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,
(1) 12 Q. B. 739.
(2) 8 E. & B. 123.
(3) 1 Roll. Rep. 430.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.