchequer to lateral support if the enjoyment there known had existed for twenty years. But what power has the servient owner in those cases to "prohibit" otherwise than by actual interruption of the de facto enjoyment; he cannot prevent the building; he cannot bring any action in respect of it? he can do nothing but interrupt the enjoyment. In the analogous case of light there is the same limitation of the power of prohibition, and yet the right admittedly exists; and in the cases as to water, to which I shall hereafter advert, in which the absence of the power of prohibiting was referred to, some of the Judges who decided them, including, I think, one of your Lordships, declared that the decision in those cases was without prejudice to the determination of the question now raised for decision by your Lordships' House. Moreover, the foundation of a right upon mere long uninterrupted possession, as a matter of public convenience, is of very general application. Statutes of Limitation have no other origin, and it is upon this principle that Story , J., in his well-known judgment in Tyler v. Wilkinson(5), puts rights of this kind, for he says, "twenty years uninterrupted enjoyment is held upon principles of public convenience a conclusive presumption of a 'grant,' or 'right'" (expressly asserting the alternative). "The presumption is applied as a presumption juris et de jure ,wherever by possibility a right may be acquired in any manner known to the law."
But whatever may be the correct view as to the origin of the right, all the authorities seem to agree that after twenty years' enjoyment the right is acquired; in the one case the view being that it arises from a presumption of origin by grant to be made in each particular case from long uninterrupted possession, in
the other case that it has become an universal settled rule of law that the open enjoyment uncontradicted and unexplained is sufficient by itself, and that there is in modern times, at least, no necessity for presuming in each particular case a thing which everybody knows is a mere fiction. That in any view the enjoyment must not be " clam " is clear; for to hold that a man is bound by a right of the growing acquisition of which he had neither knowledge, nor the means of knowledge, would be unjust and inequitable. Upon this absence of the means of knowledge of the enjoyment, the cases of Partridge v. Scott(1)and Solomon v. Vintners' Company(2) may well stand, and indeed the judgment of Bramwell ,B., in the latter case is expressly based upon it.
My Lords, I now proceed to consider whether the authorities upon which I rely are fortified, or otherwise, by the authorities which relate to the rights as to light and air, between which and the right now under discussion a close analogy, in my judgment, exists. They both have their de facto origin in the same lawful use of land for habitation, and the necessity of light and air for its enjoyment. That such analogy has been thought to exist is clear. In the earlier books the right of light is asserted in conjunction with, and as mutually illustrating, or illustrated by, the right of support. In Palmer v. Fleshees(3)the assertion of the then apparently well understood right of support of an "ancient" building was made, as tending to shew the existence of the right to the enjoyment of an "ancient" window. In Stansell v. Jollard(4) Lord Ellenborough e converso fortified his ruling, that a de facto enjoyment for above twenty years of support gave the right to it, by referring to light as analogous; and so also the Court of Queen's Bench, in the case of Humphries v. Brogden(5), and Cresswell, J., in his observations during the argument in Rowbotham v. Wilson(6) resort to the same analogy. If, then, that analogy exist, it will, I think, be found on reference to the authorities on the subject of light, that they affirm the conclusion arrived at from the consideration of those relating to support. In Moore v. Rawson(7)the question to be decided was whether the dominant owner had lost a right to "ancient" windows which at a former time he unquestionably had possessed, and it was held that he had lost it by a mere abandonment of the enjoyment; and that result was arrived at by the application to the question of extinguishment of the principle upon which the right had originally been acquired. In his judgment in that case, Bayley , J., says(8), "The right to light, air, or water, is acquired by enjoyment," adding later on, "I think that according to the doctrine of modern times we must consider the enjoyment as giving the right." Littledale ,J., says, "According to the present rule of law a man may acquire a right of way or a right of common. … But there is a material difference between the mode of acquiring such rights and a right to light and air. The latter is acquired by mere occupancy, the former can only be acquired by user accompanied with the consent of the owner of the land. … But it is otherwise as to light and air. Every man on his own land has a right to all the light and air which will come
to him, and he may erect, even on the extremity of his land, buildings with as many windows as he pleases. In order to make it lawful for him to appropriate to himself the use of the light he does not require any consent from the owner of the adjoining land; he therefore begins to acquire the right to the enjoyment of the light by mere occupancy. After he has erected his building the owner of the adjoining land may afterwards, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected the law implies from the non-obstruction of the light for that length of time that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy the light without obstruction." That this right arises from the mere uninterrupted enjoyment is, I think, further shewn by two cases decided by Wilmot , C.J., in 1761 and 1768. In the first case, Lewis v. Price(1), the Chief Justice said (I do not know whether it was at Nisi Prius or not): "Where a house has been built forty years and has had lights at the end of it, if the owner of the adjoining ground builds against them so as to obstruct them, an action lies; and this is founded on the same reason as when they have been immemorial, for this is long enough to induce a presumption that there was originally some agreement between the parties." And in the second case, Dougal v. Wilson(2), where the Defendant proposed to shew the non-existence of the windows at a period within the time of legal memory, the Chief Justice said: "If a man has been in possession of a house with lights for sixty years no man can stop them up." In another case, the Wells Harbour(3), Buller, J., cited the language of the presiding Judge thus, "I think twenty years uninterrupted possession of windows is a sufficient right for the Plaintiff's enjoyment of them." It has indeed been supposed that the decisions of Wilmot , C.J., were disapproved of in the subsequent case of Darwin v. Upton(4), but I cannot share in that view. That case was tried at Nisi Prius before Gould , J. It appeared that the lights had been in existence for twenty-five years, and the Defendants offered to prove that they had had no earlier existence. Gould ,J., thought that the possession for twenty-five years, if unanswered, was sufficient, but if the Defendant could offer anything to explain the possession and shew that it was in any way limited or modified or was bad in its commencement he might do so. No evidence of that kind having been offered a verdict was given for the Plaintiff, with leave reserved to move. On the motion a rule was granted upon the counsel's allegation that Gould , J., had told the jury that the possession was an "absolute" bar, instead of leaving the question to them as a presumptive bar, and upon that supposition the rule was in the first instance made absolute, but was afterwards discharged on the report of the Judge that this was an error. On the argument of the rule Lord Mansfield said that enjoyment of light with the Defendant's acquiescence was such a decisive presumption of right by grant "or otherwise" (specifically mentioning as Lord Ellenborough, Parke , B., and Story ,J., did, the alternative origin) that unless contradicted or explained a jury ought to believe it. And this view was affirmed by the Court of Queen's Bench in the subsequent case of
Cross v. Lewis(1). In that case the lights had been in existence for thirty-eight years, during twenty of which the adjoining premises had been in the possession of Percy as tenant, and there was no evidence that the reversioner, or his family, had ever been near the place. At the trial Holroyd , J., held the lights to be "ancient," and directed the jury to find a verdict for the Plaintiff. A rule was then moved for on the ground of misdirection in not leaving it to the jury to say whether they believed that notice of the enjoyment had or had not been given to the servient owner, which is the question raised by the Defendants in the case now before your Lordships. The Court, however, upheld the ruling of Holroyd , J., Bayley , J., saying that it had been always held since Darwin v. Upton(2), that in the absence of any evidence to rebut, after possession of twenty years a presumption of right arose "and that a jury should be directed , to act upon it." He adds that if the neighbour objects to the windows he may put up an obstruction, but that is his only remedy; if he allows them to remain unobstructed for twenty years, that is a sufficient foundation for the presumption of an agreement not to obstruct them. Holroyd , J., says they are "ancient lights," and the Plaintiff had a right by law to enjoy them. He adds, it is not a question to be determined by the jury unless there is evidence to contradict their being "ancient lights." At first they may be obstructed, but if no interruption is offered, the owner of them may prescribe for them as "ancient windows."
The result which I deduce from these authorities is that the de facto enjoyment is the origin of the right, and if that be not contradicted or explained the jury may and should be directed to act upon it.
The cases relating to water, to which I have referred as of the third class, were greatly relied upon on the argument before your Lordships as shewing that no right at all could exist in the case of support, one of the reasons given for not implying any grant in those cases being that there could be no resistance on the part of the servient owner. They were cases of percolating water (Chasemore v. Richards(3)), which had not yet been confined and accustomed to run in a definite channel, or of air unconfined not having been taken into and enjoyed in a tenement through a definite aperture (Webb v. Bird(4)), and smoke (Bryant v. Lefever(5)). These cases seem, however, to me to be so essentially different from the case before your Lordships that it is unnecessary to consider them in detail. The principle which underlies them all I conceive to be that, until defined and confined, there is in those cases, as in light and air in its natural state, no subject matter capable of being the subject of a lawful grant, nor from the very nature of them can there be any definite occupation or enjoyment.
There remains only to be considered the last class of cases, viz., those relating to rights of way and common and easements of that description. But the distinction between such easements and the right to air and light was pointed out, as I have already said, by Littledale , J., in Cross v. Lewis(1) and again in Moore v. Rawson(6), which latter judgment was referred to with approval by the Court of Exchequer Chamber in Webb v. Bird(7). Such rights are unlawful in
their origin. The first of the acts is a trespass; whereas, in the case of light and support, the acts are in themselves lawful acts, done in the lawful occupation and user of a man's own land, and I do not think it useful to trouble your Lordships with any observations upon them.
I answer your Lordships' second question in the affirmative. As has been repeatedly stated, the enjoyment, which was originally necessary to found the presumption of right, must have had its commencement before the time of legal memory; but upon principles of public convenience, this period of antiquity has been clearly departed from, and the necessary limit has by successive stages been reduced to an enjoyment of twenty years, which is clearly sufficient to make a building or window "ancient."
I answer your Lordships' third question in the negative. If it be, as I think, absolutely settled law that the right depends upon the " de facto " enjoyment known to both parties, and acquiesced in by the servient owner, the measure of that right will not be such enjoyment as he may be able to prove to the satisfaction of a jury that the servient owner of the inheritance had actual notice of, but at least the actual enjoyment known and acquiesced in by the servient ower during the requisite period of enjoyment, or perhaps such enjoyment by the owner of the dominant building as the owner of it may be entitled to have for any purpose to which he may already have or may thereafter lawfully put it. The case of Partridge v. Scott(1) shews that, in order to confer the right, the enjoyment must be of such a nature as to indicate to the servient owner that the acquisition of a right of support is in progress, the Court of Exchequer holding that the right was not gained in that case because, although the existence of the house was patent, it was not known that it had only excavated soil for its vertical support.
In the case of light also a similar measure of enjoyment prevails. The rule in that case is, that the extent of light acquired is proportionate to the actual amount of enjoyment had: Martin v. Goble(2); Lanfranchi v. Mackenzie(3). There are, however, several authorities enlarging this right, and tending to shew that the dominant tenement has a right, not merely to the light actually enjoyed for the twenty years during which it had been accruing, but to all the light and air which will come through the window, and which may be necessary for any ordinary and lawful purposes for which the building has been, or at any future time may be, used, and this view has recently been adopted by the Queen's Bench Division in the case of Moore v. Hall(4). Whether this view is consistent with the principles upon which the acquisition of the right of light and air depends, and the earlier authorities, it is not necessary now to consider, for the limitation of the right to that degree of enjoyment which has been had during the twenty years is sufficient for the determination of the present case. In the present case it is admitted that the actual enjoyment of the Plaintiff's building in its altered state has existed for more than that period, and the only question, therefore, that it is necessary to determine is whether that enjoyment was or might have been known by the Defendant's predecessors in title so as to indicate to them that the right was being acquired. In the case of light all that the servient owner knows or has the means of knowing is the area of the apertures through which the light
passes. He has no notice of the size of the rooms, or of their distribution, or the objects for which the light is required. It may be that the light is used for a hall or a kitchen requiring the most ordinary degree of light, but it may be (as in Lanfranchi v. Mackenzie(1)) used for a room for examining samples, purposes requiring a special degree or quality of light, and yet if the servient owner obstruct the light necessary for such user, although it is more than, or different in quality, from that which is required for the ordinary purposes of a house, he will be liable to an action; in other words he is violating a right acquired by his neighbour's actual enjoyment.
It has been said that in this case the Defendant and his predecessors in title did not see, and could not know, the quantity of support required by the Plaintiff's house after the alterations. But the enjoyment, in fact, of the support was known, or might be known, to everybody, and I think that under such circumstances the servient owner must be held, upon presumption of public convenience, to know that the support which is being enjoyed is that of the weight of such a building constructed and used for any ordinary purpose of pleasure or business for which it is calculated. Whether the alterations in the Plaintiff's premises had the effect of throwing more weight upon the Defendant's soil than the original structure did, is a matter, no doubt, which might be open to contest, and if those alterations had been made at any time within the last twenty years a different question might have arisen from that now before your Lordships. But, assuming that the messuage had been built in the mode to which it is now altered, could it have been said that it had not become "ancient," and, as it has stood in that state for twenty-seven years, why is it not in its altered state "ancient?" These alterations were openly made, and the premises have been as openly enjoyed as (or probably from the particular nature of the business more openly enjoyed than) other buildings with a capacity for enjoyment for like purposes.
In the case of any house which openly enjoys the support of neighbouring land, does the neighbour ever know, even approximately, what extra weight his land has to bear beyond the weight of the soil which it is bound as of right to bear? By what process would a neighbour, in any ordinary case, know how far he might safely dig so as not to let down the soil of the adjoining owner, and yet dig just as far as he wished without bringing down the building? If every owner of a building were required, in cases where the enjoyment has been had for long periods (and be it recollected there is no other dividing line after you have passed twenty years until Richard I. is reached), to prove the existence of all the circumstances which would go to make up a grant binding upon the owner of the neighbouring inheritance, in how many cases could he support the burden, and what would be the number of now existing houses in England the owners of which would not find themselves liable to have their enjoyment of support put an end to? To leave the questions which would be involved in such cases to juries instead of letting the solution of them depend upon a clear and absolute settled rule of law would in my judgment introduce great uncertainty in title and much real injustice. In truth the burden imposed upon the servient owner is not a very heavy one. Before it could exist he had twenty years in which to make any lawful use of his own property. He has the correlative
right of support of his own property, and all that he has to do if he wants to alter the state of the property is to leave sufficient soil to support the wall. Or if he wishes to remove all the soil, he has but to provide temporary strutting and supports, whilst the well-understood process of underpinning is being carried on. When the extensive substitution of enormous for smaller buildings which has within the last thirty years under the law as now understood been going on is considered, and that so little litigation has ensued upon it, it does not appear to me that there can be any great injustice or hardship in leaving the rule as it is.
In answer to your Lordships' fifth question, I think that the direction of the learned Judge was right. The Plaintiff had given affirmative evidence of the actual enjoyment by his building in its altered condition for twenty-seven years, and it was in no way proposed to offer any denial, explanation, or modification of this actual enjoyment. It is unnecessary, therefore, to consider the question what rebutting evidence (if any) might or might not in cases similar to the present be given, it is enough to ray that no such was suggested here. The learned Judge offered to admit proof that the wall would not have fallen if it had not been for the weight imposed upon it, but that offer was declined, and, for the reasons I have stated, the right does, in my judgment, not depend upon whether the owner of the tenement has or has not had actual notice of the degree of support required, or of the precise circumstances upon which that depends. In the present case, as in Darwin v. Upton(1) and Cross v. Lewis(2), I think the jury were bound to act upon the "decisive" presumption thus afforded of the existence of the right, and that the learned Judge was right in so holding. I am unable to see what necessity there was for or what advantage could have been gained by his leaving any question to them. They would either have done their duty and given their verdict in accordance with the presumption as directed, or they would have found a verdict in defiance of this direction. In the former case the result now arrived at would have directly followed the verdict. In the latter case, the Court, if they considered the direction right as I do, and the verdict wrong, would under Order 40, Rule 10 of the rules under the Judicature Act, having all the materials before it, have declined to act upon the verdict and have entered judgment for the Plaintiff.
The second question cannot be so easily answered. It appears to me to depend on the view a jury might take of the facts of this particular case, and, in particular, of the peculiar construction of the Plaintiff's house.
The following legal propositions bearing on this question appear to be settled beyond controversy:-
( First .) The owner of an ancient building ( i.e . of a building so old that the
non-existence of it cannot be proved) has a right of action against the owner of land adjoining if he disturbs his land so as to take away the lateral support previously afforded by that land.
( Secondly .) The owner of a building which has in fact been supported by his neighbour's land for twenty years has, primâ facie at all events, a right of action against the owner of the adjoining land if he disturb that land so as to take away the support afforded by it. This proposition is I conceive only open to doubt on the ground that it is not wide enough; but to the limited extent here stated all the authorities seem in accord, and no Judge has questioned it. The authorities to which I refer are Stansell v. Jollard(1); Wyatt v. Harrison(2); Partridge v. Scott(3); Hide v. Thornborough(4); Humphries v. Brogden(5); Gayford v. Nicholls(6); Rowbotham v. Wilson(7); Rogers v. Taylor(8); Solomon v. Vintners' Company(9); Hunt v. Peake (10); Bonomi v. Backhouse (11). These cases will all be found examined and discussed by the Queen's Bench Division and the Court of Appeal, and I forbear, therefore, to trouble your Lordships with more than their names.
( Thirdly .) The owner of a newly-erected building has no such right of support unless his neighbour has conferred it upon him. This proposition is, in my opinion, as clearly settled as the other two. The authorities in support of it are Wilde v. Minsterley (12); Wyatt v. Harrison(2); Partridge v. Scott(3); Humphries v. Brogden(5); Gayford v. Nicholls(6); all of which are commented on in the judgment of Brett , L.J.
From the first and second of the above propositions it follows, that a right to lateral support in respect of buildings may be acquired by English law, and may be acquired in modern times; whilst from the third proposition it follows that the right is not a mere incident to the ownership of land. Bonomi v. Backhouse (13)is said to be opposed to this view, but I cannot so regard it; for in that case the Plaintiff's house was an ancient house, his land was let down, and nothing turned on the pressure exerted by the house itself. The Plaintiff clearly had and was assumed to have a right of action; and the only question raised and decided was when his right of action accrued. Combining the same propositions and having regard to the language of the decisions which support them, it further follows that lapse of time is essential to the acquisition of a right to have a building supported by the land of another person, and that such right is by English law an easement, or a right in the nature of an easement. A little reflection, however, will suffice to shew that the easement of lateral support is of a peculiar kind; it is not a purely negative easement like the right to light; for support, even when lateral, involves pressure on and an actual use of the laterally
supporting soil. Further, the actual enjoyment of lateral support is incapable of interruption by physical means, except by the removal of the soil which affords the support; or, in other words, by the destruction more or less of the servient tenement. Notwithstanding the first peculiarity, no trace is to be found in our law books of any action at law or suit in equity based upon any wrong done to the owner of the servient tenement; and the general opinion certainly is that in the absence of actual damage to the soil, no such action or suit could be maintained. Upon principle, I confess I do not see why this should be so. If a person builds so near the edge of his own land as to use his neighbour's land to support his house without his neighbour's consent, I do not see why such neighbour should have no cause of action. The enjoyment of light coming across adjoining land and the enjoyment of the use of such land for support are in some respects entirely different; for no use is made of a man's property by opening a window on other property near it; and a right not to be overlooked is not recognised by our law. At the same time in every case in which the right to lateral support is alluded to, it is treated as analogous to the right to light, and the difference to which I have drawn attention has not been dwelt upon or treated as material. Nevertheless, whatever my own opinion would be, looking at the matter theoretically, I am not prepared to say that an action for damages or an injunction could be maintained in such a case as I have supposed. The authority against it, although purely negative, would, in my judgment, be considered as too strong to be got over. If, however, your Lordships should be of a different opinion, I apprehend that it would follow that the Prescription Act (2 & 3 Will. 4, c. 71, s. 2) would apply to and include an easement of lateral support; and the law upon this important subject would then be contained in the provisions of that statute. But all the Judges before whom this case has come, concur in holding the Prescription Act not to apply; and, in the absence of authority to the contrary, I am not prepared to differ from them.
As regards the practical possibility of physically obstructing the use of one's land by another for the support of his own house it is to be observed:-
1. That in a literal, i.e., merely mechanical sense, such obstruction is always possible;
2. That it is possible only by a removal of the soil used for support;
3. That such removal may or may not be convenient to its owner; he may or may not require to remove it for purposes of his own;
4. That, if he does not require to remove it for his own purposes, a law which
renders it necessary for him to remove it in order to preserve his unrestricted
right to do so at some future time, does not commend itself to common sense; for
if his land is itself already built upon, such a law would impose upon him the
necessity of removing part of his own property, and to destroy, or to incur great
expense in order to avoid destroying, more in order to preserve his rights intact.
In these respects the power of preventing the acquisition of a right to light, and
the power of preventing the acquisition of a right to lateral support are very
different; but notwithstanding these differences every authority on the subject
treats the right to such support as capable of being acquired in the same way as
the right to light. Stansell v. Jollard(1); Hide
v. Thornborough(2); Gayford
The authorities already referred to appear to me to establish that a right to lateral support, although not within the Prescription Act , and although in many respects unlike a right to light, can be acquired in the same way and under the same circumstances as a right to light could be acquired before that Act passed. A careful study of those authorities has driven me to this conclusion, from which I see no escape. Without going over the cases so exhaustively examined and discussed in the Courts below it will be sufficient, after the observations already made, to say that the view taken by Cotton and Thesiger ,L.JJ., on the mode of acquiring a right to light independently of the appears to me to be more correct than the views taken by Lush , J., on the one side, and by Cockburn ,L.C.J., and Mellor , J., and Brett , L.J., on the other. The absence in fact of a grant, meaning thereby a deed under seal, cannot in my opinion be conclusive against the Plaintiff. An agreement for valuable consideration, though not under seal, is sufficient to create a right to an easement, and for the purpose of creating a lawful user is as good as a deed. Again, assent or acquiescence on the part of the Defendants to the erection of the Plaintiff's building with a knowledge of its peculiar mode of construction would, in the absence of any deed under seal, entitle the Plaintiff to maintain this action: see Brown v. Windsor(9).
The theory of an implied grant was invented as a means to an end. It afforded a technical common law reason for not disturbing a long continued open enjoyment. But it appears to me contrary to the reason for the theory itself to allow such an enjoyment to be disturbed simply because it can be proved that no grant was ever in fact made. If any lawful origin for such an enjoyment can be suggested the presumption in favour of its legality ought to be made. Nor am I aware of any instance in the equity reports in which it has been held that an easement openly and uninterruptedly enjoyed for twenty years has been destroyed simply by proof that no grant under seal was ever in fact made. The theory of an implied grant, as distinguished from a legal presumption of some lawful origin, is, in my opinion, untenable and practically misleading, especially now that principles of equity as well as of law have to be applied both to trials with juries and to trials without. I feel a difficulty in saying that acquiescence on the part of the Defendant is essential to the acquisition by the Plaintiff of a right to
support. No one can be properly said to acquiesce in what he cannot prevent; and it rarely happens that the use of land for lateral support can be practically prevented. Express dissent, i.e., an express protest, would no doubt negative assent; and if acquiescence by the owner of the servient tenement is essential to the acquisition of a right to lateral support, a protest by him ought to be sufficient to prevent its acquisition. But I can find no trace of any authority to the effect that a protest would suffice for that purpose in this case any more than in other cases more or less similar, and I understand Cross v. Lewis(1) to be an authority against the sufficiency of a protest in a case of light. Further, it is difficult to see why a protest should be required to preserve a light which is not being infringed. A protest is evidence of dissent, but nothing more, and until it is shewn that assent is important, dissent cannot be of any avail. The only way in which I can reconcile the authorities on this subject is to hold that a right to lateral support can be acquired in modern times by an open uninterrupted enjoyment for twenty years, and that if such an enjoyment is proved the right will be acquired as against an owner in fee of the servient tenement, unless he can shew that the enjoyment has been on terms which exclude the acquisition. Whether he has assented or not, even if he has dissented, appears to me immaterial, unless he has disturbed the continued enjoyment necessary to the acquisition of the right. In the absence of an uninterrupted open enjoyment the right cannot be acquired, and the answer to your Lordships' second question appears to me to turn on whether the enjoyment in this particular case was open; and this again appears to me to be a question of fact which ought to have been left to the jury. The learned Judge who tried the case considered that as the Plaintiff's building was openly built and enjoyed, it followed that he had openly enjoyed the support which he in fact had had. I do not think that this is a necessary inference; for the building was very peculiarly constructed, and I agree with Cotton and Thesiger , L.JJ., that the jury should have had their attention called to this point, and have been asked whether the Plaintiff had in fact openly enjoyed the support the right to which he claimed. My answers to the third, fourth, and fifth questions will shew more fully what I mean here to convey. Open enjoyment of the lateral support, a right to which is claimed, is in my opinion a condition of the acquisition of the right, because by English law a right to lateral support for a building is treated as an easement; and easements cannot be acquired unless their enjoyment has been open. The necessity for open enjoyment in cases of lateral support is stated in or to be inferred from the language of the decisions in Hide v. Thornborough(2), Gayford v. Nicholls(3), Partridge v. Scott(4), and Humphries v. Brogden(5). Moreover, the reason for requiring open enjoyment exists, although it is not cogent or obvious in the case of lateral support as it is in the case of other easements, the acquisition of which can be more easily prevented.
In answer to your Lordships' third and fourth questions, for the reasons already given, I am of opinion that it is incumbent on the Plaintiff to prove an open enjoyment of the right he claimed. But if he proves such open enjoyment it is not in my opinion necessary for him to adduce further evidence to prove that the
Defendants or their predecessors in title had knowledge or notice of the alterations made in 1849, or of the effect of such alterations in order to make the damages done by their act in removing the lateral support after the lapse of twenty-seven years an actionable wrong. What is proof of open enjoyment will appear from my answer to the next question.
In answer to your Lordships' fifth question, for the reasons already stated, I am of opinion that the course taken by the learned Judge at the trial in directing a verdict for the Plaintiff was not correct. He ought to have left the jury to decide the question of open enjoyment by the Plaintiff of the right he claimed. In order to make this question intelligible to jurymen they should be told that they ought to consider that the Plaintiff had openly enjoyed all that support which any reasonably competent person, seeing the ground and the Plaintiff's building (but knowing nothing of its peculiarities), would infer it required when used for the purposes for which it was apparently constructed and adapted; but any support which in fact the building might require beyond this ought not to be considered as openly enjoyed, unless the necessity for such additional support was in fact known to the Defendants or their predecessors in title. In the great majority of cases the existence and nature of the building will render it unnecessary to investigate such a question as this; for it is only in cases of an unusual character that a building requires more support than any competent person seeing it would suppose. But in my opinion the Plaintiff's building in this case was so peculiarly constructed as to render it quite possible for the Defendants to prove, first, that the Plaintiff had enjoyed more support than any one would infer from the nature and character of his building, and, secondly, that the building fell by reason of the withdrawal of such extra support, which, although enjoyed in fact, had not been enjoyed openly or to the knowledge of the Defendants or their predecessors in title. If the Defendants had succeeded in proving these points they would in my judgment have been entitled to a verdict; and it is because they had no opportunity of giving such proof that I think there ought to be a new trial. A direction to the jury to the effect above-mentioned would not only be in accordance with law as I understand it, but would also, I think, be free from practical difficulties or objections; for it comes to this, that, speaking generally and excluding cases of settled estates and other anomalous cases, the owner of a house which has existed for twenty years is entitled to such support as any one acquainted with building can see the house requires, but not to more unless he can shew actual notice of enjoyment of more.
(1.) That the right to lateral support for buildings from adjacent soil is not the right to an easement in or over that soil, but is a right of property, namely, the right of the owner of the buildings to enjoy his property free from interruption by his neighbour, even though that interruption be caused by acts done by his neighbour in his own land which are in themselves lawful.
(2.) That this is not a natural right but a right of property, which when acquired is of the same character as a natural right.
(3.) That a house, or building which has stood for upwards of twenty years is in the eye of the law an "ancient" house or building.
(4.) That the law presumes, until the contrary is proved , that the owner of an ancient house, or building, who has enjoyed it free from interruption by a neighbouring proprietor for upwards of twenty years, has acquired the right so to enjoy it for the future.
(5.) That the contrary may be proved as I shall afterwards shew; but the presumption of law cannot be rebutted by merely proving that no grant of support was in fact ever made by the neighbouring proprietor.
In support of these propositions I shall consider in the first place what is the true character of the right in question, because it seems to me that this goes to the root of the case. And in this I am fortified by what Brett , L.J., said in giving judgment in the Court of Appeal in the case now under consideration. He is reported to have said(1): "The first question to be determined is whether the right claimed is a right of property, for if it is, it is unnecessary to inquire further in this case, the Plaintiff being clearly entitled to succeed." His Lordship having expressed that opinion proceeded to consider whether the right claimed was a right of property or a right to an easement, and came to the conclusion that it was the right to an easement. From that conclusion I venture respectfully to differ. No doubt for many years the right of lateral support for buildings from adjoining soil was considered and treated as the right to an easement, and consequently in order to maintain the right the fiction of a lost grant was resorted to, and juries were directed that they ought to find as a fact that which they and every one else knew was not the fact. The right was sometimes called an "easement" simpliciter , sometimes a "negative easement," but in 1857, in the case of Rowbotham v. Wilson, in the Exchequer Chamber(2), Cresswell and Williams , JJ., and Martin and Watson , BB., expressed a strong opinion that it was one of the ordinary rights of property and not an easement. Bramwell, B., said(3): "After a house has stood for twenty years it acquires a right to support from adjoining land." The case of Bonomi v. Backhouse(4) was decided by the Court of Queen's Bench in the following year (1858). The right claimed in that case and the mode of acquiring it were in all material circumstances identical with those in the present case, and the four eminent and learned Judges who heard it were unanimously of opinion that the right of lateral support for an ancient house from neighbouring soil is not an easement acquired by grant but a proprietary right, which may be acquired by uninterrupted enjoyment for upwards of twenty years. Lord Campbell , in giving judgment, said: "I agree in the opinion that the right of support which the Plaintiffs claim is a
natural right of property to be presumed till, as in Rowbotham v. Wilson(1),evidence is given to rebut that presumption, and that such a right is not to be considered an easement or servitude arising from grant." Coleridge , J., said: "It seems to me that the interest which the Plaintiffs allege in themselves and to have been injured by the Defendant, is in the nature of a right growing out of ownership, or incident to the ownership of land, and not an easement on the land of another arising from grant or in any other way." Erle , J., said: "Upon the facts as stated by Whitman , J., I am of opinion that the right to support is one of the ordinary rights of property, and not an easement or right acquired by grant or otherwise." Whitman , J., said: "Upon consideration of all the cases it appears to me that the cause of action in such a case as the present is founded upon a breach of duty on the part of the Defendant, by so using his own property as to injure that of his neighbour, and not upon any right of the Plaintiffs to an easement in upon or over the land of their neighbours. Where ancient buildings are standing upon the Plaintiffs' land, the Defendant must take care not to use his own land in such a manner as to injure them." The learned Judges, though unanimous as to the character of the right claimed and the mode of acquiring it, differed as to the effect of the , three of them being of opinion that the statute began to run from the time when the adjacent soil was removed; the fourth ( Whitman , J.), holding that it did not begin to run till the Plaintiffs' house was injured, and accordingly judgment was given for the Defendants. The case was taken upon appeal to the Exchequer Chamber. It was argued before Willes and Byles , JJ., and Martin, Bramwell ,and Watson , BB.(2), the three Barons being three of the Judges who expressed the opinion to which I have already adverted in Rowbotham v. Wilson(1). The Court unanimously gave judgment for the Plaintiffs, affirming the judgment of the Queen's Bench as to the Plaintiffs' right to support, but reversing it on the ground that the Statute of Limitations was not a bar to the action, as it would have been if the right claimed had been that of an casement. In delivering the judgment of the Exchequer Chamber, Willes , J., said: "The right to support of land and the right to support of buildings stand upon different footings as to the mode of acquiring them; but the character of the right when acquired is in each case the same." Bonomi v. Backhouse came before this House by way of appeal in 1869(3). The judgment of the Exchequer Chamber was affirmed. In giving judgment Lord Wensleydale said: "I think it perfectly clear that the right claimed is not in the nature of an easement, but to the enjoyment by the Plaintiff of his own property, the obligation being cast upon the owner of the neighbouring property not to interrupt that enjoyment." But for opinions expressed to the contrary by very learned and eminent Judges in the Courts below, in the case now under consideration, I should have thought that the character of the right claimed and the mode of acquiring it were settled and conclusively established by the cases of Rowbotham v. Wilson(1), Bonomi v. Backhouse(4), and Backhouse v. Bonomi(3); and I cannot help thinking that the opinions of the two very learned Judges (the late Lord Chief Justice of England and Brett , L.J.),
who delivered judgments in favour of the Defendants in the present case, must have been founded upon a misconception of the facts which existed in the case of Bonomi v. Backhouse(1). I proceed to state my reasons for thinking so. In Angus v. Dalton(2), the late Lord Chief Justice Cockburn is reported to have said: "The cases of Rowbotham v. Wilson(3) and Bonomi v. Backhouse(1) are not at all in point. The right of support there claimed was not of lateral but of vertical support, and was not in the nature of an easement but of a proprietary right, the right of the owner of the surface land to have the support of the strata below as of absolute right independently of user or of right acquired by enjoyment. This distinction was expressly pointed out by Lord Wensleydale when the case of Bonomi v. Backhouse was before the House of Lords." Now in Rowbotham v. Wilson(3) the Plaintiff claimed the right of both adjacent and subjacent support. The instrument under which he acquired the surface shewed that he was not entitled to either; and judgment was given against him upon that ground, but the dicta of the Judges are in point. In Bonomi v. Backhouse(1)the right claimed was, as I have already said, identical with that claimed in the present case. It was not a claim to vertical support as supposed by the late Lord Chief Justice, but a claim to lateral support. It was not a claim by the owner of the surface land to have the support of the strata below as of absolute right independently of user or of right acquired by enjoyment; but it was a claim to lateral support of a house and outbuilding from the soil of the neighbouring proprietor acquired by user and enjoyment for forty years and upwards. In giving the judgment of the Exchequer Chamber in Bonomi v. Backhouse, Willes , J., summed up the whole case in these words(4): "The Plaintiff was owner of the reversion of an ancient house. The Defendants, more than six years before the commencement of the action, worked some coal mines 280 yards distant from it. No actual damage occurred until within the six years. Question, Is the Statute of Limitations an answer to the action?" and the Court held unanimously that it was not. It was in view of, and with reference to, the facts as found by the arbitrator, and stated by Willes ,J, and not of the facts as stated by the late Lord Chief Justice, that Lord Wensleydale made the observations which the late Lord Chief Justice, strangely as it seems to me, relies upon as shewing that the case of Bonomi v. Backhouse(1)is not in point. Brett , L.J., in giving judgment in the present case, said(5): "The judgments in Bonomi v. Backhouse(1) are to be applied to excavations which would have let down the Plaintiff's land though not built upon." His Lordship founds that assumption on the circumstance that there is no reference in the facts stated by the arbitrator, or in the arguments of counsel, to any distinction between the support necessary for the land, if it had been unbuilt upon, and that necessary for the buildings. The reason why no such reference was made (and this I know for a fact, having been counsel for the Plaintiffs from the commencement to the conclusion of the case) was that the findings of the arbitrator and the arguments of counsel were confined to the case made by the Plaintiffs, namely, that they were entitled to have their ancient buildings supported. There is not a trace in the
pleadings, or in the findings of the arbitrator, or in the arguments of counsel, of a claim to have the soil on which the house stood supported by the adjacent soil. Their case from first to last was that their buildings were ancient (that is to say, upwards of twenty years old), and that by reason of uninterrupted enjoyment during that period they had by law acquired the right to enjoy them free from interruption caused by acts done by their neighbours in the adjacent land. I am at a loss to understand why the judgments in Bonomi v. Backhouse(1) should be applied to a claim which was never made, and to facts which were not found, rather than to the claim which was made and the facts which were found.
It only remains for me to say a few words with reference to the fifth question submitted by your Lordships to the Judges. Assuming the right claimed to be a right of property such as I have endeavoured to shew it is, and that in the absence of any evidence to the contrary the law presumes it to have been acquired by uninterrupted enjoyment for twenty years and upwards, the question arises how may the contrary be proved. To this I answer, by evidence explanatory of the user, shewing affirmatively that the owner of the buildings holds his property subject to the right of the owner of the subjacent or adjacent soil to take away the support. Such was the evidence given in Rowbotham v. Wilson(2), The Duke of Buccleuch v. Wakefield(3), Aspden v. Seddon(4),and other cases which might be cited to the like effect. It may be that the presumption might be rebutted in some other way, such as by shewing that the owner of the adjacent or subjacent soil was under disability during the time when the right of support was alleged to have been acquired. It is unnecessary to express any opinion on that point as no such question arose in the present case. If the presumption be one of law, it follows that neither positive acquiescence, nor a grant of support as a matter of fact, by the owner of the neighbouring soil is requisite for the acquisition of the right in question. If the view I take of the case be correct, then the long recognised right of the owner of an ancient house to enjoy it free from interruption by his neighbour will be preserved, and it will henceforth be based upon fact and a sound principle of law, instead of, as heretofore, upon fiction and unseemly verdicts of juries.
Such a right may be created by an actual instrument between the two owners. The right being, not to a thing to be done or used in the neighbour's soil, but to a limitation of the user of that soil by the neighbour himself, does not lie in grant, but would be created by a covenant by the neighbour not to use his own land in any manner inconsistent with the support of the adjoining buildings (see the judgment of Littledale , J., in Moore v. Rawson(5)), and such a covenant might either be express or might be inferred from the object and purport of the instrument, as in Caledonian Railway Company v. Sprott(6).
Leaving the consideration of the right as constituted by actual contract between the parties, questions of great difficulty arise; and, in respect of these, I have most unwillingly arrived at the conclusion that principle and authority are in direct opposition to one another.
On principle it appears to me that it might well be held that every man must build his own house upon his own land, and that he cannot look to support from the land of adjoining proprietors. Such a principle would prevent the owner of a house from ever acquiring a right to lateral support except by actual contract. An opposite view might be taken, for which also much reason could be given. The right of soil to support by adjoining soil is given by our law as a natural right, and it might well have been held that this natural right to support carried with it a right to the support of all those burthens which man is accustomed to lay upon the soil. On this principle, the right to support would arise as soon as the house was built, and would exist independently of user, consent, or contract. It might thus, it appears to me, be reasonable to hold that a house should never have the right of support, or that it should always have it. But I am unable to find any principle upon which to justify the acquisition of the right to support by a house independently of express covenant or grant. For casting aside all technicalities, I think that the only principle upon which rights of a kind like the one in question can be acquired is that of acquiescence. But I further think that, as he who cannot prevent cannot acquiesce, and as the owner of adjoining land cannot prevent his neighbour from erecting a house upon his own land, he can never be said to have acquiesced in the construction of that house, or in the burthen which thence results. Such are the conclusions to which I should be driven by a consideration of this question on principle. When I turn to the authorities of our law bearing on the subject, I find, as it appears to me, that it has been decided that an ancient house does possess the right in question; that a new house does not possess this right; and, consequently, that the right is one which may be acquired independently of express covenant. All the efforts which I have made to find some principle upon which to justify the authorities, have to my own mind entirely failed.
I must now consider somewhat more in detail the views which I have thus briefly expressed. In the absence of express stipulation, rights of the kind to which the one now in question belongs, can, in my opinion, arise in law only from one or other of two sources, namely, either as incidents attached to property by nature herself, or as incidents attached to property by the force of long continued user under circumstances importing acquiescence in such user.
There is no doubt on the authorities that, as the support of soil by soil is in fact a result of nature, so the right to such support is given by the law as , and as a proprietary right. It arises in all its force the moment two adjoining pieces of land are held by different owners and has no connection with the user of the land: Humphries v. Brogden(1); Rowbotham v. Wilson(2). But it is equally clear on the cases that the right to support of buildings by land is not a right ex jure naturæ , but must arise by grant (or, as I think, more accurately speaking, by covenant). "Rights of this sort," said the Court of Exchequer in reference to the right of support of a house, "if they can be established at all,
must, we think, have their origin in grant." (See Partridge v. Scott(1), and to the like effect are the judgments of the Queen's Bench in Humphries v. Brogden(2),and of the Exchequer Chamber in Bonomi v. Backhouse(3).)
That the right in question may be acquired, even where no instrument creating it is shewn, is established as a matter of positive law by a series of authorities which appear to determine, 1, that the owner of an ancient building has a right of action against the owner of land adjoining, if he disturb his land so as to take away the lateral support previously afforded by that land, and 2, that the owner of a new building has no such right. The cases on these points are so fully cited and discussed by Lush , J., in the Queen's Bench Division, and by Thesiger , L.J., in the Court of Appeal, that it will be sufficient to refer to these judgments for their details. Suffice it to add that the authorities, commencing in the year 1803, include rulings at Nisi Prius by Lord Ellenborough , Lord Wensleydale , and the late Lord Chief Justice of England ; an expression of opinion by Lord Blackburn ,and judgments by the Courts of Exchequer and Common Pleas which assert or involve the propositions referred to: and, though no clear authority of an earlier date is found, the distinction between a new and an old house as regards the right to support appears to be hinted at in the cases of Wilde v. Minsterley, 15 Car. 1(4), and of Palmer v. Fleshees, 15 Car. 2(5).
These cases constitute a body of authority, which, in my opinion, must be regarded as conclusive that, according to the law of England , an ancient house possesses a light to support from the adjoining soil; and, therefore, I answer your Lordships' first question in the affirmative.
From what I have said it follows that a right to support may, according to our law, be acquired independently of express contract; and, in order to answer your Lordships' second question, it becomes essential to inquire on what principle, in what time, and under what circumstances, it may be so acquired. Mere lapse of time can never, it appears to me, on any intelligible principle, confer a right not previously possessed; though lapse of time accompanied by inaction, where action ought to be taken, may well have such a result. "Mere lapse of time," said Chief Justice Dallas in Gray v. Bond(6), "will not of itself raise against the owner the presumption of a grant. When lapse of time is said to afford such a presumption, the inference is also drawn from accompanying facts." Strictly speaking, the right in question cannot, I think, be prescribed for; for it is common learning that prescription can only be for incorporeal hereditaments "and cannot be for a thing which cannot be raised by grant"(7), and, as I have already shewn, the right in question, does not, in my opinion, lie in grant.
But leaving such technical questions aside, I prefer to observe that, in my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.
It becomes then of the highest importance to consider of what ingredients acquiescence consists. In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1st, the doing of some act by one man upon the land of another; 2ndly, the absence of right to do that act in the person doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done. In some other cases, as, for example, in the case of lights, some of these ingredients are wanting; but I cannot imagine any case of acquiescence in which there is not shewn to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain, both from reason, from maxim, and from the cases.
As regards the reason of the case, it is plain good sense to hold that a man who can stop an asserted right, or a continued user, and does not do so for a long time, may be told that he has lost his right by his delay and his negligence, and every presumption should therefore be made to quiet a possession thus acquired and enjoyed by the tacit consent of the sufferer. But there is no sense in binding a man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb.
Qui non prohibet quod prohibere potest, assentire videtur (1);per Parke , B., in Morgan v. Thomas(2): ( Pothier, Traité des Obligations , Part iii., Chap. viii., art. 2, § 2; Broom's Maxims, 5th ed., 903), are two maxims which shew that prescription and assent are only raised where there is a power of prohibition.
And again, the cases of Chasemore v. Richards(3), Webb v. Bird(4), and Sturges v. Bridgman(5), have established a principle which was stated by Willes , J., in Webb v. Bird(6), in these terms. After alluding to the law relative to lights as exceptional, he proceeded, "In general a man cannot establish a right by lapse of time and acquiescence against his neighbour, unless he shews that the party against whom the right is acquired might have brought an action or done some act to put a stop to the claim without an unreasonable waste of labour and expense." "Consent or acquiescence," said Thesiger ,L.J., in delivering the judgment of the Court of Appeal in Sturges v. Bridgman(7), "of the owner of the servient tenement lies at the root of prescription and of the fiction of a lost grant, and hence the acts or user, which go to the proof of cither the one or the other, must be, in the language of the civil law, , for a man cannot, as a general rule, be said to consent or to acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which
he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses. It is a mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold that an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence.
Assuming such to be the true grounds and principles of acquiescence, I next inquire how they can be applied to the question of the right of a house to be supported by the adjoining land.
It has been argued at your Lordships' Bar that the doctrine applies in its simplest form to the right in question; for it has been contended that the act of building a house on one piece of land which derives lateral support from the adjoining soil of a different owner is both actionable and preventible, and that, therefore, time constitutes a valid bar. Is such a building actionable? I think not. The lateral pressure of a heavy building on soft ground which causes an ascertainable physical disturbance in a neighbour's soil would no doubt be trespass; but no one ever heard of an action for the mere increment caused by reason of a new building to the pre-existing lateral pressure of soil on soil, producing no ascertainable physical disturbance. If that were the law no one could rightly build on the edge of his land, unless he built upon a rock; and yet the building of walls and other structures on the borders of land is universally recognised as lawful. Nay more, any erection of a house would give a right of action not only to the adjoining neighbours, but to every owner of land within the unascertainable area over which the increase of pressure must, according to the laws of physics, extend. Such an increase of pressure when unattended with unascertainable physical consequences is, in my opinion, one of those minima of which the law takes no heed. The distinction between the principles applicable to water collected into visible streams and that running in invisible ones through the ground, affords a very good analogy to the distinction which I draw between the pressure of an adjoining house which produces a visible displacement of the soil, and that which produces no visible or ascertainable result, but is only a matter of inference from physical science or subsequent experiment.
Is the support of the house by the adjoining soil preventible? I think not. It is of course physically possible for one man so to excavate his own soil as to let down his neighbour's building, and a man may or may not have occasion to excavate his own land for his own purposes, but such an excavation for the sole purpose of letting down a neighbour's house is of so expensive, so difficult, so churlish a character, that it is not reasonably to be required in order to prevent the acquisition of a right. In fact in the case of adjoining houses, it would be to require a man to destroy his own property in order to protect his rights to it.
In the case of air, it is physically possible for the adjoining owners to build a lofty wall round a windmill and shut out the access of air; and in case of underground water it would, at least in some cases, be physically possible to construct a water-tight barrier through all the water-bearing strata of the soil; but such acts would require such an unreasonable waste of time and money that the not doing of them has been held to import no acquiescence in the flow of air and water respectively: Chasemore v. Richards(1); Webb v. Bird(2).
If the building of a house by one man which derives support from the adjoining land is neither actionable nor preventible by the owner of the adjoining soil, it seems difficult to see on what principle a covenant as to the user of his own soil can be inferred against the man who can do nothing.
The right to support and the rights to the access of light and air are very similar the one to the other, and are broadly distinguished from most other easements or analogous rights. They are negative as contrasted with affirmative easements. They are analogous with servitutes ne facias in the civil law. Such rights when they arise spring, not from acts originally actionable or unlawful on the part of the dominant owner, but from acts done on his own land and within his own rights; they confer on the dominant owner not the right to use the subject, but a right to forbearance on the part of the owner from using the subject, i.e ., they create an obligation on the owner of the servient tenement not to do anything on his own land inconsistent with a particular user of the dominant tenement(1). They rest on a presumption or inference not of a grant by the neighbour of a right to do something on the grantor's land, but of a covenant by the owner not to do something on his own land.
It is difficult in principle to see how such rights can arise from the doing of lawful acts on the dominant tenement, except in the few cases where the owner of the servient tenement can both lawfully and with reasonable ease interfere to prevent the continued user by his neighbour.
The close likeness between the right to support and to light has been much pressed on your Lordships, as a reason for inferring a right to support by analogy with the cases which before the Prescription Act established the right to light. The peculiarity of these cases is that the Courts required the servient owner to submit to the acquisition of the right by his neighbour or to signify his dissent by putting up an actual obstruction. "If his neighbour objects to them" ( i.e ., to the windows) said Bayley , J., in Cross v. Lewis(2), "he may put up an obstruction, but that is his only remedy." This rule as to light appears to have arisen without any full discussion in the Courts of the principle on which it rests. But it is plain that the erection of an obstruction was thought so slight a matter that it might reasonably be demanded of the servient owner to negative acquiescence on his part. This rule I consider to be an anomaly, and therefore as not furnishing any principle which ought to be extended. "It is going very far," said Lord Wensleydale in Chasemore v. Richards in your Lordships' House(3),"to say that a man must be at the expense of putting up a screen to window lights to prevent a title being gained by twenty years enjoyment of light passing through a window." "These cases," said Willes , J., in Webb v. Bird(4), "as compared with the general law are anomalous." "The case of the right to light before the statute stood on a peculiar ground," said Blackburn , J., in the same case, in the Exchequer Chamber(5). "Anyone," said Bramwell , L.J., in Bryant v. Lefever(6), "who reads the cases relating to the acquisition of a right to light, will see that there has been great difficulty in establishing it on principle."
Accordingly, in Chasemore v. Richards(1), your Lordships' House declined to apply the analogy drawn from lights to water passing through the earth in unascertained courses, and the Courts of Common Pleas, Exchequer Chamber, and Appeal, have declined to apply it to the cases of air (Webb v. Bird(2), Bryant v. Lefever(3)), and of noise ( Sturges v. Bridgman(4)).
Lastly, the way in which the Prescription Act deals with the right to light is significant of its anomalous character. It deals, on the one hand, with easements of an affirmative character which are capable of interruption by the servient owner. It deals, on the other hand, not with negative easements generally, but with the right to light alone of all the class to which it belongs. I believe that this argument, derived from the law of lights, has exercised a great influence on the establishment of the right to support, but I consider that in principle it affords no justification for the establishment of such a right. In order that acquiescence may arise there must, in my opinion, be the power to prevent; and this I conclude, for the reasons I have given, is wanting in the case of the support of buildings by adjoining soil. But there is, in my humble opinion, equally wanting another element, namely, knowledge in the owner of the servient tenement. No doubt the owner of property knows or must be taken to know what occurs openly and visibly on his estate or in its immediate neighbourhood, but not that which takes place underground or in a secret manner. Hence he is justly charged with knowledge that his neighbour walks habitually over his land, or has erected a house with windows deriving light over his fields: but he would not be affected with knowledge of the user of a gangway or gallery constructed in the course of secret mining operations. Now the question whether a building does or does not derive any practical support from the neighbouring land is one which it appears to me often extremely difficult to answer even for the building owner, and far more difficult to answer for the adjoining owner, who may be ignorant of the nature of the structure erected behind a hoarding - of the incidence of its burden on the soil - of the depth and character of the foundations, whether extending to the rock or resting on the surface soil - and of the nature of the subsoil itself. He may indeed excavate his own land and probably answer the last of these questions; but on the other topics he has no certain means of information, except by a trespass or an impertinence. It is evident that where the building is on the outcrop of strata, or where the beds have been intersected by dykes or disturbed by faults, it would be difficult or impossible to tell what is the incidence of the burden created by a house except by actual excavation and experiment. The circumstances of the case render it, in my opinion, unjust to impute to a neighbour that plain knowledge of what is going on in his neighbourhood which can alone justify the depriving a man of a right to use his own land in a lawful manner.
In the case of Solomon v. Vintners' Company(5) the question was as to the right of support of one house by another not immediately adjoining, on the ground of thirty years enjoyment of such support, and there Bramwell , B., made some observations which seem very relevant to the present inquiry. Supposing
such a right to exist "it must," said the learned Judge, "be either as a matter of absolute right, or as a matter of prescription, or under the Prescription Act , or as founded on some supposed lost grant. In any of these cases it can only exist if the benefit was one that was enjoyed as of right, which cannot be unless it was openly and visibly enjoyed. An enjoyment must neither be vi, precario , nor clam, it must be open. Now when one house visibly leans towards another, a person may make a tolerably shrewd guess that it is partly supported by the other, but it will be only a conjecture." .... "In fact it is impossible to say which house is being supported. It is true that in this case when the Defendant's house was removed the Plaintiff's house fell in; but probably nobody who saw the block of buildings would have guessed that such a result would have followed. If anyone had done so, it would have been but a matter of conjecture. Therefore, supposing that the Plaintiff for more than twenty years had an enjoyment which he says now ought to continue, it was an enjoyment clam, not open, and consequently not as of right;" .... consequently, "no title was gained under any of the different ways in which it has been surmised it might have been gained." On principle I conclude, therefore, that acquiescence does not apply to the right in question.
Another argument in favour of the acquisition of the right in question has been based upon an analogy with the operation of the Statute of Limitations. "It seems to me," said Lush , J.(1), "to be the necessary consequence of the that such an easement" (i.e., an easement not within the Prescription Act), "should be gained by a length of enjoyment commensurate with that by which a title to the house is gained. It would be a strange anomaly to hold that a title to the house should be acquired, and not a title to that which is essential to its existence; that the law which bars the owner from recovering the tenement itself after he has acquiesced in a usurped ownership by another for twenty years, yet leaves him at liberty, if he happens to be adjoining owner, to let it down and destroy it altogether, by taking away that which has been its natural support during the whole period. I cannot help thinking that the revolting fiction of a lost grant may now be discarded in view of the necessary effect of the upon such an easement as this."
To the extent of holding that, if the right is to be acquired at all by lapse of time, twenty years is a reasonable period to confer the right, I think that the analogy is sound; but beyond that it appears to me not to go. The presupposes a right of action and takes it away if not put in force for twenty years; that furnishes no reason for casting a new burden upon a man where he has no capacity to bring an action or to create a physical obstruction to the exercise of the alleged right. To take away a right of action, if not put in force within a reasonable time is one thing; to take away a man's right in his property because he does not bring an action which he cannot bring, seems to be quite another thing.
The authorities which establish this existence of the right in question afford no distinct statement of the principle upon which it reposes, but there are to be found in them references to the open character of the user, to the knowledge of the servient owner, and to the lapse of time, which seem to shew that some
notion of acquiescence was in the minds of the learned Judges; but when I ask myself what difference it makes whether the user be open or secret to a man who cannot stop such user, what is the value of knowledge to a man who cannot act on it, and what is the effect of a lapse of time in the course of which nothing can be done, I find myself unable to answer these inquiries; and I think that the circumstances under which the building has been erected and the support enjoyed are immaterial. I regard the right as resting, not on any principle, but solely on a series of authorities which disclose no clear ground for their existence; but as it has been established that the right in question may be acquired by the lapse of time, I think that the period of twenty years may and ought to be held a sufficient one to confer the right.
The period of twenty years was that limited by the statute 21 James 1, c. 16, for bringing possessory actions and making entries; it was applied by the Judges to ceases of prescription, so that before the the uninterrupted enjoyment of an easement for that length of time was constantly held to afford a ground for presuming the necessary grant or covenant; it has been referred to in Stansell v. Jollard, before Ellenborough , L., in 1803(1), in Dodd v. Holme(2),and in others of the authorities relative to this very right as sufficient to confer it; and it may well be maintained as reasonable in itself. I therefore answer your Lordships' second question in the affirmative.
I have already shewn that I view the right in question as the result of an artificial rule of law, with which knowledge and acquiescence have nothing to do. I therefore answer your Lordships' third question by saying that in my opinion if the acts done by the Defendants would have caused no damage to the Plaintiff's building as it stood before the alterations made in 1849, it is not necessary to prove that the Defendants or their predecessors in title had knowledge or notice of those alterations, in order to make the damage done by their act in removing the lateral support after the lapse of twenty-seven years an actionable wrong.
For the reasons already given, I submit (in answer to your Lordships' fifth question) my opinion that the course taken by the learned Judge at the trial of directing a verdict for the Plaintiffs was correct, according to the law of England as it now stands. His conclusion involves the proposition that, by the mere act of his neighbour and the lapse of time, a man may be deprived of the lawful use of his own land, a proposition which shocks my notions of justice, and against which I have struggled, but have struggled in vain; because, as I repeat with regret, I can find no reasonable proposition on which to rest the long line of decisions on the question before your Lordships. It would be presumptuous in me to inquire how far your Lordships will be bound by this long catena of authorities, or free to act on reason and principle, and I therefore humbly submit to your wisdom the conflict which appears to me to exist in this important case between the two governing principles of our laws.
must, therefore, be answered in the affirmative. Before replying to the rest, I propose to state my view as to the nature of this right of support and the mode of its acquisition.
It has been urged upon your Lordships that the support from the adjoining land to which an ancient house is entitled is a natural right of property. In one aspect, but in one aspect only, it may be viewed as such, in so far namely as it arises out of the lawful use by a man of his own land. But in truth it also involves something beyond the natural use of a man's soil, viz., a collateral burden upon his neighbour, limiting, after a defined interval of time, the otherwise lawful use of the neighbour's own property. Under this aspect it is a right which cannot be natural, but must be acquired.
Nor is it necessary in order to account for its existence to invent the pretext of an imaginary positive law conferring the privilege as an exceptional boon on houses built before memory began. .A simpler explanation will suffice. That a right of support for buildings may have a lawful origin at any moment is clear, for it can be created by agreement made in due and binding form with an adjoining owner. All that the law, therefore, seems in the case of support for ancient buildings to do is to repeat the operation it performs so constantly in the case of other immemorial user. It assumes some possible lawful origin for the enjoyment, prior to the dawn of legal memory. So long as the Courts of Common Law were hampered by the barriers between law and equity, this doctrine was stated in a necessarily narrow way as if it were some "legal" origin that ought to be presumed. At the present day, when law and equity are fused, the proposition may with advantage be recast in a more liberal form, namely, that the law will presume any lawful , and not merely any legal, origin consistent with the circumstances of the case.
A binding and irrevocable concession on the part of some adjoining owner made in bygone days, or else an arrangement effected, expressly or by implication, upon the separation of one property into two parcels, is the source to which reason turns for the requisite lawful origin of all immemorial rights which either burden a neighbour's land or curtail his natural use of it. This is the theoretical beginging of prescriptive affirmative easements. To this initial source is ascribed the ancient window light: Aldred's Case(1). To a similar commencement by a parity of reason, and not without the sanction of authority, may be referred the right of an "ancient" house to its immemorial support: Partridge v. Scott(2); Wyatt v. Harrison(3); Humphries v. Brogden(4).
Your Lordships, however, in the present appeal have to consider the character and limits of a presumption in favour of the right of support for a modern building which has been held to arise after a much shorter period of user, viz., user for twenty years. Unquestionably, in the case of affirmative easements and of window lights, after twenty years user of a special kind, a presumption of right has been sanctioned by the Courts independently of and before the . I propose to examine its principle and nature, and, having done so, to consider whether a title by twenty years user in the case of support for buildings is
merely an illustration of the same rule applied to distinct subject-matter, or a rule based on any different grounds and accompanied with any other limitations.
First, then, as to affirmative casements and window lights. When enjoyment of a certain kind has existed from time immemorial, the law infers for it, as we have seen, any possible lawful origin. But user of a shorter period may well be surrounded with circumstances which will point, unless explained, to the conclusion that such user is only the enjoyment of a right. "This is founded," says Wilmot , C.J., speaking of the special case of window lights: Lewis v. Price(1);" on the same reason as when the lights have been immemorial; for this" ( i.e ., the shorter period) " is long enough to induce a presumption that there was originally some agreement between the parties."
For a considerable period in the history of English law, there may probably have been no hard and fast line as to the length of user short of the date of legal memory which would be sufficient in the case of an alleged easement to authorize the inference of a right. It is at all events certain that the twenty years limit did not make its appearance in our law till a comparatively recent date. In the reign of Queen Elizabeth , when Pope v. Bury(2)was decided, it had not been introduced so far as window lights were concerned, nor is there any trace of its existence up to this time in the case of any casement affirmative or negative. But in the year 1623 the statute of 21 Jac. 1, c. 16, was passed, by which entry into lands was prohibited, except within twenty years after the accruer of the right, and, as a necessary corollary, an adverse enjoyment of lands for twenty years became a bar to any action of ejectment. Easements were not and could not be treated as within the statute; but the idea of twenty years was apparently borrowed by the Courts as a quasi parliamentary standard, for the use of Judges and juries, by which to mete out a reasonable measure of time. In the case of affirmative easements the twenty years rule obviously thus began (2 , 175). It was in the same manner that the twenty years rule was applied by very slow degrees to window lights: Lewis v. Price; Dougal v. Wilson; Darwin v. Upton, per Buller, J.(3). It was not a positive proprietary law, for the rule at the date of Bury v. Pope(2)was not a part of the common law, and the Judges have no power to engraft new laws on old. In truth it was nothing but a canon of evidence. In Read v. Brookman(4) Buller , J., speaks of it "as a rule which has been laid down respecting the length of time which shall be sufficient to raise a presumption."
Similar specimens of judge-made rules of proof are to be found in other passages of the law of evidence. If seven years elapse after a traveller has crossed the four seas without his being heard of, the presumption of the continuance of his life ceases and a counter-presumption arises that he is dead. This seven years rule has been said to be adopted by the Courts in analogy to the statute 19 Car. 2, c. 6, with respect to leases dependent upon lives, and 1 Jac. 1, c. 11, with respect to bigamy. Traces, on the other hand, of some such limitation appear earlier than these statutes in the books; but whether the judge-made rule upon the subject of the continuance of life be imitated or not from the statutes of the realm, it is at best a mere maxim of evidence recommending an inference
which it is for the jury to find and which may be rebutted. The original presumption that after twenty years a bond had been satisfied by payment, was in like manner a rule of evidence, first introduced, it is said, by Lord Hale , and accepted slowly and reluctantly by the Courts: Oswald v. Legh(1). The presumption that after thirty years a document produced from the proper custody has been duly executed is another instance of such rules. In all these, the inference of which the Courts approve must be drawn, not by the Court, but by the jury; in none of these is the inference conclusive.
The form in which the presumption built upon a twenty years' enjoyment has usually been framed is that of a lost grant or covenant, according as the right claimed is to an affirmative or a negative casement. At the time when the twenty years rule was first promulgated by the Courts, a document under seal was the only specific mode known to the common law in which an incorporeal hereditament could be created. But there are many cases in which equitable rights in the nature of an casement arise without any deed at all. There may be a binding agreement for valuable consideration not under seal. There may be stipulations which would not otherwise run against the land, but which will bind a purchaser with notice. Or there may be conduct or inaction on the part of an adjoining owner which will in equity preclude him from denying that a right in the nature of an casement has been acquired against himself. Any of these suppositions under appropriate circumstances may conceivably furnish a lawful origin of which Courts of Law, released in these later times from the narrow confines of a limited jurisdiction, may properly take cognizance. Even at a time when a deed was the only origin for an easement known to the common law, language is found in the judgments of the Law Courts suggestive of the notion that this lost deed was merely the specific form in which the lawful origin had taken shape.
It is further to be noted that the exact inference recommended by the law was not, in the case of affirmative easements, that the consent of the adjoining owner had been first given during the twenty years user, but that some lawful origin preceded the earliest act of enjoyment. The lost grant was in theory anterior to the user; it was not the shape in which the submission of the servient owner was supposed during the twenty years td mould itself: Doe v. Reed(2); Moore v. Rawson(3). In this sense it is inaccurate to speak of such rights as arising from the twenty years acquiescence of the servient owner. His acquiescence for twenty years, in the case of affirmative easements, was evidence that the right had existed previously.
It appears to be manifest, in spite of some inexact expressions of earlier Judges, that this presumption of a lost grant or covenant was nothing more than a rebuttable presumption of fact. This view is supported by a chain of authorities, the earliest of which are collected in 2 Wms. Saunders , 175A, and all of which have been examined and discussed in the judgments of Cockburn , L.C.J., and Brett and Thesiger , L.JJ. It must at the same time be conceded that the Courts exhibited a disinclination to treat the presumption as an ordinary one. They preferred to leave it in a logical cloud, and juries were encouraged, for the sake of
quieting possession, to infer the existence of deeds in whose existence nobody did believe: Eldridge v. Knott(1). Some metaphysical industry indeed has been expended with the view of explaining how a presumption of fact might yet be hedged round with an artificial authority and prestige which would allow it to be treated as something more than a mere presumption of fact. Thus it has been argued that the imaginary deed was legal machinery only, the only question being, as was said, whether the legal consequences really incident to a valid grant were well annexed to the state of facts disclosed by the twenty years user: Starkie (2).The embarrassment of the Courts and of the profession appears, from the judgment of Parke , B., delivered shortly after the passing of the Prescription Act , in Bright v. Walker(3), and from the report of the Real Property Commissioners which preceded the passing of that statute.
But it seems a contradiction in terms to maintain that this rebuttable presumption of the existence of a grant would not at any time have been necessarily counteracted by actual proof that no such grant ever had been made. No case, it is true, occurs in which the presumption is recorded as having been displaced in this manner at Nisi Prius, though proof that no such deed could be efficacious in law was acknowledged to put an end to the presumption. But the reasoning of Brett , L.J., in the Court of Appeal in this case, seems to me to shew what would, before the recent fusion of law and equity, have been the necessary result of positive disproof of the supposed deed, though I think, with deference, that he overlooks the altered condition of the problem due to the modern recognition in Courts of Law of equitable rights. And with regard to the law as it formerly existed, the fact that the presumption, in the reign of Queen Elizabeth , was unknown, proves, I submit, to demonstration, that it is at most an artificial canon of evidence and nothing more. In Darwin v. Upton(4), Gould , J., explains its nature by the illustration of a demand and refusal which, in an action in trover, are evidence of a conversion, but not the conversion itself. It has always been the law that this evidence of conversion is for the jury, and that if a jury find simply a demand and refusal, the Courts have no power as a matter of law to infer a conversion: Vaughan v. Watt(5); Chancellor of Oxford's Case(6); Starkie (7).
The question, so far as lost grants and lost covenants are involved, seems to me to have lost much of its practical importance, owing to recent changes in the law. It would not now be sufficient to disprove a legal origin, unless the possibility of an equitable origin were negatived as well.
Such is the history and character of the twenty years rule as applied to affirmative easements, and further to the negative easement of the window light. Is there any valid reason to doubt that such also is its history and explanation as applied to the claim of support for modern buildings? The presumption raised in cases of support to buildings by the shorter user of twenty years, is modelled upon the presumption growing out of immemorial enjoyment. The one presumption is the echo at a distance of the other. The distinction is, that the shorter
period gives rise to a rebuttable, the longer to an irresistible inference. What necessity is there for inventing the hypothesis of some positive law in virtue of which in some special way a house after twenty years user is to be clothed with an absolute right to support as if it were an ancient house? The objection to this theory always is the same. Such a positive law apparently did not exist prior to the Statute of James . Judges have had no power to create it since.
There are unquestionably certain broad differences between affirmative easements and the negative easement of a window light. There are differences between the window light and the right of a modern house to support from the adjoining soil. In the first place, it is true that the window light, unlike a right of way, does not begin in acts of enjoyment which are an encroachment upon the neighbour's soil. "It is acquired," says Littledale , J., in Moore Rawson(1), "by occupancy." It is acquired, that is to say, by occupancy upon one's own soil as distinct from user upon another's and without any necessity, therefore, to assume that the occupancy is preceded by a grant. But a consensual origin at one time or another, in the case of a title to window lights, the law still implies: Lewis v. Price(2); Cross v. Lewis(3).
The right to support for buildings from the neighbouring land is more allied in some ways than the window light to the class of affirmative easements. The man who uses his neighbour's soil for the support of his house affects his neighbour's land more tangibly than the man who opens a window to overlook it. In the instance of the building which is supported we have a direct lateral pressure upon the adjoining soil. There is certainly no case which decides that this pressure gives rise to a right of action on the neighbour's part, and practical reasons of convenience may be adduced against such a surmise, although it might perhaps be argued that an action ought on principle to lie against, and an injunction be obtainable to restrain, the man who is actually availing himself of his neighbour's soil and using it in a manner which in twenty years will be evidence of the acquisition of a right so to do. But assuming from the silence of the books that no right of action is created by the adverse enjoyment of support for buildings, the right to support may none the less be a negative easement like light, and capable of a similar origin. It is on the theory of agreement made at some time or another between the neighbours that the right to support is based in the case of an ancient house. Borrowing the argument used as to lights by Wilmot, C.J., we may say that the twenty years rule is "founded on the same reason" as the immemorial title.
If, however, authority be needed in support of reason for the view that the neighbour's presumed consent is the foundation of the modern as well as the ancient title to support for buildings, it will be found in the language of the Courts in various cases: Partridge v. Scott(4); Humphries v. Brogden(5); Bonomi v. Backhouse(6).
Nor can I admit that any reason exists why in the case of support to buildings the same doctrines should not regulate the quality and nature of the user required as apply to the mode of acquisition of affirmative easements and of light.
Some conditions there surely must be determining the character of the enjoyment. If it be otherwise, the case of support to buildings so far from being analogous to the case of lights, as Lord Ellenborough and others have called it, is an anomaly without parallel in English law. For mere possession is, as a rule, inadequate to create by lapse of time an adverse right which is to limit a neighbour's enjoyment of his property. "Mere lapse of time," says Dallas , C.J., in Gray v. Bond(1), "will not of itself raise against the owner the presumption of a grant. When lapse of time is said to afford such a presumption, the inference is also drawn from accompanying facts." Such too was the principle of the Roman law. The cantilena nec clam, nec vi, nec precario is a doctrine not peculiar to affirmative easements, though we are chiefly familiar with it in that chapter of the law of England . It seems in truth a natural condition of any inchoate user which is to mature by length of time and apart from statute into the presumption of a right acquired at a neighbour's expense. Whatever may be the peculiarities of the right of support to buildings as contrasted with ordinary easements, and I admit that such exist, why should the generic maxim be discarded as inappropriate when we come to deal with support to buildings?
It is no doubt urged that the right to such support differs from all other acquired rights in this, that the enjoyment of support by a building cannot be reasonably interrupted. This cannot be true always, even if it is true at times. There may be circumstances in which any interruption of the modern building's support would be attended with great expense and even danger to the property of the servient owner. But is there any distinction in this respect between the window light and the right of support except what may be called a distinction of degree? In some instances it is easy to interrupt the enjoyment of both. In some it will be difficult to interfere with either. Circumstances may be conceived in which it would be as serious an enterprise to block out a light as to withdraw the support of the house. Yet there can scarcely be an instance in the case of either in which the interruption would not be physically possible if it were worth the necessary trouble and expense. The difficulty of interrupting percolating water is of a wholly different kind, and far more insurmountable. But admitting that physical possibility or impossibility of interruption may not be the test, and that no right of support ought to arise by lapse of time where interruption is not practically feasible it follows, not that a right of support for buildings can never be acquired as ordinary easements are, but merely that a right of support for buildings cannot always and under all circumstances be acquired. In like manner our law has distinguished between that access of air, light, and wind which its definite and can be interrupted, and that access of air light, and wind which is indefinite, incapable of interruption, and which accordingly never grows into a right.
If, indeed, the law recognised no such thing as the right of support to buildings as it recognises no rights to the access of percolating subterranean water there might be good grounds for saying that the possibilities of interrupting a building's support were possibilities of which the law took no account; but the contrary is the case. The law of England treats the right of support for buildings as a
right perfectly susceptible of acquisition, and it does so, I conceive, upon the very ground that the enjoyment can usually as a fact be interrupted, even though interruption may be very inconvenient. "Although," says Lord Campbell in Humphries v. Brogden(1), "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 one 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, the right to support for a new building erected near the extremity of the owner's land may be explained on the same principle." This is a considered judgment of Lord Campbell and Patteson , Coleridge , and Erle , JJ. They distinctly refer the right of support for the modern building to the hypothesis of a modern covenant, and do so on the express ground that the adjoining owner can in fact interrupt the user, expensive or inconvenient as the interruption may be. To assume, indeed, that interruption in such cases is out of the question, and that a right nevertheless is gained by user, would be to make the right of support for buildings a right at variance with all the principles of English law. Nor would the difficulty be avoided by calling it a law of property. This would be only creating for its benefit a new class in the category of rights of which it will be a solitary member. To say, on the other hand, that the Courts have created such a doctrine without rhyme or reason, is to do scant justice to the great authority of the Common Law Courts of past ages. Surely it is simpler to believe that the law deals with support to buildings as with light, considers it an enjoyment capable on the whole of interruption, and capable therefore of ripening into a right where interruption does not occur. It might, perhaps, be added with some show of reason that the user ought, if the analogy of lights and other easements were to be followed, to be neither violent nor contentious. The neighbour, without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakeable protests to destroy its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised: Eaton v. Swansea Waterworks Company(2).
I am aware that this view is not one that has been laid down in any decided case. On the contrary, it has been said that in the case of window lights, the only manner in which enjoyment could be defeated before the Prescription Act was by physical obstruction of the light. But for the language of some of the Judges, one might well hesitate with Lord Wensleydale , in Chasemore v. Richards(3), in accepting this statement of the law as reasonable. Such was not the doctrine of the civil law, nor the interpretation which it placed upon the term " non vi "; but the difficulty at any rate is not greater with respect to the right of support than that which might easily, up to the passing of the Prescription Act, have occurred in the analogous case of a window. If in any particular instance interruption is impracticable, and if perpetual protests in such instances are also legally useless, there is no necessity that I know of in law or in sense to
assert that any right will in that special instance be the consequence of non-interruption. I am not, however, aware that in the case of Angus v. Dalton,which is now before your Lordships, it ever was or could be suggested that the enjoyment of support was in any degree incapable of interruption.
Finally, why should not the condition be recognised in cases of support for buildings which prescribes that the user must be open? In the negative easement of the window light the condition is no doubt almost necessarily fulfilled. The adjoining owner, if he is a person capable in law of being affected by adverse user, has notice either by himself or his agents of the construction of the window. Probably with respect to support the character of the building and the nature of the soil often afford an equal notice to the adjoining owner of the enjoyment, out of which a right is developing; but I do not regard actual notice to the adjoining owner as the crucial point: Cross v. Lewis(1). The publicity or openness of the enjoyment seems to me the real test. Without this publicity the quality of the user cannot be such as is uniformly required to raise the inference of an acquired right. If there be peculiarities in the construction of the building which render the enjoyment secret, the user is not strictly adverse. It is said that it would be an idle ceremony to acquaint a neighbour with the fact of an user which he cannot reasonably prevent. I have already stated what seems to me to be the real value of the argument drawn from the supposed difficulties of interruption. It must not, however, be forgotten that the real question is what is the quality of the user? Has it been an enjoyment in the face of day which reasonable neighbours might see and understand? If so, the presumption arises that it is of right, whether such right has been conceded during the twenty years user or at any previous time.
It has been asked whether a man, whenever he increases the internal weight of portions of his house, is bound to give notice to his neighbours. But if, by the increased weight, he is seeking to acquire additional rights against the neighbour, the analogy of all law would appear to demand that his enjoyment should be open. There is no abstract difficulty in leaving it to the jury to say whether the conditions of publicity have in fact been fulfilled. Your Lordships have been told indeed in argument at the Bar that to submit such questions to the jury would be to render titles of adjacent owners insecure and dependent on matters of much nicety. The danger would not be so great as is assumed, for in most of such cases a right to some support will ex hypothesi have been acquired, and adjoining owners will not be able easily to do wanton mischief. Nevertheless, the suggested danger, if it exists at all, ought not to be overlooked. But it can readily be cured by legislation. All that is needed is to bring into the existing Prescription Act the omitted case, if omitted it really has been, of a claim to support for buildings, and to deal with it as window lights have been dealt with.
If the user complies with the necessary conditions, the presumption, after twenty years, of some lawful origin will arise. A case thus primâ facie established may be met in two ways. The Defendant may disprove the user or its quality; or in the last resort he may, if he can, while admitting the user attempt to answer the presumption of some lawful origin, a task which he will find difficult
in practice, inasmuch as mere proof of the absence of any covenant under seal, for the reason I have above indicated, will not any longer, since the fusion of law and equity, cover the necessary ground.
The above, I submit, is a fair account of the law as regards the claim to support for a modern house, and of the application to such a claim of the twenty years rule. The adaptation of the twenty years rule to the case of support to buildings has no doubt been slow. It has been accepted gradually and with hesitation, a fact which of itself bears testimony to the soundness of the view that it is no part of the positive law of property. Its application to the case of lights was equally gradual, for the rule as to lights had not become stereotyped up to the beginning of the reign of George III. (See Lewis v. Price(1)). The twenty years rule as to the presumed satisfaction of bonds also grew into force by slow degrees. But I think that there is an ample weight of authority to shew that in cases of support to buildings, such a rule now at last prevails, and that it can be applied in substantial accordance with the general principles of the law of easements. Yet even if the case of support for buildings differs materially from all easements affirmative or negative, if it stands alone by itself as a separate species of pseudo easement, can it on the other hand be doubted that the twenty years rule as found in connection with it is really the same presumptive rule which governs easements in general, and that it is the doctrine applicable to the acquisition of easements which the law of England has chosen to adapt to the special, and in some ways the anomalous case of support to a modern building.
Against the above view has been placed the language of Lord Wensleydale and Lord Cranworth in the case of Backhouse v. Bonomi. "I think it perfectly clear," says Lord Wensleydale (2), "that the right in this case was not in the nature of an easement, but that the right was to an enjoyment of his own property, and that the obligation was cast on the owner of the neighbouring property not to interrupt that enjoyment."
I have already considered to what extent and in what sense the right to support for buildings is a right to use a man's own property; to what extent it also involves a collateral title to impede the neighbour in the natural use of the neighbour's own. It is to this important distinction between the case of support to houses and the case of an ordinary affirmative easement that Lord Wensleydale and Lord Cranworth appear to me to be referring, and a similar criticism applies to like expressions which at times have fallen from other Judges. Backhouse v. Bonomi(2) was in any event a case which proceeded on the basis of the existence in that special instance of the full right under discussion. The arbitrator had found all and every lawful origin which in law could create it. Whether the right when created arose from the presumption of a grant or from some imaginary law of property was not therefore necessarily in question.
In Stansell v. Jollard(3) the character of the user does not seem to have been disputed nor the presumption challenged. Lord Ellenborough indeed places the origin of support and lights on the same footing. He merely held that "Where, as in the case before the Court, a man bad built to the extremity of his soil, and had enjoyed his building above twenty years, by analogy to the case of lights, he
had acquired a right to support." If the right of support is indeed analogous to the right to a window light, then the law would seem to be such as I have argued that it is.
Nor in Hide v. Thornborough(1) did any question apparently occur as to the quality of the user, nor was any attempt made to disprove the presumption. Here, again, the right was taken as having arisen, if it was a right acknowledged by the law. "If," said Parke , B., "there was twenty years enjoyment by the Plaintiff of the support of his house from the neighbour's land, and it was known that the Defendant's land supported the Plaintiff's house, that is sufficient to give him a right of support." This is but recognising the proposition that the user must be open. In Partridge v. Scott(2), the right is ascribed to the idea of a grant which ought not, at common law, says Alderson , B., 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. I abstain from reviewing at length the other cases which bear on this point, as they have been abundantly examined by Thesiger , L.J., in the Court of Appeal below.
I now proceed to apply the above reasoning to the questions put by your Lordships.
1. This question I have already answered in the affirmative.
2. The period during which the house had stood was sufficient to give the Plaintiff the same right as if his house was ancient, provided the enjoyment fulfilled the conditions I have described, and provided it was not shewn by the Defendant that the right had no lawful origin.
3. It was necessary to prove that the Plaintiff had openly enjoyed the additional support rendered necessary by his alterations. It would of course be an open enjoyment if the Defendants or their predecessors in title had express knowledge or notice of the alterations and of their character. But the enjoyment of the additional support would also be open if the appearance of the altered building was such as to afford a reasonable indication to the adjoining owner of the alterations that had taken place. Except to this extent it was not necessary in my opinion to prove either knowledge or notice to the adjoining owner.
4. If the alterations were openly enjoyed, I do not think it would be necessary also to prove knowledge of the effect of the alterations.
5. The course taken by the learned Judge seems to me to have been wrong. It should, I submit, have been left to the jury to find whether the enjoyment was in fact open. I may add that I consider this would be the correct ruling at Nisi Prius, whether the right acquired after twenty years user be a right of property or a right acquired as I have described, for I do not regard the doctrine as necessarily peculiar to the law of affirmative easements. The law as to the quality of the user required to raise the presumption, and as to the rebuttable character of the presumption when raised should, I submit, be laid down as I have indicated. The exact forms of the questions fur the jury would depend on the issues arising out of the Defendants' case. I think that the learned Judge was premature in assuming that no issues under the circumstances were likely to arise. One already had arisen upon the admitted facts, viz., whether the user was open or the reverse.
The House took time to consider.
1881. June 14.
My Lords, in this case I have had the great advantage of reading the printed judgments prepared by my noble and learned friend the Lord Chancellor, and by my noble and learned friend opposite (Lord Blackburn ). I had prepared a judgment of my own, but I have found that it would add nothing to what is about to be said, and much better said, by my noble and learned friends. I therefore content myself with saying that I entirely concur in the conclusions at which they have arrived, and in the reasons which they have given for them. I have to thank my noble and learned friend on the woolsack for allowing me to say this at once, as I have to be elsewhere.
My Lords, your Lordships are much indebted to the learned Judges by whom you have been assisted in this case for their careful and valuable opinions, in which the authorities have been fully examined. I do not myself propose to refer to those authorities, except so far as they seem to me to bear upon principles which have been brought into controversy, and as to which the learned Judges (even when they concur as to the practical result) are not agreed.
The questions upon these appeals may be reduced, shortly, to two:- The first, whether a right to lateral support from adjoining land can be acquired by twenty-seven years' uninterrupted enjoyment for a building proved to have been newly erected at the commencement of that time; the second, whether (if so) there was anything in the circumstances of this case, as appearing in the evidence, sufficient either to disprove the acquisition of such a right, or to make it dependent upon some question of fact, which ought to have been submitted to the jury.
There was another point, made by both the petitions of appeal, which I only mention, lest it should appear to have been overlooked The action was brought by reason of the falling of the Plaintiffs' house through the excavation of the adjoining land of the Commissioners, in the course of certain works executed for them by the Appellant Dalton , under a contract, and for Dalton by sub-contractors. The Commissioners disputed their liability for the acts of Dalton , and Dalton disputed his liability for the acts of his sub-contractors. The same point arose, under very similar circumstances, in Bower v. Peate(1), and was decided adversely to the contention of the Appellants. It follows from that decision (as to the correctness of which I agree with both the Courts below) that, if the Plaintiffs are entitled to recover at all, they are entitled to recover against both the Commissioners and Dalton .
I proceed to consider the principal questions in the case.
In the natural state of land, one part of it receives support from another, upper from lower strata, and soil from adjacent soil. This support is natural, and is necessary, as long as the status quo of the land is maintained; and, therefore, if one parcel of land be conveyed, so as to be divided in point of title from another contigous to it, or (as in the case of mines) below it, the status quo of support passes with the property in the land, not as an easement held by a distinct title, but as an incident to the land itself, sine quo res ipsa haberi non debet . All existing divisions of properly in land must have been attended with this incident, when not excluded by contract; and it is for that reason often spoken of as a right by law; a right of the owner to the enjoyment of his own property, as distinguished from an easement supposed to be gained by grant; a right for injury to which an adjoining proprietor is responsible, upon the principle, . This is all that I understand to be meant by those passages of the judgments in Humphries v. Brogden(2), Rowbotham v. Wilson(3), Bonomi v. Backhouse(4), and Backhouse v. Bonomi(5), to which some of the learned Judges who assisted your Lordships have referred.
In these cases, or in some of them, there were buildings upon the land; but no separate question was raised as to the support necessary for the buildings, as distinguished from that necessary for the land; and the doctrine laid down must, in my opinion, be
understood of land without reference to buildings. Support to that which is artificially imposed upon land cannot exist , because the thing supported does not itself so exist; it must in each particular case be acquired by grant, or by some means equivalent in law to grant, in order to make it a burden upon the neighbour's land, which (naturally) would be free from it. This distinction (and, at the same time, its proper limit) was pointed out by Willes , J., in Bonomi v. Backhouse(1),where he said, "The right to support of land and the right to support of buildings stand upon different footings, , the former being primâ facie a right of property analogous to the flow of a natural river, or of air, though there may be cases in which it would be sustained as matter of grant (see Caledonian Railway Company v. Sprot(2)): whilst the latter must be founded upon prescription or grant, express or implied; ." Land which affords support to land is affected by the superincumbent or lateral weight, as by an easement or servitude; the owner is restricted in the use of his own property, in precisely the same way as when he has granted a right of support to buildings. The right, therefore, in my opinion, is properly called an easement, as it was by Lord Campbell in Humphries v. Brogden(3); though when the land is in its natural state the easement is natural and not conventional. The same distinction exists as to rights in respect of running water, the easement of the riparian landowner is natural; that of the mill-owner on the stream, so far as it exceeds that of an ordinary riparian proprietor, is conventional, i.e., it must be established by prescription or grant.
If at the time of the severance of the land from that of the adjoining proprietor it was not in its original state, but had buildings standing on it up to the dividing line, or if it were conveyed expressly with a view to the erection of such buildings, or to any other use of it which might render increased support necessary, there would then be an implied grant of such support as the actual state or the contemplated use of the land would
require, and the artificial would be inseparable from, and (as between the parties to the contract) would be a mere enlargement of, the natural. If a building is divided into floors or "flats," separately owned (an illustration which occurs in many of the authorities), the owner of each upper floor or "flat" is entitled, upon the same principle, to vertical support from the lower part of the building, and to the benefit of such lateral support as may be of right enjoyed by the building itself: Caledonian Railway Company v. Sprot(1).
I think it clear that any such right of support to a building, or part of a building, is an easement; and I agree with Lindley , J., and Bowen , J., that it is both scientifically and practically inaccurate to describe it as one of a merely negative kind. What is support? The force of gravity causes the superincumbent land, or building, to press downward upon what is below it, whether artificial or natural; and it has also a tendency to thrust outwards, laterally, any loose or yielding substance, such as earth or clay, until it meets with adequate resistance. Using the language of the law of easements, I say that, in the case alike of vertical and of lateral support, both to land and to buildings, the dominant tenement imposes upon the servient a positive and a constant burden, the sustenance of which, by the servient tenement, is necessary for the safety and stability of the dominant. It is true that the benefit to the dominant tenement arises, not from its own pressure upon the servient tenement, but from the power of the servient tenement to resist that pressure, and from its actual sustenance of the burden so imposed. But the burden and its sustenance are reciprocal, and inseparable from each other, and it can make no difference whether the dominant tenement is said to impose, or the servient to sustain, the weight.
Lord Campbell , in Humphries v. Brogden(2), referred to the servitude oneris ferendi (applied in the law of Scotland to a house divided into "flats" belonging to different owners), as apt to illustrate the general law of vertical support. The servitude so denominated ( ut vicinus onera vicini sustineat ) in the Roman law was exclusively "urban," that is, relative to buildings, whether in town or country; and the instances of it given in the Digest refer
to rights of support acquired by one proprietor for his building, or part of it, upon walls belonging to an adjoining proprietor: Inst. lib. 2, tit. 3; Dig. lib. 8, tit. 2, sects. 24, 25, 33; also tit. 5, sects. 6, 8. But, in principle, the nature of such a servitude must be the same, whether it is claimed against a building on which another structure may wholly or partly rest, or against land from which lateral or vertical support is necessary for the safety and stability of that structure.
These principles go far, in my opinion, to establish, as a necessary consequence, that such a right of support may be gained by prescription. Some of the learned Judges appear to thick otherwise, and to doubt whether it could be the subject of grant. For that doubt I am unable to perceive any sufficient foundation. Littledale , J., in Moore v. Rawson(1), spoke of the right to light as being properly the subject, not of grant, but of covenant. If he had said (which he did not), that a right to light could not be granted, in the sense of the word "grant" necessary for prescription, I should have doubted the correctness of the opinion, notwithstanding the great learning of that eminent Judge. Although the general access of light from the heavens to the earth is indefinite, the light which enters a building by particular apertures does and must pass over the adjoining land in a course which, though not visibly defined, is really certain, and, in that sense, definite. Why should it be impossible for the owner of the adjoining land to grant a right of unobstructed passage over it for that light in that course? The term "ancient" light seems to me itself to imply that such a right might be acquired by prescription. But, however this may be, the opinion of Littledale , J., is stated by him in words which (unless I misunderstand the true nature of support) do not apply to that easement. "A right of common" (he says) "or a right of way, being a privilege of something positive to be done or used in the soil of another man's land, may be the subject of legal grant; yet light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the non-obstruction and non-interruption of them more properly arises by a covenant, which the law would imply, not to interrupt the free use of the light and
air." The pressure of the dominant tenement, in the case of support, is upon the soil of another man's land, and I can see no material difference between this and "something positive done or used in the soil of another man's land." Willes , J., in Bonomi v. Backhouse(1), when delivering the unanimous judgment of the Court of Exchequer Chamber, said that "the right to support of buildings" not only might, but " must be founded upon prescription or grant, express or implied." Bramwell , B., in Rowbotham v. Wilson(2), said, "I am of opinion that it is competent to the owner of land, on or after the severance of the mines, to grant to the grantee of the mines the right to damage the surface. I cannot see how, if there may be a grant of mines, and of the right to enter, sink shafts, and work, there may not be such a grant as that contended for here" ( i.e ., the right to take away support from the surface). "Nor can I see how, if a grant of the right of unobstructed light and air, or of support of the soil , to an adjoining owner, would be good, a grant of such a right as claimed here would not be. My Brother Hayes said, presumed grants of windows and of support were idle fictions which ought never to have been invented; perhaps so, but the fact that they were shews that the inventors and everybody else supposed that real grants of such a nature would be good." The rule as to prescription is thus stated in Sir argument in Potter v. North(3): "The law allows prescriptions but in supply of the loss of a grant. Ancient grants happen to be lost many times, and it would be hard that no title could be made to things that lie in grant but by shewing of a grant; therefore, upon usage temps dont , & c., the law presumes a grant and a lawful beginning, and allows such usage for a good title; but still it is but in supply of the loss of a grant; and, therefore, for such things as can have no lawful beginning , nor be created at this day ,no prescription is good." Ashhurst , J., in Lord Pelham v. Pickersgill(4),laid it down as the general rule, that "every prescription is good, if by any possibility it can be supposed to have had a legal commencement." Be the theory what it may, its true foundation, in point of fact, is that which the Romans called
" usucapio ," under the conditions defined by Sir Edward Coke ."Both to customs and prescriptions, these two things are incidents inseparable, viz., possession or usage, and time. Possession must have three qualities, it must be long, continual, and peaceable, for it is said, "(1).(The Latin is from Bracton ). All these conditions are capable, in my judgment, of being fulfilled as to the right of support to buildings, and, when they are fulfilled, I am unable to understand why the right should not be held to be prescriptively established.
The policy and purpose of the law on which both prescription and the presumptions which have supplied its place, when length of possession has been less than immemorial, rest, would be defeated, or rendered very insecure, if exceptions to it were admitted on such grounds as that a particular servitude (capable of a lawful origin) is negative rather than positive; or that the inchoate enjoyment of it before it has matured into a right is not an actionable wrong; or that resistance to or interruption of it may not be conveniently practicable I assume, for the present purpose, that a man who places on his own land, where it adjoins that of his neighbour, a weight which increases its pressure upon his neighbour's land, is not thereby guilty of an actionable wrong. If this be so, the reason probably is, that the act is lawfully done upon his own land, and that the owner of the adjoining land suffers no actual or appreciable damage from the increased amount of pressure which it has to bear, except so far as the continuance of that pressure, if uninterrupted, may tend to ripen into a right, and so to enlarge the servitude to which this land was previously subject. But against this he has his own remedy, if he chooses to prevent and interrupt it. That power of resistance by interruption does and must in all such cases exist, otherwise no question like the present could arise. It is true that in
some cases (of which the present is an example) a man acting with a reasonable regard to his own interest would never exercise it for the mere purpose of preventing his neighbour from enlarging or extending such a servitude. But, on the other hand, it would not be reasonably consistent with the policy of the law in favour of possessory titles, that they should depend, in each particular case, upon the greater or less facility or difficulty, convenience or inconvenience, of practically interrupting them. They can always be interrupted (and that without difficulty or inconvenience), when a man wishes, and finds it for his interest, to make such a use of his own land as will have that effect. So long as it does not suit his purpose or his interest to do this, the law which allows a servitude to be established or enlarged by long and open enjoyment, against one whose preponderating interest it has been to be passive during the whole time necessary for its acquisition, seems more reasonable, and more consistent with public convenience and natural equity, than one which would enable him, at any distance of time (whenever his views of his own interest may have undergone a change), to destroy the fruits of his neighbour's diligence, industry, and expenditure.
The law of ancient lights, as it stood before the , was a stronger example of the application of these principles; the easement in that case being more purely negative. I cannot agree with those who think that law too exceptional and anomalous to furnish an analogy, or exemplify a principle, applicable to any other case. The servitude , was as well known to the Roman jurisprudence as the servitude oneris ferendi , or any other; and, if natural and not only technical reasons are to be regarded, it is difficult to conceive anything more needful for the comfort of life and enjoyment of house property than the unobstructed enjoyment of light. There is no actionable wrong done by opening new lights which overlook a neighbour's land; and to obstruct them, by building or erecting hoardings on that land, when there is no other motive for doing so than to prevent them from ripening into an easement, is as seldom likely to be conveniently practicable as the obstruction of the vertical or lateral support of buildings by excavation or otherwise. But these have not been regarded as sufficient reasons why the right to light should not be gained by an enjoyment and user for more than twenty years.
From the view which I take of the nature of the right of support, that it is an easement, not purely negative, capable of being granted, and also capable of being interrupted, it seems to me to follow that it must be within the 2nd section of the (2 & 3 Will. 4, c. 71), unless that section is confined (as Erle, C.J., in Webb v. Bird(1), appears to have thought) to rights of way and rights of water. The opinion to that effect expressed by that eminent Judge, was not necessary for the decision of Webb v. Bird(1), nor can I perceive that any concurrence in it was expressed by Willes , J., and Byles , J., who agreed in the decision. The point then determined (as I understand it) was, that a claim to have free access for all the winds of heaven to the sails of a windmill was too large and indefinite in its nature to be acquired by use or to be capable of interruption, within the meaning of the 2nd section of the Prescription Act . That determination I assume to have been correct. But I do not think it possible, without a degree of violence to the express terms of the Act, for which neither its context nor its policy (as expressed in the preamble) affords any justification, to restrict the operation of the 2nd section to "the two descriptions of easement therein specified, viz., the right to a way or watercourse." The expressed policy of the Act is large and general; it is to prevent claims of prescription from being defeated by shewing a commencement within time of legal memory. Why should not this extend to other easements besides ways and water rights, and lights, which (by the 3rd section) are specially provided for, and exceptionally favoured? In terms the 2nd section extends to every claim which could be "lawfully made at the common law by custom, prescription, or grant, to any way, or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water." The interjection of the words, "or other easement," between ways and watercourses may seem singular, but I cannot think that they ought therefore to be reduced to silence, or arbitrarily limited. If any explanation of the place in which they occur is necessary, it may, I think,
be found in the separate mention, which follows, of "land" and "water." Reddendo singula singulis , the words (as it seems to me) may be read thus, "Any way or other easement to be enjoyed or derived upon, over, or from any land, or any watercourse, or use of water to be enjoyed or derived upon, over, or from any water." So reading them, they would include (unless there is something else in the statute to exclude it, and I find nothing) the easement of support.
I am not insensible to the probability that there may be some error in an opinion which seems to be opposed to that of all the learned Judges in both the Courts below, and of most of those by whom your Lordships have been assisted on this occasion. They did not all advert to the Prescription Act , but, of those who did, Lindley , J., was, I think, the only one who expressed any doubt. The opinions of those learned Judges may possibly have been, in some degree, influenced by what was said by so distinguished a Judge as Erle , C.J., in the case of Webb v. Bird(1), which was cited for this purpose by Lush , J. To those who considered that the right of support was not an easement, or that it was of so purely negative a character as to be incapable of being granted, or of being interrupted, within the meaning of the statute, the conclusion that the statute did not apply to it would naturally follow. I have already stated my reasons for not assenting to those premises. The point may probably not now require decision; because the same practical conclusion may be reached by your Lordships (as it has been by all the learned Judges, except the late Lord Chief Justice of England , Mellor , J., and Brett , L.J.), by a different road. But, having regard to its possible importance in other cases, I have not thought it right to withhold the expression of the opinion which, after much consideration, I have myself formed upon it.
Assuming the statute to apply, what would be its effect? The late Lord Chief Justice of England thought it would be nugatory. "It was passed" (his Lordship said) "with the view of putting an end to the scandal on the administration of justice which arose from forcing the consciences of juries," to find that there had been a lost grant, when "the presumption was known to be a
mere fiction(1)." But he nevertheless concluded(2) that, except in the case of light, "as regards the effect of twenty years user or enjoyment in the matter of easements by presumed grant, the law stands exactly as it did before the passing of the Act," a conclusion extending as much to those rights of way, & c., which are expressly mentioned in the 2nd section, as to "other easements."
It is undoubtedly true that, under the 2nd section, there is an important difference between a forty years' and a twenty years' user. Forty years user has the same effect which (under the 3rd section) twenty years' user has as to light; it makes the right absolute and indefeasible, unless it is shewn to have been enjoyed by consent or agreement in writing. But twenty years' user, under the 2nd section, may be defeated "in any other way by which" it was previously ( i.e ., before the 1st of August, 1832) "liable to be defeated," except that it can no longer be defeated or destroyed "by shewing only that it was first enjoyed at any time prior to such period of twenty years." The effect of this, as I understand it, is to apply the law of prescription, properly so called, to an easement enjoyed as of right for twenty years, subject to all defences to which a claim by prescription would previously have been open, except that of shewing a commencement within time of legal memory. To allege that there was no evidence from which a grant could be presumed, or that there was evidence from which it ought to be inferred that there was, in fact, no grant, would not (as I understand the law) have been, before the 1st of August, 1832, a competent mode of defeating or destroying any claim to an easement by prescription ,and no jury would have been directed to find a grant in any such case, when there was no proof of a commencement within time of legal memory. The section, therefore (assuming it to apply), would in the present case be sufficient to establish a title by prescription to the right claimed by the Plaintiffs, unless it had been enjoyed vi , or clam , or precario . Of vi ,or precario , there is here no question.
Supposing, however, that the 2nd section of the ought not to be held to apply to the easement of support, the
same result would practically be reached by the doctrine, that a grant, or some lawful title equivalent to it, ought to be presumed after twenty years' user. As to this, I think it unnecessary to say more than that I agree with the view of the authorities taken by Lush , J., by the majority of the Judges in the Court of Appeal, and by all the learned Judges who attended this House (unless Bowen , J., who preferred to rely upon the equitable doctrine of acquiescence, is an exception) in their answer to the first two questions proposed to them by your Lordships.
Upon the other three questions proposed to the learned Judges, which involve the doctrine of clam, as applied to the easement of support, there has been much difference of opinion; four of the learned Judges being in the Plaintiff's favour, and the other three thinking that the jury were not properly directed on that point.
The inquiry on this part of the case is, as to the nature and extent of the knowlege or means of knowledge which a man ought to be shewn to possess, against whom a right of support for another man's building is claimed. He cannot resist or interrupt that of which he is wholly ignorant. But there are some things of which all men ought to be presumed to have knowledge, and among them (I think) is the fact, that, according to the laws of nature, a building cannot stand without vertical or (ordinarily) without lateral support. When a new building is openly erected on one side of the dividing line between two properties, its general nature and character, its exterior and much of its interior structure, must be visible and ascertainable by the adjoining proprietor during the course of its erection. When (as in the present case) a private dwelling-house is pulled down, and a building of an entirely different character, such as a coach or carriage factory, with a large and massive brick pillar and chimney-stack, is erected instead of it, the adjoining proprietor must have imputed to him knowledge that a new and enlarged easement of support (whatever maybe its extent) is going to be acquired against him, unless he interrupts or prevents it. The case is, in my opinion, substantially the same as if a new factory had been erected, where no building stood before. Having this knowledge, it is, in my judgment, by no means necessary that he should have particular information as to those details of the internal structure of the building on which the amount or incidence of its weight may more or less depend. If he thought it material he might inquire into those particulars, and then if information were improperly withheld from him, or if he received false or misleading information, or if anything could be shewn to have been done secretly or surreptitiously, in order to keep material facts from his knowledge, the case would be different. But here there was no evidence from which a jury could have been entitled to infer any of these things. Everything was honestly and (as far as it could be) openly done, without any deception or concealment. The interior construction of the building was, indeed, such as to require lateral support, beyond what might have been necessary if it had been otherwise constructed. But this must always be liable to happen, whenever a building has to be adapted to a particular use. The knowledge that it may or may not happen is in my opinion enough, if the adjoining proprietor makes no inquiry. I think, therefore, that in this case the kind and degree of knowledge which the adjoining proprietor must necessarily have had was sufficient; that nothing was done clam, and that the evidence did not raise any question on this point which ought to have been submitted to the jury.
My opinion, therefore, upon the whole case is in favour of the Respondents, the Plaintiffs in the action, and against the Appellants; and the motion which I have to make to your Lordships is, that the judgment of the Court below be affirmed, and the appeal dismissed with costs. The effect of this will be, that judgment will stand for the Plaintiffs, for £1943, the amount of damages assessed by the Special Referee; the Defendants not having elected to take a new trial within the time allowed them by the order of the Lords Justices; and which option was more than, according to the view which I take of this case, they were entitled to.
My Lords, in dealing with the questions of law to which the present case gives rise, it is material to bear in mind that the exact proposition which the Appellants call upon your Lordships to repudiate, or affirm, is to be found in the ruling at the trial given by the learned Judge. It is in these words: "The authorities oblige me to hold, that when a building has stood for twenty years it has acquired a right to the support of the adjacent land, and I do not think that it all depends upon whether the opposite or adjacent neigbour had notice, or not, of what was done, or what weight was put upon it, nor does it rest on the fact of there being an implied grant. I think it has become absolute law, that when a building has stood for twenty years, supported by the adjacent soil, it has acquired a right to the support of the soil; and no one has a right to take all that soil without putting an equivalent to sustain the building. That is the ruling which I must lay down here, because that is upheld by many authorities"(1). Your Lordships have now to say whether this view of the authorities is a correct one; and, with some reluctance, I feel constrained to say that in my opinion it is so. I say with some reluctance, not because I think that the support which the Plaintiff claims for his house is unreasonable, or inequitable, but because the circumstances under which the claim is held to arise, are, so far as I am able to discover, incapable of giving rise to it in accordance with any known principle of law.
It must be borne in mind both what the claim is, and what it is not. It is not a claim asserted for the support of a house by the adjacent soil as soon as that house is built; but a claim that when the house has stood "for twenty years supported by the adjacent soil it has by absolute law acquired a right to the support of the soil;" and this not by reason of any implied grant, and quite independently of whether "the opposite or adjacent neighbour had notice or not of what was done or what weight was put upon" the ground to which the lateral support was required.
It is this sudden starting into existence of a right which did not exist the day before the twenty years expired, without reference to any presumption of acquiescence by the neighbour (to which the lapse of that period of time without interruption on his part might naturally give rise) which I find it impossible to reconcile with legal principles. I find myself therefore in entire accord with the opinion which Fry , J., has offered to the House; and he
has so fully and ably illustrated his views on the subject, which are also mine, that I have little to add.
If this matter were res integra , I think it would not be inconsistent with legal principles to hold, that where an owner of land has used his land for an ordinary and reasonable purpose, such as placing a house upon it, the owner of the adjacent soil could not be allowed so to deal with his own soil by excavation as to bring his neighbour's house to the ground. It would be, I think, no unreasonable application of the principle "" to hold, that the owner of the adjacent soil, if desirous of excavating it, should take reasonable precautions by way of shoring, or otherwise, to prevent the excavation from disastrously affecting his neighbour. A burden would no doubt be thus cast on one man by the act of another done without his consent. But the advantages of such a rule would be reciprocal, and regard being had to the practicability of shoring up during excavation, the restriction thus placed on excavation would not seriously impair the rights of ownership.
But the matter is not res integra . It has been the subject of legal decisions, and those decisions leave it beyond doubt that such is not the law of England . On the contrary it is the law, I believe I may say without question, that at any time within twenty years after the house is built the owner of the adjacent soil may with perfect legality dig that soil away, and allow his neighbour's house, if supported by it, to fall in ruins to the ground. This being so, and these being his legal rights (the rights incident to his ownership), it seems to me that these rights must remain to him, or those who come after him, for all time, unless he, or they, have done something by which these rights have been divested, restricted, or impaired. I find it impossible to conceive, within the application of any legal principles, that mere lapse of time can divest him or them of the rights they once had. Legal rights do not perish by lapse of time, but rather grow confirmed. What I mean to express is this, that the right to excavate the neighbouring soil not being impaired or restricted by the house being built, anything which afterwards impairs or restricts it must proceed from those who possess that right, and cannot come about, all things remaining unchanged, by the mere efflux of time.
In all the cases in which lapse of time is held to stand in the way of the assertion of rights attaching to the ownership of property, it is not the lapse of time itself which so operates but the inferences which are reasonably drawn from the continuous existence of a given state of things during that period of time. These inferences are inferences of acquiescence or consent, and they are drawn from the fact that the person against whom the right is claimed has for a length of time failed to interrupt or prevent an enjoyment by his neighbour which he might have interrupted had he so pleased. In Chasemore v. Richards(1) the language held puts this beyond doubt. Whitman , J., said that no presumption could be raised from non-interruption unless the person against whom the right is claimed might have prevented it, and Lord Wensleydale , in addressing your Lordships, distinctly relied upon the fact that the Defendant was not able to prevent the enjoyment which after a lapse of years had been claimed as a right against him. In the more modern case of Sturges v. Bridgeman(2) it was distinctly determined that no easement could be created by lapse of time unless the Defendant might have interrupted it. " Qui non prohibet quod prohibere potest assentire videtur " is the legal maxim upon which, in my opinion, all the cases of easements of whatever kind acquired by length of time substantially rest.
The question therefore in each particular case must be, could the Defendant have interrupted the enjoyment in question? Now if these words are taken literally all cases are alike, and the question is no question at all. For an action for the disturbance of the enjoyment claimed involves the possibility of its being disturbed, and the fact that the Defendant has at last interrupted the Plaintiff's enjoyment (say of support to his house) which constitutes his cause of action, is a very simple proof, except under special circumstances, that the enjoyment was capable of interruption at an earlier period. The Defendant's power of interruption therefore, in my opinion, means something very different from the mere physical possibility of interrupting. It involves knowledge that the necessity for support existed, and the possibility of withdrawing that support without the expenditure of so much labour
or money, or the incurring of so much loss or damage, as a man could not reasonably be expected to incur.
There is direct authority for this proposition to be found in the case of Webb v. Bird(1) in which Willes , J., states the principle which is to be extracted from the previous cases, in the following language:- "In general a man cannot establish a right by lapse of time and acquiescence against his neighbour, unless he shews that the party against whom the right is acquired might have brought an action, or done some act, to put a stop to the claim, without an unreasonable waste of labour and expense ." Nor is any other view of this matter, as it seems to me, consistent with the terms in which a right to be gained by prescription or lapse of time is defined. A claim by prescription to a right of this character is said only to arise when a right, or benefit, enjoyed over a length of time has been enjoyed " nec vi ," " nec clam ." What is the meaning and bearing of these qualifications? or what place could they have in such a definition, unless they point to the fact that the benefit claimed after a lapse of years as a right is one, the existence of which the person against whom it is claimed had the means of knowing, and the enjoyment of which he had the power to stop? And of what importance are these matters, except that they lay the foundation, where the right or benefit has not been interfered with, for presuming that he who might have interfered with them, has granted or consented that they should be undisturbed in future?
Continuous enjoyment without interruption is surely insisted upon as the basis of the right for some reason, and for what reason except that it is the evidence of assent? The physical power to interrupt, if accompanied, as I have above suggested, by a knowledge that the enjoyment of support existed, and by the means of exercising that power of interruption without extravagant and unreasonable loss or expense, may well give ground for an implied assent if it be not exercised for so long a period as twenty years. But if unaccompanied by these qualifications, the fact of non-interruption appears to lead to no conclusion whatever, and the restrictions insisted upon, that the enjoyment must be "open"
and not sustained by "force," cease to have an intelligent place in the definition. In the present case it is obvious that a power to interrupt is one which, although it has existed, and been physically possible ever since the Plaintiff's house was built, could only be exercised by measures which no man in his senses would take. It would indeed be an unreasonable state of the law which should enforce upon the Defendant, if he wished to retain his original right to excavate his own soil at such time as his interests might require him to do so, that he should pull his own house down, and drag his neighbour's to the ground with it at a time when his interest did not require it, and when it could be nothing but a grievous loss and injury to all parties concerned.
For these reasons I am unable to support the conclusion that a right such as that here in question could be gained by the Plaintiff by anything in the shape of prescription or lost grant; but if I am mistaken in this, I think it is clear that in the present case the question should have been submitted to the jury whether the enjoyment of the support to the house was an "open" enjoyment at all. The house was built in an exceptional manner, and that, which seen from the outside, would appear to be nothing more than an ordinary chimney stack carrying nothing but its own weight, was in truth a pier of brickwork, intended to carry, and in fact carrying, one end of an iron girder, upon which girder the whole upper floor of the house rested. If the Plaintiff's right, therefore, was to be established by prescription, I think it inevitable that the matter should have been dealt with by the learned Judge in the manner clearly described by Lindley , J., in his answer to your Lordships' fifth question. And I daresay it would have been so dealt with, if the learned Judge had not considered the Plaintiff's right to stand on a different ground altogether, and asserted it to be an absolute right acquired by twenty years' enjoyment, quite independent of grant, acquiescence, or consent. In so doing he relied, he said, upon the existing authorities. I will not recapitulate them or criticise them individually, as they have been carefully reviewed by others. They constitute the existing law on the subject; and I think the learned Judge has drawn what is upon the whole the correct inference from them, though they are by no means uniform, and although, for the reasons I have given, and for those more fully expanded in the opinion of Fry , J., I am unable to find a satisfactory legal ground upon which these authorities may be justified. I feel the less difficulty in acquiescing in them, inasmuch as they affirm a right to exist after twenty years, which in my opinion should have been held to exist as soon as the Plaintiff's house was built. The learned Judge's direction at the trial was therefore, in my opinion, correct, and this appeal should be dismissed with costs; and if I have ventured to question the legal principles upon which the authorities which guided him are founded, I have only done so lest this case should be thought an authority for the establishment of other rights more or less similar to the right here in question.
So far as my opinion goes this right, to the lateral support of the soil for an ancient house, stands upon the positive authority of a series of cases and a long acceptance in the Courts of Law, and the ratification of it by your Lordships ought not to be considered as the adoption of principles which might have a wide application in analogous cases.
My Lords, the first of the defences raised by the pleadings is a denial that the Plaintiffs were entitled to have their buildings supported by the land adjacent thereto. It is on this defence that the most difficult questions arise, and I shall consider it first.
It is, I think, conclusively settled by the decision in this House in Backhouse v. Bonomi(1) that the owner of land has a right to support from the adjoining soil; not a right to have the adjoining soil remain in its natural state (which right, if it existed, would be infringed as soon as any excavation was made in it); but a right to have the benefit of support, which is infringed as soon as, and not till, damage is sustained in consequence of the withdrawal of that support.
This right is, I think, more properly described as a right of property, which the owner of the adjoining land is bound to respect, than as an easement, or a servitude ne facias , putting a restriction on the mode in which the neighbour is to use his land;
but whether it is to be called by one name or the other is, I think, more a question as to words than as to things. And this is a right which, in the case of land, is given as of common right; it is not necessary either in pleading to allege, or in evidence to prove, any special origin for it; the burthen, both in pleading and in proof, is on those who deny its existence in the particular case. No doubt the right is suspended, or rather perhaps cannot be infringed, whilst the adjoining properties are in the hands of the same owner. He may dig pits on his own land, and suffer his own adjoining land to fall into those pits just as he pleases. When he severs the ownership and conveys a part of the land to another, he gives the person to whom it is conveyed (unless the contrary is expressed) not a right to complain of what has been already done, but a right to have the support in future. It is, I think, now settled that the conveyance may be on such terms as to prevent any such right arising (see Rowbotham v. Wilson(1); Smith v. Darby(2); Eadon v. Jeffcock(3); Aspden v. Seddon(4)). But the burthen both of pleading and proving such a case lies on those setting it up. And I think that the decision of this House in Backhouse v. Bonomi(5) also conclusively settles this, that though the right of support to a building is not of common right and must be acquired, yet, when it is acquired, the right of the owner of the building to support for it, is precisely the same as that of the owner of land to support for it. Both Lord Cranworth and Lord Wensleydale say that this right also is more properly to be called a right of property to be respected by the owner of the adjoining land than a negative easement or servitude ne facias. Lord Wensleydale could not mean to say that the right of support to a house was of common right, and so overrule several authorities, including Gayford v. Nicholls(6), where he himself had delivered judgment.
In the case now before your Lordships, nothing was proved which could have given rise to this right unless it arose from enjoyment in the manner and subject to the conditions and for the time required by law to give a title by prescription. And
inasmuch as it was clearly proved that, though there had been more ancient buildings on the spot, they were removed, and buildings of a different structure and requiring a different degree of support were erected in their place only twenty-seven years before the excavations complained of, it seems to me clear that the buildings are not ancient buildings in the sense that they or similar buildings, for which in the course of repair they were substituted, had stood there from time beyond memory. The Plaintiffs must (unless the construction of 2 & 3 Will. 4, c. 71, is such as to embrace such a case as this) rely on the comparatively modern doctrine, by which enjoyment of a right appurtenant to land for twenty years or more, under such circumstances as are required by law, is given the effect of prescription, though it is proved that the enjoyment began within living memory.
I do not understand the late Lord Chief Justice Cockburn to doubt that such a right as that now in question might be acquired, according to English law, where the building had stood from time immemorial, by enjoyment open and peaceable from time immemorial. It was questioned on the argument at the Bar of this House, whether a right of support for a building could be acquired by any length of enjoyment, even from time immemorial, and I shall consider that later. But the Lord Chief Justice, I think, denied that this right could be acquired by enjoyment for a less time than time immemorial. He said that such enjoyment might give rise to a presumption that there was originally a grant, or at least an assent in point of fact to the enjoyment, but said that when it was proved, or what comes to the same thing, admitted, that the assent of the Defendants' predecessors was not asked for, or obtained by grant or in any other way, the presumption was at an end. This is expressed(1) in terms confined to this particular right, but I think his position is general, and applies to every easement, unless it is claimed under Lord Tenterden's Act . This requires examination.
The English Common Law is stated by Lord Coke (2). He says, to make prescription, two things are incidents inseparable, possession or usage, and time. Possession must be long, continual, and peaceable. As to "long," Lord Coke says: "It is the time
given by law, which in England is the time whereof there is no memory of man to the contrary." But though living memory might not be to the contrary, yet if written evidence shewed that the possession had a beginning, it was defeated. By what Cockburn ,C.J., seems to think a judicial usurpation of legislative power, the time of legal memory was fixed to be the same as the limitation of real actions by the Statute of Westminster (A.D. 1275), viz., the time of Richard , I., A.D. 1189. This, when first introduced, gave a prescription of about eighty-six years, but being a fixed date it became longer and longer, and already when Littleton wrote, in the reign of Edward , IV., he observes on the inconvenience felt, because the time of limitation of a writ of right is of so long time past.
This inconvenience must have been particularly felt with regard to any rights attached to buildings. For though a few buildings which existed in 1189 still exist, and there are some old cities and towns (not of very great extent) which then existed, and in which it is possible that the ancient buildings have been from time to time repaired without altering their structure, yet far the greater part of the buildings in England stand on land which can be shewn to have been first built upon at a much later date.
In Bedle v. Beard, A.D. 1606(1), it was held that, though it was proved that there was a time within legal memory when the right claimed had not existed, and consequently the right could not have its origin in prescription, long possession was a sufficient ground for presuming what was necessary to make that possession lawful; and consequently, in that case, where there had been possession for 303 years, for presuming a grant from the Crown, though none was shewn. "This," says Lord Coke , "was resolved by Lord Ellesmere , with the principal Judges, and on consideration of precedents." So that the doctrine was not then introduced for the first time. But the length of time necessary to give rise to such a prescription was left indefinite, and though I think no one, in that case, could have really believed that there actually had been a grant from the Crown which was lost, that is not said, and it may have been thought that long user was evidence by which the fact might be proved, but that it should not be found unless
believed. The modern doctrine that a jury ought to be directed that if they believed that there had been what was equivalent to adverse possession as of right for more than twenty years, they ought to presume that it originated lawfully, that is, in most cases, by a grant, must certainly have been introduced after the passing of the Statute of Limitations , 21 Jac. 1, c. 16 (A.D. 1623), and as the earliest reported decision is that of Lewis v. Price in 1761, referred to in Serjeant Williams ' note to Yard v. Ford(1), the doctrine is probably not much more than a century old. I quite agree with what is said by the late Chief Justice Cockburn (2),that where the evidence proved an adverse enjoyment as of right for twenty years, or little more, and nothing else, "no one had the faintest belief that any grant had ever existed, and the presumption was known to be a mere fiction." He thinks that thus to shorten the period of prescription without the authority of the Legislature was a great judicial usurpation. Perhaps it was. The same thing may be said of all legal fictions, and was often said (with, I think, more reason) of recoveries. But I take it that when a long series of cases have settled the law, it would produce intolerable confusion if it were to be reversed because the mode in which it was introduced was not approved of: even where it was originally a blunder, and inconvenient, communis error facit jus .But to refuse to administer a long-established law because it was based on a fiction of law, admitted to be for a purpose and producing a result very beneficial, is, as it seems to me, at least as great a usurpation of what is properly the function of the Legislature as it was at first to introduce that fiction.
It is difficult to reconcile all the dicta and decisions on the subject. There is language used in Darwin v. Upton, reported by Serjeant Williams in his note to Yard v. Ford(3), as to the difference between an absolute bar and a presumptive bar which I have never been able to understand. I quite agree that where the evidence is such as to leave it a question whether the enjoyment has been such - open, peaceable, and continual - as to raise a presumption of the right, the jury must be asked to find as a fact whether the enjoyment was of that kind, but the late Chief Justice seems(4) to
understand Darwin v. Upton(1) as amounting to this, that the jury should be told that if the enjoyment has been such as to raise a presumption of a right they may find a grant whether they believe in its existence or not; but that, if they choose to be scrupulous, they need not so find. I cannot believe that the Judges meant that, and if they did, I think the subsequent cases are inconsistent with that ruling. I would more particularly rely on what is said by Bayley, J., in Cross v. Lewis(2). The Judges never altered the form of pleading, and it was still necessary for a Defendant setting up a right as a defence, to plead it with particularity: see Hendy v. Stephenson(3). In Campbell v. Wilson(4)the Defendant pleaded, first, a way by prescription, which was traversed; and, secondly, that Bryan Grey was seised in fee of the locus in quo, and that Joseph Wilson (under whom the Defendant made title by devise) was at the same time seised in fee of an adjoining moss dale, and that by deed, lost by time and accident, Bryan Grey granted a right of way over the locus in quo to Joseph Wilson and his heirs. The replication traversed the grant. At the trial in 1803, before Chambre , J., it appeared that in 1778, by an award made under an Inclosure Act, all ways not set out in the award were extinguished. And this way was not set out in the award. This put an end to the plea of prescription, and it would also have put an end to the second plea, unless the alleged grant by Bryan Grey was made subsequent to the award, that is, within twenty-five years next before the trial, and, of course, within less than that time before the plea was pleaded, in which it was alleged that the deed was lost by time and accident. But evidence was given that there had been, for more than twenty years, an adverse enjoyment of the right of way. Now, if the issue joined was to be understood in its literal and natural sense, it could hardly have been suggested that this was evidence to justify the Judge in leaving it to the jury whether, in fact, in the short interval between the making of the award and the commencement of the twenty years' enjoyment, not more than two or at most four years, there actually had been a grant since lost. But so to construe the issue would have made the question of
whether there was a right, to depend on the accident of whether the right was set up by a Plaintiff complaining of an obstruction to it, or a Defendant justifying under it. Chambre , J., who was a very learned pleader, does not seem to have had the least doubt of the meaning of the issue. He never said one word to the jury as to the reality of the grant, but left it to them to presume it, if satisfied that the enjoyment was adverse, and had continued twenty years before the action. And this direction was approved of by Lord Ellenborough and the whole Court of King's Bench, the only question on which they seem to have had any difficulty being as to whether there was a proper direction given as to the nature of the enjoyment which would give rise to the presumption that the Defendant acted by right. And in Penwarden v. Ching(1),where issue was taken on a plea justifying a trespass in defence of an ancient window, and on the trial in 1829 it was proved before Tindal , C.J., that the window was first erected in 1807, that learned Judge said that "the question is not whether the window is what is strictly called ancient, but whether it is such as the law, in indulgence to rights, has in modern times so called, and to which the Defendant has a right, for this is the substance of the plea." The verdict was for the Plaintiff, so that this ruling could not be reviewed, but it was the ruling of a Judge who was a very learned pleader. In both those cases, and in many more, if the question had been whether there really in fact had been a grant or really in fact the window was ancient, there could have been no possible question. It was, no doubt, desirable that such artificial doctrines should be dispensed with. Lord Tenterden's Act (2 & 3 Will. 4, c. 71), so far as it went, made that a direct bar which was before only a bar by the intervention of a jury and the use of an artificial fiction of law. But it did not abolish the old doctrine; if it had, old rights even from time immemorial would have been put an end to by unity of occupation for the space of a year. But this was not done: see Aynsley v. Glover(2). I think the law, as far as regards this subject, is the same as it was before that Act was passed. Neither can I agree with what seems thrown out by Lush , J., rather as a makeweight than as a substantial ground of decision, that the more recent Limitation Act
(3 & 4 Will. 4, c. 27) which put an end to the doctrine of adverse possession, has made any difference in the law. This view of the matter renders it unnecessary to decide anything as to the construction of Lord Tenterden's Act (2 & 3 Will. 4, c. 71), and I wish to say nothing that may prejudice the decision of that question if hereafter it becomes material.
I scarcely think that, if this had been the only point argued at your Lordships' bar on the first occasion, it would have been thought of sufficient difficulty to ask the opinions of the learned Judges. But it is satisfactory to find that they all agree that a building, which has de facto enjoyed (under the circumstances and conditions required by the law of prescription) support for more than twenty years, has the same right as an ancient house would have had.
I am glad that the recent alterations in the law have obviated the necessity of putting such very artificial constructions on issues as I have mentioned. But I am not able to agree with Bowen , J., in thinking that the alterations in the modes of procedure and the fusion of law and equity have made any alteration in the substance of the law. I quite agree with him in thinking that circumstances might, and often did, give rise to an equity to protect a house which would not have given rise to a legal claim to maintain an action at law. But those circumstances must always have existed in fact, and generally there must have been notice of them. I cannot think the alterations in procedure have altered the law.
On the first argument at the Bar of this House in November, 1879, when the Lords present were the then Lord Chancellor (Earl Cairns ), Lord Penzance , and myself, a very able argument was addressed to this House by the then Attorney-General(1)and the now Solicitor-General(2), and at the close of it the Lord Chancellor summarized the argument (I took a note of it at the time), and asked if this was a correct statement of their proposition; - "In order to gain for the owner of land, by enjoyment, a title to some advantage from or upon his neighbour's adjacent close, greater than would naturally belong to him, the
advantage must be one the enjoyment of which is or ought to be known to the neighbour, and could, without destruction or serious injury to his own close, be interrupted by him." And this was accepted by the Attorney-General as truly representing the argument. As 2 & 3 Wm. 4, c. 71, was couched in terms which, as it has been held, prevented its applying to this case, it might be necessary in considering this proposition, to decide questions of great importance, which had never yet been finally decided; and, therefore, it was deemed advisable to have the assistance of the learned Judges, and a further argument was ordered.
I do not think anything was said at the second argument that was not involved in the summary of the first argument which I have above quoted. It was admitted that if the proposition was correct, no lapse of time, not even from time immemorial, could give a right of support to a building, such as to oblige the owners of adjoining land to respect it; and that the same would have been before 2 & 3 Will. 4, c. 71, and still was in cases not within its provisions, the law as to the acquisition by enjoyment of the right to require the neighbours to respect the access of light and air to a window, unless it made a difference that the enjoyment in this latter case could be easily interrupted. And reference was made to cases which were said to be analogous, such as that of keeping land undrained, so as to act as a reservoir for springs: Chasemore v. Richards(1); or that of claiming to have uninterrupted the access for the wind to a windmill: Webb v. Bird(2);and it was said that the principle on which those cases were decided was one which shewed that there was no right of support acquired by the common law prescription for a building, though it had stood for time immemorial, and if that was so, there could be none by the prescription for a shorter period created by the modern decisions; for I agree with Bramwell , L.J., where, in Bryant v. Lefever(3), he says that what he calls the expedient, introduced by these decisions, is ancillary to the doctrine of prescription at common law, and applicable in cases where something prevents the operation of the common law prescription from
time immemorial, and is therefore only applicable where the right claimed is such as, if immemorial, might have been the subject of prescription.
My Lords, during the very considerable interval that elapsed between the first argument in November, 1879, and the time when the opinions of the learned Judges were delivered, the 15th of March, 1881, I have at intervals bestowed consideration on this proposition, and though I refrained from finally coming to a decision till I had the advantage of considering their opinions, I was strongly impressed with the conviction that such a right as is here claimed, was, according to the established law of England ,one which might be acquired by prescription. And I find that all the Judges agree in that result, though not entirely for the same reasons, and I am not sure that any of them would have quite assented to the train of reasoning which has led me to that same result. On a minor point - whether there should be a new trial because the Judge at the trial left no question to the jury when, as it was said, there was or might have been evidence produced which would raise a question of fact which might have been a defence, - the learned Judges are divided in opinion; Lindley , Lopes , and Bowen , JJ., agreeing with the majority of the Court of Appeal that there should be a new trial; Pollock , B., and Field , Manisty , and Fry , JJ., thinking that there should not. It is not necessary to choose between the divers reasons which led them to the same result on the first point. It may be necessary to do so on this minor point, where their reasons led to different results. I have come to the conclusion that there should not be a new trial. I will state the reasoning which has led me to these conclusions.
My Lords, I cannot agree that the only principle on which enjoyment could give the owner of property a prescriptive right over a neighbour's land exceeding what would, of common right, belong to the owner of that property, was acquiescence on the part of the neighbour. Nor even that it is the chief principle. In general such enlarged rights are of such a nature that those over whose property they are enjoyed could in the beginning have stopped them; and a failure to stop them is evidence of acquiescence, and may afford a ground for finding that there was an actual assent, but that is, in many if not in all cases, a fiction; there is seldom a real assent. But no doubt a failure to interrupt, when there is power to do so, may well be called laches, and it seems far less hard to say that for the public good and for the quieting of titles enjoyment for a prescribed time shall bar the true owner when the true owner has been guilty of laches, than to say that for the public good the true owner shall lose his rights, if he has not exercised them during the prescribed period, whether there has been laches or not; but there is not much hardship Presumably such rights if not exercised are not of much value, and though sometimes they are "." This ground of acquiescence or laches is often spoken of as if it were the only ground on which prescription was or could be founded. But I think the weight of authority, both in this country and in other systems of jurisprudence, shews that the principle on which prescription is founded is more extensive.
Prescription is not one of those laws which are derived from natural justice. Lord Stair , in his Institutions, treating of the law of Scotland , in the old customs of which country he tells us prescription had no place (book 2, tit. 12, s. 9), says, I think truly, "Prescription, although it be by positive law, founded upon utility more than upon equity, the introduction whereof the Romans ascribed to themselves, yet hath it been since received by most nations, but not so as to be counted amongst the laws of nations, because it is not the same, but different in diverse nations as to the matter, manner, and time of it."
It was called by the old Roman lawyers Usucapio , which is defined (Dig. lib. 41, tit. 3, De usurpationibus et usucapionibus , art. 3,) to be "." And in the same book and title, art. 1, the reason is given, - "." This is precisely the object with which modern Statutes of Limitations are established, and it would be baffled if there was to be a further inquiry as to whether there had been acquiescence on the part of the true owner. It is both fair and expedient that there should be provisions to enlarge the time when the true owners are under disabilities or for any other reason are not to be considered guilty of laches in not using their right within the specified period, and such provisions there were in the Roman law, and commonly are in modern Statutes of Limitations, but I take it that these are positive laws, founded on expedience, and varying in different countries and at different times. The minor question whether there should be a new trial, in my mind, depends on the question what positive laws have been adopted by the English Courts. To return to the Roman law, Usucapio , it will be noticed, was confined to the dominium nearly equivalent to the modern phrase of the legal estate. It was enunciated in the laws of the Twelve Tables, in terms brief, to the extent of being obscure, and simple to the extent of being rude - "." This for centuries, down to the time of Justinian , continued to be the law, as far as regarded the dominium ,within the old territory of the republic, but side by side with it, the Prætors introduced, by their edicts, a jus prætorium, nearly equivalent to the modern phrase of equity, which practically superseded the old law, and in the provinces was the only law. No one who has ever looked at the Digest will complain of this Prætorian law as brief; nor will any one who has read any portion of it fail to admire the skill with which legal principles are worked out. Some of the edicts of the Prætors are so obviously just and expedient, and are so tersely expressed, that they have been generally adopted, and are quoted as legal maxims by those who often do not know whence they came. Two edicts were restitutory:- "" (Dig., lib. 43, tit. 24, art. 1.) This relieved the true owner from the usucapio which transferred the dominium in consequence of a possession of two years if the possession was not peaceable, or not open.
"" (Dig., lib. 43, tit. 26, art. 2). This relieved him from the effect of a possession of two years if it was not adverse, or if it was fraudulent. By a prohibitory edict, " Uti possidetis " (Dig. lib. 43, tit. 17), the Prætor forbad any one to disturb, by force, any possession which had been obtained " nec vi, nec clam, nec precario ." And on the
basis principally, but not exclusively, of those three edicts, the Prætors established what was called the " præscriptio longi temporis ." I will read what Pothier says in his treatise " 3." I quote from the eighth volume of Pothier's works by M. Dupin , p. 390:- " res mancipi pendant le temps de dix ans inter præsentes, et de vingt ans inter absentes, ." Thus the Prætors, whilst professing to leave the Law of the Tables in force, at least within the old territory of the Republic, practically deprived it of all force. Justinian by two laws (Codex, lib. 7, tit. 25), "," changed all this. The two laws are couched in terms that shew that those who framed them had very little respect for antiquity, and were intolerant of legal fictions. Justinian , says Pothier , by these enactments has changed the prescription of ten and twenty years into a true " usucapio ," for they have caused the " dominium " to pass to the possessor of the heritage, or the incorporeal right of which he has had during that time a possession or quasi-possession peaceable and not interrupted.
The name of prescription has, however, survived the thing. And in the numerous provinces into which France was before the Revolution divided, many of which were governed by their own customs, the laws of prescription varied. Domat in his treatise on the Civil Law (I quote from the translation by Doctor Strahan ), book 3, title 7, s. 4, says: "It is not necessary to consider the motives of these different dispositions of the Roman law, nor the reasons why they are not observed in many of the customs. Every usage hath its views, and considers in the opposite usages their inconveniences. And it sufficeth to remark here what is common to all these different dispositions of the Roman law, and of the customs as to what concerns the times of prescriptions. Which consists in two views; one, to leave to the owners of things, and to those who pretend to any rights, a certain time to recover them; and the other to give peace and quiet to those whom others would disturb in their possessions or in their rights after the said time is expired." Those who framed the had to make one law for all France. To facilitate their task they divided servitudes into classes, those that were continuous and those that were discontinuous, and those that were apparent and non-apparent ( Code Civil , Arts. 688, 689). Those divisions, and the definitions, were, as far I can discover, perfectly new; for though the difference between the things must always have existed, I cannot find any trace of the distinction having been taken in the old French law, and it certainly is not to be found in any English law authority before Gale on Easements in 1839. On this division their legislation was founded. The first Projet of the Code allowed continuous servitudes, whether apparent or not, and discontinuous servitudes, if apparent, to be gained by title or by possession for thirty years. The Code Civil as it was finally adopted by Article 690, allows servitudes, if continuous and apparent, to be acquired by title or by possession for thirty years, and by Article 691 enacts that continuous servitudes not apparent and servitudes, if discontinuous, whether apparent or not, can only in future be established by titles, but saves vested rights already acquired. The authors of Lex Pandectes Françoises ( Paris , 1804), on whose authority I state this, say(1), that this great change from the principle of the Projet was made without any publication of the discussions concerning it, or of the reasons that led to it. And they state more openly than I should have expected in a book published in Paris in 1804, that in their opinion it was not an improvement. It certainly has never been received in English law.
I think that what I have above stated is quite enough to confirm Lord Stair's position that the laws of different countries relating to prescription are positive laws differing in matter,
manner, and time in different countries. I think that, though the English law as to prescription was, beyond controversy, greatly derived from the Roman law, the very words of which are often quoted in the earliest English authorities, yet, to borrow the idea expressed by Domat in the passage I have above cited, every system of law is founded on its own ideas of expediency, and that we must look to the English decisions to see what principles have been adopted in it, as upon the balance of inconvenience and convenience expedient, and what have in it been rejected as on the balance inexpedient.
It cannot be disputed that from the earliest times the owner of adjoining land was bound to respect the access of light and air acquired by enjoyment of an ancient window. The immemorial custom of London to build upon an ancient foundation, though thereby an ancicnt window was obstructed, which was pleaded and held to be a good custom in Hughes v. Keme, A.D. 1613(1),proves the great antiquity of this law. But as far as I find, the first mention of it in a reported case is Bowry and Pope's Case(2). I will read the whole of it, for though the point actually decided was only that a window first erected in the reign of Queen Mary, that is, after 1553, and not later than 1558, had not acquired in 1587 the status of an ancient window, I think the opinion of the Court on points not actually decided is important. " Bowry brought an action upon the case against Pope , and declared that in the time of Edward VI., the Dean and Chapter of Westminster leased two houses in St. Martin's , in London , to Mason for sixty years. The which Mason leased one of the said houses to one A ., and covenanted by the indenture of lease with the said A ., that it should be lawful for the said A ., his executors and assigns, to make a window in the shop of the house so to him assigned, and afterwards in the time of Queen Mary a window was made accordingly where no window was there before. And afterwards A .assigned the said house to the Plaintiff. And now Pope , having a house adjoining, had erected a new building the said new window, so as the new window is thereby stopped. The Defendant pleaded not guilty, and it was found for the Plaintiff. And it was moved for the Defendant in arrest of judgment
that here upon the declaration appeareth no cause of action, for the window, in the stopping of which the wrong is assigned, appears upon the Plaintiff's own shewing to be of late erected scilicet in the time of Queen Mary . The stopping of which by any act upon my own land was held lawful and justifiable by the whole Court. But if it were an ancient window time out of memory, & c., there the light or benefit of it ought not to be impaired by any act whatsoever, and such was the opinion of the whole Court. But if the case had been that the house and soil upon which Pope had erected the said building had been under the estate of Mason ,who covenanted as above said, then Pope could not have justified the nuisance, which was granted by the whole Court."
It is for this last opinion that I cite the case. The Court of Common Pleas do not seem to have felt the difficulty which pressed so strongly on Littledale, J., in Moore v. Rawson(1), and which leads Fry, J., in his very able opinion, to declare that this right does not lie in grant. They seem to have had no doubt that the express covenant operated as a grant of the window, and that neither Mason nor any who held under his estate, could derogate from that grant by stopping the benefit of the window.
In Trinity, 29 Eliz., about nine months later, the Queen's Bench, in Bland v. Moseley, decided the second point resolved by the Common Pleas the same way, and they also seem to have agreed with the third resolution. The case is cited in Aldred's Case(2). The reasons, as reported by Lord Coke , are: "It may be that, before time of memory, the owner of the said piece of land has granted to the owner of the said house to have the said windows without any stopping of them, and so the prescription may have a lawful beginning; and Wray , C.J., then said that for stopping as well of the wholesome air as of light, an action lies, and damages shall be recovered for them, for both are necessary, for it is said et vescitur aura ætherea , and the said words horrida tenebritate are significant, and imply the benefit of the light. But he said that for prospect, which is a matter only of delight and not of necessity, no action lies for stopping thereof,
and yet it is a great commendation of a house if it has a long and large prospect, . But the law does not give an action for such things of delight."
It will be noticed that not a word is said about the possibility of obstructing the light; and, indeed, it seems to me clear that no one could ever have thought of stopping his neighbour's lights by hoardings, until it was established that uninterrupted enjoyment for a period short of time immemorial would give a right. Then some ingenious lawyer thought of that easy mode of preventing the acquisition of a right in a window not yet privileged. The distinction between a right to light and a right of prospect, on the ground that one is matter of necessity and the other of delight, is to my mind more quaint than satisfactory. A much better reason is given by Lord Hardwicke in Attorney-General v. Doughty(1), where he observes that if that was the case there could be no great towns. I think this decision, that a right of prospect is not acquired by prescription, shews that, whilst on the balance of convenience and inconvenience, it was held expedient that the right to light, which could only impose a burthen upon land very near the house, should be protected when it had been long enjoyed, on the same ground it was held expedient that the right of prospect, which would impose a burthen on a very large and indefinite area, should not be allowed to be created, except by actual agreement. And this seems to me the real ground on which Webb v. Bird(2) and Chasemore v. Richards(3) are to be supported. The rights there claimed were analogous to prospect in this, that they were vague and undefined, and very extensive. Whether that is or is not the reason for the distinction the law has always, since Bland v. Moseley, been that there is a distinction; that the right of a window to have light and air is acquired by prescription, and that a right to have a prospect can only be acquired by actual agreement.
Shury v. Pigott, decided in 1625, is reported in Palmer , 444, Popham , 166; 3 Bulstrode , 339; Noy , 84; Latch , 153; and W .
Jones , 145. It seems to have excited a good deal of attention, and many things collaterally to have been discussed which were not necessary for the decision. The actual point decided in Shury v. Pigott was, that in a conveyance there was (though nothing was said), an implied grant that neither the conveyor nor any who claimed under him should use their lands so as to deprive the property conveyed of what was necessary for its enjoyment, in that case an artificial supply of water; a principle which, in the case of a house, would certainly include support.
In Palmer v. Fleshees(1) the first point ruled by Twysden and Wyndham , JJ., was, "if I, being seised of land, lease forty feet to A ., to erect a house upon it, and other forty feet to B. to erect a house on it, and one of them builds a house, and then the other dig a cellar in his land by which the wall of the first house adjoining falls, no action lies for this. And so they said it had been adjudged in Shury v. Pigott's Case(2), for each can make the best advantage of his own, but to them it seemed that the law was otherwise if it had been an ancient wall or house which fell by this digging." The reference to Shury v. Pigott(2) shews that in this place "ancient" means "existing before the conveyance of the land." The point actually decided was as to light, and the ratio decidendi is thus stated in the report in 1 Levinz , 122. "It was resolved that, although it be a new messuage, yet no person who claims the land by purchase under the builder" (vendor) "can obstruct the lights any more than the builder himself could, who cannot derogate from his own grant, by Twysden and Windham ,JJ., Hyde being absent and Kelynge doubting. For the lights are a necessary and essential part of the house. And Kelynge said, Suppose the land had been sold first and the house after, the vendee of the land might stop the lights. Twysden ,to the contrary, said, Whether the land be sold first or afterwards, the vendee of the land cannot stop the lights in the hands of the vendor or his assigns. But all agreed that a stranger having lands adjoining to a messuage newly erected, may stop the lights, for the building of any man on his lands
cannot hinder his neighbour from doing what he will with his own lands; otherwise if the messuage be ancient, so that he has gained a right in the lights by prescription." I say nothing as to the questions whether there is an implied reservation where the lands are parted with, as well as an implied grant where the house is parted with; or whether, when the land is sold before the house is erected on it, but on the terms that a house is to be built, the purchaser is driven to have recourse to equity to protect his subsequently built house; as neither of these questions is raised by the facts in the present case. But I think it is now established law that one who conveys a house does, by implication and without express words, grant to the vendee all that is necessary and essential for the enjoyment of the house, and that neither he, nor any who claim under him, can derogate from his grant by using his land so as to injure what is necessary and essential to the house. And I think that the right of support from the adjoining soil is necessary and essential for the enjoyment of the house.
Now, if the motive for introducing prescription is that given in the Digest, lib. xli., tit. 3, art. 1, quoted before, I think it irresistibly follows that the owner of a house, who has enjoyed the house with a de facto support for the period and under the conditions prescribed by law, ought to be protected in the enjoyment of that support, and should not be deprived of it by shewing that it was not originally given to him. And I think that the decisions ending in Backhouse v. Bonomi(1), which is put in a very clear light by Manisty , J., in his opinion, decide that he should not be deprived of it. Fry , J., thinks those decisions are contrary to principle, but too strong to be departed from. I have come to the conclusion, for the reasons I have given, that they are founded on principle.
But it still remains to inquire whether any of the doctrines established by the English law, which on the ground of expediency prevent the acquisition of a right by enjoyment, would apply.
In Backhouse v. Bonomi(1) the workings which did the mischief were at a considerable distance from the Plaintiff's house, and
would not have done any harm if the intervening minerals had not been previously removed by the Defendant. Very different considerations may arise where the intervening minerals have been removed by the Plaintiff himself, or those under whose estate he claims, or even by a third person. I express no opinion as to this, because it is not raised by the facts; but I mention the Corporation of Birmingham v. Allen(1), as Lush , J., did below, to shew that it has not been overlooked.
Neither do I think it necessary to express any opinion as to the distinction taken in Solomon v. Vintners' Company(2), where it was said that, at all events, the right, if it could be acquired against the next adjoining house, could not be acquired when there were intervening properties, for, in this case, the Defendants' land which they excavated was next adjoining to the Plaintiffs' house; and I think the right to support from the adjoining land is not open to the objection that it is extensive and indefinite, and so far analogous to a prospect. It seems much nearer in analogy to the right to the access of light to a window; perhaps if it were res integra one might doubt if it was expedient to protect an ancient window. But I see no ground for doubting that the right to forbid digging near the foundations of a house without taking proper precautions to avoid injuring it, is, for the reasons given by Lush , J.(3), one very little onerous to the neighbours, and one which it is expedient to give to the owner of the house.
No question here arises as to the effect of any disability on the part of the owner of the land, nor as to the effect of any restrictions arising from the state of the title.
But a question does arise as to whether there was not, or at least might have been, evidence of something which would prevent the enjoyment here being of that nature which would give rise to prescription on the ground that the possession was not open. The edict of the Prætor that possession must not be vi vel clam , as I think, is so far adopted in English law that no prescriptive right can be acquired where there is any concealment, and probably none where the enjoyment has not been open. And in cases where the
enjoyment was in the beginning wrongful, and the owner of the adjoining land may be said to have lost the full benefit of his rights through his laches, it may be a fair test of whether the enjoyment was open or not to ask whether it was such that the owner of the adjoining land, but for his laches, must have known what the enjoyment was, and how far it went. But in a case of support where there is no laches, and the rights of the owner of the adjoining land are curtailed for the public benefit, on the assumption that, in general, rights not exercised during a long time are not of much value, and that it is for the public good that such rights (generally trifling) should be curtailed in favour of quieting title; where that is the principle, I do not see that more can be requisite than to let the enjoyment be so open that it is known that some support is being enjoyed by the building. That is enough to put the owner of the land on exercising his full rights, unless he is content to suffer a curtailment, not in general of any consequence. And in the present case all that is suggested is that the Plaintiffs' building was not an ordinary house, but a building used as a factory, which concentrated a great part of its weight on a pillar. It had stood for twenty-seven years, and, as far as appears, would, but for the Defendants' operations, have stood for many more years; and there was nothing in the nature of concealment. Any one who entered the factory must have seen that it was supported in a great degree by the pillar. And there is not the slightest suggestion that those who made the excavation were not perfectly aware that the factory did rest on the pillar, or that they took such precautions as would have been sufficient if the building had been supported in a more usual way, but that the mischief happened from its unusual construction. That being so, I am at a loss to see what question the learned Judge could, at the trial, on this evidence have left to the jury, beyond the question whether the building had for more than twenty years openly, and without concealment, stood as it was and enjoyed without interruption the support of the neighbouring soil. The Judge offered to ask the jury if the building fell on account of the weight of the goods stored on the upper storey, and I cannot see what else could have been asked.
The second defence is a question of pure law. Ever since Quarman v. Burnett(1) it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v. Sittingbourne Railway Co.(2); Pickard v. Smith(3); Tarry v. Ashton(4).
I do not think either side disputed these principles, nor that, in Bower v. Peate(5), the Queen's Bench Division thought that the case of a man employing a contractor to excavate near the foundation of a house which had a right of support, fell within the second class of cases; nor that, if correctly decided, that case was decisive. But Butler v. Hunter(6) was relied on, which case the Court of Exchequer held fell within the first class of cases. I am not quite sure that I understand from the report what the state of the evidence was. But assuming that the Defendants are right in saying that it was such as to make the case not distinguishable from Bower v. Peate(5), I think that the reasoning in Bower v. Peate(5) is the more satisfactory of the two.
My Lords, the Court of Appeal in this case ordered that unless the Defendants elected within fourteen days to take a new trial, judgment should be entered for the Plaintiffs. If your Lordships take the view of the case which I have stated, and which is that of Lush , J., Pollock , B., Field , Manisty ,and Fry , JJ., it will be sufficient to dismiss the appeal, for the time for the election to take a new trial is long passed, and it need not be noticed.
My Lords, it is unnecessary for me to make any lengthened observations in this case. Seeing that my opinion is in substantial concurrence with what has already been said, few words of explanation will suffice to express my views.
I am of opinion that a right to lateral support from the adjoining soil may be acquired for a building which has enjoyed that support peaceably and without interruption for the prescriptive period of twenty years. That proposition appears to me to have been recognised as the law of England in a long series of weighty, if not conclusive, judicial opinions, and to have been tacitly accepted by this House in the case of Backhouse v. Bonomi(1).
The obligation which the creation of such a right by user imposes upon the owner of the adjacent soil, is to give continued support to the building. Consistently with that obligation he can make any lawful use of his land which he thinks proper. He may dig into, or even remove, the strata from which the building derives support, provided he gives efficient substituted support, by means of a retaining wall or other device. The proprietor of the building cannot, according to the decision in Backhouse v. Bonomi(1), complain that his right has been infringed, unless and until the stability of the edifice has been affected by the withdrawal of its lateral support. I agree with the noble and learned Lord on the woolsack in holding the right in question to be a proper easement, and in the results which follow from taking that view of its character. In one sense every easement may be regarded as a right of property in the owner of the dominant tenement, not a full or absolute right, but a limited right or interest in land which belongs to another, whose plenum dominium is diminished to the extent to which his estate is affected by the easement. But a right constituted in favour of estate A . and its owners, in or over the adjoining lands of B ., is in my opinion of the nature of an easement, and that whether such right is one of the natural incidents of property, or has its origin in grant or prescription.
I am unable to regard the right of support to a building, whether lateral or vertical, as a negative easement, and I concur in the observations which have been made upon that point by the noble and learned Lord on the woolsack, as well as by Lindley and Bowen , JJ. It appears to me to be as truly a positive easement, as the well known servitude oneris ferendi, when a wall or beam is rested on the servient tenement. The distinction between positive and negative easements may not be of vital importance in the present case; but in dealing with this point I am probably influenced by the consideration that a decision to the effect that an easement of lateral support to buildings is negative, would form an unsatisfactory precedent in another part of the country where positive servitudes alone are capable of being acquired by prescriptive enjoyment.
It appears to me, for reasons which have already been fully explained by your Lordships, that the Respondents have adduced proof of possession for the prescriptive period sufficient to establish their right to support from the adjacent soil, for the new or altered building which has stood for the last twenty-seven years. I do not think that any question of fact is disclosed by the pleadings or by the evidence in the case, which ought to have been, but was not, submitted to the jury.
Upon the point of law which was not remitted to the learned Judges who have favoured the House with their opinions upon the main questions arising in this appeal, I agree with your Lordships. The operations of the Commissioners were obviously attended with danger to the building in question; but these Appellants seek to shelter themselves from responsibility by proving that they took their contractor bound to adopt all measures necessary for ensuring the safety of the building. When an employer contracts for the performance of work, which properly conducted can occasion no risk to his neighbour's house which he is under obligation to support, he is not liable for damage arising from the negligence of the contractor. But in cases where the work is necessarily attended with risk, he cannot free himself from liability by binding the contractor to take effectual precautions. He is bound, as in a question with the party injured, to see that the contract is performed, and is therefore liable, as well as the contractor, to repair any damage which may be done.
I therefore concur in the judgment which has been proposed by your Lordships.
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