A well judged case (Angus v. Dalton)

Citation

Anstey, J. (1998), "A well judged case (Angus v. Dalton)", Structural Survey, Vol. 16 No. 2. https://doi.org/10.1108/ss.1998.11016baa.002

A well judged case (Angus v. Dalton)

A well judged case (Angus v. Dalton, 1877)

John Anstey

In a recently published book on Party Wall case law by a well known author (An Introduction to the Party Wall etc. Act, 1996), I said that I could not be bothered to write too much about this case, because I had already covered it extensively in Structural Survey, and referred my readers to this August journal for the full story. Some readers of the book then demanded to know which issue the article had appeared in, and I could not find it. Eventually I discovered that I had written the exhaustive study for an earlier intended legal book which never got completed. I have therefore now re-written that version slightly, and present it for your delectation.

The facts were very simple. Angus altered his premises 27 years before the events, so that his factory was more or less supported by a chimney stack which took the ends of some main girders. Dalton pulled down his property (somebody else's, actually: he was only the contractor) and did some excavation, leaving the stack standing on a pillar of clay which soon collapsed, bringing the whole factory with it. All the argument was about whether the stack had acquired a right of support during those 27 years, since there was no way the servient owner could have stopped the acquisition, except by pulling down his own property and letting Angus fall down sooner. There was some subsidiary discussion as to whether client, contractor, or sub-contractor was liable, but that was very brief and need not concern us.

I must admit that I do not follow just how cases were managed in those days. It seems that a judge heard the case with a jury, and then it passed to a bench of judges for the next stage. Anyway, Lush J heard the case originally, and delivered the first judgment of the Bench. He drew attention to the similarity of support and light, but pointed out that support was the more onerous, because of the difficulty of preventing acquisition of rights. While examining how rights were acquired, Lush J remarked: "I cannot help thinking that the revolting fiction of a lost grant may now be discarded." Over 100 years later, his wish has still not been granted.

Another point of discussion referred to by Lush J was the difference of opinion between the Exchequer Chamber (whoever they were) and the Court of Queen's Bench as to whether the Statute of Limitations ran from the time when the wrong was committed or the time the damage actually occurred. As we know, that one has not finally worked itself out yet, either, and seems to change with each successive leading case.

Having examined all the cases, he decided that the factory was "ancient", and found for the plaintiffs, that they had a right of support.

Cockburn CJ gave the second judgment, and said that the case was of "very great importance as regards the law of easements". He was the historian of the party and, after also deploring the fiction of the lost grant, examined the way in which prescription had developed. Different rights were, apparently, referred back to different dates. Until 1235, most rights had to be shown to date from before 1100. By the Statute of Merton, 1235, writs of right (it goes without saying that I do not understand half of this: I'm just passing it on, undigested) were limited to the time of Henry II, 70 years before writs of mort d'ancestor were not to pass the last return of King John from Ireland, a period of 25 years; and writs of novel disseisin were not to pass the first voyage of the King into Gascony, 15 years before. In 1275, the Statute of Westminster fixed new periods of limitation. Writs of right were limited to the time of Richard I, 1189; novel disseisin stayed where it was in Gascony; but writs of mort d'ancestor, cosinage, of aiel, and of entry were limited to the coronation of Henry III, about 58 years.

Nobody then thought it worthwhile changing the date of prescription, even when, in Henry VIII's time, some of the other dates were altered. James I's reign brought another statute affecting limitation for possessory action, and there the law stayed until the time of William IV, not one of England's most memorable Kings, and the Prescription Act, 1832, which we all know and love. So much for history.

Cockburn CJ and I have at least one thing in common: we both think that the Prescription Act could have been better worded. Perhaps having got the Party Wall Act on the Statute Book, I ought to turn my attention to the Prescription Act. The Lord Chief Justice went so far as to describe it as "this strange and perplexing statute". I feel a lot better about my difficulties with it now. He thought, and I think, that it would have been much more helpful to have had a series of fixed periods of prescription, and no other claims to be allowed except on production of positive proof of title ­ presumably written. He concluded that "by this roundabout and...somewhat clumsy contrivance" (referring to the Act) "twenty years' user or enjoyment was rendered a presumption juris et de jure".

After much citing of cases, he concluded that as Dalton (or rather his client the Commissioners of Works and Buildings) had never granted a right of support or assented to Angus's construction the right was open to be rebutted, and he found for the defendants. Fortunately for us, Mellor J concurred with the Lord Chief Justice in nine lines. The case went to the Court of Appeal.

Thesiger LJ (doubtless an ancestor of the famous representatives of the clan today) also dwelt upon the fiction of the lost grant, though he was by no means as opposed to it as some of his fellows. After examining the remarks of the LCJ in the court below, in a sentence rife with double negatives, he agreed that the right of support was a bit different from all others, except perhaps light. Although we are only in the middle of his judgment (after 13 pages!), he then summed up the question and effectively gave his decision. "Can it properly be said, then, that the difficulty or practical impossibility of obstruction in the case of the easement of support for a building by soil is such as to place it at common law in an entirely different category from other easements, and to render it subject to any real legal distinctions? I think not."

Having reviewed the authorities, Thesiger LJ was satisfied that, for over 100 years, the courts were of the opinion that a right of support could be achieved by proof of uninterrupted enjoyment for 20 years. Accordingly, he gave judgment for the plaintiffs, unless the defendants wanted a new trial. This is another bit of old-fashioned legal proceedings that I do not follow.

Cotton LJ gave the next decision, and argued that 20 years' enjoyment did not raise an absolute right, but a presumption which could still be defeated by such matters as the incapability of the grantor. The fact that there was no grant (which all admitted) did not defeat the presumption. He pointed out that enjoyment still had to be open. (Much to my surprise, no one quoted nec vi, nec clam, nec precario in so many words). He was not sure that the mode of enjoyment had been known to the servient owners, and thought that Lush J should have left that matter to the jury. For that reason, he, too, thought that the defendants could have a new trial ­ presumably on that point, the Court of Appeal having laid down the law on the right of support.

Finally, Brett LJ delivered his speech. He pointed out that, despite their differing views on the proper verdict, the Queen's Bench had agreed on a great deal: that the right to lateral support for buildings is not a right of property; it can exist as an easement; it can only have its origin in a grant; that it is not covered by the Prescription Act; and that 20 years' enjoyment after knowledge by the adjoining owner was enough to secure the right ­ in the absence of other defects in the right.

He summed up the differences by saying that Lush J thought that, as a matter of law, after 20 years' enjoyment without physical obstruction, the right could not be defeated by the absence of a grant, or lack of knowledge by the defendant, or mere verbal objection. The other judges thought that the 20 years was only prima facie evidence of a grant, but that if there was doubt about it, it should be left to the jury, while if there was certainly no grant, judgment should be for the defendants.

He dismissed the claim, still being run by Angus's side, that support was a natural right in property ­ which would have given them a win by a knockout. In dealing with the next question, he pointed out that if a man erected a house with windows on the very extremity of his land, he needed no grant to do so. He only needed a grant if he wanted those windows to remain unobstructed. By 20 years of imposing this additional burden on next door's land, he can achieve this putative grant, and the case with support is like unto it. The additional burden of the weight of the house prescribes for its right over time. He agreed with all the points on which the Queen's Bench were agreed, and then turned to the points on which they differed.

Lush J, in the opinion of Brett LJ, went too far in his "bold step" of holding that 20 years' enjoyment in itself confers a right. The jury should be allowed to find whether there was a grant lost or otherwise. Brett seized on Lush's use of the words "revolting doctrine" to support the view that there must be a matter for the jury to decide. Use from time immemorial must make a jury find for prescription; use for a length of time is only evidence on which they can make their own decision.

Brett LJ then reiterated all the points on which he and the Queen's Bench were agreed, and then held, for himself: that if there was no evidence led about the impossibility of the existence of a grant, the jury had to be directed to find a lost grant; if there was doubt as to the notice to the adjacent owner or the existence of a grant, it should be a matter for the jury; and if there was not sufficient evidence of the building having existed for 20 years, or if there was positive evidence that there was no grant, then the defendant was entitled to win. On the evidence, there was no grant, therefore he would uphold the Queen's Bench.

You may have followed all the foregoing with difficulty, but I have tried to condense nearly 100 pages of legal argument into one short article. It took approximately 23 judgments to reach this conclusion (I say "approximately", because I get the number of judges different every time I count them, and some of them figure more than once) and to summarize all their views into readable length is extremely difficult. I am not even sure that I have managed to do so, but at least readers of the Party Wall book will now be able to find the Structural Survey article.