Acquired by Long Use
Cases
William Dunne v Sean Molloy
High Court (Circuit Court Appeal)
7 March 1977
[1976-7] I.L.R.M. 266
(Gannon J)
7
After hearing the oral evidence and arguments thereon in this appeal in Wexford I gave judgment reserving only for final consideration any further submissions which might be made on the findings of fact declared in the course of my judgment. My findings of fact may be summarised shortly as follows.
The evidence did not establish adverse user of the way as claimed for a sufficient period to establish acquisition of a right of way by prescription. The evidence offered to support entitlement to a right of way as claimed by virtue of a presumed lost grant showed that the only persons by whom such grant could have been given are living and were in court. There was no evidence of any grant. The evidence also disclosed the physical existence of a disused way which apparently has been laid in stone by the County Council in 1936 in the lifetime of the persons now living by whom a grant could have been made. This was commenced and terminated at the same termini as, but otherwise did not correspond with the passway claimed by the plaintiff. The plaintiff disclaimed use of that prepared way over a substantial portion of the defendant’s lands. There was no evidence that the plaintiff nor any predecessor of his paid for or contributed to the expense of the laying of the prepared way nor incurred any other expense in relation to the user as alleged by him. Having regard to the nature of the right claimed by the plaintiff it is of significance to point out that there is no obligation on the owner of a servient tenement to incur any expense in relation to his property for the benefit of the easement of the owner of the dominant tenement. Since 1936 there have been changes of ownership in both parcels of land in the course of which no references were made to the existence of any right or burden of the nature alleged in the claim.
Arising on these findings of fact leave was given to counsel for the plaintiff to make submissions in law as to what relief, if any, the plaintiff might be entitled to claim under the equitable jurisdiction of the court consistent with the claim made and the evidence adduced and the facts as found.
Mr Morris submits on behalf of the plaintiff that on the principle of estoppel by conduct the defendant should not be permitted now to deprive the plaintiff of a right exercised by him over the defendant’s lands with the knowledge of the defendant. He relies on the decision of the Court of Appeal in England given in Crabb v Arun District Council [1976] Ch 179, and the authorities cited therein in support of the principles set out in the judgments. It seems to me that the appropriate principles are conveniently stated in the extract quoted by Scarman LJ from the judgment of Fry J given in Willmott v Barber (1880) 15 Ch D 96 at 105–106. The quotation is as follows: *268
It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man it not to be deprived of his legal rights unless he has acted in such a way as could make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of the description. In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s lands) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done either directly or by abstaining from asserting his legal right.
I respectfully agree with the comment which then follows upon that passage made by Scarman LJ in his judgment (at 194) which is as follows:
But it is clear that whether one uses the word ‘fraud’ or not, the plaintiff has to establish as a fact that the defendant, by setting up his right, is taking advantage of him in a way which is unconscionable, inequitable or unjust. It is to be observed from the passage that I have quoted from the judgment of Fry J that the fraud or injustice alleged does not take place during the course of negotiation, but only when the defendant decides to refuse to allow the plaintiff to set up his claim against the defendant’s undoubted right. The fraud, if it be such, arises after the event, when the defendant seeks by relying on his right to defeat the expectation which he by his conduct encouraged the plaintiff to have.
Mr Peart for the defendant accepts these statements of the equitable principles but submits that on the facts as found in this case there is no room for their application. In particular he points to the absence of evidence of any expenditure by the plaintiff or his predecessors or any other acts to his detriment incurred or done with any encouragement from or even within the knowledge of the defendant or his predecessors. In my view this submission is well founded on the facts disclosed by the evidence and as found by me at the close of the hearing in Wexford. In the circumstances I must dismiss this appeal and affirm the Circuit Court order dismissing the plaintiff’s claim with costs.
Timmons v Hewitt
[1888] 22 I.L.T.R 50
Palles C.B., Dowse B., Andrews J.
Palles, C.B.
[Those cases apply the doctrine of Pyer v. Carter, 1 H & N. 916, to rights of way.]
Yes. In certain cases a right of way may pass by implied grant as an apparent and continuous easement.
[Palles, C.B.—Here it is a right over a metal road. There may be a distinction between that and a mere path.]
User for twenty years will support the finding of a jury on the question of implied grant: Campbell v. Wilson, 3 East 294. As to the evidence that should have gone to the jury to support this finding: Longford v. Purdon, I. R. 11 C. L. 267; Wright v. Metropolitan Railway Co., 11 App. Cas. 152.
[Palles, C.B.—I do not think that here there is distinct evidence as to the time of the commencement of the respective tenancies; and we shall have to decide a question for which no precise authority can be produced. If the tenant of close A. exercises a right of way over close B., as appurtenant to close A., and under such circumstances that the Prescription Act does not entitle him to claim a right of way, because the two holdings are held under a common landlord, still it is competent for a jury to draw a conclusion from such user, that a grant was made of the way that has been so used. This conclusion should be drawn in order to give a legal origin to a user, proved to have existed as of right, for a period of at least twenty years. In many cases the origin of the tenancies in the two holdings is so ancient that no evidence can be given as to which of the tenancies was first created. In any event, however, if the jury find user of right for a period of twenty years, they ought to find a legal origin for it, either by a demise from the common landlord, if they think the dominant tenement was let first, or by a grant from the tenant of the servient tenement, if they think the servient tenement was let first; and they should find for the plaintiff if they be *50 lieve that one or other of these may have been the origin of the right.]
Carton, Q.C., with him T. L. O’Shaughnessy, contra. —There is no evidence of user for forty years. Even so a forty years’ user gives no title under the 2nd section of the Prescription Act, where the holdings are held under a common landlord. This appears from the wording of the 2nd section of the Prescription Act, which begins—“No claim which may he lawfully made at the common law by custom, prescription, or grant to any way or other easement . . when such way . . shall have been so enjoyed as aforesaid ( i.e., of right and without interruption) for the full period of forty years, the right thereto shall be deemed absolute and indefeasible unless, &c.” That is a way which might lawfully be claimed at common law. if enjoyed for a period of forty years shall be indefeasibly established. Now, an easement at common law can only be worked out against the fee, and a tenant cannot acquire an easement against the fee, where the servient holding is in the occupation of a tenant of the same landlord. Large v. Pitt, Peake’s Ad. Cas. decided this point before the Prescription Act, and Bright v. Walker, 1 C. M. R. 211, and Gayford v. Moffatt, L. R. 4 Ch. 133, since. There seems somehow to be an impression that Beggan v. M’Donald (I. R. 11 C. L 362; 2 L. R. Ir. 560) overruled Bright v. Walker, at least as far as regards a user for forty years.
[Palles, C.B.—In Beggan v. M’Donald the holdings were not held under the same landlord. The question to be decided in Beggan v. M’Donald, where the holdings were held under different landlords, was, is the acquiescence of the landlord of the servient tenement for the three years mentioned in the 8th section of the Prescription Act a condition precedent to the existence of the right, or did the right exist liable at any time during the period of three years to be defeated by the interference of such landlord?]
Clancy v. Byrne, supra, does not decide that one tenant can, by prescription under the Act, acquire a right against another holding under the same landlord.
Andrews, J.
[The evidence of user in that case went to show that the parol demise included the easement.]
But even if there was any possibility of one tenant acquiring under the Act a right of way over the holding of another tenant of the same landlord, where both holdings are held under long leases (Goddard on Easements, p. 15), this doctrine could not be extended to tenancies from year to year. In Fahy v. Dwyer (4 L. R. Ir. 271) the marginal note is wrong, and gives a misleading idea of what was actually decided in the case, and Mr. Justice Lawson seems to have thought that Beggan v. M’Donald overruled Bright v. Walker, at least as far as the latter might extend to a user for forty years. Frewen v. Phillips, supra, only applies to the easement of light, which is regulated by the 3rd section of the Prescription Act, and the 3rd section is entirely general in its terms, and does not, like the 2nd, begin, “Any claim which might be lawfully made at the common law.” In Daniel v. Anderson, supra, Vice-Chancellor Kindersley, in a dictum, expressed an opinion that such an easement might be acquired, but he did not decide the question. As to the question of implied grant, if the plaintiff relies on an implied grant he must give evidence as to the beginning of the two tenancies, and that the dominant tenancy was first creat d.
Palles, C.B.
[The jury might have found that the dominant tenancy was first created, or if not, they might have found a grant from your client.]
But such a grant was never made.
[Palles, C.B.—No matter. Since the case of Deeble v. Lenehan, 12 I. C. L. Rep. 1, I have often directed juries to find, and have myself found on the hearing of a civil bill appeal, the existence of a grant, where every one knew that no grant was ever made.]
But this doctrine of a lost grant cannot be applied to the case of a tenancy from year to year.
[Palles, C.B.—Why not? I think it must extend to a tenancy from year to year.]
J. H. Campbell, in reply.—There was evidence to justify the finding of the jury that at the time of the creation of the plaintiff’s tenancy this way was demised by the landlord.
Dowse, B.
[That could not be done if at that time the defendant was in possession of his holding.]
But, if the case were left in this position, and on either side no evidence was given about the time of the commencement of either tenancy, if the jury find a continuous user for forty years as of right, and find that from the physical nature of the place the way is almost essential for the reasonable enjoyment of the holding, they would be justified in assuming that the plaintiff’s tenancy had commenced before the defendant’s, and that this way was demised with the plaintiff’s holding.
Palles, C.B.
[That may be. For example, in the case of tenant-right estates, there may be evidence of changes of tenancy in two holdings, and no evidence of which of them was first created. Suppose there was a defined laneway running to a county road from one holding clearly over another in the possession of another tenant, and used as of right for a long period by the tenant of the first holding, in that case it would be competent for a jury to find that when the landlord was parcelling out his estate he gave a right of way to the tenant of the first holding, and that such right of way actually existed when the tenancy in the second commenced, so that the second tenant took his holding subject to the right.]
It is no objection to the acquisition of the right that it is only exercised at times.
Cur. adv. vult.
Palles, C.B.—This motion to enter a verdict for the defendant involves a question of importance, not so much on account of the difficulty of the case, as on account of the frequent occurrence of the question, especially on the hearing of civil bill appeals.
The action is an action for disturbance of a right of way. The plaintiff and the defendant hold their tenements under a common landlord as tenants from year to year. Mr. Justice Holmes at the trial held that there was evidence of user of the alleged right by the plaintiff and his predecessors for upwards of forty years before the action. The question of user was left to the jury, and found by them in favour of the plaintiff, and on their finding the learned judge, on the authority of Fahy v. Dwyer, supra, directed the verdict to be entered for the plaintiff. The first question that we have to consider is whether the finding of the jury is sufficient to justify the verdict entered for the plaintiff generally.
In Fahy v. Dwyer it was decided that a right of way may be acquired by user for forty years as between tenants holding under the same landlord, and that it can be so acquired under the Prescription Act. In giving his decision Mr. Justice Lawson said (4 L. R. Ir. p. 272): “I see no reason why the Prescription Act should not apply as between two tenants of adjoining lands. Mr. Gibson has argued it cannot. This is met by the case of Frewen v. Phillips, supra, and the observations of Kindersley, V.C., in Daniel v. Anderson, supra. There is no reason why it should not apply as between two tenants, so as to bind them, though the landlord *51 should not be bound. But if there is any difficulty about the case, Beggan v. M’Donald, supra, appears to remove it, for it decided that a period of forty years’ enjoyment is absolute and indefeasible, and that Bright v. Walker applies only to a twenty years’ enjoyment.” When Beggan v. M’Donald (I. R. 11 C. L. 362) was before this court the judges were equally divided, Barons Fitzgerald and Deasy being of opinion that a plea of forty years’ user did not enable the defendant to succeed, while Baron Dowse and I were of opinion that the defendant was entitled to succeed on a plea of forty years’ user, but not on a plea of twenty years’ user, and the views of Baron Dowse and myself were confirmed by the Court of Appeal (2 L. R. Ir. 560). In Fahy v. Dwyer Mr. Justice Lawson relied on Beggan v. M’Donald, which was not a case of two tenements being held under the same landlord. In Beggan v. M’Donald the servient tenement was held under a lease, and the other holding was held under a different landlord. Barons Fitzgerald and Deasy held that under the eighth section of the Prescription Act the period during which the servient tenement was held on lease should be excluded in the computation of the forty years’ user required by the second section. Baron Dowse gives his opinion at p. 365 of I. R. 11 C. L. After reading the eighth section he says: “The effect of this section upon this case is, that the term contained in the lease shall be excluded in the computation of the forty years’ period of prescription in case the claim shall, within three years next after the end or sooner determination of the term, be resisted by the person entitled to the reversion expectant on the lease. I read this section along with those that have preceded it, and which have declared the right acquired by a forty years’ user to be absolute and indefeasible. I read it as enacting that the period comprised in the lease shall not be excluded in the computation of the forty years, unless within three years after the end of the lease the reversioner shall resist the claim.” And as the time had not arrived at which such resistance could have been made, Baron Dowse held that the eighth section did not apply. My opinion was the same, p. 381. “The sole difference between us is this—my brothers Deasy and Fitzgerald are of opinion that the easement cannot exist at all, unless it binds the fee absolutely and in every event. My brother Dowse and myself are of opinion that an enjoyment, although insufficient to bind the fee in the event of the reversioner resisting within three years, is effectual to bind, and does bind, the fee defeasibly—that is, unless and until the reversioner shall, within three years, resist.” When the case went to the Court of Appeal it was confirmed on the grounds mentioned by Baron Dowse and myself. The Lord Chancellor (at p. 567 of 2 L. R. Ir.) says: “I therefore consider myself not bound by any decision or current of authority relating to a twenty years’ user, and am obliged for myself to construe the precise language applied to a forty years’ user. And what is this? That after a forty years’ user the right shall be absolute and indefeasible—the strongest words that can be used to denote the character of a right when acquired. No doubt the owner of the reversion expectant on a lease has, notwithstanding these words, three years after the determination of the lease to resist the claim, and, if he does resist it within that time, enjoyment during the term of the lease is not to be computed in the forty years—that is, not to be computed when the time comes to be measured for his resistance; but it is nowhere said that, except in this event, and for this purpose, the term of forty years was not absolute and indefeasible where by efflux of time it was accomplished.” The Lord Chancellor here shows that the eighth section does not apply to the facts before him, for the very same reasons mentioned by Baron Dowse, and Chief Justice Morris uses words to the same effect at p. 573. “It appears to me that the eighth section does not affect the absolute and indefeasible right conferred by the second; that it merely affects the computation of time by excluding, as a matter of computation of time in the counting of the forty years, the period during which the lease existed, if the reversioner, within three years after the expiration of the lease, dispute the right.” For myself, I cannot understand how Beggan v. M’Donald should be relied on as giving colour to the proposition that there can be prescription at common law, or under the statute, as between tenants of the same landlord. When this occurs the Prescription Act does not apply, because, as was pointed out by Lord Cairns in Gayford v. Moffatt, L. R. 4 Ch. 133, the possession of the tenant of the demised holding is the possession of the landlord, and it seems an entire violation of the first principles of the relation of landlord and tenant to suppose that the tenant, whose occupation of close A. was the occupation of his landlord, could by that occupation acquire an easement over close B., also belonging to his landlord. This reasoning was acted on in Clancy v. Byrne, supra; and though Mr. Justice Lawson refers to Clancy v. Byrne in Fahy v. Dwyer, he seems, in the latter case, to have overlooked what was decided in Clancy v. Byrne. If I am asked how the user, in the present case, is not user that gives a right under the Prescription Act, it is because such user is not “as of right,” within the meaning of the second section of that Act. The user is user of a termor, who, if he acquires a right, must acquire it for the benefit of the reversioner, and as there is a common reversioner in this case, such user cannot be of right unless the reversioner can acquire a right against himself. In Frewen v. Phillips, supra, although that is a case of tenants holding under leases from a common lessor, the decision had relation to cases of light, under the third section of the Prescription Act, the terms of which section are different from those of section 2, since the third section does not require the enjoyment to have been “as of right.” Pollock, C.B., at p. 454, referring to the previous case of Truscott v. The Merchant Taylors’ Company, 11 Exch. 863, quotes with approval from the judgment of Coleridge, J., in the latter case, who refers to this difference between the two sections. Coleridge, J., says: “The third section does not say when the access and use of right shall have been enjoyed as of right ;” and this distinction shows that these cases have no reference to questions about rights of way. Daniel v. Anderson, supra, is also a case of tenants of adjoining houses holding under a common landlord. The tenant of one house acquired a right of way to his vaults through the adjoining vaults. The landlord sold both properties at one sale, with a condition “that they were to be subject to, and with the benefit, as the case might be, of all subsisting rights or easements of way or passage, so far as any lot might be affected thereby,” and the real question in the case was the construction of that condition—“that the two lots were to be subject to, &c.”—whether or not its effect was to subject the purchaser of the one lot to the right of way through the vaults, and the decision was that it did not, so that that case is not a decision of the question before us. The language of Vice-Chancellor Kindersley does not support the judgment in Fahy v. Dwyer, because he decided the case independently of the question of user.
But I entertain no doubt that there are other sufficient grounds, independent of the authority of Fahy v. Dwyer, on which this verdict can be supported. I have time after time on circuit acted upon these grounds, and it would, in my opinion, be a great misfortune that in cases like the present, not only should the doctrine of Bright v. Walker apply, but that there should be no possibility of giving in any way a legal sanction to a user that has been well known, and that has existed for so long.
I am of opinion that in the case of tenants of two farms, held under a common landlord, it is competent for a jury, from a user for twenty years without interruption as of right of a way over one of these farms by the *52 tenant of the other, to find a grant of the easement so enjoyed. Where these tenancies are not created by writing, and where the user is proved to have existed from a time as far back as memory can go, the jury may find that the dominant tenancy, in its inception, consisted not only of the land, but of the land with the right as an appurtenant. Such a demise could be made by parol, if the right existed as an easement before the demise of the farm was made.
I further think that when, in cases like the present, either of two states of facts would support the plaintiff’s right, the question should be so left to the jury, that if some of the jury think it right to infer a deed of grant of the way from the tenant of the servient tenement, and the others of the jury that the way was originally annexed to the dominant holding as an appurtenant the jury might agree in finding a verdict for the plaintiff. This gives intelligible grounds on which rights of way that have been used as of right without interruption for twenty years can be regarded as legal.
On the first point, Deeble v. Lenehan, 12 I. C. L. Rep. 1, is a conclusive authority. In that case the lands of L. had been in the occupation of tenants from 1827 to 1853. A watercourse had run through the lands of L. to a mill at D. till the obstruction in 1853, which the owner of the mill removed, and the action was brought for trespass in removing the obstruction, and the owner of the mill claimed a right to the flow of water in the watercourse. There was a difference of opinion as to whether the facts afforded evidence of acquiescence of the reversioner of the lands of L. in the enjoyment of the flow of water of the mill-owner during the above-mentioned period. Baron Fitzgerald held that there was no evidence of acquiescence on the part of the reversioner sufficient to authorise such question of presumption of grant being left to the jury, but all the court were of opinion that a grant might be presumed. This presumption was not of a grant by an owner in fee, it was of a grant made by a termor, and in that respect the same as if it had been a question of presumption of a grant by a tenant from year to year. Seven judges, including Chief Justice Lefroy, who is a great authority in cases of this kind, all decided that where there is evidence of uninterrupted user as of right of a way for twenty years, that if a jury find, as a fact, that such user existed, they ought to find the existence of a grant, though they know that no such grant was made. Hayes, J., and Hughes, B., go the length of saying that the judge ought to tell the jury, as a matter of law, that they ought to draw the inference, but the other judges were not inclined to go so far. All agree that a jury should be told that they ought to find this grant, but if the jury do not so find, that all that can be done is to set aside their verdict and direct a new trial.
I here only refer to Clancy v. Byrne, because in the judgment of Mr. Justice Lawson in that case there are expressions of a contrary opinion, but, with great respect to Mr. Justice Lawson, I think there is a fallacy in his remarks. In Clancy v. Byrne this question of a presumption of a grant was considered. In that case there was user for over forty years of a tenant of a road over other lands belonging to his landlord, which other land had been let to a different tenant two years before the action, and the action was for obstruction of the road above mentioned. Mr. Justice Lawson, after stating that it had been settled by several cases, of which Gayford v. Moffatt was an example, that a tenant cannot by user acquire a right over an adjoining close belonging to the same landlord, went on to say—“It was argued that from the user a jury might find a lost grant. I do not well see how such a presumption of a lost grant could be made in this case, because before the tenancy of the plaintiff’s grandfather both closes were in possession of the landlord; and if any ancient right of way had previously existed, it would have been extinguished by unity of possession and title in the landlord. The grant, therefore, if it be presumed at all, must have been presumed to have been made at or after the time the tenancy of the plaintiff’s grandfather commenced; and it would be a very violent presumption indeed, that when the tenancy was created by parol, a distinct deed of grant of an easement should be presumed; and, if a grant were to be presumed, it should be a grant for ever, which it would be quite inconsistent to presume as made to a yearly tenant.” In Clancy v. Byrne, Deeble v. Lenehan was not cited. What Mr. Justice Lawson says about the presumption being a violent one, would only apply to a presumption that a grant was in fact made. The presumption, however, does not rest on fact, it is drawn from a fiction, in order to give a sanction to a user that has been so long enjoyed. The reasons are stated by Lord Mansfield in Eldridge v. Knott, Cowp. 215, and are applicable to user over land in possession of a termor and so applicable to the present case of a tenancy from year to year. Applying those doctrines to the present case I am of opinion that the verdict of the jury should stand, and that the conditional order should be discharged.
Dowse, B., and Andrews, J., concurred.
Cause shown allowed. 1
Austin v Scottish Widows’ Fund Mutual Life Assurance Society
[1882] 16 I.L.T.R 3
Palles C.B., Deasy, Fitzgibbon L.JJ.
Palles, C.B.
This is an appeal from an order made by the Common Pleas Division. The action is for obstruction of a right of way. The 3rd paragraph of the statement of claim is a typical example of embarrassing pleading. What it alleges could not extend the right of way, and it was only evidence as to the user. However, the defendants did not move to strike it out, but delivered a statement of defence. At the trial, before Judge Barry, at Nisi Prius, there seems to have been no controversy except as to the question—had the right of way, as in the 2nd paragraph of the statement of claim set forth, been obstructed? [His lordship stated the facts as to raising of the floor and erecting steps.] From the report of the Judge, it appears that the plaintiff relied on there being evidence of obstruction of such right, and on the belief that the Judge could not rule that carrying heavy goods through the passage was unreasonable. Towards the carriage of heavy goods most of the evidence was directed; it was all given without objection being raised by the defendants, and much of it was given by the defendants themselves. It was impossible for the Judge to accede to the defendants’ requisition as to obstruction. The first question put by the Judge to the jury was a highly proper one. Questions 2 to 4 inclusive, relate to burdens ordinarily carried by persons on foot. As I understand, these questions are not in this appeal objected to by defendants’ counsel. I offer no opinion in regard to them, and pass them by. Then we come to questions 5-8, which relate to such burdens as might, previously to the alterations, have been carried through the passage (or, as I understand it, such burdens as the physical conditions of the passage would permit to pass), and also to burdens on trucks. I think defendants’ view of these questions is correct, and that the Judge should have complied with them. Had the answer to the Judge’s first question been in the negative, the defendants would have been entitled to a verdict, but it was in the affirmative; and we are now asked by defendants to set aside that finding, because other additional questions were also left to them. There is here involved a question of much importance. Where a question of law was (as in this case) involved, the only course formerly was for the jury to return a special verdict. Afterwards the modern practice arose of reserving the question at the trial, which the Court in banc were enabled to decide on afterwards; and thus grew up the practice of leaving all the questions to the jury, which were material on either alternative. By the Act of 1856, an appeal was given on the point reserved at the trial to the House of Lords. This has in practice led to the abolition of special verdicts, and is well described by Lord Blackburn in Dublin, Wicklow, and Wexford Railway Co. v. Slattery, L. R. 3 App. Ca. 1205. But it can only be done by leaving the facts in either alternative before the jury. This is what was here done. Defendants’ counsel says that the first question was not in fact tried at all. But is this the fact? The jury was a view jury and a special jury, and I think their verdict on the first question not unreasonable. I cannot agree that it was not fairly tried. It is said these other questions will prejudice the defendants if an injunction is sought. I think these answers will have no such effect except as to the question of obstruction, and that has been decided by the answer to the first question. Under the Jud. Act, sched. r. 32, we are enabled to set aside the findings on some of the questions, leaving others to stand. We think, therefore, the order for a new trial made by the Common Pleas Division should be discharged, the findings on questions 2 to 8 to be struck out, as being in our opinion immaterial, and that on question 1 to stand, and the judgment for the plaintiff thereon, with 6d. damages and costs, to stand; each party to bear his own costs of the proceedings in the Common Pleas Division and this Court.
Deasy, J.
A user of trucks through a gentleman’s hall-door, when a right of footway only was claimed, I think most unreasonable, and the finding of the jury on the question was equally so. Mr. Austin never carried trucks through the passage; Mr. Toole, his predecessor, did, but he was the owner of the premises. Question 2 was very objectionable. What are the burdens ordinarily carried by foot passengers? Are there included what a porter ordinarily carries on his shoulders or a bag of coal? But the alterations undoubtedly materially impeded the right of way, and on the first question the finding of the jury was very proper. By putting in an exaggerated claim, the plaintiff has lost the costs he might otherwise perhaps have obtained.
Fitzgibbon, J.
I concur with the previous judgments. There was evidence in support of the first question, and a second trial would most probably have on this point a like result. But we wholly get rid of the other findings by striking them out as immaterial. It certainly appears to me that a reasonable user of a right of footway, such as this, must be one consistent with the ordinary use by a gentleman of his own hall-door.
Pugh v Savage
[1970] EWCA Civ 9 (14 January 1970)
LORD JUSTICE HARMAN: I will ask Lord Justice Cross to give the first Judgment.
LORD JUSTICE CROSS: This is an appeal from an Order of Judge Burrell made in the Shrewsbury County Court on the 5th March, 1969. The Plaintiff, George Arnold Pugh, who is the Respondent to the appeal, owns a farm called Church Villa Farm at Loppington, near Wem, in Shropshire. He bought that farm in 1950 from one Ralphs and has farmed it himself ever since then. The farm includes a field No. 457 on the Ordnance Survey which until recently was always pasture; but recently, owing to the foot-and-mouth disease, the Plaintiff has given up keeping cattle on it and has ploughed it up.
Access to the field is obtained along a lane which runs southwards from a point opposite the Blacksmith’s Arms Inn, just outside Loppington, on the south-west; and before it reaches the north end of the field, that lane abuts on its west side on Ordnance Survey 454 and 458, which are also fields belonging to Church Villa Farm. So the Plaintiff presumably owns half the soil of the lane along that boundary. The lane ends at the north of 457, and thence a path runs, or used to run, diagonally across the field in a southerly direction to a gate 9 or 10 feet wide, with a stile beside it, between 457 and another field 547, which is not part of Church Villa Farm. The path then runs on across 457 to yet another field, 548, known as Bentley’s Field. To the north-west of 547 there is a large field, 459, which has a long frontage to the highway, some distance to the south-west of the Blacksmith’s Arms.
459 and 547 have at all material times formed part of a farm known as Factory Farm, owned by the Dickens Estate, and the tenant of those fields for many years prior to 1966 was a man also called Pugh, who was a relative of the Plaintiff. But until 1966, Field 548 (Bentley’s Field) formed part — as I understand, an isolated part — of yet another farm, Church Farm, which belonged to Major Dickens personally and later for a short time to his daughter. The tenant of that farm from 1936 to 1966 was one Burden.
In 1966 the Dickens Estate bought the freehold of Bentley’s Field and threw it into Factory Farm. At the same time Pugh and Burden gave up their respective tenancies; and the Defendant Savage, who was a stranger to the district, became tenant of Factory Farm, which then included 459 and 54-7, as it always had, and also 548. It is common ground that there is a public right of way on foot across 457 and then over the stile across 54? on to 548 and beyond.
When he took the tenancy of Factory Farm, Savage was, told by the agent of the Dickens Estate that in his capacity as tenant of 548 he would be entitled to a private right of way with vehicles over 457 and down the lane to the main road. But the Plaintiff, while not denying the existence of the public footpath, disputed the Defendant’s right of way with vehicles.
The Defendant exercised his supposed right of way in 1966 and 1967, despite the Plaintiff’s protests that he was not entitled to such a right; but by 1968 the Plaintiff had ploughed up 457) and the Defendant alleges that he had obstructed the lane where it abutted on 454 and 458 with hedge cuttings which made it impossible or at all events difficult to pass over it with vehicles.
In order, as he says, to overcome these difficulties, the Defendant took vehicles which had come down the lane from the main road over parts of 454 and 458 on lines marked on the plan annexed to the Particulars of Claim.
The Plaintiff thereupon brought this claim in the Shrewsbury County Court in August, 1968, alleging trespass and claiming an injunction and damages. The Defendant admitted that he had crossed the Plaintiff’s land as alleged. He claimed that he had a right of way for vehicles down the lane and along the line of the path across 457. He sought to justify his deviation from that line by reason of the alleged obstructions by the Plaintiff, and he counterclaimed for damages. He did not say in his Defence on what he based his claim to a right of way, and so he was asked for particulars. On the 25th October, 1968, he was asked to state the facts which were relied upon to establish the alleged right of way; if the right was alleged to arise under a deed, identifying it and giving details of the form of grant; and if the right was alleged to arise by prescription, giving details of the acts relied upon to establish the right. As he refused to give those particulars, an Order was made by the Registrar on the 13th December, 1968, telling him first to state on what grounds he alleged that he had a right of way, to which he answered:
“The Defendant’s right of way arises by prescription”;
and secondly, if he relied on prescription, saying on what grounds the right was said to arise by prescription, to which the answer was:
“A right of way with or without vehicles over the Plaintiff’s land as shown by brown dotted lines on the plan attached to the Defence has been enjoyed without interruption by the Defendant and his predecessors the occupiers of Enclosure Number 548 shown on the said plan and his or their workmen for over thirty years immediately prior to the commencement of these proceedings”.
The plan on the Defence shows that the right claimed is along the lane and along the line of the footpath from the end of the lane to the gate between 457 and 547.
At the trial, the Plaintiff and an employee of his gave evidence to the effect that prior to the Defendant becoming the tenant of Factory Farm no vehicles coming from 548 or going to 548 had crossed 457 and come up the lane. But the Judge did not accept that evidence. On the contrary, he accepted evidence given by the Defendant’s witnesses to the effect that from about 1932 to 1966 the tenant of 548, who in 1932 was one Burks and from 1936 to 1966 was Burden, had regularly used the lane and the path over 457 with vehicles. The Judge found that there were indeed only two ways in which a tenant or owner of 548 could get to the road with vehicles. One was across 547 and then through the gate over 457 and the lane; the other way was to go into 457 and then to branch to the left, north-westwards, over 459. The evidence showed that the latter route was sometimes used, but only with the consent of Pugh, the tenant of 457 and 459) whose consent was by no means always forthcoming. On the other hand, Pugh never raised any objection to vehicles passing to and from 548 over 457) nor did the owner or occupier of 457) who, of course, from 1950 to 1966 was the Plaintiff himself, ever raise any objection.
The Judge expressed his view on the evidence as to facts of user as follows:
“As far as facts are concerned, I have no hesitation in coming to the conclusion that the right to a way by prescription, as asserted by the Defendant, had been fully made out if all that had to be considered was adequacy of the established user”.
But he went on to hold (as he said, with regret) that, as a matter of law, the user proved did not establish a right of way in the Defendant. So he granted the Plaintiff the injunction which he asked for, and £11. 5. 0. damages, which was a little more than the £10 which the Defendant had paid into Court to answer damages; and he dismissed the counterclaim. The Defendant appeals from that Order.
I turn now to the legal position. One point of law to which the Judge alludes in his Judgment as possibly presenting a difficulty to the Defendant (though he does not purport to base his Judgment on it) was that the user proved was all user by tenants of the dominant tenement, 548. In my view, there is nothing in that point, and indeed Counsel for the Respondent did not himself seek to support it. Of course, a tenant cannot by user gain a prescriptive right of way for himself as tenant; but by user over land of a stranger he can gain a prescriptive right of way in fee for his landlord which he can use while he is tenant and which his landlord can grant to a subsequent tenant. Of course, a tenant cannot gain a prescriptive right for anyone by user over land which itself belongs to his own landlord, but here the acts of user by Burden from 1936 to 1966 were over 547, which belonged not to his landlord Major Dickens but to the Dickens Estate, and over 457 which belonged from 1950 to 1966 to the Plaintiff; from 1940 to 1950 to Ralphs; and in the 1930’s to some person or persons unknown.
A second point, which was not taken before the Judge but which the Respondent’s Counsel took before us, was that there was no evidence upon which the Judge could properly find -and further that, on a true reading of his Judgment, he did not find – that any right of way had been acquired between 1936 and 1966 for the benefit of Field 548 over 547, since, for all that appeared, Pugh was all that time giving his consent to the user. On that footing, Counsel argued that a right of way over 457 and the lane could not have been acquired, since the owner of 548 would have had no right to get to the terminus of that way at the gate between 457 and 547, but depended on getting the consent of the tenant of 547. As I read the Judge’s Judgment, he did find that a right of way over 547 would have been acquired but for the supposed legal difficulties, and I think that there was evidence on which he could so find. But, assuming that that is not so, the case of Todrick v. Western National Omnibus Company Limited (1934 Chancery 561) shows that a right of way may exist for the benefit of a dominant tenement although between the dominant tenement and the servient tenement there is some intervening land. In the case of Todrick itself, that intervening land was in fact owned by the owner of the dominant tenement, but all three members of the Court expressed the view that, providing that the dominant owner was able to get across the intervening land, though only by the consent of a third party, the way claimed might still be a good right of way if it was sufficiently close to the dominant land to be sensibly described as appurtenant to and for the benefit of the dominant land.
On page 574, Lord Hanworth says: “The fact that he” — that is the dominant owner —
“may have some difficulty in obtaining access to some intervening portion ought not to militate against his enjoyment of a right which is of such a nature that it is beneficial to the blue land which he occupies, and has a natural connection with the property as being for its benefit”.
On page 580, Lord Justice Romer says:
“Supposing that that right be a right to maintain some erection such as a sign upon a servient tenement, I see no reason why that should not be a good easement merely because to get to the servient tenement the owner of the dominant tenement has to go over land which does not belong to him, if and so long as he can get a right or permission to go to the servient tenement”;
and finally Lord Justice Maugham says at page 590:
“Can an owner of land not acquire a right of way leading to his tenement over two fields belonging to different owners?”
That, of course, is what was claimed here.
“I should imagine that such a right of way is constantly being acquired, and I can see no reason in common law why such an easement should not be acquired; but I am unable to see how, if the proposition to its full extent is to be accepted” —
that is the proposition that the terminus of the way must abut on the dominant tenement —
“such a right could be properly granted, because the way over the further field would not lead to the dominant tenement, but to another right of way”;
and then Lord Justice Maugham adds the significant words,
“which might be, of course, of a precarious character”.
So, even if Burden was passing over 547 with the consent of Pugh, that would not be fatal to the claim to a right of way over 457.
Then another possible legal objection was adverted to, which perhaps I should mention, though I do not think that the point commended itself to the Respondent’s Counsel. When the Dickens Estate purchased 548 in 1966, any right of way over 547 which had previously been enjoyed by 548 necessarily came to an end, since both plots came into the ownership of the same person. It was suggested in argument that that fact might have automatically put an end to any right of way acquired by the owner of 548 over 457 and the lane. I do not think that that point is sound. Of course, the purchase of 548 by the owner of 547 could not enlarge the dominant tenement. It remained only 548, but equally that purchase did not destroy the right of 548, as the dominant tenement, to pass over 457 and the lane. It continued, in my judgment, to subsist (subject to the final point which I am coming to), though the dominant owner could, during the unity of ownership, get to the terminus of the right of way over his own land.
Now, at long last, I come to the point on which the Judge decided the case against the Defendant. Although no evidence was given about it, it was apparently agreed between the representatives of the parties in the County Court, who were the Solicitors for the parties and not the Counsel appearing before us, that Ralphs shortly after he had bought 457 in 1940 granted some sort of oral tenancy of it to his son, who made some payments of rent to him, and that this tenancy continued until 1950, when the son surrendered the tenancy at the time of the purchase of the farm by the Plaintiff from his father.
We do not know the terms of the tenancy; we do not know whether the father had power to resume possession at any moment; we do not know whether he lived in the neighbourhood and knew of Burden’s acts.
The Judge, in view of that admission and in reliance on a passage in Megarry on Real Property, the 1955 edition, at page 457, held that the existence of this tenancy, which he described as “invading the prescription period”, was necessarily fatal to the Defendant’s claim. It is not clear whether, by those words “invading the prescription period”, the Judge was referring to the period from 1932 or 1936 to 1968, or whether he was referring to the period of 20 years from 1948 to 1968.
In fact, the law on this subject is put in a different way in the most recent edition of what is now “Megarry and Wade”, where it is stated as follows, on page 840:
“The user must be by or on behalf of a fee simple owner against a fee simple owner.
‘The whole theory of prescription at common law is against presuming any grant or covenant not to interrupt, by or with anyone except an owner in fee’.
An easement or profit for life or for years, for example, may be expressly granted but cannot be acquired by prescription, for the theory of prescription presumes that a permanent right has been duly created at some unspecified time in the past. A claim by prescription must therefore fail if user can be proved only during a time when the servient land was occupied by a tenant for life or for years. But if it can be shown that user as of right began against the fee simple owner, it will not be less effective because the land was later settled or let”.
Since, in this case, the user proved began against a fee simple owner in or about 1932 and so continued for eight years before this rather nebulous tenancy came into existence, it may well be that if the Judge had had the later edition referred to him, he would have reached a different conclusion from that which he did reach. But, of course, we must go behind the textbook and consider the relevant cases. The case which is referred to in connection with the last sentence which I have read is Palk v. Shinner, (1852) 18 Q.B., at page 568, more fully reported in 17 Jurist, 372. There, after user against an owner in fee since 1811, the land over which the right of way was claimed was demised in 1831 for a term of 14 years, and again in 1838, on surrender of that lease, by a fresh lease, for a term of eight years, ending in 1846. In 1851 the way was obstructed and proceedings were brought. The action was tried by Mr Justice Erle at the Exeter Assizes; and the Judge left it to the jury to say whether or not the plaintiff had enjoyed the right of way from time immemorial or for twenty years, as of right; and, as to the twenty years, he told them that the fact of such lease having existed during part of that period would not defeat the plaintiff’s right of user, under the statute. The jury found that there had been a twenty years’ user, and gave a verdict for the plaintiff.
The argument before the Court “in Banc” turned on whether Sections 7 and 8 of the Prescription Act, 1832, or either of them, applied to the case; and the Court held, as Mr Justice Erie had held at the trial at nisi prius, that they had no application. Those points, of course, have no bearing on this case at all. But all three Judges said that as those sections did not apply, the matter had to be decided as it would have been under the old law and that if the case had arisen before the statute, there would have been good evidence to go to the jury of a user as of right for twenty years from which they could infer a lost grant notwithstanding the existence of the tenancy for years. The same view was expressed by Mr Justice Littledale in Cross v. Lewis, a case before the 1832 Act, reported in 2 Barnewall & Cresswell, 686, where he said:
“It was proved that the windows had existed for thirty-eight years, and the tenancy for twenty. How the land was occupied for eighteen years before that time did not appear. I think that quite sufficient to found the presumption of a grant”.
That a distinction may be drawn between cases where the tenancy was in existence at the beginning of the period of user and cases where the tenancy came into existence in the course of the period of user, is surely only common sense. If a tenancy is in existence at the beginning of a period of user, it may well be unreasonable to imply a lost grant by the owner at the beginning of the user. He might not have been able to stop the user, even if he knew about it. If, on the other hand, you get a period of user against an owner or owners without any evidence that they did not know about it when they were in possession, and then afterwards the grant of a tenancy, though undoubtedly such a tenancy during the period of user is a matter to be considered, it would be quite wrong to hold that it is a fatal objection to presuming a grant, or to a claim under the Prescription Act.
Of course, in this case there might have been evidence that the owner or owners of the Plaintiff’s land in the 1930’s did not know what Burks and Burden were doing. There might have been evidence that Ralphs did not know what Burden was doing, either in 1940 when he bought or between 1940 and 1950; but the facts proved were simply user for eight years or so against owners in fee; then this nebulous tenancy during a period of ten years, during which Ralphs senior may very well have known all about it and indeed may have been able to stop it if he had wished; and then a period of user for 18 years against an owner in fee in occupation. When long user — here user for 36 years — of a way has been shown, I think that the law should support it if it can, and that we ought to presume, in the absence of any evidence to the contrary, that the owners of 457 in the period 1932/1940 knew of the user and that Ralphs knew of it. Indeed, Counsel for the Respondent candidly admitted that that would have been the position on these facts before 1832, and that if it is competent for the Defendant Appellant to rely on the doctrine of lost grant, as opposed to the Prescription Act, 1832, then the Judge’s decision was wrong. But he argued that, on the pleadings, the Defendant has limited himself to a claim under the Prescription Act, and he submitted that in considering a claim under the Act the Court can only look at the condition of affairs at the beginning of the 20-year period; and that, on the facts of this case, there was in 1948 a tenancy in existence which continued for a further two years. The Court, that is to say, must shut its eyes (the claim being simply under the Prescription Act) to the earlier user from 1932.
Speaking for myself, I doubt very much whether that is so and I observe that – according to the report in the Jurist -the lease in Palk v. Shinner was granted in June, 1831, whereas the 20-year period did not start until September, 1831. But it is not a point on which it is necessary to express a concluded view, because, as it seems to me, in this case the Defendant is, on the pleadings, entitled to rely not only on the Prescription Act, 1832, but on other modes of prescription, namely, common law prescription or prescription by means of a lost grant.
In his answers to the Order for particulars, he first said that he claimed a right of way by prescription, which, standing alone, would cover all three modes of prescription. But it is said that the answer to the second part of the Order cut that down, because there he said that he and his predecessors had exercised the right for over 30 years immediately prior to the commencement of the proceedings. The number 30 years certainly does not lead one to think of the Prescription Act, where the periods for rights of way are 20 and 40. So the argument really is that the addition of the words “immediately prior to the commencement of these proceedings” is an unequivocal reference to the Act and cuts down the prima facie wide meaning of the word “prescription” in the answer to the first part of the Order. That argument does not appeal to me.
Counsel referred us to a case in the Chancery Division before Mr Justice Joyce, Damper v. Bassett, in 1901 2 Chancery at page 350, as authority to induce us to hold that the Defendant here is limited to a defence under the Prescription Act. But I cannot think that it would be right for us to deal with particulars of Defence ordered in the Shrewsbury County Court in 1969 by the standard applied to Chancery pleadings in the year 1901.
It was further urged that the County Court Judge had dealt with the matter solely under the Prescription Act; but I am far from convinced that that was so. The evidence was directed to the whole period from 1932 to 1966. The passage which I quoted from the Judgment, “invading the prescription period”, is ambiguous, but I think is more likely to mean the period from 1932 to 1966 than the period from 1948 to 1966, and I very much doubt whether the distinction between the two possible modes of claiming a right by prescription was present to the minds of the Solicitors arguing the case, or, indeed, to the Judge.
Therefore, as I see it, having regard to the findings of fact which he made as to the user of the way, the Judge was wrong in concluding that he was precluded in law from holding that the Defendant had made out his case for a right of way.
It follows that he was wrong in granting an injunction to the Plaintiff. It does not, on the other hand, follow that he was wrong in granting damages to the Plaintiff. That would depend on whether or not the admitted deviation from the right of way over 454 and 458 was or was not justified. The Judge did not really direct his mind to that point. He said that the difficulty of getting down the lane was caused partly by clippings from the hedge which had been thrown into the lane, or allowed to fall into the lane, by the Plaintiff, and partly by standing water, for the presence of which, of course, the Plaintiff is not in any way responsible. He did not decide whether or not, if there had only been the clippings, and not also the water, the Defendant could or could not have got through.
So, as it seems to me, the question of those damages and of any damages that the Defendant may have suffered, which he claims by his counterclaim, and also the question of costs below, will have to go back to the County Court Judge for him to decide. But, to the extent of the injunction, my view is that this appeal should succeed.
LORD JUSTICE HARHAN: I agree. The learned County Court Judge felt himself bound in law to refuse to the Defendant a grant of a right of way, which he thought proved in fact by user, because of his view of the law. That has been the burden of the present appeal.
I am not going to re-state the facts. They are very confusing, owing to the way Her Majesty’s Ordnance numbers fields, and I have never been able to be sure that I am talking about the right one. But the user was admitted on the Respondent’s part to be enough to justify the Judge’s decision on the facts; and, therefore, with that, I leave it.
It was said that the Judge decided the matter on the view that what he called “the period of prescription” was interrupted by a letting which was conceded apparently during the course of the hearing in a way I can only regard as too indulgent, even for the laxity of procedure in the County Court. What sort of concession was made, what sort of a tenancy was intended, who knew of it, who was bound by it, for how long it lasted – all these things were completely unknown. Nevertheless, the Judge held that there was from 1940 to 1950 a period during which the field 457 was let, and he concluded that therefore there could not run a period of prescription. It is not easy to see on what basis he made that conclusion. The edition of the book on which he relied has been superseded, and the new version which my Lord has read does not seem quite consistent with it. But, nevertheless, I think he must have come to the conclusion that, as a claimant must prove either as freeholder or on behalf of a freeholder and against a freeholder that if there is no freeholder in possession at the time when the period of prescription should begin, he cannot start getting any advantage from it because the person against whom it would be made has not of necessity any knowledge of it, or, indeed, any power to prevent it, he being out of possession. If the case be limited in its effect to the Prescription Act of 1832, I think there is a great deal to be said for that proposition, and it was the chief point made by the Respondent here, that on the pleadings as they stood, the Defendant had nailed his flag to the one mast, namely, the Prescription Act of 1832, and could not rely on any other.
I follow my Lord in holding that, at any rate in a County Court, where ideal pleadings are not to be expected (there used not to be any at all very often, when I was young), the particulars given are sufficient to allow the defendant to rely on any mode of prescription which the law allows him; that is to say, prescription at common law, from time immemorial, prescription on the theory of a fictitious lost grant, or thirdly prescription under the Act.
The case in 18 Queen’s Bench, cited by my Lord, satisfies me that if the claim were made under the lost grant theory, the fact that there had been an interruption by a tenancy such as the present would in effect have been put to the jury as one of the matters for them to consider but did not debar them from coming to the conclusion, taking all facts into consideration and considering the period before as well as after the date when the tenancy existed, there ought to be held to have been at some time or other a grant in the terms necessary to provide the way.
Therefore, it seems to me that the learned County Court Judge, who did not consider this point, has misdirected himself to that extent, and that he was not precluded by the existence of the ten-year period of tenancy from holding what otherwise he would have held on the facts as he found them, as has been admitted he would have been justified in doing.
I would therefore agree with my Lord in discharging the injunction and remitting the case to the County Court Judge to settle the matters of damages between the parties on the basis that it is still uncertain whether or no the acts of deviation admittedly committed by the Defendant were justified by the state of things which he found before him. One may hope, with perhaps not very sanguine feelings, that the parties will feel they have had enough litigation and they had better get on with their job and agree between themselves. But, if they cannot do that, the only thing to do is to send it to the Judge; and, to that extent, the case must go back, the injunction being discharged. That is all the Order we make.
LORD JUSTICE SALMON: I agree with both Judgments that have been delivered, save that, like my brother Cross, I doubt whether the learned Judge’s Judgment was founded on the Act of 1832. Like my brother Cross, I incline to the view, on the note of what happened in the County Court, that neither of the Solicitors concerned, nor the learned Judge, really drew any precise line between a way acquired under the Prescription Act of 1832 or at common law or by the presumption of lost grant. Indeed, I think that when the learned Judge talked about the prescriptive period being invaded by the lease, the very nebulous lease which appears to have run between 1940 and 1950, he was referring to the period of prescription from 1932 to 1968. On the law as set out in the Second Edition of Megarry, which was the only edition which was before the learned County Court Judge, I can quite understand how the learned Judge came to the decision at which he arrived. I am confident that if he had had the benefit of having the Third Edition before him, in which the relevant passage has been completely revised, he would have decided the case in the same way as this Court has decided it.
I agree that the appeal should be allowed.
Dalton v Angus
“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. Brogden(1) and Rowbotham v. Wilson(2). 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.)(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,
(1) 12 Q. B. 739.
(2) 8 E. & B. 123.
(3) 1 Roll. Rep. 430.
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
(1) 2 Roll. Abr. 564, tit. Trespass I. pl. 1.
(2) 1 Sid. 167.
(3) Action on the Case, Nuisance C.
(4) 1 Sm. L. C. 8th Ed. p. 306.
(5) 5th Ed. p. 371.
(6) 2 Car. & Kir. 254.
(7) 12 Q. B. 749.
(8) 3 B. & Ad. 875.
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
(1) 3 M. & W. 220.
(2) 12 Q. B. 749.
(3) 1 Selw. N. P. 11th Ed. p. 457.
(4) 2 Car. & Kir. 250.
(5) 9 Ex. 708.
(6) 6 E. & B. 593; 8 E. & B. 123; 8 H. L. C. 348.
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
(1) 2 H. & N. 828.
(2) E. B. & E. 622.
(3) 9 H. L. C. 503.
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
(1) 3 B. & Ad. 871.
(2) 6 Bing. N. Cas. 1.
(3) 3 Bing. N. Cas. 334.
(4) 3 M. & W. 220.
(5) 16 East, 215.
(6) 1 Roll. Rep. 430.
(7) 9 Co. Rep. 57 b.
(8) 8 E. & B. 123.
(9) 6 E. & B. 593.
(10) 2 Macq. 449.
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
(1) E. B. & E. 655.
(2) 12 Q. B. 749.
(3) 9 Ex. 708.
(4) 8 E. & B. 140.
(5) 2 H. Bl. 267.
(6) 12 Q. B. 739.
(7) 8 E. & B. 146.
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
(1) E. B. & E. 656.
(2) 2 H. & N. 832.
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
(1) 3 B. & C. 339.
(2) E. B. & E. 654.
(3) 13 C. B. (N.S.) 843.
(4) 10 C. B. (N.S.) 268; in error. 13 C. B. (N.S.) 841.
(5) 4 C. P. D. 172.
(6) 3 Q. B. D. 89, 90.
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,
(1) 4 B. & Ald. 579.
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.”
“FIELD, J. :- My Lords, I answer your Lordships’ first question in the affirmative. I think that the owner of a building, who has uninterruptedly enjoyed the support of it by the adjacent land of his neighbour for the period required by law to make it an “ancient” building, gas acquired a right to the degree of support thus afforded, and that its absolute withdrawal so as to cause injury to the building is an actionable wrong. I also think that this right rests upon uninterrupted enjoyment and does not require for its foundation any actual or implied grant or covenant by the adjoining owner. The right seems to me to arise thus: So soon as the surface of the land becomes divided, either vertically or horizontally, into separate and exclusive tenements, one of the first and clearest principles applicable to each separate holding is, that the owner has the right given to him by implication of law to use his property as best he likes, provided that he does not by such user injure the rights of his neighbour. If neither he nor his neighbour have built on or dealt with their respective portions, and the latter are in their natural state and condition, it is clear that each owner has as against the other a right to gave his soil supported by the soil of his neighbour, whether adjacent or below, and any act done by one which destroys that support so that the land of the other falls is an actionable wrong, and that is so, although the act complained of is not done by him maliciously, but simply in the exercise of his own right to use his own property. Although, therefore, either of them may dig in his own soil ass deep and as near to his own boundary or to the surface as he chooses, this right is subject to one limitation from the very first, viz., that he cannot dig so deep and so near as to cause his neighbour’s land to sink, unless he substitute some other sufficient support: Wilde v. Minsterley(1); Humphries v. Brogden(2); Rowbotham v. Wilson(3). This limitation, however, upon his right is accompanied by a like limitation of his neighbour’s right, so that the advantage and burden are mutual in quality, although they may vary in degree.”
“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
(1) 2 Roll. Abr. 564, Trespass, I. pl. 1.
(2) 12 Q. B. 739.
(3) 8 H. L. C. 348.
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
(1) 1 Lev. 122; 1 Sid. 167; 1 Keb. 625.
(2) 3 B. & Ad. 871.
(3) 3 M. & W. 220.
(4) 2 B. & C. 686.
(5) 3 B. & C. 339.
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
(1) 2 Roll. Abr. 564, Trespass, I. pl. 1.
(2) 1 Lev. 122; 1 Sid. 167; 1 Keb. 625.
(3) 1 Selw. N. P. 11th Ed. 457.
(4) 2 C. & K. 250.
(5) 9 Ex. 707.
(6) 8 E. & B. 140, 146, 157.
(7) E. B. & E. 636.
(8) 9 H. L. C. 511.
(9) 12 Q. B. 739.
(10) 2 H. & N. 828.
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
(1) 3 M. & W. 220.
(2) 4 H. & N. 598.
(3) 1 Selw. N. P. 11th Ed. 457.
(4) 2 C. & K. 250.
(5) 12 Q. B. 739.
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
(1) 3 B. & C. 339.
(2) 49 L. J. (Ch.) 656.
(3) 8 H. L. C. 348.
(4) 3 M. & W. 220.
(5) 4 Mason, U. S. R. 402, cited in Gale on Easements, 219.
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
(1) 3 M. & W. 220.
(2) 4 H. & N. 585.
(3) 1 Lev. 122; Sid. 167; Keb. 625.
(4) 1 Selw. N. P. 11th Ed. 457.
(5) 12 Q. B. 739.
(6) 8 H. L. C. 348.
(7) 3 B. & C. 339.
(8) 3 B. & C. at p. 336.
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
(1) 2 Wms. Saund. 175 a.
(2) Ibid.
(3) 2 Wms. Saund. 175 c.
(4) Ibid.
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
(1) 2 B. & C. 686.
(2) 2 Wms. Saund. 175 c.
(3) 7 H. L. C. 349.
(4) 10 C. B. (N.S.) 268; 13 Ibid. 841.
(5) 4 C. P. D. 172.
(6) 3 B. & C. 339.
(7) 13 C. B. (N.S.) 841.
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
(1) 3 M. & W. 220.
(2) 1 Camp. 320.
(3) Law Rep. 4 Eq. 421.
(4) 3 Q. B. D. 178.
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
(1) Law Rep. 4 Eq. 421.
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.
LINDLEY, J. :- My Lords, the first question put to us by your Lordships must, in my opinion, be answered in the affirmative. The current of authority on this point from Palmer v. Fleshees(3) down to the present time is unbroken. No trace of any doubt about it can be found: and no Judge by whom this particular case has hitherto been considered has questioned it.
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
(1) 2 Wms. Saund. 175 c.
(2) 2 B. & C. 686.
(3) 1 Sid. 167.
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
(1) 1 Selw. N. P. 11th ed. 457.
(2) 3 B. & Ad. 871.
(3) 3 M. & W. 220.
(4) 2 C. & K. 250.
(5) 12 Q. B. 739.
(6) 9 Ex. 702.
(7) 6 E. & B. 593; 8 E. & B. 123; 8 H. L. C. 348.
(8) 2 H. & N. 828.
(9) 4 H. & N. 585.
(10) Joh. 705.
(11) E. B. & E. 622, 646; 9 H. L. C. 503.
(12) 2 Roll. Abr. 564, tit. Trespass I. pl. 1.
(13) E. B. & E. 622; 9 H. L. C. 503.
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
(1) 1 Selw. N. P. 11th ed. 457.
(2) 2 C. & K. 250.
v. Nicholls(1); Partridge v. Scott(2); Rowbotham v. Wilson(3); Rogers v. Taylor(4); and Humphries v. Brogden(5) all support this view, and are inconsistent with any other. In the face of this current of authority I am unable to come to the conclusion that the physical difficulty of obstruction brings the right to lateral support within the cases of Webb v. Bird(6); Chasemore v. Richards(7); and Sturges v. Bridgman(8); for if those cases applied, the right to lateral support could not be acquired at all by mere enjoyment however long continued; and in my opinion the authorities to which I have referred clearly establish that it can be so acquired under circumstances to which I propose now to allude.
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
(1) 9 Ex. 702.
(2) 3 M. & W. 220.
(3) 6 E. & B. 598; 8 E. & B. 123; 8 H. L. C. 348.
(4) 2 H. & N. 828.
(5) 12 Q. B. 739.
(6) 13 C. B. (N.S.) 841.
(7) 7 H. L. C. 349.
(8) 11 Ch. D. 852.
(9) 1 Cr. & J. 20.
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
(1) 2 B. & C. 686.
(2) 2 C. & K. 250.
(3) 9 Ex. 702.
(4) 3 M. & W. 220.
(5) 12 Q. B. 739.
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.
LOPES, J. :- My answers to the questions put to me by your Lordships are the same as those contained in the opinion of my Brother Lindley , and I give them after having carefully perused and considered the opinion he has read to your Lordships, and for the reasons stated in it.
MANISTY, J. :- My Lords, I concur in the opinions expressed by my learned Brothers Pollock and Field in answer to all the questions submitted by your Lordships to the Judges. Nevertheless I think it right to make same supplementary observations of my own with reference to the first, second, and fifth questions, each of which ought in my opinion to be answered in the affirmative. I found that opinion upon the following propositions:-
(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
(1) 4 Q. B. D. at p. 191.
(2) 8 E. & B. 123.
(3) 8 E. & B. at p. 140.
(4) E. B. & E. 622.
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.),
(1) 6 E. & B. 593; 8 E. & B. 123; 8 H. L. C. 348.
(2) E. B. & E. 646.
(3) 9 H. L. C. 503.
(4) E. B. & E. 622.
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
(1) E. B. & E. 622.
(2) 3 Q. B. D. at p. 130.
(3) 6 E. & B. 593; 8 E. & B. 123; 8 H. L. C. 348.
(4) E. B. & E. at p. 654.
(5) 4 Q. B. D. 195.
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.
FRY, J. :- My Lords, before specifically replying to the questions propounded by your Lordships, I think it desirable to express the views which I entertain upon the general subject of the right of the owner of a building to lateral support for that building by the land of an adjoining proprietor.
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).
(1) E. B. & E. 622.
(2) 8 E. & B. 123; 8 H. L. C. 348.
(3) Law Rep. 4 H L 377.
(4) Law Rep. 10 Ch. 394.
(5) 3 B. & C. 332, 340.
(6) 2 Macq. 449.
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,
(1) 12 Q. B. 739.
(2) 8 E. & B. 123.
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.
(1) 3 M. & W. 228.
(2) 12 Q. B. 739.
(3) E. B. & E. 646, 654.
(4) 2 Roll. Abr. 564, Trespass, I. pl. 1.
(5) 1 Sid. 167.
(6) 2 B. & B. 671.
(7) 2 Bl. Com. bk. ii. c. 17; 21st Ed. p. 264.
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
(1) Co. Inst. 2nd part, vol. i. p. 305.
(2) 8 Ex. 304.
(3) 7 H. L. C. 349.
(4) 10 C. B. (N.S.) 268; 13 C. B. (N.S.) 841.
(5) 11 Ch. D. 852.
(6) 10 C. B. (N.S.) at p. 382.
(7) 11 Ch. D. 862.
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).
(1) 7 H. L. C. 349.
(2) 10 C. B. (N.S.) 268; 13 C. B. (N.S.) 841.
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.”
(1) 2 Austin, Jurisp. 836, 3rd Ed.
(2) 2 B. & C. 689.
(3) 7 H. L. C. 386.
(4) 10 C. B. (N.S.) 285.
(5) 13 C. B. (N.S.) 844.
(6) 4 C. P. D. 177.
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
(1) 7 H. L. C. 386.
(2) 13 C. B. (N.S.) 841.
(3) 4 C. P. D. 177.
(4) 11 Ch. D. 852.
(5) 4 H. & N. 602.
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
(1) 3 Q. B. D. 94.
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.
BOWEN, J. :- My Lords, it appears to be established by an irresistible weight of authority than an ancient house is entitled to such support from the adjacent soil as it has immemorially enjoyed. The first question put to us by your Lordships
(1) 1 Selw. N. P. 10 Ed. 435, tit. Consequential Damages.
(2) 1 Ad. & E. 493.
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
(1) 9 Co. Rep. 58.
(2) 3 M. & W. 228.
(3) 3 B. & A. 875.
(4) 12 Q. B. 749.
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
(1) 2 Wms. Saund. 175.
(2) Cro. Eliz. 118.
(3) 2 Wms. Saund. 175a.
(4) 3 T. R. 159.
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
(1) 1 T. R. 270.
(2) 5 B. & Ald. 232.
(3) 3 B. & C. 339.
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
(1) 1 Cowp. 215.
(2) 3 Stark. Ev. 928, Ed. 1842.
(3) 1 C. M. & R. 221.
(4) 2 Wms. Saund. 175a.
(5) 6 M. & W. 492.
(6) 10 Co. Rep. 57.
(7) 3 Stark. Ev. 1160, Ed. 1842.
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.
(1) 3 B. & C. 332.
(2) 2 Wms. Saund. 175.
(3) 2 B. & C. 689.
(4) 3 M. & W. 228.
(5) 12 Q. B. 739.
(6) E. B. & E. 646, 654.
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
(1) 2 B. & B. 671.
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
(1) 12 Q. B. at p. 749.
(2) 17 Q. B. 267.
(3) 7 H. L. C. 386.
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
(1) 2 B. & C. 686.
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
(1) 2 Wms. Saund. 175a.
(2) 9 H. L. C. 503.
(3) 1 Selw. N. P. 11th ed. 457.
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.
(1) 2 C. & K. 260.
(2) 3 M. & W. 220.
The House took time to consider.
1881. June 14.
LORD COLERIDGE:-
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.
THE LORD CHANCELLOR (Lord Selborne) :-
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
(1) 1 Q B D 321.
(2) 12 Q. B. 744.
(3) 8 E. & B. 142, 146, 151.
(4) 1 E. B. & E. 639, 642, 644.
(5) 9 H. L. C. 512, 513.
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
(1) 1 E. B. & E. 655.
(2) 2 Macq. 449.
(3) 12 Q. B. 742.
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
(1) 2 Macq. 449.
(2) 12 Q. B. 756.
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
(1) 3 B. & C. 340.
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
(1) 1 E. B. & E. 635.
(2) 8 E. & B. 147.
(3) 1 Vent. 387.
(4) 1 T. R. 667.
” 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
(1) 1 Co. Lit. 113 b, 114 a.
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,
(1) 10 C. B. (N.S.) 282.
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
(1) 10 C. B. (N.S.) 282.
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
(1) 3 Q. B. D. at p. 105.
(2) 3 Q. B. D. at p. 119.
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.
LORD PENZANCE :-
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
(1) Printed Papers, Appendix, p. 69.
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
(1) 7 H. L. C. 349.
(2) 11 Ch. D. 852.
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”
(1) 10 C. B. (N.S.) 285; 13 C. B. (N.S.) 841.
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.
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(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;
(1) 9 H. L. C. 503.
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
(1) 8 H. L. C. 348.
(2) Law Rep. 7 Q. B. 716.
(3) Law Rep. 7 Ex. 379.
(4) Law Rep. 10 Ch. 394.
(5) 9 H. L. C. 503.
(6) 9 Ex. 702.
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
(1) 3 Q. B. D. at p. 118.
(2) Co. Lit. 113 b, 114 a.
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
(1) 12 Co. Rep. 5.
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
(1) 2 Wms. Saund. 504, Ed. 1871.
(2) 3 Q. B. D. at p. 105.
(3) 2 Wms. Saund. 507, Ed. 1871.
(4) 3 Q. B. D. at p. 107.
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
(1) 2 Wms. Saund. 507, Ed. 1871.
(2) 2 B. & C. 686.
(3) 10 East, 55.
(4) 3 East, 294.
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
(1) Mood. & M. 400.
(2) Law Rep. 10 Ch. 283.
(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
(1) Sir John Holker .
(2) Sir F. Herschell .
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
(1) 7 H. L. C. 349.
(2) 13 C. B. (N.S.) 841; 31 L. J. (C.P.) 335.
(3) 4 C. P. D. 175.
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,
(1) Vol. v. p. 488.
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
(1) Yelv. 215.
(2) 1 Leon. 168; Michaelmas, 29 & 30 Eliz. A.D. 1587.
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,
(1) 3 B. & C. 332.
(2) 9 Co. Rep. 58 b.
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 .
(1) 2 Ves. Sen. 453.
(2) 10 C. B. (N.S.) 268; 13 C. B. (N.S.) 841.
(3) 7 H. L. C. 349.
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
(1) 1 Sid. 167.
(2) Palmer, 444; Popham, 166; 3 Bulstrode, 339; Noy, 84; Latch, 153; W. Jones, 145.
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
(1) 9 H. L. C. 503.
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
(1) 6 Ch. D. 284.
(2) 4 H. & N. 585.
(3) 3 Q. B. D. 89.
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.
(1) 6 M. & W. 499.
(2) 6 H. & N. 488.
(3) 10 C. B. (N.S.) 473.
(4) 1 Q B D 314.
(5) 1 Q B D 321.
(6) 7 H. & N. 826.
LORD WATSON :-
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.
(1) 9 H. L. C. 503.
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.
Hanna v Pollock
[1900] 2 LR. 664 (Court of Appeal)
FitzGibbon L.J.:
..
I am clearly of opinion that there is no sufficient evidence in fact to found the presumption of a lost grant. The presumption must always be founded upon intention inferred from circumstances, from user, and from conduct. Upon the undisputed facts of this case, I find it impossible to put into black and white any form of instrument sufficient to confer the right claimed by the defendants, which any person with the lowest measure of regard for self-interest could consent to execute, and in the evidence for the defendants, which includes that of the sup posed grantee, James Pollock, I find sufficient proof both of what the transaction upon which it is now sought to found the fiction of a grant really was, and also that neither party has at any time dealt with the water in question in the way which
would be essential to constitute such a user as of right as would be necessary to sustain the finding of the jury.
In discussing the case I shall fully accept the position which Angus v. Dalton (6 App. Cas. 740) has, perhaps, advanced farther than any other case, that not only is belief in the existence of the presumed grant unnecessary, but that even where its existence is negatived, the jury not only may, but ought to, give to user as of right for the prescribed period the full effect of an actual grant, wherever the presump tion can be lawfully made. In dealing with the facts, I shall rely only on the defendants’ evidence, or on what is admitted.
In short, I shall discuss the case upon the most favourable assumption for the defendants, as indeed I am bound to do when the jury have found in their favour.
Speaking generally, I concur upon the question of fact, with Andrews, J., but it is my duty to give a detailed judgment of my own.
I take the evidence, as far as I can, in order of date, and I refer to the map printed in the Report. The oldest witness was the defendant, James Pollock, aged 89, who knows the place all his life. John Taylor, John Kerr, and Thomas M’Ken non also knew it before 1861. These witnesses prove that the water in dispute rises north of the Ballycastle road in lands now belonging to the plaintiff, called White gate or Chequer Hall. The land, both above and below the road, has a slight fall
towards the Killaggan water, a natural stream, and the natural outlet for the water from the land above the road.
At the commencement of the evidence, what is now the county road to Ciogh Mills was an ‘old avenue’ running at an angle from the Ballycastle road past the defendants’ farm. At that time, as now, water accumulated above the Ballycastle road, on the plaintiff’s lands. Until 1861, this water made its way to the Killaggan water by two courses, neither of which was a natural stream. A pipe from Con the map, carried most of the water which flowed in any defined course down to the Killaggan water. James Pollock, Taylor, Kerr, and M’Kennon all agree that before M’Curdy Hamilton, the presumed grantor, altered the flow of the water, a portion of it came straight down from Whitegate past Pollock’s by a shough at the left-hand side of the Clough Mills road to N, where it was taken under the road or ‘avenue’ to Pollock’s house through a hole which he made, and for which the county afterwards substituted a culvert. All the water running through the pipe from C, reached the Killaggan water above a scutch mill now belonging to John Mullen, but the water which ran down the Clough Mills road past Pollock’s house fell into the Killaggan water below the mill. The land both above and below the Ballycastle road, east of the Clough Mills road, belonged to the plaintiffs predecessor, and from its low lying and boggy character it needed drainage and improvement of the outlet for the water.
In this state of facts M’Curdy Hamilton, in or about 1861, made the water course, which is now the subject of dispute, from B, about half-way between C and the intersection of the roads, past the point where the carry in dispute was put up, and thence on to the Killaggan water at S, above the scutch mill.
This water-course was wide and shallow; its purpose was the drainage of Hamil ton’s lands; and it discharges more water from the lands above the road than had previously found its way either through the pipe from C, or down the shough along the road.
The main case which the defendants tried to make in evidence at the trial was that, before M’Curdy Hamilton’s operations, water ran down to the site of the carry, and from that site to the Clough Mills road, and thence to Pollock’s house. In short, the defendants tried to prove that the carry was put up originally in order to leave them water to which they were entitled, and of which they had a user as of right. This case was met, not only by evidence, part of which was given by witnesses produced for the defendants, that no water ever came to the site of the carry until the new cut made by M’Curdy Hamilton brought it there, but by the fact, admitted by James Pollock himself, that ‘the water had to be taken a wee bit up hill’ from the new course to the Clough Mills road by making the ‘carry’ in question.
The jury found, upon ample evidence, against the defendants, that ‘before the drainage operations of 1861, no water flowed as of right from the site of the carry to the Clough Mills road and thence to the defendant’s farm.’ Upon the question whether there is any evidence to sustain the presumption of a grant, this finding appears to me to be of vital importance.
I take the transaction of 1861 from the evidence of the defendant James Pollock, who was a party to it. After proving that he fetched water to the hole which he made under the Clough Mills road before the carry was made, but discounting that evidence by the finding that this water was not brought as of right from the site of the carry – which implies that it came down the side of the road – he says, ‘M’Curdy Hamilton was draining, and he and I made an agreement to send the whole water this road,’ meaning down from B.
The map and the levels show that the effect of opening the drain from B was to carry the water that previously went down the pipes from C eastwards to the upper end of the new drain at B and also possibly to carry some of the water which previously ran down the Ciogh Mills road westwards to the same point. Kerr worked for Hamilton in making the new course. I accept his evidence, that Hamilton told him ‘that James Pollock was to be left his water,’ but he describes the operation in these words: ‘M’Curdy Hamilton drained the property. I worked at the drains. When we commenced the drainage works we deepened the course from B. That course was not previously carrying any water. When we deepened it, it could carry water away, and then we put up the carry that Pollock might have the water he had been in the habit of getting. We sunk and cleaned out the drain: we did that to drain the land. I put up the carry to bring to Pollock the portion of water that hewas in the habit of getting. The carry was there twenty-five years ago in the same place in which it is now.’
Bearing in mind that the jury have found that until these operations no water flowed as of right to the carry and thence to the defendant’s farm, and the evidence that the water which previously reached Pollock’s farm ran down beside the Clough Mills road, and that such water, and such water only, fell into the Killaggan water below the scutch mill, neither Hamilton nor Pollock can have had any right in 1861 to divert any additional water from the scutch mill; Pollock could not get, and
Hamilton could not grant, any right to water diverted from the pipe atC to the new course from B.
I shall presently refer to the evidence of Mullen and of the defendant Nathaniel Pollock as to the diversion of water from the mill. Pollock’s operations were, in the words of the jury, ‘drainage operations.’ Their object was to facilitate the discharge of surface water from Hamilton’s lands above the road through Hamilton’s lands below the road. Hamilton, in the words of the plaintiff, ‘did not want the water himself.’ Hamilton and Pollock were friends’; nothing could be more natural than that Pollock should be allowed to take water from the carry to the pipe under the road; but it would be most unnatural and inconsistent with the object of the whole business, if Hamilton were to grant to Pollock a right which would involve the inability ever to deepen his drain, or even to alter or improve the escape of the drainage water from his own lands. Besides, neither he nor Pollock could divert to Pollock’s farm any water which previously fell into the Killaggan water above the scutch mill. The carry in question has been dignified with the name ofa weir. James Pollock graphically says ‘at first it wasn’t very high; it was a row of sods, anda wee row of stones high’ across a shallow shough which had a fall of only ‘about one inch’ in its entire length of 500 feet. It appears to me to be absolutely unreasonable to impute to Hamilton any intention to grant, or to Pollock any intention to acquire, any right to water lying in this new course which would not be subject to Hamilton’s retention of his right to do everything from time to time that might be reasonable for the drainage of his lands – always remembering that the jury have found that Pollock had no user as of right of any water at the locus in quo before the ‘drainage operations’ of 1861. A fair way to test the reasonableness of presuminga grant is to
take the facts as they stood in 1861 as instructions for the preparation ofa deed to confer the right now presumed.
Is it conceivable that Hamilton would impose upon himself and his successors an obligation to maintain the bottom of his shough and the top of the ‘wee row’ of sods and stones always at their then level, and never to improve or deepen his own drains? The only inference which I can draw from the facts is that he might give to Pollock liberty to carry to his farm any drainage water which Hamilton ‘did not want,’ and which could be taken without the knowledge or with the permission of the owner of the scutch mill, reserving Hamilton’s power to drain his own land ina reasonable manner from time to time. The acts now complained of consist only of scouring the water-course for the purpose of drainage, and of removing the ‘carry’ in the course of so doing. It is proved that Pollock’s supply of water could have been restored by similarly scouring the drain from the carry to his house: in short, by merely lowering the level of both drains alike. As the plaintiff puts it: ‘WhenI
cleaned out the shough, the water would all go to the Killaggan river, unless the defendants cleaned out their own fence.’
The defendants’ engineer, Mr Pinkerton, swears that the defendants’ drains
‘could be altered for £2, so as to give them all the water and not flood the plaintiffs land.’
The way in which the defendants met this state of facts appears to me to showconclusively that the right claimed has no legal existence. Nathaniel Pollock says: ‘When the plaintiff sank the stream from the carry to the river, and took the carry away, I challenged him for it. He told me to sink the shough three inches. I was threatened by Mullen with law if I did.’ And he didn’t. Mullen swore that when he heard, seventeen years ago, of the Pollocks taking the water, he went up and spoke to them and drew their attention to it, and said he would not let them take it unless they would turn it to his mill again; they promised to return it, but never did, and recently he served written notice on the defendants, which is in evidence, to send in the water that they had deprived him of for the last seventeen years, and threaten ing proceedings if they failed to do so. With the finding of the jury that there was no flow of water as of right from the carry before 1861, and the defendant’s practical admission that he did not deepen his own alleged watercourse even by three inches, because the mill-owner objected, I find it impossible to conceive a grant which could confer an absolute right to the flow of water through the course in question, it being indisputably clear that to sustain the findings, that grant must have imposed an obligation on the grantor not to carry his drainage operations any further, and for ever thereafter during his term to maintain the bottom of the shough which he made in 1861 at the same level at which it was originally constructed, and all this for the sole purpose of voluntarily giving to his neighbour a right, which the jury have found that he did not previously possess, of supplying his farm with water from a new cut which the grantor made for the more effective drainage of his own land, and therefore primarily for his own benefit. The whole doctrine of presumed grant rests upon the desire of the law to create a legal foundation for the long-continued enjoyment, as of right, of advantages which are prima facie inexplicable in the absence of legal title. In cases such as this, where the grant is admittedly a fiction, it is all the more incumbent on the Judge to see, before the question is left to the jury, that the circumstances and character of the user import that it has been ‘as of right.’ It appears to me, in the present case, that the evidence is inconsistent with right, and that the user is consistent only with permission to enjoy what the supposed grantor did not want, if and so long as that user might be consistent with the rights of third parties, and also with the grantor’s right to use his own property from time to time in a reasonable manner. Such a user never could have been as of right in its inception; it could never acquire during its continuance any higher than a permis sive character, and it therefore never could be, or become, a foundation for the presumption of a grant.
I shall refer very shortly to the cases which establish the distinction, which common sense indicates, between the cases of artificial and of natural water courses. Arkwright v. Gell (5 M. & W. 203) shows that user can confer no right of action against the owners of an artificial water-course made for a particular pur pose, when that purpose was known to the person who used the water, and when the circumstances showed that its flow was attributable to the exigencies of those who constructed it. It was there held that from such circumstances no presumption of a grant could arise. In Wood v. Wand (3 Exch. 748) more than sixty years enjoyment was held to give no right of action for diversion of the water of an artificial course, where the flow, from the nature of the case, appeared to depend upon temporary circumstances, and where the interruption was by a person stand ing in the position of a grantor. Greatrex v. Hayward (8 Exch. 291) is almost identical with the present case, and it decided that the enjoyment for twenty years of a flow of water from a drain made for the purpose of agricultural improvement did not give a right to the neighbour to preclude the proprietor from altering the level of his drain for the improvement of his land, although, in that case as in this, the jury had found in favour of the right. This principle was sanctioned, and Wood v. Wand (3 Exch. 748) was expressly affirmed, by the Privy Council in Rameshur Pershad Narain Singh v. Koonj Bahari Pattuk (4 App. Cas. 121), although in that case it was found, upon the facts, that the circumstances fairly supported the presumption of a legal right to surplus water, subject to the right of the defendant to irrigate his own lands, and to take by proper channels and other proper means, so much of the water as might be proper and requisite for such purpose.
Consistently with this last case, the only right which the defendants in the present case could have, would be a right to such water, not exceeding the flow since 1861, as they could take by adapting their carry and drain to the plaintiff’s drainage works as altered from time to time. But such a right would not sustain the defence, first because there is no evidence that the plaintiffs scouring of his drains has been in any way unreasonable or improper as a drainage operation, and secondly because the defendants did not make the changes in their carry and drain which would have continued the flow of water as it was before the plaintiff scoured his drain, because they would not face the opposition of the owner of the scutch mill. They cannot make the plaintiff answerable for that.
In my opinion, therefore, upon the third finding of the jury, there was no sufficient evidence to sustain the first and second findings, the plaintiff is entitled to judgment, and the Appeal ought to be dismissed with costs.
Upon the question of law, namely, whether since the Prescription Act, a ficti tious grant can be presumed as the foundation of a right upon less than forty years user by a termor against a termor, the Queen’s Bench was under the impression that there were Irish decisions that such a right could be so established when the fee was not bound. I read all the Irish cases with care, and it is my impression that, in the High Court, the question has never been decided in the affirmative, although opinions to that effect have been expressed by some Judges. It certainly has not been decided by this Court, and in Timmons v. Hewitt (22 L.R. Ir. 627), when the question was raised before a larger Court than the present, consisting of the Lord Chancellor, Barry and Naish, L.JJ., and myself, the expression of any opinion upon it was declined, because, in that case, as in this, the decision went against the claimant upon the question of fact, and the question of law therefore became immaterial to the judgment. I believe that we ought to take the same course now, but my colleagues think that we ought to express our opinions, and I do so in deference to them, though such expression is unnecessary to our decision, and consequently is not binding either on the Court or on ourselves.
I take the Irish cases in order of date. Deeble v. Linehan (12 I.C.L.R. 1) was decided on the 9th June, 1860. The acts were done and the action was commenced before the 1st January, 1859, the day upon which 21 & 22 Viet. c. 42 extended the Prescription Act to Ireland. It is remarkable that whenever Deeble v. Linehan (12
I.C.L.R. 1) has been relied on in the High Court as an authority for the proposition that one termor can prescribe against another, it has not been observed that the dates prevent its application to Bright v. Walker (1 C.M. & R. 211) or to the Prescription Act, and therefore that it can be no authority upon the point now at issue, viz. the effect of that Act upon the presumption of a lost grant from twenty years user. The case is open to other important observations. Although the servient tenement was held under a bishop’s lease, the evidence going to establish the right against the middle estate was extremely strong as circumstantial evidence of a grant in fact. The original watercourse was granted by deed for the purposes of a mill, which had been worked by means of it for 144 years. The watercourse in question was only a substitution for a small part of the granted stream, necessitated by an alteration of a public road for which the owner of the servient tenement had received compens.1tion. Evidence was given, and was held sufficient, of acquiesc-ence by the servient termor; the Court held, under the circumstances, thata grant might be presumed, though not found to have been actually executed. But for the existence of the fee in the bishop, the case could go no farther than Angus v. Dalton (6 App. Cas. 740) upon the law, and upon the facts it was an incomparably stronger case for maintaining the right. If it were generally applicable to all cases of twenty years’ user by termor against termor, I could not reconcile it with Hanks v. Cribbin (7 I.C.L.R. 489) decided by the Common Pleas in 1857. To treat it as an authority for prescribing for an easement from user over land not held in fee, makes it inconsistent with principle, and with several of the English judgments to which my colleagues will refer. The case becomes completely reconcileable with principle and authority, if it be assumed that the remote reversion of the bishop was treated as unaffected, or as bound by whatever bound the substantial interest, practically the
fee, of the middleman.
In Deeble v. Linehan (12 I.C.L.R. 1) Bright v. Walker (1 C.M.& R. 211) was
cited only to show that the presumption of a lost grant did not involve belief in its actual execution, but the dates prevented it from deciding anything upon the effect of the Prescription Act as laid down in Bright v. Walker (1 C.M.& R. 211).
Wilson v. Stanley (12 I.C.L.R. 345), decided by the Exchequer in 1861 and
reported in the same volume, was a decision on the Prescription Act, and if Pigot,
C.B. rightly interpreted Bright v. Walker (1 C.M. R. 211), it rules this case. Wilson sued for obstructing a mill-stream which ran across the defendant’s lands. Undera lease of 1775 which expired in 1840, under which the plaintiff’s and defendant’s lands were held, the mill-stream was made and enjoyed for more than forty years. The holding being divided, in 1841 the defendants’ lands, with the mill-stream then running across them, were leased for twenty-one years to the defendant’s predeces sor. In 1843, the mill, with the right to the water, was demised for two lives or thirty-one years to the plaintiff’s predecessor, and the stream was enjoyed without interruption until 1860. At the expiration of the lease of 1775, and at the dates of the leases of 1841 and 1843, the reversion was held by a tenant for life. There had been actual user for more than forty years before the action. The plaintiff con tended that this forty years’ enjoyment gave an absolute right under the Prescrip tion Act, sect. 2; or at all events that there had been twenty years’ enjoyment, which but for the Prescription Act would have raised the presumption ofa grant; that the Prescription Act could not be held to have superseded the Common Law; and that Bright v. Walker (1 C.M. & R. 211) was inconsistent with Wright v. Williams (1 M.& W. 77), and would lead to great injustice, especially in Ireland.
Pigot, C.B. said as to the Prescription Act:
‘Two results follow from its enactments, according to Bright v. Walker (1 C.M. &. R. 211), viz. 1. Presumptive title founded on a presumed grant, cannot now be established at all by proof of long uninterrupted enjoyment alone. 2. The prescriptive title which the statute has given the means of establishing, can only be applied where enjoyment has been such as to bind all estates, comprising the
whole fee-simple, in the servient tenement.’
He says it might have been consistent with the Act to hold prescription should be applied where the enjoyment was had for the periods defined in the earlier sections, and where the prescription was not negatived by other means than by showing commencement of enjoyment within legal memory, but that where prescription was not applicable (as where all estates in the land were not bound),a presumption of a legal origin of the enjoyment in a grant for some competent party might still be made against the party against whom, before the Act, such presumption would have had the sanction of constant practice and established user. But he says:
‘It was however otherwise held in the exposition of the statute given in the judgment in Bright v. Walker (l C.M. & R. 211).’
He refers to that decision, as never having been expressly over-ruled or even mentioned with disapprobation for more than a quarter of a century, and he held
himself, ina Court of co-ordinate jurisdiction, bound by it, notwithstanding its special importance in Ireland, where
‘It was most important that rights to water, as well as other incorporeal pri vileges, should be capable of being proved by evidence of long enjoyment, not only against the owners of the fee in possession, but against owners of derivative interests, which, in some instances, are of little less value than the fee.’
He said, equally distinctly, that the decision in Bright v. Walker (l C.M.& R.
211) would have precluded the Judge at the trial from leaving it to the jury to presume a grant,
‘For, besides the long enjoyment, there were no other circumstance presented by
the evidence, from which an inference could be drawn that a grant had been made.’
That is the state of the evidence here, and I follow Pigot, C. B., as to its effect. As to reconciling Wright v. Williams (l M. & W. 77) with Bright v. Walker (l C.M.& R. 211), he says that the only distinction which he could see between these cases was that in Bright v. Walker (l C. M. & R. 211) the enjoyment had been for less than forty years, though for more than twenty, and that in Wright v. Williams (1
M. & W. 77) it had continued for more than forty years; that the latter case therefore was decided upon the forty years’ enjoyment and the language of the Act, especially in sect. 8, relating to an enjoyment for that period.
In this he anticipated the decision in Beggan v. McDonald (2 L.R. Ir. 560), and he limited the effect of Bright v. Walker (l C.M. & R. 211) to the twenty years
enjoyment only; and as to enjoyment for the shorter period, he accepted the judgment of Parke, B., as law.
Beggan v. McDonald (2 L.R. Ir. 560) was decided by the Exchequer in 1877. In that case there were two counts for trespass quare c/ausum fregit. The defendant justified by user as of right for twenty years, and he also justified, in a distinct plea, by like user for forty years. The plaintiff’s land had been held undera lease for more than forty years before the action, for a term still subsisting. There was no evidence of acquiescence on the part of the landlord, and the defendant and his predecessors were termors under another landlord. The jury found for the defend ants on both pleas. Dowse, B., held that both the landlord and tenant had the burthen imposed on them by the forty years user, the tenant during his lease, and
the landlord, unless he put it off under sect 8, within three years after the expiration of the lease. He says (LR. 11 C.I. 362):
‘Bright v. Walker (l C.M. & R. 211) has been often questioned, but never overruled. This Court has no authority to overrule it, and, even if I were sitting ina Court of Error, I would find great difficulty in overruling a judgment that, unsatisfactory as it may be in part, has so much to be said in its favour. That case dealt only with a twenty years user, and so far as it laid down the law applicable to that period of enjoyment, I consider myself bound by its decision….toa case of twenty years’ enjoyment, the reasoning of Bright v. Walker (l C.M. & R.211) distinctly applies. The 8th section has nothing to do with this part of the case. If we were to hold here that the landlord is bound, he is bound without any possible way of freeing himself from the obligation, and this anomalous state of the law would be established, that the landlord could free himself when he was bound for forty years, and he could not free himself when he was bound for twenty years. It is clear the landlord is not bound at all. From whence, to quote Bright v. Walker (l C. M. & R. 211), we are led to conclude that an enjoyment of twenty years, if it give not a good title against all, gives no good title at all.’
Every Judge, both in the Exchequer and in the Court of Appeal, treated Bright
v. Walker (l C. M. & R. 211) as concluding the defendant upon the plea of twenty years’ user – the only user which exists here; but Dowse, B., Palles, C. B. and the whole Court of Appeal upheld the defence upon the forty years’ user, upon the difference of the provisions of the Prescription Act as to the two periods. Deasy, B., and Fitzgerald, B., decided in favour of the plaintiff upon both pleas. Deasy, B., applied the doctrine of Bright v. Walker (l C.M. & R. 211) alike to both periods, and therefore dissented from Wright v. Williams (l M. & W. 77). Fitz gerald, B. distinguished the effect of the enjoyment for the two periods; and as to the twenty years, Palles, C.B., adopted his judgment, though he dissented from the ground of ‘inconclusiveness,’ on which Fitzgerald, B., decided against the right on the forty years’ enjoyment. Fitzgerald B. says:
‘In cases under the 2nd section, if the evidence of twenty years’ enjoyment be such as, under the circumstances of the case, could not before the statute have been left to the jury as evidence of title affecting the fee, neither can it be since the statute The jury was rightly told that the evidence of enjoyment could
not, under the circumstances of the case (i.e., in the absence of acquiescence), be left to them as evidence of title affecting the fee, and that being so, the plea of twenty years’ enjoyment under the statute was not maintained.’
In this Palles, C.B., Dowse, B., and this Court all agreed. Palles, C.B., says: ‘We all agree that the object of the statute was to shorten the time of
prescription, and that the periods mentioned in it are to be deemed new times of prescription. We also agree that an enjoyment, to create a title against a particular estate in the servient tenement should be, first, such as to be capable of giving a good title against the whole fee-simple estate, and secondly, such as will in fact give that title without any further act done by the owner of the dominant tenement, provided the reversioner in the servient tenement shall not resist within three years from the determination of the lease. The sole difference between us is this, my brothers Deasy and Fitzgerald are of opinion that the easement cannot exist at all, unless it binds the fee absolutely and in every event. My brother Dowse and myself are of opinion that an enjoyment, although insufficient to bind the fee in the event of the reversioner resisting within three years, is effectual to bind, and does bind, the fee defeasibly, that is, unless and until the reversioner shall within the three years resist.’…
He quotes Bright v. Walker (l C.M. & R. 211), italicising the words, ‘an enjoyment for twenty years,’ and says:
‘The conclusion at which I have arrived from the consideration of this judg ment is, that although expressions are used in it which undoubtedly, taken literally, indicate an opinion that an easement defeasible or subject to determi nation on the happening of a condition, could not be created by enjoyment under the statute, yet the Court, in using these expressions, had in its contemplation an enjoyment for twenty years only, and that the limited application of sect. 8 rendered it unnecessary to consider the question now before us ‘
He reconciled Wright v. Williams (1 M. & W. 77), with Bright v. Walker (1 C.M. & R. 211) by holding that the opinion conveyed by the observations of Parke, B., in their more general sense, was subsequently modified so as to exclude their appli cation to forty years’ enjoyment, and said that:
‘In that sense Wright v. Williams (1 M. & W. 77) did not interfere with the decision in Bright v. Walker (1 C.M. & R. 211): it but modified dicta unneces sary to the judgment.’
He adds an observation on Wilson v. Stanley (12 LC.LR. 345), which if, correct, rules this case:
‘I take the effect of that decision to be no more than this, that Bright v. Walker (1 C.M. & R. 211) has established, now beyond controversy in this Court, that a user for twenty years will not create an easement binding any estate in the servient tenement, unless it bind the fee…. Ifthe evidence of the thirty or twenty years’ enjoyment be such as, under the circumstances of the case, could not before the Act have been left to the jury as evidence of a grant affecting the fee, it will, since the Act, be insufficient to establish the right. But whatever the circumstances may be under which the enjoyment for sixty or forty years took place, it will (if it were as of right and without interruption), as matter of law, create the right, unless in the case of the forty years it will come within the qualification in the 8th section The 6th section enacts that no presumption
shall be allowed or made in favour or support of any claim upon proof of the exercise or enjoyment of the matter claimed, for any less period of time than such period mentioned in the Act as applicable to the case and nature of the claim. The operation of this section is in no sense restricted to the cases where, but for the Act, the claim would have been to a prescription at Common Law,
i.e. from time immemorial. Cases so familiar before the statute in which juries were advised to presume a grant from the owner of some estate in the servient tenement less than fee-simple, are plainly within the enactment. In such a case, since the statute, the presumption of a grant cannot be made from the mere user for a period less than that specified in the Act, unaccompanied by other circumstances aiding the presumption. The object of the Act was to abolish
the unpleasant course of juries presuming grants, which they were convinced had never been executed in fact. The possibility of drawing this presumption is abolished, but the rights of the parties are left without the presumption, as if, in every case, in which forty years’ enjoyment under the statute has existed, the presumption, which before the statute might have been drawn, had been, in fact, drawn.’
The Court affirmed Dowse, B., and Palles, C. B., in Beggan v. McDonald (2
L.R. Ir. 560). From the headnote it appears to have been understood as a decision that the doctrine of Bright v. Walker (1 C.M. & R. 211) does not apply where the enjoyment on which the right depends has been for a period of forty years, implying that the doctrine does apply to an enjoyment for twenty years. Ball, C. says:
‘In the case of the user for twenty years, it has been decided by the judgment of the English Court of Exchequer in Bright v. Walker (1 C.M. & R. 211), that no user will avail unless adequate to bind the fee; it will not suffice that it was asserted against a lessee under the fee, and further, if it does not bind the fee, it is held not to bind anyone. This judgment has not escaped criticism, of whicha summary, distinguished by the learning and acuteness that characterised the late Pigot, C. B., may be found in Wilson v. Stanley (12 I.C.L.R. 345). But however the judgment may be criticised, it seems to me that is it now too late to question the authority of the case itself, and that whenever we are concerned with onlya
twenty years’ user, it must be followed.’
May, C.J. gives reason and authority for sustaining the doctrine of Bright v, Walker (1 C.M. & R. 211) as applied to twenty years’ user. He says:
‘The object of the Legislature’ (in the Prescription Act) ‘seems to have been definitely to fix and ascertain the periods, and the circumstances, during and under which the user of the incorporeal rights therein dealt with should be deemed to confer a title to such rights The language of Lord Westbury in Tapling v. Jones (11 H.L.C. 304) in reference to the right to the access of light is, I think, applicable to all the easements with which the Act is conversant. “It is material”, said the Chancellor, ‘to observe that the right to what is called an ancient light now depends upon positive enactment. It is matter positivi juris, and does not require, and therefore, ought not to be rested upon any assumption
of grant, or fiction of a license having to been obtained from the adjoining proprietor….”The statutory enactments confer the right, and the mode in which it is conferred can properly be ascertained only by a reference to the Act
itself.’
Morris, C.J. concurred with the other members of the Court in the judgment pronounced in favour of the defendant, upon the enjoyment for forty years, and on
that alone.
Fahey v. Dwyer (4 L.R. Ir. 271) was decided by the Common Pleas to the same
effect in 1879. There were pleas of prescription for twenty and for forty years. The jury found for the defendants on both. Lawson, J., says:
‘If there was any difficulty about the case, Beggan v. M’Donald (4 L.R. Ir.
271) appears to remove it, for it decided that a period of forty years’ enjoyment is absolute and indefeasible, and that Bright v. Walker (1 C.M.& R. 211) applies only to a twenty years’ enjoyment.’
It is immaterial to the present purpose to consider whether tenure undera common landlord ought to have made a difference.
Timmons v. Hewitt (22 L.R. Ir. 627) was tried before Holmes, J., in 1887 upon
pleas of twenty and of forty years’ user. The plaintiff’s counsel asked fora direc tion, on the ground that one tenant from year to year could not prescribe fora right of way over the land of another yearly tenant under a common landlord. The learned Judge ‘acceded’ to this proposition as far as twenty years’ prescription was concerned, but he left the question of forty years’ enjoyment to the jury, witha second question whether the landlord, at the creation of the defendant’s tenancy, reserved the way in question in favour of the plaintiffs holding. He reported that
he told the jury,
‘That they must be satisfied before they could find the first question for the plaintiff, that the user had existed for the full period of forty years and that, however clear the evidence might be of user for a shorter period, no inference ought to be drawn from this without actual evidence.’
As every prescription, by its nature, rests on the presumption ofa lost grant before legal memory, this direction must, in the mind of any one who remembers the rudimentary principle of the law, apply to the presumption of a grant, and it must rest on an adoption of the doctrine of Bright v. Walker (1 C.M. & R. 211), as applied to user for less than forty years. In the Exchequer, Palles, C. B. referred to Fahey v. Dwyer (4 L.R. Ir. 271), Beggan v. M’Donald (2 L.R. Ir. 560), and Clancy
v. Byrne (LR. 11 C.L. 355), and laid down that user and enjoyment by one tenant against another ‘is not as of right within the meaning of the Prescription Act, sect. 2 .. .’ He says:
‘It is a user by a termor who, if he aquire the right, must acquire it as incident to the land of which he is termor, and thus for the benefit of his reversioner. Such user cannot be as of right, unless a reversioner can in law by user acquire a right against himself.’
He starts the question whether, and he expresses his own opinion that,
‘It is competent for the jury to infer from twenty years’ enjoyment, as of right and without interruption of an easement claimed by the owner of one of the tenements over the land of the other tenement, held under a common landlord, either a grant by deed from one tenant to the other tenant of such easement, or where the user is proved’ (as it was there) ‘to have existed as far back as the memory of the witnesses can go a jury may infer that the alleged dominant tenement was such dominant tenement, when originally demised by the land lord, that is, that it consisted not of the land merely but of the land with a right of way as appurtenant.’
Upon the first of these propositions, he says that:
‘The decision of the Exchequer Chamber in Deeble v. Linehan (12 I.C.L.R. 1) appears to be a conclusive authority.’
With all respect for his almost unvarying accuracy, I feel that the omission to observe that Deeble v. Linehan (12 LC.L.R. 1) was decided upon the law as it stood before the Prescription Act was extended to Ireland, deprives the opinion which he formed upon that question of any possibility of support from the only authority upon which he founded it. Deeble v. Linehan (12 I.C.L.R. 1) can have had no application either to the doctrine of Bright v. Walker (1 C.M. & R. 211), or to the effect of the Prescription Act, which are the only matters with which we have now to deal.
In this Court these questions were argued in Timmons v. Hewitt (22 L.R. Ir. 627); but the Court expressly declined to express any opinion upon them, holding that there was, upon the report of the learned Judge, sufficient evidence to sustain both the findings of the jury, and therefore that the verdict should stand as well under Beggan v. M’Donald (2 L.R. Ir. 560) on the ground of forty years user, which bound the fee, as also upon the principle of Clancy v. Byrne (LR. 11 C.L. 355), that the way in question was appurtenant to the plaintiff’s holding at the time of its creation.
Therefore Timmons v. Hewitt (22 L.R. Ir. 627), applies to the point now before us only in the direction which Holmes, J., gave the jury, that no right could be acquired by user for twenty years, and in the opinion of the Chief Baron, founded on Deeble v. Linehan (12 LC.L.R. 1) in the belief that it applied to the Prescription Act.
O’Kane v. O’Kane (30 L.R. Ir. 489) was tried by Palles, CB., who repeated his opinion that twenty years user was sufficient to authorize the jury to presume a grant from one tenant to another. The jury found twenty years user, and negatived forty years user, and therefore apparently the Queen’s Bench was brought face to face with the question which we are now discussing; but because the defendant’s counsel had not objected to the question which the Chief Baron had left to the jury, the course of the trial was made the sole ground of the decision. O’Brien, C.J.,
said:
‘The course of the trial precludes the defendant from all right to insist on the objection. It is plain that the trial proceeded on the basis that the right claimed could have been created by grant Had counsel desired that the question of
lost grant should be put expressly to the jury he should have said so at the trial; and if he meant to contend that such a right could not have been, under the circumstances of the particular case, created by grant, he should have made the objection…. We decide this case upon the course of the trial; we do not formally decide whether one tenant can or cannot confer upon another sucha
right of way by grant.’
No doubt he goes on to say that he does not see why a tenant from year to year should not be able to grant such a right so long as his tenancy lasted; but as the foundation for this opinion, he adopt the view of Pigot, C.B., in Deeble v. Linehan (12 LC.L.R. 1), and he says that the course indicated by that learned Judge should asa general rule be adopted. He also omits to notice the anachronism in relying upon that case as an authority upon the Prescription Act or upon Bright
v. Walker (1 C.M. & R. 211).
This is the last Irish case upon the subject.
Before expressing my own conclusion, I must point out the extraordinary po-
sition in which the supposed right has been left in the present case as the result of the trial. The Chief Baron reports that the title of neither plaintiff nor defendant was proved by legal evidence. The plaintiff put in an assignment of January 25th, 1867, from M’Curdy Hamilton to Ann Hanna of lands demised by two leases, one dated April 10th, 1807, for eighty-seven years, which expired before action on November 1st, 1893; the second lease, dated November 4th, 1836, was of other lands, and was for thirty-one years and certain lives. The leases themselves were not put in evidence; it did not appear what part of plaintiff’s lands had been held under the last lease, nor who were the lives in the lease of 1836, nor whether they were alive or dead. The plaintiff also gave in evidence a vesting order of the Land Commission dated April 25th, 1894, whereby the fee-simple of the lands, subject to
the two leases, was vested in the plaintiff.
Though he directed a verdict and gave judgment for the defendants on the
findings of the jury, the Chief Baron reports that he abstained from giving judg ment in reference to the injunction which the defendants sought by their counterc laim, i.e. he refused to quiet the defendants in the possession of the right, because it appeared to him that the evidence was ‘in the last degree unsatisfactory’ on what, in his view, was an essential part of the case, viz., the continuance of the lives in the leases under which the plaintiffs and defendants respectively held before they
acquired the fee from the Land Commission.
In the view which he took and continued to take of the case, the right acquired
under the lost grant found by the jury was limited to the continuance both of the defendant’s lease, which does not appear to have been given in evidence at all, and of the lease of the 4th November, 1836. No evidence was given of any of the lives being in existence at the date of the writ, nor were even their names disclosed. The
report concludes:
‘The verdict for the defendants rested upon the direction whichI gave the jury that the lives must be presumed to be in existence until the contrary was
proved.’
No more striking instance could well be given of the inexpediency of weakening the effect of the doctrine in Bright v. Walker (l C.M. & R. 211), which gives to the Prescription Act the effect of substituting definite absolute and statutory rights, for limited conditional or temporary rights founded on the fiction of grants. As the result of the trial, the defendants cannot enforce the rights to which the jury have found them entitled, unless they can prove the continuance of the lease of 1836, and then only until the last life drops, unless, contrary to the opinion and direction of the Judge at the trial, a question upon the effect of the Land Purchase Acts is decided in their favour. I believe that we are all agreed that this question is not to be discussed until it arises, and it cannot arise until the lease of 1836 is proved to have expired.
My own conclusion upon the whole matter may be shortly stated; repeating that I state it only in deference to my colleagues, who think it their duty to discuss it, and that I hold myself and the Court free to reconsider it if it becomes essential to a judgment in any future case.
The doctrine of Bright v. Walker (l C.M. & R. 211), when restricted to the enactment as to twenty years’ user, appears to me to be reasonable and logical. Prescription before the Act necessarily involved the presumption of a grant before legal memory. Therefore an enactment to ‘shorten the times of prescription in certain cases’ dealt expressly with cases of enjoyment only; but it impliedly dealt with every case where the right rested on mere enjoyment. Whenever this was supplemented before the Act, the case was outside the Act, and the presumption may still be made independently of the Act, and for that purpose the plea of ‘lost grant’ remains still legitimately in use. By the words of section 2, twenty years’ enjoyment only removed the liability to defeat by proof that the enjoyment of what was claimed as of right had commenced within legal memory, and left the claim in all other respects as defeasible as before. Forty years user on the other hand, under the combined operation of sections 2 and 8, conferred the right, subject only to defeasance by a particular person, namely, the reversioner, within the prescribed time, namely, within three years after the reversion fell into possession. Section 6 prohibits any presumption, including the presumption of a lost grant, from enjoy ment for any period shorter than those fixed by the Act. Therefore, in every case in which the evidence of the right consists only, as it does here, of mere user, the presumption cannot be made unless the user covers the statutory period required to confer the right, namely, forty years, and the claim remains liable, as it was before the Act, to defeat by proof that the fee is not bound, if the user is shorter than forty years.
This is quite consistent with retaining the right to make the presumption of the lost grant from evidence, or from circumstances other than the mere user with which alone the Act is conversant.
The Irish decisions since the Act appear to me to have repeatedly recognised the application of the doctrine in Bright v. Walker (l C.M. & R. 211.) to twenty years’ enjoyment, and no English decision appears to me to be inconsistent with it. It is still recognised as an authority in every text-book.
In Ireland the only reported opinions to the contrary rest upon Deeble v. Linehan (12 I.C.L.R. 1), without observing that the case did not apply to the Prescription Act. A decision to the contrary would appear to me to be inconsistent with the view of the object of the Act which I have quoted from Pigot, C. B., Palles, C. B., Ball, C., and May, C. J. It would be equally inconsistent with all the recognisitions of the authority of Bright v. Walker (l C.M. & R. 211), as restricted to twenty years enjoyment, which I have quoted from the Irish cases.
I am not prepared now to assume that, in every one of those cases, the result
would have been the opposite of what it was, if the plea of twenty years user had been supplemented by a plea of a lost grant. I cannot assume that the right was defeated in all those cases by the mere omission of a plea. There are expressions in English cases, to which my colleagues will refer, which indicate the opinion of some individual judges that the Prescription Act left it open to the jury to finda lost grant in every case in which it might have been presumed before the statute; but if these opinions are right, or if they extend to the case of mere user by one termor against another for less than forty years, Bright v. Walker (l C.M. & R. 2ll)must be wrong, and the object of the Act, as hitherto stated, must be defeated.
I have quoted Lord Westbury (Tapling v. Jones, 11 H.L.C. 304), andI might quote Lindley, L. J., and other judges to the contrary effect; but finding the state of Irish authority to be what it is, I hold myself bound to uphold Bright v. Walker (l C.M.& R. 211) as applicable to the case before us, and to leave it to the House of Lords to throw it open again to juries, in every case of mere enjoyment, to make the false presumption of a grant against the fact, a power which the Prescription Act was, in my opinion, intended, in the words of Palles, C.B., to ‘abolish’ in the
cases to which the Act applied.
IfI am told that the practice on circuit upon Civil Bill Appeals makes this an
important question, I answer, first, that that practice, if it exists, cannot guide this Court; butI also say that the practice of ignoring Bright v. Walker (l C.M.& R.
211) is not proved. In my experience, in every case in which it is possible to do so,
evidence of acquiescence is given, in order to bind the superior estate through the acts, or even through the inaction, of landlords, of agents, or of bailiffs; or to carry back the evidence to a period of forty years, or to give circumstantial evidence ofa grant in fact. In every case in which evidence of mere user has been thus sup plemented, the additional evidence would have been unnecessary, if user alone would have sufficed. In most cases, proof of user for twenty years raises some presumptive evidence of user for forty, unless the commencement of the user between the two limits is proved. Speaking from an experience of eighteen years at the Bar, and of twenty years on the Bench, I can distinctly say that Bright v. Walker (1 C.M.& R. 211) has always been a stumbling-block in the way of relying on mere user for twenty years as sufficient to create a right against a term, andI cannot call to minda single instance in which mere user for twenty years (forty years’ user being disproved) has been made the basis for presuming a grant bya tenant, which would not bind the fee. If we discount the cases in which forty years enjoyment, or acquiescence of the owner in fee, or circumstantial evidence of a grant in fact, was called in aid,I believe that it will be found that the cases in which Bright v. Walker (1 C.M.& R. 211) has been disregarded, if any such exist, are very limited indeed in number, and are at least as questionable in law and justice as the present case
appears to me to be.
I am obliged to close my lengthened contribution to this discussion, by repeating
that it is at best, in my opinion, only an exercitation, because the defendants have failed upon the question of fact.
Walker L.J.:
This case involves two questions, one depending on the inference to be drawn
from the facts, and only of interest to the parties concerned, and the other of great general importance in Ireland, viz, whether there can arise from user as of right for twenty years, a presumption of a grant of a right of water from one termor to
another termor?
As to the first question, the defendant claims a right to havea flow of water
through an artificial cut, or channel, formed in 1861, continued by the maintenance of a carry from the point ‘Weir’ on the map to N, along the mearing fence, and thence to the defendant’s tank; and it must be taken that this flow has continued since 1861 to the removal of the carry before action by the plaintiff for the purpose of drainage works.
The fact that the watercourse is entirely artificial does not determine the ques tion, because it is well settled that a right may be acquired as such, under some legal origin, whether grant or arrangement. As is said by Wood, V.-C., in N. E. Railway Company v. Elliot (1 J. & H. 145):
‘The true distinction does not depend, as was said in Magar v. Chadwick (11 Ad. & E. 571), upon whether the channel is artificial or natural, but upon the purpose and origin of the work, and the circumstances of the enjoyment conse quent upon it.’
The facts are hardly in dispute. The plaintiffs farm is flooded by springs called the Checker Hall Springs, and before 1861, his predecessor in title had attempted to drain the farm by a pipe running from the point C to the Killaggan river, considerably above the present cut.
In 1861, the plaintiffs predecessor altered his mode of drainage, and constructed the present cut through his own lands down to the point market ‘Weir,’ and thence along the mearing drain to S, at the Killaggan river.
The jury have found that before the drainage operations of 1861, no water flowed as of right from the point ‘Weir’ to N, and there could scarcely have been any other finding, for N is at a higher level than ‘Weir,’ and the mearing ditch was choked up to 1861.
There had always been, I think, some water flowing from Whitegate above to N, and through a hole there along the road to the defendant’s tank, but not from the ‘Weir,’ and when the plaintiffs predecessor made the cut, and the mearing fences were cleared from ‘Weir’ to N, and ‘Weir’ to S, probably as a joint work, a carry was erected which turned some of the water coming down the cut to N. The plaintiff swears that the drain from ‘Weir’ to S is his own drain, which is all the evidence we have on that subject. What I think we have to ascertain is, what was the origin and purpose of the work constructed in 1861? I think upon the whole, it was – like the pipe for which it was substituted – a mere drainage operation for the plaintiffs own purposes, and on his own lands, which from the nature of the thing he could alter, or improve, or put in another place, and any grant of water which the defendant got must be of the same character as the work out of which it issued, and therefore, ex natura rai, temporary, and if temporary, the use must have been permissive, and could not form the foundation for a lost grant. It seems difficult to contend that the plaintiff should always be compelled to drain his farm in that place, and by a drain of the same depth, incapable of improvement or alteration. I think the origin and purpose of the cut rebut the idea of permanency, or creation of right. This is the view taken by Mr. Justice Andrews, with whose judgment, after consideration, I concur.
If I could think that any benefit could result from a new trial, I should be
disposed to say that the case ought to be tried again, as the objection with which I am dealing was not made at the trial; but the facts are really not in dispute, and must always bring up the question as to what was the origin and purpose of the work done in 1861.
The view I have taken would be sufficient to dispose of the case in favour of the respondents, and under ordinary circumstances it would be unnecessary to express any opinion upon the question, as to whether there can be any presumption of a lost grant arising from a twenty years’ enjoyment, as distinguished from a forty years’ enjoyment, of an easement such as claimed in this case, where the grant must be presumed to have been made by one tenant to another, either where the tenants hold under different landlords, or, as here, under the same landlord.
In this country, where long leases are so common, and even tenancies from year
to year have become almost perpetuities, the importance of a decision adverse to the possible existence of such a right cannot be exaggerated.
I think it right to say, that having given the fullest consideration to the question, I
am not prepared to concur with the view of Lord Justice FitzGibbon. In my opinion, the decision in Timmons v. Hewitt (22 L.R. Ir. 627, 641) was right.
It is interesting to trace in this country the course of decision, which is a progressive one, ultimately terminating in the decision in the Courts of first in stance of the very question which we have to decide.
In Beggan v. M’Donald (2 LR. Ir. 560) it was held by the Court of Appeal that a
period of forty years’ uninterrupted enjoyment of a way by one tenant against another created, under the Prescription Act, sections 2 and 8 together, a right absolute and indefeasible, though liable to be defeated by the reversioner within three years after the determination of the term, which in that case had not expired. The questions there arose between tenants holding under different landlords. It must be distinctly observed that it was not considered necessary that the fee should be absolutely bound. In fact the point of the case is that it was only so conditionally. In Beggan v. M’Donald (2 I.R. Ir. 560), Fitzgerald, B., and Deasy, B., in the Court of Exchequer, held that no title was given to the easement by the forty years’ enjoyment, having regard to the 8th section of the Act, and Bright v. Walker (1
C.M. & R. 211) was treated as an authority for that. Both Dowse, B., and the Chief
Baron expressed the opinion that Bright v. Walker (1 C.M. & R. 211) decided that the plea of twenty years’ user could not be sustained under the Prescription Act, inasmuch as the servient tenement was under lease. No question of lost grant between the termors arose, or was discussed in that case. The case was dealt with
solely on the Prescription Act.
In Fahey v. Dwyer (4 L.R. Ir. 271) the same question arose on a forty years’ user
between two tenants claiming under the same landlord, and the Court of Common Pleas decided that the defendant was entitled to succeed. In both these cases the action was one of trespass, and the defendant justified under a plea of a prescriptive right of way, and in Fahey v. Dwyer (4 L.R. Ir. 271) the case of Gayford v. Moffat (L.R. 4 Ch. 133) was relied on for the plaintiff.
The question next arose in Timmons v. Hewitt (22 L.R. Ir. 627), tried before
Lord Justice Holmes. That case also was one between tenants from year to year, holding under the same landlord, and the action was for obstructing a right of way. The learned Judge left to the jury two questions – 1, Did the plaintiff and his predecessors in title enjoy, as of right, and without interruption, the way on foot, and with horses and carts, for forty years before action? and 2, Did the landlord at the creation of the defendant’s tenancy reserve the way in favour of the plaintiffs? The jury found both issues for the plaintiff, and a verdict and judgment were entered for him accordingly. The case was argued before the Court of Exchequer. The Chief Baron who delivered the judgment upholding the plaintiffs verdict declined to rest it upon the doctrine of prescription, but supported it on the ground that from the enjoyment it was competent for the jury to presume a grant of the easement from one tenant to the other. The Chief Baron says (p. 647): ‘It is competent for the jury to infer from twenty years’ enjoyment as of right and without interruption of an easement claimed by the owner of one of the tenements over the land of the other tenement, a grant by deed from one tenant to the other tenant of such easement.’ The defendant appealed, and the Court dismissed the appeal, holding that there was evidence to sustain both findings of the jury, i.e. the finding of forty years’ user, and also the reservation by the landlord of the way at the creation of the defendant’s tenancy.
The case, therefore, is no authority as an appeal decision beyond this, that the Judges must have condsidered that the fact that the tenants held under the same landlord did not prevent the existence of the right. In O’Kane v. O’Kane (30 L.R. Ir. 489) the question also arose between two tenants from year to year, holding under the same landlord; the case was tried before the Chief Baron, and he left to the jury the question whether the plaintiff for the twenty years next before the suit enjoyed as of right and without interruption the way claimed, and the jury so found. On the Chief Baron’s report the Court of Queen’s Bench came to the conclusion that the question had been left with the view of raising the presumption ofa lost grant, and that no sufficient objection had been made by defendant’s
counsel, and that the course of the trial precluded him from contending that the right could not have been created by grant.
The Chief Justice, however, says: ‘We do not see why a tenant from year to year should not be able to grant such a right as long as the tenancy lasted. He could, in my opinion, confer by express grant such a right as long as his tenancy subsisted, and as to the doctrine of lost grant, I consider it a very useful one, and I think this case is an example of the salutary effect of this fiction of a lost grant.’
I think it cannot be disputed that those views of the Judges of first instance are in some respects at variance with the decision in Bright v. Walker (l C.M. & R. 221).I read that case as deciding that at all events since the Prescription Act the qualified right from termor to termor cannot arise out of a presumption of lost grant founded on an enjoyment for twenty years, and the observations in Wheaton v. Maple ([1893] 3 Ch 48) are to the same effect, and are also as it appears to me inconsistent with Beggan v. M’Donald (l I.R. Ir. 560). Being, therefore, forced to choose between the decisions in this country, and that in Bright v. Walker (l C.M. & R.
221),I shall proceed to state the reasons which induce me to prefer to follow the Irish decisions.
It will be material to see – 1, what the law was as to the presumption of a lost grant when the Prescription Act was passed, and 2, whether that Act altered the law applicable to this doctrine.
Prescription at common law involved that the user began before the time of legal memory; and, it followed from that, none could prescribe except those whose interests were sufficiently permanent – a tenancy in fee was the only continuing estate, which could have an origin coeval with legal memory, and therefore neither tenant for life or for years could prescribe, and a prescription in a que estate should always be laid in the person who was seized of the fee-simple. The instability of other estates necessarily imported that they began within the memory of man. Hence prescription at common law was always defeated by proof of the commence ment or origin of it. Still even in prescription at common law it was allowed only to supply the loss of a grant, and upon immemorial usage the law presumed an ancient grant and lawful beginning.
But in order to create a legal title which would be in harmony with long enjoyment it was in very early times established that proof of long enjoyment, though beginning within legal memory, would support a title under a fiction of lost grant, presumed from enjoyment, provided it were not by force, or secret, or by permission, and this period of enjoyment was ultimately adapted in time to the analogous period fixed by the statute 21 Jae. 1, as to lands, viz. twenty years. The principle was to quiet a possession had against another, and attribute to it for that purpose a lawful origin, the analogy of which would apply to a grant from termor to termor. No doubt the precedents of pleas of lost grant are all from owner in fee to owner in fee, which may be accounted for by their origin being at a time when the practice as to instructing a jury to presume a grant from twenty years’ enjoyment, though the origin was fixed, had not become settled on this subject. However, the observations of Parke, B., in Brightv. Walker (l C.M. & R. 211) leave the matter free from doubt. He says at p. 221: ‘Before the statute this possession,’ i.e. for twenty years, ‘would indeed have been evidence to support a plea or claim by a non-existing grant from the termor in the locus in quo to the termor under whom the plaintiff claims, though such a claim was by no means of ordinary occurrence, and in practice the usual course was to state a grant by an owner in fee to an awrier in fee, but’ (he adds) ‘since the statute such a qualified right we think is not given by an enjoyment for twenty years.’
The case of Deeble v. Linehan (12 I.C.L.R. 1) in this country decided before the Prescription Act in the Court of Error, and therefore binding on us, is an express authority to the same effect. There there had been an enjoyment of a watercourse from 1826, against occupiers of land, of which one Lyne was the reversioner. Lyne was himself sub-lessee in the second degree under the see of Cork, to which the fee belonged, and Lyne having evicted the lands and got into possession and obstructed the watercourse, it was held that there was evidence to go to the jury of a presumption, as distinguished from the actual execution of a grant, of the right, with the acquiescence of Lyne the reversioner; as he was the person who obstructed the watercourse it was necessary to establish the right against him. So in the case of Wilson v. Stanley (12 I.C.L.R. at p. 357), Pigat, C. B. in describing the objections to the reasoning in Bright v. Walker (l C.M. & R. 211), says – ‘It would apparently be consistent with the purpose disclosed in the preamble’ (i.e. of the Act) ‘that where prescription was not applicable (as where all the estates in the land were not bound) a presumption of a legal origin of the enjoyment in a grant from some competent party might still be made against the party against whom, before the Act, such presumption would have had the sanction of constant practice and established user.’ It would seem to me, therefore, that before the Prescription Act a presumption of a lost grant might have been made between two termors.
In Brightv. Walker (l C.M. & R. 211), every defence, including the defence of a way under a lost grant was open under the plea of not guilty, and there is no doubt that the Court decided that since the Act such a grant could not be available against anyone, unless it bound the fee – in other words, that the doctrine of lost grant was materially interfered with by the statute. Parke B., says – ‘We have had consider able difficulty in coming to a conclusion on the point, but upon the fullest consider ation we think that no title at all is gained by an user which does not give a valid title against all and permanently affect the see’ – in that case the fee.
Lord St. Leonards, in his work on Real Property Statutes, referring to the question decided, says – ‘It must be admitted that it is a question of great nicety.’ It may well be, and I assume, that as regards prescriptive titles the shortening of the title under that head left applicable to the new period all the doctrines which applied to prescription at common law, so that such prescriptive title would still be defeated by showing that the alleged servient tenement was held under a lease for years, but I cannot see any reason for attributing to it an intention to interfere with the doctrine of presumption of a lost grant, so far as that existed before the Act. On the contrary there are opinions of several Judges distinctly opposed to any such idea. In Angus v. Dalton (3 Q.B.D. at pp. 118,119), Cockburn, C.J., says – ‘Does the statute apply to the presumption of a lost grant at all?’ He observed that the Act professes to deal with the matter of prescription alone, and in proof of that refers to the preamble. He says further on – ‘As regards the presumption of a lost deed as rights arising from supposed grant, although the statute may have introduced easements created by grant for the purpose of making such rights indefeasible by prescription at the end of forty years, it is difficult to see how the presumption arising from an enjoyment for twenty years can be in any way affected by the Act’; and he concludes, ‘The only conclusion therefore at which I can arrive is that, 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.’
The same view appears in the judgment of Mellish, L. J. in Aynsley v. Glover (I.R. 10 Ch. 255). He says ‘The statute 2 & 3 Wm.4,c.71, has not, as I apprehend, taken away any of the modes of claiming easements which existed before the statute. Indeed, as the statute requires the twenty years or forty years (as the case may be), the enjoyment during which confers a right, to be the twenty years or forty years next immediately before some suit or action is brought with respect to the easement, there would be a variety of valuable easements which would be altogether destroyed if a plaintiff was not entitled to resort to the proof which he could have resorted to before the Act passed.’ In some practice a plea of a right under a non-existing grant is still usual, and will be applicable, as already pointed out, where a plea of user under the statute would be defeated, e.g. if the evidence of user does not go down to the action, or where there has been an interruption of enjoyment within the prescribed statutory period: see Lowe v. Carpenter (6 Ex.
825), where the defendant was given liberty to amend by putting on the recorda plea of non-existing grant.
In Bright v. Walker (l C.M. & R. 211) the jury found that they would not presume any grant of a right of way by the bishop, the owner in fee, and the Court held, first, that enjoyment gave no right against the bishop, bringing in aid in
support of that view section 8 – a view which, so far as resting on section 8 has been criticised, and even dissented from.
Now, as before the Prescription Act, possession for over twenty years would have been evidence to support a claim or plea of lost grant from termor to termor, nothing was wanted in the way of legislation to extend this if facilities were intended to be given for supporting title founded on enjoyment. But prescription stood on a different footing. It should have been from time immemorial, and titles by immemorial prescription were such as absolutely bound the fee. On principle it would seem that the shortening by the statute of the term of prescription would still
leave its character the same, and, therefore it should be a user against the fee if you rest your claim on prescription.
But it seems strange that the making the prescriptive title easier by shortening the duration of the necessary user to twenty years should be held to take away the qualified right which existed before it, the presumed grant from termor to termor which I assume to have existed before. Parke, B., says, ‘The statute nowhere contains any intimation that there may be different classes of rights – qualified and absolute – valid as to some and invalid as to others'(Bright v. Walker, l C.M. & R. 211). True, but it contains no contrary intimation, and I can conceive no reason for saying that a statute which was intended to facilitate title by enjoyment should be held to take away a class of title by enjoyment which existed before it and which from its qualified character does not interfere with, and is not inconsistent with, title by prescription in its old character from user from time immemorial against the fee, or its statutory character of twenty years against the fee.
It is admitted in the judgment that nothing in the statute prevents the operation of an actual grant from lessee to lessee though lost, if the proof of the loss be given, and secondary evidence of its contents adduced.
In the case of a presumed lost grant the jury always found its existence by presumption, being directed that they might so find, and I think I may add, even though they did not believe it was ever made, and it is difficult to see why presumed grant and actual grant should stand on a different footing for the confirming of the right. I assume that no circumstance is attached to the enjoyment which would have defeated the presumption before the statute, such as that it was secret or permis sive, &c. Section 2 of the Prescription Act creates an additional mode of claiming easements, but that has not abolished the former modes, and if the mode of claiming an easement under a presumed though really non-existing grant survives the statute at all, why should it not survive with all its incidents, one of which was that a termor might be presumed to have granted to another, when he might have done so before?
To say that the statute has not created a new class of easements is one thing, but to say it has destroyed a previously existing kind is another. It is true that there are dicta that an easement for a limited time, or available only against a particular owner or occupier of the alleged servient tenement, could not have been created before the statute, or since it, save by a grant to be proved as a fact and not inferred by legal presumption.
But the case of Deeble v. Linehan (12 I.C.L.R. 1) is an express authority binding on us that before the statute a right to the enjoyment of a watercourse may be established under the doctrine of presumed lost grant against a tenant, when the fee is not bound. It cannot be disputed that there are observations made by the present Master of the Rolls in England in the case of Wheaton v. Maple ([1893] 3 Ch. 48) which are inconsistent with the views I have stated. The plaintiff claimed an easement of light. The defendants were lessees of the Crown under a lease expiring in 1914, which they surrendered on the 5th September, 1892, and the Crown agreed to grant them a new lease, and the defendants agreed to erect a new building which they proceeded to do. The plaintiff’s house had been built in 1852, and he had enjoyed his lights against the Crown lessees for more than forty years before the action, which was brought in March, 1893, within three years after the surrender. The Court dealt with the case independently of the Prescription Act, and, secondly, under it. It was argued that a grant should be presumed from the lessee of the Crown, and the Master of the Rolls says that he is not aware of an authority for presuming as a matter of law a lost grant by a lessee for years in the case of ordinary easements, and he states that he was not prepared to introduce another fiction to support a claim to a novel prescriptive right, and further on he refers with approval to Brightv. Walker (l C.M. & R. 211), as establishing that the Act had not created an easement for a limited time only, or available only against particular owners or occupiers of the servient tenement, and the observations of A.L. Smith, L.J. are to the same effect.
Apparently, the Master of the Rolls would, if Beggan v. McDonald (2 L.R. Ir.
560) were before him, have taken the same view as in that case Fitzgerald, B. did in the Court of Exchequer; but it seems to me obvious that these observations are inconsistent with two decisions which I consider binding on me, viz. Deeble v. Linehan (12 I.C.L.R. 1), and, in its result, Beggan v. McDonald (2 L.R. Ir. 560). I have already stated the reasons which induce me to think that it makes no difference in the case that the right is claimed between two tenants holding under the same landlord. Such a right could not be established under the doctrine of prescription proper, as this would lead to a reversioner getting a right against himself; but if the qualified right can exist when it is claimed by one tenant against another, in the case of tenants holding under different landlords, the doctrine of Gayford v. Moffat (L.R. 4 Ch. 133) is not invaded by the qualified right being established in favour of one tenant against his co-tenant, both holding under the same landlord. It can exist admittedly in the case of an express grant in such a case. We have to decide whether we will over-rule the view of the Court of Exchequer in Timmons v. Hewitt (22 L.R. Ir. 627). If we are bound in point of law to do so we must follow Bright v. Walker (1 C.M. & R. 211) in this respect; but such a result would be in this country extremely inconvenient, and I am glad to be able to come toa conclusion in accordance with the decision of the Court of Exchequer in
Timmons v. Hewitt (22 L.R. Ir. 627) and the result of O’Kane v. O’Kane (30 L.R. Ir. 489) in the Court of Queen’s Bench that a lost grant of a right to water or a right of way may still be presumed from enjoyment of twenty years between two tenants, whether holding under the same landlord or not.
Holmes L.J.:
We are confronted at the threshold of this case with the question whether it is legally possible to presume a lost grant of an easement by a lessee, where the only evidence is user as of right during twenty years of his term, and where it is practically certain that no such grant was actually made.
If this question had been raised before the Judge of Assize or the Queen’s Bench Division, those Courts would doubtless have held that they were bound to follow the decision in Timmons v. Hewitt (22 L.R. Ir. 627); and during the discussion before us, I was under the impression that we were also in the fortunate position of having the point ruled for us by a coercive authority. I did not notice until after the argument had closed that the case of Deeble v. Linehan (12 I.C.L.R. 1), although it was heard in both the Common Pleas and the Exchequer Chamber after the Prescription Act had been applied to Ireland, had been tried some months before that event, and consequently was determined under the old law. I am not aware that the question has been since decided either in this Court, or in any Irish Court of co-ordinate jurisdiction. It was probably argued on the appeal in Timmons v. Hewitt (22 L.R. Ir. 627), but there is no full report of the judgment, and I understand it was decided on other grounds. This therefore is, as far as I know, the first occasion on which an appellate tribunal in this country is called on to form an opinion on a question the importance of which in relation to the enjoyment of landed property in Ireland it would be impossible to exaggerate.
There is I think, no room for doubt as to the state of the law before the Prescription Act. To establish a prescriptive right to an easement, it was necessary to show user extending over the full period of legal memory. Such user was inferred where it had continued as long as living memory went back; but once the beginning of the user was shown, prescription as the foundation of the alleged right failed. It was to meet the manifest inconvenience of this doctrine that the legal fiction of a lost grant was invented. The Courts laid down that the same kind of user, which, if it had existed during legal memory, would have established a right by prescription would, if it had continued for twenty years, afford grounds for presuming that it originated in a grant subsequently lost. It was never necessary to have evidence ofa grant in fact. In most cases, it was recognized that the grant was purely imaginary. Formerly Judges were in the habit of advising juries that they were at liberty to presume it without actually directing them to do so; but in later times it has been laid down that it is the duty of juries to make the presumption, if they are satisfied that there has been what is called ‘user as of right’ for twenty years.
It was part of the common law doctrine of prescription that the fee must be bound. This indeed was almost a necessary consequence from the immemorial user, which was its foundation. User going beyond legal memory would have begun previous to all existing interests; and if it bound the lands at all, it must bind every estate therein.
The same consequence does not logically follow from the doctrine of lost grant. If an owner in fee from evidence of user be presumed to have made an imaginary deed binding the inheritance, which, if it were a real instrument, could not have existed thirty years ago, there seems to be no good reason for not presuming under similar circumstances that a lessee had made an imaginary deed binding his lease hold interest. Accordingly we find it, as I believe, settled law that before the Prescription Act a non-existing grant by a termor might be presumed. Deeble v. Linehan (12 I.C.L.R. 1), a case in the Irish Exchequer Chamber, which, in my opinion, this Court is bound to follow, depends entirely upon this proposition; and the point actually decided therein was that the Judge who tried the case was wrong in telling the jury that they must find in order to give a verdict for the defendant that a deed had been actually executed by the termor as a matter of fact. In Bright
v. Walker (1 C.M. & R. 211), Baron Parke said that, ‘Before the statute this possession’ i.e. possession of a right of way for twenty years during a lease, ‘would have been evidence to support a plea or claim by a non-existing grant from the termor in the locus in quo to the termor under whom the plaintiff claims.’
As far as I am able to form an opinion this was accepted law in England as well as in Ireland. At all events, since Deeble v. Linehan (12 I.C.L.R. 1) no Irish Court can reject it, and we have only to consider whether it has been affected by the Prescription Act.
In answering this question, it is necessary to refer to the language of the Legisla ture and to subsequent judicial authority; but before doing so, I desire to point out again that the two methods of establishing a right to an easement to which I have referred, differ in their origin, character, and incidents. The first, to which the name of prescription was especially attached seems to have been coeval with our Common Law. Although the right that springs from it presupposes a grant, or something equivalent to a grant, the element of grant does not enter into its legal conception or definition. Its foundation is enjoyment from the time of King Richard the First, and when once established it is absolute and indefeasible. The second has been often referred to, and denounced as a modern instance of judge made law; and it seems to have been first heard of during the eighteenth century. Its admitted object was to supply a legal basis for rights other than the common law doctrine of prescription; and those rights might have been conditional on the continuance, or limited to the duration, of particular estates in the lands over which they were to be exercised.
There was one feature common to both methods. Each depended on a fiction. It has been said by some Judges that it is scandalous to require a jury to find the loss of a deed that has never existed. To my mind, it is not more scandalous than to ask a jury to affirm a claim or defence founded on prescription at common law. In the majority of cases it is impossible that an easement could have been enjoyed for the full period of legal memory. Legal anomalies of this kind might, perhaps, be corrected, but there is no scandal involved in them. A fiction, recognised by and incorporated with the law, ceases to be a fiction. It then becomes the formal mode of expressing a reality; and it is this reality – such as user, as long as living memory goes back, or user for twenty years before action – that is affirmed by the jury. Still, in 1832 there was ample room for improvement in this branch of our jurispru dence. If the legislative reformer of that year had succeeded in defining, with precision, the extent and nature both of the user capable of conferring a right, and of the right capable of being thus conferred, he would have been a public benefac tor. Perhaps his aim was less ambitious; but whatever was his object, the result has been of little practical value. It is, however, no part of my duty to criticise the Prescription Act as a whole. I am concerned with only one of the perplexities that followed it, namely whether it altered or modified the doctrine of lost grant, and I have only referred to its general character for the purpose of showing that it does not purport to be a code, and only deals with a comparatively small portion of the law of easements.
The title of the Act describes its object as ‘shortening the time of prescription in certain cases.’ Assuming that the word ‘prescription’ is used here generally and in its widest sense, the cases referred to do not include those of lost grant, for the period of user for twenty years, upon which this presumption was founded is the shortest period mentioned in the statute. The preamble refers exclusively to the inconvenience arising from the legal meaning attached to the expression, ‘time immemorial,’ whereby title to what has been long enjoyed is sometimes defeated by showing the commencement of such enjoyment. The first and second sections which, with the third, embody the substance of the new legislation, seem to be framed with the special object of leaving a litigant all the means which he therefore possessed of establishing title by user, while giving him, in certain cases additional facilities. Each of these sections relates to a ‘claim which may be lawfully made at the common law by custom, prescription, or grant.’ These words are not technically appropriate to a claim founded on the modern doctrine of lost grant, which Lord Blackburn says must have originated after 1623, and which he is unable to trace to an earlier date than 1761 (Angus v. Dalton, 6 App. Cas. 812). Moreover the enactments thus introduced – namely, that no such claim, as aforesaid, after there has been actual enjoyment of the matter claimed for thirty years under the first section, or twenty years under the second, shall be defeated or destroyed by showing only that it was first enjoyed prior to these respective periods – would not be relevant to a claim, one of the essential features of which was that it could not be defeated by merely showing that the user relied on began within legal memory, provided that it had continued for twenty years.
The inference from these provisions, as well as from the other sections, is that the statute is confined to amending the common law of prescription, and that this is done by giving a statutory mode of prescription in addition to the methods than existing for establishing rights by evidence of enjoyment. In Aynsley v. Glover (L.R. 10 Ch. App. 283), Mellish, L.J., having referred during the argument to the every day practise of pleading – 1, enjoyment for twenty years before action; 2, enjoyment for forty years before action; 3, enjoyment from time immemorial; and 4, lost grant – says in his judgment: ‘The statute 2 & 3 Wm. 4, c. 71 has not, I apprehend, taken away any of the modes of claiming easements which existed before the statute.’ If this be law (and it forms the ratio decidendi in the case), it is decisive of the question now under consideration in a Court bound by the decision in Deeble v. Linehan (12 I.C.L.R. 1).
There is, however, the earlier case of Bright v. Walker (l C.M. & R. 211), an authority always referred to in this connexion, and one which cannot be ignored in any discussion of the subject. There the question of a right of way arose between two leaseholders under a bishop. I gather from Baron Parke’s judgment that, prior to the Act, the owner of the tenement would, or might, in the same state of facts have been held entitled to the right claimed over the servient tenement during the residue of the lessee’s interest therein; but the Court decided that as the law stood after the statute, such a claim could not be sustained. Now, in so far as the plaintiff’s alleged right, based, be it observed, on an enjoyment for twenty years, depended on the recently passed Prescription Act, I am not to be understood as casting any doubt on this decision. To this extent it has been approved of by subsequent judicial critics, and can be supported by the very persuasive reasoning. But the judgment goes much further than this, for it lays down that the qualified right, which before the statute might have arisen from the presumption ofa lost grant by one termor to the other, could no longer be inferred from enjoyment for twenty years. ‘Since the statute,’ says Baron Parke, ‘such a qualified right is not given by an enjoyment for twenty years, for in the first place the statute is for shortening the time of prescription, and if the periods mentioned in it are to be deemed new times of prescription, it must have been intended that the enjoyment for these periods should give a good title against all, for titles by immemorial prescription are absolute and valid against all. They are such as absolutely bind the fee in the land, and in the next place the statute nowhere contains any intimation that there may be different classes of rights, qualified and absolute, valid as to some
persons, and invalid as to others.’
Although the second of these propositions is inconsistent with the judgment of this Court in Beggan v. McDonald (2 L.R. Ir. 560), I am of opinion that if the passage quoted had been confined to a claim under the Prescription Act, based on twenty years’ user, it is an accurate statement of the law; but there appears to me to bea manifest fallacy in assuming that the new terms of prescription were to supersede all the former methods by which rights could be acquired by user.I have already endeavoured to show that this is not the true construction of the statute, and I have pointed out that the contrary view was afterwards taken by Mellish, L.J., and James, L.J., in Ayns/ey v. Glover (L.R. 10 Ch. App. 283).
I now proceed to consider to what extent Bright v. Walker (l C.M. & R. 211), in
so far as it relates to the doctrine of lost grant, has been followed in subsequent practice and by later authority. The logical consequence of Baron Parke’s judgment was to banish from our law the fiction of lost grant. But pleadings with which we have been long familiar show that this result has not followed; and it is – at least in Ireland – as often acted on at the present day as at any period of the century and
a-half of its legal history.
There has been, I think, no subject in modern times that has received fuller
judicial consideration than this question of lost grant in the case of Angus v. Dalton (3 Q.B.D. 85) – first in 1877 by three Judges in the Queen’s Bench Division, again in 1878 by the Court of Appeal (4 Q.B.D. 162), consisting also of three members, and finally in 1881 by the House of Lords, assisted by seven Judges. The case gave rise to great difference of opinion, to which it is unnecessary for me to refer; butI have not been able to find in it the trace of suggestion that the doctrine of lost grant had been affected by the Prescription Act. It is referred to by every Judge. Its introduction into our jurisprudence by judicial authority at a comparatively recent time, is condemned by some of the Judges and defended by others; but all agree that it had taken a place in English law, from which it could only be removed by legislation. The very matter with which I am now dealing, although not strictly relevant to the points in controversy, is not passed over. Cockburn, C.J. (3 Q.B.D.
p. 119), after using some of the arguments I have ventured to offer, says, ‘The only conclusion, therefore, at which I can arrive, is that as regards the effect of twenty years’ user in enjoyment in the matter of easements by presumed grant, the law stands exactly as it did before the passing of the Act.’ Cotton, L. J. (4 Q.B.D.
p. 185), referring to the means by which an easement is capable of being acquired independently of the Prescription Act says, ‘They are either an enjoyment beyond living memory, from which in the absence of evidence to the contrary, enjoyment before the time of legal memory would be presumed, or by enjoyment for sucha time as would be sufficient in the absence of evidence to the contrary to justifya presumption of a modern grant that has been lost.’ Lord Blackburn is as distinct as Cockburn, C.J. (6 App. Cas. 814). He says, ‘Lord Tenterden’s Act, so far as it went, made that a direct bar, which was before only a bar by the intervention ofa 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 is not done: see Aynsley v. Glover (L.R. 10 Ch. App. 283). I think the law, as far as regards this subject, is the same as it was before the Act was passed.’
The only authority subsequent to Bright v. Walker (1 C.M. & R 211) that adopts in its entirety the reasoning in that case, is Wheaton v. Maple and Co. ([1863] 3 Ch. 48, p. 63). Speaking of a lost grant from a lessee, Lindley, L.J. says, ‘Although such a grant commensurate with his lease might be inferred as a fact, if there was evidence to justify the inference, there is no legal presumption as distinguished from an inference in fact, in favour of such grant.’ The action was one for obstruct ing ancient lights, and in an earlier part of his judgment, the Lord Justice says in reply to the argument, that a grant of the easement ought to be presumed, ‘no such grant is required to account for the state of things which exists, nor is any fiction or presumption necessary to render legal conduct of the plaintiff which would have been illegal without it. The plaintiff has simply been enjoying his own property as he was perfectly entitled to do.’ This proposition got rid of the very foundation for the presumption; and when the Lord Justice afterwards referred to this branch of the law, he naturally deals with it somewhat perfunctorily. For example, he says, ‘I am not aware of any authority for presuming as a matter of law, a lost grant by a lessee for years in the case of ordinary easements, and I am not prepared to introduce another fiction to support a claim to a novel prescriptive right.’ He here seems to have forgotten that according to Brightv. Walker (1 C.M. & R. 211) itself, this was the law before the Prescription Act; and he had probably never heard of Deeble v. Linehan (12 I.C.L.R. 1), or Timmons v. Hewitt (22 L.R. Ir. 627). Indeed, much that is said both by him and the other Judges cannot, as far as I can see, be reconciled with Beggan v. M’Donald (2 L.R. Ir. 560) in this country, and this naturally weakens its authority as far as we are concerned.
I now turn from England to Ireland, where either from the mode in which land is held, or from the character of the people, there is probably more litigation about easements than in any other part of the empire. The current of decision in this country has not been favourable to the view taken in Brightv. Walker (l C.M. & R.
211) of the effect of the Prescription Act upon the doctrine of lost grant. That statute became law in Ireland on the 1st January, 1859, and in 1861 the subject was exhaustively treated by Pigot, C. B., in Wilson v. Stanley (12 I.C.L.R. 346). He was evidently unable to follow the reasoning in Brightv. Walker (1 C.M. & R. 211), but sitting in a Court of co-ordinate jurisdiction, he felt bound by it as an authority. At the same time he criticised it very freely. He pointed out that while even in England the Prescription Act as therein expounded had materially abridged the rights previously resulting from long enjoyment, the change in the law would have a far more serious effect in Ireland in consequence of the different circumstances of the two countries. If this were so in 1861, how much more reason is there for repeating it now when through intervening legislation the ordinary Irish agricultural tenant, although presumably holding for a term of years, enjoys practically fixity of tenure? The inconvenience and confusion that must have arisen in Ireland, if Baron Parke’s propositions had been accepted, led to their being often disregarded in practice. Actions relating to easements were especially common on the circuit of which I was a member. They were generally small cases, which would not be disposed of in the Civil Bill Court under its extended jurisdiction; and although counsel asked for a direction on the authority of Bright v. Walker (l C.M. & R.
211) where it applied, as it often did, I never remember it given. The verdict of the jury settled them, and the litigants had not the means or inclination to bring further. Love v. Taylor (Unreported) was in its time a well-known case, famous for the sturdy spirit of both plaintiff and defendant. I held a brief in it at six Assizes, at three of which it was tried out; but the jury always disagreed. It was tried again on either one or two occasions after I had left the circuit, with the same result. It was known to counsel on both sides that unless the passages I have quoted from Bright
v. Walker (1 C.M. & R. 211) were disregarded, there must be judgment for the plaintiff; but successive Judges, although strongly pressed for a direction at the plaintiff’s risk, declined to give it. At length the late Lord Justice Barry announced his intention to direct, whereupon the parties, finding that the battle would be transferred to another field, agreed to refer the whole subject in dispute to arbit ration, which resulted, I believe, in a bad award. I have often thought that if judges and counsel had felt any real confidence in the soundness of the law laid down in Brightv. Walker (1 C.M. & R. 211), this long and expensive litigation would have been avoided, or curtailed. At length the very point now before us arose in the Exchequer Division in Timmons v. Hewitt (22 L.R. Ir. 627), under somewhat peculiar circumstances. The action was tried by me; and the question of lost grant was not discussed at the trial. The experience of Love v. Taylor (Unreported) had led me, when hearing civil bill appeals, or sitting at Nisi Prius, to follow rigidly Bright v. Walker (1 C.M. & R. 211), except in such points as are plainly inconsis tent with later authorities. The counsel were aware that I should have declined to framea question for the jury based on the doctrine of lost grant, and this was probably involved in my refusal to have a finding as to user for twenty years. My first question was put in pursuance of the judgment in Fahey v. Dwyer (4 L.R. Ir. 271). My second, which is not connected with anything dealt with in Bright v. Walker (1 C.M. & R. 211), would have disposed of the case if an answer to it in the affirmative could have been supported. But for reasons to which I need not refer, it was very difficult to support an affirmative answer; and I have no doubt that it was this which led counsel to press so strongly, and the Court to consider so fully, the first question. It is clear that the Exchequer Division had the gravest doubt as to Fahey v. Dwyer (4 L.R. Ir. 271) doubts which I fully share; and hence it made use of the first finding to support a proposition which it laid down in the following terms: ‘Where two parcels of land are held under a common landlord by tenancies, each of which has existed for upwards of twenty years, it is competent for the jury to infer, from twenty years’ enjoyment as of right and without interruption of an easement claimed by the owner of one of the tenements over the land of the other tenement,a grant by deed from one tenant to the other tenant of such easement.’ The Divisional Court made this principle a distinct ground for upholding the verdict, although it was also of opinion that the answer to the second question
would have supported it. This Court, on appeal, upheld the judgment; but I believe, in doing so, it neither affirmed nor dissented from the propositionI have
quoted.
In Timmons v. Hewitt (22 I.R. Ir. 627) there was no finding of a lost grant by the
jury; and asI have already explained, there was no intention to put sucha question. In the circumstances of that case, this point was merely formal. Having found the user, the jury ought to have presumed a lost grant, and would undoubtedly have done so, if the law had been explained to them. I have no doubt, however, that the proper course is to submit to the jury a definite question on the subject, as was done in the present case by the Chief Baron. The presumption is not ‘juris et de jure’; and it may be rebutted. It ought probably to be made in all cases where the only relevant circumstance proved is uninterrupted user for twenty years before action; and it cannot be rebutted by merely showing that in point of fact no grant was executed. In most, if not in all, cases the fact that would rebut the presumption would also show that the ‘user’ had not been of right; but it is always desirable to have the question submitted to the jury in precise form, accompanied with such an explanation of the law as is appropriate to the circumstances of the case.
Precisely the same question as was decided in Timmons v. Hewitt (22 LR. Ir. 627) arose in O’Kane v. O’Kane (20 L.R. Ir. 489). There the judgment of the Court was based on the course of the trial; but the Lord Chief Justice speaking apparently for his colleagues as well as himself, expresses a very definite opinion. He says: ‘We do not formally decide whether one tenant can or cannot confer upon another such a right of way by grant; but we do not see why a tenant from year to year should not be able to grant such a right as long as his tenancy lasted. He could, in my opinion, confer by express grant such a right as long as his tenancy subsisted; and as to the doctrine of lost grant, I consider it a very useful one, and I think this case is an example of the salutary effects of this fiction of a lost grant by which a state of things which has existed uninterruptedly for a long series of years can be validated.’ He then quotes with approbation a passage from the judgment of Lawson, J., in Tennent v. Neill (I.R. 5 C.L. p. 439), in which the Judge expresses his opinion that the doctrine is not to be limited, but on the contrary is to be extended by the
Courts, and points out that it is not necessary that the jury should believe, as a matter of fact, that such grant was executed.
For the last ten years the law as thus expounded has been acted on without challenge in every Assize Court in Ireland, and even on the present occasion Serjeant Dodd told us that he argued against it with the greatest reluctance. Now that the point is to be decided for the first time by the Court of Appeal, we are obliged to make it the subject of independent consideration. While weighing with respectful deference the reasoning and opinions of the distinguished Judges who have proceeded us, and while recognizing the inconvenience and confusion that must follow from altering the rule that has been acted on by the Courts of first instance, I have sought to apply the touchstone of legal principle. Taking the law before the Prescription Act from Baron Parke’s exposition of it in Bright v. Walker (1 C.M.9 R. 211), and from the judgment of the Exchequer Chamber in Deeble v. Linehan (12 I.C.L.R. 1), I hold that in so far as that law relates to the presumption ofa lost grant, it remains unchanged. I am compelled to reject Baron Parke’s reasoning as founded on an assumption that cannot be supported, and as repugnant to the canons of construction applicable to statutes dealing with private rights. Such rights are not to be abridged by legislation relating to a different subject-matter, unless the intention to do so appears either expressly or by clear intendment, and I can find in the Prescription Act neither the one nor other. As before that statute, it was legally possible to presume from twenty years’ user as of right the grant of an easement by a termor without further evidence, I hold that it is so still, and that
therefore there was no objection in legal principle to the questions on this subject left to the jury.
Having arrived at this conclusion on the matter of law, I have little to say about the rest of the case. The Chief Baron, I have no doubt, framed the two questions relating to the grant to Pollock in the form in which they appear, in deference to the suggestion of the Lord Chief Justice in O’Kane v. O’Kane (30 L.R. Ir. 489), in which I concur; but he could not have forgotten to instruct the jury that the answer to them depended upon whether there had been user as of right for twenty years. In the case of an artificial watercourse, there could not be such user if the watercourse was in its nature temporary, or if it was not intended to be permanent. If this was not told the jury, it must have been because it was assumed on both sides that the channel made in 1861 was to be permanent. In the absence of any requisition on this subject or objection to the charge, the Court must assume that the findings on questions 1 and 2 negative the temporary theory. This being so, the verdict for the defendant must stand unless there was conclusive evidence that the present channel is temporary only. I have read the careful judgment of Mr. Justice Andrews; and it seems to me to proceed on an assumption which the jury was not bound to make. He says that although the new channel ‘was an improvement to the old drain, it was clearly of as temporary a character as the old drain, and as open to alteration or abandonment at any time.’ I could understand this if the old and new channels were field drains and nothing more; but it was open to the jury to take a different view of them. The change of channel originated doubtless in drainage improvement, but it is often part of a drainage scheme to change permanently the course of a natural stream. The water discharged by the channels was the outflow from springs which must reach the river in some way. The old course was probably permanent till it was altered; and I see no reason for the jury not concluding that the substituted one was also intended to be permanent. For some reason it was conceived that the change could not be made without the co-operation of Pollock, and it was carried out by both tenants acting in combination. The result was to send by means of a weir a portion of the water into Pollock’s land, and to discharge the remainder into the river through Hanna’s land. It is impossible now to ascertain the cause of this. Each party seemed to obtain a benefit and to incur the burden; and there is no reason for thinking that the arrangement was not regarded as final by both. The jury was the proper tribunal to decide; and this Court is not at liberty to disregard their verdict. As to the question of merger, I adopt the view of Kenny, J., and, like him, I do not think it necessary to consider the 8th and 9th sections of the Purchase of Land (Ireland) Act, 1885. These are provisions of great importance; but as they do not form the ground of my judgment, I have formed no final opinion as to their effect. Having taken the foregoing view of the findings of the jury – a view which, until this morning, I believed was held by the majority of the Court – I could not have avoided considering the legal questions to which the greater part of my observa tions has been directed. I may, however, add that I should not have felt myself relieved from this duty, even if I had agreed with my brethren in their conclusion as to the evidence and verdict. It would, I think, have been a matter for regret if this Court had for the second time refrained from expressing its opinion upon such an important legal problem as that raised in Timmons v. Hewitt (22 L.R. Ir. 627), and in the present case.
Ward v Kirkland
[1961] Ch 194, Ungoed-Thomas J
The next ground upon which the claim is based by the plaintiff is prescription. This turns, of course, on sections 2 and 4 of the Prescription Act, 1832. [His Lordship read sections 2 and 4, and continued:]
So, the enjoyment required is for 20 years before action without submitting to or acquiescing in interruption for a year. The defendant submits that in this case there was an interruption for that period. The interruption is stated to have started in October, 1958,
and to have been submitted to or acquiesced in till May or June, 1960, and, of course, if that submission is correct, then the claim based Qll prescription is defeated. The writ was not issued until December 29, 1960, and, therefore, when the action started, there was not
20 years’ enjoyment before action without interruption which had been acquiesced in or submitted to by the plaintiff for one year, if the defendant’s submission is accepted.
It is clear that submission to or acquiescing in an interruption is more than mere interruption itself. In Davies v Du Paver, Birkett LJ stated that such submission or acquiescence was a state of mind. In this case, it is clear that there was no submission or acquiescence in October, 1958. At that time, the plaintiff attempted to enter the defendant’s yard for the purpose of maintaining his wall. She refused him entry. His son-in-law was with him and used certain words which she chose to interpret as a request for permission and stated that as he had asked for permission, she would let him in to do the wall. The occasion was heated, and it is perfectly clear that the plaintiff did not go into the property and was not allowed into the property, because he himself was not prepared to go in by permission but was maintaining that he was entitled as of right to do the maintenance work to his wall.
Graham v Philcox
[1984] QB 747 (CA)
PURCHAS LJ: The only change that has now been made is that one dwelling unit is now housed where two dwelling units were previously housed. It does not follow of necessity that the ‘de facto’ user of the right of way made by the members of the unit now occupying both parts of the coach house would be more than the user of that right to which the occupier personally and/or his servants, invitees and licensees would have been entitled as occupier of the dominant tenement confined to the first floor. Indeed, it is not difficult to conceive of circumstances in which it might bea good dealless. This change is entirely different from the dramatic structural changes, changes of use considered in the cases to which reference has already been made; and falls far more
within the concept of the alteration to the dominant tenement which was held not to have prejudiced the right to use the coal shed in Wrightv Macadam [1949]2 KB 744, to which May LJ has already referred and upon which Mr Reid relied in support of his submission that mere alteration to the extent of the dominant tenement was not
effective to destroy an easement or right Thright of way having been created by
direct grant and its use continuing even though under statutory protection at the time of the conveyance, the use and enjoyment of that easement fell within the terms of section 62 of the Act and the judge was in error in holding that it did not. Nor, for the reasons I have already given, can I accept the submissions made by Mr Godfrey that by enlarging the physical dimensions or indeed altering the nature of the dominant tenement from two individual flats to one dwelling house has the easement, right or advantage been destroyed. The occupier of the dominant tenement, however, will be and will remain subject to the rules requiring that the character and extent of the burden imposed upon the servient tenement must not be enlarged. For want of a better definition, this burden must be said to be commensurate with the reasonable user of the means of access by the occupier, his servants, agents, invitees or licensees occupying a single dwelling unit. If by any change in the nature of his enjoyment of the dominant tenement the occupier thereof increases the burden upon the servient tenement beyond this, then he will be liable to the consequences of excessive user which may be imposed upon any person enjoying an easement, right or benefit of this kind.
Celsteel Ltd v Alton House Holdings Ltd
[1985] 1 WLR 204 (ChD)
SCOTT J: It has been settled law for a long time that an interference with a private right of way is not, per se, an actionable interference. In Clifford v Hoare (1874) LR 9 CP 362 a vehicular right of way had been granted over a roadway 40 feet wide. The defendant erected a building which encroached 2 feet into the roadway. It was held that this encroachment did not represent an actionable interference with the right of way. The issue was treated as depending basically on the construction of the grant. What quality of enjoyment of the right of way had been intended to be granted? Lord Coleridge CJ answered this question by saying that ‘the intention was to grant the plaintiff an easement only, the reasonable use and enjoyment of an ascertained way’ (at 370). Since the encroachment did not interfere with the reasonable use and enjoyment of the way, it did not represent an actionable interference. Clifford v Hoare was a case where the interference had resulted in a reduction of the width of the way by a trivial amount. In Pettey v Parsons [1914] 2 Ch 653 the issue was whether a gate across a right of way represented an actionable interference. In the view of the Court of Appeal the gate would not do so provided it were kept open during business hours. It is to be noted that the servient owner was contending for the right to maintain a closed gate across the way. Lord Cozens-Hardy MR said that an interference ‘is not actionable unless it is substantial’ (at 662) And in Keefe v Amor [1964] 2 All ER 517 at 520, [1965] 1 QB
334 at 346 Russell LJ described as actionable ‘such obstacles as impede the user of the strip for such exercise of the right granted as from time to time is reasonably required by the dominant tenant’.
express grant
McManus v Cooke
(1887) 35 ChD 681 (ChD)
KAY J: These authorities seem to me to establish the following propositions: (I) The doctrine of part-performanceof a parol agreement, which enables proof of it to be given notwithstanding the Statute of Frauds, though principally applied in the case of contracts for the sale or purchase of land, or for the acquisition of an interest in land, has not been confined to those cases. (2) Probably it would be more accurate to say it applies to all cases in which a Court of Equity would entertain a suit for specific performance if the alleged contract had been in writing. (3) The most obvious case of part-performance is where the defendant is in possession of land of the plaintiff under the parol agreement. (4) The reason for the rule is that where the defendant has stood by and allowed the plaintiff to fulfil his l?art of the contract, it would be fraudulent to set up the statute. (5) But this reason applies wherever the defendant has obtained and is in possession of some substantial advantage under a parol agreement which, if in writing, would be such as the Court wou1d direct to be specifically performed. (6) The doctrine applies to a parol agreement for an easement, though no interest in land is intended to be acquired.
I have no doubt that the present case comes within the principle of these decisions. I find the Defendant in possession of an easement of light over the Plaintiff’s land by
reason of the Plaintiff having taken down’ and re-erected at a less height a boundary wall partly on the Defendant’s and partly on the Plaintiff’s land. By the same act the Defendant has been put in possession of a larger space on his side of the wall; the new wall erected being much thinner than the old one.
These acts could not have been done by the Plaintiff and these advantages could not have been obtained by the Defendant without some agreement between them. According to Morphett v Jones 1 Swans 172 the Court is bound to inquire what that agreement was. I find it to be one by which the Plaintiff was to have, as his part of the arrangement, a better light to his skylight over the Defendant’s land, and this was to be secured to him by the construction, in an agreed position, of a lean-to skylight on the Defendant’s side.
The Defendant having obtained all the advantages which this agreement was intended to give him, it would be a fraud on his part to refuse to carry out his part of the agreement, and to resist an attempt to compel him to do so by insisting on the Statute of Frauds.
Therefore, if the statute applies-as in my opinion it should-the equitable rule in cases of part-performance applies also.
Wrightv Macadam
[1949] 2 KB 744
JENKINS LJ: The predecessor of s. 62 of the Act of 1925, in the shape of s. 6 of the Act of 1881 has been the subject of a good deal of judicial discussion, and I think the effect of the cases can be thus summarized. First, the section is not confined to rights which, as a matter of law, were so annexed or appurtenant to the property conveyed at the time of the conveyance as to make them actual legally enforceable rights. Thus, on the severance of a piece of land in common ownership, the quasi easements de facto enjoyed in respect of it by one part of the land over another will pass although, of course, as a matter of law, no man can have a right appendant or appurtenant to one part of his property exerciseable by him over the other part of his property. Secondly, the right, in order to pass, need not be one to which the owner or occupier for the time being of the land has had what may be described as a permanent title. A right enjoyed merely by permission is enough. The leading authority for that proposition is the case of International Tea Stores Co. v Hobbs [t903] 2 Ch 165. That was a decision of Sir George Farwell as a judge of first instance. It was a case in which the defendant, who owned two houses, let one of them for business purposes and there had been a practice of giving permission to the successive managers of the property let to pass and re-pass with their servants and so forth across’ a yard which was part of the property and remained in the defendant’s occupation. The part of the property which had been let was later sold to the tenants, nothing beipg said in the conveyance about the right of way. The purchasers claimed to exercise the right of way by virtue of s. 6 of the Act of 1881. That claim was disputed, and th’e point was taken that it could not be a right which would pass under the implied general words inasmuch as it was only precariously enjoyed. The learned judge held that the fact that the way was permissive only was irrelevant for this purpose, and that by virtue of s. 6 of the Act of 1881 the grant included a corresponding right of way in fee simple. Dealing with the question of licence or permission, the learned judge said this: ‘Unless I am prepared to say that in no case can a tenant obtain under the Conveyancing Act, 1881, a right of way unless he has enjoyed it as of right, I must hold in this case that the fact of licence makes no difference ‘
Thnext proposition deducible from the cases is the one laid down in Burrows v Lang [1901] 2 Ch 502, which has been referred to in some of the passages I have already read. It is that the right in question must be a right known to the law. In Burrows v Lang [1901] 2 Ch 502 it was held that a so-called right to take, for the purposes of watering cattle, so much water, if any, as might happen to be left in an artificial watercourse after the owner of the watercourse had taken what he required for his own purposes, was not such a right. A certain amount of confusion has been introduced into the discussion on this aspect of the case by the circumstances that some of the learned judges have used the word ‘precarious’ in describing rights of a kind unknown to the law, and in particular the expression was so used by Farwell J in the case of Burrows v Lang [1901] 2 Ch 502; but in this context the precariousness enters into the character of the right as distinct from the title to the right. The right is precarious in the sense that, to take the example of the surplus water, there may be no water at all, d that the right is in itself liable to be defeated in that way. It is necessary to keep clearly in mind the distinction between ‘precariousness’ in the sense in which it is used in relation to quasi rights of that description, and precariousness of title as used in relation to a permissively exercised right. For the purposes of s. 62, it is only necessary that the right should be one capable of being granted at law, or, in other words, a right known to the law. !fit is a right of that description it matters not, as the International Tea Stores case shows,
that it has been in fact enjoyed by permission only. The reason for that is clear, for, on the assumption that the right is included or imported into e parcels of the conveyance by virtue of s. 62, the grant under the conveyance 1es what one may call the defect in title, and substitutes a new title based on the grant….
Next, the right was, as I understand it, a right to use the coal shed in question for the
purpose of storing such coal as might be required for the domestic purposes of the flat. In my judgment that is a right or easement which the law will clearly recognize, and it isa right or easement of a kind which could readily be included in a lease or conveyance by the insertion of appropriate words in the parcels. This, therefore, is not a case in which a title to a right unknown to the law is claimed by virtue of s. 62. Nor is ita case in which it can be said to have been in the contemplation of the parties that the enjoyment of the right should be purely temporary. No limit was set as to the time during which the coal shed could continue to be used. Mr Macadam simply gave his permission; that permission was acted on; and the use of the coalshed in fact went on down to August 28, 1943, and thereafter down to 1947. Therefore, applying to the facts of the present case the principles which seem to be deducible from the authorities, the conclusion to which I have come is that the right to use the coal shed was at the date of the letting of August 28, 1943, a right enjoyed with the top floor flat within the meaning ofs. 62 of the Law of Property Act, 1925, with the result that (as no contrary intention was expressed in the document) the right in question must be regarded as having passed by virtue of that letting, just as it would have passed if it had been mentioned in express terms in cl. 1, which sets out the subject-matter of the lease.
. . . In my judgment the right must be regarded as carrying with it the necessary
means of access, and it must be assumed that at all times down to August 28, 1943, Mrs Wright enjoyed the use of the coal shed together with the necessary access to it and from
it.
Oxfordshire County Council and Others,
Ex Parte Sunningwell Parish Council, R v.
[1999] UKHL 28; [2000] 1 AC 335; [1999] 3 ALL ER 385; [1999] 3 WLR 160 (24th June, 1999)
HOUSE OF LORDS
Lord Browne-Wilkinson Lord Steyn Lord Hoffmann Lord Hobhouse of Wood-borough Lord Millett
My Lords,
I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Hoffmann. I agree with it and for the reasons which he gives would allow the appeal and direct the Oxfordshire County Council to register the glebe as a village green.
LORD STEYN
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. For the reasons given by him I would also make the order he proposes.
LORD HOFFMANN
My Lords,
The glebe at Sunningwell in Oxfordshire is an open space of about 10 acres near the ancient village church. It used formed part of the endowment of the Rectory. The rector let it for grazing and received the rent. On a reorganisation of church properties in 1978 it was transferred to the Oxford Diocesan Board of Finance (“the Board”). The land slopes upwards towards to the south and is crossed by a largely unfenced public footpath running south from the village towards Abingdon. Local people use the glebe for such outdoor pursuits as walking their dogs, playing family and childrens’ games, flying kites, picking blackberries, fishing in the stream and tobogganing down the slope when snow falls.
In 1994 the Board obtained planning permission to build two houses on the northern boundary of the glebe. The villagers were very much opposed. They wanted it preserved as an open space. The parish council applied to the County Council to register the glebe as a town or village green under the Commons Registration Act 1965. It is unclear what rights, if any, registration would confer upon the villagers. The Act is silent on the point. But registration would prevent the proposed development because by section 29 of the Commons Act 1876 encroachment on or inclosure of a town or village green is deemed to be a public nuisance.
Section 22(1) of the Act of 1965 contains a three-part definition of a town or village green. They are usually called classes a, b and c. I shall use the same terminology.
“[a] land which has been allotted by or under any Act for the exercise or recreation of the inhabitants of any locality or [b] on which the inhabitants of any locality have a customary right to indulge in lawful sports and pastimes or [c] on which the inhabitants of any locality have indulged in such sports and pastimes as of right for not less than 20 years.”
Class a includes land which was allotted for exercise and recreation by Act of Parliament or the Inclosure Commissioners when making an order for the inclosure of a common under the Inclosure Act 1845. Before 1845, when commons were inclosed under private Acts of Parliament, it was common for the Act itself to set aside some land for this purpose. There is no suggestion that the glebe was so allotted and the parish council do not rely upon class a. Class b refers to land which by immemorial custom the local inhabitants are entitled to use for sports and pastimes. This is the traditional village green with its memories of maypole dancing, cricket and warm beer. Immemorial custom means in theory a custom which predates the accession of Richard I in 1189. Although, as I shall in due course explain, the law may presume a custom of such antiquity on evidence which a historian might regard as somewhat slender, the parish council do not rely upon class b. They take their stand on class c, which was first introduced by the Act of 1965 itself. It is no longer necessary to resort to fictions or presumptions about what was happening in 1189. It is sufficient that the inhabitants of the locality have in fact used the land as of right for lawful sports and pastimes for more than 20 years.
The main purpose of the Act of 1965 was to preserve and improve common land and town and village greens. It gave effect to the Report of the Royal Commission on Common Land 1955-1958 (1958) (Cmnd. 462) which emphasised the public importance of such open spaces. Some commons and greens were in danger of being encroached upon by developers because of legal and factual uncertainties about their status. Others were well established as commons or greens but there was uncertainty about who owned the soil. This made it difficult for the local people to make improvements (for example, by building a cricket pavilion). There was no one from whom they could obtain the necessary consent.
The Act of 1965 dealt with these problems by creating local registers of common land and town and village greens which recorded the rights, if any, of the commoners and the names of the owners of the land. If no one claimed ownership of a town or village green, it could be vested in the local authority. Regulations made under the Act prescribed time limits for registrations and objections and the determination of disputes by Commons Commissioners. In principle, the policy of the Act was to have a once-and-for-all nationwide inquiry into commons, common rights and town and village greens. When the process had been completed, the register was conclusive. By section 2(2), no land capable of being registered under the Act was to be deemed to be common land or a town or village green unless so registered.
In the case of greens in classes a or b, this meant that unless they were registered within the prescribed time-limit, they could not be registered as such thereafter. (There is a question about whether non-registration of a class a green also extinguished the prior statutory rights of exercise and recreation, but that need not detain us now.) But a class c green could come into existence upon the expiry of any period of 20 years’ user. This might be after the original registration period had expired. Section 13 therefore provided for the amendment of the register in various situations including where “(b) any land becomes common land or a town or village green.” The Sunningwell Parish Council applied to the Oxfordshire County Council, as registration authority, for an amendment to add the glebe to the register on the ground that it had become a village green by 20 years’ user ending on 1 January 1994.
The Board objected to the application. The regulations made under section 13 prescribe no procedure for resolving disputes over applications for amendment. The jurisdiction of the Commons Commissioners was limited to disputes arising out of the original applications, all of which have now been determined. The County Council was left free to decide upon its own procedure for dealing with an application to amend. It decided to hold a non-statutory public inquiry and appointed Mr. Vivian Chapman, a barrister with great experience of this branch of the law, to act as inspector. Mr. Chapman sat for two days in the Village Hall, received written and oral evidence and heard legal submissions. He submitted a report to the County Council in which he made various findings of fact which the County Council accepted. I shall refer to these later. But he recommended that the application be refused on the ground that the user of the land by the villagers had not been shown to be “as of right.” In coming to this conclusion, he followed the decision of the Court of Appeal in Reg. v. Suffolk County Council, Ex parte Steed (1996) 75 P. & C.R. 102 which held that “as of right” meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. In the present case, the witnesses all said that they thought they had the right to use the glebe. But they did not say that they thought that the right was confined to inhabitants of the village. Some thought it was a general public right and others had no views on the matter. This was held to be fatal to the application.
The parish council applied for judicial review of the County Council’s decision. Buxton J. refused leave and the application was renewed before the Court of Appeal (Lord Woolf M.R., Waller and Robert Walker L.JJ.). They decided that they were bound by Reg. v. Suffolk County Council, Ex parte Steed to dismiss the application. But they also expressed the view that your Lordships might think that that case was wrongly decided. The Court of Appeal therefore granted leave to move for judicial review, dismissed the substantive application and gave leave to appeal to your Lordships’ House.
The principal issue before your Lordships thus turns on the meaning of the words “as of right” in the definition of a green in section 22(1). The language is plainly derived from judicial pronouncements and earlier legislation on the acquisition of rights by prescription. To put the words in their context, it is therefore necessary to say something about the historical background.
Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment. But the principles upon which they achieve this result may be very different. In systems based on Roman law, prescription is regarded as one of the methods by which ownership can be acquired. The ancient Twelve Tables called it usucapio, meaning literally a taking by use. A logical consequence was that, in laying down the conditions for a valid usucapio, the law concerned itself with the nature of the property and the method by which the acquirer had obtained possession. Thus usucapio of a res sacra or res furtiva was not allowed and the acquirer had to have taken possession in good faith. The law was not concerned with the acts or state of mind of the previous owner, who was assumed to have played no part in the transaction. The periods of prescription were originally one year for moveables and two years for immoveables, but even when the periods were substantially lengthened by Justinian and some of the conditions changed, it remained in principle a method of acquiring ownership. This remains the position in civilian systems today.
English law, on the other hand, has never had a consistent theory of prescription. It did not treat long enjoyment as being a method of acquiring title. Instead, it approached the question from the other end by treating the lapse of time as either barring the remedy of the former owner or giving rise to a presumption that he had done some act which conferred a lawful title upon the person in de facto possession or enjoyment. Thus the medieval real actions for the recovery of seisin were subject to limitation by reference to various past events. In the time of Bracton the writ of right was limited from the accession of Henry I (1100). The Statute of Merton (1235) brought this date up to the accession of Henry II (1154) and the Statute of Westminster 1275 extended it to the accession of Richard I in 1189.
The judges used this date by analogy to fix the period of prescription for immemorial custom and the enjoyment of incorporeal hereditaments such as rights of way and other easements. In such cases, however, the period was being used for a different purpose. It was not to bar the remedy but to presume that enjoyment was pursuant to a right having a lawful origin. In the case of easements, this meant a presumption that there had been a grant before 1189 by the freehold owner.
As time went on, however, proof of lawful origin in this way became for practical purposes impossible. The evidence was not available. The judges filled the gap with another presumption. They instructed juries that if there was evidence of enjoyment for the period of living memory, they could presume that the right had existed since 1189. After the Limitation Act 1623, which fixed a 20 year period of limitation for the possessory actions such as ejectment, the judges treated 20 years’ enjoyment as by analogy giving rise to the presumption of enjoyment since 1189. But these presumptions arising from enjoyment for the period of living memory or for 20 years, though strong, were not conclusive. They could be rebutted by evidence that the right could not have existed in 1189; for example, because it was appurtenant to a building which had been erected since that date. In the case of easements, the resourcefulness of the judges overcame this obstacle by another presumption, this time of a lost modern grant. As Cockburn C.J. said in the course of an acerbic account of the history of the English law of prescription in Bryant v. Foot (1867) L.R. 2 Q.B. 161, 181:
“Juries were first told that from user, during living memory, or even during 20 years, they might presume a lost grant or deed; next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told, not only that they might, but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury, nor any one else, had the shadow of a belief that any such instrument had ever really existed.”
The result of these developments was that, leaving aside the cases in which it was possible to show that (a) the right could not have existed in 1189 and (b) the doctrine of lost modern grant could not be invoked, the period of 20 years’ user was in practice sufficient to establish a prescriptive or customary right. It was not an answer simply to rely upon the improbability of immemorial user or lost modern grant. As Cockburn C.J. observed, the jury were instructed that if there was no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant, they not merely could but should find the prescriptive right established. The emphasis was therefore shifted from the brute fact of the right or custom having existed in 1189 or there having been a lost grant (both of which were acknowledged to be fictions) to the quality of the 20 year user which would justify recognition of a prescriptive right or customary right. It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the licence of the owner. (For this requirement in the case of custom, see Mills v. Colchester Corporation (1867) L.R. 2 C.P. 476, 486). The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right–in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period. So in Dalton v. Angus (1881) 6 App.Cas. 740, 773, Fry J. (advising the House of Lords) was able to rationalise the law of prescription as follows:
“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.”
In the case of easements, the legislature intervened to save the consciences of judges and juries by the Prescription Act 1832, of which the short title was “An Act for shortening the Time of Prescription in certain cases.” Section 2 provided:
“No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement . . . when such way or other matter . . . shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of 20 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated. . .”
Thus in a claim under the Act, what mattered was the quality of enjoyment during the 20 year period. It had to be by a person “claiming right thereto” or, in the language of section 5 of the same Act, which dealt with the forms of pleadings, “as of right”. In Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, two years after the passing of the Act, Parke B. explained what these words meant. He said that the right must have been enjoyed “openly and in the manner that a person rightfully entitled would have used it . . . ” and not by stealth or by licence. In Gardner v. Hodgson’s Kingston Brewery Co. Ltd. [1903] AC 229, 239, Lord Lindley said that the words “as of right” were intended “to have the same meaning as the older expression nec vi nec clam nec precario.” (See also per Cotton L.J. in Earl De la Warr v. Miles (1881) 17 Ch.D. 535, 596.)
My Lords, I pass now from the law concerning the acquisition of private rights of way and other easements to the law of public rights of way. Just as the theory was that a lawful origin of private rights of way could be found only in a grant by the freehold owner, so the theory was that a lawful origin of public rights of way could be found only in a dedication to public use. As in the case of private rights, such dedication would be presumed from user since time immemorial, that is, from 1189. But the common law did not supplement this rule by fictitious grants or user which the jury were instructed to presume. In Mann v. Brodie (1881) 10 App.Cas. 378, 385-386, Lord Blackburn said:
“In England the common law period of prescription was time immemorial, and any claim by prescription was defeated by proof that the right claimed had originated within the time of legal memory, that is, since A.D. 1189. This was, no doubt, an unreasonably long period. And sometimes, by legal fictions of presumed grants, and in part, by legislation, the period required for prescription as to private rights has, in many cases, been practically cut down to a much shorter definite period . . . But this has never been done in the case of a public right of way.”
He contrasted the English law on the subject with that of Scotland, which as Lord Watson explained, at pp. 390-391 followed the Roman model:
“According to the law of Scotland, the constitution of such a right does not depend upon any legal fiction, but upon the fact of user by the public, as matter of right, continuously and without interruption, for the full period of the long prescription. Lord Stair states prescription to be a rule of ‘positive law, founded upon utility rather than equity,’ and he adds, that, in Scotland, the common rule is by the course of forty years, ‘but there must be continued possession free from interruption.’ According to Erskine, ‘positive prescription is generally defined by our lawyers as the Romans did usucapion, the acquisition of property by the continued possession of the acquirer for such a time as is described by the law to be sufficient for that purpose.'”
In England, however, user for any length of time since 1189 was merely evidence from which a dedication could be inferred. The quality of the user from which dedication could be inferred was stated in the same terms as that required for private rights of way, that is to say, nec vi nec clam nec precario. But dedication did not have to be inferred; there was no presumption of law. In Mann v. Brodie Lord Blackburn put the rationale as follows, at p. 386:
“where there has been evidence of a user by the public so long and in such a manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find the fact may find that there was a dedication by the owner whoever he was.”
My Lords, I pause to observe that Lord Blackburn does not say that there must have been evidence that individual members of the public using the way believed there had been a dedication. He is concerning himself, as the English theory required, with how the matter would have appeared to the owner of the land. The user by the public must have been, as Parke B. said in relation to private rights of way in Bright v. Walker (1834) 1 Cr. M. & R. 211, 219, “openly and in the manner that a person rightfully entitled would have used it. . .” The presumption arises, as Fry J. said of prescription generally in Dalton v. Angus (1881) 6 App.Cas. 740, 773, from acquiescence.
The difficulty in the case of public rights of way was that, despite evidence of user as of right, the jury were free to infer that this was not because there had been a dedication but because the landowner had merely tolerated such use: see Folkestone Corporation v. Brockman [1914] AC 338. On this point the law on public rights of way differed not only from Scottish law but also from that applicable to private easements. This made the outcome of cases on public rights of way very unpredictable and was one of the reasons for the passing of the Rights of Way Act 1932, of which section 1(1) provided:
“Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way. . .”
The words “actually enjoyed by the public as of right and without interruption for a full period of 20 years” are clearly an echo of the words “actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years” in section 2 of the Prescription Act 1832. Introducing the Bill into the House of Lords, Lord Buckmaster said that the purpose was to assimilate the law on public rights of way to that of private rights of way. (84 H.L. Debates (1931-32), col. 637). It therefore seems safe to assume that “as of right” in the Act of 1932 was intended to have the same meaning as those words in section 5 of the Act of 1832 and the words “claiming right thereto” in section 2 of that Act.
My Lords, this was the background to the definition of a “town or village green” in section 22(1) of the Act of 1965. At that time, there had been no legislation for customary rights equivalent to the Act of 1832 for easements or the Act of 1932 for public rights of way. Proof of a custom to use a green for lawful sports and pastimes still required an inference of fact that such a custom had existed in 1189. Judges and juries were generous in making the required inference on the basis of evidence of long user. If there was upwards of 20 years’ user, it would be presumed in the absence of evidence to show that it commenced after 1189. But the claim could still be defeated by showing that the custom could not have existed in 1189. Thus in Bryant v. Foot (1867) L.R. 2 Q.B. 161, a claim to a custom by which the rector of a parish was entitled to charge 13 shillings for performing a marriage service, although proved to have been in existence since 1808, was rejected on the ground that having regard to inflation it could not possibly have existed in the reign of Richard I. It seems to me clear that class c in the definition of a village green must have been based upon the earlier Acts and intended to exclude this kind of defence. The only difference was that it allowed for no rebuttal or exceptions. If the inhabitants of the locality had indulged in lawful sports and pastimes as of right for not less than 20 years, the land was a town or village green. But there is no reason to believe that “as of right” was intended to mean anything different from what those words meant in the Acts of 1832 and 1932.
In Steed’s case Pill L.J. also said (75 P. & C.R. 102, 111-112) that “as of right” in the Act of 1965 had the same meaning as in the Act of 1932. In holding that it required “an honest belief in a legal right to use . . . as an inhabitant . . . and not merely a member of the public” he followed dicta in three cases on the Rights of Way Act 1932 and its successor legislation, section 31(1) of the Highways Act 1980, which I must now examine.
The first was Hue v. Whiteley [1929] 1 Ch. 440, a decision of Tomlin J. before the Act of 1932. The dispute was over the existence of a public footpath on Box Hill and the judge found, at p. 444, that for 60 years people had “used the track to get to the highway and to the public bridle road as of right, on the footing that they were using a public way.” Counsel for the landowner, in reliance on Attorney-General v. Antrobus [1905] 2 Ch 188 (which concerned the tracks around Stonehenge), argued that the user should be disregarded because people used the path merely for recreation in walking on Box Hill. The judge said, at p. 445, that this made no difference:
“A man passes from one point to another believing himself to be using a public road, and the state of his mind as to his motive in passing is irrelevant. If there is evidence, as there is here, of continuous user by persons as of right (i.e., believing themselves to be exercising a public right to pass from one highway to another), there is no question such as that which arose in Attorney-General v. Antrobus.”
The decision in the case was that the reasons why people used the road were irrelevant. It was sufficient that they used it as of right. I rather doubt whether, in explaining this term parenthetically as involving a belief that they were exercising a public right, Tomlin J. meant to say more than Lord Blackburn had said in Mann v. Brodie (1881) 10 App.Cas. 378, 386, namely that they must have used it in a way which would suggest to a reasonable landowner that they believed they were exercising a public right. To require an inquiry into the subjective state of mind of the users of the road would be contrary to the whole English theory of prescription, which, as I hope I have demonstrated, depends upon evidence of acquiescence by the landowner giving rise to an inference or presumption of a prior grant or dedication. For this purpose, the actual state of mind of the road user is plainly irrelevant.
Tomlin J.’s parenthesis was picked up by the Court of Appeal in Jones v. Bates [1938] 2 All E.R. 237. The defendant asserting a right of footpath adduced overwhelming evidence of user for many years, including evidence of the plaintiff landowner’s predecessors in title that they had never stopped people from using the path because they thought it was a public right of way. The judge in the Hastings County Court nevertheless rejected this evidence as insufficient to satisfy section 1(1) of the Act of 1932. The Court of Appeal by a majority held that he must have misdirected himself on the law (there was no right of appeal on fact from a County Court) and ordered a new trial. But the case contains some observations on the law, including a valuable exposition by Scott L.J. of the background to the Act of 1932. The two majority judgments of Slesser and Scott L.JJ. both cite Tomlin J.’s parenthesis with approval. But the question of whether it is necessary to prove the subjective state of mind of users of the road in addition to the outward appearance of user did not arise and was not discussed.
Slesser L.J., at p. 241, after citing Tomlin J.’s parenthesis, went on to say that “as of right” in the Act of 1932 had the meaning which Cotton L.J. had given to those words in the Act of 1832 in Earl De la Warr v. Miles (1881) 17 Ch.D. 535, 596: “not secretly, not as acts of violence, not under permission from time to time given by the person on whose soil the acts were done.” This makes one doubt whether he was concerned with the subjective minds of the users.
Scott L.J., at p. 245 also quoted Tomlin J. with approval but went on to say:
“It is doubtless correct to say that negatively [the words ‘as of right’] import the absence of any of the three characteristics of compulsion, secrecy or licence–‘nec vi, nec clam, nec precario,’ phraseology borrowed from the law of easements–but the statute does not put on the party asserting the public right the onus of proving those negatives. . .”
Scott L.J. was concerned that the County Court judge had placed too high a burden upon the person asserting the public right. If he proved that the right had been used so as to demonstrate belief in the existence of a public right of way, that was enough. The headnote to Jones v. Bates [1938] 2 All E.R. 237 summarises the holding on this point in entirely orthodox terms:
“The words in the Rights of Way Act 1932, section 1(1), ‘actually enjoyed by the public as of right and without interruption,’ mean that the way has been used without compulsion, secrecy or licence, nec vi, nec clam, nec precario.”
Finally in Steed’s case Pill L.J. referred to his own discussion of the subject at first instance in O’Keefe v. Secretary of State for the Environment [1996] J.P.L. 42. On the basis of passages from Jones v. Bates [1938] 2 All E.R. 237 he had there expressed the view that “as of right” meant user “which was not only nec vi, nec clam, nec precario but was in the honest belief in a legal right to use.” But he rejected the further submission that the users should know the procedures by which the right had come into existence.
My Lords, in my opinion the casual and, in its context, perfectly understandable aside of Tomlin J. in Hue v. Whiteley [1929] 1 Ch. 440 has led the courts into imposing upon the time-honoured expression “as of right” a new and additional requirement of subjective belief for which there is no previous authority and which I consider to be contrary to the principles of English prescription. There is in my view an unbroken line of descent from the common law concept of nec vi, nec clam, nec precario to the term “as of right” in the Acts of 1832, 1932 and 1965. It is perhaps worth observing that when the Act of 1832 was passed, the parties to an action were not even competent witnesses and I think that Baron Parke would have been startled by the proposition that a plaintiff asserting a private right of way on the basis of his user had to prove his subjective state of mind. In the case of public rights, evidence of reputation of the existence of the right was always admissible and formed the subject of a special exception to the hearsay rule. But that is not at all the same thing as evidence of the individual states of mind of people who used the way. In the normal case, of course, outward appearance and inward belief will coincide. A person who believes he has the right to use a footpath will use it in the way in which a person having such a right would use it. But user which is apparently as of right cannot be discounted merely because, as will often be the case, many of the users over a long period were subjectively indifferent as to whether a right existed, or even had private knowledge that it did not. Where Parliament has provided for the creation of rights by 20 years’ user, it is almost inevitable that user in the earlier years will have been without any very confident belief in the existence of a legal right. But that does not mean that it must be ignored. Still less can it be ignored in a case like Steed when the users believe in the existence of a right but do not know its precise metes and bounds. In coming to this conclusion, I have been greatly assisted by Mr. J. G. Riddall’s article “A False Trail” in [1997] 61 The Conveyancer and Property Lawyer 199.
I therefore consider that Steed’s case was wrongly decided and that the County Council should not have refused to register the glebe as a village green merely because the witnesses did not depose to their belief that the right to games and pastimes attached to them as inhabitants of the village. That was the only ground upon which Mr. Chapman advised the Council to reject the application. But Miss Cameron Q.C., who appeared for the Board, submitted that it should have been rejected for other reasons as well. Although these grounds did not form the basis of any cross-appeal, your Lordships considered that rather than put the parties to the expense of further consideration by the County Council followed by further appeals, it would be convenient to consider their merits now.
The first point concerned the nature of the activities on the glebe. They showed that it had been used for solitary or family pastimes (walking, toboganning, family games) but not for anything which could properly be called a sport. Miss Cameron said that this was insufficient for two reasons. First, because the definition spoke of “sports and pastimes” and therefore, as a matter of language, pastimes were not enough. There had to be at least one sport. Secondly, because the “sports and pastimes” in class c had to be the same sports and pastimes as those in respect of which there could have been customary rights under class b and this meant that there had to be some communal element about them, such as playing cricket, shooting at butts or dancing round the maypole. I do not accept either of these arguments. As a matter of language, I think that “sports and pastimes” is not two classes of activities but a single composite class which uses two words in order to avoid arguments over whether an activity is a sport or a pastime. The law constantly uses pairs of words in this way. As long as the activity can properly be called a sport or a pastime, it falls within the composite class. As for the historical argument, I think that one must distinguish between the concept of a sport or pastime and the particular kind of sports or pastimes which people have played or enjoyed at different times in history. Thus in Fitch v. Rawling (1795) 2 H.Bl. 393, Buller J. recognised a custom to play cricket on a village green as having existed since the time of Richard I, although the game itself was unknown at the time and would have been unlawful for some centuries thereafter: see Mercer v. Denne [1904] 2 Ch. 538-539, 553. In Abercromby v. Town Commissioners of Fermoy [1900] 1 I.R. 302 the Irish Court of Appeal upheld a custom for the inhabitants of Fermoy to use a strip of land along the river for their evening passeggiata. Holmes L.J. said, at p. 314 that popular amusement took many shapes: “legal principle does not require that rights of this nature should be limited to certain ancient pastimes.” In any case, he said, the Irish had too much of a sense of humour to dance around a maypole. Class c is concerned with the creation of town and village greens after 1965 and in my opinion sports and pastimes includes those activities which would be so regarded in our own day. I agree with Carnwath J. in Reg. v. Suffolk County Council, Ex parte Steed (1995) 70 P. & C.R. 487, 503, when he said that dog walking and playing with children were, in modern life, the kind of informal recreation which may be the main function of a village green. It may be, of course, that the user is so trivial and sporadic as not to carry the outward appearance of user as of right. In the present case, however, Mr. Chapman found “abundant evidence of use of the glebe for informal recreation” which he held to be a pastime for the purposes of the Act.
This brings me conveniently to Miss Cameron’s second point, which was that the evidence of user was too broad. She said that the evidence showed that the glebe was also used by people who were not inhabitants of the village. She relied upon Hammerton v. Honey (1876) 24 W.R. 603, 604, in which Sir George Jessel M.R. said:
“if you allege a custom for certain persons to dance on a green, and you prove in support of that allegation, not only that some people danced, but that everybody else in the world who chose danced and played cricket, you have got beyond your custom.”
That was with reference to a claim to a customary right of recreation and amusement, that is to say, a class b green. Class c requires merely proof of user by “the inhabitants of any locality.” It does not say user only by the inhabitants of the locality, but I am willing to assume, without deciding, that the user should be similar to that which would have established a custom.
In my opinion, however, the findings of fact are sufficient to satisfy this test. It is true that people from outside the village regularly used the footpath. It formed part of a network of Oxfordshire Circular Walks. But there was little evidence of anyone other than villagers using the glebe for games or pastimes. Mr. Chapman does record one witness as saying that he had seen strangers enjoying informal recreation there. He summed up the position as follows:
“The evidence of the applicant’s witnesses and of the members of the public who gave evidence was that informal recreation on the glebe as a whole (as opposed to use of the public footpath) was predominantly, although not exclusively, by inhabitants of the village. This made sense because there is nothing about the glebe to attract people from outside the village. The objector accepted that the village was capable of being a ‘locality’. . .”
I think it is sufficient that the land is used predominantly by inhabitants of the village.
Miss Cameron’s third and final point was that the use of the glebe was not as of right because it was attributable to neighbourly toleration by successive rectors and the Board. She relied upon the following passage in Mr. Chapman’s report:
“It appears to me that recreational use of the glebe is based on three factors. First, the glebe is crossed by an unfenced footpath so that there is general public access to the land and nothing to prevent members of the public straying from the public footpath. Second, the glebe has been owned not by a private owner but by the rector and then the Board, who have been tolerant of harmless public use of the land for informal recreation. Third, the land has been used throughout for rough grazing so that informal public recreation on the land has not conflicted with its agricultural use and has been tolerated by the tenant or grazier.”
I should say that I do not think that the reference to people “straying” from the footpath was intended to mean that recreational user was confined to people who set out to use the footpath but casually or accidentally strayed elsewhere. That would be quite inconsistent with the findings of user which must have involved a deliberate intention to go upon other parts of the land. I think Mr. Chapman meant only that the existence of the footpath made it easy for people to get there. But Miss Cameron’s substantial point was based upon the finding of toleration. That, she said, was inconsistent with the user having been as of right. In my view, that proposition is fallacious. As one can see from the law of public rights of way before 1932, toleration is not inconsistent with user as of right. (See also per Dillon L.J. in Mills v. Silver [1991] Ch 271, 281). When proof of a public right of way required a finding of actual dedication, the jury were entitled to find that such user was referable to toleration rather than dedication: Folkestone Corporation v. Brockman [1914] AC 338. But this did not mean that the user had not been as of right. It was a finding that there had been no dedication despite the user having been as of right. The purpose of the Act of 1932 was to make it unnecessary to infer an actual dedication and, in the absence of specific rebutting evidence, to treat user as of right as sufficient to establish the public right. Alfred F. Beckett Ltd. v. Lyons [1967] 1 Ch. 449, in which the court was invited to infer an ancient grant to the Prince Bishop of Durham, in trust for the inhabitants of the county, of the right to gather coal on the sea shore, was another case in which the question was whether an actual grant could be inferred. One of the reasons given by the Court of Appeal for rejecting the claim was that the coal gathering which had taken place could be referable to tolerance on the part of the Crown as owner of the sea shore. But the establishment of a class c village green does not require the inference of any grant or dedication. As in the case of public rights of way or private easements, user as of right is sufficient. Mr. Chapman’s remarks about toleration are therefore, as he himself recognised, not inconsistent with the quality of the user being such as to satisfy the class c definition.
Miss Cameron cautioned your Lordships against being too ready to allow tolerated trespasses to ripen into rights. As Bowen L.J. said in Blount v. Layard [1891] 2 Ch. 681n., 691:
“nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood.”
On the other hand, this consideration, if carried too far, would destroy the principle of prescription. A balance must be struck. In passing the Act of 1932, Parliament clearly thought that the previous law gave too much weight to the interests of the landowner and too little to the preservation of rights of way which had been for many years in de facto use. As Scott L.J. pointed out in Jones v. Bates [1938] 2 All E.R. 237, 249, there was a strong public interest in facilitating the preservation of footpaths for access to the countryside. And in defining class c town or village greens by reference to similar criteria in 1965, Parliament recognised a similar public interest in the preservation of open spaces which had for many years been used for recreational purposes. It may be that such user is attributable to the tolerance of past rectors of Sunningwell, but, as Evershed J. said of the origins of a public right of way in Attorney-General v. Dyer [1947] Ch. 67, 85-86:
“It is no doubt true, particularly in a relatively small community . . . that, in the early stages at least, the toleration and neighbourliness of the early tenants contributed substantially to the extent and manner of the use of the lane. But many public footpaths must be no less indebted in their origin to similar circumstances, and if there is any truth in the view (as stated by Chief Justice Cardozo) that property like other social institutions has a social function to fulfil, it may be no bad thing that the good nature of earlier generations should have a permanent memorial.”
I would allow the appeal and direct the Oxfordshire County Council to register the glebe as a village green.
LORD HOBHOUSE OF WOODBOROUGH
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. For the reasons given by him I would also make the order he proposes.
LORD MILLETT
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons he gives I too would allow the appeal and make the order he proposes.
William Bennett Construction Ltd. v. Greene & Anor
[2004] IESC 15 (25 February 2004)
Keane C.J.
Murray J.
Geoghegan J.
JUDGMENT delivered the 25th day of February 2004, by Keane C.J. [Nem Diss]
The defendants were the owners in the year 2000 of a plot of land at Clonroche, Co. Wexford. They had originally intended to develop the land for housing and to that end the first named defendant applied for, and was granted, an outline planning permission for the erection of eighteen dwelling houses. The decision to grant outline permission contained a condition that it was for the housing development as shown on the site layout plan received by the planning authority. On that plan a drain for the disposal of sewage was shown running in a south-easterly direction to connect with the foul water sewer in the road adjoining the site.
Because of family circumstances, the defendants decided not to proceed with the development and to sell the site with the benefit of the outline permission. They also decided, however, to retain part of the site as shown on the site layout plan. The drain for the disposal of the sewage was shown on the site layout plan as crossing that land. That is what has given rise to the present litigation.
Mr. William Bennett (the proprietor of the plaintiff / appellant company and hereafter referred to as “the plaintiff”) was interested in acquiring the site being offered for sale by the defendants. He met the first named defendant towards the end of January 2000 and it is not in dispute that they agreed at that meeting on a purchase price of £250,000.00. It is also accepted by the parties that, at that meeting, the plaintiff made it clear that he would not be interested in proceeding with the purchase unless what is usually referred to as a “full planning permission” was available in respect of the proposed housing development. The draft contract for sale of the land was sent by the defendants’ solicitors to the plaintiff’s solicitors on the 20th April, 2000 and returned to them signed on behalf of the plaintiff on the 28th April. Condition 4 of the special conditions provided that
“The property is subject to the purchaser obtaining planning permission for the erection of eighteen dwelling houses on the subject property, the closing date shall be one month from the grant of planning permission. In the event that the said planning permission has not issued within six months from the date hereof either party shall be entitled to rescind this contract and the purchaser will be refunded his deposit in full without interest costs or compensation.”
Since there was already available an outline permission for the erection of eighteen dwelling houses on the lands being sold, it is accepted by both parties that the reference to the purchaser obtaining “planning permission” was either to an approval obtained by him consequent on the outline permission or a “full” permission (i.e. not an outline permission).
Under the heading “Documents Schedule”, two documents were referred to in the contract, i.e. “folio 11353 F”, in which the lands being sold were registered, and “Outline planning permission register reference 991372”. Paragraph 6 of the General Conditions provided that
“The documents specified in the documents schedule or copies thereof have been available for inspection by the purchaser or his solicitor prior to the sale. Where any of the subject property is stated in the particulars or in the special conditions to be held under a lease or to be subject to any covenants, conditions, rights, liabilities or restrictions, and the lease or other document containing the same is specified in the documents schedule, the purchaser, whether availing of such opportunity of inspection or not, shall be deemed to have purchased with full knowledge of the contents thereof, notwithstanding any partial statement of such contents in the particulars or conditions.”
On the 8th June, 2000, the contract was executed by the defendants. On the 17th November, 2000 the planning authority issued an approval for the development of the eighteen houses.
The sale was completed by the execution of a transfer of the land and the payment of the purchase money on the 31st January, 2001. Before that happened, however, the question as to whether the plaintiff was required to pay interest on the balance of the purchase money outstanding was discussed directly between the plaintiff and the first named defendant. The plaintiff, having been informed through his solicitors that the first named defendant was requiring the payment of the interest, there was a telephone conversation between them on the 1st or 2nd February at which the first named defendant confirmed to the plaintiff that he would have to pay the interest and, in response to a query from the plaintiff, also made it clear that he was not prepared to allow the drain for the disposal of the sewage to cross the land retained by him as shown on the site layout plan lodged for the purpose of obtaining the outline permission.
The defendants having maintained their attitude that they were not prepared to allow the plaintiff to lay a drain for the disposal of the sewage across the land retained by them, the present proceedings were issued. In the statement of claim, the plaintiff claimed inter alia an injunction restraining the defendants from preventing the plaintiff’s exercise of what was described as the “way leave” set out on the site layout plan. A defence having been delivered on behalf of the defendants denying that the plaintiff was entitled to any of the relief claimed, the action came on for hearing before O’Higgins J. In the course of evidence, the plaintiff said that, at the meeting in January 2000, where he and the first named defendant had agreed on the sale of the land for the specified sum and that it should be subject to full planning permission, the first named defendant showed him the site layout plan. He said that he indicated to the defendant where the plan showed the entrance to the site to be and where the sewage went out and the first named defendant agreed that that was what the plan showed. The first named defendant in his evidence denied that there was any discussion as to the sewage at that meeting.
There was also produced in evidence a record of an attendance by the solicitor for the first named defendant on his client dated the 8th March, 2000 which records:
“[The first named defendant] said in the outline permission the sewer pipe comes through the supermarket property onto the main street.
“He said that he wants the builder to take the sewage through the opening / entrance.”
The plaintiff in his evidence said that the cost of bringing the sewage out through the main entrance would be in excess of £120,000.00 and that he would not have bought the site if he had known that the defendants would not permit him to dispose of the sewage in the manner indicated on the site layout plan.
The trial judge, in his judgment, said that he preferred the evidence of the first named defendant to that of the plaintiff as to what had transpired at the meeting towards the end of January 2000 where the price for the land was agreed and that he was, accordingly, satisfied that there was no discussion as to the sewage at that meeting. He rejected the submission advanced on behalf of the plaintiff that the inclusion of the planning permission as one of the scheduled documents in the contract for sale meant that the contract was subject to an implied condition that the defendants would grant the plaintiff the way leave in question across the retained land and the further submission that the defendants in refusing to grant such a way leave were derogating from their grant of the land to the plaintiff, thereby entitling the plaintiff to the relief sought. From that judgment, the plaintiff has now appealed to this court.
At the outset, Mr. George Brady S.C. on behalf of the plaintiff accepted that this court could not disturb the finding of the trial judge as to the credibility respectively of the plaintiff and the first named defendant. He submitted, however, that the trial judge had erred in law in concluding that the actions of the defendants in declining to allow the plaintiff to dispose of the sewage in the manner indicated in the site layout plan had not derogated from their grant of the land. He said that where, as here, the land had been sold for a specific purpose known to both parties, i.e. the development of the land as shown on the site layout plan on the basis of which the outline permission had been granted, and the uncontradicted evidence established that it would be prohibitively expensive for the plaintiff to develop the land in any other way so far as the disposal of the sewage was concerned, the conduct of the defendants in refusing to allow the development proceed in that manner constituted a derogation from the grant of the land. He cited in support of this submission the decision of Barron J., sitting as a High Court judge, in Connell –v- O’Malley (unreported; judgment delivered 28th July, 1983). He also relied on the provisions of s. 6 of the Conveyancing Act, 1881.
Alternatively, Mr. Brady submitted that, in the circumstances of this case the doctrine of promissory estoppel applied and that the defendants, having represented to the plaintiff that the line of the sewage disposal would cross the land retained by them, should not be permitted to act in a manner inconsistent with that representation where it had been acted on, to his detriment, by the plaintiff, citing Daly –v- Minister for the Marine & Ors [2001] 3 IR 513.
On behalf of the defendants, Mr. Patrick Keane S.C. submitted that the defendants had agreed to no more than the transfer of the land described in the contract for sale for the specified price and did not agree to grant any way leave over the retained land. Since there was no way leave in existence at the date of the contract and the defendants had not in any way obstructed the exercise by the plaintiff of an existing easement or quasi-easement, there was no room for the application of the principle that a grantor should not be allowed to derogate from his grant. As to the claim based on promissory estoppel, Mr. Keane submitted that, having regard in particular to the finding of the trial judge as to the conversations between the plaintiff and the first named defendant and the undisputed evidence that the defendants had never promised that they would allow the plaintiff to lay a pipe across the retained land for the purpose of disposing of the sewage, that doctrine had no application.
As to the first submission advanced by Mr. Brady, there is little modern Irish authority on the principle that a grantor cannot derogate from his grant, although the law is helpfully reviewed by Barron J. in Connell –v- O’Malley., as yet unreported but noted at (1984) ILRM 563. Since Mr. Brady strongly relied on that judgment, the facts of the case should first be summarised.
The plaintiff had purchased a site at Navan from the defendant which had the benefit of outline planning permission for the erection of five dwelling houses. The site was formerly part of the defendant’s residential farm and was approached by a private laneway over his land. The plaintiff believed that this laneway would be taken in charge by the Meath County Council. There was protracted litigation between the parties and the defendant erected a gate which could close off the laneway, as a result of which the local authority refused to take it in charge. The plaintiff claimed an injunction restraining the defendant from maintaining any obstruction on the laneway on the ground that he was acting in derogation of his grant.
Barron J. found that, while the site could still be used for the erection of five dwelling houses, they would be very difficult to sell unless the laneway was taken in charge. Since the defendant knew that the site was being purchased for a housing development, he concluded that the only reasonable inference from the defendant’s conduct was that he was deliberately obstructing the laneway so as to ensure that the site would not be developed. In these circumstances, he held that the defendant’s conduct amounted to an attempt to derogate from his grant which should be restrained by the court.
Barron J. stated the law to be as follows:
“The doctrine of derogation from grant imposes implied obligations which arise when the owner of land disposes of part of it while retaining the balance. The most usual application is in relation to easements, but it is not limited to the creation of easements by implied grant. The obligations which are implied depend upon the particular nature of the transaction and arise from the presumed intention of the parties.”
Having referred to a contention on behalf of the defendant that the restriction which the plaintiff was seeking was one which he could have ensured was reserved to him by the contract of sale, Barron J. said, in a passage which was strongly relied on by Mr. Brady:
“When there are quasi-easements, then, on a sale of part of the land, the grantee does not have to contract specifically to retain the benefit of such rights for the benefit of the land granted, because they are implied. But, if the grantor wishes to retain quasi-easements for the benefit of the land retained, he must specifically reserve them. It is correct that the purchaser must protect himself specifically when the grantor could not anticipate that he would require such protection, but that is not the case here. I reject this defence.”
That, however, was said by the learned judge in a case where a defined right of way over land retained by the grantor giving access to the land transferred to the grantee was in existence at the date of the grant and its obstruction by the grantor rendered the land granted significantly less capable of development.
That is patently not the case here. At the time of the sale, there was not in existence an easement in the nature of a way leave which, when part of the land was sold, remained in existence as a quasi-easement for the benefit of the lands sold.
The law was thus stated by Thesiger L.J. in the leading case of Wheeldon –v- Burrows [1878] 12 Ch.D 31:
“We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which had been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted.” [Emphasis added]
That was stated by Ross J. in the Irish case of Head –v- Meara [1912] 1 IR 262 to be a specific application of the principle that a man must not derogate from his own grant.
In a modern Irish textbook on the subject, The Law of Easements and Profits a Prendre by Peter Bland, the law is stated clearly and succinctly as follows at para 1206
“For the quasi-easement (or accommodation) to be converted into an easement on the severance of the quasi-dominant and quasi-servient tenements, the accommodation must be capable of existing as an easement and it must have been used at the time of the grant by the grantor for the benefit of the property granted over the property retained.”
The defendants in this case had never at any stage used any part of their land for the disposal of sewage by means of a pipe connecting with the main sewers of the local authority. They did no more than indicate in the site layout plan lodged with the application for permission that that was how they would propose to dispose of the sewage, in the event of permission being granted for the development and the development proceeding. There was, accordingly, no easement in existence being used at the time of the grant by the grantor for the benefit of the property granted over the property retained and hence no room for the application of the doctrine that the grantor cannot derogate from his grant.
Section 6 of the Conveyancing Act, 1881, on which Mr. Brady also relied, provides that
“A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water courses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, or any part thereof or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”
Professor J.C.W. Wylie, in the second edition of Irish Conveyancing Law, describes this as one of the so-called “word saving” provisions in the Act. He observes that, while the section is often invoked to establish in favour of the purchaser the existence of easements over land retained by the vendor, it does not enlarge the rights to which the purchaser is entitled under the contract for sale.
I am satisfied that this is a correct statement of the law and that, in the case of easements, such as way leaves, the effect of the section is to ensure that any such easements in existence and appertaining to the land at the time of the conveyance pass with the conveyance. Moreover, as was made clear by Lord Wilberforce in Sovmots Ltd. –v- Environment Secretary [1979] AC 144, the section can have no application to a quasi-easement such as is claimed in this case, the reason being that
“When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist.”
No doubt, the existence of an outline permission could be described as one of the “advantages” appertaining to the land. But a purchaser of the land, such as the plaintiff in the present case, becomes entitled to the benefit of that permission, not by virtue of s. 6 of the 1881 Act, but because of the general principle enshrined in s. 28(5) of the Local Government (Planning and Development) Act, 1963, that a grant of permission to develop land inures for the benefit of the land and of all persons for the time being interested therein. I have no doubt that that is what Henchy J. was indicating in the case of Readymix (Eire) Ltd. –v- Dublin County Council & Anor (unreported; Supreme Court; judgments delivered July 30th, 1974) when he referred to a planning permission as “an appendage to the title”. The fact that it is not personal to the successful applicant for the permission and may be utilised by any person who subsequently acquires a legal interest in the property does not convert it into a document of title in any sense. That is put beyond doubt by s. 26(11) of the same Act which provides that
“A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.”
It follows that the plaintiff in the present case, in implementing the planning permission, was in no different position so far as the disposal of the sewage was concerned than if it had been shown in the layout plan as crossing the land of a third party to whom the defendants had sold the land subsequent to the obtaining of the permission.
As to the alternative argument advanced by Mr. Brady, that the plaintiff was entitled to rely on the doctrine of promissory estoppel, the law on that topic was stated as follows by Griffin J. in the decision of this court in Doran –v- Thompson Ltd. [1978] IR 223:
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance.”
That passage, which was also adopted by Fennelly J. speaking for the court in Daly –v- Minister for the Marine [2001] 3 IR 513, is undoubtedly an authoritative statement of the law on promissory estoppel. It is, however, of no assistance to the plaintiff in the present case, because he has failed to establish the existence of “a clear and unambiguous promise or assurance” by the defendants to grant him a way leave over the retained land. On the contrary, even on his own account, which was not accepted by the trial judge, there was no such promise or assurance: the first named defendant did no more than agree that the plan showed the sewage as being disposed of by a pipe crossing the land to be retained by the defendants. Both the attendance of the defendants’ solicitor recording the first named defendant’s insistence that the sewage should not be disposed of in that manner and the subsequent seeking by the plaintiff of an assurance from the first named defendant that he would be permitted so to dispose of the sewage are entirely inconsistent with any such unambiguous promise or assurance having been given by the defendants to the plaintiff before or at the time the contract was executed by the parties.
I would dismiss the appeal and affirm the order of the High Court.
John Doherty v Robert (aka Bertie) Long and Another
[2013] IEHC 189
Judge: Mr. Justice Herbert
20
The establishment of a private right of way by prescription or under the doctrine of lost modern grant does not require that there be evidence of continuous use of the servient land, without force, secrecy or permission. Even seasonal use (for example, access to turbary rights or hill grazing), dependent on the circumstances of the case might be sufficient for the purpose. However, I do not accept that vague and unspecific evidence of occasional or haphazard forays by a tractor with a mounted carrying box containing silage or animal feed over this lane, in respect of which I find that no maintenance works had been carried out where it crosses the lands of the first defendant from at least 1973 and, which on the evidence of Mrs. Anne Doherty and on the evidence of the first defendant had become or was becoming overgrown by briars and brambles in 1995/1996, is sufficient evidence of use to establish the right of way claimed by the defendants in this case. In addition, there is a disconcerting sameness and lack of any convincing detail about all of these alleged tractor journeys. There is also the remarkable fact that whereas before 1988 everyone saw and spoke to the Harkins, after 1988 not one of the alleged participants gave evidence of ever having met or even seen the plaintiff or any member of his household during any of these alleged journeys. Perhaps the plaintiff was always abroad on business when these journeys took place, but on the evidence his family did not accompany him on most to these business trips.
21
I was very concerned at the evidence given to this Court, but not the court below where they did not give evidence, by Mark Kelly and Ms. Peggy Harkin, that there was a right of way affecting the lands when they were sold to the plaintiff in 1988. The grandmother of the former and the mother of the latter made a Statutory Declaration at the time of the sale upon which I am satisfied the plaintiff relied in purchasing the lands that to the best of her knowledge, information and belief there was no right of way affecting those lands. In that formal document she stated that she conscientiously believed this to be true after the nature of what she was being required to declare had been explained to her by her solicitor. In cross examination, Mark Kelly even went so far as to tell me that he disagreed with what his grandmother had declared in 1988. However, when I recall that Mark Kelly was nine years of age in 1988 and no suggestion of the existence of a right of way was raised by the defendants or by anyone else prior to her death in 1998 I attach no weight to this evidence and I have regard only to the evidence of Mark Kelly with regard to his own alleged personal use of the lane and his alleged personal observations of others using the lane.
22
From a careful review of the evidence of Ms. Peggy Harkin, given on Commission, I am fully satisfied that in using the term, “right of way”, she was not describing easements of way such as were addressed in the Statutory Declaration executed by her mother. I am satisfied that what she described in evidence and stated what was generally known as “the right of way” was a short-cut taken by all and sundry for a whole variety of purposes over this lane from one end to the other which had nothing whatsoever to do with accommodating or benefiting the land of the first defendant or the land of the second defendant or any other adjoining land that could be benefited or, with establishing a right of way for the benefit of either of those lands. It is quite impossible to impose any time frame on the evidence of Ms. Peggy Harkin, which took the form of a number of sweeping generalisations. However, it is possible to be certain that whatever use of the lane she observed after 1989 was from a window of the new dwelling house erected with the proceeds of sale of the original Harkin house and lands to the plaintiff, between that house and the southern terminus of the lane at the county road on the south, and was confined to the passage of persons and tractors across her line of vision and that everything else was mere supposition on her part.
23
If the first defendant and the second defendant and any other persons used the lane for getting to a bog or moss in the general Gortkeeran area, this did not benefit or accommodate in any way either the lands of the first defendant or the lands of the second defendant. There is no dwelling house on the lands of the second defendant. On the evidence the first defendant never resided in the farmhouse on the lands he inherited from the late John McDonald. Even if I were to accept that the first defendant stored turf in the yard or outbuildings attached to the farmhouse of the late John McDonald-the necessity for which is difficult to reconcile with his evidence of twelve to eighteen trips to the bog annually, with the involvement of quite extraordinary labour intensive and time consuming loadings and unloadings of trailer loads of turf the necessity for which was not explained-this still did not accommodate or benefit in any way the lands which he inherited from the late John McDonald. To submit that such use established the existence of a right of way is to contend for an easement in gross which the law does not permit.
24
If I were to accept that Anthony Porter in fact used the lane in every way he claimed to have used it in his evidence, this use, from an unspecified date in 1996 until June 2004, would in itself be nothing like sufficient either in duration or quality to establish the existence of a private easement of way along the lane over the lands of the plaintiff to and from lands of the first defendant. Eddie McDonald was not called as a witness nor was his evidence taken on Commission like that of Ms. Peggy Harkin. If I were to accept the secondary evidence of his using the lane again it would be insufficient to establish the existence of the right of way claimed by the defendants or either of them. The evidence established that from some date in the decade 1960 to 1970 until the end of 1995, Eddie McDonald and thereafter to the date of hearing, Anthony Porter have taken all the lands of which the first defendant is now the registered owner on the eleven months system. This gives a personal licence to the taker to use the land taken for a particular purpose only and does not give the taker any estate or interest whatsoever in the land taken. Therefore, any use of the lane by either Eddie McDonald or Anthony Porter was for their personal benefit only and could not establish or amount to evidence of the existence of a private easement of way for the benefit of the lands formerly owned by John McDonald and now owned by the first defendant.
25
In very many other respects the evidence tendered in the case for the defendants on this appeal was unreliable as lacking in depth, detail and corroboration and, at times, amounted almost to an exercise in obfuscation. The second defendant stated that from 1980 to 1995 when the first defendant inherited the lands from the late John McDonald he did not use the very much shorter access to his field gate from the northern terminus of the lane which is almost opposite his house, but travelled all the way around on the county roads to the southern terminus of the lane and then passed over the much longer length of lane to the gate. He said that he did this because he felt that McDonald’s way was private and he did not want to bother McDonald while he was living in the farmhouse. It will be recalled that during the entire of this period, all the lands of the late John McDonald were taken by his nephew Eddie McDonald on the eleven months system. The first defendant told the court that he had been helping the late John McDonald from 1973 until the date of his death and the first defendant did not give evidence that the portion of the lane from its northern terminus to the farmhouse was private. All the other witnesses who were called in the case for the defence claimed that there was a right of way from the northern terminus of the lane to its southern terminus. The second defendant offered no explanation as to why he felt that approximately one third of the lane from its northern terminus to the farmhouse and yard of the late John McDonald was private, but the remaining approximately two thirds of the lane some of which also crossed part of these lands was not.
26
Mrs. Anne Doherty gave evidence that after the death of John McDonald someone had erected a gate at the northern terminus of the lane where it opened on to the county road. Neither the first defendant nor the second defendant nor any other witnesses called in the case for the defendants referred to this incident. The second defendant claimed that he had asked the late Patrick “Pakie” Harkin and the late Susan Harkin about access to the field for which he had intended to bid at public auction, because he had become worried. However, he did not give evidence that he had made any similar inquiry from the vendor, James Doherty or his solicitors or from the late John McDonald whose lands surrounded that field. He claimed in evidence that at auction, the auctioneer had announced that there was a right of way to the field. However, the auctioneer was not identified or called as a witness nor was any other participant in the auction. The second defendant did not give evidence as to the alleged right of way described at auction and did not produce a single scrap of paper relating to the auction or the purchase. No right of way over the lane from either north or south is registered as a burden on Folio 32260F, Co. Donegal, a copy of which, together with a Folio map was produced in evidence, and of which the first defendant is now the registered full owner with an absolute title.
27
The second defendant stated in evidence that he had let part of the field for the benefit of which the private right of way is now claimed by him, to his brother and kept a donkey and a horse on the other part of the field. His brother was not called as a witness and the second defendant did not give any information whatsoever to the court about the use his brother had made of the part of the field let to him or how he had gained access to the field. Evidence was given that the field is registered in Folio 32345F, Co. Donegal, a copy of which but without a Folio map, was produced in evidence. The devolution of title appearing on the face of the Folio is from Raymond Hartin, who became registered as full owner on the 2nd July, 1980, to the second defendant who became registered as full owner on the 15th December, 2008, at which date the possessory title of the property was converted to absolute. It will be recalled that the Equity Civil Bill was issued in these proceedings on the 11th July, 2008. Therefore, during all the period when the second defendant claims he was using the lane from its southern terminus at the county road on the south as a right of way to accommodate the lands in Folio 32345F, Co. Donegal, he had no legal estate or interest whatsoever in those lands. In the course of cross examination he referred to what he claimed was an “arrangement” with his brother that he would purchase this field and that his brother would then purchase it from him over an unspecified period and for an unspecified sum. As his brother was unable to raise the necessary finance, the field was transferred into the name of the second defendant. This only arose in cross examination and no evidence in chief was given by the plaintiff about such an agreement or arrangement. No note or memorandum of any such agreement was produced by him in evidence, nor was any evidence put before the court which might lead the court to consider that the brother of the second defendant in the period the 2nd July, 1980 to the 15th December, 2008, held the lands in Folio 32345F, Co. Donegal as a constructive trustee for the second defendant.
28
The second defendant failed to explain the existence of what I am satisfied on the evidence of the High Flown Orthophotography Print of 2000 is probably a made or metalled strip or road running at right angles from just inside the bank and drain at the side of the county road on the north for half the length of the field travelling north to south. This is on the opposite side of the field from the residence of the first defendant and adjoins a field which I was told in evidence was owned by a son of the first defendant. The construction of a culvert over the roadside drain and the opening of a gateway in the boundary bank would allow access from this made or metalled road or strip on to the county road. The second defendant professed to know nothing at all about this object, what it might be, (though he wondered if it might be a drain or a large bank), how it had come to be on his lands, by whom it was made, by how entry on to the land was achieved in order to make it. I find this entirely incredible and I am reluctantly obliged to consider that I can place little reliance on the evidence of the second defendant. Photographs taken in July 2012 and during the course of the hearing of this appeal for a position on the county road are altogether inadequate to enable this object to be identified, particularly as it may have become overgrown with vegetation in the course of the past twelve years. No documentary or other evidence sufficient to enable me to conclude, even on a prima facie basis, that turbary rights over the alleged moss or bog in the general Gorkeeran area were held by them, was given by the first defendant or the second defendant or by any witnesses called in the case for the defendants, nor was any documentary evidence produced in relation to lands alleged to have been taken on the eleven months system in that general area by any of these persons or by any member of their respective families.
29
The first defendant and the second defendant gave evidence that in 2004 the plaintiff had prevented them from using the alleged right of way and had obstructed the lane with large boulders, piles of sand and goal posts. By a letter admitted into evidence dated the 7th March, 2006, addressed to the first defendant, “and/or any company and/or operational vehicle and/or development entity which you are in control of and/or give instructions to”, the plaintiff inter alia, stated that he disputed that there was any right of way over his land. The less than edifying events which occurred between 2004 and the 11th July, 2008, are of no assistance in the determination of this appeal. Suffice it to state that the first defendant and the second defendant continued to maintain that they were entitled to a private right of way over the lane through the plaintiff’s lands and the plaintiff continued to deny the existence of any such right of way. An Equity Civil Bill was issued by the plaintiff on the 11th July, 2008, and a full defence together with a counterclaim was delivered by the defendants.
30
I find that no right of way for the benefit of the lands identified in the pleadings and in this judgment or any part of them and held by the defendants or either of them exists on or over the lands of the plaintiff or any part of those lands. I therefore dismiss the counterclaim of the defendants with costs to the plaintiff on this appeal and in the court below. I find for the plaintiff in his claim endorsed on the Equity Civil Bill and grant a permanent injunction restraining the defendants and each of them, their servants and agents and any person or persons whomsoever acting on behalf of them or either of them, from entering or trespassing upon or in any manner interfering with the lands of the plaintiff in Folio 22454F, Co. Donegal, or any part of those lands. No evidence of special damage was given by the plaintiff. I award the plaintiff in addition to the costs already awarded his costs in respect of the claim in the said Equity Civil Bill in this court and in the court below, together with any, if any, reserved costs.
Carroll v Sheridan
[1984] ILRM 451,
Court: High Court (Ireland)
Judge: Mr. Justice O’Hanlon
Whether or not the evidence is sufficient to indicate such an intention on the part of the landowners to dedicate the way to the use of the public in general, it does, in my opinion, indicate an intention on their part that the land could be freely used by the owners of all the lands abutting on the lane as a means of access to the public highways which are found at each end of the lane. This is evidenced by the presence of old gateways leading from different parts of these lands onto the lane, and by the evidence of free and unobstructed user of the lane over many years when it was needed for purposes connected with the user of the adjoining lands. I accept that over long periods the lane was allowed to become overgrown and impassable, but it had obviously been deliberately constructed at the beginning of its history as a pathway dividing many different holdings of land, and as a connecting link between two main highways, with substantial boundaries on each side of the path, and adequate surfacing materials along its entire length to make it suitable for use by a rural community. To the extent that it was used by the Plaintiffs’ predecessors in title as a means of access to their lands which abut onto the lane, and by the other adjoining landowners for like purposes, no one appears ever to have challenged or contested such user until the intervention by James Sheridan at the auction of the Cock Field in 1974. The challenge then thrown down by him was immediately taken up by the auctioneer and his client, both of whom were very familiar with the lane and the area generally, and when they proceeded to enforce the claim to a right of way the said Defendant took no further steps to maintain his challenge.
I regard this incident as being illustrative of a recognition on the said Defendant’s part that such a right of way was, traditionally, available for the benefit of the landowners whose lands abutted onto the lane, and this is important because the Defendant is now quite advanced in years and has been living and working beside the lane for upwards of 60 years.
The evidence suggesting that a gate or gates had been erected across the lane at different times in the past was of a very nebulous nature, and I was not prepared to attach any importance to it.
Secondly, when the said Defendant came to develop his own lands for building purposes, he had no compunction about clearing away all the bushes and briars; doubling the available width of the lane, and putting a new surface on it, as far as was necessary to accommodate his building project – although in doing so he appears to have been dealing with substantial parts of the surface of the lane which were not in his ownership, but were registered on the title of a number of different owners. In evidence he stated that he felt he was perfectly entitled to do so and he is probably correct in this assumption – but only because he, in common with the other landowners along the lane, is one of the dominant owners who are entitled to keep the servient tenement consisting of the right of way, in good repair and condition for whatever use they are entitled to make of it.
I think it is also very significant that the said Defendant is now making use of the lane or path for purposes which do not at all resemble the traditional uses for which it has been utilised in the past – namely for development of his land as building land and for providing a means of access to several dwellings which have now been erected on what was formerly a purely agricultural holding. Once again, I would be prepared to accept that the Defendant was entitled to take this course, notwithstanding the fact that the way leading to the new houses passes over land which appears to belong to a number of third parties.
In Cowling -v- Higginson, 1938 4 M. & W. 245, Parke B. observed: “If it had been shown that from time immemorial it had been used as a way for all purposes that were required, would not that be evidence of a general right of way? If they shew that they have used it time out of mind for all the purposes that it wanted, it would seem to me to give them a general right.
“If it is shewn that the Defendant and those under whom he claimed had used the way whenever they had required it, it is strong evidence to show that they had a general right to use it for all purposes, and from which a jury might infer a general right…. If it is proved to have been used for a variety of purposes, then they (the jury) might be warranted in finding a way for all. You must generalise to some extent, and whether in the present case to the extent of establishing a right for agricultural purposes only is a question for the jury.”
Lock -v- Abercester Ltd., (1939) Ch. 861, (Bennett J.) is an authority for the proposition that proof of user with horses and carts will establish a right of user with mechanically propelled vehicles.
It was strongly contended on behalf of the Defendants in the present case that even if the evidence were sufficient to establish that a prescriptive right of way had once existed over the path or lane in question in favour of the lands of the Plaintiffs and other adjoining landowners, nevertheless such right of way must by now be regarded as having been extinguished by non-user over a very considerable period of years.
The evidence certainly went a long way towards suggesting that in modern times the path has been allowed to become completely overgrown at various parts along its course, rendering it impassable for periods which may have been quite lengthy in the past.
If one were dealing with a public way, this would appear to present no problem for the Plaintiffs. Byles J. said in Dawes -v- Hawkins (1860) 8 CB (ns) 848: “It is an established maxim – once a highway always a highway; for the public cannot release their rights, and there is no extinctive presumption or prescription.” A similar conclusion was reached in Turner -v Ringwood Highway Board (1870) LR 9 Eq. 418, where it was held that a public right over any part of a highway was not lost by disuse. “Where the sides of the way have become covered with furze and heath, and fir trees have been allowed to grow up for 25 years, the public have a right to have the trees removed and the whole width of the road preserved free from obstruction.” In Representative Church Body -v- Barry, (1918) 1 IR 402, where a road had been stopped for over 60 years, and the public excluded therefrom, and a new road made, the court was willing to act on a presumption that the necessary legal steps had been taken to extinguish a highway if one existed, under the Grand Jury (Ireland) Act, 1836, but the evidence of non-user in the present case falls far short of the extreme situation which arose in that case.
With regard to a private right of way, the authorities appear to establish that mere evidence of non-user is not sufficient to bring about the extinction of rights of way or other “discontinuous” easements. In Tehidy Minerals Ltd. -v- Norman, (1971) 2 QB 528, 533, the Court of Appeal held that abandonment of an easement or profit a prendre can only be treated as having taken place where a person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.
In Cook -v- Mayor and Corporation of Bath, (1868) LR 6 Ex. 177,Malins VC said: “It is always a question of fact, to be ascertained by a jury or by the Court from the surrounding circumstances, whether the act amounts to an abandonment or was intended as such.” He held in that case that 30 years’ non-user was not sufficient, without more, to extinguish a right of way.
In R. -v- Chorley, (1848) 12 QB 515, Lord Denman CJ said:
“It is not so much the duration of the cesser as the nature of the act done by the grantee of the easement or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material for the consideration of the jury.”
In Ward -v- Ward, (1852) 7 Ex. 838, a right of way was held not to have been lost by mere non-user for a period much longer than 20 years, it being shown that the way was not used because the owner had a more convenient mode of access through his own land. Alderson B. said: “The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user therefore, must be the consequence of something which is adverse to the user.”
In Crossley -v- Lightowler, (1866) LR 3 Ex. 279; (1867) 2 Ch. App. 478, Page Wood VC said: “The question of abandonment is a question of fact that must be determined upon the whole of the circumstances of the case”, and on appeal in the same case Lord Chelmsford LC said: “The authorities upon the subject of abandonment have decided that a mere suspension of the exercise of a right is not sufficient to prove an intention to abandon it… The question of abandonment of a right is one of intention to be decided on the facts of each particular case.”
Finally, in the modern case of Gotobed -v- Pridmore, (1970) 115 SJ 78 the Court of Appeal in England held that the abandonment of an easement is not lightly to be inferred. Mere abstinence from the use of a right of way was not enough to establish an intention to abandon. What was required was conduct by the owner of the dominant tenement which made it clear that neither he nor any successor in title of his would afterwards make use of the way.
Applying the principles enunciated in these cases to the facts of the present case, I find that the lane in question here was used by the Plaintiffs’ predecessors in title and by the various landowners whose lands abutted onto the lane, whenever it was convenient or useful for them to do so and for whatever purposes were relevant from time to time in connection with the current user of their lands. Generally speaking, they had other means of access to the fields which abutted onto this lane, over other pathways further to the south or to the north, and thence through other fields which formed part of their respective holdings and I have no doubt that this was the principal reason why the lane was allowed to become overgrown and well-nigh impassable from time to time. I would also assume that with the advent of motorised transport, other roads to the south and to the north of this lane became more popular as a means of access from the main Dublin/Dundalk road to the Dundalk/Blackrock road than the rough and narrow short-cut provided by An Bothar Maol in previous centuries. I have no doubt, however, that the owners of the soil have long since ceded the right to the adjoining landowners and also, in all probability, to the public in general, to use the way to the fullest extent that they wished to use it as a link road between the two main highways, and that there has been no intention on the part of the Plaintiffs or their predecessors in title, established by the evidence in the case to abandon that valuable right.
For these reasons I propose to vary the Order made by the learned Circuit Court Judge and to give the declaration sought by the Plaintiffs in the Equity Civil Bill as against the Defendants, who have elected to dispute the right claimed by the Plaintiffs. I make a declaration as against the Defendants that the Plaintiffs are entitled to a right of way for all purposes to and from their lands as shown on the map or plan annexed to the Civil Bill herein, over the entire path or way coloured yellow on the said map and connecting with the Dublin/ Dundalk highway at its western extremity and with the Dundalk/Blackrock highway at its eastern extremity, and marked A to M on the said map or plan.
I reserve liberty to all parties to apply as may be necessary if any further ancillary orders are necessary for the implementation of the findings made herein.
With regard to the earthworks which have been raised as obstructions on the said right-of-way in recent times, the evidence in the case strongly suggests that these have been created by the Defendants, but no formal proof was given on this point and accordingly I am unable at present to order their removal by the Defendants. Nor do I propose to award damages against the Defendants as I think they were not unreasonable in seeking to have the legal position as between the parties determined by the Court. Should the obstructions not be removed forthwith, however, further proceedings for an injunction and for damages for trespass and nuisance could be maintained against the parties responsible.
I propose to award the Plaintiffs the costs of the proceedings in the High Court, each party to bear their own costs of the proceedings in the Circuit Court.
The Square Management Ltd v Dunnes Stores Dublin Company
[2017] IEHC 146
Court: High Court (Ireland)
Judge: Mr Justice Max Barrett
XVI. Easement by Prescription
84
In 2016, Dunnes claimed for the first time that it has acquired a right of parking in the Northern Car Park Area as an easement by prescription. The old forms of prescription under common law or lost modern grant were abolished by s.34 of the Land and Conveyancing Reform Act 2009; however, Dunnes claims its easement under s.38(b) of the Act of 2009 which preserves the right to claim a prescriptive period under the previous legal regime for a period of up to 12 years from 2009.
85
Gale on Easements (19th ed.) defines prescription, at para. 4-01, as ‘ a title acquired by use or enjoyment had during the time and in the manner prescribed by law’. Fundamentally, prescription arises from acquiescence. As Lindley L.J. noted in Dalton v. Angus (1881) 6 App Cas 740, 773, a case concerned with the acquisition of a right to lateral support from adjoining land, ‘[ T]he whole law of prescription and the whole law which governs the presumption of inference of a grant or covenant rests upon acquiescence…. It becomes then of the highest importance to consider of what ingredients acquiescence consists’. The critical ingredient is user as of right, a concept elaborated upon by Parke B. almost two centuries ago in Bright v. Walker (1834) 1 Cr M&R 211, a case concerned with a claim to a right of way over land in the possession of a lessee, and re-visited more recently by the High Court in Zopitar Limited v. Jacob [2015] IEHC 790, another case concerned with an unsuccessfully contended for right of way, where Gilligan J. stated, at paras. 81–82:
‘81.…“User as of right” means without force, secrecy, and without oral or written consent of the servient owner, or, as it is often put, nec vi, nec clam, nec precario.
82. The important question is whether the use would suggest to a reasonably careful and prudent owner of the land that a casual use only of the land was being made dependant for its continuance upon the tolerance and good nature of such servient owner, or would it put such servient owner on notice that an actual right of way was being asserted. It cannot therefore be secret, clandestine or surreptitious. The use also cannot be forced upon the servient owner, for prescription theory demands acquiescence in order for a right to be established. Finally, for the Court to be satisfied that there has been acquiescence to the establishment of a right, the necessary use cannot be referable to a consent, permission or licence. It cannot be precatory, in the sense of being precarious, that is, subject to the will of the servient owner and capable of being interrupted. The determination as to whether a case falls on either side of the acquiescence/toleration divide depends on its particular facts.’
86
Among the other cases to which the court has been referred in this regard are The Leopardstown Club Limited v. Templeville Developments Limited [2013] IEHC 526, Walsh v. Sligo County Council [2013] IESC 48, two recent decisions of the English Superior Courts in Lynn Shellfish Limited v. Loose [2016] UKSC 14 and Winterburn v. Bennett [2016] EWCA 482, and the long-ago decision of the House of Lords in Gardner v. Hodgson’s Kingstown Brewery [1903] AC 229.
87
In Leopardstown Club, a case which involved a variety of issues, including alleged breaches of rights of way and to adverse possession of certain land, Charleton J. observed as follows, at 20, under the heading ‘ Rights of way’:
‘Consent is completely incompatible with prescriptive rights unless that consent has been given so far in the past as to be rendered irrelevant…. Assertion of rights based on permission is untenable…. What is clear is that the essential quality of prescriptive rights must arise by reference to right and not by reference to permission. A user giving right to prescriptive rights must be without force, without deception and cannot be based on permission from the owner of the land, or as early Norman French puts it nec vi, nec clam, nec precario’.
88
This Court respectfully inclines to the view that a known consent even if given in the long-distant past does remain relevant. Even so, and without prejudice to the foregoing, a consent given in 1989 or 1990 is clearly not in any event ‘ given so far in the past as to be rendered irrelevant’. But the critical limb of Charleton J.’s observations clearly holds true: ‘[T]he essential quality of prescriptive rights must arise by reference to right and not by reference to permission.
89
In Walsh, the well-known case concerning alleged public rights of way affecting the avenues of the recently restored Lissadell Estate, the Supreme Court, at para. 93, made clear that once a licence is given to use land no claim to prescriptive rights can arise:
‘User by permission of the owner is not user as of right. At the same time, user without express permission is not necessarily user as of right. Whether particular acts of user are to be described as being as of right requires account to be taken of all the circumstances. Acts may be tolerated or indulged by a landowner vis-à-vis his neighbours without being considered to be the exercise of a right.’
90
In Lynn Shellfish, which featured a dispute concerning the proper extent of a private shellfish fishery, Lord Neuberger, at para. 37 of his judgment, re-affirms that the quality of use required to establish a prescriptive right to a profit or use ‘ is embodied in the expressions, which have been held to be synonymous in their meaning and effect, namely “as of right” and nec vi, nec clam, nec precario (i.e. not secretly, not by force, and not with permission).’ Lord Neuberger also refers favourably to the helpful dictum of Lord Walker in R (Lewis) v. Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, para. 30, that persons claiming to have acquired a right by prescription ‘ must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him.’
91
In Winterburn v. Bennett [2016] EWCA 482, a case that has no little resonance in the context of the within proceedings where the plaintiffs maintain the car-parks, including the provision of signage and lighting in return for an annual service charge paid by Dunnes, the Court of Appeal of England and Wales, confronted with a case of unauthorised parking, held that the owner’s continued objection to the unauthorised parking sufficed to defeat a claim of parking as of right. In Gardner, the payment of a service charge (and such a charge is payable and paid by Dunnes here) was held fatal to the prescriptive right claimed there. Per Lord Halsbury, at 231:
‘[W]hat is conclusive, to my mind, against the appellant is that during the whole period during which this convenient access was used a sum of 15s a year was regularly paid in respect of the user of the way.
One of the most common modes of preventing such a user growing into a right is to insist upon a small periodical payment, and if such evidence as we have here were permitted to be evidence of a right, not only to the user upon terms of payment, but of a right to make the payment and continue the user in perpetuity, it would be a very formidable innovation indeed.’
92
Under the E&G Lease and the F Lease Dunnes has an express licence (permission) the effect of which is that its customers can park in the Northern Car Park Area. So no question of user without permission can arise that would yield an easement by prescription. As Bland on Easements (3rd ed.) notes, at para. 1-87, ‘[ P]ermission is fatal to a claim of prescription’. As Lord Lindley noted in Gardner, at 240 ‘ The common law doctrine is that all prescription presupposes a grant. But if the grant is proved and its terms are known, prescription has no place.’ Applying Lord Walker’s test in Lewis, what conduct has been brought home by Dunnes to the plaintiffs that a right is being asserted against them, so that the plaintiffs have had to choose between asserting their rights, or finding that those rights have been established against them? There has been no such conduct. Dunnes’ claim to easement by prescription must and does fail.
Zopitar Ltd v Jacob
[2017] IECA 183
Reported In: [2017] 6 JIC 2004, [2018] 1 IR 657
Jurisdiction: Ireland
Court: Court of Appeal (Ireland)
Judge: Mr. Justice Gerard Hogan
The concept of nec precario
41
The essence of the appellant’s claim is that a right of way was acquired by prescription by reason of twenty years (or more) uninterrupted user under s. 2 of the Prescription Act 1832 (‘the 1832 Act’) (as applied to Ireland by the Prescription (Ireland) Act 1858) between the date of the construction of the de Valera road in 1982 and 2011. It is clear from the authorities that in order to establish such a prescriptive claim under the 1832 Act, the user must be ‘as of right’ and that this requirement imports the traditional concepts of nec vi, nec clam and nec precario: see, e.g., Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] A.C. 229, 239, per Lord Lindley and R. v Oxfordshire C.C., ex p. Sunningwell Parish Council [2000] 1 A.C. 335, 353per Lord Hoffmann.
42
For completeness I should observe that although the 1832 Act is no more – it having been repealed by s. 8(3) of the Land Law and Conveyancing Law Reform Act 2009 (‘the 2009 Act’) – since the events which are the subject of the present litigation pre-date such repeal, the provisions of s. 2 of the 1832 Act continue to govern the present case.
43
It is fortunately not necessary for present purposes to examine the many obscure and arcane features of the 1832 Act. Few tears will have been shed upon its demise, as its repeal by the 2009 Act removed from the statute-book what the English Law Reform Committee had previously described as ‘one of the worst drafted statutes’: see 14th Report, Acquisition of Easements and Profits by Prescription (Cmd. 3109)(1966) at 40.
44
Section 2 of the 1832 Act speaks of the person ‘claiming right’ thereunder and s. 5 – which deals with the form of pleadings in prescription cases – refers to user as ‘of right’. In one of the early post-1832 Act decisions on the point, Bright v. Walker (1834) 1 C.M. & R. 211, 219, Parke B. said that these provisions referred to persons using the servient tenement ( i.e., the land the user of which was said to give rise to the right of way):‘openly and in the manner that a person rightfully entitled would have used it’ and not by stealth or by licence. This understanding of the effect of the 1832 Act was confirmed by Lord Lindley in Gardner v. Hodgson’s Kingston Brewery Ltd. [1903] A.C. 229, 239 when he said that the words ‘as of right’ in the 1832 Act were intended ‘to have the same meaning as the older expression, nec vi, nec clam, nec precario’. In the same case Lord Halsbury L.C. said ( [1903] A.C. 229, 231):
‘That right means a right to exercise the right claimed against the will of the person over whose property it is sought to be exercised. It does not and cannot mean an user enjoyed from time to time at the will and pleasure of the owner of the property over which the user is sought.’
45
It is accordingly clear from these authorities that in order to establish such a prescriptive claim under the 1832 Act, the user must be ‘as of right’ and that this accordingly imports the traditional concepts of nec vi, nec clam and nec precario. There is, of course, no question of force ( vis) or secrecy ( clam) in the user in the present case. The real question is whether the user amounted to precario.
46
The concept of nec vi, nec clam, nec precario (‘without force, without stealth and without permission’) is a quintessentially Roman law concept which, it is now generally accepted, was taken over by Bracton in his four books of De Legibus et Consuetudinibus Angliae (‘On the laws and customs of England’) which were published some time around 1235: see R. (Beresford) v. Sunderland C.C. [2004] UKHL 60, [2004] 1 A.C. 289per Lord Rodger and London Tara Hotel Ltd. v. Kensington Close Hotel Ltd. [2011] EWCA Civ. 1356, [2012] 2 All ER 554, per Lord Neuberger M.R. This entire concept of precario had been well explained by Bracton in his Fourth Book (as quoted in Gale on Easements (2012)(19th.ed.) at 260):
‘Si autem seisina precaria fuerit et de gratia, quae tempestive revocari posit et intempestive, ex longo tempore no acquiritur jus’ (‘If, however, seisin shall have been from mere favour ( precario) and from grace ( de gratia), which may revoked in season and out of season, no right is acquired from a long period of time.’)
47
Part of the difficulties which beset this entire area of the law is that, the law of probate aside, this is one of the comparatively rare examples of where the common law has borrowed promiscuously from Roman law concepts. Unlike, however, the position which obtained in Roman law and which still obtains in modern civilian systems, there is no consistent common law theory of prescription which can always fully accommodate itself to this wholesale adaptation of Roman law concepts.
48
All of this was highlighted in the judgment of Lord Rodger – who was himself a Roman law scholar of great distinction – in R. (Beresford) v. Sunderland City Council [2003] UKHL 60, [2004] 1 A.C. 289. In this case the question was whether for the purposes of particular UK legislation the public had acquired the entitlement to use a particular recreational area as ‘of right’. As Lord Rodger explained:
‘….From at least 1977 members of the public have used an area near the town centre – referred to as ‘the Sports Arena’ – for recreation. In truth it is just an open, flat area of grass of some 13 acres which the Washington Development Corporation laid out in about 1974. In the Washington New Town Plan 1973 the land was identified as ‘parkland/open space/playing field’. In 1977, around the time of the Queen’s Silver Jubilee visit to the ground, the Development Corporation constructed wooden seats along much of the perimeter. A hard-surface cricket pitch was laid out in 1979. For the rest, the public bodies who have owned the land – most recently, the council – have done little except keep the grass cut. Local people have used the ground in their different ways. Toddlers have played there, children of all ages have kicked a ball around or played cricket and other games, a Sunday league football team have used it for their matches. Many have simply treated it as a place to picnic, socialise, take their ease in the sunshine or walk the dog. …if the inhabitants of any locality have engaged in lawful sports and pastimes nec vi nec clam nec precario for at least 20 years, they have engaged in them “as of right” and the land can be registered as a town or village green in terms of the 1965 Act.
It is not suggested that members of the public used the Sports Arena vi, by force: the owners did not try to stop them and so there was no question of them overcoming any resistance on the owners’ part. Equally, the public were not enjoying themselves clam, by stealth: on the contrary, they used the land openly and the owners knew what was going on. The Council concluded, however, that the local residents and others enjoying the land had been doing so precario, by virtue of the licence of the owners of the land. Admittedly, there was nothing to show that the owners had given any express permission or licence to the public. But the facts as a whole, and cutting the grass and constructing the seating in particular, showed that the owners had actively encouraged the use of the area for recreation and so had impliedly granted a licence, or given permission, for it to be used in that way. Use of the land by virtue of this licence or permission could not constitute use ‘as of right’ for purposes of section 22(1) of the 1965 Act.
In Roman law “precarium” is the name given to a gratuitous grant of enjoyment of land or goods which is revocable at will. The arrangement is informal and is based on the grantor’s goodwill, whether more or less enthusiastic. But, however informal, the arrangement does involve a positive act of granting the use of the property, as opposed to mere acquiescence in its use. The name suggests, and the Digest texts indicate, that in Roman law the paradigm case is of a grant in response to a request. The arrangement lasts for only so long as the grantor allows, tamdiu quamdiu is qui concessit patitur: D.43.26.1 pr, Ulpian 1 institutionum. The concept of precarium crops up in different areas of Roman law, but importantly in connexion with interdicts. The praetor protects someone from interference if he has taken possession of land, or begun carrying out work, nec vi nec clam nec precario.
In de legibus et consuetudinibus Angliae Bracton took over the noun precarium and its congeners from the vocabulary of Roman law and used them in a number of contexts, but always with reference to a gratuitous grant which is revocable at any time at the grantor’s pleasure. See, for instance, lib 2 ff 52 and 52b. In lib 4 f 221 Bracton discusses the acquisition of easements by use for some time nec vi nec clam nec precario – the last being, he says, the same as de gratia, of grace. Under reference to the second of these passages, in speaking of the use of a watercourse in Burrows v Lang [1901] 2 Ch. 502, 510, Farwell J. asked “What is precarious?” and answered his own question: “That which depends, not on right, but on the will of another person.” Some years before, in Sturges v Bridgman (1879) 11 Ch. D. 852, 863, Thesiger L.J. had indicated that, if a man “temporarily licenses” his neighbour’s enjoyment, that enjoyment is precario in terms of the civil law phrase “nec vi, nec clam, nec precario.” It is important to notice that, in this regard, English law distinguishes between an owner who grants such a temporary licence or permission for an activity and an owner who merely acquiesces in it: Gale on Easements (17th. ed. 2002), para 4-83. Someone who acts with the mere acquiescence of the owner does so nec precario.
The council were, accordingly, entitled to refuse Mrs Beresford’s application for registration of the area as a town or village green only if those who used the Sports Arena did so by the revocable will of the owners of the land, that is to say, by virtue of a licence which the owners had granted in their favour and could have withdrawn at any time. The grant of such a licence to those using the ground must have comprised a positive act by the owners, as opposed to their mere acquiescence in the use being made of the land. Prudent landowners will often indicate expressly, by a notice in appropriate terms or in some other way, when they are licensing or permitting the public to use their land during their pleasure only. But I see no reason in principle why, in an appropriate case, the implied grant of such a revocable licence or permission could not be established by inference from the relevant circumstances.
In the present case the owners did not expressly license the use of the land by the public. The Council rely on two circumstances, however, as justifying the inference that those who used the Sports Arena did so precario, merely by licence from the owners of the land. The first is that the owners cut the grass. But that is at least equally explicable on the basis that the owners were concerned, as many owners would be, for the appearance of such a large and prominent area of open land in the heart of the town. Like charity, care of amenities begins at home. The second matter relied on is the, now rather dilapidated, wooden seating along the perimeter. Whatever may have been its original purpose, the continued existence of the seating is consistent with the owners of the land having acquiesced, perhaps quite happily, in people using the area for football or other games which their friends or relatives would wish, or feel obliged, to watch. To an extent the owners may thus have encouraged these activities. The mere fact that a landowner encourages an activity on his land does not indicate, however, that it takes place only by virtue of his revocable permission. In brief, neither cutting the grass nor constructing and leaving the seating in place justifies an inference that the owners of the Sports Arena positively granted a licence to local residents and others, who were then to be regarded as using the land by virtue of that licence, which the owners could withdraw at any time. In these circumstances I would conclude that local people used the land nec precario.’
49
It may be worth pointing out that in this passage Lord Rodger is using the term ‘licence’ to refer to a purely gratuitous user of the land, revocable at the pleasure of the owner, i.e., the use of the term ‘licence’ in this sense and context is really a reference to precarium.
50
There is, of course, no question of vis (force) or clam (stealth) so far as the present case is concerned. The fundamental question, therefore, is whether the factory premises were used for the purposes of a right of way openly and in the same manner that a person rightfully entitled to do so would have used it, as, in such circumstances, the claimant may be said to have been using it as of right within the meaning of s. 2 of the 1832 Act and not in the sense of precarium ( i.e., by virtue of the grace and favour of the landowner). Before applying that question to the facts, it may be useful to consider the decision of the English Court of Appeal in London Tara Hotel Ltd. v. Kensington Close Hotel [2011] EWCA Civ 1356, [2012] 2 All E.R. 554, as this is a case with some similarities to the present one.
The decision in London Tara Hotel
51
In London Tara Hotel a roadway linked two hotels and it was used continuously as a sort one way means of access as between the two hotels. The London Tara Hotel granted the Kensington Close Hotel a personal licence in 1973 to use the roadway from ‘year to year’ for the payment of £1. That licence expired in 1980 when the ownership of the Kensington Close Hotel changed. No licence was subsequently granted. The critical thing, however, is that coach drivers and others who used the London Tara part of the roadway to bring guests to the Kensington Close Hotel behaved as if they had the right to do so, even though everyone seemed to have forgotten the fact that given that the licence had actually lapsed upon the change of hotel ownership, they no longer had that right. As Lord Neuberger M.R. then observed ( [2012] 2 All E.R. 554, 562):
‘…..it seems to me that the use of the roadway by KCH and its predecessors cannot be said to have been precario, and therefore, subject to any other argument, as a result of more than twenty years’ such use, a prescriptive right of way arose…. On the facts of this case, this conclusion is reinforced by two further factors. First, there is the fact that the licence provided for a payment of £1 a year if demanded, and it is worth mentioning that this payment was specifically stated to be an acknowledgment that the use of the roadway was under the licence. There was no reason why Tara should not have protected its position as a landowner by enforcing its contractual right to this payment – even if only once every eighteen (or even nineteen) years. Secondly, given that the licence did not extend to coaches, Tara, as a reasonably vigilant landowner, could and should have appreciated that the terms of the licence were not even being adhered to on the ground.’
52
Pausing at this point, it may be observed that London Tara Hotel provides a good contemporary example of where the habitual use of a roadway for the purposes of access and ingress may, with time, ripen into a right of way acquired by prescription. There are nevertheless significant differences between the two cases of which the fact that the taxi drivers and coach drivers who used the London Tara roadway as a means of accessing the Kensington Close Hotel acted as if they had the unquestioned right to do so is perhaps the most significant.
53
Had anyone challenged this user on the part of Kensington Close Hotel in the 1980s or the 1990s and had, for example, questioned the hotel concierge as to the basis upon which they instructed taxis and coaches how to get to the hotel using this roadway, they would doubtless have been informed that by virtue of the contractual licence those accessing the hotel had the perfect right to use the roadway. It is true that this information would have been incorrect – since the licence had in strictness lapsed in 1980 – but what was critical is that the hotel users who accessed the roadway acted as if they had the right to do so. For various reasons which I propose presently to set out I do not think that this is true of the present case. But before doing so, it is next necessary to consider some of the other Irish cases – both pre- and post-1922 – which deal with the concept of precarium.
Some Irish authorities dealing with the concept of precario
54
An old Irish authority dealing with the concept of precarium is Barry v. Lowry (1877) 11 I.R. C.L. 483. The evidence in that case was that the defendant, Mr. Lowry, used an alleged right of way from 1833 to 1874 without interruption. A gate was put up in 1867. The plaintiff’s herdsman gave the key to a Mr. Buckley, telling him ‘here is a key for you to let in people wanting water’, and explaining that the gate was locked to prevent cattle from trespassing. Mr. Buckley gave the key in turn to Mr. Lowry, and Mr. Lowry made a key from it for himself and used this key without hindrance until 1874. Mr. Lowry claimed a right of way by prescription, and the servient owner contended that the use was not as of right because the gate was locked for at least six years. The conclusion of the old Irish Court of Exchequer was that the use was amounted to precario. Fitzgerald B. said ( (1877) 11 C.L.R.Ir. 483,486):
‘It is admitted that for six years of that period, between 1867 and 1874, the gates with which the way is claimed was kept locked by the plaintiff, so that no passage was possible otherwise than by use of a key directly or indirectly procured from the plaintiff. The key appears to have been left with some person in the employment of the plaintiff, who let persons wanting to draw water from the well past, on their application. The defendant appears to have got the use of a key during a part of the period of six years, but his evidence in no way counts as acquiescence in the locking up of the passage by the plaintiff, or his use of it being only through a key directly or indirectly obtained from him.
55
The judgment of Deasy B. is equally illustrative ( (1877) 11 I.C.L.R. 483, 486-487):
When once the landlord locked the gate, that was an interference with the enjoyment as of right. It was an assertion that he had a right to keep that gate locked, and to keep all parties out. The defendant should have thereupon disputed that right. Instead of that, he too, took a key of it from the landlord, that is, prima facie in all events, an acquiescence in the assertion of a right by the landlord, and the subsequent use by means of that key is evidence of a permissive occupation. If the defendant could show that he then asserted a right to pass through the gate to the well, and that the landlord gave his key in order to enable him to exercise that right, that would be different, but there was no evidence of that. It is, prima facie in all events, permission to use the way, and there was no evidence that while he passed through the gate by the use of the key given to him by the landlord to enable him to do so, he did so as of right.’ (emphasis supplied)
56
As Gilligan J. also observed, the concept of precarium was at the heart of the decision of the Supreme Court in Walsh v. Sligo County Council [2013] IESC 48, [2013] 4 I.R. 417, albeit that this decision was in the context of a public right of way. In that case the question was whether the continued usage by the public of the main road through the grounds of Lissadell House in Co. Sligo was evidence from which the existence of a public right of way might be inferred. There was also evidence that the gates to the main road were locked while a shoot was in progress.
57
The joint judgment of Fennelly, McKechnie and MacMenamin JJ. stressed that the use of the public road by the public at most amounted to precarium ( [2013] 4 I.R. 417, 447-448):
User by permission of the owner is not user as of right. At the same time, user without express permission is not necessarily user as of right. Whether particular acts of user are to be described as being as of right requires account to be taken of all the circumstances. Acts may be tolerated or indulged by a landowner vis-à-vis his neighbours without being considered to be the exercise of a right…. The cases concerning toleration contain several indications that owners should not be constrained to be “churlish” and insist on their own property rights. It would be undesirable and inconsistent with the policy of good neighbourliness if the law was so ready to infer dedication of public rights of way from acts of openness and toleration that landowners were induced to act a fortress mentality. Bowen LJ, in a passage in his judgement in Blount v. Layard [1891] 2 Ch. 681, approved by Lord MacNaghten in Simpson v. Attorney General [1904] A.C. 476 at 493 and by Lord Atkinson in Folkestone Corporation v. Brockman, at page 369, proclaimed that: “… nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood.”
Furthermore, Lord Dunedin at page 375 of the report in Folkestone said: “But suppose, on the other hand, you do know the origin of a road. Suppose it is the avenue to a private house, say, from the south. From that house there leads another avenue to the north which connects it to a public road different from that which the south avenue started. This is not a fancy case. The situation is a common one in many parts of the country. Would the mere fact that people could be found who had gone up one avenue and down the other – perhaps without actually calling at the house – raise the presumption that the owner had dedicated his private avenues as highways? The user would be naturally ascribed to good nature and toleration.”
In the same vein, Farwell J in Attorney General v. Antrobus [1905] 2 Ch. 188 at 199, in the context of a claim that there was a trust permitting public rights of access to Stonehenge, wrote of the “liberality with which landowners in this country have for years passed allowed visitors free access to objects of interest on their property …” he added, at page 199, that: “It would indeed be unfortunate if courts were to presume novel and unheard of trusts or statutes from acts of kindly courtesy, and thus drive landowners to close their gates in order to preserve their property.” On the other hand, where there is clear non contradictory evidence of excessive public user for a long time, the landowner will not easily resist the inference of dedication by proof of purely subjective and uncommunicated objection.’
58
When considering the claim to a public right of way over the main avenue, the Supreme Court also said as follows ( [2013] 4 I.R. 417, 461):
‘. … However, it is significant that the main gate was closed and locked at least on the occasion of shoots on the estate. This was accepted by the learned judge. Mr. Bernard Barton, Senior Counsel, gave evidence as a witness, that when he was attending Lissadell for a shoot in or about 1996 he found the gate of the main avenue was locked. There was a notice directing the public to use the Crushmore entrance. Mr. Barton vividly recalled it as it made him late for the shoot and he had friends travelling in a different car and no phone with him. This coincides with the evidence of Mr. Prins to the effect that he closed the main gate on occasion especially during the woodcock shoots and tree felling. These are acts of ownership inconsistent with the existence of a public right of way. The learned trial judge found it significant that Mr. Prins, when explaining these actions, did not suggest that the purpose was to prevent the public from entering onto the estate. That is not necessary. The very act of closing the gate showed that rights of ownership were being exercised.’
What was the nature of the user in the present case?
59
If, then, one applies these principles to the present case can it be said that the user of the access through the factory premises was otherwise than precarium? In my view, taking the evidence in the round, it points overwhelmingly to the existence of an admittedly consistent user which was nonetheless at all times no more than precarium. Several factors impel me to this conclusion.
60
First, there is no evidence to suggest that the McKinneys – or any one visiting them, whether lorry drivers, gardeners or public health nurses – regarded this access over the factory yard from the de Valera road as being anything other than gratuitous on the part of the factory owners. In particular, none of them behaved as if they believed they had the right so to traverse the lands. Had, for example, the factory owners ever sought to block such access this might well have been justly resented by the McKinneys and their visitors as not a very neighbourly act. Yet, at least prior to the running of any prescription period, it could scarcely be supposed that the McKinneys could have opposed this curtailment of access on the ground that they enjoyed a positive legal entitlement to cross the factory yard over and above any gratuitous act on the part of the factory owners.
61
The present case is accordingly different from a case such as Beresford where the fact that the Council had not only tolerated the playing of games etc., but had actually put in seating to enable members of the public to watch. It was these factors which led the House of Lords to the conclusion that the Council had granted members of the public something more than a purely revocable licence, so that their presence was nec precario.
62
Second, the balance of the evidence all suggests that the user in question was tolerated simply as an act of neighbourliness on the part of the factory which was, to some degree, reciprocal in that, as Gilligan J. found, factory employees sometimes used the Oatfield Bungalow driveway entrance on the Ramelton Road and then turned right into the factory premises. Adopting the words of Herbert J. in Orwell Park Management the nature of the user in the present case – whether it be, for example, the accessing of the factory premises by the drivers of the oil tankers or the use of the ‘ride on’ lawnmower by Mr. McCormack – all suggested a casualness which was dependent ‘for its continuance upon the tolerance and good nature’ of the factory owner and was not such as would have put that owner on notice that ‘an actual right to do these things was being asserted.’
63
It is true that Mr. O’Donnell, the factory health and safety officer, directed that a 5 mile an hour signs be placed facing the direction of the de Valera road on the paved road connecting the two properties. For my part, however, I would regard this item of evidence as best ambiguous and not one which necessarily compels the conclusion that this was an unequivocal acknowledgement that Ms. McKinney (or those visiting her) had a positive right to travel from the back of the bungalow through the factory premises and through to the de Valera road.
64
Third, the erection of the gates by the factory at the de Valera road entrance coupled with the fact that the gates were closed at night and at weekends cannot be regarded in the light of the comments of the Supreme Court in Walsh as anything other than the assertion of ownership rights in the respect of the factory, the yard and the factory entrance. As that Court made clear in that case, it is irrelevant in this context that there was no evidence that the object of this was to exclude the assertion of any right of way by the McKinneys: it was sufficient that the rights of ownership were thereby exercised. I appreciate, of course, that the right of way at issue in Walsh concerned an alleged public right of way and not a public right of way as in the present case. But the reasoning of the Supreme Court on this feature of Walsh nonetheless concerned the question of whether the user by the public of the main entrance into Lissadell House could amount to nec precario and the Court ruled decisively that the closure of the gates served to negative the claim that the user by the public was as of right.
65
Neither do I overlook in this context the fact that the McKinney family always possessed a set of master keys for the factory and the gate. But as Gilligan J. pointed out, these keys were either given to Mr. McKinney qua owner and director of the factory premises or, as in the later times, simply for reasons of ensuring access in the case of safety or emergency, in much the same way as householders frequently possess a spare set of keys for their neighbour’s property. No one would suggest, however, that the householder in that example would stand possessed of these keys as of right.
66
The evidence, moreover, shows that these keys were never used and that on a few occasions when the drivers of oil lorries found the de Valera gates locked, the McKinneys arranged to telephone the factory with a request to open them. Likewise, when Mr. McDonald found the factory gates locked, he asked for permission to have them opened to facilitate access to the McKinney garden. Just as in Barry v. Lowry, all of this is consistent simply with a user which is precario only and not as of right.
67
Fourth, the failure on the part of Ms. McKinney to assert a right of way at the time of the sale/purchase transfer in 1999 is also instructive. I appreciate that there may well have been issues regarding her general mental health, but there has been no suggestion to this Court that Gilligan J. was not entitled to find that she had the appropriate capacity to execute this agreement. In these circumstances, it is hard to see the share purchase agreement and the replies to requisition on title as anything other than a positive acknowledgement that no right of way was being asserted and a tacit acceptance that the user of the factory yard for access purposes was simply precario.
Is there an easement of necessity?
68
So far as an alleged easement of necessity is concerned, it is perhaps sufficient to say that an easement of necessity could generally only arise where the dominant tenement would otherwise be landlocked or otherwise unusable, which is simply not the case here as there was at all times access to Oatfield Bungalow from the Ramelton Road. There is no basis for implying an easement of necessity simply because the dominant tenement has access arrangements which might be thought to be less than perfect or because such an easement of necessity might be thought to be convenient for the occupants of Oatfield Bungalow.
Conclusions
69
Summing up, therefore, since I am of the view that the user in the present case was at all times precario, the defendant accordingly cannot establish that the user was as ‘of right’ within the meaning of s. 2 of the 1832 Act. Gilligan J. was accordingly correct to hold that the defendant had not established any right of way by prescription through the factory yard and premises in favour of Oatfield Bungalow.
70
It follows, therefore, that the defendant’s appeal must be dismissed.