Correspondence
| Published date | 01 March 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01067.x |
| Date | 01 March 1965 |
CORRESPONDENCE
THE
EDITOR,
The Modern Law Review.
PROTECTION
AOAINST
THE
WEATHER
Sir,
I have read with interest Professor Garner’s letter ((1964)
27
M.L.R.
765).
I am said to have ignored the distinction between positive and negative
easements.
I
did
so
because the distinction does not seem to assist discussion.
The courts surely
do
not say,
“
Is
this
a
claim
to
a
negative easement?
If
so,
we will reject
it
because we are only going
to
recognise new positive
easements.”
A
fuller quotation than he gave from
Gale on Easements
(13th
edition, p.
30
not p.
31)
shows that any right having the required charac-
teristics will rank as an easement and that the class of easements, negative
or positive, is not closed. Presumably in error, he credits Gale with saying
that it
is
unlikely that new
positive
easements will be recognised, this should
read
“
new negative easements.”
Professor Garner says that the claim to an easement of protection is not
ejushm gemerw
with the easement of support. What does this mean? Where
are these categories of easements to be found? The categorising of easements
secnis to have been out of fashion ever since
Ballurd
v.
Dyson
(1809)
1
Taunt.
279. Ought not the same principle to apply to both, namely, that if one
building has been benefiting andther (by support
or
keeping the weather
03
in
a
way which is defined and ascertainable for such
a
time
as
to give rise
to an apparent implied grant of rights, the owner of the benefited building
can insist on the benefit continuing, but the servient owner may choose in
what manner
(e.g.,
by buttressing or by cement rendering or building an
equivalent protection depending on the circumstances) he provides substituted
and equivalent benefit.
It
is undeniable that if the grant were exnressly
made, as Professor Garner says,
“
the draftsman would certainly feel obliged
to define the servient owner‘s duties with very considerable precision.” That
is the draftsman’s job. But it is not
a
reason why the Court should not
recognise an implied easement of
a
similar nature.
Bond
v.
Nottinghm
Corporation
[I9401
Ch.
429 is very helpful here.
One cannot agree with Professor Garner‘s reading
of
Upjohn
v.
Seymour
Estates
[I9381
1
All
E.R.
614, when he says that there “support was with-
drawn, and the consequential exposure to the weather caused the dominant
tenement to suffer damage.” In that case there was
a
party wall, with the
rights of support and user conferred by section
38
(1)
of the Law
of
Property
Act, 1925. Because the wall was removed, stock
(inter
&)
in the dominant
tenement suffered damage.
It
was held that the implied rights of support and
user had been infringed.
“
User” must, therefore, have included
a
right of
protection from the weather and must have been additional to the rights
comprised in the term
“
support
”
otherwise damage to goods in the dominant
tenement would have been irrelevant. The case provides some authority
on
protection from the weather; it is not conclusive certainly.
Finally, Professor Garner says that the easement claimed in
Phipps
v.
Pears
was for the servient owner to
“
weatherproof
”
the dominant tenement.
This word was nowhere used in the case and insofar
as
it
implies what was
never claimed it is misleading. The dominant owner claimed an equivalent
protection to what had been removed, not that the servient owner should
weatherproof his wall for him. The equivalent may differ in each case
depending on how good the protection was before, weatherproofing is quite
another matter. In the former case the standard
is
a
subjective one, in the
latter an objective one.
Oldham,
Lancnshire.
H.
W.
WILKINSON.
264
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