Chap. VI. Right of support as between adjoining houses. work subjacent mines, but not for the risk of percolation of sewage into the subjacent mines (0). As between two adjoining houses belonging to different owners, a right to lateral support can be acquired by long enjoyment, or under the provisions of the Prescription Act (p). So, also, if a building is divided into floors separately owned, the owner of each upper floor or flat is entitled 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 (q). Where also houses have been so constructed as to be mutually subservient, to and depending on each other, neither of them being capable of standing or being enjoyed without the support it derives from its neighbour, the alienation of one house by the owner of both does not estop him from claiming in respect of the house he retains that support from the house sold which is at the same time afforded in return by the former to the latter tenement (1). Although no right to support may exist as between adjoining houses or buildings, a man who takes down his house must use due care and skill, and take reasonable and proper precautions in pulling down his wall. An action will lie if the wall be pulled down so carelessly, negligently, and unskilfully as to cause damage to the adjacent house or buildings (s). The owner of the premises adjoining those pulled down must shore up his own on the inside, and do everything proper to be done upon them for their protection. If, however, the pulling down. be irregularly and improperly done, and injury is caused thereby, the person so acting may be liable for it, although the owner of the premises injured may not have done all he ought for his protection (t). The mere circumstance of juxta-position does not render it (0) Corporation of Dudley v. Dudley's Trustees, 8 Q. B. D. 86. See, however, the Public Health Act, 1875 (Support of Sewers) Amendment Act, 1883. (p) Lemaitrev. Davis, 19 C. D. 281. (1) Dalton v. Angus, 6 App. Ca. 793, per Lord Selborne. (r) Richards v. Rose, 9 Exch. 218, 221; cf. Howarth v. Armstrong, 77 L. T. 62. (8) Walters v. Pfeil, Moo. & M. 363; Brown v. Windsor, 1 Cr. & J. 26; Trower v. Chadwick, 3 Bing. N. C. 334; 43 R. R. 659; 6 Bing. N. C. 1. (t) Waltersv. Pfeil, Moo. & M. 363. necessary for a person who pulls down a wall to give notice of his intention to the owner of an adjoining wall (u); nor if he is ignorant of the existence of the adjoining wall-as where it is underground—is he bound to use extraordinary care in pulling down his own (x). If he gives notice of his intention to pull down his wall to the owner of the adjoining premises, he is not bound to use any extraordinary care in preventing an injury to the adjoining premises, although, from the peculiar nature of the soil, he may be compelled to lay the foundation of his new buildings several feet deeper than that of the old ones (y). Chap. VI. Sect. 3. A party wall is a wall standing on the line between two Party wall. estates owned by different owners for the use of both estates. The common use of a wall separating adjoining lots of land belonging to different owners is primâ facie evidence that the wall and the land on which it stands belong to both owners in equal undivided moieties as tenants in common (2). A wall may be a party wall to such a height as it belongs in common to two buildings, and may be an external wall for the rest of its height (a). One of the tenants in common may take down the wall, if it be done with the intention of rebuilding it (b), but it must be with that intention (c). Under the Party Wall Act, 14 Geo. III. c. 78, each owner of adjoining premises within the cities of London and Westminster having a common party wall which stands partly on the land of each of them, owns that which is on his own land, and there is no tenancy in common, but each is entitled to certain easements in the wall of the other (). This statute has been (u) Trower v. Chadwick, 6 Bing. N. C. 1. (x) Ib. (y) Massey v. Goyder, 4 C. & P. 161, 34 R. R. 782. (z) Matts v. Hawkins, 5 Taunt. 20; 14 R. R. 695; Cubitt v. Porter, 8 B. & C. 257; 32 R. R. 374; Watson v. Gray, 14 C. D. 195. (a) Weston v. Arnold, 8 Ch. 1084; Drury v. Army and Navy Co-operative Supply Co., (1896) 2 Q. B. 271. K.I. (b) Cubitt v. Porter, 8 B. & C. 257; 32 R. R. 374; Standard Bank, &c. v. Stokes, 47 L. J. Ch. 554. See, as to duty of person taking down a party wall to see that reasonable skill is exercised, Hughes v. Percival, 8 A. C. 443. (c) Stedman v. Smith, 8 E. & B. 1. See Colebeck v. Girdlers' Co., 1 Q. B. D. 242. (d) Matts v. Hawkins, 5 Taunt. 20; 14 R. R. 695. 12 Chap. VI. Sect. 3. repealed, and the law on the subject of party walls within the Metropolitan District (e) is now governed by the London Building Act, 1894 (ƒ). Chap. VI. Sect. 4. Bed of rivers. SECTION IV.-NUISANCES RELATING TO WATER. ANOTHER class of nuisances in which the interference of the Court by way of injunction is often sought, are nuisances relating to water. All acts done by a man on his own land, whereby the rights of his neighbour in water are injuriously affected, or whereby water becomes a cause of damage to the land of his neighbour, may be considered together as nuisances relating to water. Prima facie, every proprietor of land along the margin of a river or stream of running water is the proprietor of the land. covered by the water up to the middle thread of the stream. If the same person be the owner of the land on both sides of the river, he owns the bed of the whole river to the extent of the length of his land upon it (g), and of a landowner in respect of the same. has the usual rights But this is subject to all the rights of the owners above him to have the water flow away from their land, and to all the rights of the owners below him to have the water come to their land as it was wont, and it is also subject to any rights the public may have over it (h). A grant of land bounded upon a stream or river above tidewater carries the soil up to the centre of the stream, unless there is enough in the surrounding circumstances in relation. to the property in question or enough in the expressions of the instrument to show that such was not the intention of the parties (i). If from any cause the course of the stream should be permanently diverted, the proprietors on either side of the old channel have a right to use the soil of the alreus, each of them up to what was the medium filum aquæ, in the same way as they are entitled to use the adjoining land; but no riparian proprietor is entitled to use his property in the alveus in such a manner as to interfere with the natural flow of the stream or to cause an injury to the proprietary rights of any other riparian proprietor (k). There is no distinction in principle between riparian rights on the banks of navigable, and on those of non-navigable rivers. In the former case, however, there must be no interference with the right of navigation, and in order to give rise to riparian rights the land must be in actual daily contact with the stream, laterally or vertically (1). Chap. VI. Sect. 4. A proprietor of land upon the banks of a river or stream of Rights in running water. running water has no property in the water, but has merely a usufructuary interest in the water, as appurtenant to his land. He is entitled to the comfort, enjoyment, and benefit of the water in its natural state, as it flows past his land, as he is to all the other advantages belonging to the land of which he is owner (m). The right does not depend on the ownership of the soil covered by the water, but is appurtenant to the ownership of the bank (n). The rights which a riparian proprietor has with respect to the water in a stream are derived from his (i) Lord v. Commissioners of Sydney, 12 Moo. P. C. 473; Micklethwaite v. Newlay Bridge Co., 33 C. D. 145; Duke of Devonshire v. Pattinson, 20 Q. B. D. 263; Pryor v. Petre, (1894) 2 Ch. p. 25 (C. A.); Tilbury v. Silva, 45 C. D. 98 (C. A.); In re White's Charities, (1898) 1 Ch. p. 664. Cf. Ecroyd v. Coulthard, (1897) 2 Ch. 555; (1898) 2 Ch. 358. (k) Bickett v. Morris, L. R. H. L. 1 Sc. 47; Orr Ewing v. Colquhoun, 2 A. C. 861. See Foote v. Robertson, 6 Dec. of Court of Session, 4th (1) North Shore Railway Co. v. (m) Mason v. Hill, 5 B. & A. 1; 39 R. R. 354; Chasemore v. Richards, 7 H. L. C. 349; Kensit v. Great Eastern Railway Co., 27 C. D. p. 133. (n) Wood v. Waud, 3 Exch. 748; Lord v. Commissioners of Sydney, 12 Moo. P. C. 473; Lyon v. Fishmongers' Co., 1 A. C. 673, 683. Chap. VI. Rights of a riparian proprietor. possession of the land abutting on the water. If a riparian proprietor grants away any portion of his land abutting on the river, the grantee becomes a riparian proprietor and has the rights of a riparian proprietor; but if he grants away a portion of his estate not abutting on the river, the grantee acquired no water rights. A riparian proprietor cannot grant away his water rights apart from his estate so as to place the grantee in the same position with respect to the other riparian proprietors as he occupied himself. If a riparian proprietor grants to one not a riparian proprietor a right to take water from the stream, the grantee cannot maintain an action in his own name against other riparian proprietors. He can only sue the grantor for an interference with his enjoyment (6). A riparian proprietor may grant a license to an owner of land not abutting on the river to abstract water from the stream by a pipe inserted in the stream on the licensor's land, and if after using it the licensee returns it to the stream undiminished in quantity and unpolluted in quality before the stream leaves the land of the licensor, a lower riparian proprietor has no ground of action against the licensee so taking the water against the riparian proprietor from whose land it was taken (p). But a riparian proprietor has a right of action against a nonriparian proprietor who takes water from a stream under a grant or license from a riparian proprietor, if his user of the water sensibly affects the flow or the quality of the water of the stream (q). A riparian proprietor has a right to the fall and flow of the water and to the impelling force of the current for mill or other manufacturing purposes; and as incident thereto he has a right to erect dams, sluices, canals and waterways so as to fit the stream for the actual working of mills; but he may not, in doing so, accelerate the velocity of the current, so as to cause material injury or annoyance to his neighbour below him, who (0) Stockport Waterworks Co. v. Potter, 3 H. & C. 300; Nuttall v. Bracewell, L. R. 2 Ex. 1; Holker v. Porritt, ib. 10 Ex. 61, 63; Ormerod v. Todmorden Mill Co., 11 Q. B. D. 155 (C. A.). (p) Kensit v. Great Eastern Railway Co., 27 C. D. 122. (g) Ormerod v. Todmorden Mill Co., 11 Q. B. D. 155 (C. A.). |