1881. DALTON v. ANGUS, L. R. 6 A. C. 740. The owner of land has a natural right in respect of it to the lateral support of the adjoining land of his neighbour. He has no such natural right of support for buildings upon his land. Such right can, however, be acquired by prescription at common law, or (possibly) under the Prescription Act, if enjoyed openly and without concealment, although it may have been practically impossible for the owner of the servient tenement to interrupt such enjoyment. These were two appeals from a judgement of the Court of Appeal. The action was brought by Angus & Co. against Dalton and the Commissioners of Her Majesty's Works and Public Buildings for damages in respect of injuries to the plaintiffs' coach factory, and was tried before Lush, J., at the Newcastle Summer Assizes, 1876. For the purposes of this report the following statement of facts taken from the headnote of the report in A. C. will suffice :— Two dwelling-houses adjoined, built independently, but each on the extremity of its owner's soil and having lateral support from the soil on which the other rested. This having continued for much more than twenty years, one of the houses (the plaintiffs') was, in 1849, converted into a coach factory, the internal walls being removed and girders inserted into a stack of brickwork in such a way as to throw much more lateral pressure than before upon the soil under the adjoining house. The conversion was made openly, and without deception or concealment. More than twenty years after the conversion the owners of the adjoining house employed a contractor to pull down their house and excavate, the contractor being bound to shore up adjoining buildings and make good all damage. The contractor employed a sub-contractor upon similar terms. The house was pulled down, and the soil under it excavated to a depth of several feet, and the plaintiffs' stack being deprived of the lateral support of the adjacent soil sank and fell, bringing down with it most of the factory. Lush, J., at the trial, directed the jury to find a verdict for the plaintiffs for the damages claimed, subject to a reference as to the amount. The Queen's Bench Division (Cockburn, C. J., and Mellor, J., diss. Lush, J.) ordered judgement to be entered for the defendants1. The Court of Appeal (Cotton and Thesiger, L. JJ., diss. Brett, L. J.) reversed this judgement, and ordered that the 1 L. R. 3 Q. B. D. 85. G g 1881. DALTON บ. ANGUS. 1881. DALTON V. ANGUS. defendants should elect within fourteen days whether they would take a new trial, and, if they did not so elect, that judgement should be entered for the plaintiffs for £1,943, the damages assessed by the special referee, but without prejudice to the defendants' proceedings in reference to the amount of damages 1. LORD BLACKBURN.-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 2 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; Smith v. Darby*; 1 L. R. 4 Q. B. D. 162, 204. 2 9 H. L. C. 503. DALTON v. ANGUS. Lord Eadon v. Jeffcock1; Aspden v. Seddon 2). But the burthen both 1881. 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 3 also conclusively settles this, that though the right of support to a building is not of common right and must be acquired, Blackburn. 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 of 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, where he himself had delivered judgement. 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. IV, 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 1881. 17. ANGUS. Lord House, whether a right of support for a building could be acquired DALTON 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 Blackburn, 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 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. He says, The English Common Law is stated by Lord Coke 2. 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 showed 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 shown to have been first built upon at a much later date. 1 L. R. 3 Q. B. D. at p. 118. 2 Co. Lit. 113 b, 114 a. 1881. v. ANGUS. In Bedle v. Beard, A. D. 16061, it was held that, though it was proved that there was a time within legal memory when the right DALTON claimed had not existed, and consequently the right could not have its origin in prescription, long possession was a sufficient ground Lord for presuming what was necessary to make that possession lawful; Blackburn. and consequently, in that case, where there had been possession for 303 years, for presuming a grant from the crown, though none was shown. 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. I, c. 16 (A. D. 1623), and as the earliest reported decision is that of Lewis v. Price in 1761, referred to in Serjeant Williams's note to Yard v. Ford 2, the doctrine is probably not much more than a century old. I quite agree with what is said by the late Chief Justice Cockburn 3, 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 2 2 Wms. Saund. 504, edition 1871. 12 Co. Rep. 5. 3 L. R. 3 Q. B. D. at p. 105. |