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Wrongs to easement : Right to Support

Of easements, says Goddard, there are two kinds similar to one another in many respects, but differing materially in many important particulars. One kind consists of easements created at the will of a land-owner affected by them for the benefit of a neighbour, and the other of easements given by law to every owner of land, irrespectively of the will of those who may have to bear their burden of them.

The latter rights are inherent in the land ex jure naturae (of natural right) and are usually called “Natural Rights.” They are given by law to every owner of land, irrespectively of any grant by the servient owner, as without them no man would be sure that his land would not, at any time, be rendered useless by his neighbour's otherwise lawful act. They are given for mutual security and therefore from motives of public policy. They are rights for the injury to which an adjoining proprietor is responsible upon the principle sic utere tuo ut alienum non laedas. The purpose of Natural Rights is to secure necessary support for land from the adjacent and subjacent soil, and the due enjoyment of air, light, and water, which, by the provision of nature, flow over the soil of one land-owner to that of another for the common benefit of each. Though Natural Rights are a species of easements, the expression 'easement' is commonly used exclusively to denote the first class of easements (i.e., easements created at the will of a land-owner affected by them); while the second class of easements (i.e., those created by operation of law) are known as Natural Rights.

Easements are distinguished from Natural Rights, inasmuch as the former are founded upon:

  1. a grant, express, or implied; whereas the latter are incident to the possession of realty.

The most ordinary instances of easements are the rights of air or light, of way, and of artificial watercourses. Incident to the property in land is the right to the air or light from above it; but a right to receive light or air from across a neighbour's property may be acquired, so that nothing can be done thereupon, as by building, etc., substantially to interfere with that right.

When easement has once been acquired, it will stand upon the same footing as a Natural Right of property and any infringement thereof will be punished at law either by damages for the unlawful acts, or an injunction to prevent their repetition.

The most important Natural Rights and Acquired Rights (Easements) of property, the invasion of which are treated as wrongs, are:

  1. Right to support of:
    1. Land by land.
      1. Lateral support.
      2. Vertical support.
    2. Buildings by land.
    3. Buildings by buildings.
    4. Land and buildings by water.
    1. Surface water.
      1. Natural streams.
      2. Water standing on the soil or not flowing in a defined channel.
      3. Artificial watercourses.
    2. Subterranean water.
      1. Subterranean streams the courses of which are well known and clearly defined.
      2. Subterranean streams the courses of which are undefined.
      3. Percolating water, the course of which is underground, undefined and unknown.
    1. Public rights of way.
    2. Rights of way belonging to a certain class of persons.
    3. Private rights of way; for
      1. General purposes;
      2. Foot passengers ; and
      3. Sweepers.

Right to support: It may be useful to remember that the right to support referred to in all the following cases is quite independent of any question of negligence.

Damages for injuries to easements

In actions for injuries to easements, such as rights of way, watercourses, light and so forth, no rule can be laid down as to the measure of damages. They will vary in each case, according to the species and amount of injury caused. Frequently, however, such actions are brought where no actual injury has been suffered, to try a right; and the question is whether the plaintiff is entitled to nominal damages. In such cases, the rule may be laid down, that where an actual infringement of right has taken place an action will lie and the plaintiff will be entitled to a verdict with nominal damages, though no real loss has been sustained. Some legal damage, however, will only be presumed where there has been a clear violation of a right.

Support of land by land

Support of land by land may be either:

  1. The lateral support of land by adjacent land, or
  2. The vertical support of the surface by the subsoil, where the property in the two is distinct.

Lateral support

Every proprietor of land is entitled of common right to such an amount of lateral support from the adjoining land of his neighbour as is necessary to sustain his own land in its natural state, not being weighted by walls or buildings.1) If the land has been weighted by superstructure, the landowner who has thus weighted his land is not entitled ex jure naturae, to the additional support from his neighbour's soil necessary for the maintenance of the building; for one land-owner cannot, by altering the natural condition of his land by erecting buildings thereon, deprive his neighbour of the privilege of using his land as he might have done before.2) This right to lateral support is not an absolute right; and the infringement of it is not a cause of action without appreciable damage.3) But a right of support in extension of the Natural Right may be acquired by prescription or grant. The right of support may be destroyed or prevented from arising by covenant, grant, or reservation, but the language of the instrument must be clear and unambiguous.4)

Where A dug a well near B's land, which sank in consequence and a building erected on it within twenty years fell, and it was proved that, if the building had not been on B's land, the land would still have sunk, but the damage to B would have been inappreciable, it was held that B had no right of action against A.5) Where between the land of the plaintiff and that of the defendants there was such an extent of intermediate land as would, if undisturbed, have sufficed to afford the requisite support to the plaintiff's land, but the coal under such intermediate land had been worked out before by some third party, in consequence whereof, when the defendants worked the coal under their own land; subsidence was caused in the surface of the plaintiff's land, it was held that the plaintiff had no right of action against the defendants.6)

Vertical support

There also exists a right of support of land by subjacent land, when the surface and subsoil are vested in different owners.7) The owner of the surface is entitled of common right to the support of the subjacent strata, so that the owner of the subsoil and minerals cannot lawfully remove them, without leaving support sufficient to maintain the surface in its natural state. If the owner of the land grants the sub-soil, reserving the surface to himself, he impliedly grants reasonable means of access to the subsoil, and the grantee would have a right to go upon and dig through the surface, to enable him to reach the subsoil, if he had no other means of access thereto. But the owner of the sub-soil may maintain an action against the owner of the surface, if he digs holes into the sub-soil to a greater extent than is reasonably necessary for the proper and fair use, cultivation and enjoyment of the surface; or if he removes so much of the surface that the mines below are flooded.8)

If the owner of the sub-soil excavates it without leaving proper support for the surface, the owner of the surface has no right of action until some actual damage has been sustained by him.9) But proof of pecuniary loss is not necessary if actual subsidence is proved.10)

A right to trench upon these natural rights of support, as to work so as to cause a subsidence, may exist by clear express grant, or be acquired by a sufficient long user as of right.11)

Support of buildings by land

Support of buildings by land may be either

  1. The support of buildings laterally by adjacent soil; or
  2. The support of buildings vertically by subjacent soil.

The natural right to support exists in respect of land only, and not in respect of buildings; but a right to support for buildings, both from adjacent and subjacent land, may be acquired as an easement.

The right to support of land artificially burdened may be acquired by:

  1. Grant, which may be
    1. express ; or
    2. implied, e.g., as where a man granted part of his land for building.12)
  2. Prescription. In the leading case of Angus v. Dalton, (6 App. Cas. 740), it is laid down that 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 the time; and that 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.

Where a corporation sold a piece of land for building purposes, and the plaintiff to the knowledge of the corporation, dug his foundation to a depth of eight feet and built his house up to the ground floor, and eleven months afterwards the defendants purchased from the corporation the adjoining lot, and carried their foundations lower than those of the plaintiff, it was held that he was entitled to restrain the defendants from excavating so as to let down his house.13) Two dwelling houses adjoined, built independently, but each on the extremity of its owner's soil, and having lateral support from the soil on which the other rested. This having continued for more than twenty years, one of the houses (plaintiff's) was converted into a coach factory, the internal walls being removed and girders inserted into a stack of brick-work in such a way as to throw 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 house was pulled down, and the soil under it excavated to a depth at 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.14)

Indian case: S owned a house, which had stood for sixteen years only, on a piece of land adjoining his land. M, for the purpose of building a house on his said land, laid the foundations. S's land then gave way, there by causing injury to his house. For this injury he sued M for damages, alleging negligence on the part of M in sinking the foundations of his house. On the evidence the Court found that the ultimate cause of the collapse of the ground under S's house was one which was beyond the reach of M. Held that, at highest, S had as against M, a natural right of support to his land, but no right whatever in respect of the buildings imposed on it, unless and until they had been there for twenty years, when an easement of support would be acquired under the Indian Easements Act, 1882; and that the only damages which S could claim would be in respect of the infringement of the right to support of his land. Held, further that before he could recover in respect of the withdrawal of the support of his land, he would have to show that the defendant's negligence was the decisive cause of the giving way of the land.15)

Support of buildings by buildings

Where two houses, erected by different owners, stand in juxtaposition, they in fact stand each on its own ground, and there is no right of support for the one by the other, and it will not necessarily be presumed to have been acquired however ancient the houses. It may, of course, exist by an express grant. That in fact one house leans on the other does not alter the case; there can properly be no user of right unless openly and evidently; and it used to be said that a man by building a weak house cannot impose a duty upon his neighbour, or drive him to pull down his own house or bring an action within a fixed period.16)

But the mere fact of contiguity of buildings imposes an obligation on the owners to use due care and skill in removing one building not to damage the other, even though no right to support has been acquired17) ; but there is no obligation, in the absence of statutory provisions, upon the owner of the building about to be removed to shore up the other building18), or to give the owner of the other building notice of the intention to remove his own.19) Although the fact of contiguity of buildings raises an obligation to use care and skill in removing one not to injure the other, that obligation cannot arise if, from the circumstances of the latter building being underground or otherwise, the party removing the former has no notice of its existence; for one degree of care would be required where no vault or building exists and the soil is left in its natural and solid state, another where there is a vault, and another and still greater degree of care would be required where the adjoining vault is of a weak and fragile construction.20), and it would be impossible to ascertain the precise degree of care required in the absence of notice of the existence of the building.21)

If one man builds two or more houses, each needs the support of the other, and then if he sells one, it is presumed that he reserves for himself and grants to the buyer, the right of mutual support; and so, if he sells several such houses to several persons at different times, each has the same right of support, with regard to the priority of titles.22)

The right established in Dalton v. Angus to a right of support for an ancient building by the adjacent land, equally applies to support enjoyed from an adjacent building, even though both buildings were erected by different owners.23)

Thus, if land not granted expressly for building purposes is weighted with buildings, the owner of the surface has no right to additional support necessary for the maintenance of the buildings until he has acquired the right by grant or prescription; so that if the owner of the sub-soil in working mines leaves sufficient support for the surface, but the land sinks in consequence of the weight of the buildings that have been placed upon it, the owner of the sub-soil is not responsible for the damage done.24) But, if the weight of the buildings has in no way caused the sinking of the land, and the land would have fallen in whether buildings had been erected on it or not, the building on the land becomes quite immaterial, and the defendant is responsible in damages to the extent of the injury done to both houses and land.25) For he will have committed a wrongful act (viz., an act causing the subsidence of his neighbour's land), and will consequently be liable for all damages which might reasonably have been anticipated as the consequence of that act.26)

Damage is necessary to give a right of action.27)

Three contiguous houses in a street visibly leaned out of the perpendicular for upwards of thirty years. A's house leaning on B's. On the expiration of a lease to a tenant, B took down his house, the effect of which, by removing the support, was to cause C's house to fall down; and C's house falling, A's house fell. Held, that the fall of A's house did not give him a, right of action against B, for A had not either a natural or an acquired right to have his house supported by B's through the intermediate house.28)

Support of land and buildings by water

An owner of land has no right at Common law to the support of subterranean water. The right of vertical support does not extend to have the support of any underground water which may be in the soil, so as to prevent the adjoining owner from draining his soil if for any reason it becomes necessary or convenient for for him to do so, the presence of the water in the soil being an accidental circumstance, the continuance of which the land-owner has no right to count upon.29) It is possible that a right to such support as an easement might be acquired.

Some cottages were built on land of a wet and spongy character, the land not having been properly drained; the adjoining land was sold for the purpose of erecting a church, and on excavation for the foundations, the water was drawn from the spongy land, the surface subsided and cracked, and damage ensued to the cottages. Held, that there was nothing at Common law to prevent the owner of land draining his soil if it was necessary or convenient for him to do so, though he might by grant, express or implied, oblige himself to suffer the underground water to remain.30) But, where the plaintiff's land was supported, not by a stratum of water, but by a bed of wet sand or running silt, and the defendants caused the subsidence of the plaintiff's land by withdrawing this support, it was held that they were liable. The above case of Popplewell v. Hodgkinson was held not applicable as it dealt only with support by water.31) Where the defendants by removing the lateral support of their land caused the asphalt or pitch which formed the main ingredient of the plaintiffs' land to melt and ooze forth into their own land and thereupon appropriated it to their own use; it was held that an injunction was rightly granted to restrain them, and that damages were recoverable both for injury caused by subsidence of , the plaintiffs' surface and for loss of the pitch. The case of Popplewell v. Hodgkinson was held not applicable as the underground stratum common to both lands was not water but natural pitch.32)

Humphries v, Brogden
Wyatt v. Harrison
3) , 5)
Smith v. Thackerah
4) , 11)
Rowbotham v. Wilson
Mayor of Birmingham v. Allen
Humphries v. Brogden
Cox v. Glue
9) , 24) , 27)
Backhouse v. Bonomi
Attorney General v. Conduit Colliery Co.
12) , 13)
Rigby v. Bennett
Dalton v. Angus
Sheikh Yacoob v. Moung Ohu Ghine
Solomon v. Vinters Co.
Dodd v. Holme
Peyton v. Mayor
19) , 20)
Chadwick v. Trower
Richards v. Rose
Lemaitre v. Davis
Brown V. Robins
Stroyen v. Knowles
Solomon v. Vinter's Co.
Elliot v. N. E. Ry.
Popplewell v. Hodgkinson
Jordeson v. Sutton & Co.
Trinidad Asphalt Co. v, Ambard

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