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Мар.

Boundaries.

Duty of

tenant.

Commission

to ascertain boundaries.

the occupation, as having been lately or being now in the occupation of a certain named person; such descriptions are taken generally as intended for the purpose of identifying the property only, and not of limiting or extending the operation of the instrument (ƒ).—Land may be more exactly identified by setting out the abuttals or boundaries; and this in modern conveyances is usually done by reference to a map or plan with a schedule of the parcels annexed to the deed or instrument (g).

The boundaries of adjacent properties, as between independent owners, are protected by the ordinary legal remedies against adverse entry and possession, and for the recovery of land. There is no special obligation upon such owners, and no special jurisdiction of the Court in regard to the boundaries. "The Court will not interfere between independent proprietors and force one of them to have his rights tried and determined in any other way than the ordinary legal mode. Confusion of boundaries furnishes, per se, no ground for the interposition of the Court” (h). But in certain relations of adjacent owners there arises a special obligation to preserve the boundary; as in that of landlord and tenant. "A tenant contracts among other obligations resulting from that relation, to keep distinct from his own property during his tenancy, and to leave clearly distinct at the end of it, his landlord's property, not in any way confounded with his own" (i). This obligation is enforced by a special jurisdiction of the Court to issue a commission to ascertain the boundaries if possible; and if it be found impossible, to set out so

(f) Martyr v. Lawrence, 2 D. J. & S. 261; Doe v. Burt, 1 T. R. 701.

(g) Llewellyn v. Jersey, 11 M. & W. 183; Barton v. Dawes, 10 C. B. 261; Squire v. Campbell, 1 M. & Cr. 478; Willis v. Watney, 51 L. J. C. 181.

(h) Eldon, L. C. Speer v. Crawter, 2 Mer. 417; Miller v. Warmington, 1 J. & W. 492; Bute v. Glamorgan Canal, 1 Phill. 684. As to fencing boundaries, see post, p. 253.

(i) Eldon, L. C. A.-G. v. Fullerton, 2 V. & B. 264; Spike v. Harding, L. R. 7 C. D. 871; 47 L. J. C. 323.

much of the tenant's own land as shall be equal in value to that originally granted or leased (j). By consent of the parties the Court will direct an inquiry in chambers to ascertain the boundaries; and the Court will grant discovery and inspection of documents in aid of the jurisdiction (k). "The relief is founded on misconduct analogous to a breach of trust. If the person having such particular interest suffers the boundaries to be confused, so that the reversioner or remainderman cannot tell to what land he is entitled, the Court will give relief by compelling the person who has occasioned the difficulty to make good, out of that which may be considered a common fund, that portion of it which belongs to another" (7). The obligation runs with the land, and the relief is given not only against the person guilty of the neglect, but against all those who claim under him, either as volunteers or purchasers. But in order to claim the relief it is essential to establish by admission or by evidence that the party charged in fact possesses the land lost by confusion of boundaries. It is not sufficient to show that he has acquired and holds a part of the estate with which it has been confused, without showing that the part which he holds contains the part which is lost (m). -The same obligation exists in copyhold tenure. The Tenant of copyholder who holds freehold land of the same manor is copyhold. bound to keep the boundaries distinct, and in case of confusion, the lord is entitled to have a commission to ascertain the boundaries, or to set out as much of the freehold as is of equal value with the copyhold lost. "The confusion of boundaries does not infer any negligence on the part of the lord; for the tenant is in possession of the land" (n).

(j) Speer v. Crawter, 2 Mer. 418; Willis v. Parkinson, 2 Mer. 507; 1 Swanst. 9.

(k) Brown v. Wales, L. R. 15 Eq. 142; 42 L. J. C. 45; Spike v. Harding, supra.

(2) Cranworth, L. C. A.-G. v. Stephens, 6 D. M. & G. 133; 25

L. J. C. 890.

(m) A.-G. v. Stephens, supra; Godfrey v. Little, 2 Russ. & M. 630.

(n) Leeds v. Strafford, 4 Ves. 180; See North v. Strafford, 3 P. Wms. 150; see Leeds v. Powell, 1 Ves. sen. 172.

Encroachments.

Encroach

ment by copyholder on

waste.

Property in land above

surface.

It is a general rule that an encroachment made by a tenant advancing the boundary over adjoining land is presumed to be an accretion to the demised land, which must be given up to the landlord at the end of the term (o). Consequently the Statute of Limitations has no application against the landlord during the continuance of the tenancy (p). The doctrine applies equally whether the encroachment is made upon other land of the lessor or upon land of a third party (7). And it applies to land which the tenant is enabled to take possession of by virtue of his position of tenant, though not strictly adjoining to the boundaries of the demised land: as land separated merely by a road or stream, or an inclosure from an adjacent waste or common (r). Upon the same principle it was held that where a copyholder extended his tenement by an encroachment upon the adjoining waste of the manor, there being a custom in the manor for the lord to grant waste as copyhold, the encroachment was an accretion to the original copyhold; the presumption being in favour of a legal title, and of that most favourable to the lord (s). But where the lord took a surrender and made a re-grant of the original tenement without the accretion, it was held that he had precluded himself from claiming it (†).

Property in land as defined and limited by superficial and below the boundaries presumptively carries with it everything contained beneath the surface, as mines and minerals, also the above the surface with whatever use can be made of it (u). Therefore, if an owner of land build anything

space

(6) Bryan v. Winwood, 1 Taunt. 208; Doe v. Jones, 15 M. & W. 580; Lisburne v. Davies, L. R. 1 C. P. 259; 35 L. J. C. P. 193.

(p) Whitmore v. Humphries, L. R. 7 C. P. 1; 41 L. J. C. P. 43.

(q) Andrews v. Hailes, 2 E. & B.

349.

(r) Andrews v. Hailes; Lisburne v. Davies, supra.

(s) A.-G. v. Tomline, L. R. 5 C. D. 750; 46 L. J. C. 654.

(t) S. C. on appeal, L. R. 15 C. D. 150; in which case the Court of Appeal thought it doubtful whether the doctrine of encroachment by a tenant operating for the benefit of the landlord applied at all to copyhold tenure. (u) Co. Lit. 4 a.

projecting over the boundary, as the cornice or eaves of a house, it is primâ facie wrongful to the owner of the adjoining land, by encroaching upon his space and preventing him from building above the level of the projection. The remedy of the latter is either by himself abating the nuisance, or by bringing an action for damages and for an injunction to remove it; and in such action the encroachment imports in law a nominal damage, without allegation or proof of any special damage arising from it (x).—By the right of abating a nuisance the owner of a close can justify cutting off the branches of trees which grow over the boundary from the adjacent land; and in a case where a person had turned a horse into his field, which was poisoned and died in consequence of eating branches of yew growing over the boundary, it was held that he might recover the loss from the owner of the trees (y). Upon the same principle the owner of a house or land may prevent the carrying of telegraph wires through the air over his property (z).

Land may be divided into separate properties by hori- Partition of zontal as well as vertical partition, and the surface and the land horizontally. strata beneath the surface may be appropriated and held as separate tenements, as in the case of mines and minerals held in separate ownership. Upon this principle a house may be divided into flats and let in separate tenements, which for all ordinary legal purposes may be regarded as separate houses (a).—Under the Lands Clauses Consolida- Lands Clauses tion Act, 1845, 8 & 9 Vict. c. 18, which provides for railway and other companies acquiring land for the purposes of their undertakings, the word "land" is taken in the ordinary sense as including the whole space above and

(x) Baten's Case, 9 Co. 53 b; Fay v. Prentice, 1 C. B. 828; Harris v. De Pinna, L. R. 33 C. D. 260; 56 L. J. C. 348.

(y) Crowhurst v. Amersham Burial Board, L. R. 4 Ex. D. 5; 48 L. J. Ex. 109.

(z) Wandsworth v. United Telephone Co., L. R. 13 Q. B. D. 904; 53 L. J. Q. B. 449.

(a) Yorkshire Ins. Co. v. Clayton, L. R. 8 Q. B. D. 421; 51 L. J. Q.B. 82. As to mines and minerals, see post, p. 51.

Act.

below the surface; and a railway company, although requiring only a portion of such space for the purpose of a tunnel or a bridge, are bound to take the whole; also, having taken it, the space not required for the tunnel or Superfluous bridge does not become "superfluous land," which the company is directed by the Act, s. 127, to sell (b). But the company's special Act may give the power of making only a tunnel through the land or a bridge over it, without taking the space above and below (c).

land.

(b) Re Metropolitan District Ry. and Cosh, L. R. 13 C. D. 607; 49 L. J. C. 277; Pinchin v. Blackwall Ry., 5 D. M. & G. 851; 24 L. J. C. 417; Mulliner v. Midland Ry., L. R. 11 C. D. 611; 48 L. J. C.

258; Ware v. London and Brighton Ry., 52 L. J. C. 198.

(c) Hill v. Midland Ry., L. R. 21 C. D. 143; 51 L. J. C. 774; Great Western Ry. v. Swindon Ry., L. R. 9 Ap. Ca. 787.

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