018-NLR-NLR-V-26-PEDRIS-et-al.-v.-BATCHA-et-al.pdf

This is an uncommon sort of action. The plaintiffs and defend-ants are adjoining landowners. The plaintiffs claim damages fromthe defendants for loss of lateral support to their land. The landsare situated in Colombo, and both extend from Silversmith street toQuarry road—the frontages abutting on Quarry road being hilly.The first defendant gave a building lease, to the second defendant to-build on the space fronting Quarry road after cutting down the hill.The defendant cut down the hill right up to the plaintiffs' boundaryto a depth of about 15 feet and to a length of 42J feet along theboundary. The plaintiffs land adjacent to this excavation is bareland, and although two years have elapsed since the excavation,there has been no subsidence or landslip. But the. plaintiffs haveproved that this part of their land has become unfit to support abuilding, if a building be put up within seven feet of their boundary.The most reasonable use and the only use to which the plaintiffs'land can be put is to build on it.
The learned District Judge has held, following the English deci-sions, the most important of which is Dalton v. Angus {supra); that anadjacent landowner is only entitled to the lateral support of his land
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•unburdened with any buildings. He has also held that if theplaintiffs' land so unburdened suffers from the absence of lateralsupport, he could bring an action if, land when, any damage arises:Bonomi v. Backhouse (supra). As there had been no such damage yet,he has dismissed the action. The plaintiffs appeal, and it is con-tended for them that the right of the parties should be decidedaccording to the Roman-Dutch law, and that under that law theright of lateral support extends to the support of the neighbour’sland burdened with buildings, and that inasmuch as their landhas become insecure for building purposes, they are entitled to•damages and to obtain security against any damages they maysustain hereafter.
The right of lateral support is one of the natural incidents ofownership of land. It is not a right in the nature of a servitude or•an easement, but a natural right—a part of the right of propertyitself—each adjoining owner being entitled to lateral support of his.land and bound to respect that right on the part of the other:Humphries v. Brogden 1 and Howley Park Coal and Cannel Co. v..London and North-Western Railway Co,2
This principle of lateral support is according to Lord Cranworth
common to every system of jurisprudence.” There is, however,•very little authority, if any at all, in the Roman-Dutch law recog-nizing this right. This is attributed to the absence of hilly landsand mines, and consequently of the necessity for deep excavations.in Holland.
But the South African Courts, relying on the Roman law andauthorities from countries whose laws are derived from the Romanlaw, viz., the Code Civile of France, the law of Scotland, Ac., haveheld that the right to lateral support from adjacent land is recog-nized by the Roman-Dutch law (Nathan, vol 1., section 704).
The principal case in which this point was decided: London andSouth African Exploration Co. v. Rouliot (supra) is not availablelocally. The Roman law (Digesjt 10, 1, 13) reproduced in Voet 10i1, 12 required that certain specified distances should be kept betweenbuildings, walls, fences, and plantations, and neighbouring bounda-ries, but these distances have been altered according-to Voet byrules passed in different places in Holland. Under the old Frenchlaw (Domat’s Civil Law, book 2, section 21):—
“ The proprietor or other possessor of lands in making a planta-tion, or building, or other work ought to keep the distancesbetween his work and the confines, according as ‘they areregulated by custom or usage. And if he transgressestherein he will be obliged to demolish his building, pluckup his plantation, and restore things to the condition inwhich they ought to be, and to make good the damageswhich his undertaking shall have occasioned.”
* (1850) 12 Q. B. 739.* (1913) L.R. A. C. 21.
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Javbwar-
dsheAJ.
Pedtris v.Batcka
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The Code Civile, section 674, embodies the same principles andobliges a neighbour to leave the distances prescribed by particularregulations and usages to avoid injury to his neighbour. These-rules, it is to be noted, do not proceed upon the recognition of theright of lateral support as a right which imposes reciprocal obliga-tions, but upon usages, and customs, or local regulations broughtinto existence by the necessities of circumstances. They do notassist us to decide on principle the claim put-forward here by the-plaintiffs. But the law of Scotland which is an off-shoot in manyrespects of the fioman law, and has been invoked as authoritative-in South Africa, affords us valuable guidance. The law of Scotlandand that of England on this point are said to be the same. Thus inrHowley Park Coed and Cannel Co. v. London and North-WesternRailway Co. (supra), Lord Shaw of Dunfermline, a great Scotch,lawyer, said:—
So far as Scotland is concerned (and the laws of the two countries:on this particular point are the same) the whole of this-doctrine is brought to a focus in the passage as re-adjustedby that very learned editor., Mr. Guthrie, in his latestedition of Bell’s Principles, s. 965: 4 A proprietor’s abso-lute use of his land is limited by neighbourhood, so far ashe is obliged to afford to his neighbour’s property such-support as its natural situation in relation to his requires.
. So far at least as the natural loil is concerned, the*reciprocal right of support exists as a common law right,,incident to the ownership .of- land both in England andScotland; the rules of law in both countries being the same,whether the support required is lateral as in the ordinarycase of adjoining superficial estates or vertical when the*mineral strata are separated from the estate in the surface.’
Now, what is the law of England on the point? It may be*shortly stated thus: — 1 2 3
(1)As between co-owners of coterminous properties there is areciprocal right to lateral support for their respective landsunburdened with any buildings.
(2)An owner of land has no natural right to support for buildingsor for the additional weight which the buildings cause.
(3)But when buildings have stood on a land for over twentyyears—the prescriptive period—the owner of the building acquires-a right of support in respect of the building also,
This distinction between “ ancient buildings, " that is, buildings'-that have stood for over twenty years and ” modem buildings;”that is, buildings that have stood less than twenty years, is not easyto appreciate. It was the subject of much discussion in the leadingcase of Dalton v. Angus (supra) before the House of-Lords. But it?
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Jaybwab-DENE A.J.
Pedtia t>.Bateka
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has always been maintained, and is justified on the ground that byreason of the building having stood for over twenty years its owneracquires a right by way of easement by prescription. The effectof this decision was thus stated by Lord Penzance in that case: “ Itis the law I believe, I may say without question, that at any timewithin twenty years after the house is built the owner of the adjacentsoil * m£y with perfect legality dig that soil away and allow hisneighbour's house, if supported by it, to fall in ruins to theground."
The same principle has however been held applicable in India. Ifthe law of Scotland is the same as the English law, which I havestated above, there is no reason why the English law should not beheld applicable in Ceylon. There is one decision to be found in ourreports in which the principle of the English law on this point hasbeen applied: Weerasiri v. Sanchihamy (supra). In that case theplaintiff alleged that his right to lateral support for his land, whichhad a building constructed on it, had been interfered with by thedefendants’ intestate wrongfully cutting away the earth immediatelyadjoining the plaintiff’s land without leaving proper and sufficientsupport for the plaintiff’s premises, and claimed damages. Lawrie J.said:—" The plaintiff alleges that he had a right to lateral supportfor his land by the deceased intestate’s land, and also that he hadgained by prescriptive possession an easement of support forbuildings.
“ It was urged that the plaintiff had not proved that he hadacquired, this easement by prescription. It seems to me that theplaintiff proved that a wall and a flight of steps on his land were inexistence for at least fifteen years prior to the committing of thewrong complained of, and I am of opinion that the plaintiff acquiredthe prescriptive right alleged;" but he dismissed the plaintiff'saction on the ground that the defendant, as administratrix, was notliable for a tort of the deceased.
Withers J. said:—‘>1 prefer to rest my opinion on the other pointpressed upon us by Mr. Wendt, viz., that plaintiff has not provedwhat he averred, that he had acquired a prescriptive- right to thelateral support of the wall which, according to the learned Judge,fell in consequence of the intestate’s dealing^ with the adjacent soilof his own properly,”
This case is, in my opinion, a clear authority for the principlethat lateral support for a wall or building can only be acquired byprescription as under the English law. But Mr. Hayley contendsthat the Roman-Dutch law as prevailing m South Africa, whichought to be accepted here, is different, and (1) that the right oflateral support of a land burdened with a building is acquired assoon as the building is constructed; and (2) that this natural rightincludes the right of support of any buildings which may at some
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Javbwah-DBKB A^T.
Pedris v.Balcha
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Jayhwar-X>ENB A* J
JPedris v.Batcha
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future time be constructed on it, if such building is the proper andreasonable use of the land.
He relies on a passage in Maasdorp Institute* of Cape Law, vol. H.,p. 98, which is as follows:—
“ Whether this right to lateral support is restricted to tlfe landin a state of nature merely, or whether it'is extended alsoto land which has been built upon, has not been decidedby the Courts of this Colony; but it was decided by tireHigh Court of the South African Republic in one casethat the right to lateral support attaches also to buildingserected by a man close to the boundary of his ground, thedecision being based mainly upon Voet 39, 1, 1 and D 39 ;2, 14, 12.
The report of the South African case referred to in this passage,Johannesberg Board of Executors and Trust Go. v. Victoria Buildings(supra) is not available locally, and the short note of it in Bisset andSmith’s “ Digest of South African Case Lato ” is not very helpful.Nathan, vol. I., section 704, refers to this case, but does not say it is anauthority for the proposition that the right to lateral supportattaches to buildings. However that may be, it does not, at anyrate, support Mr. Hayley’s second proposition that the right tolateral support extends to any buildings that might' be constructedin the future. Such a right would be of a very variable character,and its burden would increase or decrease according to the weight•of the building.
For what kind of building is the landowner to make allowance in•cutting down his own ground ? It would be, to say the least of it,very unreasonable to impose such an obligation. No authoritywhatever can be adduced in support of such a claim, and no authori-rity could be expected to exist, as the cause of action in such actionsarises only where any damage takes place.
That such is the English law is perfectly clear (Bonomi v. Back-home (supra) ), and this seems to be the case under Roman-Dutchlaw also, for in the passage from the judgment in the London andSouth African Exploration Co. v. Rouliot (supra) De Villiers C. J.said: “ The principle as to-the right of support being once admitted,the removal of such support, followed by damages, must have been awrong for which the action in factum lay.” The underlying prin-ciple being that a landowner may lawfully 'dig upon his own groundto any depth he pleases, provided he causes no . damage to hisneighbour.
In The Darley Main Colliery Co. v. Mitchell1 Lord Halsbury said:
It is clear no action would lie for excavation. It is not, therefore,a cause of action; that case Bonomi v. Backhouse (supra) establishedthat it is the damage and not excavation which is the cause ofAction.”'
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As Lord Macnaghton said in West Leigh Colliery Co. v. Tunnicliffeand Hamp8ont Ltd. (supra) when dealing with a similar point: “ Thedamage, not the withdrawal of support, is the cause of action.. . . ” If this be so, it seems to follow that depreciation in
the value of the surface owner's property brought about by theapprehension of future damage gives no cause of action. In thesame case Lord Ashbourne said:—
The excavations in themselves give no right of action. It isonly the damage caused to the respondent's right of enjoy-ment of their properly by a subsidence caused by theexcavations that gives any right of action. Before any sub-sidence it might be that the known axcavations and thefears resulting therefrom would cause a depreciation inthe value of the property for which no action would lie.The fear of a subsidence, although founded on the knownfact of extensive excavations, cannot give any cause ofaction even although there may have already a sub-sidence. * ’
But Mr. Hayley strongly relies on the concluding passage inVoet 39, I, II, intituled 44 De opens novi nunciatione ” (an informa-tion lodged respecting a work undertaken by another to one'sinjury), which he says supports the plaintiffs' claim for damages notyet sustained. That passage runs as follows: *4 Plane si quis tarnalte fodiat in suo9 ut paries vicini propter labefactatum fundamentumstare non possit, damni infecti nomine cavere compellitur; eo quodpublici aspectus ratio ac favor non patitur, ita minis urben deformari. ”Whatever support this passage might give to the first part of Mr.Hayley's contention, it lends no support whatever to his secondcontention, for the wall there referred to was in existence at^the-time the neighbour dug out his soil, and there is no passage in thistitle which warrants its extension to walls or buildings still to comeinto existence.
There is a further point which is fatal to the claim of the plaintiff.According to Voet (.XI, '12) the Roman-Dutch law did not adoptthe rules laid down in the Roman law as to the extent of spacesbetween buildings, but this depended oh the Municipal regulationsof the town in which the buildings were and partly on judicialdecisions. In Ceylon there are no customs or usages regulatingthese distances, but there are building laws which regulate them.
The effect of rule 4 of the schedule to the Housing of People andImprovement of Towns Ordinance, No. 19 of 1915, which provides,a standard for buildings, rooms, and streets, is to. require an externalopen space of not less than 1 feet in width from the external wallabutting on the open air. The result is that the plaintiff cannotbuild within 7^ feet of their boundary. By reason of the defendants''
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jAnvis-denb A.J.
Pedrisv.Bateha
'11 A. C. 127.
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Jaykwah-DM AX
Pedris v.Batcha
excavations any building on the plaintiffs' land within 7 £6et of hisboundary would be insecure. Any building outside the 7-foot spacewould not be effected by the diminution of lateral support causedby the excavations.
Therefore, no building that the plaintiffs can construct accordingto the building laws would be affected by what the defendants havedone. The plaintiffs can, consequently, suffer no damage, and canhave no cause of action against the defendants. This action has, inmy opinion, been rightly dismissed, and the appeal is also dismissed, 'with costs.
Garvin A.J.—,
The law on the point with which we are here concerned has beenwell settled in England by a long series of judicial decisions. Theunderlying principle is the principle of the Civil law " Sic utere tuo.ut alienum non Icedas.” This principle has been applied anddeveloped by the Judges of the English Courts. Unfortunately,no such development appears to have taken place in the countriesgoverned by the Roman-Dutch law, though the principle applicableto cases such as this is the same as in England. The plaintiffs’land has not as yet sustained any damage. Nor is there any reasonto suppose that any damage will be sustained if the land is left in itsnatural state. What the plaintiff fears is that he will not be ableto erect a building-on so much of the land as lies within 7 feet ofthe boundary.
It is quite clear that the English law recognizes no right to lateralsupport for any building which an owner may desire to erect on hisland. I agree with .my brother that this is a case to which theprinciples of the English law should be applied. Whether we shouldfollow the English law where actual damage has been caused to anexisting building by works of excavation carried out at the instanceof an adjacent landowner is a question which does not arise.
Appeal dismissed.