Dalton v Henry Angus & Co; Commissioners of HM Works and Public Buildings v Henry Angus & Co; sub nom Angus & Company v Dalton

JurisdictionUK Non-devolved
CourtHouse of Lords

Easement - Support of House by adjoining Soil - Prescription - Prescription Act, 2 & 3 Will. 4, c. 71, s. 2 - Principal and Agent or Contractor - Liability of Principal for Acts of Contractor.

A right to lateral support from adjoining land may be acquired by twenty years' uninterrupted enjoyment for a building proved to have been newly built, or altered so as to increase the lateral pressure, at the beginning of that time; and it is so acquired if the enjoyment is peaceable and without deception or concealment and so open that it must be known that some support is being enjoyed by the building.

Semble, per LORD SELBORNE, L.C.:— Such a right of support is an easement within the meaning of the Prescription Act, 2 & 3 Will. 4, c. 71, s. 2.

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:—

Held, that the Plaintiffs had acquired a right of support for their factory by the twenty years' enjoyment, and could sue the owners of the adjoining house and the contractor for the injury.

Bower v. Peate (1 Q. B. D. 321) approved.

THESE were two appeals from a judgment 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. The facts proved at the trial are stated in the judgments of Lush, J., and Cockburn, C.J.F1, and of Thesiger and Brett, L.JJ.F2. For the present report the facts stated in the headnote suffice. 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 judgment to be entered for the DefendantsF1. The Court of Appeal (Cotton and Thesiger, L.JJ., diss. Brett, L.J.), reversed this judgment, and ordered that the Defendants should elect within fourteen days whether they would take a new trial, and, if they did not so elect, that judgment should be entered for the Plaintiffs for £1943, the damages assessed by the special referee, but without prejudice to the Defendants' proceedings in reference to the amount of damagesF3. Upon the appeals the following counsel appeared.

Sir F. Herschell, S.G., and Wheeler, for the Appellant Dalton.

Sir J. Holker, Q.C., Shield, and A. E. Gathorne Hardy, for the Appellants the Commissioners.

Littler, Q.C., Gainsford Bruce, and E. Ridley, for the Plaintiffs, Respondents.

The appeals were first heard Nov. 13, 14, and 17, 1879. In pursuance of an order of the House they were again heard Nov. 18, 19, 22, and 23, 1880, in presence of the following Judges: Pollock, B., Field, Lindley, Manisty, Lopes, Fry, and Bowen, JJ., to whom the following questions were put:—

1. Has the owner of an ancient building a right of action against the owner of lands adjoining if he disturbs his land so as to take away the lateral support previously afforded by that land?

2. Is the period during which the Plaintiffs' house has stood, under the circumstances stated in the case, sufficient to give them the same right as if the house was ancient?

3. If the acts done by the Defendants would have caused no damage to the Plaintiffs' building as it stood before the alterations made in 1849, is it 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?

4. If so, is it sufficient to prove knowledge or notice of the fact that such alterations were made, or is it necessary also to prove knowledge of their effect, in causing the buildings so altered to require a degree of lateral support from the adjoining land which was not before needful?”

5. Was the course taken by the learned Judge at the trial, of directing a verdict for the Plaintiffs, correct, or ought he to have left any question to the jury?

The Judges desired time to consider, and on the 17th of March, 1881, delivered the following opinions:—

“POLLOCK, B. My Lords, in answering the first question, it is necessary to bear in mind that it is not affected by any of the modern statutes whereby a prescriptive right can be gained by effluxion of time or by enjoyment; nor do I think that any useful arguments can be adduced by way of analogy from such statutes. It appears to me, however, that by a long series of decisions, and by the opinions expressed by learned Judges during a period extending over very many years, the common law affecting this question must be taken to have been settled in favour of the right. The right to lateral support of soil by adjoining soil is a natural right which exists wherever the lands of adjoining owners are in contact. The grounds upon which it is based are fully explained in the cases of Humphries v. BrogdenF4 and Rowbotham v. WilsonF5. Where the soil is encumbered by buildings it is obvious that a different question arises, although the character of the rights when acquired is in each case the same. I will now proceed to notice those cases and dicta which in my judgment establish the conclusion at which I have arrived.”

“The earliest case which has any bearing upon the question is that of Slingsby v. Barnard (14th James I.)F6. 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.)F7, 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.)F8, cited in Comyns' DigestF9, 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. WhiteF10, and by Mr. Gale in his work on Easements as from a manuscript noteF11. In Hide v. Thornborough (1846)F12, Parke, B., cited Stansell v. Jollard as 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. BrogdenF13. In Wyatt v. Harrison (1832)F14, 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...

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