Charles Dalton Appellant AND Henry Angus & CO. Respond PDF

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Date and Time: Monday, 14 December, 2020 11:07:00 PM MYT Job Number: 132153878

Document (1) 1. CHARLES DALTON APPELLANT; AND HENRY ANGUS & CO. RESPONDENTS. THE COMMISSIONERS OF HER MAJESTY'S WORKS AND PUBLIC BUILDINGS APPELLANTS; AND HENRY ANGUS & CO. RESPONDENTS (1881) 6 App.Cas. 740, (1881) 6 App.Cas. 740 Client/Matter: -NoneSearch Terms: Dalton v. Henry Angus & Co (1881) 6 App Cas 740 Search Type: Natural Language Narrowed by: Content Type UK Cases

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Public Works Comrs v Angus & Co, Dalton v Angus & Co Overview 844

| (1881) 6 App Cas 740, 46 JP 132, 50 LJQB 689, 30 WR 191,

| [1881-5] All ER Rep 1,

| 44 LT

CHARLES DALTON APPELLANT; AND HENRY ANGUS & CO. RESPONDENTS. THE COMMISSIONERS OF HER MAJESTY'S WORKS AND PUBLIC BUILDINGS APPELLANTS; AND HENRY ANGUS & CO. RESPONDENTS (1881) 6 App.Cas. 740 [HOUSE OF LORDS.] LORD COLERIDGE, THE LORD CHANCELLOR (Lord Selborne), LORD PENZANCE, LORD BLACKBURN, and LORD WATSON. 1881 June 14. Easement — Support of House by adjoining Soil — Prescription — Prescription Act, 2 & 3 Will. 4, c. 71, s. 2 — Principal and Agent or Contractor — Liability of Principal for Acts of Contractor. A right to lateral support from adjoining land may be acquired by twenty years' uninterrupted enjoyment for a building proved to have been newly built, or altered so as to increase the lateral pressure, at the beginning of that time; and it is so acquired if the enjoyment is peaceable and without deception or concealment and so open that it must be known that some support is being enjoyed by the building. Semble, per LORD SELBORNE, L.C.:- Such a right of support is an easement within the meaning of the Prescription Act, 2 & 3 Will. 4, c. 71, s. 2. , and having lateral support from the soil on which the other rested. This having continued for much more than twenty years, one of the houses (the Plaintiffs') was, in 1849, converted into a coach factory, the internal walls being removed and girders inserted into a stack of brickwork in such a way as to throw much more lateral pressure than before upon the soil under the adjoining house. The conversion was made openly, and without deception or concealment. More than twenty years after the conversion the owners of the adjoining house employed a contractor to pull down their house and excavate, the contractor being bound to shore up adjoining buildings and make good all damage. The contractor employed a sub-contractor upon similar terms. The house was pulled down, and the soil under it excavated to a depth of several feet, and the Plaintiffs' stack being deprived of the lateral support of the adjacent soil sank and fell, bringing down with it most of the factory:-

Held, that the Plaintiffs had acquired a right of support for their factory by the twenty years' enjoyment, and could sue the owners of the adjoining house and the contractor for the injury. Bower v. Peate (1 Q. B. D. 321) approved.

THESE were two appeals from a judgment of the Court of Appeal.

Page 2 of 60 CHARLES DALTON APPELLANT; AND HENRY ANGUS & CO. RESPONDENTS. THE COMMISSIONERS OF HER MAJESTY'S WORKS AND PUBLIC BUILDINGS APPELLANTS; AND HENRY ANGUS & CO. RES.... [*741] The action was brought by Angus & Co. against Dalton and the Commissioners of Her Majesty's Works and Public Buildings for damages in respect of injuries to the Plaintiffs' coach factory, and was tried before Lush, J., at the Newcastle Summer Assizes, 1876. The facts proved at the trial are stated in the judgments of Lush, J., and Cockburn, C.J. (1), and of Thesiger and Brett, L.JJ. (2). For the present report the facts stated in the headnote suffice. Lush, J., at the trial, directed the jury to find a verdict for the Plaintiffs for the damages claimed, subject to a reference as to the amount. The Queen's Bench Division (Cockburn, C.J., and Mellor, J., diss. Lush, J.), ordered judgment to be entered for the Defendants (1). The Court of Appeal (Cotton and Thesiger, L.JJ., diss. Brett, L.J.), reversed this judgment, and ordered that the Defendants should elect within fourteen days whether they would take a new trial, and, if they did not so elect, that judgment should be entered for the Plaintiffs for £1943, the damages assessed by the special referee, but without prejudice to the Defendants' proceedings in reference to the amount of damages (3). Upon the appeals the following counsel appeared. Sir F. Herschell, S.G., and Wheeler, for the Appellant Dalton. Sir J. Holker, Q.C., Shield, and A. E. Gathorne Hardy, for the Appellants the Commissioners. Littler, Q.C., Gainsford Bruce, and E. Ridley, for the Plaintiffs, Respondents. The appeals were first heard Nov. 13, 14, and 17, 1879. In pursuance of an order of the House they were again heard Nov. 18, 19, 22, and 23, 1880, in presence of the following Judges: Pollock, B., Field, Lindley, Manisty, Lopes, Fry, and Bowen, JJ., to whom the following questions were put:1. Has the owner of an ancient building a right of action against the owner of lands adjoining if he disturbs his land so as to take away the lateral support previously afforded by that land? (1) 3 Q. B. D. 85.

(2) 4 Q. B. D. 162.

(3) 4 Q. B. D. 162, 204.

[*742] 2. Is the period during which the Plaintiffs' house has stood, under the circumstances stated in the case, sufficient to give them the same right as if the house was ancient? 3. If the acts done by the Defendants would have caused no damage to the Plaintiffs' building as it stood before the alterations made in 1849, is it necessary to prove that the Defendants or their predecessors in title had knowledge or notice of those alterations, in order to make the damage done by their act in removing the lateral support, after the lapse of twenty-seven years, an actionable wrong? 4. If so, is it sufficient to prove knowledge or notice of the fact that such alterations were made, or is it necessary also to prove knowledge of their effect, in causing the buildings so altered to require a degree of lateral support from the adjoining land which was not before needful?" 5. Was the course taken by the learned Judge at the trial, of directing a verdict for the Plaintiffs, correct, or ought he to have left any question to the jury?

Page 3 of 60 CHARLES DALTON APPELLANT; AND HENRY ANGUS & CO. RESPONDENTS. THE COMMISSIONERS OF HER MAJESTY'S WORKS AND PUBLIC BUILDINGS APPELLANTS; AND HENRY ANGUS & CO. RES.... The Judges desired time to consider, and on the 17th of March, 1881, delivered the following opinions:"POLLOCK, B. My Lords, in answering the first question, it is necessary to bear in mind that it is not affected by any of the modern statutes whereby a prescriptive right can be gained by effluxion of time or by enjoyment; nor do I think that any useful arguments can be adduced by way of analogy from such statutes. It appears to me, however, that by a long series of decisions, and by the opinions expressed by learned Judges during a period extending over very many years, the common law affecting this question must be taken to have been settled in favour of the right. The right to lateral support of soil by adjoining soil is a natural right which exists wherever the lands of adjoining owners are in contact. The grounds upon which it is based are fully explained in the cases of Humphries v. 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.

[*743] 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. Jollard as law, and ruled that if there were twenty years enjoyment by the Plaintiff of the support of the house from the Defendant's land, and it was known that the Defendant's land supported the Plaintiff's house, that is sufficient to give him a right of support. Both these cases were cited as authorities by Lord Campbell in Humphries v. 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 ____________

Page 4 of 60 CHARLES DALTON APPELLANT; AND HENRY ANGUS & CO. RESPONDENTS. THE COMMISSIONERS OF HER MAJESTY'S WORKS AND PUBLIC BUILDINGS APPELLANTS; AND HENRY ANGUS & CO. RES.... (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.

[*744] 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.

Page 5 of 60 CHARLES DALTON APPELLANT; AND HENRY ANGUS & CO. RESPONDENTS. THE COMMISSIONERS OF HER MAJESTY'S WORKS AND PUBLIC BUILDINGS APPELLANTS; AND HENRY ANGUS & CO. RES.... (4) 2 Car. & Kir. 250. (5) 9 Ex. 708. (6) 6 E. & B. 593; 8 E. & B. 123; 8 H. L. C. 348.

[*745] 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 Statute of Limitations 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.

[*746] 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

Page 6 of 60 CHARLES DALTON APPELLANT; AND HENRY ANGUS & CO. RESPONDENTS. THE COMMISSIONERS OF HER MAJESTY'S WORKS AND PUBLIC BUILDINGS APPELLANTS; AND HENRY ANGUS & CO. RES.... easement, but is the common right of an owner of land not to be injured in his property by the way in which the Defend...