Dalton v Henry Angus & Co

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,

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…