Phipps v Pears
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PEARSON,LORD JUSTICE SALMON |
| Judgment Date | 10 March 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0310-2 |
| Date | 10 March 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J0310-2
The Master of the Rolls (Lord Denning)
Lord Justice Pearson and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
From his Honour Judge Lind-Smith Warwick County Court
MR JOHN FLNLAY (instructed by Messrs Kingsford, Dorman & Co., Agents for Messrs Campbell Brown & Ledbrook, Warwick) appeared as Counsel for the Appellant.
MR RAYMOND WALTON, Q. C. and MR R. J. TOYN (instructed by Messrs Field Roscoe & Co., Agents for Messrs Moore & Tibbits, Warwick) appeared as Counsel for the Respondents.
In the 1920's there were two old houses in Warwick, standing side by side, Nos. 14 and 16, Market Street. They were both owned "by a Mr Field. About 1930 he puller down No. 16 but left the old No. 14 standing. He erected a new house at No. 16, Market Street with its flank wall flat up against the old wall of No. 14. fie did not bond the two walls together, but the new wall was built up touching the old wall of No. 14.
On 17th July, 1931, Mr Field conveyed the new No. 16, Market Stree't to Helena Field, but remained himself owner of the old No. 14. Helena Field disposed of No. 16 and eventually ir 1951 Mr Phipps (the present plaintiff) bought it, as it was, standing then alongside the old No. 14. Mr Field died and his personal representative in 1957 conveyed No. 14, Market Street to the Governors of the Lord Leycester Hospital.
So there were the two houses — new No. 16 and old No. 14 — standing side by side. In 1962 the Warwick Corporation made an order for the demolition of old No. 14, Market Street because it was below the required standard. It was, I suppose, unfit for human habitation. In consequence, in September 1962 the Governors of the Lord Leycester Hospital demolished it. And whei they did so, there was left exposed the flank wall of new No. 16. This was in a very rough state. It had never been pointed. Indeed, it could not have been because of the way it was built, flat up against the old No. 14. It had never been rendered or plastered. So it was not weatherproof. The result was that the rain got in and during the winter it froze and caused cracks in the wall. Mr Phipps seeks to recover for the damage done.
In his particulars of claim Mr Phipps alleged that No. 16 had a right of support from No. 14 and that the defendants had withdrawn that support. But he failed on this point because the Judge found that No. 16 did not depend on No. 14 for its support. "There was, in fact, no support the one for the other. They were independent walls, untied one to the other".
Then Mr Phipps said — or rather it was said on his behalf — that at any rate his house No. 16 was entitled to protection from the weather. So long as No. 14 was there, it afforded excellent protection for No. 16 from rain and frost. By pulling down No. 14, the defendant he said, had infringed his right of protection from the weather. This right, he said, Was analogous to the right of support. It is settled law, of course, that a man who has his house next to another for many years, so that it is dependent on it for support, is entitled to have that support maintained. His neighbour is not entitled to pull down his house without providing substitute support in the form of buttresses or something of the kind, see Dalton v. Angus (1881) 6 A. C. 740. Similarly, it wae said, with a right to protection from the weather. If the man next door pulls down his own house and exposes his neighbour's wall naked to the weather whereby damage is done to him, he is, it is said, liable in damages.
The case, so put, raises the question whether there is a right known to the law to be protected — by your neighbour's house — from the weather. Is thure an easement of protection?
There are two kinds of easements known to the law: positive easements, such as a right of way, which give the owner of land a right hemself to do something on or to his neighbour's land, and negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour's) own land. The right of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards, but also sideways on to the adjoining building or the adjoining land, and is thus doing something to the neighbour's land, exerting a thrust on it, see Dalton v. Angus (1881) 6 A. C. at p. 793 by Lord Selborne, Lord Chancellor.
But a right to protection from the weather (if it exists) is entirely negative. It...
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